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OAH Docket No. 8-6020-17788-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE
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In
the Matter of All Licenses Held by DRJ, Inc., d/b/a Diva’s Overtime Lounge |
FINDINGS OF FACT, CONCLUSIONS AND
RECOMMENDATION |
This
matter came on for hearing before Administrative Law Judge Eric L. Lipman on
March 21, 22 and 23 and April 5, 2007,
at City Hall in
Rachel
Gunderson, Assistant City Attorney, 400 City Hall,
STATEMENT
OF ISSUES
Should action be taken against
the licenses held by DRJ, Inc., d/b/a Diva’s Overtime Lounge, because the
Licensee has maintained or permitted a condition that unreasonably annoys,
injures or endangers the community?
As detailed
below, the Administrative Law Judge concludes that a severe licensing action, but
not license revocation, is warranted on this record.
Based
upon all the proceedings herein, the Administrative Law Judge makes the
following:
FINDINGS OF FACT
General Background
1.
The Licensee, DRJ, Inc., d/b/a Diva’s
Overtime Lounge (“Diva’s”), holds an on-sale liquor license from the City of
2.
Diva’s Overtime Lounge is located at
3.
Diva’s – and its principal, Debra R. Johnson – succeeded
to the management of the Rice Street location in June of 2005, through a
management agreement with the prior owner and liquor licensee, Mobandi.[3]
4.
At or around the same time, Ms. Johnson’s paramour,
Mr. Fred Maclus, purchased the building and the land at
5.
On September 27, 2005, Ms. Johnson accepted, on
behalf of Diva’s, a set of six licensing conditions imposed by LIEP on issuance
of a liquor license to DRJ (License 20050001998). Among the conditions that were agreed to,
were:
[Condition
4] The licensee must provide working
video surveillance camera and recorders on the premise to provide documentation
of activities in the interior and exterior of the establishment. This equipment must be in operation during
all business hours. Tapes must be
maintained for thirty days and must be immediately available to the Saint Paul
Police Department and the Officer of License, Inspections and Environmental
Protection, upon request.
[Condition
5] The licensee must maintain a list of
customers banned from the establishment for assaultive, disorderly or
disruptive behavior. This list will
contain the name and description of the banned person, as well as the date that
he/she was banned. The list must be
immediately available to the Saint Paul Police Department and the Officer of
License, Inspections and Environmental Protection, upon request.[6]
6. Following a series of disturbances inside or adjacent to Diva’s in the ten months that followed, Ms. Johnson accepted imposition of ten additional licensing conditions. License Conditions 7 through 16, were:
[Condition 7] Security personnel shall be assigned to each entrance
starting at 9PM every day, and shall remain until all patrons have left the
licensed premises. Security personnel
shall “wand” (using a metal detector) each patron and check all handbags and
packages carried by patrons. Security
personnel shall verify the age of patrons by checking state or federally issued
identification cards (no picture ID, no entrance). Customers re-entering the establishment shall
be subject to the same security measures as customers entering the
establishment for the first time.
[Condition 8] The license holder shall retain a licensed and bonded
security company to supervise security personnel. The license holder shall perform a criminal
background check of all security personnel. License holder and the security company shall
work with the District Council (District 6 Community Council) to establish what
criteria will be applied prior to hiring any security personnel. The criteria will be no less than that
outlined in St. Paul Legislative Code Chapter 376.16(e).
[Condition 9] The security personnel shall not fraternize with the
patrons.
[Condition 10] The license holder shall not allow new patrons to
enter the establishment after 12:00 midnight on Thursday, Friday, and Saturday
nights. This condition shall remain in
effect through September 5, 2006. Beginning
September 5, 2006, the license holder shall not allow new patrons to enter the
establishment after 1:00 AM on Thursday, Friday, and Saturday nights.
[Condition 11] All smokers shall be monitored by the security
personnel to keep patrons from congregating in front of the establishment. Security personnel shall also insure that
there is no excessive noise outside of the establishment. The security personnel shall keep smokers on
the
[Condition 12] Employees (including the license holder) shall not
drink alcoholic beverages while on duty.
[Condition 13] The license holder, security staff, and employees of
the establishment shall cooperate with the police by calling for assistance
when there is a threat of violence or other criminal behavior.
