89-848 WHITE - CITV CLERK
PINK - FINANCE G I TY OF I NT PAU L Council Q//�� / � /yJ�
CANARY - DEPARTMENT D�/��i�f O
BLUE - MAYOR File NO• ' � �
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Council esolution ���
,
Presented By
Referred To Committee: Date
Out of Committee By Date
RESOLVED, that the on-sa e ntoxicating liquor license, Sunday
on-sale, off-sale malt, enter ai ment license, and Restaurant
license, held by Richard C. W rd of Ward Property Mgmt. Inc. ,
dba Payne Reliever for the pr mi es at 899 Payne Avenue in St.
Paul ( 1) are hereby suspended fo a period of three consecutive
days for the after hours disp a violation, commencing on the
� Sunday following publi a ion of this Resolution, and ( 2 )
the licensee is hereby reprim n ed for the underage sale violation.
This resolution is based o the record of the proceedings
before the Administrative La J dge, the documents and exhibits
introduced therein, the testi n offered by and on behalf of the
licensee at the Council hear ' ng on May 2, 1989, and the deliberation
of the Council in open sessi n. The Council adopts the findings
of facts and conclusions of aw of the Administrative Law Juc�qe
contained in his report date M rch 28, 1989 . The Council declines
to impose the 5-day su�pensi n ecommended by the Administrative
Law Judge.
The Council departs dow wa d from the presumptive penalty
matrix provided by section 4 9 . 6 of the St. Paul Legislative Code.
This degarture is based on t e itigating factor that the em�loyees
of the Payne Reliever did in f ct inspect the identification of
the underage person and this p rson produced a driver ' s license,
although not her own driver' icense, showing her to be of legal
drinking age.
A copy of this resolut ' n as adopted, shall be sent by first
class mail to the Administr ti e Law Judge and to the licenseholder.
.
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COUNCIL MEMBERS Requested by Department of:
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STATE 0 M NNESOTA
OFFICE OF ADMI IS RATIVE HEARINGS
FOR THE CITY OF ST PAUL, MINNESOTA
In the Matter of Alleged FINDINGS OF FACTS,
Liquor License Violations CONCLUSIONS AND
by Ward Property Management, Inc. , RECOMMENDATION
d/b/a Payne Reliever.
The above-referenced matter came on for hearing before Stephen D. Swanson�
Administrative Law Judge, on Februa 1 and 15, 1989 at Room 1503� City Hall
Annex, 25 West Fourth Street, St. P ul , Minnesota, pursuant to a Notice of
Hearing dated January 9, 1989. Tho as J. Weyandt, Assistant City Attorney,
City of St. Paul , 647 City Hall , St P ul , Minnesota 55102, appeared on behalf
of the City of St. Paul (City) . S. Ma k Vaught, Attorney at Law, Suite 800,
� 345 St. Peter Street, St. Paul , Min es ta 55102, appeared on behalf of Ward
Property Management, Inc. (Licensee . During the hearing, the parties agreed
on the record to strike from the re or all of the testimony given by Richard
Ward when he was recalled near the on lusion of the hearing for cross
examination, and the City agreed n use that testimony for any purpose.
The record in this matter closed o M ch 8, 1989, the date of receipt of the
last post-hearing brief in this ma te .
This Report is a recommendatio , ot a final decision. The St. Paul City
Council will make the final decisi n fter a review of the record which may
adopt, reject or modify the Findin s f Fact, Conclusions, and Recommendation
contained herein. Pursuant to Mi n. Stat. § 14.61 (1988) , the final decision
of the Council shall not be made u ti this Report has been made available to �
the parties to the proceeding €or t east 10 days. An opportunity must be
afforded to each party adversely ff ted by this Report to file exceptions
and present argument to the Counc'1 . The parties should contact Albert B.
Olson, City Clerk, 386 City Hall , St Paul , Minnesota 55102, to ascertain the
procedure for filing exceptions o p esenting argument.
STA EM NT OF ISSUE
The issue in this case is whe he or not the St. Paul City Council should
take adverse action against the liqu r license held by the Licensee as a
result of various alleged licens vi lations.
Based upon all the proceedin s erein, the Administrative Law Judge makes
the following:
F ND NGS OF FACT
1 . The Payne Reliever is o ne by Ward Property Management, Inc. ;
Richard Ward is the President a s le shareholder of Ward Property
Management, Inc. Mr. Ward has n and operated the Payne Reliever for
approximately 11 years. The License h lds a Class 4 liquor license from the
City.
2. In 1985, the St. Paul Polic D partment established a beat patrol in
an area consisting of approximately ig t square blocks including the blocks
creating the intersection of Payne A en e and York Avenue. The Payne Reliever
is on the Southwest corner of Payne ve ue and York Avenue. There are five
other bars holding on-sale liquor li en es within a two-block area of the
Payne Reliever. The beat patrol con is s of two police officers in a squad
car; much of the officers' time is s en on foot and in the bars. The Payne
Avenue beat patrol area is primarily re idential , and the purpose of the beat
patrol is to address neighborhood co ce ns by monitoring the businesses and
the bars in the area, by collecting nt lligence on criminal activities, by
reducing police calls, and by enforc ng the law in the patrol area. There is
a problem in the beat patrol area wi h ustomers of the bars leaving the bars
with beer; police officers on the be t atrol observe at least one person each
evening with a beer in public. It i t e practice of officers on the beat
patrol to station themselves outside on of the bars at closing time each
night; they select the bar on the ba is of the nature of the customers in the
bar, their purpose being to prevent is urbances as customers exit the bar.
The focus of the beat patrol is to li "nate the consumption of alcoholic
beverages in public by enforcing th 1 against perpetrators, rather than to
focus on possible violations by the ba in the area.
3. The Payne Reliever is loca ed in a building with dimensions of
approximately 80 feet by 120 feet. Cu tomers enter and leave the Payne
Reliever through a set of inetal doo s hat open out to the street; those doors
have no windows or other means of v ew ng one side from the other.
Respondent's (Res.) Ex. 3. This se o doors will hereinafter be referred to
as the main entrance. Upon enterin t rough the main entrance, a customer is
confronted immediately with a secon s t of inetal doors which open out toward
the street. Res. Ex. 1 , 3. Upon e te ing through the second set of double
doors, a customer traverses a front ha 1 approximately 10 feet wide and 20
feet long; approximately half way d wn the hall , a set of doors on the left
provide entrance to the area contai in stage #1 and bar #1 (hereinafter
referred to as the "strip bar") . R s. Ex. 1 . At the end of the front hall is
a set of inetal doors that open out ow rd the hall , and that provide access to
the part of the establishment conta'ni g stage #2 and bar #2 (hereinafter
referred to as the "rock bar") , the of ice, the restrooms, the employee
entrance, and the storage area. Re . x. 1 , 2. Separating the "strip bar"
and the "rock bar" is a two-foot s nd roof wall . The "rock bar" consists of
a dance floor with a stage at one d, elevated by approximately one foot, and
an observation bar at the other en . es. Ex. 1 . The dance floor and
observation bar have tables and bo th on both sides and an eight-foot
standing area between the observation ar and the hall ; the hall provides
access from the entry doors throug t "rock bar" to the storage area. Res.
Ex. 1 . Across this hall from the ta ding area is bar #2, which has seating
on all four sides, the restrooms, nd the office. Res. Ex. 1 . Adjacent to
the office is a single door that o en onto a set of outside stairs to the
sidewalk (hereinafter referred to s he "employee entrance") . Res. Ex. 1 .
4. The usual hours for the " oc bar" are 8:00 or 9:00 p.m. to closing;
even on a busy night, patrons do n t tart arriving until 9:00 or 10:00, and
the "rock bar" is never busy until 11 00. If a cover charge is in effect for
the "rock bar," the cover charge i r duced to $2.00 at midnight, and $1 .00 at
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12:30 a.m. ; patrons are prohibited f om ntering the "rock bar" after 12:45
a.m. Res. Ex. 5. Two hundred patro s i the "rock bar" would constitute a
busy night. The regular hours for t e ' strip bar" are 11 :00 a.m. to closing.
Oancers who perform in the "strip ba " re provided through a contract with
Party Time Agency; The Payne Relieve m y request that a particular dancer not
be sent by Party Time Agency, but th P yne Reliever can not request any
particular dancer. Liquor or beer a e ot sold in either bar after 12:45
a.m. An effort is made to ensure th t 11 patrons have left the Payne
Reliever by 1 :15 a.m. ; the bouncers eg n to clear the Payne Reliever of
patrons at 1 :05 a.m. Res. Ex. 5. T e ayne Reliever serves beer in cans,
mixed drinks, and soft drinks. The os of a beer is $2.00, at least double
the cost of a beer at any of the oth r ars in the Payne Avenue beat patrol
area. Persons often attempt to ente t e Payne Reliever with beer acquired
elsewhere; estimates of the number o s ch occurrences per night range f rom
3-5 to 10 times per night. Persons tt mpting to enter the Payne Reliever
with beer acquired elsewhere are den ed entry, or are permitted to enter after
the beer is confiscated by a Payne R li ver employee; if a person is denied
entry, the person is allowed to exit th Payne Reliever with the beer, and may
or may not be accompanied to the mai e trance by a Payne Reliever employee.
Employees cleaning the Payne Relieve p rking area and the property
irt�nediately adjacent to the Payne Re ie er often find empty beer cartons, and
empty cans of beer, including brands th t the Payne Reliever does not sell .
Patrons often attempt to leave the P yn Reliever with beer acquired in the
Payne Reliever, especially at closin t me. Such incidents occur 10-20 times
per night. These facts are applicab e o the period of time covering the
incidents at issue in the present p ce ding.
5. The following management p c 'ces, staffing patterns, and policies
were in effect at the Payne Relieve a the time of the incidents at issue in
the present proceeding. Ordinarily, M . Ward would be at the Payne Reliever
from 9:30 a.m. or 10:00 a.m. to 3:0 p. . daily, and one to three nights per
week from 8:00 p.m. or 10:00 p.m. t mi night or closing; he kept in contact
with the Payne Reliever from his ho se which is approximately 12 blocks from
the establishment. Mr. Ward was re po sible for selecting bands to perform in
the "rock bar," coordinating the da ce s in the "strip bar," ultimate
supervision of employees, purchasin a vertising, handling banking, and
general management. His policy was to encourage police officers on the beat
patrol to enter the Payne Reliever s ften as they desired, and he attempted
to cooperate with them. The warnin s gns prohibiting the removal of drinks
from the establishment and stating he drinking age, visible in Res. Ex. 2-4,
or similar signs, were present in t e ocations visible in those exhibits.
Upon its receipt, a letter from Lie te ant Winger regarding forms of
identification was posted immediate y nside the doors to the "rock bar" where
it could easily be seen by the boun er . Res. Ex. 8. Ordinarily, the Payne
Reliever was staffed as follows: w ek ights -- one manager and two bouncers,
and two bartenders and one waitress in the "rock bar"; weekend nights -- one
manager and three bouncers, and two ba tenders and one waitress in the "rock
bar." At the time of hiring a wait es , the head waitress would review a
statement of rules comparable to th se set forth in Res. Ex. 6. At the time
of hiring a bartender, the officer an ger would review a set of rules
comparable to those set forth in Re . x. 7. Peter Mathew, a manager for one
year during the period at issue in he present proceeding, received on-the-job
training for his managerial duties, bu was provided no additional special
training by the Licensee. The Payn R liever bouncers involved in the
incidents at issue in the present roc eding had received no special training,
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but were provided with a statement of ru es comparable to those set forth in
Res. Ex. 5. The principal duties of he bouncers were to enforce the
Licensee's policy of checking patron de tification for age eligibility,
protect the patrons and employees, pr vi e beer and ice for the bartenders
upon request, and enforce the License 's policy of preventing persons from
entering or leaving the Payne Relieve w'th beer. The practice was to have
one bouncer stationed in the front hall t all times to prevent persons from
entering or leaving with beer, and t as ist in checking identification;
occasionally, duties in other areas f e Payne Reliever would require the
attention of two bouncers. The one r o bouncers not stationed in the front
hall would make periodic rounds thro gh both the "strip" and "rock bars". At
closing time, the bouncers were resp nsible for notifying patrons of that fact
and ensuring that patrons left the e ta lishment. At 1 :30 a.m. , the bouncers
were responsible for ensuring that n e ployees remained in the Payne Reliever
who did not have specific duties to er orm. After 1 :30 a.m. , the manager
would remain to ring out the tills, ol ect the money, place the money in
hiding places, and lock up the build ng after band members and other employees
had left; if Karen Palm was performi g he duties of manager, a bouncer would
remain in the establishment until Ms P lm was ready to lock up. Ordinarily,
janitorial duties were performed dur ng the day. Waitresses were responsible
for clearing their tables and booths an bringing the refuse and glasses up to
the bars before leaving work. Becau e t opened first, the "strip bar" would
be thoroughly cleaned before the "ro k ar". To curtail the carrying of beer
in and out of the Payne Reliever, a an atory coat check policy was
implemented in late October, 1988. mp oyees were required to describe any
serious incidents that occurred in e ayne Reliever on a form provided by
Mr. Ward.
6. Since coming under the Lic ns 's control , there has never been a
shooting or stabbing in the Payne R li ver; there has never been a
prostitution arrest in the Payne Re ie er; the Licensee has never been cited
for a drug-related offense, a prost tu ion-related offense, or gambling; the
Licensee has never been cited for a vi lation regarding wet T-shirt contests;
and the Licensee has never received an citations regarding alleged liquor law
violations associated with the Payn R liever.
7. On June 15, 1988, St. Paul Po ice Officers Jensen and Garvey were on
beat patrol duty in a squad car; th y ere in uniform. At approximately 2:40
a.m. , they observed a woman knockin o the main entrance to the Payne
Reliever. The officers parked the qu d car in front of the Payne Reliever
and joined the woman at the front d or At the time of this incident, Ms.
Karen Palm, Mr. Peter Mathew, a Mr. Ti ers, and one or more additional
bartenders or waitresses were in t P yne Reliever; Ms. Palm was performing
the duties of manager, and Mr. Mat ew as performing the duties of night
janitor. Also in the establishmen w re two to four employees of the band
which had just concluded a perform nc while the Payne Reliever was open for
business; these employees were in he process of packing the band's equipment
in order that it could be removed ro the establishment. One of the officers
used a metal flashlight to augment th woman's knocking on the main entrance.
Neither Ms. Palm nor Mr. Mathew he rd the knocking on the main entrance. At
approximately the same time, Mr. M th w unlocked the employee entrance to
permit an employee of the band to xi the establishment in order to ready the
band's moving truck, Mr. Mathew ca e own the outside staircase from the
employee entrance to the sidewalk, an at that moment noticed one officer near
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the main entrance. Mr. Mathe wa able to discern that the officer was
engaged in conversation with o e r more other persons which were outside of
Mr. Mathew's view. The office s w Mr. Mathew, Mr. Mathew and the officer did
not exchange words, and the of ic r did not make any signal to Mr. Mathew.
Mr. Mathew then re-entered the es ablishment through the employee entrance,
locked the door, and returned o is duties of cleaning the "rock bar"; prior
to the arrival of the officers, th "strip bar" had been cleaned and closed.
A couple of minutes after re-en er ng the establishment, Mr. Mathew heard a
knock on the employee entrance, th person knocking identified himself as a
police officer, Mr. Mathew gran ed him entrance, he and the police officer
walked through the establishmen t the main entrance, and admitted the second
police officer. No more than fi e inutes elapsed between the time that Mr.
Mathew exited the Payne Reliever th ough the employee entrance and the time
that the police officers were ad it ed to the establishment. At the time the
police officers gained admittanc , he tables and bar in the "rock bar" were
littered with beer cans and othe n rmal bar litter, Ms. Palm was in the
office, the Payne Reliever emplo es were cleaning up, and the band employees
were packing up the band's equip nt There were no unauthorized persons in
the Payne Reliever. No persons i t e Payne Reliever were consuming alcoholic
beverages. The police officers d d ot touch the visible beer containers to
determine whether they were cold, th observed no unopened liquor or beer
containers, they observed no pers s onsuming alcoholic beverages, and they
made no arrests and issued no cita io s. All the persons in the Payne
Reliever at the time of this incid nt were authorized to be there, and were
performing their ordinary responsi il ties. Mr. Mathew prepared a written
report regarding the incident for r. Ward.
8. At approximately 12:50 a. . o June 16, 1988, police officers
Malmberg and Jensen were approachin t e main entrance of the Payne Reliever
when they observed Tamia Strand exi in the establishment through the main
entrance carrying a can of Special xp rt beer. They escorted Ms. Strand into
the Payne Reliever, confiscated the be r, and asked for identification. Ms.
Strand produced a Minnesota drivers lic nse in the name of Patricia Ann
Parisi ; that license described Ms. P ri i as five foot, seven inches tall and
one hundred fifty pounds in weight. Th picture on the license portrayed a
female with a round face, and the bi th date on the license made the holder
over twenty-one years of age. At th ti e Ms. Strand produced the Parisi
license, the officers observed a sec d icense in her wallet and requested
that she produce that license. Ms. S ra d produced the second license, a
Minnesota drivers license in the name of Tamia Strand; the birth date on that
license revealed that Ms. Strand was ot twenty-one years of age. That
license described Ms. Strand as five oo , five inches tall , and approximately
one hundred and five pounds in weight; sh was not pictured as having as round
a face as the picture on the Parisi li en e. The officers cited Ms. Strand
for drinking in public, and underage c ns mption. Prior to the incident with
the officers, at the time Ms. Strand h d irst entered the Payne Reliever, Mr.
Mathew saw her, and requested that an mp oyee of the Payne Reliever check her
identification. Upon the request of t t mployee, Ms. Strand produced the
Parisi license, and on the basis of tha 1 cense, she was admitted to the
Payne Reliever. The can of Special Exp rt beer that was confiscated from
Ms. Strand was sold or furnished to Ms. St and by the Payne Reliever. The
officers did not issue a citation to th P yne Reliever. Mr. Mathew prepared
a written report describing the inciden f Mr. Ward.
9. On the evening of July 17, 1988 t e Payne Reliever was conducting a
wet T-shirt contest. It was the practic o Mr. Ward to conduct these
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contests on Sunday evenings for one t t o months each sur�ner. Contestants
were not employees or paid agents of he Payne Reliever. The contest rules
were explained to each contestant. T e ules required a bikini bottom, and
prohibited G strings and any exposure of genitals or breasts. The contestants
were advised that violation of the ru es would result in disqualification from
the contest and ejection from the Pay e eliever. While on beat patrol on
July 17, 1988, Officer Jensen entered th Payne Reliever at approximately
11 :50 p.m. , and remained in the esta is ment from five to ten minutes. The
wet T-shirt contest was in progress, nd the "rock bar" was very crowded. The
contest was being conducted by an an ou er who was not an employee of the
Licensee; Mr. Mathew was operating t e rerecorded music equipment, and
selecting songs based upon the reque ts of the contestants. Officer Jensen
observed a contestant named Tiffany ud . After standing in a child's plastic
wading pool on stage #2 and being so ke with water, Ms. Gude came down onto
the "rock bar" dance floor. Ms. Gud 's dance performance lasted two to four
minutes, the length of one prerecord d ong. During that performance, Ms.
Gude got down on the dance floor, sp ea her legs apart, began spinning
around, and pulled the G string that sh was wearing to one side on two or
three occasions, thereby exposing h g nitals. Officer Jensen observed this
exposure, but issued no citation to h Payne Reliever, and did not arrest Ms.
Gude; rather, he prepared a report or he St. Paul Police Department vice
unit. Mr. Mathew did not observe t e xposure, but he was informed of the
exposure by more than one patron of th bar. Upon being so informed, he told
Ms. Gude that she had been disquali ie from the contest, and she left the
establishment. The amount of time ha elapsed between the time that Mr.
Mathew was advised of the exposure o he time that Ms. Gude left the Payne
Reliever was between five and tem m �u es. Ms. Gude was not an employee or a
paid agent of the Payne Reliever; s e ad never been a dancer in the strip
bar. Prior to beginning her perfo an e, Ms. Gude had been advised of the
contest rules and signed a stateme at she agreed "to abide by all state
and local laws concerned in the Pa ne eliever while participating in the wet
T-shirt contest. " Res. Ex. 12. M . athew was unaware of any incidents of
exposure of genitals or breasts du in prior wet T-shirt contests; the Payne
Reliever had never received a crim na citation regarding a wet T-shirt
contest. The week following the J ly 17, 1988 incident, wet T-shirt contests
were stopped at the Payne Reliever
10. On July 23, 1988, At appr xi ately 1 :05 a.m. , Officer Jensen was
standing across York Avenue from t e ayne Reliever, and he observed Jerome
Brelje exiting the Payne Reliever h ugh the main entrance carrying a twelve
ounce can of Miller beer. Office J sen had not seen Mr. Brelje enter the
Payne Reliever. Officer Jensen i su a citation to Mr. Brelje for drinking
in public. Mr. Brelje acquired t e an of beer in the Payne Reliever. No
citation was issued to the Licens e.
11 . On July 24, 1988, after ta ding on the corner of York Avenue
immediately across from the entra ce of the Payne Reliever for ten to fifteen
minutes, Officer Jensen, at appro im tely 1 :05 a.m. , observed Aaron Bailie
exiting the Payne Reliever throug t e main entrance carrying a twelve ounce
can of Budweiser beer. Upon fur e investigation, Officer Jensen determined
that Mr. Bailie was also carryin th ee small bar glasses. Officer Jensen
entered the Payne Reliever, aske Mi hael Villarreal , an employee of the Payne
Reliever, whether the glasses we e he property of the Payne Reliever and
whether Mr. Villarreal desired t p ess charges for theft against Mr. Bailie.
Mr. Villarreal responded that th g asses were the property of the Payne
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Reliever, and that he did wish to pre s harges against Mr. Bailie. Officer
Jensen returned the three glasses to r. Villarreal , and Mr. Bailie was cited
for drinking in public and theft of e lasses. Earlier in the evening, Mr.
Villarreal had once or twice warned r. ailie in the Payne Reliever to
properly comport himself. Mr. Baili ac uired the twelve ounce can of
Budweiser beer in the Payne Reliever. citation was issued to the Licensee.
12. On August 15, 1988, Officer Mal berg was standing in the area of the
"rock bar" at approximately 12:30 a. . Beverly Joan Flowers, who was on stage
#2, stood behind a member of the ban a d placed her hands on his crotch;
Officer Malmberg observed this incid nt James Crea, who was employed as a
bouncer for the Payne Reliever on th t ate, observed Ms. Flowers stand behind
the band member and place her hands n is shoulders. Mr. Crea approached Ms.
Flowers and directed her to leave th s age, and she left the stage and went
to the dance floor. Ms. Flowers, wh w s wearing a short leather skirt and no
underwear, sat on the observation ba , ifted her legs in the air, and spread
her legs. At this time, there were pp oximately one hundred customers
surrounding the observation bar and an e floor. Peter Mathew, an employee at
the Payne Reliever who was not on du y t the time of the incident, and Kerry
S. Murphy, who was on duty as a boun er heard cheering and approached the
rock bar. Based upon his observatio o Ms. Flowers on the observation bar,
Mr. Mathew immediately directed Mr. ur hy and Mr. Crea to eject Ms. Flowers
from the Payne Reliever. Mr. Murph an Mr. Crea advanced through the
customers located in the standing a a, and when he reached the dance floor,
Mr. Murphy observed Ms. Flowers dan ing with her skirt above her hips, thereby
exposing her genitals and buttocks. M . Murphy immediately picked Ms. Flowers
up. carried her through the Payne R li ver, and put her down on the sidewalk
in front of the main entrance. The ti e that elapsed between Ms. Flowers'
exposure on the observation bar to er ejection from the Payne Reliever was
approximately two minutes. Ms. Flo er was arrested by Officer Malmberg, and
subsequently charged with disorderl c nduct. Ms. Flowers had danced in the
strip bar prior to August 15� 1988; sh had never been an employee of the
Payne Reliever, and she was not an mp oyee or paid agent of the Payne
Reliever at the time of the inciden . No citation was issued to the
Licensee. Mr. Mathew prepared a wr tt n report regarding the incident for
Mr. Ward.
13. On August 30, 1988 at appr xi ately 12:00 a.m. , Officers Malmberg and
Reed were driving on Payne Avenue i a squad car, and observed Russell Lindbom
exiting the Payne Reliever through he main entrance carrying a can of
Budweiser beer. The officers stopp d he squad car, Mr. Lindbom observed
them, Mr. Lindbom dropped the can o b er and stepped on it, and Mr. Lindbom
began to walk away. He was appreh de by Officer Reed, the can of beer was
confiscated, and the can was cold. Th identification tendered by Mr. Lindbom
to the officers revealed that he w s enty years old on August 30, 1988; he
was not searched for other forms o i ntification. Mr. Lindbom denied
acquiring the beer in the Payne Re ie r, and stated that he had not been
asked for identification. Mr. Lin bo was cited for underage possession of
intoxicating liquor. No citation as issued to the Licensee.
