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91-2273 ��'�. `" q I -�.�.`�3 ✓ � � Council File #` ��i Green Sheet # v v�G SOLUTION CITY OF SA T PAUL, MINNESOTA . � Presented By Referred To Committee: Date RESOLVED, that a11 of the licenses, including sign hanger and building contractors license, issued for Midwest Outdoor Advertising, 99 North Snelling Avenue, Saint Paul, are hereby suspended for a period of 30 days, commencing upon the date of publication of this resolution; and be it FURTHER RESOLVED, that this suspension sha11 be stayed for a period of two years upon satisfaction of the following conditions by the said licensee: 1. Within 60 days bring all signs it owns or leases into compliance with the ordinances of the City of Saint Paul, including but not limited to removal of the advertising signs located at 201 N. Snelling and 234 N. Snelling within 30 days. 2. Each sign of the signs owned by Midwest Outdoor Advertising within the City of Saint Paul must display a community services advertisement at no cost for a period of 30 days during the next 12 months. The advertisement must be given to any not for profit or community based organization from within the City of Saint. Midwest Outdoor Advertising shall advise the BIDD not less than 5 days in advance of the beginning of this period, giving the exact location and dates during which the sign will display the community service advertisement. The signs shall be provided to community service organizations on a first come, first served basis without discrimination. Licensee shall provide BIDD with a list of agencies applying for sign space every 30 days. 3. Obtain all required building permits for all work performed in the City of Saint Paul and comply with the zoning and building ordinances of the City. 5. Meet with the Director of the Building Inspection Design Division of the City of Saint Paul within ten (10) days of the publication of this resolution to indicate its intent or lack of intent to comply with these conditions, and the procedures for implementing such conditions; and ��` � �� ,�?7� ��i�� ,� ✓ 6. Pay to the City of Saint Paul the sum of $750 for the tree that was damaged at Rice and Rose, on or before the effective date of this resolution. If payment occurs at a later date the amount paid must be $1,100. 7. Provide BIDD with an inventory of all signs located within the City of Saint Paul, along with the expiration date of the cunent advertising contract for each sign. FURTHER RESOLVED, that the Findings of Fact and Conclusions of Law of the ALT dated October 31, 1991, are expressly ratified and adopted as the written findings and conclusions of the Council, except that the Recommendations and Memorandum of the AIJ are not adopted or approved; and be it This resolution is based on the record of proceedings before the Administrative Law Judge, including the hearing on February 12 and 14, April 12 and July 19, 1991, the documents and exhibits introduced therein, the arguments and statements of counsel for the parties on November 26, 1991, and the deliberations of the Council in open session on November 26, and December 5, 1991. The Findings of Fact and Conclusions of Law of the ALJ are expressly incorporated in and made a part of this Resolution. A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge, and to the counsel for the license holder. Yeas Navs Absent Requested by Department of: imon .,� oswi z - - on acca ee - e man une i son BY� Adopted by Council: Date ,� �' - � Form Approved by City Attorney Adoption Cert' 'ed�by Council S�cretary By: �� _ � '--, / { � By� '�'� � Approved by Mayor for Submission to ; ��91 Council Approved by�ldr: Date '''_'"� �: � ��',//�� «,�:�� By: By: t' 1'�rsn t�s«� 7ra� t s�y� CF 4 ,%:_�; �.:r�a•. . � �� ✓ DEPARTMENT/OFFICFJCOUNdI la_'"�'�I GREEN SHEET No. Q$ ��PERSON�`�P�F� E INITIAU DATE ��IRITnUJDATE V 1� W��'sa n „�,�,�, ❑OEPARTMENT DIRECTOR �CITY COUNCIL �� ❑aTV�rroRNer �ciTV c�RK MUST 8E ON COUNCiI AOENDA 8Y(OATE� ROUTINO �BUDOET DIRECTOR �FlN.8 MOT.8ERVICEB DIR. �MAY�(�i AS818TAN'p � TOTAL#�OF 81GNATURE PAGES (CLIP ALL LOCATIONS FOR SIGNATUR� ACTION RC-QUESTED: 1 1 nlJ�L' 1 S�GLI.I� 1J�-11C�- mud.c�,esa 0�door adv��+o►n '�a . s s ed. o �. r�od � 3� P� P� � F�oOMMENDAT10H8:Appovs(/U a ReHct(Fry COUNCIL CONMAITTEEIRESEARCh1 F�PORT OPTIONAL _PLANNINO COMMISSION _pVIL SERVI�COAAMIS81�1 ANALY8T PHONE NO. _CIB COMMITTEE _ COMMENTB: _Sl'AFF _ _DISTRICf COURT _ SUPPORTS WHICFI COUNpL OBJECTIVE7 INITIATINti PROBLEM,188UE,OPPORTUNITY(Who.Whu,When,Whsre.Why): ADVANTAOES IF I�D: DISADVANT/UiEB IF APPROVED: DIS,�DVANTAOES IF NOT APPROVED: RECEIVED oEC 101991 CITY CLERK TOTAL AMOUNT OF TRANSACTION = COST/RHVENUE OUDOETED(CIRCLE ON� YES NO FUNOINO SOURCE ACTIVITY NUM9ER FlNANGAL INFORMA110N:(EXPWN) dw NO'TE: COMPLETE�IRECTIONS ARE INCLUDED IN THE QREEN 8F�fT INSTRUCTIONAL MANUAL AVAILABLE IN THE PURCHASING OFFlCE(PHONE NO.296-4225). ROUTIN(i ORDER: Bslow are profa►red routinga for the flve m�t frequent types of documer�ts: CONTRACTS (essumea authorized COUNqL RESOLUTION (Amend, BdgtsJ budget exists) Accept.GreMs) 1. Outaide Agency 1. Department Director 2. Initiatin�DepaRment 2. Budg�t Director 3. City Attornsy 3. City Attomey 4. Mayor 4. Mayor/Assistant 5. Flnance d�Mgmt Svcs. Director 5, C�tty Counql 6. Finance Axountlng 6. Chief Accountant, Fin&Mgmt Svcs. ADMINISTRATIVE ORDER (Budpet COUNCIL RESOLUTION (all othera) Rsvisbn) and ORDINANCE 1. Activity Mana�gsr 1. In�fatii�p DspeRmeM Director 2. DspaRmont A000untant 2. City Attorney 3. pspertmeM p�re�or 3. MayodAssistant 4. Bud�st DiroCtor 4. qty COUhdI 5. City qerk 6. Chimf Axournant, Fln d�Mgmt 3vcs. ADMINISTRATIVE ORDERS (all othere) 1. Initiatin�Dspeutment 2. qty Attomey 3. MayoNAasistent 4. qty Clerk TOTAL NUMBER OF 31tiNATURE PACiES Indicate the+Y of peges on which signaturos are required end Qepe li� each of these� ACTION REWJESTED � Describe what the projectlrpueet ae�ks to eocomplbh In either chronolopi- cal adsr or order of importar�cs�whichwer is mat app►c�iate fa the iae�. Do n�write complete asnte�x�. Be�n each item in your liat with a verb. RECOMMENDATIONS Canplste if the ibe�s in question has b�en preseMsd before any body, Public . or private. 3UPPORTS WHICH COUNqL 08JECTIVE4 Indicate whk;h Council objedNre(s)your proJsct/requsst suppotts by listing the key word(s)(HOU31NCi, RECREATION, NEIOHBORHOO�S, ECONOMIC DEVELOPMENT, BUDQET,SEWER 3EPARATION).(SEE COMPLETE UST IN INSTRUCTIONAL MANUAL.) COUNCIL COMMITTEEIRE3EARCH REPORT-OPTIONAL AS REGIUESTED BY COUNCIL INITIATINCi PROBLEM, IS3UE,OPPORTUNITY Explain the situatbn or condidons that croated a need for your project or roquest. ADVANTACiES IF APPROVED Indicate whether this is simply an annual bud�N procedure required by law/ charter or whether thars are spsci�c wo in which the City of SaiM Paul end its citize�will bensNt fran this pro�ct/action. DISADVANTA(iES IF APPROVED What nspative sflects or majbr chanpss to existinq or past proceeses migM this projsctlrequsst producs if it it pasaed(e.�.,trMflc delays, noise, . tax incroae�or a�srtrents)?To Whom?When? For how bn�7 DISADVANTA(iES IF NOT APPROVED What wili be the neyed'n+e conaeqt�encea N the promised action is rwt , approved?InabiUty to delfver a�rvice�ConUnued high traffic, noise,— accideM rate?Loss of revenue? FINANqAL IMPACT Althou�h you must tailor the infonnation you provfde here to ths issue you are addreesiny, in gs�e�al you must answer two questions: How much is it going to cost?Who is going to pay? , Y , CO�At � i PUbI:t l�Ctr:�� .' IV��' :tb �� ' ��-� ✓ 6-2101-5012-3 STATE OF MINNESOTA RECEIVEC� OFFICE OF ADMINISTRATIVE HEARINGS FOR THE ST. PAUL CITY COUNCIL N o v 0 � 1gg1 CI?Y ��ERK City of St. Paul FINDINGS OF FACT, vs. CONCLUSIONS, RECOMMENDATION Midwest Outdoor AND MEMORANDUM Advertising Company A contested case hearing in the above-entitled matter was held on February 13, 14, April 12 and July 19, 1991 , in St. Paul , before Allan W. Klein, Hearing Examiner for the City Council . �ppearing on behalf of the City of St. Paul was Thomas J. Weyandt, Assistant City Attorney, 800 Landmark Towers, St. Paul , Minnesota 55102. Appearing on behalf of Midwest Outdoor Advertising Company were Earl P. Gray, Qne Capitol Centre Plaza, Suite 1300, St. Paul , Minnesota 55102 and John E. Thomas, Cochrane & Bresnahan, 24 East Fourth Street, St. Paul , Minnesota 55101 . The record in this matter closed on October 23, 1991 . This Report is a recommendation, ng� a final decision. Pursuant to sections 310.05 and .06 of the City' s Legislat9ve Code, the Council shall provide the licensee opportunity to present oral or written arguments alleging error on the part of the Examiner in the application of the law or interpretation of the facts, and to present argument related to the recommended adverse action. The Council may accept, reject or modify the Findings, Conclusions and Recommendation of the Hearing Examiner. Ruling on Motion On the first day of the hearing, the Licensee made certain motions which had not been previously filed. The Examiner took one of them under advisement, indicating that he would give the City an opportunity to respond before ruling. The City did respond at the end of the hearing, and the matter is now ripe for ruling. Licensee had moved to limit the scope of the hearing to matters existing in 1991 , rather than including matters which had occurred prior to 1991 . This was based on the theory that the City had renewed Midwest' s license on January 3, 1991 , thereby waiving any right to take adverse action against the license for acts occurring prior to that date. The City' s response was that relicensure was not a bar to using prior events as a basis for adverse action, and that the gist of the charge against the Licensee was its ongoing course of violations of the City Code. The Examiner now rules that the City' s relicensure in January of 1991 does not bar it from considering acts prior to that date. �, Memorandum. Based upon all of the testimony, exhibits and evidence in the record, the Hearing Examiner makes the following: � � ' �� FINDINGS OF FACT 1 . Midwest Outdoor Advertising Company is wholly owned by Peter Remes, a lifelong resident of St. Paul . 2. Remes has been in the outdoor advertising business approximately seven years. He began in late 1983, after finishing college. He took on a partner in 1985 who remained with him for about two and a half years, and has continued as the sole owner. Tree Trimming at 1164 Rice Street 3. The property at 1164 Rice Street is owned by Pipeline Oil Co. Midwest Outdoor Advertising had a sign on the property. On the boulevard between the Pipeline property and the street, there was a nine-inch white ash tree. By August of 1990, branches of the tree had grown to the point where they were obstructing the view of the Midwest sign, and, in fact, would hit against the sign from time to time. 4. On August 31 , 1990, Peter Remes and one of his employees, James Egert, went to the location. Remes went inside the building and asked Don Esch, the owner of Pipeline Oil Co. , whether Esch would mind if Midwest cut back the tree limbs that were hanging over the sidewalk and over Pipeline' s property. Remes explained to Esch that the tree limbs were interfering with access to the sign, and making it difficult to get a ladder up to put a poster on it. Esch indicated he had no ob�ection to the proposed trimming, because he had some big fuel trucks which were being hit by one of the tree limbs as well . Esch also thought that the tree might pose a danger to persons on the sidewalk because it had some small branches that were about at eye level . Remes had Egert cut back approximately three tree limbs. 5. Egert did not cut the limbs all the way back to the trunk of the tree, and left the tree in a somewhat unusual appearing form, with at least one large limb w9thout any leaves extending out from the trunk, having been cut off in the middle of its length. Ex. Ala. Within two weeks of August 31 , the City trimmed the tree substantially more than Remes had done, and 1n the process, removed the branch which Egert had only partlally cut off. Ex. 2. 