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89-454 WHITE — CITV CI.ERK COURCII PINK — FINANCE GITY OF S � I T PALTL 8�— �� CANARV - DEPARTMENT BI.UE - MAVOR File NO. City Attny/PBB Council solution Presented By ' "' Referred To Committee: Date Out of Committee By Date RESOLVED, that the Privat C ub, Entertainment (3) , Restaurant D, and Private Fue1 P p licenses held by the Hillcrest Country Club, Inc . , o the premises at 2200 Larpenteur Avenue East in Sai aul, are hereby suspended for a period of three consecu iv days . This suspension shall commence on the first b si ess day following publication of this Resolution. This Resolution is based o the record of the proceedings before the Administrative Law J dge, including the hearing on October 20, 1988, the docume s and exhibits introduced therein, the remarks offered on behal o the parties at the council hearing on March 9, 1989 , an t e deliberation of the Council in open session. The Counci opts the findings of fact and conclusions of law of the Ad i istrative Law Judge contained in his report dated February l , 1989 , a copy of which is attached hereto and made pa f this Resolution, except as the findings and conclusions th re n were amended by the two pages of Amended Findings and Con 1u ions which were adopted by the Council , and are at�ached h re o as A-1 and A-2 , and are incor- porated in this Resolution< A copy of this Resolut'o , ::as` adopted, shall be sent by first class mail to the Ad ';n strative Law Judge and to the licenseholder. , COUNCIL MEMBERS " � Requested by Department of: Yeas Nays •-„ � � c °',; Dimond Lo� � In av r Goswitz� Rettman f Scheibel __ A i n t BY Sonnen �• MAR � Form Appr ved by Cit Attorney Adopted by Council: Date • • Certified a -ed by Counc' Secretary By– a &� , � �. By C Appr e by 1rlavor. Da � f i�� Approved by Mayor for Submission to Council _ By PU61iSiiED R 2 � 1989 ; �'�- �� s��*'�. CITY OF SAINT PAUL .��• ; � �; OFFICE OF THE CITY ATTORNEY �� uni�uw ,� '?.+ "'� 1°° �� EDWARD P. STARR, CITY ATTORNEY ,• '�`''�n�„�';�•��''`' 647 City Hall, Saint Paul,Minnesota 55'102 612-298-5121 GEORGE LATIMER MAYOR March 10, 1989 Mr. Lonny D. Thomas Attorney at Law 2300 World Trade Center 30 East Seventh Street St. Paul , MN. 55101 RE: City of St. Paul vs . Hil c est Country Club Dear Mr. Thomas : Enclosed is a copy of the Re ol tion which will appear on the Council agenda for March 16 , 1 89. I would anticipate publication of the Resolution on March 2 , 1989, which would mean the suspension is effective beginning Sund , March 26 , 1989. You can check on this for your clients by ca li g the City Clerk' s office a couple days before publication. C 11 me if there are any matters that arise in regard to this . Very truly yours , PHILIP B. BYRNE " Assistant City Attorney Enc . cc : Albert B. Olson _ �j�� • � � City Clerk ►� h�u� 4 �a,vti �� r,Qa(� ' �,�q�� ,� �. �e��a� ``O�G` � Is Gtu,e � �i�t��Q �v r�a� F�brua�l7,�9� u,��lcs , �� ., _ �`1 _ .� � ,�a � �r�. � � ��:'�� ,�,,.,, *f�� wHITE - C�rr CLERK COU[ICII /�, � PINK - FINANCE G I TY OF S � I NT PA U L / CANARV - OEPARTMENT ��J � BLUE - MAVOR File NO. • i�� City Attny/PBB • • Council solution �-`�� _� =, r-�� t ; ` '• � �.,__.../i Presented By � i Referred To Committee: Date Out of Committee By Date RESOLVED, that the Privat � lub, Entertainment (3) , Restaurant D, and Private FueliP p licenses held by the Hillcrest Country Club, Inc . , o the premises at 2200 Larpenteur Avenue East in Sai � aul , are hereby suspe ded for a period of three consecu v days . This suspens on shall commence on the first b si ess day following blication of this Resolution. This Resolution is basedio the record of e proceedings before the Administrative La ; J dge, including he hearing on October 20, 1988, the docume s and exhibits 'ntroduced therein, the remarks offered on behal ; o the parties at the council hearing on March 9, 1989, an � t e delibera on of the Council in open session. The Counci � a opts the indings of fact and conclusions of 1a�1 0� the Ad i istrativ aw Judge contained in his report dated July 7 , 9 8 , a co of which is attached hereto and made part of thisiR soluti n, except as the findings and conclusions therein wer ia ende by the two pages of Amended Findings and Conclusions wh'�h wer adopted by the Council , and are attached hereto as A-1 �.d A , and are incorporated in this Resolution. i A copy of this Resolut , as adopted, shall be sent by fil�°�t class mail to the Ad n' strative Law Judge and to the licenseholder. i i �I COUNCIL MEMBERS Yeas Nays Requested by Department of: Dimond �� [n �av r Goswitz Rettman B Scheibel ' A g �n s Y Sonnen Wilson Form Appr �by City At ney Adopted by Council: Date � B �jf��!' Certified Passed by Council Secretary ' Y By- Approved by Mavor. Date — — Approved by Mayor for Submission to Council By BY �. _ : __. ; ___ ,. ..�., _. _. .�_ _._ . . ��i��.� � , , 1`..'.�s'�..i ...m ?!. /q7� I/A/ y`� [04h�'•�� //,[-� J / .�� .�.� p� \./� �� '!�f y (� 3:� o -,. ?, �; a °2..��•.,: - _ °^;i,y,�......-''� o.�, 1868 STATE O I N N ESOTA OFFICE OF ADM NIS RATIVE HEARINGS FIFTH FLOOR,F UH XCHANGE BUILDING 310 FOU H A ENUE SOUTH MINNEAPO IS, NNESOTA 55415 ( 12) 1-7600 Februa y 7, 1989 St. Paul City Council Attention: Albert B. Olson City Clerk City of Saint Paul 386 City Hall St. Paul, MN 55102 Re: Aillcrest Country Club; OAH Doc et No. 5-2101-2750-6. Dear Mr. Olson: Enclosed and served upon you b m il, please find the Findings of Fact, Conclusions and Recommendation and th Supplementary Findings of Fact, Conclusions and Recommendation of e Administrative Law Judge in the above-entitled matter. I also enc os the official record, and I am closing our file in this matter. S ncerely, -- . o.,.�.�c L. K�-G.�, � • OWARD L. RAIBEL, JR. dministrative Law Judge elephone: 612/341-7608 HLR�ih'� Encl�s cc: Philip B. Byrne Lonny D. Thomas AN E�U L PPORTUNITY EMPLOYER �.� /��y�_ �5�{ �-zia�-z7�o-b C STATE OF MI NESOTA OFFICE OF ADMIN T TIVE HEARINGS FOR THE CITY OF T. PAUL, �IINNESOTA In the Matter of Hillcrest Country Club licenses to FINDINGS OF FACT, — do Business in the CONCLUSIONS AND City of St. Paul . RECOMMENDATION The above-entitled matter came on fo hearing before Administrative Law Judge Howard L. Kaibel , Jr. , on Octo r 0, 1988 in the City Hall Annex, St. Paul , Minnesota. A subsequent conti ue hearing mutually agreed to by the parties was later cancelled at their mu ual request. The hearing record closed on January 13, 1989, upon rec ip of final post-hearing submissions. Philip B. Byrne, Assistant City tt rney, 647 City Hall , St. Paul , Minnesota 55102, appeared on behalf f he City licensing staff. Lonny D. Thomas, Attorney at Law, 332 Hamm Bu ld ng, 408 St. Peter Street, St. Paul , Minnesota 55102, appeared on behalf f he Licensee. This Report is a recommendation � n t a final decision. The St. Paul City Council will make the final decisio � a ter a review of the record. The City Council may adopt, reject or modifyith Findings of Fact, Conclusions, and Recommendations contained herein. ,ur uant to Miinn. Stat. § 14.61 , the final decision of the City Council shall 'ot be made until this Report has been made available to the parties to the pro ee ing for at least ten days. An opportunity must be afforded to eac p rty adversely affected by this Report to file exceptions and present arg e to the City Council . Parties should contact Albert B. Olson, City Cler , 86 City Hall , St. Paul , Minnesota 55102 to ascertain the procedure for fii ng exceptions or presenting argument. STAT �ME T OF ISSUE Should evidence obtained via a �wa rantless search of Licensee's premise5 be entertained herein? Based upon all of the proceed hg herein, the Administrative Law Judge makes the following: FI DI GS OF FACT 1 . Licensee is a private as oc ation, whose facilities are available only to fee-paying members and th ir guests. It does not hold itself out as being available to the public ge �r lly. 2. Licensee does not have nd was never required to have an on-sale liquor license to serve members f he general public. 3. Licensee does possess r st urant, entertainment, fuel storage and "private club" licenses which pe i storage, dispensing and consumption of alcoholic beverages on the premi es. � �. ��-��`� 4. At approximately 7:45 P.M. In uly 15, 198a, the St. Paul Police Department received an anonymous call alleging that Licensee was serving alcoholic beverages to members of t , g neral public without a requisite license. 5. An off-duty police lieuten nt as consulted immediately and he advised the on-duty sergeant to (1 ) rite up a memo of the call ; (2) check with the vice office on Monday to s e if the Hillcrest Country Club had any licenses with the City that might b violated by the alleged activity; and � (3) figure out on Monday what actio , 'f any, should be taken in response to the anonymous allegation. 6. Thirty minutes later the a on mous tipster called again, demanding to know what action was being talcen on th allegations. 7. The anonymous tipster rema ns anonymous to this day and has never filed a formal sworn complaint. 8. The on-duty sergeant did n 't etermine what the Country Club was licensed to do or not do, but calle t e off-duty lieutenant again regarding the tipster's insistence. They did no discuss obtaining a warrant. 9. The off-duty lieutenant an a f riend, who were not Hillcrest members, then drove in the lieutenant's own nm rlced car to Licensee's premises to see if they could purchase a drink. 10. The lieutenant knew he sho ld not enter the premises because he was not a member of this private club. 11 . The lieutenant did not pre en his credentials or inform the employees that he was conducting an "i spection". 12. There was no one at the en ra ce of the Club to inquire about his membership. 13. The lieutenant and his f ri nd, who were both in plainclothes, proceeded directly to the bar, sat o and ordered a beer. Based upon the foregoing Findi s of Fact, the Administrative Law Judge makes the following: C NC USIONS 1 . That the St. Paul City Co ncil duly acquired and now has jurisdiction over the within proceeding. 2. That the notice of hearin i in all respects proper with regard to form, content, execution and filin . 3. That the City has complie w th all other substantive and procedural requirements of law and rule. 4. That evidence relating to th observations of the •officers after their entry into Licensee's premis �s hould not be considered in this proceeding, as discussed in the at ac ed Memorandum. 2- . �. (,�---��--�s� Based upon the foregoing Conclusi ns, the Administrative �aw �udge makes the following: RECOM EN ATION IT IS HEREBY RECOMMENDED: that t e t. Paul City Council dismiss the proceeding and take no further action IT IS FURTHER RECOMMENDEO IN THE 'iT RNATIVE: that if the Council decides " to review the challenged evidence, th 't t consider the recommendation in the separate sealed supplementary report. Dated: February ��'� , 1989. i � r H WA D L. KAIBEL, JR. mi istrative Law Judge TI E Pursuant to Minn. Stat. § 14.62, su d. 1 , the agency is required to serve its final decision upon each party a d he Administrative Law Judge by first class mail . Reported: Taped. ME OR NDUM This is a case where the City Co nc 1 (and/or perhaps reviewing courts) is asked to uphold evidentiary sanction . This �iemorandum is not the appropriate place for a lengthy treatise on that su ject. Suffice it to note that the atta he Report assumes that law enforcement authorities must ordinarily obtain w rr nts to invade citizens' reasonable expectations of privacy. However, c ur s and governmental officials have historically established some limita io s on the warrant requirement such as easy-to-move vehicles, evidence in ° la'n sight", et cetera. The recommended ruling herein an t e cases requiring it are ultimately founded in the federal (and Minneso ) onstitutional requirement of judicial warrants to enter private premises, nl "upon probable cause, supported by oath or affirmation". (U.S. Consti ti n, Amendment 4; Minnesota Constitution Article 1 , Article 1 , Section 10) . In his case the governmental intrusion was not based on any oath or affirm ti and there was no warrant. There is no serious question he e ver whether an anonymous phone call would have been sufficient cause fo i suance of a search warrant. The cases in this area clearly require some r as n to believe that an informant whose identity is not disclosed, must at ea t be certifiably "reliable". .� �, ��',�-�-�s� It is also well settled that gove t officers must n� ieaxt identify themselves and present credentials wh n ntering private premises to transact government business. The requirement bf a warrant when demanded by citizens under those circumstances has been ap 'li d broadly in administrative proceedings including the FTC, SEC, O HA and NLRB. C.F. : (1 ) Lafave, Search and Seizure: A Treatise on the Fourt A endment, § 1 .7(e) , 157 (1987) ; Board �f License Cortmissioners of the Town f iverton v. Pastore, 463 At1 .2d 161 (R.I. 1983) ; In the Matter of Finn's Li uor Sho Inc. et a1 . ,�249 N.E.2d 440 (N.Y.App. 1969) ; and Leo rande v. St te Li uor Authorit , 268 N.Y.Supp.2d 433 - (S.Ct.App.Div. 1966) ; See v. Seattle 3 7 U.S. 541 , 87 S.Ct. 1737 (1967) ; and One 1958 P1 outh Sedan v. Penns lva ia 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) . Although there is some discussi o the Club being a cortmercial establishment, it is clear from the cas s that the requirement for a warrant applies to people rather than place . It is a comnon misconception that police need warrants only to invade on 's home or bedroom. It is clear that the law also requires judicial appr va of inspections of everything from private workplaces to public teleph ne booths. Katz v. U.S. , 389 U.S. 347, 351 L.Ed. 52, 88 S.Ct. 507 (1967) . Ho ever, people's expectations of privacy outside the home are obviously "dif er nt from and indeed less than a similar expectation in an individual 's hom : ew York v. Burger, 482 U.S. 691 , 107 S.Ct. 2636, 96 L.Ed. 2d 601 (1987) The cases generally turn on wh n rather than where) people have a legitimate expectation of privacy. T e people in Licensee's private club established that club, in part, to gu rantee such an expectation. When members attend the Club they expec t commingle only with other carefully screened members and their invite g ests. They pay annually and monthly for this privilege. The State Liquor Control Act hi h provides for state permits and inspections, specifically provide f r issuance of search warrants "in connection with violation of this ch pter or other laws relating to sale, taxation, transportation, manufa u or possession of alcoholic beverages. " (Minn. Stat. § 340A.704) . There is no inherent conflic b tween the warrant requirement and St. Paul Code 310.12 permitting searches f icensed premises whenever they are occupied, and no question of con ti utionality so long as the ordinance is not construed to mean "warrantless" ea ches. The ordinance is not a substitute for warrants properly defining e ime, place and scope of inspections of private premises and is not con tr ed that way herein. There is nothing in this re or to support an overwhelming governmental interest sufficient to overcome th presumption that a warrant is necessary. This is not a case involving 13 ,0 0 autos stolen and dismantled annually in New York at a loss of $225 mill 'on that was dealt with in 8urger, supra. Keeping a few members of the p li from drinking in bona fide private clubs is not a comparable regulatory pr blem. It should be noted that th r comnended decision is a narrow evidentiary ruling. It applies only to bo a ide private premises which do not hold themselves out as being open t t e public generally. It also does not reach the question of whether warran s hould be required when government officers identify themselves and annou ce he purpose of routine inspections. -4- � .� (�'��-�-�y x-z�o�-z�50-6 STATE INNESOTA OFFICE OF ADMI IS RATIVE HEARINGS FOR THE CITY 0 � ST. PAUL, MINNESOTA In the Matter of Hillcrest SUPPLE MENTARY Country Club Licenses to FINDINGS OF FACT, - do Business in the CONCLUSIONS AND City of St. Paul . RECOMMENDATION SUPPLEMENTA F NDINGS OF FACT 14. The lady who waited on the li utenant was inexperienced. It was only her second night behind the bar. 15. She did not know members b s ght and had no reason to be suspicious of the law officer's pretense that e as a legitimate member or guest of a member. There were no other patron i the bar. 16. There were only two ways t at she had been trained to account for her dispensing beverages: (a) write ea h ransaction on the member's regular tab; or (b) accept a recognizable coupon pu chased by invitees who attended a member-sanctioned special event on he premises earlier that evening. 17. She served the lieutenant nd his friend their beer, but did not know how to handle their request to pay cas for it. 18. She consequently consulte h r supervisor, who found a way to accept and properly account for the lieut na t's offer of cash for this dispensing of Club beverages. 19. The parties have stipulat d hat this is the first licensing complaint ever lodged against Hill re t Country Club. Based upon the foregoing Suppl me tary Findings of Fact, the Administrative Law Judge makes the fo lowing: SUPPLEM NT RY CONCLUSIONS 5. That the inspections dep r nt has proven by a preponderance of the evidence that Licensee sold alcoh 1ic beverages to members of the public in violation of its private club lic ns . 6. That the unintentional s le as an isolated mistake. Based upon the Supplementary on lusions, the Administrative Law Judge makes the following: SUPPLEME A RECOl9MEMOATIONS IT IS HEREBY RECOMMENDEO: th t he private club license of Hillcrest Country Club be suspended for thr e 3) consecutive weekdays and that the � � . C�,� ��- ��{ suspension be stayed for one year, asllo g as there are no similar violations. Dated: February /7� , 1989. . D L. KAIBEL, J . dmi istrative Law Judge ME OR NDUM This is not a bar with an on-sal 1 quor license where a first-offense for illegal sales would result in a shor s spension of that license. This is a , non-public, private club where only em ers and identifiable guests can enjoy its relatively "exclusive" recreatio al facilities. A second-night inexperienced employee mistakenly th ug t that an undercover policeman was a legal member or guest at this privat c ub. He walked right in as if he belonged. There was nothing to lead he to believe that he was not a member. On the other hand, she or her superv'so should have guessed that there was a problem when he had neither a regula t b as a member or a "coupon" sold to guests at a club function that eveni g. She did think it odd that the undercover officer asked to pay in sh and she did not know to handle the transaction because it was first ti s meone tried to pay cash. She consulted her supervisor who made s eci 1 arrangements to accommodate a guest that she thought wanted "one more" ft r the coupon sales had ended. That was a mistake; but hardly a horrendous ne. It will not particularly serve he public interest here to take licensing action against this club for its is la ed error, other than a stayed sentence. The mistake is not lilcel t be repeated. The practical aspects of privat e forcement of inember status were not explored herein, although the quest on was raised in the interest of a complete record. The mistake could ha e been avoided if Licensee had stationed someone at the door to ch ck the identification of all prospective patrons or taken other steps to scr en them. The attached Report does not "i fe " anything factual regarding the failure of any witness to testify a y subject. Both sides had full opportunity to subpoena and examin a witness they felt had relevant testimony. All facts found herein ar based solely on the testimony and the rest of the record offered and rec iv d. There are no prescribed presum ti e penalties for private licensees. The closest presumptive penalty (Ordin nc 409.26) for public establishments is "after hours sale or display of al oh lic beverages" which is an illegal sale to the public by an otherwise auth ri ed establishment, which would be three consecutive days suspension for th f rst violation. Under the ordinance the Council has the authority to devia e n an individual case upon written 2- � � C��-�� , reasons specifying "why the penalty el cted was more appropriate. " The deviation recommended herein (stayed im osition) is based on several exculpatory factors: (1 ) No criminal intent, an hone t istake of a new employee; (2) No indication of an ongoing at empt to avoid the regulation; (3) Likelihood that the offense wi 1 not be repeated; and ` (4) Lack of rules to guide the pe ator's conduct. This is certainly not a case where e is a need to severely discipline or remove an illegitimate operator fro a licensed industry. H. .K , Jr. . ��'� �`J�� AMEN �ED FINDINGS AND CO CLUSIONS I Findings : '' 1. Licensee is a private asso ia ion, whose facilities are available only to fee-payi embers and their guests . On Jul 15 , 1988 , it allow d ' ts remises to be used for a dinner or ban uet which a not have been restricted to members or their uests 2 . Licensee does not have and is not re uired �to have an on- sale intoxicatin li uor 1 ce se so lon as it does not sell li uor to an one , whe he members ,� uests or the � �eneral public. 10�. The lieutenant knew he 9ke � ae� ea�e� �ke g�eFx�ees beeexse �►e was not a member of thi p ivate club , but believed it was ro er for him to ente r lawful ur oses o ins ec- tion and investi ation und 'r he licensin laws . new. Lt. Winger was not reque t to show identification or prove membership either o enter the club or purchase a �drink. new. No signs or other indica i s limited the officer' s entry or his seating at the ba . new. The bartender served two b ers , took their cash, made change with the help of h HCC manager, and returned their change. new. There was no sign at the b r or on the bottles that this was available only for m m ers or guests . new. The bartender thought th fficer and friend were a part of a dinner party just e d d, for which she had been serving drinks and/or be r by redeeming tickets purchased for cash. new. A cash bar had been oper t d earlier on the premises in connection with the din r party. Conclusions : 4. That the evidence relatin t the observations of the officers after their entry into Li ' n ee ' s premises should xe� be considered in this procee in , as a proper civil entry into the licensed remises for th ur ose of lookin for violations directl re ated to the 'ce ses ho d at t at remises . � �%�-�.�� . Supplementary Findin:gs : 15 . She did not know members ight, and had not been directed - or trained to ask �whether e sons were or were not members or guests . While there w re no �other patrons in the bar , she thou ht the were ar o an earlier dinner art . 18 . She consequently consulte h r supervisor, the manager of the club , who found a way to accept and proPerly account o�r the cash aid for the e �rs . Supplementary Conclusion: 6 . That the t�g�a�ex��esa� sale a a �se�e�e�. mistake caused at least in art b the fact o t e earlier cash (ticket) bar or the dinner art or ban e . � ' .- > __ -- �,""� '��+ F" f".,�" ,,,,�"" � � � � ��" � �� ` �` � �� , .�.b'��N�f'. � ! ' ✓ � � .� �`'� �� .� � _ '��' __.r "�'-<' •-ar �-� ' ; _ -� - �•.: _ _ *1�+. STAT O M I N N ESOTA OFFICE OF D INISTRATIVE HEARINGS FIFTH FLO ,F UR EXCHANGE BUILDING 310 OUR H AVENUE SOUTH MINNE PO S,MINNESOTA 55415 (6 2)341-7600 Febr ar 17, 1989 St. Paul City Council �CE'V�� Attention: Albert B. Olson City Clerk FEg � �, �ggg City of Saint Paul 386 City Hall ��T� (�,L��{�(, St. Paul, MN 55102 Re: Hillcrest Country Club; OAH Doc et No. 5-2101-2750-6. Dear Mr. Olson: Enclosed and served upon you by ai , please find the Findings of Fact, Conclusions and Recommendation and t e upplementary Findings of Fact, Conclusions and Recommendation of th A inistrative Law Judge in the above-entitled matter. I also enclo e he official record, and I am closing our file in this matter. in erely, �. K�-�-�, • � W D L. KAIBEL, JR. i istrative Law Judge T le hone: 612/341-7608 HLK�ih'� Encl�s cc: Philip B. Byrne Lonny D. Thomas AN EGIUAL OPP T NITY EMPLOYER . � . . �;�.�. ;�,.�.� STATE OF MINNESOTA) ) ss. COUNTY OF HENMEPIN) AFFIDAVIT OF SE NI E BY U.S. MAIL Virginia R. Halling, being first ul sworn, hereby deposes and says that on the 17th day of February , gg , at the City of Minneapolis, county and state aforementioned, she served Ihe attached FINDINGS OF FACT, CONCLUSZONS D COMMENDATION AND UP FINDTNGS OF FACT, CONCLUSIONS �D COMMENDATION OF HE TIVE LAW JUDGE; OAH Docket No. 5-210 — 750-6 . by depositing in the United States m il t said City of Minneapolis, a true and correct copy thereof, properly e Neloped, with first class postage prepaid, and addressed to the indivi va s named on the attached mailing list. , / • . . • (J ,.�-�v �� Subscribed and sworn to before me � this 1� day of , 19 �. , �L� � (/d—Y1 ota ry Pub 'i c u► voN aEC,�N Nm�RN PU��G-MII��TA HENNEPIN (bUNTY w oo�wiss�on�t�s 9,�t Servi ce List 5-21 1- 750-6 Februa 7 1989 St. Paul City Council Attention: Albert B. Olson City Clerk City of Saint Paul 386 City Hall St. Paul , MN 55102 Philip 6. Byrne Assistant City Attorney City of Saint Paul 647 City Hall St. Paul , Minnesota 55102 Lonny D. Thomas Attorney at Law 332 Hamm Building 408 St. Peter Street St. Paul , MN 55102 . . , ��'y�_ ��; �-zy p�-z7�o-� STATE OF ;MI NESOTA OFFICE OF ADMIN !ST ATIVE HEARINGS FOR THE CITY OF T. PAUL, MINNESOTA In the Matter of Hillcrest Country Club Licenses to FINDINGS OF FACT, do Business in the COMCLUSIONS AND City of St. Paul . RECq�IMENDATION The above-entitled matter came o fo hearing before Administrative Law Judge Howard L. Kaibel , Jr. , on Octo r 0, 1988 in the City Hall Annex, St. Paul , Minnesota. A subsequent conti ue hearing mutually agreed to by the parties was later cancelled at their mu ual request. The hearing record closed on January 13, 1989, upon rec ip of final post-hearing submissions. Philip B. Byrne, Assistant City �tt rney, 647 City Hall, St. Paul , Minnesota 55102, appeared on behalf �f he City licensing staff. Lonny D. Thomas, Attorney at Law, 332 Hamm Bu �ld ng, 408 St. Peter Street, St. Paul , Minnesota 55102, appeared on behalf f he Licensee. This Report is a recortanendation, �lno a final decision. The St. Paul City Council will make the final decisio � af er a review of the record. The City Council may adopt, reject or modify h Findings of Fact, Conclusions, and Reco�mnendations contained herein. ur uant to Miinn. Stat. § 14.61 , the final decision of the City Council shall pt be made until this Report has been made available to the parties to the pro ee ing for at least ten days. An opportunity must be afforded to eac p rty a�versely affected by this Report to file exceptions and present argu en to the City Council . Parties should contact Albert B. Olson, City Clerk 3 6 City Hall, St. Paul , Minnesota 55102 to ascertain the procedure for fili g xceptions or presenting argument. STA7E EN OF ISSUE Should evidence obtained via a a rantless search of Licensee's premises be entertained herein? Based upon all of the proceedi gs herein, the Administrative Law Judge makes the following: FIN IN S OF FACT 1 . Licensee is a private ass ci tion, whose facilities are available only to fee-paying members and the r uests. It does not hold itself out as being available to the public gene al y. 2. Licensee does not have a s never required to have an on-sale liquor license to serve members o t e general public. 3. Licensee does possess re ta rant, entertainment, fuel storage and "private club" licenses which per it storage, dispensing and consumption of alcoholic beverages on the premis s. 4. At approximately 7:45 P.M, o Ju y 15, 1��, th� S�, paul palice Oepartment received an anonymous call all ging that Licensee was serving alcoholic beverages to members of the ge eral public without a requisite license. 5. An off-duty police lieutenan w s consulted immediately and he advised the on-duty sergeant to (1 ) w it up a memo of the call ; (2) check with the vice office on Monday to se if the Hillcrest Country Club had any licenses with the City that might be vi lated by the alleged activity; and (3) figure out on Monday what action i any, should be taken in response to the anonymous allegation. 6. Thirty minutes later the an ny ous tipster called again, demanding to know what action was being taken on he allegations. 7. The anonymous tipster rema'ns anonymous to this day and has never filed a formal sworn complaint. 8. The on-duty sergeant did n t etermine what the Country Club was licensed to do or not do, but calle t e off-duty lieutenant again regarding the tipster's insistence. They did no discuss obtaining a warrant. 9. The off-duty lieutenant a friend, who were not Hillcrest members, then drove in the lieutenant's own un arked car to Licensee's premises to see if they could purchase a drink. 10. The lieutenant knew he sh ul not enter the premises because he was not a member of this private club. 11 . The lieutenant did not p es t his credentials or inform the employees that he was conducting n ' inspection". 12. There was no one at the nt ance of the Club to inquire about his membership. 13. The lieutenant and his f ie d, who were both in plainclothes, proceeded directly to the bar, s wn and ordered a beer. Based upon the foregoing Fin in s of Fact, the Administrative Law Judge makes the following: C NCLUSIONS 1 . That the St. Paul City ou cil duly acquired and now has jurisdiction over the within proceeding. 2. That the notice of hea in is in all respects proper with regard to form, content, execution and fi in . 3. That the City has comp ie with all other substantive and procedural requirements of law and rule. 4. That evidence relatin t the observations of the officers after their entry into Licensee's pr mi es should not be considered in this proceeding, as discussed in th a tached Memorandum. -2- Based upon the foregoing Conclus on , the Administrative Law Judge makes the following: RECO ME DATION IT IS HEREBY RECOMMENDED: that Ihe St. Paul City Council dismiss the proceeding and take no further acti ; IT IS FURTHER RECOMMENDED IN TH iA ERNATIVE: that if the Council decides to review the challenged evidence, �a it consider the recommendation in the separate sealed supplementary repor �� Dated: February / �� , 1989. � � / , H ARD L. KAIBEL, JR. ,' A inistrative Law Judge i i i . � N TICE Pursuant to Minn. Stat. § 14.61, ubd. 1 , the agency is required to serve its final decision upon each partylan the Administrative Law Judge by first class mail . Reported: Taped. ME RANDUM This is a case where the City Co ncil (and/or perhaps reviewing courts) is asked to uphold evidentiary sanct on . This �lemorandum is not the appropriate place for a lengthy treatise on t at subject. Suffice it to note that the a ta hed Report assumes that law enforcement authorities must ordinarily obtai w rrants to invade citizens' reasonable expectations of privacy. However c urts and governmental officials have historically established some li ta ions on the warrant requirement such as easy-to-move vehicles, evidence i " lain sight", et cetera. The recommended ruling herei a d the cases requiring it are ultimately founded in the federal (and Minn so a) Constitutional requirement of judicial warrants to enter private premis s, only °upon probable cause, supported by oath or affirmation" . (U.S. Con ti ution, Amendment 4; Minnesota Constitution Article 1 , Article 1 , Section 10 . In this case the governmental intrusion was not based on any oath or aff rm tion and there was no warrant. There is no seriou5 question he e over whether an anonymous phone call would have been sufficient cause fo issuance of a search warrant. The cases in this area clearly require so r ason to believe that an informant whose identity is not disclosed, must t east be certifiably "reliable". -3- It is also well settled that gove m t affic�rs mus� tt� l��s� id�n�ify themselves and present credentials wh n tering private pr�misss tn transact government business. The requirement of a warrant when demanded by citizens under those circumstances has been ap li d broadly in administrative proceedings including the FTC, SEC, O HA and NLRB. C.F. : (1 ) Lafave, Search and Seizure: A Treatise on the Fourt A endment, § 1 .7(e), 157 (1987) ; Board of License Comnissioners of the Town f iverton v. Pastore, 463 At1 .2d 161 (R.I. 1983) ; In the Matter of Finn's i or Sho Inc. et a1 . , 249 N.E.2d 44� (N.Y.App. 1969) ; and Leo rande v. St te i uor Authorit , 268 N.Y.Supp.2d 433 (S.Ct.App.Div. 1966) ; See v. Seattle 3 7 U.S. 541 , 87 S.Ct. 1737 (1967) ; and One 1958 P1 mouth Sedan v. Penns lva ia 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) . Although there is some discussio o the Club being a comnercial establishment, it is clear from the as s that the requirement for a warrant applies to people rather than place . t is a comnon misconception that police need warrants only to invade on 's home or bedroom. It is clear that the law also requires judicial appr va of inspections of everything f rom private workplaces to public teleph ne booths. Katz v. U.S. , 389 U.S. 347, 351 L.Ed. 52, 88 S.Ct. 507 (1967) . Ho ever, people's expectations of privacy outside the home are obviously "dif er nt from and indeed less than a similar expectation in an individual 's home. ew York v. Bur er, 482 U.S. 691 , 107 S.Ct. 2636, 96 L.Ed. 2d 601 (1987) . The cases generally turn on wh n rather than where) people have a legitimate expectation of privacy. T e people in Licensee's private club established that club, in part, to gu rantee such an expectation. When members attend the Club they expec t comningle only with other carefully screened members and their invited gu sts. They pay annually and monthly for this privilege. The State Liquor Control Act hi h provides for state permits and inspections, specifically provide f r issuance of search warrants "in connection with violation of this ch pter or other laws relating to sale, taxation, transportation, manufac ur or possession of alcoholic beverages." (Minn. Stat. § 340A.704) . There is no inherent conflic b ween the warrant requirement and St. Paul Code 310.12 permitting searches f licensed premises whenever they are occupied, and no question of con ti utionality so long as the ordinance is not construed to mean "warrantless" ea ches. The ordinance is not a substitute for warrants properly defining t e ime, place and scope of inspections of private premises and is not cons ru d that way herein. There is nothing in this rec rd to support an overwhelming governmental interest sufficient to overcome he presumption that a warrant is necessary. This is not a case involving 13 ,0 0 autos stolen and dismantled annually in New York at a loss of $225 mill on that was dealt with in Burger, supra. Keeping a few members of the pu �li from drinking in bona fide private clubs is not a comparable regulatory ro lem. It should be noted that the re ommended decision is a narrow evidentiary ruling. It applies only to bo f"de privat.e premises which do not hold themselves out as being open t t e public generally. It also does not reach the question of whether warran s hould be required when government officers identify themselves and announ e he purpose of routine inspections. -4- x-x�o�-z��o-� STAT I 0 MINNESOTA OFFICE OF AD IN STRATIVE HEARINGS FOR THE CITY IF T. PAUL, MINNESOTA In the Matter of Hillcres t SUPPLEMENTARY Country Club Licenses to FINDINGS OF FACT, do Business in the CONCLUSIONS AND City of St. Paul . RECOMMENDATION SUPPLEMENT� Y INDINGS OF FACT 14. The lady who waited on the ' li utenant was inexperienced. It was only her second night behind the bar. 15. She did not know members bl s ght and had no reason to be suspicious of the law officer's pretense that e as a legitimate member or guest of a member. There were no other patron i the bar. 16. There were only two ways t at she had been trained to account for her dispensing beverages: (a) write ea h ransaction on the member's regular tab; or (b) accept a recognizable coupon pu chased by invitees who attended a member-sanctioned special event on he premises earlier that evening. 17. She served the lieutenant nd his friend their beer, but did not know how to handle their request to pay as for it. 18. She consequently consulted �e supervisor, who found a way to accept and properly account for the lieute nt's offer of cash for this dispensing of Club beverages. 19. The parties have stipulated th t this is the first licensing complaint ever lodged against Hillc st Country Club. Based upon the foregoing Supplem nt ry Findings of Fact, the Administrative Law Judge makes the f 11 wing: SUPPLEMEN AR CONCLUSIONS 5. That the inspections depart en has proven by a preponderance of the evidence that Licensee sold alcoholi b verages to members of the public in violation of its private club licens . 6. That the unintentional sale �a an isolated mistake. Based upon the Supplementary Con Ilu ions, the Administrative Law Judge makes the following: I SUPPLE�ENTAR R GQ��ENDATIONS IT IS HEREBY RECOMMENDED: that he rivate club license of Hillcrest Country Club be suspended for three (3) onsecutive weekdays and that the sus ension be sta ed for one ear asllo as there are no similar p Y Y . 9 violations. Dated: February �� , 1989. 0 RD L. KAIBEL, J ., dm nistrative Law Judge M MO ANDUM This is not a bar with an on-sa e iquor license where a first-offense for illegal sales would result in a sho t uspension of that license. This is a . non-public, private club where only;me bers and identifiable guests can enjoy its relatively "exclusive" recreati ' na facilities. A second-night inexperienced employee mistakenly ho ht that an undercover policeman was a legal member or guest at this priv te club. He walked right in as if he belonged. There was nothing to le � er to believe that he was not a member. On the other hand, she or her supe ;vi or should have guessed that there was a problem when he had neither a regular tab as a member or a "coupon" sold to guests at a club function that eve in . She did think it odd that the undercover officer asked to pay in !ca h and she did not know to handle the transaction because it was first me someone tried to pay cash. She consulted her supervisor who made 5p cial arrangements to accommodate a guest that she thought wanted "one more' a ter the coupon sales had ended. That was a mistake; but hardly a horrendou o e. It will not particularly serv t e public interest here to take licensing action against this club for its so ated error, other than a stayed sentence. The mistake is not li ly to be repeated. The practical aspects of pri at enforcement of inember status were not explored herein, although the qu st'on was raised in the interest of a complete record. The mistake co ld have been avoided if Licensee had stationed someone at the door to ch ck the identification of all prospective patrons or taken other steps to cr en them. The attached Report does no "i fer" anything factual regarding the failure of any witness to testi any subject. Both sides had full opportunity to subpoena and exa in any witness they felt had relevant testimony. Al1 facts found her :in are based solely on the testimony and the rest of the record offered and ec ived. There are no prescribed pre um tive penalties for private licensees. The closest presumptive penalty (Or in nce 409.26) for public establishments is "after hours sale or display of al oholic beverages" which is an illegal sale to the public by an otherwise ut rized establishment, which would be three consecutive days suspension fo t e first violation. Under the ordinance the Council has the authority to d vi te in an individual case upon written -2- �� y��'.' f�,>+'JC'"�. /�� t"�ir°" reasons specifying "why the penalty s �le t.ed was mawe ttppraprinte." The deviation recommended herein (stayed hnp sition) is based an several exculpatory factors: 1 No criminal intent an honesl m stalce of a new em lo ee• � ) . P Y � (2) No indication of an ongoing tt mpt to avoid the regulation; (3) Likelihood that the offense wi 1 not be repeated; and (4) Lack of rules to guide the pe ator's conduct. This is certainly not a case where t er is a need to severely discipline or remove an illegitimate operator fro a icensed industry. N. .K. , Jr. -3- MAUN, HAYES, SIMON, .� IH NNESON, BREHL AND ODLAUG " ._ ' ATTO N YS AT LAW SAINT PAUL OFFICE I MINNEAPOLIS OFFICE 2300 WORLD TRADE CENTER 520 NORTHLAND EXECUTIVE OFFICE CENTER 30 EAST 7TH STREET 3500 WEST BOTH STREET SAINT PAUL,MINNESOTA 55101-49 04 MINNEAPOLIS,MINNESOTA 55431-45 04 TELEPHONE:612-229-2900 TELEPHONE�612-835-9550 TELECOPIER:612-229-2800 TELECOPIER=612-835-3463 March 3 , 1989 St . Paul REPLY TO: St . Paul City Council City of St . Paul 386 City Hall St. Paul, MN 55102 Attention: Albert B. Ols n City Clerk Re : City of St . Paul vs . i lcrest Country Club, Inc . Dear Clerk: Enclosed are an ori in 1 and 7 copies of Hillcrest Country Club ' s Memorandu ' n Opposition to City of St. Paul ' s Exceptions to indings, Conclusions, and Recommendations, with r fe ence to the above-entitled matter . Very truly yours, C—'�- ny D. Thomas LDT:vs Enclosures cc : Philip B. Byrne �tECE1VED NI�lR 0 31989 �� .w��: •"' ' � / C.�,, C�C, �� - ��c,��v�� ,�'�'_ � � �NAR Q � 1�89 STATE OF MINNESOTA v��'�f C�.��$A�� CITY OF ST. PAUL City of St. Paul, Plaintiff, MEMORANDIIM IN OPPOSITION TO CITY OF ST. PAIIL�B E7CCEPTIONB vs. TO FINDINGB, CONCLUSIONS, AND RECOMMENDATIONS Hillcrest Country Club, Inc. Defendant. --------------------------- - - Hillcrest Country C u ("Hillcrest") submits this memorandum in support of i s objections to the City License Division Exceptions t Findings, Conclusions and Recommendations ("Excep io s and Recommendations") . Hillcrest requests the C ty Council to adopt the administrative law judge's ( 'ALJ") recommendation that the license action against Hil c est Country Club be dismissed. The pertinent law and acts supporting the ALJ's recommendation are complete y described in Hillcrest's "Trial Brief" and "Reply Brief, " c p'es of which are attached hereto and incorporated herein as E hibits A and B, respectively. Hillcrest requests the Cou ci to review these briefs. The purpose of this memorandum ' s to very briefly address several points presented by the L'ce se Division in its Exceptions and Recommendations with w ich Hillcrest most strongly disagrees. D SC SSION Most of the Lice se Division's Exceptions and Recommendations address the s decision that the License Division's search and seiz �e were unconstitutional and therefore all evidence der'�e therefrom should not be considered. The AIJ's deci ' i n in this regard was well reasoned, compelled by the �a ts and applicable law, and ought not be disregarded y the City Council. While Hillcrest submits that the pr pr ety of the ALJ's decision is fully demonstrated by Hillcre t' previous memoranda attached hereto, along with the A 's own Memorandum, Hillcrest briefly reiterates the follow ng points. In support of Officer W nger's unlawful entry into Hillcrest's premises, the ic nse Division asserts that "there was no 'covert entry' n r did Winger seek to create the impression that he was ember or a guest. " License Division's Exceptions, at 2. I If Officer Winger's entry and subsequent conduct was not i t ded to conceal his identity as a policeman and imply his m mbership status, why did the License Division dispatch an f duty plain clothes detective rather than a uniformed pol ' e officer? The facts clearly demonstrate that the License D vision intentionally created the impression that Officer i er was not a police officer and was a Hillcrest member en i led to enter. Contrary to the ALJ's F'ndings and Conclusions, the License Division asserts t t Officer Winger was somehow authorized to enter Hillcr �st without a warrant. Yet, 2 Officer Winger testified tha e was personally aware that Hillcrest's facilities, i cl ding the clubhouse, are available only to Hillcrest e ers and acknowledged that he was not a member. Officer in er further testified that he felt he was authorized to en er Hillcrest only because of his inherent authority as a pol ' e officer investigating alleged unlawful activity. Yet, at t time of his entry, the only evidence of any unlawful co du t was two anonymous tips, the truth of which the police h d o more reason to believe than disbelieve. In fact, Off ce Winger had no authority to enter Hillcrest's private c ub facilities. The License Division a s repeatedly points to the ease with which Officer Winge as able to enter Hillcrest's premises. In fact, the s nce of the License Division's suggested security measure o exclude non-members is based upon Hillcrest's experi n e that such measures are unnecessary. It is well k o that Hillcrest is an exclusive country club whose facili i s are open only to Hillcrest's members. Even Officer Win e admitted his personal knowledge of this fact. Hillcrest s ot required to take unnecessary measures to exclude non-m mb rs if Hillcrest has no practical need for such measures Hillcrest's decision not to institute unnecessary se r ty measures does not in any way imply that Hillcrest do s not have a recognizable privacy interest. -3- The License Division a s continues to assert that Officer Winger's conduct did n t require a search warrant because of various statu e , ordinances, and cases authorizing certain warrantle s 'inspections" . Even if these authorities applied, Officer Wi ger's conduct far surpassed any mere "inspection. " Offi e Winger did not simply walk into Hillcrest and passively o serve or inspect. Rather, Officer Winger entered Hillcr s and affirmatively solicited a Hillcrest employee to make n unlawful sale. This conduct goes far beyond mere inspec io and constitutes an active investigation involving af ' ative solicitation of an unlawful act. The Council should also n te that Winger witnessed no other proscribed sales. Thus ' f Officer Winger had limited his "inspection" to t e type of passive observation/inspection contem la ed by the authorities cited by the License Division, Hi lc est would stand accused of nothing. In the event that the C u cil chooses to consider the tainted evidence, the License Di ision should not be heard to complain of the absence of an witness' testimony. The License Division had the rig t o compel testimony from any individual it believed to pos e relevant information. The License Division's Exceptions a Recommendations repeatedly note that Hillcrest's manager i not testify at the hearing, 4- and implores the Council to d �a various negative inferences from this fact. In fact, the L'cense Division is well aware of the reason for the lack o ny testimony by Hillcrest's manager. At the hearing o October 20, the License Division's complaint alleged n y that Hillcrest had made a single sale of an alcohol c beverage for cash to an undercover police officer. otwithstanding the limited allegations in the complain , and over the objections of Hillcrest, the ALJ allowed he License Division to cross- examine Hillcrest's first wit e s about various events which occurred prior to Officer W ng r's entry upon Hillcrest's premises. Although the club an ger was available to testify as to the events surroundin he alleged sale to Officer Winger, she had not prepared o iscuss these other unrelated facts. Accordingly, she was ot called by Hillcrest, nor was she called by the License Di ision. Subsequently, the hearing was adjourned and the Li ense Division was allowed to amend its original allegation . The License Division agreed that no further testimony w necessary to prove its allegations. Only after the produced his recommendation which proved to be contra to the License Division's allegations does the License Di ision complain of the club manager's failure to testify. The License Division should not be granted hindsight r should Hillcrest be held 5- accountable for the Licens D'vision's decision not to call the club manager. The License Division a s requests the Council to infer that on the evening in es ion Hillcrest repeatedly sold alcoholic beverages to non- e ers. Officer Winger testified that he saw no other unlaw ul sale. Further, the only other witness testified that s �e did not knowingly serve any alcoholic beverages to no �m mbers that evening, much less for cash. Hillcrest res �c fully submits that it is the I License Division which b a s the burden of proving its allegations, and this b �r n is not met by suggested inferences based on lack o ie idence. CIN LUSION Based upon the foreg �n , Hillcrest agrees with all of the findings of fact, conc us 'ons of law, and recommendations of the administrative law j dge. Hillcrest disagrees with all of the Exceptions an commendations submitted by the License Division. Ac r ingly, Hillcrest respectfully -6- requests that the Council ad p the Findings, Conclusions, and Recommendations of the ad in strative law judge. Dated: March 3, 1989 MA N, IiAYEB, SIMON, JOHANNESON, BREHL AND ODLAIIG �� • onn . Thomas (#170252) 2 00 d Trade Center 3 E t 7th Street S . Paul, Minnesota 55101-4904 ( 12) 229-2900 A torneys for Defendant H llcrest Country Club, Inc. 7- • , �� T.�'� � STA E F MINNESOTA CI Y F ST. PAUL --------- - � City of St. Paul, - Plairitiff, TRIAL BRIEF Ai�ID - � RESPONSE TO MEMORANDUM IN vs. OPPOSITION TO MOTION TO SUPPRESS EVIDENCE Hillcrest Country Club, Inc. • • Defendant. This Memorandum is subn tt d as both the Trial Brief and Memorandum in Response t the City's Opposition to Hillcrest's Motion to Suppr s Evidence. This memorandum will begin with a descri 'ti n of the pertinent facts presented at the hearing h ld on October 20, 1988. The hearing was adjourned to all he City of St. Paul ("City") to amend its Notice of Heari After the Amended Notice of Fiearing was served, the City nd Hillcrest Country Club, Inc. ("HCC") agreed that this mat e should be submitted to the Court on trial briefs witho t any further evidence being introduced. Prior to the hearing, HC erved and filed a motion to suppress all of the City's ' e idence. �iCC's Motion to Suppress was based upon the a le ed unlawful search of xCC's premises conducted by city pol 'c . In order to expeditiously resolve both the evidentiary is ues and the City's charges against HCC, the parties agre d that the Court should hear all evidence and subsequently d cide whether such evidence EXH B A should be suppressed. Thu , t the hearing, the court heard evidence and arguments reg rd ng both the motion to suppress evidence and the City's ch r es against HCC. The City has since served and filed its Me orandum in Opposition to HCC's motion to suppress evidence ' In order to facilitate t e dual purposes of this brief, the description of facts in ludes all facts pertinent to HCC's motion to suppress s ell as facts surrounding the violations alleged in the it 's Amended Notice of Hearing. HCC's arguments regarding 'th evidentiary issues and the facts surrounding the Ci y's allegations, however, are separately discussed. FA TS HCC is a private golf ou try club located at 2200 East Larpenteur Avenue, St. Paul 'nnesota. The club facilities include an eighteen-hole �1 course, swimming pool, and clubhouse. These faciliti s re available for use by only club members and their gu st , and the general public is prohibited from entering up ' lub property. In order to accommoda e its, members, HCC possesses a state bottle club license p rsuant to Minnesota Statutes Section 340A.414. HCC does n t possess any liquor licenses issued by the. City of St. ul. The state bottle club license, however, independen 1 authorizes HCC to "permit the consumption and display intoxicating liquor on the premises. �' M.S.A. Section 3 8 .414, Subd. 3 . -2- At approximately 7:45 p. . on Friday, July 15, 1988, the St. Paul Police Departmen received an anonymous call alleging that HCC was selli g lcoholic beverages without a license. In response, the ol 'ce officer in charge decided to write a report regarding h anonymous call and, if later deemed necessary, conduct fu th r investigation the following Monday. At approximately 8: 5 p.m. on the same evening, the police department received s cond anonymous call alleging the sale of an alcoholic v rage. The anonymous caller implied immediate action sho 'ld be taken, inquiring "what was being done about it?'