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04-1180Council File # ' [ l Green Sheet # 3 o OZ � Presented By Referred To Committee: Date WHEREAS, adverse action was initiated against the licenses held by M Reaney, Inc. d(b!a Reaney's Baz for the premises ]ocated at 870 Payne Ave. in Saint Paul (License ID# 0016230) by Notice of Violation dated October 15, 2004; and 5 WHEREAS, the Office of License, Inspections and Environmental Protection 6 recommended adverse action against the license based upon two police reports, one from 7 December 20, 2003 alleging sale of alcohol to two obviously intoxicated persons and another 8 from January 9, 2004 alleging sale of alcohol to two underage persons; and 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 WHEREAS, the applicant sought and received a hearing before an Administrative L,aw Judge, which was held on July 21, 2004; and WHEREAS, the Administrative Laau 7udge issued Findings of Faci, Conclusions and a Recommendation for penalry dated September 10, 2004 in which he found that there was a sale of alcohol to an obviously intoxicated person on December 20, 2003 and that there were two sales of aicohol to underage persons on 7uly 21, 2004; and WFiEREAS, the Office of License, Inspections and Environmental Protection recommended a penalty of a$2,000 fine and a thirty day suspension of the licenses held by licensee, with twenty of the days stayed for a period of 18 months, based upon the fact that there was a prior adverse action before the Council on December 17, 2003 for which the Council imposed a$500 fine for failure to maintain order and sobriety in the establishment; the multiple violations; their closeness in rime to the Council action on the previous violation, indicating that the Licensee had not taken responsibility for changing management practices and the nature of the violations which al] involved serious violations of the liquor laws; and WHEREAS, the Report of the AIJ recommended a penalty of a$1,500 fine and a suspension of ten days, stayed for a period of 18 months, but indicated that there were facts which would justify an upward departure and that LIEP's recommendation was not unreasonable; and WHEREAS, the applicant was notified of a hearing before the Saint Paul City Council on December 1, 2004 to consider the report of the Administrative I,aw Judge and advised of his right to make objections to the Findings of Fact, Conclusions and Recommendation, and appeared with his attorney to argue the appropriate penalty; and WI�TZEAS, the public hearing was closed on December 1, and the matter was laid over to December 8, 2004 for Council to discuss and impose a penalty; now, therefore be it RESOLUTION CITY OF SAINT PAUL, MINNESOTA 2yA D�f - l! $n � 10 11 12 13 14 15 16 17 18 19 20 21 RESOLVED, that a fine of $1,500 is hereby imposed on the ]icenses held by M Reaney, Inc. d/b/a Reaney's Bar for the premises located at 870 Payne Ave, in Saint Paul (License ID #0016230) and a thirty day suspension of the licenses is imposed, with fifteen of the thirty days being stayed for a period of eighteen months on the condition that there be no further violalions in that period of rime. The fine is payable to the Office of LIEP within thirty days following the passage and approval of this resolution. The license suspension shall be effective at 12:01 a.m. on Wednesday, December 29, 2004 and shall continue in effect until Friday, January 7, 2005 at 11:59 p.m. FCJFtTHER RESOLVED, that the findings of fact and conclusions of law contained in the AIJ Repozt in this case dated September 10, 2004 are adopted as the written findings and conclusion of the Council in this matter. This Resolution is based on the record of the proceedings before the AL.J, including the hearing on July 21, 2004, the documents and exhibits introduced therein, the findings of fact and conclusions of law of the AL.J as referenced above, the arguments made to the Council in open session at the public hearing on December 1, 2004 and the deliberations of Council on December 8, 2004. A copy of this Resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and to the Attorney for the Licensee. Requested by Department of: �' . "1 Form Approved by City Attorney '� % � �� By: v Approved by Mayor for Suhmission to Council - o�f-ft40 � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � Depar6nenUOificelcouncl Date In'rtiafed; ( cA -�,tyA,��. ,�� � Green Sheet NO: 3024622 � � � I DeoaAment SentTOPerson InitiaV(Jate ContactPerson & Phone: v�ginia Palmer 0 ' A orne 266�8710 p,�,q�yn 1 iCitvAtto Deu rtme tDi�ecto � Must Be on Council Agenda by (Date�: Number Z onn For Routing 3 ' Cirk Order 4 � � 5 � Total �k of Signature Pages �(Clip All Locations for Signature) Action Requested: Memorializing City Council ac&on taken December 8, 2004 imposing adverse acrion against all licenses held by M. Reaney, Inc., d/b/a Reaney's Baz, 870 Payne Avenue. Recommendations: Approee (A) or Reject (R): Personal Serviee Contracts MustMswer the Following Questions: Planning Commission 1, Has this persoNTirtn e�er woriced under a contract for this department? CIB Committee Yes No CiHI Service Commission 2. Has this persoNfirtn e�er been a ciry employee? Yes No 3. Does this persorJfirtn possess a skill not normally possessed by any current city employee? Yes No Explain all yes answers on separate sheet and attach to green sheet InitiaGng Problem, Issues, OppoRunity (YYho, What, When, Where, Why): , � Adva�NaAeslFApproved: I Disadvanfa5�es tFApproved: � Disadvantapes If NotApproved: 7ofa1 AmouM of CosHRevenue Budgeted: Transaction: Funding Saurce: ActivitY Number. Financial InfortnaEon: (Explain) I December 90, 2004 9:03 AM Page 1 D�-11�0 OFFICE OF THE