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98-120 � Council File # 1 l ao O R� G� IVA� , RESOLUTION Green sheet #� a1 � Presented By Re£erred To ,INT U , MINNESOTA `—t Committee: Date RESOLVED, that an administrative hearing was held pursuant to proper notice concerning the patio service license and all other licenses held by Bilco, Inc. dba Billy's on Grand, for its licensed premises at 857 Grand Avenue in Saint Paul; and, be it FURTHER RESOLVSD, that the Report of the Administrative Law Judge (ALJ), dated December 8, 1997, is expressly ratified and adopted, and the Findings of Fact and Conclusions contained in that Report are hereby adopted as the written findings and conclusions of the Council in this matter and incorporated herein by reference. The Recommendation of the ALJ that no adverse action be taken against the patio service license is adopted, based on such findings, conclusions and recommendation; and, be it FURTHER RESOLVED, that this determination does not and is not intended to resolve, adjudicate or decide any issue, fact or controversy between the licensee (including William and James Wengler) and any owner or owners of property adjacent or near to the licensed premises or on which any part of the licensed premises is or is claimed to be located (including Peter Quinn, James Stolpestad and VC Parking Management Co.). This Resolution merely determines that there shall be no adverse action against the licensee. � 2/��f OR1GfNAL °Ig• lao This Resolution is based on the record of the proceedings before the ALJ, including the hearing on October 21, 1997, the documents and exhibits introduced therein, communications to the Council and included in the record, and the proceedings and deliberations of the Council in open session on January 2S, 1998. A copy of this Resolution, as adopted, shall be sent by first class mail to the Administrative Law 3udge, Barbara L. Neilson, and to the licensee, William Wengler. 14 Requested by Department of: Adoption Certified by Council Secretary By: /� � Approved by Mayo ate _l� By: By: Form Approved by Cit Attorney B Y � 5 f 1� Approved by Mayor for Submission to Council &y: Adopted by Council: Date �,��qq� Qp -1 �.o GREEN SHEET Anderson February 18, 1998 TOTAL # OF StGPJATURE PAGES No 62198 u�� u��— ❑�.,�, ❑��_ ❑ Fmxa.ta�xxeFSOw. ❑ w�ucu�mrvi�ccro ❑ r�vortlw��easuwp ❑ (CL1P ALL LOCATIONS POR SIGNATURE) Finalizing City Council action taken January 28, 1998 concerning adverse action against licenses held by Billy's On Grand, 857 Grand Avenue. PLANNING COMMISSION CIB CAMMITfEE CIVIL SERVICE COMMISSION IF IF OF TRANSACTION SOURCE H� this persoNfirm e+erworketl under a cant2ct for this department9 VES NO Fias ihis pereoNfirm ever heen a cilY emDloYee'+ YES NO Does this peicoNfirm P�ss a slali iwt rwm�allyP�se�ed bY anY curtmt oilY emD�%'ee4 YES NO Is Mis f��rm a tarpMetl veMa? YES NO COET/REVENUEBUDQETED(CIRCLEON� ACTIVI7Y NUMBER YES NO � � -1ao Interdepartmental Memorandum CITY OF SAINT PAUL DATE: February 3, 1998 TQ: Nancy Anderson Assistant Council Secretary 310 City Hall FROM: Peter Pangborn Paralegal 400 City Hall RE: Consent Agenda - February 18, 1998 1. Billy's on Grand Nancy: Attached is the resolution identifying that no penalty was imposed by the City Council on Billy's on Grand. Please schedule this matter for the Consent Agenda for the council hearing on Wednesday, February 18, 1998. Thanks. Sincer y, %� Peter P. Pang orn Q�s0US1Ci� �258'�tC�? ��^=`2C �� OFFICE OF Tf� CITY ATTORNEY p` � PegBirk,Ciry - `6 �,� CITY OF SAINT PAUL Norm Coleman, Mayor 7anuary 6, 1998 Brian D. Alton Attorney at Law McClay, Alton, P.L.L.P. 951 Crrand Avenue Saint Paul, Minnesota 55105 CivilDiv"uion zi 400CityHall Telephone:612266-8770 15 West KeZlogg Btvd Facsimile: 612 298-5619 Saint Paul, Minnesota 55702 NOTICE OF COUNCIL HEARING COdYIC� �� ± vniV C � ��Q� Re: Licenses held by Bilco, Inc. d/b/a Billy's on Grand for the premises located at 857 Grand Ave. in St. Paul License ID No.: 18526 File Number: G97-0318 Dear Mr. Alton: Please take notice that a hearing on the report of the Administrative Law Judge conceming the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, January 28,1998, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey Counry Courthouse. You have the opportunity to file excepfions to the report with the City Clerk at any time during normal business hours. You may also present oral or written azgument 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 judgement and discretion. Sincerely, � �� Virginia. D. Palmer Assistant City Attorney ca Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP " Tim Dornfeld, Exec. Director, Dist. 2 Community Council, 2169 Stillwater Ave., St. Paul, MN 55119 December 8, 1997 STATE OF MINNESOTA OFFICE OF ADMINISTRA.TIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 98�-�ao Fred Owusu, City Clerk 170 City HaU 15 West Kellogg Boulevard St. Paul, MN 55102 RE: In the Matter of the Patio Service License Held by Biico, inc., d/b/a Biilys on Grand, License No. 18526; OAH Docket No. 11-2111-11343-3 Dear Mr. Owusu: Enclosed and served upon you is the Administrative Law Judge's Findings of Fact, Conclusions and Recommendation in the above-entitled matter. Also enclosed is the official record, with the exception of the tape recording of the hearing, which will be sent to you under separafe cover. Our file in this matter is now being closed. incerely, a�h�« � . `�'l e:� �� BARBARA L. NEILSON Administrative Law Judge Te lep h one: 612/341-7604 BLN:Ir Enctos es cc: rgima D. Palmer Brian D. Alton � n � ' ��.4J ��.�f�'E� DEC 09 �997 C��°� �1"�C�RNEY Prov+ding ImpaRial Hearings for Govemment and Citizens A n Eq ual Opportunity E mployer Administretive Law Section & Administrative Services (612j 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 QY-1ao 11-2111-11343-3 STATE OF MINNESOTA OFFICE OFADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of the Patio Service License Held by Bilco, Inc., d/b/a Billy's on Grand FINDINGS OF FACT. CONCLUSIONS AND License No. 18526 RECOMMENDATION The above-entitled matter came on for hearing before Administrative Law Judge Barbara L. Nei4son on October 21, 1997, at 9:30 a.m. in Room 1504 of the St. Paul City Hall Annex. Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102, appeared on behalf of the Office of License, inspections and Environmental Protection of the City of Saint Paul ("the City"). Brian D. Alton, Attorney at Law, McClay • Alton, P.L.L.P., 951 Grand Avenue, St. Paul, Minnesota 55105, appeared on behalf of the Licensee, Bilco, Inc., d/b/a Billy's on Grand. The record in this matter closed on November 10, 1997, upon receipt of the City's reply brief. This Report is a recommendation, no a final decision. The Saint Paul City Council will make the finaf decision after a review of the record. The City Council may adopt, reject or modify the Findings of Fact, Conclusions and Recommendations contained herein. Pursuantto Saint Paut legislative Code section 310.05(c-1), the City Council shall provide an opportunity to present orai or written argument alieging error in this Report and to present argument related fo any adverse action recommended in this Report. The parties should contact the City Clerk to ascertain the procedure for filing such argument or appearing before the Council. STATEMENT OF ISSUES The issue presented in this matter is whether adverse acfion should be taken against the patio service license held by Biico, inc., dib/a 8iily's on Grand, on the grounds that the Respondent has not fulfilled one of the conditions for the license by obtaining consent for the use of three off-stteet parking spaces. Based an all of the proceedings herein, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. The Respondent, Biico, Inc., d/b/a Biily's on Grand, currently hoids a patio service license (as well as other licenses) for its restaurant located at 857 Grand Avenue in 9Y-�ao St. Paul. The Respondent first obtained ifs patio service license in approximately 1985. Ex. 1. Its current patio senrice license will expire on June 13, 1998. Ex. 8. 2. Billy's on Grand is a fenant in Victoria Crossing East Mail. The East Mall is owned by East Mall Associates, a general partnership comprised of William Wengler and his brofher, James Wengler. Ex. 1; Testimony of W. Wengler and J. Lynden. 3. VC Parking Management Co. is a Minnesota non=profit corporation which was incorporated by Peter J. Quinn in May, 1995. Mr. Quinn is President of the corporation. Ex. E; Testimony of J. Lynden. 4. VC Parking Management Co. is the fenant under a long-term lease for the parking {ot owned by St. Paul's United Church of Christ between Miiton and Victoria Streets and north of the alley between Grand and Summit Avenues. This parking lot is referred to as the "Vic II LoY' or the "Church Lot" Exs. A, 1(attachment) and 12; Testimony of W. Lane, W. Wengier, and J. Lynden. A special condition use permit has been obtained with respect to the Vic 11 parking iot to permit parking to be shared befiveen the United Church of Christ and commercial uses. Testimony of W. Lane. 5. At some time during 1995, Wendy Lane, the City's Zoning Manager, became aware that the Respondent was interested in expanding the size of the patio used to serve customers at Biily's on Grand. Ms. Lane reviewed the RespondenYs request for expansion of the patio service ficense to assess compliance with the City's zoning ordinance. She concluded that the proposed expansion of the patio did not require additional parking spaces under the City's buiiding ordinance, but determined that a tota{ of three parking spaces would be displaced by the new patio construction. Accordingly, she decided that the Respondent wouid be required to obtain three new parking spaces that compfied with the City's requirements and would be designated for use by Respondent. She discussed this requirement with the Respondent, and the Respondent tofd her that it planned to obtain parking in the �c II Lot. Testimony of W. Lane. 6. East Mall Associaies enfered into a Customer Parking License with VC Parking Management Co. for a term that commenced on November 1, 1995, extended initially through October 31, 1996, and continued thereafter from year to year. Under this agreement, East Malf Associates agreed to pay a rate of $320 per month in exchange for the agreement of VC Parking Management that East Mall Associates would be granted a non-exclusive license for its customers to park in the Parking Lot. 8ilfy's on Grand, by Bili Wengler, its President, also entered into a Special Customer Parking License with VC Parking Management Co. for a term that commenced November 1, 1995, extended initially through October 31, 1996, and continued thereafter from year to year. Under this Special Cusfomer Parking License, Biily's on Grand agreed to pay VC Parking Management Co. $150 per month for a term in exchange for a non-exciusive special customer parking license for three parking stalls in the parking lot. Ex. 12' These iicenses have now expired and have not been renewed. Exs. 6-7; Testimony of W. Lane, W. Wengler. , � °��' -\ao 7. Mr. Wengler asked Peter Quinn of VC Parking Management whether he could use three spaces in the Vc II Lot if he could get Mr. Quinn more spaces in that Iot. Mr. Quinn said "absolutely." Accordingly, Mr. Wengler hired an architect and worked with the architect to reconfigure fhe �c II Lot to the acceptable standards of the City. They ultimately designed a new configuration of parking spaces that added approximately twenty spaces to the Vc fl Lot. Mr. Wengier also hired an attorney to assist in obtaining City approval of the site plan for the reconfigured parking fot and put up a�2,000 cash escrow with the consent of VC Parking Management Go. to ensure completion of the site improvements. Testimony of W. Wengler, J. Lynden; Ex. C. 8. On November 14, 1995, Peter Quinn of VC Parking Management consented to fhe use by East Mall Associates as owners of Victoria Crossing East Mall of three parking spaces in the 1ot and agreed that three parking places could be designated to Victoria Crossing East Mall. Ex. A; Attachment to Ex. 1. There has never been a formal revocation or rescission of the November 14, 1995, Consent Agreement by anyone claiming to be an officer of VC Parking Management Co. East Mali Associates has agreed that these three spaces could be used for the Respondent's patio expansion of Billy's on Grand. Testimony of W. Wengler, J. Lynden. 9. By letter dated December 21, 1995, counsel for the Respondent informed Ms. Lane that East Mall Association had arranged for ihree parking spaces in fhe Vic il Lot and that VC Parking Management Co. had consented to the use by East Mali Associates of the three spaces in the lot. Enclosed with the letter was a copy of the November 14, 1995, Consent Agreement between VC Parking Management Co. and East Mall Associates and a copy of an architecf's drawing of the proposed patio plan. Ex. 1. 10. By letter dated February 21, 1996, James A. Stolpestad, President of Exeter Realty Corporation, notified Ms. Lane on Exeter Reaity Corporation letterhead that VC Parking and Billy's on Grand had "not been able to finalize their tentative arrangemenY' for the use of three parking stalls in the Vic fl Parking Lot and requested that the City "piace this matter on hoid until further notice." Ex. 2. 11. By letter dated March 7, 1996, the City notified counsei for the Respondent that no additional petition was required for the expansion of the patio for Billy's on Grand since it would not be larger than the size of the original patio approved in 1985. The City indicated that the loss of three required off-street parking spaces would not be permitted according to the zoning code. Accordingly, the City stated that either three additional 4egai parking spaces had to be obtained or a parking variance had to be granted. The City stated that it wouid approve the license for the patio expansion subject to three conditions. The only condition which is at issue in the current proceeding is the third condition. The City described that condition as follows in its March 7, 1996, letter: A valid lease for three off-street parking spaces �t the Vic II parking lot must be submitted. Although a statement was submitted approving the use of three parking spaces from Peter Quinn, James Stolpestad has informed us �� 9g-\Zo that there is no formal arrangement for the use of three parking spaces. Assuming a lease is submitted, a restriction will be added to the license specifying that the lease for the three parking spaces must remain valid. If the lease is terminated, fhat portion of the newiy expanded patio would need to be removed and the four [sicj off-street parking spaces reesfablished, alternative parking obtained or a parking variance acquired. Ex. 3; Ex. B. 12. In a letter dated March 20, 1996, from City Landscape Architect Tom Beach to Mr. Stoipestad of Exeter Realty Corporation, Mr. Beach noted, inter alia, that the revised site plan for the "Vctoria lI" parking lots showed 178 parking spaces in the "Church" lot and 30 parking spaces in the "Milton Mall" lot, for a total of 208 parking spaces, which was an incsease of 20 parking spaces over the then-existing situation. This increase was the result of reducing the width of the parking spaces to 8.5 feet and removing the gates and booths from the lot. Mr. Beach stated that these additional parking spaces "may be used for the next three years for an expansion of gross floor area or a change in use requiring additional parking as specified in Section 62.103(i) of the Zoning Code." Ex. C. 13. At some time during late 1995 or the first three months of 1996, Mr. Wengler provided Ms. Lane with a copy of the Customer Parking License and Special Customer Parking License referenced in Finding No. 6 above (Ex. 12). 14. At the request of Ms. Lane, the RespondenYs President, Bill Wengier, signed an agreement dated March 28, 1996, which stated that "[t}he extension of service as a result of the renovation of the patio area is subject to the consent for the use of three (3) off-sfreet parking spaces from the VC Parking Management Co. at the Vic {I parking {ot" The agreement further sfated that, "[i]f in the future this condition is not complied with, I [Mr. Wenglerj agree (at my option) to apply for a variance, find three (3) additiona4 parking spaces or restore the patio to its condition prior to its renovation." Ex. 4. 15. After Ms. Lane reviewed Ex. 12 and Mr. Wengler signed Ex. 4, Ms. Lane signed off on the RespondenYs patio expansion appiication. The patio service license expansion was approved by the City during the spring of 1996. Testimony of W. Lane. 16. In a letter dated April 1, 1996, to N{r. Stolpestad, Ms. Lane reiterated that the March 20, 1996, letter sent by Mr. Beach approving the site plan for the Vic il parking lot indicated that an additionaf 20 off-street parking spaces could be obtained by rearranging the lot and that these spaces may be used for expansions or changes in use over the next fhree years. Ms. Lane informed Mr. Stolpestad that, since a lease for three off-street parking spaces in the Vic II parking lot had been granted for the patio expansion for Biily's on Grand, 17 parking spaces remained for new expansions or use changes. Ex. D. The City currently continues to view three spaces in the Vcil Lot as having been allocated to Billy's on Grand. Testimony of W. Lane. _,! 