7-6020-15158-3
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE ST. PAUL CITY COUNCIL
In the Matter of the Renewal of the FINDINGS OF FACT,
Currency Exchange License of Team CONCLUSIONS AND
Management, Inc., d/b/a Community RECOMMENDATION
Financial Center
The above matter came on for hearing before Administrative Law Judge (ALJ) Richard C. Luis at the St. Paul City Hall on November 21, 2002. The record closed at the conclusion of the hearing that day.
J. Patrick Brinkman, Esq., Felhaber, Larson, Fenlon & Vogt, P.A., 225 South Sixth Street, Minneapolis, Minnesota 55402-4302, appeared on behalf of the Licensee/Applicant, Team Management, Inc. (TMI), d/b/a Community Financial Center. Scott Lambert, Executive Vice President, Minnesota Auto Dealers Association (MADA), 277 University Avenue West, St. Paul, Minnesota 55103, appeared on behalf of MADA (Objector). Virginia D. Palmer, Assistant St. Paul City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102, appeared on behalf of the City’s Office of License Inspection and Environmental Protection (City, LIEP).
This Report is a recommendation, not a final decision. The St. Paul City Council will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions and Recommendation. Pursuant to St. Paul Legislative Code § 310.05(c-1), the City Council will provide the Applicant and any interested persons an opportunity to present oral or written argument to the Council before it takes final action during or after its hearing on December 4, 2002. Parties should contact the St. Paul City Council Offices (651/266-8560) to determine the procedure for presenting argument.
Has the Objector shown by a preponderance of the evidence that the Applicant/Licensee fails to meet the requirements for renewal of its currency exchange license because the Applicant/Licensee has caused significant adverse consequences or impacts upon the neighborhood within 300 feet of its business premises, within the meaning of § 381.03(b)(4)(ii) of the St. Paul Legislative Code?
Based on all the proceedings herein, the Administrative Law Judge makes the following:
1. The Applicant/Licensee has operated a currency exchange business near the University Avenue/Rice Street intersection in St. Paul since 1986. Until early 2002, the business was operated at the southwest corner of the intersection.
2. In the winter of 2002, the Applicant/Licensee, which does business under the name of Community Financial Center, relocated 2 1/2 blocks west of its old location on University Avenue, on the north side of the street at 259 University Avenue West. In connection with this move, it filed an application for licensure, which was denied initially because the proposed location was in violation of the City’s requirement that the business be at least 100 feet from a residential property. After a Council hearing, TMI received a variance from the 100-foot setback requirement and the license was granted to operate a currency exchange at 259 University Avenue West.
3. MADA, located next door at 277 University Avenue West, intervened in the variance hearing to express its concern that TMI was not providing sufficient off-street parking, but the variance was granted and TMI opened its office at 259 University Avenue West in April, 2002. TMI shares the 259 building with an employment service that operates under the business name of Team Personnel. Team Personnel occupies the west half of the ground floor at 259 University Avenue West, and TMI occupies the east half of the ground floor.
4. In October 2002, TMI applied for renewal of its currency exchange license. Objection to the renewal was made by MADA, and this hearing process followed. In a letter objecting to the renewal of TMI’s license, MADA’s Executive Vice President, Scott Lambert, complained that the Licensee’s customers are “constantly using our parking lot” and “use it to dump their garbage, and on two occasions my staff has witnessed currency exchange customers urinating in our lot while they get into their cars”. The letter noted also that people have remained in the trespassing cars while waiting for people using the Licensee’s services, and that “this is intimidating to my staff and customers”.
5. MADA is located on a lot immediately west of the building shared by TMI and Team Personnel. MADA’s building is on the west side of the lot. The balance of the lot is a paved, surface parking area that can accommodate 20 to 40 cars.[1] The MADA building is situated so that individuals in the building are unable to see the progress of anyone leaving the parking lot to walk east, along the north side of University Avenue in front of the 259 (Team Personnel, Community Financial Center) building. No surveillance equipment has been set up at MADA to follow such parkers to wherever they go, nor has MADA attempted to follow them.
6. A pedestrian walking east from the parking lot (or from the sidewalk in front) at 277 University Avenue West can go to Team Personnel, Community Financial Center, or Ron Saxon Ford, or pass by all three to other locations along University Avenue.
7. MADA staff people have observed trespassers drive into and park in MADA’S parking lot without coming inside for business with MADA, and also have observed litter and evidence of urination in the MADA parking lot. MADA alleges that the nuisances described (see also Finding 4) did not exist before TMI moved to 259 University Avenue West, so, by inference, TMI is the cause of the nuisances.
8. A surveillance camera is set up, facing west from TMI (toward MADA’s property), which can observe pedestrians coming out of or into MADA’s parking lot. Anyone observed coming to use TMI’s facilities from the parking lot is turned away and told to move their car. Officials of TMI and Team Personnel have never observed more than two vehicles belonging to their customers/clients in MADA’s lot at any given time. Both businesses also have signage in their window warning against parking in the adjacent (west) lot and similar signs (in English and Spanish) at their service counters inside. The window signs are recent additions, but the signs on TMI’s counter have been in place since the business relocated to 259 University Avenue West.
9. Team Personnel provides services to about 200 people per day, and TMI has 75-150 customers daily (Monday through Saturday). Team Personnel’s clients are in the building for visits averaging five minutes. TMI’s customers are on its business premises an average of three to four minutes for the typical transaction. Only 10 percent of these customers drive to 259 University Avenue West, as most get there by walking or taking public transportation. The clientele is primarily working, lower-middle class people who live in the immediate neighborhood and, for TMI, 90 percent of the business is with regular, repeat customers. For those driving vehicles, TMI provides several parking spaces in the lot behind its building location, and several spaces are leased at the University Bank Building lot across University Avenue and one block east. The majority of the other drivers park where they can on University Avenue.
