This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-99-438

Walter Bland,
Relator,

vs.

City of Minneapolis Public Works/Engineering
and Traffic Division,
Respondent.

Filed September 7, 1999
Affirmed
Anderson, Judge

Minneapolis Civil Rights Commission
File No. 94125PS1A

George H. Smith, Trawick & Smith, 330 Second Avenue South, Suite 702, Minneapolis, MN 55401 (for relator)

Jay M. Heffern, Minneapolis City Attorney, Dana Banwer, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Anderson, Presiding Judge, Toussaint, Chief Judge, Randall, Judge.

U N P U B L I S H E D   O P I N I O N

ANDERSON, Judge

Relator appeals an order of the Minneapolis Civil Rights Commission dismissing his claims of racial discrimination. We affirm.

FACTS

Relator Walter Bland operated a hot dog cart and vending business in the Twin Cities under the name M & W Concessions. In 1990, relator began the process of applying through respondent Department of Public Works/Engineering & Traffic Division for a permit to allow him to place a vending machine on the sidewalk at "Block E" in downtown Minneapolis. Respondent told relator it would recommend that the city council deny the permit because it was apparently prohibited by city ordinance, the proposed location of his vending machine would impede pedestrian traffic, and relator was not an abutting property owner.

But the involvement of a city council member prompted the city, in December 1990, to grant relator a permit to place a vending machine on city property at 516 Hennepin Avenue (transit site). This property, though owned by the city, was not a public right-of-way and, thus, not subject to the same concerns as the Block E location.

Relator received a follow-up letter from respondent explaining that, as a condition of the permit, relator had to make sure that the machine and the surrounding area stayed clean. In April 1991, relator was notified that the neighboring Hennepin Center for the Arts complained that his vending machine at the transit site was defaced by graffiti, and there was cardboard littered in the area (apparently from the boxes used to deliver pop cans before being loaded into the vending machine).

Relator took unsuccessful steps to clean up the area. Finally, on July 16, 1991, relator was informed that the city had revoked his permit because of the machine's appearance and associated litter. He was ordered to remove the machine from the transit site and finally did so in the fall of 1991.

On May 20, 1994, relator filed a discrimination charge against respondent with the Minneapolis Civil Rights Commission, alleging that the city's revocation of his permit for the transit site was a discriminatory act against relator, who is an African American.

From the spring of 1993 through the summer of 1994, relator had informal discussions with respondent about placing vending machines on sidewalks in various places in the city but did not complete any applications.

On July 21, 1994, Rebecca Law, an employee of respondent, informed relator that respondent would no longer process relator's informal inquiries about vending machine sites unless he filed a formal application, including the application fee. So, in 1995, relator filed formal applications for ten different vending machine sites throughout the city. Respondent then began its normal investigation process and reported on each site. Respondent recommended that the city council deny all of relator's applications because each of the sites was on a public right-of-way. The reasons for the recommendation included potential (1) litter, (2) commercial competition with abutting landowners, (3) violation of city ordinances, and (4) pedestrian traffic problems. Respondent also noted that relator was not an abutting property owner, for whom respondent will occasionally make accommodations.

On July 5, 1995, the city clerk notified relator that his applications were denied by the city council. Relator then amended his discrimination charge on October 27, 1995, to include the denial of his 1995 applications.

The Minneapolis Civil Rights Commission conducted a full hearing over five evenings. It then issued an order on January 29, 1999, dismissing relator's claim arising from denial of his 1995 applications because relator failed to establish a prima facie case of discrimination. The same order also dismissed relator's claim from revocation of his transit site permit because the statute of limitations under a Minneapolis ordinance had expired.

This appeal follows.

D E C I S I O N

This order of the Minneapolis Civil Rights Commission (commission) is reviewed upon a writ of certiorari as allowed by Minn. Stat. § 14.64 (1998). On review, this court may reverse or modify the commission's decision only as allowed by Minn. Stat. § 14.69 (1998).

I. The 1995 Claim

To maintain a discrimination claim, the claimant must establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973); Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 (Minn. 1983) (applying McDonnell Douglas test). The prima facie case may be rebutted by evidence that there was a nondiscriminatory reason for the action. McDonnell Douglas Corp., 411 U.S. at 802, 93 S. Ct. at 1824. The burden then shifts back to the claimant to establish that the alleged reasons are merely a pretext for discrimination. Id. at 804, 93 S. Ct. at 1825.

The commission found that relator failed to establish a prima facie case. In the employment context, a prima facie case is shown where the claimant was a member of a protected class, qualified to do a job, discharged from that job, and the job remained open or was given to others with the same qualifications as the claimant. Hubbard, 330 N.W.2d at 442. Similarly, here, relator would make his prima facie case if he were a member of a protected class, qualified to receive permits, denied permits, and similarly situated non-class members were granted permits.