98'-�a� 17. in approximately December of 9996, James lynden, who has served in the past as counsel for Bilco and East Mall Associates, received for the first time a copy of a Purchase, Assignment and Termination Agreement that had been entered into on April 28, 1995, by 917 Limited Partnership (a Minnesota Iimited partnership that owns the Victoria Crossing Milton Mall and the parking lots located north and east of the Milfon Mall), Montreal Company (a company which had entered info a letter of intent to purchase the �ctoria Crossing West Mall, Q& S Partnership (a general partnership with two partners, Peter Quinn and James Stolpestad), VC Parking Management Co. (described in the Agreement as a Minnesota non-profit parking management company that was created by representatives of businesses and organizations located in the Grand and Victoria area of St. Paul), and APCOA, inc., a Delaware corporation and national parking management company that operated the Vic II North Lot and the Vic II East Lot at the time. Ex. F. Mr. Lynden had previously learned of the existence of this Agreement. However, due to a confidentiality provision in the Agreement, he lacked detailed knowledge of its terms and had not seen a copy of the Agreement until December, 1996, after Mr. Stolpestad waived the confidentiality provision. Mr. Lynden provided East Mall Associates with a copy of the Purchase, Assignment and Termination Agreement in approximately December of 1996. Ex. F; 7estimony of W. Wengler and J. Lynden. 18. Pursuant to the Purchase, Assignment and Termination Agreement, Q& S purchased from APCOA certain equipment and improvements iocafed on the Vic II North Lot, the �c II East Lot, and the Church Lot, and VC Parking Management Co. received an assignment of APCQA's rights, title and interest in those lots and assumed APGOA's obligations and liabilities under a lease agreement with St. Paui's United Church of Christ dated September 24, 1994, subject to obtaining the Church's written consent to the assignment. The Agreement expressiy states that the parking lot to be operated by VC Parking Management "shail be operated as a free parking facility solely for (i) Church functions, (ii) customers of those business and property owners or tenants in the business area surrounding the parking lot, and (iii) customers of the East Mall." Ex. F at 3 (emphasis added). 19. At some point prior to January 22, 1997, Mr. Wengler contacted Ms. Lane and stated that he wanted to make sure that there would not be a problem with the RespondenYs patio license during the summer of 1997. In response, Ms. Lane sent Mr. Wengler a letter dated January 22, 1997, which stated, inter alia, that the third condition for the patio service license was deemed to be satisfied based on the information Mr. Wengier had provided the City: "The third condition was accepted based on the evidence you submitted. While I understand there may be a dispute about the lease agreement, we expect you to resolve any differences. lf they are resolved against you, you wilf be in violation of your license condition. However, unless we receive dispositive evidence to the contrary, we consider condition number tfiree to be met." Ex. 5. Mr. Weng{er submitted some information to Ms. Lane following his receipt of the January 22, 1997, letter which supported his view that he had the right to use three spaces in the Vic II Lot. Ms. Lane cannot recail what information Mr. Wengler submitted. Testimony of W. Lane. 4 q� 20. By letter dated April 10, 1997, Mr. Stolpesiad notified the City on Exeter Holdings L.L.C. letterhead that Mr. Wengler had never had a lease for three off-street parking spaces at the Vc il parking lot and that the only arrangemeni Mr. Wengler had had was a one-year license which expired in October of 1996 and had not been renewed. Mr. Stolpestad further stated that Mr. Wengler had had a one-year Iicense to use the Uc 11 parking lot for his other tenants of the East Mall but that also had expired in October, 1996, and had nof been renewed. Mr. Stolpestad stated that he believed, based on "past attempts to deal with [Mr. Wengler]" that it would be "highly urilikely that we will reach any agreement with Mr. Wengler concerning his use of the Vic ll parking lot." Ex. 6. 21. By Ietter dated June 3, 1997, Mr. Sto{pestad notified the City on Exeter Holdings letterhead that Mr. Wengler stili did not have a lease for the three Vic II parking spaces, and stated that, "[b]ecause we have been unabfe to negotiate a new agreement with Mr. Wengier concerning the vc II parking lot, we will soon be taking formal steps to exclude his tenants and customers from using this facility." Mr. Stolpestad enclosed a copy of a letter sent to Mr. Wengler by Mr. Stolpestad and Peter Quinn on July 31, 1996, which asserted that Mr. Wengier's license arrangement for the three parking spaces in the Vic {I parking lot would be terminafed as of October 31, 1996. The July 31, 1996, letter indicated that VC Parking Management was wiNing to negotiate new parking ficenses with both East Mall Associates and Biily's on Grand in which both entities would pay their fair shares of the expenses incurred to secure tFe fot for customer parking. Ex. 7 and attachment. 22. The City sent the Respondent a Notice of Vio(ation dated July 24, 1997. The letter notified the Respondent that the Director of the City's Office of License, Inspections and Environmental Protection would recommend that adverse action be taken against the patio service license held by the Respondent at Billy's on Grand based upon an assertion that none of the three condit+ons of the e�ended patio service license had been satisfied. The letter informed the Respondent of its right to request an evidentiary hearing before an Administrative Law Judge. Ex. 9. 23. At the hearing, the parties stipulated that the only issue presented in this case was whether the Respondent had complied with the third condition placed on the license. 24. The Respondent submitted a timely request for hearing, and this proceeding was commenced. Ex. 10. 25. By letter dated October 17, 1997, Mr. Stolpestad notified the City on Exeter Holdings L.L.C. letterhead that nothing had changed with respect to Billy's Restaurant and the Vc II parking lot, and that he had not had any contact with Mr. Wengier in many months. Ex. 11. 26. The City does not require that the three parking spaces be marked with a sign declaring that they are for the sole use of customers of-Billy's on Grand but does require that there be an agreement indicating that the Respondent has the abi4ity to use three specific spaces. Testimony of W. Lane. � � �� -�a�o Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the foilowing: CONCLUSIONS 1. The Saint Paul City Council and the Administrative Law Judge have jurisdiction in this mafter pursuant fo Minn. Stat. §§ 14.55 and 340A.415 and Sainf Paui Legislative Code §§ 310.05 and 310.06. � 2. The Notice of Hearing issued by tMe City was proper and all applicable substantive and procedural requirements have been fuifilled. 3. The City bears the burden in this matter of proving by a preponderance of the evidence that adverse action is warranted with respect to the patio service license at issue. 4. Chapter 310 of the Saint Paul Legislative Code contains general provisions relating to licenses issued by the City. Section 310.06(b)(5) of the Saint Paul Legisiative Code provides that adverse action may be taken when "[t]he licensee or applicant has failed to comply with any condition set forth in the ficense, or set forth in the resolution granting or renewing the license.° 5. Sections 62.103 and 62.104 of the Saint Paul Legislative Code contain a portion of the zoning code relating to parking requirements and off-street parking facifity standards and design. Section 62.103(e), which governs changes in the use of parking areas, provides as follows: Designated or identifiabie existing off-street parking facilities, accessory to one (1) or more principal uses, structures or facilities, may be changed to another use when the remaining off-street parking meeis the requirements that this section would impose on new buildings for ail facilities, structures or uses, including the new use. When the remaining off-street parking does not meet such requirements, other off-street parking shall be substituted for the parkingsoace changed to another use, and additional off-street parking shall be provided for the new use in accordance with the requirements of this section. (Emphasis added.) Section 62.104(3), which governs nonresidential parking facility locations, requires in this instance that off-street parking be obtained "within three hundred (300) feet of the building it is intended to serve ...." 6. The City has fai4ed to establish by a preponderance of the svidence that the Respondent has not obtained consent from VC Parking Management Co. for the use of three off-street parking spaces in the Vic 11 parking lot. 7. The foregoing Conclusions are made for the reasons set forth in the attached Memorandum, which is hereby incorporated in these Conclusions by reference. 7 `1 �' -\ao 8. Citations to exhibits or testimony in the foregoing Findings of Fact does not mean that all testimony or exhibits that support the Findings have been cited. Based upon the foregoing Conclusions, the Administrative Law Judge makes the foliowing: RECOMMENDATION 1T 1S HEREBY RESPECTFULLY RECOMMENDED: that the Saint Paul City Council not fake adverse action against the patio service license of Bilco, Inc., d/b/a Billy's on Grand. Dated this �'"� day of December, 1997 «��rr�..n.... l. . tJ cr-Q S vvt_ BARBARA L. NEILSON Administrative Law Judge NOTICE The City is respectfully requested to provide a copy of its final decision to the Administrative Law Judge by first class maii. Reported: Tape recorded (2 tapes). MEMORANDUM The primary issue in this case is whether or not the Respondent has satisfied the third condition placed on the extension of its patio service at Billy's on Grand. The resolution of this issue hinges upon the proper interpretation of the requirement that the Respondent obtain "consent for the use of three (3) off-street parking spaces from the VC Parking Management Co. at the Vc il parking lot." Ex. 4. The parties submitted conflicting evidence and argument concerning this issue. Unfortunately, neither party chose to call Peter Quinn or James Stolpestad, who obviousfy are at the center of the dispute between the parties and would have been able to cast considerable light on the status of the parking arrangement between VC Parking Management Co. and Biliy's on Grand. The City asserts that the Respondent's patio service license should be revoked or suspended until such time as the Respondent obtains a parking variance; provides a valid and acceptable lease, agreement, or consent for three parking spaces dedicated to use by Billy's on Grand or other acceptable parking; or restores the patio to its condition prior to expansion in 1996. The City contends, and the Res�ondent agrees, that the customer parking licenses (Ex. 12) upon which the City apparentiy relied in granting the patio service extension have expired and have not been renewed. The City further argues that the November 14, 1995, agreement behveen VC Parking Management Co. and East Mall � 9F- �ao Associates (Ex. A) in which VC Parking consented to the use by East Mall Associates as owners of Victoria Crossing East Mall of three parking spaces in the Vic II parking lot (hereinafter referred to as the "Consent AgreemenY') is inadequate evidence of an agreement to designate three spaces for Biliy's on Grand because it does not state a term and does nof specifically designate the spaces for Billy's on Grand. The City apparently aiso contends that fhe Consent Agreement is invalid in light of correspondence received from James Sfolpestad. The Cify further argues that Saint Paul Legislative Code § 62.103(e) requires that "the business which is changing the use of certain parking spaces must replace the parking° and thereby apparentiy asserts that consent supplied to East Mall Associates for the use of certain spaces is insufficient to allow the spaces to be allocated to Bi{!y's on Grand. Reply Brief at 1. The City further points out that correspondence from James Stolpesfad, whom the City Zoning Manager understands to be jointly involved with Peter Quinn as a co-owner in VC Parking Management, indicates there is no arrangement to permit Billy's on Grand to use three spaces in the Vic II parking lot (Exs. 2, 6, 7, and 11).� The City asserts that it has no interest in taking sides in the apparent dispute between Mr. Stolpestad and the Respondent, but contends that, under these circumstances, it was justified in requiring the submission of further documentation or other information from the Respondent supporting its assertion that three parking spaces in the Vic II lot were designated for Billy's on Grand. After careful consideration of the record as a whole, the Administrative Law Judge has concluded that the City has not borne its burden to show by a preponderance of the evidence that adverse action against the RespondenYs patio service license is warranted. Under basic contract law principles, the Consent Agreement is a contract between VC Parking Management and Easf Mail Associates. Mr. Wengler testified without dispute that he offered to hire a archifect to reconfigure the lot and obtain additional parking spaces in exchange for the promise that VC Parking Management would aliow East Mall Associates the use of three parking spaces in the Yc il Lot, and that Peter Quinn, President of VC Parking Management Co., accepted that offer. The contract was supported by ample and valuabie consideration. lt is evident that Mr. Wengier in fact hired an architect to assist in redesigning the parking lot as he had promised, and that the actions resulted in the addition of 20 parking spaces to the Vic {I Lot, a considerable benefit to VC Parking Management. It is also undisputed that Mr. Wengler hired an attorney to assist in obtaining site approval for the improvements to the �c 11 Lot and submitted a$2,00� cash escrow to ensure that the work was performed. There is also evidence that Mr. Wengler relied upon At the hearing, the Respondent objected to the receipt into evidence of Mr. Stoipestad's letters as hearsay and also objected that it had not received any advance notice that the City would seek to rely upon information obtained from Mr. Stolpestad. The letters were received in evidence based upon the Judge's view that admission wouid be consistent with § 310.05(e) of the Saint Paul Legislative Code which provides that the "hearing examiner ... shall rece+ve and give weight to evidence, including hearsay evidence, which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs." The Respondent was offered an opportunity to depose Mr. Stolpestad or to reconvene the hearing at a later date to hear his testimony, buE deciined to do so. � R8-�ao the Consent Agreement to his detriment by incurring these costs, submitting the Consent Agreement to the City as evidence of an agreement to obtain replacement parking spaces, and proceeding with his plans to renovate the pat+o at Bi{4y's on Grand. Although the Gonsent Agreement ifself does nof specify a duration, it does include a specific reference to the fact thaf VC Parking Management Co, is the tenant under a fong- term lease for the Uc II Lot and thereby reasonably implies that the duration of the Consent wi(I be the same as that of the long-term lease. The Consent issued to East Mali Associates for the use of three specific parking spaces in the Vic I I Lot was executed as a separate document a few weeks after the customer parking licenses were executed, and thus would appear to be unaffected by the expiration of those licenses. Moreover, there is no evidence that the Consent was ever formally rescinded or revoked by anyone purporting to act as an officer of VC Parking Management. Even though the Consent Agreement as written runs to the benefit of East Mall Associaies, East Mali Associates has agreed that the spaces should be designated soiely for customers of Billy's on Grand. As a result, there will be not be competing claims on these spaces by other tenants of East Mai{ Associates, as the City contends. Contrary to the City's assertion, section 62.103(e) of the Saint Paul Legislative Code merely states that "other off-street parking shaN be substituted for the parking space changed to another use," and thus does not mandate that only the particular business entity invoived may arrange for the off-street parking. The fact that Ms. Lane apparentiy disregarded the Consent Agreement at the time the license was issued in spring of 1996 and chose merely to rely upon tlie customer parking licenses that were in effect at that time does not decide the issues presented in this case, since the evidence provided at the hearing indicates that the Consent Agreement currently remains in effect, runs to the benefit of Billy's on Grand, and thus merits reexamination. Contrary to the City's argument, neither the zoning ordinance nor Mr. Wengier's March 28, 1996, agreement with the City require that the Respondent be permitted to rely upon the Consent Agreement only if there is a judicial determination that the document is