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99-164Council File # �tq - lG4 �RIGlNAL Presented By Referred To RESOLUTION CITY OF SAINT PAUL, MINNESOTA Green Sheet # 63513 1 Committee: Date 1 RESOLVED, that a fine of ($200.00) sha11 be assessed against the cigarette license held 2 by Grand 7 Saloon, Inc. d/b/a Grand 7 Saloon for the premises at 315 West 7�' Street, Saint Paul, 3 for the violation of Sale of Cigarettes to a Minor on September 28, 1998, in violation of Minn. 4 Stat. § 609.685 and Saint Paul Legislative Code § 324.07, and for the violation of Minn. Stat. 5 §46118, subd. 2, for having a tobacco vending machine on premises that were not restricted to 6 persons under the age of 18. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 FURTHER RESOLVED, that the costs of the Administrative Law Judge hearing shall be assessed against the licensee, in the amount of $2,393.30, based upon Saint Paul Legislative Code §§310.05(k)(i) and (vii), in that the defense of the licensee an this matter is hereby found and determined to be frivolous and without any credible basis, and that the offense involved Yhe sale of cigarettes to a minor. FURTHER RESOLVED, that the findings of fact, conclusions of law and memorandum contained in the AJL Report in this case, dated January 15, 1949, are expressly ratified and adopted as the written findings and conclusions of the Councii in this matter, and the recommendation of the ALJ is hereby adopted. This Resolution is based on the record of the proceedings before the ALJ, including the hearing on November 24, 1998, the documents and e�chibits introduced therein, and the delaberations of the Council in open session on February 3, 1999. i 2 3 4 A copy of this Resolution, as adopted, shall be sent by first class mail to the Administrafive Law Judge and to the licensee's attomey, Gerald Rummel. �RIGINAL o[4-I�y Adoption Certified by Council Secxetary BY: Appx By: Requested by Department of: By: Posm Approved by City AttoY� ✓, q By: / J Liy(�.� Appxoved by Mayor fos Suk�mission to Council BY: , Adopted by Council: Date � �� . �. � , `�� 99 -1 �4 DFPARTMFNT/OFFICElCOUNCIL Ow7E WIMTEO , c�t coun�� Feb. 08, 1999 GREEN SHEET No 63513 CON7ACT PERSON 8 PFIOIJE NMWIWb Inm9lData Councilmember Coleman ov.mrerto.rc�oR a'rm.� MUST BE ON CIXINCIL AGENQ4 BY @4T� ,iSSIGx February , 1999 crvurauEr ❑arvuenK tt uw�eEacaa � ! acunxe ortnot ❑ winxw�aaxcFSmt ❑ w�xry�smvinccTc ❑Yp�'ortiOrt�456rANn ❑ TOTAL # OF SIGNATURE PAGES (CLJP ALL LOCATIONS FOR SIGNATURE) CTION REQUESTm Finalizing City Council action taken Pebruary 3, 1999,concerning the Cigarette License held by Grand 7 Saloon, Inc., 315 West 7th Street, and adopting the Findings of Eact, Conclusions, and Recommendations of the Administrative Law Judge. RECOMMENDATIONApproYe A)or eject(R PERSONALSERYICECONTRACTSMUSiANSWEiITNEFOLIOWZNGQUESTIONS: 1. Has this pe�soNfi`m ever warked uMer a contract ta this depaRment? PLANNING COMMISSION YES NO CIBCAMMffTEE 2. HasthispetsoiuTimteverbeenacRyempbyee? CIVIL SERVICE COMMISSION vES No 3. Dces this persw�firm possess a sldll not nomallyposaessetl by eny curteM cdy employee? YES NO 4. istlrapersonlfiimataip�edvendoYl YES NO ENplain all yes answers on sepa2te sheet aM altach W green shee[ INITIATING PROBLEM ISSUE. WPORTUNITY (Wkq. What, When. Where. WhY) ADVANTAGESIFAPPROVED - DISADVANTAGESIFAPPROVED DiSADVANTAGES IF NOT APPROVED TOTALAMOUNTOFTRANSACT1011= COSTIREYENU68UD6EiED(CIRCLEON� YES NO FUNDING SOURCE ACTIVITY NUMBER FlNANCIFL INFORMATON (E%PWN) vrri�r.�r �Htu�vp�i��t�ey Clqrlan d4. RoAinsner, Jr., C�{r Annnrer CITY OF SAINT PAUL P'orm Caleraan, Mayar January 20, 1999 Mr. Gerald C. Rummel Rummel Law Firm, Ltd. 2300 Firstar Center 101 East Fifth Street Saint Pau1, Minnesota » 101 �� e� RE: In the Matter of the CiQarette License held by Grand 7 Saloon, Inc. dJb/a Grand 7 Saloon for the premises at 31 � West 7`h St. in St. Paul License ID No.: 001629� Our Fi1e Number: G98-0428 Dear Nir. Rummel: Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, February 3,1999, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opporiunity to file exceptions to the report with the City Clerk at any time during normal business hours. You may also present oral or written argument to the councii at the Hearing. No new evidence will be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Administrative Law Jud�e and on the azguments made and exceptions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its judgement and discretion. Sincerely, �� Virgini�Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hali Robert Kessier, Director, LIEP Christine Rozek, LIEP Ciri! Dirrsion .� • 400 City Hu(! TelepGone: 65l ?66-8710 15 West Ke!logg Blvd Factimile: 657 ?98-5679 � Saint Paul, Minnesota ii702 � � ( A • V �� CiQ`'•l�tC€e }:c...,_�._� ��3is:<<;?f \rOTICE OF COUNCIL HEARING Beriy Moran, community Organizer, West SeventhfFort Road Federation, 474 West Seventh St., St. Paul, MN 5�102 8-2111-11951-3 STATE OF MINNESOTA q OFFICE OF ADM{NISTRATIVE HEARfNGS FOR THE CITY OF ST. PAUL In the Matter of the Cigarette License FINDINGS OF FACT, Held by Grand 7 Saloon, Inc., d/b/a CONCLUSIONS OF LAW Grand 7 Saioon, for Premises Located at AND RECOMMENDATION 315 West 7� Street, License I.D. No. 0016295 The above-entitled matter came on for hearing before Administrative Law Judge Jon L. Lunde, acting as a hearing officer for the Saint Paul City Council, commencing at 1:30 p.m. on Tuesday, November 24, 1998, at the Saint Paul City Hall/Ramsey County Courthouse, 15 West Kellogg Boulevard, St. Paul, Minnesota. The hearing was held pursuant to a Notice of Hearing dated October 30, 1998. Virginia D. Palmer, Assistant St. Paul City Attorney, 400 City Hall, 15 West Keilogg Boulevard, St. Paul, Minnesoia 55102, appeared on behalfi of the City's Office of License, Inspections and Environmental Protection (LIEP). Gerald C. Rummel, Rummel Law Firm, 2300 Firstar Cent�r, 101 East 5` Street, St. Paul, Minnesota 55101, appeared on behaif o4 the Licensee, Grand 7 Saloon, fnc. The record closed on January 8, 1999, when the last authorized brief was filed. NOTICE This Report contains a recommendation and not a final decision. The final dec+sion will be made by the Saint Paul C+ty Council, which may affirm, reject, or modify the Findings and Conclusions contained herein. The council will consider the evidence in this case and the hearing examiner's recommended Findings of ract anrJ Conciusions, bu� w�ii r�ot c�rsi��r any fa��ual testimor,y net previously submitted to and considered by the hearing examiner. The respondent will have an opportunity to present oral or written arguments a{{eging error on the part of the hearing examiner in the application of the law or interpretation of the facts and may present argument related to the recommended adverse action. The council's decision as to what, if any, adverse action shall be taken will be by resolution under § 310.05 of the St. Paul Legislative Code. To ascertain when the councif wi11 consider this matter, the parties should contact the Saint Pauf City Council, Room 310, St. Paul City Hall/Ramsey County Courthouse, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102. qq-(G�. STATEMENT OF ISSUES � It is i{lega{ to sell tobacco products from vending machines except in faci{ities that cannot be entered at any time by persons younger than 18 years of age. The respondent was cited because it has a vending machine on its premises. Were persons younger than 18 years of age permitted to enter the respondenYs premises? II. The City regulates the sale of tobacco. Among other things, it prohibits the sale of tobacco to anyone under ihe age of 'f S. �id ihe resp-�ndent szii tobacco products to a minor from a vending machine on its premises? Ifl. At the hearing, respondent stated that its defense to the charges is that they are untrue. ln its post-hearing brief, respondent raised other defenses. Can the additional defenses be considered by the Saint Paul City Council and the administrative law judge? Based upon ail of the files, records and proceedings herein, the administrative law judge (ALJ) makes the foilowing: FINDINGS OF FACT 1. The respondent licensee, Grand 7 Saloon, Inc., is a corporation doing business as Grand 7 Saloon at 315 West 7` Street, St. Paul, Minnesota. The corporation was acquired by William Heine in 1980, and he is still the owner. Respondent has a cigaretteltobacco license which is valid untif March 31, 1998. 