02-1434` � p �"' � ':, s ; '
�L:i� '� �� �
� S..% t e`v 1 M_
Presented By
Referred To
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA
�\
Committee: Aate
1 WHEREAS, adverse action was initiated against the licenses held by Walter and Gloria
2 Herbst, d/b/a Herbst Food Mazket for the premises located at 779 Raymond Avenue in Saint Paul
3 (License ID# 19021) by the Office of LIEP for the a violation of sale of tobacco products to a
4 minor on July 26, 2001 and the Office of LIEP recommended revocation of the license based
upon the behauior of the lacensees at the time of the violarion; and
10
11
12
13
14
15
16
17
WHEREAS, Licensee requested a hearing before an Administrative Law Judge, and a
hearing was held on December 17, 2001 before Administrative Law Judge Beverly Jones
Heydinger, who issued Findings of Fact, Conclusions and Recommendations dated 7anuary 8,
2002, in which she determined that the Office of LIEP had sustained its burden of showing
substantial and compeiling reasons for deviating from the presumptive penalty for a first time
violation, but had not sustained the burden of showing that revocation was appropriate ; and
WHEREAS, the Report of the ALJ recommended that the City Council suspend the
license for a period of thirty days; now, therefare be it
RESOLVBD, that the licenses held by Walter and Gloria Herbst, d/b/a Herbst Food
18 Market for the premises located at 779 Raymond Avenue) aze hereby suspended for a period of
19 thirty days, for the violation of sale of tobacco products to a minor on July 26, 2001, together
20 with the strong and aggressive reaction of the licenses, including shouting, screaming, pounding
21 on the counter and following the inspectar out of the market. Said suspension shall begin at
22 12:01 a.m. on Wednesday, March 13, 2002 and shall continue until 11:59 pm. on Thursday,
23 April 11, 2002.
24
25 FURTHER RESOLVED, that the findings of fact and conclusions of law contained in the
26 ALJ Report in this case dated January 8, 2002 are adopted as the written findings and conclusion
27 of the Council in this matter.
28
Council File # p a, —►t} 3
Green Sheet # a.0 O'.�.y r3
F i t j � � � !�� ' '�{ (
2-r r!:��= Tiiis�I�esolution is based on the record of the proceedings before the ALJ, including the Dal�'� y�
3 hearing on December 17, 2001, the documents and e�ibits introduced therein, the findings of
4 fact and conclusions of law of the ALJ as referenced above and the deliberations of the Council
5 in open session at the public hearing on February 6, 2002 .
6
7 A copy of this Resolution, as adopted, shall be sent by first class mail to the
8 Adininistrative Law 7udge and to Todd Young, attorney for Licensees.
9
DEPARTMENT/OFFICElCOUNCII.: DATE INITIATED GREEN SHEET NO.' ZOOZ/�S
LIEP February 13, 2002 ' �a.-1y3
" CONTACT PERSON & PHONEc / / ATE INTr7AI/DATE
VuginiaPalmer(266-8710) � � 1 7
� PARTMEN"I DIIL CITY COUNCII.
MUST BE ON COUNCII. AGEr`DA BY (DATE) �SIGN CITY ATTORNEY a CITY CLERK
February , 2002 consent N[m�ER �''�cui, s�zv nm. _�r,r�cuu. sExv�nccrc
� � FOR _h1AI OR (OR ASST.) CNIL SERVICE COMMLSSION
ROL7TII3G
ORDER
TOTAL # OF SIGNAT[IRE PAGES _(CLIP ALL LOCATIONS FOR SIGNATURE)
acnorr �QUes�n: Adverse action against the Cigarette/Tobacco license held by Walter and Gloria Herbst,
d/b/a Herbst Food Market, located at 779 Raymond Avenue
RECOMMENDATTONS: Approve (A) or Reject (R) PERSONAL SERVICE CONTRACTS MUST ANSWER THE FOLLOWING
QUESTIONS:
PL,ANNING COMMISSION 1. Has this person/ficm ever worked under a contract for this departrnent?
Cffi COMMITI'EE Yu No
CNII. SERVICE COMMISSION 2. Hzs this personifian ever been a ciTy employee?
Yes No
3. Dces this pecsodfimt possess a skill not nocmally pussessed by any cumnt ciTy employee?
Yes No
Explain all yes answers on separate sheet and attach to green sheet
INTTIATING PROBLEM, ISSUE, OPPORTIJNITY (Who, What, When, Where, Why):
Walter and Gloria Herbst, d/b!a Herbst Food Market, failed 7uly 26, 2001 cigarette compliance check violently
confronting inspector and compliance checker. Administrative law judge recommended 30 day suspension of
license. "
�-
���,p� �pn4�?C
��� � ��
ADVANTAGESIFAPPROVED:
Council action necessary to enfarce penalty for license violarion.
