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99-989ORIGI�IAL Presented By Refened To RESOLUTION Council File # �( �- Q s'� Green Sheet # �r.� c�7 \1 Committee: Date 1 WI�REAS, the City of Saint Paul, Office of License, Inspections and 2 Environmental Protection (LIEP) initiated adverse action against the license of Mohammed 3 Abedi, d!b!a Import Auto Enterprises, Inc., and Mostafa Farzaneh Kia, dJbJa MFK Enterprises, 4 Inc., 830 South Robert Street, for violations of the conditions on the licenses; and 6 WHEREAS, an administrative hearing was held before Administrative Law Judge Phyllis 7 A. Reha on April 13, 1999 and June 22, 1999; and 9 WHEREAS, the administrative law judge issued her Findings of Fact, Conclusions of 10 Law and Recommendation on August 23, 1949; and 11 12 WfiEREA5, at the public hearing on September 22, 1999 the licensees did not appeaz nor 13 did they file exceptions to the Administrative Law Judge's Report; now therefore, be it 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 RESOLVED, that the Council of the City of Saint Paul, after due deliberation based upon all of the files, records and proceedings herein, including the documents and e�ibits submitted to the Administrative Law Judge, the Findings, Conclusions and Recommendarion of the judge as well as the Memorandum attached thereto, and such azguments as may have been made at the hearing, imposes the following adverse acfion against the second hand motor vehicle licenses held by Mohaunned Abedi, dfbla Import Auto Enterprises, Inc., and Mostafa Farzaneh Kia, dJbla MFK Enterprises, Inc., for the premises at 830 South Robert Street: 1) The licenses shall be suspended for a period of thirty days effective at 12:01 a.m.on November 3, 1999 and continuing until 11:59 p.m. on December 2, 1999, or in the alternative, the licensees shall pay a fine of $2,000, which fine shall be due on or before October 26, 1999. 2) An additional thirty day suspension shall be imposed, which suspension is hereby stayed for a period of eighteen (18) months on the condition that thexe be no further violations of the license conditions or violations of law during that period. 3) The condition on each of the licenses that pernuts the display of 40 cazs on the premises shall be amended to permit the display of no more than 20 vehicles for sa1e. —� 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 FURTHER RESOLVED, that in the event there is a violation of the conditions of the licenses, or of law, within the nea�t eighteen months, the stayed 30 day suspension will be �1 q' �� ixnposed upon the licensees using the following procedure: 1) The director of LIEP or his designee will execute an affidavit reciting on personal laiowledge the violation or violafions of the condirions of the licenses or of the law; and 2) Such aff davit shall be served on fl�e licensee; and 3) A resolution nnposing the stayed thirty days, specifying the beginning and ending dates of such suspension sha11 be prepared by LIEP, and the council sl�all place it on the neart available consent agenda for appropriate action; and 4) A copy of the resolution shall be served on the licensees. FURTHER RESOLVED, that the Findings of Fact and Conclusions of Law of the Administrative Law Judge shall be adopted and shall be attached and incorporated herein, by reference. A copy of this Resolution, as adopted, shall be sent by first class mail to the Licensees, their attorney and to the Administrarive Law Judge. ORIGINAL Requested by Department of: By: By: Appx By: Form Appsoved y City Attorn . By: G� ��+t � Approved by Mayor £or Submission to Council By: Adopted by Council: Date � ��_ �.Z ��°` \ Adoption Certified by Council Secretary City Virginia Palmer 9/29/99 � � TOTAL # OF SIGNATURE PAGES GREEN SHEET °(`f -°�F�� No 1�Jt�?�1 � �.,R,.��,� � ��.. _ ❑ �.,.� ❑ �«� _ ❑..�..�.�.. ❑..�,�,.a.a ❑w,�.�.»�.µ., ❑ (CL{P ALL LOCATIONS FOR SIGNATURE) Finalizing City Council action taken September 22, 1999: concerning adverse action against licenses held by Mohammad Abedi, dba Import Auto Enterprises, S30 Robert Street AI. PLANNING COMMISSION CIB COMMI7TEE CIVIL SERVICE COMMISSION Has tnie veraoiwm, ever waMea wwer a CaNa�t ta mis department? YES NO Has this oewrnrfirm ever been a aYV omPbvee� YES NO Dces ih(s pereorilfi�m p�c a slGl na �qrmalypoesessed by any ammt tlty empbyce? YE3 !10 k Mis P�rm a tarpefetl ventlof! YES NO AMOUNT OF TRANSACTION 1 COtT/REVENUE BUOfiETEA {CIRCLE ON� YES NO FUND1916 SOURCE FINANCULL MFORMATON (IXPWf� ACTIYtTY NURIBER OFFICE OF THE CITY ATTORNEY Claytan M. Rabinron, Jr., City At�orney �0 CITY OF SEIINT PAUL Norm Cofeman, Mayar Civi! Divisron 400 Ciry Ha[! IS !3'est KelloggBlvd. Saint Paul, ,Ltinnesota 55/02 Telephone: 651266-87! 0 Facsimi(e: 657 298-5619 September 8, 1999 NOTICE OF COUNCIL HEARING Mr. Bemard J. Robichaud Robichaud & Nepp 402 Towle Building 330 Second Avenue South Minneapolis, Minnesota 55401 -- 1 1 ' �� l RE: In the matter of the licenses held by Mohammad Abedi d/6/a Import Auto Entexprises, Inc. and Mostafa Farzaueh Kia d/b/a MFK Enterprises, Inc. For the premises located at 830 Robert St. N. in St. Paul License ID No.s: 19970000049 and 57957 Our File Number: G99-0058 Dear Mr. Robichaud: Please take notice that a hearing on the report of the Admisustrative Law Jud�e conceming the above-mentioned license has been scheduled for 5:30 p.m:, Wednesday, September 22, 1999, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opportunity 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 Heazing. No new evidence will be received or testimony taken at this heazing. The Council wi11 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, `��u,t,c� (.�. ��o�C �-t Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Community Organizer, West Side Citizens Organi2ation,127 �Vinifred St. W., St. Paul, MN 55107 9-2111-12117-3 STATE OF MINNESOTA - �� OFFICE OF ADMINISTRATlVE HEARINGS FOR THE C1TY OF ST. PAUL {n the Matfer of the Second Hand Motor FiNDiNGS OF FACT. Dealer Licenses of Mohammed Abedi, CONCLUSlONS OF LAW d1b/a Import Auto Enterprises, 1nc. and AND RECOMMENDATION Mostafa Farzaneh Kia, d!b(a MFK Enterprises, Inc. The above-entitfed matter came on for hearing before Administrative Law Judge Phyllis A. Reha on April 13, 1999, at 9:30 a.m. in Room 41, St. Pau{ City Hali, 15 West Kellogg Boulevard, St. Paul, Minnesota. The hearing was continued and conciuded on June 22, 1999 at the same location. Virginia D. Palmer, Assistant St. Paul City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paui, Minnesota, appeared on behalf of the City of St. Pauf ("City"). The Licensees Mohammed Abedi, owner of Import Auto Enterprises, Inc. and Mostafa Farzaneh Kia, owner of MFK Enterprises, lnc. appeared on their own behalf without counse{ at the April 13, 1999 hearing. Bernard J. Robichaud, Jr., Attorney at Law, 402 Towle Building, 330 Second Avenue South, Minneapolis, MN 55401, appeared representing both Licensees at the hearing on June 22, 1999. The hearing record closed on July 23, 1999 upon receipt of the City's Reply Memorandum. NOTICE This Report is a recommendation, not a final decision. The City Council will make the final decision in this matter, after its review of the record. The City Council may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendation contained herein. Pursuant to § 310.05 of the St. Paul Legislative Code, the City Council will afford the Licensees an opportunity to present oral or written arguments to it prior to taking final action. The Licensees should contact Virginia Palmer to determine the procedures for fifing such argument or appearing befiore the City Council. STATEMENT OF ISSUE The issues in the proceeding are whether the Licensees violated the conditions of their Second Hand Motor Vehicle Dealer Licenses by: 1. Failing to comply with any of the express conditions placed upon their iicenses; or 2. Fai�ing to comply with other City ordinances reasonably related to the ficenses; and ��-�� 3. Whether the City Councif can take adverse action for such violations pursuant to St. Paul Legislative Code _ §310.06(a) and (b). : r Based upon all of the proceedings herein, the Adminisfrafive Law .ludge makes the following: FINDINGS OF FACT 1. Mohammed Abedi and Mostafa Farzaneh Kia own Import Auto Enterprises ("{mport Auto") and MFK Enterprises, Inc. ("MFK"), respectively. Import Auto and MFK are both locafed on premises at 830 South Robert Street, St. Paul, Minnesota. (Hereinafter referred to as "the Premises"). 2. Mr. Abedi and Mr. Kia are in the business of selling second hand vehicles at the Premises. 3. Mr. Kia d/b/a MFK holds Second Hand Motor Vehicle Dealer License No. 0057957 to do business at the Premises.� f�1r. Abedi d/b/a Import Auto holds Second Hand Motor Vehicle Dealer License No. 19970000049 to do business af the Premises Z 4. The Premises occupies a rectanguiar area at the southeast corner of the intersection of South Robert Street and Winona Avenue in the City of St. Paul. A single building, design�d originally as a service station, is located in about the center of the Premises. The building has two bays that may be used to repair vehicles. The remainder of the Premises consists of open ground suitable for parking vehicles. The open ground is used primariVy to dispfay Licensees' vehicles that are for sale. In December, 1997, the Premises had two driveway accesses onto South Robert Street and two onto Winona Avenue. 5. The Premises has been a long time source of complaints from neighboring residents. Complaints were received by the Office of License, Inspections and Environmental Protection ("LIEP") when the Premises was owned by previous licensed second hand vehicfe dealers. The primary complaints were: (1) "For sale" vehicles were on the public boulevard between the curb of �nona Avenue and the Premises; (2) "For sale" vehicles were parked on Robert Street and Winona Avenue; (3) vehicies (presumably those of customers) were parked on Winona Avenue so as to block private driveways; and (4) an excessive number of vehicles were on and near the Premises, resulting in traffic congestion. 6. The LIEP reviews license applications, and issues and enforces City licenses. Lawrence Zangs and Margaret Fuller are zoning specialists empfoyed by LiEP. 7. On September 27, 1995, Mr. Kia on behalf of MFK filed an appiication for a new Second Hand Motor Vehicle Dealer License to sell second ' City Exhibit No. 1. Z City Exhibit No. 3. 3 Transcript pages 18-19. 2 ��-�� hand vehicles at the Premises 4 Shortly thereafter in 1995, LIEP issued a Second Hand Motor Vehicle Dealer License to Mr. Kia d/b/a MFK fo seli second hand vehicles at the Premises 5 .. 8. In late 1997, Mr. Abedi d/b/a Import Auto appiied for a separafe Second Hand Motor Vehicle Dealer License to sell second hand vehicles at the Premises. Mr. Zangs considered it unusual for iwo second hand motor vehicle dealer businesses to operate at the same site. Mr. Zangs was particularly concerned about the potential for an excessive number of vehicles on the Premises resulting from the concurrent operation of two motor vehicle businesses at the same location � 9. In December, 1997, Mr. Zangs twice visited the Premises as part of reviewing Mr. Abedi's license application. Mr. Zangs in early December observed "For sale" vehicles parked on the public boulevard between the curb of Winona Avenue and the Premises. At this time there was not an express condition prohibiting this practice placed on Mr. Kia's license. Mr. Zangs visited the Premises again later in December of 1997. Based on his observations of the Premises, Mr. Zangs proposed a set of license conditions to which both Licensees at that Premises must abide. Mr. Zangs' primary purpose in imposing the license conditions was to contain Licensees' vehicles on the Premises, thus mitigating the impact of Licensees' business activity on the surrounding community, especially those activities associated with prior citizen complaints. Mr. Zangs believed that his restrictions would accomplish that purpose. 10. In conjunction with the express conditions, Mr. Zangs prepared a "site plan." The site pian is a scale drawing of the Premises depicting the location of the building, the driveway accesses, and the dimensions of the Premises. The site plan further iffustrated the meaning of the express conditions. 11. On January 2, 1998, Mr. Zangs met with Mr. Abedi and Mr. Kia and explained to them the proposed conditions set fcrth in the January 2, 1998 ietters addressed to Licensees. Identical letters were sent to Mr. Kia and to Mr. Abedi.�� Pursuant to their discussion, three changes to the proposed conditions were made by deleting certain words. Deletions were denoted by lining out the words to be deleted. Mr. Zangs, Mr. Kia and Mr. Abedi approved each change by signing their initials next to each change. Mr. Kia and Mr. Abedi indicated their acceptance of the amended license conditions by signing their respective letters on January 2, 1998. ° City Exhibit No. 1. 5 7ranscript page 17. 6 Trenscript page 17. ' Transcript page 19. $ City Exhibit A-C. 9 Transcript pages 19-20. 10 City Exhibit 5. " City Exhibits 2 and 4. iz Id. 3 � -�t�� 12. Mr. Zangs, Mr. Kia and Mr. Abedi agreed that the following four express conditions be placed on the Second Hand Motor Vehicle Dea{er Licenses of both MFK and Import Auto: 1. The number of vehicles on the lot at any one time be limited to 40. 2. A drive lane shall be maintained open for through vehicle access as shown on the site pian. 3. The easterly drive on Winona Avenue must be removed and restored with curb and gutter to City specifications. The driveway removal and restoration work must be done by September 1, 1998 with a permit from the St. Paul Public Works Division. 4. Vehicles shall not project into or be parked in the public rights-of-way on Robert Street and Winona Avenue. A post and chain barrier or similar vehicle restraint device must be installed along the property line on Winona to prevent encroachment into the public area.� 13. The first, second and fourth license conditions expressly referred to the site pian to clarify the meaning of the language. 14. The 4etters of January 2, 1998 did not specify that violation of these conditions would result in adverse action against license. 15. On Januar�r 2, 1998, Mr. Zangs approved the accompanying "site plan" for the Premises.' The site plan: 1) delineated by dash lines five specific areas on the Premises where vehicles could be parked; 2) specified the maximum number of vehicies to be parked in each area; 3) delineated an area on the Premises in which "through access" from Robert Street and Winona Avenue must be maintained by proh+bit+ng the parking of vehicles in that area; 4) stated that vehicies may not be parked in the northerly access drive onfo Robert Street; 5) stated that parking on the public boulevard between Winona Avenue and the property line of the Premises was prohibited; 6) specified fhat the westerly drive access onto Winona Avenue be removed and replaced wifh curb and gutter; 7) showed where a barrier to cieariy mark the Premises from the public boulevard was to be instailed. Mr. Zangs approved the pfan by signing his initiais upon it. 16. The first, second and fourth express conditions specifically refer to the site plan described in F'inding 15 above. The letter signed by Licensees also refers to the site plan. 17. The specific parking areas were based on Mr. Zangs' judgment of where vehicies could be parked. The number of cars permitted in each area was based on its physicaf dimensions. The main purpose for maintaining the through �4 City Exhibit 2, 4; see attached site plan for parking layout acceptable to the City. City Exhibit 2, 4; see site plan for location. 75 City exhibit 2, 4. 76 City exhibit 5. i� r a '�� access was to minimize traffic hazards. The through access was designed to provide room to maneuver vehicles on the Premises so that vehicles need not back out onto the City streets. The purpose of closing the easterly driv��on Winona was to remove the commercial access to the Premises away from�the adjoining residenfial area. The purpose of the chain barrier was to clearly demarcate the boundary between the Premises and the public area, thereby cleariy showing where Licensees' vehicles couid and could not be parked. This last condition specificaily addressed the past problems of vehicles being parked on the public boulevard of Winona Avenue." 18. The site plan did not expressiy prohibit the parking of Licensees "For sale" vehicles on Winona Avenue or Robert Street. Mr. Zangs intended that there be no parking of "For sale" vehicles on Winona Avenue or Robert Street. Mr. Zangs believed that the public right-of-way includes the area occupied by the public street plus the area extending from the street curb to the private property line; the license condition specifying no parking on the public right-of-way included prohibiting parking of "For sale" vehicies on Winona Avenue or Robert Street.' 