Jody L. Wiza, d/b/a Shack Bar, LLC, Relator,

This opinion will be unpublished and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
A17-1601

Jody L. Wiza, d/b/a Shack Bar, LLC,
Relator,

vs.

City Council of the City of Dover, Minnesota, et al.,
Respondents

Filed July 9, 2018
Affirmed
Reyes, Judge

City of Dover
Resolution Nos. 9-18-17B; 9-18-17D

Frederick S. Suhler, Jr., Rochester, Minnesota (for relator)

Robb L. Olson, Peter J. Frank, White Bear Lake, Minnesota (for respondents)

Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and Randall,
Judge.
*
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this certiorari appeal, relator argues th at respondent city council failed to follow
lawful procedures by (1) failing to adhere to the Minnesota administ rative-agency rules;

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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(2) failing to rule on her motions; and (3) de nying her right to cross-examine witnesses.
Relator also argues that insufficient evidence supports the city council’s determination that
she violated the city ordinance and that th e city council erred by considering relator’s
building-code violations in imposing sanctions on her. We affirm.
FACTS
Relator Jody Wiza, who owns the Shack Bar, applied for a Sunday liquor license on
June 1, 2017. Respondent city council of the city of Dover (the city council) denied her
application because of allegations that relator violated city ordinances.
On September 6, 2017, the city council he ld an evidentiary hearing to address
relator’s alleged violations. Prior to the hearing, relator filed motions requesting:
(1) appointment of an independent hearing officer; (2) a stenographic record of the
proceedings; (3) recusal of one of the council members; 1 and (4) discovery. The city
council discussed the motions at the beginning of the hearing but neither granted nor denied
them.
The city council then addressed the first allegation that relator violated Dover,
Minn., City Ordinance (DCO) No. 93-4 (1993), which prohibits the display of nudity, nude
dancing, or certain sexual activ ities in a licensed liquor estab lishment. The city council
played a video from relator’s bar depicting a man dancing while wearing only underwear.
The city council then allowe d relator the opportunity to present her arguments and
evidence, but relator claimed that the city council bore the burden of proof and that she had

1 During the hearing, relator orally requested that the city council require recusal of a
second council member.

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no obligation to prove the falsity of the alle gations. When the city council allowed the
public to make comments, relator objected, claiming that the witnesses should be sworn in
under oath and available for cross-examination. The city council did not rule on relator’s
objection.
The city council next addressed relato r’s alleged violati ons of Dover, Minn.,
Municipal Regulation and Licensing (DMRL) § 402.04, subd. 3 (2008), for allowing
customers to consume alcoholic beverages in unlicensed areas of the premises, and of the
State Building Code, Minn. Stat. §§ 326B.101-16 (2016), for violating the building permit.
2
The city council followed the same procedure used for the first violation: the city council
presented its evidence, gave relator an opportunity to present evidence and arguments, and
allowed public comments. Relator did not attempt to ask questions or reply to those who
made comments.
On September 18, 2017, the city counc il adopted and approved three resolutions
determining that relator violated DCO No. 93 -4, DMRL § 402.04, subd. 3, and the State
Building Code, and suspended realtor’s liquor license for three days and imposed a $1,000
fine. Relator’s appeal by writ of certiorari follows.

2 The city-council resolution does not delineate which section of the State Building Code
that relator violated, nor does the record disclose this information.

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D E C I S I O N
I. Minnesota Administrative Rules do not apply to the city council’s hearing.

Relator argues that the city council faile d to follow the procedures for contested
cases under the administrative agency rule s. Minn. R. 1400.5010-8400 (2017). 3 We are
not persuaded.
Relator’s argument requires us to first determine whether chapter 1400 of the rules
applies to the city council’s evidentiary hearing. We review questions of interpretation and
application of administrative regulations de novo. Gist v. Atlas Staffing, Inc., 910 N.W.2d
24, 31 (Minn. 2018); City of Morris v. Sax Investments, Inc., 749 N.W.2d 1, 5 (Minn. 2008).
The procedures of Minn. R. 1400.5010- 8400 “govern all contested cases conducted
by the office under Minnesota Statutes, chapter 14 .” Minn. R. 1400.5010 (emphasis
added). “Office” refers to the Minnesota Offi ce of Administrative Hearings (the OAH).
Minn. R. 1400.5100, subp. 6. If a word is defined by statute, we construe it according to
that definition and do not turn to the common-law definition of the word. State v. Schmid,
859 N.W.2d 816, 82 0 (Minn. 2015); see Citizens Advocating Responsible Dev. v.
Kandiyohi Cty. Bd. of Comm’rs. , 713 N.W.2d 817, 828 n.9 (Minn. 2006) (stating that
administrative regulations are governed by ru les of construction that apply to statute).
Rules 1400.5010 and 1400.5100 unambiguously limit the scope of rules for contested cases

3 She claims that the city c ouncil (1) did not provide for di scovery pursuant to Minn. R.
1400.6700; (2) did not have w itnesses sworn in and testify un der oath pursuant to rule
1400.7200; (3) did not satisfy its burden of proving that rela tor violated city ordinances
pursuant to rule 1400.7300; and (4) conducted the hearing in a chaotic manner, violating
rule 1400.7800.

