Nickeled and Dimed

Lawyer Larry Leventhal contemplates a café and its hard times
Craig Lassig

In the late afternoon of October 8, 1999, Minneapolis Police Officer Sara Metcalf took her first trip to the Hard Times Cafe on Minneapolis's West Bank. Metcalf was not in uniform. She was working incognito, trying to fit in by wearing a pair of baggy jeans, a flannel shirt, and a bandanna. The youthful officer also carried a backpack. Police reports would later say that Metcalf was conducting an undercover narcotics investigation. But on that first day at the café, near the intersection of Cedar and Riverside Avenue, she encountered nothing more serious than two kids loitering on the sidewalk.

Since opening in November 1992, the Hard Times--a member-run collective--has developed two distinctly different reputations. Housed in the ground floor of a two-story brick building near the University of Minnesota, the café's colorfully painted façade, adorned with freeform lettering (not to mention the macramé plant holders inside) recalls the West Bank's reputation in the 1960s as a bohemian enclave. Behind the counter hangs an award from the glossy city magazine Mpls.St.Paul: "Best Place to View Pierced Body Parts." For some, the 24-hour vegetarian coffeehouse is an oasis: a cool center for the countercultural to hang out; one of the few all-night venues in town that offers a place for underage patrons. Police and many city politicians, however, have come to view the Hard Times as a den of unsavory characters, interested in little more than idleness and petty crime.

On January 26, 2000, in the wake of officer Metcalf's undercover operation, the Minneapolis Police Department raided the café, and drug charges were filed against five men. On June 9 the Minneapolis City Council voted to revoke Hard Times' licenses to operate a restaurant, sell tobacco products, and provide live entertainment for a year. Attorneys for the café have appealed the decision and, for the moment, the café's future is in limbo. Until the Minnesota Court of Appeals makes a decision later this year, patrons will still be able to buy those cranberry-apple vegan scones that go so well with espresso.

The confrontation began brewing last spring after Ofcr. Kevin Bakken of the MPD's CCP/SAFE (Community Crime Prevention/Safety for Everyone) unit began hearing complaints from neighboring businesses about loitering and alleged drug dealing inside and outside of the café. He forwarded this information to higher-ups in the MPD, who decided to launch an undercover operation. Council member Joan Campbell, whose Second Ward includes the café, says she had been hearing similar complaints from businesses and residents alike for "several years," but that she only learned of officer Metcalf's stealth investigation shortly before its completion. Robert Dildine, Hard Times' longtime attorney, claims that neighborhood concerns were never brought to the attention of his client. "They would have taken care of it. The café has always cooperated with the police," he says.

During her three-month stint as a would-be dope smoker, Metcalf typically showed up at the café between 4:00 and 5:00 in the afternoon and stayed until 8:00 p.m. According to police reports, nothing much happened on the officer's first five visits. A drunk asked if she "liked to get high." Metcalf discussed an upcoming "Free Mumia" rally with other patrons. She observed "many people coming into the café looking around and then briefly meeting with others before leaving."

Finally, on November 10th, a former employee of the café asked Metcalf if she was interested in some "good weed." The next day the officer scored for the first time, when two other patrons sold her a baggy of marijuana for $20 (3.4 grams, or not quite an eighth of an ounce, according to the police report).

Over the next two months, Metcalf--along with other officers who were eventually assigned to the case--bought drugs a total of ten times. Typically, they purchased small amounts of marijuana, ranging from 1.6 grams to 4.7 grams at a time. In one instance, according to police reports, the cops scored some crack cocaine for $40, after haggling with a seller who had wanted $45. Another time they bought 3.9 grams of hallucinogenic mushrooms for $30. In early January Metcalf and Sgt. Jeffrey Miller watched people near a window in an apartment above the Hard Times pass a pipe back and forth.

On January 14, at about 10:30 p.m., Officer Metcalf approached Marty Johnson, who at the time was listed as the vice president of the Hard Times collective, and said she wanted to buy marijuana. According to the police report, Johnson led officers to an apartment above the Hard Times, which the café had originally rented as a business office, and sold them roughly six grams of marijuana for $40. The purchase from Johnson marked the first and only buy the police had made from anyone who worked at the café. It was also the last purchase they made.  

At 2:00 p.m. on January 26, police arrived with search warrants for the café, the apartment above, and Johnson's apartment in south Minneapolis. Two Hard Times customers were cited and released for having open bottles of booze. According to the investigation's summary, "a small amount of marijuana" was found in what the police believed to be an employee locker, "a small amount of marijuana" was discovered in the upstairs apartment, and a "one-hit pipe" and a "pocket scale" were unearthed in Johnson's apartment. The police report noted that it was unlikely the results of the search would lead to any charges. At the time, Lt. Scott Gerlicher of the MPD's downtown command told the Star Tribune "we weren't expecting to find much."

In the wake of the raid, according to Ross Corson, spokesman for the Hennepin County Attorney's Office, five people were charged with third-, fourth-, or fifth-degree controlled-substance charges. Three have pleaded guilty, an arrest warrant for another suspect is outstanding, and Johnson--who faces two fifth-degree controlled-substance charges--has a trial slated for July 24.

Hard Times attorney Dildine says that given all the effort the Minneapolis Police put into the operation, they didn't turn up very much. "The first month they found no evidence at all," he observes. "They came up with nothing in the end that would indicate that there's any problem. There's probably not a bar in town they couldn't go to and get more." He says the fact that police persisted after Metcalf's first few trips yielded nothing "indicates that they weren't investigating, they were targeting." City Pages' calls to Lieutenant Gerlicher, Sergeant Miller, and Officer Bakken about the sting were not returned.