binding and irrevocabie. There is insufficient evidence in the record in this proceeding from which the Administrative Law Judge could conclude that Mr. Stolpestad had authority to act on his own on behalf of VC Parking Management Co. and that the Consent Agreement has somehow been revoked by virtue of his apparent disagreement with Mr. Wengler. Mr. Stolpestad was in New York on the day of the hearing and did not testify. The Ciry did not take his depos+tion to preserve his testimony or request a confinuance or an additional day of hearing in order to permit him to testify at the hearing. No definitive evidence was provided relating to the nature of the role Mr. Stolpestad plays in VC Parking Management Co. Mr. Stolpestad apparently has had some responsibility in the Company in the past, as evidenced by the fact that his name and signature appears with that of Mr. Quinn on the one document in the record that is written on the letterhead of VC Parking Management Co. (attachment to Ex. 7) and VC Parking Management uses the same address as Exeter Realty Corporation. However, the City has not established in the record of this case whether Mr. Stoipestad is currently or has previously been an officer in the corporation, 10 q� -1ao whether he has proper aufhority to act on his own on behalf of VC Parking Management Co., or whether he may properly override the actions taken by Mr. Quinn as President of the corporation. The letters Mr. Stolpestad wrote to Ms. Lane expressing the view that the Respondent did not have a valid right to use three parking spaces in the Vic II lot were written by Mr. Stolpestad on letterhead from Exeter Reaity Corporation or Exeter Hoidings L.t.C., not VC Parking Management Co. Moreover, Mr. Stolpestad's statement in his letter of February 21, 1996, that the parties had "not been able to finalize their tentative agreement" does not make sense in light of the parties' ent'ry into the customer parking licenses in November, 1995. In view of these uncertainties and inaccuracies, the City should not properly view the letters sent by Mr. Stoipestad as "dispositive evidence" (see Eu. 5) that the third condition of licensure had not been satisfied. Mr. Stolpestad's view of the situation is apparently at odds with that of Peter Quinn, who signed the Consent Agreement on behalf of VC Parking Management. There has been no showing by the City that Mr. Quinn lacked the authority to enter into the Consent with East Mall Associates. To the contrary, the undisputed evidence provided by the Respondent demonstrates that Mr. Quinn incorporated VC Parking Management Co., serves as the company's President, and in fact has authority to act on behalf of VC Parking Management Co. in addition, the Purchase, Assignment and Termination Agreement entered into in April, 1995, gives the customers of East Mall an unrestricted right to park anywhere on the vc II lot. The Purchase, Assignment and Termination Agreement was signed both by Mr. Quinn (on behalf of VC Parking Management Co.) and by Mr. Stolpestad (on behalf of Montreal Company and 917 Limited Partnership). Thus, by contract, VC Parking Management Co. is required to operafe the Vic II Lot as "a free parking facility solely for ... (iii) customers of the East Mafi:' Ex. F. Silly's on Grand is located in the East Ma11. Accordingly, customers of Billy's on Grand cannot be excluded from parking in the Vic il Lot. Because the terms of the Purchase, Assignment and Termination Agreement were confidential and were not disclosed to Mr. Wengier and his counsel until approximately December, 1996, the City shouid not fault Mr. Wengler for failing to argue at the time the license was granted in March, 1996, that the Purchase, Assignment and Termination Agreement satisfied the zoning requirements. The Administrative Law Judge has concluded that the Consent Agreement providing East Mall Associates three spaces in the Vic II Lot, the subsequent decision by East Mall Associates that these three parking spaces shail be solely for customers of Biliy's on Grand, and the grant of unrestricted parking rights to customers of the East Mall contained in the Purchase, Assignment and Termination Agreement, taken together, satisfy the third condifion placed on the RespondenYs license. The Administrative Law .fudge thus respectfu{ly recommends that no adverse action be taken against the patio service license of Biico, Inc., d/b/a Billy's on Grand. B.L.N. - 11 C A � 5 :�m Mr. Fred.Owusu, City Clerk 170 City Hall - 15 West Kellogg Boulevazd Saint Paul, MN 55102 VC PARKING MANAGEMENT CO. 7anuary 15, 1998 a �� a � r2ECEIVED JAN 161998 vi?Y CLERK gC-�ao C�unc� �� i�;:�: 1 � `J � .��," Jj-%!�� ,.,� tJJ1 Re: In the Matter of the Patio Service License Held by Biico, Inc., d/b/a Billy's on Crrand License No. 18526, OAH Docket No. 11-2111-11343-3 Dear Mr. Owusu: �'�'e aze writing about the decision of the Administra:iva Law 3udge in the above-referenced matter which adversely affects us financially. Even though we are repeatedly mentioned in the decision that was filed with your office, we were not �iven a» op�ortuni to ap�ar at the administrative hearin� or present a written statement to the Administrative Law Jud�e. We think basic principles of fairness and due process require that our side of this dispute be included in the record and be given due consideration. We therefore request that the City Council refer this matter back to the Administrative Law Judge for reconsideration of her decision in light of the information contained in this letter. There are several factual matters we would like to bring to the attention of the Administrative Law Judge. First, we would like to clarify who owns and speaks for VC Parking Management Co. Throughout her decision and supporting memorandum, the Administrative Law Judge had difficulty understanding the role of James A. Stolpestad in VC Parking Management Co. and seemed to disregard all of his correspondence that was introduced at the hearing by the City of Saint Paul. In fact, Mr. Stolpestad owns 50% of VC Parking Management Co. and is its Secretary-Treasurer and Peter J. Quinn owns 50% of the company and is its President. All decisions of the company are required to be made by the unanimous agreement of Mr. Quinn and Mr. Stolpestad. Mr. Quinn signed the incorporation papers which were prepared and filed by Mr. Stolpestad who is an attorney. Moreover, the letters written by Mr. Stolpestad that are referred to in the decision and supporting memorandum (i.e., the February 21, 1996 letter on Exeter Realty Corporation letterhead and the April 10, 1997, 7une 3, 1997, and October 17, 1997 letters on Exeter Holdings LLC letterhead) were written on behalf of VC Parking Management Co. Exeter Holdings LLC is a management company that customazily communicates with third parties on behalf of the various buildings and companies it represents using its own letterhead. If we had been able to participate in the hearing, we could have clarified these facts for the Administrative Law 7udge, as she herself acknowledged in the first paragraph of her memorandum. We believe this clarification alone may have led the Administrative Law Jud�e to a different decision. Second, the Administrative Law Judge appears to have based much of her decision on an incorrect interpretation of a sin�le document. In the fall of 1995, VC Parkin� Management Co. issued two separate parking licenses to William T. Wengler, effective November l, 1995 -- a Customer Parking License for East Mall Associates and a Special Customer Parking License for Billy's Restaurant and Bar. 1080 Montreal Avenue, Suite 400, Saint Paul, MN 55'116 VC PARKING MANAGEMENT CO. l�' �a Mr. Fred Owusu, City Clerk Page 2 As the Administrative Law Judge accurately noted in her Finding No. 6, "These Zicenses have now expired and have not been renewed' (emphasis added), which Mr. Wengler himself acknowledged at the hearing, according to the second paragraph of the supporting memorandum. These simple facts should have ended the discussion. But the Administrative Law Judge then focused on a short letter signed by Mr. Quinn on November 1 l, 1995, and concluded that it was a sepazate "Consent Agreement", providing Billy's with three parldng spaces in the lot owned by St. Paul's Church, that was never terminated by VC Parking Management Co. However. this November 11. 1995 Zetier was nothin�more than a reference to the earlier parking Zicenses and was not a new a�reement between the parties. The relevant agreements were the parking licenses, which everyone agreed had expired. Third, the Administrative Law Judge drew entirely improper inferences from the Purchase, Assignment, and Termination Agreement between VC Pazking Management Co. and APCOA, Inc. -- in which VC Parking Management Co. agreed to acquire APCOA's leasehold interest in the Church parking lot. This agreement required that the lot be operated as a"free parking facility". This meant that VC Parking Management could not charge customers for parking but could assess business or• buildinQ owners in the area for the costs of�eratin�and maintaining the parking lot. This is what APCOA and VC Parking Management Co. had in mind when the Purchase, Assignment, and Termination Agreement was signed. It should be noted that neither Mr. Wengler nor his entities were parties to or third party beneficiaries of this agreement. Indeed. Mr. Wen�ler himself a�parently aQreed with our interpretation of the Purchase. Assimment. and Termination A�reement because he allowed himself to be assessed�'or such o�eratinQ costs as consideration for receivinQ his iwo parkinQ licenses for the,Zear they were in e�'fect. The dispute between VC Parking Management Co. and Mr. Wengler that is reflected in the Administrative Law Judge's decision is not about his patio or three parking spaces in the Church parking lot. Instead, it is about Mr. Wengler's failure to contribute his fair share to the costs of maintaining and operating the Church parkin� lot which serves the entire Grand and Victoria area, inc]udina his customers. The two of us spent approximately $225,000 of our own money to buy out APCOA in June of 1995 and refurbish the Church parking lot for customer parkin� and since then have spent approximately $3,500 per month to cover operating and maintenance costs. Mr. Wengler's contribution to the buyout was zero and his monthly contribution to operating costs since Cctober of 1996 has also been zero, even though his customers have enjoyed the use of the parking lot and Mr. Wengler has reaped the economic rewards of their patronage. We have been trying to enga�e Nlr. Wengler in a discussion about this matter for over a year without success. We are willing to keep trying. But unless and until Mr. Wengler is willing to talk to us and agree to pay his fair and equitable share of these costs, VC Parking Management Co., without havin� an, � inpr+t into the decision, should not be forced to allow Mr. Wengler to use the Church parking lot for his required three parking spaces in order to maintain his patio license. We would have no objection if he were to find those spaces elsewhere. 1080 Montreal Avenue, Suite 400, Saint Paul, MN 55'116 q.8' -\a� VC PARKING MANAGEMENT CO. Mr. Fred Owusu, City Clerk Page 3 We request that the City Council refer this matter back to the Administrative Law 7udge for a fair hearing of our side of this dispute. Thank you. Very truly yours, L�'*�''�'" • � Peter J. Q President � � James A. Stolpestad Secretary-Treasurer cc: Mr. Phillip Byrne, Assistant City Attorney Mr. Brian D. Alton, Attorney at Law '1080 Montreat Avenue, Suite 400, Saint Paut, MN 55116 � Council File # 1 l ao O R� G� IVA� , RESOLUTION Green sheet #� a1 � Presented By Re£erred To ,INT U , MINNESOTA `—t Committee: Date RESOLVED, that an administrative hearing was held pursuant to proper notice concerning the patio service license and all other licenses held by Bilco, Inc. dba Billy's on Grand, for its licensed premises at 857 Grand Avenue in Saint Paul; and, be it FURTHER RESOLVSD, that the Report of the Administrative Law Judge (ALJ), dated December 8, 1997, is expressly ratified and adopted, and the Findings of Fact and Conclusions contained in that Report are hereby adopted as the written findings and conclusions of the Council in this matter and incorporated herein by reference. The Recommendation of the ALJ that no adverse action be taken against the patio service license is adopted, based on such findings, conclusions and recommendation; and, be it FURTHER RESOLVED, that this determination does not and is not intended to resolve, adjudicate or decide any issue, fact or controversy between the licensee (including William and James Wengler) and any owner or owners of property adjacent or near to the licensed premises or on which any part of the licensed premises is or is claimed to be located (including Peter Quinn, James Stolpestad and VC Parking Management Co.). This Resolution merely determines that there shall be no adverse action against the licensee. � 2/��f OR1GfNAL °Ig• lao This Resolution is based on the record of the proceedings before the ALJ, including the hearing on October 21, 1997, the documents and exhibits introduced therein, communications to the Council and included in the record, and the proceedings and deliberations of the Council in open session on January 2S, 1998. A copy of this Resolution, as adopted, shall be sent by first class mail to the Administrative Law 3udge, Barbara L. Neilson, and to the licensee, William Wengler. 14 Requested by Department of: Adoption Certified by Council Secretary By: /� � Approved by Mayo ate _l� By: By: Form Approved by Cit Attorney B Y � 5 f 1� Approved by Mayor for Submission to Council &y: Adopted by Council: Date �,��qq� Qp -1 �.o GREEN SHEET Anderson February 18, 1998 TOTAL # OF StGPJATURE PAGES No 62198 u�� u��— ❑�.,�, ❑��_ ❑ Fmxa.ta�xxeFSOw. ❑ w�ucu�mrvi�ccro ❑ r�vortlw��easuwp ❑ (CL1P ALL LOCATIONS POR SIGNATURE) Finalizing City Council action taken January 28, 1998 concerning adverse action against licenses held by Billy's On Grand, 857 Grand Avenue. PLANNING COMMISSION CIB CAMMITfEE CIVIL SERVICE COMMISSION IF IF OF TRANSACTION SOURCE H� this persoNfirm e+erworketl under a cant2ct for this department9 VES NO Fias ihis pereoNfirm ever heen a cilY emDloYee'+ YES NO Does this peicoNfirm P�ss a slali iwt rwm�allyP�se�ed bY anY curtmt oilY emD�%'ee4 YES NO Is Mis f��rm a tarpMetl veMa? YES NO COET/REVENUEBUDQETED(CIRCLEON� ACTIVI7Y NUMBER YES NO � � -1ao Interdepartmental Memorandum CITY OF SAINT PAUL DATE: February 3, 1998 TQ: Nancy Anderson Assistant Council Secretary 310 City Hall FROM: Peter Pangborn Paralegal 400 City Hall RE: Consent Agenda - February 18, 1998 1. Billy's on Grand Nancy: Attached is the resolution identifying that no penalty was imposed by the City Council on Billy's on Grand. Please schedule this matter for the Consent Agenda for the council hearing on Wednesday, February 18, 1998. Thanks. Sincer y, %� Peter P. Pang orn Q�s0US1Ci� �258'�tC�? ��^=`2C �� OFFICE OF Tf� CITY ATTORNEY p` � PegBirk,Ciry - `6 �,� CITY OF SAINT PAUL Norm Coleman, Mayor 7anuary 6, 1998 Brian D. Alton Attorney at Law McClay, Alton, P.L.L.P. 951 Crrand Avenue Saint Paul, Minnesota 55105 CivilDiv"uion zi 400CityHall Telephone:612266-8770 15 West KeZlogg Btvd Facsimile: 612 298-5619 Saint Paul, Minnesota 55702 NOTICE OF COUNCIL HEARING COdYIC� �� ± vniV C � ��Q� Re: Licenses held by Bilco, Inc. d/b/a Billy's on Grand for the premises located at 857 Grand Ave. in St. Paul License ID No.: 18526 File Number: G97-0318 Dear Mr. Alton: Please take notice that a hearing on the report of the Administrative Law Judge conceming the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, January 28,1998, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey Counry Courthouse. You have the opportunity to file excepfions to the report with the City Clerk at any time during normal business hours. You may also present oral or written azgument 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 judgement and discretion. Sincerely, � �� Virginia. D. Palmer Assistant City Attorney ca Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP " Tim Dornfeld, Exec. Director, Dist. 2 Community Council, 2169 Stillwater Ave., St. Paul, MN 55119 December 8, 1997 STATE OF MINNESOTA OFFICE OF ADMINISTRA.TIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 98�-�ao Fred Owusu, City Clerk 170 City HaU 15 West Kellogg Boulevard St. Paul, MN 55102 RE: In the Matter of the Patio Service License Held by Biico, inc., d/b/a Biilys on Grand, License No. 18526; OAH Docket No. 11-2111-11343-3 Dear Mr. Owusu: Enclosed and served upon you is the Administrative Law Judge's Findings of Fact, Conclusions and Recommendation in the above-entitled matter. Also enclosed is the official record, with the exception of the tape recording of the hearing, which will be sent to you under separafe cover. Our file in this matter is now being closed. incerely, a�h�« � . `�'l e:� �� BARBARA L. NEILSON Administrative Law Judge Te lep h one: 612/341-7604 BLN:Ir Enctos es cc: rgima D. Palmer Brian D. Alton � n � ' ��.4J ��.