89-643 WHITE - C�TV CLERK COI1RC11
PINK - FINANCE GITY OF AINT PALTL
CANARV - DEPARTMENT ����
BLUE - MAVOR File �0. /
City Attny/PBB
. Counci esolution ����
�
Presented By
Referred To Committee: Date
Out of Committee By Date
RESOLVED, that upon aff r nce by the Minnesota Court of
Appeals of the action taken y he Council on August 25 , 1988,
in C.F. No . 88-1438, the six d suspension therein imposed
on the Grand Central , 788 Gr n Avenue, shall commence on the
second Sunday following publ c ion of this Resolution.
(Gagliardi v. City of Saint a , et al . , Court File No . CO-
88-1862, Mn. Court of Appeal , arch 28 , 1989) .
COUNCIL MEMBERS Requested by Department of:
Yeas Nays �
Dimond
Long [n Favo
cosw;t�� �
Rettman
Scheibel A gai n s t BY
Sonnen
Wilson
APR 1 1 Form Appr ved by City Attorney
Adopted by Council: Date _ �/3//�
Certified Pas C n il S ar BY
By, 1i. .
Approved by Mavor. D e
APR l �, , Approved by Mayor for Submission to Council
B �� ♦ � c��,.� gy
Y
PU�IlSI�ED APR 2 2 1989
STATE OF M I N N ESOTA ❑ Supreme Court � ,
� Court Of Appeals
TRANSCRIPT OF
JUDGMENT
I do hereby certify that the foregoing is a full and true copy of the Entry of Judgment in the cause
therein entit/ed, as appears from the original record in my office; that 1 have carefully compared the
within copy with said origina/ and that the same is a correct transcript therefrom.
Witness my signature at the State Capitol,
in the City of St. Paul J���- $�1
Dated
ey:
Assi ni Clerk
L
" �`�F/
�►',qy1 �Fo
This o inion w' 1 be un ublished and �'/Ty ��98�
m� not be cite xcept as provided by C� �
Minn. Stat. § 4 0 . 08 subd. 3 1988 . ��`ii
STATE 0 MINNESOTA
IN COU T OF APPEALS
C -8 -1862
St . Paul City Council Norton, Judge
Anthony F. Gagliardi, Howard I . Bass
Thomson & Ellis, Ltd.
Relator, 345 St. Peter Street, #300
St. Paul, MN 55102
vs .
City of St. Paul, et al . , Edward P. Starr
City Attorney
Respondents . Philip B. Byrne
Assistant City Attorney
647 City Hall
St . Paul, MN 55102
Filed March 28, 1989
Office of Appellate Courts
Heard, considered and d c ' ded by Short, Presiding Judge,
Nierengarten, Judge, and Nort n, Judge.
U N P U B L I S H D O P I N I 0 N
NORTON, Judge
FA TS
Relator Gagliardi is a p in ipal shareholder and officer of
GMH, Inc . , doing business as Gr nd Central . Grand Central is a
bar and restaurant, licensed b St . Paul to sell intoxicating
1 ic�uors .
In February 1987 , Gaglia d' observed a blackjack table in
operation at a Minneapolis ba . Gagliardi was told that the bar
, made no money from the ta 1 , but seemed to attract more
customers because of it . pproximately three months later,
Gagliardi arranged for n independent operator to run a
blackjack table at the ra d Central . Gagliardi did not
investigate the possible il eg lity of the blackjack operation.
A blackjack table was ns alled in open sight at the Grand
Central in June 1987 . Rul s of play were posted at the table.
A patron wishing to play bl c jack first purchased chips for the
posted cost . Players who a cumulated 100 chips were able to
redeem them for a drink. oever won the highest number of
chips by the end of the e en' ng was declared the winner. The
winner could redeem chils ( if over 200 ) for a bottle of
champagne and was eligibl or a drawing at some future but
undetermined date for a tr'p o Las Vegas . The drawing for the
trip was never held. I
During June, July and u st of 1987 , the vice unit of the
St . Paul Police Department co ducted an undercover investigation
of alleged gambling activit t the Grand Central . On August 5,
1987 , officers confiscated t e table and equipment . Gagliardi
was charged with permitt ' n unlawful gambling on licensed
premises .
An Administrative Law 'Ju ge (ALJ) determined, following a
hearing, that Gagliardi e ga ed in gambling activities at the
Grand Central in violatio o Minn. Stat . � 340A. 410 , subd. 5
( 1986 ) , and the St . Paul e islative Code § 409 . 08 ( 6 ) ( 1987 ) .
At a subsequent public a ing, the St . Paul City Council
adopted the findings of th A J and voted to suspend Gagliardi 's
licenses for six consecutiv ays .
