Myth Live II, Inc., Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0346

Myth Live II, Inc.,
Appellant,

vs.

City of Maplewood,
Respondent.

Filed December 6, 2021
Affirmed
Jesson, Judge

Ramsey County District Court
File No. 62-CV-19-6750

William R. Skolnick, Andrew H. Bardwell, Skolnick & Joyce, P.A., Minneapolis,
Minnesota (for appellant)

Paul D. Reuvers, Aaron M. Bostrom, Iverson Reuvers, Bloomington, Minnesota (for
respondent)

Considered and decided by Bratvold, Presiding Judge; Larkin, Judge; and
Jesson, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Following a shooting close to a Maplewood concert venue, respondent City of
Maplewood’s city council—concerned about criminal activity by patrons—demanded
changes by the venue’s owner, appellant The Myth Live II (the Myth). The council
proposed an action plan that imposed conditions on the Myth’s liquor license designed to
2
increase public safety. This included a pr ovision that if there was substantial
noncompliance with the action plan, the police chief could temporarily close the venue.
After several meetings and passage of the acti on plan by the city council, the Myth sued
the city, alleging that it did not consent to the action plan. Both parties moved for summary
judgment. The district court granted the city’s motion, finding that the Myth agreed to the
action plan. The Myth appealed. Because th ere was an agreement to the terms of the
conditions on the liquor license, we affirm.
FACTS
The Myth operates a concert and event center of the same name located in the city
of Maplewood.1 The venue’s capacity is roughly 3,000 people and it operates 50 to 90
days a year, hosting acts that span many musi cal genres. Part of its business includes
selling alcohol.
The Myth is required to have a liquor license from the Maplewood City Council
(council) to provide liquor. The council approves liquor licenses to Maplewood businesses
yearly. Following a shootin g near the Myth’s venue af ter a concert in March 2019, 2 the
council conducted a public safety review at the next council meeting. The Maplewood
Police Chief (chief), in addressing the city’s broad statutory authority when authorizing
liquor licenses, proposed that an operational action plan (action plan) be implemented that
would include conditions for the Myth’s liquor license. See, e.g., Minn. Stat. § 340A.415

