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05-1062Council File # � �� Green Sheet # dcZ 0 �( RESOLUTION CITY OF SQINT PAUL, MINNESOTA � � � Presented By Referred To Committee: Date WIIEREAS, adverse action was initiated against all licenses held by WHT, Inc., d/b/a American Sport Cafe- Playground, which is also laiown as the "Warehouse" (License #)for the premises located at 2554 Como Avenue in Saint Paul, by Notice of Violation dated October 29, 2004; and WHEREAS, adverse action was based upon Saint Paul Legislaave Code §310.06(b)(8), which pemuts adverse action to be taken against a license where "[t]he ]icensed business, or the way in which such business is operated, maintains or permits conditions that unreasonably annoy, injure or endanger the safety, health, morals comfort or repose of any considerable number of inembers of the public; and WHEREAS, Licensee requested a hearing before an Administra6ve Law Judge, which was held on July 8 and July 11, 2005, afrer several continuances; and WHEREAS, Administrative Law Judge Richazd C. Luis took testimony, received exhibits and accepted written submissions in lieu of closing arguments, and issued his Report, with Findings of Fact, Conclusions and a Recommendation; and WHEREAS, the Report of the ALJ issued on September 16, 2005 found that the City had sustained its burden of showing that between June 13, 2003 and September 19, 2004 the Licensee "operated Warehouse Nightclub in a manner that maintain or pemuts conditions that unreasonably annoy, injure or endanger the safety, health, morals or comfort" of a considerable number of inembers of the public and that adverse action against the licenses was appropriate; and WHEREAS, the Office of LIEP recommended that the Licensee be fined $2,000, and tha[ seven conditions be placed on the license to prevent continued problems, and that the Licensee be required to pay a portion of the costs of the hearing, which amounted to in excess of $12,000; and WIiEREAS, Saint Paul I.egislative Code §310.05 (k) (iii) permits the council to impose "all or part of such costs" in any given case if the violation created a serious danger [o the public health, safety or welfaze; and WHEREAS, a public hearing was held on the AI,J Report on November 2, 2005; now, therefore be it RESOLVED, that the Findings of Fact, Conclusions of I,aw and Recommendation of the ALJ in this matter aze hereby adopted as the Findings and Conclusions of the City Council in this matter; and be it FURTf�R RESOLVED, that the Licensee is hereby ordered to pay a fine of $2,OOQ payable to the Of£ice of License, Inspections and Env'uonmental Protection within thuty days of the passage and approval of this resolution. Additionally, Licensee is ordered to pay the sum of $6,000 as partial costs of the hearing before the Administrative Law Judge, also to be paid within thirty days to the Office of LIEP. Further, the following conditions shall be placed upon the licenses held by WHT, Inc., d/b/a American Sports Cafe-Playgound: 1) That Licensee may not sponsor, advertise and/or host events for individuals under the age of twenty-one (21) such as "18 and up" nights, "college nights", "teen nights" or other such designations unless the events aze held in a portion of the establishment where liquor, including 3.2 malt, is not consumed sold or served, except in compliance with §409.08(22). The licensee will be responsible for insuring that individuals under the age of twenty-one (21) who enter to attend such events cannot gain access to an area where liquor is sold, served, permitted or consumed. Any advertisements in connection with such events must contain disclaimers that the events will be in an alcohol-free area of the establishment and that alcohol will not be sold or served to anyone under the age of twenty-one (21). �" ��Z 2) All customers must be wanded or must walk through a metal detector prior to entry. Weapons will not be permitted in the establishment. 3) The business wffi have surveillance cameras both inside and outside the establishment, which will be monitored at all times by Licensee. Equipment will be maintained in good working condition and all tapes will be kept for at least seven (7) days. Tapes will be immediately available to the police and/or license inspectors upon request. 4) The Warehouse wIll be closed to new customers after 1:00 a.m.. Last call for alcohol will be no later than 130 a.m. 5) Every customer entering the establishment must have ID, which will be checked prior to entry. Licensee is responsible for insuring that no individual under the age of twenty-one (21) is sold, served or fumished alcohol. 6) The licensee is responsible for patron behavior on the licensed premises, including the pazking lots, which affects the health, safety and welfaze of the public. 7) On nights when the club portion of the establishment is open the licensee will provide for staffing and monitoring of all unlocked enhances and exits durina the hours of 9:00 p.m. until closing, it being the intent that at all times indicated at least one employee of the licensee will be physically present at the unlocked enhances and exits to monitor patrons entering and exiting the establishment. This resolution and the acdon of the Council in this matter are based upon the exhibits, testimony and written submissions at the hearing before the Administrative Law Judge, the Report of the ALJ, and the azguments presented ro the Council at the public hearing on November 2, 2005. A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and to the attomey for the license holder. Requested by Department of: BY: � �T r_'S!"'� FoYm By: Adoption By: By: Adopted by Council: Date 1 1�,�� «o� ,��.1-' � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � Department/office/council: Date initiated: � ��+`�� LP — License/h�ypection/EnvironProt 04NOV-05 Green Sheet NO: 3028707 Contact Person & Phone: Vrginia D. Palmer 266-8710 Must BB on Council Aaen � Auign Number Por Routing Order 0 icense/In ection/Environ Pro 1 icense/Ins ection/EnvironPro De artmeutDirector 2 - Atto e 3 a or's Office Ma odAssistant 4 ouncil 5 i Clerk Ci C7erk Total # of Signature Pages _(Clip AII Locations for Signature) Action Requested: � , Approval of the amched resolution memorializiug adverse action taken against all licenses held by WHT, Inc., d/b/a American Sport Cafe-Playground (License ID#19990006821) for the premises located at 2554 Como Avenue in Saint Paul. idations: Approve (A) or F Planning Commission CIB Committee Civil Service Commission Personal Service Following Questions: 1. Has this person/firm ever worked under a contract for this department? Yes No 2. Has this personffirm ever been a city employee? Yes No 3. Does this person/firm passess a skill not normally possessed by any current city employee? Yes No Explain all yes answers on separete sheet and attach to green sheet lnitiating Problem, Issues, Opportunity (Who, What, When, Where, Why): � A Public Hearing was held on November 2, 2005, to discuss the Adminishative Law Judge's Findings of Fact, Conclusions and Recoxnmendations from the Administrarive Hearings held on July 8 and July 11, 2005. Advantas�es If Approved: Memorialization of CouncII action taken as a result of the Public Hearing. Disadvanpges If Approved: None Disadvantages if Not Approved: No memorialization of Council actioh taken as a resuk of the Public Hearing. - otal Amount of Transaction: Funding Source: Fi nancial Infortnation: (Ezplain) CosURevenue Budgeted: Activity Number: Po i� "' "'°.r,..�.y� 6o�.h��sa �a,.c;...�.. .. i 1 1' ��I�(�7 CIT'Y OF SAINT PAUL Randy C. Kelly, Mayor October 3, 2005 OFFICE OF Tf� CITY ATTORNEY ManuelJ Cervarztes, CityAttoraey 05 IOI�Z CivilDivrsion 400 Ciry Hal1 Telephone: 657 266-87I0 ISWestKel[oggBlvd. Facrimile:6i7298-5679 Saint Paul, �nnesot¢ 55102 NOTICE OF COUNCIL HEARING Mr. Steven Foss American Sports Cafe 2554 Como Avenue Saint Paul, MN 55108 RE: All licenses held by WHT, Inc., d/b/a American Sports Cafe - Playground for the premises located at 2554 Como Avenue in Saint Paul LicenseID # 19990006821 OAH Docket No. 7-6020-16362-2 Please take nofice that a hearing on the report of the Administrafive 3.aw Judge concerning the above-mentioned licenses has been scheduled for 5:30 p.m., Wednesday, November 2, 2005, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opporlunity to file exceptions to the report with the City Clerk at any time during normal bnsiness hours. You may also present orai or written azgument to the council at the Hearing. No new evidence will be received or testimony taken at this hearing. The Council will 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 pemutted by law in the exercise of its judgement and discretion. Sincerely, vG � �Gtil-.�.� Virgini�r Assistant City Attorney �' a . F��,^-�9'd;�7 ��"1°�P � �T a 4 2��5 cc: Diane Nordstrom, Office of Administrarive Hearings, 100 Washington`Squaze, Suite 1700, Minneapolis, MN 55401 Janeen Rosas, Director of LIEP Christine Rozek, Deputy Director of LIEP Mary Erickson, Assistant Council Secretary, 310 City Hall Mr. Steven Foss, 2140 Bazclay Street, #106, St. Paul, M1V 55109 Mr. Richard Scattergood, Rider & Bennett, 33 South Sixth Street, Suite 4900 Minneapolis, MN 55402 Mr. Richazd T. Franks, Rider & Bennett, 33 South SiYth Street, Suite 4900 Minneapolis, MN 55402 Ms. Melissa Mathews, Executive Director, St. Anthony Park Community Council 890 Cromwell Avenue, St. Paul, MN 55114-1599 AA-ADA-EEO Employer STATE OFMINNESOTA o��E o��g��Gs 100 Washington Square, Suife i700 100 Wasfiington Avenue South Minneapolis, Minnesota55401-2138 TELEPHONE: (612) 341-7600 TTY:(612)34�-7346 E' ;� _ ' _ � September 16, 2005 Don Luna St. Paul City Cierk 170 City Hall St. Pauf, MN 55102 SEP I � 2�fl5 �1�� AT�O�� Re: In re a// Licenses Held by WHT, lnc., d/b/a American Sporf Cafe — Playground for the premises located at 2550 Como Avenue in the City of Saint Paul License ID # 19990006829; OQH Docket �Vo. 7-6020-16362-2 . Dear Mr. Luna: Ch- lOtoZ Enclosed herewith and served upon you by mail is the Administrative Law Judge's Findings of Fact, Conclusions of Law, and Recommendation in the above- entitled matter. Also enciosed is the official record, with the exception of the tape recording of the hearing. If you would like a copy of those tapes, plsase contact our office in writing or telephone 612-341-7448. Our file in this matter is now being closed. Sincerely, / ��C,LtC.� RGL:mo Encl. z�l`{"� C'7z' �. � �f � , (-�= � .. . _, , _, �`� � • C : �k� -��o , RICHARD C. LUIS " Administrative Law Judge Telephone: (612) 349-2542 Providing impartial Hearings for Government and Citizens An Equal Opportunity Employer iinistrative Law Division & Administrafive Services Workers' Compensation Hearings Division Workers' Compensation Settlemerrt Division simile: (612) 349-2665 Facsimile: (672) 349-2697 Far_similP: (R791 Ra4_��zn 0 �7�-/bC�2 7-6020-16362-2 STATE OF MINNESOTA OFFICE OFADMINISTRATIVE HEARINGS FOR THE SAINT PAUL CITY COUNCIL ' In re all Licenses Heid by WHT, Inc., d/b/a American Sport Cafe - Playground for fhe FINDINGS OF FACT, premises located at 2550 Como Avenue CONCLUSIONS OF. LAW, in the City of Saint Paul AND RECOMMENDATION License ID # 19990006821 The above-entifled matter came on for hearing before Administrative Law Judge Richard C. Luis, acting as a hearing officer for the Saint Paul Cifij Council, on July 8 and July 11, 2005, at the Saint Paul City Hall/Ramsey County Gourthouse, Room 40A, 15 West Kellogg Boulevard, St. Paul, Minnesota. The hearing was held pursuant to a Notice of Administrative Hearing dated December 17, 2004, an Amended Notice of Hearing dated May 20, 2005,� and a Notice of. Rescheduled Administrative Hearing issued on June 1, 2005? After the hearing, the parties filed written submissions in lieu of closing arguments and the record ciosed August 17, 2005, with the filing of rep�y briefs and proposed findings of fact. Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Blvd., St. Paul, MN 55102, appeared on behalf of the St. Paul O�ce of Lieense Inspections and Environmental Protection (LIEP or City). Richard C. Scattergood and Richard T. Franks, Aftorneys at Law, Rider Bennett, LLP, 33 South Si�h Street, Suite 4900, Minneapolis, MN 55402, appeared on behalf of the Licens�e, WHT, Inc., d/b/a American Sports Cafe - Piayground (WHT or Licensee), NOTICE This Report is a recommendation, not a final decision. The Cify Council of the City of St. Paul will make the final decision after a review of the record and may adopt, reject ar modify these Findings of Fact, Conclusions, and Recommendation. Under Section 310.05(e)(1) of the City's Legislative Code, the City Councii will provide the Licensee an opportunity to present oral or written argumerrts to the Cify Council before it fakes final action. Parties should contact Don Luna, St. Paul City Clerk, 170 City Hall, St. Paul, Minnesota 55102, to inquire about the procedure for presenting argumenf to the City Council. STATEMENT OF ISSUE Whether the City of St. Paul should take adverse action against the licenses held by WHT, Inc., d/b/a American Sports Cafie — Playground. ' Ex. 2z. Z Ex. 23. v�-101� �-- Based upon al� of the proceedings in this matter, the Adminisfrative Law Judge makes the foilowing: FINDWGS OF FACT � 1. Steven Foss is the president and sole owner of WHT. WHT operates two businesses, the Warehouse Nightclub and the American Sports Cafe, out of a building located at 2554 Como Avenue in St. Paul. The building is divided info two spaces, with the American Sports Cafe operating ouf of one space and the Warehouse Nightclub operating out of the ofher. A set of interior doors connects fhe #wo businesses. These doors are kept locked on nights when the Warehouse Nightclub is open for business to prevent patrons from going back and forth between the sports bar and nightclub. The building is located in an industrial area of St. Paul surrounded by warehouses near Fdigh��ay 280 and the �Minneapo6s border. The area is part of the St. Paul Police Department's Western District patrol area. 2. WHT holds the following licenses: Liquor On Sale; Liquor On Sale Sunday; Liquor On Sale — 2:00 a.m.; Gambling Locafiion; Alarm Permit; Cigarette/Tobacco; Entertainment (B) and Restaurant (D). 3. The Warehouse Nightclub began operating in fate 1998. It is open approximately three nights a week from 9:00 p.m. until 2:00 a.m. The nightclub is approximately 3,000 square feet with a large bar, kitchen and dance floor. In addition, it has a very large parking lot, which is approximately the size of two footbail fields. After 1:30 a.m., new customers are denied access to the club's parking lot. 4. Shortly after the Warehouse Nightclub opened, its manager, Paul "PJ" Augusiyn, tafked to Saint Paul Police Officer Rondell Townsend about hiring ofF duty police afficers for crowd control. Officer Townsend spoke to then Saint Paul Police Chief William Finney. Chief Finney called Augustyn and told him that he would allow , Saint Paul police officers to work off-duty at the Warehouse NightcVub with the understanding that the officers may need to leave to respond to emergency calls. Augustyn told Chief Finney that the club was planning on advertising on the B-96 radio station in an attempt to attract a more "urban clier�tele." This radio station typically plays hip hop, rap and "gangste�" rap music. Chief Finney told Augustyn that he would regularly send the Saint Paul Police Gang Task Force through the nightclub and check license plates in the parking lot. Finney explained to Augustyn that if the police were looking for someone or if there was a problem, they would come into the Warehouse Nightclub and take into custody whoever they were looking for. 5. After Augustyn's discussion with Chief Finney, the Warehausa Nightc{ub began employing off-duty Saint Paul police officers to provide security and crowd control in the parking lot area. The Saint Paul Police Department prohibits uniformed 3 Tesfimony of Schweinler, Strickland, Parsons, Townsend, and Williams; Ex. 1. " Testimony of Schweinfer, Ex. 1. 