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88-1428 WHITE - GTY CLERK ��VnCll g$-.�4ag PINK - FINANCE G I TY O F SA I NT PA U L CANARV - DEVARTMEN7 BI.UE - MAVOR File NO. City Attny/PBB • • --- � _ ouncil Resolution '"j��,, Presented By �� _.�� Referred To Committee: Date Out of Committee By Date RESOLVED, that the �'don-Intoxicating Off Sale Malt Liquor and Grocery licenses hel� b�T roger t��aunders dba the Pelham Niarket for the premises at 71� Pelizam �?oulevard in Saint Paul are hereby suspended for a period of three consecutive days . This suspension shall commence on September 12, 1988 This Resolution is based on the record of the proceedings before the Administrative Law Judge, including the hearing on June 24, 1988, the documents and exhibits introduced therein, the remarks offered on behalf of th.e License Division at the hearing on August 16 , 1988 , and the deliberation of the Council in open session. The Council adopts the findings of fact and conclusions of law of the Administrative Law Judge contained in her report dated July 7 , 1988 , a copy of which is attached hereto and made part of this Resolution. A coPy of this Resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and to the licenseholder. COUNCIL MEMBERS Yeas Nays Requested by Department of: Dimond �og [n Favor coswitz Rettman �he1be� _ Against BY Sonnen �— AUG 3 C 1988 Form Approved by City Attorney Adopted by Council: Date Certified a sed by Council Secretary By�%l'.titt..� �'� �2'I/I.CT�[.l�- B�Z3i�'jg � By Approved avor: Date _ � Approved by Mayor for Submission to Council By BY PU4�.ISl�EtI �� 1 � 1�$8 �.,..w .. .... .. .. ...,. .. . ._ :. ... ....... ..._.. __ _ _ .. . ... . . . . - ..... , _... ,. _ . ... . - . . . City-89-005-CG . - 53-2101-2544-6 °� BB - i�a� � � STATE OF MINNESOTA • OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL In the Mat�ter of FINDINGS OF FACT, the LicensAs of the COrJCLUSIONS, AND Pelham i�tar�ket RECOMMENDATION : The above-entitled matter came on f or hearing bef ore Administrative Law Judge Carol Grant on June 24, 1988, at 9: 00 a.m. , Seventh Floor, Ramsey County Courthouse, St. Paul , Minnesota. The hearing in this matter concluded on June 24, 1988. Phili� Byrne, Assistant City Attorney, Attorney f or the City of St. F�ul-License Inspector, 647 Citp Hall , St. Paul , MN 55102, appeared on behali of the City of St. Paul . No appAarance was made by Roger Maunders, or any representative of Pelham Market. This �eport is submitted to the St . Paul City Council p�zrsuant �o Section 310. 05 ( c-1 ) oi the St. Faul Legislative Code. STATEMENT OF ISSUE The issue tc, be determined in this proceeding is whether sanctions shoul� be imposed ugon the licenseholder on the ground that a cle��k in th� Pelham Market sold 3. 2 beer to a person unc�er the a�e of twenty-one years in violation of Minn. Stat. 340A. 503 Subd. 2 and St. Paul Legis. Code 4I0. 04(a) . - FINDINGS OF FACT . 1. �n March 31 , 1988, at 5 :45 p.m. , St. Paul Police keserve Officer Jody Hummel entered the Pelham Grocery Store and purchased a six-pack of Schmidt beer. Ms . Hummel ' s birth date is June 1 , 19n8. She was nineteen vears old at the time of the g�archase. - 2 . T'_zv s�lesperson in the grocpr� store did not ask Ms . �-i�ar�me? anc questi:,ns about her aqe before allowing her to �urch�$e t�z� beer. There was one other person in the store at the time. ��.�� J U L 14 1988 �i�� ,�'��.��''` , ,-�<'r� . � ;��L, _. . _ . _ _ , . ' 3 . On April 22, I988, the licen_�:�e was sent ,3 letter . advising him that the City proposed :,:; take adverse action based upon the P��ae•ch 31 , 1988 incident. This letter wa� received by � the licens��. C/�_/�aZ� � 4. 0:� May 23 , 1988, a Notice oi Hearing was mailed to the licensee �t the same address as the April 22 , 1988 notification. 5. c�:z June 23, 1988, Assistant City �ttorney Philip Byrne �.alled the �icensee to advise him about a room change f or the hearing. 6. Tzz licensee did not appear at the hearing on Jun� 24, 1988. Af t�r waitir._q f or him to appear, the Assistant City l�ttorney c�lled him. The licensee stat�d that he was busy the week ot th�� hearing, had two weddings to work on, hac� discussed with his clerk procedures for checking on identification, and would not :�e attending the hearing. B�3sed upon the f oregoing Findings of Fact , the rdministr�tive Law �udge makes the following: CONCLUSIONS l. T"�� .'�dministrative Law Judge and the St. Paul City • Cuuncil h�.ve jurisdiction over this matter pursuant to Minn. Stat. 340A. 503 , Subd. 2 and St. Paul Legis . Code 410. 04(a) . The P�T�tice of H�aring ��as proper in this matter �.nd all procedural requirements oi la�a or rule have, been fulf illed by the City. 2. St. Paul Legis. Code Sec. �10. 04(.a? provicies : "No intoxicati�Zq malt liquor shall be sold or furnished for any purpose wha�ever to any person unde•r twenty-one years of ag@. . . " . - 3 . T71� iicensee' s clerk sold non-intoxicatiny malt liquor to a persor. under twenty-one years of a_qe. �. The licensee, through its agent , has violated St. Paul Legis . COde SeC. 410. 04(a) . Based u�an the f ore�oing Conclusions, the Administrative Law Judge makes th� f ollowing: RECOMI�iENDATION IT I� HEF.EBY RECOMMEPJDED that the City Council take disci�lir.�ry action against the licens�e �s �ollows : 1 . `.�'l.Z�t the Council impose five eonsecutive d�.ys ' �L��eaz�ion ot the Pelh��rn M��rket license for the sale of non-�n'tosicating malt liruor. :.x.•':u .^iu ..i ...:r � . . -+�:Y .+.uc...�-....��. ...s.�«........+..+.�s.;.s��-a�w:........:....:. .... .. .m. � „ .,.i . �:�tc�+n'.�-��... ,.., . v c ...r�.,.........r.. �.._ � � 2. A3 �921CI t or f��ilurG to give advance notice of non- • ' a�pzar�t�ce at the he�ring, and to reimburse the City f or expenses caused thereby, the. licensee shall pay a , . ' f ine of $250. 00. ' ,. , �-�� Dated t�zis 7th day of July, 1988. i �Ur�-C 4�i��c� ,� � . Carol Grant Administrative Law Judge Fursuant t� Ch�pter 14. 62, a copy of the Decision and Order in the above-entitled matter shall be served upon each party or the party' s re�resentative and the Administrative Law Judge by first class mail. �' � � �� ' �.o,��,�, 4��.-_hpk•'..^ �� •. ( ' _ `'�►i�;;�;;'� RECEIVED STATE O F M I N N ESOTA JUL 2 71988 OFFICE OF ADMINISTRATIVE HEARINGS CITY CLERK FIFTH FLOOR,FLOUR EXCHANGE BUILDING 310 FOURTH AVENUE SOUTH MINNEAPOLIS,MINNESOTA 55415 (612)341-7600 July 26, 1988 St. Paul City Council Attn: Albert B. Olson City Clerk 386 City Hall St. Paul, MN 55102 Re: Liquor License of Pelham Market; OAH Docket Nos. CITY-89-005-CG and 53-2101-2544-6. Dear Mr. Olson: Enclosed please find the official record in the above-referenced matter and I am closing our file in this matter. Sincerely, . v.�� Virginia R. Halling OAH Secretary Enclosures AN EQUAL OPPORTUNITY EMPLOYER � �'��a� � LAW OFFICES . ' I�:URzMAN, GRANT, , BI,UTH &L B��RT�F,R A PARTNERSHIP OF PROFE5SIONAL CORPORATIONS ; 2,�(14 Stevens Avenue South �ECE�V�G' Minneapolis,Minnesota 5540� �si��s�i-soo� : J U L 1 � 19�� Ap�INISTRATIV� Marc G. Rurcman ��to Carol Grant Jame"s�i:7�I�ariaTian Linda M. Ojala Joseph P. Bluth James E. Moon RECEI�IED �B. Barker (507)387-5661 JUL 2 71988 J��.�y 1 a, 19 s a CITY CLERK George Beck Office of Administrative Hearings Fifth Floor, Flour Exchange Building 310 Fourth Avenue South Minneapolis, MN 55415 Re; In the Matter of the Licenses of Gabe' s by the Park; In the Matter of the Licenses of Pelham Market Dear George: Enclosed please find four copies of the Findings of Fact, Conclusions, and Recommendation, and Memorandum in the Gabe' s matter, and four copies of the Findings of Fact, Conclusions, and Recomendation in the Pelham Market matter. Sincerely, (�� Carol Grant Administrative Law Judge CG/tw enc. • Attorneye admitted to practice in Florlda,Minnesota and New York ., ,.. �� /1 � 53t2101-2544C6 �� G�y� �'� �,,�.� RECEIVED G �� r ��. , STATE OF MINNESOTA ,; � JUL 141988 ��ICE QF ADMINISTRATIVE HEARINGS ;�� CITY CLERK FOR THE CITY OF ST. PAUL �__._�/ � i In the Matter of FINDINGS OF FACT, the Licenses of the CONCLUSION3, AND Pelham Market RECOMMENDATION The above-entitled matter came on f or hearing bef ore Administrative Law Judqe Carol Grant on June 24, 1988. a� °-^" a.m. , Seventh Floor, Ramsey County �'��^}'--� Minnesota. The hearing in this 1988. Philip Byrne, Assistan � , a City of St. Paul-License In � � � 6'' � � 55102, appeared on behalf oi � y � ,�• � f � w w appearance was made by RogeY � C� o �, � ' -. � o � � Pelham Market. W �;1 �o o � - , �� x F o N � � a� �� , o This Report is submittea N �`� � � �,• a. o � ° pursuant to Section 314. 05 ( c N � �n �•� �� N � � ] C o d e. m t� ��, �� o c a o � °' � z � s+' c� �� a r a � (�.,� o C�+ c� �,s� o r 6 c � cd � �� d F o STATEMEi � � �� '� �,�,_, °� o 0 �1 � a�i '� cd � o ', �w The issue to be determined �, �n � ''� �a F sanctions should be imposed upo. � � .�,� � 6 z z that a clerk in the Pelham Mark� � �, �, � . � H �� under the age of twenty-one year o y � � �,a � �' 340A.503 Subd. 2 and St. Paul Le � °' � o . � � � �'� '� � a � � FINDINGS o�o yr+ � � 1. On March 31, 1988, at 5:S � ��i� ��x Reserve Officer Jody Hummel entere U ., � purchased a six-pack of Schmidt be �� r, a ��, is June 1 , 1968. She was nineteen �, o •�' � �v purchase. � � � � �o� ,c x 2. The salesperson in the gro� � ,� v ° ��a '�W Hummel any questions about her aqe 2 � � � � p � � W o o�� W�, purchase the beer. There was one ot r+ .� � .� �, o � o�Z� the time. ; � N v � � � � � �'o°� `" � � � o � w u� �_ � a y � O O '� +�,� o cn=� a N cd � W .� � � w� �w �� w o ¢90 � �' � � ,7ir� O � P� cd N 'a �o-y „ cd U y m W � 5 �-r'1 � -� � �' � � � y � �, iD � 7. � � � � y � � O � o t}.1� �i U ,� p � � x'' t:�:-. .5 0� '� � � ��, o,� � F � c�� .� � � a� N � � `:x:;,`?;^� d �'x+ �� N �� U p'� � � � Ll1 N � �+ � '�' � p � F � H w � y N °z M o ° � �, � � o � � � � � � a� + Q � o py� ,�'�'�, � o V U w •, -� 3. On April 22, 1988, the licensee was sent a letter advising him that the City proposed to take adverse action based upon the March 31, 1988 incident. This letter was received by the licensee. 4. On May 23, 1988, a Notice of Hearing was mailed to the licensee at the same address as the April 22, 1988 notification. 5. On June 23, 1988, Assistant City Attorney Philip Byrne called the licensee to advise him about a room change for the hearing. 6. The licensee did not appear at the hearinq on June 24, 1988. After waiting f or him to appear, the Assistant City Attorney called him. The licensee stated that he was busy the week of the hearing, had two weddings to work on, had discussed with his clerk procedures f or checking on identification, and would not be attending the hearing. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. The Administrative Law Judge and the St. Paul City Cauncil have jurisdiction over this matter pursuant to Minn. Stat. 340A.503, Subd. 2 and St. Paul Legis. Code 410.04(a) . The Notice of Hearing was proper in this matter and all procedural requirements of law or rule have been fulfilled by the City. 2. St. Paul Legis. Code Sec. 410. 04(a) provides: "No intoxicating malt liquor shall be sold or furnished for any purpose whatever to any person under twenty-one years of age. . . " . 3. The licensee' s clerk sold non-intoxicating malt liquor to a person under twenty-one years of aqe. 4. The licensee, through its agent, has violated St. Paul Legis. Code Sec. 410. 04(a> . � Based upon the f nregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RECOMMENDID that the City Council take disciplinarp action against the licensee as follows: 1 . That the Council impose five consecutive days' suspension of the Pelham Market license for the sale of non-intoxicatinq malt liquor. , - 2. A� �nd for failure to give advance notice af non��_ "�'�`�� appearance at the hearing, and to reimburse the City for expenses caused thereby, the licensee shall pay a fine of $250. 00. Dated this 7th day of Julp, 1988. �' �� s �M�° Carol Grant Administrative Law Judge Pursuant to Chapter 14.62, a copy of the Decision and Order in the above-entitled matter shall be served upon each party or the party' s representative and the Administrative Law Judge by first class mail. �'�^'D M AY 2 4 1988 �= $��*' �- � CITY OF SAINT PAUL �4� �L =Q '"" •� OFFICE OF THE CITY ATTORNEY '� :i'uiiiiin �'' . EDWARD P. STARR, CiTY ATTORNEY ��'��33�.,:y��°� 647 City Hall, Saint Paul, Minnesota 55102 GEORGE LATIMER 612-298-5121 MAYOR May 23, 1988 Mr . Roger Maunders NOTICE OF HEARING Pelham Market 719 Pelham Boulevard St. Paul , Mn. 55114 RE: Pelham Market Dear Mr . Maunders : This is to notify you that a hearing will be held concerning the licensed premises stated above at the following time , date and place : Date : June 24, 1988 Time: 9: �0 A. M. Place : Room' 1345, Ramsey County Courthouse 20 West Fourth Street, St. Paul , Mn„ 55102 The judge will be an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings : Name: Ms . Carol Grant 2404 Stevens Avenue South ' Minneapolis , Mn . 55404 � Telephone: 871-9004 ' ' • ,Tn.e Council of the City of Saint Paul has the au•thority to . provide for hearings concerning licensed prem.ises , and for action � ' � ar� ainst such licenses, under Chapter 310 , . including sections 310.C�5 and 31�.06, of the Saint Paul Legislative Code�. In the case of� licenses for intoxicating an� nor.- intoxicatang liquorf authority is also conveyed by section 340A.415 of the Minnesota Statutes . , . .. Ev id Enc e w i 11 be pr esen ted to the j udg e wh i c h m ay 1 ead to adv er se . ac tion aga inst the 1 icense or 1 icenseholder as follows : � � On March 31 , 1988 , a clerk in the Pelham Market sold an alcoholic beverage , tc�=wit , non= intoxicating malt liquor (3. 