� The po ice department does not know the identity of the anonym �s caller, but admitted at the hearing that one person is �1 eved to have made both calls. The City does not dispute h t if probable cause for the search of HCC's premises is 'd emed necessary, such probable cause must be found in the w anonymous calls. The police did not even attempt to i de endently confirm whether HCC possessed a license to sell 1 oholic beverages. Rather than attempt to �o firm any of the facts alleged by the anonymous caller, he City decided to forego the probable necessity of a e rch warrant and immediately dispatched an undercover po i e officer. The City has not disclosed why immediate ac i n was necessary. Thus, ' the police department directe Lieutenant Donald S. Winger -3- � �/ `" `�'�� ("Winger")� to don plain c ot ing and covertly enter HCC to attempt to purchase an alc h lic beverage. At 8:30 p.m. . . . Winger arrived in HCC's p rking lot and entered the clubhouse. Winger is not lub member. Winger testified that he was personally awar t at only club members and their guests are authorized o enter upon HCC premi,ses. Notwithstanding Winger's p rs nal knowledge that he was not authorized to enter upon C property, Winger entered the clubhouse and proceeded to ar the lounge area. At no time during Winger's presence u on HCC property did Winger advise anyone of his identity as a police officer or that he was neither a member, nor a e er's guest. In fact, Winger sought to create the impr s on that he was a club member or guest authorized to be i t e clubhouse. Since Winger did not ever disclose that he w s a police officer, HCC clearly did not consent to Winger' � earch. After entering the l u ge, Winger proceeded to the bar � area. He noted that the b r setup differed from the usual commercial bar as� there iwa no cash register or any cash whatsoever at the HCC b r area. Winger ordered a beer. After the beer had alr a y been opened and provided to Winger, he advised the b r nder that he wished to pay with cash. The bartender ob i usly was not prepared to accept � � Although Winger was ac ompanied by a friend who was neither a police officer nor club e er, HCC and the City have agreed that the friend's presence i n t necessary to the discussion in the parties' respective brie s. -4- cash for the beer, and the ba tender was forced to briefly leave the bar area to obtain c ange. The bartender testified that she mistakenly believe W nger to be a participant of an organization authorized to se HCC f-acilities that day. She further testified that Win r would not have been served a beer had she not believed W nger to be a member of the organization. Winger did ot advise the bartender that he intended to pay cash for t an of beer until the beer had already been opened and g've to Winger. Winger did not observe any other transacti ns involving alcoholic beverages. The bartender who serv d Winger had worked for HCC only one day at the time of h incident in question. She testified that the bar are 's not equipped to make change and is not intended to be ' o erated as a "cash bar. " She � testified that only members or members� guests are authorized to obtain an alcoholic be er ge. In order for members or their guests to obtain an al oholic or other beverage, the � member or guest must p o ide the bartender with the membership number of the m er whose monthly bill will reflect HCC�s charge for ,d'spensing any beverage. This charge is not a sale pric or a purchase of alcohol, but reflects HCC's charges t he member for dispensing the member's own alcohol or ot I e beverage to the' member or hi's guest. The charge is esse li lly a service charge. Although the above-de c 'bed procedure applies to day- to-day requests for alcoh 1i or other beverages from club -5- members, an entirely diffe e t procedure applies where an organization holds a funct on at HCC. It is not disputed �that on the evening of he incident in question, HCC's facilities were leased to rivate organization which had been elected a club member nd thereby authorized to use club facilities. In order t comply with HCC's statutory obligations regarding its s at bottle club license, HCC must ensure that only HCC mem r consume their own alcoholic beverages. Accordingly, wh n local organization which will be using HCC facilities �s made a member, such member organization provides HCC t all alcoholic beverages to be consumed by organization pa ti ipants. Tickets are then sold by the organization to par ic pants or included in the cost of the function, and the ti ke s are given to the ��bartender" in exchange for alcoholi I r other beverages which are actually owned by the me e organization, but served by HCC's bartender. Through hi system, HCC ensures that the F alcoholic beverages, whic � a e provided and owned by the member organization, are � erved only to such member organization's participant '. As a practical matter, this system also obviates the la utory requirement of attaching name labels on bottles, si c all alcoholic beverages being served are owned by the sa e organi�zation which is the only' organization allowed to b ' i the bar at the time of such _. exchanges and is the only o ce of the tickets necessary to obtain an alcoholic bevera �. -6- . G NT The remaining portion o HCC's brief includes HCC's response to the City's Me o andum in Opposition to HCC's Motion to Suppress Evidence ollowed by a discussion of the City's allegations against CC I. ALL EVIDENCE AGAINST� H C HOOLD BE SUPPRESSED BECAIISE � OBTAINED THROIIGH AN IIN III, SEARCH AND SEIZIIRE. HCC's original Memora du in Support of its Motion to Suppress evidence amply de pn trates that the City's search was unlawful because HCC d'd ot consent to the search, the City failed to obtain the n 'ce sary search warrant, and there was no probable cause t upport the search. In its Memorandum in Opposition, t e City does not dispute that HCC did not consent to the se rch, no search warrant was obtained, or that probable au e did not exist at the time of the search. Rather, the �Ci y mistakenly alleges that no search warrant was necessa b cause either HCC does not have a reasonable expectation f privacy or the search should somehow be deemed an "inspe ti n" authorized by statutes. A. HCC's Club Facil 'ti s are Protected From the T e of Search Conduc ed b Win er Because HCC Has a Reasonable E ec a ion of Privac Within the Facilities. . The City's first argu en appears to be based upon the ' plain view doctrine. It �s undamental, however, that the plain view doctrine does t apply to observations made in places in which the officer as erting plain view has no right -7- ��- �'��--� to enter, e.g. United Stat . Anderson, 552 F.2d 1296 (8th Cir. 1977) . The plain vi octrine does not apply to the facts of the instant case b cause the very police officer claiming plain view testi i at the hearing that he was personally aware that H C' premises are restricted to members only. The plain i w doctrine simply cannot apply here because Winger was no uthorized to enter HCC premises and actually knew that h w s not authorized to enter HCC premises . The City also arg s that HCC has no reasonable expectation of privacy bec us several potential exclusionary measures were not exercis y HCC. Thus, the City provides a list of ineasures which c ld be taken by HCC to exclude entry by nonmembers. Sin �e CC has not imposed all possible exclusionary measures, ne City expects this Court to conclude that HCC does n it ave a reasonable expectation of privacy. This is simply ,�ud crous. HCC does not forfeit its reasonable expectation � privacy by refusing to impose � , exclusionary measures �hi h are not necessary. The . detenaination whether a er on has a reasonable expectation of privacy does not depe 'd upon the quality of locks on his doors. j HCC .has never had ; p oblem with nonmembers attempting ' to gain entry to club f jci ities. It is well-known by the public that HCC is avai Ib e for use by members only. Even Winger testified that he w s aware that HCC is available for -8- me�be . rs only and nonmembe � are not allowed entry. Th3s public knowledge in and of i self has effectively prevented : any problem with nonmembers a tempting to gain entry to club facilities. HCC does not s ff r reduced privacy rights as a result of its decision t not institute unnecessary exclusionary measures. HCC h s taken all measures which it has determined necessary to r serve its members only private status. The reasonablene' s of these measures is not determined by what is possib e, but by what is necessary. B. Win er's Search o CC Pro ert and Affirmative Solicitation of a ro cribed Sale is not Authorized b Statutes Au ho izin Merel Warrantless Inspections. The City�s second argum nt to avoid the necessity of a search warrant authorizing Wi g r's conduct is that no search warrant was necessary as a re ult of the City's right to "inspect" HCC premises pu 'su nt to Minnesota Statutes Section 340A.414, Subd. 7 an v rious city ordinances which � also authorize limited "in 'p ctions. �� These statutes, however, authorize limited "i spections, �� not undercover solicitation of proscribed n uct. The City mistakenly argues that the statutory aut �or'ty to "inspect" encompasses virtually any covert search � d seizure scheme imaginable. I ' Although the ordinances and s at te relied upon by the City � certainly authorize the City, ub'ect to several limitations, to "inspect, " the City has fai �ed to provide any authority to -9 . 1 support a finding that Wi g r's undercover solicitation constitutes the type of inere i spection" so authorized. Each and every statutor a thority cited by the City to support the search conducte y Winger authorize only an inspection and/or examinatio I' o HCC premises under limited circumstances. The City ha ailed to point to a single statutory authority which x nds this authorization to Winger's conduct. Even if t e statutory authority cited by the City can somehow -be dee �d to authorize Winger's entry onto HCC property, such �t ority certainly cannot be extended to the conduct in w ic Winger engaged. Winger did not simply enter and inspec o observe, but affirmatively solicited the sale of an al �h lic beverage. Had Winger's "inspection" been limited to merely entering HCC and observing a proscribed sale o nother, HCC does not dispute that evidence of such sale �u d be authorized pursuant to the "inspection" statutes ci d by the City. In the instant �case, however, Winger person 11 solicited the only observed sale of an alcoholic bevera e. Winger's solicitation far exceeds the type of "inspect o " authorized by the statutes cited in the City's memorandu . The City cannot use its u ority to conduct warrantless •inspections as a ruse for ef �c ively conducting warrantless ' search and seizure operation ' . See, e.g. South Dakota v. Opperman, 428 U.S. 364, 96 S. t. 3092, 49 L.Ed. 2d 1000 (1976) ; United States v. L ws n, 487 F.2d 468 (8th Cir. - 0- 1973) . Winger knew as he e tered HCC premises that he intended upon entry to do f r more than simply conduct an "inspection" of HCC's facilit 'es . Rather, Winger intended to affirmatively solicit a pr c ibed sale of an alcoholic beverage. The City cannot n w be allowed to bootstrap warrantless searches with ts authority to conduct warrantless "inspections" of eg lated businesses. The cases cited by the i y similarly fail to provide any authority for Winger's co d ct. Every case cited by the City involves facts in which h authorized "inspection" was limited to mere observations, i. . , inspection. The City has failed to provide any case n which a court extended the definition of a state's "insp ct'on" authority to undercover solicitation of proscribed c nd ct. Although HCC does not � challenge Winger's limited st t tory authority to enter HCC for the purpose of conduct ng an inspection limited to observations, this limited a th rity cannot be extended to x Winger's affirinative solicitat o of proscribed sales without the constitutional � protection d'scussed in . each case cited by the City being completely e is erated. The City places great relfa ce upon a recent opinion of United States Supreme Court, e York v. Bur er, U.S. , 107 S.Ct. 2636, 96 L.Ed 2 601 • (1987) .� The Burqer ' opinion, however, has no app i ation to the instant case � A artial co P py of this o in on is attached as an exhibit to the City's brief. -1 - � �'� �� because the challenged "insp ct'on" in Burqer involved only observations without any ; a firmative solicitation of proscribed conduct. Even f Burqer were applicable, the instant facts fail to meet t � est set forth in Burqer. The Burger opinion establishes a a warrantless inspection is reasonable only if that ins c ion meets the following three criteria: l. "There must be a 'substantial' government interest that '�f rms the regulatory scheme pursuant to whic he inspection is made; " 96 L.Ed. 2d at 614. 2 . "The warrantl ss inspection must be 'necessary to further the re �'ul tory scheme' ; " Id. 3. "'The statuteils 'nspection program, in terms of the certainty an egularity of its application, must provide a co s itutionally adequate substitute for a warrant. ' ' n other words, the regulatory statute must per b the two basic functions of a warrant: it u advise the owner of the commercial premi �es that the search is being made pursuant to the 1 w and has a properly defined scope, and it s limit the discretion of the inspecting offi er (citations omitted) . To erform this fi st function the statute must be �sufficientl co ehensive and defined that the : . owner of commer i 1 ro ert cannot hel but be aware his ro e t will be sub 'ect to eriodic ns ections unde t ken for s ecific ur oses. � In addition in d fi in how a statute limits the discretion of th 'ns ectors we have observed that it must be �car f 11 limited in time lace and scope. �� Id. The "inspection" conducte y Winger fails to meet both the second and third requirem �t set forth above. � Winger's "inspectio " cannot be deemed "necessary to further the regulatory s h e. " Even if the City actually believed the anonymous al er's accusations, the City has -12- failed to explain why it a necessary for the police to conduct a warrantless "in pe tion" rather than request a warrant. In fact, the Ci y had no reason to believe the "inspection" would be jeopa di ed by waiting until a warrant was first obtained. Bur e equires that the warrantless inspection be necessarv, no erely convenient. Aside from summarily concluding that e warrantless "inspection" was necessary, the City has comp e ely failed to exnlain why the "inspection" was necessarily re ired to be conducted without first obtaining a warrant. The "inspection" also f ils to satisfy the third requirement set forth in th ur er test because Winger's "inspection" was not in any w y limited in scope. The City's interpretation of the st tu ory authorities allegedly authorizing Winger's activit'es would impose no limitations on the scope of conduct in w ic police officers may engage and later label as authoriz d "inspections.�� The City's interpretation of the properl d fined scope of "inspections" authorized by these statutes ap arently includes everything from conventional observation t e inspections conducted by regulatory inspectors and prec d by notice to the licensee, to undercover police sting o er tions aimed at a business . which happens to be subject t an "inspection" statute. Unless the statutes cited y the City are interpreted consistent with HCC's position e statutes themselves fail to comply with the requirements s t forth in Burqer. 13- Based upon the foregoi g, it is abundantly clear that evidence derived through th ity's unauthorized search of HCC premises must be suppre se . The City has not disputed that the two anonymous tip on which the City acted in conducting its warrantless earch do not provide the necessary probable cause to s p ort Winger's search. Rather, the City argues that probable c use was not necessary because either HCC did not have a r as nable expectation of privacy or Winger's warrantless seare s ould be deemed an authorized warrantless "inspection. " oth arguments are wholly unsupportable. HCC has a re s able expectation of privacy because HCC has taken those ea ures it has found necessary to protect its exclusive st t s as a private club. In addition, not a single statut o case cited by the City has even implied that the "inspec io s" authorized by regulatory statutes include the type of n rcover solicitation conduct in which Winger engaged. : There would have been no he ring in this matter without the evidence produced throu h Winger's unlawful search. Accordingly, HCC would not h ve provided any testimony in defense of a nonexistent comp ai t. Since all testimony at the hearing resulted from an u la ful search conducted by the �ity, all evidence must be sup r ssed and, consequently, the Amended Complaint against HCC is issed. 1 - I2. NO SANCTIONS SHOIILD B I POSED AGAINST HCC AS A RESIILT OF THE VIOLATI NS ALLEGED BY THE CITY. � In the unlikely even hat the Court somehow deems Winger's actions proper and re uses to suppress all evidence, the following discussion ad r sses the City's allegations in the Amended Notice of Heari g. HCC does not dispute ' h t Winger somehow purchased an alcoholic beverage in e ch nge for cash from an HCC "bartender" in the HCC c u house. In determining what penalty, if any, should be m osed, HCC simply requests that the following facts be cons de ed. HCC, as a private golf c untry club, has no interest in selling alcoholic beverages ' t the public. There should be little doubt that the sale o Winger would not have occurred had Winger advised HCC that 'he was neither a club member, nor a club member's guest. O r the years, HCC has strived to create and preserve the fa r ble image of an exclusive golf country club. This image s ndispensable to the membership of HCC. Among HCC's most i po tant features is the exclusive nature of HCC. This " e ers only" feature would be destroyed if HCC made a r ctice of providing its goods and/or services to non-memb rs. Since HCC has no interest in repeating its mistake of s lling an alcoholic beverage, imposition of any sanction il serve no purpose. That HCC certainly do s ot make a practice of selling alcoholic beverages for e sh is evidenced by HCC's lounge -15- - area. Winger testified that t ere is neither a cash register in the HCC lounge area, no y other means by which the "bartender" is capable of ak ng change. In fact, Winger testified that the HCC bart nd r with whom he dealt had to briefly leave the lounge ar a n order to make change. ' The lack of any capability to ac ep or return cash in the lounge area clearly evidences HC ' practice of not selling alcoholic beverages. - HCC admits that Winger's t ansaction proves HCC's system is not fool-proof. Winge � purchase of an alcoholic beverage for cash, however, es lted from a very unique set of circumstances. Winger re es ed to be served an alcoholic beverage at approximately the sa e time a member organization had terminated its sales of t c ets which could be exchanged � for drinks. As a result, th C bartender mistakenly, but reasonably, assumed that W n er was a member of the organization and had narrowly �mi sed the last opportunity to . purchase a ticket. Furthermor , the HCC bartender had worked at HCC only one day and wa probably not completely comfortable with all the uni e restrictions applicable to the service of alcoholic be ' r ges at HCC. Even if the bartender had questioned whet �r Winger was with the member organization, the can of bee II h d already been opened and ' given to Winger before Winger 'f red to pay with cash. The new bartender was therefore th us into the awkward position of either demanding return of th can of beer or accepting 1 - _ ��- �� the cash. Finally, the act al sale to Winger was consummated only through a separate CC employee who never even saw Winger. Both the HCC barte de and Winger testified that the bartender left the lounge a e for a brief period of time in order to determine what to lo about Winger's proffer of cash and, if accepted, to attem 't to obtain change. This other employee relied upon the HC ib rtender to identify the person requesting the alcoholic b e age as a member of the group who is simply paying to be e ed his own liquor. Based on this inaccurate assumpti n, the proscribed sale was consummated and change was gi en to Winger. This unlikely sequence of events is not as ly duplicated, and HCC should not be sanctioned for a sal esulting from this unfortunate series of coincidences. Finally, the Court sho 1 note that HCC has never been charged with a violation o any statute or ordinance regarding the unauthorize ale of alcoholic beverages. _ Indeed, HCC has never face ' a disciplinary action regarding any of its licenses. This 'a irable record of HCC further demonstrates that HCC is no ' l kely to repeat the infraction involved, and imposition of a ctions is not warranted. CO CL 3ION . Based upon the fore o' g, Hillcrest • Country Club respectfully requests this o rt to find the City's search and seizure to be wholly m oper, suppress all evidence obtained thereby, and di i s the allegations involved 17- herein. In the alternative ' H'llcrest Country Club requests this Court to determine t t the unique circumstances involved herein, accompani d by Hillcrest Country Club's admirable record as a p iv te country club support a determination that no sanct' n should be imposed against any of the licenses of Hillcres C untry Club. Dated: �!/�� , 1988. UN, GREEN, HAYES, SIMON, JOHANNESON AND BREHL ' B � � o y D. Thomas (�170252) 2 World Trade Center 3 East 7th Street S . Paul, Minnesota 55101-2900 ' ( 12) 229-2900 i A torney for Defendant Hillcrest � C untry Club 12/20/88,4,4256 • . I i I . _ -18- STATE 0 INNESOTA OFFICE OF ADMI IS RATIVE HEARINGS No. 5- 10 -2750-6 ---------------------------- ' - - In the Matter of the Private REPLY BRIEF OF Club and other Licenses of HILLCREST COUNTRY CLUB the Hillcrest Country Club, n . , ---------------------------- - - This Memorandum consti u es the Reply Brief to the "Final Argument" submitted i his matter by the City of St . Paul (the "City" ) . Hillcrest Country Club ' nc . ( "Hillcrest" ) reiterates the assertions set forth in th previous Memoranda provided in this matter by Hillcre t The search and seizure conducted by police offic rs for the City was clearly unauthorized since Hillcrest d' d not consent to the search, and no probable cause or sea c warrant existed at the time of the search. As with thelp evious arguments submitted on behalf of the City, the Fi al Argument filed by the City " provides absolutely no suppo t for the unauthorized search. Accordingly, all of the City' s evidence should be supressed and the complaint against Hi lcrest dismissed. The Court should also n te that the City does not dispute that it is contrary lo Hillcrest' s own interest for Hillcrest to make sales o alcoholic beverages to the general public. In its Fina rgument, the City implicitly acknowledges that Hillcrest, �!a a private country club, did E I IT B not intentionally make a al of an alcoholic beverage to Officer Winger under the m' st ken belief that he was simply a member of the general pu li . The City apparently agrees that, at worst, Hillcres nly mistakenly believed Lt . Winger to be a member of n rganization authorized to use Hillcrest ' s facilities, i cl ding the right to obtain an alcoholic beverage previo 1 purchased and provided by the organization for dispensi g in Hillcrest ' s lounge area to organization participants . T us, even the City' s version of the facts in this matte llege only that Hillcrest is guilty of erroneously ide ti ying Lt . Winger as a member of the organization entitled t obtain an alcoholic beverage . There certainly is no be ef t to be derived from punishing Hillcrest for making a m st ke that Hillcrest itself hopes will not be repeated. The City also att m s to persuade this Court to conclude that the sing e mistaken identification of Lt. , Winger as an authorized e er should be expanded to support the City's conclusion a Hillcrest commonly engages in . sales of alcoholic bever g s to nonmembers . In fact, there is no evidence befor he Court to support such a conclusion. Contrary to h City' s position set forth in its Final Argument, Hillcre �t was not obligated to present any evidence regarding the i ' s allegations . No facts should be inferred from Hillcr s 's decision not to provide further -2- evidence defending assertio s y the City wholly unsupported by the City' s evidence . n rary to the City' s position, Hillcrest is presumed innoc n until proved guilty and the City bears the burden of pr of on all issues in this matter. Since the City requested a t e hearing to amend its Notice of Hearing to include addi io al charges, Hillcrest chose not to waste everyone' s time b extending the hearing when a second hearing was clearly ne essary. After reviewing the Amended Complaint, and bein a vised by the City' s attorney that the City intended to , p t on no further evidence, Hillcrest simply decided tha ' t would be in everyone ' s best interest to waive further te ti ony and submit the matter on the written briefs . The Ci y' attorney. agreed. Now, the City seeks to use against i lcrest the decision by all parties that no further test mo y was necessary. In response to the Ci y s Final Argument, however, several points must .be r 'it rated. First, the City ' emphasizes on Page 1 of its br 'ef that Lt. Winger was not explicitly directed by the it to wear plain clothing in his entry onto Hillcrest pr mi es . Regardless of whether Lt. Winger was directed by t e City to wear plain clothing in entering Hillcrest, the r tical fact is that he did enter' Hillcrest property i la•in clothing and without advising anyone that he was en ering as a police officer. Furthermore, if the City had n ended the inspecting officer 3- � / L"`� � to wear a uniform, thereby a ising Hillcrest of his police status, the City undoubte 1y would have dispatched a squad car with uniformed police fficers . There can be no mistake that Lt. Winger, a plain c othes police officer, entered Hillcrest property wearing p ain clothes, as was intended by � the City Police Departmen . Second, Paragraph 4 o Page 2 of the City's Final Argument asserts that t i Court should "draw negative inferences from the fact t at Hillcrest ' s Manager was not called to testify at t e first day of hearing, because counsel did not know wha er testimony would be, and was not called to testify a he continued date. " This is clearly untrue. At the ea ing, counsel for Hillcrest made clear that the Manager as prepared to testify as to the relevant issues pertai :in to the original Notice of Hearing. Since the C ' ty was being allowed to examine Hillcrest' s first witne s regarding various events which _ allegedly occurred pri r to Lt. Winger's entry onto Hillcrest premises, it w ' s decided by Hillcrest counsel and advised to both the Cour nd City' s counsel that no further evidence regarding such p evious events would be provided unless and until the C 'ty amended its Notice of Hearing. ' After reviewing the am n ed Notice, counsel for both the • City and Hillcrest agre �d hat no further evidence would be necessary. Since the it has clearly failed to prove the -4- allegations set forth in thl' mended Notice of Hearing, no "adverse inferences" can be d awn from Hillcrest ' s decision � that no further evidence wo 1 be necessary to demonstrate Hillcrest ' s innocence . The Court should also no e that the City ' s assertion that the Court should ra adverse inferences from Hillcrest' s silence pervad s the City' s Final Argument. Since the evidence provided b the City clearly fails to prove the allegations set fo t in the City ' s amended Notice of Hearing, the City finds i s lf forced to attempt to prove such allegations by impl i g their existence through Hillcrest ' s refusal to provi e further exculpatory evidence. Such exculpatory evidence si pl is not necessary. Only a cursory review of Hillc es ' s filed Memoranda amply demonstrate Hillcrest' s comp e e disclosure and explanation of the pertinent issues. Third, the City's defen es of the alleged propriety of Lt. Winger' s search and seiz re remain as misguided as they were at the inception of thi 1 'tigation. The City continues to point to how easily L . Winger was able to enter Hillcrest property. Ag i , the reasonableness of Hillcrest' s expectation of pr vacy does not in any way • depend upon the difficulty f ce by Lt. Winger in violating this expectation. As a corr la ive example, a woman clearly has a protectable expecta i n of privacy as to the 5- belongings located within h purse. Yet, access to the belongings within a woman' urse is rarely closely guarded and can usually be effec ed without the employment of any force or deception. The o an ' s expectation of privacy in her purse is no less prote t d as a result of her refusal to employ all possible but u e essary security measures . Fourth, the City c�n in es to assert that Lt. Winger' s search and seizure is com ri ed within the police authority to conduct an "inspectio " of Hillcrest ' s premises as a result of Hillcrest ' s lic n es . The City states at Page 4 of its Brief that "regul to y and/or licensing inspections do in fact properly le d to the obtaining of physical evidence . " Hillcrest doe ot dispute that Lt. Winger had the authority to condu t an inspection of Hillcrest' s premises through passive bs rvation of the goings on within Hillcrest. Hillcrest fu h r agrees that physical evidence can be seized in connec ' to with an inspection limited to � the usual passive observ ti ns . The statutes authorizing inspections, however, ca no be relied upon by the City as authority for engaging i ffirmative conduct pursuant to which proscribed unlawfu ales of alcoholic beverages are solicited. Such activi y ar exceeds the type of passive ' "inspection" contemplate y the statutes . The City has failed to provide any ca e in which conduct similar to Lt. Winger ' s was deemed an u horized "inspection" because no such case exists . -6- ,� , Finally, the City ass �rt that Hillcrest has failed to institute changes in its ol 'cies to avoid similar future infractions . This issue h s not been explicitly addressed in Hillcrest ' s Memoranda be ause Hillcrest' s Trial Brief meticulously describes the u ique facts resulting in this matter. Although Hillcres as admonished its "bartenders" to be even more careful t ensure that only authorized persons are served properl , here is very little more that can or need be done to avo d ecurrence of this incident. C NC USION Based upon the forego n , Hillcrest Country C1ub, Inc. reiterates its request tha ' t e allegations set forth in the City of St. Paul ' s Amende otice of Hearing be dismissed or, in the alternative, th t o sanctions be imposed. Dated: January 13, 1989 . MAUN, GREEN, HAYES, SIMON, JOHANNESON AND BREHL B `�� _ D. Thomas ID#170252 • . , World Trade Center East Seventh Street St. Paul, MN 55101-4904 (612) 229-2900 Attorneys for Hillcrest Country Club, Inc. 7- s.��. CITY OF SAINT PAUL �• ; ; �r, OFFICE OF THE CITY ATTORNEY ,� uu�inw ,; '�r °11 1110 �� EDWARD P. STARR, CITY ATTORNEY ;. �-,;,, - "nu,n�°,,�� 647 City Hall, Saint Paul, Minnesota 55102 612-298-512� GEORGE LATIMER MAYOR R�CEIV�D February 24, 1989 �B 2 71989 CITY CL�RK To : Albert B. Olson City Clerk From: Philip B. Byrne� Assistant City Attor e Re : Hillcrest Country Cl b Licenses Council Agenda 44#�Ef� �f � Enclosed are an original and e en copies of Exceptions to the Findings and Conclusions of t e Administrative Law Judge dated February 17 , 1989 . Please di t ibute these in the same manner as you have distributed the p rt of the ALJ in this case. I am at the same time forwar 'n a copy of this document to the attorney for the licensee. Encs . cc: Lonny D. Thomas Attorney for Licensee .r ��•L,,,�,�,��, „�,r.:..:� �"� �"� ��'��T' ' �'`t �� _ ,�,` � RECEIVED STA E OF MINNESOTA �g 2 71989 OFFICE OF D INISTRATIVE HEARINGS No ' -2101-2750-6 CI7Y CLEI�K - - - - - - - - - - - - - - - - - - In the Matter of the License of CITY LICENSE DIVISION the Hillcrest Country Club EXCEPTIONS TO FINDINGS , — — — — — — — — — — — — — — — — — — CONCLUSIONS AND RECOMMENDATIONS The City of Saint Paul , 'ac ing through counsel for its License Division, files the followin ' e ceptions pursuant to P'Iinn. Stat . 1986, section 14. 61 , to the �p rt of the Administrative Law Judge (hereafter "ALJ") in the abo e atter , which was dated February 17 , 1989, and filed with the Cit C erk thereafter. A KGROUND On September 13 , 1988 , t e licensee was notified that a hearing would be held October 20, 198 n a charge of unlawful sale of an alcoholic beverage without a i ense on July 15 , 1988 . That charge was amended on October 20 , 19 8 , to include other sales on the same date; and the parties agreed h t since no further evidence would be submitted, no further hearing wa necessary. Thereafter , briefs were submitted by each party to th A J . ACTS The facts upon which thi m morandum is based are those received in the hearing before the Adm'ni trative Law Judge on October 20, 1988 . The Hillcrest Country lu (hereafter, "HCC") has a city private club license, which p rm ts the storage, dispensing and . -2- consumption of intoxicating 1i uor on the premises . It is , similar to the state bottle club pe i , a species of liquor license, and is therefore, more heavily ' v sted with the public interest and regulatory police powers th ther licenses . On the evening of July TS 1988 , Lt . Donald Win�er of the Vice Unit was directed to foll w-up an anonymous telephone tip and investigate the unlawful sal f liquor by HCC . The facts in evidence d how that Lt . Winger and his friend walked into the Hillcrest Co ry Club without being requested to show identification or proof o membership ; that no signs limiting the premises to members only w re observed; that no person or sign- in desk appeared to require e ission for entry; that they entered and sat down at the bar, ord r d two beers , paid in cash, and were given change; and that there w re no labels on the bar bottles of alcoholic beverages indicati g they were the property of inembers or otherwise unavailable for pu 1' c sale . There was no "covert entry" , nor did Winger seek to creat e impression he was a member or a guest. While Lt. Winger kne i was a members-only club, the evidence is that any person (police o o herwise) could have walked in and been served on that occasion he bartender testified that she was not able to say why she sold th beer , and accepted cash for it ; but did at one point say she tho gh Lt . Winger and friend were part of the earlier party. She s at d that at an earlier party that evening persons purchased ti ke s for drinks , and that she had served -3- them alcoholic beverages in Ixc an�e for a ticket . She did not know why she did not ask Lt. Wing � or a ticket , but took cash instead. There was no evidence that s e sked for any identification or proof of inembership , and no evidenc f signs in the bar area restricting display and consumption to me b rs . The bartender thought or assumed the persons at the party were m bers and family or guests , a fact which does not affect the ill g lity of the sale. While the bartender may have been inexperienced, he manager was there and did in fact make change . The manager was no called to testify at the first hearing because her attorney id not know what she tivas going to say, and was not later called to r bu the evidence of other sales by ticket . It is unlawful to sell in o icating liquor to anyone without a proper license, whether they b embers , guests or public . However , it is a fair inference for the ' f ct-finder , on the evidence in the record, to find that non-membe d non-guest persons attended the party. If the practice was fol', mbers to sign a chit or tab for consumption of alcohol by them lan their guests , there is no reason to have a cash bar run with ti ke sales unless the party was attended by some outside group. uch a fact adds weight to the reasonable inference that any em er of the public could have walked into the HCC on that occasion d purchased a drink as did Lt . Winger and friend. -4- L 'GA BACKGROUND The Hillcrest Country C 'ub (HCC) has no reasonable expectation of privacy in the areas of i s premises in which Lt. Winger and his friend purchased beer on ;J ly 15 , 1988 . This conclusion is based on two grounds : l . Licensed esta 1i hments such as the HCC are subject to reasonable ol ce and administrative in- spections under the la s hich create and permit the licensed activity, a s ' tu tion clearly kno�m to the licenseholder and all ic nseholders . 2. As a factual at er , the HCC did not restrict its bar or adjacent ar as to members only on that occasion, permitting a y erson access and the ability to purchase liquor. Section 310 . 12 of the a'nt Paul Legislative Code states : "Sec . 310. I2. I sp ction of nremises . The premises , facili ie , place, device or any- thing named in a y icense issued pursuant to any provision of the Saint Paul Legis- lative Code or o he law shall at all times while open to th p blic or whia:e being used or occupied for ny purpose be open also to inspection and e a 'nation by any police , fire, or health 'ff'cer or any building inspector of the ;c' ty, as well as the inspector. " This provision applies to 1 licenses . Section 404 . 09(a) of the Saint Paul Legislative Co , covering premises holding a private club license, provides : _ ��'• , �� r � -5- "Sec . 404. 09 . Reg a ions ; prohibitions . (a) Ins ection. It s all be a violation of this chapter or t olders of such license to prevent entry by p lice officers or the inspector when said e try is for the purpose of inspection and e said officers or inspector are on of i ial duty. " It should be noted that the H C holds a state bottle club permit as well . Minn. Stat. §340A.�+ 4 , subd. 7 , provides that establish- ments holding a bottle club p r it are open to inspection by peace officers , " . . . who may ente nd inspect during reasonable hours . " The HCC holds a restaura t license under chapter 331 of the Saint Paul Legislative Code, f which section 331 . 35 provides for inspection by proper city off c'als of every part of any food establishment operating under t e food licensing chapter . The bottle club permit u d r Minn. Stat. §§340A.414- .415 and the private club license, cha t r 404 of the Code, are species of liquor licenses , allowing the c nsumption and display by members of the club of intoxicating liqu r on the club premises without holding an on-sale license . Under Minnesota law, a w r antless search and seizure pursuant to authority under a licensin nd regulation ordinance is lawful if done during regular busine s hours , reasonable and consistent �aith the duties of the police offi e s and obligations of the licensee. State v. Wybierala, 235 N.W. 2 97 , 200 (Minn. 1975) . A part of the -6- underlyin� rationale for the a es leading to the same or similar results is that the acceptanc of a license to operate the enter- prise in question is implied on ent to reasonable supervision and inspection set forth in the 1 ce sing ordinances . See, e.�. , Peovle v. White, 259 Cal . App. 2 936 , 65 Cal . Rptr . 923 (1968) . In this case inspection autho it are based on both state statute and city ordinance. The United States Supreme C urt has established an exception to the Fourth Amendment warran equirement for administrative searches in "closely regulated ' terprises or businesses . The Court in New York v. Burger, 4 2 . S . , 107 S .Ct . 2636 , 96 L.Ed. 2d 601 (1987) , sur_imarized at 96 L.Ed. 2d 612 ff. the case law as it evolved from See v. Seat le, 387 U. S . 541 , 18 L.Ed.2d 934 (1967) , to the present . It should first be emphas ' ze that the case law has dealt with portions of commercial (that is , on-residential) premises that are not open to the public . If it ' s found in this case, as the evidence seems to require, that the area ntered by Lt . Winger were available and open to the public or any p r on who might walk in at that time , there is clearly no search and e' zure issue . What is observable by a person of the general public t commercial establishment is also observable by a police officer it out a warrant, and the same result holds true even though the poli e urpose is to inspect or investi- gate, a motive different than t at of the general public . People v. -7- DotY, 165 Cal . App. 3d 1060, 2 2 Cal . Rptr. 81 (1985) . This is based on Katz v. United States , 3$ . S . 346, 88 S .Ct . 507 , 19 L.Ed. 2d 576 (1967) , which stated th t ' (w)hat a person knowingly exposes to the public, even in his own ho e or office, is not a subject of Fourth Amendment protection." The case law makes clear that even in commercial areas of buil in s which are not open to the public , the expectation of privacy s reatly diminished, particularly where the activity that takes pla e ' s "closely regulated. " The Court in New York v. Burger, quotes r a 1978 case: "Certain industries have such a history of gove ental oversight that no reasonable expectation of privacy coul xist for a proprietor over the stock of such an enterprise. " 96 L.Ed. 2d at 612 . The liquor industry is recognized as such an indus r , Id. at 612 , and the state bottle club permit is indeed part f the Mirinesota Liquor Act (Minn. Stat . ch. 340A) . The St . Paul p iv te club license is by its provisions in chapter �04 of the Code on y required for establishments which do not have an on-sale licens , ut which nonetheless permit �heir members to display and con um intoxicating liquor. The New York v. Bur er Court went on to ho d hat warrantless inspections of commercial premises of per as 'vely regulated businesses are reason- able if three criteria are m t : 1 . There must b substantial government interest underly n the regulatory ordinance or laws pursuant t which the insp.ection is made. -8- 2 . The warrantles nspection must be necessary to further the reg 1 tory purposes . 3 . The regulatory o dinances must clearly put the own.er of the e t blishment on notice that the business will e subject to inspections ; and must place a 1 m' t on the time, place and scope of the inspe t'ons . New York v. Burger, su ra, u held a New York statute authorizing warrantless junkyard inspect on as satisfying those criteria, and its discussion of that is wo 'th examining. 96 L.Ed. 2d 617-620. The regulatory scheme t w ich the HCC is subject as a private club (and holder of a state ot le club permit) in chapters 310 and 404 of the Code, and section 3 OA.414- .415 of state law, clearly are based on a substantial g ve nmental interest in liquor and its control . It seems also appa en that warrantless inspections are necessary to further the eff ct veness of the regulatory effort. The Court cites to U. S . v. B' sw 11 , 406 U.S . 311 , 92 S .Ct. 1593 , 32 L.Ed. 2d 87 (1972) , which s i : " (I)f inspection is t be effective and serve as a credible deterren , unannounced, even frequent , inspections are ess n ial . In this context, the prerequisite of a w r ant could easily frustrate inspection . . . ' 96 L.Ed.2d at 618-619 . Finally, the various ord'n nces and statutes clearly inform the licenseholder that it is u ject to inspection for law enforce- ment purposes , and not motiva e by the whim or caprice of city officials . Also the time, pl c and scope of inspections are -9- limited to times while "open o the public" (section 310.12) ; "while being used or occupied for an rpose" (section 310.12) ; "during reasonable hours" (section 34 A. 14) . In addition this particular inspection took place unannou ce , but during a time when the club was not inconvenienced in the le st and was open for the business or club purposes it normally pur ue . XC PTIONS I . Findings of Fact : 1. Finding No . 1 is err e us in that under the evidence the facilities were also v ilable for banquet or dinner rental and not restricte t members or guests . 2 . Finding iVo . 2 is erro e us in that HCC must have an on-sale license if it int n s to sell intoxicating liquor to members of the e eral public , members or their �uests . 3 . Finding No . 10 is err n ous in that the lieutenant knew the HCC was a privat lub , but believed that it was proper for him to ent r for the purposes of inspec- tion and investigation. 4. The ALJ has omitted t ke additional findings proper under the evidence (a� That Lt. Winger as not requested to show identification or pr ve membership . (b) That no signs or ot er indications limited their entry or seati g t the bar . (c) That the bartend r erved them two beers , took cash, made chan e ith the assistance of the club manager, an r turned their change . (d) That there was n s gn or indication on the bottles indicating t ei availability only to members . -10- (e) That the barten e thought Winger and friend were part of a dinn r party just ended, for which she was serving dri k and selling alcoholic beverages for ticke s (which had been purchased for cas� by those tt nding the dinner party) . (f) That a cash ba h d been operated for the dinner party. II . Conclusions of Law: 1 . Conclusion No . 4 is er oneous in that, for the reasons discussed above, the en r of Lt . Winger into the HCC was a proper licensing entr 'nto the licensed premises during open hours for the purp s of making an inspection and investigation for viola i ns directly related to the licenses held and activ t es therein. The issue here is not whether to charge c iminal offense, but whether to take disciplinary a ti ns against the HCC licenses . III. Supplementary Findings of Fact : 1. Finding No . 15 is rr neous insofar as it implies that the police officer too s me action to create an impression or make a pretense tha was a member or guest . He simply walked in, sat down an o dered a beer , paid for it and was served, with the a s ' stance of both the bartender and manager. 2 . Finding No . 18 sho T make clear that the bartender' s supervisor was in fact t e manager of the club, who certainly was not inexperienced. he licensee did not call the manager as a witness despite er presence at the hearing. IV. Supplementary Conclus 'on : 1. Conclusion No . 6 s learly erroneous in that the evidence given by the bartende s owed that the HCC had allowed or set up a cash bar for t sale of alcoholic beverages at an earlier dinner party, a d the sale to Winger was not an isolated occurrence. . � . -11- CONCLUSION There is no doubt that h HCC bartender, with the assistance and knowledge of the HCC man g r, sold alcoholic beverages to Winger . There is also no doubt h t HCC sold or permitted the sale of alcoholic beverages to those a tending a previous dinner or banquet at HCC. The HCC manager' s p e ence at the hearing and failure to testify compels adverse infe e ces to be drawn about both above transactions . There is no doubt that i ger just walked in openly and without a� covert action. There w s o concealment of surreptitious action. He say down at the bar and rd red two beers . Any person, whether police officer or not, coul h ve done the same . (And while counsel for HCC and the City agree ha the presence of Winger' s friend can be ignored and is not a piv ta factor, it is worth noting that a civilian could do and did t e ame as Winger - just walk in and sit down and order and be serve . ) Among the adverse infe e es to be drawn from the manager' s failure to testify could we l e the fact that the previous dinner or banquet on the premises as not for members or guests , that it was a group renting the pre i es for a wedding or other function, and that that is precisely h reason why Winger or any other member of the public could have th n walked in. Clearly there was no expectation of privacy by H C in the areas of its premises into which Win,ger walked and sat d wn to buy his beer . Had the manager testified, it would have u o btedly have been made clear that . � �- �'��. , -12- certain areas of the club have g eater or lesser de�ress of exclusivity, and hence differi g expectations or privacy. RE 0 NDATION The evidence does support t e imposition of a reasonable suspension. It appears that t e licensee HCC had adopted in the past questionable practices in d aling with alcoholic beverages for dinners and banquets on th remises . It has not presented any evidence, however, of chan e or reforms to eliminate those practices which violate state n local liquor laws . This failure should be taken into account. C unsel for the City does not as a practice make specific recomme d tions to the Administrative Law Judge or the City Council , but d es however attempt to indicate what level of severity of disc'p ine could be supported by the evidence. There is no specifi rdinance which recommends penal- ties for violations by private c ubs , although a private club license, as a kind of liquor 1 c nse, can logically be eompared for penalty imposition to an o - ale intoxicating liquor establish- ment. Counsel believes that a n outer limit a reasonable suspen- sion in this matter should not e ceed six consecutive days in . -13- length, but that lesser penal ie are certainly within the discretion of the City Council . Submitted this �7� d y of February, 1989 . DWARD P. STARR ity Attorney �� HILIP . BYRNE ssistant City Attorney 647 City Hall and Court House Saint Paul , MN. 55102 (612)298-5121 Attny. Reg. No . 13961 AME D D FINDINGS A ONCLUSIONS Findings : 1. Licensee is a private ass ciation, whose facilities are available only to fee-pay ng members and their guests . On Jul 15, 1988 , it allo ed its remises to be used for a inner or ban uet whic ma not have eeri restricte to members or t eir uest . 2 . Licensee does not have an i not re uired to have an on- sa e intoxicatin i uor ic nse so on as it does not sel i uor to ari one, wh th r members , uests or the genera pu ic . 10�. The lieutenant knew he sk �.� xe� e�.�e� �k.e g�exi�ses beeaxse �.e was not a member of th' s rivate club , but believed it was ro er for him to ent � or lawful ur oses o ins ec- tion and investi atiori un er the licerisin laws . new. Lt. Winger was not requ st d to show identification or prove membership either to enter the club or purchase a drink. new. No signs or other indica i .ns limited the officer' s entry or his seating at the ba . new. The bartender served two b ers , took their cash, made change with the help of h HCC manager, and returned their change. new. There was no sign at the b r or on the bottles that this was available only for m m ers or guests . new. The bartender thought th officer and friend were a part of a dinner �arty just e de , for which she had been servin� drinks and/or be r y redeeming tickets purchased for cash. new. A cash bar had been oper te earlier on the premises in connection with the dinn r arty. Conclusions : 4. That the evidence relating to the observations of the officers after their entry into Lic ns e ' s premises should xe� be considered in this proceed'ng as a ro er civil entr into the licen;sed remises for he ur ose o lookin or violations irect re ate to t e i en es o at t at renaises . Supplernentary Findings : 15 . She did not know members by sight, and had not been directed or trained to ask whethe rsons were or were not members or- g-uests . Whi e there e no other patrons in the bar, s�e t�i.ou �it t- z�e were a t of an earlier dinner art . 