08-580Council File # C� �S�D
Green Sheet # 30,S�N3 11
RESOLUTION
CITY O
Presented by
PAUL, MINNESOTA
��
WHBREAS, Wittwer Fitness, Inc. d/b/a Anytime Fitness (License ID# 20060003890} located at
1678 Suburban Avenue in Saint Paul received a Notice of Violation dated December 6, 2007; and
WI the Notice alleged on November 8, 2007, Anytnne Fitness was open to members and
no staff inember was on the premises; and
WI3EREAS, the Notice also alleged that the above facts are a violation of St. Paul Legislative Code
§ 427.07(12) and license condition # 1; and
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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 Memorandum; and
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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
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26 WHEREAS, Anytime Fimess 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
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argument to the Council;
WHEREAS, at a public hearing on May 21, 2008, the Council of the City of Saint Paul considered
all the evidence contained in the record, the Administrative Law Judge's Findings of Fact, Conclusions of
Law, and Recommendations; now, therefore, be it
RESOLVED, tYaat the Council of the City of Saint Pau1 issues this decision based upon
consideration of the record of the entire proceedings herein, including the hearing 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
RESOLUED, that a fine of $500.00 is imposed against all licenses held by Witriver Fitness, Inc.
d/bla Anytime Fitness; and be it
b� 'S�U
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 Admiuistrative Law Judge in this matter are hereby adopted as the Findings and Conclusions of the
48 City Council in this matter.
49
50 A copy ofthis resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and
51 to the license holder.
Requested by Department o£
�
Bv: �...,�,;,� Y� 1
Approved by the Office of Financial Services
�
Thune �/ ApprQve� by City Attomey
"� � / V1�_� lt�Ytta4
BY C.Q
Adopted by Council: Date l°�/>�y��//vJ� Approved ay for S t� siot Council
Adoprion Cerfified by Counc' Secretary gy; �
BY� ` d
Appio y or: D te � �
By:
� Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet
vg-�so
$) -Dept of Safety & Inspections
CaMad Person & Phone:
Rachel Tiemey
266-871�
must t�e on
Q4JUN-08
Doc.Type; RESOLUTION
E-Document Required: Y
DocumeM CoMact: Julie Kraus
CoMact Phone: 266-8776
22-MAY-0B
�
ASSign
Num6er
For
Routing
ONer
Total # of Signature Pages _(Clip NI Locations for Signature)
Green Sheet NO: 3054311
0 e t of Safe & Ins 'ons
1 t otSafety � IDspections Department Direcmr i
2 riAttorney
3 avor's O�ce MavodAssistant
4 onncil I I
5 ' Clerk Ci C1erk
�
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Memorializing City Council acfion taken against all licenses held by Wittwer Fitness, Tnc. dlbla Anytime Fifiess (License ID
#20060003890) for the premises located at 1678 Suburban Avenue in Saint PauL.
Planning Commission
CIB Committee
Civil Service Commission
1. Has Mis persoNfrzm ever worked under a contraa for this department?
Yes No
2. Has this persoNfirm ever been a city employee?
Yes No
3. Does this person/firm possess a skill not nortnalty possessed by any
current city emplayee?
Yes No
Explain all yes answers on separate sheet and atfach to green sheet
Initiating Pro4lem, 4ssues, Opportunity (Who, What, When, Where, Why):
A public hearing held on May 21, 2008 to discuss the Administrative Law Judge's Findings of Fact, Conclusions of Law and
Recommendarion from an administrafive hearing heLd on March 12, 2008.
Advantages IfApproved:
�emorializafion of CQUncil acfion taken as a result of the public heating.
.' .�
� — �.�= - •�i
W !'
S
..
--•�--.
Disadvantages H NM Approved:
TranSaction:
Funding Source:
financial IMormation:
jF�cpiain)
Activity Number.
CostlRevenue Budgeted:
May 22, 2008 11:37 AM Page 1
OFFICE OF TI� CITY ATTORNEY
John J Choi, CiryAttorney
Kl
CITY OF SAINT PAUL c�rDrv�<,,,
Cfoistopher B. Colemm�, Mayo� 400 City Hatl Telephone: 651266-8770
ISWestKe7loggBlvd Fauimile:65129&5619
Saozt Paub Mirviesota 55102
�r�
Apri124, 2008
NOTICE OF COUNCIL HEARING
Katluyu K. Smith
Sherrfll Law Office, PLLC
4756 Banning Avenue, Ste. 212
White Bear Lake, MN 551103205
RE: All licenses held by Health Skills LLC St. Pau1, d(b(a Anytune Fitness for the premises located at 2501- 7�' Street
VJest 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. I 5-6020-1943&3
Dear Ms. Smith:
Please take notice that a heating to discuss the report of the Administrative Law 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 Caty Clerk at any time during normal business
hours. You may also present oral or written azgument to the counci] 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 azguments made and exceprions filed, but may depart from the recommendations of
such Judge as permitted by law in fhe exercise of its judgment and discrefion.
