09-813Council File # 0 / -SI3
Green Sheet #-�
RESOLUTION
2
0
/-�
6 WHEREAS, licensee denied the allegations and requested a hearing before an Administrative Law
7 Judge; and
8
9 WHEREAS, a hearing was held befare an Administrative Law Judge on May 7, 2009, at which
10 each party was represented by Counsel, presented testimony, and offered exhibits, and
11
12 WHEREAS, the Administrative Law Judge issued a Report on June 25, 2009, in which the
13 Administrative Law Judge issued Findings of Fact, Conclusions of Law, a Recommendation and a
14
15
16
17
18
19
20
21
22
23
24
WHEREAS, neither the city nor the licensee filed any exceptions to the report of the
25 Administrative Law dudge; and
26
2�
28
29
30
31
32
33
34
35
36
37
38
39
40
41
Memorandum; and
WHEREA5, the Administrative Law Judge found that there was insufficient proof that licensee had
committed the violation of the noise ordinance and license condition as alleged in the Notice and
recommended the adverse action be dismissed; and
WHEREAS, the licensee was given notice that a public hearing would be held before the City
Council on July 15, 2009 at which time licensee would have an opportunity to present oral or written
argumenY to the Council; and
WHEREAS, at a public hearing on July 15, 2009, the Council of the City of Saint Paul considered
all the evidence contained in the record, the arguments of licensee's attorney at the public hearing, the
Administrative Law Judge's Findings of Fact, Conclusions of 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 hearing before the
Administrative Law Judge, all the documents and exhibits introduced therein, the Findings of Fact,
Conclusions of Law and Recommendation as referenced above, and the deliberations of the council in
open session of that hearing; and be it
WIIEREAS, Richard A. Defoe Enterprises, Inc. dlb/a Club Cancun (License ID # 0096027)
(hereinafter "licensee") located at 1638 Rice Street in Saint Paul received an Notice of Violation dated
February 24, 2009 alleging a violation of the noise ordinance and a license condition related to noise on
February 14, 2009; and
�-ge3
42 FINALLY RESOLVED, that the Findings of Fact, Conclusions of Law, and Recommendation of
43 the Administrative Law 7udge in this matter are hereby adopted as the Findings and Conclusions of the
44 City Council in this matter and the adverse action is DISMISSED.
45
46 A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and
47 to the license holder.
48
Request�d by Deparhnent oE
�J 0
By' l..l, �-
Approved by the Office of Financial ervices
By:
Approved by Ciry Attorney
By _�
Approv ayo rSub �' nto oun
By:
Adopted by Council: Date �y C�i �('j�
—r--�—
� Green Sheet Green Sheet
Green Sheet Green Sheet Green Sheet Green Sheet
nci� d I :2
�
�
DepartmenUO�ce/Council: Date Initiated:
v / v��
S � _ Dept. of Safety 8� Inspections 16-JUL-09 Green Sheet NO: 3072659
� Depar6nent SentToPerson Initial/Date
I Contad Person & Phone: �___ �
I RachelTiemey � 0 pepkofSafety&Inspections I
266-8710 i � 1 ept of Safetv & Insoections I Deoarnnl — ent Directo�
Assign � 2 rivAttornev �--� i
� Must Be on Council Agenda by (D ): Number � I
; 05-AUG-09 �` � I For �I 3� a or'sOfLce I Mavor/Assisraut
' Routing 4 °°°�� � -- I I
I Doc. Type: RESOLUTION Order 5 'ri Clerk Citv Clerk I
1
� E-DOCUment Required: Y
Document Contact: Julie Kraus
Contact PFone: 266-8776
Total # of Signature Pages _(Clip All Locations for Signature)
Action Requested:
Memorializing City Council acrion taken July 15, 2009, dismissing adverse action against all licenses held by Richazd A. DeFoe
Enterprises, Inc. d/b/a Club Cancun (License ID#0096027) for the premises located at 1638 Rice Street in Saint Paul.
Recommendations: Approve (A) or Reject (R): Personal Service Contracts Must Answer the Following Questions:
Planning Commission 1, Has this persoNfirm ever worked under a contract for this department?
CIB Committee Yes No
Civil Service Commission 2. Has this personlfirm ever been a city employee?
Yes No
3. Does this person/firm possess a skill not normally possessed by any
curtent ciry employee?
Yes No
F�cplain ali yes answers on separate sheet and attach to green sheet.
Vnitiating Probiem, tssues, Opportunity (Who, What, When, Where, Why):
A public hearing was held on 7uly 15, 2009, to discuss the Administrative Law Judge's Findings of Fact, Conclusion of Law and
Recommendation based on an adminisffative hearing held on May 7, 2009.
Advantages If Approved:
Memorialization of Council action taken as a iesult of the public heazing.
DisadvanWges If Approved:
None.
DisadvanWges If Not Approved:
ToWI Amount of
Transaction: Cost/Revenue Budgeted:
Funding Source: Activity Number:
Financial lnformation:
(EXplain)
July 16, 2009 10:28 AM Page 1
OFFICE OF THE CITY ATTORNEY
John J. Choi, CityAttomey
a`l-gl3
SwINT
PAUL
�
AAAA
CITY OF SAINT PAUL
ChristopherB. Coleman, Mayor
(�.1V1) �IVIS10f1
400 City HaII
15 West Kellogg Blvd.
Saint Paul, Minnesota 55102
Telephone: 651266-8710
Facsimile: 657 298-5619
June 29, 2009
NOTICE OF COUNCIL HEARING
Dennis Johnson
Chestnut & Cambronne
204 North Star Bank
4661 Highway 61
White Beaz Lake, MN 55110
RE: All licenses held by Richard A. DeFoe Enterprises, Inc. d/b/a Club Cancun for the premises located
at 1638 Rice Street in Saint Paul
License ID #0096027
OAH Docket # 61-6020-2035�-2
Deaz Mr. Johnson:
Piease take no6ce that a hearing to discuss the report of the Administrative Law Judge conceming the
above-mentioned licenses has been scheduled for Wednesday, July 15, 2009, 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 exceprions to the report with the City Clerk at any time during normal
business hours. You may also present oral or written ugument 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 permitted by law in the exercise of its judgment and discretion.
