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00-195o��NAL �T..l� � Presented By Refened To Council File # Q n _ �g,s Green Sheet # �� Committee: Date ia 1 WHEREAS, the City of Saint Paul, Office of License, Inspections and Environmental 2 Protection (LIEP) initiated adverse action against the licenses held by Megusta Me�can Cuisine, 3 Inc. d/b/a Megusta Mexican Restaurant (License ID #18491), for selling alcohoi to an underage 4 person in violation of Minn. Stat. §340A.503 and Saint Paul Legislative Code § 409.08(2), 5 arising from a liquor compliance check on October 21, 1999; and 7 9 10 11 WHEREAS, an administrative hearing was held before Adminish�ative Law Judge Steve M. Mihalchick on December 29, 1999, and the Administrative Law Judge found that the Caty had met its burden of showing that the violation had occurred and that adverse action against the licenses was warranted; and 12 WHEREAS, the Administrative Law Judge issued Findings of Fact, Conclusion of Law 13 and a recommendation that the City council order Licensee to pay a fine of $500.00, based upon 14 the presumptive penalty matrix of §409.26; and 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 WHEREAS, a hearing was held before the Saint Paul City Council on February 9, 2000 to consider the report of the Admuustrative Law Judge, and the Licensee was notified of saad hearing and appeared in opposition to the recommendation; now, therefore, be it RESOLVED, that the Council of the City of Saint Paul, after due deliberation, based upon all of the evidence contained in the files, records and proceedings herein including the documents and e�ibits submitted to the Administrative law judge, the adoption of the AchninisCrative Law Judge's Findings of Fact, Conclusions of Law, Recommendation and Memorandum, and the azguments at the hearing on February 9, 2000, does hereby order: That the Findings of Fact, Conclusions, Recommendation and Memoranduxn of tlie Administrative Law Judge dated January 13, 2000 are adopted as the findings of the Council in this matter and are incorporated herein by reference. 2. That a fine of $500.00 is nnposed on the licenses held by Megusta Mexican Cuisine, Inc. d/bJa Megusta Mexican Restaurant, located at 433 S. Robert Street in Saint Paul. Half of the fine is stayed for a period of 18 months, on the condition that there be no fi.irther violations by the licensee. The remaining' $250.00 shall be paid to the Office of LIEP within thirty days of the adoption of this resolution. A copy of this Resolution, as adopted shall be sent by fust class mail to the licensee and 1 to the Adm3nistrative Law Judge. �� — �� 5 oR��NA� Requested by Department of: By: Foxm Approved by City Attor y BY ° `� "�+�'=�- Bg7proved by Mayor for Submission to Council By: 1\ �\�_ 1---\fj� 1��.. _�/ By: Approved by May�� Date /(i7/�///y!/( �2.�� By: Adopted by Council: Date��i 1pe �, ��_ Adoption Certified by Council Secretary do -1�C5 City Attorney February 17, GREEN SHEET No1��?�4 266-8710 TOTAL # OF SIGNATURE PAGES mMire�r ou[crort a,rca.�a arv�ifcietv � ertrcuuc lwMtNta�NKFiaet ❑ wWltlM.aF0.16IGCfa I Wlpl(ORAiiifAMi� � (CL1P ALL LOCATIONS FOR SIGNATUR� Resolufion finalizing Ciry Council action taken Febmary 9, 2000, concerning adverse action against all licenses held by Megusta Mexican Cuisine, dba Megusta Mexican Restaurant, 433 Robert Street South. PLANNING CAMMISSION CIBCOhtMITfEE CNIL SERVICE CAMMISSION OF 7RANSAC710N f SOURCE Hae Mis P��m eoerv,wked under a conUaUforUua deD�eM'� VES NO Has thb P�� e`er heen a cilY �PbY�? YES NO Oaes ttuc pe'aonlfi�n P�ssecs a skpl nM namallYP�secseG M1 any arteM atY emPbYee1 YES NQ Is Mis pe�eoMrm a tarpeted �entlor! YES NO �n afi vea erewas an aeos2te sMet aM aGach fn afaen aheet � CO3T/REVRJUE BUDGETED (GRCLE ON� I [.i(i �� i �`t�l`�=1�.7 YE3 NO 'Y` 0 0 - \�lS CITY OF SAINT PAUL Nanrs Coleman, Mayor �� January 14, 2000 OFFICE OF THE CITY ATTORNEY Clayton M. Robiruon, Jr., Ciry Attorney �� Civit Div'rsion 400CityHa11 Telephone:651266-8710 ISWestKelloggBlvd. Facsimile:65I298-5619 Saint Paul, Minnesota 55101 NOTICE OF COUNCIL HEARING Mr. Modesto Ernesto Reyes Megusta Mexican Restaurant 433 Robert Street South Saint Paul, Minnesota 55107 RE: All licenses held by Megusta Mexican Cuisine, Inc. d/b(a Megusta Mexican Restaurant for the premises located at 433 Robert Street S. in St. Paul License ID No.: 18491 Our File Number: G99-0380 Dear Mr. Reyes: 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, February 9, 2000, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opportunity to file exceptions to the report with the City Clerk 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 ar testimony taken at this hearing. 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 permitted by law in the exercise of its judgement and discretion. Sincerely, � � �,�� Virginia D. Palmer Assistant City Attomey ��?��.� �,�� , ��.� ;. :, , �� . � �� cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Steve Faust, Community Organizer, West Side Citizens Organization, 127 Winifred St. W., St. Paul, MN 55107 0 0 -1�S 12-2111-12599-3 STATE OF MINNESOTA OFF{CE OF ADMiNISTRATiVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of All Licenses Held by Megusta Mexican Cuisine, Inc., d/b/a Megusta Mexican Restaurant, for Premises Located at 433 Robert Street S., Saint Paul, License I.D. No. 18491. FINDINGS OF F'ACT, CONCLUSIONS OF LAW AND RECOMMENDATION The above-entitled matfer came on for hearing before Administrative Law Judge Steve M. Mihalchici:, acting as a hearing officer fo; the Saint Pau! City Council, commencing at 9:30 a.m. on Wednesday, December 29, 1999, at the Saint Paul City Hali/Ramsey Counfy Courthouse, Room 41, 15 West Kellogg Boulevard, St. Paul, Minnesota. The hearing was held pursuant to a Notice of Hearing dated iVovember 12, 1999. Virginia D. Palmer, Assistant St. Paul City Attorney, 400 City Hail, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102, appeared on behalf of the City's O�ce of License, Inspections and Environmental Protection (LIEP). Modesto E. Reyes, Owner of Megusta Mexican Cuisine, lnc., 433 Robert Street South, Saint Pau{, Minnesota 55107, appeared on behaif of the Licensee (hereinafter "Megusta" or "Licensee"}. The record closed on December 29, 1999, with the ciose of the hearing. NOTICE This Report contains a recommendation and not a final decision. The finai decision will be made by the Saint Paui City Councii, which may affirm, rejeci, or modify the Findings and Conclusions contained herein. The Council will consider the evidence in ihis case and the hearing examiner's recommended Findings of Fact and Conclusions, but will not consider any factual testimony not previously submitted to and considered by the Administrative Law Judge. The Licensee will have an opportunity to present oral or written arguments alleging error on the part of the Administrative Law Judge in the application of the law or interpretation of the facts and may present argument related to the recommended adverse action. The Council's decision as to what, if any, adverse action shali be taken wiil be by resolution under § 310.05 of the St. Pau! Legisfative Code. To ascertain when the Council will consider this matter, the parties should contact the SaiRt Paui City Council, Room 310, St. Paul Ciry Hal{lRamsey County Courthouse, 15 West 4Cellogg Boulevard, St. Paul, Minnesota 55102. STATEMENT OF ISSUES The issues in this matter are whether Licensee served alcohol to persons not yef of iegal age, whether the means used to check compliance are appropriate, and, if so, what penalty is appropriate. 