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OAH 61-6020-20350-3 |
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE CITY OF
|
In
the Matter of Adverse Action Against All Licenses Held By Richard A. DeFoe
Enterprises, Inc., d/b/a Club |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for hearing before Administrative Law
Judge M.
Rachel Tierney, Assistant St. Paul City Attorney,
STATEMENT OF THE ISSUES
1.
Did the City prove by a preponderance of the evidence that, on
February 14, 2009, Club Cancun violated condition number one of its
license by failing to employ directional bass, sound absorption measures, and
other noise controls to minimize the noise from inside the establishment from
disturbing the neighborhood?
No, the ALJ
finds that the City did not meet its burden of proof on this issue.
2.
Did the City prove by a preponderance of the evidence that on
February 14, 2009, Club Cancun violated the City’s noise ordinance, St.
Paul Legislative Code § 293.02?
No, the ALJ finds that the City did not meet its burden of proof on
this issue.
Based on the
evidence in the hearing record, the Administrative Law Judge makes the
following:
FINDINGS OF FACT
Factual
Background
1.
Mr. Richard A. DeFoe is the owner of Richard A. DeFoe Enterprises,
Inc., which is the current owner of and does business as “Club Cancun” at
2.
The premises at
3.
The entrance utilized when Club Cancun is open is the back, or east,
entrance. That entrance opens out into a
parking lot. Adjacent to the parking lot
is an alley. Directly across the alley
from Club Cancun to the east is McCarron’s Village, a large apartment complex
that has scores of residents.[4]
4.
The nearest residence to Club Cancun is a second floor apartment to the
north that shares a common wall with Club Cancun. Across the alley from Club Cancun and running
along the north side of Wheelock Parkway east of Rice Street are a group of
townhouses located approximately 50 feet from the back of Club Cancun, then
continuing east are a number of single family residences.[5]
5.
Sometime in 2006 or 2007, Ms. Patricia Carlson and her family moved
into the single-family residence at
6.
There is a lot of car and truck noise at the intersection where the
SuperAmerica is located. Noise from automobile traffic getting gas at the
SuperAmerica station is bothersome to Ms. Carlson.[7]
7.
Directly across
8.
Across
9.
Ms. Carlson and others had complained to the St. Paul Police Department
many times about loud music coming from Club Cancun during the period in 2007
to early 2008 when the interim owner operated the establishment. Some complaints were confirmed by the police,
some were determined by the police to be unfounded.[10]
10.
On April 30, 2008, after a period of negotiations between Mr. DeFoe and
the City that involved legal counsel for both parties, Mr. DeFoe agreed to
three license conditions that would be put in place before he re-opened Club
Cancun. Ms. Carlson was also involved in
giving her input into the licensing conditions process. The relevant two conditions, numbers one and
three state as follows:[11]
1. Licensee will employ
directional bass, sound absorption measures, and other noise controls to
minimize the noise from inside the establishment from disturbing the
neighborhood. This condition will be reviewed on or after June 30, 2008, and is
subject to change if the measures employed by the licensee are not effective.
. . .
3. Prior to reopening of
the establishment, the licensee will meet with DSI to review the license
conditions.[12]
11.
In accordance with condition number three, Mr. DeFoe met with DSI personnel
on December 23, 2008.[13] During the meeting Mr. DeFoe advised DSI that
he had hired Robert Thao to promote his events to appeal to an older Asian
clientele. DSI advised Mr. DeFoe that he
must agree to eight additional conditions before he could reopen Club Cancun.[14] In addition to the conditions, at the meeting
DSI recommended to Mr. DeFoe that he talk to a noise specialist.[15]
12.
Also at the December 23, 2008, meeting, DSI suggested that Mr. DeFoe
meet with the District 6 Planning Council prior to reopening.[16]
13.
District 6 Planning Council (Planning Council) is essentially a large
“block club” covering the area of the City South of Larpenteur Avenue, east of
Dale Street, west of Highway 35E, and north of the Burlington-Northern Railroad
tracks that run adjacent to Pierce-Butler Route and Pennsylvania Avenue. The Planning Council has a formal
relationship with the City.[17]
14.
