City of Duluth v. 120 East Superior Street, Duluth, Minnesota

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0016

City of Duluth,
Respondent,

vs.

120 East Superior Street, Duluth, Minnesota, et al.,
Appellants.

Filed July 28, 2014
Affirmed
Smith, Judge

St. Louis County District Court
File No. 69DU-CV-13-1612

Gunnar B. Johnson, Duluth City Attorney, Nathan LaCoursiere, M. Alison Lutterman,
Assistant City Attorneys, Duluth, Minnesota (for respondent)

Randall D. B. Tigue, Golden Valley, Minnesota (for appellant)

Considered and decided by Smith, Presiding Judge; Connolly, Judge; and

Klaphake, Judge.*

UNPUBLISHED OPINION

SMITH, Judge

We affirm the district court’s permanent injunctions, under both statutory and

common law, against appellants because the district court did not clearly err by finding

*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
that, after the requisite abatement period, the prosecuting attorney had cause to believe

that a statutory public nuisance existed and because each injunction is supported by

unchallenged grounds.

FACTS

The facts of this case are largely undisputed. Appellant James Robert Carlson is

the president and sole shareholder of appellant L.P.O.E., Inc., which operates a retail

store located at appellant property 120 East Superior Street in Duluth. This property is

commonly known as Last Place on Earth (LPOE). Among its products, LPOE sells an

assortment of synthetic drugs, sometimes referred to as “legal alternatives” to controlled

substances. In 2011, following the passage of a state law banning the sale or possession

of certain synthetic drugs, any previous competition disappeared, and LPOE’s synthetic

drug business flourished. See Minn. Stat. §152.027, subd. 6 (Supp. 2011). The success

of LPOE’s synthetic drug business resulted in numerous problems throughout the

community, including stress on neighboring businesses, law enforcement, hospitals, and

social services. As a result of these issues, respondent City of Duluth served LPOE with

a notice of public nuisance. After the statutory period, the city filed a public nuisance

action and moved for temporary injunctive relief. The district court granted the motion in

part, “ordering LPOE to reimburse the public for the cost and maintenance of daily police

presence,” but declining to “order LPOE to suspend its commercial business or restrict or

prohibit the sale of synthetic drugs.” City of Duluth v. 120 East Superior Street, Duluth,

Minnesota, No. A13-0027, 2013 WL 5022523, at *2 (Minn. App. Sept. 16, 2013). LPOE

challenged the temporary injunction, and this court affirmed. Id. at *1.

2
 In March 2013, while the first appeal was pending, law enforcement conducted

four controlled buys at LPOE. During each controlled buy, they purchased at least one

product that subsequently tested positive for a controlled substance. On March 29, law

enforcement executed a search warrant at LPOE and seized products that subsequently

tested positive for controlled substances.1 On May 7, the city served appellants with a

notice of public nuisance; the notice cited the March controlled buys and “the false,

misleading, and deficient branding, labeling, packaging, and sale of products,” in

violation of federal and state law, “on a daily and continuing basis.” On May 17, law

enforcement conducted another controlled buy at LPOE; they again purchased products

that tested positive for a controlled substance.2

On June 19, the city filed a second public nuisance action against appellants,

alleging two distinct types of statutory public nuisance and seeking temporary and

permanent injunctive relief. On July 9, the city moved for a temporary injunction,

“halting the sale of ‘synthetic drug look-alike substances.’” On July 17, appellants

answered the complaint and filed a counterclaim. Appellants asserted that they had

“abated any nuisance premised upon the alleged sale or possession of controlled

1
In connection with these events, the state charged Carlson with nine counts of fourth-
degree controlled substance crime.
2
In June 2013, the city enacted an ordinance that “requires any person, who engages in
the business of operating a synthetic drug establishment, to first obtain a license for such
establishment. The ordinance defines ‘synthetic drug establishment’ as any business
establishment where any person engages in the sale of synthetic drugs.” Carlson v. City
of Duluth, 958 F.Supp.2d 1040, 1046 (D. Minn. 2013) (citations omitted). Carlson
challenged this ordinance in federal court. Id. at 1045. On July 18, 2013, the Chief
Judge of the District of Minnesota denied Carlson’s motion to enjoin enforcement of the
ordinance. Id. at 1045-46.