�f�'E� DEC 09 �997 C��°� �1"�C�RNEY Prov+ding ImpaRial Hearings for Govemment and Citizens A n Eq ual Opportunity E mployer Administretive Law Section & Administrative Services (612j 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 QY-1ao 11-2111-11343-3 STATE OF MINNESOTA OFFICE OFADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of the Patio Service License Held by Bilco, Inc., d/b/a Billy's on Grand FINDINGS OF FACT. CONCLUSIONS AND License No. 18526 RECOMMENDATION The above-entitled matter came on for hearing before Administrative Law Judge Barbara L. Nei4son on October 21, 1997, at 9:30 a.m. in Room 1504 of the St. Paul City Hall Annex. Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102, appeared on behalf of the Office of License, inspections and Environmental Protection of the City of Saint Paul ("the City"). Brian D. Alton, Attorney at Law, McClay • Alton, P.L.L.P., 951 Grand Avenue, St. Paul, Minnesota 55105, appeared on behalf of the Licensee, Bilco, Inc., d/b/a Billy's on Grand. The record in this matter closed on November 10, 1997, upon receipt of the City's reply brief. This Report is a recommendation, no a final decision. The Saint Paul City Council will make the finaf decision after a review of the record. The City Council may adopt, reject or modify the Findings of Fact, Conclusions and Recommendations contained herein. Pursuantto Saint Paut legislative Code section 310.05(c-1), the City Council shall provide an opportunity to present orai or written argument alieging error in this Report and to present argument related fo any adverse action recommended in this Report. The parties should contact the City Clerk to ascertain the procedure for filing such argument or appearing before the Council. STATEMENT OF ISSUES The issue presented in this matter is whether adverse acfion should be taken against the patio service license held by Biico, inc., dib/a 8iily's on Grand, on the grounds that the Respondent has not fulfilled one of the conditions for the license by obtaining consent for the use of three off-stteet parking spaces. Based an all of the proceedings herein, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. The Respondent, Biico, Inc., d/b/a Biily's on Grand, currently hoids a patio service license (as well as other licenses) for its restaurant located at 857 Grand Avenue in 9Y-�ao St. Paul. The Respondent first obtained ifs patio service license in approximately 1985. Ex. 1. Its current patio senrice license will expire on June 13, 1998. Ex. 8. 2. Billy's on Grand is a fenant in Victoria Crossing East Mail. The East Mall is owned by East Mall Associates, a general partnership comprised of William Wengler and his brofher, James Wengler. Ex. 1; Testimony of W. Wengler and J. Lynden. 3. VC Parking Management Co. is a Minnesota non=profit corporation which was incorporated by Peter J. Quinn in May, 1995. Mr. Quinn is President of the corporation. Ex. E; Testimony of J. Lynden. 4. VC Parking Management Co. is the fenant under a long-term lease for the parking {ot owned by St. Paul's United Church of Christ between Miiton and Victoria Streets and north of the alley between Grand and Summit Avenues. This parking lot is referred to as the "Vic II LoY' or the "Church Lot" Exs. A, 1(attachment) and 12; Testimony of W. Lane, W. Wengier, and J. Lynden. A special condition use permit has been obtained with respect to the Vic 11 parking iot to permit parking to be shared befiveen the United Church of Christ and commercial uses. Testimony of W. Lane. 5. At some time during 1995, Wendy Lane, the City's Zoning Manager, became aware that the Respondent was interested in expanding the size of the patio used to serve customers at Biily's on Grand. Ms. Lane reviewed the RespondenYs request for expansion of the patio service ficense to assess compliance with the City's zoning ordinance. She concluded that the proposed expansion of the patio did not require additional parking spaces under the City's buiiding ordinance, but determined that a tota{ of three parking spaces would be displaced by the new patio construction. Accordingly, she decided that the Respondent wouid be required to obtain three new parking spaces that compfied with the City's requirements and would be designated for use by Respondent. She discussed this requirement with the Respondent, and the Respondent tofd her that it planned to obtain parking in the �c II Lot. Testimony of W. Lane. 6. East Mall Associaies enfered into a Customer Parking License with VC Parking Management Co. for a term that commenced on November 1, 1995, extended initially through October 31, 1996, and continued thereafter from year to year. Under this agreement, East Malf Associates agreed to pay a rate of $320 per month in exchange for the agreement of VC Parking Management that East Mall Associates would be granted a non-exclusive license for its customers to park in the Parking Lot. 8ilfy's on Grand, by Bili Wengler, its President, also entered into a Special Customer Parking License with VC Parking Management Co. for a term that commenced November 1, 1995, extended initially through October 31, 1996, and continued thereafter from year to year. Under this Special Cusfomer Parking License, Biily's on Grand agreed to pay VC Parking Management Co. $150 per month for a term in exchange for a non-exciusive special customer parking license for three parking stalls in the parking lot. Ex. 12' These iicenses have now expired and have not been renewed. Exs. 6-7; Testimony of W. Lane, W. Wengler. , � °��' -\ao 7. Mr. Wengler asked Peter Quinn of VC Parking Management whether he could use three spaces in the Vc II Lot if he could get Mr. Quinn more spaces in that Iot. Mr. Quinn said "absolutely." Accordingly, Mr. Wengler hired an architect and worked with the architect to reconfigure fhe �c II Lot to the acceptable standards of the City. They ultimately designed a new configuration of parking spaces that added approximately twenty spaces to the Vc fl Lot. Mr. Wengier also hired an attorney to assist in obtaining City approval of the site plan for the reconfigured parking fot and put up a�2,000 cash escrow with the consent of VC Parking Management Go. to ensure completion of the site improvements. Testimony of W. Wengler, J. Lynden; Ex. C. 8. On November 14, 1995, Peter Quinn of VC Parking Management consented to fhe use by East Mall Associates as owners of Victoria Crossing East Mall of three parking spaces in the 1ot and agreed that three parking places could be designated to Victoria Crossing East Mall. Ex. A; Attachment to Ex. 1. There has never been a formal revocation or rescission of the November 14, 1995, Consent Agreement by anyone claiming to be an officer of VC Parking Management Co. East Mali Associates has agreed that these three spaces could be used for the Respondent's patio expansion of Billy's on Grand. Testimony of W. Wengler, J. Lynden. 9. By letter dated December 21, 1995, counsel for the Respondent informed Ms. Lane that East Mall Association had arranged for ihree parking spaces in fhe Vic il Lot and that VC Parking Management Co. had consented to the use by East Mali Associates of the three spaces in the lot. Enclosed with the letter was a copy of the November 14, 1995, Consent Agreement between VC Parking Management Co. and East Mall Associates and a copy of an architecf's drawing of the proposed patio plan. Ex. 1. 10. By letter dated February 21, 1996, James A. Stolpestad, President of Exeter Realty Corporation, notified Ms. Lane on Exeter Reaity Corporation letterhead that VC Parking and Billy's on Grand had "not been able to finalize their tentative arrangemenY' for the use of three parking stalls in the Vic fl Parking Lot and requested that the City "piace this matter on hoid until further notice." Ex. 2. 11. By letter dated March 7, 1996, the City notified counsei for the Respondent that no additional petition was required for the expansion of the patio for Billy's on Grand since it would not be larger than the size of the original patio approved in 1985. The City indicated that the loss of three required off-street parking spaces would not be permitted according to the zoning code. Accordingly, the City stated that either three additional 4egai parking spaces had to be obtained or a parking variance had to be granted. The City stated that it wouid approve the license for the patio expansion subject to three conditions. The only condition which is at issue in the current proceeding is the third condition. The City described that condition as follows in its March 7, 1996, letter: A valid lease for three off-street parking spaces �t the Vic II parking lot must be submitted. Although a statement was submitted approving the use of three parking spaces from Peter Quinn, James Stolpestad has informed us �� 9g-\Zo that there is no formal arrangement for the use of three parking spaces. Assuming a lease is submitted, a restriction will be added to the license specifying that the lease for the three parking spaces must remain valid. If the lease is terminated, fhat portion of the newiy expanded patio would need to be removed and the four [sicj off-street parking spaces reesfablished, alternative parking obtained or a parking variance acquired. Ex. 3; Ex. B. 12. In a letter dated March 20, 1996, from City Landscape Architect Tom Beach to Mr. Stoipestad of Exeter Realty Corporation, Mr. Beach noted, inter alia, that the revised site plan for the "Vctoria lI" parking lots showed 178 parking spaces in the "Church" lot and 30 parking spaces in the "Milton Mall" lot, for a total of 208 parking spaces, which was an incsease of 20 parking spaces over the then-existing situation. This increase was the result of reducing the width of the parking spaces to 8.5 feet and removing the gates and booths from the lot. Mr. Beach stated that these additional parking spaces "may be used for the next three years for an expansion of gross floor area or a change in use requiring additional parking as specified in Section 62.103(i) of the Zoning Code." Ex. C. 13. At some time during late 1995 or the first three months of 1996, Mr. Wengler provided Ms. Lane with a copy of the Customer Parking License and Special Customer Parking License referenced in Finding No. 6 above (Ex. 12). 14. At the request of Ms. Lane, the RespondenYs President, Bill Wengier, signed an agreement dated March 28, 1996, which stated that "[t}he extension of service as a result of the renovation of the patio area is subject to the consent for the use of three (3) off-sfreet parking spaces from the VC Parking Management Co. at the Vic {I parking {ot" The agreement further sfated that, "[i]f in the future this condition is not complied with, I [Mr. Wenglerj agree (at my option) to apply for a variance, find three (3) additiona4 parking spaces or restore the patio to its condition prior to its renovation." Ex. 4. 15. After Ms. Lane reviewed Ex. 12 and Mr. Wengler signed Ex. 4, Ms. Lane signed off on the RespondenYs patio expansion appiication. The patio service license expansion was approved by the City during the spring of 1996. Testimony of W. Lane. 16. In a letter dated April 1, 1996, to N{r. Stolpestad, Ms. Lane reiterated that the March 20, 1996, letter sent by Mr. Beach approving the site plan for the Vic il parking lot indicated that an additionaf 20 off-street parking spaces could be obtained by rearranging the lot and that these spaces may be used for expansions or changes in use over the next fhree years. Ms. Lane informed Mr. Stolpestad that, since a lease for three off-street parking spaces in the Vic II parking lot had been granted for the patio expansion for Biily's on Grand, 17 parking spaces remained for new expansions or use changes. Ex. D. The City currently continues to view three spaces in the Vcil Lot as having been allocated to Billy's on Grand. Testimony of W. Lane. _,! 98'-�a� 17. in approximately December of 9996, James lynden, who has served in the past as counsel for Bilco and East Mall Associates, received for the first time a copy of a Purchase, Assignment and Termination Agreement that had been entered into on April 28, 1995, by 917 Limited Partnership (a Minnesota Iimited partnership that owns the Victoria Crossing Milton Mall and the parking lots located north and east of the Milfon Mall), Montreal Company (a company which had entered info a letter of intent to purchase the �ctoria Crossing West Mall, Q& S Partnership (a general partnership with two partners, Peter Quinn and James Stolpestad), VC Parking Management Co. (described in the Agreement as a Minnesota non-profit parking management company that was created by representatives of businesses and organizations located in the Grand and Victoria area of St. Paul), and APCOA, inc., a Delaware corporation and national parking management company that operated the Vic II North Lot and the Vic II East Lot at the time. Ex. F. Mr. Lynden had previously learned of the existence of this Agreement. However, due to a confidentiality provision in the Agreement, he lacked detailed knowledge of its terms and had not seen a copy of the Agreement until December, 1996, after Mr. Stolpestad waived the confidentiality provision. Mr. Lynden provided East Mall Associates with a copy of the Purchase, Assignment and Termination Agreement in approximately December of 1996. Ex. F; 7estimony of W. Wengler and J. Lynden. 18. Pursuant to the Purchase, Assignment and Termination Agreement, Q& S purchased from APCOA certain equipment and improvements iocafed on the Vic II North Lot, the �c II East Lot, and the Church Lot, and VC Parking Management Co. received an assignment of APCQA's rights, title and interest in those lots and assumed APGOA's obligations and liabilities under a lease agreement with St. Paui's United Church of Christ dated September 24, 1994, subject to obtaining the Church's written consent to the assignment. The Agreement expressiy states that the parking lot to be operated by VC Parking Management "shail be operated as a free parking facility solely for (i) Church functions, (ii) customers of those business and property owners or tenants in the business area surrounding the parking lot, and (iii) customers of the East Mall." Ex. F at 3 (emphasis added). 19. At some point prior to January 22, 1997, Mr. Wengler contacted Ms. Lane and stated that he wanted to make sure that there would not be a problem with the RespondenYs patio license during the summer of 1997. In response, Ms. Lane sent Mr. Wengler a letter dated January 22, 1997, which stated, inter alia, that the third condition for the patio service license was deemed to be satisfied based on the information Mr. Wengier had provided the City: "The third condition was accepted based on the evidence you submitted. While I understand there may be a dispute about the lease agreement, we expect you to resolve any differences. lf they are resolved against you, you wilf be in violation of your license condition. However, unless we receive dispositive evidence to the contrary, we consider condition number tfiree to be met." Ex. 5. Mr. Weng{er submitted some information to Ms. Lane following his receipt of the January 22, 1997, letter which supported his view that he had the right to use three spaces in the Vic II Lot. Ms. Lane cannot recail what information Mr. Wengler submitted. Testimony of W. Lane. 4 q� 20. By letter dated April 10, 1997, Mr. Stolpesiad notified the City on Exeter Holdings L.L.C. letterhead that Mr. Wengler had never had a lease for three off-street parking spaces at the Vc il parking lot and that the only arrangemeni Mr. Wengler had had was a one-year license which expired in October of 1996 and had not been renewed. Mr. Stolpestad further stated that Mr. Wengler had had a one-year Iicense to use the Uc 11 parking lot for his other tenants of the East Mall but that also had expired in October, 1996, and had nof been renewed. Mr. Stolpestad stated that he believed, based on "past attempts to deal with [Mr. Wengler]" that it would be "highly urilikely that we will reach any agreement with Mr. Wengler concerning his use of the Vic ll parking lot." Ex. 6. 21. By Ietter dated June 3, 1997, Mr. Sto{pestad notified the City on Exeter Holdings letterhead that Mr. Wengler stili did not have a lease for the three Vic II parking spaces, and stated that, "[b]ecause we have been unabfe to negotiate a new agreement with Mr. Wengier concerning the vc II parking lot, we will soon be taking formal steps to exclude his tenants and customers from using this facility." Mr. Stolpestad enclosed a copy of a letter sent to Mr. Wengler by Mr. Stolpestad and Peter Quinn on July 31, 1996, which asserted that Mr. Wengier's license arrangement for the three parking spaces in the Vic {I parking lot would be terminafed as of October 31, 1996. The July 31, 1996, letter indicated that VC Parking Management was wiNing to negotiate new parking ficenses with both East Mall Associates and Biily's on Grand in which both entities would pay their fair shares of the expenses incurred to secure tFe fot for customer parking. Ex. 7 and attachment. 22. The City sent the Respondent a Notice of Vio(ation dated July 24, 1997. The letter notified the Respondent that the Director of the City's Office of License, Inspections and Environmental Protection would recommend that adverse action be taken against the patio service license held by the Respondent at Billy's on Grand based upon an assertion that none of the three condit+ons of the e�ended patio service license had been satisfied. The letter informed the Respondent of its right to request an evidentiary hearing before an Administrative Law Judge. Ex. 9. 