The Planning Council has a Board of Directors and a Land Use Task Force
(LUTF). Ms. Carlson was a member of both
the Board and LUTF prior to 2009. The
Board meets on the first Tuesday of each month and the LUTF meets on the fourth
Tuesday of each month.[18]
Implementation of Directional Bass and Sound Absorption Measures
15.
In order to comply with condition number one, prior to reopening Club
Cancun Mr. DeFoe took the following steps, sound absorption measures and noise
controls:
a.
Hired the sound mitigation expert Don Rice (who “does sound” for
Lifetime Fitness and churches and nightclubs all around the Twin Cities area)
and followed all of his recommendations; and
b.
Removed the four large, freestanding bass speakers that had been in the
four corners of the room that encompasses the dance floor area; and
c.
Replaced the four large speakers with two smaller speakers that are
approximately one-half the size of the removed speakers; and
d.
Built the two small bass speakers into the stage, facing east towards
the back of Club Cancun; and
e.
Filled in the entire stage behind the two bass speakers with sand; and
f.
Moved the two hanging upper and mid-range speakers from the west
corners of the establishment approximately 20 feet east and lower, closer to
the dance floor with reduction of the power to those speakers; and
g.
Operated all sound at lower power levels than the previous owner; and
h.
Allowed no bands or musicians to utilize drums when performing; and
i.
Had Gillund Construction rebuild the South wall of Club Cancun with
soundproof channels; and
j.
Had Gillund Construction rebuild the west wall of Club Cancun with
soundproof channels.[19]
16.
Mr. DeFoe called Kerry Antrim, Executive Director and Community
Organizer for the Planning Council, and was invited to attend the Board meeting
on January 5, 2009.[20] Mr. DeFoe attended the Planning Council Board
meeting on the 5th, announced his intention to reopen Club Cancun
soon and invited all in attendance to visit Club Cancun.[21] Neither Ms. Antrim nor Ms. Carlson has been to
Club Cancun since its reopening.[22]
17.
Mr. DeFoe invited DSI licensing personnel to come visit Club Cancun. As of the date of the hearing, no one from DSI
has visited Club Cancun for any purpose.[23]
18.
At the Planning Council Board meeting on January 5, 2009, Mr. DeFoe and
Ms. Carlson exchanged cell phone numbers and agreed to keep in close touch
regarding any noise issues with Club Cancun.[24] Mr. DeFoe is sincere about addressing any
noise issues concerning Club Cancun and being a good neighbor to the
surrounding neighborhood.[25]
19.
On or about January 16 or 17, 2009, Mr. DeFoe reopened Club Cancun.[26]
20.
City police officers routinely conduct walk-throughs of Club Cancun and
did so on: January 17, 18, 24, and 25, 2009; February 1, 6, 7, 8, and 22, 2009;
March 1, 6, and 8, 2009; April 4, and 17, 2009. Officer Yang conducted some or all of the
walk-throughs and was instructed by Sergeant Campbell to keep a close eye on
Club Cancun.[27]
21.
On January 26, 2009, Ms. Antrim had e-mail communications with Jami
Olson, the manager of McCarron’s Village Apartments, and asked her whether or
not the noise from Club Cancun had improved. She said it had not.[28]
22.
At some time before February 14, 2009, Ms. Antrim had a conversation
with a Debra Staydohar about whether the noise from Club Cancun had improved. She said it had not. She did not communicate this complaint to Mr.
DeFoe or anyone at Club Cancun.[29]
23.
The only complaint about Club Cancun that Ms. Antrim received regarding
February 14, 2009, (other than from Ms. Carlson), was from Ms. Olson, who
stated that there were so many cars trying to park in the parking lot that it
looked like a parade, and that bottles had been dumped at different times. Ms. Olson did not complaint about any noise
from Club Cancun.[30]
24.
