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02-122�..+i\��i� Presented By Referred To CouncilFile# 03+ �� .. Crreen Sheet # l0 333 (p RESOLUTION CITY OF SAINT PAUL, NIINNESOTA Committee: Date �p 1 WHEREAS, adverse action was initiated against the Cigarette/Tobacco, Restaurant (B), 2 Liquor On-Sale, Sunday On-Sale Liquor, Malt Off-Sale and Gambling Location (C) licenses held 3 by Shaul Enterprises, Inc., d/b/a Herge's Baz for the premises located at 981 University Avenue 4 West in Saint Paul (License ID# 0019484) by the Office of LIEP far the violation of refusing 5 enhy to a police officer on June 23, 2001; and 7 WHEREAS, Licensee requested a hearing before an Administrative Law Judge, and a 8 hearing was held on December 13, 2001 before Administrative Law Judge Bruce Johnson, who 9 issued Findings of Fact, Conclusions and Recommendations dated December 17, 2001, in which 10 he determined that the Office of LIEP had sustained its burden of showing a violation; and 11 12 WHEREAS, the Report of the ALJ recommended that the City Council suspend the 13 licenses of Herge's Bar for fifteen days, which is the presuxnprive penalty recommended by Saint 14 Paul Legislative Code §409.26, but consider whether Herge's has solved the problem of 15 unauthorized persons locking its door from the inside in deciding whether to mitigate the 16 penalty; and 17 18 WHEREAS, Licensee has changed the method of locking the door to the parking lot, 19 which will prevent unauthorized persons from locking the door from the inside; now, therefore 20 be it 21 22 RESOLVED, that the Cigarette/Tobacco, Restaurant (B), Liquor On-Sale, Sunday On- 23 Sale Liquor, Malt Off-Sale and Gambling Location (C) licenses held by Shaul Enterprises, Inc., 24 d/b/a Herge's Bar for the premises located at 981 University Avenue West in Saint Paul (License 25 ID # 0019484) be suspended for a period of fifteen days for the violation of refusing enhy to a 26 police officer on June 23, 2001, with twelve of the days of suspension stayed for a period of 18 27 months on condition that there be no other violations during that period of time. The remaining 28 three-day suspension shall commence at one minute after midnight (12:01 a.m.) on Wednesday, 29 February 27, 2002 and continue through 11:58 p.m. on Friday, Mazch 1, 2002. 30 31 32 33 34 FURTHER RESOLVED, that the findings of fact and conclusions of law contained in the ALJ Report in this case dated December 17, 2001 are adopted as the written findings and conclusion of the Council in this matte 35 This Resolution is based on the record of the proceedings before the ALJ, including the 36 hearing on December 13, 2001, the documents and exhibits introduced therein, the findings of 37 fact and conclusions of law of the ALJ as referenced above and the arguments and statements of 38 the parties at the public hearing on January 23, 2002 and the deliberations of the Council in open 1 session at that hearing. 2 oi-�z� 3 A copy of this Resolution, as adopted, shall be sent by first class mail to the 4 Administrarive Law Judge and to the Licensee. 5 �� Requested by Department of: By: Form Approved by City for Submission to Council Adopted by Council: Date �ee.�,_ ��J �00 2.—. BY � � c Adoption Certified by Council Secretary Approved OFFICE OF LIEP Date: �- xoger curtis, Director February 4, Zoo2 . GREEN SHEET 266-9013 No .10 3 3 3 6 oa -�a a- ' 1 EPARThIENT DIRECIY)R 3 ITY COUNCIL � ITY A'CPORNEY ITY CLERK ust be on CounCil Agenda by: '°"'° E1' DIREC'11�R IN. & MGT. SVC. DSR. � �� ebr'uary 27, 2002 xox (OR ASSISTANP) ' TAL # OF SIGNATURE PAGES 1 (CLIP ALL LOCATIONS FOR SIGNATURE) � CTION REQUESTED: That the Cigarette/Tobacco, Restaurant (B), Liquor On-Sale, Sunday On-Sale Liquor, Malt Off Sale and Gambling Location (C) licenses held by Shaul Enterprises, Inc., d/b/a Herge's Bar for the premises located at 981 niversity Avenue West in Saint Pau1 (License ID #0019484) be suspended for a _ eriod of fifteen days for the violation of refusing entry to a police officer on une 23, 2002, with twelve of the days of suspension stayed for a period of 18 „ onths on condition that there be no other violations during that period of time. he remaining three-day suspension shall commence at one minute after midnight (12:01 AM) on Wednesday, February 27, 2002 and continue through 11:58 PM on Friday, March 1, 2002. CON�ENDATIONS: APPROVE (A) OR REJECT (R) ERSONAL SERVICE CONTRACTS MUST ANSWER TEQ: FOLIAWING: PLANNING WMMISSION CIVIL SERVICE COMMISSION Has the person/fixm ever worked undeY a contraCt for this depaztment? CIB COMMITTEE BUSINESS REVIEW COUNCIL YES NO e.+S. STAFF _ Has this person/firm ever been a City employee? ' ' � ' DISTRICT COURT YES NO �',��'� Does this person/firm possess a skill not nornially possessed by any �� ,�SUPPORTS WHICH COi1NCIL 0&JECTIVE? Current City employee? , YES NO �� lain all YE9 anawera on a aeparate sheet aad attach. INITIATING PROBLEM, ISSUE, OPPORTUNITY (Who, What, When, Where, Why): Adverse action was initiated after police officers were denied entry'into Herge's Bar . t approximately 11:30 p:m. on June 23, 2001 after announcing their presence nd.knocking loudly on the door for over a minute. Licensee requested a hearing efore an Administrative Law Judge, and a hearing was held on December 13, 2001 efore Administrative Law Judge Bruce Johnson, who issued Findings of Fact, onclusions and Recommendations dated December 17, 2001 in which he determined . that the Office of LIEP had sustained its burden of showing a violation. The � LJ recommended consideration into whether Herge's has solved the problem of , nauthorized persons locking its door from the inside in deciding whether to . stay part of the penalty and licensee has changed the method of.locking the � doo,r to the parking lot, which will prevent.unauthorized persons from locking ' the door in the future. ^ VANTAGES IF APPROVED: Compliance with Saint Paul City policy. ' ISADVANTAGES IF APPROVED: ISADVANTAGES IF NOT APPROVED: On-sale liquor establishments will no longer , rovide,entry to police. OTAL AMOUNT OF TRANSACTION S COST/REVENUE BUDGETED YES NO , FUNDING SOURCE ACTIVITY NUMBER FINANCIAL INFORMATION: (EXPLAIN) r. s C.