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99-816Qi�tt7��tlt Presented B� Referred To RESOLUTION Council File # 99 - g 1 !, Green Sheet # � �3 1 WI�REAS, the Office of License, Inspections and Environmental Protecrion (LIEP) 2 recommended denial of an off-sale liquor license application by Vernon W. Crowe d/b/a Selby 3 Wine & Spirits , for the premises at 778 Selby Avenue, pursuant to Minn. Stat. §340A.412, subd. 4 4(5), asserting that the Dayton Residence at 340 Dayton Avenue was "an institution under the 5 supervision or control, in whole or in part, of the Commissioner of Human 5ervices"; and 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 WfIEREAS, a hearing was held before Administrative Law Judge George A. Beck on June 3, 1999 and he issued Findings of Fact, Conclusions of Law and Recommendation on July 13, 1999 in which he determined that the Dayton Residence was not the type of institution contemplated by §340A.412, subd. 4(5), and recommended issuance of the off-sale liquor license; and WIIEREAS, at the City Council hearing on August 11, 1999, LIEP did not file exceptions to the Report but recommended the adoption of the ALJ's Report and Recommendation; now, therefore, be it RESOLVED, that the Council of the City of Saint Paul, after due deliberation based upon all of the files, records and proceedings herein, adopts the ALJ's Findings, Conclusions and Recommendation, and the same shall be attached and incorporated herein by reference; and be it CITY OF SAINT PAUL, MINNESOTA ' y 99 -�i� 2 FURTHER RESOLVED, that the application of Vernon Crowe, d/b/a Selby Avenue 3 Wine & Spirits for an off-sale liquor license at 778 Selby Avenue, is hereby approved and said 4 license shall be issued. 6 A copy of this Resolution, as adopted, shall be sent by first class mail to the Licensee, his 7 attorney and the Admanistrafive Law Judge. Requested by Department of: Ey: Form Apprave� by City Atto €y'� _J sy: i y�_ Approved by M or for Submission to Covncil By: By: Appsoved by May te � qq BY: Adopted by Council: Date S l� `� Adoption Certified by Council S etary `t9 - s�b DEPARTMENT/OFFICE(COUNCIL OAiE WmpTEO City Council Offices $-13-99 GREEN SHEET No 63434 COMAC7 PERSON & PFIONE ��#e �nrclauoaze Jerry Blakey, 26b-8610 ot,.R..a.w¢c.oa anconxx MUST BE ON COUNCIL AGENDA BY (OA'fE) ❑ ❑ August 25, 1999 �" MUYBERFOR tlIYATiOMtEY Grvd.flfK ROUTING � ❑RYNfILLfFME4GBt ql�lllWLiEPVIACCTG ❑ WYORIORASpYfNlII ❑ . TOTAL # OF SIGNATURE PAGES (CLJP ALl LOCATIONS FOR SIGNATURE) C710N REQl1ES7m Approving application for an off-sale liquor license by Vernon Crowe, DBA Selby Avenue Wine and Spirits, at 778 Se1by Avenue. RECOMMENDATION Approve O a Rejed (R) VERSONALSERVICE CONTRACfS MUSTANSWER THE FOLLOWING Q1IESTIONS: 1. Has this persoNfirm ever worked under a wntract tor Mis department� PLANNING COMMtSStON vES w0 CIB COMMITTEE 2. Hes �his pereon/firm ever been e Cily empbyee� CIVILSERVICECAMMISSION VES NO 3. Does ihis pxsoNfirm possess a sitill not namaltypossessetl by any curteM cdy employee? YES � a. Is Mis persoMrm a taro�d `rendoR YES NO Fxplain all yes answers on sepaiate sheet and attach to preen shee[ INITIATING PROBLEM ISSUE, OPPORTUNITY (Whq Wliat, When, WhNe, Why) ADVANTAGESIFAPPROVED ��'•� k'i��E�A�� V�:��:�'u7� . , _ _ . AUG 1 3 19�9 DISADVANTAGES IFAPPROVED � DISADVANTAGES IF NOT APPROVE� � TOTAL AMOUNT OF TRANSACTION S COST/REVENUE BUDGETED (CIRCLE ON� YES NO FUNOING SOURCE ACTMTY NUMBER FINANGPL INFORMATION (IXPlA1N) _ OFFICE OF THE CITY ATTORNEY Clayton M. Robinson, Jr., CityAnanrey 9g-$�� ua � CITY OF SA1NT' PAUL Norm Coleman, Mayor May 11, 1999 Civi[Division 900CiryHall Telephone:657166-8710 I S Wes1 Kellogg B/vd Facsimile: 65! 298-5619 Saint P¢vl, �nnesot¢ SSIO2 NOTICE OF COUNCIL HEARING ��ts�;;� ��;� ��, Mr. Kenneth M. Bottema 3001 Hennepin Avenue South, Suite 309B Mimieapolis, Minnesota 55408 RE: License application of Vernon W. Crow d/b/a Selby Wine and Spirits For the premises located at 778 Selby Avenue in St. Paul Our File Number: G99-0154 Dear Mr. Bottema: , �, � � 1�g9 r ;�",Ff�."`��', ;CL�v�r:�?'?'i�c.:.a JUL 1 � ��' Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, August 11,1999, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opporhuiity to file exceptions to the report with the City Clerk at any time during normal business hours. You may also present oral or written azgument to the council at the Hearing. No new evidence will be received or testimony taken at this hearing. The Council wiil base its decision on the record of the proceedings before the Administrative Law Judge and on the arguments made and exceptions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its judgement and discretion. Sincerely, �� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Chrisfine Rozek, LIEP Carmen Berg, Executive Director, Summit-University Planning Council, 627 Selby Ave., St. Paul, MN 55104 °Iq-gll. 1-2111-12199-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY COUNCIt OF THE CITY OF SAINT PAUL In Re the License Application of Vernon W. Crowe, d/b/a Selby Wine & Spirits, for the Premises Located at 778 Selby Avenue in St. Paul FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION Administrative Law Judge George A. Beck, serving as a hearing examiner for the City of St. Paul, conducted a hearing in this matter beginning at 9:30 a.m. on Thursday, June 3, 1999, at the St. Paul City Hall. The record closed upon receipt of the final written memorandum on June 30, 1999. The Applicant, Vernon W. Crowe, was represented by Kenneth M. Bottema, Esq., 3001 Hennepin Avenue South, Suite 309B, Minneapolis, Minnesota 55408. The St. Paul O�ce of License Inspections and Environmental Protection (LIEP) was represented by Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102. NOTICE This Report is a recommendation, not a final decision. The St. Paul City Council wiil make the final decision after reviewing the record and may adopt, reject or modify these Findings of Fact, Conclusions and Recommendations. Under § 310.05(c-1) of the City's Legislative Code, the City Council wiil provide the Applicant the opportunity to present oral or written argument to the City Council before it takes final action. The parties should contact the St. Paul City Council to determine the procedure for presenting argument. STATEMENT OF ISSUE The issue in this case is whether or not the City of St. Paul should grant an off-sale liquor license to the Applicant for 778 Selby Avenue. Based upon the evidence and argument in the record, the Administrative Law Judge makes the following: aq-S�c. FINDINGS OF FACT 1. Vernon W. Crowe submitted an application to the City dated Ocfober 5, 1998, for an off-sale liquor license at 778 Selby Avenue in St. Paul, doing business as Selby Wine & Spirifs, Inc.� 2. The proposed location is approximately 340 feet from fhe Dayton Residence located at 340 Dayton Avenue. 3. The Dayton Residence is a residential treatment program for aduits with mental illness. It is licensed for 26 beds. It is 100 percent funded by the State of Minnesota. 4. 7he Dayton Residence is licensed by the Department of Human Services (DHS). DHS makes a site visit to the facility every two years to review its staff, procedures and services. The treatment for residents of. Dayton Residence is funded through consolidated mental health grants which are allocated by DHS to Ramsey County. Room and board at the faciliry is funded through individual client grants. 5. The Dayton Residence is administered by a qualified person licensed by DHS. DHS personnel are not present day to day at the residence. The Department has authority to step in and supervise at the residence if necessary. 6. DHS classifies the Dayton Residence as an institution for mental diseases (IMD) which is defined under federal law to be "a hospital, nursing facility, or other institution and more than 16 b�ds, that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services ° 4 7. The Dayton Residence is not a state hospital, training schooi, reformatory or prison. 8. On �prif 8, 1�99, P/ir. Lrowe was issued a iVoiice of Proposed Deniai of License Application. The sole grounds of the denial was that the proposed location for the off-sale liquor license was within 1,000 feet of the Dayton Residence. The notice advised Mr. Crowe that he was entitied to a hearing 5 ' EX. i. Z Ex. z. ' 42 U.S.C.1396d. ` Ex. 5. 5 Ex. 3. � aq-�� 9. Mr. Crowe requested a hearing and a Notice of Hearing was issued on May 3, 1999, setting the hearing for June 3, 1999 6 10. Two members of the public testified at the hearing in support of the application. 11. LIEP had no other objections to this application apart from its proximity to the Dayton Residence. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. The St. Pau! City Co�ncil and the Administrative Law Judge have authority to conduct this proceeding and to make Findings ofi Fact under Minnesota law and the St. Paul City Code.' 2. The City of St. Paul gave Mr. Crowe proper and timely notice of the hearing in this matter. 3. The burden of proof in this proceeding is upon the applicant. 4. Minn. Stat. § 340A.412, subd. 4(5), prohibits the issuance of an intoxicating liquor license: within 1,000 feet of a state hospital, training school, reformatory, prison or other institution under the supervision or control, in whole or in part, of the Commissioner of Human Services or the Commissioner of Gorrections; 5. The applicant has demonstrated that the Dayton Residence is not an institution under the supervision or control of the Commissioner of Human Services. 6. The proposed location at 778 Seiby Avenue is not in violation of Minn. Stat. § 340A.412, subd. 4(5). 7. The exhibits attached to the appiicanYs brief are stricken from the record. Based upon the foregoing Conciusions, the Administrative Law Judge makes the following: 6 Ex. 4. ' St. Paul Legislative Code § 310.05-.06; Minn. Stat. § 1455; Minn. Stat. § 340AA 15. 3 _, . q4 -$�t. RECOMMENDATION IT lS HEREBY RESPECTFULLY RECOMMENDED: fhat the City Council of the City of St. Paul approve the off-sale liquor license application of Vernon W. Crowe, d/b/a Selby Wine & Spirits. Dated this 13 day of July 1999. �o ��-_ GEORGE A. B :administrative Law Judge Reported: Taped-no transcript prepared. MEMORANDUM The City of St. Paul disapproved the off sale liquor license application of Vernon W. Crowe based upon its good faith determination that the proposed location was within 1000 feet of an institution under the supervision or control of the Commissioner of Human Services, namely, the Dayton Residence. The Dayton Residence is a 26 bed residential treatment program located at 340 Dayton Avenue in St. Paul. lt is licensed by the Department of Human Services which conducts site visits at the facility and funds the facility. This case presents a question of statutory interpretation, namely, whether a residential treatment program is an institution under the supervision or control ofi the Commissioner of Human Services, within themeaning of Minnesota fiquor law. The objective of statutory interpretation is to ascertain and effectuate the intention of the legislature 8 The applicant must demonstrate that its proposed location at 778 Sefby Avenue complies with the statute set out at Concfusion No. 4. He first asserts that the Dayton Residence is not an institution within the meaning of the statute. He points out that Minnesota law does not define ihe Dayton Residence as an institution but describes it as a"residentiai program". "Institution" is not defined in Minnesota law. The City notes that words used in the statutes are to be inferpreted according to their plain and ordinary meaning. It points out that one dictionary definition of institution includes "a public or private place for the care or confinement of inmates, esp. mental patients or other disabled or handicapped persons. It is also defined as "a place for the care of persons who are destitute, 8 Cummings v. Koehnen, 556 N.W.2"" 586, 589 (Minn. App 1996) 9 Minn. Stat. § 645.08(1) 10 Random House Dictionary of the English Language, (2°' Ed. Unabridged 1987) 4 � o�q - 81�. disabled, and mentally ill." The City argues that the Dayton residence is a building used for the care of inentally ill adults and therefore falls within the dictionary definition of "institution". The Cify also cites case law from other jurisdictions that interprets the word "institution" . As the City acknowledges, however, that case law is necessarily specific to the sfatute being examined and does not provide much precedent for Minnesofa liquor law. It does not appear that the legislative intent was to include residential facilities within the prohibition contained in Minn. Stat. § 340A.412, subd. 4(a)(5). At the hearing the City relied upon the federai definition contained in a regu{ation that classifies the Dayton Residence as an institution for mental disease. That definition, however, was adopted for the impfementation of federa{ faw decisions, such as medical assistance funding, and has no particular applicability to Minnesota fiquor iaw. The City also argues that because the word institution as used in the statute is not modified by words such as "similar" or "such", the question is not whether the other institutions are sufficiently like state hospitals, training schools, reformatories or prisons, but simply whether they are an institution of any kind. Ftowever, the legislature chose to specify "other' institutions rather than "every" institution. Furthermore, this argument ignores the legal principle of ejusdem generis, which is codified in Minnesota Statutes. This canon of construction provides that "general words are construed to be restricted in their meaning by preceding particular words." For example, in a recent case the Minnesota Supreme Court had to decide whether a blood bank was inciuded within the category of "a hospital, sanitarium, nursing home or other institution for the hospita�ization or care of human beings." 7he Court noted that by listing hospitals, sanitariums and nursing homes before the more generat "other institutions", the legislature indicated an attempt to inciude only those institutions which share common characteristics with the specific institutions listed. The word institution, therefore, cannot be interpreted without reference to the preceding particular words. State hospitais, training schoofs, reformatories or prisons are distinctly different from residential facilities commonly located throughout communities. The facitities cited are afl ptaces of confinement. Another dictionary definition of institution is "a place of confinement, as in a mental asylum". it seems likefy that the legislature intended this prohibition to apply to institutions similar to those specifically named where inmates or patients are confined and separated from the community. The applicant also argues that the Dayton Residence is not under the supervision or control of the Commissioner of Human Services. He suggests '� American Heritage College Dictionery (3r Ed. 1993) � Minn. Stat. § 645.08(3) " Kaiser v. Memorial Blood Center of Mpls., Inc. 486 N.W2d 762 (Minn 1992) 14 486 N.W.2d at 766 15 American Heritage College Dictionary, (2" Ed., 1982) 5 _ . _ �y_�'1` that licensure is different from supervision or control. He cites a dictionary definition of supervise as "to have the charge and direction of; superintend." A dictionary definition of "control" defines it as "to exercise authoritative or dominating influence over; direct° �� He notes that department pecsonnet testified that the department is responsible for monitorinq the program and argues thaf this is not supervision or control. The City points out that the Department of Human Services conducts background investigations on staff, investigations of complaints, does sife visits, adopts ru�es setting standards for the facility and has the authority to assume control of the program if necessary. It points out that the statute talks about supervision or control "in whole or in part" which implies something less than full management or staffing by the department. it notes that the statute couid have specifically stated that it only applied to institutions owned, operated or stafFed by the department, but does not do so. As noted above, words in statutes are to be construed according to their common and approved usage.� The common dictionary definition suggests that the legisfature intended that the commissioner have charge of the institution, or direct the institution, in order to bring it within this prohibition. The commissioner clearly supervises and controls state hospitals, for example. The departmenYs licensing and enforcement functions as described in this record do not rise to that level. Since the proximity of the Dayton Residence was the only objection presented by the City to this application, it is recommended that the City Council approve the application. The applicant submitted four exhibits attached to its post-hearing memorandum. The City objected to their inclusion in the record. Since these exhibits were not offerp� �` *�� hear:.y and the City did not have an opportunity to review or object to the exhibits, they must be stricken from the record. C��i. 16 American Heritage Dictionary (1999) "American Heritage Dictionary (1999) 18 Minn. Stat. § 645.08(1) 0 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS �I 100 Washington Square, Suite 1700 G�--� �P 1 �0 Washington Avenue South � Minneapolis, Minnesota 55401-2138 July 15, 1999 Fred Owusu, City Clerk 170 City Hall 15 West Kellogg Boulevard St. Paul, Minnesota 55102 Re: In the Matter of the License Application of Vernon W. Crowe d/b/a Selby Wine & Spirits for the Premises Located at 778 Selby Avenue in St. Paul, G99-0154; OAH Docket No. 1-2111-12193-3. Dear Mr. Owusu: Enclosed is a copy of the tape recording from the hearing in the above referenced matter held on June 3, 1999. The record was returned to you on July 13. Sincerely, ; ��2� Sandra A. Haven Administrator of Office Services Telephone: 612/341-7642 Enc. Providing Impartial Hearings for Government and Citizens An Equal Opportunity Employer Administrative Law Section 8 Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 % F i _ T � -- � : �. .' � .. .. .. ,. . ,�'�_. � �� ': , ✓F� �m\ j.; y � � ✓ � ,,"�F'�.v . . �-�. �7' � tl�� ^� � STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS �n ��1� 100 Washington Square, Suite 1700 �� 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 ��CE��E� July 13, 1999 JUL 141999 c�� c�� Fred Owusu, City Clerk 170 Ciry Hall\ 15 West Kellogg Blvd. St. Paul, MN 55102 RE: In the License Application of Vernon W. Crowe, d/b/a Selby Wine & Spirits File No. 1-2111-121199-3 Dear Mr. Owusu: Enclosed herewith and served upon you by mail is the Administrative Law Judge's Findings of Fact, Conclusions and Recommendation in the above- entitled matter. Also enclosed is the official record, the hearing tapes from which will be sent to you under separate cover. Our file in this matter is now being closed. Sincerely, < �>��1-� � � iK,�e °°��' GEORGE A. BECK Administrative Law Judge Telephone: 612/341-7601 GA :cr cc: Kenneth Bottema Virgaaia Palmer Providing Impartial Hearings for Government and Citizens A Eq ual Opportunity Employer Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 "(� `,�r . iy�v^ " CITY OF SAINT PAUL — �- OFFICE OF TF� CTI`P ATTORNEY / f� ClaytonM Robinson, Jr., CiryA#arney ( 7(�i$ � ,�{� Y Civil Division NormColemmt,Mayor t?^ �"�! �'? F,,; �'' �'j 400CityHaZ1 Telephone:651266-8710 "�" �" �. v ]5 West Kellogg BZvd Facsimile: 657 298-5679 � • � - - = Saint Paul, Minnesota SSIO2 Y.. ' . J _ . � i�" f:J'.: June 29, 199 The Honorable George A. Beck Adiniuistrafive Law Judge Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN 55401 RE: In the Matter of the License Application of Vernon W. Crowe, dlb/a Selby Wine & Spirits Dear Judge Beck: Enclosed please find a copy of the City's Fina1 Argument in the above-entitled matter. I note that the case was incorrectly identified in the caption on the CiTy's Proposed E�ibit List. A copy of the Fina1 Argument has been served by mail upon Mr. Bottema, and a copy was sent to him via facsimile on today's date. Sincerely, ��/�� Virginia D. Palmer Assistant City Attorney cc: Kenneth Bottema r OFFICE OF THE CITY ATTORNEY �('j �� Claylon M. Robinson, Jr., City Attorney `��. Mr. Kenneth M. Bottema 3001 Hennepin Avenue So., St. 309B Minneapolis, MN 55408 CivilDivision �, C !� ^ ( � � _- �� 400CityNall Telephone: 651266-8710 ""—' �--� ISWest%IloggBlvd Facsimile:651298-5619 �, � ,� ,. � „ ,� vj Sain! Paul, Minnesola 55102 .irV..i.�..� Y.� ��b/ t „ ALi' i� r �. - ,.,.i ��.. RE: In re the license application of Vernon W. Crowe, d/b/a Selby Wine & Spirits Deaz Mr. Bottema: Bnclosed and served upon you by United States Mail please find the City's Final Argument in the above-entitled matter. Please feei free to contact me lf you have any questions. CITY OF SAINT PAUL Norm Coleman, Mayor Wr June 29, 1999 Sincerely, �� Virgim Assistant City Attorney cc: The Honorable GeorgeA. Beck I a��$�� STATE OFFICE OF ADMINISTRAT'IVE HEARINGS rY =- �' ='' '" � ��,�_ FOR TI� COUNCIL OF THE CITY OF SAINT PAUL �= ��: � �- �. = �� -. ;.�,..:.:.',� . i:�� .. :�� In re the license application of Vemon CITY'S FINAL ARGLIMENT W. Crowe d/b/a Selby Wine & Spirits BACKGROUND This matter involves an application for an off-sale liquor license by Vemon Crowe, dibla Selby Wine & Spirits for the premises located at 778 Selby Avenue, in Saint Paul. The issue to be determined is whether the presence of the Dayton Residence, located at 740 Dayton Avenue, prohibits the issuance of this license in light of Minn. Stat. §340A.412, subd. 4(a)(5), which prohibits the issuance of an intoxicating liquor license "within 1,000 feet of a state hospital, training schooi, reformatory, prison or other insritution under the supervision or control, in whole or in part, of the commissioner of human services or the commissioner of corrections." A hearing was held on 7une 3, 1999, at which time the City presented the testimony of three witnesses, and submitted five e�ibits. The license applicant did not submit e�ibits nor did he offer testimony, although two citizens at the hearing spoke in support of the application. The license applicant has submitted three docutnents with his memorandum which were not introduced at the hearing, and the City asks that these be stricken from the record. -1- ��,$�L TESTIMONY AT THE HEARING At the hearing, the City presented testimony of Christine Rozek, the Deputy Director of the Office of License, Inspections and Environmental Protection, as well as testimony of Jerry Kerber and John Hastings of the Minnesota Department of Human Services. Ms. Rozek testified that she reviewed the application for the off-sale into�cating liquor license submitted by Vemon Crowe, d/b/a Selby Avenue Wine & Spirits for the premises to be located at 778 Selby Avenue, and that it was initially believed to be in compliance with all of the applicable laws and regulations related to liquor licenses. She testified that after nofice was sent that the application was in arder and that notification was being sent to community groups and neighborhood residents, the existence of the Dayton Residence was brought to the attention of LIEP. At that point, she contacted the Department of Human Services and leamed that the facility was licensed by the Department of Huxnan Services as a Rule 36' facil3ty for adults with mental illness. It was a residential facility with room for twenty-six individuals. Measurements done by the LIEP staff indicated that it was 340 feet between the Dayton Residence and the proposed location for Selby Wine & Spirits. Parties have stipulated that the measurement of the distance is not at issue. The City presented testimony of Jerry Kerber, the Director of Licensing for the Minnesota Department of Human Service. Mr. Kerber testified that the Dayton Residence is a residential program for mentally ill adults licensed by the Department of Human Services. The licensing is done under Minn. Stat. §245A.01-245.16 and Minnesota Rules 9520.0050-.0670. 'The reference to a"Rule 36" facility apparently is to an old numbering system which e�sted for the rules relating to residential facilities. Those Rules aze now found at Minn. Rules. 9520.0050-.0670. -2- a �,�� The Department has, pursuant to the licensing statute and rules, requirements for the personnel staffing such a residential treahnent facility (the staff qualifications and ratio), the type of treatment services, trainang requirements for staff, responsibility for perfonning background crimival checks on staff and responsibility for investigation of Vulnerable Adult abuse reports. The Department makes site visits at least every two yeazs to perform a full review of compliance with all of the applicable rules and regulations. It provides the forms for reporting to the Department. The Department has a range of available tools for insuring compliance with the rules and regulations, including issuing correction oxders, assessing fines, issuing a conditional license or suspending or revoking a license. John Hastings also testified. He is with the Department of Human Services, and is a consultant to the State Crroup Residential Housing Program. Mr. Hastings testified that in addition to the licensing, the Dayton Residence receives money through the Deparfinent of Human Services, in the form of state money channeled through the county and Consolidated Mental Health grants. Mr. Hastings testified tt�at the money received by Dayton Residence has restrictions which are tied to its compliance with all of the rules and regulations relating to the operation of a residential treatment facility for the mentally ill. He also testified that residents of the Dayton Residence aze not eligible to receive medical assistance because they are considered to be residing in an"institution for mental diseases" as that term is defined by 42 U.S.C. 1396d. (i). City's E�iibit #5 is an Instructional Bulletin issued November 23, 19988 by the State Department of Human Services which lists facilities which aze considered to be institutions. The Dayton Residence is included under the name "Dayton Boazding Care Home" at the same address. NIr. Hastings testimony was that the Dayton Residence is still considered to be an -3- a �,�� "institution for mental diseases" and that its residents aze therefore ineligible for medical assistance. The license applicant did not testify nor did he submit any e�ibits. "Interested persons" were permitted to speak, and two individuals testified. One man testified that he believed that there were other off=sale liquor stores which were located next to similar facilities and that Mr. Crowe should be treated the same as other applicants. He offered no factual testimony as to the existence of any specific liquor store in Saint Paul which had been issued a license in violation of Minn. Stat. §340A.412, subd. 4(a)(5). BURDEN OFPROOF It is the license applicant who bears the burden of showing that it is entitled to a license and meets a11 the requirements of law for the issuance of the license. In re City of White Bear Lake, 247 N.W.2d 901, 904 (Minn. 1976). In this instance, applicant must show that the Dayton Residence is not an "institution under the supervision or control, in whole ar in part, of the commissioner of human services." ARGi.JMENT Despite the license applicant's azgument in his brief that the City it "advocating and fighting against Mr. Crowe for uuknown reasons", the issue to be determined in this matter is quite simple and straightforwazd. The Office of License, Inspections and Environmental Protection did not become aware of the existence of the Dayton Residence and Minn. Stat. §340A.412, subd. 4(a)(5) until after it detenmined that Mr. Crowe's license application was in order. Once they discovered the existence of the Dayton Residence, and did the necessary measurements and investigation into the type of facility it was, the Office of LIEP believed that it � ��,$ � �e was constrained by the statute to recommend denial of the license. The statute at issue is Minn. Stat. §340A.412, subd. 4(a)(5), which reads as follows: Subd. 4. Licenses prohibited in certain areas. (a) No license to sell intoxicating liquor may be issued within the following azeas: �+* (5) within 1,000 feet of a state hospital, training school, reformatory, prison, or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commissioner of corrections. There are no cases involving interpretation of this secfion of the statute, nor is there any statutory defuution of "institution" contained in Chapter 340A. It is important to note, however, that the statute does not limit itself to only state hospitals, training schools, reformatories or prisons, nor does it indicate that the insfitutions have to be owned, operated by, or managed by the commissioner of human services or the commissioner of correcfions. Instead, the statute includes any 'bther insfitution under the supervision or control, in whole or in part", of said commissioners. Is the Davton Residence an"institution"? The license applicant seems to rely upon the fact that the Dayton Residence is a residentiai treatment facility as a basis to support the fact that it is not an"institution". Absent a statutory definition in either Chapter 340A or Chapter 245A or the Rules promulgated thereunder, the court can look to the intent of the legislature in enacting 340A.412(a)(5), as well as to the rules of statutory construcrion. "The objective of statutory interpretation is to ascertain and effectuate the intention of the legislature." Cummings v. Koehnen, 556 N.W.2d 586, 589 (Nlinn. App. 1996)(citations omitted). The apparent purpose of the secrion at issue was to -5- 1 .- a�'$�� establish a distance restricrion between places licensed to sell intoxicating liquor and facilities for people in the state hospital or correctional system. However, since the enactment of that particulaz section, the State has actively pursued a policy of moving individuals in the state hospitals into smaller, more residential settings. Thus a residential facility such as Dayton House, which is licensed and extensively regulated by the Commissioner of Human Services could reasonably be included in the types of facilities intended to be included within this distance restriction. Words used in statutes aze to be interpreted according to their plain and ordinary meaning. Minn. Stat. § 645.08(1); Cummings v. Koehnen at 589. The word "insfitution" as used in the statute is not modified by words such as"similaz" or "such", and therefore, the question is not whether the other institutions are sufficiently like state hospitals, tranung schools reformatories or prisons, but sunply whether they are an instiiution. Random House Dicrionary of the English Language, Second Edition Unabridged, 1987, defines institution as: institution: 1. An organization, establishment, foundation, society, or the like, devoted to the promotion of a particular cause or program, esp. one of a public, educarional, or chazitable character; 2. The building devoted to such work; 3. A public or private place for the care or confinement of inmates, esp. mental patients or other disabled or handicapped persons. The American Heritage College Dictionary, Third Edition, 1993, defines "institution" as: 3a. An established organization ar foundation ,as one dedicated to education or culture. b. The building or buildings housing an institution. c. A place for the care of persons who are destitute, disabled, or mentally ili. The Dayton Residence, a building used for the care of inentally ill adults, clearly falls within these accepted definitions of an "institurion." � � Although no Miunesota courts appeaz to have interpreted the term "institution" as it appears in §340A.412, or the various statutes relating to the Department of Human Services other jurisdictions have had occasion to interpret the term in relation to specific statutes. In the case of In re Debra B, 495 A.2d 781 (Me. 1985) the Maine court had before it a provision in a sterilization statute which provided that a"disinterested expert" was "an appropriately licensed or cerriped professional not associated with an institution serving the person for whom sterilization is sought." The court apparently accepted without discussion that an institution could include a residential facility and examined the issue of whether it could include an outpatient mental health facility which had provided services to the person. In First National Bank of Gems Falls v. Sheehan, 292 NYS2d 741 (1968), the court looked at a zoning provision which prohibited a gas station within 200 feet of a charitable institution. The station in question was within 200 feet of a building owned by a foundation and leased to the Historical Society. The court reasoned that the term institution meant a"use or facility of some continuing nature" and disposed of the case on the basis that the property was leased. The case of State of Connecticut Dept. of Income Maintenance v. Schweiker, 557 F. Supp. 1077 (U.S. Dis. Ct. 1983) contains an extensive discussion of what is an"institution for mental disease" for the purposes of federal statutes relating to medicaid eligibility, concluding that at a minimum it is a facility providing total care to mental patients. Although each case is necessarily fact specific to the statute being examined, the courts seem to accept the fact that an institution can be public or private and that the terxn refers to the building as well as the use. -7- �la'� 2. Is Dayton Residence under the suroervision and control, in whole or in Dart, of the coxnxnissioner of human services? The second issue for determination is whether the Dayton Residence is under the "supervision or control, in whole or in part, of the commissioner of human services." The statute does not require that the facility be managed by, staffed by, or under the jurisdiction of the commissioners of human services or corrections. Thus, it is a factual detennination whether this facility is supervised or controlled to any degree by the commissioner of human services. The uncontradicted testimony of the two employees of the Department of Human Services established that this facility is cleazly under the supervision and control of the Department in many aspects of its operation. The license applicant characterizes Dayton Residence's relationship with the Department of Human Services as simply one of licensure. However, the testimony established that the Department is responsible for background investigations on staff, investigation of compiaints regarding suspected abuse of vulnerable adults, site visits and full review of compliance with all of the rules and regulations regarding residential treatment facilities. Additionally, the Department has adopted nxles which set forth standards for staff qualifications and on-going training, program content, staff ratios, and types of treatment. Furthermore, Minn. Stat. §§245A.12 and 245.13 provide mechanisms for the Department to voluntarily or involuntarily assuxne operation of the residential programs through appointment of a receiver. There is a degree of regulation and control of the content and operation of residential programs which is faz beyond merely issuing a piece of paper to the facility. Even beyond the licensing aspect of Dayton Residence, however, there is the fact that it receives state funding and grant money which is conringent upon the compliance with all of the � c�q ��e rules and regulations of licensure and the terms and conditions of the grants. Because funding eligibility is ried to licensing criteria and standards, in addition to any other applicable federal or state laws or regulations it is hazd to imagine that this facility is not closely supervised to insure that it maintains compliance. Having the ability to cut off funding as well as to take action against the license tbrough issuance of fines, correction orders, condirional licenses, suspension or revocation of licenses or actual management of the facility through receivership indicates a degree of control by the Department which is more than adequate to meet the requirements of §340A.412, subd 4.(a)(5). The statute could have required that the restriction applied only to facilities owned, operated or staffed by the Deparirnent, but it does not do so, nor is there a requirement that the control or supervision which must be exercised be total. That being the case, the question is whether the Commissioner has some control or supervision over the operation of Dayton Residence. In State ex rel. Virginia & Rainy Lake Co. v. District Court of St. Louis County,150 N. W. 211 (Minn. 1914), the court examined the question of whether an individual was an employee of a company for the purpose of obtaaung Workmen's Compensation. The Court, in determining that the individual was an employee for the purposes of recovery under the Workmen's Compensation Act, stated: The evidence tends to show that the company did not surrender, but reserved, the right to supervise and control the work of Bashko, at least to the ea�tent necessary to prevent waste and loss. They required him to cut the timber clean as he went, and to manufacture it according to specifications fiuvished by them, and also to pile the brush. They inspected his work from time to time and occasionally directed him to remedy defects therein. They had the right to dischazge him at any tnne, and this right afforded adequate means for controlling his work. � � Id at 213. In this instance it is not necessary that there be the same level of supervision and control as an employer would have, but only that there be some degree of supervision and control by the commissioner. The testimony introduced at the hearing shows that the Department of Human Services does periodicaliy inspect the facility, directs the qualifications and training of staff, runs background checks to determine whether individuals are eligible to work at the facility, directs the prograixuning content, staff ratios, acceptable treatment and investigates reports o£ abuse. Furthermore, any violations of the rules and regulations under which the facility operates, or any violation of the conditions of the facility's funding, would enable the Department to fine, issue corrective orders, suspend or terminate the license, cut off funding or petition the court for direct control of the facility tlu�ough appointment of it as a receiver. CONCLUSION For all of the foregoing reasons, the Office of License, Inspections and Environmental Protection believes that the reasonabie interpretation of Minn. Stat. 340A.412, subd. 4(a)(5) is that the Dayton Residence does fall within the restriction contained therein. The facility in question is a residential treatment center for adults who are mentally ill. It is licensed and funded by the Department of Human Services, which has significant control over its operation in the form of rules and regulafions relaring to programming, staff ng, training, treatment of residents, and payment for their services and housing. The federai government lists it as an"institution for mental disease" for the purposes of federal medicaid eligibility guidelines. The license applicant 6� qq�� has failed to sustain his burden of proof that he is not prohibited by the statute from locating his business at 778 Selby because it is within 1,000 feet of an institution under the supervision or control, in whole or in part, of the commissioner of human services. Respectfixlly submitted, 7/ Virgi � D. Palmer Attorney License # 128995 Assistant City Attorney 400 City Ha11/County Courthouse 15 W. Kellogg Boulevazd Saint Paul, MN 55102 (651)266-8710 -11- LAW OFFICES KENNETH M. BOTTEMA c�q �t� 300'I HENNEPIN AVENUE SOUTH �._ � •. i �• ,{; SUITE 309 B C,' �_.. _.. ... �- `" MINNEAPOLIS, MINNESOTA 5540H TELEPHONE [6'127 825-233'I FACSIMILE C6'12] 925-0�61 The Honorabfe �eorge A. Beck Office of Administrative iNearings 100 Washington Square, Suite 1700 Minneapolis, MN 55401 June 22, 1999 "' �- - OF COUNSEL: ii_n.ii.�-.;J LARRYRAPOPORT RE: The License Application of Vernon W. Crowe, d/b/a Selby Wine and Spirits, 778 Selby Avenue, St. Paul, Minnesota, City File No. G99-0154 Dear Judge Beck: Enclosed for filing please find the ApplicanYs Memorandum with respect to the above matter. Thank you for your consideration in this matter. K :mr enc sure Yours ery tru{y en Sottema p �' APPLICANT'S MEMORANDUM June 22, 1999 George A. Beck Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN 55401 - . „ .- ,�: �-°�_'�? ,:,� S �:b, f.:,. - � �_.:_� _ RE: The License Application of Vernon W. Crowe, d/b/a Selby Wine and Spirits, 778 Selby Avenue, St. Paul, Minnesota, City File No. G99-0154 iNTRODUCTION The Applicant, Vernon W. Crowe, has made application for an off-sale liquor license to the city of St. Paul, Minnesota. Mr. Crowe's application was accompanied by the statutorily required materials. On February 11, 1999, Mr. Crowe received a letter from Lawrence R. Zangs informing him that the city had granted zoning approval subject to building improvements and approval of any off-street parking development. ApplicanYs exhibit 1. Mr. Crowe also received a February 5 1999 letter informing him that notice would be sent to the community organization and residents of the neighborhood. ApplicanYs exhibit 2. Mr. Crowe received a letter dated March 5`", 1999, informing him that his applicat+on could no longer be processed because the locat+on of his proposed store was within 1000 feet of the Dayton Residence. ApplicanYs exhibit 3. The letter implied that the city was taking the position that Minn. Stat. g 340A.412, subd. 4(5) was being interpreted to apply to Dayton Residency. �� • �� By letter dated April 8 1999, the city by and through Virginia Palmer, Assistant St. Paul City Attomey, informed Mr. Crowe, that the Director of the Office of License, Inspections and Environmental Protection had recommended denial of his Liquor license application for the premises located at 778 Selby Avenue. This was again based on the position that Minn. Stat. § 340A.412, subd 4(5) applied to the Dayton Residence. Mr. Crowe requested a hearing before an administrative lawjudge. A hearing was scheduled before George A. Beck, Office of Administrative Hearings for June 3 1999 at 9:30 a.m. in the St. Paul City Hall. At the hearing, the city was represented by Virginia Palmer, and Mr. Crowe was represented by undersigned counsel. The issue presented was narrowed to, as a matter of law, was Minn. Stat. § 340A.412, subd. 4(5) applicable. The city called witnesses and introduced exhibits. Several of Mr. Crowe's supporters were present. While Mr. Crowe did not call any witnesses, several of the spectators did ask to give testimony. That testimony revealed the overwhelming support Mr. Crowe has in the community. It should also be noted that Mr. Crowe was approved for a liquor license by the city for a location c%serto the Dayton Residence than his current location. However, that location became unavailable, and Mr. Crowe reapplied for a liquor license at the current Selby Avenue address. The City of St. Paul has not taken a neutral position on this issue. The city, represented by the City Attorney's Office, is advocating and fighting against Mr. Crowe for unknown reasons. Mr. Crowe has complied with all other aq��`� requirements of the application process. But for the city's recent position, Mr. Crowe would, in all likelihood, be in business today. Instead, his dream has been delayed once again. The matter was submitted to the judge with the understanding that Mr. Crowe would submit memorandum of law in support of his position that the city's position is unfounded and his application must be approved. ARGUMENT MINNESOTA STATUTE SECTION 340A.412, SUBD. 4(5) DOES NOT APPLY IN THE INSTANT CASE. The city relies on Minn. Stat. § 340A.412, subd. 4(5) in denying Mr. Crowe's application for a liquor license at 778 Selby Avenue, St. Paul, MN. The statute provides as follows: Subd. 4. No license to sell intoxicating liquor may be issued within the following areas: � � � (5) within 1,000 feet of a state hospital, training school, reformatory, prison, or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commissioner of corrections The city has taken the position that the Dayton Residence is an "institution" as provided for in §340A.412, subd. 4(5). Further, because the Dayton Residence �q,�� is licensed by the commissioner of human services, it is under the "supervision or control" of the commissioner. It is the Applicant's position that this statutory provision does not apply. A. The Dayton Residence is a Licensed Residential Program as Defined by Minn. Stat. § 245A.02, subd. 14, Not an Institution. 7he Dayton ftesidence is a licensed residential program that provides 24- hour-a-day care for individuals who are mentally retarded. See Minn. Stat. § 245A.02, subd. 14. The city provides no authority under state law that defines a "Residential Program" as an "institution" such that the Dayton Residence would be considered in any way an institution. At the hearing the city introduced into evidence an eleven-year-old document titled "Instructional Bulletin #88-16H". According to the document, under federal law, any nursing care facility of "more than 16 beds that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases" is an institution. City of St. Paul's Exhibit No. 5, at page 2. The document itself refers to the program located at 740 Dayton Avenue as the "Dayton Boarding Care Home" not "The Dayton Residence" as it is now known. Because of the dated nature of the city's exhibit #5, it is unclear whether the current program located at 740 Dayton Avenue is still eligible 4or Medical Assista�ce, or whether the program has changed in the past 10 years such that it would not now appear on an updated listing of federal institutions. �� Minnesota Statutes defines a care faciliry providing care to people whose primary diagnosis is mental retardation as a residential program. See Minn. Stat. § 245A.02, subd. 14. Therefore, under Minnesota law, that which the federal govemment calis an "institution", this state has defined as a"residential program. Moreover, in a letter dated Aprif 9, 1999 written by Jerry Kerber, Director of the Division of Licensing for the Department of Human Services states the Dayton Residence is a licensed "mental health treatment program." ApplicanYs exhibit 4. Nowhere on Mr. Kerber's letter does he refer to the Dayton Residence as an "institution." The powers and duties of the commissioner of human services are detailed in Minn. Stat. § 246.01. Therein the legislature has vested with the commissioner the exclusive power to administrate and manage the following state institutions; state hospital for persons with mental retardation, state hospitals for mental iliness, or state hospitals for chemical dependency. No other institutions are listed. It foflows that these are the institutions intended by § 340A.412, subd, 4(5). There is absolutely no authority for the city's position that the Dayton Residence is an institution as to fall under the provisions of Minn. Stat. § 340A.412. On the contrary, the type of services that is provided at Dayton Residence is that of a residential program. A residential program is defined by Minnesota Statute. The legislature, when drafting §340A.412, subd 4(5) could have provided that it applies to residential programs. The legislature did not. Statutes should be strictly construed. Minnesota Statute § 340A.412, subd. 4(5) a�'�� simply does not apply in the instant case because the Dayton Residence is not an "institution" but rather a"residential program" B. The Department of Human Services Does Not Supervise or Control the Dayton Residence Residential Program. The Dayton Residence is licensed. It is required to be licensed as a residential program pursuantto Minn. Stat. § 245A.03, subd. 1(1). Licensure is different from supervision or control. A license is simply a"certificate issued by the commissioner authorizing the license holder to provide a specified program for a specified period of time and in accordance with the terms of the license and the rules of the commissioner." Minn. Stat. § 245A.02, subd. 8. The only definition provided in the statutes for supervision concerns the individuals who supervise children in child care facilities. There is no statutory definition for control in this context. The American Heritage Dictionary, 1999, defines supervise as: To have the charge and direction of; superintend." Synonyms: supervise, boss, ove�look, oversee, superintend. The central meaning shared by these verbs is "to have the direction and oversight of the performance of others": supervised a team of investigators; bossed a construction crew; overlooking farm hands; overseeing plumbers and electricians; superintend a household staff. The American Heritage Dictionary, 1999, defines control as: 1. To exercise authoritative or dominating influence over; direct. See synonyms at conduct 2. To hold in restraint; check: struggled to control my temper, regulations intended to control prices. �iq�$�� 3. a. To verify or regulate (a scientific experiment) by conducting a parallel experiment or by comparing with another standard. b. To verify (an account, for example) by using a duplicate register for comparison. noun 1. Authority or ability to manage or direct: lost control of the skidding car, fhe /eaders in contro! of the country. 2. Abbr. cont., contr.. a. One that controls; a controlling agent, device, or organization. b. Often controls . An instrument or set of instruments used to operate, regulate, or guide a machine or vehicle. 3. A restraining device, measure, or limit; a curb: a control on prices price controis. 4. a. A standard of comparison for checking or verifying the results of an experiment. b. An individual or group used as a standard of comparison in a control experiment. 5. An intelligence agent who supervises or instructs another agent. 6. A spirit presumed to speak or act through a medium. Licensure is not synonymous with control and supervision. Referring to Applicant's exhibit 4, again Mr. Kerber provides the Department of Human Services' position on the issue. He states that the Department is "responsible for monitoring the program." Emphasis added. Not supervising, not controlling. As stated above this is a matter of statutory interpretation. The legislature could have provided that Minn. Stat. § 340A.412 apply to licensed facilities, or more specifically, to licensed residential treatment programs. The legislature did not. Therefore, Minn. Stat. §340A.412, subd. 4(5) does not apply in the instant case. CONCLUSION It is the ApplicanYs position that Minn. Stat. § 340A.412 subd. 4(5) does not apply to the instant application for an off-sale liquor license because the �`��$�� Dayton Residence is not an "institution" but rather a"residential program". Furthermore, it is licensed by the commissioner of human services; it is not supervised or controlled. The city is attempting to stretch an obviously non- applicable statute to fit over the application of Mr. Crowe. The motivation for this position taken by the city is unclear. There is strong community support for Mr. Crowe's application. The neighborhood is behind his efforts. The area business community supports him. Moreover, the city had approved his applicat+on, then denied it based in this statute. Matters of statutory construction are submitted to courts and judges every day. There are volumes dedicated to the principles and philosophies of determining legislative intent. It is Mr. Crowe's position that the legislature has clearly provided this court with its intent. Minn. Stat. § 340A.412, subd. 4(5) is clearly drafted. It simply does not apply in this case contrary to the city's position. Therefore it is respectFully requested that you recommend to the city counsel that Mr. Crowe's application for a liquor license be approved. Respectfully submitted, ` M ---�_ Ge�2a��1 � � : _ � ` Kenneth Bottema Attorney for Vernon Crowe 3001 Hennepin Avenue South Suite 309B Minneapolis, MN 55408 612-825-2331 CITY OF SAINT PAUL -- -. y t�a.�cat��io� ,., „��, i3 ..`i �: t il�. .�1. � � � Febr[�3+ 11, 1999 Verr�n Crowe 65� Dayton rlve Sait►t P�il !sRl�4 551 p4 OFEfCE OF T.[CENSk, TNSRECTIONS AND X �� F�IVUtONA�NP.AL PRO2ECTION .RobrnKev/e� O"vec�or �/ �i V i IAWRYPROk�STtOM�LBUILDQYG Tekphone:657-Y66A090 Stiu 3t10 FacaNrlk: 651d6b•9D9D 350 SC Peur SReet 65I-16G9I24 SaknPanL d8nxmta 53102dSI0 R£: 778 Selby Ave - LiCense !fl#19980007002 for OifSale Liquor 6usinass. Mv. Grawe: 4Ye ara granting zastiing approval tn #he rsferenced license subject to the follow'srsg Cbnditians: • lmprovemersts to the truiiding shall comply with ail applicabie buitding and heafth ccxfes. Watic must be comxslated undes pesmits issued by thfs office. -/3ny of�street parking deveiapmeM must be approved by this office far compfiance with cityr sWndards and be constructed under a permit (see 62_t03[a1 on reverse side). tf you have any questian, cali me at 659/286-9083. s � � Lawc�nce R. 7angs Zoning Administration APPLICANT'S EXHIBIT 1 OFFICE OF LICENSE, INSPECfIOYS AND �q �� 1�4� ENYtRONMEKFAL PROTECf [OPt , - Rabert 6ar4r, Dfrma� C1TY OF SAINT PAUL J ^ ..' c,- l�. �� 0.^. „':��; �. C� �' LOWRYPROFESSIONAL BUILDING TslRphone: 6S! 2ff690➢0 Nors ColNno�, Nsyer '� -- - 330 Su PunSWK Srdts 300 FauLnitc 6�7,2669099 t - � , ;. ; ,' :' � �- - Saut Pattl. Mbenaam i5(02•lSIO 6S1 ZbG9lId _,�. _ ;: Februazy 5, I999 Vraion W. Cro�ve/Owner Setby Wine & 5pizits 798 Sclby Ave. St. Paul, l►+�T 55104 REt Lice3ase application for Selby Wine & Spirits, Eao. DBA Selby Wine & Spirits (ID #i998U047Q42) Liquar Off Sate T.icense . De�ar Appiicant, A zeview of ths iavesflgations which has been made in connection with your license appiication have been compieted. Pzoper notification has been sent ta the community orgauizatiaa as►d residents of the neighborhood in wiuch 3rou antend to operate giving tham until March 19,1999 ta voice any objections to your license apglicarion. Tf no abjectzous are received, your Iicense will be issued approximately one week past the date giveu above. Ifobjections are recezved, a hearing will be scheduled before a legisiative hearing offcer. You wilt receivo notice of the rime, piace and date of the scheduled hearing from Gerry Strathman, the LegisIative Hearing Officer. At that heari�ag, thc hearing offiser will take testimony &om aI1 interested persons and �vill make a recommendation to tha City Council as to whether tbe license(s) should be aggroved or he referred to an administrative Iaw judge for #'urthtr review. '�'he City Council wi11 have the fuial authority to giant or dsny this license application. If you ha.ve aay questions, piease contact Cbristine Rozek, 266-9108. very tru�y ro,ics,• �' R�.. Christine A ltozek DsQuty Director /r•t APPLI€APTT'S EXHIBIT 2 liluV}E � .__. CII'Y OF SAIIVT PAUL Nerer G[esa�. Mmer ��'J,:.� G� ':;`1 �': L;� �s, z� vemon crnwc 650 Dayton Avemu Saiad Pant MN 55104 Re: Sclby Wines and Spinxts, Tnc. 7')8 Seibv Av�°.�nue Dpr Mr. Crowe: OFFICE OF L[{- ;E,INSPEC7tONS AND ��/�� EDNiRONMENr.,t_ PRO'fECndN Robex Kusle. Dlrum� �, � f" a E (�i —�I � 1 a IAWRY PROFESS/ON.4L BUILD.A'G 330 $ PetrrShest S�n 300 SmntPmrl. A!lnnuora SST02 2rlephonc 651-2669100 FacsY�ntta: 65L266�91 J4 We c�nnot process your application, dated qctober 7, t 998, foz an Off-Sale Liquor License at the rcferenced propercy. Acoording to Secrion 344A.412 Subd. 4(S� o£ the State of Minnesota I,cgisIative Code (copy cncioscd), "No license to sell into�cicatyng liquor may be issued within i fect of a state hospital, training schooi, refomatory, prison, or othtr institution uader t�o supervision ar contol, in whole or in part, of the coaunissionsr of human services. .". We have de�tsniaed that Daytoa Residence and Re-entry Services are within 1,000 feet of the subject properry. There is n9 pzavisian foz� a waiver of this separatzaa reqnirement in tlke Legislative Codc. 3iacc #ris location does not mcet the license resiriction fa sn off-sale liquor license, please submit a written withdtawal of your application and we will either return your $ 2,000.04 applieat�on #ee or apQiy it to anotkter application at a different location. If yau have any queseioa regarding this matter, please contact rne. If you find att altexnative locatiaa we can check it out to determine if the miaunum segaratirm requiremeats are met. :. i ,/ �1,I' / i/ •..