14. On September 9, 1988, at pp oximately 9:00 p.m. , Officers Malmberg
and Reed observed Kent and Christo he Swanson exiting the Payne Reliever
through the main entrance; Kent Sw ns n was carrying a can of Budweiser beer
and a can of Strohs beer. Kent Sw ns n was cited for public possession of
intoxicating liquor. No citation as issued to the Licensee.
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15. On October 25, 1988, at app oxi ately 12:05 a.m. Officer Jensen was
standing i�nediately in front of the main entrance of the Payne Reliever after
breaking up a fight, when he noticed Mi hael Boskovich exit the Payne Reliever
through the main entrance carrying a ca of Michelob beer. He directed
Mr. Boskovich to return to the Payne Re iever, Mr. Boskovich refused, and
Officer Jensen issued him a citation r. Boskovich was a member of a band
called "Scarlet"; that band was perf rm ng at the Payne Reliever at the time
of the incident. Mr. Boskovich acqu re the beer in the Payne Reliever.
After receiving the citation, Mr. Bo ko ich re-entered the Payne Reliever. No
citation was issued to the Licensee.
16. On November 1 , 1988, at app ox mately 2:25 a.m. , Officer Jensen
checked the employee entrance to the Pa ne Reliever, and found that the door
was not locked. It was a general pr ct ce of Officer Jensen to check the
doors of establishments in the beat at ol area. He entered the Payne
Reliever unannounced, and observed P te Mathew and two other persons seated
at bar #2. The two other persons w e mployees of the band that had
performed that evening at the Payne el 'ever. At the time of Officer Jensen's
entrance, an open can of Budweiser ee was on the bar imnediately in front of
one of the employees; the can was c ld. At the same time, an unopened can of
beer was on a bar 5too1 adjacent to th other employee; that can was very
cold. A plumber was performing wor o the building, and was using the back
door as a means of entry and exit. Ea lier in the evening, the unopened can
of beer, which had been placed on i e ehind the bar, was removed by Mr.
Mathew and placed upon the bar. I ed ately prior to Officer Jensen's
entrance, Mr. Mathew had been perfo mi g managerial duties in the office of
the Payne Reliever. At the time of Of icer Jensen's entrance, the "rock bar"
had been cleaned and there were no ee cans or drink glasses on the tables or
bar #2. The band employees had bee r moving some of the band's equipment,
but were not in the process of remo in equipment at the time of Officer
Jensen's entrance. Officer Jensen on iscated the two cans of beer, issued no
citations, and referred the inciden t the vice unit. Mr. Mathew prepared a
written report regarding the incide t or Mr. Ward. As of the date of the
hearing, Mr. Mathew was no longer a e ployee of the Licensee.
17. A Notice of Hearing was is ue on January 9, 1989, and was served
upon Ward Property Management, Inc. , mail on that date. City Ex. 1 . That
Notice stated that the hearing would held on February 13 and 14, 1989. By
agreement of the parties, the hearing ates were changed to February 14 and
15, 1989. On motion of the City a t e hearing, the alleged incident of July
2, 1988 was stricken from the Noti e.
Based upon the foregoing Findi gs of Fact, the Administrative Law Judge
makes the following:
ON LUSIONS
1 . The St. Paul City Council an the Administrative Law Judge have
authority to consider the issues r is d in the Notice of Hearing and take
adverse action against the liquor ic nse held by the Licensee under Minn.
Stat. §§ 340A.415 and 14.50 (1988) an Chapters 310 and 409 of the St. Paul
Legislative Code (Leg. Code) .
-8-
2. The City has complied with 11 substantive and procedural
requirements of statute and rule gov rn ng this matter, and the Notice of
Hearing was proper and sufficient.
3. The City has the burden of ro f to establish liquor license
violations for which adverse action s roposed by a preponderance of the
evidence.
4. Ward Property Management, I c. (Licensee) is licensed by the City of
St. Paul (City) to sell intoxicating li uors at the Payne Reliever and is,
therefore, required to comply with p ov sions of Minn. Stat. §§ 340A.503,
340A.504 (1988) and Leg. Code, Chapt rs 245, 246, 310, and 409.
5. The City has proved by a pr po derance of the evidence that on
November 1 , 1988, at approximately 2:25 a.m. , the Licensee displayed or
allowed for the display of intoxicat'ng liquor upon the licensed premises in
violation of Leg. Code § 409.07(c) .
6. The incidents on June 16, 1 8 , July 23, 1988, July 24, 1988, August
30, 1988, September 9, 1988, and Oc b 25, 1988, regarding the removal of
beer from the licensed premises by t ns thereof, as set forth in Findings
of Fact Nos. 8, 10, 11 , 13, 14, and 15 respectively, do not constitute a
violation of the statutes and ordin nc s set forth in Conclusion of Law No. 4.
7. The City has failed to pro e y a preponderance of the evidence that
on June 15, 1988, at approximately :4 a.m. , the Licensee allowed the
consumption or display of intoxicat ng liquor in the Payne Reliever in
violation of Leg. Code § 409.07(c) .
8. The City has failed to pro e y a preponderance of the evidence that
on June 15, 1988, at approximately :4 a.m. , the Licensee failed or refused
to allow police officers prompt adm ss on to the licensed premises for
purposes of an inspection in violat on of Leg. Code § 310.12:
9. The City has failed to pro e y a preponderance of the evidence that
the Licensee violated the provision o Leg. Code § 409.09 as a result of the
incidents on July 17, 1988 and Augu t 5, 1988, as set forth in Findings of
Fact Nos. 9 and 12 respectively.
10. The City has proved by a p ep nderance of the evidence that on June
16, 1988, the Licensee sold, furnis ed or gave an alcoholic beverage to a
person under 21 years of age in the Pa ne Reliever. The Licensee has failed
to prove by a preponderance of the vi ence that the alcoholic beverage was
sold, furnished, or given to the pe so in justified reliance upon a valid
Minnesota drivers license or Minnes ta identification card.
11 . The City has failed to pr e y a preponderance of the evidence that
on August 30, 1988, the Licensee s ld, furnished, or gave an alcoholic
beverage to a person under 21 year a .
. 12. Pursuant to Leg. Code § 4 9. (b)(3) , the presumed penalty for the
sale of an alcoholic beverage to a u derage person is five consecutive days
suspension for the first violation
9-
13. Pursuant to Leg. Code § 409 26 b)(5), the presumed penalty for the
consumption or display, or the allow ng of consumption or display of
intoxicating liquor upon the premise o an on-sale establishment at any time
when sale of such liquor is not per 'tt d is three consecutive days suspension
for the first violation.
14. Under Leg. Code § 409.26(a) , d viations from the presumptive
penalties set forth in clause (b) a e propriate if substantial and
compelling reasons for doing so exi t.
15. The Licensee has establish d ubstantial and compelling reasons for a
departure downward from the presump iv five-day suspension prescribed by Leg.
Code § 409.26(b)(3) .
16. The Licensee has failed to es ablish any substantial or compelling
reasons for a departure downward f r m he presumptive three-day suspension
prescribed by Leg. Code § 409.26(b) 5) and the City has not suggested that a
longer suspension is justified.
17. The Licensee is responsibl f r the illegal acts of its employees
pursuant to Leg. Code §§ 4U9.08(5) nd 409.14.
Based upon the foregoing Concl si s, the Administrative Law Judge makes
the following:
REC MM NDATIONS
IT IS HEREBY RECOMMENDED:
(1 ) . That the charge alleging v olation of the liquor laws on November
1 , 1988 be AFFIRMED.
(2) . That the charge alleging v olation of the liquor laws by reason of
the sale of an alcoholic beverage o n underage person on June 16, 1988 be
AFFIRMED.
(3) . That the remaining charge s t forth in the Notice of Hearing be
DISMISSEO.
(4) . That the Licensee's on-s le liquor license for the Payne Reliever be
suspended for a period of five co se utive days.
Dated this � �� �'day of March, 1 89
�Jl.�.tot �1.
S EP EN D. SWANSON
Administrative Law Judge
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NO ICE
Pursuant to Minn. Stat. § 14.62, su d. 1 (1988) , the City Council is
required to serve its final decision up n each party and the Administrative
Law Judge by first class mail .
Reported: Tape Recorded (Tape Nos. 71 , 7136, 7135, 7087, 7065, 7152, 7126) .
M MO ANDUM
The provisions of statute and o di ance applicable to the instant case may
be summarized as follows. Under Mi ne ota Law, it is unlawful for any person
under the age of 21 years to consum a coholic beverages unless in the
household of the person's parent or gu rdian and with the consent of the
parent or guardian, to possess alco ol c beverages with the intent to consume
at a place other than the household of the parent or guardian, or to purchase
or attempt to purchase any alcoholi b verage. Minn. Stat. § 340A.503, subd.
1(2) , subd. 2(2) , subd. 3 (1988) . t s unlawful for any person "to sell ,
barter, furnish, or give alcoholic ev rages to a person under 21 years of
age," except that a parent or guard an may furnish alcoholic beverages to an
underage person solely for consumpt on in the household of the parent or
guardian. Minn. Stat. § 340A.503, ub . 2(1 ) (1988) . It is unlawful for a
person under the age of 21 years to en er an on-sale liquor establishment for
the purpose of purchasing or having se ved any alcoholic beverage. Minn.
Stat. § 340A.503, subd. 4 (1988) . 'It is unlawful for a person under the age
of 21 years to claim to be 21 years ol or older for the purpose of purchasing
alcoholic beverages." Minn. Stat. 3 OA.503, subd. 5 (1988) . "Proof of age
for purchasing or consuming alcohol 'c everages may be established only by a
valid drivers license or Minnesota 'de tification card, or in the case of a
foreign national by a valid passpo ." Minn. Stat. § 3408.503, subd. 6
(1988) . Pursuant to Minn. Stat. § 40 .415, a licensing authority must
suspend for up to 60 days, revoke, r 'mpose a civil fine not to exceed $2,000
"for each violation on a finding th t he license or permit holder has failed
to comply with an applicable statu , ule, or ordinance relating to alcoholic
beverages. " Leg. Code §§ 245.01 a 2 6.01 prohibit any person from drinking
intoxicating liquors in any place pen to the public and in certain public
places within the City of St. Paul . g. Code § 310.12 provides that a
licensed establishment "shall at all imes while open to the public or while
being used or occupied for any pur os be open also to inspection and
examination by any police, fire, o h lth officer or any building inspector
of the city, as well as the inspec or." Leg. Code § 409.07(c) provides that
"[n]o person shall consume or disp ay or allow consumption or display of
liquor upon the premises of an on- al licensee at any time when the sale of
such liquor is not permitted." Le . ode § 409.08 provides in pertinent part
as follows:
(2) No liquor shall be so d r furnished for any purpose
whatever to any person un er twenty-one (21 ) years of age
. . . Proof of age for pu ch sing or consuming alcoholic
11-
beverages may be establishe o ly by a valid driver's
license or Minnesota identi ic tion card, or in the case of
a foreign national by a val 'd assport.
* �
(9) No person shall remain in r loiter in the parking lot
of an on-sale licensee aft r e lawful closing hour.
(10) When a licensee is no ifi d by the police department
that a parade will be held i in one block of the
licensee's establishment, 11 beer and all intoxicating
liquor or liquid of any ty e old during the entire day of
said parade shall be sold nl in plastic or paper
containers. In addition, po receiving such notice, the
licensee shall place a per on at each entrance and each
exit of the establishment t east one hour prior to the
time of parade, and the li en ee shall require a person to
remain at those locations nt 1 one hour after the parade,
to ensure that patrons do ot enter or exit with beer or
intoxicating liquor.
According to Leg. Code § 409.09, th f llowing acts or conduct on licensed
premises are unlawful :
(3) To encourage or permit an person on the licensed
premises to touch, caress r ondle the breasts, buttocks,
anus or genitals of any ot er person.
* * *
(7) To permit any person t r main in or upon the licensed
premises who exposes to pu li view any portion of his or
her genitals or anus.
Leg. Code § 409.12 is identical in ff ct to Minn. Stat. § 340A.415 (1988) .
Under Leg. Code §§ 409.08(5) and 40 .1 , the licensee is made responsible for
any acts of its employees in viola 'on of Chapter 409. Leg. Code § 409.26(a)
states that the purpose of § 409.2 is to establish presumed penalties for
license violations; it provides fu he that the council may deviate from the
presumed penalties in an appropria c se "where the council finds and
determines that there exist substa i and compelling reasons making it more
appropriate to do so. " When devia in from the standards, "the council shall
provide written reasons which specify hy the penalty selected was more
appropriate. " Leg. Code § 409.26( ) , in pertinent part, establishes the
following presumed penalties:
(3) Sale of alcoholic bev ra es to under-age person [five
consecutive days suspensi n or first violation].
* * *
(5) After hours sale or d sp ay of alcoholic beverages
[three consecutive days s sp nsion for first violation].
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(6) Refusal to allow city i sp ctors or police admission to
inspect premises [five cons cu ive days suspension for
first violation].
* * �
(8) Permit person to leave re ises with alcoholic
beverages [three consecutiv d ys suspension for first
violation].
Under Leg. Code § 409.26(d) , in addi io to imposing penalties, the council is
authorized "to impose conditions or ak any other adverse action in
accordance with law . . . . " In pe in nt part, Leg. Code § 310.06(b)
provides that adverse action may be ak n against a licensee for the following
reasons, which are in addition to a her reason provided by law or in other
Code Chapters:
(6) The licensee or applic nt has violated any of the
provisions of these chapte s, or of any statute, ordinance
or regulation reasonably r la ed to the licensed
activity . . . .
(7) The activities of the ic nsee in the license activity
create or have created a s ri us danger to the public
health, safety or welfare . .
As set forth in the Notice of H ar ng (City Ex. 1 ), the alleged violations
in the instant case fall into the f 11 wing categories: (1 ) allowing removal
of beer from the license premises; 2) after hours display or consumption of
intoxicating liquor, or allowing pe so s in the premises after hours; (3)
failure or refusal to allow entry b t e police for inspection; (4) permitting
certain prohibited sexual conduct; nd (5) sale or furnishing of intoxicating
liquor to an underage person.
Allowin removal of beer from t e remises Findin s of Fact Nos. 8 10
11 , 13, 14, and 15) .
Subject to certain exceptions, eg Code §§ 245.01 and 246.01 prohibit the
drinking of intoxicating liquor in ub ic. Those sections do not addre5s the
issue of responsibility for the pro is on of intoxicating liquors that are
subsequently consumed in public. T e ity Council has addressed the problem
of patrons leaving an establishment wi h intoxicating liquor through its
enactment of Leg. Code § 409.08(10) . s noted above, that ordinance provides
that upon notification from the pol 'ce department that a parade will occur,
the licensee must station a person t ach entrance and exit to ensure that
patrons do not enter or leave with ee or intoxicating liquor. That
ordinance, however, does not apply in he instant case. The City argues that
a violation for permitting a patro t leave a licensed establishment with a
beer can be implied from the Code ro 'sions (1 ) prohibiting consumption in
public (Leg. Code §§ 245.01 and 24 .O1 ) , (2) establishing a presumed penalty
for permitting a person to leave t e remises with an alcoholic beverage (Leg.
Code § 409.26(b)(8)) , and (3) allo in adverse action to be taken where the
activities of the licensee "create or have created a serious danger to the
public health, safety, or welfare . . " (Leg. Code § 310.06(b)(7)) . The
Administrative Law Judge does not gr e. The Council obviously understood the
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potential problem and chose to addre s he problem in the very limited context
of public parades; it could have ena te a similar general requirement
applicable to all on—sale establishm nt . The presumed penalty is consistent -
with the parade provision, and can n t rovide a basis for creating a
violation that would run against the li ensee in the general operation of an
establishment. The ordinance author zi g adverse action against the licensee
for activities creating a serious da ge to the public health, safety or
welfare is a general provision. Ho ve , it demands a showing that a licensee
has engaged in a particular "activi " hat constitutes a "serious danger" to
the public health, safety or welfar . o construe this provision as including
isolated instances of patrons exiti g establishment with beer, without
more, would impermissibly broaden t e cope of the provision. One could
envision a situation where a licens e outinely permitted patrons to leave an
establishment with alcoholic bevera es in order to consume them on the
sidewalk in front of the establishm nt such a practice might constitute the
type of "activity" covered by Leg. od § 310.06(b)(7) . In the instant case,
however, the evidence establishes t at the licensee took reasonable
precautions, i .e. , a mandatory coat ch ck and directions to the bouncers to
observe persons leaving the establi hm nt and prohibit persons from leaving
with beer, to deter patrons from le vi g the establishment with beer. In
summary, the Administrative Law Jud e oncludes that the provisions of the
Code applicable to the consumption f ntoxicating liquor in public are
directed to the person consuming th 1 quor and not to the licensee providing
the liquor, and that the instances f atrons leaving the Payne Reliever with
beer do not constitute a violation f ny liquor license statute or
ordinance. See, e.9. , Hansmar In . . Illinois Li uor Control Comm'n, 397
N.E.2d 241 , 244 (I11 . App. 1979) .
After hours dis la or consum io of intoxicatin li uor• allowin
ersons in the remises after hour indin s of Fact Nos. 7 and 16 .
Leg. Code § 409.07(c) prohibit t e consumption or display of intoxicating
liquor at any time when sale is no p rmitted, and prohibits the licensee from
allowing any such consumption or d sp ay. Leg. Code § 409.08(9) prohibits any
person from remaining in an on—sal e tablishment after the lawful closing
hour. The Administrative Law Judg i terprets § 409.08(9) to include, by
implication, an exception for empl ye s and paid agents of a licensee who are
upon the licensed premises in the er ormance of their regular duties. With
respect to the incident that occu ed on June 15, 1988 (Finding of Fact No.
7) , all the persons in the Payne li ver at the time of the incident were
authorized to be there and were p rf ming their ordinary responsibilities.
There is no evidence in the recor e ablishing that intoxicating liquors were
either consumed or displayed. Ac or ingly, the Administrative Law Judge
concludes that this incident did ot constitute a violation of either Leg.
Code § 409.07(c) or § 409.08(9) . In the second incident on November 1 , 1988
(Finding of Fact No. 16) , the evi en e in the record clearly establishes that
Mr. Mathew, the manager on duty t at night, allowed the display of
intoxicating liquor by placing an op n beer on the bar, and at a minimum, by
not properly supervising the acti it es of the two band employees who were in
the Payne Reliever at the time. he efore, the Administrative Law Judge
concludes that this incident cons it ted a violation of Leg. Code
§ 409.07(c) . The Administrative aw Judge finds no evidence in the record to
support either an upward or a do wa d departure from the presumed penalty,
—14—
. � . ��,A -,��� .
and because Mr. Mathew, the offendin e ployee, has been separated from his
employment, the Administrative Law J dg declines to recommend the imposition
of any conditions upon the license a a result of this incident.
Failure or refusal to allow ent b olice Findin of Fact No. 7 .
The City alleges that police of ic s were denied prompt entry to the
Payne Reliever on June 15, 1988. A n ed above, Leg. Code § 310.12 requires
that licensed premises be open for oli e inspection, and the refusal to allow
admission is covered by the presume p alty section. Leg. Code
§ 409.26(b)(6) . The Administrative La Judge concurs with the City's position
that implicit in the requirement of en ry for inspection is a concomitant
requirement that admission be allow d romptly. However, the facts in the
instant case do not support a concl si n that prompt admission was denied on
June 15, 1968. The evidence does n t stablish that employees of the Payne
Reliever heard or should have been bl to hear the woman and the police
officer knocking on the main entran e. Moreover, there is no evidence in the
record suggesting that the police o fi er noticed by Mr. Mathew when he exited
through the employee entrance made ny signal to Mr. Mathew that admission by
the police officer was sought. To r. Mathew, the police officer appeared to
be in conversation with other perso s ot within Mr. Mathew's view, and given
the fact that police officer presen e n the corner of Payne Avenue and York
Avenue was a very conxnon occurrence t ere is no basis for a finding that
Mr. Mathew should have realized tha t e police officer was seeking
admission. Once the officer indica ed his desire to be admitted by knocking
on the employee entrance, he was ad it ed imnediately. Accordingly, the
Administrative Law Judge concludes ha there was no violation of Leg. Code
§ 310.12.
Prohibited sexual conduct Find'n of Fact Nos. 9 and 12 .
The provisions in the Code defi in prohibited sexual conduct are very
precise. Leg. Code § 409.09. In e 'ncident that occurred on July 17, 1988
(Finding of Fact No. 9) , Ms. Gude, h was not an employee or agent of the
Licensee, exposed her genitals during wet T-shirt contest. That exposure
clearly constituted the performanc o an act, as described in Leg. Code
§ 409.09(5)d. That clause, howeve , oes not prohibit the act, but rather
makes unlawful a licensee's conduc i permitting the performance of the act.
Accordingly, the question in the i st nt case is whether the Licensee
permitted Ms. Gude to expose her g ni als during the wet T-shirt contest. The
evidence in the record indicates t at notwithstanding the fact that several
wet T-shirt contests had been cond ct d at the Payne Reliever, no incidents of
exposure had been reported to the ic nsee. Also, the Licensee had adopted a
policy of advising contestants tha e posure was prohibited, and would lead to
disqualification and ejection from th establishment. Based upon the case of
Sabes v. City of Minneapolis, 120 .W 2d 871 , 878, 879 (Minn. 1963) , the
15-
Administrative Law Judge concludes a the Licensee did not permit the
exposure by Ms. Gude� and that ther fo , there was no violation of Leg. Code
§ 409.09(5)d.� E•g• , Eas Life Clu I c. v. License A eal Comm'n, 310
N.E.2d 705 (I11 . App. 1974) . The s co issue regarding the July 17, 1988
incident is whether the Licensee pe i ed Ms. Gude to remain in the Payne
Reliever after the exposure, contra y o the provisions of Leg. Code
§ 409.09(7) . The evidence in the r co d establishes that Ms. Gude left the
premises after the conversation wit M . Mathew, during which he advised her
that she had been disqualified from th contest. Therefore, the Licensee did
not permit Ms. Gude to remain in th P yne Reliever.
During the incident on August 1 , 988 (Finding of Fact No. 12) ,
Ms. Flowers stood behind a member o t e band performing at the Payne Reliever
and placed her hands on his crotch. M . Flowers was not an employee or agent
of the Licensee. If Ms. Flowers wa e couraged or permitted by the Licensee
to perform that act, a violation of Le . Code § 409.09(3) would be
established. Ms. Flower's act was r ndom act, and there is no evidence in
the record to suggest that the Lice se encouraged or permitted the act. In
fact, upon observing Ms. Flowers st nd ng behind the band member, an employee
of the Licensee directed her to lea e tage #2. Therefore, the Administrative
Law Judge concludes that there was o iolation of Leg. Code § 409.09(3) .
Subsequently, Ms. Flowers exposed h r enitals and buttocks on the observation
bar and on the dance floor. For th r asons stated above regarding the July
17, 1988 incident, the Administrati e aw Judge concludes that the Licensee
did not permit or encourage the exp su e in violation of Leg. Code
§ 409.09(5)d. Upon the discovery o t e exposure, Ms. Flowers was promptly
ejected f rom the Payne Reliever. T er fore, there was no violation of Leg.
Code § 409.09(7) . The City argues ha Ms. Flowers should have been ejected
after the act of placing her hands n he crotch of the band member, and that
the Licensee's failure to eject her at that point constitutes a violation.
The Administrative Law Judge disag es because Leg. Code § 409.09 specifically
limits the instances in which the f il re to eject a person will constitute a
violation to instances involving ex os re. Leg. Code § 409.09(7) . Under Leg.
Code § 409.09(3) , a person observed to ching another's genitals must not be
permitted to continue the activity, bu need not be ejected from the
premises.
Sale or furnishin of intoxica in li uor to an undera e erson• failure
to re uire ro er identification in in s of Fact Nos. 8 and 13 .
On June 16, 1988, Ms. Strand, ft r producing a drivers license upon the
request of an employee of the Payn R liever that showed the holder of the
license to be of legal drinking ag , ought or was furnished a beer in the
��A contrary conclusion would eq ire a holding that simply by
conducting a wet T-shirt contest, he Licensee would be deemed to permit any
prohibited sexual conduct committe b a contestant on the theory that it was
foreseeable. In the Administrativ L w Judge's view, su�h a holding would go
well beyond the Sabes decision.
16-
Payne Reliever. At the time, Ms. S ra d was underage and the drivers license
was not hers. Ms. Strand was in vi la ion of Minn. Stat. § 340A.503, subds.