2 beer) to a person under the age of 21 in violation of � Minn. Stat. 1986, section 340A. 5P13, subd. 2, and section 410 . 04 (a) of the Saint Paul Legislative Code. . . � ��--- i�.�� . � - You have the right to be represented by an attorney before and during the hearing if you so choose , or you can represent yourself. You may also have a person of your choice represent you, to the extent not prohibited as unauthorized practice of law. The hearing will be conc3ucted in accordance with the requirements of sections 14.57 to 14. 62 of the Minnesota Statutes , and such parts of .the procedures under section 310. 415 of the Saint Paul Legislative Code as may be applicable. At hearing , the Administrative Law Judge will have all parties identify themselves for the record. Then the City will present its witnesses and evidence, each of whom the licensee or attorney may cross�exam ine. The 1 icensee may then of fer in rebuttal any witnesses or evidence it �nay wish to present, each of whom the City attorney may cross-examine. The Administrative Law Judge may in addition hear relevant and material testimony from persons not presented as witnesses who have a substantial interest in the outcome of the proceed ing; for example, the owners or occupants of property located in close proximity to the licensed nre�ises ma1✓ have su�stantial interest in the outcome of the proceeding. Concluding 3rgumen�s may be made by the parties. Following the hearing , the Judge will prepare Findings of Fact, Conclusions of L3;a , and a specific recommendation for action to be taken. You should bring to the hearing all documents, records and witnesses you will or may need to support your position . Subpoenas may he a�,�ailable to compel the attendance of �witnesses . or the production of documents in conformity with Minnesota Rules, nart 14Q0.7l300. • . . If• you think that Yhis matter can be resolved or settled without ' a formal hearing , please contact or have your attorney contact ,. . the undersigned. If a stipulation or agreement can be reached as . to the facts , that stipulation will be presented to the Administrat'ive Law Judge for incorporation intc " his or her recommendation for Council action. . If you fail to appear at the hearing, the allegations against you _ , which have been stated earlier in this notice may be taken as . - . true and your ability to challenge them forfeited. If non=public � ' ' data is received into evidence at the hearing , it may become . . - �a `" ��S O . . public unless objection is made and relief requested under Minnesota Statutes , section 14. 60, subdivision 2. Very truly yours, • • � • . PHILIP B BYRNE Assistant City Attorney (612 ) 298-5121 Attny. Reg . No . 13 961 . � cc: Joseph F. Carchedi License Inspector Lt. Donald Winger Vice Unit Albert B. Olson City Clerk Ms�: �airr�� Gra�r�t . - . ��:�y�� U.S. SUPREME�OURT REPORTS 4? L Ed 2d � '..,,,:. to the contrary, i.e., that he was 87 S Ct 616 (196?); Gardner v Bro- ; �: 1�e Sta entitled to counsel at the hearing derick, 392 US 273, 20 L Ed Zd 1082, ,�: Griffm, s and that the State would furnish 88 S Ct 1913 (1968); Sanitation Men �`' use of hi counsel if he did not.have one of his v Sanitation Comm'r, 392 US 280, 20 �' hearinS i own. . L Ed 2d 1089, 88 S Ct 1917 (1968). Ia � �. Neither ] this line of cases from Garrity to asked tl � � (42s US s�s� Lefkowitz, the States, pursuant to Fifth An � statute, sought to interrogate indi- notified ; viduals about their job performance �m� [6a] Palmigiano was advi.sad that or about their contractual relations V-�:: � also advi he was not required to testify at his with the State; insisted upon vraiver � �' disciplinary hearing and that he of the F�fth Amendment privilege �� could remain silent but that his si- not to respond or to object to later �m� � _ � lence could be used against him. The use of the incriminating statements �,� ��ge Court of Appeals for the First Cir- in criminal prosecutions; and, upon A cuit held that the self-incrimination refusal to waive, automatically ter- �.: �en� privilege of the Fifth Amendment, minated : made applicable to the States by [�US s17] �. been cb reason of the Fourteenth Amend- employment or eligibility to �h; law, dis ment, forbids drawing adverKe infer- contract with the State: Holding �`� b� °' ences against an inmate from his that the State could not constitution- fested i , failure io testify. The State chal- ally seek to compel testimony that n�' P' lenges this determination, and we had not been immunized hy threats sono, 3] � sustain the challenge. of serious economic reprisal, we in- -� � It is tl validated the challenged statutes. �a��s [7, 87 As the Court has often held, � �'�� the F�fth Amendment "not only pro- The Court has also plainly ruled cision t . tects the individual against being that it is constitutional enor under s involuntarily called as a witness the Fifth Amendment to instruct a. this re; against himself in a criminal prose- jury in a cri.minal case that it may ent frc cution but also privileges him not to draw an inference of guilt from a ; the Co � answer o�cial questions put. to him defendant's failure to testify about = � decisio� in any other proceeding, civil or facts relevant to his case. Griffin v � ��n'° criminal, formal or informal, where California, 380 US 609, 14 L Ed 2d Amen� �h_ . the answers might, incri.minate him 106, 85 S Ct �1229, 5 Ohio Misc 127, - � slone �'�€;; in future criminal proceedin,�s." Lef- 32 Ohio Ops 2d 43? (1965). This �°`' other _- kowitz v Turley, 414 US 70, ?7, 38 L holding paralleled the existing statu- �, �y,� emplo; �; Ed 2d 274, 94 S Ct 316 (1973). Prison tory policy of the United States, id., �;; tract � disciplinary hearings are not crimi- at 612, 14 L Ed 2d 106, 85 S Ct 1229, '�°.� tO �' nal proceedings; but if inmates are 5 Ohio Misc 127, 32: Ohio Ops 2d t��' compelled in those proceedings to 437, and the governing statutory or Here, ` ;"u furnish testunonial evidence that constit��tional rule in the over- � � 3� the hi � :��: : might incriminate them in later whetming majori�y of the States. 8 J. that v : � criminal proceedings, they must be Wigmore, Evidence 425-439 (M� F �" this r ��` offered "whatever immunity is r� Naughton rev 1961). a,�` given ` quired to supplant the privilege" ,r: t� �. '> ° , and may not be required ta "waive [9] 'I'he Rhode Island prisoii rules surro� ,r,?�_ such immunity." Id., at 85, 38 L Ed do not transgress the foregoing prin-° ;��,��,; smacl � . 2d 274, 94 S Ct 316; Garrity v New ciples. No rr'Lnal proceedings are '. `. State �+� � Jersey, 385 US 493, 17 L Ed 2d 562, or were pendi.ng against Palmigiano. �. ; grant �.; � 820 � � �° ��_-. � "�� _ �,�� `� � �� a'� .�as�.� .. � . .. .-';..;" _. .,�.'.:.:A: .. �.;: ,.:4:� �;� -�� '��/��' y. �� k BAXTER v PALMIGIANO �:; 425 US 308,47 L Ed 2d 810,96 S Ct 1551 � Bro- �;� The State has not, contrary to the exercise of the privilege. The 1082, Griffin, sought to make evidentiary advice given inmates by the decision- � i Men use of fiis silence at the disciplinary makers is merely a realistic reflec- �+ 20 hearing in any criminai proceeding. tion of the evidentiary sigiuficance ��• � °-� Neither has Rhode Island insisted or of the choice to remain silent. � itY to � asked that Palmigiano waive his nt to ,�;; Fifth Amendment p�ivilege. He was [10] Had the State desired Palmi- ' ��- �� notified that he was privileged to S�o'$ �stimony over lus Fifth nance � remain silent ,if he chose. He was �endment objection, we �:an but �tions �` ' also advised that his silence could be ��e that it wauld have extended ►aiver used against him, but a' prison in- whatever use immunity is required vilege �,,.. ., mate in 8hode Islanc�` electing to by the Federal Constitution. Had � later remain silent during his disciplinary this occurred and had Palmigiano nents °� hearing, as respondent Palmigiano nevertheless refused to answer, i �� • upon did here, is not in consequence of his surely would not have violated the • � v ter_ silence automatically found guilty of Fifth Amendment to draw whatever .. :� the infraction with which he has inference from his silence that the ' been charged. Und� Rhode Island circumstances warranted. Insofar ity to law, disciplinary d ions "must be the privilege is concemed, the situa• . �ldi.ng based on substanti�evidence mani- tion is little different where the ition- fested in the record of the discipli- State adv:ses the inmate of his right . that nary proceeding." Morris v Travi- to silence but also plainly notifies reats sono, 310 F Supp 857, 873 (RI 1970). him that his silence will be weighed �e in- It is thus undisputed that an in- in the balance. s, mate's silence in and of itself is �� Z� �r conclusion is consist- insuS'icient to support an adverse de- �� cision by the Disciplinary Board. In ent with the prevailing rule that the uider [425 U3 318j Fifth Amendment does not forbid u� a this respect, this case is very differ- adverse inferences against parties to �8Y ent from the circumstances before civil actions when they refuse to �� a the Court in the Garrity-Letkowitz ��' � response to probative evi- �bout decisions, where refusal to submit to dence offered against them: the � � interrogation and to waive the Fifth �endment "does not preclude the- �d 2d "• Amendment privilege; standing �erence where the privilege is 127, �- ` alone and without regard to the claimed by a party to a civil cause." This s- other evidence, resulted in loss of 8 J. Wigmore, Evidence 439 (Ma � tatu- �� employment or opportunity to con- Naughton rev 1961). In criminal - �, id., - tract with the State. There, failure �� where the stakes are 1229, to respond to interrogation was : [�s Us 31s� s � treated as a final admission of guil� , higher and the y or Here, Palmigiano remained silent at State s sole interest is to convict, �ver- the hearing in the face of evidence Griff'in prohibits the judge and prose- 8 J. � that incriminated him; and, as far as cutor from suggesting to the jury (Mo- � this record reveals, his silence was �t it may treat the defendant's given no more evidentiary value g�ence as substantive evidence of than was warranted by the facts ��' Disciplinary proceedings in '�� surrounding his case. This does not �� p�O�' however, invulve the correctional process and important ?�' smack of an invalid attempt by the �� other than conviction � �' State to compel testimony without for cri.me. We dec,line to extend the ano. °� granting immunity or to penalize C.riffin rule to this contest. ';� ' 821 --�.- U.S. SUPR,EME"COURT REPOftTS 47 L Ed 2d It is important to note here thst Grunewald v United States, 353 US the position adopted by the Court of 391, 418-424, 1 L Ed 2d 931, 77 S Ct Appeals is rooted in the Fifth 963, 62 ALR2d 1344 (1957). Indeed, [1: Amendment anii'the policies which as Mr. Justice Brandeis declared, that it serves. It has little to do with a speaking for a unanimou.s court in proc fair trial and derogates rather than the Tod case, supra, which involved improves the chances for accurate a deportation: "Silence is often evi- �� decisions. Thus, aside from the privi- dence of the most persuasive charac• evid� ' lege against compelled self-incrimi- ter." 263 US, at 153-154, 68 L Ed � $ nation, the Court has consistently 221, 44 S Ct 54. And just last Term -. recognized that in proper circum- in Hale, supra, the Court recognized ' �n stances silence in the face of acxusa- �t "[fJailure to contest an assertion 41 ] - - tion is a relevant fact not barred , . , � ��idered evidence gf acqui- � 0�< from evidence by the Due Process �nce . . . if it wpuld have been "[oJ� Clause. Adamson v California, 332 natural under the circumstances to �, evid US 46, 91 L Ed 1903, 6? S Ct 1672, object to the assertion in question." i but 171 ALR 1223 (1947); United States 422 US, at 176, 45 L Ed 2d 99, 95 S , �t� ea� rel. Bilokumsky v Tod, 263 US �2133' �'r 149, 15�154, 68 L Ed 221, 44 S Ct � tion 54 (1923); Raffel v United States, 271 [�Us s�l �� - US 494, ?0 L Ed 1054, 46 S Ct 566 [6b] The short of it is that permi� � ,� (1926); T�viniug v New Jersey, 211 ting an adverse inference to be out US 78, 53 L Ed 97, 29 S Ct 14 (1908). drawn from an inmate's silence at � See also United States v Hale, 422 his disciplinary proceedings is not, �� US 171, 176-177, 45 L Ed 2d 99, 95 on its face, an invalid practice; and �h S Ct 2133 (1975); Gastelum-Qui.nones there is no basis in the record for �, v Kennedy, 374 US 469, 479, 10 L invalidating it as here applied to tual ' Ed 2d 1013, 83 S Ct 1819 (1963); Palmigiano' tion 8. The Court based its statement on SA J. "In all of theee much depende on the indi- pr�, Wigmore, Evidence §1042 (Chadbourn rev vidusl circumstan'ces, and in all o€them the �e �- . ' 1970),which reads as follows: underlying test is,would it have been natural 556, •�,` "Silence,omiesions,or negative statemente,as for the pereon to make the assertion in quee- 71 inconsistent: (1) Silence, etc., as constituting tion?"