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99-767ORiG1NAL Presented By Refened To RESOLUTION CITY OF SAINT PAUL, NIINNESOTA Council File # l _l ��` Gteen Sheet # b� `"l�Z �� Committee: Date 1 WHEREAS, the Office of License, Inspections and Environmental Protection (LIEP) 2 initiated adverse action against the licenses of James Bailey, Inc. d/b/a Arlington Pub, 721 Payne 3 Avenue for alleged violations of the laws relating to sale and service of alcohol; and 4 5 WHEREAS, a hearing was held before Admuustrative Law Judge Beverly Jones 6 Heydinger on May 4, 1999 and she issued Findings of Fact, Conclusions of Law and 7 Recommendarion on June 25, 1999 in which she found that the City had not proved the 8 allegations, and recommended no action against the licenses; and 9 10 WIIEREAS, at the hearing on July 28, 1999, LIEP did not file exceptions to the Report 11 but recommended the adoption of the ALJ's Report and Recommendation; now, therefore, be it 12 13 RESOLVED, that the Council of the City of Saint Paul, after due deliberation based upon 14 all of the files, records and proceedings herein, adopts the ALJ's Findings, Conclusions and 15 Recommendarion, and the sazne shall be attached and incorporated herein by reference; and be it 16 17 18 19 20 21 22 FURTHER RESOLVED, that the adverse action against the licenses held by James Bailey, d/b/a Arlington Pub, 721 Payne Avenue, is hereby dismissed and no penalty shall be imposed. A copy of this Resolution, as adopted, shall be sent by first class mail to the Licensee, his attorney and the Administrative Law Judge. Requested by nepaztment of: By: Form Approved y City Attorney BY: X✓ �-�l s'K-e/` Approved by May for Submission to Council By: Appx By: By: Adopted by Council: Date ��C.`�l \ � Adoption Certified by Council Secretaxy �R-�C� 'ARTMINf/OFFICE/COUNCIL DATE WITNTED City Council Offices 8/4/99 GREEN SHEET No 63432 YTAC7 PERSOP} 8 PHOhE �nMFauDa�� InlllaflC�s D B ostro m, 266-8660 �„�,�� .� ST BE ON COUNCIL AGENM 8Y (M7� AESiGM 11, 1949 �� a,r.noaEr arcaFrx_ aourixc ono�e ❑ wwxcuLLafmr,E+ow. wux�u�sEav�accrc ❑wvdtlae.�sascv+i) ❑ � TOTAL # OF SIGNATURE PAGES (CLIP ALL IOCATIONS FOR SIGNATURE) Dismissing the adverse action against licenses held by James &ailey, DBA Arlingeon Pub, 721 Payne Avenue. PIANNING COMMISSfON Cf6 CAMMITTEE CIVfL SERYICE COMMISSION Hes tlris peismlf�m everworked under a coMract for this depaAment7 YES NO Fias this pHSONfirtn ever 6een a dty empioyee7 YES NO Doesthis pe�sonrFrm possess a sldN �rot �wnrial{ypo�sed by any curteM city empbyee? YES NO �s th� pe'sonlfitm atarpeted vcv�d«4 YES NO ,�r��rs�� s��rch G��2�r �llG 9� 4 1999 eosrmEV�t+ufi euocerEO <euee� eeuq ncrn�n eware�n v�s No INFORMATION (IXPWN)- �t - �� 15-2� 11-12155-3 STATE OF MINNESOfA OFFfCE OF Ai7PJlWfSTRATIVE HEARINGS �OR THE 5aINT PAUL CIN COUNCIL in the Matter of ihe License heid by James Bailey, lnc. d/b/a Arlington Pub for the premises located at 721 Payne Avenue, Saint Paui, Minnesota FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION This matter was heard by Administrative Law Judge Beverly Jones Heydinger, commencing at 9:30 a.m., May 4, 1999, at the St. Paul City Hali, Room 41, 15 West Kellogg Boulevard, Saint Paul, Minnesota. The hearing was held pursuant to Notice of Hearing given by Virgin+a D. Palmer, Assistant City Attorney, on behalf of the City of St. Paul. Ms. Palmer, 400 City Hail, 15 West Keliogg Blvd., Saint Paul, Minnesota 55102, appeared on behaif of the City. S. Mark Vaught, Attorney at Law, Six West Fifth Street, Suite 700, Saint Paul, Minnesota 55102-1412, appeared on behalf of James Bailey, Inc. dlb/a Arlington Pub, the ticensee. Following the hearing, the record was left open until May 18, 1999 for submission of closing arguments, and fiive days thereafter for response. The record cfosed on May 26, 1999. NOTICE This report is a recommendation, not a final decision. The St. Paul City Councii will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations. Pursuant to Minn. Stat. § 14.61 (1998), the City Councif shall not make a final decision until this Report has been made available to the parties for at least ten days. The pa�ties may fiie excepiions io inis Report and the City Council musi consider the exceptions in making a final decision. A copy of the City Counci!'s decision must be senied on the parties and the Admin+strative Law Judge by first class mail.� Parties shouid contact the Saint Paul City Council, 310 City Hail, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. � Mintt. Stat. § 14.62, subd. 1(1998). 4R-�/,'I STATEMENT OF THE tSSUES The issues presented at this hearing were: 1. Did the Licensee violate Minn. Stat. § 340A.5U4, subd. 2(1998), and Saint Paui Legislative Code § 409.07(a) which prohibits the sale of alcohol after 1:00 a.m.? 2. Did the Licensee violate Minn. Stat § 340A.502 (1998), which prohibits the sale of alcohol to an obviously intoxicated person, on either January 29, 1999, or February 4, 1999? 3. Did the Licensee violate Saint Paul Legislative Code § 409.07(c) which prohibits the consumption or display of alcohol at any time when the sale is not permitted? FINDINGS OF FACT 1. The Licensee, James Bailey, Inc., hoids licenses to operate a bar, Arfington Pub, located at 721 Payne Avenue in Saint Pau4, Minnesota. The bar is also known as Bailey's Pub. 2. On January 28, 1999, Thomas Doepner and James Werring feft work, bought firvo cases of beer, and returned to Doepners apartment on Bush Street at around 6:00 p.m. The apartment was within two blocks of the Arlington Pub. 3. Doepner, Werring and Doepner's girlfriend drank the two cases of beer. At 12:30 a.m., on January 29, 1999, Doepner's girifriend asked the men to be quiet or leave. Doepner invited Werring to stay on the couch for the night but Werring left the apartment at around 12:45. Doepner admitted that both men were very drunk, that Werring had on light clothing, and Doepner was uncertain that Werring could walk far because he was so intoxicated. It was a very cold night. 4. Karl Tacheny was the bartender at the Arlington Pub on January 29, 1999 when James Werring entered at around 12:45 a.m. and asked for a drink. Tacheny refused to serve Werring because he was intoxicated, and Tacheny had already g+ven "last call". Tacheny let Werring stay in the bar because it was very cold. He doubted that a cab would pick up Werring because Werring was so dcunk. Tacheny knew where Werring lived and decided to give Werring a ride home after closing up the bar. 5. Werring remained in the bar while 7acheny ciosed up, but when it was time to secure the money, Tacheny asked Werring to wait for him outside. Tacheny estimated the time was after 2:00 a.m. Within a few minutes, Tacheny completed closing up the bar, but when he opened the door to look for Werring, F� q9-�4� Werring was gone. Tacheny was very surprised, and looked around the parking lot and surrounding area fior Werring before leaving. ,. 6. it ordinarily takes between 45 and 90 minutes after the bar cfoses to c�san up and restock the bar before the bartender leaves the bar. 7. At approximately 2:30 a.m., Saint Paul Police Oificer Sean Burton was patro4ling Payne Avenue near the cosner of Payne and Minnehaha, by the police sub-station and across the street from the Arlington Pub. He saw a man come out of the door of the 6ar. The officer questioned the man, James Werring, because Werring appeared intoxicated, and he was out alone on a very cold night. 8. Werring told O�cer Burton that he had been drinking in the bar at that time, and that it was "last call". Werring also told the officer thai he had drunk in Bailey's Bar several times after closing. Officer Burton did not investigate to determine if there was anyone in the bar at that time. 9. Officer Burton transported Werring to the detox center. The officer called for back-up to investigate, but none was sent. Ai the detox center, a breath test was administered, and Werring was tested at .20 on the PBT, a prefiminary test that measures alcohoi concentration. Based on his experience and training as a police o�cer, Officer Burton considered Werring "extremefy intoxicated". 10. Werring remembers buying beer and returning to Doepner's apartment. He estimates he drank about 18 beers, but he cannot recall leaving the apartment, going to the 6ar, tafking to O�cer 6urton or being taken to the detox center. He recalls awakening at the detox center and suspects he blacked out. Werring has subsequently entered chemical dependency treatment. 11. Officer Burton returned to the area of Payne and Minnehaha after 3:00 a.m. When he checked the door of the bar at about 3:45 a.m., the door was locked. 12. The bar ordinarily gave "last call" between 12:30 and 12:45 and the patrons left by 1:00 a.m., or slightly thereafter. The main door of the bar is directly across the street from the neighborhood police station. 13. On February 4, 1999, Tacheny was tending bar when he saw two men enter and sit down in a booth about eight feet from the bar. One of the two came up to the bar and ordered two shots of Christian Brothers. Tacheny asked for ident+fication from both men. The second man, Dwight Dismuke, got up from the booth to show his identification, and returned to his seat. Tacheny did not notice any signs of intoxication. 3 ag • ��? 14. Tacheny poured the two drinks and the man who ordered the drinks carried them back to his seat +n the booth with Dismuke. ln less than five minutes an argument broke out befinreen the two men. The men were loud, waving their arms, and using profane 4anguage. Tacheny came out from behind the bar, took away the two ;s poured them into the bar sink, and told the men to leave. The man who ordered the drinks immediatefy departed. Dismuke said he would leave, but when he got up from the table, he stumbled and fefl. Tacheny helped him up and into a booth. Within moments, several Saint Paul police officers arrived. There were 10 to 15 other customers in the bar at the time. 15. Among the officers who arrived at the bar were Jason Urbanski and Joe( Johnston. Both were experienced o�cers. O�cer Johnston had covered Payne Avenue for many years and was familiar with the bar. O�cer Urbanski had four years experience in North �aini Paul anti w�s in irain+ng with the Saint Paul Police. He took charge at the scene, under Officer Johnston's supervision. He arrived at the bar within minutes of receiving a cafl that a customer was causing trouble. Upon arriving, the officers saw a man, later identified as Dismuke, slouched in a booth. 16. O�cer Urbanski observed that Dismuke was not very coherent and did not seem to understand the questions put to him by the police officers. Dismuke smelled of alcohol and his eyes were bloodshot. The police checked for identification. 17. Officer Urbanski asked Tacheny if he had served Dismuke a drink, and Tacheny acknowledged that he had. He toid the o�cers that Dismuke had been in the bar a short time. Neither Officer Urbanski nor Officer Johnston recailed seeing a drink on the tabfe in front of Dismuke when they arrived. Sased on their training and experience, both officers concluded that Dismuke was clearly intoxicated. This was corroborated by Officer Burton who was among the officers cailed to the bar. 18. Officer Johnston noted that Tacheny had not called the police, that he was surprised when they arrived, and a little bewildered by what had happened. Tacheny told O�cer Johnston that he did not know who had cailed the police. 19. 7he police took Dismuke to the detox center where he scored 2.5 on the PBT. 20. 7he police did not interview any of ihe other bar patrons and conducted no further investigation of the incident. Neither the police nor a licensing inspector questioned Tacheny about Dismuke's arrival at the bar or what Tacheny observed when he served Dismuke. 0 �°t•��? 21. Kristina Schweinier, senior licensing inspector, Office of License, Inspections and Environmental Protection, based her decision to initiate action solely on the police report. No investigator spoke with the licensee's employees or owners, or with Werring, Doepner, bar patrons or ar:y other witness. 22. Any Finding of Fact more proper{y termed as a Conclusion is hereby adopted as a Concfusion. CONCLUSIONS 1. The Administrative Law Judge and the Saint Paul City Counci! have jurisdiction in this case? 2. The Licensee received timely and proper notice of the hearing and the City has complied with all relevant substantive and procedural reGuiremenis of statute and rule. 3. The City has authority to suspend or revoke a license and to impose penafties for vioVation of applicable statutes and ruies 4 4. The Licensee is responsible for conduct in the licensed estabiishment, including conduct by an employee authorized to seli alcohol. 5. The City has the burden of proving that the Licensee violated the applicable provisions of state iaw and city ordinance by a preponderance of the evidence. 6. It is a violation of both state law and city ordinance to sell alcohoi after 1:00 a.m. The Gity failed to show by a preponderance of the evidence that Karl Tacheny so{d alcohol to James Wersing after 1:00 a.m. on January 29, 1999. 7. It is a violation ofi state law to sell aicohol to an obviously intoxicated person.� The City failed to show by a preponderance of the evidence that Karl Tacheny sold alcohol to James Werring on January 29, 1999, or that Dwight Dismuke was "obviousfy intoxicated" when Karl Tacheny sold him a drink on February 4, 1999. 8. A local authority, such as the City, may impose limitations within its limits beyond those established by state law. Z Minn. Stat. § 340A.415 (1498); Saint Paul L.egisiative Code § 409.12. ' See Minn. Stat. § 14.57 —14.61, 340A.415 (1498); Saint Paul Legislative Code § 310.05. " Minn. Stat. § 340A.415 (1998); Sainc Paul Legislative Code § 31Q.06. 5 Minn. Stat. § 340A.501 (1998); Saint Paul Le�islative Code §§ 310.17 and 409.14. 6 Minn. Stat. § 340A.504, subd. 2(1998); Saint Paul Legislative Code § 409.07(a). ' Minn. Stat § 340A.502 (1998). e Mirm. Stat. § 340A.509 (1998). a9-'149 9. It is a violafion of city ordinance to consume or display alcohol at any time when the sale of alcohol is not permitted. The City failed to show by a preponderance of the evidence that Kari Tacheny permitted consumption or display of alcohol after 1:00 a.m, on January 29, 1999. Based upon the foregoing Conclusions, the Administrative Law Judge makes the foliowing: RECOMMENDATION IT IS HEREBY RECOMMENDED: that the violations cited by the City of Saint Paul against the Licensee be DISMISSED in all respects. Dated this 25th day of June, 1999. • , L_ Beverly J s Heyding Admini ive Law J ge Reported: Tape-recorded {four tapes} MEMORANDUM Although there was circumstantial evidence that led the police officers to conclude that violations governing the operation of the Arlington Pub occurred, there was credible direct testimony to the contrary. For the three violations arising on January 29, 1999, Werring's statement that he had been drinking in the bar was the onfy evidence in support of the alfeged violations. Werring was, by alf accounts, extremefy intoxicated, and has no recoilection of the incident or what he told the o�cer. fn comparison, the other witnesses provided a detaifed account of Werring's drinking that evening, and their testimony was consistent with Oificer Burton's observation of Werring leaving the bar. Aithough Officer Burton's hypothesis is pfausible, the testimony ofi the other witnesses was detailed and consistent with a differeni conclusion. Neither ihe police nor the City inspectors investigated the matter on the evening Werring was detained, or thereafter. One can not conclude from the testimony of the offcers that the bartender served an "obviously intoxicated" person on February 4, 1999. Tacheny admitted serving Dismuke, but denied that Dismuke was obviously intoxicated when he 9 Saint Paul Legislative Code § 409.07(c). �q � �� was served. The officers could only testify to what they saw when called to the bar. Although it would be reasonable to conclude that Dismuke was intoxicated when he entered the bar, that is not the issue to be addressed. The question is whether the bartender ssrved an "obviously intoxicated" person. Tacheny's testimony on this poir,t is credible, and supported by the steps he took when Dismuke and his companion got in an argument. He took away the drinks he had served and to(d the men to leave the bar. The officers and Tacheny all testified that Dismuke did not have a drink when the police arrived, that Tacheny was surpsised to see them and had not called the police, and that Tacheny openly acknowledged that he had served Dismuke a drink. Neither the police nor the licensing inspectors asked Tacheny any questions about Dismuke's condition at the time Tacheny served him. Although several other peopfe were in the bar at the time, none were interviewed. "Obvious intoxication" must be "readily and piainiy evident without affirmative effort to perceive it and so cfear that the observer would be bound to notice.° � It does not require "reasonably active observation of his appearance, breath, speech and actions."'� Tacheny openly admitted that he noticed Dismuke and his companion enter the bar and take a seat, and that he asked them to come forward with identification. But he denied observing signs of obvious intoxication. Once the men began to argue, he retrieved the drinks and ejected the men. Although this all occurred within a few minutes, the uncontroverted evidence that Dismuke's companion was gone and that there was no drink in front of Dismuke, even though Tacheny did not know the police were cailed, supports Tacheny's testimony. The testimony of the police officers about what they observed was credible. Each of them sized up the situation, based on their training and experience. Their conclusions were neither unreasonable nor inconsistent with their observations. Nonetheless, the detailed testimony of the other witnesses supports a different conclusion. Tacheny, Werring and Doepner were open and straightforward. Hlthough the Ciiy asserts that Tacheny may nave a motive to lie, nothing in his answers or demeanor suggested that he was lying, nor were his answers inconsistent with the observations by the police, or with other witnesses to the events. Tacheny gave a detailed and credible account of the events that occurred. Mr. Clarence Bailey's testimony was given littie weight. He admitted that he was not present at the bar on either January 29 or February 4, 1999. He believes the poiice unfairly target the bars on Payne Avenue, but the facts of this 10 Mos v. Mjos, 178 N.W.2d 862, 867 (Minn. 1970). " Id. 7 4 q -��7 case support the actions of the police. The observations noted in their reports are consisfent wifh the testimony of the other witnesses. Nonetheless, their observations alone were insufficient to support a conciusion that the Licensee violated the cited p� ovisions ofi law. BJFi OFFICE OF THE CITY ATTORNEY �� / Citryfon M Robinson, Jr., CiryAttorney � CITY OF SAINT PAUL Norm Colemm�, Mayor June 30, 1999 Civil Division 400 City Hall IS West KelloggBlvd S¢int Paul, Minnesota 55102 NOTICE OF COUNCIL HEARING Mazk Vaught Attorney at Law Six West Fifth Street, Suite 700 Saint Paul, Minnesota 55102 Telephone: 651266-87I0 Facsimile: 6512985619 RE: All licenses held by James Bailey, Inc. d(b/a Arlington Pub alkla Bailey's Baz for the premises located at 721 Payne Ave. in St. Paul License ID No.: 16443 Our File Number: G99-0066 Deaz Mr. Vaught: Please take notice that a heazing on the report of the Administrative Law Judge concerning the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, July 14,1999, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opporhxnity to file exceptions to the report with the City Cierk at any time during normal business hours. You may also present oral or written azgument to the council at the Hearing. No new evidence will be received or testimony taken at this heazing. The Council will base its decision on the record of the proceedings before the Administrative Law Judge and on the azguments made and exceptions filed, but may depart from the recommendations of such Judge as pernutted by law in the exercise of its judgement and discretion. Sincerely, /'' � xriQ �. � �" � � c - t J '''� l Virgini�D. Palmer Assistant City Attorney Cci:�w� ��1�?� t^>�rf� sL ', `� cc: Nancy Anderson, Assistant Council Secretary, 310 City Ha11 Robert Kessler, Director, LIEP Christine Rozek, LIEP Bruce Sylvester, Community Organizer, Payne Phalen Dist. � Pl�anning �'ou�3cf1,10 �4 Payne Ave., St. Paui, MN 55101 4k _��? 15-2111-12155-3 STATE OF MINNESOTA OFFICE OF A�MIN!-STRATIVE HEARINGS FOR THE SAINT PAUL CITY COUNCIL In the Matter of the License held by James Bailey, Inc. d/b!a Arlington Pub for the premises located at 721 Payne Avenue, Sai�t Raul, Minnesota FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION This matter was heard by Administrative Law Judge Bever{y Jones Heydinger, commencing at 9:30 a.m., May 4, 1999, at the St. Paui City Hall, Room 41, 15 West Kellogg Boulevard, Saint Paul, Minnesota. The hearing was held pursuant to Notice of Hearing given by Virginia D. Palmer, Assistant City Attorney, on behaif of the City of St. Paul. Ms. Palmer, 400 City Hall, 15 West Kellogg Bivd., Saint Paul, Minnesota 55102, appeared on behaif of the City. S. Mark Vaught, Attorney at Law, Six West Fifth Street, Suite 700, Saint Paui, Minnesota 55102-1412, appeared on behalf ofi James Bailey, Inc, d/b/a Arlington Pub, the Licensee. Following the hearing, the record was left open untif May 18, 1999 for submission of ciosing arguments, and five days thereafter for response. The record closed on May 26, 1999. NOTICE This report is a recommendation, not a finai decision. The St. Paul City Council will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations. Pursuant to Minn. Stat. § 14.61 (1998), the City Council shai! not make a final decision until this Report has been made available to the parties for at least ten days. Th� pa�tiES may �'se exceptions to this Repori and the Ciiy Councii must consider the exceptions in making a fina{ decision. A copy of the City Council's decision must be served on the parties and the Administrative Law Judge by first class mail.� Parties should contact the Saint Paul City Councii, 3�0 City Hall, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. � Minn. Stat. § 14.62, subd. 1(1998). aq •'tc� STATEMENT OF THE ISSUES The issues presented at this hearing were: 1. Did the Licensee violate Minn. Stat. § 340A.5U4, subd. 2(1998), and Saint Paul Legisiative Code § 409.�7(a) which prohibits the sale of alcohol after 1:00 a.m.? 2. Did the Licensee violate Minn. Stat § 340A.502 (1998), which prohibits the sale of aicohol to an obviousiy intoxicated person, on either January 29, 1999, or February 4, 1999? 3. Did the Licensee violate Saint Paul Legislative Code § 409.07(c) which prohibits the consumption or dispiay of alcohol at any time when the sale is not permitted? FiNDINGS OF FACT 1. The Licensee, James Bailey, Inc., holds licenses to operate a bar, Arlington Pub, located at 721 Payne Avenue in Saint Paul, Minnesota. The bar is also known as Bailey's Pub. 2. On January 28, 1999, Thomas Doepner and James Werring left work, bought two cases of beer, and returned to Doepner's apartment on Bush Street at around 6:00 p.m. The apa�tment was within two blocks of the Arlington Pub. 3. Doepner, Werring and Doepner's girifriend drank the two cases of aeer. At 12:30 a.m., on January 29, 1999, Doepner's girlfriend asked the men fo be quiet or leave. Doepner invited Werring to stay on the couch for the night but Werring left the apartment at around 12:45. Doepner admitted that both men were very drunk, that Werring had on light clothing, and Doepner was uncertain that Werring could walk far because he was so intoxicated. It was a very cold night. 4. Karl Tacheny was the bartender at the Arlington Pub on January 29, 1999 when James Werring entered at around 12:45 a.m. and asked for a drink. Tacheny refused to serve Werring because he was intoxicated, and Tacheny had already given "last cali". Tacheny let Werring stay in the bar because it was very cold. He doubted that a cab would pick up Werring because Werring was so drunk. Tacheny knew where Werring lived and decided to give Werring a ride home after closing up the bar. 5. Werring remained in ihe bar whife Tacheny closed up, but when it was time to secure the money, Tacheny asked Werring to wait for him outside. Tacheny estimated the time was after 2:00 a.m. Within a few minutes, Tacheny completed closing up the bar, but when he opened the door to look for Werring, 2 qa.�G� Werring was gone. Tacheny was very surprised, and 400ked around the parking lot and surrounding area for Werring before leaving. ,- 6. it ordinarily takes between 45 and 90 minutes after the bar closes to c�ean up and resiock the bar before the bartender leaves the bar. 7. At approximately 2:30 a.m., Saint Paul Police Officer Sean Burton was patrolling Payne Avenue near the corner of Payne and Minnehaha, by the police sub-station and across the street from the Arlington Pub. He saw a man come out of the door of the bar. The officer questioned the man, James Werring, because Werring appeared intoxicated, and he was out alone on a very cold night. 8. Werring told Officer Burton that he had been drinking in the bar at that time, and that it was "last call". Werring also told the officer thai he rad drunk in Bailey's Bar severai times after closing. O�cer Burton did not investigate to determine if there was anyone in the bar at that time. 9. Officer Burton transported Werring to the detox center. The officer called for back-up to investigate, but none was sent. At the detox center, a breath test was administered, and Werring was tested at .20 on the PBT, a preliminary test that measures aicohol concentration. Based on his experience and training as a police officer, O�cer Burton considered Werring "extremely intoxicated". 10. Werring remembers buying beer and returning to Doepner's apartment. He estimates he drank about 18 beers, but he cannot recall feaving the apartment, going to the bar, talking to Officer Burton or being taken to the detox center. He recalls awakening at the detox center and suspects he blacked out. Werring has subsequently entered chemical dependency treatment. 11. Officer Burton returned to the area of Payne and Minnehaha after 3:00 a.m. When he checked the door of the bar at about 3:45 a.m., the door was locked. 12. The bar ordinarily gave "last call" between 12:30 and 12:45 and the patrons left by 1:00 a.m., or slightly thereafter. The main door of the bar is d'+rectly acsoss the street fram the neighborhood po4ice station. 13. On February 4, 1999, Tacheny was tending bar when he saw two men enter and sit down in a booth about eight feet from the bar. One of the two came up to the bar and ordered two shots of Christian Brothers. Tacheny asked for identification from both men. The second man, Dwight Dismuke, got up from the booth to show his identification, and returned to his seat. Tacheny did not notice any signs of intoxication. 3 R1-'►G� 14. Tacheny poured the two drinks and the man who ordered the drinks carried them back to his seat in the booth with Dismuke. In less than five minutes an argument broke out between the two men. The men were loud, waving their arms, and using profane ianguage. Sacheny came out from behind the bar, took away the twu �rinks, poured them into the bar sink, and toid the men to leave. The man who ordered the drinks immediately departed. Dismuke said he would leave, but when he got up from the table, he stumbled and fiell. Tacheny he{ped him up and into a boath. Within moments, severa( Saint Paul police officers arrived. There were 10 to 15 other customers in the bar at the time. 15. Among the officers who arrived at the bar were Jason Urbanski and Joel Johnston. Both were experienced officers. Officer Johnston had covered Payne Avenue for many years and was familiar with the bar. O�cer Urbanski had four years expesience in North Saint Paul and was in training with the Saint Paul Police. He took charge at the scene, under O�cer Johnston's supervision. He arrived at the bar within minutes of receiving a call that a customer was causing trouble. Upon arriving, the officers saw a man, later identified as Dismuke, slouched in a booth. 16. O�cer Urbanski observed that Dismuke was not very coherent and did not seem to understand the questians put to him by the police officers. Dismuke smelied of alcohol and his eyes were bloodshot. The police checked for identification. 17. O�cer Urbanski asked Tacheny if he had served Dismuke a drink, and Tacheny acknowledged that he had. He told the officers that Dismuke had been in the bar a short time. Neither Officer Urbanski nor Officer Johnston reca{led seeing a drink on the table in front of Dismuke when they arrived. Based on their training and experience, both officers concluded that Dismuke was clearly intoxicated. This was corroborated by Officer Burton who was among the officers called to the bar. 18. Officer Johnston noted that Tacheny had not called the police, that he was surprised when they arrived, and a little bewildered by what had happened. Tacheny told Officer Johnston that he d+d not know who had called the police. 19. The police took Dismuke to the detox center where he scored 2.5 on the PBT. 20. The police did not interview any of the other bar patrons and conducted no further investigation of the incident. Neither the police nor a licensing inspector questioned Tacheny about Dismuke's arrival at the bar or what Tacheny observed when he served Dismuke. � �a --k.� 21. Kristina Schweinler, senior licensing inspector, Office of License, Inspections and Environmental Protection, based her decision to initiate action solely on the police report. No investigator spoke with the licensee's employees or owners, or with Werring, Doepner, bar patrons or ar.y other witness. 22. Any Finding of Fact more properly termed as a Conclusion is hereby adopfed as a Conciusion. CONCLUSIONS 1. The Administrative Law Judge and the Saint Pau( City Counci! have jurisdiction in this case. 2. The Licensee received timely and proper notice of the hearing and the City has complied with all relevant substantive and procedural reQu:rem�nis of statute and rule. 3. The City has authority to suspend or revoke a license and to impose penaities for violation of applicable statutes and rules 4 4. The Licensee is responsib{e for conduct in the licensed establishment, including conduct by an employee authorized to seil alcohol. 5. The City has the burden of proving that the Licensee violated the applicable provisions of state law and city ordinance by a preponderance of the evidence. 6. It is a violation of both state law and city ordinance to se41 alcohol after 1:00 a.m. The City failed to show by a preponderance of the evidence that Kari Tacheny sold alcohol to James Werring after 1:00 a.m. on January 29, 1999. 7. It is a violafron of state law to sell alcoho( to an obviously intoxicated person.' The City failed to show by a preponderance of the evidence that Karl Tacheny sold alcohol to James Werring on January 29, 1999, or that Dwight Dismuke was "obviously intoxicated" when Kari Tacheny sold him a drink on February 4, 1999. 8. A focal authority, such as the City, may impose fimitations within its limits beyond those established by state law. z Minn. Stat. § 340AA t5 (1998); Saint Paul Legislative Code § 449.12. ' See Minn. Stat. § 14.57 — 14.61, 340A.415 (1998); Saint Paul Legislative Code § 310.05. 4 Minn. Stat. § 340A.415 (1998); Saint Paul Legislative Code § 310.06. 5 Minn. Stat. § 340A.501 (1998); Saint Paul Legislative Code §§ 310.17 and 409.14. 6 Minn. Stat. § 340A.504, subd. 2(1998); Saint Paul Legislative Code § 409.07(a). ' Minn. Stat. § 340A.5�2 (1998). $ Minn. Stat. § 340A.509 (1998). q`t-'14� 9. It is a violation of city ordinance to consume or display alcohol at any time when the sale of alcohol is not permitted. The City failed to show by a preponderance of tfie evidence that Kar1 Tacheny permitted consumption or display of alcohol after 1:00 a.m. on January 29, 1999. Based upon the fioregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RECOMMENDED: that the violations cited by the City of Saint Paui against the Licensee be DISMISSED in ali respects. Dated this 25th day of June, 1999. '�� . L_ Beverly J s Heyding Admini ive Law J ge Reported: Tape-recorded (four tapes) MENfORANDUM Although fhere was circumstantial evidence that led the police o�cers to concfude that violations governing the operation of the Arlington Pub occurred, there was credible direct testimony to the contrary. For the three violations arising on January 29, 1999, Werring's statement that he had been drinking in the bar was the only evidence in support of the alleged violations. Werring was, by all accounts, extremely intoxicated, and has no reco4lection of the incident or what he told the officer. In comparison, the other witnesses provided a detailed account of Werring's drinking that evening, and their testimony was consistent with Officer Burton's observation of Werring leaving the bar. Although Officer Burton's hypothesis is plausible, the testimony of the other witnesses was detailed and consistent with a different conclusion. Neither the police nor the City inspectors investigated the matter on the evening Werring was detained, or thereafter. One can not conclude from the testimony of the o�cers that the bartender served an "obviousiy intoxicated" person on February 4, 1999. Tacheny admitted serving Dismuke, but denied that Dismuke was obviously intoxicated when he ' Saint Paul Legislative Code § 409.07(c). C.� °ta-�� was served. The ofiFicers could only testify to what they saw when called to the bar. Although if would be reasonable to conclude that Dismuke was intoxicated when he entered fhe bar, that is not the issue to be addressed. The question is whether the barkender served an "obviously intoxicated" person. Tacheny's testimony on this poiri is credible, and supported by the steps he took when Dismuke and his companion goi in an argument. He took away the drinks he had served and told the men to leave the bar. The offcers and Tacheny afl testified that Dismuke did not have a drink when the police arrived, that Tacheny was surprised to see them and had not calied the police, and that Tacheny openly acknowledged that he had served Dismuke a drink. Neither the police nor the licensing inspectors asked Tacheny any questions about Dismuke's condition at the time Tacheny served him. Although several other people were in the bar at the time, none were interviewed. "Obvious intoxication" must be "readily and plainly evident without affirmative effort to perceive it and so clear that the observer would be bound to notice." It does not require "reasonably active observation of his appearance, breath, speech and actions."�� Tacheny openly admitted that he noticed Dismuke and his companion enter the bar and take a seat, and that he asked them to come forward with identification. But he denied observing signs of obvious intoxication. Once the men began to argue, he retrieved the drinks and ejected the men. Although this all occurred within a few minutes, the uncontroverted evidence that Dismuke's companion was gone and that there was no drink in front of Dismuke, even though Tacheny did not know the police were called, supports Tacheny's testimony. The testimony of the police officers about what they observed was credible. Each of them sized up the situaiion, based on their training and experience. Their conclusions were neither unreasonable nor inconsistent with their observations. Nonetheless, the detailed testimony of the other witnesses suppo�ts a different conc(usion. Tacheny, Werring and Doepner were open and straightforward. Although the Cify asserts that Tacheny may nave a motive to lie, nothing in his answers or demeanor suggested that he was lying, nor were his answers inconsistent with the observations by the police, or with other witnesses to the events. Tacheny gave a detailed and credibie account of the events that occurred. Mr. Cfarence Saiiey's testimony was given iittle weight. He admitted that he was not present at the bar on either January 29 or February 4, 1999. He believes the police unfairly target the bars on Payne Avenue, but the facts of this 10 Mjos v. Mjos, 178 N.W2d 862, 867 (Minn. 1970). " Id. �] a�-�c� case support the actions of the police. The observations noted in their reports are consistent with the testimony of the other witnesses. Nonefheless, fheir observations alone wers insu�cient to support a conciusion that the Licensee violated the cifed p�ovisions of law. BJH June 25, 1999 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 Fred Owusu City Clerk 170 City Hall 15 W. Kellogg Boulevard St. Paul, Minnesota 55102 R�'CEtYE� JUN 2 8 i999 C�T,Y �LERK q �,� �� RE: In the Matter of the License held by James Bailey, Inc. d/b/a Arlington Pub for the Premises Located at 721 Payne Avenue, Saint Paul, Minnesota; OAH Docket No. 12-2111-12155-3. Dear Mr. Owusu: Enclosed and served upon you is the Findings of Fact, Conclusions and Recommendation of the Administrative Law Judge in the above-entitled matter. Also enclosed is the official record and we are now closing our file. Sincerely, � � j �n _ � �� BEVERLY NES HEYDINGER Administrative Law Judge Telephone:612/341-7606 BJH:Ic Enclosure cc: Virginia D. Palmer Mark Vaught Providing Impartial Hearings for Government and Citizens An Eq u a l Opportunity Employer Administrative Law Section 8. Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 ; �q,�� STATE OF MINNESOTA) ) ss COUNTY OF HENNEPIN) AFFIDAVIT OF SERVICE BY U.S. MAIL Louise C. Cooper, being first duly sworn, hereby deposes and says that on the 25th day of June, 1999, at the City of Minneapolis, county and state aforementioned, she served the attached FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION: OAH Docket No. 15-2111-12155-3 by depositing in the United States mail at said City of Minneapolis, a true and correct copy thereof, properly enveloped, with first class postage prepaid and addressed to the individuals named herein. Fred Owusu City Clerk 170 City Hall 15 W. Kellogg Boulevard St. Paul, MN 55102 Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Kellogg Bivd. St. Paul, MN 55102 Mark Vaught Attorney at Law Six West Fifth St., Suite 700 St. Paul, MN 55102-1412 �-��—_� C _ C�-�-��'! Louise C. Cooper Subscribed and sworn to before me this 25th day of June ��'✓� �i°�.��-�-� Notary � lic 1999 5 ��"�M��nnr.nnnnMnnnnnn n��\nMAM � 2� CINDY ETIENNE �� NO7ARY PUBLIC-MINNESOTA ANOKA COUNTY My Comm. Expires Jan. 31, 2000 • WVVN/W VWV`JVyyyyyyyWV • � 4 �� 15-2111-12155-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATNE HEARINGS FOR THE SAINT PAUL CITY COUNCIL In the Matter of the License held by James Bailey, Inc. d/b!a Arlington Pub for the premises located at 721 Payne Avenue, Saint Paul, Minnesota FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION This matter was heard by Administrative Law Judge Beverly Jones Heydinger, commencing at 9:30 a.m., May 4, 1999, at the St. Paul City Hall, Room 41, 15 West Kellogg Boulevard, Saint Paul, Minnesota. The hearing was held pursuant to Notice of Hearing given by Virginia D. Palmer, Assistant City Attorney, on behalf of the City of St. Paul. Ms. Palmer, 400 City Hall, 15 West Kelfogg Blvd., Saint Paul, Minnesota 55102, appeared on behalf of the City. S. Mark Vaught, Attorney at Law, Six West Fifth Street, Suite 700, Saint Paul, Minnesota 55102-1412, appeared on behalf of James Bailey, Inc. d/b/a Arlington Pub, the Licensee. Following the hearing, the cecord was left open until May 18, 1999 for submission of closing arguments, and five days thereafter for response. The record closed on May 26, 1999. NOTICE This report is a recommendation, not a final decision. The St. Paul City Council will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conalusions, and Recommendations. Pursuant to Minn. Stat. § 14.61 (1998), the City Council shall not make a final decision until this Report has been made available to the parties for at least ten days. The parties may file exceptions to this Report and the City Council must consider the exceptions in making a final decision. A copy of the City Council's decision must be served on the parties and the Administrative Law Judge by first class mail.' Parties shoufd contact the Saint Paul City Councif, 310 City Hall, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. 1 Minn. Stat. § 14.62, subd. 1(1998). STATEMENT OF THE ISSUES The issues presented at this hearing were: 1. Did the Licensee violate Minn. Stat. § 34�A.5�4, subd. 2(1998), and Saint Paul Legislative Code § 409.07(a) which prohibits the sale of alcohol after 1:00 a.m.? 2. Did the Licensee violate Minn. Stat § 340A.502 (1998), which prohibits the sale of alcohol to an obviously intoxicated person, on either January 29, 1999, or February 4, 1999? 3. Did the Licensee violate Saint Paul Legislative Code § 409.07(c) which prohibits the consumption or display of alcohol at any time when the sale is not permitted? FINDINGS OF FACT 1. The Licensee, James Bailey, Inc., holds licenses to operate a bar, Arlington Pub, located at 721 Payne Avenue in Saint Paul, Minnesota. The bar is also known as Bailey's Pub. 2. On January 28, 1999, Thomas Doepner and James Werring left work, bought two cases of beer, and returned to Doepner's apartment on Bush Street at around 6:00 p.m. The apartment was within two blocks of the Arlington Pub. 3. Doepner, Werring and Doepner's girifriend drank the two cases of beer. At 12:30 a.m., on January 29, 1999, Doepner's girlfriend asked the men to be quiet or leave. Doepner invited Werring to stay on the couch for the night but Werring left the apartment at around 12:45. Doepner admitted that both men were very drunk, that Werring had on light clothing, and Doepner was uncertain that Werring could walk far because he was so intoxicated. 1t was a very cold night. 4. Karl Tacheny was the bartender at the Arlington Pub on January 29, 1999 when James Werring entered at around 12:45 a.m. and asked for a drink. Tacheny refused to serve Werring because he was intoxicated, and Tacheny had already given "last call". Tacheny let Werring stay in the bar because it was very cold. He doubted that a cab would pick up Werring because Werring was so drunk. Tacheny knew where Werring lived and decided to give Werring a ride home after closing up the bar. 5. Werring remained in the bar while Tacheny closed up, but when it was time to secure the money, Tacheny asked Werring to wait for him outside. Tacheny estimated the time was after 2:00 a.m. Within a few minutes, Tacheny completed closing up the bar, but when he opened the door to look for Werring, �q"�� 2 vl L� '� (�� Werring was gone. Tacheny was very surprised, and looked around the parking lot and surrounding area for Werring before leaving. 6. It ordinarily takes befir✓een 45 and 90 minutes after the bar closes to clean up and restock the bar before the bartender leaves the bar. 7. At approximately 2:30 a.m., Saint Paul Police Officer Sean Burton was patrolling Payne Avenue near the corner of Payne and Minnehaha, by the police sub-station and across the street from the Arlington Pub. He saw a man come out of the door of the bar. The officer questioned the man, James Werring, because Werring appeared intoxicated, and he was out alone on a very cold night. 8. Werring told Officer Burton that he had been drinking in the bar at that time, and that it was "last call". Werring also told the officer that he had drunk in Bailey's Bar several times after closing. Officer Burton did not investigate to determine if there was anyone in the bar at that time. 9. O�cer Burton transported Werring to the detox center. The officer called for back-up to investigate, but none was sent. At the detox center, a breath test was administered, and Werring was tested at .20 on the PBT, a preliminary test that measures alcohol concentration. Based on his experience and training as a police officer, O�cer Burton considered Werring "extremely intoxicated". 10. Werring remembers buying beer and returning to Doepner's apartment. He estimates he drank about 18 beers, but he cannot recail leaving the apartment, going to the bar, talking to Officer Burton or being taken to the detox center. He recalls awakening at the detox center and suspects he blacked out. Werring has subsequently entered chemical dependency treatment. 11. Officer Burton returned to the area of Payne and Minnehaha after 3:00 a.m. When he checked the door of the bar at about 3:45 a.m., the door was locked. 12. The bar ordinarily gave "last call" between 12:30 and 12:45 and the patrons left by 1:00 a.m., or slightfy thereafter. The main door of the bar is directly across the street from the neighborhood police station. 13. On February 4, 1999, Tacheny was tending bar when he saw two men enter and sit down in a booth about eight feet from the bar. One of the two came up to the bar and ordered two shots of Christian Brothers. Tacheny asked for identification from both men. The second man, Dwight Dismuke, got up from the booth to show his identification, and returned to his seat. Tacheny did not notice any signs of intoxication. k? �� 14. Tacheny poured the two drinks and the man who ordered the drinks carried them back to his seat in the booth with Dismuke_ ln less than five minutes an argument broke out between the two men. The men were loud, waving their arms, and using profane language. Tacheny came out from behind the bar, took away the two drinks, poured them into the bar sink, and told the men to leave. The man who ordered the drinks immediately departed. Dismuke said he would leave, but when he got up from the table, he stumbled and fell. Tacheny helped him up and into a booth. Within moments, several Saint Paul police oSficers arrived. There were 10 to 15 other customers in the bar at the time. 15. Among the officers who arrived at the bar were Jason Urbanski and Joel Johnston. Both were experienced officers. Officer Johnston had covered Payne Avenue for many years and was familiar with the bar. Officer Urbanski had four years experience in North Saint Paul and was in training with the Saint Paul Police. He took charge at the scene, under Officer Johnston's supervision. He arrived at the bar within minutes of receiving a call that a customer was causing trouble. Upon arriving, the officers saw a man, later identified as Dismuke, slouched in a booth. 16. Officer Urbanski observed that Dismuke was not very coherent and did not seem to understand the questions put to him by the police o�cers. Dismuke smelled of alcohol and his eyes were bloodshot. The police checked for identification. 17. Officer Urbanski asked Tacheny if he had served Dismuke a drink, and Tacheny acknowledged that he had. He told the officers that Dismuke had been in the bar a short time. Neither Officer Urbanski nor Officer Johnston recalled seeing a drink on the tabfe in front of Dismuke when they arrived. Based on their training and experience, both officers concluded that Dismuke was clearly intoxicated. This was corroborated by Officer Burton who was among the officers called to the bar. 18. Officer Johnston noted that Tacheny had not called the police, that he was surprised when they arrived, and a little bewildered by what had happened. Tacheny told Officer Johnston that he did not know who had called the police. 19. The police took Dismuke to the detox center where he scored 2.5 on the PBT. 20. The police did not interview any of the other bar patrons and conducted no further investigation of the incident. Neither the police nor a licensing inspector questioned Tacheny about Dismuke's arrival at the bar or what Tacheny observed when he served Dismuke. 0 G �,�� 21. Kristina Schweinler, senior licensing inspector, O�ce of License, lnspections and Environmental Protection, based her decision to initiate action solely on the police report. No investigator spoke with the licensee's employees or owners, or with Werring, Doepner, bar patrons or any other witness. 22. Any Finding of Fact more properfy termed as a Concfusion is hereby adopted as a Conclusion. CONCLUSIONS 1. The Administrative Law Judge and the Saint Paul City Council have jurisdiction in this case? 2. The Licensee received timely and proper notice of the hearing and the City has complied with all relevant substantive and procedural requirements of statute and rule 3 3. The City has authority to suspend or revoke a license and to impose penalties for violation of applicable statutes and rules.' 4. The Licensee is responsible for conduct in the licensed establishment, including conduct by an employee authorized to sell alcohol 5 5. The City has the burden of proving that the Licensee violated the applicable provisions of state law and city ordinance by a preponderance of the evidence. 6. It is a violation of both state law and city ordinance to sell alcohol after 1:00 a.m. The City failed to show by a preponderance of the evidence that Karl Tacheny sold alcohol to James Werring after 1:00 a.m. on January 29, 1999. 7. It is a violation of state law to sell alcohol to an obviously intoxicated person.' The City failed to show by a preponderance of the evidence that Karl Tacheny sold alcohol to James Werring on January 29, 1999, or that Dwight Dismuke was "obviously intoxicated" when Karl Tacheny sold him a drink on February 4, 1999. 8. A local authority, such as the City, may impose limitations within its limits beyond those established by state law. Z Minn. Stat. § 3AOA.415 (1998); Saint Paul Legislative Code § 409.12. 3 See Minn. Stat. § 14.57 —14.61, 340A.415 (1998); Saint Paul Legislative Code § 310.05. ° Minn. Stat. § 340A.415 (1998); Saint Paul Legislative Code § 310.06. 5 Minn. Stat. § 340A.501(1998); Saint Paul Legislative Code §§ 310.17 and 409.14. 6 Minn. Stat. § 340A.504, subd. 2(1998); Saint Paul Legislative Code § 409.07(a). ' Minn. Stat. § 340A.502 (1998). a Minn. Stat. § 340A.509 (1998). 5 r��,�� 9. It is a violation of city ordinance to consume or display alcohol at any time when the sale of alcohof is not permitted 9 The City failed to show by a preponderance of the evidence that Karl Tacheny permiited consumption or display of alcohol after 1:00 a.m. on January 29, 1999. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RECOMMENDED: that the violations cited by the City of Saint Paul against the Licensee be DISMISSED in ali respects. Dated this 25th day of June, 1999. • 9 G �� fJ �_ Beverly .! s Heydin Admini ive Law J ge Reported: Tape-recorded (four tapes) MEMORANDUM Although there was circumstantial evidence that led the police officers to conclude that violations governing the operation of the Arlington Pub occurred, there was credible direct testimony to the contrary. For the three violations arising on January 29, 1999, Werring's statement that he had been drinking in the bar was the only evidence in support of the alleged violations. Werring was, by all accounts, extremely intoxicated, and has no recollection of the incident or what he told the o�cer. !n comparison, the other witnesses provided a detailed account of Werring's drinking that evening, and their testimony was cons+stent with Officer Burton's observation of Werring leaving the bar. Although Officer Burton's hypothesis is plausibfe, the testimony of the other witnesses was detailed and consistent with a different concfusion. Neither the pofice nor the City inspectors investigated the matter on the evening Werring was detained, or thereafter. One can not conclude from the testimony of the offcers that the bartender served an "obviously intoxicated" person on February 4, 1999. Tacheny admitted serving Dismuke, but denied that Dismuke was obviously intoxicated when he 9 Saint Paul Legislarive Code § 409.07(c). C q q,�ti�`� was served. The ofiFicers couid oniy testify to what they saw when called to the bar. Although it would be reasonabie to conclude that Dismuke was intoxicated when he entered the bar, that is not the issue to be addressed. The question is whether the bartender served an "obviously intoxicated" person. Tacheny's testimony on this point is credible, and supported by the steps he took when Dismuke and his companion got in an argument. He took away the drinks he had served and told the men to leave the bar. The officers and Tacheny all testified that Dismuke did not have a drink when the police arrived, that Tacheny was surprised to see them and had not called the police, and that Tacheny openly acknowledged that he had served Dismuke a drink. Neither the police nor the licensing inspectors asked Tacheny any questions about Dismuke's condition at the time Tacheny served him. Although several other people were in the bar at the time, none were interviewed. "Obvious intoxication" must be "readily and plainly evident without affirmative effort to perceive it and so clear that the observer would be bound to notice." 10 It does not require "reasonably active observation of his appearance, breath, speech and actions."�� Tacheny openly admitted that he noticed Dismuke and his companion enter the bar and take a seat, and that he asked them to come forward with identification. But he denied observing signs of obvious intoxication. Once the men began to argue, he retrieved the drinks and ejected the men. Although this all occurred within a few minutes, the uncontroverted evidence that Dismuke's companion was gone and that there was no drink in firont of Dismuke, even though Tacheny did not know the police were called, supports Tacheny's testimony. The testimony of the police officers about what they observed was credible. Each of them sized up the situation, based on their training and experience. Their conclusions were neither unreasonable nor inconsistent with their observations. Nonetheless, the detailed testimony of the other witnesses supports a difEerent conclusion. Tacheny, Werring and Doepner were open and straightforward. Although the City asserts that Tacheny may have a motive to lie, nothing in his answers or demeanor suggested that he was lying, nor were his answers inconsistent with the observations by the police, or with other witnesses to the events. Tacheny gave a detailed and credible account of the events that occurred. Mr. Clarence Bailey's testimony was given little weight. He admitted that he was not present at the bar on either January 29 or February 4, 1999. He believes the police unfairly target the bars on Payne Avenue, but the facts of this 10 Mos v. Mjos, 178 N.W.2d 862, 867 (Minn. 1970). �� Id. 7 �a,�� case support the actions of the police. The observations noted in their reports are consistent with the testimony ofi the other witnesses. Nonetheless, their observations alone were insufficient to support a conciusion that the Licensee violated the cited provisions of law. BJH �c�,�c�� OFFICE OF ADMINISTRATIVE HEARINGS � _ � '�_ � FOR THE CO[INCIL OF � ^ � ° - -� THE CTTY OF SAINT PAUL "'. 2 ��r ; 2: 5 g , � ;'� �= ' . . . .:;5 � �,_ ; , In the Matter of the Licenses held by OAH Docket No. 1-2111-12155 � James Bailey, Inc., d/b/a Arlington Pub a/k/a Bailey's Arlington Pub or Bailey's LICENSEE'S FINAL ARGUMENT Pub, For the Premises Located at 721 Payne Avenue, Saint Paul, Minnesota. T'he i,icensee in the above-entitled matter offers the following final argument as a consequence of the hearing held on Tuesday, May 4, 1999, pursuant to a Notice of Hearing dated March 18, 1999. As it did at the hearing, Licensee concedes that matters preliminary to the hearing were conducted in accordance with the law and does not intend to review or rebut those procedures here. Nor is a lengthy recitation of the facts necessary. Therefore, whatever facts are necessary to an understanding of the arguments of the Licensee will be reviewed as a part of the argument presented below. The City alle�ed that two incidents, ene occurring on Jar_uary 29, J 999 and a second occurring on February 4, 1999, serve as the basis for the four alieged violations. Each incident is analyzed in turn below. INCIDENT OF JANUARY 29,1999 The City alleges, based on a police report admitted to evidence and the testimony of police officer Sean Burton, that the Licensee committed the following three violations on January 29: V� �� 1. Sale of Alcohol after 1:00 a.m. in violation of Minnesota Statutes (MSA) Section 340A.504, Subd. 2 and Saint Paul I,egislative Code (SPLC) Chapter 409.07(a). 2. Sale to an Obviouslv Intoxicated Person in violation of MSA Section 340A.502. Consum�tion or Displav of Alcohol at Anv Time When is Not Permitted in violation of SPLC 409.07(c). It attempting to prove its case, the City offers no evidence at a11 based on direct observation of any of the conduct complained o£ The City's entire case is based upon two facts. First, a conversation took place between officer Burton and 3ames Floyd Werring in front of the licensed premises about which conversation officer Burton testified and his report reflects that Mr. Werring responded to a question from the officer by stating that he, Werring, was in the establishment for "last call". Second, the conversation took place, according to the officer's testimony and report at 2:37 a.m. Even if, for purposes of this argument, the Licensee conceded, without rebuttal, both facts presented by the City, the City has failed to dischazge its burden of proof with respect to all three alleged violations. With respect to Counts 1 and 2, there is no evidence of sale of alcohol to Mr. Wemng at all, let alone sale after 1:00 a.m. Nor, with respect to Count 3, is there any evidence in record that there was consumption or display of alcohol after 1:00 a.m., even if there was consumption by Mr. Werring in the establishment. Even imputing that Mr. We�ring's statement to office Burton about last call is evidence that he drank that date in �� /�� the establishment, the City has offered no evidence of sale to Mr. Werring, or sale after 1:00 a.m., or consumption or display after I:00 a.m. Officer Burton conducted no investigation beyond taking Mr. Werring to Detox, an investigation that might have yielded further evidence. The officer testified because of other calls necessitating police attention, neither he nor any other officer was able to do follow up investigation. While assignment of police o�cers is sole]y within the discretion of the City and while, under the circumstances, the failure of officer Burton or other officers to conduct further investigation may be fully understandable, that inability to investigate further does not constitute evidence that the violation occurred. In other words, speculation that other evidence might have been developed had the police been able to conduct further investigation does not constitute proof that such evidence existed. In the absence of that proof, the City has failed to dischasge its burden, regardless of the merits of the reasons given for failing to conduct further investigation. Further, the evidence offered by the Licensee in the form of the testimony of Mr. Werring, Thomas Doepner and Karl Tacheny, the bartender on duty on the night in question, offers both direct and credible evidence that none of the violations occurred. Mr. Doepner's testimony, while indicating that Mr. Werring was exceptionaily intoxicated on the evening in question, cleazly establishes that Mr. Werring spent most of the evening drinking with him, not in the licensed premises, and that he would have arrived at the licensed premises shortly before 1:00 a.m. Mr. Werring's own testimony about his complete lack of inemory of the events of the evening, including an inability to even remember being in the establishment at all or anywhere else after 9:00 p.m., particularly when coupled with the fact that his blood ��,1+�'l alcohol concentration, when measured at the Detox Center, was .20, casts substantial doubt on the credibility and probative value of Mr. Werring's statements to Officer Burton. And, the testimony of the bartender, Kazl Tacheny, who is the only person who directly wimessed and remembers the events of the evening, was credible, consistent with the other testimony and ofFers a view of the events of the evening and the facts pornayed in such a way as to rebut any slight presumption of any violation by the Licensee. Mr. Tacheny testified that Mr. Wening entered the licensed premises shortly before closing by way of a door that would indicate he came from the direction of Mr. Doepner's residence. He further testified that though he knew Mr. Werring, he recognized Mr. Werring's condition and did not serve him alcohol---nar for that matter did Mr. Werring request any alcoholic beverage according to Mr. Tacheny. Mr. Tacheny went on to indicate that he intended to give Mr. Werring a ride home because of his condition, the hour and the weather. He, therefore, left Mr. Werring sleeping at the baz while he conducted with post-closing duties. Accardingly to his testimony, he let Mr. Werring out the front door, immediately across the street from the police substation where he would be fully visible to anyone who might be looking, just before putting away the keys and the monies from the evening sales and just before intending to leave himsel£ Mr. Tacheny's explanation that he took Mr. Werring to the door and let him out as a security measure just before hiding the monies and keys as a security measure is both credible and appropriate. 0 �� Every fact in Mr. Tacheny's testimony of the evening's events is consistent with every other piece of testnnony in the record except Mr. Werring's apparent statement to Officer Burton that he had a drink in the bar at last call. The relative credibility of the testimony of Mr. Tacheny when matched against the hearsay testimony of officer Burton about the testimony of Mr. Wezring and Mr. Wemng's own testimony about his lack of recollection, clearly tilts the scales heavily in favor of assigning a substantially greater probative value to Mr. Tacheny's testimony. The City is expected to argue that Mr. Tacheny, as an employee of the baz, has an interest in the outcome. While uue, this fact does not, in itself, constitute rebuttal of Mr. Tacheny's testimony nor proof that his testamony was not truthful and accurate. To the contrary, if Mr. Tacheny had actually sold alcohol to Mr. Werring and allowed its consumption after 1:00 a.m., one would hardly expect that he would have been so naive as to have ejected an obviously intoxicated person onto a public sidewalk immediately across the street from a police station at 2:37 a.m. Every credible aspect of the testimony argues strongly that the events of that evening transpired precisely in the way Mr. Tacheny reported them. And, therefore, the conclusion that the City has failed to carry its burden with respect to all three of the counts from the incident of January 29, 1999 is urged upon the finder of fact. INCIDENT OF FEBRUARY 4.1999 The City alleges, based on a police report submitted into evidence and the testimony of police officers Urbanski and Johnston, that the Licensee committed the following violation on February 4, 1999: 1. Sale to an Obviouslv Intoxicated Person in violation of MSA Section 340A.502. �q,�� The facts do not appear to be substantially in question in this incident. The only direct evidence based on personal observation of the facts, which may have constituted a violation, is presented in the testunony of the bartender, Karl Tacheny. The evidence offered by the police officer, saue for the alleged statements by Mr. Tacheny as recorded in Officer Urbanski's police report, all are based on heazsay and require substantial inferences and inductive leaps. Mr. Tacheny indicated he served the party, Mr. Dismuke, who the City claims was intoxicated, but under circumstances a result of which he did not make an immediate assessment that the man was intoxicated. His companion ordered arid paid for the drinks for both men. Mr. Tacheny followed procedure and asked for identification from both men, which was shown to him across the bar. He had no substantial conversation with Mr. Dismuke at that time and he testified there was nothing about Mr. Dismuke's activity at the time of the identification check, which led him to conclude that the man was intoxicated. A licensee or agent of the same, such as Mr. Tacheny, does not have an affirmative duty to refrain from selling liquor to a person who bears no signs of intoxication by readily detectable by ordinary observation. Knudsen vs. Peickert, 221 N.�V.2d 78�(Minn.1974); See also Mjos vs. Villaee of Howard Lake, 178 N. W,2d 862 (Minn.1970). According to Mr. Tacheny unrebutted testimony, that is exactly the situation here. And, Mr. Tacheny testifies that shortly after Mr. Dismuke's partner purchased the drinks, he observed a commotion and an ensuing loud argument between the two men. He immediately left his post behind the bar, went to the table where the two were sitting, retrieved the drinks---which he emptied in the bar sink---and ejected both men from the ��.'�� bar. It was at that point that Mr. Dismuke fell and hit his head. Mr. Tacheny helped him into a booth by the door, intending to cali him a cab, when police entered the establishment, presumably in response to a call from a patron on a cell phone. As in the prior incident, there is nothiug inconsistent in Mr. Tacheny's testimony and the police reports or testimony of the o�cers, save for the fact that the police report omits the actions of Mr. Tacheny in retrieving the drinks and ejecting the two men after becoming aware of the azgument. The argument occurred only a short time after the men entered the bar. Further, the fact that the second man wasn't present in the bar when the police arrived, gives credibility to Mr. Tacheny's testimony that he ejected the two. Further, the testimony of the officers that they observed no glasses or bottles in which liquor might be served in the booth in which they found Mr. Dismuke gives credibility to Mr. Tacheny's testimony about how Mr. Dismuke came to be in the booth after falling and the fact that Mr. Tacheny had retrieved the drinks from the two men. Mr. Tacheny acted firmly and immediately upon realizing that there was a problem. He acted in an appropriate manner. There is no evidence that he realized Mr. Dismuke was intoxicated at the time the drinks were sold to his companion. Far from constituting a violation of the law, the actions of Mr. Tacheny are exactly those which should be expected of one in his position upon discovery of any irregularity. There is no evidence in the record that Mr. Tacheny was cognizant that Mr. Dismuke was intoxicated at the time he provided the drinks to Mr. Dismuke's companion. Therefore, particularly in light of Mr. Tacheny's actions upon realizing there was a problem, the fact finder is urged to conclude that there was no violation and that �� the actions of Mr. Tacheny were consistent with the requirements of the cited statutory provision. The testimony of a prior violation at the establishment is not particuiarly relevant for three reasons. One, it did not involve the type of violations alleged in these two matters. Two, Mr. Tacheny was not the party who comm9tted the offense. Three, the prior violation must be judged against a background of nearly twenty of ownership and operation by the current Licensee with no violations whatsoever. Respectfully submitted, Dated: May 18, 1999 �/�-- - S. Mark Vaught Attorney for Licensee Suite 700, Six West Fifth Street Saint Paul, Minnesota 55102-1412 (651)297-6400 (651) 224-8328 (fax) Attorney Reg. No. 131519 .�. 8£6Z �}osauuiW `si�odeauui�j y}nog anuany uo�6u�yseM OOl OOL6 a�mS `aienbg uo�BwyseM 006 s6waea�{ ani�ea�s�uiwpy;o ao�}}p aBpn� nne ani��a�siwwpy �a6uip�aH sauo� �(��ana8 a�qeaouoH ayl a31S3f1CJ3H 3�I�k13S SS31iO4V OOb9�L6Z R 59) ZIbI'ZOI55 E�osauviyl `Ined yuies laaixs i[xji3 xsa� ztS �OOL altns t7277716' A2Kt0716' 1.H�JR�''A � �S OFFICE OF Tf� CITY ATTORNEY Clayton M Robimron, Jr., City Attomey CITY OF SA.INT PAUL Nonrs Coleman, Mayor May 18,1999 The Honorable Beverly Jones Heydinger Administrative Law Judge OfFice of Administrative Hearings 100 Washington Squaze, Suite 1700 100 Washington Avenue South Minneapolis, MN 55401-2138 " _ . , il - - - 'CiviZDivision y ,,� � � ,� OL4('ilyHal! Telephone:651266-87I0 - ., , � �r. t�S iYestKelloggBJvd Facsimile: 6�I 298-3619 Sairst Paul, Minnesota JSIO2 , 1 'i'° �- ..�. _i.I�..iJ RE: In the Matter of the License held by James Bailey, Inc. d/b/a Arlington Pub for the premises located at 721 Payne Avenue, Saint Paul Minnesota OAH Docket #: 1-2111-12155-3 Dear Judge Heydinger: Enclosed please find a copy of the City's Fina1 Argument in the above-entitled matter. A copy has been served upon counsel for the licensee by U.S. mail. I have also enclosed the most recent version of Saint Paul Legislative Code §409.26, which contains the penalty matrix for liquor license violations. Sincerely, � ,� �� Virginia D. Palmer Assistant City Attorney 2� cc: S. Mazk Vaught OFFICE OF THE CITY ATTORNEY ClaytonM Robrnsan, Jr., CiryAltorney �j/) /�' n1 Vl") W CITY OF SAINT PAUL t leman, Mayor ��+r Civil Division 400 City Half 15 i➢est Kellogg Blvd Saint Paul, Minnesola 55102 Telephone: 651266-8710 Facsimile: 651298-5619 May 18, 1999 S. Mark Vaught Attorney at Law Six West Fifth Street, Suite 700 Saint Paul, MN 55102 RE: In the Matter of the License held by James Bailey, Inc. d/b/a Arlington Pub for the premises located at 721 Payne Avenue, Saint Paui Minnesota OAH Docket #: 1-2111-12155-3 Deaz Mr. Vaught: Enclosed and served upon you by U.S. mail, please find a copy of the City's Final Argument in the above-entitled matter. A copy has been sent to you by facsimile as well. Sincerely, d �-��L � �,� Virginia D. Palmer Assistant City Attomey cc: Beverly Jones Heydinger, Administrative Law Judge a� OFFICE OF ADMINISTRATIVE HEARINGS FOR T`HE COUNCIL OF THE CITY OF SA1NT PAUL In the Matter of the Licenses held by James Bailey, Inc., d/b/a CITY' S FINAL ARGiJMENT Arlington Pub for the premises at 721 Payne Avenue, Saint Paul The City, through the Office of License, Inspections and Environmental Protection, seeks adverse action against the licenses held by Arlington Pub for after hours consumption and sale of alcohol to an obviously intoxicated person on January 29, 1999 and sale of alcohol to an obviously intoxicated person on February 4, 1999. The City alleges that on January 29, 1999 at approximately 2:37 a.m. a Saint Paul Police Officer observed an individual walk out of Arlington Pub at 721 Payne Avenue. The person was extremely into�cated and stated to the officer that he had been drinking at the bar, and that it was "last call". He further stated that he had been at the bar drinking after hours on several prior occasions. He was taken to detox, where his blood alcohol registered .20. Sale or consumption of alcohol after hours is a violation of Saint Paul Legislative Code §409.07(a) and (c) and Minn. Stat. § 340A.504. On February 4, 1999, officers were sent to Arlington Pub on a report of a man causing trouble. On arrival they found a man who was extremely intoxicated, passed out at one of the booths. He was transported to detox, where he registered a.25 alcohol concentration. The bartender admitted serving the man, which would be a violation of Minn. Stat. §340A.502. Burden of Proof The CiTy has the burden of proof in this adverse action and must prove its case by a �r�.��1 preponderance of the evidence. In re Kaldahl, 418 N. W.2d 532, 535 (Minn. App. 1988). See, also, Mivu. Rules 1400.7300, subp.5. Under this standard, the City's evidence must lead the �ier of fact to believe that it is more likely than not that the facts are true. If there is the slightest tipping of the scales in favor of the City by credible evidence, then it has proved its case. Tesrimony at the Hearing The City presented the testimony of four witnesses, Kristina Schweinler, a senior licensing inspector from the Office of License, Inspections and Environmental Protection ("LIEP"), and OfFicers Burton, Johnston and L3rbanski, of the Saint Paui Police Department. Ms. Schweinler testified that she reviewed the police reports written by the officers and that she referred the matter to the City Attorney's Office to initiate adverse action because the police reports atleged violations of statutes and ordinances relating to after houts sale or consumption of alcohol, as well as sale of or fiunishing alcohol to obviously intoxicated persons. She fitrther testified that her recommendation for a penalty was to follow the matrix contained in Saint Paul Legislative Code §409.26 for a second offense, because this particulaz establishment had, within the past twelve months, had adverse action for a sale of alcohol to an underage person, also a matrix violation. Officer Burton testified that he is a police officer with the Saint Paul Police Depa_rnnent and that he has patrolled on Payne Avenue for three years. He testified that on January 29, 1999 at approximately 237 a.m., he was in the area backing up officers on another call when he observed an obviously intoxicated man walk out of Arlington Pub. Officer Burton testified that he walked up to the man and asked him if he had been drinking in the baz, and that the man, James Werring, stated, "Yes, it was last call." He also said to the officer that he had been in the bar, drinking after closing, on several prior occasions. The officer then transported Werring to �,�� detox, where his blood alcohol concentration was deternuned to be a.20. Officer Burton also testified that he was in Arlington Pub on Febmary 4, 1999, less than a week later, when police were called because of a man causing trouble. He was present and observed Dwight Dismuke, who appeazed to be passed out in a booth in the baz, and heazd the bartender state that he had served Dismuke at the baz. Officer Urbanski testified that he was on duty on Febniaiy 4, 1999 and was working with Officer Johnston, who was acting as his Field Training Officer. Urbanski had joined the Saint Paul Police Department in September of 1998 although he had priar police experience with the City of North Saint Paul. Officer Urbanksi testified that they were called to Arlington Pub at appro�mately 11:23 p.m. on a person causing trouble. When they arrived they found a man passed out in a booth in the bar. He tried to wake the man for about a minute. Officer Urbanski testified that the man was intoxicated, and that when they took him to detox he had an alcohol concentration of .25. Officer Johnston testified that he was working with Officer Urbanski and that the person in the bar was obviously intoxicated, in that he had problems talking, smelled of alcohol, and could barely stand. He testified that the bartender, Karl Tacheny, said he had served Dismuke one drink and then Dismuke fell off of his bar stool. The licensee presented the testimony of the bar owner, who was not present at the time of the incident, and ttu�ee other witnesses. The owner testified that he has a policy that employees are not to serve anyone who appeazs to be intoxicated nor are they to serve after hours. However, he acknowledged that there aze no formal tra.ining procedures in place. He Yrired Karl Tacheny, a long-time friend of his son, about six months ago. James Werring, the individual involved in the January 29, 1999 incident, testified that he was so intoxicated on the night in quesrion that he does not recall anything. He stated that he had q q.�c�� , no recollection of being in the baz on the night in question, although he did not deny having the conversation that the officer reported. He also testified that he also has no memory of ever being refused service at the baz on any occasion. Thomas Doeppner testified that he was drinking with Werring on the night of January 29, 1999 and that Werring left lus house between 1230 and 12:45. Doeppner lived only a couple of blocks from the baz. The bartender, Kazl Tacheny, testified that he was present at the bar during both incidents. He testified that on January 29, 1999, James Werring came into the baz and asked for a drink, but that he did not serve him because he was obviously intoxicated. However, Tacheny stated that he decided to let Werring stay at the bar because it was pointless to call a cab, because cabs wouldn't come to pick up dnu�k customers, and Tacheny was going to give him a ride home because of the cold. Tacheny testified that he let Werring stay while he closed up but made him go outside while he did the last of the closing for security reasons. When he went outside Werring was gone. Tacheny testified that on February 4, 1999, he was also the bartender. He stated that he did not ca11 the police but was startled when at least six officers burst into the bar and wanted to know what was wrong. He testified that Dismuke entered the bar with another man, that he sold the companion two shots of Christian Brothers, but insisted on ID from both of them. Tacheny testified that Dismuke wasn't stumbling, wasn't showing any signs of being intoxicated and that he had no idea that he was intoxicated. Accarding to his testimony, this was approximately five minutes before the police arrived. Shortly before the police came in, Tacheny testified that he took the drinks away from the two men because the companion began yelling and waving his arxns azound. He testified that Dismuke tripped and fell, hitting his head, before the police arrived. ��.�,��. Argument The City initiated this adverse action based upon two separate police reports of alleged violations of the laws and ordinances relating to sale and service of alcohol, including Muui. Stat. §§ 340A.502 and 340A.504, and Saint Paul Legislative Code §§409.07(a) and (c). The credibility of the witnesses in this matter is instrumental in evaluating the testunony. In evaluating credibility, a fact-finder can look to, among other things, the witnesses': 1) interest or lack of interest in the outcome of the case; 2) their relationship to the parties; 3) their franlaiess and sincerity or lack thereof; and 4) the reasonableness or unreasonableness of their testimony in light of ali the other evidence in the case. Looking first at the testimony by the witnesses for the licensee, it is important to note that Karl Tacheny works for the licensee, and would be subject to criminal prosecution for the incidents about which he testified because service of alcohol after 1:00 a.m. and to an obviously intoxicated person aze both criminal violations. He has a work relationship with the licensee, as weli as being a lifelong friend of the licensee's son. Mr. Werring claims not to know what happened on January 29, 1999, although at the tnne he informed the officer that he had been drinking in the bar after hours, and that he had done so several times in the past. This last statement belies the attempts by the licensee's attomey to azgue that Werring was confused about the nature of the question Officer Burton was asking. While he may have been confused about what rime it was and whether he had just finished drinking or had been drinking before 1:00 a.m., a statement that he drank in the baz on other occasions after closing seems pretty straightforwazd, and lends credence to the argument that he understood that he was being asked about drinking after hours on this occasion. Mr. Doeppner's �� /�� testimony really added nothing to either side - without expert testimony as to alcohol absorption rates and burn-off, it isn't possible to know Werring's likely alcohol concentration after 18 beers over a six hour period or how that relates to testing at a.20 at least two hours after leaving Deoppner's house. Mr. Bailey was not present at the time of either of the incidents, but cleazly has an interest in the outcome. He admits having no formal traiuing process for his employees and cleazly blames the City for his prior violation of selling alcohol to an underage person. On the other hand, the police officers have no known interest in this bar, nor aze they familiar with the license holder. Officer Johnston is an officer with five years experience who is trusted by the Saint Paul Police Deparhnent as a Field Training Officer for new officers. Officer Burton has three years experience with the Saint Paul Police Department and priar experience in California. Officer Urbanski is a fairly new officer to Saint Paul, but has experience in North Saint Paul. Other than a general statement from Mr. Bailey that he believes that the Police Department and the Licensing Office are out to get him, there is nothing in the record to support that the officers or the licensing personnel haue any interest in this bar. Looking next at the reasonableness of the testimony given by Mr. Tacheny regarding the two incidents, it is interesting to note that he stated that he did not call a cab for Mr. Wemng when he entered and was intoxicated because he did not think that a cab would come. He later tesrified that he often calls a cab for an intoxicated person and that they do pick them up from the baz. Furthermore, Mr. Bailey testified that it would not be unusual to have a drunlc person waiting in the bar for a cab to come because they call cabs for them. Mr. Tacheny also chose not to call the police to take Mr. Werring to detox. According to his story, he elected to allow Mr. Werring to wait for him to close up ( a two hour period) so that he could drive him home. Yet when he was ready to do his final closing up, he did not send Werring to wait in his car, nor did aq'�� he close up and leave with him, but sent him outside. Is it reasonable to believe that Mr. Tacheny really had Werring wait for almost two hours rather than simply calling him a cab when he first came in or calling the police because he was so intoxicated? Less than a week later, according to Mr. Tacheny, he served Mr. Dismuke a shot of Chrisrian Brothers Brandy without realizing that Dismuke was into�cated. Tacheny testified that Dismuke and his companion were not in the bar long before the police came in, and the officers testified that Dismuke was obviously intoxicated, slurriug his speech, unable to stand up, smelling of alcohol. Within another five minutes or so they took him to detox, where he was tested and had an alcohol concentration of .25, significantly higher than Werring's had been the week before. Nonetheless, Tacheny testified that he did not realize that Mr. Dismuke was intoxicated. Each of the officers testified that there were signs of obvious intoxication being e�ibited by Dismuke. Tacheny would have you believe that only five to ten minutes eazlier, these same signs (lack of balance, slurred speech, odor of alcohol) were all absent. Is it reasonable to believe that Dismuke only began to show the signs of obvious intoxication after the police arrived or is it more likely that Tacheny ignored the fact that he was intoxicated and served Dismuke? Officer Burton clearly believed that James Werring, although intoxicated, was able to understand and reply to his questions on January 29, 1999, and he testified that he believed that Werring understood that he was asking whether he had just finished drinking at Arlington Pub when he walked outside. Werring's statement that he had been there before, drinking after hours, confirms that Werring did understand the nature of the question Officer Burton was asking. He cleazly related the questions being asked with drinking after hours because of his statement that he had been there drinking after hours before. It is reasonable to believe that Werring had been q�'�� drinking at Arlington Pub after hours on January 29, 1999 and that he had been served despite his level of intoxicarion. Mr. Tacheny essentially admitted that he served alcohoi to Dismuke on February 4, 1999 when he admitted that he sold the two shots of Christian Brothers Brandy to Dismuke's companion. Mivu. Stat. §340A.502 states: 340A.502. Sales to obviously intogicated persons No person may sell, give, furnish, or in any way procure for another alcoholic beverages for the use of an obviously intoxicated person. Mr. Tacheny does not escape responsibility for selling the aicohol simply because it was purchased by the companion. In fact, his testimony that he requested ID from both parties aclrnowledges that he realized he was fiunishing the alcohol to Dismuke, as well as to the companion. The question, then, is whether his testimony that he did not believe Dismuke to be obviously intoxicated is reasonable. Three police officers tesrified that when they arrived, Dismuke was obviously intoxicated - he had troubie speaking, smelled of alcohol and had trouble standing. This was only five minutes after Tacheny served the alcohol to the two men. Within another five to ten minutes, Dismuke was taken to detox, where kus alcohol concentrafion was determined to be .25. It is so unlikely as to be incredible that Dismuke e�ibited none of the signs so appazent to the officers when Tacheny served the brandy to the two men. Conclusion The credible evidence presented by the witnesses far the City supports a finding that on January 29, 1999 at approximately 237 a.m., an hour and a half past closing time, a Saint Paul Police officer found James Werring just leaving Arlington Pub, where he stated that he had been drinking, and that on this occasion and several others that he was able to drink after �� hours in violation of Saint Paul Legislative Code §§ 409.07(a) and (c) and Minn. Stat. §340A.504, subd. 2.. Furthermore, given the individual's intoxicated state, service to him was a violation of Mum. Stat. §340A.502, prohibiting sale of alcohol to an obviously intoxicated person. Less than a week later, three police officers entered the baz and found an obviously intoxicated person sitting slumped in one of the booths, and the bartender admitted that before their arrival he had sold the person a shot of Chrisrian Brothers Brandy. The officers a11 testified that the individual was obviousiy intoxicated, which was confirmed by his alcohol concentration of .25, which was determined shortly after officers took him to detox. The presumptive penalty far a violation of after hours sale of alcohol is established by Saint Paul Legislative Code §409.26 to be a six-day license suspension when the violation is a second appearance in front of Council within a twelve month period. The penalty for the after hours consuxnption or display of alcohol is a four-day license suspension for a second violation, and the presumptive penalty for a violation of sale to an obviously intoxicated person as a second violation is established by Saint Paul Legislative Code §409.26 to be a fine of $1,000. (The fine amount is based upon the seating capacity of an establishment and the seating establishment of Arlington Pub is 0-149. The fact that this is a second violation means that the fine amount is doubled.) Licensee has not contested that this woultl be a second violation within a twelve month period, as set forth in Saint Paul Legislative Code §409.26(e)(1). However, the current situation alleges multiple violations, and Saint Paul Legislative Code §409.26(c) sets forth the procedure by which the penalties are combined and the Council may depart upward. Based upon the foregoing, the City respectfixlly requests that a finding be made that a violation ofMinn. Stat. §§340A.502 and 340A.504 and Saint Paul Legislative Code §§409.07(a) and(c) occurred on January 29, 1999 and that a violafion of Minn. Stat. §340A.502 occurred on q�'�� February 4, 1999 and that a multiple day closure or a combination of closure and fine be the appropriate penalty. Dated: May 18, 1999 � /:. . „�„�,� �� L, �� Virginia D1 Palmer (#128995) Assistant City Attorney 400 City Hall 15 W. Kellogg Boulevard Saint Paul, MN 55102 (651) 266-8710 /^t�/�T� f § 40925 LEGISLATIVE CODE ence for at least three (3) yeats, or a political committee registered under Minnesota Statutes, Section 10A.14, may obtain an on-sale license to sell wine and strong beer not e%ceeding fourteen (14) percent alcohol by volume for consumption on the licensed premises only. The fee for such li- cense shall be established by ordinance as pro- vided in section 310.09(b) ofthe Legislative Code, and such license may authorize the on-sale of wine for not more than four (4) consecutive days. The city shall not authorize more than three (3) four-day, four (4) three-day, six (6) two-day or twelve (12) one-day temporary licenses, in any combination not to egceed twelve (12) days per yeaz for the sale of wine to any one (1) location within the city for a twelve-month period. The city may not issue mor2 than one (1) such license to any one (1) organization or politieal committee, or any one (1) location, within a thirty-day period unless the licenses are issued in connection with an event officially designated a community festi- val by the municipality. (b) Liquor Zicenses. Notwithstanding any other provision of this chapter, a club or charitable, religious or other nonprofit organizatiun in exist- ence for at least three (3) years may obtain an on-sale license to sell intosicating liquor for con- sumption on the licensed premises only and in connection with a social event within the city sponsored by the licensee. The license may pra vide that the licensee may contract for into�cat- ing liquor catering ser�ices with the holder of a full yeaz on-sale intoxicating liquor licensa issued by the city. 'I'he fee for such license shall be forty-one dollars ($41.00) per day, and such li- cense shail not authorize the on-sale of intoaucat- ing liquor for more than four (4) consecutive days. The city shall not authorize more than three (3) four-day, four (4) three-day, siY (6) two-day, or twelve (12) one-day temporary licenses, in any combination not to exceed twelve (12) days per year for the sale of into�cicating liquor to any one (1) location within the city for a twelve-month period. The city may not issue more than one (1) such license to any one (1) organization or politi- cal committee, or any one (1) location, within a thirty-day period unless the licenses are issued in connection with an event officially designated a community festival by the municipality. (c) Apptic¢tion. Application for such tempo- rary licenses shall be made on forms provided by the inspector and shall contain such information as specified by the inspector, ;ncb�ding the follow- mg_ (1) The name, address and purpose of the organization, together with the names and addresses of its officers, and evidence of nonprofit status or of its status as a club under sect�on 409.02 above. (2) The purpose for which the temporary li- cense is sought, together with the place, dates and hours during which wine or intoxicating liquor will be sold. (3) Consent of the owner or manager of the premises or person or group with lawful responsibility for the premises. (4) Evidence that the manager or director has received alcohol awareness training provided by a bona fide instructor oz the city. (d) Applic¢tion of other prouisions of this ch¢p- ter. No other provisions of this chapter shall apply to licenses granted under this section, except sections 409.06, 409.07, 409.08 (except clauses (11) and (12)), and sections 409.09 through 409.14. (e) Cl¢ss ZI Zicense. Notwithstanding any other provision of law to the contrary, the temgorary wine and liquor licenses provided in this section shall be administered as a Class II license and subject to the provisions of these chapters govem- ing Class II licenses. The inspector shall make all referrals as provided by section 310.Q3, but the director may require the inspector to issue such license before receiving any recommendations on the application thereof if necessary to issue such license on a timely basis. (Ord. No. 17459, § 1, 5-28-87; Ord. ti�o. 17569, § 4, 6-7-88; Ord. No. 17853, § 1, 7-18-91; C.F. 1Vo. 94-1561, § 2, 11-16-94; C.E No. 97-566, § 1, 6-4-97; C.F. No. 98-550, § 1, 7-22-98) Sec. 40926. Intoxicating liquor, noninto�- cating malt liquor, presumptive penalties. (a) Purpose. The purpose of this section is to establish a standard by which the city council determines the length of license suspensions and Supp. \o. 40 2196 . the propriety of revocations, and shall apply to all on-sale and off-sale licensed premises for both intofficating liquor under this chapter and nonin- to�cating liquor under Chapter 410. These pen- alties aze presumed to be appropriate for every case; however the council may deviate therefrom in an individual case where the council finds and determines that there exist substantial and com- pelling reasons making it more appropriate to do �pe of Volation (1) Commission of a felony related to the licensed activity. (2) Sale of alcohol beverages while license is under suspension. (3) Sale of alcoholic beverages to underage person. (4) Sale of alcoholic beverage to intoxicated person. (5) After hours sale of alcoholic beverages. (6) After hours display or consumption of alcoholic beverage. (7) Refusal to allow city inspectors or police admission to inspect premises. (S) Illegal gambling on premises. (9) Failure to take reasonable steps to stop person from leaving premi�es with alco- holic beverage. (10) Failure to make application for license renewal prior to license expiration date. (11) Sale of intoxicating liquor where only license is for nonintoxicating liquor. (12) Failure to comply with statutory, and ordinance requirements for liability in- surance. For those violations which occur in on-sale intoxicating liquor estahlishments listed above in numbers (3), (4), (5), (6), (8), (9), (10) and (11), Supp. No. 40 aa��`�� LICENSES § 409.26 so. When deviating from these standazds, the council shall provide written reasons that specify why the penalty selected was more appropriate. (b) Presumptiae penalties for uiolations. Ad- verse penalties for convictions or violations shall be presumed as follows (unless specified, num- bers below indicate consecutive days' suspension): Appe¢rance Ist 2nd 3rd 4th Revocation NA NA Revocation NA NA Fine Fine Fine Fine 5 Fine Fine Fine Fine 10 NA NA Fine Up to Revocation 18 Fine ITp to Revocation 18 6 18 Revocation 4 12 Revocation 15 Revo- NA cation 6 18 Revocation 4 12 Revocation 6 18 Revocation 6 18 Revocation R e - NA NA voca- tion which would be a first appeazance not involving multiple violations, a fine shall be imposed accord- ing tA the following schedule. For those violations 2197 �� § 40926 LEGISL.9TIVE CODE which occur in on-sale intoxicating liquor estab- lishments listed above in numbers (3) and (4), �vhich would be a second appearance notinvolv- ing multiple violations, the fine amounts set forth below shall be doubled. Seating capacity 0-149. . . _ . . .. . $ 500.00 Seating capacity 150 and over ... 1,000.00 For those violations which occur in off-sale into�cating liquor esta6lishments listed ahove in numbers (3), (4), (5), (6), (8), (9), (10) and (11), which would be a first appearance not involving multiple violations, a fine shall be imposed accord- ing to the following schedule, based on the square footage of the retail azea of the establishment. For those violations which occur in off-sale intoacicat- ing liquor establishments listed above in numbers (3) and (4), which would be a second appeazance not involving multiple violations, the fine amounts set forth below shall be doubled. 5,000 square feet or less . . . . . . . . $ 500.00 5,001 squaze feet or more ....... 1,000.00 Alicensee who would be making a first appear- ance before the council may elect to pay the fine to the Office of License, Inspections and Environ- mental Protection without an appearance before the council, unless the notice of violation has indicated that a hearing is required because of circumstances which may warrant deviation from the presumptive penalty. Payment of the recem- mended fuxe will be considered to be a waiver of the hearing to which the licensee is entitled, and shall be considered an "appearance" for the pur- pose of determining presumptive penalties for subsequent violations. (c) Multiple uiol¢tions. At a licensee's first appearance before the city council, the council shall consider and act upon all the violations that have been alleged and/or incorporated in the notices sent to the licensee under the administra- tive procedures act up to and including the formal notice of hearing. The counc9l in that case shall consider the presumptive penalty for each such violation under the "ls Appearance" column in paragraph (b) above. The occurrence of multiple violations shall be grounds for departure from such penalties in the council's discretion. �olations occuning after the date of the notice of hearing that aze brought to the attention of the city attorney prior to the hearing date before an administrative law judge (or before the council in an uncontested facts hearing) may be added to the notice(s) by stipulation if the licensee admits to the facts, and shall in that case be treated as though part of the "ls` Appeazance." In all other cases, violations occurring after the date of the formal notice of hearing shall be the subject of a separate proceeding and dealt with as a"2aa Appearance" before the council. The same procedures shall apply to a second, third or fourth appeazance before the council. (d) Subsequent appear¢nces. Upon a seeond, third or fourth appearance before the council by a garticulaz licensee, the council shall impose the presumptive penalty for the violation or viola- tions giving rise to the subsequent appearance without regard to the particular violation or vio- lations that were the subject of the first or prior appearance. (e) Comput¢tion of time: (1) If a licensee appears before the council for any violation in paragraph (b) where that violation has occurred within twelve (12) calendar months after the first appeaz- ance of the same licensee for a violation listed in paragraph (b) above, the current appeazance shall be treated as a second appearance for the purpose of detezmin- ing the presumptive penalty. (2) If a licensee has appeared before the coun- cil on two (2) previous occasions, both for violations listed in pazagraph (b) above, and if said licensee again appears before the council for a violation listed in said paragraph (b), and if the current violation occurred within eighteen (18) calendaz months of the violation that gave rise to the first appaarance before the council, then the current appearance shall be treated as a third appeazance for the purpose of determining presumptive pen- �tty. (3) If a licensee has appeared before the coun- cil on three (3) previous occasions, each Supp. No. 40 2198 q`�'�`�� LICENSES for violation listed in paragraph (b) above, and if said licensee again appears before the council for a violation listed in para- graph (b) above, and if the current viola- tion occuned cvithin thitty (30) calendaz months of the violation that gave rise to the first appeazance, then the current appeazance shall be treated as a fourth appeazance for the purpose of determin- ing the presumptive penalty. (4) Any appearance not covered by subsec- tions (1), (2) or (3) above shall be treated as a first appearance. In case of multiple violations in any appearance, the date to be used to measure whether twelve (12), eighteen Q8), or thirty (30) months have elapsed shall be the date of the violation last in time at the first appeazance, and the date of the violation first in time at any subsequent appeazance. (fl Other pen¢lties. Nothing in this section shall restrict or 1'unit the authority of the council to suspend up to sixty (60) days, revoke the license, or impose a civil fine not to exceed two thousand dollars ($2,000.00), to impose condi- tions or take any other adverse action in accor- dance with law, provided, that the license holder has been afforded an opportunity for a hearing in the manner provided for in section 310.05 of this Code. (g} Effect of responsible business pr¢ctices in determining pen¢Zty. In determining the appropri- ate penalty, the council may, in its discretion, consider evidence submitted to it in the case of uncontested adverse actions or submitted to a hearing exaininer in a contested hearing upon which findings af fact have been made that a licensee has £ollowed or is likely to follow in the future responsible business practices in regard to sales to intoxicated persons and sales to minors. (1) For the purposes of service to intoxicated persons, evidence of responsible business practices may include, but is not lunited to, those policies, procedures and actions that are implemented at time of service and that: a. Encourage persons not to become into�cated if they consume alcoholic beverages on the defendant's prem- ises; §40926 b. Promote availability of nonalcoholic beverages and food; c. Promote safe transportation altema- tives other than driving �vhile intox- icated; d. Prohibit employees and agents of defendant from consuming alcoholic beverages while acting in their ca- pacity as employees or agents; e. Estabiish promotions and mazket- ing efforts that publicize responsible business practices to the defendant's customers and community; £ Implement comprehensive training procedures; g. Maintain an adequate, trained num- ber of employees and agents for the type and size of defendant's busi- ness; h. Establish a standardized method for hiring qualified employees; i. Reprimand employees who violate employer policies and procedures; and j. Show that the licensee has enrolled in recognized courses providingtrain- ing to self and one (1) or more em- ployees of the licensed establish- ment in regard to standards for responsible liquor service. (2) For the purposes of service to minors, evidence ofresponsible business practices may include, but is not lunited to, those listed in subsection (1) and the following: a. Management policies that are imple- mented at the time of service and that ensure the egamination of proof of identification (as established by state law) for all persons seeking service of alcoholic beverages who may reasonably be suspected to be minors; b. Comprehensive training of employ- ees who are responsible for such eazamination regarding the detection of false or altered identification; and c. Enrollment by the licensee in zecog- nized courses providing training to Supp. No. 40 219$.1 ��i�� § 409.26 LEGISLATIVE CODE self and one (1) or more employees of the licensed establishment in regazd to standards for responsible liquor service. (Ord. No. 17556, § 1, 4-28-86; Ord. No. 17657, § 14, 6-8-89; Ord. No. 17675, § 1, 8-22-89; Ord. No. 17694, § 2, 11-7-89; Ord. No. 17756, § 1, 8-7-90; Ord. No. 17924, §§ 2, 3, 5-7-92; C.F. No. 92-1929, § 1, 2-9-93; C.F. No. 97-1445, § 1, 12-30-97; C.F. Iso. 98-866, § 1, 11-4-98) Chapter 410. Noninto�cating Malt Liquor�` Sec. 410.01. License required; definitions; ex- ceptions. (a) No person shall sell nonintoxicating malt liquors at retail in Saint Paul without a license. (b) On-sale licenses shall permit the licensee for the sale of said nonintoxicating malt liquors to sell such for consumption on the premises. On- sale licenses shall be granted only to restaurants, hotels, bona fide clubs, establishments for the exclusive sale of nonintoaucating malt beverages and establishments licensed for the exclusive sale of intoxicating liquors. The term "bona fide clubs" shall include private clubs licensed under former Chapter 404 of this Code so long as they meet the requuements of Minnesota Statutes, Section 340A.101, subsection 7. (c) Off-sale licenses shall permit the licensee of such nonintoxicating malt liquors to sell same in original packages for consumption off the prem- ises only. td) Nothing herein contained shall be con- strued to prohibit the sale and delivery in original packages directly to the consumer by the manu- facturer or distributor of noninto�cating malt liquors. (e) No off-sale license shall be issued for any place where noninioxicating malt beverages shall be sold for consumption on the premises. •Cross references—Liquor and beer regulations gener- ally, 2Stle XXN; intoxicating ]iquor, Ch. 409; use of beer and into�cating liquor protubited in motion picture drice-in the- atres, § 416.06(b). (fl ��Nonintoxicating malt liquor" is any fer- mented malt liquor, potable as a beverage, con- taixung not less than one-half of one percent (�/z of 190) alcohol by volume nor more than three and tcvo-tenths (3.2) percent alcohol by weight. (Code 1956, §§ 310.01, 310.17, 31020; Ord. No. 17676, § 8, 8-24-89) Sec. 410.02. Fees. Before the filing of an application for either of the licenses hereinbefore provided for, tne appli- cant shall deposit with the license inspector the sum of two hundred fifty dollars ($250.00) if the application is for an on-sale license, and the sum of fifty dollars (�50.00) if the application is for an off-sale license, and the inspector shall thereupon deliver to such applicant duplicate receipts there- for, containing a statement of the purpose for which such deposit was made, and one (1) of said receipts shall be attached to and filed with said application. (Code 1956, § 310.03; Ord. No. 16843, 10-20-81) Sec. 410.03. Licensing requirements. (a) Applic¢tion. Any person desiring either of the licenses as hereinbefore described shall first make an application therefor to the council of the City of Saint Paul by filing with the inspector of said city for presentation by him to the council of an application in writing therefor, which said application shallset forth with reasenable accu- racy the name and place of residence of the applicant; the exact location of the place at which the applicant proposes to carry on the business of selling nonintozicating malt liquors; and whether or not he has at any time previous to the date thereof been engaged in said business or in the business of selling foodstuffs in the City of Saint Paul, and if so, when and where. Said application shall be signed by the applicant in person or by an officer of the club seeking said license or by an officer of the corporation seeking said license, and when received by the inspector shall be by him placed on file, and the name of the applicant shall be by him registered in a book of registration to be kept in the office of said inspector for that pur- pose; procided, hocvever, that said inspector shall Supp. No. 40 21982 aoo cr� xatt & counxo�e 15 W. Kellogg Boulevard Sairst Paul, MN 55102 � CITY OF SAINT PAUL OFFICE OF THE CITY AITORNEY -1 .