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06-313Council File # o�-3 i 3 Green Sheet # 3 U 3 61 '�l � Presented By � 8 9 10 11 12 13 14 15 16 17 18 19 2� 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 RESOLUTION CITY OF SAINT PAUL, NIINNESOTA �� WHEREAS, Tattoos from Crrease, Inc., d/b/a Tattoos from Grease, has applied for a Class N license to operate a tattoo parlor as a home occuparion for the premises located at 839 east 4`" Street, Aparhnent Two in Saint Paul; and WHEREAS, the Office of LIEP recommended denial of the license based on the determination of the zoning inspector that 839 East 4�' Street did not meet the criteria for a home occuparion;and WHEREAS, the license applicant was given notice of this determination in a letter dated December 20, 2005; and WHEREAS, the license applicant requested a hearing in front of an Administrative Law Judge to determine whether 839 East 4` Street, Aparhnent Two met the criteria for a home occupation; and WHEREAS, the matter was heard by the Administrative Law Judge on February 2, 2005; and a Report was issued on February 27, 2005, in which the Administrative Law Judge issued findings of fact, conclusions and recommendations and found that 839 East 4`� Street did not meet the criteria for a home occupation; and WHEREAS, the matter was heard before the Council on March 15, 2005 who had reviewed the recard of the proceeding before the Administrarive Law Judge; now, therefore, be it RESOLVED, that the record of the hearing before the Administrative Law Judge is hereby adopted including the Findings of Fact and Conclusions of the Administrafive Law Judge except as amended herein; Conclusion # 5 is amended to read as follows: The City has failed to prove� by a preponderance of the evidence that the ApplicanYs use of his properiy at 839 East 4`" Street, apartment two, is primarily as a tattoo parlor and not primarily as a residence, and fails to meet the requirements far a home occupation, Class N license. Conclusion # 6 is added and reads as follows: 6. The applicant resides at 839 East 4`� Street, Aparhnent Two, as is shown in Runsey County Tas records, Minnesota Driver's License Records, urility bills, and the one-year lease of applicanYs former residence to another individual Conclusion # 7 is added and reads as follows: Applicant has established a permanent home from which he has no present intention of moving and applicant has more than a temporary physical presence at 839 East 4t Street, Aparhnent Two. Conclusion # 8 is added and reads as follows: b l� -313 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 be it 8. Despite some structural changes to 839 East 4�' Street, Apartment Two, its essential character is of a dwelling unit with a living room, dining room, ldtchen, bathroom, and bedroom. The commercial use of 839 East 4"' Street is limited sufficiently so as to retain the residential chazacter of the unit and therefore the primary use of 839 East 4'" Street, Apartment Two, is residential and not commercial; and be it FURTHER RESOLVED, that the recommendarion ofthe Administrarive Law Judge is rejected; and FURTHER RESOLVED, that the premises of 839 East 4'" Street is approved as a locarion for ahome occupation for a Class N License, Tattoo Pazlor for Tattoos from Grease, Inc., d/b/a Tattoos from Grease; and be it FINALLY RESOLVED, that the approval of this locarion has the following conditions: 2. 3. Tattoos from Grease may have no more than one employee other than Greg Lehman, the resident of 839 East 4`� Street, Apartxnent Two; There may be no more than one customer per worker on the premises at a time; Tattoos from Grease may not expand into the other units at 839 East 4`" Street. A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and to the license holder. ^,,� �� � ��1� Requested by Departrnentof . / ��v� _ _ , Fo�roved�Ty A ey By: !u Form b M or Submiss�on to Council By: k �� AtlopGan Certiiied by Counctl Secretary BY � 2 Approved 6y or: D — �� By: � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � �l 1� _Z 1�l " `� J •.J oePa�,e�,o�ce,�ou��,�. ����ti�d� Green Sheet NO: 3030147 �p — Licease/Inspec6on/Environ Prot 24-MAR-O6 Contact Person 8 Phone: Deoartrnent Sent To Person InitiallDate � Rachel GundersOn 0 icenselln ectio nvirou Pro 2 ���� ASSign 1 icenseJln ectio mironPro De rtmeMDirector Must Be on Councii Agenda by (Date): Number Z � Atto Fof 3 or's Office Ma or/ASSistant Routing Order 4 ooncil • 5 i Clerk Ci C erk ToWI # of Signature Pages _(Clip All Locations for Signature) Action Requested: Approval of the attached resolurion memorializing adverse acflun taken