(Emphesis in originalJ(Footnotee omib ,: the impeaching statement A failur�e to assert ted.) T�Bf r` a fact, when it would have been natural to the '°: sasert it, amounte in effect to an aesertion of 4. [6C] The record in No. 74-1187 shows Sug� the non-existeace of the fac�t.This is conoeded �t Palmigiano was provided with copies of �e ;�. the Inmate Disciplinary Report and the supe- �*" as a general principle of evidence (�1071 rior's investigation report, containing the 2'P.e! "�, infra). There may be ezpianations, indicating . that the person had in truth no belief of that ��d primary evidence against him,on RrhE ',, tenor, but the conduct ia `prima facie' en �e day before the disciplinary hearing. At II� the hearing, Captain Baxtei read the charge '4-'.,. iaconsistency. tp Palanigiano and summarized the two r� 1.II 1 "There are eeveral cammon clesses of cases: ports. In the face of the reports,which he had '�' ;�,, . "(1)Omiesions in lege!Proaeedinga to aseert seea,Palmigiano elected to remain ailent.The i �` '�a�`::�'� what would naturally have beea eseerted un- Disciplinary Board's decision was based on ; ; ' � der the circamstances. theee two reports, Palmigiano's decision at ' � ,�.`: "(2) Omissions to aesert anything, or to the hearing not to speak to them,and supple- ' - speak with such detail or positiveaeas, wbea mentary reports made by the o�ciale 5ling � tWe tormerly aerratinB, on the stand or elee- the initisl reporta. Ali of the documente were ` n@8; . where,the matYer now dealt with. introduced in evidence at the heariag before 8t �- "(3)Fsilure to take tbe aEsad at all,when it the Dietrict Court in thia case. App 197-201 "" would have been natural to do eo. (No.74-1187). , exp � � t10I S22 ' �:: �Y .f'�,. . ..... .ei � _�'. � — . . .. . . .. .... .. . . � ��71 � ; j�`y. f �.. � Jr . ��: � ' � . � � ��''� �� 1480 819 FEDERAL REPORTER, 2d SERIES :.��,.� ;. plicit.in Cerro Gordo's argument is the fact tects a mere witness as fully as it does one that if a waiver of the privilege did indeed who is also a party defendant." Id.6 tions.. co occur, Dr. Guerrero should have been At ttial, called to testify at trial. The record indi- �4� Although the privilege applies in the T�ib� cates, however, that Cerro Gordo objected both civil and criminal proceedings, the Su- have hin at trial to the live testimony of Dr. Guerre- preme Court has viewed the assertion of lege in tl the privilege differently depending on though, ro—even though the insurance companies �,hether a civil or criminal proceeding is Dog's d� were willing to have Dr. Guerrero take the involved. In criminal proceedings, the stand. Cerro Gordo cannot have its cake On ap and eat it too. It cannot claim on appeal prosecution is prohibited from commenting improper that Dr. Guerrero should.have been permit- on the accused s silence, and the trial court T�ibe to � ted to testify if at trial it objected to any is forbidden from instructing the jury that him invo live testimony by Dr. Guerrero. We there- the defendant s invocation of the privilege jury. Id fore find that Cerro Gordo waived any mayg e used in the jury s consideration of certain ii � hearsay objection it may have had tc► t}ie �e uilt or innocence of the defendant. ness to t � introduction of the transcript at trial. GriJfin v. California, 380 U.S. 609, 615, 85 has madc F S.Ct. 1229, 1233, 14 L.Ed.2d 106(1965)_ By �fth An � contrast, the Supreme Court in Baxter v. cial conc �� III Palmigia.no, 425 U.S. 308, 318, 96 S.Ct. advantag 1551, 1557, 47 L.Ed.2d 810 (1976), stated permittec The district court permitted the insur- ��at the Fifth Amendment does not forbid Id at 52 - ance companies to cal] Richards to testify adverse inferences against parties to civil tant to'E ;:. at trial, even though Richards had made it actions when they refuse to testify in re- sion: (1) �+ k�own that he would invoke his fifth sponse to probative evidence offered activities amendment privilege against self-incrimina- against them." sition te: tion. Upon taking the stand, Richards tes- ured• ar. tified only to his name, address, and profes- The question remains regarding the ex- > > sion, invoking the privilege in response to �nt to which a nonparty's invocation of the of the ru other questions which were asked. Cerro fifth amendment privilege may be made introduce known to the jury in civil cases. This court and was Gordo asserts that the district court erred any cros� in allowing defendants to call Richards for �uched upon this question in Rosebud Sioux Trrbe u A & P Steel, Inc., 733 F.2d the Tribe the sole purpose of having the jury hear by permit him im•oke the fifth amendment privilege. 509 (Sth Cir.), cert. denied, 469 li.S. 1072, � 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). have him «e disagree. lege befc In Rosebud, A �. P Steel entered into a • able to � [3) The fifth amendment provides that contract with the Rosebud Sioux Tribe to that A 8 ' "[n]o person ' ' ' shali be compelled in develop an irrigation system on the Tribe's .any criminal case to be a witness against 1and. Allegations of fraud, corruption, and The co himself." It is now well settled that the nepotism arose with regard to the project. nounce a privilege is also available in civil proceed- The Tribe sued A & P for fraud, conspir- attempts . ings. McCarthy v. Arndstein, 266 U.S. 34, aey, breach of contraet, and breach of war- privilege i � ' 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924). ranties arising out of the contract. The 523. Lik ' The privilege "applies alike to civil ;ind Tribe took the deposition of Richard Long 7. Of the� ' criminal proceedings, wherever the answer pog, the chairperson of a corporation that the ques� ` might tend to subject to criminai responsi- managed the Tribe's lands. Long Dog's wich ehis � bility him who gives it. The privilege pro- deposition testimony contradreted alle 8- /nc. v.Ac B (3d Cir.l � : . 717 F.2d . 6. The extension of thc privilege to civil cases Pa.1957). 1.loreover, even if the testimony i • was necessary to accomplish the purpose of the could not bc used as evidence in a criminal 8. Richarc k; ; privilege. See Notc, Use o/the l3ivilege Against proceeding,the testimony may still be cmployed Februar� �, SeIJ-/nrnmina�ion in Cii�i! Lltigation, 52 Va.L. to discove� othct evidcncc that could be used 1983. ` Rev. 322, 323 (1966). lf this were not the case, against the individual in a criminal prosecution. a witness forced to testify in a civil case could 9. See Nc possibly bc later convicted in a crimi�al pro- Note,supra, See, e.g., Couruelman v.Hitchcock, PQ�,�,�n� ceeding with that very testimony. /d See, eg., 142 U.S. 547, 564, 12 S.Ct. 195, 198, 35 I:.Ed. Ama»dm I � Uniied S�ota v. Epsrein, 152 F.Supp. 583 (E.D. �� 1892�' 370, 387 � ' impropei ` � ; i Si A, �' .y .:...: . . . .. .. ....�r:ve.�- -,...�:..�+�.....o.-�:.r.,..-�..-.-...--,�.,�.... ,----.-- aS �,. . ��, i � !` 1 .�` ' CERftO GORDO CHARITY v. FIREMAN'S FUND AM. LIFE INS. � � I 1481 i C1te as 819 F.2d 1471 (8th Cir. I98n e ` tions contained in the 1�ibe's complaint. in this case, preferring instead to consider ;� '� At trial, the district court refused to allow these questions on a case-by-case basis. ,; , n ��' the 'I�ibe to call Long Dog to the stand to Under the circumstances here present, ;� � �_ .;-�., have him invoke this fifth amendment privi- �,�,e agree with the distxict court that it was � �' f �;. lege in the presence of the jury. The court, appropriate to permit the insurance compa- n ; ' though, permitted A & P to read Long nies to call Richards to the stand for the ` S � Dog's deposition testimony into evidence. purpose of having him invoke the privilege �� e On appeal, this court held that it was in the jury's presence. , i! � g improper for the trial court not to allow the �' +' [5] F'irst, we find that the fact that ;; � , 'I�ibe to call Long Dog to the stand to have Richards may not be presently involved (; t him invoke the fifth amendment before the W�th Cerro Gordo in an official capacity ? e `� jury. Id at 523. The court stated that in presents no bar to requiring him assert the ,�� g `;�:c certain instances "a party may call a wit- pr;vilege before the jury.8 In that regard, ;; „ `:r ness to the stand even when that witness this case is analogous to Brink's Inc. v. � �'` has made known an intention to invoke the Ctty uJ New York, r 17 F.2d 700 (2d Cir. ;' � �, � F�fth Amendment." !d. at 522.' Of spe- 1983), and RAD Servs., Inc. v. A-etna Casu- I i� � I ,. `� ciat concern to the court was the unfair dlty& Sur. Co., 808 F2d 271 (3d Cir.1986), � �' ! _ advantage that A & P had gained by being N,herein the Second and Third Circuits, re- � : ! � permitted to use the deposition testimony. spectively, held that it was permissible to � � i � : !d. at 522-23. Three factors were impor- allow the.invocation of the privilege to be � ` i � tant to the court in reaching this conclu- made known to the jury when it is invoked ` ' j sion: (1) Long Dog was a kev figure'in the by a non-party who was a former employee ; : j "� activities at issue in the case; (2) his depo- of a company a party to the ]itigation. ;:; � sition testimony was most probably per- Richards, as a former member of Cerro ; : ., _ k jured; and (3) through unfair manipulation Gorda, stands in a position similar to the i .' �, � r� of the rules of evidence A & P was able to non-party ex-employees in those cases. f �,� introduce testimony favorable to its side Moreover, any concerns that ftichards ; :' ' � and was also able to effectively prevent K,oulcf invoke the privilege solely for the - � f�. any cross-examination of that evidence by purpase of harming Cerro Gordo are not , i ! � ': i �,`� the Tribe. Id. The court concluded that present here.9 There is reason to believe � r: h�,. by permitting the Ttibe to ca11 Long Dog to that Richards still retains some loyalLy to �'f '� � ' k'�:� have him invoke his fifth amendment privi- �r r o G o r d o. See Heidt, su pr a,, note 9. � tl i��r � � -,-�� lege be fore t he j u ry, t h e T r i b e w o u l d b e �ese suits were broug h t in t he nam e o f � � � � °- able to counteract the unfair advanta e �,� g Cerro Gordo when Richards was still a . . ; s " '�`� that A & P had ained. Id. at 522. � ~�: B controlling membeT of the charity. Al- ''� �}. >' � �.�'Y.s-. �'�' The court in Rosebud declined to an- thoug�h it is true that Bichards is not pres- {'" ' ' i :� ;;�: , � =X nounce any blanket rule legitimizing all ently listed as a director ur voting member , � ' '''- att.empts to require a witness to invoke the of the charity, there .is some question r;� �; ' 1��' � _ privilege in the presence of the jury. Id. at whether he retained some control over the ,, } ; ; � 523. Likewise, we announce no such rule charity and whether his resignation as a ; ': �' i! ; , j � ;i ► 7. Of the two federal circuits that have addressed adverse inferences from a non•pany's invoca- ; ': E`++ ,� tthe question, both are essentially in agreement tion of the privilege whe� at the time of trial j;, ; � . with this circuit on this point. See RAD Servs, that individual stands in no special relationship � ; � ' /nc. v.Ae tna Casua l t y&S u r e ry C o., 8 0 8 F.2 d 2 7 1 w i t h a p a r t y i n t h e l a w s u i t. T h e s u t h o r s t a t e s � � k e j - (3d Cir.1986}; Brink's/nc. v. City oJ New York, ihat, among other things, a nomparty witness + ; • �� . 7I7 F.2d 700 (2d Cir.1983). may purposefully assert the privilege solely to � � , s� � �- discredit a party that they have fallen into disEa- r �8. kichards resigned as dircctor of the charity in i f � l i v o r w i t h(e.g.,a n e x-e m p l o y e e a s s ertin g the priv Fearuary 1982,and as a voting member in June I � �9Ft3 ile ge to hurt a former employer). /d at 386. ( ( � For the countervailing argument, see RAD, 808 ( j } ' • 9. Sce Note, Adverse InJerences Based on Non- F.2d at 275-76; Heidt. The Conjurer's Circle— � 1 � ParTy Invocationr. The Real Magic Tnck in Fi/th 7'ye Fi/rh Amendmen�Privilege in Civil Cases, 91 { • Amendment Civil Casa, 60 Notre Dame L.Rev. Yale LJ. 1062, 1119 n. 2l4 (1982). ' 370, 387 (1985j,which argues that it should be � improper to permit the trier of fact to draw ; �rr . - . . . . . �* ` p � / 1482 819 FEDERAL KEPORTER, 2d SERIES �a �,� . '� J ��' voting member after these suits were filed to-the determination of the action more wide c was not purely a matter of litigation strate- probable or less probable than it would be :�` such c gy. There is no evidence that would lead without the evidence." Fed.R.Evid. 401. ��-�' 767 F. one to believe that Richards would assert In order for evidence to be admissible un- —U•� the privilege solely to harm Cerro Gordo's der Rule 401, it need not necessarily prove r.,,;, (1985). chances of success in this litigation. that a fact of consequence exists; it need ' deterrr only make it more probable that that fact � mitted [6� Second, even if 8ichards retained �` volved. some ties with Cerro Gordo,and could still exists. Under the particular circumstances ,�` have possibly benefited, either directly or of this case, Richards' invocation of the indirectly, from a verdict in Ceno Gordo's Privilege made it more probab]e that Rich- ards had committed the acts in uestion. T�e favor, we hardly think that making it q to intrc known to the jury that kichards invoked In addition, this evidence was not unduly re udicial in the sense of creatin "an policie: the privilege made the invocation too cost= p � g ly. See Ba.zter v. Palmigiano, 425 U.S. at undue tendency to suggest decision on an the otl improper basis, commonly, though not nec- ` � owned 316-20, 96 S.C� at 1557-59; Le,Jlcowitz u �:� _ . Cunningham, 431 U.S. 801, 808 n. 5, 9? �sarily, an emotional one." Advisory [7] S.Ct. 2132, 2137 n. 5, 53 L.Ed.2d 1 (1977). �mmittee Note, Fed.R.EWid. 403. This ev- ; under : The fact that Richards chose to invoke the� �dence was not unduly emphasized by the $700,OC privilege was only one of a number of companies when considered in relation to The pn factors that the jury had to consider in other key evidence introduced at trial. but ins� determining whether a fraud had been com- Also, by no means was it e�•er suggested in Richarc mitted. Id. There was other evidence any way at trial that the jury should base ';- cies illi presented at trial that Richards sought to �� entire decision solely on this evidence, son. 7 perpetrate a fraud on the insurance compa- nor does it appear likely that the jury did involve� nies. so. In the light of the foregoing factors, the pa}� ; we hold that it was proper to call Richards dling o: Third, Richards is also a key figure in � the stand to have him assert his fifth panies. this case. His actions form the very basis amendment privilege in the presence of the = proceec �j of the affirmative defense of fraud. If �u�, ed by t `�� anyone knew whether there was an intent ; �=;: de fact } to commit a fraud, it �vas Richards. Hear- _ �Ip po � ing Richards invoke the privilege informed IV �� erly ad� ;j the jury why t}ie parties with the burden of Cerro Gordo argues that the district son wa. proof, i.e., the insurance companies, resort- court erred in admitting into evidence cer- of Rich ed to less direet and more circumstantial tain purported "other acts" of Richards �8� , evidence than. Richards' own account of pursuar.t to Rule 404(b) of the Federal _ what had occurred. See Heidt,supra, note Ru1es of Evidence.10 This court has held cies we ' 9, at 1123-24. Otherwise, the jury might that �e� � have inferred that the companies did not [e)vidence of such other acts is admissi- a�th c � cates it call Richards to testify because his testimo- ble when it is relevant to an issue in $3,5 mi' � ny would have damaged their case. Id. at question other than the character of the �� " 1124. defendant, there is clear and convincing �me sh Finally, we find that the probative value evidence that the defendant committed • eAVisior of the evidence substantially outweighed �e grior acts, and the �potential unfair :�x: another any danger of unfair prejudice to Cerro prejudice does not substanpally outweigh '.