Volume 111 — Washington Reports, Second Series

<bold>[1] Sales — Auctions — Warranties — Disclaimers.</bold> The implied warranties of the U.C.C. apply to sales of goods by means of an auction. Although clearly communicated disclaimers of implied warranties are not against public policy in an auction sale, a disclaimer statement is inconsistent with a statement expressly warranting the goods and is ineffective as to such express warranty. <bold>[2] Consumer Protection — Action for Damages — Elements.</bold> To recover damages in a private action under the Consumer Protection Act (RCW 19.86), a party must prove an unfair or deceptive act which occurred in the conduct of the defendant's business and affects the public interest, and that the deceptive act caused damage to the plaintiff.<page_number>Page 397</page_number> <bold>[3] Consumer Protection — Action for Damages — Unfair or</bold> <bold>Deceptive Conduct — What Constitutes.</bold> Conduct constitutes an unfair or deceptive act or practice, for purposes of the Consumer Protection Act (RCW 19.86), if it has the capacity to deceive a substantial portion of the public even though there is no intent to deceive. <bold>[4] Consumer Protection — Action for Damages — Effect on Public</bold> <bold>Interest — Consumer Transaction — Factors.</bold> For purposes of a private action seeking damages under the Consumer Protection Act (RCW 19.86), a consumer transaction has an effect on the public interest if the deceptive act was committed in the course of the defendant's business, it was part of a pattern or generalized course of conduct, similar acts were repeated prior to the act involving the plaintiff, there is a real and substantial potential for repetition of the act, and the single act complained of affected or would likely affect other consumers. <bold>[5] Consumer Protection — Action for Damages — Reasonableness</bold> <bold>Defense — Applicability.</bold> The defense of reasonable acts or practices or acts not injurious to the public interest (RCW <cross_reference>19.86.920</cross_reference>) is not limited to antitrust cases and is available to a defendant in a private action under the Consumer Protection Act (RCW 19.86). <bold>[6] Consumer Protection — Action for Damages — Attorney Fees —</bold> <bold>Determination — In General.</bold> In determining the attorney fee awarded to a successful plaintiff in a private action under the Consumer Protection Act (RCW 19.86), the amount in controversy and the number of persons harmed are not determinative. Fees should be awarded only for attorney time and effort expended on legal theories pertaining to a violation of the act. Neither "high quality" work nor the fact that the attorney's fee was contingent on success will, by itself, merit multiplying the normal rate.

<bold>[1] Appeal — Basis for Decision — Issues Raised by Court —</bold> <bold>Briefs and Argument — Necessity.</bold> In exercising its inherent authority to decide an appeal based on the issues it finds to be determinative, an appellate court may consider issues not raised by the parties and may dispense with briefs and argument on these issues if the court concludes they are unnecessary. <bold>[2] Utility Services — Nuclear Power — Safety Regulation —</bold> <bold>Federal Preemption.</bold> Federal constitutional, statutory, and administrative law occupies the entire field of safety at nuclear power facilities, and the states have no regulatory power in this area except for limited powers expressly granted to them by the federal government. <bold>[3] Searches and Seizures — Search — What Constitutes —</bold> <bold>Urinalysis Drug Testing of Employees.</bold> Compulsory urinalysis under federal regulations to test for drugs as a condition of employment constitutes a search for purposes of the Fourth Amendment. <bold>[4] Searches and Seizures — Administrative Search — Validity —</bold> <bold>Test.</bold> A warrantless administrative search conducted within a pervasively regulated industry is valid under the Fourth Amendment if there is a substantial governmental interest underlying the regulation, the warrantless search is necessary to further the interest underlying the regulation, and the search procedures provide a constitutionally adequate substitute for a warrant. <bold>[5] Utility Services — Nuclear Power — Safety Regulation —</bold> <bold>Urinalysis Drug Testing of Job Applicants.</bold> Requiring prospective employees to undergo urinalysis to test for drugs as a condition of working at a nuclear power facility constitutes a valid warrantless administrative search under the Fourth Amendment.<page_number>Page 425</page_number> DORE, J., did not participate in the disposition of this case.

<bold>[1] Appeal — Decisions Reviewable — Moot Questions — Public</bold> <bold>Interest — In General.</bold> In order to decide a matter that is moot on the basis of the continuing and substantial public interest exception, an appellate court must determine that the issue is of a public nature, that an authoritative determination is desirable to provide future guidance to public officers, and that the issue is likely to recur. Actual application of these criteria to each case where the exception is urged is necessary to ensure that a real benefit to the public interest in reviewing a moot case outweighs the harm from an essentially advisory opinion. SMITH, J., did not participate in the disposition of this case.

<bold>[1] Prosecuting Attorneys — Conflict of Interest —</bold> <bold>Disqualification — Previous Representation of Defendant.</bold> Under RPC 1.9(a) the prosecuting attorney of a county is disqualified from acting in a criminal case if the defendant previously consulted professionally with the prosecuting attorney regarding matters so closely interwoven with the offense presently charged as to be in effect a part of that offense. <bold>[2] Prosecuting Attorneys — Deputy Prosecutors —</bold> <bold>Disqualification of Prosecutor — Effect.</bold> When the prosecuting attorney of a county is disqualified from acting in a criminal case based on his representation of the defendant in the same case or in a matter so closely interwoven with the same case as to be in effect a part of that case, the entire attorney staff directed by the prosecuting attorney will ordinarily be disqualified from prosecuting the case and a special deputy prosecuting attorney should be appointed. SMITH, J., did not participate in the disposition of this case.