against the Tattoo Pazlor license application submitted by Tattoos From Grease, Inc., d/b/a Tattoos From Grease for the premises located at 839 East 4ffi Street, No. 2 in Saint Paul. Recommendations: Approve (A) or Reject (R): Personal Service Contracts Must Answer the Following Questions: Planning Commission 1. Has this petson/firm ever worked under a coMrect for this departmenf? CIB Committee Yes No . Civil Service Commission 2. Has this personffirm ever been a city employee? - Yes No 3. Does this person/firm possess a skill not normally possessed by any current city employee? Yes No Explain all yes answers on separete sheet and attach to green sheet Initiating Problem, Issues, Opportunity (Who, What, When, Whe2, Why): A public heazing was held to discuss the Administrative Law Judge's Findings of Fact, Conclusions of Law and Recommendation from the Administrative Heairng held on Febmary 2, 2006. Advantages IfApproved: Memorialize Council acrion taken as a result of the Administrative Law Judge's Findings of Fact, Conclusions of Law and Recommendation. �[(�C'� /CD Ct�C VC Disa[ivaMaqes if Approved: � 2�06 None. MAYOR'S OFFlCE Disadvantages If Not Approved: ToWI Amount of CosURevenue Budgeted: Transaction: FundinpSource: ActivityNumber. �� :`�'?� ,`��`',r' ���:'�. u��+�� v'"� 4 hr;3 �J : Fi nancial 1 nformatioo: g a (ExPlain) Mli� � � LIB;�3 CITY OF SAIN'T PAUL Christopher B. Colem¢n, Mayor March 1, 2006 OFFICE OF THE CITY ATTORNEY Tahn J Choi, CiryAttorney �/��/�� Un��l 1 Civil Division 400 CiTy Hal1 Telephone: 651266-8710 ISWestKelloggBlvd. FacsimiZe:657298-5619 Saint Paul, Minnesat¢ 55102 NOTICE OF COUNCIL HEARING Greg Lehman Tattoos From Grease 839 East 4�' Street, No. 2 Saint Paul, MN 55106 RE: Tattoo Parlor license application submitted by Tattoos From Crrease, Inc., dlbJa Tattoos From Grease for the premises located at 839 East 4�' Street in Saint Paul. License ID #20050003190 OAI3 Docket No. 15-6020-17064-3 Dear Mr. Lehman: Please take notice that a hearing on thP ,- �grh� A�,_,; ; r��, ;�u�� concerning the above-mentioned application has been scheduled for Wednesday, March 15, 2006, at 5:30 p.m. in the City Council Chambers, Third Floor, Saint Paul Ciry Ha11 and Ramsey County Courthouse. You have the opportunity to file exceptions to the report with the City Clerk at any time during normal business hours. You may aiso present oral or written argument 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 pezmitted by law in the exercise of its judgement and discretion. Sincerely, � , ' Rachel Gunder n v Assistant Ciry Attorney cc: Diane Nordstrom, Office of Administrative Hearings, 100 Washington Square, Suite 1700, 100 Washington Avenue South, Minneapolis, NIN 55401 Mary Erickson, Council Secretary Christine Rozek, Deputy Director of LIEP 7eff Hawkins, LIEP AA-ADA-EEO Employer �_3 i3 STA"I'E OF MIlVNESOTA OFFICE OFADMINISTRATIVE $EAgINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota55401-2138 iELEPHONE: (672) 341-7600 TfY: (612) 341-7346 _.. ,� � r - � = r � F � �` C`-m v �. ���. � , F �'. - : '� � Vm'� a+c' h �� ' � s � - 1l � � �, , � s� iy u _ `m.�ii': February 27, 2006 Shari Moore, Cify Clerk City of St, Paul 170 City Hali 15 W. Ke(logg Blvd. St. Paul, MN 55102 ���� � ; L ��a����� Re: In Re the Application by Tattoos From Grease, lnc. for a C/ass N License; OAH Docket No. 15-6020-17064-3 Dear Ms. Moore: Enclosed herewith and served upon you by maii is the Administrative Law Judge's Findings of Fact, Conclusions of Law and Recommendation in the above- en#�tled matter. Also enc!osed is the officia! r�ccrd, with the exception o� the tape recording of the hearing. If you would like a copy of those tapes, please contact our office in writing or telephone 612-341-7448. Our file in this matter is now being closed. Sincerely, �K%L�G'� tT£l�� r �o, BEVERLY JONEB HEYDINGER Administrative Law Judge BJH:mo Encl. Telephone: (612) 341-7606 cc: R�"=�ur�-��cl� orr Gregory A. Ceh an Providing Impartial Hearings for Government and Citizens An Equal Opportunity Employer iministrative Law Division & Administrative Services Workers' Compensation Hearings Division Workers' Compensation Settiement Division acsimile: (612) 349-2665 - Facsimile: (612) 349-2691 � Facsimile: !6� 21 3a4aRR4 O6 i3 15-6020-17064-3 STATE OF MINNESOTA OFFICE OF ADMINISTATIVE HEARINGS FOR THE SAINT PAUL CITY COUNCIL In Re the Application by Tattoos From FINDINGS OF FACT, Grease, Inc. for a Class N License CONCLUSIONS OF l.AW AND RECOMMENDATION This matter was heard by Administrative Law Judge Beverly Jones Heydinger, on February 2, 2006, in Room 406, Saint Paul City Hall — Ramsey