In re Approving Adverse Action Against the Cigarette/Tobacco Licenses Held by Narjis, LLC, d/b/a East Side Grocery, at 1340 Payne Avenue.

This opinion is nonprecedential except as provided by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
A22-0855

In re Approving Adverse Action Against the Cigarette/Tobacco Licenses
Held by Narjis, LLC,
d/b/a East Side Grocery, at 1340 Payne Avenue.

Filed March 27, 2023
Affirmed
Larson, Judge

City of St. Paul
File No. RES PH 22-87

Wayne B. Holstad, Craig J. Beuning, White Bear Lake, Minnesota (for relator Jaber
Albadry)

Lyndsey M. Olson, St. Paul City Attorney, Theresa A. Skarda, Assistant City Attorney,
St. Paul, Minnesota (for respondent City of St. Paul)

Considered and decided by Reilly, Presiding Judge; Reyes, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
LARSON, Judge
In this certiorari appeal, relator Jaber Albadry challenges respondent City of
St. Paul’s decision to revoke a tobacco-shop license held by his business, Narjis, LLC,
d/b/a East Side Grocery (ESG). Because the city did not deny ESG procedural due process,
the penalty ordinance is not unconstitutionally vague, and ESG admitted to the conduct
underlying the license revocation, we affirm.
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FACTS
Since 2014, relator has owned and operated ESG, a grocery store located in St. Paul,
Minnesota, that provides groceries and supplies to local residents. ESG received a
“tobacco shop license” from the city, permitting ESG to sell certain tobacco products. See
St. Paul, Minn., Legislative Code (SPCO) § 324.03(16) (2022). 1 But the license did not
allow ESG to sell flavored-tobacco products. See SPCO § 324.07(j) (2022). 2 The
presumptive penalty when a business impermissibly sells flavored -tobacco products is:
(1) a short license suspension for a first violation and (2) license revocation if a second
violation occurs within 24 months after the first violation. SPCO § 324.10(b)(2) (2022).
On March 3, 2021, the city inspected ESG and found ESG was impermissibly
selling flavored-tobacco products. ESG admitted the violation when it paid a $500 fine.3
Ten months later, the city again inspected ESG and found ESG was impermissibly selling
flavored-tobacco products. On February 24, 2022, the city sent a license-revocation notice
that explained the city’s presumptive penalties and cited the relevant ordinances. The