3, 4(a) , and 5 (1988) . Minn. Stat. § 40A.503, subd. 2(1 ) (1988) makes it
unlawful for any person "to sell , b rt r, furnish, or give alcoholic beverages
to a person under 21 years of age . . ." In the recent case of State v.
Neisen, 415 N.W.2d 326, 329 (Minn. 98 ) , the Supreme Court held that by the
enactment of Minn. Stat. § 340A.501 s bd. 6 (1988) , the legislature clearly
intended to preserve the "carding" ef nse to an action for unlawful sale of
intoxicating liquor to an underage er on. The Court noted that the reliance
on an identification card must be j st fied, undertaken prudently and
carefully, and in good faith. 415 .W 2d 326, 329. The Court interpreted the
term, "valid drivers license," to m an a license that would convince a careful
and prudent person that it is valid 15 N.W.2d 326, 329. The Licensee has
raised the "carding" defense with r sp ct to this incident, and the burden is
upon the Licensee to establish that it reliance on the drivers license
produced by Ms. Strand was justifie , hat review of the license was
undertaken prudently and carefully, th t the license would have convinced a
careful and prudent person that it as valid, and that the check of Ms.
Strand's identification was in good fa th. The Administrative Law Judge
believes that the Licensee has fail d o meet its burden in this regard. The
evidence clearly establishes that t e heck of Ms. Strand's identification was
undertaken in good faith, and that he drivers license produced by Ms. Stand
appeared, on its face, to be a vali M'nnesota drives license. The question
is whether the employee's review of th card was undertaken with sufficient
prudence and care so as to justify rel 'ance on the license. This issue comes
down to the question of a comparis b tween the picture and weight and height
information on the license with th pe son of Ms. Strand. The license
described a person of five feet, s en inches in height and one hundred and
fifty pounds in weight, and pictur a female with a round face. At the time
of the incident, Ms. Strand was fi f ot, five inches tall , weighed
approximately one hundred and five o ds, and did not have as round a face as
the picture on the license. Both li e officers indicated that they could
easily determine, on the basis of hys"cal appearance, that Ms. Strand was not .
the person pictured and described n e license, but the police officers came
to this conclusion after having kn 1 ge of the fact that Ms. Strand was not
the person identified on the licen e. Mr. Mathew indicated that Ms. Strand
looked similar to the person pictu ed. The discrepancy of two inches in
height is not significant. Howeve , sed upon the discrepancy in weight, and
given the fact that closer attenti n s called for as a result of the
specific instructions given by Mr. Ma hew to the employee to check Ms.
Strand's identification� the Admin'st tive Law Judge must conclude that the
Licensee has not sustained its bur en of provjng that it acted carefully and
prudently, and has not made out a ' ca ing" defense. The Administrative Law
Judge does believe that there are ' su stantial and compelling" reasons under
Leg. Code § 409.26(a) for a reduct on of the presumed penalty from a five-day
to a two-day suspension. First, t e icensee has adopted a specific policy of
checking identification. Second, he seriousness with which the Licensee
enforces this policy is demonstrat d y the actions of Mr. Mathew in the
instant case in making sure that M . trand's identification was checked.
Third, while the Licensee has not us ained its burden of showing that its
employee acted with sufficient car a d prudence to establish a "carding"
defense, Mr. Mathew and the employ e learly made an effort. In short, this
case should be distinguished from he case where no identification is
requested from an underage person o hom intoxicating liquor is sold. The
Administrative Law Judge does not el eve that any conditions upon the license
should be imposed as a result of t is incident.
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On August 30, 1988, Mr. Lindbo ex'ted the Payne Reliever through the main
entrance carrying a can of beer; h wa underage at the time. Mr. Lindbom
stated that he had not been asked f r 'dentification in the Payne Reliever,
and denied acquiring the beer in t P yne Reliever. The can of beer was
cold. As discussed above, the "ca in " defense is available in an action
against a licensee for sale of int ic ting liquor to an underage person under
Minn. Stat. § 340A.503, subd. 2(1 ) (19 8) . However, although it is unlawful
for an underage person to enter a liqu r establishment, it is not a violation
for a licensee to permit an undera p rson to enter a liquor establishment.
Minn. Stat. § 340A.503, subd. 4 (1 8) . The question, then, is whether the
Licensee sold, furnished, or gave e eer to Mr. Lindbom in the Payne
Reliever. If so, the Licensee viol t Minn. Stat. § 340A.503, subd. 2(1)
(1988) , and Leg. Code § 409.08(2) ; h Licensee has not raised a "carding"
defense with respect to this incid nt. Under the Neisen case, the charging
authority has the burden under Min . at. § 340A.503, subd. 2(1 ) of proving
that intoxicating liquor was sold, fu ished, or given to the person and that
the person was underage. State v. Nei en, 415 N.W.2d 326, 328 (Minn. 1987) .
The evidence in the record establi hes that it was the Licensee's policy to
check the identification of all pe so entering the Payne Reliever. The
evidence in the record also establish that persons often consume beer in
cans in the parking area and in ot er reas adjacent to the Payne Reliever,
that persons regularly attempt to ri cans of beer into the Payne Reliever,
and that the cost of a beer in the Pa e Reliever is at least twice the cost
of beer in other bars in the area. T re is no evidence in the record to
place Mr. Lindbom in either the "s ri bar" or the "rock bar," or anywhere
within the Payne Reliever for a sp ci ied period of time. Given these facts,
the Administrative Law Judge decli es o find, based upon the sole fact that
Mr. Lindbom was observed exiting f om he main entrance with a beer, that that
beer was sold, furnished, or given to him by the Licensee. Therefore, the
Administrative Law Judge concludes th the City has not met its burden of
establishing an underage sale in t is instance. ,
S.D.S.
18—
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STATE F INNESOTA
OFFICE OF ADMI IS RATIVE HEARINGS
FOR THE CITY OF ST. PAUL, MINNESOTA
In the Matter of Alleged FINDINGS OF FACTS,
Liquor License Violations CONCLUSIONS AND
by Ward Property Management, Inc. , RECOMMENDATION
d/b/a Payne Reliever.
The above-referenced matter came on for hearing before Stephen D. Swanson,
Administrative Law Judge, on Februar 1 and 15, 1989 at Room 1503, City Hall
Annex, 25 West Fourth Street, St. Pa 1 , Minnesota, pursuant to a Notice of
Hearing dated January 9, 1989. Thom s . Weyandt, Assistant City Attorney,
City of St. Paul � 647 City Hall , St. Pa 1 , M��� ota 55102, appeared on behalf
of the City of St. Paul (City) . S. ar� Attorney at Law, Suite 800,
345 St. Peter Street, St. Paul "' ppeared on behalf of Ward
Property Management Inc. " iearing the parties agreed
on the record to strike fr� �J testimony given by Richard
( �i -_--
Ward when he was recalled n �' � hearing for cross
examination, and the City ac � f timony for any purpose.
The record in this matter cl ✓� r� �e date of receipt of the
last post-hearing brief in t� � �''�!�
� ' �',r�,�
This Report is a recommenc `��/'-'��,:� ion. The St. Paul City
Council will make the final de, the record which may
adopt, reject or modify the Fin is, and Recommendation
contained herein. Pursuant to 8) , the final decision
of the Council shall not be made �en made available to
the parties to the proceeding fo� oportunity must be
afforded to each party adversely '.o file exceptions
and present argument to the Counc-� ..antact Albert B.
Olson, City Clerk, 386 City Hall , . _.,�a 55102, to ascertain the
procedure for filing exceptions or .,�y argument.
STATE EN OF ISSUE
The issue in this case is wheth r r not the St. Paul City Council should
take adverse action against the liq or license held by the Licensee as a
result of various alleged license v ol tions.
Based upon all the proceedings er in, the Administrative Law Judge makes
the following:
FIND NG OF FACT
1 . The Payne Reliever is owne b Ward Property Management, Inc. ;
Richard Ward is the President and s 1 shareholder of Ward Property
Management, Inc. Mr. Ward has own d operated the Payne Reliever for
approximately 11 years. The Licensee ol s a Class 4 liquor license from the
City.
2. In 1985, the St. Paul Police ep rtment established a beat patrol in
an area consisting of approximately ei ht square blocks including the blocks
creating the intersection of Payne Av ue and York Avenue. The Payne Reliever
is on the Southwest corner of Payne A en and York Avenue. There are five
other bars holding on-sale liquor lic ns s within a two-block area of the
Payne Reliever. The beat patrol consist of two police officers in a squad
car; much of the officers' time is sp nt on foot and in the bars. The Payne
Avenue beat patrol area is primarily es'dential , and the purpose of the beat
patrol is to address neighborhood con er s by monitoring the businesses and
the bars in the area, by collecting i te ligence on criminal activities, by
reducing police calls, and by enforci g he law in the patrol area. There is
a problem in the beat patrol area wit c stomers of the bars leaving the bars
with beer; police officers on the bea p trol observe at least one person each
evening with a beer in public. It is th practice of officers on the beat
patrol to station themselves outside ne of the bars at closing time each
night; they select the bar on the bas s f the nature of the customers in the
bar, their purpose being to prevent d st rbances as customers exit the bar.
The focus of the beat patrol is to el mi ate the consumption of alcoholic
beverages in public by enforcing the aw against perpetrators, rather than to
focus on possible violations by the b rs in the area.
3. The Payne Reliever is locate i a building with dimensions of
approximately 80 feet by 120 feet. C s mers enter and leave the Payne
Reliever through a set of inetal doors th t open out to the street; those doors
have no windows or other means of vi i one side from the other.
Respondent's (Res.) Ex. 3. This set of aors will hereinafter be referred to
as the main entrance. Upon entering th ugh the main entrance, a customer is
confronted immediately with a second se of inetal doors which open out toward
the street. Res. Ex. 1 , 3. Upon en er'ng through the second set of double
doors, a customer traverses a f ront al approximately 10 feet wide and 20
feet long; approximately half way do n he hall , a set of doors on the left
provide entrance to the area contain ng stage #1 and bar #1 (hereinafter
referred to as the "strip bar") . Re . x. 1 . At the end of the front hall is
a set of inetal doors that open out t wa d the hall , and that provide access to
the part of the establishment contai in stage #2 and bar #2 (hereinafter
referred to as the "rock bar") , the ff ce, the restrooms, the employee
entrance, and the storage area. Res E . 1 , 2. Separating the "strip bar"
and the "rock bar" is a two-foot sou dp oof wall . The "rock bar" consists of
a dance floor with a stage at one en , levated by approximately one foot, and
an observation bar at the other end. R s. Ex. 1 . The dance floor and
observation bar have tables and boot s n both sides and an eight-foot
standing area between the observatio b r and the hall ; the hall provides
access f rom the entry doors through he "rock bar" to the storage area. Res.
Ex. 1 . Across this hall f rom the s nd'ng area is bar #2, which has seating
on all four sides, the restrooms, a e office. Res. Ex. 1 . Adjacent to
the office is a single door that op ns nto a set of outside stairs to the
sidewalk (hereinafter referred to a t e "employee entrance") . Res. Ex. 1 .
4. The usual hours for the "r ck bar" are 8:00 or 9:00 p.m. to closing;
even on a busy night, patrons do no s art arriving until 9:00 or 10:00, and
the "rock bar" is never busy until 1 : 0. If a cover charge is in effect for
the "rock bar," the cover charge is re uced to $2.00 at midnight, and $1 .00 at
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12:30 a.m. ; patrons are prohibited f ro e tering the "rock bar" after 12:45
a.m. Res. Ex. 5. Two hundred patrons in the "rock bar" would constitute a
busy night. The regular hours for the "s rip bar" are 11 :00 a.m. to closing.
Dancers who perform in the "strip bar" ar provided through a contract with
Party Time Agency; The Payne Reliever ay request that a particular dancer not
be sent by Party Time Agency, but the ay e Reliever can not request any
particular dancer. Liquor or beer ar no sold in either bar after 12:45
a.m. An effort is made to ensure tha al patrons have left the Payne
Reliever by 1 :15 a.m. ; the bouncers b gi to clear the Payne Reliever of
patrons at 1 :05 a.m. Res. Ex. 5. Th P ne Reliever serves beer in cans,
mixed drinks, and soft drinks. The c st of a beer is $2.00, at least double
the cost of a beer at any of the othe b rs in the Payne Avenue beat patrol
area. Persons often attempt to enter th Payne Reliever with beer acquired
elsewhere; estimates of the number of su h occurrences per night range from
3-5 to 10 times per night. Persons a te pting to enter the Payne Reliever
with beer acquired elsewhere are deni d ntry, or are permitted to enter after
the beer is confiscated by a Payne Re ie er employee; if a person is denied
entry, the person is allowed to exit he Payne Reliever with the beer, and may
or may not be accompanied to the main en rance by a Payne Reliever employee.
Employees cleaning the Payne Reliever pa king area and the property
immediately adjacent to the Payne Rel ev r often find empty beer cartons, and
empty cans of beer, including brands ha the Payne Reliever does not sell .
Patrons often attempt to leave the Pa ne Reliever with beer acquired in the
Payne Reliever, especially at closing ti e. Such incidents occur 10-20 times
per night. These facts are applicabl t the period of time covering the
incidents at issue in the present pr ee ing.
5. The following management pr cti es, staffing patterns, and policies
were in effect at the Payne Reliever at he time of the incidents at issue in
the present proceeding. Ordinarily, Mr. Ward would be at the Payne Reliever
f rom 9:30 a.m. or 10:00 a.m. to 3:00 p. . daily, and one to three nights per
week from 8:00 p.m. or 10:00 p.m. to mi night or closing; he kept in contact
with the Payne Reliever from his hou e, which is approximately 12 blocks f rom
the establishment. Mr. Ward was res on ible for selecting bands to perform in
the "rock bar, " coordinating the dan er in the "strip bar," ultimate
supervision of employees, purchasing ad ertising, handling banking, and
general management. His policy was o ncourage police officers on the beat
patrol to enter the Payne Reliever a o ten as they desired, and he attempted
to cooperate with them. The warning si ns prohibiting the removal of drinks
from the establishment and stating t e rinking age, visible in Res. Ex. 2-4,
or similar signs, were present in th 1 cations visible in those exhibits.
Upon its receipt, a letter from Lieu en nt Winger regarding forms of
identification was posted immediatel i side the doors to the "rock bar" where
it could easily be seen by the bounc rs. Res. Ex. 8. Ordinarily, the Payne
Reliever was staffed as follows: w kn'ghts -- one manager and two bouncers,
and two bartenders and one waitress in he "rock bar"; weekend nights -- one
manager and three bouncers, and two ba enders and one waitress in the "rock
bar. " At the time of hiring a wait es , the head waitress would review a
statement� of rules comparable to th se set forth in Res. Ex. 6. At the time
of hiring a bartender, the officer an ger would review a set of rules
comparable to those set forth in Re . x. 7. Peter Mathew, a manager for one
year during the period at issue in he present proceeding, received on-the-job
training for his managerial duties, bu was provided no additional special
training by the Licensee. The Payn R liever bouncers involved in the
incidents at issue in the present p oc eding had received no special training,
� 3-
but were provided with a statement of ul s comparable to those set forth in
Res. Ex. 5. The principal duties of t e ouncers were to enforce the
Licensee's policy of checking patron i en ification for age eligibility,
protect the patrons and employees, pro id beer and ice for the bartenders
upon request, and enforce the Licensee's olicy of preventing persons from
entering or leaving the Payne Relieve wi h beer. The practice was to have
one bouncer stationed in the front hall all times to prevent persons f rom
entering or leaving with beer, and to as ist in checking identification;
occasionally, duties in other areas o t e Payne Reliever would require the
attention of two bouncers. The one o t o bouncers not stationed in the front
hall would make periodic rounds throu h oth the "strip" and "rock bars" . At
closing time, the bouncers were respo si le for notifying patrons of that fact
and ensuring that patrons left the es ab ishment. At 1 :30 a.m. , the bouncers
were responsible for ensuring that no em loyees remained in the Payne Reliever
who did not have specific duties to p rf rm. After 1 :30 a.m. , the manager
would remain to ring out the tills, c ll ct the money, place the money in
hiding places, and lock up the buildi g fter band members and other employees
had left; if Karen Palm was performin t e duties of manager, a bouncer would
remain in the establishment until Ms. Pa m was ready to lock up. Ordinarily,
janitorial duties were performed duri g he day. Waitresses were responsible
for clearing their tables and booths nd bringing the refuse and glasses up to
the bars before leaving work. Becau e i opened first, the "strip bar" would
be thoroughly cleaned before the "ro k ar". To curtail the carrying of beer
in and out of the Payne Reliever, a an atory coat check policy was
implemented in late October, 1988. mp oyees were required to describe any
serious incidents that occurred in t e ayne Reliever on a form provided by
Mr. Ward.
6. Since coming under the Lice se 's control , there has never been a
shooting or stabbing in the Payne Re ie er; there has never been a
prostitution arrest in the Payne Rel ev r; the Licensee has never been cited
for a drug-related offense, a prosti ut on-related offense, or gambling; the
Licensee has never been cited for a io ation regarding wet T-shirt contests;
and the Licensee has never received ny citations regarding alleged liquor law
violations associated with the Payn Re iever.
7. On June 15, 1988, St. Pau1 Police Officers Jensen and Garvey were on
beat patrol duty in a squad car; th y ere in uniform. At approximately 2:40
a.m. , they observed a woman knockin o the main entrance to the Payne
Reliever. The officers parked the qu d car in front of the Payne Reliever
and joined the woman at the front d or At the time of this incident, Ms.
Karen Palm, Mr. Peter Mathew, a Mr. Ti ers, and one or more additional
bartenders or waitresses were in th P yne Reliever; Ms. Palm was performing
the duties of manager, and Mr. Math w as performing the duties of night
janitor. Also in the establishment we e two to four employees of the band
which had just concluded a performa ce while the Payne Reliever was open for
business; these employees were in t e rocess of packing the band's equipment
in order that it could be removed f o the establishment. One of the officers
used a metal flashlight to augment h woman's knocking on the main entrance.
Neither Ms. Palm nor Mr. Mathew he rd he knocking on the main entrance. At
approximately the same time, Mr. M th unlocked the employee entrance to
permit an employee of the band to xi the establishment in order to ready the
band's moving truck, Mr. Mathew ca e own the outside staircase from the
employee entrance to the sidewalk, an at that moment noticed one officer near
� -4-
the main entrance. Mr. Mathew was abl discern that the officer was
engaged in conversation with one or m re ther persons which were outside of
Mr. Mathew's view. The officer saw M . thew, Mr. Mathew and the officer did
not exchange words, and the officer d'd ot make any signal to Mr. Mathew.
Mr. Mathew then re-entered the establ sh ent through the employee entrance,
locked the door, and returned to his ut es of cleaning the "rock bar"; prior
to the arrival of the officers, the " tr p bar" had been cleaned and closed.
A couple of minutes after re-entering th establishment, Mr. Mathew heard a
knock on the employee entrance, the p rs n knocking identified himself as a
police officer, Mr. Mathew granted hi e trance, he and the police officer
walked through the establishment to t e ain entrance, and admitted the second
police officer. No more than five mi ut s elapsed between the time that Mr.
Mathew exited the Payne Reliever thro gh the employee entrance and the time
that the police officers were admitte t the establishment. At the time the
police officers gained admittance, th t bles and bar in the "rock bar" were
littered with beer cans and other no al bar litter, Ms. Palm was in the
office, the Payne Reliever employees e cleaning up, and the band employees
were packing up the band's equipment. here were no unauthorized persons in
the Payne Reliever. No persons in t e ayne Reliever were consuming alcoholic
beverages. The police officers did ot touch the visible beer containers to
determine whether they were cold, th y bserved no unopened liquor or beer
containers, they observed no persons co suming alcoholic beverages, and they
made no arrests and issued no citati ns All the persons in the Payne
Reliever at the time of this inciden w re authorized to be there, and were
performing their ordinary responsibi it es. Mr. Mathew prepared a written
report regarding the incident for Mr W rd.
8. At approximately 12:50 a.m. on June 16, 1988, police officers
Malmberg and Jensen were approaching th main entrance of the Payne Reliever
when they observed Tamia Strand exit'ng the establishment through the main
entrance carrying a can of Special po t beer. They escorted Ms. Strand into
the Payne Reliever, confiscated the be , and asked for identification. Ms.
Strand produced a Minnesota drivers li ense in the name of Patricia Ann
Parisi ; that license described Ms. arisi as five foot, seven inches tall and
one hundred fifty pounds in weight. T e picture on the license portrayed a
female with a round face, and the b rt date on the license made the holder
over twenty-one years of age. At t e ime Ms. Strand produced the Parisi
license, the officers observed a se on license in her wallet and requested
that she produce that license. Ms. St and produced the second license, a
Minnesota drivers license in the na e f Tamia Strand; the birth date on that
license revealed that Ms. Strand wa n t twenty-one years of age. That
license described Ms. Strand as fiv f ot, five inches tall , and approximately
one hundred and five pounds in weig t; she was not pictured as having as round
a face as the picture on the Parisi li ense. The officers cited Ms. Strand
for drinking in public, and underag c nsumption. Prior to the incident with
the officers, at the time Ms. Stran h d first entered the Payne Reliever, Mr.
Mathew saw her, and requested that n mployee of the Payne Reliever check her
identification. Upon the request f hat employee, Ms. Strand produced the
Parisi license, and on the basis o t at license, she was admitted to the
Payne Reliever. The can of Specia E port beer that was confiscated from
Ms. Strand was sold or furnished t M . Strand by the Payne Reliever. The �
officers did not issue a citation o he Payne Reliever. Mr. Mathew prepared
a written report describing the in id nt for Mr. Ward.
9. On the evening of July 17 1 88, the Payne Reliever was conducting a
wet T-shirt contest. It was the p ac ice of Mr. Ward to conduct these
-5-
contests on Sunday evenings for one to tw months each summer. Contestants
were not employees or paid agents of t e ayne Reliever. The contest rules
were explained to each contestant. Th r les required a bikini bottom, and
prohibited G strings and any exposure f enitals or breasts. The contestants
were advised that violation of the rul s ould result in disqualification from
the contest and ejection from the Payn R liever. While on beat patrol on
July 17, 1988, Officer Jensen entered he Payne Reliever at approximately
11 :50 p.m. , and remained in the establ 'sh ent from five to ten minutes. The
wet T-shirt contest was in progress, d he "rock bar" was very crowded. The
contest was being conducted by an ann unc r who was not an employee of the
Licensee; Mr. Mathew was operating th p recorded music equipment, and
selecting songs based upon the reques s f the contestants. Officer Jensen
observed a contestant named Tiffany G de After standing in a child's plastic
wading pool on stage #2 and being soa ed with water, Ms. Gude came down onto
the "rock bar" dance floor. Ms. Gude s ance performance lasted two to four
minutes, the length of one prerecorde s ng. During that performance, Ms.
Gude got down on the dance floor, spr ad her legs apart, began spinning
around, and pulled the G string that he was wearing to one side on two or
three occasions, thereby exposing her ge itals. Officer Jensen observed this
exposure, but issued no citation to t e ayne Reliever, and did not arrest Ms.
Gude; rather, he prepared a report fo t e St. Paul Police Department vice
unit. Mr. Mathew did not observe the ex osure, but he was informed of the
exposure by more than one patron of t e ar. Upon being so informed, he told
Ms. Gude that she had been disqualifi d rom the contest, and she left the
establishment. The amount of time th t lapsed between the time that Mr.
Mathew was advised of the exposure t th time that Ms. Gude left the Payne
Reliever was between five and ten mi ute . Ms. Gude was not an employee or a
paid agent of the Payne Reliever; sh h never been a dancer in the strip
bar. Prior to beginning her perform nc , Ms. Gude had been advised of the
contest rules and signed a statement th t she agreed "to abide by all state
and local laws concerned in the Payn R liever while participating in the wet
T-shirt contest. " Res. Ex. 12. Mr. Ma hew was unaware of any incidents of
exposure of genitals or breasts duri g rior wet T-shirt contests; the Payne
Reliever had never received a crimin 1 itation regarding a wet T-shirt
contest. The week following the Jul 1 , 1988 incident, wet T-shirt contests
were stopped at the Payne Reliever.
10. Dn July 23, 1988, At approx ma ely 1 :05 a.m. , Officer Jensen was
standing across York Avenue from the Pa ne Reliever, and he observed Jerome
Brelje exiting the Pa'yne Reliever th ou h the main entrance carrying a twelve
ounce can of Miller beer. Officer J ns n had not seen Mr. Brelje enter the
Payne Reliever. Officer Jensen issu d citation to Mr. Brelje for drinking
in public. Mr. Brelje acquired the an of beer in the Payne Reliever. No
citation was issued to the Licensee.