In the City, from the hours of 7 a.m. - 10 p.m. any sound level cannot
exceed 65 decibels at 100 feet from the sound's source, which is comparable to
sound in a business office. From the
hours of 10 p.m. - 7 a.m. the sound level cannot exceed 55 decibels at 100
feet, which is comparable to conversational speech.[31]
Carlson Complaints Regarding Bass Attributed to Club
25.
Before and during sound checks at Club Cancun, Mr. DeFoe would call or
text Ms. Carlson. Mr. DeFoe seemed
genuinely concerned about sound mitigation at Club Cancun.[32]
26.
Ms. Carlson called or texted Mr. DeFoe many times between the reopening
of Club Cancun and January 24, 2009, to complain about bass.[33] She told him not to listen just outside in the
Club Cancun parking lot because the bass was louder at her house than it was
immediately outside the club.[34]
27.
Mr. DeFoe was unable to verify Ms. Carlson’s complaints. He also sat in a City police cruiser in front
of the Carlson residence, with a police officer unsuccessfully trying to get
any sound to register on a decibel meter.[35]
28.
After Ms. Carlson’s repeated complaints to Mr. DeFoe, Club Cancun
removed the two smaller bass speakers that had been installed into the stage
and replaced them with even smaller speakers.[36]
29.
In addition to the sound mitigation measures outlined above, in
response to Ms. Carlson’s complaints, Mr. DeFoe:
a.
Filled all basement and the south first floor windows with soundproof
insulation; and
b.
Terminated ingress and egress access to Club Cancun from the front (west)
door so that no noise would escape to the west and covered that door with sound
insulation.[37]
30.
After looking for and plugging every possible gap and hole that could
be located at Club Cancun, Mr. DeFoe asked the sound expert Don Rice if there
was anything more that could be done to further mitigate the music at Club
Cancun. Mr. Rice told him nothing
more could be done to fix the problem.[38]
31.
All of the sound mitigation measures taken at Club Cancun have resulted
in expenditures in excess of $10,000.00.[39]
32.
After all sound mitigation measures had been taken, the Asian musicians
accused Mr. DeFoe of being racist and that he did not like their music.[40]
33.
On February 6, 2009, Mr. DeFoe signed his agreement to abide by the
eight new conditions and his attorney e-mailed the document to DSI and the City
Attorney.[41]
34.
Mr. DeFoe has asked every residential neighbor that has come to Club
Cancun if they were could hear or were ever bothered by any music or noise
coming from Club Cancun. They all stated
that they have heard nothing, including the neighbor to the north that shares a
common wall, residents of McCarron's Village, and the residents of the new
townhouses immediately Southeast across the alley from the club.[42]
35.
Although Mr. DeFoe has been extremely responsive to her, Ms. Carlson
believes the bass music at Club Cancun is exactly the same after the reopening
as it was during the tenure of the prior owner.[43]
36.
DSI has had no telephone conversations, written correspondence or any
other communication with Mr. DeFoe or Club Cancun since it reopened in January
2009.[44]
37.
Since reopening, Mr. DeFoe has directed the Club Cancun Security
Manager, Mr. Kurt Just, to walk around the neighborhood three times every night
to check whether any excessive noise or music can be heard from Club Cancun.[45] The only loud music and heavy bass he has
heard was from cars at the SuperAmerica station with loud bass stereo systems
and from loud parties every weekend at the apartment complex directly across
the street from the Carlson residence that is located on the southeast corner
of
38.
Every night that Club Cancun is open there is a uniformed City police
officer stationed at the SuperAmerica. Mr.
DeFoe and Mr. Just have asked her many times whether or not she could hear any
loud music coming from Club Cancun. She
stated that she could not hear anything coming from Club Cancun.[47]
39.
On Saturday night, January 24, 2009, Ms. Carlson texted Mr. DeFoe about
loud music.[48] Mr. DeFoe dispatched Mr. Kurt Just, Security
Manager for Club Cancun, to walk down to the Carlson residence to determine if
music from the club could be heard at her residence.[49]
40.
