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02-121S �.�s�',�'�..�c_. - � �.b _ \'3 � ao o � Council File # 6?. - 1 a.\ Green Sheet # 1�'� 3 3'� RESOLUTION CITY OF SAINT P. Presented By Referred To I_� Date 1 WHEREAS, adverse action was initiated against the licenses held by Blue's Saloon, Inc., 2 d/b/a Lucy's for the premises located at 601 Western Avenue North in Saint Paul (License ID# 3 49441) by the Office of LIEP for the violation of failure to take reasonable and adequate steps 4 to prevent a customer from leaving the premises with alcohol on Apri14, 2001; and WHEREAS, Licensee requested a hearing before an Administrative Law Judge, and a hearing was held on November 29, 2001 before Administrative Law Judge Bruce Johnson, who issued Findings of Fact, Conclusions and Recommendations dated December 19, 2001, in which he determined that the Office of LIEP had sustained its burden of showing a violation; and 10 11 WHEREAS, the Report of the ALJ recommended that the City Council impose a fine of 12 $1,000.00, which is the presumptive penalty recommended by Saint Paul Legislative Code 13 §409.26; now, therefore be it 14 15 RESOLVED, that a fine of $1,000.00 is imposed against the licenses held by Blue's 16 Saloon, Inc., d/b/a Lucy's for the premises located at 601 Western Avenue North in Saint Paul 17 (License ID # 49441) for the violation of failure to take reasonable and adequate steps to 18 19 20 21 22 23 24 25 26 27 28 prevent a customer from leaving the premises with alcohol on Apri14, 2001. FURTHER RESOLVED, that the findings of fact and conclusions of law contained in the ALJ Report in this case dated December 19, 2001 are adopted as the written findings and conclusion of the Council in this matter, except as modified below. FURTHER RESOLVED, that the following amendment to the AL7 Report is hereby adopted: 1. Finding of Fact # 9 is hereby amended to read as follows: 29 "#9 . The evidence is inconclusive as to whether the proliferation of empty and 30 broken alcoholic bevera¢e containers on properties in the vicinity of Lucy's, 31 particularly the premises of Jackson Masnet School across the street, has been 32 caused by�atrons of Lucv's leavin� its premises with such containers. " 33 34 35 36 37 38 This Resolution is based on the record of the proceedings before the ALJ, including the hearing on November 29, 2001, the documents and exhibits introduced therein, the findings of fact and conclusions of law of the ALJ as referenced above and the arguments and statements of the parties at the public hearing on January 23, 2002 and the deliberations of the Council in open session at that hearing. A copy of this Resolution, as adopted, shall be sent by first class mail to the 6a _\ 2. \ Administrative Law Judge and to the Licensee. Requested by Department of: Adopted by Council: Date � �� p a By: Form Approved y City Attorney By: � Approved by ayor for Submission to Council By: Adoption Certified by Council Secretary „. OFFICE OF LIEP Date: i-xoger Gurtis, Director February 4 aooa GREEN .-SHEET ,. 266-9013 NO .10 3 3 3 7 'O'a. 1 SPARTMENT DIRECTOR 3 ITY COIINCIL 2 ITY ATTORNEY ITY CLERK w�mcw� ust be on Council Agenda by: '°"'° �Ea' Dlx�crox IN. E MGT. SVC. DIR. � s soon as possible xox (OR ASSISTANT) TAL # OF SIGNATURE PAGES 1 (CLIP ALL LOCATIONS FOR SIGNATURE) ” CTION REQUESTED: That a fine of $1,000 is imposed against the licenses held by lues Saloon, Inc., d/b/a Lucy's for the premises located at 601 Western Avenue orth in Saint Paul (License ID# 49441) for the violation of failure to take ,-_reasonable and adequate steps to prevent a customer from leaving the premises . ith alcohol on April 4, 2001. That the findings of fact and conclusions of law - contained in the ALJ Report in this case dated December 19, 2001 are adopted as ".the written findings and conclusion of the Council in this matter. , ECOPA]ENDATIONS: AYPROVE (A) OR REJECT (R) EASONAL SERVICE CONTRACTS MUST ANSWER THE FOLIA➢lING: PLANNING COMMISSION CIVIL SERVICE WPSSISSION 1. Has the pexson/fism eveT woiked undei a contzac[ foz this depax[ment? CIB COMf3ITTEE HUSINESS REVIEW COUNCIL YES NO ' � STAFF Has this person/firm ever been a City employee? OISTRICT COURT YES NO - - 3. Does tfiis person/£irm possess a skill not normally possessed by any UPPORTS WHICH COUNCIL OBJECTIVE? Current City.employee? . YES NO laia all YES aaswers oa a seyarate aheet � attach. :' INITIATING PROBLEM, ISSUE, OPPORTUNITY (Who, What, When, Where, Why): Adverse - action was initiated against the licenses held by Blue's Saloon, Inc. d/b/a -'�Lucy's for the premises located at 601 Western Avenue North in Saint Paul '�,(license ID# 49441) by the Office of LIEP for the violation of failure to take ;'reasonable and adequate steps to prevent a customer from leaving the premises ith alcohol on April 4, 2001; and licensee requested a hearing before an dministrative Law Judge, and a hearing was held on November 29, 2001 before dministrative Law Judge-Bruce Johnson, who issued Findings of Fact, � onclusions and Recommendations dated December 19, 2001, in which he determined '" that the Office of LIEP had sustained its burden of showing a violation. The '`-'report of the ALJ recommended that the City Council impose a fine of $1,000, ,: hich is the presumptive`penalty recommended by Saint Paul Legislative Code :'�' 4 09 . 2 6 . DVANTAGES IF APPROVED: Compliance with Saint.Paul City policy. c ISADVANTAGES IF APPROVED: :'. ISADVANTAGES IF NOT APPROVED:' On-sale liquor establishments will no longer take de ate steps to prevent customers from leaving the premises with alcohol. , OTAL AMOUNT OF TRANSACTION $ CQ6T/REVENUE BUDGETED YES NO �UNDING SOURCE ACTIVITY INANCIAL INFORMATION: (�XPLAIN) . r , , t +• T � �`� � 2002 ^,• `� ��+ ��,� € �,�;'�\4��EVsv`,�. Presented By Referred To Council FIle # � 1 � � �` GreenSheet# 10�3 RESOLUTION CITY OF SAINT PAUL, MINNESOTA (� .' Committee: Date , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 WHEREAS, adverse action was initiated against the licenses held by ue's Saloon, Inc., d/b/a Lucy's for the premises located at 601 Western Avenue North in Sai Paul (License ID# 49441) by the Office of LIEP for the violation of failure to take reaso le and adequate steps to prevent a customer from leauing the premises with alcohol on Ap � 4, 2001; and WHEREAS, Licensee requested a hearing before an Ad inistrative Law Judge, and a hearing was held on November 29, 2001 before Administrati e Law Judge Bruce Johnson, who issued Findings of Fact, Conclusions and Recommendatio dated December 19, 2001, in which he determined that the Office of LIEP had sustained its den of showing a violation; and WF3EREAS, the Report of the ALJ . $1,000.00, which is the presumptive penalty §409.26; now, therefore be it that the City Council impose a fine of by Saint Paul Legislative Code RESOLVED, that a fine of $1,000. is imposed against the licenses held by Blue's Saloon, Inc., d/b/a Lucy's for the premise located at 601 Western Avenue North in Saint Paul (License ID# 49441) for the violation f failure to take reasonable and adequate steps to prevent a customer from leauing the emises with alcohol on Apri14, 2001. FURTHER RESOLV] ALJ Report in this case dated conclusion of the Council in t �Iiat the findings of fact and conclusions of law contained in the cember 19, 2001 are adopted as the written findings and matter. 1 2 3 4 5 6 7 8 9 10 This Resolution is based on the record of the proceedings before the ALJ, including the 0 a.- \3.� hearing on November 29, 2001, the documents and eachibits introduced therein, the fmdings of fact and conclusions of law of the ALJ as referenced above and the azguments and statements of the parties at the public hearing on January 23, 2002 and the deliberations of the Council in open session at that hearing. � A copy of this Resolution, as adopted, shall be sent by first class mail to Admiiustrative Law Judge and to the Licensee. � °�';�?�°��,€,A� � � E,,x � � ; `�„r � t �; 5 €m., Requested by Department of: Adopted by Council: Adoption Certified Council Secretary BY: �/'—d.i,o�l,t�tic.� � /�-✓2�.—� Form Approved by City Att rney Hy: � , cGG.�' � Approved by Mayor for Submission to Council By: g Approved by Mayor: Date By: OFFICE OF THE CITY ATTORNEY Claylon M. Robinson, Jr., Ciry Altorney aa-� CITY OF SAINT PAUL avrrD�v,sra„ Norm Coleman, Mayor 400 City Hnl[ � IS WesrKelloggB7vd. Saint Paul, Minnuo[a 55102 � December 21, 2001 NOTICE OF COUNCIL HEARING Roger A. Christianson Attomey at Law 386 North Wabasha Street Saint Paul, Minnesota 55102 Te[ephone: 651266-B710 Facsimile: 65/ 298-56I9 RE: All Licenses held by Blue's Saloon, Inc., d/b/a Lucy's for the premises located at 601 Westem Avenue North in Saint Paul License ID #: 49441 ��. :��y�. , �"�'_ � Dear Mr. Christianson: -;, ��.�� ° ,�:>�; s: �� 4 _ �. Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-mentioned violation has been scheduled for 5:30 p.m., Wednesday, January 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 with the City Clerk at any time during normal business hours. You may also present oral or written argument 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 Judge 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, ; k ;�� u��t�[J ce..�.�1 Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Christine Rozek, LIEP Kristen Kidder, Team Leader, Thomas-Dale/Dist.7 Planning Council, 689 N. Dale St., St. Paul, MN 55 1 03-1 644 Johnny Howard, Exec. Director, Thomas Dale Block Clubs, 1034 Lafond Ave, St. Paul, MN 55104 az-�z t STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 December 19, 2001 Fred Owusu, City Clerk 170 City Hall 15 West Kellogg Blvd. St. Paul MN 55102 RE: In the Matter of all Licenses held by Blue's Saloon, Inc., d/b1a Lucy's for The premises located at 601 Western Avenue North in St. Paul; License ID #49441 OAH Docket No. 4-6020-14456-3 Dear Mr. Owusu: Enclosed herewith and served upon you by mail is the Administrative Law Judge's Findings of Fact, Conclusions and Recommendations in the above-entitled matter. Also enclosed is the official record, with the exception of the tape recording of the hearing. Copies of the tapes will be sent to you under separate cover. Our file in this matter is now being closed. Sincerely, �r�--� i � I'�S�rL BRUCE H. JOHNSON � Assistant Chief Administrative Law Judge Telephone: 612/341-7607 BHJ:cr Encl. cc: Virginia D. Paimer Roger A. Christianson RECEIVEp DEC 2 � 20d1 CITY ATTORNEY Providing Impartial Hearings for Government and Citizens An Equal Opportunity Employer Administrative Law Section & Administrative Services (612) 341-7600 �TTY No. (612) 341-7346 � Fax No. (612) 349-2665 oz-�a.i OAH Docket No. 4-6020-14456-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE ST. PAUL CITY COUNCIL In the Matter of all Licenses held by Blue's Sal��n, Inc., d/b/a Lucy's fo� The premises located at 601 Western Avenue North in St. Paul License ID # 49441 FINDINGS OF FACT, CONC�l3SiarvS AND RECOMMENDATIONS Administrative Law Judge Bruce H. Johnson conducted a hearing in this matter beginning at 9:30.m. on Thursday, November 29, 2001, in Room 41-A, St. Paul City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota. Virginia D. Paimer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 551 o2, represented the City of St. Paul (the City) at the hearing. The Licensee, Blue's Saloon, Inc., d/b/a Lucy's (Lucy's), was represented by Roger A. Christianson, Attorney at Law, 101 East Fifth Street, Suite 2314, St. Paul, MN 55101. The record closed on December 17, 2001, when all of the parties post-hearing submissions were due. This Report is a recommendation, not a final decision. The City Council of the City of St. Paul will make the final decision after reviewing the hearing record. The Council may adopt, reject or modify these Findir�gs of Fact, Conclusions, and Recommendations. Under the City's Legislative Code,' the Council will not make its final decision until after it has provided the licensee an opportuniry to present orai 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 to present argument related to the recommended adverse action. Parties should contact the City Clerk's Office, City of St. Paul, 170 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102, to find out how to file objections or present argument. ' St. Paul Legislative Code, section 310.05 (c) (2001). (Uniess othenvise specified, all references to that code are to the 2001 edition.) oa-13.1 STATEMEN7 OF THE ISSUES � (1) Whether or not defects in the city's notices of violation and of hearing violated the St. Paul Legislative Code or principles of due process. (2) Whether or not on the evening of April 4, 2001, at approximately 8:30 p.m., a cusfomer at Lucy's (eff its premises with a botfle of an alcoholic beverage; (3) Whether or not on the evening of April 4, 2001, at approximately 8:30 p.m., Lucy's took reasonable and adequate steps to prevent persons from leaving its premises with containers of alcoholic beverages as required by the St. Paul Legislative Code; and (4) If so, what, if any, adverse action the St. Paul City Council should take against any licenses or permits issued by the City to Lucy's. Based upon the record in this matter, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. Blue's Saloon, Inc., doing business as Lucy's, (Lucy's) is a Minnesota corporation that has owned and operated a bar at 601 Western Avenue North in St. Paul, Minnesota, for the last sixteen years 3 Lucy's holds an on-sale liquor license from the City of St. Paul that will expire on April 30, 2002. Lucy's is located in what is known as the Frogtown area of St. Paul. The surrounding neighborhood is predominantly older residential in character, with a school and church nearby. 2. Situated on the northwest corner of the intersection of Western and Thomas Avenues, Lucy's has five outside entrances and exits. When no# offering live entertainment, only the easternmost entrance on Thomas Avenue is normally open to customers entering from the outside. 3. In the spring of 2001, some of the residents living near Lucy's complained to the City of St. Paul's Office of License Inspections and Environmental Protection (LIEP) that the yards and open areas in the vicinity of 2 St. Paui Legisiative Code, section 409.08(15). 3 Testimony of Areanna Coale. ° Testimony of Kristina Schweinler 5 See Exhibit A. 6 See the entrance marked with a black "x" on Exhibit A. -2- oa-►a� Lucy's were littered with empty and broken alcoholic beverage containers.' Some residents believed that customers of Lucy's were taking containers of alcohol off the premises and depositing them around the neighborhood. LIEP had received similar complaints about ten other bars throughout the city, including other bars in the Frogtown area. 4. Officials at Jackson Magnet School, which is located across the street from Lucy's, specifically complained to the City about continually finding empty alcoholic beverage bottles and broken glass on the playground and other open areas around the school. But the school staff has no actual knowledge of where that litter was has been coming from. 5. During the spring of 2Q01, the 1Plestern District Patro! Office of ths St. Paul Police Department was conducting a number of undercover operations aimed at various kinds of illegal activity in the City's Frogtown area, including the neighborhood where Lucy's is located. The undercover operations were primarily aimed at illegal drug activity and prostitution but also included possible violations of the City's licensing ordinances." 6. Kristina Schweinler is a senior license inspector employed by LEIP. In the course of her duties, she is frequently asked to witness undercover compliance checks conducted by the police. On the afternoon of April 4, 2001, the Western District Patrol Office contacted Ms. Schweinler and invited her to accompany a team of police officers that would be conducting undercover compliance checks at bars in the Frogtown area that evening. Later that evening, she met four police officers at the patrol office, including Officer James LaBarre, who had been assigned by his supervisor to conduct an undercover compliance check at Lucy's. Officer LaBarre was equipped with an electronic monitoring device that allowed the others participating in the operation to hear what was being said in his presence inside the bar. 7. Ms. Schweinler and three undercover police officers arrived in the vicinity of Lucy's in an urmarked police car ai about 7:30 p.rn. on the evening of ' Id. e Testimony of Tait Danielson. 9 Testimony of Kristina Schweinler. 10 Testimony of Patrick Bryan and Michele Towle. " Testimony of Officer James LaBarre. ' Testimony of Kristina Schweinier. ,a /d. '° /d.; testimony of Officer James LaBarre. Although it was possible to make a wire recording of ali sounds picked up by the device, the evidence estabiished that the undercover unit did not make a wire recording of Officer LaBarre's visit to Lucy's. Rather, the monitoring device was oniy being used to assure Offcer LaBarre's safety during that particular compiiance check. -3- oa-� ai April 4, 2001. They parked their car on the north side of Thomas Avenue across Westem Avenue from Lucy's — about 50 to 80 feet from the bar — and waited far Officer LaBarre to arrive. 8. Officer LaBarre drove himself to Lucy's in another unmarked police car, arriving about fifteen minutes later at about 7:45 p.m. Since Lucy's was not otfering live entertainment between 7:30 p.m. and 8:30 p.m. on the evening of April 4, 2001, only the easternmost entrance on Thomas Avenue was open to customers entering from the outside.' Officer LaBarre entered Lucy's through that entrance. 9. After entering, Officer LaBarre went over to the bar, sat down on a barstool, and ordered a bottle of beer." At ths time, the only employee on the premises was a single bartender who was serving customers at the bar. There were about ten to fifteen customers in the bar area. Officer LaBarre spent the next ten to fifteen minutes drinking the beer he had ordered and conducting surveillance of the customers. He saw no evidence of illegal activity. 10. After finishing his first bottie of beer, Office LaBarre ordered a second. After taking a few sips out of the second bottle, he stood up from the barstool, turned his back to the bartender, and began walking toward the door. As he walked, Officer LaBarre held the bottle of beer level about six inches out from his front torso. 20 It would have been difficult for the bartender standing behind the bar to have seen the bottle of beer in Officer LaBarre's hand as he walked. 11. The distance to the door from the barstool where Officer LaBarre had been sitting was about twenty to twenty-five feet. He covered that distance at a normal pace in about ten seconds, pausing once to look back and see whether or not anyone was attempting to stop him. No one did.� 12. Officer LaBarre then continued to the Thomas Avenue exit, and left the bar carrying the second, nearly full bottle of beer. �fter ieaving the building, he stopped on the sidewalk next to the main entrance and raised the bottie of 15 Testimony of Kristina Schweinler. 