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substances” and requested “a declaratory judgment that [the public nuisance statute] is

unconstitutional and a temporary and permanent injunction against its continued

enforcement.” On July 18, law enforcement conducted another controlled buy at LPOE;

this time they purchased products that tested positive for a substance that the legislature

had slated for classification as a controlled substance but which was not yet illegal.

On July 19, the district court granted a temporary restraining order, halting

appellants’ business. The city experienced an immediate and drastic decrease in the

number of law enforcement calls, emergency room visits, and social services issues

related to the use of synthetic drugs. The district court granted the city’s motion for a

temporary injunction and, following a court trial, issued a permanent injunction against

the property under Minn. Stat. § 617.83 (2012), on two distinct grounds, and against

Carlson and LPOE under public nuisance common law.

DECISION

I.

Appellants challenge the district court’s permanent injunction under Minn. Stat.

§ 617.83 against appellant property.

A.

Appellants first challenge the district court’s rejection of, in the district court’s

words, appellants’ “proposition that a prosecutor may only commence a nuisance action

upon proof the nuisance is ongoing after the 30 days have passed since [appellants] were

served with the notice of nuisance.” In response, the city argues that “[c]ontrary to the

interpretation advanced by appellants, the Public Nuisance Statute did not give

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[appellants] unfettered license to sell illegal drugs throughout the 30 days following

service of the May 7 notice of public nuisance.” This issue presents a question of

statutory interpretation, which is a question of law subject to de novo review. City of

Moorhead v. Red River Valley Co-op Ass’n, 830 N.W.2d 32, 36 (Minn. 2013).

When interpreting a statute, we must “ascertain and effectuate the intention of the

legislature.” Minn. Stat. § 645.16 (2012). In doing so, we “first determine whether the

statute’s language, on its face, is ambiguous.” Am. Tower, L.P. v. City of Grant, 636

N.W.2d 309, 312 (Minn. 2001). A statute’s language is ambiguous only when it is

subject to more than one reasonable interpretation. Amaral v. Saint Cloud Hosp., 598

N.W.2d 379, 384 (Minn. 1999). We construe words and phrases according to their plain

and ordinary meanings. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d

604, 608 (Minn. 1980); see also Minn. Stat. § 645.08(1) (2012) (providing that words and

phrases are construed according to their common usage). When the legislature’s intent is

clearly discernible from a statute’s plain and unambiguous language, we interpret the

language according to its plain meaning without resorting to other principles of statutory

construction. State v. Anderson, 683 N.W.2d 818, 821 (Minn. 2004).

Under Minnesota’s public-nuisance statute, a prosecuting attorney must provide

statutorily prescribed notice to “all owners and interested parties” before seeking

abatement of a public nuisance. Minn. Stat. § 617.81, subd. 4(a) (2012). Among other

things, the notice must “inform the recipient that failure to abate the conduct constituting

the nuisance or to otherwise resolve the matter with the prosecuting attorney within 30

days of service of the notice may result in the filing of a complaint for relief in district

5
court.” Id., subd. 4(b)(3) (2012). If the recipient of such notice “either abates the

conduct constituting the nuisance or enters into an agreed abatement plan within 30 days

of service of the notice and complies with the agreement within the stipulated time

period, the prosecuting attorney may not file a nuisance action on the specified property

regarding the nuisance activity described in the notice.” Minn. Stat. § 617.82(a) (2012).

However, after the 30-day abatement period, the prosecuting attorney may seek

injunctive relief if he or she “has cause to believe” that a public nuisance exists. Minn.

Stat. § 617.82(c) (2012). Under the statute’s plain and unambiguous language, if a

property owner undeniably abates the nuisance conduct within 30 days of the notice, the

prosecuting attorney may not file a public nuisance action. See City of West St. Paul v.

Krengel, 768 N.W.2d 352, 357-58 (Minn. 2009). The district court erroneously rejected

appellants’ proposition.

This does not end our analysis, however. Rather, we next determine whether the

district court clearly erred by implicitly finding that the prosecuting attorney had “cause

to believe” that a public nuisance existed after the 30-day abatement period. See

Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013) (an appellate

court reviews “the district court’s factual findings for clear error”).3

Appellants assert that because law enforcement did not purchase any illegal

substances from LPOE after the 30-day abatement period, “[t]here was not a shred of

evidence at trial” that appellants had not abated the noticed conduct. We disagree. Here,

3
We note that in its final order, the district court found that appellants did not
“unilaterally abate[] the nuisance after receiving the notice.” To the contrary, appellants
“failed to show that they took any steps to even attempt to abate the nuisance conditions.”