� i�� _ . . • ., ;.e� _ .�„ �. . APPLICANT EXHIBIT 3 f ` � �E�}� /� i ' Minnesoca D aztmenL of Human 5ervices � ��...,.i23 ..;� = `:`, ��. ...,.. � : Apnl 9, t339 To whom it rrray+ ooncem: The Departmern of 1'luman Services has licensed the residential mental heaith treatme�rt prugram {onown as Daytnn Residence since .lune 1, 1983. The license !i � issued to Bostr�n Heatth Care S��stems, Inc. forth�s far.itity located at 7�10 Da;�t�n Avenue, SL Paul, MN 55104. 7he facility is currently licensed to serva 26 adult residenfs_ The Department of Human Services is responsible for monitoring the program fo comptiance with standards found in Minnesota Statutes, chapter 245A; Minnesot � Statutes, section 626.5bT; and Minnesot� Rules parts 9520.0510 to 9520.0670. �.ie licensing duties ofthe Department indude ro�stine licn:�rs�ng inspections, investig< ting complaints r�garding the program serviCes, and conducting nackground sto�dies �•� all staff who pmvide direct contact services to the people receiving senrices from th� program. The Qepartment af Human Setvices aiso provides funding for a significant portioi 'c�f the services provided. Board and lodging services are reimbursed through the Grau� . Resideniiat Housing Program, and the mental health treatment services are fund� rc through Ru1e 12 Menta! Health Grant Program. If yau have arry questions 8bout the licensing requirements, please call me at (6° �; 296-4473 Ssncerely. r�- � "-� Jesry K er, Dit�ectQr Division of Licsnsing APPLICANT'S EXHIBIT 4 44•f Zwfreyetta Rnad Nonb • Sa:n� Paxl. Minn�rom • SSI SS • An L•yual Opporn<niry Emyluyer OFFICE OF THE CITY ATTORNEY(�O��U� " C[ayton M Robinson. Jr., Ciry Attorney � Y � r"= I',' ^ —..�. : C'J CITY OF SAINT PAUL �� ;!_-! ^ �� ;rD;�;s�o., ...� .,v.: LC� ;.ii iu• Norm Coleman. Mayor (l0 Ciry Hal! Telephone: 657 266-87I0 "" '°P` �I�WestKeiloggB(vd Facsimiie:6S1298-i674 � � � � � � � � � � � � �'� � ' �'- Sain! Paul, Minnesota 55703 „�.-.'.I, : o � June 25, 1999 The Honorable George A. Beck Administrative Law Judge Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN. 55401 RE: In the Matter of the License Application of Vernon W. Crowe, dba Selby Wine and Spirits Dear Judge Beck: This letter will acknowledge receipt of the license applicanYs memorandum, and serve as a request for an extension of time to submit the City's reply memorandum. The initial briefing schedule called for the applicant to submit a memo by June 17,1999, with the City's reply due June 24,1999. Mr. Bottema did request and obtain a continuance until June 21 or 22"d, and T would therefore request that the City's reply deadline be extended to June 29, 1999. I spoke to Mr. Bottema and informed him that I would make this request and he had no objection. Thank you for your consideration in this matter. Sincerely, �/ ,�� Virgini Assistant City Attorney cc: Kenneth Bottema § 310.04 LEGISLATIVE CODE �� appeal shall be that there has been an error of law in the grant, issuance or renewal of the license. The appeal shall be in writing and shall set forth in particulaz the alleged errors of law. The council shall conduct a hearing on the appeal within thirty (30) days of the date of filing and shall notify the licensee and the appellant at least ten (10) days prior to the hearing date. The proce- dures set forth in section 310.05, insofaz as is practicable, shall apply to this hearing. Follawing the hearing, the council may affinu or remand the matter to the inspector or director, or may reverse or pIace conditions upon the license based on the council's determination that the decision was based on an error of law. The filing of an appeal shall not stay the issuance of the license. (fl Nc waiuer by renew¢l. The renewal of any license, whether Class I, II or III, shall not be deemed to be a waiver of any past violations or of any grounds for imposition of adverse action against such license. (Code 1956, § 510.04; Ord. No. 17455, § 1, 5-21-87; Ord. No. 17551, § 1, 4-19-88; C.F. No. 94-500, § 1, 7-6-94; C.F. No. 95-473, § 3, 5-31-95; C.F. No. 95-1517, 1-31-96; C.F. No. 97-1446, § 1, 12-30-97) Sec. 310.05. Hearing procedures. (a) Adverse ¢ction; notice ¢nd hearing require- ments. In any case where the council may or intends to consider any adverse action,including the revocation or suspension Qf a license, the imposition of conditions upon a license, or the denial of an application for the grant, issuance or renewal of a license, or the disapproval of a license issued by the State of Minnesota, the epplicant or licensee shall be given notice and an opportunity to be heazd as provided herein. The council may consider such adverse actions when recommended by the inspector, by the director, by the director of any executive department estab- lished pursuant to Chapter 9 of the Charter, by the city attorney or on its own initiative. (b) Notice. In each such case where adverse ar_tion is or will be considered by the council, the applicant or licensee shall have been notified in writing that adverse action may be taken against the license or application, and that he or she is entitled to a hearing before action is taken by the council. The notice shall be served or mailed a reasonable time before the hearing date, and shall state the place, date and time of the hearing. The notice shall state the issues involved or grounds upon which the adcerse action may be sought or based. The council may request that such written notice be prepared and served or mailed by the inspector or by the city attorney. (c) Hearing. Where there is no dispute as to the facts underlying the violation or as to the facts establishing mitigating or aggravating circum- stances, the hearing shall be held before the council. Otherwise the hearing shall be conducted before a hearing examiner appointed by the coun- cii or retained by contract with the city for that purpose. The applicant or the licensee shall be provided an opportunity to present evider_ce and azgument as well as meet adverse testimony or evidence by reasonable cross-examination and rebuttal evidence. The hearing examiner may in its discretion permit otherinterested persons the opportunity to present testimony or evidence or otherwise participate in such hearing. (c-1) Procedure; hz¢ring examiner. The hear- ing egaminer shall hear all evidence as may be presented on behalf of the city and the applicant or licensee, and shall present to the council writ- ten findings of fact and conclusions of law, to- gether with a recommendation for adverse action. The councii shall consider the evidence con- tained in the record, the hearing examiner's rec- ommended findings of fact and conclusions, and shall not consider any factual testimony not pre- viously submitted to and considered by the hear- ing examiner. After receipt of the hearing examiner's findings, conclusions, and recommen- dations, the council shall provide the applicant or licensee an opportunity to present oral or written arguments alleging error on the part of the exam- iner in the application of the law or interpretation of the facts, and to present azgument related to the recommended adverse action. Upon conclu- sion of that hearing, and after considering the record, the examiner's findings and recommenda- tions, together with such additional azguments presented at the hearing, the council shall deter- mine what, if any, adverse action shall be taken, which action shall be by resolution. The council Supp. No. 40 2028.4 �� LICENSES may accept, reject or modify the findicgs, conclu- sions and recommendations of the hearing esam- iner. (c-2) Ex p¢rte cont¢cts. If a license maiter has been scheduled for an adverse hearing, council members shall not discuss the license matter witn each other or with any of the parties or interested persons involved in the mat`�.er unless such dis- cussion occurs on the record during the hearings o£ the matter or during the council's final deliber- ations of the matter. No interested person shall, with knowiedge that a license matter has been scheduled for adverse hearing, convey or attempt to convey, orally or in writing, any information, argument or opinion about the matter, or any issue in the matter, to a council member or his or her staff untii the council has taken final action on the matter; provided, however, that nothing herein shall prevent an inquiry or communica- tions regazding status, scheduling or procedures concerning a license matter. An interested person, for the purpose of this paragraph, shall mean and include a person who is an officer or employee of the licensee which is the subject of the scheduled adverse hearing, or a person who has a financial interestin such licensee. (d) Licensee or ¢pplicant may be represented. The licensee or applicant may represent himself or choose to be represented by another. § 310.05 Supp. No. 40 2028.5 /� � � LICENSES (e) Record,• eoidence. The hearing examiner shall receive and keep a record of such proceedings, including testimony and exhibits, and shall re- ceive and give weight to evidence, including hear- say evidence, which possesses probative value com- monly accepted by reasonable and prudent persons in the conduct of their affairs. (fl Courzcil action, resolution to cont¢in find- ings. Where the council takes adverse action with respect to a license, licensee or applicant for a license, the resolution by which such action is tak- en shall contain its findings and determination, including the imposition of conditions, if any. The council may adopt all or part of the findings, con- clusions and recommendations of the hearing ex- aminer, and incorporate the same in its resolution taking the adverse action. (g) Addition¢l procedures where required. Where the provisions of any statute or ordinance require additional notice or hearing procedures, such pro- visions shall be complied with and shall super- sede inconsistent provisions of these chapters. This shall include, without limitation by reason of this specific reference, Miunesota Statutes, Chapter 364 and Minnesota Statutes, Section 340A.415. (h) Discretion to he¢r notwithst¢ndirzg with- dr¢w¢l or surrender of ¢pplication or license. The council may, at its discretion, conduct a hearing or direct that a hearing be held regarding revocation or denial of a license, notwithstanding that the applicant or licensee has attempted or purported to withdraw or surrender said license or applica- tion, if the attempted withdrawal or surrender took place after the applicant or licensee had been notified of the hearing and potential adverse ac- tion. (i) Continuances. Where a hearing for the pur- pose of considering revocation or suspension of a license or other disciplinary action involving a li- cense has heen scheduled before the council, a continuation of the hearing may be granted by the council president or by the council at the request of the licensee, license applicant, an interested person or an attorney representing the foregoing, upon a showina of good cause by the party making the request. § 310.05 (j) If the council imposes an adverse action as defined in section 310.01 above, a generic notice of such action shall be prepazed by the license in- spector and posted by the licensee so as to be vis- ible to the public during the effective period of the adverse action. The licensee shall be responsible for taldng reasonable steps to make sure the no- tice remains posted on the front door of the li- censed premises, and failure to take such reason- able precautions may be grounds for further adverse action. (k) Imposition of costs. The council may impose upon any licensee or license applicant some or all of the costs of a contested hearing before an inde- pendent hearing examiner. The costs of a contest- ed hearing include, but are not limited to, the cost of the admanistrative law judge or independent hearing examiner, stenographic and recording costs, copying costs, city staff and attomey time for which adequate records have been kept, rental of rooms and equipment necessary for the hear- ing, and the cost of expert witnesses. The council may impose all or part of such costs in any given case if (i) the position, claim or defense of the licensee or applicant was frivolous, azbitrary or capricious, made in bad faith, or made for the pur- pose of delay or hazassment; (u) the nature of the violation was serious, or involved violence or the threat of violence by the licensee or employees thereof, or involved the sale of drugs by the lic- ensee or employees thereo£, and/or the circum- stances under which the violation occurred were aggravated and serious; (iii) the violation created a serious danger to the public health, safety or welfare; (iv) the violation involved unreasonable risk of harm to vulnerable persons, or to persons for whose safety the licensee or applicant is or was responsible; (v) the applicant or licensee was sufficiently in control of the situation and there- fore could have reasonably avoided the violation, such as but not limited to, the nonpayment of a required fee or the failure to renew required in- surance policies; (vi) the violation is covered by the matrix in secfion 40926 0: the Legislative Code; or (vii) t}ie violation involved the sale of cigarettes to a minor. (1) Imposition of fines. The council may impose a fine upon any licensee or license applicant as an adverse license action. r: fine may be in such Supp. No. 30 2029 § aio.os amount as the council deems reasonable and ap- propriate, having in mind the regulatory and en- forcement purposes embodied in the particulaz li- censing ordinance. A fine may be in addition to or in lieu of other adverse action in the sole discre- tion of the council. To the extent any other provi- sion of the Legislative Code provides for the im- position of a fine, both provisions shall be read together to the estent possible; provided, howev- er, that in the case of any conflict or inconsistency, the other provision shall be controlling. (Code 1956, § 510.05; Ord. No. 17551, § 2, 4-19-88; Ord. No. 17559, §§ 1, 2, 5-17-88; Ord. No. 17659, § 1, 6-13-89; Ord. No. 17911, § 1, 3-10-92; C.F. No. 94-46, § 7, 2-2-94; C.F. No. 94-898, §§ 2, 3, 7-13-94; C.F. No. 94-1340, § 2, 10-19-94; C.F. No. 95-473, § 4, 5-31-95) Sec. 310.06. Revocation;suspension;adverse actions; imposition of condi- tions. (a) Council may take ¢duerse ¢ction. The coun- cil is authorized to take adverse action, as defined in section 310.01 above, against any or all licenses or permits, licensee or applicant for a license, as provided in and by these chapters. Adverse ac- tions against entertainment licenses issued under Chapter 411 of the Legislative Code may be initi- ated for the reasons set forth in subsection (b) below, or upon any lawful grounds which are com- municated to the license holder in writing prior to the hearing before the council. Such actions shall be initiated and carried out in accordance with the procedures outline in section 310.05; provid- ed, however, that the forntal notice of hearing shall be used to initiate the adverse action without the use of prior procedural steps. (b) B¢sis for action. Such adverse action may be based on one (1) or more of the following rea- sons, which are in addition to any other reason specifically provided by law or in these chapters: (1) The license or permit was procured by mis- representation of material facts, fraud, de- ceit or bad faith. (2) The applicant or one (1) acting in his or her behalf made oral or written misstatements or misrepresentations of material facts in or accompanying the application. LEGISLATIVE CODE qq-$i�e (3) The license was issued in violation of any oF the provisions of the Zoning Code, or the premises which aze licensed or which aze to be licensed do not comply with applicable health, housing, fire, zoning and building codes and regulations. (4) The license or permit was issued in viola- tion of law, without authority, or under a material mistake of fact. (5) The licensee or applicant has failed to com- ply with any condition set forth in the li- cense, or set forth in the resolution grant- ing or renewing the license. (6) a. The licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has violated, or performed'any act which is a violation of, any of the provisions of these chapters or of any statute, ordi- nance or regulation reasonably related to the licensed activity, regazdless of whether criminal chazges have or have not been brought in cannection there- with; b. The licensee or applicant has been con- victed of a crime that may disqualify said applicant from holding the license in question under the standards and procedures in Nlinnesota Statutes Chapter 364; or c. The licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has engaged in or permitted a pattern or practice of conduct of failure to comply with laws reasonably related to the li- censed activity or from which an infer- ence of lack of fitness or good character may be drawn. (7) The activities of the licensee in the licensed activity created or have created a serious danger to the public health, safety or wel- fare, or the licensee performs or has per- formed his or her work or activity in an unsafe manner. (8) The licensed business, or the �cay in which such business is operated, maintains or per- Supp. No. 30 2030 LICENSES mits conditions that unreasonably annoy, injure or endanger the safety, health, mor- als, comfort or repose of any considerable number of inembers of the public. (9) Failure to keep sidewalks or pedestrian ways reasonably free of snow and ice as required under Chapter 114 of the Saint Paul Leg- islative Code. (10) (11) The licensee or applicant has shown by past misconduct or unfair acts or dealings: phys- ical abuse, assaults or violent actions done to others, including, but not limited to, ac- tions meeting the definition of criminal sex- ual conduct pursuant to Minnesota Stat- utes Sections 609.342 through 609.3451; se�tual abuse, physical abuse or maltreat- ment of a child as defined in Minnesota Stat- utes Section 626.556, subdivisions 2 and 10e, including, but not limited to, acts which con- stitute a violation of Minnesota Statutes Sec- tions 609.02, subdivision 10; 609.321 through 609.3451; or 617246; neglect or en- dangerment of a child as defined in Minne- sota Statutes Section 626.557, subdivision 2; the manufacture, distribution, sale, gift, delivery, transportation, exchange or baz- ter of a controlled substance as defined in Minnesota Statutes Chapter 152; the pos- session of a controlled substance as defined in Minnesota Statutes Chapter 152 in such quantities or under circumstances giving rise to a reasonable inference that the pos- session was for the purpose of sale or dis- tribution to others; or by the abuse of alco- hol or other drugs, that such licensee or applicant is not a person of the good moral character or fitness required to engage in a licensed activity, business or profession. The licensee or applicant has materially changed or permitted a material change in the design, construction or configuration of the licensed premises without the prior ap- proval of the city council in the ease of Class III licenses, the director in the case of Class II licenses, and the inspector in the case of Class I licenses, or without first having ob- tained the proper building permits from the city. qa�� § 310.06 (12) The licensee or applicant has violated sec- tion 294.01 of the Legislative Code, or has made or attempted to make a prohibited eg parte contact with a council member as pro- vided in section 310.05(c-2) of the Legisla- tive Code. The terms "licensee" or "applicant" for the pur- pose of this section shall mean and include any person who has any interest, whether as a holder of more than five (5) percent of the stock of a cor- poration, as a partner, or otherwise, in the prem- ises or in the business or activity which are li- censed or proposed to be licensed. With respect to any license for activities entitled to the protectian of the First Amendment, notwith- standing the foregoing provisions, neither the lack of good moral character or fitness of the licensee or applicant nor the content of the protected speech or matter shall be the basis for adverse action against the license or application. (c) Imposition of re¢sorz¢ble conditiorzs ¢nd/or restrictions. When a reasonable basis is found to impose reasonable conditions and/or restrictions upon a license issued or held under these chap- ters, any one (1) or more such reasonable condi- tions and/or restrictions may be imposed upon such license for the purpose of promoting public health, safety and welfare, of advancing the public peace and the elimination of conditions or actions that constitute a nuisance or a detriment to the, peace- ful enjoyment of urban life, or promoting security and safety in nearby neighborhoods. Such reason- able conditions and/or restrictions may include or pertain to, but aze not limited to: Q) A limitation on the hours of operation of the licensed business or establishment, or on particular types of activities conducted in or on said business or establishment; (2) A limitation or restriction as to the location within the licensed business or establish- ment whose [sic) particular type of activi- ties may be conducted; (3) A limitation as to the means of ingress or egress from the licer.sed establishment or its pazkinn lot or immediately adjacent area; (4) Arequirement to pro��ide off-street parking in excess of other requirements o£ law; Supp. No. 30 20$1 § 310.06 LEGISLATIVE CODE � � � y� � � U `� (5) A limitation on the manner and means of advertising the operation or merchandise of the licensed establishment; (6) Any other reasonable condition or restric- tion limiting the operation of the licensed business or establishment to ensure that the business or establishment will harmo- nize with the chazacter of the azea in which it is located, or to prevent the development or continuation oF a nuisance. The inspector may impose such conditions on Class I licenses with the consent of the license holder, or may recommend the unposition of such conditions as an adverse action against the license or licens- es; the inspector has the same power with respect to Class II licenses. The council may impose such conditions on Class III licenses with the consent of the license holder, or upon any class of license as an adverse action against the license or licens- es following notice and hearing as may be re- quired. Such conditions may be imposed on a li- cense or licenses upon issuance or renewal thereof, or upon and as part of any adverse action against a license or licenses, including suspension. Con- ditions imposed on a license or licenses shall re- main on such licenses when renewed and shall continue thereafter until removed by the council in the case of conditions on Class III licenses or conditions imposed by adverse action, and by the inspector in the case of Class I and II licenses. (d) Standards for multiple license determin¢- tion. In any case in which the council is autho- rized to take adverse action against less than all of the licenses held by a licensee, or applied for by an applicant, the following standards may be used: (1) The nature and gravity of the grounds found by the council to exist upon which the ad- verse action would be based; (2) The policy and/or regulatory goals for the particular licenses involved, either as em- bodied in the Legislative Code or as found and determined by the council; (3) The interrelationship of the licenses and their relative importance to the overall busi- ness enterprise of the licensee or applicant; (4) The management practices of the licensee or applicant with respect to each of such licenses; (5) The eictent to which adverse action against less than all of the licenses or applications would result in difficulty in enforcing and monitoring the adverse action taken; (6) The hardship to the licensee or applicant that would be caused by applying adverse action to all licenses or applications; and (7) The hardship and/or danger to the public, or to the public health and welfaze, that would result from adverse action against less than all of the licenses or applications. (Code 1956, § 510.06; Ord. No.17584, § 1, 8-25-88; Ord. No. 17657, § 15, 6-8-89; Ord. No. 17659, § 2, 6-13-89; Ord. No. 17901, §§ 2, 3, 1-14-92; Ord. No. 17917, §§ 2, 3, 3-31-92; Ord. No. 17922, § 1, 428- 92; C.F. No. 94500, § 3, 7-6-94; C.F. No. 94-1340, § 3, 10-19-94; QE No. 95-473, § 5, 5-31-95) Sec. 310.07. Termination of licenses; surety bonds; insurance contracts. (a) Autom¢tic termination, reinst¢tement; re- sponsibility oflicensee. All licenses or permits which must, by the provisions of these chapters or other ordinances or laws, be accompanied by the filing and maintenance of insurance policies, deposits, guarantees, bonds or certifications shall automat- ically terminate on cancellation or withdrawal of said policies, deposits, bonds or certifications. No licensee may continue to operate or perform the licensed activity after such termination. The lic- ensee is liable and responsible for the filing and maintenance o£ such policies, deposits, guaran- tees, bonds or certifications as aze required in these chapters, and shall not be entitled to assert the acts or omissions of agents, brokers, employees, attomeys or any other persons as a defense or justification for failure to comply with such filing and maintenance requirements. In the event the licensee reinstates and files such policies, depos- its, bonds or certifications within thirty (30) days, the license is automatically reinstated on the same terms and conditions, and for the same period as originally issued. After thirty (30) days, the appli- cant must reapply for a renewal of his license as though it were an original application. (b) Bonds and insur¢nce requiremerzts: (1) Surety Companies: All surety bonds run- ning to the City of Saint Paul shall be writ- Supp. No. 30 2032 �d , i ► OFFICE OF ADMIlVISTRATIVE HEARINGS FOR TAE COUNCIL OF THE CITY OF SAINT PAUL In Re The Licenses Held By James Bailey, Inc. d/b/a Selby Wine & Spirits June 3, 1999 CITY'S PROPOSED EXHIBITS TO: Judge George A. Beck, Administrarive Law Judge, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401 The following constihxtes a list of the City's proposed e�iMts for the Administrative Hearing on June 3, 1999. Exhibit No. Exh. No. 1 Exh. No. 2 E�. No. 3 Description License Application submitted by Vernon W. Crowe for Liquor Off=Sale license, dated October 5, 1998 (4 pp.); Quarter section map of area (1 p.); Notice of Proposed Denial of License Application, dated Apri18, 1999, with Affidavit of Service (3 pp.); Exh. No. 4 Notice of Hearing, dated May 3, 1999, with �davit of Service (4 pp.). � �� Also attached please find courtesy copies of applicable St. Paul City ordinances: St. Paul Legislative Code § 310.05 St. Paul Legislative Code § 310.06 Miun. Stat. §340A.412 Respectfully submitted this 3rd day of June, 1999. �� G-�.N-�. Virguria D. mer Assistant City Attorney Office of The City Attorney 400 City Hall 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 (612)266-8710 . �;� �, . Type of License(s) being applied for: �� .L � � Company Name: _ c��G � v Capo+eti n / P If business is incotporate�d giv Doing Business As: � lb � Business Address: _ / /Y CLASS III LICENSE APPLICATION W/iS�� c3 J i L arenmhip/SoleProptietmh7p 7c of incorporation: ..�,,_ �_ �. . sc�enddR„ / Betwern what cross streets is the business located? Are the premises now occupied7 ___ V� What Type of Business7 Mail To Address: AYplicant I3ame and —> �� QQ�� CITY OF SAI�i IT PAUL offiu af L;�rns�. Inspec*+o� and En�iravmental Prote�tior. 350 R Pec SC Surc 300 Sm�[Puil.M'wimu SSI@ . (61�266909p (u�(612)S669I36 �o 3z � � � s� Z; Which side of the street� Home Address: _ �p �l'y �d,�.,�r�, I �lL�i .�` _ ••_•• G ' / tJJA . I� LflSt .w / TtiIC � Saeet Add�eae '- - • - � • - Ciry stnte Zip DateofBirth: �"/3'= PlaceofBirth: etlfS �� ? ��,7^�..L� i-iave you ever oeen convicted of any felony, crime or violation of any ciry ordinance othet than haffic? YES NO � Date of airest: Where? Charge: F- � � Conviction: Sentence: List the names and residences of three persons of good moral character, living within Ihe Twin Cities Metro Area, not related to the applicant or financially interested in the premises or business, who may be referred to as to the applicanYs character: N ADDRESS f PHONE oz-2 � � � / � /� `' `— J /��ST,�/L � — CP/Z Z — 7 _� . /. �,t.i�� C °.��fJ �. Z7�_S� {�� f.r l ,. !%� .. r- /i ,.� � . � s � °� /' r. �/ALT/� c;ry Business Phone: �'l //� List licenses which you cunently hold, formerfy heid, or may have an interest in: Have any oF the above nazned licenses ever been revoked? �.. `_ j'gg � NO If yes, list the dates and reasons for revocation: THIS APPLICATION IS SUBJECT TO REVIEW gy pUBLIC PLEASE TYPE OR PRIN"P IN INK Shect Addreas � City State Z[p / � Are you going to operate this business persona(ly7 � ygS NO If not, who will operate it7 Fint Name hLddle Initial (�feidrn) y� Dete of Hixth Home Addreas: Street Name C � n , S� �p PhoneN�he� � Y� S°�S �� a�gec or assistant in this business? YES ___�._ NO If the managec is not the same as the operator, please complete the following infotmation: Fint N�e M�ddle lnitial (Meidm) � Dem of Bi�th Homc Addreu: St+eet Name Please list your employment history for the previous five (5) year period: List all other officers of the corpora�ion: OFFICER TITLE HOME NAME (Office Held) ADDRESS � �� HOME PHONE State BUSINESS PHONE Phane Number DATE OF BIRTH If business is a partnership, please incl»de the following infoimation for each partner (use 8dditional pages if necessary): � �� _ Homc Addre+a: Shect Neme I�ame Home Ad. �uc.u: SCcc[ Nraac City Lmt DateofBirth S[eG: Zip PhoneK�mmber Lart DateofBirth State - Zip � Phone I�vmbet MINNESOTA TAX IDENTIFICATION NUMBER _ pursuant to the Laws of Minnesoty, 1984, Chaptet 502, Article 8, Section 2(270.72) (Lar Cle�ance; Issuance ofLicenses), ]icensing authorities are required to provide to the State oFMinnesota Commissioner oFRecenue, tfie Minnesota business tax identification number and the social security number of each liceose applicant U¢der the Mumesoty Govemment Data Practices Ac[ and the Federal privacy Act of 1974, we are required to advise you of the following regarding ihe use of the Minnesata Tar ldeniificatian Numher: - This information may be used to deny the issuance or renewal of your license in the event you owe Minnesota sales, employer's withholding or motor vehicle excise taaces; - Upon receiving this information, the licensing authority will supply it only to the Minnesota Depaztment of Revenue. However, under the Federal Exehange of Information Agreement, the Depart��t of Revenue may supply this information to the Internal Revenue Service. M�m�esota Ta7c IdenaficaGon Numbecs (Saies 8c Use Tex Number) may Ge obtained from t�e State of Minnesota, Business Records Department, 10 Rivet Park Plaza (612-296-6181), Social Security Number: City �_ OV � hIlddle Gtitid �y�� Minnesota Tax Identification Number: � 7 Z�Q� _ If a Minnesota Ta�c Iden[ification Number is not required for the businzss being oPerated, indicate so by placing an "X" in the box 4 • 1 � , aa'$ ��' CERTIFICATION OF WORKERS' COMPENSATION COVERAGE PURSUAN'I' TO MINNESOTA SiATUTE 176.182 I haeby certify that I, or my company, am in compliance with the warkers' compensation insurance coverage requirements of Minnesota Statute I76.I82, subdivision 2. I aLso imnderstand tfiat provisiou offalse info:malion in tfris cenification wnstitutes sufficient grounds for adverse action against all licenses held, includiag revocation and sus�ension of said licenses. Nazne of Insurance Company: �L�-L % ��/ �' . _l�,/✓C �L/fcs�s�s�� Policy Number: Coverage from to I have no employees covered under workers compeosation insurance (IIIITIALS) ANY FALSIFICATION OF ANSWERS GIVEN OR 1ViATERIAL SUB�IITTED WILL RESULT I�i i DENIAL OF THIS APPLICATION I hereby state that I have answered all of the preceding questions, and that the infoimation containzd herein is tiue and correct to the best of my 3�owizdge and belief. I hereby state fiuther tfiat I have reczived no money or other consideration, by way of Ioan, gift, contribucion, or othznvise, other ttian already disclosed in the application wtuch I herewith submitted I also understand this premise may be inspected by police, fue, health and other city officials at any and all times when the business is in operation. Signature (REQUIRED for all applications) We will acce�t paymeet by cash, check (made payable to City of Saint Pau� or credit card (M/C or Visa). Date IFPAYlNG BY CREDIT CARD PLEASE COMPLETE THE FOLLOWINC INFORMATION: � MasterCud � Visa EXPIRATIO i 1 DATE: � � � � Nazre ACCOUNL Ir'UMBER: � � � � � � � � � � � � � � � �i of Cazd for all '"Note: If this app;ication is Food/Liquor related, please contact a City of Saint Paul Health Inspector, Steve Olson (266-9139), to review plans. If azy suos[anuai cnanges to structure are anucipated, please contact a City of Saint Paul Plan Examiner at 266-9007 to apply Yor building permits. Ifthere are any changes to the puking lot, floor space, or for new operations, please contact a City of Saint Paul Zoning Inspector at 266-9008. All applications require the following documeats. Please attach these documents when submitting your application: I. A detailed descriplion of the design, location and squaze footage of the premises to be licenszd (site plan). The following data should be on the site plan (prefzrably on an 8 1/2" x 11" or 8 1/2" x 14" paper): - Nazne, address, and phone number. - The scale should be stated such as 1" = 20'. ^N should be indicated towud the top. - Placement of all peRinent features of the intzrior of the licensed facifity such as seating areas, kitchens, offices, repair area, parking, rest rooms, etc. - If a request is for an addition or expansion of the licensed faciliry, indicate both thz cu:rent area and the proposed e�pansion. 2. A copy of your lease agreement or proof of ownership of the property. SPECIk'IC LICENSE APPLICATIONS REQUIRE ADDTI'IOYAL INFORI�IATION. PLEASE SEE REVERSE FOR DETAII,S >>>> � r.` - _ If applying for, Cabaret aduk, please attach written proofthat each employee is at least 18 yeazs old. ConvenationlRap pador adult, please attach written proof that eacfi employee is at least 18 years old Entertainment, please ype�{y �� e, B or C license; obtain and attach signatures of approval from 90% ofyour neighbors withia 350 feet of the establishmen[ 'This 1�� m� be applied far in conjunclion with a Liquor, Wine, Malt On Sale or Rental/Dance Hall license_ Firearms, please auach a leVer with the following information: state if selling or only repairing, Federal Firearms License Number, type of Armed Services dischazge (Honorable, Generai, gad Conduct, Undesirable, Dishonorable, or no military secvice. (NOTE: Establishment must be commercially zoned) Game room, please provide the following information: name of machine and list price. (NpT'E_ A Pool Hall license is required if there aze any pool tables in the establishment) Health/Sports club adult, please attacfi wcitten proof that each employee is at least 18 years oid Liquor off/on �aie, refer to attached liquor appL+'catioa Lock opeaing seiyices, ple� a�h a��yll employces �w�� h�e y�� lephone nttmber) wfio will be doing the lock opening secvice; attach $10,000 Surety Bond. Massage ceater, please attach a detailed description of the services being provided Mazsage center adult, please attach µ.itten proof that each employee is at least 18 yeazs old Massage practihoner, please submitproof ofsVCCessfiil c of written and praclical e�cams from the City of Saint Paul authorized �xaminer'. iasurance certificate showing ;,overage of $1,000,000.00 eacfi generyl liabi(ity and prefessional liabi]iry with the Ciry of Sain[ P� n�med as an addi[ional insurecl, and a 30 day notice of cancellation; proof of affiliation &om a licensed City of Saint Paul therapeutic massage center or state liceased health facility . Motorcycle dealer, please include State of Minnesota Dealer Number. Nerv motor vehicte dealer, please iz;clud State of Minnesota Dealer Number. ` Parldng 1oUramp, Please include the numba ofPaclang spaces, and attach pians containing a gec�-ral de�criplion of the security provided at tfie IoUramp, a site plan showing driveways of the propo� lot and the le al descti tion of [he ro t(us re if no site plan is cucrently on file). Attach a cuver letter describing your plans to comply with the �� dqu��t necessazy only B Painting requirements. Pawnbmker, please attach $5,000.00 Surety Bond. Secon3 hand dealeo-motor vehide, please include State ofi�fiimesota Dealer Number. 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(�p�Csi a�i � 1 .�+ F..� i„s.l�m� . �.u>,�nv (� �� i :- a � tm � � � � �4] , I ' ;.. ` w I � � �, , � � � 't� ; z j , .,. n y- r � I 3 44 � t5 � l6 47 �8 �� IOr.Fk � 12 l3 14 t5 l6 � 17 l8' � Il � 42 13 � 14 VS t7 IB 19 20= °f6 ti � I8 � i9 �� 1� 22,�23 24 25 26� F �J�J L� ��19. � '� .,. i L1._..�_ �� _! _y_�� 1 _� �-` W ��s , �_ ` ��$` SELBY) �{7 � ° f � � �ii,., I � Q � .e� - T�" x { ;.v , -- T7 - r T —, � .� eoe � f� � . ��5 4��3 2 1� j9�8 7;6i5 4.b 2 1, '�0 9�8�7'6:5 4 3 2,Is �,1514 4b'12 6�5 i I I Cv1I(rYJ (ar; '(xr (m)' i i ,� i . a {� , 4 �SnA � (Y-' / I O . � 1 �:a� le.�Sm;� �(ec� � �es.� i �c �5� r�e� t� . cu c� ;>' o' ru�, �� d� � L �� 9 c, � ' � ��—___ e.lGv'�O:oicvld�(e31 (wq r PrA�I, Oe>)Ps�.r3;�Or.;i. e ivi�>o� �; �� .en�':s � � � I i , , � . � � ' , I ' �� i . i i i b 10�11121314',1516�17'Id�Iifi1213 "s16171819,202122�1232425�,26 � e=�: p �e„ I , _ I I -, q � ,��, � ,,s, 1 '� � �_ 1�_ �<,�, I i . � �_ i - NA6UE � m � � . , � � r � � �� , ' V � �--r �- �--� , � a e,o �° ° eoo i i � >�, I ;, , � 6 5 4 3� 2 � I � 9 y 6 � 5 4 +/ � ' 3 / 2 y ' , � � 10 9 I 8 7 6 i 5 4 3 l 2 , I� ;�� 13'� 12 � 11 IO 9' 8 � T 6� 5 t . 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(» y(x1 � .>�. � :ml I.as' �x'y ( m_L�� I °' 1"=� 1 P 3J �.` � �. a � �-zs � >U r.�� a.� h,� �, nn na h�i cwi m� ,�� c �� , «�?� �,o�: h�=r n<,; n �1bo�T�`�'_ , �_ _ Al--. —— is I� ., i � � I �' � �: � ` . < 20 21 22 23 24 25 26 27 28 29i3 '16 IB 19� 20i21�22i23 25 , �� ! Crowe d/b/a elby Wine & Spirits � ". . - i�{ _ � i �' City's Exh. No. 2 ...___E.tni i v _ ) � . �� .. , � CITY OF SAINT PAUL Norm Colemun, M¢yor Apri18, 1999 OFFICF OF Tf� CITY ATTORNEY /j ( Clayto�obiruon, ✓r., CiryAnomey �`�1 I� �� 1 Civrl Division 400 City Hall !S West Kellogg Blvd, Saint P¢ul, Minnesota SSIO2 Telephone: 651266-8710 Facsimile: 657 298-5619 NOTICE OF PROPOSED DENIAL OF LICENSE A,PPLICATION Mr. Vernon W. Crowe 650 Dayton Avenue Saint Pau1, MN 55104 RE: Application for off=sale liquor license by Selby Wine & Spirits, d/b/a Selby Wine & Spirits for the premises at 778 Selby Avenue Dear Mr. Crowe: The Directar of the Office of License, Inspections and Environxnental Protection has recommended denial of your off=sale liquor license application for the premises at 778 Se1by Avenue. The basis for the recommendafion is as follows: Minn. Stat. §340A.412, subd. 4(5) prohibits the issuance of an intosicating liquor license "within 1,00 feet of a state hospital, training school, reformatory, prison ar other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commission of corrections." The Dayton Residence, located at 740 Dayton Avenue, is licensed by the Department of Human Services and is located within 1,000 feet of your proposed location. Pursuant to Saint Paul Legislative Code §310.04 you aze entitled to a hearing before an administrative law judge if you dispute the underlying facts which form the basis for the denial of your license application. If you wish to have such a hearing, piease send me a letter indicating that you are contesting the facts. A hearing will be scheduled and you wili then be sent a Notice of Heazing with the time, date and place of the hearing, the name of the administrative law judge who will preside and a brief description of the procedures to be foilowed. You may aiso choose to withdraw your license application at this time, and if you wish to do so you must send that request in writing to the LIEP Office. �n r . �� Crowe d/b/a elby Wine & Spirits � City's Exh. No, 3 �age 2 • • Vernon Crowe C� l� Aprii 8, 1999 �q� � If I have not received a written request for a hearing by Apri123, 1999 I will assume that you aze not contesting the factual basis for the recommended denial of the license application. Please feel free to contact me if you have any questions regazding this matter. Sincerely, �� V irginia D. Palmer Assistant City Attorney cc: Robert Kessler, Director of LIEP Christine Rozek, Deputy Director of LIEP Summit-University Planning Council, 627 Selby Avenue, Saint Paul, 55104 � � w,. < < , , ' � STATE OF MINNESOTA ) ) sS. COUNTY OF RAMSEY u aa�$�'� AFFIDAVIT OF SBRVICE BY MAIL JOANNE G. CLEMENTS, being first duly sworn, deposes and says that on April 9, 1999, she served the attached NOTICE �F PROPOSED DENIAL OF LICENSE APPLICATION on the following named person by placing a true and correct copy thereof in an envelope addressed as follows: Mr. Vernon W. Crowe 650 Dayton Avenue St. Pau1, MN. 55104 (which is the last known address of said person) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 9th day�e€� April, 1999. � Notary 9 � E� Jan. I CITY OF SAINT PAUL Notm Coleman, Mayar �r May 3, 1999 OFFICE pP TAE C=Ty ATTORNBy Cluyton �binson, Jr., CiLy AKOrney ��] Q 1 � n "4`UF`� Civi[Division 400CrtyHa11 Telephanc 651266-8710 ISiYestXelloggBlvd Facsimile:651298-56Z9 Saint P¢u� Minnuot¢ SSIO2 NOTICE OF HEARING Mr. Vernon W. Crowe 650 Dayton Avenue Saint Pail, Minnesota 55104 RE: License application of Mr. Vemon W. Crowe d/b/a Selby Wine & Spirits for the premises located at 778 Selby Ave. in St. Paul Our File Number: G99-0154 Dear Mr. Harmon: Please take notice that a hearing will be held at the following time, date and place concerning the license application for the premises stated above: Date: Thursday, June 3,1999 Time: 9:30 a.m. Place: Ruom 40-A St. Paul City Hall 15 West Kellogg Boulevard Saint Paui, Minnesota 55102 The hearing wi11 be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: Name: George A. Beck O�ce of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN, 55401 Telephone: 612-341-7601 �� . . , � Crowe d/b/a elby Wine & Spirits _'i — City's Exh. No. 4 , The Council of the City of�aint Pau1 has the authority to provide fo�arings concerning lice /� �� premises and for adverse acrion against such licenses and applicafions, under Chapter 310, including sections 31Q.05 and 310.06, of the Saint Paui Legislative Code. In the case of licenses for intoxicaring and non-intoxicating liquor, authority is also conveyed by Mimiesota Statutes section 340A.415. Adverse action may inciude denial, revocarion, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action ao�st the license application submitted for the above premises as follows: ` Minn. Stat. §340A.412, subd. 4(5) prohibits the issuance of an intoaicating liquor license "within 1,000 feet of a state hospital, training school, reformatory, prison or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commission of corrections." The Dayton Residence, located at 740 Dayton Avenue, is license�by the Department of Human Services an� is located within 1,000 feet of your proposed location. The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrative Law Judge will have all parties identify themselves for the record. The City will then present its witnesses and evidence, each of whom the licensee or attorney may cross-examine. The licensee or their attomey may then offer in rebuttal any witnesses or evidence theY may wish to present, each of whom the City's attorney may cross-examine. The Admuustrative Law Judge may in addition hear relevant and materiai testimony from persons not presented as witnesses by either pariy 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 have substantial interest in the outcome of the proceeding. Concluding azguments may be made bY the parties. Following the hearing, the Judge wi11 prepare Findin�s of Fact, Conclusions of Law, and a specific recommendation far action to be taken by the City Council. 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 Minnesota Rules, part 1400.7000. If a stipulation or agreement can be reached as to the facts, that stipulation will be presented fo the Administrative Law Judge for incorporation into his or her recommendation for Council action. If the licensee or their representative fails to appeaz at the hearing, the licensee's ability to challenge the allegations will be forfeited and the aliegations against the licensee which have been stated eazlier in this nofice may be taken as true. If non-public data is received into evidence at the hearing, Notice of Hearing - Page 2 - it may become public u� objection is made and relief reques�under Minnesota Statutes, • ' Section 14.60, subdivisio �' � � 1 If you have any questions, you can call me at 266-8710. Very iruly yours, U� t�� ,�i�,.�.-„�.� Virginia D. Palmer Assistant City Attorney cc: Mr. Thomas D. Harmon, Wagner, Falconer & Judd, Ltd, 3500 IDS Center, Minneapolis, MN 55402 Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Community prgullZer Distriet 8, Summit-University Plauning Council, 627 Selby Ave., St. Paul, MN 55104 Notice of Hearing - Page 3 � , -. ---� STATE OF MINNESOTA ) ) ss. COUNPY OF RP.MSEY � . � �• 1 AFFZDAVIT OF SERVICE BY MAIL JOANNE G. CLEMENTS, being fir5t duly sworn, deposes and says that on May 3, 1999, she served the attached NOTICE OF HEARING on the following named person by placing a true and correct copy thereof in an envelope addressed as follows: Mr. Vernon W. Crowe 650 Dayton Avenue St. Paul, MN. 55104 (which is the last known address of said person) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 3rd d��f M�� 19�. PETER P. PANGBORN Notary n '�� '�� ; ��y 3�a ��,�\� srn� oF NmvrrESOra DEPARTMENT OF HUMAN SERVICES Human Services Building 444 Lafayette Road St Paul, M'innesota 55155-38 INSTRUCTIONAL BUlLETIN #88-16H T0: Chairperson, 8oard of County Cortmissioners Attention: �irector Chairperson: Human Services 8oard Attention: Director Institutions for Mental Diseases Attentio Director Medicai Assistance and tndividuals Residing i� I. II PURPOSE Eligibility for The purpose of this bulletin is to ciarify poticy for individuais residing in institutions for mental diseases (IMDs) and requesting Medical Assistance (MA) or General Assistance Medical Care (GAMC). In addition. this bulletin provides information about a new federal law and a list of IMDs in Minnesota. This bulietin is a follow-up to Instructional Bulletin #88-16A issued April 24, 1988 and shouid be read in conJunction Nith that builetin. BACKGROUND A person up to age 21 (or up to age 22 if the person has been in a Joint Commission Accreditation of Hospitals (JCAH) accredited psychiatric program continuously since prior to his/her 21st birthday) or a person age 65 or oider is e)fgible for MA 1f reslding in an IHD, provided that the person meets ali other eligibility criteria. A person between the ages of 21 and 65 is not eligible for MA if residing in an IMD. A. Institutions for Mental Diseases An IMO is defined as an institution primarily enqaged in providing diagnosis, treatment or care of persons with mental diseases, including medical attention, nursing care and related services. � n re e icense a p a i n .+ — Crowe d/b/a Selb Wine & Spirits City's �xh. No. $ � "2.� 1988 ti 0 �� ,�. � � ,� D� r -:. ;a `+. �, ,,. ;'-, ( :tic+. , - , .c ; �� ti, �:. ' o i` . ."' JN ` nstitutions for Mentai Di AN EQUAL OPPORNNITY EMPLGcnn INSTRUCTIONAL BUILETIN #88-16H November 23. 1988 Paae 2 Effective Ju}y 1. 1988, the Medicare Catastroohic Coverage Act of 1988 amended the Social Security Act (42 U.S.C. 1396d) to further define the term iMD as follows "The term 'institution for mental diseases' means a hoscitai. nursina faciiity, or other institution of more than 16 beds, that is orimarily engaged in oroviding diagnosis. treatment, or care of aersons with mentai diseases, including medical attention. nursing care. and related services." With this ciarified definition of an IMO. the Deoartment has reviewed institutions throuahout Minnesota. Foliowing is a list of institutions which have been determined to be IMDs. AH-GWAH-CH[NG NURS[NG HOME Ah-Gwah-Ching, MN 56430 ANDREW CpRE HOME l215 South 9th Street Minneaoolis. MN 55404 ANOKA METRO REGIONAL TREATMENT CENTER` 3300 4th Avenue North Anoka,�MN 55303 BANNOCH[E NURS[NG HOME 3515 2nd Avenue South Minneacolis. MN 55408 B[lL KELLY HOUSE 2544 Piilsbury Avenue South Minneacolis. MN 55404 BIRCHW000 CARE HOME 715 West 31st Street Minneaoolis, MN 55408 BRAINERD REGIONAL TREATMENT CENTER• 1777 Highway 18 East Brainerd, MN 56401 BRISTOL PLACE (Not inciuding Bristoi Place located at 202 Ridgewood Ave. So.) 400 Ridaewood Avenue South Minneaoolis. MN 55403 DAYTON BOARDING CARE HOME 740 Dayton Avenue St. Paui, MN 55104 EAGLE LAKE HOME Route 1. 8ox 65 Cromwell. MN 55726 INSTRUCTIONAL BULLETIN #88-16H November 23. l988 Paqe 3 EDEN HOUSE 1025 Portiand Avenue Minneapolis, MN 55404 EMERSON PLACE NORTH 2304 Emerson Avenue North Minneapolis, MN 55411 FAMILYSTYLE HOMES 398 Duke Street St. Paul. MN 55102 FERGUS FALLS REGIONAL TREATMENT CENTER• Mental Health Division Box 157 Fergus Falis, MN 56537 FRANKLIN P�ACE EAST 2100 Ist Avenue South Minneapolis, MN 55404 GRANO AVENUE REST HOME 3956 Grand Avenue South Minneapolis, MN 55409 GRANVILLE - JANE DICKMAN CENTER 1665 woodbury Drive Woodbury, MN 55043 GRANVILLE - TEAM CENTER 54 West Exchange Street St. Paul, MN 55102 GREEN IAKE MANOR 263 L.ake Avenue North Spicer, MN 56288 GUILD HALL 286 Marshail Avenue St. Paul, MN 55102 HAYES RESIDENCE I620 Randolph Avenue St. Paul, MN 55105 HEWITT HOUSE 1593 Hewitt Avenue St. Paui, MN 55104 HIGH POINT LODGE Route i, Box 346 Ciear Lake, MN 55319 ��.�ti�e INSTRUCTIONAI BUL�ETIN #88-16H November 23, 1988 Paae 4 HOIKKA HOUSE 238 Pleasant Avenue St. Paul, MN SSL02 HORISON WEST HEALTH CARE CENTER 1620 Oak Park Avenue North Minneapolis, MN 55411 JANUS: A WILLONS' TREATMENT RESIDENCE 8041 12th Avenue South 810t 12th Avenue South Bloomington, MN 55420 JOHNSON REST F�ME 516 2nd Street Southeast Fosston, MN 56542 MARCH HOUSE 3159 Park Avenue South Minneapolis, MN 55407 MINNESOTA SECURITY HOSPITAL !00 Freemah Drive St. Peter, MN 56Q82 MINNETONKA HEALTH CARE CENTER 20395 Summerville Road Excelsior, MN 55082 MISSION FARMS NURSING HOME 3401 Medicine Lake Boulevard Minneapolis. MN 55441 MERRITT HOUSE Box 470 BiWabik, MN 55708 MOOSE LAKE REGIONAL TREATMENT CENTER* IOQO Lakeshore Drive Moose Lake, MN 55767 NEW FOUNDATIONS 796 Capitoi Heights St. Paui, MN 55103 NORTHWESTERN APARTMENTS t00 Gretchen Lane Craokston, MN 56716 OAK GROVE CARE CENTER l31 Oak Grove Street . Minneapolis, MN 55403 INSTRUCTIONAL BULLETIN #BS-16H November 23. l988 Page 5 OAKLAND HOME 97 North Oxford St. Paul, MN 55104 OASIS 6739 Goiden Valiey Road Golden Valley, MN 55427 PARKSIDE HOMES, 8ox 348 Soudan, MN INC. 55782 PASSAGENAY 2708 Portiand Avenue South Minneapolis, MN 55407 P[LLSBURY BOARD AND CARE 2500 Pillsbury Avenue South kinneapolis, MN 55404 PINEVIEW RES[DENCE 69 North Milton St. Paul, MN 55104 QUARRY HIIL RESIOENTIAL TREATMENT CENTER 2t16 East Center Street Rochester. MN 55901 QUEEN NURS[NG HOME 300 Queen Avenue North Minneapolis, MN 55411 REENTRY HOUSE 5812 Lyndaie Avenue South Mtnneapolis, MN 55419 RIVERVIEN HOMES, INC. Star Route Brookston, MN 5571Z ST. IUKES' HOME 222 Ninth Avenue West Alexandria, MN 56308 ST. PETER REGIONAL TREATMENT CENTER• MI Units 100 Freeman Drive St. Peter, MN 56082 ST. WILLIAMS ANNEX Sao Street Parkers Prairie, MN 56361 ��,��e INSTRUCTIONAL BULLETIN #88 November 23, 1988 Page 6 SENTINEL HOUSE 2122 Portiand Avenue South Minneapolis, MN 55404 SOUTHSIDE CARE CENTER 2644 Aldrich Avenue North Minneapolis, MN 55408 STILlWA7ER RESIDENCE 220 West Olive Stiilwater, MN 55082 WELLSPRING THERAPEUTIC COMMUNITY 245 Clifton Avenue South Minneapolis, MN 55403 MtLLMAR HEALTH CARE CENTER/WORTHSIDE RESIOENCE`• 500 Russell Street Wilimar, MN 56201 WILLMAR REGIONAL TREATMENT CENTER' M[ Unit Box 1128 Nilimar, MN 56201 'Otilv the psychiatric hospital portion is considered an [MD; not the ICF/MR portion. ••Onlv the ICF-II beds are considered an IMD; not the SNF beds. III. LOCAL AGENCY ACTION A. MA Eliaibilitv for IMD Residenta An individuai who is cortmitted or voluntarily admitted to an IMD is considered to be a resident of that IMO (even if that individual is tenporari)y reteased from the !MD for the purpose of obtaining medical treatment) unless one of the foliowing conditions exist: a. The individual is on a conditional release. An individual sent hane for for a trial visit is considered to be on a conditional release. � b. The individual is on convalescent teave. An individual sent home to recover from an illness is considered to be on convalescent leave. c. The individual is discharqed or voluntarily discharges him/herself. An individual is considered dischar'ged only'if he/she would need to seek readmission throu4h normal procedures in order.to b'e acYnitted to the IMD at a later date. �a��' INSTRUCTIONAL Bl1Ll.ETIM #88-ibH November 23. 