00 -\qs Based upon all of the files, records and proceedings herein, the Administrative Law Judge (ALJ) makes the following: FINDINGS OF FACT 1. The License Inspection and Environmental Protection Office for fhe City of Saint Paul (LIEP) is in the process of completing an annual "compliance check" of ali the licensed alcohol vendors in the City. As conducted by LIEP, ali vendors are subject to one compliance check. Those vendors that fail fhe initial compliance check are required to compiete alcohol awareness training and subject to a follow-up compiiance check. Adverse action against the licenses of vendors is taken only if the second compliance check is failed by the vendor. 2. Megusta Mexican Cuisine, Inc. is a corporation doing business as Megusta Mexican Restaurant at 433 Robert Street South, Saint Paui, Minnesota 55107. The corporation is owned by Modesto Reyes. Arturo Reyes, Modesto Reyes' brother, works in the restaurant. Megusta has a Restaurant (B) license and a Malt On-Sale license. The Malt On-Sale license authorizes Megusta to sell beer that does not exceed 3.2 percent alcohol content {by weight).� Megusta's licenses remain va4id pending the outcome of this proceeding. 3. In April, 1999, Sergeant James Ramstad of the Saint Paul Police Department (SPPD) conducted a compliance check of Megusta, by sending underage persons into the restaurant and having them attempt to buy beer. Megusta failed the comp4iance check when the server provided beer to those underage persons withoui requesting proof of age. Due to that failure, Megusta was issued a warning and required to complete afcohol awareness training. Megusta completed that training on July 23, 1999. Arturo Reyes was one of the servers who completed that training. 4. On October 21, 1999, Sergeant Ramstad and Sergeant Stuart Burke of the SPPD were conducting compliance checks of establishments serving alcohol. Assisting these officers were two persons, ages 20 and 19, who entered each establishment and attempted to purchase alcohol. Each compiiance checker was instructed to order beer, and wait to see if the server requested proof of age. If proof of age was requested, the compliance checkers were to inform the server that they had no identification with them. The compliance checkers were instructed to be fruihful and not io ciaim inat iney were of legal age. Each team of compliance checkers was equipped with a transmitting body microphone to allow the police officers to monitor the conversation between the server and the compliance checkers. 5. At about 6:00 p.m. on October 21, 1999, Sergeants Burke and Ramstad and the two compliance checkers arrived at Megusta on Robert Street. The compliance checkers were carrying no identification and the only money they carried had been provided by the officers. ' Saint Paui Legislative Code, Sec. 410.01. Z City Exhibit 5. 3 jd. �� 00 -��15 6. The officers and compliance checkers parked in a lot across Robert Street from Megusta. From that position, the o�cers couid see into the restaurant through the front windows. The compiiance checkers entered Megusta and sat down at a table in fuil view of the officers. The officers saw the server approach the table. The male compliance checker ordered two "Coronas," a brand of beer served by Megusta. The officers saw the server place the two bottles of beer in front of the compliance checkers and step away. The o�cers could not hear the conversation between the compliance checkers and fhe server due to the background noise and music in the restaurant, but they did hear three distinct taps on the microphone. Those taps were the prearranged signal befinreen the compiiance checkers and fhe officers fhat aicohol had been served and was in the control of the compliance checkers. 7. Upon hearing the signal, the o�cers left their vehicle and crossed Robert Street to enter Megusta. As they approached the front door, the officers could see into the restaurant and noted that the compliance checkers were alone at their iable with the beer. As the o�cers entered the door the server, Arturo Reyes, came back to the compliance checker's table and began to ask them for identification. They responded that they had none, as they had been instructed. 8. The o�cers informed the server that he had provided underage persons alcohol and that the restaurant would qe cited. A�turo Reyes objected to the o�cers that the compliance checkers looked old enough to purchase beers and asked that the officers provide identification for the checkers to prove they are underage. Sergeant Ramstad asked the male compliance checker whether any request for identification had been made prior to the server putting the beer on the table. The compliance checker indicated that no identification had been asked for prior to the officers entering the restaurant. 9. On October 28, 1999, the Saint Paul City Attorney's O�ce issued a Natice of Violation to the respondent. The Notice stated that on October 22, 1999, an employee sold alcohol to an underage person in violation of state law and the Sainf Paul Legislative Code. The Notice stated that since this was the respondent's first violation, LIEP would be recommending a$500 fine. Megusta notified LIEP that it sought to appeal the finding of a violation. 10. On November 12, 1999, the Assistant City Attomey, Virginia D. Paimer, issued a Notice of Hearing in this matter. The Notice of Hearing identified the violation as occurring on October 22, 1999. 11. The misidentification of the date of occurrence in the notices in this matter did not cause any confusion for Licensee. Licensee was not prevented from fully contesting the alleged violation due to the erroneous date. ' Minn. Stat. § 340A.503. 5 Section 409.26. 3 �b -�q5 Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the foflowing: CONCLUSIONS 1. The Administsative Law Judge and the Saint Paul City Council have authority to consider the charges against the respondent and the penalty, if any, that should be paid the city pursuant to Sec. 310.05 of fhe St. Paul Legislative Code. 2. LIEP has compiied with ali relevant substantive and procedural legal requirements. 