76 Testimony of Areanna Coale. See also the entrance marked with a black "X" on Exhibit A. " See the location marked with a circle and an "L" on Exhibit A. ' Testimony of Officer James LaBarre. ' Id. 2° Testimony of Officer James LaBarre. z� !d. 22 !d. 23 Testimony of Officer James LaBarre. See Exhibit A. � oa -� ► a i beer over his head. He did that to show Ms. Scweinler and the other undercover officers that he had been able to leave Lucy's wifh a neariy full bottle of-beer. Officer LaBarre then got into his car, and both unmarked police cars drove away to conduct compliance checks at other establishments 26 13. After his shift was over that night, Officer LaBarre prepared a general police report that referred only to ongoing undercover investigations that he conducted during the eveing af April 4, 2001. He later prepared and filed a detailed supplemental report of his undercover activities at Lucy's The St. Paul Police Department has been unable to locate that supplemental report. 14. On the evening of April 4, 2001, Ms. Schweinler also prepared a written report of the compliance check that was cenu�ucted at Lucy's. Shortly thereafter, she submitted copies of that report to her supervisor and to the City Attorney's office for further action. 15. Sometime between April and August, 2001, Ms. Schweinler met with Lucy's owner, Areanna Coale, to discuss various complaints of neighbors and conditions that neighbors wanted to have imposed on Lucy's city licenses. Those complaints included a belief by many neighbors that the customers of Lucy's were responsible for the empty and broken alcoholic beverage containers that continued to Iitter the neighborhood. At that time, Ms. Schweinler made no mention of the results of the compliance check that had occurred on April 4th. 16. Although she expressed her belief that bar patrons were not responsible for the litter in the neighborhood, Ms. Coale had addressed the litter problem. The steps she has taken include having her employees remove any litter in the vicinity of the bar at c�osing, regardless of the apparent source of the litter. Lucy's has continued doing that from August until the time of the hearing 32 Notwithstanding those efforts, empty and broken aicoholic beverage containers continue to litter the neighborhood around the bar by morning. 24 Id.; testimony of Kristina Schweinler. 25 Testimony of Officer James LaBarre. z6 Testimony of Kristina Schweinler and Offcer James LaBarre. Z ' Testimony of Officer James LaBarre. 2 e Exhibit 4. 29 Testimony of Kristina Schweinier. 3o Id.; Testimony of Areanna Coale. ai Id. 32 Testimony of Areanna Coale and David Shafer 3a Id.; testimony of Patrick Bryan, Michele Towle, and David Shafer -5- oa -i a � 17. The City Attorney's Office did not take action on the results of the compliance check at Lucy's until August 13, 2001, when it issued a formal Notice of-Violation. The City also did not take any other steps to provide Lucy's with information about an alleged April violation during the intervening four and one- half months. The Notice of Violation misidentified the door through which Officer LaBarre left Lucy's as being a door on Western Avenue, rather than the door on Thomas Avenue. 18. On August 13, 2001, Lucy's responded to the Notice of Violation by contending, among other things, that O�cer LaBarre had purposely attempted to conceal his departure from the bar by using the Western Avenue door. Lucy's also requested a hearing, as allowed by the St. Paul Legislative Code,� and this proceeding ensued when the City issued a Notice of Hearing on August 15, 2001. 19. All Lucy's bartenders are instructed, when hired, not to let customers take any alcoholic beverage containers out of the bar. Specifically, they are told to watch customers constantly and to stop them if they attempt to leave even with a glass of water. 20. Before, during, and after the April 4, 2001, compliance check, Lucy's posted large posters listing "Rules of the Ba�' on a wall facing the bar and also on a wall immediately adjacent to the rest rooms. Rule Number 10 provides: "Do not bring in any beverages or leave premises with any beverage container."' 21. At times when Lucy's provides live entertainment, it always has several security guards on the premises and frequently has more than one bartender on duty. At closing, large garbage cans are positioned at the exits, and a security guard is there to assure that customers dispose of their beverage containers there before leaving the building 4 When no security guards are on duty, the bartender is responsible for assuring that customers dispose of their beverage containers before leaving a3 �" Id.; testimony of Officer James LaBarre; Exhibit 4. � Exhibit 5. 3s St. Paui Legislative Code, section 310.05. " Exhibit 6 3e Testimony of Karen Prange and LaTonya Noble,. 39 Testimony of Karen Prange. 40 Exhibits A(locations identified with a red "X", B, C1, and C2. 41 Testimony of Areanna Coale. ^Z Id.; testimony of David Shafer and LaTonya Noble. ^' Testimony of LaTonya Noble. � oa-� �1 22. On the evening of April 4, 2001, Lucy's did not begin providing any live entertainment until 9:30 p.m. There was therefore only one bartender and no security guards on duty between 7:30 p.m. and 8:30 p.m."� 23. On the evening of April 4, 2001, the shift change for Lucy's bartenders occurred between 8:00 p. m. and 8:30 p.m., and that shift change began about the time when Officerr LaBarre left the premises 45 24. These Findings are based on all of the evidence in the record. Citations to portions of the record are not intended to be exclusive references. 25. The Administrative Law Judge adopts as Findings any Conclusions that are more appropriately described as Findings. 26. To the extent that the Memorandum that follows contains findings of fact, the Administrative Law Judge hereby adopts them as such. Based upon these Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. Minnesota law and the St. Paul Legislative Code give the Administrative Law Judge and the St. Paul City Council authority to conduct this proceeding, to consider whether Lucy's has violated provisions of the St. Paul Legislative Code, and to make findings, conclusions, and recommendations or orders on that subject, as the case may be. 2. The City gave Lucy's proper and timely notice of the hearing in this matter, and the City has complied with all of the law's substantive and procedural requirements for initiating and proceeding with this matter. Specifically, the City's misidentification in its Notice of Hearing of the door through which an undercover police officer left Lucy's premises on the evening of April 4, 2001, neither violated the notice provisions of the St. Pau( Legisiative Code nor deprived Lucy's of due process of law. 3. The City did not deprive Lucy's with due process of law by waiting until August 13, 2001, to serve a Notice of Violation of a violation that ailegedly occurred on the on the evening of April 4, 2001. °d Testimony of Areanna Coale. as Id. ^� Minnesota Statutes, section 14.50, and section 340A.503. -7- oa-iat 4. The St. Paul Legislative Code contains the following regulation pertaining to holders of on-sale licenses for the sale of intoxicating liquors: Each on-sale licensee shall have the responsibility of taking reasonable and adequate steps to prevent persons from leaving the licensed premises with a bottie, can or glass containing any alcoholic beverage, and the faifure to do so may subject such licensee to adverse action against his or her license. 5. The City has the burden of proving that Lucy's violated provisions of the St. Paul Legislative Code pertaining to the sale of intoxicating liquors, and it has met that burden in this contested case proceeding. 6. On the evening of April 4, 2001, between 8:30 p.m. and 9:00 p.m., an undercover police officer left Lucy's licensed premises while carrying a bottle of an alcoholic beverage. 7. On the evening ofApril 4, 2001, between 8:30 p.m. and 9:00 p.m., Lucy's failed to take reasonable and adequate steps to prevent a person from leaving its licensed premises with a bottle of an aicoholic beverage in violation of the St. Paul Legislative Code. 8. Upon a finding that the holder of a liquor license has violated the St. Paul Legislative Code, the City Council is empowered to take adverse action against that license. That adverse action may include: the revocation or suspension of a license, the imposition of conditions upon a license, the denial of an application for the grant, issuance or renewal of a license, the imposition of a fine, the assessment of the costs of a contested hearing, and any other disciplinary or unfavorable action taken with respect to a license, licensee or applicant for a license so 9. The proliferation of empty and broken alcoholic beverage containers on properties in the vicinity of Lucy's, particularly the premises of Jackson Magnet School across the street, has not been caused by patrons of Lucy's leaving its premises with such containers. 10. During the last sixteen years, Lucy's has not been cited for any other violations of provisions of the St. Paul Legislative Code pertaining to the " St. Paui Legisiative Code, section 409.08 (15). ae Id. 49 St. Paul Legislative Code, section 310.06(a). so St. Paul Legislative Code, section 310.01. � va -� a � sale of alcoholic beverages. During that period, its only violation of the Code was one instance of selling cigarettes to a minor. 11. Section 409.26(a) of St. Paul Legislative Code provides that: The purpose of this section is to establish a standard by which the city council determines the length of license suspensions and the propriety of revocations, and shall apply to ali on-sale and off-sale licensed premises for both intoxicating liquor under this chapter and nonintoxicating liquor under Chapter 410. These penalties are presumed to be appropriate for every case; however the council may deviate therefrom in an individual case where the council finds and determines that there exist substantial a�d compelling reasons making it more appropriate to do so. When deviating from these standards, the council shall provide written reasons that specify why the penalty selected was more appropriate. 12. Under the St. Paul Legislative Code, the presumptive penalty for a first violation of failing to take reasonable steps to stop person from leaving premises with alcoholic beverage for an establishment of Lucy's size is a fine of $1,000.00. 13. The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions. 14. The Memorandum that follows explains the reasons for these Conclusions, and to that extent, the Administrative Law Judge incorporates that Memorandum into these Conclusions. Based upon these Conclusions, the Administrative Law Judge makes the following: RECOMMEIJDATION The Administrative Law Judge respectFully recommends that the St. Paul City Council impose a fine of $1,000.00 upon Blue's Saloon, inc., d/b/a Lucy's. 51 St. Paul Legislative Code, section 40926(b)(9). � a�-i�i Dated this 19�' day of December 2001. Administrative Law MEMORANDUM I. The City's Notice of the Violation Was Both Legally and Constitutionally Sufficient In both its Notice of Violation and its Notice of Hearing, the City aileged, among other things, that an undercover police officer "left the premises from the door of the bar facing Western Avenue." But the evidence established that the o�cer actually left the premises through a door on Thomas Avenue, and the City concedes that references in both notices to the door through which the officer left the premises were erroneous. Lucy's contends that the error made both notices legally and constitutionally insu�cient and, therefore, vitiated this entire proceeding. The ALJ disagrees. Regarding legal sufficiency, the St. Paul Legisiative Code only requires that the licensee be notified generally of "the issues involved or grounds upon which the adverse action may be sought or based." �' So, the Code itself requires very littfe detail about an aileged violation. It does not require a level of detail that correctly identifies the door through which a customer may have left an establishment. Accordingly, the ALJ concludes that the City's notices did not violate the legal notice requirement. But constitutional principles of procedural due process also give rise to notice requirements. And due process requires "reasonable" notice of charges 52 Exhibits 4 and 6. �' Testimony of James LaBarre. �' St. Paul Legislative Code, section 310.05 (b). -10- oa-i ai that may result in loss of such a license. The focus of the inquiry into adequacy of notice is whether the failure of the agency to disclose facts uaderlying its case prohibits the respondent from being able to effectively respond. Here, it appears that Lucy's was prepared to defend itself by claiming that it was helpless to prevent the undercover from leaving surreptitiously through a door not visible to its bartender. That turned out not to be the case. He actualiy isft through a door that was visible to the bartender. So the mistake caused Lucy's to alter tFie nature of its defense. The bar readily did so, arguing that the incident occurred during a shift change, that the officer obscured fhe bottle from the bartender's view, and that officer's intentions were not readily ascertainabie from is actions. In other words, the mistake in no way prevented or impeded Lucy's ability to raise any legitimate defenses. The ALJ therefore concludes misidentification of the door through s�hich the undercover police officer left the premises was a harmless error that did not deprive Lucy's of due process of law. II. The Four-Month Detay in Issuing a Notice of Violation Did Not Deprive Lucy's of Due Process Lucy's has suggested that the City's four-month delay in issuing a Notice of Violation either violates principles of due process or otherwise limits its ability to proceed with this matter. Lucy's offers no authority for the proposition that by failing to proceed more promptly, the City has somehow waived its right to proceed later. Moreover, in terms of due process, failure to proceed promptly with an administrative matter violates due process only when the delay can be shown to cause a deprivation of protected rights. Here, Lucy's failed to establish that any of its rights were prejudiced by the delay. III. Under the Circumstances, Lucy's Failed to Take Reasonable Steps to Prevent a Violation There was no genuine dispute about the fact that on the evening of April 4, 2001, about 8:30 p.m., an undercover St. Paul police officer walked out of Lucy's with an open bottle of beer in his hand. There is also no genuine dispute about the fact that nobody at Lucy's tried to prevent him from doing so. So, what � Humenansky v. Mrnn. Bd. of Medical Examiners, 525 N.W.2d 559, 565-66 (Minn. App. 1994), citing Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377 (1959). � Zotos InYI v. Kennedy, 460 F.Supp. 268, 274 (D.D.C. 1978). 57 Cf. Mathews v. Eldrige, 424 U.S. 319 (1976). -11- oa-� a � is at issue here is whether or not the measures that Lucy's had in place to prevent that kind of thing from happening met the legal requirement of "reasonable and adequate sfeps to prevent persons from leaving the licensed premises" with a can, bottle, or glass containing an alcoholic beverage." The evidence established that Lucy's specifically trains and instructs its bartenders not to aliow patrons to leave the bar with alcoholic beverages in their possession. It also has been displaying two placards in prominent locations in the bar area that list its "Rules of the House." Rule No. 10 admonishes patrons not to leave the premises with any beverage container. Moreover, from 9:00 p.m. to closing Thursday through Sunday, while Lucy's is offering live entertainment, it stations security personnel at the doors to prevent patrons from taking alcohol outside. Ais�, when live entertairment is in progress, Lucy's frequently has more than one bartender on dufiy. On the other hand, patronage is relatively light when live entertainment is not available, and Lucy's usually has only one bartender on duty during those times. It is also vulnerable to this kind of violation during shift changes when bartenders are likely to be preoccupied with other duties. This incident occurred on a Wednesday night. There was no live entertainment at the time. There were only ten to fifteen patrons in the bar, and only one bartender was still on duty. In other words, this incident happened at a time when Lucy's was most vulnerable to this kind of violation. The evidence failed to establish any prior history of this kind of violation that should have should have warned the management of Lucy's that an incident such as this was likely to occur during periods of light patronage. But what is troublesome is the layout of the bar. The evidence estabiished that the bar faced the only open exit. So, a patron attempting to leave the establishment with an alcoholic beverage would necessarily have his or her back to the bartender during the time it would take to walk from the bar over to and through the exit. During that walk, it would be diffcult for the bartender to see whether or not the patron was holding a beverage container. In fact, this appears to be what happened on the evening of April 4, 2001. !n other words the physical layout within the bar tends to obscure potential violations of this ordinance. The ALJ therefore concludes that Lucy's general instructions to bartenders not to allow patrons to leave the premises with alcohol containers were not an inadequate se St. Paul Legislative Code, Section 409.08(15). 59 Finding of Fact No. 19. so Finding of Fact No. 20. 67 Finding of Fact No. 21. 6Z On Wednesday nights, entertainment does not begin until 9:30 p.m., which is when Lucy's brings in additionai bartenders and security personnel. (Testimony of Areanna Coale) 63 Testimony of James Labarre. -12- oa-i a-I preventive measure. Rather reasonable and adequate steps, at a minimum, would include specific warnings and instructions to bartenders to exercise heightened awareness and vigilance to guard against patrons leaving the bar with alcohol during slow periods when only one bartender and no security personnel are on duty. IV. The Presumptive Penaity is Reasonable Here The evidence established that Lucy's is located in an older, but essentially residential neighborhood. Jackson Magnet School is located across from Lucy's on Thamas Avenue. Patrick Bryan, the principal at Jackson, and Michele Towle, one of his teachers, both testified as interested parties that there has been a continuing problem since at least last August with large numbers of empty (and sometime partially full) and broken alcoholic beverage containers littering the school yard in the mornings. Tait Danielson, another interested party, testified that the problem extended beyond the school to other parts of the immediate neighborhood. But none of them had any personal knowledge of where those containers might be coming from, and there was simply no evidence in the record tending to establish that Lucy's or its patrons were the source 6 In fact, the evidence tended to establish that the beverage containers littering the neighborhood were for beverages not available at Lucy's. Additionally, Lucy's owner, Areanna Coale, testified that since August, she has been having her staff check the grounds around the bar nightly to remove any containers they might find, regard(ess of 4he origin. Notwithstanding those efforts, alcoholic beverage containers continue to turn up in the immediate neighborhood. In summary, while the evidence estabiished that the neighborhood has a probiems with beverage containers, it failed to establish that Lucy's was the source of that problem. Tait Danielson testified as an interested party and expressed his opinion that a number of conditions should be imposed on Lucy's license, including a requirement to have security available on the premises at all times and not only when there was live entertainment. His testimony was predicated on the assumption that Lucy's is the source of the larger neighborhood litter problem. From Ms. Coale's testimony, it was clear that the cost of having security available all the time, including the time of light patronage, would far exceed the �^ Exhibit 10. 