1988 Paae 7 An individual who resides in an IMD fs not eligible for MA uniess the individuai meets ali other MA eligibility criteria and one of the folioaing conditions exist: a. The individuai is under the age of 2t and resides in a JCAH accredited fac9lity. b. The individuai is under age 22 and has been in a JCAH accredited Psychiatric program continuously since prior to his/her 21st birthday. c. The individual is age 65 or over. d. The individuai is a participant in the MA Demonstration ProJect in Hennepin, Dakota, or Itasca County and has been placed in an IMD by the HMO/capitated payment contractor. An individuai who is not etigible for MA due solely to IMD residency must be terminated from MA with a t0-day advance notice as outiined by Instructional Bulletin #88-16A. B. GAMC Eli9ibititv for IMD Residents Beginning January 1, 1989, an individual who is terminated from MA, inciuding MSA recipients and AFDC recipients age 18 and older, due solely to his/her IMD residency may acpiy for GAMC. GAMC eligibility for this individual is determined using MA eligibility criteria (i.e., $3000/6000 asset limit rather than 51000 asset limit) excepting the IMD residency restriction. In short, GAMC eligibility is availabie to any individual who would be a MA recipient if he/she did not reside in an [M0. GAMC eligibility may exist for the individual untii the day prior to discharge (inclutling voluntary discharge), conditionai release, or convalescent leave. In these situattons, an individual may reappiy for MA because the individual is not considered to be an IMD resident and, therefore, cannot receive GAMC if he/she is eligible for MA. . C. MA Eitaibilitv for Individuals in a Consolidated Chemical Deaendencv Treatment Fund Provider Facilitv Effective July i, 1988, individuals receiving chemical dependency rehabilitative services aere eligible for MA if residing in a facility with a bed capacity of 16 beds or Iess, an acute care hospitai or their own home. [ndividuais under the age of 65 are not eligible for MA while residing in a residential setting of more than 16 beds, except for individuals under age 2t receiving inpatient psychiatric services as defi�ed in 42 CFR 440.160 and 42 CPR 441, subcart D. INSTRUCTIONAL BUILETiN #68-16H November 23, t988 Page 8 D. Notice of Action/Aoplication In cases where the local agency is terminati�g MA eligibitity (whether or not GAMC eligibility is being opened), a notice of the negative action and appeal rights must be given to an individual t0 days prior to the effective date of the notice. [n cases where the local agency is terminating GAMC eligibility and opening MA eligibility, an advance notice of the action is not necessary, because it is not a negative action. !n cases where the client's MA or GAMC eligibility is being terminated and the ciient wants to obtain eligibility for the other program, a new application must be filed With the local agency. E. Case Manaaement Services for Individuals with Serious and Persistent Mental Illness A seParate Instructional Builetin wiil be issued which Mill define case management for individuals with serious and persistent mental iilness. In brief, a MA recipient who is seriously and persistentiy mentally iii wiil be eligible for case management services effective January 1, 1989. A GAMC recipient will not be eligible for case ma�agement services uniess he/she is a resident of an IMD. F. IMD L9vina Arran9ement Cade For an appiicant/recipient who is an [MD resident, an IMD livinq arrengement code must be coded on the DHS-l06 forms. An A& C Memo with this code and the applicable instructions is forthcoming. The DHS-l06 forms must be coded accurately to alloa a GAMC recipient in an IMD to receive case management services and enhanced perinatal services, if appropriate. G. Revised Fu�dina Chart Attached to this bulletin is a chart Mhich indicates program eliglbiiity for MA, GAMC. Minnesota Supplemental Aid (MSA), and General Assistance (GA). In order to pay the negotiated rate for a General Assistance or Minnesota Supplemental Aid cifent, both.the GA and the MSA programs require that the county agency approves of the placement in the• facility or agrees that the client needs the care and services provided by the negotiated rate facility. [n addition, counties must observe exist9ng MSA and GA program instructions in establishing rates for these facilities. There are restrictions in state law �hich may prevent payment of the entire former rate using MSA or GA fu�ds. In these instances> the county may make additional payments from county funds, if it chooses to do so. The Department plans to approach the legislature with a request to revise these restrictions, but cannot predict the legislature's tNSTRUCTIOMAL BULLETIN #88-16H November 23, 1988 Page 9 IV. QUESTIONS qq � Questions from local agencies regardi�g this bulletin should be directed to: Income Maintenance Policy Center Program Administration Department of Human Services 444 Lafayette Road St. Paul. MN 55155-3834 Questions fran other parties should be directed to: Kathie Lindbtad Chariene Seavey Health Care Management Division Long Term Care Management Division Department of Human Services Department of Huma� Services 444 Lafayette Road 444 Lafayette Road St. Paul, MN 55155-3848 St. Paui, MN 55t55-3844 (6(2) 296-8818 (6t2) 296-6963 Sincerely. �'` ��i'r�u� �i�f:i� MARIA R. GOMEZ Assistant Commfissio�er - � �q,$� �e Revlsion 7/25/88 MA/GAMC Fundinq Service/Board and Room RTC/Community Piacement/CD/MI/MR (For persons who wouid otherwise be eligibie for MA) (GAMC recipients must meet GAMC eligibility income and asset requirements) (IHD definition excludes faciiities 16 beds or less Age: under 21 (up to 22 if Person in at 21st Age: 65 Resitles in birthdav) Aae• 21-64 and oider ICF/MR Bed [n RTC or Commun i tv Services: Eligibility: Own Nome Services: Eligibility: MA pays services � roan and board GA or MSA in canbination with other iflCOt118 pi'O vides for clothing and personal needs MA GA or MSA for shelter and basic needs CD: CD services through CDTF (MA/ FFP available) (other medical through MA) MA pays services 8 roan and board GA or MSA in combination wfth other income pro- vides for clothing and personal needs MA GA or MSA for sheiter and basic needs CD: CD services through CDTF (MA/ fFP available) (other medical through MA) MA pays services 8 roan and board MSA i n ca� i na- t3on with other income provides for clothing and Personai needs MA MSA for shelter 8 basic needs C0: CD services through COT� (MA/ FFP available) (other medicai through MA) MI: services th�ough MA MR: services through MA MA MI: services through MA MR: services through MA na SNf/ICF Level GA/MSA provides GA/MSA provides IMD not JCAH ciothing 8 PN ciothing 8 pN Accredited)_ ailowance ailowance MI: services through MA MR: services through MA na GA/MSA provides ciothing 8 PN ailowance -z- Services: CD: services 8 board 8 room through CDTF . (no fFP) C0: services 8 board 8 room through CDTf (no FFP) Eligibility: Psvchiatric Hospitai MI: no services MI: no services coverage avaitabie coverage available MR: no services MR: no services coverage availeble coverage available �ot eligibie MA rrot eligibie MA GA/MSA provides ciothing 8 PN aliowance Services: C0: room and board and services paid through CDTF/ MA FfP available MI: MA pays roan and board and services Eligibility: MI or CO Unit in Acute Care Hosaital MR: MA pays roan and board and services MA eligible GA/MSA provides clothing 8 PN allowance GA/MSA provides clothing 5 PN ailoaance CD: roan and board & services through COTF (no FFP) MI: services GAMC MR: services GAMC Not MA eligi6le GAMC eligibie GA/MSA provtdes clothing & PN ailowance' Services: CD: CDTF pays CD: COTF pays roan and board room and board 8 services (MA 8 services (MA FFP availabie) FFP availabie) MI: MA pays room and board and . services MI: MA pays room and board and services CD: services paid CDTF/MA pays room and board 8 other medical services (MA FFP avaitable? MI: MA pays services and roan and board MR: MA pays services and roan and board eligibla MA GA/MSA provides clothing 8 PN ailowance CD: services 8 room and board paid through CDTF (MA-FFP available) MI: MA pavs services and room and board MR: MA pays services and roan and board MA eitgible GA/MSA provides ciothing S PN ailowance CD: CDTF pays room and board 8 services (MA FFP available) Mi: MA pays roan and board and services Eligibility: SNF/ICF �evel IMD (JCAH Accredited) Services: Eligihility: MR: MA pays room and board and services MA eilgibie GA/NSA provides ciothing 8 PN ailowance CD:,COTF pays services (MA FFP available) MA pays roqn and board and other medical services M[: MA pays room and board and services MR: MA pays roan and board and services MA eligible JCAH Accredited IMD GA/MSA pays roan (not SNf/ICF) & board costs H( alfwav House/ (negotiated Rule 36 rates) & clothing & personal needs Services: Eligibility: CD: CDTF pays services (MA FFP available) and room and board (no FFP availabie) MA pays other medical services MI: MA pays services only MR: MA pays services only MA eligible - 3 - MR: MA pays room and board and services MA eligible GA/MSA provides clothing & PN allowance C0: CO services through CDTF (no FFP) outside medical services GAMC MI: outside medical services GAMC MR: outside medicai services GAMC Not MA eligible GA/MSA pays roan � board costs (negotiated rates) if not covered by CDTF 8 clothing 8 personal needs CD: services through CDTF (no FFP) GAMC pays other services MI: services through GAMC MR: services through GAMC Not MA eligible - GAMC eligible �i j ' MR: MA pays room and board and services MA eligibie GA/MSA provides clothing 8 PN allowance CD: CDTF pays CD services (FFP available) MA pays room and board and other medical services MI: MA pays room and board and services MR: MA pays roan a�d board and services MA eligible MSA pays room 8 board costs (negotiated rates) 8 ciothing 8 personai needs CD: CDTF pays services (MA fFP available) and room and board (no fFP available) MA pays other services M[: MA pays services oniv MR: MA pays services oniv MA eligibie M[ or CD Bed in RTC (JCAH Accredited) of 17 or more beds Services: Eligibility: MI or CD Freestandinq Residentiai Communitv Facilitv (Not JCAH ACCredited) more than 16 beds Services: GA/MSA provides clothing 8 PN aitowance CD: CDTF pays services S roan and board (MA FFP available) MA pays other services MI: MA pays services and roan and board MR: MA pays services and roan and board' MA eligible GA/MSA pays roan 8 board costs jf not covered by CDTF (negotiated rate) 8 clothing & pEi'sone l needs CD: COTF pays room 8 board CD services (no MA FFP availabie) - GAMC for medical services Mi: GAMC for medical services MR: GAMC for medical services :� GA/MSA provides clothing & PN aliowance CD: CDTf for room and board and in house services (no FFP) - GAMC for outside medical services MI: GAMC for outside medicai services MR: GAMC for outside medical services Not MA eligible - GAMC eligibie GA/MSA pavs roan 8 board costs if not covered by CDTF (negotiated rate) & ciothing 8 personal needs CD: COTF pays room 8 board CO services (no MA FFP available) - GAMC For medical services MI: GAMC for medical services MR: GAMC for medicai services Eligibility: Not MA etigible - Not MA eligible - GAMC eligible GAMC eiigible GA/MSA provides clothing & PN ailowance C0: CDTF pays services and room and board (MA FFP available) MA pays other medical services M1: MA pays services and roan and board MR: MA pays services and room and board MA eligible MSA pays room 8 board costs if not covered by CDTF (negotiated rate) 8 ciothing 8 perso�al needs C0: CDTF pays CD services (MA FFP available) 8 room and board MA pays medical services M(: MA pays services MR: MA pays services MA eligible MI or CD Free- Standinq Resid- entiat Communitv Facility not JCAH Accredited) 16 beds or less Eligibility: CD: CDTF pays room S board 8 CD ser- vices (MA FFP available on services) HA pays other medical services GA/MSA pays ciothing and personal needs MI: HA pays for medical services GA/MSA pays room and board (negoti- ated rate) and clothi�g and personai needs MA eligible -s- CD: COTF pavs room 8 board 8 CO ser- vices (MA FFP avaitable) MA pays other medi- cal services GA/MSA pays clothing and personai needs M[: MA pays for medicai services GA/MSA pays room and board (negoti- ated rate) and clothing and personal needs MA eilgible � � I CD: CDTF pays room 8 board & CD ser- vices (MA FFP avaitable) on services) MA pays other medicai services GA/MSA pays clothing and personal needs M[: MA pays for medical services GA/MSA pays room and board (negoti- ated rate7 and clothing and personal needs MA eligible § 340A.411 e LIQUOR ACT bowling ceaters. Section 5 of tlus amendment established the effective date of the amend- ment and retroactively validated bowling cen- ter on-sale licenses in effect on that date to their date of issuance. Iaws 1987, c. 152, art. 1, § 1 provides: Laws 2987, c. 5, § 3, authorized t[ie issuance lish d n�Ma nesota Statutes 986A is reen- of on-sale nonintoxicating liquor licenses to acted." Laws 1876, c. 8q § I. Iaws 3875, c. 112, § i. Laws IS70, c. 32. Gen.St1866, c. 16, § I. Laws 1866, c. 40, § 1. Pub.St.1858, c. 18, § 15. Iaws 1858, c. 74, § 1. Library References Intoxicating Liquors �44 et seq., 46, 101. C.J.S. Intoxicating Liquors §§ 90, 91, 138 to WESIT.AW Topic No. 223. 144. Notes of Decisions Club 2 � Grocery stores 3 � Milltary reservations �, riumber of llcenses , T '�� 1 ; ! would not be a prerequisite to granting of a proper license to an organization tliat would otherwise qualify. Op.Atry.Gen., 217f-2, June 16, 1967. If baseball committee was a bona fide club, 1. Number of llcenses license could be issued thereto. O At Gen., Counry boazd has authority to limit number z17-F-1, Mar. 19, 1953. p Ty of non-intoxicating malt liquor licenses to be issued, and resolution to issue no more licens- 3. Grocery stores es would be bar to consideration of any future applications for licensing until such time as On-sale license may not be issued to grocery such resolution waz rescinded. Op.Atty.Gen., stores. Op.Atty.Gen., 120, April 12, 1946; Op. 217-B-2, April 28, 1955. Atty.Gen., 217-B-5, May 29, 1945. City council had right to determine how many 3.2 beer off-sale licenses to grant. Op. 4. Military reservations Atty.Gen., 217-B-4, Feb. 7, 1449. License for sale of 3.2 beer is not required of 2. Club , a canteen operated as an adjunct or agency of A club house or other structure from which federal government. Op.Atty.Gen., 217-F-I, nonintoxicating malt liquor was to be sold June 3, 1948. 340A.412 License restrictions; intoxicating liquor licenses I, Subdivision 1. Repealed by Laws 1989, c. 49, § 8, � ' Subd. 2. InvestlgaHon of on-sale llcenses. (a) The city or county having ' jurisdiction over on-sale licenses to sell into�cating liquor shail on initiai �' application for an on-sale license or on application for a transfer of an e�sting license conduct a preliminary background and financial investigation of the applicant. The application must be in the form prescribed by the bureau of criminal apprehension and with any additional information as the governing body of the city or county having jurisdiction over the license requires. If the governing body of the city or county having jurisdiction determines or if the bureau of criminal apprehension on its own initiative determines that a comprehensive background and investigation of the appli- cant is necessary, the governing body may conduct the investigation itself or contract with the bureau of criminal apprehension for the investigation. In addition, an investigation may be required prior to renewal of an existing on-sale license when the governing body of the city or county deems it in the 94 LIQUOR ACT § 340A .412 t public interest. An investigation fee not to exceed $S00 shall be charged an } applicant by the city or county if the investigation is conducted within the state, or the actual cost not to exceed $10,000 if the investigation is required ouuide the state. S (b) No license may be issued, transferred, or renewed if the results of the � investigation show, to the satisfaction of the governing body, that issuance, i transfer, or renewal would not be in the public interest, Subd. 3. Limitations on issuance of llcenses to one person or place. (a) No more than one off-sale intoxicating liquor license may be directly or � indirectly issued to any one person or for any one place in each city or 3 county. (b) For the purpose of this subdivision, the term "interest": (1) includes any pecuniary interest in the ownership, operation, manage- ment, or profits of a retail liquor establishment, and a person who receives money from time to time directly or indirectly from a licensee, in the absence oE consideration and excluding gifts or donations, has a pecuniary interest in the retail license; and (2) does not include loans; rental agreements; open accounts or other obiigations held with or without security arising out of the ordinary and regular course of business of selling or leasing merchandise, fixtures, supplies to the establishment; an interest in a corporation owning or operating a hotel but having at least 150 or more rental units holding a liquor license in conjunction therewith; or ten percent or less interest in any other corporation holding a license. (c) In determining whether an "interesY' exists, the transaction must have been bona fide and the reasonable value of the goods and things received as consideration for a payment by the licensee and all other facts reasonably tending to prove or disprove the existence of a purposeful scheme or arrange- ment to evade the restrictions of this subdivision must be considered. Subd. 4. Licenses prohibited in certain areas. (a) No license to sell intoxicating liquor may be issued within the following areas: (1) where restricted against commercial use through zoning ordinances and other proceedings or legal processes regularly had for that purpose, except licenses may be issued to restaurants in areas which were restricted against commercial uses after the estab]ishment of the restaurant; (2) within the capitol or on the capitol grounds, except as provided under Laws 1983, chapter 259, section 9;' (3) on the state fairgrounds or at any place in a city of the first class within one-half mile of the fairgrounds, except as otherwise provided by charter; (4) on the campus of Minnesota or at any place the campus. provided that area that is not included provided by charter; the college of agriculture of the University of in a city of the first class within one-half mile of a city may issue one on-sale wine license in this in the area described in clause (3), except as � t '� � 95 § 340A.412 ��'`�� LIQUOR ACT (5) within 1,000 feet of a state hospital, training school, reformatory, prison, or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commissioner of corrections; (6) in a town or municipality in which a majority of votes at the last election at which the question of license was voted upon were not in favor of license under section 340A.416, or within one-half mile of any such town or municipality, except that intoxicating liquor manufactured within this radius may be sold to be consumed outside it; (7) at any place on the east side of the Mississippi River within one-tenth of a mile of the main building of the University of Minnesota unless the licensed establishment is on property owned or operated by a nonprofit corporation organized prior to January 1, 1940, for and by former students of the University of Minnesota; (8) within 1,500 feet of a state university, except only 1,200 feet from Winona and Southwest State University, provided that within 1,500 feet of St. Cloud State University one on-sale wine and two off-sale intoxicating liquor licenses may be issued, measured by a direct line from the nearest corner of the administration building to the main entrance of the licensed estabiish- ment except at Mankato State University the distance is measured from the front door of the student union of the Highland campus; and (9) within 1,500 feet of any public school that is not within a city. (b) The restrictions of this subdivision do not apply to a manufacturer or wholesaler of intoxicating liquor or to a drugstore or to a person who had a license originally issued lawfully prior to July 1, 1967. Subd. 5. Licenses in connection with premises of another. An intoacicat- ing liquor license may not be issued to a person in connection with the premises of another to whom a license could not be issued under the provisions of this chapter. This subdivision does not prevent the granting of a license to a proper lessee because the person has leased the premises of a minor, a noncitizen who is not a resident alien, or a person who has been convicted of a crime other than a violation of this chapter. Subd. 6. Off-sale licenses where nonintoxicating malt liquor is sold. An ofF-sale intoxicating liquor license may not be issued to a place where nonintoxicating malt liquor is sold for consumption on the premises. This subdivision does not apply to those places where both an on-sale and off-sale license or a combination license have been issued under section 340A.406. Subd. 7. Drugstores. No intoxicating liquor license may be issued to a person operating a drugstore unless the person has operated it for at least two yeazs or has purchased a drugstore that has been in continuous operation for two or more years. Subd. 8. Expiration date. All intolcicating liquor licenses issued by a county or a city, other than cities of the first class, must expire on the same date. Subd. 9. License transfer. A license may be transferred with ihe consent of the issuing authority, provided that a license issued to a location at a 96 1 ., qq' STATE OF MINNESOTA) ) ss COUNTY OF HENNEPII� AFFIDAVIT OF SERVICE BY U.S. MAIL CINDY A. RINGDAHI., being fust duly swom, hereby deposes and says that on the 13TH day of � 1999, at the City of Minneapolis, county and state aforemenrioned, she served the attached FINDINGS OF FACT, CONCLUSIONS AND RECOMn�NDATION; 1-2111-12199-3 by depositing in the United States maIl at said City of Minneapolis, a true and correct copy thereof, properly enveloped, with first class postage prepaid and addressed to the individuals named herein. VIRGINIA PALMER ASSISTANT CITY ATTORNEY 400 CITY HAI.L 15 W KELLOGG BLVD ST PAUL MN 55102 KENNETH M BOTTEMA, ESQ. 3001 HENNEPIN AVE S SUITE 309B MINNEAPOLIS MN 55408 FRED OWUSU, CITY CLERK 170 CITY HAI.L 15 WEST KELLOGG BLVD ST PAiTL MN 55102 Subscribed and sworn to before me( this �3�– day of ___\� L� �_ 1998. 7�f C� �`-�/✓L27c7�Ci Notary P} lic / . nnnn��,nnnnnnnnnnnnnnMnM.'NAM/NM• ` CINDY ETIENNE � < S �� NOTARY PUBLIC-MINNESOTA }�„ �� ANOKACOUNTY � My Comm. Expires Jan. 31, 2000 q yyyyyyyyyyVWWVWVVNi vVVWVVVVVW • �� i s 1-2111-12199-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY COUNCIL OF THE CITY OF SAINT PAUL In Re the License Application of Vernon W. Crowe, d/b/a Selby Wine & Spirits, for the Premises Located at 778 Selby Avenue in St. Paul FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION Administrative Law Judge George A. Beck, serving as a hearing examiner for the City of St. Paul, conducted a hearing in this matter beginning at 9:30 a.m. on Thursday, June 3, 1999, at the St. Paul City Hall. The record closed upon receipt of the final written memorandum on June 30, 1999. The Applicant, Vernon W. Crowe, was represented by Kenneth M. Bottema, Esq., 3001 Hennepin Avenue South, Suite 309B, Minneapolis, Minnesota 55408. The St. Paul Office of License Inspections and Environmental Protection (LIEP) was represented by Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102. NOTICE This Report is a recommendation, not a final decision. The St. Paul City Council will make the final decision after reviewing the record and may adopt, reject or modify these Findings of Fact, Conclusions and Recommendations. Under § 310.05(c-1) of the City's Legislative Code, the City Council will provide the Applicant the opportunity to present oral or written argument to the City Council before it takes final action. The parties should contact the St. Paul City Council to determine the procedure for presenting argument. STATEMENT OF ISSUE The issue in this case is whether or not the City of St. Paul should grant an off-sale liquor license to the Applicant for 778 Selby Avenue. Based upon the evidence and argument in the record, the Administrative Law Judge makes the following: q�-$�� FINDINGS OF FACT 1. Vernon W. Crowe submitted an application to the City dated October 5, 1998, for an off-sale liquor license at 778 Selby Avenue in St. Paul, doing business as Selby Wine & Spirits, Inc.' 2. The proposed location is approximately 340 feet from the Dayton Residence located at 340 Dayton Avenue? 3. The Dayton Residence is a residential treatment program for adults with mental iliness. It is licensed for 26 beds. It is 100 percent funded by the State of Minnesota. 4. The Dayton Residence is licensed by the Department of Human Services (DHS). DHS makes a site visit to the facility every two years to review its staff, procedures and services. The treatment for residents of Dayton Residence is funded through consolidated mental health grants which are allocated by DHS to Ramsey County. Room and board at the facility is funded through individual client grants. 5. The Dayton Residence is administered by a qualified person licensed by DHS. DHS personnel are not present day to day at the residence. The Department has authority to step in and supervise at the residence if necessary. 6. DHS classifies the Dayton Residence as an institution for mental diseases (IMD) which is defined under federal law to be "a hospital, nursing facility, or other institution and more than 16 b€ds, that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services." 4 7. The Dayton Residence is not a state hospital, training school, reformatory or prison. 8. On April 8, 1999, Mr. Crowe was issued a Notice of Proposed Denial of License Application. The sole grounds of the denial was that the proposed location for the off-sale liquor license was within 1,000 feet of the Dayton Residence. The notice advised Mr. Crowe that he was entitled to a hearing. ' EX. l. z EX. z. ' 42 U.S.C.1396d. ° Ex. 5. 5 Ex. 3. 7 q �'$��' 9. Mr. Crowe requested a hearing and a Notice of Hearing was issued on May 3, 1999, setting the hearing for June 3, 1999 6 10. Two members of the public testified at the hearing in support of the application. 11. LIEP had no other objections to this application apart from its proximity to the Dayton Residence. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. The St. Paul City Council and the Administrative Law Judge have authority to conduct this proceeding and to make Findings of Fact under Minnesota law and the St. Paul City Code.� 2. The City of St. Paul gave Mr. Crowe proper and timely notice of the hearing in this matter. 3. The burden of proof in this proceeding is upon the applicant. 4. Minn. Stat. § 340A.412, subd. 4(5), prohibits the issuance of an intoxicating liquor license: within 1,000 feet of a state hospital, training school, reformatory, prison or other institution under the supervision or control, in whole or in part, of the Commissioner of Human Services or the Commissioner of Corrections; 5. The applicant has demonstrated that the Dayton Residence is not an institution under the supervision or control of the Commissioner of Human Services. 6. The proposed location at 778 Selby Avenue is not in violation of Minn. Stat. § 340A.412, subd. 4(5). 7. The exhibits attached to the applicanYs brief are stricken from the record. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: 6 Ex. 4. ' St. Paul Legislative Code § 310.05-.06; Minn. Stat. § 14.55; Minn. Stat. § 340A.415. 3 q�'$�� RECOMMENDATION IT IS HEREBY RESPECTFULLY RECOMMENDED: that the City Council of the City of St. Paul approve the off-sale liquor license application of Vernon W. Crowe, d/b/a Selby Wine & Spirits. Dated this 13 day of July 1999. ,� ��l�._ GEORGE A. B K Administrative Law Judge Reported: Taped-no transcript prepared. MEMORANDUM The City of St. Paul disapproved the off sale liquor license application of Vernon W. Crowe based upon its good faith determination that the proposed location was within 1000 feet of an institution under the supervision or control of the Commissioner of Human Services, namely, the Dayton Residence. The Dayton Residence is a 26 bed residential treatment program located at 340 Dayton Avenue in St. Paul. It is licensed by the Department of Human Services which conducts site visits at the facility and funds the facility. This case presents a question of statutory interpretation, namely, whether a residential treatment program is an institution under the supervision or control of the Commissioner of Human Services, within themeaning of Minnesota liquor law. The objective of statutory interpretation is to ascertain and effectuate the intention of the legislature. The applicant must demonstrate that its proposed location at 778 Selby Avenue complies with the statute set out at Conclusion No. 4. He first asserts that the Dayton Residence is not an institution within the meaning of the statute. He points out that Minnesota law does not define the Dayton Residence as an institution but describes it as a"residential program". "institution" is not defined in Minnesota law. The City notes that words used in the statutes are to be interpreted according to their plain and ordinary meaning. It points out that one dictionary definition of institution includes "a public or private place for the care or confinement of inmates, esp. mental patients or other disabled or handicapped persons.' It is also defined as "a place for the care of persons who are destitute, 8 Cummings v. Koehnen, 556 N.W2 586, 589 (Minn. App 1996) 9 Minn. Stat. § 645.08(1) 10 Random House Dictionary of the English Language, (2" Ed. Unabridged 1987) 4 q��$�� disabled, and mentally ill." The City argues that the Dayton residence is a building used for the care of inentally ill adults and therefore falls within the dictionary definition of "institution". The City also cites case law from other jurisdictions that interprets the word "institution" . As the City acknowledges, however, that case law is necessarily specific to the statute being examined and does not provide much precedent for Minnesota liquor law. It does not appear that the legislative intent was to include residential facilities within the prohibition contained in Minn. Stat. § 340A.412, subd. 4(a)(5). At the hearing the City relied upon the federal definition contained in a regulation that classifies the Dayton Residence as an irtstitution for mental disease. That definition, however, was adopted for the implementation of federal law decisions, such as medical assistance funding, and has no particular applicability to Minnesota liquor law. The City also argues that because the word institution as used in the statute is not modified by words such as "similar" or "such", the question is not whether the other institutions are sufficiently like state hospitals, training schools, reformatories or prisons, but simply whether fhey are an insfitution of any kind. However, the legislature chose to specify "other" institutions rather than "every" institution. Furthermore, this argument ignores the legal principle of ejusdem generis, which is codified in Minnesota Statutes. This canon of construction provides that general words are construed to be restricted in their meaning by preceding particular words." For example, in a recent case the Minnesota Supreme Court had to decide whether a blood bank was included within the category of "a hospital, sanitarium, nursing home or other institution for the hospitalization or care of human beings." The Court noted that by listing hospitals, sanitariums and nursing homes before the more general "other institutions", the legislature indicated an attempt to include only those institutions which share common characteristics with the specific institutions listed. The word institution, therefore, cannot be interpreted without reference to the preceding particular words. State hospitals, training schools, reformatories or prisons are distinctly different from residential facilities commonly located throughout communities. The facilities cited are all places of confinement. Another dictionary definition of institution is "� place of confinement, as in a mental asylum". It seems likely that the legislature intended this prohibition to apply to institutions similar to those specifically named where inmates or patients are confined and separated from the community. The applicant also argues that the Dayton Residence is not under the supervision or control of the Commissioner of Human Services. He suggests " American Heritage College Dictionery (3` Ed. 1993) 12 Minn. Stat. § 645.08(3) 13 Kaiser v. Memorial Blood Center of Mpls., Inc. 486 N.W.2d 762 (Minn 1992) 14 486 N.W.2d at 766 15 American Heritage College Dictionary, (2° Ed., 1982) � aq�$��e that licensure is different from supervision or control. He cites a dictionary definition of supervise as "to have the charge and direction of; superintend." A dictionary definition of "control" defines it as "to exercise authoritative or dominating influence over; direct".�� He notes that department personnel testified that the department is responsible for monitorina the program and argues that this is not supervision or control. The City points out that the Department of Human Services conducts background investigations on staff, investigations of complaints, does site visits, adopts rules setting standards for the facility and has the authority to assume control of the program if necessary. It points out that the statute talks about supervision or control "in whole or in part" which implies something less than full management or staffing by the department. It notes that the statute could have specifically stated that it only applied to institutions owned, operated or staffed by the department, but does not do so. As noted above, words in statutes are to be construed according to their common and approved usage. The common dictionary definition suggests that the legislature intended that the commissioner have charge of the institution, or direct the institution, in order to bring it within this prohibition. The commissioner clearly supervises and controls state hospitals, for example. The departmenYs licensing and enforcement functions as described in this record do not rise to that level. Since the proximity of the Dayton Residence was the only objection presented by the City to this application, it is recommended that the City Council approve the application. The applicant submitted four exhibits attached to its post-hearing memorandum. The City objected to their inclusion in the record. Since these exhibits were not offered at the hearing and the City did not have an opportunity to review or object to the exhibits, they must be strickert from the record. � 16 American Heribge Dictionary (1999) ° American Heritage Dictionary (1999) 18 Minn. Stat. § 645.08(1) v CITY OF SAINT PAUL Norm Colemnn, Mayor _ _- � ' — �--' rn '�;�,�: - y �.�i ��QE �� .��t_ . .. . �� J May 3, 1999 OFFICB OF THE CITY ATTORNEY �� Clayton M. Robinson, Jr., City Attorney i Civi[Division 400 Gry HuI( IS West Kellogg Blvd Sa+nt Paul, Minnesot¢ 55102 Telephonc 6 572668710 Fncsimile: 65I 298-5619 NOTICE OF HEARING Mr. Vernon W. Crowe 650 Dayton Avenue Saint Pa11, Minnesota 55104 RE: License appiicafion of Mr. Vernon W. Crowe d/b/a Selby Wine & Spirits for the premises located at 778 Selby Ave. in St. Paul Our File Number: G99-0154 Dear Mr. Hannon: Please take notice that a hearing will be held at the following time, date and place conceming the license application for the premises stated above: Date: Thursday, June 3,1999 Time: 9:30 a.m. Place: Room 40-A St. Paul City Hall 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 The hearing will be presided over by an Administrarive Law Judge from the State of Minnesota Office of Administrative Hearings: Name: George A. Beck Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN, 55401 Telephone: 612-341-7601 � qq ,� �� The Council of the City of Saint Paui has the authority to provide for hearings concerning licensed premises and for adverse action against such licenses and applications, under Chapter 310, including sections 310.05 and 310.06, of the Saint Pau1 Legislative Code. In the case of licenses for intoxicating and non-into�cating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include denial, revocafion, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action against the license application submitted for the above premises as follows: Minn. Stat. §340A.412, subd. 4(5) prohibits the issuance of an intoxicating liquor license "within 1,000 feet of a state hospital, training school, reformatory, prison or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commission of corrections." The Daytan Residence, located at 740 Dayton Avenue, is Iicense by the Department of Human Services ans is located within 1,000 feet of your proposed location, The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrarive Law Judge will have a11 parties identify themselves for the record. The City will then present its witnesses and evidence, each of whom the Iicensee or attorney may cross-examine. The licensee or their attorney may then offer in rebuttal any witnesses or evidence they may wish to present, each of whom the City's attomey may cross-examine. The Administrative Law Judge may in addition hear relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants ofproperty located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding azguments may be made bY the parties. Following the hearing, the Judge will prepare Findings of Fact, Conclusions of Law, and a specific recoxnmendation for action to be taken by the City Council. 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 Minnesota Rules, part 1400.7000. 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 the licensee ar their representative fails to appeaz at the hearing, the licensee's ability to challenge the allegations will be forfeited and the allegations against the licensee which have baen stated earlier in this notice may be taken as true. If non-public data is received into evidence at the hearino, Notice of Hearing - Page 2 ,it may become public unless objection is znade and relief requested under Minnesota Statutes,� r � Section 14.60, subdivision 2. If you have any questions, you can cail me at 266-8710. Very truly yours, _�� Virginia D. Palmer Assistant City Attorney cc: Mr. Thomas D. Hannon, Wagner, Falconer & Judd, Ltd, 3500 IDS Center, Minneapolis, MN 55402 Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Community prganizer District 8, Summit-University Plamiing Council, 627 Selby Ave., St. Pau1, MN 55104 Notice of Hearing - Page 3 Qi�tt7��tlt Presented B� Referred To RESOLUTION Council File # 99 - g 1 !, Green Sheet # � �3 1 WI�REAS, the Office of License, Inspections and Environmental Protecrion (LIEP) 2 recommended denial of an off-sale liquor license application by Vernon W. Crowe d/b/a Selby 3 Wine & Spirits , for the premises at 778 Selby Avenue, pursuant to Minn. Stat. §340A.412, subd. 4 4(5), asserting that the Dayton Residence at 340 Dayton Avenue was "an institution under the 5 supervision or control, in whole or in part, of the Commissioner of Human 5ervices"; and 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 WfIEREAS, a hearing was held before Administrative Law Judge George A. Beck on June 3, 1999 and he issued Findings of Fact, Conclusions of Law and Recommendation on July 13, 1999 in which he determined that the Dayton Residence was not the type of institution contemplated by §340A.412, subd. 4(5), and recommended issuance of the off-sale liquor license; and WIIEREAS, at the City Council hearing on August 11, 1999, LIEP did not file exceptions to the Report but recommended the adoption of the ALJ's Report and Recommendation; now, therefore, be it RESOLVED, that the Council of the City of Saint Paul, after due deliberation based upon all of the files, records and proceedings herein, adopts the ALJ's Findings, Conclusions and Recommendation, and the same shall be attached and incorporated herein by reference; and be it CITY OF SAINT PAUL, MINNESOTA ' y 99 -�i� 2 FURTHER RESOLVED, that the application of Vernon Crowe, d/b/a Selby Avenue 3 Wine & Spirits for an off-sale liquor license at 778 Selby Avenue, is hereby approved and said 4 license shall be issued. 6 A copy of this Resolution, as adopted, shall be sent by first class mail to the Licensee, his 7 attorney and the Admanistrafive Law Judge. Requested by Department of: Ey: Form Apprave� by City Atto €y'� _J sy: i y�_ Approved by M or for Submission to Covncil By: By: Appsoved by May te � qq BY: Adopted by Council: Date S l� `� Adoption Certified by Council S etary `t9 - s�b DEPARTMENT/OFFICE(COUNCIL OAiE WmpTEO City Council Offices $-13-99 GREEN SHEET No 63434 COMAC7 PERSON & PFIONE ��#e �nrclauoaze Jerry Blakey, 26b-8610 ot,.R..a.w¢c.oa anconxx MUST BE ON COUNCIL AGENDA BY (OA'fE) ❑ ❑ August 25, 1999 �" MUYBERFOR tlIYATiOMtEY Grvd.flfK ROUTING � ❑RYNfILLfFME4GBt ql�lllWLiEPVIACCTG ❑ WYORIORASpYfNlII ❑ . TOTAL # OF SIGNATURE PAGES (CLJP ALl LOCATIONS FOR SIGNATURE) C710N REQl1ES7m Approving application for an off-sale liquor license by Vernon Crowe, DBA Selby Avenue Wine and Spirits, at 778 Se1by Avenue. RECOMMENDATION Approve O a Rejed (R) VERSONALSERVICE CONTRACfS MUSTANSWER THE FOLLOWING Q1IESTIONS: 1. Has this persoNfirm ever worked under a wntract tor Mis department� PLANNING COMMtSStON vES w0 CIB COMMITTEE 2. Hes �his pereon/firm ever been e Cily empbyee� CIVILSERVICECAMMISSION VES NO 3. Does ihis pxsoNfirm possess a sitill not namaltypossessetl by any curteM cdy employee? YES � a. Is Mis persoMrm a taro�d `rendoR YES NO Fxplain all yes answers on sepaiate sheet and attach to preen shee[ INITIATING PROBLEM ISSUE, OPPORTUNITY (Whq Wliat, When, WhNe, Why) ADVANTAGESIFAPPROVED ��'•� k'i��E�A�� V�:��:�'u7� . , _ _ . AUG 1 3 19�9 DISADVANTAGES IFAPPROVED � DISADVANTAGES IF NOT APPROVE� � TOTAL AMOUNT OF TRANSACTION S COST/REVENUE BUDGETED (CIRCLE ON� YES NO FUNOING SOURCE ACTMTY NUMBER FINANGPL INFORMATION (IXPlA1N) _ OFFICE OF THE CITY ATTORNEY Clayton M. Robinson, Jr., CityAnanrey 9g-$�� ua � CITY OF SA1NT' PAUL Norm Coleman, Mayor May 11, 1999 Civi[Division 900CiryHall Telephone:657166-8710 I S Wes1 Kellogg B/vd Facsimile: 65! 298-5619 Saint P¢vl, �nnesot¢ SSIO2 NOTICE OF COUNCIL HEARING ��ts�;;� ��;� ��, Mr. Kenneth M. Bottema 3001 Hennepin Avenue South, Suite 309B Mimieapolis, Minnesota 55408 RE: License application of Vernon W. Crow d/b/a Selby Wine and Spirits For the premises located at 778 Selby Avenue in St. Paul Our File Number: G99-0154 Dear Mr. Bottema: , �, � � 1�g9 r ;�",Ff�."`��', ;CL�v�r:�?'?'i�c.:.a JUL 1 � ��' Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, August 11,1999, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opporhuiity to file exceptions to the report with the City Clerk at any time during normal business hours. You may also present oral or written azgument to the council at the Hearing. No new evidence will be received or testimony taken at this hearing. The Council wiil base its decision on the record of the proceedings before the Administrative Law Judge and on the arguments made and exceptions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its judgement and discretion. Sincerely, �� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Chrisfine Rozek, LIEP Carmen Berg, Executive Director, Summit-University Planning Council, 627 Selby Ave., St. Paul, MN 55104 °Iq-gll. 1-2111-12199-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY COUNCIt OF THE CITY OF SAINT PAUL In Re the License Application of Vernon W. Crowe, d/b/a Selby Wine & Spirits, for the Premises Located at 778 Selby Avenue in St. Paul FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION Administrative Law Judge George A. Beck, serving as a hearing examiner for the City of St. Paul, conducted a hearing in this matter beginning at 9:30 a.m. on Thursday, June 3, 1999, at the St. Paul City Hall. The record closed upon receipt of the final written memorandum on June 30, 1999. The Applicant, Vernon W. Crowe, was represented by Kenneth M. Bottema, Esq., 3001 Hennepin Avenue South, Suite 309B, Minneapolis, Minnesota 55408. The St. Paul O�ce of License Inspections and Environmental Protection (LIEP) was represented by Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102. NOTICE This Report is a recommendation, not a final decision. The St. Paul City Council wiil make the final decision after reviewing the record and may adopt, reject or modify these Findings of Fact, Conclusions and Recommendations. Under § 310.05(c-1) of the City's Legislative Code, the City Council wiil provide the Applicant the opportunity to present oral or written argument to the City Council before it takes final action. The parties should contact the St. Paul City Council to determine the procedure for presenting argument. STATEMENT OF ISSUE The issue in this case is whether or not the City of St. Paul should grant an off-sale liquor license to the Applicant for 778 Selby Avenue. Based upon the evidence and argument in the record, the Administrative Law Judge makes the following: aq-S�c. FINDINGS OF FACT 1. Vernon W. Crowe submitted an application to the City dated Ocfober 5, 1998, for an off-sale liquor license at 778 Selby Avenue in St. Paul, doing business as Selby Wine & Spirifs, Inc.� 2. The proposed location is approximately 340 feet from fhe Dayton Residence located at 340 Dayton Avenue. 3. The Dayton Residence is a residential treatment program for aduits with mental illness. It is licensed for 26 beds. It is 100 percent funded by the State of Minnesota. 4. 7he Dayton Residence is licensed by the Department of Human Services (DHS). DHS makes a site visit to the facility every two years to review its staff, procedures and services. The treatment for residents of. Dayton Residence is funded through consolidated mental health grants which are allocated by DHS to Ramsey County. Room and board at the faciliry is funded through individual client grants. 5. The Dayton Residence is administered by a qualified person licensed by DHS. DHS personnel are not present day to day at the residence. The Department has authority to step in and supervise at the residence if necessary. 6. DHS classifies the Dayton Residence as an institution for mental diseases (IMD) which is defined under federal law to be "a hospital, nursing facility, or other institution and more than 16 b�ds, that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services ° 4 7. The Dayton Residence is not a state hospital, training schooi, reformatory or prison. 8. On �prif 8, 1�99, P/ir. Lrowe was issued a iVoiice of Proposed Deniai of License Application. The sole grounds of the denial was that the proposed location for the off-sale liquor license was within 1,000 feet of the Dayton Residence. The notice advised Mr. Crowe that he was entitied to a hearing 5 ' EX. i. Z Ex. z. ' 42 U.S.C.1396d. ` Ex. 5. 5 Ex. 3. � aq-�� 9. Mr. Crowe requested a hearing and a Notice of Hearing was issued on May 3, 1999, setting the hearing for June 3, 1999 6 10. Two members of the public testified at the hearing in support of the application. 11. LIEP had no other objections to this application apart from its proximity to the Dayton Residence. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. The St. Pau! City Co�ncil and the Administrative Law Judge have authority to conduct this proceeding and to make Findings ofi Fact under Minnesota law and the St. Paul City Code.' 2. The City of St. Paul gave Mr. Crowe proper and timely notice of the hearing in this matter. 3. The burden of proof in this proceeding is upon the applicant. 4. Minn. Stat. § 340A.412, subd. 4(5), prohibits the issuance of an intoxicating liquor license: within 1,000 feet of a state hospital, training school, reformatory, prison or other institution under the supervision or control, in whole or in part, of the Commissioner of Human Services or the Commissioner of Gorrections; 5. The applicant has demonstrated that the Dayton Residence is not an institution under the supervision or control of the Commissioner of Human Services. 6. The proposed location at 778 Seiby Avenue is not in violation of Minn. Stat. § 340A.412, subd. 4(5). 7. The exhibits attached to the appiicanYs brief are stricken from the record. Based upon the foregoing Conciusions, the Administrative Law Judge makes the following: 6 Ex. 4. ' St. Paul Legislative Code § 310.05-.06; Minn. Stat. § 1455; Minn. Stat. § 340AA 15. 3 _, . q4 -$�t. RECOMMENDATION IT lS HEREBY RESPECTFULLY RECOMMENDED: fhat the City Council of the City of St. Paul approve the off-sale liquor license application of Vernon W. Crowe, d/b/a Selby Wine & Spirits. Dated this 13 day of July 1999. �o ��-_ GEORGE A. B :administrative Law Judge Reported: Taped-no transcript prepared. MEMORANDUM The City of St. Paul disapproved the off sale liquor license application of Vernon W. Crowe based upon its good faith determination that the proposed location was within 1000 feet of an institution under the supervision or control of the Commissioner of Human Services, namely, the Dayton Residence. The Dayton Residence is a 26 bed residential treatment program located at 340 Dayton Avenue in St. Paul. lt is licensed by the Department of Human Services which conducts site visits at the facility and funds the facility. This case presents a question of statutory interpretation, namely, whether a residential treatment program is an institution under the supervision or control ofi the Commissioner of Human Services, within themeaning of Minnesota fiquor law. The objective of statutory interpretation is to ascertain and effectuate the intention of the legislature 8 The applicant must demonstrate that its proposed location at 778 Sefby Avenue complies with the statute set out at Concfusion No. 4. He first asserts that the Dayton Residence is not an institution within the meaning of the statute. He points out that Minnesota law does not define ihe Dayton Residence as an institution but describes it as a"residentiai program". "Institution" is not defined in Minnesota law. The City notes that words used in the statutes are to be inferpreted according to their plain and ordinary meaning. It points out that one dictionary definition of institution includes "a public or private place for the care or confinement of inmates, esp. mental patients or other disabled or handicapped persons. It is also defined as "a place for the care of persons who are destitute, 8 Cummings v. Koehnen, 556 N.W.2"" 586, 589 (Minn. App 1996) 9 Minn. Stat. § 645.08(1) 10 Random House Dictionary of the English Language, (2°' Ed. Unabridged 1987) 4 � o�q - 81�. disabled, and mentally ill." The City argues that the Dayton residence is a building used for the care of inentally ill adults and therefore falls within the dictionary definition of "institution". The Cify also cites case law from other jurisdictions that interprets the word "institution" . As the City acknowledges, however, that case law is necessarily specific to the sfatute being examined and does not provide much precedent for Minnesofa liquor law. It does not appear that the legislative intent was to include residential facilities within the prohibition contained in Minn. Stat. § 340A.412, subd. 4(a)(5). At the hearing the City relied upon the federai definition contained in a regu{ation that classifies the Dayton Residence as an institution for mental disease. That definition, however, was adopted for the impfementation of federa{ faw decisions, such as medical assistance funding, and has no particular applicability to Minnesota fiquor iaw. The City also argues that because the word institution as used in the statute is not modified by words such as "similar" or "such", the question is not whether the other institutions are sufficiently like state hospitals, training schools, reformatories or prisons, but simply whether they are an institution of any kind. Ftowever, the legislature chose to specify "other' institutions rather than "every" institution. Furthermore, this argument ignores the legal principle of ejusdem generis, which is codified in Minnesota Statutes. This canon of construction provides that "general words are construed to be restricted in their meaning by preceding particular words." For example, in a recent case the Minnesota Supreme Court had to decide whether a blood bank was inciuded within the category of "a hospital, sanitarium, nursing home or other institution for the hospita�ization or care of human beings." 7he Court noted that by listing hospitals, sanitariums and nursing homes before the more generat "other institutions", the legislature indicated an attempt to inciude only those institutions which share common characteristics with the specific institutions listed. The word institution, therefore, cannot be interpreted without reference to the preceding particular words. State hospitais, training schoofs, reformatories or prisons are distinctly different from residential facilities commonly located throughout communities. The facitities cited are afl ptaces of confinement. Another dictionary definition of institution is "a place of confinement, as in a mental asylum". it seems likefy that the legislature intended this prohibition to apply to institutions similar to those specifically named where inmates or patients are confined and separated from the community. The applicant also argues that the Dayton Residence is not under the supervision or control of the Commissioner of Human Services. He suggests '� American Heritage College Dictionery (3r Ed. 1993) � Minn. Stat. § 645.08(3) " Kaiser v. Memorial Blood Center of Mpls., Inc. 486 N.W2d 762 (Minn 1992) 14 486 N.W.2d at 766 15 American Heritage College Dictionary, (2" Ed., 1982) 5 _ . _ �y_�'1` that licensure is different from supervision or control. He cites a dictionary definition of supervise as "to have the charge and direction of; superintend." A dictionary definition of "control" defines it as "to exercise authoritative or dominating influence over; direct° �� He notes that department pecsonnet testified that the department is responsible for monitorinq the program and argues thaf this is not supervision or control. The City points out that the Department of Human Services conducts background investigations on staff, investigations of complaints, does sife visits, adopts ru�es setting standards for the facility and has the authority to assume control of the program if necessary. It points out that the statute talks about supervision or control "in whole or in part" which implies something less than full management or staffing by the department. it notes that the statute couid have specifically stated that it only applied to institutions owned, operated or stafFed by the department, but does not do so. As noted above, words in statutes are to be construed according to their common and approved usage.� The common dictionary definition suggests that the legisfature intended that the commissioner have charge of the institution, or direct the institution, in order to bring it within this prohibition. The commissioner clearly supervises and controls state hospitals, for example. The departmenYs licensing and enforcement functions as described in this record do not rise to that level. Since the proximity of the Dayton Residence was the only objection presented by the City to this application, it is recommended that the City Council approve the application. The applicant submitted four exhibits attached to its post-hearing memorandum. The City objected to their inclusion in the record. Since these exhibits were not offerp� �` *�� hear:.y and the City did not have an opportunity to review or object to the exhibits, they must be stricken from the record. C��i. 16 American Heritage Dictionary (1999) "American Heritage Dictionary (1999) 18 Minn. Stat. § 645.08(1) 0 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS �I 100 Washington Square, Suite 1700 G�--� �P 1 �0 Washington Avenue South � Minneapolis, Minnesota 55401-2138 July 15, 1999 Fred Owusu, City Clerk 170 City Hall 15 West Kellogg Boulevard St. Paul, Minnesota 55102 Re: In the Matter of the License Application of Vernon W. Crowe d/b/a Selby Wine & Spirits for the Premises Located at 778 Selby Avenue in St. Paul, G99-0154; OAH Docket No. 1-2111-12193-3. Dear Mr. Owusu: Enclosed is a copy of the tape recording from the hearing in the above referenced matter held on June 3, 1999. The record was returned to you on July 13. Sincerely, ; ��2� Sandra A. Haven Administrator of Office Services Telephone: 612/341-7642 Enc. Providing Impartial Hearings for Government and Citizens An Equal Opportunity Employer Administrative Law Section 8 Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 % F i _ T � -- � : �. .' � .. .. .. ,. . ,�'�_. � �� ': , ✓F� �m\ j.; y � � ✓ � ,,"�F'�.v . . �-�. �7' � tl�� ^� � STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS �n ��1� 100 Washington Square, Suite 1700 �� 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 ��CE��E� July 13, 1999 JUL 141999 c�� c�� Fred Owusu, City Clerk 170 Ciry Hall\ 15 West Kellogg Blvd. St. Paul, MN 55102 RE: In the License Application of Vernon W. Crowe, d/b/a Selby Wine & Spirits File No. 1-2111-121199-3 Dear Mr. Owusu: Enclosed herewith and served upon you by mail is the Administrative Law Judge's Findings of Fact, Conclusions and Recommendation in the above- entitled matter. Also enclosed is the official record, the hearing tapes from which will be sent to you under separate cover. Our file in this matter is now being closed. Sincerely, < �>��1-� � � iK,�e °°��' GEORGE A. BECK Administrative Law Judge Telephone: 612/341-7601 GA :cr cc: Kenneth Bottema Virgaaia Palmer Providing Impartial Hearings for Government and Citizens A Eq ual Opportunity Employer Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 "(� `,�r . iy�v^ " CITY OF SAINT PAUL — �- OFFICE OF TF� CTI`P ATTORNEY / f� ClaytonM Robinson, Jr., CiryA#arney ( 7(�i$ � ,�{� Y Civil Division NormColemmt,Mayor t?