18 . She consequently consult d her supervisor , the mana er of the club, who found a wa o accept and proPer y account o��cash aid for t eers . Supplementary Conclusion: 6 . That the t�a�a�e��e�.a� sa e as a �se�a�e�. mistake caused at least in art b the fact of the earlier cash (ticket bar or t e inner art or n et . ��'°•;;� CITY OF SAINT PAUL � y�: OFFICE OF THE CITY ATTORNEY �� uunnw ,; `?r u�l 1�.1111 ^? ';• EDWARD P. STARR, CITY ATTORNEY '"'uu,�,'°,�m�''�` 647 City Nall, Saint Paul, Minnesota 55102 GEORGE LATIMER 612-298-5121 MAYOR MEMORANDUM REC�IVED �EB 2 319s9 TO: Al Olson �'�.� �� FROM: Phil Byrne'�j �i DATE: February 22, 1989 RE: Hillcrest Country C1 b Please make the attached a ar of your file on the above license. PBB:paw attached . - ,�"` �,� dj�.�,�"�: MAUN, GREEN, HAYES, IM N, .�OHANNESON AND BREHL ATTO N YS AT LAW SAINT PAUL OFFICE MINNEAPOLIS OFFICE 2300 WORLD TRADE CENTER 520 NORTHLAND EXECUTIVE OFFICE CENTER 30 EAST 7TH STREET 3500 WEST 80TH STREET SAINT PAUL,MINNESOTA 55101-4904 MINNEAPOLIS,MINNESOTA 5 5431-4504 TELEPHONE:612-229-2900 TELEPHONE:612-B35-9550 7ELECOPIER:612-229-2800 TE�ECOPIER:612-835-3463 December 2�� 1 9 H H �'^ , REPLY TO: St . r aul I c r` i . � � ; �, ... .t .�..� �- . �_ u . . ,�VEt� _ - ` � Howard L . Ka�h�' ' • � ��c z � �sss Administrat� �•- " - "" ��E __. �_ Office of Aa � ` � Fifth Floor, ... . � , . .. _ � 310 Fourth A� ` � Minneapolis, ,,.... / � • � �� l� . Re: City of °'"' ° °� �� ,, • � Dear Judge Kai, `"""� . � ... . , Enclosed i '.ub' s Trial Brief an� �� 1 to .,. : � � Motion to Suppi" �ove matter. � LDT:vs � ... Enclosure cc : Philip B. Byrna , .;. , . _ _. STATE I F INN RECEIVED ESOTA CITY �F ST. PAUL ------------------------------ � �g 2 319�9 city of st. Pau1, CITY CL'ERl� Plaintiff, TRIAL BRIEF AND RESPONSE TO MEMORANDUM IN vs. OPPOSITION TO MOTION TO SIIPPRESS EVIDENCE Hillcrest Country Club, Inc. Defendant. ----------------------------- - This Memorandum is submi te as both the Trial Brief and Memorandum in Response t the City's Opposition to Hillcrest's Motion to Suppr ss Evidence. This memorandum will begin with a descri i n of the pertinent facts presented at the hearing h ld on October 20, 1988. The hearing was adjourned to allo he City of St. Paul ("City") to amend its Notice of Heari g. After the Amended Notice of Hearing was served, the City n Hillcrest Country Club, Inc. ("HCC") agreed that this ma te should be submitted to the Court on trial briefs with ut any further evidence being introduced. Prior to the hearing, H C served and filed a motion to suppress all of the City' vidence. HCC's Motion to Suppress was based upon the 11 eged unlawful search of HCC's premises conducted by city p �i e. In order to expeditiously resolve both the evidentiar ' 'ssues and the City's charges against HCC, the parties ag e d that the Court should hear all evidence and subsequent y decide whether such evidence . �� " ��''C')'L .. • 1 . . � � should be suppressed. Thus, he hearing, the court heard evidence and arguments regard'hg both the motion to suppress evidence and the City's char es against HCC. The City has since served and filed its Me o andum in Opposition to HCC's motion to suppress evidence. In order to facilitate e dual purposes of this brief, the description of facts i cl des all facts pertinent to HCC's motion to suppress as w 11 as facts surrounding the violations alleged in the C'ty s Amended Notice of Hearing. HCC's arguments regarding h evidentiary issues and the facts surrounding the Ci y' allegations, however, are separately discussed. FA TS HCC is a private golf o ntry club located at 2200 East Larpenteur Avenue, St. Paul, innesota. The club facilities include an eighteen-hole o f course, swimming pool, and clubhouse. These facilit' s are available for use by only club members and their e s, and the general public is prohibited from entering u o club property. In order to accommo �t its members, HCC possesses a state bottle club licen ' pursuant to Minnesota Statutes Section 340A.414 . HCC do � s not possess any liquor licenses issued by the City of 't. Paul. The state bottle club license, however, indepen e ly authorizes HCC to "permit the consumption and displa f intoxicating liquor on the premises. " M.S.A. Secti 48A.414, Subd. 3. -2- . .. . . . : i 1 i At a roximatel 7:45 in. on Frida Jul 1 5 1988 the PP Y P , Y. Y . ► St. Paul Police Departme received an anonymous call alleging that HCC was selli �g alcoholic beverages without a license. In response, the � o ice officer in charge decided to write a report regarding th anonymous call and, if later deemed necessary, conduct fu t er investigation the following Monday. At approximately 8 15 p.m. on the same evening, the police department received econd anonymous call alleging the sale of an alcoholic e erage. The anonymous caller implied immediate action sh ul be taken, inquiring "what was being done about it?" The p lice department does not know the identity of the anon ou caller, but admitted at the hearing that one person is be ieved to have made both calls. The City does not dispute t at if probable cause for the search of HCC's premises i eemed necessary, such probable cause must be found in the t o anonymous calls. The police did not even attempt to n ependently confirm whether HCC possessed a license to sel a coholic beverages. Rather than attempt t onfirm any of the facts alleged by the anonymous caller, t e City decided to forego the probable necessity of a arch warrant and immediately dispatched an undercover o ice officer. The City has not disclosed why immediate �c ion was necessary. Thus, the police department direc e Lieutenant Donald S. Winger -3- . ' ("Winger")� to don plain cl t ing and covertly enter HCC to attempt to purchase an alc o ic beverage. At 8: 30 p.m. , Winger arrived in HCC's �a king lot and entered the clubhouse. Winger is not ' c ub member. Winger testified that he was personally aware th t only club members and their guests are authorized t enter upon HCC premises. Notwithstanding Winger's pe so al knowledge that he was not authorized to enter upon H C property, Winger entered the clubhouse and proceeded tow rd the lounge area. At no time during Winger's presence up n CC property did Winger advise anyone of his identity as olice officer or that he was neither a member, nor a m mb r's guest. In fact, Winger sought to create the impres io that he was a club member or guest authorized to be in h clubhouse. Since Winger did not ever disclose that he as a police officer, HCC clearly did not consent to Winger's se rch. After entering the lo g , Winger proceeded to the bar area. He noted that the b r setup differed from the usual commercial bar as there w s no cash register or any cash whatsoever at the HCC bar a ea. Winger ordered a beer. After the beer had alrea y been opened and provided to Winger, he advised the bar en er that he wished to pay with cash. The bartender obvi us y was not prepared to accept � Although Winger was ac o anied by a friend who was neither a police officer nor club me e , HCC and the City have agreed that the friend's presence is n t necessary to the discussion in the parties' respective briefs. -4- . . i � . . � , '. cash for the beer, and the r ender was forced to briefly leave the bar area to obtain ha ge. The bartender testified that she mistakenly believed i ger to be a participant of an organization authorized to u e CC facilities that day. She further testified that Wing ould not have been served a beer had she not believed Wi ger to be a member of the organization. Winger did n t advise the bartender that he intended to pay cash for th n of beer until the beer had already been opened and gi e to Winger. Winger did not observe any other transacti s involving alcoholic beverages. The bartender who serv d inger had worked for HCC only one day at the time of h incident in question. She testified that the bar are s not equipped to make change and is not intended to be o erated as a "cash bar. " She testified that only members o members' guests are authorized to obtain an alcoholic be e age. In order for members or their guests to obtain an a coholic or other beverage, the member or guest must ro ide the bartender with the membership number of the mber whose monthly bill will reflect HCC's charge for ispensing any beverage. This charge is not a sale pri e for a purchase of alcohol, but reflects HCC's charges o the member for dispensing the member's own alcohol or o h r beverage to the member or his guest. The charge is ess r�t ally a service charge. Although the above- s ribed procedure applies to day- to-day requests for alco o ic or other beverages from club -5- . . . ' . members, an entirely differ n procedure applies where an organization holds a functi n at HCC. It is not disputed that on the evening of t e incident in question, HCC's facilities were leased to a p ivate organization which had been elected a club member a d hereby authorized to use club facilities. In order to omply with HCC's statutory obligations regarding its st te bottle club license, HCC must ensure that only HCC membe s consume their own alcoholic beverages. Accordingly, whe a local organization which will � be using HCC facilities made a member, such member organization provides HCC wi h all alcoholic beverages to be consumed by organization par ic'pants. Tickets are then sold by the organization to part'ci ants or included in the cost of the function, and the tic et are given to the "bartender" in exchange for alcoholic o other beverages which are actually owned by the memb r organization, but served by HCC's bartender. Through t is system, HCC ensures that the alcoholic beverages, which ar provided and owned by the member organization, are s rved only to such member organization's participants. � As a practical matter, this system also obviates the st t ory requirement of attaching name labels on bottles, sin e all alcoholic beverages being served are owned by the sam rganization which is the only organization allowed to be n the bar at the time of such exchanges and is the only s r e of the tickets necessary to obtain an alcoholic beverage -6- . . . . i AR NT The remaining portion � f HCC's brief includes HCC's response to the City's Mem �ra dum in Opposition to HCC's i Motion to Suppress Evidence, �fo lowed by a discussion of the City's allegations against H . I. ALL EVIDENCE AGAINBT HC 8 OULD BE SOPPRESSED BECAUSE OBTAINED THROUGH AN IIN TPF' I� SEARCH AND SEIZORE. HCC's original Memoran um in Support of its Motion to Suppress evidence amply dem ns rates that the City's search was unlawful because HCC di ot consent to the search, the City failed to obtain the ne e sary search warrant, and there was no probable cause to pport the search. In its Memorandum in Opposition, t e City does not dispute that HCC did not consent to the se rch, no search warrant was obtained, or that probable au e did not exist at the time of the search. Rather, the Ci y mistakenly alleges that no search warrant was necessar ecause either HCC does not have a reasonable expectation f privacy or the search should somehow be deemed an "inspe t on" authorized by statutes. A. HCC's Club Facil t'es are Protected From the T e of Search Condu te b Win er Because HCC Has a Reasonable Ex e t ion of Privac Within the Facilities. The City's first arg me t appears to be based upon the plain view doctrine. It is fundamental, however, that the plain view doctrine does o apply to observations made in places in which the office sserting plain view has no right -7- I �///�_//�") � / ' I V / / � / . to enter, e.g. United States . Anderson, 552 F.2d 1296 (8th Cir. 1977) . The plain view do trine does not apply to the facts of the instant case ec use the very police officer claiming plain view testifi d at the hearing that he was personally aware that HCC s premises are restricted to members only. The plain v'ew doctrine simply cannot apply here because Winger was not au horized to enter HCC premises and actually knew that he a not authorized to enter HCC premises. The City also argue hat HCC has no reasonable expectation of privacy beca se several potential exclusionary measures were not exercised b HCC. Thus, the City provides a list of ineasures which ou d be taken by HCC to exclude entry by nonmembers. Sinc H C has not imposed all possible exclusionary measures, t e City expects this Court to conclude that HCC does no ' h ve a reasonable expectation of privacy. This is simply 1 i rous. HCC does not forfeit its reasonable expectation o �I rivacy by refusing to impose � exclusionary measures w �i are not necessary. The � determination whether a p r on has a reasonable expectation I of privacy does not depen pon the quality of locks on his � doors. I � HCC has never had a �p blem with nonmembers attempting to gain entry to club fali ities. It is well-known by the � public that HCC is avail 'bl for use by members only. Even Winger testified that he 1�a aware that HCC is available for -8- . • I . I members only and nonmembers � a e not allowed entry. This public knowledge in and of 'ts lf has effectively prevented any problem with nonmembers t empting to gain entry to club facilities. HCC does not su � f r reduced privacy rights as a result of its decision to not institute unnecessary exclusionary measures. HCC h taken all measures which it has determined necessary to r serve its members only private status. The reasonablen ss of these measures is not determined by what is possib e but by what is necessary. B. Win er's Search f HCC Pro ert and Affirmative Solicitation of a r scribed Sale is not Authorized b Statutes A t orizin Merel Warrantless Inspections. The City�s second arg e t to avoid the necessity of a search warrant authorizing in er's conduct is that no search warrant was necessary as esult of the City's right to "inspect" HCC premises u suant to Minnesota Statutes Section 340A.414, Subd. 7 nd various city ordinances which also authorize limited ' in pections. " These statutes, however, authorize limite "inspections, " not undercover solicitation of proscribe onduct. The City mistakenly argues that the statutory u hority to "inspect" encompasses virtually any covert sear h and seizure scheme imaginable. Although the ordinances a tatute relied upon by the City certainly authorize the Ci y, subject to several limitations, to "inspect, " the City has fa'led to provide any authority to -- -9- support a finding that W 'n er's undercover solicitation constitutes the type of inere " 'nspection" so authorized. Each and every statuto uthority cited by the City to support the search conduct 'd by Winger authorize only an inspection and/or examinati n f HCC premises under limited circumstances. The City h s failed to point to a single statutory authority which e tends this authorization to Winger's conduct. Even if h statutory authority cited by the City can somehow be de me to authorize Winger's entry onto HCC property, such au hority certainly cannot be extended to the conduct in hi h Winger engaged. Winger did not simply enter and inspe t or observe, but affirmatively solicited the sale of an a co olic beverage. Had Winger's "inspection" been limited merely entering HCC and observing a proscribed sale to another, HCC does not dispute that evidence of such sale wo ld be authorized pursuant to the "inspection" statutes c'te by the City. In the instant case, however, Winger perso al y solicited the only observed sale of an alcoholic bever g . Winger's solicitation far exceeds the type of "inspec i n" authorized by the statutes cited in the City's memorand m. The City cannot use its a thority to conduct warrantless inspections as a ruse for e fe tively conducting warrantless search and seizure operatio s See, e.g. South Dakota v. Opperman, 428 U.S. 364, 9 .Ct. 3092, 49 L.Ed. 2d 1000 (1976) ; United States v. w on, 487 F.2d 468 (8th Cir. -10- . . i • � i 1973) . Winger knew as he ;e tered HCC premises that he intended upon entry to do flr more than simply conduct an "inspection" of HCC's facilit'e . Rather, Winger intended to affirmatively solicit a pr sc ibed sale of an alcoholic beverage. The City canno ow be allowed to bootstrap warrantless searches with its authority to conduct warrantless "inspections" of re lated businesses. The cases cited by the C ty similarly fail to provide any authority for Winger's n uct. Every case cited by the City involves facts in whic t e authorized "inspection" was limited to mere observations, ' .e. , inspection. The City has failed to provide any cas i which a court extended the definition of a state's "in p tion" authority to undercover solicitation of proscribed co duct. Although HCC does not challenge Winger's limited st tutory authority to enter HCC for the purpose of cond t ng an inspection limited to observations, this limited a thority cannot be extended to Winger's affirmative solici a ion of proscribed sales without the constitutional protect on discussed in each case cited by the City being completel viscerated. The City places great re iance upon a recent opinion of United States Supreme Cou , New York v. Burger, U.S. , 107 S.Ct. 2636, 96 . .2d 601 (1987) .� The Burger opinion, however, has no a plication to the instant case � A artial co p py of th s pinion is attached as an exhibit to the City's brief. -11- . . � � i � i i i because the challenged "inspe �t'on" in Burger involved only observations without any 'affirmative solicitation of proscribed conduct. Even i ur er were applicable, the instant facts fail to meet th � t st set forth in Burger. The Burger opinion establishes t at a warrantless inspection is reasonable only if that insp ct on meets the following three criteria: 1. "There must e a 'substantial' government interest that i fo s the regulatory scheme pursuant to which e inspection is made;" 96 L.Ed.2d at 614. 2 . "The warrantle s inspection must be 'necessary to further the reg la ory scheme' ;" Id. 3 . "'The statute' ; i spection program, in terms of the certainty and r gularity of its application, must provide a con �ti utionally adequate substitute for a warrant. ' �I other words, the regulatory statute must perf �m the two basic functions of a warrant: it m st advise the owner of the commercial premise hat the search is being made pursuant to the a and has a properly defined scope, and it mu t limit the discretion of the inspecting offic rs (citations omitted) . To erform this firs ' unction the statute must be 'sufficientl com re ensive and defined that the owner of commerc'al ro ert cannot hel but be aware his ro er will be sub'ect to eriodic ins ections under tak n for s ecific ur oses. ' In addition in def ni how a statute limits the discretion of the 'n ectors we have observed that it must be 'caref 1 limited in time lace and scope. "' Id. The "ins ection" conduct ed I Win er fails to meet both the P Y g second and third requiremen �s et forth above. i Winger's "inspection" � c nnot be deemed "necessary to further the regulatory sch �m . " Even if the City actually believed the anonymous ca l 's accusations, the City has -12- . - i d' � �'�J . " failed to explain why it wal ecessary for the police to conduct a warrantless "insp 'c ion" rather than request a warrant. In fact, the City h d no reason to believe the "inspection" would be jeopar �z d by waiting until a warrant was first obtained. Burger r quires that the warrantless inspection be necessary, not m rely convenient. Aside from summarily concluding that t e warrantless "inspection" was necessary, the City has comp et ly failed to explain why the "inspection" was necessarily e ired to be conducted without first obtaining a warrant. The "inspection" also f ils to satisfy the third requirement set forth in t e Bur er test because Winger's "inspection" was not in any ay limited in scope. The City's interpretation of the s t tory authorities allegedly authorizing Winger's activi ie would impose no limitations on the scope of conduct in hi h police officers may engage and later label as authori e "inspections. " The City's interpretation of the proper y efined scope of "inspections" authorized by these statute pparently includes everything from conventional observati n ype inspections conducted by regulatory inspectors and pr c ded by notice to the licensee, to undercover police sting o erations aimed at a business which happens to be subje t to an "inspection" statute. Unless the statutes cited y the City are interpreted consistent with HCC's posit'on the statutes themselves fail to comply with the requirem t set forth in Burger. -13- . . � ' ' I i i Based upon the foregoin I, it is abundantl clear that Y evidence derived through the C ty's unauthorized search of HCC premises must be suppres �ed The City has not disputed that the two anonymous tips ,' u on which the City acted in conducting its warrantless � s arch do not provide the necessary probable cause to s p ort Winger's search. Rather, the City argues that probable c use was not necessary because either HCC did not have a r as nable expectation of privacy or Winger's warrantless sear hould be deemed an authorized warrantless "inspection. " oth arguments are wholly unsupportable. HCC has a r as nable expectation of privacy because HCC has taken those me sures it has found necessary to protect its exclusive ta us as a private club. In addition, not a single statu e or case cited by the City has even implied that the "insp t ons" authorized by regulatory statutes include the type o u dercover solicitation conduct in which Winger engaged. There would have been o earing in this matter without the evidence produced thr u h Winger's unlawful search. Accordingly, FiCC would not h ve provided any testimony in defense of a nonexistent co p aint. Since all testimony at the hearing resulted from a ' u lawful search conducted by the City, all evidence must be u pressed and, consequently, the Amended Complaint against H C ismissed. -14- ''r . � 9`f�.�"� . . i i II. NO SANCTIONS SHOIILD B � MPOSED AGAINST HCC AS A RESIILT OF THE VIOLATI N ALLEGED BY THE CITY. In the unlikely eve 't that the Court somehow deems Winger's actions proper an ' r fuses to suppress all evidence, the following discussion a d esses the City's allegations in the Amended Notice of Hear'ng HCC does not dispute t at Winger somehow purchased an alcoholic beverage in c ange for cash from an HCC "bartender" in the HCC 1 bhouse. In determining what penalty, if any, should be i posed, HCC simply requests that the following facts be con id red. HCC, as a private golf ountry club, has no interest in selling alcoholic beverag s o the public. There should be little doubt that the sal t Winger would not have occurred had Winger advised HCC tha e was neither a club member, nor a club member's guest. e the years, HCC has strived to create and preserve the f vo able image of an exclusive golf country club. This image is indispensable to the membership of HCC. Among HCC's most m ortant features is the exclusive nature of HCC. This "m mbers only" feature would be destroyed if HCC made a p actice of providing its goods and/or services to non-me e s. Since HCC has no interest in " repeating its mistake o elling an alcoholic beverage, imposition of any sanctio w 11 serve no purpose. That HCC certainly e not make a practice of selling alcoholic beverages for a h is evidenced by HCC's lounge -15- area. Winger testified t at there is neither a cash register in the HCC lounge area, o any other means by which the "bartender" is capable o aking change. In fact, Winger testified that the HCC b 'r nder with whom he dealt had to briefly leave the lounge ar a in order to make change. The lack of any capability to �c ept or return cash in the lounge area clearly evidences � H C's practice of not selling alcoholic beverages. HCC admits that Wing I' transaction proves HCC's system is not fool-proof. W'ng r's purchase of an alcoholic beverage for cash, howeve , resulted from a very unique set of circumstances. Winger re ested to be served an alcoholic beverage at approximately �h same time a member organization had terminated its sales f ickets which could be exchanged for drinks. As a result, ' t e HCC bartender mistakenly, but reasonably, assumed tha Winger was a member of the organization and had narr wl missed the last opportunity to purchase a ticket. Furth re, the HCC bartender had worked at HCC only one day nd was probably not completely comfortable with all the Il�u ique restrictions applicable to the service of alcoholic b verages at HCC. Even if the bartender had questioned �'he her Winger was with the member organization, the can of b r had already been opened and given to Winger before Wi e offered to pay with cash. The new bartender was therefo hrust into the awkward position of either demanding retur f the can of beer or accepting -16- the cash. Finally, the actual s le to Winger was consummated only through a separate HCC e ployee who never even saw Winger. Both the HCC bartend nd Winger testified that the bartender left the lounge are ' r a brief period of time in order to determine what to d a out Winger's proffer of cash and, if accepted, to attempt t obtain change. This other employee relied upon the HCC a tender to identify the person requesting the alcoholic bev r ge as a member of the group who is simply paying to be e ed his own liquor. Based on this inaccurate assumptio , the proscribed sale was consummated and change was i en to Winger. This unlikely sequence of events is not e s'ly duplicated, and HCC should not be sanctioned for a sal ' sulting from this unfortunate series of coincidences. Finally, the Court sho l note that HCC has never been charged with a violation f any statute or ordinance regarding the unauthorize ale of alcoholic beverages. Indeed, HCC has never face disciplinary action regarding any of its licenses. Thi mirable record of HCC further demonstrates that HCC is n t ikely to repeat the infraction involved, and imposition o s nctions is not warranted. C N LUSION Based upon the fo eg ing, Hillcrest Country Club respectfully requests thi ourt to find the City's search and seizure to be wholl 'mproper, suppress all evidence obtained thereby, and is iss the allegations involved -17- herein. In the alternati e, Hillcrest Country Club requests this Court to determin that the unique circumstances involved herein, accomp i d by Hillcrest Country Club's admirable record as a p ivate country club support a determination that no san ti ns should be imposed against any of the licenses of Hillcr st Country Club. Dated: J/-�� 19 8. MAUN, GREEN, HAYES, SIMON, JOHANNESON AND BREHL By / � y D. Thomas (#170252) 23 World Trade Center 30 East 7th Street St. Paul, Minnesota 55101-2900 (612) 229-2900 Attorney for Defendant Hillcrest Country Club 12/20/88,4,4256 -18- � � �''"� � �,.��••••: li CITY OF SAINT PAUL � OFFICE OF THE CITY ATTORNEY � �E i '' ^ EDWARD P. STARR CITY ATTORNEY ry' , ��R`�`"�� 647 Ciry Hall, Saint Paul, Minnesota 55102 GEORGE LATIMER �612-298-St2t MAYOR R��'V� � x �9��! 21 1�88 : November 18 , 1988 q�'�j� ry � � Howard L. Kaibel Administrative Law Judge Office of Administrative H a ings " Fifth Floor, Flour F.xchang uilding 310 Fourth Avenue South i�7inneapolis , MN. 55415 RE : Hillcrest Country Clu Dear Jud�;e Kaibel : I enclose my memorandum in re ponse to the motion to suppress by Mr. Thomas made on October 20 , 1988 . I have served it far enough in advance of the next hea in date, December 9 , 1988 , so that perhans we could wrap thin s p without further briefing at that hearin�. Ver t u y yours , t) � PHILIP B. BYRNE b� a'�' Assistant City Attorney Enc . cc : Lonny D. Thomas Attorney for the Lice se ��tV�► � �ov 2 � ��ss Affidavit of Servlce By Mall �� tate of �ir�r�e�ota�, ' �� Counti o Rarlse � f.............. ..........y....................-------��---....... 88. ..�. _.............. JOANNE G. CLFP�ENTS , bein xst dul s rn d .......................................•-••.........-••--......_ ................_.....__............._....._... N vember 18 • ... �....°�-.....-- that nn...............4.......---•• , 1�..88....- S th atta 7zed�emor clum 11� C�j�T�ds�'��ec�nand says t Q TZO t 1 OTl t O �llpD T 2 S S�� , ---•-•__3ie g�rv � .........................___.._.:..�._.„._..„..._._._... ... . .........................••-•........................._::.::.• ...upon......Mrw Lo ny 1). T�'iomas'�' _ ._..__._... ................................_......... .. .......:......._..... _..... ......_....._......_....._...... _............._ atrornc�......... f�r ....................�?�..�..J.�rest__CountrX C U ..b� lacin ................. _ .__...__....._.._...._. .._.._...--•-- a• Erue �zncl carrect cvpJ thereof in an envelppe addressed as fol ws P'Ir. Lonny D Thomas��w�� p � Attorney at La�� 332 Hamm Building 408 St . Peter Street (tuhich is the Zast lcn.ozvn a�dres�s o said attorne � � St . Pau , , . 55102 f y) positing t e sa e, with po a e ai ' ' States naails at........,�.�111t...Ya.Ul P�' P i Lteil ......_.._. ......;-•-..... Y , Min,ne8o SzcbscriLed and szcorn to beforc me tlics......��:,...�.�.�� ...... da o ..... N.c�u��b..�r. 88 ............ _ . .... .... _.....1.�....-��,Q,�d,�....J�.. ........ .., 1 J............... ... ••• . ... .. .......••-- V ,��. .... r 80.VA J. �' �orW+r ,� WCOI�M1.OfP SAP 8,199L . tvvy� � _ , i �� .� �� ,� > �� tV 0 V '! � �� ; STATE i0 MINNESOTA ��T�f � OFFICE OF AP I ISTRATIVE HEARINGS ��; """' No . - 101-2750-6 : — — — — — — — — — — — — — — — — — — In the Matter of the Private C u MEMORANDUM IN OPPOSITION and other Licenses of the TO MOTION TO SUPPRESS Hillcrest Country Club , Inc . — — — — — — — — — — — — — — — — — — ACTS The facts upon w�ich thi m morandum is based are those received in the hearing before the Adm'ni trative Law Judge on October 20 , 1988. Petitioner does not co cu in the statement of facts included by resnondent in its motion t s ppress evidence, since the record at this point does not have a y vidence covering certain points raised in the motion. Other a ters stated as facts therein are conclusions of law or charact r' zations not supported by the evidence in the record. The facts in evidence do s ow that Lt. Winger and his friend walked into the Hillcrest Co t y Club (hereafter, "HCC") �aithout being requested to show iden if cation or proof of inembership ; that no signs limiting the premis s o members only were observed; that no nerson or sign-in desk ap ea ed to require permission for entry; that they entered and sat do t the bar, ordered two beers , paid in cash, and were given chan e; and that there were no labels on the bar bottles of alcoholiclbe erages indicating they were the property of inembers or othe is unavailable for public sale. While Lt. Winger knew it was a embers-only club , the evidence is . . i , r -2- that any person (police or ot erwise) could have walked in and been served on that occasion. h bartender testified that she was not able to say why she so d the beer, and accepted cash for it ; but did at one point say s e thought Lt. Winger and friend were part of the earlier party. he stated that at an earlier party that evening persons purch s d tickets for drinks , and that she had served them alcoholic e erages in exchange for a ticket . She did not know why she d d not ask Lt . Winger for a ticket , but took cash instead. There a no evidence that she asked for any identification or proof o m mbership , and no evidence of signs in the bar area restricti g isplay and consumption to members . The bartender thought or ss ed the persons at the party were members and family or gue ts a fact which does not affect the illegality of the sale. t s unlawful to sell intoxicating liquor to anyone without p oper license, whether they be members , guests or public. Howeve , ' t is a fair inference for the fact- finder, on the evidence i t e record, to find that non-member and non-guest persons att n d the party. If the practice was for members to sign a chi o tab for consumption of alcohol by them and their guests , th r is no reason to have a cash bar run with ticket sales unless h party was attended by some outside group . Such a fact adds e'ght to the reasonable inference that any member of the public o ld have walked into the HCC on that occasion and purchased a r nk as did Lt. tiJinger and friend. _ . . . -3- AR UMENT The Hillcrest Country Cl b HCC) has no reasonable expectation of privacy in the areas of it p emises in which Lt . Winger and his friend purchased beer on July 15 , 1988 . This conclusion is based on two grounds : l . Licensed establ s ents such as the HCC are subject to reasonable po ic and administrative inspections under the la s hich create and permit the licensed activity, a s' tuation clearly known to the licenseholder and a 1 licenseholders . 2 . As a factual ma t , the HCC did not restrict its bar or adjacent area o members only on that occasion, permitting any p rson access and the ability to purchase liquor. Section 310. 12 of the Sa'n Paul Legislative Code states : "Sec. 310. 12. Insp c ion of premises . The premises , facilitie , nlace, device or any- thing named in any i ense issued pursuant to any provision of t e Saint Paul Legisla- tive Code or other a shall at all times while apen to the p b ic or while being used or oc.cupied fo ny purpose be open also to inspection an examination by any police, fire, or h al h officer or any building inspector of the city, as well as the inspector. " This provision annlies to al 1 censes . Section 404. 09(a) o� the Saint Paul Legislative Code, co ering premises holding a private club license, provides : . , . -4- "Sec. 404. 09. Reg la ions ; prohibitions . (a) Ins ection. t shall be a violation of this chapter . or t e olders of such license to prevent entry b lice officers or the inspector when sai ntry i� for the purpose of inspection and h n said officers or insnector are on o f'cial duty. " It should be noted that the C holds a state bottle club permit as well . Minn. Stat. §340A.41 A, subd. 7 , provides that establishments holding a bo tl club permit are open to inspection by peace officer , ' . . . who may enter and insnect during reaso.nable hours . " The HCC holds a restau a license under chapter 331 of the Saint Paul Le¢islative Code, f which section 331 . 35 (a cogy of which is attached as Exhibi ) provides for inspection by �roper city officials of every na f any food establishment operating under the food licensin� c ap er. The bottle club permi u der Minn. Stat . §§340A.414- .415 and the private club license, ha ter 404 of the Code, are species of liquor licenses , allowing he consumption and display by members of the club of intoxicatin 1'quor on the club premises without holding an on-sale license Under Minnesota law, arrantless search and seizure pursuant to authority under a lice i g and regulation ordinance is lawful if done during regular bu in ss hours , reasonable and consistent with the duties of the �o ic officers and obligations of the . . �'��r�,� -5- licensee. State v. W biera a 235 N.t�7.2d 197 , 200 (Minn. 1975) . A part of the underlying ra i nale for the cases leading to the same or similar results is h t the acceptance of a license to operate the enterprise in q e tion is implied consent to reason- able supervision and inspecti n set forth in the licensing ordinances . See, e.g�. , P e v. White, 259 Cal . App . 2d 936 , 65 Cal . Rptr. 923 (1968) . In this case inspection authority are based on both state statut a d city ordinance . The United States Sup em Court has established an exception to the Fourth Amendment wa ra t requirement for administrative searches in "closely regul te " enterprises or businesses . The Court in New York v. Bur e , 82 U.S . , 107 S . Ct . 2636, 96 L.Ed. 2d 601 (1987) , s ar zed at 96 L.Ed. 2d 612 ff. the case law as it evolved from See v. Seattle, 387 U. S . 541 , 18 L.Ed. 2d 943 (1967) , to the present partial copy is attached as Exhibit B. It shouTd first be em ha ized that the case law has dealt with portions of cornmercia ( hat is , non-residential) premises that are not open to the p bl' c. If it is found in this case, as the evidence seems to requ re, that the areas entered by Lt . Winger were available and p to the public or any person who might walk in at that time en there is clearly no search and seizure issue. What is ob 'e able by a person of the general . . -6- public at a commercial establ' s ent is also observable by a police officer without a warr nt and the same result holds true even though the police pur�os i to inspect or investigate, a motive different than that of th general public . People v. Doty, 165 Cal . App. 3d 1060, 212 Ca . ptr, 81 (1985) . This is based on Katz v. United States , 389 . . 346 , $8 S ,Ct . 507 , 19 L.Ed. 2d 576 (1967) , which stated that "( )hat a person knowingly exposes to the public, even in his o h me or office, is not a subject of Fourth Amendment protectio ." The case law makes clear that even in commercial areas of bu 1 ings which are not open to the public, the expectation of pri a y is greatly diminished, partic- ularly where the activity that t kes place is "closely regulated. " The Court in New York v. Bur e , quotes from a 1978 case : "Certain industries have such � history o governmental oversig�t 'that no reasonable expectation of priv c could exist for a proprietor over the stock of such an enterpris . ' 96 L.Ed. 2d at 612 . The liquor industry is recognized as such 'a industry, Id. at 612 , and the state bottle club permit is in e d part of the Minnesota Liquor Act (Minn. Stat. ch. 340A) . T e St. Paul private club license is by its provisions in chapter 4 4 f the Code only required for establishments whieh do not ha e n on-sale license, but which nonetheless permit their membe �s o dis�lay and consume intoxicating liquor . The New Yorlc v. Bur e , C urt went on to hold that warrant- less insnections of commercial pr mises of pervasively regulated -�- businesses are reasonable if h ee criteria are met : 1. There must be s bstantial government interest underlyin t e regulatory ordinance or laws pursuant t w ich the inspection is made. 2 . The warrantles i spection must be necessary to furth r he regulatory purposes . 3 . The regulatory or inances must clearly put the owner of t e stablishment on noti�e that the business il be subject to inspec- tions ; and must pl ce a- limit on the time, place and scope of t e inspections . New York v. Burger, su ra, u h ld a New York statute authorizing warrantless junkyard inspect'o s as satisfying those criteria, and its discussion of that i orth examining. 96 L.Ed. 2d 617- 620 . The regulatory scheme hich the HCC is subject as a private club (and holder of a state bo tle club permit) in chapters 310 and 404 of the Code, and se ti ns 340A.414- .415 of state law, clearly are based on a subs an ial governme.ntal interest in liquor and its control . It seems ls apparent that warrantless inspec- tions are necessary to furt er the effectiveness of the regulatory effort . The Court cites to U.S . �. Biswell , 406 U.S . 311 , 92 S . Ct . 1593 , 32 L.Ed. 2d 87 ( 9 2) , which said: " (I)f inspection ' s to be effective and serve as a credible deterr n , unannounced, even frequenb , inspections are e s ntial . In this context , the prerequisite of w rrant could easily frustrate inspection . . . . ' 96 L.Ed. 2d at 618-619 . . �� -$- Finally, the various ordinanc s and statutes clearly inform the licenseholder that it is subj c to inspection for law enforcement purposes , and not motivated b he whim or caprice of city offi-. cials . Also the time , place n scope of inspections are limited to times while "open to the p b ic" (section 310 . 12) ; "while being used or occupied for a urpose" (section 310. 12) ;"during reasonable hours" (section 3 OA 414) . In addition this particular inspection took place unanno c d, but during a time when the club was not inconvenienced in th 1 ast and was open for the business or club purposes it normally pu sued. II S 'LMARY Any member of the gener 1 ublic could have walked into the Hillcrest Country Club at th t me Lt. Donald WinQer did, and indeed it is likely that non gu st non-members had attended the earlier party on the premise . That being so, the Fourth Amend- ment is inapplicable. In any event , warrantle s nvestigative inspections of licensed establishments involved with a eavily-regulated activity (liquor sales and/or consumption) aa v lid and lawful, when reasonable, both under federal and state case la . This was a clearly reasonable, minimally intrusive inspecti n onducted during regular business hours. -9- Petitioner requests that 'h respondent' s motion to suppress evidence be denied in all resp c s . Respectfully submitted th' s /�� day of ��'�/�iwUN•l. , 1988 . E WARD P. STARR C ty Attorney �, P ILIP B . BYRNE A sistant City Attorney 6 7 City Nall and Court House S int Paul , MN. 55102 ( 12)298-5121 A tny. Reg. No . 13961 . . i � �' �,IC NSES 3 331.39 Sec. 331.33. Submission of plans. Sec. 331.38. Samples testing. When a food establishment is hereafter c n- The director or his authorized agent may take structed or an existing food establishment is 1- samples of food necessary for the purpose of ana- tered, detailed plans or suitable drawings d lyzing and examining. Every person engaged in equipment spec�cations shall be submitted 1to �anufacturing,processing,storing or selling food the director or his authorized agent, and s h �thin the City of Saint Paul shall,upon request, plans and equipment specifications shall be p- furnish reasonable samples free of charge to the proved by the director or his authorized ag nt director or his authorized agent who shall issue a before such work is begun. Plans and specifi ' . receipt for the same. tions shall be in sufficient detail so that an ac u- (Code 1956, § 291.34) rate and complete appraisal can be made as �to compliance with the provisions of this chapter. I �c. 331.39. Embargo and detention. (Code 1956, § 291.29) (a) Retained The director or his authorized agent may attach a tag or issue a written notice of Sec. 331.34. Presence of food indicates in t embazgo or detention and thereby retain any food, to sell. clothing, equipment, utensil or thing which, by _ reason of origin, dirt, filth, extraneous matter, The presence of any food in a food establi h- ` insects,other vermin,temperature,corrosion,open ment shall be prima facie evidence of possess' n seams, chipped or cracked surfaces, is unfit for for the purpose of sale. use. Such tag shall be printed as follows: "Divi- (Code 1956, § 291.30) sion of Public Health,City of Saint Paul,Retained." The director or his authorized agent shall record Y Sec. 331.35. Inspection. the tag number,kind and amount of item retained. 1, . The tag shall accompany the retained item at all - The director or his authorized agent,after pro r times. If, upon final inspection, the item is ap- identification, may, during all operating ho ' s proved, the director shall cause the removal of and at any other reasonable time, enter into a d the "Retained"tag. inspect every part of any food establishment p- � erating under the provisions of this chapter. (b� Condemned When food is condemned, the (Code 1956, § 291.31) original mark, stamp or label thereon shall be removed or defaced and the director or his au- thorized agent shall attach a tag reading: "Saint Sec. 331.36. Inspection outside corporate ' paul Division of Public Health, Condemned."This its of Saint Paul. tag shall accompany this food until its ultimate disposal. The director shall cause the removal of The director or his authorized agent shall e the"Condemned"tag upon final disposition. authorized to inspect food establishments loca d outside the corporate limits of the City of Sa t (c) Unlawful to use or remoue. It shall be un- Paul which sell, offer for sale, process or dist b- lawful for any person to remove "Condemned"or ute any food within the City of Saint Paul, r "R.etained" tags from any food, utensil or any which apply for a food license. other item, or to remove or use such food, equip- (Code 1956, § 291.32) ment, clothing, or any other item to which a tag , has been attached, or to remove, sell, give away Sec. 331.37. Unwholesome food. or otherwise dispose of any item under detention except by the direction of the director or his au- It shall be unlawful for any person to sell,or to thorized agent. have in possession for the purpose of sale, wit 'n (Code 1956, § 291.35) the corporate limits of the City of Saint Paul,a y food that is unwholesome. (Code 1956, § 291.33) EXHIBIT A ..�; . 2 73 y��„ 'i y,,y�'�.j{ A 4� �� .,�...(�,a d�,fjr`�+��. ,.'��}.-.{.'�,-�,, ..?.�a• - - n �4 � - • z - �Y" .: .^�'�s fy. �3y.4, }'�'*a�1`'4 rs��L.x�h '-p "FS' NY 3`�"3✓ ';r 7 r�k• � Y : ��.,�i�! S �..�t,,.t7 .Y�,k;,,�.r.�-yr..�a.��, '��'!+b''�1.�'`s�. 4`f'ti�yy "�� jYs.' . _ �r +,T fi��,v� �Y3 2 ��''Y ."�w`"'c��t,�4�,`�.i.� �w�/�i?ti.i��'_� ih�q� � . �r � .:I �� -��s.�' � `e.Y�_+�''i��'�r�t,r•�je:�.-��j.,.�1°� c'?��54'� '�a'� 'C � a ia.a`r'---� .,�-+� t$ _7� �{• ��a�.F��y��'�'� �C '��y� qy •.:�'1 �' ••�� t�+Y�?.��.'��T"�fs�h• ' �1"� r . - . . � - � �z ,�.��. � . 9 5� ;�--�. 5��._, .��, ; ; � . , 4a�� x��,i ? � , �'�'��`';Y� •�� i . t..n, 'N'E,��`'.�' "� � , 96 L Ed 2d •'' ''� y. � q? � � . U.S. S ME COURT REPORTS `��;��-�.�� .� � � � ' �1'�'.�—' r✓�" •`'!�?r��; ' t1 )f � � .. '. ��- . �'��:'� � � '� F . than. administrative n , � are versed and remanded. .. �',;,� ��,�" ��,�`�.'' �� ; permitted to conduct the a ' istra- Blackmun, J., delivered the opin- . �fi�,`�.��''r;.��s 3:�'`�� tive inspection. So long 'a gula- ion of the Court, in which -Rehn- �.�„�..�'��y.,�;.,�� tory scheme is properly ' tra- quist, C. J., and White, Powell, Ste- ��f�;��:•:S-:...,,s y!.', .y , a ;�•,r_�- .�-r��,��..�`;-•� , � tive, it is not rendered ill al y the vens, and Scalia, JJ.; joined. Bren- • � � �� r «' � fact that the inspecting ffic r has nan, J., filed a dissenting opinion, in �-��.��"t,�� ? � �� s�, Y.� the power to arrest indi du �ls for which Marshall,J,.joined, and in all � '"`"�� a.L��,,t�i" '+�r%..1 i �) �:. ' . �-� ' �.s �' =--�'�'�;.r"r .:i violations other than th e eated but Part III of which O'Connor, J., v , .��.,��:;-�,,�, _�,�,�:� .�� .,� �x,�:J,��.;�� , by the scheme itself. joined. f , 67 NY2d 338, 493 NE 6, re- ��.3.e'0`'r> �- r �..v�.n�'1.'�"�A> .T+t`'�1''�i rrL.+��;,_ . � . � �r�i+7��S4rpA-��i�� ' . � '�p ANCES OF COUNSII. � . - �:7yd... � s. a�.�Y^A..�y��r ��'. � • _ .. . � s�� r��• �z r jZ'' . 4��;�:';��=��' # ' Elizabeth Holtzm ed the cause for petitioner. x `�''�K`'"�.4��;-'�'�_ '`� � Ste hen R.Mahl ed the cause for respondent. � �� '�.0 ar y�:.a�.r..�,Y y: p . .. � �.. ��''„p(yw'y;.^+! , yJT1}`y,f - , . '� .. . . . � }.,��^�� 'a;.�.r•: � . " OP ON OF THE COURT � a.�3}�!.��„ :y y t � k� � . . . -. - .. . .. . '��'-��.��r�""'� �r t � � Justice Blackmun d 've ed the the penal atatutes. _ ''sr��'�'� 'i%A'�`r�-''�'D"p"-� �+•`'� ( ' . � . - �: , - � . • . ';.s'=�` °,�,��-�,,,�sS'�.�'.�� . opinion of the Court. I • . � ,,;.,��.�,��g`�``��"� ` [ia,2a]This case prese �ts t e ques- , : . ' � ^,; t,:G�r'.,i�•�.,�,, �'�`?�t:,' . . � 'k.�x'� x`:i "'�s� a� � ,�.��o�, ,i�#;.�;."�,� ,�; tion whether the warr search Respondent Joseph Burger is the � 'f�•�'j�ar• YY? � of an automobi�e junkyar ,c ducted owner of a junkyard in Brooklyn, N. �;"�1"'`'�'' ,�`� Y. His business consists, in part, of .xz- - �. .. .. t,�,�,�,�,"�:" � ��r.,� pursuant to a statute au o ' g such � �..��;�• �',�.��-��'.� °'° � a search,falls within the exc ption to �e ��tling of automobiles and �-��,. .a�f` '�-- ��- •� � � the selling of their parts. His junk- �-.,.�s�-*1 �*'� �'�,�.s � '� the warrant requireme fo admin- • ��-�,/ �%�--�'Y� .� f yard is an open lot with no build- �• ��`�t`"�_�� ' istrative inspections o pe asively �•;�irr•�g.+. '•'}��-y :'�' ; i'_.. ,_��,..�=a� hs i �tf� , ings. A high.metal fence s u r r o u n d s „� ,�n.�,.,r�;�"',;�=`�y�''�r -. , , .� regulated industries. e e also �,�,�t��,� �� } it, wherein are located, among other ��„�.�x��,,,,..��, � � presents the question w th r an oth- t�� vehicles and parts of vehi- �-�:"�-y.t�'-��',,,,'"�-�;;��.''� erwise ro er admin tr tive in- .,.�., � ;. P P cles. At approximately noon on No- « _�. .: � ��',= �''iz'''. .r� ..._ ;;��,�c� ,. �x. �•,.w y•,., �,t ' spection is unconstitut' n because vember 17, 1982, Officer Joseph �z."��-'��;��..�`,: + `� the ultimate purpose of e r ato . �,,�,,, Y,�l y �N `�,.ti� � : � �' Vega and four other plainclothes ' �j�r,;�s,,,., Y�,�'�..;�� s � .: statute pursuant to w ' h t e search o�'icers, 'all members of the Auto �i`'+a�`Y`�"�"`< � r � F is done—the deterrenc of criminal . F�.�,Y y,�,��,,, ��r�", Crimes Division of the New York `�-"�' ` �^ °'��"� ' p 'City Police Department, entered re- �, � ,,,,��r��: �, x ,��,r,�; � � ; behavior—is the same th t of enal � "'`"'``s ° j^ laws;"with the result t t t e.inspeo- spondent a junkyard to conduct an .,.�" �'� � �. ��:+�... ,,c��,;;�.; ;,y�r"":�� ; ; '��"�'��;.-�'f�',� �� . tion may disclose vio la 'on no t o n ly inspec t ion purs u a n t t o N Y V e h & ��-'��,�� •"A��`�� of t h e r egu l a t ory s t a t t a l s o o f T raf Law §415-a5 (McKinney 1986).' �''� �1F �r:��r7` �..R��^��"� i e .. -. . . . t t�««`,a,,,�z-�;�g�.<�.,��.�„��.�rt-y�"� 1.This statute reads in pe ' e t part: with a record of the disposition of aay such �-•s,�:��+{��,.s'f�'1-,`,%=.st''��.;.�,� i . "Records and identificatio .(s)Any records motor vehicle,.trailer or .part thereof and ...�.' '�.�'+-�-�y�~.".;,`�'^ �u' required by this section ply only to ' shall maintain proof of owaership for any ��s��.,�'�;�.;�.r''5�,.'� -;�:r. , 'trailer or m�jor. componeat ,� , ;€,�. ..� x,�t�,F ,' ; vehiclea or parta of vehicles or ch a certif- motor vehicle, lon. Such r .'''��"�"°�'"�`*t..''�� icate of£itle has been issu by the commis- part thereof wlule in his poseeas' ,.-"�.,m�.._�`""'.,�`yi�'k�"�''�=''K• �, ' aioner[of the Department f M r Vehicles] records shall be maintained ia a manner and ��'�?."�'r�� '-�'-"�''�'� d � � or which wouid be eligib to ve such a form prescribed bY the commisaioner. ,The 7°�, ,i.�;,,.- �:r,,,,s.�t.; b tion eaempt ve- r'�'��,. ,�r%�:,w,�,.-� � certificate of title issued. Ebe pereoa re- commisaioner may. Y re8ula � ' _�-��-.zc, � � °.e " " quired to be registered P u to this ee� hicles or major component parts of ve h i c les � ,fj ee:,,e'Yr�,�t "�'� ;*�C�r�,r ��]F� .�Y,'�� ,� :�. . tion ahall maintain a rd f all.motor from�all or a portiori of the record keeping {,�. ?��YX.�c�'�.'"" ,[ , vehiclea, trailers, and maj co ponent parts requirements based upon the age of the vehi- ��" �:'?�.�� thereof, coming into his ion together cle if he deems that such record keeping t;r;;y;;.'4''��t='��T�,��r�'.�^y�� G�',',��.� ��•' +�:� � 608 • ��• . :��:�'�.v. �d .4+ �-N!� ~��'ti�R� �7� t • � - � . ��. .��- ,�. �.,�_ .. .r'C'}.�y4 ::r-r':c. �a, r �� ' . , f�}`��,��;�,�°.�� . ' EXHIBIT B �� :� �� w�� '�.�'1/.� �=�+1��V :�� i. ��r�.��. ��.• ,�r"Y ky p�'ra-r ,... ��,: •, ,��. a^� ,�> v Y+. 1�, f� "�.S .�F � `h�'�' + Y �x�.i l.S.�+'�'.+ 0.� .� '�� •w ��-�` �yf. e xl �uf�+�,�tn�'' �FSi*�'�'� � rt�'�'�' .p . . +��i�• Y�.ti, " �F�t `7 � �r'S7C �,.ti y kr�Y'S ta .i . �• , � }'- ».i�•'i d'f�.r.�a-+1a.�K. �,(a�tit��b.��,Y�f Si�`��.,�,c,�.?'�{��s]4,-�'�}+��.�q�,'�'Z1��+q' ci� �+ ��;,'}�� i'.�✓o � .„��- �_ � �..{�.�� ,.�, M�i>'�i1..�1'�.��.0-1�:,��` f�.;4 ►r-��'C► x.«•'�` .7+x�n�.h,r3�r=� m. fw•�,4%2,, �`�: '� `�sa _ �.�'�.*.'1,'"„ne ��4it� ��..c tx�rr�3�".r :-�",*r�► C:r-'k"�-�' Yr�i.• ��1`,Y�. .Y� �' :. ��,.r. � . �,� L....�,,.A�A!' :idV H.�z„ti".��i�T?"�.'N :Y�i�.j �-�Y.��~+Yl. k� 'M V'4��`�4 ��:� E �7yy. � r '�� • �,�1 �'�r4l�"�"..;�yf�r�'�'.�' !`a:iz ry. .h,�s's ,- :: 'y.� ..,, : � 1 ry« ,� �� : `��... -J/J--� . J . �, .��'i+ ,--�: 't��i.�,�`'�<<:lr"r,+��'Y?'"`Ya f, ��;,�3��,.,�-'�'.�-,"c..°�s;:�t -,.ti. .�r"'"r.' 1. s ?��,;.,�,,�,. �'j�;�*`aa��-'�t+"�' ��'t�-./"1��',^ '�� 'i3i�.. �-�Nt, _ � ~�" ' . � •I . ' � . NEW YORK v BUR.GER � �TS 96 L Ed 2d ss L Ed 2a so1 ,: Tr 6. On any giv n y. the Division inspection. Burger did not object. Tr ;manded. conducts from 5 1 inspections of 6, 47. In accordance with their prac- �= J., delivered the opin- . vehicle disma le , automobile tice, the officers copied down the ;: ^,ourt, in w h ic h R e h n- junkyards, an d e la b u sinesses' Vehicle Inspection Numbers (VINs) ,. and White, Powell, Ste- Id., at 26. of several vehicles and parts o f ve h i- �alia, JJ., joined. Bren- cles that were in the junkyard. Id., a dissenting opinion, in Upon enterin th junkyard, th; at 7, 20, 44, 46. ��rolice computer, �all, J,.joined, and in ail officers asked to ee urger s license numbers against a p of which O'Connor, J., and his "Police k'—the record of the off'icers determined that respon- the automobiles d vehicle parts in .dent was in P°6 According yleBu� his possession. ur er replied that cles and parts• . he had neither lic nse nor a police was arrested and charged with five � book.