6. The next day, Remes received a call from Gregory A. Reese of the City's park forestry section. Reese informed Remes that it was improper for him to have trimmed a city-owned boulevard tree. Then Remes received a form letter, dated September 10, 1990, from Reese. This letter was directed to four advert9sing companies (Adventure, Midwest, Naegele and National> . It informed them that it was unlawful to cut a tree that was planted on public property, that advertising compan9es had recently trin�ned city-owned trees to improve sight lines for their signs, and that the forestry section would levy fines for damage to trees. Ex. A3. Remes calted Reese and apolog9zed for the incident, again explaining what had happened. Reese seemed to be understanding, but informed Remes that it was city policy to prohibit such tree-trimming, even if trees interfered with advertising signs. Remes assumed that everything was forgiven. However, on or about October 12, Remes received an invoice from Reese for $1100. This was for "damage" and "loss of value" to the nine-inch white ash. Attached to the invoice was a letter, dated September 12, 1990, from Reese to Remes, indicating that the tree had been seriously disfigured, -2- � � � �y,a�� J tMat the trimming violated an ordinance, and that the forestry section was levying a fine in compensation for damages. Ex. 1 . Remes and his attorney went to visit Reese, but Reese would not discuss the matter wlth them. 7. Remes was not aware that there was any prohlbition against trimming the tree, at least so long as the trimming were limited to that portion of the tree branches extending onto the Pipeline property. He did not seek or obtain permission from the City to trim the tree. He was unaware of the specific terms of section 176.03 of the City' s Legislative Code. 874 White Bear Avenue 8. On November 7, 1983, Midwest entered into a lease with one Ames Haley, allowing Midwest to erect an advertising sign at 874 White Bear Avenue. The lease document provides that Haley: . . . represents and warrants that [he] is either the owner or the agent of the owner of the premises above- described, [and] has full authority to make this lease . . . . It was later discovered that Haley was only a tenant, not the owner. 9. On November 7, 1983, Remes applied for a building permit to erect a 12-foot by 6-foot sign on the property. In the application for the permit, he indicated that the owner was "Ames Haley". The permit was granted on November 16. It was extended in 1984 and thereafter. On June 18, 1987, one John E. Mueller signed a sign lease with a division of Midwest for the property at 874 White Bear Avenue. The lease provides for a ten-year term, running from June of 1987. The lease fee is $400 per year. The lease provides: The person signing this agreement represents and warrants that he is the owner or the representative of the owner of the property and is duly authorized to execute this agreement. Mueller was the owner, both in 1983 and 1987. 10. On May 17, 1988, City Zoning Inspector John Hardwick sent a letter to John Mueller, indicating that an old pole sign, which had previously been used as a business sign, had been converted to an advertising sign for Parkway Auto Body. Hardwick' s letter goes on to note that in addition to this Parkway Auto Body sign, there is also a Midwest sign on the same property, and that the City Legislative Code requires that advertising signs along White Bear Avenue be spaced at least 660 feet apart. Hardwick advised that the Parkway Auto Body sign must be removed, or converted to a business sign, by June 1 . On June 3, 1988, Hardwick noted on a zoning complaint form (Ex. B2, p.2) that he had spoken with Mueller who indicated that he needed 30 days to remove Midwest' s advertising sign. There had been some disagreements between Mueller and Midwest, and Mueller decided he would rather keep the Parkway sign and get rid of the Midwest sign. -3- ��r�-�3 � 11 . On December 28, 1988, Mueller sent a letter to Midwest, indicating that the City had demanded that one sign be removed from the property, and that Mueller wanted Midwest to remove its sign within 30 days. Ex. B4, p. 3. On February 23, 1989, Hardwick wrote to Mueller, indicating that the advertising sign for Parkway Auto Body had not been removed, nor had a permit been applied for, and indicating that unless the sign were removed or a permit obtained by March 6, a tag would be issued. On February 23, 1989, Hardwick noted on a zoning complaint form that he had spoken with the manager of an employment office at 874 White Bear Avenue, and told him that the sign must be removed or a permit obtained. On March 1 , 1989, Hardwick spoke with John Mueller regarding the problem. Mueller told Hardwick that he had sent a letter to Midwest asking them to remove their sign. Ex. 62, p. 1 . On March 15, 1989, Mueller sent a letter to Hardwick confirming their telephone conversations and enclosing copies of letter which Mueller had sent to Midwest Outdoor Advertising. Ex. 64, p. 1 . 12. On March 15, 1989, Mueller again wrote to Midwest, indicating that he wanted the Midwest Advertising sign removed from the property. Ex. 65. On July 21 , 1989, Remes wrote to Hardwick, enclosing a copy of the letter of permission dated May 30, 1987 between Mueller and Northwest Outdoor. Remes indicated to Hardwick that a permit had been obtained for the sign. Remes went on to indicate to Hardwick that he believed that the business sign on the property was to be used exclusively to identify the business at that location. Ex. B3, p. 1 . 13. On March 1 , 1990, Lawrence R. Zangs, a City zoning technlcian, wrote to Mueller, indicating that he had still failed to deal with the Parkway Auto Body sign and that it must be removed by March 12, 1990. 14. Currently, the property still has two signs, within 30 feet of each other. One is a Midwest sign, advertising "Silver Ridge Apartment Homes". The second is a sign for "Parkway Auto Body". Both are advertis9ng signs; neither is a business sign. 15. In summary, Midwest first obtained a building permit based upon a lease from a tenant (Haley> , not the owner (Mueller> . However, Mueller later did sign a lease with Midwest. When the gas station which had been on the premises went out of business, the gas station sign was taken down from the pole and Mueller negotiated the lease of the pole to Parkway Auto Body for an advertising sign. It is illegal to have two advertising signs so close together. Mueller was unaware of this at the time, but was dissatisfied wlth Midwest because of payment difficulties and, once he was notifled by the City that he could not have two advertising signs, declded in his own mind that he preferred to have the Parkway sign remain and the Midwest sign be removed. However, he had signed a ten-year lease with Midwest in 1987. The City does not, however, purport to ad�udicate disputes between a sign company and a landowner, such as the one which now exists between Mueller and Midwest. That is properly a civil matter. The City does have an interest, however, in assuring that not more than one sign is on the property. Back in May of 1988, Hardwick wrote to Mueller, informing him that the conversion of a business sign to an advertising sign was improper because the existing Midwest slgn was too close to the new advertising sign. Hardwick directed Mueller to remove the Parkway Auto Body sign. That is a correct statement of the law, from the City' s perspective. This directive was repeated by Zangs in his March 1 , 1990 letter to Mueller. From the City' s standpoint, it is up to Mueller to either -4- �v�,�,�� c- � ��ir� :-._/ VI ��2 ;�� ( '�--. ) , .�1 / / � C ,l �� - � p .. .. , �S U1.� l/ /1 � - � /.�L ��/\ � � 1 �- � �-- � .� (. I � P�B18 m 1BB93M � � �y�'��✓ remove the Parkway sign, or face further enforcement action from the City. Midwest has done nothing wrong in these circumstances, at least nothing that should be ad�udicated or evaluted in this forum. 1427 White Bear Avenue 16. On May 24, 1989, a permit was issued to Midwest for construction of an advertising sign at 1427 White Bear Avenue. For unknown reasons, there was no activity at the site during the summer or fall of 1989. 17. On March 31 , 1990, Midwest dug a hole and erected a sign, with the work being completed either on that day or the next. The sign was erected without obtaining a footings inspection. A City zoning technician, Larry Zangs, happened to be driving by the site on March 31 (a Saturday) , and observed the sign being erected. He received a complaint on April 2 (Monday> regarding the sign, and on that date, went out to the site to inspect it. He spoke with a business owner at 1435 White Bear who had also seen the sign being installed on March 31 . The sign was located close to the property line between 1427 and 1435 White Bear, and Zangs took measurements to see which property it was on. He left a door hanger on the doorknob at 1427 White Bear Avenue, requesting the property owner to contact him. 18. On April 4, Zangs received a call from James Egert. Egert confirmed that he owned the property, and that he had contracted with Midwest for the sign installation. Zangs, who by that time had discovered the May 24, 1989 permit, told Egert that the permit had expired (permits are only good for 180 days) . Zangs also said the sign was illegal because there was no footing inspection. Egert agreed to have the contractor remove the sign and reapply for the permit. Ex. E3 and E2. 19. Midwest did take the old sign down. On April 15, 1990, Midwest applied for a new permit, which was issued on April 30. On May 2, a city inspector was called to inspect the footings for the sign, and after he ordered more work to be done, he approved the footings on May 3. The sign was finally approved, as built, on May 21 . 20. Egert, who works for Midwest, testified that the hole had been dug in September or October of 1989, but the sign had not been installed then. The neighboring business owner, however, who cared for his own lawn, which extended extremely close to where the original sign was erected in March of 1990, testified that he did not see any hole at that location during the fall , w9nter or spring. Tn addition, Don Tschida (a city inspector who worked primarily in an area on the east side of St. Paul , from Johnson Parkway East> , noted on the back of the original permit that the sign had not been installed as of November 20, 1989. Ex. E4. It is concluded that, on balance, 1t is more likely than not that the hole was not dug in the fall of 1989, but rather was first dug in the spring of 1990. Therefore, the old permit had expired. 21 . There had been no footings inspection the first time the sign was erected. However, footing inspections were not always performed prior to April of 1990. While inspectors did some of them as far as eight to nine years ago, it was only done sporadically. After April of 1990, all foot9ngs (or almost all , depending on workload) , are inspected. On April 12, 1990, Gene Reilly, a senior inspector with the City, sent a letter to Midwest, -5- C��i�� ✓ informing them that the C1ty will be inspecting all installations, and the City must be notified when installation begins. Ex. 7. 201 North Snelling 22. On May 4, 1987, Metropolitan Outdoor Advertising, located at 315 North First Avenue in Minneapolis, applied for a building permit to erect a sign at 201 North Snelling. The permit was granted on May 22. Ex. F6. Inspector Russell Booker visited the slte on June 2, October 7, October 8, November 20 and December 29, all in 1987. He found no evldence of any work having been done. On November 30, 1987, John Hardw9ck sent a letter to Metropolitan stating that as of November 27, work had not been started nor Mad an extension or renewal been applied for. Therefore, Hardwick informed Metropolitan, the permit was null and void. Ex. F5. There was no response or appeal from Metropolitan, Midwest, or any other person. 