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88-1426 WMITE - C�TV CLERK CO�lIIC1I PINK - FINANCE G I TY OF SA I NT PAU L p�r/'�� CANARV - DEPARTMENT BLUE - MAVOR File NO• � Cou 'l Resolution � � � q ; Presented By � Referre o Committee: Date Out of Committee By Date RESOLVED, that the On Sale Intoxicating Liquor, Sunday On Sale, Restaurant licenses (as well as the Entertainment license to the extent it is applicable or effective in the premises licensed for sale of intoxicating liquor) , held by MFL, Inc. and Clayton Club, Inc. d/b/a the Belmont Club, for the premises at 615 University Avenue in Saint Paul are hereby revoked, said revocation to be effective at 12:01 A.M. on the day following publication of this Resolution. This Resolution and the action taken herein is based on the entire record of the proceedings herein, including the pro- ceedings before the Administrative Law Judge on May 24 and 25 , 1988 , the transcript of such proceedings, the documents and exhibits introduced therein, the arguments of counsel for the parties on August 11 , 1988 , and their written exceptions and arguments , and upon the deliberations and findings of the Council in open session. In arriving at its decision, the Council adopted in whole or in part the findings of fact of the Administrative Law Judge, together with amendments thereto, as well as certain conclusions , all of which are attached hereto as Council Findings and Conclusions. Other findings or conclusions of the Administra- tive Law Judge are not adopted. FURTHER RESOLVED, that a copy of this Resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and to counsel for the licenseholder, pursuant to Minnesota Statutes 1976 , Section 14.62, Subd. l . COUNCIL MEMBERS Requested by Dep�rtment of: Yeas Nays Dimond �� In Favor Goswitz Rettman Scheibel A gai n s t BY Sonnea.---�+ Wilson Adopted by Council: Date / SEP �6 �8 Form Approved by City Attorney Certified Y s Counc.il tar By �'!'�'Q- 0�• ��V� ��c_ �J/�8 �8$ T BS' � t�pproved b tifavor at� EP — f � Approved by Mayor for Submission to Council By By PUei.lSlt� S E P 17 1968 �;' �' �° �`�� G COCHRANE & BRESNAHAN, P.A. ATTORNEYS AT LAW 24 EAST 4th STREET SAINT PAUL, MINNESOTA 55101-1099 JOHN A. COCHRANE JAMES R. BRESNAHAN TELEPHONE STEWART G LOPER 612/298-1950 MARY F.SEYMOUR CABLE ADDRESS:COBRA FONALD D.ALLEY' BRIAN N.TODER" 'Also admrtted in Texas December 9� �988 "A/so admitted in Colorado Office of the City Clerk Room 386, City Hall 15 W. Kellogg Blvd. St. Paul , MN 55102 Attention: Albert Olson Re: MFL, Inc. et al . v. City of Saint Paul et al . (Court of Appeals No. 88-021-CG) Dear Mr. Olson: Enclosed herewith for filing please find copies of the Stipulation for Dismissal and Joint Motion to Dismiss the above-entitled proceedings. Yours truly, COCHRANE & BRE5NAHAN, P.A. By: � . Mar F. Seymou MFS/plc Enclosure i.�CEi°�� DEC ? j 1988 CITY CLER� COCHRANE & BRESNAHAN, P A. ATTORNEYS AT LAW 24 EAST 4th STREET SAINT PAUL. MINNESOTA 5 51 01-1 099 JOHN A. COCHRANE JAMES R. BRESNAHAN TELEPHONE STEWART C LOPER 612,'298-1950 MARV F.SEYMOUR CABLE ADDRESS:COBRA RONALD D.ALLEY' BRIAN N. TODER" 'Also admrttetl m �exas D e c emb e r 9 t 9 8 8 "Also atlmnted�n Cororado � Clerk of the Appellate Court 230 State Capitol St. Paul , MN 55155 Re: MFL, Inc. et al . v. City of St. Paul , et al . (Court of Appeals No. 88-021-CG) Dear Sir: Enelosed herewith for filing please find the original Stipulation of Dismissal and a Joint Motion to Dismiss the above-entitled proceedings . Yours truly, COCHRANE & BRESNAHAN, D.A. By: � G� Mc?"V r . SByIl20t1?^ ^- � ' .�. No. ao�-�, '�vL J♦ 1 / / %µ 2� vL�u� 1 O4! L'.J S vi^GPv N ��. �zui , rtr� ��ic� (012) 29$-1950 ALtcrney� �'O?' F��2�0^S ec: Mr. Philip By^ne , Esq. Atty. T .�. No. 13961 6�47 City Hall 15 W. Kellogg Blvd. St. Paul , MN 55102 (612) 298-5121 Attorney for Respondents City Clerk for the City of St. Paul STATE OF MINNESOTA IN COURT OF APPEALS ------------------------------------ ) MFL, Inc. , a Minnesota Corporation, ) d/b/a The Belmont Club, and ) David S.F. Fan, ) ) COURT OF APPEALS Relators , ) NUMBER: ) C�-88-1928 vs. ) ) City of Saint Paul , a Minnesota ) JOINT MOTION FOR AN municipal corporation, and the ) ORDER DISMISSING THESE City Couneil , consisting of James ) PROCEEDINGS, WITH Scheibel , President , Kiki Sonnen, ) PREJUDICE, AND WITHOUT Bob Long, Tom Dimond, Roger Goswitz ,') COSTS OR DISBURSEMENTS Bi11 Wilson and Janiee Rettman, ) TO ANY PARTY ) Respondents. ) ) ------------------------------------ Relators and Respondents jointly move this Court for an Order dismissing these proceedings, with prejudice, but without eosts or disbursements to any party. In support of this Motion, Relators and Respondents respectfully submit the Stipulation that is served and filed herewith in conformity with Rule 142. 01 of the Minnesota Rules of Civii Appellate Procedure. Respec�fully submitted, Respec�ful?y submitted, CO��:RANF & BRESNP.iiAh, D .A. �DWARD F. STARR, CIT� A:'TORNEv �V - - � �� mes . Bresnana. Ldward P S�arr � Rtty. Z .D. Nc. 11307 Dhili� ?. Byrne, Mary F. Sey�ou^ Assistant City Atto^ney Atty. I .D. No. 99�15� Atty. I .D. No. 13961 2�4 East Fourth S�^ee� 6�7 City Hall St. Paul , MN 55101 17 W. Kellogg Blvd. (612) 298-1950 (612) 298-5121 Attorneys for Relators Attorneys for Respondents p�`c. Dated this / day . Dated this � day of Deeember, 19�$-- of December, 19 � _��'� /�',�� STATE OF MINNESOTA IN COURT OF APPEALS ------------------------------------ ) ) MFL, Inc. , a Minnesota Corporation, ) d/b/a The Belmont Club, and ) David S.F. Fan, ) ) COURT OF APPEALS Relators, ) NUMBER: ) C�-88-1928 vs. ) ) ) City of Saint Paul , a Minnesota ) STIPULATION OF DISMISSAL municipal corporation, and the ) WITH PREJUDICE AND City Council , consisting of James ) WITHOUT COSTS OR Scheibel , President, Kiki Sonnen, ) DISBURSEMENTS Bob Long, Tom Dimond, Roger Goswitz, ) Bill Wilson and Janice Rettman, ) ) Respondents . ) ) ) ------------------------------------ Pursuant to Ruie 1�2.01 of the Minnesota Rules of �ivil 4gpella�� ?roeedure and sub�ec� to the approvai of the Court of i"•.�jJS21S °0:' `�.::° S�a�� Q° Mir_r.��O�a, Relato^s 2i1� Res�ond9?li.S hereby stipulate and agree �s �ollows: 1 . The above-e^�itled proceeu�ngs shall �a dismissed w�th prejudice; and, 2. No cos�s or disbursements shall be awarded to any party. ��J r��7�vvl.�O �� Respectfully submitted , Respectfully submitted , COCHRANE & BRESNAHAN, P.A. EDWARD P. STARR, CITY ATTORNEY By � �' �� J mes . Bresnah n Edward . Starr tt . I .D. No. 11307 Philip P. Byrne, Mary F. Seymour Assistant City Attorney Atty. I .D. No. 9945� Atty. I.D. No. 13961 2�4 East Fourth Street 6�47 City Hall St. Paul , MN 55101 ' 15 W. Kellogg Blvd. (612) 298-1950 ( 612) 298-5121 Attorneys for Relators Attorneys for Respondents �� (�' j Dated this day Dated this b'"''� day of December, 19 . of December, 19$�$� MFL, Inc. p�tti gy Dated this �3 day of Davi .F. Fan December, 19$$.- Its President Da�ed this � � day of �av�d S.F. Fa:� December, 1 ;uu. -2- r�^ i ,� ,.a -�,� <�F.� �i 1'- .:^-� -��.�5. ...�n� .:. � t��-,� �.� Y ��:�.� ��k Y "�"'�- U :, s �F�ts t,p : zg : �s^y �m,Y fy��h �w '1 y�: F s t �} �,rp �c x�� 1 - ^y h r s � r � �t � - �t i s� T3 3 � �6 � � 43 �' y l 4 �� i- -p �K 7'_ � 1 .f` l y 1 Y l � ✓ �•- v't � � ; � *' � �;` � � � n � .. f �_ '�;' ;ti ��; �n��,� ;J � q ; '� �� .�, t�,� .`� .:_ � � � - � �1_ C � �a� � �� !� b '. 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' '., ' ` ; x �� _ � �� '��A :{{ � r :� 3 .1� ` � �� t t � s� r .\ � �,� �, V' h f • . t � J �'�� t , � �p { ��``s , � S �,.� �� . 1' r _ �, i. .�` � ';'' �:Fi� { Y � � , � � � � +�� .:I+. �', y/ . .� � � i", � . y, � � � � � _ � � � C � `f r. , � E 7 �, 1� ,i. ; � � ��4 \../ ..� �;. � '�i � \ � _ ,1�` "'j, .\` , 1 _ , �'' 1 r$ ,-.\�: � 1 � , _ . ,y . . j _. _ . _ . . . ., .. . � . . � . . _ - . . � . �� , u ��. .. , . ., ) � . � J . n r . . . . . . C y - . Affidavit of Servlce By Mall �fate of �ir�r�e�ota, ss. CountJ of.............Ramse� ........... --..............................A��rt B. Olson �......................._......................._............. , bging �'irat duly sworn deposes and eays .......__._....._... ..._..........._.........__._..._. that on.....�..1s...................... 1�.�$..__.., ....._...jae served the attached Certificate ......:............. �--.. ..-�---....._... .._...... ...�.... _...._... .......upon._the Clerk of A��ellate'Court' . .�......._....__..........._.._..._.........._... •--� --- . ..... ... ... a f.a•n c� .._...._..�.._ _......_.._..____.._...............- J...._.... f�r .....•-••-•••-•....................................._.._._.... _....._.b� placin .........••-......._____..._.._.........__...__...._.. ....._.......-• g a true �ncl cvz•rect copJ thereof in an envelppe addressed as folZowB: w Clerk of the Appellate Courts. 230 State Capitol St. Paul, Nll�T 55155 (ruhich is the last knowra address of sdid attorney) and depositing the saryce, ' h postage epaid, in the United States naails at...........��.z...Paul..... , Minnesota. ! 1' ; ' ,--1�•--88--1st �Subscribed and suorn to before me tliis.................. - day o f. .... .ecembe,r ............ ........_._................_.:.ti`................__._.....__.. _......... .......... ..•�1.."C.c�`��F��"o.�-� _.,Q,�............................... ...................................._. ..... �:��w�,: TRUDY !v'. E-iQELZEL �!��,►,�' NOTA�Y P�iSL►C—MlNNESOTA . t �� ry��F�f COUNTY �.% My Commis�ion Expires Oct. 15,ta90 s • � STATE OF MINNESOTA IN COURT OF �4PPEALS - ------------------------------------ ) ) MFL, Ine. , a Minnesota Corporation, ) d/b/a The Belmont Club, and ) David S.F. Fan, ) CERTIFICATE OF DELIVERY ) OF TRANSCRIPT Relators, ) ) vs. ) COURT OF APPEALS ) NUMBER: C4-88-1928 City of Saint Paul, a Minnesota ) municipal corporation, and the ) OFFICE OF ADMINISTRATIVE City Couneil , eonsisting of James ) HEARING NUMBER: Seheibel, President, Kiki Sonnen, ) CITY 88-021-CG Bob Long, Tom Dimond, Roger Goswitz, ) 53-2101-2427-G Bill Wilson and Janice Rettman, ) ) Respondents. ) ) ) ------------------------------------ T0: CLERK OF THE APPELLATE COURTS 230 State Capitol, St. Paul , MN 55155 The record of the adverse hearing in the above-entitled matter, ineluding the transcript of the proceedings, whieh was held before The Honorable Carol Grant, Administrative Law Judge, on May 24 and 25, 1988, was delivered, by Ms. Grant, to Mr. Albert Olson, Clerk for the City of St. Paul . On September 30, 1988, Mr. Albert Olson hand delivered the record of the above-mentioned proceedings to the Clerk of the Appellate Courts and, thereafter, � ' received a receipt from the Clerk of Appellate Court dated October 3, 1988. Dated: �`� �-�f� Albert Olson �— City Clerk for the City of St. Paul Room 386, City Hall 15 West Kellogg Boulevard St. Paul , MN 55102 Subseribed and sworn to before me this r�J� day of November, 1988. , �� tar ublie 1:.:��:r;.� TRUDY M. HOELZEL . ;�' 1�L►,g NOTARY P�BLIC—MINNESOTA 1� RAM$EY COUNTY My Commiscion Ezpires Oct.15,1H90 -2- • �C� 1 �'.� (� .�a�""'��tio �! ,J�` _ �� - l ��j a CITY OF SAINT PAUL �;`a�tT p�4��', �V - � � � OFFICE OF THE CITY CLERK -� :�, _: := . s% 1i�ilm '? �+, ,°� ALBERT B. OLSON, C1TY CLERK ��4 i aa,,,m��e�-' 386 City Hall,Saint Paul,Minnesota 55102 612-298-4231 GEO MA OR'MER RECEiVED � __ 0 CT 0 7 1988 INVENTORY OF THE BELMONT CLUB LICEJVSE REVOCATION FILE CI�iY CLERK Certified Copy of St. Paul Council Resolution (C.F. 88-1426) and Council Findings & Conclusions revoking license ,. Copy of August 11, 1988 City Coucil meeting minutes - Findin�s of Fact, Conclusions and l�commendation of the fidministrative Law Judge �ncluding all evidence submitted at hearing and transcripts of the hearing Respondent's Objections to City Council's Proposed Findings, CAnclusions & Adverse A�tion License Inspector's Exception to Findings, Gonclusions and t�cormiendations . City's Brief in Response to hbtions and in Final Aryument Respondent's Exceptions, Nbtions, M�morandums and Final Argurrent � Cost bond for Certiorari Petition for Writ of Certiorari Statements of the case of petitioners � Writ of Certiorari � Nbtion for Stay on an expedited basis Affidavit of h�ry F. Seymour TRAN9�IITTm TO STATE OF MINNESOTA COURT OF APPEALS ON R EC EI VED BY K , � ,,.:_ �,., , 1 U I� COCHRANE & BRESNAHAN, P.A. ATTORNEYS AT LAW 24 EAST 4th STREET SAINT PAUL, MINNESOTA 55101-1099 JOHN A. COCHRANE JAMES R. BRESNAHAN TELEPHONE STEWART C. LOPER 612/298-1950 MARV F. SEYMOUR CABLE ADDRESS:COBRA RONALD D.A�LEY' BRIAN N.TODER" 'Also admnred�n Texas November 29� �988 "Also admined in Colorado Office of the City Clerk Room 386, City Hall 15 W. Kellogg Blvd. St. Paul , MN 55102 Attention: Albert Olson Re: MFL, Inc. et al . v. City of Saint Paul et al . (Court of Appeals No. 88-021-CG) Dear Mr. Olson: Enclosed please find a copy of the Certificate of Delivery of Transeript which has been served upon the Respondents� attorney on this date. Yours truly, COCHRANE & BRESNAHAN, P.A. By: � . Mary . Seymour MFS/ple Enclosure �tECEIVED NOV � �J 1988 CITY CLERt� rl..�-==�-=� STATE OF MINNESOTA IN COURT OF APPEALS ------------------------------------ ) ) MFL, Inc. , a Minnesota Corporation, ) d/b/a The Belmont Club, and ) David S.F. Fan, ) CERTIFICATE OF DELIVERY ) OF TRANSCRIPT Relators, ) ) vs. ) COURT OF APPEALS ) NUMBER: C4-88-1928 City of Saint Paul , a Minnesota ) municipal corporation, and the ) OFFICE OF ADMINISTRATIVE City Council , consisting of James ) HEARING NUMBER: Scheibel , President, Kiki Sonnen, ) CITY 88-021-CG Bob Long, Tom Dimond, Roger Goswitz , ) 53-2101-2427-G Bill Wilson and Janice Rettman, ) ) Respondents. ) ) ) ------------------------------------ T0: CLERK OF THE APPELLATE COURTS 230 State Capitol , St. Paul , MN 55155 The record of the adverse hearing in the above-entitled matter, including the transcript of the proceedings , which was held before The Honorable Carol Grant, Administrative Law Judge, on May 24 and 25, 1988, was delivered, by Ms. Grant, to Mr. Albert Olson, Clerk for the City of St. Paul. On September 30, 1988, Mr. Albert Olson hand delivered the record of the above-mentioned proceedings to the Clerk of the Appellate Courts and, thereafter, � Y received a receipt from the Clerk of Appellate Court dated October 3, 1988. Dated: Albert Olson City Clerk for the City of St . Paul Room 386, City Hall 15 West Kellogg Boulevard St. Paul , MN 55102 Subscribed and sworn to before me this day of November, 1988. Notary Publie -2- . ��-- r �-� � =-�a�:*:"'e;�w 1� _ �� - ` ��j p� CITY OF SAINT PAUL '"�� '="� OFFICE OF THE CITY CLERK ': ;; �, �t�m ,; o� y+. �� _ ALBERT B. OLSON, CITY CLERK ,��0ja4i��!'p�-''� 386 City Hall,Saint Paul,Minnesota 55102 CEORGE LATIMER 612-298-4231 MAYOR RECEIVED 0 CT 0 7 1988 INVENTORY OF THE BELMONT CLUB LICFNSE REVOCATION FILE CITY CL�RK Certi fied Copy of St. Paul Council Resolution (C.F. 88-1426) and Council Findings & Conclusions revoking license Copy of August 11, 1988 City Coucil meeting minutes Findin�s of Fact, Gonclusions and (�commendation of the Administrative law Judge including all evidence submitted at hearing and transcripts of the hearing Respondent's Objections to City Council 's Proposed Findings, Conclusions & Adverse Action License Inspector's Exception to Findings, Gonclusions and I�comnendations City's Brief in Response to Nbtions ard in Final Argument Respondent's Exceptions, Mbtions, N�morandums and Final Argument Cost bond for Certiorari Petition for Writ of Certiorari Statements of the case of petitioners Writ of Certiorari Nbtion for Stay on an exped ited basis Affidavit of N�ry F. Seymour TRANSMITTED TO STATE OF MINNESOTA COURT OF APPEALS ON REC EI VEO BY � . � �a 6�,,,, . 1 U I"� tl �` ` �� 1 �-r-`�� . ��°�""'°�� CITY OF SAINT PAUL �.��,�. ,,�w '~'� '='- OFFICE OF THE CITY CLERK z: :: �: iim Q� ;,,+� ,._ ALBERT B. OLSON, CITY CLERK 41��h�imn��per�~ 386 City Hall,Saint Paul,Minnesota 55102 612-298-4231 CEORCE LATIMER MAYOR INUENTORY OF THE BELMONT CLUB LICENSE REVOCATION FILE Certi fied Copy of St. Paul Council Resolution (C.F. 88-1426) and Council Findings & Conclusions revoking license Copy of August 11, 1988 City Coucil meeting minutes Findin�s of Fact, Conclusions and (�commendation of the Administrative Law Judge including all evidence submitted at hearing and transcripts of the hearing Respondent's Ob jections to Ci ty Counc i 1's Proposed Findings, C�nclusions & Adverse Action License Inspector's Exception to Findings, Gonclusions and (�cormiendations City's Brief in Response to Nbtions and in Final Argument Respondent's Exceptions, Nbtions, N@morandums and Final P�rgurrent Cost bond for Certiorari Petition for writ of Certiorari Statements of the case of petitioners Writ of Certiorari Nbtion for Stay on an expedited basis Affidavit of N�ry F. Seymour TRANSMITTED TO STATE OF MINNESOTA C RT 0 PEALS oN �- 3 � � � R EC EI VED BY � RECEIVED SEP 121988 ` � - CI7Y CLERK , _ ..,.� . FIRST BANK MINNEAPOLIS 8 4 3 7 COCHRANE & BRESNAHAN, P.A. FIRST BANK PLACE ATTORNEYS AT LAW MINNEAPOLiS, MN 55480 24 EAST 4TH STREET PH. 612-29&1950 »'2"910 ST. PAUL, MN 55101 ______________________ PAY Fifty and no/100---------------------'"-------- DATE-- AMOUNT 5 0. 0 0 Ton�E 9/12/88 ORDER OF C 1 e r k O f Ap p e 11 a t e C O ti T t S NOT VALID AFTER 90 DAYS ��'0084 3 7��' �:09 10000 2 2�: 60 2 3 30 �.�3 76�i' � , . ` �! . RECEIVEQ STATE OF MINNESOTA SEP 161988 IN COURT OF APPEALS CITY CLERK #C4-88-1928 MFL, Inc . , d/b/a The Belmont Club, et al . , Relators, vs . O R D E R Ci*y of St. Paul, et al . , Respondents. Considered and decided by Wozniak, Chief J. , Lansing, J. , and Kalitowski, J. Based upon the file, records and proceedings herein, and because: 1, By writ of certiorari issued September 12 , 198$ , relators seek review of a decision by the St. Paul City Council to revoke their restaurant, liquor, and entertainment licenses ; and 2 . Relators seek a stay of the revocation pending decision on their appeal; and 3 . The filing of a certiorari appeal does not automatically stay enforcement of the decision appealed from, but this court "may order a stay upon such terms as it deems proper, " Minn. Stat. § 14 .65 (1986 ) ; and 4 . Counsel for respondents informed this court that respondents will not oppose the stay request ; � . �. _ IT IS HEREBY O�tDERED: 1. The revocation of relators ' licenses by the St . Paul City Council is stayed until decision on this appeal or further order of this court. 2 . R�spondents shall immediately report any violation by relators of statute, ordinance, or license conditions to this court. 3. Any violation of such conditions , statute, or ordinance shall be grounds for immediate termination of the stay. Dated: September 16, 1988 BY THE COURT . � � � , hief Judge CLL:mbs (STY) ' " ` � �_ �-�' � � � COCHRANE & BRESNAHAN, P.A. ATfORNEYS AT LAW 24 EAST 4th STREET SAINT PAUL, MINNESOTA 55101-1099 JOHN A. COCHRANE JAMESR. BRESNAHAN TELEPHONE STEWART C. LOPER 612/298-1950 MARY F.SEYMOUR CABLE ADDRESS:COBRA RONALD D.A�LEY' BFIAN N.TODER�• OCtober 21 , 198$ 'Also admrtted in Texas "Also admitfed in Colorado RECEIVED Office of the City Clerk OCT 2� 198� Room 386, City Hall �f�Y CL�E�tK 15 W. Kellogg Blvd. St. Paul , MN 55102 Attention: Albert Olson Re: MFL, Ine. et al . v. City of Saint Paul et al . Dear Mr. Olson: Enclosed herewith for filing please find a copy of the Transeript Certificates for both Jill Columbus and Sandra J. Dreyling for the above-entitled matter. Yours truly, COCHRANE & BRESNAHAN, P.A. By: � � Mary . Seymour MFS/plc Enclosures � 4 APPELLATE COURT CASE N0: C -$$-19 2� STATE OF MINNESOTA RECEIVED IN COURT OF APPEALS OCT 2 41988 CITY CLERK ) ) MFL, Inc. , a Minnesota Corporation, ) d/b/a The Belmont Club, and ) David S.F. Fan, ) ) Petitioners, ) ) vs. ) TRANSCRIPT ) CERTIFICATE City of Saint Paul , a Minnesota ) municipal corporation, and the ) City Council , consisting of James ) Seheibel , President , Kiki Sonnen, ) Bob Long, Tom Dimond, Roger Goswitz , ) Bill Wilson and Janice Rettman, ) ) Respondents. ) ) ) STATE OF MINNESOTA) ) ss. COUNTY OF RAMSEY ) I , Jill Columbus, Court Reporter, and I , Mary Seymour, one of the attorneys for MFL, Inc. d/b/a/ The Belmont Club and David S.F. Fan, do hereby certify that: }. The transcript of the proceedings held before the City Council for the City of Saint Paul , Minnesota whieh were held on August 11 , 198$ was ordered on October 18, 1988. 2 . � Because the argument before the City Council is not in question and answer form, it is not possible to give an accurate estimate of the number of pages in the transcript. . � , 3. The estimated completion date is October 2�4 , 1988• �4 . Satisfactory financial arrangements have been made for transeription. ry F Seymour Ji olum us Subscribed and sworn to Subscribed and sworn to before me this a�� before me this a�� day of October, 1988. day of October, 1988. � . �� a � � ��Q.�,�co NOTARY PUBLIC NOTARY PUBLIC ■/�hhl./�h/�MM/�MM,A/�/�A/�/�/�hh�1hMMM�h i ■NnhMh/�MMhNhMhMMMMMMhMM� 52 SANpRA D. TUDISCO ,�,,+.;, SA��DRA D. TUDISCO <�� NOTARY PUBUC-MINNESOTA \• ' 'm! NOTARY PUBUC-MINNESOTA <`�� ,�'� RAMSEY CpUN7Y � ��* RAMSFY COUNTY � . tdy Comm.Expirec Nov. 15,1988 My Comm-Expires Nov. 15,1986 �V�v�v,VV��-vow�v'y„ �vvVVVVVVVVVVtivvvvvvti�v.�� "" � � '� ^�^%vv�:�VVVWVVW■ r VVVVVV•,niV�.�,��,,��,�„.��•nrvvVVVVWVVW■ . i. 4 -2- �--�� , APPELLATE COURT CASE N0: C -$$-19 2�— STATE OF MINNESOTA RECEIVED IN COURT OF APPEALS OCT 2� 1988 CITY CLERK ) ) MFL, Inc. , a Minnesota Corporation, ) d/b/a The Belmont Club, and ) David S.F. Fan, ) ) Petitioners, ) ) vs. ) TRANSCRIPT ) CERTIFICATE City of Saint Paul , a Minnesota ) municipal corporation, and the ) City Couneil , consisting of James ) Scheibel , President , Kiki Sonnen, ) Bob Long, Tom Dimond, Roger Goswitz , ) Bill Wilson and Janice Rettman, ) ) Respondents . ) ) ) STATE OF MINNESOTA) STATE OF MINNESOTA) ) ss. and ) ss. COUNTY OF RAMSEY ) COUNTY OF DAKOTA ) I , Sandra J. Dreyling, Court Reporter, and I , �. Mary Seymour, one of the attorneys for MFL, Inc. d/b/a/ The Belmont Club and David S.F. Fan, do hereby certify that: 1 . The transcript of the proceedings before the Honorable Carol Grant, which were held on May 2�4-25, 1988 in the above-entitled matter was ordered on October 18, 1988. 2. The number of pages in the transcript is estimated to be 297. « . � 3 • The estimated completion date is November 1 , 1988. 4 . Satisfactory financial arrangements have been made for transcription. �� ? � _,� +// ry . Seymour andra J. Dre ing Subscribed and sworn to Subscribed and sworn to before me this l / � before me this �c�` day of October, 1988. day of October, 1988. ` � . . �C;'(x �!i NOTARY PUBLIC NOTARY PU I �tMnh�P..�/�^•y 'r,7.^".�/`.n.nr.l..n�.ni,T/�n./`.T�S � � .;1,••. ^'.TODER <,: `';�y; Wo1�pT vueuc-MiNwESOt� BEVERLY J. HAUSWIRTH ,-�7Y r`�. ��`1l\l1� r'": '• �i NOTARY PUBUC—MiNNESOTA My Comm.EaC��°�P�•�•19'2 HENNEPIN COUNTY �yy�rVyWVVVVVVVVVVVVVVVVVVVVVVVVW� MY��s Jan.11.1�4 e'•. � -2- • • V l�/ I �� \^� V COCHRANE & BRESNAHAN, P.A. ATfORNEYS AT LAW 24 EAST 4th STREET SAINT PAUL, MINNESOTA 55101-1099 JOHN A.COCHRANE JAMES R. BRESNAHAN TELEPHONE STEWART C. LOPER 612/298-1950 MARV F.SEYMOUR CABLE ADDRESS:COBRA RONALD D.ALLEY' BRIAN N.TODER" NOV@T11b@2' 2� 1 9�� 'Also admrtted in Texas "Also admitted in Colorado HAND DELIVERED I�ECEfVED Office of the City Clerk N OV 0 21988 Room 386, City Hall ClTY CLERK, 15 W. Kellogg Blvd. St. Paul , MN 55102 Attention: Albert Olson Re: MFL, Ine. et al . v. City of Saint Paul et al . (Appellate Court File No. C�4-88-1928) Dear Mr. Olson: Enelosed herewith for filing, please find a copy of Joint Motion to Stay and Continue These Proceedings Until Final Determination of Related Criminal Proceedings, together with the Affidavit of David S.F. Fan in support thereof. Yours truly, COCHRAN & BRESNAHAN, P.A. B � Y ary . Seymour Attorne I.D. No. 99�5� 2� East Fourth Street St. Paul , MN 55101 (612) 298-1950 Attorneys for Relators MFS/ple Enelosures e STATE OF MINNESOTA IN COURT OF APPEALS ------------------------------------ ) MFL, Inc. , a Minnesota Corporation, ) d/b/a The Belmont Club, and ) David S.F. Fan, ) ) COURT OF APPEALS Relators , ) NUMBER: ) C4-88-1928 vs. ) ) City of Saint Paul , a Minnesota ) OFFICE OF ADMINISTRATIVE municipal corporation, and the ) HEARINGS NUMBER: City Couneil, consisting of James ) City-88-021-CG Scheibel , President , Kiki Sonnen, ) 53-2101-2427-G Bob Long, Tom Dimond, Roger Goswitz, ) Bill Wilson and Janice Rettman, ) ) Respondents. ) ) ------------------------------------ JOINT MOTION TO STAY AND CONTINUE THESE PROCEEDINGS UNTIL FINAL DETERMINATION OF RELATED CRIMINAL PROCEEDINGS Relators and Respondents jointly move this Court for an Order continuing these proceedings until a final determination is obtained in State of Minnesota v. David Suifong Fan (Ramsey County District Court File No. 4321835) . In support of this Motion, Relators and Respondents state the following: 1 , On September 6, 1988, the Saint Paul City Council adopted a resolution revoking Relators' on-sale intoxicating liquor, Sunday on-sale, and restaurant licenses (as well as the entertainment license to the extent it is applicable or effective in the premises licensed for sale of intoxicating liquor) , � commencing at 12: 01 a.m. on the day following publication of the resolution. Petitioners received notice of this resolution on September 9 , 1988. 2. This Court issued a Writ of Certiorari , pursuant to Relators' Petition, on September 12, 1988. Exhibit A which is attached hereto. 3• By Order dated September 16, 1988, this Court stayed the revocation of Relators' licenses until decision on the appeal or until further Order of this Court. Exhibit B which is attached hereto. � . On September 23, 1988, David S.F. Fan was convicted, on two (2) counts, of violating Minnesota Statutes §617.246. Post-trial motions were scheduled to be heard by the Ramsey County District Court on November 1 , 1988. 5. In the event that the District Court denies Mr. Fan' s post-trial motions, he intends to appeal his conviction. Affidavit of David S.F. Fan which is filed herewith. 6. If Mr. Fan' s convictions are upheld upon final appeal , the issues in this civil appeal concerning the license revocation will become moot because Mr. Fan intends to request a dismissal of this appeal. , 7. If Mr. Fan is successful on his post-trial motions or if Mr. Fan is successful on a criminal appeal , these proceedings may continue. In that event, the parties have agreed, subject to the order of the Court of Appeals, that these proceedings may continue with Respondents being allowed the full thirty-day period thereafter in whieh to file their brief. -2- . , t 8. Both the Relators and the Respondents believe that it is in the best interest of the parties hereto and in the interest of judicial economy to continue these proceedings until a final determination is obtained in Mr. Fan' s pending criminal proceedings. WHEREFORE, for the above-stated reasons, Relators and Respondents jointly request that this Court stay and continue these proceedings until a final determination is obtained in State of Minnesota v. David S.F. Fan (Ramsey County District Court File Number 4321835) . Respectfully submitted, Respectfully submitted, COCHRANE & BRESNAHAN, P.A. EDWARD P. STARR City Attorney g �, ,�� ames R. Bresnahan Philip B. Byrne Attorney I .D. No. 11307 Assistant City At orney Mary F. Seymour Attorney I .D. No. 13961 Attorney I .D. No. 99�+5�+ 647 City Hall and Court House 24 East Fourth Street St. Paul , MN 55102 St . Paul , MN 55101 ( 612) 298-5121 (612) 298-1950 Attorneys for Relator Attorneys for Respondents -3- • SiATE OF N.IN��S�.� IN COURT 0� APP�A�S - ------------------------------------ ) MFL, Inc. , a Minneso�a Corporation , ) WRIT OF CER:IORARI d/b/a The Belmont Club, and ) David S.F. Fan, ) ) COURT OF APPEALS Petitioners , ) NUMBER: � �'c�- �= �- 19a � �S. ) ) OFFICE OF ADMINISTRATIVE City of Saint Paul , a Minnesota ) HEARINGS NUMBER: municipal corporation, and the ) City-88-021-CG City Council , consisting of James ) 53-2101-2u27-G Scheibel , President , Kiki Sonnen, ) .. Bob Long, Tom Dimond , Roger Goswitz, ) DATE OF MAILING Eill Wilson and Janice Rettman, ) NOTICE OF DECISION: ) September 8 , 1988 Respondents . ) ) ------------------------------------ T0: THE CITY OF SAINT PAUL AND THE CIT]' COUNCIL OF SAIhT - PAUL: You are hereby ordered to return to the Court of Appeals within 30 'days fr�m this date the record, exhibits 2nd proceedings in the above-en�itled matter so that this Court may review the decision of the City Council of Saint Paul adopted on Sep�ember 6 , 1988 and mailed on the d2te noted above. Copies o° this w:i� 2nd accompzn��ing pe�ition shall be served forthwith ei�her personally or by ma�l upon �ne Ci�}• o� S2int Paul and the City Council of Sain� Paul , or its attorne�� , _ a�: 6�7 Cit3� H211 , Saint Pau1 , Minnesota ��102. Proof of service sha�l be iiled wi�h the clerk of appellate courts. DATED: ��o�— 0 B i�f:'�T�-8�'�C�:3�'i?ERL-E Clerk of Appellate Cou^ts �� .� � � , B3�: �1v ..� �/ .�.C/ G...,-�� Assistant Cierk EXHIBIT A ..�-' w:_. � ' STATE OF NINrdESOTA IN COURT OF APPEALS #c4-ea-192a F MFL, Inc . , d/b/a The Belmont Club, et al . , Relators , 0 R D E R vs . City of St. Paul, et al . , , Respondents . Considered and decided by Wozniak, Chief J . , Lansing, J • ► and Kalitowski, J. Based upon the file , records and proceedings herein, and because: � 1 , gy writ of certiorari issued September 12 , 1986 ► relators seek review of a decision by the St. Paul City Council to revoke their restaurant , liquor , and entertainment licenses ; and 2 . Relators seek a stay of the revocation pending decision on their appeal; and 3 , The filing of a certiorari appeal does not automatically stay enforcement of the decision appealed from, but this court "may order a stay upon such terms as it deems proper, " Minn. Stat. § 14 . 65 ( 1986 ) ; and 4 . Counsel for respondents. informed this court that respondents will not oppose the stay request ; EXHIBIT B � � IT IS HEREBY ORDERED: 1 . The revocation of relators ' licenses by the St . Paul City Council is stayed until decision on this appeal or further order of this court. 2 . Respondents shall immediately report any violation by relators of statute , ordinance , or license conditions to this court. , 3 , A� violation of such conditions , statute, or ordinance shall be grounds for immediate termination of the stay. Dated: September 16 , 1988 BY THE COURT � . OFFICE OF � � �. � APP�LL-AT� COURT@ hief Judge �� 2 0198$ CLL:mbs � (STY) ,. � �I LED . � � . , STATE OF M,INN�SOTti IN COURT OF APPEALS ------------------------------------ ) MFL, Inc. , a Minnesota Corporation, ) d/b/a The Belmont Club, and ) David S.F. Fan, ) ) COURT OF APPEALS Relators, ) NUMBER: ) C�-88-1928 vs. ) ) City of Saint Paul , a Minnesota ) OFFICE OF ADMINISTRATIVE municipal corporation, and the ) HEARINGS NUMBER: City Council , consisting of James ) City-88-021-CG Scheibel , President, Kiki Sonnen, ) 53-2�01-2427-G Bob Long, Tom Dimond , Roger Goswitz, ) Bill Wilson and Janice Rettman, ) ) Respondents. ) ) ------------------------------------ AFFZDAVIT OF DAVID S.F. FAN STATE OF MINNESOTA) ) ss. COUNTY Or RAN:SEY ) David S.F. Fan , after being duly sworn, deposes and says tha�: 1 .� I am one of the Relato^s in this proceeding and the sole. shareholder of MFL , Inc. , the other Relator herein. 2. I submit this Affidavit in support of the Joint Motion to continue these proceedings. 3. I am also the Defendant in State of Minnesota v. David Suifong Fan (Ramsey County District Court Number �321835) . . � � . On September 23 , 1988 , ? was convicted on two (2) counts of violating Minnesota Statutes §617 . 246 . 5 . Post-trial motions are scheduled to be heard by the Ramsey County District Court on November 1 , 1988. 6. If my post-trial motions in the criminal proceedings are denied , I intend to appeal my convictions. 7 . If I am unsuccessful on my post-trial motions and on appeal of the criminal convictions, I will request dismissal of this appeal of the revocation of the licenses held by MFL, Inc. Further your Affiant says not. (��'.�� --- David S.F. Fan Subscribed and sworn to '/� ■nnnnrn 1ni,.�r..•.��,n��nr.n.��.n qMO✓,r•;.r!� before me this o� < ��r' �:�,•'•1" F• SEYMOUR �f ��y HGTAP.Y FUo"LIL—MII�NE507A � day of '/ , 1988. �`�,"� ��J:SEY COUNTY �tY=�'*�'�.faDires Atar.28.1992 � � tVWVW��V`JJb'vV�..'�/VWWVVYVW�,ryL'�'yV• / �� i No;�ary _ ublic � -2- r c�c.rS ��` n � J� c�.S u � � � �- ' �a� � �-� n� -�s� �� . £ � 0�'1�� , � � o � C�� _ _ _ . ��o, , � � , ; �' i� , � � - � - �� ;o� �.r� . �� RECEIVED COCHRANE & BRESNAHAN, P.A. ATTORNEYS AT LAW ��T 2 519a� 24 EAST 4th STREET ^'Z� C�� V SAINT PAUL, MINNESOTA 55101-1099 JOHN A. COCHRANE JAMES R. BRESNAHAN TELEPHONE STEWART C. LOPER 612/298-1950 MARY F. SEYMOUR CABLE ADDRESS:COBRA RONALD D.ALLEY' BRIAN N.TODER" OCt.Ob@r' 2�j� �9�� 'Also admrfted m Texas "Also admifted m Colorado HAND DELIVERED Office of the City Clerk Room 386, City Hall 15 W. Kellogg Blvd. St. Paul , MN 55102 Attention: Albert Olson Re: MFL, Inc. et al . v. City of Saint Paul et al . (Appellate Court File No. C4-88-1928) Dear Mr. Olson: Enelosed herewith for filing please find the original and one copy of the transeript of the proceedings before the City Couneil of St. Paul on Thursday, August 11 , 1988 in the above-entitled matter. Yours truly, COCHRANE & BRESNAHAN, P.A. BY . M r . Seymour Attorne I .D. No. 9945�► 2�4 East Fourth Street St. Paul , MN 55101 (612) 298-1950 Attorneys for MFL, Inc. , d/b/a The Belmont Club, and David S.F. Fan MFS/plc Enelosures ce: Mr. Philip Byrne, Esq. Clerk of Appellate Court �M os�l�C.��!'i� YOr 1 � STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARING5 FOR THE CITY OF ST. PAUL AND CITY COUNCIL FOR THE CITY OF ST. PAUL --------------------------------------------------------- In the Mater of the On-sale Liquor License for the Belmont Club --------------------------------------------------------- Transcript of proceedings had before the City Council of the City of St. Paul , on Thursday, the 11th day of August, 1988 . � * * * � CHRISTOPHER L. COLUMBUS COURT REPORTERS � TELEPHONE 803 COMMERCE BUILDING ( 612 ) 224-5415 ST. PAUL, MINNESOTA 55101 i.�.. .� �. , .�.,� � � � � 2 1 APPEARANCES : 2 JAMES R. BRESNAHAN, Esquire, and MARY F. 3 SEYMOUR, Esquire, of the firm of Cochrane & Bresnahan, 4 24 East Fourth Street, St. Paul , Minnesota 55101 , 5 appeared representing MFL, Inc. , d/b/a the Belmont Club 6 and David S. F. Fan. 7 PHILIP BYRNE, Assistant City Attorney, 8 647 City Hall, St. Paul , Minnesota 55102 , appeared 9 representing the License Division, City License 10 Inspector, Joseph Carchedi . 11 JANE McPEAK, Assistant City Attorney, 647 � 12 City Hall , St. Paul , Minnesota 55102, appeared 13 representing the City Council . 14 15 COUNCIL MEMBERS: 16 James Scheibel , President 17 A1 Olson 18 Roger Goswitz 19 Bill Wilson 20 Janice Rettman 21 Tom Dimond 22 Bob Long 23 Kiki Sonnen 24 � 25 * * * CHRISTOPHER L. COLUMBUS COURT REPORTERS � 3 1 WHEREUPON, the following proceedings were duly had: -- 2 3 * * * 4 5 COUNCIL MEMBER: Item 21 is the report of 6 the Administrative Law Judge including 7 findings of fact, conclusions and 8 recommendation in the matter of adverse 9 hearing involving licenses held by the Belmont 10 Club located at 615 University Avenue . il (Brief discussion among Council members. ) � 12 MR. SCHEIBEL: Where are we going to -- 13 MS . RETTMAN: Put people? 14 MR. SCHEIBEL: -- Seat people? 15 MS. RETTMAN: Somebody can sit by -- 16 MR. SCHEIBEL: How many people are 17 representing the Belmont? Are there two? 18 MR. BRESNAHAN: Possibility ( Inaudible ) . 19 MS. RETTMAN: Well , maybe Phil could sit 20 ( indicating) , or are you going to do it up 21 here? 22 MR. SCHEIBEL: Do you want to stand? 23 MR. BRESNAHAN: That would be fine. 24 MR. SCHEIBEL: Okay. If you want to be . 25 seated, at some point I would suggest, Phil, CHRISTOPHER L. COLUMBUS COURT REPORTERS � 4 1 you would be seated here ( indicating) and then 2 the representatives of the Belmont be seated 3 on that side ( indicating) ? 4 MR. BRESNAHAN: Fine . 5 (Brief discussion among Council members. ) 6 MR. SCHEIBEL: Do you want to run through 7 the procedures? 8 (Brief discussion among Council members. ) 9 MS . MCPEAK: I ' ll just very briefly go 10 through the procedures that have been 11 recommended to you and that I believe you have � 12 accepted. That at this partieular hearing you 13 have the attorney for the licensee, you have 14 Mr. Byrne who is representing the license 15 inpector and I today will be representing the 16 Council . So any questions that you may have 17 in terms of legal advice for yourself should 18 be directed to me instead of to Mr . Byrne . 19 What you' ll be doing is hearing arguments . I 20 believe both parties have filed exceptions to 21 the Administrative Law Judge' s report. And 22 all of you have had a copy of that and you've 23 had an opportunity to review it. Once you 24 have heard the arguments of both sides, you � 25 are certainly able to question them. It' s not CHRISTOPHER L. COLUMBUS COURT REPORTERS . 5 1 expected or intended that you would hear any 2 additional testimony and that your questions 3 would be directed only to matters that were 4 presented to the Administrative Law ,7udge and 5 not any other matters that either have come to 6 light since then or were excluded. I think 7 that' s it very briefly. At the end of your 8 deliberations, just like anything else, you 9 make a decision and then that decision is put 10 in the form of a resolution which you adopt at 11 a later meeting. � 12 MR. SCHEIBEL: Mr . Byrne? 13 MR. BYRNE: Thank you, Mr. President, 14 members of the Council . My name is Philip 15 Byrne . i �m an Assistant City Attorney for the 16 City of St. Paul and I represent at this 17 meeting the license division, the City license 18 inspector . This particular hearing comes to 19 you at the end of a fairly long process. We 20 started this process formally, there were some 21 initial steps and hearing scheduled before 22 this body before we had the new procedures in 23 place . This process started formally with the 24 May 3rd notice of hearing to the Belmont Club. � 25 We then had two full days of hearings before CHRISTOPHER L. COLUMBUS COURT REPORTERS � 6 1 an Administrative Law Judge over at the St. 2 Paul Public Library. And after a number of 3 legal and factual issues were raised and 4 argued and briefs submitted, the report of the 5 Administrative Law Judge was submitted July 6 7th. Both parties as you know, and you should 7 all have copies of them, have filed 8 exceptions. They are areas of disagreement 9 with the findings of fact and conclusions of 10 law of the Administrative Law Judge . It' s now 11 a time here for the Council to consider what � 12 action it will take on that report. Actually, 13 you' re not taking action on the report, you' re 14 taking action on the underlying record. The 15 report is given to you to assist you in making 16 your determination as to what action you will 17 take. I �m going to recommend that whatever 18 disciplinary action you choose to impose, 19 should you choose to do that, that you adopt 20 the eight amended findings of fact that I 've 21 submitted for your consideration and the five 22 amended conclusions of law. I would urge you 23 that and maintain to you that there is 24 sufficient evidence in the record to support � 25 those amended findings and conclusions of law. CHRISTOPHER L. COLUMBUS COURT REPORTERS � � 1 Now I 've covered in detail in my exceptions 2 and in the brief which was attached to those 3 exceptions, that brief which was submitted to 4 the Administrative Law Judge and which sets 5 out in detail the evidence and our view of the 6 evidence and references to the transcript that 7 has been available to you in the City clerk� s 8 office, the actual transcript of the testimony 9 at the hearing, so I won' t go through that in 10 great detail . But I do want to touch on the 11 high points of the two relatively major issues � 12 that were heard, the factual issues that were 13 heard before the Administrative Law Judge . 14 The first matter is the hiring by the license 15 holder of a 13-year-old to engage in sexual 16 performances at the bar . That particular 17 matter is a violation of the state statute 18 which we've cited in our materials which makes 19 it unlawful for a person to employ, use or 20 permit a minor to engage either alone or with 21 others in any sexual performance if the person 22 knows or has reason to know that the conduct 23 intended is going to be a sexual performance. 24 It' s important to know in that connection that � 25 neither consent by the minor to doing that nor CHRISTOPHER L. COLUMBUS COURT REPORTERS � 8 1 a mistake as to the minor� s age is a defense 2 to that statute or to that unlawful conduct. 3 Now in this case the facts are that the minor 4 was a 13-year-old girl . She lied when she was 5 hired. She said she was 18 years old. But 6 she had no identification as to age, she was 7 not asked to produce identification as to age, 8 she did not fill out an employment application 9 and did not sign or fill out the standard form 10 contract that the bar or the other 11 corporation, Dancing Angels Incorporated, had � 12 their dancers sign until January 5th, 1988 , 13 some six to eight weeks after she started 14 dancing. The license holder, David Fan, was 15 present when the 13-year-old girl was 16 auditioned and hired to dance . I use the word 17 dance as a short cut. I think you can draw an 18 inference from the evidence before you that 19 dancing is the last word that should apply to 20 what they were hired to do. The evidence was 21 that on the time that a police officer 22 observed the so-called dancing, it was 23 definitely a sexual performance within the 24 meaning of the statute . Now the license � 25 holder was present. The license holder had an CHRISTOPHER L. COLUMBUS COURT REPORTERS � 9 1 opportunity at the time that the girl was 2 auditioned to ask for an ID, to ask questions 3 about age, to ask for her background in 4 performing, and did not do any of that. The 5 license holder at that time was both the owner 6 of the bar and the president of this other 7 corporation, this Dancing Angels, which they 8 maintain is technically the employer of the 9 dancers. He did not sell his interest in that 10 particular corporation or business operation 11 until after the 13-year-old was arrested and . 12 taken out of the bar . The facts are 13 additional that the minor did on February 8th 14 give three performances that were sexual 15 performances under the proscription and the 16 statute . The arrangement within the bar was 17 the glass wall type arrangement with slots in 18 the glass wall through which the customers 19 could pass dollar bills for tips. And the 20 young woman testified that she would make up 21 to $50 a night in tips while she was dancing. 22 The only identification she ever had was an 23 Unbank card. This is a card that you obtain 24 from a check cashing service which even the • 25 employees of the license holder admit was CHRISTOPHER L. COLUMBUS COURT REPORTERS ! 10 1 worthless as identification. I would submit 2 to you that you can infer from the evidence as 3 to what you will see in the transcript and the 4 fact that the dancers, this particular minor, 5 did perform as she did, that you can infer 6 from that that he had knowledge and you can 7 infer from your own general knowledge with the 8 state affairs in the world that he knew what 9 the dancers would have to do to satisfy the 10 customers, to get tips and to perform in that 11 environment. You can infer from the evidence • 12 that the purpose in hiring the girl was to 13 give that type of performance . Now the 14 Administrative Law Judge in her memorandum 15 indicated that she thought the evidence of the 16 City was deficient in that they had only 17 observed one night' s activities, likening it 18 to a drug situation where you make a number of 19 undercover buys before you make an arrest. 20 But in this situation that was simply 21 impossible. The officers had information that 22 there was an underage dancer. And in order to 23 pile up more evidence, they would have had to 24 have permitted a 13 or at that time a 14 year . 25 old girl to continue to dance in that CHRISTOPHER L. COLUMBUS COURT REPORTERS � 11 1 atmosphere and to take the chance that she 2 would run or not be available at some future 3 time . The Administrative Law Judge in her 4 findings indicated that the girl looked older 5 than 13 or 14 and that she could be mistaken 6 for an 18-year-old. Well , as a finding of 7 fact, that' s not very strong. That' s pretty 8 weak . Appearance is not the only way that you 9 judge somebody' s age . You judge by the way 10 they carry themselves, by the way they speak, 11 by the way they act. And I think it' s at that � 12 point that the Administrative Law Judge went 13 wrong in evaluating the testimony and the 14 appearance and age of the girl . She indicates 15 in her memorandum that the girl on the witness 16 stand appeared not to take the proceedings 17 very seriously. She indicated that in 18 response to a question and answer, a question 19 regarding why she lied about her age, she gave 20 a funny grin and an answer that wasn' t 21 convincing to the Hearing Examiner. Well , 22 these are the reactions of an immature person. 23 They are the reactions that you would 24 associate with a teenager, typically making � 25 inappropriate responses in formal settings CHRISTOPHER L. COLUMBUS COURT REPORTERS � 12 1 when they' re the subject of attention or 2 they' re nervous or they' re ill at ease. And I 3 think it' s an indication that the 4 Administrative Law Judge was aware of that, 5 that in her memorandum at page 8 stated, "That 6 a reasonable person would have inquired 7 further about the minor' s age despite her 8 mature appearance. " I think in that regard it 9 should again be pointed out that even if she 10 did look to be 18 , the statute is clear that a 11 mistake as to her age is not a defense . � 12 Finally, it' s interesting in terms of the 13 policy of checking for age that the statute 14 regarding consumption or sale and consumption 15 by a minor in a bar indicates that proof of 16 age for purchasing or consuming alcoholic 17 beverages may be established only by a valid 18 driver� s license or Minnesota identification 19 card or in the case of a foreign national , by 20 a valid passport. Certainly you can hold an 21 individual who is hiring somebody who could be 22 mistaken for an 18-year-old to a standard that 23 would at least require some sort of picture 24 identification or any kind of reasonable � 25 inquiry. None of that was done . As to the CHRISTOPHER L. COLUMBUS COURT REPORTERS � 13 1 matter relating to the prostitution, I think 2 what illustrates the situation with respect to 3 prostitution both in the bar, in the bar' s 4 parking lot and outside the bar, is the 5 Administrative Law Judge' s observation, two 6 observations, one on page 10 of her memo, she 7 characterizes the situation as one in which 8 bar management did not impede the police in 9 their activities but was passive in its own 10 activities to discourage prostitution, except 11 in the last several months . The evidence was � 12 quite clear that right about the time the City 13 was gearing up to have administrative 14 proceedings against the license, there was a 15 dramatic change in how the bar responded to 16 those problems. And i think that' s the theme 17 throughout the Administrative Law Judge' s 18 findings, conclusions and explanatory 19 memorandum, that they did make a change and 20 that given the change, what' s the urgency of 21 punishing the bar. Well , I think it' s clear 22 that -- from the evidence that prostitutes 23 were using the bar, they were using it in 24 sufficient numbers and frequency to create an � 25 inference that the employees and the owner CHRISTOPHER L. COLUMBUS COURT REPORTERS � 14 1 knew of that activity. You may hear something 2 made by counsel for the bar, and the 3 Administrative Law Judge referred to it in 4 passing, that there were no arrests inside the 5 bar for prostitution. And there was a case 6 several years back involving I think the South 7 of the Border Bar in Minneapolis, the Sabes 8 case, in which they upheld a revocation of a 9 license where a bar was used as a resort for 10 prostitutes and cited as part of the evidence 11 there that a number of arrests were made 12 inside the bar . well , one can only assume and • 13 guess at that but as a matter of history, it 14 used to be in dealing with prostitution and 15 law enforcement that officers would, when they 16 judged that a contact had been made between a 17 prostitute and a john, would move in right 18 away, arrest the prostitute and talk to the 19 john and promise immunity if that person would 20 testify the fact that an offer in violation of 21 the statute and ordinance was made so that you 22 could make arrests in a bar or when two people 23 got in a car and you could do that. Today, 24 however, the practice is different because of � 25 problems of discriminatory enforcement where CHRISTOPHER L. COLUMBUS COURT REPORTERS � 15 1 the charges are made that you' re exclusively 2 focusing on the prostitutes who are female and 3 letting the male johns go and, second, that 4 that' s just a matter of bad policy, that you 5 don' t -- you may control the problem better by 6 going after the customers as well as the 7 prostitutes. So that now when an officer 8 observes a prostitute and prospective customer 9 making a contact in a bar, it is -- i mean if 10 you were under the old system, he could try to 11 make the arrest and get the customer to � 12 testify but now he has to follow them out to 13 the car to permit them to go far enough so 14 that he can get enough evidence to arrest 15 both, not just one . Officer Lutchen 16 testified, and that' s in the transcript, that 17 -- that there were many instances which he 18 observed in which contacts were made inside 19 the bar, that the evidence is quite clear that 20 the bar was used as a haven for the 21 prostitutes, a place to hide from the police, 22 a place to warm up. And in the transcript at 23 page 146 and 149 to 150, Officer Lutchen 24 testified, of course, that he had seen those � 25 acts himself. Now it' s -- if you accept the CHRISTOPHER L. COLUMBUS COURT REPORTERS � 16 1 testimony and, of course, that' s the position 2 I 'm arguing for, if you accept the testimony 3 of the police officers, it' s hard to know how 4 the employees of the bar could not know what 5 was going on. It' s hard to know how somebody 6 who works in a bar over a long period of time, 7 several weeks, cannot observe and see what' s 8 going on right under their -- their noses . 9 But curiously the testimony at the hearing by 10 the employees of the bar was that they had 11 absolutely no idea who the prostitutes were, � 12 had absolutely no idea that there was a 13 problem in the parking lot. Just as one small 14 indication as to what the reality of the 15 situation was, we have in here a charge or an 16 allegation involving -- involving an 17 interference with police officers in the 18 performance of their assignment by an employee 19 of the licensee on about January 23rd of 1988 . 20 Well , standing by itself, that' s not a very 21 major matter . And according to the testimony, 22 the management of the bar apologized for that 23 incident. But what it does show is that there 24 was at least one bouncer, at least one • 25 employee of the bar, who was aware that there CHRISTOPHER L. COLUMBUS COURT REPORTERS � 17 1 was a problem in the parking lot, was aware 2 that police officers were out there trying to 3 do something about it, and ran out and made an 4 attempt to interfere . It shows less about 5 culpability for that incident then it shows 6 about the bar� s ability to know what was going 7 on and to control the premises and their 8 parking lot. Now it is clear according to the 9 testimony from citizens from the neighborhood 10 which we presented that -- and the officers, 11 that the situation had improved in the last � 12 several months. And the Administrative Law 13 Judge says that and did find that it was a 14 nuisance to the neighborhood but now that the 15 problem has cleared up, there seems to be no 16 useful purpose served by punishing the bar. I 17 think it' s possible to disagree with that. 18 Reforming after your cause is too easy and too 19 simple . And perhaps there are situations 20 where you want to encourage people to mend 21 their ways and to rectify situations but here 22 where it was permitted to go on for so long 23 and the timing of the action only came after 24 proceedings were started, it seems to me that � 25 you have other purposes of regulation to take CHRISTOPHER L. COLUMBUS COURT REPORTERS � 18 1 into account, too, deterring other bar owners, 2 providing an example, providing some 3 consistency in your enforcement. And so that 4 I would say the evidence is clearly there for 5 some punishment for the prostitution 6 activities that occurred inside the bar and in 7 their parking lot. I think probably in 8 conclusion, I have one initial -- one 9 preliminary comment. It seems to me that much 10 too much has been made recently about the 11 recommendations of the Administrative Law � 12 Judge. They are purely advisory. They are 13 people who we have contracted to hire, 14 contracted to hear these matters . And what we 15 ask from them is that they give us a fact 16 hearing, a procedurally fair due process 17 hearing, and give us findings of fact and 18 conclusions of law. And when we were first 19 going over this procedure, it was almost as an 20 aside, should we have recommendations from 21 them as well . And it was determined that 22 perhaps a recommendation would be useful . But 23 they' re clearly only advisory. You are 24 clearly the body that has the power to decide � 25 what the punishment is going to be. And I CHRISTOPHER L. COLUMBUS COURT REPORTERS . 19 1 think you can disregard their recommendations 2 or accept them as you see fit in accordance 3 with your own past practice, your own view of 4 the facts in this particular case, in view of 5 if we had a matrix that applied to this one, 6 if there were penalty guidelines for this, in 7 view of that. But you are the final judge of 8 that. You have the burden here of deciding 9 what' s evenhanded and fair to all parties. 10 With respect to the findings of fact and 11 conclusions of law, there you should weigh the � 12 Hearing Officer' s recommendations just a 13 little bit more carefully. They have had a 14 chance to view the witnesses, to judge their 15 demeanor and credibility. And in departing 16 from that, you should have for yourself a 17 reason why. And what I 've attempted to do is 18 point out reasons why you can depart from 19 various findings or determinations by the 20 Hearing Officer in regard to the factual 21 matters relating the young girl doing the 22 dancing and the prostitution activities. In 23 conclusion, I would submit to you that there 24 is sufficient evidence here to justify � 25 revocation of this license . I 'm not CHRISTOPHER L. COLUMBUS COURT REPORTERS . 20 1 recommending you do it, I 'm saying there' s 2 sufficient evidence there to do it. If you 3 determine that a severe suspension or some 4 suspension not so severe would be appropriate, 5 I have in my brief to the Administrative Law 6 Judge given a number of conditions to attach 7 as well and would recommend or urge you to 8 consider those . There is one of those 9 conditions which on reviewing it that I -- I 10 would not urge you to adopt. And it' s No. 4 , 11 the one relating to elimination of openings in • 12 the glass wall separating the licensed premise 13 from the dancers . That really doesn't fit 14 with any of the evidence or the direction of 15 the hearing and I think would not be 16 responsive to the main charges of -- what I 17 had in mind in doing it was that perhaps that 18 would eliminate some of the economic incentive 19 for dancers to engage in performances that 20 violated the statute. But I -- that wasn' t 21 the main thrust of our charges and it isn't 22 the main thrust of what is involved here with 23 the evidence . So I would urge you not to 24 impose No. 4 . I believe that' s all I have by � 25 way of comments for you. If you have any CHRISTOPHER L. COLUMBUS COURT REPORTERS � 21 1 questions, either now or later, I would be 2 glad to respond to them. 3 MR. SCHEIBEL: I think we' ll hold off on 4 -- i checked with Ms . McPeak and I think we'll 5 allow both opening statements and then have 6 questions later. 7 (Brief discussion among Council members. ) 8 MR. BRESNAHAN: Mr . Chairman, members of 9 the Council, I 'm Jim Bresnahan representing 10 MFL, inc. doing business as the Belmont Club, 11 and did in fact represent them during the � 12 administrative law hearing of which Mr . Byrne 13 represented the City. Looking at this 14 administrative law hearing that we did have, 15 it lasted for two days, we have a transcript 16 of that testimony that' s 294 pages. And to my 17 knowledge not one of the Council members 18 attended any of those hearings so the 19 credibility of the witnesses, the person that 20 had the best knowledge in the credibility of 21 the witnesses is the Law ,7udge. That is the 22 person that makes the determination of the 23 facts that were presented to that body and the 24 recommendations to this Council . The � 25 credibility of the witnesses can be argued by CHRISTOPHER L. COLUMBUS COURT REPORTERS � 22 1 Counsel, Mr . Byrne and myself, but the person 2 that made the fact finding is the person that 3 had the best credibility of any witness, and 4 that in fact is what she did. Under her 5 recommendations it' s stated that, "The City 6 has not sustained its burden of proving that 7 TDM, " and that was the initials of the girl, 8 "was employed for the purpose of engaging in 9 sexual performance, has not sustained its 10 burden of proving that the licensee permitted 11 a minor to engage in sexual performance. " � 12 That is a conclusion that she' s made in her 13 findings and she was the person that was able 14 to hear most of the evidence . Now concerning 15 that issue, on page 90 of the transcript, in 16 questioning TDM, the question was, "A lady, 17 she told me to come in for an audition, she 18 asked me how old I was and stuff and I lied. " 19 That' s under oath she stated that in the 20 testimony. The testimony is also concluded 21 from this same witness that Mr. Fan was 22 present at the audition. On page 92, "Did you 23 talk with Mr . Fan? No. Did he talk to you? 24 No. I told Nancy I was 18 . " And on page 99 � 25 of the transcript after she was hired it CHRISTOPHER L. COLUMBUS COURT REPORTERS � 23 1 states that, "David Fan told me to get out of 2 the bar because I didn' t -- i wasn' t old 3 enough to drink, " and then she came in to get 4 a Coke and she was told by Mr . Fan to get out 5 of the bar. The testimony also indicates on 6 behalf of the employees of Dancing Angels that 7 TDM gave a birth certificate at the time she 8 was hired. That birth certificate indicated 9 that she was 18 years old. TDM testified that 10 she didn' t give a birth certificate . TDM did 11 testify that she had the Unbank card that � 12 showed that she was 18 years old. The 13 credibility of the witnesses as to whether or 14 not they believed TDM at the time that she 15 showed the birth certificate to Nancy was 16 taken in consideration by the Law Judge . And 17 she believed apparently that she did in fact 18 show a birth certificate and that the -- and 19 that the City did not sustain its burden of 20 proof that this person was underage at the 21 time she was hired. Now let' s talk about the 22 sexual conduct of the dancing. There is 23 Officer Lawrence Rogers who is a police 24 officer with the City of St. Paul for over � 25 five years. He stated that he was an CHRISTOPHER L. COLUMBUS COURT REPORTERS . 24 1 undercover police officer in civilian clothes 2 at the bar on February 8th, 1988 . He said he 3 was at the bar because he had knowledge that 4 the -- there was a warrant for a runaway from 5 a foster home . And that' s on page 126 of the 6 transcript. He states that he observed this 7 person dancing, he left the bar, called 8 Officer Lutchen, Officer Lutchen made the 9 arrest. This occurred on February 8th, 1988 , 10 and he made a report. But he did not arrest 11 that dancer on February 8th or an arrest of � 12 that dancer for sexual conduct under the code 13 was ever made . The only thing that she was 14 picked up for was because there was a warrant 15 for her arrest. Now how did this report come 16 into being? The City Attorney asked the 17 police department for the officer to make a 18 supplementary report as to what he saw on 19 February 8th. That report was not made until 20 February 22nd, 1988 . And the conduct that was 21 complained of and was offered, and we think 22 offered improperly under the rules and we've 23 objected to that report being offered, was not 24 taken into consideration by the Law Judge as • 25 being very credible because it was 15 days CHRISTOPHER L. COLUMBUS COURT REPORTERS � 25 1 after the incident occurred and the report was 2 only made after the City Attorneys had 3 requested the police department to make a 4 supplementary report. The reason for the 5 arrest was the warrant, not the sexual conduct 6 of the individual involved. Now Mr . Byrne has 7 also indicated that this minor did give a 8 sexual performance. But if that was true, 9 then the police officer who had five years of 10 experience should have arrested her for that 11 sexual performance in violation of that � 12 ordinance . And that was not done . As far as 13 Mr . Fan is concerned, there' s 294 pages of 14 testimony in this. There is not one person 15 that has testified that Mr. Fan has a bad 16 moral character . In fact, both of the police 17 officers or two of the police officers said 18 the management was very cooperative with the 19 police department. A community leader by the 20 name of Melendez said that he had talked to 21 him and he was always polite. Mrs. Zachary 22 testified of of his exemplary character as far 23 as she knew it. And there is not one iota of 24 testimony concerning the fact that Mr . Fan has � 25 any bad moral character, which is required CHRISTOPHER L. COLUMBUS COURT REPORTERS • 26 1 under your ordinance in order to revoke the 2 license. Now the City had all kinds of 3 opportunity to present as many witnesses that 4 they want at this hearing. And not one of 5 them, not one of them in any of this testimony 6 ever said that Mr . Fan had bad moral 7 character . This is the City' s witness, Mr . 8 Manuel Melendez, Jr . , who lived at 807 Lafond. 9 Page 48 of his testimony, he says in his 10 opinion the Belmont Club is not the cause of 11 prostitution on Dale and University. On page � 12 61 of the transcript he gives his reason for 13 the prostitution at that location as, "The 14 reason is absentee landlords and low rent. " 15 The City had a study that was commissioned by 16 the City that shows that 70 percent of all the 17 prostitution in the state -- in the City of 18 St. Paul runs between Avon and Sherburne, 19 Charles, University and Kent Avenue. Now when 20 we get to talking about Mr. Fan, the licensee 21 and the applicant here, one, he' s never had a 22 liquor violation, never been convicted of any 23 violation under the liquor act, he' s never 24 been violated -- had any conviction of any � 25 sort at any time at the time of this hearing CHRISTOPHER L. COLUMBUS COURT REPORTERS � 27 1 and to this date. There is no criminal 2 conviction whatsoever that Mr . Fan has in 3 applying for this application. The chief 4 witness for the City was Officer Charles 5 Lutchen. He' s had ten years on the police 6 force and most of if at that locality, 7 University and Dale. On page 149 of the 8 transcript, he never made an arrest for 9 solicitation in the bar itself. He states 10 that he' s been in the bar many times, as many 11 as three times a night, and that he was aware � 12 of the report of the City that 70 percent of 13 all the prostitutes are from University 14 Avenue, Charles, Victoria or west, Western on 15 the east, but he never made an arrest in the 16 Belmont himself. In questioning him 17 concerning the activity of prostitutes, on 18 page 161 he says, "I believe I made one arrest 19 in the parking lot of the Belmont. " He said 20 on page 162 that he arrested a pimp in 21 Lendway' s parking lot in 1987 . On page 162 he 22 states he made two arrests in the Skipper� s 23 parking lot in 18 months. He stated on page 24 162 that at the corner of Sherburne and Dale � 25 he made 20 to 30 prostitution arrests, and CHRISTOPHER L. COLUMBUS COURT REPORTERS i28 1 that' s a guess. At the corner of University 2 and Dale he made 20 prostitution arrests he 3 guesses. He made four arrests on the north 4 side of Alexander� s Bookstore . And he made 5 arrests in the vicinity of C1ark Submarine 6 Sandwich. He also testified that prostitutes 7 that were frequenting the area would use Clark 8 Submarine Sandwich, wendy' s, to get in out of 9 the cold and the rain and the rest of that. 10 In talking -- in answer to Mr . Byrne' s 11 situation about us doing something in the last � 12 month or two before this hearing came on, we 13 did in fact meet with the City to see if we 14 could solve some of our problems. And we did 15 in fact hire a full-time parking attendant to 16 watch our lot. But one of the witnesses for 17 the City was a Bruce Eisenmenger . He lives at 18 595 Sherburne Avenue and had lived there for 19 six years. And on page 118 of the transcript 20 I said -- this is in May now -- "Do you think 21 that increased police patrol would aid and 22 assist in prostitution?" And he says, "Well , " 23 and I 'm quoting, "Well, I think it has . With 24 prostitution sweep, there' s been a dramatic � 25 decrease in the activity because of the police CHRISTOPHER L. COLUMBUS COURT REPORTERS . 29 1 patrols . " Now we' re trying to work a 2 situation with the City in order to protect 3 our parking lot and now I 'm hearing Mr . Byrne 4 saying that we are being penalized for doing 5 that, but in the meantime the City which just 6 started to do that by their own witness that 7 they brought here said there was a dramatic 8 decrease because of the john sweep and all of 9 the activity that the police did. So I don� t 10 believe that we should be penalized for coming 11 to the City and asking them to be able to aid � 12 and assist in the prostitution problem, 13 because it' s not only our problem, it' s the 14 problem on the corner and in the whole 15 vicinity. But apparently somebody has pulled 16 in on top of us and said we' re the only 17 problem. And that' s not true . And the City' s 18 study makes -- and that' s a part of the 19 evidence of this record, the City' s study, 20 where the prostitution problem is . And it' s 21 not caused by the Belmont. We have filed with 22 the City our amended findings . And it' s our 23 position, of course, that we do not believe 24 that we are entitled to a revocation because • 25 the City has not sustained their burden of CHRISTOPHER L. COLUMBUS COURT REPORTERS � 30 1 proof. And under the Council � s own resolution 2 concerning this, I would like to read the 3 amendment which says, "The Council or 4 Committee� s scope of review of the Hearing 5 Examiner' s recommended findings of fact and 6 conclusion of law shall be limited to whether 7 legal errors were made or whether the decision 8 was clearly erroneous given the evidence 9 presented. That is the criteria under your 10 amendment to the -- to your act here. I 11 believe that if you take the evidence and the � 12 credibility of the evidence as determined by 13 the Hearing Examiner, there is no grounds for 14 suspension. The $2 , 000 fine as recommended is 15 a nuisance, the nuisance being our parking 16 lot. And I �m of the opinion that if we have a 17 $2, 000 fine and it' s not suspended, then 18 everybody else in the area that has a parking 19 lot that has had an arrest has the same 20 problem as we do. And they all have business 21 licenses just like we do, maybe not a liquor 22 license but other business licenses. Under 23 the Law Judge' s recommendation, the City has 24 not sustained its burden of proving that the • 25 licensee is not of good moral character . CHRISTOPHER L. COLUMBUS COURT REPORTERS � 31 1 That' s based on the credibility of the 2 evidence. Under 12 , the City has not 3 sustained its burden of proving that the 4 license permitted the licensed premises to be 5 used as a resort for prostitutes . That' s a 6 finding. And No. 14 had to do with the 7 parking lot. It' s our position that after two 8 days of hearing with the witnesses presented 9 by the City, by the briefs submitted by both 10 parties, that the Law Judge has made a factual 11 determination that the City has not sustained � 12 its burden of proof in this matter and that we 13 recommend that the license be renewed. 14 MR. BYRNE: Mr . President, could I just 15 respond briefly? 16 MR. SCHEIBEL: Maybe we could have your 17 response and then maybe break until 1 :15? 18 Would this be a good time to break, before we 19 get into any questions? 20 MR. BYRNE: Just very briefly, Mr . 21 President, members of the Council , Mr . 22 Bresnahan indicated that the Administrative 23 Law Judge had accepted the testimony of Nancy 24 Osterman about the birth certificate. • 25 Actually, the reverse is the case. The CHRISTOPHER L. COLUMBUS COURT REPORTERS � 32 1 Administrative Law Judge on pages 7 and 8 of 2 her memo indicates the Administrative Law 3 Judge rejects Ms . Osterman� s testimony and 4 concludes that Ms. Osterman asked for 5 identification, requested that identification 6 be produced in the future but didn' t insist 7 upon it at the time of the audition relying 8 instead upon TDM' S lies . Second, Mr. 9 Bresnahan I don' t think was intending to 10 mislead you but suggested that somehow the 11 Administrative Law Judge found the report of � 12 Officer Rogers who described the activities, 13 somehow found his report wanting. The actual 14 case is that his report is pretty much 15 verbatim her Finding of Fact No. 14 . As to 16 bad moral character, it' s true we didn' t bring 17 in any evidence -- any witnesses that said Mr. 18 Fan is a bad person. Our position that hiring 19 a 13-year-old to engage in sexual performances 20 under the circumstances under which that was 21 done is an act that indicates that he lacks 22 the fitness and the character to be in this -- 23 in this business . Finally, Mr . Bresnahan 24 indicated that your scope of review is limited � 25 to something relating clearly erroneous CHRISTOPHER L. COLUMBUS COURT REPORTERS � 33 1 testimony. He' s referring to a resolution 2 which has been superseded. The resolution he 3 refers to is the resolution that was adopted 4 by the Council on March 31st before we had in 5 place Mr . Long� s ordinances setting out and 6 flushing out all of the procedures . The 7 resolution simply expresses the intent of the 8 Council as to how it' s going to proceed with 9 these things. That was overruled and 10 superseded by the ordinance which has the 11 force and effect of law. Ordinance No. 88 . 577 � 12 which was adopted by the Council on May 17 . 13 And that does not limit your scope of review. 14 It permits you to consider the evidence 15 contained in the record, the Hearing 16 Examiner� s recommended findings of fact and 17 conclusions and shall not consider any factual 18 testimony not previously submitted to and 19 considered by the Hearing Examiner . That' s 20 all I have . 21 MR. SCHEIBEL: We' ll hear Mr . Bresnahan' s 22 response and then we' ll break. 23 MR. BRESNAHAN: I will not respond to Mr. 24 -- the memoranda is of itself but the � 25 testimony was that a birth certificate was CHRISTOPHER L. COLUMBUS COURT REPORTERS . 34 1 presented but the memorandum indicates that 2 she either believed that or didn� t believe it. 3 But as to the Council resolution, to my 4 knowledge that Council resolution as to 5 whether or not that when the new ordinance was 6 passed, as to that, I think that added to this 7 resolution rather than superseded this 8 resolution. And that' s up to the Council to 9 make that determination. 10 MR. SCHEIBEL: I think we can have some 11 discussion of that this afternoon and maybe be • 12 advised by our a�torney for us on that issue . 13 My preference would be we just not even get 14 into any questions, break at this time, and 15 reconvene, coming back at a quarter after . 16 (Brief discussion among Council members. ) 17 MR. LONG: Mr. President, just a point, I 18 think it would be important to remind us that 19 under the ex parte rule we ' re not supposed to 20 discuss this outside chanmbers during the -- 21 ( Inaudible . ) 22 (Brief discussion among Council members. ) 23 MR. SCHEIBEL: Okay. We will recess 24 until 1 : 30 . � 25 (Recess taken. ) CHRISTOPHER L. COLUMBUS COURT REPORTERS � 35 1 MR. SCHEIBEL: -- Reconvene -- 2 ( Inaudible ) . We've heard the statements from 3 the two sides. And what we' ll do next to 4 proceed is question any of the statements or 5 facts that have been presented. Tom was, and 6 then Bill? 7 MR. DIMOND: Mr. President, I would like 8 to get a motion on the floor and follow with 9 some questions and points. So at this point, 10 if that would be proper, I would put a motion 11 on the floor. � 12 MR. LONG: I would rather get some questions 13 first. 14 MR. SCHEIBEL: Yes. I think according to 15 the proceedings -- 16 MR. LONG: Yes . 17 MR. DIMOND: Okay. 18 MR. SCHEIBEL: -- before we have any 19 motion, we should have the opportunity to 20 question, clarify the facts in our own minds 21 and any statements that were made by the 22 representatives . 23 MR. DIMOND: Okay. Let me follow up 24 then. Mr . Bresnahan, in your testimony you � 25 had stated that there' s not one iota of CHRISTOPHER L. COLUMBUS COURT REPORTERS � 36 1 testimony that the owner has bad moral 2 character and that that display would -- that 3 was put on was not sexual in nature. And I 4 guess I would like to ask you, first of all , 5 is this the same individual that owns or 6 operates 7th Street Trolley? 7 MR. BRESNAHAN: That' s true . $ MR. DIMOND: Okay. Well , I haven�t -- I 9 was not at the Belmont when this incident 10 happened nor have I ever had the opportunity 11 to be in that facility, but I guess as an � 12 indication, even though it' s not this 13 facility, but as an indication of how it 14 operates, I was recently out with the east 15 patrol and one of the stops we took was to the 16 other facility operated by Mr. Fan, the 7th 17 Street Trolley. And I tell you, anybody who 18 thinks that the performance that was going on 19 there has anything to do with dancing, there' s 20 no correlation at all . And, as a matter of 21 fact, I think that using that, I think that is 22 a case, although not the same establishment, I 23 think indicates the lack of proper character 24 in operation of a facility that has been � 25 documented I think quite well at this other CHRISTOPHER L. COLUMBUS COURT REPORTERS � 37 1 facility. And i think that that really makes 2 the case that as far as the testimony we are 3 to believe, and we've got some conflicting 4 testimony, that I think that certainly makes 5 the case that anyone, any reasonable person 6 would assume that -- that the testimony that 7 is provided us is probably accurate and it 8 certainly is a similar kind of operation that 9 is operated at another one of their 10 facilities. 11 MR. BRESNAHAN: Let me respond to that, � 12 Mr . Dimond, that the constitutional issue that 13 you are trying to resolve here at this 14 hearing, this hearing body cannot resolve that 15 issue . That is a judicial issue that has to 16 be resolved by the courts . Under our 17 constitution as to whether or not dancing 18 itself, whether you call it nude dancing or 19 freedom of expression, is a constitutional 20 issue. And this board here does not have the 21 right to make that determination. That 22 determination can only be made by a judicial 23 body. 24 MR. BYRNE: Mr. Bresnahan, I -- � 25 MS. SEYMOUR: Could i follow-up, please? CHRISTOPHER L. COLUMBUS COURT REPORTERS � 38 1 And furthermore, with all due respect to Mr. 2 Dimond, the issues before this Council today, 3 you cannot consider additional evidence or 4 your own view, all that is before you -- or 5 your own opinion as to that view. The only 6 thing before you today is the evidence that 7 was presented to the Administrative Law Judge 8 during the adverse hearing. And there was no 9 evidence presented with regard -- by the City 10 with regard to the content of any other dance 11 by any other dancer to the Administrative Law � 12 Judge. And so i would urge the Council not to 13 go beyond the testimony that was presented at 14 the hearing. And I therefore strenuously 15 object to the consideration and the comments 16 made by Mr . Dimond. 17 MR. SCHEIBEL: Okay. I think it is 18 correct that we should direct ourselves only 19 to the finding of facts and the information 20 that is before us and cannot at this time 21 bring in any other new facts to the 22 proceedings today. I think Bill was next. 23 MR. BYRNE: I would like to respond. Mr. 24 President, Mr. Wilson and Mr . Dimond, while it � 25 is correct that whether or not a particular CHRISTOPHER L. COLUMBUS COURT REPORTERS � 39 1 type of dancing is protected by the First 2 Amendment may be ultimately resolved by the 3 courts, in the context of this hearing you 4 have the obligation and the duty to determine 5 whether or not under Minnesota Statute 6 617 . 246, which is the law which prohibits 7 people from hiring minors to engage in sexual 8 performances, whether or not that act has 9 occurred. And you do have in the record 10 before you in this case, you need not refer to 11 other situations with regard to the 7th Street � 12 Trolley, you do have in this case sufficient 13 evidence of the type of activity that was done 14 in Finding of Fact No. 14 which relates to the 15 definition of sexual performance and sexual 16 conduct in the statute . And it would be our 17 position that you have ample correlation 18 between those two to make the proper finding 19 and conclusion. 20 MR. SCHEIBEL; I think, Bill -- 21 MR. WILSON: A question to Mr . Byrne. 22 During your testimony, you indicated -- i 'm 23 trying to clarify this point. My 24 understanding is that the underaged dancer, � 25 TDM, was hired by Mr . Fan directly and that CHRISTOPHER L. COLUMBUS COURT REPORTERS � 40 1 TDM did dance for some six weeks for Mr . Fan 2 before a contract was signed between the 3 13-year-old dancer, TDM, and the Dancing 4 Angels Studio? Is that -- 5 MR. BYRNE: That' s correct. The 6 testimony was that he was present, Nancy 7 Osterman whose title was the manager of 8 Dancing Angels, and the girl , there may have 9 been other bar employees, too, but at least 10 those three were there . At that time David 11 Fan was president of Dancing Angels, Osterman • 12 was the manager . The minor danced for 13 somewhere from six to eight weeks, at least 14 until January 5th before she signed that 15 agreement. The agreement was a form 16 agreement. They had apparently stacks of them 17 that had been signed several years previous by 18 Mr. Fan. After signing that agreement it was 19 yet another period of about four weeks of 20 additional dancing until February 8th when the 21 officers arrested her on the truant or the 22 juvenile warrant. 23 MR. WILSON: I would like to follow-up on 24 that, too. And then -- and Mr . Fan had a -- � 25 had an interest, a business interest in the CHRISTOPHER L. COLUMBUS COURT REPORTERS � 41 1 Dancing Angels Studio at the time he hired the 2 13-year-old dancer? 3 MR. BYRNE: This is correct. He was 4 president of that corporation. 5 MR. WILSON: I see. 6 MR. BYRNE: I don' t know that it was a 7 separate business premises, it was just a 8 corporation that he used to hire and pay for 9 those people . 10 MR. SCHEIBEL: Okay. Bob? 11 MR. LONG: Mr. President, I focus my � 12 initial inquiry on the -- what would appear to 13 be a possible felony offense . And I 'm just 14 thinking that the hiring of the minor or 15 permitting the minor to dance seems to be a 16 crucial one because I think under our 17 guidelines if there is a finding by the 18 Council that there was a felony violation, 19 that would be the basis at least for 20 revocation, so i 'm going to focus on that 21 first. I have some questions. The statute 22 617 .246 is a felony. And I want to make sure 23 that we kind of apply the provisions of that 24 and see if we've covered them, because I think � 25 the comments that Mr. Bresnahan made were CHRISTOPHER L. COLUMBUS COURT REPORTERS � 42 1 correct, that we ought to be looking at the 2 facts and trying to find out if there' s legal 3 error . And right now I 'm -- it seems to me 4 that there' s some good arguments to be made 5 that that statute may in fact have been 6 violated. The statute says as I understand 7 from reading the ALJ' s opinion on item 7 of 8 the conclusions, that it provides that, "It' s 9 unlawful for a person to employ or permit a 10 minor to engage in any sexual performance if il the person knows or has reason to know the 12 conduct intended is a sexual performance, " � 13 which I guess raises a couple of questions. 14 First of all , did the person either hire or 15 permit the minor, and then, secondly, was the 16 performance a sexual performance . And a 17 couple of questions come up. And maybe Jane 18 can help me with this . Jane, under that 19 statute and reading Phil Byrne' s memorandum on 20 page 10 , it says under the statute, "The 21 consent of the minor and mistake as to age are 22 not defenses, " so therefore anything that she 23 may have said or shown or anything she did 24 would ultimately be absolute strict liability � 25 on the owner of the club? Is that -- would CHRISTOPHER L. COLUMBUS COURT REPORTERS � 43 1 that be correct? 2 MS . MCPEAK: Subdivision 5 of that same 3 Statute 617 .246 says, and I �11 just read it to 4 you very briefly because it is very brief, 5 "Neither consent to sexual performance by a 6 minor or the minor� s parent, guardian or 7 custodian, nor mistake as to the minor' s age 8 is a defense to a charge of violation of this 9 section. " So you are correct in that respect. 10 The issue is obviously the one of whether or 11 not there was a sexual performance and if the � 12 person had reason to know or know that the 13 conduct intended was -- 14 MR. LONG: Okay. 15 MS . McPEAK: -- of that nature . 16 MR. LONG: And then this question of 17 employing or permitting a minor, it seems ta 18 me that even though the finding may be that 19 they did not -- although that' s arguable, it 20 seems to me, whether or not they employed the 21 person or not, given the fact that Mr . Fan 22 actually hired the person, permitting the 23 person to dance when they have reason to know 24 that the conduct intended sexual performances, � 25 it seems to me that the argument is -- that CHRISTOPHER L. COLUMBUS COURT REPORTERS � 44 1 relates to whether they would have a reason to 2 know the person was going to do sexual 3 dancing. That' s the part of the statute that 4 kicks in there . That once we establish 5 there' s a minor, and in fact it is a minor, 6 then reason to know would be if they were -- 7 if this licensee had allowed people to come in 8 there and dance, they would have had the 9 reason to know that they were going to be 10 dancing sexually of some kind? 11 MS. McPEAK: That' s correct. Reason to 12 know refers not to the age issue but to the • 13 sexual performance issue. 14 MR. LONG: Okay. Okay. So then for me 15 that leaves the question of whether there' s 16 been a finding that this is sexual performance 17 on the facts. And i guess what I 'm reading is 18 on page, whatever it is, item -- I guess it 19 was Fact 14 of the findings, the ALJ 20 enumerates a number of activities which -- 21 such as fondling her breasts and genital area 22 and spreading her legs in such a manner as to 23 expose her inner vaginal area, as I read the 24 statute on sexual performance which is � 25 highlighted in Mr . Byrne' s memorandum, and it CHRISTOPHER L. COLUMBUS COURT REPORTERS � 45 1 looks to me as though those items are 2 specifically addressed as being covered as 3 sexual performance? 4 MS. MCPEAK: Where are you referring in 5 Mr . Byrne' s memorandum? 6 MR. LONG: Mr . Byrne' s memorandum -- 7 MS. RETTMAN: His exceptions memorandum. 8 MR. LONG: Yes. I think on page 11 of 9 his memo he says that sexual performance 10 defined in Minn Stat -- well , maybe I 'm wrong. 11 Someplace there was a description of what the � 12 statute covered. -- 13 MR. SCHEIBEL: Well, maybe maybe we 14 could ask Mr . Byrne to respond to your 15 statement -- 16 MR. LONG: Oh, here . I 'm sorry. Here it 17 is. It refers to act of sexual intercourse, 18 lewd exhibition of -- on pag� 10 . "The sexual 19 performance can include a number of things as 20 defined. in this case it refers to acts of 21 simulated sexual intercourse, lewd exhibition 22 of the genitals and contact with female 23 breasts . " So I guess my question is would it 24 be our -- not Mr. Byrne' s opinion but our own � 25 City Attorney' s opinion that the facts as CHRISTOPHER L. COLUMBUS COURT REPORTERS � 46 1 found by the ALJ in Item 14 such as touching 2 the breasts and genital area and exposing 3 inner vaginal would fall within the definition 4 of sexual performance as outlined, I guess it 5 must be in Minn Stat 617 . 246? 6 MS . MCPEAK: I think that' s going to be 7 -- have to be a determination that' s made by 8 this Council and not by the City Attorney' s 9 office . 10 MR. LONG: Okay. 11 MR. BYRNE: Mr. President, might I -- � 12 MR. SCHEIBEL: Okay. I � 11 have Mr . Byrne 13 and Ms . Seymour, have you both respond. 14 MR. BYRNE: I would just point out that 15 the Administrative Law Judge on page 8 of the 16 memo attached to her report indicates, "There 17 is a preponderance of evidence reflecting that 18 the licensee through its agents did permit the 19 minor to engage in a sexual performance. " And 20 then there' s language around it which explains 21 her reasoning. I think there' s probably a 22 typo or a mistake in her Conclusion of Law No. 23 8 -- 24 MR. LONG: That' s what i was going to � 25 ask. CHRISTOPHER L. COLUMBUS COURT REPORTERS � 47 1 MR. BYRNE: Where she said that we did 2 not sustain our burden of proving that TDM was 3 employed for that purpose and that it should 4 say but has sustained its burden of proving 5 that it was permitted. Otherwise, there' s an 6 inconsistency between -- 7 MR. LONG: Right. 8 MR. BYRNE: -- what she was explaining 9 and her reasoning. And i -- 10 MR. LONG: That was my question because I 11 read that same language, that we -- I was � 12 reading it that the "not" was inappropriately 13 placed there in Item 8 of her conclusions, 14 which suggests to me that she has made a 15 finding that we met the burden of showing that 16 licensee permitted a minor to engage in a 17 sexual performance. And if in fact that' s 18 true, if that "not" is misplaced there, and I 19 -- it must be or the whole sentence wouldn' t 20 make any sense, then in fact she� s made a 21 conclusion of law that, at least as far as I 22 can read the statute, that there' s a violation 23 of 617 .246 , and then to come along later and 24 say there wasn' t a violation doesn' t make any � 25 sense . So that' s why i �m confused about it. CHRISTOPHER L. COLUMBUS COURT REPORTERS � 48 1 It seems to me that Item 8 in her conclusions 2 is a conclusion of law that they did allow the 3 underaged person to -- they permitted her to 4 engage in a sexual performance . And that to 5 me meets all the elements of the statute . So 6 that' s what I need addressed. But right now 7 I 'm assuming that that' s all very clear . The 8 facts are there that the issue -- she' s made a 9 finding and then if you apply it to the 10 statute, there has been a finding. And it 11 seems to me there' s a legal error in her not � 12 finding that there was a violation, or at 13 least in terms of maybe not a criminal 14 violation but in terms of a civil violation. 15 That' s our -- that' s our case before us. But 16 if I 'm wrong on that -- 17 MR. SCHEIBEL: Yes. Ms . Seymour wanted 18 to respond and Ms. McPeak might want to 19 respond. 20 MS . SEYMOUR: i would like to go back to 21 the basics and try to start from the beginning 22 of Mr . Long� s comments. First of all , the 23 fact that the statute says that mistake as to 24 age is in our opinion not sufficient, the � 25 United States Supreme Court has said in New CHRISTOPHER L. COLUMBUS COURT REPORTERS . 49 1 York versus Ferber and in Smith versus 2 California that the element of intent both as 3 to age and as to content of dance has to be in 4 that type of crime, otherwise it has, and I 5 quote, "A tendency to inhibit constitutionally 6 protected expression. " So intent has to be an 7 element. Secondly, the finding or the 8 conclusion of law is that Dancing Angels, 9 Inc . , not the licensee, employed the minor who 10 lied about her age in order to obtain 11 employment. Mr. Fan did not hire the dancer. � 12 That is a mistake. The dancer was hired by 13 Dancing Angels through and by Ms . Osterman. 14 In the transcript at page 241 Ms . Osterman 15 testifies, "Are you the person who interviews 16 all dancers?" Answer : "Yes. " "And hires all 17 dancers?" Answer: "Yes . " And then again at 18 259, "But during the time that you were 19 manager, were you doing all the hiring of the 20 girls basically?" Answer : "Yes . " There is no 21 evidence that Mr. Fan talked to TDM during her 22 audition. In fact the evidence is to the 23 contrary. Ms. Osterman arranged the audition. 24 She' s the one who asked the age and asked for � 25 the birth certificate . Ms . Osterman was the CHRISTOPHER L. COLUMBUS COURT REPORTERS � 50 1 one who was present when she signed the 2 contract. Okay. Next, the statute said, "Had 3 reason to know or knew that it was a sexual 4 performance . " Okay. First off, and I would 5 like to reiterate what Mr. Bresnahan said, to 6 determine whether or not something, some dance 7 is outside of the protection afforded by the 8 First Amendment of the United States 9 Constitution and Article 1 , Section 3 of the 10 Minnesota Constitution can only be determined 11 by a court. Okay? This tribunal doesn' t have � 12 jurisdiction to make that determination. What 13 I think you should be looking at is, "Had 14 reason to know or knew. " Now the 15 Administrative Law Judge has concluded that 16 she was not hired for the purpose of a sexual 17 performance. Now let' s look at whether or not 18 she was permitted, if there' s enough evidence 19 to sustain whether she was permitted to engage 20 in a sexual performance and if they had reason 21 to know it or knew it. If you read the 22 transcript and you look through the findings 23 and conclusions, the Dancing Angels had rules 24 and regulations, they had -- had in the • 25 contracts that they were to comply with the CHRISTOPHER L. COLUMBUS COURT REPORTERS � 51 1 ordinances and the statutes with regard to the 2 type of dancing. They were instructed to that 3 end. So there was -- and the testimony is, 4 and it is uncontroverted in the transcript, 5 that TDM had -- that Nancy Osterman had never 6 had had trouble with her like that before and 7 she didn't dance that way that night. There 8 is no other testimony that she had danced that 9 way before . And the only testimony is 10 contained in Officer Rogers' report that she 11 did. But, even so, there is no reason to -- � 12 there is no testimony to show that Mr. Fan had 13 any reason to know, just assuming for the sake 14 of argument that she did dance in that manner, 15 or that he knew. There is a mistake in the 16 findings that Mr. Fan was present the night 17 that she was arrested. There is no testimony 18 in the record that he was present the night 19 that TDM was arrested. In fact, the evidence 20 is -- the only evidence in the record is to 21 the contrary, that he was not there that 22 night. So even under the statute, he had no 23 reason to know and he didn� t know that she had 24 engaged in a sexual performance and therefore � 25 could not have permitted him -- her to dance CHRISTOPHER L. COLUMBUS COURT REPORTERS � 52 1 in that manner. I think -- 2 MR. LONG: Can i just ask her to respond 3 to one question and get a follow-up on that? 4 I guess I �m not clear on your argument about 5 we don� t have jurisdiction. This is really a 6 civil case . I guess it' s a licensing matter 7 so i guess I think we must have jurisdiction 8 or we wouldn� t be sitting here . We' re trying 9 to apply a statute . But let me ask you, how 10 do you square what you just said then with 11 what I deem to be at least a conclusion of law � 12 by the ALJ that we' re reviewing which, and I 13 guess I have to say there' s a typo in that 14 sentence, that the City has sustained its 15 burden of proving that the licensee permitted 16 a minor to engage in a sexual performance? 17 MS . SEYMOUR: The "but" could just as 18 well be an "and. " She is making in those 12 19 lines on page 8 some type of inference on 20 circumstantial evidence when there is direct 21 evidence to the contrary. 22 MR. LONG: Well, I guess the point is 23 that the reason it seems to make sense that 24 the sexual performance issue was a major � 25 discussion is that she spends the better part CHRISTOPHER L. COLUMBUS COURT REPORTERS � 53 1 of paragraph 14 discussing very explicit 2 sexual behavior which when you apply the terms 3 of the statute seems to then fit within the 4 meaning of sexual performance as I read it. 5 MS. SEYMOUR: what she did, at least what 6 I can discern is that she reserved the 7 constitutional issues because she recognized 8 that she did not have the authority to deal 9 with the constitutionality of the underlying 10 statute and so she assumed that it was 11 constitutional and preserved our right if it � 12 is necessary to take it up on appeal . 13 MR. LONG: It seems to me the question -- 14 this whole question of constitutionality is 15 kind of misplaced. We' re not trying to punish 16 somebody for engaging in first expression -- 17 First Amendment freedoms of expression, we' re 18 punishing somebody for allowing a minor to 19 engage in some kind of sexual performance . 20 That' s a completely different issue than the 21 First Amendment issue that you' re raising. So 22 from my perspective the fact that the Court 23 makes, the ALJ makes specific findings as to 24 sexual conduct, I mean I can' t -- I mean it � 25 couldn� t be clearer than that, that the CHRISTOPHER L. COLUMBUS COURT REPORTERS � 54 1 maneuver was accompanied by the touching and 2 fondling of the breasts and genital area. 3 That' s a very specific finding, as well as 4 spreading legs, you know, in a manner to 5 expose her inner vaginal area. If you read 6 the statute describing sexual performance, and 7 you may want to strike down the statute if you 8 think it' s inappropriate, but the statute, and 9 that' s what we' re left with trying to 10 interpret, says that those types of conducts 11 are specifically -- specifically falls within � 12 the definition of sexual performance. So 13 we' re left with -- 14 MS . SEYMOUR: I -- 15 MR. SCHEIBEL: Before you respond, I 16 think this is a good point to remind us of 17 some instructions we received prior . It' s not 18 our job to convince any one of the 19 attorneys -- 20 MR. LONG: Right. 21 MR. SCHEIBEL: -- that they' re right or 22 they' re wrong or how to read things . Our 23 questions should really be to clarify so that 24 we come to the conclusions. At the end, you � 25 know, we can base our conclusions on the facts CHRISTOPHER L. COLUMBUS COURT REPORTERS • 55 1 and the answers that we had and not try and 2 get either one of the parties to say yes to 3 one of the questions . 4 MR. LONG: Well , Mr. President, I agree. 5 The only reason I 'm doing this is I -- you 6 know, maybe I 'm falling into my lawyer' s mode, 7 but I 'm trying to give the attorneys the 8 thinking of the Judge in this case and where 9 I �m heading so they can respond because if I 10 don�t get their response and I base my 11 decision on my analysis right now, I want to � 12 make sure I get their contradictions or 13 rebuttal . 14 MR. SCHEIBEL: Right. And it is a fine 15 line between making a statement and what you 16 think, but I think we' re better off going to 17 clarify what are the facts and what' s said -- 18 MR. LONG: Right. 19 MR. SCHEIBEL: -- and then draw our 20 conclusions . Ms. Seymour, and then -- 21 MS. SEYMOUR: What we' re really trying to 22 get at, Council Member Long, is that Mr. Fan 23 wasn' t there and there' s not a scintilla of 24 evidence to show that he was . In fact, the • 25 evidence shows that he was not there. And CHRISTOPHER L. COLUMBUS COURT REPORTERS � 56 1 there is no evidence that he had any reason to 2 know or knew that she was engaging in a, 3 quote-unquote, alleged sexual performance. 4 And there is no testimony in the 5 administrative adverse hearing to show that 6 any other dancer ever danced in some way that 7 constituted at any other time. And "that had 8 reason to know or knew" is an element under 9 the statute that the City Attorney read, even 10 not considering the constitutional 11 implications of the matter . � 12 MR. SCHEIBEL: Mr . Byrne and then Kiki 13 had some questions and then Janice . 14 MR. BYRNE: Not to belabor the point 15 unduly but it' s, of course, our position that 16 when you have a situation where somebody is 17 dancing for a period of 10 to 12 weeks in an 18 establishment, where there' s testimony that 19 the owner is there, and there is testimony the 20 owner is there the majority of the time, five 21 to six and sometimes seven days a week , and 22 when you walk into a place on a given occasion 23 and you observe something and there' s no other 24 evidence of any kind, you can draw an � 25 inference that that is what has been going on CHRISTOPHER L. COLUMBUS COURT REPORTERS � 57 1 there in that establishment on a consistent 2 basis . Each party at these hearings can 3 introduce evidence . It' s as well to say, you 4 know, why didn' t we bring in evidence of other 5 times when other dancers or this dancer did 6 that. There was no evidence presented by 7 their side either to say that on all other 8 days of the week they danced like nuns . As 9 far as David Fan being involved in the hiring, 10 to say that his manager should take sole 11 responsibility when he' s standing there at the � 12 time and is both president of the shell 13 corporation which hired her and as the license 14 holder and ask no questions, to argue that 15 somehow it' s not his act, it' s not his deed, 16 simply ignores evidence which I think you can 17 draw inferences from. 18 MR. SCHEIBEL: Yes. I think instead of 19 going back and forth, let me say at the end 20 there will be an opportunity for both Mr. 21 Byrne and Mr . Bresnahan or Ms . Seymour to 22 summarize and give a final statement. So 23 throughout this discussion if something isn't 24 taken up, there would be an opportunity to try � 25 and clarify that. Kiki was next. CHRISTOPHER L. COLUMBUS COURT REPORTERS � 58 1 MS. SONNEN: i had one question of our 2 attorney. And depending on that answer, then 3 I might have some questions for Mr. Byrne. 4 And my question of our attorney is am I 5 correct that in this case the City has the 6 burden of proof as opposed to the applicant? 7 MS. McPEAK: That is correct. 8 MS . SONNEN: Okay. Well, then my 9 question to Mr . Byrne is working off of your 10 August 1st memorandum about the -- about the 11 -- your alternative proposals to the findings � 12 of fact and the conclusions, Finding No. 9, 13 you say that, "This finding should be expanded 14 to indicate that there was no evidence that 15 any dancer complied with the terms of the 16 dancers agreement or that any action was taken 17 under the contract against violations thereof 18 by the dancers. " So you' re saying that there 19 was no evidence presented by the license 20 holder . Was there evidence provided by the 21 City that there was noncompliance by other 22 dancers with the agreement? 23 MR. BYRNE: Mr . President, Ms . Sonnen, 24 other than the fact that the minor herself � 25 obviously did not comply with it because she CHRISTOPHER L. COLUMBUS COURT REPORTERS � 59 1 did something which was contrary to the terms 2 of it, it is true we have the burden of proof. 3 And our burden is by a preponderance of the 4 evidence over the totality of each issue to be 5 proved. It doesn' t mean that we have to bring 6 forward every piece of evidence . It means 7 that after you get done, have we proved that 8 David Fan permitted a minor to engage in a 9 sexual performance . If the balance of the 10 evidence shows that by the slightest tipping 11 of the scales we've proved that, then we've . 12 met our burden. But in finding what the facts 13 are, you can and the Administrative Law Judge 14 can say that in assessing this preponderation 15 of the evidence that there was no evidence 16 introduced on this score, there was some 17 evidence introduced on this and so on, on a 18 broad range of things . 19 MS. SONNEN: Yes . I understand that. 20 But my question is did the City present any 21 evidence that other dancers did not comply 22 with the dancers agreement? 23 MR. BYRNE: No. 24 MS . SONNEN: Then on Finding No. 10 you � 25 state that, "This finding does not include and CHRISTOPHER L. COLUMBUS COURT REPORTERS � 60 1 should include a further finding that, one, 2 there was no showing of evidence that the 3 dancers or any of them complied with the 4 instructions and, two, that no evidence was 5 introduced to show that any dancer was ever 6 disciplined for failure to abide by the 7 instructions. " And I understand that. And 8 the question is similar to Finding No. 9 . Did 9 the City present evidence that other dancers 10 complied with or did not comply with the 11 instructions or that other dancers were � 12 disciplined? . 13 MR. BYRNE. We did to the extent that we 14 showed that the minor, TDM, did do many of 15 these things which were prohibited by the 16 signs posted in their dressing room. 17 MS . SONNEN: And she was not disciplined? 18 MR. BYRNE: Not to our knowledge. 19 MS. SONNEN: I have another question but 20 I don' t know if they want to respond -- 21 MR. SCHEIBEL: Why don' t you take another 22 one and then Janice is next. 23 MS . SONNEN: z �m looking at the finding 24 from Mr . Byrne' s memo on page 2 . And it' s a . 25 finding that -- it' s a blank finding. CHRISTOPHER L. COLUMBUS COURT REPORTERS � 61 1 MS. SEYMOUR: In which finding? 2 MS. SONNEN: "H" on page 2 . And it 3 brings up the issue of this second incident 4 regarding a 16-year-old dancer at the Belmont. 5 And my question is to Mr . Byrne . Do you still 6 believe that this finding could -- could be 7 incorporated in amendments to the findings of 8 fact? 9 MR. BYRNE: I have proposed on page 7 a 10 new finding, what I 've labeled 16 .1, in which il I refer to the fact that when the attorney for � 12 the bar was cross-examining Officer Meyer, his 13 cross-examination resulted in bringing out an 14 incident or a matter relating to another 15 underaged dancer that we had not in our 16 initial charges brought forward. And that 17 simply is not brought in for the purpose of 18 showing another offense but as corroboration 19 and additional evidence relating to the 20 probability that underaged dancers were 21 permitted to dance there and not checked for 22 identification. 23 MS. SONNEN: Okay. Well , I think that' s 24 kind of an important point, at least for me, � 25 as to whether that finding could be added in. CHRISTOPHER L. COLUMBUS COURT REPORTERS � 62 1 And I understand Mr. Byrne' s statement. And 2 if there' s any disagreement by our attorney or 3 the attorneys for the license holder, I would 4 like to hear them now. 5 MS. SEYMOUR: Well , yes, of course, we 6 disagree. First of all, the evidence and the 7 fact is she did have Minnesota ID' s . 8 MS . SONNEN: It' s -- ( Inaudible. ) 9 MS. SEYMOUR: Yes. And that' s how it got 10 confused with this issue . And I believe she 11 was fired when it was found out she -- Meyer � 12 found out, I think it was Meyer, and then she 13 was gone because she was underage . And no 14 charges were brought and no -- 15 COMMITTEE MEMBER: ( Inaudible . ) 16 MS . SEYMOUR: Yes . It' s just a different 17 thing. And no charges were brought against 18 either her or the bar . And that is in the 19 testimony. 20 MS . SONNEN: But how does that explain 21 the point that -- that the City License 22 Department is trying to make that there was 23 this laxness of hiring underage girls? How 24 could she even have been hired even if she had � 25 like a fake ID? CHRISTOPHER L. COLUMBUS COURT REPORTERS � 63 1 MS. SEYMOUR: In the first place, it 2 isn' t our burden, it' s the City' s burden. In 3 the second place, she did have proper ID. 4 Okay? That was what the confusion was in the 5 record as to -- as to, you know, who it was 6 and what she had. Okay? And it' s like when 7 Mr . Byrne was talking about the drinking and 8 having the Minnesota ID and a reasonable 9 belief, everybody believed that she had a 10 reasonable -- that it was a reasonable belief. 11 It was never an issue before the hearing. And � 12 the reason that it came out was Officer Meyer 13 brought it out. And that was just to clarify 14 what it was. There wasn� t anything ever 15 brought by the City against anybody on that. 16 MS. SONNEN: That' s all I have . 17 MR. SCHEIBEL: Okay. Janice? 18 MS . RETTMAN: Mr . Chair, I � 11 pass my 19 time because Jane is on the phone and I want 20 to ask her a question. So I will go -- let 21 someone else go before I . 22 MR. SCHEIBEL: I have a few questions . 23 Roger I think was next. 24 MR. GOSWITZ : Maybe Mr. Byrne can answer � 25 the question. When we' re talking about CHRISTOPHER L. COLUMBUS COURT REPORTERS � 64 1 illegal acts and using the phrase "on the 2 premises, " is the parking lot included in the 3 premises or just the building proper? 4 MR. BYRNE: Mr. President and Mr . 5 Goswitz, for the purpose of describing where 6 you serve �alcohol, the licensed premises is 7 the part inside. For the purpose of 8 describing where a license holder is 9 responsible for controlling his operation and 10 the incidents to his operation, in this case 11 the parking lot is part of what he' s • 12 responsible for and the activities that go on. 13 And he in fact, as the evidence showed, did 14 have control over the parking lot and was able 15 to exert that control when he wished to do so. 16 In his testimony he admitted that he had 17 responsibility and control for it. 18 MR. GOSWITZ : Thank you, Mr . Byrne . 19 MR. SCHEIBEL: Okay. Janice? 20 MS. RETTMAN: Mr . Chair, two things. 21 One, let me go back to one question i had gone 22 over and gotten the transcript on mainly 23 because I did take the time to actually read 24 the transcripts and all of the documents � 25 rather than just rely on what is here in front CHRISTOPHER L. COLUMBUS COURT REPORTERS � 65 1 of us for two reasons. One -- page 99 I want 2 -- ( Examining documents . ) --is that -- that as 3 I was reading what we have in brief, 4 specifically in terms of what Bob was getting 5 to, Mr. Long was getting to, is that on page 6 99 of the minor' s -- and I 'm not trying to 7 play lawyer here at all , I �m just trying to 8 say where I 'm coming from on the minor, is 9 that Mr . Fan -- she was being asked whether or 10 not besides -- the question was asked, "Other 11 than the time you auditioned for dancing, did � 12 David ever -- David Fan ever see you dancing 13 on any other occasion? Yes . How many times 14 would you say? I don' t know. He sits in the 15 bar and I don' t know if he' s watching me or 16 not. Would he sit in the bar on every 17 occasion that you danced? No. How many 18 times, " you know, because she would dance like 19 six times. "He works there. I don� t know. I 20 don't pay attention. " And then the question 21 was asked by Mr . Byrne, "I 'm asking how many 22 times would you have seen him2 If you dance 23 six times a week, would you see him there 24 three times a week?" And she couldn� t answer � 25 but that she did answer affirmatively that he CHRISTOPHER L. COLUMBUS COURT REPORTERS � 66 1 was there on other occasions than the time she 2 auditioned. And to me that became a very 3 important part on whether or not the liquor 4 license holder and the actual owner, the 5 51 , 000 shares I believe of Dancing Angel stock 6 which was transferred for $20 to the then 7 manager, Nancy Osterman, became a big issue 8 with me in terms of whether or not this 9 individual was indeed the hirer of the person 10 and whether or not he knew what type of dance 11 that she was doing. And so I am convinced � 12 reading the transcripts and everything that 13 was attached that he did know the type of 14 dance. Secondly, the reason why I wanted to 15 ask -- the reason why I bring that up is 16 because i believe in our legislative code, 17 Jane, and this is directly at us -- at you -- 18 it is very specific as to details, not just 19 the Minnesota Statute but also our legislative 20 code as to what is called exotic dancing 21 versus the type, what is permissible and what 22 is not permissible? Is that not correct? 23 MS. McPEAK: That' s correct. 24 MS. RETTMAN: The things cited in the -- � 25 in the testimony I believe would clearly -- CHRISTOPHER L. COLUMBUS COURT REPORTERS � 67 1 you could read them off and read our 2 legislative code, and if we want to do that, 3 we can, but clearly if you read the police 4 report and the other findings of fact, it 5 would almost mirror exactly what is not 6 permitted under our legislative code . Jane 7 can find the exact one . That' s -- but I 8 wanted to make sure . Is that correct, Jane? 9 It is in our legislative code? 10 MS . McPEAK: It is in the code . I am 11 just trying to find it ( Inaudible . ) � 12 MR. SCHEIBEL: Maybe -- 13 MS . RETTMAN: Okay. I 'm sorry. But I 14 just wanted to lay it out so that it made some 15 sense of why i was asking the question. 16 MR. SCHEIBEL: I have a few questions, if 17 I can read my writing from before . Mr. Byrne, 18 Mr . Bresnahan during his comments, and I 19 notice referred to that this was a 20 supplemental report, that the first arrest was 21 not based on the sexual underaged dancing but 22 was I believe for another warrant. What is 23 the procedure? Is this unusual to have a 24 supplemental report2 � 25 MR. BYRNE: Mr . President, in my CHRISTOPHER L. COLUMBUS COURT REPORTERS � 68 1 experience it' s not unusual . It' s also not 2 unusual to find that be the subject of attack . 3 And the question is why was it done later. If 4 it was done later simply because at the time 5 the officer didn' t see it as required to 6 support an arrest report or something else but 7 then later was told that it might serve as the 8 basis for action involving the license or 9 action involving a felony charge against the 10 owner, then he' s instructed to write up his 11 recollection of what he saw, that' s not � 12 unusual . If the claim is that somehow the 13 passage of time dimmed his memory and he 14 didn't remember what he had seen, that goes to 15 the weight of the report. But in this 16 particular case the objections, several 17 objections were made to the admissibility of 18 the report. And the Administrative Law Judge 19 did receive the report into evidence and has 20 not to my knowledge in her memorandum or her 21 findings discounted its credibility in any 22 way. 23 MR. SCHEIBEL: My second question relates 24 to the whole issue of the sexual performance � 25 in dancing that -- and I think there' s even CHRISTOPHER L. COLUMBUS COURT REPORTERS � 69 1 some comments relating to that this kind of 2 dancing takes place there at other times . Why 3 was there not an arrest previously when the 4 officers were there for this -- for TDM or, 5 for that matter, other dancers if it is a 6 violation of our ordinance? 7 MR. BYRNE: I don� t know the answer to 8 that, except to say this, that when they did 9 get the runaway warrant to go out and look for 10 this particular minor, they did arrest her 11 under that warrant as soon as they ascertained • 12 who she was. I think there were either two or 13 three sets of performances that they 14 witnessed. There would be no basis or 15 opportunity to have viewed her previous to 16 that. I guess it' s just an allocation of 17 police resources . If they had been doing an 18 investigation into sexual performances in 19 bars, perhaps we would have it. But in this 20 case what you must do is draw inferences from 21 the testimony and what took place on that one 22 event and your knowledge of the situation and 23 what' s in the transcript. And maybe you will , 24 maybe you won't, derive at the finding and the � 25 conclusion that this is what was taking place CHRISTOPHER L. COLUMBUS COURT REPORTERS � �o 1 over a longer period. 2 MR. SCHEIBEL: Correct me if I 'm wrong, 3 Mr . Byrne, but the whole ordinance relating to 4 sexual performance or dancing, because of 5 constitutional protection is oftentimes a very 6 hard, difficult kind of case to bring before a 7 court and -- am I wrong on that? 8 MR. BYRNE: I don't think it' s a 9 particularly difficult case at all, it' s just 10 whether or not it' s a wise use of resources. 11 You can have an officer go in and watch a • 12 movie or seize a magazine or watch a dancing 13 performance and write up a report and that 14 performance will be clearly obscene, clearly a 15 criminal violation and you prosecute it and 16 then the next day so what. You can' t revoke 17 their license . You can't revoke a license of 18 a theater because they've shown an obscene 19 movie, or a bookstore, you can� t put it out of 20 operation. And there would probably be 21 constitutional problems with revoking a 22 license of an establishment for permitting an 23 obscene dance . But that' s not what we' re 24 doing here. What we are doing here is saying � 25 that David Fan hired a minor under CHRISTOPHER L. COLUMBUS COURT REPORTERS � 71 1 circumstances that violate that statute and 2 that relates to his character . It doesn' t 3 involve directly charging him with something 4 that boarders on a First Amendment protected 5 area. 6 MR. SCHEIBEL: One other question, and 7 it' s -- some of the others were answered but 8 it does relate to that whole question of moral 9 character. And I would ask you to respond, 10 Mr . Byrne, and then either Mr . Bresnahan or 11 Ms . Seymour because when we come to make a • 12 decision, that seems to be one thing we should 13 look at, is that -- is the moral character. 14 And my question is i have a hard time trying 15 to sort out what' s included in the description 16 of bad moral character . And I think in your 17 remarks you stated that if someone is -- you 18 know, hires a minor for this purpose, that' s 19 bad moral character . I �m asking for maybe 20 more specifically from past court cases or 21 laws, what kind of definition should we be 22 using when we talk about moral character. And 23 I would ask both to respond. Mr. Byrne? 24 MR. BYRNE: Well , Mr. President, that' s a � 25 difficult question to respond to actually and CHRISTOPHER L. COLUMBUS COURT REPORTERS � 72 1 specifically as you ask it. In this 2 particular case I 'm quite comfortable in 3 arguing to a court, an appellate court, that 4 doing this act is misconduct which relates to 5 the licensed activity and for which you can 6 discipline this particular license holder . 7 How far the scope of that phrase would go, I 8 couldn' t -- you know, we either don� t have 9 time or l don� t have the imagination to cover 10 all of those things. Clearly if there are 11 violations of statutes which relate to the � 12 licensed activity, that would seem to me to 13 establish lack of fitness, lack of trust by 14 the licensing authority to permit that person 15 to continue in that business. I think that' s 16 what I mean by lack of moral character, the 17 lack of the fitness to engage in this 18 occupation. 19 MR. SCHEIBEL: So the answer to the 20 question is based on the findings of facts and 21 the information we have, you could argue 22 before a court that this Council would be 23 justified in taking some action that this 24 person has bad moral character? � 25 MR. BYRNE: I 've argued that before the CHRISTOPHER L. COLUMBUS COURT REPORTERS � 73 1 Administrative Law Judge and before you and 2 probably down the road, too. 3 MR. SCHEIBEL: Ms . Seymour? 4 MS . SEYMOUR: Without being too glib, Mr . 5 Byrne could argue it but I think he would 6 lose. We have presented you with probably 7 five or six briefs in the last year with 8 regard to the issue of lack of moral character 9 in the First Amendment and Article 1 , Section 10 3 context. The Federal Court has been 11 consistent in saying that basing a revocation � 12 or some -- that type of punishment on the 13 basis of a finding of obscenity is an 14 unconstitutional prior restraint and it would 15 be struck down. Now the fact that Mr . Byrne 16 tries to circumvent it by saying that, well , 17 we' re really not going after the sexual 18 performance aspect, we' re really hitting moral 19 character, the simple answer is you can' t do 20 indirectly what you can' t do directly, meaning 21 that you cannot take away a license, revoke a 22 license on the basis of something like that 23 and hope to have it stand up. So I would be 24 very comfortable arguing the other side . The � 25 other problem with the lack of moral CHRISTOPHER L. COLUMBUS COURT REPORTERS � 74 1 character, we've got two problems here . The 2 Council has two problems here. One is that it 3 -- and you've raised it, is that it is just 4 horribly, horribly vague and overbroad. 5 Nobody knows what it means. And the mere fact 6 that you have to ask the question proves the 7 point. The second thing is that the 8 Administrative Law Judge has made a specific, 9 I can' t remember if it' s a finding or a 10 conclusion, but the City failed in its burden 11 of proof of saying that Mr . Fan lacked good � 12 moral character . -_ 13 MR. SCHEIBEL: Bill , and then 14 MR. WILSON: I don't have a question. I 15 just -- when the question was posed about what 16 standards we use for good moral -- good moral 17 standards, I suspected the respondent would 18 say that since the question is asked, 19 therefore, you don� t know what it is. Let it 20 be clear for the record that I have a very 21 good idea and very sound opinion on what I 22 think we' re dealing with here in terms of 23 moral conduct. And I think the Council 24 collectivelly has a good idea as to what that � 25 means. And the question was raised I believe CHRISTOPHER L. COLUMBUS COURT REPORTERS � 75 1 only to seek further information but not to 2 establish a lack of information or opinion in 3 this area. 4 MR. SCHEIBEL: My question was more 5 specifically based on court findings in the 6 past, what' s their definition. 7 MR. WILSON: I do have another question. 8 MR. SCHEIBEL: Why don� t we take Bob and 9 then come back . 10 MR. WILSON: Fine . 11 MR. LONG: Mr . President, I 'm trying to � 12 narrow down the issues and I 'm still only 13 focusing on the one of several violations that 14 have been alleged here, specifically on the 15 felony. I guess I 'm feeling that we' re 16 flushing out the issue of the age and that not 17 being an offense, I think we' re flushing out 18 the issue of the sexual performance and it 19 seems to me that that' s fairly well laid out 20 in the facts . The question then becomes, I 21 think as Ms . Seymour stated, whether the 22 person, Mr . Fan or the licensee, had reason to 23 know or knew that this was going on. And 24 there' s some discrepancies between what Ms. • 25 Seymour, at least what I thought she said, and CHRISTOPHER L. COLUMBUS COURT REPORTERS � 76 1 what I see . You said that there' s no evidence 2 that Mr . Fan was present. And I read on page 3 -- and I 'm rereading Item 14 of the Findings 4 of fact. And it says David Fan was present in 5 the club on February 2nd the night that -- the 6 night that this was all -- this scene and that 7 in fact he was there at -- it' s unclear as to 8 what time it was but he was there . And then 9 the second thing that comes up is that -- now 10 I 'm rereading this again. And this whole 11 notion of the exposing, the sexual performance � 12 conduct happened on three occasions, in a 13 first song and a second song and a third song. 14 So it actually happened three different times 15 on three different songs . It' s unclear as to 16 how long a period that was. But that would 17 suggest to me -- first of all , Mr. Fan was 18 there this states, and that' s inconsistent. 19 So I would like to ask you to respond to that. 20 And then the second question I have for our 21 own attorney, Jane, is even if Mr . Fan was not 22 there at some point in time, our code says 23 that we' re going to hold licensees responsible 24 for the acts and conduct of their agents. So � 25 even if the manager was there observing these CHRISTOPHER L. COLUMBUS COURT REPORTERS � �� 1 three dances or at least would be presumed to, 2 after three dances, to know that this kind of 3 thing was going on, wouldn' t that also then 4 hold the licensee liable -- 5 COMMITTEE MEMBER: Any employee . Any 6 employee, not just -- ( Inaudible . ) 7 MR. LONG: Well , any employee . But -- 8 MR. SCHEIBEL: I think you directed a 9 question -- 10 MR. LONG: Yes . My first question is to 11 Ms. Seymour on that and the second one is to 12 Jane. � 13 MS. SEYMOUR: In the first place, we have 14 put in our exceptions an exception to the 15 finding that he was there . There is 16 absolutely no proof in the record that he was 17 there. In fact, the proof is to the contrary. 18 And I �m just trying to find it in the record 19 now. But he was not there that night. Now 20 he -- 21 MR. LONG: How did the ALJ arrive then at 22 that finding i guess is -- without having 23 read all the transcripts, you know, and 24 looking at the ALJ' s findings? � 25 MS . SEYMOUR: We' re saying that it' s CHRISTOPHER L. COLUMBUS COURT REPORTERS � �s 1 clearly erroneous. And maybe Mr . Byrne could 2 point it out to me in the record, but I 3 certainly couldn' t find it and I looked. The 4 -- what was the other -- 5 (Brief discussion among Council members. ) 6 MR. LONG: Yes. Rogers said that he was 7 there and he did not discuss the matter with 8 David Fan or ask Fan for cooperation but that 9 Fan was present. And then he went on to -- 10 MS . SEYMOUR: Where are you? 11 MR. LONG: I 'm just -- I 'm reading on � 12 Item 14 of the Findings of Fact. It says 13 that, "Officer Rogers did not discuss the 14 matter with David Fan or ask for Fan' s 15 cooperation concerning TDM but that David Fan 16 was present, " which suggests to me it must 17 have been Officer Rogers' statement someplace 18 which I haven' t -- I haven' t seen his actual 19 police report. But that suggests to me that 20 Fan must have been there and Rogers must have 21 commented on that someplace . I mean they 22 wouldn't have just put that in there without 23 there being some comment to it. 24 MS. SEYMOUR: The only testimony that I � 25 recall -- here it is . It was at page 257 of CHRISTOPHER L. COLUMBUS COURT REPORTERS � 79 1 Ms. Osterman. "Do you know -- Question: "Do 2 you know if Mr . Fan was on the premises on the 3 night that TDM got arrested?" Answer : "No, he 4 wasn' t. " Okay. I would also like to speak 5 for a moment on the other question. I might 6 be off just a little bit on what it was but 7 the -- there is no evidence in the record 8 that, and this goes to Council Member 9 Rettman' s comments, too, that TDM or anyone 10 else had ever danced in an impermissible 11 manner on any other occasion. At page 99 in � 12 the section where -- that Ms. Rettman read, 13 TDM said, and I quote, "I don' t know if he' s 14 watching me or not. " Okay? There was no 15 evidence anyplace that he ever watched her or 16 what the content of the dance was. in fact, 17 the testimony is to the contrary. When 18 questioned, Ms . Osterman said at 260, "In the 19 audition" -- Question: "In the audition that 20 you had at the time that she had auditioned 21 and at the time that Mr. Fan apparently was at 22 this, did she do any of the things described 23 in that police report? Answer, no, she didn' t 24 that night either because I was there. I • 25 never had trouble with her on that. " CHRISTOPHER L. COLUMBUS COURT REPORTER5 � 81 1 the kind of conduct that would violate the 2 law. 3 MR. BRESNAHAN: Mr . Long, may I respond 4 to this? The testimony shows that Officer 5 Lutchen says he goes to this bar two to three 6 times a night when he' s on duty. There has 7 never been an arrest, never been an arrest in 8 this bar for a violation of that ordinance. 9 MR. LONG: But I think, Mr . President, 10 Mr . Bresnahan, if I 'm not mistaken, we' re 11 dealing with -- I think there' s a distinction . 12 here between maybe what are adult dancers and 13 a minor dancer . And the statute itself, 14 felony statute, specifically is dealing with, 15 sexual conduct means any of the following if 16 the depiction involves a minor . I don' t know 17 what it means for adults. By my thought is 18 that are we running into a situation where, 19 you know, maybe Mr. Fan or whoever is running 20 this place has generally used adult dancers, 21 therefore the standard may be much more 22 difficult at that point and here now we've got 23 a minor and the standard is a higher scrutiny 24 as it is in a lot of our areas when it deals � 25 with minors. And that seems to be a CHRISTOPHER L. COLUMBUS COURT REPORTERS � 82 1 suggestion. I mean I assume if there were 2 other minors in there on a regular basis and 3 we knew it, we would be making arrests. And 4 the fact that we found this minor in there 5 engaging in this kind of performance, I 'm 6 wondering. Do you know if, in those other 7 statements of testimony, was there any 8 testimony as to whether one was a minor or 9 whether they were all adults? 10 MR. BRESNAHAN: There ' s only one position 11 -- there was one other dancer to our knowledge 12 that was stopped by a police officer there and � 13 she had improper ID. She did say that she was 14 20 years old or 21 . I don' t remember what. 15 She did have ID on her indicating her age at 16 21 . The only other dancer that' s ever been in 17 that bar that we know of that was underage is 18 TDM. The testimony indicates -- our testimony 19 indicates that she showed us a birth 20 certificate at the time she was hired that 21 showed that she was 18 years old. She had 22 another ID called an Unbank ID that -- at the 23 time of her arrest that apparently shows that 24 she was 18 . A felony charge has been brought � 25 against Mr . Fan on this particular issue. And CHRISTOPHER L. COLUMBUS COURT REPORTERS � 83 1 that matter is still pending before the 2 District Court here in Ramsey County. That 3 matter has not been tried. There has been no 4 conviction concerning that issue, as to 5 whether or not Mr . Fan violated that statute . 6 MR. LONG: But I think, Jane, my question 7 was, and maybe I � 11 renew it, is that we' re 8 dealing here with rather than a criminal 9 action, a civil action, it' s a licensing 10 matter . And if in fact the conduct that we 11 find as a Council , if we find that they were � 12 engaging in sexual performance, which I feel 13 fairly clear on, and if we find and if we 14 accept the Finding of fact here, which we' re 15 more bound to accept I think than a conclusion 16 of law possibly, that Mr . Fan was on the 17 premises that night, then we've established 18 all three of the elements and can find that 19 there was a violation. If there' s some 20 question as to whether Mr . Fan was present, 21 then in fact can we rely in a civil proceeding 22 here on the liability that then gets 23 attributed to the licensee by virtue of an 24 agent allowing this -- permitting this kind of � 25 conduct to occur? CHRISTOPHER L. COLUMBUS COURT REPORTERS • 84 1 MS . MCPEAK: You do have that provision 2 in Section 409 .14 of the code which says that, 3 "An act by the clerk, barkeeper, agent, 4 servant or employee of any licensee in 5 violation of this chapter shall be deemed the 6 act of the employer and the licensee of such 7 place, " and so on. So you do have that 8 particular provision. Whether or 9 not -- 10 MR. LONG: The chapter refers to the 11 violation of the state and local ordinances? � 12 MS . McPEAK: Any violations. 13 MR. LONG: Any violation? Okay. 14 MS. McPEAK: Yes . Any violation of law. 15 Whether or not you can use this section to 16 support a finding that the licensee knew or 17 had reason to know, quite frankly, I don�t 18 know. And what I would like to do while we' re 19 sitting here is to think about it a little bit 20 more because I think it' s -- when you phrased 21 it this time around, you phrased it a little 22 bit differently than the -- the first time I 23 thought you wanted to know if we had such a 24 kprovision. Now you've added a dimension to . 25 it. And I would like to think about that for CHRISTOPHER L. COLUMBUS COURT REPORTERS • 85 1 a few minutes before I give you any advice . 2 MR. LONG: And can I ask one other 3 question about the standard? It seems to me 4 that Mr . Bresnahan actually read from the 5 resolution. I don' t know if under the 6 resolution of the ordinance, but we are trying 7 to give great deference to the findings of 8 fact of an ALJ and essentially maybe looking 9 at whether there' s legal errors . With that 10 standard, if that' s a correct standard, then 11 are we not to give greater deference to her • 12 finding in Item 14 that David Fan was present 13 than possibly to the exceptions in this case 14 that he was not present, in simply reviewing 15 the lower court' s decision here, I mean the 16 ALJ' s decision? 17 MS . McPEAK: Z -- over the noon hour I 18 did look into the matter of the resolution of 19 March 31st and then the ordinance which was 20 passed on April 8th of -- or May 17th of 1988 . 21 I think that the ordinance does supersede the 22 resolution. And I ' ll tell you why for a 23 couple of reasons. Number one, the ordinance 24 has the force and effect of law. And a • 25 resolution is simply that, it' s an expression CHRISTOPAER L. COLUMBUS COURT REPORTERS � 86 1 of intent. I looked at the Minnesota 2 Statutes, Rules of Construction. And now 3 we' re not talking about one law which is 4 perhaps repealing an earlier law because a 5 resolution is not a law. But I think that the 6 principle applies . And what the statute says 7 and what some of the annotations in cases 8 basically say is -- and maybe I can just read 9 one because I think it pretty well expresses 10 what I found. What it says is, "while repeal 11 of a statute by implication is not ordinarily � 12 favored where a later statute accomplishes the 13 same purpose intended to be accomplished by a 14 previously enacted statute but in an obviously 15 different manner, later statute repeals and 16 supersedes the earlier statute . " It also says 17 that, "If the statute attempts to set up a 18 system, a uniform system covering a particular 19 subject, then that statute will repeal the 20 previous statute . " So I think what we do have 21 in the ordinance is a system intending to 22 cover how you proceed with these matters and I 23 think it does supersede the resolution. I 'm 24 sure there are arguments that are going to be • 25 presented by Mr. Byrne to support it and by CHRISTOPHER L. COLUMBUS COURT REPORTERS � 87 1 the licensee' s attorneys to refute it. But 2 that would be my advice to you based on very 3 brief research. 4 MR. SCHEIBEL: Bill -- ( Inaudible . ) 5 MR. WILSON: Tom, did you have some 6 questions? 7 MR. LONG: No. 8 MR. WILSON: No? I just have -- I just 9 have one quick question and I think, I don' t 10 know, unless there are a lot more questions, I 11 think we should close the public hearing and 12 discuss the motion with the Council and � 13 proceed. Who -- who paid the dancers in this 14 situation? Mr. Byrne, do you have any idea? 15 MR. BYRNE: Mr . President and Mr. Wilson, 16 in the evidence in the hearing was introduced 17 the check that the dancer had in her 18 possession when she was arrested, and that was 19 Dancing Angels, Inc. The particular check 20 that she had in her possession was signed by 21 David Fan. 22 MR. WILSON: Okay. That was a check -- 23 was that -- that was one check that she had in 24 her possession? � 25 MR. BYRNE: That' s right. For CHRISTOPHER L. COLUMBUS COURT REPORTERS � 88 1 approximately $120 , so it would be a 2 short-term, a week, two weeks or whatever the 3 time period was. And I 'm just struggling to 4 think -- I think it' s safe to say that Dancing 5 Angels had a checking account, that 6 corporation, that paid the dancers . But if -- 7 if all we had was just the one check, I think 8 you could infer from that that that was the 9 one who was paying -- 10 MR. WILSON: Dancing Angels? 11 MR. BYRNE: Right, the corporation. � 12 MR. WILSON: The corporation, and Mr. Fan 13 signed it? 14 MR. BYRNE: Yes. 15 MR. WILSON: Was that before or after the 16 contract was entered into between TDM and 17 Dancing Angels? Can you remember? 18 MR. BYRNE: I would have to look at the 19 exhibit but I am sure it must be after the 20 contract was signed. 21 MR. WILSON: Okay. So Mr . Fan continued 22 to have -- was continuing signing of the 23 checks or signatures still appeared on the 24 checks after this contract was entered into � 25 between TDM and Dancing Angels? CHRISTOPHER L. COLUMBUS COURT REPORTERS i89 1 MR. BYRNE: Yes . I believe the transfer 2 of the ownership interest in Dancing Angels 3 occurred sometime in March. 4 MR. WILSON: Okay. I don� t have any 5 other further questions of the attorneys . 6 MR. SCHEIBEL: Okay. Janice? 7 MS. RETTMAN: I have two of Mr . Byrne. 8 Number one, did you find that reference point 9 of where Mr . Fan -- I think Bob had asked for 10 that. And, secondly, there is a place in the 11 transcript, and I think you have it, where the . 12 minor was asked a question about who she 13 perceived her boss to be and who and she 14 clearly stated that Mr . Fan was the big boss. 15 I think your question to her directly was who 16 was the big boss or -- paraphrasing it. And 17 she said David Fan was her� s. Am i recalling 18 that correctly? 19 MR. BYRNE: Mr. President, Ms . Rettman, 20 yes, you are. i think the evidence is clear 21 throughout. 2 asked a number of employees who 22 the real boss was and who called the shots, 23 and it was Mr. Fan. i -- in responding to Mr. 24 Long' s question as to where that was, the � 25 closest I can come in just skimming through it CHRISTOPHER L. COLUMBUS COURT REPORTERS • 90 1 is on page 138 of the transcript. Officer 2 Rogers' testimony I think will be ambiguous. 3 The question was whether or not the members of 4 the vice unit in trying to locate the minor 5 dancer had asked for Mr . Fan' s help or 6 cooperation. And the question was, "Did you 7 ask Mr . Fan? I don' t know if Northwest Team 8 was aware of it. " Question: "But the vice 9 squad was aware of it?" Answer: "Yes. " 10 Question: "And to your knowledge, you didn' t 11 do it, you didn't ask Mr. Fan for his • 12 cooperation, did you?" Answer : "No. I went 13 in there looking for the young lady, " and so 14 on and so forth. It depends on whether or 15 not -- 16 MR. LONG: Mr . Byrne, who was asking the 17 question? Counsel for Mr . Fan? 18 MR. BYRNE: That was Mr . Bresnahan. 19 MR. LONG: Does that suggest that Mr. Fan 20 was actually on the premises, if they were 21 asking that? I mean -- 22 MR. BYRNE: That' s the ambiguity -- 23 (Brief discussion among Council members. ) 24 MS. SEYMOUR: I would submit that it does • 25 not because obviously the vice squad knew CHRISTOPHER L. COLUMBUS COURT REPORTERS . 91 1 about her and the warrants beforehand. That 2 was the intent of the questions and that was 3 how they were asked, not whether or not he was 4 there . That had -- that question was answered 5 later . 6 (Brief discussion among Council members. ) 7 MR. SCHEIBEL: Well , it' s not a public 8 hearing. What I ' ll do at some point -- Tom 9 has some questions. We should finish the 10 questions, take a break, allow them to put 11 together their final statements. And can you � 12 do that within -- keep the statements to 13 within five minutes, your summaries? And then 14 we can have a motion discussion. 15 MS. RETTMAN: Do we need a summary? 16 MR. SCHEIBEL: Well , they may not need 17 that much time but I would like to -- 18 MS . RETTMAN: Yes, but do we need a 19 summary? 20 MS . SONNEN: I would like -- 21 MR. BYRNE: I 've already given you my 22 best shot. 23 (Brief discussion among Council members. ) 24 MS. SEYMOUR: I don' t really care if we � 25 have a summary but there are a couple of CHRISTOPHER L. COLUMBUS COURT REPORTERS � 92 1 things that I would like to respond to that 2 I 've held off on, awaiting the possibility -- 3 ( Inaudible . ) 4 MR. SCHEIBEL: See, that' s why I -- I 5 just thought it would be better for them to 6 make the points they want to make -- 7 COMMITTEE MEMBER: Right. They have 8 another shot. 9 MR. DIMOND: I was going to move to close 10 the hearing and make a motion but I ' ll wait -- 11 MR. SCHEIBEL: Yes . It' s not a public � 12 hearing obviously so why don' t we just, it' s 13 about time for a break anyway, take a 14 five-minute break, have their concluding 15 remarks -- 16 MS . RETTMAN: Would it be correct to 17 assume that we might get out of here by 3 : 30 18 or 4 : 00? 19 MR. SCHEIBEL: Yes . 20 MS. SONNEN: Could I -- I hate to delay 21 it but I did have one other question. Would 22 that be all right? 23 MR. SCHEIBEL: Yes . 24 (Brief discussion among Council members. ) � 25 MS. SONNEN: This regards Conclusion No. CHRISTOPHER L. COLUMBUS COURT REPORTERS � 93 1 5 regarding the drug incidents. Could I hear 2 a little bit more from Mr . Byrne as to why the 3 drug possession of an employee indicates that 4 the licensee' s -- that it shows the licensee' s 5 failure to maintain order? I can . . . 6 MR. BYRNE: Well , Mr. President, Ms. 7 Rettman, and Ms. Sonnen, it -- it helps to 8 show in my view that there' s an attitude or a 9 tenor or a tone about the management of the 10 bar which was very lax in a number of ways, 11 lax in their policing of prostitution in the � 12 establishment in the parking lot, activities 13 which they had to know were occurring, lax in 14 their policing of activities of their own 15 employees . I think it' s a fair inference from 16 the testimony that there was in this 17 particular incident a contact made with this 18 individual in this car in the parking lot. 19 And he' s supposed to be a parking lot employee 20 watching the parking lot. That contact was 21 made and the person left and the officer 22 approached and another party was then in the 23 car, that there is, maybe it' s strong, too 24 much of an inference, but i think it' s . 25 possible to draw it, that you can infer that CHRISTOPHER L. COLUMBUS COURT REPORTERS • 94 1 there was drug trafficking going on there 2 right in the parking lot behind the building 3 by their own employees. It seems to me a 4 well-run operation would not permit that sort 5 of thing or would adopt the sort of management 6 controls that would prevent that from 7 happening. The testimony is clearly that Mr. 8 Fan was in the establishment a great deal , 9 spent a lot of time there. And then to go 10 from that amount of time to this -- what seems 11 to be a very curious lack of control seems to � 12 me to indicate a permissiveness that is not 13 appropriate for this type of licensed 14 business. It' s not a major matter I would 15 grant but in the context of all of the other 16 offenses, I think it fits a pattern. 17 MS. SEYMOUR: May I respond to what Mr. 18 Byrne said in his argument on Council Member 19 Sonnen' s question? 2Q MR. SCHEIBEL: You may. 21 MS . SEYMOUR: There was -- there was no 22 testimony or evidence presented by the City 23 that anyone in the Belmont Club knew that 24 Randy Pape was out there or that he was in � 25 possession or selling drugs while it was going CHRISTOPHER L. COLUMBUS COURT REPORTERS � 95 1 on. Once they found out, he was disciplined 2 when it happened even though it wasn't his 3 stuff, but he was there, he was fired. So 4 it' s not a nonresponsiveness. They did 5 respond. In the second place, there is no 6 testimony that he was doing it during his 7 working hours. In fact, the testimony is 8 clear that it was not within his working hours 9 and it was not within his scope of employment 10 or within the field of his employment or in 11 furtherance of his master' s business as to the � 12 vicarious liability. So, you know, I don�t 13 think that this establishes any kind of a 14 basis for an inference that they were lax 15 because there was discipline once it was found 16 out. 17 MR. SCHEIBEL: Okay. Just before we 18 break, Ms . McPeak has a little further 19 response to Mr . Long' s question. 20 MS . McPEAK: I have that and I also want 21 to -- don' t want to forget Council Member 22 Rettman either . 23 COMMITTEE MEMBER: ( Inaudible . ) Will you 24 repeat the question? • 25 MS . McPEAK: Council Member Long' s CHRISTOPHER L. COLUMBUS COURT REPORTERS � 96 1 question was can the legislative code 2 provision which makes it an owner' s really 3 liability for any acts of his employees or 4 agents or so on, can that be used as evidence 5 of knowledge or reason to know for purposes of 6 the employment of a minor to perform sexual 7 performances . And I think the answer to tha� 8 is probably no because what you have within 9 the statute is very specific language . And as 10 I went back to Section 609 . 02 of the statute 11 which gives definitions for use in construing � 12 all the following criminal statutes, you do 13 have a definition of "know. " And what they 14 say is that know requires only that the actor 15 believes that the specified fact exists. And 16 I think as a part of that, reason to know is 17 that the actor has some opportunity or some 18 basis on which to believe that the specified 19 fact exists. But I don' t think that you can 20 mix legislative code in this particular 21 instance with the standard that' s set forth in 22 the statute . So I think you' re going to have 23 to stick with the statutory definitions . 24 MS. SONNEN: Could you translate that for � 25 me? I 'm sorry. CHRISTOPHER L. COLUMBUS COURT REPORTERS � 97 1 MS. McPEAK: You can' t use this as 2 evidence of knowledge or reason to k�ow. 3 MS. SONNEN: So the issue of whether 4 David Fan was there on February 2nd when the 5 alleged sexual performance occurred is a key 6 determination? Is that what you' re saying? 7 MR. LONG: I don' t know if it' s key to 8 the point -- I shouldn' t answer that and let 9 Jane answer . 10 MS. McPEAK: Well , I don� t know that I 'm 11 saying that at all . i think that -- � 12 __ MS. SONNEN: Are you saying that he has 13 ( Inaudible . ) 14 MS . McPEAK: No. What the statute says 15 is that know means that the person believes 16 that the specified fact exists . So what you 17 have to determine from the examination of 18 whatever it is you have before you, did he -- 19 could it -- is there support or is there not 20 support for the proposition that he believed 21 that sexual performances were being given by 22 the minor. 23 MR. WILSON: Okay. I 'm clear . 24 COMMITTEE MEMBER: Yes. � 25 MR. SCHEIBEL: Yes . And I think that CHRISTOPHER L. COLUMBUS COURT REPORTERS � 98 1 will be part of our discussion when a motion 2 is determined -- ( inaudible . ) 3 MS. McPEAK: Just so that doesn' t get 4 lost, I finally did find, it' s 409 . 09 of the 5 legislative code, it' s certain sexual conduct 6 prohibited. And I �m not going to read all of 7 it because it' s quite lengthy. But i did 8 check it against what was found in Finding No. 9 I think 14 of the Hearing Examiner' s report. 10 And every activity that the minor was found to 11 have engaged in is also listed as a violation � 12 or as prohibited conduct. 13 MR. WILSON. Mr. President, could I just 14 quickly follow up on that point? The postings 15 in the area, in the dressing room area and 16 otherwise in the other areas -- ( Inaudible ) -- 17 set out the kind of activities that would not 18 be accepted or that were prohibited. Do Mr. 19 Byrne, or, Jane, do you know what those 20 statements of prohibition were? 21 MS . McPEAK: I do not have that in front 22 of ine. I am sure it is in the record. 23 MR. BYRNE: I think there' s an exhibit. 24 MS . RETTMAN: There' s a picture -- � 25 MR. WILSON: Well, wait a minute . CHRISTOPHER L. COLUMBUS COURT REPORTERS � 99 1 MR. BYRNE: I 'm sorry. 2 MR. WILSON: Go right ahead, Mr . Byrne . 3 MR. BYRNE: I 'm sorry. Mr. President, 4 Mr . Wilson, I believe there' s an exhibit 5 introduced by the respondent as to a picture 6 of the instructions posted on the wall . 7 MR. WILSON: Where is the exhibit? 8 MR. BYRNE: Mr . Olson would have it back 9 there . 10 (Brief discussion among Council members . ) 11 MR. SCHEIBEL: Do you know what exhibit • 12 it is? 13 MS . McPEAK: Respondent' s Exhibit D? 14 MR. SCHEIBEL: Exhibit D? 15 COMMITTEE MEMBER: "B"? 16 MS . MCPEAK: "D. " 17 MS. RETTMAN: I remember seeing the 18 picture. 19 (Brief discussion among Council members. ) 20 COMMITTEE MEMBER: There' s a statement of 21 what the sign says but -- 22 MS . RETTMAN: Yes . There' s a statement. 23 MS. McPEAK: There is a statement in 24 Finding IVo. 10 but I don' t know if that' s a � 25 complete statement. CHRISTOPHER L. COLUMBUS COURT REPORTERS � 100 1 (Brief discussion among Council members. ) 2 MR. WILSON: And I would like to know how 3 closely do these statements of prohibition 4 proximate the requirements in the statute? 5 MS. McPEAK: I think that they only 6 repeat one of the prohibited conducts. 7 There' s basically, with respect to, I suppose 8 you would call them sexual performances, there 9 appear to be six and then one of them has four 10 parts. I would say this states -- 11 MR. WILSON: Clearly recites so any • 12 person -- I would assume any person who reads 13 that would have reason to believe what 14 constitutes a sexual performance. 15 MR. SCHEIBEL: We'l1 take just a 16 five-minute recess . 17 (Brief recess taken. ) 18 MR. SCHEIBEL: We' ll reconvene this 19 meeting. Mr . Byrne, do you have a closing 20 statement? 21 MR. BYRNE: Thank you, Mr . President, 22 just a very brief closing statement. The 23 Administrative Law Judge in her report 24 indicated whether the licensee permitted TDM, � 25 a minor, to engage in a sexual performance is CHRISTOPHER L. COLUMBUS COURT REPORTERS • 101 1 a different issue . There is a preponderance 2 of evidence reflecting that the licensee 3 through its agent did permit the minor to 4 engage in a sexual performance. The 5 Administrative Law Judge can draw inferences 6 from circumstantial evidence . The Belmont was 7 staffed according to need and some employee 8 must have noticed that TDM was engaging in a 9 sexual performance on the night in question. 10 One employee supposedly was checking dancers' 11 ID' s . TDM engaged in three separate sexual � 12 performances on that night. The licensee 13 consequently violated a statute reasonably 14 relating to the licensed activity. The 15 respondent, the licensee, has indicated that 16 Ms. Osterman said that she didn� t do it that 17 night. The previous page, the ALJ says, "Ms. 18 Osterman� s testimony lacks credibility in 19 certain particulars . For example , Ms. 20 Osterman insists that TDM was not engaging in 21 the activities described by the police on the 22 night of her arrest. " I think it would be a 23 mistake for you to put too much emphasis on 24 the sole fact of whether or not there' s � 25 something in the record to put David Fan in CHRISTOPHER L. COLUMBUS COURT REPORTERS � 102 1 the bar on February 8th and watching the 2 dancing. I think you are entitled, if you 3 wish, to draw inferences from other facts that 4 are circumstantial facts . If a person is in a 5 bar and he' s the manager and owner and he' s 6 there five, six, seven times a week, and if a 7 dancer or sexual performer is in that bar 8 doing her performances three, four, five times 9 a week over a period of up to four months, 10 three to four months, and if the one instance 11 on which we have evidence of the type of � 12 activity she was doing shows that it was in 13 fact a sexual performance, it seems to me that 14 everybody if you asked about it would say, of 15 course, we know what' s happening. Of course 16 this is the type of activity that' s going on. 17 Where you have a bar where dancers make $50 in 18 tips on an evening and dollars are thrust 19 through slots in between glass partitions, 20 what inference do you draw from that? 21 Certainly everybody who was asked about it 22 would say what is going on there is sexual 23 performances. There' s not -- you don' t have 24 to have some sort of proof positive or � 25 eyewitnesses for everything. You are entitled CHRISTOPHER L. COLUMBUS COURT REPORTERS � 103 1 to take the ordinary normal inferences from 2 the facts that you know about and draw 3 conclusions about them. That' s exactly what 4 the Administrative Law Judge did. I would ask 5 you not to use Section 409 . 09 as any basis for 6 your action. That' s not what we've alleged, 7 that's not what we've gone ahead on. What we 8 have gone ahead on is the very narrow issue of 9 David Fan hiring and permitting a 13 year old 10 to engage in sexual performances. It' s a 11 different standard, it' s a different statute � 12 and raises different issues than does 409 . 09 . 13 in conclusion, I would simply ask that you 14 consider adopting all of the amended findings 15 of fact which I have added to my exceptions 16 and circulated to you on August 1 . And that 17 would be pages 6 through 10 in the appendix to 18 the exceptions that I submitted on August 1 . 19 Thank you for your attention. 20 MR. SCHEIBEL: Ms. Seymour? 21 MS . SEYMOUR: Mr . President, members of 22 the Council , Mr . Byrne speaks of making 23 inferences out of one alleged incident. Just 24 because I would walk down a sidewalk in the � 25 City of St. Paul and trip on a raised section CHRISTOPHER L. COLUMBUS COURT REPORTERS � 104 1 of that sidewalk one time and you happen to 2 see me doesn' t mean that every time I walk 3 down that sidewalk or that anybody else walks 4 down that sidewalk you' re going to trip on 5 that raised portion of the sidewalk . The 6 logic isn' t there. $50 worth of tips isn't 7 really all that much. My son makes more than 8 that waiting tables at Caravan Serai in 9 Highland during the week . The City has the 10 burden of proof in this matter and they have 11 the burden not only of going forward with the . 12 preponderance of the evidence, and we have 13 argued, and if we need to later we will argue 14 it further, that the standard in this case 15 must be even higher than that. This burden of 16 proof includes the burden of going forward 17 with the evidence . You cannot infer -- make 18 inferences out of one isolated incident, 19 particularly when the City had the opportunity 20 to ask the questions and failed to do so and 21 in light of contrary testimony. And there has 22 been no testimony to sustain the finding that 23 Mr . Fan was there the evening that TDM was 24 arrested. We would respectfully request that • 25 that finding be amended in the Administrative CHRISTOPHER L. COLUMBUS COURT REPORTERS � 105 1 Law Judge' s findings. Secondly, there was no 2 evidence ever presented by anyone that any 3 other type of performance that could in any 4 way be construed as a sexual performance was 5 ever done by anyone . Next, the licensed 6 premises do not include the dance studio. The 7 licensee for the -- under the liquor license 8 is MFL, Inc. Conclusion No. 8 states, 9 "Dancing Angels, Inc. , not the licensee, 10 employed the minor, TDM, who lied about her 11 age in order to obtain employment. " When you • 12 were talking about the prohibition in the 13 dressing room that is set forth in the 14 picture, that gives an incomplete view of what 15 was done . Also the testimony reflects that 16 there was monthly meetings and Section 409 .09 17 was read and discussed with the dancers on a 18 monthly basis . The testimony reflects that 19 the City should not take adverse action on the 20 basis of inference, speculation or gossip. it 21 should be based upon evidence duly done in an 22 adverse hearing before the Administrative Law 23 Judge . We respectfully request that you -- 24 with the exceptions of the amendments that we � 25 have requested to the findings so it' s CHRISTOPHER L. COLUMBUS COURT REPORTERS � 106 1 consistent with the evidence, respectfully 2 request that you adopt the Administrative Law 3 Judge' s findings and conclusions . She was 4 there, she heard the testimony. She could 5 judge the credibility of the witnesses and put 6 that credibility to the weight of the 7 evidence . We respectfully request that no 8 adverse action be taken, but if this Council 9 is to take adverse action, that it adopt the 10 recommendations by the Administrative Law 11 Judge . Thank you. � 12 MR. SCHEIBEL: I think it' s our intent 13 now, although it' s not a public hearing, is to 14 limit the discussion to the Council . If there 15 are questions by a Council member to the City 16 Attorney or the other attorneys involved, we 17 can do that, but it' s not time for discussion 18 back and forth. i think that' s the intent of 19 the Council at this point. Bill asked to be 20 recognized first. 21 MR. WILSON: Mr. Chairman, if the City 22 Attorney would just give us again instructions 23 in terms of how we can treat the 24 Administrative Law Judge' s report, and I � 25 understand basically we can accept it in CHRISTOPHER L. COLUMBUS COURT REPORTERS � 107 1 whole, modify it, reject it? What are we -- 2 MS. McPEAK: That' s correct. Your 3 ordinance I think specifically sets forth that 4 -- (Examining documents . ) -- says that, "The 5 Council may accept, reject or modify the 6 recommendations of the Hearing Examiner. " 7 MR. WILSON: Madam Chair, Mr . Chairman, 8 members of the Council , I believe that there 9 is sufficient evidence to show that there was 10 a violation of the statute, of the 11 administrative code . And in reaching that � 12 conclusion, I looked at a number of facts. 13 One is, and i think it really rises and falls 14 on some of these facts and possibly others, 15 but one is was the minor employed as a dancer 16 at this establishment, and, two, who was the 17 employer and, finally, did the dancer engage 18 in sexual performances in violation of the 19 code . According to the Administrative Law 20 Judge' s report, the dancer, TDM, was 13 years 21 old when she was hired and that she was not 22 required to fill out an employment application 23 and that there was no evidence for proof of 24 age secured by the employer . The statute � 25 further requires that the responsibility of CHRISTOPHER L. COLUMBUS COURT REPORTERS � 108 1 establishing the age of the person employed is 2 clearly the responsibility of the employer. 3 And employing an underage person is -- there' s 4 no defense for making that decision. Again 5 there was no evidence secured by the employer 6 to establish the age of this employee. The 7 second is was David Fan the employer. 8 According to the findings of the 9 Administrative Law Judge, she said that the 10 Dancing Angels acted -- which is this group 11 that was responsible for -- for securing the � 12 dancers. The Dancing Angels acted through the 13 agent, David Fan. So David Fan was the agent 14 for Dancing Angels . She said when -- the 15 Judge went on to say that when TDM was hired, 16 David Fan was clearly acting as the agent for 17 Dancing Angels. And when TDM was dancing, 18 David Fan was acting as an agent for the 19 Belmont. Clearly any way you examine the 20 facts of the employer and inasmuch as Mr . Fan 21 had interests, financial interests and 22 ownership interests in Dancing Angels, any way 23 you cut this, David Fan was the employer and 24 was unmistakably, unquestionably the license � 25 holder. The Administrative Law Judge agrees CHRISTOPHER L. COLUMBUS COURT REPORTERS � 109 1 that, and as Mr. Byrne outlined in his 2 summary, that a reasonable person would have 3 inquired. And I would say in emphasis 4 particularly the employer about the age of TDM 5 despite the fact of her mature appearance, any 6 reasonable person would have inquired into her 7 age . This was a finding of the conclusion of 8 the Administrative Law Judge . Finally, the 9 question of did the dancer, TDM, engage in a 10 sexual performance in violation of the 11 statute. The Administrative Law Judge did � 12 conclude, and I don' t want to be repetitive 13 but I think it needs to be restated, that 14 there' s a preponderance of evidence reflecting 15 that the licensee through its agents, and 16 recognizing Mr . Fan here wears two hats, one 17 hat as the licensee and the other hat as 18 owner, part owner of the Dancing Angels, did 19 permit -- and agents including other persons 20 who were employed at the Belmont did permit 21 the minor to engage in a sexual performance. 22 It goes on to say that the Belmont was staffed 23 according to need and some employee must have 24 noticed that TDM was engaging in a sexual . 25 performance on the night in question. And CHRISTOPHER L. COLUMBUS COURT REPORTERS • 110 1 although one employee is responsible for 2 checking the ID' S, TDM did engage in three 3 separate sexual performances on that night. 4 The licensee consequently violated the statute 5 reasonably related to the licensed activity. 6 So that is all a matter of fact and that has 7 been found. Is there a reason to believe that 8 the licensee was aware of the conduct or can 9 we reasonably hold the licensee responsible 10 for the conduct. in the police report there' s 11 a rather graphic description of the activities � 12 of the underaged dancer, TDM, on that night. 13 And I ' l1 just summarize part of it. The 14 maneuvers appeared to be she bridged her back, 15 spread her legs and performed numerous pelvic 16 thrusts toward the patrons. These maneuvers 17 appeared to be simulations of sexual 18 intercourse and was accompanied by the 19 touching and fondling of her breasts and 20 genitals. The instructions posted by the 21 licensee in this -- licensee for the dancers 22 is that you cannot touch, caress or fondle 23 your breasts, buttocks, anus or genitals. 24 These instructions clearly demonstrate that � 25 the licensee is aware of what the requirements CHRISTOPHER L. COLUMBUS COURT REPORTERS � 111 1 of the law are and the conduct of the dancer 2 clearly showed that the activity is in 3 violation of the law. So I agree with the 4 Administrative Law Judge that there were -- 5 there was a sexual performance in violation of 6 the statute. I do have specific 7 recommendations but maybe at this point i 8 would withhold to hear any other -- prior to 9 making a motion, any other comments by the 10 members. 11 MS . RETTMAN: why don' t you make a motion � 12 and get it on the table? 13 MS. SONNEN. May I raise a point of 14 information? I don' t know about the rest of 15 the Council but I would feel a little bit more 16 comfortable if we went through the findings 17 and the conclusions before we discussed a 18 penalty because i think one leads to the other 19 and if we jump to the bottom line, I �m 20 concerned about how it will stand up under 21 court challenge. 22 MR. WILSON: Which finding do you want to 23 start with? 24 MR. DIMOND: Mr. President -- � 25 MS . SONNEN: T can start if you want, Mr . CHRISTOPHER L. COLUMBUS COURT REPORTERS � 112 1 Chairman. 2 MR. SCHEIBEL: Tom? 3 MR. DIMOND: Mr . President, I guess I 4 would like a clarification before we go 5 through that. What bothers me a little bit 6 about that, I mean I have no problem with 7 what' s before us . I think there' s a 8 preponderance of evidence . But I guess what I 9 would ask our Council is I wouldn' t want us to 10 go through this thing item by item and then 11 something we have said somehow be used against � 12 us later on because it appeared we didn� t 13 understand it or something like that. I would 14 rather, if there are points that need to be 15 clarified, that one ask for those 16 clarifications so somehow or another this 17 doesn' t get twisted against us. I feel 18 comfortable with the information but if one 19 other -- if another Council member wants 20 clarification, I would ask him to do that. 21 MR. SCHEIBEL: Let me -- Jane, do you 22 feel that we can proceed that way or -- 23 MS. RETTMAN: Without going -- 24 ( Inaudible . ) � 25 MS. MCPEAK: Without going through item CHRISTOPHER L. COLUMBUS COURT REPORTERS � 113 1 by item? I think you can. What I would 2 encourage you to do is whatever the motion 3 will be at the end of the discussion is to try 4 to identify it as specifically as you can by 5 number even what finding or amended finding 6 you' re basing your motion or your 7 recommendation on. 8 MR. SCHEIBEL: Let me ask it this way. 9 Bill , I think you summarized what I saw as the 10 key facts. I mean I think you stayed to the 11 points where we do have findings of facts and � 12 evidence that were presented to us. And in my 13 summary or my points and I think maybe we 14 should talk about what' s going to be the basis 15 of our action. I heard -- my notes or what I 16 think you summarized, Bill , were, correct me 17 if I �m wrong, and then I think if those are 18 the points, then I think we need to tie the 19 findings in for those points . But one fact 20 seemed to be that this person was 13 years 21 old, was a minor, that this person was an 22 employee of David Fan. Part of the evidence 23 presented, for example, was that he signed the 24 check, and you made some other points but to � 25 me that was point number 2 . The third point CHRISTOPHER L. COLUMBUS COURT REPORTERS � 114 1 was that there was a sexual performance or at 2 least three times on February 8th. I 3 summarized some of your other points but I 4 think what we need to do is, you know, I would 5 just say that all the findings and the facts 6 that we've heard based on that is what we need 7 to adopt and would be part of the motion. Let 8 me check with Bill . Are those -- 9 MR. WILSON: Those are the significant 10 facts. 11 MR. SCHEIBEL: Tom? � 12 MR. DIMOND: Mr . President, I ' ll wait for 13 Council Member Wilson to actually make the 14 motion but I would suggest that as far as the 15 facts, that we adopt the findings of facts as 16 amended by Counsel Byrne, those amendments, 17 the whole set. And i don' t think we want to 18 leave out any of those findings of facts . We 19 may emphasize a specific point but I think we 20 need to take his finding -- the finding of the 21 facts with his amendments. 22 MR. SCHEIBEL: Let me -- Kiki wants to 23 respond to that, so before we -- ( Inaudible . ) 24 MS. SONNEN: i would like to make some � 25 changes working off of Mr . Byrne' s amended CHRISTOPHER L. COLUMBUS COURT REPORTERS � 115 1 findings of fact but I would like to make some 2 deletions. Should I go through those now or 3 how do you want to proceed? 4 MR. SCHEIBEL: I think -- you know, I 5 think the question is do we adopt them all or 6 part of them? What I wanted to do, I 'm trying 7 to struggle since this is different than what 8 we paneled before, is that I think Bill 9 summarized the key points that we heard. i 10 think those were based on certain findings of 11 facts including some of the amended ones � 12 presented by Mr . Byrne . I -- I 'm not clear 13 what' s the best way. If, Jane, you could 14 advise us or if Kiki should go through and say 15 these are relevant, or other members? 16 MS. MCPEAK: I think that perhaps if 17 there are any findings that you have questions 18 about or that you have disagreements with, you 19 might want to bring those forward first. I 20 don' t know that you need to go over every 21 single finding. I think you need to focus in 22 on the ones that are making a difference in 23 your particular decision. 24 MR. SCHEIBEL: Kiki was -- � 25 MS. SONNEN: Well , I ' ll be quick. The CHRISTOPHER L. COLUMBUS COURT REPORTERS � 116 1 amended Finding No. 9 by Mr. Byrne, i would 2 suggest we delete it. The existing Finding 3 No. 9 does point out that the respondent 4 worked for -- or TDM worked for Dancing Angels 5 and that she understood that her boss was 6 David Fan. So I think that point is clear and 7 we need not amend it further as Mr . Byrne has 8 asked for . That being, I 'm uncomfortable with 9 the fact that even though there' s no -- 10 evidence was introduced to show that any 11 dancer complied with the terms of the � 12 agreement, there was no evidence introduced 13 that they didn� t. So I would suggest that be 14 -- that we accept -- 15 MR. SCHEIBEL: Is there any disagreement 16 to deleting Finding 9? 17 MR. LONG: Mr . President, just 18 procedurally I was goinq to make a motion that 19 we not accept the recommendations of either 20 party at this point and rely solely on the 21 ALJ' s findings, conclusions and memorandum 22 because I think if we start going through back 23 and forth, I frankly don� t think we need -- I 24 think that the documents speak for themselves • 25 and the accepted findings. I think if we get CHRISTOPHER L. COLUMBUS COURT REPORTERS � 117 1 into this, we' re going to start finding that 2 if we start picking and choosing, if we accept 3 more of Mr . Byrne' s than we accept of the 4 other side, then -- or vice versa, I think 5 that it maybe creates a problem. So I -- 6 MR. SCHEIBEL: Bob, let me interject. I 7 think it was presented to us and I think it is 8 up to us to -- I mean it isn' t a ball game 9 whether it' s five to three . I think both 10 sides presented -- both sides ended by asking 11 we accept their amendments . We' re now at the � 12 point where we have stated these seem to be 13 the key facts to us, and I 've heard some 14 agreement on that. I think we should go 15 through and those points that are relevant to 16 those facts that were brought up, and there' s 17 a number of things that were said today that 18 if not, then part of Bill ' s initial motion and 19 I -- I mean I agree . I think we can delete 20 Finding 9 . It' s not necessary and I think -- 21 MS. SONNEN: Should I go through them? 22 Or -- 23 MR. SCHEIBEL: Tom? 24 MR. DIMOND: Mr. President, I guess I � 25 have a different -- Mr . Byrne is going to have CHRISTOPHER L. COLUMBUS COURT REPORTERS � 118 1 to go to court to support this case I suspect. 2 I -- and I guess 1 don' t see any -- I don' t 3 see the grievous as error in the point he' s 4 making. And I would not want to handcuff him 5 in any way in making his case . He believes 6 that this is the best case and I would like to 7 leave him with the strongest case that he has. 8 And I guess what I would ask is I would ask 9 him -- first of all , before we make a 10 decision, I would recommend against it unless 11 Mr. Byrne would suggest that this is not � 12 important one way or another. 13 MR. SCHEIBEL: Janice? 14 MS. RETTMAN: Well , Mr. Chair, I Can go 15 along with the suggestion to delete that one . 16 I think that we've already closed off -- this 17 is the discussion among ourselves. What I 18 would prefer, however -- 19 MR. SCHEIBEL: We may ask anybody 20 questions. 21 MS. RETTMAN: Yes . But I would prefer 22 before we go to Kiki ' s amended version of 23 either of them, is here is what I heard Bill 24 saying. Item number -- on the original � 25 Finding of Facts, No. 1 , No. 8, No. 13, 14, 15 CHRISTOPHER L. COLUMBUS COURT REPORTERS • 119 1 and 16 are the key points that Bill brought 2 up. That' s on the original Administrative Law 3 Judge -- 4 MR. SCHEIBEL: The finding of facts and 5 conclusions. 6 MS. RETTMAN: Not the conclusions, just 7 the findings of facts. No. 1 is in regard to 8 who owned Dancing Angels as well as who owned 9 the Belmont. No. 8 is in regard to the minor 10 working for. No. 13 is in regard to who paid 11 Dancing Angel and the minor . No. 14 is the � 12 specific activity, the specific, 13 quote-unquote , dance that was performed. And 14 r will leave it just as dance . No. 15 is the 15 police report and No. 16 is the ID discussion. 16 I think those are the main ones that I think 17 Bill just did. If there are -- 18 MR. SCHEIBEL: I agree . 19 MS. RETTMAN: Others to be added -- 20 MR. SCHEIBEL: I think that' s a good 21 base . 22 MS. RETTMAN: That' s the emphasis. 23 MR. SCHEIBEL: Let me ask if there' s 24 anybody that wants to add to those? . 25 MS . RETTMAN: And those are highlighted. CHRISTOPHER L. COLUMBUS COURT REPORTERS • 120 1 i �m saying we accept what Tom said, is that 2 they all are, but we highlight those based on 3 what Bill said those are the findings that are 4 most -- 5 MR. SCHEIBEL: Those tend to be the 6 findings of facts that Bill addressed -- 7 MS. RETTMAN: Okay. 8 MR. SCHEIBEL: -- and that I addressed as 9 key points that i �m going to -- that I 'm using 10 in the determination of what we' re going to 11 do. • 12 MS . SONNEN: You used the -- 13 MR. SCHEIBEL: Kiki? 14 MS. SONNEN: Janice, you rattled off 15 those numbers now. You' re using the ALJ' s 16 numbers? 17 MR. SCHEIBEL: Yes . 18 MS. RETTMAN: Yes. Of findings of fact, 19 not the conclusions, findings of Fact. 20 MS . SONNEN: Yes. Item No. 8 , the 21 Finding of Fact 8 , I prefer the Phil Byrne 22 version of the amended finding of fact. 23 MS. RETTMAN: But, see, I just wanted to 24 get them on the table. • 25 MR. SCHEIBEL: I think -- CHRISTOPHER L. COLUMBUS COURT REPORTERS . 121 1 MS . RETTMAN: And then the amended No. 8 2 would even be stronger than this 8 . 3 MR. SCHEIBEL: Let me -- Kiki , I think 4 your suggestion is good to discuss . Does 5 anybody disagree with that? 6 MS . RETTMAN: No. 7 COMMITTEE MEMBER: I 'm sorry? 8 MR. SCHEIBEL: We' re substituting or 9 amending -- as part of our conclusions, we are 10 using the amended findings of Phil Byrne for 11 Finding No. 8 . We've accepted as a base � 12 Janice' s suggestions. Now Kiki � s 13 recommendation is that we' re amending that 14 Finding 8 with the Finding 8 that Phil Byrne 15 presented. 16 COMMITTEE MEMBER: And where is that 17 located? 18 MS. SONNEN: Page 6 -- ( Inaudible. ) 19 (Brief discussion among Council members. ) 20 MR. SCHEIBEL: Let me say on that 21 first -- 22 MR. DIMOND: Mr. President, I would 23 rather, I mean I think your suggestion is fine 24 as far as the highlighting but I would rather � 25 that we start from Mr . Byrne' s findings and CHRISTOPHER L. COLUMBUS COURT REPORTERS � 122 1 conclusions and we change those if not -- that 2 is the recommendation. And I would like us to 3 start from there and if we want to change 4 something -- 5 MR. SCHEIBEL: I �m comfortable going the 6 way we' re proceeding at this point. 7 MR. DIMOND: Well , then I ' ll go item by 8 item. 9 MR. LONG: Mr. President, I was going to 10 suggest that maybe another way to proceed, I 11 don' t know if you want to do this, is that we � 12 assume that we've read all this and we've 13 heard everything and we�ve read everything, 14 we've heard everything and now we' re ready to 15 make a decision. And it seems to me that 16 maybe a simpler way to proceed is actually to 17 make a motion based on what we've heard and as 18 to what the proceedings outlined, we wait to 19 hear all the arguments, we wait to hear the 20 rebuttle , the presentation, and then we' re 21 ready to make a decision. I think -- at least 22 I �m ready to make a decision. I 'm ready to 23 state a motion -- ( Inaudible. ) 24 MR. SCHEIBEL: Okay. Let me -- let me � 25 say where I think we' re at. I 'm taking Bill ' s CHRISTOPHER L. COLUMBUS COURT REPORTERS � 123 1 remarks as the first part of the motion for 2 action. 3 MR. LONG: Fine. 4 MR. SCHEIBEL: And what we' re -- I think 5 it' s important that not only there' s some 6 agreement or majority on the conclusion but 7 the basis of that motion. 8 MR. LONG: That' s right. 9 MR. SCHEIBEL: And so I think we' re 10 getting close to a basis of what this Council 11 sees as the important facts. And at this � 12 point we�ve accepted as the basis Bill ' s 13 summary which I think can be used in putting 14 together the resolution with or without the 15 numbers. Secondly, we now have the findings 16 of facts of the Administrative Judge plus 17 there seems to be agreement that -- from what 18 we heard today, that Phil Byrne' s substitute, 19 we should accept the amended findings of facts 20 relating to No. 8 as part of what we see as 21 major facts. 22 MS . RETTMAN: I concur . 23 MR. LONG: That' s fine with me. 24 MR. SCHEIBEL: And now are there other � 25 either amended findings of facts or other CHRISTOPHER L. COLUMBUS COURT REPORTERS � 124 1 points? And then I � 11 go to Bill for, you 2 know, his motion on the action. 3 MR. LONG: Well , I think -- 4 MR, SCHEIBEL: Tom and then Kiki? 5 MR. DIMOND: I move then Phil Byrne' s 6 Finding 9 -- 7 MS. RETTMAN: On his amended or his -- 8 MR. DIMOND: Yes. 9 MR. SCHEIBEL: On his amended which Kiki 10 felt, not in opposition but felt it wasn' t 11 needed. � 12 MS. RETTMAN: Okay. Could we take a vote 13 on that, Mr . Chair? Is that -- I don� t mean 14 to be speaking out of turn -- 15 MR. SCHEIBEL: No. I think -- 16 MR. DIMOND: Sure . Fine . 17 MR. SCHEIBEL: I 'm stumbling through this 18 but I �m trying to keep some order . And then 19 I � 11 recognize Roger . i skipped him before. 20 Tom' s motion is that we accept Phil Byrne' s 21 Finding No. 9 , we use that amended finding. 22 All those -- do we need to do roll call on 23 these? Can they give a hand vote? 24 COMMITTEE MEMBER: It' s going to be � 25 split. CHRISTOPHER L. COLUMBUS COURT REPORTERS � 125 1 COMMITTEE MEMBER: We probably should. 2 MS . RETTMAN: Why don' t we just -- 3 MR. SCHEIBEL: Okay. Roll call . 4 MR. OLSON: Long? 5 MR. LONG: No. 6 MR. OLSON: Gozwitz? 7 MR. GOSWITZ : Yes. 8 MR. OLSON: Rettman? 9 MS . RETTMAN: No. 10 MR. OLSON: Sonnen? 11 MS. SONNEN: No. � 12 MR. OLSON: Wilson? 13 MR. WILSON: Yes. 14 MR. OLSON: Dimond? 15 MR. DIMOND: Yes. 16 MR. OLSON: President Scheibel? 17 MR. SCHEIBEL: No. 18 MR. OLSON: Three in favor, four against. 19 MR. DIMOND: I would move 10 , Finding 10 . 20 MS. SONNEN: I have an amendment to 10 . 21 COMMITTEE MEMBER: Where? 22 MR. DIMOND: Finding 10 . 23 MR. LONG: Are we going to go down the 24 list of the other findings then, too? � 25 MR. SCHEIBEL: As long as -- I think CHRISTOPHER L. COLUMBUS COURT REPORTERS � 126 1 that' s Tom' s intent. 2 MR. LONG: I think we' re going -- I think 3 we' re going to have a problem because frankly 4 at least my concern is I 've spent much more 5 time dealing with the actual ALJ' s opinion and 6 facts and conclusions than I have with either 7 side. And if we go down each one of them, 8 we' re going to start -- I think start to take 9 some votes that we' re not prepared to take. 10 MS. SONNEN: Well , 10 is the same in 11 either version. There' s just amendments off � 12 of the original . Mr . Byrne' s amendments off 13 of -- 14 MR. SCHEIBEL: Yes. These are really 15 more -- actually more technically these are 16 amendments to the findings and not changinq 17 the findings. 18 MS. SONNEN: Yes. They' re expanding on 19 them. I have an amendment to the amended No. 20 10, if that' s in order. 21 MR. SCHEIBEL: Yes . I think that would 22 be in order . 23 MS . SONNEN: There was the last sentence, 24 and this is the last sentence in the amended � 25 Finding 10 of Mr . Byrne. That is where his CHRISTOPHER L. COLUMBUS COURT REPORTERS � 127 1 finding differs from the ALJ' s finding. And 2 that sentence starts out, there was no 3 evidence showing -- "There was no evidence or 4 showing that the dancers or any of them 5 complied with those instructions. " I would 6 suggest -- and then further down on that page 7 of Mr. Byrne' s memo, that new Finding 16 . 1 8 that talks about the other incident of the 16 9 year old dancing without an ID or prepared to 10 dance without an ID, what I would suggest is 11 that we change the wording of that last � 12 sentence to say there was evidence showing 13 that there was another incident concerning a 14 16-year-old dancer not alleged in the notice 15 of hearing but raised by counsel for 16 respondent in his class examination of Officer 17 Meyer. This dancer was about to perform on 18 the stage and had no identification or proof 19 of age . 20 MR. SCHEIBEL: Do you consider that -- 21 MR. DIMOND: I guess -- 22 MR. SCHEIBEL: -- Tom, as the maker of 23 the motion, a friendly motion? 24 MR. DIMOND: i think so. That' s kind of � 25 bringing up Item H there, kind of -- CHRISTOPHER L. COLUMBUS COURT REPORTERS � 128 1 MR. SCHEIBEL: Right. Right. But it' S 2 your intent to do that later on anyway so -- 3 MR. DIMOND: Right. Yes. 4 MR. SCHEIBEL: If T hear no disagreement, 5 I ' ll accept -- 6 MS. SONNEN: Can I just explain a little 7 bit more? Both the ALJ and Mr. Byrne' s 8 amended Finding 10 refers to this rule that 9 they had to carry valid ID' s at all times or 10 you don' t dance so don' t lose your ID. So 11 this gives an example of another situation � 12 besides TDM that did not have an ID at the 13 point of the dance . So I thought it just 14 added a little bit more weight to that 15 finding. 16 MR. SCHEIBEL: Unless I hear 17 disagreement, then we' ll add the amended set 18 of 10 and 16 to our findings . 19 MS . RETTMAN: Well , it' s actually Finding 20 H. Why don' t you call it Finding H because I 21 thinnk -- 22 MR. SCHEIBEL: F and H. 23 MS . RETTMAN: Otherwise because there is 24 a 16 -- � 25 MR. SCHEIBEL: F and H is what it is. CHRISTOPHER L. COLUMBUS COURT REPORTERS . 129 1 MS. RETTMAN: A normal 16 . 2 MR. SCHEIBEL: Right. 3 MS . SONNEN: Jane McPeak pointed out but 4 maybe I didn� t clarify this, what I 'm -- I �m 5 deleting at that "there, " that sentence that 6 says, "There was no evidence showing, " and 7 changing it to, "There was evidence showing, " 8 and then it jumps down to here . I don' t know 9 if I made that clear . 10 MS. RETTMAN: It' s clear to me . 11 MR. SCHEIBEL: I ' ll continue -- Tom, do � 12 you have other -- 13 MR. DIMOND: Well , okay. Finding 11 . I 14 move Finding 11 -- ( Inaudible . ) It would be 15 Item G here. 16 MS. RETTMAN: Well , Mr . Chair, Finding 11 17 in the original ALJ' s report was that the 18 minor looked older than her age. One of the 19 reasons why I went through and just picked out 20 those ones in the original ALJ is that I do 21 not believe that that needs to be a finding 22 whatsoever . The fact is that she was a minor, 23 she was a child. And a child should not be 24 hired, period, to be doing this -- to be � 25 dancing, period. Okay? And so the reason why CHRISTOPHER L. COLUMBUS COURT REPORTERS • 130 1 I didn' t have No. 11 or Finding 11 is that 2 everybody knows she' s 11 -- or 13 . Excuse me . 3 She' s decreasing. You know, so that' s a 4 finding of fact. So regardless of how she 5 looked or didn't look, whether she looked 6 older or younger, it still was the 7 responsibility of the owner/owner of Dancing 8 Angels/owner of the license to know that. 9 Does that make sense? 10 MR. DIMOND: Well , I don't differ with 11 you but I � 11 tell you why i �m arguing to put � 12 these in. And I won' t argue legalities with 13 you and what' s the best -- 14 MS. RETTMAN: Well , I 'm not -- 15 MR. DIMOND: No, no. But the reason why 16 I �m doing this is after the hearing and the 17 Hearing Examiner, the ALJ did their job, our 18 attorney, Mr . Byrne, counsel ' s paid, 19 experienced counsel -- not counsel but our 20 other counsel , our left-hand counsel, went to 21 work and looked at what were the issues in the 22 case and tried to outline what are the 23 important points and how to best define those 24 points so to support our case . Now I , to be � 25 perfectly honest, I believe that he' s done a CHRISTOPHER L. COLUMBUS COURT REPORTERS � 131 1 good job and i believe in the overall concept. 2 As to how you word these findings to have the 3 best legal case, I do not feel experienced or 4 qualified to make those decisions. So by 5 wording these, making these changes, we may 6 think or I might think that I was doing a 7 better job but I don� t have the experience of 8 the law to make that judgment. So I would 9 rather go with his. 10 MR. SCHEIBEL: If I could just -- it 11 seems to me that what we need to do is not � 12 whether right or wrong or priority but if the 13 findings relate to the motion, maybe we can 14 accept them and then in the final resolution 15 can be put in some order . You know, I think 16 we are maybe agonizing over this a little too 17 much. And alls we' re saying is we heard this 18 and some of us believe this to be part of the 19 reasoning. I mean we can' t dissect everything 20 that goes through our brains and say this is 21 more important than that. 22 MR. WILSON: Mr . Chairman, this is the 23 first time that we had this procedure before 24 so we' re kind of working ourselves through it � 25 and in the future we' 11 be able to handle it CHRISTOPHER L. COLUMBUS COURT REPORTERS � 132 1 much more efficiently. But I think one of the 2 things I would like to point out is that with 3 all due respect that in terms of the treatment 4 of evidence from Mr. Byrne' s, prosecutor, or 5 from the defendants, basically they' re on the 6 same -- on equal standing before us and we can 7 sift through the information from both sides 8 and from the Administrative Law Judge, take 9 all of this information under consideration. 