^ �"�! �'? F,,; �'' �'j 400CityHaZ1 Telephone:651266-8710 "�" �" �. v ]5 West Kellogg BZvd Facsimile: 657 298-5679 � • � - - = Saint Paul, Minnesota SSIO2 Y.. ' . J _ . � i�" f:J'.: June 29, 199 The Honorable George A. Beck Adiniuistrafive Law Judge Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN 55401 RE: In the Matter of the License Application of Vernon W. Crowe, dlb/a Selby Wine & Spirits Dear Judge Beck: Enclosed please find a copy of the City's Fina1 Argument in the above-entitled matter. I note that the case was incorrectly identified in the caption on the CiTy's Proposed E�ibit List. A copy of the Fina1 Argument has been served by mail upon Mr. Bottema, and a copy was sent to him via facsimile on today's date. Sincerely, ��/�� Virginia D. Palmer Assistant City Attorney cc: Kenneth Bottema r OFFICE OF THE CITY ATTORNEY �('j �� Claylon M. Robinson, Jr., City Attorney `��. Mr. Kenneth M. Bottema 3001 Hennepin Avenue So., St. 309B Minneapolis, MN 55408 CivilDivision �, C !� ^ ( � � _- �� 400CityNall Telephone: 651266-8710 ""—' �--� ISWest%IloggBlvd Facsimile:651298-5619 �, � ,� ,. � „ ,� vj Sain! Paul, Minnesola 55102 .irV..i.�..� Y.� ��b/ t „ ALi' i� r �. - ,.,.i ��.. RE: In re the license application of Vernon W. Crowe, d/b/a Selby Wine & Spirits Deaz Mr. Bottema: Bnclosed and served upon you by United States Mail please find the City's Final Argument in the above-entitled matter. Please feei free to contact me lf you have any questions. CITY OF SAINT PAUL Norm Coleman, Mayor Wr June 29, 1999 Sincerely, �� Virgim Assistant City Attorney cc: The Honorable GeorgeA. Beck I a��$�� STATE OFFICE OF ADMINISTRAT'IVE HEARINGS rY =- �' ='' '" � ��,�_ FOR TI� COUNCIL OF THE CITY OF SAINT PAUL �= ��: � �- �. = �� -. ;.�,..:.:.',� . i:�� .. :�� In re the license application of Vemon CITY'S FINAL ARGLIMENT W. Crowe d/b/a Selby Wine & Spirits BACKGROUND This matter involves an application for an off-sale liquor license by Vemon Crowe, dibla Selby Wine & Spirits for the premises located at 778 Selby Avenue, in Saint Paul. The issue to be determined is whether the presence of the Dayton Residence, located at 740 Dayton Avenue, prohibits the issuance of this license in light of Minn. Stat. §340A.412, subd. 4(a)(5), which prohibits the issuance of an intoxicating liquor license "within 1,000 feet of a state hospital, training schooi, reformatory, prison or other insritution under the supervision or control, in whole or in part, of the commissioner of human services or the commissioner of corrections." A hearing was held on 7une 3, 1999, at which time the City presented the testimony of three witnesses, and submitted five e�ibits. The license applicant did not submit e�ibits nor did he offer testimony, although two citizens at the hearing spoke in support of the application. The license applicant has submitted three docutnents with his memorandum which were not introduced at the hearing, and the City asks that these be stricken from the record. -1- ��,$�L TESTIMONY AT THE HEARING At the hearing, the City presented testimony of Christine Rozek, the Deputy Director of the Office of License, Inspections and Environmental Protection, as well as testimony of Jerry Kerber and John Hastings of the Minnesota Department of Human Services. Ms. Rozek testified that she reviewed the application for the off-sale into�cating liquor license submitted by Vemon Crowe, d/b/a Selby Avenue Wine & Spirits for the premises to be located at 778 Selby Avenue, and that it was initially believed to be in compliance with all of the applicable laws and regulations related to liquor licenses. She testified that after nofice was sent that the application was in arder and that notification was being sent to community groups and neighborhood residents, the existence of the Dayton Residence was brought to the attention of LIEP. At that point, she contacted the Department of Human Services and leamed that the facility was licensed by the Department of Huxnan Services as a Rule 36' facil3ty for adults with mental illness. It was a residential facility with room for twenty-six individuals. Measurements done by the LIEP staff indicated that it was 340 feet between the Dayton Residence and the proposed location for Selby Wine & Spirits. Parties have stipulated that the measurement of the distance is not at issue. The City presented testimony of Jerry Kerber, the Director of Licensing for the Minnesota Department of Human Service. Mr. Kerber testified that the Dayton Residence is a residential program for mentally ill adults licensed by the Department of Human Services. The licensing is done under Minn. Stat. §245A.01-245.16 and Minnesota Rules 9520.0050-.0670. 'The reference to a"Rule 36" facility apparently is to an old numbering system which e�sted for the rules relating to residential facilities. Those Rules aze now found at Minn. Rules. 9520.0050-.0670. -2- a �,�� The Department has, pursuant to the licensing statute and rules, requirements for the personnel staffing such a residential treahnent facility (the staff qualifications and ratio), the type of treatment services, trainang requirements for staff, responsibility for perfonning background crimival checks on staff and responsibility for investigation of Vulnerable Adult abuse reports. The Department makes site visits at least every two yeazs to perform a full review of compliance with all of the applicable rules and regulations. It provides the forms for reporting to the Department. The Department has a range of available tools for insuring compliance with the rules and regulations, including issuing correction oxders, assessing fines, issuing a conditional license or suspending or revoking a license. John Hastings also testified. He is with the Department of Human Services, and is a consultant to the State Crroup Residential Housing Program. Mr. Hastings testified that in addition to the licensing, the Dayton Residence receives money through the Deparfinent of Human Services, in the form of state money channeled through the county and Consolidated Mental Health grants. Mr. Hastings testified tt�at the money received by Dayton Residence has restrictions which are tied to its compliance with all of the rules and regulations relating to the operation of a residential treatment facility for the mentally ill. He also testified that residents of the Dayton Residence aze not eligible to receive medical assistance because they are considered to be residing in an"institution for mental diseases" as that term is defined by 42 U.S.C. 1396d. (i). City's E�iibit #5 is an Instructional Bulletin issued November 23, 19988 by the State Department of Human Services which lists facilities which aze considered to be institutions. The Dayton Residence is included under the name "Dayton Boazding Care Home" at the same address. NIr. Hastings testimony was that the Dayton Residence is still considered to be an -3- a �,�� "institution for mental diseases" and that its residents aze therefore ineligible for medical assistance. The license applicant did not testify nor did he submit any e�ibits. "Interested persons" were permitted to speak, and two individuals testified. One man testified that he believed that there were other off=sale liquor stores which were located next to similar facilities and that Mr. Crowe should be treated the same as other applicants. He offered no factual testimony as to the existence of any specific liquor store in Saint Paul which had been issued a license in violation of Minn. Stat. §340A.412, subd. 4(a)(5). BURDEN OFPROOF It is the license applicant who bears the burden of showing that it is entitled to a license and meets a11 the requirements of law for the issuance of the license. In re City of White Bear Lake, 247 N.W.2d 901, 904 (Minn. 1976). In this instance, applicant must show that the Dayton Residence is not an "institution under the supervision or control, in whole ar in part, of the commissioner of human services." ARGi.JMENT Despite the license applicant's azgument in his brief that the City it "advocating and fighting against Mr. Crowe for uuknown reasons", the issue to be determined in this matter is quite simple and straightforwazd. The Office of License, Inspections and Environmental Protection did not become aware of the existence of the Dayton Residence and Minn. Stat. §340A.412, subd. 4(a)(5) until after it detenmined that Mr. Crowe's license application was in order. Once they discovered the existence of the Dayton Residence, and did the necessary measurements and investigation into the type of facility it was, the Office of LIEP believed that it � ��,$ � �e was constrained by the statute to recommend denial of the license. The statute at issue is Minn. Stat. §340A.412, subd. 4(a)(5), which reads as follows: Subd. 4. Licenses prohibited in certain areas. (a) No license to sell intoxicating liquor may be issued within the following azeas: �+* (5) within 1,000 feet of a state hospital, training school, reformatory, prison, or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commissioner of corrections. There are no cases involving interpretation of this secfion of the statute, nor is there any statutory defuution of "institution" contained in Chapter 340A. It is important to note, however, that the statute does not limit itself to only state hospitals, training schools, reformatories or prisons, nor does it indicate that the insfitutions have to be owned, operated by, or managed by the commissioner of human services or the commissioner of correcfions. Instead, the statute includes any 'bther insfitution under the supervision or control, in whole or in part", of said commissioners. Is the Davton Residence an"institution"? The license applicant seems to rely upon the fact that the Dayton Residence is a residentiai treatment facility as a basis to support the fact that it is not an"institution". Absent a statutory definition in either Chapter 340A or Chapter 245A or the Rules promulgated thereunder, the court can look to the intent of the legislature in enacting 340A.412(a)(5), as well as to the rules of statutory construcrion. "The objective of statutory interpretation is to ascertain and effectuate the intention of the legislature." Cummings v. Koehnen, 556 N.W.2d 586, 589 (Nlinn. App. 1996)(citations omitted). The apparent purpose of the secrion at issue was to -5- 1 .- a�'$�� establish a distance restricrion between places licensed to sell intoxicating liquor and facilities for people in the state hospital or correctional system. However, since the enactment of that particulaz section, the State has actively pursued a policy of moving individuals in the state hospitals into smaller, more residential settings. Thus a residential facility such as Dayton House, which is licensed and extensively regulated by the Commissioner of Human Services could reasonably be included in the types of facilities intended to be included within this distance restriction. Words used in statutes aze to be interpreted according to their plain and ordinary meaning. Minn. Stat. § 645.08(1); Cummings v. Koehnen at 589. The word "insfitution" as used in the statute is not modified by words such as"similaz" or "such", and therefore, the question is not whether the other institutions are sufficiently like state hospitals, tranung schools reformatories or prisons, but sunply whether they are an instiiution. Random House Dicrionary of the English Language, Second Edition Unabridged, 1987, defines institution as: institution: 1. An organization, establishment, foundation, society, or the like, devoted to the promotion of a particular cause or program, esp. one of a public, educarional, or chazitable character; 2. The building devoted to such work; 3. A public or private place for the care or confinement of inmates, esp. mental patients or other disabled or handicapped persons. The American Heritage College Dictionary, Third Edition, 1993, defines "institution" as: 3a. An established organization ar foundation ,as one dedicated to education or culture. b. The building or buildings housing an institution. c. A place for the care of persons who are destitute, disabled, or mentally ili. The Dayton Residence, a building used for the care of inentally ill adults, clearly falls within these accepted definitions of an "institurion." � � Although no Miunesota courts appeaz to have interpreted the term "institution" as it appears in §340A.412, or the various statutes relating to the Department of Human Services other jurisdictions have had occasion to interpret the term in relation to specific statutes. In the case of In re Debra B, 495 A.2d 781 (Me. 1985) the Maine court had before it a provision in a sterilization statute which provided that a"disinterested expert" was "an appropriately licensed or cerriped professional not associated with an institution serving the person for whom sterilization is sought." The court apparently accepted without discussion that an institution could include a residential facility and examined the issue of whether it could include an outpatient mental health facility which had provided services to the person. In First National Bank of Gems Falls v. Sheehan, 292 NYS2d 741 (1968), the court looked at a zoning provision which prohibited a gas station within 200 feet of a charitable institution. The station in question was within 200 feet of a building owned by a foundation and leased to the Historical Society. The court reasoned that the term institution meant a"use or facility of some continuing nature" and disposed of the case on the basis that the property was leased. The case of State of Connecticut Dept. of Income Maintenance v. Schweiker, 557 F. Supp. 1077 (U.S. Dis. Ct. 1983) contains an extensive discussion of what is an"institution for mental disease" for the purposes of federal statutes relating to medicaid eligibility, concluding that at a minimum it is a facility providing total care to mental patients. Although each case is necessarily fact specific to the statute being examined, the courts seem to accept the fact that an institution can be public or private and that the terxn refers to the building as well as the use. -7- �la'� 2. Is Dayton Residence under the suroervision and control, in whole or in Dart, of the coxnxnissioner of human services? The second issue for determination is whether the Dayton Residence is under the "supervision or control, in whole or in part, of the commissioner of human services." The statute does not require that the facility be managed by, staffed by, or under the jurisdiction of the commissioners of human services or corrections. Thus, it is a factual detennination whether this facility is supervised or controlled to any degree by the commissioner of human services. The uncontradicted testimony of the two employees of the Department of Human Services established that this facility is cleazly under the supervision and control of the Department in many aspects of its operation. The license applicant characterizes Dayton Residence's relationship with the Department of Human Services as simply one of licensure. However, the testimony established that the Department is responsible for background investigations on staff, investigation of compiaints regarding suspected abuse of vulnerable adults, site visits and full review of compliance with all of the rules and regulations regarding residential treatment facilities. Additionally, the Department has adopted nxles which set forth standards for staff qualifications and on-going training, program content, staff ratios, and types of treatment. Furthermore, Minn. Stat. §§245A.12 and 245.13 provide mechanisms for the Department to voluntarily or involuntarily assuxne operation of the residential programs through appointment of a receiver. There is a degree of regulation and control of the content and operation of residential programs which is faz beyond merely issuing a piece of paper to the facility. Even beyond the licensing aspect of Dayton Residence, however, there is the fact that it receives state funding and grant money which is conringent upon the compliance with all of the � c�q ��e rules and regulations of licensure and the terms and conditions of the grants. Because funding eligibility is ried to licensing criteria and standards, in addition to any other applicable federal or state laws or regulations it is hazd to imagine that this facility is not closely supervised to insure that it maintains compliance. Having the ability to cut off funding as well as to take action against the license tbrough issuance of fines, correction orders, condirional licenses, suspension or revocation of licenses or actual management of the facility through receivership indicates a degree of control by the Department which is more than adequate to meet the requirements of §340A.412, subd 4.(a)(5). The statute could have required that the restriction applied only to facilities owned, operated or staffed by the Deparirnent, but it does not do so, nor is there a requirement that the control or supervision which must be exercised be total. That being the case, the question is whether the Commissioner has some control or supervision over the operation of Dayton Residence. In State ex rel. Virginia & Rainy Lake Co. v. District Court of St. Louis County,150 N. W. 211 (Minn. 1914), the court examined the question of whether an individual was an employee of a company for the purpose of obtaaung Workmen's Compensation. The Court, in determining that the individual was an employee for the purposes of recovery under the Workmen's Compensation Act, stated: The evidence tends to show that the company did not surrender, but reserved, the right to supervise and control the work of Bashko, at least to the ea�tent necessary to prevent waste and loss. They required him to cut the timber clean as he went, and to manufacture it according to specifications fiuvished by them, and also to pile the brush. They inspected his work from time to time and occasionally directed him to remedy defects therein. They had the right to dischazge him at any tnne, and this right afforded adequate means for controlling his work. � � Id at 213. In this instance it is not necessary that there be the same level of supervision and control as an employer would have, but only that there be some degree of supervision and control by the commissioner. The testimony introduced at the hearing shows that the Department of Human Services does periodicaliy inspect the facility, directs the qualifications and training of staff, runs background checks to determine whether individuals are eligible to work at the facility, directs the prograixuning content, staff ratios, acceptable treatment and investigates reports o£ abuse. Furthermore, any violations of the rules and regulations under which the facility operates, or any violation of the conditions of the facility's funding, would enable the Department to fine, issue corrective orders, suspend or terminate the license, cut off funding or petition the court for direct control of the facility tlu�ough appointment of it as a receiver. CONCLUSION For all of the foregoing reasons, the Office of License, Inspections and Environmental Protection believes that the reasonabie interpretation of Minn. Stat. 340A.412, subd. 4(a)(5) is that the Dayton Residence does fall within the restriction contained therein. The facility in question is a residential treatment center for adults who are mentally ill. It is licensed and funded by the Department of Human Services, which has significant control over its operation in the form of rules and regulafions relaring to programming, staff ng, training, treatment of residents, and payment for their services and housing. The federai government lists it as an"institution for mental disease" for the purposes of federal medicaid eligibility guidelines. The license applicant 6� qq�� has failed to sustain his burden of proof that he is not prohibited by the statute from locating his business at 778 Selby because it is within 1,000 feet of an institution under the supervision or control, in whole or in part, of the commissioner of human services. Respectfixlly submitted, 7/ Virgi � D. Palmer Attorney License # 128995 Assistant City Attorney 400 City Ha11/County Courthouse 15 W. Kellogg Boulevazd Saint Paul, MN 55102 (651)266-8710 -11- LAW OFFICES KENNETH M. BOTTEMA c�q �t� 300'I HENNEPIN AVENUE SOUTH �._ � •. i �• ,{; SUITE 309 B C,' �_.. _.. ... �- `" MINNEAPOLIS, MINNESOTA 5540H TELEPHONE [6'127 825-233'I FACSIMILE C6'12] 925-0�61 The Honorabfe �eorge A. Beck Office of Administrative iNearings 100 Washington Square, Suite 1700 Minneapolis, MN 55401 June 22, 1999 "' �- - OF COUNSEL: ii_n.ii.�-.;J LARRYRAPOPORT RE: The License Application of Vernon W. Crowe, d/b/a Selby Wine and Spirits, 778 Selby Avenue, St. Paul, Minnesota, City File No. G99-0154 Dear Judge Beck: Enclosed for filing please find the ApplicanYs Memorandum with respect to the above matter. Thank you for your consideration in this matter. K :mr enc sure Yours ery tru{y en Sottema p �' APPLICANT'S MEMORANDUM June 22, 1999 George A. Beck Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN 55401 - . „ .- ,�: �-°�_'�? ,:,� S �:b, f.:,. - � �_.:_� _ RE: The License Application of Vernon W. Crowe, d/b/a Selby Wine and Spirits, 778 Selby Avenue, St. Paul, Minnesota, City File No. G99-0154 iNTRODUCTION The Applicant, Vernon W. Crowe, has made application for an off-sale liquor license to the city of St. Paul, Minnesota. Mr. Crowe's application was accompanied by the statutorily required materials. On February 11, 1999, Mr. Crowe received a letter from Lawrence R. Zangs informing him that the city had granted zoning approval subject to building improvements and approval of any off-street parking development. ApplicanYs exhibit 1. Mr. Crowe also received a February 5 1999 letter informing him that notice would be sent to the community organization and residents of the neighborhood. ApplicanYs exhibit 2. Mr. Crowe received a letter dated March 5`", 1999, informing him that his applicat+on could no longer be processed because the locat+on of his proposed store was within 1000 feet of the Dayton Residence. ApplicanYs exhibit 3. The letter implied that the city was taking the position that Minn. Stat. g 340A.412, subd. 4(5) was being interpreted to apply to Dayton Residency. �� • �� By letter dated April 8 1999, the city by and through Virginia Palmer, Assistant St. Paul City Attomey, informed Mr. Crowe, that the Director of the Office of License, Inspections and Environmental Protection had recommended denial of his Liquor license application for the premises located at 778 Selby Avenue. This was again based on the position that Minn. Stat. § 340A.412, subd 4(5) applied to the Dayton Residence. Mr. Crowe requested a hearing before an administrative lawjudge. A hearing was scheduled before George A. Beck, Office of Administrative Hearings for June 3 1999 at 9:30 a.m. in the St. Paul City Hall. At the hearing, the city was represented by Virginia Palmer, and Mr. Crowe was represented by undersigned counsel. The issue presented was narrowed to, as a matter of law, was Minn. Stat. § 340A.412, subd. 4(5) applicable. The city called witnesses and introduced exhibits. Several of Mr. Crowe's supporters were present. While Mr. Crowe did not call any witnesses, several of the spectators did ask to give testimony. That testimony revealed the overwhelming support Mr. Crowe has in the community. It should also be noted that Mr. Crowe was approved for a liquor license by the city for a location c%serto the Dayton Residence than his current location. However, that location became unavailable, and Mr. Crowe reapplied for a liquor license at the current Selby Avenue address. The City of St. Paul has not taken a neutral position on this issue. The city, represented by the City Attorney's Office, is advocating and fighting against Mr. Crowe for unknown reasons. Mr. Crowe has complied with all other aq��`� requirements of the application process. But for the city's recent position, Mr. Crowe would, in all likelihood, be in business today. Instead, his dream has been delayed once again. The matter was submitted to the judge with the understanding that Mr. Crowe would submit memorandum of law in support of his position that the city's position is unfounded and his application must be approved. ARGUMENT MINNESOTA STATUTE SECTION 340A.412, SUBD. 4(5) DOES NOT APPLY IN THE INSTANT CASE. The city relies on Minn. Stat. § 340A.412, subd. 4(5) in denying Mr. Crowe's application for a liquor license at 778 Selby Avenue, St. Paul, MN. The statute provides as follows: Subd. 4. No license to sell intoxicating liquor may be issued within the following areas: � � � (5) within 1,000 feet of a state hospital, training school, reformatory, prison, or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commissioner of corrections The city has taken the position that the Dayton Residence is an "institution" as provided for in §340A.412, subd. 4(5). Further, because the Dayton Residence �q,�� is licensed by the commissioner of human services, it is under the "supervision or control" of the commissioner. It is the Applicant's position that this statutory provision does not apply. A. The Dayton Residence is a Licensed Residential Program as Defined by Minn. Stat. § 245A.02, subd. 14, Not an Institution. 7he Dayton ftesidence is a licensed residential program that provides 24- hour-a-day care for individuals who are mentally retarded. See Minn. Stat. § 245A.02, subd. 14. The city provides no authority under state law that defines a "Residential Program" as an "institution" such that the Dayton Residence would be considered in any way an institution. At the hearing the city introduced into evidence an eleven-year-old document titled "Instructional Bulletin #88-16H". According to the document, under federal law, any nursing care facility of "more than 16 beds that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases" is an institution. City of St. Paul's Exhibit No. 5, at page 2. The document itself refers to the program located at 740 Dayton Avenue as the "Dayton Boarding Care Home" not "The Dayton Residence" as it is now known. Because of the dated nature of the city's exhibit #5, it is unclear whether the current program located at 740 Dayton Avenue is still eligible 4or Medical Assista�ce, or whether the program has changed in the past 10 years such that it would not now appear on an updated listing of federal institutions. �� Minnesota Statutes defines a care faciliry providing care to people whose primary diagnosis is mental retardation as a residential program. See Minn. Stat. § 245A.02, subd. 14. Therefore, under Minnesota law, that which the federal govemment calis an "institution", this state has defined as a"residential program. Moreover, in a letter dated Aprif 9, 1999 written by Jerry Kerber, Director of the Division of Licensing for the Department of Human Services states the Dayton Residence is a licensed "mental health treatment program." ApplicanYs exhibit 4. Nowhere on Mr. Kerber's letter does he refer to the Dayton Residence as an "institution." The powers and duties of the commissioner of human services are detailed in Minn. Stat. § 246.01. Therein the legislature has vested with the commissioner the exclusive power to administrate and manage the following state institutions; state hospital for persons with mental retardation, state hospitals for mental iliness, or state hospitals for chemical dependency. No other institutions are listed. It foflows that these are the institutions intended by § 340A.412, subd, 4(5). There is absolutely no authority for the city's position that the Dayton Residence is an institution as to fall under the provisions of Minn. Stat. § 340A.412. On the contrary, the type of services that is provided at Dayton Residence is that of a residential program. A residential program is defined by Minnesota Statute. The legislature, when drafting §340A.412, subd 4(5) could have provided that it applies to residential programs. The legislature did not. Statutes should be strictly construed. Minnesota Statute § 340A.412, subd. 4(5) a�'�� simply does not apply in the instant case because the Dayton Residence is not an "institution" but rather a"residential program" B. The Department of Human Services Does Not Supervise or Control the Dayton Residence Residential Program. The Dayton Residence is licensed. It is required to be licensed as a residential program pursuantto Minn. Stat. § 245A.03, subd. 1(1). Licensure is different from supervision or control. A license is simply a"certificate issued by the commissioner authorizing the license holder to provide a specified program for a specified period of time and in accordance with the terms of the license and the rules of the commissioner." Minn. Stat. § 245A.02, subd. 8. The only definition provided in the statutes for supervision concerns the individuals who supervise children in child care facilities. There is no statutory definition for control in this context. The American Heritage Dictionary, 1999, defines supervise as: To have the charge and direction of; superintend." Synonyms: supervise, boss, ove�look, oversee, superintend. The central meaning shared by these verbs is "to have the direction and oversight of the performance of others": supervised a team of investigators; bossed a construction crew; overlooking farm hands; overseeing plumbers and electricians; superintend a household staff. The American Heritage Dictionary, 1999, defines control as: 1. To exercise authoritative or dominating influence over; direct. See synonyms at conduct 2. To hold in restraint; check: struggled to control my temper, regulations intended to control prices. �iq�$�� 3. a. To verify or regulate (a scientific experiment) by conducting a parallel experiment or by comparing with another standard. b. To verify (an account, for example) by using a duplicate register for comparison. noun 1. Authority or ability to manage or direct: lost control of the skidding car, fhe /eaders in contro! of the country. 2. Abbr. cont., contr.. a. One that controls; a controlling agent, device, or organization. b. Often controls . An instrument or set of instruments used to operate, regulate, or guide a machine or vehicle. 3. A restraining device, measure, or limit; a curb: a control on prices price controis. 4. a. A standard of comparison for checking or verifying the results of an experiment. b. An individual or group used as a standard of comparison in a control experiment. 5. An intelligence agent who supervises or instructs another agent. 6. A spirit presumed to speak or act through a medium. Licensure is not synonymous with control and supervision. Referring to Applicant's exhibit 4, again Mr. Kerber provides the Department of Human Services' position on the issue. He states that the Department is "responsible for monitoring the program." Emphasis added. Not supervising, not controlling. As stated above this is a matter of statutory interpretation. The legislature could have provided that Minn. Stat. § 340A.412 apply to licensed facilities, or more specifically, to licensed residential treatment programs. The legislature did not. Therefore, Minn. Stat. §340A.412, subd. 4(5) does not apply in the instant case. CONCLUSION It is the ApplicanYs position that Minn. Stat. § 340A.412 subd. 4(5) does not apply to the instant application for an off-sale liquor license because the �`��$�� Dayton Residence is not an "institution" but rather a"residential program". Furthermore, it is licensed by the commissioner of human services; it is not supervised or controlled. The city is attempting to stretch an obviously non- applicable statute to fit over the application of Mr. Crowe. The motivation for this position taken by the city is unclear. There is strong community support for Mr. Crowe's application. The neighborhood is behind his efforts. The area business community supports him. Moreover, the city had approved his applicat+on, then denied it based in this statute. Matters of statutory construction are submitted to courts and judges every day. There are volumes dedicated to the principles and philosophies of determining legislative intent. It is Mr. Crowe's position that the legislature has clearly provided this court with its intent. Minn. Stat. § 340A.412, subd. 4(5) is clearly drafted. It simply does not apply in this case contrary to the city's position. Therefore it is respectFully requested that you recommend to the city counsel that Mr. Crowe's application for a liquor license be approved. Respectfully submitted, ` M ---�_ Ge�2a��1 � � : _ � ` Kenneth Bottema Attorney for Vernon Crowe 3001 Hennepin Avenue South Suite 309B Minneapolis, MN 55408 612-825-2331 CITY OF SAINT PAUL -- -. y t�a.�cat��io� ,., „��, i3 ..`i �: t il�. .�1. � � � Febr[�3+ 11, 1999 Verr�n Crowe 65� Dayton rlve Sait►t P�il !sRl�4 551 p4 OFEfCE OF T.[CENSk, TNSRECTIONS AND X �� F�IVUtONA�NP.AL PRO2ECTION .RobrnKev/e� O"vec�or �/ �i V i IAWRYPROk�STtOM�LBUILDQYG Tekphone:657-Y66A090 Stiu 3t10 FacaNrlk: 651d6b•9D9D 350 SC Peur SReet 65I-16G9I24 SaknPanL d8nxmta 53102dSI0 R£: 778 Selby Ave - LiCense !fl#19980007002 for OifSale Liquor 6usinass. Mv. Grawe: 4Ye ara granting zastiing approval tn #he rsferenced license subject to the follow'srsg Cbnditians: • lmprovemersts to the truiiding shall comply with ail applicabie buitding and heafth ccxfes. Watic must be comxslated undes pesmits issued by thfs office. -/3ny of�street parking deveiapmeM must be approved by this office far compfiance with cityr sWndards and be constructed under a permit (see 62_t03[a1 on reverse side). tf you have any questian, cali me at 659/286-9083. s � � Lawc�nce R. 7angs Zoning Administration APPLICANT'S EXHIBIT 1 OFFICE OF LICENSE, INSPECfIOYS AND �q �� 1�4� ENYtRONMEKFAL PROTECf [OPt , - Rabert 6ar4r, Dfrma� C1TY OF SAINT PAUL J ^ ..' c,- l�. �� 0.^. „':��; �. C� �' LOWRYPROFESSIONAL BUILDING TslRphone: 6S! 2ff690➢0 Nors ColNno�, Nsyer '� -- - 330 Su PunSWK Srdts 300 FauLnitc 6�7,2669099 t - � , ;. ; ,' :' � �- - Saut Pattl. Mbenaam i5(02•lSIO 6S1 ZbG9lId _,�. _ ;: Februazy 5, I999 Vraion W. Cro�ve/Owner Setby Wine & 5pizits 798 Sclby Ave. St. Paul, l►+�T 55104 REt Lice3ase application for Selby Wine & Spirits, Eao. DBA Selby Wine & Spirits (ID #i998U047Q42) Liquar Off Sate T.icense . De�ar Appiicant, A zeview of ths iavesflgations which has been made in connection with your license appiication have been compieted. Pzoper notification has been sent ta the community orgauizatiaa as►d residents of the neighborhood in wiuch 3rou antend to operate giving tham until March 19,1999 ta voice any objections to your license apglicarion. Tf no abjectzous are received, your Iicense will be issued approximately one week past the date giveu above. Ifobjections are recezved, a hearing will be scheduled before a legisiative hearing offcer. You wilt receivo notice of the rime, piace and date of the scheduled hearing from Gerry Strathman, the LegisIative Hearing Officer. At that heari�ag, thc hearing offiser will take testimony &om aI1 interested persons and �vill make a recommendation to tha City Council as to whether tbe license(s) should be aggroved or he referred to an administrative Iaw judge for #'urthtr review. '�'he City Council wi11 have the fuial authority to giant or dsny this license application. If you ha.ve aay questions, piease contact Cbristine Rozek, 266-9108. very tru�y ro,ics,• �' R�.. Christine A ltozek DsQuty Director /r•t APPLI€APTT'S EXHIBIT 2 liluV}E � .__. CII'Y OF SAIIVT PAUL Nerer G[esa�. Mmer ��'J,:.� G� ':;`1 �': L;� �s, z� vemon crnwc 650 Dayton Avemu Saiad Pant MN 55104 Re: Sclby Wines and Spinxts, Tnc. 7')8 Seibv Av�°.�nue Dpr Mr. Crowe: OFFICE OF L[{- ;E,INSPEC7tONS AND ��/�� EDNiRONMENr.,t_ PRO'fECndN Robex Kusle. Dlrum� �, � f" a E (�i —�I � 1 a IAWRY PROFESS/ON.4L BUILD.A'G 330 $ PetrrShest S�n 300 SmntPmrl. A!lnnuora SST02 2rlephonc 651-2669100 FacsY�ntta: 65L266�91 J4 We c�nnot process your application, dated qctober 7, t 998, foz an Off-Sale Liquor License at the rcferenced propercy. Acoording to Secrion 344A.412 Subd. 4(S� o£ the State of Minnesota I,cgisIative Code (copy cncioscd), "No license to sell into�cicatyng liquor may be issued within i fect of a state hospital, training schooi, refomatory, prison, or othtr institution uader t�o supervision ar contol, in whole or in part, of the coaunissionsr of human services. .". We have de�tsniaed that Daytoa Residence and Re-entry Services are within 1,000 feet of the subject properry. There is n9 pzavisian foz� a waiver of this separatzaa reqnirement in tlke Legislative Codc. 3iacc #ris location does not mcet the license resiriction fa sn off-sale liquor license, please submit a written withdtawal of your application and we will either return your $ 2,000.04 applieat�on #ee or apQiy it to anotkter application at a different location. If yau have any queseioa regarding this matter, please contact rne. If you find att altexnative locatiaa we can check it out to determine if the miaunum segaratirm requiremeats are met. :. i ,/ �1,I' / i/ •..� i�� _ . . • ., ;.e� _ .�„ �. . APPLICANT EXHIBIT 3 f ` � �E�}� /� i ' Minnesoca D aztmenL of Human 5ervices � ��...,.i23 ..;� = `:`, ��. ...,.. � : Apnl 9, t339 To whom it rrray+ ooncem: The Departmern of 1'luman Services has licensed the residential mental heaith treatme�rt prugram {onown as Daytnn Residence since .lune 1, 1983. The license !i � issued to Bostr�n Heatth Care S��stems, Inc. forth�s far.itity located at 7�10 Da;�t�n Avenue, SL Paul, MN 55104. 7he facility is currently licensed to serva 26 adult residenfs_ The Department of Human Services is responsible for monitoring the program fo comptiance with standards found in Minnesota Statutes, chapter 245A; Minnesot � Statutes, section 626.5bT; and Minnesot� Rules parts 9520.0510 to 9520.0670. �.ie licensing duties ofthe Department indude ro�stine licn:�rs�ng inspections, investig< ting complaints r�garding the program serviCes, and conducting nackground sto�dies �•� all staff who pmvide direct contact services to the people receiving senrices from th� program. The Qepartment af Human Setvices aiso provides funding for a significant portioi 'c�f the services provided. Board and lodging services are reimbursed through the Grau� . Resideniiat Housing Program, and the mental health treatment services are fund� rc through Ru1e 12 Menta! Health Grant Program. If yau have arry questions 8bout the licensing requirements, please call me at (6° �; 296-4473 Ssncerely. r�- � "-� Jesry K er, Dit�ectQr Division of Licsnsing APPLICANT'S EXHIBIT 4 44•f Zwfreyetta Rnad Nonb • Sa:n� Paxl. Minn�rom • SSI SS • An L•yual Opporn<niry Emyluyer OFFICE OF THE CITY ATTORNEY(�O��U� " C[ayton M Robinson. Jr., Ciry Attorney � Y � r"= I',' ^ —..�. : C'J CITY OF SAINT PAUL �� ;!_-! ^ �� ;rD;�;s�o., ...� .,v.: LC� ;.ii iu• Norm Coleman. Mayor (l0 Ciry Hal! Telephone: 657 266-87I0 "" '°P` �I�WestKeiloggB(vd Facsimiie:6S1298-i674 � � � � � � � � � � � � �'� � ' �'- Sain! Paul, Minnesota 55703 „�.-.'.I, : o � June 25, 1999 The Honorable George A. Beck Administrative Law Judge Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN. 55401 RE: In the Matter of the License Application of Vernon W. Crowe, dba Selby Wine and Spirits Dear Judge Beck: This letter will acknowledge receipt of the license applicanYs memorandum, and serve as a request for an extension of time to submit the City's reply memorandum. The initial briefing schedule called for the applicant to submit a memo by June 17,1999, with the City's reply due June 24,1999. Mr. Bottema did request and obtain a continuance until June 21 or 22"d, and T would therefore request that the City's reply deadline be extended to June 29, 1999. I spoke to Mr. Bottema and informed him that I would make this request and he had no objection. Thank you for your consideration in this matter. Sincerely, �/ ,�� Virgini Assistant City Attorney cc: Kenneth Bottema § 310.04 LEGISLATIVE CODE �� appeal shall be that there has been an error of law in the grant, issuance or renewal of the license. The appeal shall be in writing and shall set forth in particulaz the alleged errors of law. The council shall conduct a hearing on the appeal within thirty (30) days of the date of filing and shall notify the licensee and the appellant at least ten (10) days prior to the hearing date. The proce- dures set forth in section 310.05, insofaz as is practicable, shall apply to this hearing. Follawing the hearing, the council may affinu or remand the matter to the inspector or director, or may reverse or pIace conditions upon the license based on the council's determination that the decision was based on an error of law. The filing of an appeal shall not stay the issuance of the license. (fl Nc waiuer by renew¢l. The renewal of any license, whether Class I, II or III, shall not be deemed to be a waiver of any past violations or of any grounds for imposition of adverse action against such license. (Code 1956, § 510.04; Ord. No. 17455, § 1, 5-21-87; Ord. No. 17551, § 1, 4-19-88; C.F. No. 94-500, § 1, 7-6-94; C.F. No. 95-473, § 3, 5-31-95; C.F. No. 95-1517, 1-31-96; C.F. No. 97-1446, § 1, 12-30-97) Sec. 310.05. Hearing procedures. (a) Adverse ¢ction; notice ¢nd hearing require- ments. In any case where the council may or intends to consider any adverse action,including the revocation or suspension Qf a license, the imposition of conditions upon a license, or the denial of an application for the grant, issuance or renewal of a license, or the disapproval of a license issued by the State of Minnesota, the epplicant or licensee shall be given notice and an opportunity to be heazd as provided herein. The council may consider such adverse actions when recommended by the inspector, by the director, by the director of any executive department estab- lished pursuant to Chapter 9 of the Charter, by the city attorney or on its own initiative. (b) Notice. In each such case where adverse ar_tion is or will be considered by the council, the applicant or licensee shall have been notified in writing that adverse action may be taken against the license or application, and that he or she is entitled to a hearing before action is taken by the council. The notice shall be served or mailed a reasonable time before the hearing date, and shall state the place, date and time of the hearing. The notice shall state the issues involved or grounds upon which the adcerse action may be sought or based. The council may request that such written notice be prepared and served or mailed by the inspector or by the city attorney. (c) Hearing. Where there is no dispute as to the facts underlying the violation or as to the facts establishing mitigating or aggravating circum- stances, the hearing shall be held before the council. Otherwise the hearing shall be conducted before a hearing examiner appointed by the coun- cii or retained by contract with the city for that purpose. The applicant or the licensee shall be provided an opportunity to present evider_ce and azgument as well as meet adverse testimony or evidence by reasonable cross-examination and rebuttal evidence. The hearing examiner may in its discretion permit otherinterested persons the opportunity to present testimony or evidence or otherwise participate in such hearing. (c-1) Procedure; hz¢ring examiner. The hear- ing egaminer shall hear all evidence as may be presented on behalf of the city and the applicant or licensee, and shall present to the council writ- ten findings of fact and conclusions of law, to- gether with a recommendation for adverse action. The councii shall consider the evidence con- tained in the record, the hearing examiner's rec- ommended findings of fact and conclusions, and shall not consider any factual testimony not pre- viously submitted to and considered by the hear- ing examiner. After receipt of the hearing examiner's findings, conclusions, and recommen- dations, the council shall provide the applicant or licensee an opportunity to present oral or written arguments alleging error on the part of the exam- iner in the application of the law or interpretation of the facts, and to present azgument related to the recommended adverse action. Upon conclu- sion of that hearing, and after considering the record, the examiner's findings and recommenda- tions, together with such additional azguments presented at the hearing, the council shall deter- mine what, if any, adverse action shall be taken, which action shall be by resolution. The council Supp. No. 40 2028.4 �� LICENSES may accept, reject or modify the findicgs, conclu- sions and recommendations of the hearing esam- iner. (c-2) Ex p¢rte cont¢cts. If a license maiter has been scheduled for an adverse hearing, council members shall not discuss the license matter witn each other or with any of the parties or interested persons involved in the mat`�.er unless such dis- cussion occurs on the record during the hearings o£ the matter or during the council's final deliber- ations of the matter. No interested person shall, with knowiedge that a license matter has been scheduled for adverse hearing, convey or attempt to convey, orally or in writing, any information, argument or opinion about the matter, or any issue in the matter, to a council member or his or her staff untii the council has taken final action on the matter; provided, however, that nothing herein shall prevent an inquiry or communica- tions regazding status, scheduling or procedures concerning a license matter. An interested person, for the purpose of this paragraph, shall mean and include a person who is an officer or employee of the licensee which is the subject of the scheduled adverse hearing, or a person who has a financial interestin such licensee. (d) Licensee or ¢pplicant may be represented. The licensee or applicant may represent himself or choose to be represented by another. § 310.05 Supp. No. 40 2028.5 /� � � LICENSES (e) Record,• eoidence. The hearing examiner shall receive and keep a record of such proceedings, including testimony and exhibits, and shall re- ceive and give weight to evidence, including hear- say evidence, which possesses probative value com- monly accepted by reasonable and prudent persons in the conduct of their affairs. (fl Courzcil action, resolution to cont¢in find- ings. Where the council takes adverse action with respect to a license, licensee or applicant for a license, the resolution by which such action is tak- en shall contain its findings and determination, including the imposition of conditions, if any. The council may adopt all or part of the findings, con- clusions and recommendations of the hearing ex- aminer, and incorporate the same in its resolution taking the adverse action. (g) Addition¢l procedures where required. Where the provisions of any statute or ordinance require additional notice or hearing procedures, such pro- visions shall be complied with and shall super- sede inconsistent provisions of these chapters. This shall include, without limitation by reason of this specific reference, Miunesota Statutes, Chapter 364 and Minnesota Statutes, Section 340A.415. (h) Discretion to he¢r notwithst¢ndirzg with- dr¢w¢l or surrender of ¢pplication or license. The council may, at its discretion, conduct a hearing or direct that a hearing be held regarding revocation or denial of a license, notwithstanding that the applicant or licensee has attempted or purported to withdraw or surrender said license or applica- tion, if the attempted withdrawal or surrender took place after the applicant or licensee had been notified of the hearing and potential adverse ac- tion. (i) Continuances. Where a hearing for the pur- pose of considering revocation or suspension of a license or other disciplinary action involving a li- cense has heen scheduled before the council, a continuation of the hearing may be granted by the council president or by the council at the request of the licensee, license applicant, an interested person or an attorney representing the foregoing, upon a showina of good cause by the party making the request. § 310.05 (j) If the council imposes an adverse action as defined in section 310.01 above, a generic notice of such action shall be prepazed by the license in- spector and posted by the licensee so as to be vis- ible to the public during the effective period of the adverse action. The licensee shall be responsible for taldng reasonable steps to make sure the no- tice remains posted on the front door of the li- censed premises, and failure to take such reason- able precautions may be grounds for further adverse action. (k) Imposition of costs. The council may impose upon any licensee or license applicant some or all of the costs of a contested hearing before an inde- pendent hearing examiner. The costs of a contest- ed hearing include, but are not limited to, the cost of the admanistrative law judge or independent hearing examiner, stenographic and recording costs, copying costs, city staff and attomey time for which adequate records have been kept, rental of rooms and equipment necessary for the hear- ing, and the cost of expert witnesses. The council may impose all or part of such costs in any given case if (i) the position, claim or defense of the licensee or applicant was frivolous, azbitrary or capricious, made in bad faith, or made for the pur- pose of delay or hazassment; (u) the nature of the violation was serious, or involved violence or the threat of violence by the licensee or employees thereof, or involved the sale of drugs by the lic- ensee or employees thereo£, and/or the circum- stances under which the violation occurred were aggravated and serious; (iii) the violation created a serious danger to the public health, safety or welfare; (iv) the violation involved unreasonable risk of harm to vulnerable persons, or to persons for whose safety the licensee or applicant is or was responsible; (v) the applicant or licensee was sufficiently in control of the situation and there- fore could have reasonably avoided the violation, such as but not limited to, the nonpayment of a required fee or the failure to renew required in- surance policies; (vi) the violation is covered by the matrix in secfion 40926 0: the Legislative Code; or (vii) t}ie violation involved the sale of cigarettes to a minor. (1) Imposition of fines. The council may impose a fine upon any licensee or license applicant as an adverse license action. r: fine may be in such Supp. No. 30 2029 § aio.os amount as the council deems reasonable and ap- propriate, having in mind the regulatory and en- forcement purposes embodied in the particulaz li- censing ordinance. A fine may be in addition to or in lieu of other adverse action in the sole discre- tion of the council. To the extent any other provi- sion of the Legislative Code provides for the im- position of a fine, both provisions shall be read together to the estent possible; provided, howev- er, that in the case of any conflict or inconsistency, the other provision shall be controlling. (Code 1956, § 510.05; Ord. No. 17551, § 2, 4-19-88; Ord. No. 17559, §§ 1, 2, 5-17-88; Ord. No. 17659, § 1, 6-13-89; Ord. No. 17911, § 1, 3-10-92; C.F. No. 94-46, § 7, 2-2-94; C.F. No. 94-898, §§ 2, 3, 7-13-94; C.F. No. 94-1340, § 2, 10-19-94; C.F. No. 95-473, § 4, 5-31-95) Sec. 310.06. Revocation;suspension;adverse actions; imposition of condi- tions. (a) Council may take ¢duerse ¢ction. The coun- cil is authorized to take adverse action, as defined in section 310.01 above, against any or all licenses or permits, licensee or applicant for a license, as provided in and by these chapters. Adverse ac- tions against entertainment licenses issued under Chapter 411 of the Legislative Code may be initi- ated for the reasons set forth in subsection (b) below, or upon any lawful grounds which are com- municated to the license holder in writing prior to the hearing before the council. Such actions shall be initiated and carried out in accordance with the procedures outline in section 310.05; provid- ed, however, that the forntal notice of hearing shall be used to initiate the adverse action without the use of prior procedural steps. (b) B¢sis for action. Such adverse action may be based on one (1) or more of the following rea- sons, which are in addition to any other reason specifically provided by law or in these chapters: (1) The license or permit was procured by mis- representation of material facts, fraud, de- ceit or bad faith. (2) The applicant or one (1) acting in his or her behalf made oral or written misstatements or misrepresentations of material facts in or accompanying the application. LEGISLATIVE CODE qq-$i�e (3) The license was issued in violation of any oF the provisions of the Zoning Code, or the premises which aze licensed or which aze to be licensed do not comply with applicable health, housing, fire, zoning and building codes and regulations. (4) The license or permit was issued in viola- tion of law, without authority, or under a material mistake of fact. (5) The licensee or applicant has failed to com- ply with any condition set forth in the li- cense, or set forth in the resolution grant- ing or renewing the license. (6) a. The licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has violated, or performed'any act which is a violation of, any of the provisions of these chapters or of any statute, ordi- nance or regulation reasonably related to the licensed activity, regazdless of whether criminal chazges have or have not been brought in cannection there- with; b. The licensee or applicant has been con- victed of a crime that may disqualify said applicant from holding the license in question under the standards and procedures in Nlinnesota Statutes Chapter 364; or c. The licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has engaged in or permitted a pattern or practice of conduct of failure to comply with laws reasonably related to the li- censed activity or from which an infer- ence of lack of fitness or good character may be drawn. (7) The activities of the licensee in the licensed activity created or have created a serious danger to the public health, safety or wel- fare, or the licensee performs or has per- formed his or her work or activity in an unsafe manner. (8) The licensed business, or the �cay in which such business is operated, maintains or per- Supp. No. 30 2030 LICENSES mits conditions that unreasonably annoy, injure or endanger the safety, health, mor- als, comfort or repose of any considerable number of inembers of the public. (9) Failure to keep sidewalks or pedestrian ways reasonably free of snow and ice as required under Chapter 114 of the Saint Paul Leg- islative Code. (10) (11) The licensee or applicant has shown by past misconduct or unfair acts or dealings: phys- ical abuse, assaults or violent actions done to others, including, but not limited to, ac- tions meeting the definition of criminal sex- ual conduct pursuant to Minnesota Stat- utes Sections 609.342 through 609.3451; se�tual abuse, physical abuse or maltreat- ment of a child as defined in Minnesota Stat- utes Section 626.556, subdivisions 2 and 10e, including, but not limited to, acts which con- stitute a violation of Minnesota Statutes Sec- tions 609.02, subdivision 10; 609.321 