Sincerely,
I��'���U✓1/w�.� �1A-/d�
Rachel Tierney
Asslstant Ciry Attorney
cc: Diane Nordstrom, Office of Administrarive Hearings, P.O. Box 64620, St. Paul, MN 55164-0620
v�1ary Erickson, Council Secretary
Chris6ne Rozek, Deputy Director of DSI
Richazd A. DeFoe, 200 Concord Exchange North, South St. Paul, MN 55075-1103
Kerry Antrim, Exec. Director, District 6 Planning Council, 213 Front Avenue, St. Paul, MN 55117
AA-ADA-EEO Employer
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MINNESOTA OFFICE OP ADMINISTRATIVE HEARINGS
600'_Vorth Robert StreeE
Saint Paui, Minnesota 55101
Mailing Address: Voim: (651) 361-7900
P.O. Box 64620 T7Y: (651) 361-7878
St. Paul, Minnesota 55164-Q62D Fax: (651) 361-7936
Shari Moore
St. Paui City Clerk
29d City Ha[!
15 W Keilogg Blvd
St. Paul, MN 55102
June25,2009 ��������
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Re: !n the Matter ofAdverse Action AgainstA/1 Licenses Held By Richard
A, DeFoe Enterprises, fnc., d/b/a Club Cancun License /D #0096027
dAH Docket No. 61-6020-20350-3
Dear Ms. Moore:
Enclosed herewith and served upon you by mail is the Administrative Law
Judge's Findings of Fact, Concfusions and Recammendatlan in the above-enfitled
matter. Also enclosed is fhe officia( record, wifh the exception of fhe recording of the
fiearing. 1f you would Vike a copy of that recarding, piease contact our office in writing or
by tefephone at 651-361-7906. Our file in this mafter is now ciosed.
Sincerely,
�� ` "�`_ `�,�`�J
M. KEVIN SNELL
Administrative Law .ludge
MKS:dsc
Enclosure
cc: Rachel Tierney
Dennis B. Johnson
Tetepfione: 651-747-0374
Oq-S13
OAH 61-6020-20350-3
STATE OF MINNESOTA
OFFICE dF ADMINfSTRATIVE HEARINGS
FOR THE CITY OF ST. PAUL
In the Matter o€Adverse Action Against FINDINGS OF FACT,
All Licenses Hetd By Richasd A. DeFoe CONCLUS►QNS AND
Enterprises, inc., d/b/a Club Cancun RECOMMENDATION
License ED #0096027
This matter came on for hearing before Administrative Law Judge M. Kevin Snell
(the ALS) on iNay 7, 2009, at the Ramsey County Courthouse, 15 West Kellogg
Boulevard, St. Paui, Minnesofa. The OAN record closed on May 26, 2009, upon receipt
of the Licensee's post-hearing reply brief to the City's post-hearing closing argument.
Rachel Tierney, Assistant St. Paul Ci#y Aitorney, 15 West Kellogg Boulevard,
Suite 400, St. Paul, Minnesota 55102, appeared at the hearing as attomey for the City
of St. Paul (the Gity). Dennis B. Johnson, Esq., Chestnut & Cambrone, P.A., 2d4 North
Star Bank, 4661 Highway 61, White Bear Lake, Ivtin�esota 55110, represented Richard
A. DeFee Enferprises, lnc. {Licensee andlor Gub Cancun) at the hearing.
STATEMENT OF THE ISSUES
1. Did #he Cify prove by a preponderance of the evidence that, on
February 14, 2009, Club Cancun violated candition number one of its Iicense by faiting
to employ directional bass, saund absorption measures, and other noise controls to
minimizs the noise from inside the establishment from disturbing the neighborhood?
No, the ALJ finds that the City did not meet its burden of proof on tktis issue.
2. Did tfte City
February 14, 2d09, Club
Legislative Code § 293.�2?
prove by a preponderance of the evidence that on
Cancun violated the City's noise ordinance, St. Paul
No, the AI.J finds fhat the City did not meet its burden of proof on this issue.
Based on the evidence in #he hearing record, the Administrative law Judge
makes the foltowing:
6g��13
FWDlNGS OF FACT
Facfua(Background
1. Mr. Richard A. DeFoe is the ownec of Richard A. DeFae Enterprises, inc.,
which is fhe current owner of and does business as "Club Cancun° at 1638 Rice Street
in the City of St. Faul, M€nnesota. Club Cancun is a resfaurant and bar thaf hoids
restaurant, entertainment, gambling, and liquor licenses issued by the City.�
2. The premises at 1638 Rice Street have been a bar and restaurant far over
40 years, with various names and owners. Mr. DeFoe first purchased Ciub Cancun in
1997. He sold it on a contracE-for-deed in 2007. The owner defaulted and Mr. DeFoe
reacquired Club Cancun in early 2008? The area around Club Cancun is commercial,
wifh some residential properties surrounding the commercial area 3
3. The en#rance utilized when Club Cancun is open is the back, or east,
entrance. That entrance opens out into a parking lot. Adjacent to fhe parking lot is an
alley. Directty across the alEey from Club Cancun to the east is McCarron's Village, a
large apartment compiex that has scores nf residents 4
4. The nearest residence to Club Cancun is a second floor apartment to the
north thaf shares a common wali with Glub Cancun. Across tt�e ailey frorn Club Cancun
and running along the north side of Wheelock Parkway east of Rice Street are a group
af townhouses located approximately 54 feet from fhe back of Ciub Cancun, then
confinuing east are a number of single family residences 5
5. Somefime in 2006 or 2007, Ms. Patricia Carlson and her family moved into
the single-family resEdence at 174 Wheelock Parkway (the Carison residence). The
Carison res'sdence is located on the sout�wesf corner of Wheelock Parkway end
A(bemarle Streef, approximately one ancf one-haif blocks southwest from Ciub Cancun.