3. The respondent received adequate and timely notice of the hearing and of the charges against it. 4. LIEP has the burden of proof to estabiish, qy a preponderance oF the evidence, that the respondent violated state law and the St. Paul Legislative Code. 5. Under Sec. 409.26(b)(3), the presumptive penalty for the first illegal sale of alcohol is a $500 fine. 6. For purposes of Sec. 409.26(b)(3) of the Saint Paui Legislative Code, there are no substantial or compelling reasons for deviating from the presumptive penalty in this case. 7. Because the Licensee's violation is covered by the matrix of Sec. 409.26, under Sec. 310.05(k)(vii) of the Saint Paul Legislative Code the Licensee may be required to pay ail the costs of this proceeding. 8. Licensee violated Minn. Stat. § 340A.503 and Sec. 409.26 of the Saint Paul Legislative Code on October 21, 1999, when it sold alcohol to persons under 21 years of age. Based upon the foregoing Conciusions, the Administrative Law Judge makes the foilowing: RECOMMENDATION !T IS HEREBY RECOPflMENDED: Thaf ths Saint Pauf Cit�,� Council order Licensee to pay a$500 fine. The Saint Paul City Council may, at its discretion, order the Licensee to pay the costs of this proceeding. Dated this � 3�ay of January, 2000 � 1�'1 - �'� , ��' �C' � � �� STEVE M. MIHALCHICK Administrative Law Judge ��f,� ,� � � 6 !n re Ka/dahl, 418 N.W2d 532, 535 (Minn. Ct. App. 1988). � � Reported: Taped, two tapes MEMORANDUM fl � - �q.� The facts of this matter are not significantly in dispute. The server at Megusta took the order for beer from two underage persons and brought back fwo beers. The server maintained at the hearing that he asked for identification from the compliance checkers after putting one of the beers on the table. The server's testimony is contradicted by that of the officers who conducted the compiiance check.� The o�cers both saw the beers on the tabie and the server was out of sight. This situation lasted from the time fhe compiiance checker gave the prearranged signal to when the o�cers entered the restaurant. As the offcers entered the restaurant, the server returned to the table and asked the two underage persons for proof of age. State law and Saint Paul City Ordinance are clear that underage persons are not to be served alcoho! by licensees. Two beers were left with the underage persons while the server went to another table. By leaving the beer with the compliance checkers and stepping away from the table, the server had de{ivered the beer into the possession of those underage persons and had lost any ability to control the consumption of the beer by those persons. Those acts constitute violations of the prohibitions against service alcohol to underage persons. Coming back to the table to ask for proof of age does not cure the violation. The use of compliance checkers is reasonable to allow LIEP some means of determining whether underage sales of alcohol are being made by licensees. The close monitoring and carefui instruction of the underage persons involved acts to protect licensees from undue disruption to their businesses. While the Notice of Violation and the Notice of Hearing both contained an error as to the date of the violation, Megusta was not prejudiced by this error. The facts of the situation were fully known by Licensee and there were no di�culties in preparing for the hearing that were caused by the error. The Licensee has received adequate notice of the alleged violation and a full opportunity to defend against the ailegation. LIEP has demonstrated by a prepcnderarc� of the evidence that Megus;a served alcohol to underage persons in violation of Sec. 409.26(b)(3) of the Saint Paul Legisiative Code and Minn. Stat. § 340A.503. The presumptive penaity is $500.00, and there are no facts in the record that suggest deviation from that penalty is appropriate. Sec. 310.05(k)(vii) of the Saint Paul Legislative Code permits the City Council to assess � The testimony of a patron at the restaurant was contradictory, at one point indicating the offcers immediately entered the restaurant when the beer was being served and at another point suggesting some short time passed before the offcers entered the restaurant. 8 Minn. Stat. § 340A.503; Saint Paul Legislative Code, Sec. 409.26. 9 Another method of determining whether underage sales are occurring is fior SPPD offcers to seize the licensed premises during business hours and examine identification of any patrons who appear to be close to Iegai age. The choice of enforcement method is within the discretion of the SPPD and LIEP. 5 OQ-\`LS the casts of this proceeding against Licensee. That assessment is at the sole discrefion of the Councii. S.M.M. 0 o��NAL �T..l� � Presented By Refened To Council File # Q n _ �g,s Green Sheet # �� Committee: Date ia 1 WHEREAS, the City of Saint Paul, Office of License, Inspections and Environmental 2 Protection (LIEP) initiated adverse action against the licenses held by Megusta Me�can Cuisine, 3 Inc. d/b/a Megusta Mexican Restaurant (License ID #18491), for selling alcohoi to an underage 4 person in violation of Minn. Stat. §340A.503 and Saint Paul Legislative Code § 409.08(2), 5 arising from a liquor compliance check on October 21, 1999; and 7 9 10 11 WHEREAS, an administrative hearing was held before Adminish�ative Law Judge Steve M. Mihalchick on December 29, 1999, and the Administrative Law Judge found that the Caty had met its burden of showing that the violation had occurred and that adverse action against the licenses was warranted; and 12 WHEREAS, the Administrative Law Judge issued Findings of Fact, Conclusion of Law 13 and a recommendation that the City council order Licensee to pay a fine of $500.00, based upon 14 the presumptive penalty matrix of §409.26; and 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 WHEREAS, a hearing was held before the Saint Paul City Council on February 9, 2000 to consider the report of the Admuustrative Law Judge, and the Licensee was notified of saad hearing and appeared in opposition to the recommendation; now, therefore, be it RESOLVED, that the Council of the City of Saint Paul, after due deliberation, based upon all of the evidence contained in the files, records and proceedings herein including the documents and e�ibits submitted to the Administrative law judge, the adoption of the AchninisCrative Law Judge's Findings of Fact, Conclusions of Law, Recommendation and Memorandum, and the azguments at the hearing on February 9, 2000, does hereby order: That the Findings of Fact, Conclusions, Recommendation and Memoranduxn of tlie Administrative Law Judge dated January 13, 2000 are adopted as the findings of the Council in this matter and are incorporated herein by reference. 