23. At sometime in early February 1990, Inspector Booker noticed construction activity at 201 North Snelling. A large sign was being built. Booker was not aware of any permit which would have allowed it. Inquiry revealed that the property was owned by either Remes or Midwest, as well as the fact that there had been a permit issued previously to Metropolitan, but . eancelled. In a telephone conversation between John Hardwick and Peter Remes which occurred on February 1 , 1990, Remes informed Hardwick that he had a permlt for the sign and would provide a copy, but this was not done. 24. On February 7, Booker prepared a municipal court complaint against Mjdwest for installing a sign without a permit or inspection. On March 29, 1990, the matter was brought to trial before the Honorable Kenneth Fitzpatrick, Judge of District Court. The transcript of those proceedings indicates that the prosecutor moved to dismiss the charge because Remes had shown her sufficient proof that there was a permit for the sign to be installed. Judge Fitzpatrick dismissed the charge. Ex. 10. 25. The 1987 permit issued to Metropolitan identifies Metropolitan as the landowner. Peter Remes, however, indicated that he (or Midwest) was the landowner, but that there was a "relationship" between Midwest and Metropolitan. James Egert also testified that Metropolitan fabricated the sign for Midwest and that the two were in a "venture". There is, however, no other evidence of this relationship in the record, nor is there any explanation of why neither Metropolitan nor Midwest did nat respond to the November 30 cancellation if, in fact, they had commenced construction prior to that date. Taking all of the evldence into considerat9on, the Administrative Law Judge concludes that there was no commencement of construction in 1987 and that the permit was no longer valid when construction did commence in January or February of 1990. 26. The property at 201 North Snelling houses a small shop which was used as a Flower Hut. When Booker went to the site in late January or earty February of 1990, he noticed a portable sign there, being used to advertise the Flower Hut, as well as a temporary sign leaning against the side of the building, advert9sing the availability of roses. Exs. F11 and F12. On February 7, 1990, Darrin Johnson, the owner of the Flower Hut requested and received a permit for the portable sign. The permit was limited to 14 days only. Ex. F2. On that same day, Johnson also notified the City that Flower -6- . � � � �l a��✓ Hut would be displaying two temporary banners for 30 days. On February 12, Hardwick wrote to Johnson, denying his request for the two temporary banners because Midwest had two illegal signs on the property, and no further permits would be issued until they had been removed. Hardwick testified at the hearing that the portable sign permit had been issued without his knowledge, and had he been aware of it, he would have denied it because of the existing large advertising sign which he believed to be in violation. Regardless of that, Flower Hut had obtained a permit for the portable sign shortly after learning a permit was needed. All of the dealings regarding the portable sign were between Flower Hut and the City. Midwest was not involved 1n them at all . 84Z University Avenue 27. On August 14, 1986, the City issued a permit to Midwest for a sign at 842 University Avenue. In the file was a letter of permission dated July 22, 1986 from a Gerald Martin, the landowner. Inspector Booker went to the site on September 24, 1986 and discovered that an additional sign had been placed on Midwest's pole. This second sign was located underneath Midwest's sign. It advertised a towing business which was operated on the property by the owner, Gerald Martin. Booker noted the sign' s size as 2' x 8' on the back of the permit. Ex. G3. Remes testified that it was only 1 ' x 4' . The Hearing Examiner finds Booker's measure to be more credible under all of the circumstances. 28. This sign was placed on Midwest' s pole by Martin, not by Midwest. However, since the second sign was not included within the terms of the permit, Booker noted it as a problem and, on November 10, 1986, he wrote to Midwest indicating that the second sign had to be approved and installed per code. Ex. G2. Upon receipt of this letter, Remes went to Martin and told him that it was illegal , and asked him to remove it. Martin said he would, but never did. On June 3, 1988, Hardwick wrote to Remes indicating that only one sign per location is permitted and the additional sign must be elther removed or brought into conformance. Ex. G1 . Once more, between June of 1988 and February of 1990, Hardwick mentioned to Remes the fact that the second sign was still up and needed to be removed. Finally, in February or March of 1990, Martin moved out of the premises and Remes removed the sign from the pole. 234 North Snellinq 29. The gist of this charge is that Midwest requested a permit for a 12' x 12' sign. That was granted. Instead of building one large sign, however, M9dwest erected two smaller signs, each 6' x 12' , one underneath the other. There is a spacing between the two of approximately one foot. Based upon a definition in the ordinance, the City believes that these must be treated as two separate signs, and as such, they violate the spacing requirement which is for several hundred feet between two advertising signs. 30. On October 22, 1987, Inspector Booker sent a correction notice to Midwest, indicating that the two stacked signs were not in compliance with the permit. On October 24, Midwest replied indicating that Midwest believed that two signs on a single pole were also authorized. Ex. H3. 31 . On December 1 , 1987, Remes wrote to Hardwick, agreeing to reconstruct a sign which would be one complete 12' x 12' foot structure within -7- . � � ��yr�� ✓ 30 days. Ex. H2. This was never done. Instead, on August 4, 1988, the City issued a new permlt for a 8 x 16 foot sign. Ex. H1 . This was never built, as Midwest sought legal advice and was told that there was nothing to prohibit stacked signs. What remains at the site as of the day of the hearing were two 6' x 12' foot signs, one underneath the other. Ex. H5 and H6. 32. The Code definition at issue, section 66.109G, defines "gross surface display area" as: the entire area within a single continuous perimeter enclosing the extreme limits of such sign, but in no case passing through or between any element of the sign. . . . The perimeter shall not, however, include supporting framework or bracing when not used as a sign dlsplay surface. Section 66.214 limits the gross surface display area of an advertising sign and also sets forth minimum spacing requirements between signs. Both of these restrictions vary, depending upon the functional street classification assigned to the particular street where the sign is located. In addition, other sections of the code contain additional restrictions based upon the ratio of the gross surface disply area of a11 business signs on the lot to the lineal feet of lot frontage of the lot, with the ratios varying depending upon the zoning district involved. In this particular case, however, what is at issue is the limitation on the minimum spacing between advertising signs. 33. It is found that the definition of gross surface display area does define a sign in such a way that two signs, stacked one above another, with a definite gap between them as exists in this case, do constitute two separate signs. As such, they must meet the minimum spacing requirement. 34. The primary defense to this charge, in addition to questioning the applicability of the definition to the spacing requirement, was the presentatlon of numerous examples of Naegele signs which were either stacked or side-by-side. The City does not dispute the fact that those signs exist, but rather argues that there have been numerous changes to the sign ordinance over the years, and that signs which were legal when erected continue as nonconforming uses even after the amendments to the code would prohibit their erection if new. As explained more fully in the Memorandum, Respondent has failed to demonstrate a discriminatory purpose behlnd the City' s enforcement actions. The fact that the City has cited this violation by Midwest, but not cited Naegele for similar violations (if there have been any> is not enough to dismiss Midwest's violation. � Memorandum. 460 University Avenue 35. On September 5, 1986, the City i5sued a permit to Midwest to build a sign at 460 University Avenue. Attached to the permit application is Midwest's drawing, dated August 28, 1986, indicating that the proposed sign would be exactly 100 feet from a sign on top of a Crown Auto Store to the east of 460 University. The drawing includes an indication as follows: On-premise business Crown Auto sign used to advertise Crown Auto only! -8- ��a�� The drawing also contains another notation indicating: "100 feet to on-prem9se Crown Auto sign; 165 feet to nearest advertising sign." The nearest advertising sign is on a building even further to the east of the Crown Auto building. 36. When John Hardwick approved th9s application, he noted on both the building permit and the site plan that Midwest "must maintain 100 feet from sign on roof of Crown Auto store." On December 18, 1986, Inspector Booker went out and measured the Midwest sign, and found it was 97 feet from the Crown Auto roof sign. When Hardwick was informed of this fact, he thought that the difference of three feet was not worth the City' s expenditure to have it corrected. He did, however, mention it to Remes. 37. There was a substantial change in the spacing requirement for signs such as this in 1988. On October 26, 1989, Midwest applied for a demolition permit to demolish this sign and requested that its square footage be applied to Midwest's "nonconforming sign credit" . The City had a program at that time which allowed companies which removed nonconforming signs to receive credit for their removal . Hardwick approved this arrangement, and the sign was demolished sometime in December of 1989. 38. At the time of the application, and at the time that the permit was granted, the sign on the roof of the Crown Auto Store advertised Crown Auto. Indeed, photographs taken in April of 1991 show that the sign still advertises Crown Auto. Midwest Ex. 50 and 51 . It meets the test of a business sign (as opposed to an advertising sign) . A business sign is defined as: a sign which directs attentian to a business . . . which is conducted . . . on the premises upon which the sign is placed. It shall be considered as an accessory sign. The 100-foot spacing requirement applies only to the spacing between two advertising signs, not to the spacing between an advertising sign and a business sign. Therefore, there was no reason to require a 100-foot placement between the Midwest sign and the Crown Auto sign. While the approprlate procedure would have been for Midwest to protest the 100' limitation placed on the permit, rather than accept it and then violate it, the violation is de minimis in light of the three-foot spacing and the fact that there was no basis for it in the first instance. 1333 Randolph Avenue 39. On July 17, 1985, the City issued a permlt to Midwest to construct a sign on the east wall of the building at 1333 Randolph. When the sign crew went out to actually construct the sign, the building owner changed his mind, and said he wanted to construct his own sign on the wall , but that Midwest could place its sign on a pole in the ad�acent parking lot. Midwest proceeded to erect the pole sign in the parking lot. 40. On August 16, 1985, a building inspector noticed that the sign was in the parking lot, not on the wall . Pole signs require the submission of structural drawings along with the permit application, whereas wall signs do not. In December of 1985, an inspector spoke with Peter Remes and was told the story about the building owner's desire to keep the wall sign location for -9- . C��,=��3 � himself. Ex. J2. On February 3, 1986, the building inspector wrote to Remes regarding three matters, one of which was the 1333 Randolph situation. He directed Remes to remove the pole sign by February 18, 1986. Ex. J4. On February 14, Remes replied, indicating what had happened and asking to amend the permit to indicate the new location. 