<<<. . ....<< � � The Honorable Beverly Jones Heydinger Administrative Law Judge Office of Administrative Hearings 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, MN 55401-2138 ---_� � s OFFICE OF ADMINISTRATIVE HEARINGS FOR THE COUNCIL OF THE CITY OF SAINT PAUL In Re T`he Licenses He1d By James Bailey, Inc. d/b/a Arlina on Pub CITY'S PROPOSED EXHIBTTS May 4, 1999 �� TO: Judge George A. Beck, Admnustrarive Law Judge, O�ce of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401 The following consfitutes a list of the City's proposed eafhibits for fhe Administrafive Hearing on May 4, 1999. Exhibit No. E�. No. 1 E�. No. 2 E�. No. 3 E�. No. 4 Exh. No. 5 Description Police Report CN 99-013-Ob3, dated January 29, 1999 (1 p.); Police Report CN 99-016-294, dated February 4, 1999 (1 p.); License Information Report, dated Februuy 12, 1999 (12 pp.); Notice of Violation, dated February 18, 1999, with �davit of Service � PP•)> Notice of Hearing, dated March 1&, 1999, with Affidauit of Service (4 pp.}. �c�—Y' � q �,1,�1 Also attached please find courtesy copies of appiicable St. Paul City ordinances: St. Paul Legislative Code § 310.05 St. Paul Legislative Code § 310.06 St. Paul Legislative Code § 310.17 St. Paul Legislative Code § 409.07 Minn. Stat. §340A.502 Minn. Stat. §340A.504 Respectfully submitted this 4th day of May, 1999. -- 7./ o,..�...� 1 t�c��, R Virginia Palmer Assistant City Attorney Office of The City Attorney 400 City Hall 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 (612)266-8710 Pa9e �of�_ ST. PAUL POLICE DEPARTMENT ��gt � D� GENERAL REPOpT �•v r� 3 Occurrad � At Q BstwNn: �k � � � �,�o - ra �o s�e�e: "_ �A hrs, on and hrs. on Crim� I.pb � i�¢� Property Room SQD 3(`1 S L��z� W�=Lc= o� �ou �A7�6� d1:��c1� A� ad��ousC� �7ox�c�TE�? W1�•• wAZ� ov� c� �ATLE�'� �1,� � - o-� ; t�� coK.�E oE �A �ti� � ��.�-�,� I�RNA f} o a57 f�.w�. oa )-a 9- t� s s , v��z� �� (� w�: s z0'� As: %JE��s,.�(p �Av�ES ��.o°� )-31 , 4�3��, 51 . �t.�R�Y ;'�ACC.�. .-� �5�e1? /-1 rv� � � � WA S � ��,��,1� � S-� i H� l3�� AT -T� -� 5 Ts,�.� A�� !� sAs�j ' Y�s,r wAS L�+sr�ACC.: � O�czr�E� - Ta Ti..A�s�o� �.J��S,�� Tp �t To�. 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O (�DO(U � O �n m zn � tn�m �' v[n m y :° �'3� v,Zc o oi � Om �� y Z o� �� oni -I Qa Q � T �. - i � � '6 � 7 � � O � � � 0 � O �''ll (T7 D(4 � N (4 p (D � � �. p � y m� Dc a� ��' r < D �-o � � 3�a � T o� � Qm.SUi m o m- �� m o 0 0 3 m= m °" �D � �, g y r- 3 0 ° o o �, m s O, � N j 7 N v y � o m N � — r ^� D� I i � �� Z� � I Z O 1 m f D Z, '� � � � m c � 4 � W, L W 4 i , D n � �� i �m` i ; m � : f I ��i ' r. ,� I i !tl N I � �� NI 1 A� --i WI xi �I � � �I V � v� � N N � �� O � � o ' m Z c 3 s m J N I ;C � �! �I m oi INI �; � �� m g IN c 'm � O �� I0 I� z c 3 v m � � y m x a 0 m m o p � � C7 O c 3 � L I D �' � v' �� ! m { z; D��i {��i Z n D Z W � �D � Z � � Z � v c � � N �� ' � N Z N m < m m� N O. o ri � A 7 w m I �j N I a� n� �� 9 � c�� m r s � cQ m r ^�. N 0 � C7 m � n � r = � � N � ry 7 � Q � � c m r n A � m � � � � � r� 0 � A � O � N � r tp � t� � �p N .� �p y �a � m O m "" x � a N O m m �; - � V � C7 � T � . ' m . �� AN N � � A 7� tC �3 � m � � � � � � � � � � � , � 0 3 n m m m � 0 D r , � � _ N N 7 � O z 3 � T � A m v 0 � v m m A > N O M ..ti N OFFICE ^F THE CITY ATTORNEY C(m>on i brnson, Jc. Cip� drtorney� CITY OF SAINT PAUL Form Coleman. dlapor February 18, 1499 Owner/Mana�er Arlington Pub 721 Payne Avenue Saint Paul, Minnesota �S101 cir;tDirrsron aonc;� xou 15 ICest f:e(logg Blvd. Sainr Paul dlinnesota 5570? NOTICE OF VIOLATION RE: All licenses held by James Bailey, Inc. d/b/a Arlington Pub for the premises located at 721 Payne Ave. in St. Paul License ID No.:16443 Dear Sir/Madam: ��Z�� The D'uector of the O�ce of License, Inspections and Envizonmental Protection will recommend that adverse action be taken against your licenses based on the following information: On January 29,1999, at approaimately 2:37 a.m. a Saint Paul Police Officer observed an individual walk out of Arlington Pub, located at 721 Payne Avenue. The person appeared to be extremely intoxicated. The officer asked if he had been drinking at the bar, and the individual responded that he had been drinking there and it was "last call". The individual was transported to detox, where he regisfered a.20 alcohol concentration. This conduct is in violation of Minn. Stat. §340A.504, subd. 2 and Saint Paul Legislative Code §409.07(a), prohibifing the sale of alcohol after 1:00 am.; Minn, Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person; and Saint Paul Legislative Code §409.07(c), prohibiting the consumption or display of alcohol at any time when the sale is not permitted. On February 4,1999, at approximately 12:23 a.m., tt��o police officers were sent to Arlington Pub on a report of a man inside causing problems. On arrival, they observed an individual �rho appeared to be very intoxicated. They spoke to the bartender, whd admitted that he had served the individual a drink. This individual was transported to defox, where he registered a.25 alcohol concentration. This is a violation of Minn. Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person. r E� Telephone: 651166-8710 Fncsimile: 65! ?98-56I9 -�'__!__ ❑ _ James Bailey, Inc. d/b/a Arlington Pub _ City's Exh. No. 4 Page 2 Arlington Pub February 18, 1999 � 4�� Since this incident occurred ��ithin twel� months of your prez violation, this incident �i constitute a"2nd Appearance" for the purpose of determining the appropriate penalty. In addition, since this incident actualiy invol��ed multiple violations, the City Council may, at its discretion, depart from the presumptive penalties identified in Saint Paul Legislative Code §409.26. The licensin� office w111 recommend a ten day suspension of all licenses. If you do not dispute the above facts, but w�ish to have a public hearin� before the Saint Paul City Council, you will need to send me a letter �� a statement admitting the violations and requesting a hearing by Monday, Mazch 1, 1999. The matter �ill then be scheduled before the City Council for a public hearing to determine what penalty, if any, to impose. You will have an opportunity to appear before the Council and make a statement on your own behalf as to the penalty to be imposed. If you do dispute the above facts, a hearing w be scheduled before an Administrative Law Judge. At that hearing both you and the City will be able to appear and present witnesses, evidence, and cross-examine the other's c�ztnesses. The St. Paul City Council wzll ultimately decide the case. Please let me know in writing no later than Monday, Mazch 1, 1999 how you wish to proceed. Tf you have not contacted me by Monday, March 1,1999, I will assume that you are not contesring the facts and will schedule this matter for a hearing before the City Council. If you have any questions, feel free to contact me at 266-8710. Sincerely, ,. _��ucw� ��c.��-t/� Virginia D. Palmer Assistant City Attomey cc: Robert Kessler, D'uector of LIEP Christine Rozek, Deputy Director of LIEP Bruce Sylvester, Community Organizer, Payne Phalen Dist. 5 Planning Council, 1014 Payne Ave., St. Paui, MN 5� 101 �y/ l in � � w STATE OF MINNESOTA ) ) SS. COUNTY OF RAMSEY AFgIDAV2T OF SERVICE BY MAIL JOANNE G. CLEMENTS, being Pirst duly sworn, deposes and says that on February 19, 1999, she served the attached NOTICE OF VIOLATION on the following named person by placing a true and correct copy thereof in an envelope addressed as follows: Owner/Manager Arlington Puh 721 Payne Avenue St. Paul, MN. 55101 (which is the last known address of said person) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 19th day of Febr�ry, 1999. Notary PETER P.PANGBORN NOTAAY PUBLIC b�. E�tr&v Jan. 31. 200( OFFICE O� "'88 CITY ATTORNEY QaytonM. ,inson,lr.,CiryAtforney CITY OF SAINT PAUL �vi[Division Norm Coleman, Mayor 400 Gry Ha!! IS WesY Ke[loggBlvd SaintPau! Minnesota5510? Mazch 18, 1999 NOTICE OF HEARING Mazk Vaught Attorney at Law Six West Fifth Street, Suite 700 Saint Paul, Minnesota 55102 q q,�� Telephnne: 651266-87Z0 F¢csimile: 65l 298-5619 RE: All licenses held by James Bailey, Inc. d/b(a Arlington Pub a/k/a Bailey's Baz for the gremises located at 721 Payne Ave. in St. Paul License ID No.: 16443 Our File Number: G99-0056 Deaz Mr. Vaught: � Please take notice that a hearing wiil be held at the followin� time, date and place conceming all licenses for the premises stated above: Date: Tuesday, May 4,1999 Time: 9:30 a.m. Place: Room 41 St. Paul City Hall 15 W. I{ellogg Blvd. St. Paul, MN. 55102 The hearing will be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: Name: George A. Beck Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, iVl�i T. 55�01 Telephone: 612-341-7601 J � James Bailey, Inc. d/b/a Arli City's Exh. No. 5 � �� Pub — �� The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse action agauist such licenses, under Chapter 310, inciuding sections 310.05 and 314.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non- intoxicatin� liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penalries or conditions. Evidence will be presented to the jud�e which may lead to adverse action against all the licenses you hold at the above premises as follows: On January 29, 1999, at approximately 2:37 a.m. a Saint Paut Police Officer observed an individuai walk ont of Arlinb on Pub, located at 721 Payne Avenue. The person appeared to be extremely intoxicated. The officer asked if he had been drinking at the bar, and the individual responded that he had been drinking there and it �vas "last call". The individual was transported to detox, where he registered a.20 alcohol concentration. This conduct is in violation of Minn. Stat. §340A.504, subd. 2 and 5aint Paul Lepislative Code §409.07(a), prohibiting the sale of alcohoi after �:00 a.m.; Minn. Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person; and Saint Paul Legislative Code §409.07(c), prohibiting the consumprion or display of alcohol at any time when the sale is not permitted. On February 4,1999, at approximately 12:23 a.m., two police officers were sent to Arlington Pub on a report of a man inside causing problems. On arrival, they observed an individual who appeared to be very intoxicated. They spoke to the bartender, who admitted that he had served the individual a drink. This individual was transported to detos, tvhere he re� stered a.25 alcohol concentration. This is a violation of Minn. Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person. The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrative La�v Judge will have all parties identify themselves for the record. The City will then present its witnesses and evidence each of whom the licensee or attomey may cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the City's attomey may cross-examine. The Administrative Law Tudge may in addition hear relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceedin�; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concludine azguments may be made by the parties. Followin� the hearing, the Judse will prepaze Findings of Fact, Conclusions of Law, and a specific recommendation for action to be taken by the City Council. Notice of Hearing = Page 2 �c�.��► You should brina to the hearing all documents, records and witnesses you will or may need to support your position. Subpoenas may be available to compel the attendance of witnesses or the production of documents in confomuty with Minnesota Ru1es, part 140�_7�00. If a stigulation or agreement can be reached as to the facts, that stipulation will be presented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. If the Iicensee or his representative faiis to appeaz at the hearin" their ability to challenge the allegations will be forfeited and the allegarions against them which have been stated earlier in this notice may be taken as true. If non-public data is received into evidence at the hearing, it may become public unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. If you have any questions, you can call me at 266-8710. Very tnxly yours, �/� aC�� Virginia D. Palmer Assistant City Attorney cc: Nancy Thomas, Office of Adminisuative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, S10 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Bruce Sylvester, Community Organizer, Payne Phalen Dist. 5 Plauning Council, 1014 Payne Ave., St. Paul, NN 5� 101 ?iotice of Aearing -� Page 3 G`�"�� STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY AFFIDAVIT OF 5ERVICE BY MAIL JOANNE G. CLEMENTS, being £irst duly sworn, deposes and says that on March 19, 1999, she served the attached NOTICE OF HEARING on the following named attomey by placing a true and correct copy thereof in an envelope addressed as follows: Mr. Mark Vaught Attorney at Law Six West Fifth Street, Suite 700 St. Paul, MN. 55102 (which is the last known address of said attorney) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. �� _—.,� Subscribed and sworn to before me this 19th dav of�FiazEi� 1999 . .�y = " �1 April 30, 1999 STATE OF MIN1�iESOTA OFFICE OF ADMIPIISTRATLVE HEARINGS 100 Washington Square, Suite 170U 100 Washington Avenue South Minneapol'�s, Minnesota 55401-2138 VIA FAX AND MA1L Virginia D. Palmer Ass+stant Gity Attorney 400 City Half 15 West Kellogg Boutevard St. Paul, Minnesota 55102 FAX: (651) 298-5619 Mark Vaught Attomey at Law Six West Fifth Street, Suite 70p St. Paul, Minnesota 55102 FAX: (651) 224-8328 q�'�'�� RE: In the Matter of the Licenses Heid by James Bailey, fnc., d/b/a Arlington Pub a/k/a Bailey's Bar for the Premises Located at 721 Payne Avenue, St. Paui, Minnesota; OAH Docket No. 1-2111- 12155-3. Dear Counsel: Due to a conflict in my schedule, the above matter wi11 be heard by Administrative Law Judge Beverly Jones Heydinger. Her telephone number is (612) 341-7606. The time, date and piace of the hearing remain the same. GAS:ic cc: Docket Clerk Sincer ly, �/�`°'� ( "`"� . ` -- �-1 � GEORGE A. BECK Administrative Law Judge Telephone: 612/341-7601 Providiog �mpaNal Heanngs for Government and Citizens An Equai Opportuniry Employer Administrative Law Section & Administrative Services (6'12) 34b7600 � TDD No. (612) 3A1-7346 � Fax No. (612} 349-2665 r - it 1 _ �* -V _:�� = `� :<�1=� y:� �C�-� t� � STATE OF MINNESOTA OFFICE OF ADMII�iISTRATIVE f�ARII�TGS HEARING SLTBPOENA TO: Police Officer Sean Burton St. Paul Police Department 100 East 11 Street St. Paul, Minnesota 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Administrative Law Judge George A. Beck of the Oifice of Administrative Hearings of the State of Minnesota, at St. Paul City Hall, Room 41, 15 West Kellogg Boulevard, in the City of St. Paul, Ramsey County, Minnesota, on the 4th day of May, 1999 at 9:3a o'clock in the forenoon, to appear as a witness in the matter of Licenses held by James Baily, Inc. d/b/a Arlinaton Pub a/k!a Sailey's Bar for the Premises located at 721 Payne Avenue, St. Paul, Minnesota: OAH Docket No. 1-2111-12155-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chiefi A inistrative Law Judge, at Minneapolis, Minnesota this 30th day of Ap il, 999. �1,... t � , � r C�`�l�l-�i KE N TH A. NICKOLAI / �, Chief dministrative Law Judge �`"1 612/341-7600 Subpoena requested by: Virginia Palmer, (651) 266-8710 � �,� �� . . �� . • �� .�_._ y��r-�_��'_ • • `1 1 ., � ..� � _-�'��- y'` � ' � , - TO: Police Officer Jason Urbanski St. Paul Police Department 100 East 11�' Street St. Paul, Minnesota 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Adm+nistrative Law Judge George A. Beck of the O�ce of Administrative Hearings ofi the State of Minnesota, at St. Paul City Hall, Room 41, 15 West Kellogg Boulevard, in the City of St. Paul, Ramsey County, Minnesota, on the 4th day of May, 1999 at 9:30 o'ciock in the forenoon, to appear as a witness in the matter of Licenses held b r�James Bailey Inc. d/b!a Arlinqton Pub a/k/a Bailev's Bar for the Premises located at 721 Pavne Avenue, St. Paul. Minnesota• OAH Docket No. 1-2111-12155-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chief Administrative Law Judge, at Minneapolis, Minnesota this 30th day of Apri1, 1999. �,�. �'`�� - l�� < <�� KENNE H A. NICKOLAf � � � �� Chief Administrative Law Judge 612/341-7600 Subpoena requested by: Virginia Palmer, (651) 266-8710 � - ��,�� , y ... �-'�-�`�v� -�.= _v:; " <�1:� - STATE OF MINNESOTA OFFICE OF ADMIlVISTRATIVE HEARINGS HEARING SiTBPOENA TO: Police Officer Joe� Johnson St. Paul Police Department 100 East 11 Street St. Paul, Minnesota 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Administrative Law Judge George A. Beck of the Office of Administrative Hearings of the State of Minnesota, at St. Paul City Hall, Room 41, 15 West Kelfogg Soulevard, in the City of St. Paut, Ramsey County, Minnesota, on the 4th day of May, 1999 at 9:30 o'clock in the forenoon, to appear as a witness in the matter of Licenses held � James Bailev, Inc. d/b/a Arlincaton Pub a/k/a Baifev's Bar for the Premises located at 721 Pavne Avenue. St. Paul. Minnesota• OAH Docket No. 1-2111-12155-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chief Admirr�'strative Law Judge, at Minneapolis, Minnesota this 30th day of Apr'I, 19�9J. �t"• (� . ��: •.� KEf�1SJE�H A. NICKOLAI ChiefA ministrative Law Judge 612/341-7600 Subpoena requested by: Virginia Palmer, (651) 266-8710 � - �_1!� OFFICE OF THE CITYATTORNEY Clayton M Robinson, Jr., CiryAttorney CIT'Y OF SAINT PAiJL ' '_- ': ;� ! ,:' ` �' Norns Coleman, Mayor _� �,';C 2� �;' �� CiviZDivision 400 Ciry Hall IS West Kellogg Blvd Saint Pau1, Minnesota 55102 qq-Z�� Telephone: 612 266-87I0 Facsimile: 612 298-5679 _-.- !(Yi(�' �;�y „C:1�... � JS Apri127, 1999 VIA FAX AND U.S. MAIL Judge George Beck c% Louise Cooper Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, Minnesota 55401-2138 RE: Licenses held by James Bailey, Inc. d/b/a Arlington Pub a/k/a Bailey's Bar for the premises located at 721 Payne Ave. in Saint Paul License ID No.: 16443 Our File Nuxnber G99-0066 Dear Judge Beck: The purpose of this letter is to request subpoenas pursuant to Minnesota Rules, part 1400.7000 relating to the above-mentioned contested case hearing that is scheduled to be heard before you on Tuesday, May 4, 1999. This request is made on behalf of Ms. Virginia Palmer, the attomey assigned to this matter. The City of St. Paul licensing division will be calling these wimesses to testify regarding the incidents which serves as the basis for the action against the licenses of James Bailey, Inc. d/b/a Arlington Pub a/k/a Bailey's Bar. In order to ensure that these individuals will be in attendance to tesrify, the City of St. Paul requests from the State Office of Administrative Hearings subpoenas far the following individuals: 1. Police Officer Sean Burton St. Paul Police Department 100 East 11�' Street Saint Paul, Minnesota 55101 2. Police Officer Jason Urbanski St. Paul Police Department 100 East 11` Street Saint Paui, Minnesota 55101 3. Police Officer Joel Johnson St. Paul Police Department 100 East 11` Street Saint Paul, Minnesota 55101 � ,. � 1 / �Y/� The hearing is scheduled to start at 930 a.m. on Tuesday, May 4, 1999, in Room 41, St. Paul City Hall, 15 West Kellogg Boulevazd, St. Paul, MN 55102. If you need additional information or have any questions regazding this request, please do not hesitate to call me at 266-8776. Thank you for your considerarion in this matter. Sincerel , i Peter P. Pangt Legal Assistant Page 2 OFFICE OF THE CiTY A'i'TORAtEY ClaytonM Robinson. J.., CiryAttornty �1.��1 � � � 6 CITY OF SAINT PAUL Narm Coleman, .Mayor ctvn Dlvrs;an 400 C,ry Xall 1 S West Kellagg $l�d. Sainr Pauf, hlinnesota 55102 Telaplmne 612166-8i10 Facs�mile 612 298-5619 FAX TRANSMISSION DATE: Aprit 27, 1999 TO: Judge GeorgB Beck clo Louise Cooper dffic9 of Administrative H�Brings NUMBER OF PAGES (including cover page): 3 FROM: Peter Pangborn Legal Assistant St. Paul City Attorney's Office 400 City Hall FAX No.: 349-2665 FAX No.: 298-5619 1/ you d0 not receive ati pages of thls fransmission, p/ease contact: Peter Pangborn Teleph�ne No. 286-8778 ` z�uite'd 6Z9S 85Z �S9 ,t3Na011C ,llI� , ��Cd !.. �Z:�: 556�-%z-�+db APR.-2�'99��UE1 10:09 OFFICE OF ADMIN.HEARING TEL:6123492665 P.001 TRAHS.9CT[O\� REPORT RecePtian Transaction(s) completed > NO. TX DATE/TIME DESTI�ATION DURATION PGS. RESULT MODE 644 APR. 27 30+07 651 298 5619 0° 00' SD" 003 OK N ECM i r' OFPICH OF T8S CITY ATTORNEY (�� Clayton M. Rabinson, lr., City Allnrney � ti( � 7 f_' { �� .� �- �J A. i�� i�- `; J CITY OF SAINT PAUL — cNanNUeoR Norm Cnfeman, Mayor �, � F � a �.. 7 r' '�+. {� 400 Ciry Hall � �.t, L_ k;i tw• �1� ts{Yes(Keltaggstvd . _ - Saint Pau� Mirsnama 55702 r.. . J 7 � , :. _ i .. .. March 18, 1999 NOTICE OF HEARING Mazk Vaught Attomey at Law Six West Fifth Street, Suite 700 Saint Paul, Minnesota 55102 Tetephnnc 65l 266-8770 Facsimile: 651298-56I9 RE: All licenses held by 3ames Bailey, Inc. dlbia Arlington Pub aikla Bailey's Baz for the premises located at 721 Payne Ave. in St. Paul License ID No.: 16443 Our File 1Vumber: G99-6066 Dear Mr. Vaught: Please take notice that a hearing will be held at the foilowing time, date and place concerning all licenses for the premises stated above: Date: Tuesday, May 4,1999 Time: 9:30 a.m. Place: Room 41 St. Paul City Hall 15 W. Kellogg Blvd. St. Paul, MN. 5�142 The hearing will be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: Name: George A. Beck Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN. 55401 Telephone: 612-341-7601 , � � �� The Councii of the City of Saint Paul has the authority to provide for hearings conceming licensed premises and for adverse acrion against such licenses, under Cl�apter 310, including secfions 310.05 and 310.06, of the Saint Paui Legisiative Code. In the case of licenses for intoacicating and non- into�cating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse acrion may include revocation, suspension, fines and other penalties or condirions. Evidence will be presented to the judge which may lead to adverse action against a11 the licenses you hold at the above premises as follows: On January 29, 1999, at approximately 2:37 a.m. a Saint Paul Police Officer observed an individual wallc out of Arlington Pub, located at 721 Payne Avenue. The person appeared to be extremely intoxicated. The officer asked if he had been drinking at the bar, and the individual responded that he had been drinking there and it was °last call". The individual was transported to detox, where he registered a.20 alcohol concentration. This conduct is in violafion of Minn. Stat. §340A.504, subd. 2 and Saint Paul Legistative Code §4��.Oi(a), prohibiring the sale of alcohol after 1:00 a.m.; Minn. Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person; and Saint Paul Legislative Code §409.07(c), prohibiting the consumption or display of aicohol at any time whea the sale is not permitted. On February 4,1999, at appro�timately 12:23 a.m., two police officers were sent to Arlington Pub on a report of a man inside causing pro6lems. On arrival, they observed an individual who appeared to be very intoxicated. They spoke to the bartender, who admitted that he had served the individual a drink. This individual was transported to detox, where he registered a.25 alcohol concentration. This is a violation of Minn. Stat. §340A.502, prohibitina the sale of alcohol to an obviously into�cated person. The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrative Law Judae wi11 have a!1 garties idenfify themselves for the record. The City will then present its witnesses and evidence, each of whom the licensee or attomey may cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the Ciry's attomey may cross-examine. The Administrative Law Judge may in addition heaz relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial - interest in the outcome of the proceeding. Concluding azguments may be made by the parties. Following the hearing, the Judge will prepare Findings of Fact, Conclusions of Law, and a specific recommendation for action to be taken by the City Council. Notice of Hearing = Page 2 G�-��7 You should bring to the hearing all documents, records and witnesses you will or may need to support your posirion. Subpoenas may be availabie to compel the attendance of witnesses or the production of documents in conformity with Minnesota Rules, part 14Q0.7000. If a stipulation or agreement can he reached as to the facts, that stipulation will be presented to the Admuustrative Law Judge for incorporarion into his or her recommendation for Council action. If the licensee or his representarive fails to appear at the hearing, their ability to challenge the allegations will be forfeited and the allegations against them which have been stated earlier in this notice may be taken as true. If non-public data is received into evidence at the hearing, it may become public unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. If you have any questions, you can call me at 266-8710. Very truly yours, �� vu-C� � Virginia D. Palmer Assistant City Attomey cc: Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Bruce Sylvester, Community Organizer, Payne Phalen Dist. 5 Planning Council, 1014 Payne Ave., St. Paul, MN 55101 Notice of Hearing - Page 3 �� final decision after reviewing my report. In so doing, it may adopt, reject, or modify my Findings of Fact, ConcIusions, and Recommendations. The final decision of the City Council will not be made until my report has been available to the parties for at least ten days. The parties should check with the City to determine the procedures and time frame to file comments about my report. •• Beginning with Ms. Palmer, would the attorneys and parties please state and spell your names, and state your addresses for the record. V�r��nia. •• At this point would Mr. Vaught and Ms. Palmer please advise me of the witnesses whose testimony you propose to present and the ordez in which you intend to present your witnesses_ Are there any other preliminary matters to be addressed? Have you reached any stipulations about the facts? Do you have any written records or documents which you intend to introduce into evidence? Have they been provided to the other party? �� Have they been marked for identification? (If not, ask the attorneys to mark the e�ibits — numbers for City and Ietters for the license holder.) As I previousi ed, the nc as the burden of proof. It shall begin th rese tatio f evide ce. Testimony in this hearing should be given by question and answer. Witnesses, if you hear one of the attomeys object to a question which is asked of you, please do not answer. I will rule on the objection. If I sustain the objection, you may not answer. If I overrule the objection, you may answer. Part 1400.7300 of the Rules governs the admissibility of evidence at this hearing. It states that: The judge may admit all evidence which has probative value, including hearsay, if it is the type of evidence on which reasonab�e, prudent persons are accustomed to rely in the conduct of their serious affairs. The judge shall give effect to the rules of privilege recognized by law. Evidence which is incompetent, irrelevant, immaterial, or unduly repetitious shall be excluded. (END of Rule language) The rule I have just read is less formal than the rules of evidence in a court proceeding. I will consider evidence such as a � �� OATH OR AFFIRMATION Please stand while I administer the oath. Do you solemnly swear (affirm) that ail the staternents you are abaut to make in this proceeding are the truth, the whole truth and nothing but the truth? Tharlc you, yo:: may be seated. �I et�_ �c�. � n�.�rie. �o„ `1-�-e ,nQC.o.-d a�� hearsay evidence that might not be considered in court, if the evidence appears to be reliable. Are there any questions? Openings: Ms. Palmer, do you wish to make an opening statement? • Mr. Vaught, you can choose to give your opening statement right after Ms. Palmer gives hers, before any of the evidence is presented. Or you can wait untii after the City presents its evidence and give your opening statement befare presenting your evidence. Which would you prefer? Are there any questions before we begin? Ms. Palmer, you may proceed with your opening statemen±. FOLLOWING THE CITY'S OPENING... . Mr. Vaught, you may make your opening statement at this time. FOLLOWINGMr. T�aught'sOPENING... Ms. Palmer, you may call your fust witness. ��,�� Proceed with direct and cross-examination of the wimesses for the City, followed by witnesses for Mr. Vadnais. Opportunity for Itebuttal OPPORTUNiTY FOR CLOSiNG • Under the rules goveming this proceeding, the parties may choose to give a closing argument at this time or you may submit written arguments. Do you wish to make a closing staternent ar submit written arguments? Are there any additional matters to be addressed before I conclude this hearing? This concludes the hearing. Thank you Mr. Vaught and Ms. Palmer. And thank you to those of you who took the time to testify Yoday. Hearing adjourned. ORiG1NAL Presented By Refened To RESOLUTION CITY OF SAINT PAUL, NIINNESOTA Council File # l _l ��` Gteen Sheet # b� `"l�Z �� Committee: Date 1 WHEREAS, the Office of License, Inspections and Environmental Protection (LIEP) 2 initiated adverse action against the licenses of James Bailey, Inc. d/b/a Arlington Pub, 721 Payne 3 Avenue for alleged violations of the laws relating to sale and service of alcohol; and 4 5 WHEREAS, a hearing was held before Admuustrative Law Judge Beverly Jones 6 Heydinger on May 4, 1999 and she issued Findings of Fact, Conclusions of Law and 7 Recommendarion on June 25, 1999 in which she found that the City had not proved the 8 allegations, and recommended no action against the licenses; and 9 10 WIIEREAS, at the hearing on July 28, 1999, LIEP did not file exceptions to the Report 11 but recommended the adoption of the ALJ's Report and Recommendation; now, therefore, be it 12 13 RESOLVED, that the Council of the City of Saint Paul, after due deliberation based upon 14 all of the files, records and proceedings herein, adopts the ALJ's Findings, Conclusions and 15 Recommendarion, and the sazne shall be attached and incorporated herein by reference; and be it 16 17 18 19 20 21 22 FURTHER RESOLVED, that the adverse action against the licenses held by James Bailey, d/b/a Arlington Pub, 721 Payne Avenue, is hereby dismissed and no penalty shall be imposed. A copy of this Resolution, as adopted, shall be sent by first class mail to the Licensee, his attorney and the Administrative Law Judge. Requested by nepaztment of: By: Form Approved y City Attorney BY: X✓ �-�l s'K-e/` Approved by May for Submission to Council By: Appx By: By: Adopted by Council: Date ��C.`�l \ � Adoption Certified by Council Secretaxy �R-�C� 'ARTMINf/OFFICE/COUNCIL DATE WITNTED City Council Offices 8/4/99 GREEN SHEET No 63432 YTAC7 PERSOP} 8 PHOhE �nMFauDa�� InlllaflC�s D B ostro m, 266-8660 �„�,�� .� ST BE ON COUNCIL AGENM 8Y (M7� AESiGM 11, 1949 �� a,r.noaEr arcaFrx_ aourixc ono�e ❑ wwxcuLLafmr,E+ow. wux�u�sEav�accrc ❑wvdtlae.�sascv+i) ❑ � TOTAL # OF SIGNATURE PAGES (CLIP ALL IOCATIONS FOR SIGNATURE) Dismissing the adverse action against licenses held by James &ailey, DBA Arlingeon Pub, 721 Payne Avenue. PIANNING COMMISSfON Cf6 CAMMITTEE CIVfL SERYICE COMMISSION Hes tlris peismlf�m everworked under a coMract for this depaAment7 YES NO Fias this pHSONfirtn ever 6een a dty empioyee7 YES NO Doesthis pe�sonrFrm possess a sldN �rot �wnrial{ypo�sed by any curteM city empbyee? YES NO �s th� pe'sonlfitm atarpeted vcv�d«4 YES NO ,�r��rs�� s��rch G��2�r �llG 9� 4 1999 eosrmEV�t+ufi euocerEO <euee� eeuq ncrn�n eware�n v�s No INFORMATION (IXPWN)- �t - �� 15-2� 11-12155-3 STATE OF MINNESOfA OFFfCE OF Ai7PJlWfSTRATIVE HEARINGS �OR THE 5aINT PAUL CIN COUNCIL in the Matter of ihe License heid by James Bailey, lnc. d/b/a Arlington Pub for the premises located at 721 Payne Avenue, Saint Paui, Minnesota FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION This matter was heard by Administrative Law Judge Beverly Jones Heydinger, commencing at 9:30 a.m., May 4, 1999, at the St. Paul City Hali, Room 41, 15 West Kellogg Boulevard, Saint Paul, Minnesota. The hearing was held pursuant to Notice of Hearing given by Virgin+a D. Palmer, Assistant City Attorney, on behalf of the City of St. Paul. Ms. Palmer, 400 City Hail, 15 West Keliogg Blvd., Saint Paul, Minnesota 55102, appeared on behaif of the City. S. Mark Vaught, Attorney at Law, Six West Fifth Street, Suite 700, Saint Paul, Minnesota 55102-1412, appeared on behalf of James Bailey, Inc. dlb/a Arlington Pub, the ticensee. Following the hearing, the record was left open until May 18, 1999 for submission of closing arguments, and fiive days thereafter for response. The record cfosed on May 26, 1999. NOTICE This report is a recommendation, not a final decision. The St. Paul City Councii will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations. Pursuant to Minn. Stat. § 14.61 (1998), the City Councif shall not make a final decision until this Report has been made available to the parties for at least ten days. The pa�ties may fiie excepiions io inis Report and the City Council musi consider the exceptions in making a final decision. A copy of the City Counci!'s decision must be senied on the parties and the Admin+strative Law Judge by first class mail.� Parties shouid contact the Saint Paul City Council, 310 City Hail, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. � Mintt. Stat. § 14.62, subd. 1(1998). 4R-�/,'I STATEMENT OF THE tSSUES The issues presented at this hearing were: 1. Did the Licensee violate Minn. Stat. § 340A.5U4, subd. 2(1998), and Saint Paui Legislative Code § 409.07(a) which prohibits the sale of alcohol after 1:00 a.m.? 2. Did the Licensee violate Minn. Stat § 340A.502 (1998), which prohibits the sale of alcohol to an obviously intoxicated person, on either January 29, 1999, or February 4, 1999? 3. Did the Licensee violate Saint Paul Legislative Code § 409.07(c) which prohibits the consumption or display of alcohol at any time when the sale is not permitted? FINDINGS OF FACT 1. The Licensee, James Bailey, Inc., hoids licenses to operate a bar, Arfington Pub, located at 721 Payne Avenue in Saint Pau4, Minnesota. The bar is also known as Bailey's Pub. 2. On January 28, 1999, Thomas Doepner and James Werring feft work, bought firvo cases of beer, and returned to Doepners apartment on Bush Street at around 6:00 p.m. The apartment was within two blocks of the Arlington Pub. 3. Doepner, Werring and Doepner's girlfriend drank the two cases of beer. At 12:30 a.m., on January 29, 1999, Doepner's girifriend asked the men to be quiet or leave. Doepner invited Werring to stay on the couch for the night but Werring left the apartment at around 12:45. Doepner admitted that both men were very drunk, that Werring had on light clothing, and Doepner was uncertain that Werring could walk far because he was so intoxicated. It was a very cold night. 4. Karl Tacheny was the bartender at the Arlington Pub on January 29, 1999 when James Werring entered at around 12:45 a.m. and asked for a drink. Tacheny refused to serve Werring because he was intoxicated, and Tacheny had already g+ven "last call". Tacheny let Werring stay in the bar because it was very cold. He doubted that a cab would pick up Werring because Werring was so dcunk. Tacheny knew where Werring lived and decided to give Werring a ride home after closing up the bar. 5. Werring remained in the bar while 7acheny ciosed up, but when it was time to secure the money, Tacheny asked Werring to wait for him outside. Tacheny estimated the time was after 2:00 a.m. Within a few minutes, Tacheny completed closing up the bar, but when he opened the door to look for Werring, F� q9-�4� Werring was gone. Tacheny was very surprised, and looked around the parking lot and surrounding area fior Werring before leaving. ,. 6. it ordinarily takes between 45 and 90 minutes after the bar cfoses to c�san up and restock the bar before the bartender leaves the bar. 7. At approximately 2:30 a.m., Saint Paul Police Oificer Sean Burton was patro4ling Payne Avenue near the cosner of Payne and Minnehaha, by the police sub-station and across the street from the Arlington Pub. He saw a man come out of the door of the 6ar. The officer questioned the man, James Werring, because Werring appeared intoxicated, and he was out alone on a very cold night. 8. Werring told O�cer Burton that he had been drinking in the bar at that time, and that it was "last call". Werring also told the officer thai he had drunk in Bailey's Bar several times after closing. Officer Burton did not investigate to determine if there was anyone in the bar at that time. 9. Officer Burton transported Werring to the detox center. The officer called for back-up to investigate, but none was sent. Ai the detox center, a breath test was administered, and Werring was tested at .20 on the PBT, a prefiminary test that measures alcohoi concentration. Based on his experience and training as a police o�cer, Officer Burton considered Werring "extremefy intoxicated". 10. Werring remembers buying beer and returning to Doepner's apartment. He estimates he drank about 18 beers, but he cannot recall leaving the apartment, going to the 6ar, tafking to O�cer 6urton or being taken to the detox center. He recalls awakening at the detox center and suspects he blacked out. Werring has subsequently entered chemical dependency treatment. 11. Officer Burton returned to the area of Payne and Minnehaha after 3:00 a.m. When he checked the door of the bar at about 3:45 a.m., the door was locked. 12. The bar ordinarily gave "last call" between 12:30 and 12:45 and the patrons left by 1:00 a.m., or slightly thereafter. The main door of the bar is directly across the street from the neighborhood police station. 13. On February 4, 1999, Tacheny was tending bar when he saw two men enter and sit down in a booth about eight feet from the bar. One of the two came up to the bar and ordered two shots of Christian Brothers. Tacheny asked for ident+fication from both men. The second man, Dwight Dismuke, got up from the booth to show his identification, and returned to his seat. Tacheny did not notice any signs of intoxication. 3 ag • ��? 14. Tacheny poured the two drinks and the man who ordered the drinks carried them back to his seat +n the booth with Dismuke. ln less than five minutes an argument broke out befinreen the two men. The men were loud, waving their arms, and using profane 4anguage. Tacheny came out from behind the bar, took away the two ;s poured them into the bar sink, and told the men to leave. The man who ordered the drinks immediatefy departed. Dismuke said he would leave, but when he got up from the table, he stumbled and fefl. Tacheny helped him up and into a booth. Within moments, several Saint Paul police officers arrived. There were 10 to 15 other customers in the bar at the time. 15. Among the officers who arrived at the bar were Jason Urbanski and Joe( Johnston. Both were experienced o�cers. O�cer Johnston had covered Payne Avenue for many years and was familiar with the bar. O�cer Urbanski had four years experience in North �aini Paul anti w�s in irain+ng with the Saint Paul Police. He took charge at the scene, under Officer Johnston's supervision. He arrived at the bar within minutes of receiving a cafl that a customer was causing trouble. Upon arriving, the officers saw a man, later identified as Dismuke, slouched in a booth. 16. O�cer Urbanski observed that Dismuke was not very coherent and did not seem to understand the questions put to him by the police officers. Dismuke smelled of alcohol and his eyes were bloodshot. The police checked for identification. 17. Officer Urbanski asked Tacheny if he had served Dismuke a drink, and Tacheny acknowledged that he had. He toid the o�cers that Dismuke had been in the bar a short time. Neither Officer Urbanski nor Officer Johnston recailed seeing a drink on the tabfe in front of Dismuke when they arrived. Sased on their training and experience, both officers concluded that Dismuke was clearly intoxicated. This was corroborated by Officer Burton who was among the officers cailed to the bar. 18. Officer Johnston noted that Tacheny had not called the police, that he was surprised when they arrived, and a little bewildered by what had happened. Tacheny told O�cer Johnston that he did not know who had cailed the police. 19. 7he police took Dismuke to the detox center where he scored 2.5 on the PBT. 20. 7he police did not interview any of ihe other bar patrons and conducted no further investigation of the incident. Neither the police nor a licensing inspector questioned Tacheny about Dismuke's arrival at the bar or what Tacheny observed when he served Dismuke. 0 �°t•��? 21. Kristina Schweinier, senior licensing inspector, Office of License, Inspections and Environmental Protection, based her decision to initiate action solely on the police report. No investigator spoke with the licensee's employees or owners, or with Werring, Doepner, bar patrons or ar:y other witness. 22. Any Finding of Fact more proper{y termed as a Conclusion is hereby adopted as a Concfusion. CONCLUSIONS 1. The Administrative Law Judge and the Saint Paul City Counci! have jurisdiction in this case? 2. The Licensee received timely and proper notice of the hearing and the City has complied with all relevant substantive and procedural reGuiremenis of statute and rule. 3. The City has authority to suspend or revoke a license and to impose penafties for vioVation of applicable statutes and ruies 4 4. The Licensee is responsible for conduct in the licensed estabiishment, including conduct by an employee authorized to seli alcohol. 5. The City has the burden of proving that the Licensee violated the applicable provisions of state iaw and city ordinance by a preponderance of the evidence. 6. It is a violation of both state law and city ordinance to sell alcohoi after 1:00 a.m. The Gity failed to show by a preponderance of the evidence that Karl Tacheny so{d alcohol to James Wersing after 1:00 a.m. on January 29, 1999. 7. It is a violation ofi state law to sell aicohol to an obviously intoxicated person.� The City failed to show by a preponderance of the evidence that Karl Tacheny sold alcohol to James Werring on January 29, 1999, or that Dwight Dismuke was "obviousfy intoxicated" when Karl Tacheny sold him a drink on February 4, 1999. 8. A local authority, such as the City, may impose limitations within its limits beyond those established by state law. Z Minn. Stat. § 340A.415 (1498); Saint Paul L.egisiative Code § 409.12. ' See Minn. Stat. § 14.57 —14.61, 340A.415 (1498); Saint Paul Legislative Code § 310.05. " Minn. Stat. § 340A.415 (1998); Sainc Paul Legislative Code § 31Q.06. 5 Minn. Stat. § 340A.501 (1998); Saint Paul Le�islative Code §§ 310.17 and 409.14. 6 Minn. Stat. § 340A.504, subd. 2(1998); Saint Paul Legislative Code § 409.07(a). ' Minn. Stat § 340A.502 (1998). e Mirm. Stat. § 340A.509 (1998). a9-'149 9. It is a violafion of city ordinance to consume or display alcohol at any time when the sale of alcohol is not permitted. The City failed to show by a preponderance of the evidence that Kari Tacheny permitted consumption or display of alcohol after 1:00 a.m, on January 29, 1999. Based upon the foregoing Conclusions, the Administrative Law Judge makes the foliowing: RECOMMENDATION IT IS HEREBY RECOMMENDED: that the violations cited by the City of Saint Paul against the Licensee be DISMISSED in all respects. Dated this 25th day of June, 1999. • , L_ Beverly J s Heyding Admini ive Law J ge Reported: Tape-recorded {four tapes} MEMORANDUM Although there was circumstantial evidence that led the police officers to conclude that violations governing the operation of the Arlington Pub occurred, there was credible direct testimony to the contrary. For the three violations arising on January 29, 1999, Werring's statement that he had been drinking in the bar was the onfy evidence in support of the alfeged violations. Werring was, by alf accounts, extremefy intoxicated, and has no recoilection of the incident or what he told the o�cer. fn comparison, the other witnesses provided a detaifed account of Werring's drinking that evening, and their testimony was consistent with Oificer Burton's observation of Werring leaving the bar. Aithough Officer Burton's hypothesis is pfausible, the testimony ofi the other witnesses was detailed and consistent with a differeni conclusion. Neither ihe police nor the City inspectors investigated the matter on the evening Werring was detained, or thereafter. One can not conclude from the testimony of the offcers that the bartender served an "obviously intoxicated" person on February 4, 1999. Tacheny admitted serving Dismuke, but denied that Dismuke was obviously intoxicated when he 9 Saint Paul Legislative Code § 409.07(c). �q � �� was served. The officers could only testify to what they saw when called to the bar. Although it would be reasonable to conclude that Dismuke was intoxicated when he entered the bar, that is not the issue to be addressed. The question is whether the bartender ssrved an "obviously intoxicated" person. Tacheny's testimony on this poir,t is credible, and supported by the steps he took when Dismuke and his companion got in an argument. He took away the drinks he had served and to(d the men to leave the bar. The officers and Tacheny all testified that Dismuke did not have a drink when the police arrived, that Tacheny was surpsised to see them and had not called the police, and that Tacheny openly acknowledged that he had served Dismuke a drink. Neither the police nor the licensing inspectors asked Tacheny any questions about Dismuke's condition at the time Tacheny served him. Although several other peopfe were in the bar at the time, none were interviewed. "Obvious intoxication" must be "readily and piainiy evident without affirmative effort to perceive it and so cfear that the observer would be bound to notice.