5 Testimony of Schweinier and Augustyn. 6 Testimany of Augustyn. 2 D��10(� 2- off-duty police officers from working inside licensed liquor estabiishments. About four off-duty police officers work each night the club is open from approximatefy 11:00 p.m. unti12:30 a.m. The officers provide crowd control when the club closes at 2:00 a.m. and they assist in ciearing the parking lof. The officers also monitor the ciub's entrances and assist the club's security when a patron is asked io leave the establishment. Once a patron is escorted outside by security, fhe police officers ensure thaf the individual leaves the property. The presence of the officers and ttie visibility of their squad cars also act as a deterrent fo disorderly or unlawfui conduct. 6. In approximately Januar�y of 2000, WHT installed a metal defector af the entrance of the Warehouse Nightclub. 7. The Warehouse Nightclub is not open every night of the week. During 2003-2004, the Warehous� Nightclub was open Sunday, Tuesday and Saturday nights. On Sunday nights, the club played an °urban" musical format of hip hop, rap and "gangste�' rap. Approximately 250-450 people would attend the Warehouse Nightclub on a typicai Sunday night. On Saturday nights, the club hosted "Teen Night", an alcohol-free dance party for 15-18 year old teenagers. WHT stopped having Teen Nights in September of 2004, following the shooting of a juvenile. 8. Sometime in the summer of 2003, (then) St. Paul Police District Commander John Harrington�� called Augustyn and told him that Officer Steve Parsons would be WHT's police liaison officer. Officer Parsons has been a Saint Paul Police Officer for 15 years, and has worked in the crime prevention division of the FORCE unit for the last seven years. The FORCE unit focuses on problem properties, street level narcotics, and general quality of life issues. As part of his duties, Officer Parsons works with properties that generate four or more nuisance type police calls in a 30-day period. 9. In late June or July of 2003, about a week after Harrington's phone call, Officer Parsons came out to the Warehouse Nightclub to meet with Augustyn. Parsons discussed with Augustyn the high number of police calls generated by the nightclub and he made suggestions for additional security measures. O�cer Parsons suggested that WHT pwrchase a hand-held metal detector (wand), upgrade its surveillance system, add lighting in the parking lot, and post signs informing people that the parking lot was under -surveiilance. Otftcer Parsons also suggested that WHT eliminate the urban or "gangster" rap musical format it played on Sunday nights. 10. Officer Parsons saw a correlation between the nights when the club played a more urban rap musical format and the number of police calls made to the ' Testimony of Strickiand. 8 Testimony of Wiiliams and Sims. 9 Testimony of Augusfyn; F�c. 29L. '° Testimony of Lee and Augusfijn; Ex. 11.. " Harrington since has succeeded Finney as St. Paul's Police Chief. 72 Testimony of Parsons and Augustyn. 13 Testimony of Parsons and Augusfijn. 3 e p��ll�l��- club. According to Parsons, hip hop and "gangste�" rap music tends to attract a more trouble-prone or disorderly crowd than other music. 11. After Augusfyn's meeting wifh Officer Parsons, WHT purchased a hand- held mefal detecfor (wand) to use at the Warehouse Nightclub and �osfed signs reading: "Notice: These premises are under 24 hour video surveillance." 5 WHT also added more lighting in the parking lot and purchased additional surveillance cameras to monitor the parking lot.� In addition, WHT began playing versions ofi rap songs edited for explicif cantent. The intent of the change in musical format was to lessen the amount of the extreme "gangsfe�" rap music played at the club. 12. In addition to the off-duty police officers, the Warehouse Nightclub also employs security personnel fo work inside the club. Typically, the Warehouse Nightclub �as 12-15 5ecurir,� persons working �on nights it is open. A security person, or "bouncer," is stationed at the entrance of the ciub to check the IDs of persons entering - the club and to make sure that everyone entering is either patted down or screened by a hand held metal detector or wand. The bouncers also enforce the Warehouse Nightclub dress code, which �rohibits the wearing of sport jerseys, excessively baggy clothes, hats and bandanas. 8 The dress code is intended to prevent patrons from wearing clothing or colors ident�ed with gangs. Security personnel also monitor the club's surveillance cameras, which scan the ent�ance and parking lot of the building2 13. In late 2003, the Warehouse Nightclub changed its musical format from the type of urban hip hop and rap music played on the B-96 radio station to the top-40 dance type music played on the KDWB-101.3 radio station. Although the two radio stations share a majority of the songs on their play lists, including rap songs, KDWB plays slightly less extreme urban or °gangster" rap music. 14. Between June 13, 2003 and September 19, 2004, the Warehouse Nightclub had 13 police calls for incidents including assault, assault with a dangerous weapon, disorderly conduct, inciting a riot, and weapons possession. In one incident, an unruly patron assaulted an off-duty police o�cer. In another" incident, a patron assaulted another patron with a beer bottle 2 In another incident, a patron was arrested for inciting a riot after a°large fighY' broke out at the Warehouse �lightclub Z And on the evening of September 14, 2004, police arrested a fugitive in the parking lot of the Warehouse Nightclub who was wanted in Milwaukee for a car jacking. The individuaf 14 Testimony of Parsons. t5 Testimony of Augustyn; Ex. 29A, 29G and 29H. ' TesRimony of Augustyn; E�s. 29C, 29D, 29F, 291 and 29K "Testimony ofAugustyn. '$ Testimony of Pikala. t9 Testimony of Townsend and Pikala. 20 Testimony of Pikala; Exs. 29B, 29C, 29F, 291, and 29K. 2 ' Testimony of Augustyn. ZZ Exs. 2-14. zs Fx. 7. za EX. 3. zs 6c. 6. C! Q DGj'10�2 had several felony warrants and was in possession of a handgun when he was arrested. Police leamed from an informanf that the suspect was heading fo the Warehouse Nightclub and was possibly armed 2 The arrest of fhis ind'sviduaf from Miiwaukee was one of three incidents the Sainf Paul Police responded fo in September of 2004 fhat involved possession of handguns af fhe Warehouse Nightclub Z� 15. Six of the 13 police calls that were placed to fhe Warehouse Nightclub between June 13, 2003, and September 19, 2004, involved assaulfs and disorderly conduct incidents fhat occurred on Sunday nights or in the early hours of Monday mornin�qs, during or at the close of evenings featuring the ciub's urban or "gangste�' rap format. $ 16. Tyrone Strickland, Saint Paul Police DepartmenYs Patrol Commander for fhe Western District (which includes the Warehouse Bar) considered the Warehouse Bar to be one of his "problem properties" based on the number of police calis for service to the property and the type of incidents involved. 17. Since August of 2003, the Licensee has installed outside surveillance cameras located across the front of the buifding, and more lighting in the parking fot at the Warehouse Nightclub. The Licensee also posted signs stating that the premises are under 24-hour surveillance and the Licensee stopped serving beer and other alcoholic beverages in glass bottles to prevent their use as weapons in assaults. The Licensee now serves all beverages in plastic cups. 18. In 2004, (then) District Commander Harrington called a meeting with the Licensee to discuss safety concerns related to the number and type of police calls to the Warehouse Bar. Patro! Commander Strickland, Officer Parsons, Christine Rozek, Director of LIEP, Kristina Schweinler, Senior License Inspector with LIEP, and Assistant : City Attorney Virginia Palmer also attended the meeting 3 Steven Foss and Paul Augustyn attended on behalf of WHT. After this meeting, LIEP requested that the Saint Paul City Attorney's O�ce pursue an adverse action against WHT. LIEP recommended that the City fine WHT $2,000 and impose conditions on WHT's licenses. 19. In October of 2004, the Warehouse Nightclub stopped being open on Sunday nights. WHT's decision to close the club on Sunday nights was due in part to competition from another club that began operating with a similar urban rap musical format on Sunday nights. Currently, the Warehouse Nightclub is open on Tuesday, zs �. 13. 27 Exs. 11, 13-15. 28 Exs. 3-5, 7-9, and 15. '� Testimony of Strickland. ao Tesfimony of Williams and Townsend; Ex. 3. 31 Testimony of Strickland. 32 7estiroony of Schweinler and Strickland. 5 p�-/a� �- a Thursday and Friday nights from 9:00 p.m. unfil 2:00 a.m.� On the nights it is open, the Warehouse Nightclub draws approximately °a couple hundred" patrons � 2d. At the October 27, 2004, St. Paul City Council meeting, Officer Parsons testified on a resolution fo assess WHT for excessive police and nuisance enforcement services for properties locafed at 2554 Como Avenue (Warehouse Nightclub). Officer Parsons informed fhe Council that there had been a significant number of calls to the Warehouse Nightciub on weapons, disorderiy conduct and assaults. In fact, Parsons stated that the Warehouse Nighfc�ub was considered to be "the most dangerous bar in the ciiy.° Parsons stated further that he believed the biggest problem with the nightclub was ifs °18+ nighY' format, where the club allowed patrons over 18 years of age to enter the club. The club identified those old enough to drink alcoho4ic beverages by checking their identifcation and then providing them with a wristband. However, Parsons testified that "on these nights, the ciub was so crowded it was not possible for Ehe club to efFectively monitor the wristbands and alcohol consumption. Parsons also stated that _, the evenings when the nightclub played a rap music format generated the most calis for service. Parsons told the City Council that he believed it was only a matter of time before someone, either a patron or an off-duty police officer, was killed at the Warehouse Nightclub. 21. On October 29, 2004, the St. Paul City Attorney's Office issued a Notice of Violation to Steven Foss regarding the large number of police calls to fhe Warehouse Nightclub between June 13, 2003 and September 19, 2004. The Notice summarized each incident and concluded that there was an extremely high level of assaultive behavior taking place between patrons, and that the incidence of weapons being used on the premises posed a danger to patrons and the responding officers. The Notice cited Saint Paul Legislative Code § 310.06(b)(8) as permitting adve�se action against the business licenses of WH7`. The Notice further stated "that it was the recommendation of LIEP that WHT be fined $2,000 and that conditions to address the assaults and weapons use of its patrons be placed on its ficense. The Notice of Violation advised WHT of its right to a hearing, if the underlying facts of the violation were disputed 3s 22. The City subsequently suggested that the following conditions be placed on WHT's licenses: (1) 18+_language (unknown what form this may take in light of recent ordinance change); � (2) All customers must be wanded or must walk through a metal detector prior to entry. Weapons wili not be permitted in the establishment; � Testimony of Augustyn. � Testimony of Lee. 3s Ex 26; Testimony of Parsons. as Er. 15. � o�-�� 2- (3) The business will have surveillance cameras both inside and outside th.e esfablishment. Equipment will be maintained in good working condifion and all tapes will be kept for at leasf 7 days. Tapes will be immediately availabie to police officers and/or license inspectors upon request; (4) The club will be cfosed to new customers after 1:00 a.m. Last call wiil be 1:30 a.m.; (5) The ID of every customer must be checked prior to entry into the club. The licensee must not permit anyone under the age of 21 to consume alcohol in the establishment. If a customer does not provide a _ legitimate ID, the customer will be denied entry. (6) The licensee is responsible for patron behavior on the licensed premises, including the parking lot; and (7) During the hours of 9:00 p.m. until closing, the licensee, on those nights when the club portion of the establishment is open, wifl provide for staffing and monitoring of all entrances and exits, it being the intent that at all times indicated at least one employee of the licensee will be • physically present at each entrance and exit to monitor patrons entering and exiting the establishment. 23. WHT already complies with many of the conditions suggested by the Cify. WHT does oppose, however, the City's proposed conditions 4, 6, and 7. Specifically, WHT objects to closing the Warehouse Nightclub to new customers at 1:00 a.m. and to - stopping service at 1:30 a.m. WHT also objects-to being required to place security personnel at the entrance of the American Sports Cafe when patrons are unable to go between the cafe and the nightclub. And WHT believes it should not be held responsible fior ail patron behavior, particularly criminal behavior, on its premises as a condition of its license. 24. There have been no significant incidents of disorderly conduct or assaults at the Warehouse Nightclub since October of 2004, when the Licensee discontinued Teen Night and closed the establishment on Sunday nights. 25. In June of 2005, the Saint Paul City Council passed an ordinance restricting clubs and bars from hosting 18+ nights. The ordinance requires clubs to separate underage customers from areas where alcohol is being served 4 After the ordinance was passed, WHT discontinued its 18+ nights at the Warehouse Nightclub. 37 Ex. 24. 38 Testimony of Augustyn. � Testimony of Parsons. 4o Exs. 31 and 32. 7 Q5- 101� a- 26. Assistant City Attomey �rginia Palmer advised the Saint Paul City Council on the adoption of the ordinance restricting 18+ nights. There is no evidence in the record that Ms. Palmer discussed any issues relating to this particular licensing matEer with any council member or his or her staff. � Based upon the foregoing Findings of Fact, the Administrative Law Judge makes fhe foilowing: CONCLUSIONS 1. The Administrative Law Judge and the Saint Paul City Council have jurisdicfion in this matfer under Minnesota law and Saint Paul City ordinance. 2. The Gity substanfial(y complied with alf relevant substantive and procedural legal requirements. 3. The City gave the Licensee proper and timely notice of the hearing in this matter. , 4. The Saint Paul Legislative Code authorizes the City Council to take adverse action against a license when the manner in which a business is operated allows "conditions that unreasonably annoy, injure or endanger the safety, health, morals, comfort or repose of any considerable number of inembers of the public"� 5. "Adverse action" is defined in the Saint Paul Legislative Code to include the imposition of conditions on a license, the imposition of a fine, the assessment of the costs of a contested hearing, and any other disciplinary or unfavorable action taken with respect to a license, licensee or applicant for a license. 6. The City has the burden of proof to establish by a preponderance of the evidence that WHT has operated Warehouse Nightclub in a manner that maintains or permits conditions that unreasonably annoy, injure or endanger the safety, health, morals or comfort of considerable number of inembers of the public. 7. The City has proved by a preponderance of the evidence that between June 13, 2003, and September 19, 2004, the Licensee operated Warehouse Nightclub in a manner that maintained or permitted conditions that unreasonably endangered the safety, health, morals or comfort of considerable number of inembers of the pubiic. 