DLSADVANTAGESIFAPPROVED:
None.
DISADVANTAGES IF NOT APPROVED:
No penalty will be unposed for license violation.
TOTAL AMOUNT OF TRANSACTION: $ COST/REVENUE BUDGETED:
FUNDING SOURCE: ACTNTTY NUMBER:
FINANCIAL INFORMATION: (EXPLAIN)
I:WSERS�PANGBORN�greensM1ett-cigarene wmpl B 9+pd
OFFICE OF THE CITY ATTORNEY Q Z..1 �{,3
Manuel J. Cervantes, City Attorney
4y
CITY OF SAINT PAUL CivilDivision
Randy C. Ke11y, Mayor 40D City Hall Telephorse: 651 266-871 D
ISWutKel7oggBlvd. Facsimile:657198-5619
SaintPaul, Minnesota7�/O2
i
`h(C'R ��`
January 14, 2002 ���
NOTICE OF COUNCIL HEARING ; �.;,_; `�, _� �'��
.�,-.:W
Todd P. Young
Todd Young Law Firm
21?4 North Snelling Avenue
Roseville, Minnesota 55113
RE: Cigarette/Tobacco License held by Walter and Gloria Herbst, d/b/a Herbst Food Market
for the premises located at 779 I2aymond Avenue in Saint Paul
License ID #: 19021
Dear Mr. Young:
Please take notice that a hearing on the report of the Administrative Law Judge concerning the
above-mentioned v3olation has been scheduled for 5:30 p.m., Wednesday, February 6, 2002, in
the City Council Chambers, Tturd Floor, Saint Paul City Ha11 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 aiso present oral or written argument to the council at the
Hearing. No new evidence will be received or testimony taken at this hearing. The Councii will
base its decision on the record of the proceedings before the Aiiministrative Law Judge and on
the azguments made and exceptions filed, but may d�part from the recommendations of such
Judge as pezmitted by law in the exercise of its judgement and dascretion.
Sincerely,
�'/���L�
Virginia D. Palmer
Assistant City Attorney
�
cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall
Christine Rozek, LIEP
Melissa Mathews, Community Organizer, St. Anthony Park Community Council, 890
Cromwell Ave., St. Paui, MN SSll4-1599
03..-F�17
15-6020-i4569-3
STATE OF MINNESOTA
` OFFfCE OF ADMINlSTRATIVE HEARlNGS
FOR THE SAINT PAUL CITY COUNCIL
In Re fhe CigarettelTobacco License FINDINGS OF FACT,
Held by Walter and Gloria Herbst d/bla CONCLUSIONS OF LAW
Herbsf Faod Markef AND RECdMMENDATION
This matter was heard by Administrative Law Judge Beverly Jones
Heydinger, commencing at 1:00 p.m., December 17, 2001, at the St. Paui City
Hall, Room 40-A, 15 West Kellogg Boulevard, Saint Paul, Minnesota. The
hearing was held pursuant to Notice of Hearing dated November 1, 2001.
Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Bivd.,
Saint Paul, Minnesota 55102, appeared on behalf of the City's Office of
Licensing, Inspections and Environmentai Protection (LIEP). Todd P. Young,
Attorney at Law, 2174 North Snel{ing Avenue, Roseville, MN 55113 appeared on
behalf of Walter and Gloria Herbst, the Licensees. The record cfosed on
December 17, 2001, at the close ofithe hearing.
NOTICE
This report is a recommendation, not a final decision. The St. Paul City
Councii will make the final decision after a review of the record and may adopt,
reject or modify these Findings of Fact, Conclusions, and Recommendation.�
Pursuanf to Minn. Stat. § 14.61 (2000), the City Council shall not make a fina!
dec+sion until this Report has been made avaitabie to the parties for at least ten
days. The parties may file exceptions to this Report and the City Council must
consider the exceptions in making a final decision. A copy of the City Council's
decision must be served on the partfes and the Administrative Law Judge by first
class mail? Parties should contact Fred Owusu, City Clerk, City of St. Paut, 170
City Hall, 15 West Kellogg Blvd., Sainf Paul, Minnesota 55102, to ascertain the
procedure for filing excepfions or presenting argument.
STATEMENT OF THE ISSUES
The issues presented at this hearing were:
Do extenuating circumstances justify deviating from the penalty mafrix for
a first cigarette/tobacco violation?
t St. Paui Legislative Code § 310.05 (o-l).