41 . On February 14, 1986, Midwest filed a new application for a pole sign. Ex. J3. On March 20, 1986, Hardwick wrote to Remes, indicating that the new permit could not be issued because Midwest' s contractor' s license had not been renewed. On May 6, the permit for a pole sign was finally issued after Midwest renewed its license and agreed to pay a "double fee", which is essentially a fine. Ex. J3. 2366 West Seventh Street 42. In August of 1986, Midwest obtained a permit to build a sign at 2366 West Seventh Street. Attached to the permit was site plan, indicating various distances from other signs, residences, etc. After the sign was built, a nearby business owner (who had a business relationship with the landowner> complained that the new sign was blocking public view of his business s1gn. In an attempt to satisfy this concern, Remes moved Midwest' s sign approximately 85 feet, but did not seek a permit for the new location. 43. In June of 1988, a representative of MnDOT inquired about the propriety of the new location, and upon investigation, Hardwick directed Remes to either remove the sign or apply for a variance that would allow it to stay in its new location. Remes was given two weeks to do one or the other, but he did neither. On July 25, 1988, a citation was issued to Midwest, and by August 3, 1988, the sign was removed. Ex. K1 and K2. Procedural History and Relationship between Hardwick and Remes 44. As Midwest was beginning its business in the perlod 1983-1985, there were a few problems with the City, but none that could not be explained by Remes ' relative inexperience. One of these related to his submission of a lease slgned by a tenant, rather than the owner of the property. � Discussion under 847 White Bear Avenue. In the middle of 1985, Remes applied for a wall sign, but erected a pole sign at the request of a landowner. In early 1986, he let h1s contractor' s license lapse. These are discussed more fully in connection with 1333 Randolph Avenue. 45. Midwest's license expired on December 31 , 1985, and was not renewed until March 27, 1986. Ex. R. 46. On February 26, 1986, following the events at 1333 Randolph, John Hardwick wrote a letter to Remes, outlining a list of requirements that Remes must meet. They included such items as keeping his contractor' s license current, not erecting signs without obtaining a permit in advance, placing structures in the location shown on the permit, etc. Ex. T. These were not onerous or oppressive -- they were all required by statute or ordinance. 47. Although a few problems occurred during 1986 (460 University Avenue, 842 University) , and 1987 (234 North Snelling> , they were not all that -10- � �.�1��3 ✓ numerous or frequent. An additional problem arose in 1989 (1427 White Bear Avenue> , but that was cured and a fine was paid. Midwest was licensed continually through that period. Ex. 02. 48. Relations between the City and Midwest deteriorated quickly in 1990. In early February, Midwest erected the sign at 201 North Snelling. On February 6, 1990, Hardwick prepared a letter documenting Midwest' s problems going back to 1986, and proposing to suspend Midwest' s license until its signs were brought into compliance and Remes was willing to agree to comply with the rules relating to signs. Ex. 19. The City Attorney' s Office recommended to Hardwick that he not mail this letter to Remes, and it never was mailed. However, on February 7, Midwest was charged with a criminal citation for erecting the sign at 201 North Snelling without a permit. This charge was dismissed on March 29, 1990. Ex. 10. 49. Midwest has traditionally posted a number of polltical campaign billboards. These are obviously time-sensitive, particularly as an election approaches. On July 26, 1990, Remes, Egert and Hardwlck met because Remes was concerned about delays in permit approvals, some of which were associated with political campaign signs. In a letter dated July 26 which Remes dictated after the meeting, Remes wrote to Hardwick and listed five specific sign locations which had not been approved. One had been pending since April 15, the others had been submitted between July 1 and July 10. Remes indicated that during the last 90 to 120 days, Midwest had experienced "unusual delays" in application processing, and that was causing problems for the company, particularly in the case of time-sensitive signs. He asked what could be done to speed up the approval process. Midwest Ex. 45. 50. On August 1 , 1990, Hardwick replied, responding to each of the five specific locations listed by Remes, indicating that in each case (except one) , the delays were due to incomplete information being submitted by Midwest. In the remaining case, it appears that the City was at fault for failing to process an application. The tone of both Remes' and Hardwick's letters is negative, and it is clear that the relationship between the two was not positive. On August 8, 1990, Remes replied to Hardwick' s response, generally rebutting Hardwick' s explanations for the delays, and reasserting Mldwest' s earlier stated position that excessive delays and demands for additional information have been growing and growing since the first of the year. Midwest Ex. 47. On August 21 , 1990, Hardwick replled, attempting to rebut Remes' rebuttals, and further indicating that two more recent applications (not among those cited in the earlier letters) were incomplete, incorrect and would not be processed until additional information was submitted. Ex. V. In the case of all of these letters back and forth, copies were sent to the writers' respective counsel , so it is clear that as of July 1990, an adversarial relationship had solldified. 51 . On September 27, 1990, a Notice of Hearing was issued to Midwest by Assistant City Attorney Philip B. Byrne. The Notice set a hearing for November 5, and listed the August 31 , 1990 tree-trimming incident, along with 12 other matters. A copy of the Notice was sent to Naegele' s attorney, who had asked to be informed of the hearing date. The hearing was postponed a number of times due to scheduling conflicts, finally beginning in February of 1991 . 52. On November 16, 1990, the City sent out a renewal notice to all of its trade licensees, including Midwest, reminding them that all licenses -11- � C��yi-a�� ✓ expired on December 31 . The Notice contained instructions for renewing licenses. Ex. P. On December 5, 1990, Midwest submitted its applicatlon for a renewed license, the fee was deposited on December 15, and a new license was issued January 3, 1991 . There is no indication in the record that this renewal was anything other than a ministerial , clerical act. Based upon the foregoing Findings, the Administrative Law Judge makes the following: CONCLUSIONS 1 . The St. Paul City Council has �urisdiction over the sub�ect matter of this hearing, including violations which occurred prior to January 3, 1991 . 2. Proper notice of the hearing was timely given. All relevant substantive and procedural requirements of law or rule have been fulfilled and, therefore, the matter is properly before the Hearing Examiner. 3. Midwest Outdoor Advertising did v9olate section 176.03 of the City' s Legislative Code when, on August 31 , 1990, one of Midwest' s employees cut a number of tree limbs off of a tree on the boulevard at 1164 Rice Street. 4. Midwest did violate section 66.404 of the Code when it submltted an application which contained the consent of a tenant, Ames Haley, for a permit at 874 White Bear Avenue. This was the f9rst year that Midwest had been in business, and the violation was unintentional . The permit was granted and the sign was erected, and maintained for several years before anyone was even aware of the problem. In June of 1987, the actual owner, John Mueller, did sign a letter of permission. 5. Midwest has not violated any ordinance by maintaining its sign at 874 White Bear Avenue. There is a dispute between Midwest and the property owner, John Mueller, because Mueller would rather get the rent from the Parkway sign than the rent from the Midwest s1gn. But the City does not get involved in ad�udicating disputes such as this, and Midwest cannot be disciplined for it. It is a matter for the civil courts. 6. Midwest did violate section 66.201 by erecting the sign at 1427 White Bear Avenue after the permit had expired. In addition, Midwest violated section 66.407 by failing to give 48-hour notice prior to erection as required in paragraph (a> of that section. However, Midwest did not violate paragraph (b> of that section, which provides that footing inspections "may" be required by the zoning administrator, because prior to April 12, 1990, Midwest did not have notice that the zoning administrator was requiring footing inspections. 7. Midwest did violate section 66.201 by erecting a sign at 201 North Snelling after the permit had expired. Midwest did not violate any provision of the Code when Darrin Johnson, or the Flower Hut, displayed a portable sign at the address. 8. Midwest did violate section 66.201 of the Code by allowing a "tag along" business sign on its pole at 842 University Avenue. 9. Midwest did violate the spacing requirement of the Code when it erected a stacked sign at 234 North Snelling. Two signs, stacked one above -12- . � ��y�-�a�� another, having a definite gap between them, must meet the spacing requirements. 10. Midwest did not violate the spacing requirements of the Code when it erected the slgn at 460 University Avenue so that it was only 97 feet from a Crown Auto Store sign to the east. The Crown Auto Store sign was a business siqn, and the 100-foot spacing requirement does not apply to the spacing between an advertising sign and a business sign. The City has not demonstrated any purpose behind Hardwick's 100-foot limitation in the permit, other than the fact that he misunderstood the nature of the Crown Auto sign. Therefore, there was no violation by Midwest. 11 . Midwest did violate section 66.404 of the City' s Leg9siative Code by applying for a wall sign, but building a pole sign. Midwest did, however, ultimately obtain a permit for the pole sign by paying a "double fee" fine. 12. Midwest did violate section 66.404 by moving the sign at 2366 West Seventh Street 85 feet from its permitted location. 13. Midwest failed to prove a discriminatory purpose behind the enforcement posture of the City vis a vis Midwest and Naegele. Therefore, none of the above-cited violations can be excused by virtue of the City' s treatment of Naegele. Based upon the foregoing Findings and Conclusions, the Hearing Examiner respectfully makes the following: RECOMMENDATION That the billboard and sign business license held by Midwest Outdoor Advertising Company be suspended for a period of 20 business days during which time Midwest shall not be permitted to enter into any new contracts or erect any new signs. Dated this 3 � day of October, 1991 . W, . ALLAN W. KLEIN �� Administrative Law Judge NOTICE The Council is respectfully requested to send its final decision to the Administrative Law Judge by first class mail . Reported: Tape Recorded, 12 tapes. -13- � , �9%��1��/ MEMORANDUM I . Midwest' s Motion to limlt the scope of this hearing to events which occurred, or were still ongoing after January 3, 1991 , was denied. The basis for the denial was that the gist of the City' s complaint -- that there was an ongoing disregard for the City's ordinances -- by its very nature requires a number of examples. This is similar to a disciplinary action against a professional license, such as that of a doctor or dentist, for unprofessional conduct over a period of time and a number of incidents. For example, in the Matter of the Pro op sed Disci 1{Zlnary Action Against the Dentist License of Roggr W. Schultz, 375 N.W.2d 509 (Minn. App. 1985> , the Court of Appeals upheld the indefinite suspension of a licensee in 1985 based upon events which went back to at least 1975. The dentist argued that it was "unfair" to consider an incident which took place in 1975. The Court re�ected that argument, noting that there is no statute of 19mitations in the statutes governing the dental profession. It has also been stated that courts usually hold that a general statute of