8. The Saint Paul Legislative Code states in part thaf No interested person shall, with knowiedge that a license matter has been scheduled for adverse hearing, cqnvey or attempt to convey, orally or in writing, any information, argument or opinion about the matter, or 41 Minn. Staf. §§ 14.50, 14.55; St. Paul Legisiative Code § 310.05-.06. 42 St. Paul Legislative Code Secfion 310.06(b)(8). 43 St. Paul Legislative Code § 310.01. � z � ��U� � any issue in fhe matter, fo a council member or his or her staff until the counci( has taken fnal acfion on the matter; ... ` 10. The Licensee has failed to estabiish fhat Assistant Cify Attorney Palmer engaged in ex parte contacts in violation of the Saint Paul Legislative Code. Based upon the foregoing Conclusions, fhe Administrative Law Judge makes the following: RECOMMENDATiON IT IS RECOMMENDED that the City Council order that adverse action be faken against the licenses heid by WHT, Inc., and fhat appropriate conditions be placed on licensure for f�t�� operations. � Dated fhis � � day of September 2005. , /) • �. ��✓ RICHAR C. LUIS AdmiRistrative Law Judge Reported: Taped (4 tapes). No transcript prepared. MEMORANDUM The City of St. Paul's Office of License Inspections and Environmental Protection (LIEP) has recommended that adverse action be taken against WFiT's licenses. The City has established thaf between June 13, 2003 and September 19, 2004, the Warehouse Nighfclub generated at least 13 police calls for service concerning assaults and disorderly conduct on the nightclub's premises. Municipalities have broad discretion in determining °the manner in which liquor licenses are issued, regulated, and revoked.i The Saint Paul Legislative Code § 310.06(b)(8) permits adverse action againsf a license when °[t}he licensed business, or the way in which such business is operated, maintains or permits conditions that unreasonably annoy, injure or endanger the safety, health, morals, comfort or repose of any considerable number of inembers of the public." Minnesota courts have upheld adverse actions against licensed businesses based on actions occurring in the licensed business's parking lot, alley, or surrounding area as ' Saint Paul Legisia{ive Code § 310.05 (c-2). `� Bourbbn Bar & Cafe Corp. u City of St. Paul, 466 N.W.2d 438, 440 (Minn. App. 1991) (citing, Sabes v. Ci(y of Minneapolis, 265 Minn. 166, 171, 120 N.W.2d 871, 875 (1963)). 46 See, CUP Foods, lnc. v. City of Minneapolis, 633 N.W2d 557 (Minn. App. 2001); Mefro Bar & Grili, Inc., d/b/a Amellia's v. City of St. Paul, C6-00-1156 (Minn. App. May 1, 2001) (unpublished). � /)��/V U� V � The record in this matter contains clear evidence of disorderly conduct, assaui{s, and weapons possession occurring at the Warehouse Nightclub or in its parking lot on a frequent basis between June 13, 2003 and September 19, 2004. The record also established fhat on a fijpical night, nighfclub sfaff, off-duiy police officers, and a couple hundred patrons would be af the Warehouse Nightclub. The City mainfains fhat this evidence is sufficient to find WHT operated the Warehouse Nightclub in a manner fhat maintained or permitted conditions that endangered the heaith and safety of a considerable number of inembers of the public. As an initiai matter, WHT contends thaf patrons of the Warehouse Nightclub are not "members of the public" within the meaning of section 310.06(b)(8). Based on case law interpreting public nuisance crimes under Minn. Stat. § 609.74, WHT asserts that only neighbors of the licensed premises who have property with which the alleged nuisartce activiiy could intert2re qualify as "members of the public." Because patrans do not have property that could be interfered with by the Warehouse Nightclub, WHT contends that they are not "members of the public.° And since the Warehouse Nightclub is located in an industrial area with no affected adjoining landowners or neighbors, WHT maintains that the City has failed to meet its burden of proving that the Warehouse Nightclub unreasonabiy annoys, injures or endangers the safety or health of any members of the public, let alone a considerable number. WHT also argues that it responsibly managed the Warehouse Nightclub and that the City has failed to show it maintained or permitted conditions that caused the disorderly behavior at issue. WHT points out that it cooperated with the Saint Paul Police Department and implemented a majority of the security measures suggested by Officer Parsons. For example, WHT purchased a hand-held metal detector (wand), upgraded its surveillance equipment, posted signs on its property notifying persons that the premises were under 24=hour surveillance, added lighting to the parking lot, and stopped serving beverages in glass bottles. According to WHT, it is not enough to demonstrate that disorderly conduct occurred at the licensed premises in order to establish a violation of section 310.06(b)(8). Instead, WHT argues that the City must show a nexus between the actions of the licensee and the disorderly behavior. With respect to WHT's first argument, the Administrative Law Judge is not persuaded thai patrons of the Warehouse Nightclub are not "members of the public" within the meaning of the St. Paul Legislative Code. The Warehouse Nightclub is a p{ace of public accommodation that invites patronage of the general public. As such, patrons are "members of the public" within the meaning of section 310.06(b)(8) 4 As to WHT's other arguments, the record did establish that WHT implemented many of the security measures suggested by fhe Saint Paul Police Department. 47 See, in re Licenses of Lucky Star, Inc., d/b/a Bangkok City Supper Clu6, OAH Docket No. 4-602�- 14825-3 (Recommended Decision issued August 2, 2002) (conditions thaf facilitated po4ential for underage drinking unreasonably endangered safety and heaith of "those young people and other members of fhe public."); In re all Licenses Held by Dinner Club 2000, lna, d/b/a Dinner Club 2000, OAH Docket No. 10-6020-14868-3 (Recommended Decision, October 8, 2002) (Assaults at the club endangered "the healfh and safety of patrons, employees, and passersby.") 10 OS /d� 2— a However, fhe record also established that numerous assaults continued to take place in and around fhe premises of fhe Warehouse Nightclub even after fhese securify measures were adopfed and that WHT was aware it had an ongoing problem with. assaultive behavior on the part of its patrons. Alfhough the nightclub itself did not violafe any laws, illegal acfivity that posed a threat to pubiic safety occurred on its premises for an e�ctended period of time. Only after the Warehouse Nightcfub discontinued its Teen Nights and ciosed on Sunday nights in October of 2004 did serious incidents of disorderly conducf or assauits decrease. This evidence suggests that there were additionai measures or changes WHT could have implemented earlier in order to reduce the uniawfu� behavior occurring at the Warehouse Nightciub. The City has demonstrated by a preponderance of the evidence that the assaults at the Warehouse Nightclub endangered the healfh and safety of patrons, employees, and the ofF-duty police officers. The Administrative Law Judge concludes that the conduct was sufficiently severe and frequent to support adverse action in this matter, such as imposition of a fine and conditions on the licenses. The City has broad discretion in seleating an appropriate penaltyr. However, WHT strongly objects to whaf it claims is the City's unofficial or implied condition that it stop playing rap music at the Warehouse Nightclub. WFt7 points out that it already "softened" the musical format at the Warehouse Nightclub by playing radio-edited versions of rap songs. WHT contends that any attempt to ban the playing of rap music on the part of the City amounts to censorship and would violate the First Amendment. The City asserts that it is not requesting that WHT ban rap music from the Warehouse Nightclub's playlist. Rather, the City maintains that it presented testimony that the clientele attracted to the urban rap format the Warehouse played on Sunday nights was more prone to disorderly conduct than the clientele on other nights. This testimony was supported by' evidence thaf problems at fhe VVarehouse were greatly reduced or eliminated after WHT discontinued its urban rap entertainment format on Sunday nights. Although Saint Paul Police Officer Parsons suggested to P.J. Augustyn that the Warehouse Nightclub eliminate its "gangster" rap music format on Sunday nights, the City did not list such a ban as one of the license conditions it subsequently proposed. Because the City is not seeking to prohibit WHT from playing rap music at the Warehouse Nightclub as a condition of its license, the Administrative Law Judge will not address whether such a ban wouid render section 310.06(b)(8) unconstitutional as applied to WHT. Finally, -WHT argues that section 310.06(b)(8) of the Saint Paul Legislative Code is unconstitutionally vague on its face. WHT contends that the ordinance lacks specificify as to whaf conduct on the part of WHT amounted to "maintaining or permitting conditions" that violate the ordinance. Moreover, WHT asserts that there is no objective standard for determining when a licensee "unreasonably annoys, injures or endangers safety, health, morals, comfort or repose." 48 Bergmann v. City of Melrose, 420 N.W2d 663, 665 (Minn. App. 1988) (citing, C/eveland v. Rice County, 238 Minn. 180, 183, 56 N.W.2d 641, 643 (1952).) 11 � �y-1a��- Municipal ordinances are presumed constitutional and the ALJ notes that similar vagueness challenges to the Minneapolis City Charter, which permits revoking licenses for "good cause,° have failed. In Hard Times Cafe v. City of Minneapolis, for example, the Minnesota Court of Appeals found the "good cause" sfandard to be sufficiently definite to permit the licensee fo know that if would be subject to adverse action. The Hard Times Cafe case involved multiple drug transactions in and around the cafe's premises. The Court of Appeals determined thaf the Licensee would not have to guess thaf such activ'tiy was the type that constitufed good oause for license discipiinary action 5 Likewise, it was or shouid have been clear to WHT, and beyond the realm of guesswork, that assauits, violent disturbances and other criminal conduct on its premises were the type of activity that might subject its license fo adverse action. In any event, a facial challenge to the constitufionality of fhe Saint Paul ordinance is beyond the scope of this hearing, as such a challenge is within the exclusive province of fhe judicial branch o� government $2 WHT's constitutional arguments are noted for the record and preserved for possible appeal. , The City has demonstrated that between June 13, 2003 and September 19, 2004, WHT operated the Warehouse Nightclub in a manner that maintained or permitted conditions that unreasonably endangered the safety or health of. a considerable number of inembers of the public. However, the'security measures implemented by WHT in its attempt to cooperate with the police and lessen the unlawful conduct at its nightclub are mitigating factors the City Council may consider to determine what sancfions and/or conditions to impose. In that connection, the ALJ is persuaded that reasonable license condifions on closing, security at entrances to the "Warehouse" premises and responsibility for parking lot security are appropriate. WHT notes that it already operates the Warehouse Nightclub in a manner cansistent with many of the conditions proposed by the City. WHT opposes the City's suggested condition that the Warehouse Nightclub close its doors to new customers at 1:00 a.m. and institute a last call at 1:30 a.m. because these conditions are more restrictive than Minnesota law and (WHT contends) the City has failed to present evidence of a nexus beiween patrons entering between 1:00 a.m. and 1:30 a.m. and conditions that unreasonably endanger the health and safety of the public. Moreover, WHT points out that the Warehouse Nightclub already denies access to its parking lot after 1:30 a.m., so if patrons wish to park at the Warehouse Nightclub they must arrive before that time. WHT also ol�jects fo the suggested condition that it place staff at the enfrance of the American Sports Cafe on the nights when the Warehouse Nightclub is open. WHT maintains that such a requirement is unnecessary when security personnel are already at every entrance and exit of the Warehouse ` Hard Times Cafe v. City of Minneapolis, 625 N.W.2d 165 (Minn. App. 2001). so 625 N.W2d 165 (Minn. App. 2001). 51 Id. at 172; See also, City of Saint Paui v. Franklin, 286 Minn. 194, 198, 175 N.W2d 16, 18 (1970)(ordinance prohibiting keeping a disorderly house was not unconstifutionally vague as appiied to a�pellant). Neeland v. Ciean�vafer Memoriai Nospitai, 257 N.W2d 366, 369 (Minn.1977); ln re Rochester Ambu/ance Service, a Div. Of Hiawatha Avia6on of Rochester, 500 N.W2d 495, 499-500 (Minn. App. 9993) (Administrafive Law Judge lacks jurisdiction to deciare a statute unconstitutional on its face). 12 .; � a�-lo��- Nightclub and patrons are prevented from going befween the nighfciub and the Sports Cafe. WHT also objects to the broad language of proposed condition #6, which would seem to hold WHT strictly liable for all patron conducf, even criminal conduct, in the club or on the parking lof. These are all additional considerafions thaf the Council might weigh in deciding whaf conditions fo impose on WHT. R.C.L. 13 �S-�D�a STATE OF MINNESOTA OFFICE OF ADMIIVISTRATIVE HEARINGS FOR THE SAINT PAUL CITY COUNCIL In Re the Licenses held by WHT, Inc., d/b/a WHT, INC., DB/A AMERICAN American Sports Cafe — Playground for the SPORTS CAFE FINDING5 OF FACT, premises located at 2554 Como Avenue in CONCLUSIONS OF LAW, AND Saint Paul RECOMMENDATION OAH Docket No.: 7-6020-16362-2 The above-entitled matter came on for hearing on July 8, 2005, at 9:30 a.m. before Administrative Law Judge Richazd C. Luis, in Room 41 of the Saint Paul City Hall, 15 West Kellogg Boulevard, Saint Paul, Minnesota 55102. A second day of hearing was held on July 11, 2005, in Saint Paul. The record closed on August 9, 2005, with the filing of the parties' post- hearing reply briefs. Virginia D. Palmer, Assistant City Attorney, Office of the City Attorney, 400 City Hall, 15 West Kellogg Boulevard, Saint Paul, Minnesota 55102 represented the City of Saint Paul's Office of License, Inspections and Environmental Protection ("LIEP"). Richazd C. Scattergood and Richard T. Franks, Attorneys at Law, Rider Bennett LLP, 33 South Sixth Street, Minneapolis, Minnesota 55402 represented W.H.T., Inc., d/b/a American Sports Cafe for the Premises Located at 2554 Como Avenue in Saint Paul, ("W.H.T." or "Licensee"). NOTICE This Report is a recommendation and not a final decision. The City Council of the City of Saint Paul will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendation. Under Section 310.05(e)(1) of the City's Legislative Code, the City Council will provide the Licensee an opporiunity to present oral or written arguments to the City Council before taking final acrion. Parties should contact the City Council to determine the procedure for filing arguments or appearing before the City Council. STATEMENT OF ISSUE This case presents the following issues: 1. Did W.H.T. operate the Warehouse Nightclub in such a manner that it maintained or pernutted conditions that unreasonably annoy, injure or endanger the safety, health, marals, comfort or repose of a considerable number of inembers of the public in violation of Saint Paul Legislative Code §310.06(b)(8)? 2. If so, should the Saint Paul City Council place conditions on its License? ,! o5-lob�, NOW, THEREFORE, based upon all of the files, records, and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law 7udge makes the following: FINDINGS OF FACT 1. Steve Foss is the president of W.H.T., Inc., d/b/a American Sports Cafe- Playground ("Wazehouse Nightclub") for the premises located at 2554 Como Avenue in Saint Paul. 2. The licensed activity is located in a wazehouse district near Highway 280 and the Minneapolis border. People traueling down Como Avenue are not necessarily going to the Warehouse Nightclub. The City introduced no evidence that adjoining landowners have been affected by W.H.T. 3. The license activity includes the Warehouse Nightclub and the American Sports Cafe. 4. The Warehouse Nightclub's musical format is hip-hop, rap, and R&B top 40-play list. (Testimony of Paul Augustyn.) 