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08-579-t Council File # dg � '�J� r 'J Green Sheet # �pSy 3►n RESOLUTION CITY OF SAINT PAUL, MINNESOTA Presented l0 2 WHEREAS, Health Skills, LLC d/b/a Anytime Fitness (License ID# 20060001202) located at 3 2501 W. 7`�' Street in Saint Paul received a Notice of Violation dated December 6, 2007; and 4 WHEREAS, the Notice alleged on November 16, 2007, Anytime Fitness was open to members and no staff inember was on the premises; and WIIEREAS, the Notice also alleged that the above facts are a violation of St. Paul Legislative Code § 427.07(12) and license condition # l; and 10 11 WHEREAS, applicant denied the allegations and requested a hearing before an Administrative Law 12 Judge; and 13 14 WHEREAS, a hearing was held before an Administrative Law Judge on March 12, 2008, at which 15 each party was represented by Counsel, presented testimony and offered exhibits; and 16 17 WHEREAS, a Report was issued on April 17, 2008, in which the Administrative Law Judge issued 18 Findings of Fact, Conclusions of Law, a Recommendation and a Memoranduxn; and 19 20 WHEREAS, the ALJ found that there was sufficient proof that licensee had committed the alleged 21 violation; and 22 23 WHEREAS, the Administrative Law Judge also found that a$500.00 fine is an appropriate 24 sanction under the circumstances; and 25 26 WHEREAS, Anytime Fitness was given notice that a public hearing would be held before the City 27 Council on May 21, 2008 at which time licensee would have an opportunity to present oral or written 28 argument to the Council; 29 30 WHEREAS, at a public hearing on May 21, 2008, the Council of the City of Saint Paul considered 31 all the evidence contained in the record, the Administrative Law Judge's Findings of Fact, Conclusions of 32 33 34 35 36 37 38 39 40 41 42 Law, and Recommendations; now, therefore, be it RESOLVED, that the Council of the City of Saint Paul issues this decision based upon consideration of the record of the entire proceedings herein, including the hearings before the ALJ, all the documents and exhibits introduced therein, the Findings of Fact, Conclusions of Law and Recommendation as referenced above and amended below, and the deliberations of the council in open session of that hearing; and be it RESOLVED, that a fine of $500.00 is imposed against all licenses held by Health Skills, LLC d/b/a Anytime Fitness; and be it . �K - �7� 43 FURTHER RESOLVED that the $500.00 fine be paid within 30 days of the passage and approval 44 of this resolution; and be it 45 46 FINALLY RESOLVED, that the Findings of Fact, Conclusions of Law, and Recommendation of 47 the Admiiuslrative Law Judge in this matter aze hereby adopted as the Findings and Conclusions of the 48 City Council in this matter. 49 50 A copy of this resolution, as adopted, shall be sent by first class mail to the Administrarive Law Judge and 51 to the license holder. Requested by Department oE � + � � BY � � ��J Approved by the Office of Financial Services Adoption Certified by Council Secretary BY� / A /01Jis �s�/�r,C SOn �/ Approv " Ma r: Date � jU bb By: By: Approved by City Attomey Br �A,�, ( iu. .a Approve y r for S 'ssio . to Council By: Adopted by Council: Date �a�dh/��lJj]� � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � �� Departmentloficelcouncil: Date Initiated: S , ��,tofs��&��a� f�-�Y-�B Green Sheet NO: 3054310 Gontact Person & Phone: Rachel Tiemey 266-8710 04-JUN-08 ��+ .� �� Doc.Type: RESOLUTION E-DocumentRequired: Y DocumentContact JulieKraus Conqct Phone: 266-8776 � ueoamnem aena �� re�wu O ¢pt OfSefety & Inspections Assign 1 t of Safe & Ins e�tioas De ent Director Number Z . Attorne For Routing 3 � a or's Office Ma or/Assistant Ortler 4 oancil 5 ' C1eik � Clerk ToWI # of Signature Pages, (Clip All Lowtions for Signature) � .� �;� Memorializing City Council action taken May 21, 2008 imposing adverse acfion against all licenses held by Health Skills, LLC d/b/a Anytime Fitness (License ID#20060001202) for the premises located at 2501 W. 7th Street in Saint Paul. iaauons: Approve (n) or tt Planning Commission CIB Committee Civil Service Commission 1. Has this perso�rm ever worked under a contract for this department? Yes No 2. Has this person/firm ever been a city employee? Yes No 3. Does this person/firtn possess a skill not normally possessed by any current city emploYee? Yes No E�cplain all yes answers on separete sheet and attach to green sheet Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why): A public hearing was held on Maq 21, 2008 to discuss the Administrarive Law Judge's Findings of Fact, Conclusions of Law and Recommendation from an administrative hearing held on Mazch 12, 2008. Advantages If Approved: Memorialization of Council action taken as a result of the public hearing. Disadvantages If Approved: None. Disadvantages If Not Approved: Transaction: Funding Source: Financiai Information: (E�cplain) CostlRevenue Budgeted: Activity Number: May 22, 2008 