In the Matter of Days Inn West (7851 Normandale Boulevard) Nuisance Service Call Fee issued April 4, 2016 for Violation of State Pool Code, MN Rules 4717.1550, subp. 1.B.(1), adopted by reference in City Code Section 14.443 and Nuisance Service Call Fee issued March 17, 2016 for Violation of City Code Section 21.301.06 Parking and Loading

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1471

In the Matter of Days Inn West (7851 Normandale Boulevard)
Nuisance Service Call Fee issued April 4, 2016 for
Violation of State Pool Code, MN Rules 4717.1550, subp. 1.B.(1),
adopted by reference in City Code Section 14.443 and
Nuisance Service Call Fee issued March 17, 2016
for Violation of City Code Section 21.301.06 Parking and Loading

Filed April 17, 2017
Affirmed
Connolly, Judge

Office of Administrative Hearings
OAH File No. 5-6034-33467

Andrew C. McKenney, Donohue McKenney Ltd., Maple Grove, Minnesota (for relator)

Mary D. Tietjen, James J. Thomson , Jr. , Kennedy & Graven, Chartered, Minneapolis,
Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Randall,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
In this certiorari appeal, relator challenges the decision by an administrative -law
judge (ALJ) to affirm two citations issued by respondent -city. Relator asserts that the
citations are not supported by substantial evidence because (1) there were no nuisance calls
to support the imposition of nuisance service call (NSC) fees; and (2) the underlying
incidents did not rise to the level of nuisance.
FACTS
Relator Maplewood Lodging LLC, owns the Bloomington Days Inn hotel on which
two disputed NSC fees were imposed in 2016 . Prior to 2016, on March 17, 2015,
respondent City of Bloomington issued an abatement notice to relator after identifying the
property as a high -crime property pursu ant to Minn. Stat. §§ 6 09.74-.745 (2016). On
April 8, 2015, an NSC fee was issued because the property was again “identified as being
a high crime property.” On May 1, 2015 , relator was found to be in violation of Minn.
Stat. § 299F.362, subd. 4, because 23 guest sleeping room s were found to be without
functioning smoke detectors.
The first incident resulting in a disputed NSC fee occurred on March 7, 2016. A
city worker made a complaint alleging that vehicles were parked on unapproved areas of
the property and that the property owner needed to repair the areas damaged by the parking
violations. On March 14, 2016, an environmental health specialist working for the city
conducted an inspection of the property based on the complaint. During the inspection he
found three vehicles parked on grass or landscaped areas on the property. On March 15,
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2016 respondent issued a notice of a violation of Bloomington City Code § 21.3 01.06
(2016) regarding parking and loading. On March 17, 2016, relator was assessed an NSC
fee pursuant to Bloomington, Minn., City Code § 12.15(e) (2016), based on the violation
of the city code and at least two prior violations in 2015: failing to have smoke detectors
in 23 guest rooms and being a high crime property. The staff quickly corrected the parking
violation.
The second incident resulting in a disputed NSC fee occurred on March 28, 2016 ,
and involved a violation of the state pool code, Minn. R. 4717.1550, subp. 1.B.(1) (2016)
(providing that access to a public pool must be controlled by a self -latching door). When
investigating a near-drowning that occurred on March 25, 2016, a city employee observed
that the key card latch/lock was not latching because of a screw placed in the latch. Relator
repaired the pool door by March 29, 2016. On April 4, 2016, respondent assessed relator
another NSC fee.
On June 29, 2016, a hearing was held before an ALJ. Four city workers testified on
behalf of respondent and the property manager , and the owner of the hotel testified on
behalf of relator. The ALJ concluded that both disputed NSC fees were appropriate.
D E C I S I O N
“Generally, decision s of administrative agencies, including cities, enjoy a
presumption of correctness and will be reversed only when they reflect an error of law or
where the findings are arbitrary, capricious, or unsupported by substantial evidence.” CUP
Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 562 (Minn. App. 2001), review denied
(Minn. Nov. 13, 2001). Substantial evidence is: “(1) such relevant evidence as a reasonable
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mind might accept as adequate to support a conclusion; (2) more than a scintilla of
evidence; (3) more than some evidence; (4) more than any evidence; and (5) evidence
considered in its entirety.” Id. at 563.
Bloomington City Code § 12.01 states:
The purpose of this chapter . . . is to prohibit certain
conduct that is harmful to the health, safety and welfare of the
community and to prevent and abate nuisance conduct, events,
characteristics or conditions and their deleterious effects on
city neighborhoods by maximizing the means and methods by
which public officers can efficiently and effectiv ely enforce
the law and by imposing and collecting [NSC] fees from the
owner . . . of private property to which public officers are
repeatedly called to respond to nuisance violations as set forth
in Article I and II of this chapter of city code. The City Council
finds that . . . public nuisance activities are injurious to the
public health, safety and welfare and interfere with the quiet
enjoyment of life and property and that [NSCs] unduly divert
law enforcement resources from general crime prevention an d
law enforcement. The [NSC] fee is intended as a cost recovery
mechanism for excessive law enforcement services, over and
above the cost of normal law enforcement services to the
public, attributable to unabated nuisance conduct, conditions
or characteristics occurring, maintained or permitted to exist
on the private property. It is not intended to constitute
punishment separate from, or in addition to, any criminal
prosecution for the conduct underlying the nuisance or [NSCs].
Bloomington, Minn., City Code § 12.01 (2016). An NSC is a
[p]ublic officer response to a verified incident of any activity,
conduct or condition occurring on private property that is likely
to unreasonably interfere with the . . . safety, health, morals,
welfare, comfort or repos e of the residents therein or misuse
city resources, including without limitation . . . [p]ublic
nuisance, as listed in an d defined by § 12.03 of this city code
or [Minn. Stat. §§ 609.74-609.745].
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Id. at § 12.01.01. A “verified incident” is “[a]n incident where there is a law enforcement
response and a public officer, having completed a timely investigation , is able to find
evidence of nuisance conduct, conditions or characteristics as set forth in the definition for
[NSC] in . . . the city code.” Id. A “public officer” is defined as “ [A] police officer, fire
marshal or inspector, animal control officer, building inspector, or environmental health
inspector . . . each of whom, for purposes of this Article . . . shall be considered law
enforcement officers.” Id. (emphasis added). “Whoever by an act or failure to perform a
legal duty intentionally . . . maintains or permits a condition which unreasonably endangers
the safety, health, morals, comfort, or repose of any considerable number of members of
the public” is guilty of maintaining a public nuisance. Minn. Stat. § 609.74.
Where an abatement notice or a n NSC fee was properly served, each successive
NSC within the same 365-day period “shall result in an administrative citation to that party
in the manner set forth in . . . this city code in the amount of $250 or more based upon the
actual cost of the law e nforcement response, up to $2,000 for each separate call.”
Bloomington, Minn. City Code at § 12.15(e).1
The Parking Incident
On March 7, 2016 , a city employee filed a complaint regarding parking on
unapproved areas. Although relator argues that the city employee was making a regular
inspection, the employee did not testify , and the record is unclear as to why he was at
relator’s property. Nothing indicates the city employee’s role or whether he had the