23. At the hearing, the parties stipulated that the only issue presented in this case was whether the Respondent had complied with the third condition placed on the license. 24. The Respondent submitted a timely request for hearing, and this proceeding was commenced. Ex. 10. 25. By letter dated October 17, 1997, Mr. Stolpestad notified the City on Exeter Holdings L.L.C. letterhead that nothing had changed with respect to Billy's Restaurant and the Vc II parking lot, and that he had not had any contact with Mr. Wengier in many months. Ex. 11. 26. The City does not require that the three parking spaces be marked with a sign declaring that they are for the sole use of customers of-Billy's on Grand but does require that there be an agreement indicating that the Respondent has the abi4ity to use three specific spaces. Testimony of W. Lane. � � �� -�a�o Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the foilowing: CONCLUSIONS 1. The Saint Paul City Council and the Administrative Law Judge have jurisdiction in this mafter pursuant fo Minn. Stat. §§ 14.55 and 340A.415 and Sainf Paui Legislative Code §§ 310.05 and 310.06. � 2. The Notice of Hearing issued by tMe City was proper and all applicable substantive and procedural requirements have been fuifilled. 3. The City bears the burden in this matter of proving by a preponderance of the evidence that adverse action is warranted with respect to the patio service license at issue. 4. Chapter 310 of the Saint Paul Legislative Code contains general provisions relating to licenses issued by the City. Section 310.06(b)(5) of the Saint Paul Legisiative Code provides that adverse action may be taken when "[t]he licensee or applicant has failed to comply with any condition set forth in the ficense, or set forth in the resolution granting or renewing the license.° 5. Sections 62.103 and 62.104 of the Saint Paul Legislative Code contain a portion of the zoning code relating to parking requirements and off-street parking facifity standards and design. Section 62.103(e), which governs changes in the use of parking areas, provides as follows: Designated or identifiabie existing off-street parking facilities, accessory to one (1) or more principal uses, structures or facilities, may be changed to another use when the remaining off-street parking meeis the requirements that this section would impose on new buildings for ail facilities, structures or uses, including the new use. When the remaining off-street parking does not meet such requirements, other off-street parking shall be substituted for the parkingsoace changed to another use, and additional off-street parking shall be provided for the new use in accordance with the requirements of this section. (Emphasis added.) Section 62.104(3), which governs nonresidential parking facility locations, requires in this instance that off-street parking be obtained "within three hundred (300) feet of the building it is intended to serve ...." 6. The City has fai4ed to establish by a preponderance of the svidence that the Respondent has not obtained consent from VC Parking Management Co. for the use of three off-street parking spaces in the Vic 11 parking lot. 7. The foregoing Conclusions are made for the reasons set forth in the attached Memorandum, which is hereby incorporated in these Conclusions by reference. 7 `1 �' -\ao 8. Citations to exhibits or testimony in the foregoing Findings of Fact does not mean that all testimony or exhibits that support the Findings have been cited. Based upon the foregoing Conclusions, the Administrative Law Judge makes the foliowing: RECOMMENDATION 1T 1S HEREBY RESPECTFULLY RECOMMENDED: that the Saint Paul City Council not fake adverse action against the patio service license of Bilco, Inc., d/b/a Billy's on Grand. Dated this �'"� day of December, 1997 «��rr�..n.... l. . tJ cr-Q S vvt_ BARBARA L. NEILSON Administrative Law Judge NOTICE The City is respectfully requested to provide a copy of its final decision to the Administrative Law Judge by first class maii. Reported: Tape recorded (2 tapes). MEMORANDUM The primary issue in this case is whether or not the Respondent has satisfied the third condition placed on the extension of its patio service at Billy's on Grand. The resolution of this issue hinges upon the proper interpretation of the requirement that the Respondent obtain "consent for the use of three (3) off-street parking spaces from the VC Parking Management Co. at the Vc il parking lot." Ex. 4. The parties submitted conflicting evidence and argument concerning this issue. Unfortunately, neither party chose to call Peter Quinn or James Stolpestad, who obviousfy are at the center of the dispute between the parties and would have been able to cast considerable light on the status of the parking arrangement between VC Parking Management Co. and Biliy's on Grand. The City asserts that the Respondent's patio service license should be revoked or suspended until such time as the Respondent obtains a parking variance; provides a valid and acceptable lease, agreement, or consent for three parking spaces dedicated to use by Billy's on Grand or other acceptable parking; or restores the patio to its condition prior to expansion in 1996. The City contends, and the Res�ondent agrees, that the customer parking licenses (Ex. 12) upon which the City apparentiy relied in granting the patio service extension have expired and have not been renewed. The City further argues that the November 14, 1995, agreement behveen VC Parking Management Co. and East Mall � 9F- �ao Associates (Ex. A) in which VC Parking consented to the use by East Mall Associates as owners of Victoria Crossing East Mall of three parking spaces in the Vic II parking lot (hereinafter referred to as the "Consent AgreemenY') is inadequate evidence of an agreement to designate three spaces for Biliy's on Grand because it does not state a term and does nof specifically designate the spaces for Billy's on Grand. The City apparently aiso contends that fhe Consent Agreement is invalid in light of correspondence received from James Sfolpestad. The Cify further argues that Saint Paul Legislative Code § 62.103(e) requires that "the business which is changing the use of certain parking spaces must replace the parking° and thereby apparentiy asserts that consent supplied to East Mall Associates for the use of certain spaces is insufficient to allow the spaces to be allocated to Bi{!y's on Grand. Reply Brief at 1. The City further points out that correspondence from James Stolpesfad, whom the City Zoning Manager understands to be jointly involved with Peter Quinn as a co-owner in VC Parking Management, indicates there is no arrangement to permit Billy's on Grand to use three spaces in the Vic II parking lot (Exs. 2, 6, 7, and 11).� The City asserts that it has no interest in taking sides in the apparent dispute between Mr. Stolpestad and the Respondent, but contends that, under these circumstances, it was justified in requiring the submission of further documentation or other information from the Respondent supporting its assertion that three parking spaces in the Vic II lot were designated for Billy's on Grand. After careful consideration of the record as a whole, the Administrative Law Judge has concluded that the City has not borne its burden to show by a preponderance of the evidence that adverse action against the RespondenYs patio service license is warranted. Under basic contract law principles, the Consent Agreement is a contract between VC Parking Management and Easf Mail Associates. Mr. Wengler testified without dispute that he offered to hire a archifect to reconfigure the lot and obtain additional parking spaces in exchange for the promise that VC Parking Management would aliow East Mall Associates the use of three parking spaces in the Yc il Lot, and that Peter Quinn, President of VC Parking Management Co., accepted that offer. The contract was supported by ample and valuabie consideration. lt is evident that Mr. Wengier in fact hired an architect to assist in redesigning the parking lot as he had promised, and that the actions resulted in the addition of 20 parking spaces to the Vic {I Lot, a considerable benefit to VC Parking Management. It is also undisputed that Mr. Wengler hired an attorney to assist in obtaining site approval for the improvements to the �c 11 Lot and submitted a$2,00� cash escrow to ensure that the work was performed. There is also evidence that Mr. Wengler relied upon At the hearing, the Respondent objected to the receipt into evidence of Mr. Stoipestad's letters as hearsay and also objected that it had not received any advance notice that the City would seek to rely upon information obtained from Mr. Stolpestad. The letters were received in evidence based upon the Judge's view that admission wouid be consistent with § 310.05(e) of the Saint Paul Legislative Code which provides that the "hearing examiner ... shall rece+ve and give weight to evidence, including hearsay evidence, which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs." The Respondent was offered an opportunity to depose Mr. Stolpestad or to reconvene the hearing at a later date to hear his testimony, buE deciined to do so. � R8-�ao the Consent Agreement to his detriment by incurring these costs, submitting the Consent Agreement to the City as evidence of an agreement to obtain replacement parking spaces, and proceeding with his plans to renovate the pat+o at Bi{4y's on Grand. Although the Gonsent Agreement ifself does nof specify a duration, it does include a specific reference to the fact thaf VC Parking Management Co, is the tenant under a fong- term lease for the Uc II Lot and thereby reasonably implies that the duration of the Consent wi(I be the same as that of the long-term lease. The Consent issued to East Mali Associates for the use of three specific parking spaces in the Vic I I Lot was executed as a separate document a few weeks after the customer parking licenses were executed, and thus would appear to be unaffected by the expiration of those licenses. Moreover, there is no evidence that the Consent was ever formally rescinded or revoked by anyone purporting to act as an officer of VC Parking Management. Even though the Consent Agreement as written runs to the benefit of East Mall Associaies, East Mali Associates has agreed that the spaces should be designated soiely for customers of Billy's on Grand. As a result, there will be not be competing claims on these spaces by other tenants of East Mai{ Associates, as the City contends. Contrary to the City's assertion, section 62.103(e) of the Saint Paul Legislative Code merely states that "other off-street parking shaN be substituted for the parking space changed to another use," and thus does not mandate that only the particular business entity invoived may arrange for the off-street parking. The fact that Ms. Lane apparentiy disregarded the Consent Agreement at the time the license was issued in spring of 1996 and chose merely to rely upon tlie customer parking licenses that were in effect at that time does not decide the issues presented in this case, since the evidence provided at the hearing indicates that the Consent Agreement currently remains in effect, runs to the benefit of Billy's on Grand, and thus merits reexamination. Contrary to the City's argument, neither the zoning ordinance nor Mr. Wengier's March 28, 1996, agreement with the City require that the Respondent be permitted to rely upon the Consent Agreement only if there is a judicial determination that the document is binding and irrevocabie. There is insufficient evidence in the record in this proceeding from which the Administrative Law Judge could conclude that Mr. Stolpestad had authority to act on his own on behalf of VC Parking Management Co. and that the Consent Agreement has somehow been revoked by virtue of his apparent disagreement with Mr. Wengler. Mr. Stolpestad was in New York on the day of the hearing and did not testify. The Ciry did not take his depos+tion to preserve his testimony or request a confinuance or an additional day of hearing in order to permit him to testify at the hearing. No definitive evidence was provided relating to the nature of the role Mr. Stolpestad plays in VC Parking Management Co. Mr. Stolpestad apparently has had some responsibility in the Company in the past, as evidenced by the fact that his name and signature appears with that of Mr. Quinn on the one document in the record that is written on the letterhead of VC Parking Management Co. (attachment to Ex. 7) and VC Parking Management uses the same address as Exeter Realty Corporation. However, the City has not established in the record of this case whether Mr. Stoipestad is currently or has previously been an officer in the corporation, 10 q� -1ao whether he has proper aufhority to act on his own on behalf of VC Parking Management Co., or whether he may properly override the actions taken by Mr. Quinn as President of the corporation. The letters Mr. Stolpestad wrote to Ms. Lane expressing the view that the Respondent did not have a valid right to use three parking spaces in the Vic II lot were written by Mr. Stolpestad on letterhead from Exeter Reaity Corporation or Exeter Hoidings L.t.C., not VC Parking Management Co. Moreover, Mr. Stolpestad's statement in his letter of February 21, 1996, that the parties had "not been able to finalize their tentative agreement" does not make sense in light of the parties' ent'ry into the customer parking licenses in November, 1995. In view of these uncertainties and inaccuracies, the City should not properly view the letters sent by Mr. Stoipestad as "dispositive evidence" (see Eu. 5) that the third condition of licensure had not been satisfied. Mr. Stolpestad's view of the situation is apparently at odds with that of Peter Quinn, who signed the Consent Agreement on behalf of VC Parking Management. There has been no showing by the City that Mr. Quinn lacked the authority to enter into the Consent with East Mall Associates. To the contrary, the undisputed evidence provided by the Respondent demonstrates that Mr. Quinn incorporated VC Parking Management Co., serves as the company's President, and in fact has authority to act on behalf of VC Parking Management Co. in addition, the Purchase, Assignment and Termination Agreement entered into in April, 1995, gives the customers of East Mall an unrestricted right to park anywhere on the vc II lot. The Purchase, Assignment and Termination Agreement was signed both by Mr. Quinn (on behalf of VC Parking Management Co.) and by Mr. Stolpestad (on behalf of Montreal Company and 917 Limited Partnership). Thus, by contract, VC Parking Management Co. is required to operafe the Vic II Lot as "a free parking facility solely for ... (iii) customers of the East Mafi:' Ex. F. Silly's on Grand is located in the East Ma11. Accordingly, customers of Billy's on Grand cannot be excluded from parking in the Vic il Lot. Because the terms of the Purchase, Assignment and Termination Agreement were confidential and were not disclosed to Mr. Wengier and his counsel until approximately December, 1996, the City shouid not fault Mr. Wengler for failing to argue at the time the license was granted in March, 1996, that the Purchase, Assignment and Termination Agreement satisfied the zoning requirements. The Administrative Law Judge has concluded that the Consent Agreement providing East Mall Associates three spaces in the Vic II Lot, the subsequent decision by East Mall Associates that these three parking spaces shail be solely for customers of Biliy's on Grand, and the grant of unrestricted parking rights to customers of the East Mall contained in the Purchase, Assignment and Termination Agreement, taken together, satisfy the third condifion placed on the RespondenYs license. The Administrative Law .fudge thus respectfu{ly recommends that no adverse action be taken against the patio service license of Biico, Inc., d/b/a Billy's on Grand. B.L.N. - 11 C A � 5 :�m Mr. Fred.Owusu, City Clerk 170 City Hall - 15 West Kellogg Boulevazd Saint Paul, MN 55102 VC PARKING MANAGEMENT CO. 7anuary 15, 1998 a �� a � r2ECEIVED JAN 161998 vi?Y CLERK gC-�ao C�unc� �� i�;:�: 1 � `J � .��," Jj-%!