2. Kristina Schweinler is a Senior License Inspector for LIEP. She has been employed by the city for 16 years and is responsible, among other things, foT ihe eniorcement af laws �eEating to the safe oi tobac�o. Currentl,, LlEP is i;, the process of compieting an annual comp{iance check of ali 450 licensed tobacco vendors in the city. Under state !aw 4 the city must make an annuaf compliance check of tobacco licensees to monitor the sale of tobacco to minors. 3. Schweinler works wifh juveniles in determining if licensees are in compliance wifh applicable tobacco laws. Juveniles who participate in making ' Minn. Stat. § 461.18, subd. 2, adopted by Laws 1997c.227 § 6. Z St. Paul Legislative Code, Sec. 324.07. 3 City Ex. 2. ' Minn. Stat. § 461.12, subd. 5. 5 !d. 2 q�-��`I compliance checks must be "over the age of 15, but under the age of 18. ..." 6 The youths are provided by Youth Express, an organization that works with the city and others to provide jobs for juveniles. Juveniles working with Schweinler are paid $10.00 hourly. Prior to making their first compliance check, the youths receive training and instruction relating to iobacco laws, fair inspections, and required procedures from LIEP sfaff and the University of Minnesota. During their training, they act out compliance checks using a uniform skit. Wnen they are on duty, the youths have no money of their own and do not carry any identification or try to trick iicensees. If asked their age, they are required to give their real birth date, nothing else. 4. On September 28, 1998, Schweinler conducted a tobacco compliance check of the respondenYs estabiishment with Tyrone Lewis, a 15- year-old boy born January 5, 1983, who has worked with Youth Express for approximately five years. 5. On September 28, Schweinler and Lewis wese assigned to do approximately 10 tobacco compliance checks. Respondent was the third or forth establishment they checked that day. They arrived at approximately 4:00 p.m. Schweinler parked her car on Seventh Street and gave Tyrone $5.00 to enter the respondenYs estab4ishment and purchase a package of cigarettes. 6. Tyrone entered the establishment a4one using the front door. No one carded him when he entered or told him to leave; there were no signs stating that juveniles could not enter; and the respondent had no policy forbidding minors from entering. There were approximatefy 15 patrons in the saloon when Tyrone entered. They all knew one another and many had just returned from a golf tournament. There was only one employee on duty: The bartender, Robert Becker. It was Becker's third day on the job. 7. Tyrone proceeded to the back of the barroom where a cigarette machine, in p{ain view, was located. He attempted to purchase a package of cigarettes using his $5.00 bili, but the machine would not accept it. Consequently, Lewis walked over to the end of the bar and obtained change from the bartender. Lewis did not tell Becker that he needed change to buy cigarettes 2�d Becksr asked him no G�.:2stions. Secksr gave Le:^ds fvs $1 bi!!s, which Lewis used to buy a package of Camel cigarettes from the vending machine. When selling cigarettes, Becker allegedly had been told to check the purchaser's identification and to activate the vending machine if proper identification was shown to him. However, Becker did not ask Lewis for his birth date or any identification. 8. After Lewis purchased the cigarettes, he promptly left the bar and joined Schweinler in her car. Schweinler compieted a tobacco compliance check form, then returned to the sa{oon to identify the bartender. 6 Minn. Stat. § 461.12, subd. 5. Because Tyrone was 15 years of age at the time of the compiiance check, an argument couid be made that he was too young to participate in compliance checks because he was not "ove�' age 15. See, e.g., "Ove�', 67 C.J.S. 918. This issue was not raised or briefed by the parties and cannot, therefore, be considered by the ALJ. 3 q �—lc.� 9. After Schweinler entered the saloon, she walked to the rear of the bar near the cigarette machine and waited for Becker. When Becker waiked over to her, Schweinler told him that he had just sold tobacco products to a minor and she asked him for identification, which he provided. Customers became aware of the reasons for Schweinler's presence and were angry about it. At least one of them falsely stated that Tyrone had snuck in through an open service door in the rear ofi the saloon, and Becker added that he didn't push the remote errable Lewis to buy cigarettes from the machine. Two patrons said they would say that Tyrone pushed the macfiine's remote acfivation button, which was located on the back bar. The customers were quite hostile and stood in front of Schweinfer and yeNed at her while she was attempting to leave. 10. On October 6, 1998, the St. Paul City Attorney's Office issued a Notice of Violation to the respondent. The Notice stated that on September 28, 1998, an empioyee iliec�afly solc cigareties fo a minor undei �he age of 18 years in violation of state law and the St. Pau1 Legislative Code. The Notice stated that since this was the respondenYs first violaticn, LIEP would be recommending a$200 fine. On October 19, 1998, the respondent filed notice of its appeal. 11. On October 30, 1998, the Assistant City Attorney, Virginia D. Palmer, issued a Notice of Hearing, and on November 2, 1998, the Notice of Hearing was served on respondenYs counsel. In addition to the charges contained in the Notice of Violation, the Notice of Hearing included an additional charge stating Rdditiona!!y, the cigarette vending machine from which the cigarette sale was made was located in an open, accessible area within the licensed premises. The establishment is not posted to restrict entry to minors. Accordingly, the licensee is also in violation of Minn. Stat. § 461.18, subd. 2. Ai the hearing, respondent did not object to the additional charge, and when asked to state its defenses to the charges in this matter, the respondent stated only that they are untrue. 12. On September 28, 1998, the saloon did not have signs at the front door informing pzrsons under 18 years of age that ihey were not aliov✓ed to enter, and no employees checked the identification and age of patrons as they entered. Aiso, a rear entry service door near the cigarette machine was propped open, creating unobstructed access to the saloon. The saloon had no policy prohibiting minors from entering. 13. The cigarette machine in the saloon had a black and white sign 27 inches long and 6 inches high which stated that a photo I.D. was required for anyone under age 27. The sign also stated, "This is NOT a self-service, coin- operated vending machine." In somewhat smaller type, the sign warned persons ' Minn. Stat. § 609.685. 8 Section 324.07. 9 Ex. A. � �f.q, - �C � under age 18 of the consequences of trying to obtain cigarettes. The sign also said: This storage kiosk is equipped with a lock-out device and can be accessed only after showing proof of legal age to an authorized employee of this establishment. Please help us keep our children safe. Based upon the foregoing Findings ofi Fact, the Administrative Law Judge makes the foliowing: CONCLUSIONS 1. The Administrative Law Judge and the Saint Paul City Council have authority to consider the charges againsf the respond2nt ard tha pena!ty, if a^y, that should be paid the city pursuant to Sec. 310.05 of the St. Paul Legislative Code. 2. L�EP has complied with all relevant substantive and procedural legal requirements. 3. The respondent received adequate and timely notice of the hearing and of the charges against it. 4. LIEP has the burden of proof to establish, by a preponderance of the evidence, that the respondent violated state law and the St. Paul Legislative Code. 5. Under Sec. 324.11(b), the presumptive penalty for the first illegal sale of tobacco is a$200 fine. 6. For purposes of Sec. 324.11(a) of the Saint Paul Legislative Code, there are no substantial or compeiling reasons for deviating from the presumptive penairy in this case. 7. Because the respondent's violations involve the sale of tobacco to a minor, under Sec. 310.05(k)(vii) of the Saint Paul Legislative Code the respondent sh�uld be required te pay ali the costs of this proceeding. 8. Respondent violated Minn. Stat. § 609.685 and Sec. 324.07 of the Saint Paul Legislative Code on September 28, 1998, when it soid tobacco to a minor under 18 years of age from a cigarette vending machine. 9. Respondent violated Minn. Stat. § 461.18, subd. 2, on September 28, 1998, by selling tobacco products from a vending machine on premises that could be entered at any time by persons under 18 years of age. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: 70 In re Kaldahl, 418 N.W.2d 532, 535 (Minn. Ct. App. 1988). : .. 