5. American Sports Cafe has pool tables, games, televisions, and food. It caters to a college crowd and is open seven days a week. (Tesrimony of Officer Williams.) 6. The Warehouse Nightclub is open on auerage three to four nights a week with different formats. (Testimony of Paul Augustyn.) 7. The Warehouse Nightclub has and enforces a dress code. (Testimony of Officer Sims, Paul Augustyn, Ramont Lee, and Peter Pikala.) 8. The Warehouse Nightclub requires a valid state identification in order for a patron to gain admission to the club. (Testimony of Paul Augustyn and Peter Pikala.) 9. W.H.T. approached the Saint Paul Police Deparhnent regarding providing extra security as a deterrent effect to disorderly behavior at the nightclub. (Testimony of Paul Augustyn and Officer Townsend.) 10. Incidents have occurred with a few patrons that have been asked to leave or have been denied access to the nightclub. (Testimony of Officers Parsons, Williams, Townsend, and Sims, Ramont Lee, and Paul Augustyn.) (Ex. 2-14.) 11. The City alleges that the manner in which W.H.T. presents its entertainment format is the basis for the violation of Saint Paul Legislative Code § 310.06(b)(8). (Testimony of Kristine Schweinler, Officer Steve Parsons.) (Ex. 33. and 34.) 1293065-1 2 QS'-�o�a 12. The City admits that W.H.T. has not violated a limitation on the manner or means of advertising the operation or merchandise of the licensed establishment. (Ex. 33.) 13. The City admits that W.H.T. has complied with the conditions set forth in its license or resolutions granting or reviewing the license. (Ex. 33.) 14. The City admits that W.H.T. has not violated, or performed any act which is in violation of, any provision of Chapter 310 of the Uniform License Procedures of the Saint Paul Legislarive Code or any statute, ordinance or regulation reasonabiy related to the licensed activity, regazdless of whether criminal charges have or haue not been brought in connection therewith. (Ex. 33.) 15. The City admits that there has not been a significant incident at the Warehouse Nightclub since the end of September 2004. (Ex. 33.) 16. The City admits that W.H.T. and other establishments pay for the presence off- duty officers to provide crowd control and as a detenent to criminal activity. (Testimony of Commander Strickland, Officers Parsons, Williams, Townsend, and Sims.) (Ex. 33.) 17. Between June, 2003, and December, 2003, four police reports were introduced into evidence resulting from disorderly behavior and fights between female patrons. There is no indication of a gang affiliation or reference to music in any of the police reports. (Exs. 2-5.) (Testimony of Commander Strickland and Paul Augustyn.) 18. W.H.T. has made a number of voluntary additions to the licensed premises to increase security. (Officers Parsons, Williams, and Townsend and Paul Augustyn.) (Ex. 29.) 19. In response to suggestions by Officer Parsons and others, W.H.T. has placed metal detectors at the entrance, signs banning firearms on the premises, signs identifying that patrons and their vehicles are under video surveillance, along with additional cameras to monitor the exterior and interior of the premises, additionai lighting, additional off-duty officers, monitors viewable during hours of operation, and a book with Polazoid photos to identify those patrons banned from patronizing the bar. (Testimony of Officers Parsons, Williams, Townsend, and Sims, Peter Pikala, Ramont L,ee, and Paul Augustyn.) (Ex. 29.) 20. W.H.T., in response to Officer Wiliiams' concerns about glass bottles, removed glass bottles from the licensed activity and replaced them with plasric cups and bottles. Also, in response to one aggravated assault incident, W.H.T. ended °Teen Night" at the Warehouse Nightclub prior to the initiation of the City's notice of violation and adverse action. (Officers Parsons, Williams, Townsend, and Sims and Paul Augustyn.) 21. The City contends that the "rap" music format played at the Wazehouse Nightclub attracts the wrong clientele and is the source of the disorderly behavior at the Wazehouse Nightclub. However, the City offers no evidence to correlate this assumprion. (Testimony of Kristine Schweindler, Officers Pazsons and Sims, and Commander Strickland.) 1293065-1 3 Q5 22. On January 10, 2004, Renaldo McDaniel was charged with inciting a riot and banned from the Warehouse Nightclub. There is no indication of a gang affiliation or reference to music in the police reports. (Ex. 6.) 23. On February 23, 2004, a patron was involved in an altercation with the police after he refused to wait to re-enter the club to claim his jacket once the exiting patrons had gone. The patron became belligerent because he was denied access, and he then assaulted a police officer after several uniforxned off-duty officers told him to leave. The patron was later arrested and chazged with assault. There is no indication of a gang affiliation or reference to music in the police reports. (Ex. 7.) 24. On March 1, 2004, individuals were stopped on the basis they were suspected of having a firearm in their car. However, they did not and they were charged with driving after revoca6on and arrested. W.H.T. had no control over the private automobiles driven by the patrons involved in the traffic stop. There is no indication of a gang affiliation or reference to music in the police reports. (Ex. 8.) 25. On March 22, 2004, officers made an arrest of a 17-year old male for the illegal possession of a handgun after his older brother left his handgun in the car with his 17-year old brother when he entered the Warehouse Nightclub. The 17-year old brother was later questioned by off-duty Officers Sims and Williams and they discovered that the gun found in the caz was improperiy loaded and with a minor. The owner of the firearm was arrested due to his mishandling of the firearm, although he had a valid carry pemut. W.H.T. had no ownership or control over the private vehicle where the fireann was discovered. There is no indication of a gang affiliation or reference to music in the police reports. (Testimony of Paul Augustyn.) (Ex. 9.) 26. On September 4, 2004, a patron was involved in an aggravated assault at the Warehouse Nightclub during teen night. After this incident, W.H.T. discontinued its teen night format. There is no indication of a gang affiliation or reference to music in the police reports. (Testimony of Paul Augustyn.) (Ex. 11.) 27. On September 8, 2004, a patron was ejected from the Warehouse Nightclub for disorderly behavior. Security under the direction of management requested that this patron leaue the licensed premises since his business was no longer welcomed. The patron became belligerent and made terrorist threats in front of the off-duty officers hired by W.H.T. to perform crowd control. The officers used force to subdue the patron and he was later arrested. The off- duty officers were hired to provide assistance to W.H.T.'s security when patrons behave in such a manner. There is no indication of a gang affiliation or reference to music in the police reports. (Testimony of Officers Williams, Townsend, and Sims, Peter Pikala, and Ramont Lee.) (Ex. 12.) 28. On September 14, 2004, the Force Unit, along with SN and the Minnesota Violent Crime Fugitive Task Force received information that a violent suspect, along with his brother, were going to be in Saint Paul with a vehicle stolen in a carjacking incident in Milwaukee, Wisconsin. The City contends that the musical format was the reason that the carjackers selected the Warehouse Nightclub as their destination. The evidence also establishes that Renaldo McDaniel, who was involved in another incident at the Warehouse Nightclub, was 1293065-1 [4 05-/Oba. present in the stolen vehicle. The testimony established that W.H.T. had 86'd McDaniel from the nightclub. The criminals were arrested upon their arrival at the Wazehouse Nightclub. There is no indication of a gang affiliarion or reference to music in the police reports. (Testunony of Officer Pazsons and Paul Augustyn.) (Ex. 13.) 29. On September 29, 2004, a patron was arrested at the end of the night for possession of a fireatm in a vehicle. The Warehouse Nightclub was closed and an off-duty officer observed a firearm in a vehicle. The vehicie was stopped, the gun was recovered, and the perpetrator was arrested. The firearm was recovered from a private auto. There is no indicarion of a gang affiliarion or reference to music in the police reports. (Ex. 14.) 30. W.H.T. presented evidence that music today has changed and rap and hip-hop music is popular today and it is what is played on KDWB and B96 and nightclubs that market themselves on these two top-forty radio stations in the Twin Cities. (Testimony of Paul Augustyn.) 31. W.H.T. has lost a mazket share to other licensed ac6vities in Minneapolis and Saint Paul since those clubs are now using the same musical format as the Warehouse Nightclub. (Testimony of Peter Pikala, Ramont Lee, and Paul Augustyn.) 32. W.H.T. switched sometime in early October to the radio edits of the music played at the Warehouse Nightclub. (Testimony of Paul Augustyn.) 33. On October 27, 2004, W.H.T appeared before the Saint Paul City Council regazding the over consumption of police resources. (Ex. 34.) 34. On October 29, 2004, the City served a Notice of Violation on W.H.T. (Ex. 15.) 35. The City of Saint Paul is seeldng conditions on the license of W.H.T. for things that it admits that W.H.T. is already successfully doing, and that it seeks those conditions despite the fact that W.H.T. has not mismanaged the licensed activity. (Testimony of Christine Swindler, Steve Parsons.) (Exs. 15, 24, and 33.) 36. The hearing in this matter was originally scheduled for January 26, 2005, but was later rescheduled several times either by agreement of the parties or motion to 7uly 8, 2005. (Ex. 18-23.) Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: The Saint Paul City Council and the Administrarive Law Judge haue jurisdicrion in this matter pursuant to § 14.55 (2004). 310.05 of the Saint Paul Legislative Code (2004) and Minn. Stat. § 1293065-1 A5-ior�d. 2. The hearing was conducted in accordance with the requirements of Minnesota Statutes Sections 14.57 to 14.62 and applicable portions of the procedures set forth in Section 310.05 of the Saint Paul Legislarive Code. 3. The City has given proper notice of the hearing in this matter and has fulfilled all relevant substantive and procedural requirements of law or rule. 4. The Notice of Hearing was proper in form and was validly served. 5. The City of Saint Paul has the burden of proof to establish by a preponderance of the evidence that W.H.T. violated Saint Paul Legislative Code § 310.06(b)(8). See in re Kaldahl, 318 N.W.2d 532, 535 (Minn. Ct. App. 1988). 6. The Saint Paul Legislative Code § 310.06(b)(8) states that the City Council may take adverse action if "[t]he licensed business, or the way in which such business is operated, maintains or permits conditions that unreasonably annoy, injure ar endanger the safety, health, morals, comfort or repose of any considerable number of inembers of the public." 7. Adverse action is defined in Saint Paul Legislative Code § 310A1 to include the imposition of conditions on a license. 8. The City failed to meet its burden by establishing that "members of the public" have complained that the conditions at the Warehouse Nightclub unreasonably annoy and endanger the safety, health, morals, comfort or repose of those in the vicinity near the licensed activity. The Saint Paul Legislative Code does not define the meaning of "Members of the Public," nor does it define any other terms in Section 310.06(b)(8). Minnesota statutes and case law do address the definition of "Members of the Pubiic," and these definitions control in this case. Based on the controlling definitions, it is clear that the City of Saint Paul has failed to meet its burden of proving that the Wazehouse Nightclub unreasonably annoys, injures or endangers the safety health, morals, comfort or repose of any members of the public, much less a considerable number. Absent evidence of this unreasonable interference, the City has failed to meet its burden of proof for this adverse action. 9. In Minnesota, W.H.T. has a duty to exercise reasonable care in maintaining orderly premises far the protecrion of their patrons. W.H.T.'s duty is not one of strict liability and Minnesota courts have specifically refused to impose strict liability upon tauern owners. W.H.T. only has a responsibility to patrons for foreseeable incidents. The City has failed to establish a record that establishes that W.H.T. has been negligent regazding the manner in which it operates its business. 10. The City's application of Saint Paul Ordinance 310.06(b)(8) is unconstiturional as applied to W.H.T. because Saint Paul employs the ordinance as a basis for banning rap and other urban music at the Warehouse Nightclub. A ban on rap music violates the First Amendment of the United States Constitution and therefore cannot serve as the basis for this adverse action. 11. The City's appiication of Saint Paui Legislative Code Section 310.06(b)(8) is unconstitutional in this case and is vague for several reasons. For a law to be valid "persons of common intelligence must not be left guessing at the meaning of the ordinance nor differ as to its 1 293 065-1 ( 0�-/OboZ. applicarion." First, in this case, the City failed to establish that Secfion 310.06(b)(8) establishes an objective standard against which W.H.T. can judge whether it is maintaining or pemutting conditions that violate the ordinance. Second, there is no objective standazd for deterxnining when W.H.T. unreasonably annoys, injures or endangers safety, health, morals, comfort or repose. Third, 310.06(b)(8) fails to define "any considerable number of inembers of the public." Finally, those responsible for the enforcement of the laws and ordinances of the City of Saint Paul differ to Section 310.06(b)(8) application in this circumstance. As a result, the evidence shows that 310.06(b)(8) is vague as applied. Therefore, it cannot serve as the basis for this adverse action. 12. The City has not met its burden to show that a violarion of Saint Paul Legislative Code § 310.06(b)(b) occurred. 