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96-969�; � ; � -, � ; ; � M�E' N � �' t� '� a� �.�e ? F� 1 r ` �� `� /RESOLUTIO�� t �� Council File # �-�q Green Sheet # � Presented 6v ; 7� Referred To \ � Committee Date � `\ .10' 2 1 BE IT RESOL D, that the Council of the City of Saint Paul hereby certifies and approves the August 6, 2 1996 decision of the Legislative Hearing Officer: 3 Pro�ert,L�pealed 4 843 Rice Street 5 Decision: Deny appeal. 6 740 N. Snelling Avenue 7 Decision: Deny appeal. 8 1075 Hudson Road 9 Decision: Deny appeal. ��'�evvsa '+o �-�a� s�a�: v e.. 11iqV ��O�C.QtCR✓ Aonellant Linda Spencer Kandi-Rain, Inc. L & S, Inc. 10 1573 Selby Avenue, Apt. 246 Snelling Avenue Property Partnership 11 Decision: Grant variance conditioned on only the current tenant's occupancy of unit. 12 1913 Carroll Avenue Curtis Decker 13 Decision: Deny they appeal, with the exception of an extension for 90 days to complete repairs to the stairway 14 and replacement of windows and an eatension to August 6, 1997 for replacement of the roof. 15 266 E. Seventh Street Marion Rose/Pioneer Co. 16 Decision: Laid over to September 17, 1996 Properiy Code Enforcement meeting. 17 415 Sherburne Avenue (lower)� . Jeffrey Cody 18 Decision: Deny appeal. �-Q � d O V e Y' '� Aw 199G 19 1748 Sheridan Avenue � L �` o vc r-1-0 20 Decision: Deny appeal. S� y' �Q9 �v 21 22 23 24 662 Canton Street Decision: Grant appeal conditioned on re-occupancy within 90 days. 421 S. Wabasha Street Decision: Grant appeal conditioned on re-occupancy within 60 days. Kelly and Dana Mattingly William Nichols Allen Hartman 25 26 Dale Street, #107 Kingwood Management 26 Decision: Fire Prevention withdrew orders. i!',�A ; �. .-�. ; . : . � . _ 1 2 1075 Sherburne Avenue Decision: Crrant appeal conditioned on re-occupancy within 30 days. 3 p. zo� 2 �l G-��9 Jean Noyes FURTF�R RESOLVED, that tlus action shall become effective immediately upon approval of the Mayor. Requested by Department oE by Council Secretaty � Approved by Mayor: Date � � Form Approved by City Attomey � Approved by Mayor for Submission to Council Adopted by Council: Date 9�-9`q DEPAATMENTIOFFICFICDUNCII DATE MRIATED p crrY courrcn. 8/6/96 GREEN SNEE N_ 3 6 4 3 4 MRIAVDATE IN(rIAUDATE CONTACT PEfi50N 8 PHONE Q OEPARTMENT DIRE � CRY COUNQL Gerry StratLman 266-8575 pSSIGN � CIT' ATfORNEV O CT' CLERK MUST BE ON COUNCIL AGENOA BY (DAT� NUYBER FOR � BUDGET DIRECTOR � FIN. 8 MGi SERVICES DIR. pOUTING August l4, 1996 0�� � uaroa �oa nssisrnr.m 0 TOTAL # OF SIGNATUHE PAGES (CLIP ALL LOCATIONS FOR SIGNATURE) ACfION RE�UESTED: Approving the decision of the Legislative Hearing Officei on Properry Enforcement Appeals for ihe August 6, 1996 meeting. RECOMMENDA71oNS: Approve (A� a Reject (R) pERSONAL SERVECE CONTRACTS MIiST ANSWER THE FOLLOWING �UESTIONS: _ FLANNINCa CAMMISSION _ CIVIL SERVICE COMMISSION �� Has this persoMirtn ever worked under a conVact for this department? _ CIBCOMMITTEE _ YES 'NO _&TAFF 2. Has this personllirm ever been a city employee? — YES NO _ o15TAICT CAURT _ 3. Does this person/firm possess a skill not normally possessed by any curreM ciry employee? SUPPORTS WHICH COUNCIL OBJEC7YVE? YES NO Explain all yes answers on seperate sheet antl attach to green sheet INITIATING PROBLEM, ISSUE, OPP�RTUNITV (Who, WPat, When, Where, Why): ADVANTAGES IFAPPROVED: DISAOVANTAGES IF APPROVED. ������ ������ �t�� i ;!� i� t� � �996 D�SA�VANTAGES IF NOTAPPROVED: TOTAL AMOUN70FTRANSACTION $ COST/REVENUE BUDGETED (CIFCLE ON6) YES NO FUNDIIdG SOURCE ACTIVITY NUMBEFi FINANCIAL INFOflMATION: (EXPLAIN) , $. MARK vA[JGHT � P � � � 1 Attoraev At Law Suice 700 Six West Fifrh Saeet Sainc Paul, Minnesora 55102 (612)297-6400 FAX (612) 224-8328 August 14, 1996 The Honorable David Thune, President, The Honorable Jerry Blakey, The Honorable, Dan Bostrom, The Honorable Dino Guerin, The Honorable Mike Harris, The Honorable Roberta Megard, and The Honorable Janice Rettman, Members of the Saint Paul City Council Third Floor City Hall 15 west xellogg Boulevard Saint Paul, Minnesota 55102 RE: Revocation of Certificate of Occupancy Proceedings involving 740 North Snelling Avenue, 843 Rice Street, and 1075 Hudson Road Dear City Council Members: I represent the following individuals or entities who are aE£ected by the above referenced proceedings: 740 North Snelling Avenue LeNOre A. Turner Kandi Rain, Inc. 843 Rice Street 1075 Hudson Road Linda May Spencer L & S, Inc. The Division of Fire Prevention, Department of Fire and Safety Services has with respect to each of the three properties attempted to revoke the respective