Sincerely,
2�.e j �
Rachel Tierney
Assistant CityAttorney
cc: Diane Nordsttom, Office of Adminishative Hearings, P.O. Box 64620, St. Paul, MN 55164-0620
✓IVlary Erickson, Council Secretary
Christine Rozek, Deputy Director of DSI
Sason Wittwer, 202 Hazel Street North, St. Paul, MN 55119
Ryan Manning, 546-127th Avenue, Coon Rapids, MN 55448
Bets}� Leach, Community Organizer, District 1 Community Council
2090 Conway Street, Room 126, St. Paul, MN 55119-4040
Bsll Poulos, President, Highland District Council, 1978 Ford Parkway, St. Paul, MN 551 16-1922
AA-ADA-EEO Employer
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11�ILNNESOTA OFFiCE OF ADNIIIVISTRATIijE HEA.RINGS
soo xa� xo�c s�t
Sa�m PauL Mnmesota 55102
adaKes
Yolt� (651j 361-7900
P.O. Hssx�6G62D 17Y: (CvI} 361-7878
sr.r�t,t�esomssics.occao Apti121,20o8 �"`: �
Shari�Moore
C'sfy Clerk
310 C:ity Haf!
9b West Kellogg $lvd.
St. P�ui, i�/iN 55962
En re; l� the A�fatter Licenses held by WiKwerFifness, lnc.,
dlbla Anytime Fitness, for the premfses focafed at 1678 Suburban Avenu�,
Sain! Paut; OAH Docket No, i5-6020-19438�
Dear Ms. Moore,
Qn A�'H i 7, 2Q08, we had sent to you the orEgfna} Administrative Lavr Judge's
Findirigs of Fact, Conciusions of Law, and Recommendation and the officiai recard 3n
the above-entifled maffer. Pee fha request of yous offrce, we are andosing another copy
of the� Fintlings o# Fact, Gondusions of Law, a�d Recommendafiort.
Sirtcereiy,
� • � � 'ti
BEilERLY JOl�ES HEYDIIVGEft
Administrative Law.ludge
�
Enc4osure
Te3ephone: (651) 361-7838
APR-24-20�8 69;52 E513517938 97i
7GT:
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STA7E OF tJtlNNESOTA
OFFICE OF ADMiNi$TATlVE HEARINGS
�OR THE 8A4NT PAUL GlIY COUNC9L
In re°ttse Licenses held by Witiwer Fitnsss, FlNDINGS OF FACT,
lna, � dlbta A�ytirne Fit�ess for the CONCLUSiONS OF LAW
g�remises located at 1678 Suhurban pND RECOMMENDATiON
�venue, 5aint Paut
Th6s mattet was heard 6y Administrafive Law Judge Bevetly .lones Heydinger, on
March 12, 20D8, in Room 40A, 5airtt Paul Ciry Hai! — Ramsey County Courthouse,
15 V�est Keilogg Boulevard, 5aint Paui, Mi�nesota. 7he fiearing was held pursuant to a
NoYiCe of Administrativa Hearing dated �ebrvary 15. 2008• Rachsf Tiemey, Rsslstant
City ?+ttomey, 400 Cify Hail, 15 West KeAogg Boulevard, Satnt Paul, M'snnesata, 551Q2,
�ppeared on behaff of fhe City's Department of 5a€ety & lnspections (DSI).' ifafhryn K-
Smitlt, Sherfiif Law Office PLLC, 4758 Banning Avenue, Suks 2i2, White 6ear take,
NIN 55110-32U5, appeared on behslf of Witiwer F'Etness, LLC St. Paut, dlb/a Anyfsms
Fifness (Wittwer Fitness). Ths recard closed on April i. 2008, fiollowing receipt of the
partfes' pnst hearing memoranda.