2 Minn. Stat. § 14.62, subd. 1(2QQQ).
81�{y3
FiNDiNGS OF FACT
1. �he parties have stipulated that the Licensees vio(ated St. Paul
Legislative Code §324.07. Walter Herbst and his sister, �loria Herbst, own and
operate the Herbst Food Market at 778 Raymond Avenue, St. Paul. They hoid a
license from the Cify to se(l cigarettes and tobacco. On July 26, 2001, Walter
Herbsf sold cigarettes to an underage purchaser who was conducting a
compliance check for LIEP. This was a first ofiFense for the Licensees.
2. The City has a penalty mafrix for imposing sanctions for violations
of the cigarette/tobacco license. According to the matrix, a fine of $200.00 is
imposed for a first offense.
3. LIEP asserts that there are ex,tenuatiny ;,ircumstances that jus;;F�
deviating from the penalty matrix to revoke the license.
4. The Licensees appealed that recommendation and requested a
hearing 4
5. On the date of the sale, the decoy, a young woman, age 16,
entered Herbst Market and attempted to purchase cigarettes. Walter Herbst
asked for her identification, she could not produce it, and she left the store. She
reiurned in a few minutes and showed Mr. Herbst her identification. Although Mr.
Herbst checked the photo, he failed to note that the young woman was not 18
years old and sold her the cigarettes. She completed the purchase and left the
store.
6. Mr. Herbst was concerned thaf he may have made a mistake and
approached his sister with a calendar to ask for heip checking fhe date.
7. Margaret Fuller, the City's license and permit inspector, returned to
the market with the cigarettes and a clipboard. Her identiFication tag was
hanging around her neck. She saw Ms. Herbst at the counfer waiting on another
customer, and waited briefly. She saw Mr. Herbst, told him of the sale, and
asked for his identification, as she ordinarily does when an improper saie has
been made. 6
8. Mr. Herbst became very upset, tried to show the identification in his
wallet, and Ms. Herbst became involved, screaming and attempting to cover up
the identification. She pounded her fist on the counter. Ms. Fufler asked both
Mr. and Ms. Herbst to caim down, but they were very agitated and loud. Mr.
Herbst tried to take back the cigarettes, and Ms. Herbst attempted to take Ms.
3 St. Pau( Legislative Code §32411 (b).
4 Ex. 3.
5 Testimony of Watter Her6st, Gloria Herbst.
6 Test. of Mazgaret Fuller.
2
ol-�y3
Fuller's identification. For severa! minutes fhe Herbsts yelfed and would not calm
down. Accordingly, Ms. Fuller left the market. As she did so, Ms. Herbst
grabbed her arm and walked her out the door. Ms. Fufler walked around the rear
of her car, which had been parked close to the front of the market, and Ms.
Herbst folfowed her fo the rear of the car. As Ms. Fuiler got into the car, fhe
decoy turned to iook at her. At the same time Mr. Herbst began hitfing the
window of the car on the passenger side of the car, which startled and frightened
the decoy.�
9. Ms. Fuller drove around the corner, Both the decoy and Ms. Fuller
were quite shaken up by the hierbsts' loud screaming and anger. Ms. Fufier
telephoned to her supervisor, Christine Rozek, and then called for the assistance
of a Sf. Paul pofice officer. O�cer pougias Juntinen responded to the call for
assistance, and Ms. Fuiler expfained to him what had occurred. She asked him to
check the market fo be sure that everything was alright.
10. Officer Juntinen attempted to talk to the Herbsts, but they continued
to be very upset, agitated and screaming. The Herbsts shouted about their
struggles with their business, including robberies, loss of business to large
supermarkets, and their fear that they were being "set up� by the inspector.
Although the officer was in the market for about 10 minutes, the Herbsts did not
caim down. He iold them that he was going to inspect the car to determine if any
damage had been done. He left the store, inspected the car, and did not see any
damage. At no time did O�cer Juntinen feel personai{y threatened by either Mr.
or Ms. Herbst. Because there was no evidence of a physical assault or damage
fo property, O�cer Juntinen had no reason to believe thaf a crime had been
committed, and therefore he did not file a police report. He did telf Ms. Fuller that
she should note in her report that an o�cer had been called, since that might be
relevant to the licensing viofation.
11. Ms. Rozek told Roger Curtis, Director of LIEP, about the incident
and that Ms. Fufler was very upset. Mr. Gurtis immediately drove to the market
to check on Ms. Fulier and the decoy. When he arrived, the police officer was in
the store, and Mr. Curtis coufd hear a lot of screaming from the store. Atier the
poiice ofr�cer came out, the officer, Mr. Curtis and Ms. Fufier went around the
corner to discuss the situation. Mr. Curtis attempted to introduce himself to Ms.
Herbst, but she was very agitated and aggressive, and he saw that there was no
possibility of a calm conversation at that fime. Ms. Herbst did not physicaliy
threaten Mr. Curtis.�
' Test� of M. Fu(Ier.