Directiy between Club Cancun and the Carlson residence is a very busy SuperAmerica
station-store that is locaYed on the northwest corner of Rice Street and Wheelock
Parkway.
6. There is a lot of car and truck noise at the intersection where the
SuperAmerica is located. Noise from automobile tra#fic getting gas at the SuperAmerica
station is bothersome fo Ms. Car(son.'
' Exhi6its 2-3 and 13; Testimony of Chrisfine Rozek, Deputy Director, St. Paul aepartment of Safery and
Inspections (DSI).
Z Test. o# Richard DeFoe.
3 Test. af Q Rozek.
" Ex. 9; test. of City Patrai O�cer Tong Yang and R. DeFoe.
S id.
6 ld., test. of Patrfcia Carlson.
' Test. of P. Carlson.
2
o9�S r3
7. Directly across Albemarle Street from the Carlson residence, on the
southeast comer of Wheelock Parkway and Albemarle S#reet is an apartmenf complex.
S. Across Aibemarle Street and approximatefy one-half biock north of the
Carlson residence is the Lamplighter, another bar and restaurant. The Lampiigfiter is
close to the same distance to the Carison residence as Ciub Cancur�. The Lamplighter
and fhe Carlsan residence appear ta be in direcf Iine of sighf, wifhout any intervening
structures between them 9
9. Ms. Carlson and others had compfained to the St. Paul Police Department
many times about Ioud music coming from Club Cancun during the period in 2007 to
eariy 2008 when the interim owner operated the estabiishment. Some compiaints were
confirmed by the police, some were determined by the police to be unfounded.
10. On Aprii 30, 2008, after a period of negotiations between Mr. DeFoe and
the City that involved legal counsel for both parties, Mr. DeFoe agreed to three license
conditions that would be put in place before he re-opened Club Cancun. Ms. Carlson
was also involved in giving her input into the licensing conditions process. The relevant
two conditions, numbers one and three state as follows:"
1. Licensee wiil employ directional bass, sound absorption measures,
and other noise controis to minimize fhe noise from inside the
establishment from disturbing the neighborhood. This condifion wilE be
reviewed on or after June 30, 20Q8, and is sub}ect to change if the
measures employed by the licensee are not effective.
3. Priar to reopening of the esfabiishment, the licensee will mee# with
DSI to review the ficense conditions.
11. In accordance with condition number three, Mr. DeFoe met with DSf
personnei on December 23, 2008. During the meeting Mr. DeFoe advised DSI thaf he
had hired Robert Thao to promote his events to appeal to an oider Asian clientele. DSE
advised Mr. DeFoe that he must agree to eight additional conditions before he could
reopen CVub Cancun." In addition to the conditions, at the meeting DSi recommended
to Mr. DeFoe that he falk to a noise specialist.'
8 Test. of Kurt Just, R. DeFoe and C. Rozek.
9 Ex. 9.
t0 Test. of P. Cadson and Kerry AnFrim, Ex. 2-1.
" fd., test. of R. DeFoe.
' Ex. 13.
" Ex. 2-1.
t4 Ex. 4; test, of C. Rozek.
15 Test, of C. Rozek.
09-g/ 3
12. Also at the December 23, 2008, meeting, DSI suggested that Mr. DeFoe
meet with the District 6 Planning Council prior to reopening.�
13. District 6 Planning Council (Planning Councii) is essen6alfy a large "b(ock
dub" covering the area of the C'�iy South of Larpenteur Avenue, east ofi Dale Street,
west of Highway 35E, and north of the Burlington-Northern Railroad tracks that run
adjacent to Pierce-Butler Route and Pennsyivania Avenue. The Planning Council has a
forma! relationship with tfie City."
14. The PEanning Council has a Board of Directors and a Land Use Task
Force (LUTF). Ms. Carlson was a member of both the Board and LUTF prior to 2009.
The Board meets on the first Tuesday of each month and the LUTF meets on the fourth
Tuesday of each month.
Emplemer€tation of Directional Sass and Sound Absorption Measures
15. In order to comply with condition number one, prior to reopening Club
Cancun Mr. DeFoe took the foliowing steps, sound absorption measures and noise
controls:
a. tiired the sound mitigation expert Don Rice (who "does sound" for Lifetime
Fitness and churches and nightclubs a{( around the Twin Cities area} and
followed all of his recommendations; and
b. Removed the four large, freestanding bass speakers that had been in the four
corners of the roorr� that encompasses the dance floor area; and
c. Replaced the four (arge speakers with two smaller speakers that are
approximately one-haif the size of the remowed speakers; and
d. Buiit the two small bass speakers into the stage, facing east towards the back
of Club Cancun; and
e. Filled in the entire stage behind the iwo bass speakers with sand; and
f. Moved the tv✓o hanging upper and mid-range speakers from the west comers
of the esfablishment approximately 20 feet east and lower, closer fo the
dance floor with reduction of the power to those speakers; and
g. Operated ali saund at lower power leve(s than the previous owner, and
h. Altowed no bands or musicians to utilize drums when performing; and
i. Had Giilund Consfruction rebuild the South wall of Club Cancun with
soundproof channels; and
' ld., test. of R. De�oe.
t7 Test. of Kerry Anfrim.
