*1 act his but the nature comprehend able to he was time This unjustified.” was act that such to determine was “unable decision necessary not finding gratuitous and only proceedings commitment issue in the county court. hospitalization required mentally ill and defendant whether society, the decision protection of welfare or for his own litigating whether estop state from issue not of that does wrong. act was he knew his Gaulke shot the time defendant Affirmed. B. v. CITY OF WAJDA
ANTOINETTE AND OTHERS. MINNEAPOLIS 2d 455. 246N. W. 24, 1976 September No. *2 Guzy,
Barna, Hynes, Jensen, D. Graneóla and Gabriel Gian- & cola, appellant. for Jr., City Attorney, Alfton,
Walter J. Duffy, As- and Robert J. City Attorney, respondents. sistant for Todd, Justice. Wajda appeals
Antoinette B. from an order the district sustaining Minneapolis City deny- court the action of the Council ing an. her 3.2 by on-sale beer1 license owned premises operated grounds 3.2 as a tavern since 1954. The two stated support of this denial were li- the misconduct of former operating Wajda, censees while the tavern as tenants Mrs. unsuitability neighborhood and the of the tavern in which it was located. We reverse and remand. Wajda
Mrs. owner of the at 3658 Street 1/2 E., Minneapolis. N. acquired She and her late prop- husband erty operated in 1954 and a 3.2 tavern thereon under license from city Minneapolis years. for several After the death Mr. Wajda 1961, Wajda operated Mrs. on own business under a license February issued to her in 1965, 1962 until when leased to another licensee. This licensee sub- sequent operation licensees continued the of the tavern until 1970. During 16-year period, this entire operated the business was without violation of the law. property acquired
At time by Wajdas, it was 1 See, Minneapolis Ordinances, Code of § 360.10. to residen- property rezoned 1963, commercial.
zoned In a non- premises as operate on the tial but the tavern continued conforming use. sons, 1970, of her Wajda premises to one
In Mrs. leased the During Anthony Wajda, until operated the business J. who violating charged ordi- operation he with his business liquor nonintoxicating regulating operation estab- nances inspector’s police license lishments. was warned applica- guilty, upcoming his renewal office that he was if found approved. transferred the license tion would not He therefore Patterson, apparently no with D. who had association John good. son, or her and whose record was However, operation of Patterson’s offenses, violations, license as other oc- numerous beer as well signed addition, thereon. 32 residents of area curred nuisances, complaining petition operation caused various patrons. a result of the tavern and the conduct of its As of these violations, inspector’s Patterson was called into the license office *3 why and asked to show not cause his license should be revoked. closing go- He inspector told license that he was the bar and ing 18, 1974, out of business. On the license for October premises up picked returned and to the license division. license,
Shortly Wajda, after Patterson turned in his Mrs. stat- money ing losing empty building, applied that she was for on premises. license for the that an on-sale beer She stated manage would the bar and that she would assist brother-in-law any him. have She also stated that neither of her two sons would ownership operation connection with the or of the business. The inspector plaintiff’s license refuse sent notice an intention to January January 31, 1975, application 29, license on 1975. On hearing (by plaintiff a notice to held was served with be Council) Minneapolis City of the Consumer Services Committee recommendations, inspector’s report such hear- and on the ing represented 12, February was held on Plaintiff hearing, testimony at the hearing. result counsel at the As a granted, past were that the license
the committee concluded if reasonably likely recur. problems would be on finding conclusion, reaching relied on its the committee this plaintiff which had occurred that knew of the violations operation and her Patterson’s her son’s and might acknowledgment upon called sons be counsel’s granted help tavern, li- to run a. were cense. question was
The committee also concluded that the address in not a location an on-sale Fifteen suitable beer establishment. neighbors appeared opposition granting license. hearing testified at the that an on-sale beer establishment Some compatible neighborhood; past not opera- with the nuisance, peace tranquility upsetting tion was a serious neighborhood; closing entire and that since the busi- ness, quiet, past prob- the area has been with no recurrence of . lems. judge
The trial determined that the committee’s conclusions “supported by arbitrary, capricious were the evidence not accompanying or unreasonable.” In his memorandum his brief order, holding judge explained his as follows:
*“* * licensing authority hearings giving conducted plaintiff adequate opportunity to heard. The record discloses complaints involving going this beer license back over several years. plaintiff always Granted the not licensee but all times material did have an interest should, degree, at least to some be held accountable for the ac- place tivities take at the establishment.” (1) Minneapolis City The issues are: raised Did the Council arbitrary, capricious, act in deny- or unreasonable manner plaintiff’s ing application for an on-sale beer license on the basis *4 operating of the unfitness of former licensees the same by which at all relevant times plain- have been owned (2) Minneapolis City tiff? Did the arbitrary, Council act in an capricious, or denying plaintiff's unreasonable manner in appli- finding that a license the basis of cation for an on-sale on beer an on-sale beer in location for are an unsuitable establishment? observe, city considering issues, a we first determining whether