NtDT10E
This repatt is a recosnmsndatlon, not a final dec"ssion. The Saint Aaul Clty
Council wi1l make a final declsion after a review of the record and may adopt, reject, or
mod'rfy these Findirrgs of Fact, Conclusioris, and Recommendation? Pursosnt to Saint
f'auf Legisiative Code § 310.05 (o-1), the Cily Councl! shafl not make a ftnaf decision
unti9 the parti0s have had the o[3pnrtunity ta present oral or writfen arguments to Yhe CiRy
Councii. Parfies shoutd co�act Shari Moore, Cify Clerk, City af Saint Paul, 310 City
Hall, 15 West Kellogg Boutevard, Saint Faul, MinnesoYa 551 D2, to ascertairt the
procedure foe filing exceptions or presenting arguments.
� FormerEy Oftice of License, Inspections and Em+fronmenfaf Protection (LIEP).
'ssint aaui �egistauve code g§ 3to.o5 (o-t).
AFR-2A-2008 09�5e 651361?93B 972 p,64
o�� ��b
STATEMENT OF TNE 1S8UE
1. Did Wittwes Fitness violate Sainf Pau! Legisfat�s Code § 427.07 (12} and
the correspondtng ficease condition by operaHng a fifness club without having at teast
one employee or managsr, trained and qual'�fed in first aid and CPR on the ptsmises
during its hours of operetion?
2. Ef so, is the Ciiys proposed pena3t}r oY $500 reasonabPe7
The AdmPn(strative Law Judge recorrtmends that the Saint Peul Cily Council
affirm the deterrrrination thet Wittwer Fitness vlotated Legislative Code § 427.47 {12j,
and fhe condition on its license by operating a health and sport cfub without an
emptayes on the prem(ses who was treined '+n flrst aid and CPR, and a�m� the
peoposed pena►t�r of $500_
�ased on the record and proceeding harein, the Administrative Law Judge
makes fhe foilowing:
FfNDiAiGS O� FACT
4. Wittwer Fitness Inc, holds License tD # 2008Q�o3890 to operate a heatfh
and sport cfiub end a tanning fiacility at 1678 Suburban Avenue, in Sairtt Paul.
2. JasoR and Joseph Witiwer are brothe�s wha own Wcttwer Fifiess.' (n
Navember, 2006, they aPplied for a 6cense to operate a fi#riess artd tanning facitity
dafng business es Anytime Fitness.
3. Saint Paui Legislat±ve Code § 427A7{12), applicabie to a heaith and spoR
Gub, states:
At laest one (1) einployee ar rnanager, trained and qual'sfled in first
aide and CPR accarding to ths standards estabiished by rule by the
depar€ment of saFsly and inspections shaif be on duiy at alf fimes
tfiat the Iicensec3 peemises ere in opsration or ope�a to member or
the publia
A, Prior to the time fha4 the license was issued, DSI staff inet w�th Joseph
Wiriwer trs discuss the requirements that appiiec4 tu a heaBYh ciub and requested
addit�onsd information about the tay-out of the dub's space, Fh� parking, and the hea4ing
' Ex.tA19-2
` Tes26nony (Tsst.) of Christine fZozek; Test, of Joseph Y+''dhver.
APR-24-202B E9�53 6513617938 9ri P.BS
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and uentilafion system. !n addi�iort, AJlr. Wittwer was irrformed abouf fhe requirement to
give notice to the neighbors about the license application.
5. !n ear{y January, 2007, abouf the time thaf the hsafth club was scheduled
to opett, Jeson Withuer teamed of DSI's interprefation that an ernp{oyes or manager
must be on ttre premises during alE hours oi operation.
8. On at least two occasfons in January 2007, Jasan Wittwer met with
Christina Rozek; Witliam Gunther, Seint Pau#'s Ersv'ssonmental Nealth Manage�; Saistt
Paul � City Councilmember Katity Lantry; and representatives of ihe Anytime F'itness
fr�nchisor, to discuss the ordfnance. During the meatings, Jason 5+tii'stNuet and t3�a city
officials discussed DSI's inierptefatian and fhe possbility of changing the ordinance to
eliminate the `on duty' requirement. Mowever, Councifinember Lan#ry determined that
there was insuffrcient support on the City Covncii to enact such a change.'
7. The partiss aisa di&CUSSed a variance from the "an dut}�' require�ent.
Howevsr, �Si did not grant a variancs because if no staff inem4er were on the
premises, Wittuier Fitness m6mbers wouid not have 3mmediate access !o CPR.