* The offic rs hen announced coun and one count of unregistered titioner. their intention , c nduct a $415-a ertY° 4 pOIIdeIIt. was not ia his Posseseion. See � k � �` � requirements woul se e no substantia1 tion� 30g46-47,59�60. � value. Upon requ I of agent of the com- 'I�'6. ; misaioner or of an 'Poli officer and durin8 6.The officers also determ�ned that B�Ser atutes. his regular and us b iness houra, a vehi- a wheelchair and a handicaPPe� f cle dismantler shall p ce auch records and P�walker that had been located in a . I permit said agent o;po officer to eaamine Pe ve les or parts of vehicles sWlen vehicle.See id.,at 8-11,13,34-36• them and any record keepinB re- nt Joseph Burger is the which are subject g,g,espondent was charBed with two counts uirementa of this ' n and which are on of �� ioa of stolen property u► unk ard in Brooklyn, N. q ) Y e f 'ure to produce such ,�� o�� P�� Of the premises• • • • the second degree in violation of a New Yor records or to Pe t s insl�ectlon on th� s��that,at that time,read, ,tling of automobiles and � op�y ��o � ired�to be re�ste ..A��n�guilty of criminal P�ion of of their parts• His ]unk' pu�uant to th�s io as reqwred bY � �len propertY in the second degree when he Open lOt with no build- P�agraPh shau be c A misdemeanor." �a�gly �� atolen propertY,�� " 2 It was uncle fro the record why, on {�at to benefit hunself or a Peraon other than ;h metal fence surrounds � w� e the recovery g1� lO�g{,ed, among other that particular d � B er's junkY an owner thereof or to ia►Ped 11C1e.9 and parts Of vehl- selected for ' 'on. Tr 23-24. The junk by an owner thereof,and whea: yards designated or pection apparently ••1. The value of the property esceeds two �proaamately noon on No- were selected fro a of such businesses h��ed fifty dollara;or 7, 1982, O�cer Joseph �mp��d by New ork ity police detectivea• , . . • fOUT Othei' plainclothes Id.,at 24. "3.He is a pawnbroker or is in tlie bnsiness 1 members of the Auto 3. � ��d o rating a vehicle-dis- of buyinB, aellinB or otherarise dealin6 i� vision of the New York � '� m�ntliag buaine.ss 9n N w York is requu'ed W property• : • • , ; Department, entered re- �°e a lice�' • ration of vehicle dis- "Criminal p�laa of atolen proPert3' � juril[ySTd to conduct Sn "Definition and �a �e �nd degree ie a class E felony.' 1`n pursuant to NY Veh & mantlers. A vehi e antler ie any ��S Penal Law$165.45(McKinney 1975). ' who ia enBeBed � th businesa of accl �witli three couats of §415-55 (McKinney 1986).1 motor vehicles o ' ra for the Purpoee,of gurger also was charg dismantling the e for parts or resellm8 crinninal posseseion of stolea propertp in �e such vehicles ae aP• o Pe�ehall engage t� degree pursuant to the followinB Provi- d of the disposition of anY g°c� sion of a New York statute: 1e, trailer ur Part thel'e°f and in the busiaess f o operate as a velucle `fA��n�� on of aiu proof of ownership for any dismantler unl the e shall have beea is- of criminal P�1 ' tra ion ia accordance with $tolen proPertY in the th�rd deB� when he 1e, trailer or m�ior component sued t°hu°a stolen proPerty, with in- ion. Such the provisions o this section. A violatioa of �o�gly p�esses f while in his P�s�e �y��on a class E felony.'•PiY �nt to benefit himself or a pereon other than L be maintained in a manner and Veh&Traf Law 41 1(McKinneY 1986). � owner thereof or to impede the recoveiq ibed by the commiasioner. The ��Ve�n�me init.ial bY an owner thereof. ;r�y�by regulation,exempt ve- 4,There ap ��C�ina1 possession of stolen propertY ia ajor �mponent parta of vehicles �ntnsion amo the pectin8 officers as to � a �lass A misdemeanor." a portion of the record keeping whether BurBer had not compiled a police �P��1�.��neY 1975). ts baeed upoa the age of the vehi- �k or whether,at moment of the inspec- 609 ieems that auch record keepin8 � �. x.:�N' �.�y5.�+y`i' '.�'.'�N�`'"� � i",x£. „'.;t .rh-F. .� „�-. - • �. tiy:�y".�2�,`'yc� L: . Y �. � _,r .�_ .. � �� • a -.. ' t�y r,,,j :jC�, �w�,�,� �i � _'� � +�.%„�•s+�. � � . ♦.'.�'.,�� ',,,dE�,+f��tjr C4K��e��``��2;aM.ill F i-.� + .1 �r � ?,.r � ,�"�' I r+ � - r��i sy...Jti .i lc,�cf" j,.•� '- r ' . i . � •y .. `ac Y'%. �,. s r.fC ' e .:'�, 1 +'`tf°,'"! ;y��v'Jti��'� Tl''Y. 4 i� �� i •-R.7 " s- -�1 � :' i 's�..r . - ,r :-1r. '� R. 5� iy � 3 ,�. c `�w R�r. t.y,�_-�� ♦. = �'^r � ! �. �.� Z ` c j� _ e: - � � S � ��r: �dj c 3 3 �,{` ;' 's p.�f� y�•,.� ti„ - � �. .�c � t �.z -.r- '^"'�. � S, � 4, . . � . y., -✓;._ . �i� '.� � �� r r�z / - - �r ' , ti K . t � ��, ' t . J. .I � _ J � . r _ I �. S �� . .� �1. M. ;-' �- ' � :• � ,.�, y . . r ..� .—� '� �_ ` : -r .t � J i. �� . ' i r ' ��•.__M�.�.9" � .�tii �/�IJ.. � . '�'� Y �". ' �..Y � � •1 w� . � .� . ....� .�. .. . ... .. �.� . . _.. ._. .�...._ .a.."F_'_ '_ _ • .. _. _. .. ... ' ' '.. ..a .. .. . �._R..i . ...-... . ., ..�1. . � _.. . _. r tiJ.,�ra r Y4 te�t,A li_µal'''_ j'�� Y°?`�r f:T� � "`1�-` - � �--• 1•� i4 +l - :"s:> 'T-.y,�.y`G.y}I.:`'s'�i;r�. x�;w� AY�rS�..*... � • a,ft' � �'' �.� �"�' �7C �' �S �r�f�• ��.�� '�"� '+:o-�'y�i":_. -�� :�� y+; L i �':'.� �° `��4,... G�}'„ .�r �.ti '�,2 YY'.}T t:Y i rt...��+ �,� h.S L..'� !f %? .rP 7.1 � -� �..�a t�w c��,,, � v� �y�i.'. f2��'- t .aY� s'. � yr^dl7X"'v��. � c' �f h��'4.s r ^Y. 'r ��. f •.�'.�.o.i{+t"f-"t=�`'�4�'"�' �..�.L„�;A, _�i�� Q �`��'�:�K`,� -�r� J�r �^t•..e w.� n<.5.�� s. �+y��6:�" ,;,a�,c�.'�'aL. � ✓ �P;4 .y � �a� �x �6 � � ,�.+SY��.;.�`� ��`�{.%��i1k1 ��_„"-��j:�it{�. �.i.-�• .►�`i. �.-x t•-s� ��) rY 3t�.`'�'��s��t��+�/`�.�. a;�;_.''�i^,�f�'a�,�,J'i�� ti� Sa .�•"s',�. �� „'F�' r ' .. _�r .r.''F-�k'f'.� i' x Ls:i�' `L ��i�;o;;. . ro3tiJ�Y'•,�. i w. t� �� _ S'n ..� �.�[! � 4•�S� Y,`�et _�,:�.+� � 1*a.i„« .+"IGS.. « s.r° Y, jr.;� s ..s � ' •. � �`'S x ,r_'W�""� . . . e. :i: _ G.1�, !. . � . . �(�� S �� • �,�: 1� .,.�. - . . � � '. '� U.S. SUPREME COUR,T REP R 96 L Ed 2d I . : � , operatioa as a vehicle dismantler, in 684, 481 2 250 (1985),' the court NE2d 926 (1986). In � '�! 15-a1. granted r ent. Upon reconsid- a5 violated the Fouri j ; , �; v i o l a t i o n o f§4 = . r o h i b i t i o n o f unreaa eration, t e c urt d i s t i nguis h e d t he p #=. : � In the Kings County Supreme $ituation ce from that in the and seizures'Accord { ' i�; Court, Burger moved to suppress the ��t c e. It observed tha.t the of Appeals, "[t]he f . � evidence obtained as a result of the A ellate Di ion in Pace did not fect [of §415-a5] . . �.'' inspection, primarily on the ground a PP 4 a the search in ques- thorize[s] searches u that §415-a5 was unconstitutional: pp y § to uncover evidena � . � After a hearing, the court denied the tion, 125 M' 2d 709, 711, 479 � ' NYS2d 9 6, 938 (Sup 1984), and and not to enforce l motion. It reasoned that tfie junk= {�e police officers regulatory scheme. ' that, in y e ent, yard business was a "pervasively � that e ere not conducting an ministrative schem� � ' !� regulated" industry in which war- a��t tiv inspection, but were reality, designed su rantless administrative inspections acting o th basis of recently dis- police an espedient ^ ` were appropriate; that the statute �vered e 'de ce that criminal activ- � ' - ing penal sanctions '� j . was properly limited in "time, place 1�, was place at the automo- i : stolen propertY." 6' z ' and scope," and that, once the offi- b��s�v e y d. Id., at 71&714, 479 � `�� 493 NE2d, at 929. I t±': .I � cers had reasonable cause to believe �5�� g _g40. The court there- statutes authorizin� j that certain vehicles and parts were fore �its eazlier determina- � spections whose �' ? stolen, they could arrest Burger snd tion in e ' tant case that §415-a5 this Court has up �: ; i � � seize_ the property without a war- R,� co tit 'onal.° For the same was said, "do[es] �:t: � i ran� App to Pet for Cert. 18a-19a. Ye�� e Appellate Division af- authorize general : ; When respondent moved for recon- �ed. 2 2d 1046, 493 NYS2d ing those conducte� �•�: sideration in light of a recent deci- 34(1985) certain commercia' sion of the Appellate Division, Peo- To be.sure, with it i�'� ' ple v Pace, 101 AD2d 336, 475 The w ork Court of Appeals, #'�� ' NYS2d 443 (1984), a�d, 65 NY2d however re rsed. 67 NY2d 338, 493 �,( �I 8. The Court of AF question of the constit �;�. � 7.In People v Pace,the Appellate Division 479 NYS 936 938(Sup 1984). ntes was aquarely pres� r'�' was faced with a situation in which officers had not been ia People .� & Ia a 'tio , the court determined that �.no dispute that th �..., i , had conducted a warrantlesa search of aa �e � a,� proper under New York City u��t to thoae atat� -��: � sutomobile salvage yard immediately after ��r § 36 Supp 1985). 125 Misc 2d, at ,,•: 343,493 NE2d.at 928. � �s having their suspicions aroused about crimi- . '' ' i nal activity there.The court did not find the �1�715,4 9 S2d, at 939-940.That section �;:' reads: 10. For similar reaf j eaception for warrantless adminiatrative in- �e ' ioner [of the Police Depart- peals concluded that � z=;;• ' spections applicable�in that situation, 101 ment]s� powers of general supervi- lated the Fourth Amer T::; �j AD2d, at 340, 475 NYS2d, at �46, but.made �on and' 'on over all licensed and unli- unreasonable eearch� �� i the following footnote remark ' censed b kere, vendors,,junkshop keep- �? � at 349-345.498 IVEZd,; ?�%�; "Subdivision 5 of section 415-a of the Vehi- e�� 8 en, cartmen, dealera in sec- `f�� ` ' : cle and'i�a�c Law, the atatute under which and-hand ' e dise and auctioneers within 11. Numerous Stat �� ' tlie police oH'icers said they were acting, hae the city; d connectioa with the perfor- the warrantleas insP == no application. While this aection requires mantlers and sutomot ., . ; , mance a an police duties he ahall have � �e �,�1�19 '` � ' diemantlers to keep a police book, the book poa,er to ' e such persona, their clerks � §Zg.1gp7C (Supl �'� � ', was misaing when the officera entered and it �d em loy and their books, businesa ��:: prem' and any articles of inerchandise in §75-1803(1979);Cal� y::: ; would thus have beea imPoasible for the gz ��Supp 198 a., � o�cera to exercise the alleged implied suthor- their . A refusal or neglect to com- 67m(a) (SuPP 1987); ;. ity to compere the book eatries to the con- ply� with the proviaions of this g717(a) (1985} F1e :-' � ' tents of the yard." Id., at 389, n 1, 476 �oa th part of an pawnbroker, ven- § �_ i NYS2d,at 445.n 1. dor,j op eeper.junk boatman,cartman, 1987)� Ga Code Ann ? :�,_. Stat, Ch 9b�fs, 9� � Respondent construed thia footnote to mean dealer ' nd-hand merchandise or suc- , $��1�,�10 sad-12( '�-' I that police oS'icere had to obtain a eearch tioneer, or y clerk or employee of any �e §$321.90(3Xb) %'�!• i warzant if a vehicle diamantler did not pro- thereof be triable by a judge of the g�t �n §&2408(c ��"• duce a police book and thus they could not crimu►al co and Puniahable by not more ��'-�';- un risonment, or by a fine $177.935(7)(1986r L: ,..:. i. conduct a warrantless inspection in the a� thaa ' Y Y8' � P (gupp 1987):Me Rev '==` eeace of this book. See 125 Misc 2d 709, 711, of not re Sfty dollara,or both." t-•- �'� i 610 3=. � ; �;.:s, I - �.. . �-: '- . �= � � 3.-''� �~'' � �� . , . .�a'��.�.'�y�" � �� ♦ � � �X�� s-r}`e`�ir : ; . .� ' _ fi'T.. �.i • t ��.'"riy""'}y`. .0� a.'6 . _ . , r .� w . i :�. ..'::' > �: �,�'� �y'�M�"�.��`Y"�3�`- ✓�,��3� ��.zr�e��.a s . J �. ��G •u � � s` � .•r'sf�K .. a � a . !°^!!�y'��i ��'�'0`�"ct.�• �''}'Y�,;t"?�,� ..,�,�`ii� ti' t jsx,�y -r� , ,� rs�,-� ( �- '1 .� -'� .11; .Ts� .: �i ;-t ' . �rr�y..6'� 1r �r 4,...-°{►�t ti 7"'''r*�'+es�'�»r c>- ` � � ' r�... !� +; � y� s� ` r.-+. �y �.�y� r �c Y3 �- �' r .�`{� b��.i T� � i': r �1 L�1��-''r.� ►� • f+�/ ' ' iT 'z��T '�� t�.,J+d��Jr'.f. �.�" . � �S{� �• �iw4. � J � i7Gr� r r�.n '{I�' j �;Y � �M. . x'� n� .',.� � j(^�,� aY J{�1 � � ��in j� y l:Lv ry�`/� �3'� Y'i�il��2 ��.I � i5 S r � �. . .�L�� .�.� �y�� Ir��T M'�' �,�• t �.�iJ A •r.� iF� . . , �-. :� .. . ... ,.. _.. a,�._�.�s5t,��v�_a.� " ��k f��,j�jda%� �+�;��' .�.�, ti-. ��x r 't.',a�.r,+�t .*, %r : t - rt .�r . ,'i � ' x. v "_.' - � �� aT,� ..� ,.'F�'"'�-r.a t. Y,, � • . t �,.. �^ � .+ �. .a,. .� r�_ � � . . r"' `..�-''-¢r��.t.r�`-� S � M 5'a�. x� f�}'.Y��'r' "�.fi.+G�� f t:. .id ic_� ?..` � _.� � r'r. 4'i � � .�.,, � C�`��' �S.a, -�.N�.;�,`'st k•y� � y �� . � �;Y A•s•�^a � 'r .° S" . ' t� . .a��A.: �.n� "-�',�r-..� ♦,�� :•-^C'� �rri.�,a ! ,Gq.,.t r r� �..w}� � 1' z � � � . �. .�y.'°'„ s�F--r.r x 3� r�s :1 �,.. � � '�� .1' � �"�=.��'E�r3�hr.�' f � %.;s�/-y 7#h'.�,-�'" �� .'�`,�n��n'4.,.,r ?�F i . ""j j j:..,� 'Y. :.. v w.�t-rt sr��i'S��'��"C 4� �',y'7�r. "e'�-af, w��r- ^rfs f -.iv.� ( 'L+i �-� � . j'y��.., i..:��- . � r� `'Q.� �- - . . �. � itC�i "Yi fr: , ' ��.l.�`u� .. ;''.., j ; . .�.. . ' �. � �`S'>- t?..,e.':'S ,h_� . . . _ .�s;,�. � J`� �`�-. . . . \ J : " ... .�` . . . �, R : ^ L Ed 2d NEW YO . BURGER `-� �a �-`_� ' 4�: 96 Ed 601 * •_ �£ 4 , - � �� '�`t+�r � ��..�. he court `` NE2d 926 (1986). In its view, §41 rd-keeping requirements, and with � , -econsid- ��: a5 violated the Fourth Amendment ts authorization for inspections of n.'�'�' :��i ="` +hed the =` prohibition of unressonable search ecords, §'415-a appears to be admin- ; ��,�;��,�. ; in the `'-'` and seizures!According to the Co trative in. character. "It fails to t ri =i ` '�.=�'" ' hat the s;: of Appeals, "[t]he fundamental d atisfy the constitutional require- `.� :� �F ��•:�'- t � ::»� - did not �- fect [of §415-a5] . . . is that [it] a - ents for a valid, comprehensive r}t ,�; �J`' ' �.�-. ��, in ques- thorize[s] searches undertaken sole egulatory scheme, however, inas- �-.� ��','� ?�^"� ... � y._J , 11, 479 - to uncover evidence of criminali uch as it permits searches, such as � � ' ,:��; i4), and and not to enforce a comprehensi e nducted here, of vehicles and vehi- ` ;,.� }-�,�:k s officers regulatory scheme. The asserted `a - le parts notwithstanding the ab- �`"'ty x°:�'` rting an � ministrative schem[e]' here [is], ence of any records against which �..� �:_ z '':��;,: ut were "-Y reality, designed simply to give t e he findings of such a search could � ; F ,� �. f��.,; itly dis- '=� police an expedient means of enfo - e compared." Id., at 344-345, 493 ,� �r,�,{:. al activ- � �,* ing genal sanctions for possession 2d, at 929-930..Accordingly, the ' ;� _, x�' t ' sutomo- stolen property." 67 NY2d,. at 3 , n1Y P�Se of such searches is to a�`-~;: r'`��-` .�: 714, 479 � , 493 NE2d, at 929. In contrast to e etermine whether a junkyard ' i,�,� : ' ;""�., -t there- statutes authorizing warra.ntless � wner is storing stolen property. on k ; ;, " '_"-�; :ermina- �'�� spections whose constitutionali 9 usiness premises.10 ' . F "�`"� s�"� .� §415-a5 this Court has upheld, §415-a5, t - . . �-�� =��.;>�, J :e same i " ,� . °,.��, was said, "do[es] little more. th Because of the importaat_ state r � *4 ,t : sion af- authorize general searches, inclu - terest in .administrative schemes � - -� NYS2d � �g ��e�conducted by the police, f esign e d to regu la t e t he ve h ic l e-dis- ; `f �� s �'��'_.- � certain commercial premises."�Ib' . antling or automobile junkyard in- ' . `µ �'�'' ` ;. �ppeals, � To be sure, with its license.and r - ustry,l' we granted certiorari. 479 � -k ;`" - 338, 493 ;j �� :. 8. The Court of Appeals found that e Supp 1986); Md 'I�ansp Code Ann $15-105 � .�»t;- question of the constitutionality of the Supp 1986);Mich Comp Lawa$257251(Su �rs=°"'�:�:,�V.�_�z-=t;Fi, PP � 1 utes was aquarely presented bq this case, it 986r Misa Code Ann §27-19-313 (1972r Mo , ? ,r =;�'�: lined that had not beea in People v Pace,because th v Stat §301-225 (Supp 1987r Mont Code .� ` i * ; ° y;:::,, ;_�.:�.�;.;-:...�: York City � was no dispute that the inspection was m e §§76-10-503 and �12 (1985r Nev Rev ;N,..;,t�:,; s-� iac 2d, at Pursuant to those atatutea. 67 NY2d, at tat §482.3263 (1986)> NH Rev Stat Ana . •. •-� �° ii,_ :at section 343,493 NE2d,at 928. 261:132 (1982r NJ Stat Ann ¢39.1OR2 �� ' Y�E � r-: � est Supp 1986). NM Stat Ana $662- r : : '`. e �� 10. For similar reasons, tlie Court of Zr ; ' 12(AX4) (1984r Okla Stat, ZYt 47, �§691.6 � �.` ;, ; • - � peals concluded that Charter $436 also o- .�.�,- .� _ �� rn" lated the Fourth Ameadment's prohibition n (Supp 198�;Ore Rev Stat§810.480(1985r RI ,, ,,,, - aad unli-. * 'Gen Laws $4�14.�15 (Supp 1986r SC Code ,�.'�, ,,�r, , :: unreasonable searches and'seizure,s.67 NY .hop kee� ;� at 844-345.493 NF•2d,at 929-930. � $56�5-5670(1976r SD Codified Laws§§3?r6& � �� ' � _ � rs in s�- 39 and-40(SnPP 198��Tenn Code Aaa $55- � -r�- e:s within 11. Numerous States have provisions or 14106 (1980r Tex Rev Civ Stat Ann, Art F�f � „��., he perfor- the warrantless inspections of vehicle �g7-2 (Veraon Supp 1987)> Utah Code Ann LFt^-,�:,, _ '�' ' hall have mantlers and sutomobile junkyards. See,e •, §413-23(2)(19S1r Vt Stat�na,Tit 23, §466 �r. :� < � eir cierks • Ala Code $4412�419 (1985); Ariz Rev S t (1978); Va Code §46.1-550.12 (1986); Wash� �.�.�a -• ' •' = businesa Ann §28-1907C (Su 1986); Ark Stat ,• � ' PP Rev Code $46.80.080 (1987r W Va Code � °: � ;; , . tandise in 75-1803(1979}Cal Veh Code Ann§§280 ' ) §17A�'r25(1986r Wis Stat §218.22(4Xc)and •�r• $ $ �'> ,ti .-: :t to crom- - & (c) (West Supp 1987} Conn Gea Stat $ 4 ��i982��Wyo Stat§31-13-112(e)(1987). ��. .* _ ns of this 67m(a) (Supp 1987); Del Code Ann, 1Yt 1, �urts have upheld such statutes against � .� �; i �ker, ven- §6717(� (1985r Fla' Stat §812.055 (S P federal constitutional attack. See, e.g., Bionic �' ��, � cartmaa, 1987r Ga Code Ann §43-4&16(1984);Ill v ��a�;�s.;,,::.:j;: Auto Parts aad Sales,Inc.v Fahner,721 F2d • ��, �,. '�a. - a or auo- Stat, ch 95�i's, ¶5-403 (Supp 1986); Ind e r �� 1072, 1081 (CA7 1983); People v Easley, 90 :. e' of 8ny §§9-1�3.610 snd-12(1979&Supp 1986);I a ,��..�:? �.._:=r,,� ;e of the Code $�321.90(3Xb) and 321.95 (1985r Cal App 3d 440, 445, 153 Cal Rptr 396, 399, ,,;,•-,.•��,,�:;,;�:;_;;,�t'4;�,`_ ; ,� �.�, , a r:.�. not more Stat Ana §&2405(c) (1982); Ky Rev t cert denied.444 US 899,62 L Ed 2d 135, 100 ; R � �; � -; by a Sne §177.935(?) (1986r La Rev Stat Ann $82 b7 S Ct 208(1979);Moore v State,442 So 2d 215, , ,, t��-�� ' Y� �- 4!r:•.-�i�"-:.'�; i" (Supp 198�;Me Rev Stat Ann,Tit 29, § 9 216�(Fla 1983r People v Barnea, 146 Mich ` r,�_„r;.��y��":• .;,;:a�.. :,,;,;•,;:.s:vx. ' 611 ��r�y�:=;�-;��x�- _ �.�..k.= .i��:�,� ' . . ' � �':'rt+Y:T'i'„��.�..��,a' " " 'E��a..i-�_T �2•�:l,}r�tS �:i:�.�.•��' "•� -• y�,? . . S.}��:tis'Y r!'�.��'�2A�:. . � !�t..�..� . - . . � � fi�1�rJ:✓. " . i' S�C I.� ' . . ' fY��,F '��"iX:j • . y�� ,xf� .;,£ _R . . �i 4;4i;y t t*....J'� .J' � �{"'I 3Y �t�+y r''_ . .�V-... . . '�a T4Y �� .:i'+ �Lc ?. �•k:-., � a+^� . � ,,,�V �<}"ryt"Y.i,.y_�� .Ff'� �:'��"'t,'-�j.��^a�E��i,}t,'� ��'��'^a rr�� i.. J'•t,x�., � K <.. r 3 7v„�� i,� �.`'�� 3 9 �-}'�� '" 3' r. �. .- d �,,,,r , ' 1�1",'�F�� r�� . �r y,� 'n'=i��'�i�..s"'r .7Ft:�.�aY r ._. � �' 1 s.:r t-'> t's'r'".aiYx.�'�v..s v,�J �'. f � ✓.7 '�L r �.f� ��i }� f_ r *S•} - < <"�. . :..ryr x E.� {�Y� � pe��y x4-Ls'F"� _ �''f�'ir r�r_*Y �� , .ry. . �''. r fj�?'.�:�ti'�f .. ° r ./".; �`+�.c=:� , , ti?"y .? d- 'i'+"'ri G �. �x r w„ 'o.✓+. .+. tik�l `*. K� vA�'�yw�y.rr�+� 1 � �i S.� "n�'f-��t '1. ,q� r� � ++. ,a- . ,� o¢ f a�,..,., ... � M"�7:"'� ,t J �'�c'�l(��YF 1.�.`Y•� l�� r 4 �j. t e"°-`.rP� � .. ,� �c. .�.� .� Y`� .: � � ` .i . . . 4,.�: i � � • . � � •�y�1[3Y RYt� �x=c� al(. .J �r r_l��..�? � ,�.Y 't' „". w� r �, 7,r� `"' "�t.--�`�`�#.y� ,a,e a. � "": .7 � . . � { :e ..�• ,,�y . . ... ..r. . �.� . .u... � r. .t y t �.i'. �n t�� r ��'� �� '�� [J�_'�.'!�+Tr%�i�1'p?i°3'�`i .�1�'.'�iti�L I��'�',"Y.i<`Ser�rF i`-r ��-a'-Z2' .. .. ..:.�4„ V' l�'?ti b`t'i�'�;,T" +r'SF,"�. Cti�'?"'3'1 ♦.�..v--.•r�s,:��sx e.� . ,�.r.y.,:"C_ •-J �y�T1Y.' ,� �r...� '. t�... �} .rdy- ) . 1. 0.L �T ��.� Y l <� �l-��r w':rl�'t""x�'a�� I +Ja�� CM _+r Y v�'�.. .:�a �tY;-�•.'r�i ��j!g•,�Y £#L ��; ��3.�'g,.�J t .`")' �:,.1~�ti{�... "u:. �`, e„s.- �t.. J�. � 7' rr x- .,.?�t' .y.�e�L„__ �%k'� '�.� � � ,y.ry a `- t=- ' p •r. �E' � i"� �' }�C +�f' �' �;;,d..eo Y .-,..,tt "�;.u!�,�a,....r,�� ..�i�'�^. ,�! �" 4"r r .+C"..��i-,,y. , .F�:: 'q'�w��.�t��- t .� .�' � _`�4'`YJrlr�✓_t:��.�j� � '�:l�. '�lfl'�. .�d1 . } t"S'� .•!►I�r '�"1'. Fi� 'k'l .f f i1, 7.i �, "'► r � 4��r' P ♦ 3 � •� �� L .'� l�i'�.. �k�.fr i i "�Y� �•� y ' 1• � . � � . � ' . 1' � I . ' �; . � ' � - U.S. SUPREME COUftT PO TS 96 L Ed 2d �i� t�. 3�; US , 93 L Ed 2d 20, 107 S Ct 61 able eg ion of privacy, aee Katz 2d 87, 92 S Ct 1b93, (1986). � � , v Uni S tes, 389 US 347, 351-352 concluded that the � ��;�. [19 L 2d 576, 88 S Ct 507] (196?), � spections authorized ;;! � u , could e ' t r a proprietor over the Control Act would"p� � '� stock of uc an enterprise." 436 US, � threats to the dealer' � �' A � at 313 6 L 2d 305 98 S Ct 1816. i?; � � � pectations of privacy.' � ; (3-5] The Court long has recog= The u � first esamined the L Ed 2d 87, 92 S C� ` � , nized that the Fourth Amendment's "unique p blem of inspections of . served: "When a de� prohibition on unreasonable "closely e ated"businesses in two • engage in this"perva � ; seazches and seizures is applicable to enterp ' es at had "a long tradi- , business and to acce � � commercial premises, as well as to tion of cl e government supervi- ' �� be does so witt private homes. See v City of Seattle, sion." id. In Colonnade Corp. v that his busine.ss re� ', 387 US 541, 543, 546, 18 L Ed 2d United ta s, 397 US 72, 25 L Ed a�d ammunition wil. � � 943, 87 S Ct 1737 (196�. An owner 2d 60, .S Ct 774. (1970), it consid- effective inspection." ? or operator of a.business thus has an ered a arr tless search of a cater- ��' .:,� [6a] The "Colonna� y°; expectation of privacy in commercial ing bus' ess pursuant to several fed- trine, stating the re �= I property, which society is prepared eral re en e statutes authorizing tion of privacy by an ;�I . to consider to be reasonable, see the ins n of the premises of inercial premises in : ; ; Katz v United States,- 389 US 347, � liquor al . Although the Court lated" industry, ha • 361, 19 L Ed 2d 576, 88 S Ct 507 disappr `ed the search because the newed emphasis in m � i (196'� (Harlan, J., concurring). This statute ro 'ded that a sanction be . sions. In Marshall v , expectation exists not only with re- imposed ' w en entry was refused, we noted its continu spect to traditional police searches , and us it did not authorize en- declined to find that conducted for the gathering of crimi- try wit ut warrant as an altema- spections, made purs� nal evidence but also with respect to tive in 'his situation, it recognized cupational Safety an� ' administrative inspections designed that "t li uor industry [was] long 1970, 84 Stat 1598, : �. to enforce regulatory statutes. See subject c ose supervision and in- [29 USCS §657(a)], o , Marshall v Bazlow's, Inc. 436 US spection" I ., at 77, 25 L Ed 2d 60, engaged in interstat� 307, 312-313, 56 L Ed 2d 305, 98 S Ct 90 S ' 7 . We returned to this within the narrow fc ` � 1816 (1978). An espectation of pri- issue in �Tn" States v Biswell, 406 trine.436 US, at 313- ' ' vacy in commercial premises, how- US 311, }32 Ed 2d 87, 92 S Ct 1593 � 305, 98 S Ct 1816. ever, is different from, and indeed (1972), hic involved a warrantless found warrantless in less than, a similar egpectation in inspecti � o the premises of a pawn pursuant to the Fede an individual's home. See Donovan v shop o ra r, who was federally and Health Act of Dewey, 452 US 594, 598-599;69 L Ed licensed ' to sell sporting weapons �� ,� 1290, 30 USC §801 e ` ' 2d 262, 101 S Ct 2534 (1981). This pursu to the Gun Control. Act of §§801 et seq.], propf expectation is particularly attenu- 1968, 8 'S t 1213, 18 USC §921 et were of a "closely rE ated in commercial property em- seq. [18 US §§921 et seq.]. While try. Donovan v Dewe ployed in "closely regulated" indus- noting hat "[fJederal regulation of tries. The Court observed in Mar- the in rs tra�c in firearms is [sb] Indeed, in Do; shall v Barlow's, Inc.: "Certain in- not as eep rooted in history as is we declined to li.mit ' dustries have such a history of gov- govern en control of the liquor tion to the length ; ernment oversight that no resson- indust ," US, at 315, 32 L Ed , , 12.[6c]We explained i , App 37,42,379 NW2d 464,466(1985);State v 235 SE2d 432, 6-437 (1977). But eee Peopie "� �e length of reguls Zinmeister, 27 Ohio App 3d 313, 318, b01 v Krull, 07 2d 107, 116-117, 481 NE2d criterion, absurd reeults NE2d 59, 65 (1985} eee aleo State v 1Ynde11, 703, 707- ( 85), rev'd, 480 US-, 94 L appelleea' view, new or � 272 Ind 479, 483, 899 NE2d 746, 748 (1980); Ed 2d 3 107 Ct 1160(198'7);State v Galio, including oaee euch as '. � Shirley v Commonwealth, 218 Va 49, 57-58, 92 NM 2 ,2 269,587 P2d 44,46-47(1978). ' iaduatry that poee enorm E ' si2 :. � � � � � .�. j . � ` � � � � � ;� � ��, '°� s �', 's.' . •� � � r _�: .t' . • �.+ . r -a s�.<�!'n,� `-.ra�'� �'•-�-ir r�+ L.� � rF a#r� . � .1� � ,y, i .r' "�.. . � o r . �r„_^�'r 'dr'�ty�r K i7��,� ...-~ayi.�'�� : � - r�.;�rr't'�.j�'��` aY_ 1y-,� : ��i �Sty`.� �'�' .' �� .. � °�il'..S •' V"�'.�,C,e�'�„+a�'l:as`' �'�r••, t . �.c -� M:�i. ,,•F.ir-x�� '� •• „-`-.. v d::;3s%.• ,-- =.ay � j��Lf� '�*�.j.,�}-�;S,a �r ' l- ...a.J��j �: �,t�''.r �� r � , �r� �m. `F'•"-�.,� , .. ` ' y��S,,+�� :%..A��,t� �y, .4. � br c+'sz.; -�j:�- .r. ;�E..,�,ti . i .r �,j..M:'� �'J'.�.,�fi�r _�-;iJ�.� .+ �� s �'�`i�: i r3'�,�. ia'rr�t�li7a`�/"il�t�•�+,��"' �+-7� t; �'3 r�1ti,yr }�� f .. iy,Ji °y}�i'i��':. s!�� ..t,�'��` l •+ .iy.t�.�`.Aw � '�c'•�„%4' "r��+w!3ed�i?tfp� Kq'�t 3s.1Y"4'- �l�tC�4"1i�"�'.s+- t. '"1.�+A;sCfr.'�ti �� a -. �: :fs�t`�v ?�KL.�': �+7}sr q .ri �'�� a.!�,� ��. r��, ';� ..'Y'=F��`�,�..•t+..�p;�tt,�, iaR�� .�r`+'+'� � 1^'^;a.a r'�^ �x r�3 e't.� Y� �� fiY:+,,�r�;f;i�� }'.g!!��,:z.. :f.-- >.,», %c�=Yb�'1 �n 'k: ,•i�.� !T'Pc.;i?.'��.'"' ,• 5+. 4-"�*'�'ri J` � �J.:• Y: �=t�� a-•r�' `"�`'.•�.�:.�r,T.. ../,t 4u. �r.tn,: �4%5�a'.�C a�`v*i�� -k ,:F-x � a8' ,�'~S'-.�SF�Lr�*�,^,s.i .¢h 7� � ��a:Y'�0��[:�Kx's �� ♦ •u �? .t.. �t"' ♦ ...r? ri. � +�"Y� ?L�rc r.� �� - 5::1 fi'^`•c .�l�� : 1 . '�f+e-r 1 . a`r .a '�-^-i a�'�i:ti' :s• .�a. 5�,;=, 'rs j..2.r..:�.''4 iM ,r C't .t t -t.; �t � �7 �s Ya s..'ei,'�. . � .�1':, a�r'•�N�'�•� ..:*7�r+' � Fi'J4G' y'#.. '.rv�y.�_ .�v..x'C�'s, -'a:r .a�� v,�- i _ _'��iY"^��.!�4Y��. .l "�MJ.. � yy:d,3�.. . /�}�� d,BY Z�-T�� r,�,� .sasf'�;i,�+F.n.�a L#a: �„ Y�-• _�s rt - � ��+;,,�� j �... Y e. :� f v_ . �/4« � �•, . �' , y'/ a,r • �r!,` � +K ' ^a♦ Y. . �� h � s�. �'Sr .�� 3+?�'.s�, '�y, „1� '� '^!1a ap c! ..' � . . � a . x ;. �i,� .�. s �,r �'l.ti.n�o S'�. { l��Y"..�'+�1' � ��T1I ".++y.1p�'t. y,y.j„�_ ` 4 . . � �r. � � . K :�'+z . •�. ..1 eyr�4 ii1-V� Y�' .� �-if.g� �o s# 1'�'a'�� c �� .J�.N .r� � 1 _ . �, � ' �y!�R'.{r•' .s �� <�4,�t �.^�'4,��n�,.4 X:n 1iliS.' 'r �<>t L„w x � 1a.. 'Y Y"'�: -�;.�� - .'".1 h�+'tl' w t y !"r. .?'ly�. T; � .rit xV.' -.,-� 1 n ry.� �K1YJ`n ' }��a'"�r.i...,,w�.t'` .*M�J`1^��roF 4- �"^i_ Y � ��'Y.l't''".� t''iF"'�'r '. .�. Y '�c7 ..a '"'s�ST'ti�"'. � +�� y n � � r r," e ��I�J+f 'jL�' . •��yY r`� T�� '1�"j��A.+%fit�"3 "!�/�J.��'^tw a.t 4 Ntst-.�X C.. ) S£{�.1 J��.Y . ' ti��,% ^��s+�qs~��41�` "S��SL''"`�`;�Y.ati:,�At-'r3�{'T -'`��• ��• -� � ^�' -�: ,+...-i . c, �."� a �t.^�., c^. 36r.''_�ts+�.t.�:�'iJ'.�ir...a"v.$u��rx�.�...rwY� r oai : s'-- i r'ia,'�.i 'w, - I"it`.'r.�:n�i � .i��'� �vrs..r. . . . - . . +:�.�?�'Y'h?'`.•�t:+"S.l;'i' .. . . � , :.'� ..•cr v`: '.. _ ' . ' ' ' • y.z7 � �S'4i .: . .:: . "' . ; + 1N. S � ' ��/w� - . . . . . �'i j� �i -� %. yd. . T . �5" * :c..+� t4 .c+Y'- � . . . �6 L Ed 2d ��-, ° NEW YO v URGER '`� �- •``�� ri �: � , > _ 96 L 2d 1 ,y ' '` .v R ,�, C = .�< �s:��: , aee Katz ��` 2d 87, 92 S Ct 1593, we nonetheless w 'ch the business in question— ► , -� �... {� _ 7, 3b1-352 �"' - concluded that the warrantless in- s ne quarries--liad boen subject to �Y r ��'= t}F'`.� YI] (1967), . �:= � spections authorized by the Gun f eral regulation. 452 US, at 605- � � ..��A�� : - over the �,?�., Control Act would"pase o n ly l i m i t e d , 6 9 L E d 2 d 2 6 2, 1 0 1 S�C t 2 5 3 4. .. �Y,.. `� .-; .� ."436 US,� t' threats to the dealer's justifiable ex- pointed out that the doctrine is �. ^.:,j .�,"1+�: 3 Ct 1816. ��; pectations of privacy." Id., at 316, 32 entially defined by"the pervasive- r Y: �- -� : �'' L Ed 2d 87, 92 S Ct 1593..We ob- n and regularity of the federal � ` ;`-� '�� "i��.. i��'S 2�_. ..s�ctions of �'- �� "�en a dealer chooses to ' r �ulation" and the effect of such ` �yY�4,r; ti tion u n an owner's expecta �;� engage in this�pervasively regula , r �ula � P� :� �.�, � ��, , ses in two • '� ` ` �ng tradi- , � b�� d t° accept a federal li ti n of privacy. See id., at 600, , �-: .s�,:� : Su��_ ;::� cense,he dces so with the knowledg '' 6 L Ed 2d 262, 101 S Ct 2534. We ' �~ ^� �:� •� r� that his business records, firearms o r�ed� however, that "the dura- s �: �� =�� ; Corp. v ?. � � % . 25 L Ed � - �d a��on will be subject t n of a particular regulatory � �„: �,„ � { �. �r� effective inspection."�1C�. � s heme" W011ifl I'@II181II 8II "lII1�OY'' 4.p �:r'. `i:"�Y� it consid- t factor" in deciding whether a ° � � '"� : �f a cater- [sa] The "Colonnade-Biswell" doc i��tl� ��ion pursuant to F � �.Y,`.�, x; �veral fed- � � trine, stating the reduced expecta' rmissible. Id., at I x y< `�^�., '�_: t e �scheme is pe �, .•�� ithorizing >� tion of privacy by an owner of co 69 L Ed 2d 262 101 S Ct 2534.0 � ':w r .. � , . 2 smises of inercial premises in a "closely - ; �:r ' �' �:�. .-.�= , ;he Court lated" industry, has �received r � ` '` B ,r �;"•ti : cause the newed emphasis in more recent dec . `° i '�� - nction be . sions. In Marshall v Barlow's, Inc, �sd] Because the owner or opera- , =� �','�: `- ; refused, we noted its continued vitality b r .of commercial premises in a w: �; horize en- declined to find that waxrantless �closely regulated" industry has a ;;.� "°_,.�--°y:-�..�- • . ` :.�t��`��"�!s„`�.,•.' a alterna- s ions, made pursuant to the - � �:=��.;:�=;��ti:�,:;_r:.:,, p� educed egpectation of privacy, the _ , ,.� ,.t,�:> •ecognized ty d Health Act f _, ��'�_;s:. . cupational Safe an �ant and probable-cause require= ,:' 4. ;,'- �: was] long 1970, 84 Stat 1598, 29 USC §657( ents, wlzich fulfill the traditional � `° "� `' n and in- 29 USCS §657(a)], of sll busin f ' %'=; �': Ed 2d 60, en aged in interstate commerce f ourth Amendment sta.ndard of rea- �. . r� �: E,_' g onableness for a government �.�` .;;ti '. d to this within the narrow focus of this d - ch see O'Connor v Ortega, ;` �� ' swell, 406 trine. 436 US, at 313-314, 56 L Ed S ' � , 94 L Ed 2d 714, 107 S `s : '�` � ` S Ct 1593 ' ` - .: . ' , . 305, 98 S Ct 1816. However, e 1492 (1987) (dissenti.ng opinion), � �` � '- ' `� ; �` ,` =; arrantless found warrantless inspectians ma ave lessened application in tlus rs.,_.:'x.:._,�..::.>..`.,.:� of a pawn pursuant to the Federal Mine Safe onteict. Rather,we conclude that, as : :; �'"� r:`,- federally � +� and Health Act of 1977, 91 S t � o�er situations of"special need," � � �� s _ weapons 1290, 30 USC §801 et�seq. [30 U S� New Jersey v T. L. O. 469 US � < � � rol Act of °� §§801 et seq.], proper because th Y 3 2 5, 353, 83 L Ed 2d 720, 105 S Ct ? t � §921 et were of a "closely regulated" in d � "� t � 1 ' q.]. While try. Donovan v Dewey,supra. 733 (1985)(opinion concurring in the �. : ' =f; �lation of � judgment), where the. privacy inter- 4 `- ,�,_; *. : �� [sb] Indeed, in Donovan v Dew y, ests of the owner are we a kene d an d F, _�',, �. _--._�.j.` �� we declined to limit our consi de - t he governm e n t i n t e r e s t s i n re g i:l a t- _� , _ , ,: he liquor tion to the length of time du ' g ing particular businesses are con- �� s�y�. as -�,�j 32 L Ed . 12[6cJ We explained ia Donovan v and health prnblems, could never be aubject , .�� ,;_� �,� to ovarrantlees eearchee even under the m�t ` � `s-� ' ' t eee People "'�if the length of regulation were the y, carefully structured insPectioa Progra� �' �' "-�� "��'`r`" � , 481 N E Z d criterion, abeurd results wo u l d occur. U er p ly b e c ause of the receat vintsge of regula , _T-�.T:;:;!=:�.�.�- 4—, 94 L app��' view, new or emerging ind ea, tion."452 U3,at 606, 69 L Ed 2d 262, 101 S ,,:rr.-�.�;,�T"�". ;ate v Galio, including onee such as the auclear �s^`y'}`':'^�.`��,�: Ct 2594. '�� er . ��, 6-47(1978). � industry that poee enormous potentisl ty "' - ..��r.-.' :< <�r�. 613 �,x,:R .,:-fr.�.. � �.i.,r�t,Ex, �t_�•'.z:�. . ' � , i„'i tT�..�'�.r��r�.._� . t�L�C � � ��^'.,. �-.'r'� �..}'w zls K .��n . . . , � _i.,t} . I� s ..S �..✓' jJ' [. � =�" [r ' ' � � . � � r. K.+^ .. " s . .. . � - . . � �tr �•r . - -cT: . . - � � .t - � r � � 4; .' A ��(i F j�1 ' '`'� 'i"''� t ��4��Si\� � t. 4yik «i. y r r y.t�rM''sl'��•n`7x��'ei"�s'�'�.or �E `�„^��.�.. i?; g,�i+ef � t. � 4. . N .,� t`6��i .�t a'�'„�.r�C'Jy* r y o . i+ E } .�1:.-4 � �` . �-a � �. '">� '}��+� �•c�', :t^�t�'�t'...!� �"> > .E� �-' 1,s+" r��;�.r ��s c S �t .c. . �f . , . "�..`� � a. �s-+�G} nt�.'L' � .. ♦ as i 'i.tf�.�•! . ov.. L f s}..'` . ` . t•. � �%�^`��"�'t s;i "'�"Y`Y.' f�'*��i°C Z�.EF`�tr k�SK'.�, ~vf'°'r x �, �.. �� . c,..�iT '�".. �s : r .. sI. �4 .`{X � ✓: yf Qt r��r �a��-C� 1'hyPr �tK"'.✓�:�.'�` � .+• 'r 7 �' '+^ y`/"r��f� c�S.�,c .: � �� 'A L 10�,y.Y;N Yr.^fL' t �. MSiiSNi. s+ ` .t' � T... fi..SY.'� {T;�:SK�"M1• _ .. "` '.��,$fa��!��. '. e-�.�� . :t+`�' `r3t'F'��Ti� � � JF• , '+'li•I�T' ,t�,s�dty'�^ .7�!✓ � r,,,�v..��r.PC. I� tk��a.•�"�{��} k�T "� g -.r..a.'.'S�s�,i•_ 1�.Gi� ,,.�,�y�. .�,.h< �_ � �� y �• rS :,l � ^��'�� ," 7� ,� .41�' �. !$C: �t .s� �'��'3Z t"�.,4 i�,iG�-��M� I� .�tr'�� . ,� ..l! �1y'j � y. �'+ e1.'�i' Sq��9; s �` ,!-� .S'�Ss. 7 �;�, 1. •cj„�/^' ,� d P = i� �3► "'�. .MMti�.� �! ...w'�'i 'w�jt�!? r,;.�7`� 4 , . ;, . . ; . . - �. U.S. SUPREME COURT �'O TS 96 L Ed 2d � a� � � of the re ato st i; comitantly heightened, a warrant- Id., at 6 3, 6 L Ed 2d 262, 101 S Ct � n' �j less inspection of commercial prem- 2534. that the operation o: �, ises may well be reasonable within F�� « he statute's inspection � P� of which is �devo �� the�meaning of the Fourt h A men d- d i smantlin g, is a clos program in terms of the certainty b�� in the State � �;, ment. - � and re 1 ty of its application, �e provisions regula� '! � '` [must] o d[e] a constitutionally ity of vehicle dismant: ;i [7] This warrantless inspection, �' however, even in the conte%t of a adequa su stitute for a.warrant." sive. An operator can �' pervasively regulated business, will �id• � � words, the regulatory t� industry without . ' be deemed to be reasonable only so statute us perform the two basic a license, wluch mean � � long as three criteria are met. First, �ctio � of a warrant: it must ad- : meet the registration ±.� vise the o� er of� the commercial �d must pay a fee.' r:; there must be a "substantial" gov- remis � th t the search is being � � . ernment interest that informs the P a5(a), the operator m• ; ± regulatory acheme pursuant to made p u t to the law and has a police book recording ;_; which the inspection is made. See Properly jde ed scope, and it must �d �pogition of i j � Donovan v Dewey, 452 US, at 602 �t th lis retion of the inspecting �; °:.� '� 69 L Ed 2d 262, 101 S Ct. 2534 officers. ee Marshall v Barlow's, �nce�,n�the constitution. ? � In�. 436 S, at 323, 56 L Ed 2d 305, 'istrative inspection, not tb ; ("substantial federal interest in �- 98 S Ct 81 ; see also id., at 332, 56 whether the search and se ��j � proving the health and safety condi- cbair and walker Were witt t ; tions in the Nation's underground L � 2d �i05 98_S Ct 1816 (Stevens, ;�p�on, we do not rea� J., disse tin ). To perform this first ;�u� . F i and surface mines"); United States v. „ Biswell, 406 US, at 315, 32 L Ed 2d function th statute must be suffi- 1,�,�e New York Court ' � 87, 92 S Ct 1593 (regulation of fire- ciently m rehensive and defined �ply that sutomobile jun « that the o er of commercial prop- �•closely regulated" busin� i arms is of central importance � e� ot elp but be aware that Rsther, it found fault witt :: j federal. efforts to prevent violent 3' adm;a;strative statutes re� ' crime �and to assist the States in � Pro rty will be subject to peri- � odic ' p ions undertaken for yards.s�NY2d,at 34�: regulating the firearms traffic within „ . 930. In his brief in opposi their borders"); Colonnade Corp. v specific p poses. Donovan v gor ��iorari, respondent . United States, 397 US, at 75, 25 L Dewey, 52 S, at 600, 69 L Ed 2d t.�at th;s induatry in r1e � Ed 2d 60, 90 S Ct 774 (federal inter- 262, 101 S 2534. In addition, in regulated" by his states ' defining ho a statute limits the York Legislature c ; ; est "in protecting the revenue �cretio of the inspectors, we have ` comprehensive regulat ' against various types of fraud")• recced at the industry.Bri � observ th t it must be "carefully 15. Under �4�5-a1, "(n *' � Second, the warrantless inspec- limited t me, place,� and scope." e�e��g b��of or tions must be "necessary to further United ta v Biswell, 406 US, at ��. �� ,e,.e [the] regulatory acheme." Donovan v 315, 32 Ed 2d 87,92 S Ct 1593. � � gued to him a�;stsatiot. ' Dewey, 452 US, at 600, 69 L Ed 2d the provisions of this sec 262, 101 S Ct 2534. For example, ln III application for a registr Dewey we recognized that forcing must provide "a listing � A tions and all other convic mine inspeCtors to obtain a warrant illegal sale or possessian� � before every inspection might alert [ib, S] Se ches made pursuant to motor vehicle parte, anc � mine owners or operators to the im= §415-a, in our view, clearly fall , rests for any such violati . pending inspection, thereby frustrat- within ' stablished exception to. aad any other pereon req such application." $41: ing the purposes of the Mine Safety the w ant requirement for admin- r�q„u.� �t the operaa � and Health Act--to detect and thus istrative ins tions in "closely regu- fee,aad$41b-a4 stipulat� � to deter safety and health violations. lated" b in sses•" First, the nature ��eqistrap ac�a�b �� 13.Because we find the inspection at issue tutionalit of 436 of the New York City businesa at which the ac .i here constitutional under $415-a5, we have Charter. reo er, because the Court of Ap- tration is performed w} j. ad �onl the general queatioa tion one huadred thirt j no reason to reach the questioa of the coneti- peals Y i 614 . , � � • � � � � � ( _ I ! ,.� � .�.� . �. � . ' . .. Y��yC��^4r. s f .� 'A - , . 1 + �' �` .' aJ�..�is�.v'��'..+".G �t ,��L'l��.► r •,� , "'.�. � _ K �� „ _t< . �s�`�� **,.1i;,,3��,��,��" .,rr+� �5- .. •� T�j+--� :F� �.c::"4+ • k- r.:}-, ....,� r�'y',7 s�f.�`1�'�. - % �e - n'a( ' . .Z� . � �i � . � ''��.yi��r��.3�r`f.•"= ` L-t,r3, �`"��,,;-�,�',rf... .- .sr�t .�i'-i��! � � .,�+ � �4' .'�'N�/� "�7 a �4.��. d'i��'s,, �� c.i�q�'�.+�- +i�zrr� �1'r .1 � � 3. �+'.h :al .i�ix'��7 ' '�¢ -. i•'�"'".�'��'�Fr�PeL�.r-�`�"rY�s "'yS.��'"��.:�y"y�,.�f�,y �"',��':.=Y�rrt�,.y3�;u'y-)�',��I•4 y, r"'f-,i- : ;X,= .t ��_•j,.�Ra�J..�-.'!%Y��7s^�r�'.. •�� '� �.4�i`�_I,7�!�?'��J �'.�.:? ��.rfi'�f1��'V.ci'i=�iti r..a�-:!„K7ul��i ��.�"�G£'a6:N�"' '�tHr�+/;�atf�j�,�� S ys �i- F�:a. „?�'L "�'E„yy+p�i +Ct.'.F��r �f.r � '4e� �y4'-, )Y„�'�:' y�O'�JJT-.jR�.��_�=l�L,�"^�Ct ��.�� .i. t� .:r,_ ..•. } '`M1 'F 'R�`�' ��l��..�''�i.t?s.��.'rY��'�. �s'`�s i,:,'2� �•.a.9'� r�i'{.'tiMi��'' ri� i�� ' ""ir��,Y-��'."'YY.'.i��.'�w.`��"''7 y rT.y,1�.�ln'•�-f.�:s��i.�.?. �. .r �v. . '�' ~ � _ ' s,t ..a�•,..� �4T x„�n� +t�. �tS-'' °�°�.i. ...7 � i ...�.�}� :;• '."��il��^•. s'1�"cq:,Y•••FY..`t.t � ~ '':,t�� ...,� e ;�i� ..n�=..`:whJ,: r..}k.«x..�''.- � ,..4� � !'^y-,.�.St. ��i��a��,;��k',vt y x.ti:- �w f 7 T r, �1+8ib� ��;r.�� ..�aif.A?...__�i�.16"i� - - y-L� .r .;. ' - - ��° j�� - N3 'ti... .��.. . � e{t .� -" ti. _ �� r� ''�1=Aj�Y�•� {,f" �r��+ �z�ti ;'.a.. � i� ..j� r �. ti i- �-�y �,.�; y . �J" . _ ' ,f� �.[ .! .� i - . :� !l r'Y •7, . '" Y f � .., • �+T Y ✓ � � [� . �i r �... �.� ,$ Y . y (�C'+�`� '�' } �3?� �'r y at f i q.s�f�- t �.i � -- k-i i� . � � .rt��Y�itit�� '�'.!L'��r"l�`�Y''�(`a•'6tiri,P.C�'.i.��.�7tT�� 'r iii..a . .+�.r 'L y,v . � f ....! _ ;„. �°11 � ,5¢` aP.?i+`�t"� r i�„�1�t��:- � �Y� �iA � �t Y.v e ��" �s � r� �.r'�'r�i -t ��i r a� �'-•s. �4•�'�v,� »s �.--,,,� �„� •L'T�t- •�r .s�� '�s*�' at� � .K: +'. °.F 'E '� "c ,.`,�',a�, �i� � ' '�. \ar . .�t .. � � t ..+�.� �� o� 1i �. ' J F ��'K,��sr��Ur+.':f r f �a ri� 4 �{,J:`tt f L."' V C� • L �� r '9!�-...1q�..'s'S1" � .+.XL'�+sc•�' `�•C�::at'�-_►`,'•I'.'ti"�r"�t ,._�s-s-�,..•s Y�a .•�-., :r` !�:fat+�..�-.dLt.+i''a.+s:. "`�.2t�'-� �.2' _�,.tir`. r +-, .�.�r .,;„'`::i: � , . � . . ' .:_ct::'2^�ti"-`yi�':..�r�..,- .. , .. . . . . . . �. ��'�•• t�,- - 7..:'�. . . . �. �,: .:A� :.�_. _ �.,;. • - � :a;a -.�t sx * _ �t _ : . ; � T <. : �L Ed 2d . NEW YO BURGER ,�'�- x `� 'r '96 L 601 •`�;-��-;•y;'•-r;:��,.- k�; .. � z ~�� ; : �� 101 S Ct ;� of the regulatory statute rev d vehicle parta, and make.such �. � F �.t t � �= that the operation of a junkyar ords and inventorq available for �.� : �,� �y'�',_ ��- part of which is devoted to vehicl ' pection by the police or any agent ' F� . ,�•,�;:4+,�:. tSp2CtlOD v. . ' ee 4 z .4 r ;ertainty _ , dismantling, is a closely regulated i the Department of Motor Vehi- h� :; ;,,;,.:.. : �lication, ��`r b�� the State of New York. les. The operator also must display �-.� ',A,�> {�'�.. - The provisions regulating the acti - ' registration number prominently � -� '�.x{ -• utionally ` • '".- ��t„ - ity of vehicle dismantling�are exte � t his place of business, on business ,. ;,�k ;�-, n� sive. An operator cannot engage ' ocumentation, and on vehicles and � -_ gulatorY Y - �- ; „ �; this industry without first obtainin arts that pass through his business. �,� �,"� �'-�;�5: �°�t 8d ='�;. a license, which means that he m 415-a5(b). Moreover, the person en- t� ,_ %.;f�, : 3.'- meet the registration requiremen aged in this activity is subject to x � � ,:�Y;�-- � nmercial ';>. �d must pay a fee.'� Under §41 riminal penalties, as well as to lass � _; 1� r �, '. is being `" a5(a), the operator must maintain f license or civil fines, for failure to ' '� =�- a :";�t.- nd has a police book recording the acquisitio mply with these provisions. See ,� f '' *.Y. ,_ *� it must �,' i ' i �P��g r� and disposition of motor vehicl §415-a1, 5, and 6.'" That other , ._ t �' w ` , :- , _ , 3arlow's, �` � ; L ? _ conceraing the constitutionality of the a ' uaicipal law as such section applies and to ^ �. . � � 305, -v 'istrative inspection, not the specific queati loc;al lawa or ordinances and the applicant �,.�� u ; ,� t 332, 56 whether the search and seizure of the wh d all persona havinB a financial interest in - �- t . ' ,$tev@ns, chair and walker were within the scope of e e businesa have beea determined by the r... ,..v.. F;'`v -: pecti we do not reach here this la r maniasioner to be fit pereons.to engage in , ' this first 'ns °n, „ � �;, ,��-�. - issue: � . uch busineas. > � "Sll�l- • " `'� defined • 14.The New York Court of Appeals did a 1& The broad eatent of,the regulation of `` � implq that sutomobile junkyards were aot a e vehicle dismantlin8 industrY further is ::- t � -t, t81 piOp- ••closely regulated•• busineas in that Sta . hown by the fact that $415-a regulates the F `YR .� � q,Y�rc.�, : are that Rather, it found fault with one aspect of e '�� not only of vehicle diamaatlers but .. _ � y a� ..s- � -., t0 peri- administrative atatutes regulatin8��J of those in similar businesses, such as . - ',. �; , K.. ien for yards.67 NY2d,at 344-345,493 NE2d,at 9 vage pool operatora, §415-a1-a, mobile car . , r *': ^�: OvBn v 9�• ��brief in opposition to the petiti n he�, §41ra1-b, itinerant vehicle collec- 6 �"' �^; L � � for certiorari, reapondent appears to con �, §41b-alc, vehicle rebuilders, �415-a8, LL .. �.• 1�: that this industry ia New Yorle is "cl Y ap processors,§415-a9,and scrap collectors , �z " � ,�'�;r :. �.itiOn, lri regulated" by his statement that the N d repair shops, §415-a10. Moreover, the � ; ; -�•��.. rilts the � York Legislature c6uld enact a �loaer of the De ent of Motor �;_;•>-= "`'=`'�"+;;^= Partm -• , 3 : we have ' comprehensive . regiilatory scheme,•• '_ ehiclea has promulgated regulations dealing ,x°s` ` . .. , - :Sx'efully �at the industry.Brief in Opposition 8- ��y with this industry: e.g., NY Comp rr � � " ' 15. Under §41rra1, ' a]o person shall - � Rules & Regs� Tlt 15, §81.2 (1986) F rs : '� � scope. . � re�istration} ¢8L8(procedures upon acquisi- " � s � � j7S 8t ' gsBe in the busineas of or operate as s ve ' e , k - ' r dismantler unless there shall have beea on of junk and salvage vehiclesr $81.10 `r - �1" _593. � :;� $u��8�tration in accordance ' vehicle identification numbersr $81.14 (re- y � the provisions of this section.•• Ia makin� o r d s). . � ;�, T ' � '. application for a registration, the opera r �� 'Bue that §416-a dces not create a mnst provide "s liating of all felony con c- �ly administrative scheme, because ite pro- �� :� , tions aad all other coavictions relating to e � io� � not su�cieatly voluminous. See rs :�� i� illegal sale or posaeaeion of a motor vehicle r rief for.American Civil Libertiea.Union as , •� �r ': 3usnt t0 motor vehicle parta, and a liating of all - �� e �6. Although the number of � -�' ,,_ - xly fall , resis for any such violationa by the appli t regulationa certainly �s a factor in the deter- ' •; �._ � ' ptiOn to_ and aay other pereon required to be named in minatioa whether a particular buainesa is , f,�"s'X':?=:;,k..;;s.�..- auch appiication." §415-a2.• Section 41 "closelY reBnlated+" the sheer quantity of ,.� _ ' adm121- ea of atatuto material is not dispositive i �•,•�� a s �. requires that the operator pay a regietra n pa8 r9 ; :ly regu- fee,and§415�s4 atipulatea that of this question.Rather,the pmper focus is on �r'�°` �, ": : � nature �•no registration shall be iesued or ren whether the."regulatorY Presence is sufficienb i� -:� ,�:A�`,,'` . unless the applicant hsa a permanent p of ly comprehenaive and defined that the owner .� w:-,�, -.� - • York G�ty busineee at which the activity re4uiring of commercial property cannot help but be ` ',;,r�x ;`�t+�r F- will be subject to �%`�= } '":ri x , .ut of A� tration is performed which conforma to aware that hia propertY � x- tion one hundred thirty-aia of the gene periodic inspections undertakea for specific r �"" ��;;�'�*.`� . question e .;..-ti,�-= 'L•==r.�:.•-�: 616 � _;,� �:<; �:-: , � � �,� ' � : . . � -'.,Y�h �.. i. : � • F t � •i j ,,, r r _ . . . �':✓`i-F' ��„� .�k� . . � . s^w'.L7.'.S^r!:<..:,A9�:;.,.'f,. � , � � - . F.1,;:=.1`:-. i..�;x%!_.:`,. .. � � �� c""�%r�"fi' ,'�}':. .y '�"` • � f„��ttii,r-.� �_�"If•� k �-.y. _ �:. , . ',. . . . • tr-{t�,.s� �dr..� r�'. n.. y,. Si.y�.� 5,+• 'Sf�a�f i. �',� � �Z,.��.S r,*D y - '£ ��;�{ � � :�`��,�-+'"_'-��,e��""�iq"'"�'�4,'r,��3 5 r �,� �L,� js ��,�� ' � '��'�*��s}.�e�j(-~� - � Y �'�lA- Y{ x!"'�x t"1��"�t . r .�.Et r: �„��..� � y �� g �'a+ ��i a�nt�+�+,;.3''i' !` �i .'"✓ r.s.�f f�t�.`�. � a. �.j�: . 1 �.� a . � �.: 7tFj.y M i : -r.• � 1.�i!'�/+�/�"t� �'_ . f � .r . ,� s s ,� 1,r;,,,r r � . .tiJf'�ro� . i .� .. `i` a �� ,1+� �yei j,ary.. s. .C�`�C� v� y�'.T;, �+^'.. .� . . :� �,�+ '" )f.Y ��3 . �f�^� r.N� •i�1-'� d�t ��.pY.l !�'��, f . . S 4 9/;�., '-'3� �y..� •( "4 ��,� i .0 -.�' r`� -- . �" �i�kiax,s:iG i* �..:_.�...';��::a'�."ia:l:ai3�'ex�Ys�F�h `.��.�:,::�:'�iz'�i�ri�n`w��d:�t:l;.v:�+: T ��r-�w•��TM��,"�;�{�*~��7j�� 1��y.' dk ��'l�:' ;��} ,{� �'C !'7��r�4^��+��..ti��t'„�r.�4�..,,,"`-` ' r�d , .f`�' X+�. y„ ..� �}�+.�s.� Y ""i�cY�. k�` � ;i� =...i.7 ` a.'+ .�'a��`v�. � C'.b.� l ,rp '�,�L�'.f �'T�r'�:'�I`+: E ��..%.-�M' �"F:.�r`�i'� �4 - +'.�'t ..+M'C�� "�'•,'if�'.�,?. .� ,�. . _ .��fr;��- �.fS��."J� `�� ' , . � • �•. 1� .,i, , ,1� , . . �, ;; -�� U.S. SUPREME COURT RTS 96 L Ed 2d � .i4 � � . � • �� ' ' States besides New York have im- dent m the Panel on Automobile of detailed recorc ,� ; posed similarly extensive regulations Junk da White House Conference and.sales, and the � on sutomobile �junkyards further on N r Beauty 1 (1965) (state- records available ak : supports the "closely regulated" sta- ment arles M. Haar, Chairman: - times to designatec .� ; tus of this industry.See n 11,supra. "The a junkyards and aban- ing police officers, .j� � ;' . doned in the streets and along . . and by dealer In determining whether vehicle �e c t side that are m � ! dismantlers constitute a "closely reg- �g articles . . . . �► � ulated" industry, the "duration of �eri u ly, not beautiful"). °'These regulato� y� � [this] particular regulatorp scheme," ' �e 'u obile junkyard business, ing and warrant ', ; Donovan v Dewey, 452 US, at 606, howev r, ' simply a aew branch of provisions for ju: 69 L Ed 2d 262, 101 S Ct 2534, has � � 8t that has esisted, and been a part of the �: � some relevancy.�Section 415-a could � be said to be of fairly recent vintage, � b c ely regulated, for many of New York and � i see 1973 NY Laws, ch 225, §1 (Mc- ye�' automobile junkyard is at least 140 years. Kinne y), and the ins p e c t i o n r o v i- closely ' ' to the secondhand shop ;. neny, 99 Misc 2d p o r t h e e n r a l j u n k y a r d. B o t h s h a r e } ; �,- N Y 5 2 d 8 4 0, 8 4 5(Si E i sion of §415-a5 was added only in �� ; I the p of recycling salvageable 1 9 7 9, s e e 1 9 7 9 N Y L a w s, c h 6 9 1, §2 �cl an components of items no � � �C A d m (McKinney). But because the auto- longer a le in their original form. 113.01 (197'� ("`Jun mobile is a relatively new phenome- ,� $uc , hicle dismantlers repre- Person engaged in � t' � non in our society and because its �nt a ' od rn, specialized version of P��g or sellin ? ; widespread use is even newer, auto- a�.adi on activity.l�In New York, $B32-126.Oa("`deale: �. � mobile junkyards and vehicle dis- gener j kyards and secondhand �cl� shall mean � ; , mantlers have not been in existence $hops 1 ng ave been subject to reg- � �Y way or as a � ► � very long and thus do not have an �atio O e New York court has or agent . . . 1. [dJe �� , ancient history of government over- ex 1 ' d: chase or sale of secor � sight. Indeed, the industry did not p of whatever nature." attract government attention until � "V hic e dismantlers are part of of government regul� the 1950s, when all used automo- the j k industry as well as part lated activities argc biles were no longer easily reab- of th a industry. . . . Prior to favor of the "closely � sorbed into the steel industry and the ac ment of section 415-a of tus of the automobile �� attention then focused on the envi- the �ehi le and Traffic Law, auto Accordingly, in ligt ; ' ronmental and aesthetic problems dism tl rs were subject to regu- �ry fr�ework gove associated with abandoned vehicles. lato pr visions governing the li- ness and the history See Landscape 1970: National Con- cens' g d operation of junk- — �1a� �dustries, as ference on the Abandoned Automo- yar ese regulations included � ,� ��y� .engaging : bile 11; see also Report to the Presi- pro ' io mandating the keeping mantling has a redu � purposes." Donovan v Dewey, 452 U3 594, industry. e mponenffi that are atill ueable of privBCy in t�lis "Cic 600, 69 L Ed 2d 262, 101 S Ct 2534 (1981). are ma a 'eble to garages, body shope, b��• Section 41ra plainly eatiafies thie criterion. and the ene public as ueed parts for re- 17. A member of the automobile 'unk ard P� of er vehiclea. The portion of the B J Y vehicle t' not suitable for parts is paseed � industry described it this way: on to a p roceasor who then transforma The New York reg "Webster eays junk is old metal, rags, and the h or e remnaats, into a product � rubbiah.The word'junk'can also be used as a suitable r melting purposes." Junkyards satisfies the three cri � � ' verb, and as such would mean to discard. I &Solid Dis in the posal Highway Eavi- repreaent an industry that buya vehicles mnment, ' of National Seminar 19 1&In fact,bq aesuming which are no longer suitable for transporta- (1976) ( te nt of Donald J. Rouse, Na- with its uee of the term ' tion.These vehicles have been wrecked,dam- tional ' 'on of Auto and Truck Recy- and "dealers in second-}a ; aged, or have otherwiee become inoperative. clere, n kn as Automotive Dismantlera eee n 8,aupra,could be ap; � � ! Theq are takea apart by members of our and ere f America). the New York Court of E ; I 616 ;� I � , � ; I �, � ; � ,. �° �� r �''`'r- ..,��!