This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-95-2535

C.L. Hinze, Inc.,
d/b/a Chuck's Bar,
Relator,

vs.

The City of St. Paul,
Respondent.

Filed August 6, 1996
Affirmed
Kalitowski, Judge

St. Paul City Council
File No. 95-1398

John D. Hirte, Thomas J. Norby, Murnane, Conlin, White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for Relator)

Timothy E. Marx, St. Paul City Attorney, Janet A. Reiter, Assistant City Attorney, 400 City Hall, 15 West Kellogg Blvd., St. Paul, MN 55102 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Parker, Judge, and Randall, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant C.L. Hinze, Inc., d/b/a Chuck's Bar, challenges the revocation of its city licenses, including a liquor license, pursuant to a resolution adopted by the City of St. Paul. We affirm.

FACTS

In the 30 months prior to the present incident and resulting revocation, the city twice suspended the liquor license of C.L. Hinze, Inc., including a 1-day suspension for selling alcohol to an obviously intoxicated person and a 15-day suspension for refusing to admit police officers following a 911 call from the bar.

On April 17, 1995, Charles Hinze, the owner of Chuck's Bar, allegedly assaulted an unruly and intoxicated female patron. Although prosecutors never charged Hinze, the city commenced license sanction proceedings. The Administrative Law Judge (ALJ) continued the first hearing due to the patron's failure to appear. The patron later testified that prior to the first hearing, Hinze's 6'2" and 240-pound friend came to her apartment and, for $500, convinced her to sign a "release" petitioning the ALJ to dismiss the licensing matter. Hinze's friend allegedly told the patron that because she signed the release, she could ignore a subpoena and not testify. The patron was subsequently required to testify.

The record at the second hearing revealed that the patron and her husband had several drinks before going to Louie's Bar. The patron was "cut off" at Louie's due to her intoxication and may have been physically removed. The patron and her husband proceeded up the street to Chuck's Bar and purchased beers. The patron mentioned being "cut off" at Louie's and became unruly. Hinze told the patron she was "cut off." The patron then apparently refused to relinquish her drink. Hinze called the patron a vulgar name and the patron responded with an obscene gesture. According to the patron and her husband, Hinze then came at the patron from behind, grabbed her throat with both hands and choked her until the patron's husband separated the two. According to Hinze and his bartender, Hinze never grabbed the patron's neck, but rather used reasonable force to remove her from the bar by placing his hand on her back. A police officer later interviewed the patron and her husband. Although the officer did not observe marks on the patron's neck, he believed she had told the truth about the incident.

Following the hearing, the ALJ died. The parties stipulated to another ALJ reviewing the record and issuing findings and a recommendation. The succeeding ALJ found that Hinze placed "both of his hands around [the patron's] neck, in an attempt to physically remove her from the bar." Based on this incident and the two prior suspensions, the ALJ recommended an 18-day license suspension.

The case proceeded to the St. Paul City Council. The city council adopted the ALJ's findings and made additional findings based on the record. The city council, however, did not adopt the ALJ's recommendation. Instead, the city council revoked the licenses of C.L. Hinze, Inc. by a unanimous vote. The parties agreed to stay revocation pending an outcome on this appeal.

D E C I S I O N

I.

C.L. Hinze, Inc. presents two basic arguments challenging the license revocation. First, it contests the factual findings and credibility determinations made by the ALJ and the city council. Second, it argues the city acted arbitrarily and capriciously in concluding that license revocation is warranted.

Municipal authorities have broad discretion in determining the manner in which liquor licenses are issued, regulated, and revoked. Bourbon Bar & Cafe Corp. v. City of St. Paul, 466 N.W.2d 438, 440 (Minn. App. 1991) (citing Sabes v. City of Minneapolis, 265 Minn. 166, 171, 120 N.W.2d 871, 875 (1963)). An appellate court's review of a municipality's liquor license revocation is limited to whether the city council exercised reasonable discretion, or whether it acted capriciously, arbitrarily, or oppressively. Id. Further, a city council may accept, reject, or modify an ALJ's findings, conclusions, and recommendations. BAL, Inc. v. City of St. Paul, 469 N.W.2d 341, 343 (Minn. App. 1991).