�a Id.
!�
a9-�13
Had Giilund Cons#ruction rebuiid the west wall of Club Cancun w'sth
soundproof channe4s.
16. Mr. DeFoe called Kerry Antrim, Executive Director and Community
Organizer for the Planning Council, and was invited to attend the Board meeting on
January 5, 20092 Mr. DeFoe attended the Planning Councii Board meeting on the 5"',
announced his intenfion #o reopen Ciub Cancun soon and invited all in attendance to
visit Club Cancun Z Neither Ms. Antrim nor Ms. Carlson has been to Club Cancun
since its reopening �
17. Mr. DeFoe invited DSf licensing personne! to come visit Ciub Cancun. As
of the date of fhe hearing, no one from DSI has visited Club Cancun for any purpose 23
18. At the Planning Council Board meeting on January 5, 2009, Mr. DeFoe
and Ms. Carfson exchanged celi phone numbers and agreed to keep in close touch
regarding any noise issues with Ctub Cancun?' Mc DeFoe is sincere about addressing
any noise issues concerning Club Cancun and being a good neighbor to the
surrounding neighborhood 25
19. On or about January 16 or 17, 2009, Mr. DeFoe reopened Club Cancun 26
20. City police officers roufinely conduct walk-throughs of Ciub Cancun and
did so on: January 17, 18, 24, and 25, 2009; February 1, 6, 7, 8, and 22, 2009; March 1,
6, and 8, 2009; April 4, and 17, 2009. Officer Yang conducted some or ail of #he walk-
througns and was instructed by Sergean# Campbeii to keep a ciase eye o� Club
Cancun.
21. On January 26, 2009, Ms. Anfrim had e-rnail communicafions with Jami
Olsan, the manager of McCarron's Village Apartments, and asked har wMefher or not
the noise from Ciub Cancun had impraved. She said ii had not�
22. At some time before February 14, 2009, Ms. Antrim had a conversation
with a Debra Staydohar about whether the noise from Club Cancun had improved. She
said it had not. She did not communicate this comptaint to Mr. DeFoe or anyone at
Ciub Cancun 2
' Exs, 10, 11, 12; tesL of R. DeFce and Kurt Jus[.
24 Id., test. of R. DeFoe.
2� Id.
22 Test. of Kerry Antrim and P Cadson.
23 Test. of R. DeFoe and G. Rozek.
24 Test. ofi P. Cadson and R. DeFoe.
� Id.
ze /d.
27 Ex_ 8, tesi, of F. Yang.
28 Test. of K. Antrim.
zs �d
Dq-�i3
23. The onty comptaint about Club Cancun fhat Nis. Antrim received regarding
February 14, 2009, (other than from Ms. Carlson), was from Ms. Olson, who stated that
there were so many cars trying to park in the parking lat tha# i# loaked like a parade, and
thaf bottles had been dumped af different fimes. Ms. Olson did not complaint about any
noise firom Club Cancun 3
24. In fhe Ciiy, from fhe hours of 7 a.m. - 10 p.m. any sound level cannot
exceed fi5 decibels at 100 feet from the sound's source, which is comparabie to sound
in a business office. Fram the haurs ofi 10 p.m. - 7 a.m. ihe sound level cannof exceed
85 decibels at 100 feet, which is comparable to conversationai speech 3
Carlson Complaints Regarding Bass Attributed to Club Cancun
25. Before and during sound checks at Club Cancun, Mr. DeFoe wouid call or
#ext Ms. Carison. Mr. DeFoe seemed genuinely concemed about sound mitigation at
Ciub Cancun 32
26. Ms. Carlson called or texted Mr. DeFoe many times between the
reopening of Ciub Cancun and January 24, 2009, to compiain abouf bass. She toid
him not to listen just outside in the Club Cancun parking lot because the bass was
louder at her house than it was immediately outside the club �
27. Mr. deFoe was unable to verify Ms. Carison's complaints. He also sat in a
City police cruiser in front of the Carlson residence, with a police officer unsuccessfully
trying to get any sound 4o register on a decibei meter.�
28. After Ms. Carlson's repeated compiaints to Mr. DeFoe, Club Cancun
removed the two smafler bass speakers thaf had been installed into the stage and
eepfaced them with even smafler speakers 3s
29. In addition to the sound mitEgation measures outlined above, in response
to Ms. Garison's complaints, Mr. DsFoe:
a. Filled a8 basement and the south first floor windows with soundproof
insutation; and
so Id.
3t City wehsite:
htto:/l74.125.95.1321searc[�?p=cache:00 amqqsDScJ:www.ci.stoaul.mn.us/index.asp%3FNID%3D2000+
293+�t.+oaul+leaislative+code&cd=2$hl=en8ct=cl nk&al=us
Test. oP P. Cartson.
a' /d.
34 Test. af R. DeFoe
� !d.
3e Test. of K. Jusf and R. DeFoe.
0
pq-�13
b. Terminated ingress and egress access to Ciub Cancun from the front (west)
door so that no noise would escape to the west and covered thaf daor with
sound iasulation.
30. After tooking for and plugging every possible gap and hole that could be
located at Club Cancun, Mr. DeFoe asked the sound expert Don Rice if there was
anyfhing more that could be done to further mitigate the music at Club Cancun.