There is no dispute that relator is an African American and a member of a protected class. Relator claims there is insufficient evidence to support the commission's conclusion that relator was unqualified for a permit to place vending machines on a public right-of-way. But Rebecca Law testified that permits for an encroachment on a right-of-way were typically for an awning, retaining wall, or similar encroachment by an abutting property owner. Additionally, ordinances prohibit the sale of goods on public sidewalks and provide a list of encroachments that may be permitted within certain parameters. See Minneapolis, Minn., Code of Ordinances §§ 95.10-.150 (1991) (permitting certain encroachments); § 427.30 (1991) (no structure may obstruct sidewalk); § 427.110 (1991) (prohibiting display of merchandise on sidewalks); § 427.130 (1991) (prohibiting sales on sidewalks). Vending machines owned by persons who are not abutting property owners are not included in the list of permissible encroachments. See Minn. Stat. § 645.19 (1998) ("Exceptions expressed in a law shall be construed to exclude all others."); Minneapolis, Minn., Code of Ordinances §§ 95.10-.150 (providing for projections, footings, masonry, balconies, stairs, public telephones, eaves, areaways, awnings, canopies, and marquees).

There is no dispute that relator was denied permits. Relator challenges the commission's finding that no members of an unprotected class have been granted the permits for which relator applied. But Rebecca Law and Michael Monahan testified to the commission that nobody else has ever applied to respondent for a permit to place vending machines on a public right-of-way. Law also testified that respondent has denied other encroachment requests, including applications from individuals in nonprotected classifications, and respondent campaigned in Northeast Minneapolis to remove pop machines from public sidewalk.

Relator offered photographs from 1993 of pop machines on sidewalks as evidence that some people get the kind of permit relator sought. But there was no evidence that permits were granted for pictured machines. The mere presence of the machines does not mean that respondent knew of the machines because, as Rebecca Law testified, respondent investigates only written complaints of encroachment violations. Additionally, Roger Nubbe, a license inspector for respondent, testified that only some of the machines pictured were located on public right-of-way at the time the photos were taken; some of them were on private property. He also testified that he had, just the day of his testimony, investigated those sites and found that only one of the machines that was on the public right-of-way in relator's photographs was still located on the public right-of-way. Nubbe cited the Caucasian owner of the machine and ordered him to remove it.

Relator also argues that he is treated differently from members of unprotected classifications who own sidewalk cafes. But relator offered no specific evidence of these sidewalk cafes. Moreover, there was testimony that sidewalk cafes are not similarly situated because they must be removed every night when the restaurant closes, and their permits come from a different city agency. Relator presented no evidence of disparate treatment in the issuance of sidewalk cafe permits and, in any event, relator was not seeking a restaurant permit. Additionally, respondent's right-of-way specialist noted that sidewalk cafes are typically located at a place where the sidewalk is wide enough to accommodate the encroachment and pedestrian traffic. There is no evidence that relator's proposed sites shared this characteristic.

There is substantial evidence to support the commission's finding that relator did not establish a prima facie case of discrimination.

II. The 1991 Claim

The department dismissed relator's claim that the city discriminated against him when it revoked his permit to maintain a pop machine on public property. The department found that the claim was not timely under a city ordinance. Construction of a statute of limitations is reviewed de novo. Ryan v. ITT Life Ins. Corp., 450 N.W.2d 126, 128 (Minn. 1990).

Relator's permit for the transit site was revoked by city council action in 1991, and relator filed his discrimination claim in 1994. A discrimination claim may be filed with the commission within one year of the alleged discriminatory action. Minneapolis, Minn., Code of Ordinances § 141.50(a) (1991). Relator concedes that more than a year elapsed between revocation of his permit and the time he filed a claim.

In the discrimination context, an incident outside the statute of limitations may be actionable if it is part of a continuing violation. Hubbard, 330 N.W.2d at 440 n.11. A continuing violation is one that shows a systematic repetition of discriminatory behavior, indicating that an incident outside the statutory period was integrated with other incidents in a discriminatory act. Id. To qualify for the exception, the early incident must be continuous with a discriminatory incident occurring within the limitations period. Giuliani v. Stuart Corp., 512 N.W.2d 589, 595 (Minn. App. 1994).

As discussed above, the denial of relator's applications in 1995 was not discriminatory. There were no other alleged discriminatory incidents between relator and respondent. Because the revocation of relator's permit in 1991 is not continuous with any discriminatory incident within the statutory period, it is barred by the statute of limitations.

Affirmed.