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96-984Council Fi1e # `��---� . Green Sheet # �� � T RESOLUTION � CITY OF SAINT PAUL, MINNESOTA Presented By Referred To 1 2 , � 4 5 6 7 8 9 10 11 12 13 14 15 16 17 COmmittee: Date WI the Council of the City of Saint Paul revoked the licenses held by C.L. Hiuze, Inc. d!b!a Chuck's Baz (hereafter Licensee) by resolution on November 29, 1995 (CF 95-1398); and WHEREAS, the Licensee appealed the CounciPs decision to revoke said licenses to the Minnesota Court of Appeals; and WHEREAS, the Council of the City of St. Paul stayed the revocafion during the pendency of the appeal by resolution on December 20, 1995 (CF 95-1454); and WHEREAS, the Minnesota Court of Appeals on July 31, 1996 rendered its opinion, affirming the decision of the City Council to revoke the Licensee's licenses (copy attached). NOW THEREFORE, BE IT RESOLVED, that the stay of revocation is kereby rescinded and the revocation shall take effect upon adoption of this resolution by the Council of the City of Saint Paul and approval by the Mayor of the City of Saint Paui. Requested by Department of: Adopted by Council: Date y � Adoption Certi£ied by Council S cretary By: � ._ �� . �:,_.,,�,�—�-- Approved by Mayor: Date �Z �y By: l� l�V({� By: Form Approved by City Attorney B 8 -1�-9� Approved by Mayor for Submission to Council By: aC- `1�y � C011IICll�'L SSATEITIITIATED GREEN SHEE �° 36364 ` INRIAUDATE INITIAVDATE CONTACT PERSON & PMONE � DEPAPTMENT DIPEC70P a CRY COUNCIL Councilmember Bostrom, 266-8660 ��N �cmanoRNev �cmc�RK MUST BE ON COUNCIL AGENDA BY (DATE) NUYBEFi FOR ❑ BUDGET �IRECTOH � FIN. & MGT. SEflVICES Dlfl, ROIRING E,llgllSt 14, 1996 � �MAYOR(ORASSISTANT) � TOTAL # OF SIGNATURE PAGES (CLIP ALL �OCATONS FOR SIGNATURE) ACT10N REQUESTE�: Rescinding the stay of revocation and revoking the licenses held by C.L. Hinze, Inc., dba Chuck's Bar, per the decision of the Minnesota Court of Appeals. RECOMMENDA710NS: npprove (A) w Rejea (F) pEFiSONAL SERVICE CONTRACTS MUST ANSWER THE FOLLOWING QUESTIONS: _ PLANNING COMMISSION _ CIVIL SERVICE CAMMISSION �� Ha51hiS persONfilm BVEf wofketl undef a COntfaCt fOr ihis departmeM? - _ CIB COMMITfEE YES NO — S,N�F 2. Has this person/firm ever been a city employee? F — VES NO _ DIS7RICT CAUFii _ 3. Does this personttirm possess a skill not normaily possessed by any curtent ciry employee? SUPPOflTS WHICH COUNCIL OBJECTIVE? YES NO Explafn ali yes answers on separate shcet anb ettach to green sheet INITIATING PROBLEM, ISSUE, OPPORTUNIT' (Who, What, When, Where, Why): ADVANTPGESIFAPPROVED: b,e� . � �#6� ��F ��� � � ��� ____,__�� DISADVANTAGES IFAPPFOVED: DISADVANTAGES IF NOT APPROVED� TOTAL AMOUNT OF 7RANSACTfON $ COSTlREVENUE BUOGETEO (CIRCLE ONE) YES NO PUNDI(JG SOURCE ACTIVI7Y NUMBER FINANCIAL INFORMATION� (EXPLAIN) l '� j � .r ° r,/' � � � / ,� 1 /___ ; � � �;� - �. � � . / This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.O8, subd. 3(1994). STATE OF MINNESOTA IN COURT OF APPEALS CS-95-2535 C.L. Hinze, Inc., d!b/a Chuck's Bar, Relator, vs. The City of St. Paul, Respondent. Filed August 6, 1996 Affirmed Kalitowski, Judge St. Paul Ciry Councii File No. 95-1398 °� �- �► �y 7ohn D. Hirte, Thomas J. Norby, Murnane, Conlin, White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for Relator) Timothv E. Marx, St. Paul City Attorney, Janet A. Reiter, Assistant City Attorney, 400 City Hall, 15 West Kellogg Blvd., St. Paul, MN 55102 (for Respondent) Considered and decided by Kalitowski, Presiding Judge, Parker, Judge, and Randall, Judge. ���'�� ��� AUG �5 I996 C ��� ,��! ��a�� � UNPUBLISHED OPINION KALITOWSKI, 3udge ��-��-� Appellant C.L. Hinze, Inc., d/b/a Chuck's Bar, challenges the revocarion of its city licenses, including a liquor license, pursuant to a resolution adopted by the City of St. Paul. We afFirm. FACTS In the 30 months prior to the presenr �cident and resulting revocation, the cit_y twice suspended the liquor license of C.L. Hinze, Inc., including a i-day suspension for selling alcohol to an obviously intoxicated person and a 15-day suspension for refusing to admit police officers following a 911 call from the bar. On April 17, 1995, Charles Hinze, the owner of Chuck's Bar, allegedly assaulted an unruly and intoxicated female patron. Aithough prosecutors never charged Hinze, the city commenced