10. The building at 259 University Avenue West, which houses TMI and Team Personnel, was owned by the Sypniewski family between 1961 and 2001. The family lived upstairs in the building during that time, and, from 1961 to 1991, operated a commercial business (Red’s Pizza) on the ground floor. During the entire time they lived and worked at 259 University, the property and the surrounding neighborhood buildings experienced problems with litter and public urination.
11. Team Personnel moved in at 259 University Avenue West approximately four weeks before TMI/Community Financial Center did. After Team Personnel moved in, and before TMI/Community Financial Center relocated to 259 University, MADA complained to Team Personnel that Team Personnel’s clients were trespassing in MADA’s lot.
12. The LIEP office does not oppose the Application. It believes that the trespass, sanitation and littering issues alleged fail to amount to “serious adverse consequences or impact on the neighborhood within 300 feet of the exchange” within the meaning of the St. Paul Legislative Code. Even if the combined nuisances alleged amount to “serious consequences or impacts”, LIEP believes that the evidence provided is insufficient to connect the alleged problems with TMI or its customers.
Based on the above Findings, the Administrative Law Judge makes the following:
1. The St. Paul City Council and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.55 and 53A.02 and St. Paul Legislative Code §§ 310.05, 310.06 and 381.02.
2. The City of St. Paul has fulfilled all relevant substantive and procedural requirements of law and rule.
3. The City of St. Paul has given proper notice of the hearing in this matter, including proper notice in accordance with the requirements set forth in Minn. Stat. Chapter 53A and St. Paul Legislative Code Chapter 381.
4. Section 381.03(b)(4)(ii) of the St. Paul Legislative Code provides that a currency exchange license renewal may be disapproved if:
The existing currency exchange has caused significant adverse consequences or impacts upon the neighborhoods within three hundred (300) feet of the exchange.
5. The Objector (MADA) has failed to establish by a preponderance of the evidence that the presence of the Licensee/Applicant in its location at 259 University Avenue West has resulted in a significant adverse consequence or impact upon the neighborhood within 300 feet of its location within the meaning of § 381.03(b)(4)(ii) of the St. Paul Legislative Code.
Based on the above Conclusions, the Administrative Law Judge makes the following:
IT IS RECOMMENDED that the St. Paul City Council APPROVE the renewal application for the currency exchange license of Team Management, Inc., d/b/a Community Financial Center, in the premises at 259 University Avenue West.
Dated this 22nd day of March, 2003
/S/ Richard C. Luis
_____________________________
RICHARD C. LUIS
Administrative Law Judge
Reported: Taped, no transcript
NOTICE
Pursuant to Minn. Stat. § 53A.04, the St. Paul City Council is required to forward its approval or disapproval of the license application to the Commissioner of Commerce of the State of Minnesota for the Commissioner’s approval or disapproval. If the application is denied, the Commissioner shall mail notice of the denial and the reason therefor to the Applicant.
MEMORANDUM
The record fails to establish that the problems experienced in MADA’s parking area are caused by the presence of the Licensee/Applicant’s business. MADA’s evidence has several weaknesses: (1) Its only witness, MADA’s Executive Vice President/ Executive Director, who supervises the staff at 277 University Avenue West, did not observe personally the vast majority of the incidents or occasions that gave rise to MADA’s objection. His personal office faces a direction opposite the parking area, and the rest of the events described in his testimony were related to him by his employees. That hearsay has been discounted accordingly; (2) There is very little evidence that any of the people who trespass by parking their cars in MADA’s lot are there to do business with TMI specifically. MADA’s evidence fails to establish any direct or actual connection between trespassing vehicles and TMI customers, and the testimony of TMI’s witnesses that they have seen “one or two” trespassing vehicles at any given time is insufficient to establish a “significant adverse impact”, in light of the fact that customers are only on the premises for three to five minutes. In addition, the evidence does not specify whether such “trespassers” are present to visit TMI or Team Personnel, except through a speculative estimate of 50 percent each. Another TMI witness stated that one person per day is seen by him parking illegally in MADA’s lot. Given the short duration of an average visit to TMI, that evidence establishes no more than a de minimus impact, far short of the “significant adverse impact” required; (3) The strongest evidence presented directly by MADA is inferential only. That is, because the problems complained of did not arise until TMI/Community Financial Center moved in next door, the problems associated with trespassing vehicles and their occupants must be attributable to the impact of the new business. This inference is weakened by testimony establishing that the same type of problems, particularly littering and public urination, have existed in the neighborhood for years, and in light of the unrebutted testimony that MADA complained of the same problem to Team Personnel before TMI/Community Financial Center began to share the building.
MADA was able to establish that the Licensee does not have signs reminding people not to park in the MADA lot in the Laotian or Vietnamese languages. In the absence of an establishment of the national origins of the alleged trespassers, the absence of warning signs in particular languages is immaterial.
Even when viewed in a light most favorable to MADA’s position, the cumulated evidence presented by the Objector or through TMI’s witnesses falls short of establishing any “significant adverse impact” from the presence of the Licensee at 259 University Avenue West, so renewal of the license is recommended.
R.C.L.
[1] MADA’s Executive Director testified to the smaller number, while TMI witnesses allege the lot can hold about twice as many vehicles as MADA admits.