$_ DSI issued a license to Witiwer Fitness 4hat included a condition with the
same requfrement conta+ned in §427.07(12) and a second condition for its tanning
facifity ihat stated; "Customsa use of tanning facilitiss shatl be reshicted to those haurs
whe� at least one indivldual amployed �y tha iicensee !s available on site.'� On
January 9, 2007, Jasan Wittwer returned Ehe signed candi#ians Yo a 13S} staff membar
with � cover meeno that st&led:
Here are tha slgned condilions that your dapartment is requiring of
me. Ptease understanQ that I agfee to them under distcess as I
have no othec cholce and have to open rny business aF this time. 1
sincerely hope that some resolutinn can (be} made in the near
fvture to accornodate (sic} our type of business and wish that these
(ssues were brought to mp attentlon at the beginrsing of the
applicat(on process, rather the end...when it was too late to change
caurse.
9, Jason Wittwer informed Joseph wiKwer about the meefings with the ci4y's
representativss,' V�!'Rtwet Fifrtess closed 'sts facitfty for a shott per'sod of t(me in ortiee to
i Test. o€ C. Rozek; Test, of Joseph Wiriwer.
° fast of Jason WlNwer.
7 Test of Jason W Ittwer; Test of C. Rozek; Test. oi W. Gurriher.
° Tast. of W. Guntteer.
° 7hls requir�nent is corFSisten[ Wi6f Minn. StaL ch. 325H (Regulatioo of Tanning FacN�4es), an@ Saint
Paul Leglslative Coda Chepter 380 {ianning �'acililies).
'
1° Test. of Josaph Wittwer.
APR-24-2008 09�53 6523617938 97i p,66
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get its staff trained in first 8[d and CPft, buf re-opened after same of the owners and
employees campleied ths certifrcation.'
10. Although W'ittwer Finess was aware of �Sfs position that a staf� membar
musf be present in fhe health club during its hauES af operatian, (t cMose to interpret the
term "an d�f}P to mean availabfe by telephone. In so dofng, Jason Wiitwer and JosepY�
Wittwer compared ihe language that, in thefr view, required tanning factllty staff to be an
fhe premises wifh thair view of fhe term "an dut+�' in the heal#h dub ordinance.'
91. WittwBr Fftness does not have an empioyee on the premises durir�g atl
hours of operation. A staff mamber may be contected by telephone at any time. Two
hand-ietferet3 signs are posted near the 6afhrotrm anc! ttte frosrt daor at the ctub that
siata "24 Haur Managsr On Duty Cali 651-353-5977," and one included the language
"for emergency questions or concems." The teiephone number belongs to tJichelte
VJ'�tiwe�s cefl phane, which she tceeps with her at a11 times that she is on duty. Ms.
W+ttwer lives about one mi[e from ifie heatth dub and can ge# to the ctuis in iess than
five minutes. Occasianally she works at tha club as a petsonai treiner. She has 4een
trained in first aid and CPR. When sha is nat evailabte, an altemative numtrer is posfed
fa� Joseph Wittwer or Jason Wittwer.�
12. Although Wiitwer Fftness does not have an empioyee on the premises
during all hours of operafion, 9t does have neckiaces thaC customers ara en�uraged to
wear when using the exetcise equsQment, and panic bultons are iocated throughouY the
faulity. The buttons are cannected io "Rro Visian," a security eompany that wi11 contaci
911 far poliee assistance and afso natify WitEwsr Ftness. Neither fhe necklaces tsar the
butta�rs are directly connected to the 911 system.
13. Wittwer Fitness alsa has securify cameras. ln the even# that a person
atterrtpts to arrter the faciliiy without using a r�quired security pass, the entry wiN be
recz�rd9d an a computsr system that #s linked to the cameras, The owners and
mansger can check the camputer from off-site to de#ermine If a person has entered
wifhout the reguired pass and Can check the recorded images fsoni the security
cameras to datermine who entered and how the entry occurred. The cameras are not
continuously monifored when persons are using the facility, but #he computer program is
checked regulas{y for unaufhorized entry. The camei�as are not 1{nked to Pro Visian, and
the security compa�y caanot manitor the cameras. 7here is a c�ded ke� pad outsfde
the building entt�nce to altow police end fire ta gain ar,c�ss to the building. 7
' Test of Jason Wittwer.
"'fest. of Joseph WiYN+er; TesL of J&son Witiwer.
19 Fxs. W7 snd WB.
„ resc. or n,ncne��e w�rnxe�,
' af Jaseph Wfttwer.
°t Test Of,losepPf Witlwer.