�� ,.,� tJJ1 Re: In the Matter of the Patio Service License Held by Biico, Inc., d/b/a Billy's on Crrand License No. 18526, OAH Docket No. 11-2111-11343-3 Dear Mr. Owusu: �'�'e aze writing about the decision of the Administra:iva Law 3udge in the above-referenced matter which adversely affects us financially. Even though we are repeatedly mentioned in the decision that was filed with your office, we were not �iven a» op�ortuni to ap�ar at the administrative hearin� or present a written statement to the Administrative Law Jud�e. We think basic principles of fairness and due process require that our side of this dispute be included in the record and be given due consideration. We therefore request that the City Council refer this matter back to the Administrative Law Judge for reconsideration of her decision in light of the information contained in this letter. There are several factual matters we would like to bring to the attention of the Administrative Law Judge. First, we would like to clarify who owns and speaks for VC Parking Management Co. Throughout her decision and supporting memorandum, the Administrative Law Judge had difficulty understanding the role of James A. Stolpestad in VC Parking Management Co. and seemed to disregard all of his correspondence that was introduced at the hearing by the City of Saint Paul. In fact, Mr. Stolpestad owns 50% of VC Parking Management Co. and is its Secretary-Treasurer and Peter J. Quinn owns 50% of the company and is its President. All decisions of the company are required to be made by the unanimous agreement of Mr. Quinn and Mr. Stolpestad. Mr. Quinn signed the incorporation papers which were prepared and filed by Mr. Stolpestad who is an attorney. Moreover, the letters written by Mr. Stolpestad that are referred to in the decision and supporting memorandum (i.e., the February 21, 1996 letter on Exeter Realty Corporation letterhead and the April 10, 1997, 7une 3, 1997, and October 17, 1997 letters on Exeter Holdings LLC letterhead) were written on behalf of VC Parking Management Co. Exeter Holdings LLC is a management company that customazily communicates with third parties on behalf of the various buildings and companies it represents using its own letterhead. If we had been able to participate in the hearing, we could have clarified these facts for the Administrative Law 7udge, as she herself acknowledged in the first paragraph of her memorandum. We believe this clarification alone may have led the Administrative Law Jud�e to a different decision. Second, the Administrative Law Judge appears to have based much of her decision on an incorrect interpretation of a sin�le document. In the fall of 1995, VC Parkin� Management Co. issued two separate parking licenses to William T. Wengler, effective November l, 1995 -- a Customer Parking License for East Mall Associates and a Special Customer Parking License for Billy's Restaurant and Bar. 1080 Montreal Avenue, Suite 400, Saint Paul, MN 55'116 VC PARKING MANAGEMENT CO. l�' �a Mr. Fred Owusu, City Clerk Page 2 As the Administrative Law Judge accurately noted in her Finding No. 6, "These Zicenses have now expired and have not been renewed' (emphasis added), which Mr. Wengler himself acknowledged at the hearing, according to the second paragraph of the supporting memorandum. These simple facts should have ended the discussion. But the Administrative Law Judge then focused on a short letter signed by Mr. Quinn on November 1 l, 1995, and concluded that it was a sepazate "Consent Agreement", providing Billy's with three parldng spaces in the lot owned by St. Paul's Church, that was never terminated by VC Parking Management Co. However. this November 11. 1995 Zetier was nothin�more than a reference to the earlier parking Zicenses and was not a new a�reement between the parties. The relevant agreements were the parking licenses, which everyone agreed had expired. Third, the Administrative Law Judge drew entirely improper inferences from the Purchase, Assignment, and Termination Agreement between VC Pazking Management Co. and APCOA, Inc. -- in which VC Parking Management Co. agreed to acquire APCOA's leasehold interest in the Church parking lot. This agreement required that the lot be operated as a"free parking facility". This meant that VC Parking Management could not charge customers for parking but could assess business or• buildinQ owners in the area for the costs of�eratin�and maintaining the parking lot. This is what APCOA and VC Parking Management Co. had in mind when the Purchase, Assignment, and Termination Agreement was signed. It should be noted that neither Mr. Wengler nor his entities were parties to or third party beneficiaries of this agreement. Indeed. Mr. Wen�ler himself a�parently aQreed with our interpretation of the Purchase. Assimment. and Termination A�reement because he allowed himself to be assessed�'or such o�eratinQ costs as consideration for receivinQ his iwo parkinQ licenses for the,Zear they were in e�'fect. The dispute between VC Parking Management Co. and Mr. Wengler that is reflected in the Administrative Law Judge's decision is not about his patio or three parking spaces in the Church parking lot. Instead, it is about Mr. Wengler's failure to contribute his fair share to the costs of maintaining and operating the Church parkin� lot which serves the entire Grand and Victoria area, inc]udina his customers. The two of us spent approximately $225,000 of our own money to buy out APCOA in June of 1995 and refurbish the Church parking lot for customer parkin� and since then have spent approximately $3,500 per month to cover operating and maintenance costs. Mr. Wengler's contribution to the buyout was zero and his monthly contribution to operating costs since Cctober of 1996 has also been zero, even though his customers have enjoyed the use of the parking lot and Mr. Wengler has reaped the economic rewards of their patronage. We have been trying to enga�e Nlr. Wengler in a discussion about this matter for over a year without success. We are willing to keep trying. But unless and until Mr. Wengler is willing to talk to us and agree to pay his fair and equitable share of these costs, VC Parking Management Co., without havin� an, � inpr+t into the decision, should not be forced to allow Mr. Wengler to use the Church parking lot for his required three parking spaces in order to maintain his patio license. We would have no objection if he were to find those spaces elsewhere. 1080 Montreal Avenue, Suite 400, Saint Paul, MN 55'116 q.8' -\a� VC PARKING MANAGEMENT CO. Mr. Fred Owusu, City Clerk Page 3 We request that the City Council refer this matter back to the Administrative Law 7udge for a fair hearing of our side of this dispute. Thank you. Very truly yours, L�'*�''�'" • � Peter J. Q President � � James A. Stolpestad Secretary-Treasurer cc: Mr. Phillip Byrne, Assistant City Attorney Mr. Brian D. Alton, Attorney at Law '1080 Montreat Avenue, Suite 400, Saint Paut, MN 55116 � Council File # 1 l ao O R� G� IVA� , RESOLUTION Green sheet #� a1 � Presented By Re£erred To ,INT U , MINNESOTA `—t Committee: Date RESOLVED, that an administrative hearing was held pursuant to proper notice concerning the patio service license and all other licenses held by Bilco, Inc. dba Billy's on Grand, for its licensed premises at 857 Grand Avenue in Saint Paul; and, be it FURTHER RESOLVSD, that the Report of the Administrative Law Judge (ALJ), dated December 8, 1997, is expressly ratified and adopted, and the Findings of Fact and Conclusions contained in that Report are hereby adopted as the written findings and conclusions of the Council in this matter and incorporated herein by reference. The Recommendation of the ALJ that no adverse action be taken against the patio service license is adopted, based on such findings, conclusions and recommendation; and, be it FURTHER RESOLVED, that this determination does not and is not intended to resolve, adjudicate or decide any issue, fact or controversy between the licensee (including William and James Wengler) and any owner or owners of property adjacent or near to the licensed premises or on which any part of the licensed premises is or is claimed to be located (including Peter Quinn, James Stolpestad and VC Parking Management Co.). This Resolution merely determines that there shall be no adverse action against the licensee. � 2/��f OR1GfNAL °Ig• lao This Resolution is based on the record of the proceedings before the ALJ, including the hearing on October 21, 1997, the documents and exhibits introduced therein, communications to the Council and included in the record, and the proceedings and deliberations of the Council in open session on January 2S, 1998. A copy of this Resolution, as adopted, shall be sent by first class mail to the Administrative Law 3udge, Barbara L. Neilson, and to the licensee, William Wengler. 14 Requested by Department of: Adoption Certified by Council Secretary By: /� � Approved by Mayo ate _l� By: By: Form Approved by Cit Attorney B Y � 5 f 1� Approved by Mayor for Submission to Council &y: Adopted by Council: Date �,��qq� Qp -1 �.o GREEN SHEET Anderson February 18, 1998 TOTAL # OF StGPJATURE PAGES No 62198 u�� u��— ❑�.,�, ❑��_ ❑ Fmxa.ta�xxeFSOw. ❑ w�ucu�mrvi�ccro ❑ r�vortlw��easuwp ❑ (CL1P ALL LOCATIONS POR SIGNATURE) Finalizing City Council action taken January 28, 1998 concerning adverse action against licenses held by Billy's On Grand, 857 Grand Avenue. PLANNING COMMISSION CIB CAMMITfEE CIVIL SERVICE COMMISSION IF IF OF TRANSACTION SOURCE H� this persoNfirm e+erworketl under a cant2ct for this department9 VES NO Fias ihis pereoNfirm ever heen a cilY emDloYee'+ YES NO Does this peicoNfirm P�ss a slali iwt rwm�allyP�se�ed bY anY curtmt oilY emD�%'ee4 YES NO Is Mis f��rm a tarpMetl veMa? YES NO COET/REVENUEBUDQETED(CIRCLEON� ACTIVI7Y NUMBER YES NO � � -1ao Interdepartmental Memorandum CITY OF SAINT PAUL DATE: February 3, 1998 TQ: Nancy Anderson Assistant Council Secretary 310 City Hall FROM: Peter Pangborn Paralegal 400 City Hall RE: Consent Agenda - February 18, 1998 1. Billy's on Grand Nancy: Attached is the resolution identifying that no penalty was imposed by the City Council on Billy's on Grand. Please schedule this matter for the Consent Agenda for the council hearing on Wednesday, February 18, 1998. Thanks. Sincer y, %� Peter P. Pang orn Q�s0US1Ci� �258'�tC�? ��^=`2C �� OFFICE OF Tf� CITY ATTORNEY p` � PegBirk,Ciry - `6 �,� CITY OF SAINT PAUL Norm Coleman, Mayor 7anuary 6, 1998 Brian D. Alton Attorney at Law McClay, Alton, P.L.L.P. 951 Crrand Avenue Saint Paul, Minnesota 55105 CivilDiv"uion zi 400CityHall Telephone:612266-8770 15 West KeZlogg Btvd Facsimile: 612 298-5619 Saint Paul, Minnesota 55702 NOTICE OF COUNCIL HEARING COdYIC� �� ± vniV C � ��Q� Re: Licenses held by Bilco, Inc. d/b/a Billy's on Grand for the premises located at 857 Grand Ave. in St. Paul License ID No.: 18526 File Number: G97-0318 Dear Mr. Alton: Please take notice that a hearing on the report of the Administrative Law Judge conceming the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, January 28,1998, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey Counry Courthouse. You have the opportunity to file excepfions to the report with the City Clerk at any time during normal business hours. You may also present oral or written azgument 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 judgement and discretion. Sincerely, � �� Virginia. D. Palmer Assistant City Attorney ca Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP " Tim Dornfeld, Exec. Director, Dist. 2 Community Council, 2169 Stillwater Ave., St. Paul, MN 55119 December 8, 1997 STATE OF MINNESOTA OFFICE OF ADMINISTRA.TIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 98�-�ao Fred Owusu, City Clerk 170 City HaU 15 West Kellogg Boulevard St. Paul, MN 55102 RE: In the Matter of the Patio Service License Held by Biico, inc., d/b/a Biilys on Grand, License No. 18526; OAH Docket No. 11-2111-11343-3 Dear Mr. Owusu: Enclosed and served upon you is the Administrative Law Judge's Findings of Fact, Conclusions and Recommendation in the above-entitled matter. Also enclosed is the official record, with the exception of the tape recording of the hearing, which will be sent to you under separafe cover. Our file in this matter is now being closed. incerely, a�h�« � . `�'l e:� �� BARBARA L. NEILSON Administrative Law Judge Te lep h one: 612/341-7604 BLN:Ir Enctos es cc: rgima D. Palmer Brian D. Alton � n � ' ��.4J ��.�f�'E� DEC 09 �997 C��°� �1"�C�RNEY Prov+ding ImpaRial Hearings for Govemment and Citizens A n Eq ual Opportunity E mployer Administretive Law Section & Administrative Services (612j 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 QY-1ao 11-2111-11343-3 STATE OF MINNESOTA OFFICE OFADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of the Patio Service License Held by Bilco, Inc., d/b/a Billy's on Grand FINDINGS OF FACT. CONCLUSIONS AND License No. 18526 RECOMMENDATION The above-entitled matter came on for hearing before Administrative Law Judge Barbara L. Nei4son on October 21, 1997, at 9:30 a.m. in Room 1504 of the St. Paul City Hall Annex. Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102, appeared on behalf of the Office of License, inspections and Environmental Protection of the City of Saint Paul ("the City"). Brian D. Alton, Attorney at Law, McClay • Alton, P.L.L.P., 951 Grand Avenue, St. Paul, Minnesota 55105, appeared on behalf of the Licensee, Bilco, Inc., d/b/a Billy's on Grand. The record in this matter closed on November 10, 1997, upon receipt of the City's reply brief. This Report is a recommendation, no a final decision. The Saint Paul City Council will make the finaf decision after a review of the record. The City Council may adopt, reject or modify the Findings of Fact, Conclusions and Recommendations contained herein. Pursuantto Saint Paut legislative Code section 310.05(c-1), the City Council shall provide an opportunity to present orai or written argument alieging error in this Report and to present argument related fo any adverse action recommended in this Report. The parties should contact the City Clerk to ascertain the procedure for filing such argument or appearing before the Council. STATEMENT OF ISSUES The issue presented in this matter is whether adverse acfion should be taken against the patio service license held by Biico, inc., dib/a 8iily's on Grand, on the grounds that the Respondent has not fulfilled one of the conditions for the license by obtaining consent for the use of three off-stteet parking spaces. Based an all of the proceedings herein, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. The Respondent, Biico, Inc., d/b/a Biily's on Grand, currently hoids a patio service license (as well as other licenses) for its restaurant located at 857 Grand Avenue in 9Y-�ao St. Paul. The Respondent first obtained ifs patio service license in approximately 1985. Ex. 1. Its current patio senrice license will expire on June 13, 1998. Ex. 8. 2. Billy's on Grand is a fenant in Victoria Crossing East Mail. The East Mall is owned by East Mall Associates, a general partnership comprised of William Wengler and his brofher, James Wengler. Ex. 1; Testimony of W. Wengler and J. Lynden. 3. VC Parking Management Co. is a Minnesota non=profit corporation which was incorporated by Peter J. Quinn in May, 1995. Mr. Quinn is President of the corporation. Ex. E; Testimony of J. Lynden. 4. VC Parking Management Co. is the fenant under a long-term lease for the parking {ot owned by St. Paul's United Church of Christ between Miiton and Victoria Streets and north of the alley between Grand and Summit Avenues. This parking lot is referred to as the "Vic II LoY' or the "Church Lot" Exs. A, 1(attachment) and 12; Testimony of W. Lane, W. Wengier, and J. Lynden. A special condition use permit has been obtained with respect to the Vic 11 parking iot to permit parking to be shared befiveen the United Church of Christ and commercial uses. Testimony of W. Lane. 5. At some time during 1995, Wendy Lane, the City's Zoning Manager, became aware that the Respondent was interested in expanding the size of the patio used to serve customers at Biily's on Grand. Ms. Lane reviewed the RespondenYs request for expansion of the patio service ficense to assess compliance with the City's zoning ordinance. She concluded that the proposed expansion of the patio did not require additional parking spaces under the City's buiiding ordinance, but determined that a tota{ of three parking spaces would be displaced by the new patio construction. Accordingly, she decided that the Respondent wouid be required to obtain three new parking spaces that compfied with the City's requirements and would be designated for use by Respondent. She discussed this requirement with the Respondent, and the Respondent tofd her that it planned to obtain parking in the �c II Lot. Testimony of W. Lane. 6. East Mall Associaies enfered into a Customer Parking License with VC Parking Management Co. for a term that commenced on November 1, 1995, extended initially through October 31, 1996, and continued thereafter from year to year. Under this agreement, East Malf Associates agreed to pay a rate of $320 per month in exchange for the agreement of VC Parking Management that East Mall Associates would be granted a non-exclusive license for its customers to park in the Parking Lot. 8ilfy's on Grand, by Bili Wengler, its President, also entered into a Special Customer Parking License with VC Parking Management Co. for a term that commenced November 1, 1995, extended initially through October 31, 1996, and continued thereafter from year to year. Under this Special Cusfomer Parking License, Biily's on Grand agreed to pay VC Parking Management Co. $150 per month for a term in exchange for a non-exciusive special customer parking license for three parking stalls in the parking lot. Ex. 12' These iicenses have now expired and have not been renewed. Exs. 6-7; Testimony of W. Lane, W. Wengler. , � °��' -\ao 7. Mr. Wengler asked Peter Quinn of VC Parking Management whether he could use three spaces in the Vc II Lot if he could get Mr. Quinn more spaces in that Iot. Mr. Quinn said "absolutely." Accordingly, Mr. Wengler hired an architect and worked with the architect to reconfigure fhe �c II Lot to the acceptable standards of the City. They ultimately designed a new configuration of parking spaces that added approximately twenty spaces to the Vc fl Lot. Mr. Wengier also hired an attorney to assist in obtaining City approval of the site plan for the reconfigured parking fot and put up a�2,000 cash escrow with the consent of VC Parking Management Go. to ensure completion of the site improvements. Testimony of W. Wengler, J. Lynden; Ex. C. 8. On November 14, 1995, Peter Quinn of VC Parking Management consented to fhe use by East Mall Associates as owners of Victoria Crossing East Mall of three parking spaces in the 1ot and agreed that three parking places could be designated to Victoria Crossing East Mall. Ex. A; Attachment to Ex. 1. There has never been a formal revocation or rescission of the November 14, 1995, Consent Agreement by anyone claiming to be an officer of VC Parking Management Co. East Mali Associates has agreed that these three spaces could be used for the Respondent's patio expansion of Billy's on Grand. Testimony of W. Wengler, J. Lynden. 