limitations does not apply to administrative disciplinary matters. Beck, Bakken & Muck, Minnesota Administrative Procedure, (Butterworth's, 1987> at p. 95. A different result could occur, however, under the doctrine of laches. This would apply if (1 ) the passage of time had pre�udiced Midwest because of the absence of essential witnesses, the failure of inemories, etc. , and (2> the delay was unreasonable and inexcusable. �, for example, State v. St. Paul Fire & Marine Insurance, 434 N.W.2d 6, 8-9 (Minn. App. 1989> ; In re N.P. , 361 N.W.2d 386 (Minn. 1985) , anqeal dismissed, 106 S. Ct. 375 (1985) . In the case of Midwest Outdoor Advertising, however, there was no pre�udice in that there was no serious claim of lapsed memory, unavailable witnesses, or any of the other factual indicia for applying the doctrine of laches. The granting of Midwest's business license at the end of 1990 was a ministerial act. It was not based upon a reasoned analysis of all of the facts and circumstances which were dlscussed during this hearing. Indeed, the hearing was originally scheduled to be held on November 5, 1990, but was continued to February primarily at the request of Midwest's counsel . To claim that because the City was barred from considering acts which occurred before 1991 could lead to much mischief by both the City and Respondents in attempting to either rush or delay the hearing based upon the relicensure date. There is simply no legal or public policy argument to support such a positlon. II. The 20-day suspension recommended above is based on a belief that Midwest must be punished for its past violations in order to "get its attention" and assure compliance in the future. The length of the suspension, however, ought not to be such as to put Midwest out of business permanently. Its violations are not that frequent. Midwest received between 150 and 175 permits during the past year. Obviously, the vast ma�ority of Midwest's operations comply -14- . ��7��°2�J with the City codes and ordinances. Moreover, it is clear that since February of 1990, John Hardwick has been "thoroughly reviewing" all of Midwest' s activities. If there were other violations, they would have been noted. Indeed, Midwest has a legitimate complaint about the "fly specking" nature of Hardwick' s revlew of recent applications. It has no doubt cost Midwest several thousand dollars. In addition, Midwest has been forced to incur large expenditures of time and effort, as well as expenditures for legal costs, in order to defend itself in this proceeding. Balancing all of these, the Examiner recommends that the suspension be for 20 business days, but it would be well within the Council ' s discretion to vary that number up or down based on its own evaluation of the facts. A.W.K. -15- � 1 v��/�� . i�"r._-`\ / . ��/ �/ JOHNE.THOMPiS RECEIV�D �� ATTORNEY AT LAW 24 EAST 4th STREET c�� 0 4 �gg 1 SAINT PAUL,MINNESOTA 55101-1099 ��TY `I��RK TELEPHONE . December 4 , 1 991 612/298-1950 O � ' ,/� � �� 612/699-4668 v Re: Midwest Outdoor Advertising Dear Council Members of the City of St . Paul: I am one of the antitrust counsel for Midwest in its suit against Naegele and have been assisting in the matter you have before you at this time . Also , I am a resident of , and raised six children in , the Macalaster-Groveland area in St . Paul where Midwest has its office and pays substantial property taxes . I am writing because you will recall that at the hearing on this matter last week there were references to certain contact between the attorney for Naegele and the City Attorney ' s Office about this matter . Mr . Byrne was not present before the Council last week but apparently Ms . McPeak spoke with him on the phone during the hearing and related certain information from him to the Council . My recall , without checking the tape of the hearing that is available , is that Ms . McPeak related that the Naegele attorney had said to Mr . Byrne more than what was testified to in the Record . The transcript of the testimony of both Mr . Byrne and Mr . Hennessey is attached here for your direct reference . I don' t believe it contains anything about Mr . Hennessey having said to Mr . Byrne that he may have some information to contribute about Midwest . It seems that you may have been given something not in the Record . Also , the relaying to the Council of informa- tion from Mr . Byrne when what he said to Ms . McPeak could not be heard by Midwest or its counsel , would seem to violate the ex parte rule that the City Attorney ' s Office so vigorously threat- ened against Midwest and its supporters from the beginning of this matter . I also draw your attention to page 15 , line 7 , where Mr . Weyandt' s questioning of Mr . Byrne disclosed the "substantial change" of policy by the City of St . Paul from cooperating with businesses in St . Paul to resolve problems and instead thereafter seeking punishment by revocation of business licenses . The testi- mony of Mr . Byrne describes the urging of that punishing revoca- tion policy on "all City departments" , by the City Attorney ' s Office . (page 15 , line 25 , et seq . ) This Council should examine the institution and enforcement of that economically destructive policy to determine if it truly serves the needs and interests of the residents and taxpayers of St . Paul . The business community should also be made aware of this revocation policy of the City of St . Paul . � T ��/ U"`��` ) / V December 4 , 1991 Re: Midwest Outdoor Advertising Page 2 It is my belief that Mr . Remes should be nourished and commended rather than dismantled , as proposed , and besmirched as he has been by the City Attorney ' s Office in the post-trial briefing in this matter . You can read it for yourselves to see what has been said about Mr . Remes by Mr . Weyandt . I urge you to do no more than adopt the recommendation of the A.L .J . . As Midwest' s antitrust counsel I represent , along with Mr . Remes , that not being able to conclude contracts with land owners and advertisers will put Midwest at a competitive disadvantage in the marketplace . Lastly , over the years Midwest has donated many boards to public use and has been commended f or it as the Record shows . Respectfully submitted , L�� John E . Thomas . cc. Peter Remes Ear 1 Gr$y , Esq . Thomas Wey andt , Esq . Attachments: Two Transcripts , 4/12/91 . JET/jt � a ��;��-� � 3 ,/ �t*T o' CITY �OF SAINT PAUL w�s � '�.�• o a a €��y ; OFFICE OF THE CITY ATTORNEY • o +� h l�{• JANE A. MC PEAK, CITY ATTORNEY 800 Iandmark Towere Saint Paul,Minnesota 55102 612-298-5121 JAMES SCHEIBEL FAX 612-298-5619 MAYOR November 2c, 1991 �ECEIVED �vov 2 71591 Ear1 P. Gray �ITY CLERK 386 N. Wabasha, Suite 1300 St. Paul, MN 55102 Re: Midwest Outdoor Advertising Dear Mr. Gray: In accord with the request of the City Council at today's hearing I ask that you provide me with the following: 1. The total number of signs Midwest Outdoor Advertising has in Saint Paul. 2 . The average amount of gross income received from those signs on a monthly basis during the past 12 months. 3 . The average percentage of signs for which no rental income is received during the past 12 month period of time. Please provide me with that data by December 3, 1991 to allow time to place the information within the draft resolutions requested by the Council. I will attempt to have copies of the draft resolutions to you no later than December 4 . Please call if you have any questions. Sincerely, , 1 � � � � Thomas J. Wey dt Assistar�t City Attorney cc: City Clerk � ~ s� ��yl a��3 �.,.,�� .OR�' ••:� CITY OF SAINT PAUL ;4 �� ;� OFFICE OF THE CITY ATTORNEY . "� ho .... �'�� JANE A.MC PEAK, CITY ATTORNEY 800 Landmark Towere Saint Paul,Minnesota 55102 612-298-5121 JAMES SCHEIBEL FAX 612-298-5619 MAYOR RECEIVED November 20, 1991 �vov 211g91 Council President Bill Wilson �I�Y CLERK Councilmember Janice Rettman Councilmember Dave Thune Councilmember Roger Goswitz Councilmember Robert Long Councilmember Tom Dimond Councilmember Paula Maccabee RE: Midwest Outdoor Advertising - November � Council Agenda Dear Members of the City Council: The Building Inspection and Design Division (BIDD) of the Department of Community Services requests that you reject the sanction recommended by Administrative Law Judge Allan Klein, and asks that instead you revoke the license of Midwest Outdoor Advertising and order them to remove signs placed at 201 N. . Snelling and 234 N. Snelling within 30 days. The 20 day suspension of the license recommended by ALJ Klein is meaningless. Midwest Outdoor Advertising leases space on billboards it has constructed within the City. Testimony was presented at trial that indicates that most of those leases are for at least 30 days and income from those leases will continue to be received even du�ing that 20 day suspension. Not allowing him to enter new leases during that 20 days is basically , and can easily be defeated by Midwest simply be having clients sign 60 day leases to cover the period of suspension. The frequency with which Midwest makes installations in Saint Paul, on average 3 to 6 times a year, also makes a 20 day suspension meaningless. - Revocation is a serious sanction and should be sought only in instances where there is serious threat to the public, or where it is likely there will be continued violation of the rules which protect the public. 1 � � ��-,-��73 Peter Remes and Midwest Outdoor Advertising have shown a total lack of understanding of the building and zoning codes of the City of Saint Paul. Peter Remes and Midwest Outdoor Advertising have shown that they do not deserve the privilege of doing business within the City and that landowners and small business people throughout the city should not continue to be exposed to the tactics of this firm. . We ask that you revoke the license and order removal of the noted signs. Sincerely, Ct..---�C�� Thomas We andt Y Assistant City Attorney cc: Earl Gray John Thomas Robert Kessler John Hardwick City Clerk 2 Council File � l� � Z2�3 Green Sheet ,� RESOLUTION CITY OF SAINT PAUL, MINNESOTA Presented By Referred To Committee: Date RESOLVED, that all of the licenses, including sign hanger and building contractors license, issued for Midwest Outdoor Advertising, 99 North Snelling Avenue, Saint Paul, are hereby suspended for a period of 30 days, commencing upon the date of publication of this resolution; and be it ; FURTHER RESOLVED, that this suspension shall be stayed for a period of two years upon satisfaction of the following conditions by the said licensee: 1. Within 60 days bring all signs it owns or leases into compliance with the ordinances of the City of Saint Paul, including but not limited to removal of the advertising signs located at 201 N. Snelling and 234 N. Snelling within 30 days. 2. Each sign of the signs owned by Midwest Outdoor Advertising within the City of Saint Paul must display a community services advertisement at no cost for a period of 30 days during the next 12 months. The advertisement must be given to any not for profit or community based organization from within the City of Saint. Midwest Outdoor Advertising shall advise the BIDD not less than 5 days in advance of the beginning of this period, giving the exact location and dates during which the sign will display the community service advertisement. The signs shall be provided to community service organizations on a first come, . first served basis without discrimination. Licensee shall provide BIDD with a list of agencies applying for sign space every 30 days. 3. Obtain all required building permits for all work performed in the City of Saint Paul and comply with the zoning and building ordinances of the City. 5. Meet with the Director of the Building Inspection Design Division of the City of Saint Paul within ten (10) days of the publication of this resolution to indicate its intent or lack of intent to comply with these conditions, and the procedures for implementing such conditions; and . �� 3 6. Pay to the City of Sa.int Paul the sum of $750 for the tree that was damaged at Rice and Rose, on or before the effective date of this resolution. If payment occurs at a later date the amount paid must be $1,100. 