19. The letters dated January 2, 1998 containing the specified conditions advised Licensees of past complaints received by LIEP regarding vehicles being parked on the pubiic boulevard on Winona Avenue. 20. On or around February 11, 1998, LIEP granted a Second Hand Motor Vehicie Dealer License to Mr. Abedi d!b/a import Auto. 21. Following the imposition of the express conditions on Licensees' licenses, LIEP received additional complaints concerning Licensees' business premises. The complaints were (1) that Licensees' "For sale" vehicles were parked on the public right-of-way; (2) that there was unauthorized repair of vehicles on the Premises; and (3) that they were an excessive number of vehicles on the Premises. 22. In response to these complaints, City Zoning Inspector Margaret Fuiler visited the Premises on September 17, 1998. She observed that: (1) the northerly access to Robert Street was completely obstructed by Licensees' vehicles; (2) a vehicle was parked in the pub{ic boulevard between Winona Avenue and the Premises (in the location illustrated by City exhibit 7d); (3) a person appeared to be doing repairs on a vehicle inside the building; (4) an engine and other junk parts were strewn about the open ground south of the buiiding; (5) a"junk" vehicle containing parts and supplies was parked on the Premises east of the building (in the "six car area"); (6) the ground northeast of the building was messy and contained junk vehicles. Ms. Fuller did not record any observations regarding the easterly drive onto Winona Avenue? " Transcript pages 27-31. M1B Transcript pages 30-31. t9 City Exhibits 2 and 4. 20 Transcript page 17; City Exhibit 3. 21 Transcript page 32. 22 Transcript page 77-80. 4'1 � � � / i 23. On September 17, 1998, Ms. Fuller informed Mr. Abedi that storage of vehicie parts outside on the ground was prohibited by B-2 Zoning District Ordinance. Since the Premises is in a B-2 Zoning District, Licensees were t#�us in violation of the storage ordinance. Ms. Fuller explained to Mr. Abedi that even though zoning code requirements are not an express condition of his license, he must comply with zoning codes as weil. 24. Ms. Fuller mailed a"Code Enforcement Notice" dated October 26, 1998 to Licensees at 830 South Robert Street. The notice advised Licensees that the LIEP had received citizen complaints regarding alfeged violations of license conditions. The notice listed the four conditions placed on Licensees' licenses and stated fhat Licensees were obligated to comply with them. The notice informed Licensees that the exterior storage of auto parts, oil, and uniicensed inoperabie vehicies is not allowed in a B-2 zoning district. The notice stated that the Licensees could not repair vehicles without a separate repair license. Finally, the notice warned Licensees that the Premises would be reinspected for compliance after November 2, 1998. 25. Licensees removed the junk car and vehicie parts after receiving the enforcement notice, and they now store vehicle parts in accordance with the zoning ordinance. 26. On December 10, 11 and 22, 1998, Mr. Zangs visited the Premises in response to continuing complaints received by LIEP. He documented some of his observations of the Premises by taking photographs. 27. On December 10, 1998, Mr. Zangs observed that a chain and post barrier now separated the Premises from the public boulevard on Winona Avenue in accordance with the earlier conditions placed upon the Licensees' licenses. However, one of Licensees' vehicles was parked between the chain barrier and the curb of Winona Avenue. There were also a number of vehicles parked in the through access area. In addition, Licensees' "For sale" vehicles were parked across the entire width of the northerly drive onto Robert Street. The Premises thus had inadequate maneuvering area and only a single access onto the Premises. These circumstances would force vehicles puiling into the Premises to back out onto Winona Avenue. Mr. Zangs believed this situation posed a tra�c hazard. From his vehicie, Mr. Zangs believed he observed that the easterly drive onto Winona Avenue was not removed, and that vehicles were parked in the driveway. Aithough Mr. Zangs did not count the vehicies on the lot, he presumed that there were greater than 40 vehicles on the Premises based on the general arrangement of the vehicles. 28. On December 11, 1998, Mr. Zangs again visited the Premises. He observed Licensees' vehicles parked between the chain barrier and the curb of Winona Avenue. Licensees' vehicles blocked the through access lane entering Z3 Transcript page 77. 24 Ciry exhibit 8. ss Id. 26 Transcript 60-61. Z ' Transcript pages 37-41; City exhibit 7a. 28 City exhibits 7b, 7c and 7d. � �t�-��9 onto Winona Avenue 2 Licensees' vehicies blocked the northeriy drive onto Robert Street. 29. On December 11, 1998, Licensees' trash dumpster was located in the public boulevard between the curb of Winona Avenue and the Premises. Mr. Zangs believed the dumpster was an obstruction of the public right-of-way on Winona Avenue 3Z 30. On December 11, 1998, a van containing windshields was �parked on Winona Avenue in front of the Premises with its cargo doors open. 3 Mr. Zangs observed windshields inside fhe van, leading him to believe that installation of windshields may be occurring on fhe Premises. Mr. Zangs believed that the installation of windshields constituted the repairing of vehicles. He believed further that City ordinance prohibited repairing vehicles without a license. 31. The license conditions required the compietion of the curb and gutter by September 9, 1998. On or about September 14, 1998, the curb, gutfer and sidewaik was installed by D&S Trucking of 8urnsville, Minnesota. 32. On February 10, 1999 the Assistant City Attorney served upon both Licensees a Notice of Violations. The notice recommended that adverse action be taken against Licensees based on allegations that Licensees had violated several conditions of their licenses. The notice alleged specific incidents related to parking vehicles on the Premises and on the boulevard of Winona Avenue, unauthorized repair of vehicles, storage of parts outside, and non-removal of the easterly drive onto Winona Avenue. Placement of the dumpster on the Winona boulevard was not specified in the Notice of Violations. 33. Barbara Munos lives at 822 South Robert Street, which is located across Winona Avenue from the Premises. Ms. Munos can view the Premises from her property. She has observed the Premises from her residence and nearby streets. She observed fhe sfafe of fhe Premises and documented those observations by� taking photographs from the period September of 1998 through March of 1999. 9 34. In the fall of 1998, Ms. Munos made severai observations regarding the Premises. Several vehicles, including those of Licensees, were parked in the through access area of the Premises and across the northerly drive onto Robert Street. Licensees' car and dumpster were on the public boulevard of Winona 29 City exhibits 7b and 7c. 30 City exhibits 7c, 7e and 7f. " Ciry exhibits 7b and 7c. 3Z Transcript pages 41-42. 33 Ciry exhibit 7d. 3a Transcri t ss P Pa9es 44-45. City exhibit 7d, 7c, 11 c— 17, 11 c- 18; Respondent exhibit A. 36 City exhibit 9. 37 �d. 38 City exhibit 5. 39 Transcript pages 85-87. 40 City exhibits 11a (2); 11 b(9); 11c (18); 15 and 17. 7 ��- �8`� Avenue 4 Licensees' "For safe" vehicles were parked on Robert Street ad'acent to the Premises.42 � 35. Ms. Munos observed Licensees parking some of their "For sale" vehicies on the streef during the day, removing the price tags from view and placing them on the seat. 36. Ms. Munos observed Licensees, at the end of fhe day, removing the vehicles from the streefs, parking fhem on the premises, and reaffixing the price tags. 37. In March of 1999, Ms. Munos observed what she believed to be repair work on a car inside the building on Licensees' Premises. She observed a vehicle elevated from the floor of the building (ocafed on Licensees' Premises 4s 38. Ms. Munos observed that a vehicle was parked continuously on the Winona Avenue boulevard from the fa(( of 1998 to the spring of 1 ggg, 39. Licensees considered the installation of windshields or other minor repairs performed only for Licensees' customers to be part of the purchasing of the vehicle not requiring a separate repair license 4 Neither MFK nor Import Auto have an auto repair license. 40. Licensees placed a dumpster on the public boulevard because the refuse hauler would not empty the dumpster if placed on the Premises. 41. On February 26, 1999, the City Attorney sent to Licensees a Notice ot' Hearing by first class mai( 4 7he notice informed Licensees of alleged violations to the Licensees' conditioned licenses as a result of compiaints filed with LIEP, The notice essentially restated the aliegations made in fhe initial Notice of Violation dated February 10, 1ggg, 42. The hearing notice set forth the hearing date of April 13, 1999 at St. Paul City Hall, SY. Paul, Minnesota, before Administrative Law Judge Phyllis A. Reha. The Notice of Hearing also provided that the hearing would be conducted in accordance with the requirements of Minn. Stat. § 14.57 — 14.62 and such parts of the procedures under § 310.05 of the St. Paul Legislative Code. ft furfher provided notice to the Licensees that they should bring to the hearing all documents, records and witnesses that they would or might need to support their pasition. The procedure for subpoenas was explained as well as the right to be represented by an attorney before and during fhe hearing or that the Licensees could represent themselves. °' City exhibit 11a (6, 7j; 11b (9); 11c (17); and 17. 42 City exhibit 11a (1, 6); 11b (9, 18); 11c (i8); and 17. 43 City exhibit'11b (9). 44 Transcript pages 93-94. 45 City exhibits 11a (2); 11a (4); and 12. 46 Ciry exhibits 14, 15. `� Kia testimony, June 22, 1999. 4e Kia testimony, June 22, 199g. 49 City exhibit 10. so City exhibit 9. 57 City exhibit 10 page 3. 0 a�-�Y� 43. The hearing went forward as scheduled o� April 13, 4999 with the Licensees representing themselves without benefit of legal counsel. At- the conclusion of the City's case-in-chiet, the Licensees made a motion to conEinue the hearing so that they could secure legai representation. The City did not object to the continuance motion being granted as long as the continuance would be granted for no longer than a two week period to enable Licensees to consult wifh an afforney. Once Licensees hired an attorney, the City would not object fo a further continuance, if requested, to permit Licensees to obfain a transcript and prepare for the hearing. The City further requested that it not be required to resubmit its entire case and re-offer its test+mony as evidence. The Administrative Law Judge granted the motion for continuance upon the stipulations set forth by the City. The City then witi�drew its objection to the continuance request. 44. 7he Respondents secured legal counsel within the two week period stipulated to at the conclusion of the hearing on Aprif 13 by legaf counsef submitting his Notice of Appearance to the Administrative Law Judge on April24, 9999. At the request of counsel for the Licensees, the hearing was continued to June 22, 1999 and concluded on that date. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. The Administrative Law Judge and the City Council of the City of Sf. Paul have jurisdiction in this matter pursuant to Minn. Stat, § 14.55 and St. Paul Legislative Code §§ 310.05 and 310.06. 2. The Notice of Hearing was proper in all respects and the City has complied with all other substanfive and procedural requirements of law or rule. 3. A Licensee may have imposed upon its ticense reasonable conditions for the purpose of promoting public health, safety and welfare. 4. The City of St. Paul has the burden of proof in this adverse action and must prove its case by a preponderance of the evidence. 5. The City may consider suspension of Licensees' Second Hand Motor Vehicle Dealer License. &. The City may also consider fhe imposifion of fines. SZ Transcript page 173. s ' Transcript page 171. 54 Transcript page 171. ss St. Paul Legislative Code § 310.06 (c). s6 In Re: Kaldahl, 418 N.W.2d 532, 535 (Minn. Ct. App. 1988).; Minn. Rules 1400.7300, subp. 5. 57 St. Paui Legislative Code § 310.06 (a) and (b). 58 St. Paul Legislative Code § 310.05 (I). 9 �1� -��'� 7. The express conditions piaced upon Licensees' Second Hand Motor Vehicle Dealer Licenses were reasonable limitations at the time they were imposed. _. 8. The express conditions were voluntarily agreed to by Licensees. 9. The public right-of-way on Winona Avenue and Robert StreeY includes the portion of the City street upon which vehicles travel and the area extending from the street curb to the privafe properEy line. Specifically, fhe public boulevard is the area between the street curb and the private property line. 10. A Second Hand Motor Vehicle Dealer License does not authorize repair of vehicles. �icensees must have a separate genera( repair license to make repairs on their vehicles. 11. On September 17, December 10 and December 11, 1998, and sometime during the fall of 1998, Licensees violated the first license condition by completely obstructing the northerly access onto Robert Streef wifh their vehicles. 12. On December 10, and December 11, 1998, Licensees violated the second license condition by allowing vehicles to obstruct the through access area on the Premises. 13. On September 17, December 10 and pecember 91, 1998, and in January or February 1999, and continuously from the winter to the spring of 1999, Licensees vio(afed fhe fourth license condition by parking their vehicles on the public boulevard of Winona Avenue. 14. By September 14, 9998, Licensees complied with the third express condition by removing the easteriy driveway on Winona Avenue and installing curb, gutter and sidewalk. The third license condition required installation of the curb and gutter by September 1, 1998. 15. Licensees must comply with City ordinances reasonably related to the license activity. Specifically, the City ordinances applicable to this matter concern B-2 zoning requirements, obsfruction of the public right-of-way, and licensure requirements for aufo repair. 16. On September 17, 1998, Licensees violated an implied condition of their license by not complying with City B-2 Zoning Ordinance requiring the storage of auto parts inside a building. Licensees violated fhe ordinance by storing auto parts on the ground. 17. On several occasions, Licensees have violated an implied condition of their license by not complying with the City ordinance requiring a specific license to perForm repairs upon vehicles. Licensees violafed the ordinance by performing minor auto repairs on the Premises without such a license. 59 St. Paul Legislative Code § 423.01 which prohibits any person from maintaining or operating an automobiie repair garage without a Iicense. 6o St. Paut Legislative Code § 310.06 (b) (6) (a). 90 c�� -�d'9 '18. On September 17 and December 19, 1998, Licensees violated an implied condition of their license by violating the City ordinance prohibiting the piacing of objects in fhe public right-of-way. Licensees violated the ordinance�by placing a dumpster on the public boulevard of Winona Avenue. However, Licensees were not given proper notice of this violation prior to the hearing thus, no adverse action shail be taken upon the Licensees as a result of fhis violation. 19. As a consequence of Conclusions 11-17, it is appropriate to take adverse action against Licensees. Adverse action may include imposing a license suspension, a fine, or both. 20. The foregoing Conciusions are made for fhe reasons set forth in the Memorandum which follows, which is hereby incorporated in these Conclusions by reference. Based upon the foregoing Conclusions, the Administrative Law Judge makes the foliowing: RECOMMENDATION IT IS HEREBY RECOMMENDED: that the St. Paul City Council take adverse action against the Second Hand Mctor Vehicle Dealer Licenses of Mohammed Abedi, d/b/a Import Auto Enterprises, Inc., and Mostafa Farzaneh � Kia, d/b/a MFK Enterprises, Inc., at 803 South Robert Street, St. Pauf, Minnesota. Dated this a�� day of August, 1999. -��u�.