65 Aithough Ms. Schweinler testified that the undercover operation at Lucy's was prompted by neighborhood complaints about alcohol leaving its premises on other occasions, no probative evidence was introduced to support those complaints. 6s Finding of Fact No. 16. -13- oa-ial $1,000 fine specified by the Code as the presumptive penalty for a first offense. The Code does allow the City Council to deviate from the presumptive penalties "where the council finds and determines that there exist substantial and compeliing reasons making it more appropriate to do so." While proliferation of empty and broken alcoholic beverage containers throughout the neighborhood may well be a substantial and compelling problem for the residents, the evidence failed to establish that imposing more stringent penaities or license conditions on Lucy's will end that problem. Rather, the evidence here tended to establish fhat this was an isolated violation that occurred because Lucy's failed to instruct its bartenders to exercise sufficient vigilance during periods of light patronage. It is for these reasons that the ALJ recommends that the Council impose the presumptive fine of $1,000.00 for a first violafion. B. H. J. 6 ' St. Paul Legislative Code, section 409.26(b). 68 St. Paui Legislative Code, section 409.26 (a). 69 The City Attorney did not argue for more stringent penaities. -14- # oa-� a.� � P. Areanna Coa1e Attorney at Law Suc Wes[ Fi&h Street, Suite 700 Saint Paul, MN 55102 651-297-6400 Fas:651-224-s3zs January 23, 2002 St. Paul City Council Members 310 City Hall 15 West Kellogg Blvd. St. Paul, Minnesota 55102 Re: Alleged Violation at Lucy�s Bar Hearing: January 23, 2002 at 5:30 p.m. Dear Council Members: On behalf of Lucy's bar, I respectfully request that you take no adverse action regarding Lucy's alleged violation which is currently pending before the St. Paul City Council. The alleged violation came about because an undercover police officer walked out of Lucy's bar while holding a beer bottle in his hand. It is the responsibility of a bar to provide reasonable and adequate means to prevent patrons from leaving the establishment with beverage containers. Prior to this incident, the LIEP office stated that there had been complaints from Lucy's neighbors that the patronage of Lucy's was causing beverage container litter in the neighborhood. In response to this concern, Lucy's posted two colorful 3'X 4' signs in its' business stating that patrons were not to bring any beverage containers into Lucy's or leave the premises with any beverage containers. Lucy's conducted training with every member of its' staff to insure that all bartenders and staff understood that no beverage containers of any kind were to be removed from the premises. This directive was discussed with staff on a weekly basis. Lucy's retained security that started at 9:00 p.m. each night to insure that patrons coming into the bar had proper identification in their possession, were dressed appropriately, possessed an appropriate attitude and, demeanor and were not currently barred from the establishment. The security was trained to examine people as they left the establishment to insure that no one leaving Lucy's had in their possession any beverage container. A large garbage container was placed at the exit to make it ^ oa-iai convenient for patrons with beverage containers to deposit them before exiting Lucy�s. Lucy�s designated one door as a public exit to insure maximum observation by the bartender and security o£ patrons as they entered or left the premises. Any patron who intentionally left the premises with any beverage container in his or her hand was barred from the premises permanently. Lucy's cleaning staff made an examination of the premises at night and in the morning to insure that any beverage bottles or cans in the area of the bar were picked up, even though they did not come from Lucy's or her patrons. The beverage containers collected typically reflected products not sold at Lucy's like Old English, Colt 45 Malt liquor, cans of beer and liquor bottles. Lucy�s set up a monitoring program to ascertain the cause of the beverage container litter in the area and confirmed that it was caused by tenants and visitors of certain residences near Lucy's who participated in after hours parties. one such residence was across the street and two doors away from Lucy's on Western Avenue. The participants would leave the after hours' parties and litter the neighborhood with beverage containers on their way to their destinations. Lucy�s did everything it reasonably could do to insure that reasonable and adequate means were present so that patrons would not leave the premises with their beverage containers. The violation occurred because LIEP requested the St. Paul police officer to see if he could walk out of Lucy's with a beverage container in his hand. In other words, this was not a general investigation to ascertain whether patrons were walking out of Lucy's with their beverage containers or whether Lucy's was complying with using reasonable and adequate means to keep patrons from leaving with their beverage containers. The object, the government's game, was to see how cleverly they could sneak out of Lucy's without being detected. The police officer entered the bar at the request of LIEP and ordered a beer. After consuming the beer, the officer was served a second beer. The first beverage container was removed from the bar by the bartender. The police officer took only two to three sips from his beer and turned left in the direction of the men's bathroom. The officer testified that he did not know which direction the bartender was facing when he, the police officer, made his move. , oa-i a► It is diPficult to believe that the officer, knowing he was going to intentionally exit the door with his beer in hand, would not have taken a moment to see where the bartender was facing at the time. It is also troublesome to Lucy's that the undercover officer totally ignored the two, colorful 3'X 4' signs that were within several feet of the officer in carrying out his mission. The officer testified that he did not know which hand that the beer was in but indicated that it may well have been in his left hand because when he is engaged he leaves his right hand free in case of problems. There is no way that the bartender could have seen the officer holding the beer if the bartender was momentarily facing away from the police officer as the officer turned to his left. Like virtually all bars, there is a front bar and a back bar. The bartender at Lucy's must turn his back at times to retrieve liquor bottles or use the cash register. It is impossible for a bartender to always face each and every customer 100� of the time. The assumption, if any were to be made, was that the police of£icer was merely qoing to the bathroom since he only took two to three sips from his beer and he turned and proceeded to his left in the direction of the men's bathroom. The police officer testified that when he went to the door that his back was to the bar and that he held the beer six inches in front of his chest. It would have been impossible for the bartender to have seen the beverage container under these circumstances. This was not a general investiqation. This was a trap. If this violation is upheld and Lucy's is financially penalized on the specific facts of this case, the trust and confidence that Lucy's and other restaurants and drinking establishments have in the government will be undermined. It is also significant to consider, that this alleged violation occurred on April 4, 2001 and that notice of the alleged violation was not made until four months later. If in fact, this had been a legitimate action, LIEP would have provided instant notification, which is their ordinary practice. Some ten (10) months have now passed since this incident and no other violation has been reported. Anyone can qo into any bar in St. Paul and surreptitiously remove a beverage container. Anyone can wait until the bartender is momentarily distracted or his/her back is turned, take an almost full beverage, act like you are going to the bathroom or some other legitimate place, hide the container from view and casually walk ou� oP the business establishment. � oa-�a.i During daytime hours, virtually no bar or restaurant that sells alcoholic beverages have security at their doors to check patrons for beverage containers. Further, it is not practicable in the case of Lucy's to have done so because ordinarily, there were only two to four patrons in the establishment between 7:30 p.m. and 8:30 p.m., at any one time, in the month of April, 2001. Lucy's did not begin to see regular patrons typically arrive until 9:30 p.m. and thus, scheduled security for 9:00 p.m. Ordinarily, problems are encountered with patrons only at the end of the night when people might want that one last drink, but it is closing time. That is the time when security is most required and when Lucy's regularly schedules at least two security at the exit door plus the manager. To uphold this violation and to penalize Lucy's is to endorse the philosophy that the end justifies the means. If you want to find a violation, you do so by having an undercover officer sneak out with a beverage container, instead of observing the actual behavior of the patrons and bartenders normally interacting. It is also important to note that the $1,000.00 penalty is exorbitant when one considers that a beer sells for only $2.75 and that this is the first violation of this kind leveled against Lucy's and that Lucy's had already put into place numerous measures to insure compliance with the le�ter and the spirit of the City's ordinance. Thank you for your consideration. Very truly yours, � �� P. Areanna Coale , da-, a.+ Oificer James Labarre - tape 1, City Counsel meeting Unknown person: Could you raise your right hand... Officer Labarre Unknown person: name. .. Please be seated. State your name for the record, spell your last Officer Labarre: Jim L-a-b-a-r-r-e. Palmer: What is your occupation..... Officer Labarre: I am a police officer with the St. Paul police department. Paimer: And how long ....... Officer Labarre: Just over 6 years. Palmer: (The question asked cannot be heard to type here) Officer Labarre: Since I have had an associate degree in law enforcement and good skills _ which the state requires. I do not recall if there is 12 or 14 weeks at the police academy. Palmer: Thank you. What.... Officer Labarre: Currently { am on assignment to Western District on patro{ of the Frogtown area. I answer calis for police service, enforce traffic violations. ThaYs it. (something else is said that is not audible) Palmer: Were you in that same position when...... Officer Labarre: No I wasn't. During that time I was working under cover detail. I was put to address the quality of life issues in the Western District, Frogtown area. We were targeting street level and narcotics dealing. Palmer: Generally speaking what is involved... Officer Labarre: Frogtown area is western to lexington, summit uh, not quite summit but a tiny, iYs hard to explain, 94 north to probably Minnehaha, western to lexington. Each person has a different what Frogtown the whole area is you might have somebody that will have one opinion on it. Palmer: But its fair to say... oa�ta-1 Officer Labarre: On the outer edge yes. Palmer: Okay... Officer Labarre: Yes I am. Palmer: Are you familiar... Officer Labarre: Yes i am. Palmer: Were you... Officer Labarre: Yes i was. Palmer: Now you indicated... Officer Labarre: It was an ongoing investigation started in the middle of March 2001 and concluded the first or second week of June 2001. Palmer: And you indicated... Officer Labarre: Yeah, the Frogtown area is known for kind of one of our high crime areas known for prostitution, street level narcotics dealing and we trying to lift that quality of life issue in that area. Palmer: So how did it come about... Officer Labarre: Yes I did. Palmer: And how did it come... Officer labarre: She had complaints of Lucy's bar with violations that I am not really familiar with but that she does and I was going to the bar to as I went into other bars in the area to do surveillance for possible narcotic activities _ some hand to hand transactions or even possibly buying some _ narcotics. Paimer: And thaYs true of ... Officer Labarre: That is correct. Question by Palmer..... Officer Labarre: (Officer must have nodded or said something so softly so as not heard because Plamer continues) Palmer: And so you were in fact... � oa-ia.� Officer Labarre: As I recall. Palmer: Do you know... Officer Labarre: As I recall there would have been three as I recall for sure. Palmer: Okay. Essentially what happened..... Officer Labarre: I don't know the exact time. 1 know it was after supper time, dinner time after 6:00 p.m. as I recall. Palmer: Okay. And do you start.... Officer Labarre: I don't recall. I know that I didn't start my shift and go right to Lucy's, but I don't know what I did until that. Palmer: Okay. Do you recall going... Officer Labarre: Yes I do. Palmer: Okay. Just generally can you describe... Officer Labarre: I drove myself in an unmarked vehicle, no police markings. I was dressed in plain clothes. My appearance was different then, I had a beard, longer hair. I parked on the north side of the bar like to the alley. I then just proceeded around to north or south on western, west on Thomas and I went into the door thaYs marked with an "x" Palmer: And I am going to stop you for a second... Officer Labarre: Sure. Palmer: Prior or when you arrived... Officer Labarre: Yes, ah, the other officer like I explained earlier, we were going to go in to do some surveillance, possible narcotic activity at the bar, ah I explained to her that she could you know if you can walk out with a beer on your own. If you can, see if they stop you and I said I can do that. It was kind of my second objective of going in there. Palmer: Did you have um... Officer Labarre: Yes I had an electronic monitoring device attached to my person and other officers outside who would have monitors that could hear my conversation inside. 3 aa-ra-i (Ms. Palmer)... Officer Labarre: For under cover work it is very difficult but for the simple fact that my safety I am in there by myself I may be armed I may not be armed, they hear my conversations if I need assistance they could come (Palmer)... Officer Labarre: (Palmer)... sometimes yes, sometimes no. Officer Labarre: This one was not. (Palmer).... Officer Labarre: (Palmer)..... Officer Labarre: (Palmer)..... Officer Labarre: Not that 1 recall yes I proceeded to go inside the bar into the bar entrance. (A man here asks where the officer parked his car) Officer Labarre: My car was parked (inaudible at this point) (the man then thanked the officer) (Palmer)... Officer Labarre: (palmer)... (Officers' reply is inaudible) this portion which is the end of the tape is inaudible. (Discussion on tape where officer sat) Paimer asked a question Officer's answer not audible. n u Da.