7. Provide BIDD with an inventory of all signs located within the City of Saint Paul, along with the expiration date of the cunent advertising contract for each sign. FURTHER RESOLVED, that the Findings of Fact and Conclusions of Law of the AIJ dated October 31, 1991, are expressly ratified and adopted as the written findings and conclusions of the Council, except that the Recommendations and Memorandum of the ALT are not adopted or approved; and be it This resolution is based on the record of proceedings before the Administrative Law Judge, including the hearing on February 12 and 14, April 12 and July 19, 1991, the documents and exhibits introduced therein, the arguments and statements of counsel for the parties on November 26, 1991, a.nd the deliberations of the Council in open session on November 26, and December 5, 1991. The Findings of Fact and Conclusions of Law of the AI.T are expressly incorporated in and made a part of this Resolution. A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge, and to the counsel for the license holder. Yeas Navs Absent Requeated by Department of: imon oswstz on acca ee e man une B : i son y Form Approved by City Attorney Adopted by Council: Date Adoption Certified by Council Secretary gy; ,.� _ By: Approved by Mayor for Submiesion to Council Approved by Mayor: Date By: By: - - �9r��73 M I D W E S T O U T D C� C:� t� �'�, � � ; , . �EC;EIVE�7 r�EC 0 91991 December 9, 1991 •:'��Y �LERK Mr. Jan Gasterland Building Code Official SENT VIA FAX ANU City Hall , Room 445 fIAND DELIVERED 15 West Kellogg Boulevard St. Paul MN 55102 � Dear Mr. Gasterland: We are responding to your interdepartmental memorandum dated December 2, 1991, which you wrote to Mr. Weyandt of the City Attorneys Office. We could consider your proposed "alternative" as follows: l. Midwest is to accept the findings of the Administrative Law Judge. 2. Midwest will remove one of the signs "stacked" at 234 North Snelling Avenue. ' 3. Midwest is to remove its sign at 201 North Snelling Avenue (this is Midwest's largest and most costly sign at $12,000.00 plus). 4. Midwest will provide free advertising space for St. Paul char- ities (as it has extensively in the past), by making each board available for a time of 30 days at no advertising char�e to the charity. Of course, each charity will pay its own production costs, as has been the practice. However, Midwest Outdoor will not collect its "posting costs". It has been the normal practice of charities paying such costs. 5. Midwest will apologize to Mr. Hardwick and Mr. Byrne provided a simultaneous apology is made by Mr. Weyandt for his attack on the professional and personal integrity and business competence of Mr. Remes. Resolution of this matter in this way would be without waiver, estoppel, or prejudice to ahy legal rights or remedies, either side may have against each other or anyone else for part, present or future activities. �g NORT1.� �_n�FI..L!►�:!= /�VFr!!.!E • „c-:�,il''3- f�'n.� )1. , t.+i� ;ris � r , , ; � . , r . - ,F�/��3 -, M I D W E S T O U T D O O R /1 [:� �/ (� I ? 1- I 'z I f I c ; Page 2 Lastly, Mr. Weyandt's letter of 12-2-91 to the Council did not include a resolution accepting the Administrative Law Judge recomnendations as written a�d we hereby ask that one be drawn up� and voted on by the Council. Very tr —you t Outdoor Advertising, Inc. By: Peter C. Remes President John E. Thomas Attorney cc: Earl Gray Council President Wilson and other members of the City Council per City Clerk . 99 NC�RTH �r�Fl_I.. tNG AvEN!!F • S��1RJT PhIJ{_ (','l;�Jtlr-rr� � � r;r: l (1,1 R ,<; t , � _ , . . ��a��-� 4�t*!�� . / CITY OF SAINT PAUL � ~ �V + �� A� OFFICE OF THE CITY ATTORNEY • '�`� JANE A. MC PEAK, CTTY ATTORNEY - 800 Landmark Towera Saint Paul,Minnesota 55102 612-298-5121 JAMFS SCHEIBEL RECEIVED� FAX612-298-5619 MAYOR November 12, 19 91 ►vo v 13 �gg� Ear1 P. Gray CITY CLERK Attorney At Law 386 No. Wabasha Street One Capital Centre Plaza, Suite 1300 Saint Paul, Minnesota 55101 NOTICE OF COt1NCIL HEARING RE: City of St. Paul vs. Midwest Outdoor Advertising Compnay Dear Mr. Gray: � Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-mentioned establishment has been scheduled for 9:00 o'clock a.m. , November 26, 1991 in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opportunity to file exceptions to the report with the City Clerk at any time during normal business hours. You may also present oral or written argument to the Council at the Hearing. No new evidence will be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Administrative Law Judge and on the arguments made and exceptions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its judgment and discretion. Sincerely, � THOMAS J. WEYANDT Assistant City Attorney cc: Robert Kessler License & Permit Division Manager Molly O'Rourke City Clerk John Hardwick Building Inspection & Design John E. Thomas Cochrane & Bresnahan, P.A. Attorneys At Law ' �1��-��,3 � . .__--------�-_�---------------- ` i ,...,. ,.. � + .� F"1 7 �. �� , � ��f 1'�(r. � �� ',j �;{ 1 �"�~� t�1 'yp� k� �. � �u��5�'�J't'fr1��a(��G�t �3b1 d � ; a ,.��+na�,�.�,v�:+�n►��r�•r►�w�e�wv�wii r� � OFFICE OF ADMINISTRATIVE HEARINGS FIFTH FLOOR, FLOUR EXCHANGE BUILDING 310 FOURTH AVENUE SOUTH MINNEAPOLIS, MINNESOTA 55415 --------------------------------------------------------- City of St. Paul, Plaintiff, vs. Midwest outdoor Advertising, -- Defendant. - --------------------------------------------------------- Partial transcript of the above entitled hearing { before the Honorable Allan W. Klein, taken before Kathleen Columbus, a Notary Public in and for the County of Ramsey, State of Minnesota, on Friday, the 12th day of April, 1991, commencing at approximately 3 :30 o'clock in the afternoon, at 1503A City Hall Annex, 25 West Fourth Street, in the city of St. Paul, Minnesota. * * * � CHRISTOPHER L. COLUMBUS COURT REPORTERS TELEPHONE 803 COMMERCE BUILDING 612) 224-5415 ST. PAUL, MINNESOTA 55101 , � r � d��-� . C��-� 2 � 1 APPEARANCES• 2 EARL P. GRAY, Esquire, 386 North Wabasha 3 Street, Suite 1300, St. Paul, Minnesota 55102 and JOHN 4 THOMAS, Esquire, of the firm of Cochrane & Bresnahan, 24 East 5 Fourth Street, St. Paul, Minnesota 55101, appeared 6 representing the Defendant. 7 THOMAS J. WEYANDT, Esquire, Assistant City 8 Attorney, 647 City Hall, St. Paul, Minnesota 55102, appeared 9 representing the Plaintiff. 10 11 * * * 12 ( � 13 WHEREUPON, the following proceedings were duly had: -- 14 15 * * * 16 17 18 PHILIP BYRNE, 19 called as a witness and produced, 20 after having been first duly sworn, 21 testifies and says as follows: 22 23 EXAMINATION 24 i 25 BY MR. GRAY: CHRISTOPHER L. COLUMBUS COURT REPORTERS �� 3 ; 1 Q Would you state your full name for the record, sir? 2 A Philip Byrne, B-y-r-n-e, Assistant City Attorney for the 3 City of St. Paul. 4 MR. GRAY: I believe these are exhibits, 5 amended notice of hearing and the notice of 6 hearing, aren't they? 7 MR. WEYANDT: To tell you the truth I 8 don't know. 9 Q (By Mr. Gray, continuing) In any event, you work for the 10 City Attorney's office? Correct? 11 A I do. 12 Q And you're the City Attorney that wrote the notice of � 13 hearing on September 27th, 1990 and the amended notice 14 of hearing on October 23rd, 1990? Is that right? 15 MR. WEYANDT: Excuse me. They're Exhibit 16 N I believe. Your Honor, just for the record 17 to protect myself I would object to the 18 questioning of Mr. Byrne as that in my opinion 19 the Rules of Professional Responsibility 20 prohibit me from representing a party where 21 another attorney from my office testifies that 22 the matter that is being testified to or 23 presumed to be testified to by Mr. Byrne is 24 not critical to this case and it would be � 25 burdensome to my client to force it to obtain CHRISTOPHER L. COLUMBUS COURT REPORTERS . , ' ��/`�� 4 r 1 independent representation in this matter and 2 I would ask that you exclude the testimony of 3 Mr. Byrne. 4 NII2. KLEIN: Under the circumstances that 5 we have known about this for sometime I'm 6 going to overrule the objection and allow it 7 to continue. If we get into something that we 8 don't know about where it becomes a matter 9 where it appears that he may need independent 10 counsel, then we'll review it but based on 11 what I think is coming I'm going to overrule 12 it. { � 13 MR. WEYANDT: Thank you, Your Honor. 14 A Mr. Gray, in response to your question I did write the 15 letter dated September 27, 1990 and the letter dated 16 October 23, 1990. 17 Q Directing your attention back up a little bit, would it 18 be true that the letters dated October 23rd, 1990 and 19 September 26th, 1990 were at least partially the result 20 of a correspondence you received which is entitled 21 Exhibit Midwest Sign Company No. 19, a February 6th, 22 1990 document you received from John Hardwick of the 23 City Inspector's office? 24 A I don't know if this particular letter, the February 6th 25 letter was part of what John Hardwick gave to me but he CHRISTOPHER L. COLUMBUS COURT REPORTERS , �� 5 1 did give to me a number of letters and documents related 2 to Midwest which were used in the preparation of those 3 notices of hearing and it could very well be. 4 MR. GRAY: We'd offer Exhibit 19, Your 5 Honor, as the exhibit that I referred to in 6 the past. 7 MR. KLEIN: Is there any objection to 8 Midwest Exhibit 19? That's the proposed 9 letter to Remes. � 10 MR. WEYANDT: I believe it's irrelevant, 11 Your Honor. 12 MR. GRAY: It's a letter not sent. � 13 MR. KLEIN: I'm going to overrule the 14 objection and allow it to come in. There's 15 been substantial reference to it. 16 Q (By Mr. Gray, continuing) Now do you know Robert 17 Hennessey? 18 A Yes, I do. 19 Q Are you a friend of his? 20 A Yes. 21 Q Have you been a friend for sometime? 22 A Yes. 23 Q And were you aware in the year 1990 prior to sending the 24 letters of September 27th and October 23rd that Mr. i 25 Hennessey represented Naegele Sign Company? � CHRISTOPHER L. COLUMBUS COURT REPORTERS , , ��7� 6 1 A At some point prior to sending those letters Bob 2 Hennessey called me. 3 Q I asked you a question. 4 A I was trying to answer your question. 5 Q I don't think it's responsive but go ahead. 6 A He called me and told me he was representing Naegele. 7 Q And when he called you and told you he was representing 8 Naegele was this telephone conversation out of the blue? 9 A Yes. 10 Q And as far as you can recollect for no reason at all he 11 just told you he was representing Naegele or was there 12 something behind it? I � 13 A Well, he called and told me that he was representing 14 Naegele and that he was, he had some awareness or 15 understanding of the fact that the City was proceeding 16 against Midwest and that Naegele and Midwest were 17 involved in some sort of litigation or dispute between 18 the two of them and that he was interested in being 19 advised of what we were doing. 20 Q Did you then tell him? 21 A I did. 22 Q Did he tell you that it was an antitrust lawsuit where 23 Midwest Sign Company was suing Naegele Sign Company? 24 A I don't recall what depth we got into the details of the l 25 action. CHRISTOPHER L. COLUMBUS COURT REPORTERS . � �,��y/�� 1 Q Do you remember when this conversation took place before 2 September 26th, 1990? 3 A I don't but it would be in reference to the first stage 4 that we followed starting the procedure that was 5 continued in that September 27th letter was what you 6 might call a settlement letter to Midwest where we 7 advised them that we have matters that could be used in 8 an adverse action against their license and that if we 9 have no dispute as to the facts we'd like to discuss 10 settlement and proceeding to the council. It was 11 sometime after that as I recall that Hennessey called 12 me. r � 13 Q So it was between the time you sent a settlement letter 14 and the September 26th, 1990 date? Is that right? 15 A That's my best memory. 16 Q And when you talked to him would it be accurate to say 17 that you told him that you were going to proceed against 18 Midwest Outdoor Advertising in an attempt to revoke, 19 suspend or penalize them in their licenses? Did you 20 tell him that you were going to proceed against him in a 21 licensing? 