�'P�- 2. ��',._ PHYL'LIS A. REHA Administrative Law Judge Reported: Transcript (1 volume) Brennan & Associates (April 13, 1999 hearing} Taped: (3 cassettes) NOTICE (t is respecifuffy requested that the City Council provide a copy of its final decision to the Administrative Law Judge by frst class mail. MEMORANDUM This proceeding is an enforcement action proposing suspension of Licensees' Second Hand Motor Vehicie Dealer Licenses. The burden of proof is 91 �� on the City to.prove by a preponderance of the evidence that Licensees have violated conditions of their Second Hand Motor Vehicle Dealer Licenses and that suspension or a fine is warranted. __ 7he City is authorized to take adverse action against the licenses it issues. An appropriate basis for taking adverse acfion is wfiere a Licensee fails to comply with any condition set forth in the license 6 Another appropriate basis for taking adverse action is where a Licensee violates any provision of an ordinance reasonably related to the licensed activity. Such ordinances constifute implied conditions of the license. Furthermore, acts performed by empioyees or agents of the Licensee provide a basis for taking adverse action. The City alieges that Licensees have violated several express conditions of their Second Hand Motor Vehicle Dealer Licenses. The City further aNeges that Licensees have violated other City ordinances related to their licensed activities. The City has met its burden of proof in estabfishing thaf Licensees on several occasions violated the second and fourth express conditions placed on their licenses. The City has also met its burd�n in estabiishing that Licensees violated impiied conditions of their licenses by violating two city ordinances related to the licensed activity. The eye-witness testimony and photographic exhibits provided in evidence af the hearing by LIEP inspectors and a neighboring resident provided evidence su�cient to show fhat violations occurred. Adverse action against the Second Hand Motor Vehicle Dealer License held by Licensees is therefore appropriaYe. The Administrative Law Judge was persuaded that LIEP exp(ained fo Licensees the meaning of the express conditions prior to their signatures. The accompanying site plan ciearly illustrated what Licensees needed to do to comply with those conditions. Licensees agreed to abide by those reasonable conditions. The second license condition and, by reference, the site plan require that the designated "through access" area and the norther(y drive access onto Robert Street be maintained clear of vehicles. These requirements comprised a reasonable method to promote the safe flow of tra�c into and out of the Premises. Licensees violated both of those requirements on several occasions. First, Licensees allowed several vehicles, including their own, to completely or partially obstruct the fhrough access area. Second, Licensees allowed several of their "For sale" vehicies to completely obstruct the northerly access onto Robert Street. These two practices led to the complete obstruction of through access between Winona Avenue and Robert Street. Licensees contend that they are not violat+ng the through access condition because the vehicies parked in the through access area may be those of customers. TF�e fhrough access condition does not refer to the ownership status of fhe vehicles. However, from the language and the site plan, it is clear that the area must be maintained free of all vehicles. Regardless of vehicle ownership, 61 St. Paul Legisfafive Code § 310.06 (b) (5). 62 St. Paui Legislative Code § 310.06 (b) (6) (a). 63 St. Paul Legisiative Code § 310.17. �2 a a _ ��9 parking in the through access area impedes the safe movement of vehicles into and out of the premises. Obstruction of the th uor gh access creates a tra�c hazard that fhe condition was meant to prevent. Common sense suggeststhat the through access area must be kept open to enable vehicles to safely enter and leave the premises. In this light, the through access conditions cannot reasonably mean that fhe through access area may be used for customer parking. Licensees ciaim they cannot control where customers park. However, Licensees should have taken measures to enforce this license condition. Licensees cleariy violated the fourth express license condition prohibiting the parking of vehicles on the public boulevard of Winona Avenue. Licensees parked vehicles on the public boulevard on at least three different occasions or continuously during the winter and spring months of 4898-9999, Licensees continued to park vehicles on the public boulevard after they installed a chain barrier marking the area upon which parking was prohibited. The City Council should keep in mind that Licensees have violated the fourth license condition after being given written and verbal warning that parking vehicles on the boulevard was a violation. In addition, Licensees have violated implied license conditions by not complying with two City ordinances related to the business at the Premises. Licensees violated one implied license condition by not complying with the City ordinance stating as follows: [n]o person shall maintain or operate an automobile or motor vehicle repair garage in St. Paul without a license. This does not apply where the work performed is done by a gasoline filling station licensed under Chapter 424 and consists of the usual servicing of motor vehicles ordinarily performed at such stations, such as the sale and instailation of frost shields, radiator hoses, spark plugs, batteries and baftery cables, brake fluid, oil filters, fuses, fan belts, light buibs and windshield wipers, or such service as draining radiators; provided, however, that if such gasoline filling stations engage in the business of repairing mechanical parts of motor vehicles, a license as provided herein shall be required. Testimony from LIEP inspectors and neighbors showed that Licensees have repaired vehicies on the Premises. Licensees do not deny that they performed certain types of repairs on their own vehicles and that they do nof have a repair license. Licensees argue that making "minor" repairs to their own "For sale" vehicles pursuant to a sale does not require a separate repair license. Flowever, section 423.01 (a) makes no excepfion for such a situation. Section 423.01 (a) creates a specific exception only for the listed activities perFormed by a filiing station. Otherwise, a repair license is required to perform motor vehicle repair, i.e., those activities that would be performed at a"motor vehicle repair garage." The City Councii may wish to note that Licensees continued to repair vehicles without a repair license after being warned by LIEP that to do so was a violation of City ordinance. 64 St. Paul Legislative Code § 423.01 (a). 13 �q-`f�4 Within the City's B-2 Community Business District, "[a]II businesses, sforage, servicing or processing shall be conducted within completely enclosed buildings." The "ail. ..storage" provision includes the storage of auto paits. Licensees violated this ordinance by sforing their auto parts on the ground instead of inside an enclosed building. The City Counci! may wish to note that Licensees, after being told that this was a violation, did remove the parts from the grounds and no longer stored them outside. At the hearing, the City aHeged that Licensees placed a dumpster on the public boulevard. Licensees in fact did so. However, the City did not make clear upon what basis this act was a violation of the (icense conditions. The fourth license condition and the site plan refer specifically and exclusively to the prohibition of parking vehicles on the Winona boulevard, The fourth license condition was placed on the license to address the past history of parking vehicles on the boulevard. Furthermore, Licensees' dumpster arguabiy presents a substantialiy lesser obstruction to the boulevard than do vehicles. Therefore, it is not reasonable to apply the fourth ficense condition to the placement of a dumpster on the boulevard. Placing the dumpster on the boulevard did not violate Licensees fourth license condition. The Council may also wish to consider that the LIEP did not give proper notice to the Licensees that placing a dumpster on the boulevard violated Cify ordinance, The Notice of Hearing "shali state the issues involved or grounds upon which the adverse action may be sought or based." This particular aliegafion was not made in either the Notice of Violation or Yhe Notice of Hearing. The a!legation is not related to the fourth license condition. For these reasons, the City should not be able to raise the dumpster issue at hearing for the firsf time. Accordingly, the Administrative Law Judge has recommended no violafion be found on this issue. The City alleged, but did nat show by a preponderance of the evidence, that there were ever more than 40 vehicles on the premises. Although the evidence provided at the hearing showed that the "through access" area contained vehicles, that observation alone does not evidence that more than 40 vehicles were on the Premises. The congested appearance of the Premises appears to stem primarily from obstruction of the through access, rather than by the tota! number of vehicles on the Premises. It would have been a relatively simple and quick task to count the number of vehicles on the lot. The City has not adequately shown that Licensees have violated the first license condition. The City alleged that the easterly drive onto Winona Avenue was not removed and replaced by curb and gutter by September 9, 1998. The City further aileged that this work was not even completed by December of 1998. The City acknowledged that the work had been completed by the date of this hearing. The testimony and evidence presented by the Licensees at the hearing clearly established that the curb, gutter and sidewaik work was completed on September 14, 1998. This is also consistent with the City's own photographic evidence presented at the hearing which clearly showed that the drive was removed and replaced by gutter and sidewalk sometime during the fall of 1998. ss St. Paul Legislative Code § 60.533 (2). 66 St. Paui Legislative Code § 309.05 (b). 14 � � - �� Aithough the curb, gutter and sidewalk was p(aced less than two weeks beyond the September 1, 1998 deadiine, the Council may wish fo consider that the Licensees did complete the required work shortiy after the due date specifiet�"by the third license condition. It would be inappropriate to discipline the Licensees for this minor infraction. Based on its ailegafions, the City recomrnended a 60 day suspension of Licensees licenses. The Council may wish to consider the circumstances discussed in this Memorandum in determining whether the recommended 60 day suspension is of appropriate duration. The Administrative Law Judge believes that a 60 day suspension is too harsh a penalfy under the circumstances. The Council may also consider imposing a fine upon Licensees as an alternative to or in addition to the license suspension. The imposition of a fine would more likely ailow the Licensees to continue operating their family businesses. It appears to the Administrative Law Judge that the Licensees wanf to comply with the conditions and City ordinances in the future and be good citizens of their neighborfiood. A fine may be a more reasonab(e alternative fo a suspension which may put the Licensees out of business. The City aiso recommended modifying the license conditions to create a parking area for customers and additional areas for maneuvering of vehicles on the premises. The reason for imposing these conditions is not to penalize Licensees for past violations, but rather to alieviate vehic(e congestion on and around the Premises. The City Council may want to consider fhese recommendations that are contained in the record. • P.A.R/ _� l� 15 ORIGI�IAL Presented By Refened To RESOLUTION Council File # �( �- Q s'� Green Sheet # �r.� c�7 \1 Committee: Date 1 WI�REAS, the City of Saint Paul, Office of License, Inspections and 2 Environmental Protection (LIEP) initiated adverse action against the license of Mohammed 3 Abedi, d!b!a Import Auto Enterprises, Inc., and Mostafa Farzaneh Kia, dJbJa MFK Enterprises, 4 Inc., 830 South Robert Street, for violations of the conditions on the licenses; and 6 WHEREAS, an administrative hearing was held before Administrative Law Judge Phyllis 7 A. Reha on April 13, 1999 and June 22, 1999; and 9 WHEREAS, the administrative law judge issued her Findings of Fact, Conclusions of 10 Law and Recommendation on August 23, 1949; and 11 12 WfiEREA5, at the public hearing on September 22, 1999 the licensees did not appeaz nor 13 did they file exceptions to the Administrative Law Judge's Report; now therefore, be it 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 RESOLVED, that the Council of the City of Saint Paul, after due deliberation based upon all of the files, records and proceedings herein, including the documents and e�ibits submitted to the Administrative Law Judge, the Findings, Conclusions and Recommendarion of the judge as well as the Memorandum attached thereto, and such azguments as may have been made at the hearing, imposes the following adverse acfion against the second hand motor vehicle licenses held by Mohaunned Abedi, dfbla Import Auto Enterprises, Inc., and Mostafa Farzaneh Kia, dJbla MFK Enterprises, Inc., for the premises at 830 South Robert Street: 1) The licenses shall be suspended for a period of thirty days effective at 12:01 a.m.on November 3, 1999 and continuing until 11:59 p.m. on December 2, 1999, or in the alternative, the licensees shall pay a fine of $2,000, which fine shall be due on or before October 26, 1999. 2) An additional thirty day suspension shall be imposed, which suspension is hereby stayed for a period of eighteen (18) months on the condition that thexe be no further violations of the license conditions or violations of law during that period. 3) The condition on each of the licenses that pernuts the display of 40 cazs on the premises shall be amended to permit the display of no more than 20 vehicles for sa1e. —� 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 FURTHER RESOLVED, that in the event there is a violation of the conditions of the licenses, or of law, within the nea�t eighteen months, the stayed 30 day suspension will be �1 q' �� ixnposed upon the licensees using the following procedure: 1) The director of LIEP or his designee will execute an affidavit reciting on personal laiowledge the violation or violafions of the condirions of the licenses or of the law; and 2) Such aff davit shall be served on fl�e licensee; and 3) A resolution nnposing the stayed thirty days, specifying the beginning and ending dates of such suspension sha11 be prepared by LIEP, and the council sl�all place it on the neart available consent agenda for appropriate action; and 4) A copy of the resolution shall be served on the licensees. FURTHER RESOLVED, that the Findings of Fact and Conclusions of Law of the Administrative Law Judge shall be adopted and shall be attached and incorporated herein, by reference. A copy of this Resolution, as adopted, shall be sent by first class mail to the Licensees, their attorney and to the Administrarive Law Judge. ORIGINAL Requested by Department of: By: By: Appx By: Form Appsoved y City Attorn . By: G� ��+t � Approved by Mayor £or Submission to Council By: Adopted by Council: Date � ��_ �.Z ��°` \ Adoption Certified by Council Secretary City Virginia Palmer 9/29/99 � � TOTAL # OF SIGNATURE PAGES GREEN SHEET °(`f -°�F�� No 1�Jt�?�1 � �.,R,.��,� � ��.. _ ❑ �.,.� ❑ �«� _ ❑..�..�.�.. ❑..�,�,.a.a ❑w,�.�.»�.µ., ❑ (CL{P ALL LOCATIONS FOR SIGNATURE) Finalizing City Council action taken September 22, 1999: concerning adverse action against licenses held by Mohammad Abedi, dba Import Auto Enterprises, S30 Robert Street AI. PLANNING COMMISSION CIB COMMI7TEE CIVIL SERVICE COMMISSION Has tnie veraoiwm, ever waMea wwer a CaNa�t ta mis department? YES NO Has this oewrnrfirm ever been a aYV omPbvee� YES NO Dces ih(s pereorilfi�m p�c a slGl na �qrmalypoesessed by any ammt tlty empbyce? YE3 !10 k Mis P�rm a tarpefetl ventlof! YES NO AMOUNT OF TRANSACTION 1 COtT/REVENUE BUOfiETEA {CIRCLE ON� YES NO FUND1916 SOURCE FINANCULL MFORMATON (IXPWf� ACTIYtTY NURIBER OFFICE OF THE CITY ATTORNEY Claytan M. Rabinron, Jr., City At�orney �0 CITY OF SEIINT PAUL Norm Cofeman, Mayar Civi! Divisron 400 Ciry Ha[! IS !3'est KelloggBlvd. Saint Paul, ,Ltinnesota 55/02 Telephone: 651266-87! 0 Facsimi(e: 657 298-5619 September 8, 1999 NOTICE OF COUNCIL HEARING Mr. Bemard J. Robichaud Robichaud & Nepp 402 Towle Building 330 Second Avenue South Minneapolis, Minnesota 55401 -- 1 1 ' �� l RE: In the matter of the licenses held by Mohammad Abedi d/6/a Import Auto Entexprises, Inc. and Mostafa Farzaueh Kia d/b/a MFK Enterprises, Inc. For the premises located at 830 Robert St. N. in St. Paul License ID No.s: 19970000049 and 57957 Our File Number: G99-0058 Dear Mr. Robichaud: Please take notice that a hearing on the report of the Admisustrative Law Jud�e conceming the above-mentioned license has been scheduled for 5:30 p.m:, Wednesday, September 22, 1999, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opportunity 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 Heazing. No new evidence will be received or testimony taken at this heazing. The Council wi11 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, `��u,t,c� (.