2. That a fine of $500.00 is nnposed on the licenses held by Megusta Mexican Cuisine, Inc. d/bJa Megusta Mexican Restaurant, located at 433 S. Robert Street in Saint Paul. Half of the fine is stayed for a period of 18 months, on the condition that there be no fi.irther violations by the licensee. The remaining' $250.00 shall be paid to the Office of LIEP within thirty days of the adoption of this resolution. A copy of this Resolution, as adopted shall be sent by fust class mail to the licensee and 1 to the Adm3nistrative Law Judge. �� — �� 5 oR��NA� Requested by Department of: By: Foxm Approved by City Attor y BY ° `� "�+�'=�- Bg7proved by Mayor for Submission to Council By: 1\ �\�_ 1---\fj� 1��.. _�/ By: Approved by May�� Date /(i7/�///y!/( �2.�� By: Adopted by Council: Date��i 1pe �, ��_ Adoption Certified by Council Secretary do -1�C5 City Attorney February 17, GREEN SHEET No1��?�4 266-8710 TOTAL # OF SIGNATURE PAGES mMire�r ou[crort a,rca.�a arv�ifcietv � ertrcuuc lwMtNta�NKFiaet ❑ wWltlM.aF0.16IGCfa I Wlpl(ORAiiifAMi� � (CL1P ALL LOCATIONS FOR SIGNATUR� Resolufion finalizing Ciry Council action taken Febmary 9, 2000, concerning adverse action against all licenses held by Megusta Mexican Cuisine, dba Megusta Mexican Restaurant, 433 Robert Street South. PLANNING CAMMISSION CIBCOhtMITfEE CNIL SERVICE CAMMISSION OF 7RANSAC710N f SOURCE Hae Mis P��m eoerv,wked under a conUaUforUua deD�eM'� VES NO Has thb P�� e`er heen a cilY �PbY�? YES NO Oaes ttuc pe'aonlfi�n P�ssecs a skpl nM namallYP�secseG M1 any arteM atY emPbYee1 YES NQ Is Mis pe�eoMrm a tarpeted �entlor! YES NO �n afi vea erewas an aeos2te sMet aM aGach fn afaen aheet � CO3T/REVRJUE BUDGETED (GRCLE ON� I [.i(i �� i �`t�l`�=1�.7 YE3 NO 'Y` 0 0 - \�lS CITY OF SAINT PAUL Nanrs Coleman, Mayor �� January 14, 2000 OFFICE OF THE CITY ATTORNEY Clayton M. Robiruon, Jr., Ciry Attorney �� Civit Div'rsion 400CityHa11 Telephone:651266-8710 ISWestKelloggBlvd. Facsimile:65I298-5619 Saint Paul, Minnesota 55101 NOTICE OF COUNCIL HEARING Mr. Modesto Ernesto Reyes Megusta Mexican Restaurant 433 Robert Street South Saint Paul, Minnesota 55107 RE: All licenses held by Megusta Mexican Cuisine, Inc. d/b(a Megusta Mexican Restaurant for the premises located at 433 Robert Street S. in St. Paul License ID No.: 18491 Our File Number: G99-0380 Dear Mr. Reyes: 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, February 9, 2000, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opportunity to file exceptions to the report with the City Clerk 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 ar testimony taken at this hearing. 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 permitted by law in the exercise of its judgement and discretion. Sincerely, � � �,�� Virginia D. Palmer Assistant City Attomey ��?��.� �,�� , ��.� ;. :, , �� . � �� cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Steve Faust, Community Organizer, West Side Citizens Organization, 127 Winifred St. W., St. Paul, MN 55107 0 0 -1�S 12-2111-12599-3 STATE OF MINNESOTA OFF{CE OF ADMiNISTRATiVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of All Licenses Held by Megusta Mexican Cuisine, Inc., d/b/a Megusta Mexican Restaurant, for Premises Located at 433 Robert Street S., Saint Paul, License I.D. No. 18491. FINDINGS OF F'ACT, CONCLUSIONS OF LAW AND RECOMMENDATION The above-entitled matfer came on for hearing before Administrative Law Judge Steve M. Mihalchici:, acting as a hearing officer fo; the Saint Pau! City Council, commencing at 9:30 a.m. on Wednesday, December 29, 1999, at the Saint Paul City Hali/Ramsey Counfy Courthouse, Room 41, 15 West Kellogg Boulevard, St. Paul, Minnesota. The hearing was held pursuant to a Notice of Hearing dated iVovember 12, 1999. Virginia D. Palmer, Assistant St. Paul City Attorney, 400 City Hail, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102, appeared on behalf of the City's O�ce of License, Inspections and Environmental Protection (LIEP). Modesto E. Reyes, Owner of Megusta Mexican Cuisine, lnc., 433 Robert Street South, Saint Pau{, Minnesota 55107, appeared on behaif of the Licensee (hereinafter "Megusta" or "Licensee"}. The record closed on December 29, 1999, with the ciose of the hearing. NOTICE This Report contains a recommendation and not a final decision. The finai decision will be made by the Saint Paui City Councii, which may affirm, rejeci, or modify the Findings and Conclusions contained herein. The Council will consider the evidence in ihis case and the hearing examiner's recommended Findings of Fact and Conclusions, but will not consider any factual testimony not previously submitted to and considered by the Administrative Law Judge. The Licensee will have an opportunity to present oral or written arguments alleging error on the part of the Administrative Law Judge in the application of the law or interpretation of the facts and may present argument related to the recommended adverse action. The Council's decision as to what, if any, adverse action shali be taken wiil be by resolution under § 310.05 of the St. Pau! Legisfative Code. To ascertain when the Council will consider this matter, the parties should contact the SaiRt Paui City Council, Room 310, St. Paul Ciry Hal{lRamsey County Courthouse, 15 West 4Cellogg Boulevard, St. Paul, Minnesota 55102. STATEMENT OF ISSUES The issues in this matter are whether Licensee served alcohol to persons not yef of iegal age, whether the means used to check compliance are appropriate, and, if so, what penalty is appropriate. 00 -\qs Based upon all of the files, records and proceedings herein, the Administrative Law Judge (ALJ) makes the following: FINDINGS OF FACT 1. The License Inspection and Environmental Protection Office for fhe City of Saint Paul (LIEP) is in the process of completing an annual "compliance check" of ali the licensed alcohol vendors in the City. As conducted by LIEP, ali vendors are subject to one compliance check. Those vendors that fail fhe initial compliance check are required to compiete alcohol awareness training and subject to a follow-up compiiance check. Adverse action against the licenses of vendors is taken only if the second compliance check is failed by the vendor. 2. Megusta Mexican Cuisine, Inc. is a corporation doing business as Megusta Mexican Restaurant at 433 Robert Street South, Saint Paui, Minnesota 55107. The corporation is owned by Modesto Reyes. Arturo Reyes, Modesto Reyes' brother, works in the restaurant. Megusta has a Restaurant (B) license and a Malt On-Sale license. The Malt On-Sale license authorizes Megusta to sell beer that does not exceed 3.2 percent alcohol content {by weight).� Megusta's licenses remain va4id pending the outcome of this proceeding. 3. In April, 1999, Sergeant James Ramstad of the Saint Paul Police Department (SPPD) conducted a compliance check of Megusta, by sending underage persons into the restaurant and having them attempt to buy beer. Megusta failed the comp4iance check when the server provided beer to those underage persons withoui requesting proof of age. Due to that failure, Megusta was issued a warning and required to complete afcohol awareness training. Megusta completed that training on July 23, 1999. Arturo Reyes was one of the servers who completed that training. 