�.�a �. ,. . �� _ . , � � �� y� J��L^`r,l�'�-t.Gy� a. y, .Y:��J f��'y��,�{:� �S�a t 37.��._ ii,�" . � yl, .i ^ � ��'� Y.�'�,�'7" Ti �� t�"S-� M.�a� t n a„ "y'y.1 1M� • +�..D'.i1.. r. .z a ,� ✓aYJi�.�f�?L��"'=vf""r *;� � .3 �C�..�vt�H• �''s ,��2:• �t., �„�, „� +'.b��d,��¢�l.'�,.�r�. L.y`€.3`l�liy�,...�, �,:-.:.�'' � ° / � ��'y.*, �y � ' �!�� l v.rt � .K _+ .aF" rY� i� �ri;. . -y� .�c 1.. ti K r+?- y�„r ,4; ��i:�:s�'3'".�°'''i3F�✓ai f� � a�:+�M1..-3.,�y5� ''p�. yy��M�y".fi f t�+'='vt`x'*�3�F'L,a.s3-�� ,•P.4r��.v �.?E.,�,i� � i7. sf%p-:�r�S��•�4�k 'i��•. �`•�• r :4.: � +rH ` .r+ �„f,�(Y'Zl�,. �C�frr_'•'~,-.jf'�� i'��'f+4.}"�i:Kl� <" Y'��. r.. �� ..y� S ,�.. �.,��- , ,^W s�� A�<� "'^� i 3 'ti i r ?' �' �r�r r �'�,r ,r 7� y„c�,�'�3�.�*7�"K ��fs.�. {';•�"Fgf�i� ss?a'r<y��^'� .,Us �� a �-4a��f+.{E�"�t o�[�•J,L��.:cti ,�as�.�L��yh~ ;�<�:;.:a��° '� �,i ��i.v .+Y vr i^� .�� w;Y� ';�- . Y,i.: �i�''S1+f'rM��' ✓ I�J�r-�'"a s� y i J� "3'�/ - Iy:.j 'S�S/1 '. t_ � � ,� !♦ ��t v.^,i.'r7 d,sf'a. , i �s 7�., r.:s �,�;'ti�t w..x..1 .i�.Y' f^j ��t�'�'ty!S:f '4s" ��' "J` !G�"�� ''�►�J`r.'.- �ss^.�• r �' �+ ....�.`��"".dc",t'� �`'t'�S.T..�„s+�.<'�.' '.� , . T''�h' + K!�,.�.��.�- .�s;+t::!�'��P�;. .1 ,er.f�,,,� f`da,� 2�ni�.t�.. .�r�,,c. R- .+",.a�,a�� "��v ,'�"`.;�.�4^', , - ,p��`,+► �'�"fi.r�'�'�•.0 •n f5� sa t ,'� ;t ; � : : .. � ... � !{r �?�T j n� ` i .. - .1 � c:,i ' ,+.. � .y4' +� . • cs X'� 1� '��`� Y+�:�,;t`fj`.'C� K �Y't4�y ,se'Y .+��: s� � �+r � � 'fi t y"�' . ?/ �-t.ri.S-�v � � Y b+� f r+)`�' w M!.: �.t ) . !y ' „�a_'��Ft ,� .�� .<;?a Y ,i.TO'{ �i.;i�,ri,s emrf`,.rS.. 4. j< '�-„�,�..:.��ryF��n� : �1.Y . �r � ''�' h: ,� �. S�. 3�+-s T' . � .a x1e �s '�„'"`J"'�' � J�i��•t�n�,,,�t� :i t��-"YT 7� 4',�' � ` t-r� Y. r� � 1 1� Y�: �J i{�' Z.,yl'l*�7 ��`�`".p '.ti...��{.J�`.+.f�.�f yy _ .��.�,r 7.i , . • } 1t,�� _ - �%` �.f� �'��rYSX vY��. ��. �'7�`��F�-��s_�� ..�;��X. -Jr f17-��t�y.. � . . . •:ei'�a+TS'... .u...a� :�f.��e.KU:x.�._,..�� ....e�.y.;.`. C . � t' '+.<_ �-i. . 4.` f. . , ' � � . . . . . � i ..�y��;e� Ca.e.��.r . ?_t"sP? cP.::: e- ; < Y�°•; t'. . i i '� s...:r �_ %. 3� t -z � .. A.�. . . � . ' �� 7.1��r t t� y... t�. . , �.e �. r � .F£ .. L Ed 2d �.: _ NEW YORK B GEft �� T , « �; 86 L Ed 60 � � �Y , �k�. .��., � 6 f . :omobile ��`'..' of detailed records. of purchases ake reasonable warrantless in- �';r.;�i ;_�:�� zference �:� . and.sales, and the making of suc h ions pursuant to §4 1 5-a 5. F i r st, ' � x;. . �' �;�': ) (state- '+ records available. at reasonable e State has a substantial interest ' - ` ` `""`_ �F ( y�! rN airman: ''� times to designated officials includ- ' gulating the vehicle-dismantling �y :<'}��,�`` . �� *�'_�:.�..'�r�.r:i t aban- ��:: • ing police officers, by junk dealers d automobile-'unk ard indust �--� .. , ,, J Y �' �. {<..� -_ dm�� ;. ,.. , and by dealers in secondhand use motor vehicle theft has in- ° � ��.. t:.. :� -�., t �-: articles . . . re ed in the State and because the r , �� . � ro lem of theft is associated with ; i• �' ,-�`�'�• ' . "These regulatory, record keep- • , �' '�� `. t`: industry. In this daY�-automo- 'Y.;.�-: usiness, � ing and wanantless inspection ile theft has become a significant '- ` ' z `ti��` ` anc h o f �, provisi c sns f or j u n k s h o p s h a v e oc' . problem, placing enormous � y � �s -�w��. _. sd, and j= been a part of the law of the City o omic and personal burdens upon .... ' ��:.'�'`�• �r man �" of New York and of Brookl for ' t _ ��`-� Y �;. 3'n e citizens of different States. For , z; _ � : yard is at least 140 years." People v 1�n- x ple, when approving the 1979 � 1`� t+ T. a d s h o p n e n y, 9 9 M i s c 2 d 9 6 2, 9 6 9, 4 1 7 � n d men t t o §4 1 5-a 5, w h ic h a d d e d '�� QT� �� h share � �• NYS2d 840, 845(Su 1979). �`''" :`�'�"M 4�`"" P he provision for inspections of re- ,~ �t :. ��.�_.. �ageable .:. ' Cor and inventory of junkyards, � > ' Y 1� J�+�•1 L See also NYC Admin Code $B32- the Governor of the State egplained: � rx - �cti, r�j�r ;�: :ems no N'' 113.01 (1977) ("`Junk dealer'. Any . . � � �. ' LL,� . �l form. L; p��n engaged in the business of "Motor vehicle theft in New ` _'� � t= �',-` 3 repre- purchasing or selling junk . . . ."), rk State has been rapidly in- � a -�,. � rsion of §g32-126.Oa("`dealer in secondhand easing. It has become a multim- ' , 'y� � �v York, articles' shall mean an rson who, ' ' � '-� �- dY q ndhand }` Y Pe il 'on dollar industry which has � in any way or as a principal broker r ulted in an intolerable. eco- ' '_ ..�"` ; ' ` � r� or agent . . . 1. [d)eals in the pur- n mic burden on the citizens of �� --� 4 ��,.��_ ew York. In 1976 over 130 000 '�'�-"`��=`'�`"� chsse or sale of second-hand articles > > !' %C�, - ?��.;Y:+l�Y;•�T of whatever nature.").1° The history a tomobiles were. reported stolen t ` �,� :``ri �'s� �:; r : part of of government regulation of junk-ro- ' New York, resulting in lo�ses in { �• k= as part lated activities argues strongly in e cess of $225 million. Because of �`��°`�'��`�`'""��`'' Y } �y-F R. ?rior to favor of the "closely regulated" sta- t e high rate of:motor vehicle � `�� i� ' ' � .�,._.,:_..;;�.-��-:...�.=- ![•-��-<. '15-a of tus of the automobile junkyard. � eft, the premiums for compre- <_�;:-�;��;;:;:::.°�:r;:.:: A, auto Accordingly, in light of the regula- h nsive motor vehicle insurance in ;, � f=�-^ ; - � r�- ew York are significantly above . � , -� --. } . tory framework governing his busi-: " .,,; •-� �� the li- = t e national average. In addition, ,_,.,,...:,,;.,.�.__, ..;;.;, � ;,° ness and the history of regulation of $ len automobiles are often used �, ts � ` " icluded ''� related industries, an operator of a • the commission of other crimes , �-: � '� junkyard engaging in vehicle dis- �� A ,�� ? _ {�p�g d there is a high incidence of �.,.,;�....`._.:....:.„..., � mantling has a reduced expectation . � ° .:.. , >S� of privacy in this "closely regulated" a cidents resulting in 'property � ..�, �11�eable . age and bodilY �,1!u'Y involv- t°'�x' • ``�, y ehoPa, b��• g stolen automobiles." Gover- `� ` j' ` ti A s for re- r's Message approving L 1979, ' x �' '''� r } , . � of the g ' c 691 and 692, 1979 NY Laws ; ` � �` . �� 1 26, 1826-1827 (McKinney). �' � " ' The New York regulatory scheme . � .� +,,�y~� �' -� 1�C�8� � . . . ��Sf._'�i�+ t�wir"S x �: satisfies the three criteria necessary Se also 25 Legislative Newsletter, ��, ,.< �� 8y F.IIVI- - � � . .. . .. - � ; " °ti - •,� .' ninar 19 18.Ia fact,bq esauming that Charter�436 tha a vehicle diamantler fell within the scope � , ' `� , � a M �ee, Na- with ite uee of the term `junkehop keepers•' of oee terma. See.also People v Cusumano, , � .s, ,�-��` : :Ic < •• • 108 ADZd 752, 754, 484 NYSZd 909, 912 -�� ` `+ -� 4: Recq- aad `dealers in eecond-hsad merchandiee, � `��T�� ,�: nantlers , eee n 8,supra,could be applied to respondent, ,(19 ). . . . . � . ,f�,y ; .. � >�, ,�..� - the New York Court of Appeals underatood , - "- ':',�ti ..-. .•` ir_;k, .�:-�ss � � • � � :i , �,. n:` si� � • ��; < �� -`;�..�-.,;� t .��. . .�_ ..,._ . - �-. ..E . iK- '`��J- �`�.1. �•�i'� s S- . - sF- ' � . ��.�:=• . ' , - e,es- ..c> �� ` l . �_�..�_.. >x -:� . ..� ��-, :. I .a,,.:,r. . E�..,� :�.-.r+ � _ tt >, . , �� ,��. ,t'� �r ' . � � 4. J J�A�.:�-�Y(L�. 1'5... �'y,..�t 1Y.•a .L. , l ,�y�• -�}3�.. �{` 'f�..h [ � � ..� `'r'r �^a'`�S: t�.�j�-I 5fs�'��.�.'i"'�'fi-�.o�ti �y;si'�''�i�h:L �.. � a �..,,�. iA'P. r, ��'�..,�r.�' F 4° 'SZ'r r✓��' z��t� �t+ N�p,°x3 ej.,t .j-�r c�. � �-�y„ � r"��r E. x ! -s. �$�� 'iP�..bz--e��v r � . �e�+r�...''. •-t z� r�r�e s-{j. �S' �3�:r T� S:. �� . � -ti: !>< "'�� J^."w '+ r r2 r*'t ^i.. .y . f r� w s�� -�. .; •!{ � - �;�..�'. +.r 'Y s #.--. .-� y r .. �rr �^rr . - r .. s r �r .� i,.J.� .. • '� 1 • 3y:2ih A.�F�S �� ' t'i'�C� I/ A .,, � '` Y i '� �'- '� R . R t rY�.+. . � . .ne. �y, "�. { �'+' r s .. _�S✓.✓T � ! 1 - R. w.£�- �.1,,,:°`. � s ? - i i_ � � �� ' �i ��'��y"� - �tn r��;�v.!� `�'x 4�'�,,,,r.f3 r y� R `.. � 5��.,t.Sy i Y. ..¢ � A.. �. y� , v � -v'� i+-t'r`l '�s.>'� a±:r ,�,e�,ri.k �� ti- t,iL�; ri,�, ..�`�< �� .! z . ,�.f,S s � iP "s'. � . .- .. . . . . .. _.-w... ..,.... . .. ,.. . ..- i._ ..� . .. . . .r� t..��'S±��. 1Y.�e'..sibyi�t+Rw3biitA'3"i7►}°�'_�-1a��i.9e5+iw' i. � �.-'�j�.^�^••.r.,y�� +? .c � '�w��r� �� ..� ��`T��rsG��ry��+ - �f��y! .�s-�.T'rw:?_1,J?ry�' - L':Jt'! w-:iV�.:y^:. �i!=S:' - � � �, • ,�::':�.�Gi:�j:.. �-""}it_ f..a�.il V+ .�3��►'rP-'fij..�w`�T� .r'�. � �,1� ,�iy `?e..��.'- Y,,�Z'-'^ �'tr�. t: � c �^��:ta:. �.�• �. A. ." e . �r . �. s y ^ "i ►t�. � ~� tYi " �. a"``Y' �i. ►.r <! �= .3 i 1"w'��+.:. r� ':Q�;!,.'k"�^�'a.�' � �wun'+C:^i�df��. �� .tv y�.� w f!"7��Y.T.�'� 1 'F� zir�rr,��rT.o• "f'.^Y.� 4. •v ] � �p• ��. `_- � � � �y. k �''�ivi ��i�'.s` +°� r•�fWSR4!� �j'^�'�f�f�i.'. �� 1"'y j`Y'w+V� .t� i't'�Fi l�Y�.'C�`' .e=� 4' , � >'i��i'►-":+ sr Yi :,ijt... ' V /�i Y� M1 �.t� +J�.� �i 7�.'//'J � ,t • #~� � L �S'�� ,fr . y��,� r-�.?rf'h� � '�;.� y,.�K.�1�' �� S �►� U��Za+� v:��L1 y •�.-.t.y �t.��S'ri �. ' ' .. s s _o .a �' '"`?'"�4 ^"+'` h� • � � `o�'Wa ~ . la .� : i' ,3 �'�,�',i�„'tsYt� _ ,is�. %y��,►1�� . i �'_ 7"!r'�� t„�+r.:k .�'�� Yi#`^'hnt .,,c�`. �f.� �y w vc-'�' � ;,�. ,? 1� i'fi ,y .S. fT�ar'1.• �� `��r� v� +a ,�1,�;."� '►t� _ �%�,.�'` � �a y�T`x�'y�.,i.�s�� '�. �i�� {+�i� 5 � S� .�.�t�.,z:,�� y=. .� , i�. . i�, � t� � U.S. SUPREME COURT REP R 96 L Ed 2d + ; New York State Automobile Assn, p mantlers p ovi e the m&jor market and serve as a cred. � 1 (May 10; 1978), repri.nted in Gover- for atolen hi es and vehicle parts. , unannounced, even y � nor's Bill' Jacket, L 1979, chs 691 See. Lette f m . Paul Goldman, spections are essenti; (1979 Bill Jacket) ("Auto theft in Couneel, S te Consumer Protection 4:; �text, the`prerequisitE �.,�. New York State has bec�ome a low- Board, to c d A. Brown,Counsel could easily frustra risk, high-profit, multi-million dollar to �the e or (June 29 1979), i:; . , and if the necessars ; � growth industry that is imposiag 1979 Bill ck t ("It is believed that �to time, scope, and f intolerable economic burdens on mo- a major ur of stolen vehicles, � be preserved, thE ; ! torists").1° Because contemporary au- Parts and re ' tration documenta- afforded by a wan. ; � tomobiles are made from standard- tion may ' vol e vehicles which pass negligible." 406�US, , ized parts, the nationwide egtent of through e h ds of (junk vehicle] Ed 2d 87, 92 S Ct 15f � vehicle theft and concern about it dealers ). , the State rationally . ... ; , are understandable. � may belie ..t at it�will reduce car See also Donovaa v DE � ' theft by e ations that prevent at 603; 69 L Ed 2d 2 � Second, regulation of the velucle- automobil j yards from becom- ' � � j�� 2534. Similarly, in the :�j dismantling industry reasonably ing mark f r stolen vehicles.and � �-�' a warrant requiremen� ; ! serves the State's substantial inter- that help ra the origia and desti- fere with the statute ; est in eradicati.ng automobile theft. nation of ehi le parts.'0 � deterring automobile It is well established that the theft �Moreov r, e warrantless admin- Piished by identifying problem can be addressed effectively ��.$tive ins ections pursuant to P� as stolen and s , . by controlling the receiver of, or §415-a5 are necessary to further the market in such it market in, stolen property. W. La- ��e] re to scheme." Donovan v stolen cars and part fave&A. Scott; G�iminal Law§8.10, Dewey, 2 S, at 600, 69 L Ed 2d quickly through an aui p.765 (2d ed 1986) ("Without[profes- 262, 101 2534. In this respect, yard, "frequent" sional receivers of stolen property], we see n ' erence between these nounced" inspections : theft ceases to be profitable ); 2 En- ��a d }��e approved by in order to detect tk � cyclopedia of Cri.me and Justice 789 the Co in nited States v Biswell surprise is crucisl if t �Kadish ed.1983) ("[the criminal re- �d Don an v Dewey. We esplained - scheme aimed at remec ' ceiverJ . . . inspires 95 per cent or �gyywe : jor social problem is t � more of the theft in America"). Au- � tomobile junkyards and vehicle dis- "[I]f ' pe ion is to be effective � � � Third, §415-a5 provi 19. A similar concern with etemming the "(2) eesen the criminal enterprise of tutionally adequate Su ' socisl plague of automobile theft hsa moti- motor velu e t ft operationa is the ability of WarT9nt." DOnOV&n v vated other Statee to pass legielatioa aimed at thievea to er or eell stolen vehicles or the velricle-diamantling industry. See, e.8•�� their p ugh legitimate commercial � � U$, 8t 603, 69 L Ed 2d Rev Stat,ch 9bi�,¶Cs100-1(Supp 1986)(legie- �hannela ' them available for eale to 2534. The statute infor lative 8nding that"crimea involving the theR }�e autom tive ' duetry; and (8) motor velu- tor of a vehiCle dismsn of motor vehictee and their parte have rieen �e deale parta dealera, ecrap proces- ; steadily over the paet years,with a resulting �� suto tiv parts recyclera, and rebuild- 2L Res •laes of millione of dollare to the reeidents of e� � e pondeat contends ' thie State"). a8 ia a type of buainess which unconstitutional because it : � • • ofTea e em and their operations to � ressuree d uences from motor vehicle number of aearches that ma3 20. See Governor'e Meseage spproving L p a particular business during. 1979, cha 691 and 692, 1979 NY Lawe 1826, ��: d (4 elements of organized crime � �,e � � Brief for Respondent 12. W � 18� (M��ne3') C'By maldng it diScult to Y �mP�B � �1ce control of tiona, or the abseace thereo: tra�c in atolen vehicles and parte, it can be b� e in the eale aad repair of � �y8� of the adequac� : anticipated that sutomobile thett problems motor•v clea eo as to further.their own atatute, they are not detet i will be decreased and the cast to ineurance �al ' ter ts."IIl Rev Stat,ch 955�, ¶5- , i result so long as the stat� companies and the public map be reduced'7. 100-1(Su 1 ). . . places adequate limiffi upoa iAa the IIlinois I,egielature found in paesing See also tat Ann §8-2402 (1982); Nev • the inspecting o�cers. Inde , regulatione aimed at thie induetry, Rev Stat 482. 18(1986). . ' 618 Pro�ed st8tutes suthoriz�ng I : � I' �.+�' , - �. - y .� -'�f„�� . .� � .. ., .�. � . . '... . Y , 1��" � -"n,r,�:.r,r-'+r� -�' y 7..�i_-rsr+�,3� �St - Ai^•t.J�' � ��Xr"'i�l'� �` °•�+��`y�qr ' r � �. � ' �� ..t n ��'�itl}�i��Xf�*'.�"�. ++' s r G 7� �e� 'S 6•_ a � ..A' a t . � .�' w - ..�5�1 Y �1.'�''�'�i,�c4, � � .��I •'�i �� .. �� i4.. �-iy`�F�, '�'� ~.� .11 .�ac+5��c,�dtzt"s+'G'h�r.� ....�+'�twti' l��..�J�,+ ��i� ! :a s �' .�..1Nc f-�. '1 4� r '�'' .�: � = � �t Y�. ��+ 'S44 M '��e f.-aC.t +.S �..r � ...ic p�''�.iy�s� ;�Y. :�.F-Kj el'r.• ,��,��V.�,•+'�'•i�rW'�'�..�.': .y y�M+�.�;,`ys--� t. nx4�7 . �S�Xfi' '''"�.!"'t"..:d-•Yw��. .cc F-' ✓"i• + . y .. �p� i �-i. p'.4';'. . �1.�.ye�w I � '�t � . . A ' y r�w_i� �5 ^� T ��$ •.l• . . ...« . . �._.. _ ��f • � � �� .....'r+�'�"S • .. . . .�. �• .- .-., Y . .. , . .. ''• .J ` . . l � � �I°. �''y�p!'rO. '��ZV^�� rJ' r•v'�t '°c:,rr tr.`.(r+��_L� ..., r� : �. _� { -�. { , i-� .. - �., ��•�� , �;��H.p�;l Iryl.> a�<+J�� .......Y t� �L.�L. t S y -.. ✓,- ++. � � � r j .� ��. d I�',� . Y ' � C� "r+a.:r-`..+T�4�.�' .rc-+s,�t�4,..u�-s Y �Z w ✓ r z ti _ t. . � ti�~��cd �'LTwi, `t r'r*7��'t`'�� .:5�{' �i�",[�.�`,.tr,'tt.ric�"ri�r � .f .� -t � � �� ° g rS .. 4a`SC. .. 7 S �.\ .5 ..S Y- .� f � ! 7 �1t 1 w � i'�-7•v�rti 3 . ,N �!.�� l"'�ti..J F. . . r�� t"'y'y_ 'c. '�' � "S "r''f 1� r �.�+'�'.76�.�l y ."i. � .r�. \ � i �• J�i:� -af. �. � Y �'<<� �" r J —{.. {, ��j� t w:� � t �p ,,,e S�tr!`Jf `,�5� t ♦' +t yY y .. � €, J��t t F,f yt {. ^-�.,�hy' j�t 2. ,��n .�,f d�'nx . ni� Z j t , � ^'7 i F S fi ��r.. T").. j"t .t, i..�i : ., � w'�' v ..n ..e h..�.,.�j� . ,y � .�('� �L .•�•�'T�: r � .�� -fi1?� r ei L. �'.�a+Y��C�° Stl �j wxC ^�C FyC�...� r +"R '4 � . r. �L�y�ti . .� f. .. � �v.. • . ...-1 .T'•"�t � j`��i. +'�'� '� e-f.a „E�f�bs+�— .-e. '�:��'� ,�, a. �i.= 'x` F.i. . .�- r�r M��,�,�, r�_,x,_� * F'S; K. �,�.t �;'•s,3'C 7c • �a � c.�� r . ,'`� '�i• ��,fi�,-< ��' L� +fw��Q! e �.v,� ��r�L e.w �r . � � - ar . "'.�iY._t�'..Y.�..x`_...w aY..�.,�:.at �.C...�r'9:,1__..w...�ats.1R.. �`:L ..��.s�.?J.�.w.e • . . . ``�`"`..'i'' «t":�4)e: '� ' - ' � . � `� �ti-�. t»�:.?•; L'.� . ' ' , . . , 9r' •y:'�j�fy.��'i",�".Z • � � . . �jp^ ';rz n..X'. , 7\ r .i y LL' �''i., . . � S 't �':��Y„a '! �f. L Ed 2d �" • ' NEW YO BUR('iLR `�4 'r .�:�:::; x . . ��:�� .. . . � � - .� � �1 � ' . . ^Me.;'�.,1 �-,i,�.i�..i «: .l. ry^f y�_ market and serve as a credible deterre , ��T :� � :..��, t inspectiona will be made on a *�`" _ ` b=""" '.e parts. �-�` . unannounced, even frequent, - eEular basis. Id., at 605, 69 L Ed 2d � ,,;, � ,�,,'�, �-;,: • �. ',v:_c=. �"�� spections are essential. In this co 62 101 S Ct 2534. Thus the vehicle y�4 �''��' ^�=- oldman� ,� . , . E } .! {�,�� :. o/1t�ection7 ��!. _:text, the prerequisite of a warr t ' mantler knows that the inspec- i �- `:`} z+ �: ��. WLIIISP.1 � ��:� � �. il. t' .d'sZ'�v' .�� could easily frustrate inspectio ; ons to which he is subject do not ;` � ,, , 1979), �;. and if the necessary flesibility onstitute discretionary acts by a E;;.;_,_ ;,-� �x < �ed that Y�` -to time, scope, and frequency is overnment .official but are con- . ; "° ` `7� .�ti . h „��'.r.� �ehicles, ��:: . be preserved, the.. protectio ucted pursuant to statute. See Mar- ' � ��. { _ �'��: umenta- ��° ; �'�,, � .:, �� afforded by a warrant would hall v Barlow's, Inc., 436 US, at ��., y r ;a�. . ich pass ��: negligible." 406�US, at 316, 32 32, .56 L Ed 2d 305, 98 S Ct 1816 . :� :� t."�. vehicle] ��' ��87, g2 S Ct 1593. ' senting opinion). Section 415-a5 � ' �s r `. � � �'. �;i,� � .. . . . ' �y.. r ♦r :m �r;: •�o�Y k.t: • �� ' � o sets .forth the acope of the in- � � � �; � . � - �,. �.s� = !uce car '��: See aiso Donovan v Dewey, 452 U , pection and, accordingly, places the �-��,. r::r;' ,• �,�� prevent at 603; 69 L Ed 2d 262, 101 S erator on notice as to how to com- , =�° �'` becom- � p '�'�' - 2534. Si.milarly, in the present � ly with the statute. In addition, it ` ` �; � :les.and - a warrant re uirement would inte - � � � q otifies the operator as to who is . , ,'x � �`" r r��, .: id desti- �:' fere with the statute's purpose uthorized to conduct an inspection. � . ,,,.. . : deterring automobile. theft acco - , ;= �¢f�,�; 8��_ `- plished by identifying vehicles an Finally, the "time, place, and ` ; �.• `� o " of the ins ection is limited, ' -�' '=� parts as stolen and shutting do Pe P � z >,;� �.,..�„ .ant t° nited States v Biswell, 406 US, at ' the market in such items. Beca r further � �len cars and parts often p 15, 32 L Ed �d 87, 92 S Ct 1593, to � r =--a = " '�; novan v lace a ro riate restraints upon ;;'�x.=' ;;.��:;:�;>;:`:`�" � � � . quickly through an automobile j PP P 4 ��_ . t r=: � � yard, "frequent" and ."una e discretion of the inspecting � Y.,� � :.,�-�; �' nounced" ins tions are nece Y `''' = �n these , pec fficers. See Donovan v Dewe , 452 � �c .� �, � ,T .; �ved by in order to detect them..In s S, at 605, 69 L Ed 2d 262, 101 S Ct �- L•_�� :y i-� Biswell $�'P� � �cial if the regulato 534. The o�cers are allowed to con- :�;;:..;,.:. '` � .�� . ;p�� • scheme aimed at remedying this m uct an inspection only "during[the] t �` ; --�r '.,� jor social problem is to function ��' �d usual business hours." � -.x ;�� .;� :: all. 415-a5S1 The inspections can be r� '� ^I� s; : �ffective � ` . ade only of vehicle-dismantling -{''' :� Y = ¢ ' � � Third, §415-a5 provides a "cons d related industries. And the per- ` _ - ' ;i�; erpr;ae of "' tutionally adequate substitute for issible scope of these searches is � � �-, : : �ability of �, warrant" Donovan v Dewey, 45 arrowly defined: the inspectors may F.. G , v�•" �� *� US, at 603, 69 L Ed 2d 262,.101 S amine the records, as we ll as "any , ,�z M� �,`; ;. ,r eale to 2534. The statute informa the oper hicles or parts of vehicles which ;.�; _ _ ..�: otor vehi- tor of a vehicle dismantling busin e subject to the record keeping �s ti' ;.`' _ r ip p�- � .�� : ,r : i rebuild- ` ' . � ��h 21. Reapondent contends that §41t�s5 ' s 'ons evea when such statutes did not `;�.,,:,.,.;:�..,;_._,�__r.,:, unconstitutional because it fails to limit th tablish a fixed number of inspections for a `> ' `• "' �ah°n° t° number of searches that may be conducted � 'cular time period. See United States v . �� ..'.�Y;-�� i= n' °8��e a particular business during any given peri ' well,406 U3 311,31 2,n 1,32 L Ed 2d 87; ,x ' '� '.: � �e Brief for Reapondent 12. While such limi 9 S Ct 1593 (1972). And we have suggested �%{"�'-'"`y�-�"-�`'°:_�*`, �ntrol of tiona, or the absence thereof, are a factor ' t, in aome situations, inspectione must be , ..,.''ti � "£' '•� repair of " �:.�.: an analysis of the adequacy of a parti nducted frequeatly to achieve the purpoaes � r i.,�:- 'y�`;r 1:: heir own ��, �ey are not determinative of th ' ,o the statutory echeme. Id,at 316, 32 L Ed ,�%sT�r s��"' : �'�• �5" . result so long as the statute, as. s whol 87,92 S Ct 1593("Fiere,if inspection is to .,��,+�.,a� .��:�,�'�",-,.-,'�� : �K� 'Yk � Y k placea adequate limits upoa the discretioa effective and aerve as a credible deterreat, �a tiv -��,�, 982r Nev - the inspecting officers. Indeed, we have a announced, evea frequent, inspections are ��,, f "'�„� -- • proved statutea suthoriziug warrantless ntial°)(emphasis added). • r�..: ,,.� , . -a^'^'�„ ��...�: . . c .Y.s„�F. . � � y� r t; 5. {.,. 619 • ��z:� ,��X^�Y �y,.`>� r,<tc.,t . . �r°�.,� . L .� .� - , ' �^-t.:-r'.� .w,�rs,+t^� . . . ��:�:`cv'6qr,s.-��,�_.�y: I' F� ti.1 '..a i � �- ��^-r ��:. � �4�, ;�.�. c, �.�r. r r�,x-'`�1 Y.�x s. ' c'. r 'u'F'�- � �+ � ..�' c i+`fa�• v. :+':•. "` t.f^r �. i.�..''��3 .r� ..•1 -3�1,,,•�xa.,°��.f•• f ...•.. . �,sy�e /.�f s��✓y�e .�. .£', 'ts'^iWhr'�'G''4`E�,�...r ..Cr KK L y..ca '4�"'�.•s} 'io n: l��i,y�_ � ,- C• ��1�`� d_�T ,Fa �` � 7.T�� v .0 �t . R �♦ �• F y'+?'� C. ., y � �y f,� . �' ; R� . .. "�'• x � � � � s ��y.�f�� ; ,1�'7r �t � �-r tr �e� � ��w � � . :... . �r yr-L yn,y .Y"' 2" 1 �� T _ 'SS'� 3.f .a � 7�.. .r 1 !.t�'i °yS.i ._ � ryT.w �1..L:'�` 1��, c✓_ 3 I��y {r S� G. �! k�f f.�.j� 4T A.�,iit� n! . ., s. . ,_ , r.f`�l '�L .r ' .✓ ». � . t ' "r��r'?�s�_.��'� .i"�:rz' '_ . . "�:.a::;�. _ .>:� , _ , ...- • � - _ , ,•�.y 'I L. . "I `1 - �i•, � '.1 � � . . � � •. . . � . � �f, �. � .I � { . .. ' . . ' .• ,' � f...' ✓4 � F , �. . . . � ' � � �: � + :� f. •� , I r y,sr'( +�.�l t�< � jn • _ Y--�♦ + .r • _ �,+ .- f�� : ' . 'f . �' ;' jy � -r .. f„ : { � . �:. i�� _ �►�.i. ` r� t�� i )'.. . q. . . -�.i � ��i/{��ff7� , t _..- :a > ,.�' �. .Vs" . • 't � T - � . 'L�t ♦� � .n � � � � +� y; -h .r e i �i�' . - ,. �.�� t .�C?��_.1 y ♦. : '''ti ..; � �` • � �l':.. � ,j"�`� �'Y�� 1...�a� o '-��ti �. � .�. ! � .._ . _ � . . . ��y_„_—,._.. __.+ ..� s�.�=�^�.y��.1i��z.�.�:.."��.�Yaa��rli.l�l.i.ra:. �.r'_'� �"`adi'4-1_��s.:_4,u._s`�f �•'�..ty'��,t-"-'•wf,�`='i�-ti�.:.s+L.�-`_.a<�.T�..C.:-�.. � U.S. SUPREME COURT REPO 96 L Ed 2d NE requirements of this section and same ultim p rpose of remedying and also� contributed to a which are on the premises."Ibid.'� the social� �ob m, but they have the same ultimate purposes � different s si ary purposea and penal laws were intended to � prescribe ' er nt methods of ad- This case, too, reveals tha [2b] A search conducted pursuant dressing th !, pr blem. An adminis- ministrative scheme may h to §415-a5, therefore, clearly falls trative stat te establishes how a same ultimate purpose a within the well-established exception Particular b in ss in a "closely reg- laws, even if its regulatory g to the warrant requirement for ad- ulated md try should be operated, narrower. As we have e: ministrative inspections of "closely getting forth �rul s to guide an opera- above, New York, like man� regulated" businesses. The Court of �r s condu o the business and faces a serious social prol Appeals, nevertheless, struck down �lowing go rn ent off'icials to en- automobile theft�and has a : the statute as violative of the Fourth sure that t ose rules are followed. tial interest in regulating t: Amendment because, in its view, the Such a re la ry approach' con- cle-dismantling industry bec statute had no trul administrative trasts with at f the penal laws a Y � this problem. The New Yor purpose but was "designed simply to �ajor emph is f which is the pun- �; �� laws address automobile t give the police an expedient means ��ent .of ' ' 'duals for specific • p��g it or the posse: of enforcing penal sanctions for pos- acts of beha or. stolen property, including pc 'session of stolen property." 6? NY2d, In United S tes v Biswell, we by individuals in the bus: at 344, 493 NE2d, at 929. The court recognized ' f ct that both admin- buying and selling property. rested its conclusion that the admin- y�trative an nal schemes can supra.�' In accordance with i istrative goal of the statute was�pre- serve the s e urposes by observ- est in regulating the aut textual and that §415-a5 really au- , ing that the lti ate purposes of the junkyard mdustry, the St� thorize[d] searches undertaken solely Gun Contro Ac were "to prevent has devised a regulatory m< to uncover evidence of criminality" �olent crim an to assist the States dealing with this problem. particulazly on the fact that, even if � regulati t e firearms tra�c 415-a, as a whole, serves thE an operator failed to produce his �thin their bo ders." 406 US, at �rY goals of seeking to ens police book, the inspecting officers 315, 32 L E12d 7, 92 S Ct 1593. It vehicle dismantlers are le� could continue their inspection for y� beyond d' pu that certain state stolen.vehicles and parts. Id., at 344, penal laws d t ese same purposes. ' . �• The penal laWa ottea are c. 345, 493 NE2d, at 929, 930. The response to the growth of a particu' court also suggested that the iden- I'et the re to goals of the Gun crim�. For eaample, ia lsss r tit of the ins po • Control Act er narrower: the Act �ended its definition of ��d : y pectors— hce officers ensured "t t eapons [wereJ dis- include the following proviaion: —was signi.ficant in revealing the tributed thr g regular channels "A persoa is guilty of grand larc true nature of the statutory scheme. fourth degree whea he steals prc Id., at 344, 493 NE2d, at 929. and in a ac able manner and �� when: [made] possi le the prevention of . . . . . . In arriving at this conclusion, the sales to und sir ble customers and s. �e �atue of the property e: Court of A als fslled to ieCO hundred dollars and the property cc ppe gnize the detection of t e origin of particu- motor vehicle, as defined in sectior that a State can address a major lar firearms. Id, at 315-316, 32 L dred twenty-five of the vehicle and social problem both by way of ad- Ed 2d 87, 9 S 1593. The provi- other than a motorcycle,as desnea ministrative scheme and through pe- sions of the Ct, �nCluding those au- one hundred twenty-three of such nal sanctions. Administrative stat- thorizing th arrantless inspec- NY Laws, ch bi5, §1 (McKinney 8 utes anii penal laws may have the tions, served the e immediate goals codified at NY Penal T,aw§155.30� Supp 1987). 22. With respect to the adequacy of the able times."Id., t 31 ,n 1,32 L Ed 2d 87,92 ��,e.g.,Memorandum of St� statutory procedurea, thia case is indistin- S Ct 1593. The Cou held that the statute ment of Motor Vehicles in auppo guishable from United Statea v Biswell. gave a firearma eale adequate notice of"the I`IY Lawa, ch 225, 1973 NY Lawe There, the regulatory provisions of the Gun purposes of the 'ns r [and] the limits of (McKinney(purpoee of$416-a"is G Contml Act permitted warrantless inspections his task." Id.,at 316, 32 L Ed 2d 87,92 S Ct sYstem of record keeping ao that v� of both recorde and inventory "at all reason- 1593. - be traced through junk yards anc 620 ��,�� '� rj�: � ��,.. ��.l�.�� z �a �. �rT-'�+'�j � K�.�WdK�c x iia,: 'bt"a.� 'rf � 1 a _ � .�_ ' r �",,.,,, �t r�yw�.�, � ,,. �z a- r ;a��ti: �a t :�r .�� '�.+ i' -' �•. _ �, x f J J � � : . ..r,s � a . � 3 � r �. . c . . �• - . . . � : � �- . . f ' �� . � y'fJ - -. .. .I� ' 'F ��''� j � �. � . .. �. .'. ! �� I [ . � J- -. _ .. � ��./.i+JFrws�yl. I��A.IhT'�ir�I.��"�2"�.L�.Y-�Y Sx�.Y^r'�t'P.+�'•!la! f��Ya��i�•i�I�}�.✓�:��lr ri.^'.1'[.YI+#.lil.�iF��1.C�'«... ..^.h .M fi�.is.�. r.>��- �` �t' ' �, '�.. �YT ~ rL��41Y�Asi 4'l�'T� s � _',s;y.c... . . �. t ; .. i .�.� � _ � T . .{� . ��: �.�� v� r =.. w 1�r+�" . f-. � �^-•t.�* / � . � i, < :�t� � ,r�LL � �t cE' ..y� `t � � ! a��i Y �4. Y ,,yy� .Tls yL!w'+;i a �.t�4, 's � �-:�. �� ✓ -.�i Y � ��r `- . �r w .. . .�?,J'r'Y�.t �r '�`! 'r . ri`.. v 'a ti- .k-�.. S' u *• y z � r � . � .� � ra�� l+ '�. �.}. '�. +• N'^"i��Y.r,.,r,.P'-r . v�',��{f�'rt,y 4•�7(�.}yr�.4it .:'" �M.n� i�y.i � ,ti �S Y1� 'i�� -c „Y �� v .r... �'^'n 2-). a�1+ � -,.,�. V :�., � �aty..��+�iti•�ZJ ar.Y .,y.�tr i t+f~� ��,G !' � �. , •v �t :;;:�� f� � r� {.a'�.r yl Ly. . - � .�.«^r . �-"ys +�-lv . �F-'p �d Y � ., 2 .. i,�.,,,y ` t � f . F „� . Ar M{f,�F� �rl' i t. .. . , J r 1�i'(,k..� � ��,-�if' �r..�f l�Fl i �� - , 1.� ja v a _ , vt'hc.r �.� � 1- � �t�t'ti1 � s^*i�� ~'-n .��w.�� ~ 5�� .�` t� +..;� °y . i � � L '4 �+..-,t !' °' , ��' r. `v''�' i s r. � �ti t �yt3 S f.,�� R �,��r .e.w� �� ! ir'"'-_.��t� '��q„'�C°'e �y'w 1� f" r� tr Y %f. >��s�1(�$'.'jk y�'ti`'_�r4.:r"k r .�`"3t:S-a�.Zsa`*7�t.��'' ` _ .r �'�`w° .. yr r • -'.�.. . . .wn�+u.wn t.sl..r•�.�.. i�`".1�.�-...-s:_._-.ar�.ra`'�'-�.�'.n:'n�S • l .t� � .�y-.• d: �y :2- S . . � . . ^. _ r �4' i. � . : �. .r . , .. i . � o't ��u.,I f ' s , t�'� �' � �� u=e �l�aa�-'r . t a �'� c.r C': . . . . . . �, .; . xi; c :' . . • L , ��y`4 ... �,f;. NEW YORK v �/� GER � �4 ::' .��_ Ed 2d �.;- . ' - 96 L Ed VVl . .. MAY •�,, '��s.� , f�. . , � '�° w�s.- . `' �„� ��. �� ` and also� contributed to achieving b ' ss persons and that stolen ve- ,y "_ � ��.�� ti d�g ` ' ` the same ultimate purposea that the cl and vehicle parts passing � ' �' ` A ,�. - have ;�•� p e n a l l aws were intended to achieve. h. automobile junkyards can � : � r� "1��; _ ,f ad- id ntified.'* In particular, §415-a 5 F� ;� t� ,.y; '� This case, too, reveals that an�ad-� ' '"'� as esigned to contribute to these , .� Y. '�,��.---. �n'-R' -� ministrative echeme may. have the � � explained at the time of its 4=' =` ` '� ow a • same ultimate Purpose as penal e; . . �-', �'*,�:s;: . .. . . , r Y�y`^�: y reg- r`= laws, even if its regulatory goals are � bill attempts to provide , ; `3.' _ _~-��' ra�� " narrower. As we have explained s•�„t�,;�'r„- �Pe�' above, New York, like many States, en rcement not only through `;; , . 1 }1�_ ; �� m of law enforcement but by . �' '� faces a serious social problem in � � *� '': ;o en- automobile theft'and has a substan- m ' g it unprofitable for persons .�;� Y " ' h= �, owed. t� �{��t in regulating the vehi- � Perate in the stolen car field. ; � ; �?" �r'� � '. .. . � ."; t � .: La-.+_Y��,yl„ . r.��.�- :� t r,vl_ 'c'd '7° � , .ti Y`: C0II" � r. cle-dismantling industry because of The various businesses� which ,. , �,..� : '�� a '�'` this problem. The New York penal ar engaged in this operation have �'��' .�`. '` �� ' p�' � `.� laws address automobile theft by � b n studied and the control and � ` � �` y4 � s'�- �� unishin it or the ssion of re uirements on the businesses ;.=::w�.* �' ''�'-� P g Posse - - � s •' stolen property, including possession ha e been�written in a manner .: _ ' :t?� 1, w e _ bY ��duals in the business of w 'ch would permit the persons � �„ �,;:z a��f�,�'. ��_ ,_ buying and selling property. See n 6, en aged in the business to legally r , ;�� ` supra.ffi In accordance with its inter= o rate in a manner conducive to ; % ^' � � � � est in . regulating the automobile- g d business practices while mak- � � ' � ;Y ' �� junkyard industry, the State also in it estremely di�cult for a per- `� .�� ; ~ '�7^':. �f the has devised a regulatory manner of so to profitably transfer a stolen ..r � ��'y`�"� event �� .-�'l:� �� dealing with this problem. Section ve 'cle or stolen part. The general � , z� .�r � ,� 415-a, as a whole, serves the regula- sc eme is to identify every person �� =- • : S�t tory goals of seeking to ensure that w o may legitima t e ly be invo lv e d k�, { .F* { �r;: �93. It vehicle dismantlers aze legitimate- in the operation and to provide a -. � _, ' _ .: _ ;,,�-._ �:1.' - State . , 2S. The penal laws often are changed in t uch junk yards are run by legitimate . = " ' P�• response to the growth of a particular type of inea rather than by auto theft w -d. �, • - = Gun crime. .For example, in 1986 New York ' ; Letter of John D. Caemmerer, Chair- - -r. '~ ` : .e Act ameaded its definitioa of grand larceny to .an f Senate Committee on Transportation, :_'~ .---°`'•`. .`�'-• . include the following provision: chael Whiteman, Couneel to Goveraor s '` ' ` .� � • • u e . ' innels � ••A pereon ia guilty of graad iarceny in the pr. 12, 1973). repriated in Governor's Bill �' �� ;� ��$ . �d ' fourth degree when he steals property and ack t,L 1973,ch 225,p 15(1973 Bill Jacket) .: € � ' � ii when: � bill establishes much needed safe- �• ? � S� � �r �n of . . • • • • • } - for an industry which can be readily '4'' � ; * `:t : i Snd 8. The value of the property eaceeds one �by �� g to dispose of sto- `' � � �s _ xtiCU- h��do llars an d t he prope r t y consis t s o f a 'n tomo b i les or au t omo b i le p a r t s");L e t t e r `�� ;�� :�,". _ 32 L motor vehicle, as defined in sectioa one hun- f P ter M. Pryor, Chairman of New York - : dred twenty-five of the vehicle and tra�c law, � ��e1 p�},�oa$aard,to Michael �-A �r r�=� 4 ='4�,'; pTOVi- other than a motorcycle,as deSned in section • m�� unsel to Governor (Apr. 18, i� `' r ; ' � 38 Su- one hundred twenty-tl�ree of such law." 1986 973,1973 Bill Jacket,p 6 C`Organized crime �,.�a�',r��.;,, �:.,�.; :: ��_ NY Laws,ch 515, §1(McKinney Supp 1986). the junk and salvage industr9 as a r, � ;`' _ codified at NY Penal Law$155.30(McKinney nv nient staging ground for illicit activities �. { .- ry ;.��,;. B�� Supp 1987). n rning motor vehicles as well as for oper- T; , �:'� � '�'�°; l 8 T,9 2 � �.��e.g.,Memorandum of State Depar6 atio into other areas. The proposed legisla- �� r t .s�� ,�t`'" ' statute ment of Motor Vehiclea in aupport of 197 5 tion opens t h e j u n k a n d e a l v a g e b u s i n e e s t o ,� r-� �.,�� . of"the . 1`n ��, ch 225, 1973 NY Laws 2166, 2167 . the tiny of the police and the Department E�x,�, �u—;,�y �'�- �� of (McKinney(purpose of$41b-a �s to provide a of tor Veluciea therebq reducing the poesi- . -:;�:w.".;.:-�v:-�:Y::=.��?;'� r.. {A,,�-r-�-� �:F ►2 S Ct system of record keeping so that vehicles caa bili of utilizing such dealerships as covers ��f `'�� : be traced through junk yards aad to assure for ert businessea"). . ��n : �:' 6�� t sn K NL� f�� - >.:� �_ - C-: ' �. - � ' -i ,ra,r„3'-'>rr'' ".J��: . '_ . ��. Y. ._ --?�.:'s.i��Y. y'�i �� z ' ' t _ j ..:.*T' i� . . . � 1�r-�-\ N 1 .. . . � „�.. � [ -. . . �J N: -. . �l: '+�'� f { 1�j. 4V � . tY'�4 r.!S' {. L" .. . � . . �r4 1r �..-y.. �'y,y .� +,� �' a. � { ,, t'�s. � �-,rx�E.,�, : , , �.. . ��,� ,s . � �„ t .s , :r.in, ..� ; r ; . ,4._i .�. �. .r i rt,��,i, �.J+. J � �" ....� ��2#�4�ay,�+,.�3.{,4 ,✓ dn i+Gft ��V '✓v5 a„w -s-�a 1'2 r�.,'£f �. c : L J 1a4^.. + � �: t i:t .. . � �• .� ��^��.� ,» r�HS ��ty :�.C��r',�p.��t' '�c`�� .. �..:,�>� '"'., ° z��. �- �a::�. . ...y�fy� �� ''c�:�� Y' t s v. � � .n �s i., y . `' �. .a . S'i r1' xo ,.i � _ '..�a a'i �.�,� �I.e�.. �,�r:. S.,��,;.er "��`��'� �C �� r.! ��-'j' ��`jr . �. .. �.. .... ... . .. rs . . .. - . �._. . ... . - �. . .'�. -,-_._... _ . . ...._�..v�'R_°.S�i.�'C+f^'x..v�3�'�..!tl.�'"��f`d"r. �� .t�,z . `,�.,, «-L�.��`�..�i.7r:�tl'.�'*i=��v.:- .��r�,'J'.iFy:�`.�i.°�,;�`yy`Se��" ,r�,' '��" �:.+�' w�s�!'r1;a.':.._�� .S!,jL�7�iL'k-y,,�,�1 ca,S'.� .;7.��e�'"'�"�'4"7. � :f �! 'b�1�y. 3'Y � 1� l�� :Y �'y<,wT.! h � ;J� (.i" �t.Z� ,a i. f� �t.�: C��' aati.l.�' � � ��'i�'.�� ~ r Y r F....��+rLs,�,c�`,•..�e�;,t•+��'! =KCr�i�t'� _ .»�f Ye.��iTt.<('�(�J V...f+I"fi `",�rfi..: t. �„C'Skir?"' r�'��•�2'��'�'"'.r+��,�, �s�.�r..I, x �a,-+[�`•`"`�.•�.( � L. i -'r�� , � . .w _:. �' -~S...i:�Si�'��-sr,y�r��. ';a. *-�o°'_ �,-`�t ? °y�"'�`•� ,�`•' -�++�+�+..5'� .1��'�'�'y�i'e��4:=�'�' fi�t-c:t:,.��t '.5.1,•:��r`S•++s . � y��`5��,�s.al�sj.Ji i=„r =�:�.� ..- �. «�}��`�y'�t� --:+� �:�,.f ` �A.¢ �' w.�c�a'F'`N •t".�•�,is r,'aYic.T'^+L+:��^�;. ft:-?:.. ry.i� �ifr r j ��. ��' � � �� ,, t�'� �^� �� Yr •�`� � _ 1: , :i:.. ' � ��, . . i; U.S. SUPREME COURT O TS 96 L Ed 2d � : �`, record kee in m which will The re a ry Purposes of $416-a5 evidence of crimes in 1`.,i ' enable junk elue cles and parts to certainl served by having the an othervvise proper ( j be traced back to the last legiti- ins ' g fficers compare the r� inspection does not :; � mately registered or titled owner. cords a particular vehicle dis-. search illegal or the , Legitimate businessmen engaged mantle vehicles and vehicle scheme suspect. Cf. t in this field have complained with parts ' th junkyard. The purposes Villamonte-Marquez, ��.' . good cause that the lack of com- of ' ing junkyarcls in' the 583-584 and n 3, 7? L ' ! prehensive coverage of the field hands f le 'timate-business persons S Ct 2573(1983).n i ; has put them at a disadvantage and of t ing velucles that pass ��ly� R,e fail to ; ; with persons who currently are throug . t� se businesses, however, � tutional s cance i ; ; ,able to operate outside of statute also ar se ed by having the officers 1� and regulations. They. have also ex e �operator's inventory police officers, rather -�legitimately complained that de- even he the operator, for wha� trative" agents, are I' = lays inherent in the preseat statu- ever r o , fails to produce the po- conduct the §415-a5 : �: j tory regulation and onerous record lice k.'� Forbidding inspecting of- significance responde -.I keeping requirements have made ficers o egamining the inventory �� •� in the role of police o :°. � profitable operation difficult. - in t ' si ation would permit an cers of the penal la � � "The provisions of this bill have �e� a vehicle dismantler to off'icers' power to arr been drafted after consultation thw th purposes of the adminis- other than violations with..respected members �of the �a�v sc eme and would have the trative scheme. It i: ' various industries and provides a� r t of subjecting his coun- portant to note that : ';. � � terp "w o maintained records to a cers, like those in I� [sic] a more feasible system of con- more xte sive search'" � numerous duties in a trolling traffic in stolen vehicles. associated with trE � and�parts." Letter of Stanley M. Nor do e think that this adminis- work See People � ' Gruss, Deputy Commissioner and trativ s eme is unconstitutional Ny2d 210, 218, 352 ' Counsel, to Richard Brown, Coun- simpl be use, in the course of en- , (1976) ("To consider sel to the Governor (June 20, forc' it an inspecting officer may the police solely in 1979), 1979 Bill Jacket. disco r vidence of crimes, besides Accordingly, to state that §415-a5 is �ola ns of the scheme itself. In � "really" designed to gather evidence U� S � v Biswell, the pawn J�tice Brennan, � to enable convictions under the pe- Shop pe ator was charged not only tice Marshall joins, nal laws is to ignore the.plain ad- t7°l� olation of the record-keep- . ministrative purposes of §415-a, in �g p ° � ion, pursuant to which the �, �,e legislative bi: ins io was made, but also with � � g�e�, �d $415-a6, in , � general,and§415-a5,in particular. o�e i� tions detected during the �(9�� that the New York Legie If the adnninistrative goals of ins tio , see 406 US, at 313, n 2, regulatory purposea for e- §415-a5 are recognized, the difficulty 32 !Ed 2d 87, 92 S Ct 1593, and trative scheme and Wef "pretext" to enable iaw� the Court of Appeals perceives .in con �te Of S feliluTE to p8y 8n OCCU- {��to gather evidence of � ; allowing inspecting officers to exam- pati al tax for dealing in specific See supra, at —, — ' ine vehicles and vehicle parts even fire s �id., at 312-313, 32 L Ed 2d —, �d n 2�;s�e �lso� in the absence of records evaporates. 87, Ct 1593. The discovery of US—�—�s�L�Z (198�C'[� � Siven r. ; ; that legislators are incli : �.Failure to produce a record ie a misde- ute t a thorized inspection both of records ��and the Fourth Aa ! meanor, $416-a5, which caa be a ground for and ' ven ry, 406 US, at 812, n 1, 32 L Ed fu��ore, no reason � � euspension of the operator'e license, §416-e6. 2d , 9 S Ct 1593, and with an actusi instant inspection was ! Thia suapensioa eervee to remove illegitimate � ion of a dealer's premises despite the for obtaining evidence c j operators from the induatry. fact at dealer's recwrds were not P�I> tion of the penal lawe. . ' 26. Indeed, ia United Statee v Biswell, we erly ' ed, id, at S1S, n 2, 32 L Fd 2d the inspection was mad � ' found no constitutioaal problem with a ata� 8'1.9 S 1693. the administrative eche ; i • , � 622 . . I ;i` I . l!t �-.i`r. � ,,�,':�� '� �.�� r � ,r- -. . '��.wl� iyqr=. .t��{,;~r^s' ., . .��"�'L�` T .� . .r- �'yt�. .fl� '. � � �'t. � �,�e „pr' y� �'y�'�S' �yrLKf�.-�,�.v ��yy..��r Lk�.Jt.a,+ik.r.��.��i .I'�' � ' �!kY r� fyM• i �, .l �j �y.�Y�/= . ��..�;f, , i.�. ~ a' ��1�. 'Y' ��'� ♦,�=ai��1�' �',LZ'Y'Z .t,..{.,� ra�.. ,r'�+ G2�C�.,'f✓• s•f'+n:<�.'�`: �{ �,Z a. tY�ev7lir,�Cyrti4��r'� `^Y:.7?i-�; !y�"� .'�1t,.."� ��-�.n��,,'��'°�i��.y,.�.��i�,'�✓#�-/.`:�it��+q-Y :.��;,'r'-,;�, t• t�? �,d,:?'p-;...c.�.`•-� �=k��;�• �,�y+ t1.r(+'�'�t i° ei`h��.,_y�fi�.• J9� i?-,/'!4 v+ti�'` ,�,,-�+: �c.,> .?.r'�;�"�`" 's � :Y + ' _� � ..� !� .-s.,� �"2 1"Y' ,�,ax .G� 4. 3, '�-.�- ��-'• � s � �. � ,f^t ` i:� f;�_�{yl,�i�- .1 ��`j�y�•.�:.�i�+{"�:.0 �� r��r • ��'•�•' f J�� -p7�! `iS 'Ys��t. r s �i v� . a +» � �+��'•�,�i'7 4'?f- '`a'� - .,.a'�'r,"�4.r� •�z '�w-� r.r �C-=+��;,,s r t��.`t�� Y'�' ,.�' .h`-�?�,n � �a� F. +t�;. ...e r� veS: ,✓,''ir . . .�. .s S•... s• i �'> r5 .__ .... �•'�'`. .C..* y ..�';.e ,��",'' S,�.n . . .w.�l.y¢-v ... r � � f� /v f: J!r .�t Y:� .._ �,y;,s:- _ . , ,, . ,._ . .��'7. - — „�- � ' - z ,;�. J v . - Y_. s :�' -.' r.�� J+ r .. � 7�t�1�, ,Sfr • �r .cw 3 a�R�"t •,�, i� � , `X r =r _ t 1 < r. r ' y�ft �k,'b�.r�-�.r,~•� ��W�},�C,f'r.!'+✓��`y-�i -i r " . �"" � o+ y ,i �- .� C y r: �a'� r'cl"' � .•t1;vr -a • r . ir�.��`' .\ ii�e�}�. a•,•t+.w.'f x:r . _ r r^' k.aC 4 ,.+..v; Y- �✓d,.z � � _ . i��r✓.P� �}' ,��.j,-ta�'S'�Fr�,ytt .r:Ts�4Sr �.i'�:<�y �tiae�i'~F�4. '� f w F'. .�}��" � �r f 7.� �r'.e .. .�� . .�'.. �� x'�'�i .N ��:lh� �._� 7�Y :� � : ✓2. 5p `,r .l ,"� - .� :f r•'..<xL �` ° F w> �� 1 `� .a'r 1t ��' r� 1"a i-:�{. '�. y - w."`'�i'er � �'�e.a-�s'�:::.`;.�+.:�r�~xB.��"�y_~,,,��••��-t. .Y 2'�., . r' , i� ,� ., - 's°'...,�w..'+u�.crt:i i , tr f�k.• � Y'• �`' . . . - i . ��c 't.,'s -��'�,i � . 1 7• f . . i> �..t �Y: ri ? � � ' :_'Z,; .:�.{tQ�,•.•'.�.s'.. � -. . � . :'��'�i?7.'':.,t.p';`,y:�..' _ :._-:t':�,,,,�.: . . . ,� .�,. ��v 'i�• 3LEd2d �� ' .. R' NEW YO BURGEB ` °''r�� . . *� . �r a . .1< � - 96 Ed 601 ' ' * ' .. i ' �415-a5 ,�r��-,�'.-�`-;�.„-f`. evidence of crimes in the course f d criminal• rocess is an unneces- �.:r„�,t.�:;�'',,: iving the �`. an otherwise prnper administrati distortion"• see also ` ' � the re- ��- �' )� ABA Stan- ��{r:��'� ;,�., inspection does not . render t ds for Criminal Justice 1-1.1@) ''"x:�'" � ucle dis- x' search illegal or the administrati . d commentary (2d ed 1979): As a F''�` t �`Y=ij i yehicle '�'- . ..� .� �:- p� �, scheme suspect. Cf.�United States ractical matter, many States do not �y � ;. �•� :�,, : �,-�e Villamonte-Marquez, 462 US 57 , ave the resources to assign the en- �} ">`f {_- : �� 583-584 and n 3, 77 L Ed 2d 22, 1 orcement of a particular. adminis- � �'�'.;��"� ; ��0� � � S Ct 2573(1983).�' . rative scheme to a specialized ' 4 .. " s�' -: .. F .�r ` - �_�': :iat pass ;��, ency. So long as a regulatory ;r' '�,� <: however, ,;$ Finally, we fail to see any cons r cheme is ro rl administrative, it � "`��``� e officers '�� P Pe Y ; : �- ; tutional signi.ficance in the fact th not rendered illegal by the fact '� � ' aventory �-z?' police officers, rather than "a ' `�` s�" t the inspecting o�cer has the � � , 3'.� = �r what- �f: trative" agents, are permitted wer to arrest individuals far viola- ��"" "'� �'�;�� the po- ��.: conduct the §415-a5 inspection. Th 'ons other than those created by the ''� L: ,=.� `'�. cting of- significance respondent alleges li cheme itself.� In sum, we decline to �K '�� `�� °�y ' lv�e��t°�ry � � in the role of police officers as enfo - pose upon the States the burden �,-�'��;;:�.;�� -q-''y�= cers of the penal laws and in th . f requiring the enforcement of their � � r :- Y �t �'�� itler to ' �`` officers' power to arrest for offens egulatory statutes to be carried out � ` ` i'�.� r L.h � �' other than violations of the adm' ' y specialized agents. ' '�' ' ° ''� r ' = �ave the F�L �, - w � trative scheme. It is, however, � -��..:�,,:=:r:,: �is coun- po�t to note that state police o �T ' '"� rds to a _ cers, like those in New York, hav , ' ; : , ,,��Y` � numerous duties in addition to thos Accordingly,-the judgment of the y �- associated with traditional ew I'ork Court of Appeals is re- 1 �� -��"`" ' ' �dminis- � polic e�� d�the case is remanded to � " `' -~�" � tutional work. See People v De Bour, 4 at �� for further proceedings ` �_� =� 4 � ��- s of en- NY2d 210, 218; 352 NE2d 562, 56 ot inconsis t en t wi t h t h i s opinion. ~"'=° "�-""'�'r`=F>*'= �er may . (1976) ("To consider the actions o _��= ";�=-=a.- _ :. ' � �. �i...h � S+J: besides the police solely in terms of arres It is so ordered. : �: = ^*'<. ~ self. In . � ��:��:_ �r��-, ,;. .' 3EP PIIVION . � L= - `�� . .-� � e pawn . � . - � , Q :ot only Justice Brennan, with whom J � tice O'Connor joins as to all but � `' , ; ` ' �d-keep- tice Marshall joins, and with who i art III dissentin . w-� ^� _ , • �� .:�� . �S t...4-. ich the = 30 with tt 27."The legislative history of §415-a, . ' e search here was truly a §415-s5 inspec- `�F�' - .. , y '� ing the ; Beneral, and §415-a5, in particular, r.ev � n, the Court of Appeals was able to reach :. ;' � � `� that the New York Legislature had properl ' this case,as it could not in People v Pace, 'r. � � '�'' _3, ri 2, regu1atorY PurPoees for enacting the a ' NY2d 684,481 NE2d 250(1985), the 9nes- ` = � � - �3, Sric1 trative echeme and was not using it as t n of the constitutionality of the statute..See �F F • ? ,.. II OCCIi- "P��'��enable law enforcement sutho ' 6 NY2d, at 34&343, 493 NE2d, at 928; see �'� 's ` SpeCifiC . ��gather evidence of penal law violation n 7,supra. r t=� '' ; -:` ' Ed 2d see suPra. at —, —, 96 L Ed 2d . - - ;� � � —, and n 24;see also Illinois v Krull, 28.In United States v Biswell,the search in :��, y. }�;, , - ery of US- -,94 L Ed 2d 364, 107 S Ct 11 q estion was conducted by a city police officer •- ✓ .-y, ° ° (198�("[W]e are given no basis for believin d by a United States 1�easury agent, 406 . :'J`` �'= :`"" :` .s,....;.,,_ =,, �� that legislators are inclined tc subvert thei , at 312 32 L Ed 2d 87 92 S Ct 1593 the `�:'•°. .'�'• `�''•-:'"'-'" 32 L Ed oaths aad the Fourth Amendment'�.There' 1 tter being suthorized to make arrests for tt��'`S-�;K.;.�,�*s��j �� i actual furthermore, no reason to believe that th f eral crimes.See 27 CFR§70.28(1986).The • • : �.=.-_:>�:-�,� - �� e instant inspectioa was actually a "pretext ternal Revenue agents involved in the .� ;��y� °{ _•= ot pmp- for obtaining evidence of respondent's viola uch in Colonnade Corp, v United Statss, °�'`< �'`� +. �# := L�� . tion of the penal laws. It is undisputed tha 8 7 US 72, 73, 25 L Ed Zd 60, 90 S Ct 774' �:;�r � '"'�>.r Y .�,e�` : the inspection was made solely pursuant ( 70), liad similar powers. See 26 USC �,-+==��•'�•~' �= the administrative echeme. :�� ` �;=��+'= -.�,r�?''��f: . In fact, beca § 608(a)[26 USCS$7608(a)l• � %",:�;�,,s�:�:°�:::;�-�:::: z.r - ,3> 623 . f:;�.A-� •– w�•�'' . -..L��;yT ;t;V..�` . � '- .�' c.x- .- F �e . . . ,� - ,.. . TI��+:'. . F;,� +:% c - �_ � . � �I ` : . . , . . ^%fS Y. . /`+. .'^�. ,' .. . . ' . �+=1s:„.i:/y ,,.ir_, �,i^ . � . � � Ii��;...s'-�i�Y �.':Z .'-:rt. , . ' „i�'+.t!. ,s J . '7!"v.:.:: . . `..� � iT'S� ;� .µt�f ._� } . ' ��v �rY. y + � },�-. . y f}^� c ��. Z� ".�S- y7'1��..-r�. L'.�� 47 „j JZ"T'4 ^l) l+L'3C yS�`. s'Yp_ `A t d "f 7.-^j` '1 !K�t i - - ��a��k'Tix� �+ 1Y�R��'ly�C� +.� ^�'.� C_n'n� 3',��...�N` ,c. 'CC a(`+� .�k ' tS� .r �. �". vr�..i.i�,.r� y. -S: - le*�} . I .�.�.�a S s..t� ! � v t r^' H f } ,�t� � ' j�l'L��.��•j+'�,r refr,�yY«s p '� r+ y.M�i,� � S -c � �� . !�1+r K� n� ��."a .� 4._.i^r' 6Y�.*.. . y i t ' C �` d-f. !4 �'Ai�Y'1 '1� ��i`�-'IL +.Y�i� • ��l'�f � "�_ �,� �i, L*.y t 3 . ;e�� r • �y�'��'s.:wfw5-,�`,r,� i i^� ,'n'7,'�f �y" �-" ` `': � ��,. 1 ar±-.F�L ttG�,,.�... � - „'�1eS3��! .� _� Y �� F` ' ��'�i�"{� �'�.-Y- s �` . � "Y 1 '.r,e +�.' r'� � r""_�. �". s „"'�."J i ^- � c .p-..�ii! �. '� ^y r �L��y�'run.'S7 Y�.r a�.i;'i.rPai�'.rw"��4G-� � _� `-� _ .� ? �„ �,i,� . ,�q f�r�„i` Y . _ _ . . . _ f . �e:�:� S .� .1J.1Y.:A.PY..s.f�..... ,�ar....�,:-._....._..�z..ts....�;':.�_.,} .. _�'...._....!�..,..1^i.�::.,._ .