1 Relator does not dispute that the disputed violations were successive violations occurring
within a 365-day period.
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authority to reprimand relator for the parking violation. We conclude that it is unreasonable
to expect a city employee to do nothing when he observes what he knows to be a violation
of a city code. Filing a report with the city is appropriate.
On March 14, 2016, an environmental health specialist with the city, who is treated
as a peace officer for purposes of City Code § 12.01.01, followed up on the complaint and
conducted an inspection of the property . He found that vehicles were unlawfully parked
on the grass and landscaped areas.
At the hearing, the environmental health specialist testified he had safety concerns
with the cars parked on the landscaped area because (1) a f ire truck might not be able to
get into the narrow area left by the parked cars and (2) an electrical service panel and an
electrical transformer box were in the vicinity and, if hit, they could cause “fire, explosion,
damage, [and] injury.”
Relator argues that the underlying incident does not fall under the definition of a n
NSC because respondent was not responding to nuisance complaints but rather discovered
the violations on its own inspections and then created fake “Citizen Complaints” to assess
NSC fees. We find no mention of “Citizen Complaints” in chapter 12 of the Bloomington
City Code. There is no requirement that a “verified incident” under the Bloomington City
Code come from a citizen.
In this case, the verified complaint came from a city employee, and the complaint
was followed by an inspection by an environmental health specialist, a peace officer under
City Code § 12.01.01, who testified credibly that parking in the area was a safety issue. As
a result, this incident qualifies as an NSC because it was a “[p]ublic officer response to a
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verified incident of any . . . condi tion occurring on private property that is likely to
unreasonably interfere with the . . . safety . . . of the residents therein.” Bloomington,
Minn., City Code § 12.01.01.2 We conclude that the ALJ did not err in determining that a
fee was appropriate.
Relator also argues that the ALJ’s findings and conclusions were unreasonable and
unsupported by substantial evidence because the underlying incidents did not consti tute a
nuisance, specifically that (1) there is no evidence that indicates how long the vehicles had
been parked improperly, (2) relator removed the vehicles as soon as the complaint was
brought to its attention, and (3) the vehicles were guest’s vehicles and not relator’s vehicles.
However, as the ALJ recognized, the city code requires only that a vehicle be parked
in a prohibited area at the time of the alleged violation. The code does not require
knowledge of who parked the vehicles or how quickly they were removed once relator
became aware of the infraction. The complaint alleging parking violations was filed on
March 7. When the environmental -health specialist arrived at the property on March 14,
three cars were parked illegally. Although relator does not have control over every guest,
it has a responsibility to ensure safety on the property. This includes observing the property
and rectifying any potential safety hazards or code violations.
Relator also argues that the alleged parking violation does not fall under the list of
specific nuisances that are listed as NSCs in the city code. The fact that the violation is not
specifically listed in the list of 39 descriptions does not matter because the list of violations