through 609.3451; or 617246; neglect or en- dangerment of a child as defined in Minne- sota Statutes Section 626.557, subdivision 2; the manufacture, distribution, sale, gift, delivery, transportation, exchange or baz- ter of a controlled substance as defined in Minnesota Statutes Chapter 152; the pos- session of a controlled substance as defined in Minnesota Statutes Chapter 152 in such quantities or under circumstances giving rise to a reasonable inference that the pos- session was for the purpose of sale or dis- tribution to others; or by the abuse of alco- hol or other drugs, that such licensee or applicant is not a person of the good moral character or fitness required to engage in a licensed activity, business or profession. The licensee or applicant has materially changed or permitted a material change in the design, construction or configuration of the licensed premises without the prior ap- proval of the city council in the ease of Class III licenses, the director in the case of Class II licenses, and the inspector in the case of Class I licenses, or without first having ob- tained the proper building permits from the city. qa�� § 310.06 (12) The licensee or applicant has violated sec- tion 294.01 of the Legislative Code, or has made or attempted to make a prohibited eg parte contact with a council member as pro- vided in section 310.05(c-2) of the Legisla- tive Code. The terms "licensee" or "applicant" for the pur- pose of this section shall mean and include any person who has any interest, whether as a holder of more than five (5) percent of the stock of a cor- poration, as a partner, or otherwise, in the prem- ises or in the business or activity which are li- censed or proposed to be licensed. With respect to any license for activities entitled to the protectian of the First Amendment, notwith- standing the foregoing provisions, neither the lack of good moral character or fitness of the licensee or applicant nor the content of the protected speech or matter shall be the basis for adverse action against the license or application. (c) Imposition of re¢sorz¢ble conditiorzs ¢nd/or restrictions. When a reasonable basis is found to impose reasonable conditions and/or restrictions upon a license issued or held under these chap- ters, any one (1) or more such reasonable condi- tions and/or restrictions may be imposed upon such license for the purpose of promoting public health, safety and welfare, of advancing the public peace and the elimination of conditions or actions that constitute a nuisance or a detriment to the, peace- ful enjoyment of urban life, or promoting security and safety in nearby neighborhoods. Such reason- able conditions and/or restrictions may include or pertain to, but aze not limited to: Q) A limitation on the hours of operation of the licensed business or establishment, or on particular types of activities conducted in or on said business or establishment; (2) A limitation or restriction as to the location within the licensed business or establish- ment whose [sic) particular type of activi- ties may be conducted; (3) A limitation as to the means of ingress or egress from the licer.sed establishment or its pazkinn lot or immediately adjacent area; (4) Arequirement to pro��ide off-street parking in excess of other requirements o£ law; Supp. No. 30 20$1 § 310.06 LEGISLATIVE CODE � � � y� � � U `� (5) A limitation on the manner and means of advertising the operation or merchandise of the licensed establishment; (6) Any other reasonable condition or restric- tion limiting the operation of the licensed business or establishment to ensure that the business or establishment will harmo- nize with the chazacter of the azea in which it is located, or to prevent the development or continuation oF a nuisance. The inspector may impose such conditions on Class I licenses with the consent of the license holder, or may recommend the unposition of such conditions as an adverse action against the license or licens- es; the inspector has the same power with respect to Class II licenses. The council may impose such conditions on Class III licenses with the consent of the license holder, or upon any class of license as an adverse action against the license or licens- es following notice and hearing as may be re- quired. Such conditions may be imposed on a li- cense or licenses upon issuance or renewal thereof, or upon and as part of any adverse action against a license or licenses, including suspension. Con- ditions imposed on a license or licenses shall re- main on such licenses when renewed and shall continue thereafter until removed by the council in the case of conditions on Class III licenses or conditions imposed by adverse action, and by the inspector in the case of Class I and II licenses. (d) Standards for multiple license determin¢- tion. In any case in which the council is autho- rized to take adverse action against less than all of the licenses held by a licensee, or applied for by an applicant, the following standards may be used: (1) The nature and gravity of the grounds found by the council to exist upon which the ad- verse action would be based; (2) The policy and/or regulatory goals for the particular licenses involved, either as em- bodied in the Legislative Code or as found and determined by the council; (3) The interrelationship of the licenses and their relative importance to the overall busi- ness enterprise of the licensee or applicant; (4) The management practices of the licensee or applicant with respect to each of such licenses; (5) The eictent to which adverse action against less than all of the licenses or applications would result in difficulty in enforcing and monitoring the adverse action taken; (6) The hardship to the licensee or applicant that would be caused by applying adverse action to all licenses or applications; and (7) The hardship and/or danger to the public, or to the public health and welfaze, that would result from adverse action against less than all of the licenses or applications. (Code 1956, § 510.06; Ord. No.17584, § 1, 8-25-88; Ord. No. 17657, § 15, 6-8-89; Ord. No. 17659, § 2, 6-13-89; Ord. No. 17901, §§ 2, 3, 1-14-92; Ord. No. 17917, §§ 2, 3, 3-31-92; Ord. No. 17922, § 1, 428- 92; C.F. No. 94500, § 3, 7-6-94; C.F. No. 94-1340, § 3, 10-19-94; QE No. 95-473, § 5, 5-31-95) Sec. 310.07. Termination of licenses; surety bonds; insurance contracts. (a) Autom¢tic termination, reinst¢tement; re- sponsibility oflicensee. All licenses or permits which must, by the provisions of these chapters or other ordinances or laws, be accompanied by the filing and maintenance of insurance policies, deposits, guarantees, bonds or certifications shall automat- ically terminate on cancellation or withdrawal of said policies, deposits, bonds or certifications. No licensee may continue to operate or perform the licensed activity after such termination. The lic- ensee is liable and responsible for the filing and maintenance o£ such policies, deposits, guaran- tees, bonds or certifications as aze required in these chapters, and shall not be entitled to assert the acts or omissions of agents, brokers, employees, attomeys or any other persons as a defense or justification for failure to comply with such filing and maintenance requirements. In the event the licensee reinstates and files such policies, depos- its, bonds or certifications within thirty (30) days, the license is automatically reinstated on the same terms and conditions, and for the same period as originally issued. After thirty (30) days, the appli- cant must reapply for a renewal of his license as though it were an original application. (b) Bonds and insur¢nce requiremerzts: (1) Surety Companies: All surety bonds run- ning to the City of Saint Paul shall be writ- Supp. No. 30 2032 �d , i ► OFFICE OF ADMIlVISTRATIVE HEARINGS FOR TAE COUNCIL OF THE CITY OF SAINT PAUL In Re The Licenses Held By James Bailey, Inc. d/b/a Selby Wine & Spirits June 3, 1999 CITY'S PROPOSED EXHIBITS TO: Judge George A. Beck, Administrarive Law Judge, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401 The following constihxtes a list of the City's proposed e�iMts for the Administrative Hearing on June 3, 1999. Exhibit No. Exh. No. 1 Exh. No. 2 E�. No. 3 Description License Application submitted by Vernon W. Crowe for Liquor Off=Sale license, dated October 5, 1998 (4 pp.); Quarter section map of area (1 p.); Notice of Proposed Denial of License Application, dated Apri18, 1999, with Affidavit of Service (3 pp.); Exh. No. 4 Notice of Hearing, dated May 3, 1999, with �davit of Service (4 pp.). � �� Also attached please find courtesy copies of applicable St. Paul City ordinances: St. Paul Legislative Code § 310.05 St. Paul Legislative Code § 310.06 Miun. Stat. §340A.412 Respectfully submitted this 3rd day of June, 1999. �� G-�.N-�. Virguria D. mer Assistant City Attorney Office of The City Attorney 400 City Hall 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 (612)266-8710 . �;� �, . Type of License(s) being applied for: �� Company Name: _ c��G � v Capo+eti n / P If business is incotporate�d giv Doing Business As: � lb � Business Address: _ / /Y CLASS III LICENSE APPLICATION W/iS�� c3 J i L arenmhip/SoleProptietmh7p 7c of incorporation: ..�,,_ �_ �. . sc�enddR„ / Betwern what cross streets is the business located? Are the premises now occupied7 ___ V� What Type of Business7 Mail To Address: AYplicant I3ame and —> �� QQ�� CITY OF SAI�i IT PAUL offiu af L;�rns�. Inspec*+o� and En�iravmental Prote�tior. 350 R Pec SC Surc 300 Sm�[Puil.M'wimu SSI@ . (61�266909p (u�(612)S669I36 �o 3z � � � s� Z; Which side of the street� Home Address: _ �p �l'y �d,�.,�r�, I �lL�i .�` _ ••_•• G ' / tJJA . I� LflSt .w / TtiIC � Saeet Add�eae '- - • - � • - Ciry stnte Zip DateofBirth: �"/3'= PlaceofBirth: etlfS �� ? ��,7^�..L� i-iave you ever oeen convicted of any felony, crime or violation of any ciry ordinance othet than haffic? YES NO � Date of airest: Where? Charge: F- � � Conviction: Sentence: List the names and residences of three persons of good moral character, living within Ihe Twin Cities Metro Area, not related to the applicant or financially interested in the premises or business, who may be referred to as to the applicanYs character: N ADDRESS f PHONE oz-2 � � � / � /� `' `— J /��ST,�/L � — CP/Z Z — 7 _� . /. �,t.i�� C °.��fJ �. Z7�_S� {�� f.r l ,. !%� .. r- /i ,.� � . � s � °� /' r. �/ALT/� c;ry Business Phone: �'l //� List licenses which you cunently hold, formerfy heid, or may have an interest in: Have any oF the above nazned licenses ever been revoked? �.. `_ j'gg � NO If yes, list the dates and reasons for revocation: THIS APPLICATION IS SUBJECT TO REVIEW gy pUBLIC PLEASE TYPE OR PRIN"P IN INK Shect Addreas � City State Z[p / � Are you going to operate this business persona(ly7 � ygS NO If not, who will operate it7 Fint Name hLddle Initial (�feidrn) y� Dete of Hixth Home Addreas: Street Name C � n , S� �p PhoneN�he� � Y� S°�S �� a�gec or assistant in this business? YES ___�._ NO If the managec is not the same as the operator, please complete the following infotmation: Fint N�e M�ddle lnitial (Meidm) � Dem of Bi�th Homc Addreu: St+eet Name Please list your employment history for the previous five (5) year period: List all other officers of the corpora�ion: OFFICER TITLE HOME NAME (Office Held) ADDRESS � �� HOME PHONE State BUSINESS PHONE Phane Number DATE OF BIRTH If business is a partnership, please incl»de the following infoimation for each partner (use 8dditional pages if necessary): � �� _ Homc Addre+a: Shect Neme I�ame Home Ad. �uc.u: SCcc[ Nraac City Lmt DateofBirth S[eG: Zip PhoneK�mmber Lart DateofBirth State - Zip � Phone I�vmbet MINNESOTA TAX IDENTIFICATION NUMBER _ pursuant to the Laws of Minnesoty, 1984, Chaptet 502, Article 8, Section 2(270.72) (Lar Cle�ance; Issuance ofLicenses), ]icensing authorities are required to provide to the State oFMinnesota Commissioner oFRecenue, tfie Minnesota business tax identification number and the social security number of each liceose applicant U¢der the Mumesoty Govemment Data Practices Ac[ and the Federal privacy Act of 1974, we are required to advise you of the following regarding ihe use of the Minnesata Tar ldeniificatian Numher: - This information may be used to deny the issuance or renewal of your license in the event you owe Minnesota sales, employer's withholding or motor vehicle excise taaces; - Upon receiving this information, the licensing authority will supply it only to the Minnesota Depaztment of Revenue. However, under the Federal Exehange of Information Agreement, the Depart��t of Revenue may supply this information to the Internal Revenue Service. M�m�esota Ta7c IdenaficaGon Numbecs (Saies 8c Use Tex Number) may Ge obtained from t�e State of Minnesota, Business Records Department, 10 Rivet Park Plaza (612-296-6181), Social Security Number: City �_ OV � hIlddle Gtitid �y�� Minnesota Tax Identification Number: � 7 Z�Q� _ If a Minnesota Ta�c Iden[ification Number is not required for the businzss being oPerated, indicate so by placing an "X" in the box 4 • 1 � , aa'$ ��' CERTIFICATION OF WORKERS' COMPENSATION COVERAGE PURSUAN'I' TO MINNESOTA SiATUTE 176.182 I haeby certify that I, or my company, am in compliance with the warkers' compensation insurance coverage requirements of Minnesota Statute I76.I82, subdivision 2. I aLso imnderstand tfiat provisiou offalse info:malion in tfris cenification wnstitutes sufficient grounds for adverse action against all licenses held, includiag revocation and sus�ension of said licenses. Nazne of Insurance Company: �L�-L % ��/ �' . _l�,/✓C �L/fcs�s�s�� Policy Number: Coverage from to I have no employees covered under workers compeosation insurance (IIIITIALS) ANY FALSIFICATION OF ANSWERS GIVEN OR 1ViATERIAL SUB�IITTED WILL RESULT I�i i DENIAL OF THIS APPLICATION I hereby state that I have answered all of the preceding questions, and that the infoimation containzd herein is tiue and correct to the best of my 3�owizdge and belief. I hereby state fiuther tfiat I have reczived no money or other consideration, by way of Ioan, gift, contribucion, or othznvise, other ttian already disclosed in the application wtuch I herewith submitted I also understand this premise may be inspected by police, fue, health and other city officials at any and all times when the business is in operation. Signature (REQUIRED for all applications) We will acce�t paymeet by cash, check (made payable to City of Saint Pau� or credit card (M/C or Visa). Date IFPAYlNG BY CREDIT CARD PLEASE COMPLETE THE FOLLOWINC INFORMATION: � MasterCud � Visa EXPIRATIO i 1 DATE: � � � � Nazre ACCOUNL Ir'UMBER: � � � � � � � � � � � � � � � �i of Cazd for all '"Note: If this app;ication is Food/Liquor related, please contact a City of Saint Paul Health Inspector, Steve Olson (266-9139), to review plans. If azy suos[anuai cnanges to structure are anucipated, please contact a City of Saint Paul Plan Examiner at 266-9007 to apply Yor building permits. Ifthere are any changes to the puking lot, floor space, or for new operations, please contact a City of Saint Paul Zoning Inspector at 266-9008. All applications require the following documeats. Please attach these documents when submitting your application: I. A detailed descriplion of the design, location and squaze footage of the premises to be licenszd (site plan). The following data should be on the site plan (prefzrably on an 8 1/2" x 11" or 8 1/2" x 14" paper): - Nazne, address, and phone number. - The scale should be stated such as 1" = 20'. ^N should be indicated towud the top. - Placement of all peRinent features of the intzrior of the licensed facifity such as seating areas, kitchens, offices, repair area, parking, rest rooms, etc. - If a request is for an addition or expansion of the licensed faciliry, indicate both thz cu:rent area and the proposed e�pansion. 2. A copy of your lease agreement or proof of ownership of the property. SPECIk'IC LICENSE APPLICATIONS REQUIRE ADDTI'IOYAL INFORI�IATION. PLEASE SEE REVERSE FOR DETAII,S >>>> � r.` - _ If applying for, Cabaret aduk, please attach written proofthat each employee is at least 18 yeazs old. ConvenationlRap pador adult, please attach written proof that eacfi employee is at least 18 years old Entertainment, please ype�{y �� e, B or C license; obtain and attach signatures of approval from 90% ofyour neighbors withia 350 feet of the establishmen[ 'This 1�� m� be applied far in conjunclion with a Liquor, Wine, Malt On Sale or Rental/Dance Hall license_ Firearms, please auach a leVer with the following information: state if selling or only repairing, Federal Firearms License Number, type of Armed Services dischazge (Honorable, Generai, gad Conduct, Undesirable, Dishonorable, or no military secvice. (NOTE: Establishment must be commercially zoned) Game room, please provide the following information: name of machine and list price. (NpT'E_ A Pool Hall license is required if there aze any pool tables in the establishment) Health/Sports club adult, please attacfi wcitten proof that each employee is at least 18 years oid Liquor off/on �aie, refer to attached liquor appL+'catioa Lock opeaing seiyices, ple� a�h a��yll employces �w�� h�e y�� lephone nttmber) wfio will be doing the lock opening secvice; attach $10,000 Surety Bond. Massage ceater, please attach a detailed description of the services being provided Mazsage center adult, please attach µ.itten proof that each employee is at least 18 yeazs old Massage practihoner, please submitproof ofsVCCessfiil c of written and praclical e�cams from the City of Saint Paul authorized �xaminer'. iasurance certificate showing ;,overage of $1,000,000.00 eacfi generyl liabi(ity and prefessional liabi]iry with the Ciry of Sain[ P� n�med as an addi[ional insurecl, and a 30 day notice of cancellation; proof of affiliation &om a licensed City of Saint Paul therapeutic massage center or state liceased health facility . Motorcycle dealer, please include State of Minnesota Dealer Number. Nerv motor vehicte dealer, please iz;clud State of Minnesota Dealer Number. ` Parldng 1oUramp, Please include the numba ofPaclang spaces, and attach pians containing a gec�-ral de�criplion of the security provided at tfie IoUramp, a site plan showing driveways of the propo� lot and the le al descti tion of [he ro t(us re if no site plan is cucrently on file). Attach a cuver letter describing your plans to comply with the �� dqu��t necessazy only B Painting requirements. Pawnbmker, please attach $5,000.00 Surety Bond. Secon3 hand dealeo-motor vehide, please include State ofi�fiimesota Dealer Number. Second hand dealer-motor vehicte parts, please attach $5,000.00 Surety Bond Steam room/bath house adult, please attach written proof that each empfoyee is at least 18 yea� old Theater adult, please attach written proof that each employee is at least 18 years otd. on Q,a� aa-� �� ;' � ' � N � SE�.5 � T.2 R.2_�___ - - ---#fkRStt,§if - - - - - - � �—�_ ; ., -- T - � — T-- ----- . . � � i �° I'° ., .. � --/ , see - • , ro -' .: ; ..:.: .. � � i . , � � i .. - � y . � � , '�, � 5 ' "3 8�7 6 5 4 3��2 ',10�9 2 7 6'S e 3�2 I' ! �16 �5�14 i3�12�11�10�9�8 7 6' i '__ �- . � nc , � °. = ij, � �K :.�] �(xl � /3c. •xc. i �zs.':u � D 3; :z� :/ , ,. '_ � �° - � I �(w'7 f,.�s• �(csl 22 � .� 10 'x �,' .:: '�J 22 I I ; , S ..a :v � 24 ' ��r. ° � 3 i � i I �I _ :� ' : J, .:. �;c,: , L� � � �� . � �e. :�a 21 ' c 12 � •• � - , i`v' � I M — ':a 3_, ry , iai � - ha 23 - � �•_� �le.' Il�i i;x� i� i ;� �" '" `�z i � � i �'&� �' � � � � � .:yJ . '3� ; ;' ' ; ;z ~ ^' �- . 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(�p�Csi a�i � 1 .�+ F..� i„s.l�m� . �.u>,�nv (� �� i :- a � tm � � � � �4] , I ' ;.. ` w I � � �, , � � � 't� ; z j , .,. n y- r � I 3 44 � t5 � l6 47 �8 �� IOr.Fk � 12 l3 14 t5 l6 � 17 l8' � Il � 42 13 � 14 VS t7 IB 19 20= °f6 ti � I8 � i9 �� 1� 22,�23 24 25 26� F �J�J L� ��19. � '� .,. i L1._..�_ �� _! _y_�� 1 _� �-` W ��s , �_ ` ��$` SELBY) �{7 � ° f � � �ii,., I � Q � .e� - T�" x { ;.v , -- T7 - r T —, � .� eoe � f� � . ��5 4��3 2 1� j9�8 7;6i5 4.b 2 1, '�0 9�8�7'6:5 4 3 2,Is �,1514 4b'12 6�5 i I I Cv1I(rYJ (ar; '(xr (m)' i i ,� i . a {� , 4 �SnA � (Y-' / I O . � 1 �:a� le.�Sm;� �(ec� � �es.� i �c �5� r�e� t� . cu c� ;>' o' ru�, �� d� � L �� 9 c, � ' � ��—___ e.lGv'�O:oicvld�(e31 (wq r PrA�I, Oe>)Ps�.r3;�Or.;i. e ivi�>o� �; �� .en�':s � � � I i , , � . � � ' , I ' �� i . i i i b 10�11121314',1516�17'Id�Iifi1213 "s16171819,202122�1232425�,26 � e=�: p �e„ I , _ I I -, q � ,��, � ,,s, 1 '� � �_ 1�_ �<,�, I i . � �_ i - NA6UE � m � � . , � � r � � �� , ' V � �--r �- �--� , � a e,o �° ° eoo i i � >�, I ;, , � 6 5 4 3� 2 � I � 9 y 6 � 5 4 +/ � ' 3 / 2 y ' , � � 10 9 I 8 7 6 i 5 4 3 l 2 , I� ;�� 13'� 12 � 11 IO 9' 8 � T 6� 5 t . 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(» y(x1 � .>�. � :ml I.as' �x'y ( m_L�� I °' 1"=� 1 P 3J �.` � �. a � �-zs � >U r.�� a.� h,� �, nn na h�i cwi m� ,�� c �� , «�?� �,o�: h�=r n<,; n �1bo�T�`�'_ , �_ _ Al--. —— is I� ., i � � I �' � �: � ` . < 20 21 22 23 24 25 26 27 28 29i3 '16 IB 19� 20i21�22i23 25 , �� ! Crowe d/b/a elby Wine & Spirits � ". . - i�{ _ � i �' City's Exh. No. 2 ...___E.tni i v _ ) � . �� .. , � CITY OF SAINT PAUL Norm Colemun, M¢yor Apri18, 1999 OFFICF OF Tf� CITY ATTORNEY /j ( Clayto�obiruon, ✓r., CiryAnomey �`�1 I� �� 1 Civrl Division 400 City Hall !S West Kellogg Blvd, Saint P¢ul, Minnesota SSIO2 Telephone: 651266-8710 Facsimile: 657 298-5619 NOTICE OF PROPOSED DENIAL OF LICENSE A,PPLICATION Mr. Vernon W. Crowe 650 Dayton Avenue Saint Pau1, MN 55104 RE: Application for off=sale liquor license by Selby Wine & Spirits, d/b/a Selby Wine & Spirits for the premises at 778 Selby Avenue Dear Mr. Crowe: The Directar of the Office of License, Inspections and Environxnental Protection has recommended denial of your off=sale liquor license application for the premises at 778 Se1by Avenue. The basis for the recommendafion is as follows: Minn. Stat. §340A.412, subd. 4(5) prohibits the issuance of an intosicating liquor license "within 1,00 feet of a state hospital, training school, reformatory, prison ar other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commission of corrections." The Dayton Residence, located at 740 Dayton Avenue, is licensed by the Department of Human Services and is located within 1,000 feet of your proposed location. Pursuant to Saint Paul Legislative Code §310.04 you aze entitled to a hearing before an administrative law judge if you dispute the underlying facts which form the basis for the denial of your license application. If you wish to have such a hearing, piease send me a letter indicating that you are contesting the facts. A hearing will be scheduled and you wili then be sent a Notice of Heazing with the time, date and place of the hearing, the name of the administrative law judge who will preside and a brief description of the procedures to be foilowed. You may aiso choose to withdraw your license application at this time, and if you wish to do so you must send that request in writing to the LIEP Office. �n r . �� Crowe d/b/a elby Wine & Spirits � City's Exh. No, 3 �age 2 • • Vernon Crowe C� l� Aprii 8, 1999 �q� � If I have not received a written request for a hearing by Apri123, 1999 I will assume that you aze not contesting the factual basis for the recommended denial of the license application. Please feel free to contact me if you have any questions regazding this matter. Sincerely, �� V irginia D. Palmer Assistant City Attorney cc: Robert Kessler, Director of LIEP Christine Rozek, Deputy Director of LIEP Summit-University Planning Council, 627 Selby Avenue, Saint Paul, 55104 � � w,. < < , , ' � STATE OF MINNESOTA ) ) sS. COUNTY OF RAMSEY u aa�$�'� AFFIDAVIT OF SBRVICE BY MAIL JOANNE G. CLEMENTS, being first duly sworn, deposes and says that on April 9, 1999, she served the attached NOTICE �F PROPOSED DENIAL OF LICENSE APPLICATION on the following named person by placing a true and correct copy thereof in an envelope addressed as follows: Mr. Vernon W. Crowe 650 Dayton Avenue St. Pau1, MN. 55104 (which is the last known address of said person) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 9th day�e€� April, 1999. � Notary 9 � E� Jan. I CITY OF SAINT PAUL Notm Coleman, Mayar �r May 3, 1999 OFFICE pP TAE C=Ty ATTORNBy Cluyton �binson, Jr., CiLy AKOrney ��] Q 1 � n "4`UF`� Civi[Division 400CrtyHa11 Telephanc 651266-8710 ISiYestXelloggBlvd Facsimile:651298-56Z9 Saint P¢u� Minnuot¢ SSIO2 NOTICE OF HEARING Mr. Vernon W. Crowe 650 Dayton Avenue Saint Pail, Minnesota 55104 RE: License application of Mr. Vemon W. Crowe d/b/a Selby Wine & Spirits for the premises located at 778 Selby Ave. in St. Paul Our File Number: G99-0154 Dear Mr. Harmon: Please take notice that a hearing will be held at the following time, date and place concerning the license application for the premises stated above: Date: Thursday, June 3,1999 Time: 9:30 a.m. Place: Ruom 40-A St. Paul City Hall 15 West Kellogg Boulevard Saint Paui, Minnesota 55102 The hearing wi11 be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: Name: George A. Beck O�ce of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN, 55401 Telephone: 612-341-7601 �� . . , � Crowe d/b/a elby Wine & Spirits _'i — City's Exh. No. 4 , The Council of the City of�aint Pau1 has the authority to provide fo�arings concerning lice /� �� premises and for adverse acrion against such licenses and applicafions, under Chapter 310, including sections 31Q.05 and 310.06, of the Saint Paui Legislative Code. In the case of licenses for intoxicaring and non-intoxicating liquor, authority is also conveyed by Mimiesota Statutes section 340A.415. Adverse action may inciude denial, revocarion, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action ao�st the license application submitted for the above premises as follows: ` Minn. Stat. §340A.412, subd. 4(5) prohibits the issuance of an intoaicating liquor license "within 1,000 feet of a state hospital, training school, reformatory, prison or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commission of corrections." The Dayton Residence, located at 740 Dayton Avenue, is license�by the Department of Human Services an� is located within 1,000 feet of your proposed location. The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrative Law Judge will have all parties identify themselves for the record. The City will then present its witnesses and evidence, each of whom the licensee or attorney may cross-examine. The licensee or their attomey may then offer in rebuttal any witnesses or evidence theY may wish to present, each of whom the City's attorney may cross-examine. The Admuustrative Law Judge may in addition hear relevant and materiai testimony from persons not presented as witnesses by either pariy 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 have substantial interest in the outcome of the proceeding. Concluding azguments may be made bY the parties. Following the hearing, the Judge wi11 prepare Findin�s of Fact, Conclusions of Law, and a specific recommendation far action to be taken by the City Council. 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 Minnesota Rules, part 1400.7000. If a stipulation or agreement can be reached as to the facts, that stipulation will be presented fo the Administrative Law Judge for incorporation into his or her recommendation for Council action. If the licensee or their representative fails to appeaz at the hearing, the licensee's ability to challenge the allegations will be forfeited and the aliegations against the licensee which have been stated eazlier in this nofice may be taken as true. If non-public data is received into evidence at the hearing, Notice of Hearing - Page 2 - it may become public u� objection is made and relief reques�under Minnesota Statutes, • ' Section 14.60, subdivisio �' � � 1 If you have any questions, you can call me at 266-8710. Very iruly yours, U� t�� ,�i�,.�.-„�.� Virginia D. Palmer Assistant City Attorney cc: Mr. Thomas D. Harmon, Wagner, Falconer & Judd, Ltd, 3500 IDS Center, Minneapolis, MN 55402 Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Community prgullZer Distriet 8, Summit-University Plauning Council, 627 Selby Ave., St. Paul, MN 55104 Notice of Hearing - Page 3 � , -. ---� STATE OF MINNESOTA ) ) ss. COUNPY OF RP.MSEY � . � �• 1 AFFZDAVIT OF SERVICE BY MAIL JOANNE G. CLEMENTS, being fir5t duly sworn, deposes and says that on May 3, 1999, she served the attached NOTICE OF HEARING on the following named person by placing a true and correct copy thereof in an envelope addressed as follows: Mr. Vernon W. Crowe 650 Dayton Avenue St. Paul, MN. 55104 (which is the last known address of said person) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 3rd d��f M�� 19�. PETER P. PANGBORN Notary n '�� '�� ; ��y 3�a ��,�\� srn� oF NmvrrESOra DEPARTMENT OF HUMAN SERVICES Human Services Building 444 Lafayette Road St Paul, M'innesota 55155-38 INSTRUCTIONAL BUlLETIN #88-16H T0: Chairperson, 8oard of County Cortmissioners Attention: �irector Chairperson: Human Services 8oard Attention: Director Institutions for Mental Diseases Attentio Director Medicai Assistance and tndividuals Residing i� I. II PURPOSE Eligibility for The purpose of this bulletin is to ciarify poticy for individuais residing in institutions for mental diseases (IMDs) and requesting Medical Assistance (MA) or General Assistance Medical Care (GAMC). In addition. this bulletin provides information about a new federal law and a list of IMDs in Minnesota. This bulietin is a follow-up to Instructional Bulletin #88-16A issued April 24, 1988 and shouid be read in conJunction Nith that builetin. BACKGROUND A person up to age 21 (or up to age 22 if the person has been in a Joint Commission Accreditation of Hospitals (JCAH) accredited psychiatric program continuously since prior to his/her 21st birthday) or a person age 65 or oider is e)fgible for MA 1f reslding in an IHD, provided that the person meets ali other eligibility criteria. A person between the ages of 21 and 65 is not eligible for MA if residing in an IMD. A. Institutions for Mental Diseases An IMO is defined as an institution primarily enqaged in providing diagnosis, treatment or care of persons with mental diseases, including medical attention, nursing care and related services. � n re e icense a p a i n .+ — Crowe d/b/a Selb Wine & Spirits City's �xh. No. $ � "2.� 1988 ti 0 �� ,�. � � ,� D� r -:. ;a `+. �, ,,. ;'-, ( :tic+. , - , .c ; �� ti, �:. ' o i` . ."' JN ` nstitutions for Mentai Di AN EQUAL OPPORNNITY EMPLGcnn INSTRUCTIONAL BUILETIN #88-16H November 23. 1988 Paae 2 Effective Ju}y 1. 1988, the Medicare Catastroohic Coverage Act of 1988 amended the Social Security Act (42 U.S.C. 1396d) to further define the term iMD as follows "The term 'institution for mental diseases' means a hoscitai. nursina faciiity, or other institution of more than 16 beds, that is orimarily engaged in oroviding diagnosis. treatment, or care of aersons with mentai diseases, including medical attention. nursing care. and related services." With this ciarified definition of an IMO. the Deoartment has reviewed institutions throuahout Minnesota. Foliowing is a list of institutions which have been determined to be IMDs. AH-GWAH-CH[NG NURS[NG HOME Ah-Gwah-Ching, MN 56430 ANDREW CpRE HOME l215 South 9th Street Minneaoolis. MN 55404 ANOKA METRO REGIONAL TREATMENT CENTER` 3300 4th Avenue North Anoka,�MN 55303 BANNOCH[E NURS[NG HOME 3515 2nd Avenue South Minneacolis. MN 55408 B[lL KELLY HOUSE 2544 Piilsbury Avenue South Minneacolis. MN 55404 BIRCHW000 CARE HOME 715 West 31st Street Minneaoolis, MN 55408 BRAINERD REGIONAL TREATMENT CENTER• 1777 Highway 18 East Brainerd, MN 56401 BRISTOL PLACE (Not inciuding Bristoi Place located at 202 Ridgewood Ave. So.) 400 Ridaewood Avenue South Minneaoolis. MN 55403 DAYTON BOARDING CARE HOME 740 Dayton Avenue St. Paui, MN 55104 EAGLE LAKE HOME Route 1. 8ox 65 Cromwell. MN 55726 INSTRUCTIONAL BULLETIN #88-16H November 23. l988 Paqe 3 EDEN HOUSE 1025 Portiand Avenue Minneapolis, MN 55404 EMERSON PLACE NORTH 2304 Emerson Avenue North Minneapolis, MN 55411 FAMILYSTYLE HOMES 398 Duke Street St. Paul. MN 55102 FERGUS FALLS REGIONAL TREATMENT CENTER• Mental Health Division Box 157 Fergus Falis, MN 56537 FRANKLIN P�ACE EAST 2100 Ist Avenue South Minneapolis, MN 55404 GRANO AVENUE REST HOME 3956 Grand Avenue South Minneapolis, MN 55409 GRANVILLE - JANE DICKMAN CENTER 1665 woodbury Drive Woodbury, MN 55043 GRANVILLE - TEAM CENTER 54 West Exchange Street St. Paul, MN 55102 GREEN IAKE MANOR 263 L.ake Avenue North Spicer, MN 56288 GUILD HALL 286 Marshail Avenue St. Paul, MN 55102 HAYES RESIDENCE I620 Randolph Avenue St. Paul, MN 55105 HEWITT HOUSE 1593 Hewitt Avenue St. Paui, MN 55104 HIGH POINT LODGE Route i, Box 346 Ciear Lake, MN 55319 ��.�ti�e INSTRUCTIONAI BUL�ETIN #88-16H November 23, 1988 Paae 4 HOIKKA HOUSE 238 Pleasant Avenue St. Paul, MN SSL02 HORISON WEST HEALTH CARE CENTER 1620 Oak Park Avenue North Minneapolis, MN 55411 JANUS: A WILLONS' TREATMENT RESIDENCE 8041 12th Avenue South 810t 12th Avenue South Bloomington, MN 55420 JOHNSON REST F�ME 516 2nd Street Southeast Fosston, MN 56542 MARCH HOUSE 3159 Park Avenue South Minneapolis, MN 55407 MINNESOTA SECURITY HOSPITAL !00 Freemah Drive St. Peter, MN 56Q82 MINNETONKA HEALTH CARE CENTER 20395 Summerville Road Excelsior, MN 55082 MISSION FARMS NURSING HOME 3401 Medicine Lake Boulevard Minneapolis. MN 55441 MERRITT HOUSE Box 470 BiWabik, MN 55708 MOOSE LAKE REGIONAL TREATMENT CENTER* IOQO Lakeshore Drive Moose Lake, MN 55767 NEW FOUNDATIONS 796 Capitoi Heights St. Paui, MN 55103 NORTHWESTERN APARTMENTS t00 Gretchen Lane Craokston, MN 56716 OAK GROVE CARE CENTER l31 Oak Grove Street . Minneapolis, MN 55403 INSTRUCTIONAL BULLETIN #BS-16H November 23. l988 Page 5 OAKLAND HOME 97 North Oxford St. Paul, MN 55104 OASIS 6739 Goiden Valiey Road Golden Valley, MN 55427 PARKSIDE HOMES, 8ox 348 Soudan, MN INC. 55782 PASSAGENAY 2708 Portiand Avenue South Minneapolis, MN 55407 P[LLSBURY BOARD AND CARE 2500 Pillsbury Avenue South kinneapolis, MN 55404 PINEVIEW RES[DENCE 69 North Milton St. Paul, MN 55104 QUARRY HIIL RESIOENTIAL TREATMENT CENTER 2t16 East Center Street Rochester. MN 55901 QUEEN NURS[NG HOME 300 Queen Avenue North Minneapolis, MN 55411 REENTRY HOUSE 5812 Lyndaie Avenue South Mtnneapolis, MN 55419 RIVERVIEN HOMES, INC. Star Route Brookston, MN 5571Z ST. IUKES' HOME 222 Ninth Avenue West Alexandria, MN 56308 ST. PETER REGIONAL TREATMENT CENTER• MI Units 100 Freeman Drive St. Peter, MN 56082 ST. WILLIAMS ANNEX Sao Street Parkers Prairie, MN 56361 ��,��e INSTRUCTIONAL BULLETIN #88 November 23, 1988 Page 6 SENTINEL HOUSE 2122 Portiand Avenue South Minneapolis, MN 55404 SOUTHSIDE CARE CENTER 2644 Aldrich Avenue North Minneapolis, MN 55408 STILlWA7ER RESIDENCE 220 West Olive Stiilwater, MN 55082 WELLSPRING THERAPEUTIC COMMUNITY 245 Clifton Avenue South Minneapolis, MN 55403 MtLLMAR HEALTH CARE CENTER/WORTHSIDE RESIOENCE`• 500 Russell Street Wilimar, MN 56201 WILLMAR REGIONAL TREATMENT CENTER' M[ Unit Box 1128 Nilimar, MN 56201 'Otilv the psychiatric hospital portion is considered an [MD; not the ICF/MR portion. ••Onlv the ICF-II beds are considered an IMD; not the SNF beds. III. LOCAL AGENCY ACTION A. MA Eliaibilitv for IMD Residenta An individuai who is cortmitted or voluntarily admitted to an IMD is considered to be a resident of that IMO (even if that individual is tenporari)y reteased from the !MD for the purpose of obtaining medical treatment) unless one of the foliowing conditions exist: a. The individual is on a conditional release. An individual sent hane for for a trial visit is considered to be on a conditional release. � b. The individual is on convalescent teave. An individual sent home to recover from an illness is considered to be on convalescent leave. c. The individual is discharqed or voluntarily discharges him/herself. An individual is considered dischar'ged only'if he/she would need to seek readmission throu4h normal procedures in order.to b'e acYnitted to the IMD at a later date. �a��' INSTRUCTIONAL Bl1Ll.ETIM #88-ibH November 23. 1988 Paae 7 An individual who resides in an IMD fs not eligible for MA uniess the individuai meets ali other MA eligibility criteria and one of the folioaing conditions exist: a. The individuai is under the age of 2t and resides in a JCAH accredited fac9lity. b. The individuai is under age 22 and has been in a JCAH accredited Psychiatric program continuously since prior to his/her 21st birthday. c. The individual is age 65 or over. d. The individuai is a participant in the MA Demonstration ProJect in Hennepin, Dakota, or Itasca County and has been placed in an IMD by the HMO/capitated payment contractor. An individuai who is not etigible for MA due solely to IMD residency must be terminated from MA with a t0-day advance notice as outiined by Instructional Bulletin #88-16A. B. GAMC Eli9ibititv for IMD Residents Beginning January 1, 1989, an individual who is terminated from MA, inciuding MSA recipients and AFDC recipients age 18 and older, due solely to his/her IMD residency may acpiy for GAMC. GAMC eligibility for this individual is determined using MA eligibility criteria (i.e., $3000/6000 asset limit rather than 51000 asset limit) excepting the IMD residency restriction. In short, GAMC eligibility is availabie to any individual who would be a MA recipient if he/she did not reside in an [M0. GAMC eligibility may exist for the individual untii the day prior to discharge (inclutling voluntary discharge), conditionai release, or convalescent leave. In these situattons, an individual may reappiy for MA because the individual is not considered to be an IMD resident and, therefore, cannot receive GAMC if he/she is eligible for MA. . C. MA Eitaibilitv for Individuals in a Consolidated Chemical Deaendencv Treatment Fund Provider Facilitv Effective July i, 1988, individuals receiving chemical dependency rehabilitative services aere eligible for MA if residing in a facility with a bed capacity of 16 beds or Iess, an acute care hospitai or their own home. [ndividuais under the age of 65 are not eligible for MA while residing in a residential setting of more than 16 beds, except for individuals under age 2t receiving inpatient psychiatric services as defi�ed in 42 CFR 440.160 and 42 CPR 441, subcart D. INSTRUCTIONAL BUILETiN #68-16H November 23, t988 Page 8 D. Notice of Action/Aoplication In cases where the local agency is terminati�g MA eligibitity (whether or not GAMC eligibility is being opened), a notice of the negative action and appeal rights must be given to an individual t0 days prior to the effective date of the notice. [n cases where the local agency is terminating GAMC eligibility and opening MA eligibility, an advance notice of the action is not necessary, because it is not a negative action. !n cases where the client's MA or GAMC eligibility is being terminated and the ciient wants to obtain eligibility for the other program, a new application must be filed With the local agency. E. Case Manaaement Services for Individuals with Serious and Persistent Mental Illness A seParate Instructional Builetin wiil be issued which Mill define case management for individuals with serious and persistent mental iilness. In brief, a MA recipient who is seriously and persistentiy mentally iii wiil be eligible for case management services effective January 1, 1989. A GAMC recipient will not be eligible for case ma�agement services uniess he/she is a resident of an IMD. F. IMD L9vina Arran9ement Cade For an appiicant/recipient who is an [MD resident, an IMD livinq arrengement code must be coded on the DHS-l06 forms. An A& C Memo with this code and the applicable instructions is forthcoming. The DHS-l06 forms must be coded accurately to alloa a GAMC recipient in an IMD to receive case management services and enhanced perinatal services, if appropriate. G. Revised Fu�dina Chart Attached to this bulletin is a chart Mhich indicates program eliglbiiity for MA, GAMC. Minnesota Supplemental Aid (MSA), and General Assistance (GA). In order to pay the negotiated rate for a General Assistance or Minnesota Supplemental Aid cifent, both.the GA and the MSA programs require that the county agency approves of the placement in the• facility or agrees that the client needs the care and services provided by the negotiated rate facility. [n addition, counties must observe exist9ng MSA and GA program instructions in establishing rates for these facilities. There are restrictions in state law �hich may prevent payment of the entire former rate using MSA or GA fu�ds. In these instances> the county may make additional payments from county funds, if it chooses to do so. The Department plans to approach the legislature with a request to revise these restrictions, but cannot predict the legislature's tNSTRUCTIOMAL BULLETIN #88-16H November 23, 1988 Page 9 IV. QUESTIONS qq � Questions from local agencies regardi�g this bulletin should be directed to: Income Maintenance Policy Center Program Administration Department of Human Services 444 Lafayette Road St. Paul. MN 55155-3834 Questions fran other parties should be directed to: Kathie Lindbtad Chariene Seavey Health Care Management Division Long Term Care Management Division Department of Human Services Department of Huma� Services 444 Lafayette Road 444 Lafayette Road St. Paul, MN 55155-3848 St. Paui, MN 55t55-3844 (6(2) 296-8818 (6t2) 296-6963 Sincerely. �'` ��i'r�u� �i�f:i� MARIA R. GOMEZ Assistant Commfissio�er - � �q,$� �e Revlsion 7/25/88 MA/GAMC Fundinq Service/Board and Room RTC/Community Piacement/CD/MI/MR (For persons who wouid otherwise be eligibie for MA) (GAMC recipients must meet GAMC eligibility income and asset requirements) (IHD definition excludes faciiities 16 beds or less Age: under 21 (up to 22 if Person in at 21st Age: 65 Resitles in birthdav) Aae• 21-64 and oider ICF/MR Bed [n RTC or Commun i tv Services: Eligibility: Own Nome Services: Eligibility: MA pays services � roan and board GA or MSA in canbination with other iflCOt118 pi'O vides for clothing and personal needs MA GA or MSA for shelter and basic needs CD: CD services through CDTF (MA/ FFP available) (other medical through MA) MA pays services 8 roan and board GA or MSA in combination wfth other income pro- vides for clothing and personal needs MA GA or MSA for sheiter and basic needs CD: CD services through CDTF (MA/ fFP available) (other medical through MA) MA pays services 8 roan and board MSA i n ca� i na- t3on with other income provides for clothing and Personai needs MA MSA for shelter 8 basic needs C0: CD services through COT� (MA/ FFP available) (other medicai through MA) MI: services th�ough MA MR: services through MA MA MI: services through MA MR: services through MA na SNf/ICF Level GA/MSA provides GA/MSA provides IMD not JCAH ciothing 8 PN ciothing 8 pN Accredited)_ ailowance ailowance MI: services through MA MR: services through MA na GA/MSA provides ciothing 8 PN ailowance -z- Services: CD: services 8 board 8 room through CDTF . (no fFP) C0: services 8 board 8 room through CDTf (no FFP) Eligibility: Psvchiatric Hospitai MI: no services MI: no services coverage avaitabie coverage available MR: no services MR: no services coverage availeble coverage available �ot eligibie MA rrot eligibie MA GA/MSA provides ciothing 8 PN aliowance Services: C0: room and board and services paid through CDTF/ MA FfP available MI: MA pays roan and board and services Eligibility: MI or CO Unit in Acute Care Hosaital MR: MA pays roan and board and services MA eligible GA/MSA provides clothing 8 PN allowance GA/MSA provides clothing 5 PN ailoaance CD: roan and board & services through COTF (no FFP) MI: services GAMC MR: services GAMC Not MA eligi6le GAMC eligibie GA/MSA provtdes clothing & PN ailowance' Services: CD: CDTF pays CD: COTF pays roan and board room and board 8 services (MA 8 services (MA FFP availabie) FFP availabie) MI: MA pays room and board and . services MI: MA pays room and board and services CD: services paid CDTF/MA pays room and board 8 other medical services (MA FFP avaitable? MI: MA pays services and roan and board MR: MA pays services and roan and board eligibla MA GA/MSA provides clothing 8 PN ailowance CD: services 8 room and board paid through CDTF (MA-FFP available) MI: MA pavs services and room and board MR: MA pays services and roan and board MA eitgible GA/MSA provides ciothing S PN ailowance CD: CDTF pays room and board 8 services (MA FFP available) Mi: MA pays roan and board and services Eligibility: SNF/ICF �evel IMD (JCAH Accredited) Services: Eligihility: MR: MA pays room and board and services MA eilgibie GA/NSA provides ciothing 8 PN ailowance CD:,COTF pays services (MA FFP available) MA pays roqn and board and other medical services M[: MA pays room and board and services MR: MA pays roan and board and services MA eligible JCAH Accredited IMD GA/MSA pays roan (not SNf/ICF) & board costs H( alfwav House/ (negotiated Rule 36 rates) & clothing & personal needs Services: Eligibility: CD: CDTF pays services (MA FFP available) and room and board (no FFP availabie) MA pays other medical services MI: MA pays services only MR: MA pays services only MA eligible - 3 - MR: MA pays room and board and services MA eligible GA/MSA provides clothing & PN allowance C0: CO services through CDTF (no FFP) outside medical services GAMC MI: outside medical services GAMC MR: outside medicai services GAMC Not MA eligible GA/MSA pays roan � board costs (negotiated rates) if not covered by CDTF 8 clothing 8 personal needs CD: services through CDTF (no FFP) GAMC pays other services MI: services through GAMC MR: services through GAMC Not MA eligible - GAMC eligible �i j ' MR: MA pays room and board and services MA eligibie GA/MSA provides clothing 8 PN allowance CD: CDTF pays CD services (FFP available) MA pays room and board and other medical services MI: MA pays room and board and services MR: MA pays roan a�d board and services MA eligible MSA pays room 8 board costs (negotiated rates) 8 ciothing 8 personai needs CD: CDTF pays services (MA fFP available) and room and board (no fFP available) MA pays other services M[: MA pays services oniv MR: MA pays services oniv MA eligibie M[ or CD Bed in RTC (JCAH Accredited) of 17 or more beds Services: Eligibility: MI or CD Freestandinq Residentiai Communitv Facilitv (Not JCAH ACCredited) more than 16 beds Services: GA/MSA provides clothing 8 PN aitowance CD: CDTF pays services S roan and board (MA FFP available) MA pays other services MI: MA pays services and roan and board MR: MA pays services and roan and board' MA eligible GA/MSA pays roan 8 board costs jf not covered by CDTF (negotiated rate) 8 clothing & pEi'sone l needs CD: COTF pays room 8 board CD services (no MA FFP availabie) - GAMC for medical services Mi: GAMC for medical services MR: GAMC for medical services :� GA/MSA provides clothing & PN aliowance CD: CDTf for room and board and in house services (no FFP) - GAMC for outside medical services MI: GAMC for outside medicai services MR: GAMC for outside medical services Not MA eligible - GAMC eligibie GA/MSA pavs roan 8 board costs if not covered by CDTF (negotiated rate) & ciothing 8 personal needs CD: COTF pays room 8 board CO services (no MA FFP available) - GAMC For medical services MI: GAMC for medical services MR: GAMC for medicai services Eligibility: Not MA etigible - Not MA eligible - GAMC eligible GAMC eiigible GA/MSA provides clothing & PN ailowance C0: CDTF pays services and room and board (MA FFP available) MA pays other medical services M1: MA pays services and roan and board MR: MA pays services and room and board MA eligible MSA pays room 8 board costs if not covered by CDTF (negotiated rate) 8 ciothing 8 perso�al needs C0: CDTF pays CD services (MA FFP available) 8 room and board MA pays medical services M(: MA pays services MR: MA pays services MA eligible MI or CD Free- Standinq Resid- entiat Communitv Facility not JCAH Accredited) 16 beds or less Eligibility: CD: CDTF pays room S board 8 CD ser- vices (MA FFP available on services) HA pays other medical services GA/MSA pays ciothing and personal needs MI: HA pays for medical services GA/MSA pays room and board (negoti- ated rate) and clothi�g and personai needs MA eligible -s- CD: COTF pavs room 8 board 8 CO ser- vices (MA FFP avaitable) MA pays other medi- cal services GA/MSA pays clothing and personai needs M[: MA pays for medicai services GA/MSA pays room and board (negoti- ated rate) and clothing and personal needs MA eilgible � � I CD: CDTF pays room 8 board & CD ser- vices (MA FFP avaitable) on services) MA pays other medicai services GA/MSA pays clothing and personal needs M[: MA pays for medical services GA/MSA pays room and board (negoti- ated rate7 and clothing and personal needs MA eligible § 340A.411 e LIQUOR ACT bowling ceaters. Section 5 of tlus amendment established the effective date of the amend- ment and retroactively validated bowling cen- ter on-sale licenses in effect on that date to their date of issuance. Iaws 1987, c. 152, art. 1, § 1 provides: Laws 2987, c. 5, § 3, authorized t[ie issuance lish d n�Ma nesota Statutes 986A is reen- of on-sale nonintoxicating liquor licenses to acted." Laws 1876, c. 8q § I. Iaws 3875, c. 112, § i. Laws IS70, c. 32. Gen.St1866, c. 16, § I. Laws 1866, c. 40, § 1. Pub.St.1858, c. 18, § 15. Iaws 1858, c. 74, § 1. Library References Intoxicating Liquors �44 et seq., 46, 101. C.J.S. Intoxicating Liquors §§ 90, 91, 138 to WESIT.AW Topic No. 223. 144. Notes of Decisions Club 2 � Grocery stores 3 � Milltary reservations �, riumber of llcenses , T '�� 1 ; ! would not be a prerequisite to granting of a proper license to an organization tliat would otherwise qualify. Op.Atry.Gen., 217f-2, June 16, 1967. If baseball committee was a bona fide club, 1. Number of llcenses license could be issued thereto. O At Gen., Counry boazd has authority to limit number z17-F-1, Mar. 19, 1953. p Ty of non-intoxicating malt liquor licenses to be issued, and resolution to issue no more licens- 3. Grocery stores es would be bar to consideration of any future applications for licensing until such time as On-sale license may not be issued to grocery such resolution waz rescinded. Op.Atty.Gen., stores. Op.Atty.Gen., 120, April 12, 1946; Op. 217-B-2, April 28, 1955. Atty.Gen., 217-B-5, May 29, 1945. City council had right to determine how many 3.2 beer off-sale licenses to grant. Op. 4. Military reservations Atty.Gen., 217-B-4, Feb. 7, 1449. License for sale of 3.2 beer is not required of 2. Club , a canteen operated as an adjunct or agency of A club house or other structure from which federal government. Op.Atty.Gen., 217-F-I, nonintoxicating malt liquor was to be sold June 3, 1948. 340A.412 License restrictions; intoxicating liquor licenses I, Subdivision 1. Repealed by Laws 1989, c. 49, § 8, � ' Subd. 2. InvestlgaHon of on-sale llcenses. (a) The city or county having ' jurisdiction over on-sale licenses to sell into�cating liquor shail on initiai �' application for an on-sale license or on application for a transfer of an e�sting license conduct a preliminary background and financial investigation of the applicant. The application must be in the form prescribed by the bureau of criminal apprehension and with any additional information as the governing body of the city or county having jurisdiction over the license requires. If the governing body of the city or county having jurisdiction determines or if the bureau of criminal apprehension on its own initiative determines that a comprehensive background and investigation of the appli- cant is necessary, the governing body may conduct the investigation itself or contract with the bureau of criminal apprehension for the investigation. In addition, an investigation may be required prior to renewal of an existing on-sale license when the governing body of the city or county deems it in the 94 LIQUOR ACT § 340A .412 t public interest. An investigation fee not to exceed $S00 shall be charged an } applicant by the city or county if the investigation is conducted within the state, or the actual cost not to exceed $10,000 if the investigation is required ouuide the state. S (b) No license may be issued, transferred, or renewed if the results of the � investigation show, to the satisfaction of the governing body, that issuance, i transfer, or renewal would not be in the public interest, Subd. 3. Limitations on issuance of llcenses to one person or place. (a) No more than one off-sale intoxicating liquor license may be directly or � indirectly issued to any one person or for any one place in each city or 3 county. (b) For the purpose of this subdivision, the term "interest": (1) includes any pecuniary interest in the ownership, operation, manage- ment, or profits of a retail liquor establishment, and a person who receives money from time to time directly or indirectly from a licensee, in the absence oE consideration and excluding gifts or donations, has a pecuniary interest in the retail license; and (2) does not include loans; rental agreements; open accounts or other obiigations held with or without security arising out of the ordinary and regular course of business of selling or leasing merchandise, fixtures, supplies to the establishment; an interest in a corporation owning or operating a hotel but having at least 150 or more rental units holding a liquor license in conjunction therewith; or ten percent or less interest in any other corporation holding a license. (c) In determining whether an "interesY' exists, the transaction must have been bona fide and the reasonable value of the goods and things received as consideration for a payment by the licensee and all other facts reasonably tending to prove or disprove the existence of a purposeful scheme or arrange- ment to evade the restrictions of this subdivision must be considered. Subd. 4. Licenses prohibited in certain areas. (a) No license to sell intoxicating liquor may be issued within the following areas: (1) where restricted against commercial use through zoning ordinances and other proceedings or legal processes regularly had for that purpose, except licenses may be issued to restaurants in areas which were restricted against commercial uses after the estab]ishment of the restaurant; (2) within the capitol or on the capitol grounds, except as provided under Laws 1983, chapter 259, section 9;' (3) on the state fairgrounds or at any place in a city of the first class within one-half mile of the fairgrounds, except as otherwise provided by charter; (4) on the campus of Minnesota or at any place the campus. provided that area that is not included provided by charter; the college of agriculture of the University of in a city of the first class within one-half mile of a city may issue one on-sale wine license in this in the area described in clause (3), except as � t '� � 95 § 340A.412 ��'`�� LIQUOR ACT (5) within 1,000 feet of a state hospital, training school, reformatory, prison, or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commissioner of corrections; (6) in a town or municipality in which a majority of votes at the last election at which the question of license was voted upon were not in favor of license under section 340A.416, or within one-half mile of any such town or municipality, except that intoxicating liquor manufactured within this radius may be sold to be consumed outside it; (7) at any place on the east side of the Mississippi River within one-tenth of a mile of the main building of the University of Minnesota unless the licensed establishment is on property owned or operated by a nonprofit corporation organized prior to January 1, 1940, for and by former students of the University of Minnesota; (8) within 1,500 feet of a state university, except only 1,200 feet from Winona and Southwest State University, provided that within 1,500 feet of St. Cloud State University one on-sale wine and two off-sale intoxicating liquor licenses may be issued, measured by a direct line from the nearest corner of the administration building to the main entrance of the licensed estabiish- ment except at Mankato State University the distance is measured from the front door of the student union of the Highland campus; and (9) within 1,500 feet of any public school that is not within a city. (b) The restrictions of this subdivision do not apply to a manufacturer or wholesaler of intoxicating liquor or to a drugstore or to a person who had a license originally issued lawfully prior to July 1, 1967. Subd. 5. Licenses in connection with premises of another. An intoacicat- ing liquor license may not be issued to a person in connection with the premises of another to whom a license could not be issued under the provisions of this chapter. This subdivision does not prevent the granting of a license to a proper lessee because the person has leased the premises of a minor, a noncitizen who is not a resident alien, or a person who has been convicted of a crime other than a violation of this chapter. Subd. 6. Off-sale licenses where nonintoxicating malt liquor is sold. An ofF-sale intoxicating liquor license may not be issued to a place where nonintoxicating malt liquor is sold for consumption on the premises. This subdivision does not apply to those places where both an on-sale and off-sale license or a combination license have been issued under section 340A.406. Subd. 7. Drugstores. No intoxicating liquor license may be issued to a person operating a drugstore unless the person has operated it for at least two yeazs or has purchased a drugstore that has been in continuous operation for two or more years. Subd. 8. Expiration date. All intolcicating liquor licenses issued by a county or a city, other than cities of the first class, must expire on the same date. Subd. 9. License transfer. A license may be transferred with ihe consent of the issuing authority, provided that a license issued to a location at a 96 1 ., qq' STATE OF MINNESOTA) ) ss COUNTY OF HENNEPII� AFFIDAVIT OF SERVICE BY U.S. MAIL CINDY A. RINGDAHI., being fust duly swom, hereby deposes and says that on the 13TH day of � 1999, at the City of Minneapolis, county and state aforemenrioned, she served the attached FINDINGS OF FACT, CONCLUSIONS AND RECOMn�NDATION; 1-2111-12199-3 by depositing in the United States maIl at said City of Minneapolis, a true and correct copy thereof, properly enveloped, with first class postage prepaid and addressed to the individuals named herein. VIRGINIA PALMER ASSISTANT CITY ATTORNEY 400 CITY HAI.L 15 W KELLOGG BLVD ST PAUL MN 55102 KENNETH M BOTTEMA, ESQ. 3001 HENNEPIN AVE S SUITE 309B MINNEAPOLIS MN 55408 FRED OWUSU, CITY CLERK 170 CITY HAI.L 15 WEST KELLOGG BLVD ST PAiTL MN 55102 Subscribed and sworn to before me( this �3�– day of ___\� L� �_ 1998. 