�..,°._.af... . MAUN, GREEN, HAYES, SIM N, OHANNESON AND BREHL ��f,� _""� ATTORN YS AT LAW ��ji1 y� � v�r � SAINT PAUL OFFICE MINNEAPOLIS OFFICE ,��••R�� 332 HAMM BUILDING SUITE 520 �`� 408 ST. PETER STREET 3500 WEST BOTH STREET SAINT PAUL�MINNESOTA 55102 MINNEAPOLIS, MINNESOTA 55431 TELEPHONE:AC-612-224-7300 TELEPHONE AC-612-835-9550 TELECOPIER:612-298-0915 TELECOPIER 612-835-3463 November l, 1988 St. Paul REPLY TO� Howard L. Kaibel Administrative Law Judge Office of Administrative Hea i gs Fifth Floor, Flour Exchange u lding 310 Fourth Avenue South Minneapolis, MN 55415 Re: Hillcrest Country Club Dear Judge Kaibel : Enclosed for your re ie is the original Motion to suppress evidence in the a ov -entitled matter. I believe you were provided wi-th a co y f the Motion documents at the hearing. Please feel free to on act the undersigned with any questions or comments . Very truly yours, � on D . Thomas LDT:vs Enclosure cc : Philip B. Byrne � � { ��' �"r,..._7`` STATE F INNESOTA ��/1�� CITY F ST. PAUL �� _ �� City of St. Paul, � Plaintiff, �� ; vs. NOTICE OF MOTION AND MOTION Hillcrest Country Club, Inc. Defendant. ---------------------------- - TO: Philip B. Byrne, Offic f the City Attorney for the City of St. Paul, St. P u , Minnesota. PLEASE TAKE NOTICE, t a Defendant Hillcrest Country Club, Inc. will move this C u on the 20th day of October, • 1988, at 9: 00 a.m. or as s on thereafter as counsel can be heard, for an Order exclud'n from evidence in the above entitled matter all evidence o tained by or on behalf of the City of St. Paul as a re 1 of the search and seizure conducted at the premises wn d and operated by Hillcrest Country Club, Inc. at 2200 E. Larpenteur Avenue, St. Paul, Minnesota, which search an eizure occurred on July 15, 1988, and commenced at or a out 8:00 p.m. and concluded thereafter at a time not pre en ly known by Hillcrest Country Club, Inc. Dated this 19th day of ct ber, 1988. UN, GREEN, HAYES, SIMON, JOHANNESON AND BREHL B n D. Thomas, #170252 3 Hamm Building 408 St. Peter Street St. Paul, Minnesota 55102 (612) 224-7300 A TORNEYS FOR DEFENDANT Hillcrest Country Club, Inc. c , ��i�� STATE F INNESOTA �� f�v0 CITY F T. PAUL 1�� --------------------------- - �� City of St. Paul, -�•! Plaintiff, MEMORANDUM OF HILLCREST COUNTRY CLIIB, INC. IN vs. SIIPPORT OF MOTION TO BUPPRE88 EVIDENCE Hillcrest Country Club, Inc. Defendant. ---------------------------- - INT OD CTION Defendant Hillcrest C u ry Club, Inc. ("Hillcrest") submits this memorandum in lup ort of its motion to suppress certain evidence. Hillcr s moves to suppress evidence obtained pursuant to a a rantless search and seizure conducted by the City of St. IP ul upon private premises owned and operated by Hillcrest. The warrantless search was conducted by the City f St. Paul, through its law enforcement officers, agen s, or employees, pursuant to an anonymous tip alleging Hi lc est was selling intoxicating liquor without a license. he evidence in issue must be suppressed because it wa obtained by overzealous law enforcement persons conduc in a warrantless search without sufficient cause. FA TS The facts relevant to H'llcrest's motion are generally based upon information pr v'ded by police records. For r purposes of this motion only, ', H llcrest assumes the facts set forth herein to be accurate. At approximately 7:45 p m. on July 15, 1988, the St. Paul police department re eived a complaint from an anonymous person. The o ymous caller alleged that Hillcrest was selling alc h lic beverages without the necessary license. The anon o s caller refused to identify himself or provide any additi n 1 information. Lieutenant Donald S. Wi e of the St. Paul City Police Department was immediately ad ised of this complaint by Sergeant Kline. Winger advi e Kline to write a report to memorialize the complaint i he event any investigations were deemed appropriate. App o imately 30 minutes later, the Police Department received a se ond call inquiring "what was being done about it. "1 Apparently as a result o the second call from the anonymous complainant, the po ice decided to immediately conduct an unauthorized sea ch of Hillcrest. The police records do not identify the pa ticular officer who decided 1 Since the second call lso involved an anonymous complainant and, according to po ice records, appears to have simply been a follow-up to th f'rst call, it is assumed that both calls were made by t same complainant. The prosecution has not provided n evidence that the two calls were not made by the same co p ainant. In any event, both the identity and credibili y of the person or persons originating the complaints r �na ns a mystery, regardless of whether both telephone call ere initiated by the same person. �- , the facts alleged by th nonymous caller merited a warrantless search. Nonet jel ss, the Police Department's chosen course of action was ' t direct an undercover plain- clothes detective to enter li lcrest and determine whether there was any validity to h complaint of the anonymous caller. I In order to more fully Ip se the unconstitutionality of the search conducted by t 'e Police Department, a brief discussion of Hillcrest's pre i es and business operations is necessary. Hillcrest is ali rivate country club located within the City of St. Paul h'ch holds its facilities open for use of its members n Hillcrest's principal facilities involve an 18-holl olf course and a clubhouse. The general public is ex lu ed from using Hillcrest's facilities. Only club m rs and their guests are authorized to enter the club ou e or use the facilities. At all times relevant he et , Hillcrest neither had, nor was required to have a li o license from the City of St. Paul in order to serve al oh lic beverages to its members pursuant to applicable sta 'e statutes. The municipal licenses held by Hillcrest in lu e a club license, restaurant license, entertainment licens � nd fuel tank license. Finally, the substance f the allegation made by the anonymous caller must be exa in d. The anonymous caller's accusation actually involved ,tw allegations. First, the � �� -" v.. ,�L�,( c°'-. �r caller alleged Hillcrest was s lling alcoholic beverages. Second, the caller alleged su ales were unlawful because Hillcrest did not possess the e essary license to make such sales. The police report writ en by Sergeant Klein after the first anonymous call indicat s that the police department never even determined, prior t conducting a warrantless search, whether Hillcrest i fact did not possess the requisite license. The poli e report submitted by Officer Klein simply states: I received a call to rep t to the watch commander, Captain McNeely. I arri e and he told me he had received a complaint fr m a party who wished to remain anonymous. The ar y told Captain McNeely that the Hillcrest C un ry Club was selling alcoholic beverages and ha no license to do so. There was no further inio ation from the caller. I contacted Lieutenant i ger, who advised me to write this report. He f r her informed me that on Monda the vice office 1 check with the license ins ector's office to d te ine what licenses are held by the countr c ub Once that has been determined a course of c ion will be undertaken. Thus, the police did not ju t conduct a warrantless search pursuant to only an anonymous t 'p. The police failed to even verify that part of the a o ous tip which was easily verifiable without entering o t Hillcrest property. Thus, armed only with h anonymous tip to support a warrantless search, the Poli e Department decided to forego the formalities of obtaining a earch warrant and immediately dispatched an undercover d tective to covertly enter Hillcrest. , A ENT Based upon the foregoin cts, all evidence obtained by the police pursuant to the r warrantless search should be excluded for the reasons set fo th below. A. THE ERCLUSIONARY RULE PP IES TO THESE PROCEEDING3 AND MANDATES EXCLIISION OF AL EVIDENCE tJNCON3TITUTIONALLY OBTAINED. It is beyond dispute th t the exclusionary rule applies to these proceedings to e c ude all evidence unlawfully obtained by the police fr the time they first entered Hillcrest until they exited 1 ter that evening. Virtually all courts addressing the pp ication of the exclusionary rule to administrative heari gs such as this have agreed that unconstitutionally obtained vi ence should be excluded from these hearings �ust as they wo ld be excluded from criminal hearings. "It is certai 1 appropriate to apply the exclusionary rule in admin' t ative proceedings when, for example, the police have ea ched premises known to be licensed for the sale of liqu r and turned the fruits over to the administrative agency emp w red to revoke the license. . . " 1 Lafave, Search and Seizu e: A Treatise on the Fourth I� Amendment, Section 1.7 (e) , t (1987) ; e•g• , Board of License Commissioners of the o n of Tiverton v. Pastore, 463 At1.2c� 161 (R.I. 1983) ; In t e atter of Finn's Li uor Sho Inc. , et al. , 249 N.E.2d 440 � ( .Y. App. 1969) ; Leogrande v. State Liquor Authority, 268 '.Y Supp. 2d 433 (S.Ct. App. Div. 5- 1966) . Simply, it is unif �m y held that evidence which is unconstitutionally obtain d must be excluded from administrative hearings reg r ing licensing matters just as it would be excluded from c im nal hearings. B. THE EVIDENCE IN THIS C S WAB OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT THEREFORE, MUST BE E%CLIIDED. The Fourth Amendment t he United States Constitution and its counterpart in the M nnesota Constitution prohibit unreasonable searches and s iz res. The Fourth Amendment to the United States Constituti n provides: The ri ht of the eo le to be secure in their persons, households, p rs and affects, against unreasonable searches an seizures shall not be violated and no warr nt shall issue, but upon probable cause, suppor e by oath or affirmation and particularly des ri ing the place to be searched and the person o things to be seized. U.S. Const. Amend. IV (e ph sis added) . The Minnesota Constitution contains an id nt'cal provision. Minn. Const. Art. I, § 10. The Uni e States Supreme Court has interpreted the above: "** search ordinarily implies a quest by an officer of the aw and a seizure contemplates a forcible dispossession of t e owner ***. �� Hale v. Hinkle, 201 U.S. 43, 26 S. Ct. 370 (1 06) . The resolution of what "searches and seizures are ea onable" is made on a case by case basis, determined the particular facts and circumstances that are r sent. United States v. Rabinowitcz, 339 U.S. 56, 63 7 S. Ct. 430, 434 (1950) . The -6 particular facts of this cas ndicate that the warrantless search conducted by the polic as unreasonable. 1. Hillcrest Countr C u Had a Reasonable Ex ectation of Privac as to it remises. The United States Suprem ourt has "*** recognized that the principal object of h Fourth Amendment is the protection of privacy ra he than property and has increasingly discarded fict o al and procedural barriers resting on property concepts. " Warden, M.D. Penitentiary v. Ha den, 387 U.S. 294 (1967) bo ks and papers of corporation are protected) (emphasis add d) In Katz v. United States, 389 U.S. 347, 351-52, 88 S. t. 507 (1967) the United States Supreme Court further explain d: The Fourth Amendment pr te ts people, not places. What a person knowingly xp ses to the public, even in his home or office i ot a subject of Fourth Amendment protection but w at he seeks to reserve as rivate even in an ar 'a ccessible to ublic ma be constitutionall rot ct d. 88 S.Ct. at (emphasis a ded) (reasonable expectation of privacy exists in a publ c telephone booth) . Like the telephone booth in Katz and t e books and papers of the corporation in Hayden, Hill r st sought to preserve its premises private and is, acco di gly, protected. In Rakas v. Illinois, 43 I'�iU S. 128, 99 S. Ct. 421 (1978) the United States Supreme C u t held that in determining whether a defendant is entit 'e to challenge that a search violates the Fourth Amendme , the Court should focus on 7- whether the defendant had legi im te expectations of privacy in the area searched. In Rak s, the Court reaffirmed that one can have a legitimate expe t tion of privacy in a place other than his own home. Raka , 439 U.S. 128, citing Jones v. United States, 362 U.S. 25 , 80 S. Ct. 725 (1960) (complete dominion and control o er property, combined with the ability to exclude others, co stitutes an expectation of privacy) . It is also well esta 1 shed that a person does not need a property interest in o der to have a legitimate expectation of privacy. See St te v. Kum ula, 355 N.W.2d 697, 701 (Minn. 1984) ; Ove 1i e v. State of Minnesota Commissioner of Public Safety, 40 N.W.2d 23, 26-7 (Minn. Ct. App. 1987) . Hillcrest had a reasonabl xpectation of privacy as to the entire premises. Hillcre t Country Club is a "members only" private club; only membe s nd their invited guests are authorized to enter and use t e lub. The club is not open to the public and members mu t pay initiation and monthly fees in order to exercise the' rivileges there. Before an applicant is accepted as a cl ember, Hillcrest conducts a substantial screening process. n short, only membership at the club entitles members to co plete dominion and control and the privilege to exclude o h s from it. On these facts, it is abundantly clear that H' 1 crest had an expectation of privacy protected by constitut o al safeguards. i C. OFFICER �INQER ENTE E �ILLCREST ILLEQALLY AND ALL EVIDENCE DERIVED FRO T �T ENTRY MUST BE SOPPRESSED. The fourth amend en encompasses searches for administrative purposes a 't does searches for evidence of crime. Marshall v. Barl w's Inc. , 436 U.S. 307, 98 S.Ct. 1816 (1978) ; S.E.E. v. it of Seattle, 387 U.S. 541, 87 S.Ct. 1737 (1967) ; Camera v Munici al Court, 387 U.S. 523, 87 S.Ct. 1727 (1967) . E c pt in certain carefully defined classes of cases, a searc o private property without proper consent is unreasonable a sent authorization by a valid search warrant. Camera v M nici al Court, 387 U.S. 523 . The Minnesota Stat Legislature has expressed its preference for the issuan e f search warrants in the context of possible violations el ting to the sale of alcoholic beverages. Minnesota St t e Section 340A.704 specifically provides: Search warrants may b issued in connection with violation of this ch pt r or other laws relating to sale, taxation, tr ns ortation, manufacture, or possession of alco 1 c beverages in accordance with Chapter 626. Minn. Stat. § 340A.704 (1 88 . Compliance with th ourth Amendment or the above Minnesota statute was no en attempted in this case. No search warrant was ever ap lied for in this case. To be reasonable, a search mus e'ther be conducted pursuant to a valid search warrant or f 't 'nto one of the exceptions to the -9- warrant requirement. State v ven, 269 N.W.2d 849 (Minn. 1978) . Therefore, in order t sustain the validity of plaintiff's search, plaintiff m st prove and is unable to meet the burden of proving, hat the warrantless search conducted fits into one of th e ceptions. See, e•g• , Bumper v. North Carolina, 391 U.S. �3 A brief discussion of the possible exceptions anticipa e to be argued by plaintiff follows. D. CONSENT. A warrantless search ma e conducted when the subject of the search voluntarily co s ts to it. State v. O'Neill, 299 Minn. 60, 69, 216 N.W.2 22, 828 (1974) . However, a consent, in order to cons it te a waiver of a suspect's constitutional rights, must e freely and voluntarily given, without promises, threats o coercion. Schneckloth v. Bustamente, 412 U.S. 218, 9 .Ct. 2041 (1973) . The burden is on the prosecution to sp i ically show consent: When a prosecutor see s to rely upon consent to justify the lawfulnes f a search, he has the burden of proving tha he consent was, in fact, freely and voluntaril g ven. This burden cannot be discharged by showi g no more than acquiescence to a claim of lawful a t rity. Bumper v. North Carolina, 91 U.S. 543, 548, 88 S.Ct. 1788, 1792 (1968) ; State Ex Rel ranshaud v. Hedman, 269 Minn. 375, 130 N.W.2d 628 (1964 ; Reyes v. Edmunds, 472 F.Supp. 1218 (D. Minn. 1979) . In d ition, "consent" must be proven 10- ' � �� by a fair preponderance of th e idence. State v. Bonner, 275 Minn. 280, 146 N.W.2d 770 (1 66) . It is equally clear that consent must be the produ t f something more than mere submission to legal authority. S ate v. Hi h, 287 Minn. 24, 176 N.W.2d 637 (1970) . The City of St. Paul y contend that consent was obtained in this case. Plaint f has indicated that consent may be implied where a police ff'cer's mere entry on private property is not prevented b he defendant. The basic premise of the consent excep i requires that consent be freely given. See Schnecklot . Bustamente, 412 U.S. 218. This premise assumes some typ o overt action will be taken in order to obtain that conse t The officers in this case did not even attempt to obta n consent; they merely walked into a private club wit o t identifying themselves. Plaintiff cannot meet its bur en that Hillcrest's consent was in fact obtained and, accordi gl , the warrantless search was invalid. E. EXIGENT CIRCUMSTANCES. There is no need to obt in a warrant where: (1) there is probable cause for the se r h and (2) there are exigent circumstances requiring immed 'a action. State v. Mollber , 310 Minn. 376, 246 N.W.2d 4 3 (1976) . As in the case of consent, the burden is on th �� S ate to show the existence of an exceptional situation jus i ying the warrantless search. ,�1 Vale v. Louisiana, 399 U.S. 30 (1 70) . Neither of the above circumstances were present at t e time of search. Neither probable cause, or exigent circumstances existed in this case. The pla' t ff received two phone calls from an anonymous person who r fu ed to identify himself. In judging the probative value f an anonymous tip, the credibility of the informant mu t be examined. State v. Gabbert, 411 N.W.2d 209, 212 ( inn. Ct. App. 1987) . The police reports are utterly de i of any indication that the officers knew whether the inf nt was reliable or whether the police officers had previ u ly spoken to the informant. Nor did the police officers k ow whether this anonymous person was involved in crimin 1 activity. When determining the existence of probable c us , the reviewing court "is restricted to consider only t e 'nformation presented at the time of the application for h search warrant. " Date v. Labar, 292 Minn. 228, 233, 1 5 .W.2d 435, 439 (1972) . The police report indicates that th officers at the time they entered the private club were ho even certain that a law had been violated. See supra. ! The "exigent circumstances" exception does not apply a d, therefore, the warrantless search was invaTid. '1 2 O LUSION Based on all of t e above, defendant Hillcrest respectfully requests th's Court to suppress any and all evidence obtained as a res l of plaintiff's illegal search. , GREEN, HAYES, SIMON, J HANNESON AND BREHL �� nn . Thomas, #170252 Pat ' ia A. Comeford, #182060 332 Hamm Building 408 St. Peter Street St. Paul, Minnesota 55102 (612) 224-7300 T RNEYS FOR DEFENDANT 13- . � �.1.�� '�-�y` ::��'��=�'�;L�U, 5 _ a I � I ,..� SQ �ID CITY OF SAINT PAUL : � ,, �``� '�'� OFFICE OF THE CITY ATTORNEY ?; �iiijiiqii� '/' o „;' EDWARD P. STARR. CITY ATTURNEY ,,., �..• 647 City Nall. Saint Paul, h1inni��i�ta �510' �� •. , 61'-'9d-'>1'1 GFORGE l_ATIMER MAYOR � ;�*� , �� J � '�d September 13, 1988 �� Hillcrest Country Club, Inc. NOTICE OF HEARING Bernice Simons, Gen. Mgr. 2200 Larpenteur Ave. East Saint Paul, Mn. 551Pl9 RE: Hillcrest Country Club, 2 �PI Larpenteur Ave. East Dear Ms. Simons: This is to�•notify you that a ea ing will be held concerning all the licenses held at the pre is s stated above at the following time, date and place: Date: October 20, 1 88 Time: 9:�10 a.m. Place: Room 1504A City Hall n x 25 West 4th S reet St. Paul, . 551P12 The judge will be an Adminis ra ive Law Judge from the State of Minnesota Office of Administr ti e Hearings: -- Name: Howard I.�� aibel Office �E dministrative Hearings Fifth F �o , Flour Exchange Building , 314! Fou �h Avenue South Minneap �i , Mn. 55415 Telephone: 341=76�J The Council of the City of ' S int Paul has the authority to provide for hearings conce k�i g licensed premises, and for � adverse action against su h licenses , under Chapter 310 , including sections 31P1.05 a d 310.P16 , of the Saint Paul Legislative Code. In the ca e of licenses for intoxicating and non=intoxicating liquor , aut o ity is also conveyed by section 344�A.415 of the Minnesota Sta u es. Adverse action may include revocation, suspension, fines 'an other penalties or conditions. Evidence will be presented to th judge which may lead to adverse action against all the licens s ou hold at the above premises as follows : On July 5, 1988 , a barten er in the bar at the Hillcrest Country Club sold 2 ca s of Stroh's Light beer at approximately 8: 30 p.m. S ' nc the Hillcrest Country Club has no onisale intoxicating a d no on-sale nonintoxicating liquor licenses, such sales ere in violation of law and ordinance (Sections 409.01 a d 410.01 of the Saint Paul Legislative Code) , and fur i h a basis for adverse action against all licenses held aid Club pursuant to Section 310.P16 (6) of said Code. Se a so Minn. Stat. Sec. 340A.702. You have the right to be repres n ed by an attorney before and during the hearing if you so 'c oose , or you can represent yourself. You may also have a erson of your choice represent you, to the extent not prohibi ed as unauthorized practice of law. The hearing will be conducted in ac ordance with the requirements af sections 14.57 to 14.62 of th innesota Statutes, and such parts of the procedures under s c ion 310.�5 of the Saint Paul Legislative Code as may be appli a le. At hearing , the Administrative a Judge will have all parties - identify them selves for the rec rd Then the City wi�l present its witnesses and evidence, each of whom the licensee or attorney may cross-examine. The license m y then offer in rebuttal any witnesses or evidence it may w ' sh to present, each of whom the City attorney may cross-examine The Administrative Law Judge may in addition hear relevant an m terial testimony from persons not presented as witnesses who h ve a substantial interest in the � outcom e of the proceeding; for xa ple, the owners or occupants of property located in close pr xi ity to the licensed premises may have substantial interest 'n he outcom e of the proceeding. Concluding arguments may be mad ' y the parties. Following the hearing, the Judge will prepare �i dings of Fact, Conclusions of Law, and a specific recommendati n for action to be taken. You should bring to the hear ' ng all documents, records and witnesses you will or may n ed to support your position. Subpoenas may be available to c p 1 the attendance of witnesses or the production of document in conformity with Minnesota Rules, part 1400.70�0. • . . If you think that this matterica be resolved or settled without a formal hearing , please con 'act or have your attorney contact the undersigned. If a stipula i n or agreement can be reached as to the facts , that stipul t on will be presented to the Administrative Law Judge f r incorporation into his or her recomm endation for Council ac io . If you fail to appear at the ea ing, the allegations against you which have been stated earl ' er in this notice may be taken as true and your ability to chal en e them forfeited. If non-public data is received into evide 'c at the hearing, it may become public unless objection islm de and relief requested under Minnesota Statutes, section �4. 41, subdivision 2. Ver truly yours, . .. . � PHILI YR E Assistan City Attorney (612) 298=5121 Attny. Reg . No. 13961 i cc: Joseph F. Carchedi License Inspector ,' Lt. Donald Winger " Vice Unit Albert B. Olson City Cl�rk �'i�#�'�i��el l . Office of Administra iv Hearings Lonny D. Thomas, Esq. Attorney for the Lic ns e i � � RE�EIlI�D MAUN, GREEN, HAYES, S M N, JOHANNESON AND BREHL J��,� �`: � ATTO N S AT LAW ADMi��►��- ��t: SAINT PAUL OFFICE MINNEAPOLIS OFFICE ' 2300 WORLD TRADE CENTER 520 NORTHLAND EXECUTIVE OFFICE CENTER 30 EAST 7TH STREET 3500 WEST 80TH STREET SAINT PAUI�MINNESOTA 55101-4904 MINNEAPOLIS,MINNESOTA 55431-4504 TELEPHONE:612-229-2900 TELEPHONE:612-835-9550 TELECOPIER:612-229-2800 TELECOPIER:612-B35-3463 January 13, 1989 REPLY TO� �� . Paul Howard L. Kaibel Administrative Law Judge Office of Administrative H ar ' ngs Fifth Floor, Flour Exchang B ilding 310 Fourth Avenue South Minneapolis, MN 55415 Re: City of St . Paul v. H 11 rest Country Club No. 5-2101-2750-6 Dear Judge Kaibel : Enclosed for your re ie is Hillcrest Country Club ' s Reply Brief with reference to the above matter. Very truly yours, �� %�� - ;� ,o y D. Thomas i.-- LDT:vs Enclosure cc : Philip B. Byrne Barry A. Gersick < /�� ' .�'`''`'/ RECEIVE� JAId � 7 1�� ADIMIM�iATtYE STATE F MINNESOTA � OFFICE OF ADM IIVI TRATIVE HEARINGS No. 5 �21 1-2750-6 In the Matter of the Privatl REPLY BRIEF OF Club and other Licenses of ! HILLCREST COUNTRY CLUB the Hillcrest Country Club, jI c . -------------------------- L- - This Memorandum cons it tes the Reply Brief to the "Final Argument" submitted ;in this matter by the City of St. Paul (the "City" ) . Hillcrest Country Clu , Inc . ( "Hillcrest" ) reiterates the assertions set forth i he previous Memoranda provided in this matter by Hillc e t. The search and seizure conducted by police offi e s for the City was clearly unauthorized since Hillcre t did not consent to the search, and no probable cause or s a ch warrant existed at the time of the search. As with t e revious arguments submitted on behalf of the City, the in 1 Argument filed by the City provides absolutely no sup o t for the unauthorized search. Accordingly, all of the Ci y s evidence should be supressed and the complaint against i lcrest dismissed. The Court should al o note that the City does not dispute that it is contrarl o Hillcrest ' s own interest for Hillcrest to make sales ' o alcoholic beverages to the general public . In its F ' na Argument, the City implicitly acknowledges that Hillcres , as a private country club, did not inten tionally make ale of an alcoholic beverage to Officer Winger under the m' staken belief that he was simply a member of the general ub ic . The City apparently agrees that, at worst, Hillcr s only mistakenly believed Lt. Winger to be a member of ', a organization authorized to use Hillcrest ' s facilities, ' n luding the right to obtain an alcoholic beverage previo s y purchased and provided by the organization for dispens ng in Hillcrest ' s lounge area to organization participants hus, even the City' s version of the facts in this matt r allege only that Hillcrest is guilty of erroneously ide ti ying Lt . Winger as a member of the organization entitled t obtain an alcoholic beverage. There certainly is no ben f ' t to be derived from punishing Hillcrest for making a mi ta e that Hillcrest itself hopes will not be repeated. The City also atte pt to persuade this Court to conclude that the single m staken identification of Lt. Winger as an authorized me be should be expanded to support the City' s conclusion tha ' illcrest commonly engages in sales of alcoholic beverag s o nonmembers . In fact, there is no evidence before 'he Court to support such a i conclusion. Contrary to the ��C ' ty' s position set forth in its Final Argument, Hillcrest as not obligated to present any evidence regarding the City s allegations . No facts should be inferred from Hillcrest ' d cision not to provide further -2 evidence defending assertion b the City wholly unsupported by the City' s evidence. C nt ary to the City' s position, Hillcrest is presumed innoce t until proved guilty and the City bears the burden of pro f n all issues in this matter. Since the City requested at th hearing to amend its Notice of Hearing to include addi io al charges, Hillcrest chose not to waste everyone ' s time b extending the hearing when a second hearing was clearly ne essary. After reviewing the Amended Complaint, and being a vised by the City' s attorney that the City intended to p t on no further evidence, Hillcrest simply decided tha ' t would be in everyone ' s best interest to waive further te t 'mony and submit the matter on the written briefs . The Ci y ' s attorney agreed. Now, the City seeks to use against Hi lcrest the decision by all parties that no further test 'm ny was necessary. In response to the C ty' s Final Argument, however, several points must be ei erated. First, the City emphasizes on Page 1 of its b ief that Lt. Winger was not explicitly directed by the Ci y to wear plain clothing in his entry onto Hillcrest p ,em' ses . Regardless of whether Lt. Winger was directed by � h City to wear plain clothing � in entering Hillcrest, thelc itical fact is that he did enter Hillcrest property �In plain clothing and without advising anyone that he wa ! ntering as a police officer. Furthermore, if the City ha i tended the inspecting officer to wear a uniform, thereby a ising Hillcrest of his police status, the City undoubte y would have dispatched a squad car with uniformed police fficers . There can be no mistake that Lt. Winger, a plain c othes police officer, entered Hillcrest property wearing p ain clothes, as was intended by the City Police Departmen . Second, Paragraph 4 o Page 2 of the City' s Final Argument asserts that t i Court should "draw negative inferences from the fact t at Hillcrest' s Manager was not called to testify at t e first day of hearing, because counsel did not know wha er testimony would be, and was not called to testify the continued date. " This is clearly untrue . At the ea ing, counsel for Hillcrest made clear that the Manager a prepared to testify as to the relevant issues pertai i g to the original Notice of Hearing. Since the C ty was being allowed to examine Hillcrest ' s first witn ss regarding various events which allegedly occurred pr ' or to Lt. Winger ' s entry onto Hillcrest premises, it as decided by Hillcrest counsel and advised to both the Cou t nd City' s counsel that no further evidence regarding suc p evious events would be provided unless and until the it amended its Notice of Hearing. After reviewing the a en ed Notice, counsel for both the City and Hillcrest agre d that no further evidence would be necessary. Since the i y has clearly failed to prove the -4- , alle a ' g tions set forth i he amended Notice of Hearing, no "adverse inferences" ca b drawn from Hillcrest ' s decision that no further evidenc ould be necessary to demonstrate Hillcrest' s innocence. The Court should ls note that the City ' s assertion that the Court shou d draw adverse inferences from Hillcrest' s silence pe v des the City ' s Final Argument. Since the evidence pro id d by the City clearly fails to prove the allegations s t orth in the City' s amended Notice of Hearing, the City fi ds itself forced to attempt to prove such allegations by im lying their existence through Hillcrest ' s refusal to ro ide further exculpatory evidence . Such exculpatory eviden e imply is not necessary. Only a cursory review of H' 1 crest ' s filed Memoranda amply demonstrate Hillcrest ' s c plete disclosure and explanation of the pertinent issues Third, the City' s ef nses of the alleged propriety of Lt. Winger ' s search and se ' zure remain as misguided as they were at the inception o It is litigation. The City continues to point to how easi 'y Lt. Winger was able to enter Hillcrest property. Again, the reasonableness of Hillcrest ' s expectatio II f privacy does not in any way depend upon the difficu ty faced by Lt. Winger in violating this expectation. As a co relative example, a woman clearly has a protectable ex e tation of privacy as to the -5- , �� "•;"�`. , . �.� belongings located within he urse . Yet, access to the belongings within a woman' s ur e is rarely closely guarded and can usually be effected wi hout the employment of any force or deception. The wom n' s expectation of privacy in her purse is no less protect d s a result of her refusal to employ all possible but unne es ary security measures . Fourth, the City contin es to assert that Lt. Winger' s search and seizure is compri e within the police authority to conduct an "inspection" o Hillcrest ' s premises as a result of Hillcrest' s licens s The City states at Page 4 of its Brief that "regulato y and/or licensing inspections do in fact properly lead to the obtaining of physical evidence . " Hillcrest does ot dispute that Lt . Winger had the authority to conduct a inspection of Hillcrest ' s premises through passive obs r ation of the goings on within Hillcrest. Hillcrest furth r grees that physical evidence can be seized in connecito ith an inspection limited to the usual passive observati n . The statutes authorizing inspections, however, canno e relied upon by the City as authority for engaging in f irmative conduct pursuant to which proscribed unlawful �l s of alcoholic beverages are solicited. Such activity � a exceeds the type of passive i "inspection" contemplated iy the statutes . The City has failed to provide any case ,in which conduct similar to Lt. Winger ' s was deemed an au ho ized "inspection" because no such case exists . Finally, the City assert hat Hillcrest has failed to institute changes in its po ic es to avoid similar future infractions. This issue has n t been explicitly addressed in Hillcrest' s Memoranda b ca se Hillcrest ' s Trial Brief meticulously describes the ni ue facts resulting in this matter . Although Hillcrest ha admonished its "bartenders" to be even more careful o ensure that only authorized persons are served properly, t ere is very little more that can or need be done to avoi r currence of this incident . CO C SION Based upon the foregoi g Hillcrest Country Club, Inc . reiterates its request that t e allegations set forth in the City of St . Paul ' s Amende otice of Hearing be dismissed or, in the alternative, th t o sanctions be imposed. Dated: January 13, 1989 . MAUN, GREEN, HAYES, SIMON, JOHANNESON AND BREHL B G�j� D. Thomas ID#170252 World Trade Center East Seventh Street St. Paul, MN 55101-4904 ( 612 ) 229-2900 Attorneys for Hillcrest Country Club, Inc . -7- s��'��. CITY OF SAINT PAUL ~� ':�'i, �; �,, OFFICE OF 7HE CITY ATTORNEY �;� i�iii ii'ii �^ ;... EDWARD P. STARR, CITY ATTORNEY ,, «,. ,.,. ,�,,,«�,,��''��` 647 Ciry Hall, Saint Paul, Minnesota 55102 612-298-5121 GEORGE LATIMER MAYOR �rl� #_�.. December 21, 1988 �� . ��V �� a� � �� : , �V� Howard L. Kaibel Administrative Law Judge Office of Administrative Hear n s Fifth Floor, Flour Exchange B i ding 310 Fourth Avenue South Minneapolis , MN. 55415 RE : Hillcrest Country Club Dear Judge Kaibel : I Pnclose my Final Argument n he above matter. It responds to the Brief served on me by Mr omas on December 20 , 19$8 , and sets forth such concluding r m rlcs as I wanted to make . Very truly yours , . , PHILIP . RYRNE Assistant City Attorney Enc . I cc : Lonny D. Thomas I Attornev for Licensee � ,-� �., . ` ��,''�," °�*��.,�`,�, �� _ '_ ,1 Y�� S AT OF MINNESOTA ��`� �� OFFICE OF �AD INISTRATIVE HEp,RINGS ��'��M�� N !�. -2101-2750-6 '"�'"�;°��'�� — — — — — — — — — — — — — — — — — — — In the Matter of the Priva lub and other Licenses of the FINAL ARGUMENT Hillcrest Country Club, Inc. — — — — — — — — — — — — — — — — — — — The City has already f l d its Memorandum in Opposition to Motion to Suppress , and thi ' rief will both supplement those arguments and seek to clari y he facts brought forth at the hearing. FACTS The stater.:ent of facts in HCC' s Brief at pp . 2-6 need� clarification in several re pe ts . 1 . At p . 2 , HCC sta es that while it h�.s a state bottle club permit, it a no "liquor licenses . " HCC does have a private clu icense , issued by the City, which permits the stora � e dispensing and consumption of intoxicating liquor n the premises , It is , similar to the �tate bottle clu ermit , a species of liquor license, and is therefo e, more heavily invested with the public interest and r gulatory }�olice powers than other licenses . �I 2 . At pp . 3-4, th re is no evidence that the police department "dire te " Winger to don plain clothing and "covertly �nt r" HCC premises . The evidence was that Winge � w s at home, at a dinner for friends , and was as ed to investigate. He is not a unifarmed officer '�� a d left in the clothes he wore at home that ev ni g. 3 . At pp . 4, 9 , 1 II! a d other places , HCC characterizes the G]inge ; v sit to the HCC premises as "covert entry" , as a !�'c vert search and seizure scheme" , as an "underco er police sting operation" , and other similarly ove ib own rhetoric . The facts 2- are that Winger and a frie d ust walked into the HCC openly, �aent into the bar d sat down and ordered two beers . There was no "cove 't ntry" , nor was there any evidence (p . 4) that tidinge I " ought to create an impression" he was a membe o guest . 4. At p . 5 (first fu 1 aragraph) , and p . 17 , HCC argues the inexperience of th bartender, but neglects to mention that the manage w s there and did in fact make change for the transa ti n. The manager was not called to testify at the f'rs day of hearing, because counsel did not know what er testimony would be, and was not called to testify t he continued date. Such failure to testify require a verse inferences to be drawn against HCC . 5 . At p . 5 , be�innin ' a about line 16 , and through p . 6 , HCC recites as "fact " number of assertions as to how HCC handles dinner ar ies and the "sale" of liquor to attendees by means of t' ck ts . No such testimony was given by the bartender, an w ile t-�s is what the man- ager might have said on di ec had she testified, counsel for the City has had no ch nc to cross-examine or contra- dict that testimony. The ac s and only facts in evid�nce support the new charge mad b the City in its Amended Notice of Hearing, to wit , th t the bartender sold alco- holic beverages to persons at ending a party or banquet at HCC, by means of redeem'ng tickets purchased for the drinks . The manager' s fai ur to testify and rebut the inferences drawn from the ar ender' s testimony compels one to believe that the ma ag r' s testimony would have confirmed and strengthened h evidence of unlawful sales of alcoholic beverages. H � estimony would have in all likelihood confirmed what �.e infers from the bartenderts testimon.y, i .e. , that HCC gs in fact renting space for dinners and banquets and e'�h r selling liquor itself or allowing liquor sales by a � er. Either is a violation of both state law and loca �Io dinance . The City reaffirms its sta �m nt of facts in its November 18 , 1988 , Memorandum. -3- A G NT There is no doubt that the C bartender, with the assistance and knowledge of the HCC manager, old alcoholic beverages to [�linger . There is also no doubt that H C sold or permitted the sale of alcoholic beverages to those t ending a previous dinner or banquet at HCC. The HCC manager' s presence at the hearing and failure to testify compels adver e inferences to be drawn about both above transactionse There is no doubt that Wing r just walked in openly and w�thout a� covert action. There was no c ncealment or surreptitious action. He sat down at the bar and orde d two beers . Any person, whether police officer or not, could ha e one the same. (And while counsel for HCC and the City agree that th presence of �+linger's friend can he ignored and is not a pivotal fa tor, it is worth noting that a civilian could do and did the s � e as Winger - just walk in and � sit down and order and be serv ;cl�. Among the adverse inferenc Is o be drawn from the manager"s failure to testify could well b �I� t e fact that the prev�ous dinner or banquet on the premises was 'ot for members or guests , that i� was a group renting the premise or a wedding or other function, arid that that is preciseZy the ea on why Winger or any other member of the public could have then w lk d in. Clearly there was no expectation of privacy by HCC i t e areas of its premises into which Winger walked and sat down t buy his beer. Had the manager testified, it would undoubtedly a e been made clear that certain areas of the club have greater o esser degrees of exclusivity, and hence differing expectations o privacy. HCC argues at p. 10 that W'ng r would have been within his rights , and his entry permissib e, if he had simply witnessed some- one else Making a sale. This i a concession fatal to HCC' s case. Either the entry is permitted, r ' t is not , and subsequent actions within the premises do not chan e the character of the initial entry. Regulatory and/or licen i g inspections do in fact properly lead to the obtaining of physic 1 evidence. See, for examnle, in New York v. Burger, 482 U. S . , 107 S . Ct . 2636 , 96 L.Ed. 2d 601 (1987) , where a warrantles i spection of an auto junkyard lead to the copying of VIN numbers , a omputer check, and the arrest of the junkyard operator. The City restates and ado ts its previous argument at pp . 3-8 in its Memorandum of November '8 , 1988 . , RECII ,NDATION The evidence does support � t e imposition of a reasonable sus- nension. It apnears that the �i ensee HCC had adopted in the past questionable practices in dea in with alcoholic beverages for dinners and banquets on the p em ses . It has not presented any evidence, however, of changes or reforms to eliminate those nractices -5- which violate state and loc 1 liquor laws , This failure should be taken into account . Cou s 1 for the City does not as a practice make specific recommendatio s to the Administrative Law Judge or the City Council , but does o ever attempt to indicate �ahat level of severity of discipline c u d be supported by the evidence. There is no specific ordinance w ic recommends penalties for violations by private clubs , although a rivate club license, as a kind of liguor license, can logically be om ared for penalty imposition to an on-sale intoxicating liquo e tablishment, �e CounseT believes that a reasonable suspensi ;n n this matter would not exceed six consecutive days in length '� b t that lesser penalties are certainly i within the discretion of t e ity Council . Submitted this 22� I y of December , 1988 , EDWARD P . STARR City Attorney , � �` _ PHILIP . YRNE Assistant City Attorney 647 City Hall and Court House Saint Paul , MN, 55102 (612)298-5121 Attny. Reg. No . 139h1 �� R�CEIVED► MAUN, GREEN, HAYES, SIM N, OHANNESON AND BREHL �AN � fi ATTORN YS T LAW R � �� 7��'V� SAINT PAUL OFFICE MINNEAPOLIS OFFICE �� 2300 WORLD TRADE CENTER 52 NORTHLAND EXECUTIVE OFFICE CENTER 30 EAST 7TH STREET 3500 WEST 80TH STREET SAINT PAUL,MINNESOTA 55101-4904 INNEAPOLIS�MINNESOTA 55431-4504 TELEPHONE:612-229-2900 TELEPHONE:612-835-9550 TELECOPIER:612-229-2800 TELECOPIER:612-835-3463 January 6� 1989 REPLY TO: St. Paul Howard L. Kaibel Administrative Law Judge Office of Administrative He ri gs Fifth Floor, Flour Exchange Bu ' lding 310 Fourth Avenue South Minneapolis, MN 55415 Re : City of St. Paul vs . H 1 crest Country Club Dear Judge Kaibel : This letter confirm ur telephone conference of January 6 pursuant to whic H llcrest Country Club has been granted until January 13 , 198 to file a Reply Brief in the above-entitled matter. Very truly yours, __.�.,i°' `- � , . � , _ i-. �. �ny D. Thomas �, r.. ��' '� ' � LDT:vs � cc : Philip B. Byrne Barry A. Gersick � �' K � . � d5 �� K` • � � � � e^ I . $ � n�*' r � ; ? ,� � t .� � � �, � �� - � � ,. 1 ,°, �"' �� J� � �, « ..� . kP � ,J � � �� 1 � �. '�� r A�:3� ... � r � � � , , � p � �.�..k ' �...... •^/ � � � V � �ry � 'C 'N � � I � J��ll` � � °- . � � , �^. y Q1 � �' ^ ,�. � . � � r0' � ,,,� � �_ .. 4;,! � •,y '�j" �' � � � .r�p � � �`��;;;�,4,a�°'`. �' � w o� .�� CITY OF SAINT PAUL � ,�.� ,� v'� i' -== OFFICE OF THE CITY ATTORNEY o ,� �'� � •H� � ,� � ; EDWARD P. STARR, CITY ATTORNEY � �"' '�� '� � 647 City Hall, Saint Paul.Minnesota 55102 - �� '� O� � i 612-298-5121 N � 4,; � -�' •y � � ° r� �' ~ � RECEIVEQ � .,� � w � o � 2 3:�� ° v ' �r..� � � �sss o � � � � ~ �' o w�� ADNAUYf�THATIME o �' HEARII�1( ,' Q I AMENDED 2 o NOTICE OF HEARING 2 o I — � � , � �' Q W W � � O W � � ti N � Q � �� I LarDenteur Ave. East 2 ti 2 p ` � n � o W tq � i i � �' 30 � F � : continuation of the hearing will � pO -' i �° "' Qa' � nses held at the premises stated �, N 2 9 te and place: � �e �, 1988 �, :A � � nnex 4t Street , n. 55102 is rative Law Judge from the State of . ' st ative Hearings: Nan«_ w r L. Kaibel f ce of Administrative Hearings Fif h Floor, Flour Exchange Buildinq 31fd F urth Avenue South Mi ne polis, Mn. 55415 Telephone: 34 ='7 08 The Council of the Ci y of Saint Paul has the authority to provide for hearings o cerning licensed premises, and for adverse action again t such licensess under Chapter 310 , including sections 3 fd 05 and 310.06 , of the Saint Paul Legislative Code. In h case of licenses for intoxicating and non`=intoxicating liqu r , authority is also conveyed by section 340A.415 of the Minnes ta Statutes. Adverse action may include revocation, suspension, f nes and other penalties or conditions. Evidence will be prese t to the judge which may lead to adverse action against all the 1 ' censes you hold at the above premises as ---- follows : � - On July 15, 1988 , a barten e in the bar at the Hillcrest Country Club sold 2 ca s of Stroh' s Light beer at approximately 8:30 p.m. Bef re that, the bartender had sold alcoholic beveraqes to pers ns attending a party or banquet at the said Club, said sale eing made through the sale of tickets redeemable for a c holic beverages. Since the Hillcrest Country Club ha n on=sale intoxicating and no on=sale nonintoxicating li o licenses, such sales were in violation of law and ordi an e (Sections 4019.�11 and 414l.01 of the Saint Paul Legislati e Code) , and furnish a basis for adverse action against 11 licenses held by said Club pursuant to Section 310.06 (6 of said Code. See also Minn. Stat. Sec. 340A.7�12. You have the right to be represe ted by an attorney before and during the hearing if you s hoose, or you can represent yourself. You may also have p rson of your choice represent you, to the extent not prohib t d as unauthorized practice of law. The hearing will be conducted 'n ccordance with the requirements of sections 14.57 to 14.62 of h Minnesota Statutes, and such parts of the procedures under s ction 310.�15 of the Saint Paul Legislative Code as may be app i able. At hearing , the Administrati e aw Judge will have all parties identify themselves for the r c rd. Then the City will present its witnesses and evidence, e h of whom the licensee or attorney may crossi2xam ine. The 1 icen e may then of fer in rebuttal any witnesses or evidence it may w ' sh to present, each of whom the City attorney may cross=exam n The Administrative Law Judge may in addition hear relevant an material testimony from persons not presented as witnesses wh h ve a substantial interest in the outcom e of the proceeding; f r xample, the owners or occupants of property located in close pr ximity to the licensed premises may have substantial intere t 'n the outcom e of the proceeding. Concluding arguments may be a e by the parties. Following the hearing, the Judge will prep r Findings of Fact, Conclusions of Law, and a specific recommen at 'on for action to be taken. You should bring to the h a ing all documents , records and witnesses you will or ma eed to support your position. 5ubpoenas may be available om pel the attendance of witnesses or the production of docume ts in conformity with Minnesota Rules, part 14P10.7000. If you think that this matter c n be resolved or settled without a formal hearing, please con a t or have your attorney contact the undersigned. If a stipul i n or agreement can be reached as to the facts , that stipul t on will be presented to the Administrative Law Judge f r incorporation into his or her recommendation for Council ac i n. If you fail to appear at the ea ing, the allegations against you which have been stated earl er in this notice may be taken as true and your ability to chal e e them forfeited. If non=public data is received into evide c at � the hearing, it may become public unless objection is m de and relief requested under Minnesota Statutes, section 4. f�, subdivision 2. Ver truly yours, N ' R��E�� PHILIP . BY N Assistant City Attorney (612) 298=5121 Attny. Reg . No . 13961 cc: Joseph F. Carchedi License Inspector Lt. Donald Winger Vice Unit Albert B. Olson City Clerk P�?�-��C�11 Office of Administra iv Hearings Lonny D. Thomas, Esq. 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F O G � � W � � � N < � u � Z r � m � '+ �" O o V • O 3+ m u o Z m � u rn TJ G) � � a p 4 p � R1 a fA m i W < = � E u �+ ai � m O J 'o a� D, a c> U j f .1= (.' 47 •r-I � � �� W m U L O tA rl � n' � N H W 0 (C Cl � 1J Z � � F t� U clf � b � 4 m Z G .,-� „� N : r � 4 F u •� ,-� . g �y, C^ r 4 � y� 3-I f�f 1J m I O < � z < o E o �+ CJ � u O z � o � G3. v G O G Q } f N u u � N �+ p., •.-I J f' h ° > 4 L+ 'tl N E � � a O R! 3-+ 1+ � U� � 0 � 1.OJ � � cA L C7 a � � 1�- 0 'O 'C7 •r-1 N aC. w o0 i o u W W a "'' v G 'O �tl � > 0� J S � • m m � Jr.. <O JJ L � � N � � > > b i � U •.� U7 � 1.i v � � W y z 3 a� ,.� v N F � F �O OO •rl 4J C �1 < '� � Y R � V W y '� .r 1y .� �rl 3 . f O � '� < W W 0 � R � 3 C7 W N Q O J '""� z J �Z(� ( 7 7 O W .L] . W J r U •r� '� Cl iJ O � � � � • F f W � a.i .o .--i -.- o 0 ^ � W < � � U �+ N tn .� o �--i � � O z m f- � N R) U � 3.+ •� � f...� O O < m Q m t-+ f3. � '� u � � � � r � � H � O a1 U � �, F u � a .� tn W O Q �( _ Ca. c �O � °u c Z i O U > y +-� W i V a � 3.+ .� 'O � U N 1+1 V I� W fO f0 H R1 tn � l+f 01 � +�.Y't ' • . ,. � 7 ,� � - '�.�� :;-,Y,� MAY 2 31988 _:,, CITY ��`��Y STATE OF MINNESOTA ) County of Ramsey ) ss. CITY OF SAINT PAUL ) Alber B Olson � I, . . . .. . . ......... .. . ......City Clerk of the City of Saint Paul, in esota, do hereby certify that I have compared the attache c py of Council File vo..87.�81. ... ..... . ��-��== April 28, 88 '`';� as adopted by the Ci y ouncil.. ... . . ..... .. ... . . . .. .I9. . . ... . .. and approved by the ,ay r. . ... . . .....April 29........ .. ...19.88 . . . with the original th re f on file in my office. � I further certi y hat said copy is a true and correct copy of said original and th whoZe thereof. WITYESS ny hand an the seal of �he City of Sain*_ Paul, Minnesota this . . . . r. . . . ., daq af .... ...�� . ... .. .A.D. 19 88. , . .. . . .. . . ��.. .��......... ... CiCy Clerk. � �`��' '' '- V O 1 " �7r r:�vi�r�l;.aV� 7 '.��1�i C �- CITY CLEltK � COUIICIl r� �q��"'��rMAYORT E"T GITY OF A NT PAUL File N0. �?~�4 PBB/City Attny. � • . 4rdi n�ie Ordinance N0. AIDdt. ��4 �J � � 1� Presectted By (�''`��1 . - �'� Referred To Committee: Date / , .Out of Committee By � Date � An Ordinance amen in Chapter 409 of the Saint Paul. Legisl ti e Code pertaining - to Intoxicating L'qu r; nrovi.ding � presumptive �enal ie for liquor licensed establis e ts . THE COUNCIL OF THE CITY OF SAIN P UL DOES ORDAIN: Se tinl . That Chapter 409 of the Sa' t Paul Legislati:ve Code is hereby amended so as to add the follow' g new provisions thereto : Sec. 499-�3- 409. 26 . I to icating liquor; ad�er9e kes.��ags; eea�r�e��eris�x�e� �� as; presumptive penalties . a) P__�ur�o�se. The purpos� o this section is to _ establi� a standard by wh' ch the City Council -- "- determines the length of 1' ce se suspensions; and `� revocations , ��aes-a.nd�e�- e g�ae�ag-e�-eer��}� e�as t��ea-�ke-bt�s�aess-��eeases , a d shall apply to all on-sale and off-sale licen ed premises . These � enalties are resumed to e ro riate�or ever case, owever t e ounci eviate t ere rom in an individual case where t e ouncil in s and determines that t ere exis s� bstantial and com- el in reasons ma in it r a ro riate to 0 so. . en eviatin rom t es stan ar s t e Council sha rovide written reas s whic s eci wh the enalt se ected was more o riate. COUNCIL MEMBERS " Yeas Nays , r equested by Department of: Dimond p ' �ng In Favot Goswitz Rettman ✓ s�be;bei Against BY , Sonnen Wilson orm Appr ved by Cit Attorney Adopted by Council: Date . - � ,r'�� y `ied Passed by Council Secretary By �'l ��_- By Approved by Mayor• Date pproved by Mayor for Submission to Council By BY , /. , � • ' • ' • .. � _ �� l ti ��v � �'�-'`• _2_ �.;, . b) Pres tive enal 'e �for 'vi�ol�at�ions . Adverse � penalties or convictions o vio ations s a 1 be pres�ned as follows : � TYPE OF VIOLATION 1ST VIO T ON 2ND VIOLATION 3RD VIOLATION 1: Co�ission of Revocat'on NA NA a felony related - to the licensed activity. . 2. Sale of Revocat'on NA NA alcoholic beverages while - license is under _ suspension. . 3 . Sale of 5 Conse ut ve Revocation NA alcoholic Days Su - beverages to pension under-age person. ° 4. Sale of 5 Conse ut've 15 Consecutive Revocation alcoholic beverage Days Su - Days Sus- to intoxicated pension pension person. � 5. After hours 3 Conse u 've 9 Consecutive Revocation sale or display Days Su - Days Sus- of alcoholic pension pension � beverages . � 6 . Refusal to 5 Conse u ive 15 Consecutive Revocation allow City � Days Su - Days Sus- inspectors or pension pension police admission . -- to inspect premises . _ 7 . Illegal 3 Conse u ive 9 Consecutive Revocation gambling on Days Su - Days Sus- � •� premises . pension. pension � 8. Permit person 3 Conse u ive 9 Consecutive Revocation � to leave premises Days S - Days Sus- with alcoholic pensio pension � beverage. � �� -L-S� �: ��: . �� .. , .. �7- �� . . ( �r� � �-', 3- �;- TYPE OF VIOLATION 1ST VIOLA 0 2ND VIOLATION 3RD VIOLATION 9. Failure to 15 Consec i e 45 Consecutive Revocation - make application Days Sus- Days Sus- for license pension pension renewal prior to license expiration ' date. 10. Violations of 5 Consecu 'v 15 Consecutive Revocation City ordinances Days Sus- Days Sus- pertaining to pension pension fire or building . or health codes . � c) Computation of time. or the purpose of determining the number of occurrences f iolations , the council shall consider a violation as a c nd occurreace if it occurred within 18 calendar months f he first violation; and shall consider a violation as a i d occurrence if it occurred within 30 calendar months f he second violation. �.} E�-ga��e--eer��se�s . -- �-a-��eease-n�a��e�-I�as-been sekedt��ed-�e�-as-ad�e�se-1� a� sg, -eet�ne��-a3eaibe�e-sks.��-xe� d�.set�.ss-�k.e-��eerzse-�a��e� � k.-eaek-e�ke�-e�-Ea��k-ea�-e� �ke-pa��es-�axe��ed-�a-�1� -ai ��e�-t�n�ess-stsek-d�sexss�en eeet��s-e�-�ke-pt�b��e-�eee� -d �}�g-�ke-gxb��e-kea�}xgs-e€ �ke-�a��e�-e�-dti��g-�ke=e ��'-s�-€�aa�-�e��be�s.��eas-e� �ke-�a��e�- e3 d) Other penalties . o hing in this section shall � restrict or limit the auth ri y of the �council to suspend up to 60 days , revoke the ic nse, e� impose a civil� fine _ not to exceed $2,OQ0, to �i �o �e �coridit�i:oris �or �take an � other adverse �act�ion �iri �accor an e it � aw, e�-x�e e��eAS-e� seaee�ap �aaee-�a��k-ea-egg ' ea �e-s�a�t�.�e;-��e-s�-e�d}aaaee -- �e�a��ag-�e-a�eske��.e-be�e eg s; provided that the license _ holder ha� been afforded a o ortunit � for a hearing in the manner provided for in Se tion . of this Code. . .- ;:'`�'�::� �� . �� ,r_r :c� �S.ut • �wwrow • ..