County Courthouse, 15 West Kellogg Boulevard, Saint Paul, Minnesota. The hearing was held pursuant to a Notice of Hearing dated January 20, 2005. Rachel Gunderson, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, Saint Paul, Minnesota, 55102, appeared on behalf of the City's O�ce of License, Inspections and Environmental Protection (LIEP). Gregory A. Lehman, 839 East 4th Street, Apartment 2, Saint Paul, Minnesota, 55106, appeared on behalf of Tattoos from Grease, Inc., d/b/a Tattoos from Grease. The record closed February 2, 2006, at the close of the hearing. There were no additional submissions. NOTICE This re�o!t is a recommendation, not a fin?! decision. The Saint Paa! Ciiy Councif will make a final decision after a review of the record and may adopt, reject, or modify these Findings of Fact, Conclusions, and Recommendation.� Pursuant to Saint Paul Legislative Code § 310.05 (c-1), the City Council shall not make a final decision until the parties have had the opportunity to present oral or written arguments to the City Council. Parties should contaet Shari Moore, City Clerk, City of Saint Paul, 170 City Hall, 15 W. Kellogg Bivd., Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting arguments. STATEMENT OF THE ISSUE The issue presented at this hearing was: Does the Applicant's operation of a tattoo parlor at 839 East 4th Street, Saint Paul, Minnesota, Apartment 2, comply with the provisions for a home occupation pursuant to § 65.141 of the Saint Paul City Code? ' Saint Paul Legislative Code §§ 310.05 (c-1), 310.06. �� 3 �3 FiND1NGS OF FACT 1. On August 20, 2005, Gregory A. Lehrtian ("ApplicanY') applied to the City of Saint Paul ("City') for a Class N license to operate a tattoo parlor, Tattoos From Grease. In his application, Applicant listed the same home and business address: 839 East 4th Street, Saint Paul, Minnesota, 55106, except that his home address afso included "# 2°. The business address provided on the application did not include an apartment number. 2. As part of his application, the Applicant completed a Home Occupation Affidavit, agreeing to the conditions that apply to a home occupation. 3. Jeffery J. Hawkins is a LIEP Inspector III for the City and is responsible for . reviewing_lice�.�ed. businesses in Saint Paul for compliance with the zoning code. Based on information provided to Mr. Hawkins by a city fire inspector and after personally inspecting the ApplicanYs property on November 15, 2005, Mr. Hawkins sent the Applicant a fetter dated November 16, 2005, describing the City's home occupation requirements, concluding that ApplicanYs tattoo business was not incidental and secondary to the residential use of the property, and that the space was not the Applicant's principal residence. It was returned to the City by the United States Postal Service 5 - 4. A second letter, dated November 29, 2005, was also sent to theApplicant. The second letter was virtually identical to the November 16, 2005 letter, except that it noted that the first letter had been returned. This second fetter also stated that AppiicanYs ap�,za1 period had expired, and LIEF was recommending inaf ihe applicaiion be denied. � 5. The property at 839 East Fourth Street is zoned as "RT1." In order to be licensed as a tattoo parfor in an RT1 zone, the business must qualify as a home occupation under the City zoning code. 6. The Applicant was sent a Notice of Intent to Deny License Application, dated December 20, 2005, to 649 Concord Street North, South Saint Paul, MN 55075- 1114. The Applicant appealed the denial, and this hearing was scheduled. z Ex. 3-1. 3 Ex. 2-1. ' The letter dated November 16, 2005, was addressed to "Tattoos From Grease, Gregory A. Lehman, 839 East 4th Street, Saint Paul, Mn 551o6" (Ex. 4-2.) This address corresponds to the business address provided by the Applicant on his Class N City License Application. (Ex. 3-1.) 5 Ex. 4-2; Ex. 5-1. 6 Ex. 4-1. ' Test. of Jeffrey J. Hawkins. $ Exs. 1-1, 5-1. 9 Exs. 6-1. � Ex. 8-1. 2 04,-3 �3 7. During his initial investigation of 839 East 4th Street, Apartment 2, on November 15, 2005, Mr. Hawkins estimated fhat the residentiai use of the apartment was abouf ten percenf of the total apartmenYs use. In what appeared to be the former living room, Mr. Hawkins saw a cot, a microwave oven, and a small beverage refrigerator. Mr. Hawkins also saw filling cabinefs, a desk, and a computer. In the kitchen area, the uniYs oven had been removed and a large refrigerator was in the middle of room. Mr. Hawkins observed that the bedroom and porch had several couches and were being used as a waiting area; the tattooing operation was occurring in the spaces typically considered the kitchen and dining rooms. Based on Mr. Hawkins review of a 1994 floor plan of the unit from an unrelated application, Mr. Hawkins concluded that a wall separating the bedroom and porch had been altered. Although Mr. Hawkins did not examine the unit's closets, he did not see any dressers or other ciothing storage.