8-6020-17788-3
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE CITY COUNCIL
OF
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In the Matter of All Licenses Held by DRJ, Inc., d/b/a Diva’s Overtime Lounge |
ORDER DENYING MOTION FOR SUMMARY DISPOSITION |
Pursuant to a schedule established at the March 5, 2007 Pre-Hearing Conference in this matter, the parties made submissions to Administrative Law Judge Eric L. Lipman regarding the Licensee’s Motion for Summary Disposition.
Andrew J. Dawkins,
Based upon all of the files, records, and proceedings herein, and for the reasons set forth in the accompanying Memorandum,
IT IS HEREBY ORDERED THAT:
1. The Motion for Summary Disposition is DENIED.
2. Counsel for the parties are further directed to confer with each other regarding the sequencing of witnesses at the evidentiary hearing in this matter, now scheduled for March 21st, 22nd and 23rd of 2007, and to report by 4:30 p.m. on March 16, 2007, as to whether any agreements have been reached as to the scheduling of testimony.
Dated this 12th day of March, 2007.
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s/Eric L. Lipman |
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ERIC L. LIPMAN |
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Administrative Law Judge |
MEMORANDUM
DRJ’s request
for Summary Disposition pivots on the meaning, reach and effect of a November
28, 2006 settlement agreement between DRJ and the City of
As a threshold matter, the City asserts that because the St. Paul City Council is the decision-making authority in this matter, summary disposition is not possible (or alternatively, desirable).[4] The claim is partially correct. It is true that an Administrative Law Judge does not possess the power to enter a final judgment in favor of a licensee, in matters that have been referred to the Office of Administrative Hearings under Section 310.05 of the St. Paul Code. As the City correctly notes, these proceedings will result in a recommendation to the City Council for resolving this appeal.[5]
With that said, however, the City’s further suggestion that summary disposition is never an appropriate result in these cases, is not well taken. In the view of the undersigned, nothing in Chapter 310 of the St. Paul City Code – nor in particular Section 310.05 of the St. Paul City Code – precludes an Administrative Law Judge from recommending summary disposition in favor of a licensee. Indeed, not only is the City’s suggestion at odds with prior cases,[6] the contention that the City could press a licensee that was otherwise entitled to judgment as a matter of law, to undertake a full-blown evidentiary hearing before being heard on its claims, raises troubling due process concerns.[7] The City Code does not require such a trail of tears in order for a licensee to be heard.
As detailed below, however, summary disposition is not appropriate in this case. A few points deserve special emphasis.
First, a plain reading of the text of Judge Dorn’s December 8, 2006 Order does not support the Licensee’s claim that later licensing actions by the City were precluded. Indeed, to the contrary, beyond suspending the litigation on the city’s claim that operation of Diva’s Overtime Lounge represented a nuisance, the settlement agreement and Order accounted for the possibility of future licensing action.[8]
Second, even if the plain language of the Order did not speak to this point, the Licensee bears a heavy burden in establishing that the government has foresworn future enforcement actions as part of its settlement agreement. Estoppel of the government in the exercise of its police powers is not favored[9] – and the Licensee has not established that such a result was intended here. The best reading of the November 2006 accord is that both parties set aside their then-current court battle and withdrew to see what the future would bring.
Third, application of the doctrine of merger and bar is inappropriate in this context because a nuisance claim under Minn. Stat. § 617.80, and a licensing action under Chapter 310 of the St. Paul City Code, have different elements,[10] legal remedies[11] and decision-makers.[12] Settlement of the nuisance claim did not estop the City’s from a later licensing action.[13]
For all of
these reasons, DRJ is not entitled to summary disposition. This matter will proceed to an evidentiary
hearing.
E. L. L.
[1] See, Affidavit of D. Johnson, Exhibits E and F.
[2] See, DRJ’s Memorandum of Law, at 5-6.
[3] See, LIEP’s Memorandum of Law, at 2-3.
[4] Id, at 2.
[5] See,
[6] See, Arenz v. City of Minneapolis, OAH Docket No. 5-3100-8530-2 (1994) (Recommended Order to Dismiss claims follows from the conclusion of the Administrative Law Judge that the claims were barred by collateral estoppel) (http://www.oah.state.mn.us/aljBase/31008530.rp.htm); In the Matter of the Teaching Licenses of Jon A. Falgren, OAH Docket No. 69-1302-8572-2 (1994) (Recommended Order for Summary Disposition follows from the conclusion of the Administrative Law Judge that the claims were barred by collateral estoppel) (http://www.oah.state.mn.us/aljBase/13028572.94.htm); compare also, Minn. R. 1400.550 (K) (2005) (“Consistent with law, the judge shall perform the following duties ... recommend a summary disposition of the case or any part thereof where there is no genuine issue as to any material fact or recommend dismissal where the case or any part thereof has become moot or for other reasons”).
[7] Compare
generally, Mathews v. Eldridge,
424 U.S. 319, 333 (1976) ("The fundamental requirement of due process is
the opportunity to be heard at a meaningful time and in a meaningful
manner"); Wheeler v. City of
[8] See, Affidavit of D. Johnson, Exhibit F.
[9] See,
e.g.,
[10] Compare,
[11] Compare,
[12] Compare,
[13] Compare,
e.g., Hauser v. Mealey, 263 N.W.2d 803, 806 (