-1 �1 Beginning of Tape 2 Officer Labarre is giving an answer I cannot make out Palmer: What were you wearing... Officer Labarre: I do recall, I wore almost every night, it was btue jeans and my blue shirt Palmer... Officer Labarre: No I just held a beer rest of answer inaudible Palmer Officer Labarre: In this area here? I don't recall. Palmer Officer Labarre: His answer is inaudible. Palmer Officer Labarre: No Palmer Officer Labarre: (I can't hear his answer.) Palmer: And what happened then... Officer Labarre: I walked out the door ( I can't hear this part) a lot of times 1 do not know where they park they may park somewhere but have to move for reasons that may arise. So I walked out the bar, I held up the bottle of beer to show that I walked out with a bottle of beer. Palmer Officer Labarre: I would have extended, again 1 don't recall which arm I raised but I would have extended my arm above my head. In a straight fashion so the beer would have been above my head. Palmer � oa-i a � Officer Labarre: The lighting in front of Lucy's bar is pretty illuminated with street lights from the city and as I recall, Lucy's itself has a lighting that illuminates the sidewalk in front of the bar Palmer Officer Labarre: At that time of night, to the best of my knowledge it was not as bright as this room um dim lighting Palmer Officer Labarre: Yes Palmer Officer Labarre: i saw two people, a black and a black female getting into a Jeep Cherokee, I do not know the color of it and I held the beer up and the black female who was getting into the passenger side of the jeep said "we do the same thing all the time" and laughed. �7R�'i Officer Labarre: No I still (inaudible) (Skipped portion of tape, At this point I stopped on the tape and went forward to Roger A. Christianson's questioning) Roger A. Christianson: Officer you have been a police officer for six years Officer Labarre: That is correct. Roger A. Christianson: How did it come to pass that you were meeting with Christine Schwingler through this particular under cover effort Officer Labarre: My supervisor at the time, Sgt. Thomasser who was running the under cover detail advised me what I was going to be doing that night Roger A. Christianson: He advised you that you were going to be meeting with Christine Schwinger that evening Officer Labarre: Yes Roger A. Christianson: And so where did you meet her? 0 oa-� a� Officer Labarre: I don't recall exactly the location Roger A. Christianson: Did you actually ever speak to her? Officer Labarre: Yes. Roger A. Christianson: Can you tell me the course of the conversation was when you met with her. Officer Labarre: She introduced herself , she was from licensing, I don't know much about her job or what she does or licensing issues. She explained to me that all she was there to witness in the course of my investigation if 1 walked out with a beer or not. Roger A. Christianson How often do you make these kinds of undercover operations for removing alcohol from premises. How often have you done one of these? Officer Labarre: That was my first one. Roger A. Christianson Your last one? Officer Labarre: I don't know. Roger A. Christianson Officer Labarre: Yes. Roger A. Christianson Officer Labarre: No. Have you had any since then? This was the first one. Have you done any since? Roger A. Christianson Do you have any knowledge of other officers being requested to make the same sort of under cover operation for the same purpose. Officer Labarre: To my knowledge its any juvenile that sometimes Roger A. Christianson For underage Officer Labarre: l7nderage that is not my, that would be the vice unit and I guess I don't know. Roger A. Christianson Okay, but this is the only time that you have done it Officer Labarre: Correct 7 oa-� a-► Roger A. Christianson Are you aware of what the protocol would normally be for violating somebody for removing alcohol or allowing alcohol to be removed from the premises, do you have a protocol for that? Officer Labarre: if I witnessed it? Roger A. Christianson Right. Is there a protocol the department would tell you to use by drinking advise the bar tender that he was busted, you understand what f am saying? Officer Labarre: For myself I would write a report to licensing. Roger A. Christianson But would you normally because you have never done this before so that you don't know if you have told the bar tender that you left the premises and let him know that he is going to be cited, Officer Labarre: I don't, that's with licensing and I exactly don't' know how that is handled as control officer I would write a report to licensing informational report and pretty much let them decide to investigate it. Roger A. Christianson Officer, do you believe that it would have been useful for the owners of Lucy's to know that there had been a violation between the time frame of April 4th to August 3rd? Officer Labarre: At the time it happened on April 4th, absolutely not. I did not want them to know that a violation had occurred because of our under cover ongoing investigation for the safety of our officers. Roger A. Christianson Okay. You were interested in the neighborhood, the drugs going on in the neighborhood for drugs. So this other request was for that your supervisor requested for you to make purchase at Lucy's in conjunction with the licensing department Officer Labarre: Can you rephrase that? Roger A. Christianson I believe that you already answered the question so I will strike that question. Officer you were in the premises for about ten minutes is that what I understand. Officer Labarre: Correct. Roger A. Christianson Did you -- were you familiar with Lucy's before? Had you ever been in there before? Officer Labarre: Yes. E:3 aa-�a.� Roger A. Christianson And how many occasions had you been in there? Officer �abarre: I don't recall how many times recall service that I had been sent there. Roger A. Christianson Okay. And What kind of clientele came to Lucy's as of April 2001? Officer Labarre: The night I was there? Clientele, I guess nothing out of the ordinary. Roger A. Christianson Was there a white clientele, black clientele or female clientele or male clientele? Officer Labarre: There was both white males in there and black males in there and white females and black females by the time I was there. Roger A. Christianson You say there were ten to fifteen. Officer Labarre: Correct. Roger A. Christianson ThaYs a reflection, you didn't write that down anywhere did you. Officer Labarre: I assumed no f don't have no documentation of that. Roger A. Christianson And the report that Ms., the prosecutor, has given you that is this report that has the one line correct? Officer Labarre: 1'm sorry. I can't see. Roger A. Christianson Is this the report, Admin Judge: You may approach. Roger A. Christianson Thank you your honor. Is this the report? Officer Labarre: Ah, because of those facts, yes the case number is the same. Roger A. Christianson And is the report that you wrote down in regards to this ongoing investigation... Officer Labarre: Correct. Roger A. Christianson And you indicate I notice the question why you were asked whether you founded the report. Did you make this report officer? �; oa-1a� Officer Labarre: Yes i did. Roger A. Christianson What reports did you make? Officer Labarre: 1 would have made a supplemental report on the event that occurred when I went inside Lucy's on that date. Roger A. Christianson Do you recall what happened in that supplemental report? Officer Labarre: I turned it in and I have no idea where its at now. Roger A. Christianson I presume that you were checking out the premises that you were sitting at the bar it looks that you were apparently about half-way down that bar is that correct? Officer Labarre: Where I marked down with the circle, correct. Roger A. Christianson Officer Labarre: Yes. Did you have occasion to look around the room. Roger A. Christianson Did you notice any statements of policy in that bar that existed on either or any of the walis in regards to what the rules of the premises were? Officer Labarre: Not that I recall. Roger A. Christianson Officer, showing you what I have marked as exhibit B did you see this particular exhibit in the room that you were sitting in? Officer Labarre: Not that I recall. Roger A. Christianson Were you aware that there were such rules of the house and that there were more than one of these signs in that room? Officer Labarre: Not that I recall. Roger A. Christianson Do you see what number 10 says, would you read that? Officer Labarre: Do not bring in any beverages or leave premises with any beverage container. Roger A. Christianson You say that you did not see this sign on any of the walls in the premises. Officer Labarre: I did not. 10 oa-� �,i Roger A. Christianson Have you ever seen such rules in place at any other establishment that you have made an investigation of? Officer Labarre: I believe Willards had something to the effect of that. I couldn't read it word for word, i don't recall what it says. Roger A. Christianson Officer, you said that you had been into Lucy's before. What is your knowledge about the times that Lucy's may be busy as opposed to not busy? Officer Labarre: As the six years that I have been a patrol officer I have commonly worked the midnight shift which starts at 10:00 p.m. at night. Lucy's is normally busy when I started as is most bars on a Friday or Saturday night. Roger A. Christianson What would you tell the administrative hearing officer in regards to how busy the places are generally at 8:30 in the evening. Officer Labarre: I don't work at that time of night I was there, there was 10-15 people inside the bar. Roger A. Christianson Did you see the bartender as you got up from the stool and left? Officer Labarre: He was standing behind the bar. Roger A. Christianson Did you see which direction he was looking? Officer Labarre: Nope. I don't recall. Roger A. Christianson Officer Labarre: No. Roger A. Christianson Did you make a point of looking at him as you left? So you don't know what he was doing? Officer Labarre: That is true. Roger A. Christianson Do you have any memory as to where the cash register was when the bartender was behind the bar when you left? Officer Labarre: I don't recall. Roger A. Christianson Do you recall which what direction the cash register was facing? 11 oa-�a..� Officer Labarre: I don't recall. Roger A. Christianson How long would it have taken you officer to leave that seat at the bar to get to the front door? How many feet was that? Officer Labarre: To the best of my knowledge it would be approximately the same distance with the... Roger A. Christianson Maybe 20 feet? Officer Labarre: 20, 25 feet. Roger A. Christianson How long would it take you to make that distance from the bar stool to the door'? Officer Labarre: 5 seconds. Roger A. Christianson And you're walking real slow. Were you walking really s4ow? Or did you just walk out the door. Officer Labarre: Walked out the door in a normal walk. Roger A. Christianson So I take it after you left officer you went on about your business and that was this undercover operation that you were primarily involved in. Officer Labarre: Correct. Roger A. Christianson Which went on for six months. Officer Labarre: A little over three months. Roger A. Christianson And you had a buy set up where you were going to make a purchase that evening, is that a fair statement? Officer Labarre: Gonna attempt to make a purchase is a fair statement. Roger A. Christianson So you had people that you were going to meet. Officer Labarre: No. Roger A. Christianson That was at the Trend. Officer Labarre: I went to the Trend correct. Roger A. Christianson That 's where you were headed when you left? Officer Labarre: Correct. 12 Oo2 I a,1 Roger A. Christianson So you never told anybody that you left, you didn't tell any employees or anybody at Lucy's that you left with a micholob in you hand? Officer Labarre: Correct. Roger A. Christianson Are you right handed or left handed officer? Officer Labarre: Right handed. Roger A. Christianson So as you would have been leaving the bar stool that you were at and headed towards that door, your back would have been to the bartender? Officer Labarre: Correct. Roger A. Christianson Was there any other employee in the room at that time, did you see the lady that you referred to anywhere in the room? Officer Labarre: No, not that 1 recall. Roger A. Christianson Were you aware that there is a shift change at 8:30? Officer Labarre: No. Roger A. Christianson You did not see whether that person noticed whether you were walking out the door or not? Officer Labarre: No. Roger A. Christianson Did you personally make any observation as to whether the bartender was attempting to pay attention? He did come back and ask if you wanted another beer, right? Officer Labarre: Correct. Because I placed my beer in front of ine, empty and he came and I said yes. Roger A. Christianson Okay. Then how long did you sit there before you left with that beer? Officer Labarre: As I recall, 1 took two or three sips, casual. Roger A. Christianson If you were on the other side of that bar working that bar you wouldn't necessarily have the guy get up and leave after two or three sips on the next beer, would you? Would you be anticipating he was going to turn around and leave? 13 oa-� �� Officer Labarre: I guess. I don't know. Roger A. Christianson Do you know where the bathrooms are in this place? Officer Labarre: As I recall, sitting at the bar it was straight to my left as I was sitting at the bar. Roger A. Christianson So someone getting up from the bar to go to the left which is sort of the general direction of the door, there was only one door in and out of that place is that correct that night? Officer Labarre: Yes. The door 1 came in was to my left. Roger A. Christianson The one on Western was locked. Were you aware of that or it was closed? Officer Labarre: I don't... Roger A. Christianson You did not check that as you were going by? Officer Labarre: No because I always check the area, I always kept track of traffic in and out of the door on Thomas Avenue. Roger A. Christianson And the doors on the corner were not being used? Officer Labarre: Again, I went what I proceeded was the main entrance. Roger A. Christianson Were you aware that that was the only entrance in and out of the bar? Officer Labarre: No I knew about the other doors, but whenever 1 got a call or anything of that nature I used the 7homas entrance. Roger A. Christianson Were you aware of any time during your tenure over there where the door on the corner right at Thomas and Western was in use? Officer Labarre: The night 1 was there? Roger A. Christianson Now at any time during that bar, was this particular entrance ever used at any time when you have been at that bar, at that time, this door I'm talking about? Officer Labarre: Yes. Roger A. Christianson When was that. 14 o a-� a.! Officer Labarre: To the best of my ability as I recall there was a fight that broke out inside the bar while I was on patrol and I do remember that door being used to get people out. 1 don't know when that was. Roger A. Christianson But on the night in question there wasn't any issue as far as that door being used was there? Officer Labarre: No. Roger A. Christianson So you would have had to walk to you left even to go to the men's room wouldn't you when you got up from that stool? Officer Labarre: That is correct. Roger A. Christianson So how long would it take you if you had your beer in your right hand and you walked over, did you walk straight out or did you walk over this direction? Officer Labarre: I walked at would be an angle directly in line to that exit. Roger A. Christianson Were there any other seats or anything else in that premises? Officer Labarre: As I recall, no I, I recall the two pool tables. Roger A. Christianson There were pool tables there? Officer Labarre: Correct. Roger A. Christianson And where were those pool tables in relationship to that room? Admin. Judge: Maybe give him a pen. Roger A. Christianson I wili your honor. Admin. Judge: To the best of his recollection give us the location? Roger A. Christianson Yes, to the best of your recollection would you tell us where the pool tables were? Officer Labarre: What I recall the pool tables were two of them, and Roger A. Christianson And could you mark the direction that you took? 15 v�-E a� Admin. Judge Just for the record, officer you indicated the pool tables with red rectangles on okay, go ahead. Roger A. Christianson And would you by red dots advise this administrative hearing as how you left the premises. Roger A. Christianson Officer, how many what distance from the time you got to the end of that pool table on the western end there, how many feet was it to that door? Officer Labarre: As I recall, less than 10. Roger A. Christianson How long would it take you to get from that, you would have had to walk in that general direction to get to the bathroom. Is that your memory or don't you remember where the bathrooms were? Officer Labarre: As 1 recall, no I would have to once I got to the end of the pool table I would have to continue straight forward i should say as I recall there is a back haliway there. Roger A. Christianson All right. Thank you. You can see on the map that the bathrooms are right in this general vacinity. Is that consistent with your memory? Officer Labarre: Yes as I recall. Roger A. Christianson When you say general vacinity is there something on the map indicating where they are? Officer Labarre: Yes. Roger A. Christianson Okay. So that the general direction that you would have to walk to get to the mens room. Officer Labarre: Correct. Roger A. Christianson So what you did, you took a left and went out the door? Officer Labarre: Correct. Roger A. Christianson You got out the door, um, did you hesitate when you got out the door? Officer Labarre: I walked out the door and i just looked back to see if anyone was going to stop me. Roger A. Christianson Did you turn around? 16 aa-�aa Officer Labarre: No. Roger A. Christianson Then you said you lifted your bottle in the air? Officer Labarre: Correct. Roger A. Christianson Where were you when you did that? Officer Labarre: I was standing iYs hard to explain where I was standing Admin. Judge: Ah well lefs use something else. Try "M" since we have an "L" (laugh) Officer Labarre: As I recall I was standing approximately right here on the sidewalk. Roger A. Christianson So thaYs to the right of the door. Officer Labarre: As you are looking. Roger A. Christianson Right. And that is a wall there, a cement wall? Officer Labarre: Correct. Roger A. Christianson So something inside the room, unless these were right at the door, would not have seen you be able to do that? Officer Labarre: Correct. Roger A. Christianson I have no further questions. Redirect by Palmer Palmer: You testified... Officer Labarre: Do you mean do I double disk? Palmer: Yes, (laugh by everyone in room) Palmer: Do you have a normal..... 17 a2 -t al Officer Labarre: Normally 1 would pick a glass up with my right hand but because of the situation that I was in as an officer 1 think I may have used my left hand to leave my right hand free which is my weapon hand. Palmer: But you don't know for sure ... Officer Labarre: I don't recall. Palmer: As you were sitting you were facing the bar... Officer Labarre: Correct. Palmer: Okay. When you stood up... Officer Labarre: I stood up, I turned to my left, 1 kept the beer held out in front of ine approximately six inches to the best of my knowledge and walked straight out the door. Palmer: Did you deliberately wait for a time when you could see an employee? Officer Labarre: No. Palmer: Did you hide the beer? Officer Labarre: No. Palmer: Okay. Did you act like you were going to the bathroom... Roger A. Christianson Your honor these are misleading question and I object. Admin. Judge: Well, Mr. Christianson you, I am going to be pretty indulgent here. Go ahead, overruled. Palmer: Did you make any attempt...did you do anything unusual when you walked out of the bar? Officer Labarre: No. Pafiner: I have no further questions. Admin. Judge: Mr. Christianson, cross. Now you have your chance. Actually what I normally say during the hearing is I am pretty lenient about leading questions, however, the evidence is not in question. Evidence is what the witness says so I usually don't pay attention to what lawyers say. m oa,-�a.i Roger A. Christianson O�cer, it is true that the manner you described leaving the stool and heading out the door would not have been easy for the bartender to see what you had in your hand, would it? Officer Labarre: Correct. Roger A. Christianson This is the only time that you have been asked by the police departmenf to do fhis? Officer Labarre: No we were going to attempt it at the Trend bar but issues arose inside the bar instead. Roger A. Christianson You have never been asked to do anything further in the Western Avenue area. You are still in that area? Officer Labarre: Correct. Roger A. Christianson Would there have been anything, oh you already answered that question. I have nothing further. Palmer. I'm sorry. You said that it would not have been easy for the bartender to see? Officer Labarre: When I tarned, I took the bottle of beer in whichever hand and I turned with the beer and I started and went forward and got to the door and walked near the door my back would have been turned so if I had the beer in front of ine it would have made it difficult to see a beer, Palmer: Because you were walking away from the bar? Officer Labarre: Correct. Palmer: Would it have been difficult to see ... (unintelligible) Officer Labarre: Not at all. Palmer: Or to... (unintelligible) Officer Labarre: Not at all. Palmer: Was your other bottle still on the bar? Officer Labarre: No he took that one and gave me a new one. 19 S �.