9,q RECOMMENDATION IT IS HEREBY RECOMMENDED: That the Saint Paul City Council order respondent to pay a$200 fine and the costs of this proceeding. Dated this /S � day ofi January, 1999 � � �`�.`°t`— N L. LUNDE Administrative Law Judge Reported: Taped, two tapes MEMORANDUM This proceeding primarily invoives credibiliry issues. The respondent called four witnesses to testify: The owner, the bartender, and two patrons, Gregory Lendway and 7errance Brennan. All but the owner had been in the saloon when Tyrone's purchase was made. The testimony of the three who were present is unpersuasive and cannot be credited. The first reason that iheir testimony cannot credited is that they each had a reason to be untruthful. Becker's reason would be the desire to avoid disciplinary action or other sanctions; Lendway's reason stems from the fact that Becker was a good friend of his wife's and that he was a regular at the saloon who operated a pull-tab business there; and Brennen because he is a regular patron and works for tne company that owns tne cigarette machine i� the sa(oon. Also, Lendway's testimony was unpersuasive, inconsistent and weak. When describing the events that franspired he first said that he saw Tyrone reach over from the end of the bar to get to the remote button to activate the cigarette machine. He then testified that the remote was next to the cash register but that Tyrone reached it from the end of the bar. The remote, however, would not have been reachable from the end of the bar if it was by the cash register. Furthermore, a patron like Tyrone wouid not have been able to reach the remote which was {ocated six to seven and 'h feet from the patrons' side of the bar and it is unlikely that Tyrone prostrated himself across the bar to get to the remote. When describing the atmosphere in the saloon after Schweinler entered, Lendway said there was a"big skirmish°. Th�n he said the patrons were just C� �{`t- t4 �l "razzing he�' and that he couldn't teil if they were hostile or just being funny. Lendway aiso said that there were six remates in the establishment but that he didn't know what the cigarette machine remote looked like. Brennen's testimony was equafly weak and unpersuasive. He testified that Tyrone reached around two patrons sitting at the bar and stretched across the bar to get to the remote. That is not piausibie because it would have been necessary for Tyrone to reach a distance of six or seven feet or more. On the other hand, the iestimony presented by Schweinler and Tyrone was consistent and persuasive. Neither of them had a reason to fabricate their testimony. For them, this was simply a routine compliance visit. The patrons, on the other hand, were angry about the compliance visit and threatened fo testify untruthfuiiy. The testimony of respondent's witnesses simply cannot be credited. If Becker honestly didn't press the remote button, the ALJ is persuaded that the remo:e devise was off and the cigarette machine was usable. 6ecker shouid have monitored Tyrone's actions and prevented a sale to him. Il. In its post-hearing brief, respondent asserted defenses not previously raised. The first defense is that the Notice of Hearing does not state the adverse action proposed for respondenYs violation of Minn. Sfat. § 461.18. RespondenYs position apparentiy is that the aileged violation of Minn. Stat. § 461.18 must be dismissed because it wasn't listed in the Notice of Violation. The Saint Pauf Legisiative Code does not preciude the city from adding new charges against a �icensee in the Notice of Hearing. It only requires notice of the place, days and time of the hearing; the issues involved; and the grounds for adverse action." The Notice of Hearing contained aH that information. Because the code does not prohibit the amendment of a Notice of Violation, if the Notice of Hearing is otherwise proper as to form, content and execution, the ALJ is persuaded that the Notice of Hearing may inciude charges not set forth in the Notice of Violation when the new charges relate to the same event, transaction, or occurrence and the �icensee receives notice of the new charge and an opportunity to defend, as respondent had here. Assuming it were true that the Notice of Hearing cannot include an additional charge, that issue cannot be considered because it was not raised at the hearing. Although no pfeadings are required of a respondent in cases like this, respondent cannot raise issues not articulated when asked to state its defenses at the comrimencement of the hearing. Furthermore, respondent must do more than merely raise legal issues. Here, respandent presented no authority or theory supporting its apparent view that the charges in the Notice of Violation cannot be amended. Respondent also failed to show that it was prejudiced by the amendment. Since an additionai fine was not proposed by LIEP, respondent can hardly claim prejudice. " Saint Paul Legisiative Code Sec. 310.05(b). 7 q.�i-��{ Respondent raised another issue not identified at the time of the hearing. In its brief, respondent alleged that the city had agreed, in another case,' not to enforce Section 461.18 pending a judicia4 determination as to its applicabilify to the type of cigareite machine used by respondent. This argument must be rejected because it relates to facts not in the record. Only evidence in the record can be considered in reaching a decision. This principle, relating to the exclusiveness of the record, has been observed to be fiundamenial io a fair hearing' and is reflected in the Saint Paul Legislative Code Sec. 310.05(c-1). 72 DVM, Inc. v. State of Minnesota and City of Saint Paul (Ramsey County Court File No. C8- 988801). " F. Cooper, State Adminisfrafive Law 43031 (1965). Tfiis principte is reflected in the Saint Paul Legislative Code Sec. 310.05(c-'f ). � Council File # �tq - lG4 �RIGlNAL Presented By Referred To RESOLUTION CITY OF SAINT PAUL, MINNESOTA Green Sheet # 63513 1 Committee: Date 1 RESOLVED, that a fine of ($200.00) sha11 be assessed against the cigarette license held 2 by Grand 7 Saloon, Inc. d/b/a Grand 7 Saloon for the premises at 315 West 7�' Street, Saint Paul, 3 for the violation of Sale of Cigarettes to a Minor on September 28, 1998, in violation of Minn. 4 Stat. § 609.685 and Saint Paul Legislative Code § 324.07, and for the violation of Minn. Stat. 5 §46118, subd. 2, for having a tobacco vending machine on premises that were not restricted to 6 persons under the age of 18. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 FURTHER RESOLVED, that the costs of the Administrative Law Judge hearing shall be assessed against the licensee, in the amount of $2,393.30, based upon Saint Paul Legislative Code §§310.05(k)(i) and (vii), in that the defense of the licensee an this matter is hereby found and determined to be frivolous and without any credible basis, and that the offense involved Yhe sale of cigarettes to a minor. FURTHER RESOLVED, that the findings of fact, conclusions of law and memorandum contained in the AJL Report in this case, dated January 15, 1949, are expressly ratified and adopted as the written findings and conclusions of the Councii in this matter, and the recommendation of the ALJ is hereby adopted. This Resolution is based on the record of the proceedings before the ALJ, including the hearing on November 24, 1998, the documents and e�chibits introduced therein, and the delaberations of the Council in open session on February 3, 1999. i 2 3 4 A copy of this Resolution, as adopted, shall be sent by first class mail to the Administrafive Law Judge and to the licensee's attomey, Gerald Rummel. �RIGINAL o[4-I�y Adoption Certified by Council Secxetary BY: Appx By: Requested by Department of: By: Posm Approved by City AttoY� ✓, q By: / J Liy(�.� Appxoved by Mayor fos Suk�mission to Council BY: , Adopted by Council: Date � �� . �. � , `�� 99 -1 �4 DFPARTMFNT/OFFICElCOUNCIL Ow7E WIMTEO , c�t coun�� Feb. 08, 1999 GREEN SHEET No 63513 CON7ACT PERSON 8 PFIOIJE NMWIWb Inm9lData Councilmember Coleman ov.mrerto.rc�oR a'rm.