� iD � LUUC oa -1 a'Z CITY OF SAINT PAUL Rrzrsdy C, iCetly, Ylayor January 23, 2dQ2 REF: Herges Bar 98l W. University Ave. DEPARTMENT OF POLTCE A'iltiam K. Finney, Lhrefo,FPutice IfiOE. Eieventh. Snee7 Tetephone: 651-291-1?II SY. Pau1, Minriesata SSi01 Facsimile: 651-292-3i11 t?n 1/23102 I conducted a premise check at Herges Bar 9$1 W. Universit�r Ave. at the request af Wayne Milter the manager. At issue was a LIEP case against Herges for hving a door locked which grevented oYficers from following up on a narcotics complaint. I checked all of the entrances t� the bar and noted that the locks have in fact been changed since the night in questian. The Universiry Ave. entrance now has onFy a p�nic bar lack which can not be locked except �vith a key. The paridng Iot door now has a keyed Iock that wouId prevent anyone other than an emgloyee of the baz from tocking out affic°rs. In ad@ition I would Iike eo add that the �Jestern Disuict has met reg�:larly with the management of Herges in regards to complaints from the neighborhood about illegai activity near his business. Herges is one af the few liquor establishment on University Ave. that employs security staff both in and outside of tIie bar so that lliegal activit,� outside of the estabIishment is deterred and or removed. To my knowledge we have had no complaints of narcotics activity inside the bar. We have received complaints on Herges parking lot, but you sfiouid nate that ihis is a shared space that many use as a pass through the area. Herges management has also met with the Vice Unit and my offica in an effart to �etp eliminate prostitution complaints near the bar. I clasing it appaars that the changes to the locks and the continuation of the security azrangements that Herges has already completed will prevent a re-occurrenae of che l�ck out of officers that occurred. Hetges has and continues to support the police efforts to rid the area of iltegal activiry. Yours Tru:y William IC. Finney Chief of Police S � G . � SfC J M. Hazrington tiVes rn District nn q±/rmrrrrve.ernvn equq! pypartunLy Emp{py¢r o� �aa. OFFICE OF THE CITY ATTORNEY Clayto� M. Robinson, Jc, CiryAttorney _ 35 - CITY OF SAINT PAUL c;�iD,, NormCo(eman,Mayor 400CiryHa71 Telephone:651266-8710 �, ISWUiKellaggBlvd. Fatsimile:651298-56/9 Saint Paul, Minrsuota SS1Q2 i s� r.�'t 'o.� =•'•:, " ��a r �y`'' ='- December 21, 2001 z �„�� k E .� �, �� t`u�- � �, � NOTICE OF COUNCIL HEARING Wayne Miller Herge's Bar 981 UniversityAvenue West 5aint Paul, Minnesota 55104 RE: All licenses heid by Shaul Entexprises, Inc., d/b/a Herge's Baz for the premises located at 981 West University Avenue in Saint Paul License ID #: 19484 Dear Mr. Miller: Please take notice that a hearing on the report of the Administrative Law Judge conceming the above-mentioned violation has been scheduled for 5:30 p.m., 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 azgument 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, � �� Virginia D. Palmer Assistant CityAttorney 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 55103-1644 Johnny Howard, Exec. Director, Thomas Dale Block Clubs, 1034 Lafond Ave., St. Paul, MN 55104 oa,-i� STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 R�CE��1�� December 17, 2001 DEC 1 9 2Gt�1 GITY ATTORNEY Fred Owusu, City Cierk City of St. Paul i70 City Hall 15 West Kellogg Blvd. St. Paul, MN 55102 R�CE11/Ep D E t; , CITY ATTpRNEY RE: In the Matter of all Licenses held by Shaul Enterprises, Inc., d/b/a Herge's Bar for the premises located at 981 West University Avenue in St. Paul License ID #19484; OAH Docket No. 4-6020-14589-3 Dear Mr. Owusu: Enclosed herewith and served upon you by mail is the Administrative Law Judge's Findings of Fact, Conclusions and Recommendation in the above-entitled matter. Aiso enclosed is the official record, with the exception of the tape recording of the hearing. If you wouid like a copy of the tape, please contact our office in writing or telephone 341-7448. Our file in this matter is now being closed. Sincerely, '�1JL�-�Q !tt', � . BRUCE H. JOHNSON Administrative Law Judge Telephone: 612/341-7666 BHJ:osb Encs. cc: Virginia D. Palmer, Assistant City Attorney Wayne Miller 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 o�.-� aa OAH Docket No. 4-6020-14589-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE ST. PAUL CITY COUNCIL In the Matter of all Licenses held by Shaul Enterprises, Inc., d/b/a Herge's Barfor the premises iocaied at &8 i i�Vesi University Avenue in St. Paul License ID # 19484 FINDINGS OF FACT, CONCLUSIONS AND REL��i��v��itia�� i ivi�u Administrative Law Judge Bruce H. Johnson conducted a hearing in this matter beginning at 9:30.m. on Thursday, December 13, 2001, in Room 41-A, St. Paul City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota. Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102, represented the City of St. Paul (the City) at the hearing. The Licensee, Shaul Enterprises, Inc., d/b/a Herge's Bar, was represented by its manager, Wayne Miller, and its owner, William Henthorne. The record closed on December 13, 2001, at the close of the hearing. This Report is a recommendation, not a final decision. The City Council of the City of St. Paui will make the final decision after reviewing the hearing record. The Council may adopt, reject or modify these Findings of Fact, Conciusions, and Recommendations. Under the City's Legislative Code,' the Council will not make its rinai ciecision untii af'ter if has provided the licensee an opportunity to present oral or written arguments alleging error on the part of the Administrative Law Judge in the application of the law or interpretation of the facts and 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). (Unless othenvise specified, ali references to that code are to the 2001 edition.) oa- i a a. STATEMENT OF THE ISSUES � (1) Whether or not on the evening of June 23, 2001, at about 11:30 p.m., a time when Herge's Bar was open to the public, it was at the same time not open to inspection and examination by City of St. Paul police officers in violation of the St. Paul Legislative Code; and (2) If so, what, if any, adverse action the St. Paui City Council should take against any licenses or permits issued to Herge's Bar. Based upon the record in this matter, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. Shaul Enterprises, Inc., doing business as Herge's Bar, (Herge's Bar or Herge's) is a Minnesota corporation that has owned and operated a bar located at 981 West University Avenue in St. Paul, Minnesota, for at least twenty-six and one-half years. The business itself has been in operation since 1933." Herge's Bar holds several licenses issued by the City, including an on- sale liquor license that will expire on January 7, 2003. 2. Herge's is located in what is known as the Frogtown area of St. Paul, which is part of the St. Paul Police Department's Western District patrol area. During the spring of 2009, that patrol o�ce was conducting operations to curtail drug activity in Frogtown, including the vicinity of Herge's Bar. The police had reason to believe that some of that illegal drug activity was being carried on by persons who patronized Herge's Bar,' since undercover police officers had recently made drug buys in the bar's west parking lot. 3. On the evening of June 23, 2001, at approximately 11:30 p.m., Officers Timothy Bohn and Craig Rhode were on routine patrol in Frogtown when they decided to go fo Herge's Bar to conduct a routine drug check. As they 2 St. Paul Legislative Code, section 310.12. 3 Testimony of Wayne Miller. ° Id. 5 Exhibit 1. 