[Condition 14] All doors and windows must be closed from 8:00 PM
until closing to avoid exposing the neighborhood to excessive noise.
[Condition 15] The license holder shall make sure that all refuse
and trash from the establishment is removed from the licensed premises and the
surrounding sidewalks and alley by noon on a daily basis.
[Condition 16] The DJ shall make an announcement 30 minutes before
closing asking all patrons to respect the community by leaving in an orderly
and quiet manner.[7]
Facts Relating to
the City’s Unreasonable Operation Claims
7.
On November 20, 2005, Saint Paul Police Officers
Susan Hartnett and Christopher Hoyt observed a street fight while their squad
car was on routine patrol. The fighting
involved approximately 30 persons, in smaller clusters, at the intersection of
Rice and Geranium Streets. As the squad
car approached the scene, and the officers gave instructions for the combatants
to disperse, another group of persons emerged from Diva’s bar and joined the
fighting.[8] Responding to Officers Hartnett and Hoyt’s
radio call for assistance, several additional squad cars arrived at the scene
and aided the team in dispersing this crowd.[9]
8.
A later police report involving the November 20
disturbance includes the statement of Tara Parshall. Ms. Parshall informed investigating officers
that the fight began inside Diva’s when a group of four males clashed with a
friend of Ms. Parshall.[10]
9.
On January 29, 2006, a similar incident
occurred. As detailed in the Police
Report on the incident, two Caucasian patrons of the bar – Bryan J. Pettiford
and Randal G. Taylor – took umbrage at the fact that a female friend of their’s
was talking to two African-American patrons of the bar – Angelo D. Pernell and
Edward G. Robinson. While Pernell and
Robinson were conciliatory when first approached by Pettiford and Taylor, Pettiford
and Taylor provoked the other two men into fighting. Pettiford and Taylor were later arrested for
disorderly conduct.[11]
10.
Two weeks later, on February 11, 2006, Saint
Paul Police responded to a report that gunshots had been fired outside of
Diva’s bar. Officer James McKnight, Jr.,
who was nearby, and the first to arrive at the scene, was not able to identify
any particular person as having been involved in the shooting. Further, while a series of shell casings were
found on Geranium Street, at a distance of approximately of 10 feet from a side
door of Diva’s bar, police interviews could not determine whether or not a
patron of Diva’s was involved in the firing of the weapon.[12]
11.
On March 6, 2006, while on an evening patrol of
12.
Moments earlier, Stoehr and Maclus had insisted
that Green leave Diva’s, as Green was bothering other patrons. Green responded to this directive by attempting
to punch the two other men. Together, Stoehr
and Maclus then pressed Green out the exit door. Green continued to be aggressive toward the
men outside of the bar.[13]
13.
As detailed in Officer Petron’s later report, Green
matched the description of a man for whom St. Paul Police were otherwise
searching that evening. Earlier on March
6, the St. Paul Police Department received two reports regarding a man,
similarly dressed, who was engaging in threatening behavior. Because of a charge of disorderly conduct,
and an earlier and active warrant for trespassing, Officer Petron took Green
into custody.[14]
14.
On March 18, 2006, Joshua J. Thomas, a tourist from
15.
On the next evening, March 19, 2006, Antonio M.
Adams was asked to leave Diva’s bar by its management. In the view of Diva’s staff, Mr. Adams and
his companions were being too loud and boisterous. When
16.
On April 28, 2006, Sergeant Craig Gromek, of the
Saint Paul Police Department’s Vice Squad, undertook an undercover alcohol
compliance investigation. From a parked
car approximately 80 feet away, Sergeant Gromek observed a crowd of Diva’s
patrons conversing – many times loudly and profanely – outside of the bar’s front
door on
17.
On June 17, 2006, a still-unnamed patron of Diva’s
bar became loud and threatening to another customer. When fisticuffs began between these customers,
Diva’s security officers separated the combatants, ejecting them both from the
bar, although through separate doorways.
Once outside, the unruly patron that had been ejected through the
18.