8 Test. of M. Fnller; Douglas Juntinen.
' Test. of D. Juntinen.
10 Test. of Roger Curtis.
3
0�.-143
12. Mr. Herbst is 78 years old and about 5'2" tall.'� He is fraii and
neroous. Ms. Herbst is aiso in her 70's and is abouf 4'9" fali. She is very loud
and aggressive when she speaks, and sounds angry and somewhat menacing,
even when she denies that she is angry. Neither pose any physical risk to others.
Ms. Herbst's manner could frighten someone who is unfamifiar with her.
13. Any Finding of Fact more properly fermed as a Conclusion is
hereby adopted as a Concfusion.
CONCLUSIONS
1. The Administrafive Law Judge and the Saint Paul City Council have
jurisdiction in this case.
2. The Licensees received timely and praper notice of the hearing and
the City complied with ali relevant substantive and procedural requirements
of statute and rule.
3. The City has authority to deny, suspend or revoke a iicense and to
impose penaities for violation of applicable statutes and ru(es.� The Legislative
Code includes presumptive penalties for violations. The presumptive penaity for
a first violation is a$200.00 fine. Deviations from the penalty matrix are
authorized when there are "substantial and compeiling reasons."��
4. The City has the burden of proving by a preponderance of the
evidence that there are substantial and compelling reasons that justify deviating
from the penaity matrix.
5. The City proved by a preponderance of the evidence thaf the
extenuating circumstances }ustify departure from the penalty matrix but did not
prove that the circumstances warrant revocation of the license.
Based upon the foregoing Conciusions, the Administrative Law Judge `
makes the foliowing:
" Test. of Walter Herbst.
' Test. of Gloria Herbst.
".Saint Paul Legislative Code §§ 310.05, 376.16; Minn. Stat. § 14.55.
14 See Minn. Stat. § 14.57 —14.61; Saint Paul Legislative Code § 310.05.
15 Saint Paul Legislative Code § 310.06.
16 Saint Paul Legislative Code § 324.1 I(b}.
�� Saint Paul Legislative Code §324.11 (a).
o� - ►y3
RECOMMENDATION
� IT IS HEREBY RECOMMENDED_ thaf the City of Saint Paul deviate
from the penalry matrix and impose a 30-day suspension of the license.
Dated this S day of January, 2002.
� � ,. /I
'. ../ �. .. �_ _ . i .
: j �� � � . -
' � - . !� i1
Reported: Tape-recorded (four tapes)
MEMORANDUM
The parties have agreed that the Licensees did sell cigarettes to an
underage buyer. This is a violation of the Saint Paui Legislative Code, and the
presumptive penalty fior such an offense is a$200.00 fine: The evidence shows
that the Licensees became very agitated, upset and loud when Ms. Fufier
returned to the store to notify them of the violation. Although the Licensees are
elderly, they are fiercely proud and protective of their business and each other.
The+r business is struggling; they have no employees and few saies. Mr. Herbst
is in poor health.
The circumstances warrant a 30-day suspension of the license because of
the strong, aggressive reaction by the Licensees, including shouting, screaming,
pounding on the counter and fotlowing the inspector out ofi the market. Deviation
from the matrix is further supported by the testimony of the LIEP Director and the
police officer that the Herbsts continued screaming and remained very emotionaf
after the inspector left the market. Ms. Herbst in particular had trouble regaini�g
her composure. License inspectors and the police should not be subjected to
such a degree of verbal abuse and threatening language. A 30-day suspension
should assure that the Licensees are aware that such a strong reaction wili not
be tolerafed, and that a subsequent offense couid lead to revocation of their
iicense. Suspension will convey the importance of cooperating with the
inspectors.
Ms. Herbst denies that she yelled and screamed at the inspector and the
pofice officer. However, her voice got very foud and angry during her testimony,
and she is a formidable individuai, despite her age and size. Ms. Fuller and the
decoy were frightened by the Licensees' over-reaction to the violation. Ms. Fuller
s
os.-+y3
was very shaken up by ths strong, fierce, loud reaction from Ms. Herbst,
especially when Ms. Herbst tried to grab Ms. Fuller's identification and foliowed
her out of the store to her parked car. The decoy was faken by surp�ise when
Mr: Herbst came to the passenger window and began knocking or pounding.
The surprise, as much as the actual force of his striking the window, frightened
her.
Given fhe ticensees' age, their very long history operating a neighborhood
business without causing prob{ems to fhe police or the inspectors, and no prior
vio(ations, there are not compelling reasons at present to revoke fhe license.
Neither Walter nor Gloria Herbst appears capable of harming an inspector. It is
likefy that an inspector who is aware of their reaction in fhis instance could
comp{ete anofher compliance buy.