�s�',�'�..�c_. - � �.b _ \'3 � ao o � Council File # 6?. - 1 a.\ Green Sheet # 1�'� 3 3'� RESOLUTION CITY OF SAINT P. Presented By Referred To I_� Date 1 WHEREAS, adverse action was initiated against the licenses held by Blue's Saloon, Inc., 2 d/b/a Lucy's for the premises located at 601 Western Avenue North in Saint Paul (License ID# 3 49441) by the Office of LIEP for the violation of failure to take reasonable and adequate steps 4 to prevent a customer from leaving the premises with alcohol on Apri14, 2001; and WHEREAS, Licensee requested a hearing before an Administrative Law Judge, and a hearing was held on November 29, 2001 before Administrative Law Judge Bruce Johnson, who issued Findings of Fact, Conclusions and Recommendations dated December 19, 2001, in which he determined that the Office of LIEP had sustained its burden of showing a violation; and 10 11 WHEREAS, the Report of the ALJ recommended that the City Council impose a fine of 12 $1,000.00, which is the presumptive penalty recommended by Saint Paul Legislative Code 13 §409.26; now, therefore be it 14 15 RESOLVED, that a fine of $1,000.00 is imposed against the licenses held by Blue's 16 Saloon, Inc., d/b/a Lucy's for the premises located at 601 Western Avenue North in Saint Paul 17 (License ID # 49441) for the violation of failure to take reasonable and adequate steps to 18 19 20 21 22 23 24 25 26 27 28 prevent a customer from leaving the premises with alcohol on Apri14, 2001. FURTHER RESOLVED, that the findings of fact and conclusions of law contained in the ALJ Report in this case dated December 19, 2001 are adopted as the written findings and conclusion of the Council in this matter, except as modified below. FURTHER RESOLVED, that the following amendment to the AL7 Report is hereby adopted: 1. Finding of Fact # 9 is hereby amended to read as follows: 29 "#9 . The evidence is inconclusive as to whether the proliferation of empty and 30 broken alcoholic bevera¢e containers on properties in the vicinity of Lucy's, 31 particularly the premises of Jackson Masnet School across the street, has been 32 caused by�atrons of Lucv's leavin� its premises with such containers. " 33 34 35 36 37 38 This Resolution is based on the record of the proceedings before the ALJ, including the hearing on November 29, 2001, the documents and exhibits introduced therein, the findings of fact and conclusions of law of the ALJ as referenced above and the arguments and statements of the parties at the public hearing on January 23, 2002 and the deliberations of the Council in open session at that hearing. A copy of this Resolution, as adopted, shall be sent by first class mail to the 6a _\ 2. \ Administrative Law Judge and to the Licensee. Requested by Department of: Adopted by Council: Date � �� p a By: Form Approved y City Attorney By: � Approved by ayor for Submission to Council By: Adoption Certified by Council Secretary „. OFFICE OF LIEP Date: i-xoger Gurtis, Director February 4 aooa GREEN .-SHEET ,. 266-9013 NO .10 3 3 3 7 'O'a. 1 SPARTMENT DIRECTOR 3 ITY COIINCIL 2 ITY ATTORNEY ITY CLERK w�mcw� ust be on Council Agenda by: '°"'° �Ea' Dlx�crox IN. E MGT. SVC. DIR. � s soon as possible xox (OR ASSISTANT) TAL # OF SIGNATURE PAGES 1 (CLIP ALL LOCATIONS FOR SIGNATURE) ” CTION REQUESTED: That a fine of $1,000 is imposed against the licenses held by lues Saloon, Inc., d/b/a Lucy's for the premises located at 601 Western Avenue orth in Saint Paul (License ID# 49441) for the violation of failure to take ,-_reasonable and adequate steps to prevent a customer from leaving the premises . ith alcohol on April 4, 2001. That the findings of fact and conclusions of law - contained in the ALJ Report in this case dated December 19, 2001 are adopted as ".the written findings and conclusion of the Council in this matter. , ECOPA]ENDATIONS: AYPROVE (A) OR REJECT (R) EASONAL SERVICE CONTRACTS MUST ANSWER THE FOLIA➢lING: PLANNING COMMISSION CIVIL SERVICE WPSSISSION 1. Has the pexson/fism eveT woiked undei a contzac[ foz this depax[ment? CIB COMf3ITTEE HUSINESS REVIEW COUNCIL YES NO ' � STAFF Has this person/firm ever been a City employee? OISTRICT COURT YES NO - - 3. Does tfiis person/£irm possess a skill not normally possessed by any UPPORTS WHICH COUNCIL OBJECTIVE? Current City.employee? . YES NO laia all YES aaswers oa a seyarate aheet � attach. :' INITIATING PROBLEM, ISSUE, OPPORTUNITY (Who, What, When, Where, Why): Adverse - action was initiated against the licenses held by Blue's Saloon, Inc. d/b/a -'�Lucy's for the premises located at 601 Western Avenue North in Saint Paul '�,(license ID# 49441) by the Office of LIEP for the violation of failure to take ;'reasonable and adequate steps to prevent a customer from leaving the premises ith alcohol on April 4, 2001; and licensee requested a hearing before an dministrative Law Judge, and a hearing was held on November 29, 2001 before dministrative Law Judge-Bruce Johnson, who issued Findings of Fact, � onclusions and Recommendations dated December 19, 2001, in which he determined '" that the Office of LIEP had sustained its burden of showing a violation. The '`-'report of the ALJ recommended that the City Council impose a fine of $1,000, ,: hich is the presumptive`penalty recommended by Saint Paul Legislative Code :'�' 4 09 . 2 6 . DVANTAGES IF APPROVED: Compliance with Saint.Paul City policy. c ISADVANTAGES IF APPROVED: :'. ISADVANTAGES IF NOT APPROVED:' On-sale liquor establishments will no longer take de ate steps to prevent customers from leaving the premises with alcohol. , OTAL AMOUNT OF TRANSACTION $ CQ6T/REVENUE BUDGETED YES NO �UNDING SOURCE ACTIVITY INANCIAL INFORMATION: (�XPLAIN) . r , , t +• T � �`� � 2002 ^,• `� ��+ ��,� € �,�;'�\4��EVsv`,�. Presented By Referred To Council FIle # � 1 � � �` GreenSheet# 10�3 RESOLUTION CITY OF SAINT PAUL, MINNESOTA (� .' Committee: Date , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 WHEREAS, adverse action was initiated against the licenses held by ue's Saloon, Inc., d/b/a Lucy's for the premises located at 601 Western Avenue North in Sai Paul (License ID# 49441) by the Office of LIEP for the violation of failure to take reaso le and adequate steps to prevent a customer from leauing the premises with alcohol on Ap � 4, 2001; and WHEREAS, Licensee requested a hearing before an Ad inistrative Law Judge, and a hearing was held on November 29, 2001 before Administrati e Law Judge Bruce Johnson, who issued Findings of Fact, Conclusions and Recommendatio dated December 19, 2001, in which he determined that the Office of LIEP had sustained its den of showing a violation; and WF3EREAS, the Report of the ALJ . $1,000.00, which is the presumptive penalty §409.26; now, therefore be it that the City Council impose a fine of by Saint Paul Legislative Code RESOLVED, that a fine of $1,000. is imposed against the licenses held by Blue's Saloon, Inc., d/b/a Lucy's for the premise located at 601 Western Avenue North in Saint Paul (License ID# 49441) for the violation f failure to take reasonable and adequate steps to prevent a customer from leauing the emises with alcohol on Apri14, 2001. FURTHER RESOLV] ALJ Report in this case dated conclusion of the Council in t �Iiat the findings of fact and conclusions of law contained in the cember 19, 2001 are adopted as the written findings and matter. 1 2 3 4 5 6 7 8 9 10 This Resolution is based on the record of the proceedings before the ALJ, including the 0 a.- \3.� hearing on November 29, 2001, the documents and eachibits introduced therein, the fmdings of fact and conclusions of law of the ALJ as referenced above and the azguments and statements of the parties at the public hearing on January 23, 2002 and the deliberations of the Council in open session at that hearing. � A copy of this Resolution, as adopted, shall be sent by first class mail to Admiiustrative Law Judge and to the Licensee. � °�';�?�°��,€,A� � � E,,x � � ; `�„r � t �; 5 €m., Requested by Department of: Adopted by Council: Adoption Certified Council Secretary BY: �/'—d.i,o�l,t�tic.� � /�-✓2�.—� Form Approved by City Att rney Hy: � , cGG.�' � Approved by Mayor for Submission to Council By: g Approved by Mayor: Date By: OFFICE OF THE CITY ATTORNEY Claylon M. Robinson, Jr., Ciry Altorney aa-� CITY OF SAINT PAUL avrrD�v,sra„ Norm Coleman, Mayor 400 City Hnl[ � IS WesrKelloggB7vd. Saint Paul, Minnuo[a 55102 � December 21, 2001 NOTICE OF COUNCIL HEARING Roger A. Christianson Attomey at Law 386 North Wabasha Street Saint Paul, Minnesota 55102 Te[ephone: 651266-B710 Facsimile: 65/ 298-56I9 RE: All Licenses held by Blue's Saloon, Inc., d/b/a Lucy's for the premises located at 601 Westem Avenue North in Saint Paul License ID #: 49441 ��. :��y�. , �"�'_ � Dear Mr. Christianson: -;, ��.�� ° ,�:>�; s: �� 4 _ �. Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-mentioned violation has been scheduled for 5:30 p.m., Wednesday, January 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 with the City Clerk at any time during normal business hours. You may also present oral or written argument 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 Judge 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, ; k ;�� u��t�[J ce..�.�1 Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Christine Rozek, LIEP Kristen Kidder, Team Leader, Thomas-Dale/Dist.7 Planning Council, 689 N. Dale St., St. Paul, MN 55 1 03-1 644 Johnny Howard, Exec. Director, Thomas Dale Block Clubs, 1034 Lafond Ave, St. Paul, MN 55104 az-�z t STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 December 19, 2001 Fred Owusu, City Clerk 170 City Hall 15 West Kellogg Blvd. St. Paul MN 55102 RE: In the Matter of all Licenses held by Blue's Saloon, Inc., d/b1a Lucy's for The premises located at 601 Western Avenue North in St. Paul; License ID #49441 OAH Docket No. 4-6020-14456-3 Dear Mr. Owusu: Enclosed herewith and served upon you by mail is the Administrative Law Judge's Findings of Fact, Conclusions and Recommendations in the above-entitled matter. Also enclosed is the official record, with the exception of the tape recording of the hearing. Copies of the tapes will be sent to you under separate cover. Our file in this matter is now being closed. Sincerely, �r�--� i � I'�S�rL BRUCE H. JOHNSON � Assistant Chief Administrative Law Judge Telephone: 612/341-7607 BHJ:cr Encl. cc: Virginia D. Paimer Roger A. Christianson RECEIVEp DEC 2 � 20d1 CITY ATTORNEY Providing Impartial Hearings for Government and Citizens An Equal Opportunity Employer Administrative Law Section & Administrative Services (612) 341-7600 �TTY No. (612) 341-7346 � Fax No. (612) 349-2665 oz-�a.i OAH Docket No. 4-6020-14456-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE ST. PAUL CITY COUNCIL In the Matter of all Licenses held by Blue's Sal��n, Inc., d/b/a Lucy's fo� The premises located at 601 Western Avenue North in St. Paul License ID # 49441 FINDINGS OF FACT, CONC�l3SiarvS AND RECOMMENDATIONS Administrative Law Judge Bruce H. Johnson conducted a hearing in this matter beginning at 9:30.m. on Thursday, November 29, 2001, in Room 41-A, St. Paul City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota. Virginia D. Paimer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 551 o2, represented the City of St. Paul (the City) at the hearing. The Licensee, Blue's Saloon, Inc., d/b/a Lucy's (Lucy's), was represented by Roger A. Christianson, Attorney at Law, 101 East Fifth Street, Suite 2314, St. Paul, MN 55101. The record closed on December 17, 2001, when all of the parties post-hearing submissions were due. This Report is a recommendation, not a final decision. The City Council of the City of St. Paul will make the final decision after reviewing the hearing record. The Council may adopt, reject or modify these Findir�gs of Fact, Conclusions, and Recommendations. Under the City's Legislative Code,' the Council will not make its final decision until after it has provided the licensee an opportuniry to present orai 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 to present argument related to the recommended adverse action. Parties should contact the City Clerk's Office, City of St. Paul, 170 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102, to find out how to file objections or present argument. ' St. Paul Legislative Code, section 310.05 (c) (2001). (Uniess othenvise specified, all references to that code are to the 2001 edition.) oa-13.1 STATEMEN7 OF THE ISSUES � (1) Whether or not defects in the city's notices of violation and of hearing violated the St. Paul Legislative Code or principles of due process. (2) Whether or not on the evening of April 4, 2001, at approximately 8:30 p.m., a cusfomer at Lucy's (eff its premises with a botfle of an alcoholic beverage; (3) Whether or not on the evening of April 4, 2001, at approximately 8:30 p.m., Lucy's took reasonable and adequate steps to prevent persons from leaving its premises with containers of alcoholic beverages as required by the St. Paul Legislative Code; and (4) If so, what, if any, adverse action the St. Paul City Council should take against any licenses or permits issued by the City to Lucy's. Based upon the record in this matter, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. Blue's Saloon, Inc., doing business as Lucy's, (Lucy's) is a Minnesota corporation that has owned and operated a bar at 601 Western Avenue North in St. Paul, Minnesota, for the last sixteen years 3 Lucy's holds an on-sale liquor license from the City of St. Paul that will expire on April 30, 2002. Lucy's is located in what is known as the Frogtown area of St. Paul. The surrounding neighborhood is predominantly older residential in character, with a school and church nearby. 2. Situated on the northwest corner of the intersection of Western and Thomas Avenues, Lucy's has five outside entrances and exits. When no# offering live entertainment, only the easternmost entrance on Thomas Avenue is normally open to customers entering from the outside. 3. In the spring of 2001, some of the residents living near Lucy's complained to the City of St. Paul's Office of License Inspections and Environmental Protection (LIEP) that the yards and open areas in the vicinity of 2 St. Paui Legisiative Code, section 409.08(15). 3 Testimony of Areanna Coale. ° Testimony of Kristina Schweinler 5 See Exhibit A. 6 See the entrance marked with a black "x" on Exhibit A. -2- oa-►a� Lucy's were littered with empty and broken alcoholic beverage containers.' Some residents believed that customers of Lucy's were taking containers of alcohol off the premises and depositing them around the neighborhood. LIEP had received similar complaints about ten other bars throughout the city, including other bars in the Frogtown area. 4. Officials at Jackson Magnet School, which is located across the street from Lucy's, specifically complained to the City about continually finding empty alcoholic beverage bottles and broken glass on the playground and other open areas around the school. But the school staff has no actual knowledge of where that litter was has been coming from. 5. During the spring of 2Q01, the 1Plestern District Patro! Office of ths St. Paul Police Department was conducting a number of undercover operations aimed at various kinds of illegal activity in the City's Frogtown area, including the neighborhood where Lucy's is located. The undercover operations were primarily aimed at illegal drug activity and prostitution but also included possible violations of the City's licensing ordinances." 6. Kristina Schweinler is a senior license inspector employed by LEIP. In the course of her duties, she is frequently asked to witness undercover compliance checks conducted by the police. On the afternoon of April 4, 2001, the Western District Patrol Office contacted Ms. Schweinler and invited her to accompany a team of police officers that would be conducting undercover compliance checks at bars in the Frogtown area that evening. Later that evening, she met four police officers at the patrol office, including Officer James LaBarre, who had been assigned by his supervisor to conduct an undercover compliance check at Lucy's. Officer LaBarre was equipped with an electronic monitoring device that allowed the others participating in the operation to hear what was being said in his presence inside the bar. 7. Ms. Schweinler and three undercover police officers arrived in the vicinity of Lucy's in an urmarked police car ai about 7:30 p.rn. on the evening of ' Id. e Testimony of Tait Danielson. 9 Testimony of Kristina Schweinler. 10 Testimony of Patrick Bryan and Michele Towle. " Testimony of Officer James LaBarre. ' Testimony of Kristina Schweinier. ,a /d. '° /d.; testimony of Officer James LaBarre. Although it was possible to make a wire recording of ali sounds picked up by the device, the evidence estabiished that the undercover unit did not make a wire recording of Officer LaBarre's visit to Lucy's. Rather, the monitoring device was oniy being used to assure Offcer LaBarre's safety during that particular compiiance check. -3- oa-� ai April 4, 2001. They parked their car on the north side of Thomas Avenue across Westem Avenue from Lucy's — about 50 to 80 feet from the bar — and waited far Officer LaBarre to arrive. 8. Officer LaBarre drove himself to Lucy's in another unmarked police car, arriving about fifteen minutes later at about 7:45 p.m. Since Lucy's was not otfering live entertainment between 7:30 p.m. and 8:30 p.m. on the evening of April 4, 2001, only the easternmost entrance on Thomas Avenue was open to customers entering from the outside.' Officer LaBarre entered Lucy's through that entrance. 9. After entering, Officer LaBarre went over to the bar, sat down on a barstool, and ordered a bottle of beer." At ths time, the only employee on the premises was a single bartender who was serving customers at the bar. There were about ten to fifteen customers in the bar area. Officer LaBarre spent the next ten to fifteen minutes drinking the beer he had ordered and conducting surveillance of the customers. He saw no evidence of illegal activity. 10. After finishing his first bottie of beer, Office LaBarre ordered a second. After taking a few sips out of the second bottle, he stood up from the barstool, turned his back to the bartender, and began walking toward the door. As he walked, Officer LaBarre held the bottle of beer level about six inches out from his front torso. 20 It would have been difficult for the bartender standing behind the bar to have seen the bottle of beer in Officer LaBarre's hand as he walked. 11. The distance to the door from the barstool where Officer LaBarre had been sitting was about twenty to twenty-five feet. He covered that distance at a normal pace in about ten seconds, pausing once to look back and see whether or not anyone was attempting to stop him. No one did.� 12. Officer LaBarre then continued to the Thomas Avenue exit, and left the bar carrying the second, nearly full bottle of beer. �fter ieaving the building, he stopped on the sidewalk next to the main entrance and raised the bottie of 15 Testimony of Kristina Schweinler. 