This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-02-1798

 

 

Austin Diversified Products, et al.,

Relators,

 

vs.

 

City of Andover,

Respondent.

 

 

Filed June 3, 2003

Affirmed

Anderson, Judge

 

City of Andover City Council

 

 

Shawn M. Perry, Stewart R. Perry, Shane C. Perry, Perry, Perry & Perry, Parkdale 1, Suite 270, 5401 Gamble Drive, Minneapolis, MN 55416 (for relators)

 

Susan M. Sager, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103-2044 (for respondent)

 

            Considered and decided by Anderson, Presiding Judge, Willis, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

G. BARRY ANDERSON, Judge

            Relator Austin Diversified Products argues: (1) the City of Andover committed constitutional violations when it denied appellant’s application for a peddler’s license, and (2) even if no constitutional violations occurred, the denial was improper.  Because we conclude that the constitutional issues are not subject to review in a certiorari appeal and the city’s license denial conformed to the applicable legal standard, we affirm.

FACTS

On July 25, 2002, Tyrone Cooper submitted an “Ordinance Number 250A License & Registration Application” to the City of Andover (“city”) on behalf of his employer, Austin Diversified Products (“ADP”).  The application described the activities of ADP as “door to door demonstration and sale of cleaning product[s].”  The application included a list of employee names who would be selling the products door-to-door.

            The city clerk forwarded these names to the sheriff’s department for background checks.  A check revealed a felony warrant in Hennepin County for one of the individuals listed.  The sheriff’s office was not able to process the other names because middle names

had not been provided.  The clerk asked Cooper to provide middle names to further process the application.  Eventually, sometime in early August, ADP’s attorney faxed to the city a list of employees that included middle names.  This list identified relator Burgess as the field supervisor, instead of Cooper.  Some of the names on this list were not the same as provided previously, however.  The city clerk provided this list to the sheriff’s department, requesting any police reports concerning ADP’s employees.

            The sheriff’s department found several police reports dealing with ADP’s employees.  Most of these addressed situations in which door-to-door sales representatives were detained following residents’ complaints.  These individuals referenced ADP when asked for whom they were working, but could not produce valid licenses authorizing the sales activity.  ADP did have a valid peddler’s license in Andover for a period of time, but the company continued selling in Andover after the license expired, and used individuals not specifically identified and authorized by the license.  Consequently, the city clerk sent a letter on August 16, 2002, informing ADP that the city was denying the pending license application because of the prior police incidents involving unlicensed sales.  The letter also informed ADP of its right to appeal to the city council by way of a public hearing.

            On September 6, 2002, ADP requested a public hearing to appeal the decision, and on September 17, 2002, the city council held a public hearing to consider the company’s appeal.  At this hearing, the city clerk provided the city council with a summary of the police reports regarding ADP.  Counsel for ADP also received a copy of the summary at the public hearing; ADP asserts that this was the first time it was provided with this summary.  No one, other than counsel, was present at the hearing on behalf of ADP. 

At the hearing, the city clerk advised the city council that the background check of the only individual for whom ADP provided a full name on the original list of sellers revealed a felony warrant.  The clerk also informed the city council that the request for a complete list eventually produced a new list with some different names, and that a check of police reports on ADP turned up several instances of unlicensed peddling.  In all, the police had 13 incident reports dealing with ADP since 1999. 

            Ordinance 250A contains a provision allowing the city to deny the license to an entity that has previously violated the ordinance.  ADP’s counsel spoke to the city council, claiming that the ordinance was unconstitutional.  ADP’s attorney did not dispute any of the factual grounds upon which denial was predicated.  After some council members expressed their views regarding the governmental interests advanced by the ordinance, the council unanimously passed a motion to uphold the city clerk’s denial of the license to ADP.  ADP has appealed by certiorari. [1]               

D E C I S I O N

A petition for a writ of certiorari is the method by which a party obtains judicial review of an administrative agency’s quasi-judicial decision.  Micius v. St. Paul City Council, 524 N.W.2d 521, 522-23 (Minn. App. 1994).  A city council’s act is considered quasi-judicial if it is “the product or result of discretionary investigation, consideration, and evaluation of evidentiary facts.”  Pierce v. Otter Tail County, 524 N.W.2d 308, 309 (Minn. App. 1994), review denied (Minn. Feb. 3, 1995).  The supreme court has determined that decisions regarding liquor licenses are considered discretionary.  Country Liquors, Inc. v. City of Minneapolis, 264 N.W.2d 821, 824 (Minn. 1978).  We reverse a decision of a city council only if it is “fraudulent, arbitrary, unreasonable, unsupported by substantial evidence, not within its jurisdiction, or based on an error of law.”  See Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 675 (Minn. 1990) (applying this standard to decision of a school board).

ADP contends that the ordinance is an unconstitutional limitation on its right to free speech.  The city responds that this issue is not properly before this court.  We agree with the city.

Case law establishes that a writ of certiorari is not the proper method to challenge the constitutionality of an ordinance and the corresponding authorizing statute.  Honn v. City of Coon Rapids, 313 N.W.2d 409, 414-16 (Minn. 1981).  Certiorari is not available to review legislative acts.  Handicraft Block, Ltd. v. City of Minneapolis, 611 N.W.2d 16, 20 (Minn. 2000).  When adopting an ordinance under Minn. Stat. § 412.221, subd. 19 (2002), the municipality acts in a quasi-legislative capacity, and review by certiorari is not appropriate.  Honn, 313 N.W.2d at 416.  Certiorari review allows for the “nonintrusive and expedient judicial review” of a municipality’s decision and is thus “compatible with the maintenance of fundamental separation of power principles.”  Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992).  ADP’s constitutional challenge to the city ordinance is beyond the scope of review on appeal by certiorari.[2]

The city noted several problems with ADP’s application and its qualifications leading to the license denial: an incomplete list of names, past unauthorized selling conduct, and a felony warrant for one of the people identified on the license application.  The ordinance specifically lists each of these as a valid reason for denying the license.  The record contains the police reports and the information the city relied upon, and the documentation constitutes the “substantial evidence” the case law requires.  Dokmo, 459 N.W.2d at 675.  Additionally, the reasons for the denial, as set forth in the ordinance, are not “unreasonable” or “arbitrary.”Id. 

ADP was allowed an opportunity to address the reasons stated; ADP did not dispute the accuracy of the information upon which the city relied.  Although ADP did not receive a copy of the summary provided to the city council until the actual appeal hearing, ADP did receive a letter one month before the hearing indicating that the license was denied due to the past police incidents.  ADP could have obtained additional information about these reported incidents, and refuted them at the hearing, but chose not to do so.  Given that ADP did not, and has not, disputed that these incidents actually occurred, any concern as to the whether ADP should have received more detailed and timely notice as to the specifics of the police incidents is effectively negated.[3]    

            ADP claims that the city has “unfettered discretion” to grant or deny a license.  The language of the ordinance indicates otherwise, however.  The ordinance specifically defines the grounds upon which the city may deny a license, and ADP’s conduct fell within several of those delineated.  The grounds set forth are not over-broad or vague; instead the ordinance provides “narrowly drawn, reasonable and definite standards” for the license determination.  See Forsyth County v. Nationalist Movement, 505 U.S. 123, 133, 112 S. Ct. 2395, 2402 (1992) (setting the acceptable level of direction an ordinance provides).  Accordingly, the ordinance does not allow for “unfettered” or even unreasonable discretion on the part of the city clerk when making the license decision.  The city’s denial of the license was not improper.     

Affirmed.