11:31 AM Page 1 OFFICE OF Tf� CITY ATTORNEY ,Iohn .L Choi, Ciry Anorney - �l I J J / / CIT`Y OF SAINT PAUL CiviZDivision Clffistopher B. Calemme, Mayor 400 Ciry Ha[I Telephone: 651 266-8710 ISWestKelloggBZvd Facsimile:657298-5679 Saint PauF Minnesota SSIO2 �rrr Apri124, 2008 NOTICE OF COUNCIL HEARING Kathiyn K. Smith Shemll Law Office, PLLC 4756 Banning Avenue, Ste. 212 White Beaz Lake, MN 55110-3205 RE: All licenses held by Health Skills LLC St. Paul, d/b/a Anytime Fitness for the premises located at 2501- 7`� Street West in Saint Paul OAH Docket No. 15-6020-19405-3 All licenses held by Wittwer Fitness, Inc., d/b/a Anytime Fitness for the premises located at 1678 Suburban Avenue in Saint Paul OAH Docket No. 15-6020-19438-3 Deaz Ms. Smith: Please take notice that a heariug to discuss the report of the Adminishative Iaw Judge concerning the above- mentioned licenses has been scheduled for Wednesday, May 21, 2008, at 5:30 p.m. in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opportunity to file exceptions to the report with the City Clerk at any time during normal business hours. You may also present oral or written 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 uguments made and exceptions filed, but may depart from the recommendaflons of such Judge as permitted by law in the exercise of its judgment and discretion. Sincerely, ��' � Rachel Tiemey Assistant City Attorney cc: Diane Nordstrom, Office of Adminish�ative Hearings, P.O. Box 64620, St. Paul, MN 55164-0620 �/1�vlary Erickson, Council Secretary Cluistine Rozek, Deputy Director of DSI Jason Wittwer, 202 Hazel Street North, St. Paul, MN 55119 Ryan Manning 546-127th Avenue, Coon Rapids, MN 55448 Betsy Leach, Community Organizer, District 1 Community Council 2090 Conway Street, Room 126, St. Paul, MN 55119-4040 Bill Poulos, President, Highland District Council, 1978 Ford Parkway, St. Paul, MN 55116-1922 AA-ADA-EEO Employer OFFICE OF TI� CITY ATTORNEY JoYm J. Choi, City Attarney �� C I1 1 OF SLillVT pAUL CivilDirision Christopher B. Coleman, Mayor 400 City Hall I S West Kellogg Blvd SaintPauZ, Mimzesota 55702 i JflIlllary 3�� 2��8 NOTICE OF ADNIINISTRATIVE FIEARING Katluyn K. Smith Sherrill Law Office, PLLC 4756 Sanning Avenue, Ste. 212 White Beaz Lake, MN 55110-3205 Telephone: 651 266-8710 Facsimile: 65I 298-5619 RE: All licenses held by Health Skills LLC St. Paul, cUb/a Anytime Fitness far the premises located at 2501- 7�' Street West in Saint Paul LicenseID #:20060001202 Deaz Ms. Smith: Please take notice that an Administrafive Heazing will be held at the following date, time and location concerning all the licenses held at the premises identified above: Date: Friday, February 29, 2008 Time: 9:30 a.m. Location: Room 41 (Basement) City HaWCourthouse 15 West Kellogg Boulevard St. Paul, MN 55102 The hearing will be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrarive Hearings: Name: Beverly Jones Heydinger Office of Administrative Hearings 600 North Robert Street St. Paul, NIPi 55101 Telephone: (651)361-7838 The Council of the City of Saint Paul has the authority to provide for hearings concerning iicensed premises and for adverse action against such licenses, under Chapter 310, including sections 310.05 and 310.06, of the Saint Paul Legislative Code. Adverse action may include revocation, suspension, denial, fines and other penalties or conditions. na-ADA-SEO Employer Anytime Fitness - 7�' Street VJest January 30, 2008 Page 2 UO�v1�� Evidence will be presented to the judge which may lead to adverse action against the licenses held at the above premises as follows: On November 16, 2007, two 5t Paul Police 5ergeants were asked to do a premise check of yonr establishment by the Deparhnent of Safety and Inspecrions (CN #07- 230-500). The sergeants arrived at 10:00 p.m. and observed a male on an egercise machine just inside the front door. The front door was locked, so the sergeant knocked on the door and showed the patron his identificaflon and was allowed to entered the building. The sergeant asked the patron if he worked for Anytime Fitness and he said "no", he was just there to work out The sergeant then asked if the patron has seen any staff present since he was there and he said ��uo". The sergeant went to the office and Found it locked but there was a business card with the manager's name sitting on the desk next to the office. This is a violation of Condition #1 of your license that states: "At Zeast one empLoyee or manager, trained and qualified in first aid and CPR according to the standards established by rule of the Off ce of License Znspections and Environmental Protection, shall be on duty at a11 tiines that the licensed premises are in operation or open to members of the publie " This is also a violation of Saint Paul Legislative Code §427.07 (12) which states: "At least one (I) employee or manager, traixed and qualified in first aid and CPR according to standards established by rule by the department ofsafety and inspections