B.J.H.
�
4` � p �"' � ':, s ; '
�L:i� '� �� �
� S..% t e`v 1 M_
Presented By
Referred To
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA
�\
Committee: Aate
1 WHEREAS, adverse action was initiated against the licenses held by Walter and Gloria
2 Herbst, d/b/a Herbst Food Mazket for the premises located at 779 Raymond Avenue in Saint Paul
3 (License ID# 19021) by the Office of LIEP for the a violation of sale of tobacco products to a
4 minor on July 26, 2001 and the Office of LIEP recommended revocation of the license based
upon the behauior of the lacensees at the time of the violarion; and
10
11
12
13
14
15
16
17
WHEREAS, Licensee requested a hearing before an Administrative Law Judge, and a
hearing was held on December 17, 2001 before Administrative Law Judge Beverly Jones
Heydinger, who issued Findings of Fact, Conclusions and Recommendations dated 7anuary 8,
2002, in which she determined that the Office of LIEP had sustained its burden of showing
substantial and compeiling reasons for deviating from the presumptive penalty for a first time
violation, but had not sustained the burden of showing that revocation was appropriate ; and
WHEREAS, the Report of the ALJ recommended that the City Council suspend the
license for a period of thirty days; now, therefare be it
RESOLVBD, that the licenses held by Walter and Gloria Herbst, d/b/a Herbst Food
18 Market for the premises located at 779 Raymond Avenue) aze hereby suspended for a period of
19 thirty days, for the violation of sale of tobacco products to a minor on July 26, 2001, together
20 with the strong and aggressive reaction of the licenses, including shouting, screaming, pounding
21 on the counter and following the inspectar out of the market. Said suspension shall begin at
22 12:01 a.m. on Wednesday, March 13, 2002 and shall continue until 11:59 pm. on Thursday,
23 April 11, 2002.
24
25 FURTHER RESOLVED, that the findings of fact and conclusions of law contained in the
26 ALJ Report in this case dated January 8, 2002 are adopted as the written findings and conclusion
27 of the Council in this matter.
28
Council File # p a, —►t} 3
Green Sheet # a.0 O'.�.y r3
F i t j � � � !�� ' '�{ (
2-r r!:��= Tiiis�I�esolution is based on the record of the proceedings before the ALJ, including the Dal�'� y�
3 hearing on December 17, 2001, the documents and e�ibits introduced therein, the findings of
4 fact and conclusions of law of the ALJ as referenced above and the deliberations of the Council
5 in open session at the public hearing on February 6, 2002 .
6
7 A copy of this Resolution, as adopted, shall be sent by first class mail to the
8 Adininistrative Law 7udge and to Todd Young, attorney for Licensees.
9
DEPARTMENT/OFFICElCOUNCII.: DATE INITIATED GREEN SHEET NO.' ZOOZ/�S
LIEP February 13, 2002 ' �a.-1y3
" CONTACT PERSON & PHONEc / / ATE INTr7AI/DATE
VuginiaPalmer(266-8710) � � 1 7
� PARTMEN"I DIIL CITY COUNCII.
MUST BE ON COUNCII. AGEr`DA BY (DATE) �SIGN CITY ATTORNEY a CITY CLERK
February , 2002 consent N[m�ER �''�cui, s�zv nm. _�r,r�cuu. sExv�nccrc
� � FOR _h1AI OR (OR ASST.) CNIL SERVICE COMMLSSION
ROL7TII3G
ORDER
TOTAL # OF SIGNAT[IRE PAGES _(CLIP ALL LOCATIONS FOR SIGNATURE)
acnorr �QUes�n: Adverse action against the Cigarette/Tobacco license held by Walter and Gloria Herbst,
d/b/a Herbst Food Market, located at 779 Raymond Avenue
RECOMMENDATTONS: Approve (A) or Reject (R) PERSONAL SERVICE CONTRACTS MUST ANSWER THE FOLLOWING
QUESTIONS:
PL,ANNING COMMISSION 1. Has this person/ficm ever worked under a contract for this departrnent?
Cffi COMMITI'EE Yu No
CNII. SERVICE COMMISSION 2. Hzs this personifian ever been a ciTy employee?
Yes No
3. Dces this pecsodfimt possess a skill not nocmally pussessed by any cumnt ciTy employee?
Yes No
Explain all yes answers on separate sheet and attach to green sheet
INTTIATING PROBLEM, ISSUE, OPPORTIJNITY (Who, What, When, Where, Why):
Walter and Gloria Herbst, d/b!a Herbst Food Market, failed 7uly 26, 2001 cigarette compliance check violently
confronting inspector and compliance checker. Administrative law judge recommended 30 day suspension of
license. "
�-
���,p� �pn4�?C
��� � ��
ADVANTAGESIFAPPROVED:
Council action necessary to enfarce penalty for license violarion.