certificates of occupancy under Saint Paul Legislative Code (SPLC) §33.02 (d) which is reproduced in its entirety and appended to this letter. The matter appears befoze the City Council as a result o£ the appeal of the attempted revocation by each of the named parties. Each of the attempted revocations is flawed, both on constitutional and 1ega1 grounds. While the following is not intended as legal brief, it does discuss, first in general terms, then in more speci£ic terms relating to each property, each o£ the bases for the contesting of the revocations. a6 �s5 9�-9� y DEFECTIVE NOTICE OF REt70CATION Each of the notices issued in these cases is dePective. None of the parties, by appearing before the Council, waives any right to contest those defects in a judicial £orum, should the City elect to proceed, despite notice of the de£ects. The attempted revocation at 740 North Snelling Corporation was by means o£ a notice over the signature o£ Phillip Owens, Inspector, dated July 3, 1996, but which was, on in£ormation and belief, actually delivered to the premises on July 2, 1996, addressed to 740 North Snelling Corporation. No notice was served or mailed, nor was service or mailing of a notice attempted, on either LeNOre A. Turner or Kandi Rain, Inc. The tenancy of 740 North Snelling Corporation at 740 North Snelling Avenue was terminated on November 1, 1995, and the premises was leased as of that date to Kandi Rain, Inc., which is a Minnesota corporation. LeNOre A. Turner was and is the £ee owner o£ the property at 740 North Snelling Avenue. The City had actual knowledge o£ termination of the tenancy of 740 North Snelling Corporation no later than December 6, 1995, but virtue o£ service on that date upon Virginia Palmer, Assistant City Attorney, of an Answer and Counterclaim of LeNore A. Turner, pleading those facts with specificity in a pending case in Ramsey County District Court, entitled: Citv of Saint Paul vs. LeNOre A. Turner, et al.. Court File No. C6-95-9723. Despite having actual knowledge of the identity of both the fee owner and the tenant with current possessory interest in the property at 74� North Snelling Avenue, the City addressed no notice to either party and instead directed the revocation notice to a party which had no interest whatsoever in the premises, possessory.or ownership, legal or equitable, and had not for a period of over seven months be£ore the notice. The attempted revocation at 843 Rice Street was by means of a notice over the signature o£ Phillip Owens, Inspector, dated June 27, 1996, but which was, on information and belief, actually delivered to the premises on July 2, 1996, address to Thomas J. Bieir, 78 lOth St. E., #2904, Saint Paul, Minnesota 55101. No notice was served or mailed, nor was service or mailing of a notice attempted on Linda May Spencer. Ms. SpenCer is the £ee owner o£ an undivided one half interest in the property and has current possessory rights to her interest in the property. The City had actual knowledge o£ her interest in the property by virtue o£ an Answer and Counterclaim of Linda May Spencer in a pending Ramsey County District Court case entitled: Citv of Saint Paul vs. Linda Mav Svencer, et al. Despite having actual knowledge o£ the interest of Ms. Spencer in the property, the City made no ef£ort to give her notice of this proceeding. The attemp�Ced revocation at 1075 Hudson Road was by means of a notice over the signature of Phillip Owens, Inspector, dated July 19, 1996, and, on information and belie£, delivered to 1075 Hudson Road that date, addressed to R. B. Holden, et al., 1532 Dora Lane, 2 9�-9�q Saint Paul, Minnesota 55106-6809. No notice was served or mailed, nor was service or mailing o£ a notice attempted on L& S, Inc. L & S, Inc. is the current lessee o£ the property and has a current possessory interest in the premises. The City had actual knowledge o£ the lease between Roger and Arlene Holden and L& S, Inc., dated May 10, 1996, by virtue of the response o£ Roger and Arlene Holden to a Request for Production of Documents served on them by the City, which response was sexved on Virginia Palmer, Assistant City Attorney, on 3uly 10, 1996 in a pending Ramsey County Bistrict Court case entitled: Citv of Saint Paul vs. The �vorium, et al_ Court File No. C8-95-1476. POSSIBLE STATE LAW PREEMPTION SPLC §33.02(d) references and uses as a condition precedent £or the invocation of the ordinance procedure the provisions of Minnesota Statutes §617.81, subdivision (2), which is commonly known as the public nuisance statute. That statutory provision is