Soon after, Saint Paul Police Officer Eric Skog,
while otherwise on routine patrol, approached the scene in his squad car. At this time, the number of those fighting in
the street ballooned to approximately 12 people.[20] While Officer Skog (and a later-arriving
Sergeant Thomas Radke) worked to disperse the crowd that had assembled, an
unidentified male threw a cylindrical outdoor ashtray into the air hitting Diva’s
patron Roy W. Fulson in the head. As
Fulson collapsed and lay on the ground bleeding, a cry from the crowd went up to
the effect that “the police beat him down, they did it” – a false claim that
made the scene increasingly hostile and dangerous for the police.[21] With the intervention of several other police
squads arriving on the scene, however, Officers Radke and Skog were able to
restore order.[22]
19.
On September
12, 2006, Saint Paul Police were called twice to disturbance calls at
Diva’s. On both occasions that evening,
police were called to respond to fighting among three individuals: Matthew J. Burns, Francisco Contreas and
Joseph R. Lewis. While officers
disbursed the trio from the street during the first visit to Diva’s, with the
instruction that none of the three should return to the bar, that instruction
went unheeded. Approximately 30 minutes
later, the combatants were again fighting outside of Diva’s, and police were
summoned a second time. As the squad
cars returned to the scene, the suspects fled, evading capture.[23]
Facts Relating to
the License Condition Noncompliance Claims
20.
Because one of the persons involved in the fighting
outside of Diva’s on September 12 (described most immediately above), was a
person who had substantial gang ties, Saint Paul Police sought to obtain a copy
of the video tape from Diva’s surveillance cameras. To that end, on September 13, 2006, the day
following the fighting, Licensing Inspector Kristina Schweinler traveled to
Diva’s and made a request for copies of the relevant video tapes. The bartender then on-duty, William Schally,
was not able to furnish her with the requested recordings. Following a series of requests made by
telephone to Debra Johnson and her counsel, a video cassette was furnished to
city officials on September 20, 2007.[24]
21.
No clear images were perceptible on this tape and it
appeared to police investigators that the cassette was blank.[25]
22.
Diva’s management subsequently furnished a second
video surveillance tape to city officials, this time with discernible images,
on October 4, 2006.[26] Notwithstanding the proffer, city officials still
doubt whether the correct recording was furnished, as the date line at the top
of the images was not September 12, 2006.[27]
23.
Early in the morning on November 11, 2006, as
Debra Johnson and her team were exiting Diva’s after closing time, a Saint Paul
Police squad car approached the building.
The officers had been called to the scene by a report that shots had
been fired in the area and inquired if Johnson or her employees knew anything
about those events. A brief exchange was
had about the existence of outdoor surveillance cameras at Diva’s although no
request for copies of that evening’s recordings was made at this time.[28]
24.
As the police investigation of the shooting
intensified, Police Sergeants Richard Munoz and William Gray telephoned Debra
Johnson at home – Sergeant Munoz at approximately 3:15 a.m. and Sergeant Gray
approximately 45 minutes later. While
police requested Ms. Johnson to return to Diva’s and produce copies of the
surveillance recordings, Ms. Johnson noted that she would need assistance from
her technician in order to provide the requested copies. She instead pledged to contact the video technician
and furnish the requested tapes later that morning.[29]
25.
Because Saint Paul Police officers were not able to
obtain copies of the sought-after surveillance tapes by mid-morning, and had
difficulty in reaching either Debra Johnson or her technician by cellular
telephone, an angry set of exchanges between police and Johnson followed when
Johnson arrived at Diva’s at approximately 11:00 a.m. During the confrontations, officers undertook
a check of Johnson’s driver’s license. Upon
learning that Johnson’s driver’s license had expired, police officers took her
into custody.[30]
26.
Shortly after, when Johnson’s counsel, Jerome Rudawski,
Esq., arrived at Diva’s, he observed a team of uniformed officers pressing
against the locked door of the office in which the surveillance video equipment
was housed. Rudowski inquired of
Sergeant Munoz as to whether the officers had a warrant authorizing their entry
into this office.[31] In an apparent acknowledgement that they had
no such warrant, officers withdrew to complete a warrant application.
27.
At 2:33 p.m. that day, the Honorable Judith M.
Tilsen of the District Court approved a search warrant authorizing the seizure
of both the surveillance recordings and the underlying recording system.[32] Police completed the seizure of tapes and
recording equipment at 2:45 p.m. on November 11, 2006.[33]
Facts Relating to
the Code Noncompliance Claims
The Smoker’s Patio:
28.