10 And so I don� t particularly give any greater 11 weight -- I don' t give any greater weight to � 12 Mr . Byrne' s findings and recommendations than 13 I do to the defendant' s recommendations . We 14 just have to treat them all on an equal plane 15 and then from that draw a conclusion and set 16 forth the facts that we would be governed by. 17 MR. DIMOND: Mr . President? It' s a good 18 point you' re raising, as far as how we' re 19 sorting through this. And it' s a learning 20 process for all ofus, it' s a new process, but 21 I ' ll give you the basis for my making this 22 decision. I would agree with you, as we' re 23 holding the hearing, we look at the 24 information from both of them. But where I 'm � 25 headed, I 'm headed for taking action on this CHRISTOPHER L. COLUMBUS COURT REPORTERS � 133 1 case that I -- so i based on that action, the 2 legal counsel that has made the case for 3 taking action on it -- 4 MR. SCHEIBEL: But, Tom, I mean I sort of 5 -- I think what we have to do is say what are 6 the facts first and I like the way we' re 7 proceeding. i don� t think we say here is the 8 conclusion and what do we need to reach that 9 conclusion. 10 MR. DIMOND: No, no, no. Mr . President, 11 I would agree with that. What I 'm saying is � 12 is that the attorney stated as_to how to put 13 this. Now if you differ with if you differ 14 with the basis for that, in other words, you 15 say I think this just is a mistake, that' s one 16 thing. But i 'm talking about the wording. 17 Now if you agree that the principle is right, 18 then to say, well , I think this would be a 19 better way to hold it up in court, that is the 20 point I guess I 'm trying to make . 21 MR. SCHEIBEL: I think we should -- I 22 didn� t hear any disagreements at 11 which 23 started the basis for what we' re putting 24 together and we' re accepting that as part � 25 of -- CHRISTOPHER L. COLUMBUS COURT REPORTERS • 134 1 MR. LONG: Mr . President, the point that 2 I wanted to make and what I was concerned 3 about in going through all these, although we 4 doing it, that' s fine, I think it' s important 5 to reiterate what Bill said. We need to sit 6 as judges. This is not our case and we' re not 7 trying to improve our status in terms of 8 taking it up but I think, therefore, we've got 9 to -- we've got to give some basis for why 10 we' re going to accept or reject each one of 11 these additional findings. I mean that' s -- I • 12 mean if we' re going to accept and reject, 13 we've got to give at least some explanation of 14 why we' re doing it. And I think Item 11 , I 'm 15 now convinced, I was going to vote against it 16 but i did find on page 8 of the ALJ� s 17 memorandum in which she states that a 18 reasonable person -- she agrees with the City 19 that the reasonable person would have inquired 20 further . And I was trying to find that 21 language somewhere I didn� t want to just add 22 in some conclusionary kind of statement. But 23 I think now that i find that, I support the 24 proposal to accept amended Finding 11 . � 25 MR. SCHEIBEL: Okay. So 11 is part of CHRISTOPHER L. COLUMBUS COURT REPORTERS � 135 1 our motion at this point. 2 MS . SONNEN: The amended finding. 3 MR. SCHEIBEL: Right. Finding 11 . "H" 4 we considered -- 5 MR. DIMOND: 18 . I would move 18 . 6 MS. SONNEN: I have an amendment to 17 . 7 MR. SCHEIBEL: I think why don' t we keep 8 on Tom instead of going through -- 9 MS. SONNEN: That' s fine . 10 MR. SCHEIBEL: -- the amended Mr. Byrne' s 11 recommendation. I 'm not that opposed. I just � 12 think we haven' t really talked about, at least 13 what I �ve heard in Bill ' s motion at this 14 point, the whole issue of prostitution. And 15 so I don' t see it really adding anything to 16 the action we' re going to take . 17 MR. GOSWITZ : Well , it' s part of the 18 penalty. Why wouldn' t it be? 19 MR. SCHEIBEL: I think we' re focusing on 20 the reason for our action. I 'm very 21 comfortable with the direction we' re heading. 22 MR. DIMOND: I believe that one of the 23 discussions was his character to be able to 24 hold the license . And I think this was part � 25 of the substantiation as to the basis there. CHRISTOPHER L. COLUMBUS COURT REPORTERS � 136 1 MR. SCHEIBEL: The desire to include it 2 or not include it? The amended? Seems to be 3 a majority in favor . 4 MR. DIMOND: I would move onto Finding 5 19 . 6 MR. LONG: If somebody will tell me what 7 the difference is between 18 and 19, I guess 8 that' s what I 'm just having trouble with right 9 now, what the substantive difference is 10 between 18 -- that' s my concern, is that we 11 state what is the substantive difference � 12 between the amended -- --- 13 MS . McPEAK: I think it' s the underlying 14 language . 15 MS . RETTMAN: Yes. ( Inaudible ) -- that 16 the parking lot did not become -- 17 MR. SCHEIBEL: I think you' re right. 18 MS . SONNEN: The last sentence, Bob, is 19 different in 19 . 20 (srief discussion among Council members. ) 21 MR. LONG: The last sentence is 22 different? 23 (Brief discussion among Council members. ) 24 MR. SCHEIBEL: Okay. I hear no . 25 objection -- CHRISTOPHER L. COLUMBUS COURT REPORTERS � 137 1 MR. DIMOND: I move on to 20 , there' s two 2 points there, J and L. 3 MS. McPEAK: Excuse me, Council Member 4 Scheibel , would it help if you went through 5 these, because that' s what r have on my copy, 6 where they differ from the Hearing Examiner' s? 7 MR. SCHEIBEL: That would be helpful . 8 MS. MCPEAK: Maybe that would be helpful 9 and speed things up a little bit. On No. 20 10 there' s the inclusion of the word "not" in the 11 first sentence, that the management has not � 12 always cooperated. That' s definitely a 13 different finding from what the Hearing 14 Examiner found. 15 MR. SCHEIBEL: Right. And that' s our 16 summary which I 've been working off of 17 primarily which states that. 18 MS. McPEAK: And the bouncers and 19 bartenders, the word "infrequently" has been 20 included in terms of pointing out prostitutes 21 and pimps and so on. And the language more 22 often has failed to recognize the problem 23 exists and you have not responded to Officer 24 Lutchen' s request to view photos of � 25 prostitutes working the Belmont Club and CHRISTOPHER L. COLUMBUS COURT REPORTERS � 138 1 parking lot is new. There' s the inclusion of 2 the word "once" after, "The bar manager once 3 has advised the police, " and so on. And then 4 the language, "Officer Lutchen has advised the 5 bar management that they do have the right to 6 evict known prostitutes, especially if they 7 are working the bar, but he has never been 8 asked to evict a prostitute, " is new. And 9 finally in the next sentence after the word 10 "Belmont and Lendway' s Bar has sought 11 vigorously to deal with the problem, " has been � 12 included in the amended findings . And that 13 was not in the Hearing Examiner' s. 14 MR. SCHEIBEL: Any objections? 15 (No response. ) 16 MR. SCHEIBEL: No? 17 MR. DIMOND: I move along to the 18 conclusions -- 19 MR. WILSON: I -- ( Inaudible . ) I think 20 that' s a very important point because here 21 you've got two establishments side by side 22 separated only by six inches. One 23 establishment constantly complains to the 24 police, the other establishment seldom ever � 25 complains . And it' s not as though they were a CHRISTOPHER L. COLUMBUS COURT REPORTERS . 139 1 half a mile away, they' re right next door to 2 each other and it just shows an attitude . 3 MR. SCHEIBEL: I think we' re ready to 4 probably take the motion for the kind of 5 action -- 6 (Brief discussion among Council members . ) 7 MR. LONG: ( Inaudible . ) And reject or 8 accept. I 'm telling you, we've got an 9 obligation to go through the other side' s 10 exceptions and accept or reject those . And 11 that was my point -- ( Inaudible . ) . 12 MR. WILSON: Would you like -- would you 13 like to walk us through them, Bob? 14 MR. LONG: Fine . I just think we have an 15 obligation to do that and if we don't, it will 16 not in my opinion be a fair hearing. So I -- 17 MR. WILSON: I would very much like to do 18 that. 19 MR. LONG: Yes. I think we need to do 20 that. That' s my problem, is i am not -- I 21 have not spent much time dealing with the 22 exceptions that I have with the actual 23 findings . So if we go through it on the 24 exceptions of Finding of Fact, item number, . 25 their No. 1 , just kind of follow them, how CHRISTOPHER L. COLUMBUS COURT REPORTERS � 140 1 they work -- 2 MS. RETTMAN: Is there -- Mr . Chair, is 3 their attorney advising us the same way as Bob 4 is trying to advise, that we must go through 5 the opposite, if we find the findings of fact 6 as we determined? 7 MS. MCPEAK: I don't think it' s required 8 that you go through each of each party' s 9 findings and specifically accept or reject 10 them. I think you can certainly do that if 11 you want to. Generally in this kind of • 12 hearing or any other hearings that you have, 13 for example, I use the planning commission as 14 a good example, they will go through and they 15 will say, Mr . Chairman, based on findings, you 16 know, 1 through 10 and 15 through 20 , I move 17 that such-and-such happens. And they don� t 18 necessarily go through -- 19 MR, SCHEIBEL: Accept or reject. That' s 20 what I 'm trying to do, is saying look -- we' re 21 saying here is what we've heard. We don� t 22 have to say what we don' t agree with. I 'm 23 actually, Bob, disagreed sort of that -- I 24 think it' s up to us to say here' s the findings � 25 that we' re basing our decision on. I �m not CHRISTOPHER L. COLUMBUS COURT REPORTERS � 141 1 familiar enough, to be honest, to reject some 2 of these . I �m based -- because we did not -- 3 we didn' t go through each one of those points 4 necessarily in the discussion today and I 'm -- 5 I think it is true, we've read all these, 6 we' re trying to draw some conclusions . Mr . 7 Wilson has started a motion saying here is 8 what happened, sort of the whereases. And 9 then I think we' re at the point now where 10 we' re at a resolve . 11 MR. LONG: Well , that may be true . I � 12 guess, Mr . President, there' s only one thing, 13 and I can't find it in their document right 14 now, that they made that I think we have to 15 either accept or reject and they' re taking 16 exception with the Finding of Fact No. 14 17 which we' re about to accept, which is that Mr. 18 Fan was not present in the club that night. 19 And they say -- 20 COMMITTEE MEMBER: Here. 21 MR. LONG: On page 4 . Yes. They' re 22 taking exception to that and would submit a 23 new finding. And I guess I actually would 24 move to reject that finding, their proposed � 25 finding. CHRISTOPHER L. COLUMBUS COURT REPORTERS � 142 1 MR. SCHEIBEL: Yes . But we haven' t 2 accepted any of them so -- 3 MR. LONG: Well , Mr . Chair, we are 4 accepting -- 5 MS. RETTMAN: Mr . Chair -- no. 6 MR. LONG: Aren' t we? 7 MS. RETTMAN: No. Mr. Chair? The 8 Finding of Fact No. 14 of the ALJ' s report. 9 Clearly, if I accept that, then obviously I 10 reject -- 11 MR. SCHEIBEL: Yes, unless there' s an � 12 amendment. __ -- 13 MS. RETTMAN: the finding by their 14 refutation of that finding. Am I on the same 15 frequency? 16 MR. LONG: Okay. I understand what 17 you' re saying. So you' re concluding if we 18 accept 14 that we' re going to reject -- 19 MS . RETTMAN: Absolutely. 20 MR. SCHEIBEL: Unless someone makes -- 21 MR. DIMOND: Reject the rejection. 22 Right. 23 MR. SCHEIBEL: Unless somebody makes a 24 different motion. � 25 MS. RETTMAN: And I didn' t hear -- CHRISTOPHER L. COLUMBUS COURT REPORTERS � 143 1 MS. SONNEN: Could I make a motion that 2 will take some of Cochrane and Bresnahan� s 3 findings on -- Finding No. 17 I would like to 4 make an amendment on. And we would have to 5 work off of the ALJ' s Finding 17 , first of 6 all . This is a -- my first amendment is one 7 that I �m making my own self, nobody has 8 suggested this. it' s about -- 17 , it' s about 9 in the, about five lines down. It refers to 10 -- it says, "One neighborhood vigilante, 11 Manuel Mirendez . " I would strike the word � 12 "vigilante" and put in the word "activist" 13 instead. 14 MS. RETTMAN: I 'm okay with that. 15 MS. SONNEN: For reasons that the word 16 "vigilante" is kind of inflammatory and I 17 think there' s a better way to describe Mr. 18 Mirendez . Then the last phrase on item -- on 19 Finding No. 17 says, "But he has made 20 to 25 20 arrests outside the bar for solicitation. " I 21 would strike that phrase and insert the 22 Bresnahan finding which is on their -- begins 23 on their page 8 and I would put a period -- 24 well , it would read this way: "He has never � 25 made an arrest inside the bar for CHRISTOPHER L. COLUMBUS COURT REPORTERS � 144 1 solicitation, " period. Then the new sentence 2 would say, "Officer Luchen testified that he 3 believed he made the following arrests . One 4 in Lendway' s lot, two in Skipper� s lot, 20 to 5 30 on the corner of Sherburne and Dale, 20 on 6 University and Dale as well as numerous 7 arrests at St. Albans and Sherburne and Kent 8 and Sherburne, " period. i think we need to 9 put that in there to give a little bit more 10 accurate reflexion of the -- 11 MR. SCHEIBEL: Yes. It' s more specific I • 12 think than the generality, 20 to 25 arrests. 13 (Brief discussion among Council members. ) 14 MR. SCHEIBEL: Okay. I think we have the 15 whereases at this point. 16 MR. LONG: Well, Mr. President, I guess I 17 may have missed something. The conclusion, 18 did we adopt -- which conclusion are we 19 working on? i �m focusing on No. 8 because 20 there was something that I did discover in 21 reading this that I think is important that we 22 have on the record. When we had the hearing, 23 the question came up, which is the proper way 24 to read Conclusion No. 8 . That' s to me the . 25 key conclusion of the whole thing, in which CHRISTOPHER L. COLUMBUS COURT REPORTERS � 145 1 there' s a miss -- there' s a misuse of a word 2 in that conclusion. But I think when you read 3 -- are you all following me? 4 MS. RETTMAN: No. Wait -- 5 MR. LONG: i �m reading Conclusion No. 8 6 off the ALJ -- 7 MS. RETTMAN: Mr . Chair, we' re not 8 accepting the conclusions . All we are doing 9 so far is accepting the findings of fact. We 10 have not accepted any conclusions. We are 11 accepting the findings of fact as our � 12 conclusions. We are not -- we have not looked 13 at the conclusions -- 14 MR. LONG: Okay. 15 MS . RETTMAN: -- by the ALJ or by anyone 16 else. 17 MR. WILSON: We draw our own conclusions . 18 MS. RETTMAN: That' s right. 19 MR. SCHEIBEL: Let me check with Ms. 20 McPeak. Is this okay to proceed the way we 21 are, that we 've stated a number of what I 22 would call whereases or findings or points 23 that are the basis for -- 24 COMMITTEE MEMBER: ( Inaudible. ) � 25 MS. McPEAK: Yes . CHRISTOPHER L. COLUMBUS COURT REPORTERS � 146 1 MR. LONG: But, Mr . President, I don' t -- 2 it doesn' t matter to me whether we adopt all 3 the conclusions. I think it' s crucial though 4 that -- whether we conclude or we adopt this 5 conclusion doesn' t matter to me but it seems 6 to me that -- that No. 8, my point is that 7 when you read the ALJ' s memorandum, which I 8 had a chance to read a second time during the 9 break, she does conclude on page 8 that there 10 is a preponderance of the evidence, and I 11 think Bill read it, reflecting the licensee � 12 through its agents did permit the minor to 13 engage in a sexual performance . That 14 clarifies a mistake, the mis-word, I think 15 it' s No. 8 . I think it is clear that the ALJ 16 did make a conclusion that the -- that the 17 licensee did permit a minor to engage in a 18 sexual performance . That was unclear . And I 19 think it' s now very clear. And whether we 20 adopt it or whether we put it separately, but 21 that to me is a crucial item because that says 22 a lot to me, that once we've made that 23 conclusion, so I don� t know how you want to 24 proceed with that. If you've got that in the � 25 whereases already -- CHRISTOPHER L. COLUMBUS COURT REPORTERS � 147 1 MR. SCHEIBEL: I think we can add it as 2 another whereas. 3 MR. LONG: Okay. 4 COMMITTEE MEMBER: Which part of it? 5 MR. SCHEIBEL: No. 8 -- 6 MR. LONG: Yes. The second part of that 7 that the City did sustain its burden of 8 proving that the licensee permitted a minor to 9 engage in a sexual performance by a 10 preponderance of the evidence according to the 11 ALJ' s memorandum. � 12 MR. SCHEIBEL: Kiki? 13 MS . SONNEN: I 'm fine with the amendment 14 that Council Member Long has made but I just 15 wanted to point out to the Council that in Mr. 16 Bryne' s amended Conclusion 8 , he is contesting 17 that the City sustained its burden of proof in 18 both instances. 19 MS . RETTMAN: That' s right. 20 (Brief discussion among Council members. ) 21 MR. SCHEIBEL: I think we 've really -- I 22 mean as i -- as I understand what we've done 23 is the findings we've found are contrary to 24 that. � 25 MR. DIMOND: I don't think so. CHRISTOPHER L. COLUMBUS COURT REPORTERS � 148 1 MR. LONG: Contrary to what? 2 MR. GOSWITZ : To the conclusions . 3 MR. SCHEIBEL: To the fact -- 4 MR. GOSWITZ : Our findings are opposite 5 to this 8 . We don' t agree with that. 6 MR. LONG: My point is our -- one of our 7 findings -- my problem is I don' t know what 8 all the whereases are, Jim. So you' re telling 9 me that we've got a bunch of whereases and i 'm 10 not sure what they are, but I feel very 11 strongly that one of our whereases ought to be 12 that the Administrative Law Judge found by a � 13 preponderance of the evidence that the City 14 did sustain its burden in showing that the 15 licensee did permit a minor to engage in 16 sexual performance . I think we've got to have 17 that language in there. It' s very key I think 18 in terms of my feeling about this case. 19 MS. SONNEN: In the finding? 20 MR. LONG: Well , wherever you' re putting 21 them. 22 MS. RETTMAN: Mr . Chair -- 23 MR. LONG: I 've kind of given up on the 24 process. � 25 MR. DIMOND: Mr . President? Could I ask CHRISTOPHER L. COLUMBUS COURT REPORTERS � 149 1 -- I don� t think we need to get into those 2 conclusions. If I understand, we' re waiting 3 for a motion and then we'll finalize the 4 conclusions -- 5 MR. SCHEIBEL: Well , I heard no 6 disagreement with adding another area at Bob' s 7 suggestion -- 8 MR. DIMOND: No. I don' t, but are we 9 going to -- 10 MR. LONG: i guess that' s the way I guess 11 we� re going to go, as to whereases? • 12 MR. SCHEIBEL: Well , I 'm just saying 13 we' re based -- we haven' t our motion will 14 be an action. All we' re doing is -- 15 MR. LONG: Yes. The whereases are 16 essentially our findings . Whether we take it 17 from the facts or conclusions, they are our 18 findings leading up to the motion. 19 MR. SCHEIBEL: Maybe whereas isn�t the 20 best word. We've addressed so far our 21 findings or the points that we feel are 22 relevant and occurred. Janice? 23 MS. RETTMAN: Mr . Chair , I 'm not trying 24 to elongate this but I do feel a real need to • 25 -- I think all of us are on the same frequency CHRISTOPAER L. COLUMBUS COURT REPORTERS • 150 1 but I want to get, Bob, just so you know what 2 I think all of us are on is No. 1 , 8, 13, 14, 3 15 and 16 of the original ALJ and then Tom did 4 a nice job of then saying we amend No. 8 on 5 Phil ' s amended, then we amended 8 of the ALJ, 6 No. 10 , the amended version, No. 11 , the 7 amended version. These are our whereases . 8 No. 17 , No. 18 amended, 19 amended, 20 9 amended. Those are the whereases. 10 MR. SCHEIBEL: Right. And -- 11 MS. RETTMAN: Now therefore -- � 12 MR. SCHEIBEL: And also the one Bob 13 presented on the -- 14 MS. RETTMAN: And the Conclusion No. 8 15 that -- 16 MR. LONG: I don• t accept the whole 17 Conclusion No. 8 . I 'm just -- 18 COMMITTEE MEMBER: It' s changing it. 19 MR. LONG: Yes . I �m sugesting a new 20 whereas and if that' s what we were doing, it 21 is to say that whereas that the ALJ -- 22 MS. RETTMAN: And that is the last 23 whereas . Okay? 24 MR. LONG: -- the ALJ found by a � 25 preponderance of the evidence that the CHRISTOPHER L. COLUMBUS COURT REPORTERS � 151 1 licensee -- 2 MS. RETTMAN: Right. Okay. 3 MR. LONG: -- did permit -- 4 MS. RETTMAN: Okay. So that' s where -- 5 so now therefore, Bill -- 6 MR. WILSON: I would like to make a 7 motion. Based on the findings, that there be 8 a revocation of all licenses covering the 9 premises where intoxicating liguor can be sold 10 and there also be a denial of the license 11 application for license renewal . 12 MR. SCHEIBEL: Okay. Tom? � 13 MR. DIMOND: Then I would go -- I would 14 like to second that motion -- 15 MR. SCHEIBEL: Well, you can� t go any 16 further . 17 MR. DIMOND: No. The conclusion -- now 18 we' re going to -- if I -- I presume that we' re 19 going to start with the ALJ' s conclusions . 20 That' s it. We don' t worry about the 21 conclusions . 22 MR. SCHEIBEL: The question I would ask 23 our attorney, and I think I 'm a little 24 confused about who would be the attorney at � 25 this point but I ' ll ask Ms. McPeak, do you CHRISTOPHER L. COLUMBUS COURT REPORTERS � 152 1 feel based on our findings for discussion this 2 far that the actions -- that the findings 3 warrent the action that' s now before this 4 body? 5 MS . McPEAK: -- I think that ultimately 6 they probably do. What i think you should do 7 though and what you normally do when you take 8 adverse action on a license is specifically 9 refer also to what sections of the legislative 10 code that you find have been violated. So 11 what you've done is you've said we've found � 12 these particular elements to be the facts of 13 this case. Based on that, we believe there is 14 a violation of whatever sections of the 15 legislative code you believe there to be a 16 violation of and therefore we hereby revoke or 17 whatever . So I think that what you've 18 articulated in your findings of fact have 19 support in the legislative code as violations 20 but you need to identify what those violations 21 are. 22 MR. DIMOND: Mr . President, then -- Ms. 23 McPeak, are you suggesting then that we need 24 to have those conclusions of law or is that -- � 25 MS . McPEAK: I don' t think you CHRISTOPHER L. COLUMBUS COURT REPORTERS � 153 1 necessarily need to go through -- 2 MR. DIMOND: You don' t need that. Okay. 3 MS . McPEAK: -- all of the conclusions of 4 law that are present here but I think you do 5 need to identify what -- 6 MR. DIMOND: Let me turn it around. If 7 we adopted the conclusions of law, does that 8 cover -- 9 MS . MCPEAK: Some of the conclusions -- 10 MR. SCHEIBEL: I think Bob stated 11 earlier , i mean one of them is Minnesota � 12 Statute 617 . 246 provides that it' s unlawful to 13 employ or permit a minor to engage in any 14 sexual performance . Is it -- I mean I think 15 Bob earlier was saying that seemed to be a -- 16 ( Inaudible . ) 17 MR. DIMOND: Well -- 18 MR. SCHEIBEL: -- one word and I 'm just 19 throwing -- ( Inaudible . ) 20 MR. DIMOND: Mr . President, I guess what 21 I �m trying to get at, I am not a lawyer . I 22 don� t know what all the statutes are, I know 23 how we've gotten here . I 'm trying to find out 24 how do we make sure we have all of those . 25 things that we've covered in the findings? CHRISTOPHER L. COLUMBUS COURT REPORTERS � 154 1 Does the conclusion do that for us or is there 2 another vehicle? I don� t know. 3 MS . McPEAK: Some of the conclusions in 4 the Administrative Law Judge' s report will be 5 in conflict , would not support your findings 6 because your findings have been changed. And 7 so what I think you need to do is determine 8 what it is that you think has been violated 9 and why you are -- which is why you are 10 imposing or going to impose this penalty. For 11 example, do you find these -- do these � 12 findings that you have set forth support the 13 allegation that the licensee has a bad moral 14 character and therefore is not fit to hold 15 this kind of license? That' s the linkup you 16 need to make, so we've got to go through the 17 conclusions. 18 MR. LONG: Well , Mr . President, if I 19 could chime in for just a second, I know one 20 thing we didn' t deal with in the resolution, 21 and we don' t have to, there are a number of 22 other obvious allegations, you know, with the 23 prostitution and the nuisance issue. We've 24 been focusing a lot of our attention on the . 25 potential felony violation which was the CHRISTOPHER L. COLUMBUS COURT REPORTERS • 155 1 hiring of the minor or permitting the minor to 2 dance . What i think is important for sure is 3 that the motion to revoke even under our 4 guidelines that we adopted, that we've always 5 had the power to revoke a license. I mean 6 that' s always been there for even a minor 7 infraction, we can revoke a license, but our 8 guidelines that have been adopted also state 9 that for a first offense in a felony -- a 10 conduct which would constitute a felony, we 11 don' t have to have a felony conviction, but � 12 conduct which would constitute a felony would 13 call for revocation on the first offense. So 14 that' s the way I 've been looking at this, is 15 that if in fact we find there to be in the 16 findings of fact a violation of Minn Stat 17 617 . 246 , Subdivision 2, which I believe the 18 ALJ found in her own conclusions but just 19 misapplied the law frankly, that then we have 20 the basis for a revocation. And that was my 21 -- I think that supports us. I don' t know 22 where else we have to go, but we can 23 definitely say that, that we do conclude 24 there' s a violation of 617 .246 and that that � 25 based on our guidelines calls for a CHRISTOPHER L. COLUMBUS COURT REPORTERS � 156 1 revocation. 2 MR. SCHEIBEL: Janice, before I recognize 3 you, you know, it seems normally when we go 4 through this -- I don� t think we should rush 5 into this. And, I agree, I think Tom made the 6 point we' re not attorneys and we' re not 7 learned in all the different statutes that 8 have been even brought up today and I 'm not an 9 attorney and can' t even say this applies 10 directly. Could we ask for a resolution to be 11 drafted based on our discussion this far today � 12 that would include those statutes that would 13 appear to apply to our discussion and points 14 brought up and like we had other action that 15 we took earlier today, the final penalty, I 16 guess it' s the penalty or the action would be 17 moved at that time and then our discussion 18 would be based on -- i mean the question I 19 just raised is based on what we've discussed, 20 is there a violation, is it a felony and 21 therefore is this proper action. Maybe we 22 should not rush. Maybe we should have the 23 resolution in front of us, leave that blank or 24 not even have it blank but have it before us � 25 with all of the information in the resolution CHRISTOPHER L. COLUMBUS COURT REPORTERS � 157 1 and take action. A lot of times we do -- I 2 mean we do that and I think -- 3 MS. RETTMAN: Jane should respond to 4 that. 5 MS. McPEAK: I think that it might be 6 better -- what i hope you do and I think do it 7 very briefly is to go through what I believe 8 are the sections of the code that have been 9 alleged to be violated. And you can determine 10 if that is what one of the bases for your 11 action -- for example, based on what you � 12 articulated in findings, do you find also or 13 do you conclude that the licensee has shown by 14 misconduct that the licensee is not a person 15 of good moral character or fitness required to 16 engage in the licensed activity. 17 COMMITTEE MEMBER: Yes . 18 MS. MCPEAK: if you do, then that would 19 be one. Another allegation was -- 20 MR. LONG: Do we have to make a motion to 21 get that on the table or -- ( Inaudible. ) 22 MR. DIMOND: Just go through -- 23 MR. SCHEIBEL: I think we all said yes, 24 so there' s a motion. � 25 MS. SONNEN: I would have to say no. I �m CHRISTOPHER L. COLUMBUS COURT REPORTERS � 158 1 sorry. 2 MS . RETTMAN: But there' s a majority of 3 us that -- 4 MR. SCHEIBEL: Pardon me? 5 MS. SONNEN: I would say no. 6 MS. MCPEAK: You don�t all have to agree. 7 And this will be put into the resolution. I 8 need to get a sense of what the majority of 9 the Council is thinking. 10 MR. SCHEIBEL: Right. And I think when 11 we have the resolution, a motion to delete • 12 that would be in order at that time. 13 MS. MCPEAK: There' s evidently an 14 allegation under Section 409 . 085 that the 15 licensee has failed to maintain order in his 16 place of business . 17 MR. DIMOND: Yes . 18 MR. SCHEIBEL: That' s a yes to that. 19 MS. McPEAK: Yes . 20 MR. LONG: Can I ask one more question 21 before we go any further on these? The ones 22 that Janice rattled off on the findings of 23 fact which we all agreed on really relate 24 primarily to the minor dancing, are we also . 25 going to accept some of the other findings of CHRISTOPHER L. COLUMBUS COURT REPORTERS � 159 1 fact? 2 MR. SCHEIBEL: Wait. Let Jane go 3 through -- 4 MR. LONG: Well , because the question 5 about drugs, before i answer yes to that, I 've 6 got to know whether -- i mean I say yes but 7 are we accepting the finding of fact from some 8 of the other -- 9 MS. SONNEN: Well , she' ll get to that and 10 you' re the first one to vote because you 11 marked the vote first. � 12 MR. DIMOND: It' s your birthday. You get 13 to -- 14 MR. SCHEIBEL: Okay. 15 MS. McPEAK: There' s the allegation or 16 there' s the assertion that Section 310 . 06 B6 17 of the code permits the City to take adverse 18 action against a licensee if the licensee is 19 violating any of the provisions of these 20 chapters or of any statute, ordinance or 21 regulation reasonably related to the licensed 22 activity. 23 MS. RETTMAN: Absolutely. 24 COMMITTEE MEMBER: Yes . • 25 COMMITTEE MEMBER: No. CHRISTOPHER L. COLUMBUS COURT REPORTERS � 160 1 MS. McPEAK: Has there been a violation 2 of Minnesota Statute 617 .246, Subdivision 2? 3 That as you may recall relates specifically to 4 the -- permitting the minor to engage in 5 sexual performance? 6 COMMITTEE MEMBER: Yes . 7 COMMITTEE MEMBER: Yes. 8 COMMITTEE MEMBER: Yes . 9 MS. McPEAK: Now I think we get into some 10 other allegations that were made under -- as 11 violations of the code which would include the . 12 other factual situations about the drugs and 13 so on. And at this point it seems to me that 14 your discussion has all been directed toward 15 the minor dancing. And so whether or not you 16 want to deal with those is -- 17 MR. SCHEIBEL: It' s been my position that 18 we should keep it directed at that and that' s 19 the basis for my decision. 20 MS. RETTMAN: That� s where our emphasis 21 was being placed the whole time, was on 22 accepting all of the findings of fact by the 23 ALJ with highlighting those ones that we've 24 just emphasized. � 25 MR. GOSWITZ : Wouldn� t it be part of the CHRISTOPHER L. COLUMBUS COURT REPORTERS � 161 1 character if we associate selling of drugs and 2 prostitution with it also? 3 MR. SCHEIBEL: Yes . Mr . Bryne? 4 MR. BYRNE: Mr. President, with the 5 indulgence of the Council and Mr . Bresnehan, I 6 would merely like to point out to you Section 7 489 . 086 of the code relating to permitting 8 licensed premises to be used as a resort for 9 prostitutes and in addition either Section 10 609 . 74 of the Minnesota Statutes or 231 . 01 of 11 the legislative code relating to nuisances . � 12 MR. DIMOND�- Mr. President, I think it is 13 important that it all builds, it may not be 14 the key piece but it all builds the case . 15 COMMITTEE MEMBER: It' s part of the 16 picture -- ( inaudible . ) 17 MR. SCHEIBEL: Those have been added at 18 least for the resolution. Okay. Kiki? 19 MS. SONNEN: Are we done listing the 20 code? I haven' t discussed this with Council 21 members because we were under ex parte and i 22 guess we are going to continue to be under ex 23 parte. So if i could just explain my feelings 24 about the final penalty quickly, and, as you � 25 know, I �ve been real hard on violations of CHRISTOPHER L. COLUMBUS COURT REPORTERS � 162 1 liquor license law but it concerns me that we 2 go from an ALJ' s recommendation for a 3 suspended $2 , 000 fine on one hand which in my 4 mind is a slap on the wrist to revocation 5 which is the extreme on the other hand. And I 6 would prefer to have a middle ground here . 7 And I would prefer a 90-day suspension of the 8 liquor license, a revocation of the Class 4 9 Entertainment License which allows the nude 10 dancing to occur, and then the requirement 11 that Mr . Fan work with the neighborhood to 12 resolve -- with the neighborhood and the � 13 police to resolve the prostitution and other 14 incidents in that area. Something on that I 15 was thinking af moreso than going all the way 16 to revocation. 17 MR. DIMOND: Mr . Chairman? 18 MR. SCHEIBEL: I think Tom was next. 19 MR. DIMOND: I � 11 yield to Council Member 20 Wilson. 21 MR. SCHEIBEL: Bill? 22 MR. WILSON: Mr . Chairman, the reason 23 that -- I think the facts support the 24 conclusion. I think the Administrative Law � 25 Judge erred in a number of ways . And part of CHRISTOPHER L. COLUMBUS COURT REPORTERS . 163 1 that error was to remove the licensee from any 2 obligation or responsibility of the conduct 3 that occurred in the establishment. i think 4 that was an error. Clearly the licensee was 5 the employer and he signed the checks. He was 6 involved in the screening and the -- of the 7 dancer so he knew full well of this 8 individual . So he was responsible . There' s 9 no way to get around that. The Administrative 10 Law Judge missed that point. The Judge agrees 11 in the findings that a sexual performance was � 12 carried out but the Administrative Law Judge 13 didn' t go the final step and say therefore 14 this violation of the statute can result in 15 this conclusion. So for those reasons, the 16 Administrative Law Judge is applying law in 17 that direction, the Administrative Law Judge 18 had no alternative but to reach the same 19 conclusion. The third piece was the absolving 20 of the owner with respect to the age of the 21 individual where the law is clear that the 22 hiring of a minor for this purpose , there' s no 23 defense . And there was a clear evidence that 24 the individual did not take reasonable steps � 25 to secure identification, simply made no -- CHRISTOPHER L. COLUMBUS COURT REPORTERS � 164 1 there was no evidence to support that those 2 steps had been taken. So for those reasons I 3 would conclude that the results would give us 4 a different conclusion. I -- that on those 5 facts, suspension is very much in order -- I 'm 6 sorry -- revocation is very much in order . It 7 is to me unimaginable that we can have this 8 kind of conduct and think of a minimum fine or 9 a limited suspension, so for those reasons I 10 reach the conclusion that revocation is 11 appropriate . � 12 MR. SCHEIBEL: Tom? 13 MR. DIMOND. Mr . President, I certainly 14 share Council Member Wilson' s points. I think 15 he� s stated it very succinctly as to what 16 we've got before us. And I think it has to be 17 remembered that the ALJ is not -- the purpose 18 why we've got them is not to give us a 19 recommendation as to the penalty we ask them 20 as an aside to do that, but really they' re to 21 look at the findings of facts and sort through 22 that. They've done that, we�ve taken a look __23 through that and corrected what errors there 24 may have been in that. But I think it' s also � 25 important when we talk about these licenses CHRISTOPHER L. COLUMBUS COURT REPORTERS s165 1 that people do not have a constitutional right 2 to have a license . it is a privilege in this 3 city to have a license. And you have to meet 4 the standards to have that privilege. And I 5 think this is one of those clear-cut cases 6 where it is -- really does not meet that 7 privileged standard. I tell you, if you just 8 go down briefly some of the things that have 9 statements of where an owner feels not 10 responsible for a dancer who is underage and 11 working in this establishment and the actions, � 12 but that owner is the person who owned the 13 firm that hired the person, was there at the 14 interview, watched the audition, paid the 15 checks to the person, was in the facility 16 regularily, as this dancer was a regular 17 dancer, and then to suggest that somehow is 18 not responsible for this employee I think is 19 just plain and simply ludicrous . And that' s 20 just one example of the kind of behavior 21 that' s gone on in this facility and I just 22 don' t think it can be tolerated. 23 MR. SCHEIBEL: I mean I think there' s 24 some good logic in what Ms. Sonnen has � 25 suggested. What we have in front of us is not CHRISTOPHER L. COLUMBUS COURT REPORTERS � 166 1 a whole history but really what comes down to 2 one incident. And I asked the question 3 before, is there enough basis on this. And 4 there' s no disagreement, it sounds like, on 5 the Council what occurred and the seriousness 6 of it. However, revocation based on just 7 these findings, you know, Tom, I disagree . We 8 can�t go on past history. That all may be 9 true but our basis for the decision -- that 10 isn� t the basis for the decision today. And 11 the fact that this is the -- we just have � 12 these findings in front of us, you know, I 'm 13 not sure if there is a basis . And sometimes 14 the easiest thing to do is to take the road 15 that we maybe would like and then very shortly 16 not have anything. And I -- I -- I think 17 there' s some logic and maybe some fairness in 18 what -- as tough as it is, in what Ms. Sonnen 19 suggests. Bob? 20 MR. LONG: Mr . President, the reason I 21 support the motion for rev�cation, I mean it's 22 actually really kind of simple, to me, kind of 23 just an equation for me really, and to me it' s 24 the beauty of using the Hearing Examiner and � 25 having those guidelines in place, i �m sitting CHRISTOPHER L. COLUMBUS COURT REPORTERS � 167 1 here reading the ALJ report. And I think 2 we've gone through it and we've concluded and 3 the ALJ concluded that there was in fact -- 4 that the licensee permitted the minor to, you 5 know, to engage in a sexual performance. That 6 in my opinion and I think what the Council ' s 7 finding is violates the statute which is a 8 felony level offense. And then we don't have 9 to care who the licensee is or the history. 10 We've said in our guidelines that if we find 11 that type of conduct that would constitute a � 12 felony offense, that first time offense is 13 revocation. That' s the equivalent for a 14 three-day suspension for after-hours sale 15 under our guidelines. And we very rationally 16 carefully thought through those guidelines at 17 the time we adopted it and found that this 18 level of offense, if it ever came down the 19 pike, and we did those guidelines long before 20 we knew about the Belmont Club coming through 21 the pipeline, that that would constitute such 22 a grievous offense that that warranted a 23 revocation of a first time offense, just as we 24 said after-hour sales for a first time offense � 25 only warrented a three-day suspension because CHRISTOPHER L. COLUMBUS COURT REPORTERS � 168 1 of the nature of the offense . So I 'm very 2 comfortable in saying that we have done 3 exactly what we've been intending to do, is 4 have this due process, going to the ALJ with 5 the findings and the conclusions. I think 6 that the ALJ as Bill said did not take the 7 step -- she concluded there was a violation 8 but didn' t really outline it as a violation of 9 the statute . And when we read it and apply it 10 to our guidelines, I think we really would be 11 trying to find an exception here . We have to � 12 actually find an exception to our guidelines 13 of why it should be less than a revocation. 14 And i don' t see any basis whatsoever to 15 mitigate the penalty here given the other 16 conduct that' s reported in this particular 17 finding without going back on past history at 18 all but to look at the prostitution which I 19 guess we' re accepting as the findings of fact 20 in Item 17 and the nuisance, the drugs. So 21 all of that to me certainly suggests that the 22 revocation is proper and is part of our 23 guidelines and that this is really not -- this 24 is the first time we've had an offense of a . 25 felony nature to come to us since the CHRISTOPHER L. COLUMBUS COURT REPORTERS � 169 1 guidelines have been in place but I think it 2 does make some sense. The question I guess I 3 have, I just want to clarify, did we accept 4 Finding of Fact No. 17 in the ALJ' s with some 5 amendments dealing with the prostitution in 6 the parking lot? 7 MR. SCHEIBEL: Yes, we did. 8 MR. LONG: We did. Okay. 9 MR. SCHEIBEL: Okay. Any other 10 discussion? Tom? 11 MR. DIMOND: r was going to say, we've � 12 got -- we've gone through the list. Are we 13 going to move approval now? 14 MS . RETTMAN: Do you have enough, Jane? 15 (Brief discussion among Council members. ) 16 MR. SCHEIBEL: Okay. Roll call? 17 MR. OLSON: Long? 18 MR. LONG: Yes. 19 MR. OLSON: GOZwitz? 20 MR. GOSWITZ : Yes. 21 MR. OLSON: Rettman? 22 MS. RETTMAN: What? Did you say my name? 23 MR. OLSON: Yes . 24 MS. RETTMAN: Yes . • 25 MR. OLSON: Sonnen? CHRISTOPHER L. COLUMBUS COURT REPORTERS * �,o 1 MS . SONNEN: No. 2 MR. OLSON: Wilson? 3 MR. WILSON: Yes. 4 MR. OLSON: Dimond? 5 MR. DIMOND: Yes. 6 MR. OLSON: President Scheibel? 7 MR. SCHEIBEL: Yes . 8 MR. OLSON: Six in favor, one against. 9 MR. LONG: Mr. President, just as a 10 matter of procedure, when the resolution comes 11 back before us, I assume that we' ll have the � 12 ability to -- if there' s an amendment 13 necessary to cover something that we thought 14 should have been in there as a result of the 15 discussion today� 16 MR. SCHEIBEL: Yes . 17 MR. LONG: I mean I 'm just thinking -- 18 ( Inaudible . ) 19 MS . McPEAK: That' s correct. I also 20 believe that at that time the licensee' s 21 attorneys, Mr . Bresnahan, correct me if I 'm 22 wrong, but a copy of the resolution in advance 23 of the meeting has to be mailed and the 24 licensee' s attorneys can present exceptions or � 25 comments to that? Or do we not do that any CHRISTOPHER L. COLUMBUS COURT REPORTERS � 171 1 more? 2 MR. SCHEIBEL: I think in this case it 3 should be permitted. 4 (Brief discussion among Council members. ) 5 MR. BYRNE: But, Mr . President, Ms. 6 McPeak, the statute requires that we do send a 7 written copy of the decision by the 8 administrative body to the license holder . 9 MR. SCHEIBEL: Roger? 10 MR. GOSWITZ : If we were to pass the 11 number of days instead of a revocation and we � 12 were to fine him also, Ms. McPeak, and it 13 turned out later that this felony charge was 14 completed and he was guilty of a felony, could 15 at that time we change it to a revocation? 16 MS. MCPEAK: NO. 17 MR. GOSWITZ : Okay. 18 MS. SONNEN: But if he was -- could I 19 expand on that? It' s my understanding that if 20 he is convicted of a felony, he cannot hold a 21 liquor license anywhere in the State of 22 Minnesota so in essence -- 23 MR. GOSWITZ : The point is moot. 24 MS . SONNEN: It' s the same as revocation. � 25 MR. GOSWITZ : Okay. CHRISTOPHER L. COLUMBUS COURT REPORTERS � 172 1 (Brief discussion among Council members. ) 2 MR. WILSON: Just one quick question. 3 Are we under any restrictions on communication 4 in discussing this case? 5 MS. SONNEN: I don' t know that there' s 6 been a final vote. 7 MR. SCHEIBEL: Yes . I -- 8 MS. McPEAK: I believe -- ( Inaudible . ) 9 MR. WILSON: The point is that the media 10 -- I 'm just being very practical . The media 11 is going to be attempting I would think to � 12 interview some of us . I 'm simply asking what 13 are the rules here . 14 MS . McPEAK: Well , your rules say that if 15 it' s been scheduled for an adverse hearing 16 that you' re not to discuss it with each other 17 or with any of the parties or interested 18 persons involved in the matter unless such 19 discussion occurs on the public record during 20 the public hearing or durinq the final 21 deliberations . I don' t know that the media 22 would fall under parties or interested 23 persons. 24 MR. WILSON: I just want to be clear . I � 25 don' t want to be nailed on something -- CHRISTOPHER L. COLUMBUS COURT REPORTERS � 173 1 (Brief discussion among Council members . ) 2 MR. SCHEIBEL: But it' s my understanding 3 there' s some discussion. Until we take final 4 action, the ex parte is in effect. The motion 5 was to prepare a resolution as defined -- 6 COMMITTEE MEMBER: Has not been 7 finalized yet so we still are ex parte -- 8 MR. SCHEIBEL: Right. 9 MS. SONNEN: Talking with the media -- 10 MR. SCHEIBEL: Yes . Because that' s what 11 the motion was I think technically, was to • 12 prepare the resolution for the revocation -- 13 MR. BRESNENHAN: It' s my understanding, 14 Mr . Chairman, that that resolution will come 15 here for final action? 16 MR. SCHEIBEL: That� s correct. 17 MR. BRESNAHAN: Is that correct? 18 MR. SCHEIBEL: That' s correct. 19 MR. BRESNAHAN: At that time I will make my 20 appropriate motion. Do you know when that 21 will be set for? 22 MS . McPEAK: Well, I would expect a 23 couple of weeks. We need some time to draft 24 it and then transmit it to the City clerk. It • 25 has to be done to him a week before it' s on CHRISTOPHER L. COLUMBUS COURT REPORTERS � 174 1 the agenda? Is that correct? 2 MR. SCHEIBEL: Probably -- probably two 3 weeks . Is there a motion for adjournment? 4 COMMITTEE MEMBER: I ' ll move for 5 adjournment. 6 MR. OLSON: Long, Gozwitz, Rettman, 7 Sonnen, Wilson, Dimond, President Scheibel . g * * * 9 10 11 � 12 13 14 15 16 17 18 19 20 21 22 23 24 . 25 CHRISTOPHER L. COLUMBUS COURT REPORTERS 175 � REPORTER'S CERTIFICATE I , Jill Columbus, do hereby certify and state that I prepared a typewritten transcript from the audio-visual recording of the proceedings had before the City Council of the City of St. Paul on the llth day of August, 1988 , In the Matter of the On-sale Liquor License for the Belmont Club. I further certify and state that thereafter and on this date I caused to be transcribed into typewriting the foregoing typewritten transcript of said recorded testimony � and proceedings, which transcript consists of the preceding 174 typewritten pages . I further certify and state that the foregoing typewritten transcript of said recorded testimony and proceedings is true and correct to the best of my ability. Said transcript is being delivered this 24th day of October, 1988 , to Counsel for the Appellant. � ;J LL COLUMBUS ourt Reporter Dated this 2��day of October, 1988 . • CHRISTOPHER L. COLUMBUS COURT REPORTERS TELEPHONE 803 COMMERCE BUILDING ( 612 ) 224-5415 ST. PAUL, MINNESOTA 55101 .A-, � �- i �� - ��.�� ,�-,, _ , � _ � � 1;.i:t�' w.:si.: g:x"�'a F��.;..tf_ ��,;��.,r�.;�r�"� �„} C1�.;�i;��it� ; #,�f:i3-t' ��..��r�_' �°9^��.'ti�::, � j � ��ib_�°'��f�CE:::L? �:'�a`: i....�':�F�'.t t ti��" . ._ t i�'se��4,�W r�,�� :i.3,�;1.�:!!"��4�'� ± �.��...�a-�^t��.��1�� `��;�S4�,i'_ �: iy':i�ltr-�, :.>t..�''�'�`st..S;.S:� �.a�:..�•L,�,_,� �� i1f��r��:�« �. �. .��a�w��v I � " � � � +:�� s��.��,�"�,i{;ws= �}�:��:.'�!° r� s�k�:�:k:��i �,��' '�� - § g ,° fk�`Gt:)a.�l�� , _�.�_... _.._.. ... _..._...._.._... _�.�._ . .._.._._�,_ . .... ._. .�. .._...... ........ ... . .. .. ... .. _,.....,� ....� r r i�)i 9i f i�t. ;a;)X�£.}'�?`..� � ti:�('t�, i„il� I �,: � i'- �1..:i1'•�t:s 1"+.:..�. #'�.y�':' i�F2.f�' t4� L.u.��l 1��P?d��f$'d� � I i:; r�;.�.�;�:-�(`�!°:� � ):+R�: tt�4t•�,i•:��t;'�� #:'+' ��5��•.:a�:� � � ��5 ,,;:wj, �,.l � 5 .��w r �p �.I� � ��..,.�t...r;'tl.:3� .ts �' �.:�i.�.�. . 2 -`.I"t ..J'S'�f1.s . .....�.._....,......e..,.......�..................... ' 1 � ��4�r_. '�.,�LJ�"�: r:-�,�4 �.,/�.> � � ..� 0 � � ., i t,l...€:.:,11k��;;i TY�j F'�i..4r:i�.9i��f" j'�"„�'.�C 4i''�"''�:�.� .,_._,....._._ .,.........,...,,.. _ � 4 . ~._ _ f, C�t..r i� f:�F f , 6�:.ff�-i�t�:?�;�d'�'�t ?;?t�a� � l E''•�� ":�; ` ik 4,..t"i... .. � . � � ' '� � f' � � � f i` , �ACH AND RETAIN THt3 STATEMENT TMC ATTAClRED GHtCK 16 IN rAYM�NT OF ITCMi DE�CltlKD KL�W� TMOM�ON � i�LL16� L�• IF NOT CORRlCT PLlA�E NOTFV U6 PI�GM/rLY. NO RlCCl/f ou�neo. DELUXE - FORM DVC-3 V-7 �;�I�r -�e.e.- C-� �� - �� .P� _L /�� , , �' "ZlY ��r��" oT (..�'i( -►��Y�C{�( � � . - ��y�� RECEIVED COCHRANE& BRESNAHAN,P.A. SEP i 219aa � ATTORNEYS AT LAW �►;Y CLERK 24 EAST 41h STREET SAINT PAUL,MINNESOTA 55101-1099 ' JOHN A.COCHRANE JAMES R.BRESNAHAN TELEPHONE STEWART C.LOPER 812l298-1950 MARVG.SEVMOUR CABLEADDRESS:COBRA HONALD D.ALLEV' BRIAN N.TODER" S@ptemb@t• �2� �(38$ 'arto etlmrrrsd�n Teyaa "'Also aemrctee m Coloratlo HAND DELIVERED OfPice of the City Clerk Room 386, City Hall 15 W. Kellogg Blvd. St. Paul, MN 55102 Attention: Albert Olson ' Re: MFL, Inc. et al. v. City of Saint Paul et al. Dear Mr. Olson: Enclosed herewith for filing please Pind a copy oF Petition Por Writ of Certiorari, Petitioners' Statement oF the Case, Writ oP Certiorari, Motion for Stay on an Expedited Basis and APPidavit oP Mary F. 5eymour and original Cost Bond. Please also find a eheck in the �mount of Ten Dollars ($10.00) for Piling Fees and a copy oP the FiPty Dollar ($50.00) eheek as and for filing fqes at the Minnesota Court of Appeals. Yours truly, COCHRANE � BRESNAHAN, P.A. By° /��/�� [ Mary F. Seymour MF5/ple Enelosures ��I � DO �SD- D � �� R 13 gS� � FIRST BANK MINNEAPOUS 8 4 3 8 COCHRANE&BRESNAHAN, P.A. FIR9T BANK PLACE ; ATTONNEYS AT LAW MINNEAPOLIS, MN 65480 . � 24 EAST 4TH 3TREET PH.812-298-1960 17-2-i10 ..... ! ST.PAUL,MN 65101 � - �� . � �� PAY Ten and NO/100----^--------^--------^-------------------------------- ------- i TO7}� DATE AMOUNT �p� 9/12/88 10.00 f� -;,�� City Clerk �� . C 3 t y O P S t P 3 U I. � NOT VALID AFTER 90 DA`!S u'008438u' '�:09 L0000 2 2�: 60'c 330 376n' ��'' /y��2� . RECEIVED MINNESIaTA APPELLATE �:.�UBTS OCT 1 �1989 (h1.� ) 2y7-1y04 :�;'_', � '� .�.... APPELLATE �_C�URT Nci. I=:4-PQ-f y;�? FILE Lc_�i,�ATIc_ii� MFL, IY1C . , �3/b/a The Belmoi�t �''lub, et al . , Relators , vs . Gity of St. Pa�zl , et al . , Respoilr3ents. � Receive�3. from the Ag�pellat,e c_ourts of the ltate of Minnesota, the followii�g ori��ix�al files at��3 e:chi�,its ix� the above entitler3 matter: District s_ourt filets ? an�3 e•r.hibits tsee att�che�3 copy of the Trial clourt recei�t) . NGTE: When ari��ix-►al aY��i copy vf transcrigt are forwarde�3 t�y the C:lerk of the Trial c_ourt , the ari��ir�al ��oes to the �upreme c�aurt Law Library at the conclusion of the c�se. Dater3: PLEASE S�IGN AND BETURN COPY �F RECEIPT �.:��URT AI7M I N I�TRAT�aR Ey: . DEPUTYlASSISTANT �. �� I�[INNES4TA APPELLATE �G�pURTS ( h'1�) �y7-1�04 APFELLATE C•C�URT N��. c14-��-1�?8 FTLE L�JC_ATI�N MFL, Inc . , �3/b/a The Ee2mor►t �;lub, et al . , Relators, vs . �:i ty of �t . Paul , et a 1 . , Res�on�.erits. * Received €ram the Ap�,ell�te c_:ourts of the State of Minnesota, the followin�7 ori�3ina1 files ax�d e:chiY�its iz� the above ezititle�3 matter : District ��ou.rt filefs ) ax�d e::hibits (see attache�3 copy of the Trial �iourt recei�,tl . Ni_�TE: When ori��inal. ax��3 coF�y of trax�soript are forw�r�3ed t�y the s�lerk of the Tr i a 1 clourt , the or i��iz�a 1 ��oes to the S�.F�reme slaurt Law Li�rary at the COY1C 1 L151 OT] of the case. Date�3: PLEAS�E SIGN AND BETURN COPY OF RECEIPT ��«URT AI7M I N I STRATc�R 8y: DEPUTYlASSISTANT � i/�- ' ��'wC � , .� aA`N**MO��w� CITY OF SAINT PAUL y;� �1 _"�� '•�'� OFFICE OF THE CITY CLERK 9 =0 •i g• � ��'p �� ;+, �°� ALBERT B. OLSON, CITY CLERK ��'°m„m��`a�-''�� ,p`` (� ,E— � 386 City Hall,Saint Paul,Minnesota 55102 GEORCE LATIMER Iv L, r'� 612-298-4231 MAYOR �-�.�� - , - gg- ��ag �� INVENTORY OF THE BELMONT CLUB LICENSE REVOCATION FILE Certi fied Copy of St. Paul Council Resolution (C.F. 88-1426) and Council Findings & Conclusions revoking license Copy of August 11, 1988 City Coucil rr�eting minutes Findin�s of Fact, Conclusions and Recommendation of the Administrative law Judge including all evidence submitted at hearing and transcripts of the hearing Respondent's Objections to City Council 's Proposed Findings, Gonclusians & A�dverse Action License Inspector's Exception to Findings, Gonclusions and l�comnendations City's Brief in Response to Nbtions and in Final Argument Respondent's Exceptions, Nbtions, Nl�morandums and Final Argument Gost bond for Certiorari Petition for Writ of Certiorari Statements of the case of petitioners Writ of Certiorari Nbtion for Stay on an expedited basis Affidavit of N�ry F. Seymour TRANSMITTED TO STATE OF MINNESOTA COURT OF APPEALS ON R EC EI VED BY ��'�' � /�`�(� �� : t4eDUN��.. .� RECEIVED ��. � .:F�� AUG 1 Q 1988 `��.;��. STATE O F M I N N ESOTA CITY CLERK OFFICE OF ADMINISTRATIVE HEARINGS FIFTH FLOOR,FLOUR EXCHANGE BUILDING 310 FOURTH AVENUE SOUTH RECrl1/�� MINNEAPOLIS, MINNESOTA 55415 (612)341-7600 OCT 1 �1989 August 9, 1988 St. Paul City Council Attn: Albert B. Olson City Clerk . 386 City Hall St. Paul, Minnesota 55102 Re: In the Matter of the Liquor License of the Belmont Club; OAH Docket Nos. CITY-88-021-CG and 53-2101-2427-6. Dear Mr. Olson: Enclosed are additional file documents in the above-entitled matter which I am returning to you to be incorporated into the official record file in this matter. Sincerely, � " -c�rua..J J�l G�'��'� (/ Virginia R. Halling OAH Secretary AN EGIUAL OPPORTUNITY EMPLOYER ��- /��G LAW OFFICES I�;UR2N[AN, GRANT, MA1�T1�►HAN, BI,UTH & BA R T�F,R A PARTNERSHIP OF PROFESSIONAL CORPORATIONS 2�0� Stevens Avenue South Minneapolis, Minneaota 5540� (61�)871-900� Marc G. Kurzman RECEIVED M�� Carol Grant James H. Manahan Linda M, Oja1a AUG 101988 Joseph P. Bluth James E. Moon Ann B. Barker CITY CLERK (50�>3s�-5ssi August 5, 1988 George Beck Office of Administrative Hearings Fifth Floor, Flour Exchange Building 310 Fourth Avenue South Minneapolis , MN 55415 Re: Belmont Club; � City-88-021-CG, 53-2101-2427� Dear George: Enclosed are some additional file materials in the above- entitled matter. These include Respondent' s Exceptions, Respondent' s Notice of Motion and Motion, liquor license and application for renewal, Respondent' s Reply Memorandum, and city opinion letter. Sincerely, C�'�G�(.,�i�+�� Carol Grant Administrative Law Judge CG/tw enc. �--r . " i��VED au� s �ss8 Attorneys admitted to practice in Florida, Minnesota and New York �T�T�VE HEARINGS ! � . City-88-021-CG 53-2101-2427� � STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of the On-sale Liquor License for the Belmont Club RESPONDENT'S EXCEPTIONS TO FINDINGS OF FACT, � CONCLUSIONS AND RECOMMENDATION � I. INTRODUCTION Without waiver of any rights that Respondent may have in these and other proceedings, Respondent has no ob,jeetion to the adoption by the City Council of the City of St. Paul of the Recommendations made by the Administrative Law Judge in this matter. These exceptions are submitted for the purpose of correcting errors in the Findings of Fact, Conelusions and Memorandum and for the purpose of preserving Respondentts rights on appeal in this matter (if such an appeal is taken) and Respondent� s rights in other proceedings. The Administrative Law Judge has not considered any of the constitutional arguments raised by the Respondent herein and has made her Recommendations "without pre�udice" to the Respondent raising such arguments ��in the course of judicial review." Aecordingly, Respondent hereby expressly reserves the right to raise any and all such issues upon �udicial review of these proceedings, if any. II . EXCEPTIONS TO FINDINGS OF FACT A. Finding No. 1 : . . .Ms. Osterman received $250-300 per week salary from the Belmont and another bar to manage the dancers. On March 15, Nancy Osterman, the manager . of Dancing Angels, paid David Fan $20 and thereby purehased the stock of Daneing Angels, along with $15-18 in liabilities. Now she receives approximately $100 per week of the $1 ,842 per week transferred to Daneing Angels from the Belmont. The rest of the $1 ,8�2 is used to pay daneers. These findings are ineorrect in the following partieulars: 1 . The uncontroverted testimony elearly indicates that prior to Ms. Osterman� s purchase of Daneing Angels, Inc. , her salary was paid by Daneing Angels--not the Belmont and another bar. Q. Previous to the transfer, had you received a salary from Daneing Angels? A. From--yes . Tr. at 254. 2. The uncontroverted testimony clearly indicates that, prior to Ms. Osterman� s purehase of Dancing Angels, Ine. , her salary as manager was $250-300 per week for everything she did for Dancing Angels, Inc. All cuatomers paid Daneing Angels, Inc.--not �ust the Belmont and another bar. Q. What was your total salary for-- A. For everything? The bars in Wiseonsin? Q. --everything that you did for Daneing Angels before the transfer. A. 250-300 a week. Tr. at 25�. 3. The uneontroverted testimony elearly indieates after Ms. Osterman' s purehase of Dancing Angels, Ine. , she received t�[a]bout $100 more a week'� in salary. Tr. at 254. Emphasis added. -2- ��i�� . 4. The uneontroverted testimony clearly indicates that Ms. Osterman, as president and sole ahareholder of Daneing Angels, Ine. , pays other expenses, sueh as workmen� s eompensation insuranee, out of the fees received by Dancing Angels, Inc. Tr. at 252. 5. The uneontroverted testimony clearly indieates that Ms. Osterman also paid one-half of the attorneys' fees in the purchase of Daneing Angels, Inc. Tr. at 256. B. Finding No. 8: . . .She [T.D.M. ] was hired by David Fan. T.D.M. was hired and paid by Daneing Angels, Inc.--not by Mr. Fan. Plaintiff� s Exhibit 3; Respondent� s Exhibit A. In addition, the decision to hire T.D.M. was made by Nancy Osterman, as manager of Dancing Angels, Inc.--not by Mr. Fan. Ms. Osterman arranged the audition and asked T.D.M. her age. Tr. at 90, 93. David Fan did not talk to T.D.M. during her audition. Tr. at 92. See also Tr. at 99• Ms. Osterman was present when T.D.M. signed her contract with Daneing Angels, Ine. and Mr. Fan had presigned the eontract in 1985. Tr. at 240-41 . Furthermore, Ms. Osterman testified as follows: Q. Are you the person who interviews all the daneers? A. Yes. � Q. And hires all the dancers? A. Yes. Tr. at 241 . _3_ Q. . But durin the time that ou were 6 Y manager, were you doing all the hiring of the girls, basically? A. Yes. Tr. at 259. C. Finding Number 14: . . .David Fan was present in the Club on Feb. 2, 1988. . . .While daneing, T.D.M. exposed her pubic areas and buttocks by lifting her skirt and by squatting while facing males seated at stageside. While squatting, T.D.M. performed several pelvie thrusts and spread her legs in sueh a manner as to expose her inner vaginal area. During a second song, T.D.M. returned to the stage wearing only the top of her costume and continued to danee in a similar manner, including the fondling and touching of her breasts and genital area. During a third song, T.D.M. returned to the stage wearing only high-heeled shoes. She then continued to danee as previously described and also lay on her back with her feet on the stage, while bending her knees at a 90 degree angle. In this position, T.D.M. bridged her back spread her legs, and performed numerous pelvie thrusts toward the patrons. This maneuver was aecompanied by the touching and fondling of the breasts and genital area. 1 . There is no evidenee in the record to support a finding that Mr. Fan was in the Belmont on the night T.D.M. was arrested on a warrant. Indeed, the only evidence as to whether Mr. Fan was in the Belmont on the night of T.D.M. 's arrest is to the eontrary: Ms. Osterman: Q. Do you know if Mr. Fan was on the premises on the night that [T.D.M. ] got arrested? A. No, he wasn� t. Tr. at 257. -4- 2. The only evidenee to support the remainder of this ehallenged Finding was Offieer Roger� s police report. (Plaintiff� s Exhibit 5) . This police report was erroneously admitted into evidenee in contravention of Minnesota Statutes §364 et seg. Minnesota Statutes §36�.04 provides, in relevant part: The following criminal records shall not be used, distributed, or disseminated by the state of Minnesota, its agents or political sub- divisions in connection with any application for publie employment nor in eonnection with an application for a license: ( 1 ) Records of arrest not followed by a valid convietion. . . . Furthermore, Minn. Stat. §364.07 provides: The provision of seetions 364.01 to 364. 10 shall prevail over any other laws and rules whieh purport to govern the granting, denial, renewal , suspension, or revocation of a license or the initiation, suspension, or termination of publie employment on the grounds of convietion of a erime or crimes. In deciding to grant, deny, revoke, suspend, or renew a license, or to deny, suspend, or terminate public employment for a lack of good moral character or the like, the hiring of licensing authority � consider evidence of conviction of a crime or erimes � only in the same manner and to the same effeet as provided for in sections 36 01 to 3 . 10. Noting in seetion 3�.-01 to 3��. 10 shall be construed to otherwise effect relevant proeeedings involving the granting, denial, renewal , suspension, or revocation of a license or the initiation, suspension, or termination of publie employment. Emphasis added. There has been no evidence submitted that Mr. Fan or MFL, Ine. has ever been convicted of a erime. In each case that has dealt with this issue sinee the enaetment of this statute, -5- the reports dealt with convictions or were not considered. See e.�. , Vruno v. Schwarzwalder, 600 F.2d 124 (8th Cir. 1979) (guilty plea) ; Matter of Minn. Joint Underwriting Ass'n. , �08 N.W.2d 599 (Minn. App. 1987) (guilty plea) ; Miller v. City of St. Paul, 363 N.W.2d 806 (Minn. App. 1985) (eonvietions) ; Godfather, Ine. v. City of Bloomington, 375 N.W.2d 68, 71 (Minn. App. 1985) �"extraneous matters were not litigated and would not be an appropriate basis for license denial ." ) ; Peterson v. Minneapolis City Couneil, 274 N.W.2d 918 (Minn. 1979) (convictions) . Furthermore, Officer Rogerts report formed the alleged _ faetual basis for the felony charges currently pending against Mr. Fan. As sueh, it elearly fits within Minn. Stat. §13.82(2) (e) as �� . . .other legal basis for aetion; §13.82(2) ( 1 ) "The manner in which ageneies reeeived information that led to the arrest. . ." ; and §13.82(4) (f) ��A brief faetual reconstruetion of events associated with the action[ ]". Therefore, it is inappropriate to charaeterize this report as simply "inaetive investigative data.�� Thus, the admission of Plaintiff� s Exhibit 5 over Respondentfs ob,jeetion is clearly erroneous and the City Couneil must ignore Officer Roger� s report. 3• The only admissible evidenee coneerning the content of T.D.M. � s dance was Ms. Ostermants testimony: Q. Have you seen the police report that was entered into evidence as to what [T.D.M. ] did on the danee floor? A. Yes, I did. -6- Q. In the audition that you had at the time that she had auditioned, and at the time that Mr. Fan, apparantly, was at this, did she do any of those things described in that police report? - A. No. She didn� t that night either, because I was there. I never had trouble with her on that . Tr. at 260. Therefore, there is no admissible evidenee to sustain the Finding concerning the content of T.D.M. ' s danee on the night of her arrest on a warrant. 4. If the City Couneil determines that Plaintiff� s Exhibit 5 is inadmissible despite Minn. Stat. §36u et seq. , then the report should be held inadmissible under Rule 803(6) and (8) of the Minnesota Rules of Evidence and Rule 1400.7300 of the Rules of the Office of the Hearing Examiner, or it should be afforded very little weight. Officer Rogers admitted (Tr. at 134-135) that Plaintiff� s Exhibit 5 was not made contemporaneously with Ms. Monn� s arrest outside of the licensed premises, but that it was made fourteen days after her arrest. The manner and eireumstanees under whieh Officer Roger� s report was procurred indicates a lack of trustworthiness, as follows: a. Aecording to Officer Roger� s testimony, his first report did not deseribe the daneing. Tr. at 141 . As a police officer with over five years of experience, it is reasonable to infer that if Officer Rogers had observed a person dancing, that he had reason to believe was a minor, and the content of that dancing consisted of an alleged "sexual performanee,�� he would have included it in his initial report. -7- It was only after another offieer had a conversation with the City Attorney, that the other offieer advised him that they [the City Attorney] needed and wanted a supplemental report. This strongly suggests that the purpose of the second report was not to "record matters observed pursuant to duty imposed by law" but to form a ��faetual�� basis for other purpose�. Thus, this Tribunal should conelude that the subsequent report, Plaintiff� s Exhibit 5, ��lacks trustworthiness" and is not ��the type of evidence on whieh reasonable, prudent persons are aecustomed to rely in the conduct of their serious affairs." b. Officer Rogers testified that he was �0 to 50 feet away from the dance studio and was on the opposite side of the bar at the time of T.D.M. danee. Tr. at 130, 135. Even if his view was unobstrueted by bartenders or patrons sitting at the bar, sitting at the rail or moving between him and the glass panels (whieh lacks credibility) , it is unlikely that anyone could see so far with sueh clarity. Therefore, Officer Roger� s report should be held to be inadmissible or be given very little weight. D. Finding Number 17: . . .Offieer Lutehen believes he has made one arrest in the Belmont parking lot . . . .He has never made an arrest inside the bar for solicitation, but he has made 20-25 arrests outside the bar for solieitation inside. 1 . An additional Finding should have been made concerning the arrests made by Officer Lutehen for prostitution- related activities in the surrounding area. Officer Lutehen -8- ��-�� testified that he believed he made the following arrestss one ( 1 ) in Lendwaysts lot, two (2) in Skipperfs lot, twenty to thirty (20-30) on the corner of Sherburne and Dale, twenty (20) on University and Dale, as well as numerous arrests at St. Albans and Sherburne and Kent and Sherburne. Tr. at 162-163. 2. The Finding related to arrests made as a result of solicitation inside the Belmont is not supported by the evidence. Officer Lutehen testified that he had never made an arrest for prostitution-related activities inside of the licensed premises (Tr. at 1�9, 158)� because '�I didn� t have sufficient evidence to make an arrest within the bar[ ]" (Tr. at 159) . Indeed, there is no evidenee that the alleged solicitation aetually took place in the Belmont. It could have taken place in the street or on the sidewalk. Tr. at 150. There is no testimony by Officer Lutehen that he actually observed the solicitation within the Belmont and then arrested the parties while they were performing the ��triek" or that the parties admitted that the solicitation took place within the Belmont. 3• An additional Finding should have been made concerning the neighborhood witnesses. Each of the neighbors testified that they knew that they were moving into an area known for prostitution. Melendez, Tr. at 36; Eisenmenger, Tr. at 124. -9- III . EXCEPTIONS TO THE CONCLUSIONS AND MEMORANDUM Because the Administrative Law Judge did not consider Respondent' s constitutional challenges in �aking her Conelusions and Recommendations and because the Administrative Law Judge has expressly preserved those challenges for the �udicial review, if any, of these proceedings, Respondent (without waiver of any constitutional argument that was previously raised in these proceedings) will not repeat those constitutional challenges here. Respondent does, however, take exeeption to the following determinations contained in the Memorandum. A. "Permitting�� A "Sexual Performanee" : 1 . The City failed to present any admissible or eredible evidence that T.D.M. actually engaged in a "sexual performanee.'� Supra at 5-8. 2. The City has failed to present any evidenee that Mr. Fan or MFL, Ine. (the licensee) intended that T.D.M. engage in a "sexual performanee." Indeed, the evidence is to the contrary. T.D.M. did not dance as deseribed in Officer Roger�s report at her audition; T.D.M. had not danced like that before; and T.D.M. did not danee in that manner on the night in question. Tr. at 260. Furthermore, the Daneer Agreement that was signed by T.D.M. (Respondent� s Exhibit A) requires that the dancers -10- �� l �� abide by all applicable laws, statutes and regulations governing exotic daneing; there were and are signs in the dressing room prohibiting that type of activity (Respondent�s Exhibit D) and the daneers were and are periodically instrueted about what is contained in the St . Paul Legislative Code concerning exotie dancing (Respondent� s Exhibit C; Tr. at 236-237) . 3• The City has failed to present any evidence that Mr. Fan was present the night of T.D.M. ' s arrest. Indeed, the evidenee is to the contrary. Supra at 4. 4. The City has failed to present any evidence that Mr. Fan or an employee of MFL, Inc. actually saw T.D.M. engaging in a "sexual performance." 5. The City has failed to present any evidence that T.D.M. or any other dancer had ever engaged in a "sexual performance'� in the past. Therefore, there is insuffieient evidence from which the Administrative Law Judge eould draw any adverse inferences coneerning ��permittingt� a ��sexual performance." B. Section 310.06(b) (9) : As the Administrative Law Judge correetly points out, Seetion 310 of the St. Paul Legislative Code does not eontain a provision for viearious liability. As the uneontroverted testimony establishes, Mr. Fan was not in the establishment when T.D.M. was arrested. Tr. at 257. Therefore, Section 310.06(b) (9) is inapplicable. See also supra at 4 . Furthermore, the City has failed to present any evidence that Mr. Fan lacks moral charaeter or fitness. There -11- was no evidence presented that could conceivably prove, under any standard of proof, that Mr. Fan intended to hire a minor or that Mr. Fan knew, encouraged or eondoned "sexual performanees. " The evidenee is to the contrary. Supra at 4-8. The City presented no evidence that Mr. Fan knew, eneouraged or condoned the use or sale of drugs, disrespect or non-cooperation with the police, or prostitution or prostitution-related activities. The evidence is to the contrary. E.�. , Tr. at 75-76, 13$-139, � 213-214, 225-227, 273. Finally, Mr. Melendez testified that Mr. Fan has always been a gentleman, has been willing to work with the community groups (Tr. at 48) , but the community is unwilling to work with him because of the nude dancing off from the licensed premises (Tr. at 58-59) . Kathleen Zaehary' s eharaeter testimony is undisputed (Tr. at 261 ) . Therefore, the City has failed in its burden of proof under Seetion 310.06(b) (9) . IV. CONCLUSION Based upon the record of these proceedings before the Administrative Law Judge and upon the Findings of Faet, Conclusions and Recommendations of the Administrative Law Judge as modified by the Exceptions set forth herein, Respondent respeetfully requests that the City Council for the City of St . Paul: -12- 1 . Amend the Findings of Fact consistent with the Exeeptions set forth herein; and, 2. Adopt the Findings of Fact (as amended) and Conclusions as submitted by the Administrative Law Judge; and, 3. Take no adverse action against the license or the licensee; or, 4. Adopt the Recommendations set forth by the Administrative Law Judge. Respectfully submitted, COCHRANE & BRESNAHAN, P.A. By . Ja es Bresnaha A ty. .D. No. 1 307 Mary F. Seymour Atty. I.D. No. 9945� 24 East Fourth Street St. Paul, MN 55101 (612) 298-1950 Attorneys for Respondent Dated this 2gth day of July, 1988. -13- ��f''-,/`��' � � k' 1 STATE OF MINNESOTA AFFIDAVIT OF SERVICE BY MAIL COUNTY OF RAMSEY Patricia Christ�aener, being duly sworn, says that on July 29 , 1988, in St. Paul, Minnesota she served the attaehed Respondent� s Exeeptions to Findings of Faet, Conelusions and Recommendations, together with a copy of the Affidavit of Service, upon the City Clerk for the City of St. Paul/Albert Olson, the City Attorney for the City of St. Paul--Civil Division/Phil Byrne, and Ms. Carol Grant e/o Kurzam, Grant, Manahan, Bluth & Barker, by depositing a copy thereof, properly enveloped, with postage prepaid, and addressed to them at: Office of City Clerk City Attorneyst Office 386 City Hall 647 City Hall 15 W. Kellogg Blvd. 15 W. Kellogg Blvd. St. Paul, MN 55102 St. Paul, MN 55102 Atten: Albert Olson Atten: Philip Byrne Ms. Carol Grant c/o Kurzam, Grant, Manahan, Bluth & Barker 2404 Stevens Avenue So. Minneapolis, MN 55�04 the last known address of sueh persons in the post-office at St. Paul , Minnesota. C�� . �,��. �� C rPatricia Christ�aener Subseribed and sworn to b e f o r e me t h i s Z�t 11 ��MnnMM/,�/,�nT/,N;�;�n��,�,�,,�„1�,�� ,_.�� DAWN J. PROUL,X q p (\� NOTARY PUBLIC-MINNESOTA day Of July, 19�U• � `�►�.. RAMSEYCOUNTV My Comm.Expire�Msy 16,19�1 r vWVWVVVVwwVVWyVWVVWWyyyyyy� Notary P lie , � � STATE OF MINNESOTA ) County of Ramsey ) ss. CITY OF SAINT PAUL ) I� . . . . . . Albert.B:.O1son. .. . ... ... . . . . . . . ..City Clerk of the City of Saint Paul, Minnesota, do hereby certify that I have 88-1426 compared the attached copy of Council File No. . . .. .. . . . .. . .. . . . . . as adopted by the City Council. . . . . ,September.6 , . . . . . . . . .�9 88. . w . and approved by the Mayor. . . . . .. . . , ,September .7 . . . . . . . , ,,19 88. . . . with the original thereof on file in my off ice. I further certify that said copy is a true and correct copy of said original and the whole thereof. WITNESS my hand and the seal of the City of Saint Paul, 26th September 88 Minnesota this . . . . . . . . . . . . . . day of . . . . . . . .. .. . . . . . . .A.D. 19. . . . . � r 1 � � • • • • • • .a. • • •. ..�i�`�:':-� • • • • •. _• • . • • • • • • City Clerk. WMITE - CITV CLERK COU�1C11 /,, PINK - FINANCE B�UE�r -�iAVORTMENT GITY OF SAINT PAUL File N0. � -��°2`� � � Cou 'l Resolution ��'4 , � q ; Presented By � Referre o Committee: Date Out of Committee By Date RESOLVED, that the On Sale Intoxicating Liquor, Sunday On Sale, Restaurant licenses (as well as the Entertainment license to the extent it is applicable or effective in the premises licensed for sale of intoxicating liquor) , held by MFL, Inc. and Clayton Club, Inc. d/b/a the Belmont Club, for the premises at 615 University Avenue in Saint Paul are hereby revoked, said revocation to be effective at 12:01 A.M. on the day following publication of this Resolution. This Resolution and the action taken herein is based on the entire record of the proceedings herein, including the pro- ceedings before the Administrative Law Judge on May 24 and 25 , 1988 , the transcript of such proceedings, the documents and exhibits introduced therein, the arguments of counsel for the parties on August 11 , 1988 , and their written exceptions and arguments, and upon the deliberations and findings of the Council in open session. In arriving at its decision, the Council adopted in whole or in part the findings of fact of the Administrative Law Judge, together with amendments thereto, as well as certain conclusions , all of which are attached hereto as Council Findings and Conclusions. Other findings or conclusions of the Administra- tive Law Judge are not adopted. FURTHER RESOLVED, that a copy of this Resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and to counsel for the licenseholder, pursuant to Minnesota Statutes 1976 , Section 14.62, Subd. 1 . COUNCIL MEMBERS Requested by Department of: Yeas Nays Dimond Lo� In Favor Goswitz Rettrrtan sc6e,be� A gai n s t BY Sonnep�-+ �Ison Adopted by Council: Date sLP �� '�� Form Approved by City Attorney Certified P s � Council tar BY�'L�" �' ��-`" ' ��c— �'//8 /g8 B, ��,;"�""\ 5 �+ � a�� " � j � Approved by Mayor for Submission to Council Approved b 1Aavor ate � By By _ P�y;�� S E P 17 1988 , � ,i � � : ��-�� COUNCIL FINDINGS AND CONCLUSIONS 1. The Notice of Hearing dated May 3, 1988 was proper in this matter and all procedural requirements of law or rule have been fulfilled by the City. 2. An on=-sale liquor license is held by MFL, Inc. d/b/a the Belmont Club. MFL, Inc. is owned by an individual named David Fan. Until March 15, 1988, David Fan also owned Dancing Angels, Inc. (City Ex. 7) . Nancy Osterman had been manager of Dancing Angels, Inc., which corporation supplied dancers to a variety of bars in Minnesota and Wisconsin. Ms. Osterman received $250.00 = $300.0g per week salary from the Belmont and another bar to manage the dancers. On March 15, Nancy Osterman, the manager of Dancing Angels, paid David Fan $20.00 and thereby purchased the stock of Dancing Angels , along with $ 15. 00 = $ 18. 00 in liabilities. Now she receives approximately $100.�10 per week of the $1, 842.0�! per week transferred to Dancing Angels from the Belmont. The rest of the $1 ,842. 00 is used to pay dancers. 3. On November 1P1, 1987, at approximately 101: 04J p.m., Officer Dennis Meyer observed Belm ont Bar em ployee Randy Glen Pape in a silver pickup parked to the rear of the house west of the Belmont. A female was seated in the passenger seat next to Randy Pape. Five minutes later, Officer Meyer drove back through the lot and saw Randy Pape in the pickup with a black male passenger. When Officer Meyer approached the pickup, Pape attem pted to hide som ething in the from seat. Officer Meyer subsequently seized a bag of marijuana sticking out of Pape's pants pocket. The bag was 1 1/2 inches in diameter , and 3 or 4 inches long. An additional three bags of m arijuana and two Thai sticks were found in the pickup glove box. Per Belm ont Bar policy, Randy Pape was suspended from employment for a period of time as a result of this involvement with drugs. 4. In January or February, 1988, Officer Meyer again saw Randy Pape with a dancer in the Belm ont Bar parking lot. He also observed a sm all tray with a green leafy substance and cigarette paper. The dancer admitted that the marijuana was hers. Per Belmont Bar policy, the dancer, Debra Fox, was suspendec3 from employment for a period of time and was fined. Randy Pape was dismissed. 5. The sale of drugs by Randy Pape occurred when Randy Pape was off duty. After these incidents, an attendant was hired to monitor the Belmont parking lot six or seven nights per we.ek. 1 . ��.?� , 6. On January 14, 1988 at approximately 9: �l0 p.m., Officer Dennis Meyer observed two women loitering on the corner of Dale and Sherburne. One of them walked into the Belmont parking lot and began approaching men leaving the bar as they walked to their cars. She engaged one man in converstaion, but nothing came of it. 7. As Officer Meyer approached to 60 feet northeast of the bar , in the parking lot, bouncer Jerry Meinhofer yelled at him "This shit' s gotta stop ... You can' t be doing this shit here ... I want you out now." 8. Shortly after Meinhofer' s outburst , the Belmont Bar manager apologized profusely for his behavior to Officer Meyer. Management had never tried to discourage the police from patrolling the parking lot, and indicated they would cooperate with anything the police wanted done. Two hours later, Meinhofer also apologized to Officer Meyer , although somewhat less enthusiastically. Meinhofer no longer works at the Belmont Bar . 9. In late November or early December , 1987, a thirteen year old having initials T.D.M. applied for em ploym ent at the Belmont Club. The job required her to dance in a glass cubicle adjacent to the area where drinks are served in the Belm ont Bar. The cubicle was twenty or twenty=five feet by fifteen feet. T.D.M. was born on January 17, 1974. She was thirteen years old when she was hired. She never filled out an application for employment, and lied about her age to Dancing Angels manager Nancy Osterman when asked. She then perform ed an audition. David Fan was present at the audition. She was hired by David Fan. T.D.M. did not sign a contract with the so�=called Dancing Angels, Inc. until seven weeks after her audition. She was clearly an em ployee under the direction and control of David Fan. T.D.M, did not furnish Nancy Osterman or David Fan with a copy of her birth certificate or any other proof of age when she was hired , or at any tim e thereafter. A reasonable person would have inquired further about T.D.M.'s age, given all of the facts and circumstances at the time she was hired. T.D.M.'s testimony that she was not required to prove her age is credible; she had no motive to testify falsely in the license hearing , and no interest in the outcome of the license proceedings. Testimony of witnesses for the Belmont contradicted each other on matters relating to the control and management of the dancers, and all had an interest in the outcome of the proceedings. 1�1. T.D.M. signed a "Dancer Agreement" with Dancing Angels, Inc . which provided , among other things , that she was an independent contractor, free to exercise her own judgment as to costuming, exotic dance routines, and m usic used "as limited by applicable laws and ordinances." (Respondent's Ex. A) . This 2 , . ��-�� Agreement also spelled out "Responsibilities of Dancer" , including that " [d] ancer shall abide by all applicable laws, statutes, ordinances and regulations governing exotic dancing ... [ and] shall not ... commit any felony ...". (Respondent's Ex. A) . This Agreement was executed on January 4, 1988. (Ex. A) . Even though T.D.M, signed the Agreement with Dancing Angels, Inc., she understood that she worked for the Belmont Club, and that her boss was David Fan. 11. "Dancing Angels" are instructed that they can't touch themselves in their genital areas. The St. Paul Legislative Code which relates to this subject is reviewed with the dancers periodically, and there is a sign posted in the dancer's dressing room which states : "You cannot touch, caress or fondle your breast, buttocks, anus or genitals. If you can't follow this rule you will lose your job! ... Att. all dancers, you must carry your valid Minn. I.D. on you at all times or you don't dance. So don' t lose it." (Respondent' s Ex. D) . There was evidence showing another incident concerning a sixteen year old dancer , not alleged in the Notice of Hearing , but raised by counsel for Respondent in his crossLexamination of Officer Meyer. (Tr. 78 = 79) . This dancer was about to perform on the stage and had no identi f ication or proof of age. 12. T.D.M. looks older than her age, and could be mistaken for an eighteen=year°-old. When she auditioned for Dancing Angels, she was wearing m ore m akeup than she did in court, and her hair was shorter , and stood up more. Nonetheless , a reasonable person would not have accepted her assertion of age at face value, but would have inquired further as to her age. 13. T.D.M. procured an identification card from the "Unbank" on December 8 , 1987. (City Ex. 2) . On that identification card , her birthdate is shown as 1-17=68. (City Ex. 2) . 14. As a "Dancing Angel" , T.D.M, was paid approximately $10.00 per hour plus tips, which were stuck through slots in the glass dancing cage by Belmont patrons. She was paid with a Dancing Angels, Inc. check, signed by David Fan. (City Ex. 3) . She worked six days per week. David Fan and a bartender , Sherry, were present in the bar during T.D.M.'s performances from time to time. David Fan would tell T.D.M. to leave the bar if she came in for pop or cigarettes , because she was under 21 years of age. 15. On February 2, 1988, Officer Lawrence Rogers entered the Belmont Club, having received information that T.D.M., a runaway from foster placement , might be in the Club. Officer Rogers did not discuss the matter with David Fan or ask for Fan's cooperation concerning T.D.M. David Fan ws present in 3 . �-��-��v the Club on February 2, 1988 , and Officer Rogers characterized the Club' s general attitude toward the police as more than cooperative." At approximately 10: 00 p.m. on February"2, Officer Rogers observed T.D.M, wearing a halter or bikini top with a matching mini=skirt. While dancing , T.D.M. exposed her pubic areas and buttocks by lifting her skirt and by squatting while facing males seated at stageside. While squatting , T.D.M. performed several pelvic thrusts and spread her legs in such a m anner as to expose her inner vaginal area. During a second song, T.D.M. returned to the stage wearing only the top of her costum e and continued to dance in a similar m anner, including the fondl ing and touchinq of her breasts and geni tal area. Dur ing a third sonq , T.D.M. returned to stage wearing only high=heeled shoes. She then continued to dance as previously described and also lay on her back with her feet on the stage, while bending her knees at a 90 degree angle. In this position, T.D.M. bridged her back, spread her legs, and performed numerous pelvic thrusts toward the patrons. This maneuver was accom panied by the touching and fondling of the breasts and genital area. 16. The City Attorney asked Officer Rogers to make out a suppplementary police report, describing T.D.M.' s activities in more detail , which report was completed on February 22, 1988 . 17. The Dancinq Angels policy is that a fem ale has to be eighteen years of age to dance. If dancers are underage, they are not permitted in the bar. Dancers currently are required to have a valid Minnesota ID or driver's license to verify their ages. This represents a tightening up of identification requirements; at the time T.D.M. was hired, other kinds of identification were accepted . The Unbank ID was never acceptable. 18. Known prostitutes loiter in the University and Sherburne area. There are 3 = 15 prostitutes working the Sherburne area per night, depending on where the police cars are. They can be observed on the sidewalk to the front, back and side of the Belm ont Club. They can be observed inside the Belm ont parking lot , talking to people leaving the Belmont. One neighborhood activist, Manual Melendez, has observed prostitutes approaching cars in the lot five times in the last two years. Neighborhood resident Bruce Eisenm enger has seen prostitutes on Sherburne at the entrance to the lot on numerous occasions during 1987=88; he has seen prostitutes within the lot on occasion and has observed some enter the Club. Mr. Eisemnenger observed such activities daily or every other day until the last month. Officer Charles Lutschen has contact with prostitute problems in and about the Belmont about two tim es per night. Officer Lutschen believes he has made one arrest in the Belmont parking lot. There are more prostitutes on the sidewalk than are ever 4 . . � ��/f��O seen in the lot. Some of the prostitutes go in the parking lot to evade the police. The Belmont parking lot also is used by patrons of the Faust and Flick Theaters, although management has attempted to discourage this. It is quite common to observe discarded condoms in the parking lot and adjacent streets. Pimps and prostitutes have been observed entering the Belmont. In the winter , these people may be looking for someplace warm. The record contains little evidence regarding the activities of these individuals inside the bar . Officer Dennis Meyer saw a prostitute in the bar only once, and he didn't inform management. Officer Charles Lutschen has observed pim ps sitting in the bar , where prostitutes come to deliver money to the pim ps. He has observed prostitutes and pimps use the bar for drinking and picking up customers. He has never made an arrest inside the bar for solicitation; but he has m ade 20 - 25 arrests outside the bar for solicitation inside, and others , as follows: one (1) in Lendway's lot, two (2) in Skipper's lot, twenty to thirty (2g '- 30) on the corner of Sherburne and Dale , twenty (24!) on University and Dale, as well as numerous arrests at St. Albans and Sherburne and Kent and Sherburne. 19. The Belmont Club is located in a high crime/high prostitution area. While the Belmont is not the sole and exclusive source of prostitution in the area, it is used by prostitutes in sufficient numbers for meeting with johns, for shelter from the elements, for avoiding police officers, for meeting with pim ps, and in conjunction with the parking lot using the licensed activity as a base of operations. Prostitutes use houses on Sherburne. 20. The Belm ont Club wasn' t "targeted" for protest by community action groups until recently. After the T.D.M. incident, David Fan met with the vice squad to discuss procedures that were going to be followed. Sgt. Schaub expressed his intention to give the Belmont more photographs of known prostitutes and pimps, but wasn't going to do that until a procedure was settled upon. City officials met with Belmont representatives on April 1, 1988, to try to reach an agreement to eliminate the prostitution in the Belm ont parking lot. David Fan said he would hire a security guard and do everything possible to eliminate prostitution in the lot. He requested photographs of known prostitutes and pim ps. He suggested that seminars be given to his em ployees regarding ho w to identify prostitutes or pim ps. He was cooperative regarding eliminating the problem, looking for guidance from the police departm ent. During rthe last month, there has been a "tremendous improvement" in the discouragement of prostitution around the Belmont; Chris, the security guard , currently is doing an "excellent job" of "shooing girls off the lot." During the last couple months, Belm ont em ployees have been more vigilant about stopping prostitutes at the entrance to the 5 � � �i=��,�� parking lot. The Belmont parking lot is we11=1it and the trees in the area have been trimmed. The Belmont efforts at im provem ent are clearly related to and result from the initiation of enforcement action against the licenses of the Belmont Club. 21. The Belmont management has not always cooperated with the police as they come through the bar. The bar management allows the pol ice to come inside and make frequent checks. Bouncers and bartenders have infrequently pointec3 out prostitutes and pim ps to officers and asked officers questions regarding whether a woman is a working prostitute, but more often have failed to recognize that the problem exists and have not responded to Officer Lutchen's requests to view photos of prostitutes working the Belm ont Club and parking lot. The bar manager once has advised the police, "I think he's a pimp; I think she' s working ." Oficer Lutchen has advised the bar management that they do have the right to evict known prostitutes, especially if they are working the bar , but he has never been asked to evict a prostitute. In contrast, he has been called approximately twenty tim es to evict prostitutes from Lendway's Bar near the Belmont and Lendway's Bar has sought vigorously to deal with the problem . The Liquor License Inspector has received complaints about prostitution in relation to the Belm ont Club, but has not received similar com plaints about Lendway' s. CONCLUSIONS 22. The 1 icensee employed minor T.D.M., who 1 ied about her age in order to obtain employment. The City has sustained its burden of proving that T.D.M, was em ployed for the purpose of engaging in a sexual perform ance, and has sustained its burden of proving that the licensee permitted a minor to engage in a sexual performance. 23. The Council concludes that the findings and evidence in the record relating to prostitution are sufficient grounds for disciplinary action relating to the licenses of the Belm ont Club, in that they reflect the existence of a nuisance for which the said Belm ont Club is accountable, and constitute a serious danger to the public health, safety and welfare. Such findings are grounds for adverse action under Section 409.08 (6) of the Saint Paul Legislative Code, prohibiting licensees from permitting licensed premises to be used as a resort for prostitutes; Section 310.A6 (7) of the Code allowing revocation when the actions of the licensee in the licensed activity create danger to public health, safety or welfare; and under Section 231.g1 of the Code, as well as Minnesota Statutes 1986 , Section 6f�9. 74 , relating to nuisances. 6 . - - ��—is��l� 24. The Council concludes that the findings and evidence in the record relating to hiring a thirteen=year old girl to engage in sexual performances are sufficient grounds for disciplinary action relating to the licenses of the Belmont Club, in that they sho w that the licensee has indicated by such misconduct his lack of the requisite fitness and good moral character to engage in the licensed activity as provided by Section 310.06 (9) of the Code. Such findings also show a violation of Minnesota Statutes 1986, Section 617.246, and of necessity constitutes grounds for adverse action under Section 310.06 (6) of the Code, concerning violations of statutes which reasonably relate to the licensed activity. 7 � r�� - /�,�''�� MINUTES OF THE COUNCIL • . . . 9:00 A.M � , . . �• � , - AUGUST 11, 1988 ` , � � . : �� COUNCIL CHPMBERS - .CITY: HALL�& COURT HOUSE � � . . , . � � � SAINT PAUL, MINNESOTA , _ The meeting was called to order by President Scheibel at 9:05 A.M. Present - 7 - Councilmembers, Dimond, Cong, C�oswitz, Rettman, Scheibel, •Sonnen, Wi 1 son . Absent - 0 �. Councilmember Wilson moved that the rules be suspended to consider an item not on the agenda pertaining to St. Paul 's Conference for Bi-Lateral Technical Exchange w�th Chinese women. � - - Roll call on suspension. . Adopted _ , Yeas - ,7 . . Nays - 0 Resolution - 88-1375 - Supporting the participation of St. Paul women police officers in the conference for Bi-Lateral Technical Exchange with Chinese women counterparts in law enfor�ement as a public purpose and acknowledging grants ard thanking the St. Paul Foundation and F.R. Bigelow for their suppor� Sgt. Debbie Montgomery appeared and said she is the City's representative to the People's Republic of China and thanked the Council for their suppor� imll call on the resolution. Adopted Yeas - 7 Nays - 0 MISCFILAN60US 22. Presentation of Certificates of Appreciation to two citizens by Police Chief I�Qatcheon. It was noted that this item would be laid over indefinitely. 23. Youth Volunteer Recognition for the month of August. Councilmembers presented Gertificates of l�cognition and awards to several youth representing playgrounds throughout the City. APPLICATIONS - C�MUNICATION 2. Summons and Complaint in the matter of Judith Inglebretson vs the City of St. Paul et al. Referred to the City Attorney's Office. 3. Appeal of Betty Sanders to a summary abatement order for property located at 930 Marshall Arenue. Councilmember Rettman moved that a date of hearing be set fnr Pugust 25th. Adopted Yeas - 7 Nays - 0 4. Petition of the Fbrt Puthority to vacate parts of Pearl, Charles, GUrfew and 8erry Streets and the alle�y west from Territorial Road to Pearl in the proposed Westgate Office-Industrial Center. Referred to the Valuation Engineer's Office. - 470 _ August 11, 1988 OFFICIAL COM�INICATION OF THE MAYOR � �- . � 1. Mayor Latimer appeared and pre�sented �his proposed 1989 City budget. Councilmember Scheibel thanked the Mayor and said this is a good budget to work with. , , . Councilmember Wilson said he is optimistic with the propbsed budget and that he is extremely pleased with the proposed child care coordinator. ` At this time (10:10 A.M.) the Council recessed and �reconvened at 10:16 A.M. CONMITIEE REPORTS . � . _ _. 5. Second Reading - 88-1017 - An ordinance amending the Legislative Code and providing for the licensing of persons who lease property to others for the operation of certain �ambling activities. (Community & Human Services Committee recommends approval with amendment) Councilmember Rettman explained the amendment and said Councilmember Sonnen said in Committee she was in support of the amendment. Councilm�nber Rettman moved approval of the amendment. ' Adopted Yeas - 7 Nays - 0 ' ' Laid over to August 18th for Third Reading. 6. Second Reading - 88-1103 - An ordinance amending: Section 310.06 of the Legislative Code by adding clarifying language concerning "the -imposition 'of conditions on licenses. (Community & Human Services Committee recommends approval) " � Laid over to August 18th for Third Reading. , _, . , _ , 7. Resolution - 88-930 - Amending the 1988 budget by adding $78,961 to the Financing & Spending Plans for Parks & Recreation Park Watch Program: (Community & Human Services Committee recommends approval with amendment) " Councilmember Rettman explained the amendment and moved that it be approved. Adopted . . Yeas - 7 Nays - 0 NEW BUSINESS - RESOLUTIONS , , _ ., , 8. Resolution - 88-1229 - Approving agreement between City of St. Paul and the St. ' Paul Supervisors' Or anization. (FOR ACTION - Second Reading & Adoption - Laid over from August 4th� � '� " Councilmember Long recommended some technical language amendments to the appendix of the contract and said .SPSO is in agreement with it and he moved approval of the resolution with.the amended contract pages: ;" � Roll call . ; Adopted Yeas - 7 � Nays = `0 � 9. Resolution ��-'_88-1230 - Approving the Memorandum of 'Understanding pertaining to ' certain non-represented Confidential Supervisory Employees. (FOR ACTION - Second Reading & Adoption -,Laid over from August 4th) . . �.. _. Councilmember Long moved approval of the' resolution. � Adopted Yeas - 7 Nays -`0 � 10. Resolution - 88-1331 - Authorizing proper City officials to execute an agreement with the Port Authority to extend the lease for properties in the Southport ° Industrial District for the Police Impound Overfl ow Lot. . (FOR RCTION) Councilmember Rettman moved approval of the resolution. ` � � Adopted Yeas - 7 Nays - 0 - 471 - August 11, 1988 11. Resolution - 88-1332 - Authorizing proper City officials to execute a contract with the State Department of Health whereby the Gity will provide -risk reduction and disease prevention education and counselling, antibody testing and referral services to persons at increased risk of exposure to HIV/AIDS. (FOR REFERRAL TO THE COMMUNITY & HUMAN SERVICES COMMITTEE) - Councilm ember Rett man explained this a continuation contract and she moved approval of it. Roll call . Adopted Yeas - 7 Nays - 0 12. Resolution - 88-1194 - Adopting the amended District 2 Plan as part of the St. Paul Comprehensive Plan. (FOR ACTION - Laid over from July 21st) - Councilmember Scheibel said he received a phone call from the President of District 2 who requested this item be laid over indefinitely. _ Laid over indefinitely. � 13. Resolution - 88-1333 - Approving Registered Land Survey for property of Steve Shea located on the south side of Minnehaha Avenue between Pederson and Winthrop. (FOR ACTION - Hearing held August 2nd) . Councilmember Rettman moved approval of the resolution. Adopted Yeas - 7 �Nays - 0 14. Resolution - 88-1334 - Authorizing payment of $800 to Joellen and Wayne Switala from the Tort LiaSility Fund in full settlement of their claim. (FOR ACTION) Councilmember Rettman moved approval -of the resolution. Adopted Yeas - 7 Nays - 0 � PUBLIC HEARINGS 15. Hearing to consider the application of Battle Creek Association, Ltd, for review of final plat creating 11 new single family residential lots located at the west side of Battle Creek Road at vacated Florence Street. No one appeared in opposition. Councilmember Dimond said this is a good project and he moved it be approved. Adopted Yeas - 7 Nays - 0 16. Third Reading - 88-1070 - An ordinance amending Chapter 73 o�f the Legislative Code pertaining the Neritage Preservation Commission and city street name changes. (Housing & Economic Development Committee recommends approval with amendment) No one appeared in opposition. Councilmember Sonnen moved approval of the amendment. Adopted � Yeas - 7 Nays - 0 Laid over to August 18th for Final Adoption. 17. Third Reading - 88-1136 - An ordinance amending Ord. No. 13534 adopted January 31, �1967 by adding Biglow Lane southbound from Klainert Street to Timberlake Road and Klainert Street -from Arlington Avenue to Biglow Lane as one way streets. (Public Works Committee recommends approval) _ - No one appeared in opposition. Laid over to August 18th for Final Adoption. . 18. Third Reading - 88-1256 - An ordinance amending Section 46.01 of the Legislative Code pertaining to notice of discontinuance of utility services. � No one appeared in opposition. - - Laid over to August 18th for Final Adoption. � - 472 - August 11, 1988 19. Resolution - 88-1250 - Apprnving the transfer of On Sale Liquor, Sunday On Sale Liquor, Class III Entertainment and Restaurant Licenses presently'held by John's Place, Inc. dba Thomases located �at 901 Payne Avenue to C.L. H�nze Inc. dba Chuck's Bar (Chuck Hinze, Pres./Treas: and Delores� Hinze;� V. Pres7Sec.) at the same address. (Laid over from July_28th) . _ No� one appeared in o pposition: � Councilmember Dimond said this had been a problem area bar and the new owner has done a lot to improve it. Councilmember Long sa�d his� previous questions have been addressed.�" � Upon question of Councilmembe`r Sonnen, Kris Schweinler of the License" Division said that John and Joe Thomas retain an interest and that they filled out the appl i cati on wrong because they di dn't understand i t. Councilmember Sonnen said tfie applicants need to understand �the application they fill out and she moved this resolution be laid over to August 16th. Roll ca`ll on�the motion to lay'the matter over to.�August 16th.� " � Adopted . : ; .: Yeas - 7 ': 'Nays - 0 _ .. 20. Resolution - 88-1040 '= Suspending' ,On=Sale Non-Intoxicating �Liquor License held by Twin City Ford Local 879 for the premises known as the Fo'rd Union Hall located at 2191 Ford Parkway. (Community & Human �Services Committee su6mits ;to Council without recommendation), Councilmember Rettman gave a brief summary of the Committee report'and action taken. Councilmeinber Long said the �big question in Committee� was the num6er of violations of the establishment. �� Gene Newman and Bob Olson,' re�presentatives of the Ford Union Hall , appeared 'and expressed agreement�with a 6 day .suspension: � ` � Upon question of Councilmembers, Assistant City Attorney Jane' McPeak explained a letter of PhiT Byrne distributed at eommittee outlining the violations and she said it is the opinion of the City,Attorney that there were 3 violations. Councilmember Rettman said at the time ��he violations occur'red our guidelines were set and she feels there should be a stronger suspension. Roll call on suspending the licen�es heTd by Ford Union Hall for 6 days. Adopted ' Yeas = 4 � Long/Dimond/Scheibel/Wilson) - Nays - 3 �Goswitz/Rettman/Sonnen) Councilmember,.Dimond said the organization has a good reputation'-in the community and although they made , some mistakes "tfiey st'ood forward and acknowledged it.� , - : . ,.. .. Counci 1 member, Sonnen ex p�ressed .concerns 'that we 'are`acti ng��as jud es and 'we should not be prejudicial in non-contested cases and that she-would ;�ike to see more staff 'work.� ' �� Councilmember Scheibel said this would 'be good_discussion.�for: the'.Committee-of- ttie-Whole. � . . � . . There was considerable discussion on policies,tiprocedures and �guidelines: " After further discussion mll call was requested for`the license to be "suspended on August 15, .16, 17, 18, �19, and 22; 1988. " ' ' � Adopted . � Yeas -� 5' � Nays - 2 (Goswitz/Sonnen) � � 21. Report of the Administrative Caw Judge, including findings of fact,` conclusions and recommendati on i n the matter of adverse heari ng i nvol vi ng�',1 i censes hel d by ttie Belmont Club located at 615 University Avenue. ' � � Assistant City Attorney Jane� McPeak briefly went over the "procedures to` be followed by the Council and stated that any questions they have or legal advice should be directed to her. � ' �' � �� AsSistant City Attorney Phi1. Byrne � appeared "and stated he was p'resent representing :the License ,Division: He explained the 'recommendations of the administrative law judge and said it clearly is only advisory and that the Council makes the determination of w hat the penalties will be: " He-presented his case tv Council and answered questions of CounciTmembers. ' (Discussion continued on following page) . - 473 - August 11, 1988 (Discussion continued from previous page) ' � Jim Bresnahan and Mary Seymour, attorneys for the Belmont Club, appeared and presented their case to Council and answered questions of Councilmembers. At this time (11:50 A.M) Council recessed and were reminded of the ex parte contacts and Council reconvened at 1:36 P.M. - - . - There was considerable discussion on the Administrative Law Judges findings and the exceptions. and �Mr. Byrne, Mr. Bresnahan and Ms. Seymour answered questions of Councilmembers. •�� - - - - At this time (3:00 P.M.) the -Council recessed and reconvened at 3:08 P.M: Phil Byw�ne and Mary Seymour presented their closing statements to Council. Councilmember Wilson said there is sufficient evidence to show violations of the Code by a minor being employed as a dancer, the employer was present, and that a sexual performance occurred and he said the Administrative Law Judge concurs that any reasonable employer would inquire about a minors age. Councilmember Scheibel said that Councilmember Wilson summarized his points very we11 . _ . . . , . Councilmember Dimond moved approval of findings of -fact as presented by Phil Byrne. - - - . . , .. . .: _ . . Councilmember Sonnen said she would like some changes working off Mr. Byrne's findings of fact. -- . - Councilmember Sonnen suggested deleting finding No. 9. � Councilmember Long said we should rely soley on the Administrative Law Judge's recommendation and neitF�r of the attorney's: exceptions. � - , . Councilmember Rettman said the �main findings she is looking at are findings No. 1, 8, 13,: 14, 15,�and 16. . .. , Councilmember Dimond moved to accept Finding�No: 9 of Mr. Byrne. • � Roll call . , . . . . . _ , , .: . � � Yeas �--�3 Dimond/Goswitz/Wilson) • - � � � Nays - 4 Long/Rettman/Scheibel/Sonnen) � Motion failed of adoption. � - • � Councilmember Dimond moved to accept_ Finding �No. 10 and Councilmember Sonnen requested an amendment� and there was agr-eement to accept Finding No. 10 as amended: After discussion there was a�reement to accept Findings 11, 18, 19 and 20. There was also discussion on Finding No. 14 as presented by Ms. Seymour and after discussion agreement to accept Finding 14 of the Administrative Law Judge. Councilmember Sonnen moved to accept Finding No. 17 of the Administrative Law Judge with the word "activist" to be substituted for the word "vigilante" and there was agreement to this am endment and to striking the last phrase and inserting a portion of Mr. Bresnahan's findings. Councilmember Wilson moved that based on the findings all the licenses be revoked and that the application for renewal be denied. � � -• Upon question of Councilmember Scheibel , Ms. McPeak suggested additional language�and references to the �Legislative Code and it was agreed that after the Council takes action the proper resolution would be prepared making reference to the prnper findings and violations involved. • - � : Councilmember Sonnen expressed concern about going from a $2,000 fine to revocation and said she would prefer a 90 day sus pension, revocation of the Entertainment License and requirement that�Mr. Fan work with the Police Department and the neighbors on prostitution problems. � - - Councilmember Wilson said he thinks the facts support the conclusion and the Law Judge errored in not finding the employer responsible. - . After further discussion roll call was requested on revocation of the license with the proper resolution to be prepared. �- • � Adopted � � Yeas - 6 Nays - 1 (Sonnen)�- Discussion continued on following page) ' � � - 474 - August 11, 1988 . Ms. McPeak said a copy of the resolution will be transmitted to Mr. Bresnahan prior to fi nal Counc il action. ,.. . , : . � , , _ Cou nc i 1 member Lo ng mov ed that the meet i ng ad jou rned. Adopted Yeas - 7 Nays - 0 • �� AD JOURN E�D AT �4:35P.M. � . unci _ resa ,en . : . � . . • .. . .. _ . . _ AITEST: , . .. Copies sent to Councilmembers . - ,. , , . - . Mir�utes approved by Council . . � . . , _ . , i Y er . . . ., _ . , ABO:pmk . - � . `: . . '� _ , . . .. . . � . .r�' ' ' , .... ,_ . • , - . ,.i. . " .. � . . .. . � .q .�..•. . . . ' . . � ^ ,. . . , _ , ,.. . .. , _ ' - -. � - s ' . � .. � , .: .. . . . . . . , . . . . . ... . .r . _ . .. , .. . � . . . ' � ... . . ., . . . . . . - . . .. - . �-., � . .. ' . , . � , � ... , , t , � . , ^. •-�, . � .. , . . .. ' � - ,. .. '.. .. •.�. ..�.. . � � - .. � . , . _ ,.,. . , . . , . .... . . . . . . . .�. . .. � ,- . ., � . ... . • .. . . . . .- . .. . . _. ,�. . ,� � . . � . V - ,. . .._ . . ' . . . ... �' . . _ . . �• � � .. .. . . . ..- . . , _ .. , � , . ., � - . . . . . . . . . _ ' � � . . . , -� ., . -. - 475 - � � �,_ ��'�� ' �v �1 � LAW OFFICES I�:UR2I�ZAN, GRANT, M.�N��HAN, BI,UTH & BA�RT�FR A PARTNERSHIP OF PROFES5IONAL CORPORATIONS 2�04 Stevens Avenue South Minneapolis, Minnesota 55�0� (61�) 871-90(l4 Marc G. Kurzman Mankato Carol Grant James H. Manahan Linda M. Oja1a Joseph P. Bluth Jasnes E. Moon Ann B. Barker (507) 387-5661 RE�EIVFD July s, �9s8 �� 1 Y 1988 CITy��ERK St. Paul City Council c/o Albert B. Olson City Clerk 386 City Hall St. Paul, MN 55102 Re: In the Matter of the On-Sale Liquor License for the Belmont Club Dear Mr. Olson: Enclosed and served upon you by U.S. Mail, please find the Findings of Fact, Conclusions, and Recommendation; and Memorandum in the above-entitled matter. Sincerely, C�G��1,�� Carol Grant i CG/tw enc. Attorneps admitted to practice in Florida, Minnesota and New York , �.�� ..�,�!� � City-88-021-CG 53-2101-2427-6 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of the FINDINGS OF FACT, On-sale Liquor License CONCLUSIONS, AND for the Belmont Club RECOMMENDATION The above-entitled matter came on for hearing before Administrative Law Judge Carol Grant on May 24, 1988, in the Fourth Floor Auditorium, St. Paul Public Library, St. Paul , Minnesota. Pursuant to the stipulation of both parties herein, the hearing in this matter concluded on June 21, 1988, the date of receipt of the final brief of the licensee. Philip Byrne, Assistant City Attorney, Attorney f or the City of St. Paul-License Inspector, 647 City Hall, St. Paul, MN 55102, appeared on behalf of the City of St. Paul. James Bresnahan and Mary Seymour, Cochrane & Bresnahan, 24 East Fourth St. , St. Paul , M1J 55101-1099, appeared on behalf of the licensee. This Report is submitted to the St. Paul City Council pursuant to Section 310. 05 ( c-1) of the St. Paul Legislative Code. STATEMENT OF ISSUES The issues to be determined in this proceeding are whether sanctions should be imposed upon on-sale liquor licenseholder MFL, Inc. , d/b/a/ the Belmont Club because ( 1) an off-duty employee possessed drugs in the Belmont parking lot, causing Belmont management to suspend and then fire the employee; (2) an emplopee yelled at and thereby interfered with a police officer in the performance of his duties, causing Belmont management to apologize to the officer and require the employee to apologize as well; ( 3) a minor, who lied about her age when employed bp Dancing Angels, Inc. , enqaged in a sexual performance which could be viewed by Belmont Club patrons; or (4> prostitution activities on or about the licensed premises constituted a neighborhood nuisance. Based upon all of the proceedinqs herein, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. An on-sale liquor license is held by MFL, Inc. d/b/a/ the Belmont Club . MFL, Inc. is owned by an individual named David Fan . Until March 15, 1988, David Fan also owned Dancing Angels, Form No.S`Z9O1/2—Affidavit of Service by Mail.(Rev.1957) BUSINESS REC�. State of Minnesota, County.of Hennepin Tracy L. Wahl ofthe city of Minneapolis County of Hennepin in the State of Minnesota,being duly sworn, sa p�.�h,e 7 th day of Ju ly , 19 8 8�ie served the annexe F i n �j„� Fact Conclusions and Recommendation and Memorandum on James Bresnahan and Mary Seymour �)� ;� the attorney(s)for the Belmont Club the Licensee in this action,by mailing to them a copy ed in an envelope, postage prepaid, and by depositing same in the post of�ce at Minneapolis Minnesota directed to said attorney(s) at 24 East Fourth Stre St. Paul MN 55101-1099 the last known address of said attorney(s). NOTARIAL STAMP OR SEAL(OR OTHER TITLE OR RANK) • A �+"� SUSAN H.GILL '�''�� NOTARY PUBLIG—MINNESOTA �'';�.`�- ANOKl1 COUNTv ��bscribed and_s orn to before me this � �"v Comi111Ni�E7cp�re� ap� 'I '99? ��,.`�.—day of � , 19��. ;vv y. , ,,wx /' ' ��5�.� �:� , < '��L� SIGNATURE OF NOTARY PUBLIC OR OTHER OFFICIAL Form No.3290'/�—Affidavit of Service by Mail.(Rev.1957) Miller/Davis Co.,Minneapolia � State of Minnesota, County of Hennepin Tracy L. Wahl ofthe city of M.inneapolis County of Hennepin in the State of Minnesota,being duly sworn, sa�r��$�� 7th day of July , 19 88 S�e served the annexedFinding �� 1 Fact Conclusions, and Recommendation, and Memorandum on Philip B_yrne �-: i�`�' the attorney(s)for the Cit of St. Paul �•�v� the c i ty in this action,by mailing to him a cop �here in an envelope,postage prepaid, and by depositing same in the post office at Minneapo�lis "° Minnesota directed to said attorney(s) at 647 Cit , Hall, St. Paul innesota, the last known address of said attorney(s). NOTARIAL STAMP OR SEAL(OR OTHER TI K) *��-� SUSAN H.GILL � � NOTARY PUBIIf�-�INNESOTA � � bscribed and or to before me this � �`�.�... AI�IiA00UNTY 1. �` a of 19�� `z Mv Comni�E�ADr 22,1992 Y ' � s �ry � ,.T;,.:,.,vv ��" V `� � SIGNATURE OF NOTARY PUBL O HER OFFICIAL , Inc. Gity Ex. 7. Nancy Osterman had been manager of Dancing Anqels, Inc. , which corporation supplied dancers to a variety of bars in Minnesota and Wisconsin . Ms. Osterman received $250. -300. per week salary f rom the Belmont and another bar to manage the dancers . On March 15, Nancy Osterman, the manager of Dancing Anqels, paid David Fan $20. and therebp purchased the stock of Dancing Angels, alonq with $15.-18. in liabilities . Now she receives approximately $100. per week of the $1,842. per week transferred to Dancing Anqels f rom the Belmont. The rest of the $1,842. is used to pap dancers. 2. On Nov. 10, 1987, at approximatelp 10:00 p.m. , Officer Dennis Meyer observed Belmont Bar employee Randy Glen Pape in a silver pickup parked to the rear of the house west of the Belmont. A female was seated in the passenger seat next to Randy Pape. Five minutes later, Officer Meyer drove back through the lot and saw Randy Pape in the pickup with a black male passenger.When Officer Meyer approached the pickup, Pape attempted to hide something in the front seat. Officer Meyer subsequently seized a baq of marijuana sticking out of Pape' s pants pocket. The baq was 1 1/2 inches in diameter, and 3 or 4 inches lonq. An additional 3 baqs of marijuana and 2 Thai sticks were found in the pickup glove box. Per Belmont Bar policy, Randp Pape was suspended from employment for a period of time as a result of this involvement with drugs. 3. In January or February, 1988, Officer Meyer aqain saw Randy Pape with a dancer in the Belmont Bar parking lot. He also observed a small tray with a green leafy substance and cigarette paper. The dancer admitted that the marijuana was hers. Per Belmont Bar policy, the dancer, Debra Fox, was suspended f rom employment f or a period of time and was fined. Randy Pape was dismissed. 4. The sale of druqs bp Randy Pape occurred when Randp Pape was off-duty. Af ter these incidents, an attendant was hired to monitor the Belmont parking lot 6 or 7 nights per week. 5. On Januarp 14, 1988 at approximately 9:00 p.m. , Officer Dennis Meyer observed two women loitering on the corner of Dale and Sherburne. One of them walked into the Belmont parking lot and began approaching men leaving the bar as thep walked to their cars. She engaged one man in conversation, but nothing came of i t. 6. As Officer Meper approached to 60 feet northeast of the bar, in the parking lot, bouncer Jerry Meinhof er yelled at him, "This shit' s gotta stop. . .You can't be doing this shit here. . . I want you out now. " 7. Shortly after Meinhofer' s outburst, the Belmont Bar manager apoloqized profusely for his behavior to Officer Meyer. Management had never tried to discouraqe the police from patrollinq the parking lot, and indicated they would cooperate with anything the police wanted done. Z�ao hours later, Meinhofer also apologized to Officer Meper, although somewhat less enthusiastically. Meinhof er no longer works at the Belmont Bar. 8. In late November or early December, 1987, a juvenile having initials T.D.M. applied for employment with Dancing Angels, Inc. The job required her to dance in a glass cubicle adjacent to the area where drinks are served in the Belmont Bar. The cubic le was twentp or twenty-f ive f eet by f if teen f eet. T.D.M. was born on Jan. 17, 1974. She was 13 years old when she was hired. She never filled out an application for employment, and lied about her aqe to Dancing Anqels manager Nancp Osterman, when she asked. She then performed an audition. David Fan was present at the audition. She was hired by David Fan. 9. T.D.M. signed a "Dancer Agreement" with Dancing Anqels, Inc, which provided, among other things, that she was an independent contractor, free to exercise her own judgment as to costuminq, exotic dance routines, and music used "as limited by applicable laws and ordinances. " Respondent' s Ex. A. This Agreement also spelled out "Responsibilities of Dancer, " including that "Cd]ancer shall abide by all applicable laws, statutes, ordinances and regulations governing exotic dancing. . .Cand] shall not. . . commit any f elony. . . " Respondent' s Ex. A. This Agreement was executed on Jan. 4, 1988. Ex. A. Even though T.D.M. signed the Agreement with Dancing Angels, Inc. , she understood that she worked f or the Belmont Club, and that her boss was David Fan. 10. "Dancing Angels" are in�tructed that they can't touch themselves in their genital areas. The St. Paul Legis. Code which relates to this subject is reviewed with the dancers periodicallp, and there is a sign posted in the dancers' dressing room which states: "You cannot touch, caress or f ondle your breast, buttocks, anus or genitals. If you can't follow this rule pou will lose your job! . . .Att. all dancers, You must carry your valid Minn. I .D. on you at all times or pou don' t dance. So don' t lose it. " Respondent' s Ex. D. 11. T.D.M. looks older than her age, and could be mistaken for an eighteen-year-old. When she auditioned for Dancing Angels, she was wearing more makeup than she did in court, and her hair was shorter, and stood up more. 12. T.D.M. procured an identification card f rom the "Unbank" on Dec. 8, 1987. City Ex. 2. On that identification card, her birthdate is shown as 1-17-68. City Ex. 2. 13. As a "Dancinq Angel" , T.D.M. was paid approximately $10. 00 per hour plus tips, which were stuck through slots in the glass dancing cage by Belmont patrons. She was paid with a Dancing Angels, Inc. check, signed by David Fan. City Ex. 3. She worked six daps per week, David Fan and a bartender, Sherry, were present in the bar during T.D.M. ' s perf ormances f rom time to time. David Fan would tell T.D.M. to leave the bar if she came in for pop or cigarettes, because she was under 21 years of age. 14. On Feb. 2, 1988, Officer Lawrence Roqers entered the Belmont Club, having received information that T.D.M. , a runaway from foster placement, might be in the Club. Officer Roqers did not discuss the matter with David Fan or ask for Fan' s cooperation concerning T.D.M. . David Fan was present in the Club on Feb. 2, 1988, and Officer Rogers characterized the Club' s qeneral attitude toward the police as "more than cooperative. " At approximately 10: 00 p.m. on Feb. 2, Officer Roqers observed T.D.M. wearing a halter or bikini top with a matching mini-skirt. While dancing,T.D.M. exposed her pubic areas and buttocks by lifting her skirt and by squatting while facing males seated at stageside. While squatting, T.D.M. performed several pelvic thrusts and spread her leqs in such a manner as to expose her inner vaginal area. During a second song, T.D.M. returned to the staqe wearing only the top of her costume and continued to dance in a similar manner, including the fondling and touching of her breasts and genital area. During a third song, T.D.M. returned to the stage wearing only high-heeled shoes. She then continued to dance as previously described and also lay on her back with her feet on the staqe, while bending her knees at a 90 degree angle. In this position, T.D.M. bridqed her back, spread her legs, and performed numerous pelvic thrusts toward the patrons. This maneuver was accompanied by the touchinq and fondling of the breasts and genital area. 15. The City Attorney asked Officer Rogers to make out a supplementary police report, describing T.D.M. ' s activities in more detail, which report was completed on Feb. 22, 1988. 16. The Dancing Angels policy is that a female has to be 18 pears of aqe to dance. If dancers are underaqe, they are not permitted in the bar. Dancers currently are required to have a valid Minnesota ID or driver' s license to verify their age�. This represents a tightening up of identification requirements; at the time T.D.M. was hired, other kinds of identification were accepted. The Unbank ID was never acceptable. 17. Known prostitutes loiter in the University and Sherburne area. There are 3-15 prostitutes working the Sherburne area per niqht, depending on where the police cars are. Thep can be observed on the sidewalk to the front, back and side of the Belmont Club. Thep can be observed inside the Belmont parking lot, talking to people leaving the Belmont. One neighborhood viqilante, Manuel Melendez, has observed prostitutes approaching cars in the lot five times in the last two years. Neiqhborhood resident Bruce Eisenmenqer has seen prostitutes on Sherburne at the entrance to the lot on numerous occasions during 1987-88; he has seen prostitutes within the lot on occasion and has observed some enter the Club. Mr. Eisenmenger observed such activities daily or every other day until the last month. Officer Charles Lutschen has contact with prostitute problems in and about the Belmont about two times per niqht. Officer Lutschen believes he has made one arrest in the Belmont parkinq lot.There are more prostitutes on the sidewalk than are ever seen in the lot. Some of the prostitutes qo in the parking lot to evade the police. The Belmont parkinq lot also is used by patrons of the Faust and Flick theaters, although management has attempted to discourage this.It is quite common to observe discarded condoms in the parkinq lot and adjacent streets. Pimps and prostitutes have been observed entering the Belmont. In the winter, these people may be looking far someplace warm . The record contains little evidence regarding the activities of these individuals inside the bar. Officer Dennis Meyer saw a prostitute in the bar only once, and he didn' t inform manaqement. Officer Charles Lutschen has observed pimps sittinq in the bar, where prostitutes come to deliver money to the pimps. He has observed prostitutes and pimps use the bar for drinking and pickinq up customers. He has never made an arrest inside the bar for solicitation, but he has made 20-25 arrests outside the bar for solicitation inside. 18. The Belmont Club is located in a high crime/high prostitution area. The Belmont is not the source of prostitution in the area.Prostitutes use houses on Sherburne. 19. The Belmont Club wasn' t "targeted" f or protest bp community setion groups until recently. After the T.D.M. incident, David Fan met with the vice squad to discuss procedures that were going to be followed. Sqt. Schaub expressed his intention to give the Belmont more photographs of known prostitutes and pimps, but wasn't going to do that until a procedure was settled upon. Citp officials met with Belmont representatives on April 1, 1988, to try to reach an agreement to eliminate prostitution in the Belmont parking lot. David Fan said he would hire a security guard and do everything possible to eliminate prostitution in the lot. He requested photographs of known prostitutes and pimps. He suggested that seminars be given to his employees regarding how to identify prostitutes or pimps. He was cooperative regardinq eliminatinq the problem, looking for quidance from the police department. Durinq the last month, there has been a "tremendous improvement" in the discouragement of prostitution around the Belmont; Chris, the security guard, currently is going an "excellent job" of "ahooing girls off the lot" .During the last couple months, Belmont employees have been more vigilant about stopped prostitutes at the entrance to the parking lot. The Belmont parking lot is well-lit and the trees in the area have been trimmed. 20. The Belmont management has always cooperated with the police as they come through the bar. The bar management allows the police to come inside and make frequent checks. Bouncers and bartenders have pointed out prostitutes and pimps to officers and asked officers questions regardinq whether a woman is a wvrking pr�stitute. The bar manager has advised the police, "I think he' s a pimp; I think she' s working. " The bar manager has asked the police if the bar has the right to evict known prostitutes, especially if they are working the bar. Officer Charles Lutschen has never been asked to evict a prostitute. In contrast, he has been called approximately twentp times to evict prostitutes from Lenway' s Bar near the Belmont. The Liquor License Inspector has received complaints about prostitution in relation to the Belmont Club, but has not received similar complaints about Lemwap' s. Based upon the foregoinq Findinqs of Fact, the Administrative Law Judge makes the f ollowing: CONCLUSIONS 1. The Administrative Law Judqe and the St. Paul Citp Council have jurisdiction over this matter pursuant to Minn. Stat. 340A.404, Minn. Stat. 14.50 and St. Paul Legis. Code chapter 310 & 409. The Notice of Hearing was proper in this matter and all procedural requirements of law or rule have been fulfilled by the City. 2. St. Paul Legis. Code Sec. 409. 08( 5) requires the licensee to maintain order in his place of business. 3. St. Paul Legis. Code Sec. 310. 06(b) ( 7) permits the City to take adverse action against a licensee if the "activities of the licensee in the licensed activitp create or have created a serious danger to the public health, safety or welfare. . . " 4. St. Paul Legis. Code Sec. 310. 06(b) (6) permits the City to take adverse action aqainst a licensee if the "licensee. . .has violated any of the provisions of these chapters, or of any statute, ordinance or regulation reasonably related to the licensed activity. . . " 5. T�ao isolated incidents involving the possession of drugs by an off-duty emplopee in the licensee' s parking lot do not reflect the licensee' s failure to maintain order, particularlp when the employee was punished by the licensee. Nor do the incidents constitute activity by the licensee in violation of the law or which creates a serious danger to the public health, safety or welfare. Thus, the City has not proved violations of St. Paul Leq. Code sections 310. 06(b) (6) ,310. 06tb) ( 7) or 409. 08( 5) due to the use of drugs in the Belmont parking lot. 6. An incident involving an employee of the licensee who yelled at a police officer to discourage him f rom investigating possible prostitution outside the licensed premises does not reflect the licensee' s failure to maintain order, particularly when manaqement apologized immediately and profusely f or the employee' s behavior, and required the emplopee to apoloqize to the officer involved. Nor did the incident constitute activity by the licensee in violation of the law or which creates a serious danger to the public health, safety or welfare. Thus, the City has not proved violations of St. Paul Leg. Code sections 310. 06(b) (6) , 310. 06(b) ( 7) , or 409. 08(5) due to interference with the police by a Belmont employee. 7. Minn. Stat. 617.246 Subd. 2 provides that it is "unlawful for a person to . . . employ. . .or permit . . . a minor to engaqe in . . . anp sexual performance if the person knows or has reason to know that the conduct intended is a sexual performance. " This statute is reasonablp related to the licensed activity in this case. St. Paul Legis. Code 310. 06(6) . 8. Dancing Angels, Inc. , not the licensee, employed minor T.D.M. , who lied about her age in order to obtain employment. The City has not sustained its burden of proving that T.D.M. was employed for the purpose of engaqing in a sexual performance, but has not sustained its burden of proving that the licensee permitted a minor to engage in a sexual performance. 9. St. Paul Legis. Code Sec. 310.06(9) provides that adverse action may be taken aqainst a licensee if the "licensee. . .has shown by past misconduct. . .that such licensee. . . is not a person of the good moral character or fitness required to engage in a licensed activity, business or profession. " 10. The City has not sustained its burden of provinq that the licensee is not of good moral character. 11. St. Paul Legis. Code 408. 08(6) provides that no "licensee shall. . .permit the licensed premises or any room in the same or any adjoining buildinq directly under his control to be used as a resort for prostitutes. . . " 12. The City has not sustained its burden of proving that the licensee permitted the licensed premises to be used as a resort for prostitutes. 13. Minn. Stat. 609.74 and 561.01 prohibit nuisances, and are reasonably related to the licensed activity. St. Paul Leqis. Code Sec. 310.06(b) (6) . ' 14. Until this spring, the licensee permitted a condition in the Belmont parkinq lot which constituted a nuisance. The parking lot situation currentlp is acceptable from a public perspective. 15. The attached Memorandum shall be made a part of the proceedings herein. Based upon the foregoing Conclusions, the Administrative Law Judqe makes the following: RECOMMENDATION IT IS HEREBY RECOMMENDID that the City Council take disciplinary action against the licensee by imposing the following conditions upon the licensee: 1. A mandatory parking lot attendant from noon to closing every day the bar is open, whose job shall �� .�� be to discourage solicitation for prostitution in and near the parking lot. 2. That the licensee, bp its agents, personally and niqhtly demand and check state driver' s license identification of any dancer visible in the licensed premises, to verify that the dancer is not a minor. 3. That the licensee keep a record of name and identification information for dancers visible in the licensed premises, which may be checked in the event further questions are raised about underage dancers visible in the premises. 4. That the licen�ee be fined $2,000. 00 for having permitted a nuisance, said fine to be staped for a period of two years on condition that he permit no same or similar vio- lation of the nuisance laws. Dated this 6th day of July, 1988. ��5_ ----------- Carol Grant Administrative Law Judge Pursuant to chapter 14.62, a copp of the decision and order in the above-entitled case shall be served upon each party or the party' s representative and the administrative law judge by first class mail. 45 MEMORANDUM This is a liquor license revocation proceeding under Sections 310 and 409 of the St. Paul Legislative Code. As part of his case, the licensee made a varietp of preliminary motions: Failure to State a Claim The licensee moves to dismiss, arguing that the allegations in the Notice of Hearing do not fall within the qrounds for liquor license revocation set forth in the St. Faul Legislative Code. The City responds that its actions are not limited by the ordinances in any event, and that it has inherent power to revoke a liquor license for misconduct in the operation of a liquor business. The City cites Moskovitz v. Citv of St. Paul, 16 N.W. 2d 745 (Minn. 1944) , Sabes v. Citv of Minneapolis, 120 N.W. 2d 871 (Minn. 1963) , and Hvmanson v. Citv of St. Paul, 329 N.W. 2d 324 (Minn. 1983> , to support its argument.Revocations in those cases, however,were done pursuant to city charter provisions, ordinances or statutes. The cases do not stand for the proposition that "Ct]he authoritp vested in municipalities to pass on license. . . revocation is not limited by the ordinances they may choose to adopt. " City' s brief at 2. The privileges of a licensee are subject to such conditions, including the cause and manner of revocation, as the legislative body may see fit to impose.Abeln v. Citv of Shakopee, 28 N.W. 2d 642 (Minn. 1947 ) . Put a slightly different way, one who accepts a license to sell intoxicating liquor accepts the privilege of so doing subject to the burdens imposed upon it by an ordinance enacted in the exercise of the police power of the municipalitp granting the license.3tate v. Kuss, 84 N.W. 2d 290, 293 (Minn. 1957) . The question then becomes whether the conduct described in Allegations One through Five is prohibited by a statute or St. Paul ordinance. Allegation One describes the unlawful sale of drugs in the parking lot of the licensed premises bp an employee of the licensee. St. Paul Leg. Code 409. 08(5) requires every licensee to maintain order in his place of business. St. Paul Leg. Code 409. 14(a) provides that "Ca]ny act by anp clerk, barkeeper, agent, servant or employee of any licensee hereunder, in violation of this chapter, shall be deemed the act of the employer and licensee of such place. . . " St. Paul Leq. Code 409. 06(c) states that no license shall be issued to anyone other than a person of good moral character. These ordinances provide sufficient qrounds to deny the licensee' s motion to dismiss Alleqation One. Additionally, St. Paul Leg. Gode Sec. 310. 06(b) (6) supports Allegation One. This section permits adverse action against a licensee if he "has violated any of the provisions of • these chapters. . . " Section 231. 01 of the Code prohibits nuisances.Knowinq or grosslp negliqent activity which facilitates the sale of drugs in the parking lot of a liquor establishment could be considered a nuisance.St. Paul Leg. Code Sec. 310. 06(b) ( 7 ) also supports Allegation One. Sec. 310. 06(b) ( 7) permits adverse action against a licensee where "Ct]he activities of the licensee in the licensed activity create or have created a serious danger to the public health, safety or welfare, or the licensee performs or has performed his work or activity in an unsafe manner. " Allegation �ao alleqes interference with police officers in the performance of their assignment by an employee of the licensee. The ordinance provisions referred to in the preceding two paragraphs support Allegation Ztao, with the exception of Sec. 231.01, as interf erence with police officers could not fairly be categorized as a "nuisance. " Allegations Three and Four allege the unlawful employment and use by the licensee of a minor for sexual perf ormances in violation of Minn. Stat. 617.246. St. Paul Legis. Code 310. 06( 7) permits adverse action against a licensee if his activities "create or have created a serious danqer to the public health, safetp or welfare. . . " St. Paul Legis. Code 310. 06(b) (9) permits adverse action if the licensee "has shown bp past misconduct. . .that Che] is not a person of the qood moral character or fitness required to engage" in the licensed activity. Sec. 310. 06(b) (6) also supports Allegations Three and Four, permitting adverse action against a licensee if he "has violated any of the provisions of these chapters, or of anp statute, ordinance or regulation reasonablp related to the licensed activity. . . " St. Paul Leg. Code Sec. 409, however, does not support Allegations Three and Four. Sec. 409. 14 makes a licensee responsible for the acts of his emplopees. Sec. 409. 08(4) states that "Cn]o person under eighteen years of aqe may be emploped in a place where intoxicating liquor is sold f or consumptfon on the premises. "Premises of license" is defined in Sec. 409. 06(e) as "the compact and contiguous space named in such license. . . " All licenses qranted must set forth "the exact location within the building structure" where liquor sales may be made. Sec. 409. 06(e> . A special permit is required for sales of liquor in areas outside the structure containing the licensed premises. Sec. 409. 06(e) . The Belmont Bar liquor license place of business is 615 University Ave. City Ex. 6. The City License Inspector testified that there are five establishments where liquor is sold on one side of a qlass window and nude dancing occurs behind the window; that an entertainment license, distinct from a liquor license, is issued for the dancing activities. In this case, the dancing activities occur at a studio with a separate address and entrance from the licensed premises.See also City Attornep Opinion Letter dated Sept. 14, 1987 , cited in the licensee' s prehearing motion brief. Code Sec. 409. 06(e) , the Opinion letter and the testimony sugqest that Sec. 409. 08(4) is not applicable to this case, because there is no indication that a person under eighteen years of age was employed on the licensed premises. Similarly, Sec. 409.09 prohibits certain sexual conduct "on licensed premises. . . " Since the alleged sexual activities did not take place on the licensed premises, this section cannot be used as a basis for adverse action against the licensee. Allegation Five alleqes"the occurrence of acts of solicitation for prostitution, prostitution and prostitution-related activities in the licensed premises, on the parkinq lot behind the licensed premises, and in the immediately adjacent area, all or which constitute tl) a nuisance, and ( 2) create or have created a serious danger to the public health, safety and welfare. . . " The St. Paul Legis. Code 408. 08(6) provides that: "No licensee shall. . .permit the licensed premises or anp room in the same or any adjoining building or any adjoining buildinq directly under his control to be used as a resort for prostitutes. . . " This Code provision requires denial of the Motion to Dismiss Allegation Five, as does Sec. 310. 06(6> ,providing that the Council may take adverse action if the "licensee. . .has violated anp of the provisions of these chapters. . . " including the nuisance provision. Sec. 310.06( 7) permits the Council to take adverse action if the "activities of the licensee in the licensed activity create or have created a serious danger to the public health, safety or welfare. . . " and also supports Alleqation Five against a Motion to Dismiss. Subject Matter Jurisdiction An administrative agency map not consider the constitutionality of the statutes under which it operates. McKee v. Countv of Ramsev, 245 N.W. 2d 460 (Minn. 1976) . Consequentlp, the Administrative Law Judge will deal only with the application of statutes and ordinances to the licensee' s behavior, without prejudice to the licensee in the course of judicial review. Stay of Proceedings The licensee argues that if Alleqations One through Five are not dismissed, the proceedinqs should have been stayed to allow for immediate appeal , or, in the alternative, staped pending the outcome of the criminal trial of David Fan. The licensee cited no authority for his proposition that it constitutes a violation of a licensee' s civil rights for an Administrative Law Judge to issue a recommendation regarding liquor license sanctions while reserving constitutional issues raised bp the licensee for judicial determination. Nor is anp authority cited for the proposition that a licensee' s rights are violated when an Administrative Law Judge issues a recommendation regarding liquor license sanctions while related criminal proceedings are pendinq. The criminal proceedings are directed aqainst David Fan, who is an officer and director of MFL, Inc. , the licenseholder of the Belmont Club. David Fan also was an officer, director and sole shareholder of Dancinq Angels, Inc. , through sprinq, 1988. David Fan testified for the licensee at this contested case hearing, but asserted his fifth amendment privilege per his criminal lawyer' s advice. This procedure is countenanced by the case law, Baxter v. Palmiqiano, 425 U.S. 308 ( 1976) , although the case law permits adverse inferences against parties to civil actions when they invoke their privilege against self-incrimination. Ibid. However, the Administrative Law Judge in this case chooses not to draw any inference adverse to the licensee based solely on his assertion of his constitutional riqhts. The Administrative Law Judge will not take the licensee' s sugqestion to certify anp of the constitutional questions raised as important or doubtful. Burden of Proof The licensee argues that the City must prove its case beyond a reasonable doubt. "The party proposing that certain action be taken must prove the facts at issue by a preponderance of the evidence, unless the substantive law provides a different burden or standard. . . " Minn. Rules 1400. 7300(5) . Z'he licensee argues that in its Notice, the City alleges violations of law, and th.at in order to prove violations of law, due process requires proof beyond a reasonable doubt. The Notice references criminal statutes articulating prohibited behaviors, but the City seeks sanctions against the licensee based upon violations of ordinances attached to the City' s hearing brief. The Citp needs to produce a preponderance of the evidence to establish these allegations. Admi�6ibility of Hearsay and Police Reports The licensee argues that the City must satisfp its burden of proof according to the Minnesota Rules of Evidence and not by hearsay evidence. Minn. Rules 14.60 Subd. 1 provides that reliable hearsay is admissible. The licensee further arques that police reports, together with all testimony related thereto, that have not been followed by a conviction, must be suppressed from evidence pursuant to Minn. Stat. 364. 04. That statute provides: "The followinq criminal records shall not be used, distributed, or disseminated by the State of Minnesota, its agents or political subdivisions in connection with any application for public employment nor in connection with an application f or a license: ( 1) Records of arrest not followed by a valid conviction. . . " The above statute was passed in 1974. In 1979, the Minnesota Supreme Court decided Peterson v. Mpls. Citv Council, 274 N.W. 2d 918, holding that arrest "reports are admissible in administrative proceedings relating to licenses. " Id. at 920. This is consistent with the policy governing Minn. Stat. 364 et seq• See Minn. Stat. 364.03 Subd. 1. See also Minn. Stat. 13. 82 Subd. 9, distinguishing between arrest and investigative data, and making inactive investigative data open to the public. The Administrative Law Judqe gives no weight whatsoever to the fact that there may have been certain arrests in connection with the Belmont Bar. It is the facts underlying those arrests which may be relevant. The licensee argues that the police report (City Ex. 5) , if admissible, should be given little weight because it was made fourteen days after the fact, at the request of the City Attorney' s office. The Administrative Law Judge concludes that the delap in creating the police report doesn't go to its admissibilitp, but to its weight. Permissible Witnesses The licensee observes that in its Notice, the City indicated that it may call persons "who have a substantial interest in the outcome of the proceedinq; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial interest in the outcome of the proceedings. " The licensee then argues that the City alreadp has set a standard to determine what is a "substantial interest" and what is "in close proximity" , in that Code Sec. 411. 04(b) ( 2) requires that consent of 60� of the occupants and owners of propertp within two hundred f eet of the licensed premises must consent before the City Council will consider issuing an entertainment license in premises subject to an on-sale liquor license. Z'he Administrative Law Judqe rejects the licensee' s argument that testimony must be limited to those persons who own or occupy property within two hundred f eet of the licensed premises. Only two neighborhood residents testified; one testified as to his observations of the Belmont Bar parkinq lot and environs; the other lives across the street from the bar and testified regarding his observations of the same areas. There was no claim of surprise with respect to the content of this testimony and it met the standard of relevance and materialitp which govern admissibility. Alleqation One Allegation One in the Notice of Hearing alleges the "unlawful sale of drugs in the parking lot of the licensed premises by an employee of the licensee on or about November 10, 1987 . " The evidence reflects that one of the Belmont Bar employees, Randy Pape, possessed and/or sold marijuana in the Belmont Bar parking lot on November 10, 1987, and that Randp Pape was present when another employee, Debra Fox, possessed marijuana in the parkinq lot in Januarp or February, 1988. Randp Pape was off-duty when the first incident occurred but nevertheless was suspended f rom employment as a result of his involvement with drugs. Debra Fox similarly was fined and . ,�'�� ° /�.�� suspended per Belmont palicy as a result of her passession of marijuana. Randy Pape was dismissed due to his presence during the second drug-related incident with Debra Fox. The Administrative Law Judge disagrees with the City' s argument that the facts "show an attitude or outlook on the part of emplopees which could onlp have come from management. " There has been no chanqe in bar policy with respect to employees and drugs, and the policp punishes the use of drugs in addition to whatever criminal sanctions may be imposed on the user. One individual, Randy Pape, seems to have been a catalpst in the only druq-related incidents cited, and he was fired bp the Belmont. The City further argues that the above facts show that the licensee did not maintain order in his place of business. Code Sec. 409.08(5) . 'The licensee argues that the "place of business"' was the licensed premises, while the activities occurred in the parking lot. The Administrative Law Judge finds that "place of business" is broader than "licensed premises" , and includes the parking lot. However, the incidents were sufficiently isolated and punished so that it cannot be said that there was failure to maintain order with reqard to drug-related activities. The Citp argues that Sec. 409. 14(a) imputes actions of emplopees to the licenseholder. The licensee points out, however, that vicarious responsibility applies only if the acts of his emplopees are "within the field of their employment" , "in furtherance of his master' s business" and "within the scope of his emplopment" . State v. Sobelman, 271 N.W. 484, 486 (Minn. 1937) . Pape was off-dutp when he posses�ed drugs in the Belmont Parking lot. The City did not establish whether Debra Fox was on-duty when caught with marijuana. Debra Fox, whose behavior was not mentioned in the Notice of Hearing, was emploped bp Dancing Anqels rather than MFL, Inc. Respondent' s Ex. A. In any event, Pape' s and Fox' s acts must be considered in conjunction with the punishment administered bp the Belmont management. The Administrative Law Judge does not believe that the isolated incidents involvinq Pape amount to a "danqer to the public health, safety and welfare. " Sec. 310.06(b) ( 7) . The Citp arques that the incident involves a violation of laws havinq a reasonable relationship to the licensed activity. Sec. 310. 06(b) (6) There is no evidence to indicate that the drug laws are "related" to the licensed activity--no evidence that drug activities are a particular problem at liquor establishments, for example. Nor does Pape' s activitp rise to the level of a nuisance. In any event, there is no vicarious liabilitp provision in St. Paul Leg. Code Sec. 310. Allegation Two Notice of Hearing Allegation �ao alleges "Ci]nterference with police officers in the performance of their assignment by an employee of the licensee on or about January 14, 1988. " (date amended by stipulation) . The evidence reflects that a Belmont employee, Jerry Meinhof er, did in fact yell inappropriately at an officer who was doing his job investigating possible prostitution outside the Belmont. However, management immediately apologized profusely f or the employee' s conduct, and the employee apologized as well. This kind of incident has not occurred again. Again, the Administrative Law Judge disagrees with the City' s argument that Meinhof er' s action shows "an attitude or outlook on the part of employees which could only have come from management. " The isolated incident does not constitute a violation of Sec. 409. 08( 5) , requiring a licensee to maintain order in his place of business. While Meinhofer' s act map be imputed to the licensee under Sec. 409. 14(a) , it must be considered toqether with the apologies, and the totalitp of the acts do not reflect bad moral character on the part of the licensee. Since the licensee clearly did not condone Meinhofer' s acts, he cannot be punished under chapter 310. In fact, the evidence reflects a consistent pattern of cooperation with the police, insasmuch as the police patrol the Belmont regularly without interference, and the Belmont management is responsive to police requests. Alleqations Three and Four Notice of Hearing Allegation Three indicates the "unlawful employment by the licensee of a minor for a sexual performance in violation of Minnesota Statutes, section 617. 246 on or about February 2, 1988. " Allegation Four indicates that the licensee permitted "a minor to enqage in a se$ual performance in violation of Minnesota Statutes, section 617.246, on or about February 2, 1988, on or visible in the licensed premises. " The evidence reflects that T.D.M. was 13 years old when hired by Dancing Angels. She filled out no emplopment application. She lied about her aqe. She testified that she was asked by Nancy Osterman whether she had her identification card and replied, "No. " According to T.D.M. , Nancy Osterman responded by saying, "Make sure you bring it in because you need it with you at all times. " On the other hand, Nancp Osterman testified that T.D.M. had a birth certification when hired on Nov. 14, 1988. Ms. Osterman' s testimony lacks credibility in certain particulars. For example, Ms. Osterman insists that T.D.M. was not engaging in the activities described bp the police on the night of T.D.M. ' s arrest. No birth certificate was recovered or introduced in evidence. Nevertheless, T.D.M. was not a verp credible witness, either. It is certain that she lied to Ms. Osterman about her age in order to get a dancing job, and that she lied to the "Unbank" to qet an I.D. It also is uncertain how seriously she took the instant proceedings. For example, she qave a funnp qrin when testifying that the reason she was dancing and gave a false identification was because she didn't want to be a prostitute. Her demeanor suqqested that the testimony was a lie. The Administrative Law Judqe rejects Ms. Osterman' s testimony and cancludes that Ms. Osterman asked for identification, requested that identification be produced in the future, but didn't insist upon it at the time of auditian, relying instead on T.D.M. ' s lie. The Administrative Law Judge doesn't accept bartender William Papes' testimonp that he checked T.D.M. ' s identification every night when she worked. He didn' t know what form of identification she used, and didn' t recoqnize the "Unbank" card, statinq that it was not a verp reliable source of identification. Nancy Osterman testified that she thought this testimony was incorrect, and that the policy of checking dancers' I.D. every time they danced was instituted after the T.D.M. incident. Minn. Stat. 617.246 Subd. 5 provides that it is "unlawful f or a person to . . .employ . . .or permit. . .a minor to engage in . . .any sexual perf ormance if the person knows or has reason to know that the conduct intended is a sexual performance. " T.D.M. , a minor,engaged in a sexual performance on Feb. 2, 1988. The licensee argues that the licensee did not emplop CT.D.M.7; Dancing Angels, Inc. "11did. This argument appears to be a technicality, but correct. MFL and Dancing Anqels each act through the same aqent, David Fan. When T.D.M. was hired, David Fan was actinq as agent for Dancing Angels. When T.D.M. was dancing, however, David Fan was actinq as agent f or the Belmont. Assuming for the sake of argument that the licensee hired T.D.M. , the question becomes whether he intended to hire a minor. The licensee argues that the City has failed to sustain its burden of proving that the licensee intended to hire a minor. Minn. Stat. 617.246 Subd. 5 provides that a mistake as to the minor' s age is not a defense. Even if the statute did not impose "absolute liability" in regard to age, the Administrative Law Judqe aqrees with the City' s argument that a reasonable person would have inquired further about T.D.M. ' s aqe, despite her mature appearance. However, the evidence does not support a conclusion that David Fan employed T.D.M. for the purpose of enqaging in a sexual perf ormance. He was present at her audition; but the record does not reflect what she was asked to do there, or on the "dance floor. " She didn't converse with Fan at the audition. T.D.M. testified that a "lady showed her wha.t to do and Cshe] did it" at the audition, but she also testified that they "didn't tell Cher] how to dance. " What she actually did during the audition is not reflected in the record. Whether the licensee permitted T.D.M. , a minor, to enqage in a sexual performance is a different issue. There is a preponderance of evidence reflecting that the licensee, through its agents, did permit the minor to enqage in a sexual performance. The Administrative Law Judqe can draw inferences from circumstantial evidence. The Belmont was staffed according to need, and some emplopee must have noticed that T.D.M. was engaging in a sexual performance on the night in question. One employee supposedly was checking dancers' I.D. ' s. T.D.M. engaged in three separate sexual perf ormances on that night. The licensee consequentlp violated a statute reasonablp related to the licensed activity. It should be noted that there are deficiencies in the evidence. There is no evidence that T.D.M. engaged in a sexual performance other than on Feb. 2, 1988. Drug enf orcement agents typically make two or three buys to get by the entrapment defense and make their case with sufficient certainty to warrant acting in a punitive fashion; but the standard repetitive observations were not made here. This is not a situation where she was observed engaginq in a sexual perf ormance, management was given notice, and she was observed engaging in the same activities again. It would have been easy f or an officer to go up to a bartender between dance perf ormances and ask, "Did you see that?" or otherwise establish knowledge to a certainty. It is not a situation where she testified that she was told to dance in a prohibited wap, or even that management watched her dance in a prohibited wap. When asked if David Fan saw her "dancing" (which may or map not have meant conduct prohibited by statute) , T.D.M. responded that Mr. Fan sits in the bar, but she didn' t know if he watched her. She further testified that David Fan never talked to her about dancinq, just told her to get out of the bar when she entered f or pop and cigarettes. The Aqreement with Dancing Angels does not condone activities prohibited by law. Sec. 310. 06( 9) provides that adverse action may be taken aqainst a license if the " . . . licensee. . .has shown by past misconduct. . .that such licensee. . . is not a person of the good moral character or fitness required to engage in a licensed activity, business or profession. " The evidence with respect to T.D.M. may reflect on David Fan' s moral character--or it may reflect his poor ability to manage a business. The City notes that there is an incident regarding another underage emplopee which was not raised in the Notice of Hearing. This incident involved a sixteen-year-old who presented two I.D. ' s that matched up. One was a state I.D. , and one was a copy of a birth certificate. When the situation was discovered, no charges were brought against the Club. The evidence is insufficient to conclude that the Club was culpable in this incident. The City does not seriouslp argue that the activities described in Allegations Three or Four "have created a serious danger to the public health, safety or welfare. . . " Sec. 310. 06(b) ( 7) . The T.D.M. incident does not rise to that level. Alleqation Five Alleqation Five in the Notice of Hearing alleges: "The occurrence of acts of solicitation for prostitution and prostitution-related activities in the licensed premises, on the parkinq lot behind the licensed premises, and in the immediately adjacent area, all of which constitute ( 1) a nuisance, and (2) create or have created a serious danger to the public health, safety and welfare. Such actions ��'�`��.6 have accurred on many occasions throughout 1987 and early 1988. " The evidence reflects that there are numerous prostitutes in the high-crime area of Sherburne and Universitp; that most of the prostitutes remain on the sidewalk or at the entrance to the Belmont parking lot. Citizens have been disturbed by activities of prostitutes in the parking lot, however. Prostitutes and pimps use the bar but their illicit activities are not overt. In Officer Lutschen' s opinion, management is not interested in solvinq these problems in and about the bar. The Administrative Law Judge characterizes the situation as one in which bar management has not impeded the police in their control and arrest functions, but has been passive in its own activities to discourage prostitution (exceptinq the last several months) . St. Paul Legis. Code 408. 08(6) provides that no "licensee shall . . . permit the licensed premises or anp room in the same or any adjoininq buildinq or any adjoininq building directly under his control to be used as a resort for prostitutes. . . " The Belmont Club has been used as a resort for prostitutes. The question then becomes whether the licensee "permitted" this to happen. In Sabes v. Mpls. , supra, officers were propositioned in the bar on eiqht occasions over a half year period, resulting in convictions, and one three occasions, police witnessed leaving the bar couples whose subsequent arrests resulted in convictions for prostitution. The bar representative testified that he knew prostitutes frequented his establishment and knew their identity, but claimed that he had no knowledge of their having solicited. The Court held: The mere presence of persons of immoral character has been held not to violate a statute pro- hibiting the use of a bar as a place to which people resort f or purposes which are injurious to the public morals, there beinq nothing unlawful about permittinq such persons to patronize bars and restaurants in the absence of proof that thep committed violations on the premises. Nor is a single act of solicitation enough to justify a license revocation under a statute which prohibits the licensee from permitting the premises to become disorderly. " Id. at 878. The Court cited with approval cases stating that "there was no safety in ignorance ' if proper inquiry would avail, "' "the word ' permit' implied no affirmative act and no intent� but mere passivity, or an abstainfng f rom preventive action, " and concluded "that where , as here, the evidence discloses that the licensee knew prostitutes were frequenting his establishment, and numerous convictions resulted from acts of prostitution solicited on his premises, he is charged with knowledge or such activities and further proof is not required to sustain the revocation. "Id. at 879. In this case, Officer Meyer observed only one prostitute in the bar, apparently doinq nothing illegal. Officer Lutschen was the only witness who testified that the bar premises are used by prostitutes for picking up customers, but he did not make any arrests in the bar, presumably because no activitp was observed inside which would provide probable cause for an arrest. If the activities of the prostitutes did not provide probable cause for an arrest and were inactive inside the bar, it would be inappropriate to penalize the bar management for inaction. Cf. Sabes v. Citv of Mpls. , supra at 878: "CIIn the absence of direct evidence that defendant had knowledge of immoral practices on his premises, the illicit commerce was indulqed in so openlv and for such a lenqth of time that defendant must have known his hotel was beinq used as a house of ill fame. " (emphasis added) . It is not as if prostitutes shout their invitations to customers. Sec. 310. 06( 7) of the Code provides for adverse action aqainst a licensee if the "activities of the licensee in the licensed activity create or have created a serious danger to the public health, saf ety or welfare. . . " While the prostitution activities described are obnoxious, they do not rise to the level of "serious danger. " Minn. Stat. 609. 74 defines that a public nuisance occurs when " . . .bp an act or failure to perform a leqal duty Ca person7 intentionally . . . ( 1> . . . permits a con- dition which unreasonably. . .endangers the safety, health, morals, comfort, or repose, of any considerable number of inembers of the public. . . " The prostitution activities described in this case endangered citizens' comfort or repose. Minn. Stat. 609. 74 is reasonably related to the licensed activity. St. Paul Legis. Code 310. 06(b) (6> . So is Minn. Stat. 561. 01, which defines a nuisance as "Canything7 which is . . . indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. . . " The City has not proved that the Belmont is the source of prostitution in the area, nor does it have to. The situation at the Club constitutes a neighborhood nuisance. There have been recent efforts to correct the problem by the Belmont management. So long as the current level of diligence is maintained, no punitive action in the form of revocation or suspension of the Belmont licenses need be taken. However, corrective efforts bp the Belmont manaqement map be merely a response to this contested case proceeding. Additionally, the fact that the Belmont has taken steps recently to control the nuisance doesn' t erase the fact that a nuisance has occurred. A recommendation for action is made to sustain these corrective activities which seem to be effective in reducing prostitution-related activities in the Belmont Club and its parking lot. Current efforts to tighten up the licensing ordinances also are laudable. Some questions that might be addressed include the f ollowinq: What laws are "reasonably related" to the licensed activity? Will the violation of any criminal law impact on a violator' s license? Are only liquor law violatfons "reasonably related" to the licensed activity? If those draftinq the ordinances have some specific laws in mind, whp not list the examples? What constitutes a "serious" danger to the public health, safety, or welfare? What behaviors evidence a lack of "good moral character"? Tighter ordinances will provide more guidance to bar owners. cg I I ,� �.. ,�e°•`'��>� ,�a . �, S��I�. '" " \ CITY OF SAINT PAUL �� '� � ��'�� ; �; ��, :_., OFFICE OF 7HE CITY ATTORNEY ?;� iii'i,ii'ii �� '.. /;' �;m -- EDWARD P. STARR, CITY ATTORNEY ��'"�.u„�,�°„��'`��l 647 City Nall, Saint Paul, Minnesota 55102 612-298-5121 GEORGE LATIMER MAYOR RECEIVED August l , i9ss AUG - 11988 CITY CLERK To : Albert B. Olson City Clerk From: Philip B. Byrne� Assistant City Attorney Re: In re the Belmont Club Licenses Please accept for filing as part of your record and files on the above matter the attached Exceptions to the Findings , Conclusions and Recommendations of the Administrative Law Judge. I understand this is nresently scheduled for argument by the parties on the August 11 , 1988 Council agenda. I will appear for the City License Inspector. I enclose an original and seven copies , and ask that they be distributed to the Council members in the same manner as the Report of the Administrative I.aw Judge . Encs . cc : Mary F. Seymour Attorney for the Belmont Club C � �',�, r, { �.t�'��..� � ,, ,�- ;�;Wa,.,. ��.,j_� � .,% � � ' • . LICENSES ' •�'�� 4 810.05 _ ' d H L � ��'�� ' ' council shall fol)oal t��e rocedures for notice and (b) Notice.i In ea P ' adverse ac- bearin� � set forth in Section 310.05. W'here the tion is or a*�ll be con the council, the applica�ion for the grant, issuance, renewa] or coimcil shall�in a�riting notify tbe app�icant or transfer of a Class ffi license meet� al] the re- licensee that adverse action may be tz.keA again�, qui,�-ement of lav�•, and where there e�.ists no ground the license or application, and that he is entitled fo- ad��erse action, tbe council shall by resolution to a bearing before tbe council. The notice shall ci�ect t�:a� the inspect.or issue said license in ac• be served or mailed a reasonable time before the cordance w�ith laa�. . hearing date, and shall stzte the place, date and te) Appeal,• C1nss 1 or Ctnss II licenses. An ap- time of the heasing. The notice shall state the peal w the city council ma�� be taken by an�� issues involved or grou_nds upon �•hich the ad- person ag�rieved by the grant, issuance, renewal verse action may be sought oz baced. The council or transfer of a Class I or Class II license; pro��id- may request that sucb written notice be prepared ed, bowever, that tbe appeal sha11 have been�filed �d served or mailed� b5- tbe inspector or by the w-ith the city clerk within thirty (30) days after city attorney. t�e action by the license inspector or director. (c) Hearing. The hearing shall be held b� the The on)y grounds for appeal shall be that there council, which shall afford the applicant or the has been an error of ]aw in t�r'e grant, issuance, licensee an opportunity to present e�-idence and '• � rene�•al or transfer of the license. T'be appeal argumenf, as v.�ell as meet adverse testimonv or shal) be ir, .��riting �ad shall set forth in particu- e�zdence by reasonable cros�-eaamination and re- � lar the alieged errors of lau�. The council shall �uttzl e�idence. The cauncil ma5� in its discretion conduct a �earing on the appeal a-ithin thirty(30) permit other interested persons the opportunity da�•s of t},e dzte of filing and shall notify the to pre�nt tes;,imony or e�-idence or otherw-ise par- JicensEe a�d the appel;ant at least ten (10) days ticipate in such hearing. p-io� s th_ hea.,-ing date. The pro:.edures set forth (d1 Licensee or npplicant may be represented in Sectior, ?�1G.0�, insof2r zs is practicable, shall �E ]�censee �r applicant may represent himself a�;�l_� to t?,is �earing. t ollov.-ing the hearing, the • council *;�::�� z.�irr� or remand the matter to the or choose to be represented by another. , ir.specw: ur di;ector, or ma�• re�•erse or place con• (e) Pecord,• ezidencE The counci) shall receive ci�ions uF.on the license based on the council's and keep a record of such proceedings, including determin2tion that the decision v.•as b�ced on an testunony snd exhib�ts, and shall receive and give ' e^or of lau�. The filing of an 2ppeal shall not stay weight to�e��dence, inc)uding hearsay evidence, t:�e i�suance of the license. �v�•hich pos..��es probative .•alue commonly accepted . �CUQE 1�'J�i, � 510.44; Ord. 2�TO. 17455, § 1, 5-21-87) by reasonable and prudent pe:sons in the conduct of their a$airs. ' �ec. 310.05. Hearing procedures. (fl Council action,• resolution to cont�a,in fi.n.dings. (a? .4duerse action,• n.otice and hearing require� VS'here f.he council takes adverse action �•ith re- ,Tents. In an}• case where the council may or in- spect to a license, licensee or applicant for. a li- txnds to consider any adverse action, including cense, tbe resolution b}� which such action is taken t':,e revocation or suspension of a license, the, im- shall contain its findings and deLermination, in- position_of conditionsVupon a_Iicense, or the denial cluding the imposition of conditions, if any. ef an 2ppJication for tbe grant, issuance, renewal . , or trans;er of a license, the applicant or licensee �� Additiona.l procedures wh.ere required Where the provisior� of any statute or ordinance require �ha:l be �i�•en notice and an opportunity to be additional notice or hea�-ing procedures, sucb pro- he�.�d � pro.�ded herein. The�council may con- �sions sha]] be complied v.-ith and shall super- sider such adverse act.ions when recommended by �e inconsistent provisions ofthes.e chapters,'I'his the inspector, by the cirector, by the director of shall include, v�•ithout limitatSon by reason of this zr,`� executive department established pursuant specific reference, Minnesota Statutes, Chapter L:, Chspte: 9 of the Cha_rter, by the city att,orney 364, and Minnesc�ta Statutes, Section 340A.415. o: an its o�.•n initiative. c,,PF. !:o. 1 . 2031 STATE OF MINNESOTA AFFIDAVIT OF SERVICE BY MAIL COUNTY OF RAMSEY Patricia Christjaener, being duly sworn, says that on June 29, 1988, in St. Paul , Minnesota she served the attaehed Respondentts Reply Memorandum on City Attorneyst "� Office/Phil Byrne, by depositing a copy thereof, properly enveloped, with postage prepaid, and addressed to him at 6�7 City Hall , 15 West Kellogg Boulevard, St. Paul , MN the last known address of sueh person in the post-office at St. Paul , Minnesota. � . /r' ��,_ �� Patricia Christjaener Subseribed and sworn to before me this 29th da 'n��M�,^"^�,^�r,:' ;., .`.,,. `,,,:�-,� Y DAWN J. f�kOULX � NOTARY PUBLIC-MINNESOTA �� June, 19��. ,,.. RAMSEYCOUNTY My Comm.I�x�lr�e Mry lY,}g�l r v V W WvW VvwV W V VvWYVYYNN�fN�@lyyy! Notary P ie r : . LAW OFFICES I�:LTRzNiAN, GRANT, , BI,UTH & BART�FR A PARTNER5FIIP OF PROFESSIONAL CORPORATION��:+V�IY�D -- 2404 Stevens Avenue South Minneapolie,Minnesota 55�04 �si��s7i-soo�. �U L � 1988 �D�iM�WE Marc G. Kurzman '�i�� — Mankato Carol Grant �i, �/- � � Manahan Linda M. Oja1a Joseph P. Bluth James E. Moon Ann B. Barker (507)387-5661 RF�EI�ED JU� 1 Z 1988 o-� C�T�•C�ERK July 6, 1988 a� � George Bec} Offi Administrative Hearings ' th Floor, Flour Exchange Building 310 Fourth Avenue South riinneapolis, MN 55415 Re: In the Matter of the Licenses of the Belmont Club Dear George: �� Enclosed are ffp�r copies of the Findings and Memo in the above-entitled case, and affidavits of service. You have the record. Sincerely, `�� Carol Grant v� CG/tw enc. Attorney�admitted to practice in Florida,Minnesota and New York . ` � �� -/��'� ` ' City-88-021�-Cr � 5:3-M101-��l27--L� STAT� OF �i INi�ESOTp F�� OF�TC� qF AD�i Ii�ISTFtAT IVE HEAI�TNGa JUL ` �`�� FUk THE CTTY pF 5T. PAUL /��l,W��IVE HEA��IM;e Ir� the �f�tter of the F Ii�D TNGS pF FACT , Or�-s31e Liq��or Licer�se C0�lCLUSIONS, ANI� for the Eselmor�t G1��t� kECQiMNfENI�ATION Tne at�ove-er�titl�� m�tter c:ame ar� for he�rir�g k�efore A�iministrative Law ,7u��e Caral Gr�r�t or� M�y w4, 1988, ir� the Faurtt� Floar A�.�a�itori�am, St. Y�U1 F'��t�lic Library, St . �:��1 , I�ir�r�esota. Pursuar�t ta the stipul�tior� af bot� p�rties t�erein, th� t�e�rir�g ir� tt�is m�tter cor�cl�a�je�i on :I��r�e M1 , 1988, tt�e ��3te of receipt of th� fir,�l t�rief of tt�e licer�see. Yt7ilip I�yrr�e, Assist�r�t City Attorney, r�ttnrr�ey for th� City of St. �a��l-Lic�r�se Tr�spectar , G47 City H�11 , St. I'a�al , �f�! �510u, appe�re�� or� Geh�lf of tt�e City of 5't. ��1 . �3mes E�resr►ahar� ar�� i��ry 5eymour , Cc�ct�r�r�e 8 �resr��r�, 24 E3st �a��rtt� St. , �t. P3�JJ. y hS�! �:;101•°10�.79, �ppeare�� or� k�eh�lf ax the licensee. Tt�is keport is sut�mitte� to tt�e St. P.��1 City Caur�cxl p�.�r�uar�t to 5�ctior� 310.05 (c-1 ) of tt�e 5t. F��u1 L��isl�tive Code , STATE�fENT 0� I55UES Tt�e issues t� t��+ �:i�+termir�ed ir� this proc��ir�� are wt�ether sar�ctior�s st�ould t�e imposed upo�� ar�-s�le liquar licer�sehol��er �fFL, Tr�c. , d/b/3/ the Iie'lmor�t C1�.iG t�E'C3U5P t 1 ) �r� off-��ty emplayee pnssessed d�ruqs ir� the Relmont p�r�in� lot, c�usir�� L�elmor�t mana�emer�t tn susper�� ar��J ther� fire tt�e en�plc�yP�; ( �) �r� emplo,yee ye11e�J at �r�d theret�y interfered witt� � palice officer ir� the perform.�r�ce af his �uties, c�usir�g E�elmor�t m�r�agement to apolo�i�e ta the of�icer �r�� require the emplayee ta apolo3i�e �s well ; (3) :� mir�or , wt�a lie�J at,aut her �ge wher� employe�� t�y I��r�cir�� An�els, Ir�c. , er��a�ed ir� :3 se>;ua1 perform�r�c� whict� cc��al�:i t�� viewe� k�y Belmnrrt Club p�tror�s; ar (4) prostit�.�tion �r_tivities or� az� 3t�out tt�e licer�se�i premises car�sti�ute�� r�eigt�t�orhao�j r��ai��r�ce. Rase�� .�pan 311 0� tt�e proce��i.r��s t�erein, tt�e A��mir�istr�tivp L�w J��e m�k.�s thp follawir��: F II�I�TNG5 QL' �t�CT 1 . Ar� or�-•s31e liq�aor licer�s� is i�el�� t�y t��L, Tr�c. �jlL-�/a/ th� �elmar�t Cl��t� . �fFL, Sr�c. is owr�ed t�y .�r� individual r�ame�j 11:�vi�� F.�r� . Ur�til i��rch 15, 1�788, L��vi�� r� alsa owr��i It�r�cir�� Ar��els, � . � � Ir�r. City �::. 7. h�r�cy Gsterman h�d h�e�n m�r��er of D�ncir�� , pri�el5r Ir�c. , which corpar��tior� s�a�pli�� r�cers to � variety of t��rs ir� �fir�r�esot� an�� Wiscansin . �is. Osterm�r� receive�� ;Q. -3U4. per week. s:�lary fram the Relmor�t �r�� r�ntt��r G�r to m�n�� tt�e ��ncers . Dr� �iarct� 1�, N:�r�cy Osterm�r�, the mar�:�3er of Iiar�cir�� Ar��ls, p�i�� I��vi�J I'�r� �20. �r�� therc�t�Y A�rch.�se�� tt�e stnck. of Iiar�cir�g Ari�elsr �lor�� with �15.-18. i.r� li3t�ilities . i�ow she receives �ppro:•:im�t�ly �lOq. per we�f% of the �1 ,134�. per wee�. tr3i-��ferred tn T�ar�cir�!� Ar��e�.s fram trie B�lntic�r�t. Ti�e rest of the �1 ,�342. is �as�� to p�y ��r�cers. 2. Or� Nav. 10, 1�J�3"l, �t 3pprr�:;imately 10:00 p.m. , pfficer Lier�r�is I�eyer ot�serve�� E�elmor�t B�r employe� Itar��y r1er� F'�pe ir� � silver pick.Up p�rk.e�� ta tt�e re�r af the hause west af th� Tielmor�t. A :f�male w�s Se�te�� ir� the passer�ger se�t r�e.:t to k3n�iy Y�pe. Fiv� mir�utes lat�r , Ufficer �fey�r ��rave t,::�ck. tt�ro��gt� tt�e lot :�r�� s:3w k3r��y P�pe ir� t�e pick.�ap with � t�l�ck. male p�sser��er ,Wher� Officer i�eyer appro�ci�ed t�e pick�p, P'a�e �ttempte�� to hirJ� somethir�� in the frvr�t se�t. Uffacer �feyer subseq�.ter�tly seize�� t�a� of m�ri j��r�� stick.ir�� a�.�t of Papn`s p.�r�t5 pa�:k.et. The t�� w:��. 1 1/'w ir�ches ir� �i�meter , .�r�� 3 ar 4 ir�ches lar��. Ar� a�ditior�al 3 i�a�s of m�mi juar�a �r�d 2 Ti�ai 5'I'.1CI:5 were fo�.�r�� ir� the pick.up �love bo::. �er �elmont I�ar policy, Rar�,�y P�pe w:as s�asper�de�� from employment for a perio� of time as � res��'lt of this ir�volvemer�t with ��r��s. 3. Ir� J�r�u�ry ar �et�ruary, 1�88, Officer i�eyer a��ir� saw Rar�dy P�pe with a ��ar�cer ir� the Belmor�t ��r p�rk.ir�g 1ot. He �15a ot�serve� a sm�ll tray with a �reen leafy su��star�ee ar�� ci�arett�.a p3per . Thc� ��.�r�cer a�mxtterJ th�t the m�ri j��ar�a w�s t�ers. Per E�elmar�t H�x palicy, tt�e r�ar�cer , Debr� �o.:, was s��spended from employmer�t far :� nerio�� af time �r��j wa� fir��. �tar��y Y�pe w�s �151p155E'�� . 4. The s�le of ��r��s t�y ft�r��y P�pe acc�arr�� wt�en R�r�dy P:�pe w::�s oft-��ty. After tt�e�e ir�ci��er�t5, ar� att�r��ar�t w�s hire�� to monitar tt�e L�elmont p.�rkir�� lot G or % r�i�t�ts per week. . �. Or� .7�r��3ry 14, '1'�)8f3 �t :appro:•:im�tely �:00 p.m. , (lfticer Lier�r�is �f�yer �t�serv�� two womer� loiterir�� or� tt�e corr��r of L1�le �r�� Sh�rt��rr�e. Or�� of ti��m w�lk.e�� ir�ta t�e E�elmor�t park.in!� lat �r�d t��an �ppro�Gt�iir�� mer� leavir�� tt�e t��r as they walke� to their c�rs. 5ne Er��age�� ar�� m�r� ir� cor�vers3tiar�, t�ut r�ott�ir�g came af it. G. As Officer iM�yer appra�ct�� to GO feet northe�st of tt�e t�•�r , ir�� the p�rk.ir�� :lot, boUr�cer .7erry �feir�t�of�r yelle�� t him, 'This st�it '� �o�:t� Stop. . . You c�r�'t t�e ��oin� ti�is s�it here. . . I want yc�u a�at r�ow. ° 7. 5�ortly .�fter Meir�hofer 's autt��rst, the Belmor�t B�r m.�r��er :3pologi�ed pro.fusely for hi� behavior ta (]fticer �ieyer . �f3n.��emer�t t�ad r�ever trie�i ta �iiscoura�e tt�e police from � . ' p��trallir�g tt�� p.�rk.ir�� 1ot , :�r�� ir��ic•�te�� they wo��l�� con�er•�te , with �r�yt�ir�g the polic� w�r�t�� dar�e. Two t�a��rs later , i��ir�hnfer �lsa ��o1c��i�E�� to Uff icer t�eyer , altno�a�t� somewh�t less �r�th��siastic:�lly. i�eir�hofer ria lor��z� work.� �t tt�e Etelmc�r�t E��r . 8. Ir� late �lovemt�er ar ��r1Y Decemb�r , 1987, a j��ver�ile t��vii-�� ir�iti�ls T .D.M. �pplied for empl�yment with I�ar�cir�g A��!'-�els, Ir�c. The jak� req��ire�� Mer ta ��r�ce ir� a gl�ss cuk�icle �dj3cer�t to the .�rea wt�ere �iri��k.s are s�rve�j ir� thp E�elmnr�t Es�r . The cUt�icle was twer�ty or twer�ty-five feet t�y fifteer� feet. i.D.M, w�s t�arr� or� ;J:�r�. 1'l , 1974. Sh� w:�s 13 ye�rs ol�� wt�en she w�s t�ire�. She r�ever fille�� o��t �r� applicatior� for employment, �r��i 1 ie+� at�oUt ner �� to D�r�ciw�� Ar��e1s rn�r�3��r Nar�cy Usterm3r�, wt�er� she ask.e��. She ther� performe�� ar� a�rditiar�. I�avi�l F�n w�s preser�t �t the �u��itior�. at�e was hire�� k�y I��vid F�r�. 9. T.I�.M. si�ne� a °T�ar�cer Agreem�r�t° with A�r�cir�9 Ar��e1s� Ir�c, which provided, amor�g other tt�ir��s, th�t st�e w�s �n ir��eper��er�t cor�tr3ctor , free to e>;ercise her own jud�mer�t a� to costumir�g, e:;otic ��r�ce routir�e�, :�nr.i m��sic used '�s limited Gy :�pplicat�le laws ar�� ordir��r�ces„ " kespor��ent's E>:. A. ihiz A�r�emc�r�t a'lsa �pe11e�� out "kespor�sih�ilities of L��r�cer , ' ir�clu��ir�� that ' C��]�r�cer shall �k�i�:ie t�y all �pplic�bl� l�wsy si:�i:wtes, or�Jin�r�res �r�� re��.�l�tii�r�s �overr�ir�� e:•:otic ��:�r�cir��. . . C•�r��j] st�all r�at. . .cammit 3r�y felor�y. . . " Respar�d�r�t 's E.:. A. This A��r�em�nt w�s e::ec��te�� ar� ;1�r�. A , 1"�88. E;: . A. Ever� tho��h T.L�.�i. si�r�ed the A�reemer��t with Lt�ncir�� Ar�gels, Tnc. , st�e �..ir��erstoo�� th:�t she worke�� fc�r t�e E�elmar�t Cl��t�, �r�� th•�t her t�oss was I�avi� F�n . 10. ' Liar�cir�� pn�els' are ir��tr�.�cted tt��t they c�r�`t touct� themselves ir� tneir �er�it�l �r�:�s. Tt�� 5t. P��.a1 Legis. Co��e wt�ic� relates to this s�t�ject is r�viewe�� with the dar�cers perio�jically, �r�� ther� i� a zi�r� poste�� ir� the ��ncers' rJressir�g roore wt�ict� states: "You c�r�r�ot to�.�ch, caress or far��le yaur t�re�st, t�Uttock.s, �n�.�s or �er�it:als. Tf yAU rar�' t Follow this r��le you wi11 lase ya�.�r jot� ! . . .Att. a11 �i�r�cers, Yvu m�JSt carry your v31i�� iir�r�. I.I1. ar� yo�� t :�11 times or yau ��or�' t d�nce. 5a �ior�'t lose it. ' Itespor��er�t`s E>:. D. 11 . T.Ti.i�. loak.s o'l�ier th�n t�er ��e, �r�� ca�.�ir� t,e roistak.er� for ar� eighteen-ye�r-al��. Wher� st�e �a�.�ditior�e� for Ti�ncir�� An�els, st�e w�s wearir�g more make��p tt��r� sh�+ di�� ir� court , ar�d t�er hair was st�orter , ar�� stoo� up more. 1�. T.Li.M. procur�� r� ider�tificatior� c:ard fram tt�e pUr�t�ar�k." ar� Ii�c. 8, 1��37. City E>:. ::. C7r� tt�:�t i�jer�tifir�tior� c:�rd, her t�irth��te is st�owr� �s l�-1%-G8. City E::. 2, :1.3. As a "Ii�r��ir�� Ar��el ' , T.I�»�f. w•�� p�i�� appro::im�tely �10.4U per hour plUS tip�s, wt�ict� were st�ack. ti�rau�� slots ir� the gla�� r•�cir�3 c�� t�y B�lnior�t p�tror�s. 5�e w�s pai�j witt� :� Uar�cir�� Ar��els, Ir�c. check., s�i3n�� t�y Ii�vi�� Fan. City E::. 3. St�e work.e�:i , ^ � si:; ��:�ys per we�k.. Ii�vi�� F�r� ar�t�i .� t��rt�r��er , Stierry, were preser�t ir� tt�� k��r �iurir�� T.T�.�i. `s perfarmar�ces fron� time to tin�e. Li�vi�� Far� wa��l�� tell T.Ii.M. to leave tt�� t,�r if 5t�e c�me ir� far pap �r ci�arettes, t�ec�use st�e w�s un�er 21 years of :��e . 14e (�r� �et�. �, 19�38, Dfficer Lawrer�ce ka�ers �r�tere� the E�elmont Clut�, h�vin� rec�ived ir�formatinr� tY��t T.Ii .�i� , � runaway from foster pl�c�mer�t, mi�ht t�e ir� the Cl�.�b. Officer ko�ers ��i�� r�at �isc�.�ss tt�e m�tter with D:�vi�� F:�r� or �sk. fvr Far�'s cvaperatinn cor�cernir�� T.I�.i�. , L�:�vi�� F�r� w.�s pres�r�t ir� the Cluk� or� �et�. w'q 1988, 3r�d Officer Ro�ers ch�r�r.ter:i:er� tt�e Clut,'s �er�eral :3ttit��e tow�r�� tt�p palice �s "more th�r� caoper::�tive. ' At �ppra::im�tely 1Qdq0 p.m. or� Fek,. w, Officer I�o3ers ak�serve�� T .L7.1�. we�rir�� t��ltc�r or k:�ik.ini tap witt� � m:�tchir�� n�ini•-•sk.irt. Wt�ile �1ar�cir�g,T.I:�.�i, e>;pos�� her p�at�ic �re�s �r�� U'�'�OCk.5 by 19.ftir�9 t�er sa.irt �r�� t�y 5t]U3��lt'�� wt�il� f�cir�� m�les se�te�� t st��esir�e. Wt�i1e sq��ttir�g, T.Lt.M. performe�j several pelvic ti�rust� �r�� spre�� t�er le�s in 5uch � m�nner as to e:<pose her ir�r�er va�ir�al �rea. D�.�rir�� a secor�d sar��, T.L1.Mf� ret�arne�� to the st�3e wearir�3 �r�ly tt�e to� �f t�er cost��me �r�� contir�Ue�i to dar�ce ir� a simil�r m3r�r�er , ir�cluding the far�dla.r�� 3r�� tauchir�� bf her t�reasts �r�� er�it�l are3. I��rir�� t�ird son�, T. U.�f. ret�arr�e�J ta th� �ta�e we�rir�� only hi�h�-t�eele�i shoes. She tt�er� cor�tir��e�� to �i�r�ce as previously ��e�crit�e�� 3n�1 alsa 1�y ar� her b�cl, witt� her feet ar� ti�e st�9e, whil� ben�in� her kr�ees at � �JO ��egree ar��le. In this positiqr�, �.U.M: t�ri��ed her t,�c�, sprea� �er le�s, �r�d performed numeroUS pelvic 'tT'1TU5'�5 tow3r�� the p�tror�s. This m�r�e��ver was arcomp.