76 Testimony of Areanna Coale. See also the entrance marked with a black "X" on Exhibit A. " See the location marked with a circle and an "L" on Exhibit A. ' Testimony of Officer James LaBarre. ' Id. 2° Testimony of Officer James LaBarre. z� !d. 22 !d. 23 Testimony of Officer James LaBarre. See Exhibit A. � oa -� ► a i beer over his head. He did that to show Ms. Scweinler and the other undercover officers that he had been able to leave Lucy's wifh a neariy full bottle of-beer. Officer LaBarre then got into his car, and both unmarked police cars drove away to conduct compliance checks at other establishments 26 13. After his shift was over that night, Officer LaBarre prepared a general police report that referred only to ongoing undercover investigations that he conducted during the eveing af April 4, 2001. He later prepared and filed a detailed supplemental report of his undercover activities at Lucy's The St. Paul Police Department has been unable to locate that supplemental report. 14. On the evening of April 4, 2001, Ms. Schweinler also prepared a written report of the compliance check that was cenu�ucted at Lucy's. Shortly thereafter, she submitted copies of that report to her supervisor and to the City Attorney's office for further action. 15. Sometime between April and August, 2001, Ms. Schweinler met with Lucy's owner, Areanna Coale, to discuss various complaints of neighbors and conditions that neighbors wanted to have imposed on Lucy's city licenses. Those complaints included a belief by many neighbors that the customers of Lucy's were responsible for the empty and broken alcoholic beverage containers that continued to Iitter the neighborhood. At that time, Ms. Schweinler made no mention of the results of the compliance check that had occurred on April 4th. 16. Although she expressed her belief that bar patrons were not responsible for the litter in the neighborhood, Ms. Coale had addressed the litter problem. The steps she has taken include having her employees remove any litter in the vicinity of the bar at c�osing, regardless of the apparent source of the litter. Lucy's has continued doing that from August until the time of the hearing 32 Notwithstanding those efforts, empty and broken aicoholic beverage containers continue to litter the neighborhood around the bar by morning. 24 Id.; testimony of Kristina Schweinler. 25 Testimony of Officer James LaBarre. z6 Testimony of Kristina Schweinler and Offcer James LaBarre. Z ' Testimony of Officer James LaBarre. 2 e Exhibit 4. 29 Testimony of Kristina Schweinier. 3o Id.; Testimony of Areanna Coale. ai Id. 32 Testimony of Areanna Coale and David Shafer 3a Id.; testimony of Patrick Bryan, Michele Towle, and David Shafer -5- oa -i a � 17. The City Attorney's Office did not take action on the results of the compliance check at Lucy's until August 13, 2001, when it issued a formal Notice of-Violation. The City also did not take any other steps to provide Lucy's with information about an alleged April violation during the intervening four and one- half months. The Notice of Violation misidentified the door through which Officer LaBarre left Lucy's as being a door on Western Avenue, rather than the door on Thomas Avenue. 18. On August 13, 2001, Lucy's responded to the Notice of Violation by contending, among other things, that O�cer LaBarre had purposely attempted to conceal his departure from the bar by using the Western Avenue door. Lucy's also requested a hearing, as allowed by the St. Paul Legislative Code,� and this proceeding ensued when the City issued a Notice of Hearing on August 15, 2001. 19. All Lucy's bartenders are instructed, when hired, not to let customers take any alcoholic beverage containers out of the bar. Specifically, they are told to watch customers constantly and to stop them if they attempt to leave even with a glass of water. 20. Before, during, and after the April 4, 2001, compliance check, Lucy's posted large posters listing "Rules of the Ba�' on a wall facing the bar and also on a wall immediately adjacent to the rest rooms. Rule Number 10 provides: "Do not bring in any beverages or leave premises with any beverage container."' 21. At times when Lucy's provides live entertainment, it always has several security guards on the premises and frequently has more than one bartender on duty. At closing, large garbage cans are positioned at the exits, and a security guard is there to assure that customers dispose of their beverage containers there before leaving the building 4 When no security guards are on duty, the bartender is responsible for assuring that customers dispose of their beverage containers before leaving a3 �" Id.; testimony of Officer James LaBarre; Exhibit 4. � Exhibit 5. 3s St. Paui Legislative Code, section 310.05. " Exhibit 6 3e Testimony of Karen Prange and LaTonya Noble,. 39 Testimony of Karen Prange. 40 Exhibits A(locations identified with a red "X", B, C1, and C2. 41 Testimony of Areanna Coale. ^Z Id.; testimony of David Shafer and LaTonya Noble. ^' Testimony of LaTonya Noble. � oa-� �1 22. On the evening of April 4, 2001, Lucy's did not begin providing any live entertainment until 9:30 p.m. There was therefore only one bartender and no security guards on duty between 7:30 p.m. and 8:30 p.m."� 23. On the evening of April 4, 2001, the shift change for Lucy's bartenders occurred between 8:00 p. m. and 8:30 p.m., and that shift change began about the time when Officerr LaBarre left the premises 45 24. These Findings are based on all of the evidence in the record. Citations to portions of the record are not intended to be exclusive references. 25. The Administrative Law Judge adopts as Findings any Conclusions that are more appropriately described as Findings. 26. To the extent that the Memorandum that follows contains findings of fact, the Administrative Law Judge hereby adopts them as such. Based upon these Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. Minnesota law and the St. Paul Legislative Code give the Administrative Law Judge and the St. Paul City Council authority to conduct this proceeding, to consider whether Lucy's has violated provisions of the St. Paul Legislative Code, and to make findings, conclusions, and recommendations or orders on that subject, as the case may be. 2. The City gave Lucy's proper and timely notice of the hearing in this matter, and the City has complied with all of the law's substantive and procedural requirements for initiating and proceeding with this matter. Specifically, the City's misidentification in its Notice of Hearing of the door through which an undercover police officer left Lucy's premises on the evening of April 4, 2001, neither violated the notice provisions of the St. Pau( Legisiative Code nor deprived Lucy's of due process of law. 3. The City did not deprive Lucy's with due process of law by waiting until August 13, 2001, to serve a Notice of Violation of a violation that ailegedly occurred on the on the evening of April 4, 2001. °d Testimony of Areanna Coale. as Id. ^� Minnesota Statutes, section 14.50, and section 340A.503. -7- oa-iat 4. The St. Paul Legislative Code contains the following regulation pertaining to holders of on-sale licenses for the sale of intoxicating liquors: Each on-sale licensee shall have the responsibility of taking reasonable and adequate steps to prevent persons from leaving the licensed premises with a bottie, can or glass containing any alcoholic beverage, and the faifure to do so may subject such licensee to adverse action against his or her license. 5. The City has the burden of proving that Lucy's violated provisions of the St. Paul Legislative Code pertaining to the sale of intoxicating liquors, and it has met that burden in this contested case proceeding. 6. On the evening of April 4, 2001, between 8:30 p.m. and 9:00 p.m., an undercover police officer left Lucy's licensed premises while carrying a bottle of an alcoholic beverage. 7. On the evening ofApril 4, 2001, between 8:30 p.m. and 9:00 p.m., Lucy's failed to take reasonable and adequate steps to prevent a person from leaving its licensed premises with a bottle of an aicoholic beverage in violation of the St. Paul Legislative Code. 8. Upon a finding that the holder of a liquor license has violated the St. Paul Legislative Code, the City Council is empowered to take adverse action against that license. That adverse action may include: the revocation or suspension of a license, the imposition of conditions upon a license, the denial of an application for the grant, issuance or renewal of a license, the imposition of a fine, the assessment of the costs of a contested hearing, and any other disciplinary or unfavorable action taken with respect to a license, licensee or applicant for a license so 9. The proliferation of empty and broken alcoholic beverage containers on properties in the vicinity of Lucy's, particularly the premises of Jackson Magnet School across the street, has not been caused by patrons of Lucy's leaving its premises with such containers. 10. During the last sixteen years, Lucy's has not been cited for any other violations of provisions of the St. Paul Legislative Code pertaining to the " St. Paui Legisiative Code, section 409.08 (15). ae Id. 49 St. Paul Legislative Code, section 310.06(a). so St. Paul Legislative Code, section 310.01. � va -� a � sale of alcoholic beverages. During that period, its only violation of the Code was one instance of selling cigarettes to a minor. 11. Section 409.26(a) of St. Paul Legislative Code provides that: The purpose of this section is to establish a standard by which the city council determines the length of license suspensions and the propriety of revocations, and shall apply to ali on-sale and off-sale licensed premises for both intoxicating liquor under this chapter and nonintoxicating liquor under Chapter 410. These penalties are presumed to be appropriate for every case; however the council may deviate therefrom in an individual case where the council finds and determines that there exist substantial a�d compelling reasons making it more appropriate to do so. When deviating from these standards, the council shall provide written reasons that specify why the penalty selected was more appropriate. 12. Under the St. Paul Legislative Code, the presumptive penalty for a first violation of failing to take reasonable steps to stop person from leaving premises with alcoholic beverage for an establishment of Lucy's size is a fine of $1,000.00. 13. The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions. 14. The Memorandum that follows explains the reasons for these Conclusions, and to that extent, the Administrative Law Judge incorporates that Memorandum into these Conclusions. Based upon these Conclusions, the Administrative Law Judge makes the following: RECOMMEIJDATION The Administrative Law Judge respectFully recommends that the St. Paul City Council impose a fine of $1,000.00 upon Blue's Saloon, inc., d/b/a Lucy's. 51 St. Paul Legislative Code, section 40926(b)(9). � a�-i�i Dated this 19�' day of December 2001. Administrative Law MEMORANDUM I. The City's Notice of the Violation Was Both Legally and Constitutionally Sufficient In both its Notice of Violation and its Notice of Hearing, the City aileged, among other things, that an undercover police officer "left the premises from the door of the bar facing Western Avenue." But the evidence established that the o�cer actually left the premises through a door on Thomas Avenue, and the City concedes that references in both notices to the door through which the officer left the premises were erroneous. Lucy's contends that the error made both notices legally and constitutionally insu�cient and, therefore, vitiated this entire proceeding. The ALJ disagrees. Regarding legal sufficiency, the St. Paul Legisiative Code only requires that the licensee be notified generally of "the issues involved or grounds upon which the adverse action may be sought or based." �' So, the Code itself requires very littfe detail about an aileged violation. It does not require a level of detail that correctly identifies the door through which a customer may have left an establishment. Accordingly, the ALJ concludes that the City's notices did not violate the legal notice requirement. But constitutional principles of procedural due process also give rise to notice requirements. And due process requires "reasonable" notice of charges 52 Exhibits 4 and 6. �' Testimony of James LaBarre. �' St. Paul Legislative Code, section 310.05 (b). -10- oa-i ai that may result in loss of such a license. The focus of the inquiry into adequacy of notice is whether the failure of the agency to disclose facts uaderlying its case prohibits the respondent from being able to effectively respond. Here, it appears that Lucy's was prepared to defend itself by claiming that it was helpless to prevent the undercover from leaving surreptitiously through a door not visible to its bartender. That turned out not to be the case. He actualiy isft through a door that was visible to the bartender. So the mistake caused Lucy's to alter tFie nature of its defense. The bar readily did so, arguing that the incident occurred during a shift change, that the officer obscured fhe bottle from the bartender's view, and that officer's intentions were not readily ascertainabie from is actions. In other words, the mistake in no way prevented or impeded Lucy's ability to raise any legitimate defenses. The ALJ therefore concludes misidentification of the door through s�hich the undercover police officer left the premises was a harmless error that did not deprive Lucy's of due process of law. II. The Four-Month Detay in Issuing a Notice of Violation Did Not Deprive Lucy's of Due Process Lucy's has suggested that the City's four-month delay in issuing a Notice of Violation either violates principles of due process or otherwise limits its ability to proceed with this matter. Lucy's offers no authority for the proposition that by failing to proceed more promptly, the City has somehow waived its right to proceed later. Moreover, in terms of due process, failure to proceed promptly with an administrative matter violates due process only when the delay can be shown to cause a deprivation of protected rights. Here, Lucy's failed to establish that any of its rights were prejudiced by the delay. III. Under the Circumstances, Lucy's Failed to Take Reasonable Steps to Prevent a Violation There was no genuine dispute about the fact that on the evening of April 4, 2001, about 8:30 p.m., an undercover St. Paul police officer walked out of Lucy's with an open bottle of beer in his hand. There is also no genuine dispute about the fact that nobody at Lucy's tried to prevent him from doing so. So, what � Humenansky v. Mrnn. Bd. of Medical Examiners, 525 N.W.2d 559, 565-66 (Minn. App. 1994), citing Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377 (1959). � Zotos InYI v. Kennedy, 460 F.Supp. 268, 274 (D.D.C. 1978). 57 Cf. Mathews v. Eldrige, 424 U.S. 319 (1976). -11- oa-� a � is at issue here is whether or not the measures that Lucy's had in place to prevent that kind of thing from happening met the legal requirement of "reasonable and adequate sfeps to prevent persons from leaving the licensed premises" with a can, bottle, or glass containing an alcoholic beverage." The evidence established that Lucy's specifically trains and instructs its bartenders not to aliow patrons to leave the bar with alcoholic beverages in their possession. It also has been displaying two placards in prominent locations in the bar area that list its "Rules of the House." Rule No. 10 admonishes patrons not to leave the premises with any beverage container. Moreover, from 9:00 p.m. to closing Thursday through Sunday, while Lucy's is offering live entertainment, it stations security personnel at the doors to prevent patrons from taking alcohol outside. Ais�, when live entertairment is in progress, Lucy's frequently has more than one bartender on dufiy. On the other hand, patronage is relatively light when live entertainment is not available, and Lucy's usually has only one bartender on duty during those times. It is also vulnerable to this kind of violation during shift changes when bartenders are likely to be preoccupied with other duties. This incident occurred on a Wednesday night. There was no live entertainment at the time. There were only ten to fifteen patrons in the bar, and only one bartender was still on duty. In other words, this incident happened at a time when Lucy's was most vulnerable to this kind of violation. The evidence failed to establish any prior history of this kind of violation that should have should have warned the management of Lucy's that an incident such as this was likely to occur during periods of light patronage. But what is troublesome is the layout of the bar. The evidence estabiished that the bar faced the only open exit. So, a patron attempting to leave the establishment with an alcoholic beverage would necessarily have his or her back to the bartender during the time it would take to walk from the bar over to and through the exit. During that walk, it would be diffcult for the bartender to see whether or not the patron was holding a beverage container. In fact, this appears to be what happened on the evening of April 4, 2001. !n other words the physical layout within the bar tends to obscure potential violations of this ordinance. The ALJ therefore concludes that Lucy's general instructions to bartenders not to allow patrons to leave the premises with alcohol containers were not an inadequate se St. Paul Legislative Code, Section 409.08(15). 59 Finding of Fact No. 19. so Finding of Fact No. 20. 67 Finding of Fact No. 21. 6Z On Wednesday nights, entertainment does not begin until 9:30 p.m., which is when Lucy's brings in additionai bartenders and security personnel. (Testimony of Areanna Coale) 63 Testimony of James Labarre. -12- oa-i a-I preventive measure. Rather reasonable and adequate steps, at a minimum, would include specific warnings and instructions to bartenders to exercise heightened awareness and vigilance to guard against patrons leaving the bar with alcohol during slow periods when only one bartender and no security personnel are on duty. IV. The Presumptive Penaity is Reasonable Here The evidence established that Lucy's is located in an older, but essentially residential neighborhood. Jackson Magnet School is located across from Lucy's on Thamas Avenue. Patrick Bryan, the principal at Jackson, and Michele Towle, one of his teachers, both testified as interested parties that there has been a continuing problem since at least last August with large numbers of empty (and sometime partially full) and broken alcoholic beverage containers littering the school yard in the mornings. Tait Danielson, another interested party, testified that the problem extended beyond the school to other parts of the immediate neighborhood. But none of them had any personal knowledge of where those containers might be coming from, and there was simply no evidence in the record tending to establish that Lucy's or its patrons were the source 6 In fact, the evidence tended to establish that the beverage containers littering the neighborhood were for beverages not available at Lucy's. Additionally, Lucy's owner, Areanna Coale, testified that since August, she has been having her staff check the grounds around the bar nightly to remove any containers they might find, regard(ess of 4he origin. Notwithstanding those efforts, alcoholic beverage containers continue to turn up in the immediate neighborhood. In summary, while the evidence estabiished that the neighborhood has a probiems with beverage containers, it failed to establish that Lucy's was the source of that problem. Tait Danielson testified as an interested party and expressed his opinion that a number of conditions should be imposed on Lucy's license, including a requirement to have security available on the premises at all times and not only when there was live entertainment. His testimony was predicated on the assumption that Lucy's is the source of the larger neighborhood litter problem. From Ms. Coale's testimony, it was clear that the cost of having security available all the time, including the time of light patronage, would far exceed the �^ Exhibit 10. 