6 Testimony of Officer Timothy Bohn. ' Id.; The ALJ wishes to make clear that there was no evidence in the record suggesting that any of the owners or employees of Herge's Bar have ever been involved in illegal drug activity. 8 Exhibit 2. 9 Testimony of Officers Timothy Bohn and Craig Rhode. 6� oa -- r aa turned off University Avenue into Herge's west parking lot, they saw three males congregating near the bars west entrance, The o�cers immediately got ou# of their squad car and approached the men. As the officers approached, one of the group yelled "Police! Get the door! Get the door!" One of the men entered Herge's Bar by the west door, and the officers attempted to foliow him. But when they arrived at the door, fhey found it locked." 4. The west door at Herge's is made of heavy gauge steef. It has two keyed locks, both requiring keys to lock or unlock the door from the outside but with "flip locks," or mechanisms that enabled anyone without a key to lock or unlock the door, on the inside. Herge's installed his locking arrangement in about 1998 when the St. Paul fire marshal directed the bar to install fire exit notices and either flip locks or panic bars on all of its exterior doors. 5. Upon finding the west door to the bar locked, Officer Bohn loudly announced "St. Paul Police! Open up!" And began pounding the door with his hand. When there was no immediate response, Officer Bohn continued calling out and began pounding on the door with the handle of his flashlight, again with no response. Finally, after Officer Bohn had been pounding and calling out for more than a minute, a customer leaving the premises opened the door, and the o�cers were able to gain entry. 6. As the officers entered through the west door, they immediately encountered a short hallway to the right leading to a men's rest room. The delay in the officers' ability to gain entry was sufficiently long to enable the individual who had previously entered through the west door to dispose of contraband in the men's room toilet before the officers were able to enter.t 7. Upon entry, the officers saw the bar's security guard standing at fhe end of a fonger haff a6out eighteen feet from the west door.' The guard was normally stationed there to check customers' identifications before allowing them into the bar area." The officers then proceeded through a long hali to where the security guard and bartender were located. There were between twelve to 10 See Exhibit A. " Testimony of Officer Timothy Bohn; Exhibit 2. 12 Testimony of O�cer Craig Rhode; Exhibits D, G, and H. 13 An exception was later made for the east door of the establishment, which opens to the inside and not to the outside. The fire marshal subsequently allowed a lock keyed for the inside of the door. '^ See Exhibits A, G, D, and H. t5 Testimony of Officer Timothy Bohn. is Id. "Testimony of Wayne Miller. 1 e Testimony of O�cers Timothy Bohn and Craig Rhode; see also Exhibit G. -3- o�-� a� twenty customers in the bar, and music was being played on the juke box. But the noise was not so loud that someone pounding on the west door could not be heard. 8. Officer Bohn asked the security guard if he had heard them caliing out and knocking and asked why he did not open the door. The security guard did not indicate whether or not he had heard the officers and gave no explanation for not opening the door. Officer Bohn also asked the bartender why the west door had been locked, but the bartender was unable to give any explanation. 20 Upon examination, O�cer Bohn was unable to open the south door to the bar, even though it was equipped with a panic bar.Z' 9. After looking around the bar for a few minutes, the officers were unable to detect ar,y evidenc� of illegai drug acti�iity, a_nd ths�� !eft the bar.Z Officers Bohn and Rhode subsequently filed a police report about the incident.Z 10. Christine Rozek is the Deputy Director of the St. Paul Department of License Inspection and Environmental Protection. Her duties include reviewing police reports for possible code violations by the City's Iicensees. She reviewed the police report filed by O�cers Bohn and Rhode about the incident that occurred at Herge's Bar on the evening of June 23, 2001. Concluding that a possible violation of the St. Paul Legislative Code had occurred, Ms. Rozek forvvarded the matter to the St. Paul City Attorney's Office.Zs 11. On September 19, 2001, the St. Paul City Attomey's O�ce issued a Notice of Violation to Herge's Bar. Herge's Bar subsequently requested a hearing on the violation, as aliowed by the St. Paul Legislative Code, and this proceeding ensued. 12. The City has maintained a longstanding interpretation of the presumptive penalty provisions of section 409.26 (b) of the St. Paul Legislative Code. That interpretation is that a subsequent violation of any of the provisions �s Id. 20 Testimony of Officer Timothy Bohn. zi Id. zz Id. 23 Exhibit 2. 24 Testimony of Christine Rozek. zs /d. 26 Exhibit 3. 27 St. Paui Legislative Code, section 310.05. � oa-�aa, described in subsections (1) through (12) qualifies as a subsequent violation of any other subsections. 13. Prior to June 23, 2001, Herge's Bar committed one other violation of the provisions of the St. Paul Legislative Code, namely, seliing alcoholic beverages to an underage person. For that offense, it received a$500.00 fine pursuant to section 409.26 (b)(3) of fhe St. Paul Legislative Code. 14. These Findings are based on ail of the evidence in the record. Citations to portions of the record are not intended to be exclusive references. 15. The Administrative Law Judge adopts as Findings any Conclusions that are more appropriately described as Findings. 16. 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 Herge's Bar has violated provisions of the St. Paul Legislative Code, and to make findings, conciusions, and recommendations or orders on that subject, as the case may be. 2. The City gave Herge's Bar 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. 3. The St. Paul Legislative Code contai!?s the following regulation pertaining to holders of licenses issued by the City: The premises, facilities, place, device or anything named in any license issued pursuant to any provision of the Saint Paui Legislative Code or other law shall at all times while open to the public or while being used or occupied for any purpose be open aiso to inspection and examination by any police, fire, or health 28 Testimony of Christine Rozek. 29 Minnesota Statutes, section 14.50, and section 340A.503. -5- oa-� aa officer or any building inspector of the city, as weil as the inspector. 4. The City has the burden of proving that Herge's Bar violated provisions of the St. Paul Legislative Code that require the bar to keep its premises open for inspection and examination by police officers, among other officials. The City met that burden in this proceeding. 