4
APR-24-2008 09:53 6513617938 97i P.67
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14. On one occasion, a panic button was pushed and Pro Vision cafleci the
poiica. hAs. Witlwer arrived at ifie fac(lity aSter the police arrived, Jason W"ittws� stated
that tlte police ardve betore fhe staff "every time' that a cali Is made. i8
15. The Any#ims Fitness businass modei provides low-cost access to .heafth
iacfliUes 2&�hours a day. The Wittwers are concemed that they cannot operate tfie
mode! successfufly if the faciliiy must be stafEec[ at all tirttes. iV�oreover, they believe that
the st�fiing requiremant fs out�fated bec8use oi the new security features and because
th� f�nefits of a#lowEng !aw-cost access fn heaRfh cfubs at any time of day outweigP� the
smeN heaffh riska of operafing without a staif inember preserrc. "
18. Robert Kessler, the Dfrector of QSi, asked tJls, Razek Yo check Wftfwer
Fitness inr comptiance with the code and its license cortditioR, in response, Safnt Paud
}'oiice Sergeant Craig Gromek and Sergeant Simmons wer�t to.the health club in i�e
evening af November B, 2047. The offscers entered the facilily by foltowing a ciub
member through fhe froM door and found that there were no Vd�iHwer empioyees or
managers on the premises.
17. Based an the police report, Ms. Rozek recommended adverse action
against Wiftwer Fitness �
18, The Witiwers have checked with hotals that have ort-site fi#ness centers
and do s�ot be!'revs that staff msmbers are present when guests ase using those
fiacilities z
19. 7he Rnytime Fifness- fraRChisor is working v✓�th regulators in many states
to educate them about t{+e benefits af its business model, includ4ng greate� access and
affordabitity, Anytime Fitness s#resses the securtty at its faCiiities. and the requ9red
training for staff and members, 'snciuding training about the benefit af waaring a
necktace wlUi a panic button while ex�rcising. There are 101 Anytireee F'dness
frartcftfses in Minnespta, and atf but three are Qpen 24 hours a day. fn na instance has
a c(f��f suifered rhedica[ p�bfems because of a delay in receiving medicai treatment,
.
20. The City first regulated heakh cPubs iri 1989. Since the Ciiy added the
requirameM fbr first aid and CPR Vaining to the fegislative cods provision in
approzimatsly 1992, the Gity has consis#ent�y interprefed ths term "on duiy" in the code
prov+sion to mea� that an empioyee or manager with the required training must be on
fhe �remises during a31 houes of opera6on. The purpose o# the safety requiremer+t 6s Yn
' Test. of RA. Wlttvser.
1° Test. of Jason W ittwet.
�" Fest o9 Jason W Ithvar,
Z ' TaSL oi C. Rozek; Ex. W3-2.
� Tes�. of C, Roz¢k,
'� Test. of Jason W IEtwer; Test. of JosePh W it4v+er.
�" Test. Gf Nark Daiy,l3ational Medie Directar, Anytime Fitness.
APR-24-2006 09;54 6513617938 47i P.98
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assure fhat a tra"rned persort is on hand to render emergency assistance in ths evenf
mat a ctsstomer is fnf��'� or suffers a hear4 attack while using the facility. A}though
therB is a contaet number posted at Wittwer Fitness, and custamers may push a button
in an ernergency, nsither is sutficient to provide immediate medica! assistance.�
21. Wiiliam Guntfser, the Cifys Environmentai Health DEreckar, expiained the
impor�ance of immedia4e adm)nistretion of CPR �o keep o�cygen c+rcufafing to fhe brain.
and the damage from loss of oxygan, inctuding some braln damage in four mt�utes,
perenanent brain damaqe in seven minutes, and the poor chance of suniNai after fixeive
minutes without o�n, ff a patron wera to cali the number of tf7e sta�f attendastit rather
than S'11, the cat{ wouid delay the emergency response. A person off-site wouid be
unabte #o render the tequired assistanca, and there would be no reason to require Yhat
person to have first a'sd or CPR Yreining 26
22. !n addi6on, the City is concerned that unauthorized persons may enter the
fitness eiup, which coutd pose a sa#ety risk fo its customars_ An on-site empioyee wnuid
be avaifable to immedfately check the identity of such a person and take tfie appeapriata
steps to remove the individuai.