council is with broad discretion vested scope license, a court’s or not issue or renew a 3.2 beer one, should a narrow which review such determination is Municipal cautiously. See, generally, Khyne, be exercised most Law, 27-8; Dunnell, Dig. (3 ed.) Appellant 10A has § § cases, any, cited no has re nor have we found where this court legislative body denying liquor versed a decision of a or beer application. Nevertheless, all exercises license is case with as licensing by agencies, of discretion administrative authorities “ arbitrarily capriciously ports must not act or inter will [c] grant prevent discretionary power; fere to an will abuse of unreasonable, arbitrary, capricious, relief from or fraudulent municipal McQuillin, Municipal action authorities.” Cor porations (3 ed.) 10.37. § par-
A careful review the facts and circumstances of this ticular case has convinced us that council’s action Wajda’s denying application arbitrary capri- was so reversal, light general cious as to necessitate our even our discretionary type. reluctance to overturn decisions of this We conclude that the record herein does not substantiate either ground support cited council in of its decision as af- fording adequate an basis therefor. ground
As to the first for the council’s decision—the mis any per conduct of other licensees —the record fails to disclose drawing missible basis for inference as to Mrs. adverse Wajda’s ability properly operate the tavern from the fact that operated responsibly. others who the same did not do so contrary, Wajda competent undisputed On the fact that Mrs. ly together ran the both with her hus business herself and years, period a total of 11 which there were no band for significant extremely complaints neighbors, violations or from *5 properly operate of her fitness to same
persuasive evidence Indeed, candidly city for the in. the future. counsel Wajda’s argument, record acknowledged, oral that Mrs. character, impeccable, and licensee, are as a former and her both qualified fully was a of accounts Mrs. on both applicant. argument city Mrs. contrary,
To the at oral contended Wajda’s in properly operate premises was cast to fitness actions, rather, by doubt, her not her own misconduct of but they operated son and John Patterson while tavern. city management In part, contended that under the licensees, acquired reputation and a bad these former the tavern “hangout” ele- undesirable and criminal became a favorite city. city parts asserted ments from other of the Counsel for “strong” repu- very person this that it take to overcome would operating previous tation to mode of and return tavern its neighborhood legal Counsel without violations or disturbances. specify respects did not in failed what age (58) and her sex. This meet this criterion other than her to 58-year-old presumptively conclude that a woman is court cannot forcefully managing in competently tavern incapable prevent ex- way like those such a as to infractions nuisances occurring again. perienced past in find a determina- from We prejudges operational capabilities, par- negatively tion which ticularly light undeniably past performances, to able arbitrary, capricious, clearly and unreasonable. Wajda’s speculations incapacity as Mrs. to city’s
If experience, properly operate by actual are borne out license, always power as would have the to rescind the doing contemplated it had case of D. im- John Patterson’s speculations premises. proper operation these same Such af- cognizable refusal to issue in the ford for the the license no basis place, first however. ;of argument city’s that the misconduct aspect
Another negative factor a as considered should be former licensees position'that as the Wajda’s application is its evaluating Mrs. licensees, and the unsuitable landlady of these former of both their im them, have been aware of she must mother of one of anything to operation premises and failed do proper evidence, contrary patently prevent it. Such a conclusion any Wajda possessed interest that Mrs. which does not disclose preceding li operations of these two of either business *6 Indeed, any their noth power or of control over actions. censees Wajda any ing contact or Mrs. had record indicates that relationship other than as his land whatsoever with Patterson lady. nothing Finally, the record demonstrates Mrs. Wajda any knowledge illegal The of her misconduct. had tenant’s negligent imputed a land or conduct of tenant cannot to his See, generally, Negligence, By S., taking lord. 65A J. C. § city seeking position, obligation a the is in to shift such effect its nonintoxicating liquor enforce to its onto the ordinances lessor impermissible delegation responsib of licensed an of ility.2 imposition We conclude that the of such lia vicarious bility permissible represents capricious, is not arbitrary, and and Minneapolis City action unreasonable the Council. respect ground to
With the second for the denial Mrs. Wajda’s application, we hold the council’s determination that premises the are unsuitable for on-sale beer establishment contrary to be evidence contained the Prior record. to rezoning, existing zoning specifically permitted the very being premises. use nonconforming made of the Such use grandfather was allowed provisions to continue under the zoning law, new attorney argument and the conceded on oral property’s Mrs. had not abandoned nonconform- 2 appears It (2) permit that Minn. St. 340.19 would of an denial intoxi cating liquor premises upon to license a lessor of licensed which viola provision validity tion of law has The occurred. such is not before us. termination anything bring to else about