Mr. Rice totd him nothing more could be done to fix the probiem.
31. All of the sound mitigation measures taken at Club Cancun have resulted
in expenditures in excess of $10,000.00.
32. After all sound mitiga#ion measures had been taken, the Asian musicians
accused Mr. DeFoe of being racist and that he did not tike their music.
33. On February 6, 2009, Mr. DeFoe signed his agreement to abide by the
eight new conditions and his attorney e-mailed the document to DSI and the City
Attomey."
34. Mr. De�oe has asked every residential neighbor that has come to Ciub
Cancun if they were couid hear or were ever bothered by any music or naise coming
from Club Cancun. �hey a{{ stated that they have heard nothing, inc{uding the neighbor
to fhe north tha# shares a common wali, residents of McCarron's Viilage, and the
residents of the new townhouses immediately Southeast across the alley from the
club az
35. Although Mr. DeFoe has been ex#remely responsive fo her, Ms. Carison
believes the bass music at Club Cancun is exactly the same after the reopening as it
was during the tenure of the prior owner.
36. DSI has had no telephons co�versations, written correspondence or any
other communication with Mr. DeFoe or Club Cancun since it reopened in January
2009 �
37. Since reopening, Mr. DeFoe has directed the Cfub Cancun Security
Manager, Mr. Kurt Just, to walk around the neighborhood three times every ni to
check whether any excessive naise or music can be heard fram Club Cancun." The
only loud music a�d heavy bass he has heard was from cars at the SuperAmerica
station with loud bass stereo systems and from loud parties every weekend at the
a � !d
� Test. oE R. DeFoe.
� id.
4o Jd.
a � Ex. 3.
az /d.
43 Test. ot P. Cadson.
'"� TesY. of C. Rozek
45 Test. af R. De�oe and K. Just.
7
�-g! 3
apartment complex directly across fhe s#reet from the Cadson residence thaf is located
on tfie southeast comer of Wheelock Paricway and Aibemarie Street 4s
38. Every nighf that Club Cancun is open there is a uniformed City police
officer stationed at the SuperAmerica. Mc DeFoe and Mc Just have asked her many
times whether or nat she could hear any toud music coming from Club Cancun. She
sfated thaf she coufd not hear anything coming from Club Cancun 4
39. On Saturday night, January 24, 2009, Ms. Carlson textsd Mr. DeFoe
about loud music. Mr. DeFoe dispatched Mr. Kurt Just, Security Manager for Club
Cancun, to wafk down fo the Carlson residence to determine if music firom the club
could be heard at her residence 4
40. Mr. Just walked down to the Carlson residence and stood in her front yard
and listened for loud music. The only music that couid be heard at that time was from a
loud party in progress at the apartment comp{ex directiy across tfie stree# from the
Carlson residence on Albemarle Street. Mr. Just spoke to Ms. Carison and told her that
the music was coming from #he apartment party. Ms. Carlson was convinced that loud •
bass was coming from C�ub Cancun.
41. A few days prior to February 14, 2Q09, police officers had responded to
noise complaints from Ms. Carison about Club Cancun. Those complaints were
unfounded 5
42. At 1139 p.m. on February 13, 20Q9, a#ter Ms. Carlscn's cemp!aint abaut
noise coming from Club Gancun, the police came to her home and the o�eer was
unable to hear any noise. The police officer logged the complaint as unfounded 53
43. Approximately an hour and a hatf tafer, at 9:00 a.m. on February 14, 2009,
O�cer Yang investigated a noise complaint from Ms. Carison regarding Club Cancun.
The complaint was unfounded �
44. At 8:38 p.m. on February 14, 2009, Officer Yang investigated a noise
complaint from Ms. Carison regarding Club Cancun. The compiainf was unfounded 5'
45. At 19:46 p.m. on February 14, 2009, Officer Yang was dispatched to
investigate a noise complaint from Ms. Carison regarding Club Cancun. Upon arriving
in the east parking lot of Club Cancutt, near the rear door, Officer Yang couid hear loud
as Id.
a7 /d.
°a Test. of P. Carlson and R. DeFoe.
°S Test. of R. DeFoe and K. Just.
$0 Test. of K. Just and P. Carlson.
51 Test. of T. Yang.
SZ Test. of P. Cadson, Ex. S.
53 Ex. &.
sa Id.
� /d.
0
Og-�(3
music and bass coming from inside Club Cancun. The police radio dispatcher told
Ofiicer Yang to immediateiy go talk to Ms. Carison before investigating any further.
46. Officer Yang went to the Carison residence and spoke to Ms. Carlson.
She told him tha# she was unable #o sleep because she cauld hear bass music inside
her house and aut in her driveway. She invited him into #he home and he went in.
kVts. Carison shut ail of the windows and doors and asked Officer Yang if he could hear
the music. O�cer Yang told her thaf he could 5
47. While in the house, o�cer Yang was unabie to determine from which
direction music was coming. it was as likely to have been coming from the Lamplighter
as it was fo have been coming from Club Cancun �
48. Officer Yang did not go to the Lamplighter, the SuperAmerica, or any other
location to aale them out as the alleged source of #he bass complained of by
Ms. Carlson 5 Ms. Carlson has nof walked to the l�ampiighter to determine ff any bass
music comes from that establishment
49. Ms. Carlson asked Officer Yang to return to Club Cancun and speak with
Mr. DeFoe. Officer Yang retumed to Club Cancun and advised Mr. DeFoe about
Ms. Carison's complaint. Mr. DeFoe sfa#ed fhat he was aware of the sifuation with
Ms. Carlson and would address the probiem 6'
50. Officer Yang, in a conversation with Mr. Just, lowered and shook his head
and stated, "She's nuts. We're sick of going over #here and I'ii taik to my Sergeant
about nof writing up a report."