`:�: 11. Cer ' Gordo. Fed.R.Evid. 403. Evidence is pra the probative value of the evidence. -�;� . ncnde bative if it has "any tendency to make the United States v. Galyen, i98 F.2d 331, 332 -�. 207 g existence of any fact that is of consequence (8th Cir.1986). The district court is given �� an inv f0. Rule 404(b) provides: thercwith. lt may, howe�•er, bc admissibk Even t (b) Other crlmes,wronga,or acu. Evidence for other purposes, such as proof of motive, ��, coins, of othcr crimes,wrongs,or acts is not admis- opportunity, intent, preparation, pian, knowl• or eve sible to prove the character of a person in edge, identi�y, or absence of mistake or acci- ` eo�ns • order to show that hc acted in conformity drnt. -. :' �entor . =ki- . ,�,1 ��t f ; .; s . .� .� - . � �'`,�� _ � - ,�� ._��5� §��o.�� SUBTITI.E A. IN GEl`'ERAL � Legislative Code Chapter 310. Uniform License Procedures Closs I Licereses Chqpter Autornobile Repair Garage and Sec. 310.01. Definitions. Body Shop 315 Animal Foods Manufacturing and For the purposes of this chapter, any�chapter of Distributing 316 the Legislative Code pertaining to licenses as here- Amusement Rides 317 in2R,er mentioned, and subsequently enacted ordi- �echanical Amusement Devices 318 nances establishing or relating to the requirements Bill Posters 319 for Class I, Class II and Class iII licenses under Bituminous Contrac'tors 320 authority of the City of Saint Paul, tbe tierms goarding and Roominghouses; defined in this section shall have t.he meanings Dormitories 321 � ascribed to them: Bowling Al)eys; Pool Halls 322 Christmas T�-ee Sales 323 Adverse nction means the rertocation or suspen- Cigarettes 324 ,� sion of s license, the imposition of conditions upon Cloce-Out Sales 325 a license, the denial of an application for the grant, guilding Contractors 326 issuance, reneu•al or transfer of a license, and Dry Cleaning and Dry Dyeing anv othe* disciplin�� or unfavorable action taken p�ants; Laundries 32 i ��ith respect to a license, licensee or applicant for E)ectrical and Appliance Repair 328 . a license. Fire A)arrn—Telephone De�•ices; Bond means a bond meet.ing the requirements APParatus Installers 329 of Section 310.07 and indemr,�ifS•ing the City of Florists 330 Saint Paul abainst all claims,judgments or suits Food License 331' caused b�•, resulting from or in connection ��ith Fuel Dealers—Liquid Fuel 332 � an�• licen�ed business, activity, premises, thing, Fuel Dealers—Solid Fual 333 _ facilit�•, occurrence or other��ise under these Fumigating—Pest Control � 334 chapters. Gasoline Filling Stations 33b � Private Fuel Pumps 330 � r �—Hardware Swres 33 i Builcling ofTcial means the supervisor o, code enforcerr,ent in the department of community Houce Sewer Contractors 338 services. 1ce�Cream Processing and Distrib- • � • uting 339 Chapters and these chapters shall mean this Nlercantile Broker 340 Uniform License Ordinance, any chapter �f the Milk 341 , Legis)ati��e Code pertaining to licenses as here- Oi)—Bulk Storage 342� inafter :nentioned, and subsequently enact.ed ordi- Opticians . 343 nances establishing or reJating to the requirements Pa�cn Shops 344 ' for Class I, Class II and Class III licenses under Peddlers 345 . authorit�• of the City of Saint Paul. Soliciting 346 . Pet �hops 347 Clo.cs 1 licenses means those licenses which can Radio and Tele��ision Repairs 348 be approved and issued or denied by the inspec• Renial of CJothing 349 tor, subject to the procedures required by these Rental of Hospital Equipment 350 chapters. The folloµ�ing licenses are so classified, Rental of Kitchenv��are 351 and the numbers show-n opposite them correspond Rental of Trai)ers 3�2 w the chapters in the Legislative Code pertaining Roller Rinks 353 to each license: Sanitary• Disposal 354 • 2027 t 310.01 i.£GLSLAT�VE CODE � ..�__ _ , . �. Secondhand Dealers 355 Dance Halls 4p$ Sidewalk Contractors 356 Geme Rooms 406 Solid Waste 357 Hotel 40? Sign and BilIboard Construction 358 Junk Salvage and Scrap 4Q8� Sound T�ucks and Broadcasting Intoxicating Liquor 409 Vehicles 359 Nonintozicating Liquor 410 Public Sa-imming Pools 360 Entertainment , 411 ToR T1-ucks—Service Vehicles 361 •� Massage Parlors snd Saunas 412 T�'ee Tnmmin8 - 362 Conversion Parlors 413 Vending Machines 363 Masseur-Masseuse 414 Veterinary Hospita] 364 Motion Picttu-e Theatres - 41b Window Cleaning 365 . Motion Picture Drive-In T'heatres 416 Block Parties 366 � Parking Lots • 41? Tattoo Parlors 367 • Taxicabs 418 �. �'Vrecking of Buildings 368 Gambling License 419 Building Trades Business Licenses 369 � � Building Trades Certificates of i Director means the director of the department � Competency 370 of finance and management services, uiiless oth- Finishing Shop 371 erwise defined in the specific chapter, section or T�-e Recapping Plants 372 subdivision refened to. ' 'I�-ansieat Merchants 373 Division means the division of license and per- Closs II licenses means those licenses which mit administration in the department of finance must be approved or denied by the director, sub- and management services. ( � � ject to the procedures required by-these chapten. • l The fol]o�-ing licenses are so classif ed, and th� Fee means and includes both the license fee .• - � . numbers shown opposite them correspond to the and application fee unless otherwise provided. chapters in the Legisiative Code pertaining to License .means and includes a11 licensea and each licen..ce: _. permits pro�ided fpr or covered by these chapters. Legisla.tive Code Person means and includes any person, firm, Class 11 Licenses Chapter corporation, partnership, company, organization, Auctioneers—Short Terrv License 390 agency, cluk� or any group or association thereof. Soliciting Funds—Tag Days 391 It shall also include any executor, administrator, . - • trustee, receiver or other representative ap�ointec Class III Iicenses.�means those licenses which by Is��. can be approved or denied only by the council, subject to the procedures required by these chap- Zoning ad.ministrator means the supervisor o� . . ters. The followzng licenses are so class�ed, e.nd � code enforcement in the department of commu. � the niunbers sbow�n opposite them correspond to nity services, or the official ch�rged with respon- the chapters in the Legislative Code pertaining to sibility for enforcement of the zoning code. • . each licease: (Code 1956, § 510.01; Ord. No. 17303, § 3, 10-29-85) � Legislative . Code �c. 3I0.02. Application. Class 111 Luenses Chapter (8) Form All appIicants for licenses or permits Auct:uneers 400 issued pursuant to these chapters shall make both Motor Vehicle and Paris Dealer 401 original and renewal applications to the inspectar Bingo 402 on such forms as are provided by the division. Bingo Hal]s 403 Such applications shall not be received by the / � Private Clubs 404 inspector unti) completely filled out, accompanied '� �2028 : � � _ �'�i�� LICENSES �310.02 b�� all fees, insurance policies, bonds, deposits, in tbe business; age; address; descziption or blue- sureties, and indemn�cations or certificates re- print of the preraises,if any,and the ow�ner thereof, quired by these chapters, together with the certi• and locations and addresses of other business lo- fication required in paragraph (b)below. catians in Mianesota. (b) Tases. No person shall be granted a license, (d) No reapplication avithin one year after de� a renewal of a license or transfer of a license n� or revocation. No person may apply for a.n5� required by the Saint Pau] Legislative Code un- license within one year of the denial or revoca• less, prior to and in addition to any oiher require- tion of the sazne or similar licease by the city ments, rules or ordinances heretofore or bereafter council, if such denial or revocation was based required, the Ram.sey County Department of Prop- solely or partially upon misconduct or unfitness erty Taxation cert�es that said applicant has of the applicant, evidence of violations of law in- paid any and all taxes, real or personal, before volving licensed premises, evidence that the ap- said taxes become delinquent, on any property, plicant had been involved in the operation of a real or personal, situated within the Cit3 of Saint nuisance, or fraud or deception in the license ap- Paul and used in connection w-ith the business plication. Denial of a license, as used in this para- operated under said license. � graph, shall include a refusal of permission to '� transfer a license to the applicant. A license is , I�Tot�•ithstanding the previous paragraph, the "similaz," within the meaning of this paragraph, council, the director or the inspector may issue, if the basis upon �hich the revocation or denial of renev�� or transfer a license if it is found that: the original license wa� made would have been a relevant basis on which to deny or revoke a li- (1) The applicant has made an agreement sat- cense of the t}*pe subsequently applied for. • . isfactory to the Ramsey County attorney to pay delinquent taxes in periodic installments; (e) Reapplication after denial; "interesi" of ap � plicnni in reuoked license. An application b�° a (2) The applicant has properly commenced a person having an interest in, or whose shazehold• . proceeding to cont,est the amount of tax ers or o�icers have an interest in, any premises due or the valuation of his property, and or enterorise whose license has been revo}:ed or � has made all p�-tia] payments required by � ,�hich a license has been denied shall be treated .t la�• in connec:ion ��th such proceeding; or as an application by the person whose license v�as .. (31 The business property ��ith respec`�to which denied or revoked. The term "interest," a5 used � taxes are delinouent is not ow•ned by the �� this paragraph, includes any pecuniary inier• applicant, but by a lessor, and it would be est in the ownership, operation, management or inequitah)e to require the 3essee to pay such Profits of an establishment, but dces not include: . , taxes � bona fide loans; bona fide rental agxeements; bona fide open accounts or other obligations held v��ith If a license is issued, renewed or transferred be- or without security arising out of the ordinary cause of the existence of an agreement as des,.�-ribed and regular course of business of selling or leas- in subsection (1) above, the. license may be re- ing merchandise, fixtures or supplies to such es- voked if the licensee defaults upon such agzeement. tablishment; an interest in a corporation owning or operating a hotel but having at least one hun- . � (c) Additional inform.at�:on. The inspector shall �ed fifty (150) or more rental units ho]ding a prescribe the information required to be submit• license in conjunction therewith; or ten (10) per- � ted by each applicant in his application, in addi- cent or less interest in any other corporation ho)d- tion to that required by specific sections in these ing a ]icense. chapters, as may he necessary to carry out and enforce any pro�zsion hereunder. He shall require (fl Prohibition on reapplication; cxceptio�c The in even• case the applicant to submit his name; prohibition on reappl:cation herein provided shall business or corporate name; names of partners, not apply in cases where it is otherwise expressly ofiicers,direcwrs,shareholders or trustees involved provided by statute or ordinance. 