° � It does not require "reasonably active observation of his appearance, breath, speech and actions."'� Tacheny openly admitted that he noticed Dismuke and his companion enter the bar and take a seat, and that he asked them to come forward with identification. But he denied observing signs of obvious intoxication. Once the men began to argue, he retrieved the drinks and ejected the men. Although this all occurred within a few minutes, the uncontroverted evidence that Dismuke's companion was gone and that there was no drink in front of Dismuke, even though Tacheny did not know the police were cailed, supports Tacheny's testimony. The testimony of the police officers about what they observed was credible. Each of them sized up the situation, based on their training and experience. Their conclusions were neither unreasonable nor inconsistent with their observations. Nonetheless, the detailed testimony of the other witnesses supports a different conclusion. Tacheny, Werring and Doepner were open and straightforward. Hlthough the Ciiy asserts that Tacheny may nave a motive to lie, nothing in his answers or demeanor suggested that he was lying, nor were his answers inconsistent with the observations by the police, or with other witnesses to the events. Tacheny gave a detailed and credible account of the events that occurred. Mr. Clarence Bailey's testimony was given littie weight. He admitted that he was not present at the bar on either January 29 or February 4, 1999. He believes the poiice unfairly target the bars on Payne Avenue, but the facts of this 10 Mos v. Mjos, 178 N.W.2d 862, 867 (Minn. 1970). " Id. 7 4 q -��7 case support the actions of the police. The observations noted in their reports are consisfent wifh the testimony of the other witnesses. Nonetheless, their observations alone were insufficient to support a conciusion that the Licensee violated the cited p� ovisions ofi law. BJFi OFFICE OF THE CITY ATTORNEY �� / Citryfon M Robinson, Jr., CiryAttorney � CITY OF SAINT PAUL Norm Colemm�, Mayor June 30, 1999 Civil Division 400 City Hall IS West KelloggBlvd S¢int Paul, Minnesota 55102 NOTICE OF COUNCIL HEARING Mazk Vaught Attorney at Law Six West Fifth Street, Suite 700 Saint Paul, Minnesota 55102 Telephone: 651266-87I0 Facsimile: 6512985619 RE: All licenses held by James Bailey, Inc. d(b/a Arlington Pub alkla Bailey's Baz for the premises located at 721 Payne Ave. in St. Paul License ID No.: 16443 Our File Number: G99-0066 Deaz Mr. Vaught: Please take notice that a heazing on the report of the Administrative Law Judge concerning the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, July 14,1999, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opporhxnity to file exceptions to the report with the City Cierk at any time during normal business hours. You may also present oral or written azgument to the council at the Hearing. No new evidence will be received or testimony taken at this heazing. The Council will base its decision on the record of the proceedings before the Administrative Law Judge and on the azguments made and exceptions filed, but may depart from the recommendations of such Judge as pernutted by law in the exercise of its judgement and discretion. Sincerely, /'' � xriQ �. � �" � � c - t J '''� l Virgini�D. Palmer Assistant City Attorney Cci:�w� ��1�?� t^>�rf� sL ', `� cc: Nancy Anderson, Assistant Council Secretary, 310 City Ha11 Robert Kessler, Director, LIEP Christine Rozek, LIEP Bruce Sylvester, Community Organizer, Payne Phalen Dist. � Pl�anning �'ou�3cf1,10 �4 Payne Ave., St. Paui, MN 55101 4k _��? 15-2111-12155-3 STATE OF MINNESOTA OFFICE OF A�MIN!-STRATIVE HEARINGS FOR THE SAINT PAUL CITY COUNCIL In the Matter of the License held by James Bailey, Inc. d/b!a Arlington Pub for the premises located at 721 Payne Avenue, Sai�t Raul, Minnesota FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION This matter was heard by Administrative Law Judge Bever{y Jones Heydinger, commencing at 9:30 a.m., May 4, 1999, at the St. Paui City Hall, Room 41, 15 West Kellogg Boulevard, Saint Paul, Minnesota. The hearing was held pursuant to Notice of Hearing given by Virginia D. Palmer, Assistant City Attorney, on behaif of the City of St. Paul. Ms. Palmer, 400 City Hall, 15 West Kellogg Bivd., Saint Paul, Minnesota 55102, appeared on behaif of the City. S. Mark Vaught, Attorney at Law, Six West Fifth Street, Suite 700, Saint Paui, Minnesota 55102-1412, appeared on behalf ofi James Bailey, Inc, d/b/a Arlington Pub, the Licensee. Following the hearing, the record was left open untif May 18, 1999 for submission of ciosing arguments, and five days thereafter for response. The record closed on May 26, 1999. NOTICE This report is a recommendation, not a finai decision. The St. Paul City Council will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations. Pursuant to Minn. Stat. § 14.61 (1998), the City Council shai! not make a final decision until this Report has been made available to the parties for at least ten days. Th� pa�tiES may �'se exceptions to this Repori and the Ciiy Councii must consider the exceptions in making a fina{ decision. A copy of the City Council's decision must be served on the parties and the Administrative Law Judge by first class mail.� Parties should contact the Saint Paul City Councii, 3�0 City Hall, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. � Minn. Stat. § 14.62, subd. 1(1998). aq •'tc� STATEMENT OF THE ISSUES The issues presented at this hearing were: 1. Did the Licensee violate Minn. Stat. § 340A.5U4, subd. 2(1998), and Saint Paul Legisiative Code § 409.�7(a) which prohibits the sale of alcohol after 1:00 a.m.? 2. Did the Licensee violate Minn. Stat § 340A.502 (1998), which prohibits the sale of aicohol to an obviousiy intoxicated person, on either January 29, 1999, or February 4, 1999? 3. Did the Licensee violate Saint Paul Legislative Code § 409.07(c) which prohibits the consumption or dispiay of alcohol at any time when the sale is not permitted? FiNDINGS OF FACT 1. The Licensee, James Bailey, Inc., holds licenses to operate a bar, Arlington Pub, located at 721 Payne Avenue in Saint Paul, Minnesota. The bar is also known as Bailey's Pub. 2. On January 28, 1999, Thomas Doepner and James Werring left work, bought two cases of beer, and returned to Doepner's apartment on Bush Street at around 6:00 p.m. The apa�tment was within two blocks of the Arlington Pub. 3. Doepner, Werring and Doepner's girifriend drank the two cases of aeer. At 12:30 a.m., on January 29, 1999, Doepner's girlfriend asked the men fo be quiet or leave. Doepner invited Werring to stay on the couch for the night but Werring left the apartment at around 12:45. Doepner admitted that both men were very drunk, that Werring had on light clothing, and Doepner was uncertain that Werring could walk far because he was so intoxicated. It was a very cold night. 4. Karl Tacheny was the bartender at the Arlington Pub on January 29, 1999 when James Werring entered at around 12:45 a.m. and asked for a drink. Tacheny refused to serve Werring because he was intoxicated, and Tacheny had already given "last cali". Tacheny let Werring stay in the bar because it was very cold. He doubted that a cab would pick up Werring because Werring was so drunk. Tacheny knew where Werring lived and decided to give Werring a ride home after closing up the bar. 5. Werring remained in ihe bar whife Tacheny closed up, but when it was time to secure the money, Tacheny asked Werring to wait for him outside. Tacheny estimated the time was after 2:00 a.m. Within a few minutes, Tacheny completed closing up the bar, but when he opened the door to look for Werring, 2 qa.�G� Werring was gone. Tacheny was very surprised, and 400ked around the parking lot and surrounding area for Werring before leaving. ,- 6. it ordinarily takes between 45 and 90 minutes after the bar closes to c�ean up and resiock the bar before the bartender leaves the bar. 7. At approximately 2:30 a.m., Saint Paul Police Officer Sean Burton was patrolling Payne Avenue near the corner of Payne and Minnehaha, by the police sub-station and across the street from the Arlington Pub. He saw a man come out of the door of the bar. The officer questioned the man, James Werring, because Werring appeared intoxicated, and he was out alone on a very cold night. 8. Werring told Officer Burton that he had been drinking in the bar at that time, and that it was "last call". Werring also told the officer thai he rad drunk in Bailey's Bar severai times after closing. O�cer Burton did not investigate to determine if there was anyone in the bar at that time. 9. Officer Burton transported Werring to the detox center. The officer called for back-up to investigate, but none was sent. At the detox center, a breath test was administered, and Werring was tested at .20 on the PBT, a preliminary test that measures aicohol concentration. Based on his experience and training as a police officer, O�cer Burton considered Werring "extremely intoxicated". 10. Werring remembers buying beer and returning to Doepner's apartment. He estimates he drank about 18 beers, but he cannot recall feaving the apartment, going to the bar, talking to Officer Burton or being taken to the detox center. He recalls awakening at the detox center and suspects he blacked out. Werring has subsequently entered chemical dependency treatment. 11. Officer Burton returned to the area of Payne and Minnehaha after 3:00 a.m. When he checked the door of the bar at about 3:45 a.m., the door was locked. 12. The bar ordinarily gave "last call" between 12:30 and 12:45 and the patrons left by 1:00 a.m., or slightly thereafter. The main door of the bar is d'+rectly acsoss the street fram the neighborhood po4ice station. 13. On February 4, 1999, Tacheny was tending bar when he saw two men enter and sit down in a booth about eight feet from the bar. One of the two came up to the bar and ordered two shots of Christian Brothers. Tacheny asked for identification from both men. The second man, Dwight Dismuke, got up from the booth to show his identification, and returned to his seat. Tacheny did not notice any signs of intoxication. 3 R1-'►G� 14. Tacheny poured the two drinks and the man who ordered the drinks carried them back to his seat in the booth with Dismuke. In less than five minutes an argument broke out between the two men. The men were loud, waving their arms, and using profane ianguage. Sacheny came out from behind the bar, took away the twu �rinks, poured them into the bar sink, and toid the men to leave. The man who ordered the drinks immediately departed. Dismuke said he would leave, but when he got up from the table, he stumbled and fiell. Tacheny he{ped him up and into a boath. Within moments, severa( Saint Paul police officers arrived. There were 10 to 15 other customers in the bar at the time. 15. Among the officers who arrived at the bar were Jason Urbanski and Joel Johnston. Both were experienced officers. Officer Johnston had covered Payne Avenue for many years and was familiar with the bar. O�cer Urbanski had four years expesience in North Saint Paul and was in training with the Saint Paul Police. He took charge at the scene, under O�cer Johnston's supervision. He arrived at the bar within minutes of receiving a call that a customer was causing trouble. Upon arriving, the officers saw a man, later identified as Dismuke, slouched in a booth. 16. O�cer Urbanski observed that Dismuke was not very coherent and did not seem to understand the questians put to him by the police officers. Dismuke smelied of alcohol and his eyes were bloodshot. The police checked for identification. 17. O�cer Urbanski asked Tacheny if he had served Dismuke a drink, and Tacheny acknowledged that he had. He told the officers that Dismuke had been in the bar a short time. Neither Officer Urbanski nor Officer Johnston reca{led seeing a drink on the table in front of Dismuke when they arrived. Based on their training and experience, both officers concluded that Dismuke was clearly intoxicated. This was corroborated by Officer Burton who was among the officers called to the bar. 18. Officer Johnston noted that Tacheny had not called the police, that he was surprised when they arrived, and a little bewildered by what had happened. Tacheny told Officer Johnston that he d+d not know who had called the police. 19. The police took Dismuke to the detox center where he scored 2.5 on the PBT. 20. The police did not interview any of the other bar patrons and conducted no further investigation of the incident. Neither the police nor a licensing inspector questioned Tacheny about Dismuke's arrival at the bar or what Tacheny observed when he served Dismuke. � �a --k.� 21. Kristina Schweinler, senior licensing inspector, Office of License, Inspections and Environmental Protection, based her decision to initiate action solely on the police report. No investigator spoke with the licensee's employees or owners, or with Werring, Doepner, bar patrons or ar.y other witness. 22. Any Finding of Fact more properly termed as a Conclusion is hereby adopfed as a Conciusion. CONCLUSIONS 1. The Administrative Law Judge and the Saint Pau( City Counci! have jurisdiction in this case. 2. The Licensee received timely and proper notice of the hearing and the City has complied with all relevant substantive and procedural reQu:rem�nis of statute and rule. 3. The City has authority to suspend or revoke a license and to impose penaities for violation of applicable statutes and rules 4 4. The Licensee is responsib{e for conduct in the licensed establishment, including conduct by an employee authorized to seil alcohol. 5. The City has the burden of proving that the Licensee violated the applicable provisions of state law and city ordinance by a preponderance of the evidence. 6. It is a violation of both state law and city ordinance to se41 alcohol after 1:00 a.m. The City failed to show by a preponderance of the evidence that Kari Tacheny sold alcohol to James Werring after 1:00 a.m. on January 29, 1999. 7. It is a violafron of state law to sell alcoho( to an obviously intoxicated person.' The City failed to show by a preponderance of the evidence that Karl Tacheny sold alcohol to James Werring on January 29, 1999, or that Dwight Dismuke was "obviously intoxicated" when Kari Tacheny sold him a drink on February 4, 1999. 8. A focal authority, such as the City, may impose fimitations within its limits beyond those established by state law. z Minn. Stat. § 340AA t5 (1998); Saint Paul Legislative Code § 449.12. ' See Minn. Stat. § 14.57 — 14.61, 340A.415 (1998); Saint Paul Legislative Code § 310.05. 4 Minn. Stat. § 340A.415 (1998); Saint Paul Legislative Code § 310.06. 5 Minn. Stat. § 340A.501 (1998); Saint Paul Legislative Code §§ 310.17 and 409.14. 6 Minn. Stat. § 340A.504, subd. 2(1998); Saint Paul Legislative Code § 409.07(a). ' Minn. Stat. § 340A.5�2 (1998). $ Minn. Stat. § 340A.509 (1998). q`t-'14� 9. It is a violation of city ordinance to consume or display alcohol at any time when the sale of alcohol is not permitted. The City failed to show by a preponderance of tfie evidence that Kar1 Tacheny permitted consumption or display of alcohol after 1:00 a.m. on January 29, 1999. Based upon the fioregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RECOMMENDED: that the violations cited by the City of Saint Paui against the Licensee be DISMISSED in ali respects. Dated this 25th day of June, 1999. '�� . L_ Beverly J s Heyding Admini ive Law J ge Reported: Tape-recorded (four tapes) MENfORANDUM Although fhere was circumstantial evidence that led the police o�cers to concfude that violations governing the operation of the Arlington Pub occurred, there was credible direct testimony to the contrary. For the three violations arising on January 29, 1999, Werring's statement that he had been drinking in the bar was the only evidence in support of the alleged violations. Werring was, by all accounts, extremely intoxicated, and has no reco4lection of the incident or what he told the officer. In comparison, the other witnesses provided a detailed account of Werring's drinking that evening, and their testimony was consistent with Officer Burton's observation of Werring leaving the bar. Although Officer Burton's hypothesis is plausible, the testimony of the other witnesses was detailed and consistent with a different conclusion. Neither the police nor the City inspectors investigated the matter on the evening Werring was detained, or thereafter. One can not conclude from the testimony of the o�cers that the bartender served an "obviousiy intoxicated" person on February 4, 1999. Tacheny admitted serving Dismuke, but denied that Dismuke was obviously intoxicated when he ' Saint Paul Legislative Code § 409.07(c). C.� °ta-�� was served. The ofiFicers could only testify to what they saw when called to the bar. Although if would be reasonable to conclude that Dismuke was intoxicated when he entered fhe bar, that is not the issue to be addressed. The question is whether the barkender served an "obviously intoxicated" person. Tacheny's testimony on this poiri is credible, and supported by the steps he took when Dismuke and his companion goi in an argument. He took away the drinks he had served and told the men to leave the bar. The offcers and Tacheny afl testified that Dismuke did not have a drink when the police arrived, that Tacheny was surprised to see them and had not calied the police, and that Tacheny openly acknowledged that he had served Dismuke a drink. Neither the police nor the licensing inspectors asked Tacheny any questions about Dismuke's condition at the time Tacheny served him. Although several other people were in the bar at the time, none were interviewed. "Obvious intoxication" must be "readily and plainly evident without affirmative effort to perceive it and so clear that the observer would be bound to notice." It does not require "reasonably active observation of his appearance, breath, speech and actions."�� Tacheny openly admitted that he noticed Dismuke and his companion enter the bar and take a seat, and that he asked them to come forward with identification. But he denied observing signs of obvious intoxication. Once the men began to argue, he retrieved the drinks and ejected the men. Although this all occurred within a few minutes, the uncontroverted evidence that Dismuke's companion was gone and that there was no drink in front of Dismuke, even though Tacheny did not know the police were called, supports Tacheny's testimony. The testimony of the police officers about what they observed was credible. Each of them sized up the situaiion, based on their training and experience. Their conclusions were neither unreasonable nor inconsistent with their observations. Nonetheless, the detailed testimony of the other witnesses suppo�ts a different conc(usion. Tacheny, Werring and Doepner were open and straightforward. Although the Cify asserts that Tacheny may nave a motive to lie, nothing in his answers or demeanor suggested that he was lying, nor were his answers inconsistent with the observations by the police, or with other witnesses to the events. Tacheny gave a detailed and credibie account of the events that occurred. Mr. Cfarence Saiiey's testimony was given iittle weight. He admitted that he was not present at the bar on either January 29 or February 4, 1999. He believes the police unfairly target the bars on Payne Avenue, but the facts of this 10 Mjos v. Mjos, 178 N.W2d 862, 867 (Minn. 1970). " Id. �] a�-�c� case support the actions of the police. The observations noted in their reports are consistent with the testimony of the other witnesses. Nonefheless, fheir observations alone wers insu�cient to support a conciusion that the Licensee violated the cifed p�ovisions of law. BJH June 25, 1999 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 Fred Owusu City Clerk 170 City Hall 15 W. Kellogg Boulevard St. Paul, Minnesota 55102 R�'CEtYE� JUN 2 8 i999 C�T,Y �LERK q �,� �� RE: In the Matter of the License held by James Bailey, Inc. d/b/a Arlington Pub for the Premises Located at 721 Payne Avenue, Saint Paul, Minnesota; OAH Docket No. 12-2111-12155-3. Dear Mr. Owusu: Enclosed and served upon you is the Findings of Fact, Conclusions and Recommendation of the Administrative Law Judge in the above-entitled matter. Also enclosed is the official record and we are now closing our file. Sincerely, � � j �n _ � �� BEVERLY NES HEYDINGER Administrative Law Judge Telephone:612/341-7606 BJH:Ic Enclosure cc: Virginia D. Palmer Mark Vaught Providing Impartial Hearings for Government and Citizens An Eq u a l Opportunity Employer Administrative Law Section 8. Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 ; �q,�� STATE OF MINNESOTA) ) ss COUNTY OF HENNEPIN) AFFIDAVIT OF SERVICE BY U.S. MAIL Louise C. Cooper, being first duly sworn, hereby deposes and says that on the 25th day of June, 1999, at the City of Minneapolis, county and state aforementioned, she served the attached FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION: OAH Docket No. 15-2111-12155-3 by depositing in the United States mail at said City of Minneapolis, a true and correct copy thereof, properly enveloped, with first class postage prepaid and addressed to the individuals named herein. Fred Owusu City Clerk 170 City Hall 15 W. Kellogg Boulevard St. Paul, MN 55102 Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Kellogg Bivd. St. Paul, MN 55102 Mark Vaught Attorney at Law Six West Fifth St., Suite 700 St. Paul, MN 55102-1412 �-��—_� C _ C�-�-��'! Louise C. Cooper Subscribed and sworn to before me this 25th day of June ��'✓� �i°�.��-�-� Notary � lic 1999 5 ��"�M��nnr.nnnnMnnnnnn n��\nMAM � 2� CINDY ETIENNE �� NO7ARY PUBLIC-MINNESOTA ANOKA COUNTY My Comm. Expires Jan. 31, 2000 • WVVN/W VWV`JVyyyyyyyWV • � 4 �� 15-2111-12155-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATNE HEARINGS FOR THE SAINT PAUL CITY COUNCIL In the Matter of the License held by James Bailey, Inc. d/b!a Arlington Pub for the premises located at 721 Payne Avenue, Saint Paul, Minnesota FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION This matter was heard by Administrative Law Judge Beverly Jones Heydinger, commencing at 9:30 a.m., May 4, 1999, at the St. Paul City Hall, Room 41, 15 West Kellogg Boulevard, Saint Paul, Minnesota. The hearing was held pursuant to Notice of Hearing given by Virginia D. Palmer, Assistant City Attorney, on behalf of the City of St. Paul. Ms. Palmer, 400 City Hall, 15 West Kelfogg Blvd., Saint Paul, Minnesota 55102, appeared on behalf of the City. S. Mark Vaught, Attorney at Law, Six West Fifth Street, Suite 700, Saint Paul, Minnesota 55102-1412, appeared on behalf of James Bailey, Inc. d/b/a Arlington Pub, the Licensee. Following the hearing, the cecord was left open until May 18, 1999 for submission of closing arguments, and five days thereafter for response. The record closed on May 26, 1999. NOTICE This report is a recommendation, not a final decision. The St. Paul City Council will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conalusions, and Recommendations. Pursuant to Minn. Stat. § 14.61 (1998), the City Council shall not make a final decision until this Report has been made available to the parties for at least ten days. The parties may file exceptions to this Report and the City Council must consider the exceptions in making a final decision. A copy of the City Council's decision must be served on the parties and the Administrative Law Judge by first class mail.' Parties shoufd contact the Saint Paul City Councif, 310 City Hall, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. 1 Minn. Stat. § 14.62, subd. 1(1998). STATEMENT OF THE ISSUES The issues presented at this hearing were: 1. Did the Licensee violate Minn. Stat. § 34�A.5�4, subd. 2(1998), and Saint Paul Legislative Code § 409.07(a) which prohibits the sale of alcohol after 1:00 a.m.? 2. Did the Licensee violate Minn. Stat § 340A.502 (1998), which prohibits the sale of alcohol to an obviously intoxicated person, on either January 29, 1999, or February 4, 1999? 3. Did the Licensee violate Saint Paul Legislative Code § 409.07(c) which prohibits the consumption or display of alcohol at any time when the sale is not permitted? FINDINGS OF FACT 1. The Licensee, James Bailey, Inc., holds licenses to operate a bar, Arlington Pub, located at 721 Payne Avenue in Saint Paul, Minnesota. The bar is also known as Bailey's Pub. 2. On January 28, 1999, Thomas Doepner and James Werring left work, bought two cases of beer, and returned to Doepner's apartment on Bush Street at around 6:00 p.m. The apartment was within two blocks of the Arlington Pub. 3. Doepner, Werring and Doepner's girifriend drank the two cases of beer. At 12:30 a.m., on January 29, 1999, Doepner's girlfriend asked the men to be quiet or leave. Doepner invited Werring to stay on the couch for the night but Werring left the apartment at around 12:45. Doepner admitted that both men were very drunk, that Werring had on light clothing, and Doepner was uncertain that Werring could walk far because he was so intoxicated. 1t was a very cold night. 4. Karl Tacheny was the bartender at the Arlington Pub on January 29, 1999 when James Werring entered at around 12:45 a.m. and asked for a drink. Tacheny refused to serve Werring because he was intoxicated, and Tacheny had already given "last call". Tacheny let Werring stay in the bar because it was very cold. He doubted that a cab would pick up Werring because Werring was so drunk. Tacheny knew where Werring lived and decided to give Werring a ride home after closing up the bar. 5. Werring remained in the bar while Tacheny closed up, but when it was time to secure the money, Tacheny asked Werring to wait for him outside. Tacheny estimated the time was after 2:00 a.m. Within a few minutes, Tacheny completed closing up the bar, but when he opened the door to look for Werring, �q"�� 2 vl L� '� (�� Werring was gone. Tacheny was very surprised, and looked around the parking lot and surrounding area for Werring before leaving. 6. It ordinarily takes befir✓een 45 and 90 minutes after the bar closes to clean up and restock the bar before the bartender leaves the bar. 7. At approximately 2:30 a.m., Saint Paul Police Officer Sean Burton was patrolling Payne Avenue near the corner of Payne and Minnehaha, by the police sub-station and across the street from the Arlington Pub. He saw a man come out of the door of the bar. The officer questioned the man, James Werring, because Werring appeared intoxicated, and he was out alone on a very cold night. 8. Werring told Officer Burton that he had been drinking in the bar at that time, and that it was "last call". Werring also told the officer that he had drunk in Bailey's Bar several times after closing. Officer Burton did not investigate to determine if there was anyone in the bar at that time. 9. O�cer Burton transported Werring to the detox center. The officer called for back-up to investigate, but none was sent. At the detox center, a breath test was administered, and Werring was tested at .20 on the PBT, a preliminary test that measures alcohol concentration. Based on his experience and training as a police officer, O�cer Burton considered Werring "extremely intoxicated". 10. Werring remembers buying beer and returning to Doepner's apartment. He estimates he drank about 18 beers, but he cannot recail leaving the apartment, going to the bar, talking to Officer Burton or being taken to the detox center. He recalls awakening at the detox center and suspects he blacked out. Werring has subsequently entered chemical dependency treatment. 11. Officer Burton returned to the area of Payne and Minnehaha after 3:00 a.m. When he checked the door of the bar at about 3:45 a.m., the door was locked. 12. The bar ordinarily gave "last call" between 12:30 and 12:45 and the patrons left by 1:00 a.m., or slightfy thereafter. The main door of the bar is directly across the street from the neighborhood police station. 13. On February 4, 1999, Tacheny was tending bar when he saw two men enter and sit down in a booth about eight feet from the bar. One of the two came up to the bar and ordered two shots of Christian Brothers. Tacheny asked for identification from both men. The second man, Dwight Dismuke, got up from the booth to show his identification, and returned to his seat. Tacheny did not notice any signs of intoxication. k? �� 14. Tacheny poured the two drinks and the man who ordered the drinks carried them back to his seat in the booth with Dismuke_ ln less than five minutes an argument broke out between the two men. The men were loud, waving their arms, and using profane language. Tacheny came out from behind the bar, took away the two drinks, poured them into the bar sink, and told the men to leave. The man who ordered the drinks immediately departed. Dismuke said he would leave, but when he got up from the table, he stumbled and fell. Tacheny helped him up and into a booth. Within moments, several Saint Paul police oSficers arrived. There were 10 to 15 other customers in the bar at the time. 15. Among the officers who arrived at the bar were Jason Urbanski and Joel Johnston. Both were experienced officers. Officer Johnston had covered Payne Avenue for many years and was familiar with the bar. Officer Urbanski had four years experience in North Saint Paul and was in training with the Saint Paul Police. He took charge at the scene, under Officer Johnston's supervision. He arrived at the bar within minutes of receiving a call that a customer was causing trouble. Upon arriving, the officers saw a man, later identified as Dismuke, slouched in a booth. 16. Officer Urbanski observed that Dismuke was not very coherent and did not seem to understand the questions put to him by the police o�cers. Dismuke smelled of alcohol and his eyes were bloodshot. The police checked for identification. 17. Officer Urbanski asked Tacheny if he had served Dismuke a drink, and Tacheny acknowledged that he had. He told the officers that Dismuke had been in the bar a short time. Neither Officer Urbanski nor Officer Johnston recalled seeing a drink on the tabfe in front of Dismuke when they arrived. Based on their training and experience, both officers concluded that Dismuke was clearly intoxicated. This was corroborated by Officer Burton who was among the officers called to the bar. 18. Officer Johnston noted that Tacheny had not called the police, that he was surprised when they arrived, and a little bewildered by what had happened. Tacheny told Officer Johnston that he did not know who had called the police. 19. The police took Dismuke to the detox center where he scored 2.5 on the PBT. 20. The police did not interview any of the other bar patrons and conducted no further investigation of the incident. Neither the police nor a licensing inspector questioned Tacheny about Dismuke's arrival at the bar or what Tacheny observed when he served Dismuke. 0 G �,�� 21. Kristina Schweinler, senior licensing inspector, O�ce of License, lnspections and Environmental Protection, based her decision to initiate action solely on the police report. No investigator spoke with the licensee's employees or owners, or with Werring, Doepner, bar patrons or any other witness. 22. Any Finding of Fact more properfy termed as a Concfusion is hereby adopted as a Conclusion. CONCLUSIONS 1. The Administrative Law Judge and the Saint Paul City Council have jurisdiction in this case? 2. The Licensee received timely and proper notice of the hearing and the City has complied with all relevant substantive and procedural requirements of statute and rule 3 3. The City has authority to suspend or revoke a license and to impose penalties for violation of applicable statutes and rules.' 4. The Licensee is responsible for conduct in the licensed establishment, including conduct by an employee authorized to sell alcohol 5 5. The City has the burden of proving that the Licensee violated the applicable provisions of state law and city ordinance by a preponderance of the evidence. 6. It is a violation of both state law and city ordinance to sell alcohol after 1:00 a.m. The City failed to show by a preponderance of the evidence that Karl Tacheny sold alcohol to James Werring after 1:00 a.m. on January 29, 1999. 7. It is a violation of state law to sell alcohol to an obviously intoxicated person.' The City failed to show by a preponderance of the evidence that Karl Tacheny sold alcohol to James Werring on January 29, 1999, or that Dwight Dismuke was "obviously intoxicated" when Karl Tacheny sold him a drink on February 4, 1999. 8. A local authority, such as the City, may impose limitations within its limits beyond those established by state law. Z Minn. Stat. § 3AOA.415 (1998); Saint Paul Legislative Code § 409.12. 3 See Minn. Stat. § 14.57 —14.61, 340A.415 (1998); Saint Paul Legislative Code § 310.05. ° Minn. Stat. § 340A.415 (1998); Saint Paul Legislative Code § 310.06. 5 Minn. Stat. § 340A.501(1998); Saint Paul Legislative Code §§ 310.17 and 409.14. 6 Minn. Stat. § 340A.504, subd. 2(1998); Saint Paul Legislative Code § 409.07(a). ' Minn. Stat. § 340A.502 (1998). a Minn. Stat. § 340A.509 (1998). 5 r��,�� 9. It is a violation of city ordinance to consume or display alcohol at any time when the sale of alcohof is not permitted 9 The City failed to show by a preponderance of the evidence that Karl Tacheny permiited consumption or display of alcohol after 1:00 a.m. on January 29, 1999. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RECOMMENDED: that the violations cited by the City of Saint Paul against the Licensee be DISMISSED in ali respects. Dated this 25th day of June, 1999. • 9 G �� fJ �_ Beverly .! s Heydin Admini ive Law J ge Reported: Tape-recorded (four tapes) MEMORANDUM Although there was circumstantial evidence that led the police officers to conclude that violations governing the operation of the Arlington Pub occurred, there was credible direct testimony to the contrary. For the three violations arising on January 29, 1999, Werring's statement that he had been drinking in the bar was the only evidence in support of the alleged violations. Werring was, by all accounts, extremely intoxicated, and has no recollection of the incident or what he told the o�cer. !n comparison, the other witnesses provided a detailed account of Werring's drinking that evening, and their testimony was cons+stent with Officer Burton's observation of Werring leaving the bar. Although Officer Burton's hypothesis is plausibfe, the testimony of the other witnesses was detailed and consistent with a different concfusion. Neither the pofice nor the City inspectors investigated the matter on the evening Werring was detained, or thereafter. One can not conclude from the testimony of the offcers that the bartender served an "obviously intoxicated" person on February 4, 1999. Tacheny admitted serving Dismuke, but denied that Dismuke was obviously intoxicated when he 9 Saint Paul Legislarive Code § 409.07(c). C q q,�ti�`� was served. The ofiFicers couid oniy testify to what they saw when called to the bar. Although it would be reasonabie to conclude that Dismuke was intoxicated when he entered the bar, that is not the issue to be addressed. The question is whether the bartender served an "obviously intoxicated" person. Tacheny's testimony on this point is credible, and supported by the steps he took when Dismuke and his companion got in an argument. He took away the drinks he had served and told the men to leave the bar. The officers and Tacheny all testified that Dismuke did not have a drink when the police arrived, that Tacheny was surprised to see them and had not called the police, and that Tacheny openly acknowledged that he had served Dismuke a drink. Neither the police nor the licensing inspectors asked Tacheny any questions about Dismuke's condition at the time Tacheny served him. Although several other people were in the bar at the time, none were interviewed. "Obvious intoxication" must be "readily and plainly evident without affirmative effort to perceive it and so clear that the observer would be bound to notice." 10 It does not require "reasonably active observation of his appearance, breath, speech and actions."�� Tacheny openly admitted that he noticed Dismuke and his companion enter the bar and take a seat, and that he asked them to come forward with identification. But he denied observing signs of obvious intoxication. Once the men began to argue, he retrieved the drinks and ejected the men. Although this all occurred within a few minutes, the uncontroverted evidence that Dismuke's companion was gone and that there was no drink in firont of Dismuke, even though Tacheny did not know the police were called, supports Tacheny's testimony. The testimony of the police officers about what they observed was credible. Each of them sized up the situation, based on their training and experience. Their conclusions were neither unreasonable nor inconsistent with their observations. Nonetheless, the detailed testimony of the other witnesses supports a difEerent conclusion. Tacheny, Werring and Doepner were open and straightforward. Although the City asserts that Tacheny may have a motive to lie, nothing in his answers or demeanor suggested that he was lying, nor were his answers inconsistent with the observations by the police, or with other witnesses to the events. Tacheny gave a detailed and credible account of the events that occurred. Mr. Clarence Bailey's testimony was given little weight. He admitted that he was not present at the bar on either January 29 or February 4, 1999. He believes the police unfairly target the bars on Payne Avenue, but the facts of this 10 Mos v. Mjos, 178 N.W.2d 862, 867 (Minn. 1970). �� Id. 7 �a,�� case support the actions of the police. The observations noted in their reports are consistent with the testimony ofi the other witnesses. Nonetheless, their observations alone were insufficient to support a conciusion that the Licensee violated the cited provisions of law. BJH �c�,�c�� OFFICE OF ADMINISTRATIVE HEARINGS � _ � '�_ � FOR THE CO[INCIL OF � ^ � ° - -� THE CTTY OF SAINT PAUL "'. 2 ��r ; 2: 5 g , � ;'� �= ' . . . .:;5 � �,_ ; , In the Matter of the Licenses held by OAH Docket No. 1-2111-12155 � James Bailey, Inc., d/b/a Arlington Pub a/k/a Bailey's Arlington Pub or Bailey's LICENSEE'S FINAL ARGUMENT Pub, For the Premises Located at 721 Payne Avenue, Saint Paul, Minnesota. T'he i,icensee in the above-entitled matter offers the following final argument as a consequence of the hearing held on Tuesday, May 4, 1999, pursuant to a Notice of Hearing dated March 18, 1999. As it did at the hearing, Licensee concedes that matters preliminary to the hearing were conducted in accordance with the law and does not intend to review or rebut those procedures here. Nor is a lengthy recitation of the facts necessary. Therefore, whatever facts are necessary to an understanding of the arguments of the Licensee will be reviewed as a part of the argument presented below. The City alle�ed that two incidents, ene occurring on Jar_uary 29, J 999 and a second occurring on February 4, 1999, serve as the basis for the four alieged violations. Each incident is analyzed in turn below. INCIDENT OF JANUARY 29,1999 The City alleges, based on a police report admitted to evidence and the testimony of police officer Sean Burton, that the Licensee committed the following three violations on January 29: V� �� 1. Sale of Alcohol after 1:00 a.m. in violation of Minnesota Statutes (MSA) Section 340A.504, Subd. 2 and Saint Paul I,egislative Code (SPLC) Chapter 409.07(a). 2. Sale to an Obviouslv Intoxicated Person in violation of MSA Section 340A.502. Consum�tion or Displav of Alcohol at Anv Time When is Not Permitted in violation of SPLC 409.07(c). It attempting to prove its case, the City offers no evidence at a11 based on direct observation of any of the conduct complained o£ The City's entire case is based upon two facts. First, a conversation took place between officer Burton and 3ames Floyd Werring in front of the licensed premises about which conversation officer Burton testified and his report reflects that Mr. Werring responded to a question from the officer by stating that he, Werring, was in the establishment for "last call". Second, the conversation took place, according to the officer's testimony and report at 2:37 a.m. Even if, for purposes of this argument, the Licensee conceded, without rebuttal, both facts presented by the City, the City has failed to dischazge its burden of proof with respect to all three alleged violations. With respect to Counts 1 and 2, there is no evidence of sale of alcohol to Mr. Wemng at all, let alone sale after 1:00 a.m. Nor, with respect to Count 3, is there any evidence in record that there was consumption or display of alcohol after 1:00 a.m., even if there was consumption by Mr. Werring in the establishment. Even imputing that Mr. We�ring's statement to office Burton about last call is evidence that he drank that date in �� /�� the establishment, the City has offered no evidence of sale to Mr. Werring, or sale after 1:00 a.m., or consumption or display after I:00 a.m. Officer Burton conducted no investigation beyond taking Mr. Werring to Detox, an investigation that might have yielded further evidence. The officer testified because of other calls necessitating police attention, neither he nor any other officer was able to do follow up investigation. While assignment of police o�cers is sole]y within the discretion of the City and while, under the circumstances, the failure of officer Burton or other officers to conduct further investigation may be fully understandable, that inability to investigate further does not constitute evidence that the violation occurred. In other words, speculation that other evidence might have been developed had the police been able to conduct further investigation does not constitute proof that such evidence existed. In the absence of that proof, the City has failed to dischasge its burden, regardless of the merits of the reasons given for failing to conduct further investigation. Further, the evidence offered by the Licensee in the form of the testimony of Mr. Werring, Thomas Doepner and Karl Tacheny, the bartender on duty on the night in question, offers both direct and credible evidence that none of the violations occurred. Mr. Doepner's testimony, while indicating that Mr. Werring was exceptionaily intoxicated on the evening in question, cleazly establishes that Mr. Werring spent most of the evening drinking with him, not in the licensed premises, and that he would have arrived at the licensed premises shortly before 1:00 a.m. Mr. Werring's own testimony about his complete lack of inemory of the events of the evening, including an inability to even remember being in the establishment at all or anywhere else after 9:00 p.m., particularly when coupled with the fact that his blood ��,1+�'l alcohol concentration, when measured at the Detox Center, was .20, casts substantial doubt on the credibility and probative value of Mr. Werring's statements to Officer Burton. And, the testimony of the bartender, Kazl Tacheny, who is the only person who directly wimessed and remembers the events of the evening, was credible, consistent with the other testimony and ofFers a view of the events of the evening and the facts pornayed in such a way as to rebut any slight presumption of any violation by the Licensee. Mr. Tacheny testified that Mr. Wening entered the licensed premises shortly before closing by way of a door that would indicate he came from the direction of Mr. Doepner's residence. He further testified that though he knew Mr. Werring, he recognized Mr. Werring's condition and did not serve him alcohol---nar for that matter did Mr. Werring request any alcoholic beverage according to Mr. Tacheny. Mr. Tacheny went on to indicate that he intended to give Mr. Werring a ride home because of his condition, the hour and the weather. He, therefore, left Mr. Werring sleeping at the baz while he conducted with post-closing duties. Accardingly to his testimony, he let Mr. Werring out the front door, immediately across the street from the police substation where he would be fully visible to anyone who might be looking, just before putting away the keys and the monies from the evening sales and just before intending to leave himsel£ Mr. Tacheny's explanation that he took Mr. Werring to the door and let him out as a security measure just before hiding the monies and keys as a security measure is both credible and appropriate. 0 �� Every fact in Mr. Tacheny's testimony of the evening's events is consistent with every other piece of testnnony in the record except Mr. Werring's apparent statement to Officer Burton that he had a drink in the bar at last call. The relative credibility of the testimony of Mr. Tacheny when matched against the hearsay testimony of officer Burton about the testimony of Mr. Wezring and Mr. Wemng's own testimony about his lack of recollection, clearly tilts the scales heavily in favor of assigning a substantially greater probative value to Mr. Tacheny's testimony. The City is expected to argue that Mr. Tacheny, as an employee of the baz, has an interest in the outcome. While uue, this fact does not, in itself, constitute rebuttal of Mr. Tacheny's testimony nor proof that his testamony was not truthful and accurate. To the contrary, if Mr. Tacheny had actually sold alcohol to Mr. Werring and allowed its consumption after 1:00 a.m., one would hardly expect that he would have been so naive as to have ejected an obviously intoxicated person onto a public sidewalk immediately across the street from a police station at 2:37 a.m. Every credible aspect of the testimony argues strongly that the events of that evening transpired precisely in the way Mr. Tacheny reported them. And, therefore, the conclusion that the City has failed to carry its burden with respect to all three of the counts from the incident of January 29, 1999 is urged upon the finder of fact. INCIDENT OF FEBRUARY 4.1999 The City alleges, based on a police report submitted into evidence and the testimony of police officers Urbanski and Johnston, that the Licensee committed the following violation on February 4, 1999: 1. Sale to an Obviouslv Intoxicated Person in violation of MSA Section 340A.502. �q,�� The facts do not appear to be substantially in question in this incident. The only direct evidence based on personal observation of the facts, which may have constituted a violation, is presented in the testunony of the bartender, Karl Tacheny. The evidence offered by the police officer, saue for the alleged statements by Mr. Tacheny as recorded in Officer Urbanski's police report, all are based on heazsay and require substantial inferences and inductive leaps. Mr. Tacheny indicated he served the party, Mr. Dismuke, who the City claims was intoxicated, but under circumstances a result of which he did not make an immediate assessment that the man was intoxicated. His companion ordered arid paid for the drinks for both men. Mr. Tacheny followed procedure and asked for identification from both men, which was shown to him across the bar. He had no substantial conversation with Mr. Dismuke at that time and he testified there was nothing about Mr. Dismuke's activity at the time of the identification check, which led him to conclude that the man was intoxicated. A licensee or agent of the same, such as Mr. Tacheny, does not have an affirmative duty to refrain from selling liquor to a person who bears no signs of intoxication by readily detectable by ordinary observation. Knudsen vs. Peickert, 221 N.�V.2d 78�(Minn.1974); See also Mjos vs. Villaee of Howard Lake, 178 N. W,2d 862 (Minn.1970). According to Mr. Tacheny unrebutted testimony, that is exactly the situation here. And, Mr. Tacheny testifies that shortly after Mr. Dismuke's partner purchased the drinks, he observed a commotion and an ensuing loud argument between the two men. He immediately left his post behind the bar, went to the table where the two were sitting, retrieved the drinks---which he emptied in the bar sink---and ejected both men from the ��.'�� bar. It was at that point that Mr. Dismuke fell and hit his head. Mr. Tacheny helped him into a booth by the door, intending to cali him a cab, when police entered the establishment, presumably in response to a call from a patron on a cell phone. As in the prior incident, there is nothiug inconsistent in Mr. Tacheny's testimony and the police reports or testimony of the o�cers, save for the fact that the police report omits the actions of Mr. Tacheny in retrieving the drinks and ejecting the two men after becoming aware of the azgument. The argument occurred only a short time after the men entered the bar. Further, the fact that the second man wasn't present in the bar when the police arrived, gives credibility to Mr. Tacheny's testimony that he ejected the two. Further, the testimony of the officers that they observed no glasses or bottles in which liquor might be served in the booth in which they found Mr. Dismuke gives credibility to Mr. Tacheny's testimony about how Mr. Dismuke came to be in the booth after falling and the fact that Mr. Tacheny had retrieved the drinks from the two men. Mr. Tacheny acted firmly and immediately upon realizing that there was a problem. He acted in an appropriate manner. There is no evidence that he realized Mr. Dismuke was intoxicated at the time the drinks were sold to his companion. Far from constituting a violation of the law, the actions of Mr. Tacheny are exactly those which should be expected of one in his position upon discovery of any irregularity. There is no evidence in the record that Mr. Tacheny was cognizant that Mr. Dismuke was intoxicated at the time he provided the drinks to Mr. Dismuke's companion. Therefore, particularly in light of Mr. Tacheny's actions upon realizing there was a problem, the fact finder is urged to conclude that there was no violation and that �� the actions of Mr. Tacheny were consistent with the requirements of the cited statutory provision. The testimony of a prior violation at the establishment is not particuiarly relevant for three reasons. One, it did not involve the type of violations alleged in these two matters. Two, Mr. Tacheny was not the party who comm9tted the offense. Three, the prior violation must be judged against a background of nearly twenty of ownership and operation by the current Licensee with no violations whatsoever. Respectfully submitted, Dated: May 18, 1999 �/�-- - S. Mark Vaught Attorney for Licensee Suite 700, Six West Fifth Street Saint Paul, Minnesota 55102-1412 (651)297-6400 (651) 224-8328 (fax) Attorney Reg. No. 131519 .