1 The facts underlying this case are largely undisputed.
2 The Myth disputes that the sh ooting was related to the venue, but this contested fact is
only background to the council’s actions—not related to the merits of this appeal.
3
(2020) (detailing the authority for a municipality to revoke or suspend a liquor license if a
licensee violates an “applicable statute, rule, or ordinance”); see also Maplewood, Minn.,
City Code, § 6-130 (2019) (adopting the same language into ordinance). The parties
understood that if there was an agreement between them on the conditions, limitations on
the liquor license were proper.
Shortly thereafter, the chief and repres entatives from the My th—including its
security consultant, Richard Stanek—met to discuss the chief’s concerns. The chief also
provided a sample action plan used for a Maplewood nightclub as a starting point for
discussion. The sample action plan include d 21 conditions on th e liquor license. A
potential-closure provision in the recommendation section of the action plan that stated that
“[u]pon evidence of substantial non-complia nce with the requireme nts outlined in the
above action plan, the chief of police is authorized to order the closure of the business until
the next available council meeting at which time next steps and/or sanctions will be
considered.” The Myth and the city agreed to meet the following month, in part to give
Stanek time to conclude his investigation and prepare a report. In May, the chief added 13
conditions to the sample action plan and proposed June 5 as the final meeting day.
On May 31, the Myth sent a letter to the city objectin g to certain conditions and
raising issues of how the ve nue and the criminal activity surrounding it were being
characterized. According to the Myth, the proposed action plan was more appropriate for
a nightclub rather than a music venue; the chief defamed the Myth by stating that incidents
of rape had occurred at their venue; a mandatory dress code would be unenforceable; and
the council members were not being fair because they “already made up their minds” about
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the Myth. The Myth al so included Stanek’s report, in which he walked through each of
the 34 proposed conditions to discuss the ease, difficulty, or appropriateness of compliance.
But neither the letter nor Stanek’s report e xplicitly objected to the potential-closure
language. The Myth then threatened that it “will not consent to the imposition of onerous
restrictions upon its liquor license.”
At the June 5 meeting, which was transcribed, representatives for the Myth and the
city exhaustively discussed a ll 34 items in the proposed ac tion plan point-by-point using
Stanek’s report as a baseline for their potential agreements. By the end of the meeting the
list was reduced to 25 conditio ns. The Myth’s representa tives agreed with all the
conditions except for two regarding the use of metal detectors and a restrictive approach to
alcohol service (specifically how to pour al cohol such that the standard amount is
consistently served). The pot ential-closure language was in cluded in the action plan
refined at the end of the June 5 meeting, but was not objecte d to or discussed at that
meeting, including when the chief asked if there was anything else the Myth would like to
discuss.
At the council meeting the following week, the council reviewed the action plan as
refined at the June 5 meeting. The Myth’s management and lawyers spoke before the
council but raised no objections. This included moments when council members asked if
any of the representatives had anything else to add. The Myth’s lawyer emphasized that
the venue was a safe establishment and otherwise was working on improvements. Another
representative for the Myth explained that it agreed to the disputed alcohol service
condition. And the council removed the disputed metal detector condition. In the 56 pages
5
of transcript for the portion of the council meeting involving the liquor license, the Myth’s
representatives spoke for nearly 20 of them. But the Myth’s representatives did not object
to the potential-closure language. Then after the mayor called for the motion and vote on
the action plan, a lawyer for the Myth tried to speak but was cut off by the mayor. The
council adopted the action plan.
Three months later, the Myth filed a lawsuit against the city claiming that the action
plan amounts to the imposition of unlawful adverse conditions on its liquor license. The
three counts were (1) declaratory relief and damages against the city for acting arbitrarily,
capriciously, or otherwise in violation of the law for adopting the action plan, (2) injunctive
relief against the enforcement of the action plan, and (3) a 42 U.S.C. section 1983 claim
for the violation of the Myth ’s due-process rights. The My th did not challenge the 2020
liquor license, which was issued after the lawsuit was filed. The city moved for summary
judgment and the Myth moved for partial summa ry judgment. The district court granted
summary judgment in favor of the city.
The Myth appeals.
DECISION
The Myth and the city do not dispute that the city may impose conditions on a liquor
license so long as there is an agreement to the conditions. But th e Myth alleges that the
district court erred by granting summary judg ment in favor of the city, arguing it never
agreed to the potential-closure language in th e action plan. This disputed fact, the Myth
asserts, precludes summary judgment.
6
On an appeal from summary judgment, we review de novo a district court’s
application of the law and its determination th at there are no genuine issues of material
fact. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 77 (Minn. 2002). We
examine the evidence “in the light most favorable to the party against whom judgment was
granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). But there is no genuine
issue of material fact when the nonmoving party presents evidence “which merely creates
a metaphysical doubt as to a factual issue.” DLH, Inc. v. Russ , 566 N.W.2d 60, 71
(Minn. 1997).
Here, the record reflects that representa tives for the Myth, in cluding management
and lawyers, actively participated in crafting the action plan. The My th agreed in April
that they would discuss the terms of the action plan before the June 10 council meeting and
sent representatives to discuss each term point-by-point on Ju ne 5, days after its May 31
objection letter.3 Despite a disagreement on two speci fic points at the June 5 meeting, a
representative for the My th explained at the council meeti ng that it agreed to one of the
two points: the alcohol servic e condition. And the council removed the metal detector
condition. Before the council passed the action plan, each representative of the Myth was
given the opportunity to address any grievanc es or express disagr eement with the action

3 The Myth contends that Minnesota Rule of Evidence 408 bars the district court’s reliance
on the discussion on June 5. Although the district court, sua sponte, asked about this issue,
neither party raised it below, nor did the district court address it in the summary-judgment
order. Therefore, it is not properly before this court. See Thiele v. Stich, 425 N.W.2d 580,
583 (Minn. 1988) (stating that the reviewing c ourt may address only issues “presented to
and considered by” the district court).
7
plan in its final form.4 This included a significant amount of back and forth during the city
council meeting in which representatives of the Myth could have objected to the potential-
closure provision, which had be en included in every draft of the action plan. Given this
lengthy discussion, we cannot construe the mayor cutting off one of the Myth’s lawyers at
the end of the meeting as thwarting the Myth ’s opportunity to voice disagreement about
the potential-closure provision. To do so would only cast “metaphysical doubt” on the
parties’ agreement. DLH, Inc., 566 N.W.2d at 71. Accordingly, even when viewed in the
light most favorable to the Myth, there was an agreement to the terms of the conditions on
the liquor license, including the potential-closure provision.
To convince us otherwise, the Myth argu es that it could not have agreed to the
potential-closure provision because it was never explicitly discussed.5 Ordinarily, silence
is not enough to constitute ac ceptance in an agreement. Cargill Inc. v. Jorgenson , 719
N.W.2d 226, 233 (Minn. App. 2006). But s ilence can be deemed acceptance when one
party is “justified in expecting a reply.” Id. (citing Gryc v. Lewis, 410 N.W.2d 888, 892
(Minn. App. 1987)). Here, the parties understood that the council sought an agreement on
conditions to the Myth ’s liquor license. The council no t only provided the Myth the
opportunity to object to aspects of the action plan, but also directly asked for its input and