2029 f 3I0.02 ' i.EGLSLATiVE CODE �. ��.. . � � � (g) W�ing period after ftling of petition Any department of fire and safety services and to the petition reQuired to be filed with the application building officia] for investigation and recom- for any license shall not be considered as o$`ic- mendatian. iallti• filed and irrevocable until seven (7)working (Code 1956, § 510.03; Ord. No. 17361, §.1, 6-5$6) days after a petition is received in the inspector's o�ce. During the seven-day waiting period, any Sec. 310.44. Levels of approval;recommenda. signat,or of any petition may wzthdraw his aame tioas. � therefrom by written request, and such request shall be appended to the subject petitaon and made �a� Class I licenses. Where an application for a part thereof. A.fter the�seven-day wa.iting peri- the grant,issuance,renewaI or transfer of a Class od, signatures may not be withdrawn unless it is I license meets all the requirements of law, a�d shown they were obtained by fraud or duress. �ere exists no ground for denial, revocation or Signatures v�•ithdrawn or obtained by fraud or�� S��on of, or the imposit'ion of conditions upon, duress shall not be counted in determining tbe �ch license,the inspector shall grant,issue,renew � . sufficiency of the petition. This subdivision shall or traasfer said license in accordance witli the � apply in any case �•here the applicant for a li. aPPlication. cense or license transfer must present a statE- (b) Class II licenses. Where an application for � ment in writing sigr,ed by a specif ed number or the grant,issuance,renewal or transfer of a Class percentage of persons that they have given their II license meets all the requiremenLS of law, and corLCent to the grant of the license or license ta�nsfer. there exists no ground for denial, revocation or � (Code 1956, § 510.02) suspension of, or the imposition of conditions upon, , such license,the director shal] require the inspec- . Sec. 310.03. Investigation and review of new tor to grant, issue, renew or transfer said license ' � � applications, etc. in accordance wit:� the application. ` � . The inspector shzll determine the sufficiency (c) Class I and Class 11 licenses, if denied by .- and accuracy of each new application and obtain inspector or director. In the event the inspector, . such criminal histon• information as may be used in the case of Class I licenses, or the director, in ' under l�iinnesota Statutes, Chapter 364, and is the case of Class II licenszs, determines that the — other.�•ise arailab)e by )aw. The inspector shall application for grant, issuance, renewal or trans- make reasonable and appropriate investigation fer of the license does not meet all the require• � of the.premises or personal property, vehicles or ments.�'law or t�:at there exist grounds for deni- facilities, as may be involved in or related to the al, revocation, suspension or other adverse action licensed activity, and shall request, where appro- against the ]icense or the licensee, the inspector priate, the assistance of other city d.i��isions or or director shall r�commend denial of the applica- � departments in making additional investigations tion and follow the procedures for notice a.ad hear. !or the purpose of determining whether the appli- ing as set forth in Section 310.05. cant is or w-ill be in compliance with all applica- ble ordinances and statutes. The approval of such �d) Class III licenses. Upon receipt of s fully�� • other divisions or departments is not required for COmpleted application.and required fees for a Class issuance of a license unless otherwise required by � �icense, and after the investigation required, � spec�c sections in these chapters. AIl new appli- the inspector shall notify the council. A public � cations shall be reviewed by the zoning adminis- hearing shall be held by the council on tbe grant, trator or his designee for compliance with all re- issuance or transfer of all Class III licenses. The quirements of the Saint Paul Zoning Code, and council may hold a hearing on the r�newal of any no neM� license shall be granted without full com- Class III license. In any case where the inspector pliance with said requirernents. All ne�� applica• recommends denial of the grant, issuance, renewal tions involving a premises, lo:,ation, bui)ding or or transfer of a Class III license, vr where the ' structure shall be referred w the director of the council believes that e��dence might be received at the puhlic hearing which might result in ac- � tion adverse to the application, the inspector or � 2Q30 . . � . , � ��'!�'��f' I.ICENSFS 4 810.05 council shall follow the procedures for aotice and (b) Notice In each such case where adverse ac. bearing as set forth in Section 310.05. Where the tion is or will be considered by the council� the application for the grant, issuance, renewal or council shall in vrriting notify the applicant or transfer of a Class III license meeL all the re- licensEe that adverse action may be taken against quirement of law,and where there e�asts no ground the license or application, and that he is en�itled for adverse action, the council shal] by resolution to a hearing before tbe council. The notice shall direct that the inspector issue said license in ac• be served or ma.iled a reasonable time before the cordance with law. . hearing date, and shall state the place, date and (e) Appeal; Class 1 or Class FI Iicerues. An ap- time of the hearing. The notice shall state the peal to tbe city council may be taken by any issues iavolved or growods upon a•hich the ad- person aggrieved by the grant, issuance, renewal �erse action may be sought or based. The council may request that sucb written notice be prepsred or �-ansfer of a Class I or Class II license; provid- �d served or mailed�by the inspector or by the ed,bowever, that the appeal shall have been filed city attorney. R�ith the city c)erk within thirty (30) days after � the action by the license inspector or director. (c) Hearing. The hearing shall be held by the The on]y grounds for appeal shall be that there council, which shall afford the applicant or the has been an error of law in t�'e grant, issuance, licensee an opportunit�� to present e��dence and '• � rene�•al or transfer of the license. The appeal 'argument as well as meet adverse testimony or shal] be in writing and shall set forth in particu- evidence by reasonable cross�eaamiaation and re� lar the al)eged errors of ]aw. The council shall �uttal evidence. The council may in its discretion conduct a hearing on the appeal within thirty(30) permit other interested persons the opportunity da�•s of t}�e d2te of filing and shall notify the to present te�imony or e�zdence or otherwise par- - licer.see aad the appellant at least ten (10) days ticipate in such hearing. prior to the hearing date. The procedures set forth in Section 310.0�, insofar z:s is practicable, shall �d) Licensee or applicant may be represented app?�• to this �earing. Follow-ing the hearing, the T�e licensee or applicant may represent himself. . council mac �'irm or remand the matter to the or choose to be represented by another. , � . inspector or director, or nay reverse or place con• (e) Recorc�• euidence The council shaIl receive ditions upon the license based on the council's and keep a record of such proceedings, including determination that the decision v��as bzsed on an testimony and exhibits, anc shzll receive and give � error of;aw. The filing ot an appeal shall not stay weigh�. to�.evidence, including hearsay e��idence, tbe issuance of the ]icense. ��which possp.s..ces probative value commonly aceepted (Code 1°55, § 510.44; Ord. No. 17455, § 1,5-21-87) by reasonable and prudent persons in the conduct of their a.�'airs. � ' Sec. 310.05. Hearing procedures. (fl Council action,� resolution to contain findings. (a? Aduerse actior�• notice and hearing require- V�'here the council takes adverse action v�zth re• menis. In an}• case whe:e the council may or in- spect to a license, licensee or applicant for. a Ii- tenc� to consider any adverse action, includiag cense, the resolution by which such aetioa is taken the revucstion or suspension of a license, the im- shall contain �its findings and determination, in- , positien of conditions upon a license,or the denial c)uding the imposition of conditions, if any. • of an app:ication for the grant, issuance, renewal or transfer of a license, the applicant or licensee �� `4�'x''°T''°'1 procedures wh.ere required Where � shall ;�e �iven notice and an opportunity to be the provisions of any statute or ordinance require hea�rd as rovided herein. The•council ma con- 8dciitional notice or hearing procedures, such pro- sider such adverse actions when recommended by �sions shal] be complied with and shal! super- the inspector, by the director, by the director of �e inconsistent provisions of these chapters.This shall include, without limitation by reason of this an}• executive department established pursuant specific reference, Minnesota Statutes, Chapter to Chapter 9 of the Charter, by the city attorney 364, a.nd Minnesota Statutes, Section 340A.415. or on its oK�n initiative. Supp.I`o. 1 . 2031 � �.ICEhSES �3ia.o� - --�-- _ - � -.� . required to engage in a licensed activity, business or profession. (Code 1956, � 510.06) Sec. 310.07. Terazination of licenses; surety bonds; insurance contracts. (a) A utomatic terminati.on, reinstatement; re- sponsibility of lioensee All licen..�es or permits which must,by the provisions of these chapters or otber ordinances or laws, be accompanied by the filing and maintenance of insurance policies, deposits, guarantzes, bonds or certifications shall automati- cally terminate on cancellation or R�thdrawal of ' said policies, deposits, bonds or certifications. No � licensee maS continue to operate or peri'orm the licensed activity sfter such te�mination. The li- , censee is liable and responsible for the filing and mainZenance of such policies, degosits, guarantees, bonds or certifications as are required in these cbapters, and shall not be �:ntitled to assert the . acLs or omissions of agents, brokers, employees, , attorneys or any other per�ons as a defense or � justification for failure to comply u-ith such filing and maintenancE requirem�nts. In the event the �, licensee reinstates and files sucb policies, depos• . . its, bonds or certifications within thirty (30)days, Supp.No. 1 � 2032.1 4 3�0.05 � I.£GISLATNE CODE '—'-- . ' . (� Discretion to hear notzvith,standing i,c,ithdra�oal cordance w-ith the procedures outlined in Secticn or surrender of application.or Zicense The council 310.Ob. may, at its discretion, conduct a hearing regard- ro� Basu for action. Such adverse action ma ing revocation or denial of a Iicense notwithstand- 3' ing that the applicant or licensee bas attempted be based on one or more of tbe following reasons, or purported to withdraw or.swrrender said license which are in addition to any other reason specifi- or application, if the attempted withdrawal or ��y Provided by law or in these chapters: surrender took place after the applicant or licea- (1) T'he license or permit was procured by mis. see had been notified of the hearing aad potential representation of material facts, by fraud, adverse action. . � by deceit or by�ad faith. (i) Continuances. Where a bearing for the put- (2) T'be applicant or one acting in his behalf pose of considering revocation or suspension of a. made oral or written misstatements or mis. license or other disciplinary action involving a ' representations of material facts in or ac- license has been schedu�ed before the council, a companying the application. continuation of the hearing may be granted at the request of the licensee, license applicant, an �3) The license was issued in violation of any inLe.rested person or an attorney repr�esenting the of tbe provisions of the Saint Paul Zoning .• foregoing, onh� zs pro�*ided herein: Code. (�) �'�'�iere the request is made at least twenty- �4) The license or permit v�>as issued in �iola- fow (24) hours prior to the schedu]ed heaz- tion of law, v��ithout authority, or under a ing, the president of the council or the coun- �aterial mistake of fact. . cil ma}• continue the hearing upon a show- (5) The licensee or applicant has failed to com- ing of good cause by the party making the ply with any condition set forth in the li- j request. �. ' cerise, or set forth in the resolution grant• � (2) «`here the request is made less than twenty- ing or reneu•ing the license. four (24)hours before,but not on the day of (61 ?'he licensee or applicant has tzolated any ' the schediled hearing, the council ma�� con- of the prot-isions of these chapi.ers, or of tinue the hearing upon z show-ing of good any statute, ordinance or regulation rea- ' cause bti• the party making the request. sonab)y related to the licensed activity, re- � (3) ��There the request is made on the day said g�dless of whether criminal charges have hearing is schedu)ed, the counci) may grant or have nc�t been brought in connection . a continuance on the condition that tbe therewith. . , party requesting the continuance pay to (7) The acti��ities of tbe licensee in the licensed the City of Saint Paul the city's actual costs activity create or have created a cerious for the court reporter and w7tnesses who danger to t.he public health, safety or wel- appeared for the hearing, or one hundred fare, or the licensee performs or has per- , dollars(S100.00), whichever is the lesser. formed his work or acti��t,y in an unsafe (Code 19�6, � 510.05) manner. � • (8) Failure to keep sidewalks or pedestxian wa3�s Sec. 310.Ofi. Revocation; suspension; adverse reasonably free of snow and ice as required under Chapter 114 of the SainL Paul Legis- actions. lative Code. (a) .Council moy take aduerse actiori The coun- (9) The licensee or applicant has sbo�vn by past cil is suthorized to take adverse action against � misconduct, unfair acts or dealings, or by any license or permit, licensee or applicant for a the frequent abuse of alcohol or other drugs, license, as pro�-ided in and by these chapters. Such that such licensee or applicant is not a per- . actions shall be initiated and carried out ia�'ac- son of the good moral character or fitness ( Supp.No.] � • \ \ 2032 � � � . � _ �'�'f/�� ._IJCENSES , �310.09 �__ . the license is automatically rein_stated on the same (d) Expiration date to be concurrenx with term terms and conditions, and for the same period as of license or permii The expiration date of all originally issued. After thirty (30) days, the ap- such policies, bonds, guarantees or certifications plicant must reapply for a renewal of his license shall be concurrent with the expiration date of as though it were an original application. the license or permit. (b) Bonds and insurance requirements• (Code 1956, § 510.07) (1) Surety Companies: All surety bonds ru�- �c. 310.08. Terms of licenses;uniforn� dates. ning t,c the City of Saint Paul shall be writ- (al All licenses or permits shall be valid for a ten by surety companies authorized to do Period of one yeaz from the date of issuance by business in the State of Minnesota.