�. ��o�C �-t Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Community Organizer, West Side Citizens Organi2ation,127 �Vinifred St. W., St. Paul, MN 55107 9-2111-12117-3 STATE OF MINNESOTA - �� OFFICE OF ADMINISTRATlVE HEARINGS FOR THE C1TY OF ST. PAUL {n the Matfer of the Second Hand Motor FiNDiNGS OF FACT. Dealer Licenses of Mohammed Abedi, CONCLUSlONS OF LAW d1b/a Import Auto Enterprises, 1nc. and AND RECOMMENDATION Mostafa Farzaneh Kia, d!b(a MFK Enterprises, Inc. The above-entitfed matter came on for hearing before Administrative Law Judge Phyllis A. Reha on April 13, 1999, at 9:30 a.m. in Room 41, St. Pau{ City Hali, 15 West Kellogg Boulevard, St. Paul, Minnesota. The hearing was continued and conciuded on June 22, 1999 at the same location. Virginia D. Palmer, Assistant St. Paul City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paui, Minnesota, appeared on behalf of the City of St. Pauf ("City"). The Licensees Mohammed Abedi, owner of Import Auto Enterprises, Inc. and Mostafa Farzaneh Kia, owner of MFK Enterprises, lnc. appeared on their own behalf without counse{ at the April 13, 1999 hearing. Bernard J. Robichaud, Jr., Attorney at Law, 402 Towle Building, 330 Second Avenue South, Minneapolis, MN 55401, appeared representing both Licensees at the hearing on June 22, 1999. The hearing record closed on July 23, 1999 upon receipt of the City's Reply Memorandum. NOTICE This Report is a recommendation, not a final decision. The City Council will make the final decision in this matter, after its review of the record. The City Council may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendation contained herein. Pursuant to § 310.05 of the St. Paul Legislative Code, the City Council will afford the Licensees an opportunity to present oral or written arguments to it prior to taking final action. The Licensees should contact Virginia Palmer to determine the procedures for fifing such argument or appearing befiore the City Council. STATEMENT OF ISSUE The issues in the proceeding are whether the Licensees violated the conditions of their Second Hand Motor Vehicle Dealer Licenses by: 1. Failing to comply with any of the express conditions placed upon their iicenses; or 2. Fai�ing to comply with other City ordinances reasonably related to the ficenses; and ��-�� 3. Whether the City Councif can take adverse action for such violations pursuant to St. Paul Legislative Code _ §310.06(a) and (b). : r Based upon all of the proceedings herein, the Adminisfrafive Law .ludge makes the following: FINDINGS OF FACT 1. Mohammed Abedi and Mostafa Farzaneh Kia own Import Auto Enterprises ("{mport Auto") and MFK Enterprises, Inc. ("MFK"), respectively. Import Auto and MFK are both locafed on premises at 830 South Robert Street, St. Paul, Minnesota. (Hereinafter referred to as "the Premises"). 2. Mr. Abedi and Mr. Kia are in the business of selling second hand vehicles at the Premises. 3. Mr. Kia d/b/a MFK holds Second Hand Motor Vehicle Dealer License No. 0057957 to do business at the Premises.� f�1r. Abedi d/b/a Import Auto holds Second Hand Motor Vehicle Dealer License No. 19970000049 to do business af the Premises Z 4. The Premises occupies a rectanguiar area at the southeast corner of the intersection of South Robert Street and Winona Avenue in the City of St. Paul. A single building, design�d originally as a service station, is located in about the center of the Premises. The building has two bays that may be used to repair vehicles. The remainder of the Premises consists of open ground suitable for parking vehicles. The open ground is used primariVy to dispfay Licensees' vehicles that are for sale. In December, 1997, the Premises had two driveway accesses onto South Robert Street and two onto Winona Avenue. 5. The Premises has been a long time source of complaints from neighboring residents. Complaints were received by the Office of License, Inspections and Environmental Protection ("LIEP") when the Premises was owned by previous licensed second hand vehicfe dealers. The primary complaints were: (1) "For sale" vehicles were on the public boulevard between the curb of �nona Avenue and the Premises; (2) "For sale" vehicles were parked on Robert Street and Winona Avenue; (3) vehicies (presumably those of customers) were parked on Winona Avenue so as to block private driveways; and (4) an excessive number of vehicles were on and near the Premises, resulting in traffic congestion. 6. The LIEP reviews license applications, and issues and enforces City licenses. Lawrence Zangs and Margaret Fuller are zoning specialists empfoyed by LiEP. 7. On September 27, 1995, Mr. Kia on behalf of MFK filed an appiication for a new Second Hand Motor Vehicle Dealer License to sell second ' City Exhibit No. 1. Z City Exhibit No. 3. 3 Transcript pages 18-19. 2 ��-�� hand vehicles at the Premises 4 Shortly thereafter in 1995, LIEP issued a Second Hand Motor Vehicle Dealer License to Mr. Kia d/b/a MFK fo seli second hand vehicles at the Premises 5 .. 8. In late 1997, Mr. Abedi d/b/a Import Auto appiied for a separafe Second Hand Motor Vehicle Dealer License to sell second hand vehicles at the Premises. Mr. Zangs considered it unusual for iwo second hand motor vehicle dealer businesses to operate at the same site. Mr. Zangs was particularly concerned about the potential for an excessive number of vehicles on the Premises resulting from the concurrent operation of two motor vehicle businesses at the same location � 9. In December, 1997, Mr. Zangs twice visited the Premises as part of reviewing Mr. Abedi's license application. Mr. Zangs in early December observed "For sale" vehicles parked on the public boulevard between the curb of Winona Avenue and the Premises. At this time there was not an express condition prohibiting this practice placed on Mr. Kia's license. Mr. Zangs visited the Premises again later in December of 1997. Based on his observations of the Premises, Mr. Zangs proposed a set of license conditions to which both Licensees at that Premises must abide. Mr. Zangs' primary purpose in imposing the license conditions was to contain Licensees' vehicles on the Premises, thus mitigating the impact of Licensees' business activity on the surrounding community, especially those activities associated with prior citizen complaints. Mr. Zangs believed that his restrictions would accomplish that purpose. 10. In conjunction with the express conditions, Mr. Zangs prepared a "site plan." The site pian is a scale drawing of the Premises depicting the location of the building, the driveway accesses, and the dimensions of the Premises. The site plan further iffustrated the meaning of the express conditions. 11. On January 2, 1998, Mr. Zangs met with Mr. Abedi and Mr. Kia and explained to them the proposed conditions set fcrth in the January 2, 1998 ietters addressed to Licensees. Identical letters were sent to Mr. Kia and to Mr. Abedi.�� Pursuant to their discussion, three changes to the proposed conditions were made by deleting certain words. Deletions were denoted by lining out the words to be deleted. Mr. Zangs, Mr. Kia and Mr. Abedi approved each change by signing their initials next to each change. Mr. Kia and Mr. Abedi indicated their acceptance of the amended license conditions by signing their respective letters on January 2, 1998. ° City Exhibit No. 1. 5 7ranscript page 17. 6 Trenscript page 17. ' Transcript page 19. $ City Exhibit A-C. 9 Transcript pages 19-20. 10 City Exhibit 5. " City Exhibits 2 and 4. iz Id. 3 � -�t�� 12. Mr. Zangs, Mr. Kia and Mr. Abedi agreed that the following four express conditions be placed on the Second Hand Motor Vehicle Dea{er Licenses of both MFK and Import Auto: 1. The number of vehicles on the lot at any one time be limited to 40. 2. A drive lane shall be maintained open for through vehicle access as shown on the site pian. 3. The easterly drive on Winona Avenue must be removed and restored with curb and gutter to City specifications. The driveway removal and restoration work must be done by September 1, 1998 with a permit from the St. Paul Public Works Division. 4. Vehicles shall not project into or be parked in the public rights-of-way on Robert Street and Winona Avenue. A post and chain barrier or similar vehicle restraint device must be installed along the property line on Winona to prevent encroachment into the public area.� 13. The first, second and fourth license conditions expressly referred to the site pian to clarify the meaning of the language. 14. The 4etters of January 2, 1998 did not specify that violation of these conditions would result in adverse action against license. 15. On Januar�r 2, 1998, Mr. Zangs approved the accompanying "site plan" for the Premises.' The site plan: 1) delineated by dash lines five specific areas on the Premises where vehicles could be parked; 2) specified the maximum number of vehicies to be parked in each area; 3) delineated an area on the Premises in which "through access" from Robert Street and Winona Avenue must be maintained by proh+bit+ng the parking of vehicles in that area; 4) stated that vehicies may not be parked in the northerly access drive onfo Robert Street; 5) stated that parking on the public boulevard between Winona Avenue and the property line of the Premises was prohibited; 6) specified fhat the westerly drive access onto Winona Avenue be removed and replaced wifh curb and gutter; 7) showed where a barrier to cieariy mark the Premises from the public boulevard was to be instailed. Mr. Zangs approved the pfan by signing his initiais upon it. 16. The first, second and fourth express conditions specifically refer to the site plan described in F'inding 15 above. The letter signed by Licensees also refers to the site plan. 17. The specific parking areas were based on Mr. Zangs' judgment of where vehicies could be parked. The number of cars permitted in each area was based on its physicaf dimensions. The main purpose for maintaining the through �4 City Exhibit 2, 4; see attached site plan for parking layout acceptable to the City. City Exhibit 2, 4; see site plan for location. 75 City exhibit 2, 4. 76 City exhibit 5. i� r a '�� access was to minimize traffic hazards. The through access was designed to provide room to maneuver vehicles on the Premises so that vehicles need not back out onto the City streets. The purpose of closing the easterly driv��on Winona was to remove the commercial access to the Premises away from�the adjoining residenfial area. The purpose of the chain barrier was to clearly demarcate the boundary between the Premises and the public area, thereby cleariy showing where Licensees' vehicles couid and could not be parked. This last condition specificaily addressed the past problems of vehicles being parked on the public boulevard of Winona Avenue." 18. The site plan did not expressiy prohibit the parking of Licensees "For sale" vehicles on Winona Avenue or Robert Street. Mr. Zangs intended that there be no parking of "For sale" vehicles on Winona Avenue or Robert Street. Mr. Zangs believed that the public right-of-way includes the area occupied by the public street plus the area extending from the street curb to the private property line; the license condition specifying no parking on the public right-of-way included prohibiting parking of "For sale" vehicies on Winona Avenue or Robert Street.' 19. The letters dated January 2, 1998 containing the specified conditions advised Licensees of past complaints received by LIEP regarding vehicles being parked on the pubiic boulevard on Winona Avenue. 20. On or around February 11, 1998, LIEP granted a Second Hand Motor Vehicie Dealer License to Mr. Abedi d!b/a import Auto. 21. Following the imposition of the express conditions on Licensees' licenses, LIEP received additional complaints concerning Licensees' business premises. The complaints were (1) that Licensees' "For sale" vehicles were parked on the public right-of-way; (2) that there was unauthorized repair of vehicles on the Premises; and (3) that they were an excessive number of vehicles on the Premises. 22. In response to these complaints, City Zoning Inspector Margaret Fuiler visited the Premises on September 17, 1998. She observed that: (1) the northerly access to Robert Street was completely obstructed by Licensees' vehicles; (2) a vehicle was parked in the pub{ic boulevard between Winona Avenue and the Premises (in the location illustrated by City exhibit 7d); (3) a person appeared to be doing repairs on a vehicle inside the building; (4) an engine and other junk parts were strewn about the open ground south of the buiiding; (5) a"junk" vehicle containing parts and supplies was parked on the Premises east of the building (in the "six car area"); (6) the ground northeast of the building was messy and contained junk vehicles. Ms. Fuller did not record any observations regarding the easterly drive onto Winona Avenue? " Transcript pages 27-31. M1B Transcript pages 30-31. t9 City Exhibits 2 and 4. 20 Transcript page 17; City Exhibit 3. 21 Transcript page 32. 22 Transcript page 77-80. 4'1 � � � / i 23. On September 17, 1998, Ms. Fuller informed Mr. Abedi that storage of vehicie parts outside on the ground was prohibited by B-2 Zoning District Ordinance. Since the Premises is in a B-2 Zoning District, Licensees were t#�us in violation of the storage ordinance. Ms. Fuller explained to Mr. Abedi that even though zoning code requirements are not an express condition of his license, he must comply with zoning codes as weil. 24. Ms. Fuller mailed a"Code Enforcement Notice" dated October 26, 1998 to Licensees at 830 South Robert Street. The notice advised Licensees that the LIEP had received citizen complaints regarding alfeged violations of license conditions. The notice listed the four conditions placed on Licensees' licenses and stated fhat Licensees were obligated to comply with them. The notice informed Licensees that the exterior storage of auto parts, oil, and uniicensed inoperabie vehicies is not allowed in a B-2 zoning district. The notice stated that the Licensees could not repair vehicles without a separate repair license. Finally, the notice warned Licensees that the Premises would be reinspected for compliance after November 2, 1998. 25. Licensees removed the junk car and vehicie parts after receiving the enforcement notice, and they now store vehicle parts in accordance with the zoning ordinance. 26. On December 10, 11 and 22, 1998, Mr. Zangs visited the Premises in response to continuing complaints received by LIEP. He documented some of his observations of the Premises by taking photographs. 27. On December 10, 1998, Mr. Zangs observed that a chain and post barrier now separated the Premises from the public boulevard on Winona Avenue in accordance with the earlier conditions placed upon the Licensees' licenses. However, one of Licensees' vehicles was parked between the chain barrier and the curb of Winona Avenue. There were also a number of vehicles parked in the through access area. In addition, Licensees' "For sale" vehicles were parked across the entire width of the northerly drive onto Robert Street. The Premises thus had inadequate maneuvering area and only a single access onto the Premises. These circumstances would force vehicles puiling into the Premises to back out onto Winona Avenue. Mr. Zangs believed this situation posed a tra�c hazard. From his vehicie, Mr. Zangs believed he observed that the easterly drive onto Winona Avenue was not removed, and that vehicles were parked in the driveway. Aithough Mr. Zangs did not count the vehicies on the lot, he presumed that there were greater than 40 vehicles on the Premises based on the general arrangement of the vehicles. 28. On December 11, 1998, Mr. Zangs again visited the Premises. He observed Licensees' vehicles parked between the chain barrier and the curb of Winona Avenue. Licensees' vehicles blocked the through access lane entering Z3 Transcript page 77. 24 Ciry exhibit 8. ss Id. 26 Transcript 60-61. Z ' Transcript pages 37-41; City exhibit 7a. 28 City exhibits 7b, 7c and 7d. � �t�-��9 onto Winona Avenue 2 Licensees' vehicies blocked the northeriy drive onto Robert Street. 29. On December 11, 1998, Licensees' trash dumpster was located in the public boulevard between the curb of Winona Avenue and the Premises. Mr. Zangs believed the dumpster was an obstruction of the public right-of-way on Winona Avenue 3Z 30. On December 11, 1998, a van containing windshields was �parked on Winona Avenue in front of the Premises with its cargo doors open. 3 Mr. Zangs observed windshields inside fhe van, leading him to believe that installation of windshields may be occurring on fhe Premises. Mr. Zangs believed that the installation of windshields constituted the repairing of vehicles. He believed further that City ordinance prohibited repairing vehicles without a license. 