9. By letter dated December 21, 1995, counsel for the Respondent informed Ms. Lane that East Mall Association had arranged for ihree parking spaces in fhe Vic il Lot and that VC Parking Management Co. had consented to the use by East Mali Associates of the three spaces in the lot. Enclosed with the letter was a copy of the November 14, 1995, Consent Agreement between VC Parking Management Co. and East Mall Associates and a copy of an architecf's drawing of the proposed patio plan. Ex. 1. 10. By letter dated February 21, 1996, James A. Stolpestad, President of Exeter Realty Corporation, notified Ms. Lane on Exeter Reaity Corporation letterhead that VC Parking and Billy's on Grand had "not been able to finalize their tentative arrangemenY' for the use of three parking stalls in the Vic fl Parking Lot and requested that the City "piace this matter on hoid until further notice." Ex. 2. 11. By letter dated March 7, 1996, the City notified counsei for the Respondent that no additional petition was required for the expansion of the patio for Billy's on Grand since it would not be larger than the size of the original patio approved in 1985. The City indicated that the loss of three required off-street parking spaces would not be permitted according to the zoning code. Accordingly, the City stated that either three additional 4egai parking spaces had to be obtained or a parking variance had to be granted. The City stated that it wouid approve the license for the patio expansion subject to three conditions. The only condition which is at issue in the current proceeding is the third condition. The City described that condition as follows in its March 7, 1996, letter: A valid lease for three off-street parking spaces �t the Vic II parking lot must be submitted. Although a statement was submitted approving the use of three parking spaces from Peter Quinn, James Stolpestad has informed us �� 9g-\Zo that there is no formal arrangement for the use of three parking spaces. Assuming a lease is submitted, a restriction will be added to the license specifying that the lease for the three parking spaces must remain valid. If the lease is terminated, fhat portion of the newiy expanded patio would need to be removed and the four [sicj off-street parking spaces reesfablished, alternative parking obtained or a parking variance acquired. Ex. 3; Ex. B. 12. In a letter dated March 20, 1996, from City Landscape Architect Tom Beach to Mr. Stoipestad of Exeter Realty Corporation, Mr. Beach noted, inter alia, that the revised site plan for the "Vctoria lI" parking lots showed 178 parking spaces in the "Church" lot and 30 parking spaces in the "Milton Mall" lot, for a total of 208 parking spaces, which was an incsease of 20 parking spaces over the then-existing situation. This increase was the result of reducing the width of the parking spaces to 8.5 feet and removing the gates and booths from the lot. Mr. Beach stated that these additional parking spaces "may be used for the next three years for an expansion of gross floor area or a change in use requiring additional parking as specified in Section 62.103(i) of the Zoning Code." Ex. C. 13. At some time during late 1995 or the first three months of 1996, Mr. Wengler provided Ms. Lane with a copy of the Customer Parking License and Special Customer Parking License referenced in Finding No. 6 above (Ex. 12). 14. At the request of Ms. Lane, the RespondenYs President, Bill Wengier, signed an agreement dated March 28, 1996, which stated that "[t}he extension of service as a result of the renovation of the patio area is subject to the consent for the use of three (3) off-sfreet parking spaces from the VC Parking Management Co. at the Vic {I parking {ot" The agreement further sfated that, "[i]f in the future this condition is not complied with, I [Mr. Wenglerj agree (at my option) to apply for a variance, find three (3) additiona4 parking spaces or restore the patio to its condition prior to its renovation." Ex. 4. 15. After Ms. Lane reviewed Ex. 12 and Mr. Wengler signed Ex. 4, Ms. Lane signed off on the RespondenYs patio expansion appiication. The patio service license expansion was approved by the City during the spring of 1996. Testimony of W. Lane. 16. In a letter dated April 1, 1996, to N{r. Stolpestad, Ms. Lane reiterated that the March 20, 1996, letter sent by Mr. Beach approving the site plan for the Vic il parking lot indicated that an additionaf 20 off-street parking spaces could be obtained by rearranging the lot and that these spaces may be used for expansions or changes in use over the next fhree years. Ms. Lane informed Mr. Stolpestad that, since a lease for three off-street parking spaces in the Vic II parking lot had been granted for the patio expansion for Biily's on Grand, 17 parking spaces remained for new expansions or use changes. Ex. D. The City currently continues to view three spaces in the Vcil Lot as having been allocated to Billy's on Grand. Testimony of W. Lane. _,! 98'-�a� 17. in approximately December of 9996, James lynden, who has served in the past as counsel for Bilco and East Mall Associates, received for the first time a copy of a Purchase, Assignment and Termination Agreement that had been entered into on April 28, 1995, by 917 Limited Partnership (a Minnesota Iimited partnership that owns the Victoria Crossing Milton Mall and the parking lots located north and east of the Milfon Mall), Montreal Company (a company which had entered info a letter of intent to purchase the �ctoria Crossing West Mall, Q& S Partnership (a general partnership with two partners, Peter Quinn and James Stolpestad), VC Parking Management Co. (described in the Agreement as a Minnesota non-profit parking management company that was created by representatives of businesses and organizations located in the Grand and Victoria area of St. Paul), and APCOA, inc., a Delaware corporation and national parking management company that operated the Vic II North Lot and the Vic II East Lot at the time. Ex. F. Mr. Lynden had previously learned of the existence of this Agreement. However, due to a confidentiality provision in the Agreement, he lacked detailed knowledge of its terms and had not seen a copy of the Agreement until December, 1996, after Mr. Stolpestad waived the confidentiality provision. Mr. Lynden provided East Mall Associates with a copy of the Purchase, Assignment and Termination Agreement in approximately December of 1996. Ex. F; 7estimony of W. Wengler and J. Lynden. 18. Pursuant to the Purchase, Assignment and Termination Agreement, Q& S purchased from APCOA certain equipment and improvements iocafed on the Vic II North Lot, the �c II East Lot, and the Church Lot, and VC Parking Management Co. received an assignment of APCQA's rights, title and interest in those lots and assumed APGOA's obligations and liabilities under a lease agreement with St. Paui's United Church of Christ dated September 24, 1994, subject to obtaining the Church's written consent to the assignment. The Agreement expressiy states that the parking lot to be operated by VC Parking Management "shail be operated as a free parking facility solely for (i) Church functions, (ii) customers of those business and property owners or tenants in the business area surrounding the parking lot, and (iii) customers of the East Mall." Ex. F at 3 (emphasis added). 19. At some point prior to January 22, 1997, Mr. Wengler contacted Ms. Lane and stated that he wanted to make sure that there would not be a problem with the RespondenYs patio license during the summer of 1997. In response, Ms. Lane sent Mr. Wengler a letter dated January 22, 1997, which stated, inter alia, that the third condition for the patio service license was deemed to be satisfied based on the information Mr. Wengier had provided the City: "The third condition was accepted based on the evidence you submitted. While I understand there may be a dispute about the lease agreement, we expect you to resolve any differences. lf they are resolved against you, you wilf be in violation of your license condition. However, unless we receive dispositive evidence to the contrary, we consider condition number tfiree to be met." Ex. 5. Mr. Weng{er submitted some information to Ms. Lane following his receipt of the January 22, 1997, letter which supported his view that he had the right to use three spaces in the Vic II Lot. Ms. Lane cannot recail what information Mr. Wengler submitted. Testimony of W. Lane. 4 q� 20. By letter dated April 10, 1997, Mr. Stolpesiad notified the City on Exeter Holdings L.L.C. letterhead that Mr. Wengler had never had a lease for three off-street parking spaces at the Vc il parking lot and that the only arrangemeni Mr. Wengler had had was a one-year license which expired in October of 1996 and had not been renewed. Mr. Stolpestad further stated that Mr. Wengler had had a one-year Iicense to use the Uc 11 parking lot for his other tenants of the East Mall but that also had expired in October, 1996, and had nof been renewed. Mr. Stolpestad stated that he believed, based on "past attempts to deal with [Mr. Wengler]" that it would be "highly urilikely that we will reach any agreement with Mr. Wengler concerning his use of the Vic ll parking lot." Ex. 6. 21. By Ietter dated June 3, 1997, Mr. Sto{pestad notified the City on Exeter Holdings letterhead that Mr. Wengler stili did not have a lease for the three Vic II parking spaces, and stated that, "[b]ecause we have been unabfe to negotiate a new agreement with Mr. Wengier concerning the vc II parking lot, we will soon be taking formal steps to exclude his tenants and customers from using this facility." Mr. Stolpestad enclosed a copy of a letter sent to Mr. Wengler by Mr. Stolpestad and Peter Quinn on July 31, 1996, which asserted that Mr. Wengier's license arrangement for the three parking spaces in the Vic {I parking lot would be terminafed as of October 31, 1996. The July 31, 1996, letter indicated that VC Parking Management was wiNing to negotiate new parking ficenses with both East Mall Associates and Biily's on Grand in which both entities would pay their fair shares of the expenses incurred to secure tFe fot for customer parking. Ex. 7 and attachment. 22. The City sent the Respondent a Notice of Vio(ation dated July 24, 1997. The letter notified the Respondent that the Director of the City's Office of License, Inspections and Environmental Protection would recommend that adverse action be taken against the patio service license held by the Respondent at Billy's on Grand based upon an assertion that none of the three condit+ons of the e�ended patio service license had been satisfied. The letter informed the Respondent of its right to request an evidentiary hearing before an Administrative Law Judge. Ex. 9. 23. At the hearing, the parties stipulated that the only issue presented in this case was whether the Respondent had complied with the third condition placed on the license. 24. The Respondent submitted a timely request for hearing, and this proceeding was commenced. Ex. 10. 25. By letter dated October 17, 1997, Mr. Stolpestad notified the City on Exeter Holdings L.L.C. letterhead that nothing had changed with respect to Billy's Restaurant and the Vc II parking lot, and that he had not had any contact with Mr. Wengier in many months. Ex. 11. 26. The City does not require that the three parking spaces be marked with a sign declaring that they are for the sole use of customers of-Billy's on Grand but does require that there be an agreement indicating that the Respondent has the abi4ity to use three specific spaces. Testimony of W. Lane. � � �� -�a�o Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the foilowing: CONCLUSIONS 1. The Saint Paul City Council and the Administrative Law Judge have jurisdiction in this mafter pursuant fo Minn. Stat. §§ 14.55 and 340A.415 and Sainf Paui Legislative Code §§ 310.05 and 310.06. � 2. The Notice of Hearing issued by tMe City was proper and all applicable substantive and procedural requirements have been fuifilled. 3. The City bears the burden in this matter of proving by a preponderance of the evidence that adverse action is warranted with respect to the patio service license at issue. 4. Chapter 310 of the Saint Paul Legislative Code contains general provisions relating to licenses issued by the City. Section 310.06(b)(5) of the Saint Paul Legisiative Code provides that adverse action may be taken when "[t]he licensee or applicant has failed to comply with any condition set forth in the ficense, or set forth in the resolution granting or renewing the license.° 5. Sections 62.103 and 62.104 of the Saint Paul Legislative Code contain a portion of the zoning code relating to parking requirements and off-street parking facifity standards and design. Section 62.103(e), which governs changes in the use of parking areas, provides as follows: Designated or identifiabie existing off-street parking facilities, accessory to one (1) or more principal uses, structures or facilities, may be changed to another use when the remaining off-street parking meeis the requirements that this section would impose on new buildings for ail facilities, structures or uses, including the new use. When the remaining off-street parking does not meet such requirements, other off-street parking shall be substituted for the parkingsoace changed to another use, and additional off-street parking shall be provided for the new use in accordance with the requirements of this section. (Emphasis added.) Section 62.104(3), which governs nonresidential parking facility locations, requires in this instance that off-street parking be obtained "within three hundred (300) feet of the building it is intended to serve ...." 6. The City has fai4ed to establish by a preponderance of the svidence that the Respondent has not obtained consent from VC Parking Management Co. for the use of three off-street parking spaces in the Vic 11 parking lot. 7. The foregoing Conclusions are made for the reasons set forth in the attached Memorandum, which is hereby incorporated in these Conclusions by reference. 7 `1 �' -\ao 8. Citations to exhibits or testimony in the foregoing Findings of Fact does not mean that all testimony or exhibits that support the Findings have been cited. Based upon the foregoing Conclusions, the Administrative Law Judge makes the foliowing: RECOMMENDATION 1T 1S HEREBY RESPECTFULLY RECOMMENDED: that the Saint Paul City Council not fake adverse action against the patio service license of Bilco, Inc., d/b/a Billy's on Grand. Dated this �'"� day of December, 1997 «��rr�..n.... l. . tJ cr-Q S vvt_ BARBARA L. NEILSON Administrative Law Judge NOTICE The City is respectfully requested to provide a copy of its final decision to the Administrative Law Judge by first class maii. Reported: Tape recorded (2 tapes). MEMORANDUM The primary issue in this case is whether or not the Respondent has satisfied the third condition placed on the extension of its patio service at Billy's on Grand. The resolution of this issue hinges upon the proper interpretation of the requirement that the Respondent obtain "consent for the use of three (3) off-street parking spaces from the VC Parking Management Co. at the Vc il parking lot." Ex. 4. The parties submitted conflicting evidence and argument concerning this issue. Unfortunately, neither party chose to call Peter Quinn or James Stolpestad, who obviousfy are at the center of the dispute between the parties and would have been able to cast considerable light on the status of the parking arrangement between VC Parking Management Co. and Biliy's on Grand. The City asserts that the Respondent's patio service license should be revoked or suspended until such time as the Respondent obtains a parking variance; provides a valid and acceptable lease, agreement, or consent for three parking spaces dedicated to use by Billy's on Grand or other acceptable parking; or restores the patio to its condition prior to expansion in 1996. The City contends, and the Res�ondent agrees, that the customer parking licenses (Ex. 12) upon which the City apparentiy relied in granting the patio service extension have expired and have not been renewed. The City further argues that the November 14, 1995, agreement behveen VC Parking Management Co. and East Mall � 9F- �ao Associates (Ex. A) in which VC Parking consented to the use by East Mall Associates as owners of Victoria Crossing East Mall of three parking spaces in the Vic II parking lot (hereinafter referred to as the "Consent AgreemenY') is inadequate evidence of an agreement to designate three spaces for Biliy's on Grand because it does not state a term and does nof specifically designate the spaces for Billy's on Grand. The City apparently aiso contends that fhe Consent Agreement is invalid in light of correspondence received from James Sfolpestad. The Cify further argues that Saint Paul Legislative Code § 62.103(e) requires that "the business which is changing the use of certain parking spaces must replace the parking° and thereby apparentiy asserts that consent supplied to East Mall Associates for the use of certain spaces is insufficient to allow the spaces to be allocated to Bi{!y's on Grand. Reply Brief at 1. The City further points out that correspondence from James Stolpesfad, whom the City Zoning Manager understands to be jointly involved with Peter Quinn as a co-owner in VC Parking Management, indicates there is no arrangement to permit Billy's on Grand to use three spaces in the Vic II parking lot (Exs. 2, 6, 7, and 11).