4. On October 21, 1999, Sergeant Ramstad and Sergeant Stuart Burke of the SPPD were conducting compliance checks of establishments serving alcohol. Assisting these officers were two persons, ages 20 and 19, who entered each establishment and attempted to purchase alcohol. Each compiiance checker was instructed to order beer, and wait to see if the server requested proof of age. If proof of age was requested, the compliance checkers were to inform the server that they had no identification with them. The compliance checkers were instructed to be fruihful and not io ciaim inat iney were of legal age. Each team of compliance checkers was equipped with a transmitting body microphone to allow the police officers to monitor the conversation between the server and the compliance checkers. 5. At about 6:00 p.m. on October 21, 1999, Sergeants Burke and Ramstad and the two compliance checkers arrived at Megusta on Robert Street. The compliance checkers were carrying no identification and the only money they carried had been provided by the officers. ' Saint Paui Legislative Code, Sec. 410.01. Z City Exhibit 5. 3 jd. �� 00 -��15 6. The officers and compliance checkers parked in a lot across Robert Street from Megusta. From that position, the o�cers couid see into the restaurant through the front windows. The compiiance checkers entered Megusta and sat down at a table in fuil view of the officers. The officers saw the server approach the table. The male compliance checker ordered two "Coronas," a brand of beer served by Megusta. The officers saw the server place the two bottles of beer in front of the compliance checkers and step away. The o�cers could not hear the conversation between the compliance checkers and fhe server due to the background noise and music in the restaurant, but they did hear three distinct taps on the microphone. Those taps were the prearranged signal befinreen the compiiance checkers and fhe officers fhat aicohol had been served and was in the control of the compliance checkers. 7. Upon hearing the signal, the o�cers left their vehicle and crossed Robert Street to enter Megusta. As they approached the front door, the officers could see into the restaurant and noted that the compliance checkers were alone at their iable with the beer. As the o�cers entered the door the server, Arturo Reyes, came back to the compliance checker's table and began to ask them for identification. They responded that they had none, as they had been instructed. 8. The o�cers informed the server that he had provided underage persons alcohol and that the restaurant would qe cited. A�turo Reyes objected to the o�cers that the compliance checkers looked old enough to purchase beers and asked that the officers provide identification for the checkers to prove they are underage. Sergeant Ramstad asked the male compliance checker whether any request for identification had been made prior to the server putting the beer on the table. The compliance checker indicated that no identification had been asked for prior to the officers entering the restaurant. 9. On October 28, 1999, the Saint Paul City Attorney's O�ce issued a Natice of Violation to the respondent. The Notice stated that on October 22, 1999, an employee sold alcohol to an underage person in violation of state law and the Sainf Paul Legislative Code. The Notice stated that since this was the respondent's first violation, LIEP would be recommending a$500 fine. Megusta notified LIEP that it sought to appeal the finding of a violation. 10. On November 12, 1999, the Assistant City Attomey, Virginia D. Paimer, issued a Notice of Hearing in this matter. The Notice of Hearing identified the violation as occurring on October 22, 1999. 11. The misidentification of the date of occurrence in the notices in this matter did not cause any confusion for Licensee. Licensee was not prevented from fully contesting the alleged violation due to the erroneous date. ' Minn. Stat. § 340A.503. 5 Section 409.26. 3 �b -�q5 Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the foflowing: CONCLUSIONS 1. The Administsative Law Judge and the Saint Paul City Council have authority to consider the charges against the respondent and the penalty, if any, that should be paid the city pursuant to Sec. 310.05 of fhe St. Paul Legislative Code. 2. LIEP has compiied with ali relevant substantive and procedural legal requirements. 3. The respondent received adequate and timely notice of the hearing and of the charges against it. 4. LIEP has the burden of proof to estabiish, qy a preponderance oF the evidence, that the respondent violated state law and the St. Paul Legislative Code. 5. Under Sec. 409.26(b)(3), the presumptive penalty for the first illegal sale of alcohol is a $500 fine. 6. For purposes of Sec. 409.26(b)(3) of the Saint Paui Legislative Code, there are no substantial or compelling reasons for deviating from the presumptive penalty in this case. 7. Because the Licensee's violation is covered by the matrix of Sec. 409.26, under Sec. 310.05(k)(vii) of the Saint Paul Legislative Code the Licensee may be required to pay ail the costs of this proceeding. 8. Licensee violated Minn. Stat. § 340A.503 and Sec. 409.26 of the Saint Paul Legislative Code on October 21, 1999, when it sold alcohol to persons under 21 years of age. Based upon the foregoing Conciusions, the Administrative Law Judge makes the foilowing: RECOMMENDATION !T IS HEREBY RECOPflMENDED: Thaf ths Saint Pauf Cit�,� Council order Licensee to pay a$500 fine. The Saint Paul City Council may, at its discretion, order the Licensee to pay the costs of this proceeding. Dated this � 3�ay of January, 2000 � 1�'1 - �'� , ��' �C' � � �� STEVE M. MIHALCHICK Administrative Law Judge ��f,� ,� � � 6 !n re Ka/dahl, 418 N.W2d 532, 535 (Minn. Ct. App. 1988). � � Reported: Taped, two tapes MEMORANDUM fl � - �q.� The facts of this matter are not significantly in dispute. The server at Megusta took the order for beer from two underage persons and brought back fwo beers. The server maintained at the hearing that he asked for identification from the compliance checkers after putting one of the beers on the table. The server's testimony is contradicted by that of the officers who conducted the compiiance check.