license sanction proceedings. The Administrative Law Judge (ALJ) continued the first hearing due to the patron's failure to appear. The pauon later testified that prior to the first hearing, Hinze's 6'2" and 240-pound friend came to her apartrnent and. for $500, convinced her to sign a"release" petitioning the ALJ to dismiss the licensing matter. Hinze's friend allegedly told the pauon that because she signed the release, she could ignore a subpoena and not testify. The patron was subsequently required to testify. The record at the second hearing revealed that the patron and her husband had sevezal drinks before going to Louie's Bar. The patron was "cut off" at Louie's due to -2- Yc-��y her into�cation and may have been physically removed. The patron and her husband proceeded up the street to Chuck's Bar and purchased beers. The pauon mentioned being "cut off" at Louie's and became unruly. Hinze told the patron she was "cut off." The patron rhen apparently refused to relinquish her drink. Hinze called the patron a vulgar name and the patron responded with an obscene gesture. According to the patron and her husband, Hinze then came at the patron from behind, grabbed her throat with both hands and chek?d her until the patron's husband senarated the two. According to Hinze and his bartender, Hinze never grabbed the patron's neck, but rather used reasonable force to remove her from the bar by placing his hand on her back. A police officer later interviewed the patron and her husband. Although the officer did not observe marks on the patron's neck, he believed she had toid the truth about the incident. Foliowing the hearing, the ALJ died. The parties stipulated to another Ai.J reviewing the record and issu3ng findings and a recommendation. The succeeding ALJ found that Hinze placed "both of his hands around [the patron's] neck, in an attempi to physically remove her from the bar." Based on this incident and the two prior suspensions, the AL3 recommended an i$-day lice�se suspension. The case proceeded to the St. Paul City Council. The city council adopted the ALJ's findings and made additional findings based on the record. The city council, however, did not adopt the ALJ's recommendation. Instead, the city councii revoked the licenses of C.L. Hinze, Inc. by a unanimous vote. The parties agreed to stay revocation pending an outcome on this appeal. -3- � - t `- t�/ DECISION I. C.L. Hinze, Inc. presents two basic arguments challenging the license revocation. First, it contests the factual fmdings and credibility determinations made by the ALJ and the ciry council. Second, it argues the ciry acted arbitrarily and capriciousiy in concluding that license revocation is warranted. Municipal authorities have broad dis�retion in determining the manner in which liquor licenses are issued, regulated, and revoked. Bourbon Bar & Cafe Corp. v. City of St. Paul, 466 N.W.2d 438, 440 (Minn. App. 1991) (citing Sabes v. City of Minneapolis, 265 Minn. 166, 171, 120 N.W.2d 871, 875 (1963)). An appeilate court's review of a municipality's liquor license revocation is limited to whether the city council exercised reasonable discretion, or whether it acted capriciously, arbitrarily, or oppressively. Id. Further, a city council may accept, reject, or modify an ALJ's fmdings, conciusions, and recommendations. BAL, Inc. v. City of St. Paul, 469 N.W.2d 341, 343 (Minn. App. 1991). 1. Findings of Fact C.L. Hinze, Inc. argues that some of the ALJ's findings are inconsistent and erroneous. We disagree. The most important finding by the ALJ was that Hinze "piaced his hands around [the patron's] neck, in an attempt to physically remove her from the bar." While witnesses presented conflicting evidence, there is record support for this finding. Accordingly, the contention of C.L. Hinze, Inc. that the ALJ erred by accepting C� m `�C- ��y some of the patron's testimony and discrediting other portions of her testimony is merifless. See Roy Matson TruckLines, Inc. v. Michelin Tire Corp., 277 N.W.2d 361, 362 (Minn. 1979) (trier of fact is the sole judQe of wimess credibiliry and may accept ali or only part of a witness's testimony). Further, we are not persuaded by the argument that because the deceased AL7 wimessed the hearing the succeeding ALJ's credibility determinations should be accorded less