shall be on duty at all times that the licensed premises are in operation or open to members or the public Such standards shall be in conformity with s2andards and guidelines established by theAmerican Red Cross with respect to water safety instructors or by the American Heart Association for similar purposes. " Therefore, as per Saint Paul Legislative Code §310.05 (m)(1), the licensing office will recommend a matrix penalty of $500.00. The licensee has the right to be represented by an attorney before and during the hearing or can represent him/hersel£ The licensee may also have a person of his/her choice representing his/her interests, to the extent not prohibited as unauthorized practice of law. The heazing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrative Law Judge will have all parties identify themselves for the record. The Cily will then present its witnesses and evidence, each of whom the licensee or attomey may cross- examine. The licensee may then offer in rebuttai any wimesses or evidence it may wish to present, each of whom the City's attorney may cross-examine. The Administrative Law Judge may in addition heaz relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; far example, the owners or occupants of property located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding azguments may be made by the parties. Following the hearing, the Judge will prepare Findings of Fact, Conclusions of Law, and a specific recommendation for action to be taken by the City Council. AA-ADA-E&0 Bmployei Auytime FiY��ess - 7 Sfreet �Vest January 30, 2008 Page 3 �� J�� The licensee should bring to the hearing all documents, records and witnesses which will or may be needed to support its position. Subpoenas may be available to compel the attendance of witnesses or the production of documents in conformiry with Minnesota Rules, part 1400.7000. If you think that this matter can be resolved or settled without a formal hearing, please contact the undersigned. If a stipulation or agreement can be reached as to the facts, that stipulation will be presented to the Administrative Law 7udge for incorporarion into his or her recommendation for Council action. If you fail to appeaz at the hearing, your ability to challenge the allegations will be forfeited and the allegations against you which have been stated earlier in this notice may be taken as hve. If non-public data is received into evidence at the hearing it may become public unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. Please note: Saint Paul Legislative Code §310.05 (k) states: "The council may impose upon any Zicensee or license applicant some or all of the costs of a contested hearing before an independerct hearing exarniner. The costs of a contested hearing incZude, but are not limited to, the cost of the administrative Caw judge or independent hearing examiner, stenographic and recording costs, copying costs, city staff and attorney time for which adequate records have been kept, rental of rooms and equipment necessary for the hearing, and the cost of expert wimesses. The council may impose a11 or part of such costs in any given case if (� the position, claim or defense of the licensee or applicant was frivoZous, arbih-ary or capricious ....... (v) the appZicant or licensee was sufficiently in control of the situation and therefore could have reasonably avoided the violation, such as but not Zimited to, the nonpayment of a required fee or the failzrr-e to renew required insurcmce policies; (vi) the violation is covered by the matrix in section 409.26 of the LegisZative Code, or (vii) the violation involved the sale of cigarettes to a minor." If you have any quesfions, you can call me at 266-8710. V ery truly yours, I �-t�Wl^+X, ��VL� J Rachel Tierney Assistant City Attorney cc: Diane Nordstrom, Office of Administrative Heazings, P.O. Sox 6462�, St. Paul, MN 55164-Q620 �ary Erickson, Council Secretary Christine Rozek, Deputy Director of DSI Ryan Manning, 546-127th Avenue, Coon Rapids, MN 55448 Bill Poulos, President, Highland District Council, 1978 Ford Pazkway, St. Paul, MN 55116-1922 AA-aDx-Pao amployez b8 � �� MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 600 North Robeft Street Saint Paul, Minnesota 55101 Mailing AddLess: Voice: (651) 361-79� P.O. Box 64620 'ITY: (651) 361-7878 St.Paul,Minnesota55164-0620 April 17, 2008 Fvc: (651)361-7936 >� � - ��_ .: �.. Shari Moore City Clerk 310 City Hall 15 West Kellogg Bivd. St. Paui, MN 55102 APR I8 ZOQB 43��u ��,��,,,j �='., � , �� Re: in the Matter of the Licenses held by Health Skills, LLC St. Paul, d/b/a Anyfime Fitness, for the premises located at 2501 West Seventh Street; OAH Docket No. 15-6020-19405-3 Dear Ms. Moore: 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 enclosed is the official record, with the exception of a copy of the digital recording of the hearing. if you wouid like a copy of the digitai recording, please contact our o�ce in writing or call 651-361-7906. Our