Following the enactment of an ordinance which
banned smoking in the interior of bars within the city limits of
29.
A key part of this plan was the fact that outdoor
areas, such as patios, were specifically excluded from the reach of the new
ordinance.[35]
30. Further, because noise from patrons congregating near the Rice Street and Geranium Street exits of Diva’s had been a source of complaints in the past, Johnson commissioned the construction of a patio at the south-west corner of Diva’s building – at a point that was farthest from Geranium Street.[36]
31. Before beginning construction, however, neither Johnson nor anyone else from DRJ, obtained the required building permit.[37] More problematic still, the structure of the patio consumed at least one parking space that Diva’s had earlier pledged, as part of its licensure, to make available for customer parking.[38]
32. Following the receipt of a report that construction of a patio was underway at Diva’s, and later confirming that such a patio was in place, LIEP sent DRJ an Enforcement Notice.[39] The Notice, dated June 26, 2006, directed DRJ to complete one of two actions before July 3, 2006: DRJ could either furnish a complete site plan for the patio and proof that two replacement parking spaces had been obtained, or, in the alternative, remove the patio.[40]
33.
While Debra Johnson and DRJ did make some efforts to
qualify the patio as a conforming structure, those efforts were not completed
by July 3, 2006, or a later extended deadline of July 28, 2006.[41] The patio structure was removed on or about August
1, 2006.
Upgrades to the Kitchen
Equipment:
34.
While DRJ’s Restaurant C license permits it to
offer pre-packaged foods – such as potato chips – for sale to its customers,[42]
Debra Johnson harbored grander plans for Diva’s. Because of her long professional history in
the hospitality and catering industries, Johnson hoped to augment her Restaurant
C license and obtain authorizations that would permit her to prepare and sell a
broader menu of food.[43]
35.
As part of her upgrade plan, Johnson undertook the
removal and replacement of an antiquated, unsanitary and sub-standard kitchen
exhaust system that was over an existing stove.[44]
36.
The upgrades that Johnson received from her contractors
included an exhaust hood that was not welded in place and which was connected
to a grade of round pipe that was insufficient to meet the requirements of the
City’s mechanical code.[45] Similarly, the venting of the exhaust system
was inadequate to comply with the current requirements of the
37.
Haider’s July 28, 2006 letter further directed that
sufficient repair or removal of the exhaust system needed to occur before August
31, 2006.[48] This performance date was later extended to
October 18, 2006.[49]
38.
While DRJ contacted at least two vendors as to its
need to modify the kitchen facilities, neither the upgrade nor the removal of
the non-conforming equipment was completed by the extended deadline of October
18, 2006.[50]
Temporary Signs:
39.
Diva’s is located in a TN2 – or traditional
neighborhood – zoning district of Saint Paul.[51] Within such a district there are strict
limitations as to the display of temporary business signs on commercial
properties. Among the limitations are:
a.
a temporary sign permit must be obtained before the
sign is displayed;
b.
the total area of such signs is limited to 32 square
feet; and,
c.
display of the permitted signs may not occur more
often than 3 nonconsecutive 30-day periods in a single year.[52]
40.
In the autumn of 2006, LIEP received a complaint
about the display of temporary business signs at Diva’s – a complaint which
prompted both a review of LIEP’s licensing records and a visit from LIEP
Inspector Yaya Diatta.[53] LIEP’s records did not reveal DRJ as holding
a temporary sign permit at the time.[54] Further, an inspection of Diva’s facility
revealed that 5 temporary signs, measuring a total of 126 square feet,
were on display.[55]
41.
Following the inspection, Mr. Diatta sent Diva’s
an Enforcement Notice directing the removal of the non-conforming signs within
10 days.[56]
42.
On September 27, 2006, Diva’s obtained a permit
which authorized the display of 32 square feet of temporary signage.[57]
43.
Inspection visits on October 3rd and
4th, however, revealed that the banners posted outside of Diva’s
exceeded 32 square feet. Diva’s was not
in compliance with the limits of its earlier-issued permit until October 6,
2006.[58]
Overdue Remittances:
44.