ing use nor done use. pro- neighbors present lodged by complaints and improper business ceedings conduct of the with the all dealt preceding li- operated by the two patrons it its while was indicated that substantial evidence censees. No inherently of a tavern as the location unsuitable themselves were managed operated. lawfully properly were if tavern deny- reason for hold that council’s second therefore We clearly application is ing Wajda’s 3.2 license also arbi- beer Mrs. trary, capricious, and unreasonable. scope judicial above, review when
As indicated narrow, appealed very application is denial a license normally discretionary such decisions sustain this court will However, case, municipal rare such as facts bodies. arbitrary disclose, patently where such a denial is herein prevent capricious, hesitate order to mani- will not act in we injustice. fest herein, set matter
For the reasons forth is remanded directing court with instructions to enter its order district Minneapolis City to issue an on-sale 3.2 beer license Council at the involved. here *7 Eeversed and remanded.
Otis, (dissenting). Justice agree appropriate depart .1 that is an case cannot this from precedent municipality’s and for the time first reverse a exercise discretionary denying operate of its function of a license to a tavern. beer hearing
After full before the a council’s Consumer Committee, persons appearances at made Services which license, object findings the committee following made the conclusions, among and others: 1970, neighbor complaints
“Since several criminal and were investigated. fully received and These incidents are more ex- report plained Inspector the of the License to this Committee applicant incorporated by That the reference. knew and are As a them. problems abate of .these and was result unable voluntarily violations, complaints the business continued , 18, 1974. in on October and the license turned closed may Anthony an em- applicant that her son “The states Wojto- manager business; ployee in the will be Chester the wicz, brother-in-law. *****'
“* * * neighbors That on-sale numerous testified beer compatible neighborhood; that the with the establishment is not nuisance, peace upsetting past operation the serious tranquility neighborhood; since clos- the entire ing quiet there has business the area has been been problems. past no reoccurrence of the a|e a|« s|e
“* * * granted license, appears applicant That if this it reasonably likely problems past that the that existed in will again occur.” report, adopted
Thereafter council the committee with only abstaining. one councilman affirming city council, the action of the the district court following findings:
made “The licensing court has reviewed actions taken au- thority Findings and finds that Fact and Conclusions of Law of City Consumer Services Committee Council are supported capricious arbitrary, evidence and not or unrea- sonable under all par- of the facts and circumstances of this licensing authority hearings case. giving ticular The conducted plaintiff adequate opportunity to be heard. record dis- complaints involving going closes this beer license back over years. several plaintiff always , was not Granted the licensee at all times material have an premises,and blit did interest should, at degree, least to some accountable,for be held ac- .the place that take tivities establishment.” . . *8 appellant is, first, majority’s opinion that the The basis for the misconduct; second, she that knowledge her tenants’ no had actions; un- third, that had an she their and no over had control The ma- operated the tavern. when herself record blemished argue contrary the evidence jority patently it that holds the numerous ordi- Wajda have aware of must been that Mrs. tenant, Patterson, her son of which nance violations guilty. had my opinion that she the inference were Lawrence neigh- overwhelming. Thirty-two knowledge offenses is of these blaring city complaining joined petition of music bors in a urinating windows, through open customers doors and racing engines, motorcycles street, their automobiles littering surrounding According papers beer cans and area. February 12,1975, meeting of to minutes Consumer neighbor Committee, felt one testified sure Services “[h]e everything going knew of on then that Mrs. was it,” present part when a because she was with her sons was made, complaint and the committee threatened to close the was permanently During tavern if there were further violations. Anthony operating property, time her son tavern on Anthony, son, Lawrence, tavern worked at the with who another following charged offenses: with liquor 854.190, permitting on the Ordinance Violation of § hours, 853.090, operating after of Ordinance Violation § gambling equip- 874.040, permitting Violation of Ordinance § premises.1 on the ment city attorney, agreement plea Lawrence with
Under a charge charges third and the first convicted of the second and mother, who I find it hard believe was dismissed. 1 Minneapolis completely Code of Ordinances has been recodified. under which Lawrence and John Patterson were The ordinances Minneapolis 362, 368, Ordinances, charged found in Code of cc. now are 385, and-387. *9 premises, totally of
owned the was unaware the violations convictions, of Lawrence.