�nie�� by ti�e to��chir�� ar�d fon�lir�g nf the t,rea�ts �r�d ger�ital are3. 15 . The City Attorney asked ptficer ko�ers tn m3k.e nut 3 supplemer�t3ry police report, descrit�in� T.D.M. 's activities ir� more �iet�il , which report w�s complete�� or� Feb. wv, 1�88. 1G. The Tiar�cir�g Ar��els policy is th�t a fem�le has ta be 18 years of �ge to ��3r�ce. If ��r�cer� are �.ar��er3g�, they :�re not permitted in tt�e t��r . L1�ncer� currer�tly are req�aire�i to t��ve � v�li�� Mir�r�esot:a II� or ��river 's licer�s� ta verify tfieir ��es. Tt�is represents a tigt�ter�ir�g up af i��E�ntific�tior� req��iren�ents; �t tt�e time T.Ii.M. w�s hire��, ott�er k.ir��a af i��ntific.�tivr� were �ccept��. The Ur�k�ar�k IIi w�s r�ever �ccept�k�l.e. 17. f:r�owr� prostit��tes It�iter ir� the Ur�iv�rsity �r�� h�rt�urr�e are�. Tt-�ere �re 3•-15 prostit�.�tes warkin� the St�erb��rr�e are� per ni�ht, deper��ir�� r� w�ere the police c�rs :ar�. They c�r� k�e ot�serve�� ar�� the si��ewalk to tt�e fror�t, t��ck. �r�d si�e o�' the E�elmor�t Cl��t�. They car� t�e ot�serve�� insi�� the Belmant park.in� lnt, talkir�3 to p�ople le�vir�3 tt�e Relmant. Gr�e r�ei�t�t�ort�oo�� vi�il:�nte, Ni�r��e'1 �ieler�r�e:, has ot�serv�� prastit�.�tes �ppro�chir�� cars in the lat five times ir•� tt��e last two years. Nei�i�it�orhGa�� resi��er�t �r��ce Eiser�mer��er h3s set�r� �rnstit��te� ar� Sherk��arne •at the entrance to tt�e lot ar� r�umerous acc�sians �i��ring 1�787-8£3; t�e t��s Seer� prostitutes withir� the lnt c�r� �rcasior� :�n� has at�serve�� some er�ter the Clut� . �ir . Eisenmer��er c�bserve� such �activities . ' ' �''� - ,�ty�'� +� . � ��:�:i1y ar every atner ��ay ur�til t�� l:�st m�or�tn . Afficer Ch:�rlea , L��tSCt��r� t�as car�t:�ct witi� pro�tit�ate prok�lem� ir� �r�� t�o��t ttie T�elmor�t �bo��t tw� times per r�igt�t. tJfficer LutscPier� t�eliewes t�e ha� ma��e c�r�� rre�t ir� the �elmc�r�t p�rk.ir�g lat.T�ere �re mc�re prU�tit��tes on th� si��+w31k. th•3r� .�r� ever seen ir� tt�� lot. 5ome af the prostitute� �o ir� the p�rkir�� lat ta �va�c the police. The Eselmor�t p�rk.ir�� 'lot 3150 i� �rse�� t�y p�tror�s of tt�e F3ust 3r�� Flick. tt��aters, altt�ou�h mar��emer�t t��s �ttempte�� to tI15COUT=�!�C' this. It is q��ite cammor� to ot,serve ��israr��e�� cor��nms ir� the p�rkir�g lot ar�� j�eer�t streets. F�imps .�r�d pro�tit�ates t�ave t•�eer� ot�serve�� er�terir�g ttie E�elmar�t. Ir� ti�e wir�ter , these peaple may t�e ].o�k.ir�� f�r somepl3ce w�rm . Tt�e recar� cor�t�ir�s little evi��er�ce re9�r��ir�� ti�e activities af th�s� ar�divi�i�.a�ls ir�si��e the b�r . Offic�r T�er�r�is i�eyer s3w 3 prastit�ate ir� tt�e b3r vr�ly ar�c�, ar�d he ��i��r�` t ir�form m�r��emer�t. tlfficer Charles L�atscher� has ak+serve� pimps sittir�� ir� tt�e b�r , wt�ere prastitutes came ta ��liver money ta the pimps . He h�s ot�serve�� prostit��tes ar�� pimps use the bar for drinkir�� 3r�r� pick.ir�� up custowers. Fie h�s r��ver ma��e ar� arrest insi��e ti�e t��r for solicit3tior�, t�ut t7e t��s m��ie w0•-2� arrests autsi,�e the t��r far salicitatiar� ir�side. 18. The Relmnr�t Cl�rt� ia 1oc�tn�3 ir� .a hig� crimelhi�i� prostit��tior� are�. The I�elmor�i: is r�ot tt�e sc�urce af prostit��tior� ir� the �re�.Pro�tit�rt�s �.�se ho��ses ar, 5hert�+�rr�e. 19. Tt�� telmar�t Club w:�sr�'t 't�r9ete�' for pratest t�y comm��r�ity �c�tior� �ro�.�ps +�r�til recer�tly. Aft�r tne T.Li.hi. ir�ci��er�t, Ii�vid F�r� m�t with t�e vice sq��d to ��isc�.�ss prace��res th�t w�re �oir�� ta t�e fnllowe�� S�t. 5ct��ut� e::pr�ssed hi� ir�ter�tior� to �ive tt�e Iielm�r�t mor� photo�r:�phs af k.r�c�wn prostit��t�s ar�� pimps, b��t w3�r�' t �oir�� to �:ia tt�:at ��r�til 3 pror.e��re was s�•tt1e�J upnr�. City offici�ls met with I3elmar�t repr��cr�tatives or� April 1 , 14J88, ta try ta re:�ch �r� ��reemer�t ta elimir��t� pro�titutior� ir� the L�elmont p�rkir�� l�t. Lt�vid F.�r� ��i�� i�e waul�� hir� � security g��3r�� r�� r�v everytt�ir�� pvssible to elimi.r��te prostitutior� ir� tn� lnt. He requ�ste�� pt�ato�r�phs of kr�awr� prostitute� �n�� pimps. He s��este�� th�t semir��rs be �iver� to t�is emplayees re�ar��ir�g �aw to ider�tify prostit��te� ar pimps. He w�s cooper�tive re�ardir�g �limir�3tir�� the prot�lem, look.in� fvr �ui.�J�r�ce frcrm the pvlice ��epartmer�t. U��rir�� ti�e l�st mor�th, there h�s k�eer� :3 "tremer��ous impravemer�t' ir� th� ��iscour�3ement nf prostitutior� araur�d the Pelmant; Chris, the sec�arity ��ar��, c�.�rrer�tly is �oir�� :ar� 'e:;celler�t jot�� af ' st�aair�g �irls of�' tt�e lot° .D�.�rir�� the last couple monti�is, Belmor�t �mployees h�ve �e�r� mare vi�il�r�t ak�a��t stoppe�� prostitutes �t thp er�trance to the p�rk.ir�3 lnt. TY�e E�elmont p�rk.ir�3 1ot is well-lit �r�� tt�e trees in th� �re3 h�ve t�eer� trimm��. 2U. Th� E�elmar�t mar�3gemer�t h�s �lways caoper�te� witi� the police :�s they cnme throu�h the t��r . The t�ar mar�a�emer�t �llows the police to came ir�si�e and m�we freq��er�t check.s. E�aur�cers ar�� b�rter�r�es� h�ve pointe�� o��t prastit��te� ar�� pimps tn af:t icer� �n�i �sN.e�� fficers q�.�estiar�s re��r��in� wt�ether a w�m�r� is a • � work.ir�� pros•titute. T�e b�r m�r��r t�.�s :��vise�J tiie palice, ' T , thir�k t�e's � pimp; T thir�k. st�e's work.ir��. ° Tt�e bar m�n��er t�3s 3sk.e�� the policc� i.f tt�e t��r h�s tt�e right ta evict k.r�nwr� prostit�ates, especi:�lly if the�+ �re workir�� the t��r . Officer Ch�r:les L��tsct�er� i��s r�ever t�eer� �sN,e�� to evict a prostit��te. !r� cor�trast, t�e t��s r�eer� calle�� ppro:•;im�tely twenty times to evict prvstitutes fram Lenway's Es�r r�e�r tt�e kselmnr�t. T�c� Liquor Licer�se Ir�spec�tor h:�� received cnmplair�ts aL�out p7['05t1t�.1't1AfY ir� relati�n to tt�e Eselmar�t Cl�ak,, hut h:�s r�at receive�� similar con�pl�ir�t� �t�o��t Lemway' s , E�aSe�� upor� the fore3air�g �ir��ir��s of ��ct, tt�e A��mir�i.strative L:�w �u��ge m:�k.es the followir��: G0�lCLUS ICINS 'l . The Ar�mir�istr�tive �.�w ;I��ge �r�d tt�e St . F��.r1 City Council h�ve j��ris��ictiar� over this m�tter p+rrsuar�t to �iinr� . .................... St�.t_.. 34QA. 404 , �Sir�r�., 5t��t.. 14.50 �r�� St. P��1 Le�is. Co��e chapt�.�r 310 8 40�.� 'J:he ��lntice crf Hearing was proper in this m.�tter �r�� 11 prvc��r�l r�quiremer�ts of l�w or r��le h3v�+ t�een f��fille� t�y trie City. 2. 5t. I'aul Legis. CorJe Sec. 44�,bStr) require� the lirer�see to mair�t�ir� or��er ir� t�is pl�ce of b��sir�ess, 3, St. ��u1 Le�is. Ca�ie Sec. 31U.OG (t� } (7) permits tt�e City to t�k.e ��ver5e .�rtior� a�3ir�st :3 licer�see if the '�c:tivities of tt�e licer�see ir� tt�e license�i activity cre:�te ar t�3ve create� a serious ��r��er to the p��t�lic tie:�ltt�, s�fety or welf�re. . . ' 4. St. YaUl Le9is. Ca��e 5ec. 31q.OGtt�) (G) permits the Gity to tak.e ��verse acti�r� ��air�st � �icer�se� if the ° licensee. . .t��s vic�l.�ted any af the provisior�� of these ct�apters, or of 3r�y 5't3'tUtE?� or�jin�r�ce ar re�ul�tinr� re�sor�at�ly rel�tp�� to tt�e licer►se��i activity. . . ' 5. Two isol�te�� ir�ci��ents ir�volvir�� tt�e possessior� of rir�� t�y an aff-�uty employee in the lirensee' s p�rkir�� lot ��o r�ot reflect ti�e licer�see' s f�ilur� to maint�ir� ar�er , p3rtic�.rlar:ly wt��r� tt�e empinye� was p��ni5t�e�� t�y tt�� licer�see. i�or ��a the ir�ci�er�ts constitute activity by tt�e licer�see ir� viol�tic�r� af the 1�w or which cr�:ates � sE�rio��s ��ar��er to the public �'1C3I.t�'1y safety or welf�re. T��as, tt�� City t�as r�ot prove�� viol�tion� of 5t. F�aul Le�. Lade s�r_tiar�s 310.OG(t�) (G) ,310.OG t t�) (7 ) or 4q�J e 0�3(S) ��e to tt�e use oP ��r��a ir� the Etelmor�t par�.in� lot, G. Ar� ir�ci��r�t ir�valvir�� :�n employee �f ti�� licer�see wt�io ,yeller� at � polic� afficer to �Ji�ca��r:��e him frany ir�ve5ti�atir�� possik�le �rnstitutior� outside th� licer�se�J premises does r�at reflect the licer��ee' S f�ilUr� tr� m:�ir�t.�ir� ar��er , p:�rtic�.al3rly wt�er� m�r��3ement �palo�i^e�� imme��iately 3r�� profusely far ttye emplayc�e' s t�et��vior , ar�� req��ired the employee tn �paln�i�.e to the afficer ir�volved. Nor di�� tt�e ir�ci��er�t car�stitute �ctivity L�y the lic�nsee ir� vinl�tiar� of t�e l�w or whir_h cre�tes � , � serio��s d�r��er to t�e p�aL-�lic ri�altt�, �:�fety �r w�lf�re. Thus, the City ��s r�ot prav�d viol�tions of 3t . Paul Le�. Co�:i� sectior�s 310.OG(t�) (C�) , 310.Ota(t�) t7) , ar 409. n8(`,) due ta ir�terferer�ce witt� the pc�lic� t�y � T�elmor�t employee . 7 . �iir�r�. 5tat. G17.24G 5ut��. :: provi.des th�t it is ..._.._.._......_......._.._.._. 'ur�lawf��l far � p�rs�r� to . . . em�l�y . . .or permi•t . . . a mir�ar to er��e ir� . . . any s�::ual perforn�ance if the p�rsar� kr�aw� ar t��s re�sor� to kr�ow th:at the cnr��J��ct ir�ter��e�� is a �exu�l perform�r�ce. ' T�ris stat��t� is r��sor��t�ly rel�te�� to tne licer�se�� 3C"�1Vlt�► ir� this c.�s��. St. P��1 Le�is. Ca��e 310.OGiG) . 8. Dancir�� Ar�g�ls, Ir�c. , r�at tt�e licer�see, employed mir�or T .T�.�f. , wt�o lie�� t�out her �ge ir� nr��er to at�t�in emplaymer�t. T�e City has r�at sust�ir�e�� its t�urd�n oP provir�� th�t T.D.�i. w�s employe�� for the p��rpose of er��:��ir�� in a se.:u�1 perform�r�ce, t�ut has r�ot sust�ir�e� its bur�er� af. provir�g tt�:�t tt�e licer�see permitted � mir�or tn er�3�ge a.r� a s�:.�a�l perfarm�r�ce. 9. St. P.�ul Le�is. Ca�e Sec. 310.OGt�7) provir�es t�at 3��ver�e 3cti�r� m�y t�e t�k.er� :��ir�5t a licer�see if t�e ' licer�see. . .t�as showr� t�y p�st miscor��uct. . .tt��t s�act� licer�se�. . . is r�ot a persor� of the �oa�� mor�l ch�racter or fitr�ess req��ired ta en�a�e ir� � lirer�se� �ctivity, business or �rafessior�. ' 10. Tt�� City h�s r�ot s�.ast3ir�e�� its bur��er� of provir�� th.�t th� licens�� is r�at nf �oo�J mar�l c��r�eter . 11 . �t. ��ul Le�is. Co��e 408.0�3(G) pravi��es th�t no ' 1 icer�se� sha'11 . . . permit the 1 icense�� premises or ar�y raom ir� the same nr �r�y �d jair�ir�� t�uil��ir�g �irectly ��r�der hi5 cor�trol tc� be �a�� :as :� resart for proatit��tes . . . " 1'�. Tt�e City t�.�s r►at s��stair�� it� bur��er� of pravir�� tt�:at tt�e licer�see permitt�� th� licer��e�j premises to t�e �ased 35 � resort for prostit��tes. 13. �iir�r�.___5t�t_a.. GU9.74 ar�d ;GI .O1 prot�ibit r��.�is�nces, �r��i �re re�sor,ak�1� rel:�te�� to the licer�se�� ctivity. St . P�ul Le�is, Co�ie 5ec. 31q.OG(t�7 (G) . 14. Ur�ti1 this sprir��, the licensee pprmitte� � cor�ditior� ir� the Be'lmor�t parkir�� lot whict� conatit��te�� r��is�r�ce. The park.ir�g lat situ�tior� currently is �ccept�t�le from .a p��blic pers�ective. 15. Tt�� att�crie�� Memorar�dum �hall t�e mar�e a part of the ��rnceedir�gs herein. R�s�d upon the faregoir�� Cor�cl�.�sions, tt�e A��mir�istrative L�w :l�r��e m�N.es the fnllawir��: kECO�f�f��f�tAT TON IT IS HETtIEEcY k�CD�iMENI�EI� t�:�t th� City Caur�cil t�k.e ��isciplir��ry actior� ��ainst tt�e licer�see t�y impG�ir�� tt�e fc�llowir�� car��itiar�� upar� tne lir_�r�see: 1 . A m3r�datary p�rk.in� lvt �tter��r�t from r�oor� tc� i=�.A511'�r� �very ��ay tne t��r is np�r�, wt�v�� jat� s�rall � F��r� , (�'�;, . !1� � t�e ta ��iscn��r��e solicit:�tion for prastitutinn ir� 3r�� r��r t�e p:3rk.ir�� lot. 2. Ii-��t the licer�see, by its .��r�ts, p�rsor�ally 3n�� r�i.��htly ��em:�r�� 3�� check. �t�t� ��river ` s license i��entificatior� af �ny ��r�cer visit�le ir� the :I. i.cer�� remises, tn verify tt��t the ��r�c�r is r�ot a minar . 3. Th3t t�� licer�se� M.eep a record af r��me 3w�� i��er�tif ic�tior� ir�fnrmatinr� for ��r�cers visit�le ir� the licer�se�� premises, w�ict� m�y t�e ct�eck.e�� in the ever�t :f+arther q��estior�s are r�ise�� at�a�.�t ��r��erage �13ncers visit�le ir� tt�� premises . 4 . 1�:at the licer�see t�p far�ed �'.:,OOO.UU for ��vin� permitted a nuis�nce, �ai�� fir�� ta G� 5'�3}/@l'� far :� perio�� ot twa ye�rs or� cor��itic�r� tt��t t�e permit na same or �imil�r vio- latinr� of th� r��.�is�r�c� l�ws. T�3'tP�� ti'tis Gti� d�y af ,�ulyy 19E3£3. .l�.Ga:��.�9/�L��.__________ C:�ral Gr�r�t A��ministr�tive L�w ,I��r.��e Yursu:�r�t tn cti:�pter 14.G'�, � cn�y of tt�e ��ecisi�n :�r�� or�er ir� the �k�ave-er�title�i c�se �t��11 t�e s�rve�� upar� e:�ct� p3rty or tt�� party' s represer�t:�tivc� an�� tt�� a��mir�istrativ�: 1aw ju��e I:�y first class m�i1 . I i!'�J�1 c�r a� . i�il�hiUi�;r:t�ll.il.�P`i �.�tl 1'� 1':� :3 1 1 a U{]1^ j. 1 C t3 I"i:i(2 1 i�V�:a t��:�'�.�.�.]I l j�C�.��:.�E?i:�1 il�-i �..1 f i��t-'C �.,i r,?f`'�, 1 i:?f'�iii ::i�.'.� "r',f i�=� t.!:}�1 t?1 '�•�i i:' `:�'4 . �'1 U 1. l.,E�'s 1 E:�1��t�:.1:'�--�. l,C��E:' , 1-1 C'r �.7 3 Y`�: C�� i i 3.?: C::d�t� r }i y�� . 1��i:!"�•.i C:ti?.� fii:3��{? �3 �J':i T` 1!?'�:!J i7.i: �}T't�:l i ni i r�.��r% f�i t7'�:4 L'J{"i's; « �=d 1 1.�J 1''t '�•t:� :.-?'l-•:�'�:•E� .., ��! =Y].Ill ��'�l(? 1 i��r�s f��a Il'I�3 V�?ta t i:� ��1�:�Ol 1'•'s•.: r :i 1'a U 1 t 1�•) G i Y�3'i. `t'.I 1 t? �y� .�r.s:,�::5'�1 C7 I"�•.i: ir� ttyc Notzce uf' !-fca�3r�.r�� ,10 r�at. f'.a1J. ��.t.i��.n ti-�c� �)ra�ar��s. for :I. :�q��ar l �c�r�� r�vca�:�tz�r� �e�. fc�r�tt7 a.r� t�-��a ��L . t�:a�.�l ta�,r.�a.�:al::a�t,xv�k i:o�Je . "1'r7e �:it�f r��c.�c�r��1s ti-�:at. �.�._ :�cta.�,r�=. �rc� r�c+t� 1. �.m�.1:c-�� t�d� t�ti� ax��ir�:3r�c,�� ir� :�r�y �ventr ��n�� ti-�:a�t a.�t n.:a•:a a.r��rerer��t p��wF�r� tv. r�vnl�.� � liq�_�ar 1 �.c�r��e far m�.�.c�ar�duc�t zr� t.nc r.�perr�t.icar� a� -_� :f. z y�.�o r b�.�s a.r�e s�3 . '.l ti� C 1 t y c i t,�� M n��k.r�v z+�w v . C i t t�._o f�._::�.:�..r...._r�'.:�!a.:�.r ......._.._.._.........._.._...._........__............ 1(a (�. W. �,'�� '"19� (�iar,r�. l�y� ? , 'w:�C��.r:._`:'.r._�:_?�.�:`�'._caf;_t1�.r�r�e:�P..a.�..?.=:.q ��'r� 1�! .W , :;�� 71 (�t t n r� . 1�J f�3} , .�r�� H.y,_m�3 r��3_�.t-� �: . C i t}� �� ` S t . !�:��1 . 3:::s:� . . ..._........_..._.._......._..._..................._..._......_.... N , W. ��:�3 ;�;� (hfir•�r,. 1.�i£3:.�� , t.c7 �.'aP�rc�r•t it�. ar��m�r�t. kcvoc:ati.c�riri a.r� tPioh� c�3se�r nc�weverrw�r�� r�� ,�..ir�au:an�t tra cit�,� cn��rtez• prcavxsir,r�=., oa��a.r�:ant�cs or stat��t��. `7'nc� c:�_=..c�=. �:lc� r�ot st•:ar�s� z�r ti�e pr��pt�sitaor� tt�.�t ' ctar,� .��tr,oratu v��te�� tr� mur�ar_ a. �:�.li�Gxe<_�s tc� p�C�=. c�r� 1 �cpr��. . .rcvnr.��La.ar� i�� r�c,�L limxtc�d t��.� tf�c c,r�lirF:�r�c�_=. t'ri��;� rn��y ci�or3<.�r� �t�:� =�iic�pt . ' 'l';ity' :: t�ra.rf� ��•k. �.� . T�� rivil�r��<.� ai 3 :li.c��r��ec� �re �ut�,��ct ta s��c�� con�Jitic�r�s , �.r�c1.�_��in�t i�n� c��.��:�.� :ar��i m.�r�r�er t�:E revor,.�tion * .:�� ttic� lF��i•�'l��ta.ve L-��y m:a}� :�� f`x�l: ta �m�c:�c.Er . Ht��_�.r:!_.`�'..,._Gi..t�'.._c�i.._�.�.i:�.�ka.�'�:E:.� a:;� f� . W. :t�� ila�u tT�ir�r� . ...._ ........ . 1�.147 ',� . r�.�t �� alt��i��t.ly ��tff�r�,r�t w.��, Ur�� w;7c� .3c_�_�pt� :y lic.c3r•�sFx to ��-cii anta�:ic•��tir�� 1 �.7uor �3cc�pt:: t��c� pr �.`lllE?rjE' o�� so dc}ir�� Sa�.11`��[r`'� t,i? t,i'7 r? ��U Y`�:��'I"15 1 111�.?��'��?�:� �.J(.1{)1"� 1 '�, r�'�1 �31"1 O P�:�1 fl•31'I r`�? �ft�:]C'�E'�� ir� t.i�c ��xercx;>t c.�j' f.i�e pc,lac� �c�wer oi� t,t�� munsc�. p:3lit�r �-tr�:ant.7.r��i �:,t�it� lic�r��.'.3•t�3t� v . M:ua:� , �:�� ?� .bl . '::d �,�)�:� . `.3t:�3 (Mir�r� . 1�;�`�i;� t ., ..........._.._................r................ . ��'lf' C��JE'4;t•AU�I 'C:.ft2(l t��cc�m��. wi��1..��c�r� ti-��e.� COI"I��UC�• �:�C-'SC'I` l��l'?�� ].!'� A7. 1f��tl��;r�::; �Jr�n ��,'rirc��.�ii �iUr� z•a �rui��.i.,:it�:�� F�� .� :at��tutr� ar �t � t��au1 cir�Jxr�:�r��:� . r�11�?�::��.ic�ro �Jr�E, +�t��•�:•r �t�E�. 1,ryi� �rnl�awf'��1 ��•:31i: ai' ��z��.�r.�� i r� �t i-�� ,.�r k.i n�a :t o�t n f �k,t��: 1 a.r.�r��:i P r e m a.•��:�a t�y ��r� �3 rn��10�.��G:� at' tr7e 1. icent.��:�. '::,t• . 1' ��1 Le�t . i.;c��je f;�J��. Uci(�) 1`E'i.�UlI''C'� ever}, 1 :t r�r�:�e r t u n��.�a.r�t.�a n ca r��e r i�-� ti i:� N:l:��u �:E L-�u a i r�e a:: . ':i� . T��u 1. l.,Ea�. G��c �U�7 . l� t � i pravl�l�� tii.at ° L:3Jny� �c�. t�� ny cl�rk. N I��yrk.��t�t�r � ::��7L?1'1'�. r St?Y`V�]1'�'t t}T' f'lll�'i1CJ��£ {:l� •3!'��% �. .1CF?1"i��fa tlr?C•t?UI"��EI' s ii-� vi�lat.�.an eax� fi.i•�iC cr7.-�ptea• , :si�.�li t�e ��e��me�1 tt�� :ar.t oi �Gtie ��ni�,l�yer :ar�� lrc�n�e� of �a��c:t� �1�5c� . . . ° '�•t . l�.�ul Le�:� . t�a��F� �07 . tJC�:{r� i st.�t��. �.h::�i: r�c, 1�.c�r�se s�•�a! 1 �� a c.c.�r�� t�c� .�r�yar�e atner t�:�r� .� p�rsar� of ��na�� mc3r��:1 c:i-�:ar.�ctF�r . Tr��aF or��ir��nc�� prcrvx��e s�.a�l:'zcier�t �sro��n��u to ��r�� t�i�e iic�rr�.�� 's ma�:ior� ta dzsm:i.7s A1. .le�,atx�ar� Ur��u A��i��itic�r�.�11y, �it . Y��1 i,e��. C::u�� c•. :;].4. OGtt� ) 4(a ) {�.ul�part� (t11��.�atiar� Or�� . 't't�i:� ��c'tiur� �ermits :��v�r:�e .�c•�txor� 3g��.nc:.�. � Aic:r-.r�s�e ii: n� ' �:�__. v1ai��t�� <�r�}� c��' ttrc pravis�.an=, o�� tt��F� cPi.�pt�rs� . . . ' :aE�e•txc�r� ::31 .C1 af 'tt-r�� t:n�� prc�tii.t�it�:: r•��..iis�r�c•��.I•:nowi.r��t c�r �ra��sl�j� f1C��l. i�jc�r�t .�ctivity wt�7icti :(':�_r, a. l �.t.�t�s ti-�� .�.le a:E ��rur.�� ir� tn�� p:3rk.rn�� lUt o�` .� lzquaz� �`�:�3��llc�r��mrr�t. c:o�_i1�� t�C�'. F_'UI'157.��C?I`Gs�� 3 fi�a7.C�3f1C:E'. `•.:i�. 7�3U1 �C�. �.,�J��E� `:��c� . ;�1p .G� (t�) (i � �:a1st� <.��.a{��c�r�t:7 r�.11��a::�tior� Ur�ra . ��cu -. 31�,�. �JG(t�3 { "l ) �erm�.t�� .��vrrs� acl�iar� �rt�1n_,t � 1 �.c��r��e� wi��•e " L' �t:l�i�� rr�tivL�c.aE:s ot' �tt7c_ 1ic�n5�� in tnF 11r_��r�s�� =:�ctiva.•ly, Cl�=i�.C� GI' r13�1G3 C'I`2•3�•P.�� GI'1C3�Jr; �J��r��.i�r• tc� �.fiG �'1�_lt�11C �7t?3�.�:•i7h i:�•�:k(?'�V GY' Wi?.lI�3I`�� i7T' tlir? llt_G'I'i�h�� c�rt`�rm�a {7t �'1��:� perfc�rm�� '17.�; wark. r,r ,�_:ti�.�it�.� �.r� -:,r� ��r��C.:�,f'e m��nr��r� . "� � A11e�3tiar� Twv 311e�es ir�terferer�ce with police afficers ir� tt�e perform�r�ce af th�ir assi�r�n�er�t t�y �n employee of tt�e 1 icensee. The or��ir�:ance provisions referr�� ta a.n the prece��ir�� twa p�r��r�pt�s support Alle�atior� Two, with the e.;ceptior� of 5e�. w31 .01 , �s ir�terferer�ce with pc�lice afficers cv��'l�� r�ot f�irly t�e c3te�jari:.ed as � "r��risance. ' A11��tior�s Ttiree 3r�� a��r �llege thn �.�nl�w:fu1 emplaymer�t 3n�� t�y� th� licer�see of � mir�or far c,e;;��1 perfnrmar�ces ir� vial�t,inn of t�ir�r�. St:at. G17 .�4G. 5t . l�aul Le�is. Cor�e 310.OGt7) ......._.._.._..._..._......_.._... permits advers� �ctior� :�g�ir��t � licer�see if t�is �ctivit9.as ° CI`�3tL �r �:�ve cr��ted :3 serio��s ��r�ger to tt�� p��t�lic t��lth, 53FE'ty ar welf�re. . . ' St. I'a��l L�3is. C:a�� 310.qCi(t�) t�J) permits a��verse :3ctior� if the licen�eP 't�as shawr� t�y .past miscar�duct. . .tt�at C��] is r�at .� persar� af t�e 9oad moral ch�racter or fitr�F�� require�� ta er�3age' ir� tt�e licer�se�� 3cti.vity. a�c. 310.Ot�(t�) iG) :�lso s�apparts Alle��tior�s Tt�ree �r�d �'o��r , permittir�9 a��verse 3ctinr� :��ir�st :� licensee if t�e 'has violated ar�y af t�►e pravisians of these ci��pters, or of �r�y statute, ar��ir�ar�c� or re��lation re.�sor��bly rel�t�� to tt�e licer�se� �ctivity, . . ° St. Y�uI Leg. Ca�e Sec. 4Q�, i�awever , �aes not s�apport �lle��tior�s Three ar�� Fca��r . Sec. 40�7. 14 m3k.es :� licer�see responsit�le far tt�e acts of t�is employees. Sec. 4U�1.0�3t4) states th�t ' Cr�Ja persar� �rr��er ei�hteer� years n.f �ge may t�e employe�� ir� � pl:�ce wt�ere ir�to;;icatir�� liq�or is sold for consumptior� on the pren�ises. '�remises of licer•�se' is ��efir�e�� in Sec. 409.QG(e) �s 'tt�e comp�ct ar�d cnr�ti�uo��s space r�ame� ir� suct� liceiise. . . ' All 1 icenses �r�r�te�� m��st set fortt� °the e>:3ct lnc:�tior� withir� the t��il�ir�g structure" where liquor S:�le� n��y be m��ie, Sec . �l0�.4G(e) . A special permit is require�� for s�1es af 1iq��nr ir� are3s outsi��e tt�e str�.�cture cor�t�inir�� ti�e license�� premises. Sec:. 40�J.OC�t e) . The E�elmont Bar liq��or Iicer�se pl�c� af t�usir�ess is G1�; lJr�iversity Ave. Gity lE:: . G . Tt�e City Licer��e 'tr�sp�ctor testifie� th�t tt�ere 3re fiv� estat�lishmer�ts wt�ere liq��or is so1�� or� or�e �ide of � gl:�ss wir�d�aw :�r�� r��e ��ar�cing o�c��rs t��t�ir�� th� wir��ow; tt��t ar� er�tertair�mer�t lic�r�se, ��i�tir�ct from a liq�.�ar licer�se, i� iss��e�� far the ��:ar�cin� �ctivities . 'tr� t�is case, the ��r�cir�� activiZie� occur �t � stu�iio with a separate a��dres5 �r�� er�tr�nce from tt�� license�� premiseS.SPe .�lso City Attorney ..._........_......._....... Opir�iGn I.etter ��3te�� Sept. 14, 1987, cit��i ir� the licensee's pret�e�rir�� mntior� brief. Code Sec. 40�J.OGte) , the Upinior� letter an� tt�e testimony s��est th�t 5ec. 40"�.q8t4) is r�ot �pplir.at�le tn this c�se, k�ec.��s� there is no ir��icatior� th�t a per�nr� Ur�der ei�hteer� ye�rs nf �ge was employe�� or� tt�e licer�se�i premises. Similarly, Sec. 4p9.0�? prohit�its cert3ir� se>:u31 car�dUCt "or� license�� premises . . . " Sir�ce tne :�llege�� se:;�a:�l �ctivities ��i�� r�ot t3ke place on the license�� premises, tt�is section cannot t,� �.�s�� as a t��si� far adverse :�ction ��ir�st the licer�see. Alle�atian Five 3I.1�'�@5°the occurrer�ce of 3cts of solicit�tior� for prv5tit�rtior�, prostitutior� �r�d prostit�.�tion-related activities ir� the lic�r�se�� premises, on the p�r�.ir�� lot t�ehir�� the licer�se�� pr�mises, �r��j ir� the imme��i3tel.y ' ��jar.er�t �re�, �11 or w�rict� cor�stit��t� ( 1 ) � n��isar�ce, �r��i (�) cre�te or h�ve creat�� a seria��s ��r�9er to tt�e p��k�lic h��Ith, s�fety and welf�re. . . " The St. I�aul Legi�. Gode 408.Q8(G) px�ovi��es th3t: '�!o licer►see sha1l . . . permit the lic�r�se�� premises nr ar�y rnnm ir� tt�e same or �r�y ad joir�ir�3 t�uil�lir�� or any �d joir�ir�� t�uildir�� d:ir�ctly ��r��er t�is cor►trol ta t�e ��se�� as a resort for prostitutes. . . ' TY�is L'o�ie prnvisian requires ��er�ial of the i�otion to Tlismiss Alle��tior� �ive, as does 5ec. 310.OGtG) ,providin� that the Council may t�k.� 3rJverse �ctior� if the ° �.1C�P15L�. . .has violate�d ar�y of the pravisiar�s of these ct�apter5. . . ' incl��din� the r��isar�ce provisior�. Sec. 310.OG(7) permits the Caur�cil tn tak.e a��verse actian if tt�e "activities of tt�e licer�see in t�e lic�r�se�� activity create or h�ve cre�te�� :� seriaus �J�r��er to tt�e put�lir. he�lth, s�fety or welf.�re. , . ` ar�� lso �upports Alle��tior� �iv� ��inst � Mc�tior� to Iiismiss. Subject �f�tter Jurisdictior� f�r� a��mir�i<�trative :��r�cy m�y r�ot cor�si��er the cor�stit�.�tinnality nf tti� st�t�.�tes ur�der wt�ich it oper�t�s . �ic:Kee v. L'o��r�tY...a.f..YFt��mse.Y..r �4� t�.W. �� 4G0 t�fir�r�. 1�7G} . ...._...._...._...._................_..... ......... Cor�s�q��r�tly, the A�imir�istr3tive Law J�� wi11 ��eal or�ly with tt�� pplic�tit�r� of 5'�3't�JtE+5 �r�� or��ir��r�c�s to tP�e licer�see` s t�eh�vior , without prejUdice ta tt�e licer�see ir� tt�e caurse of j��ici�l review. St�y of T�rocee��ir��s T�e 1 ic�r�s�e •�r��aes th3t if Alle��tiar�s Or�e tt�ro�a�h Five are r�ot dismissedy ti�e procee��ir��s shoul�� t�ave been staye� to �Alow for immedi3te appe�l , or , ir� the 3lterr�ative, staye�� per��ir�g the outcome o� the crimir��l trial of D�vi� F�r�. T�e licer��ee cited r�a ��att�ority for his propositi�r� th�t it cor�stitutes .a violation� of a licer�see'� civil ri�t�ts for ar� A��mir�istrative Law �u��e tn issue � recommer��tion re��r��ir�g liq��or license sar�ctions while reservin� cor�stit��tior�al 1S5UBa r�i��d t�y the lieer�see for j�.��ir.i�l �jeterminatiar�. �lor is any ��tt�ority cited Por the propositiar� that � licer�see's ri�t�ts �re viol�te� wher� �r� A��mir�istr�tive Law �ud�e iss��es � recammer�d�tion re��r��ir�� liqunr licer�se sanctior�� wi�ile rel�te� crimin�l procee��ir��s �re per��ir��. Ttie crimin�l procee��ir��s arp ��irecter� ��air�st D.�vi�� Far�, wt�o is �r� afficer �r�� irector of MFL, Ir�c. , th� lic�r�s�t�ol��er of the E;elmont Cl�at�. I��vi�� F�r� 3150 w3s an afficer , ��ir�ctor �r��i �ole st��re�rol��er of L�ancir�� Ar��e1�, Ir�c. , ti�roUgt� spr:ir��, 1�78t3. Ii:av:i�� F�r� t�stific�� for the licer�see ��L tt�is car�teste�� c�se ��rir��, t��at �sserte� his fiftt� �mendment privil��e per his crimir�:�l 1•�wy�r ' s ��vice. T�is procedure is c�a�ar�ten�r�ce� t,y the c�se law, N�::ter v . .............._......._...._... Yalmi�.i�3r�.o., 42� U.S. 3q8 ( 1'�71G) , :�lt�ough t�e C35� l�w permit� .��verse inferer�ces a��inst p.�rtie� to civil �ctior�s wher� t�ey • � ir�vok.e their privile�e a�air�st s�lf-ir�crimir��tiar�. .Ik��i�J.. , Nowever , tt�e A��mir�istr�tive Law Ju��e in tt�is iase CI'1005E75 r�ot ta ��raw 3r�y ir�ferer�ce adverse to th� licer�se� t��e�� salely or� his .�ssertxar� of his cor�stitutior��l ri�ht�. The A��mini5trative Law :I��e wi11 r�ot t�k.� the licer�see ' s su��estior� ta certify 3r►y of the car►stit�atian:�l questions r3i�e�J a{s import�r�t or dout�tf�al . E�urder� at Yroat Th� lir�r�see �r��es t��t th� City m�.�st prove its C35� beyar�d � reasar��k�le �ouL-�t , 'The party propasir�� th�t cert�ir� action t�e tak.er� m��st prave tt�e facts at iss��e t�y 3 prepar�der�r�ce of tt�� evi�j�r�ce, ur�less the s�aGst�r�tive l�w prnvi��es 3 ��ifferer�t t�ur�ier� or st�r��ard. . . ' hiir�n. kules 1404.7300t�) . The licer�se� ar��.�es that ir� its hotice, the City �lleges vialatior�s af law, �r�d ti��t ir� or�er to prove viol�tior�s of l�w , d��e process require5 proof beyor�� reasonat,l� da�rt�t. The �lotice references crimir�al statutes �rtic��l�tir�� prdhit�it��i beti:�viors, t�ut the Gity seeVs s:�r�ctinr�s a�air�st tt�e licensee k�ase�� upon violations of OI`tj].1'1�I1C�5 3'�'t3CI'IE�CI to tt�e City's he�rir�g t�rief. The City r�eeds to prnd��ce a prepor�der3r�ce of ti�e evi�er►c� to estat�list� these �lle�ations. A��missibility of He:�rsay ar�� olic� �teports Tt�e licensee ar��aes that the Gity must s3tisfy its bur�Jer� of praof �ccordir�g to the Mir�neaofi� T�ules af Evi��r�ce �r�� r�ot t�y hearsay evi��er�ce. �f.inn...__Tt��les 14.G0 SUt��i. 1 provides th�t ............. r�li:aGle t�e3rsay is ��missible. Ti�ie licensee furtt�er ar�ues that police reports, ta�ether with a11 testimor�y rel�ted theretn, tt�3t h�ve r�ot t�eer� fallowe�:i t�y a car�victior�, must t�e 5�Jj3[JI'E�5S2� from evi��enre purs�aant ta �fir�r�. Stat. 3G4.04. Tt�:�t stat�ate provi�jes: 'Ti�e fallawir�g crimir�31 recorrJs shall r�nt t,� ��e��, ��istrit��te��, or �iss�minate� t�y tt�e State of �iir�r�esnta, it� ��ents c�r politic�l sub��ivisions ir� cor�nectiar� witi� ar�y applicatiar� Por put�lic emplayment r�ar ir� cor�r��ctiar� with �r� �pplic:�tior� far a licer�se. t1 ) kec�r��s of �rrest r�ot fallowe� t�,y � v�li�i car�victior�. . . ` Tt�� :��ove �t�t�.�te w3s �7355E'd in '1�74. Ir� 1�79, the Mir�r�esot3 Suprem� Go��rt decide�� Peterson y,...,_M,p.ls..,,__.City_Council., 274 N.W. ....._......_.._.._.._..._. .._.._. 2�� 918, i�ol��ir,g th:3t arrest ° reports �rc� a�jmissit�le ir� ��imir�istrative procee�ir��s relatir�� to licer�ses. ' I�1_,. at 9w0. T�is is rar�sister�t with the pnlicy �averr�in� �i.ir�r�_..__St��t_.. 3G4 et ' se.4.-.. See �fir�r�_,._�t�t,... 3G4.03 Suk��. 1 . S�e 31sa �iir�r�. Stat. 13.�3:�' ..._.._.._..._.._....... .............._..._..........._.._... �ut��, �), ��istir��.risha.r�g t�etwe�r� arrest ar�� ir�v�sti��tive �at�, �r�� m•�kin� ir��ctive ir�vesti�ative ��.�t� ap�r� to the put�l.ir. Th� A�mir�istratiue L�w .7��e �1iv�s r�a weight wt��t5oever ta tt�e fact tt��t tt�ere m�y t�ave t�eer� cert�in �rrests ir� cor�r�ertior� witti the E�elmar�t I�.�r . Tt is th� f�cts ��r��er lyin� thase �rrests wt�ici� may be relev�r�t. Tt�� licer�see arg�.�es that tt�e palice report (City E::. �) , if a��missible, sho��ld t,e giver� 'little wei�ht t��c��ase it w:�� made fourteen d�ys �fter the f�ct, at tt�e requ�st of trie City Attorr�ey's affice. The Ar�mir�istr�tive Law ��r�J��+ cnr�clu��es tt��t tt�e ��el:�y ir� cre3tin� the police report �joesr�'t �a to its ��missit�i'lity, k��t to its wei�ht. Yermissit�le Witr�es�es Tt��e 1 icer�seP aF�serves tt��t ir� its �lotice, the City in��icate�i that it n�ay call pers�ns 'wt�a t�ave a sut�st�r�tial ii-�tere5t ir� tMe autcnme of th� proc��ir��; for e::�mp:le, the owr�ers ar accup.�r�ts of property located ir� close pra.:imity ta the licer�se�� premise� m�y have s�.�t�st�ntial ir�ter�st ir� tt�e outcame af ti�e prc�ceedir��s. ° Tt�e licer�see thar� .�rgues tMat tr�e Gity �lrea�iy tias set � star�dar�i to �3etermir,e wPi:�t is 3 'sut�stanti�l ir�tere�te .�r�d wi�at i� " in rlose pra>:imity' , ir� th3� Cv��e Sec. 911 .d4(t�) t'�) req�.�ires th�t cor�ser�t af GOY. of the occup•�r�ts ar�� awners �f property withir� two �r��r��red fpet af t�e :licer�se�:l premises m�.ast cor�sent t��fore th� City Co��r�cil wi11 cor�si��er iss��ir�� r� entert�ainment l.icer�se ir� premises sut,ject to ar� ar�-s.�le liq��ar licer�se. Tt�� A��mi.nistr�ti�e L�w J��e rejects the licer�sPe'� 3r�ument th:�t testimar�y m��st t�� limite�� ta thas� p�rsar�s w�ro owr� or �cc��py property withir� two t��ur�dre�i feet af the licer�se�� premisese Un1y twa r�ei��rt�orhoad re�i�er�ts testifie�; vr�e testified as ta his at�servatior�s nf the i�elmor�t �S�r p�rk.ir�� Iot ar�� pr�viror�s; the ott�er liv�s �crass tt�e stre�t from th� bar �r�� testified r��r��in9 hi� ot�serv3tior�s of tr�e same areas, There w�s r�a r.1�im of s��rprise with respect ta the cnr�tent of tt�is te�timor�y ar�d it roet the star��r�� o� relevance ar�d m�teri�lity wt�ict� �overr� ��missit�ility. AllP�atian qr�e Alle�3atior� Or�� ir•� the Natice of He�rir�� lle�es tt�e 'unl.�wful sale af �ru�s ir� tt�ie parkir�� lnt of tt�e licen�e�� premises t�y ar•� �mplc�yee af thp licer�see nr� vr �t�aut �lovemt�er lU, 1987. " Tt�e evi�ler�ce ref lects tt�at or�e of tt�e �ielmor�t T�ar employees� R3r��y P��e, passesse�� r��/ar so1��i m�ri j��r�� ir� the E�elmont �3r p:�rkir�� lot or� Navemh�er lq, 1�787, an� tt��t Rar��Jy P3pe was pre5er�t wt�er� :�r�other emplayee, I:ic�t�r� �o.:, po��e5�e�� m�ri ju�r�� ir� ti�e parN.ir�� lcat ir� Jar�uary r�r Fet�r�a�ry, 1�8�3 . k�r�dy P�pe w�� nff•-•r��rty wher� tt�� first ir�ci��r�t acc�.�rre� t��t r�ev�rtheless was sUSper�de� from em�loymer�t �� a res��lt af t�is ii-�volvement witt� ��ru�s� I�et�r� �ca>: sirni:larly was fir�e�� ar�� ' suspen��ed per Belmor�t palicy �s :� r�sult of t�er possessiar� af mari j��an�. k�r�dy Y�pe w.�s ��ismisse�� J�ae ta his preser�ce ��rir�� tt�e secand ��ru�-relate�� ir�ci�i�r�t witi� Det�r� Fox . Th� Admir�istr�tive Law J�..�d�e �:Jis:�grees with the City' s �r��ment tt�at the f.�cts 'show an attit�a��ie or outlook. on the part of employees which cnU1�� or�1y h�ve com� from m�n��ement. ' There h�s t�eer� r�o ct�ar�9e ir� t�ar policy with respect to en�ployees �r�r� �ru�s, ar�d the poliey pUr�ist�es tt�e ��se af ��r��s ir� a�i��itior� to wn�t�ver crimir�al s�nctions m•�y t�� impose� or� the user . One ir��ivz��a�l , kar��y Yape, seem5 ta h�ve be�r� :� c�t�lyst ir� the or�ly �irug-rel�ted ir�ridents cite�, �r�r� h� w:�s fired t�y tt�e Be:lmor�t» Tt�e C:ity f�.�rth�r �rgues th3t t�e 3k�nve ��cts st�ow th�t t�e licer�see ��i�� r�at m•�ir�t�ir� or��er ir� his pl�c� af ��sir,�ss. Co��e Sec. 409.08(5) . The licer�see �rgues tha� the ' pl�ce nf t�USir�ess " w:�s tt�� licer�se�� premises, w�il� th��--�activities occurred ir� the p�rl,ir�� lat. Ti�e Administr�tive L:�w Ju�j�e fir��s that °p1�ce of t,u�ir��ss' is t�roa��er tt�ar� " lacer�s��j pr�mises° , ar�d ir�cl��des the p�rk.ir�� lot. Wow�ver , the incid�nts were s��fficier�tly isc�l�te�� ar�� pur�iat�� so th�t it car�r�at t�� s�i�� th�t tt�ere w�s P�il�are to a�.�ir�t�ir� ord�r with re3�rd to ��r��-rel3te�� ctivities . The City �rg��es tt�i�t 5ec. 4q9. 14(a ) imp�ates action� of emplayees to tt�e licer�set�al��er . xhe licer�see poir�ts aut , however , th.at vicarious respor�sit�ility 3Qp1125 or�ly if the �ct� of t�is emplayees are 'witt�in th� fi�l�� of their employmer�t° , ' ir� f��rtherar�ce of t�is master 's t�usir�es�" �n�� °withir� the scope of his employmer�t° . St�te v. Sat�plm�r�, ::71 �l.W. 484, 48G (�fir�n. ..._.._.._.._..._..._..._..._.........._......_....... 1937) . Pape was off-�uty wher� i�e possesse�� dru�s in the Belmar�t Y•�rk.ir�� 1ot, The City �i�i r�ot estah�lz�h whether Iiet�r3 Fo.: w�s or�-d�aty wt��er� cau�i�t with mari juar�a. Ltet�ra �n.:, wnose bet�avior w.�s r�ot mer�tior�e�� ir•� the Natice of He�rir,�, w�s employe�� by I�3r�cir�� Ar��els rather tt�ar� t�FL, Ir�c. Respor�dent's E:,. A. In �r�,y event, P�pe' s :�r�� Fa:,' s acts m��st t,e cor�si��er�� ir� car�j��r�ctior� witt� ti�e pur�ist�mer�t adn�ir�i�tere�� t�y the �elmor�t m�na�ea�ent. Tt�e Arjmir�isi:r�tive L�w J�r��e ��oes r�nt t�elieve th�t the isol�te� inci�er�ts ii-�volvin� I'�pe �mour�t to � '��r��r ta the p��k�lic he�ltt�, sa�ety �r�� welf3re. " 5ec. 310.OGtt�) t7) . The City arg��s tt�3t tt�e ir�ci��er�t ir�volvps 3 viol.�tion af laws h�vzr�� a re�sor�at�le re1�•tior��hip ta the licer�se�� activity. Sec. 31Q.OG(t�) (G) There i� no evi��er�ce to ir��ic3te th.�t tt�e ��r�.�� l�ws are 'rel�te��' ta t�re licer��e�� tivity---r�n evi��er�ce th:at ��ru� �ctivi.ties :�re a particular prat�l�m 3t liq��or est�t�Iishmer�ts, fcrr e.:�mple. i�or ��oes Y�pE' � �ctivity rise to thp level af � r�uis�nce, Ir� 3r►y ever�t, there i� na vic�riaus liat�ility provisior� ir� St. P:��1 Leg. Cv��e SF�. 310. Alle�atiar� Two �lotice of Me�rir�g Alleg�tinr� Twc� �ller�e5 ' Ci]r�terferer�c� with police officers ir� the perfarmance af th�ir �ssi3r�ment kry 3r� employee of the licer�see or� ar �F�out :1�r�u�ry 14, 1988. ' (��ate amer�de�i by stipulatior�) . The evider�ce r�.�flects th�t a Belmont empin,yee, ��rry �feir�hafer , ��i�� ir� f�ct y�ll ir�:�pprnpriately �t � � �r� afficer wha w�� ic�ir�� t�is job ir�ve�ti��tin� passit�le prc�stitutior� o�.�tsi+�� -ttye Eselmor�t. However , m�n:��emer�t imme�:iiately a,po'lo�i;p� prvf��sely fcrr tt�� emplayPe' s cor��uct, �n�� tt�� emplaye� apolagize�� :3s well . Tt�is k.ir�d af ir�ci��er�t h�s not oecurre� �g�ir�. A��ir�, tt�e A��mir�istr�tive L:�w ,��d�e ��is��rees with the Gity' S �r�umer�t tt��t �ieir�hofer '� �ction shaws °ar� attitu��e r�x• outlook. or� t�e p�rt of emplayees which coul�� or�'ly h�ve come from m•3r��emer�t. " Th� isal�te�� inci��er�t dnes r�ot cor��tit��te .� vial�tiar� of Sec. 409.08t`;) , requirir�� licer�see to mair�t:�ir� or��er ir� t�is pl:�ce o£ k�u�ir��ss. While Meir�hofer ' s 3ct m3y t�e i mpute�� to trie 1 i cer�see ur��ler Sec. 409. 14(�) , i t must k�e cor�si��ere�� to3�tt�er with the 3()Q�O!j1E'S� �r�� tt�� tot�lity of the 3cts do r�ot reflect t��d moral ct��r�cter or� the p�rt of tt�e licer�see. Sir�ce tt�e Iicensee clearly ��id r�ot car��ar�e Meir�t�afer '� �cts, he c.anr�ot t,e pur�ished ��r��er chapter 314. Tr� f�ct, t�e evir�er�ce reflects a cor�sister�t Q�tterr� of caoper3tion witt� the police, ir�s�smuch �s the polace p�tral the I�elmnr�t regularly witt�io��t ir�terferer�ce, and the Belmor�t mar��emer�t is respor�sivE ta police req��ests . Alle��tior�s 1'i�ree 3r�� kc�ur Nc�tice nf He:�rir�g Alle�:�tior� Tt�re� indic�t�s th� "�rr�l:�wf��l employmer�t t�y the licensee of � mir�or far � sexu�l perfarmar�ce ir� vial3tior� of Mir�r��sat� 5t:3tutes, section G17.24G ar� or at�out Fek�ru�ry y, 19�3£3. " Alleg3tiar� F�ur ir�dic3tes tt��t ti�e li.cen�ee permit�te�� '� mir�or ta er�g�� ir� � �e:•:��1 perform�r�ce ir� viol�tir�r� af �iir�r�esot3 St�tUte�, �ectior� L�17.'�4G, or� or about Fe�ruary '.�� 1�J�3�3r or� or vi�it�l� ir� the licer��e�j premises . ' The evi�i�r�ce r�Plects th.�t T .D,�f. w.�s 13 ye�rs ol� wt�er� t�irer� by U�r�cir�� Ar��e1s. She fi11e�� a��t r�o employment applic.�tior�. 5�re lie�� at�o��t t�er a�e. St�e testified tt��t she w�s �sk.e� t�y N�ncy flsterm�r� whether s�r� t�•�� r i��entifi�:3tior� c�r�� :�r�� replied, '�lo. " Accar�ir�� tn T.T�.M. , N�r�cy pstermar� respor��e�� t�y s:�yir��, "hSak.e s�.�re yo�� k,rir�� it in k��caUS� you r�ee�� it witt� ya�� at �11 tin�es. ' Or� the ather n�r��, �tar�cy psterm3r� testiti�� that T.I�.M. h�� a bir•tt� certific�tior� wher� hire�� nr� �tov. 14, 1�788. �is. Osterman's testimor�y �.�3CN.5 cre��iF�ility ir� certair� partirul�rs . For e:•:ampl�, �is. qsterm�r� insists th�t T.U.�f. was r�at er�g��ir�g ir� ti�e �ctivities descrit�ed by tt�e palice or� the r�i*3Y�t of T.U.M. 's :�rrest. h!o Girth certifirate was recovered ar ir�tra��uced ir� evi��ence. i4evertheless, T.Lt.�i, w�s r�ot a very cre��it�le witn��s, eit�ier . �t is certair� that sh� lie�� tc� Ms. psterm�r� at�aut t�er age ir� vrder to �et � dancin� jo�,, �r�� that she lie�� tn the "Ur�b:�nk" tc� �et �r� I.T1. It �1so is ��r�cert�ir� i�ow seriously she too� tt�e ir�st3nt proceedir��s . �or e:•:ample, she ��ve � f�.rr�ny �rir� w�er► testifyir�� that the reasor� st�e w.as d�ncing ar��:i ��v� a false i��er�tification was k�ecause s�re ��i��r�` t w�r�t ta k�e � �lI'Q5�1'tU'��.'. Her ��emear�nr �u��este� tri.�t the testimnny w�s a lie. Th� Admir�istr�tive I..�w J�a��e re jects �fs. Ost�rmar�' � testimor�y �r�� ' • concl.ud�s th�t �is. pstern��r� �sk.e�� fc�r x�er,ti�ic�tior�, reqUe�te�� , ti�3t i�er�tific�tiar� t�� prad��ced in th� fut��re, t��t di��r�' t ir�sist upar� it �t tt�e time n� ��.��iitior�, r�lyin� ir�ste�� or� T.Ii.�f. ` � 1ie. The A��mir�istrative L�w Ju�g� ��oesr�'t accept b�rten��er Willi.�m Yapes ` testimar�y tt��t he checke�� T.Ti.Mf. 's ider�tific�tiar� every r�i9ht wi�en st�e wark.ed. He �iidn't k.r�aw wt��t form of i��er�tificatiar� st�e Used, �r�� ir�r�'t reco�r�i�e tt�e °Ur�bar�k. ' car��, statir�� th�t it w�� r�ot 3 very reliat�le 50�.1TCB of i��er�tific�tior�. �l�r�c,y (�sterm�r� testitie� that she thau�ht tt�i5 testimar�y w�s ir•�correct, �r�d tt��t th� policy of check.in� ��ar�cers' I.Ii, every time they �13r�ce�J w:�s ir�stit��te�� :�ft�r the T.Ii.�i. ir�cider�t. i�ir�r�. St�t. G1%.::4L•i S��k�d. 5 provides that it i� "��nl�wful far a ..._.........._.._..._.._..........__ persor� ta . . .employ . . .ar �erroit. . .:a mir�or to �n�3�e ir� . . .�ny se::��1 performar�c� if tt�e per�vr� kr�ows c�r has re:�scrr� to k.r►ow ti��t the cor��act ir�ter�d�� is .� s�:•:��:al performarace. ' T. Zi.i�. , � minor ,er��3e�� in � se:.u�1 perfarmar�ce or� �°et�. �, 1988. Tt�e licer�see �r�Ue� tt��t °the licer�see r�i�� r�ot �mploy CT.I�.i�. 7 ; Ii3r�cir�g AngEls, Ir�c. ° �ii+�. TYriS �r�umer�t appears ta t�� a tec�r�ic�lity, b��t carrert. MFL ar�� I�3r�cir�g r�r�g�l� ��ch 3ct tt�ro��gi� the s�me ��nt, U�vi�� Fan. Wher� T.I�,�i. w�s �ire��, L�:�vi�� E�r� w:�s :�ctir�� as �ger�t for Li3r�cir�g Ar�gels. Wt�er� T .Z�.hi. w•�s �jar�cir�g, t'IOWE'VE'I' y Davi� F:3r► was �ctir�g �s ager�t far tt�e Belmor�t, Assumir�g for the 5�ke of �r��amer�t tt��t thc� licer�s�e hire�� T.D,M. , the q��estior� t�ecomes wt�ett�er he ir�ter�d�� to t�ire 3 mir�or . The licer�s�e ar�ues th�t t�ie City h�s faile� ta a�rst�in its k��r��er� af provir�g tt�at the licer�see ir�t�n��ed to hire .a mir�ar . Mir�r�. St�t. G17.�4G S�a�,�i. 5 provi��es tnat a mist3ke as ..........._......._..........._....... to tt�e minnr 's ��e is nvt � �iefer�se. Ever� if the st�tute di� r�at impose '�t�sol��te l :i�t�ility' ir� re�33r�� to ��e, the (��mir�istr�tive L�w �udge a�rees witt� the City' s argUmer�t ti��t a re3sar�aGle persar� wo�a'l�� h3ve ir�quire�� f��rther ak�o�.�t x.Ii.�i. 's :�ge, ��espite �er m�t��re �ppear�nce. However , tt�e evidence does nat ��pport 3 cor�clusior� th3t Ii.3vi�� F�r� emplaye�� T.Ti.M. for tt�e purpose af er��:��ir�� ir� � sex��l perform�r�ce. He was preser�t �t her au�itior�; t,Ut the recor�� oes nat r�flect wh3t she w3s �sk.e�� to da there, or or� t�e "d�r�ce flaor . ° St�e ��i��r�'t canver�e with F�r� �t tne a�a��itior�. T.T�.M. t��tifie�� h:�t ::� " l��y shawe�� her wt�at to ��a ar�� CShe] di.�� it° �t tt�e auditior�, t��t she alsa t�stifie�� th3� they '�ji��r�' t tell Cher] t�aw tr� ��r�cE. ° Wh�t she �ct��11y ��i� ��urir�g tt�e ��ition is r�ot reflecte�� ir� tt�e recor��. Whett�er the licer�see �ermztte�� x.I�.hi. , :� minor , ta e��ge ir� a se;:u�7. perform�r�ce is a ��ifferer�t iss�a�. Tt�ere i� � prepor��erar�ce of evi��er�re reflectir�g tt�3t tt�e la.cer�see, thro��h it� 3�E�1"i"�5y �lid permit the mir�c�r ta �r�g:��e in � se>:u31 perfnrmar�ce. ].'i�e A��mir�istrative L3w :J��e car� ��raw ir�f�rer�ces from circ��mstanti3l evider�ce. The L�elmar�t was st�ffe�� cc�r�li.r�� to r�ee��, ar�d same employee m��st t�:�ve r�otice�j tn:�t T. U.i�. w.�s er��a�ir�� ir� � sexual perform�r�ce or� tt�e ni�ht ir� questior�. Or�e emp:loyee SUP�)05C��ly w�s checkir�g ��:�r�cers' I.U. ' s. T. L�.�f. er��ed ir� three separate se::ual performar�ces or� th�at r�i�ht. �t�e l icer�see cor�seq�aently vial3te�� ai:atut� re.3sor��bly r�+l�te�� tc� tne licer�s�� ctivity. ` �° '/ �� , It st�aul�� k�e r�ote�� tt�»t tt�ere �re ��eficier�cies in the , evi��er�ce. T�erP ia r�n �vi��r�ce tt��t T.Ii.�i. er�g�ge�� ir� � tie:;u�l perform�nce crtt�er th�r� or, Iet�. �', 1988. I�r�� er�Porcenier�t ��er�ts typic.�lly m.�k.p twc� nr tt�r�e t�uys ta �et t�y the Pr�tra�ment �ie�er�se �r�d m�k.� tt�eir c�se with s��fficier�t cert�ir�ty to warr:�r�t �ctir�� ir� � ��r�itive f�st�ior�; b��t the st�n��ar�� rnp�titiwe ot�serv3tivr�s w�re r�at ma��e h�re. Tt�is is r�at .� sit��3tior� wt�ere st�e was ot�aerve�� r��9ir�� in a se:•:�a�1 perfarrn:�r�ce, m�r��emer�t was �iver� r�otice, ar�� he was at�serve�i enga�ir�� ir� tt�e s�m�.� 3C't1Vlt!@5 a��ir�. It WqUl�� t�ave t�eer� e.�sy for :ar� �tficer to go �� ta a t�3rter�+��r t�etweer� d�nce p�r�ormances �n� �sw, °T1id )JAU see th�t?° ar vtherwise estat�"list� kr�awle��e to :� certair�ty. It i� r►at a sit��tior� wi�ere st�e testifie�� t�at she w�� tol� tra d•�r�ce ir� a prahit�ited way, ar ever� that mar��ement w�tc�e�i �er ��3r�ce ir� a prot�iGite� way. Wher� aske�� if I1�vi� �ar� saw t�er "��r�ca.r��' (which m:ay or m�y r�at h�ve mea��t car��ct prnhih�i•te�� t�y statute ) , T.U.Nf. respor��ie�i tt�at �fr . F�n sits in trfe har , t�ut si�e ��a��r�`t kr�ow if h� w�tct�e� t�er . She further testifi�� t��t Li�vid Fan never t�lked to t�er �k�out dar�cing, just tol�i her to �et out of the t�ar wtier•� siie �r�tere�� fnr pop ar�� ri�:�rettes. The A�reement witt� D�r�cir�� Ar��els does r�at cor��or�e :�ctivities prohit�it�� t�y 13w. 8ec. 31Q. U(�(9) provi�les tt��t adverse actior� m�y t�e tak.er� ��air�st a licer�se if th� ' . . . licer�see. . .t��s st7owr� t�y past miscor��uct. . .that suct� licensee. . . is not � person of the �oo�� mar:�l ch�r:�cter or :fitr�es� req�.�ir�� to er��a�� in � licer�se�� 3ctivity, t�USir�ess or professiar�. ' Tt�e evi��r�ce with respect tt� T .Ii.�f. m:�y reflect �r� Ti:�vi�� n' s mor�l ch�r�cter--or it may reflect his poor �t�ility to m•�r��e � t�usir�� . Tr�e L'ity r�otes that ther� is ar� ir�ci��er�t reg3r��ir�g �r�ott�er ��r�der�ge empinyee wt�ich w3s r�at z•�ised ir� tt�e �latice nf Hearir��. �his ir�ci��er�t ir�volve�� 3 si:,teen-y��r-nl�� whc� preser�ted twa I.11. ' s tt�3t m�tci�e� �.ap. Or�e w:�� state I.T�. , 3r��1 or�e wa5 � cc�py nf a �irth certific:�tp. Wher� th� �itu�tion w�s ��iscovere��, r�o charges were t�raught a�3ir�st tt�e Clut�. The evi�ier�ce as ir�suf�'icier�t to concl�.ir.i� th:�t th� Cl��t� was c��lp3t�le ir� this ir�ri��er�t . T�e City �Jaes r,at serio��ly argue ti��t th� activitaes de�crit�e�� ir� Alle�:�tinr�s Thr�e or Fnur 't�:�ve cre�te�J � �prio��s ��3r��er to tt�e puk�lic healtt�, safety or welfar�. . . ' Sec. 31U.OG(k�) (7) . The T. D.i�. ir�ci��er�t ��nes r�ot rise to that level . Alle�atior, Five Alle��tior� �ive ir� the Notice of Hearir�� 11e�es� 'The occurrer�ce of �cts aP solicit�tior� for prostit�.�tiar� ar�r� pr�stit��tior�-relatP�i 3ctivitie� ir� the licer�sed premises, or� ti�e p�rkir�� lot t�et�ir�� tt�e 'licer�s�� premises, ar�� ir� the immedi•3tely ad j�cer�t area, .�11 oP wt�ict� car�stit�.�te ( 1 ) .� r��is3r�ce , .�r�� t2l create c�r h:�ve cre�te�� serio��s ��r��er to tt�e p��t�lir he�lth, safety �r��:i welf�re. 5uct�i �ctior�s ' h.�v� occ�.�rrer� nr� mar�y or.c�siar�s thrau�t�a��t 1hf37 ar�d , early 1�J88. ' The eviJence reflects that tt�ere are r��merous prostitutec: ir� the t�i�h-crime �rea of Sher�,��rr•�� r�� Ur�iver�ity ; tt��t most of the prostit��tes rem3ir� or� tt�e si+�ew�lk. or at the er�trar�ce to the I�elmor�t parkir�� .ot. Citi�er�s have k,eer� ��isturt�e� by 3C'�1V1'tlGira of prostit��tes ir� ti-ie p�ri.ir�3 lat, hawever . ProstitUtes ar�� pimps �JS� tt�e G�r t��t their 11�.1C1't �3C't].V1't125 3re r�at overt. Ir� Off icer Lutsct�er�'s opinior�, n�ar�a�emer�t is not intereste� ir•� solvir�� these pra�,lems ir� an�� 3t�o��t the t��r . Th� A�ministr�tive Law Ju�i�e char�cteri�es tt�e situ�tion �s or�e ir� wt�ich t��r mar�.�gemer�t t��s r�nt impe�ie�� the �nlice ir� their cor�trol �r�� arrest functians, t�ut h�s beer� pa�sive in its own �ctiviti�s tc� ��iscaura��e prostitutior� (e::ceptir�� the l�st s�veral mnr�tt�s) . St. T':aul Le�is. Ca�ie 408,08(G) provides th3t r�o ° licen�e� st�ra'1'1 . . . permit tt�e lir�r�se�� premises or �r�y rovm ir� tt�e same or ar�y ��jnir�ir�� t��ildir�� or �r�y adjoir�ir�� t�uil��ir�� directly ��r��er his car�trol ta t�e ��se�� s � r�sort for prostitutes . . . ' Tt�e Belmor�t C:I.uk� has k��en used �a � resort for prastit��tes. T�e que�tior� tt�er� bpcnmes wh��t��r tha 'licensee ` permitte��' ttiis to t�apper�. In S�t�es v.... M.P.ls.r,,, supr�., afficers w�re pr�pasitior�erJ ir� tt�re t��r or•� ei3��t�ncc�siar�s �aver � h�lf y�:�r p�riod, res�a7tir�� ir� cor�victions, �r�ri ar�e three occ�sior•�s, police witn�sse�� le�vin� th� k��r ca�aples who�� sut��equer,t �rrests res�.il.te� ir� canvictior�s for prastitUtiGn. The t��r r�preser�t�tive t�stifie�� th�t t�e k.r�ew j)I`05'tl'�U'tE'5 freq�aer�te�� his est�t�lishnier�t :�r�� knew their ider�txty, t�ut cl.�imed t�at Me t7��1 n� k.r�nwledge af their t�avir�� soli�ite��. Tt�e L'ourt he1�3: Tt�e mere preser�ce of persor�s a� immoral ch3racter �r�� t,�+er� hel�� r�o�t ta vialate 3 st�t�ate pro- t�it�itir�� the ��se of � k��r �s � pl.�ce to wriich penple resart for purp��s which :�re ir�jurin��s ta the put�lic mor�ls, triere t�eir�� r�ott�ir�� unl�wf�.�l �bout �ermittir+g SUC�'1 per�or�s ta patrar�i�e t��rs �n� rest��rar�ts in tt�e at�ser�ce o.f proof t��t tt�ey committe� viol:�tior�s or� tt�e premises. t�or is a sin�le act of solicit�tior� er�o�.��t� to justify .� licer�se revac�tiar� �rnder a st�tute which prat�it�its tt�e lic�r�see from permittir�� tt�e premises ta t�ecc�n�e ��lisor��erly. ° ,I��_.. �t 878. The CoUrt cite�� witt�� ppraval c:�ses st�tir�� :t�iat °ther� w:3s no saf`�ty ir•� igr�or:�r�ce ' it proper ir�q�.�iry wn��l�� vai1 , ` " •ttie word ` �rermit ' im�li��i r�a �ffirm�tiv� :�ct �r�� nra ir�ter�t, k��t m�re p�ssivity, ar �n �Gst�ir�ir�� fram prever�tiva actinr�, ' �n�J cor�cl��+�� 'tt��t wt�ere , �s t�ere, tt�� evi�er�c� ��iscloses tM3t tt�e licer�see k.r��w pro�titutes wer� frequer�tin� his est:�t�list�mer�t, �r�� r��m�ro�.a� cnr�victior�s res��'lte�� from �cts af prastitutian solicite�� ar� t�is premises, t�e is ct�arr-�� with k.nowle�ge or SUC�'1 �' • 3ct:iviti�s ar�� furtt�er �raa:f is r�ot r�q��ire� ta sustair•� , tne revacatiar�. " T��_.., at £i79 . Tr� t�is c�s�, Uffic�r i�eyer obs�rve�� r�ly ar�e prastitute ir� tt�e k�3ry �pp.�z`er'itly �cair�� r�oti�ir�� ille��l . Officer Lutscher� was the ar�l.y witr�ess wt�a te�tifie�� tt�:�t tt�e t�ar preinises 3re �.ase�� t�,y prastit��tes for pick.ir�� up c�.a5tomers, t��.�t h� �ir� r�ot m�k.e �ny arrest� ir� tn� t��r , pres�amat�ly t�eca��se r�o activa.ty w�s ot�serve�� ir�sid� whict� wa�.ald provi��e prat��t�le C3U5C-' far �r� arrest. Tf i.he �ctivities of the prostit��tes ��id r�ot provi.��e prat�:able c�u�e far an arrest :�r�� wer� ir�active ir�si��e the k��r , it woul�� t�e in:��propri3t� ta per��li.^e the t�ar m�r�a�em�r�t far ir,ar.ti�r�. Cf... S a t�e s._.v_. C.i t_Y._p�._�P..a 5_�..� s!:!.�r:�. 3 t �3 7 8: ' C T�r� t t�e �k�s e r�c e o f ��ir�ect evi��er�ce th�t �efer��r�t h:�� k.r�owle��e af immor�l practices or� his p�Cemise5y tt�e illicit commerce was ir��iul�e� ir� 5v aP..�.r�.1.Y.. �3r�� fvr such � ler�gtt� of tim� th�t ��ef�r��r�t m�a�t have k�r�owr� t�is hotel w�s k�eir�� use�� s a t�a��se af i11 f�me. ° t emph�sis ��de��) . !t i5 r�at �s if prostit��tes stia�.at their ir�vit�tiar�s ta customers. Sec. 310.OG(7) oP tt�e Code pravi�ies far a��verse actiar� ��ir�st a licer�see if the "activities af th� licensee in the licer�se�� activity create or r��ve cre.�ted 3 serinus ��n�er to t�re p��t�lic he�lth, s�fety or we'lfare. . . ' Whi].e the prostit��tior� activities described are oGno.:ious, they �o r�at rise to the 1�ve1 af °ser i c��a� ��3n�er . ° �iir�r�. Stat. G09.74 �efir�es th�t a p�.�t�lic r�ui��nce acc��rs ............._..._......._........... whei-� ' . . .t�y �n act ar ��il�are to p�rfrarm � le��l �uty C.� persor�7 ir�t�r�tiar,�l ly . . . ( 1 ) . . , permzts a con- �iitiar� w�ict� ur�reasar��t�ly. . .er�d�r��ers the safety, hea'lth, mnr�ls, comfort, ar repas�, ot �ny cor�si��er�t�le n�amk�er of m�mt�ers of tfi�e p��t�lic. , . ' Thp pro�tit��tiar� ac:•tivities ��escrit�e�� in tt�is c:3�e er��an�ere�� citit.er�s" camtart or repose. �fir�r�_..._5t�t_,.. G09.74 is r�asor�aF�l,y relate�j to t�� licer�s�� ctivity, St. F��al LegiS. Co��e 310.UG(k�) (G� . So is �4,ir�r�..�St:�t,... 5G1 .41 , wi�ict� ��fir�es � nuisar�ce 35 ' C�nytt�ir��7 wt�ict� is . . . ir��ecer�t vr offc�r�sive ta t�re ser�ses, or �r� ot�str�actiar� tG ti�e fz•�� u�e af psopPrty, ao �s to interfere with the can�f�rt:3t�le �r�joymer�t of life ar property. . . " T�e C:ity h�s r�vt prove�J th�t tt�e I�elmont is tt�ie so��rce of pra�titutivr� ir� the •�rea, r�ar ��oes it h�ve tc�. Tt�e situ3tior� 3t tt�e Clut� cor�stitutes a nei�ht�nrt�nn�� r�uis�r�ce. Tt�ere i��ve t�eer� r�cer�t efforts tn correct the prot�l�m t�y tne Belmor�t m3r��3empr�t. So lar�q �s tt�e c��rr�nt level of ��ili�er�ce is m�ir��t�ir�e�l, r�o pur�itive actiar� in the form of revocatior� or s��sper�sion af the E�elmont licenses r�ee� he taken. However , carrectiv� effart5 t�y th� R�1mor�t m�r�3�emer�t m�y k�e nr�rely a re�por�se t�a tt�is c�r�tested c��e procee��ir��. A��itionally, the f.�ct th�t the Eselrnor�t has t:�k.er� steps recer�tly to ror�trol the r�uis�nce doesr�'t erase the f�ct tt�3t � nuisance has occ�arre�. A recnmmer��i�tior� for �ction is ma��e ta sustair� tt�e�e corrective ' � �ctiviti�s wi�ict� seeni to b� e�'f�ctiv� ir� re�ucir�� . prnstit��tior�•-•r�l:�t��:i �ctivities ir� the Belmar�t Cl�.�t� �r�� its park.in� lat. C��rrer�t C'��QT'f.5 to ti.�t�ter� u�� the lir�r�sir�� ar�ir�ar�ce� �1so ::are l�u�at�le. 8�am� questic�r•�� •tt�:�t might Ge a��resser� ir�cl��e ttie followin�: Wi�at law5 �xe "reason�bly r�l�te��" to tt�e licen�e�� ctivity" Will the vic�'l:�tinn crf �r�,y crimir�al l�w imp:�ct or� � violator 's licer�se? Are or�ly liquor l�w violatiar�s 'reason�k�ly r�1�te�J' to the licer�sed :�ctivity? If tt�ase �ir�ftin� tt�e or��ir�ar�ces h�ve some specific laws ir� mir��, wt��y not list the e;:3mples? W�r�t cnr�stitutes :� "�erio��s ° ��ar��er to tne p��t�l ic t�e�ltt�, s.�fety, ar welf:�re? Wt�3t t�ei��virars evi��ence a l�ck. of ' �aor� mor.�l ch�racter '? 'ri�titer ardir�ar�ces wi11 provi�e . mor� �ui��ar�ce to t��r awners. cg . , �� ,��`�� o � ��:,��I�� :.``\LLDUryO• '.� s - - J U L 8 1988 ��j868i• .,- � �.�=,��'g' ,� ? ��X�'�� ;�� STAT E O F M I N N ESOTA OFFICE OF ADMINISTRATIVE HEARINGS FIFTH FLOOR,FLOUR EXCHANGE BUILDING 310 FOURTH AVENUE SOUTH MINNEAPOLIS,MINNESOTA 55415 (612)341-7600 July 7, 1988 Philip Byrne Assistant City Attorney City of Saint Paul 647 City Hall St. Paul, Minnesota 55102 Re: In the Matter of the On-Sale Liquor License for the Belmont Club; OAH Docket Nos. CITY-88-021-CG and 53-2101-2427-6. Dear Mr. Byrne: Enclosed is the record in the above-referenced matter. The Administrative Law Judge's Report will be mailed under separate cover. Sincerely, �� . �-� GEORGE A. BECK �V� Administrative Law Judge Telephone: 612/341-7601 GAB:vh Enclosures AN EGIUAL OPPORTUNITY EMPLOYER . , _ • .� ��'�. -,. ' . CITY OF SAINT PAUL �•�� '��:� OFFICE OF THE CITY ATTOBNEY c` _="�"'�" '"` EDWARD P. STARR, CiTY ATTORNEY '• ` 1-1_ w ,. . .`'��o;�•�:c 647 City Hall,Saint Paul,Minnesota 55102 GEORGE LATIMER 612-298-5121 MAYOR May 3, 1988 Mr . Dav id S. F. Fan The Belmont Club 615 University Avenue Saint Paul , MN. 55103 NOTICE OF HEARING RE: The Belmont Club Dear Mr . Fan : This is to notify you that a hearing will be held concerning the licensed premises stated above at the .following time , date and pl ac e: Date : May 24-25, 1988 Time: 9: 3� A.M. Place: 4th floor Auditorium, St . Faul Public Library 10 West Fourth Street, St. Paul , Mn. 55102 The judge will be an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings : Name: Ms . Carol Grant Address: 2404 Stevens Avenue Sout:h Minneapolis, Mn . 55404 � � Telephone: 871-9�04 ' The Council of the City of Saint Paul has the authority to � provide for hearings concerning licensed premzses, and for action against such licenses , under Chapter •310, including sections • 310.05 and� 310.4l6�,� of the Saint Paul Legislative Code. In the case oi licenses for intoxi�:ating and non- i^�toxicatir.g liquor , authority is also conveyed by section 340A.415 of ttie Minnesota Sta tute s. Evidence will be presented to the judge which may lead t� adverse action against the license or licenseholder as follows : . 1 . The unlawful sale of drugs in the parking lot of the � licensed premises by an employee of the Zicensee on or about November 16, 1987 . 1. interference with police officers in the performance of their assignment by an employee of the licensee on or about January 23, 1988. 4 • � � 3. The unlawful employment by the licensee of a minor for sexual performances in violation of Minnesota Statutes , section 617 . 246 on or about February 2, 1988. 4. Permitting a minor to engage in a sexual performance in violation of Minnesota Statutes, section 617. 246, on or about February 2, 1988, on or visible in the licensed premises. 5. The occurrence of acts of sol icitation for prostitution, prostitution and prostitution=related activities in the 1 icensed prem ises , on the parking lot behind the 1 icensed premises, and in the immediateZy adjacent area, all of which constitute ( 1) a nuisance, and (2 ) create or have created a ' ' ser ious danger to the publ ic health , safety and welfare. Such actions have occurred on many occasions throughout 1987 and early 1988. You have the right to be represented by an attorney before and during the hearing if you so choose , or you can represent � yourself. You may also have a person of your choice represent you , to t:he extent- not prohibited as unauthorized practice of law. The hear ing will be conducted in accordance wi.th the requirements of sectians 14.57 to 14. 62 of the Minnesota Statutes , and such parts of the procedures under section 310. 05 of the Saint Paul Legislative Code as may be applicable. At hearing , the Administrative Law Judge will have all parties ' � identify themselves for the record. Then the City will present i ts wi tne�sses and ev idence, each of whom the 1 icensee or attorney ' �may cros:�-exam ine. The 1 icensee may then of fer in rebuttal any witnesses or evidence it may wish to present ,' each of whom the '' City attc>rney may cross=examine. The Admit�istrative Law Judge may in additio^ hear relevant and material testifiony from persons not pr.e'sented as •witnesses who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants of property located in close proximity to the licensed premises may ha�ve substanti3l interest in the outcome of the proceeding. , • Concludir.g arguments may be made by the parties. Following the hearing , the Judge will prepare Findings of Fact, Conclusions of Law, and a specific recommendation for action to be taken. You should bring to the hearing all documents , records and witnesses you will or may need to support your position . � Subpoenas may be available to compel the attendance of witnesses or the production of documents in conformity with Minnesata Rules, part 14418.700Pl. :,�' � . � = ��- �� If you think that this matter can be resolved or settled without a formal hearing , please contact or have your attorney contact the unclersigned. If a stipulation or agreement can be reached as to the facts , that stipulation will be pre5ented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. If you fail to appear at the hearing , the allegations against you which have been stated earlier in this notice may be taken as true and your ability to challenge them forfeited. If non-public data is received into evidence at the hearing , it may become publ ic unless objection is made and rel ief requested under Minnesota Statutes , section 14. 60, subdivision 2. Very truly yours, , . �• . PHILIP . BYRNE Assistant City Attorney (612 ) 298=5121 Attny. Reg . No . 13961 cc: James R. Bresnahan, Esq. Joseph F. Carchedi License Inspector Lt . Donald Winger Vice Uni t ' � Albert B. Olson � City Clerk ' . M��: Ca��i��. ` G�ar�t . • � Administrative Law Judge ��. :<<��'T' °;;> � - CITY OF SAINT PAUL � '• '"" �_ • OFFICE OF THE CITY ATTORNEY • � iiiili n�ii ' ?' • EDWARD P. STARR. CITY ATTORNEY '.'°;. 647 City Nall. Saint Paul, Minnesota SS102 GEORGE t AT1��1ER 612-?98-5121 �14YOR May 4, 1988 Mr. James R. Bresnahan Cochrane & Bresnahan . 24 East 4th Street Saint Paul , MN. 55101-1099 RE: Belmont Club License Dear Mr. Br.esnahan: This is to inform you that the date. indicated in paragraphs 3 and 4 of the NOTICE OF HEARING sent to yaur client , Mr . Fatit, and copied - to you, is erroneous . It should not be February 2 , 1988 ; but rather February 8 , 1988 . Very truly yours , � PHILIP B . BYRNE Assistant City Attorney cc : Ms . Carol Grant ' . Administrative Law Judge . ,.. : _ , . --_ ..__.._�_..�.. a.- � � .%: � . , ___ ____,_ .----._.__--. • �, ( CUSTOMER IDENTIFICATION # . . , . , _ " --;,; -� ; � � . . i -a+'� T// �\ . ' • G-=__� � I I�� • A C O M P A N V i f 1098 University Ave. St. Paul,My 55104 �o-` . 4 �° �612)64'-1038 � - ��5z734� ' I.O.NO. ; iTPra Monn � � NAME �' 1/17/68 '' SOC.SEC.NO. �B i i , i ,� �_1 �. SIGNATURE . . . 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DBA THE 6Ei.MONT C�.UB AND TNE FA1NF3�W-7 INC., OBA � ��MS�gE S g TNEIR HEIRS.ALL THE COR POR �{dATURE(S) � i . ii ' 'i I I� Ii, I, � � I � �� i, �; �� ; `�i� � � � � , ; , � � ' i � � i � , I <, .. � � � ,� � l - � � �! . � ;i ��i� i i� �� li �� ,; „ , ,, f�� t: � I � � �� I��h �'S ��,b � � �, _ . E �-� �� - � - . '" , Room 203, City Hall � Saint Paul, Minnesota 55102 ' APPLICATION FOR RENEWAL OF ON SALE INTOXICATING LIQUOR LICEhSE � . PLEASE COMPLETE ALL ITEMS LISTED BELOW - 1. Appl icant/Company Name ' / �L �/�� Y��n' �'L v'G � �- � ?� �` -�j�-7� 2. Business Name �l'�� L�O�% 7 C�-U,� Te lephone No. :3. Business Address STREET: �� i/�/��'�,S17�' �2: N/ � C�`d�iLf�s1'°�//� Number Name Dir ction Type 4. Mail to Address STREET: (;/)� GN/�'�'S(�y /�}'(r� ��"' CG�/'�jy��C'C/� Number Name Direction Type � S7 P/�L lVl� .�.�/��' City State Zip Code 5. Name of Applicant �� S�� T- � Telephone ��2 - 'Z2�- �'7� Individua�/Partner/Officer Area Code/Number 6. Applicant Address STREET: � 7�� I' ,�{��LZ�' ��'Z �� Z'1/p"�tl7J/Jf � Number Name Direction Type /�I�t�iti�� l�'1iv' S�/o� . City State Zip CodF 7. Type of Business: Restaurant Club � Hotel/Motel `� 8. Manager in Cliarge �1a V�� J ` �- �J,-}�/�✓� ��/ d� .�� First Name Middle Last 'Da e of Biz•th f 9. Manager Home Address STREET: � /0 1` (��'��"� r(.,�',�7 �/Zti� f�/L�G'�L7��'�- Number Name Direction Type _ . � i�I�'�� M�v • ,S��' � - �. ity , State Zip C de -- - . _-" Telephone 6� 2-- - 77�- U�� ; f��{� . � �._ Area Code Number Orig. Date of Employ�ent �� . � . 10. ' Are any.;of�he� following taxes or charges for the licensed premises unpaid or delinquent? - -� Real Estat�;Taxes Yes No � Personal Property Taxes Yes No �'� Special Assessments Yes No �/ City Utility Bills Yes No �,/ �11. If there have been any changes in interests in premises or finances, or contracts between - � applicant and any persons, corporation, partnerships, or any new loans since license aas„ � . last issued, explain in detail: - N� C1-/�C�� -- � 12. Liquor is served in the following areas (rooms) �/�'(/1/ .u/� ��:��G�}' ' �L�1�1'f1,�I _) �tUrl'"' �-a�-g � � 13. Seating Capacity: 100 seats or less ��ver 100 seats over 2Q0 seats t�'hite copy - return to License & Permit Division ,�r�_,�i�� Pink copy - retain for your records ' �Tr-,�� -� Signature of Applicant , ,��(� � . � . � NOTICE . , �_ �y � �=�=�f' ✓ � ��7�0<�j Pursuant to the Minnesota State Legisla.ture by Chapter 332, Section 47, Laws of 1987, every state and local licensing agencq is required to withhold the issuance or re- newal of a license or permit to operate a business in Minnesota unt�l the applicant presents acceptable evidence of compliance with the workers' compensation insurance coverage requirements of Section 176. 181, Subdivision 2. This information is required by law, and licenses and permits to operate a business may not be issued or renewed if it is not provided and/or is falsely reported. Furthermore, if the information is not provided and/or is� falsely reported, it may result in a $1,000.00 penalty assessed against the applicant by the Commissioner of the Department of Labor and Industry payable to the Special Compensation Fund. Upon request, licensing authorities are required to furnish workers' compensation insurance coverage information to the Department of Labor and Industry to check for compliance with Minnesota Statute Section 176.181, Subdivision Z. Any questions regarding worke:s' compensation should be directed to the Minnesota Department of Labor and Industry - Special Fund Section - 29i-4777. FAILURE TO SUPPLY REQUESTED INFORMATION WILL DELAY THE PROCESSING OF YOURmIC�SE OR PERMZT ISSUANCE OR RENEWAL APPLICATION. � :` :. � � Please supplv the following information and return this form with other p:�ers 'i� applicable, and your appropriate fee to: Cit of Saint Paul License and Permi:t:= Division, Room 203 Citv Hall, Saint Paul, N�1 55102. '� . .-. � .. , Insurance Conpany Name /,, / _ � (�OT the insurance agent) l�'v �Us/�(� 21V„�. � . Policy Number or Self-Insurance Permit Number � � 3 /r�o O o� /rz�U . Dates ot Coverage —o, ��' 0 —' � — �� d effective expiration . . OR , . . I am not required to have workers` compensation liabilit5= coverage because: ( � ) I have no employees covered by the law. , ( �) Other (Specify) I HAVE READ AND U1dDERSTAND MY RIGHTS AND OBLIGATIONS WITH REGARD TO BUSINESS LICENSES, PERMITS, AND WORKERS' COMPENSATION COVERAGE, AND I CERTIFY THAT THE INFORMATION PROVIDED IS TRUE A1�'D CORRECT. Business Name M �Z �' � � 8/ 7/�� j� C/V �L(/ ad d r e s s _ G �S �N/l�SJ7��7/�- S'f'• ��'�/C- /"//t/ ��j`S1/U, 3 street . city state zip code � ; _ ,�. �"5�--��—., � u/c�:� signature�� date f �. _ �J� � ``� � \ � _ C I T Y 0 F S A I N T P A U L LIC-ID: 16163-2 + L I C E N S E R E N E W A L N O T I C E INV-DT: 12/07/87 *** SUBMIT THE FEES FOR THE FOLLOWING LICENSES BEFORE THE PAYMENT DUE DATE. *** *** YOU MAY BE PENALIZED UP TO 50 $ OF YOUR LICENSE FEE FOR LATE PAYMENT. *** *** PAY TOTAL AMOUNT SHOWN WITH CHECK MADE PAYABLE TO CITY OF SAINT PAUL. *** ( BOND AND/OR INSURANCE 'ORMATION ATTACHED ) \ ��' ' PAYMENT DUE DATE : Ol/31/88 \ � M F L INC & CLAYTON CLUB INC� p MINNESOTA TAX ID # : 498384� �� BELMONT CLUB ��$ LICENSE EXP. DATE : Ol/31/ 8v 615 UNIVERSITY AV � ,�/ ��6 BOND EXP. DATE : CONT � ST PAUL, MN 55103 � �? �,� INSURANCE EXP. DATE : O1/31/88 � �� i� UNI'I'-COST #UNITS AMOUNT -------- � � ----- --------- -2573 RESTAURANT 14HRS 100S OR MORE-D 441. 50 `" , Ol 441.•50 2579 �21TERTAINMEh'T-D 1130. GO 'j U1 1130. GO 2168 5UNDAY ON SALE LIQUOR � 200. 00✓ O1 200. 00 �2081 LIQ-ON SALE-OVER 100 SEATS-B ��/ � 3786.75 ��z, O1 3786. 75 /��3�3 :� , �'j��.�j APPLICATION FEE : 2 .� �:�� . . . . ,� �� _ -- . TOTAL __ _.: � . . - � : . � � �� ' �_� �� c��3��, =:� ` , ��- �, � �:;-; LIC-ID: 16163-2 ` L =.. �~ ($15. 00 CHARGE FOR RETtTRNED CHECKS) (IF OUT OF BUSINESS, PLEASE INFOI�I US. ) := --------------------------.��'t-�_°�_�3--�5-�-�-�"-"-----------------�--------- . . .. . .... _..- _..,.-.-....r��.�..��.r.... ..-�:�-� ..�..n...T��wl..f� _.,........�. �`.._ , . . " .. .. .._..__ . ..... _ . ..._... ._.. .. .....� _...... . "'."' . ,......r-' L�c�;.sE ro. • CITY OF SAIR'T PAUL FEE $3786. 75 1G163 ' LICENSE d PERA7IT D11%ISIO�'�' _ � �. LICENSE INTOXICATING LIQUORS "ON SALE" 1ST HALF: $1893 . 37 2ND HALF: $ THIS CERTIFtES THAT M F L INC & CLAYTON CLUB INC HAVING PAtD THE ABOVE FEE AND HAVING COMPLIED WITH OTHER ORDINANCE REQUIREMENTS IS �iEREBY AUTHORIZED TO SELL INTOJ�ICATING LIQUORS "ON SALE" IN ACCORDANCE WITH THE PROVISIONS OF ORDINANCE NO. 7537,APPROVED JANUARY 18, 1934,BUT SUBJECT TO ANY A2�4E\DhiENT OR AMENDMENTS OF SAID ORDINANCE NO. 7537,IN THE FOLLOWING DESCRIBED PORTIONS ONLY OF THE BUILDING STRUCTURE KNOWN AS BELMONT CLUB LOCATED AT 615 UNIVERSITY AV ST PAUL MN 55103 'THIS LICENSE MUST' BE KEPT POSTED IN A CONSPICUOUS PART OF THE ABOVE PLACE OF BUSINESS NOT TRANSFERABLE FROM PERSON TD PERSON OR PLACE TO PLACE THIS LICENSE IS ISSUED SUBJECT TO THE PROVISIONS OF ALL ORDINANCES OF THE CITY . OF ST. PAUL,MINNESOTA,AND MAY BE REVOKED AT A�fyTIA4E IF SAID OVISIONS ARE VIOLATED. � � , �,`�� TH1S LICENSE EXPIRES O l�3 1 j 8 9 ' � , � � ��. DATE OF ISSUAICE 02�23�88 LICENSE INSPECTdR ' LIQUOR SERVICE AREA: BAR AREA r.tcEhsE rro. CITY OF SAINT PAUL FEE $3786. 75 16.1G3 LICENSE � PERMIT DI[�ISION � LICENSE � I�ITOXICATING LIQUORS."ON SALE" ' 1ST HALF: $1893 . 37 � � 2ND HALF: $ � THIS CE'RTIFIES THAT M F L INC & CLAYTON CLUB INC ' �HAVING PAID THE ABOVE FEE AND HAVING COMPLIED WITH OTHER ORDINANCE REQUIREMENTS IS HEREBY � nvTxoRlzED To sELL . INT03�ICATING LIQUORS "ON SALE" , IN ACCORDANCE WITH THE PROVISIONS OF ORDINANCE NO. 7537,APPROVED JANUARY 18, 1934,BUT SUBJECT TO ANY AMENDMENT OR AMENDMENTS OF SAID ORDINANCE NO. 753�,IN THE FOLLOWING DESCRIBED PORTIONS ONLY OF THE BUILDING STRUCTURE KNOWN AS BELMONT CLUB - � LOCATED AT 615 UNIVERSITY AV � ' �, , � . ST PAUL MN 55103 � THIS LICENSF.. MUST BE KEPT POSTED IN A CONSPICL'OUS PART OF THE ABOVE PLACE OF BUSINESS NOT TRANSFERABLE FRO�11 PERSON TO PERSON OR PLACE TO PLACE THIS LICENSE IS ISSUED SUBJECT TO THE PROVISIONS OF ALL ORDINANCES OF THE CITY OF ST. PAUL,MINNESOTA,AND MAY BE REVOKED AT ANY TI2.1E IF SAID PROVISIONS ARE VIOLATED. TH(S LICE\SE EXPIRES Ol/31/89 DATE OF ISSUA�CE 02�23�88 LICENSE II�SPECTOR LIQUOR SERVICE AREA:. BAR AREA ' �LICENSE 1vo. - CITY OF SAINT PAUL FEE COLLECTED , 16163 � LICENSE AND PERMIT DIVISIO�V $1771. 50 LICENSE � � POST LICENSE IN A CONSPICUOUS PLACE THIS IS TO CERTIFY THAT M F L INC & CLAYTON CLUB INC DOING BUSINESS AS BELMONT CLUB PLACE OF BUSINESS 615 UNIVERSITY AV ST PAUL, MN 55103 • HAVING PAID THE ABOVE FEE AND COMPLIED WITH OTHER ORDINANCE REQUIREMENTS APPLICABLE THERETO,IS HEREBY AUTHORIZED TO CONDUCT THE BUSINESS OF: RE S TAURANT 14 HRS 10 0 S OR MORE-D (1) - $4 41.5 0 NOT TRANSFERABLE ENTERTAINMENT-D (1� � $113 O.00 FROM PERSON TO PERSON SUNDAY ON SALE LIQUOR (1� - $200. 00 OR PLACE TO PLACE THIS LICENSE IS ISSUED SUBJECT TO THE PROVISIONS OF ALL ORDINANCES OF THE CITY OF ST.PAUL,MINNESOTA AND MAY BE REVOKED. �'� ,�1 � �%,f/�� .1 •` . �.�',.....:.+�j..; • !,'::f'�'��-'.•'�iL'✓-�v THIS LICENSE EXPIRES O1/31/89 �� S �� DATE OF ISSilANCE 02�23�88 , LICENSE INSPECTOR LICENSE NO. CITY OF SAINT PAUL FEE COLLECTED 1616 3 LICENSE AND PERMIT DIVISION $17 71.5 U . LICENSE � POST LICENSE IN A CONSPICUOUS PLACE THIS 1S TO � CERTIFY THAT • M F L INC & CLAYTON CLI7B INC . • � DOING BUSINESS AS BELMONT CLUB • � • PLACE OF BitSINESS .615 UNIVERSITY AV • � ST PAUL, MN 55103 • HAVING PAID TFIE ABOVE FEE AND COMPLIED WITH OTHER ORDINANCE REQUIREMENTS APPLICABLE THERETO,IS HEREBY AUTHORIZED TO CONDUCT THE BUSINE3S OF: . .• RESTAURANT 14HRS 100S OR MORE-D (1) - $441.50 NOT TRANSFERABLE � � ENTERTAINMEI3T-D (1) - $113 0. 00 FROM PERSON TO PERSON � SUNDAY ON SALE LIQUOR (1) - $200.00 OK PLACE TO PLACE THIS LICENSE IS ISSUED SUBJECT TO THE PROVISIONS OF ALL ORDINANCES � OF THE CITY OF ST.PAUL,MINNESOTA AND MAY BE REVOKED. THIS LICENSE EXPIRES O 1/31/8 9 DATE OF ISSUANCE 02�23�88 LICENSE INSPECTOR � •�_ •� .,,.� •,�,. �' i� COCHRANE & BRESNAHAN, P.A. +�` ';� � ATfORNEYS AT LAW �t ;'.� ��-y�'� �'` 24 EAST 4th STREET SAINT PAUL, MINNESOTA 55101-1099 JOHN A.COCHRANE JAMES R. BRESNAHAN TELEPHONE STEWART C. LOPER 612/298-1950 MARY F.SEYMOUR CABLE ADDRESS:COBRA RONALD D.ALLEY" BRIAN N.TODER" `Also admitted in Texas "Also admitted in Colorado March 1 6� �9�� Mr. Joseph Carchedi License Inspector Room 203 Ramsey County Courthouse 15 West Kellogg Blvd. St. Paul , MN 55102 Re: Belmont Club liquor license investigation Dear Mr. Carchedi: Please be advised that Mr. David Fan has sold all of his stoek in Daneing Angels, Inc. Enelosed herewith for your information, is a copy of the Stoek Purehase Agreement, a copy of Mr. Fants resignation and a copy of his cancelled stoek certificate. He has also resigned as an officer and director of Daneing Angels, Ine. Thus, he has no further interest or right in that corporation. Yours truly, COCHRANE & BRESNAHAN, P.A. Byc � Mary . Seymour MFS/plc ee: Sgt. Sehaub David Fan ; , .t.�, ,-�J , ��,r�.f.;¢' ,5 ��, , � � ��-� g S'b r, 1, . . -- STOCK PURCHASE AGREEMENT � This Agreement is made this 15th day of Mareh, 19$8, by and between David S.F. Fan, hereinafter referred to as "Seller" , and Naney Osterman, hereinafter referred to as "Buyer" . WITNESSETH: WHEREAS, Dancing Angels, Inc. is a corporation duly organized and existing under the laws of the State of Minnesota; and, WHEREAS, there is a total of Fifty-One Thousand (51 ,000) shares of common stock of Daneing Angels, Ine. currently issued and outstanding and there are no other types or classes of stock authorized by the eorporation; and, WHEREAS, Seller currently owns all of the Fifty-One Thousand (51 ,000) shares of the common stoek of Dancing Angels, . Ine. ; and, WHEREAS, Seller desires to sell his Fifty-One Thousand �51 ,000) shares to Buyer and to transfer the shares upon the signing of this Agreement and simultaneous payment of the eonsideration for said shares; and� WHEREAS, Buyer desires to purehase the Fifty-One Thousand (51 ,000) shares of common stoek of Daneing Angels, Ine. from Seller and to receive the shares upon the signing of this Agreement and simultaneous payment of the consideration for said shares; NOW THEREFORE, in consideration of the foregoing premises, representations and assumptions and the terms and eovenants eontained herein, it is agreed as follows: � , . , --- 1 . Transfer of Stoek: Seller hereby transfers and sells Fifty-One Thousand �51 ,000) shares of the eommon stock of Daneing Angels, Ine. to Buyer � as the new legal and benefieial owner of record of said shares. 2. Purehase Priee: The purchase priee of the shares is the outstanding cash balanee in the eorporate cheeking aceount on the date of this agreement and the full amount shall be paid by Buyer to Seller upon the signing of this agreement and the transfer of the above-referenced shares of stock. 3. Insuranee: Buyer and Seller agree that upon the signing of this agreement, Seller shall cancel all insuranee currently on Daneing Angels, Ine. and that he is solely entitled to all rebates thereon; Buyer shall be solely responsible for obtaining . and maintaining all requisite insuranee from the date of this agreement forward. �. Resignations: Upon the signing of this agreement, the transfer of the above-refereneed shares and the receipt of the eonsideration, Seller shall immediately resign as an officer and director of Daneing Angels, Ine. and shall, from this date forward, have no further interest or right in Dancing Angels, Inc. , whatsoever. 5. Change of Registered Offiee: Upon the signing of this agreement, the transfer of the above-referenced shares and the receipt of the consideration, Buyer shall use her best efforts to ehange the registered office of the eorporation. -2- �� . 6. Representations: A. Seller represents that he has the right to sell the shares covered by this agreement and that Buyer shall receive good and marketable title to all shares conveyed, or required to be conveyed, under this Agreement. B. Seller represents that he is fully aware of and understands the finaneial condition of the corporation, that he has examined the books of the eorporation, and that he is entering into this agreement with full knowledge of the financial situation of said corporation. Furthermore, Seller represents that he has had aceess to all books and finaneial records upon request. � C. Buyer represents that she is fully aware of and understands the financial position of the corporation, that she has examined the books of said corporation, and that she is entering this agreement with the full knowledge of the finaneial situation of this corporation. Furthermore, Buyer represents that she has had aecess to all books and finaneial reeords upon request. 7. Execution and Delivery: Buyer and Seller shall each execute all documents necessary to effectuate this transfer and the change of -3- . registered offiee as soon as possible and all stoek eertifieate(s) and eorporate records, ineluding the eorporate book, shall be delivered to Buyer immediately upon confirmation, by the Seeretary of State, that the registered office has been ehanged. 8. Buyer and Seller each agree that, from the date of the signing of this agreement, that: a. The Seller has no obligation for local, state or federal taxes and no obligation for any costs or expenses ineurred by the eorporation; and, b. Seller has no obligation or right in the management of the business of Daneing Angels, Inc. 9 . Governing Law: This Agreement shall be governed by the laws of the State of Minnesota and shall be binding upon and inure to the benefit of the parties, their estates, legal representatives, heirs and assigns. 10. Complete Agreement: This Agreement constitutes the entire agreement between the parties with respeet to the sub�ect matter hereof and may not be modified or amended orally. IN WITNESS WHEREOF, the parties have signed this agreement. SELLER Dated this 15th day of Mareh, 1988. Dav d S.F. an Dated this 15th day r of March, 1988. � N ney 0 terman -4- ��lG 2 �:< r"'r ' a4F'" �,��`"' S � �' ' �v Rr."d 5 ,�� ,;' C� �k \�`t;�� ,I,f�'' :!�'�i�p,� '��y: � � �� ,�,y �l � r..�': ,,:,� ` �'�� '��:� �o'<� +, r � �'�� ,d�� j j j � �� . ,:i '�Mt.. 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I � 0 xi �•` . � L \ 3 � �.�,i��l� \ i\ � I I III�I �II II� 0 � ��" � €� • �I � � IIIII �" � :�� $� `"LLL l7� �\ II I �� I�IIII II� 0 , �� .� �� C��=�1.��n, � �1 l7�ii � � I� �II�� 9��,�� '��M1P ��j�� `�� )� � �� ` �� ',� � � � ��i�I�I�I��I�� I�� I� 0 �,�'��Y � ,� 4 � ��) SS�,� �� , � I�i iio 0 , � -1`� ,� �,� 01�'�� »> »>>)��I_I, r I��i�l��l�� „�� + �� m . � � �(�(<<c � � ��(( �, �i i I � �� r � � 1i > � �� II i�� illili I � 0 �� f� �J� �� 1 ��5�1 � S �� !� �� il�lp�I I ��I� ' '� � � �`� � ��` �� m , �� ,��3��.11�r '�� ' V � q � �i ��i � �� 0 �� I m �� L�-,��`� ��a)� � � �� =��i��II�� I��i 0� '.��'r� _ �e� • m "%o,�~`ti U 1:�"'Jr � � \ \ ,� ��I�� u I I�ilil 0 �� . 0 °"oi��v�...,��.�� \ ��II��'�IIII II , �I�� O � � _ ��.r� �r: � ��'` g�iquuaninnn m�mm�o�oo�� I�� 11116�� - � ��--=��f.. I� � �� ,.':� � �� .��i��'��'i��'� I�� r� / ��.� '� � � � � �� p �/' i m �� ` � �I� � III li `� ' �.'� � � � ��i�� : � � I�I��i�� ,! • � � �I�I�I��I�I�I I � � ■ %'�7 I l ,�,'� � \ � �I Ij�� I��II�II�� G,', � � �. • "` r � � I�I I �1-' "�.:- i � �I�� '�� i� i��l a. � � . � �� i �i �� c�� ' t �\ \ III IIIII��I IIIIII��I �p0� � � : � •• � ' � � �IIU Ilhli �ill I I ��i I II�i�� 0 �� I b � ``F� �� V ��III��I��;�;��i ��I" � I��iIj !I�i�� --•�.._._� . �.�� ':. ' � ��III��I�� I °iI I '-� ^ ,,r+� .:a.�. �� , . ��- , . . � ( ... ^ -.." ::... ,�o. . . 5 �� , �� I�I I�li� � I II ��I�! �IIIIII � � �.� :».�}�S �. � �� \ �� ' � � � �� I� � hul� � � � - �� I� �I „�;� �, '{?�, �, � �� A � �� Ilh�I�I I�I " ��;i��l�� , � �� r ( I I� �I�I�i�� I�� , ■ �i,� �� <� � ` � �ill I�I�,�Iil�l � � '�I� ; � i�� `,:, ��` � ��:� � � �� "�: � �� ,�a,.r ^ ar�� ;I.,�I;II!Iil II lil�lllll�� .,�`' ti�� -�;l` .. � � �� o e�° � . '�,, .• � \ '`��" � •.� "<: \ ` �� .'�iy � � �u �T� z <� _,�� ' y, r ,� �� z �:� �"' �� '� �� `d A "� �,+� � �qr' � z n ;,t� �,W'V�°� r,.r� �c. � ` t +�� ^� �,ti,� "'� �'� �f oi O O �O �'� �'N" O '� y��'/~aY I c �W Ol��_`t � ��l� f v�� Ca ,�i�, � r� �� ' �r=�t� �� a� � � � � � � � �� , �'� �,� �� ' f ,��` s ; � O,� �C, O � 0,� ;Ct� 0;0 �:'r! � � r+"';" ! s��. �" ' �� " ,^� �s � � � � � � � � � �� ' - i ` ' �'� x ° "�`� �•0 �°�•0�0�'�'``0 0�� _•�0`°'��°'�`��''' �'�'�,,;� {�- � ,� .7�� .� �-Lk�!v� '�:5��' .af_ ,.o � z y ..x• ,�b .�' � � �:• .r '�n �,� � .:�.,,�:. .E.,:;, � e �%� �"�rn,G19',a,Qia,e h�cein�ed, _ ��.�1,�,�� ,e!eiY/�y Nancy Ostern�ail Fift One Thausand (51 000) �Q ��y Y i el�G2'�� ,��o �� /p �— —/ �a %%(�GL/.��/�GCk/%��2�/�i �P��e%�'�2�,��%�'GG�i��:�/GT?�� "�' i $a8;, ��C'O�'C6�G,�Gl/�Pi.�2%rGGr�,�: L�L�C�� "�°As a��N `- / ��5 Nanc.:y Osterman :'::, �/J � 1�� Aa /K/ �iV/�/iE�I��G�CJ%��/I/i%�%GGi'�/��7Gf/�,��l��I//!/ �A�A 1�^� �� l 2 ��%�lC^�/9��I//I/��If�l��t��/VV��-f<'C�!/l/t/�i��Zil/L/GV/I//I//V S��~ a� i��/ . �a�� i� ��/,p� rlarch 15 'y ss =g� ��jIJ A J��/��/� • , THIS SPACE IS NOT TO BE � ' . COVERED IN ANY WAY � � MEMORANDUM RE: Procedures Used by the City Council for Hearings on License Revocations, Suspensions, and Denials of New Applications and Person-to-Person Transfers. The hearing is a quasi-judicial or adversary hearing. It is brought before the City Council to consider whether a license should be revoked, suspended, or conditioned; or whether a transfer should be denied; or whether an application for a license should be denied. Recommendations may be made by the License Inspector or other City departments. This hearing is in many respects similar to a trial. You may be represented by an attorney or other representative of your choice. � The grounds for taking adverse action against the licensee or applicant will be spelled out in writing in a letter to the licensee or applicant. Generally, Council will not go beyond those charges or grounds which have been set out in writing and furnished to the licensee or applicant before the hearing. If some important and pertinent new information comes up during the course of the hearing, the Council may consider receiving the information, and providing the licensee (applicant) an opportunity to respond at a Iater date. Generally, the case for adverse action is represented by the License Inspector, who proceeds first with his witnesses, all of whom are under oath. All such witnesses may be questioned by members of the Council, and cross-examined by the licensee or his attorney. Following that, the licensee (applicant) has the opportunity to present whatever witnesses or testimony he may desire, which similarly will be taken under oath. Any such witnesses are also subject to questioning by members of the Council, and to cross-examination by counsel for the License Inspector. At the conclusion of the evidence, each party is given a brief opportunity to summarize their position. The proceedings will be recorded by a court reporter, and transcripts (if desired) __ must be ordered and paid for by the party requesting them. The City Council follows the evidentiary standard spelled out in the State Administrative Procedures Act, which allows the admission of "evidence which possesses probative value commonly accepted by reasonable prudent men in the conduct of their affairs." This includes hearsay testimony. It is within the discretion of the Council to exclude repetitious, immaterial, irrelevant, and incompetent evidence. If action is taken by the Council, its action is incorporated in a proposed resolution and presented at the Council's next meeting. At the Council session, each party may present argument and comment on the proposed resolution. Normally the Council does not take additional testimony or evidence, relying upon the record made at the hearing. All statements or ob�ections must be made through the Chair, and any questions other than your direct or cross-examination must be made through the Chair as well. It is in your interest and in the interest of the Council that you be represented by an attorney during the hearing. No licensee or applicant should, however, show up on the day of the hearing without an attorney and expect that the proceedings will be postponed uniess that licensee or applicant has asked the Council for a delay at least several days in advance of the hearing. N �� , ,� � 4 Z � " ° �—� w a nl J,o0 u �. �c i t 0 , � � v'R+o . t �� „,�, , � u u d��""-1 g z =R� � = v 3 � � � e = � � YI � r � y V �`^� Y ` � '` � � � � < W p k x � u � � � r o u � Z � ' � � � Q w � ° � Q � ► s i � '� �i ° z y t u o � a e � C� � X L~.. t o � ; � y : � ❑ � � � � � > > � W 7 Y � � W 1 • V � � > > L Q �. � a � � � h p � � O 7 F"q � + : y p Q � � O � O O � O I � �� .J � z � • � � o � � � Z Y = � p W Y g � � � � � e > J W � � � � < < N � `\( � d y J C 0 � � F y � W � f a < o �,n W �' O � a a W , ❑ m G � ` Q ,� � � � t � � � � � o � 0 J � W p � � � ' • a r'� '`* � . c� � 3 a' � ' u d „ < t O J y p . f ° 4� r t� o � � � I � � �y.i � N Z 0 W t j �. �.( < � � � � � � o U O z '' o ,� : � < � . � � p � v p yZ) ' F � w � �. w e �+ � � ► �p o w i \ � � Q �, Q`�' W ! � C!o � � � r , c � G S F > ` J ; F � O W � 0 �. . � 4� C Q n � � � � � � .Q N O O Q ��+ � o (n e � i i � � � r j 3 �� H � z"1 M— C'y r. � fA . j(7- i � n � � � ~ � � . o ; o � . � C � N � � . 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AT � � �., � � � I • �Y� ��:�'°J��"�i`� ��C� JuL 5 19�, CITY OF SAINT PAUL �1Tf o1�� `o ''' OFFICE OF 7HE CITY ATTORNEY + '�!�'� ^ �1�Y O � �1 : �'� ��1 ;% `%,m `'=�1�-J��' ;=- EDWARD P. STARR, CITY ATTORNEY °'n��,'!°'�s°� 647 City Hall, Saint Paul, Min�esota 55102 612-298-5121 GEORGE LATIMER MAYOR June 30, 1988 Carol Grant Administrative Law Judge Kurzman, Grant, Manahan, Bluth & Barker 2404 Stevens Avenue South Minneapolis, P�Iinnesota 55404 RE: In the Matter of the On-Sale Liquor License for the Belmont Club Dear Ms. Grant : Enclosed are copies of the on-sale intoxicating liquor license you requested, together with Mr. Segal ' s opinion letter of September 14 , 1987 , as you requested. Very truly yours, � PHILIP B BYRNE Assistant City Attorney PBB:paw enc . cc. James R. Bresnahan � ��°�� 1�sg ,, � COCHRANE & BRESNAHAN, P.A. ATfORNEYS AT LAW 24 EAST 4th STREET SAINT PAUL, MINNESOTA 55101-1099 JOHN A.COCHRANE JAMES R. BRESNAHAN TELEPHONE STEWART C. LOPER 612/298-1950 MARY F.SEYMOUR CABLE ADDRESS:COBRA RONALD D.ALLEY• June 29� �9�� BRIAN N.TODER" 'Also admitted in Texas "Also admitted in Colorado ICurzam, Grant, Manahan, Bluth & Barker 2�04 Stevens Avenue South Minneapolis, MN 55�0�4 Attention: Carol Grant Administrative Law Judge Re: In the Matter of the On-sale Liquor License for the Belmont Club Dear Judge Grant: Pursuant to your letter to Messrs. Bresnahan and Byrne dated June 17, 198$ and received by us on June 27, 1988, I am enclosing the following materials: 1 . A copy of the license for intoxicating liquors (on-sale) for MFL, Inc. and Clayton Club, Ine. d/b/a The Belmont Club; 2. A copy of the application for renewal of on-sale intoxicating liquor license which has been submitted by MFL, Ine. and Clayton Club, Ine. d/b/a The Belmont Club, together with a copy of the new license that has been held up pending these proceedings; and, a copy of the opinion letter dated September 14, 1987 from Edward P. Starr, City Attorney and Jerome J. Segal, Assistant City Attorney to Couneilmember William L. Wilson with eopies to the Mayor, Couneilmembers, and the City Clerk. In addition to those items, I am also enelosing Respondent� s Reply Memorandum and an Affidavit of Service. Yours truly, COCHRANE & BRESNAHAN, P.A. B y• o� . ��%/ l ��`!� Mary F. Seymour MFS/ple Enclosures ec: Phil Byrne w/encl . MFL, Ine. w/enel . �i�` .$ . . ��y�� :r . `_� . ��`fi * r '�� 4 �,�� , , , . � ; 1t& .., f .-' " . - �, - �._ , � .' ' _ . y, ,. � �- .,` - t.' . ,. `K,u��', 4 , }' .�'�, .,•. , , FEE $3351.00 � ' � CITY DF SAINT PAUL ` . - ,.,.�;�.,�,�;. �x�5� , .'� •, _ LICENSE�-�ERMIT-DIVISION � 4 { LI � `� NSE :��; �� • a ��> � �ya�„v•.� ' . �� r �z� � �k F:� � i .� ';� INTOXICATING LIQUORS "ON SALE" : T� - �'�.[. -�,� H i�� r� � j �'� ��71 �LlALJl :$3351•�0 . � ��.ai`� �.�x r <t+ 1 ��°f.. e ... . . �L1�L l�e'fiJC :Q� � t1'ii c . "...t . .r`�, S �. iit.:,�� -,. E '.� . :�. '. . . .. � . �§_ '�HIS C£��"�'FI�S 7'HAT; M F L �INC &� CLAYTON„CLUB INC . ' ��- 3X;' .: :,i t ... �„ . . .^- ; ' �.. .:. ' ...._ '. .' . ' � . . �� .. :.�� V' .�.. � .i'� i ..E;.a t�_.;... ... . . .. ..�. , �. , '. . .:. . ... . . . . . _�,: �/►yINL�pJ11D'TH$�1SQV�''F&E AND HAVING COMPLIED WITH OTHEA OR.DINANCE REQiJIRF•MENTB IS HEREBY �'` ;,i��#�qRtzSn�rro s�.L _' " � INTOXICATING LIQUORS "ON SALE" �`- �� ACCORDAI+�CE VY'ITH THE�80VISION3"AF OR.DINANCE NO.7b37,APPAOVED]ANUAR.Y 18,1934,BUT SUB7ECT TO ANY ``` . AMENDMEIVT._�R AMENDMEIvTS OF SAID ORDINANCE NO.7b37,IN THE FOLLOWING DESCRIBED PORTION3 ONLY OF THf: 4 BUILDING ST1tUCTURE KNOV�N AS BELMONT CLUB � _ . � ' ,x.�.� x LiBf-�-i29ITY AV > ,� � �.. � � ��.� � ��.`` '�"` �� 4 ��-;�ST PA�,TI+ 'I�t�`55103 � � � � � k = �,� :�. �..�:? �. ::' , �, : : ` : �.' � �,;� � . � ` . � " g,.�".t:�r.�. ' L�CE '�F.IViUST BL:BEPT P()STED �iV A Cnl`1SPICLIOUS PART OF � -� ,,.'�- _ '` _ - :` THF ABOVE PLACE QF IitJSIT E 3S ' { ..:':�' ;: NOT :'RAA RAi>1_1 FROM PERSON 7'�� PF,RS '�. JR !' A�'E TO PLACE TH, � 110ENSE IS 1SSUED SUBJECT Tc THE - -� .x .� . � PRUVT_SIONS GF ALL ORDINANCES OF THE OITY �.� SERVICE QRF.�� ,B��. tR�r1 OF ST.PAUL,MWNE30TA,AND MAY BE REVOKEll :�' � F; �a�'�t�� :a� - } � AT. ' TIIKE IF S OVISI S ARE OL TED. �` �p� '� � d��_ t��,� �. ;�� :4 y. , . ' . . , , i ^ • .::' �xis iicExsE r.xPi��:01�31/,88 ' �: - _ � „�p,��OF ISSiIANCE O��'2 S�8 7 � � LIC NSE INSPECTOR �, +a�°". "ss-• w - a �: �:'� a .�+ '' �. , � � '� ' ..:: Y . .. .._; .. . -+5�''s.� �� '� "i ' FEE COLLECTED , , �� s; .' CTlI' OF SAINT �AUL $ 64 75 ` � �� ;' � LICENSE AND PERMIT:DIVISION ` ' 2 • " ��: r 6�63 „t� ,� � �— � a.� � � � N � E �:=_ � � k �� L�I C:E s< � �.,� .i.�'i, c � �� '� �:�. .�� . � . � � . �� . � �_..� ...._ �� k; >� t -. ��' � POST.LICENSE !N A CONSPICUOUS PLACE` _: �.: ;:� : , _ .. ,� ,. w ;::: ;� � ,.:_ �. , ��, THIS IS �'¢'�.-:` ' ,- �'.° ' 1�ERTIF'Y`:�''HAT '. M F L INC & CLAYTON CLUB INC - ��, -: .�OING BlTSINESS�AS; fi BELMONT CLUB - .t' .��_y ., .... . . 5 , . .� . ' . :- . ` '. , . . y : � ., °� ��LACE DF BUSINESS .- .-- .� 615 UNiVERSITY AV ' ' • , :. � ... _ < � ST PAUL; .MN 55103 _ :.. ` ' . - . : _ - �IIAVINt3 PAID THE ABOVE�EE AND COMI'Li�D WITH OTHER ORDINANGE RFQUIREMENTS APPLICART.F,THER.�7'O,1S �$�#&,�,AUTHORIZTD.TO C�NDUCT THE BII9INES5 OF: �pT TR ANGFF.R.ARi.r. '°`° � ` ;:�5'UPIDAY_'�!'N SALE S�I4U0� (�) $.2 0 0.o� : ` ''� 64:'7 J� ; �� FROM PERSON TO PERSUN � '�..�T'��t��N1�EN�'� (1�` $ _ _�, � ..��. �„ £ .. . „ . , ,;, `. - � •.OR PLACE Tb PLACE 's�. � , - . _ � '`� > ; � �4- � � THI3 LICENSE is ISSUED SUBJF,C,T To �, "F ` Y 0. � THE PROVI9IONS OF ALL ORDINANCES �� y; �' �` � � �� OF THIS CITY OF ST.PAUL,MINNESOTA �` , t' , T -' � , '- AND MAY BE REVOKED. � . � . � . .i. . . }�,� .._ . . . . . . � .... ; . , . ... . . „ � �� . . . . � - . � 9 r P ` '. r � "�'��`r � � �x�;�S. ;; � �: � � ':_ �. i s � '.:fi .- '...• �;,�_/i i � ' .::� �r�/ . . �.�_ � �.: , �m- �g 0'��31�r88 , �x �-� � �_' � f.,:. , �,,,,lv'� /��,,�%L��":,.(:...�..L... i: � �HI�i�IC�E.F,XP y �., ' �IEE�iSE INSPLrCT�R' t�-'�!��' VL' ��'�-r6n •��I Q�/'H� .7 :Y.F.7�5 4�.: � � �, � � , � � Ys "' ._.� ,� . . . ' : ��:. �+� ,., r, �.,y� �'n P � _. ��r_ :{�P"� �� 1 i. �...r3ar• �m � u . ., ' ..,�� , ; "... ,' .�. . .: )?�� Y��rt�� K t d..- � � n 'V'.C'�,� � � 1 .1.''wsr '�'i" 1 � y �� . .r..nw�.�....eRw ...,�.,r• ., +.-�cr'�- ' � i;-. �l � 4l'�!k.J �:"S�C`� +� :. � .�"p �wT1".�4'^ ..t � —' . .. . :�� ,� t: �s �.. . �'+°'°'� :,ti i^ w ,Ty, i'M"..�j� ,'-.� .� . -..a.R °�'� .�?+�liM�"`�a�u: �:.r. 'r��.. 5 . t �-'�' . . �r 2^` A.`�v �r � �� ,,n�. �»�vi3►� - . � . .Ct, ..:�yiav"_ . . . . '",�"�iw�,'�' ,,'..rx;t� . . ' � � �" . • Room 203, City Hall r � Saint Paul, Minnesota 55102 � � �� /�� ' APPLICATION FOR RENEWAL OF ON SALE INTOXICATING LIQUOR LICENSE � � PLEASE COMPLETE ALL ITEMS LISTED BELOW - 1, Appl icant/Company Name �1"L Z/liC� �L/}��ON ('L• �D � �- � ?� 5` --�-7� Telephone No. 2. Business Name 71�� Ll�'10� �7 CLU� j. Business Address STREET: �� V�C'.sl�y 'l4'UZ'� N/ � �dNfLl�l°�/� lvumber Name Dir ction Type 4. Mail to Address STREET: (�/S� GN/V�'Sj7�y /�'(j� �/Z� �'7/L1�j�'li Number Name Direction Type . S7. p�L Nr� ,�.�i�3 City State Zip Code 5. Name of Applicant .v//�� s� �� Telephone ��2 - 2Z�f-r�7� Individua�/Partner/Officer Area Code/Number . 6. Applicant Address STREET: � 7�� P�Z ��1� �Zf�p�J�/� . Number Name � Direction Type �I�n�n�%c�) l�In/ .5�'io9 City State Zip Code 7. Type of Business: Restaurant Club � Hotel/Motel 8. Manager in Charge �� J` �� l� �U d� -�C� First Name Middle La.st 'Da e of Birth 9. Manager Home Address STREET: � �v 1`' l �'7�'�� n(f'�F� ��L'�`� ��.c-J�1�C''�L7�/.'� Number Name Direction Type = '_i /�-II�AI�-w�� M�V • �/��' • . � c. ity State Zip C de _ ._ ' — Telephone �� - - 77�— U70 �f ��'� ; l�� . � �``- � Area Code Ivumber Orig. Da'te of Employment - �.-- _ �. - - _ _ . `;:. . 10. ' Are any:;o�he' following taxes oz charges for the licensed p:emises unpaid or delinquent? - -� Real Es�at�Taxes Yes No � Persanal Property Taxes Yes No `� Special Assessments Yes No �/ City Utility Bills Yes No ,/ 11. Tf�there have been any changes in intereata in premises or finances, or contzacts between - , applicant and any persons, corporation, partnerships, or any new loans since license• was, , � ' . last issued, explain in detail: . /vv ��C� � 12. Liquor is served in the following areas (rooms) tiI/�-l/1/ p� .R'l��79-' 13. Seating Capacity: 140 seats or less �ver 100 seats over 200 seats White copy - return to License b Permit Division ` � f/� •�_` � Pink copy - retain for your records �� ,*=—`��1--7� SiQnature of A�plicant . _ 1�' �- ' � �� „ NOTICE . �� . � . Pursuant to the Minnesota State Legislature by Chapter 332, Section 47, Laws of 1987, every state and local licensing agencq is zequired to withhold the issuance or re- newal of a license oz permit to operate a business in Minnesota unt�l the applicant presents acceptable evidence of compliance with the workers' compensation insurance coverage requirements of Section 176.181, Subdivision 2. ' This information is required by law, and licenses and permits to operate a business may not be issued or renewed if it is not provided and/or is falsely reported. Furthermore, if the information is not provided and/or is' falsely reported, it may result in a �1,OG0.00 penalty assessed against the applicant by the Coammissioner of the Department of Labor and Industry payable to the Special Compensation Fund. Upon request, licensing authorities are required to furaish workezs' compeasation insurance coverage information to the Department of Labor and Zndustrq to check for compliance with Minnesota Statute Section 176.181, Subdivision 2. , Any questions regarding worke:s' compensation should be directed to the Minnesota Department of Labor and Industzy - Special Fund Section - 29i-4777. FAILURE TO SUPPLY REQUESTED Ib'FORMATION WILL DELAY THE PROCESSING OF YOUR�IC�SE . OR PERMZT ISSUANCE OR RENEWAL APPLICATION. � � . . _ ��_ ,1 i _._ ." _ Please supply the following information and return this form with other p�ersr�f __ __ applicable, and your appsopriate fee to: Citv- of Saint -Paul License and Pertait; Division, Room 203 Citv Hall, Saint Paul, MN 55102. = � �.;' � �. ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ,_- � - - - Insuzance Conpany Name /,, , _, (NOT the insurance agent) l�v �Us� 21V.S. (%t�. . Policy Numbez cr Self-Insurance Permit Number � d 3 /r�o D b� / � . �_�(f _p7 j �' , Dates of Coverage °� 'Tt� �_. � — �� /� �7 , effective expiration . . • . . . , . OR - _- - - � _ . � . — I am not required to have workers' compensation liability coverage because: �� ( ' ) I have no employees covered by the law. , - _. _ _ _ _ ._ _ ( ') Other (Specify)- -_ _ __ _ - _ I HAVE READ AND L'lv'DERSTAND MY RIGHTS AND OBLIGATIONS WITH REGARD TO BUSINESS LICENSES, PERMZTS, AND WORKERS' COI�ENSATION COVERAGE, AND I CERTIFY THAT THE INFOR."SATION PROVZDED IS TRUE AI�TD CORRECT. Business Name _ M �L �✓ � � 8/9 7�C� �� `c,.Jc/V7 ��f/6 Address b �S �N/l�sf7t��'I/� S'�'• pq'(/�- �ti s�/O, 3 . street . city state zip code '� : �� ;��<�i�->> - ��cT cl � signature date � i ' � . i ` � • � �. � , • . C I T Y O F S A I N T P A U L LIC—ID: 16163-2 -� L I C E N S E R E N E W A L N 0 T I C E INV—DT: 12/07/87 *** SUBMIT THE FEES FOR THE FOLLOWING LICENSES BEFORE THE PAYMENT DUE DATE. *** *** YOU MAY BE PENALIZED UP TO 50 $ OF YOUR LICENSE FEE FOR LATE PP.YMENT.. *** *** PAY TOTAL AMOUNT SHOWN WITH CHECK MADE PAYABLE TO CITY OF SAINT PAUL. *** ( BOND AND/OR •INSURANCE ORMATION ATTACHED ) �� PAYMENT DUE DATE : O1/31/88 � (_ M F L INC & CLAYTON CLUB INC p MINNESOTA TAX ID # : 4983842� �� BELI�IONT CLUB v � LICENSE EXP. DATE : O1/31/ 8� 615' UNIVERSITY AV `� ,v\;5��' -- - - -BOND EXP. DATE : CONT � - - ST PAUL, MN 55103 � �'1 �,� INSURANCE EXP. DATE : Ol/31/88 � �O L� UNIT—COST #UNITS AMOUNT � -------- ----- --------- ?573 RESTAUR.ANT 14HRS 1005 OR MORE—D 441. 50 � O1 441. 50 ?57 9 �2JTERTAINMEh'T—D 113 0. 0 0 '�' O1 113 0. G 0 '081 LIQDON SALEAOVERI400RSEATS—B �I � 200. 00✓ !/� O1• 200. 00 Qc, - . y 3786. 75 � O1 3786.75 l� 13.3, ^� .� , ' . . . APPLICATION FEE : '2 . � =� . . . �/',�C� `�`� _ . .._ .__.—_� _ TOTAL- : __ � - ��-�- - . , �--; - � , ;- _; � =; - - - 3��.3'7� �,� - �, . . . � 1 'i � _ .:�. ;�,�. � �� - -- � .l � _ :, LIC—ID: 16163-2 • ' � • � -- � ($I5. 00' CHARGE FOR RETURNED CHECKS) (IF OUT OF BUSINESS, PLEASE INFORM US. ) a -l3 ��2. �� --------------------------��==�=----------------------------- °----- -- . _.. , ' _ '.�� .. •�,-.. ,._ .�../��--T�T- -lr-�. .. _ .��. � . _�..� . Y_.^ _ ._..�..' � ". -r.. . . "" �: � ' - --� -- • - .,.. . ... .�ia.... . nva. tLt .�.� /t5b. /� � � � �1GI63 LICEA'SE d PE'RMIT DII'lSIO�'�' : � . LIC � NSE INTOXICATING LIQUORS "ON SALE" 1ST HALF: $1893 . 37 2ND HALF: $ TN1S CERTIFtES TNAT M F L INC & CLAYTON CLUB INC HAVING PAID THE ABOVE FEE AND HAVING COMPLIED WITH OTHER ORDINANCE REQUIREMENTS IS HEREBY AUTNORIZED TO SELL 1NTO7�ICATING LIQUORS "ON SALE" IN ACCORDANCE WITH THE PROVISIONS OF ORDINANCE NO.753T,APPROVED JANUARY 18, 193d,BUT SUBJECT TO ANY AMENDMENT OR AMEA'DMENTS OF SAID ORDINANCE N0. 7537,IN THE FOLLOWING DESCRIBED PORTIONS ONLY OF THE BUILDING STRUCTURE KNOWN AS BELMONT CLUB LOCATED AT 615 UNIVERSITY AV ST PAUL MN 55103 THIS LICENSE I�4UST BE KEPT POSTED IN A CONSPICUOUS PART OF THE ABOVE PLACE OF BUSINESS - �� NOT TRANSFERABLE FROM PERSON TO PERSON OR PLACE TO PLACE • - THIS LICENSE 1S ISSUED SUB�ECT TO THE , � PROVISIONS OF ALL ORDIJv'ANCES OF THE CITY OF ST.PAUL,MINA'ESOTA,AND MAY BE REVOKED AT A�TIME IF SAID OVISIONS ARE VIOLATED. _ � � , , � �� ,� THIS LICENSE EXPIRES 01/31/89 � ` _.. . ,.� .�� /� oo . ,p�' DATE OF ISSUATCE 02/23�88 _ _ _ LICENSE INSPECTOR ' - -- LIQUOR SERVICE AREA: BAR AREA t,1cEr.sENO. CITY OF SAINT PAUL FEE $3786.75 16163 LICENSE d PERMIT DIVISION . LICEI�TS. E � INTOXICATING LIQUORS,"ON SALE" • 1ST HALF: $1893 .37 . ' 2ND HP..LF: $ � � � THIS CERTIFIES THAT M F L INC & CLAYTON CLUB INC •' 'HAVING PAID THE ABOVE FEE AND HAVING COMPLIED WITH OTHER ORDINANCE REQUIREMENTS IS HEREBY ' AUTHORIZED TO SELL , IN7O7�ICATING LIQUORS "ON SALE" , 1N ACCORDANCE WITH THE PROVISIONS OF ORDINANCE NO. 7587,APPROVED JANUARY 18, 1934,BUT SUBJECT TO AI��'1' AMENDMENT OR AMENDMENTS OF SAID OR.DINANCE NO. 7537,IN THE FOLLOWING DESCRIBED P�RTIONS ONLY OF THE BUILDING STRUCTURE KNOWN AS BELMONT CLUB - . LUCATED AT 615 UNIVERSITY AV • ' �, , � ' , ST PAUL MN 55103 ' THIS LICENSE MUST BE KEPT POSTED IN A CONSPICUOUS PART OF THE ABOVE PLACE OF BUSINESS A�OT TRANSFERABLE FROM PERSON TO PERSON OR PLACE TO PLACE THIS LICENSE IS ISSUED SUBJECT TO THE PROVISIOA'S OF ALL ORDINANCES OF THE CITY OF ST.PAUL,MINNESOTA,AND MAY BE REYOKED AT ANY TIME IF SAID PROVISIONS ARE VIOLATED. THIS LICEIiSE E)iPIRES O 1/31/8 9 DATE OF ISSUA\CE 02�23�88 •� LICENSE 1NSPECTOR " LIQUOR SERVICE AREA:. BAR AREA , . '-LICFrNSE NO. CITY OF SAINT PAUL FEE COLLECTED „ 16163 LICENSE .lND PERMIT DIVISIO�V $1771. 50 LICENSE � � � POST LICENSE IN•A CONSPICUOUS PLACE THIS IS TO CERTIFY THAT M F L INC & CLAYTON CLUB INC DOING BUSINESS AS BELMONT CLUB PLACE OF BUSINESS 615 UNIVERSITY AV ST PAUL, 1�'IId 55103 • IiAVING PAID TFIE ABOVE FEE AND COMPLIED WTTH OTHER ORDINANCE REQUIREMENTS APPLICABLE TFiERETO,IS HEREBY AUTHORIZED TO CONDUCT THE BUSINE3S OF: RESTAUR.ANT 14 HRS 10 0 S OR MORE—D (1) — $4 41.5 0 NOT TRANSFERABLE ENTERTAINMENT—D (1) — $113 0.00 • F�iOM PERSON TO PERSON SUNDAY ON SALE LIQUOR (1) — $200. 00 OR PLACE TO PLACE THIS LICENSE IS ISSUED SUBJECT TO . THE PROVISIONS OF ALL ORDINANCES � - - OF THE CITY OF ST.PAUL,MINNESOTA AND MAY BE REVOKED. �f� h ,.. � �f��-,�' ,� f. /r�`��~�'✓// �:J�'�.�k"""i��/�� TA1S LICENSE EXPIRES O1/31/89 � (� DATE OF ISSUANCE 02�23�88 LICENSE INSPECTOR _ LICENSE NO. CI7Y OF SAINT PAUL . FEE COLLECTED 16163 LICENSE AND PERMIT DIVISION $1771.50' . � . LICENSE � POST LICENSE IN A CONSPICUOUS PLACE THIS IS TO - -CERTIF,Y THAT • M F L INC & CLAYTON CLUB INC . • ' � DOING BUSINESS AS BELMONT CLUB � • • • • . PLACE OF BUSINESS .615 UNIVERSITY AV • � ST PAUL, MN 55103 • FiAVING PAID TFiE ABOVE FEE AND COMPLIED WITH OTHER.ORDINANCE REQUIREMENTS APPLICABLE THERETO,IS HEREBY AUTHORIZED TO CONDUCT THE BUSINESS OF: _ . �.• RESTAURANT 14 HRS 10 OS OR MORE—D (1) — $4 41.5 0 ' NOT TRANSFERABLE •. , ENTERTAINMENT—D (1) — $113 0. 0 O FROM PERSON TO PERSON SUNDAY ON SALE LI QUOR (1) — $2 0 0. 0 0 OR PLACE TO PLACE � THIS LICENSE IS ISSUED SUBJECT TO THE PROVISIONS OF ALL ORDWANCES ' , OF THE CITY OF ST.PAUL,MINNESOTA AND MAY BE REVOKED. THIS LICENSE EXPIRES O 1/31/8 9 DATE OF ISSUANCE 02�23�88 LICENSE INSPECTOR ^ . � �..�, --�., . - _, �� - s`,;r�-� ,� ��t,., o,• � ; �--: :.�� CITY OF SAINT PAUL #�� OFFICE OF THE CITY ATTORNEY :� a� ar• ':� t111lIIII •: �' ��u�� = EDWARD P. STARR, CITY ATTORNEY ,. , r��"'��°� 617 City Hall,Sairn Paul,Minnesota 55102 GEORGE LATIMER 672-29&St2� MAYOR ' September 14, 1987 � Councilmember William L. Wilson 7th Floor City Hall Saint Paul , Minnesota 55102 • Dear Council Member Wilson: You have introduced amendments ta Chapters 409 and 410 of the Saint Paul Legislative Code, which amendments would further restrict the viewing of certain acts of nudity and sexual acts _ _ from within a liquor- licensed establishment. The ordinance amendments are before the City Council for consideration and _ -_ - -you have asked for legal opinions on the followin� questions: 1 . Is it in violation of the Constitution if the City of St. Paul sets restrictions on viewing of nude dancing in our licensed liquor establishments? 2. Does the entertainment license classification ordi- nance allow nude dancing in bars? 3. Under our current ordinances , what constitutes the licensed premises of an establishment, the entire . establisYiment or just the public areas? _ _ _ _ _ I. The present . ordinances which. regulate sexual conduct in .bars � . are ` set forth � in section 409.09 (intoxxcating � liquor) and�' �in � section 410. 05 (non-intoxicating malt liquorr. Both sections are identical and prohibit other sexual conduct � or activities ' , in addition to nude dancing: . • . i:; � "Certain sexual conduct prohibited. The following acts or conduct on licensed premises are unlawful and - shall be punished as provided by Section 1 .05 of the Saint Paul Legislative Code: (1 ) To employ or use any person in the sale or service of alcoholic beverages in or upon the licensed premises while such person is unclothed or in such - - attire, costume or clothing as to expose to view , : -,i - - ��`- i�� Council Member William L. Wilson Page Two September 14, 1987 � any portion of the female breast below the top of , the areola or of any portion of the pubic hair, anus, cleft of the buttocks, wlva or genitals. (2) To employ or use the services of any hostess while such hostess is unclothed or in such attire, costume or clothing as described in paragraph (1) above. (3) To encourage or permit any person on the licensed . premises to touch, caress or fondle the breasts, . - . buttocks, anus or genitals of any other person. (4) To permit any employee or person to wear or use any device or covering exposed to view which simulates the breast, genitals, anus , pubic hair or any portion thereof. ' (_5)_ To permit any person to perform acts of or acts _ - - - - - _ . - - - which simulate: (a) with or upon another person sexual intercourse, sodomy, oral copulation, flagellation or any sexual act which is prohibited by law. � (b) masturbation or bestiality. (c) with or upon another person the touching, caressing or fondling on the buttocks, anus, genitals or female breast. - - _ -- _. __ _ _ _ (d) the displaying of the pubic - hair, anus , vulva, genitals, or female breast below the top of the ' areola. (6) To permit any person to use artificial devices or in- � . -_ _ -.- - _ - _ animate ob j ects to depict any of the prohibited activities described above. (7) To permit any person to remain� in or upon the licensed premises who exposes to public view any portion of his or her genitals or anus. (8) To permit the showing of film, still pictures, elec- tronic reproduction, or other visual reproductions depicting: � . Council Member William L. Wilson Page Three September 14, 1987 . (a) acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copu- lation, flagellation or any sexual act which is prohibited by law. (b) any person being touched, caressed or fondled on the breast, buttocks, anus or genitals. (c) scenes wherein a person displays the vulva or , the anus or the genitals. (d) scenes wherein artificial devises or inanimate objects are employed to depict, or drawings are employed to portray, any of the prohibited activities described above. " Following the adoption of these ordinances bars discontinued - - providing nude dancing on the licensed premises. Sometime . - _ _ - . _ _ _ _ thereafter a bar apparently modified its building so as to construct a wall separating the licensed liquor area from the dance stage and a glass wall or barrier was placed between the bar and stage. An administrative interpretation was made that because the stage was in a room completely separate from the licensed area with no door or other access connection between � the bar and .stage, the letter of the ordinances was not being violated. Thereafter, nude dancing has been provided in a . few bars within the City using the means of a glass wall to separate the licensed bar from the stage. I- -understand- that- it - is -your intention in submitting these - ordinance amendments to eliminate this "loop hole" that may . exist in the present ordinances and thereby eliminate the glass wall as a means of avoiding the original intent of the City' s or3inances. � � � - The proposed amendments -would -alter_ -the opening - paragraph to . sections 409.09 and 410.05 so as to add the language which . ' is shown as underlined: • Certain sexual conduct prohibited. The following acts _ _ ___ or conduct which either (a) take place on the licensed - premises, or (b) can be viewed from the licensed premises and take place (i ) on premises adjacent or ln close prox- imity to the licensed premises , or (ii) on premises located within the same building or structure as the . licensed premises , are unlawful and shall be punished __ as provided in _Section 1 .05 of the Saint Paul Legislative Code.� � - Council Member William L. Wilson Page Four September 14, 1987 The amendment prohibits certain sexual acts which can be viewed from the licensed premises and which either take place on premises adjacent or in close proximity to the licensed premises or which take place on premises located within the same building � or structure in which the licensed premises are located. The additional prohibition relates to acts which can be viewed from the licensed premises in addition to such acts which actually take place in the bar. It is the intent of the amendment to regulate the conduct on the licensed premises only, and to restrict both the prohibited acts on the premises as well as � . the ability to view the acts on the premises. The amendment cloes not prohibit acts which happen in places other than within the licensed establishment, but does prohibit the viewing of � such activities from within thc liquor establishment. The importance of this distinction will be explained later in this opinion. UNITED STATES CONSTITUTION Statutes, ordinances and regulations which restrict or prohibit sexual activity within liquor establishments have been challenged as violating people' s rights to freedom of expression and speech guaranteed by the First and Fourteenth Amendments to the United � States Constitution. The First Amendment restricts activities of Congress , and the Fourteenth Amendment prohibits the states from "enforcing any law which shall abridge the privileges or immunities of citizens of the United States. " ' FIRST AMENDMENT Congress shall make no law respecting an establishment , - of religion, or prohibiting the free exercise- thereof; � ' or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and . . to petition the Government for a redress of grievances. ' ' _ - _ _ _ _ The first of the most recent court challenges with� . a state ' . restriction of sexual-type activities within liquor establish- , � ments was the case of California v. LaRue, 34 L. Ed. 2d 342 (1972) , decided by the United States Supreme Court in 1972. The California Department of Alcoholic Beverage Control became concerned about adult entertainment in places which it licensed, including bars. Hearings were conducted by the Department at which time it received testimony about conduct in liquor establishments featuring topless and bottomless waitresses, dancers and other entertainers , and also films displaying sexual -� acts . The testimony presented at these hearings included: Prostitution occurring in and around the- licensed premises and involving some of the dancers ; customers were found engaging Council Member William L. wilson Page Five September 14, 1987 in oral copulation with women entertainers; customers engaged in public masturbation; customers were placing rolled currency either directly into the vagina of a female entertainer or on the bar in order that she might pick it up herself; indecent exposure to young girls ; attempted rape and rape itself; and assaults on police officers which took place on or immediately adjacent to the licensed premises. As a result of these hearings the Department adopted regulations , that prohibited sexual activities on 'the liquor licensed premises. � These regulations prohibited: (a) performances of acts or � simulated acts of sexual intercourse, masturbation, sodomy,_ bestiality, oral copulation, flagellation or any sexual act prohibited by law; (b) the actual or simulated touching, caressing or fondling of the breast, buttocks, anus or genitals; (c) the actual or simulated displaying of the pubic hair� anus, ' vulva or genitals; (d) a licensee Fermitting any person to remain in or upon the licensed premises who exposes to public __ view any portion of his or her genitals or anus, and (e) the displaying of films or pictures depicting any of these activities. These regulations were then challenged by liquor licensees claiming that they violated their First and Fourteenth Amendment rights. The regulations were upheld by the United States Supreme Court, ruling that even though some of the activities might be constitutionally protected rights of expression, the states� authority to regulate the sale of liquor gave more flexibility to these states. The Court stated that the Twenty-first Amendment to the Constitution, which repealed prohibition, gave broad and express powers to- the states to regulate liquor sales , - and that these state restrictions might otherwise infringe upon protected First Amendment rights. The Supreme Cour� reviewed .the problems which were presented to the Department at the hearings � and found that there was a proper governmental interest that was within the state' s police power, and that these regulations �rere deemed by the Department as necessary for the protection of the public peace, health and safety. In upholding the state ' s authority to restrict sexual activity in bars , the Court emphasized the fact that the restrictions were limited to performances in places where liquor was to be sold, and not elsewhere. Because of the Twenty- � first Amendment the Court was willing to grant more discretion to the states in regulating means of speech and stated that in reviewing state action the Court �would give more preference to the legislative body' s determinations. . . �;f� _ �� ,� Council Member William L. Wilson Page Six September 14, 1987 The city of Fairmont, Minnesota, adopted an ordinance similar to that considered in LaRue, and because the restrictions applied to places other than liquor establishments the Minnesota Supreme Court held that the ordinance violated the federal and state � constitutional provisions protecting a citizen' s right to freedom of speech. In Koppinger v. Fairmont, 248 N.W.2d 708 (1976) , the Minnesota Supreme Court held that the Fairmont ordinance was too broad in its scope because it banned nudity in all licensed establishments � not just bars, and therefore the case , was distinguished from LaRue, supra. However, the Court recog- " nized that if the ordinance were limited to bars only, that under the decision in LaRue it would be upheld against consti- tutional challenges. �. An ordinance similar to that in Fairmont was held to violate the First amendment because it regulated nude dancing in all public places , not just in bars. In Doran v. Salem Inn, Inc. , 45 L. Ed. 2d 648 (1975) , the United States Supreme Court over- turned such an ordinance because it banned all nude dancing in public places, not just in bars , and ruled that the ordinance was therefore . "overly broad" to withstand a constitutional challenge. In Doran, nude dancing as a form of speech or ex- pression would be banned in all public places whether or not the dance was obscene, and therefore the ordinance was "over- broad" and unconstitutional . Following the 1972 decision in LaRue, su ra, both state and federal courts have upheld similar laws prohibiting nude dancing and other sexual conduct in liquor establishments against -- - - - challenges _of violations of the First and_ Fourteenth amendments: - Paladindo v. City of Omaha, 471 F. 2d 812 (8th Cir. 1972) ; . Crownover v. Musick, 509 P. 2d 497 (Cal . 1972) ; Seattle v. Hinkley, 517 P. 2d 592 (Wash. 1973) ; Boston Licensing v. Alcoholic Beverages , 328- N.E.2d 848 (Mass. 1975) ; Longbridge Inves�ment . , � Co. v. Moore, 533 P. 2d 564 . (Ariz. 1975) ; Richter v. Dept. -- of Alcoholic - Bev. Control , 559 F. 2d 1168 (9th Cir. 1977 , . cert. denied, 434 U.S. 1046 (1978) ; Blatnick Co. v: • Ketola, " 587 F. 2d 379 (8th Cir. Minn. 1978) ; Gabriel v. Old Orchard • • Beach, 390 A. 2d 1065 (Me. 1978) ; Theresa Enterprises, Inc. v. Davis , 146 Cal. Rptr. 802 (1978) ; Three K. C. v. Richter, 279 N.W. 2d 268 (Iowa 1979) ; New York State Authority v. Bellanca, 69 L. Ed. 2d 357 (1981 ) ; Noll v. Boca, 626 P. 2d 1280 (New Mex. 1981 ) ; Kev. , Inc. v. Kitsap County, 793 F. 2d 1053 (9th Cir. 1986) ; and City of Newport v. Iacobucci , 93 L. Ed. 2d 334 (1986) . Ordinances which banned nude dancing in places other than bars and which �were held to be unconstitutionally over-broad include: Council Member William L. Wilson Page Seven September 14, 1987 Salem Inn, Inc. v. Frank, 381 F. Supp. 859 , affd. 522 F. 2d 1045 (1975) ; Talbert v. Memphis, 568 F. Supp. 1285 (Tenn. 1983) ; and BSA, Inc. v. King County, 804 F.2d 1104 (9th Cir. 1986) . Twice more since LaRue , supra, the Supreme Court has upheld prohibitions of nude dancing in bars re-emphasizing its earlier determination that the states and its municipalities have broad powers and discretion in banning nude dancing under their liquor regulatory authority. In New York State Authority v. Bellanca, . supra, the Court stated that the decision to ban nude dancing . in bars was a legislative decision and not a decision for the � courts. Although the state agency did not express- legislative findings of purpose, the minutes of their proceedings contained a statement of policy, which was: . Nudity is the kind of conduct that is a proper subject ' - for legislative action as well as regulation by the State Liquor Authority as a phase of liquor licensing. _ . It has long been held that sexual acts and performances may constitute disorderly behavior within the meaning of the Alcoholic Beverage Control Law. Common sense indicates that any form of nudity coupled with alcohol in a public place begets undesirable be- havior. This legislation prohibitir.g nudity in public will once and for all , outlaw conduct which is quite out of hand. (69 L. Ed. 2d at 361) . The Court, in Bellanca, supra, upholds the state ' s discretion . to -outlaw nude dancing -in bars under-the -Twenty-first_ Amendment, saying that whatever artistic or communication value may attach to topless dancing is nvercome by the state' s exercise of its broad power under the Twenty-first Amendment. The most recent decision of the Supreme Court was made after - a review of the lower court' s decision and without- oral argu- ments, reiterating its previous decisions and upholding a city ordinance prohibiting nude and nearly nude dancing in bars. In City of Newport v. Iacobucci , supra, the city ordinance contained a preamble statement that contained a legislative finding that nude dancing in liquor establishments was inurious to the citizens of the city, and that the purpose of the legis- � lation was to prevent blight and the deterioration of the city' s neighborhoods as well as decreasing the incidence of crime , disorderly conduct and juvenile delinquency. These findings were sufficient for the Supreme Court to conclude that there , was a rational basis between the governmental interest and � the manner in which it chose to accomplish that interest. Council Member William L. Wilson Page Eight September 14, 1987 STATE CONSTITUTION . It has been suggested that although the proposed ordinance amendments may not violate the Federal Constitution, that it � would violate the State Constitution. Article I , section 3, of the Minnesota State Constitution is similar to the First Amendment. The liberty of the press shall forever remain . inviolate, and all persons may freely speak, . . write and publish their sentiments on all - subjects , being responsible for the abuse of such right. ` Our examination of Minnesota court decisions does not disclose any decision interpreting the State Constitution and its appli- cation to a municipal ordinance prohibiting nude dancing in bars. However, in Koppinger, supra, the City of Fairmont ordi- nance banning nude dancing in any licensed establishment was challenged as violation of both the First Amendment and Article I , section 3 , . of the Minnesota State Constitution. Although the State Supreme Court ruled that because the ordinance regulated � nude dancing in licensed establishments other than bars and � thus was over-broad in violation of both the Federal and State Cons}itutions , the Court recognized that if the ordinance were limited to only bars that the ordinance would not violate the . constitutions. The State Supreme Court distinguished this ordinance from that considered in LaRue , supra, and made the following statement in its opinion: - "From LaRue, it is clear that the state authorities � . could promulgate regulations governing nude dancing in plaintiff' s and other bars and could revoke _ plaintiff' s license for violation of such regulations. •. . � It seems clear also that a state by a penal statute or a municipality by a penal -ordinance can proscribe . the same kind of activity. (citing cases) . There- ' • - fore, plaintiff' s offering of topless and bottomless • � entertainment could be the subject of a narrowly drafted ordinance. ***" (248 N.W. 2d at 713) . The Court examined the ordinance as a time, place and manner restriction of free speech, applying a test similar to that applied by the U. S. Supreme Court (Renton v. Playtime Theatres , Inc . , 89 L. Ed. 2d 29 (1986) . The ordinance was held to violate the guarantees of freedam of speech contained in the Federal and State Constitutions because it regulated the content of speech (nude dancing) in places other than bars. We don' t know what the Court would have ruled regarding the application ��'_ ,�a � Council Member William L. Wilson Page Nine September 14, 1987 of the State Constitution to a broad prohibition of nude dancing only in bars because that was not the issue before the Court when it considered the Fairmont ordinance. However, it is arguable that the Court would have upheld such a broad prohi- bition as a reasonable exercise of the State ' s police power in the regulation of liquor establishments recognizing, as the United States Supreme Court has consistently done, that the problems associated with the sale or consumption of liquor poses greater threats to the safety and welfare of the community. However, until the issue has been presented to our state courts, ' the •issue remains open to disagreement and the City Council � should be aware that an argument exists questioning the legality of such an action in light of the state constitution. We suggest� that the Council consider all the reasons for the necessity of this legislation, and include such reasons in the record of its proceedings. . CONCLUSION State and local regulations which prohibit nude dancing in bars have been upheld by both federal and state courts as not violating free speech guarantees of the federal Constitution when the reasons for such legislation are articulated in the deliberations of the legislative body and the restrictions are limited to liquor establishments. Although no state court decision has compared the Minnesota Constitution to such a ban on nude dancing in bars, other than in Koppinger, su ra, such a provision may be upheld under the same or similar rationale as that expressed in LaRue and other federal and state decisions. _ _ - - T II. Your second question is whether the entertainment license classi- fication ordinance allows nude dancing in bars. The entertain- ment ordinance , Chapter 411 of the Legislative Code , was amended _ in 1986 so as to establish four classes of entertainment. - Class 1 is the most restrictive and permits music and singing by one performer or gro�p singing participated in by patrons. Classes 2 and 3 expand upon the type of music that can be provided and the number of performing singers, and class 3 also permits the playing of volleyball and broomball by patrons. Class 4 is the least restrictive classification and permits all activi- - ties allowed in classes 1 through 3, plus stage shows , skits, vaudeville, theater, contests and/or dancing by performers without limitation as to numbers. Therefore, class 4 entertain- ment license is the first classification which would permit dancing by performers . Council Member William L. Wilson Page Ten September 14, 1987 The ordinance adopted in 1986 (C.F. 86-1537, ordinance No. 17434) , in addition to creating the classification system referred to above, also established a license fee schedule and specified what information was to be provided with a license application. Chapter 411 (Entertainment License) , as amended, does not mention nude dancing anywhere in the ordinance. Chapter 411 prior to the 1986 amendment did not state that nude dancing was per- mitted, and the Chapter has not been amended to state that nude dancing would be permitted as a part of the entertainment ' license. Chapter 411 , by its own terms, requires the issuance of an • entertainment license only in bars licensed by the City for the sale of intoxicating liquor or non-intoxicating malt liquor pursuant to Chapters 409 and 410. Chapters 409 and 410 prohibit nude dancing on the premises, as- explained in the-- first- part of this opinion, and therefore anyone possessing both a license to sell liquor and an entertain- ment license may not permit performers to dance in the nude. Although section 411 . 02, in defining the type of entertainment permitted with a class 4 license, would permit "dancing by � performers without limitation as to numbers , including patron participation" , the ordinance does not contain an exception to the express prohibition of nude dancing in bars contained in sections 409. 09 and 410.05. ' CONCLUSION - - - - - - - - - - Based •on- the foregoing express prohibiti�n of- nude dancing contained in sections 409.09 and 410.05, it is our opinion � ' that nude dancing is not permitted in bars under the provisions of the entertainment license ordinance , chapter 411 , as amended.. _ _ III.. _ _ - , ' , Your last question is for advice as to what constitutes• the . licensed premises of a liquor establishment. The effective � area of � the licensed premises is defined in section 409.06, subdivision 5, as constituting the "compact and contiguous space named in the license and for which the same was granted except that an 'on sale ' license granted for sales in the dining room of any hotel may permit sales of liquor with meals in additional dining rooms open to the public and specified in the license" .- - , _ , Council Member William L. Wilson Page Eleven September 14, 1987 This provision defines the premises of the license to be the compact and contiguous space named in the license. The sub- � division further requires that the license shall specify the areas in which liquor sales will be permitted. Applicants are required to specify in their application the areas in which they propose to sell liquor, including a floor plan of the area. (Section 409.06 , subd. 1) . Pursuant to section 409.06, subd. 5(2) , the Council may designate . as a part of the licensed premises a portion of the outside area adjacent and contiguous with the licensed structure for the seasonal sale of liquor. - • For the purpose of establishing an off-street parking requirement for on-sale premises, the Council has defined the parking require- ments in relation to the amount of "patron area" on the premises. Section 409.08(11) establishes parking �requirements for on-sale premises, and the required parking is _ based upon the amount _ _ _ - - of square feet of patron area provided on the licensed premises, thus showing an intent to base the need for off-street parking on just a portion of the licensed premises. "Patron area" is defined in that section of the Code as to include all areas used by the public , excluding areas used exclusively for work, storage or office space. CONCLUSION Based on the foregoing, it is our opinin that as a general rule, the licensed premise of a liquor establishment includes the entire structure or portiori _ of the structure occupied by _ __ the licensee and which is to be included within the Council approved licensed area. This would include the _ patron area, _ - the common areas, restroom facilities , storage and kitchen facilities. Howeuer, for the purpose of determining off-street parking requirements for on-sale establishments, the relevant area of the establishment is limited to the "patron area" only.� - Y s tru , � E WARD P. STARR C ' Attorn - A�OME J. L � istant ity Attorney . �PS:JJS :cg __ cc: Mayor Council Members City Clerk + 1syr.�,� . .. _ .:�� .�.� �` �� s`��TT �. CITY OF SAINT PAUL ��. �?� �; ��, OFFICE OF 7HE CITY ATTORNEY ';� iiii�i'ii ii �' �; m _ EDWARD P. STARR, CITY ATTORNEY ��''�r�,;�°' ,��°`�` 647 City Hall, Saint Paul, Minnesota 55102 612-298-5121 GEORGE LATIMER MAYOR May 6 , 1988 Ms . Carol Grant Administrative Law Judge 2404 Stevens Avenue South Minneapolis , MN. 55404 RE : In re The Belmont Club licenses Dear Judge Grant : Pursuant to Minnesota Rules , part 1400. 7000 , I hereby request the issuance to me of two subpoenas as follows : l . Ms . Tarah Monn Juvenile Detention Center 480 St. Peter Street Saint Paul , MN. 55102 2 . Ms . Linda Monn 1047 East Fourth Street Saint Paul , MN. 55106 The first witn.ess is the person who was allegedly employed by the licenseholder to perform dances in the licensed premises in violation of law; the second witness is the mother of the first witness . Testimony sought from each will relate to the age of the dancer; and from the first the nature and circumstances of her employment . Attendance of each is sought for the hearing on this matter on May 24, 1988 at 9 : 30 a.m. or as soon thereafter as the witnesses may be heard. The place is the same as for the hearing, the fourth floor conference room or auditorium at the Saint Paul Public Library main branch, 90 West Fourth Street , Saint Paul . Thank you for your courtesy. Very truly yours , ' �� PHILIP . BYRNE Assistant City Attorney I j • �, �;;� ;�� 2 0198 \� ,:��u_ou° �j� , • - .�wl \ �*' '1 STAT E O F M I N N ESOTA OFFICE OF ADMINISTRATIVE HEARINGS FIFTH FLOOR,FLOUR EXCHANGE BUILDING 310 FOURTH AVENUE SOUTH MINNEAPOLIS,MINNESOTA 55415 (812)341•7600 May 19, 1988 Philip B. Byrne Assistant City Attorney 647 City Hall St. Paul, Minnesota 55102 Re: The Belmont Club Licenses Dear Mr. Byrne: As requested in your letter of May 6, 1988, enclosed are subpoenas for Ms. Tarah Monn and Ms. Linda Monn to appear at the hearing in the above-referenced matter on May 24. Sincerely, ��'c�-,��'- `-��?�9-�- �"�� CAROL GRANT Administrative Law Judge Telephone: 612/871-9004 sh Enc. AN EQUAL OPPORTUNITY EMPLOYER ��.:°"...� 9rATE OF MIL�O►PA QFFI(� QF ADNIINISTRATIVE � �� '' H�tll� St)BPOII� Tp Ms. Tarah Monn, Juvenile Detention Center. 480 St= pptp*' - Street St. P GRE�TINGS: yW ARE F�y OON�IDID to lay aside all yaur business arid excuses ar�d t° appear before Carol Grant, Administrative Law Judqe of the Office of Aclministrative Hearings of the State of Minnesota at _ Auditorium, St. Paul Public Library Main Branch, 90 West Fourth Street in the City of St Pdu . _� Ramcp� �� s: Minnesota, on the 2 4 th day of May • 19 8 8 at 9 :30 o'clock in tYie fore �. to appear as a witness in the matter of the Belmont Club Licenses y� p� � p�t�IDID to bring arid have� with you. to be used as evidence in the hearing, if required, the follawing: Pursuant to the authority granted in Minn• Stat. § 14.51, Witness, tY� Honorable Duane R. Harves, Chief Administrative Law Judge, at Minneapolis, Minnesota, this 19th �y of P'IaY 1988 • DU R. HARVF'�S Chief Administrative Law Judg e 612/341-7600 HG-00061-01 �� "' �� 3PATE OF NII�A OF'FI(� OF ADMINISrRATIVE I�ARINGS �� .. ' . I�ARII�G SUBFOII�► Tp Ms. Linda Monn, 1047 .East Fourth Street, St. Paul, Minnesota 55106 GREETINGS: YOU ARE I�RF.:�Y O�NDID to lay aside all your business arid excuses arid to appear before Carol Grant, Administrative Law Judge of the Office of Administrative Hearings of the State of Minne�ota at Auditorium, St. Paul Public Library Main Branch, 90 West Fourth Street in the City of St. Paul , , Ramsey County, Minnesota, on the 2 4 th day of May , 19 8 8 °' at 9 :30 o'clock in the �fore noon, to appear as a witness in the matter of the Belmont Club Licenses YOU ARE FURTE�R OCNII+�iNDID to bring and have� with you, to be used as evidence in tYtie ]zearing, if required, the following: Pursuant to the authority granted in Minn. Stat. § 14.51, Witness, the Honorable Duane R. Harves, Chief Administrative Law Judge, at Minneapolis, Minnesota, this 19th �y of MaX , 19 8 s . DUANE R. I�+►RVES C7iief Administrative Law Judge 612/341-7600 HG-00061-01 ��r ( �� LAW OFFICES Ii:ITRZN[AN, GRANT, 1�[AN1��iAN, BI,UTH & B1��RT�FR A PARTNERSHIP OF PROFESSIONAL CORPORATIONS R�„i 2�04 Stevens Avenue South �V� Minneapolis, Minnesota 55��4 (61�)871-900� MAY �g �� Marc G. Kurzman � Carol Grant James��an Linda M. Oja1a Joseph P. Bluth James E. Moon Ann B. Ba.rker (507)387-5661 May 18, 1988 George Beck Office of Administrative Hearings Fifth Floor Flour Exchange Building 310 Fourth Avenue South Minneapolis, MN 55415 Re: In Re The Belmont Club licenses De�r George: Enclosed is a copy of a subpoena request received in the above-referenced matter. This appears reasonable. Sincerely, C.�c�'��'��G�, Carol Grant CG/tw enc. Attorneys admitted to practice in Florida, Minnesota and New York /l �� ' J `, �f 1 �`/�/ ' /^� . X f�..�� '� � ♦� � N�A � U 1 J �J� �.,., � DANCER AGREEMENT This contract is made by and between ��C��G /��s��S - ) �� i , a Minnesota corporation, hereinafter referred to as the "Company" and�� residing at _ ��7 �'}'� � /�" �� ' r,\, Social Security No. �� -�� hereinafter referred o_�as�Dancer" . The above parties agree as follows : l. Effective Date. This contract shall take effect on� /d� — / , 19 �: 2. Engagement. Dancer is hereby engaged on an exclusive basis (as herein defined ) to perform exotic dancing as an independent representative of the Company at various bars and drinking establishments which have contracted with the Company for such services. 3. Independent Contractor. It.,is the intent of the parties that the Dancer is, and shall be an independent contractor. Nothing herein contained nor any of the acts of the Dancer pursuant hereto shall be construed as creating the relationship , of employer and employee. ' Dancer shall be free to exercise her own judgment as to costuming, exotic dance routines, and music used as limited by applicable laws and ordinances. Dancer agrees to pay her own Federal Income Taxes, Minnesota Income Taxes, Social Security Taxes (FICA) , Workers ' Compensation Insurance Premiums, anc] any �es��r�� ;�- ��,e a �'a`�"b� � . � • and all other items of payroll tax. Dancer agrees that for purposes of Section 3401 of the Internal Revenue Code and like provisions of state law, that she is an independent contractor and not an employee of the Company, and, therefore, the Company is not liable for FICA, workers' compensation coverage of any payroll tax reporting. Further, Dancer indemnifies and holds the Company harmless from and to any liability for payroll taxes or workers ' compensation claims. 4 . Insurance. Dancer agrees to provide her own healt}�, liability and workers' compensation insurance at her own cost . Further, to ensure that each dancer has adequate worker ' s compensation insurance coverage, the Company shall deduct ��/ from each dancer' s hourly rate and deposit that in an escrow account. That money .shall be used to pay workers ' compensation insurance premiums for each individual dancer. Proof of tt�at insurance coverage shall be provided to each dancer upon request. 5. Compliance with Law. Dancer represents that she has read and understands the ordinances governing exotic danciny . Further Dancer agrees to abide by such ordinance and all laws in perfaorming this contract. 6. Consideration. Company agrees to pay Dancer for )�er performances in accordance with the Schedule attached hereto as �F ��'i Exhibit "A". Dancer shall pay all expenses incurred by her in the performance of this contract. . 2 7. Responsibilities of Dancer. a. Dancer shall abide by all applicable laws, statutes, ordinances and regulations governing exotic dancing as well as. the reasonable, lawful regulation and opera.ting rules of the• establishment where she performs. b. Dancer shall not be tardy for performances, use � profanity or abusive language during the engagement, commit any felony, perform while drunk or under the influence of drugs, or subject the Company to excessive cancellations without adequate notice. c. Dancer shall conduct herself in a courteous and businesslike manner and take no action which would adversely affect the business of the Company and establishment where she performs. 8. No Authoritv to Bind. Dancer shall have no authority to bind or obligate the Company on any debt, liability or promise. 9. Exclusivity. Dancer agrees not to perform exotic dancing for any establishments within the City of St . Paul 1 . except those establishments of Company listed on Exhib tl `"B" . 10. Termination. This contract may be terminated by either pa'rty upon one week' s written notice, provided , however , that Company can terminate this Agreement immediately upon knowledge of Dancer' s breach of the provisions of either Paragraphs 7 (b) or 9 of this Agreement either orally or in writing. 11. Miscellaneous. It is agreed that: 3 a. Release. Except as herein provided, this Contract terminates and supercedes any and all prior agreements, between the parties. b. Waiver. Failure of the Company to insist upon strict compliance with any of the provisions of this Contract or the rules of the establishments shall not be construed as a waiver of any such provisions or rules , but they shall continue to be in full force and effect. c. Oral Representation. No oral promises or representations . shall be binding, nor shall this Contract be modified except in writing , executed on behalf of the Dancer or Company by a duly authorized of f icer. � d. If any provision of this Contract or other applicable part thereto is held invalid, such invalidity shall not affect any other paragraph or subparagraphs of the . Contract which can be given effect without the invalid provision or paragraph, all provisions hereof being deemed severable. e. This contract shall be interpreted under the laws of tt�e � State of Minnesota. 4 The parties hereto have executed this Contract, as of i.ts effective date, and agree to be bound by all of its terms by signing below. EXECUTED BY THE DANCER: �.,�L.� �� L.� rint Na �� x At-:� � � � l�, '�� _ � on: � " �� Hy; i , � �' ' �� Its. � , . EXECUTED BY THE COMPANY: At: ' ��,c-c.%��) .aC � � .' �_- on: � ? ` 3 " ,, ,/ , ' BY� _ �,�- �. � Its: President � 5 ..r ,, , � . EXHIBIT A COMPENSATION SCHEDULE *A• MFL, Inc. d/b/a The Belmont Club �,�L Monday 13 hours (12 :00 p.m. to 1 : 00 a.m. ) @ $ �L -� /hour Tuesday 13 hours (12 :00 p.m. to 1 : 00 a.m. ) @ $ i /hour Wednesday 13 hours (12 :00 p.m. to 1 : 00 a.m. ) @ $ _ /hour Thursday 13 hours (12 :00 p.m. to 1 : 00 a.m. ) @ $ , /}�our Friday 13 hours (12:00 p.m. to 1 : 00 a.m. ) @ $ - /hour Saturday 13 hours (12 :00 p.m. to 1 : 00 a.m. ) @ $ � /hour Sunday (a) 6 hours (12:00 p.m,. to 6 : 00 p.m. ) @ $ ' /hour (b) 6 hours (6 :00 p.m. to 12 : 00 a.m. ) @ $ � /hour B. Rainbow 7, Inc. d/b/a Seventh Street Trolley Monday 13 hours (12:00 p.m. to 1 : 00 a.m. ) @ $�(��_/hour Tuesday 13 hours (12:00 p.m. to 1 : 00 a .m. ) @ $ /t�our Wednesday 13 hours (12: 00 p.m. to 1 : U0 a.m. ) (� $ � /},�,ui Thursday 13 hours (12 :00 p.m. to 1 : 00 a.m. ) @ $ /hour Friday 13 hours (12 :00 p.m. to 1 : 00 a.m. ) @ $ : /hour Saturday 10 hours ( 3 :00 p.m. to 1 : 00 a.m. ) (� $ /t�our Sunday 6 hours (6 :00 p.m. to 12 :U0 a .m. ) @ $ /t,our. *Excluding holidays or any days the establishments are closed. � 6 ' ' INTRODUCTION ' The Offense Summar Re ort lists offenses b rid for the ears Y P � Y g � Y 1980 through 1987. A grid, as shown on the inside cover of this ' report, is approximately a six square block area. There are 198 grids in the City of Saint Paul. Included are sections on total offenses, homicide, rape, robbery, aggravated assault, residential , burglary, commercial burglary, theft, motor vehicle theft, arson and vandalism. ' A system was devised which gives a quick comparison of grids for each offense type. For each offense type (except homicide, rape, and arson) grids were ranked from those having the greatest number of incidents, to those having the least number of incidents. Then � a cut-off point was established. The top twenty-five percent (approximately 50 grids) are indicated by a single asterisk and the bottom twenty-five percent are indicated by a double asterisk. ' In addition, the sections on total offenses, residential burglary, cortanercial burglary, theft, motor vehicle theft and vandalism include a rank of offenses by grid. Homicide, rape, robbery, , aggravated assault and arson were not ranked because the numbers for these offenses are too small to make meaningful comparisons. When using these numbers, there are a number of considerations ' that should be taken into account. For example, no attempt has been made to relate the number of offenses to the number of persons living (or targets existing) in that grid. In general , more densely ' populated areas will exhibit more crime. By the same token, those grids that comprise the central business district and commercial strips will tend to have high crime totals because of the influx of population into these areas. Other factors that can affect the t volume and type of crime may also include: variations in composi- tion of the population (particularly age structure), stability of population with respect to transient factors, economic conditions, ' attitudes of citizenry toward crime, crime reporting practices of citizenry and so on. The reader is, therefore, cautioned against using this data without keeping these factors in mind. , ' , � ' , � ' ' � ' OFFENSE SUT4IARY REPORT � 1 TABLE OF CONTENTS , Page ' Total. . . . . . . . . . . . . . . . . . . . 1 , Homicide. . . . . . . . . . . . . . . . . 5 Rape. . . . . . . . . . . . . . . . . . . . . 8 ' Robbery. . . . . . . . . . . . . . . . . .li Aggravated Assault. . . . . . .14 , Residential Burglary. . . . .17 ' Commercial Burglary. . . . . .21 Theft. . . . . . . . . . . . . . . . . . . .25 ' Motor Vehicle Theft. . . . . .29 Arson. . . . . . . . . . . . . . . . . . . .33 ' Vandalism. . . . . . . . . . . . . . . .36 , ' , ' ' ' TOTAL OFFENSES CITY-WIDE RANK OF GRIDS N = 19 ' No. of No. of No. of ' Grid Rank Offenses Grid Rank Offenses Grid Rank Offenses 1 162 53 73 36 269 144 92 126 2 119 95 74 20 367 145 92 126 , 5 157 58 75 34 281 146 66 161 6 157 58 76 32 285 147 46 226 7 165 46 77 97 124 148 44 227 8 155 59 7g 72 150 149 102 119 , 9 143 66 79 85 135 150 39 259 10 55 200 80 134 76 151 118 97 11 87 134 81 172 42 152 12 427 12 27 308 82 177 36 153 1 833 , 13 37 268 83 88 132 160 89 129 14 112 102 84 29 305 162 129 80 15 196 8 85 15 413 163 152 60 16 131 78 86 41 238 164 126 82 17 155 59 87 26 321 165 100 120 , 18 127 81 88 5 543 166 141 67 19 72 150 89 2 716 167 149 63 20 187 20 g0 18 383 168 122 88 21 177 36 91 50 211 169 105 113 ' 22 131 78 9Z 52 209 170 116 100 25 104 116 93 108 112 171 194 11 26 138 69 94 20 367 172 161 54 27 112 102 95 25 330 173 77 143 28 160 56 g� 99 121 174 124 87 ' 29 117 99 97 137 70 175 185 22 30 83 137 9g 95 125 180 110 107 31 131 78 99 174 39 182 124 87 32 56 189 100 152 60 183 173 40 , 33 59 176 101 177 36 184 122 � 88 34 51 210 102 146 64 185 127 $1 35 64 164 103 43 228 186 138 69 36 146 64 104 47 220 187 144 65 , 37 57 188 105 3 621 188 77 143 38 74 147 106 7 522 189 184 23 39 105 113 107 19 379 192 49 217 40 176 37 108 22 365 193 23 361 , 43 150 61 109 17 391 194 31 289 44 152 60 110 4 551 195 150 61 45 53 207 111 146 64 197 192 12 46 168 44 112 42 232 200 185 22 47 85 135 114 68 154 202 76 145 ' 48 67 159 115 30 297 203 54 202 49 83 137 116 111 104 204 141 67 50 47 220 117 64 164 205 197 7 51 62 170 11g 32 285 206 190 15 ' 52 168 44 119 35 272 207 165 46 53 40 253 120 24 338 210 190 15 54 8 515 122 8Z 138 211 105 113 55 28 306 123 79 142 212 114 101 ' 56 91 127 124 60 175 213 102 119 57 13 425 125 80 141 214 89 129 58 75 146 126 58 178 215 164 48 59 98 122 127 14 419 223 182 28 60 189 16 128 6 542 224 134 76 ' 61 109 108 129 9 477 225 192 12 62 120 90 130 44 227 226 180 35 63 92 126 131 11 452 230 38 254 64 69 153 132 10 458 240 174 39 , 65 95 125 133 16 393 242 159 57 06 144 65 136 187 20 243 183 26 67 71 151 137 195 9 244 163 52 68 80 141 138 121 89 245 63 166 , 69 170 43 139 170 43 246 129 80 70 61 173 140 167 45 249 138 69 71 69 153 142 114 101 269 181 33 72 134 76 143 100 120 280 198 3 1 1 Offenses: TOTAL , Grid 19F0 1981 19a2 1983 1934 1985 1986 1987 Grid �980 1981 1982 1983 1984 1985 1986 1987 , 1 63* 41* 45** 55** 45** 39* 34** 53** 43 99 47* 66 77 53** 55** 53** 61** 2 92 62* 83 79 73 114 73 95 44 66** 53* 45** 40** 47** 67 61** 60** ' 5 44* 38* 59** 50** 33** 56 47** 58** 45 127 109 92 83 93 189 173 207 6 71 61* 71 103 81 39* 56** 58** 46 16** 30* 19** >>** 15** 17** 10** 44** ' 7 35* 43* 42** 55** 40** 45* 46** 46** 47 132 104 123 127 98 120 113 135 8 62* 59* 63** g� 43** 57 63 59** 48 104 123 120 133 126 110 131 159 ' g 72 72 65** 69 59** 55* 49** 66 49 137 146 111 ��p 144 141 126 137 10 280* 209 177 166 141 173 160 200 50 236* 234* 221* �9p 181 170 195 220* , 11 147 127 131 102 121 120 119 134 51 199 187 199 126 163 167 146 170 �2 462* 449* 303* 239* 260* 246* 284* 308* 52 54** 70 46** 36** 38** 38** 63 44** �3 221 220* 167 190 212* 249* 275* 268* 53 256* 276* 247* 27�* 196* 2�0* 269* 253* ' �4 106 105 116 90 77 99 87 1�2 54 488* 485* 406* 476* 426* 413* 493* 515* �5 42* 19** 5** 10* 11** 11* 14** 8** 55 302* 345* 317* 351* 317* 314* 362* 306* , �6 58* 69 77 60* 71 73 68 78 56 141 163 174 135 138 140 137 127 17 61** 67 53** 56* 69 61 54** 59** 57 438* 476* 387* 304* 271* 381* 458* 425* ' 18 136 95 97 106 97 123 87 81 58 235* 217* 155 151 157 204 186 146 19 209 199 185 142 137 142 189 150 59 94 102 74 92 105 123 >» �22 ' 20 29** 2p** 35** 26* 12** 22* 16* 20** 6� 3Q** 22** 20** 28* 23** lg** 36** 16** 21 26** 23** 26** 33* 20** 20* 27* 36** 61 113 101 115 105 92 113 110 108 ' 22 101 76 90 91 51** 80 74 78 62 133 108 94 82 96 96 69 90 25 161 115 133 107 89 77 81 116 63 g0 99 89 56* 79 7P 75 126 ' 26 23** 38** 5U** 78 72 32* 24* 69 64 87 102 96 81 97 104 104 153 27 26** 42** 54** 76 $9 49* 56* 102 65 �26 124 120 109 106 142 110 125 , 28 66** 47** 38** 4 63 67 65 56** 66 68 67 60** 66 65 47* 82 65 29 143 139 126 103 85 153 119 99 67 156 162 158 112 136 153 165 151 30 160 141 173 160 153 161 129 137 68 73 98 66 54* 63 75 118 141 ' 31 113 69 88 96 153 67 92 78 ** 69 50** 84 84 46* 23** 41* 46** 43** 32 192 208 268* 198* 100 168 151 189 70 239* 197 205 184 214* 172 163 13 ' 33 127 121 156 135 144 172 192 176 71 221 205 249* 179 196* 181 187 153 34 167 205 173 198* 162 ZZ3* 226* 2�� 2 61** 62** 74 5 51** 79 54** 76 ' 35 145 136 127 103 133 105 105 164 73 191 224* 240* 268* 165 226* 216* 269* 36 46** 54** 50** 52*' 50** 59 40* 64 14 380* 445* 329* 389* 372* 342* 442* 367* ' 37 131 205 160 162 175 179 180 188 75 278* 271* 232* 237* 273* 243* 05* 281* 38 177 165 166 175 174 124 133 �4� 76 206 193 199 233* 2��* 234* 245* 285* ' 39 133 135 133 100 114 8z 117 >>3 77 77 107 93 94 125 116 117 124 40 47** 53** 36** 26 29* 32* 29* 37** 78 125 99 113 138 143 108 115 150 ' 2 ' Offenses: TOTAL ' Grid 1°80 1°81 1982 1983 1984 1985 1986 1987 6rid 1980 1981 1?32 1983 1984 1985 1986 19E7 79 170 143 152 145 159 128 152 135 116 68 79 84 7II 75 65 80 104 , gp 114 73 103 77 97 52** 74 76 117 147 174 156 1f,3 178 160 213* 164 81 38** 42** 28** 35** 17** 37** 35** 42** 118 237* 293* 272* 337* 334* 325* 371* 285* , g2 33** 27** 27** 22** 33** 35** 38** 36** 119 302* 428* 356* 368* 352* 369* 453* 27Z* g3 92 96 114 88 86 115 171 132 120 239* 255* 265* 235* 253* 223* 378* 338* g4 249* 221* 268* 165 180 237* 227* 305* 122 157 151 187 104 139 123 131 13$ , 85 386* 373* 380* 302* 301 331* 318* 413* 123 160 156 220 129 116 158 113 142 86 238* 261* 172 214* 199* 223* 261* 238* 124 252* 250* 257* 21'3* 175 198 200 15 ' 87 307* 308* 299* 334* 291* 337* 336* 321* 125 166 160 195 172 153 144 166 141 88 494* 526* 556* 516* 512* 577* 636* 543* 126 289* 312* 381* 321* 243* 22p* p3g* 178 ' 89 597* 608* 621* 487* 524* 634* 744* 716* 127 532* 576* 667* 599* 521* 486* 559* 419* gp 368* 361* 475* 347* 381* 371* 378* 383* 128 658* 809* 767* 605* 485* 550* 671* 542* ' 91 224 217* 238* 203* 174 203 188 211 129 571* 641* 777* 604* 508* 524* 519* 477* 92 347* 330* 271* 220* 194 188 186 209 130 200 240* 278* 211* 194* p59* 202* 227* ' 93 151 132 110 133 164 110 111 112 131 420* 352* 402* 422* 377* 303* 380* 452* 94 344* 398* 341* 263* Z90* 342* 369* 367* 132 275* 468* 484* 385* 435* 535* 450* 458* ' 95 301* 308* 301* 229* Z��* z95* 357* 330* 133 293* 268* 273* 239* 299* 296* 372* 393* 96 99 110 94 81 84 129 132 121 136 25** 17** 26** 23** 22** 29** 11** 20* 97 56* 46** 47** 41** 45** 48* 61** 70 137 15** 10** 18** g** 18** �6** 10** 9** , 98 97 99 90 95 8� 100 97 125 138 76 94 80 65 66 gp 85 89 99 67* 52** 43** q6** 27** 57 54** 3g* 139 73 75 69 43** 46** 48** 51** 43** ' 100 47* 51** 4g** q6** 52** 46* 62** 60** 140 73 79 74 51** 72 69 68 45** 101 47* 38** 35** 27** 2g** 34�* 39** 36** 142 101 108 120 118 66 88 73 101 ' • 102 79 85 83 71 81 72 85 64 143 149 162 137 152 93 104 96 120 103 248* 292* 237* 179 207* 163 187 228* 144 222 169 154 159 137 145 126 126 , 104 338* 336* 321* 196* 188 230* 266* 220* 145 183 157 197 183 112 109 155 �26 105 641* 667* 468* 350* 449* 458* 639* 621* 146 163 145 189 170 215* 167 140 161 ' 106 403* 471* 787* 702* 874* 804* 637* 522* 147 354* 275* 292* 339* 337* 255* 266* 226* 107 457* 503* 477* 365* 335* 297* 488* 379* 148 209 255* 334* 378* 317* 2g7* 2g2* 227* ' 108 387* 372* 365* 327* 281* 283* 360* 365* �q9 123 119 146 124 132 g0 95 119 109 405* 439* 475* 306* 299* 334* 398* 391* 15p 244* 237* 275* 260* 283* 2p4* 250* 259* ' 110 495* 476* 681* 498* 550* 449* 486* 551* �51 78 75 109 90 113 g6 90 91 111 54* 59** 56** 60** 76 55* 46** 64 152 398* 404* h14* 411* 472* 496* 367* 427* 112 209 214 198 180 233* 207* 236* 232* 153 751* 742* 684* 562* 727* 806* 862* 833* ' 114 180 156 129 156 127 166 149 154 160 147 156 136 119 120 137 130* 129 115 288* 252* 252* 243* 218* 268* 267* 297* 162 73 94 71 89 66 42** 48* 80 , 3 Offenses: TOTAL ' Grid 1980 1981 1982 1933 1984 1935 1986 19a7 Grid 1980 1981 1982 1933 1984 1985 1986 1987 , 163 97 89 142 154 80 86 75 60** 212 128 130 136 116 106 108 122 101 164 140 122 132 176 87 83 83 82 213 105 128 •142 148 130 134 101 119 ' 165 176 168 145 135 111 110 129 120 214 177 165 162 169 139 121 141 129 166 92 100 125 83 92 96 103 67 215 61** 60** 54** 66 94 gl 72 48** ' 167 75 54** 59** 67 71 51** 69 63 223 64** 48** 45** 27* 28** 40** 36** 28** 168 90 103 102 93 91 80 90 88 224 120 99 68 • 70 68 76 74 76 ' 169 89 91 90 101 85 116 112 113 225 16** lq** 9** 7* g** 5** �** �2** 170 76 80 56** 101 68 78 94 100 226 28** 52** 38** 19* 28** 19** 30** 35** ' 171 18** 25** 17** 36** lg** g** g** 11** 230 268* 298* 312* 237* 296* 259* 237* 254* ** ** ** ** ** ** ** 240 19** 33** 15** 20* 31** 2$** 3�** 3g** 172 43 39 41 60 52 51 65 54 ' 173 127 136 142 130 141 141 138 143 242 55** 51** 45** 46* 33** 48** 54** 57** 174 115 95 90 71 93 103 99 87 243 19** g** 14** 19* 11** 27** 26** 26** 175 18** 12** 14** 15** q** 14** lg** 22** 244 56** 39** 30** 32* 53** 53** 70 52** ' 180 75 45** 52** 68 43** 56 79 107 245 178 201 168 135 117 156 �62 166 182 104 83 81 100 79 43** 102 87 246 112 99 97 105 53** 73 66 80 ' 183 64** 58** 66 64 32** 37** 33** 40** 249 64** 76 53** 56* 71 49* 56** 69 184 95 71 98 141 63 74 63 88 *** 269 - - - - 24** 27* 42** 33** , 185 77 82 68 103 75 91 83 81 280 2** 6** 6** l.p* 3** 4** 3** 3** 186 114 93 89 102 70 65 64 69 TOTAL 32792 33059 32971 29907 29218 30050 31820 31791 . ' 187 103 70 84 88 71 83 80 65 *In the top 25q. 188 153 143 128 133 147 145 >>g 143 , **In t�e bottom 25�. 189 23** 22** 22** 21** 12* 19** �7** 23** . ***Grid 69 o�as split in 1984 to form Grids 69 and 269. � 192 238* 190 184 206* 208* 230* 214* 217* ' 193 333* 333* 323* 295* 325* 306* 350* 361* 194 2gg* 333* 276* 269* 306* 286* 240* 289* 195 51** 67 32** 40** 46* 43** 45** 61** , 197 45** qp** 18** 27** 11* 15** �g** �Z** 200 ii** 14** 11** 13** 12* 12** �9** 22** ' 202 183 177 197 140 128 124 118 145 203 248* 193 169 182 147 157 169 202 , 204 133 117 97 57** 50* 75 65 67 205 17** 13** 14** lE** 7** ��** 6** 7** ' 206 24** 31** 23** 28** 17* 12** 21** 15** 201 100 88 72 61 82 37** 55** 46** , 210 12** 31** 19** 24** 26* 24** 29** 15** 211 193 152 151 100 133 98 135 113 ' 4 ' Offenses: HOt4ICIDE ' Grid 1980 1981 1982 1983 1984 1985 1985 1987 Grid 1980 1981 1982 1983 198�� 1985 1986 1987 1 0 0 0 0 0 0 0 0 43 0 0 0 0 0 0 0 0 ' 2 0 0 0 0 0 0 0 0 44 0 0 0 0 0 0 0 0 5 0 0 0 0 0 0 0 0 45 0 0 0 0 0 0 0 0 , 6 0 0 0 0 0 0 0 0 46 0 0 0 0 0 0 0 0 7 0 0 0 0 0 0 0 0 47 0 0 0 0 0 0 0 0 , 8 0 0 0 0 0 0 0 0 48 0 0 0 U 0 0 0 0 9 0 0 0 0 0 0 0 0 49 0 0 0 Q 0 0 0 1 10 0 0 0 0 0 0 0 0 50 0 0 0 0 0 0 1 0 , 11 0 0 0 0 0 0 0 0 51 1 0 0 0 1 0 0 0 12 0 0 0 1 0 1 0 1 52 0 0 0 0 0 0 0 0 , 13 0 3 0 0 0 0 0 0 53 1 0 0 0 0 0 0 0 14 0 0 1 0 0 0 0 0 54 0 0 0 0 0 0 0 1 ' 15 0 0 0 0 0 0 0 0 55 0 0 1 0 0 0 0 0 16 0 0 0 0 0 0 0 0 56 0 0 0 0 0 0 0 1 ' 17 0 0 0 0 0 0 0 0 57 0 0 0 0 0 0 0 0 18 0 0 0 0 0 0 0 0 58 0 0 0 0 0 1 C 0 ' 19 0 0 0 0 0 0 0 0 59 0 0 0 0 0 0 0 0 Zp 0 0 0 0 0 0 0 0 60 0 0 0 0 0 0 0 0 , 21 0 0 0 0 0 0 0 0 61 0 0 0 0 0 0 0 0 22 0 0 0 0 0 0 0 0 62 0 0 0 0 0 0 0 0 ' 25 0 0 0 0 0 0 0 0 63 0 2 0 0 0 0 0 � 26 0 0 0 0 0 0 0 0 64 0 0 0 0 0 0 0 � 27 0 0 0 0 0 0 0 0 65 0 0 0 0 0 0 0 � I28 0 0 0 0 0 0 0 0 66 0 0 0 0 0 0 0 � 29 0 0 0 0 0 0 0 0 67 0 0 0 0 0 0 0 0 ' 30 0 0 0 0 0 0 0 0 68 0 0 0 0 0 0 0 � 31 0 0 0 0 0 0 0 0 *** 69 0 0 0 0 0 0 0 � ' 32 0 0 0 0 0 0 0 0 70 0 0 0 0 0 0 1 � 33 0 0 0 0 0 0 0 0 71 0 0 0 0 0 0 0 0 ' 34 0 0 0 0 0 0 0 0 �Z a 0 0 0 0 0 0 � 35 0 1 0 0 0 0 � 0 73 0 0 0 0 0 0 p 0 ' 36 0 0 0 0 0 0 0 0 74 0 0 1 0 0 0 0 � 37 0 0 0 0 0 0 0 0 75 0 1 0 0 � 0 0 � ' 38 0 0 0 0 0 1 0 0 76 0 0 0 0 0 0 0 � 39 0 0 0 0 0 0 0 0 77 0 0 0 0 0 0 0 � 40 0 0 0 0 0 0 0 0 78 0 0 0 0 0 0 0 � ' 5 Offenses: HOMICIDE ' Grid 1980 1931 1982 1983 1984 1985 1986 1987 6rid 1980 1981 1982 1983 1984 1985 1986 1987 ' 79 0 0 0 0 0 0 0 � 116 0 0 0 0 0 0 0 0 80 0 0 0 0 0 0 0 0 117 0 0 0 p 0 0 0 0 ' 81 0 0 0 0 0 0 0 0 118 0 0 0 0 0 0 0 0 82 0 0 0 0 0 0 0 0 119 0 0 0 0 0 0 0 0 ' 83 0 0 0 0 0 0 0 0 120 0 0 0 p 0 0 0 0 84 0 0 0 0 0 0 0 0 122 0 0 0 p 0 0 0 0 ' 85 0 0 0 0 0 0 0 0 123 0 0 0 p 0 0 0 0 86 0 0 0 0 0 0 0 0 124 0 0 0 p 0 0 0 0 87 1 0 0 0 0 0 0 0 125 1 0 0 1 0 0 0 0 ' 88 0 0 0 0 1 0 0 0 126 0 0 0 p 0 0 0 0 89 1 0 0 0 1 0 1 1 127 0 0 1 � 1 1 � 0 ' 90 0 0 0 0 0 0 1 1 128 2 1 1 p 4 1 � 0 91 1 1 0 1 0 0 0 � 129 0 0 1 � 1 0 � 0 ' 92 0 1 0 0 2 0 0 0 130 0 0 0 1 0 0 0 1 93 1 0 0 1 0 0 0 0 131 0 0 0 p 0 0 p 0 ' 94 0 0 0 0 2 0 0 � 132 0 0 0 p 0 0 0 � 95 0 0 0 0 0 0 1 0 133 0 0 0 p 0 0 0 � , 96 0 0 0 0 0 0 0 � 136 0 0 1 p 0 0 0 0 97 1 0 0 0 0 0 0 0 137 0 0 0 p 0 0 0 � ' 98 0 0 0 0 0 0 0 0 138 0 0 1 p 0 0 p 0 99 0 0 0 0 0 0 0 0 139 0 0 0 p 0 0 0 0 ' 100 0 0 0 0 0 0 0 0 140 0 0 0 p 0 0 1 0 101 0 0 0 0 0 0 0 0 142 0 1 0 p 0 0 p 0 102 0 0 0 0 0 0 0 � 143 0 0 0 p 0 0 p 0 ' 103 0 0 0 0 0 1 0 0 144 0 0 0 p 0 0 p 0 104 0 0 0 0 0 0 0 0 145 0 0 0 p 0 0 p 0 ' 105 0 0 0 0 0 0 0 � 146 1 0 0 p 0 0 p 1 106 0 0 0 0 0 0 0 � 147 0 0 0 p 0 0 p 0 ' 107 0 0 0 1 0 1 0 2 148 0 1 0 p 0 0 p 0 108 0 0 0 0 1 0 0 � 149 1 0 0 p 0 0 p 0 ' 109 0 0 0 0 0 2 0 � 150 0 0 0 p 0 0 p 0 110 0 0 0 0 0 0 2 � 151 0 0 0 p 0 0 p 0 ' 111 0 0 0 0 0 0 0 � 152 0 0 0 p 0 0 p 0 112 0 0 0 0 0 0 1 0 153 0 0 0 p 0 2 p 0 ' 114 1 0 0 0 0 0 0 0 160 0 0 0 p 0 0 p 0 115 0 0 0 0 0 0 0 0 162 0 0 0 p 0 1 p 0 ' 6 ' Offenses: HOMICIDE ' Grid 198Q 1981 1982 1983 1984 . 1985 1936 1937 Grid 1980 1°81 1982 1983 1984 1985 1986 1987 163 0 0 0 0 0 0 0 0 2�2 0 0 0 0 0 0 0 0 ' 164 0 0 0 0 0 � 0 0 0 213 0 0 0 0 0 0 0 0 165 0 0 0 0 1 0 0 p 214 1 0 0 0 0 0 0 0 ' 166 0 0 0 0 0 2 p p 215 0 0 0 0 0 0 0 0 167 0 0 0 0 0 0 p p 223 0 0 0 0 0 0 0 0 ' 168 0 0 0 0 0 0 p p 224 0 0 0 0 0 0 0 0 �69 0 0 0 0 0 0 p p 225 0 0 0 0 0 0 0 0 170 0 0 0 0 0 0 p p i 226 0 0 0 0 0 0 0 0 ' �� 0 0 0 0 0 0 0 0 230 1 0 0 0 0 0 0 0 �72 0 0 0 0 0 0 p p 240 0 0 0 0 0 0 0 0 ' 173 0 0 0 0 0 0 p p 242 0 0 0 0 0 1 0 0 �74 0 0 0 0 0 0 0 0 243 0 0 0 0 0 0 0 0 , �75 0 0 0 0 0 0 p p 244 0 0 0 0 0 0 0 0 180 0 0 0 0 0 0 p p 245 0 0 0 0 0 0 0 0 ' �82 0 0 0 1 0 � 0 p � 0 246 0 0 0 0 0 0 0 0 �83 0 0 0 0 0 0 p p 249 0 1 0 0 0 0 0 0 �gq 0 0 0 0 0 � 0 ! 0 i 0 � *** 269 - - - - � 0 0 0 ' 185 1 0 � 0 1 � 0 � 0 p i C �I 280 0 0 0 0 0 0 0 0 �! ' 186 0 0 0 0 0 0 p ' 0 TOTAL 16 13 9 12 15 17 12 12 187 0 � 0 I 0 ! 0 0 � ^ � � ,^, `--;—��---` ***Grid 69 was split in 1984 to form Grids 69 and 269. �gg 0 0 1 0 0 � 0 p 0 � �gg 0 0 0 0 0 � 0 ' p 1 p i � 192 0 0 0 0 0 0 � 0 0 , 193 0 0 0 0 0 0 � p 0 194 0 0 0 0 0 1 p 0 ' 195 0 0 0 0 0 1 p 0 197 0 0 0 0 0 0 p 0 ' 200 0 0 0 0 0 0 p 0 202 0 0 0 0 0 0 p 0 , 203 0 0 0 0 0 0 p 0 204 0 0 0 0 0 0 p 0 ' 205 0 0 0 0 0 0 p 0 206 0 0 0 1 0 0 p 0 ' 207 0 0 0 0 0 0 p 0 210 0 0 0 1 0 0 p 0 211 0 0 0 0 0 0 p 0 , 7 �.�'� � �� .��a�-<.:.�. ' Offenses: RAPE ' 6rid 1980 1981 1982 1483 1984 1�85 198G 1987 Grid 1980 1qSl 1982 1983 19Sh 1985 1986 1987 � 0 0 0 1 1 0 0 0 43 1 0 0 0 0 0 0 0 ' p 0 0 0 0 0 0 0 1 44 0 1 0 0 0 0 � 0 5 0 0 0 2 4 0 0 1 45 2 3 5 1 0 0 3 0 ' 6 0 0 0 � � 0 0 0 46 0 0 0 0 0 0 � 0 7 0 0 0 0 � 0 0 0 47 1 1 1 Z 0 1 � 3 g 1 0 0 0 0 p 0 0 48 2 p 0 2 0 0 � 1 ' g 1 0 0 0 0 0 0 0 49 1 1 4 2 0 1 � 0 10 � � 0 1 2 1 3 1 50 0 2 1 � 1 0 2 3 ' �� 2 2 1 1 1 3 1 1 51 1 0 0 � 0 0 � 0 12 2 4 8 4 1 1 1 0 52 0 2 0 0 2 0 Z 0 ' �3 3 3 1 1 1 1 3 0 53 0 0 1 5 1 5 � 1 �q 0 1 0 0 0 2 0 0 54 1 3 0 4 1 8 3 3 ' 15 0 0 1 0 0 1 0 0 55 5 0 0 1 0 1 � 5 �6 p 2 2 1 3 1 2 1 56 2 � 2 0 0 1 3 1 , 17 0 0 0 0 0 0 0 1 57 0 1 1 1 1 3 3 5 18 � 0 0 0 0 0 2 2 58 � 0 1 1 1 0 � 1 ' �g 0 1 1 0 2 0 2 1 59 0 2 0 0 0 0 � 1 20 0 0 0 0 0 0 0 0 60 0 1 0 0 0 0 a 0 21 0 0 0 0 0 0 0 0 61 0 1 0 � 0 1 1 1 ' ZZ 0 0 0 0 0 2 p p 62 0 1 0 0 0 0 � 1 25 2 0 1 1 � 0 1 1 63 0 0 0 0 0 1 � 0 ' 26 0 1 2 0 2 1 2 0 64 1 0 Z 2 1 0 � 1 27 1 0 2 3 0 2 1 1 65 0 1 0 1 1 2 � 2 ' 28 1 1 0 p 0 0 0 0 66 0 0 1 0 0 0 � 0 29 1 2 4 0 1 1 Z 1 67 0 1 0 0 1 0 � 1 ' 30 0 2 2 1 0 2 1 1 68 0 2 2 0 0 1 � 2 31 0 0 0 2 2 0 1 0 *** 69 0 0 0 1 0 0 � 1 ' 32 0 1 2 3 0 0 3 0 70 1 1 3 3 3 3 � 1 33 3 0 1 2 1 2 2 2 71 1 1 3 2 3 2 5 1 ' 34 0 1 1 2 1 1 0 2 72 1 1 2 0 2 0 0 0 35 1 2 0 0 0 0 0 1 73 0 0 1 3 1 4 3 0 ' 36 0 0 0 0 0 0 0 2 74 3 3 1 2 5 5 4 3 37 0 0 1 3 3 0 1 3 75 4 3 4 0 1 1 2 3 38 1 4 0 0 0 4 3 0 76 3 2 3 Z 2 6 6 1 ' 39 1 0 1 0 0 1 0 0 77 3 0 0 0 0 0 Z 1 40 0 0 0 0 0 0 0 0 78 2 3 0 1 1 0 � 0 ' 8 Offenses: RAPE , Grid 1930 1931 1982 1933 1934 1985 1986 1987 Grid 1980 1981 1982 1983 1984 1985 1986 1987 ' 79 0 1 1 1 1 1 3 1 116 0 0 0 0 0 0 1 0 gp 0 1 0 0 0 2 0 1 117 1 2 0 3 1 2 4 1 ' 81 0 0 0 0 0 0 0 0 118 1 6 1 0 0 1 1 1 gp 0 0 1 0 0 0 0 p 119 2 2 1 0 1 1 3 1 ' g3 1 0 1 0 1 0 0 1 120 1 3 0 0 5 1 4 2 84 3 0 2 5 3 1 0 3 122 1 0 0 2 1 0 0 1 , 85 1 1 2 3 0 1 2 0 123 0 0 1 1 1 0 0 � 86 1 1 0 1 0 1 1 0 124 0 4 1 1 1 2 1 � 87 0 3 2 2 3 3 3 3 125 0 0 3 1 2 4 � 3 ' 88 2 2 7 5 4 4 8 6 126 1 3 4 3 2 4 1 � 89 6 7 14 4 9 4 0 8 127 2 3 6 11 6 3 4 4 ' gp 3 2 2 6 7 7 1 6 128 6 13 7 6 5 12 2 3 g� 1 2 1 1 1 2 4 2 129 4 3 5 5 3 5 6 5 , 92 5 1 0 6 5 3 2 3 130 1 2 3 6 4 6 3 5 93 3 2 0 1 2 1 3 3 131 6 4 5 5 7 5 4 7 ' 94 5 2 4 4 6 3 8 4 132 3 3 6 Z 10 7 9 6 95 1 0 3 2 1 3 1 4 133 1 1 2 p 0 0 1 1 ' 96 0 1 1 0 0 2 0 1 136 1 0 0 � 0 1 0 1 97 0 0 0 0 0 0 1 1 137 0 0 0 � 1 0 0 0 , 98 2 0 0 0 0 0 0 0 138 0 0 2 p 0 1 0 � 99 0 0 0 0 0 0 0 1 139 0 0 0 0 0 1 1 0 ' 100 0 0 0 0 0 0 0 0 140 0 1 0 0 0 0 0 � 101 0 1 0 0 0 0 0 0 142 0 1 0 1 1 0 0 1 102 0 1 0 2 0 1 0 2 143 0 2 0 p 1 1 0 1 , 103 4 2 3 3 1 2 3 4 144 1 2 0 � 0 0 0 1 104 0 1 1 1 0 1 1 5 145 0 0 0 1 2 1 1 1 ' 105 2 3 0 2 1 1 1 1 14( 0 1 0 1 2 2 0 0 106 5 1 4 3 5 2 5 2 �47 1 1 0 0 1 1 1 0 ' 107 1 6 5 3 5 6 6 1 148 0 1 1 2 1 0 2 0 �pg 6 4 6 6 7 5 4 5 149 0 2 0 4 0 1 4 2 ' lp9 2 2 4 3 7 3 6 2 150 1 1 0 3 1 0 2 1 llp 1 2 8 4 10 5 2 1 151 2 1 0 0 1 4 2 1 , 111 0 1 0 0 0 0 1 0 152 2 2 2 2 1 2 5 2 112 2 0 3 0 4 7 3 4 153 3 2 6 1 4 3 6 6 ' 114 1 1 1 2 3 2 0 0 160 0 3 1 1 1 2 0 � 115 1 1 1 3 2 0 0 2 162 0 0 2 0 0 0 0 1 ' 9 ' Offenses: RAPE ' Grid 1980 1981 1982 1983 1984 1985 1986 1987 Grid 1980 1981 1982 1983 1984 1985 1986 1987 163 0 2 0 1 0 0 0 0 2�2 0 1 0 0 1 0 � p , 164 1 1 1 0 0 0 0 0 213 0 1 1 1 0 1 0 0 165 0 1 0 0 p 1 0 2 214 2 1 1 1 1 0 2 1 ' 166 1 0 0 0 p 0 2 0 215 0 0 0 � � 3 p � 167 1 0 0 0 p 0 1 1 223 1 0 0 p � p � � ' 168 0 1 2 3 0 0 0 0 224 0 0 0 1 0 0 p p 169 0 0 0 0 1 0 2 0 225 0 0 0 0 0 0 p p 170 1 0 1 0 p 1 3 2 226 1 0 0 0 0 0 0 0 ' 171 1 0 0 1 0 0 0 p 230 4 1 5 1 2 3 2 p 172 2 0 1 1 0 0 3 1 240 0 0 0 0 1 1 0 1 ' 173 0 0 1 1 0 1 2 0 242 0 0 0 0 0 0 0 0 174 0 2 1 1 0 0 0 0 243 0 0 0 0 0 0 0 0 ' 175 0 0 0 0 0 0 0 0 244 1 0 0 0 0 0 0 1 180 0 1 1 0 1 1 0 2 245 0 0 2 1 2 1 1 3 ' 182 1 0 0 1 1 0 1 0 246 1 0 0 1 1 1 1 1 183 0 0 0 0 0 0 0 1 249 0 3 0 0 0 1 0 0 , lgq 0 0 0 0 0 0 0 0 *** 269 - - - ' 0 0 0 0 185 0 0 0 0 0 0 0 1 Z�o 0 0 0 0 0 0 0 0 ' �g6 0 0 1 0 0 0 0 0 TOTAL 181 217 234 230 236 246 256 230 �g7 0 1 0 0 2 0 0 0 ***Grid 69 was split in 1984 to form Grids 69 and 269. ' 188 1 1 0 3 1 4 1 0 189 0 0 0 0 1 0 0 0 ' 192 1 2 1 0 1 2 1 2 193 0 2 2 5 0 2 4 1 194 3 2 2 0 5 2 2 4 , 195 0 1 0 0 1 1 1 0 197 0 1 2 0 0 0 0 0 ' 200 0 0 0 p 0 0 0 0 202 0 2 1 r� 1 0 1 1 ' 203 1 0 1 p 0 1 1 0 204 0 0 0 p 0 0 0 0 � 205 0 0 0 p 0 0 0 0 206 1 0 0 p 1 p 0 0 ' 207 0 1 0 1 1 0 1 1 210 � 2 1 0 0 0 1 1 211 � p � � 2 � 0 0 ' 10 ' Offenses: ROBBERY ' Grid 1980 1981 1982 1983 1984 1985 1986 1987 Grid 1980 1981 1982 1983 1984 1985 198E 1937 1 1 2 1 0** 0** 0** 0** Q** 43 0** 0** 0** 0** 1 �** 0** �i ' 2 2 3 0** 0** 0** 1 2 2 44 0* 0** 0** 1 0** 1 2 1 5 0** 0** 1 2 1 0** 1 2 45 0* 0** 2 p** 0** 3 1 5* ' 6 0** 0** 2 1 1 1 0** 2 46 0* 1 0** p** 0** 0** 0** 0** 7 1 1 0** 2 1 0** 1 0** 47 0* 0** 3 p** p** p** 1 2 , $ 1 1 0** p** p** � 1 2 48 2 7* 7* 1 6* 4* 6* 2 g 1 0** 0** 2 � � 0** 0** 49 1 6 1 4 4 Z 3 2 10 �* 4 5* 0** 2 5* 4 1 50 2 5 4 6* p** 3 3 4 ' 6 4 3 � p � 5 3 51 7* 8* 9* 6* 3 5* 1 5* 11 12 12* 12* 3 3 4 2 3 6* 52 1 1 0** p** p** 2 1 3 ' 13 1 4 6* 5* 4 4* 9* 2 53 3 4 4 6* 3 2 6* 5* 14 0** 1 1 2 1 1 2 2 54 8* 8* 7* 7* 6* 6* 3 7* ' 15 1 2 0** p** p** p** p** �** 55 13* 9* 6* 8* 2 7* 7* �� 16 0** 0** 1 2 1 0** 1 1 56 3 3 4 1 1 1 0** 4 ' �� p** p** p** p** � 2 p** p** 57 13* 7* 9* 5* 8* 5* 3 13* �g 4 4 2 3 1 3 1 7* 58 7* 5 1 3 6* 4* 5 2 ' 4 5 2 1 0** 1 1 4 59 1 1 1 1 0** Z 3 4 19 20 0** 0** 0** 0** 0** 0** p** 1 60 0 1 0** 0** 0** p** 0** 0** ' Z� 0** 0** 0** 1 0** 0** �** 0** 61 3 1 2 3 0** 0** 0** 1 22 1 3 0** 1 1 0** p** 2 62 7* 6 3 � 0** 3 2 0** ' 25 1 1 2 p*,r p p** � 3 63 0* p** p** Z � p** � �** 26 p** � 2 �** p** p** q � 64 2 2 1 p** 2 0** 2 1 27 p** � p** 0** p** p** p** � 65 2 0* 3 Z � p** 4 2 ' 28 � �*,r p** �** 0*,r p** p** �** 66 0* 4 0** p** 2 0** 4 1 29 3 3 1 2 3 4* 1 2 67 8* 7* 3 2 1 4* 2 5* ' 30 2 2 0** 1 2 p** 0** p** 68 1 6 3 2 0** 3 2 2 31 2 1 3 1 4 4* 3 4 *� 69 0** 1 2 p** p** p** 1 �** ' 32 9* 3 1 5* p** 1 3 1 TO 3 4 5* 4 2 3 2 6* 33 1 4 0** 0** 1 0** � 2 71 5 7* 4 4 5* 2 6* 4 ' 34 4 5 4 1 2 2 3 1 72 1 0** + 0** p** 3 p** p** 35 2 5 1 2 1 3 �* 3 73 4 3 3 1 2 2 4 2 , 36 1 1 0** 0** 0** 1 0** 0** 74 12* 10* 6* 8* 9* 3 11* 13* 37 6 11* 5* 7* 5* 6* 4 14* 75 6 8* 5* 5* 3 3 4 6* , 38 2 5 4 4 8* 1 5 7* 76 2 2 2 5* p** 1 4 1 39 2 0* 0** p** p** p** p** 2 77 2 2 2 � 0** � 2 4 40 0* 1 0** p** p** 1 p** p** 78 0* 0** 2 � 2 2 1 3 ' 11 Offenses: ROBBERY ' Grid 1980 1981 1982 1983 1984 1985 1986 1987 6rid 1�F0 1981 1982. 1983 1984 1985 1986 1987 79 2 4 4 4 2 1 � 3 116 0** 1 1 1 1 2 1 p** ' 80 1 0** 1 2 2 p** 1 1 117 2 2 2 2 2 3 2 2 ' 81 2 1 0** 1 0** p** p** p** 118 1 7* 1 3 0** 1 1 7* 82 0** p** 1 p** 2 0** 1 0** 119 2 14* 8* 10* 4 3 7* 5* ' 83 4 5 0** 2 3 4* 4 2 120 6 9* 5* 3 8* 4* $* 5* 84 1'L* 11* 10* 10* 6* 12* 7* 4 122 3 7* 2 1 2 p** 2 1 85 11* 9* 16* 12* 8* 9* 10* 16* 123 2 4 5* 2 4 Z 3 � ' 86 7* 10* g* g* 6* 10* 6* 5* 124 �5* 7* 5* 7* 3 4* 6* 3 87 17* 10* 17* 14* 8* 12* 13* 12* 125 3 2 4 2 7* 2 9* 3 ' g$ 28* 36* 29* 20* 18* 27* 24* 39* 126 12* 6 10* 9* 5* 5* 7* 2 89 36* 28* 30* 19* 22* 20* 46* 56* 127 42* 35* 29* 26* 21* 29* 34* 19* ' 90 12* 15* 16* 19* 7* 13* 17* 15* 128 36* 62* 39* 15* 21* 17* 37* 29* 91 11* 16* 12* 6* 4 8* 8* 6* 129 38* 54* 40* 28* 19* 24* 31* 6* ' 92 22* 27* 12* 10* 9* 13* 7* 6* 130 9* 29* 15* 10* 6* 20* 14* 11* 93 1 5 2 2 p** � 2 p** 131 23* 36* 32* 31* 36* 10* 17* 14* ' 94 15* 8* 7* 11* 14* 6* g* 9* 132 13* 27* 28* 13* 26* 18* 9* 14* 95 6 6 3 8* 4 2 8* 6* 133 6 6 4 5* 5* 5* 3 5* 96 1 2 2 p** 1 �** 2 4 136 0** 0** 1 1 0** 0** 0** 0** ' 97 0** 0** �** �** p** �** Q** p** 137 p** �** �** �** p** �** p** 0** 98 1 4 2 1 � Z 2 � �38 2 0** 0** 1 0** 1 1 0** ' 99 3 0** 1 0** p** 1 3 p** 139 1 1 1 0** 1 p** 1 1 100 0** 1 0** 1 0** 0** 0** �** 140 0** 0** 0** 1 0** 1 0** 0** , 101 0** 1 0** 1 0** p** p** p** 142 p** 1 1 1 1 0** 1 0** 102 2 1 0** p** 1 2 0** 2 143 4 2 2 4 3 1 1 �** , 103 18* 11* 5* 4 8* 2 3 ��* 144 3 1 5* 7* 2 1 3 5* 104 11* 12* 6* 7* 6* 5* 6* $* 145 2 4 4 0** 2 � 8* � ' 105 14* 14* 10* 9* 10* 5* 12* 18* 146 8* 5 5* 4 8* 5* 3 2 106 12* 10* 16* 19* 15* 16* 17* 12* 147 27* 24* 22* 8* 12* 12* 13* 3 ' 107 25* 38* 18* 11* 13* 12* 24* 15* 148 16* 19* 16* 9* 18* 12* 13* 5* 108 10* 18* 15* 13* 17* 15* 27* z4* 149 5 4 4 1 4 5* 4 1 , 109 31* 38* 34* 25* 20* 22* 29* 24* 15� 4 1 3 3 7* Z �* 2 110 15* 18* 22* 12* 13* 11* 11* >>* 151 1 1 2 3 1 1 0** 0** ' 111 2 1 3 1 4 0** 1 � 152 15* 21* 11* 18* 20* 17* 5 3 112 6 11* 4 3 1 2 6* 4 153 27* 31* 25* 22* 23* 32* 24* 12* 114 1 3 4 3 0** 4* 1 � 160 2 2 2 1 2 3 0** 0** ' 115 5 2 1 5* 1 3 3 3 162 0** 0** 1 1 1 0** 2 3 , 12 ' Offenses: ROBBERY , 6rid 1980 1981 1982 1983 1984 1985 1986 1987 Grid 1980 1981 1982 1983 1984 1935 1986 1987 163 3 4 2 3 p** 1 1 p** 212 3 0** 3 3 1 2 1 4 , 164 1 5 0** 0** 3 1 3 1 213 0** 2 4 2 2 1 1 2 165 4 0** 1 1 2 1 3 1 214 1 3 4 0** 2 1 p** p , 166 2 0** p** 1 1 1 3 1 215 � p** p** p** p** p** � 1 167 1 0** �** p** � �** �** �** 223 2 p** 0** �** �** p** �** 0•k* 168 p** 1 3 2 4 0** p** � 224 2 1 0** p** � p** 0** Z ' 169 2 0** 7* 2 2 2 3 9* 225 p** � p** p** p** p** �** � 170 1 2 1 1 1 1 5 0** 226 0** 1 0** 0** 0** 0** 0** 0** ' 171 p** � �** p** p** p** �** p** 230 g* g* 3 g* g* 3 11* 13* 172 p** � � p** 0** � �** � 240 p** �** �** �** p** 0** p** �** , 173 2 3 3 2 4 2 1 5* 242 p** p** � p** � 2 0** p** 174 p** �** � �** 3 0** �** � 243 0** �** �** �**. �** p** � 0** , 0** 0** 0** 0** 0** 0** 0** p** 244 0** 0** 0** 0** 0** 0** 2 1 175 �gp 1 2 0** 1 0** 0** 0** 1 245 3 6 3 2 6* 2 6* 3 ' 182 1 1 1 0** 0** 0** 3 0** 246 5 3 4 3 p** 1 1 4 183 1 0** p** �** 0** � �** 2 249 2 2 0** p** � �** � �** ' 184 1 0** p** p** �** 2 1 3 *** 269 - - - - p** 3 p** � 185 1 1 0** p** 2 1 0** �** 280 0** p** p** p** p** p** p** �** 186 2 3 3 1 1 0** 0** 0** TOTAL 968 1113 881 717 694 660 828 773 1 187 p,r* p** 2 1 0** 1 1 0** * : In the top 25%. �gg 7* 2 5* 1 0** 5* 6* 2 **In the boitom 25%. ' 189 O,r* �** p** 1 p** Q** 0** �** *** Grid 69 was split in 1984 to form Grids 69 and 269. 192 1 4 2 3 3 1 2 p** ' 193 11* 9* 8* 6* 6* 4* 6* 12* 194 5 16* 8* 9* 5* 5* 6* 6* , 195 1 0** 0** 0** 0** 0** 2 1 197 1 0** 0** � �** �** 0** �** ' 200 0** 0** 0** 0** 0** 0** 0** 0** 202 4 1 6* 3 5* 3 2 4 ' 203 5 4 2 2 4 1 5 5* 204 1 1 0** 0** 1 2 1 1 ' 205 0** 1 0** 0** 0** 0** 0** 0** 206 0** 1 0** 0** 0** 0** 0** 0** ' 2�7 4 1 0** 0** 0** 1 0** 1 210 p** � p** p** 2 �** 2 p** 211 6 1 2 2 1 2 0** 2 ' 13 ' Offenses: AGG. ASSAULT ' Grid 1980 1981 1982 1983 1934 1985 1986 1987 Grid 1980 1981 1982 1983 19�4 1985 1986 1987 1 0** 2 1 4 0** 1 0** 1** 43 2 2 0** 0** 1 p** 1 0** ' 2 4 1 5 3 3 2 4 5 44 2 0** 1 1 0** 2 0** 1** 5 1 2 0** 1 1 p** p** q 45 4 0** 2 2 2 � 3 3 ' 6 0** 2 0** 0** 5 2 p** 1** 46 0* 1 0** 0** 1 3 0** 2 7 0** 0** 0** 0** 0** 0** 1 0** 47 3 3 4 4 1 3 8 6 8 2 0** 1 0** 1 1 1 1** 48 1 2 2 1 5 3 6 4 ' 9 0** 5 3 2 � 1 0** 1** 49 3 5 5 8* 1 3 5 4 10 2 9* 2 4 Z 7* 3 6 50 9* 15* 8* 2 9* 6 6 15* ' 11 9* 4 2 1 3 1 5 6 51 9* 7* 13* 1 6 3 5 7 12 29* 23* 24* 7* 13* 10* 20* 15* 52 3 0** 3 1 0** 2 1 p** ' 13 5 4 4 6* 8* 9* 17* 12* 53 11* 8* 7* 8* 4 8* 12* 15* 14 p** 2 4 � 1 2 0** 6 54 8* ]1* 13* 13* 15* 4 23* 26* ' 15 1 2 0** p** p** 0** 1 p** 55 10* 9* 13* 7* 5 10* 13* 12* 16 p** p** 2 5 3 2 3 6 56 1 4 6 p** 0** p** 3 6 ' �� 2 �** p** 2 p** � p** p** 57 24* 18* 12* 9* 9* 9* 18* 19* 18 2 0** 2 0** 1 0** 1 2 5$ 16* 16* 11* 2 4 5 4 6 ' �g 4 4 4 3 1 2 1 5 59 2 3 1 p** 3 5 9* 3 20 p** � �** �** p** �,r* 2 p** (Q � �** �** � p** � p** �** ' Z� � �** � �** p** p** 0** �** 61 1 3 2 4 � 2 2 1** 22 3 1 3 p** p** �** Z 0** 62 4 1 1 2 5 p** 5 �** 25 3 2 0** 1 2 2 0** 2 63 p* 3 1 p** 1 2 1 p** � 26 p** p** p** 2 3 2 p** �** 64 2 �** p 3 1 5 5 3 27 1 1 0** � 1 1 p** p** 65 3 1 1 1 3 z 1 1** ' 28 1 1 0** p** p** 3 �** 2 66 3 2 0** 3 � 1 2 1** 29 11* 5 7* 3 Z 5 7 2 67 3 2 3 � 0** 3 4 5 , 30 2 3 5 3 5 6 5 3 68 1 3 0** 2 2 2 15* 20* 31 3 3 3 4 �* 0** 5 3 *** 69 2 1 2 p** 1 1 1 0** ' 3P 5 1 3 2 1 3 4 1** 70 7* 9* 6 2 9* 12* 12* 7 33 0* 4 7* 1 8* 6 11* 7 71 17* 11* 4 17* 10* 13* 9* 12* ' 34 3 5 4 3 2 4 7 8* 72 4 5 2 p** 1 6 1 6 35 4 1 1 3 2 2 3 3 73 3 7* 13* 12* 7* 10* 14* 18* ' 3C 1 1 p** p** 3 1 0** 3 74 18* 18* 7* 20* 27* 25* 52* 37* 37 2 7* 4 6* 5 7* 5 13* 75 14* 7* 13* 5 12* 8* 9* 10* 38 12* g* g* 5 11* 5 8 7 76 8* 8* 12* 10* 14* 11* 19* 17* � 39 5 0* 4 2 1 3 6 1** 77 6 1 4 7* 4 6 3 6 40 2 1 1 0** 4 0** 0** 1** 78 2 2 4 p** 4 4 7 5 ' � 14 Offenses: AGG. ASSAULT ' Grid 1980 1981 1932 1983 1984 1985 1986 1987 Grid 1980 1981 1982 1933 1984 1985 1986 1987 , 79 1 5 1 7* 4 0** 8 4 116 4 5 1 2 5 2 2 7 80 0* 3 3 1 4 1 1 �** 117 4 4 5 7* 11* 6 6 5 81 2 0** 3 p** p** p** p** p** 118 0** 5 2 3 p** 6 11* 4 , 82 1 0* 1 1 p** 1 1 1** 119 9* 12* 5 6* 21* 8* 12* 10* 83 0* 0** 2 2 0** 1 6 3 120 3 9* 8* 5 5 5 7 7 ' 84 6 3 7* 3 4 4 8 17* 122 4 0** 2 p** 3 1 3 5 85 8* 11* 6 8* 16* 10* 7 8* 123 3 0** 3 2 1 5 6 0** ' 86 5 4 4 3 3 3 4 6 124 7* 5 1 5 2 4 5 2 87 11* 6 11* 13* 15* 12* 12* 19* 125 5 4 3 5 3 3 7 6 ' 88 26* 27* 26* 20* 29* 27* 55* 35* 126 5 7* 7* 5 11* 10* 11* 10* 89 24* 35* 31* 34* 23* 41* 65* 56* 127 35* 32* 28* 4p* 35* 34* 56* 39* ' 90 15* 22* 30* 19* 19* 14* 35* 24* 128 49* 64* 59* 43* 51* 46* 55* 55* 91 23* 15* 9* 10* 11* 13* 12* 11* 129 35* 40* 31* 19* 24* 19* 22* 15* , 92 21* 27* 14* 15* 14* 12* 16* 24* 130 13* 11* 10* 7* 3 9* 6 10* 93 5 4 1 4 17* 5 13* 5 131 32* 19* 22* 23* 26* 17* 25* 35* ' 94 15* 18* 16* 19* 17* »* �7* 25* 132 2 10* 12* 8* 12* 14* 10* 13* 95 7* 19* 7* (* 10* 13* 20* 20* 133 6 7* 2 7* 11* 3 6 4 ' 96 5 7* 2 0** 4 � 4 6 136 1 0** 1 � 1 4 0** 2 97 Z 0* 5 1 4 1 4 1* 137 0** p** 2 p** p** p** p** �** 98 2 3 5 4 0** 4 2 7 138 1 3 0** 3 1 3 4 1** ' 99 3 2 0* 1 p** 5 1 �** 139 0* 2 5 � 0** 2 0** 1** 100 1 0* 3 0** 3 2 0** p** 140 2 1 3 p** 1 1 4 1** , 101 3 1 0* 0** 0** 0** 3 �** 142 3 1 1 � 2 3 2 0** 102 1 2 1 5 � 0** 1 3 143 2 3 2 1 0** p** p** �** ' 103 7* 10* 4 12* 6 5 6 6 144 3 2 1 6* 2 2 3 4 104 12* 6 7* 3 5 6 7 12* 145 2 2 1 2 � 1 3 0** ' 105 12* 4 4 7* 8* �* 9* $* 146 4 1 2 4 1 2 9* p** 106 5 5 13* 12* 10* 23* 9* 17* 147 4 4 2 5* 2 6 2 4 ' 107 26* 29* 28* 22* 18* 26* 30* 30* 148 9* 3 5 1 � 0** � 4 108 40* 29* 26* 17* 33* 30* 36* 39* 149 0* 5 9* p** 0** p 0** 5 ' 109 23* 33* 22* 21* 17* 18* 31* 22* 15p 7* 11* 17* 15* 14* 11* 19* 15* 110 12* 15* 13* 18* 13* 10* 19* 21* 151 �* h 6 2 2 3 6 7 111 1 1 3 p** 1 2 p** 3 152 9* 9* 1 6* 14* 15* 13* 14* ' 112 11* 10* 4 � 13* 4 15* 10* 153 11* 9* 13* 6* 17* 16* 14* 12* 114 4 5 9* 5 6 18* 16* >>* 160 3 4 3 2 0** 1 1 5 ' 115 8* 7* 5 12* 9* 6 8 $* 162 0* p** p** �*,r p** p** � p** , 15 , Offenses: AGG. ASSAULT ' Grid 1980 1981 1932 1983 1984 1935 1986 1987 Grid 3980 1981 1982 1983 1984 1985 1986 1987 163 1 0** � �** p** 2 1 �** 212 2 3 1 2 1 3 3 6 , 164 0** 2 0** 0** 1 p** 0** �** 213 3 3 5 2 5 6 2 4 165 p** 2 1 4 3 p** 1 4 214 4 6 13* 2 8* 5 6 7 , 166 Z 1 0** 3 0** 3 0** 3 215 4 2 6 6* 3 g* 3 6 167 4 1 0** 5 2 2 1 2 223 0* 1 0** � 1 p** 1 �** ' 168 2 2 4 6* 3 p** 4 7 224 4 7* 0** 2 1 �1* 7 5 169 4 3 5 8* 3 3 g* 5 225 1 0* 2 p** p** p** p** p** 170 1 3 2 3 1 4 8 8* 226 1 1 0** p** p** p** p** Z ' 171 p** p** p** 1 p** 0** p** 0** 230 5 6 6 5 6 15* 6 5 172 p** 1 1 1 2 2 6 2 240 p* p* �** �** � � p** 2 , 173 3 6 7* 2 7* 3 11* 6 242 0* 0* 0** p** 2 �** p** �** 114 6 0** 1 3 5 6 6 2 243 0** p** p** �** 0** � 1 1** ' 175 p** p** p** � p** p** p** p** 244 2 0* 0** � 1 � p** p** 180 p** 2 p** 0** 2 2 1 2 245 2 1 3 � 4 7* 11* 7 ' 182 2 1 0** 0** 4 1 1 �** 246 4 5 9* 10* 0** 4 8 3 183 1 1 0** p** p** p** p** �** 249 2 2 4 � 1 p 6 7 ' 184 p** p** � 2 2 0** 1 p** *** 269� - - ' - - 0** 1 0** 2 185 1 1 0** 2 4 4 p** �** 280 Q** p**' p** p** p** 0** p** �** 186 0** 1 0** 0** 3 4 0** 2 TOTAL 1089 1101 1021 892 1032 1047 1391 358 , 187 1 1 2 2 2 3 4 3 *In the top 25%. ' 188 2 4 6 4 6 4 8 3 **In the bottom 25%. �89 0** 1 0** 1 1 1 0** 2 ***Grid 69 was split in 1984 to form Grids 69 and 269. , 192 9* 4 6 2 9* 4 7 7 193 21* 24* 23* 4 22* 16* 25* 19* 194 21* 13* 11* 11* 19* 23* 14* 22* , 195 7* 4 2 1 1 1 4 5 197 2 4 1 Z 1 0** 1 0** ' 200 �** Q,t* �** 0** p** 0** � �** 202 5 5 1 4 3 7* 3 2 ' 203 1 0** 2 2 2 2 2 4 204 � 0** 1 0** 2 2 0** p** ' 205 Q** 1 0** 1 �** 0** 0** 0** 206 �,r* �** � �** � p** p,r* �** ' 207 1 2 2 1 3 0** 1 2 210 p** 11* 6 5 2 3 0** 2 211 5 3 1 q p** 2 3 3 ' 16 ' RESIUENTIAL BURGLARY CITY-WIDE RANK OF GRIDS , No. of No. of No. of Grid Rank Offenses Grid Rank Offenses Grid Rank Offenses , 1 149 9 73 20 53 144 130 12 2 123 14 74 36 42 145 53 31 5 169 5 15 26 48 146 38 40 ' 6 119 15 76 23 51 147 42 36 7 119 15 77 113 16 148 51 32 8 82 23 78 78 24 149 82 23 9 78 24 79 40 37 150 53 31 10 32 44 80 93 21 151 140 10 ' 11 68 26 81 180 2 152 165 6 12 29 45 82 174 3 153 165 6 13 3 102 83 180 2 160 47 33 14 47 33 84 10 77 162 60 29 ' 15 188 0 85 13 65 163 93 21 16 123 14 86 13 65 164 65 27 17 119 15 81 6 94 165 78 24 18 133 11 88 1 117 166 105 18 ' 19 99 20 89 5 97 167 140 10 20 171 4 90 20 53 168 113 16 21 130 12 91 128 13 169 82 23 22 78 24 92 156 8 170 160 7 25 156 8 93 113 16 171 184 1 ' 26 188 0 94 27 46 172 188 0 27 133 11 95 11 74 173 149 9 28 119 15 96 43 35 174 156 8 29 74 25 97 99 20 175 188 0 ' 30 43 35 98 110 17 180 68 26 31 140 10 99 113 16 182 62 28 32 174 3 100 99 20 183 165 6 33 39 39 101 133 11 184 74 25 ' 34 18 58 102 149 9 185 140 10 35 53 31 103 34 43 186 140 10 36 128 13 104 40 37 187 130 12 37 68 26 105 149 9 188 93 21 38 43 35 106 113 16 189 174 3 ' 39 88 22 107 15 61 192 27 46 40 149 9 108 12 72 193 29 45 43 123 14 109 29 45 194 32 44 44 184 1 110 53 31 195 160 7 ' 45 88 22 111 188 0 197 188 0 46 160 7 112 188 0 200 140 10 47 65 27 114 88 22 202 123 14 48 74 25 115 8 86 203 105 18 ' 49 58 30 116 82 23 204 105 18 50 99 20 117 62 28 205 188 0 51 47 33 118 140 10 206 184 1 52 140 10 119 43 35 207 160 7 ' S3 18 58 120 65 27 210 188 0 54 9 82 122 88 22 211 105 18 55 25 49 123 34 43 212 93 21 56 93 21 124 58 30 213 62 28 57 17 59 125 104 19 214 74 25 ' 58 82 23 126 22 52 215 133 11 59 93 21 127 7 93 223 156 8 60 174 3 128 2 107 224 123 14 61 133 11 129 4 98 225 188 0 ' 62 160 7 130 37 41 226 171 4 63 16 60 131 68 26 230 133 11 64 23 51 132 174 3 240 88 22 65 53 31 133 149 9 242 113 16 , 66 110 17 136 149 9 243 180 Z 67 60 29 137 188 0 244 184 1 68 133 11 138 82 23 245 68 26 69 111 4 139 140 10 246 165 6 70 51 32 140 174 3 249 105 18 , 71 99 20 142 68 26 269 169 5 72 110 17 143 47 33 280 180 2 ' � 17 Offenses: RESIDENTIAL BURGLARY ' Grid 1980 1981 1982 19A3 1984 1985 19II6 1�87 Grid 1980 1981 1982 1983 1934 1985 1986 1987 ' 1 18 5** 3** 6** 6** 4** 1** 9** 43 16 17 10** 11 3** 13 17 14 2 34 29 28 20 14 32 21 14 44 0** U** Z** p** 2** p** p** 1** ' 5 17 14 19 » 5** 15 14 5** 45 23 23 16 21 23 32 29 22 6 30 11** 17 4� 2� 15 20 15 46 0** 3** 0** 0** 0** 0** 0** 7** ' 7 17 15 17 21 10** 16 22 15 47 38 27 29 41 38 35* 32 27 8 16 29 24 28 20 2$ 24 23 48 22 22 24 36 32 25 33 25 9 24 12 14 20 13 15 14 24 49 22 38 21 32 43 27 20 30 ' 10 46* 31 41 26 43 30 27 44* 50 37 51* 57* 37 44* 29 36* 20 11 20 27 31 9** 18 25 27 26 51 28 36 53* 27 36 39* 25 33* ' 12 63* 45 25 14 �4 15 20 45* 52 9** 9** 5** 10** 7** 13 12 10 . 13 59* 58* 39 48* 56* 86* 74* 102* 53 72* 89* 76* �02* 53* 77* 64* 58* ' 14 19 32 41 33 35 31 25 33* 54 86* 92* 56* 125* g5* 65* 81* 82* 15 0** 0** 0** 0** 0** 0** 0** 0** 55 38 63* 60* 110* 114* 71* 73* 49* , 16 15 12 11** 8** 12 17 7** 14 56 20 46* 53* 55* 46* 62* 22 21 17 13 16 20 27 27 24 12 15 57 56* 59* 77* 80* 78* 57* 71* 59* ' 18 23 13 34 38 31 31 14 11 58 54* 43 36 41 48* 27 33 23 19 29 30 27 29 26 24 17 20 59 6** 13 16 23 30 26 10 21 , 20 7** 5** g** q** 5** 5** 2** q** 60 �** 5** g*� g** 13 8** 11 3** 21 8** g** lp** g** p** q** Z** 12 61 16 20 11** 11 10** 5** 17 11 , 22 29 23 24 19 10** 15 13 24 62 4** 5** 7** 7** g** 6** 3** �** 25 34 24 22 27 13 10** 23 8* 63 25 19 23 11 17 8** 10 60* 26 1** 0** 0** 0** 0** 1** 0* 0* 64 23 30 25 23 30 26 26 51* , 27 3** 7** 4** 10** 11 2** 4** 11 65 17 34 21 13 31 20 17 31 28 19 17 11** 16 19 22 21 15 66 24 25 17 20 20 16 34 17 ' 29 38 32 45 37 39 56* 31 z5 67 23 21 22 17 23 30 37* 29 30 54* 30 50 40 60* 55* 35* 35* 68 9** 8** 3** 13 7** 4** 12 11 ' 31 15 6** g** g** 21 15 12 10 *** 69 4** g** �** g** Z** 4** �* q** 32 1** 1** 0** �** 1** 3** 2** 3** 70 46* 54* 55* 42 66* 35* 33 32 ' 33 36 24 48* 44 51* 65* 47* 39* 71 51* 34 60* 32 44* 46* 42* 20 34 30 59* 50* 68* 46* 64* 59* 58* 72 17 15 20 13 11 27 11 17 ' 35 32 44 51* 29 46* 38* 21 31 13 47* 56* 58* 70* 42 40* 46* 53* 36 16 25 24 15 15 19 11 13 �4 71* 79* 66* 73* 62* 60* 55* 42* 37 26 57* 42 57* 57* 53* 52* 26 75 47* 49* 47* 60* 61* 55* 35* 48* ' 38 29 41 58* 51* 44* 33 3b* 35* 76 42* 45 43 69* 33 53* 42* 51* 39 36 44 39 37 57* 26 26 ZZ 77 17 24 26 36 37 32 34 16 ' 40 21 22 15 10** 10** 15 10 g** 78 29 27 39 58* 63* 29 24 24 ' 18 ' Offenses: RESIDENTIAL BURGLARY ' Grid 1980 1981 1982 1983 1984 1985 1986 1987 Grid 1980 1981 1982 1983 1984 1985 1986 1987 79 36 27 31 34 36 35* 32 37* 116 16 27 27 26 26 18 30 23 ' gp 27 21 38 25 37 18 22 21 111 28 53* 45 40 40 31 46* 28 81 3* 5** 4** 5** 1** 0** 3* Z** 118 10** 31 16 26 20 22 25 10 ' 82 �** 3** �** 4** 0** 0** 4** 3** 119 30 26 30 36 31 40* 27 35* 83 Z** 5** �** 0** �** 2** 1** 2** 120 27 42 38 44 44* 20 25 27 84 6�* 5�* �g* 29 33 40* 48* 77* 122 49* 68* 61'* 29 56* 34 30 22 ' $5 63* 65* 70* 52* 49* 49* 64* 65* 123 49* 59* 90* 46 37 56* 27 43* 86 61* 85* 42 55* 63* 61* 60* 65* 124 60* 108* 85* 61* 38 43* 62* 30 ' $7 65* 90* 67* 1z3* 65* 70* 70* 94* 125 46* 41 53* 52* 50* 35* 51* 19 88 103* 156* 129* 132* 147* 144* 136* 117* 126 99* 110* 15G* 181* 88* 62* 85* 52* , 89 142* 167* 162* 148* 160* 156* 135* 97* 127 152* 182* 223* 205* 142* 90* 110* 93* 90 81* 75* 126* 96* 97* 82* 64* 53* 128 p�g* 250* 228* 193* 134* 134* 184* 107* ' 91 14 35 19 25 10** 11 4** 13 129 190* 195* 217* 164* 150* 134* 138* 98* 92 54* 63* 46 P3 14 11 11 8** 130 57* 62* 77* 49* 51* 68* 42* 41* ' 93 30 26 23 27 27 30 18 16 131 27 31 38 26 23 17 18 26 94 61* 58* 79* 39 37 49* 52* 46* 132 3** 15 9 10** 13 5** 5** 3** ' 95 90* 90* 85* 60* 80* 78* 70* 74* 133 3** 6** 6* 10** 8** 10** 4** 9** 9b 23 32 21 26 33 49* 37* 35* 136 1** 6** 6* 6** 2** 5** 2** 9** ' 91 18 11** 14 16 16 14 17 20 137 0** 1** 0* 1** 0** 0** 0** 0** 98 16 19 30 31 37 35* 21 17 138 21 37 28 17 27 25 22 23 99 17 18 2U 8** 9* 23 15 16 139 21 30 19 15 16 17 15 10 ' 100 11 17 18 15 20 9** 23 20 140 12 9** 14 15 27 18 1Q 3** 101 14 12 13 12 19 18 14 11 142 31 36 65* 49* 13 22 34 26 , 102 32 20 27 30 30 30 Z9 9** 143 42* 55* 60* 74* 27 28 27 33* 103 37 74* 63* 51* 59* 33 44* 43* 144 44* 47* 35 39 15 22 20 12 ' 104 53* 85* 82* 48* 47* 44* 55* 37* 145 59* 43 8'L* 7p* 39 30 46* 31 105 8** 12 9** 6** 13 13 7* 9** 146 32 52* 44 6p* 84* 70* 57� 40* ' 106 12 16 21 23 12 19 19 16 147 63* 73* 67* 91* 132* 72* 71* 36* 107 104* 128* 142* 97* 68* 44* 75* 61* 148 47* 70* 78* 107* 103* 61* 56* 32 ' 108 114* 102* 127* 116* 64* 57* 61* 72* 149 49* 34 47 40 52* 13 24 23 109 53* 66* 77* 44 32 46* 37* 45* 150 27 30 40 54* 42 16 37* 31 , 110 32 50* 66* 42 46* 35* 53* 31 151 7** 10** 19 16 18 10** 7** 10 111 �** �** �** 2** 6** 2** p** 0** 152 11 5** �** 5** 5** g** 4** 6** 112 Z** 2** 5** 3** 3** 3** Z** 0** 153 11 16 10** 10** 7** 11 6** 6** ' 114 34 29 24 27 17 26 23 22 160 29 50* 33 33 35 32 22 33* 115 85* 56* 79* 67* 70* 77* 51* 86* 162 24 62* 41 6p* 30 11 19 29 ' 19 Offenses: RESIDEPJTIAL BURGLARY ' 6rid 1980 1981 1982 1983 1984 1985 1986 1987 Grid 1980 1981 1982 1983 1984 1985 1986 1987 ' 163 27 27 62* 86* 28 22 20 21 212 39 43 33 24 47* 34 36* 21 164 44* 42 58* 105* 24 24 26 27 213 25 21 23 34 40 pp 27 Zg ' 165 42* 35 40 42 32 Z7 30 24 214 43* 44 55* 82* 36 34 29 25 166 32 23 39 31 26 28 31 �g 215 13 15 18 21 36 28 22 11 , 167 21 11** 15 z5 27 15 17 10 223 15 12 18 6** 13 13 16 8** 168 14 14 13 11 17 �9 15 16 224 21 13 18 15 12 7* 16 14 169 14 14 12 g** 26 26 15 23 225 2* 3** 2** 5** 1** �* 5** p** ' 170 16 12 11** 16 6** 6* �** �** 226 5* �** 3** �** p** �* 3** q** 171 1** 1** p** 2** �** 0* p** 1** 230 8* 14 16 14 13 7* q** �� ' 172 1** 3** 1** 3** 3** 0* 2** p** 240 5* 18 8** 7** 15 11 11 22 173 10** 5** q** 6** 5** 4* 2** g** 242 8* 14 16 19 10** 13 18 16 ' 174 19 15 13 12 9** 10* 8** g** 243 $* 2** 6** g** �** p* 5** 2** 175 0** �** 0** �** �** � �** p** 244 5* 4* 3** 3** $** �* 2** �** ' 180 20 10** 16 16 13 15 8** 26 245 14 15 24 18 17 24 17 26 182 39 34 37 49* 33 15 28 28 24b 10* 10** 12 12 10** 9* 15 6** , 183 6** 22 16 13 6** 4* 10 6** 249 15 9** 20 22 12 19 13 18 184 23 23 45 73* 19 28 11 25 *** 269 - - � _ - 5** 3* 6** 5** ' 185 9** 13 23 32 13 21 11 10 280 . p** 3** 4** . �* 1** 1* p** 2** 186 47* 33 31 40 24 25 25 10 TOTAL 6057 6676 7042 6927 6176 5591 5375 4976 , 187 22 13 24 20 15 17 17 12 *In the top 25%. 188 28 21 20 11 20 p4 20 21 189 2** �** 2** 3** p** �* Z** 3** **In the bottorn 25%. , ***Grid 69 was split in 1984 to form Grids 69 and 269. 192 58* 50* 39 68* 75* 76* b8* 46* 193 72* 50* 54* 53* 86* 71* 67* 45* ' 194 38 51* 51* 60* 66* 35* 27 44* 195 10** 18 8** �� 13 g* 6** �** , 197 p** �** �** p�* p** pk p** �** 200 7** g** 6** 4** 4** 7* 4** �p ' 202 13 10** 11** 11 11 13 11 14 203 31 25 37 41 29 pg 14 18 ' 204 29 19 33 22 15 30 28 18 205 1** �** �** p** �** � �** p** 206 2** �** g** 16 4** � 3** �** ' 207 10** g** �g �p** 9** � 6** �** 210 0** 2** 0** �** 0** Ok 1** 0** ' 211 29 27 31 28 39 30 31 18 , 20 -��r--1�-�1-�� ' COh1MERCIAL BURGLARY - CITY-WIDE RANK OF GRIDS ' No. of No. of No. of 6rid Rank Offenses Grid Rank Offenses 6rid Rank Offenses ' 1 83 5 73 15 16 144 24 9 2 74 6 74 34 11 145 24 9 5 110 3 75 32 12 146 34 11 6 171 0 76 94 4 147 19 15 ' 7 150 1 77 110 3 148 15 16 8 171 0 78 150 : 1 149 110 3 9 133 2 79 62 7 150 54 8 10 110 3 80 171 0 151 62 7 ' 11 74 6 81 94 4 152 2 42 12 54 8 82 11 18 153 1 54 13 54 8 83 39 10 160 150 1 14 110 ? 84 5 29 162 171 0 ' 15 150 1 85 8 25 163 94 4 16 l71 0 86 45 9 164 171 0 17 150 1 87 110 3 165 29 13 18 133 2 88 39 10 166 83 5 ' 19 94 4 89 25 14 167 45 9 20 83 5 90 39 10 168 54 8 21 150 1 91 19 15 169 94 4 22 54 8 92 133 2 170 62 7 25 133 2 93 110 3 171 171 0 ' 26 150 1 94 62 7 172 74 6 27 62 7 95 39 10 173 19 15 28 110 3 96 150 1 174 62 7 29 94 4 97 171 0 175 94 4 ' 30 150 1 98 133 2 180 133 2 31 150 1 99 150 1 182 171 0 32 110 3 100 171 0 183 133 2 33 133 2 101 150 1 184 83 5 , 34 74 6 102 171 0 185 110 3 35 34 11 103 15 16 186 94 4 36 171 0 104 25 14 187 171 0 37 110 3 105 25 14 188 39 10 38 94 4 106 62 7 189 110 3 ' 39 74 6 107 34 11 192 94 4 40 171 0 108 83 5 193 19 15 43 110 3 109 54 8 194 62 7 44 45 9 110 74 6 195 171 0 ' 45 9 24 111 83 5 197 110 3 46 83 5 112 12 17 200 150 1 47 110 3 114 171 0 202 39 10 48 74 6 115 110 3 203 19 15 ' 49 45 9 116 110 3 204 171 0 50 54 8 117 94 4 205 171 0 51 62 7 118 45 9 206 171 0 52 110 3 119 45 9 207 74 6 53 133 2 120 12 17 210 133 2 ' S4 12 17 122 110 3 211 150 1 55 25 14 123 83 5 212 133 2 56 133 2 124 29 13 213 133 2 57 62 7 125 133 2 214 94 4 ' 58 171 0 126 150 1 215 150 1 59 110 3 127 62 7 223 171 0 60 171 0 128 83 5 224 133 2 61 10 23 129 7 26 225 150 1 ' 62 4 33 130 62 7 226 94 4 63 29 13 131 19 15 230 45 9 64 32 12 132 5 29 240 171 0 65 15 16 133 3 38 242 94 4 , 66 110 3 136 171 0 243 171 0 67 133 2 137 133 2 244 110 3 68 74 6 138 171 0 245 94 4 69 110 3 139 150 1 246 34 11 70 83 5 140 171 0 249 150 1 ' 71 83 5 142 150 1 269 54 8 72 150 1 143 94 4 280 171 0 ' 21 Offenses: COMMERCIAL BURGLARY ' Grid 193� 1981 1982 1983 1�84 1985 1986 1987 Grid 1980 1981 1982 1983 1984 1985 1986 1987 ' � 2 4 5 4 4 2 4 5 43 5 5 0** 1** 1** Z 3 3 2 0** 0** 0** 3 4 6 3 6 44 6 2 4 1** 6 6 4 9* ' 5 0** p** 2 1** �** �** 3 3 45 5 3 3 5 7 7 12; 24* 6 �** p** �** 4 Z �** 6 0** 46 1** 12* 2 2 2 p p** 5 ' � p** g �** �** �** �** 2 �** 47 2 2 8 3 �** 4 3 3 g 0** 0** 0** 0** 0** 2 0** 0** 48 10* 4 6 5 5 4 3 6 , 9 �** 4 2 �** p** p** p** 2 49 2 17* 4 1** 9* 5 2 9* �p 10* 10* 5 2 2 3 3 3 50 7 10* a 8 6 12* $ 8 �� 2 0** 7 2 5 6 1** 6 51 5 10* 9 3 4 4 5 7 ' 12 3 3 6 1** 2 2 3 8 52 0** 0** 2 p** p** 1** 3 4 13 6 3 5 2 4 3 6 8 53 3 7 1** 2 2 10* 10 3 , 14 2 2 8 2 2 8 5 3 54 �1* 46* 30* 38* 41* 31* 26* 17* 15 2 1** 0** 2 2 1** 3 1** 55 13* 14* 10* 22* 24* 10* 20* 14* , 16 0** 1** 3 3 0** 3 2 0** 56 5 6 9 �** 5 1** 4 2 17 p** �** �** �** �** �** 2 �** 57 9 28* 19* 17* 20* 12* 15* � , 18 3 3 3 3 8 6 11* 2 58 8 6 0** 4 1** 3 5 0** 19 11* 10* 6 4 8 5 11* 4 59 3 7 1** q 3 5 3 3 ' 20 4 1** 2 4 2 4 0** 5 60 Q** �** 0** �** Q** �** �** �** 21 1** 2 2 1** 2 p** 4 1** 61 23* 10* 5 7 15* 24* 17* 23* t 22 9 2 2 5 4 3 6 8 62 18* 8 11* 15* 27* 21* 15* 33* 25 4 2 0** 1** 4 1** 2 2 63 4 6 1** 3 1** 5 6 13* 26 3 4 9 6 2 2 1** 1** 64 2 1** 1** �** 3 3 6 12* ' 27 3 9 3 0** 6 2 10 7 65 12* 10* 6 g 8 15* 18t 16* 28 2 1** 2 3 5 2 1** 3 66 6 1** 0** 4 5 1** 3 3 , Zg 1** 3 3 5 3 9* 8 4 67 5 9 6 5 6 5 4 Z 30 1** 4 6 6 0** 4 1** 1** 68 2 2 5 6 6 6 3 6 ' 31 � 6 2 10* 11* 9* 5 1** *** 69 6 13* 14* 6 6 6 5 3 32 6 1** 2 3 4 7 6 3 70 10* 11* 8 7 5 15* g 4 t 33 p** Z �** 1** 2 1* 1** 2 71 12* 11* 9 9* 5 3 �p 4 34 3 13* 12* 10* 6 11* 16* 6 72 0** 8 7 7 1** 6 �** 1** , 35 5 4 3 10* 5 8 6 11* 73 6 12* 20* 11* 9* 9* 12* 16* 36 p** �** Q** �** p** p* px* p** 74 27* 29* 31* 31* 27* 16* 29* 11* 1 37 7 12* 8 2 4 13* 4 3 75 4 8 7 13* 11* 12* 13* 12* 38 3 7 4 6 0** 6 z 4 76 3 0** 3 4 3 10* 6 4 39 3 2 4 3 3 1* 14* 6 77 1** 2 2 2 1** 2 2 3 ' 40 0** p** p** �** p** p* p** p** 18 3 3 2 3 p** p 3 �** ' 22 ' Offenses: COMMERCIAL BURGLARY 6rid 1980 1981 1982 1983 �984 19II5 1986 1987 Grid 1980 1981 1982 1983 19�4 1985 1986 1987 ' 79 7 11* 8 5 11* 12* 9 7 116 3 0** 3 2 1** 4 2 3 ' 80 1** 4 2 2 0** �** Z 0** 117 3 4 6 6 6 12* 21* 4 81 5 4 6 5 2 4 6 4 118 8 6 2 2 9* 2 7 9* ' 82 7 0** 4 1** 5 6 7 18* 119 13* 19* 13* 19* 9* g 13* 9* 83 8 19* 22* 14* 19* 19* 14* 10* 120 10* 13* 15* 1B* 21* 12* 22* 17* 84 3 13* 12* 15* 11* �$* 23* 29* 122 4 4 11* 5 3 4 6 3 ' 85 19* 23* 17* 16* 14* 25* 19* 25* 123 0* 4 4 1** 4 5 2 5 86 3 7 6 5 4 7 7 9* 124 13* 4 6 8 g P2* 16* 13* ' 87 11* 8 12* 9* 14* 8 5 3 125 7 7 3 6 4 4 7 2 88 17* 12* 29* 19* 11* 14* 14* 10* 126 0* 3 5 Z 1** 1** 2 �** ' 89 14* 10* 11* 5 12* 7 13* 14* 127 14* 20* 17* »* 14* 5 8 � 90 15* 9 22* 12* 17* 12* 13* 10* 128 16* 14* 21* 14* 11* 6 11* 5 ' 91 13* 11* 20* 13* 10* 9* 16* 15* 129 8 15* 19* 13* 14* 20* 12* 26* 92 14* 10* 10* 14* 6 12* 1* Z 130 4 14* 14* Z 8 9* o � ' 93 13* 1** 3 16* 14* 3 3 3 131 20* 17* 12* �$* 29* 15* 22* 15* 94 20* 19* 19* 11* 16* 30* 17* 7 132 12* 30* 38* 27* 40* 22* 28* z9* ' 95 9 9 19* 17* 16* 32* 27* 10* 133 32* 38* 46* 26* 43* 40* �8* 38* 96 0** �** 2 �** �** 0** �* �** 136 Q** �* �** p** �** �** �** p** 97 0** �** �** 2 �** p* �* p** 137 4 3 6 p** 3 4 q 2 ' 98 6 5 5 5 3 0* 2 2 138 �* p** p** p** 0** 2 0** p** 99 2 0** p** �** 2 �* 2 �** 139 p* �** 0** 3 px� p** p** �** ' 100 0** p** 2 �** �** �** p 0** 140 2 2 2 6 �** 2 3 p** 101 4 2 0** p** p** �** 5 1** 142 6 5 4 2 p** 5 z �** ' 102 3 3 2 2 2 5 9 0** 143 �** 6 2 1** 5 3 q 4 103 11* 15* 18* 7 11* g 7 16* 144 9 5 12* 6 5 19* 12* 9* , 104 7 14* 27* 7 10* 15* �4* �4* 145 8 6 5 6 3 11* 6 9* 105 10* 13* 21* 11* 15* 9* 20* 14* 146 11* 4 7 9* 6 5 4 >>* ' 106 14* 7 13* 12* 12* 9* 9 � 147 20* 5 7 18* 12* 10* 14* 15* 107 32* 20* 19* 7 13* 5 11* 11* 148 7 9 22* >>* 26* 14* 16* 16* ' �p$ 11* 15* 10* 13* 14* 4 �� 5 149 2 2 9 5 5 0** 3 3 109 25* 29* 26* 4 15* 27* 21* $ 15� 13* 12* 11* 17* 15* 10* 11* 8 ' 110 20* Z1* 24* 11* 12* 13* 12* 6 151 7 6 4 5 3 4 7 � 111 6 8 6 6 6 7 2 5 152 29* 41* 34* 35* 42* 6 27* 42* 112 18* 18* 24* 8 27* 14* 14* 17* 153 66* 46* 47* 23* 44* 26* 29* 54* ' 114 9 6 7 10* 6 12* 1� �** 160 0** 1** 2 3 0** 0** 0** 1** 115 11* 0** 2 �** �** 5 8 3 162 0** �* p** �** �** p** p** p** 1 23 Offenses: COM�4ERCIAL BURGLARY , 6rid 1980 1981 1982 1983 1984 1985 1986 1987 Grid 1980 1981 1982 1983 1984 1985 1986 1987 , 163 1** 3 4 3 2 5 5 4 212 4 4 17* 7 0** 4 5 2 164 3 �** 4 p** �** �** �** p** 213 5 �** �** 3 2 4 1*� 2 ' 165 7 8 16* 13* 8 10* 10 13* 214 4 4 1** 8 2 2 3 4 166 4 4 1** 4 4 1** 3 5 215 2 1** 2 2 0** 0** 0** 1** ' 167 4 0** �** 2 p** 3 3 9* 223 �** �** �** Z �** �** p** p** 168 p** 2 5 7 5 3 2 g 224 4 3 4 0** 2 1** 2 2 169 4 4 4 1Z* 3 3 4 4 225 1** �** p** ��x �** �** p** �** , 170 3 10* 5 3 �** g 3 7 226 1** 4 2 2 2 0** 2 4 171 7 7 1** 5 �** 2 G p** 230 11* 4 15* 13* 11* 13* 11°k 9* ' 172 8 4 6 1** 5 5 8 6 240 Q** 1** 1** p** p** p** p** �** 173 10* 9 14* 9* 7 5 5 15* 242 7 0** 1** 0** 2 Z 0** 4 ' 174 5 15* 7 4 4 5 4 7 243 2 0** 1** p** p** p 2 p** 175 1** 1** 2 1** 2 1** 1** 4 244 3 1* 1** 3 2 2 3 3 ' 180 12* 3 2 2 �** p** 3 2 245 8 9 5 4 8 2 1* 4 182 4 3 1** 1�''' 0** 2 1** 0** 246 9 3 9 10* 5 5 3 11* ' 183 4 0** 1** 9'` 1** 5 2 2 249 3 5 2 3 3 2 2 1** *** 184 4 5 9 7 2 2 0* 5 269 - - - - 3 4 3 8 , 185 5 6 4 4 4 Z 9 3 280 p** �* �** p** �** Z �* p** 186 0** 3 1** 1*''' 4 �** 2 4 TOTAL 1337 1372 1430 1212 1265 1268 1357 1306 ' �g7 3 1** 3 4 �** Z �* �** *In the top 25�. 