1. Findings of Fact

C.L. Hinze, Inc. argues that some of the ALJ's findings are inconsistent and erroneous. We disagree. The most important finding by the ALJ was that Hinze "placed his hands around [the patron's] neck, in an attempt to physically remove her from the bar." While witnesses presented conflicting evidence, there is record support for this finding. Accordingly, the contention of C.L. Hinze, Inc. that the ALJ erred by accepting some of the patron's testimony and discrediting other portions of her testimony is meritless. See Roy Matson Truck Lines, Inc. v. Michelin Tire Corp., 277 N.W.2d 361, 362 (Minn. 1979) (trier of fact is the sole judge of witness credibility and may accept all or only part of a witness's testimony). Further, we are not persuaded by the argument that because the deceased ALJ witnessed the hearing the succeeding ALJ's credibility determinations should be accorded less deference. C.L. Hinze, Inc. stipulated to having the second ALJ review the record and make findings.

The city council incorporated the findings of the ALJ and made additional findings. C.L. Hinze, Inc. disputes the city council finding that Hinze's actions were violent and occurred against a vulnerably intoxicated patron. This finding, however, is supported by the testimony of the patron and her husband. C.L. Hinze, Inc. also disputes the city council finding that Hinze sought to interfere with the licensing proceeding and dissuade the patron from testifying. This finding is supported by the patron's testimony and the release drafted by Hinze's friend. We conclude the record supports the challenged findings of the ALJ and the city council, and so we uphold such findings.

2. Conclusions

The city council sought sanctions pursuant to three enumerated provisions of the St. Paul Legislative Code, under which the city may take adverse action against a licensee who has: (1) engaged in a pattern of conduct indicating a lack of good character, (2) created a serious danger to public safety or welfare, or (3) engaged in violent actions or assaults. St. Paul, Minn., Legislative Code '' 310.06(b)(6)(c), 310.06(b)(7), 310.06(b)(10) (1995). Adverse action includes license suspension. St. Paul, Minn., Legislative Code ' 310.01. Here, the city council's findings support adverse action under any of the three listed provisions.

C.L. Hinze, Inc. contends that even if this court upholds the findings of the ALJ and city council, the revocation was arbitrary and capricious. C.L. Hinze, Inc. stresses that the city failed to follow its own presumptive penalty matrix for license violations. See St. Paul, Minn., Legislative Code ' 409.26 (b) (1994). Under the matrix, license revocation often does not result until a fourth violation appearance, whereas this incident was the third appearance for C.L. Hinze, Inc. However, the matrix applies to several listed offenses but does not refer to "assault on a patron." Thus, the present offense is unlisted, and the matrix is not generally applicable.

Further, even if we applied the matrix by likening assault to one of the listed offenses, the matrix allows for deviation from the presumptive penalty where the city council provides "substantial and compelling" reasons. See St. Paul, Minn., Legislative Code ' 409.26 (a). Here, the city council articulated written reasons in support of its decision, including the fact that (1) C.L. Hinze, Inc. has a history of violations, (2) Hinze committed the act against the patron, rather than an employee, (3) the patron was intoxicated and vulnerable, (4) Hinze's grabbing the patron around the neck constituted a significant act of violence, (5) Hinze later attempted to interfere with the licensing proceeding and dissuade the patron from testifying, and (6) St. Paul needs progressively tougher penalties for multiple violations. In light of these findings we conclude the city council properly supported a deviation with substantial and compelling reasons.

The duly elected city council acted within its broad discretion in revoking the licenses of C.L. Hinze, Inc. Although revocation is a harsh remedy, the city council has the authority to impose punishment different than that recommended by the ALJ. BAL, Inc., 469 N.W.2d at 343. As the supreme court has stated

[n]o citizen has an inherent or vested right to sell intoxicating liquors, and municipal authorities have broad discretion within their geographical jurisdiction to determine the manner in which liquor licenses shall be issued, regulated, and revoked.

Sabes, 265 Minn. at 171, 120 N.W.2d at 875. Accordingly, we conclude the revocation was neither arbitrary nor capricious.

II.

C.L. Hinze, Inc. argues the city's action, when coupled with an ordinance that would prohibit relicensing at the site of Chuck's Bar, amounts to a regulatory taking. This issue was neither addressed nor at issue below in this licensing action. Because this court does not have original jurisdiction to consider this issue for the first time on appeal, we decline to do so. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate court may only consider those matters presented to and considered by the district court).

Affirmed.