13. The City's recommended condirions on W.H.T. are not tailored to address a specific violation of the Saint Paul Legislative Code. As a result, the proposed conditions are arbitrary or capricious and are not a reasonable exercise of its discretion under Section 310.06 of the Saint Paul Legislative Code. RECOMMENDATION IT IS HEREBY RECOMMENDED: That the Saint Paul City Council DISMISS the adverse action initiated against W.H.T. Dated this _ day of , 2005. Judge Richazd C. Luis Administrarive Law 7udge 1293065-1 os -r�a MEMORANDUM t293065-1 QS oZ. STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE ST. PAUL CITY COUNSEL In Re the Licenses held by WHT, Inc., d/b/a WHT, INC., DB/A AMERICAN American Sports Cafe — Playground for the SPORTS CAFE premises located at 2554 Como Avenue in CLOSING ARGUMENT St. Paul OAH Docket No.: 7-6020-16362-2 W.H.T. safely and responsibly manages the Warehouse Nightclub in accordance with the law. The City of Saint Paul brought this adverse action alleging that W.H.T. violated Saint Paul Legislative Code § 310.06(b)(8) by maintaining or permitting conditions that unreasonably annoy, injure or endanger the safety, health, morals, comfort or repose of any considerable number of inembers of the public. The City does not allege any violations of any specific liquor ordinance, but relies only on a vague provision that it uses when it cannot prove anything. No evidence was presented showing how W.H.T. violates § 310.06(b)(8). The City's case is a moving target. As the evidence showed, W.H.T. employed all of the City's suggested policies at the time this action commenced. The City's own witnesses testified that a business complying with its suggesfions, as the Wazehouse has done, would be a safely and responsibly managed business m compliance with Saint Paul standards. Yet the City still argues that W.H.T. violates § 310.06(b)(8). The vagueness of § 310.06(b)(8) allows the City to continue to make this claim. The central issue in this case is whether W.H.T. maintains ar permits conditions that caused the alleged incidents. The City argues that W.H.T. should be strictly liable for all disorderly behavior in close proximity to its premises. This is not the standard license holders a5-ia6a aze held to by §310.06(b)(8), however, and it is not the standazd recognized by the Minnesota Supreme Court. Both § 310.06(b)(8) and the Minnesota Supreme Court hold license holders, like W.H.T., to a negligence standard. As the evidence has shown, W.H.T. safely and responsibly manages the Wazehouse Nightclub. The City of Saint Paul has failed to prove negligence on the part of W.H.T. It is for this reason that this administrative body should not recommend adverse acrion. I. THE CITY OF SAINT PAUL HAS FAILED TO MEET ITS BURDEN OF PROOF. The City of Saint Paul has the burden to prove by a preponderance of the evidence that W.H.T. violated Saint Paul Legislative Code, Sec. 310.06(b)(8). See in re Kaldahl, 318 N.W.2d 532, 535 )(Minn. Ct. App. 1988). The City has failed to meet this burden. Saint Paul Legislative Code, Sec. 310.06(b) states in relevant part: ...Adverse action may be based on one (1) or more of the following reasons, which are in addition to any other reason specifically provided by law or in these chapters: (8) The licensed business, or the way in which such business is operated, maintains or permits conditions that unreasonably annoy, injure or endanger the safety, health, morals, comfort or repose of any considerable number of inembers of the public. The most important aspect of this ordinance is the requirement of a nexus between the actions of the licensed business and the alleged disorderly behavior. It is not sufficient for disorderly behauior to have merely occurred at the licensed establishment. The business has to operate in a way that permits the disorderly behavior. Id. In addition, the presence of the word "unreasonably" refutes the shict liability standard the City seeks to impose. The City failed to even allege that members of the public haue been affected by activities at W.H.T. Further, the City has failed to prove that W.H.T. is operated in an unreasonable manner. 1284838-2 2 I �. I - - A. Patrons are not "members of the public" under The Saint Paul Legislative code and therefore the City has no evidence to supporC its claim of an ord'mance violation. The Saint Paul I,egislative Code requires the licensed business to unreasonably annoy, injure or endanger "members of the public" in some manner. See § 310.06(b)(8). The safe and responsible management of the Warehouse Nightclub has not annoyed, injured or endangered "members of the public" within the meaning of the Saint Paul Legislative Code and therefore the City has no basis for an adverse action against W.H.T. The Saint Paul Legislative Code does not define the meaning of "members of the public," nor does it define any of the other terms in § 310.06(b)(8). However, § 2.18 of the Saint Paui Legislative Code states that definitions established by the State of Minnesota by statute or case law shail apply to the Saint Paul Legislative Code unless cleazly in conflict with the definitions, context or provisions of the Legislative Code. Saint Paul Legislative Code § 2.18. Minnesota statutes and case law do address the definition of "members of the public," and these definitions should be controlling in this case. Minnesota Statute § 609.74 defines the crnne of a public nuisance. Clause one of Section 609.74 defines a nuisance as "a condition, which unreasonably annoys, injures or endangers the safety, health, morals, comfort, or repose of any considerable number of inembers of the public." Minn. Stat. § 609.74(1). This clause is identical to § 310.06(b)(8). The advisory committee comment to § 609.74 explains the reason for the change from "persons" to "members of the public" in the stalute. According to the comment, the term "members of the public" was added because in order to be a public nuisance, the public must be affected. It is possible for a considerable nuxnber of persons to be affected without affecting the public. Advisory Committee Comment to Minn. Stat. § 609.74. Minnesota case law further explains this dis6nction between "persons" and "members of the public." In Jones v. Farnham, 299 Minn. 156 (1974), the Minnesota Supreme Court stated tzsasss-z 3 05 /t1ro� that for there to be a violation of Minn. Stat. § 609.74 the defendant must obstruct or interfere with the use and enjoyment of the victim's properry. Jones, 299 Minn. at 156. It should be noted that in .7ones, the court was discussing the real property of the victims. See id. The issue was whether Farnham's trees interfered with Jones' free use of his adjacent reai property. Under § 609.74(1) and § 310.06(b)(8) the victun is the "members of the public." Therefore, Jones sets the precedent that "members of the public" aze those who aze obstructed from the free enjoyment of their real property. Patrons do not qualify as "members of the public" under Minnesota Statute § 609.74(1) or Saint Paul Legislative Code § 310.06(b)(8) because they do not haue property with which the alleged nuisance activity interfered. Only neighbors of the licensed activity have property with which the activity could interfere or obstruct. The Warehouse is located in an industrial area. The City introduced no evidence that adjoining landowners have been affected by W.H.T. Furthermore, the City of Saint Paul itself defines "members of the public" as "neighbors." See http:/lwww.stpauL, o� vldepts/code_enfarcementlprotocols.html (last visited July 14, 2005). The Neighbarhood Housing and Property Improvement website defines "nuisance" under Minnesota Statute § 617.80. According to the Saint Paul website, "a nuisance is anything that bothers or annoys more than just one neighbor." Id. In fact, the Saint Paul website repeats that definition twice. See Id. (notes a and d.). Violations of Minnesota Statute § 609.74(1) consritute a nuisance under § 617.81(2)(3), therefore the Saint Paul website clearly defines the same language employed by Saint Paul I,egislative Code § 310.06(b)(8). t Saint Paul cites the wrong section of the Minnesota Statute. Section 617.80 is the definitions secrion for nuisance abatement orders. Secrions 617.81 through 617.87 state the procedures for handling nuisance properties. tzsasss-z 4 �� ♦ . - Based on the definifions given above, it is clear that the City of Saint Paul has failed to meet its burden of proving that the Warehouse Nightclub unreasonably annoys, injures or endangers the safety, health, morals, comfort or repose of any members of the public, much less a considerable number. None of the police calls in E�ibits 2-14 came from neighbors of the Warehouse Nightclub, nor did any of the incidents involve neighbors of the Wazehouse Nightclub. No neighbors were ever injured in an incident, nor was the free enjoyment of their property interfered with by the activities of the Wazehouse Nightclub. Absent evidence of this unreasonable interference, the City has failed to meet its burden of proof and no adverse action should be taken against W.H.T. and the Warehouse Nightclub. B. Even if Patrons were "members of the public" under the Saint Paul Legislative Code, the City still could not meet its burden of proving a violation of the ordinance. 1. The City did not even look at the Warehouse Nightclub before concluding that the nightclub violated the ordinance. The City started these administrative proceedings because it sought W.H.T.'s compliance with a list of conditions. The records show that the Warehouse already operates its business, at its expense, consistent with the requested conditions. The City's case relies on the testimony of Commander Strickland, Officer Pazsons, and Kristine Schweinler. The last time Officer Parsons visited the Warehouse Nightclub was the summer of 2003. Kristine Schweinler has never been to the Wuehouse Nightclub. Kristine Schweinler, from LIEP, testified that if a business complied with the proposed conditions, then it would be an effectively managed business that does not violate § 310.06(b)(8). Had LIEP investigated the Warehouse Nightclub before bringing this action, it would have found that the Warehouse already complies with the proposed conditions. Officer Parsons, Officer Sims, Officer Williams and Officer Townsend all testified that despite the latter three having duect knowledge of the conditions at the Warehouse, Officer 1284838-2 5 G�5-��l0� Pazsons never questioned them about whether the City`s suggestions had been implemented at the Warehouse or whether W.H.T. was responsibly managing the Wazehouse. Had the City attempted to determine whether the Wazehouse Nightciub complied with its conditions, it would have discovered that an adverse action was unnecessary. Exhibit 241ists the City's proposed conditions. Fust, the City wants the Warehouse Nightclub to end its eighteen+ nights. The City recently passed an ordinance addressing eighteen+ nights, so trris condition is no longer necessary. This condition is also the subject of the objection W.H.T. made at the start of the administrarive hearing. While W.H.T. does not chailenge this administrative body's authority to rule in this matter, W.H.T. requests that the record reflect its objection to ex parte communicarions between Virgina Palmer and the Saint Paul City Council. These communications have effected the Saint Paul City Council's ability to later unpartially rule in this matter. Saint Paul Legislative Code § 310.05 (c-2) states that "No interested person shall, with knowledge that a license matter has been scheduled for adverse hearing, convey or attempt to convey, orally or in writing, any information, argument or opinion about the matter, or any issue in the matter, to a council member or his or her staff until the council has taken final action on the matter..." § 310.05(c-2) (emphasis added). Virginia Palmer advised the City Council on the adoption of the eighteen+ ordinance. She appeared in her official capacity at City Council hearings and spoke regarding the adoption of the ordinance while W.H.T. was not allowed to address the Council members because of this ongoing action. Whether she specifically mentioned this case to the City Council is irrelevant. Eighteen+ is an issue in this matter and therefore discussing eighteen+ with the City Council was a violation of the Saint Paul Legislative Code. W.H.T. recognizes that one of Ms. Palmer's roles is to advise the City Council, but the Legislative Code makes clear that she could not advise them regarding the 1284838-2 6 dS'/O�� eighteen+ ordinance until after the conclusion of this adverse action. As it stands now, the City Council has already made a decision regazding an issue in this case before even conducting a hearing with W.H.T. This also violates the hearing procedures contained in the Saint Paul I,egislative Code and W.H.T. has serious concerns regarding its ability to receive a full and impartial hearing at the City Council in light of these ex parte communications. Second, the City wants the Warehouse to use a metal detector on all entering guests. The Warehouse already uses metal detectors, so this condition is unnecessary. See Photograph Exhibit 29 (depicting the walk through metal detector and wand), testimony of Mr. Augustyn. Third, the City wants the Warehouse to have interior and exterior surveillance cameras. It wants the cameras to be monitored and it wants the tapes to be available to the police. Again, the Warehouse already has interior and exteriar cameras and monitors them. See Photograph Exhibit 29 (depicting the surveillance monitors), testimony of Mr. Augustyn. This condition is unnecessary. Next the City requests that the Wazehouse close its door to new customers at 1:00 a.m. and institute a last call at 130 a.m. These conditions are more restrictive than Minnesota law and while the Warehouse has not stopped allowing customers to enter at 1:00 a.m., it complies with Minnesota law regarding alcohol sales. The Wazehouse also denies access to its parking lot at 1:30 a.m., so if patrons wish to park at the Warehouse they must arrive before that time. Most importantly, the City failed to present evidence of a nexus between patrons entering between 1:00 and 1:30 and § 310.06(b)(8). This condition is unnecessary. The City also wants a condition placed on W.H.T. that it must check every patron's ID and only serve alcohol to individuals over the age of riventy-one. Staff inembers already check every patron's ID. The off duty officers also testified that they have witnessed Wazehouse tzsasss-2 � G�S -1Ob; security deny entry to individuals without proper identification or who violate the dress code. The bar also does not serve alcohol to anyone under twenty-one. Moreover, the City of Saint Paul aclaiowledges that no violation of already existing liquor laws has occurred and that there is no evidence that underage patrons are consuming alcohol in the Wazehouse Nightclub. See Eachibit 33. The City requests a condition be placed on the W.H.T. license even though, (1) it admits that the license holder has been responsible with regazd to the manner in which it serves patrons, and (2) Minnesota law already imposes a duty on license holders regarding the service of patrons. This condition is completely unnecessary and redundant. Sixth, the City wants W.H.T. to agree that it is strictly liable for patron and non-patron behavior in the parking lot. The City attempts to impose a burden on W.H.T. that is inconsistent with the City lore and Minnesota common law. See discussion at II. While W.H.T. and the Warehouse do not concede that they aze strictly responsible for patron behavior outside on the licensed premises or in the parking lot, they have already taken steps to control patron behavior in the parking lot. W.H.T. employs four off duty police officers who wark crowd control in the parking lot and assist the bouncers if there is a problem inside the Warehouse Nightclub. Finally, the City requests that W.H.T, place a member of its staff at every entrance of the American Sports Cafe and Wazehouse after 9:00 pm. every night when the Wazehouse is open. W.H.T.'s only objection to this suggestion is that it is unnecessary to put staff at the American Sports Cafe entrances. It is impossible to go between the Sports Cafe and the Warehouse during Warehouse business hours because the connecting doors aze always locked. Moreover, the Warehouse already piaces staff inembers at every entrance and exit from the Warehouse Nightclub to monitor the pairons. Again, the City attempts to impose a condition on the W.H.T. izsasss-z 8 L!5' ��6� license that is not connected to any of the alleged concerns with the Warehouse. This condifion is unnecessary. In addition to the official conditions requested by the City, Officer Parsons and other members of the City have requested that the Wazehouse change its music format because it attracts "these people." Testimony of Officer Pazsons. In the City's response to W.H.T.'s request for admission the City states, "the City alleges that the manner in wkrich W.H.T. presents its entertainment format and markets to a clientele has drawn a crowd which has continuously caused problems for police responding to calls at the address." Exhibit 33. According to the City, by playing B96 type music, the Warehouse attracts "these people" and "these people" cause problems requiring excessive police assistance. Testimony of Officer Pazsons. As an example of this, Officer Parsons cited the Milwaukee incident. Exhibit 13. Officer Parsons attempted to argue that because the Warehouse plays rap music, four individuals stole a car in Milwaukee so they could drive it to the Warehouse in Saint Paui. Testimony of Officer Parsons. Moreover, Officer Parsons and the City attempted to argue that because the suspects were apprehended in the Warehouse parking lot, the Warehouse is responsible for the carjacking. This argument regazding a connection between the Warehouse music and disruptive behavior is flawed. Officer Parsons, members of LIEP, and Virginia Palmer seemed unaware that the management of the Warehouse has already taken affirmative steps to soften the music played on urban nights. The City did not know that the music played within the Warehouse Nightclub is radio edited, meaning that it is the same music radio stations play, which is subject to FCC regulations. Any content not allowed on the radio is not played in the Warehouse. Therefore, any language that could have arguably incited violence has been removed from the Warehouse play list by management. The four individuals involved in the Milwaukee carjacldng did not need to come izsasss-z 9 05 /06 � to the Warehouse to listen to the music. They only had to tum on the radio in the car to listen to the Warehouse's music. Even if "these people" come to the Wazehouse, W.H.T. and the Wazehouse staff have done nothing to incite "these people" into committing violent acts, and therefore no violation of § 310.06(b)($) has occurred. Had the City monitored the Warehouse premises or interviewed the off duty officers who work there, it would have known that this adverse action is unnecessary. W.H.T. wants to maintain a safe business because, as Paul Augustyn stated, if the patrons do not feel safe at the Warehouse, they will not return. This administrative body should not recommend that the City impose unnecessary conditions on W.H.T. and the Warehouse Nightclub without a violation § 310.06(b)(8). 