Mr. Just walked down to the Carlson residence and stood in her front
yard and listened for loud music. The
only music that could be heard at that time was from a loud party in progress
at the apartment complex directly across the street from the Carlson residence
on
41.
A few days prior to February 14, 2009, police officers had responded to
noise complaints from Ms. Carlson about Club Cancun. Those complaints were unfounded.[51]
42.
At 11:39 p.m. on February 13, 2009, after Ms. Carlson’s complaint about
noise coming from Club Cancun, the police came to her home and the officer was
unable to hear any noise.[52] The police officer logged the complaint as
unfounded.[53]
43.
Approximately an hour and a half later, at 1:00 a.m. on February 14,
2009, Officer Yang investigated a noise complaint from Ms. Carlson regarding
Club Cancun. The complaint was
unfounded.[54]
44.
At 8:38 p.m. on February 14, 2009, Officer Yang investigated a noise
complaint from Ms. Carlson regarding Club Cancun. The complaint was unfounded.[55]
45.
At 11:46 p.m. on February 14, 2009, Officer Yang was dispatched to
investigate a noise complaint from Ms. Carlson regarding Club Cancun. Upon arriving in the east parking lot of Club
Cancun, near the rear door, Officer Yang could hear loud music and bass coming
from inside Club Cancun. The police
radio dispatcher told Officer Yang to immediately go talk to Ms. Carlson before
investigating any further.[56]
46.
Officer Yang went to the Carlson residence and spoke to Ms. Carlson. She told him that she was unable to sleep
because she could hear bass music inside her house and out in her driveway. She invited him into the home and he went in.
Ms. Carlson shut all of the windows and doors and asked Officer Yang if he
could hear the music. Officer Yang told
her that he could.[57]
47.
While in the house, Officer Yang was unable to determine from which
direction music was coming. It was as
likely to have been coming from the Lamplighter as it was to have been coming
from Club Cancun.[58]
48.
Officer Yang did not go to the Lamplighter, the SuperAmerica, or any
other location to rule them out as the alleged source of the bass complained of
by Ms. Carlson.[59] Ms. Carlson has not walked to the Lamplighter
to determine if any bass music comes from that establishment.[60]
49.
Ms. Carlson asked Officer Yang to return to Club Cancun and speak with
Mr. DeFoe. Officer Yang returned to Club
Cancun and advised Mr. DeFoe about Ms. Carlson’s complaint. Mr. DeFoe stated that he was aware of the situation
with Ms. Carlson and would address the problem.[61]
50.
Officer Yang, in a conversation with Mr. Just, lowered and shook his
head and stated, “She’s nuts. We’re sick
of going over there and I’ll talk to my Sergeant about not writing up a
report.”[62]
51.
Officer Yang was ordered to write up a report by Sergeant Campbell.[63]
52.
In a later conversation between Officer Yang and Mr. Just, Officer Yang
told him that the police were tired of dealing with Ms. Carlson and going over
to her house.[64]
53.
In March 2009, Ms. Antrim received a noise complaint about Club Cancun
from Raymond Davis,
Procedural Findings
54.
In determining that the music from Club Cancun was too loud on February 14,
2009, DSI considered the fact that the complaint occurred after 10:00 p.m.,
that the music was alleged to be relatively constant, that Club Cancun is
approximately 500 feet from the Carlson residence, and that there are other
residential properties near Club Cancun.[66]
55.
In making its determination of a noise violation by Club Cancun, DSI
did not give consideration to the fact that Club Cancun and its immediate
surrounding area is a high traffic commercial area with many automobiles
containing extraordinarily loud bass in their stereo systems. It did not consider the number of people
actually affected by the music from Club Cancun. DSI did not test or consider the sound peak
pressure level of the alleged noise, in comparison to the level of ambient noise.[67]
56.
DSI rarely takes adverse action based on a single complaint. In this case, DSI chose to take action based
on the complaint of Ms. Carlson. The
only noise complaint about Club Cancun is from Ms. Carlson.[68]
57.
Christine Rozek, the Deputy Director of DSI, routinely reviews police
reports for licensing implications. Ms.