�All in- �e inspector, except as otherwise provided herein surance policies required by these cha.pters or in tbese chapters or in cases of revocation, shall be written by insurance companies suspension or:era�ination under Section 310.06. authorized t.o do business ia the State of (b) Licensees may continue to operate their busi- �. Minnesota. ness after the expiration date of their license; provided, that the licensee has filed with the in- (2) Approved as to Form: A'ld bonds filed with spector on,or before the expiration date the ap- � the City of Saint Pau] in connection with propriate license application, license fees, insur- the issuance of licenses for whatever pur• ance and bonds. The inspector shall process the pose, and all policies of insurance required renewal application in the manner provided �'or to be filed ��ith or by the City of Saint Paul in this Code. in connection ��ith the issuance of licenses �c) Whenever an�� licensee is the holder of the for any purpose whatscever, shall first be two (2) or more licenses of the City of Saint Paul approt�ed as to form by the city attorney. which expire on different dates, the inspector is (3) Uniform Endorsement: £ach insurance pol- suthorized, at the request of the licensee, tp de•._ icy required to be filed pursuant to these termine a uniform date for the expiration of al) or chapters shall contain the endorsement set any number of such licenses,not�•ithstanding the forth in Chapter 7 of the Saint Paul Legis- term and expiration dates of such licenses as origi� ,,r lative Code. nal}�� issued, and not�•ithstanding any provision as to term of license of any ordinance of the city � . (4) Conditions: All bonds required by these cha� heretofore�'or hereafter enacted. The provisions ters s}�a;l be conditioned that the licensee �hereof shall govern the issuance of any new li- shall observe all ordinances and laws in cense to one already holding a license. •reJation to the licensed acti��ity, business, �d) In order to conform to the foregoing provi- � premi�es or facilities and that he shall con• sions, new licenses may be issued�for a term of duct all such activities or business in con• less than one year, and the license fee therefor � formit�� therewith. Such bonds shall also shall be prorated for the period of issuance. indemnif�• the City of Saint Paul against (Code 1956, � 510.08; Ord. No. 17360, § 1, 6-5-86) all claims, judgments or suits caused by, resulting from or in conr,ection with the �c. 310.09. Fees. , licensed business, premises, activity, thing, �2� APpjication charge � facility, occurrence or otherwise licensed under these chapters. (1) Amount: In addition to the license or per• mit fees set forth in each chapter of this (c) Termination ojbonds and insurance required Code, each applicant shall pay, at the time by�city. Termination of bon�'s and inswance re- of filing, a two dollar fifty cent($2.50) pro- quired to be filed with the city pursuant to these cessing charge for each and every applica- chapters shall be in accordance ��ith the require- tion for a license or permit to be issued by ments oi Chapter 8 of the Saint Paul Leg-isIative the inspector, director or council of the Ci�y Code. of Saint Paul. • 2033 � 3)0.09 . LEGLSI.A�?YE CODE (2? Refunds: Said two dollar fifty cent ($2.50) met when the license has lapsed by reason of processing charge shall not,under any cir- expiratian. � cumstances, be refunded. (Code 1956, § 510.09; Ord. No. 16884, 2-11-82) !b) Fee schedule. The council may by ordinance Sec. 3I0.10. Refunds of fees. deLermine and establish one fee schedule for any or all licenses and permits issued pursuant to ($) Refund where appluation u,i.thdra,wn or de. these chapters, and a sepazate fee schedule for nied; service cha.rge. Unless otherwise specifically applications for such licenses and permits, whicb provided 'by .the particular licensing provisions may include fees to cover�costs incurred by reason involved, where an application for any license is of the late filing. Such fees, in either schedule, withdrawn or denied, the inspector shall refund shall be reasonably related to the costs of sdmin- � Lhe applicant the license.fee submitted less a istration incurred in connection with each such•. �T��'ge to recover in part the costs incurred application, license or permit. Costs of adminis- in processing the application in the amount of tration shall mean and include, but without limi- twenty-five (25)percent of the annual license fee. tation by this specification, both direct and indi- �� Limitation on refund, oth.er cases. In all other rect costs and expenses, such as salaries, wages, cases as provided in paragraph (c), the inspector � benefits and all personnel costs including train• may refund not to exceed one hundred dollars . ing, seminars and schooling, expenses of investi- ��100.00) of fees received in connection with any gations and inspections, handling of inquiries and license, permit or application therefor; provided, requests far assistance, telephone and communi- cations, stationen•, postage, paper, reproduction, that he certify in writing that the amount of the ofiice capital eouipment and all off'ice supplies. refund represents a sum over and above the rea• Such fee schedules as 2dopted by ordinance and sonable cos� of administration incurred up to r that time.in connection u•ith said license, permit `/ posted in the off'ice o, the inspec�.or shall super- • � sede inconsistent fee pro•-isions in these chapters or application. The director may ref�nd not to or in other ordinances or laws. exceed two hundred fifiy dollars (S254.00)of such �� fees upon a like certification by the inspector. ' � (c) Fee for one year, may be prorated Unless The council may by resolution authorize all re- _ otherH-i_� speciliczlh� proti�ded, the license fee stated funds upon a like certi�'ication by t�ie inspector. is for a period of one ��ear. Such fee may be pro- (c) Bnses for refunds. Refunds under paragraph . rated ��here a license is issued for a period of less (E) ma}�-be made to the licensee or his estate: than a }'ear. (1) ��re the place of business of the licensee (d) Lnte fee. Un)ess otherwise spec�cally pro- or his principal equipment is destroyed or .�ided bv the particular licensing provisions in- so damaged by f:re or any other cause that •�o1��ed, an applicant for the renew•al of a license the licensee cea�es for the remainder of the v�•ho ma�;es application for such renewal after the licensed period to engage in the license� expiration date of such license shall be charged a activity or business; late fee for each such license. The late fee shall be �2� V��here tt,e business or licensed activity ceases ir, addition to any other fee or payment required, by reason of the death or illness of the � � ' and sha11 be ten (10)percent of the annual license ]icensee or the sole employee or manager; fPe for such license for each thirty-day period or or por�ion therEOf�►�hich has elapsed after the expi- ration date of such license. The late fee shall not (3) Where it has become unla��ful for the li- exceed fifty (50?percent af the annual license fee. censee to continue ir: the business or licensed If an�� pro�•ision of these chapters imposes more activity other than by revocation, suspen- stringent or additional requirements for the issu• sion, denial or any criminal activity on the ance of an original license than would be the case part of the licensee. for mere renev,al, those requirements must be (Code 1956, as amended, § 510.10) /, . � 2034 . �� , - ��_�� .,�.__ --I.TCENSES .�310.11 - Sec. 310.11. T�-ansfers; geaeral. tfl Transfer, definition. "T�ansfer," as used in (a) Li.cense a priuilege, not property. All licen- �ese chapters, shall include s_transfer from per- ses or perm.iu issued by the City oi Saint Paul son to person, or from place to place, or a transfer pursuant to tbese chapters or other ordinances or of stock in a corporate licensee, or of sh�res or ]aws confer a rivile e.on the licensee to en e interests in a partnership or other legal entit��. in the activit por oc upation so licensed, an do ��'�fer," as used in these chapters, shall not . not constitute property or property rights or cre- inclvde the instance where a license is held by an ate any such rights in any licensee. No such li- individual or partnership and the transfer i� by cense or permit may be seized, levied upon, at- said individual or partnership to a corporation in tached, executed upon,assessed or in any manner Which the majority of the stock is held by said taken for the purpose of satisfaction of any debt individual or by the members of said partnership. or obligation whatever. '� (g) Assignmeni and bond to accompany appli- (b) Licenses transrerable; conditions. All licen- catior� In the case of a transfer fi�om person to , ses issued by the City of Saiat Pau] shall be trans- Person, the application for transfer shall be ac- ferable unless the sgec�c chapter of the Saint companied by a wri�ten assignment of all rights Paul Legislative Code pertaini'�r�g to each specific of the original )icensee in and to the license and . license shall specifically prohibit the transfer of shall be accompanied by a surety bond in amonnt such license. No transfer of any Class III license and in form required of an original licensee. issued b}� the City of Saint Paul shall be effective (h) Public corporations. Notu�ithstanding other until the council of the City of Saint Paul has provisions of this chapter, publicly owned corpo- approved the transfer fol)owing a public hearing, rations whose stock is traded in the open market � . and a re..�olution approving said transfer is pas.5ed, may comply with the transfer requirements per- approved and published. Both the transferor and taining to stock ownership and stock transfez by transferee shall make application for transfer of a furnishing the inspector on request w-itlz t1�e names licens.e on such forms as may be prescribed by the and addresses of all stockholders of record upon dirision, and in accordance with Section 310.02. each renewal of the license. • (c) Transfer tczx In all cases of transLer of a (i) Affidavit of transferor. No license transfer , license fron a present licensee to any other per- shall be effective un)ess the'transferor submits son, there shal) be a tax on said transfer in the an affidavit of such transferor, taken under oath, � amount of t��enty-fve (25) percer.t of the annual stating the�following: . license fee charged for said license, said tax to be (1). That in the case of Class III licenses, the paid by the transferee. . ,transferor-affiant has posted notice to al] ' ' (d) Trans�er t�• deposiz retained or returned employees in a conspicuous place on the Wher.ever an�application is made for transfer of a licensed premises notifyin� all employees . license, the amuunt as set out in paragraph (c) of the time,place and date cf heazing of the shall be deposited ��ith said application. If the transfer of the Iicense to be held befnre the transfer of license is approved, the amount depos- Saint Paul City Council; � ited shall be rztzined by the city. If the transfer is (2) T'hat said notice specified in subparagraph denied, the amount deposited shal] be returned to (1) above ��as posted continuously for four• • the party depositing the same, in accordance with teen (14) days; the requirements and conditions in Section 310.10. (3) That transferor has paid all wages due and (e) Transjer tus; exception. Paragraphs (c) and o��ing the persons emp)oyed by the trans- (d)shalJ not apply in any case when,by the terms feror or that an agreement�as been reached a ment �f the full annual li-. between transferor and all employees as to of these chapters, p y censee fee or a prorated year]y annual license fee the payment of wages due and owing; is provided for on the part of the transferee befare (4) That transferor has made payment to all any transfer of Iicense is made effective by the employees in lieu of vacatiun time earned action of appro��ing the transfer. by said employees or in lieu thereof an • -� 2035 �310.11 L.EGISI.ATjVE CODE � agreement has been reached between �-ans. or other law shall at al] times while open to tbe feror and all emp)oyees as to payment in public or while being used or occupied for any lieu of vacation time earned; purpose be open also to inspection