7�f C� �`-�/✓L27c7�Ci Notary P} lic / . nnnn��,nnnnnnnnnnnnnnMnM.'NAM/NM• ` CINDY ETIENNE � < S �� NOTARY PUBLIC-MINNESOTA }�„ �� ANOKACOUNTY � My Comm. Expires Jan. 31, 2000 q yyyyyyyyyyVWWVWVVNi vVVWVVVVVW • �� i s 1-2111-12199-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY COUNCIL OF THE CITY OF SAINT PAUL In Re the License Application of Vernon W. Crowe, d/b/a Selby Wine & Spirits, for the Premises Located at 778 Selby Avenue in St. Paul FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION Administrative Law Judge George A. Beck, serving as a hearing examiner for the City of St. Paul, conducted a hearing in this matter beginning at 9:30 a.m. on Thursday, June 3, 1999, at the St. Paul City Hall. The record closed upon receipt of the final written memorandum on June 30, 1999. The Applicant, Vernon W. Crowe, was represented by Kenneth M. Bottema, Esq., 3001 Hennepin Avenue South, Suite 309B, Minneapolis, Minnesota 55408. The St. Paul Office of License Inspections and Environmental Protection (LIEP) was represented by Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102. NOTICE This Report is a recommendation, not a final decision. The St. Paul City Council will make the final decision after reviewing the record and may adopt, reject or modify these Findings of Fact, Conclusions and Recommendations. Under § 310.05(c-1) of the City's Legislative Code, the City Council will provide the Applicant the opportunity to present oral or written argument to the City Council before it takes final action. The parties should contact the St. Paul City Council to determine the procedure for presenting argument. STATEMENT OF ISSUE The issue in this case is whether or not the City of St. Paul should grant an off-sale liquor license to the Applicant for 778 Selby Avenue. Based upon the evidence and argument in the record, the Administrative Law Judge makes the following: q�-$�� FINDINGS OF FACT 1. Vernon W. Crowe submitted an application to the City dated October 5, 1998, for an off-sale liquor license at 778 Selby Avenue in St. Paul, doing business as Selby Wine & Spirits, Inc.' 2. The proposed location is approximately 340 feet from the Dayton Residence located at 340 Dayton Avenue? 3. The Dayton Residence is a residential treatment program for adults with mental iliness. It is licensed for 26 beds. It is 100 percent funded by the State of Minnesota. 4. The Dayton Residence is licensed by the Department of Human Services (DHS). DHS makes a site visit to the facility every two years to review its staff, procedures and services. The treatment for residents of Dayton Residence is funded through consolidated mental health grants which are allocated by DHS to Ramsey County. Room and board at the facility is funded through individual client grants. 5. The Dayton Residence is administered by a qualified person licensed by DHS. DHS personnel are not present day to day at the residence. The Department has authority to step in and supervise at the residence if necessary. 6. DHS classifies the Dayton Residence as an institution for mental diseases (IMD) which is defined under federal law to be "a hospital, nursing facility, or other institution and more than 16 b€ds, that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services." 4 7. The Dayton Residence is not a state hospital, training school, reformatory or prison. 8. On April 8, 1999, Mr. Crowe was issued a Notice of Proposed Denial of License Application. The sole grounds of the denial was that the proposed location for the off-sale liquor license was within 1,000 feet of the Dayton Residence. The notice advised Mr. Crowe that he was entitled to a hearing. ' EX. l. z EX. z. ' 42 U.S.C.1396d. ° Ex. 5. 5 Ex. 3. 7 q �'$��' 9. Mr. Crowe requested a hearing and a Notice of Hearing was issued on May 3, 1999, setting the hearing for June 3, 1999 6 10. Two members of the public testified at the hearing in support of the application. 11. LIEP had no other objections to this application apart from its proximity to the Dayton Residence. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. The St. Paul City Council and the Administrative Law Judge have authority to conduct this proceeding and to make Findings of Fact under Minnesota law and the St. Paul City Code.� 2. The City of St. Paul gave Mr. Crowe proper and timely notice of the hearing in this matter. 3. The burden of proof in this proceeding is upon the applicant. 4. Minn. Stat. § 340A.412, subd. 4(5), prohibits the issuance of an intoxicating liquor license: within 1,000 feet of a state hospital, training school, reformatory, prison or other institution under the supervision or control, in whole or in part, of the Commissioner of Human Services or the Commissioner of Corrections; 5. The applicant has demonstrated that the Dayton Residence is not an institution under the supervision or control of the Commissioner of Human Services. 6. The proposed location at 778 Selby Avenue is not in violation of Minn. Stat. § 340A.412, subd. 4(5). 7. The exhibits attached to the applicanYs brief are stricken from the record. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: 6 Ex. 4. ' St. Paul Legislative Code § 310.05-.06; Minn. Stat. § 14.55; Minn. Stat. § 340A.415. 3 q�'$�� RECOMMENDATION IT IS HEREBY RESPECTFULLY RECOMMENDED: that the City Council of the City of St. Paul approve the off-sale liquor license application of Vernon W. Crowe, d/b/a Selby Wine & Spirits. Dated this 13 day of July 1999. ,� ��l�._ GEORGE A. B K Administrative Law Judge Reported: Taped-no transcript prepared. MEMORANDUM The City of St. Paul disapproved the off sale liquor license application of Vernon W. Crowe based upon its good faith determination that the proposed location was within 1000 feet of an institution under the supervision or control of the Commissioner of Human Services, namely, the Dayton Residence. The Dayton Residence is a 26 bed residential treatment program located at 340 Dayton Avenue in St. Paul. It is licensed by the Department of Human Services which conducts site visits at the facility and funds the facility. This case presents a question of statutory interpretation, namely, whether a residential treatment program is an institution under the supervision or control of the Commissioner of Human Services, within themeaning of Minnesota liquor law. The objective of statutory interpretation is to ascertain and effectuate the intention of the legislature. The applicant must demonstrate that its proposed location at 778 Selby Avenue complies with the statute set out at Conclusion No. 4. He first asserts that the Dayton Residence is not an institution within the meaning of the statute. He points out that Minnesota law does not define the Dayton Residence as an institution but describes it as a"residential program". "institution" is not defined in Minnesota law. The City notes that words used in the statutes are to be interpreted according to their plain and ordinary meaning. It points out that one dictionary definition of institution includes "a public or private place for the care or confinement of inmates, esp. mental patients or other disabled or handicapped persons.' It is also defined as "a place for the care of persons who are destitute, 8 Cummings v. Koehnen, 556 N.W2 586, 589 (Minn. App 1996) 9 Minn. Stat. § 645.08(1) 10 Random House Dictionary of the English Language, (2" Ed. Unabridged 1987) 4 q��$�� disabled, and mentally ill." The City argues that the Dayton residence is a building used for the care of inentally ill adults and therefore falls within the dictionary definition of "institution". The City also cites case law from other jurisdictions that interprets the word "institution" . As the City acknowledges, however, that case law is necessarily specific to the statute being examined and does not provide much precedent for Minnesota liquor law. It does not appear that the legislative intent was to include residential facilities within the prohibition contained in Minn. Stat. § 340A.412, subd. 4(a)(5). At the hearing the City relied upon the federal definition contained in a regulation that classifies the Dayton Residence as an irtstitution for mental disease. That definition, however, was adopted for the implementation of federal law decisions, such as medical assistance funding, and has no particular applicability to Minnesota liquor law. The City also argues that because the word institution as used in the statute is not modified by words such as "similar" or "such", the question is not whether the other institutions are sufficiently like state hospitals, training schools, reformatories or prisons, but simply whether fhey are an insfitution of any kind. However, the legislature chose to specify "other" institutions rather than "every" institution. Furthermore, this argument ignores the legal principle of ejusdem generis, which is codified in Minnesota Statutes. This canon of construction provides that general words are construed to be restricted in their meaning by preceding particular words." For example, in a recent case the Minnesota Supreme Court had to decide whether a blood bank was included within the category of "a hospital, sanitarium, nursing home or other institution for the hospitalization or care of human beings." The Court noted that by listing hospitals, sanitariums and nursing homes before the more general "other institutions", the legislature indicated an attempt to include only those institutions which share common characteristics with the specific institutions listed. The word institution, therefore, cannot be interpreted without reference to the preceding particular words. State hospitals, training schools, reformatories or prisons are distinctly different from residential facilities commonly located throughout communities. The facilities cited are all places of confinement. Another dictionary definition of institution is "� place of confinement, as in a mental asylum". It seems likely that the legislature intended this prohibition to apply to institutions similar to those specifically named where inmates or patients are confined and separated from the community. The applicant also argues that the Dayton Residence is not under the supervision or control of the Commissioner of Human Services. He suggests " American Heritage College Dictionery (3` Ed. 1993) 12 Minn. Stat. § 645.08(3) 13 Kaiser v. Memorial Blood Center of Mpls., Inc. 486 N.W.2d 762 (Minn 1992) 14 486 N.W.2d at 766 15 American Heritage College Dictionary, (2° Ed., 1982) � aq�$��e that licensure is different from supervision or control. He cites a dictionary definition of supervise as "to have the charge and direction of; superintend." A dictionary definition of "control" defines it as "to exercise authoritative or dominating influence over; direct".�� He notes that department personnel testified that the department is responsible for monitorina the program and argues that this is not supervision or control. The City points out that the Department of Human Services conducts background investigations on staff, investigations of complaints, does site visits, adopts rules setting standards for the facility and has the authority to assume control of the program if necessary. It points out that the statute talks about supervision or control "in whole or in part" which implies something less than full management or staffing by the department. It notes that the statute could have specifically stated that it only applied to institutions owned, operated or staffed by the department, but does not do so. As noted above, words in statutes are to be construed according to their common and approved usage. The common dictionary definition suggests that the legislature intended that the commissioner have charge of the institution, or direct the institution, in order to bring it within this prohibition. The commissioner clearly supervises and controls state hospitals, for example. The departmenYs licensing and enforcement functions as described in this record do not rise to that level. Since the proximity of the Dayton Residence was the only objection presented by the City to this application, it is recommended that the City Council approve the application. The applicant submitted four exhibits attached to its post-hearing memorandum. The City objected to their inclusion in the record. Since these exhibits were not offered at the hearing and the City did not have an opportunity to review or object to the exhibits, they must be strickert from the record. � 16 American Heribge Dictionary (1999) ° American Heritage Dictionary (1999) 18 Minn. Stat. § 645.08(1) v CITY OF SAINT PAUL Norm Colemnn, Mayor _ _- � ' — �--' rn '�;�,�: - y �.�i ��QE �� .��t_ . .. . �� J May 3, 1999 OFFICB OF THE CITY ATTORNEY �� Clayton M. Robinson, Jr., City Attorney i Civi[Division 400 Gry HuI( IS West Kellogg Blvd Sa+nt Paul, Minnesot¢ 55102 Telephonc 6 572668710 Fncsimile: 65I 298-5619 NOTICE OF HEARING Mr. Vernon W. Crowe 650 Dayton Avenue Saint Pa11, Minnesota 55104 RE: License appiicafion of Mr. Vernon W. Crowe d/b/a Selby Wine & Spirits for the premises located at 778 Selby Ave. in St. Paul Our File Number: G99-0154 Dear Mr. Hannon: Please take notice that a hearing will be held at the following time, date and place conceming the license application for the premises stated above: Date: Thursday, June 3,1999 Time: 9:30 a.m. Place: Room 40-A St. Paul City Hall 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 The hearing will be presided over by an Administrarive Law Judge from the State of Minnesota Office of Administrative Hearings: Name: George A. Beck Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN, 55401 Telephone: 612-341-7601 � qq ,� �� The Council of the City of Saint Paui has the authority to provide for hearings concerning licensed premises and for adverse action against such licenses and applications, under Chapter 310, including sections 310.05 and 310.06, of the Saint Pau1 Legislative Code. In the case of licenses for intoxicating and non-into�cating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include denial, revocafion, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action against the license application submitted for the above premises as follows: Minn. Stat. §340A.412, subd. 4(5) prohibits the issuance of an intoxicating liquor license "within 1,000 feet of a state hospital, training school, reformatory, prison or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commission of corrections." The Daytan Residence, located at 740 Dayton Avenue, is Iicense by the Department of Human Services ans is located within 1,000 feet of your proposed location, The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrarive Law Judge will have a11 parties identify themselves for the record. The City will then present its witnesses and evidence, each of whom the Iicensee or attorney may cross-examine. The licensee or their attorney may then offer in rebuttal any witnesses or evidence they may wish to present, each of whom the City's attomey may cross-examine. The Administrative Law Judge may in addition hear relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants ofproperty located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding azguments may be made bY the parties. Following the hearing, the Judge will prepare Findings of Fact, Conclusions of Law, and a specific recoxnmendation for action to be taken by the City Council. 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 Minnesota Rules, part 1400.7000. 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 the licensee ar their representative fails to appeaz at the hearing, the licensee's ability to challenge the allegations will be forfeited and the allegations against the licensee which have baen stated earlier in this notice may be taken as true. If non-public data is received into evidence at the hearino, Notice of Hearing - Page 2 ,it may become public unless objection is znade and relief requested under Minnesota Statutes,� r � Section 14.60, subdivision 2. If you have any questions, you can cail me at 266-8710. Very truly yours, _�� Virginia D. Palmer Assistant City Attorney cc: Mr. Thomas D. Hannon, Wagner, Falconer & Judd, Ltd, 3500 IDS Center, Minneapolis, MN 55402 Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Community prganizer District 8, Summit-University Plamiing Council, 627 Selby Ave., St. Pau1, MN 55104 Notice of Hearing - Page 3 Qi�tt7��tlt Presented B� Referred To RESOLUTION Council File # 99 - g 1 !, Green Sheet # � �3 1 WI�REAS, the Office of License, Inspections and Environmental Protecrion (LIEP) 2 recommended denial of an off-sale liquor license application by Vernon W. Crowe d/b/a Selby 3 Wine & Spirits , for the premises at 778 Selby Avenue, pursuant to Minn. Stat. §340A.412, subd. 4 4(5), asserting that the Dayton Residence at 340 Dayton Avenue was "an institution under the 5 supervision or control, in whole or in part, of the Commissioner of Human 5ervices"; and 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 WfIEREAS, a hearing was held before Administrative Law Judge George A. Beck on June 3, 1999 and he issued Findings of Fact, Conclusions of Law and Recommendation on July 13, 1999 in which he determined that the Dayton Residence was not the type of institution contemplated by §340A.412, subd. 4(5), and recommended issuance of the off-sale liquor license; and WIIEREAS, at the City Council hearing on August 11, 1999, LIEP did not file exceptions to the Report but recommended the adoption of the ALJ's Report and Recommendation; now, therefore, be it RESOLVED, that the Council of the City of Saint Paul, after due deliberation based upon all of the files, records and proceedings herein, adopts the ALJ's Findings, Conclusions and Recommendation, and the same shall be attached and incorporated herein by reference; and be it CITY OF SAINT PAUL, MINNESOTA ' y 99 -�i� 2 FURTHER RESOLVED, that the application of Vernon Crowe, d/b/a Selby Avenue 3 Wine & Spirits for an off-sale liquor license at 778 Selby Avenue, is hereby approved and said 4 license shall be issued. 6 A copy of this Resolution, as adopted, shall be sent by first class mail to the Licensee, his 7 attorney and the Admanistrafive Law Judge. Requested by Department of: Ey: Form Apprave� by City Atto €y'� _J sy: i y�_ Approved by M or for Submission to Covncil By: By: Appsoved by May te � qq BY: Adopted by Council: Date S l� `� Adoption Certified by Council S etary `t9 - s�b DEPARTMENT/OFFICE(COUNCIL OAiE WmpTEO City Council Offices $-13-99 GREEN SHEET No 63434 COMAC7 PERSON & PFIONE ��#e �nrclauoaze Jerry Blakey, 26b-8610 ot,.R..a.w¢c.oa anconxx MUST BE ON COUNCIL AGENDA BY (OA'fE) ❑ ❑ August 25, 1999 �" MUYBERFOR tlIYATiOMtEY Grvd.flfK ROUTING � ❑RYNfILLfFME4GBt ql�lllWLiEPVIACCTG ❑ WYORIORASpYfNlII ❑ . TOTAL # OF SIGNATURE PAGES (CLJP ALl LOCATIONS FOR SIGNATURE) C710N REQl1ES7m Approving application for an off-sale liquor license by Vernon Crowe, DBA Selby Avenue Wine and Spirits, at 778 Se1by Avenue. RECOMMENDATION Approve O a Rejed (R) VERSONALSERVICE CONTRACfS MUSTANSWER THE FOLLOWING Q1IESTIONS: 1. Has this persoNfirm ever worked under a wntract tor Mis department� PLANNING COMMtSStON vES w0 CIB COMMITTEE 2. Hes �his pereon/firm ever been e Cily empbyee� CIVILSERVICECAMMISSION VES NO 3. Does ihis pxsoNfirm possess a sitill not namaltypossessetl by any curteM cdy employee? YES � a. Is Mis persoMrm a taro�d `rendoR YES NO Fxplain all yes answers on sepaiate sheet and attach to preen shee[ INITIATING PROBLEM ISSUE, OPPORTUNITY (Whq Wliat, When, WhNe, Why) ADVANTAGESIFAPPROVED ��'•� k'i��E�A�� V�:��:�'u7� . , _ _ . AUG 1 3 19�9 DISADVANTAGES IFAPPROVED � DISADVANTAGES IF NOT APPROVE� � TOTAL AMOUNT OF TRANSACTION S COST/REVENUE BUDGETED (CIRCLE ON� YES NO FUNOING SOURCE ACTMTY NUMBER FINANGPL INFORMATION (IXPlA1N) _ OFFICE OF THE CITY ATTORNEY Clayton M. Robinson, Jr., CityAnanrey 9g-$�� ua � CITY OF SA1NT' PAUL Norm Coleman, Mayor May 11, 1999 Civi[Division 900CiryHall Telephone:657166-8710 I S Wes1 Kellogg B/vd Facsimile: 65! 298-5619 Saint P¢vl, �nnesot¢ SSIO2 NOTICE OF COUNCIL HEARING ��ts�;;� ��;� ��, Mr. Kenneth M. Bottema 3001 Hennepin Avenue South, Suite 309B Mimieapolis, Minnesota 55408 RE: License application of Vernon W. Crow d/b/a Selby Wine and Spirits For the premises located at 778 Selby Avenue in St. Paul Our File Number: G99-0154 Dear Mr. Bottema: , �, � � 1�g9 r ;�",Ff�."`��', ;CL�v�r:�?'?'i�c.:.a JUL 1 � ��' Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, August 11,1999, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opporhuiity to file exceptions to the report with the City Clerk at any time during normal business hours. You may also present oral or written azgument to the council at the Hearing. No new evidence will be received or testimony taken at this hearing. The Council wiil base its decision on the record of the proceedings before the Administrative Law Judge and on the arguments made and exceptions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its judgement and discretion. Sincerely, �� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Chrisfine Rozek, LIEP Carmen Berg, Executive Director, Summit-University Planning Council, 627 Selby Ave., St. Paul, MN 55104 °Iq-gll. 1-2111-12199-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY COUNCIt OF THE CITY OF SAINT PAUL In Re the License Application of Vernon W. Crowe, d/b/a Selby Wine & Spirits, for the Premises Located at 778 Selby Avenue in St. Paul FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION Administrative Law Judge George A. Beck, serving as a hearing examiner for the City of St. Paul, conducted a hearing in this matter beginning at 9:30 a.m. on Thursday, June 3, 1999, at the St. Paul City Hall. The record closed upon receipt of the final written memorandum on June 30, 1999. The Applicant, Vernon W. Crowe, was represented by Kenneth M. Bottema, Esq., 3001 Hennepin Avenue South, Suite 309B, Minneapolis, Minnesota 55408. The St. Paul O�ce of License Inspections and Environmental Protection (LIEP) was represented by Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102. NOTICE This Report is a recommendation, not a final decision. The St. Paul City Council wiil make the final decision after reviewing the record and may adopt, reject or modify these Findings of Fact, Conclusions and Recommendations. Under § 310.05(c-1) of the City's Legislative Code, the City Council wiil provide the Applicant the opportunity to present oral or written argument to the City Council before it takes final action. The parties should contact the St. Paul City Council to determine the procedure for presenting argument. STATEMENT OF ISSUE The issue in this case is whether or not the City of St. Paul should grant an off-sale liquor license to the Applicant for 778 Selby Avenue. Based upon the evidence and argument in the record, the Administrative Law Judge makes the following: aq-S�c. FINDINGS OF FACT 1. Vernon W. Crowe submitted an application to the City dated Ocfober 5, 1998, for an off-sale liquor license at 778 Selby Avenue in St. Paul, doing business as Selby Wine & Spirifs, Inc.� 2. The proposed location is approximately 340 feet from fhe Dayton Residence located at 340 Dayton Avenue. 3. The Dayton Residence is a residential treatment program for aduits with mental illness. It is licensed for 26 beds. It is 100 percent funded by the State of Minnesota. 4. 7he Dayton Residence is licensed by the Department of Human Services (DHS). DHS makes a site visit to the facility every two years to review its staff, procedures and services. The treatment for residents of. Dayton Residence is funded through consolidated mental health grants which are allocated by DHS to Ramsey County. Room and board at the faciliry is funded through individual client grants. 5. The Dayton Residence is administered by a qualified person licensed by DHS. DHS personnel are not present day to day at the residence. The Department has authority to step in and supervise at the residence if necessary. 6. DHS classifies the Dayton Residence as an institution for mental diseases (IMD) which is defined under federal law to be "a hospital, nursing facility, or other institution and more than 16 b�ds, that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services ° 4 7. The Dayton Residence is not a state hospital, training schooi, reformatory or prison. 8. On �prif 8, 1�99, P/ir. Lrowe was issued a iVoiice of Proposed Deniai of License Application. The sole grounds of the denial was that the proposed location for the off-sale liquor license was within 1,000 feet of the Dayton Residence. The notice advised Mr. Crowe that he was entitied to a hearing 5 ' EX. i. Z Ex. z. ' 42 U.S.C.1396d. ` Ex. 5. 5 Ex. 3. � aq-�� 9. Mr. Crowe requested a hearing and a Notice of Hearing was issued on May 3, 1999, setting the hearing for June 3, 1999 6 10. Two members of the public testified at the hearing in support of the application. 11. LIEP had no other objections to this application apart from its proximity to the Dayton Residence. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. The St. Pau! City Co�ncil and the Administrative Law Judge have authority to conduct this proceeding and to make Findings ofi Fact under Minnesota law and the St. Paul City Code.' 2. The City of St. Paul gave Mr. Crowe proper and timely notice of the hearing in this matter. 3. The burden of proof in this proceeding is upon the applicant. 4. Minn. Stat. § 340A.412, subd. 4(5), prohibits the issuance of an intoxicating liquor license: within 1,000 feet of a state hospital, training school, reformatory, prison or other institution under the supervision or control, in whole or in part, of the Commissioner of Human Services or the Commissioner of Gorrections; 5. The applicant has demonstrated that the Dayton Residence is not an institution under the supervision or control of the Commissioner of Human Services. 6. The proposed location at 778 Seiby Avenue is not in violation of Minn. Stat. § 340A.412, subd. 4(5). 7. The exhibits attached to the appiicanYs brief are stricken from the record. Based upon the foregoing Conciusions, the Administrative Law Judge makes the following: 6 Ex. 4. ' St. Paul Legislative Code § 310.05-.06; Minn. Stat. § 1455; Minn. Stat. § 340AA 15. 3 _, . q4 -$�t. RECOMMENDATION IT lS HEREBY RESPECTFULLY RECOMMENDED: fhat the City Council of the City of St. Paul approve the off-sale liquor license application of Vernon W. Crowe, d/b/a Selby Wine & Spirits. Dated this 13 day of July 1999. �o ��-_ GEORGE A. B :administrative Law Judge Reported: Taped-no transcript prepared. MEMORANDUM The City of St. Paul disapproved the off sale liquor license application of Vernon W. Crowe based upon its good faith determination that the proposed location was within 1000 feet of an institution under the supervision or control of the Commissioner of Human Services, namely, the Dayton Residence. The Dayton Residence is a 26 bed residential treatment program located at 340 Dayton Avenue in St. Paul. lt is licensed by the Department of Human Services which conducts site visits at the facility and funds the facility. This case presents a question of statutory interpretation, namely, whether a residential treatment program is an institution under the supervision or control ofi the Commissioner of Human Services, within themeaning of Minnesota fiquor law. The objective of statutory interpretation is to ascertain and effectuate the intention of the legislature 8 The applicant must demonstrate that its proposed location at 778 Sefby Avenue complies with the statute set out at Concfusion No. 4. He first asserts that the Dayton Residence is not an institution within the meaning of the statute. He points out that Minnesota law does not define ihe Dayton Residence as an institution but describes it as a"residentiai program". "Institution" is not defined in Minnesota law. The City notes that words used in the statutes are to be inferpreted according to their plain and ordinary meaning. It points out that one dictionary definition of institution includes "a public or private place for the care or confinement of inmates, esp. mental patients or other disabled or handicapped persons. It is also defined as "a place for the care of persons who are destitute, 8 Cummings v. Koehnen, 556 N.W.2"" 586, 589 (Minn. App 1996) 9 Minn. Stat. § 645.08(1) 10 Random House Dictionary of the English Language, (2°' Ed. Unabridged 1987) 4 � o�q - 81�. disabled, and mentally ill." The City argues that the Dayton residence is a building used for the care of inentally ill adults and therefore falls within the dictionary definition of "institution". The Cify also cites case law from other jurisdictions that interprets the word "institution" . As the City acknowledges, however, that case law is necessarily specific to the sfatute being examined and does not provide much precedent for Minnesofa liquor law. It does not appear that the legislative intent was to include residential facilities within the prohibition contained in Minn. Stat. § 340A.412, subd. 4(a)(5). At the hearing the City relied upon the federai definition contained in a regu{ation that classifies the Dayton Residence as an institution for mental disease. That definition, however, was adopted for the impfementation of federa{ faw decisions, such as medical assistance funding, and has no particular applicability to Minnesota fiquor iaw. The City also argues that because the word institution as used in the statute is not modified by words such as "similar" or "such", the question is not whether the other institutions are sufficiently like state hospitals, training schools, reformatories or prisons, but simply whether they are an institution of any kind. Ftowever, the legislature chose to specify "other' institutions rather than "every" institution. Furthermore, this argument ignores the legal principle of ejusdem generis, which is codified in Minnesota Statutes. This canon of construction provides that "general words are construed to be restricted in their meaning by preceding particular words." For example, in a recent case the Minnesota Supreme Court had to decide whether a blood bank was inciuded within the category of "a hospital, sanitarium, nursing home or other institution for the hospita�ization or care of human beings." 7he Court noted that by listing hospitals, sanitariums and nursing homes before the more generat "other institutions", the legislature indicated an attempt to inciude only those institutions which share common characteristics with the specific institutions listed. The word institution, therefore, cannot be interpreted without reference to the preceding particular words. State hospitais, training schoofs, reformatories or prisons are distinctly different from residential facilities commonly located throughout communities. The facitities cited are afl ptaces of confinement. Another dictionary definition of institution is "a place of confinement, as in a mental asylum". it seems likefy that the legislature intended this prohibition to apply to institutions similar to those specifically named where inmates or patients are confined and separated from the community. The applicant also argues that the Dayton Residence is not under the supervision or control of the Commissioner of Human Services. He suggests '� American Heritage College Dictionery (3r Ed. 1993) � Minn. Stat. § 645.08(3) " Kaiser v. Memorial Blood Center of Mpls., Inc. 486 N.W2d 762 (Minn 1992) 14 486 N.W.2d at 766 15 American Heritage College Dictionary, (2" Ed., 1982) 5 _ . _ �y_�'1` that licensure is different from supervision or control. He cites a dictionary definition of supervise as "to have the charge and direction of; superintend." A dictionary definition of "control" defines it as "to exercise authoritative or dominating influence over; direct° �� He notes that department pecsonnet testified that the department is responsible for monitorinq the program and argues thaf this is not supervision or control. The City points out that the Department of Human Services conducts background investigations on staff, investigations of complaints, does sife visits, adopts ru�es setting standards for the facility and has the authority to assume control of the program if necessary. It points out that the statute talks about supervision or control "in whole or in part" which implies something less than full management or staffing by the department. it notes that the statute couid have specifically stated that it only applied to institutions owned, operated or stafFed by the department, but does not do so. As noted above, words in statutes are to be construed according to their common and approved usage.� The common dictionary definition suggests that the legisfature intended that the commissioner have charge of the institution, or direct the institution, in order to bring it within this prohibition. The commissioner clearly supervises and controls state hospitals, for example. The departmenYs licensing and enforcement functions as described in this record do not rise to that level. Since the proximity of the Dayton Residence was the only objection presented by the City to this application, it is recommended that the City Council approve the application. The applicant submitted four exhibits attached to its post-hearing memorandum. The City objected to their inclusion in the record. Since these exhibits were not offerp� �` *�� hear:.y and the City did not have an opportunity to review or object to the exhibits, they must be stricken from the record. C��i. 16 American Heritage Dictionary (1999) "American Heritage Dictionary (1999) 18 Minn. Stat. § 645.08(1) 0 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS �I 100 Washington Square, Suite 1700 G�--� �P 1 �0 Washington Avenue South � Minneapolis, Minnesota 55401-2138 July 15, 1999 Fred Owusu, City Clerk 170 City Hall 15 West Kellogg Boulevard St. Paul, Minnesota 55102 Re: In the Matter of the License Application of Vernon W. Crowe d/b/a Selby Wine & Spirits for the Premises Located at 778 Selby Avenue in St. Paul, G99-0154; OAH Docket No. 1-2111-12193-3. Dear Mr. Owusu: Enclosed is a copy of the tape recording from the hearing in the above referenced matter held on June 3, 1999. The record was returned to you on July 13. Sincerely, ; ��2� Sandra A. Haven Administrator of Office Services Telephone: 612/341-7642 Enc. Providing Impartial Hearings for Government and Citizens An Equal Opportunity Employer Administrative Law Section 8 Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 % F i _ T � -- � : �. .' � .. .. .. ,. . ,�'�_. � �� ': , ✓F� �m\ j.; y � � ✓ � ,,"�F'�.v . . �-�. �7' � tl�� ^� � STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS �n ��1� 100 Washington Square, Suite 1700 �� 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 ��CE��E� July 13, 1999 JUL 141999 c�� c�� Fred Owusu, City Clerk 170 Ciry Hall\ 15 West Kellogg Blvd. St. Paul, MN 55102 RE: In the License Application of Vernon W. Crowe, d/b/a Selby Wine & Spirits File No. 1-2111-121199-3 Dear Mr. Owusu: Enclosed herewith and served upon you by mail is the Administrative Law Judge's Findings of Fact, Conclusions and Recommendation in the above- entitled matter. Also enclosed is the official record, the hearing tapes from which will be sent to you under separate cover. Our file in this matter is now being closed. Sincerely, < �>��1-� � � iK,�e °°��' GEORGE A. BECK Administrative Law Judge Telephone: 612/341-7601 GA :cr cc: Kenneth Bottema Virgaaia Palmer Providing Impartial Hearings for Government and Citizens A Eq ual Opportunity Employer Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 "(� `,�r . iy�v^ " CITY OF SAINT PAUL — �- OFFICE OF TF� CTI`P ATTORNEY / f� ClaytonM Robinson, Jr., CiryA#arney ( 7(�i$ � ,�{� Y Civil Division NormColemmt,Mayor t?^ �"�! �'? F,,; �'' �'j 400CityHaZ1 Telephone:651266-8710 "�" �" �. v ]5 West Kellogg BZvd Facsimile: 657 298-5679 � • � - - = Saint Paul, Minnesota SSIO2 Y.. ' . J _ . � i�" f:J'.: June 29, 199 The Honorable George A. Beck Adiniuistrafive Law Judge Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN 55401 RE: In the Matter of the License Application of Vernon W. Crowe, dlb/a Selby Wine & Spirits Dear Judge Beck: Enclosed please find a copy of the City's Fina1 Argument in the above-entitled matter. I note that the case was incorrectly identified in the caption on the CiTy's Proposed E�ibit List. A copy of the Fina1 Argument has been served by mail upon Mr. Bottema, and a copy was sent to him via facsimile on today's date. Sincerely, ��/�� Virginia D. Palmer Assistant City Attorney cc: Kenneth Bottema r OFFICE OF THE CITY ATTORNEY �('j �� Claylon M. Robinson, Jr., City Attorney `��. Mr. Kenneth M. Bottema 3001 Hennepin Avenue So., St. 309B Minneapolis, MN 55408 CivilDivision �, C !� ^ ( � � _- �� 400CityNall Telephone: 651266-8710 ""—' �--� ISWest%IloggBlvd Facsimile:651298-5619 �, � ,� ,. � „ ,� vj Sain! Paul, Minnesola 55102 .irV..i.�..� Y.� ��b/ t „ ALi' i� r �. - ,.,.i ��.. RE: In re the license application of Vernon W. Crowe, d/b/a Selby Wine & Spirits Deaz Mr. Bottema: Bnclosed and served upon you by United States Mail please find the City's Final Argument in the above-entitled matter. Please feei free to contact me lf you have any questions. CITY OF SAINT PAUL Norm Coleman, Mayor Wr June 29, 1999 Sincerely, �� Virgim Assistant City Attorney cc: The Honorable GeorgeA. Beck I a��$�� STATE OFFICE OF ADMINISTRAT'IVE HEARINGS rY =- �' ='' '" � ��,�_ FOR TI� COUNCIL OF THE CITY OF SAINT PAUL �= ��: � �- �. = �� -. ;.�,..:.:.',� . i:�� .. :�� In re the license application of Vemon CITY'S FINAL ARGLIMENT W. Crowe d/b/a Selby Wine & Spirits BACKGROUND This matter involves an application for an off-sale liquor license by Vemon Crowe, dibla Selby Wine & Spirits for the premises located at 778 Selby Avenue, in Saint Paul. The issue to be determined is whether the presence of the Dayton Residence, located at 740 Dayton Avenue, prohibits the issuance of this license in light of Minn. Stat. §340A.412, subd. 4(a)(5), which prohibits the issuance of an intoxicating liquor license "within 1,000 feet of a state hospital, training schooi, reformatory, prison or other insritution under the supervision or control, in whole or in part, of the commissioner of human services or the commissioner of corrections." A hearing was held on 7une 3, 1999, at which time the City presented the testimony of three witnesses, and submitted five e�ibits. The license applicant did not submit e�ibits nor did he offer testimony, although two citizens at the hearing spoke in support of the application. The license applicant has submitted three docutnents with his memorandum which were not introduced at the hearing, and the City asks that these be stricken from the record. -1- ��,$�L TESTIMONY AT THE HEARING At the hearing, the City presented testimony of Christine Rozek, the Deputy Director of the Office of License, Inspections and Environmental Protection, as well as testimony of Jerry Kerber and John Hastings of the Minnesota Department of Human Services. Ms. Rozek testified that she reviewed the application for the off-sale into�cating liquor license submitted by Vemon Crowe, d/b/a Selby Avenue Wine & Spirits for the premises to be located at 778 Selby Avenue, and that it was initially believed to be in compliance with all of the applicable laws and regulations related to liquor licenses. She testified that after nofice was sent that the application was in arder and that notification was being sent to community groups and neighborhood residents, the existence of the Dayton Residence was brought to the attention of LIEP. At that point, she contacted the Department of Human Services and leamed that the facility was licensed by the Department of Huxnan Services as a Rule 36' facil3ty for adults with mental illness. It was a residential facility with room for twenty-six individuals. Measurements done by the LIEP staff indicated that it was 340 feet between the Dayton Residence and the proposed location for Selby Wine & Spirits. Parties have stipulated that the measurement of the distance is not at issue. The City presented testimony of Jerry Kerber, the Director of Licensing for the Minnesota Department of Human Service. Mr. Kerber testified that the Dayton Residence is a residential program for mentally ill adults licensed by the Department of Human Services. The licensing is done under Minn. Stat. §245A.01-245.16 and Minnesota Rules 9520.0050-.0670. 'The reference to a"Rule 36" facility apparently is to an old numbering system which e�sted for the rules relating to residential facilities. Those Rules aze now found at Minn. Rules. 9520.0050-.0670. -2- a �,�� The Department has, pursuant to the licensing statute and rules, requirements for the personnel staffing such a residential treahnent facility (the staff qualifications and ratio), the type of treatment services, trainang requirements for staff, responsibility for perfonning background crimival checks on staff and responsibility for investigation of Vulnerable Adult abuse reports. The Department makes site visits at least every two yeazs to perform a full review of compliance with all of the applicable rules and regulations. It provides the forms for reporting to the Department. The Department has a range of available tools for insuring compliance with the rules and regulations, including issuing correction oxders, assessing fines, issuing a conditional license or suspending or revoking a license. John Hastings also testified. He is with the Department of Human Services, and is a consultant to the State Crroup Residential Housing Program. Mr. Hastings testified that in addition to the licensing, the Dayton Residence receives money through the Deparfinent of Human Services, in the form of state money channeled through the county and Consolidated Mental Health grants. Mr. Hastings testified tt�at the money received by Dayton Residence has restrictions which are tied to its compliance with all of the rules and regulations relating to the operation of a residential treatment facility for the mentally ill. He also testified that residents of the Dayton Residence aze not eligible to receive medical assistance because they are considered to be residing in an"institution for mental diseases" as that term is defined by 42 U.S.C. 1396d. (i). City's E�iibit #5 is an Instructional Bulletin issued November 23, 19988 by the State Department of Human Services which lists facilities which aze considered to be institutions. The Dayton Residence is included under the name "Dayton Boazding Care Home" at the same address. NIr. Hastings testimony was that the Dayton Residence is still considered to be an -3- a �,�� "institution for mental diseases" and that its residents aze therefore ineligible for medical assistance. The license applicant did not testify nor did he submit any e�ibits. "Interested persons" were permitted to speak, and two individuals testified. One man testified that he believed that there were other off=sale liquor stores which were located next to similar facilities and that Mr. Crowe should be treated the same as other applicants. He offered no factual testimony as to the existence of any specific liquor store in Saint Paul which had been issued a license in violation of Minn. Stat. §340A.412, subd. 4(a)(5). BURDEN OFPROOF It is the license applicant who bears the burden of showing that it is entitled to a license and meets a11 the requirements of law for the issuance of the license. In re City of White Bear Lake, 247 N.W.2d 901, 904 (Minn. 1976). In this instance, applicant must show that the Dayton Residence is not an "institution under the supervision or control, in whole ar in part, of the commissioner of human services." ARGi.JMENT Despite the license applicant's azgument in his brief that the City it "advocating and fighting against Mr. Crowe for uuknown reasons", the issue to be determined in this matter is quite simple and straightforwazd. The Office of License, Inspections and Environmental Protection did not become aware of the existence of the Dayton Residence and Minn. Stat. §340A.412, subd. 4(a)(5) until after it detenmined that Mr. Crowe's license application was in order. Once they discovered the existence of the Dayton Residence, and did the necessary measurements and investigation into the type of facility it was, the Office of LIEP believed that it � ��,$ � �e was constrained by the statute to recommend denial of the license. The statute at issue is Minn. Stat. §340A.412, subd. 4(a)(5), which reads as follows: Subd. 4. Licenses prohibited in certain areas. (a) No license to sell intoxicating liquor may be issued within the following azeas: �+* (5) within 1,000 feet of a state hospital, training school, reformatory, prison, or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commissioner of corrections. There are no cases involving interpretation of this secfion of the statute, nor is there any statutory defuution of "institution" contained in Chapter 340A. It is important to note, however, that the statute does not limit itself to only state hospitals, training schools, reformatories or prisons, nor does it indicate that the insfitutions have to be owned, operated by, or managed by the commissioner of human services or the commissioner of correcfions. Instead, the statute includes any 'bther insfitution under the supervision or control, in whole or in part", of said commissioners. Is the Davton Residence an"institution"? The license applicant seems to rely upon the fact that the Dayton Residence is a residentiai treatment facility as a basis to support the fact that it is not an"institution". Absent a statutory definition in either Chapter 340A or Chapter 245A or the Rules promulgated thereunder, the court can look to the intent of the legislature in enacting 340A.412(a)(5), as well as to the rules of statutory construcrion. "The objective of statutory interpretation is to ascertain and effectuate the intention of the legislature." Cummings v. Koehnen, 556 N.W.2d 586, 589 (Nlinn. App. 1996)(citations omitted). The apparent purpose of the secrion at issue was to -5- 1 .- a�'$�� establish a distance restricrion between places licensed to sell intoxicating liquor and facilities for people in the state hospital or correctional system. However, since the enactment of that particulaz section, the State has actively pursued a policy of moving individuals in the state hospitals into smaller, more residential settings. Thus a residential facility such as Dayton House, which is licensed and extensively regulated by the Commissioner of Human Services could reasonably be included in the types of facilities intended to be included within this distance restriction. Words used in statutes aze to be interpreted according to their plain and ordinary meaning. Minn. Stat. § 645.08(1); Cummings v. Koehnen at 589. The word "insfitution" as used in the statute is not modified by words such as"similaz" or "such", and therefore, the question is not whether the other institutions are sufficiently like state hospitals, tranung schools reformatories or prisons, but sunply whether they are an instiiution. Random House Dicrionary of the English Language, Second Edition Unabridged, 1987, defines institution as: institution: 1. An organization, establishment, foundation, society, or the like, devoted to the promotion of a particular cause or program, esp. one of a public, educarional, or chazitable character; 2. The building devoted to such work; 3. A public or private place for the care or confinement of inmates, esp. mental patients or other disabled or handicapped persons. The American Heritage College Dictionary, Third Edition, 1993, defines "institution" as: 3a. An established organization ar foundation ,as one dedicated to education or culture. b. The building or buildings housing an institution. c. A place for the care of persons who are destitute, disabled, or mentally ili. The Dayton Residence, a building used for the care of inentally ill adults, clearly falls within these accepted definitions of an "institurion." � � Although no Miunesota courts appeaz to have interpreted the term "institution" as it appears in §340A.412, or the various statutes relating to the Department of Human Services other jurisdictions have had occasion to interpret the term in relation to specific statutes. In the case of In re Debra B, 495 A.2d 781 (Me. 1985) the Maine court had before it a provision in a sterilization statute which provided that a"disinterested expert" was "an appropriately licensed or cerriped professional not associated with an institution serving the person for whom sterilization is sought." The court apparently accepted without discussion that an institution could include a residential facility and examined the issue of whether it could include an outpatient mental health facility which had provided services to the person. In First National Bank of Gems Falls v. Sheehan, 292 NYS2d 741 (1968), the court looked at a zoning provision which prohibited a gas station within 200 feet of a charitable institution. The station in question was within 200 feet of a building owned by a foundation and leased to the Historical Society. The court reasoned that the term institution meant a"use or facility of some continuing nature" and disposed of the case on the basis that the property was leased. The case of State of Connecticut Dept. of Income Maintenance v. Schweiker, 557 F. Supp. 1077 (U.S. Dis. Ct. 1983) contains an extensive discussion of what is an"institution for mental disease" for the purposes of federal statutes relating to medicaid eligibility, concluding that at a minimum it is a facility providing total care to mental patients. Although each case is necessarily fact specific to the statute being examined, the courts seem to accept the fact that an institution can be public or private and that the terxn refers to the building as well as the use. -7- �la'� 2. Is Dayton Residence under the suroervision and control, in whole or in Dart, of the coxnxnissioner of human services? The second issue for determination is whether the Dayton Residence is under the "supervision or control, in whole or in part, of the commissioner of human services." The statute does not require that the facility be managed by, staffed by, or under the jurisdiction of the commissioners of human services or corrections. Thus, it is a factual detennination whether this facility is supervised or controlled to any degree by the commissioner of human services. The uncontradicted testimony of the two employees of the Department of Human Services established that this facility is cleazly under the supervision and control of the Department in many aspects of its operation. The license applicant characterizes Dayton Residence's relationship with the Department of Human Services as simply one of licensure. However, the testimony established that the Department is responsible for background investigations on staff, investigation of compiaints regarding suspected abuse of vulnerable adults, site visits and full review of compliance with all of the rules and regulations regarding residential treatment facilities. Additionally, the Department has adopted nxles which set forth standards for staff qualifications and on-going training, program content, staff ratios, and types of treatment. Furthermore, Minn. Stat. §§245A.12 and 245.13 provide mechanisms for the Department to voluntarily or involuntarily assuxne operation of the residential programs through appointment of a receiver. There is a degree of regulation and control of the content and operation of residential programs which is faz beyond merely issuing a piece of paper to the facility. Even beyond the licensing aspect of Dayton Residence, however, there is the fact that it receives state funding and grant money which is conringent upon the compliance with all of the � c�q ��e rules and regulations of licensure and the terms and conditions of the grants. Because funding eligibility is ried to licensing criteria and standards, in addition to any other applicable federal or state laws or regulations it is hazd to imagine that this facility is not closely supervised to insure that it maintains compliance. Having the ability to cut off funding as well as to take action against the license tbrough issuance of fines, correction orders, condirional licenses, suspension or revocation of licenses or actual management of the facility through receivership indicates a degree of control by the Department which is more than adequate to meet the requirements of §340A.412, subd 4.