1 The record provides that ESG sold tobacco under a “cigarette/tobacco shop license,” but
the city’s legislative code uses the term “tobacco shop license.” See SPCO § 324.03(16).
We use the legislative code’s terminology throughout this opinion.
2 Relator argues for the first time on appeal that ESG held a “tobacco products shop license”
that allowed ESG to sell flavored-tobacco products. See SPCO §§ 324.03(17) (defining
“tobacco products sho p license”); 324.07(l)(3) (providing an exception to the flavored-
tobacco restriction for retail stores with a “tobacco products shop license”) (2022). This
argument is forfeited because we do not address arguments raised for the first time on
appeal. In re A.D., 883 N.W.2d 251, 261 (Minn. 2016) (“Generally, we will not consider
an issue not addressed below.”). Further, relator’s argument is inconsistent with the record
which shows ESG sold tobacco under a tobacco shop license and ESG admitted its license
did not allow it to sell flavored-tobacco products. See SPCO § 324.03(16).
3 The city imposed a fine, rather than a short license suspension, for ESG’s first license
violation for selling flavored-tobacco products pursuant to SPCO § 310.05(m)(2) (2022).
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notice offered ESG three options: (1) do nothing and the matter would proceed uncontested
to the city council; (2) admit the alleged facts but contest the revocation penalty in a public
hearing before the city council; or (3) request a hearing before an administrative-law judge
(ALJ), which would allow ESG to present evidence and witnesses, and cross-examine the
city’s witnesses.
ESG responded in a letter dated March 30, 2022, choosing the second option. ESG
admitted the alleged facts but requested to appear before the city council to contest the
revocation penalty. The letter also proposed an alternative penalty. The city council held
a public revocation hearing on April 13, 2022. ESG’s counsel spoke first, repeating that
ESG admitted to the violation and requesting a less-severe alternative to revocation. A city
attorney then spoke, describing the two violations and recommending the city council
impose the presumptive penalty. The city council voted unanimously for revocation.
This appeal follows.
DECISION
Relator challenges the city’s decision to revoke ESG’s tobacco-shop license. “City
council action is quasi-judicial and subject to certiorari review if it is the product or result
of discretionary investigation, consideration, and evaluation of evidentiary facts.” Staeheli
v. City of St. Paul, 732 N.W.2d 298, 303 (Minn. App. 2007) (quotation omitted). “When
the municipal proceedings were fair and the record clear and complete, review is on the
record.” Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d 162, 180 (Minn.
2006). We limit our certiorari review to “questions affecting the jurisdiction of the board,
the regularity of its proceedings, and, as to merits of the controversy, whether the order or
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determination in a particular case was arbitrary, oppressive, unreasonable, fraudulen t,
under an erroneous theory of law, or without any evidence to support it.” Staeheli, 732
N.W.2d at 303 (quotation omitted).
An appellate court’s “authority to interfere in the management of municipal affairs
is, and should be, limited and sparingly invoked.” White Bear Docking & Storage, Inc. v.
City of White Bear Lake, 324 N.W.2d 174, 175 (Minn. 1982). “As a reviewing court, we
will not retry facts or make credibility determinations, and we will uphold the decision if
the lower tribunal furnished any legal and substantial basis for the action taken.” Staeheli,
732 N.W.2d at 303 (quotation omitted).
Relator argues the city improperly revoked ESG’s license because (1) the city
denied ESG procedural due process and (2) the penalty ordinance is unconstitutionally void
for vagueness. We address each argument in turn below.
I.
Relator first argues that ESG was denied procedural due process. We review this
issue de novo. Sawh v. City of Lino Lakes, 823 N.W.2d 627, 632 (Minn. 2012).
“The foundational principle of the right to due process is an opportunity to be heard
upon such notice and proceedings as are adequate to safeguard the right for which the
constitutional protection is invoked.” Gams v. Houghton, 884 N.W.2d 611, 618 (Minn.
2016) (quotation omitted). Once it has been determined that a constitutionally protected
property interest exists, “the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972); see also Sweet v. Comm’r of Hum. Servs., 702 N.W.2d 314, 320-
22 (Minn. App. 2005) , rev. denied (Minn. Nov. 15, 2005) . In the context of license
5
revocation, “[s]ufficient due process generally requires reasonable notice and a
hearing.” Id. at 563.
Relator argues ESG was denied due process because the city council decided to
revoke ESG’s tobacco-shop license without a prior ALJ hearing. We disagree. A
government entity satisfies due process when it “provide[s] an individual with notice and
an ‘opportunity to be heard at a meaningful time and in a meaningful manner.’” E.g., Sawh,
823 N.W.2d at 632 (emphasis added) (quoting Mathews v. Eldridge, 424 U.S. 319, 333
(1976)). Relator fails to cite any binding authority, and we are aware of none, that
concludes a government entity violates procedural due process when an individual chooses
to forgo the opportunity to be heard. 4 The relevant inquiry, therefore, is whether the
proceeding the city offered ESG satisfied due process.
Here, the record shows the city offered ESG a hearing before an ALJ, which would
have allowed ESG to present evidence and witnesses and cross-examine the city’s
witnesses. We have concluded on several occasions that an ALJ hearing constitutes a
meaningful opportunity to be heard. E.g., CUP Foods, Inc., 633 N.W.2d at 563. Because