appended hereto. In fact, the state statutory provision contains its own method for en£orcement and does not contain an explicit grant to the City of Saint Paul of authority to enforce the law in any other manner than that laid out with the statute. As a matter of record, the City was filed legal action under Minnesota Statutes §617, subdivision (2) in Ramsey County District Court against all three of the properties in question here and each of those three lawsuits is currently pending. Arguably, the enforcement proceeding under the statute preempts any attempt by the City to use its own ordinances to enforce provisipns of state law. SPLC §33.02(d) VIOLATES BOTH SUBSTANTIVE AND PROCEDURAL DUE PROCESS GUARANTEES OF THE UNITED STATES AND MINNESOTA CONiSTITUTIONS. Each of the appellants in this matter is entitled, under the Constitutions o£ the United States o£ America to both procedural and substantive due process o£ law. In the instant case, that translates to a requirement that the City must furnish both procedural and substantive due process to the appellants be£ore it can act to revoke the certi£icates o£ occupancy. The right to use of the affected properties pursuant to a certificate occupancy is clearly a property right which triggers due process reguirements. One of the substantive due process constitutional guarantees is that a given provisionss of law, such as SPLC §33.02(d), may not be so vague that the reasonable person would find it impossible to interpret and to ascertain what manner of behavior is proscribed by the law. SPLC §33.02(d) utterly £ails the vagueness test and is on its £ace unconstitutional. The very wording of the ordinance allowing its application in those case were the £ire marshal determines that certain behavior "m�" violate the state public 3 9�-9�9 nuisanCe statute on its face makes it impossible for a party to determine what behavior is prohibited. The ordinance doesn't say the behavior must or shall violate the state statute. Because it does not, SPLC §33.02(d) is vague and unconstitutional on its £ace. Further, a second substantive due process guarantee arises invalidating laws which are overbroad in there application, that prohibit conduct £ar in excess of that which is necessary to accomplish the goal of the law. This defeCt clearly also exists with this ordinance and also £lows £rom the use of the verb "m�". The ordinance does not subject to sanction that behavior which does violate the public nuisance statutes, but also that behavior which mav violate. The behavior also mav not violate the public nuisance statute and the City has no legitimate interest in prohibiting such behavior. SPLC §33.02(d) is overbroad and unconstitutional on its face. THE CITY HAS PROVIDED AN INADEOUATE FACTUAL BASIS FOR REVOCATION OF THE CERTIFICATES OF OCCUPANCY. The notice generated over the signature of Phillip Owens in each of these three cases contained only barest o£ conclusions that the statutory condition precedent to the operation of SPLC §33.02(d) had been met. That is, that the provisions o£ Minnesota Statutes §617.81, subdivision (2) had been violated. The state statutory provision require that a number of behevioral incidents take place within a given period. It goes on to state that the proof of each element of the nuisance must be "clear and convincing", a standard in excess o£ the normal civil standard of "by a preponderance of the evidence". My clients submit that the preponderance standard isn't even met in this case. What Mr. Owens has presented in conclusory form for each address is the number of prostitution and disorderly house arrests. He gives no details; no dates; no evidence as to who might have been arrested; and no evidence of disposition of cases which may already have worked their way through the court system. In fact, at the hearing be£ore the Legislative Hearing OfPicer, Mr. Owens admitted that he didn't know anything beyond the number of arrests and had relied on the police £or that information. And since that hearing and despite that fact the lack o£ factual basis was raised by my clients, the City has not supplemented the £acts at all. There really is nothing for my clients to rebut. They can only guess. The fact situation in this case is actually identical to the situation as if an o£ficer of the State of Minnesota appeared at your door, or that of your next door neighbor, with a notice of revocation of your drivers license because you had three maving violation tickets in a year, but then refused to tell you when the violation triggering the tickets occurred, who