DLSADVANTAGESIFAPPROVED:
None.
DISADVANTAGES IF NOT APPROVED:
No penalty will be unposed for license violation.
TOTAL AMOUNT OF TRANSACTION: $ COST/REVENUE BUDGETED:
FUNDING SOURCE: ACTNTTY NUMBER:
FINANCIAL INFORMATION: (EXPLAIN)
I:WSERS�PANGBORN�greensM1ett-cigarene wmpl B 9+pd
OFFICE OF THE CITY ATTORNEY Q Z..1 �{,3
Manuel J. Cervantes, City Attorney
4y
CITY OF SAINT PAUL CivilDivision
Randy C. Ke11y, Mayor 40D City Hall Telephorse: 651 266-871 D
ISWutKel7oggBlvd. Facsimile:657198-5619
SaintPaul, Minnesota7�/O2
i
`h(C'R ��`
January 14, 2002 ���
NOTICE OF COUNCIL HEARING ; �.;,_; `�, _� �'��
.�,-.:W
Todd P. Young
Todd Young Law Firm
21?4 North Snelling Avenue
Roseville, Minnesota 55113
RE: Cigarette/Tobacco License held by Walter and Gloria Herbst, d/b/a Herbst Food Market
for the premises located at 779 I2aymond Avenue in Saint Paul
License ID #: 19021
Dear Mr. Young:
Please take notice that a hearing on the report of the Administrative Law Judge concerning the
above-mentioned v3olation has been scheduled for 5:30 p.m., Wednesday, February 6, 2002, in
the City Council Chambers, Tturd Floor, Saint Paul City Ha11 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 aiso present oral or written argument to the council at the
Hearing. No new evidence will be received or testimony taken at this hearing. The Councii will
base its decision on the record of the proceedings before the Aiiministrative Law Judge and on
the azguments made and exceptions filed, but may d�part from the recommendations of such
Judge as pezmitted by law in the exercise of its judgement and dascretion.
Sincerely,
�'/���L�
Virginia D. Palmer
Assistant City Attorney
�
cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall
Christine Rozek, LIEP
Melissa Mathews, Community Organizer, St. Anthony Park Community Council, 890
Cromwell Ave., St. Paui, MN SSll4-1599
03..-F�17
15-6020-i4569-3
STATE OF MINNESOTA
` OFFfCE OF ADMINlSTRATIVE HEARlNGS
FOR THE SAINT PAUL CITY COUNCIL
In Re fhe CigarettelTobacco License FINDINGS OF FACT,
Held by Walter and Gloria Herbst d/bla CONCLUSIONS OF LAW
Herbsf Faod Markef AND RECdMMENDATION
This matter was heard by Administrative Law Judge Beverly Jones
Heydinger, commencing at 1:00 p.m., December 17, 2001, at the St. Paui City
Hall, Room 40-A, 15 West Kellogg Boulevard, Saint Paul, Minnesota. The
hearing was held pursuant to Notice of Hearing dated November 1, 2001.
Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Bivd.,
Saint Paul, Minnesota 55102, appeared on behalf of the City's Office of
Licensing, Inspections and Environmentai Protection (LIEP). Todd P. Young,
Attorney at Law, 2174 North Snel{ing Avenue, Roseville, MN 55113 appeared on
behalf of Walter and Gloria Herbst, the Licensees. The record cfosed on
December 17, 2001, at the close ofithe hearing.
NOTICE
This report is a recommendation, not a final decision. The St. Paul City
Councii will make the final decision after a review of the record and may adopt,
reject or modify these Findings of Fact, Conclusions, and Recommendation.�
Pursuanf to Minn. Stat. § 14.61 (2000), the City Council shall not make a fina!
dec+sion until this Report has been made avaitabie to the parties for at least ten
days. The parties may file exceptions to this Report and the City Council must
consider the exceptions in making a final decision. A copy of the City Council's
decision must be served on the partfes and the Administrative Law Judge by first
class mail? Parties should contact Fred Owusu, City Clerk, City of St. Paut, 170
City Hall, 15 West Kellogg Blvd., Sainf Paul, Minnesota 55102, to ascertain the
procedure for filing excepfions or presenting argument.
STATEMENT OF THE ISSUES
The issues presented at this hearing were:
Do extenuating circumstances justify deviating from the penalty mafrix for
a first cigarette/tobacco violation?
t St. Paui Legislative Code § 310.05 (o-l).