Rozek reviewed the report submitted by Officer Yang concerning his visit to the
Carlson residence on February 14, 2009.[69]
58.
After reviewing the police report and consulting with the City Attorney,
Ms. Rozek recommended a fine of $1,000.00.[70]
59.
On February 24, 2008, the City of St. Paul sent a Notice of Violation
letter to Licensee, alleging a violation of license condition one and a
violation of St. Paul Legislative Code § 293.02.[71]
60.
On March 24, 2009, Licensee, through its attorney, requested a hearing
in connection with the alleged February 14, 200, violations.[72]
61.
On April 1, 2009, the City issued a Notice of Administrative Hearing to
the Licensee to be held on May 7, 2009, for the alleged licensing violations.[73]
Based on these
Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1.
This matter is properly before the City and the ALJ pursuant to St.
Paul Legislative Code §§ 310.05, 310.06 and 324.11.
2.
The City complied with all requirements of regulation and gave proper
and timely notice to the Licensee.
3.
The City has not proven by a preponderance of the evidence that Club
Cancun violated condition number one of its liquor license.
4.
The relevant portions of Chapter 293 of the St. Paul Legislative Code
provide as follows:
Sec. 293.01. Definitions.
As used in this chapter, the
following terms shall have the meanings ascribed to them in this section.
(1) PCA definitions adopted.
Pursuant to Minnesota Statutes, Section 471.62, the definitions contained in
the Minnesota Pollution Control Agency Air Quality Division Noise Pollution
Control Rules, Section 7030.0020, are hereby adopted by reference.
. . .
(4) Department. The city department of safety and inspections.
. . .
(6) Sound level (or noise
level). The A-weighted sound pressure level, expressed in dBA, obtained by the
use of a sound level meter having characteristics as specified in the ANSI
Standard S1.4-1983.
Sec. 293.02. Noise as a public nuisance.
(a)
Generally.
(1) It shall be unlawful for
any person to make, continue, permit or cause to be made, continued or
permitted within the city, any loud, disturbing or excessive noise which would
be likely to cause significant discomfort or annoyance to a reasonable person
of ordinary sensitivities in the area.
(2) The characteristics and
conditions which shall be considered in determining whether a noise is loud,
disturbing or excessive for the purposes of paragraph (a) of this section,
shall include, without limitation, the following:
a. The time of day or night
when the noise occurs.
b. The duration of the
noise.
c. The proximity of the
noise to a sleeping facility and/or a residential area.
d. The land use, nature and
zoning of the area from which the noise emanates and the area where it is
perceived.
e. The number of people and
their activities that are affected or are likely to be affected by the noise.
f. The sound peak pressure
level of the noise, in comparison to the level of ambient noise.
. . .
(d) Amplified sound. It
shall be a violation of this section to play, operate or permit the playing,
use or operation of any radio, tape player, disc player, loud speaker or other
electronic device used for the amplification of sound, unless otherwise
permitted by law, located inside or outside, the sound of which carries to
points of habitation or adjacent properties, and is audible above the level of
conversational speech at a distance of fifty (50) feet or more from the point
of origin of the amplified sound.
(f) Penalties.
(1) A violation of any section of this chapter is a misdemeanor, and a sentence of not more than ninety (90) days in jail, or a fine of not more than one thousand dollars ($1,000.00), or both, may be imposed.
a. Each day a violation of
this ordinance is committed or permitted to continue shall constitute a
separate offense and may be punished separately.
. . .
Sec. 293.07. Noise source limitations.
(a) No person shall operate
or cause to be operated on any property or properties any source of noise or
sound in such manner as to create a sound level outdoors which exceeds the
limits set forth for the receiving land use classification in Table 1 below
when measured at the point of human activity which is nearest the noise source.
Table 1. Sound Level
Restrictions for
TABLE INSET:
|
Noise Receptor |
Land Use Classification |
Time |
Sound Level Limit (One hour L10 dBA) |
|
__________ |
|||
|
Class I |
I-1, I-2 and I-3 |
At all times |
80 dBA |
|
Class II |
R-1 through R-4, |
7:00 a.m. to 10:00 p.m. |
65 dBA |
|
|
RM-1 through |
10:00 p.m. to 7:00 a.m. |
55 dBA |
|
Class III |
B-1 through B-5, |
At all times |
70 DBA |
. . .