31. The license conditions required the compietion of the curb and gutter by September 9, 1998. On or about September 14, 1998, the curb, gutfer and sidewaik was installed by D&S Trucking of 8urnsville, Minnesota. 32. On February 10, 1999 the Assistant City Attorney served upon both Licensees a Notice of Violations. The notice recommended that adverse action be taken against Licensees based on allegations that Licensees had violated several conditions of their licenses. The notice alleged specific incidents related to parking vehicles on the Premises and on the boulevard of Winona Avenue, unauthorized repair of vehicles, storage of parts outside, and non-removal of the easterly drive onto Winona Avenue. Placement of the dumpster on the Winona boulevard was not specified in the Notice of Violations. 33. Barbara Munos lives at 822 South Robert Street, which is located across Winona Avenue from the Premises. Ms. Munos can view the Premises from her property. She has observed the Premises from her residence and nearby streets. She observed fhe sfafe of fhe Premises and documented those observations by� taking photographs from the period September of 1998 through March of 1999. 9 34. In the fall of 1998, Ms. Munos made severai observations regarding the Premises. Several vehicles, including those of Licensees, were parked in the through access area of the Premises and across the northerly drive onto Robert Street. Licensees' car and dumpster were on the public boulevard of Winona 29 City exhibits 7b and 7c. 30 City exhibits 7c, 7e and 7f. " Ciry exhibits 7b and 7c. 3Z Transcript pages 41-42. 33 Ciry exhibit 7d. 3a Transcri t ss P Pa9es 44-45. City exhibit 7d, 7c, 11 c— 17, 11 c- 18; Respondent exhibit A. 36 City exhibit 9. 37 �d. 38 City exhibit 5. 39 Transcript pages 85-87. 40 City exhibits 11a (2); 11 b(9); 11c (18); 15 and 17. 7 ��- �8`� Avenue 4 Licensees' "For safe" vehicles were parked on Robert Street ad'acent to the Premises.42 � 35. Ms. Munos observed Licensees parking some of their "For sale" vehicies on the streef during the day, removing the price tags from view and placing them on the seat. 36. Ms. Munos observed Licensees, at the end of fhe day, removing the vehicles from the streefs, parking fhem on the premises, and reaffixing the price tags. 37. In March of 1999, Ms. Munos observed what she believed to be repair work on a car inside the building on Licensees' Premises. She observed a vehicle elevated from the floor of the building (ocafed on Licensees' Premises 4s 38. Ms. Munos observed that a vehicle was parked continuously on the Winona Avenue boulevard from the fa(( of 1998 to the spring of 1 ggg, 39. Licensees considered the installation of windshields or other minor repairs performed only for Licensees' customers to be part of the purchasing of the vehicle not requiring a separate repair license 4 Neither MFK nor Import Auto have an auto repair license. 40. Licensees placed a dumpster on the public boulevard because the refuse hauler would not empty the dumpster if placed on the Premises. 41. On February 26, 1999, the City Attorney sent to Licensees a Notice ot' Hearing by first class mai( 4 7he notice informed Licensees of alleged violations to the Licensees' conditioned licenses as a result of compiaints filed with LIEP, The notice essentially restated the aliegations made in fhe initial Notice of Violation dated February 10, 1ggg, 42. The hearing notice set forth the hearing date of April 13, 1999 at St. Paul City Hall, SY. Paul, Minnesota, before Administrative Law Judge Phyllis A. Reha. The Notice of Hearing also provided that the hearing would be conducted in accordance with the requirements of Minn. Stat. § 14.57 — 14.62 and such parts of the procedures under § 310.05 of the St. Paul Legislative Code. ft furfher provided notice to the Licensees that they should bring to the hearing all documents, records and witnesses that they would or might need to support their pasition. The procedure for subpoenas was explained as well as the right to be represented by an attorney before and during fhe hearing or that the Licensees could represent themselves. °' City exhibit 11a (6, 7j; 11b (9); 11c (17); and 17. 42 City exhibit 11a (1, 6); 11b (9, 18); 11c (i8); and 17. 43 City exhibit'11b (9). 44 Transcript pages 93-94. 45 City exhibits 11a (2); 11a (4); and 12. 46 Ciry exhibits 14, 15. `� Kia testimony, June 22, 1999. 4e Kia testimony, June 22, 199g. 49 City exhibit 10. so City exhibit 9. 57 City exhibit 10 page 3. 0 a�-�Y� 43. The hearing went forward as scheduled o� April 13, 4999 with the Licensees representing themselves without benefit of legal counsel. At- the conclusion of the City's case-in-chiet, the Licensees made a motion to conEinue the hearing so that they could secure legai representation. The City did not object to the continuance motion being granted as long as the continuance would be granted for no longer than a two week period to enable Licensees to consult wifh an afforney. Once Licensees hired an attorney, the City would not object fo a further continuance, if requested, to permit Licensees to obfain a transcript and prepare for the hearing. The City further requested that it not be required to resubmit its entire case and re-offer its test+mony as evidence. The Administrative Law Judge granted the motion for continuance upon the stipulations set forth by the City. The City then witi�drew its objection to the continuance request. 44. 7he Respondents secured legal counsel within the two week period stipulated to at the conclusion of the hearing on Aprif 13 by legaf counsef submitting his Notice of Appearance to the Administrative Law Judge on April24, 9999. At the request of counsel for the Licensees, the hearing was continued to June 22, 1999 and concluded on that date. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. The Administrative Law Judge and the City Council of the City of Sf. Paul have jurisdiction in this matter pursuant to Minn. Stat, § 14.55 and St. Paul Legislative Code §§ 310.05 and 310.06. 2. The Notice of Hearing was proper in all respects and the City has complied with all other substanfive and procedural requirements of law or rule. 3. A Licensee may have imposed upon its ticense reasonable conditions for the purpose of promoting public health, safety and welfare. 4. The City of St. Paul has the burden of proof in this adverse action and must prove its case by a preponderance of the evidence. 5. The City may consider suspension of Licensees' Second Hand Motor Vehicle Dealer License. &. The City may also consider fhe imposifion of fines. SZ Transcript page 173. s ' Transcript page 171. 54 Transcript page 171. ss St. Paul Legislative Code § 310.06 (c). s6 In Re: Kaldahl, 418 N.W.2d 532, 535 (Minn. Ct. App. 1988).; Minn. Rules 1400.7300, subp. 5. 57 St. Paui Legislative Code § 310.06 (a) and (b). 58 St. Paul Legislative Code § 310.05 (I). 9 �1� -��'� 7. The express conditions piaced upon Licensees' Second Hand Motor Vehicle Dealer Licenses were reasonable limitations at the time they were imposed. _. 8. The express conditions were voluntarily agreed to by Licensees. 9. The public right-of-way on Winona Avenue and Robert StreeY includes the portion of the City street upon which vehicles travel and the area extending from the street curb to the privafe properEy line. Specifically, fhe public boulevard is the area between the street curb and the private property line. 10. A Second Hand Motor Vehicle Dealer License does not authorize repair of vehicles. �icensees must have a separate genera( repair license to make repairs on their vehicles. 11. On September 17, December 10 and December 11, 1998, and sometime during the fall of 1998, Licensees violated the first license condition by completely obstructing the northerly access onto Robert Streef wifh their vehicles. 12. On December 10, and December 11, 1998, Licensees violated the second license condition by allowing vehicles to obstruct the through access area on the Premises. 13. On September 17, December 10 and pecember 91, 1998, and in January or February 1999, and continuously from the winter to the spring of 1999, Licensees vio(afed fhe fourth license condition by parking their vehicles on the public boulevard of Winona Avenue. 14. By September 14, 9998, Licensees complied with the third express condition by removing the easteriy driveway on Winona Avenue and installing curb, gutter and sidewalk. The third license condition required installation of the curb and gutter by September 1, 1998. 15. Licensees must comply with City ordinances reasonably related to the license activity. Specifically, the City ordinances applicable to this matter concern B-2 zoning requirements, obsfruction of the public right-of-way, and licensure requirements for aufo repair. 16. On September 17, 1998, Licensees violated an implied condition of their license by not complying with City B-2 Zoning Ordinance requiring the storage of auto parts inside a building. Licensees violated fhe ordinance by storing auto parts on the ground. 17. On several occasions, Licensees have violated an implied condition of their license by not complying with the City ordinance requiring a specific license to perForm repairs upon vehicles. Licensees violafed the ordinance by performing minor auto repairs on the Premises without such a license. 59 St. Paul Legislative Code § 423.01 which prohibits any person from maintaining or operating an automobiie repair garage without a Iicense. 6o St. Paut Legislative Code § 310.06 (b) (6) (a). 90 c�� -�d'9 '18. On September 17 and December 19, 1998, Licensees violated an implied condition of their license by violating the City ordinance prohibiting the piacing of objects in fhe public right-of-way. Licensees violated the ordinance�by placing a dumpster on the public boulevard of Winona Avenue. However, Licensees were not given proper notice of this violation prior to the hearing thus, no adverse action shail be taken upon the Licensees as a result of fhis violation. 19. As a consequence of Conclusions 11-17, it is appropriate to take adverse action against Licensees. Adverse action may include imposing a license suspension, a fine, or both. 20. The foregoing Conciusions are made for fhe reasons set forth in the Memorandum which follows, which is hereby incorporated in these Conclusions by reference. Based upon the foregoing Conclusions, the Administrative Law Judge makes the foliowing: RECOMMENDATION IT IS HEREBY RECOMMENDED: that the St. Paul City Council take adverse action against the Second Hand Mctor Vehicle Dealer Licenses of Mohammed Abedi, d/b/a Import Auto Enterprises, Inc., and Mostafa Farzaneh � Kia, d/b/a MFK Enterprises, Inc., at 803 South Robert Street, St. Pauf, Minnesota. Dated this a�� day of August, 1999. -��u�.�'P�- 2. ��',._ PHYL'LIS A. REHA Administrative Law Judge Reported: Transcript (1 volume) Brennan & Associates (April 13, 1999 hearing} Taped: (3 cassettes) NOTICE (t is respecifuffy requested that the City Council provide a copy of its final decision to the Administrative Law Judge by frst class mail. MEMORANDUM This proceeding is an enforcement action proposing suspension of Licensees' Second Hand Motor Vehicie Dealer Licenses. The burden of proof is 91 �� on the City to.prove by a preponderance of the evidence that Licensees have violated conditions of their Second Hand Motor Vehicle Dealer Licenses and that suspension or a fine is warranted. __ 7he City is authorized to take adverse action against the licenses it issues. An appropriate basis for taking adverse acfion is wfiere a Licensee fails to comply with any condition set forth in the license 6 Another appropriate basis for taking adverse action is where a Licensee violates any provision of an ordinance reasonably related to the licensed activity. Such ordinances constifute implied conditions of the license. Furthermore, acts performed by empioyees or agents of the Licensee provide a basis for taking adverse action. The City alieges that Licensees have violated several express conditions of their Second Hand Motor Vehicle Dealer Licenses. The City further aNeges that Licensees have violated other City ordinances related to their licensed activities. The City has met its burden of proof in estabfishing thaf Licensees on several occasions violated the second and fourth express conditions placed on their licenses. The City has also met its burd�n in estabiishing that Licensees violated impiied conditions of their licenses by violating two city ordinances related to the licensed activity. The eye-witness testimony and photographic exhibits provided in evidence af the hearing by LIEP inspectors and a neighboring resident provided evidence su�cient to show fhat violations occurred. Adverse action against the Second Hand Motor Vehicle Dealer License held by Licensees is therefore appropriaYe. The Administrative Law Judge was persuaded that LIEP exp(ained fo Licensees the meaning of the express conditions prior to their signatures. The accompanying site plan ciearly illustrated what Licensees needed to do to comply with those conditions. Licensees agreed to abide by those reasonable conditions. The second license condition and, by reference, the site plan require that the designated "through access" area and the norther(y drive access onto Robert Street be maintained clear of vehicles. These requirements comprised a reasonable method to promote the safe flow of tra�c into and out of the Premises. Licensees violated both of those requirements on several occasions. First, Licensees allowed several vehicles, including their own, to completely or partially obstruct the fhrough access area. Second, Licensees allowed several of their "For sale" vehicies to completely obstruct the northerly access onto Robert Street. These two practices led to the complete obstruction of through access between Winona Avenue and Robert Street. Licensees contend that they are not violat+ng the through access condition because the vehicies parked in the through access area may be those of customers. TF�e fhrough access condition does not refer to the ownership status of fhe vehicles. However, from the language and the site plan, it is clear that the area must be maintained free of all vehicles. Regardless of vehicle ownership, 61 St. Paul Legisfafive Code § 310.06 (b) (5). 62 St. Paui Legislative Code § 310.06 (b) (6) (a). 63 St. Paul Legisiative Code § 310.17. �2 a a _ ��9 parking in the through access area impedes the safe movement of vehicles into and out of the premises. Obstruction of the th uor gh access creates a tra�c hazard that fhe condition was meant to prevent. Common sense suggeststhat the through access area must be kept open to enable vehicles to safely enter and leave the premises. In this light, the through access conditions cannot reasonably mean that fhe through access area may be used for customer parking. Licensees ciaim they cannot control where customers park. However, Licensees should have taken measures to enforce this license condition. Licensees cleariy violated the fourth express license condition prohibiting the parking of vehicles on the public boulevard of Winona Avenue. Licensees parked vehicles on the public boulevard on at least three different occasions or continuously during the winter and spring months of 4898-9999, Licensees continued to park vehicles on the public boulevard after they installed a chain barrier marking the area upon which parking was prohibited. The City Council should keep in mind that Licensees have violated the fourth license condition after being given written and verbal warning that parking vehicles on the boulevard was a violation. In addition, Licensees have violated implied license conditions by not complying with two City ordinances related to the business at the Premises. Licensees violated one implied license condition by not complying with the City ordinance stating as follows: [n]o person shall maintain or operate an automobile or motor vehicle repair garage in St. Paul without a license. This does not apply where the work performed is done by a gasoline filling station licensed under Chapter 424 and consists of the usual servicing of motor vehicles ordinarily performed at such stations, such as the sale and instailation of frost shields, radiator hoses, spark plugs, batteries and baftery cables, brake fluid, oil filters, fuses, fan belts, light buibs and windshield wipers, or such service as draining radiators; provided, however, that if such gasoline filling stations engage in the business of repairing mechanical parts of motor vehicles, a license as provided herein shall be required. Testimony from LIEP inspectors and neighbors showed that Licensees have repaired vehicies on the Premises. Licensees do not deny that they performed certain types of repairs on their own vehicles and that they do nof have a repair license. Licensees argue that making "minor" repairs to their own "For sale" vehicles pursuant to a sale does not require a separate repair license. Flowever, section 423.01 (a) makes no excepfion for such a situation. Section 423.01 (a) creates a specific exception only for the listed activities perFormed by a filiing station. Otherwise, a repair license is required to perform motor vehicle repair, i.e., those activities that would be performed at a"motor vehicle repair garage." The City Councii may wish to note that Licensees continued to repair vehicles without a repair license after being warned by LIEP that to do so was a violation of City ordinance. 