5. On the evening of June 23, 2001, at approximately 11:30 p.m., the premises of Herge's Bar were open to the public, but those premises were nof also open to inspection and examination by two St. Paui police officers who were then conducting an investigation into possible illegal drug activity by one or more of the customers of Herge's Bar. 6. 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 Iicense. 7. The City's longstanding interpretations of ordinances that its Council has adopted are entitied to some deference. And its interpretation that Herge's previous violation of the ordinance prohibiting sale of alcohol to underage persons constitutes a first appearance for purposes of determining the presumptive penalty for the instant offense is a reasonable and correct interpretation of Section 409.26 (b) of the St. Paul Legislative Code. Prior offenses of any of the ordinances described in Section 409.26 (b) therefore constitute prior appearances for purposes of determining the presumptive per�alty in this proceeding. 8. The presumptive penalty here is suspension of the licenses issued to Herge's Bar for a period of fifteen (15) days. 9. Section 409.26(a) of St. Paui Legislative Code provides that: ao St. Paul Legislative Code, section 310.12. 3t St. Paul Legislative Code, Section 310.06(a). ' St. Paul Legislative Code, Section 310.01. 33 See Lollong v. Midwest Patrol, 545 N.W2d 372, 375 (Minn. 1996). 34 St. Paul Legislative Code, Section 409.26 (b)(7). � oa-�aa 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 revocafions, and shall apply to all on-sale and off-sale licensed premises for both intoxicating tiquor 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 and compelling reasons making it more appropriafe to do so. When deviating from these standards, the council shal� provide written reasons that specify why the penalty selected was more appropriate. 7. The Administrative Law Judge adopts as Conclusions any Findings that ar� more appropriately u�escribed as Conclusiors. 8. 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: RECOMMENDATION The Administrative Law Judge respectfully recommends that the St. Paul City Council suspend the licenses of Herge's Bar for fifteen (15) days but consider effective action by Herge's to solve the problem of unauthorized persons locking its west door from the inside in deciding whether to mitigate that penalry Dated this 17th day of December 2001. gRUCE H. JOHNS Administrative Law de c�a-i aa MEMORANDUM The parties largely agree about what most likely happened at Herge's on the evening of June 23, 2001: Illegal drug activity had taken place in Herge's western parking lot on previous occasions. That prompted Officers Bohn and Rhode to conduct a routine drug check there on the evening in question. When they arrived, they saw three or four men congregating near the bar's west door, giving rise to a suspicion that illegal drug activity was taking place. As the officers approached the men, one of inen said, "Po(ice! Get the door! Get the door!," and another entered the bar through the west door and locked it from the inside, using one or both of the flip locks. It is more probabie than not that the individual who locked the door then went into the adjacent men's rest room and disposed of illegal drugs by flushing them down the toilet. Meanwhile, unable to enter the bar through the wesi do�r, Officer Bohn loudly announced "St. Paul Police! Open up!" and began pounding on it with both his fist and his flashlight. At the time, the bartender and security guard, who were at least eighteen feet away from the west door, were likely distracted by something else and did not notice Officer Bohn's calis to open up the door or his pounding. A minute or so later, a bar customer unlocked the west door from the inside, and the officers were able to enter the premises. When they entered, they were not able to see any evidence of illegal drug activity. Herge's argues that the evidence establishes that none of its employees were directly involved with barring the officers entry into the premises, and that it should not be responsible for something that one of its customers did. At a minimum, it argues that these facts justify mitigation of the presumptive penalty. On the other hand, the City essentially argues that even though the violation lasted only for a about a minute, it was a material one because it impeded two police officers from conducting a drug investigation. The City further argues that no substantial or compelling reasons exist under section 409.26(a) of the St. Paul Legislative Code to warrant deviation from the presumptive penalty. The ALJ notes that the ordinance in question requires neither a showing of intent to prevent entry, nor does it iimit ifability where ciosure of the premises to inspection was caused by someone other than the licensee, its agents, or its employees. In other words, what happened here technicaily falis within the prohibitions of the ordinance. But in the ALJ's view, what happened here was not merely a technical violation of the ordinance. Ready access to an adjacent men's rest room for persons using the bar's west door and the ability to easily lock that door from the inside make the parking lot outside the door an ideal venue for conducting illegal drug activity. It becomes extremely easy for persons engaged in such activity to 35 St. Paul Legislative Code, section 310.12. � oa-iaa dispose of incriminating evidence at the first hint that the authorities may be nearby. In fact, the evidence established that the parking lot in question had been used as a site for drug trafficking on more than one occasion before this incident occurred. Until something is done to prevent unauthorized persons from locking the west door from the inside, there is a substantial likelihood that the adjacent parking lot will again be used for drug transactions. Put another way, there remains a risk that what happened on the evening of June 23, 2001, will happen again. And this should concern Herge's as much as it concerns the St. Paul Police Department because it would put Herge's licenses further at risk. Mr. Miller testified that the flip locks on the inside of west door were placed there about three years ago at the insistence of the St. Paul fire marshal. But reconciling the fire marshal's concerns with those of the police department is Herge's responsibil�ty. And there v�:as reaii; no t�eco�d made in this �roceeding about alternative technological solutions or staffing solutions. The ALJ therefore recommends that the Council impose the presumptive penalty of fifteen (15) days suspension. The Council may wish, however, to give Herge's the opportunity to demonstrate that it has found and impiemented an effective solution to the problem of unauthorized persons locking the west door from the inside. And upon clear demonstration of such a solution, the Council may wish to consider mitigating the presumptive penalty. I� � �..