� The o�cers both saw the beers on the tabie and the server was out of sight. This situation lasted from the time fhe compiiance checker gave the prearranged signal to when the o�cers entered the restaurant. As the offcers entered the restaurant, the server returned to the table and asked the two underage persons for proof of age. State law and Saint Paul City Ordinance are clear that underage persons are not to be served alcoho! by licensees. Two beers were left with the underage persons while the server went to another table. By leaving the beer with the compliance checkers and stepping away from the table, the server had de{ivered the beer into the possession of those underage persons and had lost any ability to control the consumption of the beer by those persons. Those acts constitute violations of the prohibitions against service alcohol to underage persons. Coming back to the table to ask for proof of age does not cure the violation. The use of compliance checkers is reasonable to allow LIEP some means of determining whether underage sales of alcohol are being made by licensees. The close monitoring and carefui instruction of the underage persons involved acts to protect licensees from undue disruption to their businesses. While the Notice of Violation and the Notice of Hearing both contained an error as to the date of the violation, Megusta was not prejudiced by this error. The facts of the situation were fully known by Licensee and there were no di�culties in preparing for the hearing that were caused by the error. The Licensee has received adequate notice of the alleged violation and a full opportunity to defend against the ailegation. LIEP has demonstrated by a prepcnderarc� of the evidence that Megus;a served alcohol to underage persons in violation of Sec. 409.26(b)(3) of the Saint Paul Legisiative Code and Minn. Stat. § 340A.503. The presumptive penaity is $500.00, and there are no facts in the record that suggest deviation from that penalty is appropriate. Sec. 310.05(k)(vii) of the Saint Paul Legislative Code permits the City Council to assess � The testimony of a patron at the restaurant was contradictory, at one point indicating the offcers immediately entered the restaurant when the beer was being served and at another point suggesting some short time passed before the offcers entered the restaurant. 8 Minn. Stat. § 340A.503; Saint Paul Legislative Code, Sec. 409.26. 9 Another method of determining whether underage sales are occurring is fior SPPD offcers to seize the licensed premises during business hours and examine identification of any patrons who appear to be close to Iegai age. The choice of enforcement method is within the discretion of the SPPD and LIEP. 5 OQ-\`LS the casts of this proceeding against Licensee. That assessment is at the sole discrefion of the Councii. S.M.M. 0 o��NAL �T..l� � Presented By Refened To Council File # Q n _ �g,s Green Sheet # �� Committee: Date ia 1 WHEREAS, the City of Saint Paul, Office of License, Inspections and Environmental 2 Protection (LIEP) initiated adverse action against the licenses held by Megusta Me�can Cuisine, 3 Inc. d/b/a Megusta Mexican Restaurant (License ID #18491), for selling alcohoi to an underage 4 person in violation of Minn. Stat. §340A.503 and Saint Paul Legislative Code § 409.08(2), 5 arising from a liquor compliance check on October 21, 1999; and 7 9 10 11 WHEREAS, an administrative hearing was held before Adminish�ative Law Judge Steve M. Mihalchick on December 29, 1999, and the Administrative Law Judge found that the Caty had met its burden of showing that the violation had occurred and that adverse action against the licenses was warranted; and 12 WHEREAS, the Administrative Law Judge issued Findings of Fact, Conclusion of Law 13 and a recommendation that the City council order Licensee to pay a fine of $500.00, based upon 14 the presumptive penalty matrix of §409.26; and 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 WHEREAS, a hearing was held before the Saint Paul City Council on February 9, 2000 to consider the report of the Admuustrative Law Judge, and the Licensee was notified of saad hearing and appeared in opposition to the recommendation; now, therefore, be it RESOLVED, that the Council of the City of Saint Paul, after due deliberation, based upon all of the evidence contained in the files, records and proceedings herein including the documents and e�ibits submitted to the Administrative law judge, the adoption of the AchninisCrative Law Judge's Findings of Fact, Conclusions of Law, Recommendation and Memorandum, and the azguments at the hearing on February 9, 2000, does hereby order: That the Findings of Fact, Conclusions, Recommendation and Memoranduxn of tlie Administrative Law Judge dated January 13, 2000 are adopted as the findings of the Council in this matter and are incorporated herein by reference. 2. That a fine of $500.00 is nnposed on the licenses held by Megusta Mexican Cuisine, Inc. d/bJa Megusta Mexican Restaurant, located at 433 S. Robert Street in Saint Paul. Half of the fine is stayed for a period of 18 months, on the condition that there be no fi.irther violations by the licensee. The remaining' $250.00 shall be paid to the Office of LIEP within thirty days of the adoption of this resolution. A copy of this Resolution, as adopted shall be sent by fust class mail to the licensee and 1 to the Adm3nistrative Law Judge. �� — �� 5 oR��NA� Requested by Department of: By: Foxm Approved by City Attor y BY ° `� "�+�'=�- Bg7proved by Mayor for Submission to Council By: 1\ �\�_ 1---\fj� 1��.. _�/ By: Approved by May�� Date /(i7/�///y!/( �2.�� By: Adopted by Council: Date��i 1pe �, ��_ Adoption Certified by Council Secretary do -1�C5 City Attorney February 17, GREEN SHEET No1��?�4 266-8710 TOTAL # OF SIGNATURE PAGES mMire�r ou[crort a,rca.�a arv�ifcietv � ertrcuuc lwMtNta�NKFiaet ❑ wWltlM.aF0.16IGCfa I Wlpl(ORAiiifAMi� � (CL1P ALL LOCATIONS FOR SIGNATUR� Resolufion finalizing Ciry Council action taken Febmary 9, 2000, concerning adverse action against all licenses held by Megusta Mexican Cuisine, dba Megusta Mexican Restaurant, 433 Robert Street South. PLANNING CAMMISSION CIBCOhtMITfEE CNIL SERVICE CAMMISSION OF 7RANSAC710N f SOURCE Hae Mis P��m eoerv,wked under a conUaUforUua deD�eM'� VES NO Has thb P�� e`er heen a cilY �PbY�? YES NO Oaes ttuc pe'aonlfi�n P�ssecs a skpl nM namallYP�secseG M1 any arteM atY emPbYee1 YES NQ Is Mis pe�eoMrm a tarpeted �entlor! YES NO �n afi vea erewas an aeos2te sMet aM aGach fn afaen aheet � CO3T/REVRJUE BUDGETED (GRCLE ON� I [.i(i �� i �`t�l`�=1�.7 YE3 NO 'Y` 0 0 - \�lS CITY OF SAINT PAUL Nanrs Coleman, Mayor �� January 14, 2000 OFFICE OF THE CITY ATTORNEY Clayton M. Robiruon, Jr., Ciry Attorney �� Civit Div'rsion 400CityHa11 Telephone:651266-8710 ISWestKelloggBlvd. Facsimile:65I298-5619 Saint Paul, Minnesota 55101 NOTICE OF COUNCIL HEARING Mr. Modesto Ernesto Reyes Megusta Mexican Restaurant 433 Robert Street South Saint Paul, Minnesota 55107 RE: All licenses held by Megusta Mexican Cuisine, Inc. d/b(a Megusta Mexican Restaurant for the premises located at 433 Robert Street S. in St. Paul License ID No.: 18491 Our File Number: G99-0380 Dear Mr. Reyes: 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, February 9, 2000, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opportunity to file exceptions to the report with the City Clerk 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 ar testimony taken at this hearing. 