� MUST BE ON CIXINCIL AGENQ4 BY @4T� ,iSSIGx February , 1999 crvurauEr ❑arvuenK tt uw�eEacaa � ! acunxe ortnot ❑ winxw�aaxcFSmt ❑ w�xry�smvinccTc ❑Yp�'ortiOrt�456rANn ❑ TOTAL # OF SIGNATURE PAGES (CLJP ALL LOCATIONS FOR SIGNATURE) CTION REQUESTm Finalizing City Council action taken Pebruary 3, 1999,concerning the Cigarette License held by Grand 7 Saloon, Inc., 315 West 7th Street, and adopting the Findings of Eact, Conclusions, and Recommendations of the Administrative Law Judge. RECOMMENDATIONApproYe A)or eject(R PERSONALSERYICECONTRACTSMUSiANSWEiITNEFOLIOWZNGQUESTIONS: 1. Has this pe�soNfi`m ever warked uMer a contract ta this depaRment? PLANNING COMMISSION YES NO CIBCAMMffTEE 2. HasthispetsoiuTimteverbeenacRyempbyee? CIVIL SERVICE COMMISSION vES No 3. Dces this persw�firm possess a sldll not nomallyposaessetl by eny curteM cdy employee? YES NO 4. istlrapersonlfiimataip�edvendoYl YES NO ENplain all yes answers on sepa2te sheet aM altach W green shee[ INITIATING PROBLEM ISSUE. WPORTUNITY (Wkq. What, When. Where. WhY) ADVANTAGESIFAPPROVED - DISADVANTAGESIFAPPROVED DiSADVANTAGES IF NOT APPROVED TOTALAMOUNTOFTRANSACT1011= COSTIREYENU68UD6EiED(CIRCLEON� YES NO FUNDING SOURCE ACTIVITY NUMBER FlNANCIFL INFORMATON (E%PWN) vrri�r.�r �Htu�vp�i��t�ey Clqrlan d4. RoAinsner, Jr., C�{r Annnrer CITY OF SAINT PAUL P'orm Caleraan, Mayar January 20, 1999 Mr. Gerald C. Rummel Rummel Law Firm, Ltd. 2300 Firstar Center 101 East Fifth Street Saint Pau1, Minnesota » 101 �� e� RE: In the Matter of the CiQarette License held by Grand 7 Saloon, Inc. dJb/a Grand 7 Saloon for the premises at 31 � West 7`h St. in St. Paul License ID No.: 001629� Our Fi1e Number: G98-0428 Dear Nir. Rummel: Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, February 3,1999, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opporiunity to file exceptions to the report with the City Clerk at any time during normal business hours. You may also present oral or written argument to the councii at the Hearing. No new evidence will be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Administrative Law Jud�e and on the azguments made and exceptions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its judgement and discretion. Sincerely, �� Virgini�Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hali Robert Kessier, Director, LIEP Christine Rozek, LIEP Ciri! Dirrsion .� • 400 City Hu(! TelepGone: 65l ?66-8710 15 West Ke!logg Blvd Factimile: 657 ?98-5679 � Saint Paul, Minnesota ii702 � � ( A • V �� CiQ`'•l�tC€e }:c...,_�._� ��3is:<<;?f \rOTICE OF COUNCIL HEARING Beriy Moran, community Organizer, West SeventhfFort Road Federation, 474 West Seventh St., St. Paul, MN 5�102 8-2111-11951-3 STATE OF MINNESOTA q OFFICE OF ADM{NISTRATIVE HEARfNGS FOR THE CITY OF ST. PAUL In the Matter of the Cigarette License FINDINGS OF FACT, Held by Grand 7 Saloon, Inc., d/b/a CONCLUSIONS OF LAW Grand 7 Saioon, for Premises Located at AND RECOMMENDATION 315 West 7� Street, License I.D. No. 0016295 The above-entitled matter came on for hearing before Administrative Law Judge Jon L. Lunde, acting as a hearing officer for the Saint Paul City Council, commencing at 1:30 p.m. on Tuesday, November 24, 1998, at the Saint Paul City Hall/Ramsey County Courthouse, 15 West Kellogg Boulevard, St. Paul, Minnesota. The hearing was held pursuant to a Notice of Hearing dated October 30, 1998. Virginia D. Palmer, Assistant St. Paul City Attorney, 400 City Hall, 15 West Keilogg Boulevard, St. Paul, Minnesoia 55102, appeared on behalfi of the City's Office of License, Inspections and Environmental Protection (LIEP). Gerald C. Rummel, Rummel Law Firm, 2300 Firstar Cent�r, 101 East 5` Street, St. Paul, Minnesota 55101, appeared on behaif o4 the Licensee, Grand 7 Saloon, fnc. The record closed on January 8, 1999, when the last authorized brief was filed. NOTICE This Report contains a recommendation and not a final decision. The final dec+sion will be made by the Saint Paul C+ty Council, which may affirm, reject, or modify the Findings and Conclusions contained herein. The council will consider the evidence in this case and the hearing examiner's recommended Findings of ract anrJ Conciusions, bu� w�ii r�ot c�rsi��r any fa��ual testimor,y net previously submitted to and considered by the hearing examiner. The respondent will have an opportunity to present oral or written arguments a{{eging error on the part of the hearing examiner in the application of the law or interpretation of the facts and may present argument related to the recommended adverse action. The council's decision as to what, if any, adverse action shall be taken will be by resolution under § 310.05 of the St. Paul Legislative Code. To ascertain when the councif wi11 consider this matter, the parties should contact the Saint Pauf City Council, Room 310, St. Paul City Hall/Ramsey County Courthouse, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102. qq-(G�. STATEMENT OF ISSUES � It is i{lega{ to sell tobacco products from vending machines except in faci{ities that cannot be entered at any time by persons younger than 18 years of age. The respondent was cited because it has a vending machine on its premises. Were persons younger than 18 years of age permitted to enter the respondenYs premises? II. The City regulates the sale of tobacco. Among other things, it prohibits the sale of tobacco to anyone under ihe age of 'f S. �id ihe resp-�ndent szii tobacco products to a minor from a vending machine on its premises? Ifl. At the hearing, respondent stated that its defense to the charges is that they are untrue. ln its post-hearing brief, respondent raised other defenses. Can the additional defenses be considered by the Saint Paul City Council and the administrative law judge? Based upon ail of the files, records and proceedings herein, the administrative law judge (ALJ) makes the foilowing: FINDINGS OF FACT 1. The respondent licensee, Grand 7 Saloon, Inc., is a corporation doing business as Grand 7 Saloon at 315 West 7` Street, St. Paul, Minnesota. The corporation was acquired by William Heine in 1980, and he is still the owner. Respondent has a cigaretteltobacco license which is valid untif March 31, 1998. 2. Kristina Schweinler is a Senior License Inspector for LIEP. She has been employed by the city for 16 years and is responsible, among other things, foT ihe eniorcement af laws �eEating to the safe oi tobac�o. Currentl,, LlEP is i;, the process of compieting an annual comp{iance check of ali 450 licensed tobacco vendors in the city. Under state !aw 4 the city must make an annuaf compliance check of tobacco licensees to monitor the sale of tobacco to minors. 3. Schweinler works wifh juveniles in determining if licensees are in compliance wifh applicable tobacco laws. Juveniles who participate in making ' Minn. Stat. § 461.18, subd. 2, adopted by Laws 1997c.227 § 6. Z St. Paul Legislative Code, Sec. 324.07. 3 City Ex. 2. ' Minn. Stat. § 461.12, subd. 5. 5 !d. 2 q�-��`I compliance checks must be "over the age of 15, but under the age of 18. ..." 6 The youths are provided by Youth Express, an organization that works with the city and others to provide jobs for juveniles. Juveniles working with Schweinler are paid $10.00 hourly. Prior to making their first compliance check, the youths receive training and instruction relating to iobacco laws, fair inspections, and required procedures from LIEP sfaff and the University of Minnesota. During their training, they act out compliance checks using a uniform skit. Wnen they are on duty, the youths have no money of their own and do not carry any identification or try to trick iicensees. If asked their age, they are required to give their real birth date, nothing else. 4. On September 28, 1998, Schweinler conducted a tobacco compliance check of the respondenYs estabiishment with Tyrone Lewis, a 15- year-old boy born January 5, 1983, who has worked with Youth Express for approximately five years. 5. On September 28, Schweinler and Lewis wese assigned to do approximately 10 tobacco compliance checks. Respondent was the third or forth establishment they checked that day. They arrived at approximately 4:00 p.m. Schweinler parked her car on Seventh Street and gave Tyrone $5.00 to enter the respondenYs estab4ishment and purchase a package of cigarettes. 6. Tyrone entered the establishment a4one using the front door. No one carded him when he entered or told him to leave; there were no signs stating that juveniles could not enter; and the respondent had no policy forbidding minors from entering. There were approximatefy 15 patrons in the saloon when Tyrone entered. They all knew one another and many had just returned from a golf tournament. There was only one employee on duty: The bartender, Robert Becker. It was Becker's third day on the job. 7. Tyrone proceeded to the back of the barroom where a cigarette machine, in p{ain view, was located. He attempted to purchase a package of cigarettes using his $5.00 bili, but the machine would not accept it. Consequently, Lewis walked over to the end of the bar and obtained change from the bartender. Lewis did not tell Becker that he needed change to buy cigarettes 2�d Becksr asked him no G�.:2stions. Secksr gave Le:^ds fvs $1 bi!!s, which Lewis used to buy a package of Camel cigarettes from the vending machine. When selling cigarettes, Becker allegedly had been told to check the purchaser's identification and to activate the vending machine if proper identification was shown to him. However, Becker did not ask Lewis for his birth date or any identification. 