2 Relator does not conten d that the parking condition did not unreasonably interfere with
safety concerns.
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is prefaced by, “including without limitation” indicating that the list of descriptions is not
exhaustive. Id. (emphasis added).
We conclude that a reasonable person, considering the evidence in its entirety, could
conclude that the ALJ’s enforcement of the NSC fee for the parking violation was
supported by substantial evidence.
The Pool Incident
On March 25, 2016, there was a near drowning at the pool on relator’s property. In
response, a Bloomington fire marshal inspected the pool and closed it because the main
door was unable to latch so access to the pool was not controlled . The fire marshal filled
out a “Citizen Complaint Record” identifying herself as city staff. That same day, a
different city environmental-health specialist inspected the pool and noticed that access to
the pool still was not controlled because a screw had been insert ed into the latchi ng
mechanism so the door could be opened although t he key card access was not working .
The environmental-health specialist testified that this was a sa fety hazard for children or
nonguests of the hotel who could obtain access to the pool without supervisi on. The
violation was a concern primarily because children entering the pool without supervision
could potentially drown. On April 4, 2016, respondent issued an other NSC fee as a result
of this violation.
As we have already concluded, t here is no requir ement that a “verified incident”
come from a citizen. As with the parking violation, the verified complain t came from a
city employee, the f ire marshal, and the complaint was fol lowed up on by an
environmental-health specialist, a peace officer under City Code § 12.01.01, who testified
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credibly that the nonlatching door is a safety concern for children who could enter the pool
and potentially drown if access to the pool was not controlled. As a result, this incident
falls under the definition of an NSC. See Bloomington, Minn., City Code § 12.01.01.3
Relator also argues that the ALJ’s findings and conclusions regarding the pool
incident were unreasonable and unsupported by substantial evidence and that its conduct
did not constitute a nuisance because relator (1) maintained a latched pool door;
(2) performed daily inspection; and (3) immediately repaired a screw to the door as soon
as it became aware of the issue.
Again, as the ALJ concluded, the city code requires only a violation at the time of
the inspection. How the condition came about is irrelevant, as is how quickly the violation
was removed once respondent became aware of it.
We conclude that a reasonable person, considering the evidence in its entirety, could
conclude that the ALJ’s enforcement of the NSC fee for the pool violation was supported
by substantial evidence.
Because the ALJ did not err in concluding that respondent properly assessed NSC
fees for the parking and pool violation s, and because substantial evidence exists in the
record that the underlying incidents constituted a nuisance, we affirm the ALJ’s decision.
Affirmed.

3 Relator does not contend that the nonlatching door did not unreasonably interfere with
safety concerns.