After he convicted John Patterson became licensee following ordinance violations: 856.030, permitting Violation of liquor Ordinance on un- § licensed 854.190, permitting liquor prem-
Violation of Ordinance on § beer, ises licensed for 854.090, remaining open hours,
Violation of Ordinance after § 870.140, operating disorderly Violation of Ordinance a § house, 874.040, possession gaming
Violation of Ordinance equip- § ment, 874.010, allowing gambling
Violation of Ordinance on the § premises.
The specifically council Wajda found that Mrs. “knew problems these and was unable to abate them.” I submit that compelling there is findings support evidence to concurred in the district court and that for there is no basis whatever charging that the council capriciously in arbitrarily acted reaching my opinion their conclusions. In simply court is this findings substituting its those of the council district court. argues majority attempt that to to assert
The for Mrs. any power impermissible or control over her tenants would be an delegation responsibility. respect intoxi- to the sale of With quite contrary. cating liquor, policy state is penalties analogous imposes situation, 340.19(2), that Minn. St. by limiting for a tenant’s violations on the owner any Apart premises. license on the from issuance of further statute, simply however, not true that Mrs. it is Clearly the law she had powerless under to control her tenants. being property used right her lease where to cancel right would be denied unlawfully. that such It is inconceivable her. ability respect has demonstrated to the claim
With law, compliance it should herself with operate the tavern to actually only years, that she did so for noted that she 1/2 widow, by her 58-year-old counsel’s own admis- and that now a is sons, having the close connection ties of [coun- sion “because daughters help.” her sons or sure that she will have felt sel] past problems which existed council found likely again my opinion fully evidence would occur It of Mrs. supports that obvious a widow conclusion. increasing degree Wajda’s age depend on sons will have inability *10 or their indifference to observe who have demonstrated expected a constant cannot be to maintain law her Patterson com- vigil prevent kind of violations son and noted coun- likelihood reoccurrences mitted. also the district court is manifest. cil and Finally, suggested deny argument it has oral been deprives property her a license somehow without submit, argument, This I merit process law. is without due concedes, majority property the As owner several reasons. no right operate a li- has a constitutional a beer If such tavern. denied, property to be is continues zoned for noncon- cense forming purposes commercial and is available for lease to other prop- commercial for other uses. The market tenants value of erty remains unaffected.
In the face numerous ordinance violations committed by plaintiff’s son, unwillingness her tenant and her demonstrated inability operation prem- to control the or tavern on gross ises, nature of the disturbances has it inflicted on neighbors, my opinion majority’s conclusion that arbitrarily capriciously council wholly acted without Accordingly, foundation. I would affirm the decision of the dis- court. trict
Peterson, (dissenting). Justice join of Mr. Otis.
I the dissent Justice MacLaughlin, (dissenting). Justice Otis. Mr.
I dissent of Justice concur AND ANOTHER. v. ALVIN WAGNER MARIE GUERRERO 2d 246N. W. 838. September 24, 1976 No. *11 Severson,
Brink, K. relator. & Severson Robert Sobolik Ehlmann, Spannaus, General, Attorney Warren Winston Attorney curiae, seeking General, amicus affirmance. Assistant Rogosheske, Peterson, Todd, JJ., before and con- Heard sidered and decided the court en banc.
Todd, Justice. attorneys Guerrero, widow, a settle- for Marie achieved