Following the receipt of the Administrative Law
Judge’s report, relating to a separate claim of after-hours display of alcohol,[59] on
September 27, 2006, the Saint Paul City Council adopted a resolution
sanctioning DRJ.[60] As part of its adverse licensing action, the
Council revoked DRJ’s 2:00 a.m. closing license and imposed a fine and costs
totaling $3,300.[61] Additionally, the Council directed that the
$3,300 assessment was due and payable within 30 days of its adoption of the
resolution – October 27, 2006.[62]
45.
When the $3,300 assessment was not received by LIEP
or the City by November 7, 2006, a Notice of Intent to Suspend DRJ’s Licenses
was issued. The Notice advised that the
City would proceed with suspension unless the entire past-due sum was received
by November 20, 2006.[63]
46.
On November 20, 2006, a credit card payment in
the amount of $3,300 was made in favor of the City on behalf of DRJ.[64]
Procedural Matters
47.
On
December 13, 2006, following a review of reports from various City Departments,
the City issued a Notice of Intent to Revoke DRJ’s Licenses. The Notice informed DRJ of the bases for the
proposed action and the opportunity to request a hearing before an
Administrative Law Judge.[65]
48.
With
the receipt of a timely request for a Hearing, the City Attorney’s office
issued a Notice setting an initial hearing date for March 21, 2007.[66]
49.
On
April 4, 2007, the Administrative Law Judge entered an Interim Order precluding
the City Attorney from adducing evidence to the effect that the shootings
that occurred on July 14, 2006 or November 11, 2006, at or near Diva’s,
established that the Licensee permitted conditions to exist that were contrary
to Saint Paul City Code 310.06 (b) (8).
As detailed in this Order, because the events on those evenings were then
the subject of active criminal prosecutions, and key fact witnesses in the Saint
Paul Police Department are privileged against disclosing details of those
events prior to the completion of the criminal trials, “these matters [could not] be the subject of either discovery or
examination by the Licensee.”[67] In
order to balance the “various and competing interests,” the Administrative Law
Judge permitted testimony as to “the events of July 14, 2006 or November 11,
2006, in the same manner as to which other historical events in the hearing
record – such as meetings, inspections or police calls – are referenced,” but
precluded these events from forming a separate basis for the City’s adverse licensing
action.[68] To the extent that those events may provide a
basis for an adverse licensing action, but were not litigated in this
proceeding, the Licensee was advised that they may be the subject of a future proceeding
on another day.
Based upon
the above Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
OF LAW
1.
The
Administrative Law Judge and the St. Paul City Council have jurisdiction to
hear this matter pursuant to Minn. Stat. § 340A.415 and St. Paul Legislative
Code § 310.05.
2.
The
City of
3.
As
the party proposing that a certain action be taken, the City has the burden of
proving facts at issue by a preponderance of the evidence.[69]
4.
The City did not establish by a preponderance of the
evidence that, by way of misconduct, the Licensee operated, maintained or
permitted conditions that endangered the community.
5.
DRJ
was not in compliance with its obligations to make recordings of its video
surveillance camera “immediately
available to the Saint Paul Police Department and the Office of License,
Inspections and Environmental Protection, upon request.”
6.
DRJ
was not in compliance with its obligation to apply for a building permit before
undertaking construction of an adjacent patio structure or with its duty to
maintain a minimum level of parking following the installation of the patio.[70]
7.
DRJ
was not in compliance with its obligation to apply for a building permit before
undertaking renovation of its kitchen exhaust system or with its duty to have
that system inspected following completion of the renovations. Additionally, DRJ was not in compliance with
its obligation to remove the non-conforming equipment by October 18, 2006.
8.
As
demonstrated by the events in late September and early October of 2006, DRJ was
not in compliance with its obligation to apply for a temporary sign permit
before displaying advertising banners on its building. Additionally, DRJ was not in compliance with
its obligation to limit those temporary displays to a total area of 32 square
feet.
9.
DRJ
did not remit in a timely fashion the $3,300 in fines and costs assessed by the
City Council of Saint Paul on September 27, 2006.
10.
The Memorandum that follows below explains the
reasons for these Conclusions. To the
extent that the Memorandum includes matters that are more appropriately
described as Conclusions, the Administrative Law Judge incorporates those items
into these Conclusions.