51. Officer Yang was ordered to write up a report by Sergeant Campbell s3
52. In a later conversation between Officer Yang and Mr. Just, Officer Yang
told him that the police were tired of dealing with Ms. Cadsort and going over to her
house.
53. tn March 2009, Ms. Antrim received a noise complainf about Ciub Cancun
from Raymond Davis, 900 Califomia Avenue. She did not communicate this complaint
io Mr. DeFoe or anyone at Club Cancun �
� Test. of T. Yang.
5 ' /d.; Ex. 1-r1; test. of P. Carisor
� Test. of T. Yang.
� Test. of T. Yang.
80 Tesf. of P. Carlson.
s ' /d., Ex. 1-3, test. of R. DeFoe.
sZ Test. of K. Just.
s ' Test. of T. Yang.
�" Test. of K. Just.
s$ Test. of K. Antrim.
F7
D�-81�
Procedural Findings
54. �n determining that the
February'14, 2009, DSI considered
1d:00 p.m., that the music was alieged
approximately 500 feet from fhe Car(so
properties near Ciub Cancun s6
music from Club Cancun was too laud on
the fact that the compiaint occurred after
to be relativety constant, that Ciub Cancun is
n residence, and that there are other residential
55. In making its determination of a noise viotation by Club Cancun, DSi did
not give consideration to #he fact that Club Cancun and its immediate surrounding area
is a high traffic commerciaf area with many automobites containing extraordinarify {oud
bass in their s#ereo systems. It did not consider the number of peaple actually affected
by the music from Club Cancun. DSI did not test or consider the sound peak pressure
levei of the alleged noise, in comparison to the level of ambient noise �'
58. RSl rare(y takes adverse action based on a single complaint. In this case,
DSI chose to take action based on the compiaint of Ms. Carlson. The oniy �oise
complaint about Club Cancun is from Ms. Carlson.�
57. Christine Rozek, the Deputy Directar of DSi, routinely reviews police
reports for Iicertsing impficafions. Ms. Rozek reviewed the repart submitted by Officer
Yang cancerning his visit to the Carison residence on February 14, 2009.
58. Rfter reviewing the police report and consulting with the City Attomey,
Ms. Rozek recommended a fine ot �1,QOO.OQ.
59. On February 24, 2008, the City of St. Paul sent a Idotice of Violation letter
to �icensee, alieging a violatian of license condition one and a violafion of Sf. Paui
LegisVafive Code § 293.02."
60. On March 24, 2009, Licensee, through its attorney, requested a hearing in
connection with the a8eged Februaty 14, 2Qd, viotations 72
61. On Aprii 1, 2009, the City issued a Notice of Administrative Hearing to the
Licensee to be held on May �, 2009, for the aileged licensing violations.
Based on these Findings of Fact, the Administrative �aw .ludge makes the
fotlowing:
� Test. of C. Rozek.
e� �d.
� /d.
69 !d.
70 �(�.� �XS.2-�� r J-�.
77 EX. r J.
72 �X. 6.
73 EX. 6.
10
09��1
G4NCLUSIONS
1. This matFer is properiy before fhe City and the ALJ pursuant to St. Paui
tegis4ative Code §§ 310.05, 310.06 and 324.11.
2. The City compfied with ali requirements of regulation and gave proper and
timely notice to the Licensee.
3. The City has not proven by a preponderance of the evidence that Club
Cancun violated condition number o�e of its liquor Iicense.
4. The relevant porfions of Chapter 293 of the St. Paul Legislative Code
provide as follows:
Sec. 293.01. Definitions.
As used in this chapter, the foliowing terms shaii have the
meanings ascribed to them in this section.
(1) PCA definitions adopted. Pursuant to Minnesota Statutes, Section
479.62, the deftnitions contained in the Minnesota Poilution Controt
Agency Air Quatity Dtvision Noise Pollution Contro4 Rutes, Section
7030.0020, ars hereby adopted by reference.
j4) Department. The city department of safefy and inspections.
{6) Sound levef (or noise level). The A-weighted sound pressure level,
expressed in dBA, obtained by the use of a sound levei meter having
characteristics as specified in the ANSI Standard S1.4-�983.
Sec. 293.02. Noise as a pubiic nuisance.
(a} Generally.
(1) it shall be unlawFul for any person to make, continue, permif or cause
to he made, coniinued or permitted within the city, any loud, disturbing or
excessive noise which would be fikely to cause significanf discomfort or
annoyance to a reasonab(e person of ordinary sensitivities in the area.
(2) The characteristics and condifions which shall be considered in
determining whethar a noise is loud, disfurbing or excessive for tfie
purposes of paragraph (a) of this section, shall include, without limitation,
tne following:
41
D�'���
a. The time of day or nighf when the noise occurs.
b. The duration of the noise.
c. The proximity of the noise to a sleeping faciiity and/or a
residential area.
d. The land use, nature and zoning of the arsa from which the noise
emanates and fhe area where it is perceived.
e. The number of peopie and their activities that are affected or are
likely to be affiected by the noise.
f. The sound peak pressure level of the noise, in comparison to the
levef of ambient noise.
{d) Amplified sound. IE shall be a violation of this section to play, operate or
permif the playing, use or operation of any radio, tape player, disc player,
loud speaker or other electronic device used for the ampiifica#ion of sound,
unless otherwise permitted by law, located inside or outside, fhe sound of
which carries to points of habitation or adjacent properties, an@ is audible
above the levet of conversational speech at a disfance of fi#ty (50) fieet or
more from the point of origin of the ampliFed sound.