Dildine says he still doesn't understand why complaints that a cop heard last spring didn't prompt an investigation until October. "I don't find it credible myself," he concludes. "I think [someone] decided a year ago or so that they wanted to close the café. Who wanted to and for what reason, I haven't been able to discover." City officials claim there's no plot afoot and insist that there was plenty of evidence to warrant pulling the café's licenses.



Immediately following the January 26 raid, a Minneapolis health inspector cited Hard Times for health violations including dirty utensils, poor ventilation, and improper refrigeration. The café was then closed for 27 days. Armed with the MPD's discoveries, the Minneapolis City Attorney's Office began building its case to have Hard Times' licenses yanked; their complaint was filed on February 23. Previously, a city council subpanel would have heard the issue; but under a new, ostensibly impartial process adopted by the city, both sides argued their case before Administrative Law Judge Steve Mihalchick this spring. He released his findings on April 28.

The position of the police, the City Attorney's Office, and council members such as Campbell is essentially that the Hard Times Cafe is a chronic, problem property--and the results of the MPD's undercover sting prove it. "The Hard Times Cafe authorized and approved of drug transactions on the premises," Assistant City Attorney Timothy Skarda wrote in a letter submitted to Mihalchick on April 11. "The evidence shows that even if the café did not officially authorize drug sales on the premises, the management and staff condoned drug related activity."

On June 9 a majority of the council agreed with the thrust of Skarda's allegations, voting 7-5 to revoke the café's licenses for a year. Mayor Sharon Sayles Belton signed off on the action and penned a letter encouraging Hard Times, which had opened its doors again on February 22, to get some advice on how to manage their business. Following the official publication of the council's vote, the café closed its doors for a second time on June 17.

But the matter is far from settled. On June 21 Robert Dildine and attorneys Larry Leventhal and Jordan Kushner, who are serving as co-counsel for the Hard Times Cafe, took the matter to the Minnesota Court of Appeals. In a nutshell, their argument is that the city council, in voting to revoke the café's license, ignored the guidance of City Attorney Jay Heffern; who advised the council to disregard any information not submitted to the administrative law judge. That the counsel considered other evidence, the Hard Times' attorneys contend in a memorandum filed with the appellate court, amounts to "arbitrary and discriminatory enforcement" against the café. Last Wednesday the café reopened again and will remain open pending the appeal. The court's decision on the matter is likely to take six or seven months.

In his 13-page finding, Administrative Law Judge Mihalchick noted that only a single employee at the Hard Times was found to be involved in drug sales, and agreed with the collective's contention that Johnson's title of "vice president" accorded him no more or less power than any of the other members (the number of members fluctuates; Dildine says currently there are eight to ten). Some drugs sales happened out of the view of the Hard Times' service counter, behind the nearby Viking Bar, and in the upstairs apartment. But, Mihalchick concluded, it was "not obvious" that there was anyone dealing drugs at the Hard Times, emphasizing the word "not" in boldface type.  

Mihalchick also found that many of the health violations were caused when the police ransacked the Hard Times in their search and employees were prevented from cleaning up the mess. He also concluded that managers at the café took immediate steps to address police concerns after the raid: "Every person identified from police reports as being involved in drug transactions was banned from the Hard Times Cafe. Johnson was terminated from employment with the Hard Times Cafe. Rental of the apartment above the Hard Times Cafe was discontinued."

Ultimately Judge Mihalchick found that there was "good cause" for the city to take "adverse action" against the Hard Times. In the end, though, he didn't think the city had made its case that the Hard Times was in the drug business: "The Hard Times Cafe was not directly involved in drug trafficking and...significant corrective action has already been taken by the Hard Times Cafe."

According to Dildine, a majority of city council members all but ignored Mihalchick's findings because they considered evidence against the Hard Times the administrative law judge never heard. The day before the council's final vote, during a meeting where members talked about issues that would be voted on the following day, a police department representative was asked about the number of 911 calls made concerning Hard Times. According to Dildine's filing with the court of appeals, Assistant City Attorney Tim Skarda originally planned to present Mihalchick with that information but changed his mind after the Hard Times attorney revealed his plans to point to other locations that generated more 911 calls.

Statistics from the Minneapolis Police Department show in 1999 that 911 registered 185 calls concerning the café. During that same period there were 503 calls to the intersection of First Avenue North and Fifth Street North (near many bars in the Warehouse District), and 451 calls to City Center in downtown Minneapolis.

Council member Paul Ostrow was among those who voted against the revocation. A lawyer by training, Ostrow says he can't say what his colleagues did or didn't consider in making up their minds, but thinks it was unwise to consider new evidence late in the game. "I do feel like we really should have limited our conversation and our discussion to what the administrative law judge found the facts to be," he says.

Ostrow also thinks the city has unwittingly set a new standard. In his view, any business that has drugs sold on its property--whether they know about it or not--should now be subject to the same harsh penalty as the Hard Times. "I just don't think shutting down a business for an entire year for failing to do all that it could have done to prevent drug use is fair or reasonable," argues Ostrow.

Skarda believes the city will prevail on the appeal, noting that the Hard Times' contention, and the administrative law judge's conclusion that employees were unaware of nearby drug deals is ridiculous. "If you make the argument that there's so much drug activity in the Cedar-Riverside area, then how can you argue that you didn't know it was going on?" he asks.

But Hard Times attorney Larry Leventhal still believes the core of the Hard Times appeal is unimpeachable: Nothing in the findings of the administrative law judge warranted the closure of the café and the city council ignored those findings. "There have been places where there have been shootings and knifings and the site of repeated drug convictions. How many places are closed down because of those things?" Leventhal concludes. "We believe that the action initially was based more on the legal lifestyle of people who frequented the café, rather than any of the announced issues associated with the café."

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