11.
Further, the Administrative Law Judge adopts as
Conclusions any Findings of Fact that are more appropriately described as
Conclusions.
Based upon
the above Conclusions of Law, the Administrative Law Judge makes the following:
It is hereby recommended that the that the St. Paul City Council impose a weighty administrative sanction against the licenses of DRJ, Inc., d/b/a Diva’s Overtime Lounge – but not revoke these licenses.
Dated: June 28, 2007.
|
__s/Eric L.
Lipman____________ |
|
ERIC L. LIPMAN |
|
Administrative Law Judge |
Reported: Taped,
15 tapes
No
transcript prepared
NOTICE
The St. Paul
City Council is requested to serve notice of its final decision upon each party
and the Administrative Law Judge by first-class mail.
MEMORANDUM
The case
pivots on the question of accountability.
The binders of exhibits, the testimony from a chain of witnesses, and
the detailed arguments from counsel are all focused on a key question: What misconduct, occurring at or near Diva’s
during the past 18 months, is attributable to DRJ?
The City’s Unreasonable
Operation Claims
Pointing to a stack of police
reports, the City argues that because there have been so many public safety calls
to this one establishment, DRJ’s operations must be defective. Only a defect in the management, continues
this argument, could result in so many serious events at one locale.
While there
is some support for the view that DRJ is “responsible” for anything that occurs
on its premises – obliging the licensee to be the guarantor of the good
behavior of anyone who walks into or near its establishment[71] – this is not the best reading
of the law. The better and more complete
view is that DRJ may be held to account in the licensing process for acts that it
undertakes, or acquiesces to, which undermine public order.
To be sure, some
of Diva’s patrons have been frighteningly quick to violence. Yet the record as a whole does not establish
that DRJ or its employees prompted this violence, encouraged it or were slow to
confront it when it erupted. Indeed, to
the contrary, the record contains considerable detail as to the efforts made by
DRJ staff to contain and eliminate misbehavior; even at times when the personal
risks of moving against violent patrons were substantial.
Likewise significant is Sergeant
Gromek’s testimony – who posed as a Diva patron during undercover liquor
control investigations, on a number of occasions and at different times of the
day. He testified that he did observe
any problems with over service of alcohol or other inducements by the Licensee
toward anti-social behavior.[72]
Similarly, many of the police officers who responded to disturbance
calls at Diva’s did not link DRJ’s management practices with their being called
to the scene.[73]
Thus, while the City points to a very troubling array of police calls,
the causal connections between the Licensee’s actions, and the violent misconduct
of its patrons, have never been made clear.
The importance of this factual
link can hardly be overstated. While “municipal
licensing authorities have broad discretion to decide the manner in which
liquor licenses are issued, regulated and revoked,”[74] in this case, the authority is
not without its limits. The Council’s
chosen words in Section 310.06 – namely that the Licensee has “operated,”
“maintains or permits” harmful conditions – all suggest that regulatory sanctions
will follow from misconduct which the Licensee has participated in, or the
least, supported.[75]
As to the violence occurring at Diva’s, the record does not establish
such support or participation by the Licensee.
Accordingly, even if
Second, the case law seems to
confirm the conclusion that revocation is a proper result only whether the
Licensee is genuinely culpable for an intolerable condition. In the case of C.L. Hinze, Inc. d/b/a Chuck’s Bar v. City of St. Paul (cited by
the City in its post-hearing submission), the owner-licensee’s role in “a
significant act of violence” against an intoxicated and vulnerable patron, his
attempts “to interfere with the licensing proceeding and dissuade the patron
from testifying,” and an earlier history of obstructing police responses to an
emergency call, all combine to suggest that license revocation is reserved for licensees
who engage in more affirmative misconduct than is established by this record.[76]
Third, and likewise important, this
case points up the fact that Licensees like DRJ sit atop a razor’s edge of
competing legal obligations. On the one
hand, establishments like Diva’s are “public accommodations,” as to which
licensees may not deny access on the basis of suspect classifications.[77] Our law guarantees that regardless of the color,
creed, gender, sexual orientation or national origin of would-be patrons, when
Diva’s opens its doors, they are open equally wide to all members of the
public. Yet, because the City was also holding
Diva’s accountable for the “clientele it attracted,” DRJ instituted a set of
controls that were aimed at bad behavior but did not, arbitrarily, exclude
whole classes of customers. Among the
changes that DRJ made were: prohibitions on the wearing of dew rags (a type of
tight-fitting skull cap with a legionnaire flap, that is popular among gang
members); prohibitions on references to gang activity or the wearing of
gang-related colors; changes to music format; changes in the age of admission;
and enhanced security procedures.[78] In combination, these measures appear to have
been effective and suggest the route to obtaining still better results for the
North End of Saint Paul.