11 . On July 24, 1988, after st ndi g on the corner of York Avenue
immediately across from the entranc o the Payne Reliever for ten to fifteen
minutes, Officer Jensen, at approxi at ly 1 :05 a.m. , observed Aaron Bailie
exiting the Payne Reliever through he main entrance carrying a twelve ounce
can of Budweiser beer. Upon furthe i vestigation, Officer Jensen determined
that Mr. Bailie was also carrying t re small bar glasses. Officer Jensen
entered the Payne Reliever, asked M ch el Villarreal , an employee of the Payne
Reliever, whether the glasses were he property of the Payne Reliever and
' whether Mr. Villarreal desired to p es charges for theft against Mr. Bailie.
Mr. Villarreal responded that the g as es were the property of the Payne
6-
Reliever, and that he did wish to pres c arges against Mr. Bailie. Officer
Jensen returned the three glasses to M . illarreal , and Mr. Bailie was cited
for drinking in public and theft of th g asses. Earlier in the evening, Mr.
Villarreal had once or twice warned M . B ilie in the Payne Reliever to
properly comport himself. Mr. Bailie cq ired the twelve ounce can of
Budweiser beer in the Payne Reliever. N citation was issued to the Licensee.
12. On August 15, 1988, Officer al berg was standing in the area of the
"rock bar" at approximately 12:30 a.m. everly Joan Flowers, who was on stage
#2, stood behind a member of the band an placed her hands on his crotch;
Officer Malmberg observed this incide t. James Crea, who was employed as a
bouncer for the Payne Reliever on tha d te, observed Ms. Flowers stand behind
the band member and place her hands o h s shoulders. Mr. Crea approached Ms.
Flowers and directed her to leave the st ge, and she left the stage and went
to the dance floor. Ms. Flowers, who wa wearing a short leather skirt and no
underwear, sat on the observation bar 1 fted her legs in the air, and spread
her legs. At this time, there were a pr ximately one hundred customers
surrounding the observation bar and d nc floor. Peter Mathew, an employee at
the Payne Reliever who was not on dut a the time of the incident, and Kerry
S. Murphy, who was on duty as a bounc r, heard cheering and approached the
rock bar. Based upon his observation of Ms. Flowers on the observation bar,
Mr. Mathew immediately directed Mr. M rp y and Mr. Crea to eject Ms. Flowers
from the Payne Reliever. Mr. Murphy nd Mr. Crea advanced through the
customers located in the standing are , nd when he reached the dance floor,
Mr. Murphy observed Ms. Flowers danci g ith her skirt above her hips, thereby
exposing her genitals and buttocks. r. Murphy immediately picked Ms. Flowers
up, carried her through the Payne Rel 'ev r, and put her down on the sidewalk
in front of the main entrance. The t'me that elapsed between Ms. Flowers'
exposure on the observation bar to he e'ection from the Payne Reliever was
approximately two minutes. Ms. Flow rs as arrested by Officer Malmberg, and
subsequently charged with disorderly on uct. Ms. Flowers had danced in the
strip bar prior to August 15, 1988; he ad never been an employee of the
Payne Reliever, and she was not an e pl ee or paid agent of the Payne
Reliever at the time of the incident. citation was issued to the
Licensee. Mr. Mathew prepared a wri te report regarding the incident for
Mr. Ward.
13. On August 30, 1988 at appro im tely 12:00 a.m. , Officers Malmberg and
Reed were driving on Payne Avenue in a quad car, and observed Russell Lindbom
exiting the Payne Reliever through t e ain entrance carrying a can of
Budweiser beer. The officers stoppe t e squad car, Mr. Lindbom observed
them, Mr. Lindbom dropped the can of be r and stepped on it, and Mr. Lindbom
began to walk away. He was apprehen ed by Officer Reed, the can of beer was
confiscated, and the can was cold. he identification tendered by Mr. Lindbom
to the officers revealed that he was tw nty years old on August 30, 1988; he
was not searched for other forms of de tification. Mr. Lindbom denied
acquiring the beer in the Payne Reli ve , and stated that he had not been
asked for identification. Mr. Lindb m as cited for underage possession of
intoxicating liquor. No citation wa i sued to the Licensee.
14. On September 9, 1988, at ap ro imately 9:00 p.m. , Officers Malmberg
and Reed observed Kent and Christoph r wanson exiting the Payne Reliever
through the main entrance; Kent Swan on was carrying a can of Budweiser beer
and a can of Strohs beer. Kent Swan on was cited for public possession of
intoxicating liquor. No citation w i sued to the Licensee.
15. On October 25, 1988, at appr xi ately 12:05 a.m. Officer Jensen was
standing immediately in front of the ai entrance of the Payne Reliever after
breaking up a fight, when he noticed ic ael Boskovich exit the Payne Reliever
through the main entrance carrying a an of Michelob beer. He directed
Mr. Boskovich to return to the Payne el ever, Mr. Boskovich refused, and
Officer Jensen issued him a citation. M . Boskovich was a member of a band
called "Scarlet"; that band was perfo mi g at the Payne Reliever at the time
of the incident. Mr. Boskovich acqui ed the beer in the Payne Reliever.
After receiving the citation, Mr. Bos ov ch re-entered the Payne Reliever. No
citation was issued to the Licensee.
16. On November 1 , 1988, at appr xi ately 2:25 a.m. , Officer Jensen
checked the employee entrance to the ay e Reliever, and found that the door
was not locked. It was a general pra ti e of Officer Jensen to check the
doors of establishments in the beat p tr 1 area. He entered the Payne
Reliever unannounced, and observed Pe er Mathew and two other persons seated
at bar #2. The two other persons wer e ployees of the band that had
performed that evening at the Payne R li ver. At the time of Officer Jensen's
entrance, an open can of Budweiser be r as on the bar immediately in front of
one of the employees; the can was col . At the same time, an unopened can of
beer was on a bar stool adjacent to e ther employee; that can was very
cold. A plumber was performing work n he building, and was using the back
door as a means of entry and exit. rl 'er in the evening, the unopened can
of beer, which had been placed on ic b ind the bar, was removed by Mr.
Mathew and placed upon the bar. Imm di ely prior to Officer Jensen's
entrance, Mr. Mathew had been perfor in managerial duties in the office of
the Payne Reliever. At the time of fficer Jensen's entrance, the "rock bar"
had been cleaned and there were no b er cans or drink glasses on the tables or
bar #Z• The band employees had been re oving some of the band's equipment,
but were not in the process of remov ng equipment at the time of Officer
Jensen's entrance. Officer Jensen c nf scated the two cans of beer, issued no
citations, and referred the incident to the vice unit. Mr. Mathew prepared a
written report regarding the inciden f r Mr. Ward. As of the date of the
hearing, Mr. Mathew was no longer an em loyee of the Licensee.
17. A Notice of Hearing was iss ed on January 9, 1989, and was served
upon Ward Property Management, Inc. , by mail on that date. City Ex. 1 . That
Notice stated that the hearing would be held on February 13 and 14, 1989. By
agreement of the parties, the hearin d tes were changed to February 14 and
15, 1989. On motion of the City at he hearing, the alleged incident of July
2, 1988 was stricken from the Notice
Based upon the foregoing Finding o Fact, the Administrative Law Judge
makes the following:
CO CL SIONS
1 . The St. Paul City Council nd he Administrative Law Judge have
authority to consider the issues raise in the Notice of Hearing and take
adverse action against the liquor lice se held by the Licensee under Minn.
Stat. §§ 340A.415 and 14.50 (1988) nd Chapters 310 and 409 of the St. Paul
Legislative Code (Leg. Code) .
2. The City has complied with all s bstantive and procedural
requirements of statute and rule gove ni this matter, and the Notice of
Hearing was proper and sufficient.
3. The City has the burden of p oo to establish liquor license
violations for which adverse action i p oposed by a preponderance of the
evidence.
4. Ward Property Management, In . Licensee) is licensed by the City of
St. Paul (City) to sell intoxicating iq ors at the Payne Reliever and is,
therefore, required to comply with pr vi ions of Minn. Stat. §§ 340A.503,
340A.504 (1988) and Leg. Code, Chapte s 45, 246, 310, and 409.
5. The City has proved by a pre on erance of the evidence that on
November 1 , 1988, at approximately 2: 5 .m. , the Licensee displayed or
allowed for the display of intoxicati g iquor upon the licensed premises in
violation of Leg. Code § 409.07(c) .
6. The incidents on June 16, 19 8, July 23, 1988, July 24, 1988, August
30, 1988, September 9, 1988� and Octo er 25, 1988, regarding the removal of
beer from the licensed premises by pa ro s thereof, as set forth in Findings
of Fact Nos. 8, 10, 11 , 13, 14, and 15 spectively, do not constitute a
violation of the statutes and ordina ces set forth in Conclusion of Law No. 4.
7. The City has failed to prov b a preponderance of the evidence that
on June 15, 1988, at approximately 2•45 a.m. , the Licensee allowed the
consumption or display of intoxicati g iquor in the Payne Reliever in "
violation of Leg. Code § 409.07(c) .
8. The City has failed to prov b a preponderance of the evidence that
on June 15, 1988, at approximately 2 40 a.m. , the Licensee failed or refused
to allow police officers prompt admi si n to the licensed premises for
purposes of an inspection in violati n f Leg. Code § 310.12.
9. The City has failed to prov b a preponderance of the evidence that
the Licensee violated the provisions of Leg. Code § 409.09 as a result of the
incidents on July 17, 1988 and Augus 1 , 1988, as set forth in Findings of
Fact Nos. 9 and 12 respectively.
10. The City has proved by a pr po derance of the evidence that on June
16, 1988, the Licensee sold, furnish d, or gave an alcoholic beverage to a
person under 21 years of age in the ay e Reliever. The Licensee has failed
to prove by a preponderance of the id nce that the alcoholic beverage was
sold, furnished, or given to the pe son in justified reliance upon a valid
Minnesota drivers license or Minnes ta identification card.
11 . �The City has failed to pro e y a preponderance of the evidence that
on August 30, 1988, the Licensee so d, furnished, or gave an alcoholic
beverage to a person under 21 years 'ag .
12. Pursuant to Leg. Code § 40 .2 (b)(3) , the presumed penalty for the
sale of an alcoholic beverage to an un erage person is five consecutive days
suspension for the first violation.
9-
13. Pursuant to Leg. Code § 409. 6( )(5) , the presumed penalty for the
consumption or display, or the allowi g f consumption or display of
intoxicating liquor upon the premises of an on-sale establishment at any time
when sale of such liquor is not permi te is three consecutive days suspension
for the first violation.
14. Under Leg. Code § 409.26(a) , de iations from the presumptive
penalties set forth in clause (b) are ap ropriate if substantial and
compelling reasons for doing so exist
15. The Licensee has established su stantial and compelling reasons for a
departure downward f rom the presumpti e ive-day suspension prescribed by Leg.
Code § 409.26(b)(3) .
16. The Licensee has failed to e ta lish any substantial or compelling
reasons for a departure downward fro th presumptive three-day suspension
prescribed by Leg. Code § 409.26(b)(5) , nd the City has not suggested that a
longer suspension is justified.
17. The Licensee is responsible fo the illegal acts of its employees
pursuant to Leg. Code §§ 409.08(5) a d 9.14.
Based upon the foregoing Conclus on , the Administrative Law Judge makes
the following:
RECO EN ATIONS
IT IS HEREBY RECOMMENDED:
(1 ) . That the charge alleging a io ation of the liquor laws on November
1 , 1988 be AFFIRMEO.
(2) . That the charge alleging a io ation of the liquor laws by reason of
the sale of an alcoholic beverage to an underage person on June 16, 1988 be
AFFIRMED.
(3) . That the remaining charges et forth in the Notice of Hearing be
DISMISSED.
(4) . That the Licensee's �on-sal li uor license for the Payne Reliever be
suspended for a period of five cons cu ive days.
Dated this Z � �day of March, 198 .
.` ,',l�.•L�,-t �, . �
` .l, �:-1,,.
� S EP EN D. SWANSON
Administrative Law Judge
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N TI E
Pursuant to Minn. Stat. § 14.62, ubd. 1 (1988) , the City Council is
required to serve its final decision po each party and the Administrative
Law Judge by first class mail .
Reported: Tape Recorded (Tape Nos. 7 34 7136, 7135, 7087, 7065, 7152, 7126) .
MEM RA OUM
The provisions of statute and ordina ce applicable to the instant case may
be summarized as follows. Under Min es a Law, it is unlawful for any person
under the age of 21 years to consume al oholic beverages unless in the
household of the person's parent or ua dian and with the consent of the
parent or guardian, to possess alcoh li beverages with the intent to consume
at a place other than the household f he parent or guardian, or to purchase
or attempt to purchase any alcoholic be erage. Minn. Stat. § 340A.503, subd.
1(2) , subd. 2(2) , subd. 3 (1988) . I i unlawful for any person "to sell ,
barter, furnish, or give alcoholic b ve ages to a person under 21 years of
age, " except that a parent or guardi n ay furnish alcoholic beverages to an
underage person solely for consumpti n n the household of the parent or
guardian. Minn. Stat. § 340A.503, s bd 2(1 ) (1986) . It is unlawful for a
person under the age of 21 years to nt r an on-sale liquor establishment for
the purpose of purchasing or having er ed any alcoholic beverage. Minn.
Stat. § 340A.503, subd. 4 (1988) . "It 's unlawful for a person under the age
of 21 years to claim to be 21 years 1 or older for the purpose of purchasing
alcoholic beverages." Minn. Stat. 3 A.503, subd. 5 (1988) . "Proof of age
for purchasing or consuming alcohol c everages may be established only by a
valid drivers license or Minnesota de tification card, or in the case of a
foreign national by a valid passpor . " Minn. Stat. § 3408.503, subd. 6
(1988) . Pursuant to Minn. Stat. § 40 .415, a licensing authority must
suspend for up to 60 days, revoke, r mpose a civil fine not to exceed $2,000
"for each violation on a finding th t he license or permit holder has failed
to comply with an applicable statut , ule, or ordinance relating to alcoholic
beverages. " Leg. Code §§ 245.01 an 2 6.01 prohibit any person from drinking
intoxicating liquors in any place o en to the public and in certain public
places within the City of St. Paul . L g. Code § 310.12 provides that a
licensed establishment "shall at al t'mes while open to the public or while
being used or occupied for any pur se be open also to inspection and
examination by any police, fire, o h lth officer or any building inspector
of the city, as well as the inspec or." Leg. Code § 409.07(c) provides that
"[n]o person shall consume or disp ay or allow consumption or display of
liquor upon the premises of an on- al licensee at any time when the sale of
such liquor is not permitted." Le . ode § 409.08 provides in pertinent part
as follows:
(2) No liquor shall be so d r furnished for any purpose
whatever to any person un er twenty-one (21 ) years of age
. . . Proof of age for pu ch sing or consuming alcoholic
11-
beverages may be established on y by a valid driver's
license or Minnesota identif ca ion card, or in the case of
a foreign national by a vali p ssport.
* � �
(9) No person shall remain i o loiter in the parking lot
of an on-sale licensee afte th lawful closing hour.
(10) When a licensee is noti ie by the police department
that a parade will be held it in one block of the
licensee's establishment, a 1 eer and all intoxicating
liquor or liquid of any typ s ld during the entire day of
said parade shall be sold o ly in plastic or paper
containers. In addition, u on receiving such notice, the
licensee shall place a pers n t each entrance and each
exit of the establishment a 1 ast one hour prior to the
time of parade, and the lic ns e shall require a person to
remain at those locations u ti one hour after the parade,
to ensure that patrons do n t nter or exit with beer or
intoxicating liquor.
According to Leg. Code § 409.09, the fo lowing acts or conduct on licensed
premises are unlawful :
(3) To encourage or permit an person on the licensed
premises to touch, caress r ondle the breasts, buttock5,
anus or genitals of any ot er person.
� *
(7) To permit any person t r main in or upon the licensed
premises who exposes to pu li view any portion of his or
her genitals or anus.
Leg. Code § 409.12 is identical in ff ct to Minn. Stat. § 340A.415 (1988) .
Under Leg. Code §§ 409.08(5) and 40 .1 , the licensee is made responsible for
any acts of its employees in viola ion of Chapter 409. Leg. Code � 409.26(a)
states that the purpose of § 409.2 is to establish presumed penalties for
license violations; it provides fu th r that the council may deviate from the
presumed penalties in an appropria e ase "where the council finds and
determines that there exist substa ti 1 and compelling reasons making it more
appropriate to do so. " When devia in from the standards, "the council shall
provide written reasons which spec fy why the penalty selected was more
appropriate." Leg. Code § 409.26( ) , in pertinent part, establishes the
following presumed penalties:
(3) Sale of alcoholic bev ra es to under-age person [five
consecutive days suspensi n or first violation].
* �
(5) After hours sale or is lay of alcoholic beverages
[three consecutive days us ension for first violation].
-12-
(6) Refusal to allow city in pe tors or police admission to
inspect premises [five conse ut ve days suspension for
first violation].
� � �
(8) Permit person to leave p em ses with alcoholic
beverages [three consecutive da s suspension for first
violation].
Under Leg. Code § 409.26(d) , in addi io to imposing penalties, the council is
authorized "to impose conditions or ak any other adverse action in .
accordance with law . . . ." In per in nt part, Leg. Code § 310.06(b)
provides that adverse action may be ak n against a licensee for the following
reasons, which are in addition to an o her reason provided by law or in other
Code Chapters:
(6) The licensee or applica t as violated any of the
provisions of these chapter , r of any statute, ordinance
or regulation reasonably re at d to the licensed
activity . . . .
(7) The activities of the 1 'ce see in the license activity
create or have created a s io s danger to the public
health, safety or welfare . . . .
As set forth in the Notice of H aring (City Ex. 1 ), the alleged violations
in the instant case fall into the f 11 wing categories: (1 ) allowing removal
of beer from the license premises; 2) after hours display or consumption of
intoxicating liquor, or allowing pe so s in the premises after hours; (3)
failure or refusal to allow entry b t e police for inspection; (4) permitting
certain prohibited sexual conduct; nd (5) sale or furnishing of intoxicating
liquor to an underage person.
Allowin removal of beer from t e remises Findin s of Fact Nos. 8 10
11 , 13, 14, and 15) .
Subject to certain exceptions, eg. Code §§ 245.01 and 246.01 prohibit the
drinking of intoxicating liquor in ub ic. Those sections do not address the
issue of responsibility for the pr vis'on of intoxicating liquors that are
subsequently consumed in public. he ity Council has addressed the problem
of patrons leaving an establishmen w'th intoxicating liquor through its
enactment of Leg. Code § 409.08(10 . As noted above, that ordinance provides
that upon notification from the po ic department that a parade will occur,
the licensee must station a person at each entrance and exit to ensure that
patrons do not enter or leave with be r or intoxicating liquor. That
ordinance, however, does not apply in the instant case. The City argues that
a violation for permitting a patro t leave a licensed establishment with a
beer can be implied f rom the Code ro isions (1 ) prohibiting consumption in
public (Leg. Code §§ 245.01 and 24 .0 ) , (2) establishing a presumed penalty
for permitting a person to leave t e remises with an alcoholic beverage (Leg.
Code § 409.26(b)(8)) , and (3) allo in adverse action to be taken where the
activities of the licensee "create or have created a serious danger to the
public health, safety, or welfare . . ." (Leg. Code § 310.06(b)(7)) . The
Administrative Law Judge does not ag• e. The Council obviously understood the
-13-
potential problem and chose to addre s he problem in the very limited context
of public parades; it could have ena te a similar general requirement
applicable to all on-sale establishm nt . The presumed penalty is consistent
with the parade provision, and can n t rovide a basis for creating a
violation that would run against the li ensee in the general operation of an
establishment. The ordinance author zi g adverse action against the lice�see
for activities creating a serious da ge to the public health, safety or
welfare is a general provision. How ve , it demands a showing that a licensee
has engaged in a particular "activit " hat constitutes a "serious danger" to
the public health, safety or welfare o construe this provision as including
isolated instances of patrons exitin a establishment with beer, without
more, would impermissibly broaden th s ope of the provision. One could
envision a situation where a license r utinely permitted patrons to leave an
establishment with alcoholic beverag s n order to consume them on the
sidewalk in front of the establishme t; such a practice might constitute the
type of "activity" covered by Leg. C de § 310.06(b)(7) . In the instant case,
however, the evidence establishes th t he licensee took reasonable
precautions, i .e. , a mandatory coat he k and directions to the bouncers to
observe persons leaving the establis me t and prohibit persons from leaving
with beer, to deter patrons from lea in the establishment with beer. In
summary, the Administrative Law Judg c ncludes that the provisions of the
Code applicable to the consumption o i toxicating liquor in public are
directed to the person consuming the li uor and not to the licensee providing
the liquor, and that the instances o p trons leaving the Payne Reliever with
beer do not constitute a violation o a y liquor license statute or
ordinance. See, e•g• , Hansmar Inc. v. Illinois Li uor Control Comm'n, 397
N.E.2d 241 , 244 (I11 . App. 1979) .
After hours dis la or consum ti n f intoxicatin li uor• allowin
ersons in the remises after hours Fi din s of Fact Nos. 7 and 16 .
Leg. Code § 409.07(c) prohibits he consumption or display of intoxicating
liquor at any time when sale is not er itted, and prohibits the licensee from
allowing any such consumption or dis la . Leg. Code § 409.08(9) prohibits any
person from remaining in an on-sale st blishment after the lawful closing
hour. The Administrative Law Judge 'nt rprets § 409.08(9) to include, by
implication, an exception for emplo es and paid agents of a licensee who are
upon the licensed premises in the p fo mance of their regular duties. With
respect to the incident that occurr June 15, 1988 (Finding of Fact No.
7) , all the persons in the Payne Relie r at the time of the incident were
authorized to be there and were per r 'ng their ordinary responsibilities.
There is no evidence in the record st lishing that intoxicating liquors were
either consumed or displayed. Acco di ly, the Administrative Law Judge
concludes that this incident did no c stitute a violation of either Leg.
Code § 409.07(c) or § 409.08(9) . I t second incident on November 1 , 1988
(Finding of Fact No. 16) , the evide ce in the record clearly establishes that
Mr. Mathew, the manager on duty tha night, allowed the display of
intoxicating liquor by placing an o en beer on the bar, and at a minimum, by
not properly supervising the activi ie of the two band employees who were in
the Payne Reliever at the time. Th re ore, the Administrative Law Judge
concludes that this incident consti ut d a violation of Leg. Code
§ 409.07(c) . The Administrative La J dge finds no evidence in the record to
support either an upward or a downw rd departure from the presumed penalty,
- 4-
and because Mr. Mathew, the offendin e ployee, has been separated from his
employment, the Administrative Law J dg declines to recommend the imposition
of any conditions upon the license a a result of this incident.
Failure or refusal to allow entr b olice Findin of Fact No. 7 .
The City alleges that police off'ce s were denied prompt entry to the
Payne Reliever on June 15, 1988. As no ed above, Leg. Code § 310.12 requires
that licensed premises be open for p li e inspection, and the refusal to allow
admission is covered by the presumed pe alty section. Leg. Code
§ 409.26(b)(6) . The Administrative La Judge concurs with the City's position
that implicit in the requirement of n y for inspection is a concomitant
requirement that admission be allow romptly. However, the facts in the
instant case do not support a concl si that prompt admission was denied on
June 15, 1988. The evidence does n t stablish that employees of the Payne
Reliever heard or should have been bl to hear the woman and the police
officer knocking on the main entran e. Moreover, there is no evidence in the
record suggesting that the police o fi er noticed by Mr. Mathew when he exited
through the employee entrance made ny signal to Mr. Mathew that admission by
the police officer was sought. To r. Mathew, the police officer appeared to
be in conversation with other perso s ot within Mr. Mathew's view, and given
the fact that police officer presen e n the corner of Payne Avenue and York
Avenue was a very common occurrence t ere is no basis for a finding that
Mr. Mathew should have realized tha t e police officer was seeking
admission. Once the officer indica ed his desire to be admitted by knocking
on the employee entrance, he was ad it ed immediately. Accordingly, the
Administrative Law Judge concludes ha there was no violation of Leg. Code
§ 310.12.
Prohibited sexual conduct Find n of Fact Nos. 9 and 12 .
The provisions in the Code defi in prohibited sexual conduct are very
precise. Leg. Code § 409.09. In t e ncident that occurred on July 17, 1988
(Finding of Fact No. 9) , Ms. Gude, ho was not an employee or agent of the
licensee, exposed her genitals duri g wet T-shirt contest. That exposure
clearly constituted the performance of an act, as described in Leg. Code
§ 409.09(5)d. That clause, however d es not prohibit the act, but rather
makes unlawful a licensee's conduct in permitting the performance of the act.