�� 8. As a part of his November investigation, Mr. Hawkins learned that the ApplicanYs auto registration and driver's license listed the ApplicanYs primary residence at 649 North Concord Street, South Saint Paul. Mr. Hawkins also found a January 2001, LIEP dog license record that showed the Applicant had stated that he was no longer a Saint Paul resident. 9. On several occasions, Mr. Hawkins observed the Applicant's vehicle parked near the building at 839 East 4th Street. But on other occasions when he would expect a resident to be at home, Mr. Hawkins did not observe the ApplicanYs vehicle. 10. Based on the information collected, Mr. Hawkins concluded that Mr. �e �man �vas �ot actually t at the �ourth Street addreas. 11. In June, 2005, the Applicant took the necessary steps to declare 839 East Fourth Street, Apartment 2, as his homestead. The Applicant's driver's license was renewed in December, 2005, with the address at 839 East 4th Street, Apt 2. The Applicant's water bill dated January 23, 2005, and energy bill for the period December 13, 2005 through January 16, 2006 were sent to and received by the Applicant at 839 East 4th Street, Apt 2. No utility bills were offered for the time period of Mr. Hawkins' inspection. 12, The Applicant operated Tattoos From Grease in Saint Paul from 1992 through 2005." Prior to moving to 839 East 4th Street, the Applicant resided at 649 �� Test. of J. Hawkins; Ex. 4-1. 72 Ex. 4-1; Test. of J. Hawkins. 13 Test. of J. Hawkins. 74 Exs. 15, 18. 15 Test. of Gregory Lehman; Exs. 14, 19. ' Exs. 17, 20, 21 22. "Test. of G. Lehman; Ex. 3-3. 3 �/ l3 North Concord Streef, South Saint Paul, Minnesota, 55075.� On July 30, 2005, the Applicant executed a one-year lease with Sheila Ramirez for that property.� 13. The Applicant moved to 839 East 4th Street in June, 2005, to operate his tattoo business as a home-based business. Due to a great deal of stress related to the relocation and his overall employment situation, the Applicant has not finished organizing and preparing his space. The Applicant removed the oven from the apartment because he does not cook? 14. The ApplicanYs drawing of his intended use of the apartment at 839 East 4th Street included two waiting areas each with a stool and a couch, a bath, a hallway, two counters of which one has a sink, and a"tat2° chair. A computer-generated drawing of the space is similar and shows a kitchen area as part of the tattoo area and the relative.siae of the living/sleeping quarters.22 - 15. Any Finding of Fact more properly termed as a Conclusion is hereby adopted as a Conclusion. CONCLUSIONS 1. The Administrative Law Judge and the Saint Paul City Council have jurisdiction to consider the ApplicanYs appeal of the City's denial of a Class N license Z3 2. The Applicant received timely and proper notice of the hearing and the City has complied with all relevant substantive and procedural requirements of statute and rule 24 3. The City has authoriiy to deny, suspend, or revoke a license and to impose penalties for the violation of applicable statutes and rules2 4. The City has the authority to deny a home occupation, Class N, license to an applicant whose residential use its property is incidental and secondary to the business use of the same property. 5. The City has proved by a preponderance of the evidence that the ApplicanYs use of his property at 839 East 4th Street, apartment two, is primarily as a tattoo parlor and not primarily as a residence, and fails to meet the requirements for a home occupation, Class N license. '$ Test. of G. Lehman. 19 Ex. 23. 20 Test. of Gregory Lehman. 27 Exs. 2-2, 2-3. ZZ Ex. 24. 23 Saint Pauf Legislative Code §§ 310.05, 310.06; Minn. Stat. § 14.55. 24 See Minn. Sfat. §§ 14.57 —14.61; Saint Paul Legislative Code § 310.05. Z5 Saint Paul Legislative Code § 310.06. z6 Saint Pau! Legisiative Code § 65.141. 