65 Aithough Ms. Schweinler testified that the undercover operation at Lucy's was prompted by neighborhood complaints about alcohol leaving its premises on other occasions, no probative evidence was introduced to support those complaints. 6s Finding of Fact No. 16. -13- oa-ial $1,000 fine specified by the Code as the presumptive penalty for a first offense. The Code does allow the City Council to deviate from the presumptive penalties "where the council finds and determines that there exist substantial and compeliing reasons making it more appropriate to do so." While proliferation of empty and broken alcoholic beverage containers throughout the neighborhood may well be a substantial and compelling problem for the residents, the evidence failed to establish that imposing more stringent penaities or license conditions on Lucy's will end that problem. Rather, the evidence here tended to establish fhat this was an isolated violation that occurred because Lucy's failed to instruct its bartenders to exercise sufficient vigilance during periods of light patronage. It is for these reasons that the ALJ recommends that the Council impose the presumptive fine of $1,000.00 for a first violafion. B. H. J. 6 ' St. Paul Legislative Code, section 409.26(b). 68 St. Paui Legislative Code, section 409.26 (a). 69 The City Attorney did not argue for more stringent penaities. -14- # oa-� a.� � P. Areanna Coa1e Attorney at Law Suc Wes[ Fi&h Street, Suite 700 Saint Paul, MN 55102 651-297-6400 Fas:651-224-s3zs January 23, 2002 St. Paul City Council Members 310 City Hall 15 West Kellogg Blvd. St. Paul, Minnesota 55102 Re: Alleged Violation at Lucy�s Bar Hearing: January 23, 2002 at 5:30 p.m. Dear Council Members: On behalf of Lucy's bar, I respectfully request that you take no adverse action regarding Lucy's alleged violation which is currently pending before the St. Paul City Council. The alleged violation came about because an undercover police officer walked out of Lucy's bar while holding a beer bottle in his hand. It is the responsibility of a bar to provide reasonable and adequate means to prevent patrons from leaving the establishment with beverage containers. Prior to this incident, the LIEP office stated that there had been complaints from Lucy's neighbors that the patronage of Lucy's was causing beverage container litter in the neighborhood. In response to this concern, Lucy's posted two colorful 3'X 4' signs in its' business stating that patrons were not to bring any beverage containers into Lucy's or leave the premises with any beverage containers. Lucy's conducted training with every member of its' staff to insure that all bartenders and staff understood that no beverage containers of any kind were to be removed from the premises. This directive was discussed with staff on a weekly basis. Lucy's retained security that started at 9:00 p.m. each night to insure that patrons coming into the bar had proper identification in their possession, were dressed appropriately, possessed an appropriate attitude and, demeanor and were not currently barred from the establishment. The security was trained to examine people as they left the establishment to insure that no one leaving Lucy's had in their possession any beverage container. A large garbage container was placed at the exit to make it ^ oa-iai convenient for patrons with beverage containers to deposit them before exiting Lucy�s. Lucy�s designated one door as a public exit to insure maximum observation by the bartender and security o£ patrons as they entered or left the premises. Any patron who intentionally left the premises with any beverage container in his or her hand was barred from the premises permanently. Lucy's cleaning staff made an examination of the premises at night and in the morning to insure that any beverage bottles or cans in the area of the bar were picked up, even though they did not come from Lucy's or her patrons. The beverage containers collected typically reflected products not sold at Lucy's like Old English, Colt 45 Malt liquor, cans of beer and liquor bottles. Lucy�s set up a monitoring program to ascertain the cause of the beverage container litter in the area and confirmed that it was caused by tenants and visitors of certain residences near Lucy's who participated in after hours parties. one such residence was across the street and two doors away from Lucy's on Western Avenue. The participants would leave the after hours' parties and litter the neighborhood with beverage containers on their way to their destinations. Lucy�s did everything it reasonably could do to insure that reasonable and adequate means were present so that patrons would not leave the premises with their beverage containers. The violation occurred because LIEP requested the St. Paul police officer to see if he could walk out of Lucy's with a beverage container in his hand. In other words, this was not a general investigation to ascertain whether patrons were walking out of Lucy's with their beverage containers or whether Lucy's was complying with using reasonable and adequate means to keep patrons from leaving with their beverage containers. The object, the government's game, was to see how cleverly they could sneak out of Lucy's without being detected. The police officer entered the bar at the request of LIEP and ordered a beer. After consuming the beer, the officer was served a second beer. The first beverage container was removed from the bar by the bartender. The police officer took only two to three sips from his beer and turned left in the direction of the men's bathroom. The officer testified that he did not know which direction the bartender was facing when he, the police officer, made his move. , oa-i a► It is diPficult to believe that the officer, knowing he was going to intentionally exit the door with his beer in hand, would not have taken a moment to see where the bartender was facing at the time. It is also troublesome to Lucy's that the undercover officer totally ignored the two, colorful 3'X 4' signs that were within several feet of the officer in carrying out his mission. The officer testified that he did not know which hand that the beer was in but indicated that it may well have been in his left hand because when he is engaged he leaves his right hand free in case of problems. There is no way that the bartender could have seen the officer holding the beer if the bartender was momentarily facing away from the police officer as the officer turned to his left. Like virtually all bars, there is a front bar and a back bar. The bartender at Lucy's must turn his back at times to retrieve liquor bottles or use the cash register. It is impossible for a bartender to always face each and every customer 100� of the time. The assumption, if any were to be made, was that the police of£icer was merely qoing to the bathroom since he only took two to three sips from his beer and he turned and proceeded to his left in the direction of the men's bathroom. The police officer testified that when he went to the door that his back was to the bar and that he held the beer six inches in front of his chest. It would have been impossible for the bartender to have seen the beverage container under these circumstances. This was not a general investiqation. This was a trap. If this violation is upheld and Lucy's is financially penalized on the specific facts of this case, the trust and confidence that Lucy's and other restaurants and drinking establishments have in the government will be undermined. It is also significant to consider, that this alleged violation occurred on April 4, 2001 and that notice of the alleged violation was not made until four months later. If in fact, this had been a legitimate action, LIEP would have provided instant notification, which is their ordinary practice. Some ten (10) months have now passed since this incident and no other violation has been reported. Anyone can qo into any bar in St. Paul and surreptitiously remove a beverage container. Anyone can wait until the bartender is momentarily distracted or his/her back is turned, take an almost full beverage, act like you are going to the bathroom or some other legitimate place, hide the container from view and casually walk ou� oP the business establishment. � oa-�a.i During daytime hours, virtually no bar or restaurant that sells alcoholic beverages have security at their doors to check patrons for beverage containers. Further, it is not practicable in the case of Lucy's to have done so because ordinarily, there were only two to four patrons in the establishment between 7:30 p.m. and 8:30 p.m., at any one time, in the month of April, 2001. Lucy's did not begin to see regular patrons typically arrive until 9:30 p.m. and thus, scheduled security for 9:00 p.m. Ordinarily, problems are encountered with patrons only at the end of the night when people might want that one last drink, but it is closing time. That is the time when security is most required and when Lucy's regularly schedules at least two security at the exit door plus the manager. To uphold this violation and to penalize Lucy's is to endorse the philosophy that the end justifies the means. If you want to find a violation, you do so by having an undercover officer sneak out with a beverage container, instead of observing the actual behavior of the patrons and bartenders normally interacting. It is also important to note that the $1,000.00 penalty is exorbitant when one considers that a beer sells for only $2.75 and that this is the first violation of this kind leveled against Lucy's and that Lucy's had already put into place numerous measures to insure compliance with the le�ter and the spirit of the City's ordinance. Thank you for your consideration. Very truly yours, � �� P. Areanna Coale , da-, a.+ Oificer James Labarre - tape 1, City Counsel meeting Unknown person: Could you raise your right hand... Officer Labarre Unknown person: name. .. Please be seated. State your name for the record, spell your last Officer Labarre: Jim L-a-b-a-r-r-e. Palmer: What is your occupation..... Officer Labarre: I am a police officer with the St. Paul police department. Paimer: And how long ....... Officer Labarre: Just over 6 years. Palmer: (The question asked cannot be heard to type here) Officer Labarre: Since I have had an associate degree in law enforcement and good skills _ which the state requires. I do not recall if there is 12 or 14 weeks at the police academy. Palmer: Thank you. What.... Officer Labarre: Currently { am on assignment to Western District on patro{ of the Frogtown area. I answer calis for police service, enforce traffic violations. ThaYs it. (something else is said that is not audible) Palmer: Were you in that same position when...... Officer Labarre: No I wasn't. During that time I was working under cover detail. I was put to address the quality of life issues in the Western District, Frogtown area. We were targeting street level and narcotics dealing. Palmer: Generally speaking what is involved... Officer Labarre: Frogtown area is western to lexington, summit uh, not quite summit but a tiny, iYs hard to explain, 94 north to probably Minnehaha, western to lexington. Each person has a different what Frogtown the whole area is you might have somebody that will have one opinion on it. Palmer: But its fair to say... oa�ta-1 Officer Labarre: On the outer edge yes. Palmer: Okay... Officer Labarre: Yes I am. Palmer: Are you familiar... Officer Labarre: Yes i am. Palmer: Were you... Officer Labarre: Yes i was. Palmer: Now you indicated... Officer Labarre: It was an ongoing investigation started in the middle of March 2001 and concluded the first or second week of June 2001. Palmer: And you indicated... Officer Labarre: Yeah, the Frogtown area is known for kind of one of our high crime areas known for prostitution, street level narcotics dealing and we trying to lift that quality of life issue in that area. Palmer: So how did it come about... Officer Labarre: Yes I did. Palmer: And how did it come... Officer labarre: She had complaints of Lucy's bar with violations that I am not really familiar with but that she does and I was going to the bar to as I went into other bars in the area to do surveillance for possible narcotic activities _ some hand to hand transactions or even possibly buying some _ narcotics. Paimer: And thaYs true of ... Officer Labarre: That is correct. Question by Palmer..... Officer Labarre: (Officer must have nodded or said something so softly so as not heard because Plamer continues) Palmer: And so you were in fact... � oa-ia.� Officer Labarre: As I recall. Palmer: Do you know... Officer Labarre: As I recall there would have been three as I recall for sure. Palmer: Okay. Essentially what happened..... Officer Labarre: I don't know the exact time. 1 know it was after supper time, dinner time after 6:00 p.m. as I recall. Palmer: Okay. And do you start.... Officer Labarre: I don't recall. I know that I didn't start my shift and go right to Lucy's, but I don't know what I did until that. Palmer: Okay. Do you recall going... Officer Labarre: Yes I do. Palmer: Okay. Just generally can you describe... Officer Labarre: I drove myself in an unmarked vehicle, no police markings. I was dressed in plain clothes. My appearance was different then, I had a beard, longer hair. I parked on the north side of the bar like to the alley. I then just proceeded around to north or south on western, west on Thomas and I went into the door thaYs marked with an "x" Palmer: And I am going to stop you for a second... Officer Labarre: Sure. Palmer: Prior or when you arrived... Officer Labarre: Yes, ah, the other officer like I explained earlier, we were going to go in to do some surveillance, possible narcotic activity at the bar, ah I explained to her that she could you know if you can walk out with a beer on your own. If you can, see if they stop you and I said I can do that. It was kind of my second objective of going in there. Palmer: Did you have um... Officer Labarre: Yes I had an electronic monitoring device attached to my person and other officers outside who would have monitors that could hear my conversation inside. 3 aa-ra-i (Ms. Palmer)... Officer Labarre: For under cover work it is very difficult but for the simple fact that my safety I am in there by myself I may be armed I may not be armed, they hear my conversations if I need assistance they could come (Palmer)... Officer Labarre: (Palmer)... sometimes yes, sometimes no. Officer Labarre: This one was not. (Palmer).... Officer Labarre: (Palmer)..... Officer Labarre: (Palmer)..... Officer Labarre: Not that 1 recall yes I proceeded to go inside the bar into the bar entrance. (A man here asks where the officer parked his car) Officer Labarre: My car was parked (inaudible at this point) (the man then thanked the officer) (Palmer)... Officer Labarre: (palmer)... (Officers' reply is inaudible) this portion which is the end of the tape is inaudible. (Discussion on tape where officer sat) Paimer asked a question Officer's answer not audible. n u Da.