188 5 7 7 6 4 14* 1* 10* **In the bottom 25%. ' 189 2 3 2 2 2 2 1* 3 ***Grid 69 was split in 1984 to form Grids 69 and 269. 192 11* 4 11* 9* 4 8 5 4 193 17* 21* 18* 15* ��* 10* 13* 15* , 194 13* 17* 9 10* 15* 17* 12* 7 195 �** 7 2 3 5 2 1* p** ' 197 2 0** 1** 1** 0** 0** 0* 3 200 0** 0** 0** 0** 0** 0** 0* 1** , 202 �** 4 4 7 5 8 9 10* 203 13* 16* 2 7 4 6 10 15* ' 204 2 1** 3 �** p** p** p* p** 205 0** 0** 1** 0** 0** 1** 1* 0** ' 206 3 1** 0** Q** �** 0** 0* 0** 207 5 1** 5 3 1** 4 3 6 210 5 4 0** 0** 2 2 8 2 ' 211 7 0** 4 5 �** �** p �** , 24 � THEFT CITY-WIDE RANK OF GRIDS ' No. of No. of No. of Grid Rank Offenses Grid Rank Offenses Grid Rank Offenses 1 1 144 23 73 54 64 144 45 72 2 115 30 74 33 91 145 87 42 5 164 15 75 39 86 146 66 55 6 139 24 76 42 80 147 22 106 ' 7 165 14 77 105 34 148 25 104 8 168 13 78 66 55 149 83 44 9 139 24 79 105 34 150 31 96 10 50 67 80 153 19 151 105 34 ' 11 81 45 81 126 27 152 6 265 12 59 60 82 182 7 153 1 509 13 47 71 83 33 91 160 87 42 14 139 24 84 36 90 162 105 34 15 194 3 85 18 139 163 149 22 , 16 120 29 86 44 75 164 126 27 17 161 17 87 40 82 165 83 44 18 139 24 88 20 117 166 131 26 19 43 76 89 15 158 167 168 13 ' 20 182 7 90 26 99 168 124 28 21 171 12 91 51 66 169 115 30 22 120 29 92 71 52 170 100 36 25 105 34 93 96 39 171 182 7 ' 26 75 50 94 29 97 172 135 25 27 57 62 95 58 61 173 71 52 28 157 18 96 115 30 174 100 36 29 144 23 97 144 23 175 179 9 30 92 40 98 66 55 180 120 29 ' 31 115 30 99 177 10 182 115 30 32 17 155 100 153 19 183 153 19 33 79 47 101 186 6 184 112 33 34 11 52 102 135 25 185 87 42 ' 35 74 51 103 48 68 186 131 26 36 126 21 104 32 92 187 157 18 37 51 66 105 2 464 188 76 48 38 124 28 106 3 363 189 182 7 ' 39 92 40 107 33 91 192 63 58 40 190 4 108 41 81 193 26 99 43 126 27 109 13 182 194 48 68 44 103 35 110 5 269 195 165 14 45 37 88 111 92 40 197 190 4 ' 46 171 12 112 23 105 200 197 1 47 92 40 114 87 42 202 51 66 48 81 45 115 63 58 203 28 98 49 112 33 116 135 25 204 135 25 , 50 55 63 117 65 57 205 194 3 51 100 36 118 9 198 206 194 3 52 174 11 119 23 105 207 165 14 53 55 63 120 11 190 210 188 5 ' 54 14 170 122 62 59 211 79 47 55 29 97 123 66 55 212 144 23 56 96 39 124 45 72 213 105 34 57 8 212 125 59 60 214 126 27 ' S8 131 26 126 70 53 215 177 10 59 131 26 127 21 107 223 174 11 60 190 4 128 16 156 224 151 21 61 87 42 129 10 192 225 186 6 62 120 29 130 37 88 226 168 13 � 63 103 35 121 12 189 230 19 138 64 98 38 132 4 273 240 180 8 65 99 37 133 7 222 242 157 18 66 157 18 136 190 4 243 171 12 ' 67 85 43 137 188 5 244 152 20 68 76 48 138 144 23 245 59 60 69 149 22 139 153 19 246 112 33 70 85 43 140 163 16 249 174 11 ' 71 139 24 142 105 34 269 180 8 72 161 17 143 76 48 280 198 0 , 25 Offenses: THEFT � Grid 1?80 1981 1982 1983 1984 1985 1986 1987 Grid 1980 1981 1982 1983 1984 1985 1986 1987 ' 1 19** 12** 24 23 17** 21 �5** 23 43 53 14** 44 47 35 29 21 27 Z 28 12** 19** 13* 17** 31 23 30 44 41 39 28 18** 29 43 35 35 ' 5 14** 12** 22** 12* 13** 21 14** 15** 45 59 45 47 30 40 lU2* 88* 88* 6 26 27 31 40 30 13* 14** 24 46 11** 7** lp** 6** 7** 8** 5** 12** 7 14** 10** 14** 10* 15** 8* 10** 14** 47 39 37 41 4� 37 33 27 40 ' g 18** 10** 21** 21 8** 16** 15** 13** 48 31 42 50 46 38 29 34 45 9 18** 19** 25 31 27 11** 12** 24 49 32 37 39 25 37 33 40 33 ' 10 132* 93* 78* 73* 43 60 62* 67* 50 �5* 64 69 56 43 40 52 63 �� 57 38 41 39 44 39 36 45 51 64 55 56 30 59 48 54 36 ' 12 93* 100* 79* 86* 45 55 75* 60 52 20** 35 15** 10** 17** 10** 23 11** 13 62 68 64 79* 82* 81* 88* 71* 53 78* 67 58 81* 57 59 59 63 � 14 28 24 15** 27 12** 15* 27 24 54 161* 161* 165* 146* 110* 114* 148* 170* 15 27 6** q** 3* 3** 3* 7** 3** 55 75* 98* 113* 99* 77* 108* 81* 97* ' 16 17** 23 25 26 26 22 29 29 56 65 40 46 37 39 39 53 39 17 13** 12** 13** 15* 12** 18 23 17** 57 184* 226* 150* 104* 83* 182* 206* 212* ' �g 33 30 27 27 20 31 27 24 58 45 47 31 36 33 41 28 26 �g 97* 92* 85* 56 62* 59 94* 76* 59 31 30 19** 24 Z� Z9 42 26 ' 20 g** �** 10** ��* �** 8* q** �** 60 3** �** �** 12** 6** 4** 6** 4** 9** 8** 7** 9* 12** 12* 15* 12** 61 37 44 62 50 39 53 44 42 21 ' z2 36 23 47 30 16** 33 26 29 62 7� 63 50 33 38 38 27 29 25 69 43 35 32 38 31 25 34 63 38 39 40 22 4z 29 25 35 26 15** 24 22** 57 59 17 9* 50 64 33 35 34 27 Z5 37 33 38 ' 2� 10** 13** 32 43 54 27 26 62 65 60 57 70 61 37 73* 25 37 28 22 12** 17** g** 25 19 22 18** 66 17** 11** 20** �Z** �6** 13** 14** �8** ' pg 36 46 33 30 20 36 22 23 67 68 72* 70 61 55 67* 52 43 30 47 49 69 45 39 36 39 40 68 42 58 36 19** 29 28 40 48 ' 31 44 25 39 43 84* 19 44 30 *** 69 14** 29 41 24 8** 15** 23 2Z** 32 135* 144* 222* 157* 71* 121* 104* 155* 70 53 47 60 49 59 40 48 43 ' 33 44 38 61 47 39 50 46 47 71 39 43 74 50 40 36 37 24 34 41 56 49 65* 48 65* 52 52 72 g** g** �g** �4** 11** 12** �2** �7** ' 35 38 43 39 37 47 23 25 51 73 49 53 60 66* 34 64* 50 64 36 16** 16** 14** 10** 13* 19 18* 27 74 96* 107* 85* 128* 94* 73* 87* 91* 37 40 54 48 38 42 54 50 66 75 76* 79* 68 60 67* 58 45 86* t 38 50 38 44 61 47 33 39 2$ 76 54 55 51 61 54 46 51 80* 39 28 38 33 33 28 22 29 40 77 20** 38 24 22 40 27 38 34 ' 40 4** 16** 8** 7** 3** 6* 11* 4** 78 31 21 29 34 27 26 29 55 26 ' ' Offenses: THEFT , Grid 1980 1981 1982 1983 1984 1985 1986 1937 Grid 1980 1981 1982 1983 1984 1985 1986 1987 79 45 36 48 40 51 34 49 34 116 19** 15** 32 22 17** 12** 14** 25 , 80 25 18** 22** 25 26 14** 19 19** 117 56 50 58 50 49 48 68* 57 81 13* 14** g** 11** g** 21 16** 27 118 168* 172* 198* 258* 259* 235* 248* 198* 82 12* 16** 9** 8** 15** 18 15** 7** 119 106* 117* 148* 137* 98* 126* 139* 105* ' 83 56 43 75 52 40 70* 121* 91* 120 98* 98* 121* 90* 8z* ��* Z22* 190* 84 88* 65 96* 53 78* 103* 60 90* 122 60 49 65 45 48 57 47 59 ' 85 112* 137* 155* 106* 95* 101* 111* 139* 123 54 45 76 45 31 54 42 55 86 77* 83* 61 89* 59 76* 96* 75* 124 69 64 89* 75* 54 63* 52 72* � 87 100* 99* 99* 99* 103* 105* 105* 82* 125 54 51 78* 57 45 38 36 60 88 128* 127* 159* 147* l31* 140* 143* 117* 126 83* 69 121* 59 69* 66* 50 53 t89 168* 129* 163* 110* 134* 135* 140* 158* 127 121* 135* 203* 169* 173* 182* �38* 107* 9p 91* 103* 119* 9q* 87* 100* 98* 99* 128 138* 180* 229* 208* 134* 145* 150* 156* ' g� 87* 74* 99* gp* 72* 93* 67* 66 129 146* 175* 319* 237* 175* 184* 175* 192* 92 68 88* 98* 76* 59 57 58 52 130 51 70 108* 82* 75* 92* 60 88* ' 93 42 32 36 32 47 36 23 39 131 173* 135* 172* 205* 161* 136* 164* 189* 94 101* 143* 109* 77* 83* 107* 104* 97* 132 161* 256* 279* 218* 236* 308* 266* 273* , 95 67 66 82* 59 68* 46 72* 61 133 147* 144* 135* 122* 132* 157* 197* 222* 96 30 25 30 �6** 14* 16** 21 30 136 8** 5** 8** 10** 13** 8** 6** 4** 97 14* 20 14** ��** g* g** 19 23 137 g** q** g** 4** 12** 7** 5** 5** ' 98 23 33 24 Z6 30 24 34 55 138 23 19** 22** 19** 16** 16** 24 23 99 16* 10* 9** 12**' 4* 12* 17** 10** 139 23 18** 20** 12** 19 15** 18** 19** ' 100 12* 12* 9** 20 15 7* 9** 19** 140 37 37 34 22 23 27 Z9 16** �p� 15* 12* 14* g** 4* 0* 6** 6** 142 39 37 27 34 25 28 »** 34 ' 102 23 33 32 ��** 26 10* 26 25 143 52 49 35 43 32 33 37 48 �p3 100* 83* 95* 53 72* 55 65* 68* 144 91* 69 65 61 58 61 53 72* ' 104 147* 134* 117* 74* 71* 88* 95* 92* 145 56 42 65 68* 35 38 52 42 105 481* 450* 323* 243* 323* 341* 493* 464* 146 62 58 95* 63* 75* 45 3� 55 ' 106 283* 330* 607* 541* 703* 627* 455* 363* 147 107* 109* 139* 147* 131* 108* 111* 106* 107 135* 132* 154* 114* 92* 92* >>6* 91* 148 71 92* 151* 170* 119* 100* >>2* 104* ' lp8 66 75* 79* 84* 50 60 7�* 81* 149 32 37 48 46 28 26 33 44 109 157* 152* 200* 103* 110* 92* 148* 182* 150 82* 76* 90* 60 92* 84* 71* 96* ' ��p 259* 246* 378* 287* 350* 256* 234* 269* 151 35 27 43 40 65 41 33 34 111 27 23 28 33 36 28 23 40 152 240* 244* 254* 245* 302* 291* 200* 265* 112 102* 97* 98* 102* 133* 114* 105* 105* 153 422* 412* 333* 328* 447* 530* 465* 509* , 114 69 44 39 46 29 39 31 42 160 71 46 49 42 53 42 63* 42 115 63 58 66 61 56 65* 77* 58 162 24 12** 17** 18** 20 16* 15** 34 ' 27 Offenses: THEFT ' Grid 1980 1981 1982 1983 1984 1985 1986 1987 6rid 1980 1981 1982 1983 1984 1985 1986 1987 ' 163 2� 23 44 31 26 25 26 22** 212 29 38 45 36 21 23 34 23 164 30 26 33 42 23 22 28 27 2�3 27 50 62 60 43 43 19 34 , 165 70 54 52 39 30 41 43 44 214 41 43 36 36 25 28 36 27 166 z3 31 45 30 36 32 25 26 215 11** 22 13** 17** 15** 9** 14** 10** ' 167 21 14** 24 15* 21 18 24 13** 223 �6** �g** �q** g** g** g** 5** ��** 168 22 39 32 37 28 18 18** 28 224 36 28 26 35 32 29 23 2�** 169 32 34 27 35 20 28 31 30 225 3** 5** 3** �** 3** p** �** 6** ' 170 19** 28 23 37 21 27 ZZ 36 226 12** 24 22** g** 2� lp** 13** 13** 171 6** g** 6** 11* g** 2* �** 7** 230 181* 192* 00* 137* 181* 127* 128* 138* , 172 20** 22 20** 35 23 28 32 25 240 3** 6** p** 6** 6** g** g** g** 173 70 68 57 56 66* 75* 57 52 242 10** 15** 12** 5** g* 14** 13** 18** ' 174 37 38 30 22 41 33 p9 36 243 4** 3** 2** 6** Z* �3** 5** �Z** 175 12** 8** 7** g** 1** g* �p* g** 244 23 15** 18** 20 27 26 43 20** ' �gp 16** 10** 12** 28 3** 16* 34 29 245 79* 85* 77* 56 35 47 61 60 182 Z� 27 23 27 20 13* 29 30 Z46 39 40 31 36 25 25 19 33 , 183 26 23 28 19** 17** 18 10* 19** 249 15** 1$** 12** 17** 26 8* 17** 11** 184 34 24 27 34 20 27 24 33 *** 269 - - - - 7* 5* 13** 8** ' 185 25 28 21** 35 24 37 26 42 280 1** 1** 1** 4** 1* p** 2** p** 186 32 28 32 28 23 13* 13* 26 TOTAL 11600 11524 12833 11125 10804 10954 11091 11661 ' 187 41 26 33 24 22 31 19 18** �gg 52 43 36 43 56 37 30 48 *In the top 25%. 189 6** 7** 5** 8** 5** 4* 7* 7** **I� �he bOttom 25%. , 192 52 47 61 59 58 59 32 58 ***Grid 69 was split in 1984 to form Grids 69 and 269. 193 97* 109* 104* 87* 82* 93* 88* 99* ' 194 78* 96* 76 65* 76* 56 65* 68* 195 12** 13** 11** 12** 11** 1�** �3* 14** ' 197 11** g** g** g** 2** �p** 9* q** 200 �** �** �** 2** 2** �* 6* �** , 2�2 108* 103* 116* 80* 55 52 44 66 203 123* 74* 71 85* 65* 66* 77* 98* ' 204 47 55 36 18** 13** Z8 25 25 205 6*r g** g** �** 2** 3** 0* 3** ' 206 g** 15** g** q** 5** 5** 8* 3** 207 58 58 33 27 23 �Z** 29 14** 210 3** �** 5** g** �** g** 5* 5** , 211 73 72* 55 28 51 32 49 47 28 , ' MOTUR VEHICLE THEFT CITY-WIDE RANK OF GRIDS ' No. of No. of No. of Grid Rank Offenses Grid Rank Offenses Grid Rank Offenses ' 1 85 6 73 58 9 144 165 1 2 128 3 74 4 27 145 85 6 5 180 0 75 20 18 146 85 6 6 128 3 75 47 11 147 29 14 ' 7 180 0 77 112 4 148 65 8 $ �48 Z 78 85 6 149 85 6 9 96 5 79 128 3 150 29 14 10 29 14 80 96 5 151 128 3 ' 11 53 10 gl 112 4 152 41 12 12 7 23 82 148 2 153 29 14 13 53 10 83 96 5 160 96 5 14 128 3 84 65 8 162 148 2 ' 15 180 0 85 3 35 163 180 0 16 112 4 86 15 20 164 128 3 17 180 0 87 15 20 165 96 5 18 85 6 88 11 21 166 165 1 19 128 3 g9 1 47 167 180 0 , 20 180 0 90 11 21 168 165 1 21 165 1 91 65 8 169 148 2 22 �48 2 92 3G 13 170 96 5 25 96 5 93 75 7 171 180 0 ' 26 148 2 94 29 14 172 75 7 27 112 4 95 29 14 173 58 9 28 165 1 96 85 6 174 75 7 29 96 5 97 128 3 175 148 2 ' 30 41 12 98 96 5 180 96 5 31 75 7 99 165 1 182 112 4 32 148 2 100 112 4 lB3 128 3 33 29 14 101 112 4 184 148 2 ' 34 27 16 102 96 5 185 165 1 35 47 11 103 23 17 186 128 3 36 128 3 104 41 12 187 165 1 37 96 5 105 47 11 188 112 4 38 112 4 106 4 27 189 148 2 ' 39 128 3 107 7 23 192 58 9 40 148 2 108 23 17 193 11 21 43 148 2 109 15 20 194 36 13 44 128 3 110 2 39 195 165 1 ' 45 85 6 111 112 4 197 180 0 46 148 2 112 23 17 200 165 1 47 96 5 114 112 4 202 41 12 48 47 11 115 53 10 203 112 4 ' 49 112 4 116 75 7 204 165 1 50 58 9 117 36 13 205 lB0 0 51 18 19 118 65 8 206 18C 0 52 128 3 119 7 23 207 180 0 53 23 17 120 41 12 210 180 0 ' 54 4 27 122 20 18 211 112 4 55 20 18 123 75 7 212 75 7 56 65 8 124 41 12 213 128 3 57 75 7 �25 85 6 214 128 3 ' 58 65 8 126 58 9 215 85 6 59 35 0 127 27 16 223 148 2 60 148 2 128 20 18 224 165 1 61 96 5 129 11 21 225 180 0 ' 62 96 5 130 53 10 226 148 2 63 96 5 131 36 13 230 47 11 64 128 3 132 65 8 240 180 0 65 58 9 133 10 22 242 112 4 66 128 3 136 180 0 243 180 0 ' 67 36 13 137 180 0 244 65 8 68 65 8 138 75 7 245 47 11 69 180 0 139 165 1 246 128 3 70 53 10 140 65 8 249 165 1 ' 71 58 9 142 75 7 269 128 3 72 148 2 143 112 4 280 165 1 ' �o Offenses: MOTOR VEHICLE THEFT ' 6rid 1980 1981 1982 1983 1984 1985 1986 1987 Grid 1980 1981 1982 1�83 1984 1985 1986 1987 ' 1 9 4 2** 7 3 4 4 6 43 5 1** 7 7 5 5 9 2** 2 1** 2 2** 1* 3 5 1** 5 44 4 2 2** p** 1** 4 6 3 , 5 2** 3 5 1* 3 3 �** p** 45 6 3 3 5 8 8 11* 6 6 5 6 2** 1* 3 2 2** 3 46 1** 0** 1** 0** 1** 1** 0** 2** 7 0** 3 0** 4 3 0** 0** 0** 47 8 10 6 4 2 4 7 5 ' 8 2** 1** 1** 2 1** 1** 2** 2** 48 4 11* 4 11* 8 5 11* 11* 9 5 4 6 4 4 2 7 5 49 17* 7 4 7 12* 10* 4 4 � 10 14* 18* 11* 5 8 15* 10 14* 50 18* 15* 14* 9* 7 7 7 9 >> 16* 8 9 10* 9 7 6 10 51 10 15* 10 7 11* 10* 6 19* ' 12 19* 10 9 6 9 9* 12* 23* 52 1** 7 4 1** 2 1** 4 3 13 14* 20* 10 11* 15* 12* 15* 10 53 14* 21* 21* 18* 9 22* 12* 17* ' 14 1** 1** 0** 0* 3 z 0** 3 54 19* 19* 26* 21* 26* 19* 34* 27* 15 1** p** p** p* p** p** 1** 0** 55 16* 18* 18* 14* 12* 12* 15* 18* ' 16 3 0** 0** 0* 3 1** 5 4 56 3 11* 8 5 3 7 9 8 11 2** 1** 2** 2 2 �** 0** p** 57 29* 17* 18* 20* 11* 8 14* � ' 18 2** 2 2** 4 1** 3 4 6 58 5 4 4 4 5 6 6 8 19 11 4 5 9* 6 8 10 3 59 5 3 5 E 6 4 11* 6 ' 20 p** �** �** � �** p** 2** p** 60 p** �** �** 2 �** p** 2* Z** ' 2� 3 0** 3 5 1** 2 1** 1** 61 4 6 11* 7 ��* 5 5 5 22 4 2 1** 3 3 5 3 2** 62 10 5 10 4 3 7 3 5 ' 25 17* 8 15* 7 5 13* 2** 5 63 4 2 5 4 5 5 6 5 26 1** 2 5 1 1** p** 1** 2** 64 5 5 9 3 7 4 4 3 ' 27 2** 2 0** 0* 1** 1** 0** 4 65 6 2 4 3 4 5 11* 9 28 3 0** 2** Z 2 3 5 �** 66 1** �** 7 4 3 �** �* 3 ' 29 8 3 3 1*� 2 5 3 5 67 6 5 9 2 7 7 9 13* 30 �2 6 11* 4 9 $ 9 12* 68 4 3 4 0** 4 4 5 8 ' 31 7 2 3 6 2 3 5 7 *** 69 4 2 7 3 p** 2 4 0** 32 4 0** 4 3 5 5 3 2** 70 16* 12* 19* 15* 18* 4 8 10 ' 33 7 7 12* 6 9 �Z* 14* 14* 7l 20* 6 20* 9* 17* 11* 9 9 34 7 6 7 8 8 13* 7 16* 72 5 1** 6 2 5 6 7 Z** ' 35 4 5 4 3 5 � 6 11* 73 10 12* 11* 12* 15* 21* 8 9 36 p** p** 2** 3 1** 2 1** 3 74 24* 40* 26* 17* 21* 23* 37* 27* ' 37 4 2 4 4 5 5 9 5 15 34* 15* 16* 15* Zg* 14* 16* 18* 38 12 10 9 11* 9 �** 6 4 76 22* 10 24* 13* 21* 23* 17* 11* 39 5 5 8 6 3 �** 7 3 77 8 2 11* 6 tp* 4 3 4 ' 40 1** 1** p** �** 2 0** p** 2** 78 5 5 8 11* 9 6 2** 6 30 ' ' Offenses: MOTOR VEHICLE THEFT ' Grid 1980 1981 1982 1983 1984 1985 1986 1987 Grid 1980 1981 1982 1983 1984 1985 1986 1987 79 9 3 9 13* 6 7 7 3 116 � 3 7 5 2 2 3 � ' gp 4 0** 3 0** 1* 1** 1** 5 117 10 6 14* 9* 10* 8 8 13* 81 1* 4 0** 5 1* 3 2** 4 ��g 3 3 7 5 8 6 7 8 ' 82 Z* �** Z** 3 1* 4 2** 2** 119 17* 19* 15* 16* 16* 16* 11* 23* 83 4 7 3 5 5 5 4 5 120 18* 12* 9 � 9 6 9 12* ' 84 9 12* 12* 5 9 14* 12* 8 122 3 5 2** 4 3 5 7 18* 85 30* 28* 34* 30* 32* 30* 21* 35* 123 7 6 8 1** 5 9* 4 7 ' 86 15* 14* 14* 15* 20* 20* 24* 2�* 124 9 11* 9 6 15* 6 8 12* 87 18* 18* 26* 13* 16* 25* 19* 20* 125 1** 7 9 10* 8 9* 7 6 88 30* 29* 31* 17* 11* 24* 31* 21* 126 15* 9 11* 7 9 11* 14* 9 ' 89 38* 27* 27* 29* 18* 24* 26* 47* 127 25* 19* 22* 12* 19* 19* 22* 16* 90 29* 21* 26* 12* 13* 21* 25* 21* 128 17* 29* 22* 13* 11* 15* 29* 18* ' g� 18* 14* 13* 17* 14* 3 10 g 129 39* 20* 28* 16* 12* 12* 20* 21* g2 17* 13* 5 8 10* 5 8 13* 130 9 2 10 4 15* 6 9 10 , 93 g g g 4 11* 4 3 7 131 34* 17* 16* 17* 16* 15* 16* 13* 94 8 22* 16* 15* 19* 7 19* 14* 132 15* 11* 16* 17* 15* 9* 15* 8 ' g5 17* 13* 17* 13* 9 14* 20* 14* 133 20* 16* 28* 20* 40* 19* 21* 22* 96 1* 8 7 7 3 2 4 6 136 6 2 2** 2 1** 0** p** p** ' 97 1 1* 2* 3 2 1** 4 3 137 1** �** �** p** p** p** p** p** 98 2* 1* 2* 4 2 3 5 5 138 3 1** 3 2 3 3 4 7 ' 99 1* 1* 1** p** 2 �** z** �** 139 6 3 2** 3 0** g p** �** 100 0* 1* 2** 0** 1 3 6 q 140 4 1** 4 0*t 2 3 2** S 101 2* 0** 3 0** p* 1** 3 4 142 1** 1** 4 3 2 3 1** 7 , 102 2* 4 5 0** 1* 3 3 5 143 3 2 4 0** 3 6 2** 4 103 10 11* 6 7 15* 18* 14* �7* 144 16* 5 5 2 4 1** 4 1** ' 104 15* 13* 16* 3 q 11* 19* 12* 145 4 10 4 3 3 0** 6 6 105 21* 23* 14* 10* 10* 7 13* 11* 146 10 1** 8 4 5 8 5 6 ' 106 18* 11* 22* 8 25* 18* 24* 27* 147 15* 5 9 9* 4 7 9 14* 107 24* 18* 10 11* 29* 23* 3Z* 23* 148 19* 12* 12* 4 2 7 12* 8 , 108 22* 19* 15* 8 18* 15* 19* 17* 149 7 6 6 4 3 4 4 6 109 16* 16* 19* g* g 7 13* 20* 150 17* 17* 20* 20* 12* 6 9 14* ' 110 47* 27* 23* 20* 8 19* 23� 39* 151 8 3 6 5 3 2 6 3 111 4 9 6 1** 3 4 2** 4 152 14* 9 19* 10* 11* 10'` 9 12* ' 112 14* 10 13* 14* 13* 15* 14* 17* 153 25* 20* 23* 20* 19* 13* 23* 14* 114 8 6 4 3 4 4 5 4 160 12 3 5 6 2 8 9 5 ' 115 14* 17* 15* 22* 10* 6 11* 10 162 1** 0** 1** 2 3 �** �** Z'`* 31 Offenses: MOTOR VEHICLE THEFT ' Grid 1980 1981 1982 1983 1984 1985 1986 1987 Grid 1980 1981 1982 1983 1934 1985 1986 1987 ' 163 1** 1** 1** 1** 2 3 5 0** 212 6 3 1** 11* 10* 6 3 7 164 9 7 4 5 4 2 5 3 213 6 4 7 9* 4 9* 14* 3 � 165 9 4 3 9* 2 3 3 5 214 12 6 11* 2 5 4 14* 3 166 6 7 3 2 p** 1** 7 1** 215 5 2 3 2 6 1** 1** 6 ' 167 3 2 1** 1** 5 2 3 0** 223 1** 3 3 1* �** �** �** 2** 168 7 5 5 1** 4 5 4 1** 224 7 7 4 1* 1** �** p** �** 169 0** 3 8 3 3 5 5 2** 225 0** 1** 0* ��* 0** 0** 0** 0** ' 170 5 2 5 1** 2 p** 4 5 226 1** 4 4 1* 1** 2 4 2** 111 0** 1** 3 0** 1** 0** 0** 0** 230 11 9 10 16* 14* 10* 13* 11* ' 172 2** 3 2** 6 4 6 7 7 240 1** 1** p* 4 �** �** g �** 173 9 9 8 6 4 5 7 9 242 �** 1** 1* p* p** 2 3 4 ' ** ** * * ** 0.,,.* p�* p** 174 10 0** 4 7 4 7 4 7 243 0 0 1 0 0 175 1** p** �** 3 p** �** �** 2** 244 8 0** 2* 1* �** q 5 8 ' 180 3 2 2** 5 2 2 6 5 245 15* 11* 10 9* 6 5 19* 11* 182 2** p** 1** 1** p** 3 3 4 246 9 9 1* 2 1** 5 3 3 ' 183 3 0** 1** 4 1** 3 1** 3 249 3 3 3 3 3 2 p** 1** 184 4 4 3 5 0** 3 1** 2** *** 269 - - - - 2 1** 7 3 ' 185 4 4 1** 3 1** 2 3 1** 280 0** 1** 0* 2 0** 0** p** 1** 186 5 6 2** 3 1** 2 2** 3 TOTAL 1703 1374 1508 1218 1294 1273 1j02 1511 ' 187 3 4 1** 7 5 �** q �** *In the 'top 25%. 188 4 9 10 ' 6 8 4 8 4 **In the bottom 25%. ' 189 2** p** 6 2 0** 8 2** 2** ***Grid 69 was split in 1984 to form Grids 69 and 269. 192 9 9 3 10* 8 10* 9 9 193 11 19* 14* 14* 1g* 15* 24* 21* , 194 12 9 12* 7 10* 15* 12* 13* 195 3 3 0** 1** Z 3 0** 1** ' 197 1** 3 0** 4 Q** 1** 0** 0** 200 �** �** �** �** 2 p** Z,r* �** , 202 11 3 6 8 13* 12* 7 12* 203 8 8 5 2 7 8 2** 4 ' 204 p** 3 3 3 2 1** 5 1** 205 p** �** �** �** �** p** �** p** 206 �** 0** p** �** �** p** Z** p** ' 207 3 2 1** 4 4 3 3 0** 210 p** �** 0#* �** �** 3 �** p** ' 211 3 4 5 5 p 5 3 4 1 32 ' Offenses: ARSON ' Grid 1980 1981 1982 1983 19�4 1985 1936 1987 Grid 1980 l�bl 1982 19E3 1954 1985 19�6 1987 1 0 0 0 0 0 0 0 0 43 0 0 1 1 0 0 0 1 ' 2 0 0 0 0 0 0 0 0 44 1 0 0 0 0 0 0 0 5 0 0 1 2 0 1 0 6 45 0 2 0 0 p p 1 1 ' 6 0 1 1 0 0 0 1 2 46 0 0 0 0 0 0 0 0 7 0 0 0 0 0 0 0 0 47 2 1 0 1 p 1 1 0 ' g 0 1 1 2 0 0 1 1 48 1 1 0 0 0 1 0 3 g 0 1 0 0 0 0 2 0 49 2 0 2 2 2 1 3 2 ' �p 1 2 0 0 1 0 0 p 50 3 1 1 2 0 3 3 4 11 0 3 1 0 0 0 0 0 51 0 5 0 0 1 1 2 3 �2 5 2 1 3 6 8 Z 2 52 1 0 0 1 0 0 0 1 , 13 6 1 0 2 2 1 2 3 53 3 4 3 1 1 1 1 3 14 0 0 0 0 1 2 0 0 54 5 5 0 1 Z 5 7 4 ' 15 0 0 0 0 0 0 0 0 55 1 0 4 2 0 5 7 3 16 0 0 0 1 0 0 0 0 56 1 2 0 2 3 1 0 1 , 17 1 0 0 0 0 0 0 0 57 1 1 3 0 0 3 G 1 18 0 2 1 1 0 0 0 0 58 0 0 2 3 5 1 4 � ' 19 0 1 0 0 0 0 0 0 59 2 1 1 0 0 2 2 2 20 0 0 0 0 0 0 0 0 60 0 0 0 p 0 0 0 � ' 21 0 0 0 0 0 0 0 0 61 1 1 0 1 0 1 4 2 22 0 0 0 0 0 1 0 0 62 1 0 0 0 Z 1 0 � ' 25 2 1 0 0 � 2 0 1 63 0 0 0 3 0 2 2 � 26 0 0 0 2 � 0 1 0 64 0 0 0 0 1 1 1 3 27 0 0 0 0 0 0 0 0 65 0 0 0 0 0 0 2 � ' 28 1 0 0 0 � 0 1 1 66 0 0 0 1 0 0 1 0 29 0 0 0 1 0 0 2 1 67 0 3 2 0 0 0 0 � ' 30 0 1 1 1 � 0 0 6 68 1 0 1 0 1 2 3 0 31 0 2 1 0 0 0 0 0 ** 69 1 0 1 0 0 0 p 1 ' 32 1 0 0 0 0 0 1 2 70 12 1 6 0 6 4 � 1 33 0 0 0 p 1 1 2 0 71 1 1 3 3 5 3 3 2 ' 34 3 4 1 � 1 0 1 3 72 1 3 2 0 2 1 � Z 35 0 0 0 � 0 0 3 0 73 4 0 5 3 4 12 3 3 ' 36 0 0 0 p 0 0 0 1 14 6 9 6 �p 5 1 �q 5 37 2 0 2 0 1 0 2 2 75 1 1 1 5 8 3 2 3 ' 38 0 0 0 0 � 1 3 7 76 1 1 5 �, 2 4 4 3 39 0 0 1 1 � 1 1 3 71 1 1 0 0 1 2 0 � ' 40 0 0 0 0 � 0 0 � 78 0 2 1 0 3 0 0 � 33 Offenses: ARSON ' Grid 1980 1981 1982 1983 1U84 1985 1986 1987 Grid 198� 1931 1^82 1983 1984 1485 1986 1987 ' 7g 1 1 0 0 3 � 0 0 116 0 1 1 1 0 0 � 2 80 3 0 0 0 0 p 1 0 117 4 Z � 2 2 1 4 Z , 81 0 1 0 0 0 0 0 0 118 1 1 0 2 2 0 Z � 82 0 0 0 0 0 0 0 0 119 2 2 1 1 1 1 3 0 ' 83 1 0 1 0 0 0 1 1 120 0 1 0 0 0 0 1 2 gq 1 6 0 0 0 1 2 2 122 2 1 2 0 0 0 0 Z ' g5 2 0 0 0 2 1 1 2 123 1 0 0 1 0 1 0 1 86 0 1 2 0 1 0 0 Z 124 2 2 0 5 0 3 1 1 87 2 2 2 3 3 1 3 Z 125 2 0 0 0 1 0 0 4 ' gg 0 2 4 7 2 9 10 7 126 1 3 0 1 1 1 3 2 g9 4 5 6 9 3 4 16 11 127 4 3 6 5 3 7 3 8 , gp 0 7 3 5 0 p 3 6 128 3 5 9 4 3 5 5 7 91 1 0 0 1 1 3 0 4 129 3 2 5 4 1 4 1 1 ' gZ 1 3 3 2 1 2 0 1 130 0 0 0 1 1 0 4 � 93 0 0 2 1 1 3 0 1 131 3 0 6 1 1 4 4 4 , gq 2 4 5 2 9 4 5 4 132 0 1 0 1 4 U 2 3 95 3 5 1 1 2 4 2 Z 133 0 3 2 0 0 1 4 Z ' 96 0 0 0 0 0 0 1 0 136 0 0 0 0 0 2 0 � 97 0 0 0 0 0 0 0 0 137 0 0 0 1 0 1 0 � ' 9g 0 0 1 1 0 1 2 4 138 1 0 0 1 0 0 0 � gg 1 0 0 1 0 0 0 0 139 0 0 0 0 0 0 0 � 100 0 0 1 0 0 0 0 � 140 � � 2 p 1 1 1 0 ' 101 0 1 1 0 0 0 0 � 142 2 0 0 2 3 0 0 � 102 1 1 1 0 2 p 0 � 143 1 1 2 1 2 3 0 � ' 103 1 4 1 5 0 0 1 1 144 p 0 1 3 4 1 0 Z 104 0 3 1 1 0 p 2 5 145 3 4 2 2 0 1 4 � ' 105 0 3 0 0 0 p 1 3 146 1 0 1 0 0 0 3 � 106 3 0 1 0 0 1 4 2 147 2 0 1 3 0 0 3 Z ' 107 6 8 7 8 3 2 8 3 148 4 0 0 5 4 3 0 � �pg 3 5 6 1 5 3 3 6 149 0 0 2 0 0 0 1 4 , �pg 2 2 1 5 0 2 3 3 15� 2 2 6 1 2 3 4 Z ��p 0 4 4 0 1 0 4 3 151 2 0 0 0 1 0 1 � ' 111 0 1 0 0 1 0 0 z 152 1 0 2 Z 1 2 1 � 112 0 3 2 1 1 � 0 � 153 2 4 1 Z 1 0 3 2 114 1 1 2 1 0 0 0 � 160 0 1 2 p 0 0 0 � ' 115 4 0 1 1 3 2 7 5 162 0 0 0 � 0 0 0 � ' 34 ' Offenses• ARSON `� � �/�� ' Grid 1980 1981 1982 1983 1984 1985 1936 1987 Grid 1980 1�981 19a2 1983 1984 1985 1986 1987 163 0 1 1 0 1 0 0 1 212 1 1 1 1 0 1 0 0 ' 164 0 0 1 1 5 0 1 0 213 1 0 0 0 2 0 1 1 165 Z 4 � 2 1 0 � 1 214 0 4 1 2 0 3 2 1 ' 166 0 1 4 0 p p 0 0 215 0 0 0 0 0 0 2 1 �67 1 0 0 1 � p 0 1 223 1 1 0 0 0 1 3 0 ' 168 1 0 0 3 p 0 1 3 22h 1 1 1 2 0 � � 2 169 1 � � 2 0 0 1 2 225 0 1 0 0 0 0 0 0 170 1 0 0 0 2 2 1 3 226 0 1 0 0 0 p 2 2 , 171 0 1 0 0 p 0 0 0 230 1 1 1 1 1 3 1 0 172 0 1 0 0 p p 2 1 240 0 0 0 0 1 0 0 0 ' 173 1 3 0 0 p 3 1 1 242 1 0 1 1 1 0 1 0 174 0 1 0 0 0 0 3 1 243 0 1 0 0 2 0 0 0 ' 175 0 0 0 0 0 1 0 1 244 0 1 0 0 0 0 1 1 180 0 1 0 1 0 1 0 0 245 1 3 2 2 1 2 � 4 ' 182 0 0 0 1 0 0 1 0 246 1 1 0 0 1 � p 0 183 0 0 0 1 0 0 0 0 249 1 1 1 0 0 � 2 0 , 184 1 0 0 1 1 0 0 0 *** 269 - - - - � 0 2 0 185 0 0 0 0 2 1 1 0 280 0 0 0 0 0 0 0 0 , 186 0 1 0 0 0 0 0 0 TOTAL 212 233 210 212 194 209 284 2g2 187 0 0 1 0 0 0 1 1 �gg 2 0 3 4 8 5 1 2 ***Grid 69 was split in 1984 to form Grids 69 and 269. ' �g9 1 3 0 0 0 0 0 1 192 1 1 2 2 3 3 4 2 ' 193 8 0 1 5 3 0 3 2 194 8 4 2 � 1 2 1 5 ' 195 0 2 2 � 0 0 2 � 197 1 3 1 � 0 0 0 � , 200 0 0 0 � 0 0 0 � 202 0 3 1 � 1 0 2 2 ' 203 1 0 1 � p 2 p 2 204 1 1 1 � p � p 0 ' 205 0 0 0 0 0 0 0 � 206 0 0 0 0 p 0 0 � , 207 0 1 0 0 � 0 0 � 210 0 2 1 1 4 1 3 3 211 1 1 3 0 p 0 0 � , 35 , , , ' , , , ' ' ' ' ' ' ' ' , ' 1 ' ' VANDALISM CITY-WIDE RANK OF GRIDS ' No. of No. of No. of Grid Rank Offenses Grid Rank Offenses Grid Rank Offenses ' 1 174 5 73 15 56 144 167 6 2 129 12 74 22 52 145 80 23 5 112 16 75 24 50 146 67 26 ' 6 141 9 76 15 56 147 67 26 7 127 13 77 86 20 148 60 29 8 129 12 78 51 33 149 121 14 9 167 6 79 104 17 150 31 47 10 40 38 80 104 17 151 121 14 , 11 100 18 81 189 2 152 27 48 12 1 123 82 189 2 153 20 53 13 60 29 83 151 8 160 74 24 14 86 20 84 46 36 162 160 7 ' 15 183 3 85 6 82 163 160 7 16 136 11 86 39 39 164 129 12 17 104 17 87 24 50 165 127 13 18 116 15 88 4 91 166 141 9 , 19 86 20 89 2 120 167 94 19 20 189 2 90 5 86 168 151 8 21 160 7 91 22 52 169 86 20 22 160 7 92 7 75 170 116 15 , 25 27 48 93 94 19 171 183 3 26 151 8 94 7 75 172 183 3 27 174 5 95 13 59 173 57 30 28 138 10 96 94 19 174 112 16 29 94 19 97 141 9 175 167 6 , 30 86 20 98 104 17 180 112 16 31 129 12 99 167 6 182 100 18 32 179 4 100 141 9 183 194 1 33 64 28 101 160 7 184 121 14 , 34 43 37 102 129 12 185 116 15 35 53 32 103 55 31 186 116 15 36 151 8 104 74 24 187 94 19 37 84 21 105 74 24 188 60 29 38 83 22 106 40 38 189 174 5 � 39 104 17 107 33 43 192 27 48 40 141 9 108 27 48 193 10 68 43 138 10 109 33 43 194 11 66 44 160 7 110 12 63 195 141 9 ' 45 32 44 111 167 6 197 189 2 46 141 9 112 37 40 200 183 3 47 55 31 114 57 30 202 112 16 48 48 35 115 14 58 203 43 37 ' 49 51 33 116 94 19 204 121 14 50 18 55 117 57 30 205 194 1 51 53 32 118 70 25 206 167 6 52 151 8 119 64 28 207 151 8 V' S3 35 42 120 70 25 210 189 2 54 3 93 122 86 20 211 66 27 55 20 53 123 86 20 212 74 24 ` 56 80 23 124 84 21 213 70 25 " 51 35 42 125 60 29 214 67 26 t 58 19 54 126 104 17 215 160 7 59 70 25 127 48 35 223 174 5 60 179 4 128 9 71 224 141 9 61 129 12 129 43 37 225 183 3 ' 62 141 9 130 100 18 226 174 5 63 179 4 131 15 56 230 50 34 64 86 20 132 37 40 240 183 3 65 116 15 133 46 36 242 167 6 ' 66 100 18 136 194 1 243 151 8 67 74 24 137 194 1 244 129 12 68 74 24 138 80 23 245 104 17 69 151 8 139 151 8 246 138 10 70 40 38 140 140 9 249 121 14 , 71 24 50 142 136 11 269 179 4 72 104 17 143 121 14 280 198 0 ' 36 Offenses: VANDALISM , Grid 1930 1981 1982 1983 1984 1985 1986 1987 Grid 1980 1981 1982 1983 1984 1985 1986 1987 ' � ��** �** 6** �** g 5** 5** 5** 43 13 4** 3** 5*� 3** 6** �** 10 2 ��** Z** �** 12 3** 6** 4** 12 44 2** 6** 4** �** Z** 5** q** �** 5 g** 5** 7** 10 4** 10 8** 16 45 19 19 6** 9 7** 18 14 44* ' 6 7** 10** 15 16 12 3** 11 9 46 2** 6** 2** 1** p** 3** 3** 9 1 2** 8** 5** 14 5** 14 7** 13 47 29 21 18 22 10 23 17 31 ' 8 20 13 11 21 8 6** 15 12 4$ 'LO 20 17 18 19 20 20 35* 9 11** 21 9 5** g 14 6** 6** 49 46* 22 17 15 22 36* 27 33 , 10 49* 18 19 29* �7 21 26 38* 50 68* 47* 30* 35* 3�* 34* 49* 55* 11 19 25 22 22 17 14 21 18 51 42 28 36* 23 16 Z�* 24 32 ' 12 182* 204* 103* 84* 135* 112* 111* 123* 52 17 12 8 7** 6** 3** 11 g** 13 41 38* 24 17 21 26 29 29 53 44* 47* 43* 31*' 34* 42* 51* 42* ' 14 42 13 17 11 8 22 15 20 54 98* 76* 55* 65* 69* 7z* 66* 93* 15 3** q** p** 4** Z** q** 2** 3** 55 96* 89* 39* 34* 38* 38* 81* 53* ' 16 19 17 24 5** 7** 13 11 11 56 31 39* 25 28* 18 14 26 23 17 25 31 11 7** 14 $ 12 17 57 65* 57* 42* 38* 35* 48* 50* 42* ' 18 50* 35 18 11 20 31* 22 15 5$ 59* 70* 54* 49* 38* 91* 72* 54* 19 46* 33 34* 23 14 23 30* 20 59 25 16 11 16 24* 15 10 25 20 9** q** 13 4** 2** 5** q** 2** 60 16 7** 4** q** 2** 4** 10 4** ' 21 3** 4** p** �** q** Z** Z** �** 61 20 11** 9 9 4** 16 10 12 22 9** 14 6** 8 12 10 14 7** 62 11* 14 6** 8 2** 7** 11 9 � 25 15 12 21 19 13 8 14 48* 63 14 18 12 7** 7** 7** 10 4** 26 1** q** 3** 4** 1** 4** 2** g** 64 15 23 17 7** 13 19 20 20 ' 27 q** g** 10 10 8 6** 12 5** 65 18 11** 9 9 8 �$ 20 15 28 13 14 4** 9 8 16 12 10 66 9* 16 11 15 11 8 12 18 ' 29 28 30 14 10 10 �5 14 19 67 30 29 24 12 16 9 37* 24 30 34 29 17 26 17 25 15 20 68 g* ��** 6** 7** g 12 13 24 , 31 24 13 21 13 12 10 11 12 *** 6g 10* 19 4** 3** 4** 6** 7** 8** 32 10** 7** 7** 4** 7** 7** g** 4** 70 53* 33 28 24 19 35* 22 38* ' 33 27 25 21 14 20 12 30* 28 71 58* 62* 46* 25 28* 3�* 35* 50* 34 55* 29 24 24 31* Z4 45* 37* 72 14 10** 13 5** 10 10 11 17 ' 35 40 22 21 11 14 14 ZO 32 73 41 52* 38* 63* 32* 32* 29 56* 36 8** 7** 7** 15 8 12 3** a** 74 66* 94* 53* 55* 68* 59* 69* 52* 37 28 33 31* 20 19 15 25 21 75 51* 50* 43* 37* 31* 3�* 56* 50* ' 38 44* 32 21 16 26* �$ �6 ZZ 76 46* 45* 33* 43* 37* 39* 57* 56* 39 40 37* 25 8 13 » » » » 12* 22 16 13 14 24 23 20 ' 40 18 9** 7** 8 8 5** 4** 9 18 34 26 21 17 18 21 26 33 37 ' ' Offenses: VANDALISM 6rid 1980 1981 1982 1983 1984 1985 1986 1987 �rid 1980 1981 1982 1983 1984 1985 1986 1987 ' 79 35 3�* 28 27* 21 23 24 17 116 12** 18 5** 11 13 18 20 19 ' gp 45* 21 24 15 19 10 19 17 117 26 30 10 19 22 16 20 30 81 10* 11** 5** 4** 1** q** Z** z** 118 31 32 28 16 14 24 36* 25 82 g* 4* 6** 3** 4** 4** 5** 2** 119 45* 49* 31* 58* 26* 43* 58* 28 ' 83 12* 12 3** 8 12 8 11 8** 120 51* 28 36* 45* 27* 23 33* 25 84 47* 34 31* 28* 14 24 37* 36* 122 16 12 34* 13 16 17 18 20 , 85 98* 57* 42* 38* 33* 50* 52* 82* 123 27 27 24 20 20 14 �g 20 86 52* 41* 21 23 21 19 33* 39* 124 49* 24 43* 27* 30* 26 p6 21 ' 87 56* 37* 35* 28* 31* 45* 59* 50* 125 27 21 21 14 14 25 24 29 88 96* 75* 78* 69* 64* 97* 99* 91* 126 46* 70* 34* 26 29* 30* 33* 17 ' 89 88* 126* 84* 66* 76* 91* 132* 120* 127 77* 84* 68* 46* 35* 45* 79* 35* 90 78* 62* 78* 44* 80* 44* 70* 86* 128 116* 114* 73* 59* 51* 76* 82* 71* , 91 27 18 29 26 27* 24 26 52* 129 53* 70* 66* 65* 46* 53* 49* 37* 92 85* 65* 47* 46* 50* 42* 55* 75* 130 29 26 26 24 9 21 23 18 ' 93 31 43* 24 29* 20 16 19 19 131 43 41* 44* 41* 20 40* 36* 56* 94 56* 76* 41* 39* 44* 63* 52* 75* 132 z3 35 30* 19 29* 51* 32* 40* ' 95 64* 61* 43* 35* 46* 60* 68* 59* 133 45* 29 32* 35* 29* 39* 37* 36* 96 26 21 17 16 11 40* 45* 19 136 3** Z** 3** 1** 2** 5** 1* 1** 97 8* 9* 11 5** �** 19 12 9 137 �** �** �** �** 2** 3** �* �** ' 98 27 21 14 12 8 16 14 17 138 20 25 16 12 11 16 24 23 99 16 19 9 7** 6** 11 12 6* 139 20 18 14 7** 8 7** 13 g** ' 100 19 16 11 9 10 20 18 9 140 �1** 17 10 4** 9 8 8* 9 101 5* 4* 3* 4** 3** 2** 3** 7* 142 14 15 13 18 11 17 8* 11 ' 102 9* 16 10 15 12 12 11 12 143 Zg 20 17 16 11 14 18 14 103 35 44* 30* 20 17 22 23 31 144 29 25 21 7** 17 16 13 6** , 104 54* 37* 39* 27* 21 33* 29 24 145 30 25 20 19 12 16 18 23 105 23 25 14 23 17 17 26 24 146 21 12 17 15 19 15 12 26 ' 106 30 49* 39* 31* 28* 22 2b 38* 147 34 25 23 20 22 19 23 26 107 51* 72* 39* 45* � 38* 38* 70* 43* 148 28 33 22 41* 16 20 24 29 ' 108 62* 59* 32* 33* 26* 37* 48* 48* 149 12* 12 11 6** 10 14 14 �q 109 61* 44* 49* 30* 24* 43* 39* 43* 15Q 66* 43* 47* 41* 36* 46* 35* 47* ' 110 30 36* 48* 29* 29* 41* 43* 63* 151 12* 13 14 12 13 9 16 14 111 5* 10** 5** 11 8 5** 7** 6 152 36 33 47* 37* 25* 56* 42* 48* 112 24 30 26 29* 10 20 42* 40* 153 54* 42* 65* 35* 47* 58* 65* 53* ' 114 35 34 20 19 16 45* 28 30 160 23 31 30* 24 19 22 21 24 115 60* 74* 41* 40* 31 59* 39* 58* 162 22 17 6** 3** 6* 10 8 7** � 38 Offenses: VANDALISM ' Grid 1980 1981 1982 1983 1984 1985 1936 1987 Grid 1980 1951 1982 1983 1984 1985 198E 1937 , 163 25 16 17 17 10 18 11 7** 212 28 22 23 15 9 23 23 24 164 41 29 26 20 19 14 11 12 213 25 29 24 15 14 24 11 25 ' 165 35 39* 13 18 14 16 25 13 214 45* 31 17 18 24* 21 16 26 166 16 20 28 8 15 18 20 9 215 19 14 8 9 25* 18 16 7t* , 167 15 16 13 10 10 7* 14 19 223 22 8** 10 7** 3** 7** 6** 5** �6g 34 15 19 18 12 10 22 8** 224 34 25 8 4** 5** 10 2** 9 169 24 25 14 17 14 21 19 20 225 7** 3** 2** 1** 4** 1** 1** 3** ' 170 16 15 5** 29* 17 12 25 15 226 3** 15 6** 4** 1** 4** 5** 5** 171 3** 6** 6** 13 5** 5* 1** 3** 230 14 35 29 27* 20 53* 38* 34* , 172 6** q** 5** g 12 4* q** 3** 240 9** �** 3** 3* �** 4** 5** 3** 173 18 20 16 40* 31* 31* 40* 3� 242 26 18 8 10 4** 6** 10 6** ' 174 22 9** 17 17 14 26 27 16 243 4** 3** 3** q* 6** 7** 6** g** 175 4** Z** 2** �** p** 3* 5** 6** 244 13 13 5** 3* 9 7** 6** �2 , 180 14 7** g g 5** g 18 16 245 39 38* 20 24 22 38* 28 17 �g2 32 13 12 8 15 6* 26 18 246 20 16 18 16 4** 8 7** 10 ' 183 19 7** 14 �3 2** q* 7** 1** 249 18 21 7** 6** 17 7** 7** 14 184 23 11** 10 �5 15 10 21 14 *** 269 • - - - 2** 6** 5** q** , 185 24 21 14 19 18 13 20 15 280 1** 0** 1** l;** 1** 1** 0** 0** lg6 20 8** 15 22 7** 8 11 15 TOTAL 6035 5482 4251 3868 3535 4272 4734 4869 ' 187 19 15 14 23 17 14 20 19 *In the top 25%. 188 39 42* 24 43* 24* 21 24 29 **In the bottom 25%. 1 189 8** 4** q** 3** 3** 2* 5** 5** ***Grid 69 was split in 1984 to forrn Grids 69 and 269. 192 71* 51* 28 33* 26* 37* 45* 48* 193 70* 57* 49* 53* 57* 48* 65* 68* ' 194 74* 81* 66* 63* 56* 82* 52* 66* 195 �** g** 5** �** 2** 4** 4** g ' 197 27 15 4** q** p** 2** 5** 2** 200 �** 3** 2** �** 2** �** 5** 3** ' 202 27 24 22 �8 16 14 15 16 203 54* 45* 30* 26 15 25 28 37* , 204 39 32 14 9 12 9 5** 14 205 5** 2** 5** 3** �** 3** �** �** ' 206 q** 5** Z** 3** 2** 2** $** 6** 207 g** g** g 6** �g q** 6** g** , 210 q** �** 5** 9 q** 5� 6** Z** 211 54* 32 37* 12 22 16 27 27 � 39 y�-��L� �; C1 � � `,,� ��8 f , • �! i LEGISLATIVE CODE � ` `,, �':.� k ' � I� i employees for work, storage or office space. (Added, Ord. 17173, Oct. 23, 1984.) ; � (12) When an existing building is converted to on=sale intoxicating � �� ; liquor purposes, existing off-street parking facilities which '� '� serve the building shall be provided with a visual screen . � i�.1 where the parking facility adjoins or abuts across an alley any � residential use or residential zoning district. The screen shall be between 4-112 and 6-112 feet in height and of suf�cient den- ` � sity to visually separate the parking facility from the adjacent ' '� residential use district. The screen may consist of various ;.� fence materials� earth berms, plant materials or a combina- �� tion thereof. Access by patrons to the parking facility from an ,� adjacent alley should generally be prohibited. (Added, Ord. �� 17173, Oct, 23, 1984.J - , :;, . ;�;� (Code 1956, as amended, �308.23, (1)-(10J; furtheramended: Ord. �� 17015, Apr. 28, 1983; Ord. 17043, Aug. 9, 1983; Ord. 17173, Oct. ' �� 23, 1984.J � 109.09. Certain sexual conduct prohibited. The following acts or ''i� conduct on licensed premises are unlawful and shall be punished � ;�� as provided by Seetion 1.05 of the Saint Paul Legislative Code: �!�! (1) To employ or use any person in the sale or service of alcoholic ;i� beverages in or upon the licensed premises while such person � '�! ;� is unclothed or in such attire,costume or clothing as to expose to view any portion of the female breast below the top of the � .� j; areola or of any portion of the pubic hair, anus, cleft of the ,';� buttocks, wlva or genitals. � � (2) To employ or use the services of any hostess while such hostess ;�a is unclothed or in such attire,costume or clothing as described '�� in paragraph (1) above. . !' ,� (3) To encourage or permit any person on the licensed premises to � ' ; ,I touch, caress or fondle the breasts, buttocks, anus or genitals i� of any other person. ., �� (4) To permit any employee or person to wear or use any device or � I covering exposed to view which simulates the breast, genitals, � anus, pubic hair or any portion thereof. ;�;, (5) To permit any person to perform acts of or acts which simul- ate: � k; ; � � j�� (a) with or. upon another person sexual intercourse, sodomy, oral copulation, flagellation or any sexual act which is ;f prohibited by law: �f . . �eS�av�'e�.-�3 �,�(n.b►�-� ��!� . 5-�ij� .g� � !I� 950 � 3/1185 �+j 1 I, '!: --------_. _. ; f ,�� • � � 409.10 ' 1 s�� j; ' CLASS III LICENSES ; �; t' :i i t �..��, • � '`�i i (b) masturbation or bestiality. , R`n.�;;, -.,�,:,; (c) with or upon another person the touching, caressing or � " � fondling on the buttocks, anus; genitals or female breast. ' ,�, (d) the displaying of the pubic fiair, anus, wlva, genitals, or � `�; � female breast below the top of the areola. � ,,,�� ' (6) To permit any person to use artificial devices or inanimate ob- ;:�� jects to depict any of the prohibited activities described above. • � � �:I (7) To ermit an � ' p y person to remain in or upon the licensed pre- . ;:;; mises who exposes to public view any portion of his or her :' f� � genitals or anus. . � �;�:�:,� (8) To permit the �showing of film, still pictures, electronic ;;��,: reproduction, or other visual reproductions depicting: ��`��; ;,�. (a) acts or simulated acts of sexual intercourse, masturba- .; � � tion, sodomy, bestiality, oral copulation, flagellation or any sexual act which is prohibited by law. � (b) any person being touched, caressed or fondled on the ��.;;, y ,�. , breast, buttocks, anus or genitals. ��'� '�'� (c) scenes wherein a person displays the wlva or the anus or ��`� �` _ ; , �; , the genitals. . �, � (d) scenes wherein artificial devices or inaniminate objects �'�', � � are employed to depict, or drawings are employed to portray, any of the prohibited activities described above. � ��.�;��I. Code 1956, as crmended, @308.23 11 . ''' ( ( )) . ;�;'! 409.10. Restrictions on licenses. 'k��: Where a reasonable basis is found b y t h e c o u n c i l t o i m p o s e r e a s o n a b l e r e s t r i c t i o n s u p o n a l i c e n s e ��: � held under this cha ter the council u on issuin a new license or ,�� P � � P g �s��',, renewing a license or approving a transfer of a license,may impose �"; � ��°�'}1 reasonable conditions and restrictions pertainin g to the manner ��,,' and circumstance..g in which the business shall be conducted to ;�� reserve the ublic p p g ~"' p p peace and rotect and romote ood order and ,: I. , security. These reasonable conditions or restrictions may pertain � �; to: I' • � � . (1) A limitation as to the hours when intoxicating liquor may be sold and/or consumed on the licensed premises; ��,,:� ,: � (2) A limitation and restriction as to the exact location within a ;�� building where intoxicating liquor will be served and/or sold i' andlor consumed; . � ,.� � li , (3) A limitation and restriction as�to`the means of ingress to or �: �� I � , . , � : 311185 951 ; � � � � 1 � D D D D � � � � ADULT ENTERTAINMENT ' � Background , The City Council initiated this study (Council File No. 86-1564) , request�ng � the Planning Commission to examine the issue of adult entertainment and to consider an amendment to the Zoning Code proposed by Councilman William L. Wilson. The proposed amendment addresses two problems with the current provisions of the Zoning Code: 1) Current spacing requirements between adult � uses and residential areas are insufficient, and 2) Current definitions of adult uses do not sufficiently specify the types of businesses that should be regulated. The study examines the land use impact of sex-oriented adult � businesses--adult movie theatres, adult bookstores, adult live entertainment and adult health clubs--and makes recommendations to regulate their location. The Planning Commission passed a resolution on August 14, 1987 to forward this � study to the Mayor and City Council and to recommend approval of the amendments attached to the study. � Recommendations . ' 1. Restrict all adult movie theatres, adult bookstores, adult live � entertainment and similar uses to I-1 and I-2 zones. 2. Require the following spacing requirements for adult movie theatres, adult bookstores, adult live entertainment and similar uses: 1320 radial feet � from other adult uses; 1320 radial feet from residential zones; 1320 radial feet from residential uses and "protected uses" (houses of worship, day care centers, public libraries, schools, public parks, public � playgrounds, public recreation centers or public specialized recreation facilities) ; 50 radial feet from retail or services businesses dealing . directly with consumers. � 3. Retain the provisions of the current Zoning Code for adult health clubs, massage parlors and similar uses: I - B-3, I-1: 1320 radial feet from other adult uses; 200 radial feet from residentially zoned property; - B-4, B-5: 300 radial feet from other adult uses; 100 radial feet from ' � residential use. 4. Define adult uses in reference to specified sexual activities and � specified anatomical areas. Currently, adult uses are defined in reference to activities which are off-limits to minors. � 5. Revise the licensing provisions in the Legislative Code, Chapter 412 (Massage Parlors, Saunas, etc. ) to include adult health clubs and massage parlors. : , � DIVISION OF PLANNING•DEPARTMENT OF PLANNING AND ECONOMIC DEVELOPMENT•CITY OF SAINT PAUL CITY HALL ANNEX•25 WEST FOURTH STREET, SAINT PAUI, MINNESOTA, 55102•TELEPHONE 612-282-1577 � ,��' -d��,� � � � � ADULT ENTERTAINMENT - , � � � 40-ACRE STUDY ,. August 1987 � � � ' Planning Division � Department of Planning and Economic Development � � � � r � TABLE OF CONTENTS � � Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Municipal Authority to Regulate Adult Uses via Zoning. . . . . . . . . . . . . . . . . . . . . . . .3 � Scope of Study. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Current Regulation of Adult Uses in Saint Paul. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 IStudies of Problems Related to Adult Entertainment--United States. . . . . . . . . . .15 � Studies of Problems Related to Adult Entertainment--Twin Cities. . . . . . . . . . . . .17 Saint Paul--Recent Problems Related to Adult Entertainment. . . . . . . . . . . . . . . . . .19 � Alternative Zoning Strategies for Dealing with Adult Entertainment. . . . . . . . . .27 Conclusionsand ttecommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 � Proposed Amendments to Zoning Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 � Appendix A = Names and Addresses of Existing Adult Uses. . . . . . . . . . . . . . . . . . . . .51 Appendix B Memorandum Discussing Issues Raised During Public Review. . . . . . .53 � Appendix C - Planning Commission Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63 Credits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65 � � . � � � � � � � � INTRODUCTION � � The City of Saint Paul first adopted zoning provisions to restrict sex-related adult entertainment in 1983. In that year, the City Council passed several amendments which define "adult uses" and restrict them to B 3, I-1, B-4 and B-5 Zoning Districts as permitted uses sub�ect to special condition use permits. However, since 1983 there has been growing concern among Saint Paul citizens that the amended Zoning Code daes not adequately address the land use problems associated with adult entertainment. Also, there is concern" that the � current definitions of adult uses create undesirable loopholes, leading to an inability of the City to regulate all adult uses. This report is in response to a City Council resolution of November 5, 1986 � requesting the Planning Commission to study possible amendments to the Zoning Code so as to restrict adult uses to Industrially Zoned Districts only, and other amendments relating to adult uses which the Commission should deem � advisable. � . � � � � � . � � � � � � 1 � � � MUNICIPAL AUTHORITY TO REGULATE ADULT USES VIA ZONING � - - �. Detroit Court Case: 1976 The concept of "inverse zoning" to eliminate concentrations of skid row � businesses was first implemented by Detroit in its "Anti-Skid Row" ordinance adopted in 1962 and amended to include sex-related businesses in 1972.- The Detroit ordinances defined "adult" establishments as those presenting material � "distinguished or characterized by an emphasis on matter depicting. . . 'Specified Sexual Activities' or 'Specified Anatomical Areas' ." Adult establishments were included in a list of "regulated uses" and the ordinances � provided that no regulated use could be established within 1000 feet of any other two regulated uses (except when the provision is waived by the buildings and safety engineering department) or within 500 feet of a residential area. � Owners of two adults-only theatres subsequently challenged the constitutionality of the ordinances and the case was ultimately taken to the United States Supreme Court. 1'he theatre operators maintair�ed that the � ordinances constituted a prior restraint on constitutionally protected communication and that the ordinances violated equal protection. Moreover, they charged that the definition of "adult" establishment is vague (due to the � �phrase "characterized by an emphasis") and that the ordinances did not specify adequate procedures or standards for obtaining a waiver of the 1,000 foot standard. � Essentially, the landmark Young v. American Mini Theatres 427 US 50 (1976) decision affirmed that municipalities may use zoning to restrict adult entertainment if adult entertainment is shown to have a harmful impact on � particular types of neighborhoods. The Supreme Court specifically held that: 1. The ordinances as applied to these respondents do not violate the Due Process Clause of the Fourteenth Amendment on the ground of � vagueness. 2. The ordinances are not invalid under the First Amendment as prior � restraints on protected communication because of the licensing or zoning requirements. Though adult films may be exhibited commercially only in licensed theaters, that is also true of all � films. That the place where films may be exhibited is regulated does not violate free expression, the City's interest in planning and regulating the use of property for commercial purposes being clearly adequate to support the locational restriction. � 3. The 1,000 foot restriction does not violate the Equal Protection Clause of the Fourteenth Amendment. � Court Cases Between 1976 and 1986 � Several federal court decisions subsequent to Youn� established the limits of zoning as a tool for restricting adult entertainment. Although it was recognized that such restrictions were valid, it was also established that i 3 � � � municipalities may not use zoning to prohibit adult entertainment entirely. Indeed, the Supreme Court itself.affirmed this principle in Schad v. Boroueh � of Mount Ephraim 452 US 61 (1981) when it struck down a zoning ordinance because it had the effect of totally suppressing the availability of nude dancing (as well as other forms of live entertainment) in a particular municipality. � This principle was also the basis for a 1982 U.S. District Court decision which struck down an ordinance in Minneapolis (Alexander v. City of � Minneapolis, CCA File No. 82-1385-MN) . According to U.S. District JudgQ Diana Murphy, the Minneapolis ordinance was unconstitutional because it effectively required the relocation of a large number of businesses into a prohibitively � small number of business sites. Renton. Washington Court Case: 1986 � A Supreme Court decision in 1986 clarified the principle which invalidated zoning ordinances used as a tool for prohibiting adult entertainment. Owners of two downtown theatres in Renton, Washington sued the city to contest a �, zoning ordinance that prohibited adult movie theaters from locating within 1,000 feet of any residential zone, single- or multi-family dwelling, church, � park or school. Geographically, this made downtown a pornography-free zone. In fact, it restricted adult theatres to a number of industrially-zoned sites. The basis of the theatre owners' suit was their claim that the zoning rule was actually an attempt at censorship in that it left them without commercially- � viable sites for their businesses. The City of Renton v. Plavtime Theatres (Docket Number 84-1360) decision � overturned a lower court ruling in favor of the theatre owners. This decision was significant in two ways. First, it stretched the meaning of "commercially viable site" in a way that favors municipalities and makes it more difficult for adult entertainment establishments to prove that a potential site is not � viable. Secondly, it established that a municipality's zoning ordinance need not rely on an analysis of the actual or potential harm caused by adult entertainment in the subject community. Instead, it can base its ordinance on � the experiences and actions of other cities. Specific conclusions of the Supreme Court in this case include: 1. Since the ordinance does not ban adult theaters altogether, it is `� properly analyzed as a form of time, place and manner regulation. "Content-neutral" time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental � interest and do not unreasonably limit alternative avenues of communication. 2. The District Court found that the Renton City Council's i "predominate" concerns were with the secondary effects of adult theatres on the surrounding community, not with the content of adult films themselves. This finding is more than adequate to establish � that the city's pursuit of its zoning interests was unrelated to the suppression of free expression, and thus the ordinance is a "content-neutral" speech regulation. � 4 � � b , _ .. �' '' . �^.. i `��R"" 1 3. The Renton ordinance is designed to serve a substantial governmental t interest while allowing for reasonable alternative avenues of � communication. A city's interest in attempting to preserve the quality of urban life, as here, must be accorded high respect. � Although the ordinance was enacted without the benefit of studies specifically relating to Renton's particular problems, Renton was entitled to rely on the experiences of, and studies produced by, the nearby city of Seattle and other cities. G4. As required by the First Amendment, the ordinance allows for- reasonable alternative avenues of communication. Although � respondents argue that in general there are no "commercially viable„ adult theatre sites within the limited area of land left open for such theatres by the ordinance, the fact that respondents must fend for themselves in the real estate market, on an equal footing with � other prospective purchasers and lessees, does not give rise to a violation of the First Amendment, which does not compel the Government to ensure that adult theatres, or any other kinds of t speech-related businesses, will be able to obtain sites at bargain ` prices. ' � Principles for Zoning to Regulate Adu1t Uses The Supreme Court decisions discussed above define the limits of zoning as a �� tool for regulating adult entertainment. In light of the legal history of this issue, it is possible to derive the following principles for constructing constitutionally valid zoning ordinances: � 1. Locational restrictions may not be so severe as to result in an inability to accommodate the present and/or future anticipated � number of adult businesses in a city. In Youne, the court upheld the Detroit ordinance upon finding that numerous sites complying with the Detroit zoning requirements were available to adult businesses and that the market for sexually explicit fare, viewed as � an entity, was therefore "essentially unrestrained." 2. The more evident and rational is the relationship of the adult-use restrictions to recognized zoning purposes, such as the preservation �� of neighborhoods and the grouping of compatible uses, the greater is the likelihood that the restrictions will be upheld. � 3. The greater is the vagueness inherent in an ordinance's wording or definitions, especially if rising to the degree that non- pornographic entrepreneurs must worry whether they are within the � ordinance's provisions, the more lilcely it is that the ordinance will be struck down. � 4. An ordinance which grants administrative officials discretionary , power whether or not to allow particular adult businesses to operate is more likely to be struck down as violative of the precept, emphasized by the Youn� dissenter, that in the First Amendment area � "government may regulate only with narrow specificity." � 5 1 � CURRENT REGULATION OF ADULT USES IN SAINT PAUL � ' � Types and Locations of Adult Businesses � Depending on the system of categorization, there are at present either 14 or 19 adult entertainment establishments in Saint Paul. The Saint Paul Building Inspection and Design Division currently does not regard licensed bars. as "adult uses," even if they offer sexually explicit live entertainment. There � are five bars in Saint Paul offering such entertainment. There is also one business offering sexually explicit live entertainment which claims to be a private club open to minors as well as adults;• however, Saint Paul's Building � Inspection and Design Division categorizes it as an adult cabaret and thus is treating it as an illegal nonconforming use. Appendix A contains a comprehensive list of the names and addresses of the 19 � establishments. The categories for the establishments are as follows: 2 Movie Theatres � 1 Bookstore 1 Adult Cabaret 10 Massage Parlors, Saunas, Health Clubs � 5 Bars With Live Adult Entertainment All of these businesses are within commercially zoned districts. Specifically, the zoning is as follows: � 4 B-2 (Community Business District) 13 B-3 (General Business District) � 1 B-4 (Central Business District) 1 CAAPB (Capitol Area Board) Jurisdiction Seventy-nine percent (15 out of 19) of adult entertainment establishments in � Saint Paul are located on major thoroughfares: Arcade, Payne, Rice, Snelling, University and Seventh Street; the other 21 percent (4 out of 19) are on Grand, Hudson Road, Milton and Prior, which bear lower street classifications � as minor arterials or collectors. The total number of adult businesses has dropped to 19 from 30 in 1977 and 24 in 1982. The overall decline in number between 1977 and 1987 is a result of � several factors. Some establishments were removed from the downtown area as a result of redevelopment in the area of the World Trade Center. Also, neighborhood pressure has� resulted in the relocation or reorientation of � several establishments. At the same time, zdning and licensing codes have become more restrictive, making it more difficult for new adult establishments to open. Finally, the recent increase in the popularity of home videotape � players has apparently changed conswnption patterns in a way that has diminished the demand for some forms of entertainment outside of the home. � � 9 �` � ADULT ENTERTAINMENT IN SAINT PAUL (1987) � - ---- .�.d ti� ----- s � - � - ..�,.�. � ' �\ � �t � �� ,# ,� -- � �` � £ 3 �` � E 3 . s"` .�,.�,,,; . --�.'°" ,, i' . s � ; - h. �y i F � � - � ♦ _ ; � _ � � ' i i 3 � � f � � q p � 7 'An . ^�a� «A` `$, Q �/p �Q / w� � �\\ e � �E .ia' Y 4d` B ? �\8 � P . 9 Xx � � ��s ci■ �qa ; � PB�� if Y wm�.�x k E F -�, p F 1 � � �. � � m �,�.. � � ¢� __"6s___b..� g s i� p .` a ,, B A P A 9 �R 1 L� $ ` "� �� 1` � s� A Theatre D Health Club � p' � B Bookstore C Bar With Live 1'�,`� �I p C Adult Entertainment . ,�p+° C Cabaret i `� `�Q.._ . . ---- ' � � � NUMBER OF ADULT ENTERTAINMENT ESTABLISHMENTS IN SAINT PAUL: 1977-1987 � Number by Category Movie Massage, Sauna, Live � Year Theatres Bookstores Health Club Entertainment Total � 1977 2 5 10 13 30 1982 2 5 10 7 24 � 1987 2 1 10 6� 19 � * 5 licensed bars with exotic dancers, 1 adult cabaret ;t 10 � � � Zoning and Licensing to Regulate Adult Uses � Saint Paul currently regulates adult uses in two ways: with zoning and with licensing. The current zoning regulations date from 1983 when, for the first time, specific "adult uses" were defined and permitted in zones B-3 (General � Business District) , B-4 (Central Business District) , B-5 (Central Business- Service District) , and I-1 (Industrial District--by virtue of their inclusion in B-3) . In all cases, adult uses are made subject to special conditions: �' B-3 (and I-1) : 1320 feet from other adult uses; 200 feet from , residentially zoned property (may be waived by Planning Commission with � the consent of 90 percent of property owners within 200 feet and with consideration of various factors pertaining to the public interest) � B-4, B-5: 300 feet from other adult use; 100 feet from residential use; not located in a building also used for residential purposes The City's licensing provisions differ from its zoning provisions in that they � deal with adult uses only in the context of broader categories. For example, there are no specific regulations applying to "adult movie theatres." However, there are licensing provisions pertaining to sex-oriented films shown � by movie theatres. " The zoning and licensing regulations are summarized in charts on the following � pages: � � . � � �� . � . � � � 11 � � ZONING REGULATIONS PERTAINING TO ADULT ENTERTAINMENT IN SAINT PAUL � Cited in Defined in Public � Zoning Zoning Zones Where Distance Hearing Category Code Code Permitted Requirements Notice � Movie Theatres Yes Yes B-3, B-4, Yes Yes B-5, I-1 � Bookstores Yes Yes B-3, B-4, Yes Yes B-5, I-1 � Massage Parlors, Yes Yes (1) B-3, B-4, Yes Yes � Saunas, Health B-5, I-1 Clubs Conversation/ Yes Yes (2) B-3, B-4, Yes Yes � Rap Parlors B-5, I-1 � Live Entertain- Yes Yes (3) B-3, B-4, Yes Yes ment B-5, I-1 � Notes: (1) "Massage Parlor, Sauna, Health Club" is specifically defined. The definition states, among other things, that this type of � establishment is licensed under Chapter 412 of the City Legislative Code and restricts minors by virtue of age, , (2) "Conversation/Rap Parlors" are specifically defined but no "adult" � distinction is included �in the definition; "adult conversation/rap parlors" are included as example of "adult uses". (3) "Adult cabaret" is specifically defined. � . � � � 1 � 12 � � / / . _�`_ ��J�.� � � � LICENSING REGULATIONS PERTAINING TO � ADULT ENT�RTAINMENT IN SAINT PAUL � City Conditions Distance Public Council (Neighborhood Category Defined Requirements Notice Hearings Issues) � Movie Theatres Yes (1) No No No Limits on sex- � oriented advertis- ing; violation of Icertain obscenity � laws may result in revocation of license � Bookstores Yes (1) No No No Limits on business (only if hours of second- � "second hand dealers (7am- hand goods") lOpm) rMassage Parlors, Yes 200' from 30 day Yes Character of �� Saunas, Health (1) , (2) residential; to 300' neighborhood; Clubs modify by 90$ proximity to � of owners with- schools, churches, in 200' others; nuisance � Conversation/ Yes (1) No No No No Rap Parlors � Live Entertain- Yes 90� consent 30 day Yes Considered when ment (1) , (3) of owners to 300' only 60�-90� of � within 200' residents within 200' consent � Notes: (1) No discrimination between "adult uses" and other uses. (2) The License Division does not consider adult health clubs to be offering "massages" ; thus, they are not required to be licensed. � (3) Four classes of licenses. ' 1 � � 13 � � The above chart reveals two notable features of the City's licensing procedures relative to, adult entertainment. The first relates to adult health � clubs; the second, to bars providing live adult entertainment. First, it is notable that none of Saint Paul's adult health cTubs are licensed � under Chapter 412 of the City's Legislative �ode. This would seem to violate 412.01 which states: No person shall engage in the business of operating a physical culture � and health service, physical culture and health club, reducing c1ub, reducing salon, sauna and/or a massage parlor, either exclusively or in connection with any other business enterprise, without being licensed as � provided in this chapter. No license is required of adult health clubs because of the definition of �i "massage" in 412.02(2) : "Massage" means the rubbing, stroking, kneading, tapping, or rolling of the body with the hands, for the exclusive purposes of relaxation, � physical fitness, or beautification, and for no other purposes. Adult health clubs claim that their services are administered with a feather device rather than with "hands" and thus they are not considered to be � offering massages. The second notable feature of the City's licensing procedure is that bars � providing live adult entertainment will soon be affected by a recently- approved ordinance. In 1985, City officials began considering changes in the licensing and regulation of entertainment in Saint Paul, These deliberations � resulted in an ordinance approved in February of 1987 which will create four classes of entertainment licenses, distinguished by the scale of entertainment provided. Also, establishments requiring a second, third or fourth class � license will need to submit a new application and will be scrutinized by both the City Council and neighborhood district councils. This new system will go into effect in 1988. Like the current regulations, the new regulations will not distinguish between � "adult" entertainment and other forms of entertainment. However, they will undoubtedly have an impact on live adult entertainment in two ways. First, � live adult entertainment will be included in the fourth and most expensive licensing class ($1000 per year for "stage shows, skits, vaudeville, theater, � contests, and/or dancing by performers without limitation as to number, including patron participation in any of the aforementioned") . Businesses � offering live adult entertairrment currently pay only $60 per year for a license. Secondly, neighborhoods that are dissatisfied with adult entertainment will potentially be able to block the licensing of businesses � offering such entertainment when the business applies for the new license. � . � 14 � � � STUDIES OF PROBLEMS RELATED TO ADULT ENTERTAINMENT--UNITED STATES � � There is a well-established relationship between sex-oriented adult entertainment and neighborhood social problems in the United States. Numerous � cities have studied this problem and have concluded that typically property values are lower and crime rates are higher in the immediate vicinity of adult businesses. Among the more prominent studies of this problem are those of Phoenix (1979) , Indianapolis (1983) and Los Angeles (1984) . The results of � these studies are summarized below. � Phoenix In Phoenix, the Planning Department published a study entitled "Relation of � Criminal Activity and Adult Businesses" (May, 1979) which showed that arrests for sexual crimes and locations of adult businesses were directly related. The study compared three areas containing adult uses with three control areas that had similar demographic and land use characteristics but no adult � � businesses. The study concluded that, on average, in the three study areas, property � crimes were 43 percent higher, violent crimes were four percent higher, and sex crimes were over 500 percent higher than in the control areas. Moreover, the study area with one of the city's highest concentrations of adult businesses had a sex crime rate over 11 times as large as a similar area � having no adult businesses. Finally, 89 percent of the reported crimes of indecent exposure were committed at the addresses of adult businesses. � Indianapolis � In 1983, the City of Indianapolis researched the relationship between adult entertainment and property values at the national level. The study was based on a 20 percent random sample of the national membership of the American Institute of Real Estate Appraisers and a sampling of MAI (Member Appraisers � Institute) members who practiced in 22 metropolitan areas. The results of this survey are as follows: � 1. Survey respondents overwhelmingly (80 percent) felt that an adult bookstore located in the hypothetical neighborhood described would have a negative impact on residential property values of premises � located_within one block of the site. 2. Seventy two percent of the respondents also felt that there would be a detrimental effect on commercial property values at the same one � block radius. 3. This negative impact dissipates markedly as the distance from the � site increases, so that at three blocks the estimate of negative impact decreases by more than one-half as judged by the number of respondents indicating negative impact at three blocks. � 15 � _ . � Los Angeles ' A 1984 study done by the Los Angeles Police Department investigated the � relationship between adult entertainment and crime in the Hollywood area. The study indicated that in 1969, there were 11 sex-oriented adult entertainment � establishments but by 1975 the number had grown to 88. During the time period from 1969 to 1975, reported incidents of "Part I Crime" (i.e. , homicide, rape, aggravated assault, robbery, burglary, larceny and vehicle theft) in the Hollywood area increased 7.6 percent while the rest of Los Angeles had a 4.2 � percent increase. "Part II" arrests (i.e. , other assaults, forgery and counterfeiting, embezzlement and fraud, stolen property, prostitution, narcotics, liquor laws, gambling and miscellaneous misdemeanors) increased � 45.4 percent in the Hollywood area and 3.4 percent in the rest of Los Angeles. � � � � � � � � � � � � � 16 � . � � STUDIES OF PROBLEMS RELATED TO ADULT ENTERTAINMENT--TWIN CITIES � � In recent years, there have been two systematic statistical studies of the relationship between adult entertainment, crime and property values in the � 1�,iin Cities. The first study, published in 1978, focused on Saint Paul and involved the Division of Planning and the Minnesota Crime Control Planning Board. The second study, published in 1980, examined conditions in Minneapolis and was done by the Minnesota Crime Prevention Center in � cooperation with the Minneapolis City Council. The results of these two studies are as follows: � Saint Paul The Saint Paul study combined sex-oriented adult businesses with alcohol- � oriented adult businesses possessing a liquor or 3.2 beer license during the study period (1970-1976) . For this reason, none of its conclusions apply to sex-oriented adult entertainment as a separate category. Nevertheless, the , � following conclusions are notable: 1. There is a statistically significant correlation between the � location of adult businesses and neighborhood deterioration, as measured. 2. Adult establishments tend to locate in somewhat deteriorated areas. � 3. Additional relative deterioration of an area follows location of an adult business in the area. � 4. Crime rates relate to the establishment of adult businesses in a threshold fashion. There is a significantly higher crime rate associated with two such businesses in an area than is associated � with only one adult business. 5. Housing values also relate to the establishment of adult businesses � in a threshold fashion. There is significantly lower value associated with three such businesses in an area than is associated with only one adult business. � Minneapolis � The Minneapolis study examined sex-oriented and alcohol-oriented adult entertainment separately. Using both simple regression and multiple regression techniques, this study concluded that sex-oriented businesses have � a greater nwnber of significant relationships to high crime rates and low property values than any other type of adult entertainment establishments examined. � � 17 � . � In the Minneapolis study, the relationship between sex-oriented businesses and highez crime rates was especially strong. The association between sex- � oriented businesses and lower housing values disappeared, however, when other factors were taken into account. In addition, these businesses were quite strongly related to the percentage of vacant commercial properties, which is � often used as a measure of a declining commercial area. However, the study noted that these associations alone are not evidence that a sex-oriented business locating in an area causes other businesses to leave or property values to decline. Alternatively, these associations may indicate that sex- � oriented businesses locate where property values have already fallen and demand for commercial space is weak enough to permit them to compete successfully for space. � � � . � � � � � � , � � � � 18 � � . . �� SAINT PAUL--RECENT PROBLEMS RELATED TO ADULT ENTERTAINMENT � � Saint Paul has continued to experience social and economic problems related to adult entertainment. Essentially, these problems stem from prostitution which has been associated with adult entertainment in two ways. First, there have � been persistent problems with street prostitution in the area of University Avenue and Dale Street. Secondly, there is strong evidence that prostitution sometimes occurs within Saint Paul's adult health clubs. �` University-Dale Neighborhood Problems In Saint Paul there is one neighborhood that has an especially heavy � concentration of adult entertainment establishments. The blocks ad�oining the intersection of University Avenue and Dale Street have nearly 25 percent (4 out of 19) of the city's adult uses, including a1I of Saint Pauls's adult � bookstores and adult movie theatres. As in other American cities, the growth of adult entertainment in this neighborhood has accompanied significant social and economic decline. . �, The Thomas-Dale District (Citizen Participation District #7) is the district that has been most affected by adult entertainment in the Saint Paul. This � district is generally bounded by University Avenue on the south, the Burlington Northern railroad tracks on the north, Interstate 35-E on the east and Lexington Parkway on the west. The neighborhood has suffered serious problems in recent years and is in many ways the most distressed neighborhood � in the city. Indicators of distress in this neighborhood include the following: � - Highest unemployment rate in the city (1980: 9.6 percent vs. 4.7 percent in Saint Paul as a whole) - Highest percentage of families below the poverty line (1979: 19.2 � percent vs. 8 percent in Saint Paul as a whole) - Lowest median family income (1979: $15,090 vs. $20,743 in Saint Paul � as a whole) - Lowest percentage of high school and college graduates (high school � graduates in 1980: 52.6 percent vs. 72.4 percent in Saint Paul as a whole; college graduates in 1980: 5.7 percent vs. 19.8 percent in Saint Paul as a whole) � There is evidence that many of these problems are related to adult entertainment in the following way: concentrations of certain types of adult � �: entertainment near residential areas .� street prostitution, potentially � dangerous patrons of adult businesses � other crimes � 19 � � � Currently, the Police Department maintains that Saint Paul's street � prostitution is concentrated in the area bounded by University Avenue on the south, Charles Avenue on the north, Victoria Avenue on the west and Western Avenue on the east. � STREET PROSTITUTION ZONE "�.' ,oo • � `°'� � ,r,�,,,, )�� I ""'"]DO��OO�I — D000 � ,� � .i� .��.]�0 00��00�0�0❑� � o ` `---� ,� ]�O❑ODO��C700��❑❑ /� � ,n,,,,, �00000�000000❑000D �oo�a�d� �o0000000000m❑❑❑o❑� � o ""'° �o000 .. ❑ao❑oou❑D� � � `""`i o00 ': '.: ':. :: :: '.: .. :: aoo oO�❑�� N � u�wa.^r,,---, ,--+,a...�---..�-�-�.•-,.-.,.--w+-.'-�r-+�--„-7 0[��,nr>•(� 9 �� d � � � � � � d � ,�� ! 0 � � R Police statistics for 1986 show that, out of 279 prostitution arrests at � identified locations, 195 (70 percent) were within the "street prostitution zone" . Moreover, all of the locations with ten or more arrests for ' � prostitution were within this zone. It is further notable that the five locations with the highest number of arrests were on University Avenue, within three blocks of the adult uses concentrated at the University-Dale intersection. � PROSTITUTION ARRESTS IN SAINT PAUL--1986 � (Data Source: Saint Paul Police Department, Vice Unit) Locations of Arrests � Within "Street Prostitution Zone" : 195 � Outside of "Street Prostitution Zone" : 84 279 Location Not Identified: 43 � 322 � Locations With Ten or More Arrests Universit - Grotto: 33 � y University - Arundel: 31 University - Avon: 19 ` � University - Kent: 15 University - Dale: 12 University - Mackubin: 10 � Sherburne - Dale: 10 Sherburne - St. Albans: 10 20 � � � � � . � It is unclear to what extent clients of street prostitutes in this neighborhood are the same people as the patrons of the adult businesses in the neighborhood. Apparently, the two activities are often separate, but occur in the same neighborhood due to its "sex for sale" reputation. Nevertheless, � there is evidence that patrons of adult businesses do pose other types of threats to the University-Dale neighborhood. � Residents in the University/Dale area report frequent sex-related harassment by motorists and pedestrians in the neighborhood. Although it cannot be proved that the harassers are patrons of adult businesses, it is reasonable to � suspect such a connection. Moreover, neighborhood residents here submitted evidence to the Planning Commission in the form of discarded pornographic literature allegedly found in the streets, sidewalks, bushes and alleys near adult businesses. Such literature is sexually very explicit, even on the � cover, and under the present circumstances becomes available to minors even though its sale to minors is prohibited. � Finally, there is an increasingly serious crime problem in the area around the intersection of University and Dale. In 1980, the four police quadrants surrounding this intersection accounted for 5.7 percent of the reported offenses in Saint Paul; by 1985 the figure had risen to 6.1 percent. A - � notable aspect of this situation is that in the two quadrants north of University Avenue the number of crimes increased from 1,091 to 1,211 during the years 1980 to 1985. Similarly, the northern area's share of total � offenses increased from 3.3 percent in 1980 to 4.0 percent in 1985. In contrast, the area south of University decreased its total number of offenses from 792 to 617 during this time period. Its share declined from 2.4 percent to 2.1 percent at the same time. The following map and table contain details � concerning offenses in the four police quadrants surrounding the University/Dale intersection: � POLICE TEAM AREAS IN THE UNIVERSITY-DALE NEIGHBORHOOD � �� ---- � � � �* � y� � �¢ f p�,.. !r ■ ,'t � � --- "` � ,,.,,,.o � + � � . � � �g � � 4 � � �� '"OR . 1�.... � � � �� . .� � i � i � +� �� 88 89 . � ; � ° — ., � � � � i �` �• � P ` r ,!� � � � `~�� K~ � � ' O w� � � � tl �e p � � �e � �s+° y mv�v ` ��* •�aA 1 �� +� y � 4� _-�_ _�`��1 g a�� --- e a = Q �� b� 4 p � i P � * i p P � �`�. � ``�.��.�.�.�..a 21 � � REPORTED OFFENSES IN THE UNIVERSITY/DALE AREA: 1980-1985 � (Numbers in Parentheses — Percent of City Total) � 1980 1981 1982 1983 1984 1985 North of 1,091 1,134 1,177 1,003 1,036 1,211 � Intersec- (3.38) (3.4$) (3.6$) (3.4�) (3.5$) (4.0$) tion � South of 792 811 840 633 580 617 Intersec- (2.4$) (2.5�) (2.68) (2.1$) (2.0$) (2.1$) � tion Total for 1,883 1,945 2,017 1,636 1,616 1,828 � Univer- (5.7�) (5.9$) (6.1$) (5.5�) (5.5$) (6.1�) sity/Dale � � Saint Paul 32,792 33,059 32,971 29,907 29,278 30,050 Notes: - Offenses consist of homicide, rape, robbery, aggravated assault, � residential burglary, commercial burglary, theft, motor vehicle theft, arson, and vandalism. � - Data derived from "Offense Summary Report, 1980-1985" (Saint Paul Police Department, Crime Analysis Unit) - am Areas 88 89 � North of Intersection — Police Te & South of Intersection a Police Team Areas 108 & 109 � The recent decline in crime south of the University-Dale intersection has paralleled a decline in street prostitution in the same area. Prior to 1980, � street prostitution was a growing problem south of University Avenue. For years, neighborhood residents complained that their streets were frequented by streetwalkers and their clients who were attracted to the area by the adult � entertainment establishments concentrated there. By the early 1980s, there were frequent reports of neighborhood women being propositioned and harassed by clients, and of sexual liaisons occurring in garages or yards in the neighborhood. � A key role in dealing with this problem was played by the Aurora-Saint Anthony Block Clubs, an organization of residents between University Avenue and � Interstate 94 near Dale Street. Faced with increasingly serious neighborhood prostitution problems, members of the Aurora-Saint Anthony Block Clubs organized demonstrations in 1982 to make known their displeasure with the � situation. They began shadowing prostitutes and their customers, taking pictures and recording license plate numbers of inen who were frequenting the adult businesses, searching back yards, alleys and garages, and prevailing 22 � . � � upon landlords to evict tenants thought to be prostitutes. The organization � also met with Mayor George Latimer and successfully requested additional police patrols in the area. � Although crime rates are a function of many different variables, it is clear that the actions of the Aurora-Saint Anthony Block Clubs have been an important factor in combatting prostitution and lowering the crime rate in the neighborhoods south of the University/Dale intersection. But as successful as � the Aurora-Saint Anthony Block Clubs have been, their activities also point out the need for a city-wide solution to the problems caused by adult entertainment. The neighborhoods in the Aurora-Saint Anthony area have � experienced a decline in prostitution and other crimes, but there is evidence that much of this activity has simply moved to other parts of the city, often into the area north of University Avenue. Citizen action north of University, - � although vigorous, has thus far been less successful in combatting street prostitution. Overall, the situation near University and Dale has created a perception that � this is an unsafe area to be in. Evidence of this perception has been gathered by the Western State Bank, located at the corner of University and Saint Albans, across the street from an adult bookstore. Although this bank , � is committed to working in the neighborhood where it is located, its efforts to attract employees and customers have often been frustrated by people's perception of the neighborhood. � In 1983, Western State Bank hired a research firm to survey area residents regarding their preferred location for a bank and their perceptions of different locations. A �ample of 305 people were given a list of locations � and asked, "Are there any of these locations where you would not feel safe conducting your banking business?" The results of this survey were that 36 percent said they would feel unsafe banking at Dale and University while no � more than four percent indicated they would feel unsafe at other suggested locations. The details of respondent answers are as follows: � � � � � � � 23 � . . � QUESTION: ARE THERE ANY OF THESE LOCATIONS WHERE YOU � WOULD NOT FEEL SAFE CONDUCTING YOUR BANKING BUSINESS? AGE OF RESPONDENT � 18- 25- 35- 45- 55- 65+ Don't Know/ � LOCATION Total 24 34 44 54 64 Over Refused Dale & University 36$ 46$ 328 338 46$ 33� 388 50$ � Rice & University 4� 0 68 0 0 4� 58 0 � University & Snelling 3$ 0 7$ 2$ 0 2� 1� 0 � Grand & Victoria 2� 4$ 28 0 0 28 1$ 0 � Rice & Larpenteur 1$ 0 0 28 0 0 1$ 0 � None 52$ —46$ 50� 598 54$ 578 47� 50� � NUMBER OF RESPONSES 305 24 82 46 28 49 74 2 � Prostitution and Adult Health Clubs Prostitution problems in the University-Dale neighborhood are land use � problems. That is, they occur on the streets outside of the adult businesses in the neighborhood. A different type of prostitution problem sometimes occurs within Saint Paul's adult health clubs. � Police in Saint Paul receive frequent complaints that adult health clubs in the city are fronts for prostitution. Until recently, this was difficult to � prove because an arrest at one location seemed to activate a warning network which made it impossible to arrest violators of the law in other locations. On December 16, 1986, police confronted this situation with a simultaneous � sweep of the ten adult health clubs in the city where prostitution was suspected. Because of the simultaneous nature of these actions, police were able to take action in nine of the ten raided clubs. According to Lieutenant James Frank, head of the police department's vice squad, "That makes it quite � obvious that we do have a problem." However, it is important to recognize the difference between the nature of � prostitution associated with adult businesses in the University-Dale area and prostitution allegedly occurring in the adult health clubs scattered throughout the city. Street prostitution has an adverse impact on the 24 � . � � � neighborhood in which it occurs but it apparently is beyond the control of the adult businesses which are located in the neighborhood. Thus, a zoning remedy would seem appropriate for this type of problem. In the case of adult health clubs, there is little or no direct impact on the surrounding neighborhood but � prostitution would seem to be controllable by the proprietors of the health clubs. Thus, a licensing remedy would be a more appropriate way to deal with this type of problem. � � � � � � � � � � � � � � � 25 � � � ALTERNATIVE ZONING STRATEGIES FOR DEALING WITH ADULT ENTERTAINMENT � � Saint Paul currently may choose among three basic alternative zoning strategies for dealing with the land use problems associated with adult � entertainment. First, it may retain the current provisions of the Zoning Code. Secondly, it may adopt an amendment to the Zoning Code proposed by Councilman Wilson. Both of these alternatives are variants on a "deconcentration" model of zoning for adult uses. Some cities, including � (recently) Minneapolis, have concentrated adult uses in a single, centralized zone. Therefore, a third alternative which Saint Paul may consider would be the Minneapolis model. � Alternative #1: Retain Current Zonin Code � -Description: The provisions relating to adult entertainment in the current Zoning Code . � were adopted in 1983. Prior to that time, the Zoning Code did not deal specifically with adult uses. Under the current Zoning Code, adult uses are limited to the following zones: � - B-3 (General Business) and I-1 (Industrial) , subject to special conditions including: 1320 radial feet between individual adult uses, 200 radial feet between adult use and any residentially zoned � property (may be waived under certain circumstances) ; - B-4 (Central Business) and B-5 (Central Business Service) subject to � special conditions including: 300 radial feet between individual adult uses, 100 radial feet between adult uses and any residential use. � � � � � � � 27 � • �� .��', �'�� ^ � �_- � � ��►�� s a�� . . �� `� �. � �� i' �� . `.� �q �� / ,�� - ��- ��d....�'_ .., ��`' � ��1 -� .�� 1��« �i ■��■■ � , . ,,,�r ,� r i��'.��ri��11�:.;,,�,,,-� � �� \�� a-�i:y:•:•;::•. ��-=e� ..:,.,.:_--�,�—_ , ... o� ��.. �..�0�� /%`=►``'%'.�,.�� ■ �11�� Ii �s�� . --�..„_...,�---- ' � ,,��■�� .. �,�� ,�� 1-_ ,/ . ' . ,r � �� - _ � � . -�.�. , �� s � ��,��' , � �• � . . .. .. . , , . . . •, ;��•, . � /�\• �.!� �. � �\�1��!;��' `��:. ,� � �� I..� 4� '�.`%.�<�.�'4 �� - ��.�ii.;«� ,�•'�:I�:�tb�,rf,-�,¢; �� _ ��::; � � � /� , � •��,��`�-�:��,�� , . � ��..%:� :�, .�,\��'''� � ,,�;�:�� .��. �� .�..., . `�'�, >' i�i�Ii r• ��f ,��%�:.;''��'�,�,��`�r-��.r..: .�'�,`�'�=� ��.,�',x #� ,.. �,.�:_�` .�.��' �r- ,-. :�---'. �r±A'�� i► ♦ ��r� ♦ , . � �� .� � -Evaluation: � It is difficult to evaluate the effectiveness of these provisions because, technically speaking, no new adult businesses have legally been established � in Saint Paul since 1983. The intent of the current provisions is not to discourage the establishment of adult businesses but rather to protect citizens from the land use impact of such businesses. (Note: The City maintains that the Playboy Lounge began operating illegally as an adult � establishment after 1983. This claim is disputed by the owner of the business. Also, several bars have begun offering live adult entertainment since 1983, although several other bars have ceased to do so. The Building � Department does not currently interpret bars to be "adult uses.") However, there is indirect evidence that the spacing requirements of the � current Zoning Code may not be sufficient. Under the current Zoning Code, three adult businesses at the University-Dale intersection are legal nonconforming uses. But if no adult businesses existed nearby, .there would be land southeast of the intersection that would conform to the requirements � of the current Zoning Code. It is plausible that a large entertainment complex in this space would create the same conditions that have brought problems to the neighborhood in recent years. � LThe neighborhood around the University-Dale intersection currently suffers the most serious land use problems associated with adult uses. The large � market for adult entertainment created by adult businesses has apparently also created a market for the services of prostitutes. These prostitutes avoid the premises of the adult businesses and instead work the streets of the surrounding residential neighborhoods. If, as is possible, a large � adult entertainment complex southeast of the University-Dale intersection were to create the same problems, one might reasonably conclude that a larger buffer zone between adult uses and residential areas is required than � that now specified by the Zoning Code. Alternative #2: Wilson Proposal to Limit Adult Uses to Industriallv-Zoned � Districts -Description: jThe proposed amendment to the Zoning Code would limit adult bookstores, adult movie theatres and adult live entertainment to the following zones: � - I-1 and I-2 (both Industrial) subject to standards including: 1320 radial feet between individual adult uses, 1320 radial feet between the adult use and any residentially zoned property, 1320 radial feet � between the adult use and any residential use, 1320 radial feet between the adult use and any protected use (house of worship, day care center, public library, school, public recreation center and � public specialized recreation facility) , 50 radial feet between the adult use and any retail or service establishment dealing directly with consumers. � - Note: adult bookstores, movie theatres and live entertainment would no longer be permitted in B-3, B-4 or B-5 zones. � 29 � � WILSON PROPOSAL: AREAS WHERE ADULT USES PERMITTED � - ---- �,.,.` � ----- �s � }y, 3 � �\ ...? 3 g�p d�� I�'� ,., f --- � � » R � „ `*a l' � ' 4 � 6 x �. '� ""`� ��..�.. s ?'R"�.,, � � � � � 4 Yt �{ � S t �waa�. � Y � € � `\ � � � � � !'/° x�'R� � �,11( � � F � 4 S ` . �;'� � s � $ , J9 B � � :;! '° �'�` `� 5 . � &�� 11i�. X wvo.a�w 5'� � 6� . �� Y�,� 4...�� ` y � � A S+��n � � (� � w� " ! p � m �� , a �^ "'""""' ' ""`.\` I � � 9� ■ 4 A ( Z s �� t 4 .om.. rp ^ /j./ `.1L,\ v� ` `�`< /'I� G � � /, \� _�: ,�� ,Q_�__ _ . CHARACTERISTICS OF AREAS � ELIGIBLE FOR ADULT USES UNDER WILSON PROPOSAL Acres of Street Frontage Absolute Relative � Area Land (1) (Feet) Site Capacit� Site Capacity (3) 1 7 0 1 0 , 2 100 16,400 7 5 3 2 0 1 0 � 4 3 0 3 17 � S 1,040 51,000 32 17 Total 1,152 67,400 44 22 � Notes: (1) Acreage estimated usingllBruning Areagraph (90 percent accuracy) . � (2) Absolute Site Capacity — number of adult establishments that could fit on the land within the limitations of the Wilson proposal; calculated without regard for existing infrastructure, � existing development, or suitability of land for development. (3) "Relative Site Capacity" = number of adult establishments that � could be located on existing street frontage within the limitations of the Wilson proposal; calculated without regard for existing development or suitability of land for development. � 30 . � � � -Evaluation: The key feature of this proposal is the expansion of the buffer between adult uses and residential properties from the current 200 radial feet � (outside of the Central Business District) to 1320 radial feet. This proposed change squarely addresses the problem with the current provisions mentioned above. That is, it deals with the fact that the current spacing � requirements could permit a situation similar to that currently experienced in the University-Dale neighborhood. The Wilson proposal would lessen the likelihood of this occurring in any residential neighborhood by greatly � increasing the spacing between adult uses and residences. The size of the buffer zone (1320 feet � 2 1/2 blocks) is appropriate in light of a nationwide survey of realtors which indicated that the negative impact of adult uses declines significantly at a distance of three city blocks (see � page 15 above) . Although it is somewhat unusual to confine a particular type of commercial � facility to industrial zones, there are good reasons for doing so in the case of adult uses. First, adult uses are similar to some industrial uses in that they have a negative impact on the residential environment and are thus incompatible with residential uses. Secondly, it is only within � , industrial zones that a 1320 foot buffer zone between adult uses and residential uses can be created. Finally, there is already an analogous situation in Saint Paul's Zoning Code. "Mission type uses" , although � essentially temporary residential facilities, are permitted as a principal use in I-1 zones [Zoning Code, 60.612 (22)J . � A possible problem with this proposal is that even 1320 feet (2 1/2 blocks) might not be sufficient to prevent "spillover" completely. Indeed, according to the Police Department, the prostitution that now centers on Dale Street extends for eight blocks from Victoria Street to Western Avenize � (i.e. , four blocks on each side of the University/Dale intersection) . Nevertheless, 1320 feet is close to the maximum buffer that could be created in Saint Paul. If the buffer were expanded much beyond 1320 feet, no � feasible sites for adult uses would remain in the city. This proposal also involves a tradeoff. The city would gain larger buffer zones between adult uses and residential uses. But in return, the likeiy � locations for new adult businesses will be confined to two or three parts of the city. Under the current Zoning Code, there are a variety of permitted sites that could be attractive to proprietors of adult establishments. � Under the Wilson proposal, one area becomes particularly attractive relative to other options. The stretch of University Avenue between Transfer Road and Pillsbury Street is an area which, although industrially-zoned, is � partly a commercial strip. One might reasonably expect that a proprietor of a new adult establishment would try to locate there if the Wilson proposal were passed. Other relatively attractive sites could be found north of University on Vandalia Avenue. � The magnitude of the above tradeoff should not be exaggerated, however. During the past ten years, the number of adult businesses in Saint Paul has � steadily declined from 30 in 1977 to 24 in 1982 and 19 in 1987. Thus, market trends suggest that there will be few new adult businesses established, regardless of whether or not the Zoning Code is changed. � 31 � � . - � Moreover, the Wilson proposal offers some real benefits even to the neighborhoods close to the University/Vandalia intersection. The Wilson � proposal would ensure that any new adult establishments would be considerably farther from residential areas than is the case under the current Zoning Code. A corollary of this fact is that the Wilson proposal � could make it more likely that a smaller number of adult businesses would locate at the western end of University Avenue. Under the current Zoning Code, the western portion of University Avenue provides numerous relatively � attractive, legal sites for adult businesses. Currently, adult uses could locate virtually anywhere on University Avenue between Fairview and Saint Paul's western city limits. The Wilson proposal considerably limits the number of possible locations in this area. � The Wilson proposal would permit adult uses on a total of nearly 1,200 acres of land in Saint Paul. However, under this proposal, several factors would � likely discourage future adult uses from locating anywhere other than in the area around the University-Vandalia intersection. In general, much of the land either has low development potential or is already devoted to well- � established, high-value facilities. The following is a summary of some of the relevant features of each of the areas delineated in the above map and table: . � Area 1: Includes part of an industrial facility located largely in Minneapolis. No street access from Saint Paul. � Area 2: Includes commercial facilities along University Avenue and warehouse-type facilities along Vandalia north of University. Area 3: Part of Ford Motor Company plant. � Area 4: Mostly wetlands. � Area 5: Largely consists of the Saint Paul Downtown Airport, the Metropolitan Wastewater Treatment Plant and the Riverside Industrial Park (lease control by the Port Authority of Saint Paul) . Land north � of river approximately coincides with the route of a proposed new road (East Central Business District Bypass) . � As the above description suggests, there is actually a continuum of types of sites available for adult uses under the Wilson proposal. Some could be � obtained fairly easily while others could not reasonably be obtained in the near future. In particular, two large portions of Area 5 would not likely be available for alternative development in the short run--the Saint Paul � Downtown Airport and the Metropolitan Waste Water Treatment Plant. The land occupied by these facilities is illustrated in the following map of Area 5: � � 32 � . � � PORTIONS OF AREA 5 ELIGIBLE � FOR ADULT USES--EXCLUDING AIRPORT, WASTE WATER PIANT �� t ,;�� `F �� -- —��4 - -- _ _ " `�� r `.� r�- _ - _ �� ' � ., ' _ _ _ _ �. `; i :... .i �; . '�°_ � �C : . � � . .�� l_ �_: o .� k e..�_� ...�_ e_ �.�'�'-" _ . : • ,! �o .,.e . - ._ .. _ -- -.i -.. � 1 . `- Y� .-iAk ' � Q.. ` i ' . .—.' . '��-- � .�. (_��>� �` � 4�+�}� �� i,�;��—�� "'�_ -�'�'��-5' _ � , . q -F�Gy�_,` �'�� .�s`'�a -= =�" A�� ' -, . � Y', .. ' `-- - _ �•� °�: ..'� '�.a,��,. � ,.r� o/ ° _�. __ "F i�—� 1 . �� ..`� .%/� � �'i \�� _ ` �i.0�''�`�.1 y��'-/!/ i \ �r' �',� .�- --� - �� - �. ' ` ` , . . . . � ..� . . , ...— _ � ._ ..... ._ —r � � � .. ,�+4.. �'t "'.!✓` ��J ... _ aL. ' . � � /� �� O �5��i"� `�°�,� � y �-•�� . . ^`. ,��, ' .•'' ��f ... � � _r ��Va -� � • — 7 +� , �:. �� .� -° �,• ``' . .. � _'_� � , �� 1.� , �C�-� � " `.�`T �t -.— ._� ;`•� ��.fU° �� t � /i -.--- � � �\i �� _\� � � �,n.. ' _.._ . . � \\\` /,' E :� .�� __� .:�:�. ;� � , ' /.�;-f �_ � . - f ..:,,� ' -- �"� F ,� � � _� �..� A C � .�f = a � _ � �_� - .�� - \�. %�� _�; �,- �� ' � _ v 1 � '� Z? _ ��-,.� �i r � \�— ��. _ __ +� � \ � \ :,; � � .��=-- - ' � �� P' �.. � � �L� fi� #� �� , ` �, . '.�= 3'- �'��/` t , �?� - e ?� \ W r �/�� ` � .� ��-s�� _r�`�~= L�� .� `�' J � � .E:�;�� L� -�,,., � .��L�`�,�� --�'� -�,� . � - . , ..... --�a �.�:�..��__._—!_�-t`....... �.r—• ._.....r-= -:��` � A: Airport W: Waste Water Plant � It should also be noted that Area 5 would be diminished if, as is expected, two other substantial zoning changes occur in the near future. First, the likely rezoning of some riverfront land for residential purposes would reduce � this land area. Secondly, proposed safety zones for the airport would prohibit development near approaches to the runways. The following maps illustrate what these changes would involve: � � � � � � 33 � � � EFFECT OF OTHER ANTICIPATED ZONING CHANGES . .... ._ � �� " , i i�,�F� `� �N} � `'} _` ��-F- -3� ,�-�c � � � � , �` s �L� _.. � ' '' � � �0 — - �r . � � �� i- — -- _. � �-�� :id�, �.; a. .� ,�.. , �`� `�-,a �-- _ — � � � / i � _g_°. s. o° . � � �.��3--� -a-- �� } . ; ` � � �� R i • �:d� f�„ �1--� � �i� �_ �� . �} �r � �i �-� ��/,� �A'�� : � 6�I� - — f l�" � � ' J��.`�.�\ �`Fi�� :�m�?'t � ''�r _ � �l—._ —y��_�T r- ..` _.. a � F � � '= � a�./ 1 v � ��--- 0'Q�] v ��4 �w ��. " .. ' �� tl� �-� Q� r�:. `�r ~ ��' �, ��\�l�;� _ �! !'4y m+'� --� �-�� ?� -' �J , , _ • ,,:' � ��\V�v,f Q�?'+� .'� "� _ _�` �� I Et �".d :� - ' —. �,�! � --- � ..n ,�o_�-�- , - _ ^ ,��_ �<.-� ��',��-�� ._ , . .�' ' . , � , � ` �� r '�, �-�� AREA 5 ,Or/�, " � F . \\ � BEFORE - . �' ��-�� , � � � i� �` �� ,��'` � : ,,� r .. �; � ��.,. � -- -� ��: i /� ,�,.. ,t,r- �k' _�` .� � �s— �../ -. _ , _�� y: �Qk-f — ... _�� -T� \� 1�L._= ,� .. � -- � - sL�'7� v .�,I; .; 1•_ � L � e �_ � LT� _� i� �-_ � �' -� �,a � _— .�'- �� -� _�. , -� � � � _ � t��_ � . � I� i • 1?� �� _ _�3� _ ��V i `� �� r I-�� s � ,�`�� E ��, 6; � q� ' ' �- -V -u� - � ' � ..iL�3��' ��-�� _—�i a ..._._ a ,\"� • � � !�. �� -'-----------'----------------------------------------------- - - - -'----------- .. � ._ �a� — — �_ � - � - - ��_-- ri `� ,� �„� �,f � �— --m--� � -�� -� .. l . �a . �_ ��&- '�r... � __. _ Sr'� > .. i - - `� <' ��• k � �, a t r�-°�''`. -_ �_.�� ---- �c, __- -r - : , � � �1 . =f11�k� '�;+ _ . .3g��;� 4,`�� —o,� '� �— �� ... _. 0.�3 � �� Y �J. � 5��+� s�s^'� `y `^ �� --�" �._ - _ � �. 4 ��"°-� -� ,d , : � � _ �- ^ _ _..: ` ,�'--� �� /a" �� .�'�d""�,`o- — -�(-! � .''0--� /r \ � ' .,:J�\ ., _ ..�� — � � ,r' F - � � . . ped �� 9' 4 . . —� r 1—� _.�•�\�� :t,,'�G �/�r�I � .�\.f_3,—. --- �- _ . rA �/ � \ —> � —� ��'9a��..��j� '✓ ,.• � p\l �'EN�� S , q��, ...._. �l u.� �' ,��i'j ,�., .♦ �q��. ". -��j.,�� —�� — � � ___ . > . ,��,�1>>9�� - �� - � -� -- Q . �.i ..�' , "�r� � � � ,�; >� , ' ` ' . = - ' . ��*.��{S ��v 4� _�, ��'�..�,; ... 1 ;�\ Y �' �c�7�� - ' � � 1 1''�I�1. , � �:% , � _. -_ � .�� ''F� AREA 5 � �° �� ✓` � �\ - - �',�°' �� "�- �;i"' ° ° -__ \ \ - _� AFTER ..J, � � �-- � �; / � ..: �z� \� ��`- ��,�.� � ,� � �� ,;,,�`,',� v ,,� , � �R° . �t ��_ ��.a � --, , �� r �os�'✓b �� l�_.` `�\ � 1 -- -�r- S-tiC—ac�-��•'�'t- �`�` � � �`� ....� -i / � �� JC�� . � �� .. z i �,�G_�` �� .: ;, I'� � � ��— — �� `' � � _� �, _� ��= �,—�� t 3� - i� r- '�Y�� FLC ��E �� ..•. I3 = r,:� �� -� ., °'� �7-�_�r`� t�-,,.., --� `�L. '�i�- _�", _ ' � � -- _ Y��''��r�� t- '3t,.«.��— " ��s.� . � � 1\ \� 34 � � . �� -� i In short, it is a complex matter to summarize the total land area potentially � available for adult uses. No single answer can be provided because eacH answer is relative to certain assumptions. Thus, the following summary table provides four estimates based on four different assumptions: � Total Absolute Relative � Available Site Site Acres of Land Capacity Capacity (1) �2) �3) � Including airport, No other rezoning 1040 47 23 waste water plant � as eligible sites Other rezoning 520 24 15 � Excluding airport, No other rezoning 686 31 18 waste water plant as eligible sites Other rezoning 226 12 10 � � Notes: (1) Acreage estimated using Bruning Areagraph (90 percent accuracy) . � (2) "Absolute Site Capacity" = number of adult establishments that could fit on the land within the limitations of the Wilson proposal; calculated without regard for existing � infrastructure, existing development, or suitability of land for development. � (3) "Relative Site Capicity" — nwnber of adult establishments that could be located on existing street frontage within the limitations of the Wilson proposal; calculated without regard for existing development or suitability of land for � development. � Alternative #3: The Minneapolis Model--Limit Adult Uses to Portions of the Downtown Area � -Background: Several American cities have chosen to remove adult uses entirely from proximity to outlying residential neighborhoods. This can be done by � limiting adult uses to all or a part of the Central Business District. Boston's "combat zone" is the first and most famous example of this strategy. More recently, Minneapolis has limited many of its adult uses to � its Central Business District. Minneapolis' approach to adult entertainment is especially relevant to Saint Paul due to the geographical closeness of the two cities. � . � 35 � � I- � • • c �• � � � i • - _ � • • : � • � ' � - - n- � u' • � � • � • •� - • - . • - • � • • - • _ � - _ � � - - s • • � � ' - : n- � n - n - • . � - • • • _ . - i _ . - 111 - - • • - • - . . . 11 - • - . • - • - . - . . - • . . . • • . . - _ . - . - - . . . - n - . • i- _ • - n. • • - 1 � - • - u • � � - � . • � • � - u: r � - - • • - : � • . . - . ' n- 111 - - • n - . - • - • . 11 • u . • - - . - . • - • : � . � . n -� . . . - . . • . - n. . . - � - - n- - - ' � - • n -i • - - - 1 � - ns � : � : � • : • � • '• • 1 • ��,1��J k�S�=\`�,\ `/ �V��p��'I � ��.��,�\�r� �� ' �3a'hj � �ff LE in�_' �`�� ` 1' \� � i ��p. y"L�V ��i� �%► __-°c�i i��!�Gi �� ..��i / �y __= p �i�Gi �� j� \ � v^�-��L \\��Fj9� n11►�i��jGj��i��G, Si�! � E"a� ��'1/�� J' i�� _ ��r��p��p�i��i ,� �� ,i�-��. � ', ��iyi�- .�i�i��ii/��i�o'��o��i� ��s1g�► ��P�``��: . �-illllll.11l IIII I��1��/ii:,��//i��%�'��/��\ ��i/G,��, r .��Q�`� '� �,.�t.' �,^.N" Wn.;� i r i G' r ,. 'IIIIIIIII��%'i j�i��i��G��i,��ii� ..' `��,j�/��/�, . ►:��- � t, �n m-•a, u�u�w u,i i� i�c ��o q �S i� y y. }`� .��IIII�Ai�ii,��/q� Sj�� °i I . /�yj�!(•� ��. , �� y : b�i .'■7\ ��!�i:� �,�, ��'i��i�i i,'�� o �� - �11�,�� ,,�`i��y, �,.+�/��' �,, � �. �,�i��i�,'11�'i h¢ ��/'��.1. r�. � �N � �t/:i� ii � I�.�al' ��i'''`,�Gp�� rA � /'' ` � : p'-;�'��'Nui=��/d',�sai',\�'`g,�'��!�� :...�� ty ��/'/�\�Y \\_ � �I�� 1 li Fa.mnu '� � �OQ s ��f/ � ♦ I� �� win�nun uu �� O� .y n, . � � � � ii ♦ i ��. � r� uu nnu' � .� � p � i �•.�. •• �u �� o�p� ��i� ,/;i <� .,�ii �i yi \�� ;_�� i�un nuu mm_.. .-�� s ir �i �. i �i _ IIIIII H IIiIM I ,I +x�'`��p'.�°��I y�ri '• 1��7�i��•�� ```� • umu°°i nim mui�iii��O��i��iE�� i�� . 1�, � .,,�r� w�,�� unu imn iin ,• ._,4i... i.,, i,<iiiti�i i �i �,, �r.�1N� �u„ ,�p � `�9j�� i.�;�q�� qi��,�� ,�X�:.�0 .;� !. �i��el+�,�'„ ei0: �V�� Iij`�,iyi o� U �i /i, .,,�1 ��p0 .��ir., ij�• i��i� �ii�i,,� ,. ,,� t�,., ��m��T�ir +��Qy�i�� y��:i�i�i�� i r �:ip�hi� #�..= �� I 4ii' ;iir p �i4� �l"'il��, /�4 ��i ib i�i 3��- � >. �� .� �ii.r �,,fc, ii b <��ii� �i ' , � ��(•i:•♦ `>io '_. ip� g�Y��,/;j!�4��r�j��. �uiw�r• ,�N�� , . i,. i�; .y� iy i ��ji�� ij�i� � � ♦ 1I/-!:,' ,�i.A 4/Ii.�L �/i..0 �i /i -�� I O`>.y�' ��: �'�ai� ��i y� ii ,,i !i� �i/ .�•.i i�ii�� \ p) ��\ eill '(�'! // i3' G // . /��/�,�� _��.91�0�� 0�� .4�// �4 �/4 ��'r ��/ ��i ��i��' �� ✓ ��"� I /ijU •!� /// �9/� � �� A��/%/�i/��I�'�i `•'�::��o �' i� ii i��ij/i '' ��`" ij � i� �i �i j �0�' )��., �� I/ P�h //�� ////�1//e ��i1.�.,r�i� �� Q% Q/��I �/ .l ��'C��.� ,,�/ �/Q� �I'jy ti��fj� /)�� r,�/.`l��`` /Q�/� �/�� r. O`:n / // �� \�:I� / '\Ijy// "•�)/�� 2�d II'��:�%%t��'//'��/% Inii:��M//� _ ---��/,I/ :��. r.ii ��:%is. �� `3„'��0 ��I= � ��/i :1111 c=1ac ■�ig-;_-r-_-.T��D,�1 .J:�.�4 ��Ilr,/�\/ ��, nllr -� _-`� �4 ' _�� III��R�i�rtl-tiL�i i�al�l.l! ��/!/� �� 1-_. � ii�ii: 1yq ' �/ .Wnn�i� =� -_� � � � - �� ),_°� �-!�i�i� ��/ii1 Ul�..�.� �� -___'-�'=�r� y 9n�n- al��L .. �-�._%/. I ♦=!qir,•I�w - __=v�C�-c.1=F.�� ■IIIII-�i��iii�l��i_�4��/ . • • � : � • - �- " • " - • " • � • • � . ' . � -Evaluation: The newness of the Minneapolis ordinance makes it impossible to evaluate its impact on the city. Nevertheless, the following comments may be instructive � in determining whether or not a similar ordinance might be appropriate in Saint Paul. � Although the Minneapolis ordinance is similar to the Boston approach, it differs in the degree of concentration it entails. The Boston "combat zone" is a two-block area with a high concentration of adult uses. In contrast, there are over 100 blocks of downtown property where adult uses can locate � in Minneapolis. Moreover, the Minneapolis ordinance retains spacing requirements which will lead to a certain amount of deconcentration, even in the downtown area. � Despite the attraction of this approach, there are several differences between downtown Minneapolis and downtown Saint Paul which should be � seriously considered before deciding whether a similar ordinance should be adopted in Saint Paul. First, downtown Minneapolis is substantially larger than downtown Saint Paul. Second, Minneapolis seems willing to cultivate a core of upscale development along the Nicollet Avenue spine and to permit � blighted land to exist on the fringes of the Central Business District. In contrast, Saint Paul has in recent years sought to balance development between the core and the periphery of its downtown. Moreover, many of the � activities in downtown Saint Paul consist of housing or public facilities oriented toward children and minors (e.g. , the science museum on the north side of downtown, the public library and Rice Park area on the west side of downtown, and the newly-developing riverfront area on the south side of � downtown) . In short, downtown Saint Paul seems less able to absorb a concentration of adult uses than does downtown Minneapolis. � i 1 1 � � � � 37 � � � � d' � �`7C��j � � CONCLUSIONS AND RECOI�II�IENDATIONS � Conclusions � On balance, the Wilson proposal is the best of the three alternative zoning strategies. Like the current provisions of the Zoning Code, the Wilson proposal uses zoning districts which already exist in the city and applies spacing requirements to adult establishments within these districts. The � Wilson proposal is superior to the current provisions of the Zoning Code because it increases the size of the buffer between adult uses and residential uses and thus provides more protection to the city's neighborhoods. It is � also preferable to the Minneapolis model because Saint Paul's downtown is not readily able to absorb a concentration of adult uses. The Wilson proposal also contains a feature that would be appropriate under 1 any zoning strategy. It advocates changing the basis of Saint Paul's definitions of adult uses for zoning purposes. Currently, the Zoning Code defines adult uses in reference to activities which are off-limits to minors. , � The Wilson proposal incorporates definitions related to the portrayal of certain "specified anatomical areas" and "specified sexual activities." There is solid legal precedent for this type of definition; indeed, the landmark � Detroit adult entertainment ordinance contains this type of definition. Moreover, the change is �ustified in Saint Paul because some sex-oriented businesses have opened their doors to minors, claiming that some of their materials are for a general audience. The change would also make it clear � that bars with live adult entertainment are to be treated as adult uses. The change would thus close several loopholes that are currently exploited by proprietors of sex-oriented businesses. . � Working with Councilman Wilson, concerned citizens, and members of the Planning Commission, staff has also generated the following refinements of the � Wilson proposal: Adult Health Clubs, Massage Parlors and Similar Establishments. � The expanded spacing requirements should not be applied to adult health clubs. Saint Paul's adult health clubs have a minor land use impact and thus the standards of the current Zoning Code are ' sufficient for these businesses. Many cities regulate different types of adult uses in different ways. For example, as noted above, Minneapolis permits adult massage � parlors, rap parlors and saunas in the city at large but limits adult bookstores, entertainment centers and movie theatres to the Central Business District. Similarly, a number of other cities regulate only � such establishments as bookstores, movie theatres and entertainment centers, or apply stricter standards to these establishments. � Such an option should be adopted in Saint Paul as well. The greatest neighborhood problems associated with adult uses are indeed in an area where there is a concentration of two adult movie theatres, one adult bookstore, and one bar with nude dancers. In contrast, few land use � 39 � . • ' � problems are associated with the ten adult health clubs in Saint Paul. � Out of nineteen adult establishments in Saint Paul, ten are health clubs. If the City would concentrate its more stringent zoning remedies on the other nine establishments, more could be done to deal with the most serious land use problems in Saint Paul. The problem of � prostitution within adult health clubs can more effectively be addressed by licensing. It should be acknowledged that, while it would be useful to bring � adult health clubs under the control of licensing, such an action would not necessarily close all undesirable loopholes. An � establishment determined to provide prostitution under the guise of a legitimate business could simply declare itself to be a different type of business not requiring a license (e.g. , a men's club) . Short of requiring all businesses within Saint Paul to be licensed, it would � likely be impossible to close all licensing loopholes related to adult entertainment. Nevertheless, it can reasonably be expected that some adult health clubs would opt to provide licensed "adult massages" and � that such licensing could be used to ensure that prostitution does not occur in these businesses. - Other Protected Uses. � In addition to residential uses, several other similar uses should be separated 1320 feet from adult bookstores, movie theatres, and � cabarets. "Protected uses" should include houses of worship, day care facilities, public libraries, schools, public parks, public playgrounds, public recreation centers and public specialized � recreation facilities. One rationale for zoning to control adult uses is that such zoning shields children and minors from adult entertainment and from harmful activities such as street prostitution that often are found in the vicinity of adult businesses. The � category of "protected uses" will help protect children and minors outside of the home as well as in their places of residence. - Commercial Uses � A 50 foot buffer zone should be created between certain commercial uses and adult bookstores, movie theatres and cabarets. Protected � commercial uses should consist of retail and seryice businesses dealing directly with consumers. . � Recommendations l. Restrict adult bookstores, movie theatres, cabarets and similar � establishments to I-1 and I-2 zones. Rationale: Saint Paul's Zoning Code currently has three zoning districts � primarily intended for industrial uses (I-1, I-2 and I-3) . All three districts are for land uses which are usually incompatible with residential and most commercial uses; I-1 is for uses which are least � incompatible while I-3 is for extremely incompatible (even hazardous) uses. Like many industrial uses, adult uses typically have a negative impact on residential and commercial uses. There is precedent in the � 40 . � � ,y Saint Paul Zoning Code for confining certain non-industrial uses to � industrial zones--"mission type uses" are permitted as a principal use in I-1 [Zoning Code, 60.612 (22)J . � 2. Require the following spacing and distance requirements for adult bookstores, movie theatres, cabarets and similar establishments: 1320 radial feet from other adult uses; 1320 radial feet from residential zones and 1320 radial feet from residential uses and "protected uses" (houses of � worship, day care centers, public libraries, schools, public parks, public playgrounds, public recreation centers and public specialized recreation facilities) ; 50 radial feet from retail and service establishments dealing � directly with consumers. Rationale: Numerous studies have shown that adult uses cause problems both when concentrated together and when in close proximity to residential � uses. The distance of 1320 feet (one quarter mile; 2 1/2 blocks) is appropriate in light of a nationwide survey of realtors which indicated that the negative impact of adult uses declined significantly at a � distance of three blocks. The category of "protected uses" is appropriate because it consists of uses frequented by children and minors, often without the accompaniment of a parent or guardian. The 50 foot distance , � requirement between adult businesses and other retail or service establishments is apropriate because there is evidence that commercial property values are harmed by adult entertainment and because such commercial uses may also be frequented by minors. � 3. Retain the provisions of the current Zoning Code for adult health clubs, massage parlors and similar establishments: � - B-3, I-1: 1320 radial feet from other adult uses; 200 radial feet from residentially zoned property; . � - B-4, B-5: 300 radial feet fram other adult uses; 100 radial feet from residential use. � Rationale: In Saint Paul, as in many cities, adult health clubs are not associated with land use problems as serious as those connected with adult bookstores, movie theatres, cabarets and similar establishments. � Specifically, adult health clubs are not significantly associated with street prostitution and related crimes. Thus, a less stringent zoning remedy should be applied to these businesses. � 4. Define adult uses in reference to certain specified sexual activities and specified anatomical areas. Currently, adult uses are defined in reference to activities which are off-limits to minors. � Rationale: The current definitions have created undesirable loopholes. Some businesses with large selections of sex-related materials claim not to be adult uses because they are not, as businesses, off-limits to � minors. The current definitions also cause bars with adult entertainment not to be regarded as adult uses (because bars are excepted from the definition of "adult uses") . � � � 41 � . � � , 5. Revise the licensing provisions in the Legislative Code, Chapter 412 � (Massage Parlors, Saunas, etc.) to include adult health clubs. Rationale: Licensing can be used to regulate businesses to ensure that they do not engage in illegal activities. Currently, adult health clubs � are not required to be licensed because they are not regarded as offering "massages". If adult health clubs were licensed, City officials would be better able to ensure that prostitution did not occur on the premises of � such businesses. � � � . � � � . � � , , � � � 42 � . � � � ' PROPOSED AMENDMENTS TO ZONING CODE � � Section 1. That Section 60.201. A. of the Saint Paul Legislative Code be and is � hereby amended as follows: � Adult bookstore. A shop for the barter, rental or sale of items consisting of printed matter, pictures, slides, records, audio tape. videotaQe or motion picture film, if such shop is not open to the public � generally but only to one or more classes of the public excluding any minor by reason of age: or if a substantial or s�nificant portion of such items are distinguished or characterized by an emphasis on the deQiction or description of "s„pecified sexual activities" or "snecified � anatomical areas." Adult cabaret. An establishment which provides ge-ge-daaee�s;-exe��e . � �eaee�s;-s��i��e�s;-e�-s�m��a�-ea�e��a�ae�s dancing or other live entertainment. if such establishment aad-wk�ek excludes minors by virtue of age: or if such dancin�or other live entertainment is distin�uished � or characterized bv an emQhasis on the performance depiction or description of "specified sexual activities" or "svecified anatomical areas." � Adult conversationLrap varlor !� conversation/rap parlor which excludes minors by reason of age or which Qrovides the service of en¢aeine in or listenin��to conversation talk or discussion, if such service is _ � distin�uished or characterized by an emphasis on "svecified sexual activities" or "specified anatomical areas." Adult massage parlor health club. A massage parlor or health club � which restricts minors bv reason of age, or which provides the service of "massa�e " if such service is distin�uished or characterized bv an emnhasis on "specified sexual activities" or "specified anatomical � areas." Adult mini-motion picture theatre. An enclosed building with a capacity , for less than 50 persons used for presenting material de€�r�ed-by M�aaese�a-S�a�x�es-6�7:29�-as-"sext�a��y-g�eveea�}ve"--agd-wk�e�i if such buildinr� as a prevailing practice excludes minors by virtue of age,, or if such material is distinguished or characterized by an em�hasis on the � depiction or descrigtion of "specified sexual activities" or "svecified anatomical areas" for observation by patrons therein. � Adult motion picture theatre. An enclosed building with a capacity of 50 or more persons used for presenting material �e€��ed-by-M�aaese�a S�a�x�es-6��:�9�-as-"sext�a�ly-g�eveea��ve'1_a�►�_wkie�i if such buildin� as a prevailing practice excludes minors by virtue of age, or if such � material is distinQUished or characterized bv an emvhasis on the depiction or description of "sQecified sexual activities" or "svecified anatomical areas" for observation b�patrons therein. � 43 � � Adult sauna A sauna which excludes minors by reason of ase. or which � provides a steam bath or heat bathin�,room used for the vurvose of bathine relaxation or reducing utilizin�steam or hot air as a cleanin� relaxing or reducing agent if the service vrovided bv the � sauna is distinguished or characterized by an em�hasis on "specified sexual activities" or "svecified anatomical areas." Adult uses. Ad��-t�ses-a�e-�kese-t�ses-exe�xd��g-ba�s-wk�el�-a�e-xe�-epex � �e-�ke-grzb��e-geRe�a��y-bx�-ea�y-�e-eae-e�-�e�e-e�asses-e€-�ke-pxb�}e axd-exe�xdi�g-aay-��ae�-by-�ease�-e€-age;-a-ffi�ae�-be��g-a-ge�sea-�Rde� �ke-age-s€-e�gk�eea-yea�s: Adult uses include;-bx�-a�e-ae�-��ffi��ed-�e; � adult bookstores, adult motion picture theatres, adult mini-motion picture theatres, adult massage parlors, adult saunas, adult rap/conversation parlors, adult health clubs, and adult cabarets, e� � s��a�-adt��-t�ses: and other vremises enterprises, businesses or places open to some or all members of the public at or in which there is an emuhasis on the p,erformance depiction or descriution of "svecified sexual activities" or "snecified anatomical areas" which are cavable of � bein�seen bx said members of the vublic. Section 2. � That Section 60.203. C. of the Saint Paul Legislative Code be and is � hereby amended as follows: Conversation;Lrap parlors. An establishment ��eeased-by-6kag�e�-4��-e€ � �ke-6��y-A��saaee-aad advertising, offering or selling the service of engaging in or listening to conversation, talk or discussion be�weea-aa emg�eyee-e€-�ke-es�ab��sl�ea�-aad-a-et�s�effie�, regardless of whether � other goods or services are also simultaneously advertised, offered or sold, and regardless of whether those other goods or services are also required to be licensed. � The term "conversation parlor" shall not include bona fide legal, medical, psychiatric, psychological, or counseling services by a person � or firm appropriately licensed; or bona fide educational institutions, or panels, seminars or other similar services offered by such institutions; or churches or synagogues. , Section 3. That Section 60.213. M. of the Saint Paul Legislative Code be and is � hereby amended as follows: � Massage parlor, sat�aa; health club. An establishment �ieeased-by 6kap�e�-4�2-e€-�ke-63�y-�.eg�s�a��ve-Sede offerin�"massa�e" defined as the rubbing strokin� kneadin� tap�in� or rolline of the bodv, for the � exclusive vurposes of pleasure relaxation, vhvsical fitness, or beautification and for no other purposes offered for a fee or other 44 � � , valuable consideration aad-Wk�ek-�es��e�s-��e�s-by-v��e-e€-age and � including physical culture and health services, physical culture and health club, reducing club, reducing salon, and massage parlor. This definition shall include any building, room, structure, place or establishment used by the public other than a hospital, sanatorium, rest � home, nursing home, boarding home or other institution for the hospitalization or care of human beings, duly licensed under the provisions of Minnesota Statutes, Sections 144.50 through 144.703, � inclusive, where non-medical and non-surgical manipulation exercises or massages are practiced upon the human body for a fee or other valuable consideration by anyone not duly licensed by the State of Minnesota to � practice medicine, surgery, osteopathy, chiropractic, physical therapy, or podiatry, with or without the use of inechanical, therapeutic, or bathing devices, or any room or rooms from which a masseur or masseuse , is dispatched by telephone or otherwise for the purpose of giving a massage. p�ev��e�-��a�-ae-�assage-€e�-a-€ee-s�a��-be-g�vea-exee��-�a-a }�eease�-��e��se: � Section 4. , � That Section 60.219. S. of the Saint Paul Legislative Code be amended so as to add the following: � Sauna An establishment providin� a steam bath or heat bathine room used for the purpose of bathing relaxation or reducine, utilizing steam � or hot air as a cleaning relaxing or reducine aEent. Snecified anatomical areas. Anatomical areas consistine of: � 1) Less than comp,letely and oQaauely covered: (a) human eenitals. �b) Qubic re�ion (c) buttock and (d) female breast below a point immediatel,y above the top of the areola: and � 2) Human male genitals in a discernibly turgid state, even if comp,letely and o�aq_uely covered. � �ecified sexual activities. Activities consisting of: 1) Human genitals in a state of sexual stimulation or arousal: � 2) Acts of human masturbation sexual intercourse or sodomv: � 3) Fondlin�or other erotic touching of human eenitals. vubic region, buttock or female breast; � 4) Situations involving a uerson or persons, any of whom are nude clad in undergarments or in sexuallv revealing costumes. and who are en.gased in activities involving the flaeellation. torture fettering bindin� or other vhysical restraint of anv � such persons. , 45 � � Section 5. � That Section 60.543 (10) of the Saint Paul Legislative Code pertaining to adult uses permitted in a B-3 Zoning District subject to special conditions � be and is hereby amended as follows: � (10) Adult t�ses conversation/rag parlors subject to the following conditions: (a) The t�ses adult conversation/rav varlor shall be located at � least 1320 radial feet from any other adult use measured in a straight line from the closest points of the buildings in � which the adult uses are located. (b) The adult t�se conversation/rap parlor shall be located at least 200 radial feet from any residentially zoned property � measured in a straight line from the closest point of the building in which the adult �se conversation/rap narlor is , located to the closest residentially zoned property line; �Y�}s-eeadi��ea-a►ay-�e-wa�ve�-by-�l�e-��atna�tig-ee�aiss�ea-�€ � �ke-ge�sex-a��y�Ag-€s�-��ie-wa�ve�-ska��-€��e-w}�k-�13e p}aa��xg-ad�a�x�s��a�e�-a-eeasea�-pe��iea-wk�ek-3a��ea�es a�p�eva�-e€-�l�e-��e�ese�-a�x��-xse-by-9A-ge�ees�-e€-��ie � ��e�e��y-ewxe�s-W�.�l��x-2AA-�a��a�-€ee�-e€-�ke-�e�-e�t-wl��el� �ke-t�se-wex�d-be-�eea�ed;-�ke-��aaR�xg-ee�aiss�ea;-�.a eeas�de��Rg-stzek-s-wa�ve�';-ska��-ffiake-�l3e-€e��ew�rzg ' €�a�}ags=-��►a�-�ke-g�egese�-t�se-w��-ae�-be-esa��a�y-�e-�ke �xb��e-�a�e�es�-e�-�a3t��e�s-�e-tlea�by-g�ege��es;-aa�-�ka� �ke-sg��}�-aa�-�a�ex�-e€-�ke-e�dixaaee-w�.��-be-ebse�ve�; � �ka�-�l�e-g�'e�ese�-xse-w��-ae�-ea�a�ge-e�-eReet��age-�ke �eve�e�eaea�-e€-a-"ski�-�ew"-a�ea;-�lna�-��ie-es�ab�isl�er��-e€ aa-a��exa�-t�se-e€-�l��s-�yge-�a-�ke-a�ea-w��-ae�-be eea��a�y-�e-aay-g�eg�affi-e€-ae�gkbe�kee�-ee�se�va�iea-e� � i��eve�ae��;-e��ke�-�es��ea��a�-e�-aea-�es��ea��a�;-aa�-�ka� a��-ap��eab�e-�egt��a��exs-e€-�k;s-e��xasee-w}��-be ebse�ve�. � (c) The t�se adult conversationLrap varlor shall not be located within a building also used for residential purposes. � (d) There shall be no access from the building in which the xse adult conversation rap parlor is located to the alley or to residentially zoned property. � (e) Conditions (b)-(d) mav be waived by the vlannin¢ commission if the verson applving for the waiver shall file with the � planning administrator a consent petition which indicates ��roval of the proposed adult conversation/ra� varlor bv 90 gercent of the nroperty owners within 200 radial feet of the lot on which the adult conversation/rav varlor would be � located• the vlanni� commission, in considerin� such a waiver shall make the following findings: that the provosed 46 � � � � . use will not be contrary to the public interest or injurious � to nearby proQerties, and that the spirit and intent of the ordinance will be observed• that the Qronosed use will not enlarge or encourage the develonment of a "skid-row" area: � that the establishment of an additional use of this type in the area will not be contrarv to any vro�ram of nei,ghborhood conservation or improvement. either residential or non- residential: and that all applicable regulations of this � ordinance will be observed. (ef) All signs shall comply with Chapter 66 of the Zoning Code , and with Chapters 274 and 275 of the Saint Paul Legislative Code. � (g) The use shall be licensed as a conversation[,rap parlor under ��licable provisions of the Saint Paul Legislative Code. (11) Adult massage parlors or health clubs subject to the same � conditions as those listed above in 60.543(10) for adult conversation/rap parlors. (12) Adult saunas subject to the same conditions as those listed above � in 60.543(10) for adult conversation/rap parlors. (��13) Auto repair, sub�ect to the following conditions: . . . � (�214) Accessory buildings, structures, and uses as defined in Section 60.201. � Section 6. � That Section 60.554 (2) of the Saint Paul Legislative Code pertaining to � adult uses permitted in a B-4 Zoning District subject to special conditions be and is hereby amended as follo�zs: � (2) Adult �ses conversationJrap varlors sub,ject. to the following conditions: � (a) The xse adult conversation/rap parlor shall be located at least 300 radial feet from any other adult use measured in a straight line from the closest points of the buildings in � which the adult uses are located. (b) The xse adult conversation/rap parlor shall be located at � least 100 radial feet from any residential use measured in a straight line from the closest point of the building in which the xse adult conversation/rap varlor is located to the building in which the residential use is located. � (c) The t�se adult conversation/rap parlor shall not be located within a building also used for residential purposes. � 47 � � . ' 1 (d) All signs shall comply with Chapter 66 of the Zoning Code � and with Chapters 274 and 275 of the Saint Paul Legislative Code. (e) The adult conversation/ra�parlor shall be licensed as a � conversation/rap varlor under a��licable provisions of the Saint Paul Legislative Code. � (3) Adult massaee parlors or health clubs subject to the same conditions as those listed above in 60.554 (2) for adult conversation/ra�parlors. , (4) Adult saunas subiect to the same conditions as those listed above , in 60.554 (2) for adult conversation/rav uarlors. � Section 7. � That Section 60.563 (2) of the Saint Paul Legislative Code pertaining to . adult uses permitted in a B-5 Zoning District subject to special conditions be � and is hereby amended as follows: � (2) Adult t�ses conversation rap varlors subject to the following conditions: (a) The tzse adult conversation/rap parlor shall be located at ' least 300 radial feet from any other adult use measured.in a straight line from the closest points of the buildings in which the adult uses are located. � (b) The tzse adult conversation/rap narlor shall be located at least 100 radial feet from any residential use measured in a � straight line from the closest point of the building in which the t�se adult conversation/rap �arlor is located to the building in which the residential use is located. � (c) The t�se adult conversation/rap parlor shall not be located within a building also used for residential purposes. � (d) All signs shall comply with Chapter 66 of the Zoning Code and with Chapters 274 and 275 of the Saint Paul Legislative Code. � {e) The adult conversation/rap parlor shall be licensed as a conversationLrap varlor under anplicable provisions of the � Saint Paul Legislative Code. (3) Adult massage parlors or health clubs subject to the same conditions as those listed above in 60.554 (2) for adult � conversation/rap parlors. 48 � . � � c1 ��o�f4 � �4) Adult saunas subject to the same conditions as those listed above � in 60.554 (2) for adult conversation,1rap parlors � Section 8. � That Section 60.612 of the Saint Paul Legislative Code pertaining to principal uses permitted in I-1 Industrial Districts be amended so as to add � the following: (24) Adult bookstores subject to the following conditions• � (a) The adult bookstore shall be located at least 1320 radial feet from any adult use measured in a straight line from the � closest voints of the buildin�s in which the adult uses are located. (b) The adult bookstore shall be located at least 1320 radial ' � feet from any residentially zoned property in anv municivality, measured in a straight line from the closest vro�erty line of the proverty on which an adult bookstore is � located to the closest residentially zoned property 1 ne (c) The adult bookstore shall be located at least 1320 radial feet from anv "�rotected use." defined as• a building used , entirelv for residential �urposes a dav care center where such dav care center is a principal use a house of worship a vublic library, a school (public parochial or private � elementarv. iunior high or high school) a vublic park a public vlaveround. a public recreation center or a public svecialized recreation facility The distance shall be � measured in a strair�ht line from the closest property line of the nrovertv on which an adult bookstore is located to the closest vroverty line of the property on which is located an aforementioned protected use , �d) The adult bookstore shall be located at least 50 radial feet from anv retail or service business dealing directiv with � conswners. measured in a straight line from the closest pronertv line of the property on which the adult bookstore is located to the closest property line of the,�roperty on which is located a retail or service business dealin � directly with consumers. (e) Conditions (b)-(d) may be waived by the plannin� commission � if the �erson a�plying for the waiver shall file with the plannine administrator a consent petition which indicates avnroval of the proposed adult bookstore bv 90 percent of the vro�ertv owners within 1320 radial feet of the lot on � which the use would be located: the planning commission in considering such a waiver. shall make the following findines: that the nrovosed use will not be contrary to the � 49 � � public interest or injurious to nearby properties. and that the spirit and intent of the ordinance will be observed; � that the �roposed use will not enlarge or encourage the development of a "skid-row" area: that the establishment of an additional use of this type in the area will not be contrary to anv vrogram of neighborhood conservation or � improvement, either residential or non-residential: and that all applicable reeulations of this ordinance will be observed. � (f) All si�ns shall comply with Chapter 66 of the Zoning Code and with Chapters 274 and 275 of the Saint Paul Legislative ' Code. �25) Adult cabarets subject to the same conditions listed above in 60.612 (24) for adult bookstores. � (26) Adult mini-motion picture theatres subject to the same conditions as those listed above in 60.612 (24) for adult bookstores. � (27) Adult motion picture theatres subject to the same conditions as those listed above in 60.612 (24) for adult bookstores. � (28) Adult uses other than adult bookstores, adult cabarets, adult � conversation/rap uarlors. adult massage parlors, adult health clubs, adult mini-motion picture theatres. adult motion picture � theatres and adult saunas. subject to the same conditions as those listed above in 60.612 (24) for adult bookstores. � Section 9. � That Section 412.02 (2) of the Saint Paul Legislative Code pertaining to � massage parlors, saunas, etc. , be and is hereby amended as follows: � (2) "Massage" means the rubbing, stroking, kneading, tapping or rolling of the body W��k-�l�e-kaxds, for the exclusive purposes of Q,leasure, relaxation, physical fitness, or beautification, and for no other � purposes; . . . � Section 10. This ordinance shall take effect and be in force thirty days from and � after its passage, approval and publication. � � 50 � � i . APPENDIX A � NAMES AND ADDRESSES OF EXISTING ADULT USES , Adult Bookstores Union Bookstore 674 University � Adult Motion Picture Theatres � Faust Theatre 626 University Flick Theatre 621 University � Adult Cabarets * = attached to bar � Belmont Club* 615 University Casey's Taverns* 2545 West 7th Street Lamplighter Lounge* 160 West Larpenteur , , Payne Reliever* 899 Payne Avenue Playboy Lounge 361 West 7th Street Seventh Street Trolley 880 East 7th Street ' Adult Health Clubs , Comfort Center 749 North Milton Como-Rice Club 606 Rice Street Cosmopolitan Club 965 Arcade Street � Cosmos 843 Rice Street Emporium 1075 Hudson Road Lee Lenore's Club 740 North Snelling Avenue Pam's Holiday Lounge 540 North Prior Avenue � Red Carpet 613 Grand Avenue Scandia Health Club 57 West 7th Street ___ Speakeasy 927 University , � � � , � 51 � , . ' . APPENDIX B � MEMORANDUM DISCUSSING ISSUES RAISED DURING PUBLIC REVIEW ' � MEMORANDUM � T0: Zoning Committee � FROM: Mark Vander Schaaf DATE: July 27, 1987 ' SUBJECT: Adult Entertainment 40-Acre Study: Summary and Analysis of Issues Raised During Public Review . � Introduction � � The following memo on adult entertainment is in two parts. The first part considers the major issues raised during public review of the 40-acre study. For each issue, the memo states the issue, provides a summary and analysis of ' the issue, and states the staff recommendation regarding the issue. The issues are as follows: ' 1. Street Prostitution (Memo Page One) 2. Potentially Dangerous Patrons of Adult Businesses (Memo Page Three) 3. Sufficiency of Distance and Spacing Requirements (Memo Page Four) 4. "Combat Zones" and "Welcome Mats" (Memo Page Five) � 5. Site-Specific Isolated Adult Zone (Memo Page Six) 6. Health Clubs, Massage Parlors, etc. (Memo Page Six) 7. Changes in Adult Uses (Memo Page Seven) � 8. Potential Proximity of Adult Uses to Municipal Baseball Facility (Memo Page Seven) 9. Proximity to Commercial Uses (Memo Page Eight) , 10. Permitted Use or Conditional Use (Memo Page Eight) The second part of the memo is a summary of the proposed amendments to the Zoning Code (p. 9) . � Ma�or Issues Raised During Public Review , 1. Street Prostitution ' ISSUE: To what extent and under what circumstances does adult entertainment contribute to street prostitution? , 53 � � � July 27, 1987 Page Two ' , SUMMARY: Much testimony at the public hearing centered on the perceived , relationship between adult entertainment and street prostitution. Residents in the area of University and Dale consistently testified that adult entertainment has contributed to street prostitution in the area by creating an image of a "sex for sale" district. The Police � Department acknowledged the connection by voicing the concern that a new and/or different concentration of adult entertainment in the city could create a second area of street prostitution. On the other hand, the ' Police Department argued that street prostitution is not associated with certain types of adult entertainment (notably isolated cabarets and health clubs) . � ANALYSIS: Adult entertainment in the University/Dale area clearly creates a "sex for sale" image which makes the area an attractive market for street prostitutes. Nevertheless, the evidence suggests that there , are also other variables that make this neighborhood a center for street prostitution. These variables include: . - Character of surrounding neighborhood. ' Typically, both adult businesses and street prostitution are ' found in economically and socially marginal areas where the neighborhood has fewer resources to deal with its problems. When the surrounding neighborhood is residential, prostitutes are more protected from the law because they can pretend to , be ordinary pedestrians. At the same time, ordinary pedestrians then become mistaken for prostitutes by clier�ts looking for sex. , - Concentration of adult businesses. The presence of several adult businesses in one area creates � a "sex for sale" image that an isolated adult business would not. - Composition of adult businesses. � In many cities, adult bookstores and movie theatres are � associated with the most serious land use problems. This pattern persists in Saint Paul as well. All of the city's adult bookstores and movie theatres are within one block of the University/Dale intersection. � The proposed zoning ordinance is addresses all three variables mentioned above: ' - Character of surrounding neighborhood. Two aspects of the proposed amendment address this issue. ' First, by confining adult uses to industrial zones, the ' amendment limits adult businesses to areas where street 54 � � . . �� .��.� , � ` � July 27, 1987 Page Three � prostitutes would be readily identifiable because pedestrian traffic is low. Secondly, by requiring a 1320 foot (2 1/2 block) buffer zone between adult uses and residential areas, � the proposed amendment would ensure that the immediate negative land use impact of adult businesses would not occur in residential areas. � Staff acknowledges that it would be desirable to increase the size of the proposed buffer zone. Unfortunately, given Saint Paul's residential settlement patterns, it is not possible to , do so significantly. For example, a buffer zone of 2000 feet (3 1/2 blocks) would result in no land available for adult uses outside of the airport and the sewage treatment plant. Such an ordinance would almost certainly be determined to be � unduly restrictive by a court. - Concentration of adult businesses. � ! The proposed amendment would require that there be a minimum distance of 1320 feet (2 1/2 blocks) between individual adult ' businesses. Staff believes that this spacing requirement is sufficient to deconcentrate future adult businesses. While it would be desirable to increase the distance requirement, this would make the proposed amendment excessively ' restrictive unless other proposed requirements were relaxed. - Composition of adult businesses. _ � The proposed amendment focuses the most restrictive zoning requirements on the adult businesses most often associated with a negative impact on surrounding neighborhoods-- � visually-oriented businesses (bookstores, theatres, cabarets) . � RECOMMENDATION: Retain the elements of the proposed amendments which relate to this issue--most stringent zoning requirements applied to ' adult bookstores, theatres and cabarets; 1320 feet between individual adult uses; limit adult bookstores, theatres and cabarets to industrial zones; 1320 feet between residential/protected areas and adult bookstores, theatres and cabarets. ' 2. Potentially Dangerous Patrons of Adult Businesses , ISSUE: Do patrons of adult businesses pose an immediate threat to people in the areas surrounding such businesses? ' SUMMARY: Many citizens are concerned that at least some of the patrons of adult businesses pose a threat to others in proximity to adult businesses. It has been suggested that sex offenders or potential sex ' S5 � � . ' , July 27, 1987 Page Four � offenders frequent adult businesses. Also, residents in the � University/Dale neighborhood allege that patrons of adult businesses discard "hard core" pornographic literature on public streets and alleys, and in private shrubbery and trash cans near the place where the � literature was purchased. Such literature then becomes available to minors even though its sale to minors is prohibited. ANALYSIS: Residents in the University/Dale area report frequent sex- � related harassment by pedestrians and motorists in the neighborhood. Although it cannot be proved that the harassers are patrons of adult businesses, it is not unreasonable to suspect such a connection. The , Aurora-Saint Anthony Block Clubs presented testimony in the form of discarded pornographic literature allegedly picked up on the streets, sidewalks, bushes and alleys near adult businesses. The literature is ' extremely graphic, even on the cover, and it is appropriate to use zoning to minimize the likelihood that minors will be exposed to such material just because they live in a particular neighborhood. � RECOMMENDATION: Retain the element of the proposal which creates a 1320 � (2 1/2 blocks) foot buffer zone between visually-oriented adult uses and residential and other protected areas. This buffer zone will help � ensure that patrons of adult businesses will not be found as pedestrians in a residential/protected area. The current smaller buffer zone (200 feet in B-3, I-1; 100 feet in B-4, B-5) is appropriate for patrons of adult health clubs because the number of patrons served by such � businesses is smaller (they are more labor-intensive) and because they are not associated with printed materials which can be discarded in .the neighborhood. � 3. Sufficiency of Distance and Spacing Requirements ISSUE: Should the distance and spacing requirements be made more � stringent? SUMMARY: Many of those who testified at the public hearing--both � opponents and proponents of the proposal--encouraged the Planning Commission to make the ordinance tougher by increasing the required ' distance between adult uses and residential/protected areas, and by increasing the required spacing between individual adult uses. ANALYSIS: As discussed above (Issue #1) , staff agrees that it would be , desirable to increase both the distance and spacing requirements, but that to do so would seriously threaten the legality of the ordinance. The spacing between individual adult uses could be increased ' significantly if other requirements were relaxed. On the other hand, the distance between adult uses and residential/protected areas cannot be significantly increased because of Saint Paul's residential ' settlement patterns. The proposed amendment represents a balance that is felt to be both legally sound and sufficient to alleviate land use problems associated with adult entertainment. 56 ` . � ' July 27, 1987 � Page Five � RECOMMENDATION: Retain the elements of the proposal which relate to this issue--1320 feet between all individual adult uses; 1320 feet between residential/ protected areas and adult bookstores, movie theatres and � cabarets; 200 feet between residential areas and adult health clubs in B-3 and I-1 zones; 100 feet between residential uses and adult health clubs in B-4 and B-5 zones. � 4. "Combat Zones" and "Welcome Mats" � ISSUE: Would the proposed amendments create "combat zones" and/or a "welcome mat" to adult businesses wishing to locate in Saint Paul? SUMMARY: Some who testified at the public hearing maintained that the , amendments would send a message that Saint Paul wants adult entertainment and is opening up the entire city to adult businesses. Some further maintained that Saint Paul would then gain several - � concentrations of adult businesses constituting "combat zones." ANALYSIS: For several reasons, this concern is the opposite of the , effect the amended ordinance would have. First, the current Zoning Code permits adult uses in numerous locations throughout the entire city; the proposed amendments would limit adult � uses to a small number of potential sites as far as possible from where people normally live and shop. In short, the amendment would be the opposite of a "welcome mat." The current provisions were passed at .a � time when it was believed that the law required municipalities to provide large numbers of "commercially viable" sites for adult businesses. In 1986, however, the United States Supreme Court seemed to give municipalities permission to institute stricter zoning regulations ' regarding adult entertainment. In this new legal environment, the best way to "put out the welcome mat" for adult businesses would be to fail to enact stricter regulations. rSecondly, a "combat zone" for adult entertainment is a concentration of a relatively large number of adult businesses in close proximity to each � other. The proposed amendments prohibit new concentrations (requiring 1320 feet between individual adult uses) . Moreover, they would not apply to existing adult uses which would be "grandfathered" into their current locations as legally nonconforming uses. Because the numbers of ' adult businesses in Saint Paul and other cities have declined dramatically in the last decade, it is likely that few (if any) adult businesses will locate in the areas remaining available to them under , the amended Zoning Code. The intent of the proposed amendments is simply to ensure that any new adult businesses will be far from where people live. , RECOMMENDATION: Retain the elements of the proposed amendments which relate to this issue. , 57 , . , July 27, 1987 Page Six � 5. Site-Specific Isolated Adult 2one � ISSUE: Should the City limit adult entertainment to a specific area isolated from the rest of Saint Paul? � SUMMARY: Some who testified suggested that it would be preferable to limit adult uses to one specific area of the city totally separated from residential and related land uses by strong natural or human barriers. , Most were not specific as to where this should be, although a few mentioned "down by the sewage treatment plant." ANALYSIS: As discussed above (Issue #1) , there really are no places in ' Saint Paul which are a great distance from where people live. Those • which are farthest from human settlement are in fact the areas available ' under the proposed amendments. Although there is land near the sewage treatment plant which could be developed, its low lying character makes it both environmentally sensitive and expensive to develop. Much of - this land is currently without adequate public infrastructure. The lack ' of infrastructure is problematic for two reasons. First, it would be inadvisable to limit adult uses to places without street access. Secondly, the City would correctly balk at installing expensive public ' infrastructure simply to accommodate adult uses. Finally, such a zone would indeed be a "combat zone" which have been associated with unusually high crime rates in cities elsewhere in the nation that have tried such an approach. ' RECOMMENDATION: Retain the approach of the current proposal--limit adult uses within existing zones rather than concentrating them into a single � isolated zone. 6. Health Clubs, Massage Parlors, etc. � ISSUE: Should health clubs and other touch-oriented adult businesses (health clubs, massage parlors, etc.) be treated less rigorously than ' visually-oriented establishments (bookstores, movie theatres, etc.) by the Zoning Code? SUMMARY: Some citizens at the public hearing advocated treating all ' adult entertainment businesses equally. Nevertheless, it was admitted by residents of the University/Dale neighborhood that problems associated with the adult theatres and bookstores were a higher priority � for them.. Moreover, the Police Department testified that street prostitution and prostitution within health clubs are two separate problems and that therefore health clubs are not associated with street ' prostitution in surrounding neighborhoods. ANALYSIS: Staff proposes as a prudent guideline that the number of adult � businesses which could be located within the city under the revised Zoning Code should be no smaller than the number of adult businesses currently existing in the city. The proposed stricter standards would • 58 � ' � July 27, 1987 � Page Seven � provide space for 10-12 adult businesses at most. Currently, there are 19 adult businesses in the city--9 visually-oriented (bookstores, theatres and cabarets) and 10 touch-oriented (health clubs) . Because � the stricter standards cannot prudently be applied to all 19 establishments, it seems reasonable to identify the businesses associated with the most serious land use problems and to apply the stricter standards to them. , RECOMMENDATION: Retain the proposal to apply stricter zoning standards to visually-oriented businesses than to touch-oriented businesses. ' Develop zoning administrative procedures to ensure that adult health clubs and massage parlors will be licensed as health clubs or massage parlors, or else reclassified as adult uses subject to more stringent zoning requirements. , 7. Changes in Adult Uses - ' ISSUE: Will adult businesses be able to change from one type of adult use to another while preserving their "grandfather" legal nonconforming , use status? SUMMARY: Several planning commissioners were concerned with a potential unintended result of the proposal to have more stringent zoning � requirements for visually-oriented adult establishments than for touch- oriented adult establishments. It was feared that adult businesses might change from one use to another to avoid tough zoning, and then ' change again to avoid tough licensing (of the touch-oriented establishments) . ANALYSIS: This is a legitimate concern and one which should be � addressed through revision of the proposed amendments and through establishing administrative procedures to prevent the feared loophole. ' RECOMMENDATION: Revise the proposed amendments to make each type of adult use a separate line item in the Zoning Code: That way, any change within the adult use category would be considered a change in use which , would result in the forfeiture of "grandfather" legal nonconforming use status. The amendments should also be revised to make appropriate licensing a condition for classification as a touch-oriented adult business. Appropriate administrative procedures should also be � developed to classify existing adult businesses as of the time the ordinance is passed. , 8. Potential Proximity of Adult Uses to Municipal Baseball Facility , ISSUE: Should adult uses be permitted close to Flatman Field, the municipal baseball facility? � 59 ' . � July 27, 1987 Page Eight � SUMMARY: In public testimony, it was pointed out that the proposed � revision would permit adult uses in the vicinity of the municipal baseball facility. This was seen as undesirable because this facility is often used by minors. ANALYSIS: This concern is valid and legitimately should be addressed b � y revising the list of "protected uses" from which adult businesses must be separate. Such a revision would effect few potential sites and thus ' would not make the overall proposal unduly restrictive. RECOMMENDATION: Revise the proposed list of protected uses to include ' "public recreation center or public specialized recreation facility." Visually-oriented adult businesses must be 1320 feet from any such protected uses. ' 9. Proximity to Commercial Uses , ISSUE: Should adult uses be prohibited from locating in proximity to , commercial uses such as retail and service establishments, offices, etc.? ' SUMMARY: Some testimony stressed that, while it is desirable to prohibit adult uses near residential areas, such uses should also be prohibited from proximity to commercial uses because they are incompatible. ' ANALYSIS: By limiting adult uses to industrial zones, the proposed amendments reflect the conviction that adult uses are not compatible ' with other businesses. The problem is that there are some business uses in I-1 and I-2 zones that would normally be found in B-2 or B-3 zones. It would be valid to make some provision to protect such uses from adult entertainment. However, such provisions should not be at the expense of � residential protection which should remain the primary purpose of the amendments. RECOMMENDATION: Revise the proposed amendments to. create a 50-foot ' buffer zone between any visually-oriented adult use and any retail or service business dealing directly with consumers. ' 10. Permitted Use or Conditional Use ISSUE: Should adult uses be permitted uses not requiring a conditional , use permit? SUMMARY: Assistant City Attorney Jerry Segal reports that legal , challenges to Saint Paul's adult entertainment zoning provisions include the charge that the requirement for a special condition use permit makes ' possible arbitrary treatment of adult businesses. He further suggests that the public hearing procedures accompanying special condition use permits are unnecessary for adult uses because the granting of a permit 60 ' . , � July 27, 1987 , Page Nine � will be automatic if certain technical requirements are met. Therefore, adult uses should be reclassified as permitted uses sub,ject to the fulfillment of specified requirements. � ANALYSIS AND RECOMMENDATION: City Attorney Segal will explain in greater detail his concern regarding this issue. Staff notes that the special condition requirement is in harmony with Saint Paul's tradition of � citizen participation--it provides a mechanism for notifying surrounding residents and businesses of the potential presence of a new adult business in their midst, and allows them to express their concerns in a ' public forum. On the other hand, it leads citizens to believe that their input might be able to prevent the establishment of the new use when in fact they cannot. If this procedure significantly threatens the , legality of the ordinance, staff recommends that it be revised. Summary of Proposed Amendments to Zonin� Code � � 1. Retain the land use provisions of the current Zoning Code for the following types of adult uses: adult health clubs, adult massage , parlors, adult saunas, adult conversation/rap parlors. Permitted in B-3 (general business) and I-1 (industrial) zones sub�ect to the following conditions: � 1320 feet between individual adult uses; , 200 feet between the adult use and residentially zoned areas. - Permitted in B-4 and B-5 (downtown) zones subject to the following � conditions: 300 feet between individual adult uses; � 100 feet between the adult use and residential uses. - Include as a special condition that these businesses be licensed as , health clubs, massage parlors, saunas or conversation/rap parlors. 2. Revise the land use provisions of the current Zoning Code for the , following types of adult uses: adult bookstores, adult cabarets, adult mini-motion picture theatres, adult motion picture theatres, other adult uses. � - Permitted in I-1 and I-2 (industrial) zones subject to the following conditions: � 1320 feet between individual adult uses; � 61 ' � ' July 27, 1987 Page Ten � 1320 feet between the adult bookstore, cabaret, etc. and � residential areas and between the adult bookstore, cabaret, etc. and certain protected uses; 50 feet between the adult bookstore, cabaret, etc. and any � retail or service business dealing directly with consumers. 3. Revise all definitions of adult uses to refer to "specified sexual ' activities" and "specified anatomical areas" as well as to activities off-limits to minors. ' MEV/bp ' cc: City Councilmembers Jerry Segal Lee Ann Turchin Jan Gasterland ' Jim Bellus Jim Frank � A1 Lovejoy Carolyn Bailey Larry Soderholm Joe Carchedi ' ' ' , � � , � � 62 ' � _ . �� -/��.� 1 � APPENDIX C � c�ty of saint paul . � planning commission resolution file number 87-92 � � date Auaust �4 . , 9�� WHEREAS, the City Council on November 13, 1986 adopted a resolution initiating a 40-acre study of adult entertainment in Saint Paul for the purpose of amending the Zoning Code; and ' WHEREAS, the Zoning Committee of the Planning Commission reviewed suggested amendments and recommended a public hearing; and , WHEREAS, pursuant to Minnesota Statutes 462.375(5) , the Planning Commission held a public hearing on the proposed amendments at its June 26 and July 10, , 1987 meetings; and ' WHEREAS, the Planning Commission has determined: ' 1. That the number of real estate descriptions affected by the amendments renders the obtaining of written consent impractical; , 2. That a survey of an area in excess of 40 acres has been made; 3. That a determination has been made that the amendments to the Zoning Code proposed are related to the overall needs of the community, to existing� ' land use, and to plans for future land use; and � 4. That pursuant to State Statutes proper notice of the hearing was given in ' the Pioneer Press and Dispatch on June 9, June 16, and June 23, 1987. NOW, THEREFORE, BE IT RESOLVED, that the Planning Commission recommends � approval of the Zoning Code amendments attached hereto in the 40-acre study proposing to restrict certain types of adult uses to I-1 and I-2 Zoning Districts only, subject to certain other conditions, and directs the Planning Administrator to forward the study and this resolution to the Mayor and City ' Council for their review and action. ' ' � moved by MORTON �a'�d � LEVY - � in favor-imoUs against � 63 � � CREDITS ' Administration and Policy Direction: ' James J. Bellus, Director Peggy A. Reichert, Deputy Director for Planning Allen P. Love�oy, Acting Deputy Director for Planning Lawrence Soderholm, Principal Planner , Planning and Research , Mark E. Vander Schaaf, City Planner , , , i i 1 � 1 1 1 1 1 , 65 � . , . ��_�-,,f�'��° INTRODUCTION The initiation of these proceedings raise grave consti- tutional issues concerning due process and freedom of expression. This is particularly true, at this time, because a eriminal eharge is currently pending against Mr. Fan (State of Minnesota v. David Suifon� Fan, Complaint No. 62-11-6-0�2569) eoneerning the allegations contained in paragraphs 3 and �4 of the May 3, 1988 Notice. This Memorandum is respectfully submitted in support of Respondent' s Motions ( 1 ) To Dismiss For Failure To State A Claim Upon Whieh Relief Can Be Granted; (2) To Dismiss For Lack of Sub�ect Matter Jurisdietion; (3) To Stay Pending Immediate Appeal And To Certify Or To Stay Pending A Final Determination In The Criminal Proceedings; (�4) To Establish Burden Of Proof and Evidentiary Standards; and (5) Motion In Limine. It is vital that these Motions be determined prior to the commencement of testimony at these hearings because the continuation of these hearings, without the appropriate �udicial determinations and without the appropriate standards, will constitute a continuing prior restraint in violation of Respondent' s eonstitutional rights to due process and free expression. � � ARGUMENT I . THERE IS NO LEGAL BASIS FOR THE CITY OF ST. PAUL TO REVOKE OR FAIL TO RENEW THE ON-SALE LIQUOR LICENSE HELD BY MFL, INC. Regardless of whether the City of St. Paul is seeking to revoke or is refusing to renew the on-sale liquor license held by MFL, Inc. d/b/a Belmont Club, it must attempt to do so on the basis of constitutional ordinances and statutes in a constitutional manner. Furthermore, the City must conform to and satisfy the strietures of their own ordinances. Because the Counts set for in the May 3, 1988 Notice (hereinafter "Notice") do not fall within the ordinanee provisions for revocation or non-renewal and because the revocation or non-renewal of the license on the basis of "moral character" is uneonstitutional, eaeh of the counts must be dismissed. A. Counts 1 Through 5 Must Be Dismissed Because They Do Not Fall Within The Grounds For Revocation As Set Forth In Seetion 09 . 12 The allegations contained in the May 3, 1988 Notiee�� cannot form the basis for a license revocation because they do not satisfy the grounds set forth in Section �09. 12 of the �� A copy of whieh is attached hereto as Exhibit A. -2- , . St. Paul Leg. Code. Seetion 409. 12 provides, in relevant part, that: Any license �ranted hereunder may be revoked for a violation of � provision of this ehapter or of the liquor control act of the state of Minnesota. . . . Emphasis added. Counts 1 through 5 must be dismissed because, even assuming arguendo that sueh allegations could be proved, they do not eonstitute a violation of any of the provisions of Chapter 4092� of the St. Paul Leg. Code or of the liquor control aet (Minn. Stat. §3�OA et seg. ) . We have found no provisions in either Chapter �09 or in Minn. Stat §340A that could be �elated or coneeivably be violated by alleged illegal sales of drugs by a former employee or the alleged interferenee by a former employee with a police officer. Therefore, Counts 1 and 2 must be dismissed. Counts 3 and 4 allege violations of Minn. Stat. §617.2�6. Even assuming arguendo that Counts 3 and � could be proved, they do not constitute violations of the aet or chapter. Although Section 409.08(4) purports to prohibit the employment of persons under the age of 18 (exeept for certain specified occupations) , it specifically limits the prohibition to "in any rooms constituting the place in whieh intoxicating liquors are sold. . ." . Even assuming arguendo that the allegation contained in Count 3 were proved, it would not constitute a violation of Section �09.08(4) because: 2� See e.�. Seetions �09.08, 409.09. See also, Section 310. 06 (6) , (7) and (9) . -3- � . a. The licensee did not employ specific daneers (infra at 22) ; b. The area where nude dancing takes place is not part of the lieensed premises; 3� and, e. There are no allegations, nor can there be, that intoxicating liquor is sold in the premises where nude dancing oceurs. Therefore, Seetion 409.08(4) is inapplicable and Count 3 must be dismissed. Similarly, Seetion �09.09 proports to prohibit "certain sexual conduct" "on the licensed premises. " Even assuming arguendo that Count 4 could be proved, it would not constitute a violation of Seetion 409.09 beeause: a. The area where nude daneing oeeurs is not part of the licensed premises; �� 5� b. Nudity is not allowed in the licensed premises; c. Applieation of Section 409.09 to premises other than the licensed premises 3/ "[I]t is our opinin [sie] that as a general rule, the licensed premises of a liquor establishment ineludes the entire structure or portion of the structure oecupied by the licensee and whieh is to be included within the Couneil approved licensed area. This would inelude the patron area, the common areas, restroom faeilities, storage and kitehen facilities. . . ." Opinion letter dated September 1�, 1987 from City Attorney and Assistant City Attorney to Councilmember William L. Wilson. �� Opinion letter dated September 14, 1987 su ra n.3. 5� Couneilmember Wilson proposed an amendment to Seetion 409.09 that attempted to prohibit the viewing of nude daneing on the licensed premises. After extensive briefing and argument coneerning the constitutionality of such an Amendment, Mr. Wilson withdrew the amendment in Oetober, 1987. -4- , ��'�� ,��'� would violate the Constitutions of the United States and Minnesota as being vague and overbroad in violation of the principals of due process 6/ and freedom of expression7� (see infra at 7-21 ) and, d. Revocation or nonrenewal of an on- sale liquor license on the basis of Count 4 or Seetion 409.09 would constitute an unconstitutional prior restraint of freedom of expression guaranteed by the First Amendment oP the United States Constitution and Article 1 , Section 3 of the Minnesota Constitution. Infra at 7-12. Therefore, Count 4 must be dismissed. Ffnally, although Section �408.08(6) provides, in relevant part, that: No licensee shall. . .permit the licensed premises or any room in the same or any ad�oining building or any ad�oining building directly under his control to be used as a resort for prostitutes . . . , The City of St. Paul has not alleged a willful violation of this seetion. Count 5 does not allege that either MFL, Ine. or Mr. Fan has engaged in any sueh aetivities. Count 5 does not allege any violation by MFL, Ine. or Mr. Fan. Count 5 6� Fourteenth Amendment to the United States Constitution and Artiele 1 Section 7 of the Minnesota Constitution. 7/ First Amendment to Constitution of the United States and Artiele 1 , Seetion 3 of the Constitution for the State of Minnesota. -5- , , merely alleges a nuisance. By its very terms, Section 409. 12 requires a "violation" ; nuisanees are insufficient grounds. Therefore, Count 5 must be dismissed. B. Counts 1 Through 5 Must Be Dismissed Because They Do Not Fall Within � Of The Constitutional Grounds For The Qualifications Of An Applicant For An On-Sale Liquor License As Set Forth In Section 409.0 3) . If the City is attempting to revoke or refusing to renew the on-sale liquor license held by MFL, Ine. on the basis of its qualifications to hold an on-sale liquor license, the City must do so on constitutional �rounds. Furthermore, the City has the burden of satisfying the grounds set forth in Seetion 409.06(3) of the St. Paul Legislative Code. Section �09.06(3) provides, in relevant part, that: No license shall be issued to anyone other than a person over 19 years of age, of good moral character and repute, nor to any person who shall be hereafter con- victed of any willful violation of any law of the United States or the State of Minnesota or any City ordinance with regard to the manufaeture, saie, distribution or possession for sale or distribution of intoxicating liquor, nor to any person whose license under the state liquor control act or this chapter shall be revoked for willful viola- tion of such aet or ordinance. Because the allegations contained in Counts 1 through 5, as set forth in the Notice, do not satisfy the requirements of the Constitutions of the United States or Minnesota and do not satisfy the grounds set forth in Section 409.06(3) , all Counts must be dismissed. -6- . , ��f /�'� G 1 . Denial , non-renewal or revocation of a liquor license on the basis of moral eharaeter or fitness is an unconstitutional violation of due process.--Every person has a liberty interest in his or her good name, honor, integrity and honesty that is a liberty interest to be proteeted by the prineiples of due process under both the Fifth and Fourteenth Amendments to the United States Constitution and Artieles 1 , §7 of the Minnesota Constitution. See e.�. , Board of Regents v. Roth, 408 U.S. 56�, 573 � 1972) and the cases cited therein. Furthermore, a person who invests substantial amounts of money in a business subject to an active on-sale liquor license "is entitled to a reasonable expectation of the continuing receipt of the benefit conferred by a license." Tamarac Inn, Inc. v. City of Long Lake, 310 N.W.2d �47�4, 477 (Minn. 1g81 ) . This "reasonable expectation of the continuing receipt of the benefit conferred by the license'� provides a sufPicient property interest to require the applieation of the prineiples of due process contained in the Fifth and Fourteenth Amendments to the United States Constitution and Artiele 1 , §7 of the Minnesota Constitution. See e.�. , Perry v. Sindermann, 408 U.S. 593 � 1972) . Aecord, Goldberg v. Relly, 397 U.S 254 ( 1970) . The denial , revocation or nonrenewal of an on-sale liquor license on the basis of a person� s "moral charaeter or repute" is a violation of the prineiples of due process under both the federal and state constitutions beeause "moral character and repute" is void for vagueness. An ordinanee or statute8/ is void for vagueness if it: 8� Minn. Stat. §3�40A.�402(5) and Sect�on 310. 06(9) o� the St. Pau1 Leg. Code. -7- fails to give a person of ordinary intelligence fair notice that his contemplated conduet is forbidden by statute. Papachristore v. Jaeksonville, 405 U.S. 156, 162 ( 1972) . Aecord, Grayned v. Rockford, 408 U.S. 104, 108 ( 1972) ; D.C. v. City of St. Louis, 795 F.2d 652, 653 (8th Cir. 1986) . Moreover, it requires legislatures to set reasonably elear guidelines for law enforcement officials and triers of fact in order to prevent "arbitrary and diseriminatory enforcement." Smith v. Goguen, �15 U.S. 566, 572-73 � 197�) . Aeeord, D.C. v. City of St. Louis, 795 F.2d at 653. Standardless ordinances or statutes permit seleetive law enforcement in violation of due process. Smith, �15 U.S. at 575-76. Neither the ordinanee nor the statutes define "good moral eharacter or repute. " Neither the ordinance nor the statute set any standards or guidelines to determine what ��good moral eharaeter and repute" is. Therefore, the allegations set forth in the Notice should be dismissed to the extent that the City seeks any adverse action against MFL, Ine. , Mr. Fan. or the on-sale liquor license held by MFL, Ine. on the basis of laek of "good moral character or repute." Therefore, Counts 1 through 5 must be dismissed. 2. Denial , non-renewal or revocation of a liquor license on the basis of moral charaeter, repute or fitness, which is asserted on the basis of an alleged violation of obscenity laws, is vague and overbroad and constitutes an uneonstitutional prior restraint upon the freedom of expression.--The allegations contained in Counts 3 and � -8- purportedly arise out of nude dancing that allegedly took place off from the licensed premises 9� but that could allegedly be viewed from the licensed premises. Dancing, ineluding nude daneing, is proteeted expression under both the United States and the Minnesota Constitutions. Letter dated October 7, 1987 from an Assistant City Attorney to the City of St. Paul . Furthermore, the patron� have a fundamental right to receive the proteeted expression. E.�. , Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 7�8, 757 ( 1976) . The lack of aseertainable standards in the ordinanee and statute concerning the denial, non-renewal or revocation of a liquor license based upon a personfs "moral charaeter or repute" is particularly offensive when the fundamental freedom of expression is implicated. When a statute� s literal seope, unaided by a narrowing state court interpretation, is capable of reaehing expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts. Smith v. Goguen, 415 U.S. 566, 573 ( 197�) . Aceord, NAACP v. Button, 371 U.S. 415, 432-33 ( 1963) . The denial , non-renewal or revocation of licenses or permits on the basis of the "moral eharaeter or repute �� where freedom of expression is implicated, is unconstitutionally vague. 10/ As the United States Supreme Court 9/ See City Attorneyst opinion letter dated September 14 , 1987 supra n.3. 10/ Argument set forth su ra at 7 is incorporated herein by reference. -9- i 1 � � ` ! ��J� explained in Shuttlesworth v. Birmingham, 39� U.S. 1k7, 150 ( 1969) : For in deciding whether or not to withhold a permit, the members of the Commission were to be guided only by their own ideas of "public welfare, peace, safety, health, deceney, good order, morals or convenience." This ordinance as was written, therefore, fell squarely within the many decisions of this Court over the last 30 years, holding that a law subjeeting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, ob,jeetive, and definite standards to guide the licensing authority, is unconstitutional. Aecord, Staub v. Baxley, 355 U.S. 313, 322 ( 1958) (An ordinanee held to be an uneonstitutional prior restraint where based upon the eharaeter of the applicant, the nature of the organization and "effeets upon the general welfare of citizens of the City. . . . These eriteria are without semblance of definitive standards or other controlling guides governing the action of the Mayor or Couneil in granting or withholding a permit.") ; Bayside Enterprises, Inc. v. Carson, �450 F.Supp 696, 706 (M.D. Fla. 1978) ("Bayside I" ) (" . . .licenses shall be issued only to individuals of good moral character" held to be unconstitutional for lack of aseertainable standards. ) (containing numerous cites. ) Furthermore, it makes no differenee whether actual proceedings have been commeneed, although they have been in this instanee. "It is enough that a vague and broad statute lends itself to select enforcement against unpopular causes." NAACP v. Button, 371 U.S. 415, 435 ( 1963) . The City of St. Paul could not constitutionally deny, refuse to renew, or revoke a license directly licensing the -10- expression on the basis of a prior convietion (let alone mere allegations) for an abuse of the licensee' s freedom of expression. Near v. Minnesota, 283 U.S. 697 ( 1931 ) ; Wendling v. City of Duluth, �95 F.Supp. 1380, 1385 (D. Minn. 1980) ("Had plaintiffs actually violated the obscenity ordinance in the past, the defendants could not use that as a ground to deny a license for an adult bookstore." ) ; Bayside Enterprises, Inc. v. Carson, �70 F.SupA. 1140, 11�5 �M.D. Fla. 1979) �"Bayside II") ("There is no distinetion of any significanee to be drawn between an injunetion that imposes a prior restraint on presumptively protected materials, . . . , and a licensing system that aceomplishes that same result through the initial denial . . . or revocation of a license. . . . In eaeh case, a party is denied the right to disseminate presumably protected materials in the future because he has disseminated unprotected materials in the past. . . ." [numerous citations omitted. ] ) ; Alexander v. City of St. Paul, 227 N.W.2d 370, 373 ( 1975) ("Section 372.0�[G] denies plaintiff the right to exercise a constitutionally protected right because of a past abuse of that right. . . . The City� s attempt to reseind plaintifP� s license is elearly a prior restraint. . . .We therefore hold that §372.04[G] is unconstitutional on its face.") . The City of St. Paul cannot do indirectly what it cannot do direetly. As the United States Supreme Court has held: [The government] may not deny a benefit to a person on a basis that infringes on his constitutionally protected interests--especially, -11- his interest in freedom of speech. For if the �overnment could deny a benefit to a person because of his constitutionally protected speeeh or associations, his exercise of those freedoms would in effeet be penalized and inhibited. This would allow the government to ��produce a result whieh [ it] could not command directly." S eiser v. Randall, 357 U.S. 513, ��b. • • • Such interferenee with constitutional rights is impermissible. (emphasis added. ) Perry v. Sindermann, 408 U.S. 593, 577 ( 1972) (colleeting cases) . Aceord Hannegan v. Esquire, 327 U.S. 1�6, 151 ( 19�6) (In reversing the revocation of a second-class postage permit to Esquire, Justice Douglas stated: " . . .the controversy is. . . whether the contents are ' good' or ' badf . To uphold the order of revocation would, therefore, grant the Postmaster General a power of censorship.��) ; Cabaret Enter. v. Aleoholie Bev. Con. Com'n. , 393 Mass. 13, �68 N.E.2d 612 ( 198�) . Thus, the City cannot constitutionally deny, fail to renew or revoke a liquor license (based upon allegations of bad "moral eharaeter and repute" ) beeause of past convictions or mere allegations of abuses of the exercise of the fundamental freedom of expression that allegedly oceurred in a constitutionally permissible area that is off from the premises that are licensed to sell liquor1l/. 11/ "A regulating authority may not adopt rules whieh preclude the exercise of free expression in an appropriate place, even on the ground another place is available. " H-CHH Assoe. v. Citizens for Re . Gov. , 193 Cal. App. 3d 1193, 23 Cal Rptr. 1 , 53 Cal . App. 1977) . Accord e.�. , Sehneider v. State, 308 U.S. 147 ( 1939) . — -12- The denial, non-renewal or revocation of a liquor license on that basis constitutes a penalty and punishment for past eonvietions or allegations of past abuses of the fundamental right to the free exercise of proteeted expression, without any aseertainable standards, and ereates an irrebuttable presumption that such alleged past abuses will continue in the future. As sueh, the ordinance, statute and any attempted denial , non-renewal or revocation of the liquor license on that basis is an uneonstitutional prior restraint on proteeted expression and a violation of due proeess. If an enaetment has the praetical effect of limiting free expression, it must be narrowly drawn. Sehad v. Borou�h of Mt. E hrain, �52 U�1 , 70, 71 , 75. . . 19 1� . . .The ordinanee leaves the City authorities with unlimited diseretion to grant or refuse a permit and places those subject to the ordinance in the position of having to contend with the City on a case-by-case basis, without the benefit of standards or guidelines. This the City may not do. Burlington v. New York Times, 532 A.2d 562 (Ver. 1987) . In addition, such a licensing scheme is unconstitutionally overbroad and will have a constitutionally impermissible ehilling effect on the future exercise of proteeted expression in constitutionally permissible places. Erznoznik v. City of Jackson�ille, �22 U.S. 205, 217 ( 1975) . Keyishian v. Board of Regents, 385 U.S. 589 ( 1967) ; Shelton v. Tueker, 36� U.S. 479 ( 1g60) ; H-CHH Assoc. v. Citizens for Rep. Gov. , 193 Cal . App. 3d 1193, 23$ Cal Rptr. 8�1 852, 857 (Cal App. 1987) ; Matter of Welfare of S.L.J. , 263 N.W.2d 412, 417 ( 197$) ; -13- or been convieted of the unlawful sale of drugs, interferrence with a poliee officer or prostitution of prostitution-related aetivities. Secondly, MFL, Ine. is the holder of the on-sale liquor license for the Belmont Club and is a "person" within the definition contained in Seetion �09.02( 11 ) 12/. Mr. Fan is an officer and director of MFL, Inc. MFL, Ine. is the "licensee"--not Mr. Fan--for the purposes of Counts 3 and 4. MFL, Ine. did not and does not hire specifie daneers. Dancers are hired and paid by Daneing Angels, Inc. 13/ Not only has the "licensee" not been convicted of the allegation contained in Counts 3 and �, the "licensee�� does not own the property and the areas where the dancers dance are not part of the licensed premises. 1�/ Thirdly, even assuming arguendo that the allegations contained in the Notice had resulted in a prior eonviction of either MFL, Ine. or Mr. Fan, none of the alleged offenses are "with regard to the manufacture, sale, distribution or possession. . . of intoxieating liquor.t� As set forth su ra at 2-6, the allegations set forth in Counts 1 through 5, even if proved, do not constitute a willful violation of anything set forth in Chapter 409 of the St. Paul Leg. Code or in Minn. Stat. §340A et seg. o� is constitut�pnally related thereto. See pp. 6-21 su ra. 12� " � Person� shall inelude individuals, corporations, partnerships and associations.�� 3/ Mr. Fan was formerly an officer, director and sole shareholder of Dancing Angels, Ine. �� Opinion Letter dated September 1�4 , 1987 supra n. 3. -22- ;�31`ISi�.:`'?'�,-�!7y �'`'f+'7f:' _' �_ ;',�r.i @1:.� �i<) i��;� ii:'.°.'. .-i- 'c��v�-.. i i ��::7.'i.L J�O'�C� i Cr LT t ��'Y Q '�O °f��t� :.�G � � �� t: I 2's _ � f t;: .-•�� r r�.'� `Y^:. P�J,�� .. . . . . ��? t _:n}; t Sv r t.� � . .. __ .�. _ .� � - ' ...:(�� ..,. _ .. i""!.0 . . �, rC'�. ..- � �0� . . _ ... . . .�... � . .. �,�. ��r � � � ;�' , '1 i� ' � � � � : . . ,'f_;,. .`�� , � � _,�� [ _ `;,:. . .. r ; - .. .s '�? .,. . � . L ' .. _ _ _�..♦ :.i . _. . . � �. �• �� ^ .. � _ - . � _ � ,, . - � . . . ,; ;_ „(J,� ,. ,.�,t..i�� _ ._ -i�:i . . <,. � . . ,. � . , .. , ' , . , ,�, �1.:�11 !1114J V\i��i �. • . _.. a . . _ ' . _. ' . 4�� ._.. . _ _ . N -. !.��..� . �_1J . v 4 i V 1�1 3i��•%�..r4 1J .. l.��)A `J l!•...J , i 1 V�U � ��L�v'. � .. . '..lj Jli . .. (J11 ?C_... � _ ._. � . �_..i . d: !�'•'C a A.t v�,i i�. �,1�J �V v �S.`,t� tJ��. .:�t I.� Gi��.)v:1�..'`AJ �. � . 4�... . . . ��.:_(, . . _ �:°� . . .._�: �� .^.•n.; c�`�� , .��,� r�r� • . ..t...z't�r:;, �,W_ :; � ct � � • . GGf# �i:+�,2:, _ . ;: _ .. =nn�{G �.ri^'Qi.l,;: 'Fi� ' , . ..rt,,°.r ..� �vr1 „7 �.ar . .. . ._ �?:�r..'. , ��i. . . ' . . .., .. � _..i.�.i� '�r� . �'.: ;�~ � . .. � .. . - �� .i!. f?,.�`�_ . ,. .��c.i . �. ` , . , .. .y :v �i"� v l�. . .. _ �� ..: . t� ,��l��ry.:,� . . _ .in��. • �t... .. �!��-4� f'jln..:�C . �. . . .. r . ' ;�'1C Y('1 ^fl' f.±� ,��tl Tt��..f .�. _��'�' . .Q.�� '..•� _ .. . . . ..a. . � �,` J?.' '�1 1 i � � . . � � _ .. �,� � �. I��i i t Ff S Y I�r'.`I, . . J n - � . � . . .., .. . .... r . i ♦ . � �� . � � � ' �. . � `��j.��.h.a�l��fj,�C �.);�% . � . . ��1�\i (y < 1' ...� � s �:J': i�iJ.i�d�..l.. t 1��. . .. .� li�.�i�t�1��i �..� :e ...._ � . . 'r� . .. S,: ..� . .,. r��1 c .. .11 . . -fl:l. 0 � � 1:. � .. . . �..:1' l� .. .. ...,. . . \� � , . �� -f�°�� Alexander v. City of St. Paul , 227 N.W. 3d 370, 375-76 ( 1975) citing Freedman v. Maryland, 380 U.S. 51 , 58 ( 1965) . See also, In re Grand Jury Subpoena, 829 F.2d 12g1 , 1299 (4th Cir. 1987) ("First amendment rights need 'breathing space to survive, ' NAACP v. Button, 371 U.S. �15, 433 • • . ( 1963) , and courts are to protect them �not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental influence. � Bates v. Little Roek, 361 U.S. 516, 522. . . ( 1960)'�) ; Wieman v. Updegraff, 344 U.S. 183, �95 � 1g52) (Frankfurter concurring) (ehilling effect of loyalty oaths on freedom of association) ; Petrak v. Ohio Elections Com+n, 6g0 F.Supp. 1368, 1373 �S.D. Ohio 1987) ("Clear guidelines must exist regarding what is illegal so that persons will not be ehilled in the exereise of their fundamental First Amendment rights for fear that they will be prosecuted.��) ; Koppinger v. City of Fairmont, 248 N.W,2d 708 (Minn. 1976) (ordinance regulating nude dancing in places other than bars is unconstitutionally overbroad) . Therefore, Counts 3 and 4 must be dismissed. 3. The City cannot justify the prior restraint of protected expression.--To sustain the prior restraint contained in the regulatory seheme, the City must sustain its burden of establishing: a. That the licensing system '�fit[s] within one of the narrowly defined exceptions to the prohibition against prior restraints[ . ]" Southeastern Promotions, Ltd. v. Conrad, �420, U.S. 5�6, 559 ( 1975) . -14- . � b. That adult entertainment and the viewing thereof, "present a clear and present danger of substantive evil.'