+i\��i� Presented By Referred To CouncilFile# 03+ �� .. Crreen Sheet # l0 333 (p RESOLUTION CITY OF SAINT PAUL, NIINNESOTA Committee: Date �p 1 WHEREAS, adverse action was initiated against the Cigarette/Tobacco, Restaurant (B), 2 Liquor On-Sale, Sunday On-Sale Liquor, Malt Off-Sale and Gambling Location (C) licenses held 3 by Shaul Enterprises, Inc., d/b/a Herge's Baz for the premises located at 981 University Avenue 4 West in Saint Paul (License ID# 0019484) by the Office of LIEP far the violation of refusing 5 enhy to a police officer on June 23, 2001; and 7 WHEREAS, Licensee requested a hearing before an Administrative Law Judge, and a 8 hearing was held on December 13, 2001 before Administrative Law Judge Bruce Johnson, who 9 issued Findings of Fact, Conclusions and Recommendations dated December 17, 2001, in which 10 he determined that the Office of LIEP had sustained its burden of showing a violation; and 11 12 WHEREAS, the Report of the ALJ recommended that the City Council suspend the 13 licenses of Herge's Bar for fifteen days, which is the presuxnprive penalty recommended by Saint 14 Paul Legislative Code §409.26, but consider whether Herge's has solved the problem of 15 unauthorized persons locking its door from the inside in deciding whether to mitigate the 16 penalty; and 17 18 WHEREAS, Licensee has changed the method of locking the door to the parking lot, 19 which will prevent unauthorized persons from locking the door from the inside; now, therefore 20 be it 21 22 RESOLVED, that the Cigarette/Tobacco, Restaurant (B), Liquor On-Sale, Sunday On- 23 Sale Liquor, Malt Off-Sale and Gambling Location (C) licenses held by Shaul Enterprises, Inc., 24 d/b/a Herge's Bar for the premises located at 981 University Avenue West in Saint Paul (License 25 ID # 0019484) be suspended for a period of fifteen days for the violation of refusing enhy to a 26 police officer on June 23, 2001, with twelve of the days of suspension stayed for a period of 18 27 months on condition that there be no other violations during that period of time. The remaining 28 three-day suspension shall commence at one minute after midnight (12:01 a.m.) on Wednesday, 29 February 27, 2002 and continue through 11:58 p.m. on Friday, Mazch 1, 2002. 30 31 32 33 34 FURTHER RESOLVED, that the findings of fact and conclusions of law contained in the ALJ Report in this case dated December 17, 2001 are adopted as the written findings and conclusion of the Council in this matte 35 This Resolution is based on the record of the proceedings before the ALJ, including the 36 hearing on December 13, 2001, the documents and exhibits introduced therein, the findings of 37 fact and conclusions of law of the ALJ as referenced above and the arguments and statements of 38 the parties at the public hearing on January 23, 2002 and the deliberations of the Council in open 1 session at that hearing. 2 oi-�z� 3 A copy of this Resolution, as adopted, shall be sent by first class mail to the 4 Administrarive Law Judge and to the Licensee. 5 �� Requested by Department of: By: Form Approved by City for Submission to Council Adopted by Council: Date �ee.�,_ ��J �00 2.—. BY � � c Adoption Certified by Council Secretary Approved OFFICE OF LIEP Date: �- xoger curtis, Director February 4, Zoo2 . GREEN SHEET 266-9013 No .10 3 3 3 6 oa -�a a- ' 1 EPARThIENT DIRECIY)R 3 ITY COUNCIL � ITY A'CPORNEY ITY CLERK ust be on CounCil Agenda by: '°"'° E1' DIREC'11�R IN. & MGT. SVC. DSR. � �� ebr'uary 27, 2002 xox (OR ASSISTANP) ' TAL # OF SIGNATURE PAGES 1 (CLIP ALL LOCATIONS FOR SIGNATURE) � CTION REQUESTED: That the Cigarette/Tobacco, Restaurant (B), Liquor On-Sale, Sunday On-Sale Liquor, Malt Off Sale and Gambling Location (C) licenses held by Shaul Enterprises, Inc., d/b/a Herge's Bar for the premises located at 981 niversity Avenue West in Saint Pau1 (License ID #0019484) be suspended for a _ eriod of fifteen days for the violation of refusing entry to a police officer on une 23, 2002, with twelve of the days of suspension stayed for a period of 18 „ onths on condition that there be no other violations during that period of time. he remaining three-day suspension shall commence at one minute after midnight (12:01 AM) on Wednesday, February 27, 2002 and continue through 11:58 PM on Friday, March 1, 2002. CON�ENDATIONS: APPROVE (A) OR REJECT (R) ERSONAL SERVICE CONTRACTS MUST ANSWER TEQ: FOLIAWING: PLANNING WMMISSION CIVIL SERVICE COMMISSION Has the person/fixm ever worked undeY a contraCt for this depaztment? CIB COMMITTEE BUSINESS REVIEW COUNCIL YES NO e.+S. STAFF _ Has this person/firm ever been a City employee? ' ' � ' DISTRICT COURT YES NO �',��'� Does this person/firm possess a skill not nornially possessed by any �� ,�SUPPORTS WHICH COi1NCIL 0&JECTIVE? Current City employee? , YES NO �� lain all YE9 anawera on a aeparate sheet aad attach. INITIATING PROBLEM, ISSUE, OPPORTUNITY (Who, What, When, Where, Why): Adverse action was initiated after police officers were denied entry'into Herge's Bar . t approximately 11:30 p:m. on June 23, 2001 after announcing their presence nd.knocking loudly on the door for over a minute. Licensee requested a hearing efore an Administrative Law Judge, and a hearing was held on December 13, 2001 efore Administrative Law Judge Bruce Johnson, who issued Findings of Fact, onclusions and Recommendations dated December 17, 2001 in which he determined . that the Office of LIEP had sustained its burden of showing a violation. The � LJ recommended consideration into whether Herge's has solved the problem of , nauthorized persons locking its door from the inside in deciding whether to . stay part of the penalty and licensee has changed the method of.locking the � doo,r to the parking lot, which will prevent.unauthorized persons from locking ' the door in the future. ^ VANTAGES IF APPROVED: Compliance with Saint Paul City policy. ' ISADVANTAGES IF APPROVED: ISADVANTAGES IF NOT APPROVED: On-sale liquor establishments will no longer , rovide,entry to police. OTAL AMOUNT OF TRANSACTION S COST/REVENUE BUDGETED YES NO , FUNDING SOURCE ACTIVITY NUMBER FINANCIAL INFORMATION: (EXPLAIN) r. s C.