1-2111-10765-3

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE CITY OF ST. PAUL

In Re the License Application of the

St. Paul Firearms Co., 634 Snelling Avenue North, St. Paul, Minnesota

ORDER DEFINING ISSUES

By a statement filed October 28, 1996, the Hamline-Midway Neighborhood Stability Coalition ("the Coalition") filed its statement of the issues it seeks to raise in this proceeding. A reply was filed by the Applicant, St. Paul Firearms Co. ("SPFC" or "the Applicant"), in a statement of objections filed on October 30, 1996. The City of St. Paul filed no comment on the statement of issues.

The Coalition is represented in this matter by Thomas Darling, Esq., Gray, Plant, Mooty, Mooty & Bennett, P.A., 3400 City Center, 33 South Sixth Street, Minneapolis, Minnesota 55402-3706 and by Richard D. Snyder, Esq., Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, Minnesota 55402. The Applicant, SPFC, is represented by David Feinwachs, Esq., 2227 University Avenue, St. Paul, Minnesota 55114. The City of St. Paul is represented by Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102.

Based upon the filings by the parties and for the reasons set out in the following Memorandum,

IT IS HEREBY ORDERED that the issues upon which testimony will be taken at the hearing in this matter are:

1. Will the Applicant operate its business as a gun shop as defined by the Legislative Code?

2. Is the Applicant a fit licensee? Specifically,

a. Has the Applicant sold cigarettes to a minor?

b. Has the Applicant carried a weapon on the public sidewalk?

c. Has the Applicant displayed firearms on the public sidewalk?

3. Will the Applicant operate his business so as to constitute a public nuisance? Specifically,

a. Will the operation of the Applicant's business attract crime?

b. What is the Applicant's involvement, if any, in the "KILLERBKILD" venture?

4. Will the City of St. Paul be able to verify the Applicant's compliance with the conditions proposed for the license?

Dated this

1st

day of

November

1996.

GEORGE A. BECK

Administrative Law Judge

MEMORANDUM

The Coalition has presented four issues that it seeks to litigate in this proceeding. The first is whether the Applicant is a gun shop within the St. Paul Legislative Code § 60.207. Gun shops are not permitted in B-2 zoning districts, which is where the Applicant is located. The Coalition suggests that the Applicant will not be able to meet the requirements relating to gross sales and display space contained in the Legislative Code. The Applicant replies that the definition of a gun shop is a matter of square feet of display space and adherence to gross revenue requirements. He suggests that there is little room for debate as to display space and that whether the Applicant keeps its firearm sales at less than one-half of total gross revenue is a matter which can only be determined in the future. However, the Coalition expects to demonstrate that the Applicant cannot meet the floor space requirement and that it does not intend to comply with the total gross sales requirement in good faith. The issue is appropriate for hearing.

Secondly, the Coalition argues that the Applicant is not a fit licensee in seven different respects. The issue of whether or not the licensee currently is selling firearms without a license is a legal issue that can be argued without the taking of testimony and is a matter more relevant to a court proceeding than to this administrative license application case. Items No. 2 and 3 in the Coalition's statement at page 3 are matters which were raised, litigated and determined in the prior license proceeding in 1993. They need not be relitigated in this proceeding, nor would it be reasonable to require the Applicant to again meet these allegations. The Coalition also suggests that the Applicant sold cigarettes to a minor in violation of law and the conditions on his license. Since this allegation may have some relevance to the Applicant's fitness as a licensee, it is appropriate for hearing. The Coalition suggests that the Applicant advertised and sold "Black Talon" bullets. The Applicant suggests that to do so is legal and there is no indication on the part of the Coalition that this activity is either illegal or in some way relates to fitness. Accordingly, it is not an appropriate issue for hearing. The Applicant agreed that issues No. 6 and 7, namely whether the Applicant carried a weapon on the public sidewalk and whether he has displayed firearms on the public sidewalk are relevant issues for hearing.

The Coalition also raises the issue of whether or not the firearms company would operate as a public nuisance. Generally, a license may not be awarded if a business operates and maintains itself in a manner that annoys, causes injury or endangers the safety, health, morals, comfort and repose of a considerable number of members in the public. The Coalition argues that the neighborhood surrounding the proposed location is residential and incompatible with the firearm company's business. However, the nature of the neighborhood and the effect of the proposed business upon the neighborhood was fully litigated in the 1993 proceeding with findings made by the Administrative Law Judge and a review and final decision made by the City Council. The council will have the prior administrative record available to it. The parties may wish to consider incorporating it into this record by stipulation. The City Council's determination in 1993 was that an objector to the license must show that any harm which might result is somehow different from that which is the natural and probable result of the operation of the regulated business. As the Applicant points out, the City has made a determination through its Ordinance that the Applicant's type of business is appropriate in the area proposed.

Accordingly, in order to demonstrate that the business would operate as a nuisance, the Coalition must show that the operation of the business will produce an unnecessary and unexpected result, which will annoy or endanger members of the public. Two issues raised by the Coalition satisfy this test. First, whether or not the way that the Applicant will operate its business will attract crime. The Coalition alleges two attempted and one successful burglary recently. The Applicant argues that it was the victim of these crimes and is not responsible for them. Nonetheless, the Coalition is entitled to attempt to show that it is the Applicant's operation of the business which has contributed to the robberies. Another relevant nuisance issue is the recent distribution of a flyer in the neighborhood announcing a new venture related to the sale of guns. The Coalition suggests that it has some evidence that this venture is related to the Applicant. The Applicant denies this. Should the Coalition be able to show that the Applicant is related to the distribution of the flyer or the business it proposes, further evidence on this issue would be appropriate for this proceeding.

Lastly, the Coalition suggests that an appropriate issue is whether or not the City will be able to verify whether the Applicant is abiding by the conditions imposed on its license. The Coalition believes that the Applicant cannot comply with the proposed conditions and that the City cannot verify the conditions it proposes. The Applicant argues that the question of how the City will be able to verify whether the Applicant is abiding by the law and the conditions of its license is a matter entirely at the discretion of the City. Nonetheless, the City Council may well see it as relevant to its decision on this license application to know whether or not the proposed conditions can be verified. The issue is appropriate for hearing. However, on or before 4:30 p.m., November 6, 1996, the Coalition must specify which of the proposed conditions it will seek to show cannot be verified and briefly summarize its position.

G.A.B.