�. 8£6Z �}osauuiW `si�odeauui�j y}nog anuany uo�6u�yseM OOl OOL6 a�mS `aienbg uo�BwyseM 006 s6waea�{ ani�ea�s�uiwpy;o ao�}}p aBpn� nne ani��a�siwwpy �a6uip�aH sauo� �(��ana8 a�qeaouoH ayl a31S3f1CJ3H 3�I�k13S SS31iO4V OOb9�L6Z R 59) ZIbI'ZOI55 E�osauviyl `Ined yuies laaixs i[xji3 xsa� ztS �OOL altns t7277716' A2Kt0716' 1.H�JR�''A � �S OFFICE OF Tf� CITY ATTORNEY Clayton M Robimron, Jr., City Attomey CITY OF SA.INT PAUL Nonrs Coleman, Mayor May 18,1999 The Honorable Beverly Jones Heydinger Administrative Law Judge OfFice of Administrative Hearings 100 Washington Squaze, Suite 1700 100 Washington Avenue South Minneapolis, MN 55401-2138 " _ . , il - - - 'CiviZDivision y ,,� � � ,� OL4('ilyHal! Telephone:651266-87I0 - ., , � �r. t�S iYestKelloggBJvd Facsimile: 6�I 298-3619 Sairst Paul, Minnesota JSIO2 , 1 'i'° �- ..�. _i.I�..iJ RE: In the Matter of the License held by James Bailey, Inc. d/b/a Arlington Pub for the premises located at 721 Payne Avenue, Saint Paul Minnesota OAH Docket #: 1-2111-12155-3 Dear Judge Heydinger: Enclosed please find a copy of the City's Fina1 Argument in the above-entitled matter. A copy has been served upon counsel for the licensee by U.S. mail. I have also enclosed the most recent version of Saint Paul Legislative Code §409.26, which contains the penalty matrix for liquor license violations. Sincerely, � ,� �� Virginia D. Palmer Assistant City Attorney 2� cc: S. Mazk Vaught OFFICE OF THE CITY ATTORNEY ClaytonM Robrnsan, Jr., CiryAltorney �j/) /�' n1 Vl") W CITY OF SAINT PAUL t leman, Mayor ��+r Civil Division 400 City Half 15 i➢est Kellogg Blvd Saint Paul, Minnesola 55102 Telephone: 651266-8710 Facsimile: 651298-5619 May 18, 1999 S. Mark Vaught Attorney at Law Six West Fifth Street, Suite 700 Saint Paul, MN 55102 RE: In the Matter of the License held by James Bailey, Inc. d/b/a Arlington Pub for the premises located at 721 Payne Avenue, Saint Paui Minnesota OAH Docket #: 1-2111-12155-3 Deaz Mr. Vaught: Enclosed and served upon you by U.S. mail, please find a copy of the City's Final Argument in the above-entitled matter. A copy has been sent to you by facsimile as well. Sincerely, d �-��L � �,� Virginia D. Palmer Assistant City Attomey cc: Beverly Jones Heydinger, Administrative Law Judge a� OFFICE OF ADMINISTRATIVE HEARINGS FOR T`HE COUNCIL OF THE CITY OF SA1NT PAUL In the Matter of the Licenses held by James Bailey, Inc., d/b/a CITY' S FINAL ARGiJMENT Arlington Pub for the premises at 721 Payne Avenue, Saint Paul The City, through the Office of License, Inspections and Environmental Protection, seeks adverse action against the licenses held by Arlington Pub for after hours consumption and sale of alcohol to an obviously intoxicated person on January 29, 1999 and sale of alcohol to an obviously intoxicated person on February 4, 1999. The City alleges that on January 29, 1999 at approximately 2:37 a.m. a Saint Paul Police Officer observed an individual walk out of Arlington Pub at 721 Payne Avenue. The person was extremely into�cated and stated to the officer that he had been drinking at the bar, and that it was "last call". He further stated that he had been at the bar drinking after hours on several prior occasions. He was taken to detox, where his blood alcohol registered .20. Sale or consumption of alcohol after hours is a violation of Saint Paul Legislative Code §409.07(a) and (c) and Minn. Stat. § 340A.504. On February 4, 1999, officers were sent to Arlington Pub on a report of a man causing trouble. On arrival they found a man who was extremely intoxicated, passed out at one of the booths. He was transported to detox, where he registered a.25 alcohol concentration. The bartender admitted serving the man, which would be a violation of Minn. Stat. §340A.502. Burden of Proof The CiTy has the burden of proof in this adverse action and must prove its case by a �r�.��1 preponderance of the evidence. In re Kaldahl, 418 N. W.2d 532, 535 (Minn. App. 1988). See, also, Mivu. Rules 1400.7300, subp.5. Under this standard, the City's evidence must lead the �ier of fact to believe that it is more likely than not that the facts are true. If there is the slightest tipping of the scales in favor of the City by credible evidence, then it has proved its case. Tesrimony at the Hearing The City presented the testimony of four witnesses, Kristina Schweinler, a senior licensing inspector from the Office of License, Inspections and Environmental Protection ("LIEP"), and OfFicers Burton, Johnston and L3rbanski, of the Saint Paui Police Department. Ms. Schweinler testified that she reviewed the police reports written by the officers and that she referred the matter to the City Attorney's Office to initiate adverse action because the police reports atleged violations of statutes and ordinances relating to after houts sale or consumption of alcohol, as well as sale of or fiunishing alcohol to obviously intoxicated persons. She fitrther testified that her recommendation for a penalty was to follow the matrix contained in Saint Paul Legislative Code §409.26 for a second offense, because this particulaz establishment had, within the past twelve months, had adverse action for a sale of alcohol to an underage person, also a matrix violation. Officer Burton testified that he is a police officer with the Saint Paul Police Depa_rnnent and that he has patrolled on Payne Avenue for three years. He testified that on January 29, 1999 at approximately 237 a.m., he was in the area backing up officers on another call when he observed an obviously intoxicated man walk out of Arlington Pub. Officer Burton testified that he walked up to the man and asked him if he had been drinking in the baz, and that the man, James Werring, stated, "Yes, it was last call." He also said to the officer that he had been in the bar, drinking after closing, on several prior occasions. The officer then transported Werring to �,�� detox, where his blood alcohol concentration was deternuned to be a.20. Officer Burton also testified that he was in Arlington Pub on Febmary 4, 1999, less than a week later, when police were called because of a man causing trouble. He was present and observed Dwight Dismuke, who appeazed to be passed out in a booth in the baz, and heazd the bartender state that he had served Dismuke at the baz. Officer Urbanski testified that he was on duty on Febniaiy 4, 1999 and was working with Officer Johnston, who was acting as his Field Training Officer. Urbanski had joined the Saint Paul Police Department in September of 1998 although he had priar police experience with the City of North Saint Paul. Officer Urbanksi testified that they were called to Arlington Pub at appro�mately 11:23 p.m. on a person causing trouble. When they arrived they found a man passed out in a booth in the bar. He tried to wake the man for about a minute. Officer Urbanski testified that the man was intoxicated, and that when they took him to detox he had an alcohol concentration of .25. Officer Johnston testified that he was working with Officer Urbanski and that the person in the bar was obviously intoxicated, in that he had problems talking, smelled of alcohol, and could barely stand. He testified that the bartender, Karl Tacheny, said he had served Dismuke one drink and then Dismuke fell off of his bar stool. The licensee presented the testimony of the bar owner, who was not present at the time of the incident, and ttu�ee other witnesses. The owner testified that he has a policy that employees are not to serve anyone who appeazs to be intoxicated nor are they to serve after hours. However, he acknowledged that there aze no formal tra.ining procedures in place. He Yrired Karl Tacheny, a long-time friend of his son, about six months ago. James Werring, the individual involved in the January 29, 1999 incident, testified that he was so intoxicated on the night in quesrion that he does not recall anything. He stated that he had q q.�c�� , no recollection of being in the baz on the night in question, although he did not deny having the conversation that the officer reported. He also testified that he also has no memory of ever being refused service at the baz on any occasion. Thomas Doeppner testified that he was drinking with Werring on the night of January 29, 1999 and that Werring left lus house between 1230 and 12:45. Doeppner lived only a couple of blocks from the baz. The bartender, Kazl Tacheny, testified that he was present at the bar during both incidents. He testified that on January 29, 1999, James Werring came into the baz and asked for a drink, but that he did not serve him because he was obviously intoxicated. However, Tacheny stated that he decided to let Werring stay at the bar because it was pointless to call a cab, because cabs wouldn't come to pick up dnu�k customers, and Tacheny was going to give him a ride home because of the cold. Tacheny testified that he let Werring stay while he closed up but made him go outside while he did the last of the closing for security reasons. When he went outside Werring was gone. Tacheny testified that on February 4, 1999, he was also the bartender. He stated that he did not ca11 the police but was startled when at least six officers burst into the bar and wanted to know what was wrong. He testified that Dismuke entered the bar with another man, that he sold the companion two shots of Christian Brothers, but insisted on ID from both of them. Tacheny testified that Dismuke wasn't stumbling, wasn't showing any signs of being intoxicated and that he had no idea that he was intoxicated. Accarding to his testimony, this was approximately five minutes before the police arrived. Shortly before the police came in, Tacheny testified that he took the drinks away from the two men because the companion began yelling and waving his arxns azound. He testified that Dismuke tripped and fell, hitting his head, before the police arrived. ��.�,��. Argument The City initiated this adverse action based upon two separate police reports of alleged violations of the laws and ordinances relating to sale and service of alcohol, including Muui. Stat. §§ 340A.502 and 340A.504, and Saint Paul Legislative Code §§409.07(a) and (c). The credibility of the witnesses in this matter is instrumental in evaluating the testunony. In evaluating credibility, a fact-finder can look to, among other things, the witnesses': 1) interest or lack of interest in the outcome of the case; 2) their relationship to the parties; 3) their franlaiess and sincerity or lack thereof; and 4) the reasonableness or unreasonableness of their testimony in light of ali the other evidence in the case. Looking first at the testimony by the witnesses for the licensee, it is important to note that Karl Tacheny works for the licensee, and would be subject to criminal prosecution for the incidents about which he testified because service of alcohol after 1:00 a.m. and to an obviously intoxicated person aze both criminal violations. He has a work relationship with the licensee, as weli as being a lifelong friend of the licensee's son. Mr. Werring claims not to know what happened on January 29, 1999, although at the tnne he informed the officer that he had been drinking in the bar after hours, and that he had done so several times in the past. This last statement belies the attempts by the licensee's attomey to azgue that Werring was confused about the nature of the question Officer Burton was asking. While he may have been confused about what rime it was and whether he had just finished drinking or had been drinking before 1:00 a.m., a statement that he drank in the baz on other occasions after closing seems pretty straightforwazd, and lends credence to the argument that he understood that he was being asked about drinking after hours on this occasion. Mr. Doeppner's �� /�� testimony really added nothing to either side - without expert testimony as to alcohol absorption rates and burn-off, it isn't possible to know Werring's likely alcohol concentration after 18 beers over a six hour period or how that relates to testing at a.20 at least two hours after leaving Deoppner's house. Mr. Bailey was not present at the time of either of the incidents, but cleazly has an interest in the outcome. He admits having no formal traiuing process for his employees and cleazly blames the City for his prior violation of selling alcohol to an underage person. On the other hand, the police officers have no known interest in this bar, nor aze they familiar with the license holder. Officer Johnston is an officer with five years experience who is trusted by the Saint Paul Police Deparhnent as a Field Training Officer for new officers. Officer Burton has three years experience with the Saint Paul Police Department and priar experience in California. Officer Urbanski is a fairly new officer to Saint Paul, but has experience in North Saint Paul. Other than a general statement from Mr. Bailey that he believes that the Police Department and the Licensing Office are out to get him, there is nothing in the record to support that the officers or the licensing personnel haue any interest in this bar. Looking next at the reasonableness of the testimony given by Mr. Tacheny regarding the two incidents, it is interesting to note that he stated that he did not call a cab for Mr. Wemng when he entered and was intoxicated because he did not think that a cab would come. He later tesrified that he often calls a cab for an intoxicated person and that they do pick them up from the baz. Furthermore, Mr. Bailey testified that it would not be unusual to have a drunlc person waiting in the bar for a cab to come because they call cabs for them. Mr. Tacheny also chose not to call the police to take Mr. Werring to detox. According to his story, he elected to allow Mr. Werring to wait for him to close up ( a two hour period) so that he could drive him home. Yet when he was ready to do his final closing up, he did not send Werring to wait in his car, nor did aq'�� he close up and leave with him, but sent him outside. Is it reasonable to believe that Mr. Tacheny really had Werring wait for almost two hours rather than simply calling him a cab when he first came in or calling the police because he was so intoxicated? Less than a week later, according to Mr. Tacheny, he served Mr. Dismuke a shot of Chrisrian Brothers Brandy without realizing that Dismuke was into�cated. Tacheny testified that Dismuke and his companion were not in the bar long before the police came in, and the officers testified that Dismuke was obviously intoxicated, slurriug his speech, unable to stand up, smelling of alcohol. Within another five minutes or so they took him to detox, where he was tested and had an alcohol concentration of .25, significantly higher than Werring's had been the week before. Nonetheless, Tacheny testified that he did not realize that Mr. Dismuke was intoxicated. Each of the officers testified that there were signs of obvious intoxication being e�ibited by Dismuke. Tacheny would have you believe that only five to ten minutes eazlier, these same signs (lack of balance, slurred speech, odor of alcohol) were all absent. Is it reasonable to believe that Dismuke only began to show the signs of obvious intoxication after the police arrived or is it more likely that Tacheny ignored the fact that he was intoxicated and served Dismuke? Officer Burton clearly believed that James Werring, although intoxicated, was able to understand and reply to his questions on January 29, 1999, and he testified that he believed that Werring understood that he was asking whether he had just finished drinking at Arlington Pub when he walked outside. Werring's statement that he had been there before, drinking after hours, confirms that Werring did understand the nature of the question Officer Burton was asking. He cleazly related the questions being asked with drinking after hours because of his statement that he had been there drinking after hours before. It is reasonable to believe that Werring had been q�'�� drinking at Arlington Pub after hours on January 29, 1999 and that he had been served despite his level of intoxicarion. Mr. Tacheny essentially admitted that he served alcohoi to Dismuke on February 4, 1999 when he admitted that he sold the two shots of Christian Brothers Brandy to Dismuke's companion. Mivu. Stat. §340A.502 states: 340A.502. Sales to obviously intogicated persons No person may sell, give, furnish, or in any way procure for another alcoholic beverages for the use of an obviously intoxicated person. Mr. Tacheny does not escape responsibility for selling the aicohol simply because it was purchased by the companion. In fact, his testimony that he requested ID from both parties aclrnowledges that he realized he was fiunishing the alcohol to Dismuke, as well as to the companion. The question, then, is whether his testimony that he did not believe Dismuke to be obviously intoxicated is reasonable. Three police officers tesrified that when they arrived, Dismuke was obviously intoxicated - he had troubie speaking, smelled of alcohol and had trouble standing. This was only five minutes after Tacheny served the alcohol to the two men. Within another five to ten minutes, Dismuke was taken to detox, where kus alcohol concentrafion was determined to be .25. It is so unlikely as to be incredible that Dismuke e�ibited none of the signs so appazent to the officers when Tacheny served the brandy to the two men. Conclusion The credible evidence presented by the witnesses far the City supports a finding that on January 29, 1999 at approximately 237 a.m., an hour and a half past closing time, a Saint Paul Police officer found James Werring just leaving Arlington Pub, where he stated that he had been drinking, and that on this occasion and several others that he was able to drink after �� hours in violation of Saint Paul Legislative Code §§ 409.07(a) and (c) and Minn. Stat. §340A.504, subd. 2.. Furthermore, given the individual's intoxicated state, service to him was a violation of Mum. Stat. §340A.502, prohibiting sale of alcohol to an obviously intoxicated person. Less than a week later, three police officers entered the baz and found an obviously intoxicated person sitting slumped in one of the booths, and the bartender admitted that before their arrival he had sold the person a shot of Chrisrian Brothers Brandy. The officers a11 testified that the individual was obviousiy intoxicated, which was confirmed by his alcohol concentration of .25, which was determined shortly after officers took him to detox. The presumptive penalty far a violation of after hours sale of alcohol is established by Saint Paul Legislative Code §409.26 to be a six-day license suspension when the violation is a second appearance in front of Council within a twelve month period. The penalty for the after hours consuxnption or display of alcohol is a four-day license suspension for a second violation, and the presumptive penalty for a violation of sale to an obviously intoxicated person as a second violation is established by Saint Paul Legislative Code §409.26 to be a fine of $1,000. (The fine amount is based upon the seating capacity of an establishment and the seating establishment of Arlington Pub is 0-149. The fact that this is a second violation means that the fine amount is doubled.) Licensee has not contested that this woultl be a second violation within a twelve month period, as set forth in Saint Paul Legislative Code §409.26(e)(1). However, the current situation alleges multiple violations, and Saint Paul Legislative Code §409.26(c) sets forth the procedure by which the penalties are combined and the Council may depart upward. Based upon the foregoing, the City respectfixlly requests that a finding be made that a violation ofMinn. Stat. §§340A.502 and 340A.504 and Saint Paul Legislative Code §§409.07(a) and(c) occurred on January 29, 1999 and that a violafion of Minn. Stat. §340A.502 occurred on q�'�� February 4, 1999 and that a multiple day closure or a combination of closure and fine be the appropriate penalty. Dated: May 18, 1999 � /:. . „�„�,� �� L, �� Virginia D1 Palmer (#128995) Assistant City Attorney 400 City Hall 15 W. Kellogg Boulevard Saint Paul, MN 55102 (651) 266-8710 /^t�/�T� f § 40925 LEGISLATIVE CODE ence for at least three (3) yeats, or a political committee registered under Minnesota Statutes, Section 10A.14, may obtain an on-sale license to sell wine and strong beer not e%ceeding fourteen (14) percent alcohol by volume for consumption on the licensed premises only. The fee for such li- cense shall be established by ordinance as pro- vided in section 310.09(b) ofthe Legislative Code, and such license may authorize the on-sale of wine for not more than four (4) consecutive days. The city shall not authorize more than three (3) four-day, four (4) three-day, six (6) two-day or twelve (12) one-day temporary licenses, in any combination not to egceed twelve (12) days per yeaz for the sale of wine to any one (1) location within the city for a twelve-month period. The city may not issue mor2 than one (1) such license to any one (1) organization or politieal committee, or any one (1) location, within a thirty-day period unless the licenses are issued in connection with an event officially designated a community festi- val by the municipality. (b) Liquor Zicenses. Notwithstanding any other provision of this chapter, a club or charitable, religious or other nonprofit organizatiun in exist- ence for at least three (3) years may obtain an on-sale license to sell intosicating liquor for con- sumption on the licensed premises only and in connection with a social event within the city sponsored by the licensee. The license may pra vide that the licensee may contract for into�cat- ing liquor catering ser�ices with the holder of a full yeaz on-sale intoxicating liquor licensa issued by the city. 'I'he fee for such license shall be forty-one dollars ($41.00) per day, and such li- cense shail not authorize the on-sale of intoaucat- ing liquor for more than four (4) consecutive days. The city shall not authorize more than three (3) four-day, four (4) three-day, siY (6) two-day, or twelve (12) one-day temporary licenses, in any combination not to exceed twelve (12) days per year for the sale of into�cicating liquor to any one (1) location within the city for a twelve-month period. The city may not issue more than one (1) such license to any one (1) organization or politi- cal committee, or any one (1) location, within a thirty-day period unless the licenses are issued in connection with an event officially designated a community festival by the municipality. (c) Apptic¢tion. Application for such tempo- rary licenses shall be made on forms provided by the inspector and shall contain such information as specified by the inspector, ;ncb�ding the follow- mg_ (1) The name, address and purpose of the organization, together with the names and addresses of its officers, and evidence of nonprofit status or of its status as a club under sect�on 409.02 above. (2) The purpose for which the temporary li- cense is sought, together with the place, dates and hours during which wine or intoxicating liquor will be sold. (3) Consent of the owner or manager of the premises or person or group with lawful responsibility for the premises. (4) Evidence that the manager or director has received alcohol awareness training provided by a bona fide instructor oz the city. (d) Applic¢tion of other prouisions of this ch¢p- ter. No other provisions of this chapter shall apply to licenses granted under this section, except sections 409.06, 409.07, 409.08 (except clauses (11) and (12)), and sections 409.09 through 409.14. (e) Cl¢ss ZI Zicense. Notwithstanding any other provision of law to the contrary, the temgorary wine and liquor licenses provided in this section shall be administered as a Class II license and subject to the provisions of these chapters govem- ing Class II licenses. The inspector shall make all referrals as provided by section 310.Q3, but the director may require the inspector to issue such license before receiving any recommendations on the application thereof if necessary to issue such license on a timely basis. (Ord. No. 17459, § 1, 5-28-87; Ord. ti�o. 17569, § 4, 6-7-88; Ord. No. 17853, § 1, 7-18-91; C.F. 1Vo. 94-1561, § 2, 11-16-94; C.E No. 97-566, § 1, 6-4-97; C.F. No. 98-550, § 1, 7-22-98) Sec. 40926. Intoxicating liquor, noninto�- cating malt liquor, presumptive penalties. (a) Purpose. The purpose of this section is to establish a standard by which the city council determines the length of license suspensions and Supp. \o. 40 2196 . the propriety of revocations, and shall apply to all on-sale and off-sale licensed premises for both intofficating liquor under this chapter and nonin- to�cating liquor under Chapter 410. These pen- alties aze presumed to be appropriate for every case; however the council may deviate therefrom in an individual case where the council finds and determines that there exist substantial and com- pelling reasons making it more appropriate to do �pe of Volation (1) Commission of a felony related to the licensed activity. (2) Sale of alcohol beverages while license is under suspension. (3) Sale of alcoholic beverages to underage person. (4) Sale of alcoholic beverage to intoxicated person. (5) After hours sale of alcoholic beverages. (6) After hours display or consumption of alcoholic beverage. (7) Refusal to allow city inspectors or police admission to inspect premises. (S) Illegal gambling on premises. (9) Failure to take reasonable steps to stop person from leaving premi�es with alco- holic beverage. (10) Failure to make application for license renewal prior to license expiration date. (11) Sale of intoxicating liquor where only license is for nonintoxicating liquor. (12) Failure to comply with statutory, and ordinance requirements for liability in- surance. For those violations which occur in on-sale intoxicating liquor estahlishments listed above in numbers (3), (4), (5), (6), (8), (9), (10) and (11), Supp. No. 40 aa��`�� LICENSES § 409.26 so. When deviating from these standazds, the council shall provide written reasons that specify why the penalty selected was more appropriate. (b) Presumptiae penalties for uiolations. Ad- verse penalties for convictions or violations shall be presumed as follows (unless specified, num- bers below indicate consecutive days' suspension): Appe¢rance Ist 2nd 3rd 4th Revocation NA NA Revocation NA NA Fine Fine Fine Fine 5 Fine Fine Fine Fine 10 NA NA Fine Up to Revocation 18 Fine ITp to Revocation 18 6 18 Revocation 4 12 Revocation 15 Revo- NA cation 6 18 Revocation 4 12 Revocation 6 18 Revocation 6 18 Revocation R e - NA NA voca- tion which would be a first appeazance not involving multiple violations, a fine shall be imposed accord- ing tA the following schedule. For those violations 2197 �� § 40926 LEGISL.9TIVE CODE which occur in on-sale intoxicating liquor estab- lishments listed above in numbers (3) and (4), �vhich would be a second appearance notinvolv- ing multiple violations, the fine amounts set forth below shall be doubled. Seating capacity 0-149. . . _ . . .. . $ 500.00 Seating capacity 150 and over ... 1,000.00 For those violations which occur in off-sale into�cating liquor esta6lishments listed ahove in numbers (3), (4), (5), (6), (8), (9), (10) and (11), which would be a first appearance not involving multiple violations, a fine shall be imposed accord- ing to the following schedule, based on the square footage of the retail azea of the establishment. For those violations which occur in off-sale intoacicat- ing liquor establishments listed above in numbers (3) and (4), which would be a second appeazance not involving multiple violations, the fine amounts set forth below shall be doubled. 5,000 square feet or less . . . . . . . . $ 500.00 5,001 squaze feet or more ....... 1,000.00 Alicensee who would be making a first appear- ance before the council may elect to pay the fine to the Office of License, Inspections and Environ- mental Protection without an appearance before the council, unless the notice of violation has indicated that a hearing is required because of circumstances which may warrant deviation from the presumptive penalty. Payment of the recem- mended fuxe will be considered to be a waiver of the hearing to which the licensee is entitled, and shall be considered an "appearance" for the pur- pose of determining presumptive penalties for subsequent violations. (c) Multiple uiol¢tions. At a licensee's first appearance before the city council, the council shall consider and act upon all the violations that have been alleged and/or incorporated in the notices sent to the licensee under the administra- tive procedures act up to and including the formal notice of hearing. The counc9l in that case shall consider the presumptive penalty for each such violation under the "ls Appearance" column in paragraph (b) above. The occurrence of multiple violations shall be grounds for departure from such penalties in the council's discretion. �olations occuning after the date of the notice of hearing that aze brought to the attention of the city attorney prior to the hearing date before an administrative law judge (or before the council in an uncontested facts hearing) may be added to the notice(s) by stipulation if the licensee admits to the facts, and shall in that case be treated as though part of the "ls` Appeazance." In all other cases, violations occurring after the date of the formal notice of hearing shall be the subject of a separate proceeding and dealt with as a"2aa Appearance" before the council. The same procedures shall apply to a second, third or fourth appeazance before the council. (d) Subsequent appear¢nces. Upon a seeond, third or fourth appearance before the council by a garticulaz licensee, the council shall impose the presumptive penalty for the violation or viola- tions giving rise to the subsequent appearance without regard to the particular violation or vio- lations that were the subject of the first or prior appearance. (e) Comput¢tion of time: (1) If a licensee appears before the council for any violation in paragraph (b) where that violation has occurred within twelve (12) calendar months after the first appeaz- ance of the same licensee for a violation listed in paragraph (b) above, the current appeazance shall be treated as a second appearance for the purpose of detezmin- ing the presumptive penalty. (2) If a licensee has appeared before the coun- cil on two (2) previous occasions, both for violations listed in pazagraph (b) above, and if said licensee again appears before the council for a violation listed in said paragraph (b), and if the current violation occurred within eighteen (18) calendaz months of the violation that gave rise to the first appaarance before the council, then the current appearance shall be treated as a third appeazance for the purpose of determining presumptive pen- �tty. (3) If a licensee has appeared before the coun- cil on three (3) previous occasions, each Supp. No. 40 2198 q`�'�`�� LICENSES for violation listed in paragraph (b) above, and if said licensee again appears before the council for a violation listed in para- graph (b) above, and if the current viola- tion occuned cvithin thitty (30) calendaz months of the violation that gave rise to the first appeazance, then the current appeazance shall be treated as a fourth appeazance for the purpose of determin- ing the presumptive penalty. (4) Any appearance not covered by subsec- tions (1), (2) or (3) above shall be treated as a first appearance. In case of multiple violations in any appearance, the date to be used to measure whether twelve (12), eighteen Q8), or thirty (30) months have elapsed shall be the date of the violation last in time at the first appeazance, and the date of the violation first in time at any subsequent appeazance. (fl Other pen¢lties. Nothing in this section shall restrict or 1'unit the authority of the council to suspend up to sixty (60) days, revoke the license, or impose a civil fine not to exceed two thousand dollars ($2,000.00), to impose condi- tions or take any other adverse action in accor- dance with law, provided, that the license holder has been afforded an opportunity for a hearing in the manner provided for in section 310.05 of this Code. (g} Effect of responsible business pr¢ctices in determining pen¢Zty. In determining the appropri- ate penalty, the council may, in its discretion, consider evidence submitted to it in the case of uncontested adverse actions or submitted to a hearing exaininer in a contested hearing upon which findings af fact have been made that a licensee has £ollowed or is likely to follow in the future responsible business practices in regard to sales to intoxicated persons and sales to minors. (1) For the purposes of service to intoxicated persons, evidence of responsible business practices may include, but is not lunited to, those policies, procedures and actions that are implemented at time of service and that: a. Encourage persons not to become into�cated if they consume alcoholic beverages on the defendant's prem- ises; §40926 b. Promote availability of nonalcoholic beverages and food; c. Promote safe transportation altema- tives other than driving �vhile intox- icated; d. Prohibit employees and agents of defendant from consuming alcoholic beverages while acting in their ca- pacity as employees or agents; e. Estabiish promotions and mazket- ing efforts that publicize responsible business practices to the defendant's customers and community; £ Implement comprehensive training procedures; g. Maintain an adequate, trained num- ber of employees and agents for the type and size of defendant's busi- ness; h. Establish a standardized method for hiring qualified employees; i. Reprimand employees who violate employer policies and procedures; and j. Show that the licensee has enrolled in recognized courses providingtrain- ing to self and one (1) or more em- ployees of the licensed establish- ment in regard to standards for responsible liquor service. (2) For the purposes of service to minors, evidence ofresponsible business practices may include, but is not lunited to, those listed in subsection (1) and the following: a. Management policies that are imple- mented at the time of service and that ensure the egamination of proof of identification (as established by state law) for all persons seeking service of alcoholic beverages who may reasonably be suspected to be minors; b. Comprehensive training of employ- ees who are responsible for such eazamination regarding the detection of false or altered identification; and c. Enrollment by the licensee in zecog- nized courses providing training to Supp. No. 40 219$.1 ��i�� § 409.26 LEGISLATIVE CODE self and one (1) or more employees of the licensed establishment in regazd to standards for responsible liquor service. (Ord. No. 17556, § 1, 4-28-86; Ord. No. 17657, § 14, 6-8-89; Ord. No. 17675, § 1, 8-22-89; Ord. No. 17694, § 2, 11-7-89; Ord. No. 17756, § 1, 8-7-90; Ord. No. 17924, §§ 2, 3, 5-7-92; C.F. No. 92-1929, § 1, 2-9-93; C.F. No. 97-1445, § 1, 12-30-97; C.F. Iso. 98-866, § 1, 11-4-98) Chapter 410. Noninto�cating Malt Liquor�` Sec. 410.01. License required; definitions; ex- ceptions. (a) No person shall sell nonintoxicating malt liquors at retail in Saint Paul without a license. (b) On-sale licenses shall permit the licensee for the sale of said nonintoxicating malt liquors to sell such for consumption on the premises. On- sale licenses shall be granted only to restaurants, hotels, bona fide clubs, establishments for the exclusive sale of nonintoaucating malt beverages and establishments licensed for the exclusive sale of intoxicating liquors. The term "bona fide clubs" shall include private clubs licensed under former Chapter 404 of this Code so long as they meet the requuements of Minnesota Statutes, Section 340A.101, subsection 7. (c) Off-sale licenses shall permit the licensee of such nonintoxicating malt liquors to sell same in original packages for consumption off the prem- ises only. td) Nothing herein contained shall be con- strued to prohibit the sale and delivery in original packages directly to the consumer by the manu- facturer or distributor of noninto�cating malt liquors. (e) No off-sale license shall be issued for any place where noninioxicating malt beverages shall be sold for consumption on the premises. •Cross references—Liquor and beer regulations gener- ally, 2Stle XXN; intoxicating ]iquor, Ch. 409; use of beer and into�cating liquor protubited in motion picture drice-in the- atres, § 416.06(b). (fl ��Nonintoxicating malt liquor" is any fer- mented malt liquor, potable as a beverage, con- taixung not less than one-half of one percent (�/z of 190) alcohol by volume nor more than three and tcvo-tenths (3.2) percent alcohol by weight. (Code 1956, §§ 310.01, 310.17, 31020; Ord. No. 17676, § 8, 8-24-89) Sec. 410.02. Fees. Before the filing of an application for either of the licenses hereinbefore provided for, tne appli- cant shall deposit with the license inspector the sum of two hundred fifty dollars ($250.00) if the application is for an on-sale license, and the sum of fifty dollars (�50.00) if the application is for an off-sale license, and the inspector shall thereupon deliver to such applicant duplicate receipts there- for, containing a statement of the purpose for which such deposit was made, and one (1) of said receipts shall be attached to and filed with said application. (Code 1956, § 310.03; Ord. No. 16843, 10-20-81) Sec. 410.03. Licensing requirements. (a) Applic¢tion. Any person desiring either of the licenses as hereinbefore described shall first make an application therefor to the council of the City of Saint Paul by filing with the inspector of said city for presentation by him to the council of an application in writing therefor, which said application shallset forth with reasenable accu- racy the name and place of residence of the applicant; the exact location of the place at which the applicant proposes to carry on the business of selling nonintozicating malt liquors; and whether or not he has at any time previous to the date thereof been engaged in said business or in the business of selling foodstuffs in the City of Saint Paul, and if so, when and where. Said application shall be signed by the applicant in person or by an officer of the club seeking said license or by an officer of the corporation seeking said license, and when received by the inspector shall be by him placed on file, and the name of the applicant shall be by him registered in a book of registration to be kept in the office of said inspector for that pur- pose; procided, hocvever, that said inspector shall Supp. No. 40 21982 aoo cr� xatt & counxo�e 15 W. Kellogg Boulevard Sairst Paul, MN 55102 � CITY OF SAINT PAUL OFFICE OF THE CITY AITORNEY -1 .<<<. . ....<< � � The Honorable Beverly Jones Heydinger Administrative Law Judge Office of Administrative Hearings 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, MN 55401-2138 ---_� � s OFFICE OF ADMINISTRATIVE HEARINGS FOR THE COUNCIL OF THE CITY OF SAINT PAUL In Re T`he Licenses He1d By James Bailey, Inc. d/b/a Arlina on Pub CITY'S PROPOSED EXHIBTTS May 4, 1999 �� TO: Judge George A. Beck, Admnustrarive Law Judge, O�ce of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401 The following consfitutes a list of the City's proposed eafhibits for fhe Administrafive Hearing on May 4, 1999. Exhibit No. E�. No. 1 E�. No. 2 E�. No. 3 E�. No. 4 Exh. No. 5 Description Police Report CN 99-013-Ob3, dated January 29, 1999 (1 p.); Police Report CN 99-016-294, dated February 4, 1999 (1 p.); License Information Report, dated Februuy 12, 1999 (12 pp.); Notice of Violation, dated February 18, 1999, with �davit of Service � PP•)> Notice of Hearing, dated March 1&, 1999, with Affidauit of Service (4 pp.}. �c�—Y' � q �,1,�1 Also attached please find courtesy copies of appiicable St. Paul City ordinances: St. Paul Legislative Code § 310.05 St. Paul Legislative Code § 310.06 St. Paul Legislative Code § 310.17 St. Paul Legislative Code § 409.07 Minn. Stat. §340A.502 Minn. Stat. §340A.504 Respectfully submitted this 4th day of May, 1999. -- 7./ o,..�...� 1 t�c��, R Virginia Palmer Assistant City Attorney Office of The City Attorney 400 City Hall 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 (612)266-8710 Pa9e �of�_ ST. PAUL POLICE DEPARTMENT ��gt � D� GENERAL REPOpT �•v r� 3 Occurrad � At Q BstwNn: �k � � � �,�o - ra �o s�e�e: "_ �A hrs, on and hrs. on Crim� I.pb � i�¢� Property Room SQD 3(`1 S L��z� W�=Lc= o� �ou �A7�6� d1:��c1� A� ad��ousC� �7ox�c�TE�? W1�•• wAZ� ov� c� �ATLE�'� �1,� � - o-� ; t�� coK.�E oE �A �ti� � ��.�-�,� I�RNA f} o a57 f�.w�. oa )-a 9- t� s s , v��z� �� (� w�: s z0'� As: %JE��s,.�(p �Av�ES ��.o°� )-31 , 4�3��, 51 . �t.�R�Y ;'�ACC.�. .-� �5�e1? /-1 rv� � � � WA S � ��,��,1� � S-� i H� l3�� AT -T� -� 5 Ts,�.� A�� !� sAs�j ' Y�s,r wAS L�+sr�ACC.: � O�czr�E� - Ta Ti..A�s�o� �.J��S,�� Tp �t To�. 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' m . �� AN N � � A 7� tC �3 � m � � � � � � � � � � � , � 0 3 n m m m � 0 D r , � � _ N N 7 � O z 3 � T � A m v 0 � v m m A > N O M ..ti N OFFICE ^F THE CITY ATTORNEY C(m>on i brnson, Jc. Cip� drtorney� CITY OF SAINT PAUL Form Coleman. dlapor February 18, 1499 Owner/Mana�er Arlington Pub 721 Payne Avenue Saint Paul, Minnesota �S101 cir;tDirrsron aonc;� xou 15 ICest f:e(logg Blvd. Sainr Paul dlinnesota 5570? NOTICE OF VIOLATION RE: All licenses held by James Bailey, Inc. d/b/a Arlington Pub for the premises located at 721 Payne Ave. in St. Paul License ID No.:16443 Dear Sir/Madam: ��Z�� The D'uector of the O�ce of License, Inspections and Envizonmental Protection will recommend that adverse action be taken against your licenses based on the following information: On January 29,1999, at approaimately 2:37 a.m. a Saint Paul Police Officer observed an individual walk out of Arlington Pub, located at 721 Payne Avenue. The person appeared to be extremely intoxicated. The officer asked if he had been drinking at the bar, and the individual responded that he had been drinking there and it was "last call". The individual was transported to detox, where he regisfered a.20 alcohol concentration. This conduct is in violation of Minn. Stat. §340A.504, subd. 2 and Saint Paul Legislative Code §409.07(a), prohibifing the sale of alcohol after 1:00 am.; Minn, Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person; and Saint Paul Legislative Code §409.07(c), prohibiting the consumption or display of alcohol at any time when the sale is not permitted. On February 4,1999, at approximately 12:23 a.m., tt��o police officers were sent to Arlington Pub on a report of a man inside causing problems. On arrival, they observed an individual �rho appeared to be very intoxicated. They spoke to the bartender, whd admitted that he had served the individual a drink. This individual was transported to defox, where he registered a.25 alcohol concentration. This is a violation of Minn. Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person. r E� Telephone: 651166-8710 Fncsimile: 65! ?98-56I9 -�'__!__ ❑ _ James Bailey, Inc. d/b/a Arlington Pub _ City's Exh. No. 4 Page 2 Arlington Pub February 18, 1999 � 4�� Since this incident occurred ��ithin twel� months of your prez violation, this incident �i constitute a"2nd Appearance" for the purpose of determining the appropriate penalty. In addition, since this incident actualiy invol��ed multiple violations, the City Council may, at its discretion, depart from the presumptive penalties identified in Saint Paul Legislative Code §409.26. The licensin� office w111 recommend a ten day suspension of all licenses. If you do not dispute the above facts, but w�ish to have a public hearin� before the Saint Paul City Council, you will need to send me a letter �� a statement admitting the violations and requesting a hearing by Monday, Mazch 1, 1999. The matter �ill then be scheduled before the City Council for a public hearing to determine what penalty, if any, to impose. You will have an opportunity to appear before the Council and make a statement on your own behalf as to the penalty to be imposed. If you do dispute the above facts, a hearing w be scheduled before an Administrative Law Judge. At that hearing both you and the City will be able to appear and present witnesses, evidence, and cross-examine the other's c�ztnesses. The St. Paul City Council wzll ultimately decide the case. Please let me know in writing no later than Monday, Mazch 1, 1999 how you wish to proceed. Tf you have not contacted me by Monday, March 1,1999, I will assume that you are not contesring the facts and will schedule this matter for a hearing before the City Council. If you have any questions, feel free to contact me at 266-8710. Sincerely, ,. _��ucw� ��c.��-t/� Virginia D. Palmer Assistant City Attomey cc: Robert Kessler, D'uector of LIEP Christine Rozek, Deputy Director of LIEP Bruce Sylvester, Community Organizer, Payne Phalen Dist. 5 Planning Council, 1014 Payne Ave., St. Paui, MN 5� 101 �y/ l in � � w STATE OF MINNESOTA ) ) SS. COUNTY OF RAMSEY AFgIDAV2T OF SERVICE BY MAIL JOANNE G. CLEMENTS, being Pirst duly sworn, deposes and says that on February 19, 1999, she served the attached NOTICE OF VIOLATION on the following named person by placing a true and correct copy thereof in an envelope addressed as follows: Owner/Manager Arlington Puh 721 Payne Avenue St. Paul, MN. 55101 (which is the last known address of said person) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 19th day of Febr�ry, 1999. Notary PETER P.PANGBORN NOTAAY PUBLIC b�. E�tr&v Jan. 31. 200( OFFICE O� "'88 CITY ATTORNEY QaytonM. ,inson,lr.,CiryAtforney CITY OF SAINT PAUL �vi[Division Norm Coleman, Mayor 400 Gry Ha!! IS WesY Ke[loggBlvd SaintPau! Minnesota5510? Mazch 18, 1999 NOTICE OF HEARING Mazk Vaught Attorney at Law Six West Fifth Street, Suite 700 Saint Paul, Minnesota 55102 q q,�� Telephnne: 651266-87Z0 F¢csimile: 65l 298-5619 RE: All licenses held by James Bailey, Inc. d/b(a Arlington Pub a/k/a Bailey's Baz for the gremises located at 721 Payne Ave. in St. Paul License ID No.: 16443 Our File Number: G99-0056 Deaz Mr. Vaught: � Please take notice that a hearing wiil be held at the followin� time, date and place conceming all licenses for the premises stated above: Date: Tuesday, May 4,1999 Time: 9:30 a.m. Place: Room 41 St. Paul City Hall 15 W. I{ellogg Blvd. St. Paul, MN. 55102 The hearing will be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: Name: George A. Beck Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, iVl�i T. 55�01 Telephone: 612-341-7601 J � James Bailey, Inc. d/b/a Arli City's Exh. No. 5 � �� Pub — �� The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse action agauist such licenses, under Chapter 310, inciuding sections 310.05 and 314.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non- intoxicatin� liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penalries or conditions. Evidence will be presented to the jud�e which may lead to adverse action against all the licenses you hold at the above premises as follows: On January 29, 1999, at approximately 2:37 a.m. a Saint Paut Police Officer observed an individuai walk ont of Arlinb on Pub, located at 721 Payne Avenue. The person appeared to be extremely intoxicated. The officer asked if he had been drinking at the bar, and the individual responded that he had been drinking there and it �vas "last call". The individual was transported to detox, where he registered a.20 alcohol concentration. This conduct is in violation of Minn. Stat. §340A.504, subd. 2 and 5aint Paul Lepislative Code §409.07(a), prohibiting the sale of alcohoi after �:00 a.m.; Minn. Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person; and Saint Paul Legislative Code §409.07(c), prohibiting the consumprion or display of alcohol at any time when the sale is not permitted. On February 4,1999, at approximately 12:23 a.m., two police officers were sent to Arlington Pub on a report of a man inside causing problems. On arrival, they observed an individual who appeared to be very intoxicated. They spoke to the bartender, who admitted that he had served the individual a drink. This individual was transported to detos, tvhere he re� stered a.25 alcohol concentration. This is a violation of Minn. Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person. The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrative La�v Judge will have all parties identify themselves for the record. The City will then present its witnesses and evidence each of whom the licensee or attomey may cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the City's attomey may cross-examine. The Administrative Law Tudge may in addition hear relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceedin�; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concludine azguments may be made by the parties. Followin� the hearing, the Judse will prepaze Findings of Fact, Conclusions of Law, and a specific recommendation for action to be taken by the City Council. Notice of Hearing = Page 2 �c�.