and examina. t5) That transferor has satisfactori)y and com. tion by any police, fire, or healtb officer or any p)etely complied with his contractual obli• b��r of the city,as well as the inspectAr, gations pertaining to empJoyer con�-ibutions �Code 1956, § 510.12) to employee benefit programs which i.nclude, �c. 310.13. Renewai. but are not l:mited to, pension programs, hosp�t,al,medical and life in.,surar,ce programs, Every license renewal under these chapters may profit-�haring programs and holiday pay be �enied for any licensee who is delinqueat in benefits. any payment or contribution to a health and wel- fare trust or pension tras�;-or similar progra,m, (j) Deceased licensee Notwithstanding any other�. �blished for the benefit of his employees. provision of these chapters, in any case where a (Code 1956, § 510.I3) liquor license is he)d by a person not incurporated and where the license would, by reason of the �c. 310.14. Savings clause. death of said licensee, lapse to the�city in the absence of this paragraph, the suthoriu,ed repre- �a� � any provision in these chapters is held . � sentative of the estate of the deceased licensee unconstitutional or invalid by a court of compe• may consent to and seek to transfer said license �nt jurisdiction, the invalidity shall extend only to the sun�it•ing spouse of the licensee. The trans- � the provision involved an"tl the remainder of � fer shall be subject to all applicable requirements these chapters shall remain in force and effect to , of these chapters and existing law. be construed as a whole. (k) No approval under certain conditions. The �� e repeal of any ordinance by this ordi• � counci) shall not approve any tra�sfer u�here ei- nance (which enacts the Uniform License Ordi- �, ther party has not complied with the'terms of any nance} shall not �ff'ect or impair any act done, . contract or agreement regarding employee bene- any rights vested or accrued, or any suit,proceed- , fit or fringe benefit programs; including, but not ing or prosecution had or commenced in any mat- ter, prior to the date this ordinance became effec- limited to, pension, hospitalization, medical and t;ve. Every such act done or right vested or accrued a life insurance, profit-sharing or holiday pay pro- shall remain in full force and effect to all intents grams; provided, that any person or organization and purposes as�if the repea)ed ordinances had objecting to a transfer because of failure to pay �,�emselves remained in force and effect. Every employee benefit or fringe benefit programs shall such suit,-�roceeding or prosecution may be con- file a �•ritten notice of objection uith the license tinued after repea) as though the repealed ordi- inspector seven (7) days prior to the scheduled nances were fully in efiect. A suit, proceeding or public hearing on the transfer, and said notice prosecution which is based upon an act done, a shall contain a comp)ete itemization of the objec- , right vested or accrued, or a violation committed� tor s claim. prior to repeal of the repealed ordinances, but (l) Transfer of more than one license if one is which is commenced or instituted subsequent to Class IIL If an application is made to transfer repeal of the repealed ordinances, shall be brought ' more than one license at the same time, the in- pursuant to and under the provisions of such re• spectcr may, if one of the ]icenses is a Class III pea)ed ordinances as though they continued to be licer�se,handle all said licenses as Class III licenses. in full force and ef�'ect. (Code 1956, � 510.11; Ord. No. 16822, 9•3-8I) (Code 1956, § 510.14) Sec. 31Q.I2. Inspection of pre�nises. Sec. 310.15. Penalty. The premises, facilities, place, device or any Any person who violates any provision of these thing named in any license issued pursuant to chapters, or other ordinances or law; relating t.o � � any pro�•ision of the Saint Paul Leg-is3ative Code licensing, or w�ho aids, advises, hires� counsels or 2036 . . LICEATSFS �818.01 �. �..�__ — conspires with or otherwise procures anotber to Sec. 316.02. Fee. . violate any provision of these chapters or other ordinances or laws relatiag to Iicensing is guilty The fee required is forty-five dollars (�45.00). of a misdemeanar and may be sentenced in ac- (Code 1956, § 384.02) cordance with Section 1.05 of the Saint Paul Leg- islative Code. The term "person," in addition to Chapter 317. Amusement Rides the definition in SecLion 310.01, shall for the pur- . pose of this section include the individual part- �c. 317.01. License required. ners or membe;s of any partnership oi corpora- tion, and as to corporations,the officers,agents or No person shall engage in the business of pro- members thereof, who shall be responsible,for tbe v�ding amusement rides,for charge,to the public violation. in Saint Pau] without$ license. (Code 1956, § 510.15) '. (Code 1956, § 411.01) � � . Sec. 310.16. License fees, annual increases. �c. 3I7.02. Fee. Efiective on January 1 of e�ch calendar year, �e fee required is one hundred dollars($100.00) . all license fees, except building trades business for each location at which such person will oper• license fees and fees for building trades certifi- ate and maintain the business of providing such cates of competency, shall increase by tbe per- rides. centage increase in the budget for the division of (Code 1956, § 411.02) • license and permit administration of the depart- ment of finance and management services. Prior �yap�r 318. Mechanical Amusement 13evices � to No��ember 1 of each yeaz, the director of fi- nance and management services shall file with the cit�� clerk a notice of the percentage increase, �c'. 318.01. License required; definitions. _ if an��, in license fees. No person shall own and allow to be operated (Ord. No. 1688�, 2-11$2; Ord. No. 17059, 14-20$3; {or business purposes an�� coin-operated mecha�i- � Ord. I`o. 17303, §.4, 10•29-85) cal amusement device w�itho�t a license. A coin- ..- operated mechanical amusement device is hereby Chapters 311-314. R.eserved defined as,any machine which, upon the insertion ..ef a coin, token o- slug, operates or m�+y be oper� SUBTITLE B. CLASS I LICENSES ated by the public for use as a game, entertain• ment. or amuser.�ent, which amusement device � Chapter 315. Reserved• contains no automatic payoff device for the re- . turn of money, coins, checks, tokens or merchan- dise, or which provides no such pay-off by any � Chapter 316. Animal Foods other means or manner. The term '.`coin-aperated Manuiacturing and Distributing mechanical amueemsnt device" shall include so- cal)ed pinball machines; music inachines; coin- Sec. 316.01. License required. operated television units;motion picture machines; • amusement rides, excepting those provided for No person shall engage in the business of the under Chapter 317,pertaining to amusement rides manufacture or distribution of animal foods in of the tvpe used at carnivals; table shuf�'leboard Saint Paul w•ithout a license. games or similar games of amusement for which (Code 1956, § 384.01) a fee is charged to players for the p)aying thereof; � and all other machines which, by the insertion of •Ed�wr'6 note—The IicenFes under th;s chapeer, derived a coin or token, operate for the entertainment or from 44 345.01-345.03 of the city's 1956 Code, Were redesig• na:rd as Class!II licenses by Ord.lvo. 17207,adopt.ed Jan.31, ��ment of the player,except weighing machines. l9&5,and recodified as Ch.a23. (Code 1956, §§ 412.01, 412.02) 2U3? . . ' . ��.,-�,��' t 3l 5.02 LEGISLATNE CODE �... ' � � . Sec. 318.02. Fee. another; provided, however, that the ownez shall ` (a) Am.usement rides. The fee required for li- notify the inspector in writing at least five (5) censes for coin-operated amusement rides shall days before the move to the new location, advis. be one hundred seventy-five dollars (5175.00)for ing him of the name and address of the new ]oca. ten (10) amusement ride machines or fewer, and tion; and, further provided, that in the event the fift,een dollars ($15.00)per machine for each amuse- inspect,or notifies the owner that the intended ment ride machines in excess of t,en dollars(�10.00). ��at�on is not properly licensed if�.a license is • required, is in violation of zoning, health, fire or (b') Music machines; teleuision. The fee required other codes, or is otherwise unlawfully existing ar for licenses for music machines shall be twenty- operated, tben the ov��r,er shall not move any ma• five dollars (�25.00) per machine; and for coin- chines to that location until the inspector advises operated television units shalJ be sixteen dollars that the illegality has beea femoved. (S16.G0) per ]ocation regardless of the number of'• (Code 1956, § 412.03; Ord. I�o. 17134, 5-10-84) machines per )ocation. � � (c) Other deuices. The fee required for licenses �c. 318.05. No refund upon revocation; con- for all other coin-operated mechanical amusement fiscation of unlicensed machines. de�•ices is seven hundred fifty dol)at`s (S7�0.00), Upon revocation of a license provided for here- •, together �•ith an additional fee of fift}• dollars in, no refund shall be made of any portion of the tS�0.00) for each machine other than music ma- license fee. The inspector shall confiscate any ma- chines, coin-operated television units, or coin- chine set up for operation by the pubIic if the operated amusement rides owned and operated same is not properly licensed or is operated by an b.•zhe licencee. owner or operator not licensed for said purpose. �tCodE 1956, F 412.03; Ord. No. 16754, 4•30•81; (Code 1956, § 412.03) Ord. :�o. 1685�, 2•11-52) _ C Sec. 3IS.06. Gambling proh.ibited. ' Sec. 318.03. Applicatian. I�Teither any person licensed under these chap- . . 'I'he applicat.ion shall include, in addition to ters nor any employee of �ny such licencee shall o:her required information, a list of the )oca:ions permit to be operated in any such licensee's place =- ��here the app)icant proposes to install and r�per- of business any such machine or device for the � ate such machines, thE kind and number thereof, making of side bets or gambling in any form. and the.address of the place where the macr:ines (Code.L956, § 412.06) � are.to be s.ored. All app;ications shaU contzin a G�'oss reference—Gambling,Ch.2�0; law�ful gambling,Ch. statement of the list price of such machines. 402. (Code 1956, § 412.03) . � ' � Sec. 3I8.07. L,oud music prohibited;hours of Sec. 3I8.0-�. license tags;no transfer, removal, operation. (a) The licensee shall receive, in addition to the No licensee shall permit the operation of a music • Jicense, one annual license tag for each rr.achine machine upon his premises in such manner that he i� licensed to o�•n, ��•hich tag shall be di�played the music is audible in adjoining premises to the . upon the machine in a prominent place. Such disturbance of the residents of such premises be• � license tags must be secured and affixed to the tween the hours of 10:00 p.m. and 1:00 a.m. on mackines before machines are set up for opera- N'eekdays; provided, ho�vever, thai the operation tion b�• the public. It shal; be the responsibility of of suc�: machines is permitted from 10:00 p.m. on licensee to obtain and zffix such tags to said Saturdays unti] 2:00 a.m. on Sundays, and, fur- machines. ther, that no licensee shall permit the operation of any music machine in any manner between the (b) \0 license issued hereunder may be trans- hours of 1:00 a.m. and 9:OQ a.m. on K�eekdays, nor ferred, but a machine ��ith license tag aff'ixed on Sundays from 2:00 a.m. until 9:00 a.m. ," ma�� be mo�•ed b�• the aw�ner from one )ocation to (Code 1956, § 412.07} i 2038 � ��i�a� ::�.��: a�>. sr� oF r�orrA �-' OFFICE OF ADNIINISTRATIVE HEARINGS �. �'....;:. Eff'.ARII� S[JB�POII�► T� Ms. Jody Hummel,,,,, Briq�s tG Mnrgan� w-��nn F;rst National Bank Buildinct, St. Paul, Minnesota 55101 GREF.�IlQGS: YOU ARE I�2E8Y OCNN�I�IDID to lay aside all your business ar�d excuses ar�d to appear before Carol Grant, Administrative Law Judge of the Office of Administrative Hearings of the State of Minnesota at Room 1345, Ramsev County Courthouse in the City of St. Paul , , Ramsev Cotuzty, Minnesota, on the 2 4 th day of June , 19 8 8 ' at 9=�� o'clock in the �fore noon, to appear as a witness in the matter of the Licenses of the Pelham Market YW ARE FUR'I�2 �t�IDID to bring and have� with you, to be used as evidence in the hearing, if required, the following: Pursuant to the authority granted in Minn. Stat. § 14.51, Witness, the Honorable Duane R. Harves, Chief Administrative Law Judge, at Minneap�lis, Minnesota, this 9th clay of June , 19 88 . C%�� DUANE R. I�R�IES Chief Administrative Law Judg e 612/341-7600 HG-00061-01 ��/�.