Sec. 293.08. Administration.
(a) Responsibility of
enforcement. The primary responsibility of enforcing the provisions of sections
293.02 through 293.08 shall be with the police department. The primary
responsibility of enforcing the provisions of section 293.09 shall be with the department.
(b)
Noise impact statements. Any city department or agency may require a
noise impact statement in association with any change in zoning classification,
in planning of a structure, or in any operation, process, installation or
alteration which may be considered as a potential noise source, or in reviewing
a request for a variance under this chapter.
(c) Performances of department. The department shall also perform
the following:
(1) Prepare for city council
approval and keep on file guidelines establishing the test procedures and
instrumentation to be utilized.
(2) Conduct inspections as
required to determine whether violations exist.
(3) Review all variance
requests and make recommendations to the city council. There is hereby
established within the department a dedicated activity to which all receipts
and disbursements for noise level variance requests will be recorded.
(4) Issue orders for
abatement of noises which constitute a violation.
(5) Conduct such research, monitoring and other studies related to
sound as are necessary or useful in enforcing this chapter.
5.
In making its determination of a noise violation by Club Cancun, DSI
did not give consideration to the land use, nature and zoning of the immediate
area around Club Cancun. It did not
consider the number of people actually affected by the music from Club Cancun. DSI did not test or consider the sound peak
pressure level of the alleged noise, in comparison to the level of ambient
noise.
6.
In making its determination of a noise violation by Club Cancun, DSI
did not prove by a preponderance of the evidence that, on February 13 or 14,
2009, Club Cancun made, continued, permitted or caused to be made, continued or
permitted within the city, any loud, disturbing or excessive noise which would
be likely to cause significant discomfort or annoyance to a reasonable person
of ordinary sensitivities in the area.
7.
The City has not proven by a preponderance of the evidence that Club
Cancun violated any portion of Chapter 293 of the St. Paul Legislative Code.
8.
The ALJ adopts as Conclusions any Findings that are more appropriately
described as Conclusions, and as Findings any Conclusions that are more
appropriately described as Findings.
Based upon these Conclusions, and for the reasons
explained in the accompanying Memorandum, the Administrative Law Judge makes
the following:
RECOMMENDATION
Based upon these Conclusions, the Administrative Law
Judge respectfully recommends that the St. Paul City Council:
1) DISMISS
the allegation that the Licensee violated condition number one of the
Licensee’s licenses; and
2) DISMISS
the allegation that the Licensee violated Chapter 293 of the St. Paul
Legislative Code.
Dated: June
22, 2009
s/M.
|
M. Administrative Law Judge |
Reported: Digitally Recorded
NOTICE
This report is a recommendation, not a final
decision. The St. Paul City Council will
make the final decision after reviewing the record and may adopt, reject or
modify the Findings of Fact, Conclusions and Recommendation contained
herein. Pursuant to Section 310.05 of
the St. Paul Legislative Code, the City Council’s final decision shall not be
made until this Report has been made available to the parties to the proceeding
and the Licensee has been provided an opportunity to present oral or written
arguments alleging error on the part of the Administrative Law Judge in the
application of the law or the interpretation of the facts and an opportunity to
present argument relating to any recommended adverse action. The Licensee and any interested parties
should contact Shari Moore, Saint Paul City Clerk, 290 City Hall,
MEMORANDUM
Condition
Number One of Licensee’s Licenses
There
is no reliable evidence in the record to provide a basis to conclude that Club
Cancun violated condition number one of its liquor license. Condition number one provides specifically:
Licensee will employ
directional bass, sound absorption measures, and other noise controls to
minimize the noise from inside the establishment from disturbing the
neighborhood. This condition will be reviewed on or after June 30, 2008, and is
subject to change if the measures employed by the licensee are not effective.[74]
The Administrative Law Judge
notes that this condition, by its terms, does not require those measures and
sound controls to eliminate all noise or be completely successful. It requires these efforts to “minimize the
noise from inside the establishment from disturbing the neighborhood.” The weight of the evidence suggests that the
“neighborhood” has not been disturbed by noise from Club Cancun. Further noted is the fact that the City, prior
to the hearing, had no idea what steps, if any, the Licensee has taken to
comply with this condition. Finally, no
review has been done by the City to determine whether or not the measures taken
by the Licensee have been effective. The
evidence in the record suggests that those measures have been effective in
minimizing the bass and music from inside Club Cancun.