23. Exercise rooms in hotets and condominiums do not require a healthJspoet
club license because hotets and condominiums are nvt {n the business of opesating a
hea4th os spart ctub 2
24. , Tha Gity Gourtci! has authority ta Impose a fine upon any licensee as an
adverse actlon, in an amount that is reasonabte and appropriate. To that end, it has
establishsd psesump6ve penalf+es for viofatians. The City Cou�cil may deviate from tt�e
pres�mptive fine iF there are substanfial and compaffirtg reasons to do so.�
26. On Decembee 6, 2007, the D31 serrt a Not+ce of Violatian to Wiitwer
Fi4ness altegtng that Wfriwee f'itness had viotated Sf, Paut Legtslative Code § 427.07
(12} and Cond'Rion One of its ilcense. The nofice stated ihat DSi wouid recarrsmend a
$500 fine to the CiYy Councit for the vlolation. 30
26. Wittwer Fltness requested a hea�3ng Ya chaHenge the viofation. The City
issued a Nafice of AdminiskaUve Hearing on February 15, 200B, scheduling the hearing
for 1V►arch 12, 200$ �
� Test of C. Rozek; Tast, of W. Gunthsr.
� Test. of W. Gunttier.
�' Tast af C. Fto�k.
z6 Tsst, of W. Gunther; See Sattst Peu4 Legis[aUve Coda § 427.04.
� Seirrt Fau) Legisiative Code § 310.05(1} and {m}.
36 EX. W4,
°t Ex.W5.
� F�c. W8.
APR-24-Z008 H9:54 6513617938 97% P.09
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27. 3here fs no substartiaf or campelling reason to deviate {ram t,fie
presumptive panalfy of $504.04,
28. Arty Finding ot Fact more propedy fsrmed as a Conctusion is hereby
adopted as a Conciusion
CONCLUSiONS
1. The Admintstrative Law Judgs and the Saint Paui City Counoil fiave
jurisdiC4ion In this case.�
2. The Applicant received #imeiy and proper nofice oi the hearing, ancf the
City has complied with ail retevanf substantive and procedurel requirements of sfatute
and rule.�
3. The City Coe�n�it has authcrify to deny, suspend, ar sevoke a license and
ta lmpose penalties for the vfolafian of a�s�iicable statutes and cules � The presumptive
penaity ior a first violatian is a$506 fine.
4. DS! has the burden of proving that the L[censee violated the applicable
provis6on8 of s4ate law and city ordinance by a preponderance of the evidence.
5. 3aint Paut Legislative Code § 427A7 (12� 5tafes:
At feast one (1} empioyee or manager, trained and qualifred in flrst
aid and CPR aecording to standards establishec! by rule by the
department of safsty and inspecfions shait be an duty at atl times
that tFte licensed premises are in operation ar open #o members or
the pu6tic, 8uch standards shal! be in cot�formify with standards
and guidefines estabiished by tha Americ�n Red Cross with respect
to water safety lnstructors or by ttte American Heart Association for
simi(ar purposes.
8. DSi has reasanably {nterpreted tha term `on duty" t� mean that the
employee or manager must bs on the gremises ict o�cier to give effect to the raquiretnent
that+such an ernpEoyea or menager rnust be trained in first aid and CPR. in Ifght of the
Ean�uage of the provision as a whole, this is a reasona6le +nterpretation that glves
mea�ing to eactt part of the provisiort and is cansfs4ent wikh the obvi�us irttet�t of the
requiremerrt.
ss saiM Paui LsgfSietive Code §§ 390A5, 310.08; Minn. Staf. g 14.55.
36 Sae Minn. Sta4. §§ 14�57 - i4,61; Saint Paut I_egisietive Code §§ 310.05; 310.06.
� sa�nt Paut L�ss�ae;ve eoae g§ ala.as(i}, aso.os.
98 Saint Paut LeglstaUve f.ode g 3�0.05(m}.
FPR-24-20p8 @9:54 6513617938 97i P.SO
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7. DS{ has psoved by a preponderance of the evidence tha4 Witlwer F'ftness
faited to have an emptoyea or man�qer frained and quatified in first aid and CPR on
duty while the ticensad establishment was in operafion and open to memhers, in
violation of Saint Pau! Legisfative Code § 427.07 (12), and ifs licsnse cond96on.
8_ DSI's proposed fina of $5�0 !s reasonabte and consisterrt with the C6fy's
penali� matrix.
3. 7he City Councit may impose costs of a contested case hearing on a paRy
if its position was "Irivo4aus, arbitrsry ar capricious, made in bad fiaith, made for tlta
purpase of deiay or harassment,' and for other reasons that urouid not be applicabls to
tfie afleged vioFations ia this matter, WiEtwar F'�tness's appaa) of tha violation of its
ficense was taken in good faith and was not frivaious, arbitrary or capricious, or mada
for the purpose of delay or harassment.