file in this matter is now being closed. BJH nh Encl. Sincerely, �� BE�V�ER JONES HEYDINGER Administrative Law Judge Telephone:(651)361-7838 Cc Rachel Tierney Kathryn K. Smith 0�-��9 15-6020-19405-3 STATE OF MINNESOTA OFFICE OF ADMINISTATIVE HEARINGS FOR THE SAINT PAUL CITY COUNCIL In re the Licenses held by Health Skills, FINDINGS OF FAGT, LLC St. Paul, d/b/a Anytime Fitness, for CONCLUSIONS OF LAW the premises located at 2501 West AND RECOMMENDATION Seventh Street This matter was heard by Administrative Law Judge Beverly Jones Heydinger, on March 12, 2008, in Room 40A, Saint Paul City Hall — Ramsey County Courthouse, 15 West Kellogg Boulevard, Saint Paul, Minnesota. The hearing was held pursuant to a Notice of Administrative Hearing dated January 30, 2008. Rachel Tierney, Assistant City Attorney, 400 City Hall, 15 West Keliogg Boulevard, Saint Paul, Minnesota, 55102, appeared on behalf of the City's Department of Safety & inspections (DSI).' Kathryn K. Smith, Sherrili Law Office PLLC, 4756 Banning Avenue, Suite 212, White Bear Lake, MN 55110-3205, appeared on behalf of Health Skills, LLC St. Paul, d(b/a Anytime Fitness (Heatth Skills). The record closed on April 1, 2008, following receipt of the parties' post-hearing memoranda. NOTICE This report is a recommendation, not a final decision. The Saint Paul City Councii wili make a final decision after a review of the record and may adopt, reject, or modify these Findings of Fact, Conciusions, 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 contact Shari Moore, City Clerk, City of Saint Paul, 310 City Hall, 15 West Kellogg Boulevard, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting arguments. ' Formerly Office of License, Inspections and Environmental Protection (LIEP). Z Saint Paul Legislative Code §§ 310.05 (c-1). UO� ✓ 1 � STATEMENT OF THE ISSUE 1. Did Heaith Skiils violate Saint Paui Legislative Code § 427.07 (12) and the corresponding condition on its license by operating a health and sport club without having an employee or manager who was trained in first aid and CPR on the premises during its hours of operation? 2. If so, is the City's proposed penalty of $500 reasonable? The Administrative Law Judge recommends that the Saint Paul City Council a�rm the determination that Health Skills violated Legislative Code § 427.07 (12), and the condition on its license by operating a health and sport club without an employee on the premises who was trained in first aid and CPR, and a�rm the proposed penalty of $500. Based on the record and proceeding herein, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. Ryan Manning is the President of Health Skills, which holds license number 060001202 from the City of Saint Paul to operate a health and sport club and a tanning facility at 2501 West Seventh Street, in Saint Paul. 2. When Mr. Manning obtained space and began remodeling to open Health Skiils, he was unaware that the operation would require a license from the City. Around April 2006, upon leaming that licenses were required, he met with Christine Rozek, Deputy Director of DSI, and the fivo worked cooperatively to assure that Health Skiils met the necessary building code requirements. Mr. Manning was informed of the applicable code requirements and notice was sent to surrounding property owners. The City allowed Health Skills to operate while Mr. Manning worked to comply with the code requirements 4 3. On January 18, 2007, Ms. Rozek sent Mr. Manning a letter about the buiiding code and staffing requirements for Health Skilis. 4. On February 11, 2007, Ms. Rozek sent Mr. Manning a letter reiterating that Mr. Manning should continue to work with the building inspectors to make the necessary changes to the property, and that, so long as he did so, his license application would not be denied. The letter also reiterated "that your business may not be in compliance with Sections 427.07 (12) of the legislative code which requires that 3 Ex. H1-2. ' Testimony of Christine Rozek; Testimony of Ryan Manning; Ex. H1. 5 Ex. H1-1. 3 a�� staff be present during all hours of operation" and quoted the provision of the code. Ms. Rozek requested that Mr. Manning confirm in writing that he was in compiiance with the staffing requirements and contact her by February 20, 2007, if he had any questions about the requirements. Mr. Manning does not recall seeing the sentence in Ms. Rozek's letter stating that staff must be present at the health club. 5. On February 20, 2007, Mr. Manning signed a statement agreeing to two conditions on his license. The first reiterated the standard of the Citys legislative code that "one employee or manager, trained and quai'fied in first aid and CPR ...shall be on duty at all times that the licensed premises are in operation or open to members of the public." It also contained a condition related to tanning faci�ities that stated: "Customer use of the tanning facilities shail be restricted to those hours when at least one individual empioyed by the licensee is available on-site" to assist customers and monitor the equipment.