(fi� Penaities.
(1) A violation of any section of this chapter is a misdemeanor, and
a sentence of not more than ninety (90} days in jail, or a fine of not more
than one thousand dollars ($3,000.00), or both, may be imposed.
a. Each day a vialation of this ordinance is committed or perrnitted
to continue shall constitute a separate offense and may be
punished separately.
Sec. 293.07. Noise source limitations.
(a} No person shail operate or cause to be operated on any property or
properties any saurce of noise or sound in such manner as to create a
sound levei autdoors which exceeds the limits set forth for the receiving
fsnd use classification in Table 1 6elow when measured at the point of
human activity which is nearest the noise source.
i�►.
D�1��6i 3
Tab�e 1. Sound Level Restrictions for Receiving Land Use Classifications
As Determined by the Location of the Receiver
TABLE INSET:
Sec.293.Q8. Administration.
(a) Responsibility of enforcement. The primary responsibility of enforcing
the provisions of sections 293.02 through 293.08 shall be with the police
deparEmen#. The primary responsilaili#y of enforcing the provisions of
section 293.09 shall be with the department.
(b) Noise impact statements. Any city department or agency may
require a noise impact statement in association with any change in zoning
classifcation, in planning of a structure, or in any operation, process,
installa#ian or alteration which may be considered as a po#ential noise
source or in reviewing a request for a variance under this chap#er.
(c) Performances of department. 7he department shall also perform
the foI(owing:
exist.
(1 } Prepare for city councii approva( and keep on file guideEines
estabEishing the test procedures and instrumentation to be utilized.
(2) Conduct inspections as required to dstermine whether violations
(3) Review aA variance requests and make recommendations fo the
city council. i"here is hereby estabiished within the department a
dedicated activity to which all receipts and dis6ursemenfs for naise
level variance requests wilf be recorded.
93
0��813
(4} issue orders for abatemerrt of noises which constifute a
violation.
(5) Conduct such reseasch, monitoring and ather studies relatad to
sound as are necessary or usefu( in enforcing this chapter.
b. fn making its Betermination of a noise viofation by Club Cancun, DSI did
not give consideration to the )and use, nature and zoning of the immedia#e area around
Club Cancun. it did not consider the number of people actually affecfed by the music
from Ciub Cancun. DSI did not tes# or consider the sound peak pressure Ievel of tfie
alleged noise, in comparison to fhe level of ambient naise.
6. In making its determination of a noise violation by Club Cancun, DSI did
not prove by a preponderance of the evidence that, on February 13 or. 14, 2009, Ciub
Cancun made, continued, permitted os caused to be made, continued or permitted
within the city, any loud, disturbing or excessive noise which would be likely to cause
significant discomfort or annoyance fo a reasonabie person of ordinary sensitivities in
the area.
7. The City has not proven by a preponderance of the evidence that Club
Cancun violated any portion of Chapter 293 of the St. Paul Legis(ative Code.
8. The ALJ adopts as Conclusions any Findings thaf are more appropriately
described as Conclusions, and as Findings any Conc(usions thaf are more appropriateiy
descri�ed as Findings.
8ased upon these Conclusions, and for the reasons expEained in the
accompanying Memorandum, the Administrative Law Judge rrtakes the following:
RECOMMENDATION
8ased upon these Conctusions, #he Administrative Law Judge respectfuViy
recommends that the St. Paui City Council:
1) QISMISS the atlegaiion that the Licensee violated condition number one of
fhe l.icensee's licenses; and
2) DISMlSS the allegation that the Licensee violated Chapter 293 of #he
St. Paul Legislative Cade.
Dated: June 22, 20fl9 '!��'���
M. Kevin Snelt
Administrative Law Judge
Repo�ted: Digitally Recorded
14
0� ��513
N073CE
This reporf is a recommendatian, not a finai decision. The St. Paul City Council
wi(i make fhe final decision after reviewing the record and may adopt, reject or modify
the Findings of Fact, Conclusions and Recommendation contained herein. Pursuant to
Section 310.05 of the Sf. Paui Legisiative Code, the City Council's final decision shalf
not be made until fhis Report has been made availabie #o fhe parties fo the proceeding
and the Licensee has been provided an opporEunity ta psesent aral or writfen asguments
alleging error on the part of the Administrative Law Judge in the application of the law or
the interpretation of the facts and an opportunity to present argument relating to any
recommended adverse action. The Licensee and any intsrested parties shoufd contact
Shari Moore, Saint Paul City Cierk, 290 City Hail, 15 West Ke(logg Boulevard, St. Paut,
MN 55102, to ascertain the procedure for presenting argument.
MEMORANQUM
Gondition Number Qne of ticensee's Licenses
There is no reliable evidence in the record to provide a basis to conclude that
Club Cancun violated condition number one of its tiquor 4icense. Condition number one
provides specifically:
Licensee wifl employ directional bass, sound absorption measuras, and
other noise controls to minimize the noise from inside #he esfablishment
#rom disturbing the neighborhood. This condition witl be reviewed on or
after June 30, 2008, and is subj�ect to change if the measures empioyed
by the licensee are not effective. 4
The Administrative Law Judge notes ihat ihis condition, by its terms, does not
require those measurss and sound controls to eliminate ail noise or be completely
successfut. it requires these efforts to "minimize the noise from inside the
establishment from distur6ing the neighborhood:' The weight of fhe evidence suggests
that the "neighborhood" has not been disturbed by noise from Club Cancun. Further
noted is the fact that the City, prior fo the hearing, had no idea what steps, if any, the
Licensee has faken to comply wiFh this condition. Finally, no review has been done by
the City to determine whether or not the measures taken by the Licensee have been
effective. The evidence in the record suggests that those measures have been effective
in minimizing fhe bass and music from inside Club Cancun.