��► You should brina to the hearing all documents, records and witnesses you will or may need to support your position. Subpoenas may be available to compel the attendance of witnesses or the production of documents in confomuty with Minnesota Ru1es, part 140�_7�00. If a stigulation or agreement can be reached as to the facts, that stipulation will be presented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. If the Iicensee or his representative faiis to appeaz at the hearin" their ability to challenge the allegations will be forfeited and the allegarions against them which have been stated earlier in this notice may be taken as true. If non-public data is received into evidence at the hearing, it may become public unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. If you have any questions, you can call me at 266-8710. Very tnxly yours, �/� aC�� Virginia D. Palmer Assistant City Attorney cc: Nancy Thomas, Office of Adminisuative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, S10 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Bruce Sylvester, Community Organizer, Payne Phalen Dist. 5 Plauning Council, 1014 Payne Ave., St. Paul, NN 5� 101 ?iotice of Aearing -� Page 3 G`�"�� STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY AFFIDAVIT OF 5ERVICE BY MAIL JOANNE G. CLEMENTS, being £irst duly sworn, deposes and says that on March 19, 1999, she served the attached NOTICE OF HEARING on the following named attomey by placing a true and correct copy thereof in an envelope addressed as follows: Mr. Mark Vaught Attorney at Law Six West Fifth Street, Suite 700 St. Paul, MN. 55102 (which is the last known address of said attorney) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. �� _—.,� Subscribed and sworn to before me this 19th dav of�FiazEi� 1999 . .�y = " �1 April 30, 1999 STATE OF MIN1�iESOTA OFFICE OF ADMIPIISTRATLVE HEARINGS 100 Washington Square, Suite 170U 100 Washington Avenue South Minneapol'�s, Minnesota 55401-2138 VIA FAX AND MA1L Virginia D. Palmer Ass+stant Gity Attorney 400 City Half 15 West Kellogg Boutevard St. Paul, Minnesota 55102 FAX: (651) 298-5619 Mark Vaught Attomey at Law Six West Fifth Street, Suite 70p St. Paul, Minnesota 55102 FAX: (651) 224-8328 q�'�'�� RE: In the Matter of the Licenses Heid by James Bailey, fnc., d/b/a Arlington Pub a/k/a Bailey's Bar for the Premises Located at 721 Payne Avenue, St. Paui, Minnesota; OAH Docket No. 1-2111- 12155-3. Dear Counsel: Due to a conflict in my schedule, the above matter wi11 be heard by Administrative Law Judge Beverly Jones Heydinger. Her telephone number is (612) 341-7606. The time, date and piace of the hearing remain the same. GAS:ic cc: Docket Clerk Sincer ly, �/�`°'� ( "`"� . ` -- �-1 � GEORGE A. BECK Administrative Law Judge Telephone: 612/341-7601 Providiog �mpaNal Heanngs for Government and Citizens An Equai Opportuniry Employer Administrative Law Section & Administrative Services (6'12) 34b7600 � TDD No. (612) 3A1-7346 � Fax No. (612} 349-2665 r - it 1 _ �* -V _:�� = `� :<�1=� y:� �C�-� t� � STATE OF MINNESOTA OFFICE OF ADMII�iISTRATIVE f�ARII�TGS HEARING SLTBPOENA TO: Police Officer Sean Burton St. Paul Police Department 100 East 11 Street St. Paul, Minnesota 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Administrative Law Judge George A. Beck of the Oifice of Administrative Hearings of the State of Minnesota, at St. Paul City Hall, Room 41, 15 West Kellogg Boulevard, in the City of St. Paul, Ramsey County, Minnesota, on the 4th day of May, 1999 at 9:3a o'clock in the forenoon, to appear as a witness in the matter of Licenses held by James Baily, Inc. d/b/a Arlinaton Pub a/k!a Sailey's Bar for the Premises located at 721 Payne Avenue, St. Paul, Minnesota: OAH Docket No. 1-2111-12155-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chiefi A inistrative Law Judge, at Minneapolis, Minnesota this 30th day of Ap il, 999. �1,... t � , � r C�`�l�l-�i KE N TH A. NICKOLAI / �, Chief dministrative Law Judge �`"1 612/341-7600 Subpoena requested by: Virginia Palmer, (651) 266-8710 � �,� �� . . �� . • �� .�_._ y��r-�_��'_ • • `1 1 ., � ..� � _-�'��- y'` � ' � , - TO: Police Officer Jason Urbanski St. Paul Police Department 100 East 11�' Street St. Paul, Minnesota 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Adm+nistrative Law Judge George A. Beck of the O�ce of Administrative Hearings ofi the State of Minnesota, at St. Paul City Hall, Room 41, 15 West Kellogg Boulevard, in the City of St. Paul, Ramsey County, Minnesota, on the 4th day of May, 1999 at 9:30 o'ciock in the forenoon, to appear as a witness in the matter of Licenses held b r�James Bailey Inc. d/b!a Arlinqton Pub a/k/a Bailev's Bar for the Premises located at 721 Pavne Avenue, St. Paul. Minnesota• OAH Docket No. 1-2111-12155-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chief Administrative Law Judge, at Minneapolis, Minnesota this 30th day of Apri1, 1999. �,�. �'`�� - l�� < <�� KENNE H A. NICKOLAf � � � �� Chief Administrative Law Judge 612/341-7600 Subpoena requested by: Virginia Palmer, (651) 266-8710 � - ��,�� , y ... �-'�-�`�v� -�.= _v:; " <�1:� - STATE OF MINNESOTA OFFICE OF ADMIlVISTRATIVE HEARINGS HEARING SiTBPOENA TO: Police Officer Joe� Johnson St. Paul Police Department 100 East 11 Street St. Paul, Minnesota 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Administrative Law Judge George A. Beck of the Office of Administrative Hearings of the State of Minnesota, at St. Paul City Hall, Room 41, 15 West Kelfogg Soulevard, in the City of St. Paut, Ramsey County, Minnesota, on the 4th day of May, 1999 at 9:30 o'clock in the forenoon, to appear as a witness in the matter of Licenses held � James Bailev, Inc. d/b/a Arlincaton Pub a/k/a Baifev's Bar for the Premises located at 721 Pavne Avenue. St. Paul. Minnesota• OAH Docket No. 1-2111-12155-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chief Admirr�'strative Law Judge, at Minneapolis, Minnesota this 30th day of Apr'I, 19�9J. �t"• (� . ��: •.� KEf�1SJE�H A. NICKOLAI ChiefA ministrative Law Judge 612/341-7600 Subpoena requested by: Virginia Palmer, (651) 266-8710 � - �_1!� OFFICE OF THE CITYATTORNEY Clayton M Robinson, Jr., CiryAttorney CIT'Y OF SAINT PAiJL ' '_- ': ;� ! ,:' ` �' Norns Coleman, Mayor _� �,';C 2� �;' �� CiviZDivision 400 Ciry Hall IS West Kellogg Blvd Saint Pau1, Minnesota 55102 qq-Z�� Telephone: 612 266-87I0 Facsimile: 612 298-5679 _-.- !(Yi(�' �;�y „C:1�... � JS Apri127, 1999 VIA FAX AND U.S. MAIL Judge George Beck c% Louise Cooper Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, Minnesota 55401-2138 RE: Licenses held by James Bailey, Inc. d/b/a Arlington Pub a/k/a Bailey's Bar for the premises located at 721 Payne Ave. in Saint Paul License ID No.: 16443 Our File Nuxnber G99-0066 Dear Judge Beck: The purpose of this letter is to request subpoenas pursuant to Minnesota Rules, part 1400.7000 relating to the above-mentioned contested case hearing that is scheduled to be heard before you on Tuesday, May 4, 1999. This request is made on behalf of Ms. Virginia Palmer, the attomey assigned to this matter. The City of St. Paul licensing division will be calling these wimesses to testify regarding the incidents which serves as the basis for the action against the licenses of James Bailey, Inc. d/b/a Arlington Pub a/k/a Bailey's Bar. In order to ensure that these individuals will be in attendance to tesrify, the City of St. Paul requests from the State Office of Administrative Hearings subpoenas far the following individuals: 1. Police Officer Sean Burton St. Paul Police Department 100 East 11�' Street Saint Paul, Minnesota 55101 2. Police Officer Jason Urbanski St. Paul Police Department 100 East 11` Street Saint Paui, Minnesota 55101 3. Police Officer Joel Johnson St. Paul Police Department 100 East 11` Street Saint Paul, Minnesota 55101 � ,. � 1 / �Y/� The hearing is scheduled to start at 930 a.m. on Tuesday, May 4, 1999, in Room 41, St. Paul City Hall, 15 West Kellogg Boulevazd, St. Paul, MN 55102. If you need additional information or have any questions regazding this request, please do not hesitate to call me at 266-8776. Thank you for your considerarion in this matter. Sincerel , i Peter P. Pangt Legal Assistant Page 2 OFFICE OF THE CiTY A'i'TORAtEY ClaytonM Robinson. J.., CiryAttornty �1.��1 � � � 6 CITY OF SAINT PAUL Narm Coleman, .Mayor ctvn Dlvrs;an 400 C,ry Xall 1 S West Kellagg $l�d. Sainr Pauf, hlinnesota 55102 Telaplmne 612166-8i10 Facs�mile 612 298-5619 FAX TRANSMISSION DATE: Aprit 27, 1999 TO: Judge GeorgB Beck clo Louise Cooper dffic9 of Administrative H�Brings NUMBER OF PAGES (including cover page): 3 FROM: Peter Pangborn Legal Assistant St. Paul City Attorney's Office 400 City Hall FAX No.: 349-2665 FAX No.: 298-5619 1/ you d0 not receive ati pages of thls fransmission, p/ease contact: Peter Pangborn Teleph�ne No. 286-8778 ` z�uite'd 6Z9S 85Z �S9 ,t3Na011C ,llI� , ��Cd !.. �Z:�: 556�-%z-�+db APR.-2�'99��UE1 10:09 OFFICE OF ADMIN.HEARING TEL:6123492665 P.001 TRAHS.9CT[O\� REPORT RecePtian Transaction(s) completed > NO. TX DATE/TIME DESTI�ATION DURATION PGS. RESULT MODE 644 APR. 27 30+07 651 298 5619 0° 00' SD" 003 OK N ECM i r' OFPICH OF T8S CITY ATTORNEY (�� Clayton M. Rabinson, lr., City Allnrney � ti( � 7 f_' { �� .� �- �J A. i�� i�- `; J CITY OF SAINT PAUL — cNanNUeoR Norm Cnfeman, Mayor �, � F � a �.. 7 r' '�+. {� 400 Ciry Hall � �.t, L_ k;i tw• �1� ts{Yes(Keltaggstvd . _ - Saint Pau� Mirsnama 55702 r.. . J 7 � , :. _ i .. .. March 18, 1999 NOTICE OF HEARING Mazk Vaught Attomey at Law Six West Fifth Street, Suite 700 Saint Paul, Minnesota 55102 Tetephnnc 65l 266-8770 Facsimile: 651298-56I9 RE: All licenses held by 3ames Bailey, Inc. dlbia Arlington Pub aikla Bailey's Baz for the premises located at 721 Payne Ave. in St. Paul License ID No.: 16443 Our File 1Vumber: G99-6066 Dear Mr. Vaught: Please take notice that a hearing will be held at the foilowing time, date and place concerning all licenses for the premises stated above: Date: Tuesday, May 4,1999 Time: 9:30 a.m. Place: Room 41 St. Paul City Hall 15 W. Kellogg Blvd. St. Paul, MN. 5�142 The hearing will be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: Name: George A. Beck Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN. 55401 Telephone: 612-341-7601 , � � �� The Councii of the City of Saint Paul has the authority to provide for hearings conceming licensed premises and for adverse acrion against such licenses, under Cl�apter 310, including secfions 310.05 and 310.06, of the Saint Paui Legisiative Code. In the case of licenses for intoacicating and non- into�cating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse acrion may include revocation, suspension, fines and other penalties or condirions. Evidence will be presented to the judge which may lead to adverse action against a11 the licenses you hold at the above premises as follows: On January 29, 1999, at approximately 2:37 a.m. a Saint Paul Police Officer observed an individual wallc out of Arlington Pub, located at 721 Payne Avenue. The person appeared to be extremely intoxicated. The officer asked if he had been drinking at the bar, and the individual responded that he had been drinking there and it was °last call". The individual was transported to detox, where he registered a.20 alcohol concentration. This conduct is in violafion of Minn. Stat. §340A.504, subd. 2 and Saint Paul Legistative Code §4��.Oi(a), prohibiring the sale of alcohol after 1:00 a.m.; Minn. Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person; and Saint Paul Legislative Code §409.07(c), prohibiting the consumption or display of aicohol at any time whea the sale is not permitted. On February 4,1999, at appro�timately 12:23 a.m., two police officers were sent to Arlington Pub on a report of a man inside causing pro6lems. On arrival, they observed an individual who appeared to be very intoxicated. They spoke to the bartender, who admitted that he had served the individual a drink. This individual was transported to detox, where he registered a.25 alcohol concentration. This is a violation of Minn. Stat. §340A.502, prohibitina the sale of alcohol to an obviously into�cated person. The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrative Law Judae wi11 have a!1 garties idenfify themselves for the record. The City will then present its witnesses and evidence, each of whom the licensee or attomey may cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the Ciry's attomey may cross-examine. The Administrative Law Judge may in addition heaz relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial - interest in the outcome of the proceeding. Concluding azguments may be made by the parties. Following the hearing, the Judge will prepare Findings of Fact, Conclusions of Law, and a specific recommendation for action to be taken by the City Council. Notice of Hearing = Page 2 G�-��7 You should bring to the hearing all documents, records and witnesses you will or may need to support your posirion. Subpoenas may be availabie to compel the attendance of witnesses or the production of documents in conformity with Minnesota Rules, part 14Q0.7000. If a stipulation or agreement can he reached as to the facts, that stipulation will be presented to the Admuustrative Law Judge for incorporarion into his or her recommendation for Council action. If the licensee or his representarive fails to appear at the hearing, their ability to challenge the allegations will be forfeited and the allegations against them which have been stated earlier in this notice may be taken as true. If non-public data is received into evidence at the hearing, it may become public unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. If you have any questions, you can call me at 266-8710. Very truly yours, �� vu-C� � Virginia D. Palmer Assistant City Attomey cc: Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Bruce Sylvester, Community Organizer, Payne Phalen Dist. 5 Planning Council, 1014 Payne Ave., St. Paul, MN 55101 Notice of Hearing - Page 3 �� final decision after reviewing my report. In so doing, it may adopt, reject, or modify my Findings of Fact, ConcIusions, and Recommendations. The final decision of the City Council will not be made until my report has been available to the parties for at least ten days. The parties should check with the City to determine the procedures and time frame to file comments about my report. •• Beginning with Ms. Palmer, would the attorneys and parties please state and spell your names, and state your addresses for the record. V�r��nia. •• At this point would Mr. Vaught and Ms. Palmer please advise me of the witnesses whose testimony you propose to present and the ordez in which you intend to present your witnesses_ Are there any other preliminary matters to be addressed? Have you reached any stipulations about the facts? Do you have any written records or documents which you intend to introduce into evidence? Have they been provided to the other party? �� Have they been marked for identification? (If not, ask the attorneys to mark the e�ibits — numbers for City and Ietters for the license holder.) As I previousi ed, the nc as the burden of proof. It shall begin th rese tatio f evide ce. Testimony in this hearing should be given by question and answer. Witnesses, if you hear one of the attomeys object to a question which is asked of you, please do not answer. I will rule on the objection. If I sustain the objection, you may not answer. If I overrule the objection, you may answer. Part 1400.7300 of the Rules governs the admissibility of evidence at this hearing. It states that: The judge may admit all evidence which has probative value, including hearsay, if it is the type of evidence on which reasonab�e, prudent persons are accustomed to rely in the conduct of their serious affairs. The judge shall give effect to the rules of privilege recognized by law. Evidence which is incompetent, irrelevant, immaterial, or unduly repetitious shall be excluded. (END of Rule language) The rule I have just read is less formal than the rules of evidence in a court proceeding. I will consider evidence such as a � �� OATH OR AFFIRMATION Please stand while I administer the oath. Do you solemnly swear (affirm) that ail the staternents you are abaut to make in this proceeding are the truth, the whole truth and nothing but the truth? Tharlc you, yo:: may be seated. �I et�_ �c�. � n�.�rie. �o„ `1-�-e ,nQC.o.-d a�� hearsay evidence that might not be considered in court, if the evidence appears to be reliable. Are there any questions? Openings: Ms. Palmer, do you wish to make an opening statement? • Mr. Vaught, you can choose to give your opening statement right after Ms. Palmer gives hers, before any of the evidence is presented. Or you can wait untii after the City presents its evidence and give your opening statement befare presenting your evidence. Which would you prefer? Are there any questions before we begin? Ms. Palmer, you may proceed with your opening statemen±. FOLLOWING THE CITY'S OPENING... . Mr. Vaught, you may make your opening statement at this time. FOLLOWINGMr. T�aught'sOPENING... Ms. Palmer, you may call your fust witness. ��,�� Proceed with direct and cross-examination of the wimesses for the City, followed by witnesses for Mr. Vadnais. Opportunity for Itebuttal OPPORTUNiTY FOR CLOSiNG • Under the rules goveming this proceeding, the parties may choose to give a closing argument at this time or you may submit written arguments. Do you wish to make a closing staternent ar submit written arguments? Are there any additional matters to be addressed before I conclude this hearing? This concludes the hearing. Thank you Mr. Vaught and Ms. Palmer. And thank you to those of you who took the time to testify Yoday. Hearing adjourned. ORiG1NAL Presented By Refened To RESOLUTION CITY OF SAINT PAUL, NIINNESOTA Council File # l _l ��` Gteen Sheet # b� `"l�Z �� Committee: Date 1 WHEREAS, the Office of License, Inspections and Environmental Protection (LIEP) 2 initiated adverse action against the licenses of James Bailey, Inc. d/b/a Arlington Pub, 721 Payne 3 Avenue for alleged violations of the laws relating to sale and service of alcohol; and 4 5 WHEREAS, a hearing was held before Admuustrative Law Judge Beverly Jones 6 Heydinger on May 4, 1999 and she issued Findings of Fact, Conclusions of Law and 7 Recommendarion on June 25, 1999 in which she found that the City had not proved the 8 allegations, and recommended no action against the licenses; and 9 10 WIIEREAS, at the hearing on July 28, 1999, LIEP did not file exceptions to the Report 11 but recommended the adoption of the ALJ's Report and Recommendation; now, therefore, be it 12 13 RESOLVED, that the Council of the City of Saint Paul, after due deliberation based upon 14 all of the files, records and proceedings herein, adopts the ALJ's Findings, Conclusions and 15 Recommendarion, and the sazne shall be attached and incorporated herein by reference; and be it 16 17 18 19 20 21 22 FURTHER RESOLVED, that the adverse action against the licenses held by James Bailey, d/b/a Arlington Pub, 721 Payne Avenue, is hereby dismissed and no penalty shall be imposed. A copy of this Resolution, as adopted, shall be sent by first class mail to the Licensee, his attorney and the Administrative Law Judge. Requested by nepaztment of: By: Form Approved y City Attorney BY: X✓ �-�l s'K-e/` Approved by May for Submission to Council By: Appx By: By: Adopted by Council: Date ��C.`�l \ � Adoption Certified by Council Secretaxy �R-�C� 'ARTMINf/OFFICE/COUNCIL DATE WITNTED City Council Offices 8/4/99 GREEN SHEET No 63432 YTAC7 PERSOP} 8 PHOhE �nMFauDa�� InlllaflC�s D B ostro m, 266-8660 �„�,�� .� ST BE ON COUNCIL AGENM 8Y (M7� AESiGM 11, 1949 �� a,r.noaEr arcaFrx_ aourixc ono�e ❑ wwxcuLLafmr,E+ow. wux�u�sEav�accrc ❑wvdtlae.�sascv+i) ❑ � TOTAL # OF SIGNATURE PAGES (CLIP ALL IOCATIONS FOR SIGNATURE) Dismissing the adverse action against licenses held by James &ailey, DBA Arlingeon Pub, 721 Payne Avenue. PIANNING COMMISSfON Cf6 CAMMITTEE CIVfL SERYICE COMMISSION Hes tlris peismlf�m everworked under a coMract for this depaAment7 YES NO Fias this pHSONfirtn ever 6een a dty empioyee7 YES NO Doesthis pe�sonrFrm possess a sldN �rot �wnrial{ypo�sed by any curteM city empbyee? YES NO �s th� pe'sonlfitm atarpeted vcv�d«4 YES NO ,�r��rs�� s��rch G��2�r �llG 9� 4 1999 eosrmEV�t+ufi euocerEO <euee� eeuq ncrn�n eware�n v�s No INFORMATION (IXPWN)- �t - �� 15-2� 11-12155-3 STATE OF MINNESOfA OFFfCE OF Ai7PJlWfSTRATIVE HEARINGS �OR THE 5aINT PAUL CIN COUNCIL in the Matter of ihe License heid by James Bailey, lnc. d/b/a Arlington Pub for the premises located at 721 Payne Avenue, Saint Paui, Minnesota FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION This matter was heard by Administrative Law Judge Beverly Jones Heydinger, commencing at 9:30 a.m., May 4, 1999, at the St. Paul City Hali, Room 41, 15 West Kellogg Boulevard, Saint Paul, Minnesota. The hearing was held pursuant to Notice of Hearing given by Virgin+a D. Palmer, Assistant City Attorney, on behalf of the City of St. Paul. Ms. Palmer, 400 City Hail, 15 West Keliogg Blvd., Saint Paul, Minnesota 55102, appeared on behaif of the City. S. Mark Vaught, Attorney at Law, Six West Fifth Street, Suite 700, Saint Paul, Minnesota 55102-1412, appeared on behalf of James Bailey, Inc. dlb/a Arlington Pub, the ticensee. Following the hearing, the record was left open until May 18, 1999 for submission of closing arguments, and fiive days thereafter for response. The record cfosed on May 26, 1999. NOTICE This report is a recommendation, not a final decision. The St. Paul City Councii will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations. Pursuant to Minn. Stat. § 14.61 (1998), the City Councif shall not make a final decision until this Report has been made available to the parties for at least ten days. The pa�ties may fiie excepiions io inis Report and the City Council musi consider the exceptions in making a final decision. A copy of the City Counci!'s decision must be senied on the parties and the Admin+strative Law Judge by first class mail.� Parties shouid contact the Saint Paul City Council, 310 City Hail, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. � Mintt. Stat. § 14.62, subd. 1(1998). 4R-�/,'I STATEMENT OF THE tSSUES The issues presented at this hearing were: 1. Did the Licensee violate Minn. Stat. § 340A.5U4, subd. 2(1998), and Saint Paui Legislative Code § 409.07(a) which prohibits the sale of alcohol after 1:00 a.m.? 2. Did the Licensee violate Minn. Stat § 340A.502 (1998), which prohibits the sale of alcohol to an obviously intoxicated person, on either January 29, 1999, or February 4, 1999? 3. Did the Licensee violate Saint Paul Legislative Code § 409.07(c) which prohibits the consumption or display of alcohol at any time when the sale is not permitted? FINDINGS OF FACT 1. The Licensee, James Bailey, Inc., hoids licenses to operate a bar, Arfington Pub, located at 721 Payne Avenue in Saint Pau4, Minnesota. The bar is also known as Bailey's Pub. 2. On January 28, 1999, Thomas Doepner and James Werring feft work, bought firvo cases of beer, and returned to Doepners apartment on Bush Street at around 6:00 p.m. The apartment was within two blocks of the Arlington Pub. 3. Doepner, Werring and Doepner's girlfriend drank the two cases of beer. At 12:30 a.m., on January 29, 1999, Doepner's girifriend asked the men to be quiet or leave. Doepner invited Werring to stay on the couch for the night but Werring left the apartment at around 12:45. Doepner admitted that both men were very drunk, that Werring had on light clothing, and Doepner was uncertain that Werring could walk far because he was so intoxicated. It was a very cold night. 4. Karl Tacheny was the bartender at the Arlington Pub on January 29, 1999 when James Werring entered at around 12:45 a.m. and asked for a drink. Tacheny refused to serve Werring because he was intoxicated, and Tacheny had already g+ven "last call". Tacheny let Werring stay in the bar because it was very cold. He doubted that a cab would pick up Werring because Werring was so dcunk. Tacheny knew where Werring lived and decided to give Werring a ride home after closing up the bar. 5. Werring remained in the bar while 7acheny ciosed up, but when it was time to secure the money, Tacheny asked Werring to wait for him outside. Tacheny estimated the time was after 2:00 a.m. Within a few minutes, Tacheny completed closing up the bar, but when he opened the door to look for Werring, F� q9-�4� Werring was gone. Tacheny was very surprised, and looked around the parking lot and surrounding area fior Werring before leaving. ,. 6. it ordinarily takes between 45 and 90 minutes after the bar cfoses to c�san up and restock the bar before the bartender leaves the bar. 7. At approximately 2:30 a.m., Saint Paul Police Oificer Sean Burton was patro4ling Payne Avenue near the cosner of Payne and Minnehaha, by the police sub-station and across the street from the Arlington Pub. He saw a man come out of the door of the 6ar. The officer questioned the man, James Werring, because Werring appeared intoxicated, and he was out alone on a very cold night. 8. Werring told O�cer Burton that he had been drinking in the bar at that time, and that it was "last call". Werring also told the officer thai he had drunk in Bailey's Bar several times after closing. Officer Burton did not investigate to determine if there was anyone in the bar at that time. 9. Officer Burton transported Werring to the detox center. The officer called for back-up to investigate, but none was sent. Ai the detox center, a breath test was administered, and Werring was tested at .20 on the PBT, a prefiminary test that measures alcohoi concentration. Based on his experience and training as a police o�cer, Officer Burton considered Werring "extremefy intoxicated". 10. Werring remembers buying beer and returning to Doepner's apartment. He estimates he drank about 18 beers, but he cannot recall leaving the apartment, going to the 6ar, tafking to O�cer 6urton or being taken to the detox center. He recalls awakening at the detox center and suspects he blacked out. Werring has subsequently entered chemical dependency treatment. 11. Officer Burton returned to the area of Payne and Minnehaha after 3:00 a.m. When he checked the door of the bar at about 3:45 a.m., the door was locked. 12. The bar ordinarily gave "last call" between 12:30 and 12:45 and the patrons left by 1:00 a.m., or slightly thereafter. The main door of the bar is directly across the street from the neighborhood police station. 13. On February 4, 1999, Tacheny was tending bar when he saw two men enter and sit down in a booth about eight feet from the bar. One of the two came up to the bar and ordered two shots of Christian Brothers. Tacheny asked for ident+fication from both men. The second man, Dwight Dismuke, got up from the booth to show his identification, and returned to his seat. Tacheny did not notice any signs of intoxication. 3 ag • ��? 14. Tacheny poured the two drinks and the man who ordered the drinks carried them back to his seat +n the booth with Dismuke. ln less than five minutes an argument broke out befinreen the two men. The men were loud, waving their arms, and using profane 4anguage. Tacheny came out from behind the bar, took away the two ;s poured them into the bar sink, and told the men to leave. The man who ordered the drinks immediatefy departed. Dismuke said he would leave, but when he got up from the table, he stumbled and fefl. Tacheny helped him up and into a booth. Within moments, several Saint Paul police officers arrived. There were 10 to 15 other customers in the bar at the time. 15. Among the officers who arrived at the bar were Jason Urbanski and Joe( Johnston. Both were experienced o�cers. O�cer Johnston had covered Payne Avenue for many years and was familiar with the bar. O�cer Urbanski had four years experience in North �aini Paul anti w�s in irain+ng with the Saint Paul Police. He took charge at the scene, under Officer Johnston's supervision. He arrived at the bar within minutes of receiving a cafl that a customer was causing trouble. Upon arriving, the officers saw a man, later identified as Dismuke, slouched in a booth. 16. O�cer Urbanski observed that Dismuke was not very coherent and did not seem to understand the questions put to him by the police officers. Dismuke smelled of alcohol and his eyes were bloodshot. The police checked for identification. 17. Officer Urbanski asked Tacheny if he had served Dismuke a drink, and Tacheny acknowledged that he had. He toid the o�cers that Dismuke had been in the bar a short time. Neither Officer Urbanski nor Officer Johnston recailed seeing a drink on the tabfe in front of Dismuke when they arrived. Sased on their training and experience, both officers concluded that Dismuke was clearly intoxicated. This was corroborated by Officer Burton who was among the officers cailed to the bar. 18. Officer Johnston noted that Tacheny had not called the police, that he was surprised when they arrived, and a little bewildered by what had happened. Tacheny told O�cer Johnston that he did not know who had cailed the police. 19. 7he police took Dismuke to the detox center where he scored 2.5 on the PBT. 20. 7he police did not interview any of ihe other bar patrons and conducted no further investigation of the incident. Neither the police nor a licensing inspector questioned Tacheny about Dismuke's arrival at the bar or what Tacheny observed when he served Dismuke. 0 �°t•��? 21. Kristina Schweinier, senior licensing inspector, Office of License, Inspections and Environmental Protection, based her decision to initiate action solely on the police report. No investigator spoke with the licensee's employees or owners, or with Werring, Doepner, bar patrons or ar:y other witness. 22. Any Finding of Fact more proper{y termed as a Conclusion is hereby adopted as a Concfusion. CONCLUSIONS 1. The Administrative Law Judge and the Saint Paul City Counci! have jurisdiction in this case? 2. The Licensee received timely and proper notice of the hearing and the City has complied with all relevant substantive and procedural reGuiremenis of statute and rule. 3. The City has authority to suspend or revoke a license and to impose penafties for vioVation of applicable statutes and ruies 4 4. The Licensee is responsible for conduct in the licensed estabiishment, including conduct by an employee authorized to seli alcohol. 5. The City has the burden of proving that the Licensee violated the applicable provisions of state iaw and city ordinance by a preponderance of the evidence. 6. It is a violation of both state law and city ordinance to sell alcohoi after 1:00 a.m. The Gity failed to show by a preponderance of the evidence that Karl Tacheny so{d alcohol to James Wersing after 1:00 a.m. on January 29, 1999. 7. It is a violation ofi state law to sell aicohol to an obviously intoxicated person.� The City failed to show by a preponderance of the evidence that Karl Tacheny sold alcohol to James Werring on January 29, 1999, or that Dwight Dismuke was "obviousfy intoxicated" when Karl Tacheny sold him a drink on February 4, 1999. 8. A local authority, such as the City, may impose limitations within its limits beyond those established by state law. Z Minn. Stat. § 340A.415 (1498); Saint Paul L.egisiative Code § 409.12. ' See Minn. Stat. § 14.57 —14.61, 340A.415 (1498); Saint Paul Legislative Code § 310.05. " Minn. Stat. § 340A.415 (1998); Sainc Paul Legislative Code § 31Q.06. 5 Minn. Stat. § 340A.501 (1998); Saint Paul Le�islative Code §§ 310.17 and 409.14. 6 Minn. Stat. § 340A.504, subd. 2(1998); Saint Paul Legislative Code § 409.07(a). ' Minn. Stat § 340A.502 (1998). e Mirm. Stat. § 340A.509 (1998). a9-'149 9. It is a violafion of city ordinance to consume or display alcohol at any time when the sale of alcohol is not permitted. The City failed to show by a preponderance of the evidence that Kari Tacheny permitted consumption or display of alcohol after 1:00 a.m, on January 29, 1999. Based upon the foregoing Conclusions, the Administrative Law Judge makes the foliowing: RECOMMENDATION IT IS HEREBY RECOMMENDED: that the violations cited by the City of Saint Paul against the Licensee be DISMISSED in all respects. Dated this 25th day of June, 1999. • , L_ Beverly J s Heyding Admini ive Law J ge Reported: Tape-recorded {four tapes} MEMORANDUM Although there was circumstantial evidence that led the police officers to conclude that violations governing the operation of the Arlington Pub occurred, there was credible direct testimony to the contrary. For the three violations arising on January 29, 1999, Werring's statement that he had been drinking in the bar was the onfy evidence in support of the alfeged violations. Werring was, by alf accounts, extremefy intoxicated, and has no recoilection of the incident or what he told the o�cer. fn comparison, the other witnesses provided a detaifed account of Werring's drinking that evening, and their testimony was consistent with Oificer Burton's observation of Werring leaving the bar. Aithough Officer Burton's hypothesis is pfausible, the testimony ofi the other witnesses was detailed and consistent with a differeni conclusion. Neither ihe police nor the City inspectors investigated the matter on the evening Werring was detained, or thereafter. One can not conclude from the testimony of the offcers that the bartender served an "obviously intoxicated" person on February 4, 1999. Tacheny admitted serving Dismuke, but denied that Dismuke was obviously intoxicated when he 9 Saint Paul Legislative Code § 409.07(c). �q � �� was served. The officers could only testify to what they saw when called to the bar. Although it would be reasonable to conclude that Dismuke was intoxicated when he entered the bar, that is not the issue to be addressed. The question is whether the bartender ssrved an "obviously intoxicated" person. Tacheny's testimony on this poir,t is credible, and supported by the steps he took when Dismuke and his companion got in an argument. He took away the drinks he had served and to(d the men to leave the bar. The officers and Tacheny all testified that Dismuke did not have a drink when the police arrived, that Tacheny was surpsised to see them and had not called the police, and that Tacheny openly acknowledged that he had served Dismuke a drink. Neither the police nor the licensing inspectors asked Tacheny any questions about Dismuke's condition at the time Tacheny served him. Although several other peopfe were in the bar at the time, none were interviewed. "Obvious intoxication" must be "readily and piainiy evident without affirmative effort to perceive it and so cfear that the observer would be bound to notice.° � It does not require "reasonably active observation of his appearance, breath, speech and actions."'� Tacheny openly admitted that he noticed Dismuke and his companion enter the bar and take a seat, and that he asked them to come forward with identification. But he denied observing signs of obvious intoxication. Once the men began to argue, he retrieved the drinks and ejected the men. Although this all occurred within a few minutes, the uncontroverted evidence that Dismuke's companion was gone and that there was no drink in front of Dismuke, even though Tacheny did not know the police were cailed, supports Tacheny's testimony. The testimony of the police officers about what they observed was credible. Each of them sized up the situation, based on their training and experience. Their conclusions were neither unreasonable nor inconsistent with their observations. Nonetheless, the detailed testimony of the other witnesses supports a different conclusion. Tacheny, Werring and Doepner were open and straightforward. Hlthough the Ciiy asserts that Tacheny may nave a motive to lie, nothing in his answers or demeanor suggested that he was lying, nor were his answers inconsistent with the observations by the police, or with other witnesses to the events. Tacheny gave a detailed and credible account of the events that occurred. Mr. Clarence Bailey's testimony was given littie weight. He admitted that he was not present at the bar on either January 29 or February 4, 1999. He believes the poiice unfairly target the bars on Payne Avenue, but the facts of this 10 Mos v. Mjos, 178 N.W.2d 862, 867 (Minn. 1970). " Id. 7 4 q -��7 case support the actions of the police. The observations noted in their reports are consisfent wifh the testimony of the other witnesses. Nonetheless, their observations alone were insufficient to support a conciusion that the Licensee violated the cited p� ovisions ofi law. BJFi OFFICE OF THE CITY ATTORNEY �� / Citryfon M Robinson, Jr., CiryAttorney � CITY OF SAINT PAUL Norm Colemm�, Mayor June 30, 1999 Civil Division 400 City Hall IS West KelloggBlvd S¢int Paul, Minnesota 55102 NOTICE OF COUNCIL HEARING Mazk Vaught Attorney at Law Six West Fifth Street, Suite 700 Saint Paul, Minnesota 55102 Telephone: 651266-87I0 Facsimile: 6512985619 RE: All licenses held by James Bailey, Inc. d(b/a Arlington Pub alkla Bailey's Baz for the premises located at 721 Payne Ave. in St. Paul License ID No.: 16443 Our File Number: G99-0066 Deaz Mr. Vaught: Please take notice that a heazing on the report of the Administrative Law Judge concerning the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, July 14,1999, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opporhxnity to file exceptions to the report with the City Cierk at any time during normal business hours. You may also present oral or written azgument to the council at the Hearing. No new evidence will be received or testimony taken at this heazing. The Council will base its decision on the record of the proceedings before the Administrative Law Judge and on the azguments made and exceptions filed, but may depart from the recommendations of such Judge as pernutted by law in the exercise of its judgement and discretion. Sincerely, /'' � xriQ �. � �" � � c - t J '''� l Virgini�D. Palmer Assistant City Attorney Cci:�w� ��1�?� t^>�rf� sL ', `� cc: Nancy Anderson, Assistant Council Secretary, 310 City Ha11 Robert Kessler, Director, LIEP Christine Rozek, LIEP Bruce Sylvester, Community Organizer, Payne Phalen Dist. � Pl�anning �'ou�3cf1,10 �4 Payne Ave., St. Paui, MN 55101 4k _��? 15-2111-12155-3 STATE OF MINNESOTA OFFICE OF A�MIN!-STRATIVE HEARINGS FOR THE SAINT PAUL CITY COUNCIL In the Matter of the License held by James Bailey, Inc. d/b!a Arlington Pub for the premises located at 721 Payne Avenue, Sai�t Raul, Minnesota FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION This matter was heard by Administrative Law Judge Bever{y Jones Heydinger, commencing at 9:30 a.m., May 4, 1999, at the St. Paui City Hall, Room 41, 15 West Kellogg Boulevard, Saint Paul, Minnesota. The hearing was held pursuant to Notice of Hearing given by Virginia D. Palmer, Assistant City Attorney, on behaif of the City of St. Paul. Ms. Palmer, 400 City Hall, 15 West Kellogg Bivd., Saint Paul, Minnesota 55102, appeared on behaif of the City. S. Mark Vaught, Attorney at Law, Six West Fifth Street, Suite 700, Saint Paui, Minnesota 55102-1412, appeared on behalf ofi James Bailey, Inc, d/b/a Arlington Pub, the Licensee. Following the hearing, the record was left open untif May 18, 1999 for submission of ciosing arguments, and five days thereafter for response. The record closed on May 26, 1999. NOTICE This report is a recommendation, not a finai decision. The St. Paul City Council will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations. Pursuant to Minn. Stat. § 14.61 (1998), the City Council shai! not make a final decision until this Report has been made available to the parties for at least ten days. Th� pa�tiES may �'se exceptions to this Repori and the Ciiy Councii must consider the exceptions in making a fina{ decision. A copy of the City Council's decision must be served on the parties and the Administrative Law Judge by first class mail.� Parties should contact the Saint Paul City Councii, 3�0 City Hall, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. � Minn. Stat. § 14.62, subd. 1(1998). aq •'tc� STATEMENT OF THE ISSUES The issues presented at this hearing were: 1. Did the Licensee violate Minn. Stat. § 340A.5U4, subd. 2(1998), and Saint Paul Legisiative Code § 409.�7(a) which prohibits the sale of alcohol after 1:00 a.m.? 2. Did the Licensee violate Minn. Stat § 340A.502 (1998), which prohibits the sale of aicohol to an obviousiy intoxicated person, on either January 29, 1999, or February 4, 1999? 3. Did the Licensee violate Saint Paul Legislative Code § 409.07(c) which prohibits the consumption or dispiay of alcohol at any time when the sale is not permitted? FiNDINGS OF FACT 1. The Licensee, James Bailey, Inc., holds licenses to operate a bar, Arlington Pub, located at 721 Payne Avenue in Saint Paul, Minnesota. The bar is also known as Bailey's Pub. 2. On January 28, 1999, Thomas Doepner and James Werring left work, bought two cases of beer, and returned to Doepner's apartment on Bush Street at around 6:00 p.m. The apa�tment was within two blocks of the Arlington Pub. 3. Doepner, Werring and Doepner's girifriend drank the two cases of aeer. At 12:30 a.m., on January 29, 1999, Doepner's girlfriend asked the men fo be quiet or leave. Doepner invited Werring to stay on the couch for the night but Werring left the apartment at around 12:45. Doepner admitted that both men were very drunk, that Werring had on light clothing, and Doepner was uncertain that Werring could walk far because he was so intoxicated. It was a very cold night. 4. Karl Tacheny was the bartender at the Arlington Pub on January 29, 1999 when James Werring entered at around 12:45 a.m. and asked for a drink. Tacheny refused to serve Werring because he was intoxicated, and Tacheny had already given "last cali". Tacheny let Werring stay in the bar because it was very cold. He doubted that a cab would pick up Werring because Werring was so drunk. Tacheny knew where Werring lived and decided to give Werring a ride home after closing up the bar. 5. Werring remained in ihe bar whife Tacheny closed up, but when it was time to secure the money, Tacheny asked Werring to wait for him outside. Tacheny estimated the time was after 2:00 a.m. Within a few minutes, Tacheny completed closing up the bar, but when he opened the door to look for Werring, 2 qa.�G� Werring was gone. Tacheny was very surprised, and 400ked around the parking lot and surrounding area for Werring before leaving. ,- 6. it ordinarily takes between 45 and 90 minutes after the bar closes to c�ean up and resiock the bar before the bartender leaves the bar. 7. At approximately 2:30 a.m., Saint Paul Police Officer Sean Burton was patrolling Payne Avenue near the corner of Payne and Minnehaha, by the police sub-station and across the street from the Arlington Pub. He saw a man come out of the door of the bar. The officer questioned the man, James Werring, because Werring appeared intoxicated, and he was out alone on a very cold night. 8. Werring told Officer Burton that he had been drinking in the bar at that time, and that it was "last call". Werring also told the officer thai he rad drunk in Bailey's Bar severai times after closing. O�cer Burton did not investigate to determine if there was anyone in the bar at that time. 9. Officer Burton transported Werring to the detox center. The officer called for back-up to investigate, but none was sent. At the detox center, a breath test was administered, and Werring was tested at .20 on the PBT, a preliminary test that measures aicohol concentration. Based on his experience and training as a police officer, O�cer Burton considered Werring "extremely intoxicated". 10. Werring remembers buying beer and returning to Doepner's apartment. He estimates he drank about 18 beers, but he cannot recall feaving the apartment, going to the bar, talking to Officer Burton or being taken to the detox center. He recalls awakening at the detox center and suspects he blacked out. Werring has subsequently entered chemical dependency treatment. 11. Officer Burton returned to the area of Payne and Minnehaha after 3:00 a.m. When he checked the door of the bar at about 3:45 a.m., the door was locked. 12. The bar ordinarily gave "last call" between 12:30 and 12:45 and the patrons left by 1:00 a.m., or slightly thereafter. The main door of the bar is d'+rectly acsoss the street fram the neighborhood po4ice station. 13. On February 4, 1999, Tacheny was tending bar when he saw two men enter and sit down in a booth about eight feet from the bar. One of the two came up to the bar and ordered two shots of Christian Brothers. Tacheny asked for identification from both men. The second man, Dwight Dismuke, got up from the booth to show his identification, and returned to his seat. Tacheny did not notice any signs of intoxication. 3 R1-'►G� 14. Tacheny poured the two drinks and the man who ordered the drinks carried them back to his seat in the booth with Dismuke. In less than five minutes an argument broke out between the two men. The men were loud, waving their arms, and using profane ianguage. Sacheny came out from behind the bar, took away the twu �rinks, poured them into the bar sink, and toid the men to leave. The man who ordered the drinks immediately departed. Dismuke said he would leave, but when he got up from the table, he stumbled and fiell. Tacheny he{ped him up and into a boath. Within moments, severa( Saint Paul police officers arrived. There were 10 to 15 other customers in the bar at the time. 15. Among the officers who arrived at the bar were Jason Urbanski and Joel Johnston. Both were experienced officers. Officer Johnston had covered Payne Avenue for many years and was familiar with the bar. O�cer Urbanski had four years expesience in North Saint Paul and was in training with the Saint Paul Police. He took charge at the scene, under O�cer Johnston's supervision. He arrived at the bar within minutes of receiving a call that a customer was causing trouble. Upon arriving, the officers saw a man, later identified as Dismuke, slouched in a booth. 16. O�cer Urbanski observed that Dismuke was not very coherent and did not seem to understand the questians put to him by the police officers. Dismuke smelied of alcohol and his eyes were bloodshot. The police checked for identification. 17. O�cer Urbanski asked Tacheny if he had served Dismuke a drink, and Tacheny acknowledged that he had. He told the officers that Dismuke had been in the bar a short time. Neither Officer Urbanski nor Officer Johnston reca{led seeing a drink on the table in front of Dismuke when they arrived. Based on their training and experience, both officers concluded that Dismuke was clearly intoxicated. This was corroborated by Officer Burton who was among the officers called to the bar. 18. Officer Johnston noted that Tacheny had not called the police, that he was surprised when they arrived, and a little bewildered by what had happened. Tacheny told Officer Johnston that he d+d not know who had called the police. 19. The police took Dismuke to the detox center where he scored 2.5 on the PBT. 20. The police did not interview any of the other bar patrons and conducted no further investigation of the incident. Neither the police nor a licensing inspector questioned Tacheny about Dismuke's arrival at the bar or what Tacheny observed when he served Dismuke. � �a --k.� 21. Kristina Schweinler, senior licensing inspector, Office of License, Inspections and Environmental Protection, based her decision to initiate action solely on the police report. No investigator spoke with the licensee's employees or owners, or with Werring, Doepner, bar patrons or ar.y other witness. 22. Any Finding of Fact more properly termed as a Conclusion is hereby adopfed as a Conciusion. CONCLUSIONS 1. The Administrative Law Judge and the Saint Pau( City Counci! have jurisdiction in this case. 2. The Licensee received timely and proper notice of the hearing and the City has complied with all relevant substantive and procedural reQu:rem�nis of statute and rule. 3. The City has authority to suspend or revoke a license and to impose penaities for violation of applicable statutes and rules 4 4. The Licensee is responsib{e for conduct in the licensed establishment, including conduct by an employee authorized to seil alcohol. 5. The City has the burden of proving that the Licensee violated the applicable provisions of state law and city ordinance by a preponderance of the evidence. 6. It is a violation of both state law and city ordinance to se41 alcohol after 1:00 a.m. The City failed to show by a preponderance of the evidence that Kari Tacheny sold alcohol to James Werring after 1:00 a.m. on January 29, 1999. 7. It is a violafron of state law to sell alcoho( to an obviously intoxicated person.' The City failed to show by a preponderance of the evidence that Karl Tacheny sold alcohol to James Werring on January 29, 1999, or that Dwight Dismuke was "obviously intoxicated" when Kari Tacheny sold him a drink on February 4, 1999. 8. A focal authority, such as the City, may impose fimitations within its limits beyond those established by state law. z Minn. Stat. § 340AA t5 (1998); Saint Paul Legislative Code § 449.12. ' See Minn. Stat. § 14.57 — 14.61, 340A.415 (1998); Saint Paul Legislative Code § 310.05. 4 Minn. Stat. § 340A.415 (1998); Saint Paul Legislative Code § 310.06. 5 Minn. Stat. § 340A.501 (1998); Saint Paul Legislative Code §§ 310.17 and 409.14. 6 Minn. Stat. § 340A.504, subd. 2(1998); Saint Paul Legislative Code § 409.07(a). ' Minn. Stat. § 340A.5�2 (1998). $ Minn. Stat. § 340A.509 (1998). q`t-'14� 9. It is a violation of city ordinance to consume or display alcohol at any time when the sale of alcohol is not permitted. The City failed to show by a preponderance of tfie evidence that Kar1 Tacheny permitted consumption or display of alcohol after 1:00 a.m. on January 29, 1999. Based upon the fioregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RECOMMENDED: that the violations cited by the City of Saint Paui against the Licensee be DISMISSED in ali respects. Dated this 25th day of June, 1999. '�� . L_ Beverly J s Heyding Admini ive Law J ge Reported: Tape-recorded (four tapes) MENfORANDUM Although fhere was circumstantial evidence that led the police o�cers to concfude that violations governing the operation of the Arlington Pub occurred, there was credible direct testimony to the contrary. For the three violations arising on January 29, 1999, Werring's statement that he had been drinking in the bar was the only evidence in support of the alleged violations. Werring was, by all accounts, extremely intoxicated, and has no reco4lection of the incident or what he told the officer. In comparison, the other witnesses provided a detailed account of Werring's drinking that evening, and their testimony was consistent with Officer Burton's observation of Werring leaving the bar. Although Officer Burton's hypothesis is plausible, the testimony of the other witnesses was detailed and consistent with a different conclusion. Neither the police nor the City inspectors investigated the matter on the evening Werring was detained, or thereafter. One can not conclude from the testimony of the o�cers that the bartender served an "obviousiy intoxicated" person on February 4, 1999. Tacheny admitted serving Dismuke, but denied that Dismuke was obviously intoxicated when he ' Saint Paul Legislative Code § 409.07(c). C.