� 6. On November 16, 2007, Dave Schoen, a police officer assigned to assist DSI, was asked to check Health Skiils to determine if it was staffed at ali hours of operation. At approximately 10:00 p.m., he went to the faciiity and saw a person using an exercise machine. The front door was locked; the officer showed his identification, and the customer admitted the o�cer to the facility. No employee was present, and the customer told Officer Schoen that he had not seen an employee. There was a business card on the desk next to a locked office with the name of the manager, Mason Reinhart. 7. Health Skills does not have a staff member on the premises during all hours of operation. A staff member may be contacted by telephone at any time. Two signs are posted at the business: One is approximately 4 inches by 6 inches, and another is the size of a business card. The larger one lists Kim Johnson as the "24-hour staff attendanY' and contains her celi phone number. It is posted by the office door and the outside door of the club. The business card also lists Ms. Johnson, Mr. Manning and another staff inember and their telephone numbers. 8. Kim Johnson is a regional manager for Anytime Fitness, and she oversees Anytime Fitness facilities in several cities, including St. Paul, Mapiewood, Woodbury and White Bear Lake, and shares responsibility for a facility in Fergus Falls, Minnesota.' Ms. Johnson is trained in first aid and CPR, and she is available by cefl phone 24 hours a day. When she is not available, her celi phone is forwarded to Ryan Manning, who is also trained in first aid and CPR. Ms. Johnson lives in Maple Grove, Mirtnesota. 6 Ex. H2. � Ex. H3. 8 Ex. H4 and Stipulation, dated March 12, 2008. 9 F�cs. H8 and H9. t0 Test. of K. Johnson. 3 b8��'� � 9. Although Health Skills does not have an employee on the premises during all hours of operation, it does have necklaces that customers are encouraged to wear when using the exercise equipment, and panic buttons are located throughout the facility. The customer can push the button on a necklace or on the wall if he or she needs assistance. The buttons are connected to "Pro Vision," a security company that will contact 911 for police assistance and also notify Health Skiils. Neither the necklaces nor the buttons on the wall are directly connected to the 911 system." 10. Health Skills aiso has security cameras. In the event that a person attempts to enter the facility without using a required security pass, the entry will be recorded on a computer system that is linked to the cameras. Staff members can check the computer from off-site to determine if a person has entered without the required pass and can check the recorded images from the security cameras to determine who entered and how the entry occurred. The cameras are not continuously monitored when persons are using the facility, but the computer program is checked regularly for unauthorized entry. The cameras are not linked to Pro Vision, and the security company cannot monitor the cameras. There is a coded key pad outside the building enfrance to allow police and fire to gain access to the building. 11. If Ms. Johnson were called by a person having a medical emergency at the facility, she would tell the caller to push the panic button on one of the necklaces or on the wall, and Pro Vision wouid then call 911. She has never received a cali about an injury or iilness at one of the facilities. 12. During the process of complying with the building code, Mr. Manning gave the buiiding inspector a tour of Health Skills and showed him the security system, including the key cards for admission, the cameras and the emergency buttons. Mr. Manning explained to the inspector that the facility was open to members 24 hours a day, and he explained the reciprocity with other Anytime Fitness clubs. Mr. Manning was certain that the inspector understood that staff wouid not be present during all hours of operation because of the key card access. Mr. Manning was aware that his Anytime Fitness franchise was the first 24-hour health club to open in Saint Paul." 13. Mr. Manning acknowledged that he had received copies of the applicable ordinances and he maintained that he had fully complied with them. hfe did not caA DSI for clarification because he did not think that the license conditions were vague. Upon learning of the first aid and CPR requirements, he arranged training for Ms. Johnson and two other employees and faxed their training certificates to the City. He understood that an empioyee must be on the premises when the tanning facilities were available, " Test. of K. Johnson; Test. of R. Manning. 12 Test. of R. Manning. t3 Test. of K. Johnson. ' Test. of R. Manning. 0 ��Gj'�� but he understood that an employee must only be "on duty," which he interpreted to mean available by telephone, when the health center was open to members.' 