4 Federal courts have consistently concluded that procedural due process is satisfied by the
availability of a proceeding. E.g., Padda v. Becerra, 37 F.4th 1376, 1383 (8th Cir. 2022)
(noting a party “cannot complain about lacking due process when the privation (forgoing
escalation and judicial review) was [their] own choice” (citing Sahara Health Care, Inc. v.
Azar, 975 F.3d 523, 533 (5th Cir. 2020))); Roslindale Co-op. Bank v. Greenwald, 638 F.2d
258, 261 (1st Cir. 1981) (“The availability of the statutory proceeding satisfies the
requirements of due process. We cannot be sympathetic to a party who elects to forego the
hearing provided him, and then complains he received none.”); FDIC v. Am. Bank Trust
Shares, Inc., 629 F.2d 951, 954 (4th Cir. 1980) (concluding due process was satisfied when
judicial review and hearings were available upon application).
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the city offered ESG the opportunity for an ALJ hearing, and ESG freely chose to forego
that option, we conclude the city did not violate ESG’s procedural-due-process rights.
II.
Relator also argues we should overturn the city’s decision to revoke ESG’s tobacco-
shop license because the penalty ordinance is unconstitutionally void for vagueness. We
review this issue de novo. Hard Times Cafe, Inc. v. City of Minneapolis, 625 N.W.2d 165,
171-72 (Minn. App. 2001) (quotation omitted).
Both the federal and Minnesota constitutions prohibit vague ordinances under their
due-process clauses. Id. (quotation omitted); U.S. Const. ame nd. XIV, § 1; Minn. Const.
art. I, § 7. A municipal ordinance is presumed constitutional, and the burden to prove
otherwise rests with the party attacking its validity. Hard Times Cafe, Inc., 625 N.W.2d at
171-72. Courts exercise “extreme caution” before declaring that an ordinance is void for
vagueness. Id. An ordinance is void for vagueness if it “defines an act in a manner that
encourages arbitrary and discriminatory enforcement,” or is so indefinite that people “must
guess at its meaning.” Humenansky v. Minn. Bd. of Md. Exam’rs, 525 N.W.2d 559, 564
(Minn. App. 1994) (citations omitted), rev. denied (Minn. Feb. 14, 1995). The use of
general language in an ordinance does not make it vague. Hard Times Cafe, Inc., 625
N.W.2d at 1 71-72. An entity cha llenging the constitutionality of an ordinance on
vagueness grounds must show the ordinance lacks specificity as to its own behavior rather
than some hypothetical situation. Ruzic v. Comm’r of Pub. Safety, 455 N.W.2d 89, 92
(Minn. App. 1990) (citation omitted), rev. denied (Minn. June 26, 1990).
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Relator argues that a reasonable licensee would conclude the applicable penalty for
a second license violation for selling flavored-tobacco products was a fine rather than
revocation and that the revocation ordinance is unclear because ESG’s first violation pre-
dated the ordinance amendment that created revocation as the presumptive penalty for a
second violation within a 24-month period. We are not persuaded.
In its ordinance, the city has set forth the presumptive penalties for violations of its
tobacco licenses. SPCO § 324.10 (2022). The city enacted this ordinance “to establish a
standard by which the city council determines the amount of fines, length of license
suspensions and the propriety of revocations f or licensees.” SPCO § 324.10(a). The city
presumes that these penalties are “appropriate for every case,” but the city council “may
deviate therefrom in an individual case where the council finds and determines that there
exist substantial and compelling reasons which make it appropriate to do so.” Id.
With regard to impermissibly selling flavored-tobacco products, the city ordinance
provides a chart that explains the presumptive penalty is: (1) a “10-day [license]
suspension” for a first violation and (2) “[r]evocation” for “[a] second violation within
twenty four (24) months.” SPCO § 324.10(b), (d). We conclude that the city’s penalty
ordinance makes clear that a second violation for impermissibly selling flavored-tobacco
products within 24 months after the first violation results in revocation. SPCO
§ 324.10(b), (d).
Further, relator has failed to show the ordinance lacked specificity as to ESG’s
behavior. Ruzic, 455 N.W.2d at 92 (citation omitted). ESG admitted to its March 3, 2021
violation for impermissibly selling flavored-tobacco products when it paid the imposed
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fine. Between the two violations, the city updated the ordinance to include license
revocation as the presumptive penalty for a second violation that occurs within 24 months
after the first violatio n. SPCO § 324.10(b) (amended Jan. 28, 2022). The record shows
the city notified ESG of the proposed changes and invited the public to attend hearings on
the proposed changes . After the updated ordinance went into effect, ESG received the
notice of its second violation, which specifically informed ESG that the city intended to
pursue license revocation. And throughout the proceedings before the city council, ESG,
through counsel, acknowledged that revocation was the presumptive penalty.
We discern neither that the penalty ordinance invites arbitrary or discriminatory
enforcement, nor that it requires an ordinary person to guess at the penalty for a second
violation within 24 months. Therefore, we conclude the penalty ordinance is not void for
vagueness.
Affirmed.