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OAH 2-6010-20557-2 |
STATE OF
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE CITY OF
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In the Matter of
the Class A On Sale Liquor License with Sunday |
ORDER ON MOTION IN
LIMINE |
The
above-entitled matter was scheduled for hearing before Administrative Law Judge
Raymond R. Krause (“ALJ”) on October 8, 2009 on Respondent’s Motion in Limine.
Joel Fussy, Assistant Minneapolis
City Attorney, appeared on behalf of the City of
Respondent’s motion asks the ALJ
to exclude several types of evidence from the hearing.
IT IS HEREBY ORDERED:
1.
The
Motion in Limine is hereby DENIED.
2.
The
hearing in this matter is set for January
25, 26, 28, and 29, 2009, beginning at 9:00 a.m. at the Office of
Administrative Hearings.
Dated: October 13, 2009
s/Raymond
R. Krause
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RAYMOND R. KRAUSE Chief Administrative Law Judge |
MEMORANDUM
Evidence of Violations
Occurring Prior to September 25, 2008
Respondent
requests that any evidence of violations of the
Respondent
argues that the legal principles of res judicata, estoppel, and laches all
prevent such evidence from coming into the record. Essentially, Respondent argues that since the
settlement on September 25, 2008, brought Respondent into substantial
compliance, the City cannot now resurrect previous violations in order to
substantiate a heavier penalty if the current violations are proven. Respondent maintains that if the previous
violations are to be used it must go back several years to find witnesses and
other evidence to try to refute those charges.
The
City responds that these previous violations are simply evidence that supports
progressive discipline in addition to any discipline arising from the alleged
violations that are the subject of this action. The City simply asks the ALJ to take judicial
notice of these violations when considering a recommendation to the City
Council. Furthermore, the City’s
position is that previous violations were resolved against Respondent either by
paying the requisite fine or as part of the settlement agreement of September
25, 2008. The City contends that they do
not need to be litigated now since they were essentially admitted through the
payment of the fine or as part of the settlement.
Evidence
of previous violations, used as a basis to justify progressive discipline, is a
commonly accepted practice in licensing schemes of all kinds.[1]
Respondent had the opportunity to appeal
the charges and chose not to do so. The
fact that Respondent chose not to contest the alleged violations in previous
years and chose instead to pay the administrative citation or resolve the
alleged violations through settlement rather than litigation, does not now
entitle Respondent to claim innocence or prevent the City from citing them as
part of Respondents administrative history.
Violations Occurring Outside
the Premises
Respondent
next moves to exclude any evidence of conduct occurring outside of its
premises. Respondent cites In re On-Sale Liquor License, 763 N.W.
2d 359 (Minn. App. 2009) (the Gabby’s decision). The ALJ recognizes the precedent set by this case;
however, the Notice of Hearing is replete with charges occurring on premises. While the Notice does contain some allegations
that may be considered “off-premises” it is unclear given the information in
the Notice, whether those charges should properly be excluded under the
“Gabby’s” decision. It is improper to
issue a blanket exclusion when it is unclear what, if any, evidence the City
will offer in this regard. This can be
done through objections during the course of the hearing.
Hearsay Evidence
Respondent
seeks to have the ALJ exclude evidence which may be offered that is considered
double hearsay. The rules that apply to
contested case hearings under Chapter 14, allow for the admission of hearsay
that possesses probative value commonly accepted by prudent persons in the conduct
of their affairs. It is premature to
exclude the evidence purely on the basis that it is hearsay. Once the ALJ has the opportunity to hear or
see such evidence, the ALJ may reject it, accept it or vary the weight he gives
such evidence, based on its credibility.
R. R.
K.
[1] See In the Matter of the Grocery Food and Tobacco Dealer Licenses Held by Amina, Inc. d/b/a 4-You Foods, OAH No. 11 6010-17272-3; and In the Matter of the Grocery and Tobacco Dealer License Held by Uncle Bill’s Market Inc., OAH No. 7-6010-17292-3.