Accordingly, the question in the in ta t case is whether the Licensee
permitted Ms. Gude to expose her ge it ls during the wet T-shirt contest. The
evidence in the record indicates th t, notwithstanding the fact that several
wet T-shirt contests had been condu te at the Payne Reliever, no incidents of
exposure had been reported to the L'ce see. Also, the Licensee had adopted a
policy of advising contestants tha ex osure was prohibited, and would lead to
disqualification and ejection from he establishment. Based upon the case of
Sabes v. City of Minneapolis, 120 .W. d 871 , 878, 879 (Minn. 1963) , the
15-
Administrative Law Judge concludes t at he Licensee did not permit the
exposure by Ms. Gude, and that there or , there was no violation of Leg. Code
§ 409.09(5)d.� E•g• , Eas Life Club I c. v. License A eal Comm'n, 310
N.E.2d 705 (I11 . App. 1974) . The se on issue regarding the July 17, 1988
incident is whether the Licensee per it ed Ms. Gude to remain in the Payne
Reliever after the exposure, contrar t the provisions of Leg. Code
§ 409.09(7) . The evidence in the re or establishes that Ms. Gude left the
premises after the conversation with Mr Mathew, during which he advised her
that she had been disqualified from he contest. Therefore, the Licensee did
not permit Ms. Gude to remain in the Pa ne Reliever.
During the incident on August 15 1 88 (Finding of Fact No. 12) ,
Ms. Flowers stood behind a member of th band performing at the Payne Reliever
and placed her hands on his crotch. Ms Flowers was not an employee or agent
of the Licensee. If Ms. Flowers was en ouraged or permitted by the Licensee
to perform that act, a violation of eg Code § 409.09(3) would be
established. Ms. Flower's act was a ra dom act, and there is no evidence in
the record to suggest that the licen ee encouraged or permitted the act. In
fact, upon observing Ms. Flowers sta di g behind the band member, an employee
of the Licensee directed her to leav s age #2. Therefore, the Administrative
Law Judge concludes that there was n v'olation of Leg. Code § 409.09(3) .
Subsequently, Ms. Flowers exposed h g nitals and buttocks on the observation
bar and on the dance floor. For th re sons stated above regarding the July
17, 1988 incident, the Administrati w Judge concludes that the Licensee
did not permit or encourage the exp su in violation of Leg. Code
§ 409.09(5)d. Upon the discovery o t exposure, Ms. Flowers was promptly
ejected from the Payne Reliever. T er fore, there was no violation of Leg.
Code § 409.09(7) . The City argues ha Ms. Flowers should have been ejected
after the act of placing her hands n he crotch of the band member, and that
the Licensee's failure to eject her at that point constitutes a violation.
The Administrative Law Judge disagr es because Leg. Code § 409.09 specifically
limits the instances in which the f il re to eject a person will constitute a
violation to instances involving ex os re. Leg. Code § 409.09(7) . Under Leg.
Code § 409.09(3) , a person observed to ching another's genitals must not be
permitted to continue the activity, bu need not be ejected from the
premises.
Sale or furnishin of intoxicat n li uor to an undera e erson• failure
to re uire ro er identification F nd n s of Fact Nos. 8 and 13 .
On June 16, 1988, Ms. Strand, a te producing a drivers license upon the
request of an employee of the Payne Re iever that showed the holder of the
license to be of legal drinking age, b ught or was furnished a beer in the
��A contrary conclusion would qu're a holding that simply by
conducting a wet T-shirt contest, e icensee would be deemed to permit any
prohibited sexual conduct committe b a contestant on the theory that it was
foreseeable. In the Administrativ L Judge's view, su�ch a holding would go
well beyond the Sabes decision.
16-
Payne Reliever. At the time, Ms. S ra d was underage and the drivers license
was not hers. Ms. Strand was in vi la ion of Minn. Stat. § 340A.503, subds.
3, 4(a) , and 5 (1988) . Minn. Stat. § 40A.503, subd. 2(1 ) (1988) makes it
unlawful for any person "to sell , b rt r, furnish, or give alcoholic beverages
to a person under 21 years of age . ." In the recent case of State v.
Neisen, 415 N.W.2d 326, 329 (Minn. 98 ) , the Supreme Court held that by the
enactment of Minn. Stat. § 340A.501 s bd. 6 (1988) , the Legislature clearly
intended to preserve the "carding" ef nse to an action for unlawful sale of
intoxicating liquor to an underage er on. The Court noted that the reliance
on an identification card must be j st fied, undertaken prudently and
carefully, and in good faith. 415 .W 2d 326, 329. The Court interpreted the
term, "valid drivers license," to m an a license that would convince a careful
and prudent person that it is valid 15 N.W.2d 326, 329. The Licensee has
raised the "carding" defense with r sp ct to this incident, and the burden is
upon the Licensee to establish that it reliance on the drivers license
produced by Ms. Strand was justifie , hat review of the license was
undertaken prudently and carefully, th t the license would have convinced a
careful and prudent person that it as valid, and that the check of Ms.
Strand's identification was in good fa th. The Administrative Law Judge
believes that the Licensee has fail d o meet its burden in this regard. The
evidence clearly establishes that t e heck of Ms. Strand's identification was
undertaken in good faith, and that he drivers license produced by Ms. Stand
appeared, on its face, to be a vali M nnesota drives license. The question
is whether the employee's review of th card was undertaken with sufficient
prudence and care so as to justify el ance on the license. This issue comes
down to the question of a compariso b tween the picture and weight and height
information on the license with the pe son of Ms. Strand. The license
described a person of five feet, se en inches in height and one hundred and
fifty pounds in weight� and picture a female with a round face. At the time
of the incident, Ms. Strand was fiv f ot, five inches tall , weighed
approximately one hundred and five ou ds, and did not have as round a face as
the picture on the license. Both p li e officers indicated that they could
easily determine, on the basis of p ys cal appearance, that Ms. Strand was not
the person pictured and described o t e license, but the police officers came
to this conclusion after having kno le ge of the fact that Ms. Strand was not
the person identified on the licens . Mr. Mathew indicated that Ms. Strand
looked similar to the person pictur d. The discrepancy of two inches in
height is not significant. However b sed upon the discrepancy in weight, and
given the fact that closer attentio w s called for as a result of the
specific instructions given by Mr. at ew to the employee to check Ms.
Strand's identification, the Admini tr tive Law Judge must conclude that the
Licensee has not sustained its burd n f provjng that it acted carefully and
prudently, and has not made out a " ar ing" defense. The Administrative Law
Judge does believe that there are " ub tantial and compelling" reasons under
Leg. Code § 409.26(a) for a reducti n f the presumed penalty from a five-day
to a two-day suspension. First, th L censee has adopted a specific policy of
checking identification. Second, t e eriousness with which the Licensee
enforces this policy is demonstrate b the actions of Mr. Mathew in the
instant case in making sure that Ms S rand's identification was checked.
Third, while the Licensee has not s st ined its burden of showing that its
employee acted with sufficient care an prudence to establish a "carding"
defense, Mr. Mathew and the employe c early made an effort.� In short, this
case should be distinguished from t e ase where no identification is
requested from an underage person t w om intoxicating liquor is sold. The
Administrative Law Judge does not b li ve that any conditions upon the license
should be imposed as a result of th's ncident.
- 7-
On August 30, 1988, Mr. Lindbom e it d the Payne Reliever through the main
entrance carrying a can of beer; he w s nderage at the time. Mr. Lindbom
stated that he had not been asked for id ntification in the Payne Reliever,
and denied acquiring the beer in the ay e Reliever. The can of beer was
cold. As discussed above, the "cardi g" defense is available in an action
against a licensee for sale of intoxi at ng liquor to an underage person under
Minn. Stat. § 340A.503, subd. 2(1) (1 88 . However, although it is unlawful
for an underage person to enter a liq or establishment, it is not a violation
for a licensee to permit an underage e on to enter a liquor establishment.
Minn. Stat. § 340A.503, subd. 4 (198 ) . The question, then, is whether the
Licensee sold, furnished, or gave th b r to Mr. Lindbom in the Payne
Reliever. If so, the Licensee viola ed Minn. Stat. § 340A.503, subd. 2(1 )
(1988) , and Leg. Code § 409.08(2) ; t e icensee has not raised a "carding"
defense with respect to this inciden . Under the Neisen case, the charging
authority has the burden under Minn. St t. § 340A.503, subd. 2(1 ) of proving
that intoxicating liquor was sold, f rn shed, or given to the person and that
the person was underage. State v. N is n, 415 N.W.2d 326, 328 (Minn. 1987) .
The evidence in the record establish s hat it was the Licensee's policy to
check the identification of all pers ns entering the Payne Reliever. The
evidence in the record also establis es that persons often consume beer in
cans in the parking area and in othe a eas adjacent to the Payne Reliever,
that persons regularly attempt to br'ng cans of beer into the Payne Reliever,
and that the cost of a beer in the P yn Reliever is at least twice the cost
of beer in other bars in the area. he e is no evidence in the record to
place Mr. Lindbom in either the "st ip ar" or the "rock bar," or anywhere
within the Payne Reliever for a spe ifi d period of time. Given these facts,
the Administrative Law Judge declin s find, based upon the sole fact that
Mr. Lindbom was observed exiting fr m he main entrance with a beer, that that
beer was sold, furnished, or given o im by the Licensee. Therefore, the
Administrative Law Judge concludes ha the City has not met its burden of
establishing an underage sale in th s nstance. ,
S. .S.
18-
. � �-�-� �"X . 1 � ,. �I a I — 3 � � 3 - G� � 5 �9���
� �
,
��• a, CITY OF SAINT PAUL
S��
:� '�t �►`� OFFICE OF 7HE CITY ATTORNEY
� �; ���
� unu�iuu ,:
''h+ "" 10° �� N �� 1 ��, EDWARD P. SFh�f�R, CITY ATTORNEY
.,. ,._ �.
,,
'�� �••• ' � 647 City Hall, Saint Paul,Minnesota 55102
�.���````� R
�� 612-258-512�
GEORGE LATIMER
MAYOR � �f'��^�
s
? � �r�
�' �� p �,
January 9, 1989 � ����°
�. � ���
Mr. Richard C. Ward NOTICE OF HEARING
���
Ward Property Management, Inc.
899 Payne Avenue
St. Paul , MN 55105
RE : Payne Reliever
Dear Mr. Ward,
This is to notify you that a he ring will be held concerning the
licensed premises stated abo e t the following time, date and
place :
Date : February 1 d 14, 1989
Time . 9 : 00 a.m.
Place : Room 1503, C ' ty Hall Annex
25 West Fo r h Street
St. Paul , N 55102
The judge will be an Admini tr tive Law Judge from the State of
Minnesota Office of Adminis ra ive Hearings : �
Name : Mr. S ep en D. Swanson
Fifth F1 or - Flour Exchange Building
310 F ur h Avenue South
Minne po is , MN 55415
Telephone : 341-7 0
The Council of the City of a' t Paul has the authority to provide
for hearings concerning lic n ed premises , and for action against
such licenses , under Chapte 10, including sections 310.05 and
310.06 , of the Saint Paul L g' slative Code. In the case of licen-
ses for intoxicating and no - ntoxicating liquor, authority is
also conveyed by section 3 R 415 of the Minnesota Statutes.
Evidence will be presented to the judge which may lead to adverse
action against the license or licenseholder as follows :
l . Allowing removal of bee f om the premises to the detriment of
the public health safet o welfare. This also permits violat-
ion of Chapters 245.01 nd 246.01 of the St. Paul Legislative
Code.
The dates involved in t i allegation are 6/16/88 , 7/2/88 .
7/23/88 , 7/24/88, 8/30/ 8 , 9/9/88 and 10/25/88 .
, A ` Pag
2. After hours display or cons p ion of intoxicating liquor or
non-intoxicating malt liquo , r allowing persons in the prem-
ises after hours. The dates in olved in this allegation are
June 15, 1988 and November , 988 .
3. Failure or refusal to allow pr mpt entry by the police for ins-
pection. The date of this 11 gation is June 15 , 1988 .
4. Permitting a person to care s or fondle the genitals of another,
or to permit a female to di p ay her pubic hair, anus , vulva or
genitals . Also permitting a p rson to stay on the premises who
exposes to public view her e itals. The dates supporting this
allegation are July 17 , 19 9 nd August 15 , 1989.
5. Sale or furnishing of into ic ting liquor or non-intoxicating
malt liquor to a person un er the age of 21 , or failure to require
proper idenitification. T e ates supporting this allegation are
June 16 and August 30, 198 .
You have the right to be repr s ted by an attorney before and
during the hearing if you so h ose, or you can represent yourself.
You may also have a person of y ur choice represent you, to the
extent not prohibited as unau h rized practice of law.
The hearing will be conducte i accordance with the requirements
of sections 14. 57 to 14.62 o t e Minnesota Statutes , and such parts
of the procedures under sect' on 310.05 of the Saint Paul Legislat-
ive Code as may be applicabl .
At hearing, the Administrati e aw Judge will have all parties
identify themselves for the ec rd. Then the City will present
its witnesses and evidence , a of whom the licensee or attorney
may cross-examine. The lice s e may then offer in rebuttal any
witnesses or evidence it may w' th to present, each of whom the City
attorney may cross-examine. T e Administrative Law Judge may, in
addition, hear relevant and a erial testimony from persons not
presented as witnesses who av a substantial interest in the out-
come of the proceeding; for ex mple , the owners or occupants of
property located in close p ox mity to the licensed premises may
have substantial interest i t e outcome of the proceeding. Con-
cluding arguments may be ma e y the parties . Following the hearing
the Judge will prepare Find ng of Fact, Conclusions of Law, and a
specific recommendation for ac ion to be taken.
You should bring to the hea i g all documents , records and witn-
nesses you will or may need t support your position. Subpoenas
may be available to compel h attendance of witnesses or the prod-
uction of documents in conf r ity with Minnesota Rules , part
1400. 7000.
If you think that this mat er can be resolved or settled without a
formal hearing, please con ac or have your attorney contact the
undersigned. If a stipula io or agreement can be reached as to the
. ' P ge 3 4��' �" �`�
,. : �
facts, that stipulation will be presented to the Administrative
Law Judge for incorporation nt his or her recommendation for
Council action.
If you fail to appear at the he ring, the allegations against
you which have been stated e rl ' er in this notice may be taken
as true and your ability to h lenge them forfeited. If non-
public data is received into e idence at the hearing, it may
become public unless objecti n is made and relief requested under
Minnesota Statutes , section 4.60, subdivision 2.
Very truly yours ,
l� 1
�
LV'�.y`'�'�
Thomas J . eyandt
Assistant City Attorney
(612) 298 5121 '
Attny. Reg. No. 116336
TJW/acp
CC : Joseph F . Carchedi , Lic ns Inspector
Lt. Donald Winger, Vice Un t •
Albert B. Olson, City C er �
Lt. Donald Trooien, Eas T am Office
S. Mark Vaught
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� THE PA E RELIEVER
899 NE AVENUE
ST. P U , MN. 55101
, B NCERS`
Make sure ell patrons are eccompant d by a beverage . '
Always keep an eye out for troubl . Prevention is better than cure . ;
Bouncers are hTred to give securl y and safety to empioyees E customers .
Check all ID' s of anyone who look under 25 . MTnnesota ID only .
Do not allow admission of anyone ho appears to be tntoxicated .
Restrtct consumption to customers wh may be intoxicated . Teli bartender .
Keep work areas , outstde areas , a d bathrooms clean and free of debris .
Retrieve beer � ice, etc . when req ested by bartenders .
Make rounds tn bar , checkTng for ru s , weapons , or unauthorized drinks •
Do not allow loTtering tn the hal s r by the entrances , insTde •S out .
Keep adequate space in atsles for fi e extts and waitress access . _
Greet customers , smTle , be polite w Icome them . "Be courteous ! "
When the customer � eaves , wish th m ood-bye and "come again" .
Report ali Tncidents of foul play f ghts , or rule infractions to office .
Fights & other maJor incidents re ul e a complete report with wTtnesses .
Protect dancers , employees , and c st mers from any sexuai harrassment .
Dress neatly 3 clean . Always sta w II -groomed . Act professionally.
Always mainta ( n your composure. ea e bad attitudes at home!
No employees are to be in the bar af er 1 : 30 A .M.
If the bar is tull , begin to clea a I : 00 A.M. Otherwtse, 1 : 05 A.M.
IN CASE 0 TROUBLE
We don ' t start trouble. Your Job is o keep trouble away trom the barl
Avold physical contact whenever posstble , especlally around other peopte .
If trouble looks unavoidable , call P LICE. That Is their Job .
Restraint d eviction is necessary nly when all attempts to talk the guy
out fail . Only enough force t vict him/ her is allowed .
You are not allowed to strtke some n unless it fs self-defense and other
methods of restraint have failed . Never Intend to try to hurt someone .
Don ' t allow gang-beatings , kicking or hitting when down , or continuing to
beat a person when they cease to b a ressive .
No violence is allowed for mere ob ce e gestures to you , beTng swore at ,
being loud , excessive drinking , or ev n destruction ot property . Howaver ,
this final situation can require r st aint to hold them unttl polTce arr-
ive . Non-vlolent acts cannot be a te upon with vlolence !
Trouble outside the bar is for the PO ICE ( 911 ) . However , pursesnatching ,
beattng , or rape, etc . would warra t he bouncer to take civic duty to
heart , acting on their own behalf o top the illegal activ ( ty .
When removing a patron trom the ba , eep him from harm , i .e . don ' t open
the door with his/her head , or oth r uffian tactics .
Everyone gets a Iittle rowdy somet me , so give a benefit of a doubt . A
very good customer may have made a mi take . We still want his business !
So try to be as gentle, polite and sa e as the situation warrants .
GENERA �ULES:
Make sure all patrons have a beverage - MINIMUM BEVERAGE RULE both barsi
After hours anyone waiting for you wt I watt outside .
No drinking , playTng games , leaving , r dancing when you are punched In !
No makTng personal phone calls or ust g house phone for calls .
No drinks �re allowed to pass from h band bar to the Rec Room .
Emptoyees do not have a "guest Iist ' t the door . Everyone pays cover .
Check the schedule Thursday for the n xt week ' s starting bouncers .
Let the office know a week in adv nce if you can ' t work the next week .
if you ' re lll the day you ' re to w rk , you must call before noonl
You must punch in and out on the t ( e clock . No one can do tt for youl
Cover drops to E2 at mtdnight , S1 t 12 : 30 , and at 12 : 45 , no one is let
in .
��� �� `�H E
PA E REL1
EVER
899 P Y E AVENUE
ST. PA L MN. 55101
WAIT RS�NS
Minimum Beverage rule is always in eff ct for both bars !
Frequently ask customers if they nee rinks if beer low or ice in glass .
Rotate around pool tables 8 pin ball to supply drinks to customers .
Know your prices ! Stay out in your d si nated station .
Use your tray to carry drinks .
Bus your tables-clean ash trays-pick up beer cans/giasse� when not busy .
WHEN NOT BUSY
Wipe down games , mirrors .
Wash strawholders , sinks .
Clean fruit trays .
Wash bar toweis at beginning of shift
AT ENO OF NIGHT
Wash down work station .
Restock straws and napkins .
Pick up ash trays and wash .
Wipe down tabies , chairs , d booths .
Soak pop guns on Mon . , Wed . , 8 Fri .
Clean dressing room
GElVERAL RULES
Don ' t leave wet bar towels laying aroun
Always keep an eye out for trouble - co mu icate with bouncer/ bartender .
Everyone must be out of the bar by 1 : 30 A . . !
No crushed beer cans down chute !
Check ID ' s ! As you serve them .
No drinking , playing games , leaving buil i g , or sittfng down on the job !
After hours , anyone waiting for you will wait outside !
No personai phone calls or using house p on for calls .
No beer or drtnk glasses , or other items ar to be taken out of the bar .
Empioyses do not have a "guest list" at he door .
Check the schedule on Thursday for the n xt week ' s starting waitress ' .
Let the office know if you can ' t work a cer a ( n day for the next �reek .
If you are ili the day you ' re scheduled , o must notify office by noon !
You must punch time clock in and outl No n can do it for you .
� -� � THE PA E RELIEVER ��' ���
_ 899 A NE AVENUE
ST. P U , MN. 55101
BEVE A E SEf;VERS
Minimum beverage rule is always n ffect for both bars !
Work off your own till only .
Always use shot glass for pour d in s ! Non-compliance will mean non-jobS
Check beercan bags in basement dail before your shift .
Day bartenders wash coffee pot an irty cups by hand .
Check bad-check list before cashi g any checks . Initiaf in upper left .
If it comes back , it could c me out of your pay .
Don ' t st ( ck any item in the ice b n .
Drsss neat 8 clean . Be polite an a t professionally .
No payouts from tiil - Only refun s or the games .
Sign tn and out on till tape ---till count , date , time , initials , till �
WHEN NOT BUSY
Wipe down bar , empty ash trays , cl an sinks , liquor racks , other items .
Cooler is cleaned first Saturday n gh of the month " after hours"
Sunday- start bartender ( both bars ) sh uld start one hour prior to • opening
in order to flush ice bins , clea giass washer , ciean pizza oven ,
polish bar , and replenish drink lasses .
Stock beer to the top . Leave space t top by the fans .
Stock food and juice items only on h top shelf of the small cooler .
Throw away old fruit . it would spo i the good fruit .
Turn off glass washer at end of nig t .
Last call is at 12 : 55 A . M . for less th n 200 people . 12 : 50 A . M. for over .
Know your prices !
GENERAL RULES:
Always keep an eye out for trouble - o municate with the bouncers .
Everyone ( employees also) must be out o bar by 1 : 30 A . M . !
Check ID ' s as you serve them .
No drinking , playing games , leaving , an ing , or sitting down on the job .
After hours , anyone watting for you w II wait outside !
No personal phone calls or using hous p one for calis .
No baar or drink glasses , or other it ms are to be taken out of bar .
Employaes do not have a " guest Iist" at he door .
Check the schedule on Thursday for the n xt week ' s starting bartenders .
Lst the office know if you can ' t work ertaln day for the next week .
If you ' re ill the day you ' re schedul d , you must nottfy office by noon !
You must punch time clock in and out . No one can do it tor you ! •
Use politeness on phone . Be pleasant nd enthusiastic .
-�� IL r '�,'�'��
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STATE O I N N ESOTA � '
OFFICE OF ADM NIS RATIVE HEARINGS
FIFTH FLOOR,FL UR XCHANGE BUILDING
310 FOUR H A ENUE SOUTH
MINNEAPO S,M NESOTA 55415
(6 2)3 -7600
March 28 1988
Albert B. Olson
City Clerk
386 City Hall
St. Paul, Minnesota 55102
Re: In the Matter of Alleged Liq or License Violations by Ward Property
Management, Inc. d/b/a Payne Re iever; OAH Docket No. 54-2101-3223-6
Enclosed and served upon you by m il please find the Findings of Fact,
Conclusions and Recommendation of the A inistrative Law Judge in the
above-entitled matter. I also enclos t e official record, and I am closing
r
our file in this matter.
Yours very truly,
��;.,�' `�.M �' ,�V✓vlH(�O r/`.�
STEPHEN D. SWANSON
Administrative Law Judge
Telephone: 612/341-7604
SDS:plp
Enclosure
cc: Thomas J. Weyandt
S. Mark Vaught
AN EQUAL O PO TUNITY EMPLOYER
� , � � �y-����'
STATE OF MINNESOTA) 54- 2101-3223-6
)ss.
COUNTY OF HENNEPIN)
AFFIDAVIT OF S RV CE BY U.S. MAIL
Paige l. Purcell , being first duly s orn, hereby deposes and says that on
the 2gth day of r�arch � 1989, at the City of Minneapolis� county and
state aforementioned, she served the tt ched Findings of Fact,
Conclusions and Recommendation o the Administrative Law
Judge
by depositing in the United States ma l t said City of Minneapolis, a true
and correct copy thereof, properly en el ped, with first class postage
prepaid, and addressed to the followi g ndividual/individuals.
Thomas J. Weyandt
Assistant City Attorney
City of St . Paul
647 City Iiall
St. Paul , MN 55102
S . Mark Vaught
Attorney at Law
Suite 800
345 St, Peter Street
St. Paul , D4N 55102
Subscr��ehd and swornM to before me
this day of arch � gg ,
Q U-� �
Notary Public
LA VON REGAN
NOTAflY PUBLIC-MMME80TA
'� HENNEPIN COUNTY
MY COMMI8SION EXPIRES 3301
�� ��-- ���
f ��
s. vAUGx7r /
o ey At Law
ite 800
3 5 Sa t Peter Street
Saint aul, innesota 55102
(612 297-6400
Ap ' 1 1 9, 1 98 9 ���/��'�
�IpR j�l
e�rr�� � �9
Mr. Albert B. Ol son �/Y��
City Clerk
City of Saint Paul
386 City Hall
Saint Paul, Minnesota 55102
RE: In the Matter of A1 eg d Liquor License Violations by
Ward Property Manag e t, Inc. d/b/a Payne Reliever;
OAH Docket No. 54-21 1 3223-6
Dear Mr. Olson:
I represent Ward Property M agement, Inc. , the licensee in the
above-entitled matter. Please c sider this letter as constituting,
on behalf of the licensee, the fi ing of exceptions to Findings of
Fact 8 and 16, Conclusions 5 a d 0, and Recommendations 1 , 2, and
4 of the report of Administrat ve Law Judge Stephen D. Swanson.