0 � 06 Based on the foregoing Conclusions, the Administrative Law Judge makes the followi�g: RECOMMENDATION IT IS HEREBY RECOMMENDED: that the City of Saint Paul DENY the Applicant a home occupation, Class N license. Dated this��day of February, 2006 BEVEj? JONE ' DIN R Admy� trative Law dge Report: Taped-recorded (2 tapes) MEMORANDUM The Saint Paul Legislative Code provides that license applicants may pursue an occupation in their dwelling unit so long as the occupational use is incidental and secondary to its primary use as a residence. It aliows: Sec. 65.141. Home occupation. An occupation carried on in a dwelling unit by a resident thereof, provided that the use is limited in extent, incidental and secondary to the use of the dwelling unit for residential purposes and does not change the character thereof. Standards and condifions: (a) A home occupation may include small offices, service establishments or homecrafts which are typically considered accessory to a dwelling unit. Such home occupations shall involve only limited retailing, by appointment only, associated with fine arts, crafts or personal services as allowed in the B1 local business district. (e) No structural alterations or enlargements shall be made to the dwelling for the primary purpose of conducting the home occupation. (k) For the purposes of this section, "principal residence" shall mean the dwelling where a person has established a permanent home from which the person has no present intention of moving. A principai residence is not established ifi the person has only a temporary physical presence in the dwelling unit. The Appiicant does not dispute that he has been using apartment iwo at 839 East 4th Street, Sainf Pau4, Minnesota, 55106, as a place of business. He has demonstrated that the same address is his residence. He has registered it as his homestead, listed it on his home address on his drivers license and has rented out his .+'�, 0� (3 apartment in South Saint Paul. He also receives some mail, including utility bills, at the Fourth Street address. The ApplicanYs use of apartment two at 839 East 4th Street does include some elements of residential use such as a cot and smail refrigerator. However, the Applicant's own drawing of the floor plan for apartment two uses business terms, such as `5�vaiting area" and °counter," fo describe the majority of the apartment's use. A LIEP inspector's visual observation of fhe apartment further supports the conclusion fhat, although Mr. Lehman may in fact live in apartment two, only a small portion of the apartment is used for residential purposes. The majority of the space is devoted to the tattoo business. The evidence shows that the apartment's use as a residence is incidental and secondary, but the Citys code requires that the occupational use be incidental and secondary to the residentiaf use. The LIEP inspector's reliance on a 1994 layout of the apartment was given little weight because it was more than ten years old. Similarly, the presence or absence of Mr. Lehman's car when the investigator passed by was given little weight. Because the Applicant failed to show that his apartment at 439 East � Street was primarily a residence and only incidentally and secondarily used as a business, the Administrative Law Judge recommends that the Applicant's application for a home occupation, Class N license be denied. B.J.H. � ` Page 1 of 1 �d� �G�1 i +[ •� �� dG -�/.� 7erry Hendrickson - Tattoos from Grease _ �_._.._ :�.�:�� ���::�.�:�...,,� ,� „�._, - .� From; Rachel Gunderson To: Hendrickson, Jerry Date: 3/15/2006 1027 AM Subject: Tattoos from Grease Jerry: I reviewed the AU's findings. If the Council decides to grant the license as a home occupation, they should: 1. Adopt the factual findings of the AU 2. Adopt the conclusions of the AU except number 5 3. Conclude in place of number 5 that: 1. The City has failed to prove by a preponderance of the evidence that the Applicant's use of his property at 839 East 4th Street, apartment two, is primarily as a tattoo parlor. 2. Applicant resides at 839 East 4th Street, apartment two as is shown in fZamsey County tax records, Minnesota Driver's License records, utility bills, and the one- year lease of his former residence to another individual. 3. 839 East 4th street, apartment two, is the dwelling where Mr. Lehman has estabfished a permanent home from which he has no present intention of moving. Mr. Lehman's presence at 839 East 4th street, apartment two, is more than a temporary physical presence. 4. Despite some structural changes to 839 East 4th street, apartment two, it's essential character is of a dwelling unit with a living room, dining room, kitchen, bathroom, and bedroom. The commercial use of 839 East 4th Street is limited sufficiently so as retain the residential character of the unit and therefore the primary use of 839 East 4th street, apartment two, is residential, not commercial. file://C:�Documents and Settings�Hendrick�I,ocal Settings\Temp\GW}00OO1.HTM 3/15/2006