-1 �1 Beginning of Tape 2 Officer Labarre is giving an answer I cannot make out Palmer: What were you wearing... Officer Labarre: I do recall, I wore almost every night, it was btue jeans and my blue shirt Palmer... Officer Labarre: No I just held a beer rest of answer inaudible Palmer Officer Labarre: In this area here? I don't recall. Palmer Officer Labarre: His answer is inaudible. Palmer Officer Labarre: No Palmer Officer Labarre: (I can't hear his answer.) Palmer: And what happened then... Officer Labarre: I walked out the door ( I can't hear this part) a lot of times 1 do not know where they park they may park somewhere but have to move for reasons that may arise. So I walked out the bar, I held up the bottle of beer to show that I walked out with a bottle of beer. Palmer Officer Labarre: I would have extended, again 1 don't recall which arm I raised but I would have extended my arm above my head. In a straight fashion so the beer would have been above my head. Palmer � oa-i a � Officer Labarre: The lighting in front of Lucy's bar is pretty illuminated with street lights from the city and as I recall, Lucy's itself has a lighting that illuminates the sidewalk in front of the bar Palmer Officer Labarre: At that time of night, to the best of my knowledge it was not as bright as this room um dim lighting Palmer Officer Labarre: Yes Palmer Officer Labarre: i saw two people, a black and a black female getting into a Jeep Cherokee, I do not know the color of it and I held the beer up and the black female who was getting into the passenger side of the jeep said "we do the same thing all the time" and laughed. �7R�'i Officer Labarre: No I still (inaudible) (Skipped portion of tape, At this point I stopped on the tape and went forward to Roger A. Christianson's questioning) Roger A. Christianson: Officer you have been a police officer for six years Officer Labarre: That is correct. Roger A. Christianson: How did it come to pass that you were meeting with Christine Schwingler through this particular under cover effort Officer Labarre: My supervisor at the time, Sgt. Thomasser who was running the under cover detail advised me what I was going to be doing that night Roger A. Christianson: He advised you that you were going to be meeting with Christine Schwinger that evening Officer Labarre: Yes Roger A. Christianson: And so where did you meet her? 0 oa-� a� Officer Labarre: I don't recall exactly the location Roger A. Christianson: Did you actually ever speak to her? Officer Labarre: Yes. Roger A. Christianson: Can you tell me the course of the conversation was when you met with her. Officer Labarre: She introduced herself , she was from licensing, I don't know much about her job or what she does or licensing issues. She explained to me that all she was there to witness in the course of my investigation if 1 walked out with a beer or not. Roger A. Christianson How often do you make these kinds of undercover operations for removing alcohol from premises. How often have you done one of these? Officer Labarre: That was my first one. Roger A. Christianson Your last one? Officer Labarre: I don't know. Roger A. Christianson Officer Labarre: Yes. Roger A. Christianson Officer Labarre: No. Have you had any since then? This was the first one. Have you done any since? Roger A. Christianson Do you have any knowledge of other officers being requested to make the same sort of under cover operation for the same purpose. Officer Labarre: To my knowledge its any juvenile that sometimes Roger A. Christianson For underage Officer Labarre: l7nderage that is not my, that would be the vice unit and I guess I don't know. Roger A. Christianson Okay, but this is the only time that you have done it Officer Labarre: Correct 7 oa-� a-► Roger A. Christianson Are you aware of what the protocol would normally be for violating somebody for removing alcohol or allowing alcohol to be removed from the premises, do you have a protocol for that? Officer Labarre: if I witnessed it? Roger A. Christianson Right. Is there a protocol the department would tell you to use by drinking advise the bar tender that he was busted, you understand what f am saying? Officer Labarre: For myself I would write a report to licensing. Roger A. Christianson But would you normally because you have never done this before so that you don't know if you have told the bar tender that you left the premises and let him know that he is going to be cited, Officer Labarre: I don't, that's with licensing and I exactly don't' know how that is handled as control officer I would write a report to licensing informational report and pretty much let them decide to investigate it. Roger A. Christianson Officer, do you believe that it would have been useful for the owners of Lucy's to know that there had been a violation between the time frame of April 4th to August 3rd? Officer Labarre: At the time it happened on April 4th, absolutely not. I did not want them to know that a violation had occurred because of our under cover ongoing investigation for the safety of our officers. Roger A. Christianson Okay. You were interested in the neighborhood, the drugs going on in the neighborhood for drugs. So this other request was for that your supervisor requested for you to make purchase at Lucy's in conjunction with the licensing department Officer Labarre: Can you rephrase that? Roger A. Christianson I believe that you already answered the question so I will strike that question. Officer you were in the premises for about ten minutes is that what I understand. Officer Labarre: Correct. Roger A. Christianson Did you -- were you familiar with Lucy's before? Had you ever been in there before? Officer Labarre: Yes. E:3 aa-�a.� Roger A. Christianson And how many occasions had you been in there? Officer �abarre: I don't recall how many times recall service that I had been sent there. Roger A. Christianson Okay. And What kind of clientele came to Lucy's as of April 2001? Officer Labarre: The night I was there? Clientele, I guess nothing out of the ordinary. Roger A. Christianson Was there a white clientele, black clientele or female clientele or male clientele? Officer Labarre: There was both white males in there and black males in there and white females and black females by the time I was there. Roger A. Christianson You say there were ten to fifteen. Officer Labarre: Correct. Roger A. Christianson ThaYs a reflection, you didn't write that down anywhere did you. Officer Labarre: I assumed no f don't have no documentation of that. Roger A. Christianson And the report that Ms., the prosecutor, has given you that is this report that has the one line correct? Officer Labarre: 1'm sorry. I can't see. Roger A. Christianson Is this the report, Admin Judge: You may approach. Roger A. Christianson Thank you your honor. Is this the report? Officer Labarre: Ah, because of those facts, yes the case number is the same. Roger A. Christianson And is the report that you wrote down in regards to this ongoing investigation... Officer Labarre: Correct. Roger A. Christianson And you indicate I notice the question why you were asked whether you founded the report. Did you make this report officer? �; oa-1a� Officer Labarre: Yes i did. Roger A. Christianson What reports did you make? Officer Labarre: 1 would have made a supplemental report on the event that occurred when I went inside Lucy's on that date. Roger A. Christianson Do you recall what happened in that supplemental report? Officer Labarre: I turned it in and I have no idea where its at now. Roger A. Christianson I presume that you were checking out the premises that you were sitting at the bar it looks that you were apparently about half-way down that bar is that correct? Officer Labarre: Where I marked down with the circle, correct. Roger A. Christianson Officer Labarre: Yes. Did you have occasion to look around the room. Roger A. Christianson Did you notice any statements of policy in that bar that existed on either or any of the walis in regards to what the rules of the premises were? Officer Labarre: Not that I recall. Roger A. Christianson Officer, showing you what I have marked as exhibit B did you see this particular exhibit in the room that you were sitting in? Officer Labarre: Not that I recall. Roger A. Christianson Were you aware that there were such rules of the house and that there were more than one of these signs in that room? Officer Labarre: Not that I recall. Roger A. Christianson Do you see what number 10 says, would you read that? Officer Labarre: Do not bring in any beverages or leave premises with any beverage container. Roger A. Christianson You say that you did not see this sign on any of the walls in the premises. Officer Labarre: I did not. 10 oa-� �,i Roger A. Christianson Have you ever seen such rules in place at any other establishment that you have made an investigation of? Officer Labarre: I believe Willards had something to the effect of that. I couldn't read it word for word, i don't recall what it says. Roger A. Christianson Officer, you said that you had been into Lucy's before. What is your knowledge about the times that Lucy's may be busy as opposed to not busy? Officer Labarre: As the six years that I have been a patrol officer I have commonly worked the midnight shift which starts at 10:00 p.m. at night. Lucy's is normally busy when I started as is most bars on a Friday or Saturday night. Roger A. Christianson What would you tell the administrative hearing officer in regards to how busy the places are generally at 8:30 in the evening. Officer Labarre: I don't work at that time of night I was there, there was 10-15 people inside the bar. Roger A. Christianson Did you see the bartender as you got up from the stool and left? Officer Labarre: He was standing behind the bar. Roger A. Christianson Did you see which direction he was looking? Officer Labarre: Nope. I don't recall. Roger A. Christianson Officer Labarre: No. Roger A. Christianson Did you make a point of looking at him as you left? So you don't know what he was doing? Officer Labarre: That is true. Roger A. Christianson Do you have any memory as to where the cash register was when the bartender was behind the bar when you left? Officer Labarre: I don't recall. Roger A. Christianson Do you recall which what direction the cash register was facing? 11 oa-�a..� Officer Labarre: I don't recall. Roger A. Christianson How long would it have taken you officer to leave that seat at the bar to get to the front door? How many feet was that? Officer Labarre: To the best of my knowledge it would be approximately the same distance with the... Roger A. Christianson Maybe 20 feet? Officer Labarre: 20, 25 feet. Roger A. Christianson How long would it take you to make that distance from the bar stool to the door'? Officer Labarre: 5 seconds. Roger A. Christianson And you're walking real slow. Were you walking really s4ow? Or did you just walk out the door. Officer Labarre: Walked out the door in a normal walk. Roger A. Christianson So I take it after you left officer you went on about your business and that was this undercover operation that you were primarily involved in. Officer Labarre: Correct. Roger A. Christianson Which went on for six months. Officer Labarre: A little over three months. Roger A. Christianson And you had a buy set up where you were going to make a purchase that evening, is that a fair statement? Officer Labarre: Gonna attempt to make a purchase is a fair statement. Roger A. Christianson So you had people that you were going to meet. Officer Labarre: No. Roger A. Christianson That was at the Trend. Officer Labarre: I went to the Trend correct. Roger A. Christianson That 's where you were headed when you left? Officer Labarre: Correct. 12 Oo2 I a,1 Roger A. Christianson So you never told anybody that you left, you didn't tell any employees or anybody at Lucy's that you left with a micholob in you hand? Officer Labarre: Correct. Roger A. Christianson Are you right handed or left handed officer? Officer Labarre: Right handed. Roger A. Christianson So as you would have been leaving the bar stool that you were at and headed towards that door, your back would have been to the bartender? Officer Labarre: Correct. Roger A. Christianson Was there any other employee in the room at that time, did you see the lady that you referred to anywhere in the room? Officer Labarre: No, not that 1 recall. Roger A. Christianson Were you aware that there is a shift change at 8:30? Officer Labarre: No. Roger A. Christianson You did not see whether that person noticed whether you were walking out the door or not? Officer Labarre: No. Roger A. Christianson Did you personally make any observation as to whether the bartender was attempting to pay attention? He did come back and ask if you wanted another beer, right? Officer Labarre: Correct. Because I placed my beer in front of ine, empty and he came and I said yes. Roger A. Christianson Okay. Then how long did you sit there before you left with that beer? Officer Labarre: As I recall, 1 took two or three sips, casual. Roger A. Christianson If you were on the other side of that bar working that bar you wouldn't necessarily have the guy get up and leave after two or three sips on the next beer, would you? Would you be anticipating he was going to turn around and leave? 13 oa-� �� Officer Labarre: I guess. I don't know. Roger A. Christianson Do you know where the bathrooms are in this place? Officer Labarre: As I recall, sitting at the bar it was straight to my left as I was sitting at the bar. Roger A. Christianson So someone getting up from the bar to go to the left which is sort of the general direction of the door, there was only one door in and out of that place is that correct that night? Officer Labarre: Yes. The door 1 came in was to my left. Roger A. Christianson The one on Western was locked. Were you aware of that or it was closed? Officer Labarre: I don't... Roger A. Christianson You did not check that as you were going by? Officer Labarre: No because I always check the area, I always kept track of traffic in and out of the door on Thomas Avenue. Roger A. Christianson And the doors on the corner were not being used? Officer Labarre: Again, I went what I proceeded was the main entrance. Roger A. Christianson Were you aware that that was the only entrance in and out of the bar? Officer Labarre: No I knew about the other doors, but whenever 1 got a call or anything of that nature I used the 7homas entrance. Roger A. Christianson Were you aware of any time during your tenure over there where the door on the corner right at Thomas and Western was in use? Officer Labarre: The night 1 was there? Roger A. Christianson Now at any time during that bar, was this particular entrance ever used at any time when you have been at that bar, at that time, this door I'm talking about? Officer Labarre: Yes. Roger A. Christianson When was that. 14 o a-� a.! Officer Labarre: To the best of my ability as I recall there was a fight that broke out inside the bar while I was on patrol and I do remember that door being used to get people out. 1 don't know when that was. Roger A. Christianson But on the night in question there wasn't any issue as far as that door being used was there? Officer Labarre: No. Roger A. Christianson So you would have had to walk to you left even to go to the men's room wouldn't you when you got up from that stool? Officer Labarre: That is correct. Roger A. Christianson So how long would it take you if you had your beer in your right hand and you walked over, did you walk straight out or did you walk over this direction? Officer Labarre: I walked at would be an angle directly in line to that exit. Roger A. Christianson Were there any other seats or anything else in that premises? Officer Labarre: As I recall, no I, I recall the two pool tables. Roger A. Christianson There were pool tables there? Officer Labarre: Correct. Roger A. Christianson And where were those pool tables in relationship to that room? Admin. Judge: Maybe give him a pen. Roger A. Christianson I wili your honor. Admin. Judge: To the best of his recollection give us the location? Roger A. Christianson Yes, to the best of your recollection would you tell us where the pool tables were? Officer Labarre: What I recall the pool tables were two of them, and Roger A. Christianson And could you mark the direction that you took? 15 v�-E a� Admin. Judge Just for the record, officer you indicated the pool tables with red rectangles on okay, go ahead. Roger A. Christianson And would you by red dots advise this administrative hearing as how you left the premises. Roger A. Christianson Officer, how many what distance from the time you got to the end of that pool table on the western end there, how many feet was it to that door? Officer Labarre: As I recall, less than 10. Roger A. Christianson How long would it take you to get from that, you would have had to walk in that general direction to get to the bathroom. Is that your memory or don't you remember where the bathrooms were? Officer Labarre: As 1 recall, no I would have to once I got to the end of the pool table I would have to continue straight forward i should say as I recall there is a back haliway there. Roger A. Christianson All right. Thank you. You can see on the map that the bathrooms are right in this general vacinity. Is that consistent with your memory? Officer Labarre: Yes as I recall. Roger A. Christianson When you say general vacinity is there something on the map indicating where they are? Officer Labarre: Yes. Roger A. Christianson Okay. So that the general direction that you would have to walk to get to the mens room. Officer Labarre: Correct. Roger A. Christianson So what you did, you took a left and went out the door? Officer Labarre: Correct. Roger A. Christianson You got out the door, um, did you hesitate when you got out the door? Officer Labarre: I walked out the door and i just looked back to see if anyone was going to stop me. Roger A. Christianson Did you turn around? 16 aa-�aa Officer Labarre: No. Roger A. Christianson Then you said you lifted your bottle in the air? Officer Labarre: Correct. Roger A. Christianson Where were you when you did that? Officer Labarre: I was standing iYs hard to explain where I was standing Admin. Judge: Ah well lefs use something else. Try "M" since we have an "L" (laugh) Officer Labarre: As I recall I was standing approximately right here on the sidewalk. Roger A. Christianson So thaYs to the right of the door. Officer Labarre: As you are looking. Roger A. Christianson Right. And that is a wall there, a cement wall? Officer Labarre: Correct. Roger A. Christianson So something inside the room, unless these were right at the door, would not have seen you be able to do that? Officer Labarre: Correct. Roger A. Christianson I have no further questions. Redirect by Palmer Palmer: You testified... Officer Labarre: Do you mean do I double disk? Palmer: Yes, (laugh by everyone in room) Palmer: Do you have a normal..... 17 a2 -t al Officer Labarre: Normally 1 would pick a glass up with my right hand but because of the situation that I was in as an officer 1 think I may have used my left hand to leave my right hand free which is my weapon hand. Palmer: But you don't know for sure ... Officer Labarre: I don't recall. Palmer: As you were sitting you were facing the bar... Officer Labarre: Correct. Palmer: Okay. When you stood up... Officer Labarre: I stood up, I turned to my left, 1 kept the beer held out in front of ine approximately six inches to the best of my knowledge and walked straight out the door. Palmer: Did you deliberately wait for a time when you could see an employee? Officer Labarre: No. Palmer: Did you hide the beer? Officer Labarre: No. Palmer: Okay. Did you act like you were going to the bathroom... Roger A. Christianson Your honor these are misleading question and I object. Admin. Judge: Well, Mr. Christianson you, I am going to be pretty indulgent here. Go ahead, overruled. Palmer: Did you make any attempt...did you do anything unusual when you walked out of the bar? Officer Labarre: No. Pafiner: I have no further questions. Admin. Judge: Mr. Christianson, cross. Now you have your chance. Actually what I normally say during the hearing is I am pretty lenient about leading questions, however, the evidence is not in question. Evidence is what the witness says so I usually don't pay attention to what lawyers say. m oa,-�a.i Roger A. Christianson O�cer, it is true that the manner you described leaving the stool and heading out the door would not have been easy for the bartender to see what you had in your hand, would it? Officer Labarre: Correct. Roger A. Christianson This is the only time that you have been asked by the police departmenf to do fhis? Officer Labarre: No we were going to attempt it at the Trend bar but issues arose inside the bar instead. Roger A. Christianson You have never been asked to do anything further in the Western Avenue area. You are still in that area? Officer Labarre: Correct. Roger A. Christianson Would there have been anything, oh you already answered that question. I have nothing further. Palmer. I'm sorry. You said that it would not have been easy for the bartender to see? Officer Labarre: When I tarned, I took the bottle of beer in whichever hand and I turned with the beer and I started and went forward and got to the door and walked near the door my back would have been turned so if I had the beer in front of ine it would have made it difficult to see a beer, Palmer: Because you were walking away from the bar? Officer Labarre: Correct. Palmer: Would it have been difficult to see ... (unintelligible) Officer Labarre: Not at all. Palmer: Or to... (unintelligible) Officer Labarre: Not at all. Palmer: Was your other bottle still on the bar? Officer Labarre: No he took that one and gave me a new one. 19