SALE OR FURNISHING OF IN XI TING LIQUOR TO AN UNDERAGE
PERSON ON E 16 1988
This incident involves Fi i gs of Fact 8, Conclusion 5, and
Recommendation 1 and 4 of the nistrative Law Judge (ALJ) .
The sole issue presented h r , and the basis upon which the ALJ
made his decision, was whether r ot the review by the licensee of
the false Minesota drivers lice s presented by the underage party
was undertaken with sufficient ar and prudence so as to justify
reliance on the license. The J ound that the review did not justify
such reliance.
In analyzing the facts, th J focussed on the weight discrepancy
between the license and the und a e person, which was forty five
pounds, and upon testimony by t olice officers that the picture
of the person on the license whe ompared to the underage person
made it simple for the officers o etermine that the drivers license
did not belong to the underage p r n.
However, on this latter poi t, the ALJ did admit that the officers
had the benefit of knowing the i en ification was false when they
reached that conclusion. This a i sion alone casts much doubt on
whether the ALJ's conclusion was va id.
.� S
. •
.
Mr. Albert B. Olson
April 19, 1989
Page Two
Additionally, a fact no isclosed in the ALJ's report, is that
at the hearing during cross x ination when asked to estimate the
weight of a selected subject e officer missed by forty pounds
and the other by thirty five
Equally as important wa t e fact that City did not produce
either the false drivers lic s or the underage person at the
hearing so no direct compari n could be made.
Matters of appearance: e ght, hair length, color and style,
etc. , change in the individua ith such regularity and rapidity
that, if as the ALJ suggests, e ery item is required to match per-
fectly, there would never be j stified reliance on a Minnesota
drivers license. Pull out yo r wn drivers license and check to
see if all the information is a urate, including the photograph.
The ALJ acknowledges tha t e licensee took steps to ascertain
the legal status of the under ge person in recommending a downward
revision in the proposed susp s on from two days to five. It is
a very small step from there r the Council to find that the reliance
on the drivers license was ju i ied and assess no penalty at all.
The licensee submits that t e ALJ misanalyzes State v. Neisen
415 N.W.2d 326 (Minn. 1987) . h Court in that case established
what has become known as the c r ing defense. In this case the
licensee carded the underage r n and was presented with a false
drivers license. This is exac 1 the case foreseen by the Court
in Neisen. Under the facts he e, the licensee has met its legal
burden to show justified relia ce and urges upon you the conclusion
that no penalty is appropriate
AFTER HOURS DISPLAY OF IN X CATING LIQUOR ON NOVEMBER 1 1988
This incident involves Fin i gs of Fact 16, Conclusion 8, and
Recomendations 2 and 4 of the J.
It is uncontroverted that n of beer v�as on the bar when the
officers entered at 2:20 a.m. he issue was did that beer constitute
display within the meaning of t e rdinance.
There is no evidence in th r cord that ran=.�f��r-,hours-_party
was taking place in the bar. T estimony indicated ins�ead the
bar manager was doing book work n two band members were tearing
down equipment.
There is no evidence that t e beer was displayed for the purpose
of sale or consumption. In fact s the ALJ's report indicates, the
, ` � �/ - ��f�
.'
Mr. Albert B. Olson
April 19, 1989
Page Three
display was as a result of the ar manager placing the beer there
after removing it from an ice b n hen he emptied the bin after
closing. There was no evidence of consumption or offer for sale.
He simply forgot to remove the ee before commencing his book work.
This is not even remotely i ' lar to a situation where officers
enter an establishment after ho r and find a party in full swing
and it is patently unfair that h' licensee should be subjected
to the same three day suspensio though there was an after hours
party taking place.
If the licensee is guilty f fter hours display in this
instance, then any licensee who n lects to remove a receptacle
from anywhere in its establishm n , no matter how innocent that
failure to remove is, is guilty o after hours display.
It is very difficult to co c ude that where, as here, the
evidence shows that no display o the purpose of sale or consump-
tion took place, the ordinance 'n ended to prohibit such behavior.
What is the wrong?
Ward Property Management, n . has never before, in eleven
years of business, been cited r any liquor law violation. As the
ALJ noted, it runs an establis e t that has firm rules for its
employees about obeying the la t the letter. Few, if any, other
licensees go as far as does th' s ne to enforce the law and prevent
violations on its premises.
The ALJ issued his report in good faith.;' but he simply erred,
as a matter of law, in co3iclud'ng that these two incidents constitute
violations.
I hope the Council will c nc ude that no penalty is appropriate.
Very truly yours,
S. MARR VAUGHT
Attorney at Law
•F�- � � r [J �' �/ V
/ • '�
r� �
S. v uGxT
Attorn At aw
Suit 80
345 Saint eter Street
Saint Paul,M nne ta 55102
(612) 97- 00
A ri l 9 1 9 8 9 ��CFI f���
P �p�
�`�r� 1`���89
Mr. Albert B. Olson ��`;�;�
City Clerk
City of Saint Paul
386 City Hall
Saint Paul, tZinnesota 55102
RE: In the Matter of Alle e Liquor License Violations by
Ward Property Managem n , Inc. d/b/a Payne Reliever;
OAH Docket No. 54-210 - 223-6
\
Dear Mr. Olson:
I represent Ward Property a agement, Inc. , the licensee in the
above-entitled matter. Please o sider this letter as constituting,
on behalf of the licensee, the fi ing of exceptions to Findings of
Fact 8 and 16, Conclusions 5 a d 0, and Recommendations 1 , 2, and
4 of the �eport of Administrat've Law Judge Stephen D. Swanson.
SALE OR FURNISHING OF INT XI TING LIQUOR TO AN UNDERAGE
PERSON ON JU E 16 1988
This incident involves Fi d' gs of Fact 8, Conclusion 5, and
Recommendation 1 and 4 of the d inistrative Law Judge (ALJ) .
The sole issue presented e e, and the basis upon which the ALJ
made his decision, was whether o not the review by the licensee of
the false I�iinesota drivers lic n e presented by the underage party
was undertaken with sufficien c re and prudence so as to justify
reliance on the license. The found that the review did not justify
such reliance.
In analyzing the facts, he ALJ focussed on the weight discrepancy
between the license and the u de age person, which was forty five
pounds, and upon testimony by tw police officers that the picture
of the person on the license he compared to the underage person
made it simple for the office s o determine that the drivers license
did not belong to the underag rson.
However, on this latter o'nt, the ALJ did admit that the officers
had the benefit of knowing th 'dentification was false when they
reached that conclusion. Thi dmission alone casts much doubt on
whether the ALJ' s conclusion a valid.
�.S
' � _ �;�G-- ����
4
Mr. Albert B. Olson
April 19, 1989
Page Two
Additionally, a fact not is losed in the ALJ's report, is that
at the hearing during cross ex mi ation when asked to estimate the
weight of a selected subject, ne officer missed by forty pounds
and the other by thirty five.
Equally as important was he fact that City did not produce
either the false drivers licen e r the underage person at the
hearing so no direct compariso c uld be made.
Matters of appearance: w i t, hair length, color and style,
etc. , change in the individual wi h such regularity and rapidity
that, if as the ALJ suggests, v y item is required to match per-
fectly, there would never be a j tified reliance on a Minnesota
drivers license. Pull out you n drivers license and check to
see if all the information is c rate, including the photograph.
The ALJ acknowledges that t licensee took steps to ascertain
the legal status of the undera e erson in recommending a downward
revision in the proposed suspe s ' n from two days to five. It is
a very small step from there f r the Council to find that the reliance
on the drivers license was jus i ied and assess no penalty at all.
The licensee submits that t e ALJ misanalyzes State v. Neisen
415 N.W.2d 326 (Minn. 1987) . h Court in that case established
what has become known as the c r ing defense. In this case the
licensee carded the underage p r on and was presented with a false
drivers license. This is exac 1 the case foreseen by the Court
in Neisen. Under the facts he e the licensee has met its legal
burden to show justified relia c and urges upon you the conclusion
that no penalty is appropriate
AFTER HOURS DISPLAY OF IN O ICATING LIQUOR ON NOVEMBER 1 1988
This incident involves Fi d'ngs of Fact 16, Conclusion 8, and
Recomendations 2 and 4 of the
It is uncontroverted that a can of beer v�as on the bar when the
officers entered at 2:20 a.m. T e issue was did that beer constitute
display within the meaning of h ordinance.
There is no evidence in e record that �n�.a���r �hours party
was taking place in the bar. h testimony indicated instead the
bar manager was doing book wo nd two band members were tearing
down equipment.
There is no evidence tha t e beer was displayed for the purpose
of sale or consumption. In f t as the ALJ's report indicates, the
,� � ,
. �_ � ��
/
Mr. Albert B. Olson
April 19, 1989
Page Three
display was as a result of the r manager placing the beer there
after removing it from an ice bi hen he emptied the bin after
closing. There was no evidence f consumption or offer for sale.
He simply forgot to remove the b e before commencing his book work.
This is not even remotely s'm' lar to a situation where officers
enter an establishment after hou s and find a party in full swing
and it is patently unfair that t i licensee should be subjected
to the same three day suspension a though there was an after hours
party taking place.
If the licensee is guilty o a ter hours display in this
instance, then any licensee who eg ects to remove a receptacle
from anywhere in its establishme t, no matter how innocent that
failure to remove is, is guilty f fter hours display.
It is very difficult to con lu e that where, as here, the
evidence shows that no display f r he purpose of sale or consump-
tion took place, the ordinance i te ded to prohibit such behavior.
What is the wrong?
Ward Property Management, In . has never before, in eleven
years of business, been cited for a y liquor law violation. As the
ALJ noted, it runs an establishme t that has firm rules for its
employees about obeying the law t he letter. Few, if any, other
licensees go as far as does this n to enforce the law and prevent
violations on its premises.
The ALJ issued his report in g d faith, but he simply erred,
as a matter of law, in coi�cluding th t these two incidents constitute
violations.
I hope the Council will conc ud that no penalty is appropriate.
Very truly yours,
-��;i��%%'6,r!'���------�
S. MARK VAUGHT
Attorney at Law
. a �y' —����'
s����'�. CITY OF SAINT PAUL
�"� �:9
• �r: OFFICE OF 7HE CITY ATTORNEY
@; '� "=
':'•.� uii�lii iil ��
-;. _ EDWARD P. STARR, CITY ATTORNEY
'�`'�fn,,,��,��.��''�` 647 City Hall, Saint Paul,Minnesota 55102
612-298-5121
GEORGE LATIMER
MAYOR
March 6 , 1989
Judge Stephen D. Swanson
Office of Administrative Heari gs
Fifth Floor - Flour Exchange B il ing
310 Fourth Avenue North
Minneapolis , Minnesota 55415
RE : Ward Property Manageme t, Inc . - D.B.A. Payne Reliever
OAH File Number 54-2010 31 3-6
Dear Judge Swanson:
Please accept this letter s the Final Argument and Brief
of the City of Saint Paul .
At the close of the hearin ou asked Mr. Vaught and I to
address how you should resolv f ct disputes for those incidents
which involve interpretatio f the facts , and to secondly
give you advice on the sta d rds that should be applied in
judging the responsibilities o a licensee. I have also added
my observations on what yo should recommend as conditions
on the Payne Reliever lice se , should you find a violation.
Obviously the City 'needs to r e the facts upon which a viola-
tion is claimed by a prepo de ance of the evidence. See In
Re Kaldahl , 418 NW2d 532 Mi n. App. 1985) . You may make
reasonable inferences from t e facts , and base your conclusions
upon those inferences. I b lieve your question concerning
the standards that should be applied in judging a licensee
is therefore directed more at the question of whether or not
the licensee should be hel trictly liable for the actions
of his employees, particu ar y for violations such as the
allowing removal charges wh r the employees are more passive
participants .
Guidance on the issue can be found in Saint Paul Legislative
Code Section 409 . 08. The o ening phrase is "All licensees
hereunder are hereby requir d to observe the following regula-
tions. " This must be co si ered along with Legilative Code
PAGE 2.
Judge Swanson
March 6, 1989
Section 409.08 (5} ; "Every 1 ' censee is hereby made responsible
for the conduct of his pl e of business and required to main-
tain order and sobriety in uc a place of business. "
I believe these two sect ' on set out the law of the case,
and very clearly allow you t make a finding that the alleged
violation, if proven, can b the basis for sanction against
the licensee. From the fl v r of your question, I infer that
you are uncomfortable with su h a strict standard when viewing
the facts of the case. t r all , is it reasonable to find
a violation when one pat on among dozens that are leaving
smuggles a beer out of a b r. Step back and consider several
things.
First, the City of Saint P ul has an ordinance which prohibits
drinking in public , and Off' ce Jensen testified that he spends
some time enforcing that rd'nance regularly. The mischief
that is trying to be stopp d ' s obvious, since it is not very
desirable to have people w lk'ng around residential neighbor-
hoods all hours of the da nd night drinking beer, acting
rowdy and littering the la ds ape with their cans and urine.
The ordinance , and the enfo c ent of it, is a valid exercise
of the police power by the C ' ty
Secondly, the perceived dif ' c lty of enforcement by the Payne
Reliever is self-imposed. T s imony revealed that the business
in the band bar begins sl wl and does not amount to much
until 10: 30 or 11 : 00 p.m. T e policy of reducing the cover
charge at midnight and 12: 30 a.m. only serves to increase
the late hour patronage. T e bands play until 1 :00 a.m. ,
the last legal minute , then th bouncers try to herd the crowd
out by 1 : 15 a.m. It isn' t o erly surprising that a bouncer/
stockboy/janitor/groundskeepe an' t detect every can of beer
a patron wants to remove. Fa ed with 100 to 200 people who
are being run out cattle-li e I doubt that any one person
could find all the beers. Th problem is not with the law,
the problem is the result o anagement decisions that cause
this scene to recurr on a nig tl basis.
The danger faced in doing th pe of analysis you asked about
is the nearly unavoidable bl rr ng between the lines of deter-
mining whether a violation c ured and what the appropriate
sanction ought to be. Th irst is a somewhat mechanical
process , -what is the law, wha re the elements that constitute
� � ��� ���
PAGE 3.
Judge Swanson
March 6, 1989
a violation, and are there fact t at provide by a preponderence
of evidence that a violation oc ured. The harshness of the
result of that finding cannot ade part of the consideration
of the process of dermining if v olation occured.
The question of where the bu d n for enforcement falls was
decided long ago by the Supr me Court in State v Sobelman,
271 NW 484 ( 1937) . There the co r observed:
"If on operating a place w e the vending of intoxi-
cating liquor is the pri a y objective , especially
such as the one operatin y the defendant (where
music , drinking, and dancin evail and where private
profit making is the com el ing motive to make it
attractive to the young) is to be exonerated from
liability because he ha pe s , whether by design
of otherwise , to be absen t times when convenient
to be away, then assuredl he very purpose of the
law is frustrated and ma e for naught. The very
spirit , intent, and purpo e of the law, including
as well the plain letter o it, repel the notion
that any person so conduc 'n his place of business
can escape liability by a se ting himself therefrom
buy leaving his servants an agents in charge to
do as they please to hi inancial advantage. . . "
Later the Court quoted a passa e from Dunnels- "Statutes are
to be so construed as to supp e the mischief and advance
the remedy, to promote rather a defeat the purpose of the
legislature. "
The perceived harshness of this c ncept has long been a part
of the burden placed upon a li uo licensee, and one society
requires that he accept.
Municipal authorities have broa iscretion to determine the
issuance, regulation and revocati f liquor licenses , Hymanson
v City of Saint Paul , 329 NW2d 3 4 ( 1983) , Sabes v City of
Minneapolis , 120 NW2d 871 ( 1963) a d Wajda v City of Minneapolis ,
246 NW2d 455 ( 1976) . The scope o a court ' s review of these
matters is narrow, and should e exercised most cautiously.
Wajda, id.
Thus , the right of the city to o d the licensee accountable
for the violations which occur h le he is off premises is
not really subject of debate.
PAGE 4.
Judge Swanson
March 6, 1989
There is the other possible � s ue , whether the City be required �
to prove actual knowledge of the existence of a particular
violation. Did, for inst n e, the Payne Reliever "allow"
Tamia Strand to leave with a beer, or did it occur without
their knowledge and consent. ince the Payne Reliever created
the atmosphere that causes t ese violations to occur, and
since they are in the posi i n to stop them, they must be
held responsible. The Cit ill concede that there is no
direct evidence that an em lo ee of the Payne Reliever saw
Ms. Strand and consciously d ci ed to allow her to leave with
a beer. What the Payne Reli ve did do however, was to engage
in practices that allowed th iolation to take place. Every
single violation alleged inv 1 es an act that is foreseable ,
illegal , and in fact the sub ec of concern by the management
of the Payne Reliever.
The bouncers and Mr. Ward a 1 stressed that they would not
allow someone to leave with a b er. There was testimony that
Mr. Ward did not like to hav e ployees on the premises after
hours because they would take n drink beers . There is testi-
mony that participants in the w t T-shirt contests were told
about rules regarding nudity and were told they couldn' t
wear G-strings . It is simpl inescapable conclusion that
the control measures were ine fe tive , and this has the same
practical impact as actively al ow�ng the act to occur.
By creating this duty to cont ol the actions of patrons , the
Council has realized that the ' s only one truely effective
means of assuring compliance. S m one who accepts the privilege
of selling intoxicating liquor in Saint Paul is aware of this
responsibility, and as Mr. Wa d testified, is aware of the
consequences of a violation, hi risk is one of the reasons
for the "controls" he put in pl ce. The fact that his controls
have been proven to be ineffe t 've cannot somehow be turned
around to work in his favor. The company cannot complain
for getting burned with a vi a ion after striking a match
in a self constructed powderhous .
The Supreme Court faced the issue i Sabes v City of Minneapolis
120 NW2d 871 ( 1963) . In that s , the licensee faced a com-
plaint of permitting a prosti u to be on his premises.
The Supreme Court analyzed severa o her decisions and concluded
that a licensee could be held "r sp nsible where in the absence
of direct evidence that the d fe dand had knowledge of the
immoral practices on his premis s the illicit commerce was
indulged in so openly and for su length of time that defen-
. . r,�., �'
� /�'_ ��a'
PAGE 5 .
Judge Swanson
March 6 , 1989
dant must have known that t e activity was taking place.
Nor can a licensee plead ign r ce by delegating his responsi-
bilities to an employee . " Sa es id at 878.
Pete Matthews testified that i k Ward had established a policy
requiring that written repo ts be completed for any incident
where there was trouble or w ere a police arrest was made,
and that events such as t o brought forward by the City
would be reported. There a a sign above the front door
prohibiting removal of alcoh 1 rom the premises. The partici-
pants in a wet T-shirt con es were required to sign a form
indicating they would not e p se themselves . Written company
policy prohibited employees f om being on the premises after
1 : 30 a.m. Ward Property Mana e ent, Inc. knew of these problems
and took inadequate steps to prevent the violations. The
alleged violations occured v r a 5 1/2 month period. Mr.
Ward would have you believ h was shocked that we would sit
back and accumulate these c arges , and then overwhelm him
with a machine gun burst f charges in order to assure at
least one violation. Ano he conclusion available is that
the repetitive nature of th iolations is in reality evidence
of his patent disregard of h' s uties.
You also asked Mr . Vaught n I to comment on the hard facts
in dispute and offer view n how they should be resolved.
That is most easily done day by day basis , and that is
the format I will follow.
June 15, 1988
The key facts are whether t eir was proof of a display of
alcoholic beverages , and w et er the delay in allowing police
entry ammounts to a refus l of the right to inspect. The
facts of the 11/1/88 even an easily lead to the inference
that had there not been th elay there would have been proof
of consumption. Ms. Palm a in a closed office, and clearly
Mr. Matthews isn' t overl elievable when questioned about
after hours consumption. T e nly proof of display was provided
by Karen Palm, who testif ed that opened liquor bottles were
still behind the bar and h re was beer in the coolers. In
November, this is the ar a the band roadie supposedly got
a beer from, so the area is not inaccessible. The question
of delay in inspection re o es around whether in fact Peter
Matthews saw the officer n whether it can be inferred that
he knew the officer was se ki g entry. The fact of the ability
to hear knocking at the doo ' s subject to two sets of opinions ,
police yes , empolyees no.
PAGE 6.
Judge Swanson
March 6, 1989
It is within your authori to draw reasonable inferences
from the facts presented, nd only a fair preponderence of
the evidence is necessary to m ke a finding that both claimed
violations occured. You ha e sufficient facts to make such
a finding given the lack of c edibility of witness Matthews.
June 16 , 1988
The Payne Reliever' s defense t the underage sale charge was
a claimed use of a false D. The police officers recorded
height and weight variance cl ar y support their claimed obvious
difference in the ID pictu e. Clearly, the bouncer checked
only the birthdate and not he photograph. Since she got
in far enough to be carded, an given the unwavering testimony
that no one would be allow d in with a beer, and the clear
testimony that Ms . Strand w 1 d out with one , the reasonable
inference that she bought t inside leads to the conclusion
that both claimed violations c ured.
July 17 , 1988
Is it surprising that a tr pper with a G-string on would
expose herself during a wet - hirt contest? Again it violated
the claimed rules of the ba o allow someone with a G-string
on to participate in a con e t. There was no testimony that
anyone attempted to stop he woman during her performance,
and they did not eject her ro the premises after she commited
the act. In fact all the id was disqualify her from the
contest.
As one of the three or ou establishments which has nude
dancing in Saint Paul , th ayne Reliever management should
be especially aware of th requirements of the Legislative
Code with respect to this ty e of conduct. The activity was
obviously illegal , the vio at on was clearly forseeable since
the woman exposed herself fo a living and had part of her
work clothing on when she s arted. Finally, the failure to
� eject her from the premi e clearly violates Section 409.09
(7) of the Legislative C de which makes it a violation to
allow someone who exposed t e elves to remain on the premises.
July 23, 1988
Another incident where a a ron carries out a beer at 1 :05
a.m, during the forced mas odus at closing. Based on argu-
ments previously made, yo ave sufficeint evidence to find
that a violation occured.
. n�' r,
� �- � �
PAGE 7 .
Judge Swanson
March 6, 1989
July 29, 1989
If Mr. Bailie got far enoug n to steal three glasses he
clearly did not bring a beer i , and clearly he brought one
out. Again, the 1 : 05 a.m. exo us is taking place , and provides
sufficient evidence upon which o ind a violation.
August 15, 1988
Again we are asked to believe ' t surprising that an obviously
intoxicated professional strip er would expose herself while
dancing. Ms. Flowers , accor in to the police testimony,
fondled the genitals of a ban ember. She was warned off
the stage by Jim Crea, who sho ld have recognized a vialation
of Section 409.09 (5c) when he aw it, and should have immedi-
ately ejected her from the pr mi es as required by Section
409. 09 (7) of the Legislative Cod .
The nudity violation was proven nd as well the failure to
eject.
August 30 , 1988
Russell Lindbom told the police o fi ers that he was not carded
when he entered, giving rise to a likely inference that he
had entered the premises far en u h to believe that should
have happened. Clearly there is su f' cient evidence to conclude
that once someone gets past the d r eheck he can' t have a
beer from the outside on him. Th nference that Mr. Lindbom
bought a beer at the Payne Relie er and then carried outside
is reasonable.
Officer Jensen provided a very pl u ible explanation for Mr.
Lindbom' s inconsistent statement th t he "wasn' t drinking
in the bar. " It was the officer' s op nion, based on his expe-
rience, that suspects in this sit at' on lie about the issue
of where they purchased the alcohol o as to not cut off future
supplies. It is logical and well w thin the facts to draw
the inference that he bought the beer at the Payne Reliever.
September 9, 1988
The testimony is clear that the t wanson brothers walked
out, and that Kent had two beers . t wasn' t closing time ,
but given the evidence about the mul ip e duties of the bounc-
ers , their absence from the front a 1 area at this time
is not overly surprising. It was bef re the band bar normally
gets busy, and the bouncers very wel ould have been doing
their tasks as stock boys or janitorial w rk.
PAGE 8.
Judge Swanson
March 6, 1989
October 25 , 1988 �
A person playing in a band i ne bar is not likely to go
across the street to another, b y a beer, carrying it back
across the street and then be c ught leaving with the beer
from the first. The only rea on ble conclusion is that Mr.