�— .. � � � ---` — — -- — — E'11e 1'IU. v � — - � � . ' , y • ' . . � � 0 r dnce � o��,�n��N o. � ��-� �resented Ey . Referred To Committee: Date �':�, . � _,..: T=�°'� Out of Committee By Date � . ' -4- . � . _ . S ction 2. This ordinance shall tak e fect and be in force thirty days from and after its passa e, approval and publication. COUNCIL MEMBERS ' _ v� Nays Requested by Department of: • . Diaand � • �pg In Favor. �.. � • Goswitz . Rettman �b�;�� Against BY Sonneo __ ' . `�'�„� APR Z 81�88 � � Form App oved by 'ty Attorney , adopted by Council: Date ` � . � �-�-� �er':'„'-:}d P Council S t BY Byg.:�' _ . .. �pprov y Mayor te _ 9 �� Approved by Mayor for Submission to Council � . � — ' BY ' �,��cu�n M AY 7 �saa � . ,., �i � 4 329.05 LEGISLA E C DE ted under this section,the license inspector 1 Grocery,only . . . . . . . . . . . . . . . . . .$ 90.00 may commence revocation proceedings im- mediately pursuant to Section 310.05. Grocery,frozen foods and/or butcher (Ord. No. 17184, 11-20-84; Ord. No. 17357, § 2, • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 125.00 5-27-86) 3 Grocery, confectionery, frozen foods and/or butcher . . . . . . . . . . . . . . . . 135.00 Chapter 330. Florists 4 Grocery, "food shelf" operation, so called, where packaged food which Sec. 330.01. License required. ��n ��{� for charitable pur- No person shall engage in the business of flo- Pases is distributed without charge rist or nursery in Saint Paul without a license.A to the recipients;provided,that the retail florist shall be defined, for the purposes of fee shall be waived if the applicant this cha ter as an registers with the city health de- p , y person engaged in selling to p�ment as directed by the inspec- the ultimate consumer cut flowers,flowering and decorative plants, green plants and annual and t°r • • • • • • • • • • • • • • • • • • • • • • • • • 1.00 perennial plants for outside planting. Cl s B Bakery, outlet for bakery prod- (Code 1956, §§ 383.01, 383.02) cts,butcher,caterer,confectionary store, od distributor, manufacturer, proces- Sec. 330.02. Fee. r,wholesaler and/or warehouser . . . . 75.00 The fee required is forty-five dollars ($45.00), Cl s C Restaurant; food establishment, plus an additional fee of ten dollars ($10.00) for lling and servicing: each vehicle used in the operation of the business 5.00 for restaurants with 25 or fewer =�r"-� in Saint Paul. s ats and open for business fewer than (Code 1956, § 383.03) hours per day. Chapter 331. Food License' 50.00 for restaurants with 99 or fewer s ats and open for business fewer than Sec. 331.01. License required;ezceptions. 1 hours per day. $ 50.00 for restaurants with 99 or fewer No person shall operate a food establishment as s ats and open for business more than defined in Section 331.07 within the corporate 1 hours per day. limits of the City of Saint Paul for the purpose of dealing in or selling food for human consumption $ 00.00 for restaurants with 100 or more without first obtaining a license. 1'his chapter s ats and open for business fewer than shall not apply to Chapter 341 of this Code deal- 1 hours per day. ing with milk and milk products. $ 00.00 for resta�.�rants with 100 or more (Code 1956, § 291.01(lA);Ord.No. 16938,6-29-82) $ ats and open for business more than 1 hours per day. Sec. 331.02. Applicable license;minim�fees. 1 s C restaurants shall not be charged Any person operating a food establishment within n dditional fee for square footage under the City of Saint Paul must obtain a license of the ec ion 331.03. applicable type hereinafter provided. The licen- ses and annual minimum fees shall be as follows: l s D Food establishment other than t ose covered under Class A, B and C Class A Grocery: ling only foods bought pre-packaged o in original containers and sold at 'Crosa reference—Vending machine licenses,Ch.363. 1' il for consumption offthe premises . 10.00 2056 ) � . •y •':�� ' $331.05 `•�� LI NSES t{ ' _:.�:: Class E Beverage manufacturer or whole- Sec. 331.03. Additional fees. saler distributor . . . . . . . . . . . . . . . . . . .$ 75 00 In addition to the annual license fee as pro- Class F Ice plant (Deleted by Ord. No. vided in Section 331.02,each licensee(except Class 14061, adopted November 27, 1968) C restaurants)shall pay an annual fee determined Class G Itinerant food establishment . . . . 50 00 by the area used for selling, processing, packag- ing, serving and cold storage used in connection Class H Slaughter house . . . . . . . . . . . . . . 300 00 with the business carried on at the premises as Class I Vending machine location (as pra follows: � vided in Chapter 363) (1) Area of not more than 1,000 square feet,no Class J Vending machine operator(as pro- additional fee. vided in Chapter 363) (2) Area of more than 1,000 square feet, but Class K Food vehicle used in connection less than 2,500 square feet,the sum of$10.00. with any other class license . . . . . . . . . . 15 00 (3) Area of 2,500 square feet, but less than Class L Food establishment operated in 5,000 square feet,the sum of$30.00. any public, private or parochial school �` (4) Area of 5,000 square feet, but less than including nursery school,prekindergarten 7,500 square feet,the sum of$70.00. school, elementary school, junior high school,high school,academy,college or (5) Area of more than 7,500 square feet, but university which serves meals or lunch- less than 10,000 square feet, the sum of - es, whether in connection with or in $110.00. addition to the education, training or (6) Area of 10,000 square feet or more, the .';;;„�l�;�- care of persons . . . . . . . . . . . . . . . . . . . . 1. 0 sum of$200.00. Closs M Food establishment operated in (Code 1956, $ 291.01(1C)) any rest home, sanitorium, hospital, boardinghouse or day care center which Sec. 331.04. Other procedures. serves meals or lunches,whether in con- Nothing in this chapter shall affect licensing nection with or in addition to the edu- procedures covered elsewhere in the Legislative . cation,training or care of persons . . . . . 1. 0 Code except as specifically provided. Class N Mobile food service food estab- (Code 1956, § 291.01(D)) lishment: Includes mobile food prepara- tion vehicles and trailers,human-powered Sec. 331.05. Application,procedures,require- mobile carts for packaged food service, ments,etc. and human-powered mobile carts for mo- (a) Application. Any person desiring a food li- bile food preparation. . . . . . . . . . . . . . . 100. 0 cense shall file with the inspector a written ap- � Class O Food establishment operated in plication for such a license, giving in the applica- any bed and breakfast residence, as de- tion, in addition to other required information, fined in Chapter 378,which serves meals the full name and place of residence of the appli- � in connection with the provision of sleep- cant, the exact location of the building or build- ing accommodations only . . . . . . . . . . . 25. 0 ings, the part of the building, including the area (Code 1956, § 291.01(1B);Ord.No. 16816,8-11- ; in square feet, or any other location including Ord. No. 16839, 10-20-81; Ord. No. 16883, 2-11 ; vacant lots, parking lots, open areas or the busi- Ord. No. 17018, 5-1?-83; Ord. No. 17058, 10-18 ; ness premises of another, intended to be used in Ord. No. 17111, 2-23$4; Ord. No. 17397, § , the conduct of the business and under such li- :-;�=�_ 9-4-86) cense, the dates and times the facility will be in - -;;:==;.; Note—Fees are subject to annual increase pursuant t § operation, and whether or not the applicant has '�= '� �`" 3io.1s. at any previous time been engaged in a food han- ��,.. • 2 57 _,..._ . � . .-, .. , � . ;,.:.:. : _... t �- : _,. : .. . _�, _ .:. . _. . _ r,w >, .. ,.... .. . . .. . . ._._ .. .. � . y.• $331.05 LEGIS TIV CODE ' •��=' dling business within the City of Saint Paul and, (fl Posting of license. Each licensee shall keep if so, when and where. The applicant shall state his license prominently posted on the premises, in the application the nature of the business to be or if posting is impossible, available for inspec- conducted. If he proposes to operate more than tion at the location of the food establishment. one such.business,he shall so state in his applica- tion and shall describe the part or portion of the (g) Refund of fee If the application for the li- building or place wherein he proposes to conduct cense is not granted, the applicant shall be re- each of the businesses. the application shall in- funded the fees paid by him,less ten dollars($10.00) clude a written lease or rental agreement or the for processing the application. written consent of the owner of the property in- tended to be used in the conduct of the business,if (h) Expiration of license Each license granted the applicant is not the owner of said property. under this chapter shall expire one year from date of issuance. Said application shall be signed by the appli- cant in person and, when received by the inspec• (i) Revocation for violation. Any violation of this tor, shall be placed on file by him. The name of chapter shall be grounds for revocation of license the applicant shall be registered by the inspector on the premises where the violation occurred. in a book of registration to be kept in the office o - said inspector. (j) Disorderly operation. The conduct of any food establishment in a disorderly manner or permit- (b) Determination of area. The following areas ting any immoral conduct or practices therein or shall be used for the purpose of fixing the license the violation of any of the.rules or regulations of fee to be paid; all areas used for selling, process the division of public health, department of fire _ ing, packaging, serving and cold storage used i and safety services, or department of police, or - " connection with the business carried on at th any other city agency, shall be sufficient cause _- premises. for the refusal of license or the revocation of any � license already issued to the keeper or owner thereof. (c) Inspection by diaision of public healtlz. copy of all food license applications shall be re (k) Bakery and bakery outlets Bakeries and bak- ferred to the director of the division of publi ery outlets shall comply with the rules and regu- health or his authorized agent for review. Afte lations promulgated by the State of Minnesota the report and recommendation of the directo Commissioner of Agriculture. have been received by the inspector,he may the grant or deny such application in accordance wit (1) Prior inspection. Every person who applies these chapters. for or holds an A2 Grocery license under this chapter and a peddlers license under Chapter 345 (d) Single fee for manufacturer and distributo of this Code,and intends to sell or sells any read- If the applicant is both a food manufacturer an ily perishable food or any food consisting in whole distributor and is manufacturing and distribu or in part of fish, shellfish or shrimp or other ing the same product or products from one plac edible crustacea, shall not make any sale or hold . of business,he need obtain only a manufacturin such food out for sale unless and until the direc- license for both types of business and pay one fe tor or his authorized agent has approved the source therefor. of said food and inspected the food establishment with all its equipment and found the same to be (e) Manufacturer or distributor includes whol in conformity with applicable health codes and sale and retaiL A duly issued license for a foo regulations. Such licensee shall give the two (2) manufacturer or distributor shall authorize th days' notice before a change in the location of the licensee to conduct either a wholesale or reta food establishment. business at the same establishment and for th (Code 1956, §291.01(2-13);Ord.No. 17003,3-22-83; sale of the same product or products. Ord. No. 17097, 1-5-84) �''� �-�-= �....-�i 20 8 ._.�, L CENSES §409.02 (11) No licensee shall receive any materi 1 f Sec. 409.02. Definitions. use in the licensed business from an pe - son under the age of eighteen (18) ea s As used in this chapter, the following terms without the written consent of the p re t shall have the meanings ascribed to them in this or guardian of such person, which sh 11 e section: kept on file by the licensee for at lea t o e Club shall mean a corporation organized under Ye�'• the laws of the state for civic, fraternal, social or (12) Any licensee shall be subject to reas ab a business purposes or for intellectual improvement inspection at reasonable times by rop r or promotion of sports which has more than fifty city of�cials as in the case of other li ens d (50) members and for more than a year owned, businesses. hired or leased a building or space in a building of such extent and character as may be suitable and (13) Licenses issued hereunder shall ot e adequate for the reasonable and comfortable ac- transferable. commodation of its members, and whose affairs (Code 1956, § 341.06) and management are conducted by a board of directors, executive committee or other similar Sec. 408.06. R.enewal, revocation an s s- body chosen by the members at a meeting held pension. for that purpose,none of whose members,officers, (a) Any person to whom an initial lice se as agents or employees are paid,directly or indirect- been issued hereunder may obtain renewal he of ly, any compensation by way of profit from the by filing an application with the inspect r i di- distribution or sale of beverages to the members cating any changes in the material submit d th of the club or to its guests beyond the amount of the initial application. The inspector sha ci u- such reasonable salary or wage as may be fixed larize the application to those officials ho re- and voted each year by the directors or other view initial applications and the license al be governing body. granted of course by the council unless in its Exclusive liquor store shall mean an establish- judgment, reports from city agencies or f om he ment used only for off sale and on sale sales of public demand a formal hearing be held. No ni- intoxicating liquor, except that, upon obtaining tial licenses shall be granted hereunder f r o er proper state or city licenses for such sales,cigars, premises except in I-1,I-2 and I-3 Industrial � cts. cigarettes, all forms of tobacco and nonintoxicat- (b) The council may revoke, suspend o re e ing malt beverages and soft drinks may also be to renew the license of any person hereu de for sold in said exclusive liquor store at retail; pro- any violation of this or any other ordinan e o the �ded,further,that such nonintoxicating malt bev- city,or of any statute or regulation of the ta e of erages and soft drinks, when sold pursuant to an Minnesota or agency thereof. off sale liquor license, shall be sold for consump- (Code 1956, § 341.07) tion off the premises only. General food store shall mean any place of busi- Chapter 409.Intoxicating Liquo * ness carrying a stock of food supplies and primar- ily engaged in selling food and grocery supplies to Sec. 409.01. License required. the public. No person shall sell intoxicating liquo for con- Hotel shall mean an establishment with resi- sumption at any time or place in Saint P ul �th- dent proprietor or manager, where, for payment, out a license. food and lodging are regularly furn'ished to tran- (Code 1956, § 308.02) sients, and which maintains,for use of its guests, no fewer than fifty(50)guest rooms with bedding 'Cross references—For general provisions pe ain ng to liquor and beer,see Tit1e xxlv;nonintoxicating alt 'yuor, and other suitable and necessary furnishings in Ch.410;use of beer and intoxicating liquor in dri -in otion each room, and which has a main entrance with picture theatres prohi,ited,§41s.os(b>. suitable lobby,desk and office for the registration • 2171 ! � � rc W � U �1 C C � � v < � �� u u LL' z ' M o a LlCEHSE � ° � _ � M o m �1 � W r � � W p ry� � M � 4 a � +� � �U ,JU(,•� , � ` � � ... ,�� 0 (`1� O u � i ��3 � � � � � � o ° V 00 : ' ° '--� �J a }}}.�.�� j � ''� � �i � � u o < � U1 �I � -4� � • • � �j � N N y ' � _ � � W � � x � Rs � n w � � � W < < o a� � •� � � � � � a � � � +� +� � � b �' � '� a�'i '�,' �' �' � � W ' � < i m � � � ,� � O [-� V � > > n ' �-1 � �•� � � � �;,� � i -� U] �► � o '� � H `� �3 a� o � � �, � � A �{� W o � � v +► �i C`� +�3 �� •� ,°� ' ; ^� O � O ❑ m c � �,�j td S-1 Q+ 'U1 i ' r 1 . �i�', Y � i b� � �� v y,�� '� � " �� • �J W g o � � � � � ° ,� � � a > � : � � �� x � � � � � v � � ` 0 6 S � < v +► a� a-► a� +'r o � p, W ¢ O U u� � W � ° g _ F ° � �i �i s� ,� ": � � A < = Pa u n W ❑ F— � O � N O •�I 4-a O � ��-y O o � 4 N � t� < � � � � •^_ x � � N R! 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J • F ; °i � � rt � � � v '� .Q' � � � a ` S f "' ' � �' � �R+ U 3 +'� A 'iv w � a a . i r z '� � � 'I-� N RS �.y N r�d .f., r-�i •ri �-I N � a > w ,� � O � � N '� � � Oo � ° a � ; � � .� .� �' �' 3 � � � g � � < u Z � 3 � � t�11 � �n � � N Va ° o X ON � � � � � 't3 � � c�ll W � '� � i °z N +� � I < = W on m N � ��' N �' O �, � � �, � �, � � o � � � x � � - > Y - � < _ _ " .� (�� .� � � +� tn � O A rtS � •� t(-�� o ( F� .� U V r F N ?-( ��y � R� �U � � j� (-! ��(�'jj W Y „ 4� O Fy � V� t � f Y f � O < a 01 �U 'ri O � � �� Ra < c U� e z � a .-1 •ri N' � � ° O ° �= s j N u < � y,� . . �j f�-' .�j.� ,Q� N N r� � u < _ � •• a.°� °' a.� �, ''� .� `� �n � a ,� o ► u � ; � , � � � � s� o � � � v � o o � x W F +� '� � +► � `� o � a� a� g = � „ o • < � RC FC 3 � H � a-► � rtt � �-+ � � � � � Z F u � W i > ♦ O W ` ` � W � � o o < o z � � i .� V .. e� c; � ° '° e ^ a+ ;�, �i , 68�0 68�� LIQUOR ACT 340A.414 ' � �I . , �` Ii ' of age may be voters voting on the question in clau (2 vote yes, the governing body may issue � � � n the premi additional on-sale licenses in the num r s ted in the question. � 'I �; . �' r in bussing a� -i'.Subd. 4. Exciusions from license 1 mit : On-sale intoxicating liquor licenses may �`� � ' ing liquor an be issued to the following entities by a ity, in addition to the number authorized by " ' ' �tel where onl' this section: - - ; i � � r sell any vGiri' ��(�) clubs, or congressionally chart ed eterans organizations; '" ' ritory in which I� i ,' � '(2) restaurants located at a racetra k li ensed under chapter 240; ' _ i in which,:` ' r,(3) restaurants that are issued licen es t sell wine under section 340A.404,subdi- � ! ' oceedin g s .. v�si o n 5; �, � of intoxicatin �: . �e�� ;(4) Lake Superior tour boats that are �ssued lice n s e s u n d e r s e c t i o n 3 4 0 A.4 0 4, i �72, must�ha subclivision 8;and wed, reissu �(5) theaters that are issued licenses un r section 340A.404, subdivision 2. � r�.'� �Subd. 5. Off-sale licenses. No off ale 'ntoxicating liquor license may be issued � ' �� uL"any city, except as provided in this s cti , in excess of the followin limits: � ubd 1;ISp1Q8' g � �,{:�.. �(1) in cities of the first class, not ore than one off-sale license for each 5,000 .,�,f pulation; and NG LIQU�1 , .(2) in all other cities the limit shall be etermined by the governing body of the �,: �,, I ty• . _. icense ma ; `Subd. 6. Area that has been anne ed r eonsolidated. A license validly issued tlowmg lmu thin the number prescribed in this sect on i not rendered invalid or illegal by reason ' '1 ioq up to the consolidation or annexation of te 'to to a city and may continue to remain � � - �' effect and be renewed, except that t li itations as to ownership under section �� a z. or eve ;�.412, subdivision 2. • � ��` � �� , :d �story: 1985 c 305 art 6 s 13 � � ' i'' ;i`� .n-" _ f � ' f .; ' �� 414,�LICENSING OF BOTTLE U S. ' ��'Zi Subdivision 1. Permit required. N bu iness establishmen t o r c l u b w h i c h d o e s � n s ix l iks �b o l d an on-sa le intoxicating liquor ice e may directly or indirectly allow the five�� mption and display of intoxicating iqu r or knowingly serve any liquid for the � �r.hce of mixing with intoxicating liquo wit out first having obtained a permit from � �a+"� commissioner. r ''�� Subd• 2• Eligibility for permit. (a) e ommissioner may issue a permit under �s coun . - tion only to: � ezce.0 , � . . , ,- - � >, _� . r,r� Y ` 1) an applicant who has not, with fi e years prior to`the application, been =,js� cted of a felony or of violating any p vis n of this chapter or rule adopted under i�� i'$: apter, _ .+; r , S� 2) a restaurant; - rnin 3)�a hotel; : _ . . . � `` ' 4) an establishment licensed for the ale f nonintoxicating malt liquor; - �i i r ,i =� rmi�t ie� S)a,resort as defined in section 157 1; nd ., ;;__ _ � �' � "'n� ..,._ � ;,� i, � ions � 6) a club as defined in section 340A.1 1,s bdivision?,or an unincorporated club I `, �I f �, t � .. meeting that definition. �: . : . ,., � . - ;� �I'� ` ory: �) The commissioner may not issue pe it to a club holding an on-sale intox- �' }��1 '; 'Y�,. liquor license. - . _ � , i � - ��iti �.'3. Only authorized to . , . , .:. , . . permit t `co sumption and display. A permit issued � ` �� ' � � � ;:lhis section authorizes the establish ent o permit the consum ption and d i s p l a y I: ; j4, "� �i` x icating liquor on the premises. : he ermit does not authorize the sale of I '`'t I '' '� rfa�- .ting liquor. , � . . , � . � ' �• 4• Permit expiration. All pe , ts i ued under this section expire on June �' � '� r �y ��h year. � ::� � �' S• Loca1 consent required. A pe it ssued under this section is not effective I� ; � '' ,a},� spproved by the governing body of th cit or county where the establishment is �� i ��i. i'� '` � i t ,; �� j � � . � �� i I � 1� I � . . . � '+ ' � �i 1 • . . i:l� ,I ;� h: ' i �S 1 � �II �� K. i � � � , a��,� ' � � ' 340A.414 LIQUOR ACT 5 �� ,- i � " Subd. 6. Permit fees. The ann al f e for issuance of a permit under this ��'� :� ' i ;� is$150. The governing body of a cit or c unty where the establishment is loq�"- ' ,t,z-.� � impose an addition of fee of not m e t an $300. �, •- 1�� Subd. 7. Inspection. An establi hm nt holding a permit under this sectioa i� vety licens� + ` for inspection by the commissione an the commissioner's representative;ar�d ' alcoholic 1 peaGe officers,who may enter and in pec during reasonable hours.Intoxicating iiqpip' inent is � sold, served, or displayed in violati n o law may be seized and may be disposed`" �ory; 19b � ' under section 297C.12. " _ }� ' Subd. 8. Lockers. A club issue a ermit under this section may�allow m� �2�SAL� ^� � to bring and keep a personal suppl of intoxicating liquor in lockers on the cl�p� • �; �� premises. All bottles kept on the pr mi s must have attached to it a label sign'", .�'sO° I the member. No person under 19 ye rs o age may keep a supply of intoxicatin ti ges for the i` � on club premises. r+$' tory�.198 ,. t � ,'I _� � „ Subd. 9. One-day city permi s. city may issue a one-day perm�t�fo? �`��`� •� � �{ I consumption and display of intox' ti g liquor under this section to a non 3�PER. � �� j organization in conjunction with a s cial ctivity in the city sponsored by the or�atl bdiyision 1 , ', !! ., tion. The permit must be approved y t e commissioner and is valid only for ttu� I retail�ini '�� ,�!�' indicated on the permit. The fee fo the permit may not exceed$25. q city ma - " ' '° , , r ' � � t holder un � �� issue more than ten permits under is ction in any one year. "�°- 'ume_alco� �� Nr'��'. ' ' Histo 1985 c 305 art 6 s 14; S 1 85 c 16 art 2 s 3 subd 1 . J '� � ry. p us�v ,person u �t�' ; usehold of � , I �� 340A.415 LICEN SE RE V O CA T I N R S U S P E N S I ON. ,� ,�"� " � � �� I'� The authorit issuin or appro n n retail license or ermit under this cha an,,,:,,; . • ,€.',I Y S g Y P ubd.:.2. F ;i;i shall either suspend for up to 60 da or evoke the license or permit or impose a'c�i'�r 1)�to sell;b� , �'' fine not to exceed $2,000 for each iol tion on a finding that the license..or.. ','exce t tha holder has failed to comply with a ap icable statute, rule, or ordinance relating, p `'�ish alcoho alcoholicbeverages. No suspension r re ocation takes effect until the license or pe ., �parent or f holder has been afforded an opport nit for a hearing under sections 14 57 to 14. �4�� (2 �under th� , of the administrative procedure act �- ,,�-... . , . �;:;Sf �ge�or History: 1985 c 248 s 70; 1985 30 art 6 s 15; 1985 c 309 s I1; 1Sp1985�,lb.� (3)_to indua 2 s 3 subd 1; ISp1986 c 3 art 1 s 42 � '�""D` � h"olic beverag ��'`�� Subd: 3. P 340A.416 LOCAL OPTION ELE I N. � ;,<<tj� �. � Subdivision 1. Petition. Upo re ipt of a petition signed by 30 percent of �t,,,any alcoh persons voting at the last city elec on r 200 registered voters residing in,the�ci:' hold of the whichever is less,a statutory city or om rule charter city of the fourth class shall p:y hold of the before the voters of the city the q sti n of whether the city will issue intoxica fiace other tha� liquor licenses. _ '�� '- S�ubd. 4. En �,�..i Subd. 2. Ballot question. The ues ion of the referendum under this sectionrm� 1 years to entt • � , be on a separate ballot and must all th voters to vote either"for license"or"aga�� nicipal liquor� � � � license." � ' 'r holic beverag� � �. ,... i ; j Subd. 3. Effect of election sul s. If a majority of persons voting on� .. �) Notwiths •! } {''i referendum question the vote "ag 'nst license" the city may not issue intoxica� me rule chartei liquor licenses until the results of t e re erendum have been reversed at a subsequ � blishment lice r; : election where the question has be s mitted as provided in this section;; :'j�i�-�'` �(1) pedorm� � Subd. 4. Certification to secr of state. The clerk or recorder must ce � ,unless other ` results of a referendum held under t is ction to the secretary of state within ten da (2) consume �� of the election. =r�.�I _: �(3) attend sa Subd. 5. Challenge of electi . here the results of a referendum under ..: uoi is not sold. section are challenged by any vot r, t e county attorney of the county where� _ Subd. 5. M election was held must appear in d fen e of the validity of the election. ' �'�2.�� 'Years to claim :��o erages. History: 1985 c 305 art 6 s 16 , :;: 2,;; '.Subd. 6. P . ��';� erages may be� r� d,or in the ca; � ,. � � � � I� ;�; _ • - ��J �� §403.06 LEGISLA E C DE .:; :�, � h Sec. 403.06. Bingo equipment. 1) A meeting place or club rooms where in- All bingo hall licensees shall provide and main- t°x�cating or nonintoxicating liquors or bev- tain in good working order the following bingo erages aze not permitted for consumption, equipment• reusable bingo cards and bingo mark- dispensing or storage either by the club or ers, if needed; bingo blower, flash board, master any member thereof or any other person; board, monitor system,bingo balls, public address or , system and numerical counter. ) Places holding on-sale retailer's licenses for the sale of intoxicating or nonintoxicating liquors. Chapter 404.Private Clubs* (C de 1956, § 392.01) Sec. 404.01. License required. . 404.04. Location. No person-shall keep or operate a private club ) Area prohibite� maximum numben No li- in Saint Paul without a license. ce e shall be granted hereunder for the opera- (Code 1956, § 392.01) ti of a private club except in a B-2 Community B iness District,a B-3 General Business District, Sec. 404.02., Definitions. I-1 Industrial District, and an I-2 Industrial � D' trict; nor shall there be more than one such The follovt�ing definitions shall apply to this li nse issued for every seventeen thousand(17,Q00) chapter: ' i abitants of the city, which shall not be trans- (1) Person, for the purposes of this chapter, is fe able from person to person. Private clubs li- defined to mean and include a natural per- ce sed on April l, 1976, even though in excess of son, firm, partnership, corporation, associ- � above limitation,may continue to operate and - ation,society or organization or any group h e their licenses renewed so long as such clubs - _ of natural persons. co ply with all other provisions of this chapter a other laws.Bottle clubs having a state bottle (2) Private club is defined to mean and include cl b permit on April 1, 1976, and continuously both the place, meeting rooms or premises � reafter,may obtain a private club l�cense with- used or held out to be the meeting or gath- o regard to the numerical or population limita- ering place for members of the private club, ti ns above,so long as such clubs comply with all and any corporation or unincorporated as- ot er provisions of this chapter and other laws. sceiation, or person as defined, regardless 'vate club licenses issued to clubs which had of the number of inembers, organized for ei her a state bottle club permit or a private club civic,fraternal,.sceial,business or charita- li nse on Apri11, 1976,shall not be transferable ble purposes or for intellectual improvement fr m person to person. or for the promotion of sports, which per- e provisions of Section 409.16(d)and(fl through mits the storage, dispensing or consump- tion of any intoxicating or nonintoxicating �� the extent applicable, shall apply to the liquor on the premises." co cil's initial issuance of private club licenses (Code 1956, § 392.02) p suant to this section; provided, however,that - priority listing contained in Sec�ion 409.16(fl(2) Sec. 404.03. Egemptions. � 8 1 be revised as follows: The following are exempt from the requirements 1) As an absolute priority, an applicant who of this chapter: . at some previous time was licensed by the state and/or the city as a private club or •G�oss referencea-Liquor and beer,Title XXIV;gambling, bottle club. Ch.270;disorderly houses,Ch.271;lawful gambling,Ch.402; dance halls, Ch. 405; game rooms, Ch. 406; intoxicating li- 2) All other applicants, in the order by date quor,Ch.409;nonintoxicating malt liquor,Ch.410;�on�ersa- and time on which their completed appli- _ tion Partors,Ch.413. cations were received by the license inspector. ` Supp.Na 1 - • _.. �� ^: 21 2 .,.;=:s;'�:.c;. LICENSES §404.07 � .:..;.-::; :``''�.:-_:s. ��:::4,;._,;: ;:i:4 (b) Distance from school or church, etc. o i- tion as he may require, which shall at a mini- vate club shall be licensed for any prem' es o- mum contain the following: cated within three hundred (300) feet fro a elementary or secondary school, church o sy a- (1) The name and place of residence of the gogue, said three hundred(300)feet being cal - applicant; _ lated and computed as the distance measur d i a (2) The exact lceation of the premises upon atraight line from the main entrance of the re - which the applicant proposes to operate the ises proposed as the location for the club 1 ce e private club; to any elementary or secondary school, ch ch r synagogue in the area for which the lice se 's �3) Whether the applicant has ever been en- sought. gaged in a similar business and, if so, the location thereof and the date when so (c) Consent requirements. No person sh 11 e engaged; licensed to keep or operate a private club 'th n two hundred (200) feet of any private resi en �4) Whether the applicant proposes, in addi- dwelling or apartment house,unless conse s e tion to the conducting of ineetings,to provide: obtained as follows: The applicant shall p ese t a. Instrumental music with dancing for with his application a statement in writing o t e - the guests therein; owners and tenants of ninety (90) percent f 1 b. For the serving of food for consump- private residences, dwellings and apartment o tion on the premises; lceated within two hundred(200)feet of such re - c. Nonintoxicating beverages for consump- ises to the effect that they have no object n o tion on the premises; and the granting of such license or the operat n f - ' the private club at the location proposed; p ovi - �5) A complete listing of the names, addresses , ed, nevertheless that no consents shall be ece - and telephone numbers of each member of �'�'�:''S� sary when the premises whereon the privat cl the private club, together with the date is proposed is zoned as I-1, I-2, or I-3 Indu tri 1 each such member joined such club. District. Private clubs already licensed o t (b) The application shall be signed by the ap- effective date of this section (June 6, 1977) ma plicant in person, and if the applicant is a corpo- continue to operate and have their licens s r - ration or other type of organization,by an officer newed without regard to the requirements o th' of the corporation who shall agree to comply with section, so long as such licensees continue to co - all of the ordinances of the city relating to the ply with all other provisions of this chapte an conducting of a private club. other laws. Applications for new licenses a fo (Code 1956, § 392.04) the transfer of licenses as defined in Section 3 01 made after the effective date of this section ha Sec. 404.07. Investigation. comply with the consent requirements cont ine �enever an application for a private club li- in this section. cense is filed with the license inspector, he shall (Code 1956, §§ 392.07,392.11;Ord.No. 174 , § register the same in a book for that purpose and 1,2,6-11-87) shall refer the application immediately to the di- Sec. 404.05. Fee. rector of the division of public health,the director of the department of police, and the director of The fee required is three hundred dollars($3 .00 the department of fire and safety services, who (Code 1956, § 392.03) shall prceeed to inspect and egamine the prem- ises described in the application and report to the Sec. 404.06. Application. inspector whether the applicant is a proper per- (a) Any person desiring a license under thi �n to receive such a license and whether the chapter shall make application in writing t th Premises are suitable for the business of a private � inspector on such forms containing such info a club.Upon receipt of the reports by the inspector, :, °�- Supp.No.l � 163 $404.07 LEGIS N CODE � - he shall transmit the reports to the council for r renewal of a license impose such reasonable their consideration in connection with the appli- onditions and restrictions on the manner and cation. ircumstances under which the private club's li- (Code 1956, § 392.04) ensed activities shall be conducted so as to pre- erve the public peace and protect and promote ood order and security. Sec. 404.08. Hearing, issuance or denial of ode 1956, § 392.08(a),(b),(d),(e)) application for license. (a) Public hearing; discretion of counci� The c. 404.09. Regulations;prolubitions. applicant and all interested parties are entitled (a) Inspection. It shall be a violation of this to a public hearing in connection with the appli- hapter for the holders of such license to prevent cation. The council shall have the discretion to ntry by police officers or the inspector when said consider, in denying or granting the license, any ntry is for the purpose of inspection and when fact or circumstance reasonably relating to the id officers or inspector are on official duty. public health, safety and welfare, including, but not limited to,the following: (b) Hours of operation. No private club shall ermit any person to consume or display alcoholic (1) The character and suitability of the area or everages nor shall any person consume or dis- neighborhood in which the private club is lay alcoholic beverages after 1:00 a.m. on Sun- lceated; ay nor between the hours of 1:00 a.m. and 8:00 (2) The proximity of the site for the private •m. on any weekday, nor between the hours of club to churches, schools,playgrounds,parks '00 a.m.and 8:00 p.m.on any primary,special or or other community facilities which are or neral election day in any club premises not would be adversely affected; ��ically for members residence purposes. - (3) Numbers and proximity of existing private (c) Live entertainmen� Private clubs licensed clubs or state-licensed bottle clubs so as not reunder shall not provide for members any in- to cause excessive concentration in an area ental music, singing or vaudeville entertain- or neighborhood, even though within the ent without a license under Chapter 411. limits in Section 404.04(a); ( ode 1956, §§ 392.05, 392.06, 392.10) (4) ��c congestion and parking problems; c. 404.10. Pull�abs,tipboards permitted. and Private clubs which are federally chartered as (5) Reasonably anticipated likelihood of exces- e ther fraternal or veterans' organizations may sive noise, disturbance or fighting by per- c nduct lawful charitable gambling on the licensed sons in or about the private club. p emises, subject to the following conditions: The council may deny a license application, or (1) The organization must be eligible for and refuse to renew a license, on the basis of a deter- obtain either a city gambling permit or state mination that the public health,safety or welfare gambling license. would be otherwise adversely affected, taking into account one or more of the facts or circumstances �2� The organization may not receive any rent in this section together with any other relevant from gambling proceeds. facts bearing on the public health, safety and 3) The only forms of gambling permitted,other welfare. than bingo, shall be pull-tabs or tipboards � (b) Restrictions may be imposed Where a rea- approved by the license inspector. sonable basis is found by the council to impose 4) The organization must demonstrate to the reasonable restrictions upon the license, taking license inspector that at least five hundred into consideration one or more of the above facts dollars ($500.00) in gross gambling reve- or circumstances, the council may upon issuance 'nues weekly are or will be generated. , Supp.No.1 2 �� . . � ` ��1;�•, LICENSES §405.02 (5) The organiZation may not partic pat in a maa�imum of eighty (80) percent, which charitable gambling in any licens li uor percentage shall include free plays awarded. establishment. (Ord.No. 17374, § 1, 7-17-86; Ord.No. 17543, § 1, (6) Proceeds received from the gambli g a tiv- 3-10-88) ity may be provided only to those o ga 'za- tions and activities eligible under Sec ion Chapter 405.Dance Halls* 409.22(a). Sec. 405.01. License require.c�; definition; cer- (7) Must file with the license inspect a u- tain exceptions. ally a list containing the names nd ad- dresses of all current members. (a) License. No person shall conduct a public dance hall in Saint Paul without a license. (8) Must file financial reports weekly ith he license inspector. (b) Definition. "Public dance hall" means and includes any room, place or space open to general (9) Must e�ibit and sell pull-tabs and ti bo ds public patronage in which is carried on dancing in a method as required by the ice se wherein the public may participate, whether or inspector. ,. not a charge for admission for dancing is made, (10) Workers or managers may not di ge he and a public dance is hereby de�ned to be one number of or the dollar amount of t e 'n- �'hich is or may be attended by the public gener- ners at any time. ally, whether or not a charge for admission for dancing is made. (11) Shall not comingle game cards. (c) Liue entertainment Every place licensed under _ (12) Shall pay employees a minimum age of this chapter, which is also licensed for live enter- - three dollars and thirty-�ve cents $3. 5) tainment under Chapter 411, shall not, when op- -� per hour (Federal minimum wage) nd o erating such live entertainment,be subject to the more than five dollars($5.00)per h r. provisions of Section 405.04. (13) Shall comply with all the provisions f M n- (Code 1956, §§ 405.01, 404.01, 404.08) nesota Statutes, Chapter 349. Sec. 405.02. Fee. (14) Gambling manager's compensation s 1 ot exceed fifty dollars($50.00)per wee . (a) The fee required is as follows: (15) Shall register with the State Gambling Bo d (1) Area less than 2,500 square feet . .$ 48.00 all equipment and supplies used i a i- (2) Area between 2,500 and 5,000 square censed private club. feet . . . . . . . . . . . . . . . . . . . . . . . . . 80.00 (16) Shall post in a conspicuous place ruI s a d (3) Area between 5,000 and 6,500 square regulations concerning charitable g bli g feet . . . . . . . . . . . . . . . . . . . . . . . . . 110.00 as required by the license inspector. (4) Area more than 6,500 square feet . 160.00 (17) Shall pay to the city-wide organizati d s- ignated by the city council ten(10)p rce t (1�) The council may waive the required fee in of the net profits from selling pull-t bs r the case of any lodge or society, not organized or tipboards to be distributed to other ou maintained for pro�t, desiring to conduct public athletic organizations to be expend d f r dances. such lawful purposes as specified i Mi - (Code 1956, § 405.05; Ord. No. 16883, 2-11-82) nesota Statutes, Chapter 349. (18) The organization Shall nOt use a pull- b '�'oss references—Curfew for minors,Ch. 230;provisions regulating liquor and beer,Title XXIV;disorderly houses,Ch. tipboard which dces not return to the p ye 2'71; solicitation to vice,Ch. 272; noise regulations, Ch. 293; , a minimum of seventy-five (75)percen , n private clubs,Ch.404. t.��;: Supp.No.4 2165 . � ,; .. _ ��_ ,/�,�- �� ;,:`'µ�2 LI NSES $310.01 :r��.,".-��.��'-,`�' SUBTITLE A.IN GENERAL Legislatiue • - . Code Chapter 310.Uniform License Procedur s Class I Licenses Chapter Automobile Repair Garage and Sec. 310.01. Definitions. Body Shop 315 Animal Foods Manufacturing and For the purposes of this chapter,any chapt r o Distributing 316 the Legislative Code pertaining to licenses as re- Amusement Rides 317 inafter mentioned, and subsequently enacted rdi- Mechanical Amusement Devices 318 nances establishing or relating to the requirem nts Bill Posters 319 for Class I, Class II and Class III licenses u de Bituminous Contractors . 320 authority of the City of Saint Paul, the t Boarding and Roominghouses; defined in this section shall have the mean ng Dormitories 321 ascribed to them: Bowling Alleys; Pool Halls 322 • Christmas Z�ee Sales 323 . Adverse action means the revocation or sus en Cigarettes 324 sion of a license,the imposition of conditions po ' Close-Out Sales 325 a license,the denial of an application for the ant Building Contractors 326 issuance, renewal or transfer of a license, an Dry Cleaning and Dry Dyeing any other disciplinary or unfavorable action e Plants;Laundries 327 with respect to a license,licensee or applica fo Electrical and Appliance Repair 328 �.:-:�� a license. Fire Alarm—Telephone Devices; �r�-��'_�' Apparatus Installers 329 �.:.,._.a.s: . t;a�rt' Bond means a bond meeting the require n Florists 330 z::�: of Section 310.07 and indemnifying the Ci y o Food License 331 Saint Paul against all claims,judgments or uit Fuel Dealers—Liquid Fuel 332 caused by, resulting from or in connection it Fuel Dealers—Solid Fuel 333 " any licensed business, activity, premises, t in Fumigating—Pest Control 334 facility, occurrence or otherwise under es Gasoline Filling Stations 335 chapters. Private Fuel Pumps 336 - Hardware Stores 337 Building official means the supervisor of cod House Sewer Contractors 338 enforcement in the department of comm nit Ice Cream Processing and Distrib- services. . uting 339 Chapters and these chapters shall mea th' Mercantile Broker 340 Uniform License Ordinance, any chapter t Milk 341 Legislative Code pertaining to licenses as er - Oil—Bulk Storage 342 inafter mentioned, and subsequently enacte ord - Opticians 343 nances establishing or relating to the require en Pawn Shops . 344 for Class I, Class II and Class III licenses nd r Peddlers 345 authority of the City of Saint Paul. Soliciting 346 Pet Shops 347 Class I licenses means those licenses whic c Radio and Television Repairs 348 be approved and issued or denied by the i spe - Rental of Clothing 349 tor, subject to the procedures required by he e Rental of Hospital Equipment 350 chapters.The following licenses are so clas ifie , Rental of Kitchenware 351 and the numbers shown opposite them corre po d R.ental of Trailers 352 '""�r��=f. to the chapters in the Legislative Code pert ini g 8oller Rinks 353 ;....�......, '''•Y'�`�`�' Sanit Dis osal 354 -�•�° to each license: az'Y P �:::�� . Supp.No.4 • 202? •y . , � -�.: 4 310.01 , LEGIS CODE �•-' ;' �.•i:.t: • •+,>�. '�i�rs+ , Legislatiae Legislatiue � Code Code Class I Licenses Chapter Class III L•icenses Chapter Secondhand Dealers 355 Auctioneers 400 Sidewalk Contractors 356 Motor Vehicle and Parts Dealer 401 Solid Waste 357 Bingo 402 Sign and Billboard Construction 358 Bingo Halls 403 Sound Trucks and Broadcasting Private Clubs 404 Vehicles 359 Dance Halls 405 Public Swimming Pools 360 Game Rooms 406 Tow�ucks—Service Vehicles 361 Hotel 407 � Z�ee�imming 362 Junk Salvage and Scrap 408 Vending Machines 363 Intoxicating Liquor 409 Veterinary Hospital 364 Nonintoxicating Liquor 410 Window Cleaning 365 Entertainment 411 Block Parties 366 Massage Parlors and Saunas 412 Tattoo Parlors �367 Conversion Parlors 413 Wrecking of Buildings 368 Masseur-Masseuse 414 Building�ades Business Licenses � 369 Motion Picture Theatres 415 Building Trades Certificates of Motion Picture Drive-In Theatres 416 Competency 370 Parking Lots 417 Finishing Shop 371 Taxicabs 418 ��- �.: Tire Recapping Plants 372 Gambling License . 419 �- �ansient Merchants 373 _ ; Director means the director of the department � Class II licenses means those licenses which of finance and management services, unless oth- must be approved or denied by the director, sub- erwise defined in the specific chapter, section or ject to the procedures required by these chapters. subdivision referred to. The following licenses are so classified, and the _ . numbers shown opposite them correspond to the Division means the division of license and per- chapters in the Legislative Code pertaining to mit administration in the department of finance each license: and management services. Legislative Fee means and includes both the license fee Closs II Licenses Code �d application fee unless otherwise provided. Auctioneers—Short Term License Chapter 390 City Gambling Permit Section 402.06 License means and includes all licenses and Soliciting Funds—Tag Days Chapter 391. permits provided for or covered by these chapters. Temporary On-Sale Beer Section 410.10 person means and includes any person, firm, Temporary Wine and Liquor Section 409.25 corporation, partnership, company, organization, Class III licenses means those licenses which agency, club or any group or association thereof. can be approved or denied only by the council, It shall also include any executor, administrator, subject to the procedures required by these chap- ��e��iver or other representative appointed ters. The following licenses are so classified, and by law. • the numbers shown opposite them correspond to Zoning administrator means the supervisor of . the chapters in the Legislative Code pertaining to code enforcement in the department o� commu- each license: � . . . . _ .. _ :,, . _ .� .. i::;�; - . . � . � . .. `ti��:.� . Supp.No.4 • � � 28 , •, • , _ . r•,�:� IC NSES 4 310.02 ..!>• .�,; • ';'• .�� ._':�,:yy '.�.Y,�'�� 7 nity services, or the o�cial charged with respo - If a license is issued, renewed or transferred be- sibility for enforcement of the zoning code. cause of the existence of an agreement as described (Code 1956, § 510.01;Ord.No.17303,§ 3,10-29 5; in subsection (1) above, the license may be re- Ord.No. 17569, § 1, 6-7-88) � voked if the licensee defaults upon such agreement. Sec. 310.02. Application. (c) Additional information. The inspector shall prescribe the information required to be submit- (a) Form. All applicants for licenses or pe ts ted by each applicant in his application, in addi- issued pursuant to these chapters shall make b tion to that required by spec�c sections in these original and renewal applications to the inspe or chapters, as may be necessary to carry out and on such forms as are provided by the divisi n. enforce any provision hereunder. He shall require Such applications shall not be received by e in every case the applicant to submit his name; inspector until completely filled out, accomp ed business or�corporate name; names of partners, by all fees, insurance policies, bonds, depo its, officers,directors,shareholders or trustees involved sureties, and indemnifications or certificate re- in the business; age; address; description or blue- • quired by these chapters,together with the c rti- print of the premises,if any,and the owner thereof, fication required in paragraph(b)below. and locations and addresses of other business lo- cations in Minnesota. , (b) Taxes. No person shall be granted a lic se -- a renewal of a license or transfer of a lic ns , nial)oNOevoCQ�wLn�tNo pe son may apply forTany required by the Saint Paul Legislative Cod un less,prior to and in addition to any other req ire license within one year of the denial or revoca- ments,rules or ordinances heretofore or here tion of the same or similar license by the city � }'�� re uired,the Ramsey Count De artment of o council, if such denial or revocation was based •'-`�'' �'`�• � y p solel or artiall u on misconduct or unfitness ..a�::- "'::��::�: � erty Taxation certifies that said applican h Y P Y �- paid any �and all taxes, real or personal, b for of the applicant, evidence of violations of law in- said taxes become delinquent, on any pro rt , volving licensed premises, evidence that the ap- real or personal,situated within the City of ai plicant had been involved in tfie operation of a Paul and used in connection with the bu ne nuisance, or fraud or deception in the license ap- operated under said license. plication. Denial of a license, as used in this para- �graph, shall include a refusal of permission to Notwithstanding the previous paragrap , t e transfer a license to the applicant. A license is � council, the director or the inspector may ssu , "similar,"within the meaning of this paragraph, renew or transfer a license if it is found th : if the basis upon which the revocation or denial of the original license was made would have been a (1) The applicant has made an agreeme t s t- relevant basis on which to deny or revoke a li- isfactory to the R.amsey County attor ey o cense of the type subsequently applied for. pay delinquent taxes in periodic install e ; . (e) Reapplication after denia� "interest" of ap- (2) The applicant has properly comme ce a plicant in revoked license. An application by a proceeding to contest the amount f x person ha��ing an interest in,or whose sharehold- due or the valuation of his proper , d ers or officers have an interest in, any premises . has made all partial payments requ ed y or enterprise whose license has been revoked or law in connection with such procee ng;or to which a license has been denied shall be treated (3) The business property with respect t w ch as an application by the person whose license was taxes are delinquent is not owned by he denied or revoked. The term "interest," as used applicant, but by a lessor, and it w ul be in this paragraph, includes any pecuniary inter- inequitable to require the lessee to p y s ch est in the ownership, operation, management or .,f.�; taxes. profits of an establishment,but does not includ?: t��:rt,�t.:ai s . . . . . . '�:.%-' Supp.No.4 2029 . •� • • _ §:i10.0•l LEGISLA NE CODE ?��'��`.'