12-6010-16747-3
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE CITY OF
|
In the Matter of |
ORDER DENYING MOTION TO COMPEL DISCOVERY |
On September 27, 2005, subsequent
to a Prehearing Conference in this matter, counsel for the
The Respondent
is represented by Randall D.B. Tigue, Attorney at Law,
The City of
Based on all the filings and proceedings herein, the Administrative Law Judge makes the following:
ORDER
IT
IS ORDERED that the Motion to Compel Discovery filed on behalf of
Dated this 6th day of October 2005
/s/_by Beverly Jones Heydinger
STEVEN M. MIHALCHICK
Administrative Law Judge
MEMORANDUM
This case
involves a Respondent’s non-conforming adult entertainment center, which is
located in the City of
In a contested case proceeding, OAH rules allow parties to conduct discovery according to the Minnesota Rules of Civil Procedure.[1] Those rules provide, among other things, that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.”[2] The Civil Rules also provide that “[t]he information sought need not be admissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”[3] OAH’s discovery rule goes on to place some additional requirements on the party seeking discovery. If the party from which discovery is being sought objects to the request, the OAH discovery rule requires:
In the motion proceeding, the party seeking discovery shall have the burden of showing that the discovery is needed for the proper presentation of the party’s case, is not for purposes of delay, and that the issues or amounts in controversy are significant enough to warrant the discovery.[4]
Requests numbers 5, 7, 8 and 9 of the Respondent’s Request for Admissions requested the following admissions:
5. That as of February 21, 1992, Respondent’s establishment and
B.J. ‘s bar on the corner of Washington Avenue North and West Broadway were the only non-conforming liquor-serving adult entertainment centers within the City of Minneapolis.
7. That at the time the 2002 amendment was
enacted Respondent’s establishment and B.J.’s were the only non-conforming
adult entertainment centers in the City of
8. That at the time the 2002 amendment containing the amortization provision was enacted the Minneapolis City Council had before it no evidence that either of the existing establishments, in the preceding 10 years, had caused any adverse secondary effects on the surrounding community, including, but not limited to:
a. An increase in crime, either within the establishments or in the neighborhood abutting the establishments;
b. A decline in property values, either within the establishment, or in the area immediately abutting the establishment;
c. The creation of any indicators or (sic) urban blight.
d. Any adverse secondary effects other than the above-mentioned three.
9. At the present time, the City of
Interrogatories numbers 2 and 3 asked:
2. If your response to any of the request for admissions is anything other than a complete admission thereof, set forth with particularity all facts upon which you rely for each qualification or denial.
3. If your answers to request for admissions Nos. 8 and 9 are anything other than a complete admission thereof, set forth the following:
a. Identify all adverse secondary effects attributable to any non-conforming adult entertainment center from February 21, 1992 to the present date.
b. Identify all facts upon which you rely for the attribution of such adverse secondary effects to either of the non-conforming uses.
c. Identify by general description date, and custodian all documents which support such a conclusion.
d. Identify the method by which either the documents or the underlying facts were brought to the attention of the Minneapolis City Council prior to the enactment of the 2002 amendment amortizing non-conforming adult entertainment centers.
The City objected to these requests and interrogatories on the grounds that the “secondary effects” information these requests and interrogatories sought information was irrelevant to the issue of amortization in this proceeding. The Respondent argues that information about adverse “secondary effects” is a relevant factor for establishing the amortization period and is relevant to questions about the reasonableness of the amortization period.
From the
information presently available in the file, it appears that Respondent has
owned and operated a licensed bar that features adult entertainment in the City
of
In determining whether such dates should be extended, the City Council may consider information relating to the useful life of the non-conforming use and any other factors or information relevant to determination of the reasonableness of the amortization period. Information relevant to the useful life of the non-conforming use may include: The cost of the property and any improvement, the tax depreciation status of the property or use, the condition of the structures on the property, the potential for alternative use of the property, and the potential costs to relocate the use or otherwise bring the use into compliance with the zoning district requirements.[7]
Respondent argues that in the addition to the factors listed in the ordinance, the City must also consider whether the non-conforming user is causing adverse “secondary effects.” Respondent argues that the “any other factors” wording in the ordinance compels consideration of the presence or absence of adverse “secondary effects” as a factor in determining the reasonableness of the amortization period. The ALJ reads the ordinance differently. The "any other factors" clause relates to information that pertains to the business and the premises. If City wanted to consider factors beyond those affecting the business and the premises it could have included such factor(s) in the ordinance.[8] In order to be constitutional, a zoning ordinance must address the negative secondary impacts of adult retail use and entertainment establishments.[9] The issue in this case, however, is the reasonableness of the amortization period as defined by the ordinance, which is conceptually distinct from the First Amendment considerations of whether the amortization provision in the ordinance is constitutional.[10] Respondent furnishes no authority for the proposition that reasonableness of an amortization period requires consideration of adverse “secondary effects.”
Respondent also objects to the City’s responses to discovery regarding its licensure practices. Respondent argues that the City should be obligated to produce “all” documents related to its licensure practices. Such a discovery request is overly broad and cannot be compelled. Furthermore, the City has supplemented its discovery responses. For these reasons Respondent’s motion to compel discovery is denied.
S.M.M.
[1]
[2]
[3]
[4]
[5]
[6]
City of
[7]
[8]
See AVR, Inc. v. City of
[9]
[10]
Jake’s Ltd. v. City of Coates, 284
F.3d 884, 889 8th Cir. 2002) (Holding that application of an amortization
provision is constitutional as long as it complies with