Boskovich obtained the beer at h Payne Reliever, and walked
outside to see the remains of a fight. The violation was
clearly proven.
November 1 , 1988
Pete Matthews ' claim that the o e ed beer somehow levitated
from the ice box to the top of t e ar is absolutely unbeliev-
able and the quickly created fi m nt of the imagination of
a man placed under oath. Clearl , r. Matthews was extremely
nervous when he testified abou his event, with obvious
reason. He knew Officer Jensen ca ght him smoking a joint
while schmoozing with a roadie o the Austin Healy band.
Clearly Mr. Matthews did not wan have to admit this in
front of Mr. Ward, a judge , or a ssistant City Attorney,
so we got this fable about the myst ri usly appearing beers.
There is very clear evidence pr vi g this violation, and
in fact it provides a basis for sup or ing a finding of viola-
tion on June 15, 1988 since the e timony of Mr. Matthews
is more fiction than fact.
The City of Saint Paul has proven b a fair preponderance
of the evidence sufficient fact for t e judge to find that
all alleged violations occured.
The statutes and ordinances prohibi in the activities are
all very clear , and obviously were no n by Mr. Ward. The
prohibition concerning the removal of a c hol from the premises
is clear from the Legislative Code , an the sign contained
in the photographic exhibits of the r spondent show ample
knowledge of the prohibition.
Three sections of the Legislative Code c n be viewed as prohib-
iting the removal of alcohol from the pr mi es .
The first , and clearest, is the fact at Section 409. 26
(b) (8) makes it a violation by specif in the sanction that
can be imposed for allowing it to occur.
The second is based on the knowledge t at Chapters 245 and
246 make it illegal to have open conta ne s in public , and
a bar which allowed the removal would ondoning, if not
aiding and abetting, such a violation.
� � ��� ����
PAGE 9.
Judge Swanson
March 6, 1989
The third can be found in S tion 310.06 (7) which states
that a basis for adverse a ti n is when "the activities of
the licensee in the licensed p emises create or have created
a serious danger to the pub ic health, safety or welfare. . . "
Since the council has passed a specific ordinance prohibiting
the possession of open cont i rs in public , it clearly is
perceived to be a danger to th p blic health, safety or welfare
to allow violations. An ex r ely proper and logical place
to put the burden of preven i n is upon bars who sell the
products that are prohibited, a d to not find they have such
a burden is contrary to the c ear intent and desire of the
City Council .
Should you recommend a sanc 'o short of revocation of the
license , I ask that you conside ecommending several conditions
be placed on the license, and d sign those conditions to prevent
future violations of the type lleged. Clearly the problems
are created by the managemen w ich places more work on the
bouncers that they can handle as an owner who isn' t on the
premises during the busiest ti e of the day, and has policies
which encourage most patrons t come late in the evening,
stay until the last legal mom n , and then push them out the
doors dumping the problem int e laps of the police. The
following conditions would go f r towards preventing future
violations :
1 ) Require a doorman to be s ationed at all times at the
front double doors , and ot require any other tasks
from this person while the b r is open.
2) Require professional train ng, not OJT, for all employees.
3) Require that all music a d dancing cease at 12 : 30 a.m.
4) Require that last call oc ur at 12: 30 a.m. , and prohibit
the sale of more than o e drink to a patron at last
call .
5) Require that all beer s ld to patrons after midnight
be served only in glasses , w' th no cans or bottles given
to patrons after that time.
6) Prohibit any special pr mo ional activities such as
wet T-shirt contests after 1 : 0 p.m.
PAGE 10.
Judge Swanson
March 6 , 1989
7) Require presence of h owner, or a properly trained
manager who does the 'o of managing and not janitorial
services during the i es from 9 :00 p.m. to closing.
8) Prohibit the presence o anyone on the premises after
1 : 30 a.m. The band an remove their equipment the
morning following thei 1 st performance .
9) Modify any policy whi ncourages late night patronage.
For example, cover c r e should increase late in the
night to keep people w o drink at cheaper bars , get
intoxicated, and then ar ive at the Payne Reliever late
at night to try to find s me action.
Thank you for your conside at 'on of the City' s position on
the matters under review.
Sincerely,
�,� � ,��
�
Thomas J . Weyandt
Assistant City Attorney
License Number 116336
TJW:ar
CC : S. Mark Vaught
• } �qullll
���T' �- CITY OF SAINT PAUL
�~0 ''� OFFICE OF THE CITY ATTORNEY
�o �,.
'�r iiii�i;il ii �_
�;m EDWARD P. STARR, CITY ATTORNEY
'-,, -
��"'uu,',Q°;�,,.`"` 647 City Hall, Saint Paul, Minnesota 55102
612-298-5121
GEORGE LATIMER
MAYOR
March 6 , 1989 �
�
MAR � !�9
Judge Stephen D. Swanson ��T���
Office of Administrative Heari 'gs �,N�
Fifth Floor - Flour Exchange B il ing .�
310 Fourth Avenue North
Minneapolis , Minnesota 55415
RE : Ward Property Managemen , Inc . - D.B.A. Payne Reliever
OAH File Number 54-2010- 12 -6
Dear Judge Swanson:
At the last moment I was able t find an additional authority
regarding the June 16 , 1988 a d August 30, 1988 underage
sale charge and would like o bring it to your attention.
In State v Neisen, 415 NW 2d 32 (Minn. 1987 ) the court held
that proof of an offense w s established by showing that
the alcoholic beverage was s 1 to an under-age person and
that it was not necessary t rove that the defendant knew
that the purchaser was under g . The court then determined
that the only defense avai ab e under the statute was a
"carding" defense . As to that efense , the court found that
the defendant had both the bur e of production and persuasion
and held that : "In a prose u ' on for a liquor sale to an
underage person under Minn. St t. Sec. 340 A. 503 , it is
a defense for the defendant to prove by a preponderence of
the evidence that he or she , i making the sale , relied on
one of the forms of age identi ic tion described in subdivision
6 , and that such reliance was j stified, undertaken prudently
and carefully, and was in good fa th. " IVeisen at 329 (emphasis
supplied) .
The carding defense was used i the June 16 sale to Tamia
Strand. Based on the discr p ncies in height, weight and
appearance it is clear that t e Payne Reliever failed to
act carefully in the matter nd thus a violation can be
found. The only evidence o he record on the August 30 ,
1988 event is that Russel L nd om said he was not carded.
The Payne Reliever failed to m et their burden of proof accord-
ing to lveisen, and therefore a i lation was proven.
- • � �/
Cf� %����`T_�
� �
PAGE 2.
Judge Swanson
March 6 , 1989
Thank you for considering th s and our other letter in this
matter.
Sincerely,
<�1�
l
Thomas J . Weyandt
Assistant City Attorney
License Number 116336
TJW:ar
CC : S . Mark Vaught
� f_���
%
STATE OF MINNESOTA)
)S5.
COUNTY OF RAMSEY ) 5 -2 O 1-3 2 2 3-6
AFFIDAVIT OF P RS NAL SERVICE
Michael Lewis, being first duly sw rn, hereby deposes and says that
on the 2gth day of htarch � 198 , the City of St. Paul , county and
Findir..g of Facts ,
state aforementioned, he served the at ac d
Conclusions and Recommendation o he Administrative Law Judge
upon Albert B . Olson, City Clerk
by personal ly hand to �.or r�...�. ' A���erso �
said Recommendation and Officia ecord
Subscrib�it�nd sworn �� ��fore me
this day of r , 98 .
�d�� � "�
Notary Public �����
u voN �c�w �aR 2 g�
"�ENN� CITY CLEkK
w oo�oN�rw ss«
, h_.. �q_ ���
S. AUGHT
Atto ey t Law
ite 00
345 S t P er Street
Saint Paui Mi esota 55102 ,
(61 )2 -6400
��Vf.r.��� `
����� 719�9
qpNl�l$TRA►TNS .
H�A� �
M rc 6, 1989
Mr. Stephen D. Swanson
State of Minnesota
Office of Administrative He ri gs
5th Floor Flour Exchange Bu 1 ' ng
310 Fourth Avenue South
Minneapolis, MN 55415
Re: Ward Property Manageme t Inc. d/b/a The Payne Reliever
Dear Mr. Swanson:
Enclosed please find e your instruction at the close of
the hearing in the above e i led matter, Respondent 's Memorandum
of Law and Closing Argumen h rein.
Very truly yours,
`'��Z��
. Mark Vau
Attorney at Law
SMV/tar
,� g
. �` . ,
� � ���
RECEIVED
MAR 7 1989
pQ1iAINISTRATNii
i�AR�S
In Re The Matter of:
RESPONDENT'S MEMORANDUM
Ward Property Management, Inc , OF LAW AND CLOSING
d/b/a The Payne Reliever ARGUMENT
STATE EN OF FACTS
Respondent, Ward Proper y anagement, Inc. (Payne Reliever)
is the holder of certain On S le liquor licenses issued by the
City of Saint Paul, Minnes ta a municipal corporation (City)
pursuant to statute and loca o dinances.
On January 9, 1989, The P yne Reliever received a Notice of
Hearing, pursuant to Saint au Legislative Code (Code) §310 and
Minnesota Statute Chapter 3 0 .415, informing it that a hearing
would be held on Febru ry 13 and 14, 1989, before an
Administrative Law Judge i he State of Minnesota Office of
Administrative Hearings at ich hearing evidence was to be
presented which might lead o adverse action against the license
holder.
At the request of Re p dent's counsel, the dates of the
hearing were later changed o February 14 and 15, 1989.
The notice alleged 3 eparate violations of law on ten
separate dates, including:
-1-
.� ,
I. Allowing removal of b e from the licensed premises to the
detriment of public health s fety or welfare on:
A. June 16, 1988
B. June 23, 1988
C. June 24, 1988
D. August 30, 1988
E. September 9, 1988
F. October 25, 1988
II . Permitting a violati of Code �245.01 , which prohibits
drinking in public, on:
A. June 16, 1988
B. June 23, 1988
C. June 24, 1988
D. August 30, 1988
E. September 9, 1988
F. October 25, 1988
III. Permitting a violatio f Code §246 .01, which prohibits
drinking or possession of a c ol on the streets of Saint Paul,
on:
A. June 16, 1988
B. July 23, 1988
C. July 24, 1988
D. August 30, 1988
E. September 9, 1988
F. October 25, 1988
IV. After hours display or on umption of alcohol on:
2-
���
. . , ����'- d� ,
c
A. June 15, 1988
B. November 1, 1988
V. Allowing persons in the 1 censed premises after hours on:
A. June 15, 1988 ,
B. November 1 , 1988
VI . Failure to allow promp ntry by the police for inspection
on:
A. June 15, 1988
VII. Permitting a person t aress or fondle the genitals of
another on:
A. July 17, 1988
B. August 15, 1988
VIII. Permitting a female t display her genitals on:
A. July 17, 1988
B. August 15, 1988
IX. Permitting a person wh d' splays her genitals to remain in
the licensed premises on:
A. July 17, 1988
B. August 15, 1988
X. Sale or furnishing alco ol to one under the age of 21 on:
A. June 16, 1988
B. August 30, 1988
XI . Failure to require pro er identification of one under the
age of 21 on:
A. June 16, 1988
B. August 30, 1988
3-
. , . , ��;'-- �%��
The hearing was dul eld before Stephen D. Swanson,
Administrative Law Judge, o F bruary 14 and 15, 1989 on the 15th
Floor of the Saint Paul City H 11 Annex.
The City presented te ti ony from police officers Charles
Malmberg and Dennis Jensen. he Respondent presented testimony
from Richard Ward, owner o he Payne Reliever and from James
Crea, Kerry Murphy, Karen P lm, Michael Villarreal and Pete
Mathews, all of whom were e 1 yees of The Payne Reliever on the
dates of the alleged violati n .
At the conclusion of te ti ony, the Administrative Law Judge
gave the parties leave to ub it a Memorandum of Law and such
written Closing Argument as e ch party might find appropriate.
This submission results ther fr m.
L GA � � ISSUE
WHAT LEGAL RESPONSIBI T DOES A LICENSEE HA`7E TO
PREVENT VIOLATIONS OF T E W ON THE LICENSED PREMISES?
Minnesota statutes Chap er 340A.501 imposes upon a licensee
general responsibility fo the conduct in the licensed
establishment. Code §409.0 ( 5 contains a similar requirement
that conforms to the lang ag of a now repealed statutory
provision.
4-
Additionally, it appear t be settled law in Minnesota that
the licensee is responsib e for the knowing acts of its
employees. State� vs. Holm�2 5 W 2nd 401 (M�inn. � �1937) .
There is scant case aw interpreting Minnesota statutes
Chapter 340A.501 and its st tu ory precursor, Minnesota statutes
Chapter 340. 14, and appare tl none at all interpreting Code
§409.08( 5) .
Nonetheless, it does no a pear from the case law which does
exist that the statutory s he e of Minnesota statutes 340A.501
was intended to impose stri t liability upon a licensee for all
acts committed by all partie ithin the licensed premises. Such
an interpretation would la e every licensee in constant
violation of the provision, en up the strong possibility of
discriminatory enforcement, a d raise serious due process and
equal protection questions.
The better rule appear t be that an owner of a commercial
establishment is not liable fo the misconduct or negligent acts
of third parties who are n t under his direction or control or
which he could not reas na ly have anticipated or guarded
__ --- ---�_ _ _
against. 62 Am ,7ur 2nd 1�99.
-5-
An excellently reaso ed line of New York cases stands for
the proposition that in o de to find that a licensee permitted
or allowed certain behavio n the licensed premises on the part
of those not its agents r employees, one must find that the
licensee had knowledge of he behavior or the opportunity through
reasonable diligence to c uire knowledge of the behavior.
__ _...-�.- -----.----..-----...__.... .................. .
Mi liaccio vs. O'Connell, 2 � �NE��2nd 914 �(Court�� of� A eals NY
1954} .
In the one clearly rel te Minnesota case, the Supreme Court
found that in order for a 1 c nsee to be found to have permitted
an action by a third party, su ficient to support adverse action
against the license, it mus e found that there was an element
of assent or knowledge of th ctivity complained of without the
taking of any preventive or or ective action. Sabes vs. City of
Minne�a� olis, 120 �NW 2nd $71 Mi n. � 1963 j .
In a narrower sense, wi h pecific reference to the alleged
offense of sale of alcohol t o e under age, it is a defense for
licensee to prove by a prepo de ance of the evidence that there
was reliance on a statutoril andated form of identification,
such as a valid Minnesota dri er license, and that that reliance
was justified, undertaken pr de tly and carefully, and was in
, ... ..._.......... .:. ...... .... ..._ .. ..,. . ,.. _.. _
good faith. State vs . Neisen, 4 5 NW 2nd 3�6 (Minn. 1987) .
6
. � �
In the case before us, it is not sufficient for the City to
prove that violations of the 1 w occurred. It is incumbent upon
the City to prove that the li ensee or its employees committed
such violations, knowingly ss nted to commission of violations
by third parties, or, ha in knowledge of past or current
violations by third parti s, failed to take preventive or
curative action.
The evidence presented c early stands for the proposition
that the City has failed to e t that burden.
Many of the "alleged" i lations simply are not violations
of any of the statutes or r inances sited by the City. With
regard to those that are ar u bly violations, the licensee took
corrective or protective ac io s before the alleged violations,
upon observing the alleged i lations, or after learning of the
alleged violations. It is ha d to imagine a licensee spending
more and doing more to prev n violations than did the licensee
in this case.
Specific analyses reg r ing each alleged violation are
offered below.
7-
. • � � � ��� ��'��
FACTU L DYSPUTES
There appears to be gen ra agreement among the parties as
to what went on during each o the ten incidents about which
testimony was given. Of co r e, there is substantial dispute
about the inferences to be dr w from the testimony.
However, there do appea o be two disputes regarding the
facts; one involving the in i nt of June 15, 1988 ; the other
involving the incident of Aug s 15, 1988.
With regard to the inci en of June 15, 1988, Officer Jensen
testified that he and his pa tn r continued to knock on the front
door of The Payne Reliever nt 1 the doors were opened and they
were admitted. On the other ha d, Pete Mathews testified that he
admitted one police officer hr ugh the back door and then walked
with that officer through h establishment and admitted the
officer's partner through th f ont door.
The incident serves as t basis for the City's allegation
that The Payne Reliever fa led to allow rp -ompt (emphasis
provided) entry by police fo nspection.
-8-
't ' - a
A correct analysis of t e plain wording of the Code
provision in question sho s that the dispute is of no
significance. Code §310.12 s a es that the licensed premises be
open for inspection when occ p' ed. The term "prompt" cloes not
appear in the statutory langu ge.
This is simply one of t e any disingenuous attempts by the
City, through wording of 1 gations, to "amend" statutory
provisions or to "create" t os that do not exist to fit the
facts that do exist.
The Code provision requ re only that the premises be open
for inspection when occupied Both parties testified that the
police were admitted to the s ablishment. Therefore there was
compliance with Code �310 . 12. he point of ingress really is not
relevant.
With regard to the in id nt of August 15, 1988, Officer
Malmberg testified that the e ale, later identified as Beverly
Joan Flowers, stood behind on of the male band members and
reached around and grabbed hi n the area of his crotch. On the
other hand, James Crea testifie that she touched the band member
in the area of his shoulders.
Both Malmberg and r testified that immediately
thereafter, Crea told Flower t get off and stay off the stage.
9-
A correct analysis of the plain wording of the Code
provision in question ho s that the dispute is of no
significance. Code §310. 1 s ates that the licensed premises be
open for inspection when cc pied. The term "prompt" does not
appear in the statutory lan u ge.
This is simply one of th many disingenuous attempts by the
City, through wording of llegations, to "amend" statutory
provisions or to "create" th se that do not exist to fit the
facts that do exist.
The Code provision re i es only that the premises be open
for inspection when occupi d. Both parties testified that the
police were admitted to th e tablishment. Therefore there was
compliance with Code §310 . 1 . The point of ingress really is not
relevant.
With regard to the i ci ent of August 15, 1988, Officer
Malmberg testified that the f male, later identified as Beverly
Joan Flowers, stood behind o e of the male band members and
reached around and grabbed h m in the area of his crotch. On the
other hand, James Crea testi ie that she touched the band member
in the area of his shoulders
Both Malmberg and r a testified that immediately
thereafter, Crea told Flower t get off and stay off the stage.
9-
Again the factual is ute is not determinative. The
testimony indicated that F1 w rs was a patron not an agent of The
Payne Reliever. Crea's act 'o s in telling her to exit the stage,
which she did, were the pr p r response by the establishment to
her behavior.
A GOMENT
Some general observat on are in order before analysis of
the specific incidents and h rges.
The uncontroverted tes i ony at the hearing established the
following facts:
I . That The Payne Relie er during the ten years that the
current licensee has been he owner, has never been ticketed or
ever before had any manne f adversary proceedings commenced
against it for any alleged v olation of Code §245.01 , �246 .01 ,
�310 or �409 or Minnesota s at tes Chapter 340A.
II. That with the excep i n of those alleged violations
involving interaction betwe n the police and employees of the
licensee, the licensee r ce 'ved no notice of the alleged
violations until mid-Decembe , 1988 , some one and one half to six
months after the incidents r ortedly encompassing the alleged
violations . The burden t this time lag placed upon the
Respondent in defending ag in t some of the charges is quite
clear.
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III . All of the alleged of en es which could be traced to a
specific part of the licensed p emises took place within the Rock
Bar. None took place within h Strip Bar.
IV. The licensee, both prio o and subsequent to learning of
the alleged violations, took s bstantial steps, unsolicited by
the City, to guard agains iolations of the law by both
employees and patrons and oth r third parties, including:
A. Developing a speci ic and extensive code of rules for
all employees (Respondent's E h bits 5, 6 and 7) which rules are
discussed with employees be or they begin work at The Payne
Reliever. Each employee is re uired to initial a copy of the
rules, indicating each has re d nd understands them.
B. Posting notices i rominent places throughout the
establishment, and particul r y near the exists, notifying
patrons that no beverages are 'to be removed from the premises and
informing patrons of the aw regarding legal drinking age
(Respondent's Exhibits 2, 3 n 4) . Testimony indicated that
such notices were posted prio t the incidents complained of and
in places where it would be v' r ually impossible for a departing
patron not to see them.
C. Posting a letter fr m the police vice squad regarding
legal drinking age near the e tr nce as a notice to employees.
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D. Hiring at least wo security people on week nights and _
three on weekends ( increas d o three on week nights and four on
weekends since receiving t e notice for the hearing ) and
establishing a post for th m directly inside the outer doors in
an attempt to minimize remo a of alcohol from the premises.
E. Establishing a p li y of "carding" patrons upon their
entry to the establishment o ascertain legal age.
F. Turning back tho e patrons who attempt to enter the
establishment with alcoho i beverages unless those patrons
surrender the beverages. e timony indicated that three to ten
such patrons were denied en r ce daily.
G. Establishing a m nd tory coat check during the colder
months in an attempt to m' n mize secretion of alcohol on the
persons of departing patron .
H. Developing a set of rules for participants in wet T-
shirt contests (Respondent' xhibit 12) which must be read and
signed before participation is allowed and by enforcing the rules
against any violators.
I . By participating in, along with other liquor licensees,
a comprehensive program run b a fee for service outside agency
to train employees.
_ _
I. Allowin �removal � eer from the licensed � remises to
the� 'detriment � o � �he � � ublic� � liea�th�, �safet , and
welfare.
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This is one of those of e ses "created" by the City in its
hearing notice. There is n such prohibition specifically
outlined anywhere within the c nfines of Code �245.01, �246 .01,
§310 or §409 or Minnesota ta utes Chapter 340A. The offense
simply does not exist. The n y mention of the activity is the
presumptive penalty in the m tr x contained in Code �409 .26 .
However, ever other ff nse listed in the matrix is
prohibited by a specific ec ion of state statute or local
ordinance.
For whatever reason the City has not chosen to specifically
proscribe the removal of bee rom a licensed premises throuyh a
specific statutory provisio nd ought not to be allowed to
create the alleged violation no .
II. Periiiit�tin � �a viola io of� Code ��2��5.�6�1.
This is another "creat d" offense. Code �245.01 prohibits
any individual from drinkin ' n public. No where within the
boundaries of that section i t ere any mention of the offense of
"permitting" another to viol te the provision.
III . Permittin a eiola i ��of Code ��246.0�1 .
This is the third in ine of "created" offenses. Code
§246 .01 prohibits any indiv du 1 from drinking or possession of
alcohol on the streets of Sa n Paul . Again, no where within the
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boundaries of that section r nywhere else for that matter, is
there any mention of the f ense of "permitting" another to
violate Code §246.01.
The proceeding three ty e of violations, encompassing 18 of
the possible 33 violations, si ply do not exist. Requiring the
Respondent to defend itsel gainst these phantom violations
comes perilously close to n tituting bad faith on the City 's
part. At the least, a re po dent cannot know what manner of
behavior is supposedly proh'bi ed if the City cannot point to a
specific statutory provision p ohibiting it.
IV. Sale or furnishin lc hol to one under the a e of 21 .
V. Failure to re uire ro er identification of one under
the age of 21 .
Though listed in the not 'ce of hearing as alternative offenses,
the above two categories con ti ute but one type of offense and the
defense thereto. Pursuant t ' nnesota Statutes Chapter 340A. 503
Subd. 2 ( 1 ) one may not sell r urnish alcohol to one under 21 .
On the other hand, :�Iinnesota St tutes CHapter 340A.503 Subd. 6,
as interpreted in State v. N is n, supra, establishes a defense to
selling or furnishing alcoho t one under 21 through justifiable
reliance on a Minnesota driv rs license.
A. Incident of Jun 16 1988
Alleged violati n : 1 ) Allowing removal
2 ) Underage sale
The testimony about t is incident showed that Tamia Strand,
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who was apparently underage as in fact carded upon her entry into
the Payne Reliever. She ha her possession a valid Minnesota
drivers license in the name o Patricia Ann Parisi, which indicated
that Parisi was of legal ag .
Upon direct examination bo h Officers Malmberg and Jensen made
much of the fact that there is a difference in the vital statistics
between Strand and Parisi 's dr vers license of two inches in height
and forty five pounds in we ' h . Yet, under cross examination,
neither officer, both of who re supposedly trained observers, could
estimate the weight of a sel c ed subject within thirty five pounds,
nor could Officer Malmberg e t'mate the height of a selected subject
within two inches.
Additionally, neither of i r was able to offer any evidence that
Strand had purchased the bee t ey observed from the Payne Reliever.
� Nor could either officer en that had Strand been denied entry to
the Payne Reliever because s e ttempted to enter with the beer each
would have seen exactly what he did observe as she exited the bar.