(a)(5). The statute could have required that the restriction applied only to facilities owned, operated or staffed by the Deparirnent, but it does not do so, nor is there a requirement that the control or supervision which must be exercised be total. That being the case, the question is whether the Commissioner has some control or supervision over the operation of Dayton Residence. In State ex rel. Virginia & Rainy Lake Co. v. District Court of St. Louis County,150 N. W. 211 (Minn. 1914), the court examined the question of whether an individual was an employee of a company for the purpose of obtaaung Workmen's Compensation. The Court, in determining that the individual was an employee for the purposes of recovery under the Workmen's Compensation Act, stated: The evidence tends to show that the company did not surrender, but reserved, the right to supervise and control the work of Bashko, at least to the ea�tent necessary to prevent waste and loss. They required him to cut the timber clean as he went, and to manufacture it according to specifications fiuvished by them, and also to pile the brush. They inspected his work from time to time and occasionally directed him to remedy defects therein. They had the right to dischazge him at any tnne, and this right afforded adequate means for controlling his work. � � Id at 213. In this instance it is not necessary that there be the same level of supervision and control as an employer would have, but only that there be some degree of supervision and control by the commissioner. The testimony introduced at the hearing shows that the Department of Human Services does periodicaliy inspect the facility, directs the qualifications and training of staff, runs background checks to determine whether individuals are eligible to work at the facility, directs the prograixuning content, staff ratios, acceptable treatment and investigates reports o£ abuse. Furthermore, any violations of the rules and regulations under which the facility operates, or any violation of the conditions of the facility's funding, would enable the Department to fine, issue corrective orders, suspend or terminate the license, cut off funding or petition the court for direct control of the facility tlu�ough appointment of it as a receiver. CONCLUSION For all of the foregoing reasons, the Office of License, Inspections and Environmental Protection believes that the reasonabie interpretation of Minn. Stat. 340A.412, subd. 4(a)(5) is that the Dayton Residence does fall within the restriction contained therein. The facility in question is a residential treatment center for adults who are mentally ill. It is licensed and funded by the Department of Human Services, which has significant control over its operation in the form of rules and regulafions relaring to programming, staff ng, training, treatment of residents, and payment for their services and housing. The federai government lists it as an"institution for mental disease" for the purposes of federal medicaid eligibility guidelines. The license applicant 6� qq�� has failed to sustain his burden of proof that he is not prohibited by the statute from locating his business at 778 Selby because it is within 1,000 feet of an institution under the supervision or control, in whole or in part, of the commissioner of human services. Respectfixlly submitted, 7/ Virgi � D. Palmer Attorney License # 128995 Assistant City Attorney 400 City Ha11/County Courthouse 15 W. Kellogg Boulevazd Saint Paul, MN 55102 (651)266-8710 -11- LAW OFFICES KENNETH M. BOTTEMA c�q �t� 300'I HENNEPIN AVENUE SOUTH �._ � •. i �• ,{; SUITE 309 B C,' �_.. _.. ... �- `" MINNEAPOLIS, MINNESOTA 5540H TELEPHONE [6'127 825-233'I FACSIMILE C6'12] 925-0�61 The Honorabfe �eorge A. Beck Office of Administrative iNearings 100 Washington Square, Suite 1700 Minneapolis, MN 55401 June 22, 1999 "' �- - OF COUNSEL: ii_n.ii.�-.;J LARRYRAPOPORT RE: The License Application of Vernon W. Crowe, d/b/a Selby Wine and Spirits, 778 Selby Avenue, St. Paul, Minnesota, City File No. G99-0154 Dear Judge Beck: Enclosed for filing please find the ApplicanYs Memorandum with respect to the above matter. Thank you for your consideration in this matter. K :mr enc sure Yours ery tru{y en Sottema p �' APPLICANT'S MEMORANDUM June 22, 1999 George A. Beck Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN 55401 - . „ .- ,�: �-°�_'�? ,:,� S �:b, f.:,. - � �_.:_� _ RE: The License Application of Vernon W. Crowe, d/b/a Selby Wine and Spirits, 778 Selby Avenue, St. Paul, Minnesota, City File No. G99-0154 iNTRODUCTION The Applicant, Vernon W. Crowe, has made application for an off-sale liquor license to the city of St. Paul, Minnesota. Mr. Crowe's application was accompanied by the statutorily required materials. On February 11, 1999, Mr. Crowe received a letter from Lawrence R. Zangs informing him that the city had granted zoning approval subject to building improvements and approval of any off-street parking development. ApplicanYs exhibit 1. Mr. Crowe also received a February 5 1999 letter informing him that notice would be sent to the community organization and residents of the neighborhood. ApplicanYs exhibit 2. Mr. Crowe received a letter dated March 5`", 1999, informing him that his applicat+on could no longer be processed because the locat+on of his proposed store was within 1000 feet of the Dayton Residence. ApplicanYs exhibit 3. The letter implied that the city was taking the position that Minn. Stat. g 340A.412, subd. 4(5) was being interpreted to apply to Dayton Residency. �� • �� By letter dated April 8 1999, the city by and through Virginia Palmer, Assistant St. Paul City Attomey, informed Mr. Crowe, that the Director of the Office of License, Inspections and Environmental Protection had recommended denial of his Liquor license application for the premises located at 778 Selby Avenue. This was again based on the position that Minn. Stat. § 340A.412, subd 4(5) applied to the Dayton Residence. Mr. Crowe requested a hearing before an administrative lawjudge. A hearing was scheduled before George A. Beck, Office of Administrative Hearings for June 3 1999 at 9:30 a.m. in the St. Paul City Hall. At the hearing, the city was represented by Virginia Palmer, and Mr. Crowe was represented by undersigned counsel. The issue presented was narrowed to, as a matter of law, was Minn. Stat. § 340A.412, subd. 4(5) applicable. The city called witnesses and introduced exhibits. Several of Mr. Crowe's supporters were present. While Mr. Crowe did not call any witnesses, several of the spectators did ask to give testimony. That testimony revealed the overwhelming support Mr. Crowe has in the community. It should also be noted that Mr. Crowe was approved for a liquor license by the city for a location c%serto the Dayton Residence than his current location. However, that location became unavailable, and Mr. Crowe reapplied for a liquor license at the current Selby Avenue address. The City of St. Paul has not taken a neutral position on this issue. The city, represented by the City Attorney's Office, is advocating and fighting against Mr. Crowe for unknown reasons. Mr. Crowe has complied with all other aq��`� requirements of the application process. But for the city's recent position, Mr. Crowe would, in all likelihood, be in business today. Instead, his dream has been delayed once again. The matter was submitted to the judge with the understanding that Mr. Crowe would submit memorandum of law in support of his position that the city's position is unfounded and his application must be approved. ARGUMENT MINNESOTA STATUTE SECTION 340A.412, SUBD. 4(5) DOES NOT APPLY IN THE INSTANT CASE. The city relies on Minn. Stat. § 340A.412, subd. 4(5) in denying Mr. Crowe's application for a liquor license at 778 Selby Avenue, St. Paul, MN. The statute provides as follows: Subd. 4. No license to sell intoxicating liquor may be issued within the following areas: � � � (5) within 1,000 feet of a state hospital, training school, reformatory, prison, or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commissioner of corrections The city has taken the position that the Dayton Residence is an "institution" as provided for in §340A.412, subd. 4(5). Further, because the Dayton Residence �q,�� is licensed by the commissioner of human services, it is under the "supervision or control" of the commissioner. It is the Applicant's position that this statutory provision does not apply. A. The Dayton Residence is a Licensed Residential Program as Defined by Minn. Stat. § 245A.02, subd. 14, Not an Institution. 7he Dayton ftesidence is a licensed residential program that provides 24- hour-a-day care for individuals who are mentally retarded. See Minn. Stat. § 245A.02, subd. 14. The city provides no authority under state law that defines a "Residential Program" as an "institution" such that the Dayton Residence would be considered in any way an institution. At the hearing the city introduced into evidence an eleven-year-old document titled "Instructional Bulletin #88-16H". According to the document, under federal law, any nursing care facility of "more than 16 beds that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases" is an institution. City of St. Paul's Exhibit No. 5, at page 2. The document itself refers to the program located at 740 Dayton Avenue as the "Dayton Boarding Care Home" not "The Dayton Residence" as it is now known. Because of the dated nature of the city's exhibit #5, it is unclear whether the current program located at 740 Dayton Avenue is still eligible 4or Medical Assista�ce, or whether the program has changed in the past 10 years such that it would not now appear on an updated listing of federal institutions. �� Minnesota Statutes defines a care faciliry providing care to people whose primary diagnosis is mental retardation as a residential program. See Minn. Stat. § 245A.02, subd. 14. Therefore, under Minnesota law, that which the federal govemment calis an "institution", this state has defined as a"residential program. Moreover, in a letter dated Aprif 9, 1999 written by Jerry Kerber, Director of the Division of Licensing for the Department of Human Services states the Dayton Residence is a licensed "mental health treatment program." ApplicanYs exhibit 4. Nowhere on Mr. Kerber's letter does he refer to the Dayton Residence as an "institution." The powers and duties of the commissioner of human services are detailed in Minn. Stat. § 246.01. Therein the legislature has vested with the commissioner the exclusive power to administrate and manage the following state institutions; state hospital for persons with mental retardation, state hospitals for mental iliness, or state hospitals for chemical dependency. No other institutions are listed. It foflows that these are the institutions intended by § 340A.412, subd, 4(5). There is absolutely no authority for the city's position that the Dayton Residence is an institution as to fall under the provisions of Minn. Stat. § 340A.412. On the contrary, the type of services that is provided at Dayton Residence is that of a residential program. A residential program is defined by Minnesota Statute. The legislature, when drafting §340A.412, subd 4(5) could have provided that it applies to residential programs. The legislature did not. Statutes should be strictly construed. Minnesota Statute § 340A.412, subd. 4(5) a�'�� simply does not apply in the instant case because the Dayton Residence is not an "institution" but rather a"residential program" B. The Department of Human Services Does Not Supervise or Control the Dayton Residence Residential Program. The Dayton Residence is licensed. It is required to be licensed as a residential program pursuantto Minn. Stat. § 245A.03, subd. 1(1). Licensure is different from supervision or control. A license is simply a"certificate issued by the commissioner authorizing the license holder to provide a specified program for a specified period of time and in accordance with the terms of the license and the rules of the commissioner." Minn. Stat. § 245A.02, subd. 8. The only definition provided in the statutes for supervision concerns the individuals who supervise children in child care facilities. There is no statutory definition for control in this context. The American Heritage Dictionary, 1999, defines supervise as: To have the charge and direction of; superintend." Synonyms: supervise, boss, ove�look, oversee, superintend. The central meaning shared by these verbs is "to have the direction and oversight of the performance of others": supervised a team of investigators; bossed a construction crew; overlooking farm hands; overseeing plumbers and electricians; superintend a household staff. The American Heritage Dictionary, 1999, defines control as: 1. To exercise authoritative or dominating influence over; direct. See synonyms at conduct 2. To hold in restraint; check: struggled to control my temper, regulations intended to control prices. �iq�$�� 3. a. To verify or regulate (a scientific experiment) by conducting a parallel experiment or by comparing with another standard. b. To verify (an account, for example) by using a duplicate register for comparison. noun 1. Authority or ability to manage or direct: lost control of the skidding car, fhe /eaders in contro! of the country. 2. Abbr. cont., contr.. a. One that controls; a controlling agent, device, or organization. b. Often controls . An instrument or set of instruments used to operate, regulate, or guide a machine or vehicle. 3. A restraining device, measure, or limit; a curb: a control on prices price controis. 4. a. A standard of comparison for checking or verifying the results of an experiment. b. An individual or group used as a standard of comparison in a control experiment. 5. An intelligence agent who supervises or instructs another agent. 6. A spirit presumed to speak or act through a medium. Licensure is not synonymous with control and supervision. Referring to Applicant's exhibit 4, again Mr. Kerber provides the Department of Human Services' position on the issue. He states that the Department is "responsible for monitoring the program." Emphasis added. Not supervising, not controlling. As stated above this is a matter of statutory interpretation. The legislature could have provided that Minn. Stat. § 340A.412 apply to licensed facilities, or more specifically, to licensed residential treatment programs. The legislature did not. Therefore, Minn. Stat. §340A.412, subd. 4(5) does not apply in the instant case. CONCLUSION It is the ApplicanYs position that Minn. Stat. § 340A.412 subd. 4(5) does not apply to the instant application for an off-sale liquor license because the �`��$�� Dayton Residence is not an "institution" but rather a"residential program". Furthermore, it is licensed by the commissioner of human services; it is not supervised or controlled. The city is attempting to stretch an obviously non- applicable statute to fit over the application of Mr. Crowe. The motivation for this position taken by the city is unclear. There is strong community support for Mr. Crowe's application. The neighborhood is behind his efforts. The area business community supports him. Moreover, the city had approved his applicat+on, then denied it based in this statute. Matters of statutory construction are submitted to courts and judges every day. There are volumes dedicated to the principles and philosophies of determining legislative intent. It is Mr. Crowe's position that the legislature has clearly provided this court with its intent. Minn. Stat. § 340A.412, subd. 4(5) is clearly drafted. It simply does not apply in this case contrary to the city's position. Therefore it is respectFully requested that you recommend to the city counsel that Mr. Crowe's application for a liquor license be approved. Respectfully submitted, ` M ---�_ Ge�2a��1 � � : _ � ` Kenneth Bottema Attorney for Vernon Crowe 3001 Hennepin Avenue South Suite 309B Minneapolis, MN 55408 612-825-2331 CITY OF SAINT PAUL -- -. y t�a.�cat��io� ,., „��, i3 ..`i �: t il�. .�1. � � � Febr[�3+ 11, 1999 Verr�n Crowe 65� Dayton rlve Sait►t P�il !sRl�4 551 p4 OFEfCE OF T.[CENSk, TNSRECTIONS AND X �� F�IVUtONA�NP.AL PRO2ECTION .RobrnKev/e� O"vec�or �/ �i V i IAWRYPROk�STtOM�LBUILDQYG Tekphone:657-Y66A090 Stiu 3t10 FacaNrlk: 651d6b•9D9D 350 SC Peur SReet 65I-16G9I24 SaknPanL d8nxmta 53102dSI0 R£: 778 Selby Ave - LiCense !fl#19980007002 for OifSale Liquor 6usinass. Mv. Grawe: 4Ye ara granting zastiing approval tn #he rsferenced license subject to the follow'srsg Cbnditians: • lmprovemersts to the truiiding shall comply with ail applicabie buitding and heafth ccxfes. Watic must be comxslated undes pesmits issued by thfs office. -/3ny of�street parking deveiapmeM must be approved by this office far compfiance with cityr sWndards and be constructed under a permit (see 62_t03[a1 on reverse side). tf you have any questian, cali me at 659/286-9083. s � � Lawc�nce R. 7angs Zoning Administration APPLICANT'S EXHIBIT 1 OFFICE OF LICENSE, INSPECfIOYS AND �q �� 1�4� ENYtRONMEKFAL PROTECf [OPt , - Rabert 6ar4r, Dfrma� C1TY OF SAINT PAUL J ^ ..' c,- l�. �� 0.^. „':��; �. C� �' LOWRYPROFESSIONAL BUILDING TslRphone: 6S! 2ff690➢0 Nors ColNno�, Nsyer '� -- - 330 Su PunSWK Srdts 300 FauLnitc 6�7,2669099 t - � , ;. ; ,' :' � �- - Saut Pattl. Mbenaam i5(02•lSIO 6S1 ZbG9lId _,�. _ ;: Februazy 5, I999 Vraion W. Cro�ve/Owner Setby Wine & 5pizits 798 Sclby Ave. St. Paul, l►+�T 55104 REt Lice3ase application for Selby Wine & Spirits, Eao. DBA Selby Wine & Spirits (ID #i998U047Q42) Liquar Off Sate T.icense . De�ar Appiicant, A zeview of ths iavesflgations which has been made in connection with your license appiication have been compieted. Pzoper notification has been sent ta the community orgauizatiaa as►d residents of the neighborhood in wiuch 3rou antend to operate giving tham until March 19,1999 ta voice any objections to your license apglicarion. Tf no abjectzous are received, your Iicense will be issued approximately one week past the date giveu above. Ifobjections are recezved, a hearing will be scheduled before a legisiative hearing offcer. You wilt receivo notice of the rime, piace and date of the scheduled hearing from Gerry Strathman, the LegisIative Hearing Officer. At that heari�ag, thc hearing offiser will take testimony &om aI1 interested persons and �vill make a recommendation to tha City Council as to whether tbe license(s) should be aggroved or he referred to an administrative Iaw judge for #'urthtr review. '�'he City Council wi11 have the fuial authority to giant or dsny this license application. If you ha.ve aay questions, piease contact Cbristine Rozek, 266-9108. very tru�y ro,ics,• �' R�.. Christine A ltozek DsQuty Director /r•t APPLI€APTT'S EXHIBIT 2 liluV}E � .__. CII'Y OF SAIIVT PAUL Nerer G[esa�. Mmer ��'J,:.� G� ':;`1 �': L;� �s, z� vemon crnwc 650 Dayton Avemu Saiad Pant MN 55104 Re: Sclby Wines and Spinxts, Tnc. 7')8 Seibv Av�°.�nue Dpr Mr. Crowe: OFFICE OF L[{- ;E,INSPEC7tONS AND ��/�� EDNiRONMENr.,t_ PRO'fECndN Robex Kusle. Dlrum� �, � f" a E (�i —�I � 1 a IAWRY PROFESS/ON.4L BUILD.A'G 330 $ PetrrShest S�n 300 SmntPmrl. A!lnnuora SST02 2rlephonc 651-2669100 FacsY�ntta: 65L266�91 J4 We c�nnot process your application, dated qctober 7, t 998, foz an Off-Sale Liquor License at the rcferenced propercy. Acoording to Secrion 344A.412 Subd. 4(S� o£ the State of Minnesota I,cgisIative Code (copy cncioscd), "No license to sell into�cicatyng liquor may be issued within i fect of a state hospital, training schooi, refomatory, prison, or othtr institution uader t�o supervision ar contol, in whole or in part, of the coaunissionsr of human services. .". We have de�tsniaed that Daytoa Residence and Re-entry Services are within 1,000 feet of the subject properry. There is n9 pzavisian foz� a waiver of this separatzaa reqnirement in tlke Legislative Codc. 3iacc #ris location does not mcet the license resiriction fa sn off-sale liquor license, please submit a written withdtawal of your application and we will either return your $ 2,000.04 applieat�on #ee or apQiy it to anotkter application at a different location. If yau have any queseioa regarding this matter, please contact rne. If you find att altexnative locatiaa we can check it out to determine if the miaunum segaratirm requiremeats are met. :. i ,/ �1,I' / i/ •..� i�� _ . . • ., ;.e� _ .�„ �. . APPLICANT EXHIBIT 3 f ` � �E�}� /� i ' Minnesoca D aztmenL of Human 5ervices � ��...,.i23 ..;� = `:`, ��. ...,.. � : Apnl 9, t339 To whom it rrray+ ooncem: The Departmern of 1'luman Services has licensed the residential mental heaith treatme�rt prugram {onown as Daytnn Residence since .lune 1, 1983. The license !i � issued to Bostr�n Heatth Care S��stems, Inc. forth�s far.itity located at 7�10 Da;�t�n Avenue, SL Paul, MN 55104. 7he facility is currently licensed to serva 26 adult residenfs_ The Department of Human Services is responsible for monitoring the program fo comptiance with standards found in Minnesota Statutes, chapter 245A; Minnesot � Statutes, section 626.5bT; and Minnesot� Rules parts 9520.0510 to 9520.0670. �.ie licensing duties ofthe Department indude ro�stine licn:�rs�ng inspections, investig< ting complaints r�garding the program serviCes, and conducting nackground sto�dies �•� all staff who pmvide direct contact services to the people receiving senrices from th� program. The Qepartment af Human Setvices aiso provides funding for a significant portioi 'c�f the services provided. Board and lodging services are reimbursed through the Grau� . Resideniiat Housing Program, and the mental health treatment services are fund� rc through Ru1e 12 Menta! Health Grant Program. If yau have arry questions 8bout the licensing requirements, please call me at (6° �; 296-4473 Ssncerely. r�- � "-� Jesry K er, Dit�ectQr Division of Licsnsing APPLICANT'S EXHIBIT 4 44•f Zwfreyetta Rnad Nonb • Sa:n� Paxl. Minn�rom • SSI SS • An L•yual Opporn<niry Emyluyer OFFICE OF THE CITY ATTORNEY(�O��U� " C[ayton M Robinson. Jr., Ciry Attorney � Y � r"= I',' ^ —..�. : C'J CITY OF SAINT PAUL �� ;!_-! ^ �� ;rD;�;s�o., ...� .,v.: LC� ;.ii iu• Norm Coleman. Mayor (l0 Ciry Hal! Telephone: 657 266-87I0 "" '°P` �I�WestKeiloggB(vd Facsimiie:6S1298-i674 � � � � � � � � � � � � �'� � ' �'- Sain! Paul, Minnesota 55703 „�.-.'.I, : o � June 25, 1999 The Honorable George A. Beck Administrative Law Judge Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN. 55401 RE: In the Matter of the License Application of Vernon W. Crowe, dba Selby Wine and Spirits Dear Judge Beck: This letter will acknowledge receipt of the license applicanYs memorandum, and serve as a request for an extension of time to submit the City's reply memorandum. The initial briefing schedule called for the applicant to submit a memo by June 17,1999, with the City's reply due June 24,1999. Mr. Bottema did request and obtain a continuance until June 21 or 22"d, and T would therefore request that the City's reply deadline be extended to June 29, 1999. I spoke to Mr. Bottema and informed him that I would make this request and he had no objection. Thank you for your consideration in this matter. Sincerely, �/ ,�� Virgini Assistant City Attorney cc: Kenneth Bottema § 310.04 LEGISLATIVE CODE �� appeal shall be that there has been an error of law in the grant, issuance or renewal of the license. The appeal shall be in writing and shall set forth in particulaz the alleged errors of law. The council shall conduct a hearing on the appeal within thirty (30) days of the date of filing and shall notify the licensee and the appellant at least ten (10) days prior to the hearing date. The proce- dures set forth in section 310.05, insofaz as is practicable, shall apply to this hearing. Follawing the hearing, the council may affinu or remand the matter to the inspector or director, or may reverse or pIace conditions upon the license based on the council's determination that the decision was based on an error of law. The filing of an appeal shall not stay the issuance of the license. (fl Nc waiuer by renew¢l. The renewal of any license, whether Class I, II or III, shall not be deemed to be a waiver of any past violations or of any grounds for imposition of adverse action against such license. (Code 1956, § 510.04; Ord. No. 17455, § 1, 5-21-87; Ord. No. 17551, § 1, 4-19-88; C.F. No. 94-500, § 1, 7-6-94; C.F. No. 95-473, § 3, 5-31-95; C.F. No. 95-1517, 1-31-96; C.F. No. 97-1446, § 1, 12-30-97) Sec. 310.05. Hearing procedures. (a) Adverse ¢ction; notice ¢nd hearing require- ments. In any case where the council may or intends to consider any adverse action,including the revocation or suspension Qf a license, the imposition of conditions upon a license, or the denial of an application for the grant, issuance or renewal of a license, or the disapproval of a license issued by the State of Minnesota, the epplicant or licensee shall be given notice and an opportunity to be heazd as provided herein. The council may consider such adverse actions when recommended by the inspector, by the director, by the director of any executive department estab- lished pursuant to Chapter 9 of the Charter, by the city attorney or on its own initiative. (b) Notice. In each such case where adverse ar_tion is or will be considered by the council, the applicant or licensee shall have been notified in writing that adverse action may be taken against the license or application, and that he or she is entitled to a hearing before action is taken by the council. The notice shall be served or mailed a reasonable time before the hearing date, and shall state the place, date and time of the hearing. The notice shall state the issues involved or grounds upon which the adcerse action may be sought or based. The council may request that such written notice be prepared and served or mailed by the inspector or by the city attorney. (c) Hearing. Where there is no dispute as to the facts underlying the violation or as to the facts establishing mitigating or aggravating circum- stances, the hearing shall be held before the council. Otherwise the hearing shall be conducted before a hearing examiner appointed by the coun- cii or retained by contract with the city for that purpose. The applicant or the licensee shall be provided an opportunity to present evider_ce and azgument as well as meet adverse testimony or evidence by reasonable cross-examination and rebuttal evidence. The hearing examiner may in its discretion permit otherinterested persons the opportunity to present testimony or evidence or otherwise participate in such hearing. (c-1) Procedure; hz¢ring examiner. The hear- ing egaminer shall hear all evidence as may be presented on behalf of the city and the applicant or licensee, and shall present to the council writ- ten findings of fact and conclusions of law, to- gether with a recommendation for adverse action. The councii shall consider the evidence con- tained in the record, the hearing examiner's rec- ommended findings of fact and conclusions, and shall not consider any factual testimony not pre- viously submitted to and considered by the hear- ing examiner. After receipt of the hearing examiner's findings, conclusions, and recommen- dations, the council shall provide the applicant or licensee an opportunity to present oral or written arguments alleging error on the part of the exam- iner in the application of the law or interpretation of the facts, and to present azgument related to the recommended adverse action. Upon conclu- sion of that hearing, and after considering the record, the examiner's findings and recommenda- tions, together with such additional azguments presented at the hearing, the council shall deter- mine what, if any, adverse action shall be taken, which action shall be by resolution. The council Supp. No. 40 2028.4 �� LICENSES may accept, reject or modify the findicgs, conclu- sions and recommendations of the hearing esam- iner. (c-2) Ex p¢rte cont¢cts. If a license maiter has been scheduled for an adverse hearing, council members shall not discuss the license matter witn each other or with any of the parties or interested persons involved in the mat`�.er unless such dis- cussion occurs on the record during the hearings o£ the matter or during the council's final deliber- ations of the matter. No interested person shall, with knowiedge that a license matter has been scheduled for adverse hearing, convey or attempt to convey, orally or in writing, any information, argument or opinion about the matter, or any issue in the matter, to a council member or his or her staff untii the council has taken final action on the matter; provided, however, that nothing herein shall prevent an inquiry or communica- tions regazding status, scheduling or procedures concerning a license matter. An interested person, for the purpose of this paragraph, shall mean and include a person who is an officer or employee of the licensee which is the subject of the scheduled adverse hearing, or a person who has a financial interestin such licensee. (d) Licensee or ¢pplicant may be represented. The licensee or applicant may represent himself or choose to be represented by another. § 310.05 Supp. No. 40 2028.5 /� � � LICENSES (e) Record,• eoidence. The hearing examiner shall receive and keep a record of such proceedings, including testimony and exhibits, and shall re- ceive and give weight to evidence, including hear- say evidence, which possesses probative value com- monly accepted by reasonable and prudent persons in the conduct of their affairs. (fl Courzcil action, resolution to cont¢in find- ings. Where the council takes adverse action with respect to a license, licensee or applicant for a license, the resolution by which such action is tak- en shall contain its findings and determination, including the imposition of conditions, if any. The council may adopt all or part of the findings, con- clusions and recommendations of the hearing ex- aminer, and incorporate the same in its resolution taking the adverse action. (g) Addition¢l procedures where required. Where the provisions of any statute or ordinance require additional notice or hearing procedures, such pro- visions shall be complied with and shall super- sede inconsistent provisions of these chapters. This shall include, without limitation by reason of this specific reference, Miunesota Statutes, Chapter 364 and Minnesota Statutes, Section 340A.415. (h) Discretion to he¢r notwithst¢ndirzg with- dr¢w¢l or surrender of ¢pplication or license. The council may, at its discretion, conduct a hearing or direct that a hearing be held regarding revocation or denial of a license, notwithstanding that the applicant or licensee has attempted or purported to withdraw or surrender said license or applica- tion, if the attempted withdrawal or surrender took place after the applicant or licensee had been notified of the hearing and potential adverse ac- tion. (i) Continuances. Where a hearing for the pur- pose of considering revocation or suspension of a license or other disciplinary action involving a li- cense has heen scheduled before the council, a continuation of the hearing may be granted by the council president or by the council at the request of the licensee, license applicant, an interested person or an attorney representing the foregoing, upon a showina of good cause by the party making the request. § 310.05 (j) If the council imposes an adverse action as defined in section 310.01 above, a generic notice of such action shall be prepazed by the license in- spector and posted by the licensee so as to be vis- ible to the public during the effective period of the adverse action. The licensee shall be responsible for taldng reasonable steps to make sure the no- tice remains posted on the front door of the li- censed premises, and failure to take such reason- able precautions may be grounds for further adverse action. (k) Imposition of costs. The council may impose upon any licensee or license applicant some or all of the costs of a contested hearing before an inde- pendent hearing examiner. The costs of a contest- ed hearing include, but are not limited to, the cost of the admanistrative law judge or independent hearing examiner, stenographic and recording costs, copying costs, city staff and attomey time for which adequate records have been kept, rental of rooms and equipment necessary for the hear- ing, and the cost of expert witnesses. The council may impose all or part of such costs in any given case if (i) the position, claim or defense of the licensee or applicant was frivolous, azbitrary or capricious, made in bad faith, or made for the pur- pose of delay or hazassment; (u) the nature of the violation was serious, or involved violence or the threat of violence by the licensee or employees thereof, or involved the sale of drugs by the lic- ensee or employees thereo£, and/or the circum- stances under which the violation occurred were aggravated and serious; (iii) the violation created a serious danger to the public health, safety or welfare; (iv) the violation involved unreasonable risk of harm to vulnerable persons, or to persons for whose safety the licensee or applicant is or was responsible; (v) the applicant or licensee was sufficiently in control of the situation and there- fore could have reasonably avoided the violation, such as but not limited to, the nonpayment of a required fee or the failure to renew required in- surance policies; (vi) the violation is covered by the matrix in secfion 40926 0: the Legislative Code; or (vii) t}ie violation involved the sale of cigarettes to a minor. (1) Imposition of fines. The council may impose a fine upon any licensee or license applicant as an adverse license action. r: fine may be in such Supp. No. 30 2029 § aio.os amount as the council deems reasonable and ap- propriate, having in mind the regulatory and en- forcement purposes embodied in the particulaz li- censing ordinance. A fine may be in addition to or in lieu of other adverse action in the sole discre- tion of the council. To the extent any other provi- sion of the Legislative Code provides for the im- position of a fine, both provisions shall be read together to the estent possible; provided, howev- er, that in the case of any conflict or inconsistency, the other provision shall be controlling. (Code 1956, § 510.05; Ord. No. 17551, § 2, 4-19-88; Ord. No. 17559, §§ 1, 2, 5-17-88; Ord. No. 17659, § 1, 6-13-89; Ord. No. 17911, § 1, 3-10-92; C.F. No. 94-46, § 7, 2-2-94; C.F. No. 94-898, §§ 2, 3, 7-13-94; C.F. No. 94-1340, § 2, 10-19-94; C.F. No. 95-473, § 4, 5-31-95) Sec. 310.06. Revocation;suspension;adverse actions; imposition of condi- tions. (a) Council may take ¢duerse ¢ction. The coun- cil is authorized to take adverse action, as defined in section 310.01 above, against any or all licenses or permits, licensee or applicant for a license, as provided in and by these chapters. Adverse ac- tions against entertainment licenses issued under Chapter 411 of the Legislative Code may be initi- ated for the reasons set forth in subsection (b) below, or upon any lawful grounds which are com- municated to the license holder in writing prior to the hearing before the council. Such actions shall be initiated and carried out in accordance with the procedures outline in section 310.05; provid- ed, however, that the forntal notice of hearing shall be used to initiate the adverse action without the use of prior procedural steps. (b) B¢sis for action. Such adverse action may be based on one (1) or more of the following rea- sons, which are in addition to any other reason specifically provided by law or in these chapters: (1) The license or permit was procured by mis- representation of material facts, fraud, de- ceit or bad faith. (2) The applicant or one (1) acting in his or her behalf made oral or written misstatements or misrepresentations of material facts in or accompanying the application. LEGISLATIVE CODE qq-$i�e (3) The license was issued in violation of any oF the provisions of the Zoning Code, or the premises which aze licensed or which aze to be licensed do not comply with applicable health, housing, fire, zoning and building codes and regulations. (4) The license or permit was issued in viola- tion of law, without authority, or under a material mistake of fact. (5) The licensee or applicant has failed to com- ply with any condition set forth in the li- cense, or set forth in the resolution grant- ing or renewing the license. (6) a. The licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has violated, or performed'any act which is a violation of, any of the provisions of these chapters or of any statute, ordi- nance or regulation reasonably related to the licensed activity, regazdless of whether criminal chazges have or have not been brought in cannection there- with; b. The licensee or applicant has been con- victed of a crime that may disqualify said applicant from holding the license in question under the standards and procedures in Nlinnesota Statutes Chapter 364; or c. The licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has engaged in or permitted a pattern or practice of conduct of failure to comply with laws reasonably related to the li- censed activity or from which an infer- ence of lack of fitness or good character may be drawn. (7) The activities of the licensee in the licensed activity created or have created a serious danger to the public health, safety or wel- fare, or the licensee performs or has per- formed his or her work or activity in an unsafe manner. (8) The licensed business, or the �cay in which such business is operated, maintains or per- Supp. No. 30 2030 LICENSES mits conditions that unreasonably annoy, injure or endanger the safety, health, mor- als, comfort or repose of any considerable number of inembers of the public. (9) Failure to keep sidewalks or pedestrian ways reasonably free of snow and ice as required under Chapter 114 of the Saint Paul Leg- islative Code. (10) (11) The licensee or applicant has shown by past misconduct or unfair acts or dealings: phys- ical abuse, assaults or violent actions done to others, including, but not limited to, ac- tions meeting the definition of criminal sex- ual conduct pursuant to Minnesota Stat- utes Sections 609.342 through 609.3451; se�tual abuse, physical abuse or maltreat- ment of a child as defined in Minnesota Stat- utes Section 626.556, subdivisions 2 and 10e, including, but not limited to, acts which con- stitute a violation of Minnesota Statutes Sec- tions 609.02, subdivision 10; 609.321 through 609.3451; or 617246; neglect or en- dangerment of a child as defined in Minne- sota Statutes Section 626.557, subdivision 2; the manufacture, distribution, sale, gift, delivery, transportation, exchange or baz- ter of a controlled substance as defined in Minnesota Statutes Chapter 152; the pos- session of a controlled substance as defined in Minnesota Statutes Chapter 152 in such quantities or under circumstances giving rise to a reasonable inference that the pos- session was for the purpose of sale or dis- tribution to others; or by the abuse of alco- hol or other drugs, that such licensee or applicant is not a person of the good moral character or fitness required to engage in a licensed activity, business or profession. The licensee or applicant has materially changed or permitted a material change in the design, construction or configuration of the licensed premises without the prior ap- proval of the city council in the ease of Class III licenses, the director in the case of Class II licenses, and the inspector in the case of Class I licenses, or without first having ob- tained the proper building permits from the city. qa�� § 310.06 (12) The licensee or applicant has violated sec- tion 294.01 of the Legislative Code, or has made or attempted to make a prohibited eg parte contact with a council member as pro- vided in section 310.05(c-2) of the Legisla- tive Code. The terms "licensee" or "applicant" for the pur- pose of this section shall mean and include any person who has any interest, whether as a holder of more than five (5) percent of the stock of a cor- poration, as a partner, or otherwise, in the prem- ises or in the business or activity which are li- censed or proposed to be licensed. With respect to any license for activities entitled to the protectian of the First Amendment, notwith- standing the foregoing provisions, neither the lack of good moral character or fitness of the licensee or applicant nor the content of the protected speech or matter shall be the basis for adverse action against the license or application. (c) Imposition of re¢sorz¢ble conditiorzs ¢nd/or restrictions. When a reasonable basis is found to impose reasonable conditions and/or restrictions upon a license issued or held under these chap- ters, any one (1) or more such reasonable condi- tions and/or restrictions may be imposed upon such license for the purpose of promoting public health, safety and welfare, of advancing the public peace and the elimination of conditions or actions that constitute a nuisance or a detriment to the, peace- ful enjoyment of urban life, or promoting security and safety in nearby neighborhoods. Such reason- able conditions and/or restrictions may include or pertain to, but aze not limited to: Q) A limitation on the hours of operation of the licensed business or establishment, or on particular types of activities conducted in or on said business or establishment; (2) A limitation or restriction as to the location within the licensed business or establish- ment whose [sic) particular type of activi- ties may be conducted; (3) A limitation as to the means of ingress or egress from the licer.sed establishment or its pazkinn lot or immediately adjacent area; (4) Arequirement to pro��ide off-street parking in excess of other requirements o£ law; Supp. No. 30 20$1 § 310.06 LEGISLATIVE CODE � � � y� � � U `� (5) A limitation on the manner and means of advertising the operation or merchandise of the licensed establishment; (6) Any other reasonable condition or restric- tion limiting the operation of the licensed business or establishment to ensure that the business or establishment will harmo- nize with the chazacter of the azea in which it is located, or to prevent the development or continuation oF a nuisance. The inspector may impose such conditions on Class I licenses with the consent of the license holder, or may recommend the unposition of such conditions as an adverse action against the license or licens- es; the inspector has the same power with respect to Class II licenses. The council may impose such conditions on Class III licenses with the consent of the license holder, or upon any class of license as an adverse action against the license or licens- es following notice and hearing as may be re- quired. Such conditions may be imposed on a li- cense or licenses upon issuance or renewal thereof, or upon and as part of any adverse action against a license or licenses, including suspension. Con- ditions imposed on a license or licenses shall re- main on such licenses when renewed and shall continue thereafter until removed by the council in the case of conditions on Class III licenses or conditions imposed by adverse action, and by the inspector in the case of Class I and II licenses. (d) Standards for multiple license determin¢- tion. In any case in which the council is autho- rized to take adverse action against less than all of the licenses held by a licensee, or applied for by an applicant, the following standards may be used: (1) The nature and gravity of the grounds found by the council to exist upon which the ad- verse action would be based; (2) The policy and/or regulatory goals for the particular licenses involved, either as em- bodied in the Legislative Code or as found and determined by the council; (3) The interrelationship of the licenses and their relative importance to the overall busi- ness enterprise of the licensee or applicant; (4) The management practices of the licensee or applicant with respect to each of such licenses; (5) The eictent to which adverse action against less than all of the licenses or applications would result in difficulty in enforcing and monitoring the adverse action taken; (6) The hardship to the licensee or applicant that would be caused by applying adverse action to all licenses or applications; and (7) The hardship and/or danger to the public, or to the public health and welfaze, that would result from adverse action against less than all of the licenses or applications. (Code 1956, § 510.06; Ord. No.17584, § 1, 8-25-88; Ord. No. 17657, § 15, 6-8-89; Ord. No. 17659, § 2, 6-13-89; Ord. No. 17901, §§ 2, 3, 1-14-92; Ord. No. 17917, §§ 2, 3, 3-31-92; Ord. No. 17922, § 1, 428- 92; C.F. No. 94500, § 3, 7-6-94; C.F. No. 94-1340, § 3, 10-19-94; QE No. 95-473, § 5, 5-31-95) Sec. 310.07. Termination of licenses; surety bonds; insurance contracts. (a) Autom¢tic termination, reinst¢tement; re- sponsibility oflicensee. All licenses or permits which must, by the provisions of these chapters or other ordinances or laws, be accompanied by the filing and maintenance of insurance policies, deposits, guarantees, bonds or certifications shall automat- ically terminate on cancellation or withdrawal of said policies, deposits, bonds or certifications. No licensee may continue to operate or perform the licensed activity after such termination. The lic- ensee is liable and responsible for the filing and maintenance o£ such policies, deposits, guaran- tees, bonds or certifications as aze required in these chapters, and shall not be entitled to assert the acts or omissions of agents, brokers, employees, attomeys or any other persons as a defense or justification for failure to comply with such filing and maintenance requirements. In the event the licensee reinstates and files such policies, depos- its, bonds or certifications within thirty (30) days, the license is automatically reinstated on the same terms and conditions, and for the same period as originally issued. After thirty (30) days, the appli- cant must reapply for a renewal of his license as though it were an original application. (b) Bonds and insur¢nce requiremerzts: (1) Surety Companies: All surety bonds run- ning to the City of Saint Paul shall be writ- Supp. No. 30 2032 �d , i ► OFFICE OF ADMIlVISTRATIVE HEARINGS FOR TAE COUNCIL OF THE CITY OF SAINT PAUL In Re The Licenses Held By James Bailey, Inc. d/b/a Selby Wine & Spirits June 3, 1999 CITY'S PROPOSED EXHIBITS TO: Judge George A. Beck, Administrarive Law Judge, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401 The following constihxtes a list of the City's proposed e�iMts for the Administrative Hearing on June 3, 1999. Exhibit No. Exh. No. 1 Exh. No. 2 E�. No. 3 Description License Application submitted by Vernon W. Crowe for Liquor Off=Sale license, dated October 5, 1998 (4 pp.); Quarter section map of area (1 p.); Notice of Proposed Denial of License Application, dated Apri18, 1999, with Affidavit of Service (3 pp.); Exh. No. 4 Notice of Hearing, dated May 3, 1999, with �davit of Service (4 pp.). � �� Also attached please find courtesy copies of applicable St. Paul City ordinances: St. Paul Legislative Code § 310.05 St. Paul Legislative Code § 310.06 Miun. Stat. §340A.412 Respectfully submitted this 3rd day of June, 1999. �� G-�.N-�. Virguria D. mer Assistant City Attorney Office of The City Attorney 400 City Hall 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 (612)266-8710 . �;� �, . Type of License(s) being applied for: �� .L � � Company Name: _ c��G � v Capo+eti n / P If business is incotporate�d giv Doing Business As: � lb � Business Address: _ / /Y CLASS III LICENSE APPLICATION W/iS�� c3 J i L arenmhip/SoleProptietmh7p 7c of incorporation: ..�,,_ �_ �. . sc�enddR„ / Betwern what cross streets is the business located? Are the premises now occupied7 ___ V� What Type of Business7 Mail To Address: AYplicant I3ame and —> �� QQ�� CITY OF SAI�i IT PAUL offiu af L;�rns�. Inspec*+o� and En�iravmental Prote�tior. 350 R Pec SC Surc 300 Sm�[Puil.M'wimu SSI@ . (61�266909p (u�(612)S669I36 �o 3z � � � s� Z; Which side of the street� Home Address: _ �p �l'y �d,�.,�r�, I �lL�i .�` _ ••_•• G ' / tJJA . I� LflSt .w / TtiIC � Saeet Add�eae '- - • - � • - Ciry stnte Zip DateofBirth: �"/3'= PlaceofBirth: etlfS �� ? ��,7^�..L� i-iave you ever oeen convicted of any felony, crime or violation of any ciry ordinance othet than haffic? YES NO � Date of airest: Where? Charge: F- � � Conviction: Sentence: List the names and residences of three persons of good moral character, living within Ihe Twin Cities Metro Area, not related to the applicant or financially interested in the premises or business, who may be referred to as to the applicanYs character: N ADDRESS f PHONE oz-2 � � � / � /� `' `— J /��ST,�/L � — CP/Z Z — 7 _� . /. �,t.i�� C °.��fJ �. Z7�_S� {�� f.r l ,. !%� .. r- /i ,.� � . � s � °� /' r. �/ALT/� c;ry Business Phone: �'l //� List licenses which you cunently hold, formerfy heid, or may have an interest in: Have any oF the above nazned licenses ever been revoked? �.. `_ j'gg � NO If yes, list the dates and reasons for revocation: THIS APPLICATION IS SUBJECT TO REVIEW gy pUBLIC PLEASE TYPE OR PRIN"P IN INK Shect Addreas � City State Z[p / � Are you going to operate this business persona(ly7 � ygS NO If not, who will operate it7 Fint Name hLddle Initial (�feidrn) y� Dete of Hixth Home Addreas: Street Name C � n , S� �p PhoneN�he� � Y� S°�S �� a�gec or assistant in this business? YES ___�._ NO If the managec is not the same as the operator, please complete the following infotmation: Fint N�e M�ddle lnitial (Meidm) � Dem of Bi�th Homc Addreu: St+eet Name Please list your employment history for the previous five (5) year period: List all other officers of the corpora�ion: OFFICER TITLE HOME NAME (Office Held) ADDRESS � �� HOME PHONE State BUSINESS PHONE Phane Number DATE OF BIRTH If business is a partnership, please incl»de the following infoimation for each partner (use 8dditional pages if necessary): � �� _ Homc Addre+a: Shect Neme I�ame Home Ad. �uc.u: SCcc[ Nraac City Lmt DateofBirth S[eG: Zip PhoneK�mmber Lart DateofBirth State - Zip � Phone I�vmbet MINNESOTA TAX IDENTIFICATION NUMBER _ pursuant to the Laws of Minnesoty, 1984, Chaptet 502, Article 8, Section 2(270.72) (Lar Cle�ance; Issuance ofLicenses), ]icensing authorities are required to provide to the State oFMinnesota Commissioner oFRecenue, tfie Minnesota business tax identification number and the social security number of each liceose applicant U¢der the Mumesoty Govemment Data Practices Ac[ and the Federal privacy Act of 1974, we are required to advise you of the following regarding ihe use of the Minnesata Tar ldeniificatian Numher: - This information may be used to deny the issuance or renewal of your license in the event you owe Minnesota sales, employer's withholding or motor vehicle excise taaces; - Upon receiving this information, the licensing authority will supply it only to the Minnesota Depaztment of Revenue. However, under the Federal Exehange of Information Agreement, the Depart��t of Revenue may supply this information to the Internal Revenue Service. M�m�esota Ta7c IdenaficaGon Numbecs (Saies 8c Use Tex Number) may Ge obtained from t�e State of Minnesota, Business Records Department, 10 Rivet Park Plaza (612-296-6181), Social Security Number: City �_ OV � hIlddle Gtitid �y�� Minnesota Tax Identification Number: � 7 Z�Q� _ If a Minnesota Ta�c Iden[ification Number is not required for the businzss being oPerated, indicate so by placing an "X" in the box 4 • 1 � , aa'$ ��' CERTIFICATION OF WORKERS' COMPENSATION COVERAGE PURSUAN'I' TO MINNESOTA SiATUTE 176.182 I haeby certify that I, or my company, am in compliance with the warkers' compensation insurance coverage requirements of Minnesota Statute I76.I82, subdivision 2. I aLso imnderstand tfiat provisiou offalse info:malion in tfris cenification wnstitutes sufficient grounds for adverse action against all licenses held, includiag revocation and sus�ension of said licenses. Nazne of Insurance Company: �L�-L % ��/ �' . _l�,/✓C �L/fcs�s�s�� Policy Number: Coverage from to I have no employees covered under workers compeosation insurance (IIIITIALS) ANY FALSIFICATION OF ANSWERS GIVEN OR 1ViATERIAL SUB�IITTED WILL RESULT I�i i DENIAL OF THIS APPLICATION I hereby state that I have answered all of the preceding questions, and that the infoimation containzd herein is tiue and correct to the best of my 3�owizdge and belief. I hereby state fiuther tfiat I have reczived no money or other consideration, by way of Ioan, gift, contribucion, or othznvise, other ttian already disclosed in the application wtuch I herewith submitted I also understand this premise may be inspected by police, fue, health and other city officials at any and all times when the business is in operation. Signature (REQUIRED for all applications) We will acce�t paymeet by cash, check (made payable to City of Saint Pau� or credit card (M/C or Visa). Date IFPAYlNG BY CREDIT CARD PLEASE COMPLETE THE FOLLOWINC INFORMATION: � MasterCud � Visa EXPIRATIO i 1 DATE: � � � � Nazre ACCOUNL Ir'UMBER: � � � � � � � � � � � � � � � �i of Cazd for all '"Note: If this app;ication is Food/Liquor related, please contact a City of Saint Paul Health Inspector, Steve Olson (266-9139), to review plans. If azy suos[anuai cnanges to structure are anucipated, please contact a City of Saint Paul Plan Examiner at 266-9007 to apply Yor building permits. Ifthere are any changes to the puking lot, floor space, or for new operations, please contact a City of Saint Paul Zoning Inspector at 266-9008. All applications require the following documeats. Please attach these documents when submitting your application: I. A detailed descriplion of the design, location and squaze footage of the premises to be licenszd (site plan). The following data should be on the site plan (prefzrably on an 8 1/2" x 11" or 8 1/2" x 14" paper): - Nazne, address, and phone number. - The scale should be stated such as 1" = 20'. ^N should be indicated towud the top. - Placement of all peRinent features of the intzrior of the licensed facifity such as seating areas, kitchens, offices, repair area, parking, rest rooms, etc. - If a request is for an addition or expansion of the licensed faciliry, indicate both thz cu:rent area and the proposed e�pansion. 2. A copy of your lease agreement or proof of ownership of the property. SPECIk'IC LICENSE APPLICATIONS REQUIRE ADDTI'IOYAL INFORI�IATION. PLEASE SEE REVERSE FOR DETAII,S >>>> � r.` - _ If applying for, Cabaret aduk, please attach written proofthat each employee is at least 18 yeazs old. ConvenationlRap pador adult, please attach written proof that eacfi employee is at least 18 years old Entertainment, please ype�{y �� e, B or C license; obtain and attach signatures of approval from 90% ofyour neighbors withia 350 feet of the establishmen[ 'This 1�� m� be applied far in conjunclion with a Liquor, Wine, Malt On Sale or Rental/Dance Hall license_ Firearms, please auach a leVer with the following information: state if selling or only repairing, Federal Firearms License Number, type of Armed Services dischazge (Honorable, Generai, gad Conduct, Undesirable, Dishonorable, or no military secvice. (NOTE: Establishment must be commercially zoned) Game room, please provide the following information: name of machine and list price. (NpT'E_ A Pool Hall license is required if there aze any pool tables in the establishment) Health/Sports club adult, please attacfi wcitten proof that each employee is at least 18 years oid Liquor off/on �aie, refer to attached liquor appL+'catioa Lock opeaing seiyices, ple� a�h a��yll employces �w�� h�e y�� lephone nttmber) wfio will be doing the lock opening secvice; attach $10,000 Surety Bond. Massage ceater, please attach a detailed description of the services being provided Mazsage center adult, please attach µ.itten proof that each employee is at least 18 yeazs old Massage practihoner, please submitproof ofsVCCessfiil c of written and praclical e�cams from the City of Saint Paul authorized �xaminer'. iasurance certificate showing ;,overage of $1,000,000.00 eacfi generyl liabi(ity and prefessional liabi]iry with the Ciry of Sain[ P� n�med as an addi[ional insurecl, and a 30 day notice of cancellation; proof of affiliation &om a licensed City of Saint Paul therapeutic massage center or state liceased health facility . Motorcycle dealer, please include State of Minnesota Dealer Number. Nerv motor vehicte dealer, please iz;clud State of Minnesota Dealer Number. ` Parldng 1oUramp, Please include the numba ofPaclang spaces, and attach pians containing a gec�-ral de�criplion of the security provided at tfie IoUramp, a site plan showing driveways of the propo� lot and the le al descti tion of [he ro t(us re if no site plan is cucrently on file). Attach a cuver letter describing your plans to comply with the �� dqu��t necessazy only B Painting requirements. Pawnbmker, please attach $5,000.00 Surety Bond. Secon3 hand dealeo-motor vehide, please include State ofi�fiimesota Dealer Number. 