� The City asserts that it has no interest in taking sides in the apparent dispute between Mr. Stolpestad and the Respondent, but contends that, under these circumstances, it was justified in requiring the submission of further documentation or other information from the Respondent supporting its assertion that three parking spaces in the Vic II lot were designated for Billy's on Grand. After careful consideration of the record as a whole, the Administrative Law Judge has concluded that the City has not borne its burden to show by a preponderance of the evidence that adverse action against the RespondenYs patio service license is warranted. Under basic contract law principles, the Consent Agreement is a contract between VC Parking Management and Easf Mail Associates. Mr. Wengler testified without dispute that he offered to hire a archifect to reconfigure the lot and obtain additional parking spaces in exchange for the promise that VC Parking Management would aliow East Mall Associates the use of three parking spaces in the Yc il Lot, and that Peter Quinn, President of VC Parking Management Co., accepted that offer. The contract was supported by ample and valuabie consideration. lt is evident that Mr. Wengier in fact hired an architect to assist in redesigning the parking lot as he had promised, and that the actions resulted in the addition of 20 parking spaces to the Vic {I Lot, a considerable benefit to VC Parking Management. It is also undisputed that Mr. Wengler hired an attorney to assist in obtaining site approval for the improvements to the �c 11 Lot and submitted a$2,00� cash escrow to ensure that the work was performed. There is also evidence that Mr. Wengler relied upon At the hearing, the Respondent objected to the receipt into evidence of Mr. Stoipestad's letters as hearsay and also objected that it had not received any advance notice that the City would seek to rely upon information obtained from Mr. Stolpestad. The letters were received in evidence based upon the Judge's view that admission wouid be consistent with § 310.05(e) of the Saint Paul Legislative Code which provides that the "hearing examiner ... shall rece+ve and give weight to evidence, including hearsay evidence, which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs." The Respondent was offered an opportunity to depose Mr. Stolpestad or to reconvene the hearing at a later date to hear his testimony, buE deciined to do so. � R8-�ao the Consent Agreement to his detriment by incurring these costs, submitting the Consent Agreement to the City as evidence of an agreement to obtain replacement parking spaces, and proceeding with his plans to renovate the pat+o at Bi{4y's on Grand. Although the Gonsent Agreement ifself does nof specify a duration, it does include a specific reference to the fact thaf VC Parking Management Co, is the tenant under a fong- term lease for the Uc II Lot and thereby reasonably implies that the duration of the Consent wi(I be the same as that of the long-term lease. The Consent issued to East Mali Associates for the use of three specific parking spaces in the Vic I I Lot was executed as a separate document a few weeks after the customer parking licenses were executed, and thus would appear to be unaffected by the expiration of those licenses. Moreover, there is no evidence that the Consent was ever formally rescinded or revoked by anyone purporting to act as an officer of VC Parking Management. Even though the Consent Agreement as written runs to the benefit of East Mall Associaies, East Mali Associates has agreed that the spaces should be designated soiely for customers of Billy's on Grand. As a result, there will be not be competing claims on these spaces by other tenants of East Mai{ Associates, as the City contends. Contrary to the City's assertion, section 62.103(e) of the Saint Paul Legislative Code merely states that "other off-street parking shaN be substituted for the parking space changed to another use," and thus does not mandate that only the particular business entity invoived may arrange for the off-street parking. The fact that Ms. Lane apparentiy disregarded the Consent Agreement at the time the license was issued in spring of 1996 and chose merely to rely upon tlie customer parking licenses that were in effect at that time does not decide the issues presented in this case, since the evidence provided at the hearing indicates that the Consent Agreement currently remains in effect, runs to the benefit of Billy's on Grand, and thus merits reexamination. Contrary to the City's argument, neither the zoning ordinance nor Mr. Wengier's March 28, 1996, agreement with the City require that the Respondent be permitted to rely upon the Consent Agreement only if there is a judicial determination that the document is binding and irrevocabie. There is insufficient evidence in the record in this proceeding from which the Administrative Law Judge could conclude that Mr. Stolpestad had authority to act on his own on behalf of VC Parking Management Co. and that the Consent Agreement has somehow been revoked by virtue of his apparent disagreement with Mr. Wengler. Mr. Stolpestad was in New York on the day of the hearing and did not testify. The Ciry did not take his depos+tion to preserve his testimony or request a confinuance or an additional day of hearing in order to permit him to testify at the hearing. No definitive evidence was provided relating to the nature of the role Mr. Stolpestad plays in VC Parking Management Co. Mr. Stolpestad apparently has had some responsibility in the Company in the past, as evidenced by the fact that his name and signature appears with that of Mr. Quinn on the one document in the record that is written on the letterhead of VC Parking Management Co. (attachment to Ex. 7) and VC Parking Management uses the same address as Exeter Realty Corporation. However, the City has not established in the record of this case whether Mr. Stoipestad is currently or has previously been an officer in the corporation, 10 q� -1ao whether he has proper aufhority to act on his own on behalf of VC Parking Management Co., or whether he may properly override the actions taken by Mr. Quinn as President of the corporation. The letters Mr. Stolpestad wrote to Ms. Lane expressing the view that the Respondent did not have a valid right to use three parking spaces in the Vic II lot were written by Mr. Stolpestad on letterhead from Exeter Reaity Corporation or Exeter Hoidings L.t.C., not VC Parking Management Co. Moreover, Mr. Stolpestad's statement in his letter of February 21, 1996, that the parties had "not been able to finalize their tentative agreement" does not make sense in light of the parties' ent'ry into the customer parking licenses in November, 1995. In view of these uncertainties and inaccuracies, the City should not properly view the letters sent by Mr. Stoipestad as "dispositive evidence" (see Eu. 5) that the third condition of licensure had not been satisfied. Mr. Stolpestad's view of the situation is apparently at odds with that of Peter Quinn, who signed the Consent Agreement on behalf of VC Parking Management. There has been no showing by the City that Mr. Quinn lacked the authority to enter into the Consent with East Mall Associates. To the contrary, the undisputed evidence provided by the Respondent demonstrates that Mr. Quinn incorporated VC Parking Management Co., serves as the company's President, and in fact has authority to act on behalf of VC Parking Management Co. in addition, the Purchase, Assignment and Termination Agreement entered into in April, 1995, gives the customers of East Mall an unrestricted right to park anywhere on the vc II lot. The Purchase, Assignment and Termination Agreement was signed both by Mr. Quinn (on behalf of VC Parking Management Co.) and by Mr. Stolpestad (on behalf of Montreal Company and 917 Limited Partnership). Thus, by contract, VC Parking Management Co. is required to operafe the Vic II Lot as "a free parking facility solely for ... (iii) customers of the East Mafi:' Ex. F. Silly's on Grand is located in the East Ma11. Accordingly, customers of Billy's on Grand cannot be excluded from parking in the Vic il Lot. Because the terms of the Purchase, Assignment and Termination Agreement were confidential and were not disclosed to Mr. Wengier and his counsel until approximately December, 1996, the City shouid not fault Mr. Wengler for failing to argue at the time the license was granted in March, 1996, that the Purchase, Assignment and Termination Agreement satisfied the zoning requirements. The Administrative Law Judge has concluded that the Consent Agreement providing East Mall Associates three spaces in the Vic II Lot, the subsequent decision by East Mall Associates that these three parking spaces shail be solely for customers of Biliy's on Grand, and the grant of unrestricted parking rights to customers of the East Mall contained in the Purchase, Assignment and Termination Agreement, taken together, satisfy the third condifion placed on the RespondenYs license. The Administrative Law .fudge thus respectfu{ly recommends that no adverse action be taken against the patio service license of Biico, Inc., d/b/a Billy's on Grand. B.L.N. - 11 C A � 5 :�m Mr. Fred.Owusu, City Clerk 170 City Hall - 15 West Kellogg Boulevazd Saint Paul, MN 55102 VC PARKING MANAGEMENT CO. 7anuary 15, 1998 a �� a � r2ECEIVED JAN 161998 vi?Y CLERK gC-�ao C�unc� �� i�;:�: 1 � `J � .��," Jj-%!�� ,.,� tJJ1 Re: In the Matter of the Patio Service License Held by Biico, Inc., d/b/a Billy's on Crrand License No. 18526, OAH Docket No. 11-2111-11343-3 Dear Mr. Owusu: �'�'e aze writing about the decision of the Administra:iva Law 3udge in the above-referenced matter which adversely affects us financially. Even though we are repeatedly mentioned in the decision that was filed with your office, we were not �iven a» op�ortuni to ap�ar at the administrative hearin� or present a written statement to the Administrative Law Jud�e. We think basic principles of fairness and due process require that our side of this dispute be included in the record and be given due consideration. We therefore request that the City Council refer this matter back to the Administrative Law Judge for reconsideration of her decision in light of the information contained in this letter. There are several factual matters we would like to bring to the attention of the Administrative Law Judge. First, we would like to clarify who owns and speaks for VC Parking Management Co. Throughout her decision and supporting memorandum, the Administrative Law Judge had difficulty understanding the role of James A. Stolpestad in VC Parking Management Co. and seemed to disregard all of his correspondence that was introduced at the hearing by the City of Saint Paul. In fact, Mr. Stolpestad owns 50% of VC Parking Management Co. and is its Secretary-Treasurer and Peter J. Quinn owns 50% of the company and is its President. All decisions of the company are required to be made by the unanimous agreement of Mr. Quinn and Mr. Stolpestad. Mr. Quinn signed the incorporation papers which were prepared and filed by Mr. Stolpestad who is an attorney. Moreover, the letters written by Mr. Stolpestad that are referred to in the decision and supporting memorandum (i.e., the February 21, 1996 letter on Exeter Realty Corporation letterhead and the April 10, 1997, 7une 3, 1997, and October 17, 1997 letters on Exeter Holdings LLC letterhead) were written on behalf of VC Parking Management Co. Exeter Holdings LLC is a management company that customazily communicates with third parties on behalf of the various buildings and companies it represents using its own letterhead. If we had been able to participate in the hearing, we could have clarified these facts for the Administrative Law 7udge, as she herself acknowledged in the first paragraph of her memorandum. We believe this clarification alone may have led the Administrative Law Jud�e to a different decision. Second, the Administrative Law Judge appears to have based much of her decision on an incorrect interpretation of a sin�le document. In the fall of 1995, VC Parkin� Management Co. issued two separate parking licenses to William T. Wengler, effective November l, 1995 -- a Customer Parking License for East Mall Associates and a Special Customer Parking License for Billy's Restaurant and Bar. 1080 Montreal Avenue, Suite 400, Saint Paul, MN 55'116 VC PARKING MANAGEMENT CO. l�' �a Mr. Fred Owusu, City Clerk Page 2 As the Administrative Law Judge accurately noted in her Finding No. 6, "These Zicenses have now expired and have not been renewed' (emphasis added), which Mr. Wengler himself acknowledged at the hearing, according to the second paragraph of the supporting memorandum. These simple facts should have ended the discussion. But the Administrative Law Judge then focused on a short letter signed by Mr. Quinn on November 1 l, 1995, and concluded that it was a sepazate "Consent Agreement", providing Billy's with three parldng spaces in the lot owned by St. Paul's Church, that was never terminated by VC Parking Management Co. However. this November 11. 1995 Zetier was nothin�more than a reference to the earlier parking Zicenses and was not a new a�reement between the parties. The relevant agreements were the parking licenses, which everyone agreed had expired. Third, the Administrative Law Judge drew entirely improper inferences from the Purchase, Assignment, and Termination Agreement between VC Pazking Management Co. and APCOA, Inc. -- in which VC Parking Management Co. agreed to acquire APCOA's leasehold interest in the Church parking lot. This agreement required that the lot be operated as a"free parking facility". This meant that VC Parking Management could not charge customers for parking but could assess business or• buildinQ owners in the area for the costs of�eratin�and maintaining the parking lot. This is what APCOA and VC Parking Management Co. had in mind when the Purchase, Assignment, and Termination Agreement was signed. It should be noted that neither Mr. Wengler nor his entities were parties to or third party beneficiaries of this agreement. Indeed. Mr. Wen�ler himself a�parently aQreed with our interpretation of the Purchase. Assimment. and Termination A�reement because he allowed himself to be assessed�'or such o�eratinQ costs as consideration for receivinQ his iwo parkinQ licenses for the,Zear they were in e�'fect. The dispute between VC Parking Management Co. and Mr. Wengler that is reflected in the Administrative Law Judge's decision is not about his patio or three parking spaces in the Church parking lot. Instead, it is about Mr. Wengler's failure to contribute his fair share to the costs of maintaining and operating the Church parkin� lot which serves the entire Grand and Victoria area, inc]udina his customers. The two of us spent approximately $225,000 of our own money to buy out APCOA in June of 1995 and refurbish the Church parking lot for customer parkin� and since then have spent approximately $3,500 per month to cover operating and maintenance costs. Mr. Wengler's contribution to the buyout was zero and his monthly contribution to operating costs since Cctober of 1996 has also been zero, even though his customers have enjoyed the use of the parking lot and Mr. Wengler has reaped the economic rewards of their patronage. We have been trying to enga�e Nlr. Wengler in a discussion about this matter for over a year without success. We are willing to keep trying. But unless and until Mr. Wengler is willing to talk to us and agree to pay his fair and equitable share of these costs, VC Parking Management Co., without havin� an, � inpr+t into the decision, should not be forced to allow Mr. Wengler to use the Church parking lot for his required three parking spaces in order to maintain his patio license. We would have no objection if he were to find those spaces elsewhere. 1080 Montreal Avenue, Suite 400, Saint Paul, MN 55'116 q.8' -\a� VC PARKING MANAGEMENT CO. Mr. Fred Owusu, City Clerk Page 3 We request that the City Council refer this matter back to the Administrative Law 7udge for a fair hearing of our side of this dispute. Thank you. Very truly yours, L�'*�''�'" • � Peter J. Q President � � James A. Stolpestad Secretary-Treasurer cc: Mr. Phillip Byrne, Assistant City Attorney Mr. Brian D. Alton, Attorney at Law '1080 Montreat Avenue, Suite 400, Saint Paut, MN 55116