Based on the taregoing Condus'sons, the Ac{ministrative Law ,tudge makes the
fo(lowing:
RECOMMENDATIOIV
BT i5 NEREBY (2ECOMMENDED. tfiat the City of Saint Paui impose the
pr0sumpt�ve firfe of $5fl0 agaiRSt Wittwer Fitness.
Dated: Aprii 1't , 2008
Digitaliy Recon9ed;
A•bjh-03'f 22008
� �'!.a/���� A ,, _ _ *� .
I, -!�" �/j J�f ^��
� ,
�• ..:
MIEMORANOUM
The 5aint Paul Legislailve Code and the cAndition pfaced on Witiwer Fitness'
liCSnse both required that an employee trained in first aid and CPR shatl be "an duty' at
ail 6rvias that the facility was (n operatlan or open ta its members.� DS! has interp�eted
`on duty" in thls context to mean thaY the smployee must ba on the ptemises. Wittwer
�iMess does not deny that it operated its facillty when no empioyee was on the
peee:rises wh� was trained irP first atd and CPR. Wittwer Fitness cBeims ihat Bf compties
vvifta 2he reGu°srement by posting the name and tefephone number of a Yca(ned employee
who is on duty and may be cantaded at aSt times.
"SaiRt Pau! Legls{afive Cod� § 310.45{k).
S8 Seint Paut l.egislatNs Code § 427 {1z� Ex. H3.
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i; . •
DSPs intespreiation is consistent with the plain meaning of the ordinance. ln
order to give meaning to the fu(I te�, a person must be on the prsmises 4o pertorm first
ald or CPR as neaded. Persons who ars itt os injuced may not be abie fo assfst
themseivss, and the time that it would ta3ce ta summon a staff inembsr who is awsy
from� the healFh Gub or #o push a buttort that triggers a request for a potice o#flcer
defeats the purpose of haviog a trained parsan availabte. A call to 871 will bring h21p
w'sth iequal spaed, regardtess of whethes a staff person tratned i� ftrst aid or GPR were
callad first. ff Wittwer Fitness's argument wsre {ogica{, the ordinanee would require
posted noEice W cait H7 3 or push ona af the Qanic bui#ons in an emergertcy. Aithough a
potic:e officer may tre frained in flrst aid and CPFt, this adds a step to obtaining the
necessary medicai cere. Thus, fhe meaning W[tiwer Fitness gives to the ordinance is
unsc;asonabte arsd f�Os 4o accompiish ths purpose tor whlch 3t was ena�ted. 4t also fai9s
to gia+e effect to fhe ianguage of the ordinance as a whole by rendsring the fitst aai antS
CPR training requiramerrt meaningiess. Wittwer Fitness's claim that CPR trsining
includes instructing snother person fo pertorm CPR is nat persuasive since there may
nof be a petson on itand tn take dlrect'son, and no way for #he parson giving ciirection to
obsetve whefher the diractions warE foitowed. Ordinances should 5e irttarprsted to give
tuN �ffect to ail the provisions, and not to interpret them in a manner that woufd lead to
art unreasonable result or defeet the purpose for+,vhich they wete enacted 38
Moreover, �S4's 'snterpretation of the ordinance is entit{ed to some deference
because It Rs reasonabie, consisterrt wifh the piain language of the ordinance, and is an
inter,pretation of tong-sfanding ° DSi's witness, Mr. Gunther, testified 4hat since the
first aid and CPR �equfremer�ts were added to the ordlnance, D5l has consistently
required that an ampioyes be on the psemises.
Witfwer �iFnass also ehallsnges the applicable ordinance because exercise
raoms in hotets and condorttintums are not subjeet to fha same ticense requitemenfs.
UVil4iam Gunther explalned thaf hotets and condominiums are nat in the fitness business
and� offer exercise as en amen'�ty to their customers or owners. A heatfh Gub IiceY�se (s
req�nired oniy for persans in the business af operating a hsalthlsport club.`� ln addition.
merrsbers o{ a condominium assoclation are using equipment fhat thsy owrs, and tha
Ci#ydoes nat rsgulate privata, pe('sonat use of exercise eguipmsnt, Govemments tttay
eeg�a4ate part of an ar�'svity or address pari nf a prob4em wNhou! reguiating the ertti€e
fretd. tt is not required io °strike aE afi fhe aviis at once: �
� See a.g. Mtnn. SCat. � 645.17 (t and 2) (princlpies of statutory corrsiruction).
6° Awlg TeT.Co. v, Northweslem Betl teA Co., 270 N.W.2d i 1 t,114 {A�9tnn. 1978); tn iha MaKer of ffie
Ckls�s ofAnnandata and Maple Lake, 73t N.W.2d 502. 512-513 (Mlnn. 2007).