` i�.: ::_�.;�^" bona fide loans;bona fide rental agreements;bona riate, the assistance of other city divisions or fide open accounts or other obligations held with epartments in making additional investigations or without security arising out of the ordinary r the purpose of determining whether the appli- and regular course of business of selling or leas- ant is or will be in compliance with all applica- ing merchandise, fixtures or supplies to such es- le ordinances and statutes.The approval of such tablishment; an interest in a corporation owning ther divisions or departments is not required for or operating a hotel but having at least one hun- i suance of a license unless otherwise required by dred. fifty (150) or more rental units holding a ecific sections in these chapters. All new appli- license in conjunction therewith; or ten (10) per- tions shall be reviewed by the zoning adminis- cent or less interest in any other corporation hold- ator or his designee for compliance with all re- . ing a license. uirements of the Saint Paul Zoning Code, and o new license shall be granted without full com- (fl Prohibition on reapplication; exception. The liance with said requirements. All new applica- prohibition on reapplication herein provided shall t ons involving a premises, location, building or not apply in cases where it is otherwise expressly ructure shall be referred to the director of the provided by statute or ordinance. partment of fire and safety services and to the lg) Waiting period a fl�cr fcling oF petitiorc. Any uilding of�cial for investigation and recom- petition required to be filed with the application endation. for any license shall not be considered as off`ic- � ode 1956, § 510.03; Ord.No. 17361, § 1, 6-5-86) ially filed and irrevocable until seven(7)working days after a petition is received in the inspector's c. 310.04. Levels of approval;recommenda- office. During the seven-day waiting period, any tions. sign�tor of any petition may withdraw his name (a) Class I licenses. Where an application for - � therefrom by written request, and such request e grant,issuance,renewal or transfer of a Class -'�`-� shall be appended to the subject petition and made ��`�'`'�� a part thereof. After the seven-day waiting peri- I license meets all the requirements of law, and t ere exists no ground for denial, revocation or od, signatures may not be withdrawn unless it is s spension of,or the imposition of conditions upon, shown they were obtained by fraud or duress. s ch license,the inspector shall grant,issue,renew Signa�ures withdrawn or obtained by fraud or o transfer said license in accordance with the duress shall not be counted in determining the a plication. sufficiency of the petition. This subdivision shall � apply in any case where the applicant for a li- (b) Class II licenses. Where an application for cense or license transfer must present a state- t e grant,issuance,renewal or transfer of a Class ment in writing signed by a specified number or I license meets all the requirements of law, and percentage of persons that they have given their t ere exists no ground for denial, revocation or consent to the grant of the license or license transfer. s spension of,or the imposition of conditions upon, (Code 1956, § 510.02) s ch license,the director shall require the inspec- t r to grant, issue, renew or transfer said license Sec. 310.03. Investigation and review of new i accordance with the application. � applications,etc. (c) Class I and Class II licenses, if denied by The inspector shall determine the sufficiency i spector or director. In the event the inspector, and accuracy of each new application and obtain i the case of Class I licenses, or the director, in such criminal history information as may be used t e case of Class II licenses, determines that the • under Minnesota Statutes, Chapter 364, and is a plication for grant, issuance, renewal or trans- otherwise available by law. The inspector shall f of the license does not meet all the require- make reasonable and appropriate investigation nts of law or that there exist grounds for deni- of the premises or personal property, vehicles or a revocation,suspension or other adverse action facilities, as may be involved in or related to the a ainst the license or the licensee, the inspector : licensed activity, and shall request, where appro- o director shall recommend denial of the applica- �:;:,::,:; Supp.No.4 20 0 ��::� ICE SES 4 310.05 .N�,;. . •:�•v .,,^;;.;:.:. tion and follow the procedures for notice and hear determination that the decision was based on an ing as set forth in Section 310.05. error of law.The filing of an appeal shall not stay the issuance•of the license. �- (d) Class III licenses. Upon receipt of a ful (Code 1956, § 510.04; Ord.No. 17455, § 1, 5-21-87; completed application and required fees for a Cl Ord.No. 17551, § 1, 4-19-88) III license, and after the investigation require , ' . , the inspector shall notify the council. A publ c hearing shall be held by the council's committ e �c. 310.05. Hearing procedures. designated to hear license matters on the gra , (a) Adverse action; notice and hearing require- issuance or transfer of all Class III licenses. e ments. In any case where the council may or in- council's cominittee designated to hear license t- tends to consider any adverse action, including ters may hold a hearing on the renewal of a y the revocation or suspension of a license, the im- Class III license. In any case where the inspect r position of conditions upon a license,or the denial recommends denial of the grant,issuance,rene 1 of an application for the grant,issuance,renewal or transfer of a Class III license, or where t e or transfer of a license, the applicant or licensee council's committee designated to hear license m t- shall be given notice and an opportunity to be ters believes that evidence might be received t heard as provided herein. The council may con- the public hearing which might result in acti n . sider such adverse actions when recommended by adverse to the application,the inspector or co n- �the inspector, by the director, by the director of cil's committee designated to hear license m t- �y executive department established pursuant ters shall follow the procedures for notice d to Chapter 9 of the Charter,by the city attomey hearing as set forth in Section 310.05.Where e or on its own initiative. application for the grant, issuance, renewal or - transfer of a Class III license meets all the e- (b) Notice. In each such case where adverse ac- �+��,-'�= quirements of law,and where there e:dsts no gro d tion is or will be considered by the council, the . for adverse action,the council shall by resolut on council shall in writing notify the applicant or direct that the inspector issue said license in c- licensee that adverse action may be taken against cordance with law. the license or application, and that he is entitled to a hearing before the council. The notice shall (e) Appea� Class I or Class II licenses. An p- be served or mailed a reasonable time before the peal to the city council may be taken by ny hearing date, and shall state the place, date and person aggrieved by the grant,issuance,rene al time of the hearing. The notice shall state the or transfer of a Class I or Class II license;pro 'd- y�sues involved or grounds upon which the ad- ed,however,thaL the appeal shall have been ed verse action may be sought or based.The council with the city clerk within thirty (30) days er may request that such written notice be prepazed the action by the license inspector or dire or. and served or mailed by the inspector or by the The only grounds for appeal shall be that t ere city attorney. has been an error of law in the grant, issua ce, renewal or transfer of the license. The ap eal (c) Hearing. Where the cause for the adverse shall.be in writing and shall set forth in p icu- hearing is based upon a violation of law and there lar the alleged errors of law. The council al is no dispute as to the facts underlying the viola- conduct a hearing on the appeal within thirt (30 tion, the heazing shall be held by the council's days of the date of filing and shall notify th committee designated to hear license matters.Oth- licensee and the appellant at least ten (10) ay erwise the hearing shall be conducted before a prior to the hearing date.The procedures set o hearing examiner appointed by the council for in Section 310.05, insofar as is practicable, hal that purpose. The applicant or the licensee shall apply to this hearing.Following the hearin th be provided an opportunity to present evidence council may aff'irm or remand the matter t th and argument as well as meet adverse testimony inspector or director,or may reverse or plac co or evidence by reasonable cross-esamination and •=>>'�� ditions upon the license based on the co cil' rebuttal evidence. The committee or hearing ex- �- �: `��;%' Supp.No.4 2031 4 310.05 LEGIS T CODE ;;tj�y':;';`; ,;,.. �.`•�: aminer may in its discretion permit other inter- � (fl Council action; resolution to contain findings ested persons the opportunity to present testimony Where the council takes adverse action with re- or evidence or otherwise participate in such hearing. spect to a license, licensee or applicant for a li- (c-1) Procedure; hearing examiner. The hearing cense,the resolution by which such action is taken shall contain its findings and determination, in- examiner shall hear all evidence as may be pre- cluding the imposition o�conditions,if any. sented on behalf of the city and the applicant or • . licensee, and shall present to the council written (g) Additional procedures where required Where findings of fact and conclusions of law together the provisions of any statute or ordinance require with a recommendation for adverse action. additional notice or hearing prceedures, such pro- The council shall consider the evidence contai.ned �sions�shall be complied with and shall super- in the record,the hearing examiner's recommended �de inconsistent provisions of these chapters.This shall include,without limitation by reason of this findings of fact and conclusions, and shall not specific reference, Minnesota Statutes, Chapter consider any factual testimony not previously sub- 364, and Minnesota Statutes,Section 340A.415. mitted to and considered by the hearing examin- er. The council at a public hearing shall provide �) Discretion to hear notwithstanding withdrawal the applicant or licensee an opportunity to present or surrender of application or license. The council oral or written arguments alleging error on the may, at its discretion, conduct a hearing regard- part of the examiner in the application of the law �g revocation or denial of a license notwithstand- or interpretation of the facts, and to present tes ing that the applicant or licensee has attempted timony related to the recommended adverse ac or purported to withdraw or surrender said license tion. Upon conclusion of the hearing, and afte or application, if the attempted withdrawal or considering the record, the examiner's finding S�ender took place after the applicant.or licen- �:^.`: and recommendations together with such additio see had been not�ed of the hearing and potential -�:��-�-,;�::,- arguments and testimony presented at the hear adverse action. � . � � ing, the council shall determine what, if any, ad �i) Continuances. Where a hearing for the pur- verse action shall be taken,which action shall b ose of considering revocation or suspension of a by resolution. The council may accept, reject o p cense or other disciplinary action invoIving a modify the recommendations of the hearing ex aminer or committee. license has been scheduled before the council, a continuation of the hearing may be granted at (c-2) Ex-parte contacts. If a license matter h �e request of the licensee, license applicant, an been schedule for an adverse hearing, council mem interested person or an attorney representing the bers shall not discuss the license matter wi foregoing,only as provided herein: each other or with any of the parties or intereste �1) Where the request is made at least twenty- persons involved in the matter unless such dis four(24)hours prior to the scheduled hear- cussion occurs on the public record during th � �e resident of the council or the coun- public hearings of the matter or during the coun ci gmay continue the hearing upon a show- " cil's final deliberations of the matter. � ing of good cause by the party making the (d) Licensee or applicant may be represente request. � The licensee or applicant may represent himsel �2� �ere the request is made less than twenty- or choose to be represented by another. four(24)hours before,but not on the day of (e) Recor� evidence. The council shall receiv the scheduled hearing,the council may con- and keep � record of such proceedings, includin tinue the hearing upon a showing of good testimony and exhibits, and shall receive and giv cause by the party making the request. weight to evidence, including hearsay evidenc �3) Where the request is made on the day said which possesses probati��e value commonly accep hearing is scheduled,the council may grant by reasonable and prudent persons in the conduc a continuance on the condition that the Y��'�=�-=: of their affairs. "`;;=:;:= t�';: ,,, : �_:� �<: :�� Supp.No.4 . . 20 2 ,;,=�?_ LI ENSES $310.07 c:p,�;�:..''• . ';�.�3;s•' party requesting the continuance pa to (7) The activities of the licensee in the licensed the City of Saint Paul the city's actual c sts activity create or have created a serious for the court reporter and witnesses ho danger to the public health, safety or wel- appeared for the hearing, or one hun ed fare, or the licensee performs or has per- dollars($100.00),whichever is the less . formed his work or activity in an unsafe (Code 1956, § 510.05; Ord.No. 17551, § 2,4-19 88; manner. Ord.No. 17559, §§ 1, 2, 5-17-88) (g) Failure to keep sidewalks or pedestrian ways reasonably free of snow and ice as required Sec. 310.06. Revocation; suspension; adve se under Chapter 114 of the Saint Paul Leo s- actions. . lative Code. (a) Council may take adverse action. The co n- (9) The licensee or applicant has shown by past cil is authorized to take adverse action agai st � misconduct, unfair acts or dealings, or by any license or permit, licensee or applicant f a � the frequent abuse of alcohol or other drugs, license,as grovided in and by these chapters.�S ch �. that such licensee or applicant is not a per- ' actions shall be initiated and carried out in ac- son of the good moral�character or fitness cordance with the procedures outlined in Sec on required to engage in a licensed activity, 310.05. �- business or profession. (Code 1956, § 510.06) (b) Basis for action. Such�adverse action ay be based on one or more of the following reas ns, �c. 310.07. Termination of licenses; surety which are in addition to any other reason spe ifi- bonds;insurance contracts. cally provided by law or in these chapters: �'=''~ (a) Automatic termination, reinstatement; re- .:.::,..;.�: ''��`°'• (1) The license or permit was procured by is- S��ibility of licensee All licenses or permits which '�y-.`�..�' ";.;..=:�r` representation of material facts, by fr d, must,by the provisions of these chapters or other by deceit or by bad faith. ordinances or laws, be accompanied by the filing (2) The applicant or one acting in his be alf and maintenance of insurance policies, deposits, made oral or written misstatements or is- guarantees,bonds or certifications shall automati- representations of material facts in or ac- cally terminate on cancellation or withdrawal of companying the application. said policies, deposits, bonds or certifications.No licensee may continue to operate or perform the (3) The license was issued in violation of ny licensed activity after such termination. The li- of the provisions of the Saint Paul Zo ng tensee is liable and responsible for the filing and Code. maintenance of such policies, deposits,guarantees, , (4) The license or permit was issued in �i la- bonds or certifications as are required in these tion of law, without authority, or und a chapters, and shall not be entitled to assert the material mistake of fact. acts or omissions of agents, brokers, zmployees, attorneys or any other persons as a defense or (5) The licensee or applicant has failed to c m- justif`ication for failure to comply with such filing ply with any condition set forth in th li- and maintenance requirements. In the event the cense, or set forth in the resolution gr nt- licensee reinstates and files such policies, depos- ing or renewing the license. its,bonds or cert�cations within thirty(30)days, (6) The licensee or applicant has violated ny " • of the provisions of these chapters, o of any statute, ordinance or regulation ea- sonably related to the licensed activity,re- gardless of whether criminal charges h ve .=:a�. or have not been brought in connec on '�" " therewith. .r``"'�� Supp.No.4 , 32.1 ' ,.f;' . -�•'" LI ENSES $310.09 ::.;;:. �:- the license is automatically reinstated on the s me (d) Expiration date to be concurrent with term � terms and conditions, and for the same perio as of license or permit The expiration date of all originally issued. After thirty (30) days, the ap- such policies, bonds, guarantees or certifications plicant must reapply for a renewal of his lic se shall be concurrent with the expiration date of as though it were an original application. the license or permit. (Code 1956, § 510.07) (b) Bonds and insurance requirements: (1) Surety Companies: All surety bonds ur_- �c. 310.08. Terms of licenses;unifoim dates. ning to the City of Saint Paul shall be 't- (a) All licenses or permits shall be valid for a ten by surety companies authorized t do period of one year from the date of issuance by business in the State of Minnesota. A1 in- the inspector, except as otherwise provided herein surance policies required by these chap ers or in these chapters or in cases of revocation, shall be written by insurance compa ies suspension or termination under Section 310.06. authorized to do business in the Sta o (b) Licensees may continue to operate their busi- Minnesota. ness after the expiration date of their license; provided, that the licensee has filed with the in- (2) Approved as to Form: All bonds filed ith spector on or before the e:cpiration date the ap- the City of Saint Paul in connection 'th =__propriate license application, license fees, insur- the issuance of licenses for whatever ur- ance and bonds. The inspector shall process the pose, and all policies of insurance req re renewal application in the manner provided for to be filed with or by the City of Saint au in this Code. in connection with the issuance of lice se �c) Whenever any licensee is the holder of the -. for any purpose whatsoever, shall fir b two (2) or more licenses of the City of Saint Paul _ approved as to form by the city attorn . �,hich expire on different dates, the inspector is ' - (3) Uniform Endorsement: Each insurance pol authorized, at the request of the licensee, to de- icy required to be filed pursuant to t es termine a uniform date for the expiration of all or chapters shall contain the endorsemen se any number of such licenses,notwithstanding the forth in Chapter 7 of the Saint Paul L gis term and expiration dates of such licenses as origi- lative Code. nally issued, and notwithstanding any provision as to term of license of any ordinance of the city (4) Conditions:All bonds required by these a heretofore or hereafter enacted. The provisions ters shall be conditioned that the lice se hereof shall govern the issuance of any new li- shall observe all ordinances and la i cense to one already holding a license. relation to the licensed activity, busi ess (d) In order to conform to the foregoing provi- premises or facilities and that he shall con sions, new licenses may be issued for a term of duct all such activities or business in con less than one year, and the license fee therefor formity therewith. Such bonds shall als shall be prorated for the period of issuance. indemnify the City of Saint Paul ag ins (Code 1956, § 510.08; Ord. No. 17360, § 1, 6-5-86) all claims, judgments or suits cause by resulting from or in connection wit th 8ec. 310.09. Fees. licensed business, premises, activity, 'n (a) Application charg� facility, occurrence or otherwise lice se under these chapters. (1) Amount: In addition to the license or per- mit fees set forth in each chapter of this (c) Termination of bonds and insurance req ire Code,each applicant shall pay, at the time by city. Termination of bonds and insuranc r of filing, a two dollar fifty cent($2.50)pro- quired to be filed with the city pursuant to es cessing charge for each and every applica- chapters shall be in accordance with the re ir tion for a license or permit to be issued by ments of Chapter 8 of the Saint Paul Legisl tiv the inspector, director or council of the City r�;w :.;�; Code. of Saint Paul. �:'.�t_: • 2033 $310.09 LEGISLA NE CODE /.t'.r::;'-• .-r- (2) Refunds: Said two dollar fifty cent ($2.50) et when the license has lapsed by reason of processing charge shall not,under any cir- piration. cumstances,be refunded. ( ode 1956, § 510.09; Ord.No. 16884,2-11-82) (b) Fee schedul� The council may by ordinance c. 310.10. Refunds of fees. determine and establish one fee schedule for any or a.11 licenses and permits issued pursuant to (a) Refund where application withdrawn or de� these chapters, and a separate fee schedule for iec�seraice charge Unless otherwise specifically applications for such licenses and permits,which rovided by the particular licensing provisions may include fees to cover costs incurred by reason i volved, where an application for any license is of the late filing. Such fees, in either schedule, ��'awn or denied, the inspector shall refund shall be reasonably related to the costs of admin- t the applicant the license fee submitted less a istration incurred in connection with each such rvice charge to recover in part�he costs incurred application, license or permit. Costs of adminis- i processing the application in the amount of tration shall mean and include,but without limi- enty-five(25)percent of the annual license fee. tation by this specification, both direct and indi- �� Limitation on refuno� other cases. In all other rect costs and expenses, such as salaries, wages, benefits and all personnel costs including train- ses as provided in paragraph (c), the inspector ing, seminars and schooling, expenses of investi- ay=.refund not to exceed one hundred dollars gations and inspections, handling of inquiries and � 100.00) of fees received in connection with any requests for assistance, telephone and communi- 1 cense, permit or application therefor; provided, cations, stationery, postage, paper, reproduction, at he certify in writing that the amount of the o�ce capital equipment and all office supplies. fund represents a sum over and above the rea- _ Such fee schedules as adopted by ordinance and nable costs of administration incurred up to -- posted in the office of the inspector shall super- at time in connection with said license, permit _ sede inconsistent fee provisions in these chapters application. The director may refund not to ._ or in other ordinances or laws. ceed two hundred fifty dollars($250.00)of such es upon a like certification by the inspector. (c) Fee for one year; may be prorated Unless e council may by resolution authorize all re- otherwise spec�cally provided,the license fee stated nds upon a like certification by the inspector. is for a period of one year. Such fee may be pra (c) Bases for refunds. Refunds under paragraph rated where a license is issued for a period of less )may be made to the licensee or his estate: than a year. (1) Where the place of business of the licensee (d) Late fee Unless otherwise specifically pro- or his principal equipment is destroyed or vided by the particular licensing provisions in- so damaged by fire or any other cause that volved, an applicant for the renewal of a license the licensee ceases for the remainder of the who makes application for such renewal after the licensed period to engage in the licensed � expiration date of such license shall be charged a - activity or business; late fee for each such license.The late fee shall be �2) Where the business or licensed activity ceases • in addition to any other fee or payment required, by reason of the death or illness of the and shall be ten(10)percent of the annual license fee for such license for each thirty-day period or licensee or the sole employee or manager; , portion thereof which has elapsed after the expi- �r ration date of such license.The late fee shall not (3) Where it has become unlawful for the li- exceed fifty(50)percent of the annual license fee. censee to continue in the business or licensed If any provision of these chapters imposes more . activity other than by revocation, suspen- stringent or additional requirements for the issu- sion,denial or any criminal activity on the ance of an original license than would be the case part of the licensee. for mere renewal, those requirements must be ( ode 1956, as amended, § 510.10) . . ��:'��=��'-�� _ � • 2 34 .r-:- '`•':'�:�:. L ENSES �310.11 �;.�.w: Sec. 310.11. Transfers;general. is provided for on the part of the transferee before (a) License a priuileg� not property. All 1 ce any transfer of license is made effective by the ses or permits issued by the City of Saint au action of approving the transfer. pursuant to these chapters or other ordinan s o (fl Transfer, defnition "Transfer," as used in laws confer a privilege on the licensee to e ag these chapters, shall include a transfer from per- in the activity or occupation so licensed, a d d son to person,or from place to place,or a transfer not constitute property or property rights o cr of stock in a corporate licensee, or of shares or ate any such rights in any licensee. No su h 1 interests in a partnership or other legal entity. cense or permit may be seized, levied upo , a "�ansfer," as used in these chapters, shall not tached,executed upon,assessed or in any m ne include the instance where a license is held by an taken for the purpose af satisfaction of any deb individual or partnership and the transfer is by or obligation whatever. said individual or partnership to a corporation in (b) Licenses transferabl� conditions. All ce which the majority of the stock is held by said ses issued by the City of Saint Paul shall be an individual or by the members of said partnership. . ferable unless the specific chapter of the ai (g) Assignment and bond to accompany appli- . Paul Legislative Code pertaining to each sp cifi _ cation. In the case of a transfer from person to license shall specifically prohibit the trans r �-� person, the application for transfer shall be ac- such license. No transfer of any Class III li ens companied by a written assignment of all rights issued by the City of Saint Paul shall be eff tiv of the original licensee in and to the license and until the council of the City of Saint Pau h ghall be accompanied by a surety bond in amount approved the transfer following a public he in and in form required of an original licensee. by the council's committee designated to h 1 - :°�;�.;:.:�' cense matters and a resolution approving sai (h) Public corporations. Notwithstanding other � j transfer is passed, approved and published. ot provisions of this chapter, publicly owned corpo- the transferor and transferee shall make ap lic - rations whose stock is traded in the open market tion for transfer of a license on such forms ma may comply with the transfer requirements per- be prescribed by the division, and in accor anc taining to stock ownership and stock transfer by with Section 310.02. furnishing the inspector on request with the names (c) Transfer ta.z In all cases of transfer of and addresses of all stockholders of record upon license from a present licensee to any othe pe - each renewal of the license. � son, there shall be a ta�c on said transfer i t (i) A�davit of transferor. No license transfer amount of twenty-five (25) percent of the a nu 1 shall be effective unless the transferor submits license fee charged for said license, said tax o an�davit of such transferor,taken under oath, paid by the transferee. stating the following: (d) Transfer ta� deposit retained or retu ne (1) That in the case of Class III licenses, the Whenever an application is made for transf of transferor-�ant has posted notice to all license, the amount as set out in paragra h ( ) employees in a conspicuous place on the shall be deposited with said application. t licensed premises notifying all employees transfer of license is approved,the amount po - of the time,place and date of hearing of the ited shall be retained by the city.If the tran er transfer of the license to be held before the denied,the amount deposited shall be ret ed Saint Paul City Council; the party depositing the same,in accordanc wit (2) That said notice specified in subparagraph the requirements and conditions in Section 3 0.1 . (1)above was posted continuously for four- (e) Transfer ta.x exception. Paragraphs ( a teen(14)days; (d)shall not apply in any case when,by the r (3) That transferor has paid all wages due and ,�... of these chapters, payment of the full ann al 1 - owing the persons employed by the trans- �'��'Y' censee fee or a rorated earl annual licen e f feror or that an agreement has been reached r�,��-:�'.�:' P y y ;.: ::f ,��. Supp.No.4 2035 . . � - _ l� J, g 310.11 LEGISLAT ODE � • �r��`',`.��..' �: - between transferor and all employees as to ( ode 1956, § 510.11;Ord.No. 16822,9-3-81;Ord. the payment of wages due and owing; . 17551, § 3,4-19-88) � (4) That transferor has made payment to all employess in lieu of vacation time eazned c. 310.12. Inspection of premises. by said employees or in lieu thereof an �e premises, facilities, place, device or any- agreement has been reached between trans- t ing named in any license issued pursuant to feror and all employees as to payment in y provision of the Saint Paul Legislative Code lieu of vacation time eamed; o other law shall at all times while open to the (5) That transferor has satisfactorily and com- p blic or while being used or occupied for any • pletely complied with his contractual obli- p ose be open also to inspection and examina- gations pertaining to employer contributions ti n by any police, fire, or health officer or any to employee benefit programs which include, b ' ding inspector of the city,as well as the inspector. but are not limited to, pension programs, ( ode 1956, § 510.12) hospital,medical and life insurance programs, profit-sharing programs and holiday pay c. 310.13. Renewal. benefits. � Every license renewal under these chapters may (j) Deceased Iicensee Notwithstanding any other b denied for any licensee who is delinquent in provision of these chapters, in any case where a a y payment or contribution to a health and wel- liquor license is held by a person not incorporated f e trust or pension trust, or similar program, and where the license would, by reason of the e ablished for the benefit of his employees. death of said licensee, lapse to the city in the ( de 1956, § 510.13) absence of this paragraph, the authorized repre- sentative of the estate of the deceased licensee. c. 310.14. Savings clause. �t"='�=+ � may consent to and seek to transfer said license a) If any provision in�these chapters is held to the surviving spouse of the licensee.The trans- u constitutional or invalid by a court of compe- fer shall be subject to all applicable requirements te t jurisdiction,the invalidity shall extend only of these chapters and existing law. to the provision involved and the remainder of (k) No approval under certain conditions. The se chapters shall remain in force and effect to council shall not approve any transfer where ei- b construed as a whole. ther party has not complied with the terms of any � �e repeal of any ordinance by ichis ordi- contract or agreement regarding employee bene- n nce (which enacts the Uniform License Ordi- fit or fringe benefit programs; including, but not n nce) shall not a.ffect or impair any act done, limited to, pension, hospitalization, medical and a y rights vested or accrued,or any suit,proceed- life insurance, profit-sharing or holiday pay pro- in or prosecution had or commenced in any mat- grams; provided, that any person or organization te ,prior to the date this ordinance became effec- objecting to a transfer because of failure to pay ti e.Every such act done or right vested or accrued employee benefit or fringe benefit programs shall S 1 remain in full force and effect to all intents file a written notice of objection with the license a d purposes as if the repealed ordinances had inspector seven (?) days prior to the scheduled �selves remained in force and effect. Every public hearing on the transfer, and said notice s h suit, proceeding or prosecution may be con- shall contain a complete itemization of the objec- ti ued after repeal as though the repealed ordi- tor's claim. n ces were fully in effect. A suit, proceeding or (1) Transfer of more than one license if one is pr secution which is based upon an act done, a Class III. If an application is made�to transfer ri ht vested or accrued, or a violation committed more than one license at the same time, the in- p or to repeal of the repealed ordinances, �but spector may, if one of the licenses is a Class III w ich is commenced or instituted subsequent�to `.>;:::_ license,handle all said licenses as Class III licenses. re eal of the repealed ordinances,shall be brought `.;:Y,_'.::: .�:.;�,. Supp.No.4 . ' 20 6 CENSES 3 310.15 ��'�"�" . c�.•:�: pursuant to and under the provisions of su r pealed ordinances as though they continued b in full force and effect. � (Code 1956, § 510.14) ' Sec. 310.15. Penalty. . Any person who violates any provision of hes chapters, or other ordinances or laws relati g licensing, or who aids, advises, hires, couns ls •�;= � ,�� ,.��,.:�,�., �Y.;��:':�,, t�'`yf�..:..� \•.e�:I'i"�Y . �"�''` Supp.No.4 2036.1 . .. �� _ ..:'.r:�:�' ENSES §318.01 '-�':=:�:� =r:; conspires with or otherwise procures anoth r t Sec. 316.02. Fee. violate any provision of these chapters or he ordinances or laws relating to licensing is ilt The fee required is forty-five dollazs($45.00). of a misdemeanor and may be sentenced i ac (Code 1956, § 384.02) cordance with Section 1.05 of the Saint Paul e islative Code. The term "person," in additi n t Chapter 317.Amusement Rides the definition in Section 310.01, shall for the p pose of this section include the individual art �c. 317.01. License required. ners or members of any paztnership or co or tion,and as to corporations,the o�cers,age o No person shall engage in the business of pro- members thereof,who shall be responsible fo th viding amusement rides,for charge,to the public violation. in Saint Paul without a license. (Code 1956, § 510.15) (Code 1956, § 411.01) Sec. 310.16. License fees,annual increa s. Sec. 317.02..Fee. Effective on January 1 of each calendar e The fee required is one hundred dollars($100.00) all license fees, except building trades bus es -_ for each location at which such person will oper- license fees and fees for building trades ce if ate and maintain the business of providing such cates of competency, shall increase by the pe rides. . centage increase in the budget for the divisi n o (Code 1956, § 411.02) license and permit administration of the de ment of finance and management services. io �aP{�r 318.Mechanical Amusement Devices to November 1 of each year, the director f f :.__� �''' nance and management services shall file �t �c. 318.01. License required;definitions. .t::y.. the city clerk a notice of the percentage incr as if any,in license fees. No person shall own and allow to be operated (Ord.No. 16885,2-11-82; Ord.No. 17059, 10-2 -8 for business purposes any coin-operated mechani- Ord.No. 17303, § 4, 10-29-85) cal amusement device without a license. A coin- operated mechanical amusement device is hereby Chapters 311-314. R.eserved defined as any machine which,upon the insertion of a coin, token or slug, operates or may be oper- SUBTITLE B. CLASS I LICENSES ated by the public for use as a game, entertain- ment or amusement, which amusement device contains no automatic payoff device for the re- Chapter 315.R.eserved* t�of money, coins, checks,tokens or merchan- dise, or which provides no such pay-off by any Chapter 316.Animal Foods other means or manner.The term"coin-operated Manufacturing and Distributing mechanical amusement device" shall include so- called pinball machines; music machines; coin- Sec. 316.01. License required. operated television units;motion picture machines; � amusement rides, excepting those provided for No person shall engage in the business o th �der Chapter 317,pertaining to amusement rides manufacture or distribution of animal foo i of the type used at carnivals; table shuffleboard Saint Paul without a license. games or similar games of amusement for which (Code 1956, § 384.01) a fee is charged to players for the playing thereof; and all other machines which,by the insertion of ' •Editor's note—The licenses under this chapter, d rive a coin or token, operate for the entertainment or _:.. from 4§ 345.01-345.03 of the city's 1956 Code,were r esi - ��ment of the player,except weighing machines• ;"�`i.�;';':" nated as Class III licenses by Ord.No.17207,adopted J n.3 , �'-}:,'•;'>'-:.� 1985,and recodified as Ch.423. (Code 1956, §§ 412.01,412.02) �`: 2037 ,WMITE - CITY CLERK � PINK- - F�NANCE ' ''� ' �O COUIICII . � (/�'�y" OLUERY,�MwVORTMENT GITY OF IN� PAUL File NO. '` • ///�, ' Citg Att�ylPBT3 � • i'��/ . Or � �nce Ordinance N 0. ' ��-� � T . ... � � r t: :' . . � - � � • . �' .. : . . Presented By � • � • � � ' �� Referred To � . ' ` � �'�.` Committee: Date � � � Out of Committee By Date Ar_ ordir.ance o .end sectim.z 31�.�f� � o� the Saint Pa 1 egislative C�de by '` addin� clarifyi m an�;ua�e cencernin; the i��osi�io:� � onciitior,s. _ '• - . . ? .. ..� Tf+�. CO�J`3C?I� �i�' .'I'H� CI'I'Y OF� S�l I�iT �'AUZ �OE� C�RD�SIi�: _.�;•': y; ..`; ,� , C;.G .,•..„� �ac ioa 1 . . .�- . . � � Section 310.Oa of tnz Sa' t Paul Le,isiative Co�e i3 Izer�bp az:ended b�� addin� t'::e follawi o .ew subsecticn (c) : _ '�(c) T.�i��*�. a reasona le �asis is z"ou�d to i��ose reasonab?4 c d t�cns and/or r�stTictians u�o:: a licen3e ZJJLZ d r ;ael� �rider t�:ese ci?�n�ers, 3Fs�� on� o m �e sucli reason�ble carctitions and/v� r st ictions ;:a� be i�osed �*�or_ such license � he rur�osz of �ro�zoti�ig ?ub?ic healt;, sa�e nd �a�lrare, of a�vaac�n� tn� �uuli p ace and the �li.zzir.ation of co�diti�s or ac 'o s wh.3.cn constitvte a ��.�iszzce or � detri r. to t�e peac��:I � en3o�.ent af urban I'f , or �ron�ting security and safetp ir_ r.ear�u n i�i��orhaods. �LC:�� Y��sorca�le con3iti d/or r�strictio*�.s s.a� �a.clude or �er� to, but are not li�ited to . COUNCIL MEMBERS � Requested by Department of: yeas Nays Dimond �.ong In Favor Goswitz Rettman B Scheibel Against Y Sonnen Wilson Form Approved by City Attorney Adopted by Council: Date Certified Passed by Council Secretary By By Approved by Mayor: Date Approved by Mayor for Submission to Council By BY _ : � ". � . - . . .� � � . _ . . ��. -,r�-�� .�. . . .. . . _2_ : . � (1) a limitatio n the hours of operation � of the licensed b siness or establishmerit, . � or on particula ypes of activities� con- ducted in or on s id business or establish- ment; � .. . . . . .. . (2) a limitatio r restriction as to the location within t e 'licensed business or establishment w o e �particular type of . activities may e conducted; . � (3) a limitatio s to the �means of . . ingress or egre s from the �1'icensed -�-� -� � - '�" - --.�- establishment o ts parking� lot .or � � � - � � immediately adj c nt area; � � � � (4) a requireme t to provide �off-street � parking in exce s of other requirements . . . of la�a; � (5) a limitatio n the �manner and means of advertising h �operation or merchan- . dise of the lic n ed establishmeiit; � (6) any other r a onable �condition or restriction. lim t ng the �operatiori of � - - � -----�� --=the liceiised bu i ess or establish�nerit � � �" � �� to �insure �that h �said business or � � � � �. � �� establ-ishmertt- 1 �harmonize �with �the � ' � --� � - �- -� �----� -�---- �--=character of th rea. in which �it is � , . . _:__ ��. . located., �or to r vent�,the;�development � � - � -� - � ---� �-- - - -- �- --or- continuation o � a iiui�ance. . . The inspector may .im o e �such �conditions on Class I � . licenses with the co s nt of the licenseholder, or � may. recommend the im o ition of such �conditions as � an adverse action ag i st �the 'licerise 'or licenses ; . the 'director �has the s me power with respect to � � �Class II licenses .� council may impose such � . . . - �� - - �conditions on Class I licenses with the consent . of the licenseholder, r upon any class of license � as an adverse action a ainst the license or licenses � � �., ,//.� CAN�qti'�oe�a RTMENT GITY OF A NT _PALTL Council '�r ��r� • ��ue «�MAYOR File 1`��. �� n ce Ordinance N�. _,�7�� , _ . ,�-� .�� f- "�� :: t_�...��. f: .-:� .:��;.�: Presented By .._.•. :�...t ; � . Referred To Committee: Date Out of Committee By Date -3- iollcJCCrir_g notice an � aring as �aay be rea,uirQd. Suc.z co::ditions nay e i..�~posed on � license or 3.icer.ses Lpon is�uance, reae: al or transfer t?�ereof, or uncm and as }�art of an�� d�r rse actio� against a Iicense � er licenses , :.nclud zg sus�ensio�.. S � ction 2 �teith�r t�is or�inance n r np esi.st�..*�g os iuttire ar3in�nce ador�ted bv the Cit� of Saint a to re.�u3.�te and�or license sn•,� occupations , busir_$sses or ac i 'ti es shz�1 be construpd to li�i.t or 3'F..'3tr�Ct itg innererLt �oli e oc��r to regulate and Iice*_ise, �or to I�rn3.t or =estrict anv po�e �fe:.-red on it by the �Jnit�� S��t�s or .��nnesota� Can3titutio:is or s tutes (or ze�uZatians pro��s?3ats�d tn.ere�:cier) to so re�ulate an / 1;�°��- S ctioz 3 'I'his ord�nanc� shall ta'_{ ffec� �r_d be in force thir�� (30) �?ays .°�'ollczw{r.Q its k�ass � , a�vrora3 a.�d �•ablication. . ; COUNCIL MEMBERS Requested by Department of: ycas Nays ..` Dimond ; Lo�g In Favor Goswiiz Rettman BY Scheibel A gai[1 S t . Sonnen ��lson �U� ? � �9�8 Form Approved by City Attorney Adopted by Council: Date Certified Passed by Council Secretary By : . : 8 �t,:t.,„ ,�:'� } .� .. i,:.. � y �. .:�..._..' • .....,',1•.� 1!'�; l,1 'a+a�,: •.Jr ��•a• :,i Approved by Mayor for Submission to Council Approved by Mayor: Date By By . a � 22 0 . Larpenteur Ave. 55109 I.d.R213934 `•!� CK Z Hi lc est Country Club; Inc: � . � Priv.Club 13278 6-30-85 Rest. 13278 6-30-85 . E �-•;,> Priv Fuel Pmp 13278 6-30-85 � � . �' f .:- �;: Enterainment 13278 6-30-85 � _ - :-- . } Swim Pool 13278 6-30-85 FRONT OF CARD Hil cr st Country Club Private Club 18648 7-1-86 Restaurant 18648 7-1-86 Priv Fuel P 18648 7-1-86 Entertainment 18648 7-1-86 Swim Poo1�G�.�tDi� 18649 6-30-86 Hil cr st Country Club Swim Pool-Outdr 18649 6-30-87 : - 20 E Larpenteur Av-55109 ID#8213934 ., . Hil cr st Coutnry Club Priv Club 18648 7-1-87 Restaurant 18648 7-}-g7 � Priv Fuel Pmp 18648 7-1-87 � Entertainment 18648 7-1-87 FRONT OF CARD H'11 est Country Club Inc e,�,,��b,� Swim Pool-Outdr_ � 18649 6-30-88 �- •_- Hil cr st Country Club �"� �"`•'��`o Entertairnnent-�'n�� 3 18648 7-1-88 Priv Fuel Rurrp 18648 7-1-88 Restaurant (D) 18648 7-1-88 Private Club 18648 7-1-88 St. P 1 Area Board of Realtors Gambling permit - Raffle 49395 7/25/88 ' DUPLICATE 220 E arpenteur Ave 55109 ID#8213934 Hill re t Country Club Priv Club 18648 07-01-89 Restaurant D 18648 07-01-89 - - Priv Fuel Ptunp 18648 07-01-89 FRONT OF CAFtD Entertai�nent (3) 18648 07-01-89 10/20/88 I certify that this is a true a e act copy of the records of the License � Permit Division of the Ci y of St. Paul for Hillcrest Country Club, Inc, dba Hi rest Co try Club at 2200 E. Larpenteur Ave. 1 %�� e ' en : Permit � i nse Clerk II ,^nn^n�Nw , �"y'''`�� f,HRISTINE A ROZEK ��NOTARY PlJ�Li(,—MlPJNESOTp RAM3EY�OUNTY MY�miss�on Expires Aug. 15,1994 . � 1 _ �1 ��r _ ,. ��r,� �x. � �'9 �y. . 9 � � ��""_:""°�� CITY OF SAINT PAUL :?'c� o�pL _. >:4�` 7'I•..' >o t:. OFFICE OF 7HE CITY ATTORNEY , �� ; � .::r �""i�!�1"� . EDWARD P. STARR. CITY ATTURNEI' . �:,,; �... 64:Cit� H,ill. Saint Paul. hlinn�•tiot.i i�lll? ��t�„ . � G12-x�tl-�121 <;f.ORG[ LATIM[R MAYOR September 13 , 1988 Hillcrest Country Club, Inc . NOTICE OF HEARING Bernice Simons, Gen. Mgr. 2200 Larpenteur Ave. East Saint Paul, Mn. 55109 RE: Hillcrest Country Club, 22 P! arpenteur Ave. East Dear Ms. Simons: This is to notify you that a h a ing � will be held concerning all the licenses held at the prem s stated above at the following tim e, date and place: Date: October 20, 19 8 Time: 9:�P1 a.m. Place: Room 1504A City Hall A ne 25 West 4th St eet St. Paul, M . 551fd2 The judge will be an Administ at've Law Judge from the State of Minnesota Office of Administra iv Hearings: � Name: Howard L K ibel Office o A ministrative Hearings Fifth F1 or Flour Exchange Building , 310 Four h venue South Minneapo is Mn. 55415 Telephone: 341=7608 The Council of the City of a nt Paul has the authority to provide for hearings concer in licensed premises, and for adverse action against suc icenses , under Chapter 3101 , including sections 31Pl. PJS n 310. ��6 , of the Saint Paul Legislative Code. In the cas f licenses for intoxicating and non=intoxicating liquor , auth r ty is also conveyed by section � 340A.415 of the Minnesota Sta ut s. Adverse action may include revocation, suspension, fines nd other penalties or conditions. Evidence will be presented to he judge which may lead to advezse � action against all the license y u hold at the above premises as follows : ^ � " F-1 � �-� , On July 5, 1988 , a bart nder in the bar at the Hillcrest Country Club sold 2 a s of Stroh' s Light beer at approxim ately 8: 3P1 p.m. S ' nce the Hillcrest Country Club has no onLsale intoxicat ng and no on-sale nonintoxicating liquor licenses, such s le were in violation of law and ordinance (Sections 4P19 gl and 414J.01 of the Saint Paul Legislative Code) , and f r ish a basis for adverse action against all licenses hel b said Club pursuant to Section 310.66 (6) of said Code. e also Minn. Stat. Sec. 340A.7412. You have the right to be repr s nted by an attorney before and during the hearing if you o choose , or you can represent yourself. You may also have erson of your choice represent you, to the extent not prohi it d as unauthorized practice of law. The hearing will be conducted n ccordance with the requirements of sections 14.57 to 14.62 of h Minnesota Statutes, and such parts of the procedures under s ction 31f�.�15 of the Saint Paul Legislative Code as may be app i able. At hearing , the Administrativ aw Judge will have all parties identify themselves for the r o d. Then the City wi�-1 present its witnesses and evidence, ea h f whom the licensee or attorney may cross-examine. The licen e may then offer in rebuttal any witnesses or evidence it may i h to present, each of whom the City attorney may cross=exami e. The Administrative Law Judge may in addition hear relevant a d material testimony from persons not presented as witnesses who a e a substantial interest in the outcome of the proceeding; for e ampl,e, the owners or occupants of property located in close p o imity to the licensed premises may have substantial interest i the outcom e of the proceeding. Concluding arguments may be m e by the parties. Following the hearing, the Judge will prepar indings of Fact, Conclusions of Law, and a specific recommenda io for action to be taken. You should brinq to the hea in all documents , records and witnesses you will or may e d to support your position. Subpoenas may be available to om el the attendance of witnesses or the production of documen s in conformity with Minnesota Rules, part 140PJ.70010. . . � � ` --� „ , , „ ' ':j �.,.:. � , . If you think that this matter a be resolved or settled without a formal hearing, please cont c or have your attorney contact the undersigned. If a stipulat' o or agreem ent can be reached as to the facts , that stipula i n will be presented to the Administrative Law Judge fo ' ncorporation into his or her recommendation for Council act on If you fail to appear at the he r ng, the allegations against you which have been stated earlie n this notice may be taken as true and your ability to challe g them forfeited. If non-public data is received into evidenc t the hearing, it may become public unless objection is ade and relief requested under Minnesota Statutes, section 14. 0 subdivision 2. Very truly yours, PHILIP B. BYRNE Assistant City Attorney (612) 298=5121 Attny. Reg. No. 13961 cc: Joseph F. Carchedi License Inspector Lt. Donald Winger " Vice Unit Albert B. Olson City Clerk Paige Purcell • Office of Administrative He rings Lonny D. Thomas, Esq. Attorney for the License - ...... . . . .. . . ...:...:. .. . `,� . . . ., ...� , • � .. . . . . - � . � . 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R . - �-�C� .•u" �9 ` `1L�/ .�� - STATE O I N N ESOTA OFFICE OF ADMI IS RATIVE HEARINGS FIFTH FLOOH,FL UR CHANGE BUILDING 310 FOUR A NUE SOUTH MINNEAPOLI ,MI NESOTA 55415 (6 )34 -7600 -- Septemb r , 1988 Lonny D. Thomas Attorney at Law c/o Hillcrest Country Club, Inc. Bernice Simons, Gen. Mqr. 2200 Larpenteur Avenue East St. Paul, l�i 55109 Philip B. Byrne Assistant Ramsey County Attorney 647 City Hall St. Paul, 1�T 55102 Re: Hillcrest Country Club, Inc. Lic se ; OAFi Docket No. 5-2101-2750-6. Dear Counsel: As you know, I've been assigned ar this appeal on October 20, 1988, if it has not been settled by then. I' sure we all aqree that it is much better for people to settle their di pu es to their mutual dissatisfaction, perhaps through some kind of comprom se, than to have a (perhaps also mutually unsatisfactory) decision recommended by an Administrative Law Judge, subject to final decision by _the City Counci , ubject to review by the Court of Appeals, subject to review by the St te Supreme Court. I'm sure you both understand the potential delay, appe 1 osts and further poteatial dissatisfaction involved. I urge you to get in touch with ac other as soon as possible to esplore settlement options, or at least to n rr a the fact issues by identifyinq where your witnesses have an honest disagr em nt as to the facts, stipulatinq to the rest. If either of you feels that a pr he ring conference call (Minn. Rule 1400.6500) would assist in that proc ss I will order and arrange one. AN EQUAL OP O UNITY EMPLOYER � , � Mr. Thomas and Mr. Byrne September 20, 1988 Paqe 2 There is also a rule permitting a f 1 •settlement conference" (Minn. Rule 1400.6550) which could also be co u ed by phone at either party's request. That would allow you to expl re 11 of the factual and legal issues with another Administrative Law Judge ho ould try to help you resolve or simplify the dispute. At least s/he c ul enter an order narrowing the issues which would be binding on me if you co ld 't reach an agreement and we had to go to hearing. Except for such an ord r, I could not otherwise comnunicate in any way with the other Administrative aw Judge about the facts or issues involved. There is also a similar new "alter at ve dispute resolution' process. which I recommend and have used succes fu ly in the past in licensing cases, called "mediation" (Minn. Rule 1400.59 0) It is completely voluntary with both of your clients. Either could si pl withdraw at any time. The mediator would have no authority to make decisi ns or impose a settlement. I (or someone else appointed by the Chief Ad in strative Law Judge) would be the mediator who would attempt to help you �o ntly resolve the dispute, passibly also by phone. If the mediator fails, th case would still be fully heard on the merits. without any prejudice, by n her uninvolved Administrative Law Judge. Please do place a call to one-ano he as soon as you receive this letter to discuss informal simplification or se tlement and/or the formal less adversarial options outlined above. Enclosed are some materials on al er ative dispute resolution regularly distributed by this Office. S nc rely, . ou�,aic� /tw.�-�t.� H A D L. KAIBEL, JR. A mi istrative Law Judge 1 hone: 612/341-7608 HLK vh Enclo ures ��° �'-�'�� • ��.. � ,�Q�L6 DV NO 4 �'•�� `W ( `��f��k��. RECEIVED ST T O F M I N N ESOTA �B 2,� 1989 OFFICE F DMINISTRATIVE HEARINGS ClTY CL�R4� FIFTH LO , FLOUR EXCHANGE BUILDING 310 OURTH AVENUE SOUTH �f� M NNE POLIS,MINNESOTA 55415 (612)341-7600 F br ary 24, 1989 St. Paul City Council Attention: Albert B. Olson City Clerk 386 City Hall St. Paul, Minnesota 55102 Re: In the Matter of Hillcrest Co nt y Club Licenses to do Business in the City of St. Paul; OAH Docket o. 5-2101-2750-6. Dear Mr. Olson: � Enclosed are duplicate tapes f he hearing in the above-referenced matter. As you know, Phil Byrne as requested that we provide the City with tapes of all licensing hearings. Th official record was returned to you on February 17, 1989. Sincerely, � r,._ I ��%C'c��)�� C.�2�%� SANDRA A. HAVEN Office Services Supervisor Telephone: 612/341-7642 sh Enc. - Tapes (2) AN EQUAL O PO TUNITY EMPLOYER