� °ta-�� was served. The ofiFicers could only testify to what they saw when called to the bar. Although if would be reasonable to conclude that Dismuke was intoxicated when he entered fhe bar, that is not the issue to be addressed. The question is whether the barkender served an "obviously intoxicated" person. Tacheny's testimony on this poiri is credible, and supported by the steps he took when Dismuke and his companion goi in an argument. He took away the drinks he had served and told the men to leave the bar. The offcers and Tacheny afl testified that Dismuke did not have a drink when the police arrived, that Tacheny was surprised to see them and had not calied the police, and that Tacheny openly acknowledged that he had served Dismuke a drink. Neither the police nor the licensing inspectors asked Tacheny any questions about Dismuke's condition at the time Tacheny served him. Although several other people were in the bar at the time, none were interviewed. "Obvious intoxication" must be "readily and plainly evident without affirmative effort to perceive it and so clear that the observer would be bound to notice." It does not require "reasonably active observation of his appearance, breath, speech and actions."�� Tacheny openly admitted that he noticed Dismuke and his companion enter the bar and take a seat, and that he asked them to come forward with identification. But he denied observing signs of obvious intoxication. Once the men began to argue, he retrieved the drinks and ejected the men. Although this all occurred within a few minutes, the uncontroverted evidence that Dismuke's companion was gone and that there was no drink in front of Dismuke, even though Tacheny did not know the police were called, supports Tacheny's testimony. The testimony of the police officers about what they observed was credible. Each of them sized up the situaiion, based on their training and experience. Their conclusions were neither unreasonable nor inconsistent with their observations. Nonetheless, the detailed testimony of the other witnesses suppo�ts a different conc(usion. Tacheny, Werring and Doepner were open and straightforward. Although the Cify asserts that Tacheny may nave a motive to lie, nothing in his answers or demeanor suggested that he was lying, nor were his answers inconsistent with the observations by the police, or with other witnesses to the events. Tacheny gave a detailed and credibie account of the events that occurred. Mr. Cfarence Saiiey's testimony was given iittle weight. He admitted that he was not present at the bar on either January 29 or February 4, 1999. He believes the police unfairly target the bars on Payne Avenue, but the facts of this 10 Mjos v. Mjos, 178 N.W2d 862, 867 (Minn. 1970). " Id. �] a�-�c� case support the actions of the police. The observations noted in their reports are consistent with the testimony of the other witnesses. Nonefheless, fheir observations alone wers insu�cient to support a conciusion that the Licensee violated the cifed p�ovisions of law. BJH June 25, 1999 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 Fred Owusu City Clerk 170 City Hall 15 W. Kellogg Boulevard St. Paul, Minnesota 55102 R�'CEtYE� JUN 2 8 i999 C�T,Y �LERK q �,� �� RE: In the Matter of the License held by James Bailey, Inc. d/b/a Arlington Pub for the Premises Located at 721 Payne Avenue, Saint Paul, Minnesota; OAH Docket No. 12-2111-12155-3. Dear Mr. Owusu: Enclosed and served upon you is the Findings of Fact, Conclusions and Recommendation of the Administrative Law Judge in the above-entitled matter. Also enclosed is the official record and we are now closing our file. Sincerely, � � j �n _ � �� BEVERLY NES HEYDINGER Administrative Law Judge Telephone:612/341-7606 BJH:Ic Enclosure cc: Virginia D. Palmer Mark Vaught Providing Impartial Hearings for Government and Citizens An Eq u a l Opportunity Employer Administrative Law Section 8. Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 ; �q,�� STATE OF MINNESOTA) ) ss COUNTY OF HENNEPIN) AFFIDAVIT OF SERVICE BY U.S. MAIL Louise C. Cooper, being first duly sworn, hereby deposes and says that on the 25th day of June, 1999, at the City of Minneapolis, county and state aforementioned, she served the attached FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION: OAH Docket No. 15-2111-12155-3 by depositing in the United States mail at said City of Minneapolis, a true and correct copy thereof, properly enveloped, with first class postage prepaid and addressed to the individuals named herein. Fred Owusu City Clerk 170 City Hall 15 W. Kellogg Boulevard St. Paul, MN 55102 Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Kellogg Bivd. St. Paul, MN 55102 Mark Vaught Attorney at Law Six West Fifth St., Suite 700 St. Paul, MN 55102-1412 �-��—_� C _ C�-�-��'! Louise C. Cooper Subscribed and sworn to before me this 25th day of June ��'✓� �i°�.��-�-� Notary � lic 1999 5 ��"�M��nnr.nnnnMnnnnnn n��\nMAM � 2� CINDY ETIENNE �� NO7ARY PUBLIC-MINNESOTA ANOKA COUNTY My Comm. Expires Jan. 31, 2000 • WVVN/W VWV`JVyyyyyyyWV • � 4 �� 15-2111-12155-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATNE HEARINGS FOR THE SAINT PAUL CITY COUNCIL In the Matter of the License held by James Bailey, Inc. d/b!a Arlington Pub for the premises located at 721 Payne Avenue, Saint Paul, Minnesota FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION This matter was heard by Administrative Law Judge Beverly Jones Heydinger, commencing at 9:30 a.m., May 4, 1999, at the St. Paul City Hall, Room 41, 15 West Kellogg Boulevard, Saint Paul, Minnesota. The hearing was held pursuant to Notice of Hearing given by Virginia D. Palmer, Assistant City Attorney, on behalf of the City of St. Paul. Ms. Palmer, 400 City Hall, 15 West Kelfogg Blvd., Saint Paul, Minnesota 55102, appeared on behalf of the City. S. Mark Vaught, Attorney at Law, Six West Fifth Street, Suite 700, Saint Paul, Minnesota 55102-1412, appeared on behalf of James Bailey, Inc. d/b/a Arlington Pub, the Licensee. Following the hearing, the cecord was left open until May 18, 1999 for submission of closing arguments, and five days thereafter for response. The record closed on May 26, 1999. NOTICE This report is a recommendation, not a final decision. The St. Paul City Council will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conalusions, and Recommendations. Pursuant to Minn. Stat. § 14.61 (1998), the City Council shall not make a final decision until this Report has been made available to the parties for at least ten days. The parties may file exceptions to this Report and the City Council must consider the exceptions in making a final decision. A copy of the City Council's decision must be served on the parties and the Administrative Law Judge by first class mail.' Parties shoufd contact the Saint Paul City Councif, 310 City Hall, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. 1 Minn. Stat. § 14.62, subd. 1(1998). STATEMENT OF THE ISSUES The issues presented at this hearing were: 1. Did the Licensee violate Minn. Stat. § 34�A.5�4, subd. 2(1998), and Saint Paul Legislative Code § 409.07(a) which prohibits the sale of alcohol after 1:00 a.m.? 2. Did the Licensee violate Minn. Stat § 340A.502 (1998), which prohibits the sale of alcohol to an obviously intoxicated person, on either January 29, 1999, or February 4, 1999? 3. Did the Licensee violate Saint Paul Legislative Code § 409.07(c) which prohibits the consumption or display of alcohol at any time when the sale is not permitted? FINDINGS OF FACT 1. The Licensee, James Bailey, Inc., holds licenses to operate a bar, Arlington Pub, located at 721 Payne Avenue in Saint Paul, Minnesota. The bar is also known as Bailey's Pub. 2. On January 28, 1999, Thomas Doepner and James Werring left work, bought two cases of beer, and returned to Doepner's apartment on Bush Street at around 6:00 p.m. The apartment was within two blocks of the Arlington Pub. 3. Doepner, Werring and Doepner's girifriend drank the two cases of beer. At 12:30 a.m., on January 29, 1999, Doepner's girlfriend asked the men to be quiet or leave. Doepner invited Werring to stay on the couch for the night but Werring left the apartment at around 12:45. Doepner admitted that both men were very drunk, that Werring had on light clothing, and Doepner was uncertain that Werring could walk far because he was so intoxicated. 1t was a very cold night. 4. Karl Tacheny was the bartender at the Arlington Pub on January 29, 1999 when James Werring entered at around 12:45 a.m. and asked for a drink. Tacheny refused to serve Werring because he was intoxicated, and Tacheny had already given "last call". Tacheny let Werring stay in the bar because it was very cold. He doubted that a cab would pick up Werring because Werring was so drunk. Tacheny knew where Werring lived and decided to give Werring a ride home after closing up the bar. 5. Werring remained in the bar while Tacheny closed up, but when it was time to secure the money, Tacheny asked Werring to wait for him outside. Tacheny estimated the time was after 2:00 a.m. Within a few minutes, Tacheny completed closing up the bar, but when he opened the door to look for Werring, �q"�� 2 vl L� '� (�� Werring was gone. Tacheny was very surprised, and looked around the parking lot and surrounding area for Werring before leaving. 6. It ordinarily takes befir✓een 45 and 90 minutes after the bar closes to clean up and restock the bar before the bartender leaves the bar. 7. At approximately 2:30 a.m., Saint Paul Police Officer Sean Burton was patrolling Payne Avenue near the corner of Payne and Minnehaha, by the police sub-station and across the street from the Arlington Pub. He saw a man come out of the door of the bar. The officer questioned the man, James Werring, because Werring appeared intoxicated, and he was out alone on a very cold night. 8. Werring told Officer Burton that he had been drinking in the bar at that time, and that it was "last call". Werring also told the officer that he had drunk in Bailey's Bar several times after closing. Officer Burton did not investigate to determine if there was anyone in the bar at that time. 9. O�cer Burton transported Werring to the detox center. The officer called for back-up to investigate, but none was sent. At the detox center, a breath test was administered, and Werring was tested at .20 on the PBT, a preliminary test that measures alcohol concentration. Based on his experience and training as a police officer, O�cer Burton considered Werring "extremely intoxicated". 10. Werring remembers buying beer and returning to Doepner's apartment. He estimates he drank about 18 beers, but he cannot recail leaving the apartment, going to the bar, talking to Officer Burton or being taken to the detox center. He recalls awakening at the detox center and suspects he blacked out. Werring has subsequently entered chemical dependency treatment. 11. Officer Burton returned to the area of Payne and Minnehaha after 3:00 a.m. When he checked the door of the bar at about 3:45 a.m., the door was locked. 12. The bar ordinarily gave "last call" between 12:30 and 12:45 and the patrons left by 1:00 a.m., or slightfy thereafter. The main door of the bar is directly across the street from the neighborhood police station. 13. On February 4, 1999, Tacheny was tending bar when he saw two men enter and sit down in a booth about eight feet from the bar. One of the two came up to the bar and ordered two shots of Christian Brothers. Tacheny asked for identification from both men. The second man, Dwight Dismuke, got up from the booth to show his identification, and returned to his seat. Tacheny did not notice any signs of intoxication. k? �� 14. Tacheny poured the two drinks and the man who ordered the drinks carried them back to his seat in the booth with Dismuke_ ln less than five minutes an argument broke out between the two men. The men were loud, waving their arms, and using profane language. Tacheny came out from behind the bar, took away the two drinks, poured them into the bar sink, and told the men to leave. The man who ordered the drinks immediately departed. Dismuke said he would leave, but when he got up from the table, he stumbled and fell. Tacheny helped him up and into a booth. Within moments, several Saint Paul police oSficers arrived. There were 10 to 15 other customers in the bar at the time. 15. Among the officers who arrived at the bar were Jason Urbanski and Joel Johnston. Both were experienced officers. Officer Johnston had covered Payne Avenue for many years and was familiar with the bar. Officer Urbanski had four years experience in North Saint Paul and was in training with the Saint Paul Police. He took charge at the scene, under Officer Johnston's supervision. He arrived at the bar within minutes of receiving a call that a customer was causing trouble. Upon arriving, the officers saw a man, later identified as Dismuke, slouched in a booth. 16. Officer Urbanski observed that Dismuke was not very coherent and did not seem to understand the questions put to him by the police o�cers. Dismuke smelled of alcohol and his eyes were bloodshot. The police checked for identification. 17. Officer Urbanski asked Tacheny if he had served Dismuke a drink, and Tacheny acknowledged that he had. He told the officers that Dismuke had been in the bar a short time. Neither Officer Urbanski nor Officer Johnston recalled seeing a drink on the tabfe in front of Dismuke when they arrived. Based on their training and experience, both officers concluded that Dismuke was clearly intoxicated. This was corroborated by Officer Burton who was among the officers called to the bar. 18. Officer Johnston noted that Tacheny had not called the police, that he was surprised when they arrived, and a little bewildered by what had happened. Tacheny told Officer Johnston that he did not know who had called the police. 19. The police took Dismuke to the detox center where he scored 2.5 on the PBT. 20. The police did not interview any of the other bar patrons and conducted no further investigation of the incident. Neither the police nor a licensing inspector questioned Tacheny about Dismuke's arrival at the bar or what Tacheny observed when he served Dismuke. 0 G �,�� 21. Kristina Schweinler, senior licensing inspector, O�ce of License, lnspections and Environmental Protection, based her decision to initiate action solely on the police report. No investigator spoke with the licensee's employees or owners, or with Werring, Doepner, bar patrons or any other witness. 22. Any Finding of Fact more properfy termed as a Concfusion is hereby adopted as a Conclusion. CONCLUSIONS 1. The Administrative Law Judge and the Saint Paul City Council have jurisdiction in this case? 2. The Licensee received timely and proper notice of the hearing and the City has complied with all relevant substantive and procedural requirements of statute and rule 3 3. The City has authority to suspend or revoke a license and to impose penalties for violation of applicable statutes and rules.' 4. The Licensee is responsible for conduct in the licensed establishment, including conduct by an employee authorized to sell alcohol 5 5. The City has the burden of proving that the Licensee violated the applicable provisions of state law and city ordinance by a preponderance of the evidence. 6. It is a violation of both state law and city ordinance to sell alcohol after 1:00 a.m. The City failed to show by a preponderance of the evidence that Karl Tacheny sold alcohol to James Werring after 1:00 a.m. on January 29, 1999. 7. It is a violation of state law to sell alcohol to an obviously intoxicated person.' The City failed to show by a preponderance of the evidence that Karl Tacheny sold alcohol to James Werring on January 29, 1999, or that Dwight Dismuke was "obviously intoxicated" when Karl Tacheny sold him a drink on February 4, 1999. 8. A local authority, such as the City, may impose limitations within its limits beyond those established by state law. Z Minn. Stat. § 3AOA.415 (1998); Saint Paul Legislative Code § 409.12. 3 See Minn. Stat. § 14.57 —14.61, 340A.415 (1998); Saint Paul Legislative Code § 310.05. ° Minn. Stat. § 340A.415 (1998); Saint Paul Legislative Code § 310.06. 5 Minn. Stat. § 340A.501(1998); Saint Paul Legislative Code §§ 310.17 and 409.14. 6 Minn. Stat. § 340A.504, subd. 2(1998); Saint Paul Legislative Code § 409.07(a). ' Minn. Stat. § 340A.502 (1998). a Minn. Stat. § 340A.509 (1998). 5 r��,�� 9. It is a violation of city ordinance to consume or display alcohol at any time when the sale of alcohof is not permitted 9 The City failed to show by a preponderance of the evidence that Karl Tacheny permiited consumption or display of alcohol after 1:00 a.m. on January 29, 1999. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RECOMMENDED: that the violations cited by the City of Saint Paul against the Licensee be DISMISSED in ali respects. Dated this 25th day of June, 1999. • 9 G �� fJ �_ Beverly .! s Heydin Admini ive Law J ge Reported: Tape-recorded (four tapes) MEMORANDUM Although there was circumstantial evidence that led the police officers to conclude that violations governing the operation of the Arlington Pub occurred, there was credible direct testimony to the contrary. For the three violations arising on January 29, 1999, Werring's statement that he had been drinking in the bar was the only evidence in support of the alleged violations. Werring was, by all accounts, extremely intoxicated, and has no recollection of the incident or what he told the o�cer. !n comparison, the other witnesses provided a detailed account of Werring's drinking that evening, and their testimony was cons+stent with Officer Burton's observation of Werring leaving the bar. Although Officer Burton's hypothesis is plausibfe, the testimony of the other witnesses was detailed and consistent with a different concfusion. Neither the pofice nor the City inspectors investigated the matter on the evening Werring was detained, or thereafter. One can not conclude from the testimony of the offcers that the bartender served an "obviously intoxicated" person on February 4, 1999. Tacheny admitted serving Dismuke, but denied that Dismuke was obviously intoxicated when he 9 Saint Paul Legislarive Code § 409.07(c). C q q,�ti�`� was served. The ofiFicers couid oniy testify to what they saw when called to the bar. Although it would be reasonabie to conclude that Dismuke was intoxicated when he entered the bar, that is not the issue to be addressed. The question is whether the bartender served an "obviously intoxicated" person. Tacheny's testimony on this point is credible, and supported by the steps he took when Dismuke and his companion got in an argument. He took away the drinks he had served and told the men to leave the bar. The officers and Tacheny all testified that Dismuke did not have a drink when the police arrived, that Tacheny was surprised to see them and had not called the police, and that Tacheny openly acknowledged that he had served Dismuke a drink. Neither the police nor the licensing inspectors asked Tacheny any questions about Dismuke's condition at the time Tacheny served him. Although several other people were in the bar at the time, none were interviewed. "Obvious intoxication" must be "readily and plainly evident without affirmative effort to perceive it and so clear that the observer would be bound to notice." 10 It does not require "reasonably active observation of his appearance, breath, speech and actions."�� Tacheny openly admitted that he noticed Dismuke and his companion enter the bar and take a seat, and that he asked them to come forward with identification. But he denied observing signs of obvious intoxication. Once the men began to argue, he retrieved the drinks and ejected the men. Although this all occurred within a few minutes, the uncontroverted evidence that Dismuke's companion was gone and that there was no drink in firont of Dismuke, even though Tacheny did not know the police were called, supports Tacheny's testimony. The testimony of the police officers about what they observed was credible. Each of them sized up the situation, based on their training and experience. Their conclusions were neither unreasonable nor inconsistent with their observations. Nonetheless, the detailed testimony of the other witnesses supports a difEerent conclusion. Tacheny, Werring and Doepner were open and straightforward. Although the City asserts that Tacheny may have a motive to lie, nothing in his answers or demeanor suggested that he was lying, nor were his answers inconsistent with the observations by the police, or with other witnesses to the events. Tacheny gave a detailed and credible account of the events that occurred. Mr. Clarence Bailey's testimony was given little weight. He admitted that he was not present at the bar on either January 29 or February 4, 1999. He believes the police unfairly target the bars on Payne Avenue, but the facts of this 10 Mos v. Mjos, 178 N.W.2d 862, 867 (Minn. 1970). �� Id. 7 �a,�� case support the actions of the police. The observations noted in their reports are consistent with the testimony ofi the other witnesses. Nonetheless, their observations alone were insufficient to support a conciusion that the Licensee violated the cited provisions of law. BJH �c�,�c�� OFFICE OF ADMINISTRATIVE HEARINGS � _ � '�_ � FOR THE CO[INCIL OF � ^ � ° - -� THE CTTY OF SAINT PAUL "'. 2 ��r ; 2: 5 g , � ;'� �= ' . . . .:;5 � �,_ ; , In the Matter of the Licenses held by OAH Docket No. 1-2111-12155 � James Bailey, Inc., d/b/a Arlington Pub a/k/a Bailey's Arlington Pub or Bailey's LICENSEE'S FINAL ARGUMENT Pub, For the Premises Located at 721 Payne Avenue, Saint Paul, Minnesota. T'he i,icensee in the above-entitled matter offers the following final argument as a consequence of the hearing held on Tuesday, May 4, 1999, pursuant to a Notice of Hearing dated March 18, 1999. As it did at the hearing, Licensee concedes that matters preliminary to the hearing were conducted in accordance with the law and does not intend to review or rebut those procedures here. Nor is a lengthy recitation of the facts necessary. Therefore, whatever facts are necessary to an understanding of the arguments of the Licensee will be reviewed as a part of the argument presented below. The City alle�ed that two incidents, ene occurring on Jar_uary 29, J 999 and a second occurring on February 4, 1999, serve as the basis for the four alieged violations. Each incident is analyzed in turn below. INCIDENT OF JANUARY 29,1999 The City alleges, based on a police report admitted to evidence and the testimony of police officer Sean Burton, that the Licensee committed the following three violations on January 29: V� �� 1. Sale of Alcohol after 1:00 a.m. in violation of Minnesota Statutes (MSA) Section 340A.504, Subd. 2 and Saint Paul I,egislative Code (SPLC) Chapter 409.07(a). 2. Sale to an Obviouslv Intoxicated Person in violation of MSA Section 340A.502. Consum�tion or Displav of Alcohol at Anv Time When is Not Permitted in violation of SPLC 409.07(c). It attempting to prove its case, the City offers no evidence at a11 based on direct observation of any of the conduct complained o£ The City's entire case is based upon two facts. First, a conversation took place between officer Burton and 3ames Floyd Werring in front of the licensed premises about which conversation officer Burton testified and his report reflects that Mr. Werring responded to a question from the officer by stating that he, Werring, was in the establishment for "last call". Second, the conversation took place, according to the officer's testimony and report at 2:37 a.m. Even if, for purposes of this argument, the Licensee conceded, without rebuttal, both facts presented by the City, the City has failed to dischazge its burden of proof with respect to all three alleged violations. With respect to Counts 1 and 2, there is no evidence of sale of alcohol to Mr. Wemng at all, let alone sale after 1:00 a.m. Nor, with respect to Count 3, is there any evidence in record that there was consumption or display of alcohol after 1:00 a.m., even if there was consumption by Mr. Werring in the establishment. Even imputing that Mr. We�ring's statement to office Burton about last call is evidence that he drank that date in �� /�� the establishment, the City has offered no evidence of sale to Mr. Werring, or sale after 1:00 a.m., or consumption or display after I:00 a.m. Officer Burton conducted no investigation beyond taking Mr. Werring to Detox, an investigation that might have yielded further evidence. The officer testified because of other calls necessitating police attention, neither he nor any other officer was able to do follow up investigation. While assignment of police o�cers is sole]y within the discretion of the City and while, under the circumstances, the failure of officer Burton or other officers to conduct further investigation may be fully understandable, that inability to investigate further does not constitute evidence that the violation occurred. In other words, speculation that other evidence might have been developed had the police been able to conduct further investigation does not constitute proof that such evidence existed. In the absence of that proof, the City has failed to dischasge its burden, regardless of the merits of the reasons given for failing to conduct further investigation. Further, the evidence offered by the Licensee in the form of the testimony of Mr. Werring, Thomas Doepner and Karl Tacheny, the bartender on duty on the night in question, offers both direct and credible evidence that none of the violations occurred. Mr. Doepner's testimony, while indicating that Mr. Werring was exceptionaily intoxicated on the evening in question, cleazly establishes that Mr. Werring spent most of the evening drinking with him, not in the licensed premises, and that he would have arrived at the licensed premises shortly before 1:00 a.m. Mr. Werring's own testimony about his complete lack of inemory of the events of the evening, including an inability to even remember being in the establishment at all or anywhere else after 9:00 p.m., particularly when coupled with the fact that his blood ��,1+�'l alcohol concentration, when measured at the Detox Center, was .20, casts substantial doubt on the credibility and probative value of Mr. Werring's statements to Officer Burton. And, the testimony of the bartender, Kazl Tacheny, who is the only person who directly wimessed and remembers the events of the evening, was credible, consistent with the other testimony and ofFers a view of the events of the evening and the facts pornayed in such a way as to rebut any slight presumption of any violation by the Licensee. Mr. Tacheny testified that Mr. Wening entered the licensed premises shortly before closing by way of a door that would indicate he came from the direction of Mr. Doepner's residence. He further testified that though he knew Mr. Werring, he recognized Mr. Werring's condition and did not serve him alcohol---nar for that matter did Mr. Werring request any alcoholic beverage according to Mr. Tacheny. Mr. Tacheny went on to indicate that he intended to give Mr. Werring a ride home because of his condition, the hour and the weather. He, therefore, left Mr. Werring sleeping at the baz while he conducted with post-closing duties. Accardingly to his testimony, he let Mr. Werring out the front door, immediately across the street from the police substation where he would be fully visible to anyone who might be looking, just before putting away the keys and the monies from the evening sales and just before intending to leave himsel£ Mr. Tacheny's explanation that he took Mr. Werring to the door and let him out as a security measure just before hiding the monies and keys as a security measure is both credible and appropriate. 0 �� Every fact in Mr. Tacheny's testimony of the evening's events is consistent with every other piece of testnnony in the record except Mr. Werring's apparent statement to Officer Burton that he had a drink in the bar at last call. The relative credibility of the testimony of Mr. Tacheny when matched against the hearsay testimony of officer Burton about the testimony of Mr. Wezring and Mr. Wemng's own testimony about his lack of recollection, clearly tilts the scales heavily in favor of assigning a substantially greater probative value to Mr. Tacheny's testimony. The City is expected to argue that Mr. Tacheny, as an employee of the baz, has an interest in the outcome. While uue, this fact does not, in itself, constitute rebuttal of Mr. Tacheny's testimony nor proof that his testamony was not truthful and accurate. To the contrary, if Mr. Tacheny had actually sold alcohol to Mr. Werring and allowed its consumption after 1:00 a.m., one would hardly expect that he would have been so naive as to have ejected an obviously intoxicated person onto a public sidewalk immediately across the street from a police station at 2:37 a.m. Every credible aspect of the testimony argues strongly that the events of that evening transpired precisely in the way Mr. Tacheny reported them. And, therefore, the conclusion that the City has failed to carry its burden with respect to all three of the counts from the incident of January 29, 1999 is urged upon the finder of fact. INCIDENT OF FEBRUARY 4.1999 The City alleges, based on a police report submitted into evidence and the testimony of police officers Urbanski and Johnston, that the Licensee committed the following violation on February 4, 1999: 1. Sale to an Obviouslv Intoxicated Person in violation of MSA Section 340A.502. �q,�� The facts do not appear to be substantially in question in this incident. The only direct evidence based on personal observation of the facts, which may have constituted a violation, is presented in the testunony of the bartender, Karl Tacheny. The evidence offered by the police officer, saue for the alleged statements by Mr. Tacheny as recorded in Officer Urbanski's police report, all are based on heazsay and require substantial inferences and inductive leaps. Mr. Tacheny indicated he served the party, Mr. Dismuke, who the City claims was intoxicated, but under circumstances a result of which he did not make an immediate assessment that the man was intoxicated. His companion ordered arid paid for the drinks for both men. Mr. Tacheny followed procedure and asked for identification from both men, which was shown to him across the bar. He had no substantial conversation with Mr. Dismuke at that time and he testified there was nothing about Mr. Dismuke's activity at the time of the identification check, which led him to conclude that the man was intoxicated. A licensee or agent of the same, such as Mr. Tacheny, does not have an affirmative duty to refrain from selling liquor to a person who bears no signs of intoxication by readily detectable by ordinary observation. Knudsen vs. Peickert, 221 N.�V.2d 78�(Minn.1974); See also Mjos vs. Villaee of Howard Lake, 178 N. W,2d 862 (Minn.1970). According to Mr. Tacheny unrebutted testimony, that is exactly the situation here. And, Mr. Tacheny testifies that shortly after Mr. Dismuke's partner purchased the drinks, he observed a commotion and an ensuing loud argument between the two men. He immediately left his post behind the bar, went to the table where the two were sitting, retrieved the drinks---which he emptied in the bar sink---and ejected both men from the ��.'�� bar. It was at that point that Mr. Dismuke fell and hit his head. Mr. Tacheny helped him into a booth by the door, intending to cali him a cab, when police entered the establishment, presumably in response to a call from a patron on a cell phone. As in the prior incident, there is nothiug inconsistent in Mr. Tacheny's testimony and the police reports or testimony of the o�cers, save for the fact that the police report omits the actions of Mr. Tacheny in retrieving the drinks and ejecting the two men after becoming aware of the azgument. The argument occurred only a short time after the men entered the bar. Further, the fact that the second man wasn't present in the bar when the police arrived, gives credibility to Mr. Tacheny's testimony that he ejected the two. Further, the testimony of the officers that they observed no glasses or bottles in which liquor might be served in the booth in which they found Mr. Dismuke gives credibility to Mr. Tacheny's testimony about how Mr. Dismuke came to be in the booth after falling and the fact that Mr. Tacheny had retrieved the drinks from the two men. Mr. Tacheny acted firmly and immediately upon realizing that there was a problem. He acted in an appropriate manner. There is no evidence that he realized Mr. Dismuke was intoxicated at the time the drinks were sold to his companion. Far from constituting a violation of the law, the actions of Mr. Tacheny are exactly those which should be expected of one in his position upon discovery of any irregularity. There is no evidence in the record that Mr. Tacheny was cognizant that Mr. Dismuke was intoxicated at the time he provided the drinks to Mr. Dismuke's companion. Therefore, particularly in light of Mr. Tacheny's actions upon realizing there was a problem, the fact finder is urged to conclude that there was no violation and that �� the actions of Mr. Tacheny were consistent with the requirements of the cited statutory provision. The testimony of a prior violation at the establishment is not particuiarly relevant for three reasons. One, it did not involve the type of violations alleged in these two matters. Two, Mr. Tacheny was not the party who comm9tted the offense. Three, the prior violation must be judged against a background of nearly twenty of ownership and operation by the current Licensee with no violations whatsoever. Respectfully submitted, Dated: May 18, 1999 �/�-- - S. Mark Vaught Attorney for Licensee Suite 700, Six West Fifth Street Saint Paul, Minnesota 55102-1412 (651)297-6400 (651) 224-8328 (fax) Attorney Reg. No. 131519 .�. 8£6Z �}osauuiW `si�odeauui�j y}nog anuany uo�6u�yseM OOl OOL6 a�mS `aienbg uo�BwyseM 006 s6waea�{ ani�ea�s�uiwpy;o ao�}}p aBpn� nne ani��a�siwwpy �a6uip�aH sauo� �(��ana8 a�qeaouoH ayl a31S3f1CJ3H 3�I�k13S SS31iO4V OOb9�L6Z R 59) ZIbI'ZOI55 E�osauviyl `Ined yuies laaixs i[xji3 xsa� ztS �OOL altns t7277716' A2Kt0716' 1.H�JR�''A � �S OFFICE OF Tf� CITY ATTORNEY Clayton M Robimron, Jr., City Attomey CITY OF SA.INT PAUL Nonrs Coleman, Mayor May 18,1999 The Honorable Beverly Jones Heydinger Administrative Law Judge OfFice of Administrative Hearings 100 Washington Squaze, Suite 1700 100 Washington Avenue South Minneapolis, MN 55401-2138 " _ . , il - - - 'CiviZDivision y ,,� � � ,� OL4('ilyHal! Telephone:651266-87I0 - ., , � �r. t�S iYestKelloggBJvd Facsimile: 6�I 298-3619 Sairst Paul, Minnesota JSIO2 , 1 'i'° �- ..�. _i.I�..iJ RE: In the Matter of the License held by James Bailey, Inc. d/b/a Arlington Pub for the premises located at 721 Payne Avenue, Saint Paul Minnesota OAH Docket #: 1-2111-12155-3 Dear Judge Heydinger: Enclosed please find a copy of the City's Fina1 Argument in the above-entitled matter. A copy has been served upon counsel for the licensee by U.S. mail. I have also enclosed the most recent version of Saint Paul Legislative Code §409.26, which contains the penalty matrix for liquor license violations. Sincerely, � ,� �� Virginia D. Palmer Assistant City Attorney 2� cc: S. Mazk Vaught OFFICE OF THE CITY ATTORNEY ClaytonM Robrnsan, Jr., CiryAltorney �j/) /�' n1 Vl") W CITY OF SAINT PAUL t leman, Mayor ��+r Civil Division 400 City Half 15 i➢est Kellogg Blvd Saint Paul, Minnesola 55102 Telephone: 651266-8710 Facsimile: 651298-5619 May 18, 1999 S. Mark Vaught Attorney at Law Six West Fifth Street, Suite 700 Saint Paul, MN 55102 RE: In the Matter of the License held by James Bailey, Inc. d/b/a Arlington Pub for the premises located at 721 Payne Avenue, Saint Paui Minnesota OAH Docket #: 1-2111-12155-3 Deaz Mr. Vaught: Enclosed and served upon you by U.S. mail, please find a copy of the City's Final Argument in the above-entitled matter. A copy has been sent to you by facsimile as well. Sincerely, d �-��L � �,� Virginia D. Palmer Assistant City Attomey cc: Beverly Jones Heydinger, Administrative Law Judge a� OFFICE OF ADMINISTRATIVE HEARINGS FOR T`HE COUNCIL OF THE CITY OF SA1NT PAUL In the Matter of the Licenses held by James Bailey, Inc., d/b/a CITY' S FINAL ARGiJMENT Arlington Pub for the premises at 721 Payne Avenue, Saint Paul The City, through the Office of License, Inspections and Environmental Protection, seeks adverse action against the licenses held by Arlington Pub for after hours consumption and sale of alcohol to an obviously intoxicated person on January 29, 1999 and sale of alcohol to an obviously intoxicated person on February 4, 1999. The City alleges that on January 29, 1999 at approximately 2:37 a.m. a Saint Paul Police Officer observed an individual walk out of Arlington Pub at 721 Payne Avenue. The person was extremely into�cated and stated to the officer that he had been drinking at the bar, and that it was "last call". He further stated that he had been at the bar drinking after hours on several prior occasions. He was taken to detox, where his blood alcohol registered .20. Sale or consumption of alcohol after hours is a violation of Saint Paul Legislative Code §409.07(a) and (c) and Minn. Stat. § 340A.504. On February 4, 1999, officers were sent to Arlington Pub on a report of a man causing trouble. On arrival they found a man who was extremely intoxicated, passed out at one of the booths. He was transported to detox, where he registered a.25 alcohol concentration. The bartender admitted serving the man, which would be a violation of Minn. Stat. §340A.502. Burden of Proof The CiTy has the burden of proof in this adverse action and must prove its case by a �r�.��1 preponderance of the evidence. In re Kaldahl, 418 N. W.2d 532, 535 (Minn. App. 1988). See, also, Mivu. Rules 1400.7300, subp.5. Under this standard, the City's evidence must lead the �ier of fact to believe that it is more likely than not that the facts are true. If there is the slightest tipping of the scales in favor of the City by credible evidence, then it has proved its case. Tesrimony at the Hearing The City presented the testimony of four witnesses, Kristina Schweinler, a senior licensing inspector from the Office of License, Inspections and Environmental Protection ("LIEP"), and OfFicers Burton, Johnston and L3rbanski, of the Saint Paui Police Department. Ms. Schweinler testified that she reviewed the police reports written by the officers and that she referred the matter to the City Attorney's Office to initiate adverse action because the police reports atleged violations of statutes and ordinances relating to after houts sale or consumption of alcohol, as well as sale of or fiunishing alcohol to obviously intoxicated persons. She fitrther testified that her recommendation for a penalty was to follow the matrix contained in Saint Paul Legislative Code §409.26 for a second offense, because this particulaz establishment had, within the past twelve months, had adverse action for a sale of alcohol to an underage person, also a matrix violation. Officer Burton testified that he is a police officer with the Saint Paul Police Depa_rnnent and that he has patrolled on Payne Avenue for three years. He testified that on January 29, 1999 at approximately 237 a.m., he was in the area backing up officers on another call when he observed an obviously intoxicated man walk out of Arlington Pub. Officer Burton testified that he walked up to the man and asked him if he had been drinking in the baz, and that the man, James Werring, stated, "Yes, it was last call." He also said to the officer that he had been in the bar, drinking after closing, on several prior occasions. The officer then transported Werring to �,�� detox, where his blood alcohol concentration was deternuned to be a.20. Officer Burton also testified that he was in Arlington Pub on Febmary 4, 1999, less than a week later, when police were called because of a man causing trouble. He was present and observed Dwight Dismuke, who appeazed to be passed out in a booth in the baz, and heazd the bartender state that he had served Dismuke at the baz. Officer Urbanski testified that he was on duty on Febniaiy 4, 1999 and was working with Officer Johnston, who was acting as his Field Training Officer. Urbanski had joined the Saint Paul Police Department in September of 1998 although he had priar police experience with the City of North Saint Paul. Officer Urbanksi testified that they were called to Arlington Pub at appro�mately 11:23 p.m. on a person causing trouble. When they arrived they found a man passed out in a booth in the bar. He tried to wake the man for about a minute. Officer Urbanski testified that the man was intoxicated, and that when they took him to detox he had an alcohol concentration of .25. Officer Johnston testified that he was working with Officer Urbanski and that the person in the bar was obviously intoxicated, in that he had problems talking, smelled of alcohol, and could barely stand. He testified that the bartender, Karl Tacheny, said he had served Dismuke one drink and then Dismuke fell off of his bar stool. The licensee presented the testimony of the bar owner, who was not present at the time of the incident, and ttu�ee other witnesses. The owner testified that he has a policy that employees are not to serve anyone who appeazs to be intoxicated nor are they to serve after hours. However, he acknowledged that there aze no formal tra.ining procedures in place. He Yrired Karl Tacheny, a long-time friend of his son, about six months ago. James Werring, the individual involved in the January 29, 1999 incident, testified that he was so intoxicated on the night in quesrion that he does not recall anything. He stated that he had q q.�c�� , no recollection of being in the baz on the night in question, although he did not deny having the conversation that the officer reported. He also testified that he also has no memory of ever being refused service at the baz on any occasion. Thomas Doeppner testified that he was drinking with Werring on the night of January 29, 1999 and that Werring left lus house between 1230 and 12:45. Doeppner lived only a couple of blocks from the baz. The bartender, Kazl Tacheny, testified that he was present at the bar during both incidents. He testified that on January 29, 1999, James Werring came into the baz and asked for a drink, but that he did not serve him because he was obviously intoxicated. However, Tacheny stated that he decided to let Werring stay at the bar because it was pointless to call a cab, because cabs wouldn't come to pick up dnu�k customers, and Tacheny was going to give him a ride home because of the cold. Tacheny testified that he let Werring stay while he closed up but made him go outside while he did the last of the closing for security reasons. When he went outside Werring was gone. Tacheny testified that on February 4, 1999, he was also the bartender. He stated that he did not ca11 the police but was startled when at least six officers burst into the bar and wanted to know what was wrong. He testified that Dismuke entered the bar with another man, that he sold the companion two shots of Christian Brothers, but insisted on ID from both of them. Tacheny testified that Dismuke wasn't stumbling, wasn't showing any signs of being intoxicated and that he had no idea that he was intoxicated. Accarding to his testimony, this was approximately five minutes before the police arrived. Shortly before the police came in, Tacheny testified that he took the drinks away from the two men because the companion began yelling and waving his arxns azound. He testified that Dismuke tripped and fell, hitting his head, before the police arrived. ��.�,��. Argument The City initiated this adverse action based upon two separate police reports of alleged violations of the laws and ordinances relating to sale and service of alcohol, including Muui. Stat. §§ 340A.502 and 340A.504, and Saint Paul Legislative Code §§409.07(a) and (c). The credibility of the witnesses in this matter is instrumental in evaluating the testunony. In evaluating credibility, a fact-finder can look to, among other things, the witnesses': 1) interest or lack of interest in the outcome of the case; 2) their relationship to the parties; 3) their franlaiess and sincerity or lack thereof; and 4) the reasonableness or unreasonableness of their testimony in light of ali the other evidence in the case. Looking first at the testimony by the witnesses for the licensee, it is important to note that Karl Tacheny works for the licensee, and would be subject to criminal prosecution for the incidents about which he testified because service of alcohol after 1:00 a.m. and to an obviously intoxicated person aze both criminal violations. He has a work relationship with the licensee, as weli as being a lifelong friend of the licensee's son. Mr. Werring claims not to know what happened on January 29, 1999, although at the tnne he informed the officer that he had been drinking in the bar after hours, and that he had done so several times in the past. This last statement belies the attempts by the licensee's attomey to azgue that Werring was confused about the nature of the question Officer Burton was asking. While he may have been confused about what rime it was and whether he had just finished drinking or had been drinking before 1:00 a.m., a statement that he drank in the baz on other occasions after closing seems pretty straightforwazd, and lends credence to the argument that he understood that he was being asked about drinking after hours on this occasion. Mr. Doeppner's �� /�� testimony really added nothing to either side - without expert testimony as to alcohol absorption rates and burn-off, it isn't possible to know Werring's likely alcohol concentration after 18 beers over a six hour period or how that relates to testing at a.20 at least two hours after leaving Deoppner's house. Mr. Bailey was not present at the time of either of the incidents, but cleazly has an interest in the outcome. He admits having no formal traiuing process for his employees and cleazly blames the City for his prior violation of selling alcohol to an underage person. On the other hand, the police officers have no known interest in this bar, nor aze they familiar with the license holder. Officer Johnston is an officer with five years experience who is trusted by the Saint Paul Police Deparhnent as a Field Training Officer for new officers. Officer Burton has three years experience with the Saint Paul Police Department and priar experience in California. Officer Urbanski is a fairly new officer to Saint Paul, but has experience in North Saint Paul. Other than a general statement from Mr. Bailey that he believes that the Police Department and the Licensing Office are out to get him, there is nothing in the record to support that the officers or the licensing personnel haue any interest in this bar. Looking next at the reasonableness of the testimony given by Mr. Tacheny regarding the two incidents, it is interesting to note that he stated that he did not call a cab for Mr. Wemng when he entered and was intoxicated because he did not think that a cab would come. He later tesrified that he often calls a cab for an intoxicated person and that they do pick them up from the baz. Furthermore, Mr. Bailey testified that it would not be unusual to have a drunlc person waiting in the bar for a cab to come because they call cabs for them. Mr. Tacheny also chose not to call the police to take Mr. Werring to detox. According to his story, he elected to allow Mr. Werring to wait for him to close up ( a two hour period) so that he could drive him home. Yet when he was ready to do his final closing up, he did not send Werring to wait in his car, nor did aq'�� he close up and leave with him, but sent him outside. Is it reasonable to believe that Mr. Tacheny really had Werring wait for almost two hours rather than simply calling him a cab when he first came in or calling the police because he was so intoxicated? Less than a week later, according to Mr. Tacheny, he served Mr. Dismuke a shot of Chrisrian Brothers Brandy without realizing that Dismuke was into�cated. Tacheny testified that Dismuke and his companion were not in the bar long before the police came in, and the officers testified that Dismuke was obviously intoxicated, slurriug his speech, unable to stand up, smelling of alcohol. Within another five minutes or so they took him to detox, where he was tested and had an alcohol concentration of .25, significantly higher than Werring's had been the week before. Nonetheless, Tacheny testified that he did not realize that Mr. Dismuke was intoxicated. Each of the officers testified that there were signs of obvious intoxication being e�ibited by Dismuke. Tacheny would have you believe that only five to ten minutes eazlier, these same signs (lack of balance, slurred speech, odor of alcohol) were all absent. Is it reasonable to believe that Dismuke only began to show the signs of obvious intoxication after the police arrived or is it more likely that Tacheny ignored the fact that he was intoxicated and served Dismuke? Officer Burton clearly believed that James Werring, although intoxicated, was able to understand and reply to his questions on January 29, 1999, and he testified that he believed that Werring understood that he was asking whether he had just finished drinking at Arlington Pub when he walked outside. Werring's statement that he had been there before, drinking after hours, confirms that Werring did understand the nature of the question Officer Burton was asking. He cleazly related the questions being asked with drinking after hours because of his statement that he had been there drinking after hours before. It is reasonable to believe that Werring had been q�'�� drinking at Arlington Pub after hours on January 29, 1999 and that he had been served despite his level of intoxicarion. Mr. Tacheny essentially admitted that he served alcohoi to Dismuke on February 4, 1999 when he admitted that he sold the two shots of Christian Brothers Brandy to Dismuke's companion. Mivu. Stat. §340A.502 states: 340A.502. Sales to obviously intogicated persons No person may sell, give, furnish, or in any way procure for another alcoholic beverages for the use of an obviously intoxicated person. Mr. Tacheny does not escape responsibility for selling the aicohol simply because it was purchased by the companion. In fact, his testimony that he requested ID from both parties aclrnowledges that he realized he was fiunishing the alcohol to Dismuke, as well as to the companion. The question, then, is whether his testimony that he did not believe Dismuke to be obviously intoxicated is reasonable. Three police officers tesrified that when they arrived, Dismuke was obviously intoxicated - he had troubie speaking, smelled of alcohol and had trouble standing. This was only five minutes after Tacheny served the alcohol to the two men. Within another five to ten minutes, Dismuke was taken to detox, where kus alcohol concentrafion was determined to be .25. It is so unlikely as to be incredible that Dismuke e�ibited none of the signs so appazent to the officers when Tacheny served the brandy to the two men. Conclusion The credible evidence presented by the witnesses far the City supports a finding that on January 29, 1999 at approximately 237 a.m., an hour and a half past closing time, a Saint Paul Police officer found James Werring just leaving Arlington Pub, where he stated that he had been drinking, and that on this occasion and several others that he was able to drink after �� hours in violation of Saint Paul Legislative Code §§ 409.07(a) and (c) and Minn. Stat. §340A.504, subd. 2.. Furthermore, given the individual's intoxicated state, service to him was a violation of Mum. Stat. §340A.502, prohibiting sale of alcohol to an obviously intoxicated person. Less than a week later, three police officers entered the baz and found an obviously intoxicated person sitting slumped in one of the booths, and the bartender admitted that before their arrival he had sold the person a shot of Chrisrian Brothers Brandy. The officers a11 testified that the individual was obviousiy intoxicated, which was confirmed by his alcohol concentration of .25, which was determined shortly after officers took him to detox. The presumptive penalty far a violation of after hours sale of alcohol is established by Saint Paul Legislative Code §409.26 to be a six-day license suspension when the violation is a second appearance in front of Council within a twelve month period. The penalty for the after hours consuxnption or display of alcohol is a four-day license suspension for a second violation, and the presumptive penalty for a violation of sale to an obviously intoxicated person as a second violation is established by Saint Paul Legislative Code §409.26 to be a fine of $1,000. (The fine amount is based upon the seating capacity of an establishment and the seating establishment of Arlington Pub is 0-149. The fact that this is a second violation means that the fine amount is doubled.) Licensee has not contested that this woultl be a second violation within a twelve month period, as set forth in Saint Paul Legislative Code §409.26(e)(1). However, the current situation alleges multiple violations, and Saint Paul Legislative Code §409.26(c) sets forth the procedure by which the penalties are combined and the Council may depart upward. Based upon the foregoing, the City respectfixlly requests that a finding be made that a violation ofMinn. Stat. §§340A.502 and 340A.504 and Saint Paul Legislative Code §§409.07(a) and(c) occurred on January 29, 1999 and that a violafion of Minn. Stat. §340A.502 occurred on q�'�� February 4, 1999 and that a multiple day closure or a combination of closure and fine be the appropriate penalty. Dated: May 18, 1999 � /:. . „�„�,� �� L, �� Virginia D1 Palmer (#128995) Assistant City Attorney 400 City Hall 15 W. Kellogg Boulevard Saint Paul, MN 55102 (651) 266-8710 /^t�/�T� f § 40925 LEGISLATIVE CODE ence for at least three (3) yeats, or a political committee registered under Minnesota Statutes, Section 10A.14, may obtain an on-sale license to sell wine and strong beer not e%ceeding fourteen (14) percent alcohol by volume for consumption on the licensed premises only. The fee for such li- cense shall be established by ordinance as pro- vided in section 310.09(b) ofthe Legislative Code, and such license may authorize the on-sale of wine for not more than four (4) consecutive days. The city shall not authorize more than three (3) four-day, four (4) three-day, six (6) two-day or twelve (12) one-day temporary licenses, in any combination not to egceed twelve (12) days per yeaz for the sale of wine to any one (1) location within the city for a twelve-month period. The city may not issue mor2 than one (1) such license to any one (1) organization or politieal committee, or any one (1) location, within a thirty-day period unless the licenses are issued in connection with an event officially designated a community festi- val by the municipality. (b) Liquor Zicenses. Notwithstanding any other provision of this chapter, a club or charitable, religious or other nonprofit organizatiun in exist- ence for at least three (3) years may obtain an on-sale license to sell intosicating liquor for con- sumption on the licensed premises only and in connection with a social event within the city sponsored by the licensee. The license may pra vide that the licensee may contract for into�cat- ing liquor catering ser�ices with the holder of a full yeaz on-sale intoxicating liquor licensa issued by the city. 