" Compare Saint Paul 1.egislative Code § 427.01 (definitlan of heaf�lsport dub) vrith § 407A1 (deftn3tion
of hofet}.
'� M/nnesofe v. Ctover Lesf C�eamery Co.. 449 U.S. 456, 466, 1�1 S.Ct 715, 725(1981); Essling v.
fvierkham, 335 N.W 2d 237, 240 {Mlnn. 1 B83).
SPR-24-2098 fl9�55 6553517938 97z F.12
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Wittwer Fitness campares #re use of the term "on duiy' in trie ordinance
regu{ating health c(ubs with the more spec�c `on duty on the premises° language on the
ardinance goveming "game rooms." Although the provision applicahie to game rooms
is mor� speoific, 4t is alsa inctuded "sn a provision that would not otherwise imply such
speciftcity, unfike me requirement far heaith csubs that the employee an dvty he csrt'sFied
for first aid and CPR Tha Cif}+ is not raqu"sred to emptoy identicaf fanguage throughout
its ordSnances, nor ars the health du5 and game ruom provisions so fiksfy to be read
togettier that tha different choice of wards wouid cause confusion.
Wittwer �itness also argues fhat the ordinance is out of step with updates in
technology and faiVs to fake inta account tfiat the benef�ts of being availabie at a low
cos# �nd at hours that serve many schedules ouiweigh the risks of using the exerC�se
facifiiy without a sfaff inembeC present, or even on-duty. These arguments ars more
appropriately brought to the City CounGl for its consideration. Occasioneliy, in applying
a Iaw�or rule, faetuai situations that.were not considered durtng ttre legisiative pracess
come.�to light thst may yieiri a harsft or undaslrable resul# In a patticukar case. However,
tfiis does not make tfie taw invalid so long as the law as appliac3 is ratianalty related to
the re5utt thst the enactm8nt was intended to achieve. The ordinancs would be invalid
as applied only if its application iacked a retional relationship to the obJective �t Was
enacted to address.'� In thls case, it Is clear fhat the application of the ordin�nce to
Wlftwer Fitness is consfstent with Its intended purpose end would in fact benefit the
hea{tt€ club°s patrons, Wiriwer Fitness cfaims othetwise. bacause it contends that it
cann�4 charge its iow rates iE it must have sta#f on the premisss during all hours of
operation. A►so, it beiieves that the enforcement of tfia ordinance is unfsSr because it
was unaware of DS['s +riferpreiatlon at Yhe time that it leased spaca, remodetecf and
apened. Although it rttay be more costly for Wiriwer �Fitrtess to compiy wfth ttsa
ordinanca, the reasonableness must be viewed from ths end so�ht to bs achieved and
not da� Ilght of the ordinance's appGcatian to a particular party. Wlttwsr Fitness was
avr�are of RS!°s interpratation from at teast January 2�oT, up to the time of the iaspection
9n IVovsmber 2007, whict� led to 4he fi�s.
Apprppristeness of tha Penalty
. DSt proposed a flne of $50a, the presumptive penalty for a first violation as
Witfinaer Piinsss was on notice of the requlrement and OSI's +ntespretafion of ik it is
doubffu! that a warning wou{d hava the desired deterrent effect Based on the fads
preseC�ted, the prssumpfive penatty is reasonable,
4e Mamme�e v. Dept of Human Services, 442 N.W.Zd 7H6. 789 (Minn. 7989), citing Wickard v. FObion.
317 U.S. 111. 'l29-130, 63 5, Ct. H2, 9i (1942}; tn ihe Maftsr of the Lawful C�ambling Ucenss of Tlrlef
Rh+er�sPis Ameteu� NockeyAsS°n, 595 N.W 2d &t3d, SOB-607 jMinn. App.19949.
°` ErOers Memottat tdome v. DepY of Hnman Senrkes, 3S4 N.W.2d A38, 441 jMShn. App.1886}.
as Saic�t Paul Legisiat(ve Coda § 316,ES5(m},
10
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DSNs request for costs
DS{ may request costs if ftre Licensee's appea! was frivolous, arbitrary or
cap6cious. No such award of costs is justified in ffiis instance. Wifiwer fifness
sinca�aty hetieves tha# ffse osdinence shouid not be applied fo it, and those argumenfs,
aEtt�ough unpersuasive, were not speclous or advanced salely ta detay or harass
enfoe',cement
�
'. B.J.H,
tt
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