Last, the
proposed license revocation raises important questions as to the overall proportionality
of the sanction. As the Council is well
aware, in
Minnesota
Courts have apparently considered the breadth of this sanction only once – and
in that case, incompletely. The licensee
in the case of Chuck’s Bar, cited
above, attacked the Saint Paul ordinance which forbids later licensure as a “regulatory
taking;” a matter that the Minnesota Court of Appeals declined to reach because
it was not presented to the District Court below.[80]
Even without direct guidance
from the state courts as to the viability of a permanent bar to re-licensure,
the concerns expressed by the courts as to license forfeitures in general,
should give the Council pause.[81] In the view of the Administrative Law Judge,
applying a potent set of other restrictions and regulatory controls,[82]
short of revocation, would yield a better and sturdier result.
The City’s
Remaining Claims
As detailed
in the Findings of Fact and Conclusions above, DRJ’s failures to make video
surveillance tapes available in a timely fashion to police; its unauthorized
and unlawful construction of a patio; its unauthorized and potentially
hazardous upgrades to kitchen equipment; its posting of nonconforming temporary
signs; and its failure to pay remittances in a timely manner, make the
imposition of a licensing sanction appropriate on this record.
E.L.L.
[1] See, Exhibits 1, 9 and 12.
[2] See, e.g., Ex. 43.
[3] See, Ex. 1 and Testimony of Fred Maclus; compare generally, Saint Paul Legislative Code § 409.11 (h) (http://www.ci.stpaul.mn.us/code/lc409.html#sec409.11).
[4] Id; see also, Exs. 35, 36.
[5] See, Test. of F. Maclus; see also, Exs. 12, 13.
[6] See, Ex. 12.
[7] See, Exs. 6, 7 and 11; see also, Testimony of Robert Kessler.
[8] See, Testimony of Susan Hartnett and Christopher Hoyt; see also, Ex. 32.
[9]
[10] See, Ex. 32 at 6.
[11] See, Ex. 33; Testimony of Erik M. Johnson.
[12] See, Ex. 34; Testimony of James J. McKnight, Jr.
[13] See, Ex. 35; Testimony of Steven J. Petron; see also, Test. of F. Maclus.
[14] See, Ex. 35.
[15] See, Ex. 36; Testimony of Diana L. Olsem; see also, Test. of F. Maclus.
[16] See, Ex. 37; Testimony of S. Hartnett; Testimony of D.
[17] See, Ex. 37 at 4.
[18] See, Ex. 8; Testimony of Craig Gromek.
[19] See, Test. of F. Maclus.
[20] See, Ex. 38; Testimony of Eric Skog.
[21] Id; Testimony of Pedro Girhalva, Jr.
[22] See, Ex. 38 at 7; Testimony of Eric Skog.
[23] See, Ex. 27; Testimony of David Stokes; Testimony of Michael McGinn.
[24] See, Stipulation of April 5, 2007; Exs. 28 and 46; Testimony of Kristina Schweinler; Testimony of Christine Rozek.
[25] See, Stipulation of April 5, 2007; Test. of K. Schweinler; Test. of C. Rozek.
[26]
[27] See, Test. of K. Schweinler; Test. of C. Rozek.
[28] See, Stipulation of April 5, 2007; Test. of D. Johnson.
[29] See, Ex. 31; Stipulation of April 5, 2007; Test. of D. Johnson.
[30] See, Ex. 31; Testimony of Jerome Rudawski.
[31] See, Test. of J. Rudawski; see also, Ex. 31.
[32] See, Ex. 31; Stipulation of April 5, 2007.
[33] See, Stipulation of April 5, 2007.