The reliabie evidence in #he record of this case establishes try clear and
convincing evidence that the Licensee took extensive, expensive measures to:
implemen# directio�aE bass; implement sound absorption measures throughou# the
establishment, iacfuding the rebuilding of the South and Wesf i�ferior walls, closicrg of#
and insulating the Wesf door thaf faces Rice Street; covering virtually a!I of the
estabiishment's windows with soundproofing insulation; not allow any band or musician
74 Factual Finding 7.
15
�9�Si�
to utilize drums; and impierrtent sign�cantly Iower amptification of the music. The last
item was done to the exten# that the Asian musicians perforrrting at Ciub Cancun
accused Mr. DeFoe of being a racist. Finally, after considering all of the rrteasurss
taken by the Licensee, the sound expert concluded that ti�ere is nathing more that the
Licensee can do to further minimize fhe sound level of the music at Club Cancun uniess
tfiere is none.
Allegations of Excessive Bass Emana#ing from Club Cancun
The police department and Department of Safety and Inspections failed ta follow
the minimum sequirements of secUan 293A2 (a)(2} af tha St. Pa�l Legis4aiive Code
containing the factors that are required to be considered in determining whether or not a
noise violation has been established. Neither fhe police department nor DSI u#ilized the
provisions of sections 293.01 and 293.07, which provisions confain objective, scientific
procedures to determine whether or not a noise source is excessive. The City did not
infroduce any evidence to establish that music emanating from Club Cancun was above
55 decibels, the IeveE of conversafional speech, beyond fifty feef from Club Cancun
pursuant to secfson 293.d2 (d) of the City noise regulation.
DSI ralied entirely on the subjective terms of section 293.02 (a)(1) to establish a
noise ordinance violation:
If shall be unlawfuE for any person to make, cantinue, permit or cause to
be made, contic�ued or permitted within the city, any loud, disturbing or
excessive noise which would be likely to cause significant ciiscomfort or
annoyance to a reasonabie person of ordinary sensifivities in the area.
The evidence in this case es#ablishes that DSE relied entirely on the complaint of a
single individual. ln addition, there is Iittle persuasive or reliable evidence to indicate
that other potential sources of the ofFending bass noise were ruled ouf.
Ril of fhe sound mi6gation measures employed by Club Cancun directed ali
music to fhe East, directly towards the aliey and the adjacent apartments, away from
174 Wheelock Parkway.
Officer Yang testifred that he cou{d hear music coming from C1ub Cancun when
he arrived at the east door to the estabiishment. However, there is no evidence in the
record to esfablish whether or not fhe driver's window or door to his police vehicle were
open or shui. There is no evidence in the record to estabiish whether or no# the door to
Club Cancun was closed or was opened when Of#icer Yang was present in the parking
lot. There is no reliable evidence in the �ecord to estahlish whether or not the music
Officer Yang heard could be heard above normal conversation. It is reasonable fo
assume that some music will be heard at the enfrance #o any estab4ishment that
provides music. The fact that some music can be heard immediately outside of the
entrance to Ciub Cancun is insufficient to es#ab(ish either that it is disturbing the
neighborhoad or can be heard above normai conve€sation.
m
o�-S� �
O�cer Yang's testimony was equivocal. In his tesGmany he was ab(e ta
remember his conversations with Ms. Carlson on February 14, 2009, yet couEd not
"recal!" his later conversations with Mr. Jusf and Mr. DeFoe on fhe same date. He could
not recail whether or not he was the poitce officer who responded to the earlier,
unfounded compiaints by Ms. Carlson. Furthermore, he did not deny ihe statements
atfributed to him by Mr. Just and Mr. DeFoe — sfatements that tend #o contradicf the
testimony he gave at the hearing. Finally, atthough t�e mus'sc aAeged4y heard rvas as
likely to have been coming from the SuperAmerica or the Lamplighter as Club Cancun,
Officer Yang did not go to the Lampiighter to rule if out as a source.
On balance, the testimony of Mr. QeFoe and Mr. Just is more credible and
reliable than the testimony of Officer Yang. Viewed in the light of all of the other
evidence in the record of this mai#er, it is more fikely than not that Oificer Yang was
being candid and truthful in his statements to Mr. Just, and his frue viaw is that
Ms. Carison's latest noise compiaint was unfounded, as were her previous complaints.
The only reason he wrote up a report was because he was ordered to do so by his
superior o�cer.
1n addition, it would be reasonabty expected that, if excessive noise was
emanating from Club Cancun, there wouid be some ver'rfied compEaints from neighbors
other fhan Ms. Carlson, par�icularly from someone living close to the estabiishment.
There were none at ai. The fact that the earlier compiaint from her on the night of
February 14, 2009, and one #rom the previous night, were investigated by the police and
determined to 6e unfounded, persuasively suggests that the bass she hears either did
not emanate from Club Cancun or was of such a modest levei that a reasonable person
of ordinary sensibilities would not be disturbed.
For the foregoing reasons, the ALJ finds that there is insufficient evidence to
conclude thet Ciub Cancun violated Chapter 293 of the St. Pau! Legislative Code.
Conclusion
Because the City €aiied to prove by a preponderance of the evidence that
[.icensee violated either condition number one of its licenses or fhe Chapter 293 noise
regulafions, the Administrative Law Judge recommends that the Ciiy dismiss bath
alleged violations.
M. K. S.
17