15-6020-19438-3
STATE OF
OFFICE OF ADMINISTATIVE HEARINGS
FOR THE
|
In re the Licenses
held by Wittwer Fitness, Inc., d/b/a Anytime Fitness for the premises located
at |
FINDINGS OF FACT, |
This matter was heard by Administrative Law Judge Beverly Jones
Heydinger, on March 12, 2008, in Room 40A,
This report is a recommendation, not a final decision. The Saint Paul City Council will make a final
decision after a review of the record and may adopt, reject, or modify these
Findings of Fact, Conclusions, and Recommendation.[2] Pursuant to Saint Paul Legislative Code §
310.05 (c-1), the City Council shall not make a final decision until the
parties have had the opportunity to present oral or written arguments to the
City Council. Parties should contact Shari Moore, City Clerk, City of
1. Did Wittwer Fitness violate Saint Paul Legislative Code § 427.07 (12) and the corresponding license condition by operating a fitness club without having at least one employee or manager, trained and qualifed in first aid and CPR on the premises during its hours of operation?
2. If so, is the City’s proposed penalty of $500 reasonable?
The Administrative Law Judge recommends that the Saint Paul City Council affirm the determination that Wittwer Fitness violated Legislative Code § 427.07 (12), and the condition on its license by operating a health and sport club without an employee on the premises who was trained in first aid and CPR, and affirm the proposed penalty of $500.
Based on the record and
proceeding herein, the Administrative Law Judge makes the following:
1.
Wittwer Fitness Inc. holds License ID #
20060003890 to operate a health and sport club and a tanning facility at
2. Jason and Joseph Wittwer are brothers who own Wittwer Fitness.[3] In November, 2006, they applied for a license to operate a fitness and tanning facility doing business as Anytime Fitness.[4]
3. Saint Paul Legislative Code § 427.07(12), applicable to a health and sport club, states:
At least one (1) employee or manager, trained and qualified in first aide and CPR according to the standards established by rule by the department of safety and inspections shall be on duty at all times that the licensed premises are in operation or open to member or the public.
4. Prior to the time that the license was issued, DSI staff met with Joseph Wittwer to discuss the requirements that applied to a health club and requested additional information about the lay-out of the club’s space, the parking, and the heating and ventilation system. In addition, Mr. Wittwer was informed about the requirement to give notice to the neighbors about the license application.[5]
5.
In
early January, 2007, about the time that the health club was scheduled to open,
Jason Wittwer learned of DSI’s interpretation that an employee or manager must
be on the premises during all hours of operation.[6]
6.
On at
least two occasions in January 2007, Jason Wittwer met with Christine Rozek;
William Gunther,
7.
The
parties also discussed a variance from the “on duty” requirement. However, DSI did not grant a variance because
if no staff member were on the premises, Wittwer Fitness members would not have
immediate access to CPR.[8]
8. DSI issued a license to Wittwer Fitness that included a condition with the same requirement contained in §427.07(12) and a second condition for its tanning facility that stated: “Customer use of tanning facilities shall be restricted to those hours when at least one individual employed by the licensee is available on site.”[9] On January 9, 2007, Jason Wittwer returned the signed conditions to a DSI staff member with a cover memo that stated:
Here are the signed conditions that your department is requiring of me. Please understand that I agree to them under distress as I have no other choice and have to open my business at this time. I sincerely hope that some resolution can [be] made in the near future to accomodate (sic) our type of business and wish that these issues were brought to my attention at the beginning of the application process, rather the end…when it was too late to change course.[10]
9.
Jason
Wittwer informed Joseph Wittwer about the meetings with the city’s
representatives.[11] Wittwer Fitness closed its facility for a
short period of time in order to get its staff trained in first aid and CPR,
but re-opened after some of the owners and employees completed the
certification.[12]
10.
Although
Wittwer Fitness was aware of DSI’s position that a staff member must be present
in the health club during its hours of operation, it chose to interpret the
term “on duty” to mean available by telephone.