was driving the vehicle, and how fast the vehicle was going, what the o££ending behavior was, and whether or not the three tickets all flowed from the same behavioral incident. � 9� -yb y The minimal facts presented in this case don't prove the violations by a preponderance of the evidence, let alone by the required clear and convincing evidence. My clients can make this limited challenge to the facts. The state statutory provision dePines the type o£ behavioral incidents in terms o£ "prostitution and prostitution related activity". The statute defines "prostitution and prostitution related activity" in such a way that arrests £or visiting a disorderly house, which are the bulk o£ the claimed arrests, are excluded and are not a basis for adjudging violation o£ the statute. Further, my clients suspect, but do not and cannot know, on the basis of the wholly inadequate facts available to them, that many of the charges have been dropped by the prosecuting authorities or dismissed by the courts. I£ they have been, they clearly don't qualify. And, my clients, suspect, but do not know, that some or all of claimed arrests were created by the Saint Paul Police Department during its illegal seizures o£ one or more o£ the properties. THE APPELLANTS WILL PURSUE THEIR LEGAL REMEDIES IF THE CITY PERSISTS IN THESE MATTERS WITHOUT REMEDYING THE DEFECTS. As many o£ you know, this is not the first time the City has attempted en£orcement actions against these premises. And most of you also know that on previous occasion the City has been rebu££ed in those attempts beCause it failed to follow the law. Whatever the alleged political popularity of these actions, they fall utterly and completely short of the legal and constitutional requirements and when combined with past illegal failed attempts by the City have crossed the line o£ civil actionability. There£ore, my clients intend i£ the City persists in this latest round of illegal actions to pursue their full legal remedies including an action £or damsges against the 42 United States Code §1983 for attempting, under color o£ law, to deprive my clients o£ their property without due process of law and without just compensation. .� Ver truly r {��� ) o � . urs, ,/ �C/L- / L�LC� J S. Mark Vaught Attorney at Law 5 9� -y� y Certi£icate of Occuvancv Anueal Hearinqs Saint Paul Legislative Code §33.02(d) "Revocatioa. The fire marshal may, in writing, suspend or revoke a certificate of occupaacy issued under the provisions of this code whenever the certificate was issued in error, or on the basis of incorrect i.nformation supplied, or when it is determined by the fire marshal that a use of the building or structure or portion thereof may constitute a auisance as described in Minnesota Statutes, Section 617.81, subdivision (2), or is in violatioa of any ordinance or regulation or any provision of the Saint Paul Legislative or Administrative Code." 9�- 96q Minnesota Statutes §617.81, Subd. 2 Subd. 2. Acts constitutiag a nuisance. (a) For pt�*r+oses of section 617.80 to 617.87, a publi nuisaace exists upon proof of two or more separate behavioral incidents of one or more of the following, co�itted within the previous 12 months within the building, or i£ the building contains more than one rental unit: (1) within a singie rental unit; or (2) within two or more rental units leased or controlled by the same person: (1) prostitution or prostitution-related activity cammitted within the building; (2) gambiing or gambling-related activity co�titted within the building; (3) keeping or permitting a disorderly house within the building; (4) unlawful sale, possession, storage, delivery, giving, manufacture, cultivation, or use of controlled substances committed within the building; (5) unlicensed sales of alcoholic beverages commiteed within the building in violatioa of section 340A.401; (6) unlawful sales or gifts of alcoholic beverages by an unlicensed persan co�itted within the building in violation of section 340A.503, subdivision 2, clause {1); or (7) unlawful use or possession of a firearm in violation of section 609.66, subdivisionla, 609.67, or 624.713, committed within the building. (b) Proof of a nuisance exists if each of the elements of the conduct constituting the nuisance is established by clear and convincing evidenae. 9� 9�y Minnesota Statutes § 617.80 Subd. 4. Prostitution. "Prostitution" or "Prostitution- related activity" means conduct that would violate section 609.321 to, 609.324. Subd. 6. Disorderly house. "Disorderly house" has the meaning assigned to it in section 609.33.