6
the “noticed conduct” included appellants’ “daily and continuing sale and possession of

illegal, misbranded and deficiently labeled consumer articles.” See Minn. Stat. § 617.81,

subd. 2(a)(iii)-(v) (2012) (listing acts constituting a public nuisance). It is undisputed

that, in the months before this action was filed, LPOE unlawfully sold mislabeled

controlled substances with negative side effects on numerous occasions. And the record

demonstrates that, after receiving the notice, LPOE continued with business as usual.

Therefore, although this action was filed before law enforcement conducted a post-

abatement-period controlled buy at LPOE, the district court did not clearly err by

implicitly finding that when the prosecuting attorney filed this action, the prosecuting

attorney had cause to believe that a public nuisance existed at LPOE. Therefore, the

district court did not err by reaching the merits of the statutory public-nuisance claim and

appellants are not entitled to dismissal of the claim.

B.

Appellants next challenge the district court’s conclusion that “a nuisance

exists . . . under Minn. Stat. § 617.81, subd. 2(a)(2)(iii).” The public-nuisance statute

establishes criteria for 10 distinct scenarios, each of which constitutes a public nuisance.

See Minn. Stat. § 617.81, subd. 2(a) (2012). In relevant part, a public nuisance exists if at

least one “unlawful sale, possession, storage, delivery, giving, manufacture, cultivation,

or use of controlled substances [is] committed within the building” within the previous 12

months. Id., subd. 2(a)(v). A public nuisance also exists when, on at least two separate

occasions within the previous 12 months, the following provision is violated:

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 Whoever by an act or failure to perform a legal duty
intentionally does any of the following is guilty of
maintaining a public nuisance, which is a misdemeanor:
(1) maintains or permits a condition which
unreasonably annoys, injures or endangers the safety, health,
morals, comfort, or repose of any considerable number of
members of the public; or . . .
(3) is guilty of any other act or omission declared by
law to be a public nuisance and for which no sentence is
specifically provided.

Minn. Stat. § 609.74 (1),(3) (2012); see also Minn. Stat. § 617.81, subd. 2(a)(iii).

Here, the district court concluded that a public nuisance exists at LPOE under each

of these provisions. Because the city is entitled to a permanent injunction upon proof of

one public nuisance, see Minn. Stat. § 617.83 (upon proof of a public nuisance, the

district “court shall issue a permanent injunction”), and because the undisputed facts

establish a public nuisance under Minn. Stat. § 617.81, subd. 2(a)(v), we decline to

address appellants’ argument. Regardless of whether a public nuisance exists under the

challenged provision, the district court did not err by permanently enjoining the sale of

synthetic drugs at 120 East Superior Street, Duluth, Minnesota, under Minn. Stat.

§ 617.83.

II.

Appellants also challenge the district court’s permanent injunction, under common

law, against Carlson and L.P.O.E., Inc. Appellants argue that the city’s synthetic-drug

ordinance, as applied, is unconstitutional because application for a license would itself be

incriminating under the Fifth Amendment to the United States Constitution. “The

constitutionality of an ordinance is a question of law, which this court reviews de novo.”

8
State v. Botsford, 630 N.W.2d 11, 15 (Minn. App. 2001), review denied (Minn. Sept. 11,

2001). However, appellate courts “do not decide constitutional questions except when

necessary to do so in order to dispose of the case at bar.” State v. Hoyt, 304 N.W.2d 884,

888 (Minn. 1981). Although the district court included appellants’ “open violation” of

the city’s synthetic-drug ordinance among its reasons for granting the permanent

injunction, the district court specifically stated that it “would find a common law public

nuisance exists regardless of [appellants’] refusal or failure to comply with” the

ordinance. Appellants do not challenge this conclusion. Because the permanent

injunction under common law would remain regardless of appellants’ constitutional

claim, we do not decide this argument.4

Affirmed.

4
After Carlson was indicted and found guilty of more than 50 charges in federal court,
and his motions for a judgment of acquittal and for a new trial were denied, a special term
panel of this court dismissed appellants’ additional arguments as not justiciable. See U.S.
v. Carlson, No. 12-305, 2013 WL 6480744 (D. Minn. Dec. 10, 2013). Therefore, we
conclude our analysis here.

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