8. After Lewis purchased the cigarettes, he promptly left the bar and joined Schweinler in her car. Schweinler compieted a tobacco compliance check form, then returned to the sa{oon to identify the bartender. 6 Minn. Stat. § 461.12, subd. 5. Because Tyrone was 15 years of age at the time of the compiiance check, an argument couid be made that he was too young to participate in compliance checks because he was not "ove�' age 15. See, e.g., "Ove�', 67 C.J.S. 918. This issue was not raised or briefed by the parties and cannot, therefore, be considered by the ALJ. 3 q �—lc.� 9. After Schweinler entered the saloon, she walked to the rear of the bar near the cigarette machine and waited for Becker. When Becker waiked over to her, Schweinler told him that he had just sold tobacco products to a minor and she asked him for identification, which he provided. Customers became aware of the reasons for Schweinler's presence and were angry about it. At least one of them falsely stated that Tyrone had snuck in through an open service door in the rear ofi the saloon, and Becker added that he didn't push the remote errable Lewis to buy cigarettes from the machine. Two patrons said they would say that Tyrone pushed the macfiine's remote acfivation button, which was located on the back bar. The customers were quite hostile and stood in front of Schweinfer and yeNed at her while she was attempting to leave. 10. On October 6, 1998, the St. Paul City Attorney's Office issued a Notice of Violation to the respondent. The Notice stated that on September 28, 1998, an empioyee iliec�afly solc cigareties fo a minor undei �he age of 18 years in violation of state law and the St. Pau1 Legislative Code. The Notice stated that since this was the respondenYs first violaticn, LIEP would be recommending a$200 fine. On October 19, 1998, the respondent filed notice of its appeal. 11. On October 30, 1998, the Assistant City Attorney, Virginia D. Palmer, issued a Notice of Hearing, and on November 2, 1998, the Notice of Hearing was served on respondenYs counsel. In addition to the charges contained in the Notice of Violation, the Notice of Hearing included an additional charge stating Rdditiona!!y, the cigarette vending machine from which the cigarette sale was made was located in an open, accessible area within the licensed premises. The establishment is not posted to restrict entry to minors. Accordingly, the licensee is also in violation of Minn. Stat. § 461.18, subd. 2. Ai the hearing, respondent did not object to the additional charge, and when asked to state its defenses to the charges in this matter, the respondent stated only that they are untrue. 12. On September 28, 1998, the saloon did not have signs at the front door informing pzrsons under 18 years of age that ihey were not aliov✓ed to enter, and no employees checked the identification and age of patrons as they entered. Aiso, a rear entry service door near the cigarette machine was propped open, creating unobstructed access to the saloon. The saloon had no policy prohibiting minors from entering. 13. The cigarette machine in the saloon had a black and white sign 27 inches long and 6 inches high which stated that a photo I.D. was required for anyone under age 27. The sign also stated, "This is NOT a self-service, coin- operated vending machine." In somewhat smaller type, the sign warned persons ' Minn. Stat. § 609.685. 8 Section 324.07. 9 Ex. A. � �f.q, - �C � under age 18 of the consequences of trying to obtain cigarettes. The sign also said: This storage kiosk is equipped with a lock-out device and can be accessed only after showing proof of legal age to an authorized employee of this establishment. Please help us keep our children safe. Based upon the foregoing Findings ofi Fact, the Administrative Law Judge makes the foliowing: CONCLUSIONS 1. The Administrative Law Judge and the Saint Paul City Council have authority to consider the charges againsf the respond2nt ard tha pena!ty, if a^y, that should be paid the city pursuant to Sec. 310.05 of the St. Paul Legislative Code. 2. L�EP has complied with all relevant substantive and procedural legal requirements. 3. The respondent received adequate and timely notice of the hearing and of the charges against it. 4. LIEP has the burden of proof to establish, by a preponderance of the evidence, that the respondent violated state law and the St. Paul Legislative Code. 5. Under Sec. 324.11(b), the presumptive penalty for the first illegal sale of tobacco is a$200 fine. 6. For purposes of Sec. 324.11(a) of the Saint Paul Legislative Code, there are no substantial or compeiling reasons for deviating from the presumptive penairy in this case. 7. Because the respondent's violations involve the sale of tobacco to a minor, under Sec. 310.05(k)(vii) of the Saint Paul Legislative Code the respondent sh�uld be required te pay ali the costs of this proceeding. 8. Respondent violated Minn. Stat. § 609.685 and Sec. 324.07 of the Saint Paul Legislative Code on September 28, 1998, when it soid tobacco to a minor under 18 years of age from a cigarette vending machine. 9. Respondent violated Minn. Stat. § 461.18, subd. 2, on September 28, 1998, by selling tobacco products from a vending machine on premises that could be entered at any time by persons under 18 years of age. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: 70 In re Kaldahl, 418 N.W.2d 532, 535 (Minn. Ct. App. 1988). : .. 9,q RECOMMENDATION IT IS HEREBY RECOMMENDED: That the Saint Paul City Council order respondent to pay a$200 fine and the costs of this proceeding. Dated this /S � day ofi January, 1999 � � �`�.`°t`— N L. LUNDE Administrative Law Judge Reported: Taped, two tapes MEMORANDUM This proceeding primarily invoives credibiliry issues. The respondent called four witnesses to testify: The owner, the bartender, and two patrons, Gregory Lendway and 7errance Brennan. All but the owner had been in the saloon when Tyrone's purchase was made. The testimony of the three who were present is unpersuasive and cannot be credited. The first reason that iheir testimony cannot credited is that they each had a reason to be untruthful. Becker's reason would be the desire to avoid disciplinary action or other sanctions; Lendway's reason stems from the fact that Becker was a good friend of his wife's and that he was a regular at the saloon who operated a pull-tab business there; and Brennen because he is a regular patron and works for tne company that owns tne cigarette machine i� the sa(oon. Also, Lendway's testimony was unpersuasive, inconsistent and weak. When describing the events that franspired he first said that he saw Tyrone reach over from the end of the bar to get to the remote button to activate the cigarette machine. He then testified that the remote was next to the cash register but that Tyrone reached it from the end of the bar. The remote, however, would not have been reachable from the end of the bar if it was by the cash register. Furthermore, a patron like Tyrone wouid not have been able to reach the remote which was {ocated six to seven and 'h feet from the patrons' side of the bar and it is unlikely that Tyrone prostrated himself across the bar to get to the remote. When describing the atmosphere in the saloon after Schweinler entered, Lendway said there was a"big skirmish°. Th�n he said the patrons were just C� �{`t- t4 �l "razzing he�' and that he couldn't teil if they were hostile or just being funny. Lendway aiso said that there were six remates in the establishment but that he didn't know what the cigarette machine remote looked like. Brennen's testimony was equafly weak and unpersuasive. He testified that Tyrone reached around two patrons sitting at the bar and stretched across the bar to get to the remote. That is not piausibie because it would have been necessary for Tyrone to reach a distance of six or seven feet or more. On the other hand, the iestimony presented by Schweinler and Tyrone was consistent and persuasive. Neither of them had a reason to fabricate their testimony. For them, this was simply a routine compliance visit. The patrons, on the other hand, were angry about the compliance visit and threatened fo testify untruthfuiiy. The testimony of respondent's witnesses simply cannot be credited. If Becker honestly didn't press the remote button, the ALJ is persuaded that the remo:e devise was off and the cigarette machine was usable. 