� iD � LUUC oa -1 a'Z CITY OF SAINT PAUL Rrzrsdy C, iCetly, Ylayor January 23, 2dQ2 REF: Herges Bar 98l W. University Ave. DEPARTMENT OF POLTCE A'iltiam K. Finney, Lhrefo,FPutice IfiOE. Eieventh. Snee7 Tetephone: 651-291-1?II SY. Pau1, Minriesata SSi01 Facsimile: 651-292-3i11 t?n 1/23102 I conducted a premise check at Herges Bar 9$1 W. Universit�r Ave. at the request af Wayne Milter the manager. At issue was a LIEP case against Herges for hving a door locked which grevented oYficers from following up on a narcotics complaint. I checked all of the entrances t� the bar and noted that the locks have in fact been changed since the night in questian. The Universiry Ave. entrance now has onFy a p�nic bar lack which can not be locked except �vith a key. The paridng Iot door now has a keyed Iock that wouId prevent anyone other than an emgloyee of the baz from tocking out affic°rs. In ad@ition I would Iike eo add that the �Jestern Disuict has met reg�:larly with the management of Herges in regards to complaints from the neighborhood about illegai activity near his business. Herges is one af the few liquor establishment on University Ave. that employs security staff both in and outside of tIie bar so that lliegal activit,� outside of the estabIishment is deterred and or removed. To my knowledge we have had no complaints of narcotics activity inside the bar. We have received complaints on Herges parking lot, but you sfiouid nate that ihis is a shared space that many use as a pass through the area. Herges management has also met with the Vice Unit and my offica in an effart to �etp eliminate prostitution complaints near the bar. I clasing it appaars that the changes to the locks and the continuation of the security azrangements that Herges has already completed will prevent a re-occurrenae of che l�ck out of officers that occurred. Hetges has and continues to support the police efforts to rid the area of iltegal activiry. Yours Tru:y William IC. Finney Chief of Police S � G . � SfC J M. Hazrington tiVes rn District nn q±/rmrrrrve.ernvn equq! pypartunLy Emp{py¢r o� �aa. OFFICE OF THE CITY ATTORNEY Clayto� M. Robinson, Jc, CiryAttorney _ 35 - CITY OF SAINT PAUL c;�iD,, NormCo(eman,Mayor 400CiryHa71 Telephone:651266-8710 �, ISWUiKellaggBlvd. Fatsimile:651298-56/9 Saint Paul, Minrsuota SS1Q2 i s� r.�'t 'o.� =•'•:, " ��a r �y`'' ='- December 21, 2001 z �„�� k E .� �, �� t`u�- � �, � NOTICE OF COUNCIL HEARING Wayne Miller Herge's Bar 981 UniversityAvenue West 5aint Paul, Minnesota 55104 RE: All licenses heid by Shaul Entexprises, Inc., d/b/a Herge's Baz for the premises located at 981 West University Avenue in Saint Paul License ID #: 19484 Dear Mr. Miller: Please take notice that a hearing on the report of the Administrative Law Judge conceming the above-mentioned violation has been scheduled for 5:30 p.m., 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 azgument 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, � �� Virginia D. Palmer Assistant CityAttorney 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 55103-1644 Johnny Howard, Exec. Director, Thomas Dale Block Clubs, 1034 Lafond Ave., St. Paul, MN 55104 oa,-i� STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 R�CE��1�� December 17, 2001 DEC 1 9 2Gt�1 GITY ATTORNEY Fred Owusu, City Cierk City of St. Paul i70 City Hall 15 West Kellogg Blvd. St. Paul, MN 55102 R�CE11/Ep D E t; , CITY ATTpRNEY RE: In the Matter of all Licenses held by Shaul Enterprises, Inc., d/b/a Herge's Bar for the premises located at 981 West University Avenue in St. Paul License ID #19484; OAH Docket No. 4-6020-14589-3 Dear Mr. Owusu: Enclosed herewith and served upon you by mail is the Administrative Law Judge's Findings of Fact, Conclusions and Recommendation in the above-entitled matter. Aiso enclosed is the official record, with the exception of the tape recording of the hearing. If you wouid like a copy of the tape, please contact our office in writing or telephone 341-7448. Our file in this matter is now being closed. Sincerely, '�1JL�-�Q !tt', � . BRUCE H. JOHNSON Administrative Law Judge Telephone: 612/341-7666 BHJ:osb Encs. cc: Virginia D. Palmer, Assistant City Attorney Wayne Miller 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 o�.-� aa OAH Docket No. 4-6020-14589-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE ST. PAUL CITY COUNCIL In the Matter of all Licenses held by Shaul Enterprises, Inc., d/b/a Herge's Barfor the premises iocaied at &8 i i�Vesi University Avenue in St. Paul License ID # 19484 FINDINGS OF FACT, CONCLUSIONS AND REL��i��v��itia�� i ivi�u Administrative Law Judge Bruce H. Johnson conducted a hearing in this matter beginning at 9:30.m. on Thursday, December 13, 2001, in Room 41-A, St. Paul City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota. Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102, represented the City of St. Paul (the City) at the hearing. The Licensee, Shaul Enterprises, Inc., d/b/a Herge's Bar, was represented by its manager, Wayne Miller, and its owner, William Henthorne. The record closed on December 13, 2001, at the close of the hearing. This Report is a recommendation, not a final decision. The City Council of the City of St. Paui will make the final decision after reviewing the hearing record. The Council may adopt, reject or modify these Findings of Fact, Conciusions, and Recommendations. Under the City's Legislative Code,' the Council will not make its rinai ciecision untii af'ter if has provided the licensee an opportunity to present oral or written arguments alleging error on the part of the Administrative Law Judge in the application of the law or interpretation of the facts and 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). (Unless othenvise specified, ali references to that code are to the 2001 edition.) oa- i a a. STATEMENT OF THE ISSUES � (1) Whether or not on the evening of June 23, 2001, at about 11:30 p.m., a time when Herge's Bar was open to the public, it was at the same time not open to inspection and examination by City of St. Paul police officers in violation of the St. Paul Legislative Code; and (2) If so, what, if any, adverse action the St. Paui City Council should take against any licenses or permits issued to Herge's Bar. Based upon the record in this matter, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. Shaul Enterprises, Inc., doing business as Herge's Bar, (Herge's Bar or Herge's) is a Minnesota corporation that has owned and operated a bar located at 981 West University Avenue in St. Paul, Minnesota, for at least twenty-six and one-half years. The business itself has been in operation since 1933." Herge's Bar holds several licenses issued by the City, including an on- sale liquor license that will expire on January 7, 2003. 2. Herge's is located in what is known as the Frogtown area of St. Paul, which is part of the St. Paul Police Department's Western District patrol area. During the spring of 2009, that patrol o�ce was conducting operations to curtail drug activity in Frogtown, including the vicinity of Herge's Bar. The police had reason to believe that some of that illegal drug activity was being carried on by persons who patronized Herge's Bar,' since undercover police officers had recently made drug buys in the bar's west parking lot. 3. On the evening of June 23, 2001, at approximately 11:30 p.m., Officers Timothy Bohn and Craig Rhode were on routine patrol in Frogtown when they decided to go fo Herge's Bar to conduct a routine drug check. As they 2 St. Paul Legislative Code, section 310.12. 3 Testimony of Wayne Miller. ° Id. 5 Exhibit 1. 