14. The Anytime Fftness business model provides low-cost access to health facilities 24 hours a day. Mr. Manning is concerned that he can not operate the model successfully if the facifity must be staffed at ail times. Moreover, he believes that the staffing requirement is out-dated because of the new security features and because the benefits of aliowing low-cost access to health clubs at any time af day outweigh the small health risks of operating without a staff member present.� 15. The Anytime Fitness franchisor is working with regulators in many states to educate them about the benefits of its business model, including greater access and affordability. Anytime Fitness stresses the security at its facilities, and the required training for staff and members, including training about the benefit of wearing a necklace with a panic button while exercising. There are 101 Anytime Fitness franchises i� Minnesota, and all but three are open 24 hours a day. In no instance has a cfient suffered medical probiems because of a delay in receiving medical treatment.�� 16. The City first regulated health clubs in 1989. Since the City added the requirement for first aid and CPR training to the legisiative code provision in approximately 1992, the City has consistently interpreted the term "on duty" in the code provision to mean that an employee or manager with the required training must be on the premises during ai� hours of operation. The ordinance was amended when CPR training became the standard of care for heaith and fitness facilities. The purpose of the safety requirement is to assure that a trained person is on hand to render emergency assistance in the event that a customer is injured or suffers a heart attack while using the facility. Although there is a contact number posted at Health Skilis, and customers may push a button in an emergency, neither is sufficient to provide immediate medical assistance. 17. William Gunther, the City's Environmental Health Director, explained the importance of immediate administration of CPR to keep oxygen circulating to the brain, and the damage from loss of oxygen, including some brain damage in four minutes, permanent brain damage in seven minutes, and the poor chance of survival after twelve minutes without oxygen. If a patron were to call the number of the staff attendant rather than 911, the cali would delay the emergency response. A person off-site woufd be unable to render the required assistance, and there would be no reason to require that person to have first aid or CPR training. t5 Test. of R. Manning. 16 Test. of R. Manning. " Test. of Mark Daly, National Media Director, Anytime Fitness. 78 Test. of C. Rozek; Test. of W. Gunther. 79 Test. of W. Gunther. � 6�' �� 18. in addition, tF�e City is concemed that unauthorized persons may enter the fitness club, which couid pose a safety risk to its customers. An on-site employee would be available to immediately check the identity of such a person and take the appropriate steps to remove the individual? 19. Exercise rooms in hoteis and condominiums do not require a health/sport club license because hotels and condominiums are not in the business of operating a health or sport club?' 20. The City Council has authority to impose a fine upon any licensee as an adverse action, in an amount fhat is reasonabie and appropriate. To that end, it has estabiished presumptive penalties for vio{ations. The City Council may deviate from the presumptive fine if there are substantial and compelling reasons to do so ZZ 21. On December 6, 2007, the DSI sent a Notice of Violation to Health Skills stating that Heaith Skills had violated St. Paul Legislative Code § 427.07 (12} and Condition One of its license. The notice stated that DSI wouid recommend a$500 fine to the City Council for the violation. z3 22. Health Skiils requested a hearing to challenge the violation 2 The City issued a Notice of Administrative Hearing on January 30, 2008, initially scheduling the hearing for February 29, 2008. At the request of Hea�th Skills, and with the agreement of DSI, the hearing was rescheduled for March '12, 2008. 23. There is no substantial or compeliing reason to deviate from the presumptive penalty of $500.00 24. Any Finding of Fact more properly termed as a Conciusion is hereby adopted as a Conciusion. CONCLUSIONS 1. The Administrative Law Judge and the Saint Paul City Council have jurisdiction in this case. 2. The Applicant received timely and proper notice of the hearing, and the City has compiied with all relevant substantive and procedural requirements of statute and rule. 20 Test. of C. Rozek. Z ' Test. of W. Gunther; See Saint Paul Legislative Code § 427.01. '� Saint Paul Legistative Code § 310.05 (i) and (m). 23 Ex. H5-2. 24 Ex. H6. ' Ex. H7. 26 Saint Paul Legisiative Code §§ 310.05, 310.06; Minn. Stat. § 14.55. 