deference. C.L. IIinze, Inc. stipulated to having the second ALJ review the recard and makc findings. The city council incorporated the fmdings of the ALJ and made additional fmdings. C.L. Hinze, Inc. disputes the city council finding that Hinze's actions were violent and occuned against a wlnerably intoxicated patron. This finding, however, is supported by the testunony of the patron and her husband. C.L. Hinze, Inc. also disputes the city council finding that Hinze sought to interfere with the licensing proceeding and dissuade the patron from testifying. This finding is supported by the patron's testimony and the release drafted by Hinze's friend. We conclude the record supports the challenged findings of the ALJ and the city council, and so we uphoid such fmdings. 2. Conclnsions The city council sou?ht sanctions pursuant to three enumerated provisions of the St. Paul Legislative Code, under which the city may take adverse action against a licensee who has: (1) engaged in a pattern of conduct indicating a lack of good character, (2) created a serious danger to public safety or welfare, or (3) engaged in violent actaons or assaults. St. Paul, Minn., Legislative Code §§ 310.06@)(6)(c), 310.06(b)(7), -5- 9 9G -q�P� 310.06(b}(10) (1995). Adverse action includes license suspension. St. Paul, Minn., Legislative Code § 310.01. Here, the city council's fmdings support adverse action under any of the three listed provisions. C.L. Hinze, Inc. contends that even if this court upholds the fmdings of the ALJ and city council, the revocation was arbitrary and capricious. C.L. Hinze, Inc. stresses that the city failed to follow its own presumptive penalty matrix for license violations. See St. Paul, 14!inn., Legislative Code §?G7.2G (b) (1994;. Unde* *t:� ma*.rix, ?icer.�e revocation often does not result until a fourth violation appearance, whereas this incident was the third appearance for C.L. Hinze, Inc. However, the matrix applies to several listed offenses but does not refer to "assault on a patron." Thus the present offense is unlisted, and the matrix is not generally applicable. Further, even if we applied the matrix by likening assault to one of the listed offenses, the matrix allows for deviation from the presumptive penalty where the city council provides "substantiai and compelling" reasons. See St. Paul, Minn., Legislative Code § 409.26 (a). Here, the city council articulated written reasons in support of its decision, including the fact that (1) C.L. Hinze, Inc. has a history of violations, (2) Iiinze committed the act against the patron, rather than an employee, (3) the patron was intoxicated and vulnerable, (4) Hinze's grabbing the patron around the neck constituted a significant act of violence, (5) Hinze later attempted to interfere with the licensing proceeding and dissuade the patron from testifying, and (6) St. Paul needs progressively � _ . 9 `- � � y� tougher penalties for multiple violations. In light of these findings we conclude the ciry council properiy supported a deviation with subsiantial and compelling reasons. The duly elected city council acted within iu broad discretion in revoking the licenses of C.L. Hinze, Inc. Although revocation is a harsh remedy, the city councii has the authority :o impose punishment different than that recommended by the ALJ. BAL, Inc., 469 N.W.2d at 343. As the suoreme court has stated (n]o citizen has an i�herent o* vested right ic sell intcxicating liquors, and municipal authorities have broad discretion within their geographical jurisdiction to determine the manner in which liquor licenses shall be issued, regulated, and revoked. Sabes, 265 Minn. at 171, 120 N.W.2d at 875. Accordingly, we conclude the revocation was neither arbitrary nor capricious. II. C.L. Hinze, Inc. argues the city's action, when coupled with an ordinance that would prohibit relicensing at the site of Chuck's Bar, amounts to a regulatory taking. This issue was neither addressed nor at issue below in this licensing action. Because this court does not have original jurisdiction t� consider this issue for the first time on appeal, we decline to do so. See Thiele v. Stich, 425 N. W.2d 580, �82 (Minn.-1988) (appellate court may only consider those mattezs presented to and considered by the district court). Affirmed. '� _ �� � ' 7.3i-9� -�-