Appellate court upholds eviction; Kingston Adventures may reopen at new location elsewhere

The state Court of Appeals Division I upheld the Port of Kingston’s eviction of Kingston Adventures from the marina, Dec. 7. Beth Brewster, who with her husband Rob owns Kingston Adventures, had alleged that the port evicted her business in retaliation for her criticizing the port in public. She also alleged port officials discriminated against her because she is a woman.

KINGSTON — The state Court of Appeals Division I upheld the Port of Kingston’s eviction of Kingston Adventures from the marina, Dec. 7.

Beth Brewster, who with her husband Rob owns Kingston Adventures, had alleged that the port evicted her business in retaliation for her criticizing the port in public. She also alleged port officials discriminated against her because she is a woman.

But the court ruled that retaliatory eviction may be asserted as a defense “only if the tenant is not otherwise in breach of the lease agreement. Here, the defendants were in breach of the berth leases. They did not have the Port’s written permission for putting the berths to commercial use. The business use agreement they originally had with the Port expired in 2012 and was not renewed. In those circumstances, the defendants did not have a right to stay in possession even if they could show the Port was discriminating or retaliating against Beth Brewster.”

Meanwhile, Brewster has closed her business’ Kingston location and indicated on her Facebook page that she may open elsewhere. In a phone conversation with the Herald on Dec. 4, she said she does not know where her new location might be.

She and Tania Issa, a Kingston resident, are each suing the port for failing to adequately respond to their requests for public records. They have filed more than 200 requests for records to prove their allegations of gender discrimination, harassment and favoritism at the port.

According to the Court of Appeals decision: In April 2010, Rob and Beth Brewster rented a single berth at the Port of Kingston’s small watercraft facility to store a family kayak. Later that year, Beth Brewster started a small watercraft rental business, Kingston Adventures LLC and leased eight berths from the port for $25 per month each. Each berth was covered by a “Small Watercraft Facility Lease Agreement.” Each lease could be terminated by either party on 30 days’ written notice, and required Brewster to obtain the port’s prior written permission before using the berth for any commercial purpose.

On Jan. 26, 2011, Kingston Adventures obtained the port’s written permission to use the eight berths for commercial purposes. This was done through a business use agreement. The business use agreement expired by its own terms on Jan. 26, 2012.

“There were attempts to renew the business use agreement, but the parties reached an impasse and negotiations fell through,” the court wrote. “Nevertheless, Kingston Adventures continued to use the berths. The company tendered the rent monthly, and the port accepted it.”

In 2013, the relationship between the port and the Brewsters deteriorated. In May 2014, the port served a Notice to Terminate Tenancy directed to “Rob and Beth Brewster, their marital community, and Kingston Adventures.” The berths were to be surrendered on or before June 30, 2014.

In June 2014, Kingston Adventures filed a federal civil rights lawsuit against the port, alleging that the port’s decision to evict the business was the product of gender discrimination and a desire to retaliate against Beth Brewster “for exercising her First Amendment right to criticize the Port.”

The berths were not surrendered by June 30. On July 2, the port filed an unlawful detainer action in Kitsap County Superior Court. On Aug. 1, Superior Court Judge Jennifer Forbes upheld the eviction and awarded the port $451.36 for the rent and leasehold tax due. She later awarded the port $13,081.21 for costs and attorney fees.

While the Court of Appeals upheld the eviction, it remanded to Superior Court for jury trial the issue of who is responsible for the fees. “The Port sued the Brewsters individually and as a marital community. The Port also sued Kingston Adventures,” the court wrote. But the signatures on the business use agreement “indicate that the Brewsters were signing for the company, not individually. Thus, the defendants submitted evidence that the tenant occupying the property was Kingston Adventures, not the Brewsters. It is not clear that the Brewsters are responsible — individually or as a marital community — for the rent, damages, and attorney fees due to the Port.”

 

 

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