6 Testimony of Officer Timothy Bohn. ' Id.; The ALJ wishes to make clear that there was no evidence in the record suggesting that any of the owners or employees of Herge's Bar have ever been involved in illegal drug activity. 8 Exhibit 2. 9 Testimony of Officers Timothy Bohn and Craig Rhode. 6� oa -- r aa turned off University Avenue into Herge's west parking lot, they saw three males congregating near the bars west entrance, The o�cers immediately got ou# of their squad car and approached the men. As the officers approached, one of the group yelled "Police! Get the door! Get the door!" One of the men entered Herge's Bar by the west door, and the officers attempted to foliow him. But when they arrived at the door, fhey found it locked." 4. The west door at Herge's is made of heavy gauge steef. It has two keyed locks, both requiring keys to lock or unlock the door from the outside but with "flip locks," or mechanisms that enabled anyone without a key to lock or unlock the door, on the inside. Herge's installed his locking arrangement in about 1998 when the St. Paul fire marshal directed the bar to install fire exit notices and either flip locks or panic bars on all of its exterior doors. 5. Upon finding the west door to the bar locked, Officer Bohn loudly announced "St. Paul Police! Open up!" And began pounding the door with his hand. When there was no immediate response, Officer Bohn continued calling out and began pounding on the door with the handle of his flashlight, again with no response. Finally, after Officer Bohn had been pounding and calling out for more than a minute, a customer leaving the premises opened the door, and the o�cers were able to gain entry. 6. As the officers entered through the west door, they immediately encountered a short hallway to the right leading to a men's rest room. The delay in the officers' ability to gain entry was sufficiently long to enable the individual who had previously entered through the west door to dispose of contraband in the men's room toilet before the officers were able to enter.t 7. Upon entry, the officers saw the bar's security guard standing at fhe end of a fonger haff a6out eighteen feet from the west door.' The guard was normally stationed there to check customers' identifications before allowing them into the bar area." The officers then proceeded through a long hali to where the security guard and bartender were located. There were between twelve to 10 See Exhibit A. " Testimony of Officer Timothy Bohn; Exhibit 2. 12 Testimony of O�cer Craig Rhode; Exhibits D, G, and H. 13 An exception was later made for the east door of the establishment, which opens to the inside and not to the outside. The fire marshal subsequently allowed a lock keyed for the inside of the door. '^ See Exhibits A, G, D, and H. t5 Testimony of Officer Timothy Bohn. is Id. "Testimony of Wayne Miller. 1 e Testimony of O�cers Timothy Bohn and Craig Rhode; see also Exhibit G. -3- o�-� a� twenty customers in the bar, and music was being played on the juke box. But the noise was not so loud that someone pounding on the west door could not be heard. 8. Officer Bohn asked the security guard if he had heard them caliing out and knocking and asked why he did not open the door. The security guard did not indicate whether or not he had heard the officers and gave no explanation for not opening the door. Officer Bohn also asked the bartender why the west door had been locked, but the bartender was unable to give any explanation. 20 Upon examination, O�cer Bohn was unable to open the south door to the bar, even though it was equipped with a panic bar.Z' 9. After looking around the bar for a few minutes, the officers were unable to detect ar,y evidenc� of illegai drug acti�iity, a_nd ths�� !eft the bar.Z Officers Bohn and Rhode subsequently filed a police report about the incident.Z 10. Christine Rozek is the Deputy Director of the St. Paul Department of License Inspection and Environmental Protection. Her duties include reviewing police reports for possible code violations by the City's Iicensees. She reviewed the police report filed by O�cers Bohn and Rhode about the incident that occurred at Herge's Bar on the evening of June 23, 2001. Concluding that a possible violation of the St. Paul Legislative Code had occurred, Ms. Rozek forvvarded the matter to the St. Paul City Attorney's Office.Zs 11. On September 19, 2001, the St. Paul City Attomey's O�ce issued a Notice of Violation to Herge's Bar. Herge's Bar subsequently requested a hearing on the violation, as aliowed by the St. Paul Legislative Code, and this proceeding ensued. 12. The City has maintained a longstanding interpretation of the presumptive penalty provisions of section 409.26 (b) of the St. Paul Legislative Code. That interpretation is that a subsequent violation of any of the provisions �s Id. 20 Testimony of Officer Timothy Bohn. zi Id. zz Id. 23 Exhibit 2. 24 Testimony of Christine Rozek. zs /d. 26 Exhibit 3. 27 St. Paui Legislative Code, section 310.05. � oa-�aa, described in subsections (1) through (12) qualifies as a subsequent violation of any other subsections. 13. Prior to June 23, 2001, Herge's Bar committed one other violation of the provisions of the St. Paul Legislative Code, namely, seliing alcoholic beverages to an underage person. For that offense, it received a$500.00 fine pursuant to section 409.26 (b)(3) of fhe St. Paul Legislative Code. 14. These Findings are based on ail of the evidence in the record. Citations to portions of the record are not intended to be exclusive references. 15. The Administrative Law Judge adopts as Findings any Conclusions that are more appropriately described as Findings. 16. 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 Herge's Bar has violated provisions of the St. Paul Legislative Code, and to make findings, conciusions, and recommendations or orders on that subject, as the case may be. 2. The City gave Herge's Bar 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. 3. The St. Paul Legislative Code contai!?s the following regulation pertaining to holders of licenses issued by the City: The premises, facilities, place, device or anything named in any license issued pursuant to any provision of the Saint Paui Legislative Code or other law shall at all times while open to the public or while being used or occupied for any purpose be open aiso to inspection and examination by any police, fire, or health 28 Testimony of Christine Rozek. 29 Minnesota Statutes, section 14.50, and section 340A.503. -5- oa-� aa officer or any building inspector of the city, as weil as the inspector. 4. The City has the burden of proving that Herge's Bar violated provisions of the St. Paul Legislative Code that require the bar to keep its premises open for inspection and examination by police officers, among other officials. The City met that burden in this proceeding. 