� Thornhill v. Alabama, 310 U.S. 88, 105 ( 1939) ; Alexander v. City of St. Paul , 303 Minn. 201 , 227 N.W.2d 370 , 373 ( 1975) . e. That the licensing seheme has been aceomplished with procedural safeguards that reduce the dan�er of suppressing constitu- tionally protected speech. Southeastern Promotions, Ltd. , 420 U.S. at 559. d. That the means utilized imposes the least amount of restrietions on protected expression. Schad v. Mount Ephraim, 452 U.S. 61 , 68-71 ( 1981 ) . The City simply cannot, under any cireumstances, satisfy this burden because: a. This tribunal lacks sub�eet matter �urisdie- tion to determine whether the alleged "sexual performance" is outside of the realm of proteeted expresion. Infra at 23-24. Indeed, even proceeding with such a determination in this tribunal would constitute an additional prior restraint in violation of the Respondent' s rights to due process and freedom of expression. Id. -15- b. Neither nude daneing nor the viewing thereof ereates a ��clear and present danger of a substantive evil. " Even if this Tribunal finds nude dancing to be "immoral" , "distasteful" or "not the type of entertainment enjoyed by by majority of constituents" , the expression does not lose the protections afforded by the Federal and the State Constitutions. The United States Supreme Court has long and consistently held that sueh legislative �udgments are insufficient to justify the infringement of a fundamental freedom. Sehad, u52 U.S. at 73 n. 15; Erznoznik, 422 U.S. at 211 ; Murdoek v. Pennsylvania, 319 U.S. 105, 116 ( 1943) . The United States Supreme Court has consistently and repeatedly stated that "[m]ere legislative preferenees" are insufficient justifications when the regulation seeks to prohibit protected expression, See e.�. , Pope v. Illinois U.S. , 95 L.Ed.2d �3g, 445 ( 1987) ; Sehad 452 U.S. at 61-62; Niemolko v. Maryland, 340 U.S. 268, 272 ( 1950) ; Thornhill, 310 U.S. at 95-6; Schneider, 308 U.S. at 161 . As Justice Douglas has explained: Plainly a community may not suppress, or a state tax, the dissemination of views because they are unpopular, annoying or distasteful . . . .That would be a complete repudiation of the philosophy of the Bill of Rights. -16- Murdoeh, 319 U.S. at 116. Accord, Pope v.Illinois, U.S. , 95 L.Ed.2d 439, ��5 ( 1987) �"In Miller itself, the Court was careful to point out that ' [t]he First Amendment proteets works which taken as a whole, have serious literary, artistie, political or scientific value, regardless or whether the govern- ment or a majority of the people approve of the ideas these works represent� [citation omitted] .") ; Wood v. Moore, 350 F.Supp. 29, 31 (W.D. N.Car 1972) (" . . .responsiveness to those citizens who may have sought its passage is of considerably less significance under the law of this land than responsibility of the city government to the Co�stitution of the United States and the people whose personal liberties the Constitution proteets." ) ; Matter of Welfare of S.L.J. , 263 N.W.2d 412, 416 (Minn. 197$) (The fact that the words used by appellant are vulgar, offensive, and insulting, and that their use is condemned by an overwhelming majority of citizens does not make them punishable under the criminal statute of this state unless they fall outside the protee- tion afforded to speech by the First Amendment. f� ) Similarly, courts have consistently held that findings that would generally support an ordinance or statute under the exercise of the police power are insufficient to justify prior restraints on proteeted expression. For example: -17- , , �/ �` `�'?�'a! C� 1 . Traffie control is an insufficient justiPication. Erznoznik v. City of Jaeksonville, �422 U.S. 205, 214-15 ( 1975) . 2. Community planning coneerns, parking problems and need for police proteetion are insufficient �ustifications. Sehad v. Mount Ephraim, �52 U.S. 61 , 72-74 f1981 ) . 3. The promotion of public morals--even if the ma,jority of a community believes that expression is immoral--is an insufficient justification. Sehad, �452 U,S. at 73 n. 15; Erznoznik, 422 U.S. at 211 ; Murdoek v. Pennsylvania, 319 U.S. 105, 116 ( 1943) . 4. Health concerns are insufficient. Morris v. Municipal Court For San Jose-Mitpitos, 32 Cal. 3d 553, 186 Ca1 .Rptr. 49�, 652 P.2d 51 , 60 ( 1982) . 5. That the expression may take place elsewhere is insufficient. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 5�+6, 556 ( 1975) ; Thornhill v. Alabama, 310 U.S. 88, 106 ( 1939) ; Sehneider v. State, 308 U.S. 1�47, 163 ( 1939) ; H-CHH, 238 Ca1.Rptr. at 853. 6. The need to pursue eriminal prosecutions is insuPPieient. Wendling v. City of Duluth, �F95 F.Supp. 1380 (D.Minn. 1980) ; Alexander, 227 N.W.2d 370 ( 1975� . 7. An "adverse effeet" on the "environment, atmosphere or image" is insufficient. H-CHH, 238 Ca1.Rptr. at 852. -18- 8. "[U]ndifferentiated fear or apprehension of disturbanee is not enough to overcome the right to freedom of expression." Tinker v. Des Moines Indep. Community Sehool Dist. , 393 U.S. 503, 508 ( 1969) ; Jamison v. St. Louis, 828 F.2d 1280, 1285 (8th Cir. 1987) , appeal pending. 9. Keeping the streets clean is insufficient. Lovell v. Griffin, 303 U.S. 444 ( 1938) . Furthermore, the City cannot rely upon an irrebuttable that any alleged part abuses will oceur in the future. Alexander v. City of St. Paul , 227 N.W.2d 370 ( 1975) . c. At a minimum, the procedural safeguards inelude: 1 . The burden of instituting a judicial proceedings must rest with the City; and, 2. The burden of proving, in an adversarial �udicial proceeding, that the specific nudity and/or nude daneing is obseene must rest with the City; and, 3. Any restraint imposed prior to the judieial proceeding must be for the shortest of specified times; and, 4. Any restraint imposed must only be for the purpose of preserving the status quo; and, 5. A prompt and final judieial determination must be assured. Southeastern Promoters, Ltd. v. Conrad, 420 U.S. 56�, 560 ( 1975) ; Pestrak v. Ohio Eleetion Com' n, 670 F.Supp. 1368 (S.D. Ohio 1987) ; -19- 1. . 4. .�S`aL�.. •�v 1��,... � .f�..) !y . .�1.� . L � _� . . . � iL.�ir ♦, a ! .) �.j i�.r v 1 ,. i� .. . `�V � . . . . � ' ' ' j� ' ' . i - � . ':If'../ i�r I"!�J i . . ��.:. rl �1: ..."1 r � .�... . . . . ��.T .� .-e�� _.. .6�.r� .. . . . .. . .�..r.�. �.« .�...�.►�. :. �._. �G i � J �f t_� � � e .�,. , , ,��1 p: . . . , , �r ..w� ._ r . _ .._.. .. . . t„`r, . . ,,�:,t�, ' r_ ( ' •'`.! � � - "! - ..�.,...�� " - . , . . -� . � .. �� , c�J .. ..�U� i , .. .. - �J1.�� _ 1 , . �J C. , _ .._� ,. . � � . - .. i t. � ?J�,�. —!1, A . . . � 1 � ;::��'ti�C��"`"1 1: ,t'!f� 1 Y f 2"{X i '�.f�9'i ,�, � e"� s3 i�� :•`�"�`-'"!"X`i . .. ='j .:�'�" .'iti�'r �;�:� ;i.f ''Y`. ,• ?: ''i?i.1:�� :�'lf:Cj, f}�S . 7* '� . ' _ ;. . ' !~i �� r / , Sei� . �:it� Zj.1.i::a �:� �'` , � _ _ . .�=,� '1.i.i'Jfr:� ��%^l�;J�?Ik�2 .L&^liJi`.3; . ',,:fib;iL' i'ff.�iT1 � �'� ' � _ i1;IJjt � t11,S:1�1.�i,1 J' 3f)•Yt�a Jlyn,' , i . , , , . , . .. ) . 1 .1c. .w ,�ie._I: . . c-t- . ...- !i i., ,. �r. . �i.' ..+,�._, � - �: .t . , �. .1: , _ )' ' ;i: '-'a'' . -�....,��..`'�..Y'. � � . ��1'' , . . ., �,. , .,.. � . . � y�} .. . w: . . .� !�• _ •\I � .J ,.n.'I-� . � �L G(v i . .. .. � i . .. r_ . - . �i�t�� . � , .��..�� . .. t;�i, i l ...— 4 �r i�)L'7 ♦Y . � .. � .. � . .�, � , .V�. � ar. .J .v ±, � . ..:��,�, .. �� _ (.1 F..�.i . 1 ' i�_, �'� '� a_��v i �t�t� 1 u r. . . r�-li..,� .- ,. �,� >r. . � .. ...r�...l ai. ,..i:�. � .. , . . ..... . -. r�' 1 ._ .. , . �. s. � 1.j �, ,�1 I< �, � , ,. ? : �.A� :.� �' � �Gr .G � '�,i� Ut�' �� c.�' `E,�;�(�'R: _l .�3r. " _ . ,- -�,-.. � �— . . . . � �.;� � . . _ �: ;�` - :,, `.. . . �.0 ,; .-, " ._ _ ;r:•�.; � � . � r,�r�� _ d �� .�, Wendling v. City of Duluth, �495 F.Supp. 1380, 1386-87 ( 1980) ; Bayside II, 470 F.Supp. at 114�4; Alexander v. City of St. Paul, 227 N.W.2d 370, 375-76 ( 1975) - Aecord Northwest Publications, Ine. , 259 N.W.2d 254, 257 (Minn. 1977) . Our very presence in these proceedings based upon Counts 3 and 4 establishes that the licensing seheme laeks these procedural safeguards. d. Criminal proceedings are currently pending coneerning the allegations contained in Counts 3 and 4. The fact that the City is, in addition, attempting to take adverse aetion, in these proceedings, against the licensee or the license held by MFL, Ine. on the basis of Counts 3 and � establishes that the means utilized by the City is not the least restictive alternative on protected expression. As the Minnesota Supreme Court has explained: The remedy presently available to the City of St. Paul for plaintifP� s [alleged] past abuses lies not in the suppression of the right to show all films, but in the eriminal prosecutions of constitutional obseenity laws. The risk that criminal sanetions will be insufficient to deter future violations of the ordinance cannot justify the city' s attempt to revoke plaintiff' s license in the face of his right to free speeeh guaranty of the First Amendment. Alexander v. City of St. Paul, 303 Minn. 201 , 227 N.W.2d 370, 373 ( 1975) . Accord Shelton v. Tucker, 364 U.S. 479, �188 ( 1960) ("even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breath of the legislative abridgment must -20- be viewed in light of less drastie means for aehieving the same purpose.") . Therefore, Counts 3 and 4 must be dismissed. 4. The Notice does not contain � allegation of � conviction of anything � either MFL, Inc. or Mr. Fan.--On its face, Seetion 409.06(3) mandates that no license be issued to any person who has been convicted of a willful violation of federal or state law or an ordinanee. Minnesota Statute §609•02(5) defines "convietion" as: '� ( 1 ) A plea of guilty; or (2) A verdict of guilty by a jury or a finding of guilty by a court." The City does not allege in the May 3, 1g88 Notice, nor can it allege, the either MFL, Inc. or Mr. Fan has ever been convieted of any willful violation of federal or state law or City ordinance. Because Counts 1 and 5 do not and cannot justify the Section 409.06(3) requirement that either MFL, Inc. or Mr. Fan be convicted of a willful violation of federal or state law or a City ordinanee, all Counts must be dismissed. 5. The allegations contained in the Notice do not refer to convietions for willful violations � either MFL, Inc. or Mr. Fan with regard to the manufaeture, sale, distribution or possession of intoxicating liquor.--Section 409.06(3) requires that the conviction for a willful violation of law or ordinance be " . . .with regard to the manufaeture, sale, distribu- tion or possession for sale or distribution of intoxicating liquor[ ] . . ." � the ep rson applying for the lieense. Firstly, none of the allegations contained in the Notice allege that either MFL, Inc. or Mr. Fan has engaged in -21- . , ��-�' _,��`� � Because the allegations contained in the Notice do not refer to any convietions of either MFL, Ine. or Mr. Fan of willful violations of laws or ordinanees that are with regard to the manufacture, sale, distribution or possession of intoxicating liquor, Counts 1 through 5 must be dismissed. 6. Counts 1 through 5 do not allege that either MFL, Inc. or Mr. Fan has ever had an on-sale liquor license revoked.--Section 409.06(3) disqualifies an applicant if the "person" has had an on-sale liquor lieense revoked for a willful violation of the liquor control aet or chapter 409. The Notice contains no allegation, nor can it, that either MFL, Inc. or Mr. Fan has ever had an on-sale liquor license revoked for a willful violation of such act or chapter. Therefore, Counts 1 through 5 must be dismissed. II . COUNTS 1 THROUGH 5 MUST BE DISMISSED BECAUSE THIS TRIBUNAL LACKS SUBJECT MATTER JURISDICTION TO DETERMINE WHETHER THE ALLEGED "SEXUAL PERFORMANCE" WAS OUTSIDE OF THE REALM OF PROTECTED EXPRESSION AND TO DETERMINE THE CONSTITUTIONALITY OF THE LICENSING SCHEME As diseussed supra at 9, nude dancing is a form of expression that is protected by the federal and state constitutions. Whether the alleged "sexual performanee" is out- side of the realm of protected expression can only be determined by a Court, in an adversarial proceedings--not in an administra- tive proceeding. E.g. , Southeastern Promotions Ltd. , v. Conrad, u20 U.S. 5�46, 559-60 ( 1975) ; Pestrak v. Ohio Elections Com'n, -23- � 670 F.Supp. 1368, 1377 �S.D. Ohio 1987) ; Alexander v. City of St. Paul , 227 N.W.2d 370, 375-76 ( 1975) , citing, Freedman v. Maryland, 380 U.S. 51 , 58 ( 1965) �"The teaching of our cases is that, beeause only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a �udicial determination suffices to impose a valid final restraint. ) . Indeed, for this tribunal to reeommend or for the City Couneil to revoke or refuse to renew the on-sale liquor license on the basis of Counts 3 or 4, without a prior judicial proceeding, is, in itself, a form of prior restriant in violation of due process and the freedom of expression. See Pestrak v. Ohio Eleetion Com' n, 670 F.Supp. 1368 (S.D. Ohio 1987) . In addition, if the City of St. Paul is attempting to take adverse aetion on the basis that the licensee is not of '�good moral character or repute" , this Tribunal lacks sub�ect matter jurisdietion over the constitutionality of the underlying statute and ordinanee. See e.�. , Montana Chapter of Ass' n of Civilian Technicians, Ine. v. Young, 514 F.2d 1165 (9th Cir. 1975) ; MeKee v. County of Ramsey, 245 N.W.2d �60 (Minn. 1976) ; Dation v. Ford Motor Co. , 31� Mich. 152, 22 N.W.2d 252 ( 19�6) . This result is demanded by the eonstitutional doctrine of separation of powers. See e.�. Roekne v. Olson, 191 Minn. 310, 25� N.W. 5 ( 193�) • To do any less could ultimately result in legislative bodies establishing "Star Chambers." ThereFore, this Tribunal laeks subject matter jurisdietion over all counts in the Notice and this proceeding must be dismissed. -24- , � III . IF COUNTS 1 THROUGH 5 ARE NOT DISMISSED, THESE PROCEEDINGS SHOULD BE STAYED TO ALLOW FOR IMMEDIATE APPEAL OR, IN THE ALTERNATIVE, STAYED PENDING THE OUTCOME OF THE CRIMINAL TRIAL If Respondent' s Motion to Dismiss--particularly Counts 3 and 4--is denied, it is appropriate to stay these proceedings to allow for an immediate appeal or, in the alternative, until the final determination of the criminal charges because these proceedings eonstitute a continuing violation of Respondent� s eivil rights, as follows: A. These proceedings violate due process and freedom of expression in that this Tribunal laeks subjeet matter �urisdiction over the question of whether the alleged sexual performanee is outside of the realm of proteeted expression. Supra at 23-2�. B. If the City of St. Paul attempts to take adverse action on the basis of laek of "moral character or repute�� , this Tribunal lacks sub�ect matter jurisdietion under the doetine of separation oP power. Supra at 23-24. C. These proceedings do not satisfy the mandates of due process and freedom of expression in that these proeeedings do not contain the minimum procedural safeguards required to invoke a prior restraint as a remedy in these proeeedings. Supra at 19. D. A eriminal proceeding has been initiated on Counts 3 and 4. To continue with these proceedings without the -25- . , �� completion of the eriminal proceedings or without a judicial determination of Respondent' s rights will efPectively deny him his ability to effectively partieipate in these proceedings and will effeetively deny him his right to a fair trial , to a jury trial , to the presumption of innocenee, to proof beyond a reasonable doubt upon competent evidence--all of whieh are guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States and by Article 1 , Section 7 of the Minnesota Constitution. In a praetial sense, a stay of these proceedings, if the Motion to Dismiss is denied, will advanee the interests oP the effieient use of administrative and judicial resourees. By allowing for immediate appeal of the denial of the motion to dismiss, the Courts may establish the appropriate standards under which these proceedings must be held, while proteeting Respondent' s civil rights. Similarly, by staying these proceedings pending the outeome of the eriminal trial , some issues present in these proceedings may be determined and Respondent� s civil rights will be proteeted. Denial of a motion to dismiss for lack of sub�eet matter jurisdietion is appealable as of right. Hunt v. Nevada State Bank, 285 Minn. 77, 172 N.W.2d 292 ( 1969) . However, if this Tribunal denies Respondent' s Motions to Dismiss and determines that a stay of these proeeedings is appropriate pending appeal, Respondent respeetfully requests that all of the constitutional questions asserted in Part I of this memorandum also be certified as important and doubtful pursuant to Rule 103.03(h) of the Minnesota Rules of Civil Appellate Procedure to expedite the appeal. -26- IV. IF THESE PROCEEDINGS ARE NOT DISMISSED OR STAYED, THE CITY OF ST. PAUL MUST SATISFY ITS BURDEN OF PERSUASION BY EVIDENCE, ADMITTED PURSUANT TO THE MINNESOTA RULES OF EVIDENCE, THAT ESTABLISHES VIOLATIONS BEYOND A REASONABLE DOUBT If these proceedings are not dismissed or stayed, then the standard and method of proof must be assigned. Section 1�00.7300(5) provides that: The party proposing that certain aetion be taken must prove the facts at issue by a preponderance of the evidence, unless the substantive law provides a different burden of standard. . . . See also, In re Kaldahl , 418 N.W.2d 532 (Minn. App. 198$) . In the eircumstanees of these proceedings, the City of St. Paul must, however, satisfy its burden of proof based upon standards greater than a preponderanee. In its Notice, the City alleges violations of law in Counts 1 , 3 and �. In order to prove violations of law, due process15/ requires that the City of St. Paul has the burden of establishing, beyond a reasonable doubt, that a crime, ineluding the element that the expression is beyond the realm of proteeted expression, ha� been committed and that the person alleged to have committed the crime has committed it. As the United States Supreme Court has explained: Where one party has at stake an interest of transcending value--as a criminal defendant his liberty-- 15/ Constitution of the United States, Amend. 5 and 14 and Constitution of the State of Minnesota, Art. 1 , §7. -27- this margin for error is reduced as to him by process of placing on the other party the burden of produeing a sufficienep of proof in the first instanee, and of pursuading the fact finder at the eonelusion of the trial of his guilt beyond a reason- able doubt. . . . Where the transeendent value of speeeh is involved, due process certainly requires in the circumstanees of this case that the State bear the burden of persuasion to show that the appellants engaged in eriminal speeeh. Speiser v. Randall, 357 U.S. 513, 526 ( 1958) (emphasis added) . In addition, the City of St. Paul must �atisfy this burden aceording to the Minnesota Rules of Evidenee--not by "hearsay evidence, which possesses probative value commonly aecepted by reasonable and prudent persons in the conduet of their affairs." 16/ pestrak v. Ohio Eleetions Com�n, 670 F.Supp. 1368 (S.D. Ohio, 1987) . Furthermore, the licensee is entitled to a presumption that the nude daneing alleged in Counts 3 and 4 is within the realm of proteeted expression. The application of the "beyond a reasonable doubt" standard and the Minnesota Rules of Evidence is particularly important to Counts 3 and 4 because Mr. Fan has been criminally charged under Minnesota Statutes §617.246. To hold that the City has any lesser standard of proof in the present proceedings, would effectively deny Mr. Fan his due process rights, inter alia, to a fair trial , to a jury trial , to the presumption of innocence and to the introduetion of competent evidence. �� Section 310.05(e) of the St. Paul Legislative Code. -28- . � ��`°�,'S � lj�'j,C�� Similarly if the City is attempting to prove violations of staute or ordinanee in Counts 2 and 5, it must also satisfy these standards. See State v. Pazderski , 352 N.W.2d 85, 87 (Minn. App. 1984) ("LT]he standard of proof in misdemeanor cases is proof beyond a reasonable doubt." ) In re Kaldahl, �418 N.W.2d 532 (Minn. App. 1988) is not to the contrary. In Kaldahl , Mr. Kaldahl was asserting res �udicata on the basis of his prior acquittal on criminal charges. Mr. I{aldahl had already been afforded his due process rights, including a burden of prooF beyond a reasonable doubt based upon competent evidenee. A subsequent administrative proceeding on a lesser standard would, therefore, not jeopardize his constitutional rights to due process. If this Tribunal determines that the "beyond a reason- able doubt" standard is not applicable to Counts 3 and 4, the City of St. Paul must be held to satisfy their burden of proof by elear and convincing evidenee introduced in conformity with the Minnesota Rules of Evidence. Pestrak v. Ohio Elections Com'n, 670 F.Supp. 1368 (S.D. Ohio 1987) . Furthermore, the City of St. Paul must prove by elear and eonvincing evidence that the expression is outside of the protections afPorded by the First Amendment of the United States Constitution and Article 1 , §3 of the Minnesota Constitution. Pestrak v. Ohio Eleetions Com�n, 670 F.Supp. 1368, 1375-78 (S.D. Ohio 1987) . See also, Boise Corp. v. Consumers Union of U.S. , Inc. , 466 U.S. 485, 511 ( 198�+) -29- ("The question whether evidenee in the record in a defamation case is oP the convineing elarity required to strip the utterance of First Amendment proteetion is not merely a question for the trier of fae�. Jud�es, as expositors of the Constitution, must independently decide whether the evidenee in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convineing proof of 'actual maliee. � " ) . If this Tribunal determines the allegations alleged past abuse of the freedom of expression may constitutionally form the basis for a prior restraint in the form of a license revocation or non-renewal (see supra at 8-21 ) , then the City has the burden of proving, by clear and convincing evidenee, that: 1 . Nude dancing and the viewing thereof from bars presents a clear and present danger of a substantive evil; 2. The licensing scheme has sufPicient procedural safeguards to reduce the danger of suppressing constitutionally proteeted expression; and, 3. The revocation or non-renewal of a liquor license imposes the least amount of restrietions protected expression. Supra at 14-21 . -30- • � V• IF THESE PROCEEDINGS ARE NOT DISMISSED OR STAYED, EVIDENCE AND TESTIMONY IN THIS MATTER MUST BE LIMITED. A. Police Reports And Records, Together With All Testimony Related Thereto, That Have Not Been Followed � A Valid Convietion Must Be Executed From Evidenee Pursuant To Minn. Stat. 3 0.1�0 .-- — The Assistant City Attorney has indicated that he may introduce police reports, records and testimony coneerning alleged oecurrences both on and off the licensed premises. To the extent that these records and/or reports of alleged incidents have not led to a valid convietion, such evidenee, if proffered, must, be exeluded as being in direct contravention of Minn. Stat. §36�.0�l, which provides in relevant part: The following eriminal records shall not be used, distributed, or disseminated by the state of Minnesota, its agents or political subdivisions in connection with any application for public employment nor in connection with an application for a license: (1) Records of arrest not followed by a valid conviction. . . . In our revi,ew of the cases, we did not find cases where such reports were obviously admitted into enidenee absent a prior conviction. See e.�. , Matter of Minn. Joint Underwriting Ass'n, -31- �08 N.W.2d 599 �Minn. App. 1987) (guilty plea) ; Miller v. City of St. Paul, 363 N.W.2d 806 (Minn. App. 1985) (convietions) ; Godfather, Inc. v. CitY of Bloomington, 375 N.W.2d 6$, 71 (Minn. App. 1985) �"extraneous matters were not litigated and would not be an appropriate basis for license denial.") ; Vruno v. Schwarzwalder, 600 F.2d 124 (8th Cir. 1979) (guilty plea) . Similarly, testimony coneerning arrests, without valid convie- tions, should be excluded as a '�dissemination" of the underlying report. B. Testimony Profferred � Persons Ownin And/Or Occupying Property More Than 200 Feet From The Licensed Premises Do Not Have A "Substantial Interest" In The Proceedings And Must Be Excluded. In the Notice, the Assistant City Attorney indicated that: The Administrative Law Judge may in addition hear relevant and material testimor�y from persons not presented as witnesses who have a substantial interest in the outcome of the pro- ceeding; for example, the owners or oceupants of property located in elose proximity to the licensed pre- mises may have substantial interest in the outcome of the proceedings. The City of St. Paul has, in efPect, already defined "substantial interest" and "in elose proximity" . Section �11 .04(b) (2) requires that consent of 60� of the owners and -32- . , ��' .,�� oecupants of property within two hundred (200) feet of the licensed premises17� before the City Couneil will even consider issuing an entertainment license for entertainment in premises subjeet to an on-sale liquor lieense. Thus, the City of St. Paul has set a standard to deter- mine what is a "substantial interest" and what is "in elose proximity'� . In the interests of due process and fundamental fairness, �s� the City must hold to its own standards in these pro- ceedings. Therefore, if relevant testimony is allowed in this hearing by persons other than witnesses, the testimony must be limited to those persons who own or oceupy property within two hundred (200) feet of the licensed premises. C. Hearsay Evidence Should Be Excluded For all the reasons set forth supra at 27-30, hearsay evidenee should be excluded from these proceedings. CONCLUSION For the foregoing reasons, Counts 1 through 5 must be dismissed. 17� "[M]easured in a straight line from the nearest point of the building where the intoxicating liquor is sold. . .to the nearest point of the property line owned, leased or under the eontrol of the resident. . . . St. Paul Leg. Code §411 .04(1) . 18� See e.�. , Minn. Const. Art. 1, §7. -33- . . If this Tribunal does not dismiss these proceedings, 1 . These proceedings should be stayed pending appeal or pending a final determination of the criminal proceeds. If these proceedings are stayed pending appeal, the constitutional questions raised by respondent should be certified as important and doubtful; 2. The City of St. Paul must be held to a "proof beyond a reasonable doubt" standard supported by evidenee that is admissible pursuant to the Minnesota Rules of Evidence; 3. Police records, reports and testimony that has not led to valid convietions must be excluded from evidence pursuant to Minn. Stat. §36�.04; �. Testimony from persons other than witnesses should be limited to persons who own or oceupy property within 200 feet of the licensed premises; and 5. Hearsay evidenee should be excluded. Dated this 23rd day of May, 1988. Respeetfully submitted, COCHRANE & BRESNAHAN, P.A. By J es . Bresnaha , I .D. �11307 Mary . Seymour, I .D. #99�5� Attorneys for David Fan 24 East Fourth Street St. Paul , Minnesota 55101-1099 (612)298-1950 -3�- �` �_�•• �.' . CITY OF SAINT PAUL f �� ! � �r:,r ; .r OFFICE OF THE CITY ATTORNEY e� 'nnaur ,: --- :; "' 1O° ��` ' EDWARD P. STARR, CITY ATTORNEY ,,r . '�o,�,�� 647 City Hall, Saint Paul,Minnesota 55'102 GEORGE LATIMER Y 612-298-5121 MAYOR � May 3, 1988 ��^ti� � �� Mr. Dav id S. F. Fan ' " ��`� The Belmont Club ' 615 University Avenue Saint Panl , MN. 55103 NOTICE OF HEARING . RE: The Belmont Club Dear Mr . Fan : � ' This is to notify you that a hearing will be held concerning the licensed premises stated above at the following time, date and place: Date : May 24-25, 1988 Time: °: 3g A.M. � Place: 4th floor Auditorium, St . Paul Public Library 90 West Fourth Street, St. Paul , Mn. 551�l2 The judge will be an Administrative La,w Judge from the State of Minnesota Office of Administrative Hearings : Nam e: Ms . Ca r o 1 Gr an t Address : 2464 Stevens Avenue South , Minneapolis , Mn . 55404 Telephone: 871-9PJ04 . The Council of the City of Saint Paul has the authority to � provide for hearings concerning licensed premises , and for ac:tion against such licenses , under Chapter 31�J, including sections �� 316.05 and 314J.06, of the Saint Paul L�egisla•tice Code. Ir� .the case of licenses for intoxicating and non- intoxicating lic�uor , author.i'ty is also conveyed by section 340A.415 of •the MinnESOta Statutes. Evidence wi�l be presented to the judge which may lead to adverse , • action aga xnst the 1 icense or 1 icenseholder as follows : . 1 . The unlawful sale of drugs in the parking lot of the licer�sed premises by an employee of the licensee on or about November 10, 1987. � 2. Interference with police officers in the performance of their assignment by an employee of the licensee on or about January 23, 1988 . . � �, _ �� - /�.� � ... . . 3. The unlawful employment by the licensee of a minor for sexual performances in violation of Minnesota Statutes, section 617. 246 on or about February 2, 1988 . 4. Permitting a minor to engage in a sexual performance in violation of Minnesota Statutes, section 617. 246, on or about February 2, 1988, on or visible in the licensed premises. 5. The occurrence of acts of solicitation for prostitution, prostitution and prostitution=related activities in the 1 icensed prem ises ; on the parking lot behind the 1 icensed premises , and in the immediately adjacent area, all of which constitute (1) a nuisance, and (2 ) create or have created a ser ious danger to the publ ic health , sa fety and wel fare. Such actions have occurred on many occasions throughout 1987 and early 1988. You have the right to be represented by an attorney before and during the hearing if you so choose, or you can represent yourself. You may also have a person of your choice represent you , to the extent� not prohibited as unauthorized practice of law. The hearing will be conducted in accordance with the requirements of sections 14.57 to I4. 62 of the Minnesota Statutes , and such parts of the procedures under section 31�. 05 of the Saint Paul Legislative Code as may be applicable. � At hearing , the Administrative Law Judge taill have all parties identify themselves for the record. Then .the City will present its witnesses and evider�ce, each of whom the licensee or attorney � � may cross-examine. The licensee may then offer in rebuttal any witnesses or evidence :t may wish to present , each of whom the • City attorney may cross=examine. The Administrative Law Judge may in addition hear relevant and material testimony from persons not presented as witnesses who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants of property located in close prox imity to the 1 icensed premi ses may have substantial interest in the outcome of the proceeding. - Concluding arguments may be made by the parties. Following the • � � , hearing, the Judge will prepare Findings of Fact, Conclusions of � ' Law, and a specific recommendation for action to be taken. You should bring to the hearing all documents , records and wi tnesses you will or may need to support your posi tion . Subpoenas may be available to compel the att�ndance of witnesses or the production of 8ocuments in conformity with Minnesota Rules, part 140P1.70G10. � 1 � . If you think that this matter can be resolved or settled without a formal hea�ring , please contact or have your attorney contact the undersigned. If a stipulation or agreement can be reached as to the facts , that stipulation will be presented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. If you fail to appear at the hearing, the allegations against you which have been stated earlier in this notice may be taken as true and your ability to challenge them forfeited. If non=public data is received into evidence at the hearing , it may become publ ic snless otj ection is made a�d rel ief requested under Minnesota Statutes , section 14. 60, subdivision 2. ' � Very truly yours, � � . PHILIP . BYRNE , Assistant City Attorney (612 ) 298=5121 Attny. Reg . No . 139�1 cc: James R. �re�sn��bn, Ssq. Jo seph F. Carched i License Inspector Lt . Don�ld Winger . Vice Unit Albert B. Olson ' City Clerk . Ms . Carol Grant � � ' I�dministrative Law Judge r♦ � ' ��-,�� ,, a. City-88-021-CG 53-2101-2�427-G STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL AND CITY COUNCIL FOR THE CITY OF ST. PAUL In the Matter of the On-sale Liquor License for the Belmont Club RESPONDENT'S OBJECTIONS TO THE CITY COUNCIL'S PROPOSED FINDINGS, CONCLUSIONS AND ADVERSE ACTION `I � TABLE OF CONTENTS I . INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II . RESPONDENT'S OBJECTIONS TO THE CITY COUNCIL'S PROPOSED FINDINGS AND CONCLUSIONS . . . . . . . . . . . . . . . . . . . 1 A. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS RES 1 AND 2, N0. 1 . . . . . . . . . . . . . . 1 B. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 AND 2, N0. 2 . . . . . . . . . 7 C. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 , N0. 9 AND RES. 2, N0. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 D. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 , N0. 11 AND RES. 2, N0. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 E. OBJECTION TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 , N0. 12 AND RES. 2, N0. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 F. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 , N0. 15 AND RES. 2, NO 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1� G. OBJECTION TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 , N0. 1 AND RES. 2, N0. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 H. FURTHER OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 , N0. 18 AND RES. 2, N0. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 I . OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 , N0. 19 AND RES. 2, N0. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 J. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 , N0. 20 AND RES. 2, N0. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 K. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 , N0. 21 AND RES. 2, No. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 L. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS MADE BY THE ALJ . . . . . . . . . . . . . . . 30 ,t a II . RESPONDENT'S OBJECTIONS TO THE CITY COUNCIL'S PROPOSED CONCLUSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 A. OBJECTIONS TO PROPOSED COUNCIL CONCLUSION N0. 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 B. OBJECTIONS TO THE COUNCIL'S PROPOSED CONCLUSION N0. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 C. OBJECTIONS TO THE COUNCIL'S PROPOSED CONCLUSION N0. 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 III . IF THIS COUNCIL PASSES ONE OF THE PROPOSED RESOLUTIONS, A STAY IS APPROPRIATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 ,r � �!i .µ,�� I . INTRODUCTION Respondent hereby submits these Objections to the City Council� s Proposed Finding, Conclusions and Adverse Aetion. As set forth below, the proposed Findings, Conclusions and Adverse Aetion are arbitrary and capricious, clearly erroneous, outside of and in excess of this Council' s jurisdietion and statutory authority, in violation of constitutional provisions, made upon an unlawful procedure and unsupported by substantial evidence in view of the entire record. Respondent respectfully requests that this Council does not pass its Proposed Findings, Conelusions and Adverse Action contained in either Resolution No. 1 or No. 2 in light of the following objeetions. If, however, this Couneil does pass one of the Proposed Resolutions, Respondent respectfully requests that the Couneil stay the effective date of the resolution, pursuant to Minnesota Statute §1�4.65, pending a final decision upon all appeals. II . RESPONDENT'S OBJECTIONS TO THE CITY COUNCIL'S PROPOSED FINDINGS AND CONCLUSIONS A. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS RES 1 AND 2, N0. 1 : The Notice of Hearing dated May 3, 198$ was proper in this matter and all procedural requirements of law or rule have been fulfilled by the City. �� RES - Proposed Resolution -1- Respondent has been denied his fundamental rights to adequate notice and due proeess in these proceedings because the Members of this Council have not followed their own policies, rules or procedures, as follows: 1 . None of the Members of the City Council attended the adverse hearing in this matter held on May 2� and 25 , 1988; thus, none of the Members have had the opportunity to hear the testimony and view the demeanor of the witnesses. Indeed, some members admitted that they had not even read the complete transeript of the proceedings or viewed the documents that were admitted into evidence. Therefore, the Members of this Council laek any basis upon whieh to judge the credibility of witnesses, to assign wei�ht to testimony or to make inferenees coneerning the motivation of witnesses or the reasonableness of actions in controvention of the Findings and Conclusions made by the administrative law judge (hereinafter "ALJ" ) . Therefore, all proposed omissions, rejections, changes, additions and amendments of the ALJ' s Findings and Conclusions coneerning these matters are clearly erroneous, arbitrary and capriciousness, lack a substantial basis in the evidence and are contrary to law. 2. Certain members have admitted durin� the course of the August 11 , 198$ proceeding that they had not read the complete record of the proceedings before the ALJ judge prior to voting on the proposed Council Findings, Conclusions and Adverse Aetion. -2- 1 •� 3. Highly prejudicial matters coneerning personal visits to a different establishment, whieh were outside of the record, which were not ineluded in the notice, and whieh were extraneous to these proceedings, were brought up and "testified to" by a Couneil Member during the August 11 , 1988 proceedings. Every other Council Member heard this highly prejudicial extraneous "testimony" by the Couneil Member. This "testimony" clearly prejudiced the Respondent and the hearing process. Furthermore, it violated the Couneil' s own rules. 4. Durin� the August 11 , 19$$ hearing, the City Couneil did not sit as an unbiased judicial body. It did not make Findings and Conclusions based upon the record. It viewed the Assistant City Attorney (the attorney for the License Inspector)--not as an advocate--but as "our attorney." It made Findings and Conclusions based upon what it thought Mr. Byrne wanted. Although certain members expressed disagreement with Mr. Diamond, the Council, in faet, followed Mr. Diamond's suggestions, which were as follows: I would suggest that as far as the fact that we adopt the findings of Pacts as amended by Council Byrne those amendments--the whole set. I don' t think we want to leave out any of those findings of faets. We may emphasize specific points, but I think we need to take his findings of findings of faets with his amendments. . . . Mr. Byrne is going to have to go to court to support this case, I suspeet. And I guess I don� t see any grievous error in the points he' s making and I would not want to handcuff him in any way in making his case. He believes that this is the best case and I would like to leave him with the strongest case that he has. . . . -3- �, .. ��`�� . . . I'll tell you why I'm arguing to put these in and won� t argue legalities with you and what' s the best. . . But the reason why I'm doing this is this is after the hearing and the hearing examiner ALJ did their job, our attorney, Mr. Byrne, counsel paid, experienced counsel , not counsel other counsel, our left-hand counsel , went to work and looked at what were the issues in the case and tried to outline what are the important points and how to best define those points to support our case. Now, I , to be perfectly honest, I believe he has done a good job and I believe in the overall concept. As to how you word these findings to have the best legal case I don� t feel experienced or qualified to make those decisions. So by wording these making these changes we may think where I might think I 'm doing a better job but I don� t have the experienee in the law to make judgments so I would rather go with his. The Council did not make any determination, based upon the record, that the ALJ' s Findings and Conclusions were unsupported in the record, clearly erroneous, or contained legal error. Indeed, even when Respondent' s Counsel pointed out uncontroverted evidence in the record, the record was ignored. Except for one Exeeption, the Council did not consider Respondent' s Exceptions to the ALJ' s Findings and ignored uneontroverted evidence in the record to support those Exceptions. The Council did not consider the ALJ' s Conclusions. The only basis that the Council had for making the extensive changes to the ALJ' s Findings and Conclusions was to adopt Mr. Byrne' s Exeeptions so that "our attorney" had the facts defined in the best way "to support our case." 5. On Mareh 31 , 1988 this Couneil passed a resolution (effective April 9, 1988) that states, in relevant part: -4- �� . , .The Couneil� s or committee' s scope of review of the hearing examiner' s recommended findings of fact and conclusions of law shall be limited to whether legal errors were made or whether the decision was elearly erroneous given the evidence presented. The City Attorney argues that the ordinance (published May 28, 1988 and effective 30 days thereafter) supersedes this resolution. The ordinanee states, in relevant part: Seetion 2 That Section 310.05 of the Saint Paul Legislative Code is hereby amended so as to add the following new Subseetions thereto. . . . (c-1 ) Procedure: hearing examiner. The hearing examiner shall hear all evidence as may be presented on behalf of the city and the applicant or licensee, and shall present to the Couneil written findings of fact and eonelusions of law together with a recommendation for adverse aetion. The Council shall consider the evidence contained in the record, the hearing examiner� s recommended findings of faet and conclusions, and shall not consider any factual testimony not previously submitted to and considered by the hearing examiner. The Couneil at a publie hearing shall provide the applicant or licensee an opportunity to present oral or written arguments alleging error on the part of the examiner in the application of the law or interpretation of the facts, and to present testimony related to the recommended adverse aetion. Upon conelusion of the hearing, and after considering the record, the examiner' s findings and recommendations together with sueh additional arguments and testimony presented at the hearing, the Council shall determine what, if any, adverse action shall be taken, which aetion shall be by resolution. The Council may accept, re�eet, or modify the recommendations of the hearin� examiner or committee. -5- Section 3 This ordinanee shall take effeet and be in foree thirty days from and after its passage, approval and publication. This argument fails in four respeets: a. The Notice of Adverse Hearing in this matter was received May �, 1988 and the adverse hearing was held on May 24 and 25, 1988• Clearly, the resolution was in effeet as of the Notice of Adverse Hearin� and as of the dates of the hearing, but the ordinance was not in effeet as of those dates. Therefore, the adverse hearing was conducted on the basis of the resolution and Chapter 310 of the Code and the Administrative Procedures Act as it then existed. b. The City did not provide the Respondent with any "notice" of the proposed "change" in the rules until Respondent' s attorney� s received the City's Brief and Final Argument on June 21 , 19$$.2/ The City' s Brief and Final Argument did contain the new ordinance, but it also contained the resolution. The City did not say that the ordinance superseded the resolution. Indeed, they were both cited as authority for the use of a hearing examiner. c . The new ordinance does not diseuss the Council' s scope of review concerning the findings and conclusions of the ALJ. It does not reject the standard set forth in the resolution and it does not set any different standard. In fact, the language of the ordinance is consistent with the resolution in that it limits the licensee' s arguments to error in the ALJ's application of law or interpretation of the fact. 2� The ordinance, by its terms was not in effeet until June 28, 1988. -6- d. The ALJ, as the trier of fact, was the only person who has the ability to view the demeanor and determine the eredibility of the witnesses. The Members did not attend the hearing. The Council , therefore, sits as a reviewing body and should be held to the same standard of review as other reviewing bodies because it has no basis to judge the credibility of witnesses. It has been long established that when the trier of the facts has a choice between conflicting evidence or diverse inferenees may be drawn from the evidence, its conclusion must stand unless manifestly elearly contrary to the evidence. Nelson v. Lutheran Mutual Life Ins Co. , 311 N.W.2d 527, 249 N.W.2d 455 ( 1976) . At this late date, the Council cannot chose to disregard its own resolution, without adequate notice to the Respondent, in order to omit, rejeet, and amend the Findings and Conclusions made by the ALJ after she--and not the Couneil--has had opportunity to view the credibility of the witnesses and assign weight to the evidence. 3/ This unlawful procedure not only violates Respondent' s fundamental rights to adequate notice and due process, it is in excess of statutory authority and is evidenee that the Council' s proposed action is arbitrary and capricious. B. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 AND 2, N0. 2: . . .Ms. Osterman received $250-300 per week salary from the Belmont and another bar to manage the daneers. On March 15, Naney 3� Indeed, under both the resoluiton and the new ordinances, the council is precluded from taking any faetual testimony. -7- �, . ��-,��`� � Osterman, the manager of Daneing Angels, paid David Fan $20 and thereby purchased the stoek of Daneing Angels, along with $15-18 in liabilities. Now she receives approximately $100 per week of the $1 ,8�42 per week transferred to Dancing Angels from the Belmont. The rest of the $1 ,842 is used to pay dancers. These findings are incorrect and unsupported by the evidence in the following particulars: 1 . Uncontroverted testimony clearly indicates that prior to Ms. Osterman' s purchase of Dancing Angels, Inc. , her salary was paid by Daneing Angels--not the Belmont and another bar. Q. Previous to the transfer, had you received a salary from Dancing Angels? A. From--yes. Tr. at 25�. 2. The uncontroverted testimony clearly indicates that, prior to Ms. Osterman' s purehase of Dancing Angels, Ine. , her salary as manager was $250-300 per week for everything she did for Daneing Angels, Inc. All customers paid Dancing Angels, Inc.--not just the Belmont and another bar. Q. What was your total salary for-- A. For everything? The bars in Wiseonsin? Q. --everything that you did for Daneing Angels before the transfer. A. 250-300 a week. Tr. at 25�. 3. The uncontroverted testimony clearly indieates after Ms. Osterman' s purehase of Dancing Angels, Inc. , she received "[a]bout $100 more a week" in salary. Tr. at 25�. Emphasis added. -8- ,` r+ 4. The uncontroverted testimony clearly indicates that Ms. Osterman, as president and sole shareholder of Dancing Angels, Ine. , pays other expenses, such as workmen' s compensation insuranee, out of the fees received by Dancing Angels, Inc. Tr. at 252. 5. The uncontroverted testimony clearly indicates that Ms. Osterman also paid one-half of the attorney' s fees in the purchase of Daneing Angels, Inc. Tr. at 256. C. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 , N0. 9 AND RES. 2, N0. 3: . . .She [T.D.M. ] was hired by David Fan. T.D.M. did not sign a eontraet with the so-called Daneing Angels, Inc. until seven weeks after her audition. She was clearly an employee under the direetion and control of David Fan. T.D.M. did not furnish Nancy Osterman or David Fan with a copy of her birth certificate or any other proof of age when she was hired, or at any time thereafter. A reasonable person would have inquired further about T.D.M. ' s age, given all of the faets and circumstanees at the time she was hired. T.D.M. ' s testimony that she was not required to prove her age is credible; she had no motive to testify falsely in the license hearing, and no interest in the outeome of the license proceedings. Testimony of witnesses for the Belmont contradicted each other on matters relating to the control and management of the dancers, and all had an interest in the outcome of the proceedings. These inferences, findings and conelusions are not supported by substantial evidenee and are contrary to law. 1 . T.D.M. was hired and paid by Dancing Angels, Inc.--not the license. Plaintiff' s Exhibit 3; Respondent' s -9- �t , ��"°�`�`'� � Exhibit A; ALJ Conclusion 8; ALJ Memo at 7-8. MFL, Ine. is the licensee. ALJ Finding 1 ; PlaintifP Exhibit 6. In addition, the decision to hire T.D.M. was made by Nancy Osterman, as manager of Dancing Angels, Inc.--not by Mr. Fan. Ms. Osterman arranged the audition and asked T.D.M. her age. Tr. at 90, 93. David Fan did not talk to T.D.M. during her audition. Tr. at 92. See also Tr. at 99• Ms. Osterman was present when T.D.M. signed her contraet with Daneing Angels, Inc, and Mr. Fan had presigned the contract in 1985. Tr. at 2�40-�41 ; ALJ Finding 9; Respondent' s Exhibit A. Furthermore, Ms. Osterman testified as follows: Q. Are you the person who interviews all the dancers? A. Yes. Q. And hires all the daneers? A. Yes. Tr. at 241 . . . . Q. But during the time that you were manager, were you doing all the hiring of the girls, basically? A. Yes. Tr. at 259. Furthermore, the authority of a manager to hire, fire and discipline personnel is consistent with Mr. Fan' s legitimate management style. See e.�. Tr. at 90, 92, 95, 187, 196, 200, 212, 218, 222, 225, 231 , 259. -10- �� r 2. Daneing Angels, Inc. is not '�so-ealled" ; it is a separate legal entity. Dancing Angels, Inc. is a corporation duly organized and existing under the laws of the State of Minnesota. At all relevant times hereto, it operated as a corporation and not as a sole proprietorship. See e.�. , Tr. at 23�-232, 234, 259; Plaintiff' s Exhibit 3. There is no basis in the record upon whieh the Council may ignore the corporate entities and reject the ALJ' s Findings and Conelusions. T.D.M. was hired by and was an employee of Daneing Angels, Inc.--not MFL, Ine. , the licensee. Respondent' s Exhibit A; ALJ Conclusion 3 and Memo at 8. 3. T.D.M. did not si�n a contract with Daneing Angels, Ine. until January 4, 19$$ because she was on probation. Tr. at 2�6-247. January 4, 198$ was the first meeting with the daneers after the probation and the holidays. Tr. at 247. �4. T.D.M. was under the direetion and control of Naney Osterman. The testimony is not ineonsistent. E.g. , Tr. at 226, 230-231 , 241 . The only time David Fan talked to T.D.M. was to tell her to get out of the bar because she was under 21 years of age. Tr. at 92, 99-100; ALJ Finding 13; ALJ Memo at 9. 5. T.D.M. furnished a birth certificate at her audition that indicated that she was at least 18 years of age. Tr. at 2�43, 2��4, 249. 6. The ALJ found and the uncontradieted evidence clearly establishes that T.D.M. wore more makeup and her hair -11- L� 1 stood up more than it did when she testified in court. ALJ Finding 11 ; Tr. at 100. T.D.M. is well developed. Tr. at 257. T.D.M. looks older than her age, and could be mistaken for an eighteen-year-old. ALJ. Finding 11 . Because the Members of the Council were not present at the hearing, the Couneil lacks a sufficient evidentiary and legal basis (Su ra at 2-3, 6-7) for adding an inferenee that a reasonable person would inquire further. 7. T.D.M. is not a credible witness. She is an admitted liar (Tr. at 90, 93, 105) who procurred employment with Daneing Angels, Inc. under false pretenses (Id. ALJ Conclusion 8) and who procurred false identification (City Ex. 2) . It is more reasonable than not to infer that T.D.M. ' s motivation for testifying that she did not produce a false birth certificate is that she does not want to be charged with false identification, particularly given her proved propensity to lie. The ALJ made no findings or conelusions concerning the motivation of any of the witnesses. 7. The witnesses for the Belmont did not contradict each other over the control and management of the dancers. No. 1 su ra at 10; No. � su ra at 11 . D. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 , N0. 11 AND RES. 2, N0. 3: . . .There was evidence showing another incident concerning a sixteen year old dancer, not -12- � � �i �`,._ �/'�`� � �l alleged in the Notice of Hearing, but raised by counsel for Respondent in his eross- examination of Officer Meyer. (Tr. at 78-79) . This daneer was about to perform on the stage and had no identification or proof of age. This Finding and Conclusion is not supported by the record. As the ALJ explained in her Memorandum at 9: The City notes that there is an incident regarding another underage employee which was not raised in the Notice of Hearing. This incident involved a sixteen-year-old who presented two I .D' s that matched up. One was a state I .D. , and one was a copy of a birth certificate. When the situation was discovered, no charges were brought against the Club. The evidence is insufficient to conclude that the Club was culpable in this incident. E. OBJECTION TO PROPOSED COUNCIL FINDINGS AND CONCLiJSIONS TO RES. 1 , N0. 12 AND RES. 2, N0. 5: . . .Nonetheless, a reasonable person would not have aceepted her assertion of age at face value, but would have inquired further as to her age. Daneing Angels, Ine. did inquire into T.D.M. ' s age. They were shown a birth certificate. Tr. at 243, 2��, 249. Althought he ALJ did rejeet this testimony, she was clearly erroneous in doing so. She accepted the testimony of an admitted liar over Ms. Osterman who proeurred employment under false pretenses and who procurred additonal false identification. Tr. at 90, 93, 105; Plaintiff Ex. 2. -13- F. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 , N0. 15 AND RES. 2, NO 7: . . .David Fan was present in the Club on February 2, 1988, and Officer Rogers characterized the Club' s general attitude toward the police as "more than cooperative. " At approximately 10:00 p.m. on February 2, Officer Rogers obvserved T.D.M. wearing a halter or bikini top with a matehing mini-skirt. While daneing, T.D.M. exposed her pubic areas and buttoeks by lifting her skirt and by squatting while facing males seated at stageside. While squatting, T.D.M. performed several pelvie thrusts and spread her legs in such a manner as to expose her inner vaginal area. During a second song, T.D.M. returned to the stage wearing only the top of her costume and continued to dance in a similar manner, including the fondling and touching of her breasts and gential area. During a third song, T.D.M. returned to stage wearing only high-heeled shoes. She then continued to dance as previously described and also lay on her back with her feet on the stage, while bending her knees at a 90 degree angle. In this position, T.D.M. bridged her baek, spread her legs, and performed numerous pelvic thrusts toward the patrons. This maneuver was accompanied by the touehing and fondling of the breasts and genital area. These findings and conclusions are contrary to the evidenee and the admission into evidence of Officer Roger� s police report is elearly erroneous, as follows: 1 . There is no evidence in the record to support a finding that Mr. Fan was in the Belmont on the night T.D.M. was arrested on a warrant. Indeed, the only evidenee as to whether Mr. Fan was in the Belmont on the night of T.D.M. ' s arrest is to the contrary: -14- . � Ms. Osterman: Q. Do you know if Mr. Fan was on the premises on the night that [T.D.M. ] got arrested? A. No, he wasn' t. Tr. at 257. The Assistant City Attorney, when pressed durin� argument before this Couneil to point to a place in the record to support a finding that Mr. Fan was present when T.D.M. was arrested, cited Tr, at 137-13$ which states, in relevant part: A. . . .And we would get calls occasionally when whoever would inform us of what hours she was working in an effort to get her picked up. . . . Q. When you worked in the vice squad and you had knowledge that possibly this person who was under a warrant was working and dancing. . .at the Belmont Club; did you ever ask Mr. Fan to cooperate with the police coneerning that? A. I don� t believe so. . . . Q. But the vice squad was aware of it? A. Yes. Q. And to your knowledge you didn' t do it? You didn' t ask Mr. Fan for his cooperation, did you? A. No, I went in there looking for the young lady. Emphasis added. -15- •� J .If 4�� ^ ��( rP�.. �+ Gi This passage says nothing whatsoever about whether Mr. Fan was present on the night T.D.M. was arrested. It simply states that even though the vice squad had information concerning T.D.M. they did not, at any time, ever ask for Mr. Fants assistanee. The City has the burden of proving that Mr. Fan was present on the night of T.D.M. ' s arrest. Infra at 57-59• Any inference that he was present is contrary to the only direct evidence contained in the record. Therefore, the finding is not supported by the evidenee. 2. The only evidence to support the remainder of this challenged Finding and Conelusion was Officer Roger' s police report. (Plaintiff' s Exhibit 5) . This police report was erroneously admitted into evidenee, over Respondent' s objections in contravention of Minnesota Statutes §36� et s�ce . Minnesota Statutes §36�.04 provides, in relevant part: The following eriminal records shall not be used, distributed, or disseminated by the state of Minnesota, its agents or political sub- divisions in connection with any application for publie employment nor in conneetion with an applieation for a license: ( 1 ) Records of arrest not followed by a valid convietion. . . . Furthermore, Minn. Stat. §364.07 provides: The provision of sections 36�4.01 to 364. 10 shall prevail over any other laws and rules whieh purport to govern the granting, denial , renewal, suspension, or revocation of a license or the initiation, suspension, or termination of public employment on the grounds of convietion of a erime or crimes. -16- In deciding to grant, deny, revoke, suspend, or renew a license, or to deny, suspend, or terminate public employment for a lack of good moral eharaeter or the like, the hiring of 1 e sing authority � consider evidence of convietion of a crime or crimes � only in the same manner and to the same effect as provided for in sections 36 01 to 3 . 10. Nothing in seetion 3 .01 t—�4. 10 shall be construed to otherwise effect relevant proceedings involving the �ranting, denial , renewal , suspension, or revocation of a licen�e or the initiation, suspension, or termination of publie employment. Emphasis added. There has been no evidence submitted that Mr. Fan or MFL, Ine. has ever been convieted of a crime. In eaeh case that has dealt with this issue since the enaetment of thi� statute, the reports dealt with convictions or were not considered. See e.�. , Vruno v. Schwarzwalder, 600 F.2d 124 (8th Cir. 1979) (guilty plea) ; Matter of Minn. Joint Underwriting Ass'n. , 408 N.W.2d 599 (Minn. App. 1987) �8uilty plea) ; Miller v. CitY of St. Paul , 363 N.W.2d 806 (Minn. App. 1985) (convietions) ; Godfather, Ine. v. City of Bloomington, 375 N.W.2d 68, 71 (Minn. App. 1985) ("extraneous matters were not litigated and would not be an appropriate basis for license denial ." ) ; Peterson v. Minneapolis City Council , 27� N.W.2d 918 (Minn. 1979) (convietions) . Furthermore, Officer Rogerts report formed the alleged faetual basis for the felony charges currently pending against Mr. Fan. As such, it elearly fits within Minn. Stat. §13.82(2) (e) as " . . .other legal basis for action; §13•82�2) ( 1 ) "The manner in whieh ageneies received information that led to the arrest. . ." ; and §13.82(4) (f) "A brief faetual reconstruction of events -17- �, � associated with the action[ ]" . Therefore, it is inappropriate to characterize this report as simply "inactive investigative data.�� Thus, the admission of Plaintiff' s Exhibit 5 over Respondent' s objeetion is elearly erroneous and the City Couneil should have ignored Officer Roger' s report. The only legally admissible evidenee concerning the content of T.D.M. ' s dance was Ms. Osterman� s testimony: Q. Have you seen the police report that was entered into evidence as to what [T.D.M. ] did on the dance floor? A. Yes, I did. Q. In the audition that you had at the time that she had auditioned, and at the time that Mr. Fan, apparantly, was at this, did she do any of those things described in that police report? A. No. She didn' t that night either, because I was there. I never had trouble with her on that. Tr. at 260. Therefore, there is no admissible evidenee to sustain the Finding concerning the content of T.D.M. ' s dance on the night of her arrest on a warrant. 3. If the City Couneil determines that Plaintiff� s Exhibit 5 is admissible despite Minn. Stat. §36�4 et s�ce . , then the report should be held inadmissible under Rule 803(6) and (8) of the Minnesota Rules of Evidence and Rule 1400.7300 of the Rules of the Office of the Hearing Examiner, or it should be afforded very little weight. Officer Rogers admitted (Tr. at -18- 13�-135) that Plaintiff' s Exhibit 5 was not made contemporaneously with Ms. Monn' s arrest outside of the licensed premises, but that it was made fourteen days after her arrest. The manner and cireumstances under whieh Officer Roger� s report was procurred indicates a lack of trustworthiness, as follows: a. According to Officer Roger' s testimony, his first report did not deseribe the dancing. Tr. at 1�1 . As a police officer with over five years of experienee, it is reasonable to infer that if Officer Rogers had observed a person dancing, that he had reason to believe was a minor, and the content of that daneing consisted of an alleged ��sexual performance," he would have included it in his initial report. It was only after another officer had a conversation with the City Attorney, that the other officer advised Officer Rogers that they [the City Attorney] needed and wanted a supplemental report. This strongly suggests that the purpose of the second report was not to "record matters observed pursuant to duty imposed by law" but to form a "factual" basis for other purposes. Thus, this Tribunal should eonclude that the subsequent report, Plaintiff' s Exhibit 5, "lacks trustworthiness" and is not "the type of evidence on whieh reasonable, prudent persons are aecustomed to rely in the conduct of their serious affairs." b. Officer Rogers testified that he was �0 to 50 feet away from the danee studio and was on the opposite side of the bar at the time of T.D.M. dance. Tr. at 130, 135. Even if his view was unobstructed by bartenders or patrons sitting at -19- . ��'�� the bar, sitting at the rail or moving between him and the glass panels (which lacks credibility) , it is unlikely that anyone eould see so far with sueh clarity. Therefore, Officer Rogerts report should be held to be inadmissible or be given very little wei�ht. G. OBJECTION TO PROPOSED COUNCIL AND FINDINGS A D N LUSIO TO ES. N . AND RES. 2, N0. 10: The ALJ found that Mr. Melendez was a "neighborhood vigilante.�� ALJ Finding 17 (emphasis added) . The Members of the Council were not present at the hearing. For all of the reasons state su ra at 2-3, 6-7, the Council lacks any evidence to substantiate the ehange to the ALJ' s eharacterization of Mr. Melendez. H. FURTHER OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS RES. 1 , N0. 18, RES. 2, N0. 10: . . .but he made 20-25 arrests outside the bar for soliciation inside, . . . . This finding is not supported by the evidenee. Officer Lutehen testified that he had never made an arrest for prostitution-related activities inside of the licensed premises (Tr. at 149, 158) because "I didn' t have sufficient evidence to make an arrest within the bar[ ]" (Tr. at 159) . Indeed, there is no evidence that the alleged solicitation actually took place in the Belmont. It could have taken place in the street or on the sidewalk. Tr. at 150. There is no testimony by Officer -20- Lutehen that he actually observed the solicitation within the Belmont and then arrested the parties while they were performing the "trick" or that the parties admitted that the solicitation took place within the Belmont. I . OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 N0. 19 AND RES. 2, N0. 11 : . . .While the Belmont is not the sole and exclusive souree of prostitution in the area, it is used to prostitutes in sufficient numbers for meeting with �ohns, for shelter from the elements, for avoiding police officers, for meeting with pimps, and in conjunetion with the parking lot using the licensed activities as a base of operations. . . . These findings and conelusions contradict the findings and eonelusions made by the ALJ and are not supported by the evidence, as follows: The Belmont is not the souree of prostitution in the area. ALJ Finding 18. See also Respondent' s Exhibits B and E. There has been no testimony to support a Finding or Conclusion that the Belmont is a source of prostitution in the area. Indeed, the evidence is that the prostitution problem was not caused by the Belmont Club but by such things as low housing standards, low income levels, laek of education, absentee landlords and urban development in the community surrounding the Belmont Club. Melendez, Tr. at 60-61 . Accord Melendez, Tr. at 48. (Q. "So is your opinion, then--that the Belmont Club was not the cause of prostitution on Dale and University, is it?" A. "I would say -21- that in all fairness and honesty, I would say no." ) ; Eisenmenger, Tr. at 117-118; Respondentts Exhibit E at 19. 2. The City has not satisfied its burden of establishing that prostitution or prostitution-related aetivities have any connection with the Belmont Club. Indeed, the evidenee is to the contrary. Melendez: Q. "Does the prostitution, or do the prostitutes have a conneetion with the Belmont Club itself?" A. "That, I really can' t say that they do, sir." Tr. at 42. Q. "Did you ever see them come out with customers?" A. "No, sir, I haven' t." Tr. at 4�+. Indeed, even though Officer Lutehen goes into the bar three times a week, he has admitted that he has never made an arrest in the Belmont Club because "I didn' t have sufficient evidence to make an arrest within the bar." Tr. at 159. The following are additional reasons why the City has failed to establish this causal connection. a. Instead of working with MFL, Ine. and Mr. Fan to address a community problem, the community organizations have "targeted" the Belmont Club--not for any alleged violation of the liquor laws or ordinanees, but because nude daneing can be viewed from the licensed premises. Melendez, Tr. at 42, 47-48, 58-59; -22- L . �U ��V'`...� Eisenmenger, Tr. at 119. Any adverse testimony by the witnesses from the community concerning any alleged connections between the Belmont Club and prostitution or prostitution-related activities laeks credibility because they have ��singled out" the Belmont Club. Reliance thereon by this council to revoke or deny renewal of the licenses is arbitrary and capricious. Tamarac Inn, Inc. ___ v. City of Lon Lake, 310 N.W.2d 474 (Minn. 1981 ) . In addition, neither Mr. Melendez nor Mr. Eisenmenger has been inside of the Belmont Club in years. Tr. at 63-6�4, 123. b. The evidence clearly establishes that the members of the community moved into the area knowing that The Belmont Club sold liquor, that nude dancing could be viewed from the licensed premises , and that they were moving into an area known for prostitution. Melendez, Tr. at 36; Eisenmenger, Tr. at 108, 115. Respondent is entitled to Finding to that effect. c. The evidence establishes that there are more prostitutes and prostitution-related activities and arrests in the public streets and sidewalks than in the licensed premises or the parking lot. For example: Melendez, Tr, at 40, 49 , 52-53; Meyer, Tr. at 78; Eisenmenger, Tr. at 116-117, 120; Lutehen, Tr. at 149-150, 160-163, 168. -23- d. The Belmont Club is located in a high erime area. The patrol team area 88 (6-block area west of Dale) and in area 89 (6-block area east of Dale) , where The Belmont is located, are both high crime areas. Respondent' s Exhibit B; Lutehen, Tr. at 153-�56. In 1986, seventy percent (70�) of all prostitution arrests in the City were made in the zone bounded by University, Charles, Victoria and Western Avenues. Lutchen, Tr. at 156-157; Respondent' s Exhibit E at p. 20-21 . e. The parking lot is used by patrons of the Fliek and Faust. For example, Melendez, Tr. at 56; Eisenmenger, Tr. at 122. f. The licensee has taken steps to remove prostitutes and pimps from the licensed premises. Baker, Tr. at 213-21�. Weinhandl, Tr. at 224-226. g. There has been a significant improvement in the number of "known prostitutes" passing through the parking lot and a greater awareness of the boundaries of the parking lot sinee the security guard was hired. For example, Melendez, Tr. at 44-45; Eisenmenger, Tr. at 112-113, 122; Lutchen, Tr. at 163- 3. There has never been an arrest for prostitution or prostitution-related activities within the Belmont. For example, -24- `, � Ms. Weinhandl: Q. "To your knowledge, has there ever been an arrest for prostitution within your premises?" A. "Within our premises, no sir." Tr. at 22�4. Officer Lutchen: Q. "And at any time did you make an arrest within the Belmont bar for prostitution?" A. "No, I did not." Tr. at 158. Aecord Tr. at 161 . There is mere speculation that there has ever been an arrest in the Belmont parking lot: Officer Lutchen: Q. " . . . [H]ave you ever made an arrest in the parking lot?" A. "I believe one. I canft be positive on that. I believe there was one arrest made." Q. "Do you know when that would be?" A. "I'm not positive on that, no." Tr. at 161 . J. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 , N0. 20 AND RES. 2, N0. 12: . . .The Belmont eFforts at improvement are clearly related to and result from the initiation of enforcement aetion against the licenses of the Belmont Club. Respondent restates and incorporates herein by referenee the objeetions and arguments set forth supra at 2-3, 6-7. -25- . � In addition, the evidenee establishes that the Belmont management has attempted to cooperate with police and the neighborhood. Unfortunately, the police and the neighborhood have not cooperated with the Belmont and have failed to bring any alleged problems to the attention of the Belmont management. When any alleged problems were brought to management' s attention, they have promptly and successfully attempted to correct the alleged problems--despite the unwillingness of the police to assist in the matter. Tr. at 48, 55, 57-59, 75-76, 78-79, 119, 123, 137-138, 164-166, 173-175, 178, 213, 214, 22� , 226. K. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS TO RES. 1 , N0. 21 AND RES. 2, No. 13: The Belmont management has not always eooperated with the police as they come through the bar. The bar management allows the police to come inside and make frequent checks. Bouncers and bartenders have infrequently pointed out prostitutes and pimps to officers and asked officers questions regarding whether a woman is a working prostitute, but more often have failed to recognize that the problem exists and have not responded to Officer Lutehen' s requests to view photos of prostitutes working the Belmont Club and parking lot. The bar manager once has advised the police, "I think he' s a pimp; I think she' s working." Officer Lutchen has advised the bar management that they do have the right to evict known prostitutes, especially if they are working the bar, but he has never been asked to evict a prostitute. In contrast, he has been called approximately twenty times to evict prostitutes from Lendway' s Bar near the Belmont and Lendway' s Bar has sought vigorously to deal with the problem. The Liquor License Inspector has received complaints about prostitution in relation to the Belmont Club, but has not received similar complaints about Lendway' s. -26- ', . ��"/ `�'o�S� These findings and conclusions are not supported by the evidence and are elearly erroneous under the law, as follows: 1 . The ALJ specifically found that "The Belmont management has always cooperated with the police as they come through the bar." ALJ Finding 20. The ALJ's Finding is supported by the evidence. E.�. , Tr. at 78, 13$-139, 189, 21�1. This Couneil has no basis for reversing the ALJ's finding. Respondent restates and ineorporates the argument set forth su ra at 2-3, 6-7 as if fully set forth herein. 2. There is no testimony to support the addition of the words '�infrequently" and "once�� into the ALJ Finding 20. The evidenee is to the contrary, as follows: Q. Was there an oecasion on whieh a manager or bartender named Cheri told you some- thing about particular people in the bar, whether they were prostitutes or not? A. Yes, she has advised me on several oecasions that she either said, '�Well , I think he� s a pimp'� or ��I think she� s working." And I 've either verified it or took the information down for future reference. Lutchen, Tr. at 1�48. Emphasis added. Accord, Tr. at 13$-139, 146-1�47. Despite this information from management, Officer Lutchen never made an arrest. Tr. at 149, 158-159. This Council has no basis upon whieh to base this miseharaeterization of the testimony and the ALJ' s Finding. Respondent reasserts and incorporates the arguments set forth su ra at 2-3, 6-7 as if fully set forth herein. 3• The testimony of Officer Lutchen concerning the alleged response by Belmont employees to alleged photographs was -27- directly controverted by those same employees. Tr. at 187-188, 212, 223, 22�. Officer Lutehen never showed those alleged photographs to Mr. Fan and he admitted that he never �ave his "advice" to Mr. Fan. Tr. at 160. No sueh photo�raphs were introduced at the hearing. When Mr. Fan requested assistance from the police department in the form of photographs, identification of "known prostitutes" , and seminars, no such poliee assistance was ever given. ALJ Finding 19• Tr. at 164-166, 173-175, 178. In light of this contradictory evidence, the ALJ clearly did not find Officer Lutchen' s testimony to be credible and afforded it very little weight. Because the Members of this Couneil were not at the hearing and did not have the opportunity to view Officer Lutchen' s testimony, this Council has no basis to judge the credibility of this witness or assign weight to this testimony. There is, therefore, no basis for this Council to reverse and amend this Finding. �. The additional finding coneerning Officer Lutchen' s advice is misleading. Officer Lutehen testified that: . . .Cheri [the bar manager] has asked me what the legalities are. I advised her that the prostitutes, they have a right to evict them out of the bar. Especially if they have any evidence that they may be working the bar. Firstly, there was no evidence presented that any prostitute was "working the bar." Indeed, Officer Lutchen admitted he never made an arrest inside the bar because "I didn� t have sufficient evidenee to make an arrest in the bar." Tr. at 159• As the ALJ stated in her memorandum at 11 : -28- 4 � In this case, Offieer Meyer observed only one prostitute in the bar, apparently doing nothing illegal . Officer Lutchen was the only witness who testified that the bar premises are used by prostitutes for picking up customers, but he did not make any arrests in the bar, presumably because no activity was observed inside which would provide probable cause for an arrest. If the activities of the prostitutes did not provide probable cause for an arrest and were inactive inside the bar, it would be inappropriate to penalize the bar management for inaction. Secondly, unless there is direet evidence that allegedly "known prostitutes" are, in fact, "working the bar�� , OfPicer Lutchen' s advice is simply contrary to the law as stated by the Minnesota Supreme Court in Sabes v. City of Minneapolis, 120 N.W.2d 871 , 878 (Minn. 1963) : The mere presence of persons of immoral eharacter has been held not to violate a statute prohibiting the use of a bar as a place "to whieh people resort for purposes which are injurious to the public morals," there being nothing unlawful about premitting such persons to patronize bars and restaurants in the absence of proof that they committed violations on the premises. . . . Indeed, the St. Paul Police Department appears to be providing conflieting legal advee on the issue. Tr. at 51 . Thirdly, the revocation and refusal to renew Respondent' s licenses on the basis of a sin�le speculative prostitution arrest in the parking lot is contrary to the law as set forth in Sabes. Nor is a single act of solicitation enough to justify a license revocation under a statute whieh prohibits the licensee from permittin� the premises to become disorderly. Sabes v. City of Minneapolis, 120 N.W.2d at 878. Aecord, ALJ Conelusion 12, ALJ Memorandum at 10-11 . -29- Fourthly, the revocation and nonrenewal of Respondent' s licenses on the basis of a single speculative arrest for prostitution in the parking lot is a violation of Respondent' s fundamental right to equal protection under the Fourteenth Amendment to the United States Constitution and Article 1 , §2 of the Minnesota Constitution because other businesses , such as Skippers and Lendways (Tr. at 162) have not had sueh adverse action taken against them for the same or worse offense. See Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 869 ( 1979) ; � v. Township of Grow, 296 Minn. 1 , 206, N.W.2d 10, 23 ( 1973) . Such disparate treatment is also evidenee of the arbitrary and capricious nature of the Couneil' s proposed adverse action. Tamarae Inn, Ine. v. The City of Long Lake, 310 N.W.2d 474, �78 (Minn. 1981 ) . L. OBJECTIONS TO PROPOSED COUNCIL FINDINGS AND CONCLUSIONS MADE BY THE ALJ Resolution 2 proposes the omission of the ALJ' s Findings No. 2, 3, 4, 5, 6, 7, 9 and 11 . Resolutions 1 and 2 propose to omit the ALJ' s Conclusions No. 1 , 2, 3, 4, 5, 6, 7, 9, 10, 11 , 12 and 13• These omissions are without factual basis in the record and are clearly erroneous. II . RESPONDENT'S OBJECTIONS TO THE CITY COUNCIL'S PROPOSED CONCLUSIONS A. OBJECTIONS TO PROPOSED COUNCIL CONCLUSION N0. 22: / The licensee employed minor T.D.M. who lied about her age in order to obtain employment. The City has sustained its burden of proving �� The Conclusions are identical in Resolutions 1 and 2. -30- that T.D.M. was employed for the purpose of engaging in a sexual performanee, and has sustained its burden of proving that the licensee permitted a minor to engage in a sexual performanee. This conelusion is contrary to the evidence, is contrary to the Conclusions made by the ALJ, and is clearly erroneous under the law, as follows: 1 . Dancing Angels, Inc.--not MFL, Inc. , the licensee, employed T.D.M. The ALJ so held in Conclusion 8. The ALJ' s Conclusion is elearly supported by the evidenee. For example, she was hired by the manager for Daneing Angels, Ine. (supra at 9-11 ; she signed a contract with Dancing Angels, Ine. (Respondentts Exhibit A) ; she was paid by Daneing Angels, Inc. (Plaintiff' s Exhibit 1 ) ; MFL, Ine. is the licensee (Plaintiff Exhibit 6; ALJ Finding 1 ; ALJ Conelusion 8) ; Dancing Angels, Inc. is a separate legal entity (Plaintiff Exhibit 7; ALJ Memo at 8) ; and the only time T.D.M. talked to Mr. Fan was when Mr. Fan told T.D.M. to get out of the bar because she was not 21 years of age (Tr. at 92, 99-100; ALJ Finding 13) . 2. The City has not sustained its burden of proving that T.D.M. was employed for the purpose of engaging in a sexual performance or that Mr. Fan permitted T.D.M. to engage in a sexual performanee. The proposed Couneil Conelusions are clearly not supported by either the evidence or the law, as follows: a. The City has failed to sustain its burden that the licensee employeed T.D.M.--Daneing Angels, Ine. , not the licensee, employed T.D.M. E.g. , su�ra at 9-11 ; ALJ Finding 1 , Conclusion 8 and Memo at 8. -31- �, r b. The City has failed to sustain its burden of proof that the licensee intended to employ a minor for the purpose of engaging in a "sexual performance" or intended to ep rmit T.D.M. to en a e in a "sexual performanee" .--The City argues that it need not prove intent to employ a minor because of Minn. Stat. §617.2b6(5) • However, because of its "tendaney to inhibit constitutionally protected expression, . . ." the elements of Minnesota Statute §617.246 must include scienter in order to survive a constitutional challenge under the First and Fourteenth Amendments to the Constitution of the United States and Artiele 1 , §3 of the Constitution of the State of Minnesota. Smith v. California, 361 U.S. 1�47, 155 ( 1959) . Aeeord, New York v. Ferber, 458 U.S. 7�47, 765 ( 1982) ; Ginsberg v. New York, 390 U.S. 629, 643-4� ( 1968) . In addition, the statute itself requires that the licensee "knows or has reason to know that the conduct intended is a sexual performance" , as an element of the offense. Minn. Stat. §617.2�46(2) . Thus, the City must satisfy its burden of establishing that the licensee was in some manner aware ( 1 ) of the character and content of the performance and (2) the age of T.D.M. The City failed to present any evidenee and there is no evidence that would establish that either the licensee or Mr. Fan knew or had reason to know that T.D.M. was a minor. Indeed, the evidence is to the contrary. T.D.M. lied about her age to ge� the job and never told anyone at the Belmont her real age. T.D.M. , Tr. at 90 , 93, 100; ALJ Finding 8, ALJ Conclusion 8, ALJ Memo 7-9. Not only did Ms. Monn appear to be over 18 years -32- of age at the hearing, she testified that when she auditioned, she wore a lot of eye make-up and her hair was different because it stood up more. T.D.M. , Tr. , at 100; ALJ Finding 11 . T.D.M. is well developed and looked over 18 years old. Osterman, Tr. at 257; ALJ Finding 11 . Nancy Osterman requested identification and was provided with a birth certificate. Osterman, Tr. at 244-245. T.D.M. obtained another false identification. Plaintiff' s Exhibit 2; Tr. at 9� , 101 ; ALJ Finding 12. Therefore, the City has failed to sustain its burden of proof on this element. The City has also failed to present any evidenee and has, thus, failed in its burden of establishing, that T.D.M. was hired for the purpose and intention of engaging in a "sexual performance." ALJ Conclusion 8. To the contrary, the evidence is conelusive that that was not the intention. Respondent' s Exhibit A specifically states at p. 2 that the "[d]aneer represents that she has read and understands the ordinances governing exotic dancingL �" and that "[she) agrees to abide by sueh ordinanee and all laws. " Accord, Respondent' s Exhibit A at �7.a. ; ALJ Finding g. T.D.M. did not dance in the manner described in PlaintifF' s Exhibit 5 at her audition. Osterman Tr. at 260. The dancers are verbally instrueted about prohibited aets, the appropriate ordinanee was read to them and discussed at monthly meetings (Respondent' s Exhibit C) and a sign is posted in the dressing area contained in �90 North Dale (Respondent' s Exhibit D) . Osterman, Tr. at 236-237; ALJ Finding 10. The City has failed in its burden of establishing that either the licensee or Mr. Fan intended to permit a "sexual performance." The City has presented no evidenee and there is no -33- �� , �� evidenee in the record to establish: ( 1 ) that Mr. Fan was present in the bar on the night T.D.M. was arrested; (2) that T.D.M. , or any other dancer, had ever danced in an inappropriate manner in the past; (3) that any employee of the licensee had seen the alleged "sexual performance" ; and (4) that Mr. Fan had ever seen T.D.M. dance after the audition. Indeed, the evidence is to the contrary. Dancing Angels, Inc. and Mr. Fan took extensive precautionary measures to prevent any performance that could violate the statutes and ordinances . Supra at 33. It is reasonable that Dancing Angels, Inc. , MFL, Inc. and Mr. Fan expeeted that the daneers would follow the rules and abide by their contraets. T.D.M. had never daneed in the manner deseribed in Plaintiff' s Exhibit 5 on any other oceasion and did not do so on the ni�ht in question. Osterman, Tr. at 260. Mr. Fan was not present in the Belmont Club on the night T.D.M. was arrested. Osterman, Tr. at 257• c. The Council did not inelude this essential element as a basis for it' s action.--During the August 11 , 1988 hearing, Mr. Wilson expressed three elements upon whieh to base adverse action. Those elements did not inelude the statutorily and constitutionally required element of intent. Furthermore, neither this proposed conclusion nor City Couneil' s proposed Conclusion 24 contain the required intent. Indeed, the City failed to present any evidence of intent. Therefore, an essential element is missing and factually, statutorily, and constitutionally this Conclusion must fail. If it does not, the Conclusion is clearly erroneous and arbitrary and capricious. -3�- �, r 3. The City failed to establish, through admissible evidence, that T.D.M. actually engaged in a "sexual performance" on the night in question. Respondent restates and ineorporates the argument set forth supra at 16-18 as if fully set forth herein. 4. The City Council lacks subject matter jurisdietion to determine whether T.D.M. ' s performance was outside of the protections afforded by the First and Fourteenth Amendments to the Constitution of the United States and Article 1 , §3 of the Constitution of the State of Minnesota. As discussed infra at b7, nude dancing is a form of expression that is protected by the federal and state constitutions. Whether the alleged "sexual performance" is outside of the realm of protected expression can only be determined by a Court, in an adversarial proceedings--not in an administrative proceeding. E.gz. , Southeastern Promotions, Ltd. , v. Conrad, �420 U.S. 5�6, 550-60 ( 1975) ; Pestrak v. Ohio Elections Com'n, 670 F.Supp. 1368, 1377 (S.D. Ohio 1987) ; Alexander v. City of St. Paul , 227 N.W.2d 370, 375-76 ( 1975) , citing, Freedman v. Maryland, 380 U.S. 51 , 58 ( 1965) �"The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. ) . Indeed, for the City Council to revoke or refuse to renew the licenses on the basis of the -35- '� � allegations concerning T.D.M. without a prior judicial proceeding, is, in itself, a form of prior restraint in violation of due process and the freedom of expression. See Pestrak v. Ohio Election Com'n, 670 F.Supp. 1368 (S.D. Ohio 1987) . B. OBJECTIONS TO THE COUNCIL'S PROPOSED CONCLUSION N0. 23: The Council coneludes that the findings and evidenee in the record relating to prostitution are sufficient grounds for disciplinary action relating to the licenses of the Belmont Club, in that they refleet the existenee of a nuisanee for whieh the said Belmont Club is aecountable, and constitute a serious danger to the public health, safety and welfare. Sueh findings are grounds for adverse action under Seetion 409.08(6) of the Saint Paul Legislative Code, prohibiting licensees from permitting licensed premises to be used as a resort for prostitutes; Section 310.06(7) of the Code allowing revocation when the actions of the licensee in the licensed activity create danger to public health, safety or welfare; and under Section 231 .01 of the Code, as well as Minnesota Statutes 1986, Seetion 609.7�, relating to nuisances. These proposed conclusions are not supported by the evidenee and are contrary to law as follows: 1 . The City has failed to satisfy its burden of establishing that the permitted the licensed premises to be used as a resort for prostitutes under Section �409•08(6) . ALJ Conclusion 12, ALJ Memorandum at 10. The ALJ' s conclusion is supported by the facts in the record and by the law as set forth in Sabes. Supra at 20-30. -36- , r �,�.�,�,�� 2. The City has failed in its burden of establishing a violation of either Seetion 231 .01 or Minnesota Statutes §609.7�• Section 231 .01 provides, in relevant part: 5/ Whoever by his act or failure to perform a legal duty intentionally does any of the following maintains a public nuisance and is guilty of a misdemeanor: ( 1 ) Maintains or permits a condition which unreasonably annoys, injures or endangers the safety, health, morals, comfort or repose of any considerable number of inembers of the publie; a. The prostitution activity in the Frogtown area is not caused by the Belmont Club. Supra at 21-22. Nor does the licensee have any "legal duty" to control activities that take place off from the licensed premises such as on the sidewalks, in the street, in the public alley, on the corners, or on MTC benches, This is the duty of the St. Paul Polic Department. Mr. Fan has admitted that he is responsible for his parking lot. However, the homeowners in the Frogtown area are also responsible for thier property. Would this Couneil consider eharging misdemeanor violations or seeking an injunetion against homeowners for failure to keep prostitutes off their lawns? We submit that this Council would not and should not do so. This is a neighborhood problem. Supra at 20-30. The licensee is as mueh a victim of this problem as the surrounding neighbors. The efforts of law enforcement personnel in the neighborhood have been effective and should be continous in the future. Melendez, 5� Minn. Stat. §609.74 is substantially the same. -37- , r Tr. at 49; Eisenmenger, Tr. at 118. Minnesota Statutes §609.02(3) states that "intentionally" "means that the aetor either has a purpose to do a thing or cause a result specified or believes that the act performed by the actor, if suceessful, will cause that result. . . ." "Condition" is defined as "attendent circumstances; existing state of affairs, . . .a mode or state of being." Websters International Dictionary (2d ed. unabridged) . Blaek� s Law Dictionary defines "maintains" as "carries on" . . . "commenced�� and "permits" as "allows.'� The City has failed to satisfy its burden of proof under this ordinance and statute. There is no evidence that the licensee purposefully allowed, carried on, or commenced prostitution or prostitution-related activities. The evidence is to the contrary. Supra at 20-30. Indeed, the testimony indicates that the licensee hired a part-time parking-lot attendant; had strong policies concerning prostitution; added a full-time parking-lot attendant; and has requested, but not received, assistance from the police. Furthermore, even Officer Lutehen' s nightly (while on duty) patrol of the licensed premises and with the frequent patrol of the parking lot, only one speculative arrest in the parking lot was made. One possible arrest doe not make an "existing state of affairs." As the Advisory Notes to Minn. Stat. §609.7�4 indieates concerning condition: The purpose is to emphasize the characteristic feature of a nuisanee; namely, that it is something which is more than a single act. . . -38- �� r When compared to the arrests in the surrounding area (Tr. at 162) , the licensee has been able to deal with the neighborhood problem as well as or better than its neighbors. See e.�. Tr. at 45, 112-113, 121-122. The neighborhood prostitution problem may be unreasonable, but the licensee' s attempts to correct the problem, as it relates to the licensed premises and the parking lot, are not. Furthermore, the neighbors all moved into the neighborhood with notice of the existing neighborhood problem. Tr. at 36, 108, 115. The City has presented no evidence upon whieh it can rely to establish ��that the premises themselves [are] inherently unsuitable as the location of a tavern. . ." Wajda v. City of Minneapolis, 246 N.W.2d �455, �59 (Minn. 1976) . Indeed, the evidence is to the contrary. 1 . Mr. Carchedi testified that the Belmont Club is proper within the zoning ordinances for the business itts in. Tr. p. 177 at 1 . 8-10. 2. Mr. Melendez testified, in substance, that if the Belmont Club did not present nude daneing to be viewed by its customers, the community would work with, as opposed to against, the Belmont Club. Tr. at p. 58-59. Finally, as diseussed, su ra at 30, if the Council takes adverse aetion a$ainst the licensee on the basis of this Proposed Conelusion, the Council will violate Respondent' s right to equal protection. C. OBJECTIONS TO THE COUNCIL'S PROPOSED CONCLUSION N0. 2�: The Council concludes that the findings and evidence in the record relating to hiring -39- `� r a thirteen-year old girl to engage in sexual performanees are sufficient �rounds for disciplinary action relating to the licenses of the Belmont Club, in that they show that the licensee has indicated by such misconduct his lack of the requisite fitness and good moral eharacter to engage in the licensed activity as provided by Section 310.06(9) of the Code. Sueh findings also show a violation of Minnesota Statutes 1986, Section 617.2�6, and of necessity constitutes grounds for adverse aetion under Section 310.06(6) of the Code, concerning violations of statutes whieh reasonably relate to the licensed activity. These Conclusions are not supported by the record, are based upon clearly erroneous applications of the law, and violate the Respondent� s fundamental constitutional rights of due process (both procedural and substantive) and freedom of expression (both on its faee and as applied) . 1 . The City Council lacks subject matter jurisdie- tion.--The Couneil is without jurisdietion to determine whether the performance was outside of the protection of the First and Fourteenth Amendments to the United States Constitution and Article 1 , §3 of the Minnesota Constitution. In addition, by attempting to take adverse action on the basis that the licensee is not of "good moral eharacter or repute" because of this alleged "sexual performanee" , the City Couneil lacks subject matter jurisdiction over the constitutionality of the underlying ordinance. See e.�. , Montana Chapter of Ass'n of Civilian Technicians, Inc. v. Young, 51� F.2d 1165 (9th Cir. 1975) ; MeKee v. County of Ramsey, 245 N.W.2d �60 (Minn. 1976) ; Dation v. Ford Motor Co. , 31� Mich. 152, 22 N.W.2d 252 ( 1946) ; ALJ Memorandum at -40- . r p. 3. This result is demanded by the constitutional doetrine of separation of powers. See e.�. Roekne v. Olson, 191 Minn. 310, 25� N.W. 5 ( 193�) . 2. The proposed revocation and non-renewal of the licenses held � MFL, Ine. is an unconstitutional violation of Respondent' s fundamental rights to due process and freedom of expression.--The City of St. Paul proposes this adverse action on the basis of Section 310.06(b) (9) of the Code, whieh provides: The licensee or applicant has shown by past misconduet, unfair acts or dealings, or by the frequent abuse of alcohol or other drugs, that such licensee or applicant is not a person of the good moral eharacter or fitness required to engage in a licensed activity, business or profession. Every person has a liberty interest in his or her good name, honor, integrity and honesty that is a liberty interest to be proteeted by the prineiples of due process under both the Fifth and Fourteenth Amendments to the United States Constitution and Articles 1 , §7 of the Minnesota Constitution. See e.�. , Board of Regents v. Roth, �08 U.S. 56�, 573 t1972) and the cases cited therein. Furthermore, a person who invests substantial amounts of money in a business subjeet to an aetive on-sale liquor license "is entitled to a reasonable expectation of the continuing receipt of the benefit conferred by a license." Tamarac Inn, Inc. v. City of Long Lake, 310 N.W.2d 474, 477 (Minn. 1981 ) . This "reasonable expectation of the continuing receipt of the benefit conferred by the license" provides a sufficient property interest to require the application of the principles of due process contained in the Fifth and Fourteenth -41- . � Amendments to the United States Constitution and Artiele 1 , §7 of the Minnesota Constitution. See e.�. , Perry v. Sindermann, �08 U.S. 593 � 1972) • Aecord, Goldberg v. Kelly, 397 U.S. 254 ( 1970) . The denial , revocation or nonrenewal of an on-sale liquor license on the basis of a person' s "moral eharacter or repute" is a violation of the principles of due process under both the federal and state constitutions because "moral character and repute�� is void for vagueness. A statute or ordinance must �ive prospective notiuce of wht is prohibited. It is not sufficient for legislators and judges to say, after the fact, "I know what morality and fintess is." An ordinanee is void for vagueness if it: fails to give a person of ordinary intelli�ence fair notice that his contemplated conduet is forbidden by statute. Papachristore v. Jaeksonville, �05 U.S. 156, 162 ( 1972) • Aceord, Grayned v. Rockford, 408 U.S. 10�, 108 ( 1972) ; D.C. v. City of St. Louis, 795 F.2d 652 653 (8th Cir. 1986) . Moreover, it requires legislatures to set reasonably clear guidelines for law enforeement officials and triers of faet in order to prevent "arbitrary and diseriminatory enforcement." Smith v. Goguen, 415 U.S. 566, 572-73 ( 197�) . Accord, D.C. v. City of St. Louis, 795 F.2d at 653• Standardless ordinances or statutes permit selective law enforcement in violation of due process. Smith, 415 U.S. at 575-76. The ordinance does not define "good moral charaeter or fitness" . The ordinanee does not set any standards or guidelines to determine what "good moral character or fitness" is. -4 2- , }- Minnesota Statutes 1986, Seetion 617.246, and of necessity constitutes grounds for adverse aetion under Section 310.06(6) of the Code, coneerning violations of statutes which reasonably relate to the licensed activity. These Conclusions are not supported by the record, are based upon clearly erroneous applications of the law, and violate the Respondent� s fundamental constitutional rights of due process (both procedural and substantive) and freedom of expression (both on its face and as applied) . 1 . The City Council lacks subject matter jurisdie- tion.--As discussed su ra at 40, the Council is without jurisdiction to determine whether the performance was outside of the protection of the First and Fourteenth Amendments to the United States Constitution and Article 1 , §3 of the Minnesota Constitution. In addition, by attempting to take adverse action on the basis that the licensee is not of "good moral eharacter or repute" because of this alleged "sexual performanee" , the City Council lacks subject matter jurisdiction over the constitutionality of the underlying ordinance. See e.�. , Montana Chapter of Ass'n of Civilian Technicians, Inc. v. Young, 51�4 F.2d 1165 (9th Cir. 1975) ; MeKee v. County of Ramsey, 245 N.W.2d �60 (Minn. 1976) ; Dation v. Ford Motor Co. , 31� Mieh. 152, 22 N.W.2d 252 ( 19�t6) ; ALJ Memorandum at p. 3. This result is demanded by the constitutional doctrine of separation of powers. See e.�. Rockne v. Olson, 191 Minn. 310, 25� N.W.2d 5 ( 193�) • 2. The proposed revocation and non-renewal of the licenses held � MFL, Inc. is an unconstitutional violation of -43- ', r Respondent' s fundamental rights to due process and freedom of expression.--The City of St. Paul proposes this adverse aetion on the basis of Section 310.06(b) (9) of the Code, which provides: The licensee or applicant has shown by past miseonduet, unfair aets or dealings or by the frequent abuse of alcohol or other drugs, that sueh licensee or applicant is not a person of the good moral character or fitness required to engage in a licensed activity, business or profession. Every person has a liberty interest in his or her good name, honor, integrity and honesty that is a liberty interest to be protected by the principles of due process under both the Fifth and Fourteenth Amendments to the United States Constitution and Articles 1 , §7 of the Minnesota Constitution. See e.�. , Board of Regents v. Roth, �408 U.S. 56�4, 573 ( 1972) and the cases cited therein. Furthermore, a person who invests substantial amounts of money in a business subject to an aetive on-sale liquor license "is entitled to a reasonable expectation of the continuing receipt of the benefit conferred by a license." Tamarac Inn, Ine. v. City of Long Lake, 310 N.W.2d 474, 477 (Minn. 1981 ) . This "reasonable expectation of the continuing receipt of the benefit conferred by the license" provides a sufficient property interest to require the applieation of the prineiples of due process contained in the Fifth and Fourteenth Amendments to the United States Constitution and Artiele 1 ,§7 of the Minnesota Constitution. See e. . PerrY v. Sindermann, 408 U.S. 593 � 1972) . Aceord, Goldberg v. Kelly, 397 U.S. 254 ( 1970) . -��- . r The denial , revocation or nonrenewal of an on-sale liquor license on the basis of a person� s "moral eharaeter or repute" is a violation of the principles of due process under both the federal and state constitutions because of "moral character and repute" is void for vagueness. A statute or ordinance must give prospective notice of what is prohibited. It is not sufficient for legislators and judges to say, after the fact, "I know what morality and fitness is." An ordinanee is void for vagueness if it: fails to give a person of ordinary intelligenee fair notice that his contemplated conduet is forbidden by statute. Pa�aehristore v. Jacksonville, 405 U.S. 156, 162 ( 1972) . Aecord, Grayned v. Rockford, 408 U.S. 104, 108 ( 1972) ; D.C. v. City of St. Louis, 795 F.2d 652, 653 (8th Cir. 1986) . Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of faet in order to prevent "arbitrary and diseriminatory enforcement." Smith v. Goguen, 415 U.S. 566, 572-73 ( 197�) • Accord, D.C. v. City of St. Louis, 795 F.2d at 653• Standardless ordinances or statutes permit selective law enforcement in violation of due - process. Smith, �15 U.S. at 575-76. The ordinance does not define "good moral character or fitness." The ordinanee does not set any standards or guidelines to determine what "good moral eharaeter or fitness" is. -45- , � �s� . ,�� Furthermore, dancing, including nude dancing, is protected expression under both the United States and the Minnesota Constitutions. Letter dated October 7, 1987 from an Assistant City Attorney to the City of St. Paul . Aceord, Schad v. Mount Ephraim, �52 U.S. 61 , 66 ( 1981 ) ; Doran v. Salem Inn, Inc. , �422 U.S. 922, 932 � 1975) ; Erznozik v. Jacksonville, �+22 U.S. 205 ( 1975) ; California v. LaRue, 409 U.S. 109, 118 ( 1972) ; Cabaret Enterprises, Inc. v. Alcoholie Beverages Control Comm�n, 393 Mass. 13, �468 N.E.2d 612, 613 ( 198�) ; Morris v. Municiple Court for San Jose- Milpitas, 32 Cal . 3d 553, 186 Cal . Rptr. �+94, 652 P.2d 51 , 57 ( 1982) ; Mickens v. Kodiak, 640 P.2d 818, 820 (Alaska 1982) ; Koppinger v. CitY of Fairmont, 311 Minn. 186, 2�48 N.W.2d 708, 712 n.3 ( 1976) ; Rochester v. Carlson, 294 Minn. 417, 202 N.W.2d 632, 633-3� ( �972) ; State v. Turner, 382 N.W.2d 252, 254 n. 1 (Minn. Ct. App. 1986) ; Sekne v. Portland, 81 Or. App. 630, 726 P.2d 959 , 962 ( 1986) ; Jacobson v. County of Goodhue, (MN Distriet Court, Court File No. 32596) . 6/ The lack of aseertainable standards in an ordinance coneerning denial , non-renewal or revocation of licenses based upon a person's "moral eharaeter or fitness" is particularly offensive when the fundamental freedom of expression is implicated. When a statute' s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts. Smith v. Goguen, 415 U.S. 566, 573 � 197�) • Aecord, NAACP v. Button, 371 U.S. 415, 432-33 ( 1963) . 6� A copy of the Findings of Fact, Conelusions of Law and Order for Judgment is attached hereto as Exhibit A. -46- The denial , non-renewal or revocation of licenses on the basis of the "moral eharaeter or fitness'� where freedom of expression is implicated, is unconstitutionally vague. As the United States Supreme Court explained in Shuttlesworth v. Birmingham, 39� U.S. 1�7, 150 ( 1969) : For in deciding whether or not to withhold a permit, the members of the Commission were to be guided only by their own ideas of "publie welfare, peace, safety, health, decency, good order, morals or convenience." This ordinance as was written, therefore, fell squarely within the many decisions of this Court over the last 30 years, holding that a law subjeeting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objeetive, and definite standards to guide the licensing authority, is uneonstitutional . Aecord, Staub v. Baxley, 355 U.S. 313, 322 ( 1958) (An ordinance held to be an unconstitutional prior restraint where based upon the character of the applicant, the nature of the organization and "effeets upon the general welfare of citizens of the City. . . . These criteria are without semblance of definitive standards or other controlling guides governing the aetion of the Mayor or Couneil in granting or withholding a permit." ) ; Bayside Enterprises, Inc. v. Carson, 450 F.Supp 696, 706 (M.D. Fla. 197$) ("Bayside I" ) (" . . .licenses shall be issued only to individuals of good moral character" held to be unconstitutional for lack of ascertainable standards. ) (containing numerous cites. ) Furthermore, it makes no difference whether actual proceedings -47- . � have been commeneed, although they have been in this instanee. "It is enough that a vague and broad statute lends itself to select enforcement against unpopular causes." NAACP v. Button, 371 U.S. �15, 435 ( 1963) . The City of St. Paul could not constitutionally deny, refuse to renew, or revoke a license directly licensing the expression on the basis of a prior conviction (let alone mere allegations) for an abuse of the licensee' s freedom of expression. Near v. Minnesota, 283 U.S. 697 ( 1931 ) ; Wendling v. City of Duluth, �95 F.Supp. 1380, 1385 (D. Minn. 1980) ("Had plaintiffs aetually violated the obscenity ordinanee in the past , the defendants could not use that as a ground to deny a license for an adult bookstore.��) ; Bayside Enterprises, Ine. v. Carson, �70 F.Supp. 1140, 1145 (M.D. Fla. 1979) ("Bayside II") ("There is no distinetion of any significance to be drawn between an injunetion that imposes a prior restraint on presumptively proteeted materials, . . . , and a licensing system that accomplishes that same result through the initial denial. . . or revocation of a license. . . . In each case, a party is denied the right to disseminate presumably protected materials in the future because he has disseminated unproteeted materials in the past. . . ." [numerous citations omitted. ] ) ; Alexander v. City of St. Paul , 227 N.W.2d 370, 373 ( 1975) �"Seetion 372.04[G] denies plaintiff the right to exercise a constitutionally proteeted right because of a past abuse of that right. . . . The City' s attempt to reseind plaintiFfis license is clearly a -48- � h prior restraint. . . .We therefore hold that §372.04[G] is uneonstitutional on its face. ") . The City of St. Paul cannot do indireetly what it cannot do directly. As the United States Supreme Court has held: [The government] may not deny a benefit to a person on a basis that ;, infringes on his constitutionally protected interests--especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or assoeiations, his exereise of those freedoms would in effeet be penalized and inhibited. This would allow the government to "produce a result which [ it] could not command directly." SPe_i_s,er v. Randall, 357 U.S. 513, 526. . . . Sueh interference with constitutional rights is impermissible. (Emphasis added. ) Perry v. Sindermann, 408 U.S. 593, 577 ( 1972) (collecting cases) . Aecord Hannegan v. Esquire, 327 U.S. 146, 151 ( 19�6) (In reversing the revocation of a second-elass postage permit to Esquire, Justice Douglas stated: " . . .the controversy is. . . whether the contents are 'good' or 'bad' . To uphold the order of revocation would, therefore, �rant the Postmaster General a power of censorship.") ; Cabaret Enter. v. Alcoholic Bev. Con. Com' n. , 393 Mass. 13, 468 N.E.2d 612 ( 198�) . Thus, the City cannot constitutionally deny, fail to renew or revoke a liquor license (based upon allegations of bad "moral character and repute" ) because of past convictions or mere allegations -�9- �, . of abuses of the exercise of the fundamental freedom of expression that allegedly oecurred in a constitutionally permissible area that is off from the premises that are licensed to sell liquor7/ The denial , non-renewal or revocation of a liquor license on that basis constitutes a penalty and punishment for past convietions or allegations of past abuses of the fundamental right to the free exercise of proteeted expression, without any ascertainable standards, and creates an irrebuttable presumption that such alleged past abuses will continue in the future. As such, the ordinance and any attempted denial , non-renewal or revocation of the licenses at issue in the present proceedings on that basis is an uneonstitutional prior restraint on proteeted expression and a violation of due process. If an enactment has the praetical effect of limiting free expression, it must be narrowly drawn. Schad v. Borough of Mt. E hrain, �452 U.S. �1 , 70, 71 , 75• . . 19 1 . . . .The ordinance leaves the City authorities with unlimited discretion to grant or refuse a permit and places those sub�eet to the ordinance in the position of having to contend with the City on a case-by-case basis, without the benefit of standards or guidelines. This the City may not do. Burlington v. New York Times, 532 A.2d 562 (Ver. 1987) . In addition, sueh a licensing seheme is unconstitutionally overbroad and will have a constitutionally impermissible chilling effect on the future exereise of proteeted expression in 7/ "A regulating authority may not adopt rules which preclude the exereise of free expression in an appropriate place, even on the ground another place is available." H-CHH Assoc. v. Citizens for Rep. Gov. , 193 Cal . App. 3d 1193, 23 Cal Rptr. 1 , 53 Cal . App. 1977) . Aceord e.g. , Schneider v. State, 308 U.S. 1�7 ( 1939) . -50- � . constitutionally permissible places. Erznoznik v. City of Jaeksonville, 422 U.S. 205, 217 ( 1975) . Keyishian v. Board of Regents, 385 U.S. 589 ( 1967) ; Shelton v. Tueker, 36� U.S. 479 ( 1960) ; H-CHH Assoc. v. Citizens for Rep. Gov. , 193 Cal . App. 3d 1193, 238 Cal Rptr. 841 , 852, 857 (Cal App. 1987) ; Matter of Welfare of S.L.J. , 263 N.W.2d �12, 417 ( 197$) ; Alexander v. City of St. Paul , 227 N.W. 3d 370, 375-76 ( 1975) citing Freedman v. Maryland, 380 U.S. 51 , 58 ( 1965) . See also, In re Grand Jury Subpoena, 829 F.2d 1291 , 1299 (4th Cir. 1987) ("First amendment rights need 'breathing space to survive, ' NAACP v. Button, 371 U.S. 415, 433 . . . [ 1963] , and courts are to proteet them ' not only against heavy-handed frontal attaek, but also from being stifled by more subtle governmental influence. ' Bates v. Little Rock, 361 U.S. 516, 522. . . ( 1960]") ; Wieman v. Updegraff, 3�4 U.S. 183, 195 ( 1952) (Frankfurter coneurring) (ehilling effect of loyalty oaths on freedom of association) ; Petrak v. Ohio Eleetions Com' n, 690 F.Supp. 1368, 1373 (S.D. Ohio 1987) �"Clear guidelines must exist regarding what is illegal so that persons will not be chilled in the exereise of their fundamental First Amendment rights for fear that they will be prosecuted." ) ; Koppinger v. City of Fairmont, 2�8 N.W,2d 708 (Minn. 1976) (ordinance regulating nude daneing in places other than bars is unconstitutionally overbroad) . In addition, the licensing system and this proposed nonrenewal and revocation constitutes a prior restraint upon proteeted expression. -51- : � ��-�- ��.� A prior restraint is defined as the prohibition of protected expression until it has the prior approval of a governmental official or as the complete prohibition of protected expression. E.�. , Southeastern Promotions, Ltd. v. Conrad, �420 U.S. 5�6, 553 ( 1975) ; Alexander v. City of St. Paul, 303 Minn. 201 , 227 N.W.2d 370, 373 ( 1975) . In order to sustain this prior restraint, the City must satisfy its burden of establishing: a. That the licensing system "fit[s] within one of the narrowly defined exeeptions to the prohibition against prior restraints[ . ]" Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 ( 1975) . b. That adult entertainment and the viewing thereof, "present a clear and present danger of substantive evil." Thornhill v. Alabama, 310 U.S. 88, 105 ( 1939) ; Alexander v. City of St. Paul , 303 Minn. 201 , 227 N.W.2d 370, 373 ( 1975) . e. That the licensing seheme has been accomplished with procedural safeguards that reduce the danger of suppressing constitutionally protected speeeh. Southeastern Promotions, Ltd. , 420 U.S. at 559. d. That the means utilized imposes the least amount of restrictions on proteeted expression. Schad v. Mount Ephraim, �52 U.S. 61 , 68-71 ( 1981 ) . The City simply has not and cannot, under any eircumstanees, satisfy this burden beeause: a. The City Council laeks subjeet matter jurisdic- tion to determine whether the alleged "sexual performance" is -52- . t outside of the realm of protected expresion. Supra at 35. Indeed, even proceeding with such a determination in these proceedings will and have constituted an additional prior restraint in violation of the Respondent' s rights to due process and freedom of expression. Id. b. Neither nude dancing nor the viewing thereof ereates a "clear and present danger of a substantive evil. " Even if this City Couneil finds nude dancing to be "immoral" , "distasteful" or "not the type of entertainment enjoyed by by majority of constituents" , the expression does not lose the protections afforded by the Federal and the State Constitutions. The United States Supreme Court has long and consistently held that such legislative judgments are insufficient to justify the infringement of a fundamental freedom. Sehad, �52 U.S. at 73 n. 15; Erznoznik, �22 U.S. at 211 ; Murdock v. Pennsylvania, 31g U.S. 105, 116 ( 19�3) • The United States Supreme Court has consistently and repeatedly stated that "[m]ere legislative preferenees" are insufficient justifications when the regulation seeks to prohibit protected expression, See e.�. , Pope v. Illinois U.S. , 95 L.Ed.2d �39, ��5 � �9$7) ; Schad 452 U.S. at 61-62; Niemolko v. Maryland, 340 U.S. 268, 272 ( 1950) ; Thornhill, 310 U.S. at 95-6; Sehneider, 308 U.S. at 161 . As Justice Douglas has explained: Plainly a community may not suppress, or a state tax, the dissemination of views because they are unpopular, annoying or distasteful . . . .That would be a complete repudiation of the philosophy of the Bill of Rights. -53- , r Murdoch, 319 U.S. at 116. Aecord, Pope v.Illinois, U.S. , 95 L.Ed.2d 439, 445 ( 1987) ("In Miller itself, the Court was careful to point out that ' [t]he First Amendment protects works which taken as a whole, have serious literary, artistic, political or scientific value, regardless or whether the govern- ment or a majority of the people approve of the ideas these works represent� [citation omitted] ." ) ; Wood v. Moore, 350 F.Supp. 29, 31 (W.D. N.Car 1972) �" . . .responsiveness to those citizens who may have sought its passage is of considerably less significanee under the law of this land than responsibility of the city government to the Constitution of the United States and the people whose personal liberties the Constitution protects." ) ; Matter of Welfare of S.L.J. , 263 N.W.2d �12, 416 (Minn. 1978) (The fact that the words used by appellant are vulgar, offensive, and insulting, and that their use is condemned by an overwhelming majority of citizens does not make them puni�hable under the criminal statute of this state unless they fall outside the protec- tion afforded to speech by the First Amendment.") Similarly, courts have consistently held that findings that would generally support an ordinance or statute under the exereise of the police power are insuffieient to justify prior restraints on protected expression. For example: 1 . Traffic control is an insufficient justification. Erznoznik v. City of Jacksonville, 422 U.S. 205, 21�-15 ( 1975) . 2. Community planning coneerns, parking problems and need for police protection are insufficient justifications. Sehad v. Mount Ephraim, 452 U.S. 61 , 72-74 ( 1981 ) . -54- , r ��F �� C.� 3. The promotion of public morals--even if the majority of a community believes that expression is immoral--is an insufficient justification. Sehad, 452 U.S. at 73 n. 15; Erznoznik, 422 U.S. at 211 ; Murdoek v. Pennsylvania, 319 U.S. 105, 116 ( 19�3) . �4. Health coneerns are insufficient. Morris v. Municipal Court For San Jose-Mitpitos, 32 Cal . 3d 553, 186 Ca1 .Rptr. 4g4, 652 P.2d 51 , 60 ( 1982) . 5. That the expression may take place elsewhere is insufficient. Southeastern Promotion�, Ltd. v. Conrad, 420 U.S. 546 , 556 ( 1975) ; Thornhill v. Alabama, 310 U.S. 88, 106 ( 1939) ; Sehneider v. State, 308 U.S. 1�47, 163 ( 1939) ; H-CHH, 238 Ca1 .Rptr. at 853• 6. The need to pursue criminal prosecutions is insufficient. Wendling v. City of Duluth, �495 F.Supp. 1380 (D.Minn. 1980) ; Alexander, 227 N.W.2d 370 ( 1975) . 7. An "adverse effeet" on the "environment, atmosphere or image" is insufficient. H-CHH, 238 Cal .Rptr. at 852. 8. "[U]ndifferentiated fear or apprehension of disturbance is not enough to overeome the right to freedom of expression." Tinker v. Des Moines Indep. Community Sehool Dist. , 393 U.S. 503, 508 ( 1969) ; Jamison v. St. Louis, 828 F.2d 1280, 1285 (8th Cir. 1987) , a pp eal pending. 9. Keeping the streets clean is insufficient. Lovell v. Griffin, 303 U.S. �44� ( 193$) . -55- �. � Furthermore, the City cannot constitutionally rely upon an irrebuttable that any alleged part abuses will oecur in the future. Alexander v. City of St. Paul , 227 N.W.2d 370 ( 1975) . c. At a minimum, the procedural safeguards must include: 1 . The burden of instituting a �udicial proceedings must rest with the City; and, 2. The burden of proving, in an adversarial �udicial proceeding, that the specific nudity and/or nude dancing is obseene (or constitutes a '�sexual performance'� ) must rest with the City; and, 3. Any restraint imposed prior to the judicial proceeding must be for the shortest of specified times; and, 4. Any restraint imposed must oniy be for the purpose of preserving the status quo; and, 5. A prompt and final judicial determination must be assured. Southeastern Promoters, Ltd. v. Conrad, 420 U.S. 5�6, 560 ( 1975) ; Pestrak v. Ohio Eleetion Com'n, 670 F.Supp. 1368 (S.D. Ohio 1987) ; Wendling v. City of Duluth, 495 F.Supp. 1380, 1386-87 ( 1980) ; Bayside II , �70 F.Supp. at 11��; Alexander v. City of St. Paul , 227 N.W.2d 370i 375-76 ( 1975) . Accord Northwest Publications, Inc. , 259 N.W.2d 25�, 257 (Minn. 1977) - Our very presenee in these proceedings establishes that the licensing scheme and these proceedings lack these procedural safeguards. -56- d. Criminal proceedings are currently pending coneerning the allegations coneerning T.D.M. The faet that the City is, in addition, attempting to take adverse action, in these proceedings, against the licensee or the license held by MFL, Ine. on the basis of Counts 3 and 4 as contained in the Notice establishes that the means utilized by the City is not the least restictive alternative on protected expression. As the Minnesota Supreme Court has explained: The remedy presently available to the City of St. Paul for plaintiff' s [alleged] past abuses lies not in the suppression of the right to show all films, but in the eriminal prosecutions of constitutional obscenity laws. The risk that eriminal sanetions will be insufficient to deter future violations of the ordinance cannot justify the city� s attempt to revoke plaintiffts license in the face of his right to free speech guaranty of the First Amendment. Alexander v. City of St. Paul , 303 Minn. 201 , 227 N.W.2d 370, 373 ( 1975) . Accord Shelton v. Tucker, 36� U.S. 479, 488 ( 1960) ("even though the governmental purpose be legitimate and substantial , that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breath of the legislative abridgment must be viewed in light of less drastic means for achieving the same purpose. " ) . 3. The procedure utilized the conclusions and the proposed adverse aetion violate Respondent� s ri ht to due process and freedom of expression and are clearly erroneous under the law.--The City has not satisfied its burden that the licensee -57- . F violated Minn. Stat. §617.2�6. Su ra. Furthermore, Chapter 310 of the Code has no vicarious liability provision. In addition, the ALJ and the City Couneil conducted the adverse hearings upon the wrong standard of proof and have denied the Respondent the presumption of innocenee and presumption of being within proteeted expression guaranteed under the federal and state Constitutions. Although Section 1400,7300(5) of the Rules of Administrative Procedures provides that: The party proposing that certain action be taken must prove the facts at issue by a preponderanee of the evidence, unless the substantive law provides a different burden of standard. . . . See also, In re Kaldahl, 418 N.W.2d 532 (Minn. App. 1988) . Under the circumstanees of these proceedings, the City of St. Paul must satisfy its burden of proof based upon standards greater than a preponderanee. In order to prove violations of law, due process requires that the City of St. Paul has the burden of establishing, beyond a reasonable doubt, that a crime, ineluding the element that the expression is beyond the realm of proteeted expression, has been eommitted and that the person alleged to have committed the crime has committed it. As the United States Supreme Court has explained: Where one party has at stake an interest of transcending value--as a criminal defendant his liberty-- this margin for error is reduced as to him by process of placing on the other party the burden of producing a sufficiency of proof in the first instanee, and of pursuading the fact -58- . , � �'_ ��,�� finder at the conclusion of the trial of his guilt beyond a reason- able doubt. . . . Where the transeendent value of speeeh is involved, due process eertainly requires in the circumstances of this case that the State bear the burden of persuasion to show that the appellants engaged in eriminal speech. Speiser v. Randall , 357 U.S. 513, 526 ( 1958) (emphasis added) . The City' s own ordinanees require that standard. Section 310.06(b) (6) requires that the "license or applicant has violated. . .the statute.�� Blaek' s Law Dietionery defines "violation�� as ". . .breach of. . .law." Furthermore, the City' s own guidelines state "Commission of a felony." Blaek' s Law Dietionery defines "commission�� as "Doing or perpetration; the performance of an act." Minnesota Statutes §609.02(2) defines "felony" as "a erime for which a sentence of imprisonment for more than one year may be imposed. ' Minnesota Statutes §609.02( 1 ) defines "crime" as "conduct which is prohibited by statute and for whieh the actor may be sentenced to imprison- ment. . . ." Because the Fifth and Fourteenth Amendment to the United States Constitution and Artiele 1 , §7 of the Minnesota Constitution preelude imprisonment without proof beyond a reasonable doubt and because they require a presumption of innocenee, one cannot be held to have ��violated the statute" or "committed" a "felony" unless the state satisfies its burden of proving the act beyond a reasonable doubt. The adverse hearings were not even conducted according to a standard of clear and convineing evidence. See e.�. , Pestrak v. Ohio Eleetions Com'n, 670 F.Supp. 1368 (S.D. Ohio 1987) ; -59- , 4 Boise Corp. v. Consumers Union, �66 U.S. 485, 511 ( 198�) . The failure of both the ALJ and the Couneil to conduet the adverse hearing pursuant to the correet standard of proof violates Respondent' s rights to due process. In addition, the City of St. Paul must satisfy this burden aceording to the Minnesota Rules of Evidence--not by "hearsay evidence, which possesses probative value commonly aceepted by reasonable and prudent persons in the conduet of their affairs."8/ pestrak v. Ohio Eleetions Com'n, 670 F.Supp. 1368 (S.D. Ohio, 1987) . Furthermore, the licensee is entitled to a presumption that the nude dancing alleged in Counts 3 and 4 is within the realm of protected expression. See cases listed supra at 47. III. IF THIS COUNCIL PASSES ONE OF THE PROPOSED RESOLUTIONS, A STAY IS APPROPRIATE Minnesota Statutes §1�.66 provides, in relevant part, that: The filing of the writ of certiorari shall not stay the enforcement of the agency decision; but the ageney may do so, or the court of appeals may order a stay upon such terms as it deems proper. $� Seetion 310.05(e) of the St. Paul Le�islative Code. -60- . 4 O U �� 7'-��.b Thus, the City Council has the power to enter a stay pending a final decision on all appeals of this matter. If this Couneil pases one of these proposed resolutions, the Council has a constitutional duty to grant a stay because the revocation and non-renewal of the licenses, under the circumstance of these proceedings, constitutes a prior restraint. Su ra at 48-59. The minimal procedural due process safeguards, as set forth su ra at 57, require that this Couneil grant the stay to prevent an additional prior restraint and to preserve the status quo. This procedure is intended to reduce the danger of suppressing constitutionally proteeted speeeh and to utilize the least restrictive alternative. Schad v. Mount Ephraim, 452 U.S. 61 ( 1981 ) ; Southeastern Promoters, Ltd. v. Conrad, 420 U.S. 546 ( 1975) ; Pestrak v. Ohio Eastern Com�n, 670 F.Supp. 1368 (S.D. Ohio 1g87) ; Wendling v. City of Duluth, �495 F.Supp. 1380 ( 1980) ; Alexander v. City of St. Paul, 227 N.W.2d 370 ( 1975) . If this Council refuses to enter the stay, the Council is not only violating the Respondent' s right to due process and freedom of expression, it is depriving numerous people of their livelihood. -61- . t IV. For all of the foregoing reasons, Respondent respectfully requests that the City Couneil does not pass either of the proposed resolutions. If, however, it passes one of the proposed resolutions, the Respondent respeetfully requests that the City Council include a stay of effectiveness of the resolution until a final decision is obtained in all appeals. COCHRANE & BRESNAHAN, P.A. By � AME . BRESNA AN Att rney I.D. ��11307 MARY F. SEYMOUR Attorney I.D. ��99�5� 2� East Fourth Street St. Paul , MN 55101 (6120 298-1950 Dated this 2nd day of September, 1988 . -62- .t , � � �- , - jk. �.:-�:':'' EXHIBIT A . ; i STATE OF MINNESOTA IN DISTRICT COURT � COUNTY OF GOODHUE FIRST JUDICIAL DISTRICT ------------------------ Richard and Gregory File No. 32596 Jacobson, d/b/a Jake'.s ' Food and Liquor, � Plaintiffs , FINDINGS OF FACT CONCLUSIONS OF LAW -vs- . AND ' ORDER FOR JUDGMENT The County of Goodhue, Defendant. ------------------------ � . The above-entitled matter came duly on for court trial on December 28 , 1987, before the Honorable Raymond Pavlak, at the Goodhue County Courthouse, in the City of Red Wing, County of Goodhue, State of Minnesota. � Randall D.B. Tigue, Esq. , appeared for Plaintiffs. Jan T. , Plummer, Assistant Goodhue County Attorney, appeared for Defendant. The Court, having considered the testimony presented at trial; having c�nsidered all of the files, records and proceedings herein, and bei�.g fully advised in the premises, now makes the following; FINDINGS OF FACT 1. Plaintiffs Richard and Gregory Jacobson are the proprietors of Jake' s Food and Liquor, located in the City of Cannon Falls, County of Goodhue, State of Minriesota. 2. The County of Goodhue is a unit of county government organized under the laws of the State of Minnesota and has lawful authority to issue licenses for the sale of liquor. p� � � � � r F E B 2 4 1988 I,AVrt�ttC� H. P�1��9� COURT AAMI�IS�'RAgea ��"�� 9.� , �1i�� •.� y ' ,� . c:. ,. . �_-:�.�. �� - ��a G 3. The Minnesota Constitution contains no provision granting express authority to the government to restrict freedom of expression in liquor establishments. 4. There is no evidence that the nude dancing performance is obscene, or that crime increased in and around Jake' s Food and Liquor as a result of nude dancing being performed on the premises. 5. The dancers do ,not mingle with patrons. , 6. Goodhue County Ordinance 87-1 is �not a valid exercise of Goodhue County' s police power. 7. Goodhue County Ordinance 87-1 violates Article I, Section 3 of the Minnesota Constitution. � 8. That the attached memorandum in incorporated herein by reference. Based upon the foregoing Findings of Fact, the Court makes the following; � CONCLUSIONS OF LAW 1. That Goodhue County Ordinance 87-1 is vosd. 2. That Goodhue County is permanen�ly enjoined from enforcing Goodhue County Ordinance 87-1. LET JUDGMENT BE ENTERED ACCORDINGLY, after a stay of fifteen (15) days. Dated this ' �day of Febru:ary, 1988 . BY THE COURT: a Judge f District Court -2- • •-, • �ti , ti . �;•'';, -• I , . �:::. .:,. ' � M E M 0 R A N D U M Is Goodhue County Ordinance 87-1, Regulating Nude Dancing in Bars, unconstitutional? Plaintiffs argue that the ordinance violates their right to freedom of expression guaranteed by Arti�le I, Section 3 of the Minnesota Constitution. Goodhue County claims , that although nude dancing has some canstitutional protection, restricting nude dancing in 'bars is a permissible infringement on freedo::� of expression. Restrictions on nude dancing performed in liquor establishments have been upheld as constitutional under the Unitpd States Constitution. California v. LaRue, 409 U.S. 109, 118-19 (1972) . Such restrictions on First Amendment rights were allowed because of the authority to regulate intoxicating liquors provided by thP Twenty-First Amendr�ent. Id. at 114; Doran v. Salem Inn, 422 U.S. 932-33 (1975) . � It is Plaintiff' s �claim that the Goodhue County ordinance violates the Minnesota Constitution, not the United States � Constitution. In addressing the constitutionality of the ordinance, the Court must balance the interests in regulation and in freedom of e:cpr.ession. Koppinger v. City of Fairmont, 311 Minn. 186, 190, 248 N�92nd 708, 711 (Minn.�� 1976) . The factors to consider when balancing these interests, are whether the regulation is within the constitutional powPr of the government; whether the regulation furthers an important or substantial governmental interest; whPth�r the governmental interest is unrelated to the suppression of free • ��.'-� a . `- ' � �'t-,' F _ exprpssion; and whether the incidental restriction on First Amendment rights is no grPater than necessary to further the interest. Id. 311 Minn. at 191, 248 NW2nd at 710-11 (quoting United States v. O'Brien, 391 U.S. 367 , 376 (1968) ) . ' The parties ' dispute centers on whether the ordinance is within the constitutional power of Goodhue County. Plaintiffs contend Goodhue County� has no power t� restrict freedom of expression guaranteed by the Minnesota Constitution, since the Minnesota Constitution contains no provision analogous to the Twenty-First Amendment of the United States Constitution. Other states have invalidated ordinances regulating nude dancing in bars, because their state constitutions contained no provisions to ju.stify restrict- ing freedom of expression where liquor is sold. See Mickens v. City of Kodiak, 640 �P. 2d 818, 821 (Alaska 1982) ; Bellanca v. New York State Liquor Authority, 54 NY2nd 228, 529 N.E. 2nd 765, 768, 445 N.Y. S 2nd 87 , 90 (1981) , cert. denied, 456 U.S. 1006 (1972) ; Sekne v. City of Portland, 81 Or. �App. 630, 726 P. 2d 959 , 964 (1986) . Goodhue County argues that Minnesota law has acknowledged statP authority to regulate nude dancing in bars. See Koppinger v. City of Fairmont, 311 Minn. 186, 194, 248 NW2nd 708 , 713 (1976) (noting California v. LaRue, 409 U:S. 109 (1972) ) . Hawever, Koppinqer dealt solsly witY�� whether an ordinance was an overbroad intrusion into freedom� of expression. Koppinger, 311 Minn. at 189 n. 2, 248 NW2nd at 710-11 n. 2. The ordinance in Koppinger allegedly violated both the United States and Minnesota Constitutions . Id. at 189, 248 NW2nd at 710. And, it is unclear under which constituti�n thP ordinance was held invalid. Minnesota law has -2- .'� , � , f_ ." �, .. �`.. �?.' .. . not specifically addressed whether a county has power pursuant to Minnesota Constitution to restrict freedom of expression. The police power under Article I, Section 2 of the Minnesota Constitution, might provide a basis for restricting nude dancing in bars. Goodhue County may exercise its police power for the protection of public health, welfare and morals. Abeln v. City of Shako�ee, 224 Minn. 262, 267, 28 NW2nd 642, 645 (1947) . Restricting public nudity is a valid, moral interest. Koppinger, 311 Minn. at 190, 248 NW2nd at 711 . Nonetheless, any exercise of police power must be reasonably designed to accomplish its purpose without going further than necessary. Westland v. Minnesota Railroad and Warehouse Commission, 251 Minn. 504, 510, 88 NW2nd 834 , 838 (1958) . Plaintiffs employ dancers to perform to music on a dance floor for the entertainment of patrons. ThP. dancers do not mingle with patrons. There is no contention that the performance is obsc:ene, or that the bar has been the source of crime, such as , drug distri- bution, disorderly conduct, assaults or sexual improprieties . No one who prefers not to is forced to watch ths performance. There � is no evidencP that thP public morals rPquire this prot?ction. There is no justification for Goodhue County using its police power to restrict freedom of express.ion. Goodhue County has no constitutional power pursuant to the Minnesota Constitution to restrict freedom of expression. Goodhue County Ordinance 87-1 is invalid under the Minnesota Constitution. R.P. -3- „ , +F ' A � ' ��-^ . . �,...: . Cl � I /�d' � ' . . .�.._: . '�,�y” • . .::.:• ..- °�.'- ' _ ' Clerk'a Notiee Punusnt W Rules otCiril Ptocedure—i7.M(Rev.9-851 EUSINESS RECOPDS CORPORATION.MINNESOTA STATE OF MINNESOTA, IN DISTRICT COURT COUNTY OF GOODHUE � FIRST JUDICIAL DISTRICT No. 32596 Richard and Gregory Jacobson, d/b/a Jake's Food and Liquor Plaintiff - The County of Goodhue Defendant To: Mr. Randall D. B. Tigue, Esq. Ms. Jan T. Plummer, Assistant Goodhue County Attorney FIWINGS OF FACT; CONCLUSIONS OF LAW AND YOUAREHEREBYNOTIFIED, That a � ORDER FOR JUDGMEVT IOrder,neciaion or Jud�cmrntl in the above entitled cause was,on the 24th day o f Februarv , jg_88 f iled (Filed or F.nteredl in the office of the Court Administrator. Dated February 24th, A D. 1�8 Lawrence H. Peterson , ,' �� By �� ,G� h� Depury .,;,_�:� . .-r,;. � �� " �� ' ' ' ' RECEIVED AUG - 11988 CITY CLERK STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS rlo . City-88-Q121-CG-53=2101-2427-G — — — — — — — — — — — — — — — — — — CITY LICENSE IL�SPECTOR In the Matter of the On=Sale Liquor EXCEPTION5 TO FINDINGS, License for the Belmont Club CONCLUSIONS AND _ _ _ _ _ _ _ _ _ _ _ _ _ _ RECOMMENDATIONS The City of Saint Paul , acting through its License Inspector, files the following exceptions pursuant to Minn. Stat. 1986 , section 14.61 , to the Report of the Administrative Law Judge (hereafter , "ALJ") in the above matter , which was dated July 6, 1988 , and filed with the City Clerk thereafter . I. Exceptions to Findings of Fact. A. Finding 8_ This finding does not include a finding, as it necessarily should , that the minor T.D.M. did not supply any birth certificate or age identification to employees or managers of the licensee, or to David Fan. There was sufficient credible evidence from which to determine that T.D.M. was not asked to document her age, and that the contrary testimony of one Belmont employee was not trustworthy. The ALJ's memo at pp.7=8 rejects the testimony of the Belmont employee who said T.D.M. furnished a birth certificate. B. Finding 8: This finding should include a finding that a reasonable person would have inquired further as to the age of T.D.M. in spite of her appearance, as is conceded in paragraph 2 of the ALJ's Report on page 8 (unnumbered pages) . C. Finding 8: This finding should include a finding that T.D.M. had no known motive to testify falsely concerning her employment as a dancer and the surrounding circumstances , and no interest in the outcom e of the proceedings. No such motive or interest was shown. 1 ��_, /�'``T�o� � D. Finding 8: This finding should include a finding that the witnesses on behalf of the Belmont contradicted each other on key points relating to the management and control of dancers, and had an interest in the outcome of the proceedings and a motive for testifying falsely, arising out of continued employment and the prospects for future employment at the Belmont Club. E. Finding 9: This finding should be expanded to indicate that there was no evidence that any dancer com plied with the terms of the Dancer's Agreement , or that any action was taken under the contract against violations thereof by dancers. F. Finding 1PJ: This finding does not include and should include a further finding that (1) there was no showing or evidence that the dancers or any of thern com plied with the instructions , and (2) that no evidence was introduced to show that any dancer was ever disciplined for failure to abide by the instructions . G. Finding 11: This finding should be clarified by adding that despite the fact that T.D.M. " . . . could be mistaken for an eighteen-year-old" , the facts and circumstances were such that a reasonable person would not have accepted her statem ent at face value , but would have inquired further (as the A1J concedes on p. 8 of her memorandum attached to the Findings) . H. Finding Somewhere in Findings 8 through 16, a finding should note that questioning by counsel for respondent brought out a second incident regarding a 16 year old dancer at the Belmont who did not have age identification on her person while in the establishment. I . Finding 18: This finding is misleading in its use of the word "source". There is ample reliable evidence in the record from which to infer and conclude that the Belmont Club was used as a resort for prostitutes in violation of the legislative code, and this finding should be reflected therein. J. Finding 19: This finding should be expanded to make clear that the ef forts by Dav id Fan to show interest in cleaning up prostitution in his bar and parking lot did not begin until after it was clear the City was going to take action against his license. It should also 2 make clear that the com plaints of the neighbors had been made long before such a hearing was scheduled. K. Finding 2P1: This finding is objectionable in that it distorts the evidence. The evidence was clear that the Belmont management and employees maintained they had no prostitution problem and no knowledge of prostitution or problems related to it. It is inconsistent to state they were cooperative with the police without further findings concerning their attitude toward the problem itself. L. Finding 20: The part of this finding relating to Lend way' s Bar m i s ses the po int of the ev idence. Lendway' s management has sought to aggressively deal with prostitution by calling the police at all times when they see a problem; in contrast to the Belmont, which seldom if ever, call police to assist in dealing with prostitutes. III. Exceptions to Conclusions of Law. A. Conclusion 5: This conclusion is erroneous in that licensees are always accountable for the actions of their employees. The fact that such employees may be di scipl ined in any one way or another by the 1 icensee does not absolve them of the responsibility for their actions. Selling drugs in a parking lot under the control of the licensee, and interfering with police officers enforcing the law in the same parking lot , are violations which relate to the licensed activity and subject the owner to penalties . B. Conclusion 6: Same as above. C. Conclusion 8: This conclusion conflicts with Finding of Fact 8. The evidence sho ws that David Fan hired T.D.M. and paid her for her dancing. T.D.M. never signed a contract with the so-called Dancing Angels until January 5, 1988, more than 7 weeks after she was auditioned by David Fan , and had already worked for David Fan for 6 weeks . D. Conclusion 8 : There is more than sufficient evidence from which to infer that David Fan hired T.D.M. to engage in a sexual perform ance, and that he openly and notoriously permitted her to continue to do so for many weeks. Conclusion 8 conflicts with the statem ent of the A1J at page 8 of her m emorandum (last 12 lines) . 3 It is not necessary to have repeated observations, or other incidents. One can infer from the nature of the Belm ont Club and the totality of the evidence that the way T.D.M. danced on February 2, 1988, was the way she always danced . E. Conclusion 101: This conclusion is excepted to because there is strong and com pelling evidence from which to infer and conclude that David Fan' s conduct in hiring T.D.M. and permitting her to work in the way she did was reprehensible and sho ws him to lack the requisite good moral character to hold a liquor license . F. Conclusion 12: This conclusion is excepted to because the ev idence i s very strong that Dav ic3 Fan perm i tted the Belmont Club to be used as a resort for prostitutes , closed his eyes to the problem, and took no corrective steps until city action was threatened . Members of the Council are urged to read the brief submitted on behalf of the City, and attached hereto , with respect to Conclusions 1� and 12: (1) pp. 1P1-13 concerning the minor T.D.M. as a dancer ; and (2) pp. 7- 10 concerning prostitution. III . Exceptions to Recommendations. The recommendations made by the ALJ are excepted to, and the Council urged not to follow them. The recomm endations do not even constitute a slap on the wrist , but reflect too great an emphasis attached to the actions of the licensee after becoming aware that City disciplinary action was impending . Such recommendations do not take into account the deterrent effect that a revocation or lengthy suspension would have on other licensees. On behalf of the License Inspector , the remarks in the City Brief at pp. 14=15 in its "summ ary" are once again made, and urged upon the Council . IV. Amended Findings, Conclusions and Recommendations. Attached hereto are proposed amended findings and conclusions which are prepared for use in lieu of those contained in the ALJ Report. 4 The undersigned urges that the Council adopt all the Findings and Conclusions of the ALJ except those for which an Amended Finding or Conclusion is proposed . Submitted this lst day of August , 1988. . ` /�/ • Philip B Byrne Assistant City Attorney Attorney for City of Saint Paul - License Inspector 647 City Hall Saint Paul , Minnesota 55102 (612) 298-5121 Attny. Reg . No . 13961 5 . ��'- /��' � APPENDIX I. Amended Findings of Fact A. Amended Finding 8 : "8. In late November or early Decem ber , 1987 , a 13 year old having initials T.D.M. applied for employment at the Belmont Club. The job required her to dance in a glass cub icle adj acent to the area where dr inks are served in the Belmont Bar. The cubicle was twenty or twenty five feet by fifteen feet. T.D.M. was born on Jan. 17 , 1974. She was 13 years old when she was hired. She never filled out an application for em ploym ent, and lied about her age to Dancing Angels manager Nancy Osterman, when she asked. She then perform ed an audition. David Fan was present at the audition. She was hired by David Fan. T.D.M. did not sign a contract with the so-called Dancing Angels, Inc . , until 7 weeks after her audition. She was clearly an em ployee under the direction and control of David Fan. T.D.M. did not furnish Nancy Osterman or David Fan with a copy of her birth certificate or any other proof of age when she was hired , or at any time thereafter . A reasonable person would have inquired further about T.D.M.'s age, given all of the facts and circumstances at the time she was hired . T.D.M.' s testimony that she was not required to prove her age is credible; she had no motive to testify falsely in the 1 icense hear ing, and no interest in the outcome of the license proceedings. Testimony of witnesses for the Belmont contradicted each other on matters relating to the control and managem ent of the dancers, and all had an interest in the outcome of the proceedings ." B. Amended Finding 9 : "9. T.D.M. signed a "Dancer Agreem ent" with Dancing Angels, Inc., which provided, among other things, that she was an independent contractor, free to exercise her own judgment as to costuming , exotic dance routines , and music used "as limited by applicable laws and ord inances." Respondent's Ex. A. This Agreement al so spelled out "Responsibilities of Dancer ," including that " (d) ancer shall abide by all applicable laws , statutes, ordinances and regulations governing exotic dancing. . . (and) shall not . . . commit any felony. . ." Respondent' s Ex. A. This Agreement was executed on 6 Jan. 4, 1988 , after T.D.M. had danced for 6 weeks in the Belmont Club. Ex. A. Even though T.D.M. signed the Agreem ent with Dancing Angels, Inc., she understood that she worked for the Belmont Club, and that her boss was David Fan." There was no evidence introduced to show that any dancer com plied with the terms of the Agreement, or that any action was taken under the Agreement by the managem ent against dancers who failed to so comply. C. Amended Finding 10 : "10. "Dancing Angels" are instructed that they can' t touch themselves in their genital areas. The St. Paul Legis. Code which relates to this subject is reviewed with the dancers periodically, and there is a sign posted in the dancer' s dressing room which states : "You cannot touch , caress or fondle your breast , buttocks , anus or genitals. If you can' t follow this rule you will lose your job! . . . Att. all dancers , you must carry your val id Minn. I.D. on you at all times or you don' t dance. So don' t lose it ." Respondent' s Ex. D. There was no evidence or showing that the dancers or any of them complied with those instructions, nor was any evidence introduced to sho w that any dancer was ever disciplined for failure to abide by such instructions . D. Amended Finding 11 : "11 . T.D.M. looks older than her age, and could be mistaken for an eighteen-year , . � . , {.�� ,s�� F. Amended Finding 18: "18. The Belmont Club is located in a high crime/ high prostitution area. While the Belmont is not the sole and exclusive source of prostitution in the area, it is used by prostitutes in sufficient numbers for m eeting with johns, for shelter from the elements, for avoiding police officers, for meeting with pimps, and in conjunction with the parking lot using the licensed activity as a base of operations. Prostitutes use houses on Sherburne. G. Amended Finding 19 : "19. The Belm ont Club wasn't "targeted" for protest by community action groups until recently. After the T.D.M. incident, David Fan met with the vice squad to discuss procedures that were going to be followed. Sgt. Schaub expressed his intention to give the Belm ont more photographs of known prostitutes and pimps , but wasn' t going to do that until a procedure was settled upon. City officials met with Belmont representatives on April 1 , 1988 , to try to reach an agreem ent to eliminate the prostitution in the Belmont parking lot. David Fan said he would hire a security guard and do everything possible to eliminate prostitution in the lot. He requested photographs of known prostitutes and pimps. He suggested that seminars be given to his employees regarding how to identify prostitutes or pimps. He was cooperative regarding eliminating the problem , looking for guidance from the police department. During the last month, there has been a "tremendous improvement" in the discouragement of prostitution around the Belmont; Chris, the security guard , currently is doing an "excellent job" of "shooing girls off the lot". During the last couple months, Belmont employees have been more vigilant about stopped prostitutes at the entrance to the parking lot. The Belmont parking lot is well-lit and the trees in the area have been trimm ed. The Belmont e�forts at improvement are clearly related to and result from the initiation of enforcem ent action against the licenses of the Belmont Club . H. Amended Finding 2PJ: "2�1. The Belmont management has not always cooperated with the police as they come through the bar. The bar management allows the pol ice to come inside and make frequent checks. Bouncers and bartenders have 8 infrequently pointed out prostitutes and pimps to officers and asked officers questions regarding whether a woman is a working prostitute , but more often have failed to recognize that the problem exists and have not responded to Officer Lutchen' s requests to view photos of prostitutes working the Belmont Club and parking lot. The bar manager once has advised the pol ice , " I think he's a pimp; I think she's working." Officer Lutchen has advised the bar m anagem ent that they do have the right to evict known prostitutes , especially if they are working the bar , but he has never been asked to evict a prostitute. In contrast , he has been called approximately twenty times to evict prostitutes from Lendway's Bar near the Belmont and Lend way' s Bar has sought vigorously to deal with the problem. The Liquor License Inspector has received com plaints about prostitution in relation to the Belmont Club, but has not received similar com plaints about Lendway' s. II . Amended Conclusions of Law. A. Amended Conclusion 5: "5. Two incidents involving the possession of drugs by an em ployee in the licensee's parking lot do reflect the licensee' s failure to m aintain order , and are im putable to the licensee, even though the em ployee was punished by the licensee. The incidents do constitute activity by the licensee in violation of the law or which creates a serious danger to the public health , safety or welfare. Thus , the City has proved violations of St. Paul Leg. Code sections 31Q1.06 (b) (6) , 310.06 (b) (7) or 409.08 (5) due to the use of drugs in the Belmont parking lot . B. Amended Conclusion 6s "6. An incident involving an employee of the licensee who yelled at a police officer to discourage him from inve�rtigating possible prostitution outside the licensed premises does reflect the licensee' s failure to m aintain order and is im puted to the licensee , even though management apologized immediately and profusely for the employee's behavior, and required the employee to apologize to the officer involved. The incident did constitute activity by the licensee in violation of the law which creates a serious danger to the public health, safety or welfare. Thus , the City has proved 9 - . � . . � �'_ �'�� G violations of St. Paul Leg. Code sections 31�1.06 (b) (6) , 310.�J6 (b) (7) , or 409.08 (5) due to inter ference with the police by a Belmont employee ." C. Amended Conclusion 8 : "8. The 1 icensee, employed m inor T.D.M. who 1 ied about her age in order to obtain em ploym ent. The City has sustained its burden of proving that T.D.M. was em ployed for the purpose of engaging in a sexual perform ance , and has sustained its burden of proving that the licensee permitted a minor to engage in a sexual performance." D. Amended Conclusion 1QJ : "10. The City has sustained its burden of proving that the licensee is not of good moral character ." E. Amended Conclusion 12: "12. The City has sustained its burden of proving that the licensee permitted the licensed premises to be used as a resort for prostitutes ." - 1� , F � �'�_ '�� STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARING No. City-88-P121-CG-53-21A1-2427-G In the Matter of the On-Sale Liquor CITY OF SAINT PAUL BRIEF License for the Belmont Club IN RESPONSE TO MOTIONS _ _ _ AND IN FINAL ARGUMENT The following brief both responds to the salient motions made by the Respondent Belmont Club at the hearing on May 24, 1988 , and argues the matters tried to the Administrative Law Judge. - The brief is organized as follows : A. Motions to Dismiss 1 . Failure to State a Claim 2. Lack of Subject Matter Jurisdiction 3. Stay Pending Judicial Determination and Others B. Burden of Proof C. Chapter 364 D. Prostitution E. Unlawful Minor Employment F. Employee Misconduct G. Summary A. Motions to Dismiss 1 . Failure to State a Claim Respondent's motions in this regard seem to be based on the notion that the five counts or grounds spelled out in the Notice of Hearing cannot serve as the basis for adverse action against the licenses of the bar. A preliminary point. Attached hereto are copies of Chapters 31P1 and 409 of the Saint Paul Legislative Code (hereafter , "Code") , as well as Ordinance No. 17556, which was effective June 7, 1988. Also included are the resolution authorizing the use of hearing examiners, Council File No. 88-443 , effective April 9 , 1988, and Ordinance No. 17559, which makes the permanent changes in chapter 31� of the Code to permit the use of hearing examiners. 1 , Municipalities in Minnesota have inherent, wide=sweeping po wers to regulate the sale of intoxicating liquors, and to issue and revoke such licenses pursuant to that authority, and pursuant to such additional or specific ordinances and regulations as may be adopted. The authority vested in m unicipalities to pass on license issuance and denial (and revocation) is not limited by the ordinances they may choose to adopt. Country Liquors, Inc. v. City Council of the City of Minneapolis, 264 N.W.2d 821 , 824 (Minn . 1978) ; Moskovitz v. City of Saint Paul , infra. In a case in which the Council was presented with evidence of underage drinking , unlawful sales of marijuana in the bar , lack of cooperation of bar managem ent, and an assault and stabbing in the bar , the Court of Appeals upheld the denial of an injunction sought by the bar in district court, saying that "... (m) unicipal authorities have broad discretion to determine revocations of liquor licenses." Miller v. City of Saint Paul , 363 N.W.2d 806, 812 (Minn. App. 1985) . The Court cited with approval Moskovitz v. City of Saint Paul, 218 Minn. 543, 16 N.W.2d 745 (1944 ) , and�manson v. City of Saint Paul , 329 N.W.2d 324 (Minn. 1983) . In �manson, the revocation of a liquor license on grounds of after-hours display of alcohol and indecent exposure by male dancers was upheld as within the broad discretion of municipal authorities over the issuance , regulation, and revocation of liquor licenses, 329 N.W.2d at 326. In Moskovitz, the Court dealt with the question of whether the license could be revoked for "misconduct" or for offenses not specified in the City' s ordinance. The Court held that the ordinance was not the sole source of po wer to revoke, which arose as well under the police powers of the City or (in Moskovitz) an applicable charter provision. 16 N.W.2d at 749. Such broad municipal powers cannot be limited by the enactm ent of an ordinance of narrower scope. In Sabes v. City of Minneapolis, 265 Minn. 166 , 12 � N.W. 2d 871 ( 1963 ) , the license of the appellant was revoked for allowing the bar to be used as a resort for prostitutes. In discussing the city' s power , the Court said : "No citizen has an inherent or vested right to sell intoxicating liquors, and m unicipal authorities have broad discretion within their geographical jurisdiction to determine the manner in which liquor licenses shall be issued, regulated , and revoked. Inherent in the right to control the sale of liquor is the power to regulate related activities on the licensed premises. Basically it is the council' s duty to decid e whether the 1 icensee has been guilty of such unlawful conduct in the operation of his business that its continuance is detrimental to the public good. In reviewing the proceedings of the municipality it is not the court' s function to pass on the wisdom of the revocation , but 2 . only to determine whether the council exercised an honest and reasonable discretion , or whether it acted capriciously, arbitrarily, or oppressively. For us to assume greater responsibility would constitute an unconstitutional usurpation of nonjudicial power." 120 N.W. 2d at 875 . (Cites ommitted) . Countr� Li�uors , Inc. v. Cit� Council of the Cit� of Minneapolis, 264 N.W.2d 821 (Minn. 1978) , makes clear that the scope of discretion in licensing decisions given to m unicipalities is so broad that such decisions will not be overturned unless patently arbitrary and capricious. No licensee has a substantive property right in a liquor license. 264 N.W. 2d at 826. In addition to the inherent po wer of the City, a set of permissive grounds for revocations of all licenses ( including liquor licenses) are set forth in section 310.06 of the Code. Additional grounds are provided in section 4f�9.08 of the Code, supported by sections 409.12 and 409.14 of the Code. Section 231.�11 of the Code prohibits nuisances, and is a violation falling within sections 310.06 (6) and 310.06 (7) of the Code. It is clear that the allegations contained in all five counts fall well within the scope of undesirable activity which the Co uncil has the po wer to use as the basis for license revocation. One particular matter deserves further discussion . Respondent's counsel extensively discussed the legal inadequacy of using moral character or the lack thereof as a basis for licensing decisions. That discussion appears to be heavily centered on cases arising out of First Amendment rights, such as bookstore or theatre licensing , or the granting of parade or public assembly permits. This case is not a first amendment case. The licensee here is called to account for hiring a 13 year old girl for the purpose of providing sexual performances for bar customers. He will lose a liquor license. He will not lose his right to have a liquor license because he engaged in protected speech or offered dance as a protected comm unication. The lack of good moral character , or more properly, the lack of fitness to engage in a particular licensed occupation which is heavily invested with a strong publ ic interest in management in compliance with all laws and in harmony with public health , safety and welfare, is a legitimate ground for revocation of licenses. In Godfather, Inc. v. City of Bloomington, 375 N.W.2d 68 (Minn. App. 1985) , the Court of Appeals upheld the denial of a liquor license application on a finding by the city that the applicant lacked good moral character. 3 . , ��. �� In addition, Minn. Stat. 1986, ch. 364, impliedly authorizes the use of misconduct, or actions which would establish the lack of good moral character , when such actions or misconduct have resulted in convictions. A conviction of a crime which directly relates to the occupation for which the license is sought can be used against an applicant in accordance with section 364.03. Section 364.03 , subd. 2 (c) , recognizes that there can be a relationship between the conviction, and an applicants' "fitness" to engage in the licensed occupation. Peterson v. Minneapolis City Council, 274 N.W. 2d 918, 921 (Minn. 1979) . See also 9A McQuillin , Municipal Corporations , Sec . 26.189.05 concerning good moral character and fitness as a license prerequisite . Cases and argum ents by the licensee in relation to good moral character all relate to licenses directly regulating speech or depictions protected by the First Amendment , and are inapposite here. This adverse action relates to the intoxicating liquor licenses and licenses specifically covering the premises licensed for liquor sales. As counsel for the licensee has taken pains to point out , the licensed premises does not include the area behind the glass wall wherein the sexual performances testified to take place. Revocation of such licenses under counts 3 and 5 of the Notice of Hearing is not premised on the content of the nude dancing , how it is performed , or even the fact of its performance. Nor it is based on the idea that the dancing was or was not obscene. It is based on the fact that David Fan lacks the good moral character and fitness to have a liquor license because he hired a thirteen-year old girl for purposes which violate Minn. Stat. 1986, sec. 617.246; because he did so with a callous disregard for doing the minimally reasonable steps to check her age; and because at the time he was president of both Dancing Angels, Inc. (which em ployed the dancers) and of MFL, Inc. ( which was with Clayton Club, Inc., the liquor license holder) . 2. Lack of Subject Matter Jurisdiction This motion does not state a proper ground for dismissal . It may be that a city council' s action in revoking a particular 1 icense can be challenged successfully in court on the basis of First Amendment, but the city council has the ower to consider and take action on licenses. As stated before, this is not a case whose outcome depends on First Amendment analysis. But even if it did have some free 4 speech overtones, the law is not as counsel for the Respondent would have us believe. The United 5tates Supreme Court said in City of Newport v. Iacobucci , U.S. , 93 L. Ed. 2d 334, 338 =39, (1986 ) : "The reach of the Twenty-first Am endm ent is certainly not without limit, but previous decisions of this Court have established that , in the context of liquor 1 icensing , the Amendment confers broad regulatory power s on the State ." "While the States, vested as they are with general police power , require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power , the broad sweep of the Twenty- first Am endm ent has been recognized as conferring som ething more than the normal state authority over public health , welfare, and m orals." California v. LaRue, 409 US 109, 114 L Ed 2d 342, 93 S Ct 39�1 ( 1972) . "This requlatory authority includes the power to ban nude dancing as part of a liquor license control program. "In LaRue . . . we concluded that the broad po w ers of the States to regulate the sale of liquor , conferred by the Twenty--first Amendment outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as part of its liquor license program." Doran v Salem Inn, Inc., 422 US 922, 932=933, 45 L Ed 2d 648, 95 S Ct 2561 ( 1975 ) ." Eighth Circuit decisions based on LaRue clearly have upheld a municipality's (or State's) power to prohibit sexually-oriented entertainm ent in bars selling liquor. Blatnik Co. v. Ketola, 587 F. 2d 379 (8th Cir . 1978 ) ; Paladino v. City of Omaha, 471 F. 2d 812 (8th Cir. 1972). Clearly these cases would have to stand for the correlative power to revoke or suspend liquor licenses for such offenses in violation of the ordinances upheld therein. More recently ordinances banning nude dancing or sexually= explicit performances in bars have been attacked on grounds of the free speech provisions of the state, as opposed to federal , constitution. Several states have struck down local ordinances on the debatable basis that their own constitutions do not have a twenty'-first amendment analogue in them , and therefore do not come to the same result sa LaRue. See , e.g., Bellanca v. New 5 , York State Li uor Authority, 429 N.E. 2d 765 (N.Y. 1981) , a four- to-three decision in which the dissent seems more persuasive. There is no case squarely on point in Minnesota , but the direction of the case law seems to indicate a result upholding local regulation. In Koppinger v. City of Fairmont, 311 Minn. 186, 248 N.W. 2d 708 ( 1976) , a local ordinance was in fact challenged on both state and federal first am endm ent grounds. And while the ordinance attached was invalidated because it applied to all places, not just to bars, the Court' s opinion in several places points out that if the ordinance had been restricted in its application to bars, it would have been upheld. Since Koppinger, Federal Distillers, Inc. v. State, 304 Minn. 28, 229 N.W.2d 144 (1975 ) , has discussed the relationship of the Twenty=First Am endm ent of the U.S. Constitution to Minnesota constitutional guarantees, indicating that while the said Amendment does not limit equal protection or due process guarantees of the Minnesota Constitution, there m ust be a "compelling reason peculiar to this state" to justify more stringent state standards. 229 N.W. 2d at 154 -55. In a decision in the Court of Appeals by Judges Popovich, Wozniak and Huspeni , Anton' s Inc. v. City of Minneapolis, 375 N.W. 5BJ4 (Minn. App. 1985) , the Court clearly reads Koppinger to stand for the proposition that local governments may prohibit nude and sexually=explicit performances in bars as against the state and federal challenges raised in Koppinger. 3. Stay Pending Judicial Determination and Other Respondent has had ample opportunity over the foregoing two to three months to seek judicial relief and has not done so. No basis exists for a stay by the Administrative Law Judge in this case. Respondent's written papers request the award of costs and attorneys fees , but cite no authority. Such requests were not argued, and are either without foundation or have been waived by Respondent. City opposes any such request without briefing and argument. B. Burden of Proof The burden of proof herein in proving the facts at issue is by a preponderance of the evidence, unless the substantive law provides a higher burden. Minnesota Rules, Part 1400.374J�, subp. 5. Counsel for the City is not aware of any case which would prescribe a higher standard for proving up the facts . 6 The quantum of proof needed to support a decision, however, is the next test , and in Minnesota the test is that there must be such substantial evidence in the record sufficient to show or persuade the reviewing court that the action of the City Council in revoking a license was not arbitrary or capricious. See , e.g., Country Liquors, Inc., v. City Council of the City of Minneapolis, 264 N.W.2d 821 , 824-25 (Minn. 1978) ; and Sabes, supra, 120 N.W. 2d at 876 n.7. The Hughes case footnoted in Sabes indicates that "sufficient com petent evidence" to sustain an administrative decision is the equivalent of a preponderance of the evidence test. Hughes v. Department of Public Safety, 2f��1 Minn. 16, 273 N.W. 618, 623 (1937) . C. Chapter 364 Minn. Stat. 1986, ch. 364, by its term s, applies only to the use of convictions. It does not apply to misconduct, evidence of bad character, or to actions which show unfitness in character or temperament ( and which may also be crimes) . Its patent legislative object is to prevent the use of the fact of a conviction, which carries a special stigma and which does not by itself reveal the particularized lack of gravity or culpability that circumstances might show. To read Chapter 364 otherwise , to bar all proof of actions that may be crimes (regardless of whether charged, how charged, the differing standard of proof, and the widely divergent goals of the licensing regulatory process and the criminal system) is to handcuff licensing authorities. It would in effect convert the procedures and standards of administrative licensing law to a criminal standard and procedure, with serious adverse effects on the police power goals of licensing. It seems clear that section 364.04 , in barring the use of arrest records , does so with reference to the arrest records pertaining to the individual whose license is at issue. There is no definition of an arrest record in section 364.0�4. But the Government Data Practices Act furnishes a guide as to what would be in an arrest record. See Minn. Stat. 1986, section 13. 82, subd. 2. The one report submitted in evidence, that by Officer Rogers (Exhibit 5) , does not meet those criteria , and therefore should not be rejected by this tribunal . D. Prostitution Count 5 of the Notice of Hearing alleges as follows : 7 5. The occurrence of acts of solicitation for prostitution and prostitution=related activities in the licensed premises, on the parking lot behind the licensed premises, and in the immediately adjacent area , all of which constitute (1) a nuisance, and (2) create or have created a serious danger to the public health, safety and welfare. Such actions have occurred on many occasions throughout 1987 and early 1988. Minn. Stat. 1986 , section 609.74 (and section 231.01 of the Saint Paul Legislative Code) provide that a public nuisance occurs when ". . . by an act or failure to perform a legal duty (a person) intentionally . . . ( 1) . . , permits a condition which unreasonably . . . endangers the safety, health, morals, comfort, or repose, of any considerable number of inembers of the public . . . ." Section 310. �J6 (7 ) of the Saint Paul Legislative Code (hereafter , "Code") provides as a permitted basis for adverse action ( including) revocation that " (t) he activities of the licensee in the licensed activity create or have created a serious danger to the public health, safety or welfare . . . . " Section 409.g8 (6) of the Code prohibits all licensees from perm itting ". . . the 1 icensed prem ises . . . to be used as a resort for prostitutes or other disorderly persons. . . ." Sabes v. City of Minneapolis, 12� N.W.2d 871 , 878-7g (Minn. 1963) , provides standards to be used here. "Mere presence" of prostitutes is not enough, and a single act of solicitation is not enough. But where the activities of prostitutes are engaged in openly and on such a scale and over such a lengthy period of time that any reasonable licensee would know about them , the licensee can be held accountable. Sabes, at 878, places a duty of inquiry on owners , removes the safety of ignorance, and requires the use of reasonable diligence to discover and address the problem. Sabes clearly provides that passivity and a failure to use preventi e action is sufficient to justify revocation. In this case, David Fan and his employees ignored what must have been all too obvious. There were consistently large numbers of prostitutes approaching potential custom ers in the Belmont Club parking lot. Melendez tr . 41 , 44; Eisenmenger , tr. 11�1, 112, 113 , 123; Meyer , tr. 66; and Lutchen, tr. 144, 145. There were, of course, frequent and noticeable acts of solicitation in the area immed iately adj acent to the 1 icensed prem i ses and parking lot, a fact going on at least to the knowledge of the employees and David Fan, and their professed lack of knowledge. Prostitutes used the licensed premises as a haven, as a place to 8 . �� ,, hide from police, a place to warm up. Melendez, tr . 43, 62. Prostitutes also used the licensed premises itself to solicit for prostitution. Rogers, tr . 138; Lutchen , tr . 146, 149=150. The licensee had to know of the acts of solicitation occurring in the bar . Officer Lutchen at one point repeatedly showed photographs of the prostitutes to bartenders and bouncers, but no action was taken. Lutchen , tr . 147 �=149. The employees and David Fan never acted to stop the problem, (Lutchen, tr. 149, 151 , 159) until recently, that is after steps were taken to initiate a public hearing on their licenses. See , e.g. Baker , tr . 213 . As a result of acts of solicitation in the bar , enforcem ent actions were taken by police officers. Lutchen, tr. 149=1501. David Fan admits responsibility for controlling prostitution in his bar and in his parking lot. Fan, tr. 281. But his em ployees unbelievably testify that the y have never seen a problem in the parking lot, Baker, tr. 220; can't tell who are or who are not prostitutes in the bar� Weinhandl, tr. 228-229; have never observed a problem in the bar or parking lot with prostitutes, even though it is part of their responsibility, Pape , tr . 196-197. One might reasonably infer that the free availability of prostitutes was seen by the licensee as helpful for business given the type of entertainm ent provided by the bar; or at least was not worth spending money or effort to curtail . In any event, no chang e took place until recently, which shows that minimal reasonable efforts could have addressed the problem. See, e,g, Melendez, tr . 44, 45; Eisenmenger , tr . 112; and Lutchen, tr. 163. The failure to use those efforts a year or more earlier establishes the bad faith and lack of sincerity of the 1 icensee in his recent attempts to remedy the problem. A flurry of activity in hiring an aggressive parking lot attendant , and setting up and attending self°-serving meetings with city officials does not rem ove the sting of past disregard and inaction. David Fan himself is and was the undisputed boss, even up to the present as to dancers, and directed all his employees. Pape, tr. 199, 200; Baker , tr. 218, 219; Weinhandl , tr . 230�, 230=231; Osterm an , tr . 255; and Fan , tr . 270. He is also responsible for the acts of his em ployees, both as a matter of agency law, and sections 409.14 and 4R19.08 (5) of the Code. "Nor can a licensee plead ignorance by delegating his responsibilities to any employee". Sabes, 12P1 N.W. 2d at 878. Fan spent enough hours in the bar to be aware of every person and every type of activity taking place in it. Fan , tr . 283; Pape , tr. 2�11. His recent efforts at reform smack more of an attempt 9 to avoid punishm ent, than of a diligent and reasonable effort to change a bad situation. He and his em ployees, instead of admitting they recog nized the problem and took no action, instead in consistent and similar testim ony, deny they ever really knew there was a problem. This is not credible , given the testimony by Melendez, Eisenmenger , Rogers and most of all , Lutchen . E. Unlawful Minor Employment Counts 3 and 4 of the Notice of Hearing allege as follows : 3. The unl�wful employment by the licensee of a minor for sexual performance in violation of Minnesota Statutes , section 617. 246 on or about February 2, 1988. 4. Permitting a minor to engage in a sexual perform ance in violation of Minnesota Statutes, section 617.246, on or about February 2, 1988, on or visible in the licensed premises. Minn. Stat. 1986, section 617.246, m akes it a felony offense to employ a minor (or to permit a minor) to engage in a sexual perform ance. A minor is a person under 18 years of age; a sexual performance can include a number of things as defined. In this case , it refers to acts of simulated sexual intercourse , lewd exhibition of the genitals , and physical or simulated physical contact with female breasts or unclothed pubic areas in an act of apparent sexual stimulation or gratification. Under the statute , the consent of the minor and mistake as to age are not defenses . In this case, the basis for adverse action is not that David Fan has been charged with an offense under section 617.246, nor that the type of dancing performed by the minor was obscene or immoral as to content. The basis is that David Fan's hiring of a thirteen-year old girl , under the circumstances which here showed a callous and reckless lack of inquiry as to her age, establishes misconduct under section 3101.P16 (9) of the Code, and is a violation of a statute reasonably related to the licensed activity under section 31A.06 (6) of the Code. Section 31�.06 (9 ) provides tht adverse action against a license ( including revocation) may be taken if the " . . . licensee . . . has shown by past misconduct . . . that such 10� license . . . is not a personal of the good moral character or fitness required to engage in a licensed activity, business or profession." Section 310.06 (6) provides tht such action may be taken if the ". . . licensee . . . has violated any of the provisions ... of any statute reasonably related to the licensed activity, regardless of whether criminal charges have or have not been brought in connection therewith." The distinction is that this section requires a civil showing that David Fan did the act which law makes wrongful, as opposed to showing he should be convicted of a crime. T.D.M. was 13 years old when she was auditioned and hired Tr. 85, 89. David Fan was at the audition and hired T.D.M. Tr. 9�J-91. She filled out no employment application. Tr. 92. She d id not produce any identi f ication, and 1 ied about her age. Tr. 90, 93 , 89, lAl. She did get an UnBank custom er card , two to three weeks after she was hired , on December 8 , 1987. Tr. 93, 95. Al1 the licensee's em ployees who testified stated that the UnBank card is not an acceptable form of identification to establish age. Pape, tr. 209; Weinhandle, tr. 232; Osterm an, tr. 249; and Fan, tr. 277. T.D.M. tho ught Fan hired her , and thought she was working for the Belmont Club. Tr. 90, 1�J6. David Fan is clearly the boss , and all his employees know he calls the shots. Pape , tr . 199 -�24!(�; Baker , tr. 218, 219; Weinhandl , tr. 23A, 230��231; Osterman , tr . 255; Fan , tr . 27�. On February 8, 1988 , T.D.M. engaged in a performance observed by Officer Rogers, immediately before her arrest, that qualified as a "sexual performance" defined in Minn. Stat. 1986, Section 617.246, and described above. Rogers , tr . 126, 133'=135; City' s Exhibit 5. Such report is not "a record of arrest" as defined in Minn. Stat. 1986, section 364.04 (2) . It is a verbal , written description of an event and actions by T.D.M. which he observed several days earlier. It is also admissible under the case of Sabes v. City of Minneapolis, 120 N.W.2d 871, 877=78 (Minn. 1963) . Presumably a document qualifying as a "record of arrest" would meet all or some of the indicia of "arrest data" as defined in the Government Data Practices Act, Minn. Stat. 1986 , section 13 . �12 , subd . 2. Exhibit 5 does not fit the characteristics of an arrest report. T.D.M. insists that she did not provide any identification at the time she was hired. Tr. ldl. No identification was taken from her at the tim e of arrest other than the UnBank card. 11 Rogers, tr . 138. Nancy Osterman testified , tr . 243 , that T.D.M. provided a birth certificate which was in turn shown to David Fan. Osterman has a definite motive for testifying falsely, whereas T.D.M. has no such reason. Osterman' s memory, while definite on the fact of a birth certificate , is vague and shaky on details. Tr. 243. Two points can be made. First , how you evaluate someone' s age is more than just physical characteristics. It also involves a level of maturity, speech, mannerisms and other assessments beyond physical development. The girl, T.D.M., who testified at the hearing , was clearly a person who was not mature in many ways. A reasonable person, being told she was 18, would inquire further and dem and proof. Please note that at the audition T.D.M. was fully clothed. Tr. 9�. Osterman's testimony that T.D.M. was physically well=developed , tr. 257, is self�serving , and does not mitigate the duty to inquire. T.D.M. as a witness was clearly a person you would want to ask more about if she said she was 18 years old , and you were hiring her as a nude dancer in a bar . Second , even if the fact=finder fairly believes T.D.M. appeared to be 18 years old and no reasonable person would inquire further , the policy of the state law in Minnesota is to place the b urden of absolute liability on the prospective employer , to refrain from doing certain things with respect to teenagers under 18. In order to drink in a bar , the statute requires either a Minnesota driver's license or Minnesota picture identification, or a passport. Minn. Stat. 1986 , section 340A. 503 , subd. 6. For the much more serious matter of hiring someone to do sexual performances before m en in a bar , David Fan required neither. The burden is on him. Cities are entitled to ask more of those who seek to be licensed to sell liquor. David Fan' s action was misconduct , and irresponsible. Even after the initial hearing , T.D.M. worked for two to three months, sometimes making $50 a night in tips pushed through the glass wall , tr . 97 -98 , and T. D. M. never obtained any identification other than the UnBank card. Tr. 89. Pape and Weinhandl testified , and falsely so , that they carded T.D.M. every time she danced. Pape, tr. 202 =2P13; Weinhandl , tr. 232. Osterman contradicted their testimony, saying that the policy of repeated carding was started after T.D.M, was arrested . Osterman , tr . 248. The "repeated carding" policy is another example of a change made after they had been "found out" and does not show sincere reformation. The patently sham transfer of Dancing Angels from Fan to Osterman after the T.D.M. incident notwithstanding, Fan still calls the shots on the dancers and has 12 °.�`. t,r,�. .' , k�~``�' ��' '�`,�.;�` � the power to do so , however infrequently exercised. Osterman , tr. 250-252, 255. Counsel for the Belmont Club raised the issue of another minor dancing in the bar by eliciting testimony from Officer Meyer about another underage girl being so employed. Meyer , tr. 78 '-79. This shows that the T.D.M. matter was not an isolated incident, and it also shows that when the 16 year old was arrested by the police , she did not have any form of identification. Meyer , tr . 