0 b� ��7 3. The City Council has authority to deny, suspend, or revoke a license and to impose penaities for the violation of ap�licable statutes and rules. The presumptive penalty for a first violation is a$500 fine? 4. DSI has the burden of proving that the Licensee violated the appiicable provisions of state iaw and city ordinance by a preponderance of the evidence. 5. Saint Paul Legislative Code § 427.07 (12) states: At least one (1) employee or manager, trained and qualified in first aid and CPR according to standards established by rule by the department of safety and inspections shall be on duty at all times that the licensed premises are in operation or open to members or the public. Such standards shall be in conformity with standards and guidelines established by the American Red Cross with resoect to water safety instructors or by the American Heart Association for similar purposes. 6. DSI has reasonably interpreted the term "on duty" to mean that the empioyee or manager must be on the premises in order to give effect to the requirement that such an employee or manager must be trained in first aid and CPR. In light of the tanguage of the provision as a whole, this is a reasonabie interpretation that gives meaning to each part of the provision and is consistent with the obvious intent of the requirement. 7. DSI has proved by a preponderance of the evidence that Health Skills failed to have an employee or manager trained and qualified in first aid and CPR on duty whiie the ficensed establishment was in operation and open to the public, in violation of Saint Paul Legislative Code § 427.07(12) and its license condition. 8. DSI's proposed fine of $500 is reasonable and consistent with the City's penaliy matrix. 9. The City Council may impose the costs of a contested case hearing on a party if its position was "frivolous, arbitrary or capricious, made in bad faith, or made for the purpose of delay or harassment," and for other reasons that would not be appficable to the alleged violations in this case. There is insu�cient evidence to support an award of costs in this matter. Health Skilis' appeai of the violation of its license was faken in good faitfi and was not frivoious, arbitrary or capricious, or made for the purpose of delay or harassment. 28 Saint Paul Legislative Code §§ 310.05(1), 310.06. � Saint Paui Legislative Code § 310.05(m). 3o Saint Paul Legislative Code § 310.05(k). 7 c�3�� Based on the foregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RECOMMENDED: that the City of Saint Paul impose the presumptive fine of $500 against Health Skilis. Dated: April 17 , 2008 � �� BEVE NES HE IN R Admi t ative Law J ge Digitally Recorded: A-bjh-03122008 MEMORANDUM The Saint Paul Legislative Code and the condition placed on Health Skills' license both required that an employee trained in first aid and CPR shall be "on duty" at ail times that the facitity was in operation or open to its members. DSI has interpreted "on duty" in this conte�ct to mean that the employee must be on the premises. Heaith Skills does not deny that it operates its facility when no employee is on the premises who is trained in first aid and CPR. Health Skiifs claims that it complies with the requirement by posting the name and telephone number of a trained employee who is on duty and may be contacted at ail times. DSI's interpretation is consistent with the piain meaning of the ordinance. In order to give meaning to the full text, a person must be on the premises to perform first aid or CPR as needed. Persons who are ill or injured may not be abfe to assist themselves, and the time that it would take to summon a stafF member who is away from the health club or to push a button that triggers a request for a police officer defeats the purpose of having a trained person availabie. A call to 911 will bring help with equal speed, regardless of whether a staff person trained in first aid or CPR were called first. If Health Skilis' argument were logical, the ordinance would require posted notice to call 911 or push one of the panic buttons in an emergency. Moreover, as the Heafth Skills' regional manager, Ms. Johnson, testified, the security company calis the police rather than placing a call for emergency medical assistance. Although a police o�cer may be trained in first aid and CPR, this adds a step to obtaining the necessary medical care. Ms, Johnson aiso stated that if she were ever called by a person facing a medical emergency, she wouid direct the person to push one of the panic buftons at the facility. Thus, the meaning Health Skills gives to the ordinance is unreasonable and fails to accomplish the purpose for which it was enacted. It also fails to give effect to the '' Saint Paul Legislative Code § 427.07 (12); Ex. H3. L'�' �� language of the ordinance as a whole by rendering the first aid and CPR training requirement meaningless. Health Skilis' claim that CPR training inciudes instructing another person to perForm CPR is not persuasive since there may not be a person on hand to take direcfion, and no way for the person giving direction to observe whether