In so doing, Jason Wittwer and Joseph Wittwer compared the language
that, in their view, required tanning facility staff to be on the premises with
their view of the term “on duty” in the health club ordinance.[13]
11.
Wittwer
Fitness does not have an employee on the premises during all hours of operation. A staff member may be contacted by telephone
at any time. Two hand-lettered signs are
posted near the bathroom and the front door at the club that state “24 Hour
Manager On Duty Call 651-353-5977,” and one included the language “for
emergency questions or concerns.”[14] The telephone number belongs to Michelle
Wittwer’s cell phone, which she keeps with her at all times that she is on
duty. Ms. Wittwer lives about one mile
from the health club and can get to the club in less than five minutes. Occasionally she works at the club as a
personal trainer. She has been trained
in first aid and CPR. When she is not
available, an alternative number is posted for Joseph Wittwer or Jason Wittwer.[15]
12.
Although
Wittwer Fitness does not have an employee on the premises during all hours of operation,
it does have necklaces that customers are encouraged to wear when using the
exercise equipment, and panic buttons are located throughout the facility. The buttons are connected to “Pro Vision,” a
security company that will contact 911 for police assistance and also notify Wittwer
Fitness. Neither the necklaces nor the
buttons are directly connected to the 911 system.[16]
13.
Wittwer
Fitness also has security cameras. In
the event that a person attempts to enter the facility without using a required
security pass, the entry will be recorded on a computer system that is linked
to the cameras. The owners and manager
can check the computer from off-site to determine if a person has entered
without the required pass and can check the recorded images from the security
cameras to determine who entered and how the entry occurred. The cameras are not continuously monitored
when persons are using the facility, but the computer program is checked
regularly for unauthorized entry. The
cameras are not linked to Pro Vision, and the security company cannot monitor
the cameras. There is a coded key pad
outside the building entrance to allow police and fire to gain access to the
building.[17]
14.
On one
occasion, a panic button was pushed and Pro Vision called the police. Ms. Wittwer arrived at the facility after the
police arrived.[18] Jason Wittwer stated that the police arrive
before the staff “every time” that a call is made.[19]
15.
The
Anytime Fitness business model provides low-cost access to health facilities
24-hours a day. The Wittwers are
concerned that they cannot operate the model successfully if the facility must
be staffed at all times. Moreover, they
believe that the staffing requirement is out-dated because of the new security
features and because the benefits of allowing low-cost access to health clubs
at any time of day outweigh the small health risks of operating without a staff
member present.[20]
16.
Robert
Kessler, the Director of DSI, asked Ms. Rozek to check Wittwer Fitness for
compliance with the code and its license condition. In response, Saint Paul Police Sergeant Craig
Gromek and Sergeant Simmons went to the health club in the evening of November
8, 2007. The officers entered the facility
by following a club member through the front door and found that there were no
Wittwer employees or managers on the premises.[21]
17.
Based
on the police report, Ms. Rozek recommended adverse action against Wittwer
Fitness.[22]
18.
The
Wittwers have checked with hotels
that have on-site fitness centers and do not believe that staff members are
present when guests are using those facilities.[23]
19.
The
Anytime Fitness franchisor is working with regulators in many states to educate
them about the benefits of its business model, including greater access and
affordability. Anytime Fitness stresses
the security at its facilities, and the required training for staff and
members, including training about the benefit of wearing a necklace with a
panic button while exercising. There are
101 Anytime Fitness franchises in
20.
The
City first regulated health clubs in 1989.
Since the City added the requirement for first aid and CPR training to
the legislative code provision in approximately 1992, the City has consistently
interpreted the term “on duty” in the code provision to mean that an employee
or manager with the required training must be on the premises during all hours
of operation. The purpose of the safety
requirement is to assure that a trained person is on hand to render emergency
assistance in the event that a customer is injured or suffers a heart attack
while using the facility. Although there
is a contact number posted at Wittwer Fitness, and customers may push a button
in an emergency, neither is sufficient to provide immediate medical assistance.[25]
21.