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 permitted by law in the exercise of its judgement and discretion. Sincerely, � � �,�� Virginia D. Palmer Assistant City Attomey ��?��.� �,�� , ��.� ;. :, , �� . � �� cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Steve Faust, Community Organizer, West Side Citizens Organization, 127 Winifred St. W., St. Paul, MN 55107 0 0 -1�S 12-2111-12599-3 STATE OF MINNESOTA OFF{CE OF ADMiNISTRATiVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of All Licenses Held by Megusta Mexican Cuisine, Inc., d/b/a Megusta Mexican Restaurant, for Premises Located at 433 Robert Street S., Saint Paul, License I.D. No. 18491. FINDINGS OF F'ACT, CONCLUSIONS OF LAW AND RECOMMENDATION The above-entitled matfer came on for hearing before Administrative Law Judge Steve M. Mihalchici:, acting as a hearing officer fo; the Saint Pau! City Council, commencing at 9:30 a.m. on Wednesday, December 29, 1999, at the Saint Paul City Hali/Ramsey Counfy Courthouse, Room 41, 15 West Kellogg Boulevard, St. Paul, Minnesota. The hearing was held pursuant to a Notice of Hearing dated iVovember 12, 1999. Virginia D. Palmer, Assistant St. Paul City Attorney, 400 City Hail, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102, appeared on behalf of the City's O�ce of License, Inspections and Environmental Protection (LIEP). Modesto E. Reyes, Owner of Megusta Mexican Cuisine, lnc., 433 Robert Street South, Saint Pau{, Minnesota 55107, appeared on behaif of the Licensee (hereinafter "Megusta" or "Licensee"}. The record closed on December 29, 1999, with the ciose of the hearing. NOTICE This Report contains a recommendation and not a final decision. The finai decision will be made by the Saint Paui City Councii, which may affirm, rejeci, or modify the Findings and Conclusions contained herein. The Council will consider the evidence in ihis case and the hearing examiner's recommended Findings of Fact and Conclusions, but will not consider any factual testimony not previously submitted to and considered by the Administrative Law Judge. The Licensee will have an opportunity to present oral or written arguments alleging error on the part of the Administrative Law Judge in the application of the law or interpretation of the facts and may present argument related to the recommended adverse action. The Council's decision as to what, if any, adverse action shali be taken wiil be by resolution under § 310.05 of the St. Pau! Legisfative Code. To ascertain when the Council will consider this matter, the parties should contact the SaiRt Paui City Council, Room 310, St. Paul Ciry Hal{lRamsey County Courthouse, 15 West 4Cellogg Boulevard, St. Paul, Minnesota 55102. STATEMENT OF ISSUES The issues in this matter are whether Licensee served alcohol to persons not yef of iegal age, whether the means used to check compliance are appropriate, and, if so, what penalty is appropriate. 00 -\qs Based upon all of the files, records and proceedings herein, the Administrative Law Judge (ALJ) makes the following: FINDINGS OF FACT 1. The License Inspection and Environmental Protection Office for fhe City of Saint Paul (LIEP) is in the process of completing an annual "compliance check" of ali the licensed alcohol vendors in the City. As conducted by LIEP, ali vendors are subject to one compliance check. Those vendors that fail fhe initial compliance check are required to compiete alcohol awareness training and subject to a follow-up compiiance check. Adverse action against the licenses of vendors is taken only if the second compliance check is failed by the vendor. 2. Megusta Mexican Cuisine, Inc. is a corporation doing business as Megusta Mexican Restaurant at 433 Robert Street South, Saint Paui, Minnesota 55107. The corporation is owned by Modesto Reyes. Arturo Reyes, Modesto Reyes' brother, works in the restaurant. Megusta has a Restaurant (B) license and a Malt On-Sale license. The Malt On-Sale license authorizes Megusta to sell beer that does not exceed 3.2 percent alcohol content {by weight).� Megusta's licenses remain va4id pending the outcome of this proceeding. 3. In April, 1999, Sergeant James Ramstad of the Saint Paul Police Department (SPPD) conducted a compliance check of Megusta, by sending underage persons into the restaurant and having them attempt to buy beer. Megusta failed the comp4iance check when the server provided beer to those underage persons withoui requesting proof of age. Due to that failure, Megusta was issued a warning and required to complete afcohol awareness training. Megusta completed that training on July 23, 1999. Arturo Reyes was one of the servers who completed that training. 4. On October 21, 1999, Sergeant Ramstad and Sergeant Stuart Burke of the SPPD were conducting compliance checks of establishments serving alcohol. Assisting these officers were two persons, ages 20 and 19, who entered each establishment and attempted to purchase alcohol. Each compiiance checker was instructed to order beer, and wait to see if the server requested proof of age. If proof of age was requested, the compliance checkers were to inform the server that they had no identification with them. The compliance checkers were instructed to be fruihful and not io ciaim inat iney were of legal age. Each team of compliance checkers was equipped with a transmitting body microphone to allow the police officers to monitor the conversation between the server and the compliance checkers. 5. At about 6:00 p.m. on October 21, 1999, Sergeants Burke and Ramstad and the two compliance checkers arrived at Megusta on Robert Street. The compliance checkers were carrying no identification and the only money they carried had been provided by the officers. ' Saint Paui Legislative Code, Sec. 410.01. Z City Exhibit 5. 3 jd. �� 00 -��15 6. The officers and compliance checkers parked in a lot across Robert Street from Megusta. From that position, the o�cers couid see into the restaurant through the front windows. The compiiance checkers entered Megusta and sat down at a table in fuil view of the officers. The officers saw the server approach the table. The male compliance checker ordered two "Coronas," a brand of beer served by Megusta. The officers saw the server place the two bottles of beer in front of the compliance checkers and step away. The o�cers could not hear the conversation between the compliance checkers and fhe server due to the background noise and music in the restaurant, but they did hear three distinct taps on the microphone. Those taps were the prearranged signal befinreen the compiiance checkers and fhe officers fhat aicohol had been served and was in the control of the compliance checkers. 7. Upon hearing the signal, the o�cers left their vehicle and crossed Robert Street to enter Megusta. As they approached the front door, the officers could see into the restaurant and noted that the compliance checkers were alone at their iable with the beer. As the o�cers entered the door the server, Arturo Reyes, came back to the compliance checker's table and began to ask them for identification. They responded that they had none, as they had been instructed. 8. The o�cers informed the server that he had provided underage persons alcohol and that the restaurant would qe cited. A�turo Reyes objected to the o�cers that the compliance checkers looked old enough to purchase beers and asked that the officers provide identification for the checkers to prove they are underage. Sergeant Ramstad asked the male compliance checker whether any request for identification had been made prior to the server putting the beer on the table. The compliance checker indicated that no identification had been asked for prior to the officers entering the restaurant. 9. On October 28, 1999, the Saint Paul City Attorney's O�ce issued a Natice of Violation to the respondent. The Notice stated that on October 22, 1999, an employee sold alcohol to an underage person in violation of state law and the Sainf Paul Legislative Code. The Notice stated that since this was the respondent's first violation, LIEP would be recommending a$500 fine. Megusta notified LIEP that it sought to appeal the finding of a violation. 10. On November 12, 1999, the Assistant City Attomey, Virginia D. Paimer, issued a Notice of Hearing in this matter. The Notice of Hearing identified the violation as occurring on October 22, 1999. 11. The misidentification of the date of occurrence in the notices in this matter did not cause any confusion for Licensee. Licensee was not prevented from fully contesting the alleged violation due to the erroneous date. ' Minn. Stat. § 340A.503. 5 Section 409.26. 3 �b -�q5 Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the foflowing: CONCLUSIONS 1. The Administsative Law Judge and the Saint Paul City Council have authority to consider the charges against the respondent and the penalty, if any, that should be paid the city pursuant to Sec. 310.05 of fhe St. Paul Legislative Code. 2. LIEP has compiied with ali relevant substantive and procedural legal requirements. 3. The respondent received adequate and timely notice of the hearing and of the charges against it. 4. LIEP has the burden of proof to estabiish, qy a preponderance oF the evidence, that the respondent violated state law and the St. Paul Legislative Code. 5. Under Sec. 409.26(b)(3), the presumptive penalty for the first illegal sale of alcohol is a $500 fine. 6. For purposes of Sec. 409.26(b)(3) of the Saint Paui Legislative Code, there are no substantial or compelling reasons for deviating from the presumptive penalty in this case. 7. Because the Licensee's violation is covered by the matrix of Sec. 409.26, under Sec. 310.05(k)(vii) of the Saint Paul Legislative Code the Licensee may be required to pay ail the costs of this proceeding. 8. Licensee violated Minn. Stat. § 340A.503 and Sec. 409.26 of the Saint Paul Legislative Code on October 21, 1999, when it sold alcohol to persons under 21 years of age. Based upon the foregoing Conciusions, the Administrative Law Judge makes the foilowing: RECOMMENDATION !T IS HEREBY RECOPflMENDED: Thaf ths Saint Pauf Cit�,� Council order Licensee to pay a$500 fine. The Saint Paul City Council may, at its discretion, order the Licensee to pay the costs of this proceeding. Dated this � 3�ay of January, 2000 � 1�'1 - �'� , ��' �C' � � �� STEVE M. MIHALCHICK Administrative Law Judge ��f,� ,� � � 6 !n re Ka/dahl, 418 N.W2d 532, 535 (Minn. Ct. App. 1988). � � Reported: Taped, two tapes MEMORANDUM fl � - �q.� The facts of this matter are not significantly in dispute. The server at Megusta took the order for beer from two underage persons and brought back fwo beers. The server maintained at the hearing that he asked for identification from the compliance checkers after putting one of the beers on the table. The server's testimony is contradicted by that of the officers who conducted the compiiance check.� The o�cers both saw the beers on the tabie and the server was out of sight. This situation lasted from the time fhe compiiance checker gave the prearranged signal to when the o�cers entered the restaurant. As the offcers entered the restaurant, the server returned to the table and asked the two underage persons for proof of age. State law and Saint Paul City Ordinance are clear that underage persons are not to be served alcoho! by licensees. Two beers were left with the underage persons while the server went to another table. By leaving the beer with the compliance checkers and stepping away from the table, the server had de{ivered the beer into the possession of those underage persons and had lost any ability to control the consumption of the beer by those persons. Those acts constitute violations of the prohibitions against service alcohol to underage persons. Coming back to the table to ask for proof of age does not cure the violation. The use of compliance checkers is reasonable to allow LIEP some means of determining whether underage sales of alcohol are being made by licensees. The close monitoring and carefui instruction of the underage persons involved acts to protect licensees from undue disruption to their businesses. While the Notice of Violation and the Notice of Hearing both contained an error as to the date of the violation, Megusta was not prejudiced by this error. The facts of the situation were fully known by Licensee and there were no di�culties in preparing for the hearing that were caused by the error. The Licensee has received adequate notice of the alleged violation and a full opportunity to defend against the ailegation. LIEP has demonstrated by a prepcnderarc� of the evidence that Megus;a served alcohol to underage persons in violation of Sec. 409.26(b)(3) of the Saint Paul Legisiative Code and Minn. Stat. § 340A.503. The presumptive penaity is $500.00, and there are no facts in the record that suggest deviation from that penalty is appropriate. Sec. 310.05(k)(vii) of the Saint Paul Legislative Code permits the City Council to assess � The testimony of a patron at the restaurant was contradictory, at one point indicating the offcers immediately entered the restaurant when the beer was being served and at another point suggesting some short time passed before the offcers entered the restaurant. 8 Minn. Stat. § 340A.503; Saint Paul Legislative Code, Sec. 409.26. 9 Another method of determining whether underage sales are occurring is fior SPPD offcers to seize the licensed premises during business hours and examine identification of any patrons who appear to be close to Iegai age. The choice of enforcement method is within the discretion of the SPPD and LIEP. 5 OQ-\`LS the casts of this proceeding against Licensee. That assessment is at the sole discrefion of the Councii. S.M.M. 0