[34] See, Test. of D. Johnson.
[35] See, Saint Paul Legislative Code § 238.02
(2) (“Licensed liquor establishment means an establishment that
has an on-sale intoxicating liquor license … but does not include outdoor
areas”) and § 238.02 (3) (“Smoking is prohibited in
restaurants, pool halls, bowling centers, rental halls, bingo halls and
licensed liquor establishments”) (emphasis added).
[36] See, Exs. 41 and 43; Test. of D. Johnson.
[37] See, Testimony of Robert Kessler.
[38] See, Exs. 15, 16, 17, 18, 41 and 43; Test. of D. Johnson.
[39] See, Exs. 15, 16, 17, 18.
[40] See, Ex. 18; compare also, Licensee’s Exhibit 8.
[41] See, Ex. 6; Licensee’s Exhibit 8; Test. of D. Johnson; Testimony of Jeffrey Johnson.
[42] See, Testimony of Robert Gunther.
[43] See, Test. of D. Johnson.
[44]
[45] See, Ex. 48 and 49; Testimony of Ronald Haider.
[46] See, Ex. 48 and 50; Test. of R. Haider.
[47] See, Exs. 1 and 21.
[48] See, Ex. 21
[49] See, Ex. 22.
[50] See, Test. of D. Johnson.
[51] See, Ex. 54.
[52] See, Saint Paul Legislative Code § 64.203 (a) (“Permits”) and § 64.503 (b) (4) (Temporary signs in traditional neighborhoods); Ex. 54 and Testimony of Yaya Diatta.
[53] See, Exs. 1 and 54 and Test. of Y. Diatta.
[54]
[55] See, Ex. 54 and Test. of Y. Diatta.
[56]
[57] See, Ex. 1.
[58] Test. of Y. Diatta.
[59] See, In the Matter of All Licenses Held by DRJ, Inc., d/b/a Diva’s Overtime Lounge, OAH Docket No. 11-6020-17359-6 (2006) (http://www.oah.state.mn.us/aljBase/602017359.rt.htm).
[60] See, Exs. 23, 24 and 25.
[61] See, Ex. 23.
[62]
[63] See, Ex. 25.
[64] See, Ex. 26; Test. of J. Johnson.
[65] See, Ex. 39.
[66] See, Ex. 40.
[67] See, Interim Order, OAH Docket No. 8-6020-17788-2 (April 4, 2007).
[68] See, id.
[69] See,
[70] See,
[71] See, Saint Paul Legislative Code § 409.08
(5) (“Every licensee is hereby made responsible for the conduct of his place of
business and required to maintain order and sobriety in such place of
business”).
[72] See, Test. of C. Gromek.
[73] See, e.g., Test. of S. Petron; Test. of M. McGinn; Test. of E. Skog; Test. of E. Johnson.
[74] See, e.g., Sabes v. City of
[75] Compare, Saint Paul Legislative Code §
310.06 (b) (8) ("Such adverse action may be
based on one or more of the following reasons … [t]he licensed business,
or the way in which such business is operated, maintains or permits conditions
that unreasonably annoy, injure or endanger the safety, health, morals, comfort
or repose of any considerable number of members of the public").
[76] Compare, C.L. Hinze, Inc. d/b/a Chuck’s Bar v. City of
[77] Compare, Minn. Stat. § 363A.03 (34)
(2006) (“’Place of public accommodation’ means a business, accommodation,
refreshment, entertainment, recreation, or transportation facility of any kind,
whether licensed or not, whose goods, services, facilities, privileges,
advantages or accommodations are extended, offered, sold, or otherwise made
available to the public”) with Minn. Stat. § 363A.11 (a)(1) (2006) (“It
is an unfair discriminatory practice… to deny any person the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, and
accommodations of a place of public accommodation because of race, color,
creed, religion, disability, national origin, marital status, sexual
orientation, or sex...”).
[78] See, Testimony of Thomas Radke; Test. of
J. Johnson.
[79] See,
[80] Compare, C.L. Hinze, Inc. d/b/a Chuck’s Bar v. City of
[81] Compare, generally, In re Revocation of
Family Child Care License of Burke, 666 N.W.2d 724, 728 (
[82] See generally, Saint Paul Legislative
Code § 409.10.