The reliable evidence in the
record of this case establishes by clear and convincing evidence that the
Licensee took extensive, expensive measures to: implement directional bass;
implement sound absorption measures throughout the establishment, including the
rebuilding of the South and West interior walls, closing off and insulating the
West door that faces Rice Street; covering virtually all of the establishment’s
windows with soundproofing insulation; not allow any band or musician to
utilize drums; and implement significantly lower amplification of the music. The last item was done to the extent that the
Asian musicians performing at Club Cancun accused Mr. DeFoe of being a racist. Finally, after considering all of the measures
taken by the Licensee, the sound expert concluded that there is nothing more
that the Licensee can do to further minimize the sound level of the music at
Club Cancun unless there is none.
Allegations of
Excessive Bass Emanating from Club
The
police department and Department of Safety and Inspections failed to follow the
minimum requirements of section 293.02 (a)(2) of the St. Paul Legislative Code
containing the factors that are required to be considered in determining
whether or not a noise violation has been established. Neither the police department nor DSI utilized
the provisions of sections 293.01 and 293.07, which provisions contain
objective, scientific procedures to determine whether or not a noise source is
excessive. The City did not introduce
any evidence to establish that music emanating from Club Cancun was above 55
decibels, the level of conversational speech, beyond fifty feet from Club
Cancun pursuant to section 293.02 (d) of the City noise regulation.
DSI
relied entirely on the subjective terms of section 293.02 (a)(1) to establish a
noise ordinance violation:
It shall be unlawful for any person to make, continue, permit or cause to be made, continued or permitted within the city, any loud, disturbing or excessive noise which would be likely to cause significant discomfort or annoyance to a reasonable person of ordinary sensitivities in the area.
The evidence in this case establishes that DSI
relied entirely on the complaint of a single individual. In addition, there is little persuasive or
reliable evidence to indicate that other potential sources of the offending
bass noise were ruled out.
All of the sound mitigation
measures employed by Club Cancun directed all music to the East, directly
towards the alley and the adjacent apartments, away from
Officer
Yang testified that he could hear music coming from Club Cancun when he arrived
at the east door to the establishment. However,
there is no evidence in the record to establish whether or not the driver’s
window or door to his police vehicle were open or shut. There is no evidence in the record to
establish whether or not the door to Club Cancun was closed or was opened when
Officer Yang was present in the parking lot. There is no reliable evidence in the record to
establish whether or not the music Officer Yang heard could be heard above
normal conversation. It is reasonable to
assume that some music will be heard at the entrance to any establishment that
provides music. The fact that some music
can be heard immediately outside of the entrance to Club Cancun is insufficient
to establish either that it is disturbing the neighborhood or can be heard
above normal conversation.
Officer
Yang’s testimony was equivocal. In his
testimony he was able to remember his conversations with Ms. Carlson on
February 14, 2009, yet could not “recall” his later conversations with Mr. Just
and Mr. DeFoe on the same date. He could
not recall whether or not he was the police officer who responded to the
earlier, unfounded complaints by Ms. Carlson. Furthermore, he did not deny the statements
attributed to him by Mr. Just and Mr. DeFoe – statements that tend to
contradict the testimony he gave at the hearing. Finally, although the music allegedly heard was
as likely to have been coming from the SuperAmerica or the Lamplighter as Club
Cancun, Officer Yang did not go to the Lamplighter to rule it out as a source.