6ecker shouid have monitored Tyrone's actions and prevented a sale to him. Il. In its post-hearing brief, respondent asserted defenses not previously raised. The first defense is that the Notice of Hearing does not state the adverse action proposed for respondenYs violation of Minn. Sfat. § 461.18. RespondenYs position apparentiy is that the aileged violation of Minn. Stat. § 461.18 must be dismissed because it wasn't listed in the Notice of Violation. The Saint Pauf Legisiative Code does not preciude the city from adding new charges against a �icensee in the Notice of Hearing. It only requires notice of the place, days and time of the hearing; the issues involved; and the grounds for adverse action." The Notice of Hearing contained aH that information. Because the code does not prohibit the amendment of a Notice of Violation, if the Notice of Hearing is otherwise proper as to form, content and execution, the ALJ is persuaded that the Notice of Hearing may inciude charges not set forth in the Notice of Violation when the new charges relate to the same event, transaction, or occurrence and the �icensee receives notice of the new charge and an opportunity to defend, as respondent had here. Assuming it were true that the Notice of Hearing cannot include an additional charge, that issue cannot be considered because it was not raised at the hearing. Although no pfeadings are required of a respondent in cases like this, respondent cannot raise issues not articulated when asked to state its defenses at the comrimencement of the hearing. Furthermore, respondent must do more than merely raise legal issues. Here, respandent presented no authority or theory supporting its apparent view that the charges in the Notice of Violation cannot be amended. Respondent also failed to show that it was prejudiced by the amendment. Since an additionai fine was not proposed by LIEP, respondent can hardly claim prejudice. " Saint Paul Legisiative Code Sec. 310.05(b). 7 q.�i-��{ Respondent raised another issue not identified at the time of the hearing. In its brief, respondent alleged that the city had agreed, in another case,' not to enforce Section 461.18 pending a judicia4 determination as to its applicabilify to the type of cigareite machine used by respondent. This argument must be rejected because it relates to facts not in the record. Only evidence in the record can be considered in reaching a decision. This principle, relating to the exclusiveness of the record, has been observed to be fiundamenial io a fair hearing' and is reflected in the Saint Paul Legislative Code Sec. 310.05(c-1). 72 DVM, Inc. v. State of Minnesota and City of Saint Paul (Ramsey County Court File No. C8- 988801). " F. Cooper, State Adminisfrafive Law 43031 (1965). Tfiis principte is reflected in the Saint Paul Legislative Code Sec. 310.05(c-'f ). � Council File # �tq - lG4 �RIGlNAL Presented By Referred To RESOLUTION CITY OF SAINT PAUL, MINNESOTA Green Sheet # 63513 1 Committee: Date 1 RESOLVED, that a fine of ($200.00) sha11 be assessed against the cigarette license held 2 by Grand 7 Saloon, Inc. d/b/a Grand 7 Saloon for the premises at 315 West 7�' Street, Saint Paul, 3 for the violation of Sale of Cigarettes to a Minor on September 28, 1998, in violation of Minn. 4 Stat. § 609.685 and Saint Paul Legislative Code § 324.07, and for the violation of Minn. Stat. 5 §46118, subd. 2, for having a tobacco vending machine on premises that were not restricted to 6 persons under the age of 18. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 FURTHER RESOLVED, that the costs of the Administrative Law Judge hearing shall be assessed against the licensee, in the amount of $2,393.30, based upon Saint Paul Legislative Code §§310.05(k)(i) and (vii), in that the defense of the licensee an this matter is hereby found and determined to be frivolous and without any credible basis, and that the offense involved Yhe sale of cigarettes to a minor. FURTHER RESOLVED, that the findings of fact, conclusions of law and memorandum contained in the AJL Report in this case, dated January 15, 1949, are expressly ratified and adopted as the written findings and conclusions of the Councii in this matter, and the recommendation of the ALJ is hereby adopted. This Resolution is based on the record of the proceedings before the ALJ, including the hearing on November 24, 1998, the documents and e�chibits introduced therein, and the delaberations of the Council in open session on February 3, 1999. i 2 3 4 A copy of this Resolution, as adopted, shall be sent by first class mail to the Administrafive Law Judge and to the licensee's attomey, Gerald Rummel. �RIGINAL o[4-I�y Adoption Certified by Council Secxetary BY: Appx By: Requested by Department of: By: Posm Approved by City AttoY� ✓, q By: / J Liy(�.� Appxoved by Mayor fos Suk�mission to Council BY: , Adopted by Council: Date � �� . �. � , `�� 99 -1 �4 DFPARTMFNT/OFFICElCOUNCIL Ow7E WIMTEO , c�t coun�� Feb. 08, 1999 GREEN SHEET No 63513 CON7ACT PERSON 8 PFIOIJE NMWIWb Inm9lData Councilmember Coleman ov.mrerto.rc�oR a'rm.� MUST BE ON CIXINCIL AGENQ4 BY @4T� ,iSSIGx February , 1999 crvurauEr ❑arvuenK tt uw�eEacaa � ! acunxe ortnot ❑ winxw�aaxcFSmt ❑ w�xry�smvinccTc ❑Yp�'ortiOrt�456rANn ❑ TOTAL # OF SIGNATURE PAGES (CLJP ALL LOCATIONS FOR SIGNATURE) CTION REQUESTm Finalizing City Council action taken Pebruary 3, 1999,concerning the Cigarette License held by Grand 7 Saloon, Inc., 315 West 7th Street, and adopting the Findings of Eact, Conclusions, and Recommendations of the Administrative Law Judge. RECOMMENDATIONApproYe A)or eject(R PERSONALSERYICECONTRACTSMUSiANSWEiITNEFOLIOWZNGQUESTIONS: 1. Has this pe�soNfi`m ever warked uMer a contract ta this depaRment? PLANNING COMMISSION YES NO CIBCAMMffTEE 2. HasthispetsoiuTimteverbeenacRyempbyee? CIVIL SERVICE COMMISSION vES No 3. Dces this persw�firm possess a sldll not nomallyposaessetl by eny curteM cdy employee? YES NO 4. istlrapersonlfiimataip�edvendoYl YES NO ENplain all yes answers on sepa2te sheet aM altach W green shee[ INITIATING PROBLEM ISSUE. WPORTUNITY (Wkq. What, When. Where. WhY) ADVANTAGESIFAPPROVED - DISADVANTAGESIFAPPROVED DiSADVANTAGES IF NOT APPROVED TOTALAMOUNTOFTRANSACT1011= COSTIREYENU68UD6EiED(CIRCLEON� YES NO FUNDING SOURCE ACTIVITY NUMBER FlNANCIFL INFORMATON (E%PWN) vrri�r.�r �Htu�vp�i��t�ey Clqrlan d4. RoAinsner, Jr., C�{r Annnrer CITY OF SAINT PAUL P'orm Caleraan, Mayar January 20, 1999 Mr. Gerald C. Rummel Rummel Law Firm, Ltd. 2300 Firstar Center 101 East Fifth Street Saint Pau1, Minnesota » 101 �� e� RE: In the Matter of the CiQarette License held by Grand 7 Saloon, Inc. dJb/a Grand 7 Saloon for the premises at 31 � West 7`h St. in St. Paul License ID No.: 001629� Our Fi1e Number: G98-0428 Dear Nir. Rummel: Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, February 3,1999, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opporiunity to file exceptions to the report with the City Clerk at any time during normal business hours. You may also present oral or written argument to the councii at the Hearing. No new evidence will be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Administrative Law Jud�e and on the azguments made and exceptions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its judgement and discretion. Sincerely, �� Virgini�Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hali Robert Kessier, Director, LIEP Christine Rozek, LIEP Ciri! Dirrsion .