William
Gunther, the City’s Environmental Health Director, explained the importance of
immediate administration of CPR to keep oxygen circulating to the brain, and
the damage from loss of oxygen, including some brain damage in four minutes,
permanent brain damage in seven minutes, and the poor chance of survival after
twelve minutes without oxygen. If a
patron were to call the number of the staff attendant rather than 911, the call
would delay the emergency response. A
person off-site would be unable to render the required assistance, and there
would be no reason to require that person to have first aid or CPR training.[26]
22.
In
addition, the City is concerned that unauthorized persons may enter the fitness
club, which could pose a safety risk to its customers. An on-site employee would be available to
immediately check the identity of such a person and take the appropriate steps
to remove the individual.[27]
23.
Exercise
rooms in hotels and condominiums do not require a health/sport club license
because hotels and condominiums are not in the business of operating a health
or sport club.[28]
24.
The
City Council has authority to impose a fine upon any licensee as an adverse
action, in an amount that is reasonable and appropriate. To that end, it has established presumptive
penalties for violations. The City
Council may deviate from the presumptive fine if there are substantial and
compelling reasons to do so.[29]
25.
On December 6, 2007, the DSI sent a Notice of
Violation to Wittwer Fitness alleging that Wittwer Fitness had violated St.
Paul Legislative Code § 427.07 (12) and Condition One of its license. The notice stated that DSI would recommend a
$500 fine to the City Council for the violation. [30]
26.
Wittwer Fitness requested a hearing to challenge
the violation.[31] The City issued a Notice of Administrative
Hearing on February 15, 2008, scheduling the hearing for March 12, 2008.[32]
27.
There is no substantial or compelling reason to
deviate from the presumptive penalty of $500.00.
28.
Any
Finding of Fact more properly termed as a Conclusion is hereby adopted as a
Conclusion.
1. The Administrative Law
Judge and the Saint Paul City Council have jurisdiction in this case.[33]
2. The Applicant received
timely and proper notice of the hearing, and the City has complied with all
relevant substantive and procedural requirements of statute and rule.[34]
3. The City Council has
authority to deny, suspend, or revoke a license and to impose penalties for the
violation of applicable statutes and rules.[35] The presumptive penalty for a first violation
is a $500 fine.[36]
4. DSI has the burden of
proving that the Licensee violated the applicable provisions of state law and
city ordinance by a preponderance of the evidence.
5. Saint Paul Legislative
Code § 427.07 (12) states:
At least one (1) employee or manager,
trained and qualified in first aid and CPR according to standards established
by rule by the department of safety and inspections shall be on duty at all
times that the licensed premises are in operation or open to members or the
public. Such standards shall be in
conformity with standards and guidelines established by the American Red Cross
with respect to water safety instructors or by the American Heart Association
for similar purposes.
6.
DSI has
reasonably interpreted the term “on duty” to mean that the employee or manager
must be on the premises in order to give effect to the requirement that such an
employee or manager must be trained in first aid and CPR. In light of the language of the provision as
a whole, this is a reasonable interpretation that gives meaning to each part of
the provision and is consistent with the obvious intent of the requirement.
7.
DSI has
proved by a preponderance of the evidence that Wittwer Fitness failed to have
an employee or manager trained and qualified in first aid and CPR on duty while
the licensed establishment was in operation and open to members, in violation
of Saint Paul Legislative Code § 427.07 (12), and its license condition.
8.
DSI’s
proposed fine of $500 is reasonable and consistent with the City’s penalty
matrix.
9.
The
City Council may impose costs of a contested case hearing on a party if its
position was “frivolous, arbitrary or capricious, made in bad faith, made for
the purpose of delay or harassment,” and for other reasons that would not be
applicable to the alleged violations in this matter.[37] Wittwer Fitness’s appeal of the violation of
its license was taken in good faith and was not frivolous, arbitrary or
capricious, or made for the purpose of delay or harassment.
Based on the foregoing Conclusions, the Administrative Law Judge makes
the following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED: that the City of
Dated: April 17, 2008 s/Beverly Jones Heydinger
_________________________
BEVERLY
JONES HEYDINGER
Administrative
Law Judge
Digitally Recorded:
A-bjh-03122008
MEMORANDUM
The Saint Paul Legislative Code and the condition placed on Wittwer Fitness’ license both required that an employee trained in first aid and CPR shall be “on duty” at all times that the facility was in operation or open to its members.[38] DSI has interpreted “on duty” in this context to mean that the employee must be on the premises. Wittwer Fitness does not deny that it operated its facility when no employee was on the premises who was trained in first aid and CPR. Wittwer Fitness claims that it complies with the requirement by posting the name and telephone number of a trained employee who is on duty and may be contacted at all times.
DSI’s interpretation is consistent with the plain meaning of the ordinance. In order to give meaning to the full text, a person must be on the premises to perform first aid or CPR as needed. Persons who are ill or injured may not be able to assist themselves, and the time that it would take to summon a staff member who is away from the health club or to push a button that triggers a request for a police officer defeats the purpose of having a trained person available. A call to 911 will bring help with equal speed, regardless of whether a staff person trained in first aid or CPR were called first. If Wittwer Fitness’s argument were logical, the ordinance would require posted notice to call 911 or push one of the panic buttons in an emergency. Although a police officer may be trained in first aid and CPR, this adds a step to obtaining the necessary medical care. Thus, the meaning Wittwer Fitness gives to the ordinance is unreasonable and fails to accomplish the purpose for which it was enacted. It also fails to give effect to the language of the ordinance as a whole by rendering the first aid and CPR training requirement meaningless. Wittwer Fitness’s claim that CPR training includes instructing another person to perform CPR is not persuasive since there may not be a person on hand to take direction, and no way for the person giving direction to observe whether the directions were followed. Ordinances should be interpreted to give full effect to all the provisions, and not to interpret them in a manner that would lead to an unreasonable result or defeat the purpose for which they were enacted.[39]
Moreover, DSI’s interpretation of the ordinance is entitled to some deference because it is reasonable, consistent with the plain language of the ordinance, and is an interpretation of long-standing.[40] DSI’s witness, Mr. Gunther, testified that since the first aid and CPR requirements were added to the ordinance, DSI has consistently required that an employee be on the premises.
Wittwer Fitness also challenges the applicable ordinance because exercise rooms in hotels and condominiums are not subject to the same license requirements. William Gunther explained that hotels and condominiums are not in the fitness business and offer exercise as an amenity to their customers or owners. A health club license is required only for persons in the business of operating a health/sport club.[41] In addition, members of a condominium association are using equipment that they own, and the City does not regulate private, personal use of exercise equipment. Governments may regulate part of an activity or address part of a problem without regulating the entire field. It is not required to “strike at all the evils at once.”[42]
Wittwer Fitness compares the use of the term “on duty” in the ordinance regulating health clubs with the more specific “on duty on the premises” language in the ordinance governing “game rooms.” Although the provision applicable to game rooms is more specific, it is also included in a provision that would not otherwise imply such specificity, unlike the requirement for health clubs that the employee on duty be certified for first aid and CPR. The City is not required to employ identical language throughout its ordinances, nor are the health club and game room provisions so likely to be read together that the different choice of words would cause confusion.
Wittwer Fitness also argues that the ordinance is out of step with updates in technology and fails to take into account that the benefits of being available at a low cost and at hours that serve many schedules outweigh the risks of using the exercise facility without a staff member present, or even on-duty. These arguments are more appropriately brought to the City Council for its consideration. Occasionally, in applying a law or rule, factual situations that were not considered during the legislative process come to light that may yield a harsh or undesirable result in a particular case. However, this does not make the law invalid so long as the law as applied is rationally related to the result that the enactment was intended to achieve. The ordinance would be invalid as applied only if its application lacked a rational relationship to the objective it was enacted to address.[43] In this case, it is clear that the application of the ordinance to Wittwer Fitness is consistent with its intended purpose and would in fact benefit the health club’s patrons. Wittwer Fitness claims otherwise, because it contends that it cannot charge its low rates if it must have staff on the premises during all hours of operation. Also, it believes that the enforcement of the ordinance is unfair because it was unaware of DSI’s interpretation at the time that it leased space, remodeled and opened. Although it may be more costly for Wittwer Fitness to comply with the ordinance, the reasonableness must be viewed from the end sought to be achieved and not in light of the ordinance’s application to a particular party.[44] Wittwer Fitness was aware of DSI’s interpretation from at least January 2007, up to the time of the inspection in November 2007, which led to the fine.
Appropriateness of the
Penalty
DSI proposed a fine of $500, the presumptive penalty for a first violation.[45] Wittwer Fitness was on notice of the requirement and DSI’s interpretation of it. It is doubtful that a warning would have the desired deterrent effect. Based on the facts presented, the presumptive penalty is reasonable.
DSI’s request for costs
DSI may request costs if the Licensee’s appeal was frivolous, arbitrary or capricious. No such award of costs is justified in this instance. Wittwer Fitness sincerely believes that the ordinance should not be applied to it, and those arguments, although unpersuasive, were not specious or advanced solely to delay or harass enforcement.
B.J.H.
[1] Formerly Office of License, Inspections and Environmental Protection (LIEP).
[2] Saint Paul Legislative Code §§ 310.05 (c-1).
[3] Ex. W1-2
[4] Testimony (Test.) of Christine Rozek; Test. of Joseph Wittwer.
[5] Test. of C. Rozek; Test. of Joseph Wittwer.
[6] Test. of Jason Wittwer.
[7] Test. of Jason Wittwer; Test. of C. Rozek; Test. of W. Gunther.
[8] Test. of W. Gunther.
[9] This requirement is consistent with Minn. Stat. ch. 325H (Regulation of Tanning Facilities), and Saint Paul Legislative Code Chapter 380 (Tanning Facilities).
[10] Ex. W2.
[11] Test. of Joseph Wittwer.
[12] Test. of Jason Wittwer.
[13] Test. of Joseph Wittwer; Test. of Jason Wittwer.
[14] Exs. W7 and W8.
[15] Test. of Michelle Wittwer.
[16] Test. of Joseph Wittwer.
[17] Test. of Joseph Wittwer.
[18] Test. of M. Wittwer.
[19] Test. of Jason Wittwer.
[20] Test. of Jason Wittwer.
[21] Test. of C. Rozek; Ex. W3-2.
[22] Test. of C. Rozek.
[23] Test. of Jason Wittwer; Test. of Joseph Wittwer.
[24] Test. of Mark Daly, National Media Director, Anytime Fitness.
[25] Test. of C. Rozek; Test. of W. Gunther.
[26] Test. of W. Gunther.
[27] Test. of C. Rozek.
[28] Test. of W. Gunther; See Saint Paul Legislative Code § 427.01.
[29] Saint Paul Legislative Code § 310.05(l) and (m).
[30] Ex. W4.
[31] Ex. W5.
[32] Ex. W6.
[33]
Saint Paul Legislative Code §§ 310.05, 310.06;
[34]
See
[35]
[36] Saint Paul Legislative Code § 310.05(m).
[37] Saint Paul Legislative Code § 310.05(k).
[38] Saint Paul Legislative Code § 427.07 (12); Ex. H3.
[39] See e.g. Minn. Stat. § 645.17 (1 and 2) (principles of statutory construction).
[40] Arvig Tel.Co. v. Northwestern Bell Tel. Co.,
270 N.W.2d 111,114 (
[41] Compare Saint Paul Legislative Code § 427.01 (definition of health/sport club) with § 407.01 (definition of hotel).
[42]
[43] Mammenga v. Dep’t of Human Services, 442
N.W.2d 786, 789 (Minn. 1989), citing Wickard
v. Filbion, 317
[44] Broen Memorial Home v. Dep’t of Human
Services, 364 N.W.2d 436, 441 (
[45] Saint Paul Legislative Code § 310.05(m).