the directions were followed. Ordinances should be interpreted to give full effect to ali the provisions, and not to interpret them in a manner that would lead to an unreasonable result or defeat the purpose for which they were enacted. Moreover, DSI's interpretation of the ordinance is entitled to some deference because it is reasonable, consistent with the plain language of the ordinance, and is an interpretation of long-standing. DSI's witness, Mr. Gunther, testified that since the first aid and CPR requirements were added to the ordinance, DSI has consistently required that an employee be on the premises. Health Skills also challenges the appiicable ordinance because exercise rooms in hotels and condominiums are not subject to the same license requirements. William Gunther explained that hotels and condominiums are not in the fitness business and offer exercise as an amenity to their customers or owners. A health club license is required only for persons in the business of operating a health/sport c(ub. (n addition, members of a condominium association are using equipment that they own, and the City does not regulate private, personal use of exercise equipment. Governments may regulate part of an activity or address part of a problem without regulating the en4ire field. It is not required to "strike at ail the evils at once." Heaith Skiils compares the use of the term "on duty" in the ordinance regulating health clubs with the more specific "on duty on the premises" language in the ordinance governing "game rooms." Although the provision applicable to game rooms is more specific, it is also included in a provision that would not otherwise imply such specificity, u�like the requirement for health clubs that the employee on duty be certified for first aid and CPR. The City is not required to employ identical language throughout its ordinances, nor are the health club and game room provisions so tikely to be read together that the different choice of words would cause confusion. Health Skills also argues that the ordinance is out of step with updates in technology and fails to take into account that the benefits of being available at a low cost and at hours that serve many schedules outweigh the risks of using the exercise facility without a staff member present. These arguments are more appropriately 32 See e.g. Minn. Stat. § 645.17 (1 a�d 2) (principles of statutory construction). � Arvig TeLCo. v. Northwestem Bel! Te% Co., 270 N.W2d 111,914 (Minn. 1978); In the Matter of the Cities ofAnnandale and Maple Lake, 731 N.W.2d 502, 512-513 (Minn. 2007). 34 Compare Saint Paul Legislative Code § 427.01 (definition of health/sport ciub) with § 407.01 (definition of hotel). 3s Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466, 101 S.Ct. 715, 725 (1981j; Essling v. Markham, 335 N.W 2d 237, 240 (Minn. 1983). �%7 Dg ��'t �i brought to fhe City Council for its consideration. Occasionally, in applying a law or rule, factual situafions that were not considered during the legisiative process come to light that may yield a harsh or undesirable resuft in a particular case. However, this does not make the law invalid so long as the law as appiied is rationally related to the resuit that the enactment was intended to achieve. it would be invalid only if its appiication lacked a rationai relationship to the objecfive it was enacted to address. In this case, it is ciear that the continued application of the ordinance would in fact benefit the health club's patrons. Heaith Skills claims otherwise, because it contends that it cannot charge its low rates if it must have staff on the premises during ail hours of operation. Although it may be more costly for Health Skills to comply with the ordinance, the reasonableness must be viewed from the end sought to be achieved and not in light of the ordinance's appiication to a particular party. Appropriateness of the Penalty DSI proposed a fine of $500, the presumptive penalty for a first violation 3 Health Skills was on notice of the requirement and DSI's interpretation of it. It is doubtful that a warning would have the desired deterrent effect. Based on the facts presented, the presumptive penalty is reasonable. DSI's request for costs DSI may request costs if the Licensee's appeal was frivolous, arbitrary or capricious. No such award of costs is justified in this instance. Health Skills sincerely believes that the ordinance should not be applied to it, and those arguments, although unpersuasive, were not specious or advanced solely to delay or harass enforcement. B.J.H. 3s Mammenga v. DepY of Human Services, 442 N.W.2d 786, 789 (Minn. 1989), citing Wickard v. Filbion, 317 U.S. 111, 129-130, 63 S. Ct. 82, 91 (1942); In the Mafter of the Lawful Gambling License of Thief River Falls Amateur HockeyAss'n, 515 N.W.2d 604, 606-607 (Minn. App. 1994). 37 Broen Memorial Home v. DepY of Numan Services, 364 N.W 2d 436, 441 (Mirtn. App. 1985). 38 Saint Paul Legislative Code § 310.05(m}. iG]