� • 400 City Hu(! TelepGone: 65l ?66-8710 15 West Ke!logg Blvd Factimile: 657 ?98-5679 � Saint Paul, Minnesota ii702 � � ( A • V �� CiQ`'•l�tC€e }:c...,_�._� ��3is:<<;?f \rOTICE OF COUNCIL HEARING Beriy Moran, community Organizer, West SeventhfFort Road Federation, 474 West Seventh St., St. Paul, MN 5�102 8-2111-11951-3 STATE OF MINNESOTA q OFFICE OF ADM{NISTRATIVE HEARfNGS FOR THE CITY OF ST. PAUL In the Matter of the Cigarette License FINDINGS OF FACT, Held by Grand 7 Saloon, Inc., d/b/a CONCLUSIONS OF LAW Grand 7 Saioon, for Premises Located at AND RECOMMENDATION 315 West 7� Street, License I.D. No. 0016295 The above-entitled matter came on for hearing before Administrative Law Judge Jon L. Lunde, acting as a hearing officer for the Saint Paul City Council, commencing at 1:30 p.m. on Tuesday, November 24, 1998, at the Saint Paul City Hall/Ramsey County Courthouse, 15 West Kellogg Boulevard, St. Paul, Minnesota. The hearing was held pursuant to a Notice of Hearing dated October 30, 1998. Virginia D. Palmer, Assistant St. Paul City Attorney, 400 City Hall, 15 West Keilogg Boulevard, St. Paul, Minnesoia 55102, appeared on behalfi of the City's Office of License, Inspections and Environmental Protection (LIEP). Gerald C. Rummel, Rummel Law Firm, 2300 Firstar Cent�r, 101 East 5` Street, St. Paul, Minnesota 55101, appeared on behaif o4 the Licensee, Grand 7 Saloon, fnc. The record closed on January 8, 1999, when the last authorized brief was filed. NOTICE This Report contains a recommendation and not a final decision. The final dec+sion will be made by the Saint Paul C+ty Council, which may affirm, reject, or modify the Findings and Conclusions contained herein. The council will consider the evidence in this case and the hearing examiner's recommended Findings of ract anrJ Conciusions, bu� w�ii r�ot c�rsi��r any fa��ual testimor,y net previously submitted to and considered by the hearing examiner. The respondent will have an opportunity to present oral or written arguments a{{eging error on the part of the hearing examiner in the application of the law or interpretation of the facts and may present argument related to the recommended adverse action. The council's decision as to what, if any, adverse action shall be taken will be by resolution under § 310.05 of the St. Paul Legislative Code. To ascertain when the councif wi11 consider this matter, the parties should contact the Saint Pauf City Council, Room 310, St. Paul City Hall/Ramsey County Courthouse, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102. qq-(G�. STATEMENT OF ISSUES � It is i{lega{ to sell tobacco products from vending machines except in faci{ities that cannot be entered at any time by persons younger than 18 years of age. The respondent was cited because it has a vending machine on its premises. Were persons younger than 18 years of age permitted to enter the respondenYs premises? II. The City regulates the sale of tobacco. Among other things, it prohibits the sale of tobacco to anyone under ihe age of 'f S. �id ihe resp-�ndent szii tobacco products to a minor from a vending machine on its premises? Ifl. At the hearing, respondent stated that its defense to the charges is that they are untrue. ln its post-hearing brief, respondent raised other defenses. Can the additional defenses be considered by the Saint Paul City Council and the administrative law judge? Based upon ail of the files, records and proceedings herein, the administrative law judge (ALJ) makes the foilowing: FINDINGS OF FACT 1. The respondent licensee, Grand 7 Saloon, Inc., is a corporation doing business as Grand 7 Saloon at 315 West 7` Street, St. Paul, Minnesota. The corporation was acquired by William Heine in 1980, and he is still the owner. Respondent has a cigaretteltobacco license which is valid untif March 31, 1998. 2. Kristina Schweinler is a Senior License Inspector for LIEP. She has been employed by the city for 16 years and is responsible, among other things, foT ihe eniorcement af laws �eEating to the safe oi tobac�o. Currentl,, LlEP is i;, the process of compieting an annual comp{iance check of ali 450 licensed tobacco vendors in the city. Under state !aw 4 the city must make an annuaf compliance check of tobacco licensees to monitor the sale of tobacco to minors. 3. Schweinler works wifh juveniles in determining if licensees are in compliance wifh applicable tobacco laws. Juveniles who participate in making ' Minn. Stat. § 461.18, subd. 2, adopted by Laws 1997c.227 § 6. Z St. Paul Legislative Code, Sec. 324.07. 3 City Ex. 2. ' Minn. Stat. § 461.12, subd. 5. 5 !d. 2 q�-��`I compliance checks must be "over the age of 15, but under the age of 18. ..." 6 The youths are provided by Youth Express, an organization that works with the city and others to provide jobs for juveniles. Juveniles working with Schweinler are paid $10.00 hourly. Prior to making their first compliance check, the youths receive training and instruction relating to iobacco laws, fair inspections, and required procedures from LIEP sfaff and the University of Minnesota. During their training, they act out compliance checks using a uniform skit. Wnen they are on duty, the youths have no money of their own and do not carry any identification or try to trick iicensees. If asked their age, they are required to give their real birth date, nothing else. 4. On September 28, 1998, Schweinler conducted a tobacco compliance check of the respondenYs estabiishment with Tyrone Lewis, a 15- year-old boy born January 5, 1983, who has worked with Youth Express for approximately five years. 5. On September 28, Schweinler and Lewis wese assigned to do approximately 10 tobacco compliance checks. Respondent was the third or forth establishment they checked that day. They arrived at approximately 4:00 p.m. Schweinler parked her car on Seventh Street and gave Tyrone $5.00 to enter the respondenYs estab4ishment and purchase a package of cigarettes. 6. Tyrone entered the establishment a4one using the front door. No one carded him when he entered or told him to leave; there were no signs stating that juveniles could not enter; and the respondent had no policy forbidding minors from entering. There were approximatefy 15 patrons in the saloon when Tyrone entered. They all knew one another and many had just returned from a golf tournament. There was only one employee on duty: The bartender, Robert Becker. It was Becker's third day on the job. 7. Tyrone proceeded to the back of the barroom where a cigarette machine, in p{ain view, was located. He attempted to purchase a package of cigarettes using his $5.00 bili, but the machine would not accept it. Consequently, Lewis walked over to the end of the bar and obtained change from the bartender. Lewis did not tell Becker that he needed change to buy cigarettes 2�d Becksr asked him no G�.:2stions. Secksr gave Le:^ds fvs $1 bi!!s, which Lewis used to buy a package of Camel cigarettes from the vending machine. When selling cigarettes, Becker allegedly had been told to check the purchaser's identification and to activate the vending machine if proper identification was shown to him. However, Becker did not ask Lewis for his birth date or any identification. 8. After Lewis purchased the cigarettes, he promptly left the bar and joined Schweinler in her car. Schweinler compieted a tobacco compliance check form, then returned to the sa{oon to identify the bartender. 6 Minn. Stat. § 461.12, subd. 5. Because Tyrone was 15 years of age at the time of the compiiance check, an argument couid be made that he was too young to participate in compliance checks because he was not "ove�' age 15. See, e.g., "Ove�', 67 C.J.S. 918. This issue was not raised or briefed by the parties and cannot, therefore, be considered by the ALJ. 3 q �—lc.� 9. After Schweinler entered the saloon, she walked to the rear of the bar near the cigarette machine and waited for Becker. When Becker waiked over to her, Schweinler told him that he had just sold tobacco products to a minor and she asked him for identification, which he provided. Customers became aware of the reasons for Schweinler's presence and were angry about it. At least one of them falsely stated that Tyrone had snuck in through an open service door in the rear ofi the saloon, and Becker added that he didn't push the remote errable Lewis to buy cigarettes from the machine. Two patrons said they would say that Tyrone pushed the macfiine's remote acfivation button, which was located on the back bar. The customers were quite hostile and stood in front of Schweinfer and yeNed at her while she was attempting to leave. 10. On October 6, 1998, the St. Paul City Attorney's Office issued a Notice of Violation to the respondent. The Notice stated that on September 28, 1998, an empioyee iliec�afly solc cigareties fo a minor undei �he age of 18 years in violation of state law and the St. Pau1 Legislative Code. The Notice stated that since this was the respondenYs first violaticn, LIEP would be recommending a$200 fine. On October 19, 1998, the respondent filed notice of its appeal. 11. On October 30, 1998, the Assistant City Attorney, Virginia D. Palmer, issued a Notice of Hearing, and on November 2, 1998, the Notice of Hearing was served on respondenYs counsel. In addition to the charges contained in the Notice of Violation, the Notice of Hearing included an additional charge stating Rdditiona!!y, the cigarette vending machine from which the cigarette sale was made was located in an open, accessible area within the licensed premises. The establishment is not posted to restrict entry to minors. Accordingly, the licensee is also in violation of Minn. Stat. § 461.18, subd. 2. Ai the hearing, respondent did not object to the additional charge, and when asked to state its defenses to the charges in this matter, the respondent stated only that they are untrue. 