2. The Warehouse Nightclub has not had a relevant incident in ten months, making it impossible for the City to meet its burden of proof in this case. The City also cannot meet its burden of proving unreasonable management of the Warehouse Nightclub when there has not been a relevant incident at the club in over ten months. The City alleges that W.H.T. maintains a condition that unreasonably annoys, injures, or endangers the safety of a considerable number of inembers of the public. The word "maintains" suggests and ongoing problem. The absence of a relevant incident for the past ten months indicates that W.H.T. is not maintaining anything but an efficient and safe business. In addition, Officers Sims, Williams, and Townsend all testified that the condition at the Warehouse Nightclub has improved. They have seen the changes the Wazehouse has voluntarily implemented and they do not believe that the management of the Warehouse caused the incidents complained of by the City. They also do not feel that W.H.T. and the Warehouse are in violation of § 310.06(b)(8). If police officers are not qualified to idenrify what unreasonably endangers the safety of inembers of the public, then it is difficult to see how any license holder could 1284838-2 1 Q o5-�z�2, determine when it is in compliance with the law. This would make the Saint Paul ordinance vague on its face. Because the Wazehouse Nightclub has not had an incident in over ten months and the City has failed to meet its burden of proving a violation of § 310.06(b)(8), this administrarive body should not recommend adverse acfion. II. COMMON LAW ESTABLISHES A CLUB OWNER'S DUTY TO THE PUBLIC AND PATRONS FOR CONDUCT OF A PATRON ON OR NEAR THE PREMISES SO THERE IS NO NEED FOR LICENSE CONDITIONS. Minnesota common law establishes W.H.T.'s duty to protect its patrons. The Courts carved out this duty considering the interests of the public to remain safe in licensed establishments and faimess to the establishments in what patron actions are within establishment control. This long standing "innkeepers duty" sufficiently and fairly establishes W.H.T.'s duty and therefore this administratve body should not adopt the strict liability standazd proposed by the City of Saint Paui. In Minnesota, innkeepers haue a duty to exercise reasonable care in maintaining orderly premises far the protection of their patrons. Filas v. Daher, 218 N.W.2d 467, 469 (Minn. 1974) (citing Windorski v. Doyle, 18 N.W.2d 142 (Minn. 1945); Klingbeil v. Truesdell, 98 N.W.2d 134 (Minn. 1959); Swanson v. The Dugout, Inc., 98 N.W.2d 213 (Minn. 1959). A tavern owner's duty is not one of strict liability and Minnesota courts have specifically refused to impose strict liability upon tavern owners. See AZhoZm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986) (rejecting a higher standard of care for innkeepers), Devine v. McLain, 306 N.W.2d 827, 831 (Minn. 1981) (refusing to impose strict liability stating that "no other jurisdicrion has gone this far."). Whether an innkeeper is responsible for patron actions outside of the licensed premises is a factual question depending on whether the violent activity was foreseeable. See Alholm, 348 N.W.Zd at 109 (explaining the holding in Schwingler v. Doebel, 309 N.W.2d 760 (Minn. 1981)). 1284838-2 11 a6-/o�� In this case, the City of Saint Paul requests that W.H.T. be held strictly liable for the violent acts of those on the premises or in the parking lot, regardless of whether those individuals aze patrons. See E�ibit 24, Proposed Condition # 6. Not only would the imposifion of strict liability contradict the Saint Paul I,egislative Code, but it would contradict the long standing decision of the Minnesota Supreme Court to hold innkeepers to a negligence standard for patron behavior. W.H.T. specifically takes issue with the City's claim that it is responsible far all patron behavior in the parking lot. Minnesota innkeeper liability does not establish a specific duty to patrons with regazd to the pazking lot. Innkeepers only have a duty to patrons for foreseeable incidents. See Alholm, 348 N.W.2d at 109 (explaining the holding in Schwingler v. Doebel, 309 N.W.2d 760 (Minn. 1981). Whether incidents in the parking lot aze foreseeable depends on the factual circumstances of each incident, not whether the parking lot is a part of the leased premises. Proposed condirion #6 would make W.H.T. strictiy liable for all incidents in the parking lot. Over forty years of court precedent establishes that holding innkeepers strictly liable for patron behavior, regardless of where it occurs, is unreasonable and improper. This administrative body should not support the implementation of a condition that directly conflicts with the sound judgment of the Minnesota Supreme Court. III. THE CONDITIONS ON THE W.H.T. LICENSE REQUESTED BY THE CITY ARE UNitEASONABLE FOR A FIRST ADVERSE ACTION. Adverse actions are a tool Cities can use to force uncooperative, non-compliant establishments to obey the law. Conditions on licenses are appropriate when license holders repeatedty refuse to comply with the law and further measures are required to obtain compiiance. Because the Wazehouse Nightclub is neither uncooperative nor non-compliant, the City's 1284838-2 12 a5-/o6� proposed conditions are excessive and this administrative body should not support their addition to the W.H.T. license. The City of Saint Paul's goal should be to ensure that its licensed establishments are complying with the law. The City does not even allege a legal violation by W.H.T. See Bxhibit 33: City's Responses to W.H.T.'s Requests for Admission. In this case, the City's proposed conditions are excessive because W.F3.T. is a cooperative, compliant establishment. When the Warehouse management identifies a possible security issue, it addresses the problem before the City even becomes involved. All of the Officers, including Officer Parsons, testified that Wazehouse management has been responsive to problems. When there was an incident at teen night, W.H.T. ended teen night. When there was a safety concern about glass bottles, management stopped using glass bottles. When the officers expressed a concern about parking lot lighting, management installed more lights in the parking lot. One of the off duty officers even compared the newly lit parking lot to a baseball field. When there was a concern about incident prevention, management installed large signs informing patrons that they and their vehicles were under surveillance. See Photograph Exhibit 29 (depicring one of the signs). Officer Williams and Officers Townsend testified that they and Warehouse management have informed patrons that the Wazehouse Nightclub has zero tolerance for disorderly behavior. This zero tolerance is not an idle threat. Warehouse security 86's individuals engaging in disorderly behavior and to ensure that 86'd patrons cannot return, the same security staff works the entrance every mght, and the staff maintain a notebook with Polaroid pictures of a1186'd individuals. The Warehouse aiso promotes incident prevention by placing the off duty officers at the entrance to the parking lot so that they are clearly visible from the street and upon entering the parking lot. izaassa-z 13 05 ic�� The sole goal of this adverse action is to get a head start on h•ying to close the Warehouse. By placing conditions on the license, one minor getting past with a good, fake ID or an incident in the pazking lot, regardless of whether it even involved patrons, would give the City a basis for a second adverse action with even sriffer penalties. With the Wazehouse cooperating in addressing any possible concerns, the excessive condirions proposed by the City would only serve to hann W.H.T. The placement of conditions on a license results in the devaluation of the property. The perception in the market is that any condi6ons placed on a license carry forward to the new license granted to the new owner of the property. While this may not actually occur, the market perception is that it does occur. The resale value of the property is based on perceprion. Therefore, placing excessive conditions on the Warehouse license only serves to diminish the value of the property. This administrative body should not support the imposition of these excessive conditions. IV. THE SAINT PAUL ORDINANCE IS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED AND THEREFORE CANNOT BE THE BASIS FOR AN ADVERSE ACTION AGAINST W.H.T. The Saint Paul ordinance, § 310.06(b)(8), is unconstitutionally vague on its face under both the United States and Minnesota Constitutions and therefore cannot be the basis for an adverse action against W.H.T. Moreover, § 310.06(b)(8) is unconstitutional as applied to W.H.T. because Saint Paul employs the ordinance as a basis for banning rap and other urban music at the Warehouse Nightclub in violation of the First Amendment of the United States Constitution. This provides further reason that § 310.06(b)(8) cannot serve as a basis for an adverse action against W.H.T. This admivistrative body should not recommend adverse action in this case. To do so would violate W.H.T.'s constitutionally protected due process rights. t284838-2 14 05-�0�� 1. Section 310.06(b)(8) is unconstitutionally vague on its face. W.H.T. challenges Saint Paui Legislative Code § 310.06(b)(8) as unconstitutionally vague. Nofice of this challenge was given to both the Minnesota Attorney General and the Saint Paul City Attomey. The Saint Paul ordinance must meet due process standards of definiteness under both the United States Constitution and the Minnesota Constitution. City of Edina v. Dreher, 454 N.W.2d 621, 622 (Minn. Ct. App. 1490) (citing State v. Newstrom, 371 N.W.2d 525, 528 (Minn. 1985). For a law to be valid, "persons of common intelligence must not be left to guess at the meaning of the ordinance nor differ as to its application." Id. Because fundamental rights are not at issue in this case, W.H.T. must show that the ardinance lacks specificity as to W.H.T.'s conduct and not as to some hypotheticai situation. Dreher, 454 N.W.2d at 622 (citing State v. Kager, 382 N.W.2d 287, 289 (Minn.Ct. App. 1986). W.H.T. must prove a constitutional violation beyond a reasonable doubt. Dreher, 454 N. W.2d at 622 (citing Rio Vistn Non-Profit Housing Corp. v. County of Ramsey, 335 N.W.2d 242, 245 (Minn. 1983). The application of § 310.06(b)(8) in this case is vague for several reasons. First, there is no objective standard against which W.H.T. can judge whether it is maintaining or permitting conditions that violate the ordinance. W.H.T. made cleaz that disorderly conduct was not allowed on the property and actually banned individuals who engaged in disorderly conduct. Yet, the city still alleges that W.H.T. maintains or permits the alleged disorderly conduct. If forbidding disorderly conduct does not place W.H.T. in compliance with § 310.06(b)(8), then the ordinance is unconstitutionally vague. In common usage, "forbid" and "permiY' are antonyms. If doing the opposite of what violates the statute does not comply with the statute, then the person of average inteiligence is left wondering how any acrion could comply with the statute. The tzsasss-2 15 05 -io�� ordinary person is le8 without any objective guide as to how to comply with the statute and left compietely at the mercy of the City's discretion. Second, there is no objective standazd for determiuing when W.H.T. unreasonably annoys, injures or endangers safety, health, morals, comfort or repose. Saint Paul does not define these terms in its Legislative Code. Objective standards could be applied to determine whether a license holder annoys or injures such as violations of noise or alcohol ordinances, but in the case against W.H.T., these standards haue yet to be employed. The City does not allege violations of any noise ordinances, and it admits that W.H.T. has not violated any liquor laws. None of the police reports entered in to evidence list W.H.T. or the Wazehouse Nightclub as a defendant. The Warehouse has not violated any objective community standazds that would put it on notice that its actions are unreasonable under the meaning of § 310.06(b)(8). Furthermare, the United States Supreme Court has held that "annoyance" does not meet the standard of definiteness required by the United States Constiturion. In Coates v. City of Cincinnati, a City ordinance made it illegal for three or more persons to assemble on the sidewalk and conduct themseives in a"manner annoying to persons passing by." Coates v. City of Cincinnati, 402 U.S. 611, 611 (1971). The Court ruled that, Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, 'men of common intelligence must necessarily guess at its meaning.' Coates, 402 U.S. at 614 (Connally v. General Consh-uction Co., 269 U.S. 385, 341). In this case, W.H.T. has had no standard of conduct specified for its behavior. The addirion of the word "unreasonably" in the Saint Paul Ordinance does not provide any more definiteness to the term "annoy." The Court's reasoning still applies: what some find unreasonably annoying others 1284838-2 16 os-�d�a will not find annoying at all. In fact, the addition of the term "unreasonably" makes the Saint Paul ordinance even more vague than the Cincinnati ordinance. The Cincinnati ordinance specifies that the conduct must be annoying to the person walking by. Coates, 402 U.S. at 611. The Saint Paul Legislative Code does not specify who deterniiues what is unreasonably annoying. Sometimes the term "unreasonable" signals an"ordinary person" standard and sometimes it does not. So, is the standard whether an ordinary person would find the conduct unreasonably annoying or is the standard whether the complaining individual finds the conduct unreasonably annoying? Persons of ordinary intelligence haue no indication as to who determines whether their business violates § 310.06(b)(8) of the Saint Paui Legislative Code. Even though W.H.T.'s policies are designed to safely and responsibly manage the Warehouse Nightclub in compliance with § 310.06(b)(8), W.H.T. has never had a sufficient standard of behavior by which to judge whether it will be safe from an adverse action under this ordinance. This lack of clarity makes the ordinance unconstitutionally vague. Moreover, the ordinance does not define who determines what endangers public safety. In this case, the off duty officers employed by W.H.T. testified that W.H.T. was not endangering public safety, while Officer Parsons testified that W.H.T. was endangering public safety. Persons of average intelligence aze left to wonder who's opinion matters more. Perhaps members of the pubiic decide whether their safety is endangered. If they feel unsafe, they don't return ar they file complaints against the Wazehouse itself. The lack of an objective standard allows the City to disregard the experience of four of its officers in favor of one officer's opinion, even though that officer has no first hand experience with the nightly activities at the Warehouse. The City is allowed to arbitrarily enforce this ordinance because the language in § 310.06(b)(8) is unconstitutionally vague. 