22 A I think what I told him was that we were looking at a 23 number of allegations involving their license and that 24 there could be a hearing on this if we're not able to t 25 resolve it. In any event, there'd be a hearing before CHRISTOPHER L. COLUMBUS COURT REPORTERS ��a�� 8 1 the council. What I specifically told him I'm not 2 exactly sure. I'm sure I said that we were going to 3 proceed against their license in some way based on 4 allegations that had been made. 5 Q Now in all of the allegations made and you're aware of 6 that because of that Exhibit 19 and other documents you 7 received from Mr. Hardwick none of those allegations 8 dealt in any way with Naegele Sign Company? Is that 9 true? 10 A If I understand your question, I don't think so. I il think they were all related to Midwest. 12 Q Right. And there's nothing in any of the allegations f � 13 made in this September 27th -- 14 MR. KLEIN: Just a moment, please. 15 (Hearing examiner changing tape. ) 16 MR. KLEIN: All right. You may continue. 17 Q None of the allegations and I'll show it to you again in 18 this September 27th, 1990 -- why do they call that the 19 26th letter? The letter dated September 27th on the 20 first page and the second page is dated September 26th, 21 that's why I call it the 26th but the front page is the 22 27th? Right? 23 A Yes. 24 Q Probably a secretarial error. 25 A Probably what happened is that after it was originally CHRISTOPHER L. COLUMBUS COURT REPORTERS , /1 ��-�� , • 1J' 9 1 typed I had some changes to make either in the name of 2 the administrative law judge and they retyped the first 3 page, sent it out a day later. 4 Q Right. But, in any event, the September 27th letter or 5 the 26th letter and the amended notice of hearing on 6 October 23rd, these documents had nothing to do with 7 anything involving Naegele Sign Company? Isn't that 8 true? 9 A Yes. � 10 Q That's true? 11 A Yeah. 12 Q As a matter of fact, the dissemination of this type of ! 13 information to a competitor and you knew Naegele Sign 14 Company was a competitor of Midwest because you were 15 told about the lawsuit? Right? 16 A I had been aware of that both from Mr. Thomas and Mr. 17 Cochrane and from Mr. Hennessey that there was 18 litigation between the two of them. 19 Q That the information that your inspectors obtained is 20 private data, it's private, it's confidential? Isn't 21 that right? 22 A My belief is that the information in the notice of 23 hearing is -- 24 Q I didn't ask you that. I'm talking about your telephone � 25 conversations with Mr. Hennessey where you told him that , CHRISTOPFiER L. COLUMBUS COURT REPORTERS , � , ��-j��73 io 1 you're going to bring a license adverse hearing against 2 Midwest Sign Company. Okay? That information that you 3 told him about in that telephone conversation was 4 confidential? Isn't that correct? 5 A I don't believe that's the case. I don't recall 6 discussing with him any of the detailed factual 7 information. It was simply a matter of what was 8 happening, what's going on, are we going to have a 9 hearing. And his request to me was I want to be present 10 at the hearing if I can do that so I can have a clerk or 11 a paralegal sit in and watch what's taking place. 12 Q Did he tell you why he wanted to be present? ( 13 A I assume that he wanted to be present because of his 14 litigation with Midwest. 15 Q Did he make any mention to you that if Midwest Outdoor 16 Advertising lost their license the litigation would die? 17 Did he ever say that to you? 18 A I don't recall. 19 Q Did he give you any advice or cheer you on about 20 proceeding against Midwest in these phone conversations? 21 A No. 22 Q What you did, Mr. Byrne, on the first notice dated 23 September 27th and 26th and the second notice dated 24 October 23rd, 1990, in both of these notices you sent a l 25 copy of the allegations and the notice to Robert CHRISTOPHER L. COLUMBUS COURT REPORTERS . � � ��i a�'� �� 1 Hennessey at the Larkin, Hoffman, Daly firm? Is that 2 right? 3 A That's right. 4 Q Fully advising them of the allegations made against 5 Midwest Sign Company, is that right, in your letter 6 here? 7 A They received a copy of that letter. 8 Q And have you ever in the past where litigation is 9 involved and where a competitor's lawyer calls your 10 office notify them of allegations like this? il A I don't think I've ever had a case precisely like this 12 but I have had other cases in which people have asked to � 13 be advised as to what the hearing dates are and what's 14 involved and to copy them on correspondence. 15 Q I take it you have been a City Attorney in its licensing 16 proceedings for a long period of time, isn't that right? 17 In the last 5 or 6 years you have been handling cases 18 like this, have you not? 19 A The last 2 or 3 years. 20 Q 2 or 3 years? 21 A Yes. 22 Q And you have been a City Attorney for years? Right? I 23 think you were off for a while there but -- 24 A Sure. 25 Q Has there ever been that you can recall a revocation of CHRISTOPHER L. COLUMBUS COURT REPORTERS . ' . ��-��2 y� ia 1 a sign license? 2 A I think this is the first one we had. 3 Q First one? 4 A Yes. 5 Q Were you aware that as of January 1, 1991 that Midwest 6 Outdoor Advertising obtained a new license? 7 A I'm not aware of that. 8 Q Between the time of February 6th and that was around the 9 time when you first got notice of this case? Is that 10 right? 11 A I don't really remember. It was -- �: 12 Q Would it be around that time? 13 A -- earlier in 1990 but I can't give you . . . 14 Q Between earlier in 1990 until you served the charges on 15 September 27th did you ever tell Mr. Hardwick to treat 16 Midwest Outdoor Sign Company differently when they try 17 to obtain permits for signs? 18 A No. 19 MR. KLEIN: Now let's just make sure we 20 understand because you changed the context. 21 Are you saying did you ever tell Hardwick to 22 treat them differently? 23 � MR. GRAY: Yes. 24 MR. KLEIN: Okay. ; 25 A Differently than what? CHRISTOPHER L. COLUMBUS COURT REPORTERS _ � ' ��'�;��7 3 13 1 Q (By Mr. Gray, continuing) Well, when they attempt to 2 obtain a sign permit after your considering adverse 3 action, all right, the law is and you're aware of that 4 that until the adverse action is decided they have a 5 right to conduct their business as they always have? 6 Isn't that right? 7 A Yes. 8 Q And do you know whether or not Mr. Hardwick was aware of 9 that? � 10 A Aware of? 11 Q Strike that question. Here's a different question. 12 During the time period that you're working with Mr. ( 13 Hardwick on this did he bring up other sign permits that 14 Midwest Sign Company was attempting to get during the 15 summer of 1990? 16 A It seems to me that the first I heard of it was, if I'm 17 not mistaken, from Mr. Thomas who called or Mr. Cochrane 18 who called and said there was some delay or some problem 19 with the processing of existing permits and I think what 20 I did was direct him to Hardwick and say deal with them 21 first. That as a routine matter should be handled like 22 any other permit or application. If there is a problem, 23 come back to me. My feeling is that Hardwick probably 24 called and asked about it and I don't recall 25 specifically what I told him but it would have been as CHRISTOPIiER L. COLUMBUS COURT REPORTERS .� . ��,_�� 14 1 you indicated, treat those applications as you would the 2 application of anybody else. If they're not up to 3 snuff, then don't grant them. If they are, then proceed 4 as you would with anybody else. 5 Q And would it be fair to say that that conversation was 6 just before within a month of the September 27th notice 7 of hearing? 8 A I don't remember that. 9 Q You don't remember? 10 MR. GRAY: I have no further questions. 11 MR. KLEIN: Mr. Weyandt, do you have any 12 questions? � 13 MR. WEYANDT: Yes, Your Honor. 14 MR. KLEIN: Okay. 15 16 EXAMINATION 17 18 BY MR. WEYANDT• 19 Q Mr. Byrne, the notices of hearing that Mr. Gray showed 20 you, are those public documents? 21 A My understanding they are. 22 Q To whom are they routinely distributed? 23 A They're distributed to the license inspector, to the 24 vice unit, to the community organizer for the area in 25 which the licensee is located if there's a specific CHRISTOPHER L. COLUMBUS COURT REPORTERS ,� /-y/_�� 15 1 location and to any other interested party. If somebody 2 has expressed an interest, they're also notified. 3 Q With respect to Mr. Gray's question about the fact that 4 to your knowledge -this is the first revocation of a sign 5 license that you have ever worked on isn't it true that 6 the City of St. Paul's licensing punishment process 7 underwent substantial change in about 1988? 8 A That's true. 9 Q And that there's been many firsts since 1988? 10 A That is true. 11 Q You perhaps had the first trash hauler's license 12 revocation? ( � 13 A True. 14 Q Any other firsts that you can think of? 15 A On the spur of the moment, no, but there are several 16 other types and categories of licenses that outside of 17 the bar sort of situation that we have begun to proceed 18 against. Health and Sports Club is one that we're 19 starting on right now. 20 Q This licensing revocation mechanism has become a way for 21 not only the license division but the zoning division or 22 the building department to try to resolve problems with 23 businesses that they have been having problems with? 24 Isn't that correct? , 25 A That's right. We have tried to encourage all City CHRISTOPHER L. COLUMBUS COURT REPORTERS . L'��,2 7 3 16 1 departments that have -- whether it's the fire 2 department, the health department, the zoning, if they 3 have a problem with a particular licensed enterprise to 4 see the license as another means of enforcement. 5 Q Mr. Byrne, did you send Mr. Hennessey these notices that 6 Mr. Gray has talked about as part of or furtherance of 7 any form of conspiracy between the City and Naegele, 8 design and harass, intimidate or harm Peter Remes or 9 Midwest Outdoor Advertising in any way? 10 A No, I did not. 11 Q Are you aware of any action or activity or efforts by 12 any City employees in that regard? 13 A Not at all. 14 MR. WEYANDT: No further questions, Your 15 Honor. 16 17 EXAMINATION 18 19 BY MR. GRAY• 20 Q Mr. Byrne, you're a friend of Bob Hennessey's? Right? 21 A He's my friend. He's married to my cousin. 22 Q Okay. He's married to your cousin. You have become 23 aware during the determination of this case prior to 24 filing a complaint that he represents Naegele and 25 Midwest Sign Company has a lawsuit against Naegele, he CHRISTOPHER L. COLUMBUS COURT REPORTERS .� � . �,�-1r a��3 �� 1 tells you that or you learn it from someplace? Right? 2 A Right. 3 Q And notwithstanding that you take it upon yourself to 4 bring a complaint against Midwest Outdoor Advertising 5 copying Mr. Hennessey, a competitor and a litigant 6 against Midwest Sign Company? Right? Is that right? 7 You did that, didn't you? 8 A I copied Mr. Hennessey, that's right. 9 Q And you copied him on the amended notice of hearing? � 10 Right? 11 A That's true. �, 12 Q And then why was it that you didn't go through this 13 hearing then if you think everything was done correctly? 14 Why didn't you follow through on the case like you 15 usually do once you file a complaint? 16 A Well, I think it was a matter of office assignment at 17 that point. That I was involved in, I'm trying to think 18 back, whether it was the Hudson police chase, police 19 disciplinary hearing, but there was some conflict that I 20 had and my workload was such that I gave to Mr. Weyandt 21 two or three cases at that time and it certainly had 22 nothing to do with any involvement of mine in this 23 particular case. 24 Q You don't find anything you did in this case discussing 25 this suspension of a competitor's license and a CHRISTOPHER L. COLUMBUS COURT REPORTERS , . �,��jl-�,�� 3 is f 1 litigant's license with Mr. Hennessey who is married to 2 your cousin, a friend of yours, nothing wrong with that? 3 Right? 4 A There's nothing that I did in this case that was 5 improper. 