On balance, the testimony of
Mr. DeFoe and Mr. Just is more credible and reliable than the testimony of
Officer Yang. Viewed in the light of all
of the other evidence in the record of this matter, it is more likely than not
that Officer Yang was being candid and truthful in his statements to Mr. Just,
and his true view is that Ms. Carlson’s latest noise complaint was
unfounded, as were her previous complaints. The only reason he wrote up a report was
because he was ordered to do so by his superior officer.
In addition, it would be
reasonably expected that, if excessive noise was emanating from Club Cancun,
there would be some verified complaints from neighbors other than Ms. Carlson,
particularly from someone living close to the establishment. There were none at all. The fact that the earlier complaint from her
on the night of February 14, 2009, and one from the previous night, were
investigated by the police and determined to be unfounded, persuasively
suggests that the bass she hears either did not emanate from Club Cancun or was
of such a modest level that a reasonable person of ordinary sensibilities would
not be disturbed.
For
the foregoing reasons, the ALJ finds that there is insufficient evidence to
conclude that Club Cancun violated Chapter 293 of the St. Paul Legislative
Code.
Conclusion
Because
the City failed to prove by a preponderance of the evidence that Licensee
violated either condition number one of its licenses or the Chapter 293 noise
regulations, the Administrative Law Judge recommends that the City dismiss both
alleged violations.
M. K. S.
[1] Exhibits 2-3 and 13; Testimony of Christine Rozek, Deputy Director, St. Paul Department of Safety and Inspections (DSI).
[2] Test. of Richard DeFoe.
[3] Test. of C. Rozek.
[4] Ex. 9; test. of City Patrol Officer Tong Yang and R. DeFoe.
[5]
[6]
[7] Test. of P. Carlson.
[8] Test. of Kurt Just, R. DeFoe and C. Rozek.
[9] Ex. 9.
[10] Test. of P. Carlson and Kerry Antrim, Ex. 2-1.
[11]
[12] Ex. 13.
[13] Ex. 2-1.
[14] Ex. 4; test. of C. Rozek.
[15] Test. of C. Rozek.
[16]
[17] Test. of Kerry Antrim.
[18]
[19] Exs. 10, 11, 12; test. of R. DeFoe and Kurt Just.
[20]
[21]
[22] Test. of Kerry Antrim and P Carlson.
[23] Test. of R. DeFoe and C. Rozek.
[24] Test. of P. Carlson and R. DeFoe.
[25]
[26]
[27] Ex. 8, test. of T. Yang.
[28] Test. of K. Antrim.
[29]
[30]
[31] City website: http://74.125.95.132/search?q=cache:0O_gmqgsD5cJ:www.ci.stpaul.mn.us/index.asp%3FNID%3D2000+293+st.+paul+legislative+code&cd=2&hl=en&ct=clnk&gl=us
[32] Test. of P. Carlson.
[33]
[34] Test. of R. DeFoe
[35]
[36] Test. of K. Just and R. DeFoe.
[37]
[38] Test. of R. DeFoe.
[39]
[40]
[41] Ex. 3.
[42]
[43] Test. of P. Carlson.
[44] Test. of C. Rozek.
[45] Test. of R. DeFoe and K. Just.
[46]
[47]
[48] Test. of P. Carlson and R. DeFoe.
[49] Test. of R. DeFoe and K. Just.
[50] Test. of K. Just and P. Carlson.
[51] Test. of T. Yang.
[52] Test. of P. Carlson, Ex. 8.
[53] Ex. 8.
[54]
[55]
[56] Test. of T. Yang.
[57]
[58] Test. of T. Yang.
[59] Test. of T. Yang.
[60] Test. of P. Carlson.
[61]
[62] Test. of K. Just.
[63] Test. of T. Yang.
[64] Test. of K. Just.
[65] Test. of K. Antrim.
[66] Test. of C. Rozek.
[67]
[68]
[69]
[70]
[71] Ex. 5.
[72] Ex. 6.
[73] Ex. 6.
[74] Factual Finding 7.