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to a hearing conducted by the OAH. Here, the city council, not the OAH, conducted the
evidentiary hearing.
Minn. Stat. § 340A.415 provides that MAPA, Minn. Stat. §§14.57-.69 (2016)
applies to a license-revocation hearing conducted by an authority issuing a liquor license.
But the city council is not required “to con duct the hearing before an employee of the
[OAH].” Minn. Stat. § 340A.415 (2016) (gov erning the rules and procedures that the
authority issuing a liquor license should follow in imposing civil penalty). Therefore, the
procedures for contested cas es under Minn. R. 1400.5010 -8400 do not apply to the
evidentiary hearing conducted by the city co uncil, and the city co uncil had no duty to
follow the procedure outlined by these rules.
II. Relator waived her claim that the city council’s failu re to rule on the motion
seeking recusal of the council members was an unlawful procedure.

Relator claims that the city council did not follow lawful procedure because it failed
to consider relator’s motion seeking recusal of the council members for conflict of interest.
However, this claim is forfeited as relator cites no argument or authority to support it. See
Scheffler v. City of Anoka , 890 N.W.2d 437, 451 (Minn. App. 2017) (“An assignment of
error on mere assertion, unsupported by argument or authority, is forfeited and need not be
considered unless prejudicial error is obvious on mere inspection.”)

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III. The city council did not deny relator’s request to conduct cross-examination.
Relator argues that the city council failed to observe lawful procedure by denying
her right to cross-examine witnesses.4 Relator misconstrues the record.
Under MAPA, the parties have the right to conduct cross-examination. Minn. Stat.
§ 14.60, subd. 3. Here, the city council di d not deny relator this right. Relator never
questioned the witnesses after they testified, although she had ample opportunity to do so.
When the city council provided relator the opportunity to present her arguments and
evidence, she did not discuss the witnesses’ testimony, nor did she ask the city council
whether she could question the witnesses. Although relator briefly mentioned her right to
cross-examine the witnesses two times during the hearing, it was only in the context of
asking the city council to swear in the witnesses. Therefor e, it was relator, not the city
council, who elected not to conduct cross-examination.
IV. Sufficient evidence supp orts the city council’s determination that relator
violated DCO No. 93-4.

Relator argues that the city council’s dete rmination that relato r willfully violated
DCO No. 93-4 is not supported by sufficient evidence. We disagree.
“Municipal authorities have broad discre tion to determine 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). However, after review of the entire

4 Although relator only cites to Minn. R. 1400.7100 to sup port her claim that the city
council should have allowed he r to conduct cross-examinati on, we review this argument
separately because Minn. Stat. § 14.60, subd. 3, also grants the parties the right to conduct
cross-examination.

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record, we may reverse or modify a munici pal authority’s decision if the petitioner’s
substantial rights are prejudiced because the administrative finding, inferences, conclusion,
or decisions are unsupported by substantial evidence. Minn. Stat. § 14.69 (e). “Substantial
evidence, for the purpose of a ppellate review of an administ rative agency’s decision, is:
(1) such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion; (2) more than a sc intilla of evidence; (3) more than some evidence; (4) more
than any evidence; and (5) evidence considered in its entirety.” CUP Foods, Inc. v. City
of Minneapolis, 633 N.W.2d 557, 563 (Minn. App. 2001). We defer to the municipal
authority’s fact-finding process, and it is th e challenger’s burden to establish that the
findings are not supported by the evidence. Id. Therefore, we accept inferences made by
the municipal authority if not manifestly unjust, even though contrary inferences would be
better supported by the record. Id.
DCO No. 93-4 prohibits “nude dancing” and “touching of nude human genitals” in
premises licensed to serve on-sale liquor. On e definition of “nude” provided in the city
ordinance is “the display of hum an male genitals in a discer nably turgid state, even if
completely and opaquely covered.” DCO No. 93-4, § 2.
The city council determined that relator violated the ordinance based in part on the
video evidence showing a man dancing in hi s underwear for a woman seated on a chair,
who reached her hand toward the man’s genita ls. Implicit in its determination are the
inferences that the man’s genitals were in a turgid state and that the woman touched his
genitals.

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Relator dances around the argument that the man was not “nude” and the woman
did not touch the man’s genitals. However, relator did not submit any evidence to support
her argument. Because we defer to the c ity council’s findings of fact, which were
supported by the video, we accept the inferences made by the city council.
V. Relator waived her argument that the city council e rred by considering
relator’s building-code violations.

Relator also argues that, because the Stat e Building Code is not related to the
protection of health, safety, or morals of the public, the city co uncil should not have
imposed sanctions on relator ba sed on this violation. Howe ver, relator did not make any
legal argument or cite to legal authority, and therefore this issue is forfeited. See Scheffler,
890 N.W.2d at 451.
Affirmed.