64 St. Paul Legislative Code § 423.01 (a). 13 �q-`f�4 Within the City's B-2 Community Business District, "[a]II businesses, sforage, servicing or processing shall be conducted within completely enclosed buildings." The "ail. ..storage" provision includes the storage of auto paits. Licensees violated this ordinance by sforing their auto parts on the ground instead of inside an enclosed building. The City Counci! may wish to note that Licensees, after being told that this was a violation, did remove the parts from the grounds and no longer stored them outside. At the hearing, the City aHeged that Licensees placed a dumpster on the public boulevard. Licensees in fact did so. However, the City did not make clear upon what basis this act was a violation of the (icense conditions. The fourth license condition and the site plan refer specifically and exclusively to the prohibition of parking vehicles on the Winona boulevard, The fourth license condition was placed on the license to address the past history of parking vehicles on the boulevard. Furthermore, Licensees' dumpster arguabiy presents a substantialiy lesser obstruction to the boulevard than do vehicles. Therefore, it is not reasonable to apply the fourth ficense condition to the placement of a dumpster on the boulevard. Placing the dumpster on the boulevard did not violate Licensees fourth license condition. The Council may also wish to consider that the LIEP did not give proper notice to the Licensees that placing a dumpster on the boulevard violated Cify ordinance, The Notice of Hearing "shali state the issues involved or grounds upon which the adverse action may be sought or based." This particular aliegafion was not made in either the Notice of Violation or Yhe Notice of Hearing. The a!legation is not related to the fourth license condition. For these reasons, the City should not be able to raise the dumpster issue at hearing for the firsf time. Accordingly, the Administrative Law Judge has recommended no violafion be found on this issue. The City alleged, but did nat show by a preponderance of the evidence, that there were ever more than 40 vehicles on the premises. Although the evidence provided at the hearing showed that the "through access" area contained vehicles, that observation alone does not evidence that more than 40 vehicles were on the Premises. The congested appearance of the Premises appears to stem primarily from obstruction of the through access, rather than by the tota! number of vehicles on the Premises. It would have been a relatively simple and quick task to count the number of vehicles on the lot. The City has not adequately shown that Licensees have violated the first license condition. The City alleged that the easterly drive onto Winona Avenue was not removed and replaced by curb and gutter by September 9, 1998. The City further aileged that this work was not even completed by December of 1998. The City acknowledged that the work had been completed by the date of this hearing. The testimony and evidence presented by the Licensees at the hearing clearly established that the curb, gutter and sidewaik work was completed on September 14, 1998. This is also consistent with the City's own photographic evidence presented at the hearing which clearly showed that the drive was removed and replaced by gutter and sidewalk sometime during the fall of 1998. ss St. Paul Legislative Code § 60.533 (2). 66 St. Paui Legislative Code § 309.05 (b). 14 � � - �� Aithough the curb, gutter and sidewalk was p(aced less than two weeks beyond the September 1, 1998 deadiine, the Council may wish fo consider that the Licensees did complete the required work shortiy after the due date specifiet�"by the third license condition. It would be inappropriate to discipline the Licensees for this minor infraction. Based on its ailegafions, the City recomrnended a 60 day suspension of Licensees licenses. The Council may wish to consider the circumstances discussed in this Memorandum in determining whether the recommended 60 day suspension is of appropriate duration. The Administrative Law Judge believes that a 60 day suspension is too harsh a penalfy under the circumstances. The Council may also consider imposing a fine upon Licensees as an alternative to or in addition to the license suspension. The imposition of a fine would more likely ailow the Licensees to continue operating their family businesses. It appears to the Administrative Law Judge that the Licensees wanf to comply with the conditions and City ordinances in the future and be good citizens of their neighborfiood. A fine may be a more reasonab(e alternative fo a suspension which may put the Licensees out of business. The City aiso recommended modifying the license conditions to create a parking area for customers and additional areas for maneuvering of vehicles on the premises. The reason for imposing these conditions is not to penalize Licensees for past violations, but rather to alieviate vehic(e congestion on and around the Premises. The City Council may want to consider fhese recommendations that are contained in the record. • P.A.R/ _� l� 15 ORIGI�IAL Presented By Refened To RESOLUTION Council File # �( �- Q s'� Green Sheet # �r.� c�7 \1 Committee: Date 1 WI�REAS, the City of Saint Paul, Office of License, Inspections and 2 Environmental Protection (LIEP) initiated adverse action against the license of Mohammed 3 Abedi, d!b!a Import Auto Enterprises, Inc., and Mostafa Farzaneh Kia, dJbJa MFK Enterprises, 4 Inc., 830 South Robert Street, for violations of the conditions on the licenses; and 6 WHEREAS, an administrative hearing was held before Administrative Law Judge Phyllis 7 A. Reha on April 13, 1999 and June 22, 1999; and 9 WHEREAS, the administrative law judge issued her Findings of Fact, Conclusions of 10 Law and Recommendation on August 23, 1949; and 11 12 WfiEREA5, at the public hearing on September 22, 1999 the licensees did not appeaz nor 13 did they file exceptions to the Administrative Law Judge's Report; now therefore, be it 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 RESOLVED, that the Council of the City of Saint Paul, after due deliberation based upon all of the files, records and proceedings herein, including the documents and e�ibits submitted to the Administrative Law Judge, the Findings, Conclusions and Recommendarion of the judge as well as the Memorandum attached thereto, and such azguments as may have been made at the hearing, imposes the following adverse acfion against the second hand motor vehicle licenses held by Mohaunned Abedi, dfbla Import Auto Enterprises, Inc., and Mostafa Farzaneh Kia, dJbla MFK Enterprises, Inc., for the premises at 830 South Robert Street: 1) The licenses shall be suspended for a period of thirty days effective at 12:01 a.m.on November 3, 1999 and continuing until 11:59 p.m. on December 2, 1999, or in the alternative, the licensees shall pay a fine of $2,000, which fine shall be due on or before October 26, 1999. 2) An additional thirty day suspension shall be imposed, which suspension is hereby stayed for a period of eighteen (18) months on the condition that thexe be no further violations of the license conditions or violations of law during that period. 3) The condition on each of the licenses that pernuts the display of 40 cazs on the premises shall be amended to permit the display of no more than 20 vehicles for sa1e. —� 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 FURTHER RESOLVED, that in the event there is a violation of the conditions of the licenses, or of law, within the nea�t eighteen months, the stayed 30 day suspension will be �1 q' �� ixnposed upon the licensees using the following procedure: 1) The director of LIEP or his designee will execute an affidavit reciting on personal laiowledge the violation or violafions of the condirions of the licenses or of the law; and 2) Such aff davit shall be served on fl�e licensee; and 3) A resolution nnposing the stayed thirty days, specifying the beginning and ending dates of such suspension sha11 be prepared by LIEP, and the council sl�all place it on the neart available consent agenda for appropriate action; and 4) A copy of the resolution shall be served on the licensees. FURTHER RESOLVED, that the Findings of Fact and Conclusions of Law of the Administrative Law Judge shall be adopted and shall be attached and incorporated herein, by reference. A copy of this Resolution, as adopted, shall be sent by first class mail to the Licensees, their attorney and to the Administrarive Law Judge. ORIGINAL Requested by Department of: By: By: Appx By: Form Appsoved y City Attorn . By: G� ��+t � Approved by Mayor £or Submission to Council By: Adopted by Council: Date � ��_ �.Z ��°` \ Adoption Certified by Council Secretary City Virginia Palmer 9/29/99 � � TOTAL # OF SIGNATURE PAGES GREEN SHEET °(`f -°�F�� No 1�Jt�?�1 � �.,R,.��,� � ��.. _ ❑ �.,.� ❑ �«� _ ❑..�..�.�.. ❑..�,�,.a.a ❑w,�.�.»�.µ., ❑ (CL{P ALL LOCATIONS FOR SIGNATURE) Finalizing City Council action taken September 22, 1999: concerning adverse action against licenses held by Mohammad Abedi, dba Import Auto Enterprises, S30 Robert Street AI. PLANNING COMMISSION CIB COMMI7TEE CIVIL SERVICE COMMISSION Has tnie veraoiwm, ever waMea wwer a CaNa�t ta mis department? YES NO Has this oewrnrfirm ever been a aYV omPbvee� YES NO Dces ih(s pereorilfi�m p�c a slGl na �qrmalypoesessed by any ammt tlty empbyce? YE3 !10 k Mis P�rm a tarpefetl ventlof! YES NO AMOUNT OF TRANSACTION 1 COtT/REVENUE BUOfiETEA {CIRCLE ON� YES NO FUND1916 SOURCE FINANCULL MFORMATON (IXPWf� ACTIYtTY NURIBER OFFICE OF THE CITY ATTORNEY Claytan M. Rabinron, Jr., City At�orney �0 CITY OF SEIINT PAUL Norm Cofeman, Mayar Civi! Divisron 400 Ciry Ha[! IS !3'est KelloggBlvd. Saint Paul, ,Ltinnesota 55/02 Telephone: 651266-87! 0 Facsimi(e: 657 298-5619 September 8, 1999 NOTICE OF COUNCIL HEARING Mr. Bemard J. Robichaud Robichaud & Nepp 402 Towle Building 330 Second Avenue South Minneapolis, Minnesota 55401 -- 1 1 ' �� l RE: In the matter of the licenses held by Mohammad Abedi d/6/a Import Auto Entexprises, Inc. and Mostafa Farzaueh Kia d/b/a MFK Enterprises, Inc. For the premises located at 830 Robert St. N. in St. Paul License ID No.s: 19970000049 and 57957 Our File Number: G99-0058 Dear Mr. Robichaud: Please take notice that a hearing on the report of the Admisustrative Law Jud�e conceming the above-mentioned license has been scheduled for 5:30 p.m:, Wednesday, September 22, 1999, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opportunity 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 Heazing. No new evidence will be received or testimony taken at this heazing. The Council wi11 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, `��u,t,c� (.�. ��o�C �-t Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Community Organizer, West Side Citizens Organi2ation,127 �Vinifred St. W., St. Paul, MN 55107 9-2111-12117-3 STATE OF MINNESOTA - �� OFFICE OF ADMINISTRATlVE HEARINGS FOR THE C1TY OF ST. PAUL {n the Matfer of the Second Hand Motor FiNDiNGS OF FACT. Dealer Licenses of Mohammed Abedi, CONCLUSlONS OF LAW d1b/a Import Auto Enterprises, 1nc. and AND RECOMMENDATION Mostafa Farzaneh Kia, d!b(a MFK Enterprises, Inc. The above-entitfed matter came on for hearing before Administrative Law Judge Phyllis A. Reha on April 13, 1999, at 9:30 a.m. in Room 41, St. Pau{ City Hali, 15 West Kellogg Boulevard, St. Paul, Minnesota. The hearing was continued and conciuded on June 22, 1999 at the same location. Virginia D. Palmer, Assistant St. Paul City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paui, Minnesota, appeared on behalf of the City of St. Pauf ("City"). The Licensees Mohammed Abedi, owner of Import Auto Enterprises, Inc. and Mostafa Farzaneh Kia, owner of MFK Enterprises, lnc. appeared on their own behalf without counse{ at the April 13, 1999 hearing. Bernard J. Robichaud, Jr., Attorney at Law, 402 Towle Building, 330 Second Avenue South, Minneapolis, MN 55401, appeared representing both Licensees at the hearing on June 22, 1999. The hearing record closed on July 23, 1999 upon receipt of the City's Reply Memorandum. NOTICE This Report is a recommendation, not a final decision. The City Council will make the final decision in this matter, after its review of the record. The City Council may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendation contained herein. Pursuant to § 310.05 of the St. Paul Legislative Code, the City Council will afford the Licensees an opportunity to present oral or written arguments to it prior to taking final action. The Licensees should contact Virginia Palmer to determine the procedures for fifing such argument or appearing befiore the City Council. STATEMENT OF ISSUE The issues in the proceeding are whether the Licensees violated the conditions of their Second Hand Motor Vehicle Dealer Licenses by: 1. Failing to comply with any of the express conditions placed upon their iicenses; or 2. Fai�ing to comply with other City ordinances reasonably related to the ficenses; and ��-�� 3. Whether the City Councif can take adverse action for such violations pursuant to St. Paul Legislative Code _ §310.06(a) and (b). : r Based upon all of the proceedings herein, the Adminisfrafive Law .ludge makes the following: FINDINGS OF FACT 1. Mohammed Abedi and Mostafa Farzaneh Kia own Import Auto Enterprises ("{mport Auto") and MFK Enterprises, Inc. ("MFK"), respectively. Import Auto and MFK are both locafed on premises at 830 South Robert Street, St. Paul, Minnesota. (Hereinafter referred to as "the Premises"). 2. Mr. Abedi and Mr. Kia are in the business of selling second hand vehicles at the Premises. 3. Mr. Kia d/b/a MFK holds Second Hand Motor Vehicle Dealer License No. 0057957 to do business at the Premises.� f�1r. Abedi d/b/a Import Auto holds Second Hand Motor Vehicle Dealer License No. 19970000049 to do business af the Premises Z 4. The Premises occupies a rectanguiar area at the southeast corner of the intersection of South Robert Street and Winona Avenue in the City of St. Paul. A single building, design�d originally as a service station, is located in about the center of the Premises. The building has two bays that may be used to repair vehicles. The remainder of the Premises consists of open ground suitable for parking vehicles. The open ground is used primariVy to dispfay Licensees' vehicles that are for sale. In December, 1997, the Premises had two driveway accesses onto South Robert Street and two onto Winona Avenue. 5. The Premises has been a long time source of complaints from neighboring residents. Complaints were received by the Office of License, Inspections and Environmental Protection ("LIEP") when the Premises was owned by previous licensed second hand vehicfe dealers. The primary complaints were: (1) "For sale" vehicles were on the public boulevard between the curb of �nona Avenue and the Premises; (2) "For sale" vehicles were parked on Robert Street and Winona Avenue; (3) vehicies (presumably those of customers) were parked on Winona Avenue so as to block private driveways; and (4) an excessive number of vehicles were on and near the Premises, resulting in traffic congestion. 6. The LIEP reviews license applications, and issues and enforces City licenses. Lawrence Zangs and Margaret Fuller are zoning specialists empfoyed by LiEP. 7. On September 27, 1995, Mr. Kia on behalf of MFK filed an appiication for a new Second Hand Motor Vehicle Dealer License to sell second ' City Exhibit No. 1. Z City Exhibit No. 3. 3 Transcript pages 18-19. 2 ��-�� hand vehicles at the Premises 4 Shortly thereafter in 1995, LIEP issued a Second Hand Motor Vehicle Dealer License to Mr. Kia d/b/a MFK fo seli second hand vehicles at the Premises 5 .. 