Neither officer was able to offer any evidence that the licensee
or any of its employees obser e , or in any way had knowledge that
Strand removed the alcohol fr m the premises, nor that they allowed
such removal.
The testimony indicated t a persons carrying beverages from
other locations are denied en r to the Payne Reliever between three
and ten times each day. Ther fo e between 450 and 1 , 500 potential
patrons would have been denie e try for that reason during the five
months covered by the inciden s n question in the hearing.
1 -
Given the testimony of the offic s regarding police presence
in the area, it is not unusual that h police would have observed
and written reports about seven of ho e incidents.
Based on the evidence and the aw the proper conclusion is that
the licensee properly, justifiably a d in good faith relied on the
Minnesota drivers license in Stra d' possession and that no removal
occured because there is no such vi lation.
In the alternative, there is n evidence that Strand purchased
the beer from the Paye Reliever a the evidence provided by the
officers is as consistent with e having been turned away at the
door or having secretly remove he alcohol as it is that she was
allowed to remove alcohol fro e premises.
B. Incident of Jul 1988
Alleged violat ' on 1 ) Allowing removal
The testimony abo his incident showed the police officers
to be across York from the P ne Reliever watching an unruly group
of bikers in front of Chu k' Bar. Officer Jensen testified that
he observed Jerome Brelj e it the Payne Reliever carrying a car of
beer.
On cross examinatio , fficer Jensen was unable to offer any
evidence that Brelje h btained the beer in the Payne Reliever, or
that any of its employ e or the licensee had observed or had knowledge
that Brelje removed a co ol from the premises, or that they allowed
such a removal
Nor was Officer e sen able to state that had Brelje been denied
� entry to the bar be a e he had tried to bring the beer in with him
that the officer w ul have observed anything differently than he
did observe.
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. � � � - �'�� �`�� .
Based on the evidence a d the law, the proper conclusion is that
no offense occured because h re is no prohibition on removal.
In the alternative, th e is no evidence that Brelje obtained
the beer from the Payne Re ie er and the evidence provided by Officer
Jensen is as consistent wi h relje having been turned away at the
door for trying to bring a be r into the bar or having secretly
removed the alcohol as it ' s hat he was allowed to remove alcohol
from the premises.
C. Incident of J 1 24 1988
Alleged viola io : 1 ) Allowing removal
The testimony abo t his incident demonstrated that Officer
Jensen was across York fro e Payne Reliever near Chuck' s Bar when
he observed Aaron Baillie x ' t the Payne Reliever carrying a can of
beer and with three large u ges in his pants which turned out to
be eight ounce bar glasses The glasses were returned to the bar
through employee Michael V' 1 arreal and Baillie was ticketed for
thef t.
On cross examination, f icer Jensen was unable to provide any
evidence that Baillie had ob ained the beer in the Payne Reliever,
or that the licensee or a y f its employees observed or had any
knowledge that Baillie re ov d alcohol from the premises, or that
they allowed him to do so
The evidence is compl te y inconsistent with a finding that the
Payen Reliever allowed re ov 1. Why would the licensee or its
employees also allow remo al of the glasses stolen from the bar?
Based on the evidence a the law, the proper conclusion is that
no offense occured becaus here is no prohibition on :removal.
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In the alternative, it is i logical to conclude that the bar
or its employees would allow th ft of glasses.
D. Incident of Au st 30 1988
Alleged violati ns: 1 ) Allowing removal
2 ) Underage sale
The testimony about t is incident demonstrated that Russell
Lindbom, who was apparently n erage, exited the Payne Reliever
carrying a can of beer in h' s and. Officer Malmberg observed
Lindbom as the officer's sq ad was driving by the Payne Reliever.
Lindbom denied he as drinking in the Payne Reliever.
Officer Malmberg offered th estimony that in his experience many
underage persons lie about u h facts.
On cross examination, f cer Malmberg was -unable to offer a_ny �
evidence that Lindbom had ur hased or obtained beer from the Payne
Reliever. He did not ente t e Payne Reliever to ascertain whether
Lindbom had been in the es a lishment. Nor could he offer any
evidence that the licensee o any of its employees observed or had
knowledge that Lindbom re v d alcohol from the premises, or that
they allowed removal.
Nor was Officer Malmb rg able to state that had Lindbom been denied
entry to the Payne Reliev r ecause he tried to bring the beer in with
him or was underage, or b t , that the officer would have observed
anything differently than w at he did observe.
Based on the evidence a d the law, the proper conlcusion is that
no removal offense occur d ecause there is prohibition on removal.
Further, there is not on s red of evidence that an underage sale
took place in the Payne el ' ever.
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In the alternative, there i no evidence that Lindbom purchased
the beer from the Payne Relie e and the evidence provided by
Officer Malmberg is as consis e with Lindbom having been turned
away at the door because he t i to enter with a beer or was
underage, or both, as it is t a he was allowed to remove beer from
the premises.
E. Incident of Se t m er 9 1988
Alleged violatio : 1 ) Allowing removal
The testimony regard n this incident demonstrated that
Officer Malmberg observed Ken wanson exit the Payne Reliever with
his brother. The officer obs r ed Swanson to be holding two cans of
beer.
On cross examination, Off c r Malmberg was unable to offer any
evidence that Swanson had obt i ed the beer in the Payne Reliever,
or that the licensee or any o ' ts employees observed or had
knowledge that Swanson remove lcohol from the premises, or that
they allowed him to do so.
Nor was Officer Malmberg b e to state that had the Swansons
been denied entry to the Payn eliever because they had tried to
bring the beers in with them h t the officer would have seen
or observed anything differen 1 than that which he did observe.
Based on the evidence and t e law, the proper conclusion is that
no offense occured because th r is no prohibition on removal.
In the alternative, there i no evidence that the Swansons
purchased the beer from the P y e Reliever and the evidence provided
by Officer Malmberg is as con i tent with the Swansons having been
turned away at the door becau e they tried to enter with beers or
that they secretly removed t eers as it is that they were allow�d
1 9-
i ' . • . (/ Cj� ����G�
�{ (i
C/
to remove alcohol from the pr m' ses.
C. Incident of Oct be 25 1988
Alleged violati n: 1 ) Allowing removal
The testimony regar i this incident demonstrated that
Officer Jensen was on the si e lk in front of the Payne Reliever
with his partner breaking up a fight when he saw Michael Boskovick
exit the Payne Reliever car i g a can of beer. Boskovick stated
he was a member of the band pl ying at the Payne Reliever.
On cross examination, O fi er Jensen was unable to offer any
evidence that the licensee r ny of its employees observed or
had knowledge that Boskovic emoved alcohol from the premises
or that they allowed him to d so.
A fight of the type ta in place on the sidewalk generally and
naturally willdraw a crowd an it is possible that Boskovick had
exited the Payne Reliever ' nt nding to view the fight without
really thinking about the ee in his hand.
Based on the evidence n the law, the proper conclusion is that
no offense occured because t ere is no prohibition on removal.
In the alternative, t vidence argues that Boskovick was drawn
to the fight without thou ht of the beer in his hand. It stretches
the imagination to think ha one would intentionally walk out of
bar holding a beer and in o he hands of two waiting officers.
In the further altern t ' e, there is no evidence that the licensee
or any of its employees o s rved or knew Boskovick had removed
alcohol from the bar or d allowed him to do so.
VI. After hours dis la or consum tion of alcohol
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VII. Allowin erson i he licensed remises after hours
This is another in the i e of phantom offenses. There simply is
no prohibition on allowing e sons in a licensed premises after hours.
In fact, it is a quite comm n occurence and a necessary practice for
licensees to have employees p esent doing certain cleaning functions.
In both the incidents where t is violation is claimedthe City was
unable to provide any evide c that the persons present in the
Payne Reliever were not eit e employees cleaning up or band members
packing and loading equipme t.
VIII. Failure to allow r m t entr b olice for ins ection
As argued above, there ' s o requirement of pro�pt entry, only
a requirement of entry. Th e idence here indicated that entry was
permitted and that under th c rcumstances the entry was allowed in a
reasonable manner. Upon al w ng entry, the licensee had met its duty
under Code §310. 12. No viol t on occured.
A. Incident of Jun 5 1988
Alleged violati n 1 ) After hours display of alcohol
The testimony about t is incident proved conclusively
that no violations occured. O ficer Jensen was unable to provide any
evidence that any persons no ployees or band members were inside
the licensed premises. The m loyees were cleaning and the band
members were packing and loa i
Officer Jensen' s as er ions regarding the time he thought
a band should take to pack u w re rebutted on both cross examination
and with other testimony.
Finally, Officer Jensen es ified on direct examination and
reiterated on cross examinat 'on that he did not observe either
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consumption or display of al o l.
Without either consumpti n or display, there can be no
violation. The only possib e onclusion is that there was no
after hours display on June 15 1988.
B. Incident of No e er 1 1988
Alleged violat 'o : 1 ) After hours display of alcohol
The testimony abo t his incident indicates that Officer Jensen
and his partner entered th P yne Reliever through an open back door
after regular hours and ob e ved Pete Matthews, an employee, sitting
at the bar next to a Steve right. Office Jensen testified that he
observed an open, cold ca o beer on the bar in front of Wright.
A third party, Todd Klari h, was across the bar with an unopened,
cold can of beer beside h m n the stool.
Wright and Klarich wo k d for the band which was tearing down
that night.
Matthews testified t at he had been in the office and sat down at
the bar only immediately b ore the police entered. He testified that
he had no idea where the b er next to Klarich came from. He further
testified that he had p c d the beer on the bar in front of Wright,
having deposited the sa e n the ice bin earlier in the evening when
a patron ordered the be r ithout the necessary funds to pay for it.
It is with the fact f this incident, alone among the myriad
violations alleged by e City, that the City would get to a jury
in a criminal context r scape a motion for summary judgment in a
civil case.
Still, the inferen e which can be drawn from Matthews testimony
are not illogical. K1 r ch could well have helped himself to the
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beer beside him without Matt e s ' knowledge or permission while
Matthews was in the office. A d, if Matthews had deposited the
beer in front of Wright in t e ice bin earlier, he might well
have set it on the bar and f r otten about it when he proceeded to
empty the ice bin after clos 'n .
IX. Permittin a erson t caress or fondle the enitals of another
Though the notice of hea i g indicated and alleged that this
offense occured on both Ju y 17, 1988, and August 15, 1988, there was
no testimony or evidence h t any person caressed or fondled the
genitals of another during t e uly 17, 1988, incident. As a conse-
quence, this offense will be a lyzed here only in the context of
the August 15, 1988, inciden .
X. Permittin a female t dis la her enitals
XI. Permittin a erson w dis la s her enitals to remain
A. Incident of Jul 1 1988
Alleged violati ns: 1 ) Permitting display of genitals
2 ) Permitting one displaying
genitals to remain
This incident invol ed a wet t-shirt contest. Officer Jensen
testifed that he observed Ti fa y Gude, a contestant, lie on her back
and expose her genitals. He wa unable to provide any evidence that
the licensee or any of its e pl yees had knowledge of or permitted
the exposure while it was ta in place. Officer Jensen further
testified that he left the P yn Reliever within ten minutes of entering
without talking with any of he licensee' s employees about Gude' s
behavior.
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, •� . . ��- ���
Pete Matthews, an employee of the licensee, was present during
the evening in question. He s at d that he witnessed the signature
of Tiffany Gude on Respondent' hibit 12, wherein she acknowledged
that she was a contestant and 1 ged that she would obey all state
and local laws.
Matthews further testifie t at he did not observe the exposing
but was told of it by two pat on after Gude' s musical number. He
stated he immediately informe G de that she was disqualified from the
contest.
A short, heated verbal ex ha ge between Matthews and Gude followed.
At the conclusion of the exch n , Gude was asked to leave the premises
and did.
According to Officer Jens n' s testimony, the incident began at
11 :50 p.m. Since the date i q estion was a Sunday, the incident
could not have lasted more t n ten minutes from beginning to Gude ' s
exit as Sunday closing is mi ni ht.
Nothing in the facts is on istent with a finding that the
licensee or its employees p r ' tted Gude to display her genitals
or permitted Gude to remain n he premises after exposing herself.
After Matthews learned of he ehavior, he confronted her, disqualified
her, and asked her to leave.
The behavior of the lice s e, acting through its employees, is
exactly what the law contem la es. The proper conclusion is that
no violation of either Code §4 9. 09( 5 ) (d) or Code §409.09(7 ) occured.
B. Incident of Au us 15 1988
Alleged violat o . 1 ) Permitting one to caress or fondle
the genitals of another
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• � ^ .- Q � '`
2 ) Permitting display of genitals
3 ) Permitting one displaying
genitals to remain
Other than those al eged violations for which no statutory
basis exists, it is in th' s ncident that the licensee and its em-
ployees acted in the most x mplary fashion.
Officer �talmberg testi i d that he observed a patron climb on
the stage, go behind a ban ember and reach around and grab the
area of his crotch. James C ea testified that he recalled the female
patron, Beverly Joan Flowe s, touching the shoulders of the band
member.
However, both Officer al berg and Crea agree that Crea immediately
"warned" Flowers off the s ag .
Flowers was not ejecte a that point and the failure to eject
her does not constitute a v 'o ation itself. Code §409. 0 ( 7 ) applies
only to ejection of those w o have exposed their genitals and at that
point Flowers had not yet d n so.
Officer Malmberg testif e that he later observed Flowers lying
on her back on the observat on bar with her legs in the air exposing
her genitals.
Crea and employee Kerry Mu phy testified that they observed the legs
in the air but because of t e rowd did not see Flowers expose her
genitals.
Pete Matthews entered th ar at this point, observed the exposure
of Flower' s genitals and ord r d Murphy and Crea to eject her.
Murphy waded into the cr w , picked up Flowers, and, accompanied
by Crea, carried her out the f nt door at which point she was arrested
by Officer Malmberg.
-25-
/)
9 ` � � � �'��cQ
Officer Malmberg, Crea, Murp y and Matthews all agree that from
the point Flowers first came t t eir respective attentions on the
observation bar to the moment M rp y deposited her on the sidewalk
took no more than one and one h 1 to two minutes.
It is difficult to see wha e se the licensee and its employees
could have done or how they co ld have done it more rapidly.
There was no permitting of t e touching of th� genitals of
another. Flowers was not per it ed by the licensee to expose
her genitals. And she certai ly wasn' t allowed to remain on the
licensed premises after expos n her genitals. The proper con-
clusion is that there was not a violation.
CONC US ON
For ten years, Responden s conducted its business in an exemplary
fashion: no tickets, cooper t 'on with police, taking steps to please
the surrounding neighborhoo , mploying vastly more security personnel
than any other licensee, po ti g signs and making good faith efforts
to conduct itself properly.
The City has thrown up mokescreen of violations that don't exist,
that contain only innuendo an rumor, that constitute the hope that
if enough violations are a 1 ged one will be tempted conclude that
smoke must be followed by i e.
Save but for the sing e ncident of November 1 , 1988, the City
has utterly failed to mee en the slightest burden of proof.
And that allegation was s b tantially rebutted.
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Please conclude that Respo d t has not violated any statutory
or ordinance provision, real, m ined, or implied.
March 6, 1989 Respectfully submit ed,
-------_. __
S. MARK VAUGHT
Attorney for Respondent
800 Landmark Towers
345 St. Peter Street
Saint Paul, Minnesota 55102
( 612) 297-6400
Atty. Reg. No. 131519
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n� ���`�
- - STATE OF I ESOTA �=
�`°'ES�;, �
�?` �� OFFICE OF ADMINI R IVE HEARINGS
y -� �
��. -
�^`�'��'��'� HEARING UB OENA
To Fet� Matthewa
910 Edg+��ton Str��t, S� n Paul, Minrresota S51�I
GREETINGS:
YOU ARE HEREBY CObA�SANDED to lay as'de all your business and eacuses and to
appear before ��niBtZ'a�1Vlt tldq! Stephen D. 9aan�con
of the Office of Administrative Hearin s f the State of Minnesota at
iSth �lc�or, Gity Hall anneex, 25 T�e�t Fourth Str�et,
in tne city of 3aint Paui , �sp countY,
trtinnesota, on the ��th "et�d lgth Y f February � 19 gg
at �=d� o'clock in the � noon, to appear as a witness in
the matter of '�'� PeYne R�lievm t 7siH Dooket No. 54-Z10I-3123-6
. >;
YOU ARE FURTHER CO2�II�SANDED to brin a d have with you, to be used as
evidence in the hearing, if required, th following:
Pursuant to the authority grante i Minn. Stat. § 14.51, Witness, the
Honorable William G. Brown, Chie A inistrative Law Judqe, at
Minneapolis, Minnesota, this � � day of �/w/E , 19�
.
� •
WILLIAM G. BR WN
Chief Administrative Law Judqe
612/341-7600
HG-00061-01
_ . � _ � 9 -���
S. UGHT
Attorn A Law
Su'e
345 Sain Pet Street
Saint Paul, inn ta 55102
(612) 97
February 10, 1989
Mr. Stephen D. Swanson
Minnesota Office of Administra i e Hearings
Fifth Floor - Flour Exchange B i ding
310 Fourth Avenue North
Minneapolis, MN 55415
RE: In the Matter of Wa d roperty Management, Inc. ,
d/b/a The Payne Rel ' ev r
Dear Mr. Swanson:
As you know, I represent t above referenced establishment
with regard to an administrat v hearing to be held before you on
February 14 and 15, 1989.
This letter is meant as h request of my client, pursuant
to Minnesota Rules 1400. 7000, S bpart 1 for a subpoena to compel
the attendance of the followi g witness at the hearing which is
being held on the 15th Floor, C ty Hall Annex, 25 west Fourth
Street, Saint Paul, MN 55102:
Pete Mat he s
910 Edge to Street
Saint Pa 1 , Minnesota 55101
Until Monday, February , 989, Mr. Matthews was the manaqer
of the Payne Reliever and wa esent during many of the incidents
in question. It will be imp s ible to present any cogent defense
to at least two of the charg s, and possibly more, withou� .M�,_-_Ma�thews
testimony.
Mr. Matthews severed hi mployment after being questioned by
a Saint Paul police officer n February 6, 1989, and has failed to
keep one appointment with m t discuss his testimony and has also
failed to return my telepho e alls.
Ver truly s
S. MARK VAUGHT
��__ .
Attorney at La
cc Thomas J. Weyandt, Esq.
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�°���" IVE� CITY OF SAINT PAUL
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�; '��, E� � ,,�, OFFICE OF THE CITY ATTORNEY
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'?,; �;� ���� EDWARD P. STARR, CITY ATTORNEY
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�� �.` 647 City Hall, Saint Paul,Min�esota 55102
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612-298-5121
GEORGE LATIMER
MAYOR
February 3 , 1989
S . Mark Vaught
Suite 400
345 St. Peter Street
St. Paul , MN 55102
Re : Ward Property Man ge ent, Inc . , doing business
as : Payne Reliev r.
My file : 5-88-10 1
Dear Mr. Vaught :
Enclosed herewith an erved upon you please find
the City of St. Pau ' Request for Witnesses and
Statements and Interr ga ories in the above referred
matter.
Very truly yours ,
� � y�
' �I`N1�- �Jf�,�,_/`�\j
f ,F—
Thomas . Weyandt
Assistant City Attorne
TJW:ar
Enclosure
cc : Stephen D. Swanso
R�cE�vEa
��� � ��
IN RE TH TTER OF ADAAINISTRA'T�I/��
WARD PROPERTY AGEMENT INC. , HE�IRINGS
Doing business s : Payne Reliever
THE CITY OF ST. PAUL INT R GATORIES TO WARD PROPERTY
MANAGEMENT
TO: Ward Property Man g ent, doing business as :
Payne Reliever and its At o ney S. Mark Vaught.
Pursuant to Minn. ules , 1400. 6700 , Subpart
2, The City of St. Pa 1 hereby requests that the
Ward Property Manageme t Inc. , following Interroga-
tories prior to the hear'n in this matter:
1 . For each witne s identified in your Response
to the City' s Request fo Witnesses and Statements ,
state :
a. The subjec m tter upon which the witness
is expected to testify
b. The substa ce of the anticipated testimony
of the witness .
� �-ti�-,-t/ ��,.�-
DATED: February 3 , 1 89 T mas J. Weyandt
Li�ense No. 116336
Office of The City Attorney,
647 City Hall ,
St. Paul , Minnesota 55102.
612-298-5121
� ������g
��CEIVED
b �� � 1.7V�7
ppMINISTRAT11l�
� IN RE THE A TER OF ��N�
WARD PROPERTY N GEMENT INC . ,
Doing business a : Payne Reliever
THE CITY OF ST. PAUL' S EQ EST FOR WITNESSES AND
STATEMENTS
TO: Ward Property Managem nt Inc. , and its Attorney,
S. Mark Vaught.
Pursuant to Minn. u es, 1400.6700, Subpart
1 , The City of St. Paul reby requests that the
Ward Property Management In . produce the following
prior to the hearing in t ' s matter.
1 . The names and a resses of all witnesses
that you intend to ca 1 at the hearing of this
matter.
2. Any relevant w it en or recorded statements
made by Ward Property a agement Inc. , and/or em-
ployees and/or any wit e ses on behalf of either
party.
`�//�},,,�...z„ �._..�r��', _
v
DATED: February 3 , 1989 Thom s J . Weyandt
License No. 116336
Office of The City Attorney,
647 City Hall ,
St. Paul , Minnesota 55102.
612-298-5121
_ ,� ,�.;
,
M S�*'�. CITY OF SAINT PAUL
e �
�;` '�9 OFFICE OF THE CITY ATTORNEY
?� iiii�iii�ii �>
?;: ,:= EDWARD P. STARR, CITY ATTORNEY
`>,;
'"���°,'m�``` 647 City Hall, Saint Paul, Minneso[a 55102
612-298-5121
GEORGE LATIMER
MAYOR
January 31 , 1989 �
��i'V�D
FE6 2 f�.9
p0�11NrIS'li�l1''�/�
Stephen D. Swanson � � ��� .
Rdministrative Law Judge `
State of Minnesota
Office of Administrative Hea in s
Fifth Floor , Flour Exchange ui ding
310 Fourth Avenue South
Minneapolis , MN 55415
RE : Ward Property Management : Payne Reliever
Dear Judge Swanson:
As per your request of Januar 0 , 1989 , copies of Chapters 245 ,
246 , and 310 of the St. Paul e islative Code are enclosed.
Very truly yours ,
� �ti�-.--�'J
Thomas J . � eyandt
Assistant City Attorney i
TJW: jj
Encl .
,�-� �- ' �y��
�G�.'��� �
Y���a ou,y•.,`A
�w��1 ..
STATE OF MI N SOTA
OFFICE OF ADMINIST ATI E HEARINGS
FIFTH FLOOR,FLOUR E CHA GE BUILDING
310 FOURTH AV NUE OUTH
MINNEAPOLIS,MI NE TA 55415
(812)31 •7
January 0, 1989
Thomas J. Weyandt
Assistant City Attorney
Office of the City Attorney
647 C�ity Hall
St. Paul, Mn 55102
Re: Ward Property Management: P n Reliever
Dear Mr. Weyandt:
In anticipation of the forthco 'ng hearing, please forward to me copies of
Chapters 245, 246, and 310 of the t. aul Legislative Code.
Thank you very much.
Yours very truly,
�� ��, � . �w��
STEPHEN D. SWANSON
Administrative Law Judge
Telephone: 612/341-7604
SDS:plp
cc: S. Mark Vaught
N QUAL OPPORTUNITY EMPLOYER
J<`.� a�..�o � �d13 -(P S �' � ' �r/_ �'
_ �� �
�� ;�' °-; CITY OF SAINT PAU�
. �!.
OFFICE OF THE CITY ATTORNEY
0
� w�u+nm ,;
�� �w �u n •= EDWARD P.
`" "` STARR, CITY
ATTORNEY
��"``�mQ�•>,�°'�``' 647 City Hall. Saint Paul.Minnesota 55102
GEORGE LATIMER
MAYOR �E�ED 612 �8 51�i
January 11 , 1989 1� 1 � �
d
��i�►TNE
S. Mark Vaught ��
Suite 800
345 St. Peter Street
St. Paul , MN 55102
RE: Ward Property Mana em nt
Dear Mr. Vaught,
The dates of the heari g ave been chan tO February 14
and 15, 1989 at your r qu st. On �ebr� 15 the hearing
will be held in Room 1 08 City Ha11 An'
Sincerely,
' �J'n�V��"� i �
�
Thomas J. yandt
Assistant ity Attorne
TJW/acp
CC : Stephen D. Swanson, A inistctorw Judge .�
Joseph F. Carchedi , L cense
Lt. Donald Winger, i e Uni
Albert B. Olson, Ci y lerFfice
Lt. Donald Trooien, E st T