5. On the evening of June 23, 2001, at approximately 11:30 p.m., the premises of Herge's Bar were open to the public, but those premises were nof also open to inspection and examination by two St. Paui police officers who were then conducting an investigation into possible illegal drug activity by one or more of the customers of Herge's Bar. 6. 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 Iicense. 7. The City's longstanding interpretations of ordinances that its Council has adopted are entitied to some deference. And its interpretation that Herge's previous violation of the ordinance prohibiting sale of alcohol to underage persons constitutes a first appearance for purposes of determining the presumptive penalty for the instant offense is a reasonable and correct interpretation of Section 409.26 (b) of the St. Paul Legislative Code. Prior offenses of any of the ordinances described in Section 409.26 (b) therefore constitute prior appearances for purposes of determining the presumptive per�alty in this proceeding. 8. The presumptive penalty here is suspension of the licenses issued to Herge's Bar for a period of fifteen (15) days. 9. Section 409.26(a) of St. Paui Legislative Code provides that: ao St. Paul Legislative Code, section 310.12. 3t St. Paul Legislative Code, Section 310.06(a). ' St. Paul Legislative Code, Section 310.01. 33 See Lollong v. Midwest Patrol, 545 N.W2d 372, 375 (Minn. 1996). 34 St. Paul Legislative Code, Section 409.26 (b)(7). � oa-�aa 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 revocafions, and shall apply to all on-sale and off-sale licensed premises for both intoxicating tiquor 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 and compelling reasons making it more appropriafe to do so. When deviating from these standards, the council shal� provide written reasons that specify why the penalty selected was more appropriate. 7. The Administrative Law Judge adopts as Conclusions any Findings that ar� more appropriately u�escribed as Conclusiors. 8. 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: RECOMMENDATION The Administrative Law Judge respectfully recommends that the St. Paul City Council suspend the licenses of Herge's Bar for fifteen (15) days but consider effective action by Herge's to solve the problem of unauthorized persons locking its west door from the inside in deciding whether to mitigate that penalry Dated this 17th day of December 2001. gRUCE H. JOHNS Administrative Law de c�a-i aa MEMORANDUM The parties largely agree about what most likely happened at Herge's on the evening of June 23, 2001: Illegal drug activity had taken place in Herge's western parking lot on previous occasions. That prompted Officers Bohn and Rhode to conduct a routine drug check there on the evening in question. When they arrived, they saw three or four men congregating near the bar's west door, giving rise to a suspicion that illegal drug activity was taking place. As the officers approached the men, one of inen said, "Po(ice! Get the door! Get the door!," and another entered the bar through the west door and locked it from the inside, using one or both of the flip locks. It is more probabie than not that the individual who locked the door then went into the adjacent men's rest room and disposed of illegal drugs by flushing them down the toilet. Meanwhile, unable to enter the bar through the wesi do�r, Officer Bohn loudly announced "St. Paul Police! Open up!" and began pounding on it with both his fist and his flashlight. At the time, the bartender and security guard, who were at least eighteen feet away from the west door, were likely distracted by something else and did not notice Officer Bohn's calis to open up the door or his pounding. A minute or so later, a bar customer unlocked the west door from the inside, and the officers were able to enter the premises. When they entered, they were not able to see any evidence of illegal drug activity. Herge's argues that the evidence establishes that none of its employees were directly involved with barring the officers entry into the premises, and that it should not be responsible for something that one of its customers did. At a minimum, it argues that these facts justify mitigation of the presumptive penalty. On the other hand, the City essentially argues that even though the violation lasted only for a about a minute, it was a material one because it impeded two police officers from conducting a drug investigation. The City further argues that no substantial or compelling reasons exist under section 409.26(a) of the St. Paul Legislative Code to warrant deviation from the presumptive penalty. The ALJ notes that the ordinance in question requires neither a showing of intent to prevent entry, nor does it iimit ifability where ciosure of the premises to inspection was caused by someone other than the licensee, its agents, or its employees. In other words, what happened here technicaily falis within the prohibitions of the ordinance. But in the ALJ's view, what happened here was not merely a technical violation of the ordinance. Ready access to an adjacent men's rest room for persons using the bar's west door and the ability to easily lock that door from the inside make the parking lot outside the door an ideal venue for conducting illegal drug activity. It becomes extremely easy for persons engaged in such activity to 35 St. Paul Legislative Code, section 310.12. � oa-iaa dispose of incriminating evidence at the first hint that the authorities may be nearby. In fact, the evidence established that the parking lot in question had been used as a site for drug trafficking on more than one occasion before this incident occurred. Until something is done to prevent unauthorized persons from locking the west door from the inside, there is a substantial likelihood that the adjacent parking lot will again be used for drug transactions. Put another way, there remains a risk that what happened on the evening of June 23, 2001, will happen again. And this should concern Herge's as much as it concerns the St. Paul Police Department because it would put Herge's licenses further at risk. Mr. Miller testified that the flip locks on the inside of west door were placed there about three years ago at the insistence of the St. Paul fire marshal. But reconciling the fire marshal's concerns with those of the police department is Herge's responsibil�ty. And there v�:as reaii; no t�eco�d made in this �roceeding about alternative technological solutions or staffing solutions. The ALJ therefore recommends that the Council impose the presumptive penalty of fifteen (15) days suspension. The Council may wish, however, to give Herge's the opportunity to demonstrate that it has found and impiemented an effective solution to the problem of unauthorized persons locking the west door from the inside. And upon clear demonstration of such a solution, the Council may wish to consider mitigating the presumptive penalty. I� �