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D E C I S I 0 N
Municipal authorities hlve broad discretion to determine the
issuance , regulation and evocation of liquor licenses .
H anson v. Cit of St. Paul, 29 N.W. 2d 324, 326 (Minn. 1983) .
Rdministrative d cisions will be upheld
unless the agenc ' s decision is ( a) " [ i]n
violation of con t tutional provisions , "
(b) " [ i]n excess f he statutory authority
or jurisdiction o t e agency, " (c ) " [m]ade
upon unlawful proc d re, " (d) " [a] ffected by
other error of la , (e) " [u]nsupported by
substantial evide ce in view of the entire
record as submitte , ' or ( f) " [a]rbitrary or
capricious . " Minn. S at. � 14 . 69 ( 1984 ) .
Hiawatha Aviation of Roches e Inc . v. Minnesota Department of
Health, 375 N.W. 2d 496 , 50 Minn. Ct . App. 1985 ) , aff 'd, 389
N.W. 2d 507 (Minn. 1986 ) . n gency's action will be upheld if
the record, in its entir ty, contains substantial evidence
supporting the action. Ur an Council on Mobilit v. Minnesota
De artment of Natural Res ur es , 289 N.W. 2d 729 , 733 (Minn.
1980) .
The St . Paul City Counc ' 1 adopted the ALJ's conclusion that
Gagliardi engaged in gambli g ctivity in violation of state and
I
local law. We agree. Both M nn. Stat. � 340A.410, subd. 5 and
St . Paul Legislative o e � 409 . 08 ( 6 ) provide that
establishments licensed t s 11 alcoholic beverages may not
permit� gambling on license remises . The Minnesota Supreme
Court has defined gamblin s "a risking of money or other
property between two or mo ersons on a contest of chance of
any kind, where one must b the loser and the other the
- 3 -
gainer. " Cit of St. Paul v Stovall, 225 Minn. 309, 314, 30
N.W. 2d 638 , 642 ( 1948 ) (qu t ng State v. Shaw, 39 Minn. 153,
156 , 39 N.W. 305, 307 ( 1888 ) ) .
Minn. Stat . � 609 . 75, su d 2 ( 1986 ) defines a "bet" as :
a bargain whereby h parties mutually agree
to a gain or los y one to the other of
specified money, r erty or other benefit
dependent upon cha c although the chance is
accompanied by some' e ement of skill .
Prizes offered to contesta t in bona fide contests of skill,
speed, strength, or endu a ce are not bets . Minn . Stat .
� 609 . 75, subd. 3( 3) ( 1986 ) .
We are unconvinced b agliardi ' s contention that the
blackjack operation at the r d Central was a contest of skill .
Blackjack is at least part ' a ly dependent upon chance. Here,
patrons could win drinks orlp rticipate in the Las Vegas drawing
depending on the vagaries of the game . Those patrons who
accumulated sufficient chip ined a free drink. The blackjack
operator' s costs varied ac or ing to the number of patrons who
accumulated free drinks . W c nnot say that the ALJ and the city
council erred in determini g that the Grand Central operation
constituted unlawful gamblinl .
Gagliardi also argues hat the city council erred in
departing from the penalty m trix provisions contained in St.
Paul Legislative Code � 409 . 6 (Supp. 1988) .
Section 409 . 26 became e fe tive on June 7 , 1988 , pursuant to
its provision for an eff t ve date 30 days after passage,
approval and publication. S . Paul city ordinances apply the
4 -
,
same rules of constructi n as state statutes . St . Paul
Legislative Code � 2 . 15 ( 1 8 ) . Under state statute, no law
shall be construed to b etroactive unless clearly and
manifestly so intended by t e egislature. Minn. Stat. � 645 . 21
( 1988 ) . There is no evid c that the St. Paul City Council
intended section 409 . 26 to b a plied retroactively.
Although the city counci nd the ALJ referred to the penalty
matrix, it appears from th r cord that the penalty matrix was
understood to be a guide to f ture city action. The procedures
established in section 40 . 2 were not binding on the city '
council in this matter.
Appellant contends th t the city council ' s decision to
suspend his licenses for ix days was not supported by
substantial evidence, was a bi rary and capricious, and was made
on unlawful procedure. We d' s gree. The city council action was '
I
supported by the extensive f ndings of the ALJ. The council ;
actively debated the prop �r penalty and expressed legitimate
reasons for its decision to i pose a six day suspension. There
is no evidence that the c ty council action was arbitrary or
capricious . The council o lied with proper procedures for
license suspension. See S . Paul Legislative Code §S 310 . 05,
310 . 06 b( 6 ) ( 1987 ) .
We conclude that the S . Paul City Council did not err in '
suspending Gagliardi 's licen es for six days .
�
Affirmed.
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