A state appeals court has invalidated an eviction initiated by a Kitsap County housing authority, concluding that inconsistencies within the agency’s smoking policy entitled the tenants to a ruling in their favor.
In an opinion issued on July 28, 2026, the Washington State Court of Appeals, Division Two, reversed a prior decision by Kitsap County Superior Court and directed dismissal of the unlawful detainer action brought by Housing Kitsap against Jordan Robertson and Ray Jackson.
The ruling was authored by Judge Rebecca Glasgow and joined by Chief Judge Bernard Veljacic and Judge Meng Li Che.
Robertson had resided at Heritage Apartments in Port Orchard, a Housing Kitsap property designated for families, since 2013. Her boyfriend, Jackson, also occupied the unit.
Under Washington’s Residential Landlord-Tenant Act, evictions must be grounded in specific statutory reasons. Housing Kitsap relied on RCW 59.18.650(2)(n)(i), which permits termination after a tenant commits four substantial violations of a key lease provision within a 12-month period. The agency identified six such breaches over the course of 2024.
Three of those violations stemmed from a single day in February 2024. On that occasion, a property manager observed Robertson smoking outdoors and subsequently arranged for her vehicle to be towed. Robertson approached the scene when the tow truck arrived, prompting further interactions with management.
Housing Kitsap then issued three separate 30-day notices: one citing smoking, one highlighting confrontational conduct and interference with operations, and another accusing her of impeding the tow truck driver. Two additional notices for smoking followed in April and July, and a sixth notice addressed perceived verbal aggression.
A final 60-day notice to terminate was delivered in August 2024, followed by a formal eviction filing in November.
Robertson and Jackson qualified for court-appointed legal representation under a 2021 state law that made Washington the first to ensure counsel for low-income tenants in eviction proceedings.
At a March 7, 2025 hearing, Superior Court Judge Melissa A. Hemstreet ruled that five of the six cited violations were justified, dismissing the notice related to the vehicle tow. She issued a writ of restitution and awarded $7,986 in damages, plus interest—though rent arrears had not been the eviction’s central focus.
Robertson and Jackson appealed and secured a stay by posting a bond.
The appellate panel determined the housing authority’s smoking policy contained internal contradictions that undermined its enforcement. Attorneys for the tenants emphasized that the policy never explicitly prohibited outdoor smoking, leaving its scope open to interpretation.
Courts in Washington typically construe ambiguous lease provisions against the party that drafted them, and the appeals court found the policy sufficiently unclear to trigger that principle.
Earlier iterations of the policy spanned a few paragraphs and restricted smoking in shared spaces as well as within 25 feet of structures. The version in place during 2024 expanded to over three and a half pages but contained a notable omission: its opening paragraph listed locations where smoking was regulated without stating outright that it was forbidden in those areas.
The trial court had placed weight on a line declaring the policy applied to “all outdoor areas.” However, the appeals court noted that the clause immediately following—referencing doors, entrances, windows, and porches—offered an alternative reading, suggesting the restriction might center on areas adjacent to buildings rather than open-air zones more broadly.
Additional language in the policy reassured residents that they were not expected to quit smoking altogether to remain tenable, and it twice noted the authority’s intent to designate certain sections of its developments as non-smoking. The court also criticized the policy’s definitions, particularly its inclusion of sidewalks and parking lots within the term “indoor areas,” a classification the judges described as counterintuitive when applied to open, outdoor spaces.
Federal regulations do not extend to a total prohibition on tobacco use, according to the court panel. The ruling cited 24 C.F.R. § 965.653, which mandates that housing authorities prohibit smoking inside structures and within a 25-foot perimeter, but stops short of requiring further restrictions.
The tenant's legal representative stated that the defendant would testify to smoking only in uncovered parking lots, positioned at least 25 feet from any structure. The panel determined this created a factual dispute that could not be resolved during the show cause hearing.
Violations Counted
The panel's second decision resulted in the dismissal of the case. The housing policy stipulated that three violations "will be considered to be a serious violation of the material terms of the lease."
However, a separate section within the enforcement guidelines stated that a second documented occurrence would result in the termination of tenancy.
Interpreting this ambiguity in favor of the resident, the panel ruled that the three citations regarding smoking were consolidated into a single substantial breach.
This left Housing Kitsap with only three counts: one for smoking and two for abusive language. The authority required four counts to proceed under the statute. The panel added a footnote noting that the two-strike enforcement clause also conflicts with state law.
Court Declines Further Rulings
The court did not address the assertion that the defendant was never a tenant, nor the argument that the trial court improperly refused witness testimony. Housing Kitsap's request for attorney fees was denied because it did not prevail.