6 Q And you always, if I were to call you up and say that I 7 have a lawsuit against Naegele Sign Company and I want 8 to know what you're going to do about their license, you 9 would talk with me and send me notice and put it right 10 at the bottom of the notice? Is that right? Is that 11 your procedure? 12 A If you called me, Mr. Gray, and asked to be notified of 13 when the hearing dates were, I would certainly endeavor 14 to do that and copy you on any notice. 15 Q Thinking back, a situation like this, Mr. Byrne, where 16 you have a person that close to you like Mr. Hennessey, 17 you have an adversary hearing against a person that he 18 has a joint interest in having an adversary hearing 19 against, have you ever done anything similar to this in 20 all the years of your sending these notices out, in 21 other words, sending a notice to a lawyer representing a 22 competitor and not only a competitor a litigant against 23 Midwest Sign Company in an antitrust action where they 24 argue that Naegele Sign Company is violating the 25 antitrust laws? Have you ever done that before? CHRISTOPHER L. COLUMBUS COURT REPORTERS . , . . ��z�3 19 1 A Well, if you're saying have I ever done anything 2 precisely like this factual situation? 3 Q Yes. 4 A No. Such a situation has never occurred. 5 MR. GRAY: I have no further questions. 6 NII2. KLEIN: Okay. Anything further? 7 MR. WEYANDT: I can't resist the 8 opportunity. 9 10 EXAMINATION 11 12 BY MR. WEYANDT• � 13 Q Mr. Byrne, I have this file as one of the typical B rne Y 14 endumpments on me, don't I? 15 A I should take the Fifth Amendment. 16 MR. KLEIN: Okay. Thank you very much. 17 (Witness herein was excused and withdrew. ) 18 19 * * * 20 21 22 23 24 � 25 CHRISTOPFIER L. COLUMBUS COURT REPORTERS �' � . � 9�-��3 ; 2� REPORTER'S CERTIFICATE I, Kathleen Columbus, do hereby certify and state that I recorded in shorthand the partial transcript of the administrative hearing re City of St. Paul vs. Midwest Outdoor Advertising on the 12th day of April, 1991, at St. Paul, Minnesota. I further certify and state that thereafter and on this date I caused to be transcribed into typewriting the foregoing typewritten transcript of said recorded + proceedings, which transcript consists of the preceding 19 typewritten pages. I further certify and state that the foregoing typewritten transcript of said recorded proceedings is true and correct to the best of my ability. .�� '�HLEEN COLUMBU Court Reporter ■MA/V�AAMA/�AAN/�/�AnMMAAnnnnnnnAhn a �;�•., Kr1THLEEN COLUMBUS Z �`q��i��' N07ARY PU8LIC-NINNESOTA 5 � `V..�• RAMSEY COUtdTY � My Comm.Explres feb.11,199� •vWwvV`/1NwVwvVWVWVWWVVWVW a Dated this ��l..day of June, 1991. CHRISTOPHER L. COLUMBUS COURT REPORTERS TELEPHONE 803 COMMERCE BUILDING (612) 224-5415 ST. PAUL, MINNESOTA 55101 . �,� ��3 � COP � Y � OFFICE OF ADMINISTRATIVE HEARINGS FIFTH FLOOR, FLOUR EXCHANGE BUILDING 310 FOURTH AVENUE SOUTH MINNEAPOLIS, MINNESOTA 55415 --------------------------------------------------------- City of St. Paul, Plaintiff, vs. Midwest Outdoor Advertising, Defendant. --------------------------------------------------------- Partial transcript of the above entitled hearing i before the Honorable Allan W. Klein, taken before Kathleen Columbus, a Notary Public in and for the County of Ramsey, State of Minnesota, on Friday, the 12th day of April, 1991, commencing at approximately 1:40 o'clock in the afternoon, at 1503A City Hall Annex, 25 West Fourth Street, in the city of St. Paul, Minnesota. * * * � CHRISTOPHER L. COLUMBUS COURT REPORTERS TELEPHONE 803 COMMERCE BUILDING 612) 224-5415 ST. PAUL, MINNESOTA 55101 J , . ��`a�73 2 1 APPEARANCES• 2 EARL P. GRAY, Esquire, 386 North Wabasha 3 Street, Suite 1300, St. Paul, Minnesota 55102 and JOHN 4 THOMAS, Esquire, of the firm of Cochrane & Bresnahan, 24 East 5 Fourth Street, St. Paul, Minnesota 55101, appeared 6 representing the Defendant. 7 THOMAS J. WEYANDT, Esquire, Assistant City 8 Attorney, 647 City Hall, St. Paul, Minnesota 55102 , appeared 9 representing the Plaintiff. l0 11 * * * 12 i 13 WHEREUPON, the following proceedings were duly had: -- 14 15 * * * 16 17 MR. KLEIN: Does anybody want to say 18 anything else? Mr. Hennessey, why don't you 19 identify yourself for the record by the way? 20 MR. HENNESSEY: Your Honor, my name is 21 Robert J. Hennessey and I represent Naegele 22 Sign Company. I'm here with the witness who 23 is Michael Cronin with respect to what's just 24 been made in the form of an offer of proof of 25 why this witness' testimony is somehow CHRISTOPHER L. COLUMBUS COURT REPORTERS : . . 9/--��7� 3 1 relevant to these proceedings. Your Honor, I 2 don't believe that it's an adequate basis for 3 this witness to have to testify in these 4 proceedings. With respect to the matter in 5 which Mr. Gray referred to me and I want to 6 make the following offer of proof to you with 7 regard to the notice. On or about September 8 lOth of 1990 the City of St. Paul through its 9 maintenance and forestry section an individual 10 named Gregory A. Reese sent out a notice to 11 all the companies relative to tree protection 12 in the city of St. Paul by a letter dated ; � 13 September lOth, 1990 notifying them that they 14 should be aware of the code section which 15 provided that it was unlawful to cut down 16 trees. Naegele made a contact with the City 17 of St. Paul to determine whether or not that 18 was directed to them. In the course of that 19 contact they were told that there was going to 20 be a hearing against Midwest. I contacted the 21 city attorney's office, asked them if the 22 hearing had been scheduled yet and whether the 23 hearing was a public hearing. Was told by Mr. 24 Byrne that it had not been scheduled yet but 25 that he put me on the document notifying me of CHRISTOPHER L. COLUMBUS COURT REPORTERS . ^ ��`c�� 7� 4 1 the date and those are the reasons my name 2 appears on the document which was sent out by 3 the city attorney's office. And if that forms 4 some basis of why Mr. Cronin's testimony is 5 relevant, Your Honor, I don't think it's an 6 adequate basis to have Mr. Cronin's testimony 7 compelled in this hearing. 8 9 " 10 11 12 i 13 14 15 16 17 18 19 20 21 22 23 � 24 25 CHRISTOPHER L. COLUMBUS COURT REPORTERS � , . _ , ��/_�� 5 REPORTER'S CERTIFICATE I, Kathleen Columbus, do hereby certify and state that I recorded in shorthand the partial transcript of the administrative hearing re City of St. Paul vs. Midwest Outdoor Advertising on the 12th day of April, 1991, at St. Paul, Minnesota. I further certify and state that thereafter and on this date I caused to be transcribed into typewriting the foregoing typewritten transcript of said recorded proceedings, which� transcript consists of the preceding 4 typewritten pages. I further certify and state that the foregoing typewritten transcript of said recorded proceedings is true and correct to the best of my ability. HLEEN COLUMBUS Co rt Reporter ■hAl�An/�MnAnn,�nM/�IV�MAAAnN/�nnr,MM n ! zi�=�"'�.. KATNLt'EN CCLUMBUS � `'`'ri��«� N07n5Y ?L'�LfC-i�tliliicSC*.1 � Dated this day Of AL1C�t1St� 1991. � �. RAMSEYCCUr:r•r t My Camm.£xplres Fsb.11,1993 � 7 WNW�/�MMn/�/VWWWWVVVWWWVW� CHRISTOPHER L. COLUMBUS COURT REPORTERS TELEPHONE 803 COMMERCE BUILDING (612) 224-5415 ST. PAUL, MINNESOTA 55101 ° � � /�,-��-�,�� ,- December 11, 1991 �ECEIVED TO: Council President Bill Wilson and the Members of the City Council t�EC 111991 FROM: Peter C. Remes �:iTY (;�ERK Midwest Outdoor Advertising 99 North Snelling Avenue St. Paul, MN 55102 and John E . Thomas Attorney at Law We have changed the draft of the proposed Resolution to conform to the terms in our letter of 12/9/91 and the Council meeting of 12/10/91 at which only the provision for charities was considered and discussed between us . You will see we have added an Item 6 . This comes from the. Administrative Law Judge report and current permit processing de�ays . Here is my calculation of some of the costs the Rssolution proposed by the City Attorney' s office will cause my small business to incur (at a minimum) in the coming twelve months : 1 . Income loss from sign at 201 N. Snelling = $ 9, 600 .00 2 . Demolition cost-removal = 3,500 .00 3. Lost revenue to charities = 19, 075 . 00 4 . Production costs for charities boards = 5 . 450 .00 Total lost business and revenue in City of St. Paul: $39,725.00* *Note: The Administrative Law Judge recommended a 20-day suspension only, and found that Midwest had "paid enough in lost revenue due to fly specking and delays of permit applications . " . �� .�7� December 11, 1991 2age 2 M TDOO TISING By Peter C. Remes President cc: Earl Gray Thomas Weyandt ALJ Allan W. Klein Chris Nicosia G j��_°�� 7 3 �`.. Council File # Green Sheet # RESOLUTION CITY OF SAINT PAUL, MINNESOTA Presented by Referred to Committee: Date RESOLVED, that all of the licenses, including sign hanger and building contractors license, issued for Midwest Outdoor Advertising, 99 North Snelling Avenue, Saint Paul, are hereby suspended for a period of 30 days, commencing upon the date of publication of this resolution; and be it FURTHER RESOLVED, that this suspension shall be stayed for a period of one year upon satisfaction of the following conditions by the said licensee: 1 . Within 30 days of expiration of existing ax�vertisina cor_tracts, remove advertising sign . located at .2.01 North Snelling and at 234 North .Snelling to conform ±o a �ingle facing. 2 . Each of ±�he poster billboard signs owned by Midwest Outdoor Advertising within the City of Saint Paul must display a community services advertisement at no cost for a period of 30 days during the next 12 months . The advertisement must be given to any not for profit or community based organization from within the City of Saint Paul. Midwest Outdoor Advertising shall advise the BIDD not less than 5 days in advance of the beginning of this period, giving the exact location and dates during which the sign will display the community service advertisement. The signs shall be provided to community service organizations on a first come, first serve basis without discrimination. Licensee shall provide BIDD with a list of agencies applying for sign space every 30 days. 3 . Obtain all required building permits for all work performed in the City of Saint Paul and comply with the zoning and building ordinances of the City. . ��7� 4. Meet with the Director of the Building Inspection Design Division of the City of Saint Paul within ten ( 10) days of the publication of this resolution to indicate its intent or lack of intent to comply with these conditions, and the procedures for implementing such conditions; and 5 . Pay to the City of Saint Paul the sum of $750 for the tree that was trimmed at Rice and Rose, within 30 days of the effective date of this resolution. If payment occurs at a later date the amount paid must be $1, 100 . 6 . Provide BIDD with a confidential inventory of all signs located within the City of Saint Paul, along with the expiration date of the current advertising contract for each sign. 7 . There shall be no "fly specking" or inordinate delay by the BIDD hereafter in considering or handling Midwest ' s permit applications, signs or other business matters . FURTHER R�SOLVED, that the Findings of Fact and Conclusions of Law of the ALJ dated October 31, 1991, are expressly ratified and adopted as the written findings and conclusions of the Council, except that the Recom�nendations and Memorandum of the ALJ are not :adopt�d oY' :aFproved; and be it This resolution is based on the record of proceedings before the Administrative Law Judge, including the hearings on February 12 and 14, April 12 and July 19, 1991, the documents and exhibits introduced therein, the arguments and statements of counsel for the parties on November 26, 1991, and the deliberations of the Council in open session on November 26, and December 5, 1991 . The Findings of Fact and Conclusions of Law of the ALJ are expressly incorporated in and made a part of this Resolution. A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge, and to the - counsel for the license holder. Requested by Department of : By: . �� Form Approved by City Attorney Adopted by Council: By Date: Approved by Mayor for Submission to Council Adoption Certified by Council Secretary By By: Approved by Mayor: Date: By: