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02-1113CouncilFile# ��•\\�. Green Sheet # aoo a e,� RESOLUTION Presented B; Refened To 1 RESOLVED, that a fine of $400 is hereby imposed against the cigarette/tobacco license 2 held by Mahubeh Mustafa, d/b/a the Dale Selby Superette, and a$50 administrative fine is 3 imposed against Kanan M.T. Mustafa, the clerk who sold tobacco products to a minor on June 4 14, 2002 at the store. FURTHER RESOLV ED, that the findings of fact and conciusions of law contained in the AI.J Report in this case dated September 23, 2002 aze adopted as the written findings and conciusion of the Council in this matter. 10 This Resolution is based on the record of the proceedings before the AI,J, including the ll hearing on September 18, 2002, the documents and exhibits introduced therein, the findings of 12 fact and conclusions of law of the AI,J as referenced above. Kanan M.T. Mustafa and the 13 licensee waived their appearance at the public hearing before the Council on October 23, 2002, 14 and paid the fines in full. 15 16 A copy of this Resolution, as adopted, shall be sent by first class mail to the 17 Administrative Law Judge and to the Licensee. 18 �,`. � � Mayor: Date By' Requested by DeparLment of: CITY OF SAINT PAUL, MINNESOTA \g Adoptiory�Certi£ied by Covncil Secretary DEPAR'1'MENT/OFFICE/COUNCIL: DATE INTTTATED GREEN SHEET No.: 200283 LIEP November 8, 2002 d�-\\� CONTACi' PERSON & PHONE: IISYPIaLDATE llN1Tia71DATE Virginia Palmer (266-8710) � nErniz�arrr Dm. crrY covxcn. MUST BE ON COUNCIL AGENDA BY (DATE) �SIGN _ CITY ATCORNEY _ CITY CLERK FAIANCIAL SERV DII2. FINANCIAL SERV/ACCTG November 27 � ZOOZ �C011SeIlt� FN�Uh�IBER — MAyOR(ORASST.) _CNII.SERVICECOMMiSSION ROUTING ORDER TOTAL # OF SIGNAI'URE PAGES _(CLIP ALL LOCATIONS FOR SIGNA'I'�JRE) ncriox �xeQuES�n: Adverse acfion against the Cigarette license held by Mahubeh Mustafa d/b/a Dale Selby Superette, located at 618 Selby Avenue and the clerk Kanan M.T. Mustafa RECOMMENDATSONS: Approve (A) or Reject (R) PERSONAI. SERVICE COIiTRACTS MUST ANSWF.B THE FOLLOWING QUESTIONS: PLANNING COMMISSION I. Has this person/firm ever worked under a contract for this departrnent? CIB COMMIITEE Yes No CNQ. SERVICE COMMISSION 2. Has this person/firm ever been a ciry emptoyee? Yes No 3. Dces [his person/firtn possess a skill not norsnally posse55ed by any cmrent ciTy employee? Yes No Explain all yes answers on separate sheet and attach to green sheet INI77A17NG PROBLEM, ISSUE, OPPORTIJNI7'1 (Whq What, Wheq Where, Why): Mahubeh Mustafa d/b/a Dale Selby Superette, failed a June 14, 2002 cigarette compliance check. Kanan M.T. Mustafa was the clerk who sold the cigarettes. � �� `^S R:M1 TM,'.'. ,d . wY' ��,' �s4's�61 �� ,>"' ADVANTAGES IF APPROVED: S'y�� '� Council action necessary to enforce penal6es for license violations. ' DISADVANTAGESIFAPPROVED: _ " None. DISADVANTAGES IF NOT APPROVED: No penalty will be imposed for license violations. TOTAL AMOUNT OF TRANSACTION: $ COST/REVENUE BUDGETED: FONDING SOURCE: ACTNTTY NUMBER: FiNANCIAL INFORMATION: (EXPLAIN) r �ussus�e,wcsoxrn�n«� - ��g� w�� a .�a OFFICE OF THE CITY ATTORDIEY 0�� Mnmrel J. Cervnntes, Cirp Attorney 3g - CITY OF SAINT PAUL Rnndy� C. Kelly, Ma}�ar civilDir;sion 400 Ciq� Ha!! IS fVest Ke(logg Bh'd. Sain! Pa:d, blinnesatn Si102 Telephone: 65! 266-Si10 Facstmi[e: 65/ 293-5619 September 27, 2002 NOTICE OF COUNCIL HEARING Vincent R. Waters Attomey at Law 400 Executive Office Center 2785 White Bear Avenue North Maplewood, Minnesota 55109 RE: Cigarette Sale To Underage Person Violation Ci�arette/Tobacco License held by Mahubeh Mustafa, d/b/a Dale Selby Superette for the premises at 618 Selby Avenue in Saint Paul, License ID#:19990006162; AND Kanan Mustafa, Clerk for Dale Selby Superette Dear Mr. Waters: Please take notice that a hearing on the report of the Administrative Law Judge conceming the above-mentioned violation has been scheduled for 5:30 p.m., `Vednesday, October 23, 2002, 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 �vith the City Clerk at any time during normal business hours. You may also present oral or written arguments to the council at the hearing. No new evidence will be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Administrative Law Jud�e and on the arguments 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� er Assistant City Attomey cc: Mahubeh Mustafa, Dale Selby Superette, 618 Selby Ave., St. Paul, Minnesota �5102 Kanan M T Mustafa, 618 Selby Ave., St. Paul, Minnesota » 1 �i2 Naney Anderson, Assistant Council Secretary, 316 City Hall Christine Rozek, Deputy Director of LIEP AA-ADA-EEO Employcr o �._��' 12-6020-15028-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE COUNCIL OF THE CITY OF SAINT PAUL In Re The Cigarette/Tobacco License Held by Mahubeh Mustafa, d/b/a Dale Selby Superette, and Adverse Action Against Kanan M. T. Mustafa, the Clerk for Dale Selby Superette FINDINGS OF FACT, CONCLUSIOfVS OF LAW, AND RECOMMENDATION A hearing in this matter was held by Administrative Law Judge Steve M. Mihalchick on September 18, 2002, in Room 40-B of the St. Paul City Hall. There were no post-hearing submissions. Vincent F. Waters, Attorney at Law, 400 Executive Office Center, 2785 White Bear Avenue, Maplewood, Minnesota, appeared on behalf of Dale Selby Superette and on behaif of Kanan Mustafa personaliy (the Respondents). Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102, appeared on behalf of the City's Offce of License, Inspections and Environmental Protection (LIEP). This report is recommendation, not a final decision. The St. Paul City Council will make the final decision after review of the record and may adopt, reject, or modify these.Findings of Fact, Conclusions, and Recommendation.� Pursuant to Minn. Stat. § 14.61, the City Council shail not make a finai 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 Councii's decision must be served on the parties and the Administrative Law Judge by first class mail. Parties should contact Donald Luna, City Clerk, City of St. Paul, 170 City Hail, 15 West Kellogg Bivd., St. Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. STATEMENT OF THE ISSUES Whether substantial and compelling reasons exist for deviating from the presumptive penalty in this matter. The Administrative Law Judge concludes that they do not. � St. Paul Legislative Code Section 310.05 (c-1). Z The Notice of Hearing states that the procedurai requirements of Minn. Stat. § 14.57 to 14.62 and St. Paul Legislative Code Section 310.05 apply. ' Minn. Stat. § 14.62, Subd. 1. �� _ �� Based upon fhe exhibits, tesfimony, sfipulation, and argument of counsel, the Administrative Law Judge makes the foilowing: FINDINGS OF FACT 1. The Dale Seiby Superette has been licensed since 1999. It is a family business owned and operated by brother arid sister, Kanan Mustafa and Mahubeh Mustafa. The license is held by Mahubeh who pertorms administrative, buying, and other functions for the store, but in accordance with the family's religious traditions, does not work in the store where she would have extensive public contact. Kanan operates the store and is its only clerk. He is the only person who makes sales at the cash register. Another brother previously worked in the store, but has nof done so for several months. 2. Mr. Mustafa works every day at the store from the time it opens at 8:00 a.m. until it cioses at 11:00 p.m. Thus, he works over 100 hours per week at the store. He is assisted by one employee, Ricky Fortune, who works almost as many hours stocking, cleaning, and occasionaliy assisting customers, but not operating the cash register. 3. On March 8, 2000, the City Council approved the store's appiication for Malt Off Sale, Grocery (c), and CigaretteslTobacco licenses, but with certain conditions. The store passed a tobacco compliance check on April 20, 2000, and a University of Minnesota alcohol compliance check on November 22, 2000. It passed additional tobacco compfiance checks on April 11, 2001, and June 26, 2001 4 4. On February 27, 2002, the store failed a tobacco compliance check when Mr. Mustafa failed to ask an underage agent for identification. The store paid the $200.00 presumptive penalty for the first failure of a compliance check and Mr. Mustafa paid the $50.00 penalty for being an individual who sold tobacco to a person under the age of 18. Mr. Mustafa admits that he made a mistake on February 27, 2002, in not asking for identification. 5. The store has severai signs posted notifying customers that they must be 18 to purchase tobacco products. It also has a calendar on the counter indicating the date on which a person must have been born to be 18 years old. Mr. Mustafa routinely obtains identification from anyone requesting tobacco who doesn't look to be at least 32 years old. 6. On June 14, 2002, a tobacco compliance check was conducted at the store. A 17-year-old male, retained for that purpose by the Office of License, Inspections and Environmentai Protection, entered the store at approximately 2:43 ° Exhibit 1 5 Exhibit 3 2 O a-��3 p.m. and asked to buy a pack of Marlboro Lights cigarettes 6 Mr. Mustafa asked the youth for identification and the youfh produced his Minnesota instruction Permit, which accurately stated his birth date as "04/11/1985." Lower in the body of the permif, the following appeared: 21ST BIRTH DATE: APR-11-2006 18TH BIRTH DATE: APR-11-2003� 7. Mr. Mustafa did not examine the permit closely. He examined only the month and date of the birth date and, seeing that it was April 11 assumed that the youth had just turned 18 two months earlier and looked no further. Mr. Mustafa sold the youth the pack of cigarettes. 8. Mr. Mustafa admits that he made a mistake in not properiy calculating the youth's age and thinks perhaps he did so because of the long hours he works. He asserts that he intended to comply with the law consistent with his normai practice and that he just made a mistake. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following Conclusions: CONCLUSIONS 1. The St. Paul City Council and the Administrative Law Judge have jurisdiction in this case under St. Paul Legislative Code §§ 310.05 and 310.06 and Minn. Stat. § 14.55. All notice and other relevant procedurai requirements have been fuifilied. 2. Under Minn. Stat. § 609.685, Subd. 1a, it is a misdemeanor to sell tobacco to a person under the age of 18. Under Minn. Stat. § 461.12, Subd. 1, a city may license and regulate the sale of tobacco. The City of St. Paul has done so in St. Paul Legislative Code Chapter 324. Section 324.07 prohibits the sale of tobacco to anyone under the age of 18, among other things. Section 324.11 establishes presumptive penalties for sale of tobacco to a minor by a licensee of $200.00 for the first appearance before the Councii, $400.00 for the second appearance, a 30 day suspension for the third appearance, and revocation upon the fourth appearance. Section 324.11(a} allows the Councii to deviate from the presumptive penaities where the Council finds and determines_that substantial and compelling reasons exist that make it appropriate to do so. Minn. Stat. § 421.12, Subd. 3, directs that an individual who selis tobacco to a person under the age of 18 musf be charged an administrative penalty of $50.00. No parallel provision appears in the St. Paui Legislative Code. 6 Exhibit 1 ' Exhibit 8 3 0'� -��3 3. Dale Selby Superette and Mr. Mustafa have admitted and stipulafed that Mr. Mustafa sold a pack of cigareftes to a person under the age of 18 on June 14, 2002, that a violation has occurred, and that sanctions are appropriafe. 4. Respondents request fhat the presumptive penalty of $400.00 for a second instance be reduced because of Mr. Mustafa's good faifh attempt to verify the young man's age. It is aiso noted that the store had passed four previous compliance checks before failing fhe last finro. Licenses and permits issued to persons under 21 say "under 21" on them, but there is no difference between licenses and permits issued to persons under 21 from licenses and permifs issued to persons under 18. Thus, the only way to check the age is to check the birth date on the license or permit or the "18 birth date" printed on the license or permit. It may get boring and repetitive, but it seems obvious fhat the first thing to check is the year, not the month and date. Mr. Mustafa acted in good faifh in checking the date, but he was very careless in not checking the year. That was his duty. It cannot be said that substantial and compelling reasons to deviate from the presumptive penalty exist. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS RESPECTFULLY RECOMMENDED that the Councii impose the presumptive penalty of $400.00 upon Licensee and the statutorily required administrative penalty of $50.00 upon Mr. Mustafa. Dated this 23` day of September, 2002 ' < � �- �— _� STEVE M. MIHALCHICK Administrative Law Judge Reported: Tape recorded-one tape MEMORANDUM Respondents cite State v. Neisen, 415 N.W.2d 326 (Minn. 1987) for the proposition that it is a defense if the clerk makes a good faith effort to determine the age of an underage purchaser. The case involved a criminai charge against an owner of a liquor store for selling intoxicating liquor to a minor. The Court interpreted several changes in the liquor laws and determined that the "carding defense" is available where the underage person produces a license showing them to be of age, if the license 8 LIEP provided a Minnesota identification card tirochure at the hearing that showed the various cards. o �_�� would convince a carefui and prudent person that it is valid. The Court noted that if the purchaser actually showed their own license, "there would either be no sale and no need for the carding defense, or if the sale were neverEheless made, the carding defense would be of no avail." Thus it is here, the "carding defense" is of no avail. More importantly, Mr. Mustafa was not as "careful and prudent" as he should have been. Based on fhe prior compiiance checks, one of which he had failed, and his own knowledge of tobacco sales, he was well aware that the law prohibits sales to persons under the age of 18. He had a duty to examine the identification card more carefuily. SMM N7 STATE OF MINNESOTA OFFICE OF ADI�IINISTRAZTVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 September 25, 2002 Donald Luna, City Clerk City of St. Paul 170 City Hall 15 West Kellogg Blvd. St. Paul, MN 55102 Re: The CigarettelTobacco License Held by Mahubeh Mustafa, d/bla Dale Selby Superette, and Adverse Action Against Kanan M.T. Mustafa, the Clerk of Dale Selby Superette OAH Docket No. 12-6020-15028-3 Dear Mr. Luna: Enclosed is a copy of the hearing tape for the above referred to file. Sincerely, ��--- °l�a�"^.c�-rz-�� Nancy J. Hansen Legai Secretary Enclosure Providing impartial Hearing for Govemment and Citizens An Equal Opportunity Employer Administrative Law Section & Administrative Services (612) 341-7600 • TTY No. (612) 341-7346 • Fax No. (612) 349-2665 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 September 23, 2002 Donald Luna, City Clerk Ciry of St. Paul 170 City Hall 15 West Kellogg Blvd. St. Paul, MN 55102 Re: The Cigarettelfobacco License Held by Mahubeh Mustafa, D!b!a Dale Selby Superette, and Adverse Action Against Kanan M.T. Mustafa, the Clerk for Dale Selby Superette OAH Docket No. 12-6020-15028-3 Dear Mr. Luna: Encloseci herewiih and served upon you by mail is the Administr?±ive Law Judge's in the above-entitled matter. Also enclosed is the official record, with the exception of the tape recording of the hearing. There is one tape and it will be sent to you under separate cover. Our file in this matter is now being closed. Sincerely, � � � �'?�--�.a.(Z�-R.�-c� SM : nh Encl. cc Vincent F. Waters Virginia D. Palmer Steve M. Mihalchick Administrative Law Judge Telephone: 612-349-2544 Providing Impartial Hearing for Government and Gitizens An Equal Opportunity Employer Administrative Law Section & Administrative Services (612) 341-7600 � TTY No. (612) 341-7346 • Fax No. (612) 349-2665 12-6020-15028-3 STATE OF MiNNESOTA OFFICE OF ADMINISTRATNE HEARiNGS FOR THE COUNCIL OF THE C1N OF SAINT PAUL In Re The CigarettelTobacco License Held by Mahubeh Mustafa, d/b/a Dale Selby Superette, and Adverse Action /�qainst Kanan M. T. Mustafa, the Clerk for Dale Seiby Superette FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION A hearing in this matter was held by Administrative Law Judge Steve M. Mihalchick on September 18, 2002, in Room 40-B of the St. Paul City Hall. There were no post-hearing submissions. Vincent F. Waters, Attorney at Law, 400 Executive Office Center, 2785 White Bear Avenue, Map{ewood, Minnesota, appeared on behalf of Dale Selby Superette and on behalf of Kanan Mustafa personally (the Respondents). Virginia D. Palmer, Assistant City Attorney, 400 City Ha11, 15 West Kellogg Boulevard, St. Paul, MN 55102, appeared on behalf of the City's Office of License, Inspections and Environrrental Protection (LiEP). This report is recommendation, not a final decision. The St. Paul City Council will make the final decision after review of the record and may adopt, reject, or modify these Findings of Fact, Conclusions, and Recommendation.� Pursuant to Minn. Stat. § 14.61, 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 should contact Donald Luna, City Clerk, City of St. Paul, 170 City Hall, 15 West Kellogg Bivd., St. Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. STATEMENT OF THE ISSUES Whether substantial and compelling reasons exist for deviating from the presumptive penalty in this matter. The Administrative Law Judge concludes that they do not. ' St. Paul Legisiative Code Section 310.05 (c-1). 2 The Notice of Hearing states that the procedural requirements of Minn. Stat. § 14.57 to 14.62 and St. Paul Legislative Code Section 310.05 apply. 3 Minn. Stat. § 14.62, Subd. 1. Based upo� the exhibits, testimony, stipulation, and argument ofi counsel, ihe Administrative Law Judge makes the foffowing: FINDINGS OF FACT 1. The Dale Selby Superette has been licensed since 1999. It is a family business owned and operated by brother and sister, Kanan Mustafa and Mahubeh Mustafa. The license is held by Mahubeh who perForms administrative, buying, and other functions for the store, but in accordance with the family's religious traditions, does not work in the store where she would have extensive public contact. Kanan operates the store and is its only clerk. He is the only person who makes sales at the cash register. Another brother previously worked in the store, but has not done so for several months. 2. Mr. Mustafa works every day at the store from the time it opens at 8:00 a.m. until it closes at 11:00 p.m. Thus, he works over 100 hours per week at the store. He is assisted by one employee, Ricky Fortune, who works a{most as many hours stocking, cleaning, and occasionally assisting customers, but not operating the cash register. 3. On March 8, 2000, the City Council approved the store's application for Malt Off Sale, Grocery (c), and Cigarettes/Tobacco licenses, but with certain conditions. The store passed a tobacco compliance check on April 26, 2000, and a University of Minnesota alcohol compliance check on November 22, 2000. It passed additional tobacco compliance checks on April 11, 2001, and June 26, 2001. 4. On February 27, 2002, the store failed a tobacco compliance check when Mr. Mustafa failed to ask an underage agent for identification. The store paid the $200.00 presumptive penaity for the first failure of a compliance check and Mr. Mustafia paid the $50.00 penalty for being an individual who sold tobacco to a person under the age of 18. Mr. Mustafa admits that he made a mistake on February 27, 2002, in not asking for identification. 5. The store has several signs posted notifying customers that they must be 18 to purchase tobacco products. It also has a calendar on the counter indicating the date on which a person must have been born to be 18 years old. Mr. Mustafa routinely obtains identification from anyone requesting tobacco who doesn't look to be at least 32 years old. 6. On June 14, 2002, a tobacco compliance check was conducted at the store. A 17-year-old male, retained for that purpose by the Office of License, Inspections and Environmental Protection, entered the store at approximately 2:43 ° Exhibit 1 5 Exhibit 3 2 p.m. and asked to buy a pack of Marlboro Lights cigarettes. Mr. Mustafa asked the youth for identification and the youth produced his Minnesota Instruction Permit, which accurately stated his birth date as "04/11/1985." Lower in the body of the permit, the foliowing appeared: 21ST BIRTH DATE: APR-11-2006 1STH BIRTH DATE: APR-11-2003� 7. Mr. Mustafa did not examine the permit closely. He examined only the month and date of the birth date and, seeing that it was April 11"', assumed that the youth had just turned 18 two months earlier and looked no further. Mr. Mustafa sold the youth the pack of cigarettes. 8. Mr. Mustafa admits that he made a mistake in not properly calculating the youth's age and thinks perhaps he did so because of the long hours he works. He asserts that he intended to comply with the law consistent with his normal practice and that he just made a mistake. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following Conclusions: CONCLUSIONS 1. The St. Paul City Council and the Administrative Law Judge have jurisdiction in this case under St. Paul Legislative Code §§ 310.05 and 310.06 and Minn. Stat. § 14.55. All notice and other relevant procedural requirements have been fuifilled. 2. Under Minn. Stat. § 609.685, Subd. 1a, it is a misdemeanor to sell tobacco to a person under the age of 18. Under Minn. Stat. § 461.12, Subd. 1, a city may license and regulate the sale of tobacco. The City of St. Paul has done so in St. Paul Legislative Code Chapter 324. Section 324.07 prohibits the sale of tobacco to anyone under the age of 18, among other things. Section 324.11 establishes presumptive penalties for sale of tobacco to a minor by a licensee of $200.00 for the first appearance before the Council, $400.00 for the second appearance, a 30 day suspension for the third appearance, and revocation upon the fourth appearance. Section 324.11(a) allows the Council to deviate from the presumptive penalties where the Council finds and determines that substantial and compelling reasons exist that make it appropriate to do so. Minn. Stat. § 421.12, Subd. 3, directs that an individual who sells tobacco to a person under the age of 18 must be charged an administrative penalty of $50.00. No parallel provision appears in the St. Paul Legislative Code. 6 Exhibit 1 � Exhibit 8 3 3, Dale Selby Superette and Mr. Mustafa have admitted and stipulated that Mr. Mustafa sold a pack of cigarettes to a person under the age of 18 on June 14, 2002, that a violation has occurred, and that sanctions are appropriate. 4. Respondents request that the presumptive penalty of $400.00 fo� a second instance be reduced because of Mr. Mustafa's good faith attempt to verify the young man's age. 1t is also noted that the store had passed four previous compiiance checks befiore fiailing the last two. Licenses and permits issued to persons under 21 say "under 21" on them, but there is no difference beiween licenses and permits issued to persons under 21 from licenses and permits issued to persons under 18. Thus, the only way to check the age is to check the birth date on the license or permit or the "18 birth date" printed on the {icense or permit. It may get boring and repetitive, but it seems obvious that the first thing to check is the year, not the month and date. Mr. Mustafa acted in good faith in checking the date, but he was very careless in not checking the year. That was his duty. It cannot be said that substantial and compelling reasons to deviate from the presumptive penalty exist. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION 1T IS RESPECTFULLY RECOMMENDED that the Council impose the presumptive penalty of $400.00 upon Licensee and the statutorily required administrative penalty of $50.00 upon Mr. Mustafa. Dated this 23` day of September, 2002 i � �— - — � � STEVE M. MIHALCHICK Administrative Law Judge Reported: Tape recorded-one tape MEMORANDUM Respondents cite State v. Neisen, 415 N.W.2d 326 (Minn. 1987) for the proposition that it is a defense if the clerk makes a good faith eifort to determine the age of an underage purchaser. The case invo{ved a criminal charge against an owner of a liquor store for selling intoxicating liquor to a minor, The Court interpreted several changes in the liquor laws and determined that the "carding defiense" is available where the underage person produces a license showing them to be of age, if the license $ LIEP provided a Minnesota identification card brochure at the hearing that showed the various cards. � would convince a careful and prudent person that it is valid. The Court noted that if the purchaser actually showed their own license, "there would either be no sale and no need for the carding defense, or if the sale were nevertheless made, the carding defense wouid be of no avail." Thus it is here, the "carding defense" is of no avail. More importantly, Mr. Mustafa was not as "careful and prudenY' as he should have been. Based on the prior compliance checks, one of which he had failed, and his own knowledge of tobacco sales, he was well aware that the law prohibits sales to persons under the age of 18. He had a duty to examine the identification card more carefully. SMM s / OFFICE OF ADMINIS'TRATIVE HEARINGS FOR'THE COUNCII, OF TAE CITY OF SAIIVT PAUL In Re the Cigarette/Tobacco License held by Mahubeh Mustafa, dlbla Dale Selby Superette and Adverse Action Against Kanan M. T Mustafa, the Clerk for Dale Selby Superette EXHIBTTS September 18, 2002 TO: Judge Steve M. Mihalchick, Administrative Law 7udge, Office of Administrative Hearings, 100 Washington Squaze, Suite 1700, Minneapolis, Minnesota 55401 The following constitutes a list of the City's proposed exhibits for the Administrative Hearing on September 18, 2002. (} �id� I�L. ; E�ibit No. Exh. No. 1 Exh. No. 2 Exh. No. 3 E�. No. 4 Exh. No. 5 E�. No. 6 Description License information (4 pp.); Tobacco Compliance Check Purchase Form, dated June 14, 2002 (2 pp.); Youth Consent Form and Parental Consent Fonn/Emergency Medicai Consent Form, dated February 26, 2002 (2 pp.); Notice of Violation, dated July 15, 2002, with Affidavit of Service (3 pp.); Notice ofAdministrative Fine, dated July 15, 2002, with Affidavit of Service � PP�); Faaced letter dated August 8, 2002, from Vincent Waters to Virginia Palmer � P•)> � �� c � E�. No. 7 Notice of Hearing, dated August 14, 2002, with Affidavit of Service �� PP•)• �Xti �� C� � �; �, � 4� � �2�,,G�. Also attached please find courtesy copies of applicable St. Paul City ordinances: St. Paul Legislative Code § 310.05 St. Paul I,egislative Code § 310.06 St. Paul L,egislative Code § 310.1� Minn. Stat. § 340A.503 Minn. Stat. Chapter 461 Respectfully submitted this 18th day of September 2002. (/(9t2 �/u-u'.�- � �C'ti-C -�-� Vir ' ' D. Palmer Assistant City Attorney Office of The City Attorney 400 City Hall 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 (612)266-8710 Licerrse ^wroup Comments TeM Licensee: MAHUBEH MUSTAFA DBA: DALE SELBY SUPERETTE License#: �gg90006162 07l05/2002 07/OS/2002 To CAO for adverse action. CAR 06/1412002 Failed tobacco compliance check. Clerk was Kanan Mustafa. Second failure, $400 matrix penatty. CAR 03/25/2002 $50.00 rcvd from clerk Kanan Mustafa for cig sales violation.ES 03/25/2002 $200.00 rcvd 4or cig sates violation.ES 03/06/2002 Notice of Administration Fine from CAO for sale of tobacco products to a minor- $50 fine. Given to 03N8/2002 to respond. SS 03l05l2002 Notice of volation from GAO for the 02l2712992 sale of tohacco products to a minor. Rewmmendation is for $200 fine. Must respond by 03/15l2002. SS 02/28/2002 To CAO for adverse action. CAR � 02/27/2002 Failed tobacco wmpliance check.Clerk was Kanan M T Mustafa. First hilure, $200 fine. CAR 06/26/2007 Passed tobacco compliance check. SS 04/1ll2001 Passed tobacco compliance check. SS 11/22/2000 Passed U of M alcohol compliance check. SS 04/26l2000 Passed tobacco compliance check. SS 03/08/2000 Resolution 00-107 Council approved application for Malt Off Sale, Grocery (c), and Ciglfobacco license with conditions. CAA �t/31l20�0 Gerty Skathman to recommend to council for appraval: 2I9. CAA 72/03/7999 Legislative Hearing Sched for 1/37. CAM 12/02/1999 infortned Robin, State Dept of Commerce Enforcement, of suspected check cashing. State will investigate. CAM 11/30/1999 Suspected check cashing. LRZ is investigating. Resutts: KS/CAM 11/1/99 - Notfication response date 12/3l99, notices mailed 11/1/99; 88M & 43EM/JL 10/27/1999 letter rcvd to confirm owner and assUmgr are relocating to st paul from Dayton. OH. CAM 10/18/1999 AssUMgr, Kanan, is hand-delivering a written statement that his current address is in OH; but he is in the process of moving to St Paul. CAM 10/1571999 hold pending CAO advise on applicants residing out of state. CAM 10/11/1999 Keep an eye on this app, owner and managedassistant reside in Ohio. CAM 09/27lt999 Previous owrter applied under incorred address at 616 Sefby. CAM � � K M T e � b City'sExh. NoNl� j , ��r�� rraa � woa�r r u�e„sx r wm�ram a aa �ven s ta Street Namc B.BY ._ ' " " _' _ ' "_ __" " "_ " Slreet TyPe � _ ' _ ' _ " D'vectiore <PA � Llnd t r� crc� � x :- y-et , �_M�m� �' __ - - - -- — — - -- ---- --- ---'—_`_ __ =_�: tnss MAF1UB61 hNST%DALE SftBV SUP6tE'Almn Pamd (New�'A.ctive ��a,se Typei i Strei , 1 Strei Licerue Stre9 � property Qid� y Sfredf. � � Stred Namc �3 SfredTypa Uni Y# i C&y. I �e: % � MYera � i D'at Counci �� 3 i� �� z iDBA �� Sales Tax Id' �$ Felse Nerms , PJ�m Permd I � False Al�ms i i �Licwse# _ , � � � . .... DBA �ALE SfiEY SU7ERETiE —. Ixensee ,: _Lic. TYP�s _ I. hsurexe _�� _ Bad_ _ � tte9�6emerds, .' ._ _ __ ... _ . (= Licerrsee C` Unoffitlal ProjeCFecdastor: ASUNCION�CORQJNE g Advase Actlan Comma¢s iBY AVE Dlrectlorc r lH3 t �� zRC ss�o2 ��osnanoozFaawroeacmc��ran�e chack, perk was Karren Mustafa. Secontl te�.ve, S490n�atra penaty. C1+R 0325R002550.00 rcvd from Uerk Kar�n Afi�Vafe llcafuee Cwmnctls Bus 2 N—"_ __. �'.___` N '_"_ ' ,..: Licxax IuAJSTAFA _' _'_' _'___' _ " "' ' DBA 59EV SL�6'tETTE � -; 3req License Ixenxe Lic.TYPce hsurer�ce �' _ F3?ntl_ � Re9�mrerts, Stre': Licensee Neme: 0.QLSTPFA '�� _ Dvbj DB& ALE SfleY SI�ERETTE UnR � Ss1es Tax id � Non�ProtR: C Worku's CvmR � �� AA CoNred Rec'd �00 � AA TrotrJng Rec'd �+110AOOD . �, AA Fee CoAecteS OOrt10a0 Oiscourd Rec'd � i pye�� Ucerrses Finawie� kbld Reasans 5 a �"�t� nh,"�e4�te�ek�3P�is�,�s�,�e'Liceiur'�t�4+±t�u#'"i ' _ �Md Licuue Ta — C•' Me2 To Cadact r ticmx fWtlress t` MeiTOCOrtaC! �' Lcense Adtlrtu Backryountl Check Raµred r Seve OFFICE OF LICENSE, INSPECT[ONS AND ENVIIt0t3MENTAL PRO'S'ECSION Roger C. Curtis, Director C1TY OF SAINT PAUL Randy C. Ke!!y, Mayor Case # LOWRYPROFESSIONALBUfLDING Telephone: 651-266-9090 350 St Peto Sueu, Suite 300 Facsiml7e: 657-266-9114 Sairst Pau1. M'vuiuom 55l02-I SIO Web: www.ci.stpmd.mn.vsRiep Tobacco Compliaace Check Purchase Form Far Office Use Ovly MAHUBEH MUSTAFA Compliance Check ID.II Busiaas LD. $ DALE SELBY SUPERETfE P " �` Post Ordinance 618 SELBYAVE ST PAUL MN 55'102 Affix I,abei Here Business Type: � Convenience � Conveuience / Gas � Gas � Drug Store / Pharmacy � Tobacco / Smoke Shop �upemiarket! Grocery � Genecal Mezchant � Liquor Store ! Baz Restautant � Otllet (pcivate c1ub, 6awling, etc,� '�6 � i`/ � o�- Date: M M D D Y Y Was purchase attempted? If NO, check reason: Time: � . � a.m. /� �Yes � No �Does not sell tobacco �Unsatisfactory/unsafe conditions � Out of business � Other �After business hours �Not applicable Buyer � �� Use 3 initials le made? Y� es oj No �� Type of purchase: A¢e Sea 15 Female �16 Male C`�" Was age � Yes or �� Self Service t/Clerk assisted Vending machine - Unlocked Location of machine V ending machine - Locked Locarion of machine Cterk Informatia¢: � Female �Ma1e Adult �� Use 3 initials requested? Y� es ;nr No �� Did adult or o�cer view transaction? Yes or � as shown? Yes � or No Type of product: • A�m spent: $ � � . 0 � t� igarettes j'�%{,�.r �� c � o Li 9�7S Smokeless _Cigats _Other (cigarette papers, lighter, etc.) Approzimate Age: � Undee 18 Civil Penalry $ Licensce: Civil Prnalry S For O(f ce Use Only Criminal Penalty $ Actual age if lmawn� II 18 and Over Suspensim:_I O days or less _ 1 I m? I dan _ 11 _32 days «• 0 V0 S8 C OL A alI1S� mMustafa d/b/a Dale Selby�upe C 1V13llIID8ll �I rette AND m 7 11'slllaL lYl. 1. 1V1LLJL'd1S I.SlV�S E�X}l. NO. � ' ` Name of Cierk:_�ca i� ct y�, �� -- 1 � -- ( � � �7 Date ofBirth Address: Driver's License # or State I. D.#: _ yh�/` i,� 3� j'j� .� �� -- '� f(��' —S6 6� S� �1A�� s�,�� r OFFICE OP LiCENSE, INSPECTiO\S Ail'D ENVIRON�fENTAL PROTECT(ON KobenKessler, Drrectar CITY OF SAINT PAUL Norm Coleman, ;�{ayor LOIVRYPROFESSlON,fL BUILDlh'G Suite 300 35� Sc Peter Stseet Saint Paul, �finnesota 55102-I510 Telephone: 612-266-9090 Facsimile: 612-266-9099 612-266-9124 Youth Consent Form \Tame: V � `� . _ TS. _ - � D of Binh: � u� S MaIe_ _ Female - Address: � �' � — _ Phone: (�' _ �1----- ----�— Inshuctions: Cazefully read each line below. Please zsk questions about anythin� you mighi not completely understand. Your signature indicates that you do undzrstand and aze willing to abide by all the terms of this agreement. I understand that the puipose of the compliance checl:s is to assess the cu:rent sale of tobacco and a]cohol to undera�e youth by attempting to puzchase these producu. I understand and agree that I am not to pursue or participate in any operation relatin� to alle�ed tobacco or a2cohol sales ti•iolations unless I am undcr the d'uect supervision of the City of St. Paul, Office of License, Inspections & Environmental Protecuon's adult supervisoc oc the Saint Paul Police Department I understand that spec�c information about the unannounced compliance checks of tobacco and alcohol retai] oudets is confidential and agree that I will not discuss outcomes or details of specific inspections, including but not limited to: retail locations, retail staff makin� sales to undezage buyers, and City of St. Paul, Office of License, Inspections & Environmental Protection's staff involved in the compliance check unIess d'uected by project staff. I a�ree not to violate any laws or coaunit any crimes while participating in unannounced compliance checks of retail tobacco and alcohol outleu. I understand that if I violate any laws, except the one I am granted immunity from, that I may be responsble for those violations. I a�ree to relinquish ail tobacco and alcohol products purchased as the result of these compliance checks, any cl�an�e and all ....... _a .......e., :.. �ho �A,�Ir ::,n�...;a:.. I understand that an unannounced compliance check of tobacco or alcohol retail out]ets will commence at the time I meet the designated adult supervisor for scheduled opentions. I further understand that each cnmpliance check will be considered tec:ninated at the time I exit the designated adult supervisor's vehicle at the conclusion of the compliance check and data callection session. I hzve participated in the training offered by the Office of License, Inspecrions & Env'uonznental Protection and, adhere to the protocol established by the dfFce of License, Inspectio s R Environmental Protection. T . `IT _ `' i � � `— Youth's Name (p]ease print) 1� t Youth's Signature '�— Date �YI ; ri r. �� J'2i ✓t.t'�'d ParendGuudian's Name (please print) -�� `�_�. Pazen Guardian's Signature Date �� . . i e ��, _,Niustafa d(b(a Dale Selby uperette AND Kanan M. T. Mustafa City's Exh. No. ' j I CITY OF S.�I�IT PAUL Korm Colemcn, .Lf� OFFICE OF LiCE\SE, RJSPECTIONS A�D ENV IRO\�f EV TAL PROTECTIQN Robc�r Kessler, Direaor LO�YRY PROFESSfOhL9L BO1LD .NG Suite 300 350 Sc Puer Sveet Snin: Paul. .tfinrtesota 5510?-ISIO T¢lepLone: 61= ?66-9090 Fftsimile: 6/?-?66-9099 61?-?66-9!?4 Parental Consent Form/Emergency �Iedical Consent Form I do hereby gi�•e pzmiission for my child �� _ l �. to purchase tobzcco and�or xlcohol products under direct adult supen'ision during compliance checks of retail outlets, conducted by the City of St. Paul, Office of Lice;ise, Inspzctions R Em�iionmental Protection andlor tt�e Saint Paul Police Depamnent to dzierm.ine whz3:zi they are in compiiance �rith Minnesota Statutes and Cit}• Ordinances which prohibits the sale of tobacco and alcohol produc[s to minors. I release, discharge, and hold barmless the State of Minnesota, its a�ents, officers, and employees, the Ciry of St. Paui, Ofiice of License, Inspections 8 Environmental Protection and the Sain[ Paul Police Depatanent from any actions and demands whatsoever, whe[herjoint ot szveral, on a1t potential claims, ac[ions and demands wha[soz��er, that now exist or may hereaRer ezis[, and including all clauns, actions, demands whatsoeeer based on matters now unl:nowa as well as l;no«n, and unanticipated as wel] as anricipated, in 2ny maher w•hauoe�•er, directly or indirectly resulting or to result from acriviry regarding my child's in�•ohement in compfiance chec} of the sale of tobacco and/or al;rohol products to minors. hty child's sen�ices are �roluntary and assumption of risks of injury or hartn are acczpred by the undzrsiened. I eive my consent to havino tIie abo�'e-signed participan[ treated by a physician or sur�eon at my e�pense in the case of a sudden illness or injury «�hile participating in minor's tobacco purchasing survey activities. If a pe:sonal physician is Lsted below', eve.y effort will be made to contact that physician. However, I understand that the location of the activiry or the nan:re of the illness or injury may requue the use of emergency medical personnel other than the physician or medical group listed below. Please provide the infocmation below if applicable. Please �� l Signamre o£ Parent e; Guardian D•:e � � �� OFFICE� THE CITY ATTORNEY Manuel J. Cervantes, Ciry Attomey CITY OF SAINT PAUL Randy G KeL1y, Mayor 7uly 15, 2002 Mahubeh Mustafa Dale Selby Superette CivilDivisiors 400 Ciry Hal1 IS West Kellogg Blvd Saint Paul, Mtnnesom SSIO2 NOTICE OF VIOLATION 618 Selby Avenue Saint Paul, Minnesota 55102 Telep{rorse: 65I 266-87l0 Fncsimi[e: 65l 298•56l9 RE: CigarettelTobacco License held by Mahubeh Mustafa, d/b!a Dale Selby Superette for the premises at 618 Selby Avenue in Saint Paul License ID #: 19990006162 Deaz Mr. Mustafa: The Office of License, Inspections and Environmental Protection has recommended adverse action against the CigarettelTobacco License held by you, d1b1a Dale Selby Supezette for the premises at 618 Selby Avenue in Saint Paul. The basis for the recommendation is as follows: On June 14, 2002, a tobacco compliance check was conducted at the premises of the Dale Selby Superette located at 618 Selby Avenue in Saint Paul. A 17 year old male entered the store and asked to buy cigarettes. He was asked to show his identification, and did so. It correctly stated his date of birth. The clerk nevertheless sold him a package of Marlboro Lights cigarettes. Sale of tobacw to an underage person is a violation of 14inn. Stat. §609.685 and Saint Paul Legislative Code §324.07. Since this is a second violation, the licensing office will recommend a$400.00 fine. At this time you have three options on how to proceed: " ��e verse c on gains a u e � �, �.'VIustafa d/b(a Dale Selby Superette AND m Kanan M. T. Mustafa City's Exh. l�o. 4 i AA-ADA-EEO Employei , ':' � ` If you do not dispute the above facts and do not wish to have a public hearing, you will need to pay the recommended fine for this violation. If this is your choice, you should make payment directly to the Office of License, Inspections and Environmentai Protection, Room 300 Lowry Professional Building, 350 Saint Peter Street, Saint Paul, Minnesota 55102. The letter should be directed to Ms. Christine Rozek. Payment of the fine will be considered to be a waiver of the hearing to which you are entitled. A self- addressed envelope is enclosed if this is your choice. 2. Altematively, if you do not dispute the above facts, but wish to have a publlc hearing before the Saint Paul City Council, you will need to send me a letter with a statement admitting the vialation and requesting a public hearing. We will need to receive your letter by July 29, 2002. The matter will then be scheduled before the City Council for a public hearing to deternrine what penalty, if any, to impose. You will have an opportunity to appeaz before the Council and make a statement on your own behalf. If you do dispute the above facts, a hearing will be scheduled before an Administrative Law Judge. At that hearing both you and the City will be able to appear and present wimesses, evidence and cross-examine the other's witnesses. The St. Paul City Council will ultimately decide the case. If this is your choice, please advise my legal assistant, Peter Pangborn, and we will take. the necessary steps to schedule the administrative hearing. He can be reached at 266-8710. If we have not heard from you by July 29, 2002, we will assume that you do not contest the facts and will schedule this matter for the St. Paul City Council and have it placed on the Consent Agenda during which no public discussion is allowed and the recommended penalty will be imposed. Please be advised that the clerk who was identified as having made the sale on this date is also being charged an administrative penalty pursuant to Minn. Stat. §461.12, subd. 3. This is a separate action from this license matter. If you have any questions, please feel free to contact me at (651) 266-8710. Sincerely, `�� ,GaGaCt--� ��'' �� Virginia D. Palmer Assistant City Attorney cc: Christine Rozek, Deputy Director of LIEP Nieeta Presley, Community Organizer, Aurora-St. Anthony Neighborhood Development Corp., 770 University Ave., St. Paul, MN 55104 AA-ADA-EEO Employer i • STATE OF MII`NESOTA ) ) ss. AFFIDAVIT OF SERVTCE BY MAIL COiTNTY OF RAMSEY ) JOANNE G. CLEMENTS, being first duly sworn, deposes and says that on July 16, 2002, she served the attached NOTICE OF VIOLATION placing a true and correct copy thereof in an envelope addressed as follows: Muhubeh Mustafa Dale Selby Superette 618 Selby Avenue St. Paul, MN. 55102 (which is the last known address of said person) depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and swom to before me this 16th day of July, 2002. �,�. _.�. �, .'�" ?,= -' - ��:GBORtv �. -' ea... ; g, (C . ��NNESO7A Not Public �= ' %��'�++ssioN � / . , :: :Ald. 37, 2005 ' � .> >, ..,� � � CITY OF SAINT PAUL R¢ndy G Kelly, Mayor July 15, 2002 OFFICE�Tf� CTTY ATTORNEY Manuel J. Cervweies, Ciry Anomey Civi[ Division 400 Ciry Ha[I IS West Ke1[ogg Blvd Saint Pau[, Minrsesota 55102 NOTICE OF ADNIIIVISTRATIVE FINE Kanan M T Mustafa 618 Selby Avenue Saint Paul, Minnesota 55102 RE: Sale of cigarettes to a minor Deaz Mr. Mustafa: Telephone: 651266-8710 Facsimi[e: 657 298-5679 The Office of License, Inspections and Environmental Protection has deternuned that you are subject to an administrative penalty of $50.00, pursuant to Minn. Stat. §461.12, subd.3. The basis for this detemunaCion is as follows: On June 14, 2002, an underage person entered the Dale Selby Superette store located at 618 Selby Avenue and asked to purchase cigarettes. You were later identified as the clerk behind the counter. The individual was a61e to purchase a package of cigarettes even though the identification he showed correctly stated his date of birth, which indicated that he was a minor. This sale was in violation of Minn. Stat. §609.685 and Saint Paul Legislative Code §324.07. Minn. Stat. §461.12 states that "an individual who sells tobacco to a person under the age of 18 years must be charged an administrative penalty of $50.00." If you do not wish to contest the fact that you sold tobacco to an individual under the age of 18 years, you may send your payment of $50.00 to the Office of License, Inspections and Environmental Protection, 300 Lowry Professional Buiiding, 350 Saint Petet Street, Saint Paul, Minnesota, 55102. A self-addressed envelope is enclosed if this is your choice. Alternatively, if you wish to contest the fact that you sold tobacco to an individua] under that age of 18 years, you are entitled to a hearing before an administrative law judge. If you wish to have such a hearing, please let me know in writing. You will then be sent a Notice of Hearing with [he time, date and place of the hearing and the name of the administrative law judge who will preside, and a brief description of the procedures which will be followed at the hearing. AA-ADA-EEO Employer ■ ' � � In either case, please let me know in writing no later than July 29, 2002, how you wish to proceed. If you have any questions, please feel free to contact me at (651)266-8710. Sincerely, �i � :.,�� Virginia D. Palmer Assistant City Attomey cc: Christine Rozek, Deputy Director of LIEP AA-ADA-EFA Employer '- �' � � STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY ) AFFIDAVIT OF SERVICE BY MAIL 70ANNE G. CLEMENTS, being first duly sworn, deposes and says that on 7uly 16, 2002, she served the attached NOTICE OF ADMINTSTRATIVE FINE placing a true and correct copy thereof in an envelope addressed as follows: Kanan M. T. Mustafa 618 Selby Avenue St. Paul, MN. 55102 (which is the last known address of said person) United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 16th day of July, 2002. Notary Public the same, with postage prepaid, in the PETEit P. PANGB�RR PlOTARY PUBLIG - MINtdESO?A MY G4fiRM1SSiO4V EXn�PES 3,4rd. 37, 2005 08/08/2662 17:22 6517735145 VINCE WATERS PAGE 01 Phone:(612)418-0555 VINCENT F. WATERS Artomey at Law 400 ExecuHve Office Center 2785 White Bear Avenue Maplewood, Minnesota 55109 August 8, 2002 Virginia D. Palmcr, Esq. Saint Paul Ciry Aaorney's OfTice Civil Division, 400 City Hall I S West Kellogg Blvd. St. Paul, MN 55102 i F�: (651) 773-514� ! V/A FACSIMILE Re: Kanan M.T. Mustafa � Dale Selby Superette — Sale of Cigarettes to a Minor Dear Ms. Palmer: After consuking with my client t have been instnicted to request a hearing before an Administrative Judge for thc abovrrcferenced matttts. Pltase send corrupondence co the above address. Thank yw. � . . �,- .�� . Vincent F. Waters, Esq. RUG-08-2002 18�a1 6517735145 I I � n e verse c on ams a u e � �Vlustafa dlbla Dale Selby�uperette AND � Kanan M. T. Mustafa City's Exh. No. 6 ' 1 � CITY OF SAINT PAUL Randy C. Ke[!y, Mayor AUguSt 14, ZOO2 Vincent F. Waters Attorney at Law 400 Executive Office Center 2785 VJhite Bear Avenue Maplewood, Minnesota 55109 OFFIC�F Tf� CITY ATTORNEY ManuelJ. Cervantes, CiryAttorney Civi7Division 400 Citp Hall IS Wut Saint Pau1, Minnesota 55l02 NOTICE OF HEARING Tel ephone: 651266-87! 0 Facsimile: 657 298-5619 RE: 1) Cigarette/'I'obacco License held by Mahubeh Mustafa, d/b/a Dale Selby Superette far the premises at 618 Selby Avenue in Saint Paul License ID #: 19990006162 2) Sale of Cigarettes to Underage Person by Clerk Kanan Mustafa Dear Mr. Waters : Please take notice that a hearing will be held at the following time, date and place conceming the CigazettelTobacco ]icense for the premises identified above, and with regards to the store clerk, Mr. Kanan Mustafa: Date: Time: Place: Wednesday, September 18, 2002 4:30 a.m. Room 40-B St. Paul City Hall 15 W. Kellogg 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: Telephone: Steve M. Mihalchick Office of Administrative Aearings 100 Washington Square, Suite 1700 Minneapolis, MN. 55401 612-349-2544 ■ e �NLustafa d!b(a Dale Selby uperette AND � AA-ADA-EEO sa,Pi Kanan M. T. Mustafa City's Exh. No. 7 y The Council of the�ty of Saint Paul has the authority to pravide for hearings concerning licensed premises and for adverse action against such licenses, under Chapter 310, including sections 310.05 and 310.06, 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 penalties or conditions. Evidence will be presented to the judge which may lead to adverse action against the Cigarette/Tobacco license held at the above premises and against the person of Mr. Mustafa as follows: On June 14, 2002, a tobacco compliance check was conducted at the premises of the Dale Selby Superette located at 618 Selby Avenue in Saint Paul. A 17 year old male entered the store and asked to buy cigarettes. Mr. Kanan Mustafa was later identified as the clerk behind the counter. The compiiance checker was asked to show his identification, and did so. It correctly stated his date of birth. Mr. Mustafa nevertheless sold him a package of Marlboro Lights cigarettes. Sale of tobacco to an underage person is a violation of Minn. Stat. §609.685 and Saint Paul Legislative Code §324.07. Further, Minn. Stat. §461.12 states that "an individual who sells tobacco to a person under the age of 18 years must be charged an administrative penalty of $50.00." 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 Judge will haue all parties identify themselves for the record. The City will then present its witnesses and evidence, each of whom you may cross- examine. You may then offer in rebuttal any witnesses or evidence you may wish to present, each of whom the City's attorney may cross-examine. The Administrative Law Judge 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 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 arguments may be made by the parties. Following the hearing, the Judge will prepare Findings of Fact, Conclusions of Law, and a specific recoxnmendation for action to be taken by the City Council. You should bring 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 conformity with Minnesota Rules, part 1400.7000. If a stipulation 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. I3otice of Aearing - Page 2 '. If the licensee or y�as his representative fails to appear at the hearing, the licensee's ability to challenge the allegations will be forfeited and the allegations against the licensee which have been stated eazlier 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, ��:� C��._.�.� Virginia D. Palmer Assistant City Attomey cc: Diane Nardstrom, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Seeretary, 310 City Hali Christine Rozek, LIEP Nieeta Presley, Community Organizer, Aurora-St. Anthony Neighborhood Development Corp., 770 University Ave., St. Paul, MN 55104 Notice of Hearing - Page 3 1 • � STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY ) AFFIDAVIT OF SERVICE BY MAII. JOANNE G. CLEMENTS, beang fust duly sworn, deposes and says that on August 20, 2002, she served the attached NOTICE OF HEARING placing a true and correct copy thereof in an envelope addressed as follows: Vincent F. Waters Attorney at Law 400 Executive Office Center 2785 White Bear Avenue Maplewood, MN. 55109 (which is the last known address of said person) depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. /'� ,,, � Subscribed and sworn to before me this 20th day of August, 2002. Notary Public PETER P PRhlG�Ol2N N07A(2Y PUBIIG � !Al!VtJE50TA MY COPAMISSION EXP3RES JAN. 31, 2005 � � �.'�� 215T BIHIH DATE: 11PR-11-20a8 18fH BIRiH UATE: APH-11-20Ri 50 ST PAUL, MN 55075 ' m��t� �-A � �x�D�,� V � -� OFFICE OF T4IE CITY ATTORI3EY Manuel✓. Cervantu, CiryAt[orney � �C,=`s L� CITY OF SAINT PALTL�2 �E�3 �� : z2 CivilDivision Randy G KeQy, Mayor C r � p �! 400 Ciry Hall Tetephone: 657 2b68710 •':✓�,�ij ISWestKelloggBlvd. Facsimile:651298-5619- . �Lnt't�19Js SaintPaul,Minnerot¢SSIO2 August 14, 2002 NOTICE OF I3EARING Vincent F. Waters Attorney at Law 400 Executive Office Center 2785 White Bear Avenue Maplewood, Minnesota 55109 RE: 1) CigazettelTobacco License held by Mahubeh Mustafa, dfbla Dale Selby Superette for the premises at 618 Selby Avenue in Saint Paul License ID #: 19990006162 2) Sale of Cigarettes to Underage Person by Clerk Kanan Mustafa Dear Mr. Waters : Piease take notice that a hearing will be held at the following time, date and place conceming the Cigazette/Tobacco license for the premises identified above, and with regazds to the store clerk, Mr. Kanan Mustafa: Date: Wednesday, September 18, 2UO2 Time: . 9:30 a.m. Place: Iioom 40-B St. Panl City Hall 15 W. Kellogg Blvd. St Paul, NIN. 55102 The hearing will be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: Name: Steve M. Mihalchick Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN. 55401 Telephone: 612-349-2544 AA-ADA-EEO Employer The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse action against such licenses, under Chapter 310, including sections 310.05 and 310.06, of the Saint Paul I,egislative Code. In the case of licenses for intoxiFating and non-intoxicating liquor, authority is also conveyed b� Minnesota Statutes section 34021415. Adverse action may include revocation, suspension, fines and other penalties or conditions. �°'� Evidence will be presented to the judge which may lead to adverse action against the Cigarette/Tobacco license held at the above premises and against the person of Mr. 1Vlustafa as follows: On June 14, 2002, a tobacco compliance check was conducted at the premises of the Dale Selhy Superette located at 618 Selby Avenue in Saint Paul. A 17 year old ma(e entered the store and asked to buy cigarettes. Mr. Kanan Mustafa was later identified as the clerk behind the counter. The compliance checker was asked to show his identi�cation, and did so. It correctly stated nis date of birth. Mr. Mustafa neverfheless soTd him a package of Marlboro Lights cigarettes. Sale oftobacco to an underageperson is a violation ofMinn. Stat. §609.685 and Saint Paui Legislative Code §324.07. F�rther, Minn. Stat. §46112 states that "an individual who sells tobacco to a person under the age of 18 years must be charged an administrative penalty of $50.00." The hearing will be conducted in accordance with the requirements of Minnesota Stahztes secrions 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 Judge will have all parties identify themselves for the record. Tlae City will then present its witnesses and evidence, each of whom you may cross- examine. You may then offer in rebuttal any witnesses or evidence you may wish to present, each of whom the City's attorney may cross-examine. The Administrative Law Judge may in addition hear relevant and material tesfimony from persons not presented as witnesses by either party who have a substantiai interest in the outcome of Yhe proceeding; for example, the owners or occupants of properiy located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding arguments may be made by the parties. Following the hearing, the 3udge will prepare Findings of Fact, Conclusions of Law, and a specific recommendation for action to be taken by the City Council. You should bring to the hearing all documents, records and wimesses yau will or may need to support your position. Subpoenas may be available to compei the attendance of witnesses or the production of documents in conformity with Minnesota Rules, part 1400J000. If a stipulation ar agreement can be reached as to the €acts, that stipulation will be presented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. Notice of Hearing - Page 2 If the licensee or you as his representative fails to appear at the hearing, the licensee's ability to challenge the allegations will be forfeited and the allegations against the licensee which have been stated earlier in tlus notice may be taken as hue. If non-public data is received into evidence at the hearing, it may hecome public unless objecrion 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, �/��:�.� C��.�. Virginia D. Palmer Assistant City Attorney cc: � Dia'�I�o�dsYcq�; aOffice ofAdministrative Hearings, 100 Washington Square, Suite 1700, I'vipTs; �33 55401 Nancy Anderson, Assistant Council Secretary, 310 City Aall Christine Rozek, LIEP Nieeta Presley, Community Organizer, Aurora-St. Anthony Neighborhood Development Corp., 770 University Ave., St. Paul, MN 55104 Notice of Hearing - Page 3 �• - • . OFFICE OF THE CITY ATTORNEY Manuel J. Cervantes, Ciry Attorney �'��..=i `C✓ CITY OF SAINT PAiTL�' 8�� = 2 s �'r9 �,: 22 CivilDivision Randy C. Ke[ly, Mayor _ 400 City Hall Te[ephone: 651266-8710 �...i�1i1�`�S(;��j��h ISWestKelloggBlvd. Facsimile:657298-5619 Ti ��'�"��:!:� SaintPaul,Minnuola55102 �.:1�.n�..J August 14, 2002 NOTICE OF HEARING Vincent F. Waters Attorney at Law 400 Executive Office Center 2785 White Bear Avenue Maplewood, Minnesota 55109 RE: 1) Cigarette/Tobacco License held by Mahubeh Mustafa, d/b!a Dale Selby Superette for the premises at 618 Selby Avenue in Saint Paul License ID #: 19990006162 2) Sale of Cigazettes to Underage Person by Clerk Kanan Mustafa Deaz Mr. Waters : Please take notice that a hearing will be held at the foilowing time, date and place conceming the Cigarette/Tobacco license for the premises identified above, and with regards to the store clerk, Mr. Kanan Mustafa: Date: Wednesday, September 18, 2002 Time: 9:30 a.m. Place: Room 40-B St Paul City Hall 15 W. Keliogg 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: Steve M. Mihalchick Of�ce of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN. 55401 Telephone: 612-349-2544 AA-ADA-EEO Employer The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse action against such licenses, under Chapter 310, including sections 310.05 and 310.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non-intoxicating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action against the Cigarette/Tobacco license held at the above premises and against the person of Mr. Mustafa as follows: On June 14, 2002, a tobacco compliance check was conducted at the premises of the Dale Selby Superette located at 618 Selby Avenue in Saint Paul. A 17 year old male entered the store and asked to buy cigarettes. Mr. Kanan Mustafa was later identified as the clerk behind the counter. The compliance checker was asked to show his identification, and did so. It correctly stated ais date oi birti�. Mr. Iviustafa nevertheless sold him a package of Marlboro Lights cigarettes. Sale of tobacco to an underage person is a violation of Minn. Stat. §609.685 and Saint Paul Legislative Code §324.07. Further, Minn. Stat. §461.12 states that "an individual who sells tobacco to a person under the age of 18 years must be charged an administrative penalty of $50.00." 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 Judge will have all parties identify themselves for the record. The City will then present its witnesses and evidence, each of whom you may cross- examine. You may then offer in rebuttal any witnesses or evidence you may wish to present, each of whom the City's attorney may cross-examine. The Admimstrative Law Judge may in addition hear relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in ihe outcome of Yhe proceeding; for example, the owners or occu�anis of property located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding arguments 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. You should bring 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 conformity with Minnesota Rules, part 1400.7000. If a stipulation 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 actzon. Notice of Hearing - Page 2 Ifthe licensee or you as his representative fails to appear at the hearing, the licensee's ability to challenge the allegations will be forfeited and the allegations against the licensee which have been stated eazlier 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 Minuesota Statutes, Section 14.60, subdivision 2. Ifyou have any quesrions, you can call me at 266-8710. Very huly yours, �� C�� Virginia D. Palmer Assistant City Attorney cc: Diane Nordstrom, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Christine Rozek, LIEP Nieeta Presley, Community Organizer, Aurora-St. Anthony Neighborhood Development Corp., 770 University Ave., St. Paul, MN 55104 Notice of Hearing - Page 3