'I'he fee for such license shall be forty-one dollars ($41.00) per day, and such li- cense shail not authorize the on-sale of intoaucat- ing liquor for more than four (4) consecutive days. The city shall not authorize more than three (3) four-day, four (4) three-day, siY (6) two-day, or twelve (12) one-day temporary licenses, in any combination not to exceed twelve (12) days per year for the sale of into�cicating liquor to any one (1) location within the city for a twelve-month period. The city may not issue more than one (1) such license to any one (1) organization or politi- cal committee, or any one (1) location, within a thirty-day period unless the licenses are issued in connection with an event officially designated a community festival by the municipality. (c) Apptic¢tion. Application for such tempo- rary licenses shall be made on forms provided by the inspector and shall contain such information as specified by the inspector, ;ncb�ding the follow- mg_ (1) The name, address and purpose of the organization, together with the names and addresses of its officers, and evidence of nonprofit status or of its status as a club under sect�on 409.02 above. (2) The purpose for which the temporary li- cense is sought, together with the place, dates and hours during which wine or intoxicating liquor will be sold. (3) Consent of the owner or manager of the premises or person or group with lawful responsibility for the premises. (4) Evidence that the manager or director has received alcohol awareness training provided by a bona fide instructor oz the city. (d) Applic¢tion of other prouisions of this ch¢p- ter. No other provisions of this chapter shall apply to licenses granted under this section, except sections 409.06, 409.07, 409.08 (except clauses (11) and (12)), and sections 409.09 through 409.14. (e) Cl¢ss ZI Zicense. Notwithstanding any other provision of law to the contrary, the temgorary wine and liquor licenses provided in this section shall be administered as a Class II license and subject to the provisions of these chapters govem- ing Class II licenses. The inspector shall make all referrals as provided by section 310.Q3, but the director may require the inspector to issue such license before receiving any recommendations on the application thereof if necessary to issue such license on a timely basis. (Ord. No. 17459, § 1, 5-28-87; Ord. ti�o. 17569, § 4, 6-7-88; Ord. No. 17853, § 1, 7-18-91; C.F. 1Vo. 94-1561, § 2, 11-16-94; C.E No. 97-566, § 1, 6-4-97; C.F. No. 98-550, § 1, 7-22-98) Sec. 40926. Intoxicating liquor, noninto�- cating malt liquor, presumptive penalties. (a) Purpose. The purpose of this section is to establish a standard by which the city council determines the length of license suspensions and Supp. \o. 40 2196 . the propriety of revocations, and shall apply to all on-sale and off-sale licensed premises for both intofficating liquor under this chapter and nonin- to�cating liquor under Chapter 410. These pen- alties aze presumed to be appropriate for every case; however the council may deviate therefrom in an individual case where the council finds and determines that there exist substantial and com- pelling reasons making it more appropriate to do �pe of Volation (1) Commission of a felony related to the licensed activity. (2) Sale of alcohol beverages while license is under suspension. (3) Sale of alcoholic beverages to underage person. (4) Sale of alcoholic beverage to intoxicated person. (5) After hours sale of alcoholic beverages. (6) After hours display or consumption of alcoholic beverage. (7) Refusal to allow city inspectors or police admission to inspect premises. (S) Illegal gambling on premises. (9) Failure to take reasonable steps to stop person from leaving premi�es with alco- holic beverage. (10) Failure to make application for license renewal prior to license expiration date. (11) Sale of intoxicating liquor where only license is for nonintoxicating liquor. (12) Failure to comply with statutory, and ordinance requirements for liability in- surance. For those violations which occur in on-sale intoxicating liquor estahlishments listed above in numbers (3), (4), (5), (6), (8), (9), (10) and (11), Supp. No. 40 aa��`�� LICENSES § 409.26 so. When deviating from these standazds, the council shall provide written reasons that specify why the penalty selected was more appropriate. (b) Presumptiae penalties for uiolations. Ad- verse penalties for convictions or violations shall be presumed as follows (unless specified, num- bers below indicate consecutive days' suspension): Appe¢rance Ist 2nd 3rd 4th Revocation NA NA Revocation NA NA Fine Fine Fine Fine 5 Fine Fine Fine Fine 10 NA NA Fine Up to Revocation 18 Fine ITp to Revocation 18 6 18 Revocation 4 12 Revocation 15 Revo- NA cation 6 18 Revocation 4 12 Revocation 6 18 Revocation 6 18 Revocation R e - NA NA voca- tion which would be a first appeazance not involving multiple violations, a fine shall be imposed accord- ing tA the following schedule. For those violations 2197 �� § 40926 LEGISL.9TIVE CODE which occur in on-sale intoxicating liquor estab- lishments listed above in numbers (3) and (4), �vhich would be a second appearance notinvolv- ing multiple violations, the fine amounts set forth below shall be doubled. Seating capacity 0-149. . . _ . . .. . $ 500.00 Seating capacity 150 and over ... 1,000.00 For those violations which occur in off-sale into�cating liquor esta6lishments listed ahove in numbers (3), (4), (5), (6), (8), (9), (10) and (11), which would be a first appearance not involving multiple violations, a fine shall be imposed accord- ing to the following schedule, based on the square footage of the retail azea of the establishment. For those violations which occur in off-sale intoacicat- ing liquor establishments listed above in numbers (3) and (4), which would be a second appeazance not involving multiple violations, the fine amounts set forth below shall be doubled. 5,000 square feet or less . . . . . . . . $ 500.00 5,001 squaze feet or more ....... 1,000.00 Alicensee who would be making a first appear- ance before the council may elect to pay the fine to the Office of License, Inspections and Environ- mental Protection without an appearance before the council, unless the notice of violation has indicated that a hearing is required because of circumstances which may warrant deviation from the presumptive penalty. Payment of the recem- mended fuxe will be considered to be a waiver of the hearing to which the licensee is entitled, and shall be considered an "appearance" for the pur- pose of determining presumptive penalties for subsequent violations. (c) Multiple uiol¢tions. At a licensee's first appearance before the city council, the council shall consider and act upon all the violations that have been alleged and/or incorporated in the notices sent to the licensee under the administra- tive procedures act up to and including the formal notice of hearing. The counc9l in that case shall consider the presumptive penalty for each such violation under the "ls Appearance" column in paragraph (b) above. The occurrence of multiple violations shall be grounds for departure from such penalties in the council's discretion. �olations occuning after the date of the notice of hearing that aze brought to the attention of the city attorney prior to the hearing date before an administrative law judge (or before the council in an uncontested facts hearing) may be added to the notice(s) by stipulation if the licensee admits to the facts, and shall in that case be treated as though part of the "ls` Appeazance." In all other cases, violations occurring after the date of the formal notice of hearing shall be the subject of a separate proceeding and dealt with as a"2aa Appearance" before the council. The same procedures shall apply to a second, third or fourth appeazance before the council. (d) Subsequent appear¢nces. Upon a seeond, third or fourth appearance before the council by a garticulaz licensee, the council shall impose the presumptive penalty for the violation or viola- tions giving rise to the subsequent appearance without regard to the particular violation or vio- lations that were the subject of the first or prior appearance. (e) Comput¢tion of time: (1) If a licensee appears before the council for any violation in paragraph (b) where that violation has occurred within twelve (12) calendar months after the first appeaz- ance of the same licensee for a violation listed in paragraph (b) above, the current appeazance shall be treated as a second appearance for the purpose of detezmin- ing the presumptive penalty. (2) If a licensee has appeared before the coun- cil on two (2) previous occasions, both for violations listed in pazagraph (b) above, and if said licensee again appears before the council for a violation listed in said paragraph (b), and if the current violation occurred within eighteen (18) calendaz months of the violation that gave rise to the first appaarance before the council, then the current appearance shall be treated as a third appeazance for the purpose of determining presumptive pen- �tty. (3) If a licensee has appeared before the coun- cil on three (3) previous occasions, each Supp. No. 40 2198 q`�'�`�� LICENSES for violation listed in paragraph (b) above, and if said licensee again appears before the council for a violation listed in para- graph (b) above, and if the current viola- tion occuned cvithin thitty (30) calendaz months of the violation that gave rise to the first appeazance, then the current appeazance shall be treated as a fourth appeazance for the purpose of determin- ing the presumptive penalty. (4) Any appearance not covered by subsec- tions (1), (2) or (3) above shall be treated as a first appearance. In case of multiple violations in any appearance, the date to be used to measure whether twelve (12), eighteen Q8), or thirty (30) months have elapsed shall be the date of the violation last in time at the first appeazance, and the date of the violation first in time at any subsequent appeazance. (fl Other pen¢lties. Nothing in this section shall restrict or 1'unit the authority of the council to suspend up to sixty (60) days, revoke the license, or impose a civil fine not to exceed two thousand dollars ($2,000.00), to impose condi- tions or take any other adverse action in accor- dance with law, provided, that the license holder has been afforded an opportunity for a hearing in the manner provided for in section 310.05 of this Code. (g} Effect of responsible business pr¢ctices in determining pen¢Zty. In determining the appropri- ate penalty, the council may, in its discretion, consider evidence submitted to it in the case of uncontested adverse actions or submitted to a hearing exaininer in a contested hearing upon which findings af fact have been made that a licensee has £ollowed or is likely to follow in the future responsible business practices in regard to sales to intoxicated persons and sales to minors. (1) For the purposes of service to intoxicated persons, evidence of responsible business practices may include, but is not lunited to, those policies, procedures and actions that are implemented at time of service and that: a. Encourage persons not to become into�cated if they consume alcoholic beverages on the defendant's prem- ises; §40926 b. Promote availability of nonalcoholic beverages and food; c. Promote safe transportation altema- tives other than driving �vhile intox- icated; d. Prohibit employees and agents of defendant from consuming alcoholic beverages while acting in their ca- pacity as employees or agents; e. Estabiish promotions and mazket- ing efforts that publicize responsible business practices to the defendant's customers and community; £ Implement comprehensive training procedures; g. Maintain an adequate, trained num- ber of employees and agents for the type and size of defendant's busi- ness; h. Establish a standardized method for hiring qualified employees; i. Reprimand employees who violate employer policies and procedures; and j. Show that the licensee has enrolled in recognized courses providingtrain- ing to self and one (1) or more em- ployees of the licensed establish- ment in regard to standards for responsible liquor service. (2) For the purposes of service to minors, evidence ofresponsible business practices may include, but is not lunited to, those listed in subsection (1) and the following: a. Management policies that are imple- mented at the time of service and that ensure the egamination of proof of identification (as established by state law) for all persons seeking service of alcoholic beverages who may reasonably be suspected to be minors; b. Comprehensive training of employ- ees who are responsible for such eazamination regarding the detection of false or altered identification; and c. Enrollment by the licensee in zecog- nized courses providing training to Supp. No. 40 219$.1 ��i�� § 409.26 LEGISLATIVE CODE self and one (1) or more employees of the licensed establishment in regazd to standards for responsible liquor service. (Ord. No. 17556, § 1, 4-28-86; Ord. No. 17657, § 14, 6-8-89; Ord. No. 17675, § 1, 8-22-89; Ord. No. 17694, § 2, 11-7-89; Ord. No. 17756, § 1, 8-7-90; Ord. No. 17924, §§ 2, 3, 5-7-92; C.F. No. 92-1929, § 1, 2-9-93; C.F. No. 97-1445, § 1, 12-30-97; C.F. Iso. 98-866, § 1, 11-4-98) Chapter 410. Noninto�cating Malt Liquor�` Sec. 410.01. License required; definitions; ex- ceptions. (a) No person shall sell nonintoxicating malt liquors at retail in Saint Paul without a license. (b) On-sale licenses shall permit the licensee for the sale of said nonintoxicating malt liquors to sell such for consumption on the premises. On- sale licenses shall be granted only to restaurants, hotels, bona fide clubs, establishments for the exclusive sale of nonintoaucating malt beverages and establishments licensed for the exclusive sale of intoxicating liquors. The term "bona fide clubs" shall include private clubs licensed under former Chapter 404 of this Code so long as they meet the requuements of Minnesota Statutes, Section 340A.101, subsection 7. (c) Off-sale licenses shall permit the licensee of such nonintoxicating malt liquors to sell same in original packages for consumption off the prem- ises only. td) Nothing herein contained shall be con- strued to prohibit the sale and delivery in original packages directly to the consumer by the manu- facturer or distributor of noninto�cating malt liquors. (e) No off-sale license shall be issued for any place where noninioxicating malt beverages shall be sold for consumption on the premises. •Cross references—Liquor and beer regulations gener- ally, 2Stle XXN; intoxicating ]iquor, Ch. 409; use of beer and into�cating liquor protubited in motion picture drice-in the- atres, § 416.06(b). (fl ��Nonintoxicating malt liquor" is any fer- mented malt liquor, potable as a beverage, con- taixung not less than one-half of one percent (�/z of 190) alcohol by volume nor more than three and tcvo-tenths (3.2) percent alcohol by weight. (Code 1956, §§ 310.01, 310.17, 31020; Ord. No. 17676, § 8, 8-24-89) Sec. 410.02. Fees. Before the filing of an application for either of the licenses hereinbefore provided for, tne appli- cant shall deposit with the license inspector the sum of two hundred fifty dollars ($250.00) if the application is for an on-sale license, and the sum of fifty dollars (�50.00) if the application is for an off-sale license, and the inspector shall thereupon deliver to such applicant duplicate receipts there- for, containing a statement of the purpose for which such deposit was made, and one (1) of said receipts shall be attached to and filed with said application. (Code 1956, § 310.03; Ord. No. 16843, 10-20-81) Sec. 410.03. Licensing requirements. (a) Applic¢tion. Any person desiring either of the licenses as hereinbefore described shall first make an application therefor to the council of the City of Saint Paul by filing with the inspector of said city for presentation by him to the council of an application in writing therefor, which said application shallset forth with reasenable accu- racy the name and place of residence of the applicant; the exact location of the place at which the applicant proposes to carry on the business of selling nonintozicating malt liquors; and whether or not he has at any time previous to the date thereof been engaged in said business or in the business of selling foodstuffs in the City of Saint Paul, and if so, when and where. Said application shall be signed by the applicant in person or by an officer of the club seeking said license or by an officer of the corporation seeking said license, and when received by the inspector shall be by him placed on file, and the name of the applicant shall be by him registered in a book of registration to be kept in the office of said inspector for that pur- pose; procided, hocvever, that said inspector shall Supp. No. 40 21982 aoo cr� xatt & counxo�e 15 W. Kellogg Boulevard Sairst Paul, MN 55102 � CITY OF SAINT PAUL OFFICE OF THE CITY AITORNEY -1 .<<<. . ....<< � � The Honorable Beverly Jones Heydinger Administrative Law Judge Office of Administrative Hearings 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, MN 55401-2138 ---_� � s OFFICE OF ADMINISTRATIVE HEARINGS FOR THE COUNCIL OF THE CITY OF SAINT PAUL In Re T`he Licenses He1d By James Bailey, Inc. d/b/a Arlina on Pub CITY'S PROPOSED EXHIBTTS May 4, 1999 �� TO: Judge George A. Beck, Admnustrarive Law Judge, O�ce of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401 The following consfitutes a list of the City's proposed eafhibits for fhe Administrafive Hearing on May 4, 1999. Exhibit No. E�. No. 1 E�. No. 2 E�. No. 3 E�. No. 4 Exh. No. 5 Description Police Report CN 99-013-Ob3, dated January 29, 1999 (1 p.); Police Report CN 99-016-294, dated February 4, 1999 (1 p.); License Information Report, dated Februuy 12, 1999 (12 pp.); Notice of Violation, dated February 18, 1999, with �davit of Service � PP•)> Notice of Hearing, dated March 1&, 1999, with Affidauit of Service (4 pp.}. �c�—Y' � q �,1,�1 Also attached please find courtesy copies of appiicable St. Paul City ordinances: St. Paul Legislative Code § 310.05 St. Paul Legislative Code § 310.06 St. Paul Legislative Code § 310.17 St. Paul Legislative Code § 409.07 Minn. Stat. §340A.502 Minn. Stat. §340A.504 Respectfully submitted this 4th day of May, 1999. -- 7./ o,..�...� 1 t�c��, R Virginia Palmer Assistant City Attorney Office of The City Attorney 400 City Hall 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 (612)266-8710 Pa9e �of�_ ST. PAUL POLICE DEPARTMENT ��gt � D� GENERAL REPOpT �•v r� 3 Occurrad � At Q BstwNn: �k � � � �,�o - ra �o s�e�e: "_ �A hrs, on and hrs. on Crim� I.pb � i�¢� Property Room SQD 3(`1 S L��z� W�=Lc= o� �ou �A7�6� d1:��c1� A� ad��ousC� �7ox�c�TE�? W1�•• wAZ� ov� c� �ATLE�'� �1,� � - o-� ; t�� coK.�E oE �A �ti� � ��.�-�,� I�RNA f} o a57 f�.w�. oa )-a 9- t� s s , v��z� �� (� w�: s z0'� As: %JE��s,.�(p �Av�ES ��.o°� )-31 , 4�3��, 51 . �t.�R�Y ;'�ACC.�. .-� �5�e1? /-1 rv� � � � WA S � ��,��,1� � S-� i H� l3�� AT -T� -� 5 Ts,�.� A�� !� sAs�j ' Y�s,r wAS L�+sr�ACC.: � O�czr�E� - Ta Ti..A�s�o� �.J��S,�� Tp �t To�. 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' m . �� AN N � � A 7� tC �3 � m � � � � � � � � � � � , � 0 3 n m m m � 0 D r , � � _ N N 7 � O z 3 � T � A m v 0 � v m m A > N O M ..ti N OFFICE ^F THE CITY ATTORNEY C(m>on i brnson, Jc. Cip� drtorney� CITY OF SAINT PAUL Form Coleman. dlapor February 18, 1499 Owner/Mana�er Arlington Pub 721 Payne Avenue Saint Paul, Minnesota �S101 cir;tDirrsron aonc;� xou 15 ICest f:e(logg Blvd. Sainr Paul dlinnesota 5570? NOTICE OF VIOLATION RE: All licenses held by James Bailey, Inc. d/b/a Arlington Pub for the premises located at 721 Payne Ave. in St. Paul License ID No.:16443 Dear Sir/Madam: ��Z�� The D'uector of the O�ce of License, Inspections and Envizonmental Protection will recommend that adverse action be taken against your licenses based on the following information: On January 29,1999, at approaimately 2:37 a.m. a Saint Paul Police Officer observed an individual walk out of Arlington Pub, located at 721 Payne Avenue. The person appeared to be extremely intoxicated. The officer asked if he had been drinking at the bar, and the individual responded that he had been drinking there and it was "last call". The individual was transported to detox, where he regisfered a.20 alcohol concentration. This conduct is in violation of Minn. Stat. §340A.504, subd. 2 and Saint Paul Legislative Code §409.07(a), prohibifing the sale of alcohol after 1:00 am.; Minn, Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person; and Saint Paul Legislative Code §409.07(c), prohibiting the consumption or display of alcohol at any time when the sale is not permitted. On February 4,1999, at approximately 12:23 a.m., tt��o police officers were sent to Arlington Pub on a report of a man inside causing problems. On arrival, they observed an individual �rho appeared to be very intoxicated. They spoke to the bartender, whd admitted that he had served the individual a drink. This individual was transported to defox, where he registered a.25 alcohol concentration. This is a violation of Minn. Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person. r E� Telephone: 651166-8710 Fncsimile: 65! ?98-56I9 -�'__!__ ❑ _ James Bailey, Inc. d/b/a Arlington Pub _ City's Exh. No. 4 Page 2 Arlington Pub February 18, 1999 � 4�� Since this incident occurred ��ithin twel� months of your prez violation, this incident �i constitute a"2nd Appearance" for the purpose of determining the appropriate penalty. In addition, since this incident actualiy invol��ed multiple violations, the City Council may, at its discretion, depart from the presumptive penalties identified in Saint Paul Legislative Code §409.26. The licensin� office w111 recommend a ten day suspension of all licenses. If you do not dispute the above facts, but w�ish to have a public hearin� before the Saint Paul City Council, you will need to send me a letter �� a statement admitting the violations and requesting a hearing by Monday, Mazch 1, 1999. The matter �ill then be scheduled before the City Council for a public hearing to determine what penalty, if any, to impose. You will have an opportunity to appear before the Council and make a statement on your own behalf as to the penalty to be imposed. If you do dispute the above facts, a hearing w be scheduled before an Administrative Law Judge. At that hearing both you and the City will be able to appear and present witnesses, evidence, and cross-examine the other's c�ztnesses. The St. Paul City Council wzll ultimately decide the case. Please let me know in writing no later than Monday, Mazch 1, 1999 how you wish to proceed. Tf you have not contacted me by Monday, March 1,1999, I will assume that you are not contesring the facts and will schedule this matter for a hearing before the City Council. If you have any questions, feel free to contact me at 266-8710. Sincerely, ,. _��ucw� ��c.��-t/� Virginia D. Palmer Assistant City Attomey cc: Robert Kessler, D'uector of LIEP Christine Rozek, Deputy Director of LIEP Bruce Sylvester, Community Organizer, Payne Phalen Dist. 5 Planning Council, 1014 Payne Ave., St. Paui, MN 5� 101 �y/ l in � � w STATE OF MINNESOTA ) ) SS. COUNTY OF RAMSEY AFgIDAV2T OF SERVICE BY MAIL JOANNE G. CLEMENTS, being Pirst duly sworn, deposes and says that on February 19, 1999, she served the attached NOTICE OF VIOLATION on the following named person by placing a true and correct copy thereof in an envelope addressed as follows: Owner/Manager Arlington Puh 721 Payne Avenue St. Paul, MN. 55101 (which is the last known address of said person) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 19th day of Febr�ry, 1999. Notary PETER P.PANGBORN NOTAAY PUBLIC b�. E�tr&v Jan. 31. 200( OFFICE O� "'88 CITY ATTORNEY QaytonM. ,inson,lr.,CiryAtforney CITY OF SAINT PAUL �vi[Division Norm Coleman, Mayor 400 Gry Ha!! IS WesY Ke[loggBlvd SaintPau! Minnesota5510? Mazch 18, 1999 NOTICE OF HEARING Mazk Vaught Attorney at Law Six West Fifth Street, Suite 700 Saint Paul, Minnesota 55102 q q,�� Telephnne: 651266-87Z0 F¢csimile: 65l 298-5619 RE: All licenses held by James Bailey, Inc. d/b(a Arlington Pub a/k/a Bailey's Baz for the gremises located at 721 Payne Ave. in St. Paul License ID No.: 16443 Our File Number: G99-0056 Deaz Mr. Vaught: � Please take notice that a hearing wiil be held at the followin� time, date and place conceming all licenses for the premises stated above: Date: Tuesday, May 4,1999 Time: 9:30 a.m. Place: Room 41 St. Paul City Hall 15 W. I{ellogg Blvd. St. Paul, MN. 55102 The hearing will be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: Name: George A. Beck Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, iVl�i T. 55�01 Telephone: 612-341-7601 J � James Bailey, Inc. d/b/a Arli City's Exh. No. 5 � �� Pub — �� The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse action agauist such licenses, under Chapter 310, inciuding sections 310.05 and 314.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non- intoxicatin� liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penalries or conditions. Evidence will be presented to the jud�e which may lead to adverse action against all the licenses you hold at the above premises as follows: On January 29, 1999, at approximately 2:37 a.m. a Saint Paut Police Officer observed an individuai walk ont of Arlinb on Pub, located at 721 Payne Avenue. The person appeared to be extremely intoxicated. The officer asked if he had been drinking at the bar, and the individual responded that he had been drinking there and it �vas "last call". The individual was transported to detox, where he registered a.20 alcohol concentration. This conduct is in violation of Minn. Stat. §340A.504, subd. 2 and 5aint Paul Lepislative Code §409.07(a), prohibiting the sale of alcohoi after �:00 a.m.; Minn. Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person; and Saint Paul Legislative Code §409.07(c), prohibiting the consumprion or display of alcohol at any time when the sale is not permitted. On February 4,1999, at approximately 12:23 a.m., two police officers were sent to Arlington Pub on a report of a man inside causing problems. On arrival, they observed an individual who appeared to be very intoxicated. They spoke to the bartender, who admitted that he had served the individual a drink. This individual was transported to detos, tvhere he re� stered a.25 alcohol concentration. This is a violation of Minn. Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person. The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrative La�v Judge will have all parties identify themselves for the record. The City will then present its witnesses and evidence each of whom the licensee or attomey may cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the City's attomey may cross-examine. The Administrative Law Tudge may in addition hear relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceedin�; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concludine azguments may be made by the parties. Followin� the hearing, the Judse will prepaze Findings of Fact, Conclusions of Law, and a specific recommendation for action to be taken by the City Council. Notice of Hearing = Page 2 �c�.��► You should brina to the hearing all documents, records and witnesses you will or may need to support your position. Subpoenas may be available to compel the attendance of witnesses or the production of documents in confomuty with Minnesota Ru1es, part 140�_7�00. If a stigulation or agreement can be reached as to the facts, that stipulation will be presented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. If the Iicensee or his representative faiis to appeaz at the hearin" their ability to challenge the allegations will be forfeited and the allegarions against them which have been stated earlier in this notice may be taken as true. If non-public data is received into evidence at the hearing, it may become public unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. If you have any questions, you can call me at 266-8710. Very tnxly yours, �/� aC�� Virginia D. Palmer Assistant City Attorney cc: Nancy Thomas, Office of Adminisuative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, S10 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Bruce Sylvester, Community Organizer, Payne Phalen Dist. 5 Plauning Council, 1014 Payne Ave., St. Paul, NN 5� 101 ?iotice of Aearing -� Page 3 G`�"�� STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY AFFIDAVIT OF 5ERVICE BY MAIL JOANNE G. CLEMENTS, being £irst duly sworn, deposes and says that on March 19, 1999, she served the attached NOTICE OF HEARING on the following named attomey by placing a true and correct copy thereof in an envelope addressed as follows: Mr. Mark Vaught Attorney at Law Six West Fifth Street, Suite 700 St. Paul, MN. 55102 (which is the last known address of said attorney) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. �� _—.,� Subscribed and sworn to before me this 19th dav of�FiazEi� 1999 . .�y = " �1 April 30, 1999 STATE OF MIN1�iESOTA OFFICE OF ADMIPIISTRATLVE HEARINGS 100 Washington Square, Suite 170U 100 Washington Avenue South Minneapol'�s, Minnesota 55401-2138 VIA FAX AND MA1L Virginia D. Palmer Ass+stant Gity Attorney 400 City Half 15 West Kellogg Boutevard St. Paul, Minnesota 55102 FAX: (651) 298-5619 Mark Vaught Attomey at Law Six West Fifth Street, Suite 70p St. Paul, Minnesota 55102 FAX: (651) 224-8328 q�'�'�� RE: In the Matter of the Licenses Heid by James Bailey, fnc., d/b/a Arlington Pub a/k/a Bailey's Bar for the Premises Located at 721 Payne Avenue, St. Paui, Minnesota; OAH Docket No. 1-2111- 12155-3. Dear Counsel: Due to a conflict in my schedule, the above matter wi11 be heard by Administrative Law Judge Beverly Jones Heydinger. Her telephone number is (612) 341-7606. The time, date and piace of the hearing remain the same. GAS:ic cc: Docket Clerk Sincer ly, �/�`°'� ( "`"� . ` -- �-1 � GEORGE A. BECK Administrative Law Judge Telephone: 612/341-7601 Providiog �mpaNal Heanngs for Government and Citizens An Equai Opportuniry Employer Administrative Law Section & Administrative Services (6'12) 34b7600 � TDD No. (612) 3A1-7346 � Fax No. (612} 349-2665 r - it 1 _ �* -V _:�� = `� :<�1=� y:� �C�-� t� � STATE OF MINNESOTA OFFICE OF ADMII�iISTRATIVE f�ARII�TGS HEARING SLTBPOENA TO: Police Officer Sean Burton St. Paul Police Department 100 East 11 Street St. Paul, Minnesota 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Administrative Law Judge George A. Beck of the Oifice of Administrative Hearings of the State of Minnesota, at St. Paul City Hall, Room 41, 15 West Kellogg Boulevard, in the City of St. Paul, Ramsey County, Minnesota, on the 4th day of May, 1999 at 9:3a o'clock in the forenoon, to appear as a witness in the matter of Licenses held by James Baily, Inc. d/b/a Arlinaton Pub a/k!a Sailey's Bar for the Premises located at 721 Payne Avenue, St. Paul, Minnesota: OAH Docket No. 1-2111-12155-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chiefi A inistrative Law Judge, at Minneapolis, Minnesota this 30th day of Ap il, 999. �1,... t � , � r C�`�l�l-�i KE N TH A. NICKOLAI / �, Chief dministrative Law Judge �`"1 612/341-7600 Subpoena requested by: Virginia Palmer, (651) 266-8710 � �,� �� . . �� . • �� .�_._ y��r-�_��'_ • • `1 1 ., � ..� � _-�'��- y'` � ' � , - TO: Police Officer Jason Urbanski St. Paul Police Department 100 East 11�' Street St. Paul, Minnesota 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Adm+nistrative Law Judge George A. Beck of the O�ce of Administrative Hearings ofi the State of Minnesota, at St. Paul City Hall, Room 41, 15 West Kellogg Boulevard, in the City of St. Paul, Ramsey County, Minnesota, on the 4th day of May, 1999 at 9:30 o'ciock in the forenoon, to appear as a witness in the matter of Licenses held b r�James Bailey Inc. d/b!a Arlinqton Pub a/k/a Bailev's Bar for the Premises located at 721 Pavne Avenue, St. Paul. Minnesota• OAH Docket No. 1-2111-12155-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chief Administrative Law Judge, at Minneapolis, Minnesota this 30th day of Apri1, 1999. �,�. �'`�� - l�� < <�� KENNE H A. NICKOLAf � � � �� Chief Administrative Law Judge 612/341-7600 Subpoena requested by: Virginia Palmer, (651) 266-8710 � - ��,�� , y ... �-'�-�`�v� -�.= _v:; " <�1:� - STATE OF MINNESOTA OFFICE OF ADMIlVISTRATIVE HEARINGS HEARING SiTBPOENA TO: Police Officer Joe� Johnson St. Paul Police Department 100 East 11 Street St. Paul, Minnesota 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Administrative Law Judge George A. Beck of the Office of Administrative Hearings of the State of Minnesota, at St. Paul City Hall, Room 41, 15 West Kelfogg Soulevard, in the City of St. Paut, Ramsey County, Minnesota, on the 4th day of May, 1999 at 9:30 o'clock in the forenoon, to appear as a witness in the matter of Licenses held � James Bailev, Inc. d/b/a Arlincaton Pub a/k/a Baifev's Bar for the Premises located at 721 Pavne Avenue. St. Paul. Minnesota• OAH Docket No. 1-2111-12155-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chief Admirr�'strative Law Judge, at Minneapolis, Minnesota this 30th day of Apr'I, 19�9J. �t"• (� . ��: •.� KEf�1SJE�H A. NICKOLAI ChiefA ministrative Law Judge 612/341-7600 Subpoena requested by: Virginia Palmer, (651) 266-8710 � - �_1!� OFFICE OF THE CITYATTORNEY Clayton M Robinson, Jr., CiryAttorney CIT'Y OF SAINT PAiJL ' '_- ': ;� ! ,:' ` �' Norns Coleman, Mayor _� �,';C 2� �;' �� CiviZDivision 400 Ciry Hall IS West Kellogg Blvd Saint Pau1, Minnesota 55102 qq-Z�� Telephone: 612 266-87I0 Facsimile: 612 298-5679 _-.- !(Yi(�' �;�y „C:1�... � JS Apri127, 1999 VIA FAX AND U.S. MAIL Judge George Beck c% Louise Cooper Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, Minnesota 55401-2138 RE: Licenses held by James Bailey, Inc. d/b/a Arlington Pub a/k/a Bailey's Bar for the premises located at 721 Payne Ave. in Saint Paul License ID No.: 16443 Our File Nuxnber G99-0066 Dear Judge Beck: The purpose of this letter is to request subpoenas pursuant to Minnesota Rules, part 1400.7000 relating to the above-mentioned contested case hearing that is scheduled to be heard before you on Tuesday, May 4, 1999. This request is made on behalf of Ms. Virginia Palmer, the attomey assigned to this matter. The City of St. Paul licensing division will be calling these wimesses to testify regarding the incidents which serves as the basis for the action against the licenses of James Bailey, Inc. d/b/a Arlington Pub a/k/a Bailey's Bar. In order to ensure that these individuals will be in attendance to tesrify, the City of St. Paul requests from the State Office of Administrative Hearings subpoenas far the following individuals: 1. Police Officer Sean Burton St. Paul Police Department 100 East 11�' Street Saint Paul, Minnesota 55101 2. Police Officer Jason Urbanski St. Paul Police Department 100 East 11` Street Saint Paui, Minnesota 55101 3. Police Officer Joel Johnson St. Paul Police Department 100 East 11` Street Saint Paul, Minnesota 55101 � ,. � 1 / �Y/� The hearing is scheduled to start at 930 a.m. on Tuesday, May 4, 1999, in Room 41, St. Paul City Hall, 15 West Kellogg Boulevazd, St. Paul, MN 55102. If you need additional information or have any questions regazding this request, please do not hesitate to call me at 266-8776. Thank you for your considerarion in this matter. Sincerel , i Peter P. Pangt Legal Assistant Page 2 OFFICE OF THE CiTY A'i'TORAtEY ClaytonM Robinson. J.., CiryAttornty �1.��1 � � � 6 CITY OF SAINT PAUL Narm Coleman, .Mayor ctvn Dlvrs;an 400 C,ry Xall 1 S West Kellagg $l�d. Sainr Pauf, hlinnesota 55102 Telaplmne 612166-8i10 Facs�mile 612 298-5619 FAX TRANSMISSION DATE: Aprit 27, 1999 TO: Judge GeorgB Beck clo Louise Cooper dffic9 of Administrative H�Brings NUMBER OF PAGES (including cover page): 3 FROM: Peter Pangborn Legal Assistant St. Paul City Attorney's Office 400 City Hall FAX No.: 349-2665 FAX No.: 298-5619 1/ you d0 not receive ati pages of thls fransmission, p/ease contact: Peter Pangborn Teleph�ne No. 286-8778 ` z�uite'd 6Z9S 85Z �S9 ,t3Na011C ,llI� , ��Cd !.. �Z:�: 556�-%z-�+db APR.-2�'99��UE1 10:09 OFFICE OF ADMIN.HEARING TEL:6123492665 P.001 TRAHS.9CT[O\� REPORT RecePtian Transaction(s) completed > NO. TX DATE/TIME DESTI�ATION DURATION PGS. RESULT MODE 644 APR. 27 30+07 651 298 5619 0° 00' SD" 003 OK N ECM i r' OFPICH OF T8S CITY ATTORNEY (�� Clayton M. Rabinson, lr., City Allnrney � ti( � 7 f_' { �� .� �- �J A. i�� i�- `; J CITY OF SAINT PAUL — cNanNUeoR Norm Cnfeman, Mayor �, � F � a �.. 7 r' '�+. {� 400 Ciry Hall � �.t, L_ k;i tw• �1� ts{Yes(Keltaggstvd . _ - Saint Pau� Mirsnama 55702 r.. . J 7 � , :. _ i .. .. March 18, 1999 NOTICE OF HEARING Mazk Vaught Attomey at Law Six West Fifth Street, Suite 700 Saint Paul, Minnesota 55102 Tetephnnc 65l 266-8770 Facsimile: 651298-56I9 RE: All licenses held by 3ames Bailey, Inc. dlbia Arlington Pub aikla Bailey's Baz for the premises located at 721 Payne Ave. in St. Paul License ID No.: 16443 Our File 1Vumber: G99-6066 Dear Mr. Vaught: Please take notice that a hearing will be held at the foilowing time, date and place concerning all licenses for the premises stated above: Date: Tuesday, May 4,1999 Time: 9:30 a.m. Place: Room 41 St. Paul City Hall 15 W. Kellogg Blvd. St. Paul, MN. 5�142 The hearing will be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: Name: George A. Beck Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN. 55401 Telephone: 612-341-7601 , � � �� The Councii of the City of Saint Paul has the authority to provide for hearings conceming licensed premises and for adverse acrion against such licenses, under Cl�apter 310, including secfions 310.05 and 310.06, of the Saint Paui Legisiative Code. In the case of licenses for intoacicating and non- into�cating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse acrion may include revocation, suspension, fines and other penalties or condirions. Evidence will be presented to the judge which may lead to adverse action against a11 the licenses you hold at the above premises as follows: On January 29, 1999, at approximately 2:37 a.m. a Saint Paul Police Officer observed an individual wallc out of Arlington Pub, located at 721 Payne Avenue. The person appeared to be extremely intoxicated. The officer asked if he had been drinking at the bar, and the individual responded that he had been drinking there and it was °last call". The individual was transported to detox, where he registered a.20 alcohol concentration. This conduct is in violafion of Minn. Stat. §340A.504, subd. 2 and Saint Paul Legistative Code §4��.Oi(a), prohibiring the sale of alcohol after 1:00 a.m.; Minn. Stat. §340A.502, prohibiting the sale of alcohol to an obviously intoxicated person; and Saint Paul Legislative Code §409.07(c), prohibiting the consumption or display of aicohol at any time whea the sale is not permitted. On February 4,1999, at appro�timately 12:23 a.m., two police officers were sent to Arlington Pub on a report of a man inside causing pro6lems. On arrival, they observed an individual who appeared to be very intoxicated. They spoke to the bartender, who admitted that he had served the individual a drink. This individual was transported to detox, where he registered a.25 alcohol concentration. This is a violation of Minn. Stat. §340A.502, prohibitina the sale of alcohol to an obviously into�cated person. The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrative Law Judae wi11 have a!1 garties idenfify themselves for the record. The City will then present its witnesses and evidence, each of whom the licensee or attomey may cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the Ciry's attomey may cross-examine. The Administrative Law Judge may in addition heaz relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial - interest in the outcome of the proceeding. Concluding azguments may be made by the parties. Following the hearing, the Judge will prepare Findings of Fact, Conclusions of Law, and a specific recommendation for action to be taken by the City Council. Notice of Hearing = Page 2 G�-��7 You should bring to the hearing all documents, records and witnesses you will or may need to support your posirion. Subpoenas may be availabie to compel the attendance of witnesses or the production of documents in conformity with Minnesota Rules, part 14Q0.7000. If a stipulation or agreement can he reached as to the facts, that stipulation will be presented to the Admuustrative Law Judge for incorporarion into his or her recommendation for Council action. If the licensee or his representarive fails to appear at the hearing, their ability to challenge the allegations will be forfeited and the allegations against them which have been stated earlier in this notice may be taken as true. If non-public data is received into evidence at the hearing, it may become public unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. If you have any questions, you can call me at 266-8710. Very truly yours, �� vu-C� � Virginia D. Palmer Assistant City Attomey cc: Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Bruce Sylvester, Community Organizer, Payne Phalen Dist. 5 Planning Council, 1014 Payne Ave., St. Paul, MN 55101 Notice of Hearing - Page 3 �� final decision after reviewing my report. In so doing, it may adopt, reject, or modify my Findings of Fact, ConcIusions, and Recommendations. The final decision of the City Council will not be made until my report has been available to the parties for at least ten days. The parties should check with the City to determine the procedures and time frame to file comments about my report. •• Beginning with Ms. Palmer, would the attorneys and parties please state and spell your names, and state your addresses for the record. V�r��nia. •• At this point would Mr. Vaught and Ms. Palmer please advise me of the witnesses whose testimony you propose to present and the ordez in which you intend to present your witnesses_ Are there any other preliminary matters to be addressed? Have you reached any stipulations about the facts? Do you have any written records or documents which you intend to introduce into evidence? Have they been provided to the other party? �� Have they been marked for identification? (If not, ask the attorneys to mark the e�ibits — numbers for City and Ietters for the license holder.) As I previousi ed, the nc as the burden of proof. It shall begin th rese tatio f evide ce. Testimony in this hearing should be given by question and answer. Witnesses, if you hear one of the attomeys object to a question which is asked of you, please do not answer. I will rule on the objection. If I sustain the objection, you may not answer. If I overrule the objection, you may answer. Part 1400.7300 of the Rules governs the admissibility of evidence at this hearing. It states that: The judge may admit all evidence which has probative value, including hearsay, if it is the type of evidence on which reasonab�e, prudent persons are accustomed to rely in the conduct of their serious affairs. The judge shall give effect to the rules of privilege recognized by law. Evidence which is incompetent, irrelevant, immaterial, or unduly repetitious shall be excluded. (END of Rule language) The rule I have just read is less formal than the rules of evidence in a court proceeding. I will consider evidence such as a � �� OATH OR AFFIRMATION Please stand while I administer the oath. Do you solemnly swear (affirm) that ail the staternents you are abaut to make in this proceeding are the truth, the whole truth and nothing but the truth? Tharlc you, yo:: may be seated. �I et�_ �c�. � n�.�rie. �o„ `1-�-e ,nQC.o.-d a�� hearsay evidence that might not be considered in court, if the evidence appears to be reliable. Are there any questions? Openings: Ms. Palmer, do you wish to make an opening statement? • Mr. Vaught, you can choose to give your opening statement right after Ms. Palmer gives hers, before any of the evidence is presented. Or you can wait untii after the City presents its evidence and give your opening statement befare presenting your evidence. Which would you prefer? Are there any questions before we begin? Ms. Palmer, you may proceed with your opening statemen±. FOLLOWING THE CITY'S OPENING... . Mr. Vaught, you may make your opening statement at this time. FOLLOWINGMr. T�aught'sOPENING... Ms. Palmer, you may call your fust witness. ��,�� Proceed with direct and cross-examination of the wimesses for the City, followed by witnesses for Mr. Vadnais. Opportunity for Itebuttal OPPORTUNiTY FOR CLOSiNG • Under the rules goveming this proceeding, the parties may choose to give a closing argument at this time or you may submit written arguments. Do you wish to make a closing staternent ar submit written arguments? Are there any additional matters to be addressed before I conclude this hearing? This concludes the hearing. Thank you Mr. Vaught and Ms. Palmer. And thank you to those of you who took the time to testify Yoday. Hearing adjourned.