79. F. Employee Misconduct Counts 1 and 2 of the Notice of Hearing allege as follows : 1. The unla wful sale of drugs in the parking lot of the licensed premises by an em ployee of the licensee on or about November 10, 1987. 2. Interference with police officers in the performance of their assignment by an employee of the licensee on or about January 23, 1988. Pursuant to section 409.08 (5) of the Code "(e) very 1 icensee is hereby made responsible for the conduct of his place of business and required to maintain order and sobriety in such place of business." In so doing actions of em ployees are im puted to the l icenseholder. See section 4�19.14 of the Code; and Sabes v . City of Minneapolis, 12P1 N.W.2d 871 , 878 (Minn. 1963 ) . The above actions in counts 1 and 2 create a danger to the public health, safety and welfare, section 310.06 (7) of the Code, and a violation of laws having a reasonable relationship to the 1 icensed activity, section 310. 06 (6 ) of the Code. Count 2 was amended by stipulation, tr. 74J, to January 14, 1988 , to conform to the facts submitted. Meyer , tr . 65. The conduct by the employee of the licensee constituted an intentional interference with a police officer in the perform ance of his official duties, in violation of Minn. Stat. 1986, section 609.50. While an apology was made after the fact, the em ployee's apology was less than full , Meyer , tr . 75 ; and the action potentially resulted in prostitutes and/or customers escaping detection and arrest. That action, together with the drug offense in Count 1 , neither of which appear to be challenged by the licensee , show an attitude or outlook on the part of em ployees which could only 13 have come from management. David Fan , clearly the boss , by his own statements sets the policies and tenor of the Belmont Club. Such policies until very recently were lax and in disregard of his duty to avoid hiring underage dancers, to clean prostitution out of his bar and parking lot, and to cooperate with law en forcement of f icers. The action in Count 2 also shows an awareness by the bouncers (or doormen) of what was in fact occurring in the parking lot, contrary to the testimonial assertions of other employees at the hearing who knew of no problems in the parking lot. See e.g. Baker , tr . 22PJ. The action in Count 2 also shows a certain degree of "territorial control" over the parking lot and alley in back, which reinforces David Fan' s admission of responsibility over it. Fan, tr. 281 . G. 5ummary The evidence fully justifies a finding of sufficient grounds for revocation of all licenses covering the premises where intoxicating liquor can be sold . Revocation also should include a finding of denial of the licensee' s application for 1 icense renewal. If revocation is not recomm ended, a lengthy suspension of 60 days should be coupled with the recommendation that the Council im pose conditions on the future conduct of the licensed business. These conditions should include: 1. Mandatory parking lot attendants from noon to closing every day the bar is open, whose job shall be to discourage solicitation for prostitution in and near the parking lot. 2. Mandatory provision of the nam e and identification information for all dancers to the License Division . 3. Mandatorycontractual provisions in any contract, oral or written, by the licensee with any person or firm supplying dancers requiring com pliance by that firm with condition 2 above. 4. The elimination of any openings or apertures in the glass wall separating the licensed premises from the dancers. 5. Requirement for David Fan to personally participate in a neighborhood task force or committee to discuss problems relating to prostitution, litter , busloads of 14 patrons and noise suffered by the neighborhood and to recommend solutions by appropriate bar management policies. The question of whether it would be desirable or proper to impose any sanctions on the licenseholder , given his recent efforts to address (or at least, to seem to address) the problems in his bar was discussed above in the paragraphs relating to prostitution. To give this licenseholder a slap on the wrist no w would send the wrong message to all other 1 icen�eholders and set a very bad precedent - that one can avoid sanctions by engaging in a flurry of ineetings and other efforts whenever you judge that the city has lost patience with your recalcitrance and has started revocation proceedings. One should not have to ask licenseholders to follow the law. Failure to follow the law, failure to police problems should subject them to proper penalties as authorized by law. The most effective enforcement of laws and regulations in bars can only be done by the licensees themselves, who know their responsibility and exercise. An attitude that is casual to violations and that shirks responsibility until forced to do it, makes license regulation very difficult indeed. The sincerity of those who have that attitude, and make a dramatic change after enforcem ent is started by the City, is questionable. The Respondent and its employees are in that questionable category. Respectfully submitted this �Y'�1. day of June, 1988 . � � y� Philip B. Byrne Assistant City Attorney Attorney for City of Saint Paul = License Inspec tor 647 City Hall Saint Paul , Minnesota 5510�2 (612) 298-5121 Attny. Reg . No . 13961 15 t • t � ' ._LICENSFS 4 310.U1 SUBTITLE A. IN GENERAL Legisia.tive Code Chapter 310. Uniform License Procedures Class I Licenses Chapter AutoTnobile Repair Garage and Sec. 310AI. Defiaitions. Body Shop 315 Animal Foods Manufacturing and For the purpo�es of this chapter, any�chapter of Distributing 316 the Legislative Code pertaining to licenses as here• Amusement Rides 317 inP.ft.er mentioned, and subsequently enacted ordi- Mechanical Amusement Devices 318 nances establishing or relating to the requirements Bill Posters 319 for Class I, CIZSS II and Class ilI licenses under Bituminous Contrac'tors 320 authority of the City of Saint Paul, the tierms go�ding and Roominghouses; defined in this section shall'have the meanings Dormitories 321 � a�cribed to them: Bowling Al)eys; Poo) Halls 322 Christmas T1-ee Sales 323 Ad�erse action means the rertocation or suspen- Cigarettes 324 � sion of a license, the imposition of conditions upon Close-Out Sales 325 a license, the denial of an application for the grant, guilding Contractors ?26 issuance, rene�•al or transfer of a license, and Dry Cleaning and Dry Dyeing . ar,y other disciplin�� or unfavorab)e action taken p�ants; Laundries � ��27 ��ith respect to a license, licensee or applicant for E)ectrical and Appliance Repair ��28 . a ]icense. Fire Alarm—Telephone De�•ices; Bond me2ns a bond meeting the requirements APParatus Installers ?29 of Section 3i0.07 and indemr}if�•ing the City of F1'orists 330 ' Sair,t Psul atainst all claims,judgr.�ents or suits Food License 331' caused b�•. resulting from or in connection with Fuel Dealers—Liquid Fuel .�32 , . FueJ Dealers—Solid Fuel :i33 an�• licensed business, acti��it}, premises, thing, F,umigating—Pest Control ' 334 — facilit�•, occurrence or otherwise under these Gasoline Filling 5tations :i35 .' chapters. Private Fuel Pumps . 336 Building o��cidl means the supervisor of code �—Hardware Stores 33i enforcerr,ent in the department of community House Sewer Contractors 338 Ice Cream Processing and Distrib• , services. . uting �3Q Chapters and these chapters shall mean this Mercantile Broker 340 - Uni.`orm License Ordinance, any chapter of the Milk 341 , Legis)ati��e Code �ertaining to licenses as here- ��1—Bu1k Storage 342• inafi.er :nentioned, aT,d subsequently enacted ordi• Opticians . 343 nances establishing or relating to the requirements Pa�tn Shops 344 for Class I, Class II and Class III licenses under Peddlers 3�$ . authorit�• of the City of Saint Paul. Soliciting 346 Pet �hops 347 Cla.cs 1 licenses means those licenses which can Radio and Television Repairs 348 be approved and issued or denied by the i*�spec• Renial of C)othing . _ 349 tor, subject to the procedures required by these Rental of Hospita] Equipment 350 chapters. The following licenses are so classified, Rental of Kitchenv�are 351 ar.d the numbers shown opposite them correspond Rental of Trailers 3�2 to the chapters in the Legis)ative Code pertaining Rol]er Rinks 353 to each license: Sanitary' Disposal 354 • 2027 �310.01 , ' LEGISLA�YE CODE `-�-- . _ • � i' Secondhand Dealers 355 Dance HaILs . 405 Sidewalk Contractors 356 Game R.00ms 406 Solid Waste 357 Hotel e�07 Sign and Billboard Construction 358 Junk Salvage and Scrap �g� Sound 'I�-ucks and Broadcasting Intoxicating Liquor 409 Vehicles 359 Noaintozicating Liquor , 410 Public Sw-im.ming Pools 360 Entertainment ' 411 ToR 'I�-ucks—Service Vehicles 36I � Massage Parlors and Saunas 412 �"� ��nB 362 Conversion Parlors 413 Vending Machines 363 Masseus-Masseuse 414 Veterinary Hospital 364 Motion Picture Theatres 415 Window Cleaaing 365 . Motion Picture DrivE-In Theatres 416 Block Parties 366 Parking Lots � 41? Tattoo Parlors 367 • Taxicabs 418 �'Vrecking of Buildings 368 Gambling License 419 Building T�-ades Business Licenses 369 Building Trades Certificates of� Director means the director of the department ,� Competency 370 of finance and management services, unless oth- Finishing Shop 371 erwise defined in the spec�c chapter, section or T�re Recapping Plants 372 subdivision referred to. � 'I�ansient Merchants 373 Division means the division of Iicense and per- Class 11 luenses means those licenses which mit administration in the department of finance must be approved or denied by the director, sut� and management services. / � - ject to the procedures required by-these chapters. l 'The follox-ing licenses are so clzssi�ed, and the Fee mezns and includes both the license fee .- _ �- numbers shown opposite them correspond to the a.nd appl:'cation fee unless otherwise provided. chapters in the Legisiative Code perta.ining to each license: License means and includes all licensea and , � permits provided for or covered by these chapters. Legislative Code Person means and includes any person, firm, C1ass 11 Licenses Chapter eorporation, partnership, eompany, organization, Auctioneers—Short TerrD License 390 agency, club or gny group or association thereof. Soliciting Funds—Tag Days 391 It shall also�include any executor, administrator, • trustee, receiver or other representative appointed 'Class III licenses means those licenses which by lav��. can be approved or denied only by the council, subject to the procedures required by these chap- Zoning administrator means the supervisor of . . ters. The follo��ng licenses sre so class�ed, and code enforcement in the department of commu. the niunbers show-n opposite them correspond to nity services, or the of�'icial charged with respon- the chapters in the Legislative Code pertaining ta sibility for enforcement of the zoning code. . • each license: � (Code 1956, §S10.OI; Ord.No. 17303, § 3, 10-29$5) Legislatiue . � Code �c. 310.02. Application. Class III Licenses Chapter (a) Form All applicants for licenses or permits Auctiuneers 400 issued pursuant to these chapters shall make both ;�'Iotor Vehicle and Parts Dealer 401 original and renewal applications to the inspector Bingo 402 on such forms as are provided by the division. Bingo Halls 403 Such applications shall not be received by the / Privat.e Clubs 404 inspector until campletely filled out, accompanied '� 2028 • � LICENSES 4 810.02 by all lees, insurance policies, bonds, deposits, in the business; age; address; description or blue- sureties, and indemn�cations or certificates re- print of the premises,if any,and the owner thereof, quired by these chapters, together with the certi- and locations and addresses of other business la fication required in paragraph (b)below. cations in Minnesota.. (b) Tazes. 1`o person shall be granted a license, (d) No reapplication �vithin one year after de- a renewal of a license or transfer of a license nial or reuocation. No person may apply for a.n3� required by the Saint Paul Leg-islative Code ua- license within one year of the denial or revoca- ]ess, prior to a.nd in addition to any other require- tion of the same or similar license by the city ments, ru)es or ordinances heretofore or bereafter council, if such denial or zevocation was based required, the Ram_sey County Department of Prop- solely or partially upon misconduct or unfitness erty Taxation certifies that said applicant has of the applicant, evidence of violations of law in- paid any and alI taxes, real or personal, before �olving licensed premises, evidence that the ap- said taxes become delinquent, on any property, plicant had been involved in the operation of a real or personal,situated witihin the City of Saint nuisance, or fraud or deception in the license ap• Paul and used in connection �-ith the business plication. Denial of a license, as used in this para- operated under said license. � graph, shall include a refusal of permission to 'a transfer a license to the applicant. A license is I�'otu•ithstanding the previous paragraph, the "similar," within the meaning of this paragraph, council, the director or the inspector may issue, if the basis upon which the revocation or denial of rene�• or transfer a license if it is found that: the original license was made would have been a relevant basis on which to deny or revoke a li- (1) The applicant has made an agreement sat- cense of the type subsequently applied for. � . isfactory to the Ramsey County attorney to � pay delinquent t,axes in period.ic installments; (e) Reapplication after denia.l; "interest" of ajr � plicnnt in reuoked license. An application br a (2) The applicant has proper)y commenced a person having an interest in, or whose sharehold- . proceeding to contest the amount of tax ers or off'icers have an interest in, any premises due or the valuation of his property, and or enterorise whose license has been revoked•or has made all pa�-t;al payments required by � which a license has been denied shall be treated ..- law• in connection ��th such proceeding; or as an application by the person whose license v�as . t3) The business property v�*ith respect to which denied or revoked. The term "interest," as used � t�:es are delinquent is not ow•ned by the �� this paragraph, includes any pecuniary• inter- applicant, but by a lessor, and it would be est in the ov��nership, operation, management or inequitable to require the lessee to pay sucb profits of an establishment, but does not include: . taxes. . bona fide )oans; bona fide renta] agreements; bona fide open accounts or otl�er obligations held ��ith If a license is issued, renewed or transferred be- or without security arising out of the ordinary � cause of the existence of a.n agreement as described and regular course of bizsiness of selling er leas- in subsection (1) above, the license may be re- ing merchandise, fixtures or supplies to such es- voked if the licensee defaults upon such agreement. tablishment; an interest in a corporation owning or operating a hote] but having at least one hun- , (c? Additional in�ormation. The inspector shall �ed fifty (150) or more rental units holding a prescribe the information required to be submit- license in conjunction therewith; or ten (10) per- ted by each applicant in his application, in addi- cent or less interest in a�y other corporat;on hold- tion to that required by specific sections in these ing a license. chapters, as may be necessary to carry out and - enforce any provision hereunder. He shall require (� Prohibition on reapplication; exception. The in even� case the applicant to submit his name; prohibition on reapplication herein provided shall business or corporate name; names of partners, not apply in cases where it is otherwise expressly o�cers,directors,shareho)ders or trustees involved provided by statute or ordinance. 2029 � . . : ��i�a� 4 310.02 '� LEGL<;I,qT7YE CODE �. �..�_; , _ . . � ; (g) k'aiting period after filing of petition Any department of fire and safety services and to the petition required to be filed with the application building official for investigation and recom• for any license shall not be considered as o$ic- mendation. iall�• filed and irrevocable until seven (?)working (Code 1956, § 510.03; Ord. No. 17361, § 1, 6-5$g) days after a petition is received in the inspector's office. During the seven-day waiting period, any Sec. 314.U4. Levels of approval;recommenda. signator of any petition may x-ithdraw his aame tions. � therefrom by written request, and such request shall be appended to the subject petition and made �a� CZass I licenses. Where an application fur a part thereoL Aft.er the seven-day waiting peri- the grant,issuance,renewal or transfer of a Class od, signatures may�not be withdrawn unless it is I license meets all the requirements of law, ana shown they were obtained by fraud or duress. �ere exists no ground for denial, revocation or Signatures v�•ithdrawn or obtained by fraud or • S��on of, or the imposition of coaditions upon, duress shall not be counted in determining the �ch license,the inspector shall grant,issue,renew . sufficiency of the petition. This subdivisioa shall or transfer said license in accordance with the apply in any case �•here the applicant for a li- aPPlication. cense or license transfer must pre5ent a state- (b) Class II licenses. Where an application for ' ment in wTiting signed by a specified number or the grant, issuance, renewal or transfer of a Class � percentage of persons that they have g-iven their II license meets all the requirements of law, a�d consent to the grar►t of the lioerLCe or license transfer, there exists no ground for d�nial, revocation or (Code 19�6, § 510.02) suspension of, or the imposition of conditions upon, such license, the director shall require the inspec- . Sec. 310.03. Lnvestigation and review of new tor to grant, issue, renew or transfer said license applications, etc. in accordance wit:� the application. . � The inspecLor sh2U determine the sufficiency (c) Class 1 and Class 11 licenses, if denied by .- and accuracy of each new app)ication and obtain inspector or director. In the event the inspector, . such criminal history information as may be used in the case of Class I licenses, or the director, in under ASinnesota Statutes, Chapter 364, and is the case of Clsss II licenses, determines that the — other.�•ise a�•ailab)e b�• la��. The inspector shall application for grant, issuance, renewal or trans- make reasonable and appropriate investigation fer of the license does not meet all the reouire- of the premises or personal property, vehicles or ments.q�']aw'or that there exist grounds for deni- facilities, as may be involved ir. or related to the al, revocation, suspension or other adverse action licensed acti.•ity, and shall request, where appro- against the license or the licensee, the inspect,or priate, the assistance of other city di�ZSions or or director shall recommend denial of the applica- departments in making additional investigations tion and follow the procedures for notice and hear- for the purpose of determining whether the appli- ing as set forth in Section 310.05. cant is or wzll be in compliance with all applica- , ble ordinances and statutes. The approval of such �d) Class III licenses. Upon receipt of a fully • other di�zsions or departments is not required for COmP�eted application and required fees for a Class issuance of a Iicense unless otherwise required by � license, and after�the investigation required, , specific sections in these chapters. All new appli- the inspector shall notify the council. A pub]ic � cations shall be reviewed by the zoning adninis- hearing shall be h�]d by the council on the grant, irator or his designee for compliance with all re- �ssuance or transfer of a11 Class III Iicenses. The quirements of the Saint Paul Zoning Code, and council may hold a hearing on the rsnewaI of any no new license shall be granted without full com- Class III license. In any case where the inspector pliance with said requirements. AJl new� applica• recommends denial of the grant, issuance, renewal tions invo)ving a premises, lo;,ation, bui)ding or or transfer of a Class III license, or where the • structure shall be referred to the director of the council believes that evidence might be received . at the public hearing which might result in ac• � - tion adverse to the applicat=on, the inspector or � • 2030 , LICENSES �810.05 council shall follow the procedures for notice and (b) Notice In each such case where adverse ac• hearing as set forth in Section 310.05. Where the tion is or will be considered b5� the council, the application for the grant, issuance, renewal or council shall in R�riting notify tbe applicant or transfer of a Class III license meets all the re- licensee that adverse action nay be taken against quirement�of law,and where there e�.ists no gr�und the license or application, and that he is eatitled for adverse action, tbe council shal] by resolution to a hearing before the council. The notice shall direct that the inspector issue said license in ac- be served or mailed a reasonable time before the cordance with laa�. hearing date, and shall state the place, date and (e) Appeal,• Class 1 or Class II licenses: An ap- time of the hearing. The notice shall state the peal to the city council mas� be taken by any issues involved or grounds upon a�hich the ad- rson a ieved b the verse action may be sought or based. The council pe ggr y grant, issuance, renewal may request that such written notice be preparec} or transfer of a Class I or Class II license; provid• �d served or mailed by the inspector or by the ed,bowever,that the appeal shall have been filed city attorney. v��ith the city clerb within ihirty (30) days after ' , the action by the license inspector or director. (c) Hearircg. The hearing shall be he�d by the The only grounds foz appea] shall be that there council, which shall a8'ord the applicant or the , has been an error of law in t�i'e grant, issuance, licensee an opportunity to present e�-idence aad rene�•al or transfer of the license. The appeal argument as well as meet adverse testimony or shall be in writing and shall set fortb in particu- evidence by reasonable cross-examination and re- lar the alleged errors of law. The council shall buttal e�-idence. The council may in its discretion conduct a hearing on the appeal within thirty(30) permit other interested persons the opportunity dar� of t},e date of filing and shall notify the to present testimony or e��dence or otherwise par- � , licensee and the appellant at least ten (10) days ticipate in such hearing. prior to the hearing date. The procedures set forth (d? Licensee or applicani may be represented in Section 314.05, insofar a:s is practicable, shall �e licensee or applicant may represent himself. app)�- to this ?�eazing. Follo�-ing the heazing, the or choose to be represented by aaother. council ma�• �Zirm or remand the matter to the • � inspec�.or or director, or may reverse or place con- (e) Record; evidence The council shall receive ditions upon the license based on the council's and keep a record of such proceed.ings, including determination that the decision ��as based on an testimony arrd exhibits, and shall receive and give �' error of law. The filing of an appeal shall not stay weight �.o�evidence, inc)uding bearsay e��idence, tbe issuance of the license. �which possesses probative va]ue commonly accepted (Code 19�5, § 510.44; Ord. No. 174b5, § 1, 5-21-87) by reasonable and prudent persons in the conduct of their affairs. � Sec. 310.05.• Hearing procedures. (� Council o.ction; resoluti.on to contai.n findings (a) Aduerse action; notice and hearing require- V�'here the council takes adverse action with re- � ments. In any case where the council may or in- spect ta a license, licensee or applicant.for, a li- tends to consider any adverse action, including ce�ce, tbe resolution by K�hich such action is�taken the revocation or suspension of a license, tbe im- shall contzin `its findings a.nd determination, in- position of conditions upon a license,or the denial cluding the imposition of conditions, if any, . of an application for the grant, issuance, renewal or transfer of a license, the applicant or licensee �� A�'x''°nal procedures wh.ere required Where the provisions of any statute or ordinance require shall be given notice and an opportunity to be additiona] notice or hearing procedures, such pro- heard as provided herein. The•council may con- �sions shall be complied with and shall super- sider such adverse actions when recommended by �e inconsistent pro�zsions of these chapters.This the inspector, by the director, by the director of shall include, without limitation by reason of this any executive department established pursuant to Chapter 9 of the Charter, by the city attorney specific reference, Minnesota Statutes, Chapter or on its o�•n initiative. 364, and Minnesota Statutes, Section 340A.415. Supp.No. 1 .. 2031 . . ' � _�.ICE2�SES 4 310.07 - ,,,,�-_ . _ • . � — - required to engage in a licensed activity, business or profession. � (Code 1956, � 510.06) Sec. 310.07. Teraunation of licenses; surety bonds; insurance contracts. (a) A utomatic termination, reinstatement; re- sponsibility of li�oensee All iicenses or permits which must,by tbe provisions of tbese chapters or other ordinances or laws, be accompaaied by the filing and maintena.nce of insurance policies, deposits, guara.ntees, bon�s or certifications shall automati• ' cally terminate on cancellation or withdrawal of � said policies, deposits, bonds or cert�cations. No licensee ma}• continue to operate or perform the licensed activity after such te�mination. The li• , censee is liable and responsib)e for the filing and , maintenance of such policies, deposits, guarantees, bonds or certifications as are requi.red in these chapters, and shall not be entitled to assert the � acts or omissions of agents, brokers, employees, . attorneys or an�� otber persons as a defense or justification for failure to comply u-ith such filing and maintenance requirea�nts. In the event the ' licensee :einstates and files such policies, depos• its, bonds or certifications��ithin thirty (30)days, � � � Supp.No. 1 . 2032.1 ' 4 310.05 I.£GLSLATNE CODE �— , , ' ' . �. (1� Discretwn to hear no�vuhstar,.dirag ivithdraival cordance a-ith the procedures outlined in Section or surrender of applicaxion. or Zicense The couacil 310.05. may, at its discretion, conduct a hearing regard- �� Basis for nction Such adverse action may ing revocation or denial of a license notwit�stand- be based on one or more of the following reasons, ing that the applicant or licensee has attempted o,,�ch are in addition to any other reason specifi- or purported to u-ithdraw or surrender said lice��e �ly provided by law or in these chapters: or application, if the attempted Rzthdrawal or surrender took place after the applicant or l�cen- (1) Tbe license or permit was procured by mis- see had been notified of the hearing and potential representa.tion of material facts, by fraud, adverse action. bp deceit or by bad faith. (i) Contin:..a.nces. Where a hearing for the pur- (2) The applicant or one acting in his behalf pose of considering revocation or suspension of a, made oral or written misstatements or mis. licen.se or other disciplinary action involving a � representations of materisl facts in or ac- license has been scheduled before the council, a companying the application. � rontinuation �f the hearing may be granted at �3) The license was issued in violation of any the request af the licensee, license applicant, an interested person or an attorney repr�senting the of the provisions of the Saint Paul Zoning ' foregoing, on)y as pro��ided herein: Code. (1) Where the request is made at least twenty- �4) The license or permit v��as issued ia aiola- four (24)hours prior to the scheduJed hear- tion of law, v��itbout a�thority, or under a ing, the president of the council or the coun- material mistake of fatt. . cil ma}• continue the hearing upon a show• (5) The licensee or applicant has failed to com- � ing of good cause by the party making the ply with any condition set forth in the li- �` request. �. ' cerise, or set forth in the resolution grant- � (2) �'4'here the request is made less than twenty- ing or renea�ing the license. - four (24)hours before,but not on the day of (6) The licensee or applicant has ��olated an�� ' the scheduled hearing, the council ma3� con- of the provisions of these chapi.ers, or of tinue the hearing upon a showing of good any statute, ordinance or regulation rea- � cause b�• the party making the request. sonably related to the licensed activity, re- _� (3) �'�'l�ere the request is made on the day said g�dless of whether criminal charges have hearing is scheduled, the c�uncil may grant or have not been brought in connection there��ith. a continuance on the condition that the • . . party requesting the continuance pay to (7) The acti�:ties of the licensee in the licensed the City of S�int Paul the city's actual costs activity create or have created a cerious for the court reporter and w�tnesses who danger to the public health, safety or wel- - appeared for the hearing, or one hundred fare, or the licensee performs or has per- . dollars (S100.00), whichever is the lesser. formed his work or activity in an unsafe� (Code 19�6, � 510.05) manner. � (8) Failure to keep sidewalks or pedestxian wa35 , ' Sec. 310.06. Rerocation; suspension; adverse reasonably free of snow and ice as required under C�apter 114 of the Saint Paul Legis- actions. lative Code. !a) Co�ncil moy take aduerse action. The coun- (9) The licensee or applicant has sbown by past cil is authorized to take adverse action against misconduct, unfair acts or dealings, or by any license or permit, licensee or applicant for a the frequent abuse of alcohol or other drugs, license, as pro�-ided in and by these chapters. Such that such licensee or applicant is not a per- . actions shall be initiated and carried ou't in'ac• son of the good moral character or fitness ( Supp.No.1 . . ` \ 2032 � , � ._IICENSES . 4 810.09 tbe license is automatically reinstated on the same (d) Expirati,on date to be concurrent with term terms and cor,ditions, and for the same period as of Iicense 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 license shall be concurrent with the e�iration date of as though it were an origina] application. the license or permit. (b) Bonds and insurancerequirements• (Code 1956, § 510.07) (1) Surety Companies: All surety bonds ru�- �c. 310.08. Terms of Iicenses;uniform datss, ning to the City of Saint Paul shall be writ- (a) All licenses or permits shall be valid for a ten by surety companies suthorized to do Period of one year from the dste of issuance by business in the State of Minnesota. All in- �e inspectqr, except as otherwise provided herein surance policies required by these cha.pters or in these chapters or in cases of revo�stion, shall be written by insurance companies suspension or Lermination under Section 310.06. authorized to do business in the State of (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: A'ld bonds filed with spector on or before the expiration date the ap- � the City of Saint Paul in connection with propriste license application, license fees, insur- � the issuance of Iicenses for whatever pur• ance and bonds. The inspector shall process the � pose, and all policies of insurance required renewa] application in the manner provided i'or to be f Ied �-ith or by the City of Saint Pau] in this Code. in connection �•ith the issuance of licenses �c) V�Thenever any licensee is the holder of the tor an�� purpose w•hatscever, shall first be two (2) or more )icenses of the Gity of Saint Paul appro��ed as to form by the city attorney. �,hich expire on different dates, the inspectoT is (31 liniform Endorsement: £ach insurance pol- authorized, at the request of the licensee, to de-., ic}• required to be filed pursuant to these termine a uniform date for the ekpiration of all or chapters sh�ll contain the endorsement set any number of such licenses,notwithst.anding the � , forth in ChZpter 7 of the Saint Paul Legis• term and ex-piration dates of sucb licenses as origi• : lative Code. nall�� issued, and notx�ithstasd=ng any pro«sion as to term of license of an}> ordinance of the city �4) Conciitions: All bonds required by these cha� heretofore�:or hereafter enacted. The provisions �. ters shall be conditioned that the licensee �hereof shall govern the issuance of any new li- shall observe all ordinances and laws in cense to one already ho]ding a license. re)ation to the licensed activity, business, (d) in order to conform to the foregoing provi- . . premises.or facilities.and that he sball 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 formit�� therewith. Such bonds shall also shall be prorated for the period of issuance. indemnif}� the City of Saint Paul against (Code 1956, � 510.08; Ord. No. 17360, § 1, 6•5-86) ali claims, judgments or suits caused by, resulting from or in connection with the �c. 310.09. Fees. , licensed business, premises, activity, Lhing, (E) Application charge facility, occurrence or otherwise licensed , 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 required Code, each appticant shall pay, at the time by.ciry. Termination of bonds and insurance re- of filing, a two dollar fifty cent ($2.50)pra quired w be filed with the city pursuant to these cessing charge for each and every applica- chapters shall be in accordanee ��th the require• tion for a license or permit to be issued by mEnts oi Chapter S of the Saint Paul Legislative the inspector, director or council of the Ci�y Code. of Saint Paul. • 2033 . � 310.09 . L.EGISLA3�vE COD£ - (2) Refunds: Said two dollar fifty ceat ($2.50) met when the Iicense has lapsed by reason of processing charge shall not, under any cir- expiration. cumstances, be refunded. (Code 1956, § b10.09; Ord. No. 16884, 2•11-82) (b) Fee schedule. T'he council may by ordinance ��, 310.10. R.efunds of fees. deLermine and establish one fee schedule for any or all licenses and permits issued pursuant to (a) Refund where application withdro.wn or de. these chapters, and a separate fee schedule for n�d' ser�ice cha,rge Un}ess otherwise spec�cally applications for such licenses and permits, wluch provided by .the particulaz licensing provisions may include fees to cover costs incurred by reason invo)ved, where an application for any license is of tbe late filing. Such fees, in either schedule, withdrawn or denied, the inspector shall refund shall be reasonably related to the costs of admin- to the applicant the license.fee submitted less a istration incurred in connection with each such•. �� harge to recover in part the costs incurred application, license or permit. Costs of adminis- in processing the application in the amount of . tration shall mean and include, but w�ithout limi- twenty-five (25)percent of the annua] license fee. , tation by this specification, both direct and indi- rect costs and expenses, such as saLaries, wages, �� Limit.ation on refund; othzr cases. In all other , benefits and all personnel costs including train- �ses as provided in paragraph (c), the inspector ing, seminars and schooling, expenses of investi- may 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, te)ephone and communi- license, permit ar application therefor; provided, cations, stationen•, postage, paper, reproduction, that he certify in writing that the amount of the o�ice czpital equipment and al] office supplies. refund represents a sum over and abo��e the rea- �Such tee schedules as adopted by ordinance and sonab)e costs of administration incurred up to posted in the office of the inspecj.or shall super- that time.in connection �•ith said license, permit ( sede inconsistent fee proLisions in these chapters or application. The director m2y refund not to �. or in other ordinances or laws. . exceed two hundred fif;.y dollars (S2b0.00)of such � " fees upon a like certification by the inspector. ' � (c) Fee for one year; mey be prorated Unless The council mar by resolution authori2e all re• _ otherv�-i_�e specifical)�� pro�-ided,the licer�ce fee stated funds upon a like certi!"ication by the inspector. is for a period of one year. Such fee may be pr�- (c) Bases for refunds. Refunds under paragraph � rated �•here a license is issued for a period of less (b) ma,y=be made to the licensee or his estate: than a �•ear. (1) VVhPre the place of business of the licensee (d) Late fee lin)ess otherwise spec�cally pro- or his principal equipment is destroyed or � ��ided bv the partieular licensing provisions in- so damaged by f:re or any other cause that vol��ed, an applicai,t for the renew•al of a license the licensee cea.�es for the remainder of the �•ho makes application for such renewal after the licensed period to engage in the licensed expiration date of such Jicense shall be charged a activity or busine5s; � • late fee for each such license. The late fee shall be �2� V�r}iere the business or licensed activity ceases ir, 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 ]icensee or the sole employee or manager; tee for such license tor each thirty-day period or oT portion thereof ti�hich has elapsed after the expi- ration date of such Jicense. The ]ate fee shall not (3) Where it has become unlawful for the li- exceed fift�• (50)percent �f the annual license fee. censee to continue in the business or licensed If an�• pro.•ision ot 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 rene�•al, those requirements must be. (Code 1956, as amended, § 510.10) / `� 2034 � - �� - i�a � " � `-_ . "ucFxss .�sio.ii Sec. 310.11. T1-ansfers; general. tfl Transfer, defircition. "T�ansfer," as used in (a) License n priuilege, nos property. AI] Iicen- �ese chapters; shall include a transfer from per• ses or permits issued by the City of Saint Paul son to person, or from place to place, or a transf'er pursuant w these chapters or other ordiaances or of stock in a corporate licensee, or of shares or la�•s confer a rivile e on the licensee to en e interests in a partnership or other )egal entit��. in the activit por oc upation so licensed, an do ��'�fer," as used in these chapters, shall not not constitute property or property rights or cre- include the instance where a license is held by an ate any such rigbts in any licensee. No such li- individual or partnership and t�e transfer is by cense or permit may be seized, levied upon, at- said individual or partnership to a corporation in tached,executed upon,assessed or in any manner ��ch the majoriry of the stock is held by said taken for the purpose of satisfaction of any debt individual or by the members of said partnership. or obligation whatever. '. (g) Assignment and bond to accompany appli. (b) Licenses transferable; condixions. All licen- cation In the case of a transfer fr�om person to ses issued by the City of Saint Pau] shall be trans- ��0n, the application for transfer shall be ac- ferable unless the spec�c chapter of the Saint companied by a written assignment of all rights Paul Legis)ative Code pertaini��ig to each spec�c �f the original licensee in and to the license and . license shall specifically prohibit the transfer of shall be accomganied by a surety bond in amount • such license. No transfer of any C)ass III license $nd in form required of an original licensee. issued by the City of SainL Paul shall be effective (h) Public corporation�. Notv��ithstanding other unti] the council of the City of Saint Paul has provisions of this chapter, publicly owned corpo- spproved the transfer fol�owing a public hearing, rations ��hose stock is traded in the open market � and a reso)ution appro��ng said transfer is pas.sed, may comply w-ith the transfer requirements per- approved and published. Both the transferor and taining to stock ownership and stock transfer by transferee shal) make application for transfer of a furnishing the inspector on request w-it,h the names license on such forms as may be prescribed by the and addresses of all stockholders of record upon di�•ision, and in accordance wzth Section 310.02. each renewa] of the license. • � . (c) Trar.sje% tvz In all cases of transfer of a �� Affidavit of transferor. No license transf'er , license from a present licensee to any other per- shall be effective unless the;transferor submits � son, there shal) be a tax on said transfer in the an affidavit of such transferor, ta.ken under oath, amount of tu�enty-five (25) percent of the annual stating•the;follow•ing: . license fee charged for said ]icense, said tax to be (1). That in the case of Class III licenses, the paid by the transferee. . .transferor•�ant has posted notice to all ' , fd) Transjer t�• deposit,retained or returned employees in a conspicuous place on the Whenever an application is made for transfer of a licensed premises notifying all employees license, the amount as set out in paragraph (c) of the time,place and date of hearing of the shall be deposited �•ith said application. If the transfer of the license to be held befare the transfer of license is approved, the amount depos• Saint Paul City Council; ited shall be retained by the city. If the transfer is (2) That said notice specified in subparagraph , � denied, the amount deposit.ed shall be returned to (1) above ��as posted contiauously for four• the party depositing the same, in accordance with teen (14}days; � the requirements and conditions in Section 310.10. (3) That transferor has paid all wages due and (e) Transjer tux; exception Paragraphs (c) and owing the persons employed by the trans- (d;shall not apply in any case when, by the terms feror or that an agreement has been reached ot these chapters, payment of the full annual li-. between transferor and all employees as to censee fEe or a prorated yearly annual license fee the pa��ment of wages due and owing, is provided for on the part of the transferee before (4) That transferor has made payment to all any transfer of license is made effective by the employees in lieu of vacation time earned action of appro��ing the transfer. by said employees or in ]ieu thereof an • • 2035 � t 3I0.11 LEGLSLAT7VE CODE � agreement has been reached between trans- or other law shall at all times while open to tbe feror and all emp)oyees as to payment in public or while being used or occupied for any lieu of vacation time earned; purpose be open also to inspection and exami�s. (5) That transferor has satisfactorily and com- tion by any police, fire, or hea2tb officer or any pletely complied with his contractual obli• b��g�-�'0r of the city,as well as the inspector, gations pertaining to employer cantributions �Code 1956, § 510.12) to emp)oyee benefit programs which include, �c. 310.13. Renewal. but aze not limited to, pension prograais, hospital,medical and life insurance programs, Every license renewal u:nder these chapters ma,y profit-sharing programs and holiday pay � denied for any licensee who is delinquent in benefits. . any payment or contribution to a health and wel- faze trust or pension trust, or szmilaz program, (j) Deceased licensee Notwithstanding any other•. established for the benefit of his employees. provision of these chapters, in any case where a (Code 1956, § 510.13) liquor license is held by a person not incorporated . and where the license wou)d, by reason of the �c. 320.14. Savi.ngs clause. death of said licensee, )apse to the�city in the absence of this paragraph, the authorized repre- �a� � any provision in these chapters is he)d sentative of the estate of the deceased licensee unconstitutional or invalid by a court of compe- may consent to and seek to transfer said license �nt jurisdiction, the invalidity shall extend only to the sun�i�•ing spouse of the licensee. The trans• � the provision involved an� the remainder of � fer shall be subject to all applicable requirements �hese chapters shall remain in force and effect to . of these chapters and existing lax�. be construed as a whole. � (k) No a rounl ur� (b) 1 he repeal of any ordinance by this ordi- ( pp der certain conditions. The nance (��hich enacts the Uniform License Ordi- \, council shal) not approve any tra�sfer where ei- nance? shall not affect or impair any act done, . ther part�� has not cor.�plied with the'terms of any any rights vested or accrued, or any suit,proceed- contract or�agreement regarding employee bene- ing or prosecution had or commenced in any mat- fit or fringe benefit programs; including, but not te:, prior to the date this ordinance becarne effec- limited to, pension, ho�pitalization, medical and tive. Every such act done or right vested or accrued r life insurance, profit-sharing or holiday pay pro- shall remain in full force and effect to all intents g-rams; provided, that any person or organization and purposes as if the repealed ordinances had objecting to a transfer because of failure to pay themselves remained in force and e�ect. Every emp].oyee benefit or fringe benefit programs shall such suit,.�roceeding or prosecution may be con- file a M�ritten notice of objection ��ith the license tinued after repeal as though the repealed ordi- inspector seven (7) days prior to the schedu)ed nances were fully in e�ect. A suit, proceeding or public hearing on.tbe transfer, and said notice prosecution which is based upon an act done, a shall contain a compl�te it.emization of the objec- , right vested or accrued, or a violation cominittec� � tior s claim. prior to repeal of the repealed ordinances, but � � (1) Transjer of more than one license if one is which is commenced or instituted subsequent to Class 111. If an application is made to transfer repeal of the repealed ordinances, shall be brought , more than one license at the same time, the in- pursuant to and under the provisions of such re- � spector may, if one of the licenses is a Class III pea)ed ordinances as though they continued to be license,han�e a11 sa.id licenses as Class 17I licenses. in full force and effect. (Code 1956, � 510.11; Ord. No. 16822, 9•3-81) (Code 1956, § 5]0.14) Sec. 310.12. Inspection of prernises. Sec. 3I0.15. Penalty. The premises, facilities, place, device or any- Any person who violates any provision of these thing named in any license issued pursuant to chapters, or other ordinances or laws relating f,o j an�� provision of the Saint Paul Legislative Code licensing, or w�ho aids, advises, hires, counsels or � 2036 � , . _LICENSES 4 818.01 - � ,...-_ . coaspires with or otherwise procures another to Sec. 316.Q2. Fee. ' �-iolate any provision of these chapters or other • ordinances or lav�s relating to licensing is guilty Z'he fee required is forty-five dollars ($45.00). of a misdemeanor and may be sentenced in ac- (Code 1956, § 384.02) cordance v�•ith Section 1.05 of the Saint Paul Leg- islative Code. The term "person," in addition to Chapter 31i.A.musement Rides the definition in Section 310.01, shall for the pur- . pose of this section include the individual part- �c. 31i.01. License required. ners or membe;s of any partnership oi corpora- tion, and as to corporations,the officers,agents or No person shall engage in the business of pro- members thereof, who shall be responsible for the v�ding amusement rides,for charge, to the public violation. in Saint Paul without� license. (Code 1956, § 510.15) '. (Code 1956, § 411.01) � � . Sec. 310.16. License fees, annual iacreases. Sec. 317.Q2. Fee. Efiective on January 1 of e�ch calendar year, The fee required is one hundred dollars($100.00) . all license fees, except building trades business for each location at which such person will oper- °• license fee� and fees for building trades cert�- ate and maintain the business of providing such cates ot competency, shal] increase by the per- rides. centage increase in the budge±for the division of (Code 1956, � 411.02) license and permit administration of the depart- ment of finance and management services. Prior �8P�r 318. Mechanical Amusement Devices to I`'ovember 1 of each year, the director of fi- nance and management services shall file with �c. 318.01. License required; defiaitions. the cit.• clerk a notice of the percentage increase, . if an��, in license fees. No person shall own and allow to be operated (Ord. ?vo. 1688�, 2-11-82; Ord. No. 17059, 14-20-83; for business purposes any coin-operated mechani- � , Ord. I�'o. 17303, § 4, 10-29-85} cal amusement device witho�t a l�cense. A coin- � operated mechanical amusement device is hereby Chapters 3I1-314. R.eserved defined a�:any machine which,upon the insertion � .ef a coin, token or slug, operates oi m�y be oper- SUBTITLE B. CLASS I LICEI`'SES ated by the public for use a.s a game, entertain- ment. or amusement, which amusement device . contains no automatic payoff device for the re- • Chapter 315: Reserved• turn of money, coins, checks, tokens or merchan- dise, or which provides no such pay-off by any Chapter 316. A.n.imsl Faods other means or manner. The term "coin-operated Manufacturing and I?istributing mechanica] amusement device" shall include so- called pinball machines; music machines; coin- Sec. 316.01. License required. operated television units; motion picture machines; • ' smusement rides, excepting those provided for ho person shall engage in the business of the under Chapter 317, pertaining to amusement rides • manufacture or distribution of animal foods in of the tvpe used at carnivals; table shuffleboard Saint Paul without a license. games or similsr games of amusement for which (Code 1956, § 354.01) a fee is charged to players for the playing thereof; � and all other machines which, by the insertion of •Editor'e notie-7'he iicerues under chis chapur, derived a coin or token, operate for the entertainment or from �� 345.07-345.03 of the city's 1956 Code, Were redesig- natrd as Class IfI licenses by Ord.No. 17207,adopted Jan.31, ��ment of the player,except weighing machines. 1985,s�d rec«lified as Ch.423. (Code 1956, §§ 412.�1, 41`1.�`Z) 2037 �31b.02 LEGLSLATNE CODE ___ -_ . . � . Sec. 318.02. Fee. another; provided, however, that the owner shal] (a) A musemen.t rides. The fee required for li- notify tbe inspector in writing at least five (5) censes for coin-operated amusement rides shall days before the move to the new location, advis- be one hundred seventy-five dollars (5175.00) for ing him of the name and address of the new loca. ten (10) amusement ride machines or fewer, and tion; and, further provided, that in the event the fifteen dollars ($15.00) per machine for each amuse inspector not�es the owner that the intended ment ride machines in excess of ten dollars(510.00), ��t�on is not properly licensed if�.a license is • • required, is in violation of zoning, health, fire or (b) Music m.achines,• television. The fee required other codes,or is otherwise unlawfully existing or for licenses for music machines shall be twenty operated, then the ov�•ner shall not move any ma- five dollars (525.00) per machine; and for coin- chines to that location until the inspector advises operated television units shall be sixteen dol)ars that the illegality has been i-emoved. fS16.00) per location regardless of the number of�� (Code 19b6, § 412.03; Ord. No. 17134, 5-10-$4) machines per )ocation. ' � , (c) Other deuices. The fee required for licenses �c. 318.05. No refund upon revocation; con- !or all other coin-operated mechanical amusement fiseation of unlicensed maehines. de�•ices is se�•en hundred fifty dollats (S750.00), Upon revocation of a license provided for here- , together �+•ith an additiona) fee of fift}� dollars in, no refund shall be made of any portion of the (S�0.00) for each machine other than music ma• license fee. The inspector shall confiscate any ma. chines, coin-operated television units, or coin- chine set up for operation by the public if the .� operated an�usement rides o�•ned and operated same is not properly licensed or is operated by an b�•the licensee. owner or operator not licensed for said purpuse. -�Code 19�6, � S 12.03; Ord. No. 16iSY, 4•30-81; (Code 1956, § 412.03) Ord. :�o. 16�5:, 2•11•S2) � Sec. 318.06. Gambling prohibited. ' Sec. 318.03. Application. � I�'either any person licensed under these chap• . T'he applica�.ion sha11 include, in addition to ters nor any employee of any such licensee shall o:her required information, a list of the locations permit to be operated in any such licensee's place = �•here the applicant proposes to install znd oper• of business any such machine or device for the . ate such machines, the kind and number :hereof, making of side bets or gambling in any forrr,. and the address of the place where the machines (Code.1956, § 412.06) � are.to be sto:ed. All applications shall contain a G�oss refereace—Gambiing, Ch. 2�0; law�ful gambling,Ch. statement of the list price of such machines. 402• . , (Code ]9�6, § 412.03) . . Sec. 3I8.Oi. Loud music prohibited;hours of Sec. 3�8.Ud. L�cense tags;no transfer, removal, operation. (a) The licensee shall receive, in addition to the No licensee shall permit the operation of a music •• license, one annual license tag for each machine �achine upon his premises in such manner that he is )i:ensed t,a oK•n, �•hich tag shall be displayed the music is audible in adjoining premises to the upon the machine in a prominent place. Such disturbance of the residents of such premises be- license tags must be secured and �xed to the �N'een the hours of 10:00 p.m. and 1:00 a.m. on machines before machines are set up for opera• �'eekdays; provided, however, that the operation tion br the pub)ic. It shal) be the responsibility of of sucl: machines is permitted from 10:00 p.m. on licensee to obtain and affix such tags to said Saturdays unti) 2:00 a.m. on Sundays, and, fur- machines. ther, that no licensee shal] permit the operation of any music machine in any manner between the (b) \o )icense issued hereunder may be trans- hours of 1:00 a.m. and 9:00 a.m. on ��eekdays, nor ferred, but a machine with license tag aff"ixed on Sundays from 2:00 a.m. until 9:00 a.m. �' may be mo�•Ed by the o��ner from one location Lo (Code 1956, § 412.0?) l 2038 LICENSES $409.02 (11) No licensee shall receive any material for Sec. 409.02. Definitions. use in the licensed business from any per- son under the age of eighteen (18) years E1s used in this chapter, the following terms without the written consent of the parent shall have the meanings ascribed to them in this or guardian of such person, which shall be section: kept on file by_the licensee for at least one 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 reasanabla business purposes or for intellectual 'unprovement inspection at reasonable times by proper or promotion of sports which has more than fifty city officials as in the case of other licensed (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 not be adequate for the reasonable and comfortable ac- transferable. commoc}ation 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. Renewal, revocation and sus- 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 license has agents or employees are paid,directly or indirect- been issued hereunder may obtain renewal thereof ly, any compensation by way of profit from the by filing an application with the inspector indi- �gtribution or sale of beverages to the members cating any changes in the material submitted with of the club or to its guests beyond the amount of �,� the initial application. The inspector shall circu- such reasonable salary or wage as may be fixed ` larize the application to those officials who re- and voted each year by the directors or other �; view initial applications and the license shall 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 from the ment used only for off sale and on sale sales of � public demand a formal hearing be held. No ini- intoxicating liquor, except that, upon obtaining . tial licenses shall be granted hereunder for other proper state or city licenses for such sales,cigars, premises except in I-1,I-2 and I-3 Industrial Districts. cigarettes, all forms of tobacco and nonintoxicat- (b) The council may revoke, suspend or refuse ing malt beverages and soft drinks may also be to renew the license of any person hereunder for �ld :n said exclusive liquor store at retail; pro- . any violation of this or any other ordinance of the �ded,further,that such nonintoxicating malt bev- ' city,or of any statute or'regulation of the State 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 Liquor• ness cariying�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 liquor for con- Hotel shall mean an establishment with resi- ` sumption at any time or place in Saint Paul with- dent proprietor or mar.ager, where, for payment, out a license. food and lodging are regularly furnished to tran- (Code 1956, § 308.02) sients, and which maintains,for use of its guests, �Crosa references—For eneral no fewer than fifty(50)guest rooms with bedding g provieions pertaining to and other suitable and necessary furnishings in liquor and beer,see Title XXN;nonintoxicating malt liquor, Ch.410;use of beer and intoxicating liquor ia drive-in motion each room, and which has a main entrance with '�� picture thestres prohi�ited,�4�s.os(b). suita:ble lobby,desk and office for the registration • �171 � . . _ ��- i�a � §409.02 LEGISLATIVE CODE of guests on the ground floor and which employs Sec. 408.03. Number of licenses. an adequate staff to provide suitable and usual (a} On-sale licenses shall be issued only to ho- service, and which maintains, under the same �� clubs,restaurants and establishments for the management and control as the rest of the estab- $ale of on-sale liquors exclusively. lishment and as an integral part thereof,a dining room with appropriate facilities for seating not ro� �$ale licenses shall be granted subject to less than thirty(30)guests:at one time,where the the approval of the liquor control commissioner to general public is, in consideration of payment, Proprietors of drug stores, general food stores and served with meals at tables. exclusive liquor stores, and but one such license shall be issued for every five thousand (5,000) Intoxicating liquor or liquor shall mean and inhabitants in the city. include ethyl alcohol, and any distilled, ferment- (Code 1956, § 308.06; Ord. No. 17172, 10-23-84) . ed, spiritous, vinous or malt liquid of any kind potable as a beverage, which contains an alco- ��• `�•�• �ceptions. holic content in excess of three and twatenths This chapter shall not be construed to prohibit (32)percent thereof by weight or four(4j percent the sale of wine for sacramental purposes by any by volnme. person duly licensed by the state liquor control , Medicines shall mean and include only such commissioner so to do; nor shall this chapter be potable liquids as prescribed by licensed physi- 00n'strued t°Pr°h�bit the sale of inedicines as herein cians and dentists for therapeutic purposes and defined;nor of industrial alcohol designed for me- United States Pharmacopceia and National For- chanical, chemical, scient�c, pharmaceutical or mulary prepazations and preparations used for industrial purposes; nor to compounds or prepa- the mitigation of disease for external and inter- rations containing alcohol, if such compounds or nal purposes which are usuall"y sold in drug stores Preparations are not potable as a beverage; nor and intended for therapeutic purposes and not for shall it be construed to prohibit the sale of intoxi- beverage purposes. cating liquor for medicinal purposes by a duly licensed and registered pharmacist or druggist Off-sale shall mean the sale of liquor in origi- upon bona fide prescription, in writing, by a phy- nal packages in retail stores for consumption off sician or dentist. . or away from the premises where sold. (Code 1956, § 308.22) O.n-sale shall mean the sale of liquor by the Sec. 409.05. On- an es; term; glass for consumption on the premises only. fees. � Package or original package shall mean and (a) Term. All licenses for the sale of intoxicat- . • include any container or receptacle holding Iiquor, ing liquor shall be for a term of one year from the which container or receptacle is corked or sealed. date of issuance, renewal or transfer. The date shall be determined by the inspector and entered Person shall include individuals, corporations, upon the license. � partnerships and associations. (b) License fee� on-sal� semiannual i»stallments Restaurant shall mean an establishment other The license fee for an on sale license is hereby , than a hotel, under the control of a single propri• fixed as follows: • etor or manager,having appropriate facilities for ��1) Seating capacity over 200 . . . . . $3,000.00 �the serving of ineals for no fewer than fifty (50) �a guests at one time. � (2). Seating capacity over lOQ . . . . . 2,750.00 Sale and sell shall mean and include all barters G (3) Seating capacity 100 or less . . . . 2,500.00 and all manner or means of furnishing intoxicat- Said sum shall be paid in two (2)equal amounts, ing liquor or liquors in violation or evasion of the first to be paid before the license is issued or , �a�,, renewed, the second payment to be made within (Code 1956, § 308.01) six(6)months from the date of issuance or renewal. 2172 . ,......- .�.�, _,..,,,.,.. ,.<:,-�: :.,-�.,,.�...�.�...,..�.�.-�---�.,:�.,--� - - - _ - - ---..t__._. ..._...._ _,. __ _._. . _.__._____.--__ _ LICENSES �409.06 (c) On-sa.le license, replacement af�ter revocation. the liquor control commissioner of the State of If,for any reason,the on-sale license in this chap- Minnesota and shall file the same with the in- ter provided for is revoked by the council of the spector. Such application form shall require that City of Saint Paul, no replacement license shall the following information be set forth upon the be issued until the full license fee for the new application, and such further information as may license due for the remainder of the license year be required: is first paid; provided, however, that in no event shall a licensee pay less than the applicable an- (1) The name and place of residence of the nual license fee together with the applicable is- applicant. suance tax for a licen.se, or combination of licen- ses,during a license year. (2) The location of the premises upon which the applicant proposes to sell such liquor (d) Increase in on-sale license fe� notice to lv� �d an exact description, including the pro- censees. The license inspector is hereby directed po�d floor plan and seating capacity, of � to notify in writing via U.S. mail all on-sale li- �e p�icular place within the building struc- censees of the public hearing date for council con- ture where such sales are proposed. sideration of any amendments to this section in- • creasing the license fees. At said public hearing, �g� �ether the applicant has ever been en- the department of finance and management ser- gaged in a similar business and, if so, the vices shall present evidence to the council show- location thereof and the date when so en- ing the relationship between the proposed fee in- gaged. The application shall be signed and crease and the costs borne by the city for liquor- verified by the applicant in person and, if related regulating and policing. the applicant is a corporation,by an officer (e) License fee, off-sa.le. The license fee for an of the corporation. of�sale license is hereby fixed at the sum of one thousand dollars($1,000.00). The applicant shall file with the inspector, with his application, the amount of the license fee herein . (fl Fees, transfers. Where a transfer of an on- fixPd for the particular license for which he makes sale or off-sale license is approved by the council, application. • � the fee to be chazged shall be the prescribed an- nual fee less a credit given for each month or (b)� Inuestigcztion; issuance; etG The license in- � portion of a month remaining of the original term. Sp��r shall register the application in books kept (g) I,ate fees. Notw ithstanding the provisions of for that purpose, one for on-sale licenses and one , Section 310.09, an applicant for renewal of an for�off-sale licenses. He shall notify immediately � on-sale liquor license shall be charged a late fee the director of the division of public health, the in an amount of ten (10) percent of the install- chief of police and the chief of the department of ment due for such license for each thirty-day pe- fire and safety services of the fact that such ap- riod or portion thereof which had elapsed after plication is filed.It is hereby made the duty of the the expiration date of such license or semiannual �oresaid di.�ector, the chief of police and the fire period, and the late fee shall not exceed fifty(50) chief to inspect and examine or have inspected ' percent of the annual life. and examined the premises described in the ap- (Code 1956, § 308.17; Ord. No. 16842, 10-20-81; Plication and inquire into the character of the ` Ord.No. 17321, § 1, 12-31-85;Ord.No. 17328, § 1, aPPlicant and make report to the inspector of their 1•23-86; Ord. No. 17424, §§ 1, 2, 1-6-87) opinion whether the applicant is a proper person to receive such a Iicense and whether the prem- � Sec. 409.06. Licensing requirements. ises are suitable for such a business.Upon receipt of the reports, the inspector shall examine them (a) Application. Any person desiring a license and transmit them to the city council, together to sell intoxicating liquor shall make his verified with any recommendations which he, as such in- '' application in writing upon a form approved by spector, has respecting the applicant or the place 2173 ¢4�•� • LEGISLATIVE CODE of business. Upon receipt of such reports and rec- No license shall be granted to any person who ommendations,the council shall consider the same opens a new drug store after January 6, 1934, and shall, by resolution, grant or deny the appli- until such person shall have operated such store cation. continuously for a period of two(2)years,or ahall Where the application is for an off-sale liquor have purchased a drug store that shall have been �icense and the applicant is the holder of an on- in continuous operation for a period of two (2) sale nonintoxicating malt liquor license hereto- Years. fore issued by the city council to sell such nonin- • (c-1) Public hearing; notices. No new license for toxicating malt liquor for consumption on the prem either on sale or off sale shall be issued until the ises,the council shall not grant such off-sale liquor council shall have first held a public hearing on license until the applicant surrenders his license the application. The notification requirements to sell nonintoxicating malt liq�or for consump- applicable to license transfers or change in licensed tion on the premises. If an off-sale license is grant- �eas in Section 409.11 shall be applicable in the , ed, the resolution granting it shall direct the in- issuance of new licenses. spector to issue the license whenever the bond hereinafter provided for has been approved and (d) One license only. Not more than one of�=sale the liquor control commissioner advises the in- retailer's license shall be directly or indirectly spector that he approves of the issuance of the issued to any one person or for any one place in license to the particular applicant. this city, nor shall any retailer's off-sale license If an on-sale license is granted, such resolution be directly or indirectly issued for any place for shall direct the inspector to issue the same whe�- �'�'hich a license of another class has been granted. . ever the bond hereinafter provided for has been It shall not be a violation of this paragraph for a approved. person who owns, directly or indirectly, or who has an interest in any intoxicating liquor Iicense Should the application for a license not be grant- in this city additionally to own directly or indi- -- ed, the resolution refusing the same shall autha rectly or to have an interest in one or more corpo- rize and direct the proper city o�cers to refund to rations owning or operating a hotel holding an the applicant the deposit made at the time of the intoxicating liquor license in connection therewith; filing of the application. provided, that such hotel shall have at least one . No new license shall be issued for any location hundred fifty(150)or more rental units. within a one-half mile radius of which there al- ready are four (4) or more premises licensed fur �e) Premises of licens� No on-sale or off-sale the sale and consnmption of intoxicating Iiquur license shall be effective beyond the compact and on the premises; provided, however, that this re- contiguous space named in such license and for striction shall not apply if the proposed new lce�- which the same was granted, except that�an on- tion lies within a designated commercial devel- sale license granted for sales in the dining room � opment district. of any hotel may permit sales of liquor with meals in additional dining rooms open to the public and� • (c) Licensee qualifccations. No license shall be specified in the license if ineals are regularly served issved to anyone other than a person over nine- to guests therein.If ineals are regularly served to teen (19) years of age, of good moral character guests in guest rooms in any such hotel, liquor and repute, nor to any person who shall be here- may be sold in such guest rooms but only with after convicted of any willful violation of any law meals;.provided, that such guest rooms must be of the United States or the State of Minnesota or specifed in the license granted. No sales shall be any city ordinance with regard to the manufac- made upon the premises of.an on-sale licensee ture, sale, distribution or possession for sale or except upon the ground floor; provided, however, distribution of intoxicating liquor, nor to any per- that this limitation shall not apply to a hotel duly son whose license under the state liquor control licensed to sell on another floor as in this section act or this chapter shall be revoked for any will- provided; and provided further, that a iicensee ful violation of such act or ordinance. shall be permitted to sell at a place in a building 2174 LICENSES §409.06. other than the ground floor if a license has been (4) No outside service area shall be permitted granted for sales on a floor other than such ground unless the licensee provides, in addition to floor.All licenses granted hereunder shall set forth other requirements of law, safety barriers the exact location within the building structure or other enclosures to protect patrons from where such sales may be made and no sale shall any hazards, including vehicular traff'ic. be permitted except in that part of the premises (5) No outside service area shall be located on defined in the license, except as provided in the public property or npon any street,alley or following subsections(1)through(8): sidewalk,nor shall such outside service aress hinder or obstruct vehicular or pedestrian (1) The council may,by resolution,permit any tr�c on any street, alley or sidewalk. licensee to sell or serve intoxicating liquors . in areas outside the building structure which (6) The council may deny any application for are immediately adjacent to and contigu- an outside service area where it has reason ous with the structure containing the li- to believe,or may revoke its permission for . censed premises. Such outside service areas such an outside service area where it is shall be seasonal, and shall not involve an satisfied, that the impact of such outside enlazgement of the building structure.Such service area on adjoining property will be, permission shall not be granted unless all or has been, any of the following: the conditions of subsections(1)through(8) a. Loud, boisterous or disturbing noise and all pertinent provisions of the zoning levels; code are satisfied. b. Hazardous tr�c conditions; c. Offensive,obnoxious or disturbing odors; (2) No outside service area shall be permitted d. Excessive litter; unless the licensee presents with his appli- e. Excessive art�cial lighting; cation for such outside service area a state- ' f. Substantial decrease in adjoining prop- ment in writing by ninety (90) percent of erty values; or � the owners and tenants of all private resi- g. Any other condition inconsistent with dences, dwellings and apartment houses lo- the reasonable use and enjoyment of cated within tv��o hundred (200) feet of the adjoining property and inconsistent with proposed outside service area that they have the health, safety, morals and general no objection to such service area. Measure- welfare of the adjoining neighbors or ments shall be determined from the prop- community. erty line of the licensed premises to the property line of the residential uses; pro- ��j permission to sell and serve intoxicating vided,however,that where the licensed prem- liquor in or upon any outside service area ises'is located within a sho �n mall or a►ay be revoked by the council on three(3) Pp g days' notice to the licensee, pursuant to shopping center the measurements shall information received at a public hearing - be determined from the nearest corner of before said council. The information need the building in which the licensed prem- not be received under oath, but must rea- ises is located to the property line of the Sonably satisfy the council as to the exis- residential uses. tence of any or all of the conditions listed ' (3) Notwithstanding any other provision of law, ��bparagraph(6).The public hearing shall off-street parking spaces may not l�e reduced be conducted with such formal or informal by the establishment of an outside. service ' Prceedures as the council may permit, so area below the number of off-street park- long as the licensee and any complaining ing spaces which would be requi�red if the P�ies have an opportunity to be heard. licensed prenuses together with the outside (8) The licensee shall, with respect to any out- service area were to be newly constructed side service area, comply with all applica- in conformity with the zoning code. ble provisions of law and regulations in 2175 : - �� / ��Y §409.06 " LEGLSLATIVE CODE regard to the sale and service of intoxicat- (1) That the licensee will obey the law relat- ing liquor, including, without limitation by ing to such licensed business. reason of this specification, all applicable �2� That the licensee will pay to the munici- regulations contained in Sections 409.08 pality, when due, all taxes, license fees, and 409.09 of this chapter. penalties and other charges provided by (� Zoning restrictions..No license shall be is- laa,, sued for premises located within an area wherein such use of the premises is prohibited by the zon- (3) That in the event of any violation of the ing code, nor within an area where such sales are provisions of any law relating to the busi- forbidden by the state law or any other ordinance ness for which the license has been granted of the city. �for the sale of intoxicating liquor,such bond shall be forfeited to.the City of Saint Paul. (g) �icense restrictions. No off-sale license shall be issued for any place where nonintoxicating (4) That the licensee will pay, to the e�rtent of malt beverages shall be sold for consumption on the principal amount of such bond, any dam- the premises. ages for death or injury caused by or re- (h) Other required permit No license granted sulting from the violation of any provision , hereunder shall be effective until a permit shall of law relating to the business for which be issued to such licensee by the United States if such licensee has been granted a license, any such permit is, in fact, required. and further conditioned that such recovery may be had also against the surety on his (i) State restrictions. No license shall be issued bond. to any person in connection with the premises of another to whom no license could be issued under Tbe amount specif`ied in any bond required is the provisions of the state liquor control act; pro- hereby declared to be a penalty and the amount vided, however, that this provision shall not pre- recoverable shall be measured by the actual dam- vent the granting of a license to a proper lessee ages; provided, however, that the surety thereon by reason of the fact that he shall lease premises shall not be liable for any amount in excess of the of a minor, noncitizen or a person who has been penal amount of the bond.All such bonds shall be convicted of a crime other than a violation of this for the benefit of the obligee an�l of all persons . chapter or the liquor control act. suffering damages by reason of the breach of con- ditions thereof. Such bonds shall run to the City (j) Bond No on-sale license shall be granted of Saint Paul�as obligee, and in the event of for- until a bond in the amount of three thousand feiture of any such bond for violation of the law, dollars ($3,000.00) has been furnished, approved the District Court of ftamsey County may forfeit and filed by and with the proper city officers. the penal sum of the said bond to the City of No off-sale license shall be granted until a bond Saint Paul. in the sum of one thousand dollars ($1,OOU.00) �� Renewals: shall be furnished and approved by the stat�e li- quor control commissioner and the city council, (1) An on-sale license renewal may be denied and fled with the proper city officers. for any licensee who is delinquent in any , The surety on such bond shall be a surety com- P8Yment or contribution to a health and � pany duly licensed to do business in the State of v�elfare trust or pension trust. � Minnesota, and the bond shall be approved as to (2) If on or before the expiration date of the form by the city attorney. All bonds when ap- � license the licensed business has discontinued proved by the proper city or state officers, as the its operation or clused for any reason, the case may be, shall be deposited with the director council snall renew said license only upon of the department of finance and management the condition that the licensee shall reopen services. All such bonds, whether off-sale or on- and restore the licensed business Lo full sale, shall be conditioned as follows: operation within the terms of the renewed 2176 � . LICENSES - $409.07 - license, or in the alternative, that the li- (m) Unlawful use 'of weapons. If during any censee shall make application for and ob- twelve-month period there are reported two(2)or tain passage,approval and publication of a more incidents involving unlawful use or handling resolution for the transfer of said license of firearms,assault weapons or knives,as defined within the term of the renewed license to in Section 225.01, on any licensed on-sale prem- another person. No license issued upon con- ises, a public hearing shall be conducted by the dition pursuant to this subsection shall be council.Any adverse action may be considered by further renewed unless one or the other of the council pursuant to the hearing provisions of the above conditions h�s been fully met; Section 310.05. provided, however, that the council may (Code 1956, §§ 308.03, 308.05, 308.07-308.11, reissue a license for a business which has 308.13, 308.15, 308.19, 30826, 308.34; Ord. No. not been in full operation during the prior 17172, 10-23-84; Ord. No. 17173, 10-23-84; Ord. license year if the licensed premises were No. 17177, 10•23-84; Qrd.No. 17229, § 1,4-18-85; acquired by eminent domain or under the Ord. No. 17247, § 1, 6-6-85; Ord. No. 17289, § 1, threat of eminent domain and the licensee 9-10-85; Ord. No. 17318, § 1, 12-24-85; Ord. No. has made a good faith attempt to relocate 17328, § 2, 1-23-86) the business to another location. t,'`ross reference—Licensing requirements for establ;shments (3) Any license which is not renewed pursuant �Iling aonintogicating malt liquors,§.��0.03. ' . to this paragraph (k) or for any other rea- �c. 409.07. Hours of sale; Sunday sates,etc. son lapses and may be reissued pursuant to Section 409.16. (a) Hours o f sale. No sale of intoxicating iiquor shall be made after 1:00 a.m.on Sunday nor until (1) License near church or school. No license 8:00 a.m. on Monday. No on-sale shall be made shall be issued for any premises located within between the hours of 1:00 a.m. and 8:00 a.m. on three hundred(300)feet from any public or paro- �y weekday. No off-sale shall be made before � chial school, church or synagogue, said three hun- 8:00 a.m. or after 8:00 p.m. of any day except dred (300) feet being calculated and computed as off-sale shall be permitted on Friday and Satur- the distance measured from the property line of day until 10:00 p.m. No off-sale shall be made on . the premises or building proposed as the location New Yeaz's Day, January 1; Independence Day, for the liquor license tra the property line of any July 4; Thanksgiving Day; or �hristmas Day, De- school,church or synagogue in the area for which cember 25; but on the evenings preceding such the license is sought. days,if the sale of liquors is not otherwise prohib- Any licenses in force and effect on November ited on such evenings, off-sale may be made until 10, 1962, the location of which license is in con- 10:00 p.m., except that no off-sale shall be made flict with the provisions hereof, may be renewed, on December 24 after 8:00 p.m. � transferred or otherwise dealt with in accordance (b) Sunday sales: with law, it being the intent of this paragraph that it be applied prospectively for proposed loca- (1) Not�vith.standing the provisions of paragraph tions of licenses,and further it being the intent of (b), establishments to which on-sale licen- this paragraph that the limitations set forth in ses have been issued or hereafter may be this paragraph shall in no manner be applicable issued for the sale of intoxicating liquors � to any hotel or motel.Upon written pe�iti�n signed which are hotels or restaurants and which on behalf of the school, church or synagogue la have facilities for serving no fewer than � cated within three hundred (300) feet of the pra fifty (50) guests at one time may serve in- posed lceation of the license,the councit may by a ��8��ors between the hours of 10:00 five-sevenths vote disregard the provisions of this " a.m. and 12:00 midnight on Sundays in paragraph insofar as location adjacent to a church, conjunction with the serving of food,but no school or synagogue of a proposed license is liquor shall be served on Sundays other ' concerned. than to persons who are seated at tables; Supp.No.1 2177 §409.07 . . LEGLSLAT7VE CODE provided, that the licensed establishment (2) No liquor shall be sold or furnished for any is in conformance with the Minnesota Clean purpose whatever to an Indoor Air Act. y person under twenty�ne(21)years of age or to one obvi- (2) It is unlawful for any such establishment, ously intoxicated or to any person to whom directly or indirectly,to sell or serve intox- such sale is prohibited by any law of this icating liquors as provided in subparagraph ��or ordinance. Proof of age for purchRS. (1) above without having first obtained a ing or consuming alcoholic beverages may special license therefor. Such special license be established only by a valid driver's li- may be issued by the council for a period�of cense or Minnesota identification card, or one year and for which the fee shall be two ��e case of a foreign national by a valid hundred dollars ($200.00). Application for P�sport. A person who was born on or be- said special license shall �e made to the fore September 1, 1967, may continue to council in the same manner as application P�'chase and consume alcoholic beverages � for other licenses to sell intoxicating liquor and shall be treated for purposes of this are made. Legislative Code as a person who is twenty- one(21)years old. (c) No consumption or display when prohibited No person shall consume or display or allow con- �3� No sale shall be made in any place or in sumption or display of liquor upon the premises P� af a building where such sales are of an on-sale licensee at any time when the sale of prohibited by state law-or this chapter. such liquor is not permitted. (4) No person under eighteen(18)years of age . (d) Private Christmas parties. Notwithstandin� may be employed in a place where intoxi- any other provision of the Legislative Code, the cating liquor is sold for consumption on the license holder of premises having an on-sale li- premises,except persons under eighteen(18) cense ma� once a year during the Christmas sea- Year's of age may be employed as musicians son have a private party at no charge to the guests or in bussing or washing dishes in a res- . after the lawful closing hours; provided, that a ta�'ant or hotel that is licensed to sell in- written request for said party is submitted to the toxicating liquor and may be employed as license inspector thirty (30) days prior to the pro- waiters or waitresses at a restaurant,hotel � posed date of the party; and provided further, or motel where only wine is sold; provided, that no sales as defined by law of intoxicating that the person under the age of eighteen liquors or nonintoxicating malt liquor shall be (18)may not serve or seli any wine. made at or during said party. The inspector shall (5) Every licensee is hereby made responsible notify the chief of police of the date of each pra for the conduct of his place of business and posed party, required to maintain order and sobriety in (Code 1956, § 308.20; Ord. No. 16815, 7-23-81; such place of business. - Ord. No. 17037, 6-30-83; Ord. No. 17162, 9-27-84) • (6) No licensee shall keep, possess or operate, Sec• 409•U8• R.egulations generally, or permit the keeping,possession or opera- tion of, on any licensed premises or in any • All licensees hereunder are hereby required to room adjoining the licensed premises any observe the following regulations;provided, how- slot machine dice or an ever that any such regulation which s ecificall ' Y b�bling device � Y or apparatus, nor permit any gambling refers to an on-sale licensee shall not bind an therein(whether or not licensed by the state), off-sale licensee, nor shall any regulation which nor permit the licensed premises or any specifically refers to an off-sale licensee bind an room in the same or in any adjoining build- on-sale licensee: ing directly or indirectly under his control (1) All sales shall be made in full view of the � be used as a resort for prostitutes or public. other disorderly persons, except that pull- Supp.No.1 -1 2I78 � _ . • LICENSES §409.08 tabs and tip-boards may be sold on licensed tions until one hour after the parade, to premises when such activity is licensed by ensure that patrons do not enter or exit the state pursuant to Minnesota Statutes, with beer or intoxicating liquor. Chapter 349, and conducted pursuant to regulations contained in this Legislative (11) There shall be provided in all zoning dis- Code. This exception shall not apply to es- tricts, other than B-4 or B-5 Districts, off- tablishments licensed by the city for the street parking spaces for all on-sale prem- sale of nonintoxicating malt beverages,non- ises as provided herein: intoxicating malt beverages and wine, and a. �ansfer or new issuance to a struc- nonintoxicating malt beverages and wine �e newly constructed for that purpose, as menu items only. off-street parking at the rate of one Notwithstanding other provisions of this space for each forty-five(45)square feet Legislative Code to the contrary,the coun- of patron area. • cil may permit an on-sale licensee to per- b. 'I�ansfer or new issuance to an exist- mit the holding of a single event, such as a ing structure not previously licensed banquet, that includes the sale of ra�fle for on-sale purposes during the twenty- tickets as a part of the event activity; pro- four (24) months preceding the appli- vided, that such events are separate from cation, off-street parking at the rate of the public areas of the licensed establish- one space for.each forty-five(45)sq.uare ment, nor open to the general public, and feet of licensed patron area minus the the raffle conducted by a charitable orga- number of off-street parking spaces . nization licensed by the State of Minnesota. which would be required for the previ- ous use of the same area under the l� ` (7) No dancing wherein the public participates, � existing zoning code provisions. Exist- and no dancing, singing or other vaudeville ing parking which previously served exhibitions or entertainment shall be per- the same area shall not be counted to mitted on the premises of any on-sale li- meet the requirements unless any are censee unless such premises are duly licensed in excess of what would have been re- for entertainment. quired for the previous use. No addi- . (8) The license issued to said licensee shall be tional off-street parking shall be required posted in a conspicuous place in that por- if the number of additional spaces re- tion of the premises for which the license quired is five(5)or fewer spaces. has been issued. c. Expansion of licensed area, off-street (9) No person shali remain in or loiter in the P�'king at the same rate as transfer or parking lot of a.n on-sale licensee af�er the new issuance to an existing structure not previously licensed for on-sale pur- . lawful closing hour. poses, plus twenty-five (25) percent of (10) When a licensee is notified by the police any parking shortfall for the existing department that a parade will be held within licensed area. "Parking shortfall" shall one block of the licensee's establishment, mean the difference between one space • all beer and all intoxicating liquor or liq- for each forty-five (45) square feet of uid of any type sold during the entire day patron floor area for the existing licens� of said parade shall be sold only in plastic , area minus the number of parking spaces or paper containers. In addition, upon re- actually provided for that area. ceiving such notice,the licensee shall place d. "Patron area" shall mean to include a person at each entrance and each exit of all areas used by the public, and ex- the establishment at least one hour prior cludes all areas used exclusively by em- to the time of parade, and the licensee shall ployees for work,storage or office space. " require a person to remain at those loca- Supp.No.1 2179 , ��_/�� 4 409-OS LEGISLATTVE CODE e. Modification of parking requirements: ing off-street parking facilities which serve 1. The council may modify the off- the building shall be provided with a vi- street parking requirements con- sual screen where the parking facility ad- tained in this section upon appli- joins or abuts across an alley any residen- cation made for that purpose and tial use or residential zoning district. The upon findings made by the council screen shall be between four and one-half that granting of such modification (4�i)and sig and one-half(6'f�)feet in height would not have a substantial det- and of suff'icient density to visually sepa- rimental impact on the surround- rate the parking facility from the adjacent ing neighborhood. Modification, if residential use district.The screen may con- granted, shall be by resolution sist of various fenee materials, earth berms, adopted by at least five (5) affir- plant materials or a combination thereof. mative votes. Access by patrons to the parking facility 2. The council shall consider the ap- from an adjacent alley should generally be plication at a public hearing fol- prohibited. lowing mailed notice thereof to prop- (Code 19.56, § 308.23(1)—(10); Ord. No. 17015, erty owners within three hundred 428-83; Ord. No. 17043, 8-9-83; Ord. No. 17173, � fifty (350) feet of the proposed li- 10-23-84; Ord. No. 17321, § 2, 12-31-85; Ord. No. censed premises. The council may 17368, § 1, 6-24-86; Ord. No. 17436, § 1, 2-24-87; require,by resolution,the payment Ord.No. 17460, § 1,5-28-87;Ord.No. 17473, §§ 1, of an administrative processing fee 2, 7-7-87) for parking modif"ication applica- tions. Applications and fees shall Sec. 4Q9.09. Certain sesual conduct proliibited. be made to the license inspector. �e following acts or conduct on licensed prem- 3. In granting any modification, the ises are unlawful and shall be punished as pro- council may attach reasonable con- �ded by Section 1.05 of the Saint Paul Legisla- ditions regarding the location,de- . sign, character and other features tive Code: of the licensed structure and park- (1) To employ or use any person in the sale or ing area deemed necessary for the service of alcoholic beverages in or upon protection of the adjacent neigh- the licensed premises while such person is � borhood. unclothed or in such attire,costume or cloth- 4. Off-street modifications shall rem�in ing as to expose to view any portion of the with licensed premises so long as female breast below the top of the areola or • the chai�acteris�ics of the licensed of any portion of the pubic hair, anus, cleft establishment remain unaltered, In of the buttocks,vulva or genitals. the event parking problems arise, the council may consider taking adverse action pursuant to the pro- . cedures set forth in Chapter 310 of , this Code.Such adverse action may include requiring the licensee to � do one or more of the following: (i) Provide more off-street parl�ng, (ii) Produce the usable floor space; , _ (iii) Reduce patron capacity (seat- ing or bar area). (I2) When an existing building is converted to on-sale intoxicating liquor purposes, exist- "a1 Supp.No.l 2180 LICENSES §409.10 (2) To employ or use the services of any host- d. Scenes wherein artificia.l devices or in- ess while such hostess is unclothed or in animate objects are employed to depict, such attire,costume or clothing as described or drawings are employed to portray, in subparagraph(i)above. any of the prohibited activitiea described above. (3) To encourage or permit any person on the (Code 1956, § 308.23(11) licensed premises to touch,caress or fondle the breasts, buttocks, anus or genitals of Sec. 409.10. Restrictions on licenses. any other person. When a reasonable basis is found by the coun- (4) To permit any employee or person to wear cil to impose reasonable restrictions upon a li- or use any device or covering exposed to cense held under this chapter, the council, upon view which simulates the breast, genitals, ��ng a new license or renewing a license or anus, pubic hair or any portion thereof. aPProving a transfer of a license, may impose reasonable conditions and restrictions pertaining (5) To permit any person to perform acts of or to the manner and circumstances in which the , acts which simulate: business shall be conducted to preserve the public peace and protect and promote good order and a. With or upon another person sexual security. These reasonable conditions or restric- intercourse, sodomy, oral copulation, tions may pertain to: flagellation or any sexual act which is �1� A limitation as to the hours when intoxi- prohibited by law. cating liquor may be sold and/or consumed b. Masturbation or bestiality. on the licensed premises; c. With or upon another person the touch- ing, caressing or fondling on the but- (2) A limitation and restriction as to the exact tocks, anus, genitals or female breast. location within a building where intoxicat- d. The displaying of the pubic hair, anus, ing liquor will be served and/or sold and/or � vulva, genitals or female breast below consumed; the top of the areola. (3) A limitation and restriction as to the means (6) To permit any person to use art�cial devi- • of ingress to or egress from the licensed ces or inanimate objects to depict any of estiablishment; the prohibited activities described above. (4) A requirement that certain off-street park- ing facilities be provided; . • (7) To permit any person to remain in or upon �5) A condition that the license will be in ef- the licensed premises who exposes to pub- lic view any portion of his or her genitals fect only so Iong as the establishment re- or anus. mains a drugstore, restaurant or hotel as defined by the state liquor act or regula- (8) To permit the showing of film,still pictures, tions adopted pursuant thereto; electronic reproduction or other visual re- (6) A limitation and restriction as to the means • " productions depicting: and methods of advertising the sale of in- a. Acts or simulated acts of sexual inter- toxicating liquor on the building and/or on ` course, masturbation, sodony,bestial- the premises adjacent thereto; ity,oral copulation,flagellation or any (7) Reasonable conditions limiting the opera- sexual act which is prohibited by law. tion of the licensed premises so as to en- b. Any person being touched, caressed or sure that the licensed business will com- fondled on the breast, buttocks, anus port with the character of the district in or genitals. which it is located and,�or to the end that c. Scenes wherein a person displays the nuisances will be prevented. wlva or the anus or the genitals. (Code 1956, § 308.11(b)) 2181 4 409.11 � LEGISLATIVE CODE Sec. 409.11. Z�ansfer of license; change in ser- management services. Prior to the city council's vice area. consideration of said application, the application (a) No license granted hereunder shall be trans- shall be read by the city clerk at the next regulax ferable from person to person or from place to meeting of the city council. place (including changes in licensed areas) with- The council shall then schedule a date for pub- out the consent of the city council,which consent lic hearing upon said application for transfer or shall be evidenced by resolution passed by the change in licensed area. At least forty-five (45) city council. No license granted for a spec�ed days before a public hearing on a transfer or change part of any particular premises shall permit sales in licensed area, the department shall notify by of such liquor on a part of such premises not mail all owners and occupants who own property . specified in the license; provided, however, that or reside within three hundred fifty (350) feet of the council may, by resolution, grant the right to the establishment to which the license is to be . use such other portions of the premises for such transferred or area changed, and all community sales. organizations that have previously registered with The transfer of stock in any corporate license said department to be notified of any such appli- cation, of the time, place and the purpose of such shall be deemed a transfer within the meaning of hearing, said three hundred fifty(350}feet being this section,and no such transfer of stock shall be �lculated and computed as the distance measured made without the consent of the city council. in a straight line from the �roperty line of the It is hereby made the duty of the officers of any building where intoxicating liquor is sold, con- corporation holding a license issued under the sumed or kept for sale to the property line owned, ' authority of this chapter to notify the city council leased or under the control of the resident. Prior of any proposed sale or transfer of any stock in to the hearing date,said department shall submit such corporation, and no such sale or transfex of to the council a list of the names and addresses of stock shall be effective without the consent of the each person or organization to whom notice was council given in the manner above set forth. The sent, and certification of such list by the depart- ' transfer of any stock.without the knowledge and ment shall be conclusive evidence of such noise. consent of the city council shall be deemed sui�i- A transfer or change in licensed area under this cient cause for revocation by the council of any section only becomes effective upon compliance � license granted to such corporation under the au- with this section and consent of the council by thority of this chapter. resolution. The failure to give mailed notice to Such corporate officers shall also notify the city owners or cecupants residing within three hun- council whenever any change is made in the offi- �'ed fifty (350) feet, or to community organiza- cers of any such.corporation, and the failure to so tions,or defects in the notice,shall not invalidate notify the council shall likewise be sufficient cause the transfer provided a bona fide attempt to com- � for revocation of any liquor license granted to Ply with this section has been made. A bona fide such corporation. attempt is evidenced by a notice addressed to • "owner" and to "occupant" of the listed address. Notwithstanding the provisions of this section, Only one notice need be mailed to each house or publicly owned corporations whose stock is traded each rental unit within a multiple-family dwell- � in the open market may comply with the require- ing regardless of the number of occupants. ments pertaining to stock ownership and stock �e. notification requirements of this section transfer by furnishing the council with the names shall not be applicable where the license is to be and addresses of all stockholders of record upon transferred to a place located within the down- each renewal of the license. tovvn business district. For purposes of this sec- An application for the transfer of such a license tion, downtown business district shall include all shall be made by the transferee upon forms fur- that portion of the City of Saint Paul lying within nished by the division of license and permit ad- and bounded by the following streets: Beginraing ministration of the department of finance and at the intersection of Shepard Road with Chest- 2182 . LICENSES �409.14 nut Street, Chestnut Street to Pleasant Avenue, (d) Notwithstanding the foregoing, no licensee Pleasant Avenue to Kellogg Street, Kellogg Street shall be allowed to change the location of the to Summit Avenue,Summit Avenue to Tenth Street, licensed premises for on-sale intoxicating liquor Tenth Street to Interstate Freeway 94, Interstate (place to place transfer) to any location within a Freeway 94 to Lafayette Bridge, Lafayette Bridge one-half-mile radius of which there already are to where the bridge crosses over Warner Road, four(4)or more premises licensed for the sale and Warner Road to Shepard Road, Shepard�Road to consumption of intoxicating liquor on the prem- Chestnut Street. ises, unless his or her previous Iceation is within one-half mile of the new location and the previous (b) Notwithstanding any other provision in the location was acquired or condemned by a body Saint Paul Legislative Code, no on-sale license having the power of eminent domain, or the pre- shall be transferable from person to person; pra vious location was destroyed or made unusable by vided, however, that until December 31, 1989, fire or natural disaster, or the lease for the previ- such license may be transferred from person to ous location expired and the landlord was unwill- � person if the following requirements are met: ing to renew it. This paragraph does not app)y if (1) The consideration for the transfer, whether �e proposed new lceation lies within a designated expressed as payinent for the license or for commercial development district. the transferor's consent to the transfer,shall �Code 1956, § 308.16; Ord. No. 17172, 10-23-84; Ord.No. 17173, 10-23-84;Ord.No. 17177,10-23-84) not exceed the ]icense redemption value . under Section 409.19 at the time the trans- r,,fec. 409.12. Revocation;suspension;fine. fer is approved; Any license or permit under this chapter may (2) The transferee may operate said on-sale be either suspended for up to sixty (60) days or license for the twenty-four-month period next revoked or a civil fine imposed not to exceed two following the approval of the transfer only thousand dollars($2,000.00)for each violation on in a commercial development district as a finding by the council that the license or permit, defined in Section 17.07 of the City Char- holder has failed to comply with an applicable ter; and statute, rule or ordinance relating to alcoholic beverages. No suspension, revocation or fine shall . (3) The on-sale licensed business of the trans- take effect until the license or permit holder has feror has for the six (6) months preceding been afforded an opportunity for a hearing under approval of the transfer discontinued its Section 310.05 of this Code. operation or closed for any reason. (Code 1956, § 308.14;Ord.No. 17522, § 1, 12-24-87) From and after January 1, 1990, no on-sale li- , � cense shall be transferable from person to person. �c. 4(?9.13. Inspector s duties. - It is hereby made the duty of the inspector to (c) Notwithstanding any other provision in the see that no applicant for any license hereunder Saint Paul Legislative code, an on-sale license begins to operate such business until the license may be transferable from place to place within has actually been issued to such applicant so to one liquor patrol limit as defined in Section 17.07 do by the inspector. of the City Charter, and from such liquor patrol (Code 1956, § 308.21) limit to �ny location in a commercial development district, also as defined in said section of the Char- �c. 409.14. Owner's responsibility. ter, so long as the transfer and new location meet all the requirements of law, ordinance, Code or (a) Any act by any clerk, barkeeper, agent, ser- Charter. An on-sale license may be transferable vant or employee of any licensee hereunder, in from place to place into a liquor patrol limit sub- violation of this chapter, shall be deemed the act ject to all the restrictions and requirements of of the employer and licensee of such place as well Section 17.07.2 of the City Charter. as that of such clerk,barkeeper,agent,servant or Supp.No.2 2183 $409.14 ' LEGISLATNE CODE employee, and every such employer and licensee given for each month or portion of a month re- shall be liable to all the penalties provided for the maining of the original term. The licenses shall violation of same equally with the clerk,barkeeper, be valid on all days of the week consistent with agent, servant, or employee. the hours of sale provided in Section 409.0?(a). All other provisions of this chapter shall be appli- (b) Any sale of intoxicating Iiquor by a clerk, cable to such licenses and licensees unless incon- barkeeper,agent,servant or employee made in or gy��nt herewith. from any place duly licensed to sell nonintoxicat- ing malt liquor but not duly licensed to sell intox-. (c) Public lzearing; notice� No new on-sale wine � icating liquor shall be deemed the act of the em- license shall be issued, nor any existing license ployer and licensee, as well as that of the person transferred from place to place, until the council actually making the sale,and every such employer shall have first held a public hearing on the ap- and lieensee of such place shall be liable to all the plication. The notification requirements applica- penalties provided in this chapter for such sale, ble to transfers or change in licensed areas in � equally with the person actually making the sale. Section 409.11 shall be applicable to the issuance (Code 1956, §§ 30824, 308.25) of new on-sale wine licenses or transfers from place to place. Sec. 409.15. On-sale wine licenses. (d) On-sale malt beuerczges. A holder of an on- (a) Def nitions. The following definitions shall sale wine license issued pursuant to this section apply to this section: who is also licensed to sell on-sale nonintoxicat- ing malt liquor and whose gross receipts are ait (1) Restaurant shall mean an establishment least sixty(60)percent attributable to the sale of ' � under the control of a single proprietor or food may be permitted by the city council to also manager, having appropriate facilities for sell intoxicating malt liquors at on-sale in con- serving meals and for seating not fewer junction with the sale of food without having io . than twenty-five (25) guests at one time p$y any additional license fee. Such authoriza- and where,in consideration of payment there- tion, if approved by the council, shall be noted � for, meals are regularly served at tables to upon the licenses issued by the inspector. This the general public, and which employs an provision is enacted pursuant to authority granted adequate staff to provide the usual and suit- by Minnesota Statutes, Section 340A.404(5). able service to its guests. (Code 1956, § 308.27; Ord. No. 16912, 4-22-82; (2) On-sale wine license shall mean a license Ord. No. 17247, § 2, 6-6-85; Ord. No. 17328, § 3, authorizing the sale of wine not exceeding 1-23-86; Ord. No. 17491, § 1, 9-16-87) fourteen(14)percent alcohol by volume,for • consumption on the licensed premises only, �c. 409.16. Issuance of new liceases. in conjunction with the sale of food. (a) Applicability. This section applies only to (b) Issuance of license; fee; conditions. On-sale the issuance of new licenses and to the reissua�Ice wine licenses may be issued, subject to the ap- of licenses under this chapter which have reverted proval of the liquor control commissioner, to the �the City of Saint Paul for any reason,including proprietor of any restaurant as defined in this revocation, the death of the licensee, or lapse of section and without regard to Section 409.031im- the license by failure to renew.This section is not itations. The license fee shall be eight hundred applicable to renewals or transfers of licenses. seventy-five dollars ($875.00) payable in two (2) (b) Special issuance excise tax—Off-sale: equal amounts, the first to be paid before the license is issued or renewed, the second payment (1) The council shall condition the issuance or to be made within six(6)months from the date of re-issuance (hereafter, "issuance") of a li- issuance or renewal.Where a transfer of a license cense under this section upon payment of is approved by the council, the fee to be charged the special issuance tax in addition to all shall be the prescribed annual fee less a credit $upp.No.2 2184 � - ��- � �a� LICENSES 4 409.16 other requirements of this chapter and this section. (2) The special issuance tax shall be an amount equal to the fair market value of the li- cense as defined in subparagraph(3)of this subdivision. (3) A license issued under this chapter and this section is a privilege accorded tfl the licensee to engage in the activities permit- ted thereunder,and is neither property nor a property right. The phrase "fair market value," therefore, means, for the purpose of this section, the pecuniary value custom- � arily placed upon the consent of a license . Supp.No.2 2184.1 . � • � LICENSES 4 409.16 holder to the transfer of his license by the a. From August 1, 1984 through January parties to such a transfer as authorized by 31, 1986—$40,000.00; this chapter and Section 310.11.The value b. �om February 1, 1986 through Janu- of such a consent necessarily does not in- ary 31, 1987—$36,000.00; clude real property, fixtures, equipment, c. From February 1, 1987 through Janu- inventory,good will or any other assets. ary 31, 1988—$32,000.00; d. From February 1, 1988 through Janu- (4) Such fair market value, as defined in sub- ary 31, 1989—$28,000.00; paragraph (3), shall be determined by ma e. FYom February 1, 1989 through Decem- tion agreed to by a majority of the mem- ber 31, 1989—$24,000.00. bers bf the council after taking testimony at a public hearing held before the receipt �3� �on-sale license is a privilege accorded to of any application. Such value may be es- �e licensee to engage in the activities per- tablished by testimony of the inspector re- mitted thereby,_and is neither property nor garding recent license transfers, and shall a property right. Such privilege is not im- be the value as reasonably may be deter- pliedly altered by the city's discretionary � mined on or about the time of issuance of option to pay a redemption value for out- such license under this section.The council g�nding licenses or by the payment of a may also hear any other relevant evidence. special issuance tax. Such provisions have . Notice of such public hearing shall be pub- been adopted by the city council in order to lished once in a newspaper of general cir- �e��O�t the private pecuniary value culation in the city not less than ten (10) customarily placed on the consent of a li- days prior to such hearing. cense holder to the transfer of a license by the private parties to that transaction,said (5) It is the intent of the council in adopting transfers now being prohibited by law. this section to gain for the citizens of the �d) Applications: City of Saint Paul this value which is cus- tomarily placed on transfers between pri- (1) The council shall, after determining the vate parties, rather than to confer it upon amount of the special issuance tax,by mo- one licensee as a windfall benefit. tion instruct the inspector to receive appli- � cations for the re-issuance of such license, (c) Special issuance tax—On-sale. specifying beginning and ending dates of a (1) Notwithstanding any other provision of law . period not to exeeed thirty(30)days during ' or ordinance, the council shall condition Which such applications will be received. the issuance or reissuance (hereafter, "is- (2) All applications shall be made on such forms suance") of an on-sale license under this and contain such information as the inspec- . • section upon payment of a special issuance tor may require and shall be accompanied tax determined in accordance with this sub- by an application fee of one hundred dol- division, in addition to all other require- lars ($100.00). Such application fee is in ments of this chapter and this section.The addition to the proportion of the special proceeds of such tax shall be used for the iq�,�nce eaccise tax required by subparagraph redemption of licenses under Section 409.19. (4) of this subdivision, and in addition to The terms"issuance or reissuance,"as used the annual license fee required by Section � in this subdivision,do not include the issu- 409.05. This application fee shall be retained ance of an on-sale license a.s an absolute by the city to defray its expenses hereun- � first priority under paragraph (e) of this der whether or not the applicant receives a section, and no such tax will be imposed license. thereon. . (3) Each appIication must meet all the require- (2) The special issuance tax shall be an amount ments of law and this section, including determined by the following schedule: inspection of the premises sought to be li- • 2185 �409.16 LEGISLATNE CODE censed by appropriate officials of the divi- (2) At the public hearing,the secretary of the sion of housing and building code enforce- council shall place the names of all eligible ment,the division of public health,and the applicants on separate, equal-sized pieces department of fire and safety services.The of paper, under the supervision of the coun- inspector shall refer each application to each cil. Such pieces of paper shall be placed in of the above agencies and to the depart- an ogaque container from which one name ment of police for their inspection and.rec- shall be drawn at random by a member of ommendation, and shall conduct such other the council as designated by the presiding investigation of each applicant as may be officer of the council. The applicant so se- appropriate.When all inspections have been lected shall be announced, and shall be made and recommendations received by the awarded the license, by resolution, upon inspector,he shall notify the council. payment within forty�ight(48)hours there- after of the remaining ninety (90) percent (4) Each application shall be accompanied by of the special issuance excise tax. the deposit of a sum of money equal to ten (10) percent of the special issuance excise (3) In the event the applicant so chosen fails to tax in the form of a cashier's check or certi- pay the remainder of the special issuance fied check payable to the "City of Saint excise tax within forty-eight(48)hours,the Paul." council shall select another applicant in (5) In the event either the inspector or one of accordance with the procedures in this the agencies reporting on the applications ��ion. makes a recommendation that no license (4) The deposit of ten (10) percent of the spe- • be issued to one or more applicants, the cial issuance excise tax shall be retained inspector shall inform such applicants of by �he city until the license is awarded, that fact and the grounds for the recom- after which time the deposits of the unsuc- mendation and provide them with an op- cessful applicants shall be refunded. In the portunity to be heard before the city coun- event any applicant demands and receives � cil before any other action is taken on such back his deposit prior to the award of the re-issuance. The council shall, after such license, the application shall be deemed to hearing, determine whose applications may have been withdrawn. � further be considered despite the adverse recommendation made. If the council de- (� Selection—On-sale termines that one or more recommendations for denial are well-founded, the applications (1) Upon receiving the report from the inspec- involved shall not be included for random tor that all the eligible applications have selection. • been received, inspected and investigated, • and after hearing having considered and � (e) Selection—OJ�sa1e determined whose application may further ' . be considered despite any adverse recom- (1) Upon receiving the report from the inspec- mendation made, the council shall by ma tor that all the eligible applications have tion set a date for a public hearing at which ' been received, inspected and investigated, one or more applicants, depending on the and after hearing having considered and number of licenses to be issued, are to be determined whose applications may further chosen according to the priorities set forth be considered despite any adverse recom- in this subdivision. mendation made, the council shall by mo- � - tion set a date for a public hearing at which (2) If there are more qualifizd applicants than one applicant is to be chosen by random on-sale licenses to be issued,applicants shall selection. All applicants are to be notified be entitled to receive such licenses accord- in writing of such date. ing to the following order of priority: 2186 . ' LICENSES $409.18 a. As an absolute first priority, an appli- (i) Neighborhood Betterment Fund A Neighbor- cant who purchases an existing busi- hood Betterment Fund is hereby established, to ness having an on-sale license with the which ten(10) percent of the proceeds of the spe- intent of operating said business at the cial issuance tax are hereby appropriated. Such same location for at least one year fund shall be used to assist the housing and rede- thereafter; , velopment authority of the City of Saint Paul, b. Applicants for the operation o�'restau- Minnesota, in the acquisition, clearance or rede- rants capable of seating and serving velopment of blighted or deteriorated areas and meals to not less than one hundred structur'es in neighborhoods having concentrations (100)guests at one time,ranked in the of businesses licensed for the sale and consump- order of such seating and serving ca- tion of intoxicating liquor on the premises,which pacity from the�greatest number down acquisition,clearance or redevelopment are hereby to one hundred(100); determined to be for a public purpose. Such pur- • c. Applicants for the operation of hotels poses and uses of the fund may include the acqui- having dining rooms capable of seat- sition of the real or personal property of existing ing and serving meals to not less than on-sale liquor businesses, and affirmative assis- fifty(50) guests at one time,ranked in tance of financing of minority-owned businesses the order of such seating and serving seeking or needing on-sale intoxicating liquor capacity from the greatest number down �Codee1956, §§ 30828-308.33; Ord. No. 17172, to fifty (50); d. Applicants for the operation of restau- 10-23-84; Ord. No. 17176, 10-23-84) rants or hotels not covered above,ranked in the order of capacity for seating and Sec. 409.17. Violation;penalty. serving meals to guests from the great- Violation of any of the regulations contained in . est to the lowest seating and serving �ctions 409.08 and 409.09 shall be a misdemeanor capacity; and and shall be punished as provided by Section 1.05 e. All other applicants, in the order by of the Saint Paul Legislative Code. date and time on which their completed (Code 1956, § 308.23(121) applications were received by the license . inspector. ��, 409,18. Town Square Park; Phalen Park No person whose license was redeemed by Club House. the cit� may apply for the issuance of a new on-sale license within one year of such �e department of community services may au- redemption. thorize any holder of an on-sale liquor license issued by the city to dispense intoxicating liquor (g) Nonissuance Nothing contained in this sec- at any event of definite duration on the public � tion shall obligate the City of Saint Paul, nor premises known as Town Square Park and�'halen imply any obligation,to reissue any licenses which park Club House. The event may not be profit hare reverted to the city. The city council may, making except as a fund raising event for a non- by resolution, declare that such licenses shall not profit organization or a political committee as , be reissued,specifying any length of time deemed defined in Minnesota Statutes, Section 210A.01, advisable during which no such licenses shall be Subdivision 8. The licensee must be engaged to re-issued. dispense intoxicating liquor at the event held by (h} Council contact proh.ibited No person may a person or organization permitted to use the prem- communicate with any member of the city council ises and may dispense intoxicating liquor only to regarding any application or applicant for issu- persons attending the event. A licensee's author- ance or re-issuance of a license pursuant to this ity shall expire upon termination of the contracted section unless such communication is made dur- event. The authority to dispense intoxicating li- ing the course of a public heazing before the council quor shall be granted in accordance with the sta� held pursuant to ..his section. utes applicable to the issuance of on-sale licenses _ ' 2187 - . � , � �.r- �ux�+,� � -•� f._ :: *`:� �� - `--�°---=_-� - 4 409.18 LEGISLATNE CODE in cities of the first class consistent with Laws of (fl From and after January 1, 1990,there shall Minnesota for 1981, Chapter 335 and Laws 1983, be no redemption value. Chapter 259. The dispensing of intoxicating li- quor shall be subject to all laws and ordinances All on-sale licenses which are revoked or not re- governing the dispensing of intoxicating liquor as �ewed for cause, or which are not renewed as are not inconsistent with `Laws, 1981, Chapter Teq�'ed by Section 409.06(k), may be issued or 335 and Laws 1983, Chapter 259. All dispensing re-issued by the city in accordance with law. of intoxicating liquor shall be in accordance with �Ord. No. 17172, 10-23-84) the terms and conditians prescribed by the de- partment of community services and those terms �• `��• CO�ercial development districts, and conditions may limit the dispensing of intox- (a) ��ercial development districts,as defined icating liquor to designated areas of the facility. in Section 17.07.1 of the City Charter, may be The department of community services may fig �eated or expanded by the filing in the office of and assess a fee to be paid to the general fund in �e city clerk of a written petition therefor se� the case of Town Square Park and to such special ting forth the boundaries of the expanded district, . fund as may be designated by the director of said �d containing the written consent of the owners department in the case of Phalen Park Club House of twathirds of the several descriptions of real by an on-sale licensee for each event for which estate situate within the new or area of the ex- the licensee is engaged to dispense intoxicating P�d� �� gether with the written consent liquor. of the owne.rs of two-thirds of the several descrip- (Ord. 16812, 7-16-81; Ord. No. 17074, 11-17-83) tions of real estate situated within one hundred (100) feet of the new or expanded district, and Sec. 409.19. License redemption. after the affirmative vote in favor thereof by at The city may, at its option and in its sole dis- least five(5)members of the city council. cretion, and only to the extent funds therefor re- �� e city council may waive the requirements ceived from the special issuance tax are avail- for consent signatures if the city council sha11 able,redeem any on-sale license,with the consent determine that a hardship exists therefor, and in of the licensee, by payment of the redemption such case tbe council may,on its own, initiate the value to said licensee.Such redemption terminates process of creating or e�anding a co�mercial the�license for that license holder, and permits development district. In such case, the �rma- the city at its option and in its sole discretion to tive vote of at least five (5) members of the city issue said license in accordance with the require- council shall be required to create or expand any . ments of law and ordinance. The city may not such district. redeem any on-sale license which has been re- voked or not renewed for cause. The redemption (c) In all such cases, the planning commission value shall be an amount determined by the fol• shall be consulted for advice concerning the pro- lowing schedule: posals for consistency with the city's comprehen- (a) From August 1, 1984 through January 31, sive pla.n and zonirig ordinances, and the plan- , 1986—$70,000.00; � ning commission shall report in writing to the city counciI its fmdings and recommendations. � (b) From February 1, 1986 through January �d) Upon receipt of the report of the planning � 31, 1987—$60,000.00; commission., the council shall fix a date for public (c) From February 1, 198? through January hearing to consider the peti�ion or proposal to 31, 1988—$50,000.00; create or expand a commercial development dis- (d) From February 1, 1988 through January trict and afford an opportunity to all affected per- 31, 1989—$40,000.00; sons to be heard.The city clerk shall cause notice of the hearing to be published once in the official (e) From February 1, 1989 through December newspaper of the city, and mailed notice thereof 31, 1989—$30,000; and shall be given by the department of finance and 2188 � ' LICENSES 4 409.21 management services to all owners of land within d. The only form of gambling that shall the new or area of the expanded district. Pub- be permitted on the licensed premises lished notice and mailed notice shall be made at shall be pull-tabs and tipboards approved least twenty (20) days in advanced of the public by the license inspector. hearing. e. Pull-tabs a.nd tipboards shall only be (Ord. No. 17238, § 1, 5-9-85) sold from a booth used solely by the charitable organization, and pull-tabs Sec. 409.21. Pull�abs and tipboards in bars. and tipboards shall neither be sold by (a) On-sale licensees may request permission employees of the licensee nor sold from of the city council to permit qualified charitable the baz service area. organizations to conduct lawful gambling in the f. The construction and maintenance of form of pull-tabs and tipboards only on the li- the booth used by the charitable orga- censed premises. Application for permission shall nization shall be the sole responsibil- be made to the license inspector and payment of ity of the charitable organization. the spec�ed fee. If the application is granted,the g. The lease shall contain a provision per- license shall contain an endorsement specifying mitting the licensee to terminate the this approval and the gambling endorsement may lease if the charitable organiza:tion is be considered for renewal at the same time as the found guilty of any violation of state or , council may consider renewal of the on-sale license. local gambling statutes, ordinances ar (b) Gambling endorsements on on-sale licenses rules and regulations. shall be subject to the following regulations which �3) Only one charitable organization shali be shall be deemed as a part of the Iicense, and permitted to sell pull-tabs and tipboards on failure of compliance may constitute grounds for the licensed premises of a Class A estab- adverse action as prescribed in the Legislative lishment, no more than two (2) organiza- �4'0� Code: tions at separate times in a Class B estab- (1) Only charitable nonprofit orgaiiizations iishment,and no more than two(2)charitable whose primary function is the support of organizations shall be permitted to sell pull- athletic activities and serving a majority of tabs or tipboards on the licensed premises � the youth from the City of Saint Paul or of a Class C establishment, provided they contributes a majority of its revenues on are located in totally separate areas. � Saint Paul youth may be allowed to sell pull-tabs and tipboards on the premises. (4)' The licensee may not be reimbursed by the (2) Use of the licensed premises shall be by charitable organization for any license or means of a written lease agreement between Permit fees,and the only compensation which the licensee and the charitable organiza- the licensee may obtain from the charita- � tion. The lease shall be for a term of at ble organization is the rent fixed in the least one year; a copy shall be filed with lease agreement. the license inspector, and also a copy must �5) The Iicensee must commit to a minimum of be kept on the premises and available for twenty (20) hours of sales of pull-tabs and public inspection upon request.Leases shall tipboards for the charitable or anization. � be governed by the following: ;:f� .�� ;� �Q K� ' " a. Maximum rent that may be charged is (6) As a qual�cation fo removal of t e per- r' one hundred dollars($100.00)per week. mission to allow the sale - bs and � b. ftental payments may not be based on tipboards on the licensed gremises, the li- a percentage of profits from gambling. censee must demonstrate to the license in- c. The charitable organization may not spector that at least one thousand dollars reimburse the licensee for any license ($1,000.00) in gross gambling revenues 4 Qy fees or other gambling-related expenses weekly are generated in a Class A estab- � ' incurred by the licensee. lishment, two thousand dollars($2,000.00) 2189 �� - ��a � §409.21 ' LEGISLATTVE CODE _ in a Class B establishment, and two thou- (b) Must be a local charity serving youth, a sand dollars ($2,000.00) per charity in a majority of which are from St. Paul and/or Class C establishment, based on a twenty- spends a majority of its revenues on St. hour-per•week operation. Paul youth. (7) The licensee shall be responsible for the �� Must have been in existence for three (3) charitable organization's conduct of selling Years. pull-tabs and tipboards. The city council (d) May not be supported by a school athletic may suspend the licensee's permission to program,either public or private. allow gambling on the premises for a pe- riod up to sixty (60) days for any violation �e) Must file with the license inspector annu- of state or local gambling laws or regula- 4 ally a list containing the names and ad- 'tions that occur on the premises by anyone, �'esses of all current-members. including the licensee or the charitable or- (� Must use gambling proceeds only for youth ganization. A second violation within a athletic activities. If the organization gen- twelve-month suspension,and any additional erates funds for other uses, it must keep viulations within a twelve-month period shall separate and accurate accounting records . result in the revocation of the gambling of all gambling receipts and disbursements. permission, and may also be considered by the council as grounds for suspension or �g� Must file financial reports weekly with the revocation of the on-sale liquor license. license inspector, (Ord. No. 17321, § 3, 12-31-85) (h) May not have a gambling license in more Cross references—Gambling, Ch. 270; lawfui gambliag, than two(2)Class A establishments and no Ch.402;bingo hatls,Ch.403;game rooms,Ch.4os. more than one Class B or Class C estab- lishment in the City of St. Paul. Sec. 40y.22. Charitable gambling regulations. (i) Must exhibit and sell pull-tabs and tipboards The sale of pull-tabs and tipboards in on-sale in a method as required by the license l.icensed premises shall be conducted only by quali- inspector. fied and state-licensed charitable organizations. (j) May be required to demonstrate to the city � In additinn to satisfying the qualifications set forth council that the majority of their total in- in Minne�sota Statutes,chapter 349,the following come is given to youth athletic activities. regulatianc and qualifications must be complied �� Workers or managers may not divulge the with by �ill such charitable organizations: number of or the dollar amount of the win- � • (a) Mv.st be a nonprofit ch$ritable volunteer ners at any time. or�anization whose primary function is the (1) Shall not comingle game cards. support of athletic activities, including the �m) Shall pay employees a minimum wage of following activities: Acquatics, baseball, bas- three dollars and thirty-five cents ($3.35) ketball, boxing, football, gymnastics, golf, per hour (federal minimum wage) and no hockey, skiing, soccer, softball, speed and more than five dollars($5.00)per hour. , figure skating,tennis,volleyball and wres- tling. The council may, at its discretion, (n) Shall comply with all the provisions of Min- � include nonprofit charitable volunteer or- nesota Statutes, Chapter 349. ganizations whose primary function is the support of youth activities other than ath- �o? Gaxibling manager's compensation shall not letics after an initial sut-month period, pro- exceed fifty dollars($50.00)per week. vided such organizations meet all other re- (p) Shall register with the state gambling board quirements of the charitable gambling all equipment and supplies used in a li• ordinance. censed on-sale liquor establishment. ' 2190 .•m°,.,_ _..._.... ..;<..,.v. ...__,. _::...,.. . , �._ .......�:...,�..._-�_.,..�..T-�-�..�...,. _._�,._..,,.,,._�,,.,.,�„. - _ _ __,�� LICENSES 4 409.24 (q) Shall post in a conspicuous place rules and purpose of supporting youth sports and ath- regulations concerning charitable gambling letic programs. Booster clubs organized for as required by the license inspector. a recreation center or a specif`ic sport may (r) Shall pay to the city-wide organization des- be eligible, but organized school teams, ignated by the city council twenty(20)per- whether public or private,will not be eligible. cent of the net profits from selling of pull- (2) Applicants shall provide inforniation setting tabs to be distributed to other youth athletic forth its stated purpose, number of partici- organizations to be expended for such law- pants served, area served and reasons why ful purposes as specified in Minnesota Stat- the funds are needed. utes, Chapter 349. (3) Funds may not be used for ca rtal e p' xpens- (s) The charitable organization shall not use a es, nor for salaries or travel expenses, but pull-tab or tipboard which does not return may be egpended for an individual or team to the players a minimum percentage of representing the city or state in a state or seventy-five (75) percent, nor a maximum national championship tournament. percentage of eighty(80)percent,which per- centage shall include free plays awarded. (4) No organization operating charitable gam- , bling in the State of Minnesota will be eli- (t) The charitable organization will be respon- gible to receive funds. sible for the booth and other equipment used in the operation as a deductible ex- �5) Funds will be awarded on a matching basis pense of the charity. only. (Ord. No. 17321, § 4, 12-31-85) (6) Organizations receiving funds shall file with GSross reference—Lawful gambling,Ch.402. the city financial reports showing how the funds were expended and for what purpose. Sec. 409.23. F�nd established;admini.stration. No additional grants will be made until (a) There is hereby established a special fund the organization has filed such reports of for the administration and distribution of the pro- previous expenditures. � ceeds contributed by charitable gambling in on• (Ord. No. 17321, § 5, 12-31-85) sale liquor establishments as specified in this chap- ter. Monies in this fund may be expended only for �c. 409.24. Gambling managers. � s�.ich lawful purposes as set forth in Minnesota � Statutes, Chapter 349, and shall be expended to No person shall be a manager of any charitable assist youth athletic organizations which are not organization selling pull-tabs and tipboards in on- selling pull-tabs and tipboards in licensed estab- sale liquor establishments unless licensed by the � lishments. city as provided herein and compliance with the (b) The city council shall appoint a city-wide following requirements: charitable organization and youth or adult repre- (1) Application for gambling manager license sentatives from each of the city's recreation dis- shall be made at the office of license in- tricts to advise the city on the disbursement of spector on forms provided by sairl office. , these funds. The council, with the advice of the The annual license fee is one hundred dol- appointed c:ty-wide charitable organization and lars($100.00). ` representatives, shall by resolution adopt rules �2) Gambling managers shall meet all the re- and regulations governing the administration of quirements of Minnesota Statutes, Chap- the fund,eligible applicants and appropriate uses �r �g� �d must file proof that a ten thou- for the funds.These rules shall include the following. sand dollar ($10,000.00) fidelity bond has (1) Applicants for funding must be incorporat- been provided. ed, nonprofit organizations formed for the Supp.No.l 2191 §409.24 LEGISLATIVE CODE (3) An individual may not manage any chari- shall be granted more than t�o �` such liae� table organization's gambling operation for per calendar year. more than three(3)consecutive years. (c) Application, Application for�ch tempor y't' (4) Gambling managers may not receive more licenses shall be made on forms�o�zded bc t� than fifty dollars($50.00)per week for com- inspector and shall contain such informatic�� pensation for services as a gambling man- spec�ed by the inspector,includi�the followi�,:- ager. . . (1) The name, address and pi�•-pose of the cu` (5) All gambling managers must successfully ganization, together with �e names �nti complete a training program established addresses of its officers. by the city, which training program shall include state charitable gambling laws,city �2� The pu�'P°se for which the te:nporar�'lio�a'0�' charitable gambling ordinances, accounting i$ sought, together with the place, dste� procedures, record keeping and reporting - �d hours during which vriue or intoxicat- . procedures and methods. ing liquor will be sold. (Ord.No. 17321, § 6, 12-31-85) • (3) Consent of the owner or msnager of th� premises, or person or group with la�rfui Sec. 4Q9.25. Temporary wine and liquor li- responsibility for the premi�s. censes. (4) Evidence that the applicant has obtaine.i (a) Wine licenses. Notwithstanding any other and has in force a bond in accordance�'ith � provision of this chapter, a bona fide nonprofit Section 409.06(j), and liabili,r insurance Ir charitable, religious or veterans organization may accordance with Minnesota Statutes 19�F- . obtain on-sale license to sell wine not exceeding Section 340A.409. fourteen (14) percent alcohol by volume for con- �d) Application of other provisior.s of this chnF� sumptior. on the licensed premises only. The fee �r. No other provisions of this chaFter shali app��' for such.license shall be one hundred thirty-five �licenses granted under this section,except Sec- dollars (�135.00) per day, and licenses shall be tions 409.06, 409.07, 409.08 (except clauses 1I1� ' issued for periods not to exceed three (3)consecu- and(12)), and Sections 409.09 through 409.14. tive days. No organization shall be granted more �Ord. No: 17459, § 1, 5-28-87) than two(2)such licenses per calendar yeaz. . Editor's note—Ordinance No.17459,adopted MaY 28.19.5'• (b) Liquor licenses. Notwithstanding any other �ended Ch. 409, but did not specfy the exact manner � provision. of this chapter, a club or charitable, inclusion.At the editor's discretion,therefcve,§ i of Ord.N�. 17459 has been included herein as§409.25. religious or other nonprofit organization in exis- tence for at least three (3) years may obtain on- sale license to sel� intoxicating liquor for consump- �ap�r 410.Nonintoxicating Malt Liquor'" tion on the licensed premises only and in connec- . tion with a social event within the city sponsored �c. 410.01. License required; definitione; . by the licensee. The license may authorize on- ezceptions. � sales on premises other than premises the licen- see owns or permanently cecupies. The license (a) No person shall sell nonintoxicating malL may provide that the lieensee may contract for liquors at retail in Saint Paul without a licenae. intofficating liquor catering servioes with the holder (b) On-sale licenses shall permit the licenaee � of a full year on-sale intoxicating liquor license for the sale of said nonintoxicating malt liquo�'� issued by the City of Saint Paul. The fee for such « license shall be one hundred thirty-five dollars �'oss references—Liquor and beer resulations genernl• ly,Title XXIV;intosicating liquor, Ch. 409; use of beer end ($135.00)per day, and shall be issued for not more intoaicatiag liquor prohibited in motion picture drive•in t.h�a• than three (3) consecutive days. No organization tTea,§4is.os(b). Supp.No.1 . 2192 � # . - �. .�,.�,�.:' . ��< �, _ _ : � �� . � ��'-�� f �� MAY 2 3198$ �ITY �T�C�R��f�Y STATE OF MINNESOTA ) County of Ramsey ) ss. . CITY OF SAINT PAUL ) Z Albert B. Olson ....._... ,,.City Clerk of the � . . . . . . . . . .. . . . . . . . .. . ... City of Saint Paul, Minnesota, do hereby certify that Z have compared the attached copy of Council File ;Vo..87;681. as adopted by the City Council. .. . .. .Apri1 .28.. . . .. . . . . .. .19.88. . . and approved by the Mayor. . . .. . . .. . ..April 29,...._ . , . . . ..19.g8• . . with the original thereof on file in my office. � I further certify that said copy is a true and correct copy � ' of said original and the whole thereof. WITNESS my hand and the seal of the City of Saint Paul, Minnesota this . , . . ?3rd . . , daq of .. . . . ..Ma�: . ._. . . .A.D. 19.38 . . .. � � . . . . . . �-cC..r:�c�:'�4�: . �L`1.�..C-�.�� . .... . .. ... City Clerk. �� - . ...,. �.a.... , ) i1NK� �IM�NC[ COIIRC11 ��r�! � �.�.�.�CePARTM[NT GITY OF SAINT PAUL File N0. v� a•�u�. -w.,ro� PBB/City Attny. � � � (Jrdin�nce o�,nen��No.�dt. �4 ,� ��, Presented By � ��"i�.=} Referred To Committee: Date .� , Ou„_ t of Committee By Date An Ordinance amending Chapter 409 of the Saint Paul Legislative Code pertaining - to Intoxicating Liquor; nroviding - presumptive penalties for liquor licensed establishnents. THE COUNCIL OF THE .CITY OF SAINT PAU'L DOES ORDAIN: � Section 1 , That Chapter 409 of the Saint Paul Legislative Code is hereby amended so as to add the following new provisions thereto: Sec. 4A9-��- 409. 26 . Intoxicating liquor; adxe�se kea��ags; eene�e��exs��a�e�a��ess; presumptive penalties . � a) P�ur o�se. The purpose of this section is to . establisT a standard by which the .City Council determines the length of license suspensions; and revocations , ��aes-and�e�-�ke-g�ae�ag-e�-eead}� e�as t�pea-�ke-bt�s�aess-��eer�ses; and shall apply to all • on-sale and off-sale licensed premises . These � enalties are resumed to be a ro riate�'or ever case, owever t e ounci ma eviate t ere rom in � an in ividual case where t e Council in s and etermines that t ere exist substantia and com- pe in reasons ma in it more a ro riate to 0 so . . en eviatin rom t ese stan ar s t e Council sha � rovide written reasons whic s eci wh the pena ty se ecte was more appropriate. COUNCIL MEMBERS • • �� Na� � Requested by Department of: Dimond � . �� [n Favor co�»�� Rrttman �/ ��;� Against BY Sonnen Wilwn Form Appr ved by Cit Attorney Adopted by Council: Date � - � �- �'�i�� CertiEied Passed by Council Secretary BY B}� � Approved by Mayor: Date Approved by Mayor for Submission to Couneil By BY , � y �• • �� ` t . , �/�O -2- b) Pres tive enalties for violat�ions . Adverse � penalties or convictions or v o ations s a 1 be presumed as follows : � TYPE OF VIOLATION 1ST VIOLATION 2ND VIOLATION 3RD VIOLATION 1. Commi�ssion of Revocation NA NA a felony related to the licensed . . activity. - 2. Sale of Revocation NA NA alcoholic beverages while license is under ' suspension. 3. Sale of S Consecutive Revocation NA alcoholic Days Sus- bevexages to pension under-age person. 4. Sale of 5 Consecutive 15 Consecutive Revocation alcoholic beverage Days Sus- Days Sus- to intoxicated pension pension � person. 5 . After hours 3 Consecutive 9 Consecutive Revocation sale or display Days Sus- Days Sus- of alcoholic pension pension beverages . � ' 6. Refusal to � 5 Consecutive 15 Consecutive Revocation allow City Days Sus- Days Sus- inspectors or pension pension police admission _ to inspect premises . � � • 7 . Illegal 3 �Consecutive 9 Consecutive Revocation gambling on Days Sus- Days Sus- � �- � premises . pension. pension 8. Permit person 3 Consecutive 9 Consecutive Revocation � to leave premises Days Sus- Days Sus- with alcoholic pension pension beverage. . � �-�-� � � ; .. �� 6� � . , �r,s� � -3- � TYPE OF VIOLATION 1ST VIOLATION 2ND VIOLATION 3RD VIOLATION 9. Failure to 15 Consecutive 45 Consecutive Revocation make application Days Sus- Days Sus- for license pension pension � renewal prior to license expiration date. 10. Violations of . 5 Consecutive 15 Consecutive Revocation City ordinances Days Sus- Days Sus- . pertaining to pension pension fire or building or health codes. c) Computation of time. For the purpose of determining the number of occurrences of violations , the council shall consider a violation as a second occurrence if it occurred within 18 calendar months of the first violation; and shall . consider a violation as a third occurrence if it occurred within 30 calendar months of the second violation. d� E�-ga��e--eea��ae�s---�€-8-��eense-�e��e�-l�e�-been seke�t��ed-�er-aa-ad�e�se-l�ear�ag;-eet�rie��-aie�be�s-sl�a��-ae� d�sexss-�ke-��eease-�a��e�-Ea��k-eeek-e�ke�-e�-�a��l�-ax�-e� �l�e-�a��es-�a�e��ed-�r�-�l�e-aia��e�-t�a�ess-sr�el�-d�setssg�en eeet��s-ea-�ke-gxb��e-�eee��-dx��ag-�ke-gt�b��e-kea�}ags-e� : �ke-�a��e�-e�-dn��g-�ke-eet�e}�=s-�}xa�-�e��be�a��eas-e� �ke-�a��e�- e3 d) Other penalties . Nothing in this section shall restrict or limit the authority of the council to suspend up to 60 days , revoke the license, e� impose a civil fine not to exceed $2 ,000, to �im �pos'e coridit�i:ons or take any ottier � � adverse action �in accor ance wit�law,�e�-��e�a��ens-e� • seneerap �anee-�� -aa-agg �ea e-s�e�x�e;-��e-e�-e�d�aa.aee � — �e�a��xg-�e-e�eeks��e-be�e�ages; provided that the license holder has been afforded an o ortunit for a hearing in • the manner provided for in Section . of this Code. ' . -.- - �'d8 �-�-� `syw��- -,w:�oR'�`�• V 1 1-Y V t'' .7A 1 l�I"i rA U L File 1��. a t'�'Q 4 � . - - . . . . . 0r �ndnce o�inanceNO. ��6� . .. Presented By Referred To Committee: Date Out of Committee By Date � -4- _ � Section 2. This ordinance shall take effect and be in force thirty days from and after its passage, approval and publication. COUNCIL MEMBERS ` Yeas Nays Requested by Department of: - Dimond • � ��s In Favor. �,. . Goswitz Rettman ��;�� O Against BY Sonneo . `�'°"' APR Z 8 198$ Form App oved by ity Attorney Adopted by Council: Date ` � �ertiEied P �Council S t BY � i�-lo-�f By �pprove y Mayor te � �� Approved by Mayor for Submission to Council .- B BY p��isH� r�iAY 7 t988. c�N,►A� OE��w�wEN7 V ITY OF �A I NT YALT L 'Fite N0. ��'��3 sLVE• �w��Ow �� r�� Council Resolution Presented By � Referred To Committee: Date Ont of Committee By Date WHEREAS,� the City Council has determined that adverse - actions on Iicense matters could best be administered by relying upon an independent hearing examiner to hear the original pre- . sentation of evidence and to make findings of fact and conclusions of law, together with recommended sanctions to the Council for adverse action; now, ther�fore, be it RESOLVED, that in any adverse action as defined by the Legislative Code, Section 310.01 , which the Council may wish to initiate against any license holder and where there is a dispute as to the material facts underlying the violation of law the Council shall appoint an independent hearing examiner to make findings of fact, conclusions of law, and a recommended . sanction which will be presented to the Council and/or its appropriate committee for fina� action after a public hearing; and, be it FURTHER RESOLVED, that at the public hearing the Council or its Commit�ee may accept, re�ect or modify the hearing examin- er' s recommendations. The Council ' s or committee' s scope of review of the hearing examiner' s recommended findings of fact and conclusions of law shall be limited to whether legal errors were made or whether the tiecision was clearly erroneous given the evidence presented. The Council shall not entertain addition- � al testimony at the public hearing regarding the fact� as deter- mined by the hearing examiner. The Council would be, however, free to establish any sanctions it deemed proper based on the f.indings of fact made by the hearing examiner; and, be it � FURTHER RESOLVED, that in any adverse ac�ion pending before the Council , or a hearing examiner, Council Members are prohibited from receiving ex-parte contracts from any of the parties involved COUNrII. MEMBERS Requested by Dep�artment of: Yeas Nays , ' Dimond tro� Ia Favor � Goswiu � Rettman �� Against BY SOQAtR - WI�50f1 . Form Agproved City Attor y Adopted by Council: Date Certified Passcd by Council Secretary BY By , 1 ' Approved by Navor• Date Approved �y�layor for Submission to Coueci� • V By BY :.�r-. DE'Pn1�Tr[MT VITY OF �JAINT YAUL "�"" " .��a _,.,,..o� File N0. ��'y��l� . � � • Council Resolution . Presented By Referred To Committee: Date Out of Committee By Date in the adverse action. In addition, Council Members are pro— hibited from discussing the adverse action with each other except while on the re�ord during deliberations concerning that particular action. . 2, COUNCIL MEMBERS ' Requested by Department of: Yaas Nays ' • .' Dimoud �� [n Favor _ cos+i� Reqmae� ��,� �'� Against By Sonne�� _ VVilson . Adopted by Council: Date �R 3� ��v Form Approved b ity Attorney Certi(ied Pass by il Sec y BY By �� a�� _R ti�"�- / � . : �1Q Appro ed by 1�lavor: O �,. �� i�8 Approved by �oc for Submission to Councii By By Pi��iS�iED �:�R 9 i988_ � : � � } : 0rdinance � _ ��a�NO. � � .s-s p��c�a By � - . -•� ___�_ Refer:rd To Committee: Date - V�� Out of Committee By � Date � An Orciinance amending Section 310.05 of the Sairit Paul legisiative Code pertaining to - license procedures. THE COUNCIL�OF THE CJTY OF SAINT PAUL DOES ORDAIN: SectioR 1 . That Section 310.05 (c) of the Saint Paui legislative Code is hereby amended to read as foliows: (c) Where the cause for the adverse hearina is based •uaon a . violation of law and there is no dispute as to the facts under- lyinq the violation, the hearing shaii be heid by the ea�tnri�; wpteh she�� effard council 's cortmittee desianated to hear license matters. Otherwise the hearin4 shall be conducted before a hearinq examiner appointed bv the council for that purpose. The applicant or the licensee shall be provided an opportunity � to present evidence and argument as weil as meet adverse testimony or evidence by reasonabie cross-examination and rebuttal evidence. The eer,net} committee or hearin4 examiner may in its dis- cretion permit other interested persons the opportunity to present testimony or evidence or otherwise participate in such hearing. , : \ . � . _, COUNCII. MEMBERS Yeat Nays Requested by Depactment of: Dimond • �nt In Favoc Goswics Ret�an . ��;� Agai nst BY Sonneo Wiiwo Form Ap oved by Cit tomey Adopted by Council: Date — - Certified Passed by Council Secretary By � �� By Approved by Mayor• Date Approved by Mayor for Submissioa to Council By By __ ' �_ . _.� _. .._i' " .�11•i'�"�..�_�.�n� _.�_. r _ .�.�..�. �.. .y..� �. �._ �___�.��._, _.._.� . .. , .� _� _._.. _._ . r__. M . . � „• . . �, 6? / . I � . � . � �� /�/�V v . - �7.��9 � s�t�� z. That Section 310.05 of the Saint Paui Legislative Code is hereby amended 50 85 to �dd the foliowing new Subsections thereto to be numbered as 310.05 (c-1) and 310.05 (c-2): . . (c-1) Procedure; hearinc examiner. The hearina examiner shall hear all evidence as mav be cresented on behalf of the citv and the aaali- cant or 1 i censee, and sha 1 1 �resent to the een+n►��1cee Counc i 1 " written findinas of fact �nd conclusions of law toaether with a recommendation for adverse action. . The eon+n►�tlee Council shall consider the evidence contained in the record, the hearina examiner's recorm�ended findinas of fact and con- clusions, and shall not consider anv factuai testimonv not previousiv � submitted to and �considered bv the hearina examiner. The eon+m��tee . Council at a public hearin4 shall vrovide the aaplicant or licensee an opportunitv to aresent orai or written arauments alteaina error on the part of the examiner in the appiication of the law or interpretation of the facts, and to aresent testimonv related to the recommended adverse actio�. Upon conclusion of the hearina. and after considerin4 the record, the examiner's findinas and recommendations toaether with such additional arQUments and testimonv presented at the hearina. �he een�n+tttee aha�� sdbm�t ttz ftnd�ng�s CORG�ti�tOR9 eRd reeonweiende- ��en� �e the fd�� eoe+net�.- � �tpen �eeetpt of �he �emrt�tee� repert; �he Eeene�� she�� p�eee � tpe e+e��er dpen ��a �egd�e�� n�eettng egende e� Nhteh �tn+e the eetint� � she�� een�tder �he �eeor�d ef �he preeeedfng� �e�r�dtng �he ffindtr►g�; , eene�e�ton� end �eeenn+endet�en� sdbn�t�ed br the ejesn+tner end the een+n+t��ee.- Wr-�tten nettee of the n�ee�tng �he� be proatded �e the epp�teent or �tecn�ee.- �he eedne�� ha�� fin aeeerdenee N4�h �eM . the Council shall determine what, if anv, adverse action sha11 be taken, which action shall be bv resolution. The Council mav accept, re�ect, or modifv the recommendations of the hearina examiner or committee. - (c-2) Ex-parte contacts. If a license matter has been scheduled . for an adverse hearina, council members shall not discuss the � license matter with each other or with anv of the aarties or �intereste'd . persons invoived in the matter unless such discussion occurs on the pubJic record durinq the public hearin4s of the matter or durina the Council 's final deliberations of the matter. • • 2 . . , .-:_".. gile n U. � " � /' . • • • �Ordindn�e �- �iaanceNO. ��y . . . . . Presented By � Referred To Committee: Date Out of Committee By Date Section 3. � This ordinance shall take effect and be in force thirty days from and after its passage, approval a�d publication. COUNCII.MF.N • Rcquested by Department of: Yeas �� Nays �. o+:��:,.G�,rt� �_ In Favor � Rettms / `Sch�ib�l A gai nst BY Sonn�n T-�pN`j�av,p w++�e+�+. , -- �AY � 7 �p Form Appr d by City Atto ney Adopted by Council: Date ta . Certified P s e ou ci e By �• �� By . App ov May�r• Date ' �--wY �� 1� Approved by Mayor for Submission to Council BY � BY ��p MAY 2 81988 . . �'�'� �� STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of the RESPONDENT'S NOTICE On-sale Liquor License OF MOTION AND MOTION for the Belmont Club At the Hearing eurrently scheduled in the above-entitled matter beginning at 9: 30 a.m. on May 2�, 1988, or as soon thereafter as counsel may be heard, in the �#th Floor Auditorium of the St. Paul Publie Library, 90 West Fourth Street, St. Paul , Minnesota, before The Honorable Carol Grant, Administrative Law Judge, Respondent, through his attorneys, Coehrane & Bresnahan, P.A. , 24 East Fourth Street, St. Paul, Minnesota, will move the Tribunal as follows: 1 . To dismiss these proceedings for failure to state a claim upon whieh relief can be granted; and, 2. To dismiss all Counts contained in the May 3, 1988 Notice of hearing for laek of subject matter �urisdiction. If the Motion(s) to Dismiss are denied, then to move the Tribunal to stay these proceedings pending an immediate appeal and to certify, as important and doubtful, the constitu- tional questions raised in the aecompanying memorandum, or, in the alternative, to stay these proceedings pending a final determination of the criminal proceeding. , E If the Motion(s) to Dismiss and/or the Motion to Stay are denied, then to move the Tribunal, as follows: 1 . To establish the burden of proof and �he evidentiary standard to be utilized in these proceedings; and, 2. To limit the seope of admissible evidenee. In addition, counsel will move the Tribunal for reasonable costs, expenses and attorneyst fees incurred in bringing these Motions. These Motions are based upon the First, Fifth and Fourteenth Amendments to the Constitution of the United States; upon Article 1 , Sections 3 and 7 of the Constitution of the State of Minnesota; upon Minnesota Statutes §§3�40A et s�ce . and 36�4 et s�ce . ; upon Rule 103.03(h) of the Minnesota Rules of Civil Appellate Procedure; upon Rules 12.02( 1 ) and (5) of the Minnesota Rules of Civil Procedure; upon Rule 1400.6600 of the Rules of the State Office of Administrative Hearings; upon the accompanying Memorandum in Support of Respondent' s Motions; and upon the arguments of counsel. Respectfully submitted, COCHRANE & BRESNAHAN, P.A. By ame . Bresnahan Atty. I.D. No. 11307 Mary F. Seymour Atty. I .D. No. 9945�+ 24 East Fourth Street St. Paul, MN 55101 (612) 298-1950 Dated this �� day of May, 1988. -2- t2EC'p J U N 2 01988 °S��'�g� CITY OF SAINT PAUL s.`�,rr o. "3'~0 •.�i, �; �r, OFFICE OF 7HE CITY ATTORNEY , ��ii u�� ,� ~%� 1O �01 �< EDWARD P. STARR, CITY ATTORNEY ;m ``r� '•°•�,.`� 647 City Hall, Saint Paul, Minnesota 55102 umam:-- 612-298-5121 GEORGE LATIMER MAYOR June 17 , 1988 Ms . Carol Grant Administrative La�� Judge 2404 Stevens Avenue South Minneapolis , MN. 55404 RE: In the Matter of the On-Sale Liquor License of the Belmont Club Dear Ms . Grant : In my brief at pp . 6-7 concerning burden of proof, I neglected to cite In re Kaldahl, 418 N.W. 2d 532 , 535 (Minn. App . 1988) , for the proposition that preponderance of the evidence is the correct standard for proof of facts in administrative hearings . Kaldahl also cites to the administrative rules and to In re Sch—�te, 375 N.W. 2d 509 , S14 (Minn. App . 1985) . Very truly yours , �. PHILIP . BYRNE Assistant City Attorney cc : James R. Bresnahan, Esq. ��N� ��U COCHRANE & BRESNAHAN, P.a. �UN �� 1988 ATfORNEYS AT LAW ,��'�7�V� �.y 11 24 EAST 4th STREET I'1I�R��C SAINT PAUL, MINNESOTA 55101-1099 JOHN A.COCHRANE JAMES R. BRESNAHAN TELEPHONE STEWART C. LOPER 612/298-1950 MARY F.SEYMOUR CABLE ADDRESS:COBRA RONALD D.ALLEY' BRIAN N.TODER" 'Also admitfed in Texas "Also admitted in Colorado June 29, 1988 Administrative Hearings OPfice 500 Flour Exehange Building 310 - 4th Avenue South Minneapolis, MN 55415 Attention: Office of Hearing Examiner Re: In the Matter of the On-sale Liquor License for the Belmont Club Dear Sir or Madam: Enclosed herewith please find a copy of Respondent� s Reply Memorandum for the above-entitled matter. Yours truly, COCHRANE & BRESNAHAN, P.A. BY= �Yl � . �.c.�r�n�r��Ic_ � Mary F. Seymour MFS/plc Enclosure � , �� r ��°� � STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of the On-sale Liquor License for the Belmont Club RESPONDENT'S REPLY MEMORANDUM I . INTRODUCTION The purpose of this Memorandum is to reply to the City' s Response to Respondent� s Memorandum in Support to Pretrial Motions--not to reply to the City� s Final Argument. We have attempted to address only those issues not addressed previously by the Respondent. It is particularly important to submit Parts A throu�h B of this Memorandum because this Tribunal has requested, by letter received June 27, 1988, the complete Opinion letter dated September 14, 1987 whieh sets forth, in addition to the definition of "licensed premises" , a constitutional analysis that is simply incorrect. The September 14, 1987 opinion letter was submitted after Coehrane & Bresnahan, P.A. , on behalf of Respondent and others, submitted an InPormational Memorandum to the City of St. Paul coneerning the constitutionality of Mr. Wilsonts proposed amendments to Chapters 409 and �10 of the St. Paul Legislative Code, which would have made the "viewing" of nude daneing "from the licensed premises and take place (i ) on premises ad�acent. . .to the licensed premises, or (ii) on premises located within the same building or structure as the licensed premises. . ." an ordinanee violation. In response to the September 1�, 1987 Opinion letter, Coehrane & Bresnahan, P.A. , on behalf of Respondent and others, submitted a Supplemental InPormational Memorandum on the eonstitutionality of the proposed amendments �o the City. After a publie hearing, during which an Assistant City Attorney admitted that the Crownover decision had been overruled (inPra at 12) , Mr. Wilson withdrew his proposed amendments. ,��° ,�. _.,�'��°�:� � Parts A and B are a synthesis of those two prior memoranda and are submitted in reply, not only to the City� s Response to our Pretrial Motions, but also in reply to those parts of the September, 1987 Opinion letter other than the part dealing with the definition oP licensed premises. II . ARGUMENT The Assistant City Attorney overstates and misstates the legal authority at pages 4 throt�gh 6 in ��Part A.2. Laek of Sub�ect Matter Jurisdiction" in the City of Saint Paul Brief in Response to Motions and Final Argument." The Assistant City Attorney� s argument is deficient in two respeets. Firstlq, he fails to adequately distin�uish between the Federal and State Constitutions. Secondly, he fails to point out that the Koppinger dietim is no longer "good law" . Finally, the remaining cases and statutes cited by the Assistant City Attorney are inappropriate to the present proceedings. A. THE FIRST AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION ESTABLISH AN ABSOLUTE MINIMAL LEVEL OF PROTECTION FOR THE FUNDAMENTAL FREEDOM OF EXPRESSION. Although California v. LaRue, 409 U.S. 109 ( 1972) , New York State Liquor Auth. v. Bellanea, �52 U.S. 71� ( 1981 ) (per curiam) ("Bellanca I") and City of Newport v. Iacobucci , U.S. , 93 L.Ed.2d 33� ( 1986) (per curiam) may stand as authority to uphold a narrowly drawn liquor ordinance regulating protected expression within1/ the licensed premises against �� However, the evidence in the present proceedings establishes that the alleged violation did not oecur within the licensed premises. -2- constitutional ehallenges based entirely upon the First and Fourteenth Amendments to the Federal Constitution, none of these cases has held that a munieipality is free from the limitations placed upon its power to regulate liquor by the State Constitution. To the contrary, the power of a municipality to regulate the sale and consumption of liquor arises, not from Seetion 2 of the Twenty-First Amendment2� to the Federal Constitution, but from the inherent police power of the state, as a sovereign, that has been conferred, upon the municipality, by statute (see Minn. Stat. §340A et seq. ) . Bellanea v. New York State Liquor Authority, 5� N.Y.2d 228, ��5 N.Y.S.2d 87, �29 N.E.2d 765 ( 1981 ) , cert. denied, �56 U.S. 1006 ( 1982) ("Bellanea II��) ; George Benz & Sons v. Ericson, 227 Minn. 1 , 34 N.W.2d 725, 730 ( 19�8) . 3� Our system of state and federal government is founded upon the precept that the federal government is a government of limited, delegated and specified powers. Any power or right that is not specifically enumerated in the Federal Constitution remains in the states or in the people. The Ninth Amendment to the Federal Constitution guarantees that: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. 2� "The transportation or importation into any State, Territory or possession of the United STates for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." U.S. CONST. amend. XX1 , §2. 3/ Iacobucci , 93 L.Ed.2d 338 is not to the contrary. The ehallenge was under the First and Fourteenth Amendments. The Supreme Court simply determined that there was not federal constitutional significance to whether a State delegates the power to regulate liquor. -3- The Tenth Amendment elearly provides that: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respeetively, or to the people. The Fourteenth Amendment to the Federal Constitution guarantees '�a federal floor of proteetion"�� for fundamental individual freedoms. A state may not restrict these fundamental Preedoms to the extent that they fall below this "federal floor" . The reverse, however, is not true. Even though the Federal Constitution establishes minimal guarantees for the Pundamental individual freedoms, it does not restrict a state from providing broader protections to its citizens. As The Honorable William J. Brennan, Jr. , Associate Justice to the United States Supreme Court, has explained: While the Fourteenth Amendment does not permit a state to fall below a common national standard, above this level our federalism per- mits diversity. As tempting as it may be to harmonize results under state and national constitutions, our federalism permits state courts to provide greater proteetion to individual eivil rights and liberties if they wish to do so. The Supreme Court has no con- ceivable justifications for interfering in a case plainly decided on independent and adequate state grounds.5� Therefore, a municipality may legitimately exereise its police power under the Federal Constitution, but still �� Brennan, An Invitation to State Courts, 13 Litigation 5, 70 (Summer, 1987�• 5/ Id. -4- violate the freedom of expression guaranteed under the State Constitution.6� Thus, the Twenty-First Amendment to the Federal Constitution simply repealed the Eighteenth Amendment (Prohibition) and returned the power to regulate liquor within their borders to the states, while providing that the states should not be unduly burdened by the Federal Constitution. See 324 Li uor Corp, v. Duffy, U.S. , 93 L.Ed.2d 667, 679 ( 1987) ("Although §2 directly qualifies the federal commeree power, the Court has rejected the view ' that the Twenty-first Amendment has somehow operated to "repeal" the Commerce Clause wherever regulation of intoxicating liquors is concerned. � [Citations omitted]" ) ; Hostetter v. Idlewild Liquor Corp. , 377 U.S. 324 ( 1964) (Commerce Clause) . Compare State Board v. Youn ' s Market Co. , 299 U.S. 59 ( 1936) with Wiseonsin v. Constantineau, 400 U.S. 433 ( 1971 ) (Fourteenth Amendment) . This does not and cannot mean, however, that the Twenty-First Amendment expanded the power of the States to regulate liquor in disregard of the rights guaranteed to the people under their respeetive State Constitutions. The Federal Constitution cannot confer a power that it never had. Furthermore, the Minnesota Supreme Court has long recognized that the police powers of a state cannot be exercised 6� As Associate Justice Brennan has observed, "[b]etween 1970 and 198�, state courts, inereasingly reluetant to follow the federal lead, handed down more than 250 published opinions holding that the constitutional minimums set by the United States Supreme Court were insufficient to satisfy the more atringent requirements of state constitutional law." [Citation omitted. ] Brennan at 6. -5- ��... / �� in derogation of a fundamental right reserved to the people by the State Constitution. E.�. , George Benz & Sons, 3u N.W.2d at 731 ( 19�8) ; State v. Corbett, 57 Minn. 345, 3�9-350, 59 N.W. 317, 318 � 189�) . Article 1 , Section 3 of the Minnesota Constitution places such a limitation upon the unfettered exereise of the police power when it guarantees: The liberty of the press shall forever remain inviolate, and a11 persons may freely speak, write and publish their sentiments on all subjects, being responsible Por the abuse of such right. MINN. CONST. art. 1 §3. The Assistant City Attorney overstates the implications of Koppinger v. City of Fairmont, 311 Minn. 186, 248 N.W.2d 708 ( 1978) in that he fails to distinguish between the probable result of a current challenge under State, as opposed to Federal , constitutional law. Koppinger does not stand for the proposition that the Twenty-First Amendment to the Federal Constitution, as interpreted by the United States Supreme Court in California v. LaRue, 409 U.S. 109 ( 1972) and its per curiam progeny, 7� limit the freedom of expression guaranteed by Article 1 , Seetion 3 of the Minnesota Constitution. The Minnesota Supreme Court simply over- turned the Fairmont ordinance because it was overbroad under the Federal Constitution. Because the Fairmont ordinanee unconstitu- tionally infringed upon the freedom of expression guaranteed by 7� New York State Liquor Auth. v. Bellanea, �452 US 71�4 ( 1981 ) ; �Cit� of Newport v. Iacobucci U.S. , 93 L.Ed.2d 33� ( 1986) . — – -6- the Federal Constitution, it automatically violated the Minnesota Constitution. Supra at 2-6. Thus, the most that ean be said about Koppinger is that it supports our overbreadth ehallenge as set forth in our Memorandum in Support oP Pretrial Motions at 13-14. Similarly, Koppinger does not stand for the proposition that somehow the Twenty-First Amendment and the LaRue decision miraculously transform a regulation that operates as a prior restraint upon the content of protected expression into some type of time, place and manner restrietion under the Minnesota Constitution. In LaRue, the United States Supreme Court reasoned that because the First and Twenty-First Amendments are both "parts of the same Constitution[ , ] . . .eaeh must be eonsidered in the light of the other, . . ."$�. The United States Supreme Court, in giving effeet to each part of the Federal Constitution, did not hold that the Twenty-First Amendment abrogated the freedom of expression guaranteed by the First Amendment. The Supreme Court merely held that the Twenty-First Amendment ereated a presumption of validity of a regulation under the Federal Constitution. As Justiee Rehnquist explained: Given the added presumption in favor of validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution. Emphasis added. 8� LaRue, 409 U.S. at 115 quoting Hostetter v. Idlewild Liquor Corp. , 377 U.S. 324, 332 ( 1964) (discussing the relation- ship of the Commerce Clause and the Twenty-First Amendment) . -7- LaRue, �09 U.S. at 118-19. Aecord, City of Newport v. Iacobucei , �79 U.S. , 93 L.Ed.2d 33�, 3�1 ( 1986) ,9/ The Minnesota Constitution eontains no provision that is comparable to the Twenty-First Amendment to the Federal Constitution. Thus, Article 1 , Seetion 3 of the Minnesota Constitution proteets the fundamental right of the people to free expression, without governmental restriction at least10/ to the same extent as do the First and Fourteenth Amendments to the Federal Constitution--without regard to the impaet of the Twenty-First Amendment. The exercise of the police power by the State Legislature is necessarily subjeet to the struetures of our State Constitution, of which the guarantee of freedom of expression found in Section 8 of Artiele I is controlling in this instanee. The Supreme Court has never espoused the proposition that the Twenty-First Amendment of the Federal Constitution confers a power on the States which is superior to or free from the constraints of their own Constitutions, and nothing cited by the dissenters is to the contrary. Ballanea II, �29 N.E.2d at 768-69 �New York State Constitution) . Because there is nothing in the Minnesota Constitution that 9/ The Court of Appeals "did not rech the state law question. . . ." Therefore, the Supreme Court "express[ed] no opinion on [the] issue." Iacobucei , 92 L.Ed.2d at 339 n. 6. Aecord 324 Liquor Cor . , 93 L.Ed.2d at 684-688 (dissenting opinion�. 10/ Although the Minnesota Constitution cannot restrict the fundamental freedoms guaranteed under the Federal Constitution (See Landmark Communications, Ine. v. Virginia, �35 U.S. 829 [ 197$ A confidentiality provision in the Virginia Constitution held to violate the First Amendment to the Federal Constitution] ; Matter of Welfare of S.L.J. , 263 N.W.2d 412, 416 [Minn. 19787 ) , it can guarantee broader protections of those fundamental freedoms. -8- I �, �%� - ��,��% ,� would require the Minnesota Courts to engage in any balancing of the freedom of expression guaranteed by Artiele 1 , Seetion 3 against some other provision in the Minnesota Constitution, there is nothing in the Minnesota Constitution that would allow the Minnesota Courts to ereate a eonstitutional presumption similar to that created in LaRue. This difference between the Federal and State Constitutions is elearly demonstrated by the divergent results aehieved by the New York owners of bars, restaurants and nightclubs when they ehallenged a New York statute prohibiting topless daneing under both the Federal and State Constitutions. In New York State Li uor Auth. v. Ballanca, 452 U.S. 71�4, 7�$ � 1981 � ' the United States Supreme Court, when diseussin g the validity of the statute under the Federal Constitution, held that: Given the "added presumption in favor of state regulation" conferred by the Twenty-first Amendment, [citing LaRue] , we cannot agree with the New York Court of Appeals that the statute violates the United States Constitution. Emphasis added. Upon remand by the United States Supreme Court to the New York Court of Appeals, however, the New York Court held, in Ballanca v. New York State Li uor Autho_�� 5t� N.y.2d 22g� 445 N.Y.S.2d 87, �29 N.E.2d 765 ( 1981 ) , cert. denied, 456 U.S. 1006 ( 1982) , that the New York statute violated the Constitution of the State of New York because the New York Constitution contained no provision that was comparable to the Twenty-First Amendment. Moreover, other states have adopted this line of consti- tutional analysis when similar statutes or ordinances were challenged under their respective State Constitutions. -9- , �'� - r'�'<� � would require the Minnesota Courts to engage in any balaneing of the freedom of expression guaranteed by Artiele 1 , Seetion 3 against some other provision in the Minnesota Constitution, there is nothing in the Minnesota Constitution that would allow the Minnesota Courts to ereate a constitutional presumption similar to that created in LaRue. This diPferenee between the Federal and State Constitutions is clearly demonstrated by the divergent results aehieved by the New York owners of bars, restaurants and nightclubs when they ehallenged a New York statute prohibiting topless dancing under both the Federal and State Constitutions. In New York State Liquor Auth. v. Ballanca, 452 U.S. 714, 718 ( 1981 ) , the United States Supreme Court, when discussing the validity of the statute under the Federal Constitution, held that: Given the "added presumption in favor of state regulation" conferred by the Twenty-first Amendment, [citing LaRue] , we cannot agree with the New York Court of Appeals that the statute violates the United States Constitution. Emphasis added. Upon remand by the United States Supreme Court to the New York Court of Appeals, however, the New York Court held, in Ballanca v. New York State Liquor Authority, 5� N.Y.2d 228, 445 N.Y.S.2d 87, �429 N.E.2d 765 ( 1981 ) , cert. denied, 456 U.S. 1006 ( 1982) , that the New York statute violated the Constitution of the State of New York because the New York Constitution contained no provision that was comparable to the Twenty-First Amendment. Moreover, other states have adopted this line of consti- tutional analysis when similar statutes or ordinanees were challenged under their respective State Constitutions. -9- The Oregon Court of Appeals, while invalidating the portion of the Portland ordinanee which prohibited nude daneing in bars, explained: Other state courts have invalidated prohibitions against nude entertainment in taverns under the free speech pro- visions of their state constitutions. [Citations omitted. ] Those eourts have reasoned that, because the Twenty-First Amendment does not apply to enehanee the state� s power to regulate expression in liquor establishments as against the state' s own free expression guarantees, prohibitions against nude entertainment are invalid, even if limited to taverns. We concur in that analysis. The Twenty- First Amendment does not augment the state' s power to regulate expression in establishments licensed to serve liquor as against Artiele 1 , Seetion 8. Emphasis in original . Sekne v_. Portland, 81 Or. App. 630, 726 P. 2d 959, 963-64 ( 1986) . In Cabaret Enterprises, Ine. v. Alcoholic Beverages Control Commtn, 393 Mass. 13, 468 N.E.2d 612, 614 ( 198u) , the Massachusetts Supreme Judicial Court held that a statute which provided for the revocation of plaintifPst all-aleoholie beverage licenses because the licensees violated a statutory prohibition against nudity on the licensed premises was unconstitutional under the Constitution for the State of Massachusetts. Similarly, the Supreme Court of Alaska has invalidated an ordinanee whieh prohibited nudity in bars on the basis of the Alaska Constitution. Miekens v. Kodiak, 640 P.2d 818 (Alaska 1982) . As the Alaska Supreme Court explained: The Alaska constitution contains no elause similar to the twenty-first amendment which might be said to -10- justify prohibiting otherwise proteeted forms of expression where liquor is sold. Our state constitution, like that of Massaehusetts, "draws no distinetion between free speeeh in a bar and free speech, on a stage, and no provision of our Constitution gives a preferred position to regulation of aleoholic beverages." Commonwealth v. Sees, 374 Mass. 532, 373 N.E.2d 1151 , 1155 ( 1978) . Because of the Twenty- First Amendment, the federal constitution does not prohibit the City from restricting, in places where liquor is sold, forms of expression which would otherwis� be protected under the First Amendment; the state constitution, however, does contain such a prohibition. We therefore rejeet the LaRue rationale on state constitutional grounds. [Footnotes omitted. ] Id. at 821 . The Minnesota Supreme Court recognized that the fundamental freedoms guaranteed by the Minnesota Constitution are not limited by the Twenty-First Amendment when Justice Rogosheske explained: We are mindful that the Twenty-First Amendment does not limit the scope of equal-proteetion and due process guarantees of the Minnesota Constitution. Federal Distillers, Ine. v. State, 30� Minn. 28, 229 N.W.2d 1��, 155, appeal dismissed, �23 U.S. 908 ( 1975) . It eannot, there- fore, be logically argued that the Twenty-First Amendment to the Federal Constitution should impact any differently upon the fundamental right of freedom of expression that is guaranteed by Artiele 1 , Section 3 of the Minnesota Constitution than it does upon the fundamental rights of equal protection and due process as guaranteed by the Minnesota Constitution. -11- ��`. ��,� B. THE CITY�S ARGUMENT AT �4-6 LACKS A SOFFICIENT LEGAL BASIS The Minnesota Courts would not and could not uphold adverse action under Counts 3 and 4 on the basis of the Koppinger dictum because the authority cited by the Court to support this dietim is no longer "good law" or the deeisions rest exclusively upon the Federal Constitution. The Minnesota Supreme Court first cited Seattle v. Hinkley, 83 Wash. 2d 205, 517 P.2d ( 1973) as authority to support its dietum. 12� The Hinkley Court relied upon Crownover v. Musick, 509 P.2d 497 (Cal . 1972) in reaching its decision. However, the California Supreme Court overruled Crownover in Morris v. Municipal Court for San Jose-Milpitas, 32 Ca1. 3d 553, 186 Cal . Rptr. �494, 652 P . 2d 51 , 58 ( 1982) 13/ and specifically disapproved lower court decisions whieh relied upon the Crownover decision. �� As the Morris Court explained: Both Crownover' s alternative holdings that nudity in dance is conduet and, as such, beyond First Amendment pro- tection, or that publie opposition to 12� Koppinger, 248 N.W.2d at 713. 13/ ��We conclude that the analysis in Crownover is no longer viable, and declare that, to the extent that it is ineonsistent with the present opinion, Crownover v. Musick, supra, 9 Cal . 3d �405, 509 P.2d 497, is overruled." �� Morris, 652 P.2d at 58, n. 13. -12- nude entertainment generates a substantial state interest in its suppression, also erumble under the foree of later decisions. Id. at 55. The Minnesota Supreme Court next cited Longbridge Investment Co. v. Moore, 23 Ariz. App. 353, 533 P•2d 564 ( 1975) as authority to support the Koppinger dietum. The Longbridge Court based its opinion upon that theory that nude daneing is merely conduct--not expression. The Courts have soundly re�eeted this theory. Schad v. Mount Ephraim, �52 U.S. 61 , 66 ( 1981 ) ("Nor may an entertainment program be prohibited solely because it displays �he nude human figure. ' [N]udity alone' does not place otherwise protected material outside of the mantle of the First Amendment . [Citations omitted. ] Furthermore, . . . , nude daneing is not without its First Amendment proteetions from ofPicial regulation." ) ; Doran v. Salem Inn, Inc. , �22 U.S. 922, 932 � 1975) ("Although the customary �bar room� type nude dancing may involve only the barest minimum of proteeted expression, we recognized in California v. LaRue [citation omitted] , that this form of entertainment might be entitled to First and Fourteenth Amendment proteetion under some cireumstances." ) ; Erznoznik v. City of Jaeksonville, 422 U.S. 205, 213 ( 1975) �"Clearly all nudity cannot be deemed obscene even as to minors.