2 Minn. Stat. § 14.62, subd. 1(2QQQ).
81�{y3
FiNDiNGS OF FACT
1. �he parties have stipulated that the Licensees vio(ated St. Paul
Legislative Code §324.07. Walter Herbst and his sister, �loria Herbst, own and
operate the Herbst Food Market at 778 Raymond Avenue, St. Paul. They hoid a
license from the Cify to se(l cigarettes and tobacco. On July 26, 2001, Walter
Herbsf sold cigarettes to an underage purchaser who was conducting a
compliance check for LIEP. This was a first ofiFense for the Licensees.
2. The City has a penalty mafrix for imposing sanctions for violations
of the cigarette/tobacco license. According to the matrix, a fine of $200.00 is
imposed for a first offense.
3. LIEP asserts that there are ex,tenuatiny ;,ircumstances that jus;;F�
deviating from the penalty matrix to revoke the license.
4. The Licensees appealed that recommendation and requested a
hearing 4
5. On the date of the sale, the decoy, a young woman, age 16,
entered Herbst Market and attempted to purchase cigarettes. Walter Herbst
asked for her identification, she could not produce it, and she left the store. She
reiurned in a few minutes and showed Mr. Herbst her identification. Although Mr.
Herbst checked the photo, he failed to note that the young woman was not 18
years old and sold her the cigarettes. She completed the purchase and left the
store.
6. Mr. Herbst was concerned thaf he may have made a mistake and
approached his sister with a calendar to ask for heip checking fhe date.
7. Margaret Fuller, the City's license and permit inspector, returned to
the market with the cigarettes and a clipboard. Her identiFication tag was
hanging around her neck. She saw Ms. Herbst at the counfer waiting on another
customer, and waited briefly. She saw Mr. Herbst, told him of the sale, and
asked for his identification, as she ordinarily does when an improper saie has
been made. 6
8. Mr. Herbst became very upset, tried to show the identification in his
wallet, and Ms. Herbst became involved, screaming and attempting to cover up
the identification. She pounded her fist on the counter. Ms. Fufler asked both
Mr. and Ms. Herbst to caim down, but they were very agitated and loud. Mr.
Herbst tried to take back the cigarettes, and Ms. Herbst attempted to take Ms.
3 St. Pau( Legislative Code §32411 (b).
4 Ex. 3.
5 Testimony of Watter Her6st, Gloria Herbst.
6 Test. of Mazgaret Fuller.
2
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Fuller's identification. For severa! minutes fhe Herbsts yelfed and would not calm
down. Accordingly, Ms. Fuller left the market. As she did so, Ms. Herbst
grabbed her arm and walked her out the door. Ms. Fufler walked around the rear
of her car, which had been parked close to the front of the market, and Ms.
Herbst folfowed her fo the rear of the car. As Ms. Fuiler got into the car, fhe
decoy turned to iook at her. At the same time Mr. Herbst began hitfing the
window of the car on the passenger side of the car, which startled and frightened
the decoy.�
9. Ms. Fuller drove around the corner, Both the decoy and Ms. Fuller
were quite shaken up by the hierbsts' loud screaming and anger. Ms. Fufier
telephoned to her supervisor, Christine Rozek, and then called for the assistance
of a Sf. Paul pofice officer. O�cer pougias Juntinen responded to the call for
assistance, and Ms. Fuiler expfained to him what had occurred. She asked him to
check the market fo be sure that everything was alright.
10. Officer Juntinen attempted to talk to the Herbsts, but they continued
to be very upset, agitated and screaming. The Herbsts shouted about their
struggles with their business, including robberies, loss of business to large
supermarkets, and their fear that they were being "set up� by the inspector.
Although the officer was in the market for about 10 minutes, the Herbsts did not
caim down. He iold them that he was going to inspect the car to determine if any
damage had been done. He left the store, inspected the car, and did not see any
damage. At no time did O�cer Juntinen feel personai{y threatened by either Mr.
or Ms. Herbst. Because there was no evidence of a physical assault or damage
fo property, O�cer Juntinen had no reason to believe thaf a crime had been
committed, and therefore he did not file a police report. He did telf Ms. Fuller that
she should note in her report that an o�cer had been called, since that might be
relevant to the licensing viofation.
11. Ms. Rozek told Roger Curtis, Director of LIEP, about the incident
and that Ms. Fufler was very upset. Mr. Gurtis immediately drove to the market
to check on Ms. Fulier and the decoy. When he arrived, the police officer was in
the store, and Mr. Curtis coufd hear a lot of screaming from the store. Atier the
poiice ofr�cer came out, the officer, Mr. Curtis and Ms. Fufier went around the
corner to discuss the situation. Mr. Curtis attempted to introduce himself to Ms.
Herbst, but she was very agitated and aggressive, and he saw that there was no
possibility of a calm conversation at that fime. Ms. Herbst did not physicaliy
threaten Mr. Curtis.�
' Test� of M. Fu(Ier.