1284838-2 17 as-��a Third, § 310.06(b)(8) is unconstitutionaliy vague because it does not define "any considerable number of inembers of the public." If "members of the public" are not neighbors as the State of Minuesota interprets "members of the public" to mean, then who are they? How many individuals are required to make a"considerable number?" The Saint Paul Legislative Code also does not indicate how to determine that a"considerable number" of inembers of the public aze harmed. Do a considerable nuxnber of inembers of the public need to each file complaints with the City against the offending license holder? Can one member of the public claim annoyance and then the City imputes that annoyance to all of his neighbors? Can a police officer make the determination that members of the public must be annoyed because he is annoyed? As in Coates, the Saint Paul ordinance specifies no standard of conduct by which license holders may judge whether they violate the law. Allowing the complaint of one member of the public or one police officer to meet the defuution of a"considerable number" of inembers of the public does not provide notice to individuals regarding what violates the Saint Paul ordinance. It would be impossible for a license holder to ensure that it did not bother a single individual in the city. The holding in Dreher supports this argument. In Dreher, the Minnesota Court of Appeals found an Edina dog-bazking ordinance vague as applied when the barking disturbed only the police officer on the case, even though the police officer had been sent to the home by a neighbor's complaint. Dreher, 454 N.W.2d at 623. Here, only Officer Parsons has complained about the Warehouse Nightclub. None of the police reports in E�ibits 2-14 cite any complaints by citizens against any member of the Warehouse staff. See Exhibits 2-14. The off duty police officers working at the Warehouse Nightclub all testified that they did not haue any problems with W.H.T: s management of the club. They did not see a 1284838-2 1 g os-�o� � violafion of § 310.06(b)(8) and they are responsible for enforcement of laws and ordinances. In fact, the off duty officers believe W.H.T. operates the Warehouse in a safe and responsible manner. Like in Dreher, this case essentially comes down to Officer Parsons' annoyance with the club. According to the United States Supreme Court, a city may not enforce an ordinance "whose violation may entirely depend upon whether or not a police officer is annoyed." Dreher, 454 N.W.2d at 623 (citing Coates v. Cincinnati, 402 U.S. 611, 614 (1971). To do so would be azbitrary enforcement of the ordinance. Dreher, 454 N. W.2d at 623. Without other complaints it would be improper to apply this statute to W.H.T. The evidence has shown that § 310.06(b)(8) is vague as applied. Therefore no adverse ac6on shouid be taken in this case. 2. Section 310.06(b)(8) violates the First Amendment of the United States Consfitution as applied. In this case, The City of Saint Paul attempts to use § 310.06(b)(8) to ban rap music from the Warehouse play list. A ban on rap music violates the First Amendment and therefore § 310.06(b)(8) is unconstitutional as applied to W.H.T. As such, § 310.06(b)(8) cannot serve as a basis for this adverse action. The elimination of rap music from the Warehouse play list does not appeaz on the official list of conditions proposed by the City, but members of the City have made it ciear that they expect the Warehouse Nightclub to remove rap music from its music format. See E�ibit 33, City's Responses to W.H.T.'s Requests for Admission; Testimony of Kristine Schweinler; Testimony of Officer Parsons; Cross-Examination of Paul Augustyn. The City of Saint Paul argues that the music format at the Warehouse Nightclub is what gives rise to this adverse action. Testimony of Kristine 5chweinler. As previously discussed, § 310.06(b)(8) is essentially a claim of public nuisance, therefore the City of Saint Paul seeks to ban rap music at the Warehouse based on a claim that the Warehouse creates a public nuisance. If a condition were placed on the usassa-z 19 05-JDlo� W.H.T. license stating that it could not play rap music at the Warehouse Nightclub, then W.H.T. would be subject to adverse action if it played any rap music in the fuhue. This amounts to censorstrip based on a public nuisance claim. The United States Supreme Court held in Near v. Minnesota that the eliminarion of an alleged public nuisance is insufficient state justification for bamliug protected speech. Near v. Minnesota, 283 U.S. 697 (1931). In that case, the State of Mimiesota claimed that Near's publication aimed to distribute "scandalous matter" that was "detrimental to public morals and to the general welfaze," that "disturb[ed] the peace of the community" and "provoke[d] assaults and the commission of crime[s]." Id. at 709. These clanns are almost idenrical to the claims the City of Saint Paui makes in reference to the Warehouse Nightclub and its music format. See Exhibit 33: City's Responses to W.H.T.'s Requests for Admission; Testimony of Kristine Schweinler; Testimony of Officer Parsons; Testimony of Commander Strickland. The Near Court ruled that while these justifications are generally legitimate state interests, they do not provide adequate reasons to restrict the fundamental right to free speech. Near, 283 U.S. at 707 & 723. Characterizing a business as a nuisance "does not permit an invasion of the constitutional immunity against restraint. Id. at 720. Saint Paul Legislative Code § 310.06(b)(8) cannot serve as a basis for this adverse action because its application in this case would be a violation of the First Amendment o£ the United States Constitution made applicable to the states through the Fourteenth Amendment. As a result, this administrative body should not recommend adverse action be taken against W.H.T. CONCLUSION Since W.H.T. began managing the Warehouse Nightclub, it has sought to comply with all Saint Paul suggestions, and has been proactive to promote safety. Each time the City approached �zsasss-z 20 a.s-io�a W.H.T. with a suggestion for improved safety, W.H.T. voluntarily complied at its own expense. Yet even though W.H.T. has complied with all of the City's suggesrions, the City still claims that W.H.T. violates § 310.06(b)(8) of the Saint Paul I,egislarive Code. Either § 310.06(b)(8) is vague as applied or W.H.T. has complied with it. The proposed conditions aze unnecessary. A ban on rap music would violate the First Amendment. The City has failed to meet its burden of proving W.H.T.'s unreasonable management of the Warehouse. W.H.T. safely and responsibly manages the Wazehouse and, for this reason, this administrative body should recommend that no adverse action be taken. Respectfully submitted, RIDER BENNETT, LLP Dated: , 2005 By Richard C. Scattergood (251069) Richard T. Franks (273569) Attorneys for W.H.T., Inc. 33 South Sixth Street Suite 4900 Minneapolis, MN 55402 (612) 340-8900 i2sasss 2 21 /�� =/�6a STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR Tf� ST. PAUL CITY COUNSEL In Re the Licenses held by WHT, Inc., d/b/a WHT, INC., DB/A American Sports Cafe — Playground for the AMERICAN SPORTS CAFE'S premises located at 2554 Como Avenue in REPLY ARGUMENT St. Paul OAH Docket No.: 7-6020-16362-2 ARGUMENT A. The City mischaracterizes the factual record in an attempt to hide the responsible management practices of W.H.T. First, the City fails to show that the License holder has been negligent regazding the operation of the licensed activity. The City contends that the music played attracts the wrong clientele, yet the record is devoid of any evidence showing a direct conelarion between the content of the music played and the behauior of patrons. The City would like the Court to believe that there is a gang problem at the Warehouse. The record is devoid of evidence that a gang problem exists. Finally the City makes an unwarranted connection between the illegal possession of firearms and the music played at the licensed establishment. The City has provided in Exhibits 2-14 police reports that they introduced into evidence supporting this adverse action. However, none of those police reports introduced into evidence indicates a correlation between the disorderly acts and gang activity. The City's reports themselves demonstrate the absence of gang activity. In fact, on each report the box or line that includes a gang, correlation is empty or aclrnowledges that the incident was not gang related. Furthermore, the testimony at the hearing reflects that in fact, the management discourages "gang patronage" a� <c�a of the bar and that it enforces a dress code designed to discourage gangs from entering the nightclub. Next, the City discusses gun incidents. The City, throughout its final argument, fails to address the true nature of its alleged weapons claims. The City contends that beer bottles are weapons and that an alleged assault occurred with a beer bottle. However, before that alleged incident took place, the Wazehouse/Playground had already replaced glass beer bottles with plasfic bottles in response to a suggestion by Officer Sims. Therefore, the incident could not have occurred at the Warehouse. Management, according to the City's key witness, addressed the glass bottle condition and has removed that threat. The City's witness testified that many serious assaults involving firearms and other weapons occurred at the licensed establishment. In reality, the record contains only one incident involving the use of a firearxn at Teen Night. That incident actually shows that license conditions are unwarranted in this case because, unlike other Saint Paul clubs, W.H.T. responds to security concerns. Before Officer Pazsons could even contact W.H.T. about tk�e Teen Night incident, management had already eliminated Teen Night for the patrons' safety. In fact, due to the preven6ve measures imitated by management and the presence of off- duty police officers, illegal fireazms have been recovered by law enforcement. One of those illegal firearms was recovered during a routine traffic stop and another when the off-duty officers investigated an individual sitting in a caz who was denied access to the Warehouse playground due to his age. In fact, Mr. Augustyn testified that the individual whom owned the gun had a permit to legally carry the firearm and he was charged with illegal storage and leaving it with his minor cousin in the car. Again, if there had been a number of incidents in which firearms were used to commit crimes, this evidence would have been introduced by the City. These incidents �z9osi6-i 2 as-io6� that the City refers to involve activities that are not directly related to the manner in which the Warehouse/Playground is operated. In fact, the record is cleaz from the evidence it is the patrons from the Warehouse, or the Off-Duty officers whom have directly assisted in the removal of firearms from the streets and the affirmative actions of management that has kept these weapons from inside the club. Furthermore, the redacted police reports are in the record and those police reports speak for themselves. Next, the City contends that the musical content is what attracts "These People" to the Warehouse/Playground and holds the License holder accountable for attracting "These People," yet the City fails to establish with a scintilla of evidence a nexus between gangs and the club. Police work can be based on speculation when initiating an investigation, however evidence is required beyond mere suspicion or speculation in order to convict an individual. A conviction requires a connection between the activity perceived and reality. The City desires to place conditions on the license holder based on the perception of individuals who failed to completely investigate this matter. For example, Reginald McDaniel, is a key person in this adverse hearing. Although W.H.T. is limited in most of the police reports, Reginald McDaniel has been identified as one of W.H.T's "problem patrons." W.H.T. uses the word "patron" loosely since he has been banned from the Warehouse/Playground. Reginaid McDaniel was involved in an incident in the pazking lot of the Warehouse/Playground that escalated into a fight, which the Saint Paul Police resolved as part of their off-duty and official roles at the Warehouse/Playground. After this incident McDaniel was told that his patronage was not desired and that he would be denied access to the club. This in the industry is laiown as 86'd. The Warehouse/Playground management saw a direct connection between problems at the nightclub and McDaniel and advised him responsibly iz9osi6-t 3 a5-�ob a after this one incident that his business was not welcome. During the hearing Officer Parsons tesrified that later that yeaz a car was carjacked in Milwaukee, Wisconsin and that the destinarion of "These People" ("perpetrators") was the Warehouse/Piayground. One of those individuais involved in the carjacking was later determined to be Reginald McDaniel. Once the perpetrators of the carjacking arrived at the Warehouse/Playground they were arrested by Saint Paul Officers who were assisted by the Warehouse/Playground OFF-Duty police officers. The management of the Wazehouse/}'layground played no role in this matter. The City claims that the Warehouse attracted Reginald McDaniel to the club, but this is untrue since McDaniel knew he would not be allowed to enter the Warehouse/Playground even if he drove there. If Reginald McDaniel would have attempted to enter the nightclub he would have been denied access. The Warehouse/Playground management deemed him as a problem individual and refused his patronage. Even if the police weren't present, management made it clear to its staff that it did not want his business. In fact, instead of discouraging the police activity at its business the management was supportive and is today supportive of police activity. In fact, the off-duty officers testified that they are a visible deterrent from the street, and that they are visible to patrons entering and leaving the Warehouse/Playground. Consequently Officer Pazsons is correct when he testified that it was "Brazen of "these people" to do these things wlule off-duty officers were present." Yes, the Reginald McDaniels of the warld are brazen and those who would perpetrate crimes are going to do it regazdless of the music, regardless of the level of security, and regardless of the presence of the police. All of these precautions aside, there is no nexus between the management of the Warehouse/Playground and the criminal intent of criminals like Reginald McDaniel. All