�' ) ; California v. LaRue, 409 U.S. 109, 118 ( 1972) �"While we agree that at least some of the performanees to which these regulations address themselves are within the limits of the constitutional proteetion of freedom of expression, . . .") ; Cabaret Enterprises, Inc. v. Aleoholie Beverages Control Comm�n, 393 Mass. 13, 468 -13- �%� ..,.�`� ,�'' � N.E.2d 612, 613 ( 198�) ("The United States Supreme Court has recognized nude daneing as a form of expression that is entitled to some measure of proteetion under the First and Fourteenth Amendments to the United States Constitution") ; Morris v. Municipal Court for San Jose-Milpitas, 32 Ca1 .3d 553, 186 Cal . Rptr. �494, 652 P.2d 51 , 57 ( 1982) �"A ban on nude daneing eannot be sustained on the theory that it regulates only conduet and does not impinge upon proteeted speech. Nonobscene nude dancing cannot be barred without, in some cases, infringing upon constitutionally proteeted expression." ) ; Miekens v. Kodiak, 640 P.2d 818, 820 (Alaska 1982) ("Dancing, ineluding nude dancing, is a constitutionally protected form of expression under the first amendment to the United States Constitution.'� ) ; Koppinger v. City of Fairmont, 311 Minn. 186, 248 N.W.2d 708, 712 n. 3 ("Nudity in and of itself is not obseene. ") ; City of Roehester v. Carlson, 294 Minn. �417, 202 N.W.2d 632, 633-3� � 1972) (" . . .the portrayal of nude persons has been held to enjoy First Amendment proteetion.") ; State v. Turner, 382 N.W.2d 252, 25� n. 1 (Minn. Ct. App. 1986) , reh�� denied, (Minn. Ct . Apr. 18, 1986) ("Nudity in artistic expression is protected by the Pirst and fourteenth amendments.��) ; Sekne v. Portland, 81 Or. App. 630, 726 P.2d 959, 962 ( 1986) ("The lesson of Gatewood is that nude conduct can be ' expressiont within the meaning of Article 1 , Section 8. [Citations omitted. ] Moreover, danee is protected by Artiele 1 , Section 8. Nudity alone does not take danee out of the realm of proteeted expression.") . Therefore, the Minnesota Courts would no longer rest a decision upon cases such as Longbridge. -14- The Minnesota Supreme Court finally15� cited Paladino v. City of Omaha, 471 F.2d 812 (8th Cir. 1972) as authority for the Koppinger dietum. Paladino contained no state constitutional ehallenge. The decision rested entirely upon the impact of the presumption ereated by the United States Supreme Court to give effeet to both the First and Twenty-First under the First Amendments to the Federal Constitution. Because no such presumption is possible under the Minnesota Constitution (supra at 2-11 ) , the Minnesota Courts would not consider the case as sufficient authority to uphold adverse aetion against a ehallenge under the Minnesota Constitution. Finally, the Assistant City Attorney overstates or misstates the remaining cases cited at 4-6 of his Memorandum, as follows: 1 . Blatnik Co. v. Ketola, 587 F.2d 379 (8th Cir. 1978) contained no state constitutional challenge. 2. In Antonts, Ine. v. City of Minneapolis, 375 N.W.2d 50�, 508-509 (Minn. App. 1985) , the Court of Appeals simply did not deal with the State Constitution or the difference between the State and Federal Constitution. The Court of Appeals just cites the LaRue decision for the proposition that "atate and local governments may totally prohibit nudity in li uor establishments, even though the same aetivities would enjoy first amendment proteetions if conducted elsewhere." Anton� s, 375 N.W.2d 15/ The Court also cites Doran v. Salem Inn, Ine. �22 U.S. 922 ( 1975) as a "See, also" cite, but does not place mueh relianee thereon. The Minnesota Supreme Court recognized that the United States Supreme Court had not decided the issue. Furthermore, there was no state constitutional ehallenge in Doran; it was decided exelusively upon a federal basis. -15- at 509. Emphasis added. The Court of Appeals then cited Koppinger for the proposition that "[t]he Minnesota Supreme Court has reeognized the same distinetion. " Id. Therefore, the most that can be said for the Anton' s decision is that it recognizes the effeet of the presumption ereated by the Twenty-First Amendment upon the First Amendment to the Federal Constitution and that it recognizes that that presumption only has effect within the licensed premises. If the expression occurs outside of the licensed premises, as it does in the present action, the regulation is overbroad even under the First Amendment. Koppinger, 248 N.W.2d at 715-16. For the foregoing reasons, the Assistant City Attorney� s analysis at 4-6 lacks a sufficient legal foundation. C. THE REMAINING CASES AND STATUTES CITED BY THE CITY ARE INAPPOSITE TO THE PRESENT PROCEEDINGS. The remaining cases and statutes cited by the Assistant City Attorney in his Memorandum at 1-7 are inapposite to these proceedings as follows: 1 . In Moskovitz v. City of Saint Paul , 218 Minn. 5�3, 16 N.W.2d 745 ( 194�) ; Hymanson v. City of Saint Paul, 329 N.W.2d 324 (Minn. 1g83) ; and Miller v. City of Saint Paul , 363 N.W.2d 806 (Minn. App. 1985) the "violations" all occurred "within the licensed premises." 2. The Assistant City Attorney cites Godfather, Ine. v. City of Bloomington, 375 N.W.2d 68 (Minn. App. 1985) on the issue -16- of "laek of good moral charaeter�� . City Memorandum at 3. This case is inappropriate to be present proceedings because: A. The Applicant in Godfather made no freedom of expression or due process elaims based upon overbreadth or upon laek of aseertainable standards as Respondent has in the present proceeding (Respondent' s Memorandum in Support of Pretrial Motions at 7-20) . B. The Applicant was seeking a new liquor license; he was not seeking to renew a liquor license and the City was not seeking adverse action against an existing license. There is no property right in an inactive (or not previously granted) liquor license. Country Liquors, Inc. v. City Council of the City of Minneapolis, 26� N.W. 2d 821 (Minn. 1978) . However, as in the present cireumstanees, where the applicant has an existing license and has invested "substantial amounts of resources," the applicant is "entitled to a reasonable expeetation of the continuing benefit conferred by a license." Tamarac Inn, Ine. v. City of Lon Lake, 310 N.W.2d �7�, �77 (Minn. 1981 ) , See also Respondent' s Memorandum in Support of Pretrial Motion at 7. 3. The convictions discussed by the Minnesota Supreme Court in Peterson v. Minneapolis City Couneil, 27� N.W.2d 918 (Minn. 1979) in relation to Minnesota Statutes §364.01 et s�ce . -17- � �- i�'� � were the Applicant' s convietions. There was no evidenee that Mr. Fan or MFL, Inc. was convicted of anything. Contrary to the Assistant City Attorney� s assertion at p. 7 of his Memorandum, Exhibit 5 formed the alleged factual basis for the felony eharges currently pending against Mr. Fan. As such, it fits within Minn. Stat. §13.82(2) (e) as " . . .other legal basis for aetion; §13.82(2) (1) "The manner in which ageneies received information that led to the arrest. . ."; and §13.82(�4) (f) "A brief faetual reconstruction of events associated with the action[ ]n . Therefore, even under the Assistant City Attorney� s analysis, Exhibit 5 is not admissible under Minnesota Statutes Chapter 36�4. III. CONCLUSION For the foregoing reasons, this Tribunal must deny the City� s request for adverse action against Mr. Fan or the license held by MFL, Inc. Respeetfully submitted, COCHRANE & BRESNAHAN, P.A. gY _ JA S R BRESNAHAN, .D. �11307 MA Y F SEYMOUR, I.D. �99454 2� East Fourth Street St. Paul , Minnesota 55101-1099 (612)298-1950 ATTORNEYS FOR RESPONDENT Dated: June 29, 19$$. -18- ►�EC'D �U N 2 01988 ��- /�� COCHRANE & BRESNAHAN, P.A. ATTORNEYS AT LAW 24 EAST 4th STREET SAINT PAUL, MINNESOTA 55101-1099 JOHN A.COCHRANE JAMES R. BRESNAHAN TELEPHONE STEWART C. LOPER 612/298-1950 MARY F.SEYMOUR CABLE ADDRESS:COBRA RONALD D.ALLEY' BRIAN N.TODER" 'Also admitted in Texas "Also admitted in Colorado June 17, 19$8 The Honorable Carol Grant Hearing Examiner Minnesota State Office of Hearing Examiners 240� Stevens Avenue South Minneapolis, MN 55�0� Re: In the Matter of the On-Sale Liquor License for the Belmont Club Dear Ms. Grant: Enelosed herewith and served upon you please find Respondent' s Final Argument for the above-entitled matter. A eopy of this has also been served on Phil Byrne, Assistant City Attorney, on this date. Yours truly, COCHRANE & BRESNAHAN, P.A. By: ,�� G�� Mary F. Seymour MFS/ple Enelosure � �'- o�� , �_ # STATE OF MINNESOTA OFFICE OF THE ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of the On-sale Liquor License for the Belmont Club RESPONDENT'S FINAL ARGUMENT � F INTRODUCTION Respondent hereby rePers to all the arguments contained in Respondent� s Memorandum in support of the Pretrial Motions and incorporates them by referenee as if fully set forth herein, exeept for Section V.B. at page 32-33, whieh is moot. Because those arguments have been set forth previously, this argument will coneentrate on the questions raised by this Tribunal and a discussion of the evidence. ARGUMENT THE LICENSED PREMISES DO NOT INCLUDE THE DANCE STUDIO OR THE PARKING LOT Minnesota Statute §340A. 101 ( 15) defines '�lieensed premises" as "the premises deseribed in the approved license application. �� Minnesota Statute §3�OA.�10(7) states: "A retail lieense to sell any aleoholie beverage is only affective for the compaet and contiguous space specified in the approved lieense application. Similarly, Seetion 409.06(5) of the St. Paul Legislative Code defines licensed premises by stating, in relevant part that: No "on-sale" . . .license shall be effective beyond the compact and conti�uous space named in sueh license and for whieh the same was granted. . . . All licenses granted hereunder shall set forth the exaet location within the building strueture where sueh sales may be made and no sale shall be permitted except in that part of the premises defined in the license. . . . � t A. Dance Studio.--Plaintiff' s Exhibit 6 establishes that the address of the licensed premises is "615 University Avenue" and that liquor is to be served only in the "main bar area." Furthermore, the testimony establishes, beyond a reason- able doubt, that the dance studio is not part of the licensed premises as follows: 1 . The dance studio has a separate address, a separate entrance and there is no aecess from the Belmont Club. For example: A. Ms. Weinhandl: Q. "And the other address is �90 North Dale, isn� t it?" A. "I believe so, yes." Q. "So that the address of the licensed premises and the address of where the dancers are, is 2 separate addresses?'� A. "Yes, it is." Tr.p. 233 1. 10-1�. B. Officer Ro ers (while diseussing Plaintifffs Exhibit . Q. " . . .So there' s a separate entrance into this compound here from the Belmont Club; is that true?" A. "There� s an outside entrance, yes." Q. "And to your knowledge, is that the only entrance into this compound where therets a dressing room and a danee floor?" A. "I believe it is, yes. I couldn' t say that itts absolutely positively the only entrance, but I believe it is, yes.�� Tr.p. 136 1. 6-10. Aecord, Officer Lutehen, Tr. 167 at -�9; Mr. Carehedi , Tr. 180 at 12-15. C. Ms. Monn: Q. "Can you describe the dance floor?" A. "It' s just a danee floor with glass around it. It' s a different part of the building.�� Tr.p.87 1. 13-15. -2- , � 2. No liquor is served or a1loWed in the danee studio. For example: Ms. Monn: Q. " . . .And that when you were in the dressing room, there was no intoxieating beverages in that section of the building, was there?" A "No." Q. "And there was no service of intoxicating beverages in that area at all?'r A. "No." Tr.p. 10� 1. 17-23- 3. The City has taken the position that, for a period of ten or twelve years, the danee studio is not part of the licensed premises. For example: Mr. Carehedi : THE COURT: "So that glassed-off area is not part of the licensed premises?" THE WITNESS: "They sell on-sale liquor. That is correet." . . . Q. "And that entertainment lieense, as has been issued to these five bars, allows them to have nude daneing behind this window; is that true?" A. "I have always been of that opinion, yes." Q. "And that has been true over a period of some ten or twelve years; is that true?" A. "That is correct." Tr.p. 179 1. 13-16, p. 181 l. 2-8. Aceord. Mr. Carehedi , Tr.p. 5 l. 1-12. Because the City, over the past ten or twelve years, has taken the position that there is no violation of any law or ordinanee relating to the sale of liquor if nude dancing takes place behind glass walls because the daneing does not oecur on the licensed premises, the City cannot now be heard to argue that the dance studios are, for the purposes of these proceedings, -3- �� .�� . � part of the licensed premises. To do so under these circumstances is not only arbitrary and capricious, it violates the licensee' s constitutional rights to due process, equal proteetion and freedom of expression under both the state and federal constitutions. Thus, this Tribunal must find and eonelude that the danee studio is not part of the licensed premises. 2. Parking Lot.--Although off-street parking may be required for a particular location to qualify as licensed premises, the parking lot itself is not part of the "licensed premises." It is not part of the location deseribed in the license application or on the license itself (Plaintiffs' Exhibit 6) and there was no evidenee presented that liquor was ever sold or was ever attempted to be sold in the Belmont parking lot. Furthermore, the licensing seheme itself evidences an intent to base the off-street parking requirement upon only a portion of the licensed premises (Seetion 409.08[ 11 ] of the St. Paul Legislative Code) . Off-street parking is, under certain circumstances, a requirement in order to obtain an on-sale liquor license but the licensee eould not serve liquor in the parking lot pursuant to the on-sale license. The Code provides separate and additional requirements to obtain an on-sale license whieh ineludes outside service (Seetion �09.06[5] ) . Therefore, the City cannot argue and this Tribunal may not find or conelude that the parking lot is part of the ��licensed premises.'� -�4- . � POLICE REPORTS AND RECORDS, TOGETHER WITH ALL TESTIMONY RELATED THERETO, THAT HAVE NOT BEEN FOLLOWED BY A VALID CONVICTION MUST BE EXCLUDED FROM THE EVIDENCE IN THESE PROCEEDINGS PURSUANT TO MINN. STAT. §364.01 et seg. Respondent hereby refers to and ineorporates by referenee pages 31 through 32 of Respondent' s Memorandum as if they were fully set forth herein. In addition, the City relied upon Sabes v. City of Minneapolis, 265 Minn. 166, 120 N.W.2d 871 ( 1963) as to the admissibility of police reports. The City� s relianee on Sabes is misplaced. Firstly, the issue in Sabes involved an exception to the hearsay rule--not a statute which excludes specified records under specified circumstances. Seeondly, Sabes was decided in 1963. Minn. Stat. §36�.01 et seg. was enacted in 1974 and revised in 1986 and 1987. Thus, it must be presumed that the Minnesota Legislature intended to limit the seope of the Sabes decision. See 17 Dunnell� s Minn. Digest 2d Statutes §5.0�(a) (3d ed. 198�) ("Where a statute is not obviously a reenaetment or revision of a former statute, it must be assumed that the legislature intended to make some change in the existin� law. It may be assumed that the legislature knew the existing law on the subject." ) The City has presented no evidence that MFL, Ine. or Mr. Fan was ever convicted of any crime. Therefore, Plaintiff� s Exhibit 5 is clearly inadmissible under Minn. Stat. §36�+.04( 1 ) . The City cannot argue that Minn. Stat. §364.0�4( 1 ) will apply only -5- . � if the City seeks adverse action in the form of non-renewal of the license but does not apply if it seeks a different form of adverse aetion based upon lack of moral eharacter (See, e.�. §310.06[b] [9] ) of the St. Paul Legislative Code) . Such an argument is clearly contrary to Minn. Stat. §36�.07, whieh states: The provision of sections 36�.01 to 36�. 10 shall prevail over any other laws and rules which purport to govern the �ranting, denial , renewal, suspension, or revocation of a license or the initiation, suspension, or termination of publie employment on the grounds of conviction of a crime or crimes. In deciding to �rant, deny, revoke, suspend, or renew a license, or to deny, suspend, or terminate public employment for a laek of good moral eharacter or the like, the hirin� or licensing authority m� consider evidenee of convietion of a crime or crimes but only in the same manner and to the same effect as provided for in sections 36�.01 to 3��. 10. Nothing in section 3 .01 t�4. 10 shall be construed to otherwise affect relevant proceedings involving the granting, denial , renewal , suspension, or revocation of a license or the initiation, suspension, or termination of publie employment. Emphasis added. Therefore, Plaintiff� s Exhibit 5 must be exeluded from the evidenee that is admitted in these proceedings and this Tribunal �ust disregard any testimony related thereto. ADVERSE ACTION ON THE BASIS 0� VICARIOUS RESPONSIBILITY IS INAPPROPRTATE UNDER THE EVIDENCE PRESENTED AT THE HEARING. In order to take adverse action against a license or licensee on the basis of vicarious responsibility for the acts of others, the City must satisfy its burden of establishing that the -6- � � _ ,��.�� . acts complained of fit within a statute or ordinance. The license-holder' s vicarious responsibility under the Liquor Control Aet is set forth in Minnesota Statute §3�40A.501 whieh states: Every lieensee is responsible for the conduet in the licensed establishment and any . sale of alcoholie beverage by any employee authorized to sell alcoholie beverages in the establishment is the act of the licensee for the purpose of all provisions of this ehapter except sections 340A.701 , 3�40A.702, and 340A.703. Emphasis supplied. The license-holder� s vicarious responsiblity under Chapter 409 of the St. Paul Legislative Code is set forth in two seetions. Section 409.�8�5) provides: Every licensee is hereby made responsible for the conduct of his place of business and required to maintain order and sobriety in sueh place of business. Emphasis added. Section �409 . 1�( 1 ) provides: Any aet by any clerk, barkeeper, agent, servant or employee of any licensee here- under, in violation of this ehapter shall be deemed the aet of the employer and licensee of sueh place as well as that of sueh elerk, barkeeper, agent, servant or employee, and every sueh employee and licensee shall be liable to all the penalties provided f'or the violation of same equally with said elerk, barkeeper, agent, servant, or employee. In addition, the City must satisfy its burden of establishing that the license-holder knew or recklessly disregarded the faets that such unlawful aets were being perpetrated. A lieensee is eharged with knowledge of the illegal activities of others in the "conduet of his place of business" -7- only where the evidence establishes that the licensee knew that the place of business was frequented by such persons and numerous convictions resulted from acts that oceurred on the premises. Sabes v. City of Minneapolis, 265 Minn. 166, 120 N.W.2d 871 , 879 ( 1963) . Furthermore, The mere presence of persons of immoral eharacter has been held not to violate a statute prohibiting the use of a bar as a place "to whieh people resort for purposes whieh are injurious to the public morals," there being nothing unlawful about permitting such persons to patronize bars and restaurants in the absence of proof that they committed violations on the premises. Id. at 878. A. Violations Of The Liquor Control Aet And/Or Chapter �09.--The evidence presented at the hearing establishes, beyond a reasonable doubt, that there were no violations of the Liquor Control Aet or Chapter 409: For example: 1 . There was no testimony coneerning any wrongful sale or possession of intoxicating liquor. The testimony is consistent; there has never been a liquor violation. See e.�. , Carchedi Tr.p. 173 at 22-25; Fan, Tr.p. 27� at 9-11 . 2. The testimony proved that the dancing takes place off the licensed premises and is appropriately licensed. Su ra at 1-�. -8- The City has presented no evidence to the contrary. Therefore, that section of Minn. Stat. §340A.501 dealing with the sale of intoxicating liquor is inapplicable. Similarly, Section �09. 14( 1 ) is inapplicabl� because there was no act alleged or evidence presented of a violation of Chapter 409. Pages 2 through 6 of Respondent' s Memorandum in Support of Pretrial Motions are hereby ineorporated by reference as if Pully set forth herein. B. Aets or Conduct Inside Versus Outside of the Licensed Premises.--By its terms, Minnesota Statute §30�A.501 makes the licensee "responsible for the conduet in the licensed establishment." As discussed surpa, at 1 through 4, the licensed premises are located at 615 University Avenue--not in 490 North Dale, not in the parking lot, not on the sidewalk, not on an MTC beneh, not in the alley and not on the street. Similarly, Seetion 409.08(5) makes the licensee "responsible for the conduct of his place of business and required to maintain order. . . in such place of business." The business of MFL, Inc. d/b/a The Belmont Club is that of a bar and restaurant, and its place of business is at 615 University Avenue and at no other place. There is no evidenee of any arrests, let alone convictions, of prostitution or prostitution-related activities in the lieensed premises. �� Indeed, the testimony is to the contrary. For example: �� Although Officer Lutchen speculates that he made 20 to 25 arrests off the licensed premises for solicitation in the � licensed premises, his deseription of the oecuranee contains no evidenee of solicitation in the licensed premises. -9- ��-�`�'� � Ms. Weinhandl: Q. "To your knowledge, has there ever been an arrest for prostitution within your premises?" A. "Within our premises, no sir. " Tr.p. 22k at 1. 18-20. Officer Lutchen: Q. "And at any time did you make an arrest within the Belmont bar for prostitution?�� A. "No, I did not." Tr.p. 158 1 .22-2�. Accord Tr.p. 161 l . 13-15. Even if this Tribunal coneludes that the "licensed premises" ineludes the parking lot or that the lieensee is responsible for the conduct of his business in the parking lot, there was no evidenee presented concerning any convietion of prostitution or prostitution-related aetivities in the parking lot. The only testimony presented was the speculative testimony of Officer Lutehen of one possible arrest in the parking lot, as follows: Officer Lutehen: Q. " . . . [H]ave you ever made an arrest in the parking lot?" A. "I believe one. I can' t be positive on that. I believe there was one arrest made." Q. "Do you know when that would be?" A. "I 'm not positive on that, no.'� Tr.p. 161 at 1. 17-18. One speculative arrest is simply insufficient to sustain the City' s burden of proof. Nor is a single aet of solicitation enough to justify a license revocation under a statute whieh prohibits the licensee from permitting the premises to become disorderly. Sabes, 120 N.W.2d at 878. This is particularly true when this one speculative arrest is compared to the arrests -10- made by Officer Lutehen in the surrounding area: arrest of a "pimp" in Lendway' s parking lot in early 1987; two (2) arrests in Skipper' s parking lot in the last 18 months; twenty (20) to thirty (30) ("guesstimation" ) at the corner of Sherburne and Dale; twenty (20) ("guesstimation) at University and Dale; St. Albans and Sherburne is a very aetive area; and "several" at Kent and Sherburne. Tr.p. 162 at 6-25 and 163 at 10-19 . C. Vicarious Responsiblity of Acts or Conduct of Employees.--In discussing licensee� s responsblity for his employees in the "conduet of his place of business," the Minnesota Supreme Court has explained, The legislative intent as expressed in that section seems elear. The licensee makes his own ehoice of servants and managers. He and he alone ehooses those with whom the conduet of the place is to be left, and for their conduct, within the field of their employment, he is responsible. . . .his liability would, of course, follow, provided the harm came about while the servant was acting in furtherance of his masterts business and within the scope of his employment. State v. Sobelman, 199 Minn. 232, 271 N.W. 48�, �86 ( 1937) . Thus, the licensee has vicarious responsibility if the acts and conduet of his employees are "within the field of their employment" , "in furtherance of his master's business" and "within the scope of his employment." The testimony establishes, beyond a reasonable doubt , that even though Randy Pape was convicted of possession with intent to distribute while he happened to be employed by the -11- �'�'-/�� licensee, Mr. Pape was not within his "field of employment», , was not "in furtheranee of his araster' s business" and was not "within the seope of his employment." He was arrested after 10:00 p.m. (Meyer, Tr. p. 70 at 20) but his hours of employment were 11 : 00 a.m. to 4: 00 p.m. (Weinhandl Tr. p. 225 at 5-11 ) . He elearly violated the established rules of the licensee and was disciplined because of it (Weinhandl Tr. p. 225 at 12-25 and p. 226 at 1-9) . Debra Fox, who was hired as an independent contractor by Dancing Angels, Ine.--not MFL, Ine. (See Respondentts Exhibit A)--was similarly diseiplined. Id. When the licensee heard of a second violation of the rules, Mr. Pape' s employment was terminated. Because Mr. Pape was acting outside of the seope of his employment and not acting in furtheranee of the licensee' s business, and because he was not in the licensed premises, the licensee cannot be held to be vicariously liable for his wrongful acts. THE CITY HAS FAILED TO SATISFY ITS BURDEN OF PROVING A NUISANCE A. Publie Nuisanee.--Minnesota Statute §617.8�(2) ( 1 ) defines a publie nuisance, in relevant part, as: three or more misdemeanor eonvietions or two or more eonvictions, of whieh at least one is a gross misdemeanor or felony, within the previous two years for aets of prostitution or prostitution-related offenses committed within the building; . . . . -12- Minnesota Statute §617.80(2) defines "building" as a structure suitable for human shelter, a eommereial strueture that is maintained for business activities that involve human oecupation, or any portion of such struetures. The City has offered no evidenee that there have been any convictions for acts of prostitution or prostitution- related activities within the building that houses the Belmont Club. Therefore, no adverse aetion can be supported on the basis of any alleged publie nuisance. B. City Has Failed In Its Burden Of Proof.--Even if this Tribunal should conelude that adverse action may be taken against a license or a licensee outside of the statutory definition of a publie nuisanee, the City has failed in its burden of proof. The City has not satisfied its burden of establishing that the Belmont Club is the cause of prostitution or prostitution-related activities in the area. Indeed, the testimony is that the prostitution problem was not caused by the Belmont Club but by sueh things as low housing standards, low income levels, lack of education, absentee landlords and urban development in the community surrounding the Belmont Club. Melendez, Tr.pp. 60-61 . Aceord Melendez, Tr.p. �8 at l. 3-6. (Q. "So is your opinion, then--that the Belmont Club was not the cause of prostitution on Dale and University, is it?" A. "I would says that in all fairness and honesty, I would say no.") ; Eisenmenger, Tr.p. 117 at 21-25 and 118 at 1 ; Respondent' s Exhibit E at 19. -13- The City has not satisfied its burden of establishing that prostitution or prostitution-related aetivities have any connection with The Belmont Club. Indeed, the evidenee is to the contrary. Melendez: Q. "Does the prostitution, or do the prostitutes have a eonneetion with the Belmont Club itself?" A. "That, I really can' t say that they do, sir. �� Tr.p. 42 at 11-14. Q. "Did you ever see them come out with customers?" A. "No, sir, I haven' t." Tr.p. �43 at 25 p. �44 at 1 . The City has failed to satisfy its burden of establishing any causal connection between the operation of the Belmont Club, including its parking lot, and the prostitution and prostitution- related aetivities that take place in the Frogtown area for the following reasons: 1 . Instead of working with MFL, Inc. and Mr. Fan to address a community problem, the community organizations have "targeted" the Belmont Club--not for any alleged violation of the liquor laws or ordinanees, but because nude daneing can be viewed from the licensed premises. Melendez, Tr.p.�2 at 16-21 ; p. �47 at 18-25 and p. �48 at 1-6; p. 58 at 16-25 and p. 59 at 1-16; Eisenmenger, p. 119 at 14-25. Any adverse testimony by the witnesses from the community concerning any alleged connections between the Belmont Club and prostitution or prostitution-related aetivities laeks eredibility because they have "singled out" the -1�4- Belmont Club. Reliance thereon by this Tribunal would be arbitrary and capricious. Tamarae Inn, Ine. v. City of Lon Lake, 310 N.W.2d �7� (Minn. 1981 ) . In addition, neither Mr. Melendez nor Mr. Eisenmenger has been inside of The Belmont Club in years. 2. The evidenee elearly establishes that the members of the community moved into the area knowing that The Belmont Club sold liquor, that nude daneing could be viewed from the licensed premises, and that they were moving into an area known for prostitution. Melendez, Tr.p. 36 at 15-18; Eisenmenger, Tr.p. 108 at 23-25, Tr.p. 115 at 13-25. 3• The evidenee establishes that there are more prostitutes and prostitution-related activities, and arrests, in the publie streets and sidewalks than in the licensed premises or the parking lot. For example: Melendez, Tr.p. �0 at 11-21 , Tr.p. �9, Tr.p. 52 at 19-25 and 53 at 1-�; Meyer, Tr.p. 78 at 15-25; Eisenmenger, Tr.p. 116 at 23-25 and 117 at 1-2, Tr.p. 120 at 14-25; Lutchen, Tr.p. 1�9 at 17-25, Tr.p. 150 at 1-8, Tr.p. 160 at 2�-25 to 161 at 1 , Tr.p. 162-163 at 1-19, Tr.p. 168 at 13-24. �. The Belmont Club is located in a high crime area. The patrol team area 88 (6-block area west of Dale) and in area 89 (6-block area east of Dale) , where The Belmont is located are both hi�h crime areas. Respondent' s Exhibit B; Lutchen, Tr.pp. 153-�56. In 1986, seventy percent (70$) of all prostitution arrests in the City were made in the zone bounded by University, Charles, Vietoria and Western Avenues. Lutchen, Tr.p. 156-157 at 1-�; Respondent' s Exhibit E at p. 20-21 . -15- �� , �� It is unclear to what extent elients of street prostitutes in this neighborhood are the same people as are the patrons of the adult entertainment businesses in the neighborhood. Apparently, the two activities are often separate, but oecur in the same neighborhood due to its "sex for sale" reputation. . . . Respondent' s Exhibit E at p. 21 . 5. The parking lot is used by patrons of the Fliek and Faust . For example, Melendez, Tr.p. 56 at 22-24; Eisenmenger, Tr.p. 122 at 12-15. 6. The licensee has taken steps to remove prostitutes and pimps from the licensed premises. Baker, Tr.p. 213 at 11-25 and 214 at 1-3. Weinhandl, Tr.p. 224 at 9-17, Tr.p. 225 at 1-�, Tr.p. 226 at 10-13. 7. There has been a significant improvement in the number of "known prostitutes" passin� throu�h the parking lot and a greater awareness of the boundaries of the parking lot since the security guard was hired. For example: Melendez, Tr.p. 44 at 10-16, p. 45 at 8-17; Eisenmenger, Tr.p. 112 at 21-25, Tr.p. 113 at 1-9, Tr.p. 122 at 1-6; Lutehen, Tr.p. 163 at 20-23. The evidence, rather than establishing that the licensed premises caused or has a conneetion with prostitution or prostitution-related activities, is a victim of the problem--just like other members of the community. The City has presented no evidence upon whieh it can rely to establish ��that the premises themselves [are] inherently unsuitable as the location of a tavern. . ." Wa da _v. City of -16- Minneapolis, 2�6 N.W.2d �55, 459 (Minn. 1976) . Indeed, the evidenee is to the contrary. For example: 1 . Mr. Carehedi testified that the Belmont Club is proper within the zoning ordinances for the business it' s in. Tr.p. 177 at l . 8-10. 2. Mr. Melendez testified, in substanee, that if the Belmont Club did not present nude dancing to be viewed by its customers, the community would work with, as opposed to against, the Belmont Club. Tr. at p. 58-59. Finally, the City of St. Paul has failed to satisfy its burden of proof that the efforts by law enforcement personnel is ineffective. The evidenee is to the contrary. For example: Melendez, Tr. at p. �9, 11-1�; Eisenmenger, Tr. p. 118 at 2-11 ; For all of the reasons stated herein the City has failed to satisfy its burden of establishing that the licensed premises and the parking lot constitute a nuisanee. THE CITY DID NOT SATISFY ITS BURDEN OF PROOF AS TO COUNTS 3 AND 4 Respondent hereby refers to pages 2 through 24 and 27 through 32 of Respondent� s Memorandum in Support of Respondent� s Pretrial Motions and incorporates them as if fully set forth herein. A. The City Has Failed To Sustain Its Burden Of Proof That A Minor Was Employed � The Licensee For Sexual Performance And That The Licensee Permitted A Minor To En a e In A Sexual Performance.--As discussed at pages 4 and 22 of -17- Respondent' s Memorandum in Support of Respondent� s Pretrial Motions, the licensee did not employ Ms. Monn; Daneing Angels, Ine. employed Ms. Monn. Respondent� s Exhibit A. Because of its "tendancy to inhibit constitutionally proteeted expression, . . .'� the elements of Minnesota Statute §617.246 must inelude scienter in order to survive a constitutional challenge under the First and Fourteenth Amendments to the Constitution of the United States and Artiele 1 §3 of the Constitution of the State of Minnesota. Smith v. California, 361 U.S. 1�7, 155 ( 1959) . Aecord, New York v. Ferber, 458 U.S. 747, 765 ( 1982) ("As with obseenity laws, eriminal responsibility may not be imposed without some element of seienter on the part of the defendant." ) ; State v. Ferber, 390 U.S. 629, 6�3-4� ( 1968) . Thus, the City must satisfy its burden of establishing, beyond a reasonable doubt, that the licensee was in some manner aware ( 1 ) of the eharaeter and content of the performance and (2) the age of Ms. Monn. The City has failed in this burden as follows: 1 . The City failed to present any evidenee that either the licensee or Mr. Fan intended to hire Ms. Monn for the purpose of a '�sexual performanee" or to "permit a sexual performanee." 2. The City failed to present any evidenee that either Mr. Fan or any employee of MFL, Inc. ever actually saw Ms. Monn engage in any alleged "sexual performanee" . -18- �'�'- /�,�� 3. The City Pailed to present any evidenee that Mr. Fan was even at The Belmont Club when Ms. Monn engaged in her alleged '�sexual performanee." 4. The City failed to present any evidenee that any other daneer ever daneed in a manner so as to be outside of the realm of protected expression. To the contrary, the evidenee is conelusive that that was not the intention. For example: 1 . Respondent� s Exhibit A specifically states at p. 2 that the "[d]aneer represents that she has read and understands the ordinanees governin� exotie daneing[ ]" and that "Lshe] agrees to abide by such ordinance and all laws." Aecord, Respondentts Exhibit A at � 7.a. 2. Ms. Monn did not dance in the manner described in PlaintifP� s Exhibit 5 at her audition. Osterman Tr.p. 260 at 14-18. 3. The daneers are verbally instrueted about prohibited aets, the ordinance is read to them and diseussed at monthly meetings (Respondent� s Exhibit C) and a sign is posted in the dressing area contained in �490 North Dale (Respondent' s Exhibit D) . Osterman, Tr.p. 236 at 9-25 and pp. 237-239 at 1-5. 4. Ms. Monn had never daneed in the manner described in Plaintiff� s Exhibit 5 on any other oecasion. Osterman, Tr.p. 260 at 14-19. -19- 5. Mr. Fan was not present the night of Ms. Monn' s arrest. Osterman, Tr.p. 257 at 18-20. 6. Mr. Fan attended the meetings with the dancers where they went over the rules. Osterman, Tr.p. 247 at 7-12. B. Plaintiff' s Exhibit 5 Is Inadmissible Or Should Be Given VerY Little Weight.--Respondent hereby refers to pages 31 to 32 of the Respondentts Memorandum in Support of Respondent� s Pretrial Motions and pages 1 to , su ra, as if fully set forth herein. If this Tribunal coneludes that Plaintiff� s Exhibit 5 is admi�sible despite Minnesota Statutes Chapter 36�, then the report should be held inadmissible under Rule 803(6) and (8) of the Minnesota Rules of Evidenee and Rule 1400.7300 of the Rules of the Office of the Hearing Examiner, or it should be afforded very little weight. Officer Rogers admitted (Tr.p. 13u at 20-25 to p. 135 at 1-2) that PlaintiffTs Exhibit 5 was not made contemporaneously with Ms. Monn�s arrest outside of the licensed premises, but that it was made fourteen days after her arrest. The manner and cireumstanees under which Officer Roger� s report was procurred indicates a laek of trustworthiness, as follows: 1 . Aecording to Officer Roger�s testimony, his first report did not deseribe the dancing. Tr.p. 141 at 20-23. As a police officer with over five years of experience, it is reasonable to infer that if Officer Rogers had observed a person daneing, that he knew was a minor, and the content of that -20- � � dancing consisted of an alleged "sexual performanee, " he would have included it in his initiai report. It was only after another officer had a conversation with the City Attorney, that the other officer advised him that they [the City Attorney] needed and wanted a supplemental report. This strongly suggests that the purpose of the second report was not to "record matters observed pursuant to duty imposed by law" but to Porm a "faetual" basis for other purposes. Thus, this Tribunal should conclude that the subsequent report, Plaintiff� s Exhibit 5, "laeks trustworthiness" and is not "the type of evidence on whieh reasonable, prudent persons are accustomed to rely in the conduet oP their serious affairs." 2. Officer Rogers testified that he was �0 to 50 feet away from the dance studio and was on the opposite side of the bar. Tr.p. 130 at 12-19, p. 135 at 15-18. Even if his view was unobstrueted by bartenders or patrons sitting at the bar, sitting at the rail or moving between him and the glass panels, it is unlikely that anyone could see so far with such clarity. C. The City Has Failed To Sustain Its Burden OP Proving That The Licensee Intended To Hire A Minor.--The testimony is clear that: 1 . Tarah Monn lied about her age to get the job and never told anyone at the Belmont her real age. Monn, Tr.p. 90 at 16-19, Tr.p. 93 at 8, Tr.p. 100 at 17-23. 2. Not only did Ms. Monn appear to be over 18 at the hearing, she testified, that when she auditioned, she wore a lot of eye make-up and her hair was different because it stood up more. Monn, Tr.p. 100 at 6-15. -21- ��~.. :r�� . . 3. This Tribunal was able to see, Ms. Osterman testified, that Ms. Monn is well developed. Ms. Osterman believed, based upon her 7-8 years of experience in the bar business, Ms. Monn looked 18-19 years old. Ms. Monn has large breasts and is "well proportioned, fully developed. " Osterman, Tr.p. 257 at 1-17. �4. Nancy Osterman asked for identification, was given identification in the form of a birth eertificate and showed it to David Fan. Osterman, Tr.p. 244 at 19-25 and p. 245 at 1 . Therefore, the City has failed to sustain its burden of proving seienter. THE CITY HAS FAILED IN ITS BURDEN OF ESTABLISHED LACK OF MORAL CHARACTER For all of the reasons set forth in Respondent' s memorandum in Support of Respondentts Pretrial Motions, at pages 16-21 , whieh are hereby ineorporated by reference, adverse aetion on the basis of lack of moral charaeter is uneonstitutional . Furthermore, Minnesota Statute §364.07 prohibits the admission of police reports for the purpose of adverse action on a license on the basis of lack of good moral eharaeter, unless the licensee is convicted of a crime. Supra at 6. Mr. Melendez testified that Mr, Fan has always been a gentleman, has been willing to work with the eommunity groups (Tr.p. �48 at 7-13) , but the community is unwilling to work with him because of the nude daneing off from the licensed premises (Tr.p. 58 at 9-25, p. 59 at 1-16) . Kathleen Zachary' s eharacter testimony is undisputed (Tr.p. 261 at 10 through 268) . -22- . � Because there are no convietions and because the City has not proved any willful violations or other '�immoral'� conduct by or attributable to the licensee, no adverse aetion my be imposed under Minn. Stat. §3�OA.402(5) ; Seetions 310 or 409.06(3) of the St. Paul Legislative Code. THERE IS NO EVIDENCE THAT EITHER MFL, INC. OR MR. FAN HAS EVER BEEN CONVICTED OF ANYTHING OR HAS EVER HAD A LIQUOR LICENSE REVOKED There is no evidenee that either MFL, Ine. or Mr. Fan has ever "been convicted of a willful violation of a federal or state or local ordinanee governing the manufacture, sale, distribution or possession for sale or distribution, of intoxicating or nonintoxicating malt liquors"2� or that either MFL, Inc. or Mr. Fan has had a liquor license revoked. 3� Therefore, the City cannot rely upon those seetions of Minnesota Statutes §340A.�02 or Section 409.06(3) of the St. Paul Legislative Code to sustain any adverse aetion against the license or the licensee in the form of failure to renew MFL, Inc. � s on-sale liquor. THE CITY HAS NOT SATISFIED ANY OF THE GROUNDS SET FORTH IN SECTION 310.06 OF THE CODE The City has failed to satisfy its burden under Seetion 310.06(6) , (7) and (9) . Because the City has failed in its burden to 2� Minn. Stat. §340A.402(3) . Aecord, Seetion 409.06(3) of the St. Paul Leg. Code. 3/ Minn. Stat. §340A.402(4) ; Seetion 409.06(3) of the St. Paul Leg. Code. -23- prove that the licensee has violated any provisions of any statute or ordinance or that the licensee' s aetivities in the licensed aetivity have created (or caused) any danger to the publie health, safety or welfare, or that the licensee lacks moral eharacter, no adverse action may be taken under Section 310.06. THE LICENSEE HAS BEEN COOPERATIVE A. Count 2.--The evidence establishes, beyond a reasonable doubt , that the licensee did not condone the aetions of a former employee with regard to Officer Meyer. For example: 1 . The licensee apolo�ized "profusely" upon being informed of the incident (Meyer, Tr. p. 75 at 17-19; Weinhandl , Tr.p. 226 at 23-25, p. 227 at 1 ; Fan, Tr.p. 273 at 14-17) . 2. The licensee stated that it would cooperate with anything the offieer wanted done (Meyer, Tr.p. 76 at 2-�) . 3. The former employee was never charged (Meyer, Tr.p. 76 at 12-13) . �. The licensee told the former employee that it should never happen again (Weinhandl , Tr.p. 227 at 2-7) . 5. Officer Meyer accepted the apology (Weinhandl , Tr.p. 227 at 8-10; Fan, Tr.p. 273 at 17-18) . 6. Lieutenant Bailey, at that time the head of the Vice Squad, guaranteed, in the presenee of an Assistant City Attorney, that the incident would not be brought up at the license hearing. -24- . � B. The Licensee Has Been Cooperative With The Police And The City.--Both Officer Meyer and Officer Rogers have testified that, but for the incident perpetrated by a former employee, the licensee has always been cooperative (Meyer, Tr.p. 78 at 7-9; Rogers, Tr.p. 138 at 22-25 and 139 at 1-16) . Mr. Carehedi has testified that he has had no problems, in his capacity as license inspector, with Mr. Fan and no complaints about how Mr. Fan operates hi� business in relation to the sale of intoxicating liquor. Tr.p. 173 at 18-25. Furthermore, the licensee participated in a meeting requested by the City coneerning alleged prostitution in the parking lot and surrounding area (Carehedi Tr.p. 17� at 10-12, p. 286 at 12) . Despite the licensee' s requests for various forms of assistance from Lieutenant Bailey, none of that assistanee was ever provided (See e.�. , Carehedi , Tr.p. 17�-175 at 1-19; Fan, Tr.p. 274 at 17-25, A. 275 at 1-13) . C. When The Licensee Was Informed Of � Allegations Of A Problem, Steps Were Taken To Correet The Alleged Problem.-- Throughout the testimony, it is elear that when the licensee was informed of an alleged complaint, it took measures to eorrect any alleged problem. For example, all of the testimony indicates that the parking lot attendant is doing a marvelous job. When known pimps were identified to the licensee, they were asked to leave the premises and have not been back (Baker, Tr.p. 213 at 20-25, p. 214 at 1-3) . CONCLUSION The evidence presented to this Tribunal has proved that MFL, Ine. d/b/a The Belmont Club is loeated in one of the -25- �;,f'�',° �� y c . A highest crime areas of the City of St. Paul; the erime rate in the licensed premises and the parking lot is substantially lower than the surrounding community; and that the location of the Belmont Club does not violate any zoning ordinance. The City failed to sustain its burden of establishing that MFL, Inc. d/b/a The Belmont Club or Mr. Fan caused or was connneeted with prostitution in the Frogtown Community; that MFL, Inc. or Mr. Fan caused any type of nuisanee in the area; that either MFL, Inc. or Mr. Fan have ever been convieted of a crime or can be held vicariously liable for actions by an employee when the employee acts outside of the scope of his employment and is not in furtherance of the licensee� s business. The evidenee has proved that the Belmont Club has been "targeted" for adverse action by the community because nude dancing can be viewed from the licensed premises and that the community would not object to MFL, Inc. or Mr. Fan operating a bar and restaurant at that location if the nude daneing could not be viewed from the premises. The evidenee has proved that the nude dancing takes place off from the licensed premi�es; that the appropriate license are in force; and that the City has been of that opinion for 10 or 12 years. The evidence has proved that there are no violations of any statutes or ordinanees relating to the sale or possession of intoxication liquor and that the licensee has been cooperative with the police and the City. The evidence has proved that Mr. Fan is a person of good moral character who has not knowingly or reeklessly -26- � . „ ,. engaged in any misconduet; that he establishes and enforces rules and regulations in the conduet of his business; and has made every effort to respond and has been successful in responding to every alleged complaint made to him by the City or the community. For the foregoing reasons, and the reasons set forth in Respondentts Memorandum in Support of Pretrial Motions, Respondent respeetfully requests that this Tribunal make Findings of Fact and Conclusions of Law favorable to the Respondent and that this Tribunal recommend that no adverse action be taken against the license or the licensee by reason of this hearing. Dated this 17th day of June, 1988. Respectfully submitted, COCHRANE & BRESNAHAN, P .A. By � ames . Bresnaha Attorney I .D. �11307 Mary F. Seymour Attorney I .D. #99�5� 2� East Fourth Street St. Paul, MN 55101 (612) 298-1950 Attorneys' for Respondent -27- �'�- ��a:� ��. STATE OF MINNESOTA - AFFIDAVIT OF PERSOI�AL SERVICE COUNTY OF RAMSEY Patrieia Christjaener, being duly sworn, `.says t�at on September 2, 1988, in St. Paul, Minnesota she served the attached Respondent�s Objections To The City Council's Proposed Findings, Conelusions And Adverse Action upon the City Clerk for the City of St. Paul/Albert Olson, the City Attorney for the City of St. Paul--Civil Division/Phil Byrne and each of the members of the St. Paul City Council/Tom Dimond, Roger Goswitz, Bob Long, Janice Rettman, James Scheibel, Kiki Sonnen and " William Wilson, one of the persons therein named, personally, by delivering and leaving a copy thereof at Off'ice of City Clerk City Attorneys' �fgice 386 City Hall 647 City Hall 15 W. Kellogg Blvd. 15 W. Ke114gg Blvd. St. Paul , MN 55102 St. �aul, MN 55102 Atten: Al.bert 0lson Atten: Philip Byrne St. Paul City Council 7th Floor, City Hall 15 West Kellogg Blvd. St. Paul , MN 55102 �tECE�VEQ Atten: Tom Dimond Roger Goswitz $EP 0 6 1988 . Bob Long Janiee Rettman CtTY CLERK James Scheibel Kiki Sonnen - William Wilson with a person of suitable age and descretion. � , . � ' Q'�� Patricia Christjae er S U�S C r'1 b@ C� a.21 d S W O r ri �O .nnnnnnnnnnnnnnnnnnnnn�.,v�r.n��nnnnnnn r before me �his 2nd �� nAwr� �. �RODUc day � f Septe ber,�- 988 �;�,�� . � NOTARY PUBtIC-MINMESOTA . � / � RAMSEY COUNTY � My Comm.Expirot M�y �6,lH�ii r vvWVwwvwVwWwVWWVVVVVWVW■ otary Pu c �' � CU�.. q _ � - �� STATE OF MINNESOTA . AFFIDAVIT OF SERVICE BY MAIL COUNTY OF RAM5EY Patricia Chri��t�aener, �being duly sworn, says that on September 2, 1988, in St. Paul, Minnesota she served the attaehed Respondentts Objeetions To The City Gouneilts Proposed Findings, Conclusions And Adverse Action upon the Administrative Hearings Office/OfPice of the Hearing Examiner and Ms. Carol Grant e/o Kurzam, Grant, Manahan, Bluth & Barker, by depositing a copy thereof, properly enveloped with postage prepaid, and addressed to them at: Ms. Carol Grant Administrative Hearings Offiee c/o Kurzam, Grant, Manahan, 500 Flour Exchange Building Bluth & Barker 310 4th Avenue South 240�4 Stevens Avenue So. Minneapolis, MN 55415 Minneapolis, MN 55�0�4 Attn: Office of the Hearing Examiner _- the last known address of such persons in the post-offi.e . �ECEIVED at St. Paul , Minnesota. SEP 0 6 19$8 � ' C�i,'�Q,�,r�,�'' er�rY c��K Patricia Christjaener Subscribed and sworn to before me this 2nd ... . . � � . .ts A!�n/V\A.MhMII/1M/�A:\AnM.1i\��vViAi�Af�n/�■� � � . . � � . . . day of Sept:ember, 1988. ��. nAwr, �. �kou�x ��,� NOTARY PUBLIC-MINNES6TA � � � . / . � �.. RAMSEY COUNiY . � . . . . . . My Comm.6xplre�Msy 16,i991 ,�vwvwwvvwvvwwwwvvvvvvvwvw r N4tary ic __. �.�._ ,^�^°+e�-.- -. ,._. ,�. , � �^��^»..:r-�r.c�.�,..-.�.-,-.,-.......t-�... . _ _. . �.�,...�.-....-�, -- / COCHRANE & BRESNAHAN, P.A. ATTORNEYS AT LAW ��- � � C�1 —(�l� 24 EAST 4th STREET SAINT PAUL, MINNESOTA 55101-1099 JOHN A. COCHRANE ,iAMcS R.BRESNAHAN TELEPHONE STEW,4RT C. LOPER 612/298-19$0 r�tARV F.SEYMOUR CABLE ADDRESS:C�BRA RONALO D.AILEY' ERIAN N.TODER" '.4�so adm�:red m Texas ,�+ep.tembeY, 6� �98$ "A�so aamirted�n Co�orado � RECEIVED Office of the City Clerk SEP ds �98$ 386 City Hall Ct�Y CLERK 15 W. Kellogg Blvd. St. Paul , MN 551D2 � Attention: Albert Olson Re: In the Matter of the On-Sale Liquor License for the Belmont Club (City-88-021-CG, 53-21-1-2�427-G) Dear Mr. Olson: Enclosed herewith for filing please f%nd the original Affidavits of Service for the above entitled matter. Th�se Affidavits aceompany Respondentts Objeetions to City Council' s Proposed Findings, Conelusions and Adverse Action which was filed on September 2, 19$$. Yours truly, COCHRANE & BRESNAHAN, P.A. By= m � � �� Mar F'. Se mour � Y Y MFS/plc Enclosures HAND DELIVERED . ��-��a 6 STATE OF MINNE50TA OFFICE OF ADMINISTRATYVE HEARING No . City-88-�21-CG-53-21H1--2427-G In the Matter of the On-Sale Liquor CITY OF SAINT PAUL BRIEF License for the Belmont Club IN RESPONSE TO MOTIONS — — — — — — — — — — — — — — — — — — AND IN FINAL ARGUMENT The following brief both responds to the salient motions made by the Respondent Belmont Club at the hearing on May 24 , � 1988 , and argues the matters tried to the Administrative Law Judge . The brief is organized as follows : A. Motions to Dismiss 1 . Failure to State a Claim 2. Lack of Subject Matter ,7crisdiction • 3 . Stay Pending Judicial Determination and Others . B. Burden of Proof • C. Chapter 364 . D. Prostitution - . E. Unlawful Minor Employment F. Employee Misconduct G. Summary . A. Motions to Dismiss � 1 . FaiYure to State a Claim Respondent's motions in this regard seem to be based on� the notion that the five counts or ground:� spelled out in the Notice . of Hearing cannot serve as the basis for adverse action against . the licenses of the bar . A preliminary point. Attached hereto are copies of Chapters . 310 and 409 of the Saint Paul Legislative Code (hereafter , "Code") , as well as Ordinance No. 17556, which was effective June 7, 1988. Also included are the resolution authorizing the use of hearing examiners , Council File No . 88=443 , effective April 9 , 1988, and Ordinance No. 17559, which makes the permanent changes in chapter 316 of the Code to permit the use of hearing examiners . . � Municipalities in Minnesota have inherent , wide-sweeping powers to regulate the sale of intoxicating liquors, and to issue and revoke such licenses pursuant to that authority, and pursuant to such additional or specific ordinances and regulations as raay be adopted . The authority vested in municipalities to pass on license issuance and denial ( and revocation) is not limited by the ordinances they may choose to adopt . Country Liquors , Inc. v. City Council of the City of Minneapolis , 264 N.W.2d 821 , 824 (Minn . 1978 ) ; Moskovitz v. City of Saint Paul , infra . In a case in which the Council was presented with evidence of underage drinking , unlawful sales of marijsana in the bar , lack of cooperation of bar management , and an assault and stabbing in the bar , the Court of Appeals upheld the denial of an injunction sought by the bar in district court , saying that "... (m) unicipal authorities have broad discretion to determine revocations of liquor licenses." N, iller v. City of Saint Paul , • 363 N.W.2d 806 , 812 (Minn . App. 1985 ) . The Court cited with aDproval Moskovitz v. City of Saint Paul, 218 Minn. 543 , 16 N.h?. 2d 745 (1944 ) , and�manson v. City of Saint Paul , 329 N.W.2d 324 (Minn. 1983) . In �manson , the revocation of a liquor license on grounds of after-hours display of alcohol and indecent exposure by male dancers was upheld as within the br� ad disczetion of municipal authorities over the issuance , regulation , and revocation of liquor 1 icenses, 329 N.W.2d at 326. In Moskovitz , the Court dealt with the question of whether �he license could be revoked for "misconduct" or for offenses not saecified in the City' s ordinance. The Court held that che � ordinance was not the sole source of po wer to revoke, whzch arose as well under the police powers of the City or (in Moskovitz) an applicable charter provision. 16 N.W.2d at 749. Such broad municipal powers cannot be limited by Ehe enactment of an ordinance of narrower scope. In Sabes v. City of Minneapolis , 265 Minn . 166 , 128 N .W . 2d 871 ( 1963 ) , the license of the . appellant was revoked for allowing the bar to be used as a resort � f�r prostitutes . In discussing the city' s power , the Court said : "No citizen has an inherent or vested right to s�ll intoxicating liquors , and m unicipal authorities have broad discretion within their geographical jurisdiction to determine the manner in which liquor licenses shall ' be issued , regulated , and revoked. Inherent in the right to control the sale of liquor is the power to ` regulate related activities on the licensed premises. Basically it is the council ' s duty to decide whether the 1 icensee has been guilty of such unlawful conduct in the operation of his business that its continuance is detrimental to the oublic good. In reviewing the proceedings of the municipality it is not the court' s function to pass on the wisdom of the revocation , but 2 i onlv to determine whether the council exercised an honest and reasonable discretion , or whether it actec3 capriciously, arbitrarily, oY oppressively. For us to assume greater responsibility would constitute an unconstitutional usurpation of nonjudicial power." 12� N.W. 2d at 875 . (Cites or,unitted) . Countr� Li�uors , Inc. v. Cit� Council of the City of Minneapolis, 264 N.W.2d 821 (Minn. 1978) , makes clear that the scope of discretion in licensing decisions given to municipalities is so broad that such decisions will not be overturned unless patently arbitrary and capricious. No licensee has a substantive property r ight in a liquor 1 icense. 264 N.W. 2d at 826. In addition to the inherent power of the City, a set of permissive grounds for revocations of all licenses ( including liquor licenses) are set forth in section 31C�. 416 of the Code. Additional grounds are provided in section 4H9.88 of the Code , supperted by sections 409.12 and 4 (d9.14 of the Code. Section 231.81 of the Code prohibits nuisances , and is a violation falling within sections 310.�6 (6) and 310.�6 (7) of the Code. It is clear that the 'allegations contained in all five � counts fall well within the scope of undesirable activity which the Council has the power • to use as the basis for license revocation . • One particular matter deserves further discussion . Respondent's counsel extensively discussed the legal inadequacy . of using moral character or the lack thereof as a basis for licensing decisions. That discussion appears to be heavily centered on . cases arising out of First Am endm ent rights, such as bookstore or theatre licensing , or the granting of parade or public assembly permits. This case is not a first amendment case. The licensee here is called to account for hiring a 13 year old girl for the purpose of providing sexual performances � for bar customers. He wiil lose a liquor license. He will not lose his right to hav e a liquor licznse because he engaged in protected speech or offered dance as a protected comm unication. The lack of good moral character , or more properly, the lack of fitness to engage in a particular licensed occupation which is heavily invested with a strong public interest in management in compliance with all laws and in harmony with public health , safety and welfare , is a legitimate ground for revocation of licenses. In Godfather , Inc. v. City of Bloomington, 375 N.W.2d 68 (Minn. App. 1985) , the Court of Appeals upheld the denial of a liquor license application on a finding by the city that the appl icant lacked good moral character. 3 � In addition, Minn. Stat. 1986, ch. 364 , im pliedly authorizes the use of misconduct, or actions which would establish the lack of good moral character , when such actions or misconduct have resulted in convictions. A conviction of a crime which directly relates to the occupation for which the license is sought can be used against an applicant in accordance with section 364. 03. Section 364 . �3 , subd . 2 (c) , recognizes that there can be a relationship between the conviction, and an applicants' " fitness" to engage in the licensed occupation. Peterson v. Minneapolis City Council , 274 N .W. 2d 918, 921 (Minn . 1979) . See also 9A McQuillin , Municipal Corporations , Sec . 26.189.05 concerning good moral character and fitness as a . license prerequisite . Cases and argum ents by the licensee in relation to good • moral character all relate to licenses directly regulating speech or depictions protected by the First Amendment , and are inapposite here. This adverse action relates to the intoxicating liquor licenses and licenses specifically covering the premises licensed for liquor sales. As counsel for the licensee has taken pa ins to point out , the 1 icensed prem ises does not include the area behind the glass wall wherein the sexual performances testified to take place . Revocation of such licenses under counts 3 and 5 of the Notice of Hearing is not oremised on the content of the nude �dancing , how it is performed , or even the fact. of its , performance. Nor it is based on the idea that the dancing was or was not obscene. It is based on the fact that David Fan lacks the good moral character and fitness to have a li.quor license because he hired a thirteen-year old girl for purposes which violate Minn. Stat. 1986, sec. 617.246; because he � id so with a . , callous disregard .for doing the minimally reasonable steps to check her age ; and because at the time he was president of both Dancing Angels , Inc. (which em ployed the dancers) and of MFL, Inc. ( which was with Clayton Club, Inc., the liquor license h�lder) . • 2. Lack of Subject Matter Jurisdiction This motion does not state a proper ground for dismissal . � It may be that a city council ' s action in revoking a particular 1 icense can be challenged successfully in court on the basis of First Amendment, but the city council has the power to consider and take action on licenses . As stated before , this is not a case whose outcome depends on First Amendment analysis. But even if it did have some free 4 � � �� i�a � speech overtones , the law is not as counsel for the Respondent would have us believe. The United States Supreme Court said in City of Newport v. Iacobucci , U. S. , °3 L. Ed. 2d 334, 338 =39 , ( 1986 ) : "The reach of the Twenty-first Amendment is certainly not without limit , .but previous decisions of this Court have established that , in the context of liquor 1 icensing , the Amendment confers broad regulatory powers on .the State ." • "While the States, vested as they are with general police power , require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power , the broad sweep of the Twenty- first Amendment has been � recognized as conferring som ething more than the normal state authority over public health , _ welfare, and morals." California v. LaRue , 409 US 109 , 114 L Ed 2d 342, 93 S Ct 39� ( 1972) . "This regulatory authority includes the power to ban nude dancing as part of a liquor license control . program . " In LaRue . . . we concluded that the broad powers of the States to regulate the sale of liquor , conferred by the Twenty-first Amendment outweighed any . First Amendment interest in nude dancing and that a State could therefore ban such dancing as part of its liquor license program." Doran v Salem Inn, Inc., 422 US 922 � 932-933 � 45 L Ed 2d 648 � 95 S Ct 256I ( 1975 ) . " Eighth Circuit decisions based on LaRue clearly have upheld a municipality' s (or State' s) power to prohibit sexually-oriented � entertainment in bars selling liquor. Blatnik Co. v. Ketola, 587. F. 2d 379 (8th Cir . 1978 ) ; Paladino v. City of Omaha , 471 F. 2d 812 (8th Cir. 1972) . Clearly these cases would have. to stand for the correlative po wer to revoke or suspend liquor licenses for such • offenses in violatior. of the ordinances upheld therein. � More recently ordinances banning nude dancing or sexually= expl icit per formances in bars have been attacked on grounds of the free speech provisions of the state, as opposed to federal , constitution. Several states have struck down local ordinances on the debatable basis that their own constitutions do not have a twenty- first amendment analogue in them , and therefore do not come to the same result sa .LaRue. See , e•g• , Bellanca v. New 5 � � � � � �'- i�a� i'ork State Lir�uor Authority, 429 N.E. 2d 765 (N.Y. 1981) , a four- to-three decision in which the dissent seems more persuasive. TherE is no case squarely on point in Minnescta , but the direction of the case law seems to indicate a result upholding local regulation. In Koppinger v. City of Fairmont, 311 Minn. 186 , 2a8 N.W. 2d 7 � 8 ( 1976 ) , a local ordinance was in fact challenged. on both state and federal first amendment grounds. And while the ordinance attached was invalidated because it applied to all places , not just to bars, the Court' s opinion in several places points out that if the ordinan.ce had been restricted in its application to bars, it would have been upheld. Since Koppinger, Federal Distillers, Inc. v. State, 304 Minn. 28, . 229 N.W. 2d 144 (1975 ) , has discussed the relationship of the Twenty=First Amendment of the i]. S. Constitution to Minnesota constitutional guarantees , indicating that while the said • Amendment does not limit equal protection or due process guarantees of the Minnesota Constitution , there must be a "compelling reason peculiar to this state" to justify more stringent state standards. 229 N.W. 2d at 154 -55. In a decision in the Court of Appeals by Judges Popovich, Wozniak and Huspeni , Anton' s Inc. v. City of Minneapolis , 375 N.W. 504 (Minn. App. 1985) , the Court clearly reads Koppinger to stand for the proposition that local governments may prohibit nude and sexually-explicit performances in bars as against the state and federal challenges raised in Koppinger. ' 3. Stay Pending Judicial Determination and Other • Respondent has had ample opportunity �over the foregoing two to • three months to seek judicial relief and has not done so.� No basis exists for a stay by the Administrative Law Judge in this case. . Respond ent' s written papers request the award of costs and attorneys fees , but cite no authority. Such requests were not argued, and are either without foundation or have been waived by Respondent. City opposes any such request without briefing and argument . � B. Burden of Proof , _ — The burden of proof herein in proving the facts at issue is by a preponderance of the evidence , unless the substantive law provides a higher burden. Minnesota Rules, Part 1400.3700, subp. 5. Counsel for the City is not aware of any case which would prescribe a hicher standard for proving up the facts . 6 The quantum of proof needed to sup�ort a decision, however , is the next test , and in Minnesota the test is that there must be such substantial evidence in the record sufficient to show or persuade the reviewing court that the action of the City Council in revoking a license was not arbitrary or capricious . See , e•g• , Country Liquors , Inc. , v. City Council of the City of Minneapolis , 264 N.W. 2d 821 , 824 -25 (Minn. 1978 ) ; and Sabes , supra , 120 N.W. 2d at 876 n. 7. The Hughes case footnoted in Sabes indicates that "sufficient com petent evidence" to sustain an administrative decision is the equivalent of a preponderance of the evidence test. Hughes v. Department of Public Safety, 2P�� Minn. 16, 273 N.W. 6.18, 623 (1937) . C. Chapter 364 Minn. Stat. 1986, ch. 364 , by its terms, applies only to the . use of convictions. It does not apply to misconduct, evidence of bad character , or to actions which sho w unfitness in character or � temperament ( and which may also be crimes) . Its patent legislative object is to prevent the use of the fact of a convic.tion, which carries a special stigma and which does not by itsel � reveal the particularized lack of gravity or culpability ' that circumstances might show. ' ':o read Chapter 364 otherwise , to bar all proof of actions . that may be crimes (regardless of whether charged, how charged , the differing standard of proof, and the widely divergent goals of the licensing regulatory process and the criminal syster�) is . to hat�dcuff licensing authorities. It would in effect con��ert the pi-ocedures and standards of administrative licensing law to a .criminal standard and procedure, with serious adverse effects on the police power goals of licensing . =t seems clear that section 364. 04 , in barring the use of arrest records , does so with reference to the arrest records � pertaining to the individual whose license is at issue. There is- . no definition of an arrest record in section 364. 04. But the Government Data Practices Act furnishes a guide as to what would be in an arrest record. See Minn. Stat. 1986 , section 13. 82 , • subd. 2. The one report submitted in evidence, that by Officer Rogers (Exhibit 5) , does not meet those criteria , and therefore should not be rejected by this tribunal . D. Prostitution Count 5 of the Notice of Hearing alleges as follows : 7 5 . The occurrence of acts of solicitation for prostitution and prostitution=related activities in the licensed premises , on the parking lot behind the licensed premises , and in the immediately adjacent area , all of which constitute ( 1) a nuisance , and (2 ) create or have created a serious danger to the public health, safety and welfare. Such actions have occurred on many occasions throughout 1987 and early 1988 . Minn. Stat. 1986 , section 609.74 (and section 231.01 of the Saint Paul Legislative Code) provide that a pub� ic nuisance occurs when " . . . by an act or failure to perform a legal duty (a person) intentionally . . . (1) . . . permits a condition . which unreasonably . . . endangers the safety, health , morals , � comfort, or repose, of any considerable number of in embers of the publ ic . . . . " � Section 31� . 06 (7 ) of the Saint Paul Legislative Code (hereafter , "Code") provides as a permitted basis for adverse action ( including) revocation that " ( t) he activities of the licensee in the licensed activity create or have created� a serious danger to the public hea.lth , safety or welfare . . . . Section 409.08 (6) of the Code prohibits all licensees from � permitting " . the licensed premises . . . to be us�ed as a resort for prostitutes or other disorderly persons . . . . � Sabes v. City of Minneapolis , 120 N.W.2d 871 , 878 -79 (Minn. 1963) , provides standards to be used here. "Mere presence" of ' orostitutes is not enough � and a single zct. of solicitation is not enough. But where the activities of prostitutes aree�iodgof in openly and on such a scale and over such a lengthy p time that any reasonable licensee would. know about them , the licensee can be held accountable. Sabes , at 878, places a duty � of inquiry on owners , removes the safety of ignorance , and requires the use of reasonable diligence to discover and address the problem. Sabes clearly provides that passivity and a failure to use preventive action is sufficient to justify revocation . In this case, David Fan and his employees ignored what must � have been all too obvious. There were consistently large num bers of prostitutes approaching potential cUStomers in the Belmont Club parking lot. Melendez tr . 41 , 44 ; Eisenmenger , tr . 110 , 112, 113 , 123; Meyer , tr. 66; and Lutchen , tr . 144 , 145. There were, of course, frequent and noticeable acts of solicitation in the area imm ed ia tely adj acent to the 1 icen sed prem i ses and parking lot , a fact going on at least to the knowledge of the employees and David Fan , and their professed lack of knowledge. Prostitutes used the licensed premises as a haven , as a place to 8 hide from police , a place to warm up. Melend ez , tr . 43 , 62. Prostitutes also used the licensed premises itself to solicit for prostitution . Rogers , tr . 138; Lutchen , tr . 146, 149=150. The licensee had to know of the acts of solicitation occurring in the bar . Officer Lutchen at one point repeatedly showed photographs of the prostitutes to bartenders and bouncers, but no action was taken . Lutchen , tr . 147 -149. The employees and David Fan never acted to stop the problem, (Lutchen, tr. 149, 151 , 159) until recently, that is after steps were taken to initiate a public hearing on their licenses. See , e.g. Baker , tr . 213 . As a result of acts of solicitation in the bar , enforcement actions • were taken by police officers. Lutchen, tr. 149-150 . David Fan admits responsibility for controlling prostitution 'in his bar and in his parking lot. Fan , tr. 281. But his employees unbelievably testify that they have never seen a problem in the parking lot, Baker, tr. 220; can't tell who are or who are not prostitutes in the bar, Weinhandl, tr. 228-229; have never observed a problem in the bar or parking lot with prostitutes , even though it is part of their respcnsibility, . Pape , tr . 196-197. One might reasonably infer that the fzee availability of pros.titutes was seen by the licensee as helpful for business given the type of entertainment provided by the bar ; or at least . was not worth spending money or effort to curtail . In any event , no change took place until recently, which . shows that m inimal reasonable ef forts could have addr�ssed the problem. See , e•g• Melendez, tr . 44 , 45; Eisenmenger , tr . 112; and Lutchen, tr. 163. The failure to use those efforts a year or more earlier establishes the bad faith and lack of sincerity of the licensee in his recent attempts to remedy the problem. . A flurry of activity in hiring an aggressive parking lot � attendant , and setting up and attending self=serving meetings _ with city officials does not rem ove the sting of past disregard and inactior.. David Fan himszlf is and was the undisputed boss, even up to the present as to dancers , and directed all his � empioyees. Pape , tr . 199, 200; Baker , tr. 218, 219; Weinhandl , tr . 230 , 23�=231; Osterman , tr . 255; and Fan , tr . 270. He is also responsible for the acts of his em ployees , both as a matter of agency law, and sections 4�9.14 and 4419. �f8 (S ) of the Code. " Nor can a licensee plead ignorance by delegating his responsibilities to any em ployee" . Sabes , 12H N.W. 2d at 878. Fan spent enough hours in the bar to be aware of every person and every type of activity taking place in it. Fan , tr . 283 ; Pape , tr. 201. His recent efforts at reform smack more of an attempt 9 � ' � . �P�- /�� to avoid punishment, than of a diligent and reasonable effort to change a bad situation . He and his employees, instead of admitting they recognized the problem and took no action, instead in consistent and similar testimony, deny they ever really knew there was a problem. This is not credible , given the testimony by Melendez, Eisenmenger , Roger s and .most of al1 , Lutchen . E. Unlawful Minor Employment • - Counts 3 and 4 of the Notice of Hearing allege as follows : 3. The unlawful employment by the licensee of a minor for sexual performance in violation of Minnesota ' Statutes , section 617. 246 on or about February 2 , 1988 . 4. Permitting a minor to engage in a sexual performance in violation of Minnesota Statutes , section 617.246, on or about February 2, 1988, on or visible in the licensed premises . !�:inn. Stat. 198b, section 617.246, makes it a felony offense to employ a minor (or to permit a minor) to engage in a sexual performance. A minor is a person under 18 years of age; a sexual performance can include a number of things as d2fined. In this case , it refers to acts of simulated sexual intercourse , lewd . exhibition of the genitals , and physical or simulated physical contact with female breasts or unclothed pubic areas in an act of apparent sexual stimulation or gratification. Under the . statute , the consent of the minor and mistake as to age are not defenses . In this case, the basis for adverse action is not that David Fan has been charged with an offense under section 617.246, nor that the type of dancing performed by the minor was obscene or immoral as to content . , The basis is that David Far,' s hiring of a thirteen=year old girl , under the circumstances which here showed a callous and reckless lack of inquiry as to her age, establishes misconduct under section 31�.06 (9) of the Code , and is a violation of a statute reasonably related to the licensed activity und er section 310. 06 (6) of the Code. Section 31�. 06 (9 ) provides tht adverse action against a license ( including revocation) may be taken if the " . . , licensee . . . has shown by past misconduct . . . that such 10 license . . . is not a personal of the good moral character or fitness required to engage in a licensed activity , business or profession." Section 3141. �6 (6 ) provides tht such action may be taken if � the ". . . licensee . . . has violated any of the provisions ... of any statute reasonably• related to the licensed activity, regardless of whether criminal charges have or have not been brouaht in connection therewith." The distinction is that this section requires a civil showing that David Fan did the act which law makes wrongful , as opposed to showing he should be convicted of a crime . T.D.M. was 13 years old when she was auditioned and hired � Tr. 85, 89. David Fan was at the audition and hired T.D.M. Tr . 9E -91. She filled out no employment application. Tr . 92. She did not produce any identification, and lied about her age. Tr. 98 , 93 , 89 , 181. She did get an UnBank cus�omer card , two to three weeks after she was hired , on December 8 , 1987. Tr. 93 , 95 . - All the licensee' s employees who testified stated that the . UnBank card is not an acceptable form of identification to , establish age. Pape, tr . 209; Weinhandle, tr. 232; Osterman, tr. 249 ; and Fan , tr . 277. T.D.M. thought Fan hired her , and thought she was working • for the Belmont Club. Tr. 9�, 106. Dav id Fan is clearly the boss , and alI his employees know he calls the shots. Pape , tr . 199 =2410; Baker , tr. 218, 219 ; Weinhandl , tr. 239, 230 �231 ; � Osterman , tr . 255; Fan , tr . 27P1. � On Feb.ruary 8 , 1988 , T. D. M. engaged in a performance observed by Officer Rogers , immediately before her arrest, that qualified .as a "sexual performance" defined ia Minn. Stat. 1986, Section 617.246 , and described above. Rogers , tr . 126 , 133= 135; City' s Exhibit S. Such report is not "a record of arrest" as � defined in Minn. Stat. 1986 , section 364. P14 (2) . It is a verbal ,' . written description of an event and actions by T.D.M. which he observed several days earlier. It is also admissible under the case of Sabes v. City of Minneapolis , 124� N.W.2d 871 , 877 =78 . ' (Minn. 1 � 63) . Presumably a document qualifying as a "record of arrest" would meet all or some of the indicia of "arrest data" as defined in the Government Data Practices Act, Minn. Stat. 1986 , section 13 . �2 , subd . 2. Exhibit 5 does not fit the characteristics of an arrest report . T.D.M. insists that she did not provide any identification at the time she was hired. Tr. 1J1. No identification was taken from her at the time of arrest other than the UnBank card. 11 � Rogers , tr . 138. Nancy Osterman testified , tr . 243 , that T.D.M. provided a birth certificate which was in turn shown to David Fan. Osterman has a definite motive for testifying falsely, whereas T.D. M. has no such reason. Osterman' s memory, while definite on the fact of a birth certificate , is vague and shaky on details . Tr . 243. Two points can be made. First , how you evaluate someone' s age is more than just physical characteristics. It also involves a level of maturity, speech, mannerisms and other assessments beyond physical development. The girl , T.D.M., who testified at the hearing , was clearly a person who was not ma�ture in many . ways. A reasonable person, being told she was 18, would inquire further and demand nzoof. Please note that at the audition T.D.M. was fully clothed. Tr. 96. Osterman' s testimony that T.D.M. was physically well=developed , tr . 257 , is self= serving , and does not mitigate the duty to inquire. T.D.M. as a witness was clearly a person you would want to ask more about if she said she was 18 years old , and you were hiring her as a nude dancez in a bar . � Second , even if the fact=finder fairly believes T.D.M. appeared to be 18 years old and no reasonable person would inquire further , the policy of the state law in Minnesota is to place the burden of absolute liability on the prospective er��loyer , to refrain from doing certain things with respect to teenagers under 18. In order to drink in a bar , the statute requires either a Minnesota driver's license or Minnesota oicture identification, or a passport. Minn. Stat. 1986 , section '340A. 5�3 , subd. 6. For th�e much more serious matter of hiring someone to do sexual . performances before men in a bar , David Fan required neither. The burden is on him. Cities are entitled to ask more of those . • who seek ta be licensed to sell liquor . David Fan' s action was misconduct , and irresponsible. Even after the initial hearing , T.D.M. worked for two to three mont�s , sometimes making $5� a night in tips pushed through the glass wall , tr . 97 =98 , and T. D. M. never obtained any identification other than the UnBank card. Tr. 89. Pape and � Weinhandl testified , and falsely so , that they carded T.D.M. . �every time she danced. Pape , tr. 2�2 =203; Weinhandl , tr. 232. Osterman contradicted their testimony, saying that the policy of repeated carding was started after T. D. M. was arrested . Osterman , tr . 248. The "repeated carding" policy is another example of a change made after they had 'been "found out" and does not show sincere reformation. The patently sham transfer of Dancing Angels from Fan to Osterman after the T.D.M. incident notwithstanding , Fan still calls the shots on the dancers and has 12 ' � � � �' - �� the power to do so , however infrequently exercised. Osterman , tr . 25�-252, 255. Counsel for the Belmont Club raised the issufrom Officer minor dancing in the bar by eliciting testimony Meyer about another underage girl being so employed. Meyer , tr. ? 8 =79. This shows that the T.D.M. matter was not ea� lold awas incident , and it also show s�ehadidhnott have any form of arrested by the police , identification. Meyer , tr . 79 • g. Employee Misconduct Counts 1 and 2 of the Notice of Hearing allege as follows : 1. The unlawful salebofadremployee of thekli ensee on the licensed premises y or about November 1� , 1987. • 2, Inter fer ence wi th pol ice an employeel of the performance of their assignment by licensee on or about January 23, 1988 - Pursuant to section 409.08 (5) of the Code " (e) very licensee olace of . is hereby :nade respan�o maintainhorder dand sobr ety1 in such business and require place of business." In so dsection �409 14 of the yCodea�andmSabes � to the 1 icenseholder. See v . City of Minneapolis , 124� N.W. 2d 871 , 878 (Minn . 1963 ) . � � The above actions in CO fare 1 se c i n 310t�J6 (i a of the Codee public health, safety and wel , and a violation of laws havi�ng �6 �aofnthe Codeatlonship to the licensed activity, section 310 ( ) Count 2 was amended by stipulation , tr. 70 , to January 14; , 1988 , to conform to the facts submitted. Meyer , tr . 65. The � conduct by the employee of the licensee constituted an intentional interference with a police officer in the perform ance of his official duties , in violation of Minn. Stat. 1986, section 609.5�. While an apology was made after the fa�tandh the pac t on apology was less t han f u l l , Me yer , tr . 75 , , potentially resulted in prostitutes and/or custom ers escaping detection and arrest. That action , together with the dru9theflicenseeCshow an neither of which appear to be challenged by attitude or outlook on the part of employees which could only 13 . . - have come from management. David Fan , poraof the Belmon tClubs own statements sets the policies and te Such policies until very recently were lax and in disregard of his duty to avoid hiring underage dancers, to clean prostitution out of his bar and parking lot , and to cooperate with law enforcement officers . The action in Count 2 also shows an awareness by the bouncers (or doormen) of what was in fact occurr ing in the parking lot , contrary to the testimonial assertions of other employees at the hearing who knew of no problems in the parking lot. See e.g. Baker , tr . 226. The action in Count -2 also shows a certain degree of " territorial control" over the parking lot and alley in back, which reinforces David Fan' s admission of � responsibility over it. Fan , tr . 281 . G. Summar The evidence fully justifies a finding of sufficient gro�inds for revocation of all licenses covering the premises where intoxicating liquor can be sold . Revocation also should include a finding of denial of the licensee' s application for license renewal. If revocation is not recom mended, a lengthy suspension of 6� days should be coupled with the recommendation that the Cou�cil .im pose conditions on the future conduct of the licensed business. These conditions should include: 1 . Mandatory parking lot attendants from noor� to � closing every day the bar is open , whose job shall be � . to discourage solicitation for prostitution in and near the parking lot. 2. Mandatory provision of the name and identification information for all dancers to the License Division . 3. Mandatorycontractual provisions, in any contract , oral or written , by the licensee with any person or firm supplying dancers requiring com pliance b y that � firm with condition 2 above. � 4. The elimination of any openings or apertures in the glass wall separating the licensed premises from the dancers. 5, Requirement for David Fan to personally participate in a neighborhood task force or committee to discuss problems relating to prastitution, litter , busloads of 14 . . . ��- i�a � patrons and noise suffered by the neighborhood ancl to recommend solutions by appropriate bar management policies . The question of whether it would be desirable or proper to impose any sanctions on the licenseholder , given his recent efforts to address (or at least, to seem to address) the problems in his bar was discussed above in the paragraphs relating to prostitution. To give this licensehold er a slap on the wrist no w would send the wrong message to all other 1 icenseholders and set a very bad precedent - that one can avoid sanctions by engaging in a flurry of ineetings and other efforts whenever you judge that the city has lost •patience with your recalcitrance and has started revocation proceedings. One should not have to ask • licenseholders to follow the law. Failure to follow the law, failure to police problems should subject them to proper penalties as authorized by law. The most effective enforcement of laws and regulations in bars can only be done by the licensees themselves, who know their � responsibility and exercise. An attitude that is casual to violations and that shirks responsibility until forced to do it, . makes license regulation very difficult indeed. The sincerity of , those who have that attitude , and make. a dramatic change after enforcement is started by the City, is questionable. The Respondent and its employees are in that questionable category . Respectfully submitted this day of June , 1988 . Philip B. Byrne . Assistant City Attorney � • Attorney for City of Saint Paul = I�icense Inspector , � 647 City Hall • Saint Paul , Minnesota : 551fd2 (612) 298-5121 . Attny. Reg . No . 13961 15 � �� -i�� =o, CITY OF SAINT PAUL ��° �:� �o �; OFFICE OF THE CITY ATTORNEY � wu�nm �- ',+ 1° �°0 �� EDWARD P. STARR, CITY ATTORNEY .;. ��`'��,��,��'``� 647 City Hall, Saint Paul.Minnesota 55102 612-298-5121 GEORGE LATIMER MAYOR RECE��ED July 13 , i9ss �� 1419a8 CITY ��ERK Mary F. Seymour COCHRANE & BRESNAHAN, P.A. 24 East 4th Street St. Paul, Minnesota 55101-1099 RE: Belmont Club Licenses Dear Ms . Seymour: The Council will hear the matter of the Belmont Club licenses on August 11, 1988 . Earlier in that weQk you might check with the City Clerk' s office to find out where it will be on the agenda (298-4231) . Very truly yours , � � . Philip B. Byrne Assistant City Attorney PBB: sjs cc : Aibert B. fllson : City Clerk � H�� r� t '�' �" �"�� p 1 �� :� � �,� t�`�"t�� COCHRANE & BRESNAHAN, P.A. RECEIVED ATfORNEYS AT LAW 24 EAST 4th STREET �� 8 SAINT PAUL, MINNESOTA 55101-1099 CITY CLERK JOHN A.COCHRANE JAMES R. BRESNAHAN TELEPHONE STEWART C.LOPER 612/298-1950 MARY F.SEYMOUR CABLE ADDRESS:COBRA RONALD D.ALLEY' BRIAN N.TODER" 'Also admitted in Texas "'Also admitted in Coloiado July 29, 1988 Albert Olson City Clerk for the City of St. Paul 386 City Hall 15 W. Kellogg Blvd. St. Paul , MN 55102 Re: In the Matter of the On-sale Liquor License for the Belmont Club (City-88-021-CG, 53-2101-2�427-G) Dear Mr. Olson: Enclosed herewith and served upon you please find a copy of RespondentTs Exeeptions to Findings of Faet, Conelusions and Recommendations in the above-entitled proceeding, together with a copy of the Affidavit of Service. On this date, the originals have been sent to the Administrative Hearing Office for filing. The Hearing before the City Council is currently seheduled for August 11 , 1988. Yours truly, COCHRANE & BRESNAHAN, P.A. BY� `�7 . � C�� Mary F. Seymour MFS/ple Enelosure • ��'" /s�v? � City-88-021-CG 53-2101-2427-G STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL . In the Matter of the On-sale Liquor License for the Belmont Club RESPONDENT'S EXCEPTIONS TO FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION I . INTRODUCTION Without waiver of any rights that Respondent may have in these and other proceedings, Respondent has no ob�eetion to the adoption by the City Couneil of the City of St. Paul of the Recommendations made by the Administrative Law Judge in this matter. These exceptions are submitted for the purpose of correcting errors in the Findings of Faet, Conelusions and Memorandum and for the purpose of preserving Respondent*s rights on appeal in this matter (if such an appeal is taken) and Respondent� s rights in other proceedings. The Administrative Law Judge has not considered any of the constitutional arguments raised by the Respondent herein and has made her Reeommendations '�without pre3udice" to the Respondent raising such arguments ��in the eourse of 3udicial review.'� Aecordingly, Respondent hereby expressly reserves the right to raise any and all sueh issues upon �udieial review of these proceedings, if any. II. EXCEPTIONS TO FINDINGS OF FACT A. Finding No. 1 : . . .Ms. Osterman received $250-300 per week salary from the Belmont and another bar to manage the dancers. On Mareh 15, Nancy Osterman, the manager of Daneing Angels, paid David Fan $20 and thereby purehased the stoek of Daneing Angels, along with $15-18 in liabilities. Now she receives approximately $100 per week of the $1 ,842 per week transferred to Dancing Angels from the Belmont. The rest of the $1 ,842 is used to pay dancers. These findings are ineorrect in the following partieulars: 1 . The uncontroverted testimony clearly indieates that prior to Ms. Osterman� s purchase of Daneing Angels, Inc. , her salary was paid by Daneing Angels--not the Belmont and another bar. Q. Previous to the transfer, had you received a salary from Dancing Angels? A. From--yes. Tr, at 25�. 2. The uncontroverted testimony elearly indicates that, prior to Ms. Osterman�s purchase of Daneing Angels, Inc. , her salary as manager was $250-300 per week for everything she did for Daneing Angels, Ine. All customers paid Daneing Angels, Inc.--not �ust the Belmont and another bar. Q. What was your total salary for-- A. For everythin�? The bars in Wisconsin? Q. --everything that you did for Daneing Angels before the transfer. A. 250-300 a week. Tr. at 25�. 3. The uncontroverted testimony clearly indieates after Ms. Osterman� s purehase of Dancing Angels, Ine. , she received ��[a]bout $100 more a week'� in salary. Tr. at 254. Emphasis added. -2- 4. The uneontroverted testimony elearly indieates that Ms. Osterman, as president and sole shareholder of Dancing Angels, Ine. , pays other expenses, sueh as workmen� s eompensation insurance, out of the fees received by Dancing Angels, Inc. Tr. at 252. 5. The uneontroverted testimony elearly indicates that Ms. Osterman also paid one-half of the attorneys' fees in the purchase of Daneing Angels, Inc. Tr. at 256. B. Finding No. 8s . . .She [T.D.M. ] was hired by David Fan. T.D.M. was hired and paid by Dancing Angels, Ine.--not by Mr. Fan. Plaintiff� s Exhibit 3; Respondent� s Exhibit A. In addition, the decision to hire T.D.M. was made by Naney Osterman, as manager of Dancing Angels, Ine.--not by Mr. Fan. Ms. Osterman arranged the audition and asked T.D.M. her age. Tr. at 90, 93. David Fan did not talk to T.D.M. during her audition. Tr. at 92. See also Tr. at 99. Ms. Osterman was present when T.D.M. signed her contract with Dancing Angels, Inc. and Mr. Fan had presigned the contract in 1985. Tr. at 240-41 . Furthermore, Ms. Osterman testified as follows: Q. Are you the person who interviews all the daneers? A. Yes. Q. And hires all the dancers? A. Yes. Tr. at 241 . -3- . . . Q. But during the time that you were manager, were you doing all the hiring of the girls, basieally? A. Yes. Tr. :at..259. _ � . C. Finding Number 14: � . . .David Fan was present in the Club : on Feb. 2, 1988. . . .While daneing, T.D.M. exposed her pubie areas and buttoeks by lifting her skirt and by squatting while facing males seated at stageside. While squatting, T.D.M. performed several pelvie thrusts and spread her legs in sueh a manner as to expose her inner vaginal area. During a second song, T.D.M. returned to the stage wearing only the top of her costume and continued to dance in a similar manner, ineluding the fondling and touehing of her breasts and genital area. During a third song, T.D.M. returned to the stage wearing only high-heeled shoes. She then eontinued to dance as previously described and also lay on her baek with her feet on the stage, while bending her knees at a 90 degree angle . In this position, T.D.M. bridged her back spread her legs, and performed numerous pelvie thrusts toward the patrons. This maneuver was aecompanied by the touehing and fondling of the breasts and genital area. 1 . There is no evidenee in the reeord to support a finding that Mr. Fan was in the Belmont on the night T.D.M. was arrested on a warrant. Indeed, the only evidenee as to whether Mr. Fan was in the Belmont on the night of T.D.M. 's arrest is to the contrary: Ms. Osterman: Q. Do you know if Mr. Fan was on the premises on the night that [T.D.M. ] got arrested? A. No, he wasn� t. Tr, at 257. -4- 2. The only evidenee to support the remainder of this ehallenged Finding was Offieer Rogerts police report. (Plaintiff� s Exhibit 5) . This poliee report was erroneously admitted into evidenee in contravention of Minnesota Statutes §364 et seg. Minnesota Statutes §36�.04 provides, in relevant part: The following eriminal records shall not be used, distributed, or disseminated by the state of Minnesota, its agents or political sub- divisions in connection with any application for publie employment nor in connection with an application for a license: ( 1 ) Records of arrest not followed by a valid conviction. . . . Furthermore, Minn. Stat. §364.07 provides: The provision of sections 36�.01 to 364. 10 shall prevail over any other laws and rules whieh purport to govern the granting, denial, renewal, suspension, or revocation of a license or the initiation, suspension, or termination of public employment on the grounds of convietion of a crime or erimes. In deciding to grant, deny, revoke, suspend, or renew a license, or to deny, suspend, or terminate public employment for a laek of good moral charaeter or the like, the hiring of licensing authority m� consider evidence of conviction of a erime or crimes � only in the same manner and to the same- effect as provided for in sections 36 01 to 3 . 10. Noting in section 3�.01 t��. 10 shall be construed to otherwise effect relevant proceedings involving the granting, denial , renewal, suspension, or revocation of a license or the initiation, suspension, or termination of public employment. Emphasis added. There has been no evidence submitted that Mr. Fan or MFL, Inc. has ever been convieted of a erime. In eaeh case that has dealt with this issue sinee the enaetment of this statute, -5- � ��'-/�� the reports dealt with convietions or were not considered. See e.�. , Vruno v. Schwarzwalder, 600 F.2d 124 (8th Cir. 1979) (guilty plea) ; Matter of Minn. Joint Underwriting Ass�n. , �408 N.W.2d 599 (Minn. App. 1987) (guilty plea) ; Miller v. City of St. Paul, 363 N.W.2d 806 (Minn. App. 1985) (convictions) ; Godfather, Ine. v. City of Bloomington, 375 N.W.2d 68, 71 (Minn. APp. 1985) ("extraneous matters were not litigated and would not be an appropriate basis for lieense denial .") ; Peterson v. Minneapolis City Couneil, 27u N.W.2d 918 (Minn. 1979) (convietions) . Furthermore, Officer Roger� s report formed the alleged factual basis for the felony eharges currently pending against Mr. Fan. As sueh, it elearly fits within Minn. Stat. §13.82(2) (e) as " . . .other legal basis for action; §13.82(2) ( 1 ) "The manner in which ageneies received information that led to the arrest. . ."; and §13•82(�) (f) ��A brief faetual reconstruetion of events associated with the action[ ]". Therefore, it is inappropriate to charaeterize this report as simply "inaetive investigative data." Thus, the admission of Plaintiff� s Exhibit 5 over Respondent� s ob,jeetion is elearly erroneous and the City Couneil must ignore Officer Roger� s report. , 3• The only admissible evidence coneerning the content of T.D.M. ' s dance was Ms. Osterman� s testimony: Q. Have you seen the police report that was entered into evidenee as to what [T.D.M. ] did on the danee floor? A. Yes, I did. -6- Q. In the audition that you had at the time that she had auditioned, and at the time that Mr. Fan, apparantly, was at this, did she do any of those things deseribed in that police report? A. No. She didn� t that night either, because I was there. I never had trouble with her on that. Tr. at 260. Therefore, there is no admissible evidence to sustain the Finding coneerning the content of T.D.M. 's dance on the night of her arrest on a warrant. �. If the City Couneil determines that Plaintiff� s Exhibit 5 is inadmissible despite Minn. Stat. §36� et seg. , then the report should be held inadmissible under Rule 803(6) and (8) of the Minnesota Rules of Evidenee and Rule 1400.7300 of the Rules of the Office of the Hearing Examiner, or it should be afforded very little weight. Officer Rogers admitted (Tr. at 134-135) that Plaintiff� s Exhibit 5 was not made eontemporaneously with Ms. Monn� s arrest outside of the licensed premises, but that it was made fourteen days after her arrest. The manner and circumstanees under which Officer Roger�s report was procurred indicates a lack of trustworthiness, as follows: a. Aecording to Officer Roger� s testimony, his first report did not deseribe the daneing. Tr. at 141 . As a poliee officer with over five years of experienee, it is reasonable to infer that if Offieer Rogers had observed a person daneing, that he had reason to believe was a minor, and the content of that dancing eonsisted of an alleged ��sexual performanee, �� he would have included it in his initial report. -7- It was only after another officer had a conversation with the City Attorney, that the other offieer advised him that they [the ____ City Attorney] needed and wanted a supplemental report. This strongly suggests that the purpose of the second report was not to "record matters observed pursuant to duty imposed by law" but to form a "faetual�� basis for other purposes. Thus, this Tribunal should conelude that the subsequent report, Plaintiff� s Exhibit 5, ��laeks trustworthiness" and is not "the type of evidence on whieh reasonable, prudent persons are aecustomed to rely in the conduct of their serious affairs." b. Officer Rogers testified that he was 40 to 50 feet away from the danee studio and was on the opposite side of the bar at the time of T.D.M. danee. Tr. at 130, 135. Even if his view was unobstrueted by bartenders or patrons sitting at the bar, sitting at the rail or moving between him and the glass panels (which lacks credibility) , it is unlikely that anyone could see so far with such clarity. Therefore, Officer Rogerts report should be held to be inadmissible or be given very little weight. D. Finding Number 17: . . .Offieer Lutehen believes he has made one arrest in the Belmont parking lot. . . .He has never made an arrest inside the bar for solicitation, but he has made 20-25 arrests outside the bar for solieitation inside. 1 . An additional Finding should have been made eoneerning the arrests made by Officer Lutehen for prostitution- related activities in the surrounding area. Officer Lutehen -8- testified that he believed he made the following arrests: one ( 1 ) in Lendways� s lot, two (2) in Skipper�s lot, twenty to thirty (20-30) on the corner of Sherburne and Dale, twenty (20) on University and Dale, as well as numerous arrests at St. Albans and Sherburne and Kent and Sherburne. Tr. at 162-163. 2. The Finding related to arrests arade as a result of solicitation inside the Belmont is not supported by the evidence. Officer Lutchen testified that he had never made an arrest for prostitution-related activities inside of the licensed premises (Tr. at 149, 158) because "I didn' t have sufficient evidenee to make an arrest within the bar[ ]n (Tr. at 159) . Indeed, there is no evidenee that the alleged solieitation aetually took place in the Belmont. It eould have taken plaee in the street or on the sidewalk. Tr. at 150. There is no testimony by Offieer Lutehen that he aetually observed the solieitation within the Belmont and then arrested the parties while they were performing the "trick�� or that the parties admitted that the solicitation took place within the Belmont. 3. An additional Finding should have been made coneerning the neighborhood witnesses. Each of the neighbors testified that they knew that they were moving into an area known for prostitution. Melendez, Tr. at 36; Eisenmenger, Tr. at 124. -9- III . EXCEPTIONS TO THE CONCLUSIONS AND MEMORANDUM Beeause the Administrative Law Judge did not consider Respondent' s constitutional challenges in making her Conclusions and Recommendations and because the Administrative Law Judge has expressly preserved those challenges for the judieial review, if any, of these proceedings, Respondent (without waiver of any constitutional argument that was previously raised in these proceedings) will not repeat those constitutional challenges here. Respondent does, however, take exeeption to the following determinations contained in the Memorandum. A. "Permitting�� A "Sexual Performance" : 1 . The City failed to present any admissible or eredible evidenee that T.D.M. aetually engaged in a "sexual performanee." Supra at 5-8. 2. The City has failed to present any evidenee that Mr. Fan or MFL, Ine. (the licensee) intended that T.D.M. engage in a "sexual performanee." Indeed, the evidenee is to the i contrary. T.D.M. did not dance as deseribed in Officer Roger� s report at her audition; T.D.M. had not daneed like that before; and T.D.M. did not dance in that manner on the night in question. Tr. at 260. Furthermore, the Dancer Agreement that was signed by T.D.M. (Respondentts Exhibit A) requires that the dancers -10- ��- /�� abide by all applicable laws, statutes and regulations governing exotie daneing; there were and are signs in the dressing rooar prohibiting that type of activity (Respondent� s Exhibit D) and the dancers were and are periodieally instrueted about what is eontained in the St. Paul Legislative Code coneerning exotic daneing (Respondentts Exhibit C; Tr. at 236-237) . 3• The City has failed to present any evidence that Mr. Fan was present the night of T.D.M. �s arrest. Indeed, the evidence is to the contrary. Supra at 4. 4. The City has failed to present any evidence that Mr. Fan or an employee of MFL, Ine. actually saw T.D.M. engaging in a "sexual performance.�� 5. The City has failed to present any evidenee that T.D.M. or any o�her daneer had ever engaged in a "sexual performance" in the past. Therefore, there is insufficient eaidenee from whieh the Administrative Law Judge could draw any adverse inferences coneerning ��permitting" a "sexual performanee." B. Seetion 310.06(b) (9) : As the Administrative Law Judge correctly points out, Seetion 310 of the St. Paul Legislative Code does not eontain a provision for vicarious liability. As the uneontroverted testimony establishes, Mr. Fan was not in the establishment when T.D.M. was arrested. Tr. at 257. Therefore, Seetion 310.06(b) (9) is inapplicable. See also supra at 4. Furthermore, the City has failed to present any evidence that Mr. Fan laeks moral charaeter or fitness. There -11- was no evidenee presented that could conceivably prove, under any standard of proof, that Mr. Fan intended to hire a minor or that Mr. Fan knew, encouraged or eondoned "sexual performances. " The evidenee is to the contrary. Supra at 4-8. The City presented no evidenee that Mr. Fan knew, eneouraged or condoned the use or sale of drugs, disrespect or non-cooperation with the police, or prostitution or prostitution-related activities. The evidence is to the contrary. E.�. , Tr. at 75-76, 138-139, 213-214, 225-227, 273. Finally, Mr. Melendez testified that Mr. Fan has always been a gentleman, has been willing to work with the community groups (Tr. at 48) , but the coarmunity is unwilling to work with him because of the nude daneing off from the licensed premises (Tr. at 58-59) • Kathleen Zaehary� s charaeter testimony is undisputed (Tr. at 261 ) . Therefore, the City has failed in its burden of proof under Section 310.06(b) (9) . IV. CONCLUSION Based upon the record of these proceedings before the Administrative Law Jud�e and upon the Findings of Faet, Conelusions and Reeommendations of the Administrative Law Judge as modified by the Exeeptions set forth herein, Respondent respectfully requests that the City Couneil for the City of St. Paul: -12- 1 . Amend the Findings of Fact consistent with the Exeeptions set forth herein; and, 2. Adopt the Findings of Fact (as amended) and Conelusions as submitted by the Administrative Law Judge; and, 3• Take no adverse aetion against the license or the lieensee; or, 4. Adopt the Recommendations set forth by the Administrative Law Judge. Respectfully submitted, COCHRANE & BRESNAHAN, P.A. By � Ja es Bresnaha A ty. .D. No. 1 307 Mary F. Seymour Atty. I .D. No. 99�5� 24 East Fourth Street St. Paul , MN 55101 (612) 298-1950 Attorneys for Respondent Dated this 29th day of July, 1988. -13- , � a �- / To�C� STATE OF MINNESOTA AFFIDAVIT OF SERVICE BY MAIL COUNTY OF RAMSEY Patricia Christ�aener, being duly sworn, says that on July 29, 1988, in St. Paul, Minneaota she served the attaehed Respondent� s Exceptions to Findings of Fact, Conelusions and Recommendations, together with a copy of the Affidavit of Service, upon the City Clerk for the City of St. Paul/Albert Olson, the City Attorney for the City of St. Paul--Civil Division/Phil Byrne, and Ms. Carol Grant c/o Kurzam, Grant, Manahan, Bluth & Barker, by depositing a copy thereof, properly enveloped, with postage prepaid, and addressed to them at: Office of City Clerk City Attorneys� Office 386 City Hall 647 City Hall 15 W. Kellogg Blvd. 15 W. Kellogg Blvd. St. Paul , MN 55102 St. Paul, MN 55102 Atten: Albert Olson Atten: Philip Byrne Ms. Carol Grant e/o Kurzam, Grant, Manahan, Bluth & Barker 240� Stevens Avenue So. Minneapolis, MN 5540�4 the last known address of such persons in the post-office at St. Paul , Minnesota. � ^ � (ug- .�s�..�-�" � �Y\ � Patricia Christjaener� Subscribed and sworn to before me this 29th '"""^^^"�^'�`^^^^^^^^^^^^^�,A, �,� �: „�� . DAWN J. PROULX q p NOTARr PUBLIC-MINNESOTA day �f July� 1 90�. ��..• RAMSEY COUNTY My Comm.Explres Mey 16,19�1 MvWVWWVWVWyyyyVVWVVWyyyyyyyVM ✓/ v Notary P lic ,� � . ��'- i�� 6 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS - FOR THE CITY OF ST. PAUL In the Matter of the RESPONDENT'S NOTICE On-sale Liquor License OF MOTION AND MOTION for the Belmont Club At the Hearing currently seheduled in the above-entitled matter beginning at 9:30 a.m. on May 2�4, 1988, or as soon thereafter as eounsel may be heard, in the 4th Floor Auditorium of the St. Paul Publie Library, 90 West Fourth Street, St. Paul, Minnesota, before The Honorable Carol Grant, Administrative Law Judge, Respondent, through his attorneys, Coehrane & Bresnahan, P.A. , 24 East Fourth Street, St. Paul, Minnesota, will move the Tribunal as follows: 1 . To dismiss these proceedings for failure to state a elaim upon whieh relief can be granted; and, 2. To dismiss all Counts eontained in the May 3, 1988 Notice of hearing Por laek of sub�eet matter �urisdietion. If the Motion(s) to Dismiss are denied, then to move the Tribunal to stay these proceedings pending an immediate appeal and to certify, as important and doubtful, the eonstitu- tional questions raised in the aceompanying memorandum, or, in the alternative, to stay these proceedings pending a final determination of the eriminal proeeeding. � , �. If the Motion(s) to Dismiss and/or the Motion to Stay are denied, then to move the Tribunal, as follows: 1 . To establish the burden of proof and the evidentiary standard to be utilized in these proceedings; and, 2. To limit the seope of admissible evidence. In addition, eounsel will move the Tribunal for reasonable eosts, expenses and attorneysf fees incurred in bringing these Motions. These Motions are based upon the First, Fifth and Fourteenth Amendments to the Constitution of the United States; upon Article 1 , Seetions 3 and 7 of the Constitution of the State of Minnesota; upon Minnesota Statutes §§3�OA et seg. and 364 et s�ce . ; upon Rule 103.03(h) of the Minnesota Rules of Civil Appellate Procedure; upon Rules 12.02( 1 ) and (5) of the Minnesota Rules of Civil Procedure; upon Rule 1400.6600 oP the Rules of the State Offiee of Administrative Hearings; upon the aecompanying Memorandum in Support of Respondent�s Motions; and upon the arguments of counsel. Respeetfully submitted, COCHRANE & BRESNAHAN, P.A. By ame . Bresnahan Atty. I.D. No. 11307 Mary F. Seymour Atty. I.D. No. 9945� 24 East Fourth Street St. Paul, MN 55101 (612) 298-1950 Dated this �� day of May, 1988. -2- �'�'��.� ,� COCHRANE & BRESNAHAN, P.A. ATfORNEYS AT LAW 24 EAST 4th STREET r�.�� ,�.D SAINT PAUL, MINNESOTA 55101-1099 111� +� 2 '19$8 JOHN A.COCHRANE ��k, �p� JAMES R. BRESNAHAN ��U'�TIVE TELEPHONE STEWART C.LOPER HEARINQS 612/298-1950 MARY F.SEYMOUR CABLE ADDRESS:COBRA RONALD D.ALLEY` BRIAN N.TODER" 'Also admitted in Texas � "Also admitted in Colorado June Z 1 � �9 O� Administrative Hearings Office 500 Flour Exehange Building 310 - 4th Avenue South Minneapolis, MN 55�15 Attention: Office of Hearing Examiner Re: In the Matter of the On-sale Liquor License for the Belmont Club Dear Sir or Madam: Enelosed herewith please find a copy of Respondentts Final Argument for the above-entitled matter. Yours truly, COCHRANE & BRESNAHAN, P.A. By= (��J �• Se Mo �,` � Y Mary F. Seymour MFS/ple Enelosure . - ��'J/�� 6 � � R�C�IV'�D � JUN 2 2 1�� YI�S'�RATlIIE I�IR� STATE OF MINNESOTA OFFICE OF THE ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of the - On-sale Liquor License - - . _ . - - _ _ _ _ _ - - - - ---- . _ for the Belmont Club _ _ - - - - - - - - - - - - -- - - - - RESPONDENT'S -FINA� ARGUMENT - - - - - -- --- - -- , • INTRODUCTION Respondent hereby refers to all the arguments contained ' in Respondent� s Memorandum in support of the Pretrial Motions and ineorporates them by reference as if fully set forth herein, exeept for Section V.B. at page 32-33, whieh is moot. Because those arguments have been set forth previously, this argument will concentrate on the questions raised by this Tribunal and a . diseussion of the evidence. ARGIIMENT THE LICENSED PREMISES _ DO NOT INCLUDE THE DANCE STUDIO OR THE - PARKING LOT - - _ _ _ _ -- Minnesota Statute §3�40A. 101 ( 15) defines "licensed premises" as "the premises described in the approved license applieation." Minnesota Statute §340A.�410(7) states: "A retail license to sell any aleoholic beverage is only affective for the compact and contiguous space specified in the approved _ license application. Similarly, Section 409.06(5) of the St. Paul Legislative Code defines licensed premises by stating, in relevant part that: No "on-sale" . . .license shall be effective beyond the compaet and contiguous space named in such license and for which the same was granted. . . . All licenses granted hereunder - shall set forth the exaet location within the building structure where sueh sales may be made and no sale shall be permitted except in that part of the premises defined in the license. . . . . A. Dance Studio.--Plaintiff� s Exhibit 6 establishes that the address of the licensed premises is "615 University Avenue" and that liquor is to be served only in the "main bar area." Furthermore, the testimony establishes, beyond a reason- able doubt, that the dance studio is not part oP the licensed premises as follows: 1 . The dance studio has a separate address, a separate entrance and there is no aecess from __ the Belmont Club. For example: _ _ A. Ms. Weinhandl: Q. "And the other address is �490 North Dale, isntt it?" _ _ _ A. "I believe so, yes." � - -- -- � � - - Q. "So that the address of the licensed � premises and the address of where the dancers are, is 2 separate addresses?" A. "Yes, it is." Tr.p. 233 1. 10-1�. B. OfPicer Ro ers (while discussing Plaintiff� s Exhibit . Q. " . . .So there� s a separate entranee into this compound here from the Belmont Club; is that true?" _ __ . _ _ A. "There' s an outside entranee, yes." - -- -- - Q. "And to your- knowledge, is that the only entranee into this compound where there' s a dressing room and a dance floor?" A. "I believe it is, yes. I couldn� t say that it� s absolutely positively - - - � - - the only entrance, but I believe it is, yes." Tr.p.. 136 1. 6-10. Accord, Officer Lutehen, Tr. 167 at -�9; Mr. Carchedi , Tr. 180 at 12-15. C. Ms. Monn: ' Q. "Can you deseribe the dance floor?" A. "Itts just a danee floor with glass around it. It's a different part of --- - - the building." Tr.p.87 1. 13-15. -2- a 2. No liquor is served or a1loKed in the danee studio. For example: Ms. Monn: Q. " . . .And that when you were in the dressing room, there was no intoxicating beverages in that seetion of the building, was there?" A. "No." Q. "And there was no service of intoxicating beverages in that area at all?" A. "No." Tr.p. 10�4 1. 17-23• 3. The City has taken the position that, for a period of ten or twelve years, the danee studio is not part of the licensed premises. For example: Mr. Carchedi: _ __ _ _ _ _THE COURT:_ "So that _glassed-off ar.ea _ is not part of the licensed premises?" THE WITNESS: "They sell on-sale liquor. That is correet." . . . Q. "And that entertainment lieense, as has been issued to these five bars, allows them to have nude daneing behind this window; is that true?" A. "I have always been of that opinion, yes." Q. "And that has been true over a period of some ten or twelve years; is that true?" - - - - - A._ _ _ "That is correct." _ Tr.p.. 179 _ 1_. 13-16, - - p. 181 1. 2-8. Aecord. Mr. Carchedi , Tr.p. 5 1. 1-12. Because the City, over the past ten or twelve years, has taken the position that there is no violation of any law or ordinance relating to the sale of liquor iP nude daneing takes place behind glass walls because the dancing does not occur on the licensed premises, the City cannot now be heard to argue that the dance studios are, for the purposes of these proceedings, -3- . �'�-i�a � part of the licensed premises. To do so under these circumstances is not only arbitrary and capricious, it violates the licensee' s constitutional rights to due process, equal protection and freedom of expression under both the state and federal constitutions. Thus, this Tribunal must find and eonclude that the danee studio is not part of the licensed premises. 2. Parking Lot.--Although off-street parking may be required for a particular location to qualify as licensed premises, the parking lot itself is not part of the "licensed premises." It is not part oP the location described in the license application or on the license itself (Plaintiffst Exhibit 6) and there was no evidenee presented that liquor was ever sold or was ever attempted to -be -sold in-the Belmont - - - - - �arking lot. Furthermore, the licensing scheme itself evidenees an intent to base the off-street parking requirement upon only a portion of the licensed premises (Section 409.08[ 11 ] of the St. Paul Legislative Code) . Off-street parking is, under _ . _ - - - - - - - - - - - -- certain circumstances, a requirement in order to obtain an - - --- on-sale liquor license but the licensee could not serve liquor in the parking lot pursuant to the on-sale license. The Code provides separate and additional requirements to obtain -- an on-sale license which includes outside service (Section �09.06[5] ) . Therefore, the City cannot argue and this Tribunal may not find or conelude that the parking lot is part of the "lieensed premises." -�- , . �'�'- i�� POLICE REPORTS AND RECORDS, TOGETHER WITH ALL TESTIMONY RELATED THERETO, THAT HAVE NOT BEEN FOLLOWED BY A VALID CONVICTION MUST BE EXCLUDED FROM THE EVIDENCE IN THESE PROCEEDINGS PURSUANT TO MINN. STAT. §36�.01 et se . Respondent hereby refers to and incorporates by reference pages 31 through 32 of Respondent' s Memorandum as if they were fully set forth herein. In addition, the City relied upon Sabes v. City of .. Minneapolis, 265 Minn. 166, 120 N.W.2d 871 ( 1963) as to the admissibility of police reports. The City' s reliance on Sabes is misplaced. Firstly, the issue in Sabes involved an exeeption to the hearsay rule--not a statute which excludes specified records under specified circumstanees. Secondly, Sabes was decided in 1963• Minn. Stat. §36�+.01 et se . was enaeted in 197� and revised in 1986 and 1987. Thus, it must be presumed that the Minnesota Legislature intended to limit the scope of the Sabes decision. See 17 Dunnell' s Minn. Digest 2d Statutes §5.04(a) -(3d ed. 198�4) ("Where a statute is not obviously a reenactment or revision of a former statute, it must be assumed that the legislature intended to make some ehange in the existing law. It may be assumed that the legislature knew the existing law on the sub�eet.") The City has presented no evidenee that MFL, Ine. or Mr. Fan was ever convieted of any crime. Therefore, Plaintiff' s Exhibit 5 is clearly inadmissible under Minn. Stat. §36�.0�4( 1 ) . The City cannot argue that Minn. Stat. §36�.0�4( 1 ) will apply only -5- if the City seeks adverse aetion in the form of non-renewal of the license but does not apply if it seeks a diPPerent form of adverse action based upon lack of moral character (See, e.g. §310.06[b] [9] ) of the St. Paul Legislative Code) . Such an argument is clearly contrary to Minn. Stat. §364.07, which states: The provision of seetions 36�.01 to 36�. 10 shall prevail over any other laws and rules which purport to govern the granting, denial, renewal, suspension, or revocation of a lieense or the initiation, suspension, or termination of publie employment on the . grounds of convietion of a erime or erimes. In deciding to rg ant, deny, revoke, suspend, or renew a license, or to deny, suspend, or terminate publie employment for a lack of good moral character or the like, the hiring or licensing authority � consider evidence of conviction of a erime or crimes but only in the same manner and to the same effect as _ . _ _ _ — — _ provided for in sections 36�4.01 to 3 . 10. Nothing in section 3�4.01 to 3 �1. 10 shall be construed to otherwise affect relevant proceedings involving the granting, denial, renewal , suspension, or revocation of a license or the initiation, suspension, or termination of publie employment. Emphasis added. Therefore, Plaintiff' s Exhibit 5 must be exeluded from the evidence that is- admitted in these proceedings and this Tribunal must disregard any testimony related thereto. _ . ADVERSE .ACTION ON THE BASIS OF VICARIOUS RESPONSIBILITY IS INAPPROPRIATE IINDER THE EVIDENCE PRESENTED AT THE HEARING. In order to take adverse aetion against a license or licensee on the basis of vicarious responsibility for the acts of others, the City must satisfy its burden of establishing that the -6- acts complained of fit within a statute or ordinanee. The license-holder' s vicarious responsibility under the Liquor Control Act is set forth in Minnesota Statute §3�OA.501 which states: Every licensee is responsible for the conduct in the licensed establishment and any sale of alcoholie beverage by any employee authorized to sell aleoholic beverages in the establishment is the act of the licensee for the purpose of all provisions oP this ehapter . except seetions 3�OA.701 , 3�OA.702, and 340A.703. Emphasis supplied. __ _ The license-holder� s vicarious responsiblity under Chapter 409 of the St. Paul Legislative Code is set forth in two sections. Seetion �09:08(5) Provides: - -- - _ _ __--- - - - -- Every licensee is hereby made responsible- for the conduct of his place of business and required to maintain order and sobriety in such lp aee of business. Emphasis added. Seetion �409. 14( 1 ) provides: Any act by any elerk, barkeeper, agent, servant or employee of any licensee here- - - under, in violation of this_ ehapter_ shall be deemed the act- of the employer and licensee - - - - of sueh place as well as that of such clerk, barkeeper, agent, servant or employee, and every such employee and licensee shall be liable to all the penalties provided for the violation of same equally with said elerk, barkeeper, agent, servant, or employee. - - In addition, the City must satisfy its burden of establishing that the license-holder knew or recklessly disregarded the faets that such unlawful aets were being perpetrated. A licensee is charged with knowledge of the illegal aetivities of others in the "conduet of his place of business" -7- only where the evidence establishes that the licensee knew that the place of business was frequented by such persons and numerous convictions resulted Prom aets that occurred on the premises. Sabes v. City of Minneapolis, 265 Minn. 166, 120 N.W.2d 871 , 879 ( 1963) . Furthermore, The mere presenee of persons of immoral character has been held not to violate a statute prohibiting the uae of a bar as a place "to which people resort for purposes _ whieh are in�urious to the publie morals," there being nothing unlawful about permitting such persons to patronize bars and restaurants in the absence of proof that they committed violations on the premises. Id. at 878. A. Violations Of The Li uor Control Act And/Or Chapter �409.--The evidence presented at the hearing establishes, beyond a reasonable doubt, that there were no violations of the Liquor Control Aet or Chapter 409: For example: - - - - - -- - - 1 . There was no testimony eoncerning any - - - - - - wrongful sale or possession of intoxicating liquor. The testimony is consistent; there has never been a liquor violation. See- e.�. , Carchedi Tr.p. 173 at 22-25; Fan, Tr.p. 27�4 at 9-11 . 2. The testimony proved that the dancing takes place off the licensed premises and is appropriately licensed. Supra at 1-�4. -8- -- ��- ��r� � The City has presented no evidence to the contrary. Therefore, that section of Minn. Stat. §340A.501 dealing with the sale of intoxicating liquor is inapplicable. Similarly, Section �09. 1�4( 1 ) is inapplicable because there was no aet alleged or evidence presented of a violation of Chapter 409. Pages 2 through 6 of Respondent' s Memorandum in Support of Pretrial Motions are hereby incorporated by reference as if fully set forth herein. B. Acts or Conduet Inside Versus Outside of the Lieensed Premises.--By its terms, Minnesota Statute §30�4A.501 makes the licensee "responsible for the conduct in the licensed establishment." As diseussed surpa, at 1 through �4, the licensed - - - premises are located at 615 University Avenue--not in 490 North - � Dale, not in the parking lot, not on the sidewalk, not on an MTC beneh, not in the alley and not on the street. Similarly, Section �09.08(5) makes the licensee "responsible for the eonduct of his lp ace of business and required to maintain order. . . in sueh lp ace of business." - - The business of -MFL, Inc. d/b/a The Belmont Club is that of a bar and restaurant, and its place of business is at 615 University Avenue and at no other place. - There is no evidence of any arrests, let alone convietions, of prostitution or prostitution-related activities in the licensed premises. �� Indeed, the testimony is to the contrary. For example: �� Although Officer Lutchen speculates that he made 20 to 25 arrests off the licensed premises Por solicitation in the licensed premises, his description of the occurance contains no evidence of solicitation in the licensed premises. _g_ Ms. Weinhandl: Q. "To your knowledge, has there ever been an arrest for prostitution within your premises?" A. "Within our premises, no sir." Tr.p. 22� at 1. 18-20. Officer Lutchen: Q. "And at any time did you make an arrest within the Belmont bar for prostitution?" A. "No, I did not." Tr.p. 158 1.22-2�. Accord Tr.p. 161 1. 13-15. Even if this Tribunal coneludes that the "licensed . . premises'� ineludes the parking lot or that the lieensee is responsible for the conduet of his business in the parking lot, there was no evidenee presented coneerning any conviction of prostitution or prostitution-related activities in the parking -lot. The only testimony pres-ented was the speculative testimony of OPficer Lutchen of one possible arrest in the parking lot, as follows: OfPicer Lutchen: Q. " . . . [H]ave you ever made an arrest in the parking lot?" _ . _. _. _ _ _ A. _ _ "I. believe one. I can�t be positive on that. - - - - - I believe there -was one arrest made." - - Q. "Do you know when that would be?" A. "I'm not positive on that, no." Tr.p. 161 at 1. 17-18. One speculative arrest is simply insufficient to sustain the City' s burden oP proof. Nor is a single act of solicitation enough to justify a license revocation under a statute whieh prohibits the licensee from permitting the premises to become disorderly. Sabes, 120 N.W.2d at 878. This is particularly true when this one speculative arrest is eompared to the arrests -10- made by Officer Lutchen in the surrounding area: arrest of a "pimp" in Lendway' s parking lot in early 1987; two (2) arrests in Skipper' s parking lot in the last 18 months; twenty (20) to thirty (30) ("guesstimation" ) at the corner of Sherburne and Dale; twenty (20) ("guesstimation) at University and Dale; St. Albans and Sherburne is a very active area; and "several" at Kent and Sherburne. Tr.p. 162 at 6-25 and 163 at 10-19 . C. Vicarious Responsiblity of Acts or Conduct of � Employees.--In diseussing licenseets responsblity for his __ employees in the "conduct of his place of business," the Minnesota Supreme Court has explained, - - - The- legislative intent as- expressed -in - - -- - - - that section seems clear. The licensee makes his own ehoice of servants and managers. He and he alone chooses those with whom the conduet of the place is to be left, and for their conduct, within the field of their employment, he is responsible. . . .his liability would, of course, follow, provided the harm came about while the servant was acting in furtherance of his masterts business and within the scope of his employment. - - - - - - - - - State v. Sobelman, 199 Minn. 232, 271 N.W. �48�4, �486 ( 1937) . Thus, the licensee has vicarious responsibility if the aets and conduct of his employees are "within the field of their - � employment�� , "in furtheranee of his masterts business" and "within the scope of his employment." The testimony establishes, beyond a reasonable doubt, that even though Randy Pape was convicted of possession with intent to distribute while he happened to be employed by the -11- licensee, Mr. Pape was not within his "field of employment" , was not "in Purtheranee of his masterfs business" and was not "within the seope of his employment." He was arrested after 10:00 p.m. (Meyer, Tr. p. 70 at 20) but his hours oP employment were 11 :00 a.m. to 4:00 p.m. (Weinhandl Tr. p. 225 at 5-11 ) . He clearly violated the established rules of the lieensee and was disciplined because of it (Weinhandl Tr. p. 225 at 12-25 and p. 226 at 1-9) . Debra Fox, who was hired as an independent contraetor by Dancing Angels, Inc.--not MFL, Ine. �See Respondent�s Exhibit A)--was similarly diseiplined. Id. When the licensee heard oP a second violation of the rules, Mr. Pape's employment was terminated. _ _ _ _ _ _ - Because Mr. Pape was acting- outside of the seope of his employment and not acting in furtherance of the lieenseets business, and beeause he was not in the licensed premises, the licensee cannot be held to be vicariously liable for his wrongful acts. THE CITY HAS FAILED TO - - - - - - - SATISFY ITS BURDEN OF - - - PROVING A NUISANCE A. Public Nuisance.--Minnesota Statute §617.8�(2) ( 1 ) defines a publie nuisanee, in relevant part, as: three or more misdemeanor convictions or two or more convictions, of which at least one is a gross misdemeanor or felony, within the previous two years for aets of prostitution or prostitution-related offenses committed within the building; . . . . -12- Minnesota Statute §617.80(2) defines "building" as a structure suitable for human shelter, a commereial structure that is maintained for business aetivities that involve human occupation, or any portion of such struetures. The City has offered no evidenee that there have been any convictions for acts of prostitution or prostitution- related activities within the building that houses the Belmont Club. Therefore, no adverse action can be supported on the basis oP any alleged public nuisance. B. City Has Failed In Its Burden Of Proof.--Even if this Tribunal should conelude that adverse aetion may be taken against a license or a licensee outside of the statutory - - -- definition of a publie nuisance, the City has failed in its - - burden of proof. The City has not satisfied its burden of establishing that the Belmont Club is the cause of prostitution or prostitution-related activities in the area. Indeed, the testimony is that the prostitution problem was not caused by - - the-Belmont Club but by such things as low housing standards, low income levels, lack of education, absentee landlords and urban development in the community surrounding the Belmont Club. - - - Melendez, Tr.pp. 60-61 . Accord Melendez, Tr.p. �48 at l. 3-6. (Q. "So is your opinion, then--that the Belmont Club was not the cause oP prostitution on Dale and Oniversity, is it?" A. "I would says that in all fairness and honesty, I would say no.") ; Eisenmenger, Tr.p. 117 at 21-25 and 118 at 1 ; Respondent' s Exhibit E at 19. -13- . �� - �� The City has not satisfied its burden of establishing that prostitution or prostitution-related activities have any connection with The Belmont Club. Indeed, the evidenee is to the contrary. Melendez: Q. "Does the prostitution, or do the prostitutes have a connection with the Belmont Club itself?" A. "That, I really eanft say that they do, sir.t� Tr.p. 42 at 11-1�4. Q. "Did you ever see_ them come out with customers?" A. "No, sir, I haven� t." Tr.p. �43 at 25 p. �44 at 1 . The City has failed to satisfy its burden of establishing any causal connection between the operation of the Belmont Club, including its parking lot, and the prostitution and prostitution- related activities that take place in the Frogtown area for the following reasons: 1 . Instead of working with MFL, Inc. and Mr. Fan _ _ to_ address a commun_ity_ problem, _the community organizations - - - - _ _ _ _ _ . _ _ have "targeted" the Belmont Club--not for any alleged violation - -_ _ _ _ _ ___ _ _ _ _ __ of the liquor laws or ordinances, but because nude daneing can be viewed from the licensed premises. Melendez, Tr.p.�2 at 16-21 ; p. �7 at 18-25 and p. �48 at 1-6; p. 58 at 16-25 and p. 59 at 1-16; Eisenmenger, p. 119 at 1�-25. Any adverse testimony by the witnesses from the community concerning any alleged conneetions between the Belmont Club and prostitution or prostitution-related activities lacks eredibility because they have "singled out" the -14- Belmont Club. Reliance thereon by this Tribunal would be arbitrary and capricious. Tamarac Inn, Inc. v. City of Lon Lake, 310 N.W.2d �7� (Minn. 1981 ) . In addition, neither Mr. Melendez nor Mr. Eisenmenger has been inside of The Belmont Club in years. 2. The evidenee clearly establishes that the members of the community moved into the area knowing that The Belmont Club sold liquor, that nude dancing could be viewed from the licensed premises, and that they were moving into an area . known for prostitution. Melendez, Tr.p. 36 at 15-18; Eisenmenger, Tr.p. 108 at 23-25, Tr.p. 115 at 13-25. 3. The evidence establishes that there are more prostitutes and prostitution-related activities, and arrests, - in the- publie streets and �idewalks than in the licens-ed - - -- premises or the parking lot. For example: Melendez, Tr.p. �0 at 11-21 , Tr.p. �9, Tr.p. 52 at 19-25 and 53 at 1-�4; Meyer, Tr.p. 78 at 15-25; Eisenmenger, Tr.p. 116 at 23-25 and 117 at 1-2, Tr.p. 120 at 1�4-25; Lutchen, Tr.p. 1�49 at 17-25, Tr.p. 150 at 1-8, Tr.p. 160 at 2�4-25 to 161 at 1 , Tr.p. 162-163 at 1-19, - . _ - - - - - - - - - - -- Tr.p. 168 at 13-2�. - -_ - - - - - _ __ _ �+. The Belmont Club is located in a high crime area. The patrol team area 88 (6-block area west of Dale) and in area 89 (6-block area east of Dale) , where The Belmont is located - are both high crime areas. Respondent' s Exhibit B; Lutchen, Tr.pp. 153-156. In 1986, seventy percent (70�) of all prostitution arrests in the City were made in the zone bounded by University, Charles, Victoria and Western Avenues. Lutchen, Tr.p. 156-157 at 1-�4; Respondent� s Exhibit E at p. 20-21 . -15- It is unclear to what extent clients of street prostitutes in this neighborhood are the same people as are the patrons of the adult entertainment businesses in the neighborhood. Apparently, the two activities are often separate, but occur in the same neighborhood due to its "sex for sale" reputation, . . . Respondent� s Exhibit E at p. 21 . 5. The parking lot is used by patrons of the Fliek and Faust . For example, Melendez, Tr.p. 56 at 22-2�; Eisenmenger, Tr.p. 122 at 12-15. � 6. _ The licensee has taken steps to remove prostitutes and pimps from the licensed premises. Baker, Tr.p. 213 at 11-25 and 21� at 1-3. Weinhandl, Tr.p. 22� at 9-17, Tr.p. 225 at 1-�, Tr.p. 226 at 10-13. 7. There has been a significant improvement in the number of "known prostitutes" passing through the parking lot and a greater awareness of the boundaries oP the parking lot since the security guard was hired. For example: Melendez, Tr.p. 4� at 10-16, p. 45 at 8-17; Eisenmenger, Tr.p. 112 at 21-25, Tr.p. 113 at 1-9, Tr.p. 122 at 1-6; Lutehen, Tr.p. 163_ .. at 20-23. The evidence, rather than establishing that the licensed premises caused or has a conneetion with prostitution or prostitution-related activities, is a vietim of the problem--�ust like other members of the community. The City has presented no evidence upon whieh it can rely to establish t�that the premises themselves [are] inherently unsuitable as the location of a tavern. . ." Wa da v_. City of -16- Minneapolis, 246 N.W.2d �55, �59 (Minn. 1976) . Indeed, the evidence is to the contrary. For example: 1 . Mr. Carehedi testified that the Belmont Club is proper within the zoning ordinanees for the business it� s in. Tr.p. 177 at 1. 8-10. 2. Mr. Melendez testified, in substanee, that if the Belmont Club did not present nude dancing to be viewed by its customers, the community would work with, as opposed to against, . the Belmont Club. Tr, at p. 58-59. Finally, the City of St. Paul has failed to satisfy its burden of proof that the efforts by law enforeement personnel is ineffective. The evidence is to the contrary. For example: - - Melendez; Tr. -at p. �9, 11-1�; Eisenmenger, Tr. p. 118 at 2-11 ; For all of the reasons stated herein the City has failed to satisfy its burden of establishing that the licensed premises and the parking lot constitute a nuisanee. THE CITY DID NOT SATISFY ITS BURDEN OF PROOF AS TO - - -- COUNTS 3 AND � Respondent hereby refers to pages 2 through 24 and 27 through 32 of Respondent' s Memorandum in Support of Respondent' s Pretrial Motions and incorporates them as if fully set forth herein. A. The City Has Failed To Sustain Its Burden Of Proof That A Minor Was Employed � The Licensee For Sexual Performanee And That The Licensee Permitted A Minor To Engage In A Sexual Performanee.--As diseussed at pages 4 and 22 of -17- Respondent' s Memorandum in Support of Respondent' s Pretrial Motions, the licensee did not employ Ms. Monn; Dancing Angels, Ine. employed Ms. Monn. Respondent' s Exhibit A. Because of its "tendaney to inhibit constitutionally protected expression, . . ." the elements of Minnesota Statute §617.2�6 must inelude seienter in order to survive a constitutional ehallenge under the First and Fourteenth Amendments to the Constitution of the United States and Article 1 §3 of the Constitution of the State of Minnesota. Smith v. California, 361 U.S. 1�7, 155 ( 1959) . Aecord, New York v. Ferber, �58 U.S. 7�7, 765 ( 1982) ("As with obseenity laws, criminal responsibility may not be imposed without - some element of seienter on the part of- the dePendant:" ) ; State v. Ferber, 390 U.S. 629, 643-�F4 ( 1968) . Thus, the City must satisfy its burden of establishing, beyond a reasonable doubt, that the licensee was in some manner aware ( 1 ) of the character and content of the performance and (2) the age of Ms. Monn. _ - - - - - - - - - - - - The- City has failed in this burden -as fo�l-0ws: - - - 1 . The City failed to present any evidenee- that _ _ either the licensee or Mr. Fan intended to hire Ms. Monn for the purpose of a "sexual performance" - or -to "permit a sexual performance." 2. The City failed to present any evidence that either Mr. Fan or any employee of MFL, Inc. ever actually saw Ms. Monn engage in any alleged "sexual performance" . _ -- -18- _ , � �� - ,�� 3. The City failed to present any evidence that Mr. Fan was even at The Belmont Club when Ms. Monn engaged in her alleged "sexual performanee." 4. The City failed to present any evidenee that any other dancer ever daneed in a manner so as to be outside of the realm of proteeted expression. . To the contrary, the evidence is conclusive that that was not the intention. For example: 1 . Respondent' s Exhibit A speeifically states at - p. 2 that the "[d]ancer represents that she has read and understands the ordinances governing exotie daneing[ ]" and � - - that "[she] agrees to abide by such ordinance and all laws." Aecord, Respondentts Exhibit A at � 7.a. 2. Ms. Monn did not dance in the manner described in Plaintiff� s Exhibit 5 at her audition. Osterman Tr.p. 260 at 1�4-18. 3. The daneers are verbally instrueted about - prohibited acts, the ordinanee is .read to them and diseussed at monthly meetings (Respondentts Exhibit C) and a sign is , posted in the dressing area contained in �l90 North Dale - (Respondent� s Exhibit D) . Osterman, Tr.p. 236 at 9-25 and PP. 237-239 at 1-5. 4. Ms. Monn had never daneed in the manner described in Plaintiff' s Exhibit 5 on any other occasion. Osterman, Tr.p. 260 at 1�-19- -19- 5. Mr. Fan was not present the night of Ms. Monn' s arrest. Osterman, Tr.p. 257 at 18-20. 6. Mr. Fan attended the meetings with the dancers where they went over the rules. Osterman, Tr.p. 2�7 at 7-12. B. Plaintiffts Exhibit 5 Is Inadmissible Or Should Be Given Very Little Weight.--Respondent hereby refers to pages 31 to 32 of the Respondent' s Memorandum in Support of Respondent� s Pretrial Motions and pages 1 to , supra, as if fully set forth herein. If this Tribunal concludes that Plaintiff� s Exhibit 5 is admissible despite Minnesota Statutes Chapter 36�, then the report should be held inadmissible under Rule 803(6) and (8) of the Minnesota Rules of Evidence and Rule 1400.7300 of - the Rules of the Office of the Aearing Examiner, or it should be afforded very little weight. Officer Rogers admitted (Tr.p. 13� at 20-25 to p. 135 at 1-2) that Plaintiff� s Exhibit 5 was not made contemporaneously with Ms. Monnts arrest outside of the licensed premises, but that it was made fourteen days after her arrest. The manner and cireumstances under which Officer Roger� s report was procurred indicates a laek of trustworthiness, as follows: 1 . Aecording to Officer Roger's testimony, his - first report did not describe the daneing. Tr.p. 1�1 at 20-23. As a police officer with over five years of experience, it is reasonable to infer that if Officer Rogers had observed a person dancing, that he knew was a minor, and the content of that -20- dancing consisted of an alle�ed "sexual performance," he would have ineluded it in his initial report. It was only after another officer had a conversation with the City Attorney, that the other officer advised him that they [the City Attorney] needed and wanted a supplemental report. This strongly suggests that the purpose of the second report was not to "reeord matters observed pursuant to duty imposed by law" but to form a "factual" basis for other purposes. Thus, this Tribunal should conelude that the subsequent report, Plaintiff� s Exhibit 5, "lacks trustworthiness" and is not "the type of evidenee on which reasonable, prudent persons are accustomed to rely in the conduet of their serious affairs." - -- - 2. Officer Rogers- testified that he was �40 -to 50 -- feet away from the danee studio and was on the opposite side of the bar. Tr.p. 130 at 12-19, p. 135 at 15-18. Even if his view was unobstrueted by bartenders or patrons sitting at the bar, sitting at the rail or moving between him and the glass panels, it is unlikely that anyone could see so far with such clarity. - The City Has Failed To Sustain Its Burden OP-- C. _ _ Proving That The Licensee Intended To Hire A Minor.--The testimony is clear that: 1 . Tarah Monn lied about her age to get the job and - never told anyone at the Belmont her real age. Monn, Tr.p. 90 at 16-19, Tr.p. 93 at 8, Tr.p, 100 at 17-23. 2. Not only did Ms. Monn appear to be over 18 at the hearing, she testified, that when she auditioned, she wore a lot of eye make-up and her hair was different because it stood up more. Monn, Tr.p. 100 at 6-15. -21- . - � � �� 3. This Tribunal was able to see, Ms. Osterman testiPied, that Ms. Monn is well developed. Ms. Osterman believed, based upon her 7-8 years oP experienee in the bar � business, Ms. Monn looked 18-19 years old. Ms. Monn has large breasts and is "well proportioned, fully developed. " Osterman, Tr.p. 257 at 1-17. �4. Naney Osterman asked for identification, was given identification in the form of a birth eertificate and showed it to David Fan. Osterman, Tr.p. 24� at 19-25 and p. 245 at 1 . Therefore, the City has failed to sustain its burden of proving seienter. THE CITY HAS FAILED_ IN ITS _ _ BURDEN OF ESTABLISHED LACK - - - - - -- - -- - - OF- MORAL CHARACTER - - For all of the reasons set forth in Respondent' s memorandum in Support of Respondent� s Pretrial Motions, at pages 16-21 , which are hereby ineorporated by referenee, adverse aetion on the basis of laek of moral eharacter is unconstitutional. Furthermore, Minnesota Statute §36u.07 - - - _ _ _ __ _ prohibits �he admi.ssion _of police reports for the purpose oP adverse action on a license on the basis of lack of good moral eharaeter, unless the licensee is convieted of a crime. Supra - - - - - _ at -6. - - _ _ Mr. Melendez testified that Mr. Fan has always been a gentleman, has been willing to work with the community groups (Tr.p. �8 at 7-13) , but the community is unwilling to work with him because oP the nude dancing off from the licensed premises — (Tr.p. 58 at 9-25, p. 59 at 1-16) . Kathleen Zachary' s character testimony is undisputed (Tr.p. 2b1 at 10 through 268) . - -22- Because there are no convietions and because the City has not proved any willful violations or other "immoral" eonduct by or attributable to the licensee, no adverse action my be imposed under Minn. Stat. §340A.402(5) ; Sections 310 or �09.06(3) of the St. Paul Legislative Code. THERE IS NO EVIDENCE THAT EITHER MFL, INC. OR MR. FAN HAS EVER BEEN CONVICTED OF ANYTHING OR HAS EVER HAD A LIQUOR LICENSE REVOKED � There is no evidence that either MFL, Inc. or Mr. Fan has ever "been convieted of a willful violation oP a federal or state or local ordinance governing the manufacture, sale, distribution or possession for sale or distribution, of _ _. _ _ intoxicating or nonintoxicating malt liquors"Z� or that either � MFL, Ine. or Mr. Fan has had a liquor license revoked.3� Therefore, the City cannot rely upon those seetions of Minnesota Statutes §3�OA.�02 or Section �409.06(3) of the St. Paul Legislative Code to sustain any adverse aetion against the lieense or the licensee in the form of failure to renew MFL, Inc. ' s on-sale liquor. - - - THE CITY AAS NOT SATISFIED -- - ANY OF THE GROUNDS SET FORTH IN SECTION 310.06 OF THE CODE - - - The City has failed to satisPy its burden under Section 310.Ofi(6) , (7) and (9) . Because the City has failed in its burden to 2/ Minn. Stat. §3�OA.�402(3) . Aecord, Section �409.06(3) of the St. Paul Leg. Code. 3/ Minn. Stat. §340A.�02(�4) ; Seetion �09.06(3) of the St. Paul Leg. Code. -23- prove that the licensee has violated any provisions of any statute or ordinanee or that the licensee' s activities in the licensed activity have created (or caused) any danger to the public health, safety or welfare, or that the licensee laeks moral eharaeter, no adverse aetion may be taken under Section 310.06. THE LICENSEE HAS BEEN COOPERATIVE . A. Count 2.--The evidence establishes, beyond a reasonable doubt, that the licensee did not condone the aetions of a former employee with regard to Officer Meyer. For example: - - 1 . The licensee apologized "profusely" upon being informed oP the incident (Meyer, Tr. p. 75 at 17-19; Weinhandl , Tr.p. 226 at 23-25, p. 227 at 1 ; Fan, Tr.p. 273 at 14-17) . 2. The licensee stated that it would cooperate with anything the officer wanted done (Meyer, Tr.p. 76 at 2-4) . 3• The former employee was never charged (Meyer, Tr.p. 76 at 12-13) . - - - - - 4. The lieensee told the former employee that it should never happen again (Weinhandl, Tr.p. 227 at 2-7) . 5. Officer Meyer aecepted the apology (Weinhandl, Tr.p. 227 at 8-10; Fan, Tr.p. 273 at 17-18) . 4 6. Lieutenant Bailey, at that time the head of the Vice Squad, guaranteed, in the presence of an Assistant City Attorney, that the incident would not be brought up at the \ license hearing. -2 4- B. The Licensee Has Been Cooperative With The Police And The City.--Both Officer Meyer and Officer Rogers have testified that, but for the incident perpetrated by a former employee, the licensee has always been cooperative (Meyer, Tr.p. 78 at 7-9; Rogers, Tr.p. 138 at 22-25 and 139 at 1-16) . Mr. Carchedi has testified that he has had no problems, in his capacity as license inspeetor, with Mr. Fan and no complaints about how Mr. Fan operates his business in relation to the sale of intoxicating liquor. Tr.p. 173 at 18-25. Furthermore, the licensee participated in a meeting requested by the City concerning alleged prostitution in the parking lot and surrounding area (Carehedi Tr.p. 17� at 10-12, p. 286 at 12) . Despite the licensee� s requests for various forms of assistance from Lieutenant Bailey, none of that assistanee was ever provided (See e.�. , Carehedi , Tr.p. 17�-175 at 1-19; Fan, Tr.p. 274 at 17-25, p. 275 at 1-13) . C. When The Licensee Was Informed Of A�nr Allegations - Of A Problem; Steps Were Taken To Correct The Alleged Problem.-- Throughout the testimony, it is clear that when the licensee was informed of an alleged complaint, it took measures to correet anp alleged problem. For example, all oP the testimony indieates that the parking lot attendant is doing a marvelous job. When known pimps were identified to the licensee, they were asked to leave the premises and have not been baek (Baker, Tr.p. 213 at 20-25, p. 21� at 1-3) . _ __ _ CONCLUSION - The evidence presented to this Tribunal has proved that MFL, Inc. d/b/a The Belmont Club is located in one of the -25- .► highest erime areas of the City oP St. Paul; the crime rate in the licensed premises and the parking lot is substantially lower than the surrounding community; and that the location_ of the Belmont Club does not violate any zoning ordinanee. The City failed to sustain its burden of establishing that MFL, Inc. d/b/a The Belmont Club or Mr. Fan caused or was connneeted with prostitution in the Frogtown Community; that MFL, Inc. or Mr. Fan caused any type of nuisanee in the area; _ that either MFL, Ine. or Mr. Fan have ever been convicted of a erime or ean be held vicariously liable for actions by an employee when the employee acts outside of the scope of his employment and is not in furtheranee of the licensee' s business. - -The evidence has proved that the Belmont Club -has been - - "targeted" for adverse aetion by the community because nude dancing can be viewed from the licensed premises and that the community would not ob�ect to MFL, Inc. or Mr. Fan operating a bar and restaurant at that location if the nude dancing could not be viewed from the premises. The evidenee has proved that the nude dancing takes place off from the licensed - - premises; that the appropriate license are in force; and that _ the City has been of that opinion for 10 or 12 years. The evidence has proved that there are no violations of any statutes or ordinances relating to the sale or possession of intoxication liquor and that the licensee has been cooperative with the police and the City. The evidenee has proved that Mr. Fan is a person of good moral eharaeter who has not knowingly or reeklessly -26- . , ,�k�- i�� engaged in any misconduet; that he establishes and enforces rules and regulations in the conduct of his business; and has made every effort to respond and has been suceessful in responding to every alleged eomplaint made to him by the City or the community. For the foregoing reasons, and the reasons set forth in Respondent�s Memorandum in Support of Pretrial Motions, Respondent respeetfully requests that this Tribunal make Findings of Fact and Conelusions of Law favorable to the Respondent and that this Tribunal recommend that no adverse aetion be taken against the license or the licensee by reason_ of this hearing. --- Dated this 17th day of June, �ggg. Respeetfully submitted, COCHRANE & BRESNAHAN, P.A. - - - - - - _ _ _ _ �y � ames . Bresnaha Attorney I.D. �11307 Mary F. Seymour Attorney I.D. �99�+54 _ 2�1 East Fourth Street - St. Paul, MN 55101 (612) 298-1950 . Attorneyst for Respondent -27- ,�, �: I C � � � —�� e ,. : � ��,� � • r � " �f,;,° WHITE - C�TV CLERK PINK - FINANCE GITY OF SAINT PAUL Council t//� /,� CANARV - pEPARTMENT File NO. �� ` �` - BLUE - MAVOR ' Co cil Resolution � Presented By Referre Committee: Date Out of Committee By Date RESOLVED; that the On Sale Intoxicating r � �, Sunday On Sale, Restaura licenses (as well as the F• ent license to the extent ' t is applicable or effF � premises licensed for sale of intoxicating liqu� Inc. and Clayton Club, Inc d/b/a the Belmor � � mises at 615 University Av nue in Saint F� �,�'`n � , said revocation to be e fective at 12 : (. � ' lowing publication of this solution. ��C This Resolution an the action ta. based on the entire record of the p oceedings hei �uding the pro- ceedings before the Admini trative Law on May 24 and 25, 1988 , the transcript of s ch proceedir.,� , the documents and exhibits introduced therein, he arguments of counsel for the parties on August 11 , 1988 , a their written exceptions and arguments, and upon the deliberati ns and findings of the Council in open session. In arriving at its ecision, the Council adopted in whole or in part the findings of fact of the Administrative Law Judge, together with amendmen�s th eto, as vaell as certain conclusions, all of which are attached h eto as Council Findings and Conclusions. Other findings or conclus ns of Lhe Administra- tive Law Judge are not adopted. FURTHER RESOLVED, that a copy of this Resol tion, as adopted, shall be sent by first class mail to the Ad 'nistrative Law Judge and to counsel for the licenseholder, pursua t to Minnesota Statutes 1976 , Section 14.62 , Subd. 1 . COUNCIL MEMBERS Yeas Nays Requested by Department of: Dimond �ng [n Favor Goswitz Rettman Scheibel A ga i n s t BY Sonnen Wilson Form Approved by City Attorney Adopted by Council: Date Certified Passed by Council Secretary BY � /�` ��'��C._ 1�f� '�' �� By A►pproved by Mavor: Date _ Approved by Mayor for Submission to Council By BY � � , � � � �` ,,2-_ �� COUNCIL FINDINGS AND CONCLUSIONS 1. The Notice of Hearing dated May 3, 1988 as proper in this matter and all procedural requirements of 1 w or rule have been fulfilled by the City. 2. An on=sale liquor license is held by L, Inc. d/b/a the Belmont Club. MFL, Inc. is owned by an ind ' idual named David Fan. Until March 15, 1988, David Fan also wned Dancing Angels, Inc. (City Ex. 7) . Nancy Osterman had be manager of Dancing Angels, Inc., which corporation supplied ancers to a variety of bars in Minnesota and Wisconsin. Ms. Os erman received $250.0�1 � $3Afd.PlP! per week salary from the Bel ont and another bar to manage the dancers. On March 15, Nanc Osterman, the manager of Dancing Angels, paid David Fan $20.0 and thereby purchased the stock of Dancing Angels , alonq with $ 15.gP1 = $ 18.P10 in liabilities. Now she receives app ximately $14l0.00 per week of the $1, 842.00 per week transferr d to Dancing Angels from the Belmont. The rest of the $1,842. 0 is used to pay dancers. 3. In late November or arly December , 1987, a thirteen year old having initials T.D . applied for em ployment at the Belmont Club. The job requi ed her to dance in a qlass cubicle adjacent to the area where rinks are served in the Belm ont Bar. The cubicle was twenty o twenty�five feet by fifteen feet. T.D.M. was born on Januar 17, 1974. She was thirteen years old when she was hired. S never filled out an application for em ploym ent, and lied bout her age to Dancing Angels m anager Nancy Osterman when sked. She then perform ed an audition. David Fan was presen at the audition. She was hired by David Fan. T.D.M. did not sign a contract with the so=called Dancing Angels, Inc. unti seven weeks after her audition. She was clearly an employe under the direction and control of David Fan. T.D.M. did not fur ish Nancy Osterman or David Fan with a copy of her birth certi icate or any other proof of age when she was hired , or at a y tim e thereafter. A reasonable person would have inquired urther about T.D.M.'s age, given all of the facts and circumsta ces at the time she was hired. T.D.M.'s testimony that she was not required to prove her age is credible; she had no motive to testify falsely in the license hearing , and no interest in the outcome of the license proceedings. Testimony of witnesses for the Belmont contradicted each other on matters relating to the control and management of the dancers, and all had an interest in the outcome of the proceedings. 1 � � � ��—�s�.�� 4. "Dancing Angels" are instructed that they c 't touch themselves in their genital areas. The St. Paul Legis tive Code which relates to this subject is revie wed with t e dancers periodically, and there is a sign posted in the danc , 's dressing room which states: "You cannot touch, caress or- fondle your breast, buttocks, anus or genitals. If you can'.� follow this rule you will lose your job! ... Att. all dan�ers, you m ust carry your val id Minn. I.D. on you at all tim.�s or you don't dance. So don' t lose it." (Respondent's Ex�� D) . There was evidence showing another incident concerning �,� sixteen year old dancer , not alleged in the Notice of Heari g , but raised by counsel for Respondent in his crosszexaminati n of Officer Meyer. (Tr. 78 = 79). This dancer was about to per rm on the stage and had no identi f ication or proof of age. 5. T.D.M. looks older than her age, and could be mistaken for an eighteen.=year'=old. When she ditioned for Dancing Angels, she was wearing m ore m akeup th n she did in court, and her hair was shorter , and stood up more. Nonetheless , a reasonable person would not have accept d her assertion of age at face value, but woulc3 have inquired fur��ther as to her age. � / 6. As a "Dancinq Angel" , T.D,iM. was paid approximately $10.00 per hour plus tips, which wer..� stuck through slots in the glass dancing cage by Belmont pa�'rons. She was paid with a Dancing Angels, Inc. check, signe by David Fan. (City Ex. 3) . She worked six days per week. Dav d Fan and a bartender, Sherry, were present in the bar during T. .M.'s performances from time to time. David Fan would tell T.D . to leave the bar if she came in for pop or cigarettes , becaus she was under 21 years of age. � 7. On February 2, 1988 , Officer Lawrence Rogers entered -�he Belmont Club, having re eived information that T.D.M., a runaway from foster plac ment , might be in the Club . Officer Rogers did not discu�s the matter with David Fan or ask for Fan's cooperation concer�ing T.D.M. David Ean ws present in the Club on February 2, 19$�'8, and Officer Rogers characterized the Club's general attit de to ward the police as "more than cooperative." At approxim tely 10:�0 p.m, on February 2, Officer Rogers observed T.D.M. earing a halter or bikini top with a matching mini=skirt. hile dancing, T.D.M, exposed her pubic areas and buttocks by ifting her skirt and by squatting while facing males seated t stageside. While squatting, T.D.M. performed several pelvic thrusts and spread her legs in such a m anner as to expose her inner vaginal area. During a second song , T.D.M. returned to the stage wearing only the top of her costume and continued to dance in a similar manner, including the fondling and touching of her breasts and genital area. During a third song, T.D.M. returned to stage wearing only high�-heeled shoes. She then continued to dance as previously described and 2 � ' �!C'��`�S�-�� also lay on her back with her feet on the stage, while bending her knees at a 90 degree angle. In this position, T. .M. bridged her back, spread her legs, and performed numerous p vic thrusts toward the patrons. This maneuver was accomp nied by the touching and fondling of the breasts and genital a,fea. / 8. The City Attorney asked Officer Roge s to make out a suppplementary police report, describing T.D. .' s activities in more detail , which report was completed on Feb uary 22, 1988 . 9. The Dancing Angels policy is tha a fem ale has to be eighteen years of age to dance. If dance s are underage, they are not permitted in the bar. Dancers cu rently are required to have a valid Minnesota ID or driver' s icense to verify their ages . This represents a tightenin up of identification requirements; at the time T.D.M. wa hired, other kinds of identification were accepted . T e Unbank ID was never acceptable. 1P1. Known prostitutes loi er in the University and Sherburne area. There are 3 T 15 prostitutes working the Sherburne area per night, dependi on where the police cars are. They can be observed on the sidew lk to the front, back and side of the Belm ont Club. They can be observed inside the Belm ont parking lot , talking to peo le leaving the Belmont. One neighborhood activist, Manual elendez, has observed prostitutes approaching cars in the lot ive times in the last two years. Neighborhood resident Bruce �isenm enger has seen prostitutes on Sherburne at the entrance to .�the lot on numerous occasions during 1987-88; he has seen prosti;�tutes within the lot on occasion and has observed some enter th� Club. Mr. Ei semnenger observed such activities daily or eve�'ry other day until the last month. Officer Charles Lutschen as contact with prostitute problems in and about the Belmont about two tim es per night. Of.ficer Lutschen believes he ha made one arrest in the Belmont parking lot. There are more ostitutes on the sidewalk than are ever seen in the lot. Som of the prostitutes go in the parking lot to evade the police. The Belm ont parking lot also is used by patrons of the Faust and F1 ick Theaters, although management has attempted to disco, rage this. It is quite common to observe discarded condoms }�n the parking lot and adjacent streets. Pimps and prostitutes h ve been observed entering the Belm ont. In the winter , these p ople may be looking for someplace warm. The record contains ittle evidence regarding the activities of these individuals i�side the bar. Officer Dennis Meyer saw a prostitute in t, e bar only once, and he didn't inform management. Officer Charle� Lutschen has observed pimps sitting in the bar, where prostitutes com e to deliver money to the pim ps. He has observed prostitutes and pimps use the bar for drinking and picking up custom ers. He has never made an arrest inside the bar 3 � ` � � � . � ��z� for solicitation; but he has made 2A = 25 arrests outside the bar for solicitation inside, and others, as follo ws : one (1) in Lendway's lot, two (2) in Skipper' s lot, twenty to th ' rty (2P! '= 30) on the corner of Sherburne and Dale , twen (20) on University and Dale, as well as numerous arrests St. Albans and Sherburne and Kent and Sherburne. 11. The Belm ont Club is located in a igh crim e/high prostitution area. While the Belmont is ot the sole and exclusive source of prostitution in the ar a , it is used by prostitutes in sufficient numbers for meet ' ng with johns, for shelter from the elem ents, for avoiding lice officers, for meeting with pim ps, and in conjunction with the parking lot using the licensed activity as a base of operat ' ons. Prostitutes use houses on Sherburne. 12. The Belmont Club wasn' t "t rgeted" for protest by community action groups until rec tly. After the T.D.M. incident, David Fan met with the vice quad to discuss procedures that were going to be followed. gt. Schaub expressed his intention to give the Belmont m re photographs of known prostitutes and pim ps, but wasn' going to do that until a procedure was settled upon. Cit officials met with Belmont representatives on April 1, 1988, o try to reach an agreement to eliminate the prostitution in the Belm ont parking lot. David Fan said he would hire a security gu d and do everything possible to eliminate prostitution in the ot. He requested photographs of known prostitutes and pimps. H suggested that seminars be given to his employees regardinq ho to identify prostitutes or pimps. He was cooperative regarding iminating the problem, looking for guidance from the police d partm ent. During the last month, there has been a "tremendou improvement" in the discouragement of prostitution around th Belmont; Chris , the security guard , currently is doing an "ex ellent job" of "shooing qirls off the lot." During the last co le months, Belm ont employees have been more vigilant about stop ing prostitutes at the entrance to the parking lot. The Belmo t parking lot is well-lit and the trees in the area have be n trimmed. The Belmont efforts at im provem ent are clear related to and result from the initiation of enforcement action against the licenses of the Belmont Club. 13. The Belmo t management has not always cooperated with the police as they come through the bar. The bar management allows the polic to com e inside and make frequent checks. Bouncers and bart nders have infrequently pointed out prostitutes and pim ps to of icers and asked officers questions regarding whether a woma is a working prostitute , but more often have failed to reca'gnize that the problem exists and have not responded to Officer Lutchen's requests to view photos of prostitutes working the Belm ont Club and parking lot. The bar 4 r -� , � (� �-�i�a� manager once has advised the police, "I think e's a pimp; I think she's working ." Oficer Lutchen has a vised the bar management that they do have the right o evict known prostitutes , especially if they are working t e bar , but he has never been asked to evict a prostitute. In co trast, he has been called approximately twenty times to evic prostitutes from Lendway' s Bar near the Belmont and Lendw y' s Bar has sought vigorously to deal with the problem. he Liquor License Inspector has received com plaints about pr stitution in relation to the Belmont Club, but has not receiv d similar com plaints about Lendway' s. CONCLUBIONS 14. The 1 icensee employed m inor .D.M., who 1 ied about her age in order to obtain employment. he City has sustained its burden of proving that T.D.M. was e ployed for the purpose of engaging in a sexual perform ance, an has sustained its burden of proving that the licensee permitted minor to engage in a sexual performance. 15. The Council concludes t at the findings and evidence in the record relating to prostitu ion are sufficient grounds for disciplinary action relating to he licenses of the Belm ont Club, in that they reflect the exist nce of a nuisance for which the said Belm ont Club is accountab e, and constitute a serious danger to the public health, safety and welfare. Such findings are grounds for adverse action u der Section 409.08 (6) of the Saint Paul Legislative Code, pro 'biting licensees from permittinq licensed premises to be used as a resort for prostitutes; Section 31A.06 (7) of the Code allowi g revocation when the actions of the licensee in the licensed a ivity create danger to public health, safety or welfare; and un er Section 231.01 of the Code, as well as Minnesota Statutes 1986 , Section 6P19. 74 , relating to nuisances. 16. The Council c ncludes that the findings and evidence in the record relating to iring a thirteen-year old girl to engage in sexual performance are sufficient grounds for disciplinary action relating to th licenses of the Belmont Club, in that they sho w that the licens has indicated by such misconduct his lack of the requisite fi ness and good moral character to engage in the licensed activ ' ty as provided by Section 310.�16 (9) of the Code. Such finding also show a violation of Minnesota Statutes 1986, Section 617. 46, and of necessity constitutes grounds for adverse action u er Section 310.06 (6) of the Code , concerning violations of st tutes which reasonably relate to the licensed activity. 5 ��'-i,�°� �; ��cEivE� COCHRANE & BRESNAHAN, P.A. �EP 9�� j9�8 ATTORNEYS AT LAW CITY CLER� 24 EAST 4th STREET SAINT PAUL, MINNESOTA 55101-1099 JOHN A.COCHRANE JAMES R. BRESNAHAN TE�EPHONE STEWART C. LOPER 612/298-1950 MARY F.SEYMOUR CABLE ADDRESS:COBRA RONALD D.ALLEY' BRIAN N.TODER" September �2� �9�0 'A/so admitted rn Texas "Also admitted in Coloratlo � HAND DELIVERED Office of the City Clerk Room 386, City Hall 15 W. Kellogg Blvd. St. Paul , MN 55102 Attention: Albert Olson Re: MFL, Ine. et al. v. City of Saint Paul et al . Dear Mr. Olson: Enclosed herewith for filing please find a copy of Petition for Writ of Certiorari , Petitioners' Statement of the Case, Writ of Certiorari , Motion for Stay on an Expedited Basis and Affidavit of Mary F. Seymour and original Cost Bond. Please also find a check in the amount of Ten Dollars ($10.00) for filing fees and a copy of the Fifty Dollar ($50.00) eheek as and for filing fees at the Minnesota Court of Appeals. Yours truly, COCHRANE & BRESNAHAN, P.A. By' � � Mary F. Seymour MFS/plc Enelosures RECEIVED SEP�,2 t9aa COCHRANE&BRESNAHAN,P.A. ATTORNEYS AT lAW CITY CLERK 24 EAST 4th STREET SAINT PAUL,MINNESOTA 55101-1099 JOHN A.COCHRANE JAMES R.BRESNAHAN TELEPHONE STEWART C.IOPER 612/298-1950 MARVF.SEVMOUR CABLEADORESS:COBRA RONALD D.ALLEY' BRIANN.TODER" Septemb8r• �2� �9$$ '�uo admmeo m ie,u "A/sOWmrttetl�n Co�o�aao HAND DELIVERED Office of the City Clerk Room 386, City Hall 15 W. Kellogg Blvd. St. Paul, MN 55102 Attention: Albert Olson Re: MFL, Ine. et al. v. City of Saint Paul et al. Dear Mr. Olson: Enclosed herewith for filing please Pind a copy of Petition for Writ of Certiorari, Petitioners� Statement of the Case, Writ of Certiorari, Motion for Stay on an Expedited Basis and AfPidavit of Mary F. Seymour and original Cost Bond. Please also Pind a cheek in the amount of Ten Dollars ($10.00) Por filing Pees and a copy oP the FiPty Dollar ($50.00) eheck as and for filing fees at the Minnesota Court of Appeals. Yours truly, COCHRANE � BRESNAHAN, P.A. By s /�� Mary F. Seymour MFS/plc Enelosures � FIRBT BANK MINNEAPOLIB 8 4 3 8 COCHRANE&BRESNAHAN, P.A. FIRST BANK PLACE i ATTORNEYS AT LAW MINNEAPOUS,MN 66180 ' j 24 EAST 4TH STREET PH.612-298-7950 17-2-910 i 8T.PAUL,MN 66101 � � iPAY Ten and NO/100----^--------^-----^--^--------__"----------------------------- To nie onre a�nouorc �+� 9/i2/as 10.00 City Clerk , � C 1 t y O f S t P a II 1 � . . . � � . � NOT VAIID AFTER BO DAYS u'0084 38ii' �:09 i0000 2 2�: 60 2 3 30 3 76i�• � � . . STATE OF MINNESOTA COURT OF APPEALS CITY OF ST. PAUL RECEIVED M�L, Inc. , a Minnesota corporation, DBA: The SEP 1 21988 Belmont Club, and David S. F. Fan, Petitioners -vs- CITY CLEt�K City of St. Paul, a Minnesota Municipal corporation, and The City Council consisting of COST BOND James Scheibel, President, Kiki Sonnen, Bob Long, FOR Tom Dimond, Roger Goswitz, Bill Wilson, and CERTIORARI Janice Rettman, Respondents HIdOW ALL BY THESE PRESENTS, That we, M�'L, Inc. , et al by Mary F. Seymour, their Attorney, as principal (s) and EMPIRE FIRE & MARINE INSURANCE COMPANY of Omaha, Nebraska, as surety and held and firmly bound unto the Court of Appeals in the sum of ($500. 00) Five Hundred and No/100 Dollars for which payment well and truly to be made we jointly and severally bind ourselves and each of our heirs and legal representatives, firmly by these presents. That the undersigned will at all times indemnify the Surety and save it harmless from and against any and all claims, demands, judgments, liabilities, loss, damage, or expense of every kind and nature, including court costs and attorney fees, which it shall sustain or incur in consequence of it having executed said bond. THE CONDITION OF THIS OBLIGATION IS SUCH, That if the above named principal (s) shall pay all costs and disbursements that may be adjudged against them in said action, this obligation shall become void; otherwise it shall be and remain in full force and effect. IN WITNESS WHEREOF, We have hereunto set our hands and seals this 12th day of September, 1988. Signed, Sealed and Delivered in Presence of: M°�L, Inc. , et al By CQC �N� & BRESN, , P�A, By: Ma y F Seymour their Attorney EMPIRE FIRE & MARINE INSURANCE CO. � . . ry K. nett, Attorney Fact STATE OF MINNESOTA COUNTY OF RAMSEY BE IT KNOWN, That on this 12th day of September, 1988, before me personally appeared Mary F. Seymour to me known to be the same person described in and who executed the foregoing bond, and did acknowledge the same to be his/her own free act and deed. Notary Public STATE OF MINNESOTA COUNTY OF HENNEPIN On this 12th day of September, 1988, before me, a notary public in and for said County, personally appeared Mary K. Annett to me personally known and being by me duly sworn, did say that he/she is the Attorney in Fact of the EMPIRE FIRE & MARINE INSURANCE COMPANY, a corporation of Omaha, Nebraska, created, organized and existing under and by virtue of the laws of the State of Nebraska, that the said instrument was executed on behalf of the said corporation by authority of its Board of Directors and that the said Mary K. Annett acknowledges said instrument to be the free act and deed of said corporation and that he/she has authority to sign said instrument without affixing the corporate seal of said corporation. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal at Minneapolis, Minnesota, the day and year last above written. No ry Publ ,,�y.,(,r *^M:_ ;�i'�ti.., r'nIR��J.j� '�',��NOTARY PUdIiC—µ1NNES�TA g,�A Y HENNE E�� 9,19�2 My C�� r ,, ,,�v,�,nrv.r,^n�^�rr�+hnM^^^' � ' ' Empire Fire and��Marine Insurance Company OMAHA. NEBRASKA POWER DF ATTORIYEY No. B „�'.,.��i3 Know All Men by These Presents: That thia Power of Attorney i� not valid o� in effect unleN att�ched to the boed which it autho�iza executed, but may be de- tached by the appro�ing officer if deiired. That. EMPIRE FIRE AND MARIIYE INSURANCE COMPAM'. � corpor�tion duly or`ani:ed under the laws of the State of Nebra�k�, aed I�avinr it� princiMl offiu ie the Citr of O�sialu. Countr of Dou�la�, St�te of Nebr��ka, doe� hereby make, coesti- wte and appoiot Patrick J. Thomas, Richard H. Davies, Shirley Elavsky and Mary K. Annett i�� tru� and Irw(ul A�torne.y(s)-io-l�ct, to n�ake, e:ecute, �i�n, seal,�nd deliver for �nd on it� behalf a��oretr and a� it� act aad detd any aod sll bonds and undertaking� oF suretyship except Ihe follawin�: NOT VALID FOR I. Bonds Guarantceinc Pcr(ormance or Payment of Contratlt 6. Lendors' or Les�or�� Complction Boods 2. Bank Dcpo�itory Bonda 1. Lea�e Bond� 3. 111or1gage D�(icieocy or Cuarantee Bondi 8. Financial lostitution Bond• 4. Not� Guarant�e Bond� 9. Warehouieman'� Bondi 5. Bonds Cuaranteeing Installmeot Paper 10. Qualifying Bond� of In�urance Companies NOT EXCEEDING tN AMOUNT Three Hundred 'rhousand and 00/100_.-..-..-,_-._-.,.-..,....-..-..-...-..-..— — — —..-..-...-.Dollan (E 3Q�,000.00_...) and to bind Eh1PIRF F1RE AND MAR1fJE 1NSURANCE COMPANY thereby �� fully and to �he same eatent s� if �uch bond� and undertakinas and oth�r k•ritings ohligatory in the nature thereof were �iQned by an Executi�e Of(icer of EI�1PIRE FlRE AND h1ARIhF INSURANC� and seal�d and attest�d to by one other of �uch office�a, and hereby ratifiei and confirm� all that its said A�torney(s)•in-Fact may do in pursuance hereof. This pow•er of attorney is granted under and by authority of Article II(, Section 3.1 of the By-La�+n of the ElV1PIRE F1RE AND h1ARINE INSURANCE COAIPANY and by Resolution of the Bosrd oE Directon duly adopted a• (ollow�: "All bonds, policits, under�akinRs or other obligations of the corporation shall be executed in the corporate name of the Com�any by lhe Chairman of th� Board, P�esident, Secretary, any A�siatant Secretary, Treasurer, or any Vice-Preeident, or br• such other of(icers as �he Board of Directors may authorize. The Chairman of the Board, Preeident, sny Vice-President. Secr�tary, any Assistant Secretary, or the Treasurer mar appoint Attorney� in Fact or Agents who shall have authority to issue bonds, ��olicies, or und�rtakings in the name of the Company. The corporste teal i� not neca�ary for the validity oF any bond�, policie�, undertakings or other obligations of the corporation.�' lt is certi(ied that the above is a true and exact copy. In Witness Wher�o(, the EMPIRE FIRE AND MAR(NE lNSURANCE COMPAM' ha� caused these present� to be •igned by i�s President, and it� corporatt seal to be hereto affized, duly atte�t�d by its Secrelary t}�i� 22nd day of September . �q 87 EMPIRE F1RE AND MARINE 1NSURANCE COMPANY Anc�t: � �� / L'�Q�tii��"T Secrctary ✓ '� . PRES�DENT SiATL' Oi �d�ii:'.ASI'�A� ) ss. COUNTY OF DOUGLAS) On this L.�h�l day of ' , A.D. 19 �, before me personally came Frank Kratky, to me known, who being by m duly sworn, did depose and say: that he resides in the County of Douglas, State of Nebraska; that he is the Secretary of the EMPIRE FIRE AND MARINE INSURANCE COMPANY, the corporation described in and which executed the above instrument; that he knows the seal of said corporatic�n; that the seal affixed to the said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like or er. . EM 40 10 (06-88) �� ' �N�� Notary Public �QNMi.Eq�FIh.12,1�1 . -;. RECEII�ED , . STATE OF MINNESOTA SEP �. 21988 IN COURT OF APPEALS CITY G�.�RK � - ------------------------------------ ) MFL, Inc. , a Minnesota Corporation, ) PETITION FOR WRIT d/b/a The Belmont Club, and ) OF CERTIORARI David S.F. Fan, ) ) COURT OF APPEALS Petitioners, ) NUMBER: C Sl- 8'� " �90�-� ) vs. ) ) OFFICE OF ADMINISTRATIVE City of Saint Paul , a Minnesota ) HEARINGS NUMBER: municipal corporation, and the ) City-88-021-CG City Council, consisting of James ) 53-2�01-2u27-G Scheibel , President, Kiki Sonnen, ) Bob Long, Tom Dimond, Roger Goswitz, ) DATE OF MAILING Bill Wilson and Janiee Rettman, ) NOTICE OF DECISION: ) September 8, 1988 Respondents. ) ) ------------------------------------ - T0: THE -COURT OF APPEALS -OF THE STATE OF- MINNESOTA - � The above-named petitioners hereby petition the Court of Appeals for a Writ of Certiorari to review a resolution of the City Council of St. Paul to revoke petitoners' on-sale intoxicating liquor, Sunday on-sale, and restaurant licenses (as well as the entertainment license to the extent it is applicable or effective i.n the premises licensed for sale of intax�cating - liquor) , commencing at 12:01 A.M. on the day following publication (on information and belief, the resolution is to be published on September 17, 19$8) . - - This resolution violates petitioners' eonstitutional rights to freedom of expression, due process and equal protection. The resolution was made in excess of the City Council' s statutory authority and jurisdiction. The resolution was not made in conformity with the provisions of Minnesota Statutes §§1�4.60, . , � . ��-i�� 14. 62, 36�4.01-. 10, 609.7u or 617.246 and it was not made in conformity with the provisions of Sections 231 .01 , 310. 05, � 310.06(b) (6) , 310.06(b) (7) , 310.06(b) (9) or 409.08( 6) of the Saint Paul Legislative Code. The resolution is unwarranted by the evidence. The resolution is arbitrary and capricious. A copy of the resolution, the Findings of Fact , Conclusions and Recommendation by the Administrative Law Judge and petitioners� statement of the case are attached hereto. DATED: September 12, 19a8 COCHRANE & BRESNAHAN, P.A. gy . JA ES . BRESNAHAN - - Atto ney I.D. ��11307 - - - - MARY F. SEYMOUR Attorney I .D. ��99�5� 2�4 East Fourth Street St. Paul , MN 55101 (612) 298-1950 ATTORNEYS FOR PETITIONERS -2- ...,�� _ . . __�..., p�N�( � i1NANCE COUDCII C�N/�RY -OEPAqTMENT GITY O�F SAINT PAUL p �/'�� 9�UE - �wvOR � Fl�t - NO. � � � ^ Cou 'l Resolution ��, . q Presented By � . Referre o Committee: Date Out of Committee By Date RESOLVED, that the On Sale Intoxicating. Liquor, Sunday On Sale, Restaurant licenses (as well as the Entertainment license _ to the extent it is applicable or effective in the premises licensed for sale of intoxicating liquor) , held by MFL, Inc. and . Clayton Club, Inc. d/b/a the Belmont Club, for the premises at 615 University Avenue in Saint Paul are hereby revoked, said revocation to be effective at 12:01 A.M. on the day following publication of this Resolution. � This Resolution and the action taken herein is based on the entire record of the proceedings herein, including the pro- ceedings before the Administrative Law Judge on May 24 and 25, 1988, the transcript of such proceedings, the documents and � exhibits introduced therein, the arguments of counsel for the parties on August 11 , 1988 , and their written exceptions and _ arguments, and upon the deliberations and findings of the Council _ in open session. In arriving at its decision, the Council adopted in whole or in part the findings of fact of the Administrative � Law Judge, together with amendments thereto, as well as certain conclusions, all of which are attached hereto as Council Findings and Conclusions. OtHer findings or conclusions of the Administra- tive Law Judge are not adopted. FURTHER RESOLVED, that a copy of this Resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and to counsel for the licenseholder, pursuant to Minnesota Statutes 1976, Section 14.62, Subd. 1. COUNCIL MEMBERS Yeas Nays Requested by Department of: Dimond ��s In Favor Gosvia Rettman ��;�� Against BY Sonnetr---�+ . Witson Adopted by Council: Date `�� Form Approved by City Attorney Ceriified P s• � Council . tar BY �'��' �' ��f'��— �/!& ,gS -- By� _ _ _ . _ i e+� � , Approved b 1Aavor ate `�`� � ' � � Approved by Mayor for Submission to Council , _ By �re- BY �Xh��# I� � •, � COUNCIL FINDINGS AND CONCLUSIONS ' 1. The Notice of Hearing dated May 3, 1988 was proper in this matter and all procedural requirements of law or rule have been fulfilled by the City. 2. An on=sale liquor license is held by MFL, Inc. d/b/a the Belmont Club. MFL, Inc. is owned by an individual named David Fan. Until March 15, 1988, David Fan also owned Dancing Angels, Inc. (City Ex. 7) . Nancy Osterman had been manager of Dancing Angels, Inc., which corporation supplied dancers to a variety of bars in Minnesota and Wisconsin. Ms. Osterman received $250.00 = $30PJ.06 per week salary from the Belmont and another bar to manage the dancers. On March 15, Nancy Osterman, the m anager of Dancing Angels, paid David Fan $20.00 and thereby purchased the stock of Dancing Angels , along with $ 15. 00 = $ 18.00 in liabilities. Now she receives approximately $100.00 per week of the $1 , 842.00 per week transferred to Dancing Angels from the Belmont. The rest of the $1, 842. 60 is used to pay dancers . 3. On November 10, 1987, at approximately 10: 00 p.m., Officer Dennis Meyer observed Belmont Bar em ployee Randy Glen Pape in a silver pickup parked to the rear of the house west of � the Belmont. A female was seated in the passengez seat next to . Randy Pape. Five minutes later, Officer Meyer drove back through the lot and saw Randy Pape in the pickup with a black m ale passenger. When Officer Meyer approached the pickup, Pape attem pted to hide something in the from seat. Officer Meyer subsequently seized a bag of marijuana sticking out of Pape' s pants pocket. The bag was 1 1/2 inches in diameter , and 3 or 4 inches long. An additional three bags of marijuana and two Thai sticks were found in the pickup glove box . Per Belm ont Bar policy, Randy Pape was suspended from employment for a period of time as a result of this involvement with drugs. 