�� LAW OFFICES I�:LTRZMAN, GRANT, NtAN1��HAN, B�UTH & BART�FR A PARTNERSHIP OF PROFESSIONAI,CORPORATIONS 2#0� Stevens Avenue South Minneapolis,Minnesota 55q4� (61�)871-900� , Marc G. Kurzman �� Mankato Carol Grant �� James H. Manahan Linda M. Ojala q��,.r Joseph P. Bluth James E. Moon �� Ann B. Barker r7CRre1lVCia (507) 387-5661 RECEfVED Juiy �, i9s8 JUL271988 CITY CLERK George Beck Office of Administrative Hearings Fifth Floor, Flour Exchange Building 310 Fourth Avenue South Minneapolis, MN 55415 Re: In the Matter of the Licenses of the Pelham Market Dear George: I am forwarding the enclosed r the ' Pelha , n h City Exhibits 1 and , y other file materials in my possession. C��'�O�C_, . Carol Grant Administrative Law Judge CG/tw enc. P.:S. George, please check the boilerplate at the end of page three - I didn't have a model for a liquor license case. Attorneys admitted to practice in Florida,Minnesota and New York ��""�T�d" City-89-005-CG 53-2101-2544-6 STATE OF MINNES OTA REC E I�L�,'' OF'F'ICE OF ADMINISTRATIVE HEARINGS �� y � ��v��; FOR THE CIR CQ��. PAUL �S�VE t � In the Matter of �ll� 2� �ggg FINDING3 OF FACT, the Licenses of the CONCLUSION3, AND Pelham Market CITY CLERK REC01�'.NDATION The above-entitled matter came on for hearing before Administrative Law Judge Carol Grant on June 24, 1988, at 9:00 a.m. , Seventh Floor, Ramsey Countp Courthouse, St. Paul, Minnesota. The hearing in this matter concluded on June 24, 1988. Philip Byrne, Assistant City Attorney, Attorney for the City of St. Paul-License Inspector, 647 City Hall, St. Paul, MN 55102, appeared on behalf of the City of St. Paul. No appearance was made by Roger Maunders, or any representative of Pelham Market. This Report is submitted to the St. Paul City Council pursuant to Section 310.05 ( c-1) of the St. Paul Legislative Code. STATEMENT OF ISSUE The issue to be determined in this proceeding is whether sanctions should be imposed upon the licenseholder on the qround that a clerk in the Pelham Market sold 3. 2 beer to a person ` under the aqe of twentp-one years in violation of Minn. Stat. 340A. 503 Subd. 2 and St. Paul Legis. Code 410. 04(a) . FINDINGS OF FACT 1. On March 31, 1988, at 5:45 p.m. , St. Paul Police Reserve Officer Jody Hummel entered the Pelham Grocery Store and purchased a sfx-pack of Schmidt beer. Ms. Hummel' s birth date is June 1, 1968. She was nineteen pears old at the time of the purchase. 2. The salesperson in the grocerp store did not ask Ms. Hummel any questions about her age before allowing her to purchase the beer. There was one other person in the store at the time. 3. On April 22, 1988, the licensee was sent a letter advising him that the City proposed to take adverse action based upon the March 31, 1988 incident. This letter was received by the licensee. 4. On May 23, 1988, a Notice of Hearing was mailed to the licensee at the same address as the April 22, 1988 notification. 5. On June 23, 1988, Assistant City Attorney Philip Bprne called the lfcensee to advise him about a roo� change for the hearinq. 6. The licensee did not appear at the hearing on June 24, 1988. After waiting for him to appear, the Assistant City Attorney called him. The licensee stated that he was busy the week of the hearinq, had two weddings to work on, had discussed with his clerk procedures for checkinq on identification, and would not be attending the hearing. Based upon the foreqoing Findings of Fact, the Administrative Law Judge makes the followinq: CONCLUSIONS 1. The Administrative Law Judge and the St. Paul City Council have jurisdiction over this matter pursuant to Minn. Stat. 340A.503, Subd. 2 and St. Paul Legis. Code 410.04(a) . The Notice of Hearing was proper in this matter and all procedural requirements of law or rule have been fulfilled by the Citp. 2. St. Paul Legis. Code Sec. 410.04(a) provides: "No intozicating malt liquor shall be sold or furnished for anp purpose whatever to any person under twentp-one years of aqe. . . " . 3. The licensee' s clerk sold non-intoxicatinq malt liquor to a person under twenty-one years of age. 4. The licensee, through its agent, has violated St. Paul Legis. Code Sec. 410.04(a) . Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RECOMMENDID that the City Council take disciplinary action against the licensee as follows: 1. That the Council impose five consecutive days' suspension of the Pelham Market license for the sale of non-intoxicating malt liquor. 2, As and for failure to give advance notice of non- appearance at the hearinq, and to reimburse the City for expenses caused thereby, the licensee shall pap a f ine of $250. 00. Dated this 7th day of July, 1988. C�� ._a_�� Carol Grant Administrative Law Judge Pursuant to Chapter 14.62, a copy of the Decision and Order in the above-entitled matter shall be served upon each party or the party' s representative and the Administrative Law Judqe by first class mail. ��;'� J U N � 81988+ p �`�"� CITY OF SAINT PAUL s>4�jT1 �. .Y 10 �� g; �t, OFFICE OF THE CITY ATTORNEY '� un��,�uu ,� ��° 1O1 �'0° „�' EDWARD P. STARR, CITY ATTORNEY ;m '"��'°,',��''�� 647 City Hall, Saint Paul. Minnesota 55102 612-298-5121 GEORGE LATIMER MAYOR I�EC��F��,- June 27 , 1988 � �� 1�u� �(��11E N[s . Carol Grant �.. Administrative La�a Judge 2404 Stevens Avenue South Minneapolis , MN. 55404 I�ECEIVED RE : In re Licenses of the Pelham Market JUL 2 7 1988 Dear Ms . Grant : CITY CLERK The City is billed for the time of administrative law judges at $69 . 00 an hour based on the first invoice I received from r2s . Joanne Hedlund at the Office of Administrative Hearings , 341-7613 . Very truly yours , �, PHILIP . BYRNE Assistant City A torney .�� . _ � .�,`� " F��.� `�- � � ` CITY OF SAINT PAUL s.��' ► •. ' €`� C�F F I C E O F T H E C I T Y A 1 T O RN EY _; ^� y.. t; "u�t�n�ii .: �' '"'-�'= s=� �. EDWARD P. STAf��p��IriI�TTORNEY , •.. ,,, c,:� , �" '¢'"� RECEIVED �' �'ty Hall, s,;� a ��sioz �(f� 1 �a s,�, GEORGE LATIMER � � ��8 MAYOR JUL 2 71988 May 23, 1988 C1Tlf CLERK Mr . Roger Maunders NOTICE OF HEARING Pelham Market � 7�9 Pelham Boulevard St. Paul , Mn. 55114 RE: Pelham Market Dear Mr . Maunders : � � This is to notify you that a hearing will be held concerning the l icensed premises stated above at the following time, date and pl ac e : Date : June 24 , 1988 Time: 9: 06 A. M. - Place : Room' 1345, Ramsey County Courthouse 20 west Fourth Street , St . Paul , Mn . 55162 ihe ; udce will be an Administrative La•w Judge from the State of y?nnesc�a Office of Administrative Hearings : `:a-�e . *'� . Cz�^•'_ G�ant ' _. - ; . � .. _ . �_. � . � , � _ .-� . . .. _ ._ - r,: .. _ . _ ; .: . . . . ' • ,T�:,.e �our:c il o: �:,e Ci .y o � Sain� raul h� s thc au�ror ity to prov ide for hear ings concerning 1 icensed prem.i ses , and for actior. � � ' , a.gairist such licenses , under Chapter 31Q , , including sections 319. 05 anc3 310.06 , of the Saint Paul Legislative Code. In th2 case of� licenses for into�cicating and non- intoxicating liquor , � authority is also conveyed by section 340A.415 of the Minnesota Statutes . . � . ,. Evidence will be presented to the judge which may lead to adverse . acticn aga inst the 1 icense or 1 icenseholder as follows : ' • � On March 31 , 1988 , a clerk in the Pelham Market sold an alco:�olic beverage , to=wit , non= intoxicating malt liquor (3. 2 beer) to a person under the age of 21 in violation of � Minn. Stat. 1986 , section 340A. 503 , subd. 2, and section 410 . 04 (a) of the Saint Paul Legislative Code. . i'� �-r�'; . � �. You have the right to be represented by an attor�ey before and during the hearing if you .so choose , or you can represent yourself. You may also have a person'of your choice represent you, to the extent not prohibited as unauthorized practice of law. The hearing will �. be conducted in accordance with the requirements o: sections 14.5'7 to 14.62 of the Minnesota Statutes , and such parts of .the procedures under section 31�. 65 of the Saint Paul Legislative Code as may be applicable. At hearing , the Administrative Law Judge will have all parties identify themselves for the record. Then the City will present i ts wi tnesses and ev idence, each of whom the 1 icensee or attorney may cross�examine. The licensee may then offer in rebuttal any witnesses or evidence it -nay wish to present , each of whom the . City attorney may cross=examine. The .Administrative Law Juage , :may in addition hear relevant and material testimony from persons not presented as witnesses who have a substantial interest in the outcome of the proceeding; for exa�nple, the owners or occupants of �roperty located in close proximity to the lice►�sed pre:�ises may �:ave su'�stantial interest in the outcom2 of Lr�e proceed ing. Concluding argu�ents �nay be T,ade by the parties. Foll�wing the hearin„ the Judge will prepare Findings of Fact, Conclusions of L3w , an� a soecific reco,�nmen;�ation for action to be taken. You sh� uld bring to the hearing all docu*nents , r �cords and `r7 1 �") � S e e e �J� i j •w : 1 � � •, e r..i 4^. e- v � � r e - � :. C.^. . _ C� _ _.. c'' E � 1:�:�C J ., _ ^_ Q _ . ..._.��:t:.5 _ .. _ ...'7c_ � .�_ c- __. ..� .,�_ ...._ �_ ° _ .. . ....._ c .� , _ 4-° -- - - " - , l+.. � ..� . _ " _ � ' ' � . .. _ .. _ .. ._ _.. _ �. � .. . . . ... _ .�. .. .. � . .. .. .. . . .. �,�.l.. ..r _ .__. ' . v� C'S� J:.. _. _. . \.v:. . _ � . . � . . i � � you t'r;:r�x tr,�� ;.'r,is :r, a��er can �e r �solve6 or se�tie3 withou� ' a for:� al hearing , please contact or have your attc�rney contact , . , the undersigned. If a stipulation or agreement can '�e reached as . � to the facts , that stipulation will be presented to th2 Ad:ninistrat'ive Law Judge for incorporation into ' his or her reco;�mendation for Council action . . If you fail to appear at the hearing, the allegations against yo� • which have been stated earlier in this notice may be taken as , . - � _ . true and your ability to challenge them forfeited. If nonspublic � ' ' data is received into evidence at the hearing , it may become _ „,. / � �, ' r;<; � �. ,, ��'�./ . ��' �� ♦ : �� . . • �Fy;. � d' � � g', 4,,w G' publ ic unless objection is made and rel ief requested under Minnesota Statutes , section 14. 60, subdivision 2. Very truly yours, PHILIP B. BYRNE Assistant City Attorney (612 ) 298-5121 Attny. Reg . No . 13961 . • , cc: Joseph F. Carchedi License Inspector � Lt . Donald Winger vice Unit Albert B. Olson City Clerk t�!s . Carol Grant ' . . ��d��-�j�� =� t;�-*�=;�. � �ITY OF SAIf�T PAUL _� "^ '��` OFFICE OF TNE CITY ATTORNEY .o .. �� ;� •�� :� . % ��ii�i ii�u ^_ . -: EDWARD P. STARR, CITY ATTORNEY �_••:�..��`� RECEIVED 647 Ciiy Hail, Saint Paul, Minnesota 55102 GEORGE LATIMER 612-298-5121 ��A,'oR JUL 2 71988 M a y 2 3, 19 8 8 CITY CLERK Mr . Roger Maunders NOTICE OF HEARING Pelham Market 719 Pelham Boulevard St. Paul , Mn. 55114 RE: Felham Market Dear Mr . Maunders : This is to notify you that a hearing will be held concerning the 1 icensed premises stated above at the following time , date and place . � Date : June 24, 1988 T ime : 9: �g A. M. Place : Room' 1345, Ramsey County Courthouse 2 �! L�est Fourth Street , St . Paul , Mn„ 55102 ^:;� ju::ge wili be an P.dministrative Law Judge from the State of �::nneso}a Office of Administrative Hearings : Narne : Ms . Carol Grant 24�4 Stevens Avenue South ' Minneapolis , Mn . 554 �4 Telephone: 871-90(d4 ' � ::'�e Co unc il of the Ci ty o f Sa int Paul ha s the au�tho r i ty to pro�Jide for hearings concerning licensed prem.ises , and for action � ' � a. ainst such licenses , under Chapter 310 , . includin� sections � i �. �5 and 316.� 6 , of the Saint Paul Legislatiue Code�. In the case of� licenses for intoxicating anC ncn- intax ?cating liquor , authority is a:Lso conveyed by section 34f6A.41S �f the Minnesota Sta tutes . , . EvidEnce will be presented to the judge which may lead to adverse . action aqa inst the 1 icense or 1 icenseholder as follows : , � � On March 31 , 1988 , a clerk in the Pelham Market sold an alcoholic beverage , to=wit , non= intoxicating malt liquor (3. 2 beer) to a person under the age of 21 in violation of Minn. Stat . 1986 , section 340A. 5�13 , subd. 2, and section 410 . 94 (a) of the Saint Paul Legislative Code. � You have the r :�ght to be represented by an attorney before and dur ing the hear ing if you so ch4ose , or you can represent yourself. You may also have a person of your choice represent you, to the extent not prohibited as unauthorized practice of law. The hearing will be conc3ucted in accordance with the requirements of, se�tions 14.57 to 14. 62 of the Minnesota Statutes , and such parts of .the pr_ ocedures under section 310. 05 of the Saint Paul Legislative Code as may be applicable. �t hearing , the Administrative Law Judge will have all parties identify themselves for the record. Then the City will present its witnesses and evidence, each of whom the licensee or attorney _. - � cross=exam ine. The l icensee may then of fer in rebuttal any �w°� tnesses or evidence it -nay wish to present , each of whom the Lity =ttorney �ay cross-examine. The Administrative Law Judge �;-.ay in addition `�e-�r relevant and material testimony from persons nct nresented as wltnesses who have a sunstantial interes� in the � c��tcome oF the proceeding; for example, the owners or occupants .,� :�r�p�_rty lo�.ated in close proximity to the licensed pre-�ises T ��.� '��:�e substantial intezest in the outcome of the proceeding. ;�,in�� •�.::: ing �r�u�^en=s may be made by the parties. Following the �:�=�rin-: , th� Judge �aill prepare Findings of Fact, Conclusions of ��a , ana a specific r2commendation for action to be taken. You should bring to the hearing all documents , records and wi t�esses you will or ?nay need to support your position . Su:��oenas ;nay he a�,�ailable to compel the attendance of •witness�s or the production of documents in conformity with Minnesota Ru�2s, ��rt i4Cf0.7(��0. • - If• you tnink that rhis matter can be resolved or settled without a �or�al hearing , please contact or have your attorney contact . tne undersic�nedo If a stipulation or agreement can be reached as . to the facts , that stioulation will be presented to the f��ninistrat'ive Law Judge for incorporation intc " his or her reco;�:�endation �or Council action. . If you fail to appear at the hearing, the allegations against you . which have beer� stated earlier in this notice may be taken as . . true and your ability to challenge them forfeited. If non=public � ' � data is received into evidence at the hearing , it may become