12. On September 28, 1998, the saloon did not have signs at the front door informing pzrsons under 18 years of age that ihey were not aliov✓ed to enter, and no employees checked the identification and age of patrons as they entered. Aiso, a rear entry service door near the cigarette machine was propped open, creating unobstructed access to the saloon. The saloon had no policy prohibiting minors from entering. 13. The cigarette machine in the saloon had a black and white sign 27 inches long and 6 inches high which stated that a photo I.D. was required for anyone under age 27. The sign also stated, "This is NOT a self-service, coin- operated vending machine." In somewhat smaller type, the sign warned persons ' Minn. Stat. § 609.685. 8 Section 324.07. 9 Ex. A. � �f.q, - �C � under age 18 of the consequences of trying to obtain cigarettes. The sign also said: This storage kiosk is equipped with a lock-out device and can be accessed only after showing proof of legal age to an authorized employee of this establishment. Please help us keep our children safe. Based upon the foregoing Findings ofi Fact, the Administrative Law Judge makes the foliowing: CONCLUSIONS 1. The Administrative Law Judge and the Saint Paul City Council have authority to consider the charges againsf the respond2nt ard tha pena!ty, if a^y, that should be paid the city pursuant to Sec. 310.05 of the St. Paul Legislative Code. 2. L�EP has complied with all relevant substantive and procedural legal requirements. 3. The respondent received adequate and timely notice of the hearing and of the charges against it. 4. LIEP has the burden of proof to establish, by a preponderance of the evidence, that the respondent violated state law and the St. Paul Legislative Code. 5. Under Sec. 324.11(b), the presumptive penalty for the first illegal sale of tobacco is a$200 fine. 6. For purposes of Sec. 324.11(a) of the Saint Paul Legislative Code, there are no substantial or compeiling reasons for deviating from the presumptive penairy in this case. 7. Because the respondent's violations involve the sale of tobacco to a minor, under Sec. 310.05(k)(vii) of the Saint Paul Legislative Code the respondent sh�uld be required te pay ali the costs of this proceeding. 8. Respondent violated Minn. Stat. § 609.685 and Sec. 324.07 of the Saint Paul Legislative Code on September 28, 1998, when it soid tobacco to a minor under 18 years of age from a cigarette vending machine. 9. Respondent violated Minn. Stat. § 461.18, subd. 2, on September 28, 1998, by selling tobacco products from a vending machine on premises that could be entered at any time by persons under 18 years of age. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: 70 In re Kaldahl, 418 N.W.2d 532, 535 (Minn. Ct. App. 1988). : .. 9,q RECOMMENDATION IT IS HEREBY RECOMMENDED: That the Saint Paul City Council order respondent to pay a$200 fine and the costs of this proceeding. Dated this /S � day ofi January, 1999 � � �`�.`°t`— N L. LUNDE Administrative Law Judge Reported: Taped, two tapes MEMORANDUM This proceeding primarily invoives credibiliry issues. The respondent called four witnesses to testify: The owner, the bartender, and two patrons, Gregory Lendway and 7errance Brennan. All but the owner had been in the saloon when Tyrone's purchase was made. The testimony of the three who were present is unpersuasive and cannot be credited. The first reason that iheir testimony cannot credited is that they each had a reason to be untruthful. Becker's reason would be the desire to avoid disciplinary action or other sanctions; Lendway's reason stems from the fact that Becker was a good friend of his wife's and that he was a regular at the saloon who operated a pull-tab business there; and Brennen because he is a regular patron and works for tne company that owns tne cigarette machine i� the sa(oon. Also, Lendway's testimony was unpersuasive, inconsistent and weak. When describing the events that franspired he first said that he saw Tyrone reach over from the end of the bar to get to the remote button to activate the cigarette machine. He then testified that the remote was next to the cash register but that Tyrone reached it from the end of the bar. The remote, however, would not have been reachable from the end of the bar if it was by the cash register. Furthermore, a patron like Tyrone wouid not have been able to reach the remote which was {ocated six to seven and 'h feet from the patrons' side of the bar and it is unlikely that Tyrone prostrated himself across the bar to get to the remote. When describing the atmosphere in the saloon after Schweinler entered, Lendway said there was a"big skirmish°. Th�n he said the patrons were just C� �{`t- t4 �l "razzing he�' and that he couldn't teil if they were hostile or just being funny. Lendway aiso said that there were six remates in the establishment but that he didn't know what the cigarette machine remote looked like. Brennen's testimony was equafly weak and unpersuasive. He testified that Tyrone reached around two patrons sitting at the bar and stretched across the bar to get to the remote. That is not piausibie because it would have been necessary for Tyrone to reach a distance of six or seven feet or more. On the other hand, the iestimony presented by Schweinler and Tyrone was consistent and persuasive. Neither of them had a reason to fabricate their testimony. For them, this was simply a routine compliance visit. The patrons, on the other hand, were angry about the compliance visit and threatened fo testify untruthfuiiy. The testimony of respondent's witnesses simply cannot be credited. If Becker honestly didn't press the remote button, the ALJ is persuaded that the remo:e devise was off and the cigarette machine was usable. 6ecker shouid have monitored Tyrone's actions and prevented a sale to him. Il. In its post-hearing brief, respondent asserted defenses not previously raised. The first defense is that the Notice of Hearing does not state the adverse action proposed for respondenYs violation of Minn. Sfat. § 461.18. RespondenYs position apparentiy is that the aileged violation of Minn. Stat. § 461.18 must be dismissed because it wasn't listed in the Notice of Violation. The Saint Pauf Legisiative Code does not preciude the city from adding new charges against a �icensee in the Notice of Hearing. It only requires notice of the place, days and time of the hearing; the issues involved; and the grounds for adverse action." The Notice of Hearing contained aH that information. Because the code does not prohibit the amendment of a Notice of Violation, if the Notice of Hearing is otherwise proper as to form, content and execution, the ALJ is persuaded that the Notice of Hearing may inciude charges not set forth in the Notice of Violation when the new charges relate to the same event, transaction, or occurrence and the �icensee receives notice of the new charge and an opportunity to defend, as respondent had here. Assuming it were true that the Notice of Hearing cannot include an additional charge, that issue cannot be considered because it was not raised at the hearing. Although no pfeadings are required of a respondent in cases like this, respondent cannot raise issues not articulated when asked to state its defenses at the comrimencement of the hearing. Furthermore, respondent must do more than merely raise legal issues. Here, respandent presented no authority or theory supporting its apparent view that the charges in the Notice of Violation cannot be amended. Respondent also failed to show that it was prejudiced by the amendment. Since an additionai fine was not proposed by LIEP, respondent can hardly claim prejudice. " Saint Paul Legisiative Code Sec. 310.05(b). 7 q.�i-��{ Respondent raised another issue not identified at the time of the hearing. In its brief, respondent alleged that the city had agreed, in another case,' not to enforce Section 461.18 pending a judicia4 determination as to its applicabilify to the type of cigareite machine used by respondent. This argument must be rejected because it relates to facts not in the record. Only evidence in the record can be considered in reaching a decision. This principle, relating to the exclusiveness of the record, has been observed to be fiundamenial io a fair hearing' and is reflected in the Saint Paul Legislative Code Sec. 310.05(c-1). 72 DVM, Inc. v. State of Minnesota and City of Saint Paul (Ramsey County Court File No. C8- 988801). " F. Cooper, State Adminisfrafive Law 43031 (1965). Tfiis principte is reflected in the Saint Paul Legislative Code Sec. 310.05(c-'f ). �