the management has is a duty to mifigate the impact of iz9ost6-i 4 05-/0(� � people like Reginald McDaniel on the good-time and fun evening of its patrons that want to socialize and listen to top 40 music. The City claims the music is the nexus. We addressed the consritutional arguments in our closing argument now we will address the City's position. When looking at different forms of music iYs easy to label something without understanding it and iYs easy to make a type of music sound warse than it really is. The City embraces the term "Gangster rap". And so do we. They would love to create an inference that only criminals and gangs listen to Gangster Rap. But we heard testimony to the contrary, Commander Strickland's eleven year old listens to the music, and also Officer Sims. We also heard testimony from Raymount Lee that he is a youth counselor and that those he supervises take Hip Hop dance classes. However, all that Officer Parsons, Chrisrine Schweinler, and the City attempt to do is label populaz music today and place a face on those it thinks listen to it. The City doesn't understand today's musical culture. In response to W.H.T's request for admission regarding what W.H.T. has done to operate the licensed activity in a manner which creates or has created a serious danger to the public health, safety welfare or otherwise has perforxned its work or activity in an unsafe manner, the City responded by alieging that the manner in which W.H.T. presents its entertainment forxnat and mazkets to a"Clientele" that has drawn a crowd which has continuously caused problems for police responding to calls at the address is the violation. The City further alleges that the management of W.H.T. was not willing to limit its entertainment format until presented with adverse action. Exhibit 33, Request for Admissions. No evidence was introduced to show a conelation between the music played at the Warehouse/Playground and the actions of a select few patrons. This seems to be a generational arguxnent or feu. The constitutional arguments have been made. Yesterday's Elvis and the Beatles aze today's Black Eye Peas and Nelly. However, the same factor remains that 1290516-1 5 os-�o�a popular music is popular since the majority of a particulaz group has deemed it so by radio play, record sales and advertisement. The Wazehouse/Playground is a business. W.H.T. made a business decision to play and advertise the same Top 40 music played on two of the largest radio stations in the Twin Cites. Mr. Augustyn testified that the two most popular radio stations in the Twin Ciries metro area, B96 and KDWB, both play a majority of Top 40 songs on their daily rotation. These radio stations are licensed and regulated by the Federal Communication Commission and subject to fines and license revocation for the airing of inappropriate music. The City of Saint Paul is attempting to create a nexus between music played on the public airwa�es to the mismanagement of the licensed activity and that is not a viable argument. The City of Saint Paul admits that it cannot regulate the music that is played at the licensed activity and W.H.T. contends it is the same music played over the public airwaves. The City contends that W.H.T. changed the Warehouse/Playground nights due to its adverse action. But the record and the evidence establish that W.H.T. changed its Sunday nights due to comperition for its format base. Testimony from the Licensee's witnesses established that clubs in Minneapolis, Maplewood, and Saint Paul began to advertise with B96 and they all began to sponsor similar formats to W.H.T. with a heauy emphasis on the Top 40 played by B96 and KDWB. W.H.T. no longer dominates this market. Mr. Augustyn, testified that the adjushnent of the night was based on the popularity of its format at other Night Clubs, not the fact that the City brought an adverse action. If another format presented a viable business opportunity, W.H.T. would adjust to that new market factor. The market place is what determines the play- list of a club not an adverse action. W.H.T. made a business decision to modify its play-list to radio edited versions of the Top 40 songs. The licensee holder feels that the musical format issue is the most important since, the remaining issues that aze raised by the City are pre-textual, 1290516-1 6 o�-�o�� because the City recognizes that it cannot make W.H.T. change its musical format. Iiowever, the City can make it difficuit for W.H.T. to operate and, according to the City, even revoke W.H.T.'s license. Wimess after witness testified that the management of the club as far as safety measures, crowd control and responsiveness are good. In Fact, Officer Parsons tesfified that we followed all of his suggestions, and his testimony fiirther showed that W.H.T. went above and beyond those suggestions. The only exception to his suggestions was the fact that the musical format remained the same. Christine Schweinler testified that the only way she sees that W.H.T. violates 310.06(b)(8) was by the selection of musical format. When asked to admit that W.H.T has not violated, or performed any act which is in violation of, any provision of Chapter 310 of the Uniform License Procedures of Saint Paul Legislative Code or any statute, ordinance or regulation reasonably related to the licensed activity, regardless of whether criminal charges have ar have not been brought in connection therewith the City admitted that there were none. The City was asked to admit that there has not been a police incident since September 2004, and they admitted that fact and believed that was based in part because W.H.T. did forego its 18-up forxnat at approximately that rime as well as discontinuing teen nights. Again the City makes assumptions without facts. W.H.T., during that same time, only discontinued teen night and continued to operate consistent with its past practices except it changed Sunday to Friday for Urban Night and also began playing radio edits in early October. Furthermore, the City admitted that it cannot force W.H.T to change its musical format. Ms. Schweinler testified that W.H.T. needs condirions on its license for things the City admits that W.H.T. doesn4 have a problem with. However, the City argues that LIEP has proposed ia9ost6-t � os-�ob a conditions which, in their opinion and based upon their experience with other establishments, address the problems to the extent possible. The evidence shows that the W.H.T. management has not been cited during this license period for any alcohol related violations. The evidence also shows that the City's representatives have not regularly visited and observed the licensed premises during hours of operation more than three times in 2004. In fact, Christine Schweinler testified that she could not recall the last time she was at the licensed acrivity, if ever. Moreover, the City admits that W.H.T. has complied with any conditions set forth in the license, or set forth in the license or resolutions granting or reviewing the license. The City of Saint Paul brought this adverse action alleging that W.H.T. violated Saint Paul Legisiative Code § 310.06(b)(8) by maintaining or permitting conditions that unreasonably annoy, injure or endanger the safety, health, morals, comfort or repose of any considerable number of inembers of the public. The City does not allege any violations of any specific liquar ordinance, but relies only on a vague provision that it uses when it cannot prove anything. No evidence was presented showing how W.H.T. violates § 310.06(b)(8). The City's case is a moving tazget. As the evidence showed, W.H.T. employed all of the City's suggested policies at the time this action commenced. The City's own witnesses testified that a business complying with its suggestions, as the Warehouse has done, would be a safely and responsibly managed business in compliance with Saint Paul standazds. Yet the City still argues that W.H.T. violates § 310.06(b)(8). The vagueness of § 310.06(b)(8) allows the City to continue to make this claim. The central issue in this case is whether W.H.T. maintains or permits conditions that caused the alleged incidents. The City azgues that W.H.T. should be strictly liable for all disorderly behauior in close proxnnity to its premises. This is not the standard license holders are held to by §310.06(b)(8), however, and it is not the standard recognized by the Minnesota 1290516-I g os-�nea Supreme Court. Both § 310.06(b)(8) and the Minnesota Supreme Court hold license holders, like W.H.T., to a negligence standard. As the evidence has shown, W.H.T. safely and responsibly manages the Warehouse Nightclub. The City of Saint Paul has failed to prove negligence on the part of W.H.T. It is for this reason that this administrative body should not recommend adverse action. B. The City mischaracterizes Court precedent in order to find legal support for this adverse action. For legal support of its position in this case, the City focuses on adverse actions brought against other License holders that are distinguishable from this matter. The City erroneously relies on the Minnesota Court of Appeals decision in BAL, Inc., v. City of Saint Paul, 469 N.W.2d 341 (Minn. App. 1991). The City focuses on the fact that in that case, the City Council found that two violations of the license in a nine month period, along with the impact on a neighboring aparirnent complex, violated § 310.06(b)(8). The BAL case is discernable from W.H.T's. First, the Wabasha Baz is located on the west side of Saint Paul in a residential neighborhood. It was across the street from a 21-unit Apartment complex. The bar had conditions placed on its license for negligent management of the bar. That negligent management lead directly to conditions that required the bar's management to act responsibly by calling the police when criminal activity was observed, monitor the doar at closing to prevent patrons from exiting with beverages (A violation of City Code), and prevent loitering on the premises. Each and every one of these conditions directly impacted the manner in which the Wabasha Baz was operated and maintained. Furthermore, one of these conditions spelled out an already promulgated requirement of licensed activities to ensure that alcoholic beverages do not exit the premises if sold far on-sale purposes. 1290516-1 9 a5-��a In BAL, the City Council found that management had violated the conditions on the license and that management failed to properly manage the liquor licensed activity. In contrast, the WarehouseJPlayground is located in an industrial area. The City introduced no evidence regazding the impact on neighbors of the licensed activity. Moreover, the City admitted that no liquor violafions or any conditions on W.H.T's license were violated. W.H.T. discourages loitering through its off-duty Saint Paul Police Officers hired for crowd control, and W.H.T. has taken every reasonable measure to ensure the safe operation of the licensed activity. In BAL, the Court of Appeals held that the City Council can reject the ALJ's finding and make their own findings supported by the record. The City's reliance on the holding of the BAL case is ill- advised. The second case the City relies on is an unpublished decision, Metro Bar & Grill, Inc. v. City of Saint Paul, No. C6-00-1156 (Minn. Ct. App. May 1, 2001). This case is easily distinguished on similar grounds. Again this case involved a licensed activity in which conditions had previously been piaced on the license by the agreement of the parties after several violent incidents. Here the City erroneously interrupts the holding from the Minnesota Court of Appeals to recognize that it is appropriate to hold a licensed liquor establishment responsible for patron behavior. In fact, the Court of Appeals upheld the City Council's actions to enforce conditions pursuant to Saint Paul Legislative Code Section 310.06 (b)(5). This case also sheds some light on Officer Parsons' testimony. When asked about this case Officer Parsons insisted that the Warehouse/Playground was the worst licensed activity due to its patrons and the violent nature of acts that occurred. Although, during cross-examination he failed to recall the four shooting incidents at Arnellia's along with three fatal homicides. However, the City did stipulate that Amellia's third homicide, which occurred this time inside the licensed activity, is currently 1290516-1 1 Q a5-�ol� a in the criuiival justice system and that the City is unable to bring an adverse acfion at this time. The City added emphasis to the Arnellia's case, but the emphasis again is misplaced. The adverse action again was based on Arnellia's negligent management and by its failure to comply with the conditions on its license. In that adverse action, Arnellia's voluntarily agreed to conditions on its license the key condition is that they maintain in good working order at least four video cameras on the exterior of the building to constantly monitor the exterior of the premises. The adverse action was brought after the City served Arnellia's with a notice of violation. The ALJ recommended that the City dismiss the adverse action against Arnellia's. LIEP filed exceptions to the ALJ recommendation and the City Council moved to adopt the amended findings of fact and conclusions filed by LIEP, and imposed a penalty of a 45-day suspension. Arnellia's appealed to reverse the City Council's decision. The City Council found that Arnellia's management did not make a serious enough effort to comply with the conditions of its licenses and took adverse action for Arnellia's failure to comply. Again very distinguishable from the facts of W.A.T's adverse action, the City admits in its response for to W.H.T.'s request for admissions that WHT complies with all conditions on its license and liquor related ordinances. The City adds emphasis to the Arnellia's case where it is not appropriate, the issue is whether, or not conditions exist and if they do is the license holder violating those conditions. Since, this matter before the Court is not for a violation of § 310(b)(5), the City's reliance on this case is erroneous arid its emphasis is not supported by the decision in BAL or Metro Cafe. Finally, The City argues that LIEP has proposed conditions which, in its opinion and based on its experience with other aforementioned establishments, address the problems to the extent possible. Again, this argument is unreasonable. LIEP has a responsibility to ensure that t2sosi5-i 11 os-/o� a the State's Liquor laws are complied with and that license holders uphoid their duty to its patrons. However, LIEP in the past with other License holders may have had the justification to assist in the management of those licensed acrivities. W.H.T agrees that the City need not run each licensed acrivity especially when management is doing so in a responsible manner as in this case. Witnesses on both sides testified that W.H.T. has been responsible regazding implementing changes to promote safety, yet City wimesses claim that the music is the root cause of the problem. We ask that this particulaz song and dance fall on deaf=eazs and that this Court see their case for what it really is "Censorslup" in the guise of an adverse action. CONCLUSION Since W.A.T. began managing the Warehouse Nightclub, it has sought to comply with all Saint Paul suggestions, and has been proactive to promote safety. The proposed conditions are unnecessary. A ban on rap music would violate the First Amendment. The City has failed to meet its burden of proving W.H.T.'s unreasonable management of the Warehouse. W.H.T. safely and responsibly manages the Warehouse and, for this reason, this administrative body should recommend that no adverse action be taken. Respectfully submitted, RIDER BENNETT, LLP Dated: August 9, 2005 By Richard C. Scattergood (251069) Richazd T. Franks (273569) Attorneys for W.H.T., Inc. 33 South Sixth Street Suite 4900 Minneapolis, MN 55402 (612) 340-8900 1290516-I 1 Z