8 Test. of M. Fnller; Douglas Juntinen.
' Test. of D. Juntinen.
10 Test. of Roger Curtis.
3
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12. Mr. Herbst is 78 years old and about 5'2" tall.'� He is fraii and
neroous. Ms. Herbst is aiso in her 70's and is abouf 4'9" fali. She is very loud
and aggressive when she speaks, and sounds angry and somewhat menacing,
even when she denies that she is angry. Neither pose any physical risk to others.
Ms. Herbst's manner could frighten someone who is unfamifiar with her.
13. Any Finding of Fact more properly fermed as a Conclusion is
hereby adopted as a Concfusion.
CONCLUSIONS
1. The Administrafive Law Judge and the Saint Paul City Council have
jurisdiction in this case.
2. The Licensees received timely and praper notice of the hearing and
the City complied with ali relevant substantive and procedural requirements
of statute and rule.
3. The City has authority to deny, suspend or revoke a iicense and to
impose penaities for violation of applicable statutes and ru(es.� The Legislative
Code includes presumptive penalties for violations. The presumptive penaity for
a first violation is a$200.00 fine. Deviations from the penalty matrix are
authorized when there are "substantial and compeiling reasons."��
4. The City has the burden of proving by a preponderance of the
evidence that there are substantial and compelling reasons that justify deviating
from the penaity matrix.
5. The City proved by a preponderance of the evidence thaf the
extenuating circumstances }ustify departure from the penalty matrix but did not
prove that the circumstances warrant revocation of the license.
Based upon the foregoing Conciusions, the Administrative Law Judge `
makes the foliowing:
" Test. of Walter Herbst.
' Test. of Gloria Herbst.
".Saint Paul Legislative Code §§ 310.05, 376.16; Minn. Stat. § 14.55.
14 See Minn. Stat. § 14.57 —14.61; Saint Paul Legislative Code § 310.05.
15 Saint Paul Legislative Code § 310.06.
16 Saint Paul Legislative Code § 324.1 I(b}.
�� Saint Paul Legislative Code §324.11 (a).
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RECOMMENDATION
� IT IS HEREBY RECOMMENDED_ thaf the City of Saint Paul deviate
from the penalry matrix and impose a 30-day suspension of the license.
Dated this S day of January, 2002.
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'. ../ �. .. �_ _ . i .
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Reported: Tape-recorded (four tapes)
MEMORANDUM
The parties have agreed that the Licensees did sell cigarettes to an
underage buyer. This is a violation of the Saint Paui Legislative Code, and the
presumptive penalty fior such an offense is a$200.00 fine: The evidence shows
that the Licensees became very agitated, upset and loud when Ms. Fufier
returned to the store to notify them of the violation. Although the Licensees are
elderly, they are fiercely proud and protective of their business and each other.
The+r business is struggling; they have no employees and few saies. Mr. Herbst
is in poor health.
The circumstances warrant a 30-day suspension of the license because of
the strong, aggressive reaction by the Licensees, including shouting, screaming,
pounding on the counter and fotlowing the inspector out ofi the market. Deviation
from the matrix is further supported by the testimony of the LIEP Director and the
police officer that the Herbsts continued screaming and remained very emotionaf
after the inspector left the market. Ms. Herbst in particular had trouble regaini�g
her composure. License inspectors and the police should not be subjected to
such a degree of verbal abuse and threatening language. A 30-day suspension
should assure that the Licensees are aware that such a strong reaction wili not
be tolerafed, and that a subsequent offense couid lead to revocation of their
iicense. Suspension will convey the importance of cooperating with the
inspectors.
Ms. Herbst denies that she yelled and screamed at the inspector and the
pofice officer. However, her voice got very foud and angry during her testimony,
and she is a formidable individuai, despite her age and size. Ms. Fuller and the
decoy were frightened by the Licensees' over-reaction to the violation. Ms. Fuller
s
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was very shaken up by ths strong, fierce, loud reaction from Ms. Herbst,
especially when Ms. Herbst tried to grab Ms. Fuller's identification and foliowed
her out of the store to her parked car. The decoy was faken by surp�ise when
Mr: Herbst came to the passenger window and began knocking or pounding.
The surprise, as much as the actual force of his striking the window, frightened
her.
Given fhe ticensees' age, their very long history operating a neighborhood
business without causing prob{ems to fhe police or the inspectors, and no prior
vio(ations, there are not compelling reasons at present to revoke fhe license.
Neither Walter nor Gloria Herbst appears capable of harming an inspector. It is
likefy that an inspector who is aware of their reaction in fhis instance could
comp{ete anofher compliance buy.
B.J.H.
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