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A : I ' I� �I Y`�', �l� _.� � I A1 On (z) �.��(n �' � i(h An) ��t o z'rzi s, ' � � 1 I � y . y � po. ( �, �) t ro I L'1 �(G) 4, � - .e �l`L .1 �__�_' � �1 - '�0.T _ W (M Cx) (v` ;v�(s.Tss' � � i (�is (m (et' a) � (e� s tv �(zs ,lu (z ze �ze; , .c. ,.. ,,.� o... � � 1� ,. �az h� �� l ti I '"r. � r�<, n�� I 'i i I ! � � � � p I6�O 18 19 20 21 �22 23 24 25 26 9 20 21 22� 3 24 25 26 27 28�2� 30� ° 16 {T l{8 19 •20��21 ,22' 24� 25'.26(27 28 29 30� r- . ' , X J �Z�' �d � ,�: ' �{�/�� !+ ��1�� : � ASHLAND J � � c � �.<� � T� T �' r.., -�-- - � - r-� �—r ' i I - ' - - Gf� ` � � ��' lsi: c �° J90 i 1 L �� r � � � i {'� '. ' . I i I I I I � • .I l I I � � I � I I 12 II �09 8 7�6 5I�4 3'2 15� 7'6 5 4 3 2i1,; :,15:�14 5 �, ul , (cc) (a) 2H (G W kn (ml W` (sa) � <s�: j tn � (�' (sn. (» y(x1 � .>�. � :ml I.as' �x'y ( m_L�� I °' 1"=� 1 P 3J �.` � �. a � �-zs � >U r.�� a.� h,� �, nn na h�i cwi m� ,�� c �� , «�?� �,o�: h�=r n<,; n �1bo�T�`�'_ , �_ _ Al--. —— is I� ., i � � I �' � �: � ` . < 20 21 22 23 24 25 26 27 28 29i3 '16 IB 19� 20i21�22i23 25 , �� ! Crowe d/b/a elby Wine & Spirits � ". . - i�{ _ � i �' City's Exh. No. 2 ...___E.tni i v _ ) � . �� .. , � CITY OF SAINT PAUL Norm Colemun, M¢yor Apri18, 1999 OFFICF OF Tf� CITY ATTORNEY /j ( Clayto�obiruon, ✓r., CiryAnomey �`�1 I� �� 1 Civrl Division 400 City Hall !S West Kellogg Blvd, Saint P¢ul, Minnesota SSIO2 Telephone: 651266-8710 Facsimile: 657 298-5619 NOTICE OF PROPOSED DENIAL OF LICENSE A,PPLICATION Mr. Vernon W. Crowe 650 Dayton Avenue Saint Pau1, MN 55104 RE: Application for off=sale liquor license by Selby Wine & Spirits, d/b/a Selby Wine & Spirits for the premises at 778 Selby Avenue Dear Mr. Crowe: The Directar of the Office of License, Inspections and Environxnental Protection has recommended denial of your off=sale liquor license application for the premises at 778 Se1by Avenue. The basis for the recommendafion is as follows: Minn. Stat. §340A.412, subd. 4(5) prohibits the issuance of an intosicating liquor license "within 1,00 feet of a state hospital, training school, reformatory, prison ar other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commission of corrections." The Dayton Residence, located at 740 Dayton Avenue, is licensed by the Department of Human Services and is located within 1,000 feet of your proposed location. Pursuant to Saint Paul Legislative Code §310.04 you aze entitled to a hearing before an administrative law judge if you dispute the underlying facts which form the basis for the denial of your license application. If you wish to have such a hearing, piease send me a letter indicating that you are contesting the facts. A hearing will be scheduled and you wili then be sent a Notice of Heazing with the time, date and place of the hearing, the name of the administrative law judge who will preside and a brief description of the procedures to be foilowed. You may aiso choose to withdraw your license application at this time, and if you wish to do so you must send that request in writing to the LIEP Office. �n r . �� Crowe d/b/a elby Wine & Spirits � City's Exh. No, 3 �age 2 • • Vernon Crowe C� l� Aprii 8, 1999 �q� � If I have not received a written request for a hearing by Apri123, 1999 I will assume that you aze not contesting the factual basis for the recommended denial of the license application. Please feel free to contact me if you have any questions regazding this matter. Sincerely, �� V irginia D. Palmer Assistant City Attorney cc: Robert Kessler, Director of LIEP Christine Rozek, Deputy Director of LIEP Summit-University Planning Council, 627 Selby Avenue, Saint Paul, 55104 � � w,. < < , , ' � STATE OF MINNESOTA ) ) sS. COUNTY OF RAMSEY u aa�$�'� AFFIDAVIT OF SBRVICE BY MAIL JOANNE G. CLEMENTS, being first duly sworn, deposes and says that on April 9, 1999, she served the attached NOTICE �F PROPOSED DENIAL OF LICENSE APPLICATION on the following named person by placing a true and correct copy thereof in an envelope addressed as follows: Mr. Vernon W. Crowe 650 Dayton Avenue St. Pau1, MN. 55104 (which is the last known address of said person) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 9th day�e€� April, 1999. � Notary 9 � E� Jan. I CITY OF SAINT PAUL Notm Coleman, Mayar �r May 3, 1999 OFFICE pP TAE C=Ty ATTORNBy Cluyton �binson, Jr., CiLy AKOrney ��] Q 1 � n "4`UF`� Civi[Division 400CrtyHa11 Telephanc 651266-8710 ISiYestXelloggBlvd Facsimile:651298-56Z9 Saint P¢u� Minnuot¢ SSIO2 NOTICE OF HEARING Mr. Vernon W. Crowe 650 Dayton Avenue Saint Pail, Minnesota 55104 RE: License application of Mr. Vemon W. Crowe d/b/a Selby Wine & Spirits for the premises located at 778 Selby Ave. in St. Paul Our File Number: G99-0154 Dear Mr. Harmon: Please take notice that a hearing will be held at the following time, date and place concerning the license application for the premises stated above: Date: Thursday, June 3,1999 Time: 9:30 a.m. Place: Ruom 40-A St. Paul City Hall 15 West Kellogg Boulevard Saint Paui, Minnesota 55102 The hearing wi11 be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: Name: George A. Beck O�ce of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN, 55401 Telephone: 612-341-7601 �� . . , � Crowe d/b/a elby Wine & Spirits _'i — City's Exh. No. 4 , The Council of the City of�aint Pau1 has the authority to provide fo�arings concerning lice /� �� premises and for adverse acrion against such licenses and applicafions, under Chapter 310, including sections 31Q.05 and 310.06, of the Saint Paui Legislative Code. In the case of licenses for intoxicaring and non-intoxicating liquor, authority is also conveyed by Mimiesota Statutes section 340A.415. Adverse action may inciude denial, revocarion, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action ao�st the license application submitted for the above premises as follows: ` Minn. Stat. §340A.412, subd. 4(5) prohibits the issuance of an intoaicating liquor license "within 1,000 feet of a state hospital, training school, reformatory, prison or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commission of corrections." The Dayton Residence, located at 740 Dayton Avenue, is license�by the Department of Human Services an� is located within 1,000 feet of your proposed location. The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrative Law Judge will have all parties identify themselves for the record. The City will then present its witnesses and evidence, each of whom the licensee or attorney may cross-examine. The licensee or their attomey may then offer in rebuttal any witnesses or evidence theY may wish to present, each of whom the City's attorney may cross-examine. The Admuustrative Law Judge may in addition hear relevant and materiai testimony from persons not presented as witnesses by either pariy 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 have substantial interest in the outcome of the proceeding. Concluding azguments may be made bY the parties. Following the hearing, the Judge wi11 prepare Findin�s of Fact, Conclusions of Law, and a specific recommendation far action to be taken by the City Council. 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 Minnesota Rules, part 1400.7000. If a stipulation or agreement can be reached as to the facts, that stipulation will be presented fo the Administrative Law Judge for incorporation into his or her recommendation for Council action. If the licensee or their representative fails to appeaz at the hearing, the licensee's ability to challenge the allegations will be forfeited and the aliegations against the licensee which have been stated eazlier in this nofice may be taken as true. If non-public data is received into evidence at the hearing, Notice of Hearing - Page 2 - it may become public u� objection is made and relief reques�under Minnesota Statutes, • ' Section 14.60, subdivisio �' � � 1 If you have any questions, you can call me at 266-8710. Very iruly yours, U� t�� ,�i�,.�.-„�.� Virginia D. Palmer Assistant City Attorney cc: Mr. Thomas D. Harmon, Wagner, Falconer & Judd, Ltd, 3500 IDS Center, Minneapolis, MN 55402 Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Community prgullZer Distriet 8, Summit-University Plauning Council, 627 Selby Ave., St. Paul, MN 55104 Notice of Hearing - Page 3 � , -. ---� STATE OF MINNESOTA ) ) ss. COUNPY OF RP.MSEY � . � �• 1 AFFZDAVIT OF SERVICE BY MAIL JOANNE G. CLEMENTS, being fir5t duly sworn, deposes and says that on May 3, 1999, she served the attached NOTICE OF HEARING on the following named person by placing a true and correct copy thereof in an envelope addressed as follows: Mr. Vernon W. Crowe 650 Dayton Avenue St. Paul, MN. 55104 (which is the last known address of said person) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 3rd d��f M�� 19�. PETER P. PANGBORN Notary n '�� '�� ; ��y 3�a ��,�\� srn� oF NmvrrESOra DEPARTMENT OF HUMAN SERVICES Human Services Building 444 Lafayette Road St Paul, M'innesota 55155-38 INSTRUCTIONAL BUlLETIN #88-16H T0: Chairperson, 8oard of County Cortmissioners Attention: �irector Chairperson: Human Services 8oard Attention: Director Institutions for Mental Diseases Attentio Director Medicai Assistance and tndividuals Residing i� I. II PURPOSE Eligibility for The purpose of this bulletin is to ciarify poticy for individuais residing in institutions for mental diseases (IMDs) and requesting Medical Assistance (MA) or General Assistance Medical Care (GAMC). In addition. this bulletin provides information about a new federal law and a list of IMDs in Minnesota. This bulietin is a follow-up to Instructional Bulletin #88-16A issued April 24, 1988 and shouid be read in conJunction Nith that builetin. BACKGROUND A person up to age 21 (or up to age 22 if the person has been in a Joint Commission Accreditation of Hospitals (JCAH) accredited psychiatric program continuously since prior to his/her 21st birthday) or a person age 65 or oider is e)fgible for MA 1f reslding in an IHD, provided that the person meets ali other eligibility criteria. A person between the ages of 21 and 65 is not eligible for MA if residing in an IMD. A. Institutions for Mental Diseases An IMO is defined as an institution primarily enqaged in providing diagnosis, treatment or care of persons with mental diseases, including medical attention, nursing care and related services. � n re e icense a p a i n .+ — Crowe d/b/a Selb Wine & Spirits City's �xh. No. $ � "2.� 1988 ti 0 �� ,�. � � ,� D� r -:. ;a `+. �, ,,. ;'-, ( :tic+. , - , .c ; �� ti, �:. ' o i` . ."' JN ` nstitutions for Mentai Di AN EQUAL OPPORNNITY EMPLGcnn INSTRUCTIONAL BUILETIN #88-16H November 23. 1988 Paae 2 Effective Ju}y 1. 1988, the Medicare Catastroohic Coverage Act of 1988 amended the Social Security Act (42 U.S.C. 1396d) to further define the term iMD as follows "The term 'institution for mental diseases' means a hoscitai. nursina faciiity, or other institution of more than 16 beds, that is orimarily engaged in oroviding diagnosis. treatment, or care of aersons with mentai diseases, including medical attention. nursing care. and related services." With this ciarified definition of an IMO. the Deoartment has reviewed institutions throuahout Minnesota. Foliowing is a list of institutions which have been determined to be IMDs. AH-GWAH-CH[NG NURS[NG HOME Ah-Gwah-Ching, MN 56430 ANDREW CpRE HOME l215 South 9th Street Minneaoolis. MN 55404 ANOKA METRO REGIONAL TREATMENT CENTER` 3300 4th Avenue North Anoka,�MN 55303 BANNOCH[E NURS[NG HOME 3515 2nd Avenue South Minneacolis. MN 55408 B[lL KELLY HOUSE 2544 Piilsbury Avenue South Minneacolis. MN 55404 BIRCHW000 CARE HOME 715 West 31st Street Minneaoolis, MN 55408 BRAINERD REGIONAL TREATMENT CENTER• 1777 Highway 18 East Brainerd, MN 56401 BRISTOL PLACE (Not inciuding Bristoi Place located at 202 Ridgewood Ave. So.) 400 Ridaewood Avenue South Minneaoolis. MN 55403 DAYTON BOARDING CARE HOME 740 Dayton Avenue St. Paui, MN 55104 EAGLE LAKE HOME Route 1. 8ox 65 Cromwell. MN 55726 INSTRUCTIONAL BULLETIN #88-16H November 23. l988 Paqe 3 EDEN HOUSE 1025 Portiand Avenue Minneapolis, MN 55404 EMERSON PLACE NORTH 2304 Emerson Avenue North Minneapolis, MN 55411 FAMILYSTYLE HOMES 398 Duke Street St. Paul. MN 55102 FERGUS FALLS REGIONAL TREATMENT CENTER• Mental Health Division Box 157 Fergus Falis, MN 56537 FRANKLIN P�ACE EAST 2100 Ist Avenue South Minneapolis, MN 55404 GRANO AVENUE REST HOME 3956 Grand Avenue South Minneapolis, MN 55409 GRANVILLE - JANE DICKMAN CENTER 1665 woodbury Drive Woodbury, MN 55043 GRANVILLE - TEAM CENTER 54 West Exchange Street St. Paul, MN 55102 GREEN IAKE MANOR 263 L.ake Avenue North Spicer, MN 56288 GUILD HALL 286 Marshail Avenue St. Paul, MN 55102 HAYES RESIDENCE I620 Randolph Avenue St. Paul, MN 55105 HEWITT HOUSE 1593 Hewitt Avenue St. Paui, MN 55104 HIGH POINT LODGE Route i, Box 346 Ciear Lake, MN 55319 ��.�ti�e INSTRUCTIONAI BUL�ETIN #88-16H November 23, 1988 Paae 4 HOIKKA HOUSE 238 Pleasant Avenue St. Paul, MN SSL02 HORISON WEST HEALTH CARE CENTER 1620 Oak Park Avenue North Minneapolis, MN 55411 JANUS: A WILLONS' TREATMENT RESIDENCE 8041 12th Avenue South 810t 12th Avenue South Bloomington, MN 55420 JOHNSON REST F�ME 516 2nd Street Southeast Fosston, MN 56542 MARCH HOUSE 3159 Park Avenue South Minneapolis, MN 55407 MINNESOTA SECURITY HOSPITAL !00 Freemah Drive St. Peter, MN 56Q82 MINNETONKA HEALTH CARE CENTER 20395 Summerville Road Excelsior, MN 55082 MISSION FARMS NURSING HOME 3401 Medicine Lake Boulevard Minneapolis. MN 55441 MERRITT HOUSE Box 470 BiWabik, MN 55708 MOOSE LAKE REGIONAL TREATMENT CENTER* IOQO Lakeshore Drive Moose Lake, MN 55767 NEW FOUNDATIONS 796 Capitoi Heights St. Paui, MN 55103 NORTHWESTERN APARTMENTS t00 Gretchen Lane Craokston, MN 56716 OAK GROVE CARE CENTER l31 Oak Grove Street . Minneapolis, MN 55403 INSTRUCTIONAL BULLETIN #BS-16H November 23. l988 Page 5 OAKLAND HOME 97 North Oxford St. Paul, MN 55104 OASIS 6739 Goiden Valiey Road Golden Valley, MN 55427 PARKSIDE HOMES, 8ox 348 Soudan, MN INC. 55782 PASSAGENAY 2708 Portiand Avenue South Minneapolis, MN 55407 P[LLSBURY BOARD AND CARE 2500 Pillsbury Avenue South kinneapolis, MN 55404 PINEVIEW RES[DENCE 69 North Milton St. Paul, MN 55104 QUARRY HIIL RESIOENTIAL TREATMENT CENTER 2t16 East Center Street Rochester. MN 55901 QUEEN NURS[NG HOME 300 Queen Avenue North Minneapolis, MN 55411 REENTRY HOUSE 5812 Lyndaie Avenue South Mtnneapolis, MN 55419 RIVERVIEN HOMES, INC. Star Route Brookston, MN 5571Z ST. IUKES' HOME 222 Ninth Avenue West Alexandria, MN 56308 ST. PETER REGIONAL TREATMENT CENTER• MI Units 100 Freeman Drive St. Peter, MN 56082 ST. WILLIAMS ANNEX Sao Street Parkers Prairie, MN 56361 ��,��e INSTRUCTIONAL BULLETIN #88 November 23, 1988 Page 6 SENTINEL HOUSE 2122 Portiand Avenue South Minneapolis, MN 55404 SOUTHSIDE CARE CENTER 2644 Aldrich Avenue North Minneapolis, MN 55408 STILlWA7ER RESIDENCE 220 West Olive Stiilwater, MN 55082 WELLSPRING THERAPEUTIC COMMUNITY 245 Clifton Avenue South Minneapolis, MN 55403 MtLLMAR HEALTH CARE CENTER/WORTHSIDE RESIOENCE`• 500 Russell Street Wilimar, MN 56201 WILLMAR REGIONAL TREATMENT CENTER' M[ Unit Box 1128 Nilimar, MN 56201 'Otilv the psychiatric hospital portion is considered an [MD; not the ICF/MR portion. ••Onlv the ICF-II beds are considered an IMD; not the SNF beds. III. LOCAL AGENCY ACTION A. MA Eliaibilitv for IMD Residenta An individuai who is cortmitted or voluntarily admitted to an IMD is considered to be a resident of that IMO (even if that individual is tenporari)y reteased from the !MD for the purpose of obtaining medical treatment) unless one of the foliowing conditions exist: a. The individual is on a conditional release. An individual sent hane for for a trial visit is considered to be on a conditional release. � b. The individual is on convalescent teave. An individual sent home to recover from an illness is considered to be on convalescent leave. c. The individual is discharqed or voluntarily discharges him/herself. An individual is considered dischar'ged only'if he/she would need to seek readmission throu4h normal procedures in order.to b'e acYnitted to the IMD at a later date. �a��' INSTRUCTIONAL Bl1Ll.ETIM #88-ibH November 23. 1988 Paae 7 An individual who resides in an IMD fs not eligible for MA uniess the individuai meets ali other MA eligibility criteria and one of the folioaing conditions exist: a. The individuai is under the age of 2t and resides in a JCAH accredited fac9lity. b. The individuai is under age 22 and has been in a JCAH accredited Psychiatric program continuously since prior to his/her 21st birthday. c. The individual is age 65 or over. d. The individuai is a participant in the MA Demonstration ProJect in Hennepin, Dakota, or Itasca County and has been placed in an IMD by the HMO/capitated payment contractor. An individuai who is not etigible for MA due solely to IMD residency must be terminated from MA with a t0-day advance notice as outiined by Instructional Bulletin #88-16A. B. GAMC Eli9ibititv for IMD Residents Beginning January 1, 1989, an individual who is terminated from MA, inciuding MSA recipients and AFDC recipients age 18 and older, due solely to his/her IMD residency may acpiy for GAMC. GAMC eligibility for this individual is determined using MA eligibility criteria (i.e., $3000/6000 asset limit rather than 51000 asset limit) excepting the IMD residency restriction. In short, GAMC eligibility is availabie to any individual who would be a MA recipient if he/she did not reside in an [M0. GAMC eligibility may exist for the individual untii the day prior to discharge (inclutling voluntary discharge), conditionai release, or convalescent leave. In these situattons, an individual may reappiy for MA because the individual is not considered to be an IMD resident and, therefore, cannot receive GAMC if he/she is eligible for MA. . C. MA Eitaibilitv for Individuals in a Consolidated Chemical Deaendencv Treatment Fund Provider Facilitv Effective July i, 1988, individuals receiving chemical dependency rehabilitative services aere eligible for MA if residing in a facility with a bed capacity of 16 beds or Iess, an acute care hospitai or their own home. [ndividuais under the age of 65 are not eligible for MA while residing in a residential setting of more than 16 beds, except for individuals under age 2t receiving inpatient psychiatric services as defi�ed in 42 CFR 440.160 and 42 CPR 441, subcart D. INSTRUCTIONAL BUILETiN #68-16H November 23, t988 Page 8 D. Notice of Action/Aoplication In cases where the local agency is terminati�g MA eligibitity (whether or not GAMC eligibility is being opened), a notice of the negative action and appeal rights must be given to an individual t0 days prior to the effective date of the notice. [n cases where the local agency is terminating GAMC eligibility and opening MA eligibility, an advance notice of the action is not necessary, because it is not a negative action. !n cases where the client's MA or GAMC eligibility is being terminated and the ciient wants to obtain eligibility for the other program, a new application must be filed With the local agency. E. Case Manaaement Services for Individuals with Serious and Persistent Mental Illness A seParate Instructional Builetin wiil be issued which Mill define case management for individuals with serious and persistent mental iilness. In brief, a MA recipient who is seriously and persistentiy mentally iii wiil be eligible for case management services effective January 1, 1989. A GAMC recipient will not be eligible for case ma�agement services uniess he/she is a resident of an IMD. F. IMD L9vina Arran9ement Cade For an appiicant/recipient who is an [MD resident, an IMD livinq arrengement code must be coded on the DHS-l06 forms. An A& C Memo with this code and the applicable instructions is forthcoming. The DHS-l06 forms must be coded accurately to alloa a GAMC recipient in an IMD to receive case management services and enhanced perinatal services, if appropriate. G. Revised Fu�dina Chart Attached to this bulletin is a chart Mhich indicates program eliglbiiity for MA, GAMC. Minnesota Supplemental Aid (MSA), and General Assistance (GA). In order to pay the negotiated rate for a General Assistance or Minnesota Supplemental Aid cifent, both.the GA and the MSA programs require that the county agency approves of the placement in the• facility or agrees that the client needs the care and services provided by the negotiated rate facility. [n addition, counties must observe exist9ng MSA and GA program instructions in establishing rates for these facilities. There are restrictions in state law �hich may prevent payment of the entire former rate using MSA or GA fu�ds. In these instances> the county may make additional payments from county funds, if it chooses to do so. The Department plans to approach the legislature with a request to revise these restrictions, but cannot predict the legislature's tNSTRUCTIOMAL BULLETIN #88-16H November 23, 1988 Page 9 IV. QUESTIONS qq � Questions from local agencies regardi�g this bulletin should be directed to: Income Maintenance Policy Center Program Administration Department of Human Services 444 Lafayette Road St. Paul. MN 55155-3834 Questions fran other parties should be directed to: Kathie Lindbtad Chariene Seavey Health Care Management Division Long Term Care Management Division Department of Human Services Department of Huma� Services 444 Lafayette Road 444 Lafayette Road St. Paul, MN 55155-3848 St. Paui, MN 55t55-3844 (6(2) 296-8818 (6t2) 296-6963 Sincerely. �'` ��i'r�u� �i�f:i� MARIA R. GOMEZ Assistant Commfissio�er - � �q,$� �e Revlsion 7/25/88 MA/GAMC Fundinq Service/Board and Room RTC/Community Piacement/CD/MI/MR (For persons who wouid otherwise be eligibie for MA) (GAMC recipients must meet GAMC eligibility income and asset requirements) (IHD definition excludes faciiities 16 beds or less Age: under 21 (up to 22 if Person in at 21st Age: 65 Resitles in birthdav) Aae• 21-64 and oider ICF/MR Bed [n RTC or Commun i tv Services: Eligibility: Own Nome Services: Eligibility: MA pays services � roan and board GA or MSA in canbination with other iflCOt118 pi'O vides for clothing and personal needs MA GA or MSA for shelter and basic needs CD: CD services through CDTF (MA/ FFP available) (other medical through MA) MA pays services 8 roan and board GA or MSA in combination wfth other income pro- vides for clothing and personal needs MA GA or MSA for sheiter and basic needs CD: CD services through CDTF (MA/ fFP available) (other medical through MA) MA pays services 8 roan and board MSA i n ca� i na- t3on with other income provides for clothing and Personai needs MA MSA for shelter 8 basic needs C0: CD services through COT� (MA/ FFP available) (other medicai through MA) MI: services th�ough MA MR: services through MA MA MI: services through MA MR: services through MA na SNf/ICF Level GA/MSA provides GA/MSA provides IMD not JCAH ciothing 8 PN ciothing 8 pN Accredited)_ ailowance ailowance MI: services through MA MR: services through MA na GA/MSA provides ciothing 8 PN ailowance -z- Services: CD: services 8 board 8 room through CDTF . (no fFP) C0: services 8 board 8 room through CDTf (no FFP) Eligibility: Psvchiatric Hospitai MI: no services MI: no services coverage avaitabie coverage available MR: no services MR: no services coverage availeble coverage available �ot eligibie MA rrot eligibie MA GA/MSA provides ciothing 8 PN aliowance Services: C0: room and board and services paid through CDTF/ MA FfP available MI: MA pays roan and board and services Eligibility: MI or CO Unit in Acute Care Hosaital MR: MA pays roan and board and services MA eligible GA/MSA provides clothing 8 PN allowance GA/MSA provides clothing 5 PN ailoaance CD: roan and board & services through COTF (no FFP) MI: services GAMC MR: services GAMC Not MA eligi6le GAMC eligibie GA/MSA provtdes clothing & PN ailowance' Services: CD: CDTF pays CD: COTF pays roan and board room and board 8 services (MA 8 services (MA FFP availabie) FFP availabie) MI: MA pays room and board and . services MI: MA pays room and board and services CD: services paid CDTF/MA pays room and board 8 other medical services (MA FFP avaitable? MI: MA pays services and roan and board MR: MA pays services and roan and board eligibla MA GA/MSA provides clothing 8 PN ailowance CD: services 8 room and board paid through CDTF (MA-FFP available) MI: MA pavs services and room and board MR: MA pays services and roan and board MA eitgible GA/MSA provides ciothing S PN ailowance CD: CDTF pays room and board 8 services (MA FFP available) Mi: MA pays roan and board and services Eligibility: SNF/ICF �evel IMD (JCAH Accredited) Services: Eligihility: MR: MA pays room and board and services MA eilgibie GA/NSA provides ciothing 8 PN ailowance CD:,COTF pays services (MA FFP available) MA pays roqn and board and other medical services M[: MA pays room and board and services MR: MA pays roan and board and services MA eligible JCAH Accredited IMD GA/MSA pays roan (not SNf/ICF) & board costs H( alfwav House/ (negotiated Rule 36 rates) & clothing & personal needs Services: Eligibility: CD: CDTF pays services (MA FFP available) and room and board (no FFP availabie) MA pays other medical services MI: MA pays services only MR: MA pays services only MA eligible - 3 - MR: MA pays room and board and services MA eligible GA/MSA provides clothing & PN allowance C0: CO services through CDTF (no FFP) outside medical services GAMC MI: outside medical services GAMC MR: outside medicai services GAMC Not MA eligible GA/MSA pays roan � board costs (negotiated rates) if not covered by CDTF 8 clothing 8 personal needs CD: services through CDTF (no FFP) GAMC pays other services MI: services through GAMC MR: services through GAMC Not MA eligible - GAMC eligible �i j ' MR: MA pays room and board and services MA eligibie GA/MSA provides clothing 8 PN allowance CD: CDTF pays CD services (FFP available) MA pays room and board and other medical services MI: MA pays room and board and services MR: MA pays roan a�d board and services MA eligible MSA pays room 8 board costs (negotiated rates) 8 ciothing 8 personai needs CD: CDTF pays services (MA fFP available) and room and board (no fFP available) MA pays other services M[: MA pays services oniv MR: MA pays services oniv MA eligibie M[ or CD Bed in RTC (JCAH Accredited) of 17 or more beds Services: Eligibility: MI or CD Freestandinq Residentiai Communitv Facilitv (Not JCAH ACCredited) more than 16 beds Services: GA/MSA provides clothing 8 PN aitowance CD: CDTF pays services S roan and board (MA FFP available) MA pays other services MI: MA pays services and roan and board MR: MA pays services and roan and board' MA eligible GA/MSA pays roan 8 board costs jf not covered by CDTF (negotiated rate) 8 clothing & pEi'sone l needs CD: COTF pays room 8 board CD services (no MA FFP availabie) - GAMC for medical services Mi: GAMC for medical services MR: GAMC for medical services :� GA/MSA provides clothing & PN aliowance CD: CDTf for room and board and in house services (no FFP) - GAMC for outside medical services MI: GAMC for outside medicai services MR: GAMC for outside medical services Not MA eligible - GAMC eligibie GA/MSA pavs roan 8 board costs if not covered by CDTF (negotiated rate) & ciothing 8 personal needs CD: COTF pays room 8 board CO services (no MA FFP available) - GAMC For medical services MI: GAMC for medical services MR: GAMC for medicai services Eligibility: Not MA etigible - Not MA eligible - GAMC eligible GAMC eiigible GA/MSA provides clothing & PN ailowance C0: CDTF pays services and room and board (MA FFP available) MA pays other medical services M1: MA pays services and roan and board MR: MA pays services and room and board MA eligible MSA pays room 8 board costs if not covered by CDTF (negotiated rate) 8 ciothing 8 perso�al needs C0: CDTF pays CD services (MA FFP available) 8 room and board MA pays medical services M(: MA pays services MR: MA pays services MA eligible MI or CD Free- Standinq Resid- entiat Communitv Facility not JCAH Accredited) 16 beds or less Eligibility: CD: CDTF pays room S board 8 CD ser- vices (MA FFP available on services) HA pays other medical services GA/MSA pays ciothing and personal needs MI: HA pays for medical services GA/MSA pays room and board (negoti- ated rate) and clothi�g and personai needs MA eligible -s- CD: COTF pavs room 8 board 8 CO ser- vices (MA FFP avaitable) MA pays other medi- cal services GA/MSA pays clothing and personai needs M[: MA pays for medicai services GA/MSA pays room and board (negoti- ated rate) and clothing and personal needs MA eilgible � � I CD: CDTF pays room 8 board & CD ser- vices (MA FFP avaitable) on services) MA pays other medicai services GA/MSA pays clothing and personal needs M[: MA pays for medical services GA/MSA pays room and board (negoti- ated rate7 and clothing and personal needs MA eligible § 340A.411 e LIQUOR ACT bowling ceaters. Section 5 of tlus amendment established the effective date of the amend- ment and retroactively validated bowling cen- ter on-sale licenses in effect on that date to their date of issuance. Iaws 1987, c. 152, art. 1, § 1 provides: Laws 2987, c. 5, § 3, authorized t[ie issuance lish d n�Ma nesota Statutes 986A is reen- of on-sale nonintoxicating liquor licenses to acted." Laws 1876, c. 8q § I. Iaws 3875, c. 112, § i. Laws IS70, c. 32. Gen.St1866, c. 16, § I. Laws 1866, c. 40, § 1. Pub.St.1858, c. 18, § 15. Iaws 1858, c. 74, § 1. Library References Intoxicating Liquors �44 et seq., 46, 101. C.J.S. Intoxicating Liquors §§ 90, 91, 138 to WESIT.AW Topic No. 223. 144. Notes of Decisions Club 2 � Grocery stores 3 � Milltary reservations �, riumber of llcenses , T '�� 1 ; ! would not be a prerequisite to granting of a proper license to an organization tliat would otherwise qualify. Op.Atry.Gen., 217f-2, June 16, 1967. If baseball committee was a bona fide club, 1. Number of llcenses license could be issued thereto. O At Gen., Counry boazd has authority to limit number z17-F-1, Mar. 19, 1953. p Ty of non-intoxicating malt liquor licenses to be issued, and resolution to issue no more licens- 3. Grocery stores es would be bar to consideration of any future applications for licensing until such time as On-sale license may not be issued to grocery such resolution waz rescinded. Op.Atty.Gen., stores. Op.Atty.Gen., 120, April 12, 1946; Op. 217-B-2, April 28, 1955. Atty.Gen., 217-B-5, May 29, 1945. City council had right to determine how many 3.2 beer off-sale licenses to grant. Op. 4. Military reservations Atty.Gen., 217-B-4, Feb. 7, 1449. License for sale of 3.2 beer is not required of 2. Club , a canteen operated as an adjunct or agency of A club house or other structure from which federal government. Op.Atty.Gen., 217-F-I, nonintoxicating malt liquor was to be sold June 3, 1948. 340A.412 License restrictions; intoxicating liquor licenses I, Subdivision 1. Repealed by Laws 1989, c. 49, § 8, � ' Subd. 2. InvestlgaHon of on-sale llcenses. (a) The city or county having ' jurisdiction over on-sale licenses to sell into�cating liquor shail on initiai �' application for an on-sale license or on application for a transfer of an e�sting license conduct a preliminary background and financial investigation of the applicant. The application must be in the form prescribed by the bureau of criminal apprehension and with any additional information as the governing body of the city or county having jurisdiction over the license requires. If the governing body of the city or county having jurisdiction determines or if the bureau of criminal apprehension on its own initiative determines that a comprehensive background and investigation of the appli- cant is necessary, the governing body may conduct the investigation itself or contract with the bureau of criminal apprehension for the investigation. In addition, an investigation may be required prior to renewal of an existing on-sale license when the governing body of the city or county deems it in the 94 LIQUOR ACT § 340A .412 t public interest. An investigation fee not to exceed $S00 shall be charged an } applicant by the city or county if the investigation is conducted within the state, or the actual cost not to exceed $10,000 if the investigation is required ouuide the state. S (b) No license may be issued, transferred, or renewed if the results of the � investigation show, to the satisfaction of the governing body, that issuance, i transfer, or renewal would not be in the public interest, Subd. 3. Limitations on issuance of llcenses to one person or place. (a) No more than one off-sale intoxicating liquor license may be directly or � indirectly issued to any one person or for any one place in each city or 3 county. (b) For the purpose of this subdivision, the term "interest": (1) includes any pecuniary interest in the ownership, operation, manage- ment, or profits of a retail liquor establishment, and a person who receives money from time to time directly or indirectly from a licensee, in the absence oE consideration and excluding gifts or donations, has a pecuniary interest in the retail license; and (2) does not include loans; rental agreements; open accounts or other obiigations held with or without security arising out of the ordinary and regular course of business of selling or leasing merchandise, fixtures, supplies to the establishment; an interest in a corporation owning or operating a hotel but having at least 150 or more rental units holding a liquor license in conjunction therewith; or ten percent or less interest in any other corporation holding a license. (c) In determining whether an "interesY' exists, the transaction must have been bona fide and the reasonable value of the goods and things received as consideration for a payment by the licensee and all other facts reasonably tending to prove or disprove the existence of a purposeful scheme or arrange- ment to evade the restrictions of this subdivision must be considered. Subd. 4. Licenses prohibited in certain areas. (a) No license to sell intoxicating liquor may be issued within the following areas: (1) where restricted against commercial use through zoning ordinances and other proceedings or legal processes regularly had for that purpose, except licenses may be issued to restaurants in areas which were restricted against commercial uses after the estab]ishment of the restaurant; (2) within the capitol or on the capitol grounds, except as provided under Laws 1983, chapter 259, section 9;' (3) on the state fairgrounds or at any place in a city of the first class within one-half mile of the fairgrounds, except as otherwise provided by charter; (4) on the campus of Minnesota or at any place the campus. provided that area that is not included provided by charter; the college of agriculture of the University of in a city of the first class within one-half mile of a city may issue one on-sale wine license in this in the area described in clause (3), except as � t '� � 95 § 340A.412 ��'`�� LIQUOR ACT (5) within 1,000 feet of a state hospital, training school, reformatory, prison, or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commissioner of corrections; (6) in a town or municipality in which a majority of votes at the last election at which the question of license was voted upon were not in favor of license under section 340A.416, or within one-half mile of any such town or municipality, except that intoxicating liquor manufactured within this radius may be sold to be consumed outside it; (7) at any place on the east side of the Mississippi River within one-tenth of a mile of the main building of the University of Minnesota unless the licensed establishment is on property owned or operated by a nonprofit corporation organized prior to January 1, 1940, for and by former students of the University of Minnesota; (8) within 1,500 feet of a state university, except only 1,200 feet from Winona and Southwest State University, provided that within 1,500 feet of St. Cloud State University one on-sale wine and two off-sale intoxicating liquor licenses may be issued, measured by a direct line from the nearest corner of the administration building to the main entrance of the licensed estabiish- ment except at Mankato State University the distance is measured from the front door of the student union of the Highland campus; and (9) within 1,500 feet of any public school that is not within a city. (b) The restrictions of this subdivision do not apply to a manufacturer or wholesaler of intoxicating liquor or to a drugstore or to a person who had a license originally issued lawfully prior to July 1, 1967. Subd. 5. Licenses in connection with premises of another. An intoacicat- ing liquor license may not be issued to a person in connection with the premises of another to whom a license could not be issued under the provisions of this chapter. This subdivision does not prevent the granting of a license to a proper lessee because the person has leased the premises of a minor, a noncitizen who is not a resident alien, or a person who has been convicted of a crime other than a violation of this chapter. Subd. 6. Off-sale licenses where nonintoxicating malt liquor is sold. An ofF-sale intoxicating liquor license may not be issued to a place where nonintoxicating malt liquor is sold for consumption on the premises. This subdivision does not apply to those places where both an on-sale and off-sale license or a combination license have been issued under section 340A.406. Subd. 7. Drugstores. No intoxicating liquor license may be issued to a person operating a drugstore unless the person has operated it for at least two yeazs or has purchased a drugstore that has been in continuous operation for two or more years. Subd. 8. Expiration date. All intolcicating liquor licenses issued by a county or a city, other than cities of the first class, must expire on the same date. Subd. 9. License transfer. A license may be transferred with ihe consent of the issuing authority, provided that a license issued to a location at a 96 1 ., qq' STATE OF MINNESOTA) ) ss COUNTY OF HENNEPII� AFFIDAVIT OF SERVICE BY U.S. MAIL CINDY A. RINGDAHI., being fust duly swom, hereby deposes and says that on the 13TH day of � 1999, at the City of Minneapolis, county and state aforemenrioned, she served the attached FINDINGS OF FACT, CONCLUSIONS AND RECOMn�NDATION; 1-2111-12199-3 by depositing in the United States maIl at said City of Minneapolis, a true and correct copy thereof, properly enveloped, with first class postage prepaid and addressed to the individuals named herein. VIRGINIA PALMER ASSISTANT CITY ATTORNEY 400 CITY HAI.L 15 W KELLOGG BLVD ST PAUL MN 55102 KENNETH M BOTTEMA, ESQ. 3001 HENNEPIN AVE S SUITE 309B MINNEAPOLIS MN 55408 FRED OWUSU, CITY CLERK 170 CITY HAI.L 15 WEST KELLOGG BLVD ST PAiTL MN 55102 Subscribed and sworn to before me( this �3�– day of ___\� L� �_ 1998. 7�f C� �`-�/✓L27c7�Ci Notary P} lic / . nnnn��,nnnnnnnnnnnnnnMnM.'NAM/NM• ` CINDY ETIENNE � < S �� NOTARY PUBLIC-MINNESOTA }�„ �� ANOKACOUNTY � My Comm. Expires Jan. 31, 2000 q yyyyyyyyyyVWWVWVVNi vVVWVVVVVW • �� i s 1-2111-12199-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY COUNCIL OF THE CITY OF SAINT PAUL In Re the License Application of Vernon W. Crowe, d/b/a Selby Wine & Spirits, for the Premises Located at 778 Selby Avenue in St. Paul FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION Administrative Law Judge George A. Beck, serving as a hearing examiner for the City of St. Paul, conducted a hearing in this matter beginning at 9:30 a.m. on Thursday, June 3, 1999, at the St. Paul City Hall. The record closed upon receipt of the final written memorandum on June 30, 1999. The Applicant, Vernon W. Crowe, was represented by Kenneth M. Bottema, Esq., 3001 Hennepin Avenue South, Suite 309B, Minneapolis, Minnesota 55408. The St. Paul Office of License Inspections and Environmental Protection (LIEP) was represented by Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102. NOTICE This Report is a recommendation, not a final decision. The St. Paul City Council will make the final decision after reviewing the record and may adopt, reject or modify these Findings of Fact, Conclusions and Recommendations. Under § 310.05(c-1) of the City's Legislative Code, the City Council will provide the Applicant the opportunity to present oral or written argument to the City Council before it takes final action. The parties should contact the St. Paul City Council to determine the procedure for presenting argument. STATEMENT OF ISSUE The issue in this case is whether or not the City of St. Paul should grant an off-sale liquor license to the Applicant for 778 Selby Avenue. Based upon the evidence and argument in the record, the Administrative Law Judge makes the following: q�-$�� FINDINGS OF FACT 1. Vernon W. Crowe submitted an application to the City dated October 5, 1998, for an off-sale liquor license at 778 Selby Avenue in St. Paul, doing business as Selby Wine & Spirits, Inc.' 2. The proposed location is approximately 340 feet from the Dayton Residence located at 340 Dayton Avenue? 3. The Dayton Residence is a residential treatment program for adults with mental iliness. It is licensed for 26 beds. It is 100 percent funded by the State of Minnesota. 4. The Dayton Residence is licensed by the Department of Human Services (DHS). DHS makes a site visit to the facility every two years to review its staff, procedures and services. The treatment for residents of Dayton Residence is funded through consolidated mental health grants which are allocated by DHS to Ramsey County. Room and board at the facility is funded through individual client grants. 5. The Dayton Residence is administered by a qualified person licensed by DHS. DHS personnel are not present day to day at the residence. The Department has authority to step in and supervise at the residence if necessary. 6. DHS classifies the Dayton Residence as an institution for mental diseases (IMD) which is defined under federal law to be "a hospital, nursing facility, or other institution and more than 16 b€ds, that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services." 4 7. The Dayton Residence is not a state hospital, training school, reformatory or prison. 8. On April 8, 1999, Mr. Crowe was issued a Notice of Proposed Denial of License Application. The sole grounds of the denial was that the proposed location for the off-sale liquor license was within 1,000 feet of the Dayton Residence. The notice advised Mr. Crowe that he was entitled to a hearing. ' EX. l. z EX. z. ' 42 U.S.C.1396d. ° Ex. 5. 5 Ex. 3. 7 q �'$��' 9. Mr. Crowe requested a hearing and a Notice of Hearing was issued on May 3, 1999, setting the hearing for June 3, 1999 6 10. Two members of the public testified at the hearing in support of the application. 11. LIEP had no other objections to this application apart from its proximity to the Dayton Residence. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. The St. Paul City Council and the Administrative Law Judge have authority to conduct this proceeding and to make Findings of Fact under Minnesota law and the St. Paul City Code.� 2. The City of St. Paul gave Mr. Crowe proper and timely notice of the hearing in this matter. 3. The burden of proof in this proceeding is upon the applicant. 4. Minn. Stat. § 340A.412, subd. 4(5), prohibits the issuance of an intoxicating liquor license: within 1,000 feet of a state hospital, training school, reformatory, prison or other institution under the supervision or control, in whole or in part, of the Commissioner of Human Services or the Commissioner of Corrections; 5. The applicant has demonstrated that the Dayton Residence is not an institution under the supervision or control of the Commissioner of Human Services. 6. The proposed location at 778 Selby Avenue is not in violation of Minn. Stat. § 340A.412, subd. 4(5). 7. The exhibits attached to the applicanYs brief are stricken from the record. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: 6 Ex. 4. ' St. Paul Legislative Code § 310.05-.06; Minn. Stat. § 14.55; Minn. Stat. § 340A.415. 3 q�'$�� RECOMMENDATION IT IS HEREBY RESPECTFULLY RECOMMENDED: that the City Council of the City of St. Paul approve the off-sale liquor license application of Vernon W. Crowe, d/b/a Selby Wine & Spirits. Dated this 13 day of July 1999. ,� ��l�._ GEORGE A. B K Administrative Law Judge Reported: Taped-no transcript prepared. MEMORANDUM The City of St. Paul disapproved the off sale liquor license application of Vernon W. Crowe based upon its good faith determination that the proposed location was within 1000 feet of an institution under the supervision or control of the Commissioner of Human Services, namely, the Dayton Residence. The Dayton Residence is a 26 bed residential treatment program located at 340 Dayton Avenue in St. Paul. It is licensed by the Department of Human Services which conducts site visits at the facility and funds the facility. This case presents a question of statutory interpretation, namely, whether a residential treatment program is an institution under the supervision or control of the Commissioner of Human Services, within themeaning of Minnesota liquor law. The objective of statutory interpretation is to ascertain and effectuate the intention of the legislature. The applicant must demonstrate that its proposed location at 778 Selby Avenue complies with the statute set out at Conclusion No. 4. He first asserts that the Dayton Residence is not an institution within the meaning of the statute. He points out that Minnesota law does not define the Dayton Residence as an institution but describes it as a"residential program". "institution" is not defined in Minnesota law. The City notes that words used in the statutes are to be interpreted according to their plain and ordinary meaning. It points out that one dictionary definition of institution includes "a public or private place for the care or confinement of inmates, esp. mental patients or other disabled or handicapped persons.' It is also defined as "a place for the care of persons who are destitute, 8 Cummings v. Koehnen, 556 N.W2 586, 589 (Minn. App 1996) 9 Minn. Stat. § 645.08(1) 10 Random House Dictionary of the English Language, (2" Ed. Unabridged 1987) 4 q��$�� disabled, and mentally ill." The City argues that the Dayton residence is a building used for the care of inentally ill adults and therefore falls within the dictionary definition of "institution". The City also cites case law from other jurisdictions that interprets the word "institution" . As the City acknowledges, however, that case law is necessarily specific to the statute being examined and does not provide much precedent for Minnesota liquor law. It does not appear that the legislative intent was to include residential facilities within the prohibition contained in Minn. Stat. § 340A.412, subd. 4(a)(5). At the hearing the City relied upon the federal definition contained in a regulation that classifies the Dayton Residence as an irtstitution for mental disease. That definition, however, was adopted for the implementation of federal law decisions, such as medical assistance funding, and has no particular applicability to Minnesota liquor law. The City also argues that because the word institution as used in the statute is not modified by words such as "similar" or "such", the question is not whether the other institutions are sufficiently like state hospitals, training schools, reformatories or prisons, but simply whether fhey are an insfitution of any kind. However, the legislature chose to specify "other" institutions rather than "every" institution. Furthermore, this argument ignores the legal principle of ejusdem generis, which is codified in Minnesota Statutes. This canon of construction provides that general words are construed to be restricted in their meaning by preceding particular words." For example, in a recent case the Minnesota Supreme Court had to decide whether a blood bank was included within the category of "a hospital, sanitarium, nursing home or other institution for the hospitalization or care of human beings." The Court noted that by listing hospitals, sanitariums and nursing homes before the more general "other institutions", the legislature indicated an attempt to include only those institutions which share common characteristics with the specific institutions listed. The word institution, therefore, cannot be interpreted without reference to the preceding particular words. State hospitals, training schools, reformatories or prisons are distinctly different from residential facilities commonly located throughout communities. The facilities cited are all places of confinement. Another dictionary definition of institution is "� place of confinement, as in a mental asylum". It seems likely that the legislature intended this prohibition to apply to institutions similar to those specifically named where inmates or patients are confined and separated from the community. The applicant also argues that the Dayton Residence is not under the supervision or control of the Commissioner of Human Services. He suggests " American Heritage College Dictionery (3` Ed. 1993) 12 Minn. Stat. § 645.08(3) 13 Kaiser v. Memorial Blood Center of Mpls., Inc. 486 N.W.2d 762 (Minn 1992) 14 486 N.W.2d at 766 15 American Heritage College Dictionary, (2° Ed., 1982) � aq�$��e that licensure is different from supervision or control. He cites a dictionary definition of supervise as "to have the charge and direction of; superintend." A dictionary definition of "control" defines it as "to exercise authoritative or dominating influence over; direct".�� He notes that department personnel testified that the department is responsible for monitorina the program and argues that this is not supervision or control. The City points out that the Department of Human Services conducts background investigations on staff, investigations of complaints, does site visits, adopts rules setting standards for the facility and has the authority to assume control of the program if necessary. It points out that the statute talks about supervision or control "in whole or in part" which implies something less than full management or staffing by the department. It notes that the statute could have specifically stated that it only applied to institutions owned, operated or staffed by the department, but does not do so. As noted above, words in statutes are to be construed according to their common and approved usage. The common dictionary definition suggests that the legislature intended that the commissioner have charge of the institution, or direct the institution, in order to bring it within this prohibition. The commissioner clearly supervises and controls state hospitals, for example. The departmenYs licensing and enforcement functions as described in this record do not rise to that level. Since the proximity of the Dayton Residence was the only objection presented by the City to this application, it is recommended that the City Council approve the application. The applicant submitted four exhibits attached to its post-hearing memorandum. The City objected to their inclusion in the record. Since these exhibits were not offered at the hearing and the City did not have an opportunity to review or object to the exhibits, they must be strickert from the record. � 16 American Heribge Dictionary (1999) ° American Heritage Dictionary (1999) 18 Minn. Stat. § 645.08(1) v CITY OF SAINT PAUL Norm Colemnn, Mayor _ _- � ' — �--' rn '�;�,�: - y �.�i ��QE �� .��t_ . .. . �� J May 3, 1999 OFFICB OF THE CITY ATTORNEY �� Clayton M. Robinson, Jr., City Attorney i Civi[Division 400 Gry HuI( IS West Kellogg Blvd Sa+nt Paul, Minnesot¢ 55102 Telephonc 6 572668710 Fncsimile: 65I 298-5619 NOTICE OF HEARING Mr. Vernon W. Crowe 650 Dayton Avenue Saint Pa11, Minnesota 55104 RE: License appiicafion of Mr. Vernon W. Crowe d/b/a Selby Wine & Spirits for the premises located at 778 Selby Ave. in St. Paul Our File Number: G99-0154 Dear Mr. Hannon: Please take notice that a hearing will be held at the following time, date and place conceming the license application for the premises stated above: Date: Thursday, June 3,1999 Time: 9:30 a.m. Place: Room 40-A St. Paul City Hall 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 The hearing will be presided over by an Administrarive Law Judge from the State of Minnesota Office of Administrative Hearings: Name: George A. Beck Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN, 55401 Telephone: 612-341-7601 � qq ,� �� The Council of the City of Saint Paui has the authority to provide for hearings concerning licensed premises and for adverse action against such licenses and applications, under Chapter 310, including sections 310.05 and 310.06, of the Saint Pau1 Legislative Code. In the case of licenses for intoxicating and non-into�cating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include denial, revocafion, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action against the license application submitted for the above premises as follows: Minn. Stat. §340A.412, subd. 4(5) prohibits the issuance of an intoxicating liquor license "within 1,000 feet of a state hospital, training school, reformatory, prison or other institution under the supervision or control, in whole or in part, of the commissioner of human services or the commission of corrections." The Daytan Residence, located at 740 Dayton Avenue, is Iicense by the Department of Human Services ans is located within 1,000 feet of your proposed location, The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrarive Law Judge will have a11 parties identify themselves for the record. The City will then present its witnesses and evidence, each of whom the Iicensee or attorney may cross-examine. The licensee or their attorney may then offer in rebuttal any witnesses or evidence they may wish to present, each of whom the City's attomey may cross-examine. The Administrative Law Judge may in addition hear relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants ofproperty located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding azguments may be made bY the parties. Following the hearing, the Judge will prepare Findings of Fact, Conclusions of Law, and a specific recoxnmendation for action to be taken by the City Council. 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 Minnesota Rules, part 1400.7000. 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 the licensee ar their representative fails to appeaz at the hearing, the licensee's ability to challenge the allegations will be forfeited and the allegations against the licensee which have baen stated earlier in this notice may be taken as true. If non-public data is received into evidence at the hearino, Notice of Hearing - Page 2 ,it may become public unless objection is znade and relief requested under Minnesota Statutes,� r � Section 14.60, subdivision 2. If you have any questions, you can cail me at 266-8710. Very truly yours, _�� Virginia D. Palmer Assistant City Attorney cc: Mr. Thomas D. Hannon, Wagner, Falconer & Judd, Ltd, 3500 IDS Center, Minneapolis, MN 55402 Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Community prganizer District 8, Summit-University Plamiing Council, 627 Selby Ave., St. Pau1, MN 55104 Notice of Hearing - Page 3