4 While the Myth’s May 31 objection letter— which predated the council meeting—did
exclaim that it would not stand by an “onerous” condition from the city, the letter did not
call out any specific condition other than a ma ndatory staff dress code—a condition that
was agreed to for the Myth security staff in the final action plan. Nor did the letter say that
the Myth was walking away from any future discussions, which indeed it did not.
5 The parties did not raise, so we need not determine, whether the potential-closure
provision was truly a “condition” of the action plan, as opposed to an enforcement aspect
of the action plan, which is allowed by statute. Minn. Stat. § 340A.415.
8
whether it had any additional concerns. In every chance to reply and object, the Myth was
silent to the potential-closure language and in stead raised other issues like the feasibility
of metal detectors. Therefore, given the re lationship between the pa rties and the context
of the agreement, the council was justified in expecting a re ply from the Myth to aspects
of the action plan it disagreed with.6
Additionally, the Myth argues that strict pr inciples of contract formation preclude
summary judgment. Th e Myth urges us to apply princi ples applicable to settlement
agreements, which are subject to a contract’s requirements. Ittel v. Pietig ,
705 N.W.2d 203, 207 (Minn. App. 2005) (citing Ryan v. Ryan , 193 N.W.2d 295, 297
(Minn. 1971) (“It is well settled that a compromise and settlement of a lawsuit is contractual
in nature.”)).
We first observe that there was no underlying lawsuit or other litigation here at the
time of the discussions over the action plan. Thus, we do not construe the agreement here
as a settlement agreement to which contract principles apply. But even if we were to apply
contract formation law to the agreement be tween the Myth and the city, the Myth’s
arguments are unavailing. First, the Myth claims that because they were “merely
attempting to address the issues that were of concern” to the city, they actually did not
agree to anything, and the “mirror imag e” rule of contracts should apply. See Gresser v.
Hotzler, 609 N.W.2d 379, 382 (Minn. App. 2000) (stating that under the mirror image rule,
“an acceptance must be coextensive with the offer and may not introduce additional terms

6 This is particularly true since the potentia l-closure provision was included in each draft
starting with the sample and through to the final version.
9
or conditions” (quotations omitted)). But as explained above, based on the Myth’s conduct,
they did agree to the terms of the action plan. See Cederstrand v. Lutheran Bhd. , 117
N.W.2d 213, 221 (Minn. 1962) (stating that whether parties, by words or conduct, formed
a contract should be judged objectively, not subjectively).
Nor are we persuaded by the Myth’s argumen t regarding the lack of consideration
when it asserts the agreement was “in no respect either detrimental to the city or beneficial
to the Myth.” Consideration do es not require both a detriment and a benefit. See
Cityscapes Dev., LLC v. Scheffler, 866 N.W.2d 66, 71 (Minn. App. 2015) (“Consideration
may consist of either a benefit accruing to a party or a detriment suffered by another party.”
(emphasis added) (quotation om itted)). And the Myth benef itted from the agreement, as
the city was also considering fines or removing the liquor license entirely without the action
plan.
In sum, because there was an agreement to the terms of the conditions on the liquor
license, including the potential-closure provision, there is no genuine dispute of material
fact whether there was an agreement made between the Myth and the city.7 Therefore, the

7 The Myth further argues that the district court erred as a matter of law by concluding that
there was not a due-process violation, and clai ms they are entitled to “an opportunity to
present, confront, or cross-examine any wi tnesses.” Due process requires reasonable
notice and a hearing. CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 563 (Minn.
App. 2001). No process is due if the govern ment’s action does not deprive an individual
of a protected interest. Rew v. Bergstrom, 845 N.W.2d 764, 785 (Minn. 2014). Here, the
due-process claim is about the hearing surrounding the conditions to the liquor license. But
there is no property right in an existing liquor license. Arens v. Vill. of Rogers, 61 N.W.2d
508, 519 (Minn. 1953). And even if there were, the Myth does not demonstrate why here
we should deviate from the gene ral rule in Minnesota that due process simply requires
notice and a hearing. See CUP Foods, Inc., 633 N.W.2d at 567. The Myth received both.
And given the ample opportunities throughout the council meeting for the Myth’s lawyer
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district court did not err as a matter of la w when granting summary judgment in favor of
the city.
Affirmed.

and members of management to speak, the cu tting-off of one lawyer at the end of the
meeting does not change that fact. The district court did not err by concluding as a matter
of law that there was no due-process violation.