4. In January or February, 1988, Officer Meyer again saw Randy Pape with a dancer in the Belm ont Bar parking lot. He also _ observed a small tray with a green leafy substance and cigarette paper. The dancer ad mitted that the m arijuana was hers. Per Belmont Bar policy, the dancer, Debra Fox, was suspended from employment for a period of time and was fined. Randy Pape was dismissed. � 5. The sale of drugs by Randy Pape occurred when Randy Pape was off duty. After these incidents , an attendant was hired to monitor the Belmont parking lot six or seven nights per week. 1 ' , , ' , , 6. On January 14 , 1988 at approximately 9: 00 p.m., Officer Dennis Meyer observed two women loitering on the corner of Dale and Sherburne. One of them walked into the Belmont parking lot and began app=oaching men leaving the bar as they walked to their cars. She engaged one man in converstaion, but nothing came of it. • 7. As Officer Meyer approached to 60 feet northeast of the bar , in the parking lot, bouncer Jerry Meinhofer yelled at him "This shit' s gotta stop ... You can' t be doing this shit here ... I want you out now." - S. Shoztly after Meinhofer' s outburst, the Belmont Bar m anager apologized profusely for his behavior to Officer Meyer. Management had never tried to discourage the police from patrolling the parking lot, and indicated they would cooperate with anything the police wanted done: Two hours later , Meinhofer also apologized to Officer Meyer , although somewhat less enthusiastically. Meinhofer no longer works at the Belmont Bar . 9. In late November or early December . 1987, a thirteen _ year old _having in.itials T.D.M._ applied for employment at the Belmont Club. The job required her to dance in a glass cubicle adjacent to the area where drinks are served in the Belmont Bar. The cubicle was twenty oz twentyLfive feet by fifteen feet. T.D.M. was born on January 17 , 1974. She was thirteen years old when she was hired. She never filled out an application for em ploym ent, and lied about her age to Dancing Angels manager Nancy Ostezman when asked. She then performed an audition. David Fan was present at the audition. She was hired by David Fan. T.D.M. did not sign a contract with the so=called Dancing Angels, Inc. until seven weeks after her audition. She was clearly an em ployee under the direction and control of David Fan. T.D.M. aia not fur_nish .Nancy_ Osterman or David Fan with a copy of her birth certificate or any other proof of age when she was hired , or at any time thereafter. A reasonable person would have inquized further about T.D.M.'s age, given all of the facts and circumstances at the time she was hired. T.D.M.'s testimony • that she was not required to prove her age is credible; she had no motive to testify falsely in the license hearing , and no interest in the outcome of the license proceedings. Testimony of witnesses for the Belm ont contradicted each other on matters relating to the control and management of the dancers, and all had an interest in the outcome of the proceeding s. 10. T.D.M. signed a "Dancer,. Agreement" with Dancing Angels, Inc. which provided , among other things , that she was an independent contractor, free to exercise hez own judgment as to � costuming , exotic dance routines, and music used "as limited by . applicable- laws and ordinances." (Respondent's Ex. A) . This . -- _ � 2 Agreement also spelled out "Responsibilities of Dancer" , i.ncluding that " [dJancer shall abide by all applicable laws , statutes, ordinances and regulations governing exotic dancing ... [and) shall not ... commit any felony ...". (Respondent's Ex. A) . This Agreement was executed on January 4, 1988. (Ex. A) . Even though T.D.M. signed the Agreement with Dancing Angels, Inc., she understood that she worked for the Belmont Club , and that her boss was David Fan. 11. "Dancing Angels" are instructed that they can' t touch themselves in their genital areas. The St. Paul Legislative Code which relates to this subject is reviewed with the dancers periodically, and there is a sign posted in the dancer's dressing room which states : "You cannot touch, caress or fondle your breast, buttocks , anus or genitals. If you can't follow this rule you will lose your jobl ... , Att. all dancers, you must carry your valid Minn. I.D. on you at all times or you don' t dance. So don' t lose it." (Respondent' s Ex. D) . There was evidence showing another incident concerning a sixteen year old dancer , not alleged in the Notice of Hearing , but raised by counsel for Respondent _in his crossLexamination of Officer Meyer. _ (Tr. 78 = 79). This dancer was about .to perform on the stage and had no identification or proof of age. � 12. T.D.M. looks older than her age, and coulc3 be mistaken for an eighteenLyear=old. When she auditioned for Dancing Angel s , she was wear ing more makeup than she d id in cour t, and her hair was shorter , and stood np more. Nonetheless , a reasonable person would not have accepted her assertion of age at face value , but would have inquired further as to her age. 13. T.D.M. procured an identification card from the "Unbank" on December 8 , 1987. (City" Ex. 2) . On that identification card , her birthdate is shown as 1=17=68. (City Ex. 2) . � . 14. As a "Dancing Angel" , T.D.M. was paid approximately 510.00 per hour plus tips, which were stuck through slots in the glass dancing cage by Belmont patrons. She was paid- with a Dancing Angels, Inc. check, signed by David Fan. (City Ex. 3) . She worked six days per week. David Fan and a bartender , Sherry, were pZesent in the bar .during T.D.M.'s performances from time to time. David Fan would tell T.D.M. to leave the bar if she came in for pop or cigarettes , because she was under 21 years of age . 15. On FebruaZy 2, 1988 , Officer Lawrence Rogers entezed the Belmont Club, �iaving received information that T.D.M., a runaway from foster placement , might be in the Club. Officer Rogers did not discuss the matter with David Fan or ask for Fan's cooperation concerning T.D.M. David Fan ws present in 3 . � .� . ��-/�� - the Club on February �2, 1988 , and Officer Rogers characterized the Club's general attitude toward the police as "more than cooperative." At approximately 10: 00 p.m. on February 2, Officer Rogers observed T.D.M. wearing a halter or bikini top with a m atching mini=skirt. While dancing , T.D.M. exposed her pubic areas and buttocks by lifting her skirt and by squatting while facing males seated at stageside. While squatting , T.D.M. perform ed several pelvic thrusts and spread her legs in such a m anner as to expose her inner vaginal area. During a second song, T.D.M. returned to the stage wearing only the top of her costum e and continued to dance in a similar m anner, including the fondling and touching of her breasts and genital area. During a third song , T.D.M. returned to stage wearing only highLheeled shoes. She then continued to dance as previously described and also lay on her back with her feet on the stage, while bending her knees at a 90 degree angle. In this position, T.D.M. bridged her back, spread her legs, and performed numerous pelvic thrusts toward the patrons. This maneuver was accompanied by the touching and fondling of the breasts and genital area. 16. The City Attorney asked Officer Rogers to make out a suppplementary police. report, describing T.D.M.' s -activities in - - more detail , which report was completed on February 22, 1988. 17. The Dancing Angels policy is that a female has to be eighteen years of age to dance. If dancers are underage , they are not permitted in the bar. Dancers currently are required to have a valid Minnesota ID or driver's license to verify their ages . This represents a tightening up of identification requirements ; at the time T.D.M. , was hired , other kinds of identification were accepted . The Unbank ID was never acceptable. 18. Known prostitutes loiter in the University and Sherburne area. There are 3 j 15 prostitutes working the Sherburne area per night, depending on where the police cars are. They can be observed on the sidewalk to the front, back and side of the Belm ont Club. They can be observed inside the Belm ont pazking lot , talking to people leaving the Belmont. One neighborhood activist, Manual Nielendez, has observed prostitutes approaching cars in the lot five times in the last two years. Neighborhood resident Bruce Eisenm enger has seen prostitutes on Sherburne at the entrance to the lot on numerous occasions during 1987+-88; he has seen prostitutes within the lot on occasion and has observed some enter the Club. Mr. Eisemnenger observed such activities daily or every o�ther day until the last month. Officer Charles Lutschen has contact with prostitute problems in and about the Belm ont about two tim es per night. Officer � Lutschen believes he has made one arrest in the Belmont parking � lot. There are more prostitutes on the sidewalk than are ever 4 seen in the lot. Some of the prostitutes go in the parking lot tA -evade the police. The Belmont parking lot also is used by patrons of the Faust and Flick Theaters, although management has attempted to discourage this. It is quite common to observe discarded condoms in the parking lot and adjacent streets. Pimps and prostitutes have been observed entering the Belmont. In the winter , these people may be looking for someplace warm. The record contains little evidence regarding the activities of these individuals inside the bar . Officer Dennis Meyer saw a prostitute in the bar only once, and he didn't inform management. Officer Charles Lutschen has observed pim ps sitting in the bar , where prostitutes come to deliver money to the pim ps. He has observed prostitutes and pimps use the bar for drinking and picking up customers. He has never made an arrest inside the bar for solicitation; but he has m ade 20 = 25 arrests outside the bar for solicitation inside, and others , as follows : one (1) in Lendway's lot, two (2) in Skipper' s lot, twenty to thirty (20 = 30) on the corner of Sherburne and Dale , twenty (20) on University and Dale, as well as numerous arrests at St. Albans and Sherburne and Kent and Sherburne. 19. The Belm ont Club is located in a high crim e%high prostitution area. While the Belmont is not the sole ana exclusive source of prostitution in the area , it is used by prostitutes in sufficient ,numbers for meeting ' with johns , for shelter from the elem ents , for avoiding police officers, for meeting with pim ps, and in conjunction with the parking lot using the licensed activity as a base of operations. Prostitutes use houses on Sherburne. 20. The Belm ont Club wasn' t "targeted" for protest by community action groups until recently. After the T.D.M. incident, David Fan met with the vice squad to discuss procedures that were going to be followed. Sgt. Schaub expressed his intention to give the Belmont more photographs of known prostitutes and pim ps , but wasn't going to do that until a procedure was settled upon. City officials met with Belmont representatives on April 1 , 1988, to try to reach an agreement to eliminate the pzostitution in the Belmont pazking lot. David Fan - said he would hire a security guard and do everything possible to eliminate prostitution in the lot. He requested photographs of known prostitutes and pimps. He suggested that seminars be given to his employees regarding how to identify prostitutes or pimps. He was cooperative regarding eliminating the problem, looking for guidance from the police departm ent. During �the last m onth , there has been a "tremendous improvement" in the discouragement of prostitution around the Belm ont; Chris, the security guard , currently is doing an "excellent job" of "shooing girls off the lot." During the last couple m onths, Belm ont em ployees have been more vigilant about stopping prostitutes at the entrance to the 5 parking lot. The Belmont parking lot is well�lit and the trees in . the area have been trimmed. The Belmont efforts at improvement are clearly related to and result from the initiation of enforcement action against the licenses of the Belmont Club. 21. The Belmont management has not always cooperated with the police as they come through the bar. The bar management allows the police to come inside and make fzequent checks. �ouncers and bartenders have infrequently pointed out prostitutes and pim ps to officers and asked officers questions regarding whether a woman is a working prostitute, but more often have failed to recognize that the problem exists and have not responded to Officer Lutchen's requests to view photos of prostitutes working the Belmont Club and parking lot. The bar manager once has advised the police, "I think ,he' s a pimp; I think she ' s working ." Oficer Lutchen has advised the bar management that they do have the right to evict known prostitutes, especially if they are working the bar , but he has never been asked to evict a prostitute. In contrast, he has been called approximately twenty times to evict prostitutes from Lendway's Bar near the Belmont and Lendway's Bar has sought _ _ vigorously to dQal wit.h the problem . The Liquor License Inspector has received complaints about prostitution in relation to the Belm ont Club, but has not received similar com plaints about Lendway' s. � CONCLUSIONS 22. The licensee employed minor T.D.M., who lied about her age in order to obtain employment. The City has sustained its burden of proving that T.D.M. was em ployed for the purpose of engaging in a sexual perform ance, and has sustained its buzden of proving that the licensee permitted a minor to engage in a sexual � performance. _ _ _ 23. The Council concludes that the findings and evidence in the record zelating to prostitution are sufficient grounds for disciplinary action relating to the licenses of the Belm ont Club, in that they reflect the existence of a nuisance for which the said Belm ont Club is accountable, and constitute a serious danger to the public health, safety and welfare. Such findings are grounds for adverse action under Section 409.88 (6) of the Saint Paul Legislative Code, prohibiting licensees from permitting licensed premises to be used as a resort for prostitutes; Section 310.66 (7) of the Code allowing revocation when the actions of the licensee in the licensed activity create danger to public health, safety or welfare; and under Section 231.01 of the Code, as well as Minnesota Statutes 1986 , Section 609. 74 , relating to nuisances. 6 24. The Council . concludes that the findings and evidence in ,the record relatinq to hiring a thirteen=year old girl to engage in sexual perfo=mances are sufficient grounds for disciplinary action relating to the licenses of the Belmont Club, in that they sho w that the licensee has indicated by such misconduct his lack of the requisite fitness and good moral character to engage in the licensed activity as provided by Section 310.06 (9) of the Code. Such findings also show a violation of Minnesota Statutes 1986 , Section 617.246, and of necessity constitutes grounds for adverse action under Section 310.06 (6) of the Code , concerning violations of statutes which reasonably relate to the licensed activity. 7 � . ' � . City-88-U21-L"`r �� /r� SO . _ . 53-2101-'�427-G 5TATE LlF M I�lNESUTA OFk IC� QF ADM IN I5'i'I�AT IVE N�AFt 1NGS �OR TF•tE C ITY UF S'x . F'AUI. Ir� the �i�tter of t�e FINL�I�lGS Cl� FAGT , Or�-s�l� Liq��or Licens� GpNCLU5InN5, ANT� for the Fselmor�t Cl��t� R�Cpi�hiE�lUAZ'ION The �bnve-t�r�title�j m3ttpr c3mc� or� for I�e�rin� before A�mir�istr3tive L�w ,�ud�e Carol Grant an M3y 24, 1�88, in the Fourti� Floor A��itori��m, 5t. f�:aul Put�lic Libr.�ry, at. P�ul , Minnesot�. �urs�.�r�t to the stip��l�tinr� of t�ott� p�rties t�ereir� , ttie he�rir�� ir� this m�tter concXu�� an ;1une wl , 1968, the ��3te of receipt of tt�e fir��l t�rief of the licer�see. Philip I3yrr�e, A�siSt�r�t City Attorr�ey, Attarr��y for ti�re City of St. P3u1-Licer�se Ir�spector , G47 City Hall , 5t. p�ul , �fN JJ�.O2, appe:�re�� or� beii3lf af tt�e City of at. Pa��l . :l3mes Rresnah�n and M�ry 5eymc�ur , Coct�rar�e & �resr��han, �4 East Faurt� St . , 5t . Ha�rl , hi�! 5`;lUl-lU�J�7, �ppp�re�l c�r� �ret�►alf af the licer�see. This keport is sut�mitted to the St, PaUI City CoUncil p��rsu�nt ta �ertihr� 31U.0�; ( c-1 ) of ti�� 5t. P��1 Le�isl�tive Co�e. STATEMENi qI I55UE5 The issues to t�e ��etermir�ed in this proce��ir�g are whether s3nctions �houl�j be imposed upan or�-sale liq��or licer�se�ol�er MEL, Inc. , d/t,/a1 th� �elmor�t Cl��t� bec��se ( 1 ) .�n off-�Uty emplayee possesse�J drugs in the Belmar�t p�rN,ing lnt, c�usir�g Eselmont m�r�agem�nt t� susper�d �r�d ther� tire the employee; (;�) ar� employee yelled at and therehy ir�terfered with a police AY�iCGI` ir� the perfurm.�r�ce a� his duties, r��sir�� I�elmont n�ar��3einer�t to apalo�ize to the nffirer and require the empinyee to .�polo�i�e as w�ll ; (3) � mir�or , who lie�j aGoUt her a�e wt�er� employed t,y L1�r�cir�g Angels, Tr�c. , er��ed ir� a sexual perfarmanre wiiicly CAU�� t�e viewe�� k�y E�elntior�t Club p�trartis; or (4) prastitutior� activities an or �t�out the licer�sed premises C0115't1tUt�� nei�hGarhnnd CIU1531'�CB. E�ased upon :�11 of .tt�e proceedir��s herein, the A��mir�i5trative Law ��dge m�N,es the fnllowin�: F IND I�tGS OP �t�CT 1 . pr� or��s�le liquor licer�s� is liel�� y MFL, Ir�c. d/t�/a/ the Belmar�t Clut� . �iFL, Ir�c. `is awr�e�� Gy �n individua]. r�ame�� D�vi� F3r� . lJr�til i�arcti 15, 1�J88, Il�virJ Fan �lso owryerJ D:�r�cir�� pn��ls, r�� - � . I��c. City E:i. '. N�ncy Ostera»r� t�a� beer, ana�er of Ltar�cin� ' An�els, Inc. , which corparatinn s��pplied �i�ncers tn 3 v�riety of t�ars ir� Mir�r�esnt� �n� Wiscansir� . his. Ostermar� receive�� SU.-3UU. per week s�lary from ttie E�plmor�t :�nd 3r�other k��r to m�r�a�e the ciar�rers . pn March 1;, Nancy Ostermar•�, tt�e man3�ez� af D�ncin� Ar�gel�, paid U�vi�i Far� �'�0. ar�d tt�erel:�y p��rch�sed the �stork of Tiar�cir�� Ar�gels, �lar�� with �15.-18. in li:��,ilities . Tlnw s�e receives �pproximately �1U0. per week of the �1 ,�34�a. per week. tr�r�sferred to Uar�cir�� An�els frvm the Relmor�t. Tt�e r�st of the �1 ,g4'4. is userJ tn p3y ��r�cers. � �. Or� Nov. 10, 19�37, �t apprn:•:im�tely 10.00 p.m. , Gfficer Uenr�is �feyer vt�5erve�� I�elmnr�t E�ar empinyee R:�r��Jy ��1pr� P:�pp ir� :� silver pic�up p�rk.ed to the re�r oP t�e haus� west af tt�ie F3�lmar�t. A fem�l� was se�te�� ir� ttie p�ss�r�3er se�t r�e>;t to kar�dy Pape. �ive mir�utes l�ter , Officer �ieyer rJrove b�ck. thro��ti ttia lot ar•�� saw k�r��y P�pe in tti� pic�.up with � t�l�ck male passen��r .Wi�er� Ufficer hieyer �ppro�ched the pic�up, Yape attempte�j to �ide somethir�� ir� tlye fror�t seat. Officer t�eyer suk�sequ�ntly seized � t,�� of m�ri ju.�r�� sticl,in� out of P�pe's p.�r•�'ts pncket. rhe ba� w3s :L 1/� ir�ches ir� ��i�meter , �r�� 3 or 4 ir�ch�s lon�. Ar� a��itinr�al 3 ba�s o� mari ju3n3 ar�� 2 Thai sticks were fa��r�� ir� the pickup �love t�a::. F�er Eselmnnt E��r policy, I2ar�dy Pape was suspen��ed from employmer�t for a perio�� o� time as � resu'lt vf thi� ir�vnlvemer�t with dr��s. 3. Tn J�nU�ry or �et,ruary, 1�88, Offieer Nfeyer a�air� saw Rar��y Y�pe with � �ar•�cer ir� the E�eln�nr�t Bar p3rkin� lot. He �lsn oL�served a small tray witF� � �reen leafy s��t�stancp an�j ci��rett� p•�per . The ��3r�cer ��jmitterJ th�t the m�ri j�a�r�� w�5 hers. Per E�elmor�t B�r palicy, tr�� danrer , Uebr� Fox, was s��5pen�:ie�i f'rom employmer�t for .� perio� of time ar•�� w�s fir��. F1:�r�rJy Y�pe wa� dismissed. 4. Tr�e s�le of r�r��s by It�nr�y P�pe occurred wher� R�n�iy F'ape w�s off-duty. After tiiese :incider�ts, :�r� 3tten��nt w�s hire�� ta mor�itor ti�e L{e1mGr�t parkir�� lot G ar 7 r�i�hts per week . �. Ur� J�r�Uary 14 , 1�)flB �t :�ppra.:im�tely �:00 p.m. , Ufficer I�er�nis Meyer ot�serve�� twa women loiterir�3 vr� tt�e corr�er af L7a1e . ar��:i Sherk��rne. Ur�e of ttiem walke�j ir�to t�e E��lmar�t p�rkir�� lot �n� t�e�3r� �pproart�zn� mer� le�vin� the b�r �s tt�ey w:�lke�� to their c�rs. ahe �r�3��e�j nr�e m�n ir� car�versatinr�, b�at r�othir�� came of it. G. As Officer �ieyer apprnached ta GU fPet r�urtheast of the t�:�r , ir� t�e p3rkir�� lot, k�o��r•�eer Jerry Meir�hofer yelle�� t t�im, "This st�it' s 3otta stop. . .You car�'t t,e doing this shit t�ere. . . I w:�r�t ycau c�ut r�ow. ' 7. 5t�ortly after hieir��iofer 's o��tb�arst, tr�e Pelmont B.ar mar��er �polo�i�ed profu�ely fnr hi.s beh�vior tn Offic�r �Seyer . Mar��ement h�d ��ever tried tn discnura�e trie police from • ° p�tr�'l�.ir�� t parkir�� 1ot, �r�d ir��irate they woul�:i cooper3t� ' with :�r�yti�ir�� t�e pvlice w�nted ��or�e. Two t�U��rs later , Meir�hofer �lso apningi�e�� ta Offirer Meyer , altlio��t� sninewh�t less er�thusi�stically. hieir�hofer no lor��er wnrks at the Relmr�r�t Bar . 8. Ir� late hov�mGer or e�rly Uecemt�er , 1�87, � juvenil� havin� ir�iti3ls T.D.M. applier� tar employmer�t witlti D�r�cir�� Ar�!�els, Ir�c. Tt�e j�t� required her ta dance in 3 31�ss cuk�icle a�:i jacer•�t to the �re.� wt�ere ��rir7ks are serve�J in the Belmnnt B�r . The cubicle w.as twenty ar twer�ty-five feet t�y fifteer� feet. T.D.hi, w�� barr� on ��r�. 17, 1�)74. 5he w�s 13 ye�rs old wh�r� �Fie w�s nired. 5he r�ever filled aut an �pplic�atiar� for emplayment, ar��i lier� �Gaut �er ��e tc� T�:�r�cir�� Ar��els mar��r l��ncy (lst�rmar�, wt�er� she asNe�i. St�e ther� performed �n auditior�. Tiavid F3n w�s present 3t ti�re �u�iitian. 5he w.as hire�J h�y I�avi� Far�. 9. T.L1.M. si�r�ed a "Lt�r�cer A�reement' witi� Dancir�� Ar��Jels, Tnc, whirh provi��e��, �mor�� nther thir��s, th�t she was ar� ir��eper��er�t contrartor , free tv e::ercise her owr� jud�ment as ta costumir�� , � e;,atie ��ance ro�tir•�es, ar�d music USE�� '3s limited r�}I 3}]p11C3t�le laws .arr� or�jir��r�ces. ' kespor�dent's E:. A. This A�reement .�lso s�elle�i c�ut 'Itespor�sit�ilities of L��r�rer , " inclu��ir�� t�at , ' C�]�r�cer sh�11 abide t�y all �pplic�L-�le l:�ws, st�tUtes , ordir��r�ces �r�� re��a:l�tiar•�s �overr�ir�� e::otir �aricir�g. . . Car��] sh311 r�ot. . .conimit any felor�y. . . ' I7espor��er�t's E>:. A. Tt�is A�rtenient w3s e>;@CIJ'tE'�� ar� ;1�r�. 4, 1']l38. E>:. A. Even �thn��h T .U.�i. si�r�� th� A�re�m�nt witt� L��ncir�� Ang�l�, Tr�r. , she ur�derstao�� that st�e wvrke�� fur tt�e &elmnr►t Clu�, 3r��j ttiat her t�nss was Lt.�vid ��r�. 10. ' Xiar�cin� An��ls' �re ir�structe�� that they can't ta�arh themselve5 ir� their �er�it�l ar�as. 1h� '�t. Yaul �.��is. Co�Je which rel�tes ta this sUt�ject is reviewe�� witi� the d�ncers perio��ir�lly, �r�� there is � sign p�ste�� ir� the ��r•�cer�' dressir�� room wt��ir� 5't3t@S: " You c�nr�at to��ct�, care5s or fon�:ile ya��r bre3st, t��ttoc�s, ar�us or �er�itals. If yn�� c�r�' t fallvw this r��le ya�� will lose ynur jot� ! . . .Att. all d:�ncers, Yo�a m�ast c3rry your v.31id hiir�r�. I.L. ar� ynu �t �11 times or yoU dor�'t d�nce. So don't lose it. ' Respond�r�t's E:•:. U. 11 . :l'.U.hi. look.5 o'l�er th�r� her �ge, ar�d co�ld be mi5t�l,er� far �r� ei3hteer�-ye�r-old. Wt��r� she �uditioned for Lar�ci.r�� Ar��els, sne was we�rir�� more m�ke��p tliar� s�e di� ir� caurt, :�r�r� her hair was shorter , ar�d stoo�l up more. 1�. T.I7.M. proc��red an i��er�tific�tion c�r�j from tt�e 'Unb�r�k.' or� ii�c. 8, 1987. City 8::. �: Ur� th�t i��pntific�tion c�r�i, t�er t�irthdate is showr� as 1-17-G8. City E>:. '�. 13. As 3 �I��r�cin� Ar��l ' , x.U.M. w3s p3i�� ppro:;im�tely $10.00 per t�o�ar plus tips, which were stucl, t�irou3h slot� ir� tt�e �l:�ss �J�r�cir�3 ca�e t�y T�elmor�t patror�s. 5he was p�ir� with � U•�r�cir�� Ar�gels, Ir�r. check, si��ed t,y David �an. City E:•:. 3. SY�e wnrk.e�� , � . si:. ��ys per �elc. U�vi� Far� ar�� a t��ri der , ah�rry, were � preser�t ir� the b�r �iurir�g T.I1.M. 's performances fram tin�e ta time. Davi� F:�n wauld tell T.Lt.M. ta le3ve the t��r if slie c�me in for pop or ci�arettes, ber�use she was ur�der �1 years of �r.�e . 19. � Or� Eeb. 2, 1988, t7fficer L�wrer�ce Ro�ers er�tere�� the Relmont Cl�t,, h3vin� receive� information t��t T.D.hi. , 3 r��r�3w3y from faster placement, mi�ht bp ir� the Clut►. Ufficer ka�ers ��i� not discuss the a�atter with Davi�J ��n or as�, far ��r�'s cooperatior� cancernir�� T.D.�S. . Ii�vi�� ar� was preser�t ir� the Cl��t� or� F�b. 2, 1�J88, ar�d Ufficer Ragers ct��r�cteri�eci the C1uL� 's �er�er31 �ttitur�e towar� the palice 35 "m�re tt��r� cooperative. ' At appro,:im�te]y 10;U0 p.m. on ket�. 2, Officer Ra�ers ok�serve�:i T. I:�.M. wearir�� h�lter or bik.ir�i top with � m�tctiir�� mir�i-skirt. Wt��ile d3r�cing,T.U.�f. e:;pc�se� her put�ic are.�s �r�� bUttocks hy liftin� her skirt ar�� t�y sq��:�ttir�� while f�cir�� m�les se�ted �t sta�eside. While squ�ttir�g, 'r.Ii.t�. perfarme�� s�ver31 pelvic ttir��sts �r�� sprea�� her le�s ir� surh a mar�rtier ay tn e::pose t�er inr�er v��ir�al �r��. Li��ring 3 secar�� sor��, T.11 .�f. returr�e�� to tt�� st:a�c� we�rir�� or�ly the tap c�f her cost��me �r��:i cor�tir�u�d to dance ir� a simil3r m•�nner , ir�cludir�� tt�e for��.li.r�� nd tvuchir�� nf her breasts �r�� er�it�l 3rp�. T��.irir��3 � third son�, T.I1.t�. ret��rr�ed ta the sta�e wearir�� or�ly higi�-heeled shoes. She tt�er� cor�tir��ed tca ��ar�ce as previa�.asly �escri�,�� ar•�� 1150 l�y or� her t��ck witi� her feet or� the stag�, wt�ile t�en��in� her k.r�ees :�t a �0 de�r�e 3r��le. , Ir� this posxtion, T.Ii.�i. brid�ed t�er back, spread her le�s, ar�d per�orme,� nUmerou� pelvic t�r�asts tow�r� the p�tror�s. �his m�r�euver was �ccnmp�r�ie�� by t�e touchir�� r�� fondlir�� of the bre�sts ar�d �enital �re3. 1�. The City Attorn�y asked Clfficer Flo�ers t� maNe o��t � sUpplementary palice report, descriL�ir�� T.D.Mf. ' s activities ir� more detail , wt�ich report w.as cc�mplete� ar� Fek,. 22, 1��38. 1G. Tt�e Dar�cin� An�els policy is th�t a femal� h�5 ta tae 18 ye�rs of a�e to ��r�ce. If �iancers are ��r��er��e, they �re r�ot permitte�i ir� trie t�ar . Lt3r�cers c�.�rrer�tly are req��ire� tv h�ve a v:�lid Mir�r�esota ID or ��river 's licer�se ta verify ttieir .�ges. This represer�ts 3 ti�t�ter�ir�� up of i�entificatian rec��.�irements; �t the time T.Ti.M. was t�ire�, other �iryds of id�ntificatinr� were 3ccepted. Tt�tie Ur�t��r�k II� w�s r�ever acceptat�le. 17. t:r�c�wr� prosti�tutes loiter in the Ur�iversity ar�� Stierk��rr�e are�. There �re 3-15 prnstitutes work.inr.� ti�e 5hert�urne .�rea per ni�t�t, �eper��in� nr� where tt�e police c�rs are. They c�n t�e ot�serve�� ar� the sidew�lk to t�e fror�t, b�ck �n�i side af the Helmor�t Cl�t�. Ttiey c:�r� t�e observer� insi��e tiie Belmar�t parL..ir�ra lot, taYking to peaple le3vir�� ti�e L�elmor�t. Un� r�ei�ht�orrioorJ vi�il3nte , �far��el �feler��Je�, h�s nt�server� prostitut�a �ppro�chir�� c�rs in tt�ie lot fivp tim�s ir� tt��e l�st twn years. N�igt�k�orhao� re5i�er�t Rr��ce Eiser�mer��er has seen pro�tit��•tes or� 5herb�.arr�e at the er�trar�ce ta tt�ie lot an numeroUS occasiar�s �i��rin� 1�J�37-8�3; he h�s seen prpstit�.�tes withir�� t�e lat nn occ�sinn ar�� h�s ot�serve� some er�ter tt�e [:luk�. Mr . Eiser�men�er ot�serve�i SUCP't �rtivities ��-/5�� . rJaily or eve� other ��ay �r�til the last r�th. Clfticer Ch�rles • L��tscher� t��s cnr�t�ct witt� prastitute prat�lems in .�r�d �k�c�ut tF�e K�1mnr�t at,o�.�t two times �er r�i�ht. Officer L��tscher� t�alieves tie has m�de one arre�t in trie Belmor�t par�iw�� 1nt.T�iere 3re mare prostit��t�s or� ttie si��ew�lk. thar► �r� ev�r seen ir� the lot. 5ome of the prostit��tes �o ir� tr�e parkin� lat to evade the palice. Tt�e Eselmar�t p:�rkir�� lot :alsa is �a�e�J t�y p�tror�s ot tt�e E'��ast 3n�� Flick theaters, altt�iou�h m.�na��ement h�s .�ttempte�� to disco��ra�e this. It is q�rite cammar•� ta ot�serve disc�rd�r� cor�dnms ir� the park.ir�� lat �r�� j jacer�t �treets. Pimps ar��d prastit��tes t��vn t,eer� observ�d enterir�� thc� Belmor�t. Tn ttie wir�ter , these peaple m�y t�e look.ir�� far somepl�ce w�rm . Tt�e recard cor�tair�s litl:le evi�Jer�ce regar��ir�� the activities af tt�ese ir•�d:ivi�u:�ls ansi��e the k�ar . Ufficer Ti�nr�is Meyer saw a prostitute ir� th� bar ar�ly once, �ar�d he �ii�Jr�'t ir�form m3na3emer�t. L7fticer L'I��rles L��tschen has ot�serve� pin�ns sitl:ir�� in the t�ar , wt�ere prnstit��te� come tra deliver mur�ey t� th�+ pimps. �He h�s nt�serve� prosti��ates ar�d pio�ps ��se ti�e bar for drir�N,ir�� ar��i pickin� up custamers. He h�� never m�de �r� �rrest ir�si��e the t�ar for �nlicitatiar�, t��.�t 1ie has n�ade 2U-25 �rr�sts outsi�e the t�ar far snlicit.ation insi�Je. 18. The kselmor�t Cl�rt� is luca�te�� in � hi�31i crinie/hi3ti prostit��tiar� area. Tr�e Relmar�t is not the sn��rce of prostitutiar� ir� the area.Prostitutes Use tioUSes nn Shert,urr�e. 19. The E�elmor�t C1Ub w�sr�'t 't�rgete�' fnr pratest t�y camm�.�r�i.t,y �activn �rn��ps ��r�til rPC�r�tly. After the T.�1.M. inci��er�t, I�avi�i ��r� met with tF�e vice squ�d to �15CU55 proce��ures th�t were �oin� to t�e followed. S�t. SCII3�JI7 e::press�� his ir�ter�tior� to �-�ive tt�re L��lmar�t more photo�r3pt�s of k.nown jJI`(]5tl't�.J'tE'5 �r�� pimps, but w�sr}' t �nir•��a to rPu bh�t ��r•�ti1 a pruce��re w�� settle�� por�. City officials met with Lielniant repre�er�t�tivps nr� Apral. 1 , 1�J8t3, ta try tn re�cti �r� ��re�m�r•�t tn elimin�te pro�tit��tior� in the L�elmor�t p3r�.ir•�� lnt. I1�vi�J F�r� 5aid i�e wnul�� i�ire � security g�aar�� ar�� r�o everyt�in� possibls� to elin�inatP prostit��tian ir� th� lat. He requeste� photo�r:�p�s af kr�awr� prnstit�ates �r�� pimps. He s��e5t�� th:�t seminar5 t,p 3iver� to his �mployees re�ar�iir�� t�aw to ider�tity prostitutes ar pini�s. He w�s conperatave re��c��ir�g elimir��tir�� tt�p prnh�lem, 1pC�1:].1-�!'-� for ��.�idar�ce frr�m the palice dep3rtn�en•t. Tiurir�� ti�e last montti, thPre fias ��eer� � "tremen��aus improvemar�t " ir� ti�e �iisca��ragemer�t of prostitutior� �ro�nd th� Belmont; Chris, ttie s�c��rity ��r�, r_��rrer�tly is gnir�� a�� 'e,:celler�t jot�' nf 'shooir�� irls off the lot' .Durir�g tt�e last couple mor�tris , B�lmnr�t employees 17:�ve t�eer� mare vigil�r•�t �Gnut stopper� prostit�.�tes :�t tt�ie entr�r�ce to the p�rkir�� lot. T�ie Relmor�t p3rk.ir�� lot is w�ll-lit�: :ar��d the trees ir� the �rea ti�ve beer� trimmed. 20. Ti�e Belmar�t mar��emer�t h�s �1w�ys cooperater� with the pnlice as they come throu�h the t�ar . Th� t��r m.�r�a�emer�t .�11ows the police to cnme ir�side and a�ake frequent ct�ecks. Rour�cer� ar��J t�3rter�ders h�v� pninte�� out prc�stitutes .�r��J pimp� to otficers ar�d �sk.ed officers questions re��rdir�� wt�ether a wvm:�r� is � . worl.ir�� prost ute. The G�r m�r��er h:�s �ise�� tti� pnlice, ' I � thir�� he's a pin�p; I think she's warkir��. ' The t��r m3r��a�er F��s asked tt�p palic�+ if the t��r h�s the ri�ht ta evict I.r�owr� prostitutes, especi�lly if they are workir�� t�e b3r . Officer Charle� Lutsrhen 1i�s r�ever �,eer� ask.erJ tn evict a prvstit��te. Ir� cor�tra�t, he t�a� beer� c.alled �pp�a:•:im�tely twer�ty times to evict prostitutes frnm Ler�w�y's E��r r�ear the I�elmant» The Liquor Lirer�se Insp�ctor has recea.ved compl�ir�ts about prostitutior� ir•� r�latiar� tn the k�elmont Club, t,ut h�s r�nt rPCeived similar complair�ts ak�oUt Lemw�y's. E��se�� upon the fare�oin� �in�ir�gs of Fact, t�e A��mir�istrative L�w :�u�i�� makes the follawir�3: CONC:LU5 TUNS 1 . T�e A�:�mir�istr�tzve L�w J�ad3� �r�� ttie 5t. Y��1 City Cour�cil t��ve j��ri�dictiar� over tt�iis m�tter p�.�rsu�nt tU Mi.r�r� . ......._.._....... S�t�a.t. 34UA.40�, hi_xr�r�_.._St3t ., 14.50 �n� 5t . I'3��1 L��is. Co��e . ........ ...._...... ch�pter 31Q & 4U��. T�ie Natice of H��ir�� w�s prapc�r ir� this m•atter �n�� 11 prac��r�1 req�aireme��ts of l�w car rule have be�r� f��lfilled k�y th� C:ity. 2. 5t. �aul Le3is. Cnd� S�c. 40�J.08f:►) req�.�ires tt�e licer�se� to m�ir�t3in or�jer ir� his pl�ce of t�usir�esy. 3. �t. Yaul Le�is. Co��e 5ec. 310.OG(t�) (7) permits ti�e [:i.ty to t�k.e a��versP �ction a��ir�st � licer�sep if the "�ctivities nf the licer�see ir� tt�e licer�sed �ctivity cre�te ar t�ave �reate�� seria��s �j3r��er to the p�.ak:�lic healt�, s�fety or welf.�re. . . " 9. St. I'��1 Le�is. Cade Sec. 310.OG(b) (G) permits the City to t��e a��verse �rtiar� :a�.�ir�st � licer�see if the ' licensep. . .h3s violated any nf the pravi.sions af tt��ese ct�apters, nr of ar�y 5't3tU'tE'� nrdir��r�ce or regulation re�snr��E�ly relate�� to ttie licer�sed aetivity. . . ' Jr Twc� isol�ted ir�cidents invulvir�g the possessior� of ��r��gs t�y �r� ott-d�aty emplayee ir� the licer��ee' s p�rkir�� lot ��a not reflect t�e licer�see's fail��re to n�air�tain nrder , p�rticul�rly wher� the employee w�s pur�ishe�� t�y ttie licer�see. �lor �Jo the inci�i�nts car�stitute activity t�y the licer�see ir� violatinr� of t�� law or w�ich cre�tes � serio�r� �j�r��er tc� the p��blic t��lth, �afety ar welf3re. T�lIJS� the City ��s r�ot prave�:� vialatior�s of 5t. Paul Leg. Co��e sections 310.00�tt�� (G) ,310.UG(t�) (7) or 9U�J.0�3(5) due to trie use of drU�s in the belmor�t p�rkir�� 1_s�t. G. An ir�ci��r�t ir�volvir�3 �r� employe� af tt�e licer�seP wha yelle�� t 3 police officer to disco��r��e him from ir�vestig�tir�� possit�le pro�titution outsir�e the licc�r�se�� premises CIOES r�at reflect the lic�r�see's f�ilure to mair�tain nr�er , p3rtic��l�rly wher� mar��en�er�t �paln�ized immecii�tely ar�d profusely far tP7e employee's Geh�vinr , :�nr� require�� the emplayee ta �palogi�e to the afficer involve��. Nor di�j ti�e ir�ci��er�t consti.t��te activity by the licer�sep ir� vic�l�tinr� of the l�w or which creates a , ' . serio��s ,�.�r�� ta the put,lic he�ltt�, s�i y nr welfare. ThuS, � the City h�s r�ot prove�� vialatior�s of St. Pa�a1 Le�. Code sectiar�s 31U.UG(b� tG) , 310.OG(k�) ('7) , nr 4U9.U8(�) due to ir�terference with the pc�lice t�y � Belmar�t emp'loyee. 7. Mir�r�. Stat. G17.w4G Subd. u provi��s th�t it is ..._.._.._............................ 'ur�lawf��1 for -� persar� to . . . employ. . .or permit . . . a mir�ar to er��a�c in . . . ar�y se:,��1 p�rfvrmar�ce if •the persnr� knows or h.�s re�son to k.r�nw th�t tt�p can��uct ir�ten��e�� is � se:•;u�1 perfora�.�nce. ' This st�t�.�te is r�asar�at�ly rel�t�r� ta the licer��e�:i activity in ti�is c�se. 5t. Pa�.�l Le3is. Cod� 31Q.OG(G> . 8. 1:�3r�cir�g Ar��els, Ir�c. , not the lic�r�s�e, em�aloye�� mir�or T .I�.hi. , who 1i�� :�t�a��t her �ge in ar��er t� oh�t�ir� �mploymer�t. The City has r�ot sustair�e�J its k��rder•� of provir�g th�t T.It.�. wa� en�ployed for the purpose af er��gir�g ir� a se:.u�l perform�nce, but has r�ot sust�ir�� its t�urder� of pravin� that the licer�se� permitte�� a mirior to er��e ir� � sexual p�rfnrn�3r�re. 9. at. P�ul Le3is. Code Sec. 310.OG(�> provide� th�t ��ver5e �ction may k�e t.�k.er� ��air�st 3 licer�se� if the ' licer�s�e. . .has shown by past miscor��uct. . .t�at such 1 icensee. . . is r�ot � persor� of the �oo�� moral ch.�r�cter or fitness req�ired to en��qe in � licer�se�i �ctivity, t��sir�ess or professior�. ' lU. :Che City t�as r�r�t sUSt.air�e� its k�urden af provir�� that the licer�see is nnt of �oad mar�l rh�racter . 11 . St. Pa�l Le3is. Go�je 40a.08(G) provid�s th�t na ' licer�see shall , . .p�rmit t�e licer�spd prEmises ar �r•�y raam in the s3me or 3r�y a�joir�ir�� bui.l��a.r�g directly ur�der his car�tral ta t�e US@� �s a resort for prostitute� , . . ' 12. The City h�s r�at sust�ir�e� its b��rden of provir�� tt��t the licer�see permitte�� tt�e lic�r�s�� premises ta t�e ��se�� •35 � resort for prostitutes . 13. Mir�n. �t�t_.,, GO').7A �r�d ;G1 .U1 prai�ibit r�ui�ances, �nd ..._......_.._..._... arp reasnr��t�ly rel�te�� ta th� lic�r�se�j 3ctivity. St . P��1 Le�is. Code 5ec. 31U.pCy(k�) (G) . 14. Ur�til this sprir��, the licer�see permitte�j � cor��ition ir� tt�e �Selmor�t parkir�g 1�•t wliich canstit��ted � r��isar�ce. The parkir�� lot situ�tior� rurrently is accept�k�le frnm a put�lic perspective. 15. Tt�tie attact��d �iemoranrJuni shall t�e nia��e � p�rt of the pruceer�ir��s hereir�. E�ased upon t�e fare�oir�� Conclusions, the Admir�istrative Law �u��ge mak�s the following: kECIJ�iMEiVI1AT ION IT I5 HEk�NY Ft�C(JMi�ENliEll ttiat the City Ca��r�cil take �jisciplir��ry activr� ��ir�st the licer�see t�y imposir�� tt�e f�llawir•�� cor��iti�r�s upor� th� lic�!r�see. 1 . � m:�r��atvey park.ing l�t �tter�d�r�t fram naar� tc� cl�sir�� every ��y the t��r is open, whos� job 5F'13�.�. � ��- i�� . � � t�e t �liscoUra�� olicit�tior� f prostitutior� in � ar�� r�ear tt�e p�rkin� lot. �. Th�t the licensee, by its �ger�ts, pnrsar��lly �r►� r�i�htly �en��r�� ar�� check �t.�te ��river 's licer�s� ider�tific.atian af �r�y d�r�cer visible in the ]. icer�se�J premises, ta verify th�t the ��r�cer is nnt .� niinor . 3. T�3t the licensee keep a rerord of n�me �n�� i��er�tificatiar� ir�form�•tion far r�3r�cers visiF�le ir� the license�� premises, wt�iirr� m�y t�e chec:lce�� in the ever�t further questiar�s �re r�ise�� at�out ur��ra�e dar�cers visiF�le in the premises. 4 . Th�t the 1 icer•�see be f ir�e�� ,UOO.Op for t��vir�� permitted �a r��.�is�r�ce, s�i�i fir�e to k�e st�y�d fnr a perio�9 af two years ar� con,�itior� that he permit r�o sam� ar simil�r vio- latinr� nf ttie r��is�r�ce 13ws. I�ate�� tFiis Gth �i�y of �uly , 1�8£3. l,/.,�� . _ . . . _____�..._..___ C�rol Cir3nt Admir�istrative L3w Ju��e T'��rsi��r�t tn ch�pter 1�l.G2, a copy of tt�� eci�ior� ar�� order ir� the ak�ove-er�title� case shall t�e �erved upar� e�ct� p�rty or the party' s represer�tative 3r�d the a��mir•�istrative law j��rJge Gy t irst class n»il . � r��r�artr-,�tr�ur� T�is i� :� lic��or lic�r��e rc-�var.:�tior� prarEe��ir�� rr��r 5er_•tic�r�r. 31U :ar�d 409 of tt�i� St. T��.�1 l.��isl.�tiv� Go��e. As p�r�t �f i�ixs c:a�e, tt�c� lic�r�5ec� m�� :� v:�riety af prPlimir��ry mU•tior�sW ��il.��re to 5tate a Cl�im T.h� licer�s�� move<a tc� dismiss, :arg��ir�g tti�t t�e 311e��.�tior��:� ir� tttie �lcati.c� of' I-I�•�rir�� o r�c�1: f�ll. wi.tFii.n �Chca �x�cr�.�r��:i�s 1ar liy��or licer�s� r�vac•�tic�r� se� fnrt�} ir� tn� 5t. k��l Le��i�3la�tivc.� l:o�� . The Gity respcar��s th�t its �cti.ar�s �r� r•�ot li.mited ktiy th�.a or��ir�.3r�ces ii-� •�ny evt�r�t! .�r�� tt�a�t it tia�.� ir�ti�rer�t pc�w�r �tra reval.e 3 liquur licer•��e fc�r mi!>car•��rct ir•� t�ye a��r�tior� af � 1 '1t�UOC t��.��ine�<.a . 'Tiye City cites ifa•.;k.uvi�t.s v . t',i�tY._af._.:�t_. F�:��7:., ..........._.._.........._.._..._........_......._.._. 1G N. W. ud 7�`r (P�tinr�. lt.194) , �:�k�cs v . GitY._�?�.._�i.r�r�e:�..P.n_:l.is., J.':.'U ..._......_................_........._.... �! .W . 'w�� #3 71 (M i r�n . 1{�C�:3) , •3 r�� 1;1 y m.;�,r��a U r�._Y.�...C.a t}'.._i�f._.��t_..._I'��.!�.l.p 3;�'`••' �l.W. 2�� ;32�! Sf•Si.r��n. 1983) , tcr �.uAPux•t it� �r�um�r�t .l'tevacaticri-�<.� ir� tho�e c:��es , ti�wpver ,were �:��r�� p��r�u�ar�t •ta r_ity ��'1:3Y"L' G'T• provi�inns, ar��ir�:ar•�c�s or st•�t�ate� , T�r� c3�e=_. �Jra r�c�t �t�r�� f�r_x• tt7� prc�pa:ai�tior� tti.�t ' L"t]t�e :a�atti�rity vest�� ir� m��r�irip��:Lati��: to p��•s ar� 1i.c�n��. . . r�vacatir�r� is r��ut 1ir�tite�J k�v tt�t� or�Jir��r��c�<.:> the� ni.�y ctioo�� ta �dnpt . ' City' � L-�rief �•t `.?. Tii� privilPg�s �i' a licer�se� 3rn suk�j�ct tn s��ct�i cc�r��i.ticar�s, i.r�c].�..i��ir•�� tt�� ca�.�.=_�� ar�d m•3r�r�er t�f rev�c3tior� , �s thP le��i�lativc� t�o��y m�y sEe i'i�k to impo��.f�t:��l,r� v.. C:i.t..Y.._of:._SFI:�I;.UP..�e., ?£3 �t .W. �►� G9� (Mir�n� ... .._..._.. .. 1C�9J) . Y��•t :a s1i�F�tly ��iff�+rer�t w:ay, nn� wh� �c:ee�rts :� li.r.er�sp to sel. l i.r�ta:rir.�tir�� liquor :�cc�pts tr�� rivile�� f. so ��ain� �ur�ject ta tt�e t��.ar��r�s impn�e�� apc�r� it by :ar� nr��ir�:�r�c:� �r•�art��:i ir� tne e::ercise of the palic� p�w�r af tFie mu�-�ica.p:�lity �tr�r�tir�� tii� licer�s�.St.�t�, v . F:��s�� £34 �l.W . 2�� :.90, :�)3 (i�i.nr� . �.CJJ�) . ..._.._....................._...._........... T�e qu�stior� {;h�r� ktiecomes wi�ieti��r the ror��+.�ct ��i�scrit�e�:i ir� F�11�g�tior�s Ur�c� thro�a�t� �iv� is ��or,ir.�it�� t�y � �t3t�ai:e ar- 5�. . P3�.�1 or��ir�ar�cn. f�11�q�tic�r� Ur�p ��scrib�s tt�i� ur�l.�w��al s::al� u:t ��r��gs in tt�e p�rk.in� 1at ni th� li.c�r�se�� rEmises t�y :�r� emp7.oyee of the licer�s��. St. I':�ul Le�. Co��e 409.0�#t5) req�.�irns ev�:ry. ]. icer�s�e to m.�ir�t�in or��er ii-� P�i� pl•3r.� af k��.�sir��ss . �t. F•�ul Le�. Code 909. 1�4(:�) provi��es th�t ' C3�1-�y act h�y �r�y c�l�x�k., t�ark.e�per , :�ger�t, s�rv:ant ar eropinyee a.f .�r�y lir_�r�aee t�rer��r��ere ir� viol�ti�r� oi' tt�i� ci-»pter , sh�11. t�E ��m�� tt�i� ��ct of 1;t��e employer �r�� lic�nts�� f <suct� �.L.3C(' . . . ` 5t . P3��1 L��.�. Co�:i� 4�9.OGSc) stat�=_. �Lt��t r�n ]. ic�r�� st�y.�l]. t�e is��e�� t� :�r��yc�r�p ati��c�r th•ar� 3 uer5c�r� af �ac�a�� mnral ch•�r�acter . Tiie�� or�:iir��r�c�ti �rc�vi��F� �s�.atf. a.c:ier�t ��rnun��s ta ��eny tt�e lic�r��e�.�' � matior� to ��ismi.s� A7. 1p�atior� Or�e. F��itiur�.�lly, 5t. 1'�tiJ. Le�. GudE 5cc. 310. UGtt�) (G ) s��pports Alle�•�tit�n [)ne . 'Ctii� �ection p�rmit� 3dvera� �c•tirar�� a�:air�st 3 lic�r��ee if hn 'r�a� viol�te�� any af' tr�� prc�vi�ior�s c�:l ttiGSe cti��tErs. . . ` Secta.an �?:31 .01 nf ti�� Ca�:ie prahik�its r��xs•�r�c�s.F:nowi.r�� nr �rossly r•�e��l.i.��er�t aetivity wi�ict� f:�cilit•3tes the a�le af ��r�� in tt-�e p�3rk.ir�� l�t c�f a l:iquor estat�list�ment c�u].�1 t�� consi.��r�� a r��.�i.s�r�cc.5t. ��.rl L��. Cu��E� S�c . 310 .Of�(t�) t7) .�l�n s�.�p��rts f�lle�j:�tiar� Un�. Sec � 31U.OG(t�) t7) r��rmits ��Jv�rs�+ actir�r� ��ar�st :� 1icPr•�s�e wi��re ' Ct]he �ctivities o£ thc� licer�se� ir� tt�e licer�s�� •�c�tivity crEate or �i�v� crr�:ate�� scrinus ��r��r to t.ri� p��F•�li.c i��:�lth, �af�ty ur welf. ar�, ar th� 11cen��e pH�rfornis nr h:�s p�rforme�� hi�: wr�rk. or �ctivity i.r� �r� ur�safe m�r�r�er . " A11�3�tior� Two �llpg�s ir�terferer�ce with police afficers in the performance of their �ssignment t�y an employ�e of the licensee. The nrdir��nce pravisior�s referre�j to ir� the precedin� twa par��raphs support Alle�atior� Twa, with the exceptian of Sec. y31 .01 , �s ir�terference with police officers co��1�J r�ot fairly t�e cate�ari�ecJ as � 'r�uis�nce. ' Alle�:�tians Tliree ar��j Fo��r alle3e the �ar�l�wf��l employment �nd use t�y tt�e licensee of � mir�ar for se:eu�l performar�ces ir� viol�tior� of M_ir�n_., St�t_., G17 .�4G. St . Haul Le�is. L'o��e 310.OG(7) permits 3dverse actior� ��air�st � licer�see if his 3Ct1V1t1�5 'create or ��ve r.re�te�� 3 serious ��r�ger to t�e p��blir he3lth, s�fety or welf�re. . . ' St. ��ul Le3is. Code 310.OG(t�> (�7) pErmit� a��verse 3etior� if the licensee 'h�s showr� L�y pa�t miscond�.act. . .that Che] is nat a persor� of the gao�� moral char3rter nr fitr�es5 req��ired to er��a�e' zn the la.cer�5e� �ctivity. aec. 314.OG(t�) (G> .�lsn s��ppart� All.e3atiar�s Three �r��l Fnur , permittir�� a��v�+rse �ction :��in�t a licer�see if he 'h�s vial.�ted �ny of the provisions of ti�ese ch�pters, vr o� ar�y 5't3't�JtP� ordir��nce or re�Ul�tion reasnr��bly rel3te�� to the lirer�se�J �ctivity. . . ' St. F�aul Le�. Co�ie 5ec. 409, howev�r , daes not support Alle3atiar�s Three 3r�� Fo��r . 5ec. 40�7. 19 ma�.e� � �. icer�see respar�sit�le for the �ct� of his employees. 5ec. 40�7.08(4) st.ates tti.�t ' Cr��o person ur�der eigiiteer� years a.f 3�e m3y be employed ir� a pl�ce where ir�to:<ic�tir�� liquor is sold for cor�sumption an th� premises . 'Yremisea af licer�se' is �efine�j ir� Spc. QO�.OG(e) �s 'the compact and car�ti�uous space r�amed i.n �urh lirer�se. . . ' All lirer�ses �r3r�te�� m��st sQt fnrth 'the ex3ct lnc�tior� within the bUildir�3 struct�re' where liquor s�les may t�e made. 5ec. 4q9.OG(e) . A ypeci�l p�rmit is req�aire�� for s�les c�f liquor ir� areas outside the struct��re cnntainir�� tt�e licensed premises . 5ec. 409.OG(e) . TFie Belmor�t I�ar liq��qr license pl�re nf t��sir�ess is G15 Ur�iversity Ave. Gity Ex. G. The Cxty License Ir�spector testifie�� th�t there �re five estat�lishmer�ts where liquor is sol� on ane side of 3 31e]55 wir��aw 3r�� r�u�� ar�cin� OCCUi`5 behind tt�e win�jow; that �r� entertair�mer�t licer�se, distinct from a liq��or licer�se, i� issue�� for tt�e �j�r�cir�9 :�ctivities . Ir� this C35E�� ti�P ��ncir�� activities accur at a st��io witt� � sep�r�te �ddress ar�ci entr3nce fram •ti�e license�J premises .See 3.lso City Attorney ......._...._.........._... (]pir�ior� Letter d�te�� Sept. 14, 1�87, cited in the li.cer�see' s prehe3rin� motian brief. Co�e 5ec. 409.OG�e) , ti�e Opir�ior� letter 3nrJ the testimony s��e�t that 5ec. 409.U8(Q) is nnt applicak�le tn this c�se, t�eca��se there is r�a ir�dication that � persan under ei3hteen ye3rs o� a�e w3s employe�� on the license�� premises. Simil�rly, Sec. 409.09 prahi.bits certain se:<ual ronduct "on 1 icense�� pY`411115@5 . . . ' Since th�+ �lle�e�� se:•:u�l �ctivities did not t3�e place ar� the licensed premises, this sectior� canr�ot be use� .�s � k�asis for adverse actian agair�st t�p 1 icer�see. Alle�.�tion �ive alle�es'the occ��rrer�ce of �cts af salicit3tior� for prastitutian, prostit��tian 3nd prostit��tiar�-rel�te� activities in the licer�sed premise� , on t�e p�rkin� lat t�ehir�� the licer�se�� premises, �nrJ ir� the imn�e��iately ad jacer�t �are3, al l or whict� constit��te ( 1 ) a n�ais3nce, ar�d (2) cre3te or have cre3te�� 3 seria��s �j.3r��er to the p��blir health, safety an�l welfare. . . ' The 5t. I�3u1 Legis. Code 4Q8.08(G> pravi��e� that: •No licer�see �hall . . . permit the licer�sed premises or 3r�y roam in the same or any �djoir�ir�� t��il�Jir�� or ar�y ��jaini.ng building �Jirectly un��er his cantrol t� be U52�� a resart for pra�titutes. . . ' This Co��e provision requires �jer�i�l af tt�e Matior� ta I�isniiss Alle93tion �ive, �s dves 5ec. 310.OG(G) ,provi+�ir�� tt��t ti�e Co�ancil m�y t3k.e .��jverse artinn if th� ' licer�seP. . .iias viol�ted any of the provisior�s of tt�ese ch3pters. . . ' ir�cludir�� the n��is3nce provisinr�. 5er, 310.OG(7> pPrmits the C,nur�cil to t��.e �dv�rse �ctior� if the '�ctivities af the licer�see ir� the lic�nse�j �ctivity crP�tP �r �13VP cre.3te�� 3 5@I`lOUS ��ar��r tc� the public �ealth, safety ar welf3re. . . ' �n� 31so support5 A11e3•�tinn Five 3�air�st � hSotion to Gismi.ss . S��t�ject Matter ,Iuris�jictior� Ar� a��mir�istr�tive ��er�cy m�y r�ot ror�si��er ti�e cvr�stitutior��lity af the st�tutES ur��er wr�ich it operates. McF:e,e,_v. Co�rn't.Y.._nf,_Tt,�nise_Y.., ��5 N.W. �� 4G0 (Mir�n. 1�J7G) . .._..._........_.._.._.. Car�sequer�tly, tt�e A��mir�istr3tive L:�w ,�u�J�e will ��eal or�ly witti t�e applic3tinn of st�tutes anr.i prdin.�r�ces ta the licer�see's t�et�avior , without prejudice tv the licer�see in the co��r�e af ju�iici�l review. Stay of �roceer�in�s Ti�ie licensee ar��es that i:f Alle3�tior�s Ur�e thro�� Five �re r�ot dismisaed, the proceedir�3s SI'IOUJ.t� h�ve heer� st�ye�� to a11ow for imme��a.3te �ppe�l , or , in the 3�tPCll•3't1V�� stayerJ per��iir�� the outcome of the criminal trial af David F�r�. Tt�e lirensep cite�� r�c� ��athnrity for ha.5 prnpositior� that i•t cor�stitutes a violatiar� of � licer�see's civil ri�hts for .an A��mir�istr�tive L�w ��d9e ta issue � rpcammen��ation rP3ar��ir�g liquor licer�se sar�ctions while reservir�� cor�stitutian�l issues raiser� by the licer�see far j��dicial determination. Nor is any •3utr�nrity rite�i for the prupositian that a licensee's rights �re vinl�te�� wher� �n A��ma.nistr3tive L3w ��3� is�ues � recammer�datiar� re�.�rdin� liq��or license �ar�ctior�s while rel3te�� crimin3l proree��ir�gs �re per�din9. Tt�e crimir��l procee�jir��s 3r� +�irecte�j a��ir�st Llavid F�r�, who is �n officer ar�d ��irector of �fFL, Inc. , the lic�r�seholder af the Eselmor�t Cl��t�. Davi�� F•�n 3150 was �r� officer , ��irectvr �nd sale sharet�nlder oP L►�ncin3 Ar�3e].s , Inc. , thro��gt� sprir��, 1�)88. U•3vi�j Fan te�tifie�j for the licer�see �t tttii.s car�tested case h��rir�g, t��t asserte�j his fi!'t1i amen�jreent privilege per his '�crimir�.�l 13wyer ' s a��vice. T�i� proce�iure is roUr�ter�ar�cer� t�y the c��e 13w, l�a..ter v . ..._.._.._.................... Y�lmi�i,�,r�o., 4�5 U.S. 30B ( 1GJ7G) , altho�.t3h the c3se 13w permi.ts a�verse ir�ferer�ces 33air�st p�rties to civil actior�s wr�en tt��ey ir�vok.e their privilege against self-ir�crimir�atior�. ,It�i��_.. However , the �dmir�istr�tive L�w Ju��e ir� tt�iis c3se choases r�ot to ��raw 3ny ir�ference a��verse to the licer�see b��ed sole'ly ar� his assertior� of his constitutior�al ri�hts. The A�Jmir�istr3tive L�w :J��d3e will r�nt t:�k.e the licer�see's su�gestior� to certify ar�y of the constit��tior�al questior�s raiae�� s important or do��btf��l . Burderi nf Proof The licer�s�e ar3��es ti�at tt�e City m��st prnve it� casP beyor�d � reasor�•�t�le douk�t. 'T.he p3rty prapasi.r�� t�at certain 3ctiar� k�e tak.er� m��st prove the facts .�t iss�e hy a pr�panderar�ce nf the evidence, ur�less tii� s��t�st�ntive l�w provi��es a ��ifferent G��r��r� or st.�n�iarr�. . . ' Mir�r�. k��les 1400.7300t�) . Ttia licer�s�e 3C�UPS that in its i�otire, tt�e City �1leges violatiar�s nf law, and tt�i�t ir� or�ier to prave violations af l�w , d��e pcncess r�q�.�ir�s proaf b�yor�� a �re�sar�3h�le �out�t. The �lotice referer�ces crimir��l statutes �rticul�tin3 prohibite�J k,eliaviors, but the L'ity seek.� s�r�ctaons ��air�st the licensee t��s�d upar� vialatior�s of ordi.r�ar�ces •�ttached to the City's he:�rir�� t,rief. The City nee�Js ta pra��uce a prepon��er3nre of the evi�ler�ce ta est�t�lish these a1le�ations . A��missit�ility nf Hears�y �r�� Pola.ce keports The licensee .ar��es th3t the Gity m��st ��tisfy its L�ur��er•� of proaf 3cr�r��ir�� to ttie Mir�r�esot� R��les af Evi��er�cp �r�� r�ot t�y he�r�ay evidence. Mir�r�. Rules 14.G0 Sut�d. 1 pravides th�t ......._.._......_..._.._......_... reli3hrle he.�rs.�y is a��missible. The licer�see f��rtr�er ar3�aes tr�at palice reparts, ta3ett�er with �11 tec>timony rPla•te�J thereto, th3t h�ve r�nt F�eer� followe�� by a cor�victiar�, must t�e s��ppres5ed �rom evi.der�ce pursuar�t to hi9.r�r�. St.�t. 3GQ.04. Th3t st�t��te prnvi�Jes : 'The followir�g crimir��l recor��s sh�ll r�ot k�e �as��, ��istrit��te�i, ar disseminated t�y the 5t3t� of Mir�nesota, its 3�Lf'1t5 or politic.�1 s��t�d1Vi5].OI'15 in cor�r�ectior� with ar�y applic�tion £or p��k�lic �mplaymer�t r�or ir� cor�r�ectior� with an 3pplic�tion for a licer�se: tl ) Recor��s of �rrest not followed Gy a v�li� canvictiar�. . . ' The �bove st3t��te was p.�5se�i in 1�17Q. In 1979, t�n i�inr�esota Supreme Ca�art decided Peters�ar� v, �fpls..._,City_Caur�cil,, �7'9 N.W. ._.. ._.._.._.._........_.._.. .... 2r� 918, hnl��in3 tiiat �rre�t `reports are ��missik�le in a�:imir�istrative pracee�Jin�s rel�tir�� to licenses. ' I�i_, 3t 9yq. This is COI"1515t�f'It with the policy 3avernin� M_ir�r�_._5tat. 3G4 et . ��'- /�o? � sgq_.,, See Mir�n. Stat. 3G9 .43 5��t�d. 1 . See 3I.50 Minr�. 5t3t. 13.6'w ._.........._..._.._.._.._... ..._.._........_.._....... .........._.._..._..._....._.._... S�.�t��j. �?, r�istin3��ishir�g t,etweer� �rreat �r�� ir�vesti�ative rJ�t�, ar�d m�kir�� ir�.�ctive ir�vesti3�tive data apen to t�e puk�li.c. The Administr�tive L�w Ju��e gives r�o wpi�tit whatsoever to the fact that there m�y have been certain �rrests ir� cor�r�ectian witl� thP E�elmor�t E��r . It is the f3cts ur��er�yin3 those 3rrests wi�ich may be relev�r�t. The licer�see argues that the police report tCity Ex. 5) , if a��missit�le, shoUl�� be �iven �it�tle wei3ht k�eca��s� it was m3��e fo�rtee�� rJays after the �.�ct, at the request af the City Atturney' s of.f:ice . Thp A��ministr�tive L�w ;J��e concl��j�s tt��t the del�y ir� cre�tir�� the police report dvesn't go to its a��missit�ility, but to �ts wei�ht . �ermis�it�le Witr�esses The licer�sep abserves th�t ir� its �lotice, tt�p City indicated that it may call persons 'wha h3ve a sut�star�ti:�l interest in t�e au�come a� the proceedin�; for e>:�mple, the owr�ers or occ��p�nts af property lacate�� ir� close prn:•:in�ity tc� the licer�se�� premises m�y h3ve s��bstar�ti•�1 a.r�terest in tt�e outcome of the praceedir��s. ' Ti��e licer�se� then ai•��es that tt�� City 31rea�:iy t�as set a �t�r��3r�� tn �jetermir�e wh3t is 3 'subst3r�tial ir�terest' ar�r� what is ' ir� cln�e proximity' y ir� th3t Cu��e Sec. 411 .04(F�) (�) requzres tt��t cor�sent of GOY. of the occup�nts ar�d owners af prop�rty witF�in two hur�rJred feet of tt�e licer��e�� premises m��st car�ser�t t�efore t�e City Co�.�rir_ il wi11 ca��ider iss��ir�3 ar� entert�ir�mer�t license ir� premises s�rbject tn ar� nn-s�le liq��or licen5n. The A��mir�istrative Law 1��d�e re jects th� licer�see's �r��mer�t that testimor�y m��st he limite�� ta thnse per5ons wha awr•� or occupy property witt�ir� twv hun�ired feet di tt�e licer�se�d premises. qr�ly two r�ei�iit�vrtioo�� resi�Je��tS testifie�j; or�e testifie�i �s ta his obs�+rv�tions oP t�e Belmont �t�r p3rking l.ot ar�d envirans; th� ott�pr lives 3Ct055 the str�et frnm the k��r �r�d testified regar�ir�� his ot�servatiar�s Gf t�e s.�me areas. There w:�s r�a cl�im nf s�.�rprise with respect tn t�e cnr�tent o.f this testimor�y and it met the stan�Jard of relev�nce ar�d materiality whict� 3overn 3��missibility. Alleg�tior� One AXl@�3t].011 Ur�e in tt�e Natice nf Ne�rin� alle3es the 'unl3wf��1 sale of �ir��3s ir� the parkir�g lot of the license�� pren�ises by 3n emplayee of the licer�sep o�� or �laa�� November lU, 1987. ' xhe evidence reflects th.at or�e of the Belmont k�ar employees , k3r��y P�pe, PqSS�SSQ�� n�J/or sol�� m�ri j��:�r�� :in the Belmar�t Rar park.ir�g lot an iJovemt�er 10, ].h87, ar�d that Randy F'3p� W35 preser�t wi�er� �r�ather emplayee, Tiet�r� Fax, possesse� mari j�ran� ir� the pai•kir�g lo� ir� J�r�u�ry or Febru�ry, 1988 . k3n��y Pape w3s af.f-�:luty wher� the first ir�ci��ent acc��rre�� t�ut r�evertheless w�s ��5pen��e�� from employment �s a res�it af t�is involvemer�t with ��r��gs. Iiet�r3 Fox simil�rly w:�� fir�ed ar�� susper��ed per Relmant poli.cy 3s a result af her possession of mari j��:�r�a. k�r��y P�pe w�s ��ismissed dUe ta his preser�ce ��rir�g the secor�d r�ru3-rel�ted ir�cident with Dek�ra Fox . The Ar�ministr:�tive L�w J��dge �jis39rees with the City's �r�umer�t th�t the f3cts 'show an attitude or aUtlook or� t�e p�rt of employees wiizch cn��l� or�ly t��ve cnme from m�n�3ement. ' xhere i��s been r�o char�3e ir� t�3r policy with respect to en�p].oyees �r��:l rJr�.i�s, ar��j the policy p�.�r�ishe� the use af ��ru3s ir� 3��jitinr� tu wt�at�ver crimir��l sar�ctinr�s m�y t�e impo�ed an th� user . Ur��+ a.nr�ivi�i��l , R�n�jy Pape, seems to have t�een � cat3lyst ir� the or�l.y dru�-rel3ted incidents cited, and h� w�s fired t�y the Heln�ont. The City further �r3�es that the �t�av� facts shaw th�t tt�e li.censee �Ji�j r�nt m�ir�t3in ar��er ir� t�is pl:�r.e nf t��ir�e5s. Cn��H Sec, 909.08(5) . Tt�� license� argues th�t tttie 'place nf business ' was the li.cer�sed premises, while the 3ctivitie� occ��rre�� in the park.ir�3 lot. Tt�i� ArJmir�istrati.ve Law .I�ar��e fir�d� th:�t 'pl�ce n.f �U511"IB55� is bro��pr thar� ' licer�se�� premises ' � 3r�� ir�clu��es i:Fie p�rkir�� lot. However , the incidents wer� s��fficier,tly isol3te�� ar�� p��nist�e�� so tn3t it r�nr�ot t�e 531�:i that there was �ailure to mair�t�in order with re�ard to dr��3-relate�� •3ctivities. The City �r3Ues that 5ec. 44�7. 19(�) imputes �cti.ons of employees to tt�p licer�set�alder . The licer�see points nUt, hnwever , that vic�rious respor�si.t�ility applies only if the acts of hi5 employees �re 'within thp f�e1�J of their employmer�t' , ' in furtherar�ce af t�is m�ster 's b�asiness' and 'withir� t�e scope of his ereplayment' . 5t��te v. 5ak�elm�r�, �71 N.W. 484, 48G (hiinr�. ..._.._......_...._........_......._.._.._.._.._.._... 1937) . P�pe was off-�luty wt�en he possessed �Jru�s in tt�p Belmant Y�rk.in3 lot. liie City �Ji� r�ot est�t�lish whether I�ebr� F�:r w�s nr�-duty wher� ca�a�ht with m�ri ju.�na. L1eL�r� Fax, whase k�B�'13VlOI• w�s not mentiar�ed in thp �lotic� nf H�arxn�, was emplvye�� by L��ncin3 Ar�g�ls r�t�er th�n MFL, Ir�c. Respandent's E:.. A. Ir� �ny ever�t, Y:�pe' s �r��j �o::'s arts m��5t t�e consi��Pre�1 in cori j��nr_tior•� with ti�e p��r�i=.Ftin�er�t �dministered by the Helmor�t mar�a�ement . The A��mir�zstr3tive L�w ��.��J�e r�oes r�at believe th�t the isolate�J ir�ci��nts ir�volving Pape 3maur�t tv � '��r�ger ta the p�abla.c he.3lth, safety �r�+� welif�re. ' Sec. 314.OGtt�) (7) . xt�e City �r��.ies tt�at tt�e i.nci.dent ir�volves � vialati.or� aP l�ws �avir�� re�son�ble rel�tior�ship tn the license�� •�ctivity. Sec. 31Q.OG(b) tG) Ti��ere is nn evider�ce to ir��iic�te that L•he ��r�a� law5 are 'rel.�te��' to the licer�s�� activity--no evi��er�ce th�t rJr��g activitiea are a particul�r prot�lem at liquar e�.t�t�lishment5, fc�r e.:.3mple. i�or ��oes �'�pe's �ctivity ri.se to the level nf � r�uis�r�ce. Ir� ar�y ever�t, there is r�a vicaria�as li�t�ility pr�visior� 9.n 5t. F�a��l Ler3. Co��e S�r. 310. Alle3�tior� Twa Notice nf He•�rir�� All��tion Twa �11Pges ' Ci7nterf�rer�cp with police officers ir� the`� perfnrmar�ce of their assigr�mer�t by ai-� emplayee nf the licer�see on or �t�out �3r��ry lA, 1988. ' (��3te .amer�ded k�y stipul3tior�) . The evi�ence reflects that �a Belmar•�t employee, :lerry Meir�hafer , ��iri in f3ct y�ll ir�3ppropri.�tely 31: an officer w�o was �o��g �is job ir�v�sti3�tir�g po��ible prastit��tion o��tside the Etelmor7t . Mawever , man.��emer�t � imme��i3tely �pologi^e�l prof��sely far t�tie employee' s car��ct, .�r�� the employee •�polo�i�er� as well . T�is �.in�� of ir�ci�Jent t�•�� r�nt occ��rre�j a�air�. A��ir�, the A�jmiriistrative Law ,I��i�e �ii�agrees with the City' s ar��mer�t th3t hieir�i�ofer 's actinr� shows '3r� 3ttit��de or o��tlaak or� t�e part af employees wt�ich could or�ly� h�ve com� from m�r�.�3emer�t. ' The isol�te�� inci��er�t does r�nt ror�stit��te 3 viol3tion of S�r. 409.08t.�',) , requi.rir�� licensee ta n�aint�i.r� or�Jer in his p1�ce of t�usir�ess. W1ii1e hieir�hofer ' s 3ct m3y be impute�i to th� licer►aee under 5�c. 409. 14(�l , it m��st b� cor�si�ererJ tn�ether wxth the apala�xe� , .3n�i the tot3lity o.f the acts �io not reflect b3d mor31 ci��racter on the p�rt of the licer�see. � Sinre the licer�see clearly did not cor�rJvr�e i�eint�ofer ' s 3cts, hc� c�r�r�ot t�e p��r�isher� �ar�der chapter 310. Ir� f:act, the evider�ce reflects a consi�tent patterr� af coaper3tiar� with the pnlice, ir�sasm��ch �s the police p�trol thp k�elmor�t rp3ularly without ir�terferer�ce, �r�d the L�elmor�t mana�emer�t is respor�sive to palice C@Q�JP_StS. A11e�ations Thi•ee ar�d �our �lotice of I-le�rir�� A1leg�tion Three ir��ir.ates the ' ��r�lawf�.al empinyment t�y the licer�see of a minor for � �exu�l perform�r�ce ir� vialation of i�ir�r�esat� 5t�t��tes, sectinr� G17 .�4G or� or at�GUt Fet�r�.�ary w, 19B8. ' Alle�atior� L-'our ir��ic�tes that the licer�se� permitte�j '.� mir�or to er��.�ge in � �ex��al perfvrm.3r�re ir� viol�tior� of Minr�esot� Statut�s, s�ctior� G1.7.�4G, on or at�out February 2, 1988, or� or visit:�le ir� the licer�se�� premises. ' The evi�jer�ce reflects th�t T.U.i�. was 1� years old when hire�j h�y U3r�car�� Ar�gel�. 5t�� f i lle�� a��t r�o employ�mer�t �pplicatior�. 5t�ie lied at�out her 3�e. Si�e testified that st�� w�s as�.e�j t,y N�r�cy Osterm.3n whether sh� �•�� her ider�tific�tior� car�i ar�� replie��, 'No. ' Accor��in9 to T.D.M. , N�ncy qstern�ar� respon��e� t�y s�ying, 'M�k.e s��re yo�� Drin� i�t ir� k�E'C��JSPy ou�a r�ee�J it with yo� at all tim�s. ' Or� tt��e other i�3r�r�, N�r�cy Osterm�r� testifie�� tt��t T.U.�i. h�� 3 birth certi:firation wher� iiire� or� �lov. 14, 19�38. �Ss. Ostermar�'s testin�or�y lacics credibility in cert3ir� p3rtic�alars. For er.�mple, M5. Osterm•�r� ir�si�t5 th�t T.D.�{. w.�s r�ot er��3i�� ir� t�e :�ctivities �lescribe�� by the p�lice or� tf�e nig�t of T. l�.t�. 's 3rrest. No birth CPTt1�1C3t�' w.3s recovered ar ir�traduce�� ir� evi�lence. �levertheless, T.D.M. w�s r�o•t a very cre��a.t�.le witr�e�s, ei•tt�er . It is cErt3a.r� tt�.�t she lie� to his. Ost�rm�r� ak�o��t t�er a3� ir� nrder to �et 3 �i�r�cir�� jot,, 3f'I�j th�t s�re lie�� to ti�e 'Ur�t�.3r�1;' to 3et �r� I.U. It �lsu is ur�cert3ir� how seriously she toak the ir�st3r�t pracee�lir��s . Fcrr ex3mple, shP g3ve � f��r�r�y �rir� when teatifyin� that the re�san she w.�a dar�cin� �r�d gave 3 f.a].se ider�tificatiar� wa5 t�era��se �he �ji��' t w3r�t to t�e •a prostit��te. Her ��pmear�or s��este�� t��t th� testimony w�s � lie. The A�Jministrative l.aw ��Jge re jects Ms. O�term•�r�' s testimony 3nd , �'�- /�� ,, rancludes that Ms. Usterman ask.ed for identi£ic�tian, requeste�i tt��•t i�Jer�tific:�tior� t�e produce�� ir� t�ie f��t��re, k,�at �Jidr7't ir�sist ��pan it at the time oP auditior�, relyir�3 ir�ste3d on T.D.hi. ' s lie. The A�Jmir�istrative Law 1��d�e daesr�'t �ccept t��rter��Jer Wi11i�m Papes' testimor�y tti:�t he chpcice�j T.D.M. 's i�Jentific�tian every ni�ht wher� she w�rke�i. Ne ��i�ir�' t �r�aw ah�t form of ider�tifiratior� �he ��sed, �nr� didr�' t reco�ni�e the 'Ur�k��r�k. ' c�r��, st�tin� tt�iat it w�s nat a very reliat�le source af i��entificatian. �13hCy Osterm�r� te�tifie�� that shp tho��gh�t tr�is testimor�y was ir�correct, �nr� that the paliry of ct�eckir�� r.i�r•�cers' :[.U. �very time they ��nce�� w�s in5tit��te�j �fter t�e T.D.i�. ir�ci�i�r�t. Mir�r�. Stat. G17.�4G S��t�d. 5 provid�5 th.at it is 'ur�lawf��l for 3 ..._.._.._.._.._..._.._.._.._...... persor� to . . .employ , . .or permit . . .3 minor to en�age ir� . , .�ny �ex��al performar�ce i.f the persor� Mr�aws or h�s re�sar� to k.now tt�.�t tt�e cor��ct ir�ter��e�� is a sPxu•�1 perfnrmance. ' T. I�.i�. , � mir�or ,er��:�ge�� ir� � sex�a31 perform�r�ce ar� �et�. 2, 1.988. TFie licensee ar�j��es that 'the licensee �Jid not employ CT .U.M. ] ; Dancir�3 An�els, Ir�c. ' r�i.��. This arg�ament appears to t�p 3 techr�ic3l. ity, t��t correct. MFL an�� C�•3r�cir�3 Ar�gels e�ch act thro��3h the s�me 3�Er�t, L�3vi�J Fan. Wr�er� T.L�.M. was hire�i, Ltavi.�j ' E�r� w�s :�cti.r�3 3s 3�er�t for I��ncir�3 Ar�gels. Wher� T . Li.hf. was ��r�cir��, however , Ll�vid F�n w�s .�eting a� �9ent for the Relmor•�t . Assumir�g for t�e 53N.P af 3r��.tment th:�t thp licensee hireri T.L�.M. , the question t�ecomes whett�er he ir�tended ta hire a minar . 'Che licer��ee argues tti�t the City h�� failed ta 5ust.3ir� its t�ur�ier� of proving th�t the licensee ir�ten�ied to t�ire a minor . Minr�,. 5t�t_. G17.24G S��t��. 5 provide5 th3t � mist�ke �s to tt�e minor 's a9e is r�ot .� defer�se. Bver� if the st�tute did r�ot impose '�bsol��te liability' ir� re3:�r�j to age, the Admir�istr�tive L�w ludge agrees with the Ci.ty's ar�umer�t that a reasonaL�le persor� would h3ve ir�q��ired f��rther �t+o��t T.D.M. 's ��e, �jespite her mature �ppe�r3r�ce. However , the evidence �oes r�ot s��pport a ror�clu�ion th�t Uavi�J F3r� employe�� T.D.t�. for thp p��rpn�e nf er�3a��.��g ir� a se;eual performance. He w�s preser�t at �er 3uditior�; b��t the recor�� ioes not reflect wh�t she w3s ask.e�� to �jo there, nr on ti��e 'd�r�ce floor . ' She didn't converse with Fan at the .��jitior�. T .D.M. testxfie�J th�t .� ' 13��y showe�� her wh.3t ta r�a �n�J Cshe] ��id it' �t the a��ditior�, t��t sr�e also testifie� ti��t they '�ji��r�' t tell C�er] how to ��nce. ' Wh-3t she .3ct�a•�lly r�ir� rJ�arir�� the audition is not reflecte�j in the recorr�. WhPther ttie licer�see permitte�� T.U.M. , � mir�or , to E�fl!�•3'3e ir� � sex��31 perforn»r�ce iG .� .differer�t issue. There is 3 prepon�jerance o.f evi��ence reflectin� th•3t the licer�see, thrau9h its a3ents, �ji+� p�rmit the minor to en3�ge in � se;<ual per.fnrmar�ce. The A��mir�istr:�tive L3w J��i3e C31'� r�C3W ir�ferer�ces from circ��mstar�ti�l evidence. Ti�e Reln�or�t w�s 5t3P�E'{) accor��in3 to need, �n�j som� emplaype m��st h�ve r�ntire�J th�t T .Ii.hi. was en3�3in� i.n 3 se:,��1 perfor�m�r�ce on the ni�ht in q��estion. Clne employee s��ppose�jly was checY,ir�3 ��ancers' I.D. 's . T.D.M. er�g�3e�J ir� ti�ree separate se.:u�l performar�ces ar� that r�i�ht. Th� 1 icensee cor�5eq��er�tly viol:�ted a st3tute reasor��bly relate�i tca the licer�sed �ctivity. It srtic��ld t�e r�ate�� th:�t there 3re rJeficier�ries ir� the evi��er�ce. There is no �vi�jer�re tt��t T.U.M. er��.3�e�� ir� •3 se.:��1 perfarm.�nce oth�r tF13f1 or� Fet�. �, 1988. Iir�r� enforcemer�t a�er�ts typically m•3k.e two or threp t�uys tn 3et t�y tt�►e entr�pmen•t defer�se �r�� maNe their c�s� with sufficier�t cert.�inty ta w3rr�r�t ac�tir�� ir� a pur�ita.ve f�stiinn; b��t the st.�r��r�j repetitiv� ot�serv3tior�s were r�ot m��je t�ere. This is r�ot 3 situatior� where she w3s aG��rve�� er��ir�9 ir� 3 se:•;��1 perfnrmar�ce, m3na�emer�t w�s 3iver� r�otice, ar�d sh� w�s obaerved en3a3i.n� ir� the s�me �c�tivitie� a3air�. It wnul�j h�ve t�e�r� e3sy for �r� o.fficer ta ga Up to a t�arter�der t�etweer� dance perform3nces ar�d �sk, 'Did you a�e th�t? ' nr otherwise est•�t�lxs� k.r�ow1E��e to 3 certair�ty . It is r�at 3 51tU�'tiQil where she testified th�t she wa� tol�� to d�nce in � prnhibite� w�y, ar even that mar�agem�nt w�tcherJ her dance ir� � prot�ik�ited w�y. Wher� asY.ed if U�vid Fan s3w her " d.�r�cing' (wiiich m3y ar m:�y nnt h3ve mear�t cor�duct prnhibite� t�y statute> , T.D.M. respar�ded tti�t Mr . Fan sits in the h�r , but shp di��r�'t Icr�aw if he watct�e�j 1ier . 5�e f��rther te�tifie� th3t Liavi�� F�n r�ever tall,e�i to �er at�out dar�cir��, j��st tal�l her to get nut of tlie b.�r wher� she er�tere�j fur pop :�r��j ca�3rett�s. The Agreemc�nt with Aancin� An�els does not cor�dow�e activities prahibite�j t�y l�w. 5ec. 310.OG(9) provi�ies th�t adverse activr� may be t.��en agair�st a licer�se if the ' . . . licensee. . .Pi�s showr� by �35t mi5cor�d��ct. . .that s��c� licer�see. . . is not a persar� of the gcao�� moral char3cter or fitr�ess req��ire�� to er��3e in a license�� activity, t�usir�ess or profes�ion. ' Tt�e evid�r�c� witi� respect tr� T .Ii.M. m•3y reflect or� D�vi�j F.3r�' s mor�l ct�-3racter-�-or it m3y reflect t�is poor 3t�ility to m�r�a�e a t�USir��s . �'h� L'ity notes th�t tt�er� is 3r� ir�ci��er�t regar�ir�3 .�r�nther ��r�r�er3ge employee whici� wa� not raised ir� the �lotice of H��rir�9. This inci��er�t ir�vnlve�� si::teer�-ye�r-nl�� who preser�te�� twa I.Li. ' s that matrt��ed up. Or�e w3s a st:�te I.U. , ar��J one was a capy af 3 birtii certific.3te. W�en tt�� situ.�tinn w.�s ��iscavere�i, no ci�ar3es were t�ro��ht a3�inst the Cluk�. Ti��e evi.�Jer�ce is in5��fficier�t to cor�clu�e th�t the Cl��b w3s c��lp�t�le ir� tt�is ir�ri��cr�t. The Gity does r�ot seriausly .�r3ue that the 3ctivities descrit,e�J in Alleg�taons Three or Fnur 'have rre�te�� 3 serious d.�r�3er to the p��t�lic �ealth, s3fety or welfare. . . ' Sec . 310.OG(b) (7) . Ttie T.D.M. ir�ci��er�t ��oes r�ot rise to th�t level . Alle�atiar� �ive Alleg�tion Fivp in the Notire af He3rir�� .311ege�; 'The ocr��rrence of �cts af solicitatior� far prnstit�.�tior� :�r�d prnstit��tiar�-relate�� artiviti�s ir� tt�e licer�sed pr�mises, or� the p�rNin3 lot behin�� the license�j premise5, 3r�� ir� the imme��a.�tely arJ jacer�t �rea, 311 of which constit�ate t 1 ) � r�uisar�ce, ar�� ( �) cre�te ar have cre3te�j a serio��5 ��•3r��er ta tt�e p��t�lir he.�lth, safety a��d welf3re. 5�ach actinr�s h�v� occurre�� on m3�y occ3sions throu9ho��t 1�J87 ar�r� early ��18. ' The evirJence reflects ti��t there are r�umera�as prastitUtes in the high-crim� .�re� nf SherGUrr�e �r�rJ Ur�iversity; that most of the prostitutes remain on the sidewalk. ar at the er�tr�nce to the B�+lmnnt p�r�.ir�3 lvt . Citi�er�s h�ve L�eer� ��i�t�.arh�e�� k�y �ctivities of prostitutes ir� tt�� parkfn� lot, however . Prostitwtes and pimps ��se the t�3r b��t their illicit �ctivities �re r�ot �vert. In Offirer Lutscher�'s opir�ior�, m�n��emer�t i� not ir�terested ir•� sol�ing t�ese problpms ir� :�r��j 3h�o��t the t�ar . The A��ministr�tive Law Jud�e rh3racteri�es the situ3tior� as ane ir� which b�r mar��en�er�t h�s not impe��e�j the polire ir� their control •3r�d .arrest fUr�ctior�s, k�ut t�as t�een passive ir� its own .�ctiviti.es tc� ��isco��rage prostitutior� (e>:cPptin� thp 1.3st sever�l mor�ti�s ) . 5t. I'�ul Le�i=_. . Code 408.08(G) provides tt�at r�o ' licer��ee sh�ll . . . permit tt�� licer�se�j premises or 3f��+ room ir� L�►� s�m� or �r�y 3d joir�ir�3 t��i ldir�3 or ar�y acl joir�ir�3 t�uil�Jir�3 �irectly ��n�ier t�i� cor�tral to be ��se�� s 3 resort for pro�titutes . . . ' Thc� Belmor�t Gl��t� has k�eer� use�� as 3 resart for prostitutes. Tr» qUestivr� tt�pr� k�ecomes wheti�er t�►e licer�see ' permitte�j' this to i�apper�. Ir� 5;�k�e� �. Mp.l;s_,.,, Su,pra,, offirers were prapositior�e�J ir� the b3r or� ei3ht~qCC35].OI"t5 av�r 3 �alf ye3r perio��, T25�Jitlri'•� ir� cor�victior�s, 3r�d or�e three accasior�s, �+olice witr�esse� ].eavir�� the b3r couples whnse s��Dseq�aer�t 3rrests res��ltp�j ir� canvictior�s for prastitutior�. T�e bar representative testified that he k.r�pw prostit�rtes .freq��r�te�� his estat,lishment 3n�� k.r�ew t�eir i�er�tity, t��t cl3imed that he ha�j r�o knowle�i3e af tt�eir h�vi.n� sulicited. The CoUrt hel��: The mere preser�ce of persor�s of immor�l character t��s been hel� not ta violate a st.at��te pro- hibitir�3 the use of 3 t��r �s � place tv which penple resort for purpases w�ich 3re ir�j��rious tn the put�lic morals, there t�eir�� nothin3 ur�lawf��l ak�nut permittir�� sUCh persor�s to p�tror�ize t�ars �nd restaur�r�ts ir� the absence of proof tt�at ti�ey ccammitte�j viol�tians on the premises. �lor is .3 sir��le act af solicitation er�ou�� to justify � licer�se revor3tian �.�r��Jer 3 st3t��te which prot�ik�its the licer��.ee from pc�rmittir�� the premises to become riisor�jerly. ' ,I��., 3t 878. Tne Gourt cited wit�i approval c3ses statir�� that 'there w3� no safe�i.y an i3r�orar�re ' a.f proper ir�q��ary wo�al�� av.3i1 , " ' t�e wor�� 'permit' implied r�o �ffirm�tive act ar��J r�o inter�t, k�ut mere p�ssivity, or ar� 3t�st3ir�ir�� from prever�tive 3ctior�, ' .�r�rJ CQf'1CZU�2�:� 'th3t where , �s t�ere, the evider�ce �Jiscloses th�t tti� licer�se� kr�ew� prostit��tes were �r�q��er�tir�g his est3t�lishment, �r�� r�umerous cor�victior�s resulte�� frnm 3Ct5 of prnstitution Solicite�� or� his premis�s, he is ch3r3ed with kr�owledge ar suct� • �'� -/�aG �ctivxties �r�� f�arther proof i� r�ot require�J tn sust.�ir� the revocatior�. ' Id. at 879. Ir� tt�is c�se, C]ffirer hieyt�r abserve�� nr�ly or�p pcostitute ir� th� bar , app�rer�tly doir�� r�othing i11e��1 . Officer L�.�tscher� was the or�ly witr�ess w�o testifie�j tt�.�t tt�e t�.3r premises �r� use�� by prostitutes for pickin� up c��ston�ers, t�ut he ��i�i not maNe �r�y arr�sts a.n tt�e t�3r , presum3t�ly Lti@C•]iJSE' r�o �ctivity w3s UL�serve�:i inside wi�ich waul�� provide prat��t�le ra�ase far �n :�rrest. If th� �rtivities of the prostitutes ��i�� nat pravi��e prnb:aL�le c•��5� fv�� r� 3rrest �r�� w�re in�ctive ir�side th� t�ar , it would be ir�apprapri3te to per�•31i:.e the t��r m.�n•3�emer�t for ir�3cti��n. Cf� 53t��s_,v„_..,�City_of_�i�ls..,,, s��.pr;�, 3t 878: ' C I]r� th� �t�ser�ce of �irect evi�J�r�ce that �Jef�r��i�r�t h:�� k.r�awler��e of immor�1 practices or� his premises, ti�e illicit commerce w�� i.r��ul.qed ir�� sa,_o.,p�r�ly, ar��j far s��ch � ler��th of time th�t �Jefer��r�t m��st ti�ve �.nowr� �is hotel was heir�� used �s a house af ill f�me. ' ( nmpt��sis a�j�je�j) . It is r�ot a� if prostit��tes Sh�aut their invitatior�s ta custamers. _ Sec. 310.OG(7) of t�E Code provi��es far :�dverse 3ction a�air�st 3 licer�se� af the '�ctivitie5 of tti� licensep ir� th� licer�sed activity create or have rreate�J 3 5GI`1Q�J5 dar��er ta tt�e p��blic he31t��, s�fety or welfarp. . . ' While the prostit��tior� activities �iescrik�ed are ot,noxiaus, tt�ey do r�ot rise to the level of 's�rin��s ��ar��r . ' �izr�r�.._5t;�t_.,, G09.7g defir�es th�t :� �put�lic nuis�r�ce occurs w h e n ._.~. ' . . .t�y ar� �ct or failure t� perform a leg�l �i��ty C� persor�] ir�ter�tior�.311y . . . t 1 ) . . . pern�its � cor�- ditior� wr�ic� ur�reason�t�ly. . .er��j�r�3ers the s�.fety, health, mor�ls, comfart, nr repo�e, of �r�y cor�si�Jer�t�le r�Umk�er of inemk�ers of the �ut�lic. . . " The prostit��tinr� :�ctivities ��e�cribe�i ir� this c35e er��.3r��ere� citizer�s' romfort or repose. Minr�. St�t. G09.79 i5 re3son�t�ly ..._......_....._......_......_... rc�late�� to tt�� licer��e�� •�ctivity. St,. P.a��l Le�is . Cade 310.OG(t�) (G) . So is Mir�n. St�t. 5G1 .01 , which ��efir�es a r�uis•3r�ce ..._.._.._.._.._...w._....._... as ' C�nyt�iing] wtiich is . . . ir��je�cer�t or offer�sive to the ser�ses, or an ot�s�r��ctiar� ta trtie free use of praperty� so �s tn ir�terfere with tlie romfnrt:3L�1� er�jnymer�t of life or property. . . ' The City t�as r�ot prove�J tt��t tt�e �elmont is the saurce o� prostit��tion in t�e �re.�, nor does a.t �►ave to. The 51t�J•3t7.Ofl �t the Clut� car�stitutes �a r�ei3hbarhno� nuisar�ce. There h�ve beer� rec�nt e�fnrts to correct the prot�lem by the Relmar�t mana�emer�t. ao lon� �s the currer�t level af �jiliger�ce is m3ir�tair�e�j, r�o p�anitive action in the form af revoc3txnr� or ��.�spension of the Aelmont licen�es r�ee�� be taker�. Howevpr , corrQCtive efforts k�y the Helmor�t m�r�3�ement m3y t�e merely •� response ta thi5 rar�tested c�se proceedin�. Additionally, the f3ct th�t the Eselmor�t has t:�k.en step5 recer�tly to car�trol the r1U153�1CB doesr�'t erase the fact that � r��is�r�ce h�s accUrred. A rerommer��:atinr� fnr actinn is m��e to s�stain these cnrrective 3ctiviti�+s which seem to F�e effective in re��ci.n� prastit��tior�-relate�j 3rtivities ir� t�e Belmot-�t C1��1� :an� its p3rkir�� lot. Currer�t efforts to ti.ghter� ��p the licer�sir�g Grdir�ar�ces alsr.y �re lau�Jat�le. Same q��estior�s t1�at mi�ht be a��ressed ir�cl�a��e the follawir��: Wt�at laws are 're3sanat�ly relate�i' to the licer�se�� activity? Will the vialation o� �ny crimin.31 l�w imp.3ct on � violator 's licer�se? Are or�ly. liquar l..�w vialatior�s 'reasanat�ly r�l�te��' to the licer�se�� 3r.tivity? If those �ir3ftir�� the ordir�ar�ces have same specific laws ir� mir��i, wt�y not list the er:�mples? Wti3t cnr�stitutes a 'serxous' d3n�er to the p�.�t�lic healti�, safety, or welf:�re? W�.�t t�ehaviors evi�Jer�ce a lack o� ' �aa�� mor�l ct�:�r�cter '? Ti�hter ar�ji��ances will provi��e more �ui�iar�ce ta t�ar awr�ers. c� � ' � �'": . `�' REC�IVED ; STATE OF MINNESOTA ��p �� $8 IN C�URT OF APPEALS CITY C�.ERK ------------------------------------ ) MFL, Inc. , a Minnesota Corporation, ) PETITION FOR WRIT d/b/a The Belmont Club, and ) OF CERTIORARI David S.F. Fan, ) ) COURT OF APPEALS Petitioners, ) NUMBER: C�/ ��_� ya � ) `� vs. ) ) OFFICE OF ADMINISTRATIVE City of Saint Paul , a Minnesota ) HEARINGS NUMBER: municipal corporation, and the ) City-88-021-CG City Council, consisting of James ) 53-2101-2427-G Scheibel , President, Kiki Sonnen, ) Bob Long, Tom Dimond, Roger Goswitz , ) DATE OF MAILING Bill Wilson and Janice Rettman, ) NOTICE OF DECISION: ) September 8, 1988 Respondents. ) ) ------------------------------------ T0: THE COURT OF APPEALS OF THE STATE OF MINNESOTA The above-named petitioners hereby petition the Court of Appeals for a Writ of Certiorari to review a resolution of the City Council of St. Paul to revoke petitoners' on-sale intoxicating liquor, Sunday on-sale, and restaurant licenses (as well as the entertainment license to the extent it is applicable or effeetive in the premises licensed for sale of intoxicating liquor) , eommencing at 12: 01 A.M. on the day following publication (on information and belief, the resolution is to be published on September 17, 1988) . This resolution violates petitioners� constitutional rights to freedom of expression, due process and equal proteetion. The resolution was made in excess of the City Council� s statutory authority and ,jurisdiction. The resolution was not made in eonformity with the provisions of Minnesota Statutes §§1�.60, Y . . - . ��- �� . , 14.62, 364.01-. 10, 609.74 or 617.246 and it was not made in conformity with the provisions of Seetions 231 .01 , 310.05, . 310.06(b) (6) , 310 .06(b) (7) , 310.06(b) (9) or 409.08(6) of the Saint Paul Legislative Code. The resolution is unwarranted by the evidenee. The resolution is arbitrary and capricious. A copy of the resolution, the Findings of Faet , Conclusions and Recommendation by the Administrative Law Judge and petitioners� statement of the case are attaehed hereto. DATED: September 12, 19$$ COCHRANE & BRESNAHAN, P.A. By - JA ES . BRESNAHAN Atto ney I .D. #11307 MARY F. SEYMOUR Attorney I .D. ��99454 24 East Fourth Street � pFF�CECOV�S St. Paul , MN 55101 AppE1,lATE (612) 298-1950 2 �`�`3� C�p 1 ATTORNEYS FOR PETITIONERS ,F 11.'�� -2- A ' + ��M� STATE OF MINNESOTA �+�P � � 1�88 . IN COURT OF APPEALS CITY CLERK ------------------------------------ ) MFL, Inc. , a Minnesota Corporation, ) STATEMENT OF THE d/b/a The Belmont Club, and ) CASE OF PETITIONERS David S.F. Fan, ) ) COURT OF APPEALS Petitioners, ) NUMBER: C S/— ��- /�a� ) vs. ) ) OFFICE OF ADMINISTRATIVE City of Saint Paul, a Minnesota ) HEARINGS NUMBER: municipal corporation, and the ) City-88-021-CG City Council , consisting of James ) 53-2101-2427-G Scheibel , President, _Kiki Sonnen, ) Bob Long, Tom Dimond, Roger Goswitz, ) DATE OF MAILING Bill Wilson and Janice Rettman, ) NOTICE OF DECISION: ) September 8, 1988 Respondents. ) ) ------------------------------------ 1 . Court or agency of case origination and name of '�udge or hearing officer who presided: City Council of the City of Saint Paul from the State of Minnesota Office of Administrative Hearings, Ms. Carol Grant, _ _ Administrative _Law Judge_. . _ . _ 2. Jurisdictional statement: Review is sought, pursuant to writ of certiorari (Minnesota Statutes §§1�4.63, 1�.6u and Rules 115.01-.06 of the Minnesota Rules of Civil Appellate Procedure) , of a resolution passed by the City Couneil of Saint Paul which revokes petitioners' on-sale intoxicating liquor, Sunday on-sale and restaurant licenses (as well as the entertainment license to the extent it is applicable or effeetive in the premises licensed for sale of intoxicating liquor) , _commencing at 12: Ot a.m. on the � � • � � � ��.� /�� day following publication (on information and belief, publication is to be on September 17, 1988) . � 3. State type of litigation and designate to an� statutes at issue: Municipal , Constitutional , Criminal Sections 1�. 60, 14. 62, 36�.01-. 10, 609.7�, 617.2�6 of the Minnesota Statutes Seetions 231 .01 , 310.05, 310.06(b) (6) , 310.06(b) (7) , 310.06(b) (9) and 409.08(6) of the Saint Paul Legislative Code and Council Resolution 88-u43 (effective April 9 , 1988) The First and Fourteenth Amendments to the United States Constitution Article 1 , Sections 2, 3 and 7 of the Minnesota Constitution - - �4. Brief des�ription of claims,- defenses , -issues - - litigated and result below: On February 8, 1988, police arrested T.D.M. , a minor, at �l90 North Dale, on a juvenile warrant. Fourteen days later, on February 22, 1988, Officer Rogers, at the request of the City Attorneys' Office, made a supplemental report which allegedly deseribed the content of T.D.M. ' s dancing performance which could be viewed from the Belmont Club, petitioners' bar and restaurant, located at 615 University Avenue. Shortly thereafter, a felony complaint was issued and_ Petitioner_ Ean was arrested for _ allegedly violating Minnesata Statutes §617.2�46(2) .- - - - On May 3, . 1988 the City Council for Saint Paul, through its attorneys , notified petitioner Fan of a hearing to consider adverse action on the basis of: � 1 . The unlawful sale of drugs in the parking lot of - the licensed premises by an employee of the licensee on or about November 10, 1987. 2. Interference with police officers in the performance of their assignment by an employee of the licensee on or about January 23, 1988. 3. The unlawful employment by the licensee of a minor for sexual performances in violation of Minnesota Statutes, section 617.246 on or about February 2, 1988. -2- 4. Permitting a minor to engage in a sexual performanee in violation of Minnesota Statutes, section 617.2�6, on or about February 2, 1988, on or visible in , : the licensed premises. 5. The occurrence of acts of solieitation for prostitution, propostitution and prostitution-related in the licensed premises, on the parking lot behind the licensed premises, and in the immediately adjacent area, all of which constitute ( 1 ) a nuisance, and (2) create or have created a serious danger to the public health, safety and welfare. Such actions have occurred on many occasions throughout 1987 and early 1988• � At the hearing that was held before Administrative Law Judge Carol Grant on May 2� and 25, 1988, petitioners not only presented factual evidence in defense to the above-listed allegations, petitioners also argued, inter alia, that: (a) the Administrative Law Judge and the City Council lacked subjeet matter ,jurisdiction to determine whether the dancing performance was outside of the realm of expression protected by the First and Fourteenth Amendments to the United States Constitution and Artiele 9 , Section 3 of the Minnesota Constitution; (b) adverse aetion on the basis of lack of moral character and fitness is a violation of the -petitioners' constitutional rights to due - - � process and freedom of expression in that it is void for vagueness, is substantially overbroad, constitutes an unconstitutional prior restraint, is based upon an irrebuttable presumption that alleged past abuses of freedom of expression will oceur in the future, and the minimum proeedural safeguards were not followed; (c) adverse action on the basis of a violation of Minnesota Statute §617.2�6(2) constitutes an unconstitutional prior restraint for the same reasons; (d) the adverse hearing process , under the circumstances of this aetion, in themselves constitute an unconstitutional prior restraint; (e) the City has the burden of establishing, beyond a reasonable _ _ ._ doubt , that petitioners violated Minnesota Statute §6a7.2�6(2) , including the elements of scienter and criminal speech; (f) Officer Roger' s police report was not admissible into evidenee pursuant to Minnesota Statutes §36�+.01-. 10, Rules 803( 6) and (8) of the Minnesota Rules of Evidence and Rule 1�400.7300 of the Rules of the Office of Hearing Examiners; (g) imposition of vicarious liability pursuant- to Sections �09.08(5) or �40g. 1�4( 1 ) of the St. Paul Legislative Code is inappropriate under the evidence presented; and (h) the City failed to satisfy its burden of proving that the licensed premised was used as a resort for prostitutes under �409.08(6) of the Saint Paul Legislative Code, that the activities of the licensee ereated a serious danger to publie health, safety or welfare under Section 310.06(b) (7) , and that the licensee intentionally maintained a public nuisance under Minnesota Statutes 609.74 and Section 231 .01 of the Saint Paul Legislative Code. _3_ - - - By written report dated July 6, 1988 the administrative Law Judge held that it lacked subject matter jurisdiction to determine the constitutionality of the statutes under which it operates, reserved those issues for judicial review, and simply presumed the constitutionality of the statutes and ordinances and applied them to the evidenee presented. The Administrative Law Judge made findings and concluded, inter alia that: 1 . . . . [T]he City has not proved violations of St. Paul Leg. Code sections 3�0.06(b) (6) , 310.06(b) (7) or 409.08(5) due to use of drugs in the Belmont parking lot. 2. . . . [T]he City has not proved violations of St. Paul Leg. Code sections 310.06(b) (6) , 310.06(b) (7) , or �09•08�5) due to interference with the police by a Belmont employee. 3. Dancing Angels, Inc. , not the licensee, employed minor T.D.M. , who lied about her age in order to obtain employment. The City has not sustained its burden of proving that T.D.M. was employed for the purpose of engaging in a sexual performance, but �as not sustained its burden of proving that the licensee permitted a minor to engage in a sexual performance. �. The City has not sustained its burden of proving that the licensee is not of good moral character. 5. The City has not sustained its burden of proving that the licensee permitted the licensed premises to be used as a resort for prostitutes. 6. Until this spring, the licensee permitted a - - condition in the Belmont parking lot which constituted a nuisanee. The parking lot situation currently is acceptable from a publie perspective. ALJ Conclusions 5, 6, 8, 10, 12, 1�. The Administrative Law Judge recommended that the licensee maintain a full-time parking lot attendant to discourage solicitation in the parking lot; that the licensee make nightly checks of the state drivers license identification of any dancer visible in licensed premises and maintain records containing proof of age of such dancers; and a fine of $2,000 for permitting a nuisanee with said fine to be stayed for two years on condition no further sueh violations oceur. -�- On August 11 , 1988, the City Council held a public hearing on Judge Grant' s report. Despite petitioners' objections, without following their own policies and procedures, and without ' establishing a basis in the evidence, the City Council: ( 1 ) adopted, reversed, modified, amended and/or ehanged Judge Grant' s findings; (2) omitted, re�ected and/or reversed Judge Grant' s conclusions; (3) rejected Judge Grant' s recommendations; and (�) voted to put the Council' s proposed findings, conelusions and adverse action into resolution form. Thereafter, petitioners filed exceptions to the proposed findings , conclusions and aetion which included all the issues and arguments listed below. On September 6, 1988, the City Council passed the resolution revoking petitioners' licenses on the basis that: (a) the City satisfied its burden of establishing that the licensee created a nuisanee and serious danger to the health safety or welfare pursuant to Minnesota Statutes 609•?� and - Seetions 310.06(b) (7) and 231 .01 of the Saint Paul Legislative Code; (b) the City satisfied its burden of establishing that the Belmont was used as a resort for prostitutes under Seetion u09.08(6) ; (c) that the City had satisfied its burden of establishing that the petitioners lacked good moral character and fitness pursuant to Section 310.06(b) (9) ; and (d) that the City had satisfied its burden of establishing that petitioners had violated the - - criminal statute, Minnesota Statutes §617.246, thereby providing grounds under Section 310.06(b) (6) of the Saint Paul Legislative Code. The City Council also denied petitioners' written and oral request for a stay of the effectiveness of the resolution until a final decision is obtained upon appeal. 5. Issues Proposed to be raised on appeal: A. Whether the Administrative Law Judge and the City Council lacked subject matter jurisdiction to determine whether the dancing performance was outside of the realm of expression prot�eted by the First and Fourteenth Amendments to the United - State-s�Constitution and Article 1 , Section 3 of the Minnesota Constitution. B. Whether the City Couneil violated petitioners' constitutional right to due process of law, made findings, conclusions and decisions upon unlawful procedure and in excess - of statutory authority and was arbitrary and capricious by: 1 . Failing to conduct a fair and unbiased hearing as required by the Fourteenth Amendment to the United States Constitution, Article 1 , Section 7 of the Minnesota Constitution, Minnesota Statutes §1u.62, and Seetion 310.05��) , as amended, of the Saint Paul Legislative Code and Council Resolution 88-��3 (effeetive April 9, 1988) . _ -5- - ��'- i�a � 2. Providing and admitting prejudicial extraneous ' evidence which was not presented to the administrative law judge in controvention of the Fourteenth Amendment to the United States Constitution, Article 1 , Section 7 of the Minnesota Constitution, Minnesota Statutes §1�4.60(2) , Section 310.05 or 310.05, as amended, of the Saint Paul Legislative Code and Council Resolution 88-�443 (effective April 9, 1988) . 3. Failing to make independent findings, based upon the record, as required by the Fourteenth Amendment to the United States Constitution, Artiele 1 , Section 7 of the Minnesota Constitution, Minnesota Statutes §1�1.62, and Section 310.05 or Section 310.05(c) as amended, of the Saint Paul Legislative Code and Council Resolution 88-�43 (effective April 9, 1988) . �1. Failing to limit the scope of their review of the Administrative Law Judge� s findings and conclusions to whether legal errors were made or whether the decision was clearly erroneous given the evidence presented as required by Council Resolution 88-�4�3 (effective April 9, -1988) . _ - - - - - C. Whether the admission into evidence, and the City Council' s reliance thereon, over petitioners' objeetions, of Officer Rogers� police report (Plaintiff' s Exhibit 5) , which formed the alleged t'factual basis" for Petitioner Fan' s felony arrest, but which had not resulted in a conviction, was clearly erroneous pursuant to Minnesota Statutes §36�+.01-. 10, Section 310.05�8) of the Saint Paul Legislative Code, Rules 803(6) and (8) of the Minnesota Rules of Evidence and Rule 1�00.7300 of the Rules of the Office of Hearing Examiners. D. Whether the Administrative Law Judge and the City Council violated petitioners' constitutional rights to due process of law and freedom of expression, and made findings, conclusions and decisions upon unlawful procedure and a clearly erroneous application of law by: 1 . Failing to require the City to satisfy its burden of proving, beyond a reasonable doubt, that petitioners intended to employ a minor for the purpose of engaging in criminal speech. 2. Failing to require the City to satisfy its burden of proving, beyond a reasonable doubt, that petitioners intended to permit a minor to engage in a performance that was intended as criminal speeeh. -6- E. Whether Section 310.06(b) (9) is void for vagueness � ' for failure to set ascertainable standards and overbroad in violation of the First and Fourteenth Amendment to the United States Constitution and Artiele 1 , Sections 3 and 7 of the Minnesota Constitution. F. Whether the revocation of petitioners' on-sale intoxicating liquor, Sunday on-sale and restaurant licenses (as well as entertainment license to the extent that it is applicable or effective in the premises licensed to sell intoxicating liquor) violates petitioners' constitutional rights to due process of law and freedom of expression by constituting an unconstitutional prior restraint, is based upon the irrebuttal presumption that the alleged past abuse of petitioners' freedom of expression will occur in the future and is imposed without the requisite procedural safeguards. __ G. Whether the revocation of petitioners' licenses is clearly erroneous, in excess of statutory authority, unsupported by the evidence and arbitrary and capricious in that Section 310 of the St. Paul Legislative Code contains no provision under which vicarious liability may be imposed. H. Whether the City Council' s findings, conclusions and decisions are unsupported by substantial evidence in view of the entire record and are abitrary and capricious. I . Whether the City Council has violated petitioners' rights to due process of law and equal protection of the laws and whether the City Council was arbitrary and capricious by targeting the petitioners for adverse action when no adverse aetion has been taken against others who are similarly situated. _ 6. Is transcript required? ._If_so, full or partial transcript? - - - - A full transcript of the hearings before the administrative law �udge and the City Council will be requested. 7. Is oral argument requested? If soZ is argument requested at a location other than that provided in Rule 13�.09 subd. 2? Oral argument is requested at a regular session of the Court in Ramsey County. -7- 8. Are formal briefs necessary? � Yes. 9 . Names, addresses, zip codes and telephone numbers of attorney for petitioner and respondents: For Petitioners: For Respondent: COCHRANE & BRESNAHAN, P.A. Philip Byrne Assistant City Attorney 647 City Hall By St. Paul , Minnesota 55102 JA ES . BRESN N (612) 298-5121 Atty. I.D. No. 11307 MARY F. SEYMOUR Atty. I .D. No. 99�5� 24 East Fourth Street St. Paul , MN 55102 (612) 298-1950 Dated: September 12, 1988 -8- _ _ � • � �� STATE OF MINNESOTA IN COURT OF APPEALS SE� � 2 ��8 ------------------------------------ GITY CL��RK ) MFL, Inc. , a Minnesota Corporation, ) WRIT OF CERTIORARI d/b/a The Belmont Club, and ) David S.F. Fan, ) ) COURT OF APPEALS Petitioners, ) NUMBER: � C�/- � �- lqa � vs. ) ) OFFICE OF ADMINISTRATIVE City of Saint Paul , a Minnesota ) HEARINGS NUMBER: municipal corporation, and the ) City-88-021-CG City Council, consisting of James ) 53-2101-2�27-G Scheibel , President, Kiki Sonnen, ) Bob Long, Tom Dimond, Roger Goswitz, ) DATE OF MAILING Bill Wilson and Janice Rettman, ) NOTICE OF DECISION: ) September 8, 1988 Respondents. ) ) ------------------------------------ T0: THE CITY OF SAINT PAUL AND THE CITY COUNCIL OF SAINT PAUL: You are hereby ordered to return to the Court of Appeals within 30 days from this date the record, exhibits and proceedings in the above-entitled matter so that this Court may review the decision of the City Council of Saint Paul adopt'ed on September 6, 1988 and mailed on the date noted above. Copies of this writ and accompanying petition shall be served forthwith either personally or by mail upon the City of Saint Paul and the City Council of Saint Paul , or its attorney, at: 6�47 City Hall , Saint Paul , Minnesota 55102. Proof of service shall be filed with the elerk of appellate courts. DATED: S�I�—0 0 -W�-3EAT�--O:TSeHiMPERLE Clerk of Appellate Courts . B y: p� � C.�ii-�--- Assistant Clerk � .f... -w"'� RECEIVED ��"1�C� �' STATE OF MINNESOTA IN COURT OF APPEALS �Ep i� 1988 � ------------------------------------ CITY CLERK ' ) MFL, Ine. , a Minnesota Corporation, ) COURT OF APPEALS d/b/a The Belmont Club, and ) NUMBER: L' [�/_ ��-/�� David S.F. Fan, ) . � Petitioners, ) OFFICE OF ADMINISTRATIVE ) HEARINGS NUMBER: vs. ) City-88-021-CG ) 53-2101-2�427-G City of Saint Paul , a Minnesota ) municipal corporation, and the ) City Couneil , eonsisting of James ) DATE OF MAILING Scheibel, President, Kiki Sonnen, ) NOTICE OF DECISION: Bob Long, Tom Dimond, Roger Goswitz, ) September 8, 1988 - - - Bill Wilson and Janice Rettman, ) ) Respondents. ) ) . ------------------------------------ MOTION FOR STAY ON AN EXPEDITED BASIS Petitioners, MFL, Inc. and David S.F. Fan, hereby move this Court for an Order, pursuant to Minnesota Statute §14.65, staying the efPectiveness and enforcement of the revocation of petitioners' on-sale intoxieating liquor, Sunday on-sale, and - - � - - - - - - - -. _ _ restaurant licenses (as well as-the enter-tainment license to the - -- extent_ it is applicable or effeeti.�e in .the �remises licensed for sale of intoxicating liquor) , as ordered by the Saint Paul City Couneil, until 12:01 A.M. on the day following receipt - of -service - - of the final decision of this Court on petitioners' Petition for Writ of Certiorari . In support of this motion, petitioners state the following: 1 . On September 6, 1988, the Saint Paul City Council adopted a resolution revoking petitioners' on-sale intoxicating __ _ liquor, Sunday on-sale, and restaurant licenses (as well as the entertainment license to the extent it is applicable or effective in the premises licensed for sale of intoxicating liquor) , " commeneing at 12: 01 a.m. on the day following publication of the resolution (on information and belief, the resolution is to be published on September 17, 1988) . A copy of the resolution is attached hereto as Exhibit A to the attached Petition for Writ of Certiorari . 2. Petitioners received notice of this resolution on September 9, 1988. 3. In [Petitioner' s] Ob�ections to the City Council' s Proposed Findings, Conclusions and Adverse Action which is dated, filed and served on September 2, 1988, Petitioners requested a stay of-the -effectiveness of the proposed resolution until a � - final decision is obtained in all appeals. Petitioners renewed their motion for a stay before the City Council on Tuesday, September 6, 1988• The City Couneil denied Petitioners' motion for a stay. �. On September 12, 1988, petitoners filed their petition for writ of certiorari with the Minnesota Court of - - - Appeals, claiming that the City Council' s action: ( 1 ) vi-olated petitioners� constitutional rights to freedom of expression, due process and equal protection; (2) was made in excess of the City Couneil' s statutory authority and in excess of its jurisdietion; (3) was not done in conformity with Minnesota Statutes §�1�.60, 1�.62, 36�.01-. 10, 609.7�, and 617.2�6; (4) was not in conformity with Sections 231 .01 , 310.05, 310.06(b) (6) , 310.06(b) (7) , 310.06(b) (9) and 409.08(6) of the Saint Paul Legislative Code; -2- . �5) was unwarranted by the evidence; and (6) is arbitrary and capricious. A copy of the Petition is attaehed as Exhibit I . . : 5. Pursuant to Section 14.65 of the Minnesota Statutes, this court has the authority to order a stay of the enforcement of the resolution revoking petitioners' on-sale intoxicating liquor, Sunday on-sale, and restaurant licenses (as well as the entertainment license to the extent it is applicable or effective in the premises licensed for sale of intoxicating liquor) . 6. Petitioners will suffer immediate, real , substantial and irreparable injury if this court refuses to stay enforement of the resolution suspending their on-sale intoxicating liquor, Sunday on-sale, and restaurant licenses (as well as the entertainment license to the extent is is applicable or effective in the premises licensed for sale of intoxicating liquor) . Not only will they be deprived of their property and livelihood commeneing at 12:01 A.M. September 18, 1988, but all of the employees of the licensee will lose their livelihood as well. 7 . Respondents will suffer no harm if this court stays enforeement of the resolution pending a final decision of this court. 8. There is a strong probability that petitioners will _ succeed on the merits when this court reviews the allegedly unlawful aetions of the City Couneil. g. Staying enforeement of the resolution will not place any administrative burden on this court to supervise the stay. 10. Staying enforcement of the resolution will preserve the status quo. -3- . 11 . Staying enforcement of the resolution will prevent . the unlawful imposition of a prior restraint upon the petitioners ' in violation of petitioners' rights to freedom of expression and due process. 12. Staying enforcement of the resolution is in the public interest. WHEREFORE, for the above-stated reasons, petitioners request this court to stay the revocation of the on-sale intoxicating liquor, Sunday on-sale, and restaurant licenses (as well as the entertainment license to the extent it is applicable or effeetive in the premises licensed for sale of intoxicating liquor) , pending a final decision by this Court. Respectfully submitted, COCHRANE & BRESNAHAN, P.A. By J E . BRESNA N ttorney I .D. #11307 MARY F. SEYMOUR Attorney I .D. 4�99�5� _ _ - 2� East Fourth Street St. Paul , MN 55101 (612) 298-1950 ATTORNEYS FOR PETITIONERS - - Dated: September 12, 1988 - - _1�_ . ' STATE OF MINNESOTA IN COURT OF APPEALS , ' ------------------------------------ ) MFL, Inc. , a Minnesota Corporation, ) PETITION FOR WRIT d/b/a The Belmont Club, and ) OF CERTIORARI David S.F. Fan, ) ) COURT OF APPEALS Petitioners, ) NUMBER: ) vs. ) ) OFFICE OF ADMINISTRATIVE City of Saint Paul , a Minnesota ) HEARINGS NUMBER: municipal corporation, and the ) City-88-021-CG City Council , consisting of James ) 53-2101-2427-G Scheibel , President, Kiki Sonnen, ) Bob Long, Tom Dimond, Roger Goswitz, ) DATE OF MAILING _ _ Bill Wilson and Janice Rettman, ) NOTICE OF DECISION: ) September 8, 1988 Respondents. ) ) ------------------------------------ T0: - THE COURT OF APPEALS OF THE STATE OF MINNESOTA - � - The above-named petitioners hereby petition the Court of Appeals for a Writ of Certiorari to review a resolution of the City Council of St. Paul to revoke petitoners' on-sale intoxicating liquor, Sunday on-sale, and restaurant licenses (as well as the entertainment license to the extent it is applicable or effeetive in the premises-licensed for sale of intoxicating - - liquor) , commencing at 12:0� A.M. on the day following publication (on information and belief, the resolution is to be � published on September 17, 1988) • - This resolution violates petitioners� constitutional rights to freedom of expression, due process and equal protection. The resolution was made in excess of the City Council� s statutory authority and jurisdiction. The resolution was not made in conformity with the provisions of Minnesota Statutes §§1�.60, �x�� . 1�4. 62, 36�4.01-. 10, 609.7� or 617.2�46 and it was not made in . conformity with the provisions of Sections 231 .01 , 310.05, � 310.06(b) (6) , 310.06(b) (7) , 310.06(b) (9) or �109.08(6) of the Saint Paul Legislative Code. The resolution is unwarranted by the evidence. The resolution is arbitrary and capricious. A copy of the resolution, the Findings of Fact, Conclusions and Recommendation by the Administrative Law Judge and petitioners� statement of the case are attached hereto. DATED: September 12, 1988 COCHRANE & BRESNAHAN, P.A. By • JA ES . BRESNAHAN Atto ney I.D. ��11307 - _ _ MARY F. SEYMOUR Attorney I.D. #99�5� 2�4 East Four�h Street St. Paul , MN 55101 (612) 298-1950 ATTORNEYS FOR PETITIONERS -2- - -- - - . . _ � . . . _ . _ �� i�� -c�rr c�cwK � FINANCE (j I TY O F .�. A I NT �A U L Council . �v �OEPAIITMC►rT _wwrow FilO NO. Council Resol�tion : �nted By 'Reterred To Committee: Date Out of Committee By Date RESOLVED, that the On Sale Intoxicating Liquor, Sunday On Sale � Restaurant licenses (as well as the Entertainment license to the extent it is applicable or effective in the premises licensed for sale of intoxicating liquor) , held by MFL, Inc. and Clayton Club, Inc. d/b/a the Belmont Club� for the premises at 615 University Avenue in Saint Paul are hereby revoked, said revocation to be effective at 12:01 A.M. on the day following publication of this Resolution. , This Resolution and the action taken herein is based on the entire record of the proceedings herein, including the pro- ceedings before the Administrative Law �Judge on May 24 and 25, 1988 , the transcript of such proceedings, the documents and exhibits introduced therein, the arguments of counsel for the parties on August 11 , 1988 , and their written exceptions ' and arguments, and upon the deliberations and findings of the Council in open session. In arriving at its decision, the Council adopted in whole or in part the findings of fact of the Administrative Law Judge � together with amendments thereto, as well as certain conclusions, all of which are attached hereto as Council Findings and Conclusions. Other findings or conclusions of the Administra- tive Law Judge are not adopted. FURTHER RESOLVED, that a copy of this Resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and to counsel for the licenseholder, pursuant to Minnesota Statutes 1976, Section 14.62, Subd. 1. . . . - - ��,SO I,t.l �(3v► �- 'OUNCIL MEMBERS y pepartment of: s Nays . Dimond ' Long !n Favor Coawitz Rettman B �n�;� Against Y Sonnen ; � Wilson � Form Approved by City Attorney �pted by Councii: Date -ti[ied Passcd by Council Secretary BY ��'�C �' �� /!& /gg 3y • . Approved by Mayor [or Submission to Council �roved by dAavor. Date �-- ' � I_�,b,� : . , COUNCIL FINDINGS AND CONCLUSIONS ' 1. The Notice of Hearing dated May 3, 1988 was proper in this matter and all procedural requirem ents of law or rule have been fulfilled by the Cit�� 2. An on=sale liquor license is held by MFL, Inc. d/b/a the Belmont Club. MFL, Inc. is owned by an individual named David Fan. Until March 15, 1988, David Fan also owned Dancing Angels, Inc. (City Ex. 7) . Nancy Osterman had been manager of Dancing Angels, Inc., which corporation supplied dancers to a variety of bars in Minnesota and Wisconsin. Ms. Osterman received $250.00 = $360.00 per week salary from the Belmont and another bar to manage the dancers. On March 15, Nancy Osterman, the manager of Dancing Angels, paid David Fan $20.00 and thereby purchased the stock of Dancing Angels , along with $ 15. 00 = $ 18.00 in liabilities. Now she receives approximately $100.00 per week of the $1 , 842.00 per week transferred to Dancing Angels from the Belmont. The rest of the $1,842. 00 is used to pay dancers. 3. On November 10, 1987, at approximately 1g: 00 p.m., Officer Dennis Meyer observed Belmont Bar employee Randy Glen Pape in a silver pickup parked to the rear of the house west of � the Belmont. A female was seated in the passenger seat next to . Randy Pape. Five minutes later, Officer Meyer drove back through the lot and saw Randy Pape in the pickup with a black male passenger. When Officer Meyer approached the pickup, Pape attem pted to hide som ething in the from seat. Officer Meyer subsequently seized a bag of marijuana sticking out of Pape' s pants pocket. The bag was 1 1/2 inches in diameter , and 3 or 4 _ _ _ inches long. An additional three bags of marijuana and two Thai sticks were fo�r�d in the pickup glove box. Per Belmont Bar policy, Randy Pape was suspended from employment for a period of ___ time as -a result of this involvement--with drugs. - 4. In January or February, 1988, Officer Meyer again saw Randy Pape with a dancer in the Belm ont Bar parking lot. He also observed a small tray with a green leafy substance and cigarette papez. The dancer admitted that the m arijuana was hers. Per Belmont Bar policy, the dancer, Debra Fox, was suspended from employment for a period of time and was fined. Randy Pape was dismissed. � 5. The sale of drugs by Randy Pape occurred when Randy Pape was off duty. After these incidents , an attendant was hired to monitor the Belmont parking lot six or seven nights per week. 1 . : , . , � _ • 6. On January 14, 1988 at approximately 9: 00 p.m., Officer Dennis Meyer observed two women loitering on the corner of Dale and Sherburne. One of them walked into the Belmont parking lot and began approaching men leaving the bar as they walked to their cars. She engaged one man in converstaion, but nothing came of it. • 7. As Officer Meyer approached to 60 feet northeast of the bar , in the parking lot, bouncer Jerry Meinhofer yelled at him "This shit' s gotta stop ... You can' t be doing this shit here ... I want you out now." • 8. Shortly aftez Meinhofer' s outburst, the Belmont Bar manager apologized profusely for his behavior to Officer Meyer. Management had never tried to discourage the police from patrolling the parking lot, and indicated they would cooperate . with anything the police wanted done: Two hours later, Meinhofer also apologized to Officer Meyer , although somewhat less enthusiastically. Meinhofer no longer works at the Belmont Bar . 9. In late November or early December , 1987, a thirteen year old having initials T.D.M. applied for employment at the Belmont Club. The job required her to dance in a glass cubicle adjacent to the area where drinks are served in the Belmont Bar. The cubicle was twenty or twenty�five feet by fifteen feet. T.D.M. was born on January 17 , 1974. She was thirteen years old when she was hired. She never filled out an application for employment, and lied about her age to Dancing Angels manager Nancy Osterman when asked. She then performed an audition. David Fan was present at the audition. She was hired by David Fan. T.D.M. did not sign a contract with the so=called Dancing Angels, Inc. until seven weeks after her audition. She was clearly an em ployee under the direction and contzol of David Fan. T.D.M: aia not furnish Nancy Osterman or David Fan__with a copy of - her birth ceztificate or any other proof of age when she was hired , or at any time thereafter. A reasonable person would have inquized further about T.D.M.'s age, given all of the facts and circumstances at the time she was hired. T.D.M.'s testimony that she was not required to prove her age is credible; she had - no motive to testify f alsely in the license hearing , and no interest in the outcome of the license proceedings. Testimony of witnesses for the Belmont contradicted each other on matters relating to the control and management of the dancers, and all had an interest in the outcome of the proceedings. 10. T.D.M. signed a "Dancer,. Agreement" with Dancing Angels, � Inc . which provided , among other things , that she was an independent contractor, free to exercise her own judgment as to ' costuming , exotic dance routines, and music used "as limited by , applicable laws and ordinances." -(Respondent's Ex. A) . This - _ _ � 2 Agreement also spelled out "Responsibilities of Dancer" , i.ncluding that " [d] ancer shall abide by all applicable laws , statutes, ordinances and regulations governing exotic dancing ... [andj shall not ... commit any felony ...". (Respondent's Ex. A) . This Agreement was executed on January 4, 1988. (Ex. A) . Even though T.D.M. signed the Agreement with Dancing Angels, Inc., she understood that she worked for the Belmont Club, and that her boss was David Fan. 11. "Dancing Angels" are instructed that they can't touch themselves in their genital areas. The St. Paul Legislative Code which relates to this subject is reviewed with the dancers periodically, and there is a sign posted in the dancer's dressing zoom which states : "You cannot touch, caress or fondle your breast , buttocks , anus or genitals. If you can't follow this - - rule you will lose your jobl ... , Att. all dancers, you must carry your valid Minn. I.D. on you at all times or you don' t dance. So don' t lose it." (Respondent's Ex. D) . There was evidence showing another incident concerning a sixteen year old dancer , not alleged in the Notice of Hearing , but raised by counsel foz Respondent in his crossLexamination of Officer Meyer. _ . _. _ - (Tr. 78 = 79) . This dancer was about .to perform on the stage and had no identification or proof of age. � 12. T.D.M. looks older than her age, and could be mistaken for an eighteenLyear=old. When she auditioned for Dancing Angels , she was wearing more makeup than she did in court, and her hair was shorter , and stood up more. Nonetheless , a reasonable person would not have accepted her assertion of age at face value , but would have inquired furthez as to her age. 13. T.D.M. procured an identification card from the "Unbank" on December 8 , 1� 87. (City Ex. - 2) . - On - that _ _ identification cazd , her birthdate is shown as 1-17-68. (City Ex. 2) . � , 14. As a "Dancing Angel" , T.D.M. was paid approximately 510.00 per hour plus tips, which were stuck through slots in the glass_ dancing cage by_ Belmont patrons. She was paid with a _ - - Dancing Angels, Inc. check , signed by David Fan. (City Ex. 3) . She worked six days per week. David Fan and a bartender , Sherry, were present in the bar .during T.D.M.'s performances from time to time. David Fan would tell T.D.M. to leave the bar if she came in for pop or cigarettes , because she was under Z1 years of age . 15. On February 2, 1988 , Officer Lawrence Rogers entered the Belmont Club, �iaving received information that T.D.M., a runaway from foster placement , might be in the Club. Officer Rogers did not discuss the matter with David Fan or ask for Fan's cooperation concerning T.D.M. David Fan ws present in 3 the Club on February �2, 1988 , and Officer Rogers characterized the Club's general attitude toward the police as more than �� cooperative." At approx imately 10: 00 p.m. on February 2, Of f icer Rogers observed T.D.M. wearing a halter or bikini top with a matching mini=skirt. While dancing , T.D.M. exposed� her pubic areas and buttocks by lifting her skirt and by squatting while facing males seated at stageside. While squatting , T.D.M. performed several pelvic thrusts and spread her legs in such a manner as to expose her inner vaginal area. During a second song, T.D.M. returned to the stage wearing only the top of her costume and continued to dance in a similar manner , including the fondling and touching of her breasts and genital area. During a third song , T.D.M. returned to stage wearing only high=heeled shoes. She then continued to dance as previously described and also lay on her back with her feet on the stage , while bending her knees at a 90 degree angle. In this position, T.D.M. bridged her back, spread her legs, and performed numerous pelvic thrusts toward the patrons. This maneuver was accompanied by the touching and fondling of the breasts and genital area. 16. The City Attorney asked Officer Rogers to make out a suppplementary police repnrt, describing T.D.M.' s activities -in - - more detail , which report was completed on February 22, 1988 . 17. The Dancing Angels policy is that a female has to be eighteen years of age to dance. If dancers are underage , they are not permitted in the bar. Dancers currently are required to have a valid Minnesota ID or driver's license to verify their ages . This represents a tightening up of � identification requirements ; at the time T.D.M. was hired, other kinds of identification were accepted . The Unbank ID was never acceptable. 18. Known prostitutes loiter in the University and - Sherburne area. There are 3 -� 15 prostitutes working the Sherburne area per night, depending on where the police cars are. They can be observed on the sidewalk to the front, back and side of the Belm ont Club. They can be observed inside the Belm ont parking lot , talking to people leaving the Belmont. One neighborhood activist, Manual Melendez, has observed prostitutes approaching cars in the lot five times in the last two years. Neighborhood resident Bruce Eisenm enger has seen prostitutes on Sherburne at the entrance to the lot on numerous occasions during 1987+-88; he has seen prostitutes within the lot on occasion and has observed some enter the Club. Mr. Eisemnenger observed such activities daily or every o�ther day until the last month. Officez Charles Lutschen has contact with prostitute problems in and about the Belmont about two times per night. Officer � Lutschen believes he has made one arrest in the Belmont pazking � lot. There are more prostitutes on the sidewalk than are ever � 4 seen in the lot. Some of the prostitutes go in the parking lot tp -evade the police. The Belmont parking lot also is used by patrons of the Faust and Flick Theaters, although m anagement has attempted to discourage this. It is quite common to observe discarded condom s in the parking lot and adjacent streets. Pim ps and prostitutes have been observed entering the Belmont. In the winter , these people may be looking for som eplace warm. The record contains little evidence regarding the activities of these individuals inside the bar . Officer Dennis Meyer saw a prostitute in the bar only once, and he didn't inform management. Officer Charles Lutschen has observed pim ps sitting in the bar , where prostitutes come to deliver money to the pimps. He has observed prostitutes and pimps use the bar for drinking and picking up customers. He has never made an arrest inside the bar for solicitation; but he has m ade 20 = 25 arrests outside the bar for solicitation inside, and others , as follows: one (1) in Lendway's lot, two (2) in Skipper's lot, twenty to thirty (20 = 30) on the corner of Sherburne and Dale , twenty (20) on University and Dale, as well as numerous arrests at St. Albans and Sherburne and Kent and Sherburne. 19. The Belmont Club is located in� a high cri�me/high prostitution area. While the Belmont is not the sole and exclusive source of prostitution in the area , it is used by prostitutes in sufficient :numbers for meeting � with johns , for shelter from the elem ents , for avoiding police officers , for meeting with pim ps, and in conjunction with the parking lot using the licensed activity as a base of operations. Prostitutes use houses on Sherburne. 20. The Belm ont Club wasn' t "targeted" for protest by community action groups until recently. After the T.D.M. incident, David Fan met with the vice squad to discuss procedures that were going to be followed. Sgt. Schaub expressed his intention to give the Belmont more photographs of known prostitutes and pim ps , but wasn't going to do that until a procedure was settled upon. City officials m et with Belm ont representatives on April 1, 1988, to try to reach an agreement to eliminate the prostitution in the Belm ont parking lot. David Fan - said he would hire a security guard and do everything possible to eliminate prostitution in the lot. He requested photographs of known prostitutes and pimps. He suggested that seminars be given to his employees regarding how to identify prostitutes or pimps. He was cooperative regarding eliminating the problem, looking for guidance from the police departm ent. During �the last m onth, there has been a "tzemendous improvement" in the discouragement of prostitution around the Belmont; Chris, the security guard , currently is doing an "excellent job" of "shooing girls off the lot." During the last couple m onths, Belmont em ployees have been � more vigilant about stopping prostitutes at the entrance to the 5 . : � . � ��'. �� parking lot. The Belmont parking lot is well�lit and the trees in . the area have been trimmed. The Belmont efforts at improvement are clearly related to and result from the initiation of enforcement action against the licenses of the Belmont Club. 21. The Belmont management has not always cooperated with the police as they come through the bar. The bar management allows the police to come inside and make frequent checks. Douncers and bartenders have infrequently pointed out prostitutes and pim ps to officers and asked officers questions regarding whether a woman is a working prostitute, but more often have failed to recognize that the problem exists and have not responded to Officer Lutchen's requests to view photos of prostitutes working the Belmont Club and parking lot. The bar manager once has advised the police, "I think ,he's a pimp; I think she' s working ." Oficer Lutchen has advised the bar management that they do have the right to evict known prostitutes, especially if they are working the bar , but he has never been asked to evict a pzostitute. In contrast, he has been called approxim ately twenty tim es to evict prostitutes from Lendway's Bar near the Belmont and Lendway's Bar has sought vigorously _to de.al with the problem . The Liquor License Inspector has received complaints about prostitution in relation to the Belm ont Club, but has not received similar com plaints about Lendway' s. : " CONCLUSIONS 22. The 1 icensee employed minor T.D.M., who 1 ied about her age in order to obtain employment. The City has sustained its burden of proving that T.D.M. was employed for the purpose of engaging in a sexual perform ance, and has sustained its burden of proving that the licensee permitted a minor to engage in a sexual performance. _ _ _ . 23. The Council concludes that the findings and evidence in the record relating to prostitution are sufficient grounds for disciplinary action relating to the licenses of the Belm ont Club, in that they reflect the existence of a nuisance for which the said Belm ont Club is accountable, and constitute a serious danger to the public health, safety and welfare. Such findings aze grounds for adverse action under Section 409.88 (6) of the Saint Paul Legislative Code, prohibiting licensees from permitting licensed premises to be used as a resort for prostitutes; Section 310.66 (7) of the Code allowing revocation when the actions of the licensee in the licensed activity create danger to public health, safety or welfare; and unc7er Section 231.01 of the Coc7e, as well as Minnesota Statutes 1986 , Section 609. 74 , relating to nuisances. . 6 � ' � 24. The Council . concludes that the findings and evidence in ,the record relating to hiring a thirteen=year old girl to engage in sexual perfozmances are sufficient grounds for disciplinary action relating to the licenses of the Belmont Club, in that they show that the licensee has indicated by such misconduct his lack of the requisite fitness and good moral character to engage in the licensed activity as provided by Section 310.06 (9) of the Code. Such findings also show a violation of Minnesota Statutes 1986 , Section 617.246, and of necessity constitutes grounds for adverse action under Section 310.06 (6) of the Code , concerning violations of statutes which reasonably relate to the licensed activity. 7 . City-88-U21-Lr, � � �3-2101-2427-G STATE UF MINNESOTA OFFICE OF AUMINISTRATIVE NEAkT�GS - ; FOR TFiE CITY UF 5T. YAUL In the Matter of tF�e FI�lL1INGS U� FACT , Or�-sale Liq��or Licer�se C0�lCLUS IONS, ANii for the Belmont Clut� kECOMMiENDATION The at�ove-Pntitled m3tter came or� for tie3rir�� t�efore Administrative L�w ;Jud�e Carol Grant on i��y 24, 1988, in the Fourth Floor AUditori��m, St. Paul Put�lic Lit�rary, 5t. Paul , Mir�r�esota. �ursuar�t to tt�e stipulatior� of t�oth parties hereir� , the hearir�g ir� this m.�tter car�clu�jed on �ur�e 21 , 1988, the ��te of receipt of ti�e fir�al brief of the licer�see. Philip Byrr�e, Assist3r�t City Attorney, Attorr�ey for the City of St. Paul-Licer�se Inspector , G47 City H�11 , 5t. Paul , �iN JJZO2, .appeare�� or� t�eh3lf of the City of St. P3u1 . James Kresr�ahan an�i �f3ry Seymour , Cochr3ne & Rresr�ahan, 24 East Fourth St . , St. Ya��l , MN JJZUI-ZO�J�J� �ppeared or� �,ehalf of the licensee. This Report is sut�mitted to the St. I'aul City Co��r�cil p��rsu3r�t to 5ectior� 310.05 ( c-1 ) of the St. P��1 Legisl3tive_ _ _ Co�e. STATEMENT 0� I5SUES The issues tn t,e �jetermir�ed ir� this prncee��ir�� are whether sar�ctior�s should be iaiposed upon ar�-sale liq��or licer�seholder MFL, Inc. , d/t,/a/ the Belmor�t Cl��b because ( 1 ) ar� off-��ty employee possessed drugs ir� the belmont parl,in� lot, c3usir�3 Helmont managemer�t to sUSper�d 3r�d ther� fire the employee; (�) an � employee yelled at ar�d thereby ir�terfered with a police officer ir� the performar�ce of his duties, causin� Pelmont man.a3ement to apolo�i�e to the officer and reqUire tt�e employee - ta apolo3ize as well ; (3) a mir�or , who lied at�out her ��e wher� employed • t�y T�3r�cing Ar►3els, Ir�c. , er�g��ed ir� a se:•:ual performance which coul�� t�e viewe�d by Eeelmor�t Clut p3tror�s; or � (4) prostitution activities on or at�out t�e licer�sed premises constituted � neight�orhood nuisar�ce. E�ased ��pon .all of .the procee�iings herein, ti�e A�iministrative Law Judge makes the followin3: FINDIN�S OF FACT 1 . Ar� or�-s31e liquor licer�se is hel�� k�y MFL, Ir�c. d/t�/�/ the E�elmor�t Clut� . MFL, Ir�c. 'is owr�ed by ar� ir�divi�dual named I��vid F3r� . Ur�til hiarch 1�, 1988, li�vid Far� also owr�ed D3r�cing Ar��els, �xhl�0i l J Ir�c. City Ex.. '. Nancy Osterm3n ha� beer, ar�3!�er of L7ar�cin� • Ar��els, Ir�c. , which corporatior� s��pplied �J3ncers to 3 v�riety of' t�ars ir� Mir��esota ar�d Wisconsir� . �is. Ostera»r� receive�� 2�U.-3UU. per week salary from the E�elmor�t �nd another t�3r to m.ar�age the dar�cers . On March 15, Nar�cy Ostermar��, tt��e man��er ,- ' .of Iiar�cir�g Ar�gels , p3id Uavid F3n �20. a�►�� theret�y purchase�i the ' stock of T�ar�cin� Ar��els, alor�3 with '�1�.-18. ir� liabilities . Now she receives appro:•:im3tely �1U0. per week of the �1 ,842. per week. trar�sferred to Dar�cir�3 Ar��els from the Kelmor�t. The rest of the �1 ,84� . is used to pay ��ar�cers. 2. Ur� Nov. 10, 1987, �t appro>:im�tely 14:On p.m. , Officer ' I�er�r�is �ieyer or�served L�elmor�t Par employee Fcar�rJy rler� Yape ir� 3 silver picicup par�ed to t�e rear of the hous� west of tt��e Pelmont . A female w.as seated ir� tti� passenger se3t r�e>:t to kanr�y P.�pe. Five mir�utes later , Officer hfeyer rJrove t�acl�. tt�rou�h the lot ar�� s�w kar��y P�pe ir� the pic��p with a t�l�ck m31e passer�ger .When Ufficer Meyer approached the pic�up, Y3pe attempte�� to hi��e son�ethin� ir� the front 5E�3't.. Ufficer Meyer sut�sequer�tly sei�ed a t�a3 of m�ri ju�na stick.ir�� out of F��pe 's p.3r�ts pocket. The t�a3 w3s 1 1/2 ir�ches in �iameter , an�j 3 or 4 inches lon�. Hr� a�iditional 3 t�a3s of mari ju�r�� ar�� Thai sticl;s werp four��j ir� the pirkup glove t�o>;. Yer belmont I�ar policy, Kandy Pape was susper�ded from employme��t for a perio� of time as a result of this involvemer�t with dr��3s. 3. Ir� Janu�ry or Fet�ruary, 1�88, Officer hieyer agair� s3w kandy Y�pe with a dancer ir� the Belmont I�ar par�ir�3 lot. He 3150 - _ _ observed � small tray with a �reer� leafy s��t�stance and ci�arette p3per . Ti�e dar�cer 3�jmitte�� ti�at the mari j��ar�a w3s hers. Yer Belmor�t Bar policy, the dancer , Tiet�ra Fo>;, was suspen�ed from employmer�t for a period of time ar�d was fir�e�j. Fcar�dy Pape was dismissed. 4. The s�le of drugs t�y Tt�r�dy P�pe occurred when kandy Pape w�s off-�duty. After these incider�ts, 3r� atter��ant w3s hire� to monitor the Ljelmor�t parkir�3 lot G or 7 r�i�hts per week. S . Ur� �ar��ary 14, 1988 at �ppro::im�tely 9:00 p. m. , Off icer Uenr�is t�eyer ok�serve�i two_ women loiterir�g �r� t�e corr�er -of -Uale- - - . ar�r� S�ert��rr�e. Or�e of tt�em walice�� irrto the- Belmor�t parkin3 lot - �r�d t�egan approachir�3 men leavir�3 the bar as tt�ey w�lked to their c�rs. 5t�e er�333e�j or�e m�r� in convers�tior�, b��t r�oti�ir�g came of it. G. As Officer ileyer approached to G0 feet r�ortheast of the t��r , _ ir� the p.�rkir�� lot, t�our�eer Jerry Meir�hofer yelle�j at t�im, 'Tt�is shit' s 3otta stop . . .You car�'t t�e doir�3 this shit here. . . I w3r�t you a��t r�ow. " 7. Shortly after �ieir��ofer 's outburst, the Belmont Har mar�a9er apolo3ized profusely for t�is beh�vior to OSficer �ieyer . i�ar�a�ement h�d r�ever tried to. discourage the police from p•atrollir�g t parkin!� lot , ar�d ir��icate they waul�� cooperate , � with �r�ythir�9 the police w�r�te�j ��one. Two t�o��rs later , � Meir�hofer also apologi�e�� to Officer Meyer , altho�� somewi�at less er�t�usiastically. Meir�hofer r�o lor��Fr works 3t the belmr�r�t E�ar . . , 8. Ir� late �tovemt�er or e3rly Itecember , 1987, � juvenile havir�3 ir�iti�ls �.D.M, applierJ far employment with L�3r�cir�g Ar��els , Ir�c. TF�e jot� required i�er to �i.�r�ce in 3 31355 cUt�icle 3��jacer�t to the area wt�ere ��rir�ks are serve�i ir� the fselmont I�ar . Ttie cut�icle was twer�ty ar twer�ty-five feet t�y fifteer� feet. T.n.hS. was borr� or� J3n. 17, 1�%9. She w�s 13 ye3rs o1rJ wher� st��e was hired. She r�ever filled out an application for employment, ar�d lierJ abo��t her a9e to Ii�r�cir�� Ar��els n��r�ager Tlar�cy Ostermar�, when st�e asl;ed. She ther� perfornied 3r� audition. T��vid F�r► was present at the au�itior�. She was hire�� t�y U�viti F�r�. 9. T.I:�.M, si3r�ed a 'Ltar�cer A�reemer�t• with Iiancing An�els, Ir�c, uhirli provi�ied, amor�� other thin�s, that she was ar� ir��eper��er�t contractor , free to e>;ercise t�er owr� jud3ment as to costumin� , e;<otic dance routines , ar��J music ��se�J 'as limited t�y applicat�le laws ar�d ordinar�ces. • kespor�dent's Es:. A. This A�reement also s�pellerJ out 'kespor�sit�ilities of Ii�r�cer , • ir�cl��dir�� that ' Cd7ar�cer shall abirJe hy all applic3t�le laws, st�tutes , or,�ir�ar�ces �r�d regulatior�s 3overr�ing es;otic dancir�g. . . C3r�d7 5�1311 r�ot. . .commit �ny felor�y. . . • I2espor�rJer�t's E>:. A. This A�r�pmer�t w3s e>:eruted or� �ar�. 4, 1988. E:;. A. Ever� thou3h T.U.�i. sigr�e� the A�reement with Iiancir�3 Ar��els, Ir�c. , she - - ur�derstood that she worked for the E�elmor�t Clut�, ar��j that her t�oss w3s li.�vid F3r�. 10. 'T�ar�cir�3 An��ls' are ir�structed that they car�'t tourh themselves ir� their �er�it31 are3s. The St. P3u1 Le3is. Co�Je w�ich relates to this sut�ject is reviewed with the dar�cers periodically, �r�� there is a si3r� posted ir� t�e r�ar�cers ' dressir�� room at�ich states: ' YoU car�r�ot touch, caress or fondle yo��r breast, t�uttocl:s, �r�us or 3er�it3ls. If you can' t follow this r��le yo�� will lose your jot� ! . . .Att. all dar�cers, You m��st c�rry your vali�j Minr�. I.I1. or� you 3t all times or yn�� dor�'t _ dar�ce . So dor�'t 1 ose i t. ' kespor�der�t's Es:. U . 11 . 1.Lt.i�. looks older th.�r� her age, ar�d cou1�J t�e mist��er� for ar� eig�teer�-year-old. W�en she auditioned for Uar�cir�3 Ar�3els, she was wearin3 more m�keup thar� she did ir� co��rt , ar�� t�er h3ir was shorter , and stoo� up more. 12. T.U.M. proc��red ar� identificatior� card from tt�e 'Unbank.' on Iier. 8, 1987. City E::. �: Or� that identificatior� c3rd, her t�irthdate is showr� as 1-17-G8. City E::. �. 13. As a 'I�3r�cir�3 Ar�3e1 ' , T.D.M. was pai�j appro::imately �10.00 per i�o►�r plus tips, which were stuck thro��3h slots in the �l�ss �i3r�cir�3 ca�e t�y Iielmor�t p�tror�s. She w�s pai�j with a U3r�cin� Ar��els, Ir�c. check, si�ned t�y liavid Fan. City E::. 3. She work.ed � � �� si:: �3y5 per �ek. Uavid Far� an�J 3 �3t� der , 5herry, were • preser�t ir� t�e t�ar durir�3 T.I�.�(. �s performar�ces from time to tin�e. U�vid F�n would tell T.D.hf. to leave the t��r if she came in for pop or ci3arettes, because she was un,�er :31 years of a�e. 14. � Ur� Feb. �, 1988, Officer L3wrer�ce kn�ers er�tere�� the ' Relmor�t Glub, havin9 received informatior� tt�.at T.Ii.�f. , a rur�aw3y from foster placement� mi�ht bp ir� the Cl��b. pfficer ko�ers ��i�� r�ot discuss the matter wit� Liavid F3r� or as�. for F3r�'s cooperatior� cor�cernin� 1.L�.M. . Ii3vi�j Far� w�s preser�t ir� the Cl��t� or� Pet�. 2, 198fl, ar�d Officer Ito3ers c�ar�cteri�e�� the Clut� 's �er�eral attitur�e towar�i the pnlice as 'more tt�3r� cnoperative. ' At appro;:imately 10:U0 p.m. or� Fet�. 2, Officer k��ers ok�serve�� T.Ti.M. wearir�� 3 h3lter or t�iNir�i top with � matct�ir�� mini-skirt. Wt�ile dar�cin�j,7.D.M. e>;p�se� her put�ic areas an�� t��ttocl:s t�y liftir�g her skirt ar��j t�y 5QUe3't'F.1f13 wt�ile f�cin� niales se�ted at sta3esi�ie. While squattir�3, r.T�.M. performe�j sever3l pelvic ttirusts ar��j spre��j her legs in surh a mar�r�er aa to e:;pose �er ir�r�er va3inal �rea. Durir�3 a secor�� son�, T. It.�f . returr�ed to the sta3e wearir�g only the top of her cost�_ime 3r►r� contir�u�d to dance ir� a simil�r m�nr�er , ir�cludir�g the for�dlir�3 and -tourhir�� of her breasts and 3er�it31 area. L�urir�� 3 third son�, T.Ti.M, returr�ed to the sta9e wearin� or�ly hiqh-�eeled shoes. She ther� contir��ed tu dar�ce as previously �lescrit�e�� 3r��j also lay or� her t�acl, with �er feet or� the sta3�, wt�ile t�endin� her �r�ees �t � 9U �e9ree ar�31e. . Ir� this positior►, T.U.hi. t�rid3ed her t�ack, spread her leqs, ar�d performe� numerous pelvic _ t,hrusts toward �he patror�s. This mar�euver was accompar�ie� by t�e touchir�� ar�d for�dlir�g af the breasts ar�d 9er�ital area . 15. The City Attorr�ey �sked Offirer ko3ers to make o��t a supplemer�tary police report, describir�� T.U.M. 's activities ir� more detail , which report was complete�i or� Fet�. 22, 1988. 1G. The Dar�cir�g An�els policy is that a female has to be 18 years of a3e to �i.ar�ce. If d3r�cers �re ��r�r�era�e, they 3re not permitte�i in t�e h�r . Dar�cers currently are required to h�ve � v�lid �iir�nesot� II� or driver 's licer�se to verify their 33es. This represer�ts a ti3i�ter�in3 up of i�Jentification req��irements ; at the time T.U.M. was hired, other kinds of ider�tific�tior� were accepted. The Ur►t�ar�k IU was never acceptat�le . 17. F:r•�owr� prostitutes loiter in the Ur�iversity ar�d Shert��rr�e �rea. Ti�ere are 3-15 prostitutes worl:ir�� the Shert�urr�e 3rea per r�i3ht, �Jeper��ir�� or� where tt�e police cars are, They c�r� t�e ot�serWed or� ti�e -sidewalk. to the fror�t, t�ack �r�d si�ie of the Relmont C1Ut�. Ttiey c.ar� t�e ot�serveti ir�si�je the Belmor�t p3rkir�� lot, talkir�g to people leavir�g the I�elmor�t. Ur�e r�ei9�t�or�ood vi�il3nte, �f.�nuel �ieler��ez, has ot�served prostit��tes approachir�3 cars ir� the lot five times ir� t�e l�st two years. i�ei3hk�orhoo�� resider�t I�r��ce Eiser�mer��er has seer� prostitUtes or� Shert��rne 3t the er�trar�ce to the lot or� numeraus occ3sior�s dUrin� 1987-88; he i�3s seen prostit��tes withir� the lot or� occ�sio�� an�� has ot�served some er�ter the Glut�. Mr . Eiser�mer�3er ot�served suct� activities �aily or eve� ot�er day Until the last r�t�. Officer Charles . ' Lutscher� h.�s contact witt� prostitute prot�lems ir� �r�� t�out the � Relmor�t 3t�o��t two tinies per r�i�ht. Officer Li�tsctier� t�elieves he has made one arrest ir� the Nelmor�t p3rk.ir�� lot.T�iere are more prostit��tes or� the si�jewalk. th3r� 3re ever seen ir� the lnt. Som� • of' the prostitutes 3o ir� tt�e p.�rk.ing lot to evade the police. ' - The F�elmor�t parkir�� lot �lso is ��se�i t�y patror�s of ttip F3ust :�r��1 Flick theaters, altriou�� m�na�emer�t has attempte�� to discour3�e this. It is q��ite commori to ot�serve disc3rded condoms in the p3rk.ir�3 lot �r�d ��jacer�t streets. Pimps and prostit��tes h�vn t�eer� ot�serverJ entering the Relmor�t. Ir� the winter , th�se people may t�e loo�.ir�� fnr somepl�ce warm . The recard cor�t3ins liti:le evi�Jer�ce re�ar�iir�3 the �activities of these ir�divirJuals ir�si��e the t�ar . Officer L'ier�r�is hSeyer saw � prostitute ir� the h3r or�ly or�ce, ar•��i he di�Jr•�'t ir�form m3r�agemer�t. Ufficer L'h3rles L��tscrier� has �t�serve�J pimps sit�ir�� ir� the t�ar , where prostitutes con�e ta deliver ninr►ey to thP pimps. Me h.3� ot�serv�d prostit��tes ar�� pia�ps use tF�e t�ar for drinkir�� ar�d pickin� ��p customers. He �'135 r�ever made ar� �rrest ir�si�e the t�ar for solicit�tior�, t��at tie h�s made s�.U—iJ arrests outside trie t�ar for solicitatior� ir�sirJe. 1$. The Belmor�t Clut� is loc3te�� in 3 hi�F► crime/hi3h prostitutior� area. The Pelmar�t is not the soUrce of prostit��tior� ir� the are�.Prostitutes use houses or� Si�ertrUrr�e. 19. The E�elmont Clut� w�sr�'t 'targeterJ' for protest t�y comm��ni.ty .actior� 3rnups ��ntil recer�tly. After the T.Ii.M. inci�jer�t, _ _ Uavi� Far� met with_ ttie vice squad to. discuss proce�jures that were goir�3 to t�e followed. Sgt. SCI�3Ut� e;:presse�J his ir�ter�tior� to �ive the Helmor�t more photo�raphs of I,r�own prostitutes �nd pimps, �ut wasr�' t 3oir�� to do that Ur�til � proce��ure was settle�l ��por�. City offici�ls met with Helmont represer�tatives or� April 1 , 1988, to try to rearh an a�reemer�t tn elimir�ate prnstit��tior� ir� the L�elmor�t parkir�� lot. 17�vid Far� s.�id t�e woul�� i�ire � security gu3r�j ar�� rJo everythir�g possible to elimin�te prostitutior� in the lot. He rEq��ested pr�oto�r�pt�s of kr�owr� prostitUtes ar��j pimps. He suggested that semir�ars t�e given to his employees re�3rdir�� how to ider�tify prostitutes ar pimps. He w�s rooper.�tive re�.�rrJing elimir•�atir�g tPie prot�lem, look.ir�� for g�aidar�ce fron� the police- �iepartmer�t. liurir�� t�e last _ _ mor�th, there h3s beer� � 'tremer�dous iniprovemer�t ` ir� tt�e �isco��ragemer�t of prostitutior� arour�d the Relmont; Chris, tt�e s�curity ��ar�j, c��rrently is �oin� ar� 'e::celler�t jot� ' of ' shooir�3 girls off the lot' .liurir�g the last couple mor�l:tis , Relmont employees h.ave t�eer� more vigil�r�t �t�out stopped - prostitutes at tt�e er�trar�ce .to the parkir�� lot. The E�elmor�t p3rkiny lot is well-lit�. �r�d the trees ir� the �rea iiave beer� trimmed. � 20. Tt�e Belmor�t mana�ement has alw�ys cooperated with the police as they come throu�h the t�ar . The t��r man3�emer�t allows the police to come ir�side and niake frequent checks. I�ouncers 3r�� barter•�tiers h�ve pointe� o��t prostitutes ar�d pimps to officers ar�d asked officers questions re�ardir�g u�ether a womar� is a workir�g prost ute. The t�ar m�r�a�er ��s �ise�j the pnlice , ' I : � thir�k. he's a pimp; I think she's workir��. ' Tt�e t��r m�r�a3er Fias asl;ed the police if' the t�3r has the ri�ht to evict �r�owr� prostitutes, especially if they �re wor�in� tt�e t�ar . Ufficer Charles Lutscher� h�s r�ever t�eer� aske�� to evict 3 prostit��te. Ir� � cor�trast, he has t�eer� c�lled appro>:imately twer�ty times to evict � " prostitutes from Ler�w3y's Rar r�e3r the Belmor�t. 1he Liquor Licer�se Ir�spector has received complair�ts at�out prostitutior� in relatior� to the Relmor�t Club, t,ut has r•�ot receive�� similar complair�ts at�o��t Lemway's. E�ased upor� the fore�oin� Fir�dir��s af Part, the A��mir�istr�tive L�w :Judje m��es the followir�g: COtJC:LUSIUNS l . The A��mir�i�trativ�! Law :1u��9e ar��J t�ie St . Ya��l City Cour�cil h�ve jurisdictior� over tFiis matter pursuant to M.ir►r� ,,. Stat. 340A.404 Mir,n. 5t.3t . 14.5U �r��j 5t . Pa��l L�gis. Co��e ... ...... . ► .... _... . . ..._ .... ..._. _.._... _.._.._..... chapter 31U 8 909. T��e �lotice of He�rir�3 was praper ir� tt�iis m�tter 3r�� a11 proce��r31 requiremer�ts of law ar rule ti3ve t�eer� fulfilled t�y the City. �. St. YaUl Le3is. Code Sec. 409.OE3(� ) req��ires the 1 icer�see to mair�tain or��er ir� his place of t�usiness. 3. 5t. Yaul Le3is. Co�e Sec. 310.4G(t�) (7) permits t�►e [:i.ty ta tak.e a�verse actior� a��inst 3 lice��see if the •activities af � the licer�see ir� the licer�sed activity create or have created a serio��s dar�3er to the put,lic health, safety or welf3re . . . ' 4. St. P�ul Le3is. Code Sec. 310.OG(t�) (G) permits the City to tal,e adverse actior� a3ainst a licer�see if the ' licer�see. . .has viol�ted ar�y of tt�e provisior�s of these chapters, or of ar�y stat��te, ordir�ar�ce or regulatior� reasor�at�ly relate�� to the licer�sed activity. . . ' 5. Two isolated ir�cider�ts ir�volvir�g the possessior� of �dr��gs t�y ar� off-��uty employee ir� the licer�see's p�rl:ir�� lot rJo r�ot reflect the licer�see' s failure to m3ir�tain or�Jer , - - - - - - p3rticUl�rly when the employee was pUr�ist�e�J t�y the licer�see . Nor �io the ir�cidents constit��te activity t�y the licensee ir� violation of tt�e 13w or which creates a serio��s �ar�ger to the put�lic �ealth, safety or welfare. T�us, the City has r►ot proved violatior�s of St. P3U1 Leg. Co�je sections 310.OG(t�) tG) ,310.UG(t�) (7) or 909.08(5) due to t�e use of drugs ir� t�e Relmor�t p3rl:i�� lot. G. Ar� ir�cirJer�t�� ir,volvir�3 ar� employee of the licer�see who yellerJ at a police officer to discour��e him from ir�vestig3tir�3 possit�le prostitution outside the licer�sed premises does not reflect ttie licer�see's failure to m3ir�t�ir� or�er , p3rtic��larly wher� m�na�emer�t apolo�ized immediately an� profusely f'or tt�e employee's behavior , �r�d require�� the employee to apolo3ize to the officer involve��. Nor di�J tt�e inci�er�t cor�stit��te artivity Gy the licer�see ir� viala�ion of the law or which creates a _ _ serious d.ar�3� tn the put�lic i�ealth, s3i y or welf�re. Thus, , ' the City h�s not prove�i violatior�s of 5t. P.��1 Le3. Co��e ' sectior�s 310.OG(b) (G) , 314.OG'(t�) (7) , or 4U9.U8(5) due to ir�terference with the po'lice t�y a Rplmor,t employee . 7. Fiir�r�. 5tat. 617.24G S��t�d. 2 provid�s th3t it is � � ..._.._.._.._.._......._......_. 'unlawf��l for a persor� to . . . employ. . .or permit . . . a mir�or to er��a�e in . . . any se>:u31 performar�ce if the persor� kr�ows or has re3son to k.r�ow that the con��uct ir�ter�rJed is a se>:�J31 performance. ' This stat�ate is reasar�3t�ly relat�d to the licer�se�� activity in t�is c.�se. St. Ya��l Le3is. Co�� 310.OG (G) . 8. 11.�r�cir�� Ar�gels, Ir�c. , not the licer�see, employe�� minor T .I:i.M. , who li��j at�out her agp in or��er to ot,t�ir� �mploymer�t. The City has r�ot s��stair�e� its t�urder� of provir�3 that T.I�.�i. was employed for the purpose of er��3gir�3 in a se::u�l perform3nce, but has r�ot sustair�e�i its t�urden of proving tt��t the licer�see permitted a mir�or to en�a�e in a se„Ual performar�ce. 9. St. P'aul Le3is. Code Sec. 310.OG(9) provi�Jes that a��verse action may t�e tal:er� a33ir�st a licensee if the ' licer�see. . .h�s showr� t�y past miscor�duct. . .tt�at such licer�see. . . is not a person of the 3ood moral character or fitr�ess required to en9a�e in a licensed activity, b��sir�ess or professior�. ' 10. The City has not sustair��d its t�urden of provir�3 that the licer�see is not of good mor�l character . 11 . St. PaUl Le3is. Code 40a.48(G) provides that no ' licer�see shall . . . permit the licer�sed premises or ar�y room ir� the same or ar�y 3��jair�ir�g buil�jin� directly under his control to t�e use�J as a resort for prostitutes . . . ' 12. The City h3s r�ot sustair�ed its t��rden of provin� that the licer�see permitte�� t�e licer�se�j premises to t�e ��se� as � resort for prostitutes . 13. Mir�n. �t.at. G09.79 �r��J �G1 .01 prot�ibit r�uisar�ces, ar�d - ..._.._.._.._.._..._.._.._.._... .are reasor�at�ly relate� to the licer�se�j 3ctivity. St . F'.��1 Legis. Code Sec. 310.OGtt�) (G> . 14. Until this sprir�3, the licer�see permitte�J � cor�dition ir� t�re Belmor�t parkir�� lot which constit��ted a r�uisar�ce. The parkin3 lot situation currently is acceptat�le from a put�lic - perspective. -. 15. Ti�e attach�d Memorandum shall t�e nia�je a part of tt�e prnceedings t�ereir�. Based upor� the fore�oin� Conclusions, the Admir�istrative L3w �u�J3e m�kes the followirig: kECUhiMENIiAT ION IT IS HEFcE�Y kECOi�MENliEli ttiat the City Ca��r�cil t�ke disciplin3ry actior� a�3ir�st tFie licensee t�y imposir�� tt�e followir�3 cor��itiar�s upnn the licensee: 1 . A m�r��atory park.ir�3 lot atter►d�r�t from r�aon tn closing every ��y tt�e t��r is oper�, whose jot� s�a11 t�e t discoura�a� �olicitation f prastit��ti�r� ir� : ar�� r�ear the p�rk.in9 lot. 2. That tF�e licer�see, by its a3ents, person�lly and ni��tly rJen�3r�� a�,�j check 5t3t2 �river ' s , � licer�se ider�tificatior� of �r►y �i�r�cer visit�le ir•� the ' ]. icer�se�� pren�ises, to verify that tlie ��ar�cer is r�ot a roinor . 3. Th�t the licensee I;eep a recorr� of r�ame ar�rJ identif. icatior� ir�formation for dar�cers visit�le in the licer�se�� premises, wFiirh may t�e chec�e�� ir� the ever�t further q��estior•�s are raise�j at�out ur�dera3e dar�cers visit�le in t�e premises . 4 . That ti�e 1 ice��see t�e f inerJ ��,000. OU for havir�g permitteti a r�uisance, s�id f ir�e to t�e st3ye�� for a perio�� of two years on cor�ditior� that he peraiit r�o same or similar vio- latior� of tt�e r��is�r�ce laws. U�te�� tttiis -Gth �ay of �uly, 1988 . �./..��1Z.�S.._ . - • ----------- C�rol Grant Admir�istrative Law Ju��e �urs��ar�t to ch�pter 14.G2, 3 copy of the decisior� ar�� order ir� the ak�ove-entitled case shall t�e served upor� each party or the p3rty' s represer�tative ar�d the a��niinistr�tive law jurJ�e t�y first class mail . .' MEi�UItH�lIiU�i T�is is :a liquor lic�r�se revoc�tion procEe�jir�g un��er �ectior�� 31U an�J 909 of the St . I'�ul Ln�islative Co��e, As F�rt of Yiis ' c:ase, th� licensee ma�� :a v3riety of prelin�ir��ry motions: ' F3ilure to 5tate 3 C1•3im The lic�r�see maves ta disniiss, .ar9��ir�� that tt�e 311��3tlOf'�w ir�� ti��e Noti.ce of I-I��rir�� 10 r�ot fall within the �ro�.�n��s lor liq�aor lic�r�se rcvoc•3tiar� set f�rtti in tlie 5t . I13��1 Le�.�i�lativ� C�dF . T�e City� respan��=, tFi.�t it=, ac•tiona �rE r�ot li.mited k�y thE� or��zr�•3r�ces in .3r�y ever�t, .�r�� th�t it ha� intiFrer�t powcr •tu revoke 3 liy��c,r licEr�se for misc•ond�act ir�� ttie oper�tion of .� liq��or b�.�sir�es:s . 'Tiie City cites i•to�ak.uvit:: v. �ity._nf._S_t_._F�_�.!�7, , ..._.._.._.._.._......_......_......._..._....._ 1� t� . W. 2d 7�:i (P•Sir�r�. 1�J�:4 ) , ��t�cs v. Git��_�f;_�fir�r�e.�.pal.i:�., ].':.'0 ..._......_.._........_.._......._.._ �! .W . '?�� 871 (�iir�n . 1'JG3) , .3r��j H.ym��r�3ur�._.Y._r.._.C_i t_y,�._i�f._S�:_�._F'_�.!�.1., 3=�� N.W. 2d 32? (t•iir•�r�. 1�J83 ) , ta �.uppui•t it� r,i•��ment .kevocati�r�� ir� those r�<ses , tiowever , were ��or�e p��rs��nt to city ch.�rLer pravisior�s, or��ir�•�r•�c�s or 5't3'f.U�'.E'L . Th� c��se�. ��o r��t star��J f�ox• th� prnpositior� tti.3t ` Lt7i�e 3uthority ve�te�� ir� m��r�icip•�lities to p�=_.s or� licer��e. . . revc�c•atiar� is r�ut lir�iite�J t�y ti�� ar�Jin�r�cer> tt�ey m•3y ci�oos� tn .3��opt. ' City' s t�rief at �. TiiF privile3es oi: a licer•�see are sub ject to s��ch cor�ditiar•�s, i.r�clu��ir�� the C3U�•E' and m.3r�r�er hf' r�voc.3t i or�� s the le�i�13t iv� k��dy niay see f a.t to impo�.e.f�k��ln v . Ci.t,�'.._gf;_�r�3k.ape�., 2£3 �l .W. �d GA2 (Mir•�n. ...._.._..._..�..._.._. .... 1c�97) . P��t � sl.i�htly �ifferer�t w�y_, one wtio �crepi;s � _licer�se_ _ to s�ll ir�ta::ic�tir�3 liquor accepts th� }�rivile�e of so ��ir�� s��t�ject to tt» t�ur�jer�s imposed ��pon it t�y� 3r� or�Jir�ar�ce er�3cte�� ir� tt�e e::ercise of the palic� pow�r of the mur�icip�lit� arar�tir�� ttie licer�se . St�tP._y_,.._�:��s=., 8�! N.W . 2�� 90 , '��3 (i�i.r�r� . 1��?) . The qu�stion then t�econ►es whe�.t�er the cor��uct ��escrit�e�� ir� A11e�3tior�s Gnc� throu�ti Five is prot�it�ite�� by � statui:e ar 51: . Y�ul or��ir��r�c�. Alle�3tior� Ur�e d�scribes the ��r�lawful s�le o� ��r��3s ir� t�e p�rk.ir�� 'lot of the licer�se�� pren�ises k�y �r� eniployeF of' t�e licer�se�. 5�.. f'a��l Leg . Ca��e 409.0�3(5) req��ires ev�ry� licer�see to mair�tair� or��er in t�is p13ce of t��sir�ESS . at . P3��1 Le� . Co��e 409. 19t�) provi��es t�at ' Ca]r�y 3ct L-�y ar�y CIPI•k. , t�.�rk.e�per , �jerit , serv�r�t or employee �f =�r�y licer�see �7ere��r��er , ir� viol�tior� of tr�is cri3pter , �n�ll t�E� deeme�J th� :act of i:he employer 3rn� licer��ee of s��rt� p1.3ce . . . • �t, . Yaul LP�. Co��e 4U9. OG ( c) 5t•3'r.G�• �.�13'r, r�o lic�nse s�i311 t�� issue�J to anyar�P otn�r th•an .y persc�n of' �aoo�� mor31 c�•�racter . T�iese or�:iir��r�ce� provi��e suffi.cier�t �ra��r�ds to ��er�y tt7� lic�nsee' � motior� to ��ismiss A11eg•3tion One. - , Ad��itiur�ally, St. Pat�l Le�. L:c,�le SE�c. 310. OG(t�) (G ) s��pports Alle�3tinn Ur�e . Tt�i� section p�rmits .��vers� �ctior�� a��ir�st � lic�r�see if h� ' has violated 3ny of the pravi�ior�s af these cti�pters . . . ' Section w31 .01 of t�e Co�je prot�it�its r�uis�nces.b;r��wir�3 or 3rossly r�e�1.i�.�ent �ctivity w�ich i'3cilit•3tes the �31e of dr��s ir� t�-�e park.in� lot af' a liq��oi• e=.t3blisr�ni�r�t cau1�1 t�e consi��re�� a r��isar�c�.5t. P�ul Leq. Co��e Sec . 310. 0��(t�) (7) also supports Alle��3tior� Ur�e . Ser. 31U. OG(t� ) (7) p�rmit� a��verse �ctior� a3�ir�st � licer�s�E wriere ' Ct7t�e actiuiti�s of tt�F licer�see ir� the-licer�se�� •3ctivity cre�te or hav� create�J a serio��s ��n��i• to 1.he puk�li.c �ealtli, safety ar welfare, or t17e licer�see perf�orms or ha� performe�� hiss worl<. or ac�:ivi�.y in 3r� Ur�s3fe m3r�r�er . ' �d"'__. /�'��',� � Alleg.�tion Two alle9es ir�terferer�ce with police officers in the performar�re of t�eir assi3nment t�y ar� employee of the licer�see. Tt�e or��ir�ar�ce provisior�s referre�� tn ir� the precedir��,. ` two par�3rap�s s��pport Allegatior� Two, with the e:<ception of ' Sec. 231 .01 , as ir�terferer�ce with police officers could r�ot fairly t�e cate�ori�e�i as a 'r�uisar�ce. ' Alle3ations Three 3r�d Fo��r allege the ur�lawf��l employmer�t and use t�y the licensee of a mir�or for se:•:ual performar�ces ir� violatior� of hi_ir�n_., St3t� G17.�4G. St. P.3u1 Lp3is . L'o�� 310.OG(7) permits adverse actior� agair�st a licer�see if his activities ' cre3te or Pl•3VE cre3ter� 3 serious dar�3er to tt�e publir he3lth, safety or welf�re. . . • St. Y3u1 Le3is. Co�Je 310. OG<t�) (9> permits a�jverse actior� if the licer�see 'has showr� by p3st miscor�duct. . .that Che] is not a persor� of the 3oo�J moral character or fitr�ess req��ired to er�3.�3e' ir� the lzcensed activity. 5ec. 310.OG(t�) (G ) also s��pports Alle33tior�s Three �r�rJ Four , pera�ittir�3 a�jverse 3ctior� agair�st a licensee if he 'h3s viol�ted �r�y of the provisior�s of these ch3pters, or of any statute, ordi��3r�ce or re�ulation reaso��at�ly relate�j to the licer�sed activity. . . ' St. Paul Le3. Co�e Sec. 409, however , does r�ot support Alle3atior�s Three ar��J Fo��r . Sec. 409. 1�! ma�.es a licer�see respor�sit�le for tt�e acts of his employees. Sec. 409.08(4 ) state5 th.at ' Cr�]o per5or� under eighteer� years of a3e may be em�loye� in a place where ir�to:<icatir�9 liquor is sold for cor�sumption or� t�e _ premises . 'Yremises_ nf licer�se' is rJefir�ed ir� Ser . 409.OGte) as - 'the compact ar�d car�ti�uous space r��med in sUCh license. . . ' All licer�ses 3r3r�ted m��st set forth ' tt�e exact locatior� withir� the t�uildir�g structure' where liquor s�les may be made. Sec . 40�.OG(e ) . A special permit is require� for s31es of liq��or ir� areas outside the structUre cor�tair�ir�3 the licensed premises. Sec. 409.OG (e) . The Relmor�t Rar liq��or licer�se place of b��siness is G15 Ur�iversity Ave. City E>;. G. The City License Ir�spector testifierJ th�t there are five estat�lis�mer�ts where liquor is so1rJ or� or�e side of 3 gl.ass wir��jnw 3r�� r�u��P d�r�cin3 occurs t�e�ind tt�e win�jow; that ar� er�tertair�mer�t licer�se, distinct from a liquor licer�se, is iss��ed for t�e ��ncir�3 activities . Ir� t�is c3se, the �j:3r�cir�9 activities occur at a st��dio with a sep3r3te a�Jdress and er�tr�nce from the licer�se�J premises .See 31so City Attorr�ey Opir�ior� Letter d3te�j Sept. 14 , 1987, cite�J in the licer�see' s prehearir�� niotion brief. Code Sec. 409.OG(e) , the Opir�ior� letter .�nd the testimor�y s��gest th3t Ser. 409.08( 4> is r�ot applicable to this c3se , t�ecaUSe there is r�o ir�dicatior� that a person ur�der ei3hteen years of age was employed or� the licensed premises. Similarly, Sec. 409.09 prohit�its certain se::ual con�iuct ' on 1 icer�se�J premises . . . ' Sir�ce the �llege�� se::��1 �ctivities did r�ot take place or� the licensed premises, this sectior� canr�ot he used as a t��sis for a�verse actior� ��311'15'�, ti�e licer�see. Alle3�tion Five alle�es'the occurrer�ce of acts of solicitatio�� for prostitution, prostitutior� �nd prostitution-related activities ir� the licer�sed premises, on the p3rkin3 lot bet�ir�� the licenser� premises, 3r�d ir� the imme��iately ad jacer�t area, al l or wriici� constitute ( 1 ) a r��is�r�ce, ar�d (2) cre:�te or have create�� 3 serious �j.3n3er to the p��t�lic health, safety ar�d welfare. . . ' The 5t. Faul Legis. Code 408.08(G ) , � provi�jes that: • 'No licer�see shall . . . permit the licer�sed premises or 3ny room in the same or any adjoir�ir�g t��ildir�3 or a��y �djoir�i.r�3 t�uildin3 directly ��n�jer his cor�trol tn be ��sed 35 a resort for prostitutes. . . ' T�is Code provision requires �jeni�l af the hiotior� to L�ismiss Alle33tior� Five, as does Sec. 310.OG( G) ,providir�� ti�at the Cour�cil n»y tak.e a�jverse �ction if the ' licer�see. . .h�5 violate�� ar�y of the provisior�s of these ch3pters. . . ' includir�� the n��isance provisior�. Sec. 310.OG(7> permits the Co��r�cil to t3�.e adverse actior� if tt�e ' activities of the licer�see ir� the license�� ctivity cre3tp or h3ve cre.3te�J 3 serio��s ��ar�3er to the � �ublir �Falth, s3fety or welfarE. . . ' ar�d �lso supports Alleg3tior� Five .333ir�st 3 Motior� to Uismiss . Sut�ject Matter Jurisdictior� An a�jmir�istr3tive a�er�cy m.3y r�ot co��si��er t�e cor�stitutior�ality of the statutes ur�der wrfich it operates . McKe�_v. Co��r�tY.._gf__k�3mse_Y.., 245 N.W. 2�� 4G0 (Mir�r�. 1��7G) . Cor�sequer�tly, the A��mir�istrative L�w J��j3e will �jeal or�ly witti the applicatior� of st�tutes an� or��inar�ces to t�e licer�see' s t,ehavior , wit�out prejudice to the licer�see ir� the course of j��ici31 review. Stay of F�roceedir�3s The licer�see ar��es th3t if Allegations One thro��3t� Five �re r�ot dismissed, ti�e proceedir�gs st�oul� have t�eer� stayed to allow for immedi3te 3ppe�1 , or , ir� the alternative, staye�J per�dir�� the outcome of the crimir�al trial of Uavid Far�. T�ie licensee cited r�n authority for �is proposition that it cor�stitutes 3 violation of a licer�see's civil ri9hts for a�� Admir�istrative Law ��3e to issue a recommer�d�tior� re3ardir�3 liquor licer�se sar�ctions wt�ile reservir�3 cor�stitutional iss��es raiserJ by tt�e licer�see for j��iici�l �etermir�atior�. Nor is any 3uthority citerJ for ti�e propositian that a licer�see's rights are violate�� wt�er� ar� A��ministrative L3w J��J3e issues a recommer�datior� re�3rdir�g liquor licer�se sar�ctiar�s w�ile relate�J - crimin3l proree�in3s 3re. per�di��g. The crimin�l procee�jin�s are �irected a9air�st I��virJ Far�, who is ar� officer ar�d director of I�FL, Inc. , the licer�seholder of the I�elmor�t Club. I�3vi�� F.3r► 31so was ar� officer , director ar�� sole share�older of liar�cing An3els , Ir�c. , thro��gh sprir�3, 1988. U3vi�� Far� testifie�� for the licer�see at this cor�tested case �earir��, t��t asserte�d his fi!'tii amer�dment privile�e ner his � crimir�al lawyer ' s a��vice. T�is pracedure is co��r�ten3r�ce�J t�y the case 13w, Tia;:ter v . ..._.._.._.._.._.._.__... �lm_i�i3r�o., 4�5 U.S. 308 ( 1�7G) , 31tho��3� the case law permits a�verse inferer�ces a3air�st p�rties to civil actior�s wt�er� t�ey � ir�vok.e their privile3e a3air�st self-ir�crimir�3tior�. ,It�i�J_.. However , the Admir�istrative Law .Iudge ir� this c3se chooses r�ot to �jr3w ar�y inferer�ce a�jverse to the licer�see k�ased solely or� ' his assertior� of his cor�stitutior�al rights. ' The A�mir�istrative L.�w ;Jur�ge will r�ot t3k.e the licer�see' s su3�estior� to certify ar�y of the constitUtior�al questior�s r3i�e� as importar�t or �jn��btful . B��rden of Proof The licer�see 3r3��es that the City m��st prove its case beyor�d a reasor�at�le dout�t. 'The party proposin3 that certain actior� t�e t3�.er� m��st prove the f 3Ct5 .3t issue t�y a preponderar�ce of the evidence, ur�less the s��k�st3r�tive law provi�jes a ��ifferent t�ur�ier� or st.andard. . . ' Mi,nr�.,_k��l,es, 1404.7300(S) . Tlie licEr�see ac3��es th3t in its Notice, the City 311eges violatior�s of law, ar�d that ir� order to prove viol3tior�s of law , due process req��ires proof beyor��J a �re�son3t�le dout�t . The �lotice referer�ces crimir�al statutes articulatir�g prohit�ited t�ehaviors, but the City seek.s 53f�Ct10f15 .�3�inst the licer�see t�ased Upar� violatior�s of ordir�3r�ces attached to the _ City's hearir�g brief. The City. r�ee�Js to produce a prepon�erar�ce of the evider�ce to estat�lish t�ese allegatior�s . A�missit�ility nf He3rs�y 3r�rJ Police keports Ti�e licer�see ar��es th�t the City m��st s3tisfy its t�urder•� of proof 3ccor�jing to the tlir�r�esot� kules of Evi��er�ce ar��j not t�y he�rsay evider�ce. �fir�n. Rules 14.G0 Sut�d. 1 provides that reli�t�le hearsay is �a�jmissit�le . The licer�see further arg��es tr�at police reports, to3ether with 311 testinior�y related thereto, th3t h3ve r�ot t�eer� followe� by a cor�victior�, must be suppressed from evider�ce pursuar�t to - hf�ir�r�._St3t� 3G4.04. Th3t st�t��te provi+�es: 'Ti�e followir�g crimir�al recor�Js shall r�ot t�e use��, r�istriG��te��, or rJissen�ir�ated t�y the State of Mir�r�esota, its 39er�ts or polatical sut��jivisior�s ir� cor�r�ectior� with ar�y applic�tior� for p��t�lic employmer�t nor ir� cor�r�ectior� with ar� ��plicatior� for � a licer�se: t 1 ) Kecor�Js af 3rrest not followe�j by a vali�d conviction. . . ' The above st3t��te was passed ir� 1974. In 1979, tt�e �Sinr�esot� Suprenie Court decided Petersar� v. Mpls_,_Ci:ty_Caur�cil , 274 N.W. _._.._.._.._._.�.._.._..._.._.. ._._.. yd 918, hol��ir�9 ttiat arrest 'reports are a�imissit�le in admir�istrative proceedin�s relatinq to licenses. ' I�i� at 9�0. This is cor�sister�L with the policy gnverr�in3 t�ir�r�._Stat . 3G4 et �'�' _ ��c� � � seq.... See Mi��r�. St3t. 3G9 . 43 S��t��. 1 . See 31so Minr�. Stat. 13.8'? ..._.._.._.._.._..._.._.._.._... ..._.._.._..._.._....... .........._.._.._..._.._.._.._... S��t��j. �, �istir�3►�ishir�� t,etweer� arrest ar�d ir�vesti3ative �at3, and makir�3 ir��ctive ir�vesti�3tive �3t3 oper� to the put�lic. ' The A��mir�istr3tivp L�w �u��9p gives r�o wei�ht wt�3tsoever to trie � " fact t�at there m3y have t�eer� certair� arrests ir� cor�r�ection uith t�e Helmor�t Har . It is tt�e facts �r��erlyir�3 those 3rrests w�ich may t�e relev3nt. The licer�see 3rgues that the police report tCity �sc. 5) , if a��missit�le, sho��l�j t,e given little wei3ht bec3use zt was m3��e fourteer� �Jays �fter the fact, at the request of ttie City Attnrr�ey' s offire. Thp ArJmir�istr�tive L�w :1��j3e cor�cl��jes th3t the delay ir� creatir�3 the police report doe5r�'t go to its a��missit�ility, t��t to its wei3ht. �ermissit�le Witr�esses The licer�see oGserves ttiat in its Notice, the City ir�dic�ated that it may call persor�s ' who have a sut�stanti�l interest ir� the outcome of the procee��ir�g; for e>:�mple, the owners or accupar�ts of property locat�� ir� close pro:;imity to the licer�se�� premises may have sut�st3r�tial ir�terest in tT�ie outcome of the proceedir�3s. ' The licer�see then ai•�ues that the City 31rea�jy �1•35 set 3 star��j3r�j to determir�e wh�t is a ' sut��.tar�tial ir�terest' ar�d what is ' ir� rlose pro::imity' , ir� that. Co��e 5ec. 411 .04( b) (2> requires that cor�sent of GOY. of the occup3r�ts ar�d_ owr�ers _of property_ within two hur��Jred i'eet of- thp - licer�se�j premises m��st cor�ser�t t�pfore the City Co��r�r_ il will consider issuir�� ar� er�tertair�mer�t license in premises sut�ject to ar� on-s31e liq��or licer�se. The Admir�istrative Law J►�d3� re jects the ].icer�see's 3r��mer�t th3t testimor�y m��st t�e limite�j to those persor�s who owr�� or occupy property witt�in two hundred feet of the licer�setl premises. Or�ly two r�ei3ht�orhoo�j I`E51{�(3f�t5 testifie��; or�e testified �s ta his observatior�s of the Belmont R�r p3rkir�3 lot ar�d er�viror�s; the other lives across the street from the t�ar �r�d testifie�J re33r�Jir�g his observatior�s of the same �reas. There was r�o claim of s��rprise with respect to the cor�ter�t of this testimony ar�d it met the star�dar�i of relevance and materiality_ _ which 3overn a��missit�ility. Allegation Or�e - Alleg3tior� Or�e ir� the Notice of He3rir�� alle3es the '��r�l3wful sale of dr��gs ir� the parkir�a lot of the license� premises by ar� emplayee of the licer�see or� or about i�ovember 1C�, 1987. ' Tt�e evidence reflects that or�e of the �selmont R�r employees , k3r��y P3pe, possesse�j an��/or sol�� m�ri j��3r�a xr� the Reln�or�t Rar p3rk.ir�g lot on Noven�t�er 10, 1987, ar�d tt�at Randy Yape a3s preser�t when �r�other empinyee, L�et�ra Fnx, possessed n�ari juar�a ir� the p3rkir�g lot ir� Jar�u�ry or February, 1988. kan��y Yape w�s off-��uty wher� the first ir�cident occ��rre�� t�ut nevertheless w�s susper�de�i from emFloyment .as � result of riis involvemer�t with ��r��3s. Uebra Fo>; simil3rly w3s fir�e�� and ' susper�ded per Belmont policy �s � result of her possession of p�.ari juar�a. k3r��jy Yape was �ismisse� due to his prese��ce �jurir�3 trie secor�d dru3-related incident with Det�ra Fox . , ' The Administrative L�w J��d3e rJis3grees with the City's argumer�t " that t�e facts 'show ar� attitude or outlook or� the p3rt af eniployees wtiich roUl� or�ly have come from m3n3gement . ' There has t�eer� r�o char�3e ir� t�ar policy� with respect to employees 3n�i rJri.i3s, ar�� the policy p��r�ist�es the use of r�r��gs ir� a��itior� tn whatever criminal sar�ctior�s m�y t�e imposed or� the user . Une in��ivi�jU•3I � kan��y Y3pe , seems to have t�een 3 cat3lyst ir� the or�ly drug-rel3ted ir�cider�ts cite�i, ar��i he was fired t�y the Pelmor�t. The City f�rrther ar3ues that tF�e 3t�ove facts show that the licensee did r�ot m.3ir�t3ir� or�Jer ir� his p13ce of t��sir�ess . Co��p Sec. 909.08(5) . Th� licensee ar3ues th3t t�e ' pl�ce of b��sir�ess ' was the licer�ser� premises , while the 3ctivities occ��rre�1 ir� the parkir�3 lot. The A�Jmir�istrative I.�w Jud�e fir�d� •tli�t ' p13ce of business ' is Dro��er th�r� ' licer�se�j premises ' , ar�d inclu�jes tF�e parkin� lot. However , the ir�cider�ts were s��fficier�tly isol3te�� ar��j p��nishe�j so that it car�r�ot k�e sai� that there was failure to mair�tair� order with re3ar�d to dr��3-relate�j 3ctivities. The City ar3ues that Sec. 409. 14 (a) imputes actior�s of employees to tt�e licer�se�older . The licer�see points o��t, hnwever , that vicarious respor�sit�ility applies or�ly if the acts of his employees 3re 'w.ithzn thp field of their empl.oyn�er�t ' , ' ir� furtherar�ce af his master 's business' an�i 'withir� the scape of his ereploymer�t' . 5tatp v.._Sot,elm3r�., 271 N.W. 484, 48� (Mir�r�. 1937) . F'ape was off-�duty when he possessed druqs in the Belmor�t Par{;in� lot. The City rJi�J not estat�lish whether I�ebr3 Fox was on-duty wher� cau�ht with mari juana. I1et�ra Fox, whose t�eh3vior w�s r�ot mentior�ed ir� the Notice nf He3rir�3, w3s employed t�y P�ncir�3 An3els r3ther than MEL, Ir�c. kespor�der�t's E:<. A. Ir� �ny ever�t, Pape ' s ar�d Fo.:' s acts m��st t�e cor�sirJered ir� cor�j��nctior� with the puni�.hment 3rJmir�istered t�y t�e L�elmor�t mana9emer�t . The A��mir�istr3tive Law J��j9e �nes r�ot aelieve tt�3t the isolated ir�cidents involvir�3 P3Fe amount to a '�J3r►3er to the put�lic health, s�fety ar�� welfare. ' Sec. 310.OG(t�) (7) . TPie City ar3�.�es t�3t t�e ir�ci�ier�t ir�volves a violation o� 13ws �3vir�g 3 re�sor�atrle rel3tior�ship to the licer�se�j activity. Sec. - - 310.OG(t�) (G) There is r�o evider�ce to ir�dicate that the ��r�� l�ws are ' rel•3te�j' to the license�j 3ctivity--r�o evi��er�ce tt�at dr��3 artivities are a partic��lar prot�lem at liq��or e�.tat�lis�mer�ts , for e>:ample. �lor �oes P3pe' s activity rise to the level of a r�uis3r�ce. Ir� ar�y ever�t, there is no vicario��s liat�ility provision ir� 5t . Y3u1 Leg. Co��e Sec. 310. Alle3atior� Two I�otice of Hearir�3 Alle3atior� Two 311eges ' Ci]r�terferer�ce with police officers ir� the` performar�ce of their �ssi3r�mer�t t�y ar� employee of the licer�se� on or at,out Jar�u3ry 14, 1988. ' t�3te amer�ded by stipulatior�) . Tt�e evider�ce reflects that a L�elmon�. employee, �erry hieinhofer , ��irJ in f3ct yell ir�appropri.3tely at 3n officer who was doir�� i�is jot� ir�vestigati.r�� possible prostit��tior� o��tsirJe the E�eln�or�t. However , m�r�:��emer�t � imme��iately apolo3i�ed prof��sely for tt�e employee's cor��ct, .�r�� - the employee .3pologize�� 3s well . Tt�is �.ir�� of ir�ci��er�t �135 not • occ��rre�� a�air�. A9air�, the Admir�istrative Law J��dge disa3rees with the City' s 3r3ument t�.3t Meir�hofer ' s actinr� shows 'an 3ttitude or o��t].00l; or� t�e part of employees wr�ich could or�ly� h�ve come from mar•�39emer�t. • The isol�te�j inci��er�t does r�ot cor�stitute 3 viol�tion of Ser. 909.08(�) , requi.rir�g a licer�see to m�ir�tair� or�er ir� his place of t�usir�ess. While Meir�hofer ' s act h13Y be impute�� to ti�e 1 icensee ur�der Sec. 409. 14(3) , it must b� cor�si��ere�J to�ether with the .�poingies , ar�d the tot3lity of the acts do not reflect t�ad moral ch3r3cter or� the part of the licer�see. • Since t�e licensee clearly did not cor�dor�e Meir��ofer ' s acts, he car�r�ot t�e p��r•�ishe�� ier chapter 310. Ir� fact, the evi.dence reflects a consistent patterr� of caoper3tior� with the police, ir�sasm��ch as the police patrol the Relmor�t re3ularly without ir�terferer�ce, ar�d the Helmor�t a�ar�agemer�t is respor�sive to police requests. Alle3ations Three ar��l Four i�otice of He.ari��g Allegation T�ree ir��jic.3tes t�e ' ��r�l�wf��l employmer�t t�y the licer�see of a mir�or for a se:;��al performar�ce ir� violatio�� of Mir�r�esot3 Stat��tes , section G17 .?4G or� or at�o��t Fet�r��ary 2, 1988. ' Alleg3tior� Four ir�dic3tes tF�at the licensee permitte�j 'a mir�or to er��.33e ir� a sex��31 perform3nce ir� violation of �iir�r�esota Statutes, sectior� G17.�4G, or� or at�out Fet,ru3ry �, 1�88, on or visihle ir� tt�e licer�se�� premzses . ' Ti�e evider�ce reflects that T.I�.M. was 13 years o1�J wher� i�ire� by Li�ncir�3 Ar�3els. She fille�j o��t r�o employment application. She lied at�out her �ge. She testifie�J th3t si�� was ask.e�j t�y N3r�cy Osterm.3r� whether st�e �►a�j her i�Jer�tificatior� card �r��J replied, 'No. ' Accordir�3 to T.D.�i.., Nar�cy U�termar� respor��JerJ t�y s�yin3, 'i13ke s��re yo�� t�rir�3 it ir� because yo�� nee� it with yo�� 3t all times. ' On the other i�and, Nar�cy Ostermar� testifie�j th3t T.U.M. ha�j 3 birth certifir3tion when hired or� Nov. 14, 1988. �fs. psterman' s testimor�y lacks cre�iit�ility in cert3ir� p3rticulars . For example , Ms . Ostermar� ir�sists ti�3t T.L�. M. was r�ot er�g33in3 ir� the activities descrit�e�� by t�e }�nlice or� the r�i�t�t of T. D.M. ' s 3rrest. No hirth certific3te was recovered or ir�trod��cer� in evi�ler�ce. �tevertheless, T.D.M. was - not a very cre�jit�le witness, either . It is certair� that she lied to Ms. Osterni�n abo��t her 39e in order to 3et a d3r�cir�3 jot�, 3r��j that she 1ie�j to the 'Ur�k�ar�k ' to get ar� I. L�. It also is ur�cert�ir� how seriously she too� the ir�st3nt procee�Jir��s. Far e>;ample, she 33ve a fur�r�y grin when testifyir�3 th3t the reasor� she was ��ar�cir�g �r�d �ave a false ider�tific�tion was t�eca��se st�e �ji�jr�' t w.3r�t to t�e a prostit��te. Fier ��eme3r�or su�3es.ted that the testin�or�y was a lie . The A+�mir�istrative Law ��3e rejects Ms . Osterm3r�' s testimony �r�d � �� - /�� roncludes that i�s. Ostermar� ask.ed for ider�tifiratior�, requested th3t ir�er�tificatior� t�e pro��uce�� ir� the f��ture, k��t didrti't ir�sist upor� it at the time of auditior�, relyir�g ir�stead or� T.D.i�. ' s . ' lie. ' The A�Jmir�istrative L3w Jud3e �Joesr�'t accept t�arter�der William Papes ' testimony that he checked T.U.M. 's i��entific3tior� every r�i��t aher� she worked. F�e �jidr�'t kr�ou what form of i��er�tific3tior� she user�, �r�d di��r�' t recogni�e the 'Unt�3r�k. ' c.�r��, statir�g that it was r�ot a very r�li�t�le source of i��er�tificatior�. Nancy Osterm�r� testified that she tho��3ht triis testimor�y w3s ir�correct, .�nd t��t ti�e policy of c�eckin� dar�cers ' I.I�. every time they d�r�ce�� w3s ir�stit��te� after the T.I�. M. ir�ci�ier�t. Mir�r�_,_St3t_,_G17.29G 5ut�d. 5 pro��ides that it is 'ur�lawful for a persor��to . . .eniploy . . .or permit . . .3 mir�or to er��.33e in . . .ar�y se:<ual performar�ce if the persor� kr�ows or has reasor� ta know that the cor��j��ct ir�ter�r�e�� is 3 se::�J•31 performar�ce. ' T . Ii.hi. , � mir�or , er�33ged ir� a se>:ual perform3r�ce or� �et�. 2, 1n88. Tt�e licensee 3r�j��es that 'the licer�see rJid r�ot employ CT . U.�f. 7 ; Liar�cir�g Ar��els, Ir�c. ' rJid. This 3r3��ment .�Fpe3rs to t�e a techr�ic3lity, t��t correct . MFL 3r��j Uar�cir�3 Ar�3els e.3ch 3ct thro��3h the same a3er�t, L��vid Pan. Wher� T . I�.M. was hired, U�vid ' F3r� w3s actir�g 3s 33er�t for L�3ncir�� Ar�3els . Wher� T. I�.M. was dar�cir��, t�owever , Llavid Far� was actir�g as 33er�t for the Belmor�t . Assumir�g for the sa�.e of 3r3��mer�t that the licer�see hirer.i T.D.t�. , the questior� t�ecomes whether he ir�ter�ded to hire a minor . The licer�see argues tii�t the City has failed to sust3ir� its t�urden of provin3 that the licensee ir�tended to t�ire a minor . Mir�r�_. St3t.. G17 .24G Sut��. 5 provides t�3t a mistake as to the mir�or ' s age is r�ot a �jefer�se. Even if the st�tute did r�ot impose 'absol��te liability' in re33rd to �ge, the ArJmir�istr�tive L�w Jud3e agrees with the City 's ar3umer�t that a re�son�k�le person woulr� h3ve ir�quired f��rther 3t�out T.U.M. ' s a3e, �jespit,e her m�ture appearance. However , the evider�ce rJoes r�ot s��pport a conclusior� th�t D.�vid F3n employe�j T.I�.�f. for t�e p��rpose of er�333in� in a sexual performance. He w3s preser�t at t�er 3uditior�; t�ut the recor�j does r�ot reflect w��t she w3s 3sked to �jo there , or or� the 'dar�ce f 1 oor . ' She d i dr�'t cor�verse wi th Fan at the a��Jitior�. T.U.M. testifie� t.�'13t •3 ' la��y showe�j her w�3t to do .and Cshe7 �Jid it' at the a��ditior�, b��t s��e also testified tha�L they '�ji�jr�' t tell CherJ t�ow to rJ3nce. ' Wh.3t she 3ct��ally ��id rJ��rir�3 the auditior� is r�ot reflected ir� the recor�J. Wt�ether the licer�see permitte�j T. [i.t�. , 3 mir�or , to er�g3r�e ir� a se•r,ual performar�ce is a differer�t iss��e. There is a prepor�r�erar�ce of evi��er�ce reflectir�3 th3t the licer�see, thro��17 its a�ents, �iid permit the mir�or to en3a3e ir� .� se;:��al performar�ce . The A��mir�istr3tive L3w ��j3e c3r� draw ir�ferences from circumstar�ti�l evi�ence. The E►elmor�t w3s stafferJ �ccordin� to need, ar��i some employee m��st liave r�oticed th3t T . I�.hi. w3s er�ga�in� in .� se:<ual perfor'mar�ce on the r�ight ir� question. Ur�e employee suppose�jly w�s checkir�3 �jar�cers ' I.D. ' s . T.I�.M. er��age+� ir� three separate se;•.ual performar�ces on that ��i�ht. ThEa licensee cor�seq.��er�tly viol3ted a st3tUte reasonably related to the lirensed activity. ��- r�'� � � It s��o��ld t�e r�ote�J th�t there 3re deficier�cies ir� the evi��er�ce . There is r�o evi��er�ce th3t T.L�.M. er�3•33e�j in -3 se::��1 perform.ance other th3r� or� Fet�. 2, 198E�. Iir�� er�forcen�er�t a3er�t5 : : typic311y m.3k.e two or three t��ys to 3et t�y the er�tr�pmer�t defer�se ar��i �nal.e their c3se with sufficient cert�inty to warrant actir�g in a pur�itive fashion; t,��t t�e st3r��jar�� repetitive ot�servatior�s were r�ot made here. This is r�ot 3 sitUatior� where she was observe� er�3a3ir�� ir� 3 se::��al perform3r�ce, man33ement was 3iver� r�otice, ar�d she was observe�� er�33gi.r�3 in the aame activities 33azr�. It wo��l�� have t�eer� easy for 3r� officer to go up to a G�rter�der t�etweer� dance perform3r�ces and as�, ' Iiid you see tll3t�� or otherwise est3blish Y.r�owle��ge to 3 certair�ty . It is r�ot .� situatior� where she testified th�t she was told to d3r�ce in � prohibiterJ way, or ever� that a�ar�a�emer�t w3tched her dance ir� a prohit�ited way. Wher� as�ed if L}avid F�n saw F�er " d�ar�cin�' (which may or may not h3ve me�r�t corr�uct prohibite� t�y statute) , T.li.M. respor�ded that Mr . Far� sits in the b�r , but she didr�'t k.r�ow if he watche�� her . She f��rther testifie�j th.3t Ii3vi�� Fan r�ever talked to her at�out dancin3, just tol�i her to 3et out of the b�r wher� she er�tered for pop 3r�d ci�arettes. The Agreemer�t with Uancin3 Ar�gels does r�ot cor�do��e activities � prohibite�j t�y law . Sec. 310.OG(9) provi�des tt�3t 3dverse actior� may be ta�en 3g3ir�st 3 licer�se if the ' . . . licer�see. . .h�s showr� t�y past miscor�duct. . .th�t s��ct� licer�see. . . is r�ot a persor� of the goo�j a�oral character or fitr�ess req��ire�� to er�33ge in a licer�ser� - - - activity, t�usir�ess or professior�. ' The evi�ier�ce with respect ta T .Ii.M. may reflect or� Ii3vi�� F3r�' s mor.�l ct�.3r3cter--or it m3y reflect his poor at�ility to mar�a9e a t�usiness . The City notes th3t there is 3r� ir�cir�er�t regardir►3 ar�other unrJer�3e employee which was not raised ir� t�e �lotice c�f Hearir�3. This inci�jer�t ir�volve�� a si.:teen-year-ol�j wi�o presente� two I.Ii. ' s that matrhed up. Or�e was a state I .U. , �r��J or�e was � copy of a hirth certific3te. Wtien the 51tU•3t10f1 w3s �iscovere�i, no c�ar3es were bro��i�t a3air�st the Clut�. The evirJer�ce is ir�s��fficier�t to cor�rlu��e that the Cl��t� was culpat�le ir� this ir�ci��er�t. The City does r�ot seriously argue that the activities described in Alle3atior�s Three or Fo��r 'have rre3ted 3 serio��s +�ar�ger to the p��blic health, safety or welfare. . . ' Sec . 310.OGtt) (7) . The T.Ii.M. ir�ci��ent ��oes r�ot rise to tt��t level . Alle3atior� Five Alle33tior� Five in the Notice of He�rin3 311e9es: 'The occ��rrer�ce of acts of solicit�tior� for prostit��tior� ar�d prostit��tior�-rel3te�j 3ctivities ir� ti�e licer�sed premises, . or� the parkir�3 lot behin�� the licer�se�j premises , ar��j in the imme�ji3tely ad jace��t area, al l of which cor�stit��te t 1 ) a nuis�nce, ar�� (2) create or h�ve cre�te�j a serious ��.3r�ger to the put�lic health, safety ar�d welfare. Such actior�s h3ve orc��rre�� or� m3r�y occ3sior�s throU3ho��t 1987 3r�d early 1988. ' The evidence reflects that there are numerous prostitutes � ir� the high-crime area of St�erburr�e ar�� Ur�iversity; that most of the prostitutes remain on the sidewalk. or at the er�trar�ce to the Bplmor�t p3r�ir�3 lot . Citi�er�s have t�eer� �jisturt�e�j t�y activities of prostitutes ir� th� parl,ir�3 lot, however . Pro�titutes and pimps ��se the t��r b��t tt�eir illicit 3ctivities 3re r�ot overt. Ir� Officer Lut�cher�'s opir�ior�, mar�3gemer�t is r�ot ir�terested ir�� solvin3 these prot�lems in 3r��j at�out the b3r . The A��mir�istr�tive Law �urJge characteri�es the situatior� as ar�e in which t��r ntiar�agemer�t has r�ot impe��e�j the police ir� their cor�trol and arrest fur�ctions , t�ut has t�een passive in its own activities ta ��isco��ra3e prostit��tinr� (e>:ceptin3 the 1.3st sever3l mor�ths ) . St. I'aul Le�is.. Code 908.08(G) provi��es that r�o ' licensee shall . . . permit the licer�ser� premises or ar�y room ir� ti�e s�n►e _ or ar�y 3djoir�in� t��ildir�3 or ar�y adjoir�ir�3 builrJir�� directly un��er his cor�trol to be ��serJ 35 3 resort for prostitutes . . . ' The E+elmor�t Cl��t� has t�eer� used as a resort for prostitutes. The questior� t�er� t�ecomes whether the licer�see ' permitte�� ' this to nappen. Ir� S3t�es v. Mp,ls_.,,, su,pra,, officers were propositior�ed ir� the t�3r or� ei3ht occ3sior�s over 3 �13If ye3r perio��, res��ltir�g ir� cor�victior�s, ar�d or�e three occ3sior�s, police witr�essed leavir�� the b3r couples W�'105E subseq��er�t arrests res��lte�j ir� cor�victior�s _ for prostitutior�. The t�ar represer�tative testified th�t he k.r�ew prostit��tes frequer�te�J his establishment 3n�� k.r�ew their ider�tity, t�ut cl3imed that �e ha�� r�o kr�owled3e of their havir�� solicite�j. The Court he1rJ: The mere preser�ce of persons of immoral character has t�een hel�J r�ot to violate a stat��te pro- hik�itir�3 the use of 3 t�3r �s a place to w�ich penple resort for purposes which 3re inj��rious to the put�lic morals, there t�eir�3 r�othir�3 ur�lawf��l 3k�o��t permittir�� s��ch persor�s to p3tror�i�e t�ars 3r�d rest��rar�ts ir� t�e at�ser�ce of proof th3t they - � _ cnmmitte�j viol3tior�s or� the premises. �lor is •3 sin3le �ct of solicitatior� er�oug� to j��stify � licer�se revocation ��r��er 3 5't.3tUtl wt�ich pro�it�its the . licer�=.ee from permittir�g the premises to become disor��erly. ' I_�., at 878. Ti�e_ Gourt cite� with approval cases st�tir�3 th�t 'i;here wac r�o s3fety ir� ignor3r�ce ' if proper ir�quiry wo��1�J 3vai1 , " ' the word 'permit' iaiplie�i no affirmative 3ct ar�� r�o ir�ter�t, t�ut mere p3ssivity, or 3r� �t�stainir�� from prever�tive actior�, ' �r��l cor�cluder� 'that where , .�s here, the evider�ce discloses th3t the licEnsee kr�ew� prostit��tes were frequer�tir�g his estat�lishmer�t, ar�d numerous cor�victior�s resulte�� from �CtS of prostitutior� soliciter� on -- - his premises, he is ct�ar3ed with �r�owle�3e or such , ��- ,�� activities ar��j further proof is not req��ire�� to s��stair� the revocatior�. ' Id. at 879. Ir•� t�is c�se , Officer h�eyer observe�j or�ly or�e prostit��te in the " t�ar , app3rer�tly ��oin3 r�othir�3 illeg3l . Officer L��tscher� w:�s the only witr�ess wtio testifie�j ti�.aZ tt�e t�.3r premises 3r� ��se�� by prostitutes for pickir�g up c��stomers, t�ut he ��i�� not mak.e any arrests ir� the t��r , presum3Gly t�ec3��se r�o 3ctivzty w�s nbserve�j ir�side which woul�� provi�ie prok�at�le ra�.tse for 3r� arrest. If Lhe activitips of the prostitutes ��i�J r�ot provi�je prot��k�le C•3USL f�01� an �rrest ar��J w�re ir��ctive ir�side the t�3r , it would be ir�appropriate to per�.3li�e the t��r m3r�agemer�t for ir�3ctior�. Cf_.. Sat��s v. Cit��_of_�1�1s_,,., s��,pr3. at 87a: ' C IJn the 3t�ser�ce af rJirect� evirJer�ce that �Jefer��jar�t ha�j k.r�owled9e of immar�l practices or► his premises, the illicit commerce w�s ir�d��l�ed ir7 so o�er�l,y,. 3r�� for s��ch � ler��tti of time th3t defer��j:3r�t m��st r�3ve k.r�owr� t�is hotel was beir�g used 35 a house of ill f�me. ' ( empt��sis 3��jed) . It is r�ot as if prostit��tes sho��t their ir�vitatior�s to customers. Sec. 310.OG(7) of the Code provides for �dverse �ction a�3ir�st � licer�see if the '�ctivities nf the licer�see ir� thE licer�se�i activity create or have created a serious dar��er to the public �ealth, safpty or welfare. . . ' While the prostitutior� activities d�scrit�ed are obnoxious, they do r�ot rise to the level of 'ser io��s �j3r�ger . " _ _ - �iinn. -St�t�, G09,79 -defir�es that a •put�lic r�uisar�ce occurs ..._.._.._._.._..._.._..__ wher� ' . . .by ar� act or failure to perforn� a 1E3a1 duty C3 persor�] ir�tpr�tior�ally . . . ( 1 ) . . . permits 3 cor�- � rJitic�n wt�ich ur�reasor�at�ly. . .er�d3r�gers the s�fety, health, morals, comfort, or repo�se , of any cor�si�lerat�le r�umt�er of inemt��rs of the F��k�lic. . . " The prostit��tior� 3ctivities �jescrit�e�j ir� ttiis case er��.3r�3ere�� citi�er�s' romfart or repose. Mi��n_ St�t: 649.79 is re3sor�3t�ly rel3te�� to the licer�se�� 3ctivity . _St. Pa��l Le3is . Code 310. OG(t�)_(G), So _ is Mir�r�. Stat. SG1 . 01 , wliich ��efir�e-s- a n��is3nce as • C�nythir�3] which is . . . ir��jecer�t or offer�sive to the ser�ses, or an ot�strUCtion to the free use af property, so as ta interfere with the comfort3t�le er�joymer�t of life or property. . . " The City has r�ot prove�J th3t the Beln�ont is the saurce of prostit��tior� in the area, r�or ��oes it h3ve to. The sit��3tior� �t - t�e Clut� car�stitutes a nei3ht�orhoo�l nuis�r�ce. There have t�eer� recer�t efforts tn correct the prot�lem by the Belo�or�t aianagement. �o long as the currer�t level of ��iliger�ce is ai3ir�tair�e��, r�o p��r�itivp action ir� the form of revoc3tior� or susper�sior� of the Belmor�t licenses r�ee�j be ta{:er�. However , corrective efforts t�y the Belmor�t man33emer�t ni�y be merely a respor�se to thi5 cor�tested case proceedir�3. Ad�iition311y, the f 3ct that the Relmont has t3k.er� steps recer�tly to cor�trol the r�uisar�ce doe��r�'t erase the fact that a r�uisar�ce has occurred. A recommenrJ3tior� for .actior� is m3��e to 5USt31fi tliese cnrrective a� — r � 3ctivities whici� seem to t�e effective ir� re��ciri� prastit��tior�-related activities ir� the Helmor�t Cl��t� an�� its _ parkir�g lot. � . C��rrer�t efforts to ti�hter� up the licer�sir�3 ordir�ar�ces alsc� �re la��rJable. Some q��estior�s that mi3ht t�e arJ��resse�j incl��je the following: What l�ws are 're3sonat�ly relate�i' to the licer�sed artzvity? Will the violation of ar�y crimin.31 l�w imp3ct or� a violator 's licer�se? Are or�ly. liquor l.aw vialatior�s 'reasor�3bly r�13te�j' to thp licer�sed activity^ If those �jraftir�� the ordir�3r�ces have same specific 13W5 ir� mir��, why not li5t the er:�mples? What cor�stitutes a 'serious' dar�3er to tt�e p��t�lic health, s3fety, or welfar�? What t�ehaviors evir�er�ce a lack of ' �ood mor�l character '? Ti3hter or��in�r�ces will provi��e more gui�iar�ce to t�3r owr�ers. c3 .�-��* - ��'- �� STATE OF MINNESOTA �ECE�VEp IN COURT OF aPPEALS SEP 121988 ' . ------------------------------------� : C/Tr��E�k MFL, Ine. , a Minnesota Corporation, ) COURT OF APPEALS d/b/a The Belmont Club, and , ) NUMBER: Cy_ �� -�g�� David S.F. Fan, ) ) Petitioners, ) OFFICE OF ADMINISTRATIVE ) HEARINGS NUMBER: vs• ) City-SS-021-CG ) 53-2101-2�427-G City of Saint Paul , a Minnesota ) municipal corporation, and the ) City Council , consisting of James ) DATE OF MAILING Scheibel, President, Kiki Sonnen, ) NOTICE OF DECISION: Bob Long, Tom Dimond, Roger Goswitz, ) September 8, 1988 Biil Wilson and Janice Rettman, ) ) Respondents. ) ) ------------------------------------ AFFIDAVIT OF MARY F. SEYMOUR STATE OF MINNESOTA) ) ss. COUNTY OF RAMSEY ) Mary F. Seymour, being first duly sworn, deposes and says that: 1 . She is �a lawyer licensed to practice law in the State of Minnesota and is a shareholder in the law firm of Cochrane & Bresnahan, P.A. 2. The law firm of Cochrane & Bresnahan, P.A. represents the petitioners in these proceedings. 3• By memorandum dated September 2, 1988 and by oral request to the City Couneil during the final action on September 6, 1988, your Affiant requested that, if the City Council passed a resolution revoking petitionerst licenses, �.., , . that the City Council stay the effectiveness of the resolution until a final decision is received from all appeals. The City 1 • Couneil denied the stay and passed the resolution that is now the sub�eet matter of the petition for writ of certiorari in this matter. 4. Your Affiant believes that the refusal by the City Council for Saint Paul to grant sueh a stay constitutes an additional unconstitutional prior restraint upon Petitioners� right to freedom of expression and a violation of due process as - - guaranteed by the First and Fourteenth Amendments to the United States Constitution and Article 1 , Sections 3 and 7 of the Minnesota Constitution based upon an irrebuttable presumption, and passed _without regard to the City Couneil' s failure to provide - minimum procedural safeguards including, but not limited to, the maintenance of the status quo until such time as there can be a final udicial determination as to whether petitioners' rights to freedom of expression have been and are being violated. FURTHER, YOUR AFFIANT SAYS NOT. a y F Seymour - Subscribed and sworn to b e f or e me th i s 12 t h "^^^^^"^^^^^^^^^^^^^^^^^^^^^^^^^�+^^• � DAWN J. PROULX -�� NOTART PUBIIC-MiNNESOTA day of September, 1988• , RAMSEYCOUNTY Mr oon,m,Erplr��M�y �A,��ai •v vv�wwwvW■ otary P ie -2- � 'y �� COCHRANE & BRESNAHAN, P.A. ATTORNEYS AT LAW 24 EAST 4th STREET SAINT PAUL, MINNESOTA 55101-1099 JOHN A. COCHRANE JAMES R. BRESNAHAN TELEPHONE STEWART C. LOPER 612/298-1950 MARYF.SEYMOUR CABLEADDRESS:COBRA RONALD D.ALLEY� September 2� �9�� ' BRIAN N.TODER" 'Also admitfed�n Texas "Also admitted in Colorado Albert Olson City Clerk for . the City of St. Paul 386 City Hall 15 W. Kellogg Blvd. St. Paul , MN 55102 Re: In the Matter of the On-sale Liquor License for the Belmont Club (City-88-021-CG, 53-2101-2427-G) Dear Mr. Olson: Enclosed herewith for filing please find the original Respondentfs Exeeptions to Findings of Fact, Conelusions and Recommendation for the above entitled matter. Yours truly, COCHRANE & BRESNAHAN, P.A. By: � Mary F. Seymour MFS/plc Enclosure ee: All St. Paul City Couneilmembers Philip Byrne/Assistant City Attorney Administrative Hearings Office Ms. Carol Grant R£CEIVED SEP 0 21988 CITY CLERK