8. In late 1997, Mr. Abedi d/b/a Import Auto appiied for a separafe Second Hand Motor Vehicle Dealer License to sell second hand vehicles at the Premises. Mr. Zangs considered it unusual for iwo second hand motor vehicle dealer businesses to operate at the same site. Mr. Zangs was particularly concerned about the potential for an excessive number of vehicles on the Premises resulting from the concurrent operation of two motor vehicle businesses at the same location � 9. In December, 1997, Mr. Zangs twice visited the Premises as part of reviewing Mr. Abedi's license application. Mr. Zangs in early December observed "For sale" vehicles parked on the public boulevard between the curb of Winona Avenue and the Premises. At this time there was not an express condition prohibiting this practice placed on Mr. Kia's license. Mr. Zangs visited the Premises again later in December of 1997. Based on his observations of the Premises, Mr. Zangs proposed a set of license conditions to which both Licensees at that Premises must abide. Mr. Zangs' primary purpose in imposing the license conditions was to contain Licensees' vehicles on the Premises, thus mitigating the impact of Licensees' business activity on the surrounding community, especially those activities associated with prior citizen complaints. Mr. Zangs believed that his restrictions would accomplish that purpose. 10. In conjunction with the express conditions, Mr. Zangs prepared a "site plan." The site pian is a scale drawing of the Premises depicting the location of the building, the driveway accesses, and the dimensions of the Premises. The site plan further iffustrated the meaning of the express conditions. 11. On January 2, 1998, Mr. Zangs met with Mr. Abedi and Mr. Kia and explained to them the proposed conditions set fcrth in the January 2, 1998 ietters addressed to Licensees. Identical letters were sent to Mr. Kia and to Mr. Abedi.�� Pursuant to their discussion, three changes to the proposed conditions were made by deleting certain words. Deletions were denoted by lining out the words to be deleted. Mr. Zangs, Mr. Kia and Mr. Abedi approved each change by signing their initials next to each change. Mr. Kia and Mr. Abedi indicated their acceptance of the amended license conditions by signing their respective letters on January 2, 1998. ° City Exhibit No. 1. 5 7ranscript page 17. 6 Trenscript page 17. ' Transcript page 19. $ City Exhibit A-C. 9 Transcript pages 19-20. 10 City Exhibit 5. " City Exhibits 2 and 4. iz Id. 3 � -�t�� 12. Mr. Zangs, Mr. Kia and Mr. Abedi agreed that the following four express conditions be placed on the Second Hand Motor Vehicle Dea{er Licenses of both MFK and Import Auto: 1. The number of vehicles on the lot at any one time be limited to 40. 2. A drive lane shall be maintained open for through vehicle access as shown on the site pian. 3. The easterly drive on Winona Avenue must be removed and restored with curb and gutter to City specifications. The driveway removal and restoration work must be done by September 1, 1998 with a permit from the St. Paul Public Works Division. 4. Vehicles shall not project into or be parked in the public rights-of-way on Robert Street and Winona Avenue. A post and chain barrier or similar vehicle restraint device must be installed along the property line on Winona to prevent encroachment into the public area.� 13. The first, second and fourth license conditions expressly referred to the site pian to clarify the meaning of the language. 14. The 4etters of January 2, 1998 did not specify that violation of these conditions would result in adverse action against license. 15. On Januar�r 2, 1998, Mr. Zangs approved the accompanying "site plan" for the Premises.' The site plan: 1) delineated by dash lines five specific areas on the Premises where vehicles could be parked; 2) specified the maximum number of vehicies to be parked in each area; 3) delineated an area on the Premises in which "through access" from Robert Street and Winona Avenue must be maintained by proh+bit+ng the parking of vehicles in that area; 4) stated that vehicies may not be parked in the northerly access drive onfo Robert Street; 5) stated that parking on the public boulevard between Winona Avenue and the property line of the Premises was prohibited; 6) specified fhat the westerly drive access onto Winona Avenue be removed and replaced wifh curb and gutter; 7) showed where a barrier to cieariy mark the Premises from the public boulevard was to be instailed. Mr. Zangs approved the pfan by signing his initiais upon it. 16. The first, second and fourth express conditions specifically refer to the site plan described in F'inding 15 above. The letter signed by Licensees also refers to the site plan. 17. The specific parking areas were based on Mr. Zangs' judgment of where vehicies could be parked. The number of cars permitted in each area was based on its physicaf dimensions. The main purpose for maintaining the through �4 City Exhibit 2, 4; see attached site plan for parking layout acceptable to the City. City Exhibit 2, 4; see site plan for location. 75 City exhibit 2, 4. 76 City exhibit 5. i� r a '�� access was to minimize traffic hazards. The through access was designed to provide room to maneuver vehicles on the Premises so that vehicles need not back out onto the City streets. The purpose of closing the easterly driv��on Winona was to remove the commercial access to the Premises away from�the adjoining residenfial area. The purpose of the chain barrier was to clearly demarcate the boundary between the Premises and the public area, thereby cleariy showing where Licensees' vehicles couid and could not be parked. This last condition specificaily addressed the past problems of vehicles being parked on the public boulevard of Winona Avenue." 18. The site plan did not expressiy prohibit the parking of Licensees "For sale" vehicles on Winona Avenue or Robert Street. Mr. Zangs intended that there be no parking of "For sale" vehicles on Winona Avenue or Robert Street. Mr. Zangs believed that the public right-of-way includes the area occupied by the public street plus the area extending from the street curb to the private property line; the license condition specifying no parking on the public right-of-way included prohibiting parking of "For sale" vehicies on Winona Avenue or Robert Street.' 19. The letters dated January 2, 1998 containing the specified conditions advised Licensees of past complaints received by LIEP regarding vehicles being parked on the pubiic boulevard on Winona Avenue. 20. On or around February 11, 1998, LIEP granted a Second Hand Motor Vehicie Dealer License to Mr. Abedi d!b/a import Auto. 21. Following the imposition of the express conditions on Licensees' licenses, LIEP received additional complaints concerning Licensees' business premises. The complaints were (1) that Licensees' "For sale" vehicles were parked on the public right-of-way; (2) that there was unauthorized repair of vehicles on the Premises; and (3) that they were an excessive number of vehicles on the Premises. 22. In response to these complaints, City Zoning Inspector Margaret Fuiler visited the Premises on September 17, 1998. She observed that: (1) the northerly access to Robert Street was completely obstructed by Licensees' vehicles; (2) a vehicle was parked in the pub{ic boulevard between Winona Avenue and the Premises (in the location illustrated by City exhibit 7d); (3) a person appeared to be doing repairs on a vehicle inside the building; (4) an engine and other junk parts were strewn about the open ground south of the buiiding; (5) a"junk" vehicle containing parts and supplies was parked on the Premises east of the building (in the "six car area"); (6) the ground northeast of the building was messy and contained junk vehicles. Ms. Fuller did not record any observations regarding the easterly drive onto Winona Avenue? " Transcript pages 27-31. M1B Transcript pages 30-31. t9 City Exhibits 2 and 4. 20 Transcript page 17; City Exhibit 3. 21 Transcript page 32. 22 Transcript page 77-80. 4'1 � � � / i 23. On September 17, 1998, Ms. Fuller informed Mr. Abedi that storage of vehicie parts outside on the ground was prohibited by B-2 Zoning District Ordinance. Since the Premises is in a B-2 Zoning District, Licensees were t#�us in violation of the storage ordinance. Ms. Fuller explained to Mr. Abedi that even though zoning code requirements are not an express condition of his license, he must comply with zoning codes as weil. 24. Ms. Fuller mailed a"Code Enforcement Notice" dated October 26, 1998 to Licensees at 830 South Robert Street. The notice advised Licensees that the LIEP had received citizen complaints regarding alfeged violations of license conditions. The notice listed the four conditions placed on Licensees' licenses and stated fhat Licensees were obligated to comply with them. The notice informed Licensees that the exterior storage of auto parts, oil, and uniicensed inoperabie vehicies is not allowed in a B-2 zoning district. The notice stated that the Licensees could not repair vehicles without a separate repair license. Finally, the notice warned Licensees that the Premises would be reinspected for compliance after November 2, 1998. 25. Licensees removed the junk car and vehicie parts after receiving the enforcement notice, and they now store vehicle parts in accordance with the zoning ordinance. 26. On December 10, 11 and 22, 1998, Mr. Zangs visited the Premises in response to continuing complaints received by LIEP. He documented some of his observations of the Premises by taking photographs. 27. On December 10, 1998, Mr. Zangs observed that a chain and post barrier now separated the Premises from the public boulevard on Winona Avenue in accordance with the earlier conditions placed upon the Licensees' licenses. However, one of Licensees' vehicles was parked between the chain barrier and the curb of Winona Avenue. There were also a number of vehicles parked in the through access area. In addition, Licensees' "For sale" vehicles were parked across the entire width of the northerly drive onto Robert Street. The Premises thus had inadequate maneuvering area and only a single access onto the Premises. These circumstances would force vehicles puiling into the Premises to back out onto Winona Avenue. Mr. Zangs believed this situation posed a tra�c hazard. From his vehicie, Mr. Zangs believed he observed that the easterly drive onto Winona Avenue was not removed, and that vehicles were parked in the driveway. Aithough Mr. Zangs did not count the vehicies on the lot, he presumed that there were greater than 40 vehicles on the Premises based on the general arrangement of the vehicles. 28. On December 11, 1998, Mr. Zangs again visited the Premises. He observed Licensees' vehicles parked between the chain barrier and the curb of Winona Avenue. Licensees' vehicles blocked the through access lane entering Z3 Transcript page 77. 24 Ciry exhibit 8. ss Id. 26 Transcript 60-61. Z ' Transcript pages 37-41; City exhibit 7a. 28 City exhibits 7b, 7c and 7d. � �t�-��9 onto Winona Avenue 2 Licensees' vehicies blocked the northeriy drive onto Robert Street. 29. On December 11, 1998, Licensees' trash dumpster was located in the public boulevard between the curb of Winona Avenue and the Premises. Mr. Zangs believed the dumpster was an obstruction of the public right-of-way on Winona Avenue 3Z 30. On December 11, 1998, a van containing windshields was �parked on Winona Avenue in front of the Premises with its cargo doors open. 3 Mr. Zangs observed windshields inside fhe van, leading him to believe that installation of windshields may be occurring on fhe Premises. Mr. Zangs believed that the installation of windshields constituted the repairing of vehicles. He believed further that City ordinance prohibited repairing vehicles without a license. 31. The license conditions required the compietion of the curb and gutter by September 9, 1998. On or about September 14, 1998, the curb, gutfer and sidewaik was installed by D&S Trucking of 8urnsville, Minnesota. 32. On February 10, 1999 the Assistant City Attorney served upon both Licensees a Notice of Violations. The notice recommended that adverse action be taken against Licensees based on allegations that Licensees had violated several conditions of their licenses. The notice alleged specific incidents related to parking vehicles on the Premises and on the boulevard of Winona Avenue, unauthorized repair of vehicles, storage of parts outside, and non-removal of the easterly drive onto Winona Avenue. Placement of the dumpster on the Winona boulevard was not specified in the Notice of Violations. 33. Barbara Munos lives at 822 South Robert Street, which is located across Winona Avenue from the Premises. Ms. Munos can view the Premises from her property. She has observed the Premises from her residence and nearby streets. She observed fhe sfafe of fhe Premises and documented those observations by� taking photographs from the period September of 1998 through March of 1999. 9 34. In the fall of 1998, Ms. Munos made severai observations regarding the Premises. Several vehicles, including those of Licensees, were parked in the through access area of the Premises and across the northerly drive onto Robert Street. Licensees' car and dumpster were on the public boulevard of Winona 29 City exhibits 7b and 7c. 30 City exhibits 7c, 7e and 7f. " Ciry exhibits 7b and 7c. 3Z Transcript pages 41-42. 33 Ciry exhibit 7d. 3a Transcri t ss P Pa9es 44-45. City exhibit 7d, 7c, 11 c— 17, 11 c- 18; Respondent exhibit A. 36 City exhibit 9. 37 �d. 38 City exhibit 5. 39 Transcript pages 85-87. 40 City exhibits 11a (2); 11 b(9); 11c (18); 15 and 17. 7 ��- �8`� Avenue 4 Licensees' "For safe" vehicles were parked on Robert Street ad'acent to the Premises.42 � 35. Ms. Munos observed Licensees parking some of their "For sale" vehicies on the streef during the day, removing the price tags from view and placing them on the seat. 36. Ms. Munos observed Licensees, at the end of fhe day, removing the vehicles from the streefs, parking fhem on the premises, and reaffixing the price tags. 37. In March of 1999, Ms. Munos observed what she believed to be repair work on a car inside the building on Licensees' Premises. She observed a vehicle elevated from the floor of the building (ocafed on Licensees' Premises 4s 38. Ms. Munos observed that a vehicle was parked continuously on the Winona Avenue boulevard from the fa(( of 1998 to the spring of 1 ggg, 39. Licensees considered the installation of windshields or other minor repairs performed only for Licensees' customers to be part of the purchasing of the vehicle not requiring a separate repair license 4 Neither MFK nor Import Auto have an auto repair license. 40. Licensees placed a dumpster on the public boulevard because the refuse hauler would not empty the dumpster if placed on the Premises. 41. On February 26, 1999, the City Attorney sent to Licensees a Notice ot' Hearing by first class mai( 4 7he notice informed Licensees of alleged violations to the Licensees' conditioned licenses as a result of compiaints filed with LIEP, The notice essentially restated the aliegations made in fhe initial Notice of Violation dated February 10, 1ggg, 42. The hearing notice set forth the hearing date of April 13, 1999 at St. Paul City Hall, SY. Paul, Minnesota, before Administrative Law Judge Phyllis A. Reha. The Notice of Hearing also provided that the hearing would be conducted in accordance with the requirements of Minn. Stat. § 14.57 — 14.62 and such parts of the procedures under § 310.05 of the St. Paul Legislative Code. ft furfher provided notice to the Licensees that they should bring to the hearing all documents, records and witnesses that they would or might need to support their pasition. The procedure for subpoenas was explained as well as the right to be represented by an attorney before and during fhe hearing or that the Licensees could represent themselves. °' City exhibit 11a (6, 7j; 11b (9); 11c (17); and 17. 42 City exhibit 11a (1, 6); 11b (9, 18); 11c (i8); and 17. 43 City exhibit'11b (9). 44 Transcript pages 93-94. 45 City exhibits 11a (2); 11a (4); and 12. 46 Ciry exhibits 14, 15. `� Kia testimony, June 22, 1999. 4e Kia testimony, June 22, 199g. 49 City exhibit 10. so City exhibit 9. 57 City exhibit 10 page 3. 0 a�-�Y� 43. The hearing went forward as scheduled o� April 13, 4999 with the Licensees representing themselves without benefit of legal counsel. At- the conclusion of the City's case-in-chiet, the Licensees made a motion to conEinue the hearing so that they could secure legai representation. The City did not object to the continuance motion being granted as long as the continuance would be granted for no longer than a two week period to enable Licensees to consult wifh an afforney. Once Licensees hired an attorney, the City would not object fo a further continuance, if requested, to permit Licensees to obfain a transcript and prepare for the hearing. The City further requested that it not be required to resubmit its entire case and re-offer its test+mony as evidence. The Administrative Law Judge granted the motion for continuance upon the stipulations set forth by the City. The City then witi�drew its objection to the continuance request. 44. 7he Respondents secured legal counsel within the two week period stipulated to at the conclusion of the hearing on Aprif 13 by legaf counsef submitting his Notice of Appearance to the Administrative Law Judge on April24, 9999. At the request of counsel for the Licensees, the hearing was continued to June 22, 1999 and concluded on that date. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. The Administrative Law Judge and the City Council of the City of Sf. Paul have jurisdiction in this matter pursuant to Minn. Stat, § 14.55 and St. Paul Legislative Code §§ 310.05 and 310.06. 2. The Notice of Hearing was proper in all respects and the City has complied with all other substanfive and procedural requirements of law or rule. 3. A Licensee may have imposed upon its ticense reasonable conditions for the purpose of promoting public health, safety and welfare. 4. The City of St. Paul has the burden of proof in this adverse action and must prove its case by a preponderance of the evidence. 5. The City may consider suspension of Licensees' Second Hand Motor Vehicle Dealer License. &. The City may also consider fhe imposifion of fines. SZ Transcript page 173. s ' Transcript page 171. 54 Transcript page 171. ss St. Paul Legislative Code § 310.06 (c). s6 In Re: Kaldahl, 418 N.W.2d 532, 535 (Minn. Ct. App. 1988).; Minn. Rules 1400.7300, subp. 5. 57 St. Paui Legislative Code § 310.06 (a) and (b). 58 St. Paul Legislative Code § 310.05 (I). 9 �1� -��'� 7. The express conditions piaced upon Licensees' Second Hand Motor Vehicle Dealer Licenses were reasonable limitations at the time they were imposed. _. 8. The express conditions were voluntarily agreed to by Licensees. 9. The public right-of-way on Winona Avenue and Robert StreeY includes the portion of the City street upon which vehicles travel and the area extending from the street curb to the privafe properEy line. Specifically, fhe public boulevard is the area between the street curb and the private property line. 10. A Second Hand Motor Vehicle Dealer License does not authorize repair of vehicles. �icensees must have a separate genera( repair license to make repairs on their vehicles. 11. On September 17, December 10 and December 11, 1998, and sometime during the fall of 1998, Licensees violated the first license condition by completely obstructing the northerly access onto Robert Streef wifh their vehicles. 12. On December 10, and December 11, 1998, Licensees violated the second license condition by allowing vehicles to obstruct the through access area on the Premises. 13. On September 17, December 10 and pecember 91, 1998, and in January or February 1999, and continuously from the winter to the spring of 1999, Licensees vio(afed fhe fourth license condition by parking their vehicles on the public boulevard of Winona Avenue. 14. By September 14, 9998, Licensees complied with the third express condition by removing the easteriy driveway on Winona Avenue and installing curb, gutter and sidewalk. The third license condition required installation of the curb and gutter by September 1, 1998. 15. Licensees must comply with City ordinances reasonably related to the license activity. Specifically, the City ordinances applicable to this matter concern B-2 zoning requirements, obsfruction of the public right-of-way, and licensure requirements for aufo repair. 16. On September 17, 1998, Licensees violated an implied condition of their license by not complying with City B-2 Zoning Ordinance requiring the storage of auto parts inside a building. Licensees violated fhe ordinance by storing auto parts on the ground. 17. On several occasions, Licensees have violated an implied condition of their license by not complying with the City ordinance requiring a specific license to perForm repairs upon vehicles. Licensees violafed the ordinance by performing minor auto repairs on the Premises without such a license. 59 St. Paul Legislative Code § 423.01 which prohibits any person from maintaining or operating an automobiie repair garage without a Iicense. 6o St. Paut Legislative Code § 310.06 (b) (6) (a). 90 c�� -�d'9 '18. On September 17 and December 19, 1998, Licensees violated an implied condition of their license by violating the City ordinance prohibiting the piacing of objects in fhe public right-of-way. Licensees violated the ordinance�by placing a dumpster on the public boulevard of Winona Avenue. However, Licensees were not given proper notice of this violation prior to the hearing thus, no adverse action shail be taken upon the Licensees as a result of fhis violation. 19. As a consequence of Conclusions 11-17, it is appropriate to take adverse action against Licensees. Adverse action may include imposing a license suspension, a fine, or both. 20. The foregoing Conciusions are made for fhe reasons set forth in the Memorandum which follows, which is hereby incorporated in these Conclusions by reference. Based upon the foregoing Conclusions, the Administrative Law Judge makes the foliowing: RECOMMENDATION IT IS HEREBY RECOMMENDED: that the St. Paul City Council take adverse action against the Second Hand Mctor Vehicle Dealer Licenses of Mohammed Abedi, d/b/a Import Auto Enterprises, Inc., and Mostafa Farzaneh � Kia, d/b/a MFK Enterprises, Inc., at 803 South Robert Street, St. Pauf, Minnesota. Dated this a�� day of August, 1999. -��u�.�'P�- 2. ��',._ PHYL'LIS A. REHA Administrative Law Judge Reported: Transcript (1 volume) Brennan & Associates (April 13, 1999 hearing} Taped: (3 cassettes) NOTICE (t is respecifuffy requested that the City Council provide a copy of its final decision to the Administrative Law Judge by frst class mail. MEMORANDUM This proceeding is an enforcement action proposing suspension of Licensees' Second Hand Motor Vehicie Dealer Licenses. The burden of proof is 91 �� on the City to.prove by a preponderance of the evidence that Licensees have violated conditions of their Second Hand Motor Vehicle Dealer Licenses and that suspension or a fine is warranted. __ 7he City is authorized to take adverse action against the licenses it issues. An appropriate basis for taking adverse acfion is wfiere a Licensee fails to comply with any condition set forth in the license 6 Another appropriate basis for taking adverse action is where a Licensee violates any provision of an ordinance reasonably related to the licensed activity. Such ordinances constifute implied conditions of the license. Furthermore, acts performed by empioyees or agents of the Licensee provide a basis for taking adverse action. The City alieges that Licensees have violated several express conditions of their Second Hand Motor Vehicle Dealer Licenses. The City further aNeges that Licensees have violated other City ordinances related to their licensed activities. The City has met its burden of proof in estabfishing thaf Licensees on several occasions violated the second and fourth express conditions placed on their licenses. The City has also met its burd�n in estabiishing that Licensees violated impiied conditions of their licenses by violating two city ordinances related to the licensed activity. The eye-witness testimony and photographic exhibits provided in evidence af the hearing by LIEP inspectors and a neighboring resident provided evidence su�cient to show fhat violations occurred. Adverse action against the Second Hand Motor Vehicle Dealer License held by Licensees is therefore appropriaYe. The Administrative Law Judge was persuaded that LIEP exp(ained fo Licensees the meaning of the express conditions prior to their signatures. The accompanying site plan ciearly illustrated what Licensees needed to do to comply with those conditions. Licensees agreed to abide by those reasonable conditions. The second license condition and, by reference, the site plan require that the designated "through access" area and the norther(y drive access onto Robert Street be maintained clear of vehicles. These requirements comprised a reasonable method to promote the safe flow of tra�c into and out of the Premises. Licensees violated both of those requirements on several occasions. First, Licensees allowed several vehicles, including their own, to completely or partially obstruct the fhrough access area. Second, Licensees allowed several of their "For sale" vehicies to completely obstruct the northerly access onto Robert Street. These two practices led to the complete obstruction of through access between Winona Avenue and Robert Street. Licensees contend that they are not violat+ng the through access condition because the vehicies parked in the through access area may be those of customers. TF�e fhrough access condition does not refer to the ownership status of fhe vehicles. However, from the language and the site plan, it is clear that the area must be maintained free of all vehicles. Regardless of vehicle ownership, 61 St. Paul Legisfafive Code § 310.06 (b) (5). 62 St. Paui Legislative Code § 310.06 (b) (6) (a). 63 St. Paul Legisiative Code § 310.17. �2 a a _ ��9 parking in the through access area impedes the safe movement of vehicles into and out of the premises. Obstruction of the th uor gh access creates a tra�c hazard that fhe condition was meant to prevent. Common sense suggeststhat the through access area must be kept open to enable vehicles to safely enter and leave the premises. In this light, the through access conditions cannot reasonably mean that fhe through access area may be used for customer parking. Licensees ciaim they cannot control where customers park. However, Licensees should have taken measures to enforce this license condition. Licensees cleariy violated the fourth express license condition prohibiting the parking of vehicles on the public boulevard of Winona Avenue. Licensees parked vehicles on the public boulevard on at least three different occasions or continuously during the winter and spring months of 4898-9999, Licensees continued to park vehicles on the public boulevard after they installed a chain barrier marking the area upon which parking was prohibited. The City Council should keep in mind that Licensees have violated the fourth license condition after being given written and verbal warning that parking vehicles on the boulevard was a violation. In addition, Licensees have violated implied license conditions by not complying with two City ordinances related to the business at the Premises. Licensees violated one implied license condition by not complying with the City ordinance stating as follows: [n]o person shall maintain or operate an automobile or motor vehicle repair garage in St. Paul without a license. This does not apply where the work performed is done by a gasoline filling station licensed under Chapter 424 and consists of the usual servicing of motor vehicles ordinarily performed at such stations, such as the sale and instailation of frost shields, radiator hoses, spark plugs, batteries and baftery cables, brake fluid, oil filters, fuses, fan belts, light buibs and windshield wipers, or such service as draining radiators; provided, however, that if such gasoline filling stations engage in the business of repairing mechanical parts of motor vehicles, a license as provided herein shall be required. Testimony from LIEP inspectors and neighbors showed that Licensees have repaired vehicies on the Premises. Licensees do not deny that they performed certain types of repairs on their own vehicles and that they do nof have a repair license. Licensees argue that making "minor" repairs to their own "For sale" vehicles pursuant to a sale does not require a separate repair license. Flowever, section 423.01 (a) makes no excepfion for such a situation. Section 423.01 (a) creates a specific exception only for the listed activities perFormed by a filiing station. Otherwise, a repair license is required to perform motor vehicle repair, i.e., those activities that would be performed at a"motor vehicle repair garage." The City Councii may wish to note that Licensees continued to repair vehicles without a repair license after being warned by LIEP that to do so was a violation of City ordinance. 64 St. Paul Legislative Code § 423.01 (a). 13 �q-`f�4 Within the City's B-2 Community Business District, "[a]II businesses, sforage, servicing or processing shall be conducted within completely enclosed buildings." The "ail. ..storage" provision includes the storage of auto paits. Licensees violated this ordinance by sforing their auto parts on the ground instead of inside an enclosed building. The City Counci! may wish to note that Licensees, after being told that this was a violation, did remove the parts from the grounds and no longer stored them outside. At the hearing, the City aHeged that Licensees placed a dumpster on the public boulevard. Licensees in fact did so. However, the City did not make clear upon what basis this act was a violation of the (icense conditions. The fourth license condition and the site plan refer specifically and exclusively to the prohibition of parking vehicles on the Winona boulevard, The fourth license condition was placed on the license to address the past history of parking vehicles on the boulevard. Furthermore, Licensees' dumpster arguabiy presents a substantialiy lesser obstruction to the boulevard than do vehicles. Therefore, it is not reasonable to apply the fourth ficense condition to the placement of a dumpster on the boulevard. Placing the dumpster on the boulevard did not violate Licensees fourth license condition. The Council may also wish to consider that the LIEP did not give proper notice to the Licensees that placing a dumpster on the boulevard violated Cify ordinance, The Notice of Hearing "shali state the issues involved or grounds upon which the adverse action may be sought or based." This particular aliegafion was not made in either the Notice of Violation or Yhe Notice of Hearing. The a!legation is not related to the fourth license condition. For these reasons, the City should not be able to raise the dumpster issue at hearing for the firsf time. Accordingly, the Administrative Law Judge has recommended no violafion be found on this issue. The City alleged, but did nat show by a preponderance of the evidence, that there were ever more than 40 vehicles on the premises. Although the evidence provided at the hearing showed that the "through access" area contained vehicles, that observation alone does not evidence that more than 40 vehicles were on the Premises. The congested appearance of the Premises appears to stem primarily from obstruction of the through access, rather than by the tota! number of vehicles on the Premises. It would have been a relatively simple and quick task to count the number of vehicles on the lot. The City has not adequately shown that Licensees have violated the first license condition. The City alleged that the easterly drive onto Winona Avenue was not removed and replaced by curb and gutter by September 9, 1998. The City further aileged that this work was not even completed by December of 1998. The City acknowledged that the work had been completed by the date of this hearing. The testimony and evidence presented by the Licensees at the hearing clearly established that the curb, gutter and sidewaik work was completed on September 14, 1998. This is also consistent with the City's own photographic evidence presented at the hearing which clearly showed that the drive was removed and replaced by gutter and sidewalk sometime during the fall of 1998. ss St. Paul Legislative Code § 60.533 (2). 66 St. Paui Legislative Code § 309.05 (b). 14 � � - �� Aithough the curb, gutter and sidewalk was p(aced less than two weeks beyond the September 1, 1998 deadiine, the Council may wish fo consider that the Licensees did complete the required work shortiy after the due date specifiet�"by the third license condition. It would be inappropriate to discipline the Licensees for this minor infraction. Based on its ailegafions, the City recomrnended a 60 day suspension of Licensees licenses. The Council may wish to consider the circumstances discussed in this Memorandum in determining whether the recommended 60 day suspension is of appropriate duration. The Administrative Law Judge believes that a 60 day suspension is too harsh a penalfy under the circumstances. The Council may also consider imposing a fine upon Licensees as an alternative to or in addition to the license suspension. The imposition of a fine would more likely ailow the Licensees to continue operating their family businesses. It appears to the Administrative Law Judge that the Licensees wanf to comply with the conditions and City ordinances in the future and be good citizens of their neighborfiood. A fine may be a more reasonab(e alternative fo a suspension which may put the Licensees out of business. The City aiso recommended modifying the license conditions to create a parking area for customers and additional areas for maneuvering of vehicles on the premises. The reason for imposing these conditions is not to penalize Licensees for past violations, but rather to alieviate vehic(e congestion on and around the Premises. The City Council may want to consider fhese recommendations that are contained in the record. • P.A.R/ _� l� 15