CITY ATTORNEY ManuelJ. Cervnntes, CiryAttorney CITY OF SAINT PAiTL Civil Division Randy G Kelly, Mayor 400 C7ry HaII Telephone: 6A 266-87l0 ISWestKel[oggBlvd. Facsimile:651298-56/9 SaintPaul, Minrtesota 55lOZ September 15, 2004 �'�° � � � ��� �. �' ���� NOTICE OF COUNCII. HEARING Frederick 7. Goetz Goetz & Eckland, PA 43 Main Street SE, Suite 400 Minneapolis, MN 55414 RE: In the Matter of all Licenses held by M. Reaney, Inc., d/b/a Reaney's Bar for the premises located at 870 Payne Avenue in Saint Paul OAH Docket No. 6-602Q-15907-3 Dear Mr. Goetz: Please take notice that a hearing on the report of the Administrative Law 3udge conceming the above-mentioned application has been scheduled for 5:30 p.m., Wednesday, December 1, 2004, 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 7udge as permitted by law in the exercise of its judgement and discretion. Sincerely, �/ C��� �� Virginia D. Palmer Assistant City Attomey cc: Diane Nordstrom, Office of Administrative Hearings, 100 Washington Squaze, Suite 1700, Minneapolis, NIN 55401 Mary Erickson, Assistant Council Secretary, 310 City Hall Christine Rozek, Deputy Director of LIEP Payne Phalen District 5 Planning Council, 1014 Payne Avenue, Saint Paul, MN 55101 AA-ADA-EEO Employer o�l - � r go Don Luna, City Clerk City of St. Paul 170 City Hall 15 West Kellogg Blvd. St. Paul, MN 55102 STATE OF MINNESOTA OF�ICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 TELEPHONE:(612)341-7600 TTY: (612) 341-7346 September 10, 2004 � � :�: `�. ' , �m � �_ ` _ Jr � _ _ LUfl# � r ( �.. J � '' ��� Re: In the Matter of Ail Licenses He1d by M. Reaney, inc. d/b/a Reaney's Bar for the Premises Located at 870 Payne Ave. in Sf. Paul; License ID #0016230 OAH Docket No. 6-6020-15907-3 Dear Mr. Luna: 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. Also enclosed is the official record, with the exception of the tape recording of the hearing. If you would like a copy of the tapes, please contact our office in writing or by telephone at 612-341-7448. Our file in this matter is now being closed. Sincerely, j , / / �, _ / , ALLAN W. KLEIN Administrative Law Judge AW :nh Encl. cc Virginia D. Palmer Fredrick J. Goetz Telephone: (612) 341-7609 Providing Vmpartiaf Hearings for Government and Citizens An Equal Opportunity Employer Administrative Law Division & Administrative Services Facsimile: (612) 349-2665 Workers' Compensation Hearings Division Facsimile: (612) 349-2691 Wortcers' Compensation Settlemeni Division Facsimile: (612) 349-2634 o�- i � $D 6-6020-15907-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE COUNC4L OF THE CITY OF ST. PAUL In the Matter of All Licenses Held by M. Reaney, inc. d/b/a Reaney's Bar for the Premises Located at 870 Payne Ave. in St. Paul; license 1D #0016230 FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION A hearing in this matter was held on July 21, 2004 at the St. Paul City Hall before Allan W. Kiein, Administrative Law Judge. Appearing on behalf of the Office of License, Inspections and Environmentaf Protection for the City of St. Paul (hereinafter "LfEP") was Virginia D. Pa{mer, Assistant City Attorney, 400 City Hal4, 15 West Ke{logg Boulevard, St. Paul, MN 55102. Appearing on behalf of M. Reaney, Inc. d/b/a Reaney's Bar (hereinafter "Reaney's") was Fredrick J. Goetz, of the firm of Goetz & Eckland, P.A., 43 Main Street SE, Suite 400, Minneapolis, MN 55414. The hearing took less than a day, and the record closed on August 31, 2004, upon receipt of the final argument from counsel. NOTICE This report is a recommendation, not a final decision. The St. Paul City Council will make the final decision after a review of the record. The City Council may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendation herein. Under Section 310.05(c-1) of the City's Legislative Code, the City Council wili provide Reaney's an opportunity to present oral or written argument to it before it takes final action. Reaney's should contact the St. Paul City Cierk to ascertain the procedure fior presenting argument to the council. STATEMENT OF ISSUE Shouid disciplinary action be taken against Reaney's licenses because of two alleged violations of sfatute? Based upon all of the proceedings herein, the Administrative Law Judge makes the following: o�- c t �� FINDiNGS OF FACT 1. Reaney's Bar is {ocated at 870 Payne Avenue, at the corner of Payne and Welis Street, on the east side of St. Paul. 2. The corporation M. Reaney, Inc. hoids a number of licenses from the City, including an on-sale {iquor license, an an-sale Sunday liquor license, and oif-sa{e ma4t liquor {icense, a gambling license, and a Class C restaurant license. 3. On December 20, 2003, which was the Saturday before Christmas, St. Paul Police Officers J. Reginek and M. Dunaski were doing routine patrol work on Payne Avenue. Part of their normal activities is to make "pro-active police visits" to a variety of business establishments, including bars. There are 15 bars within their patrol area, and typicaily tiley wil! walk through a bar looking for underage drinking, obvious(y intoxicated persons, marijuana, illegal gambling, locked dooss, and similar violations. On that Saturday night, at approximately 8:45 p.m., they entered Reaney's Bar. 4. Reaney's is a relatively long, thin room. The entrance is at one end, with the bar running down the right hand side and tables on the left. At the far end of the bar from the entrance, the bar forms an "L" shape. When Officers Reginek and Dunaski entered the bar, they sat down near the front door and looked around. They observed a ta6le with three people sitting at it. The table held numerous (at least a dozen) glasses and beer cans. One of the three people was a woman, later identified as Amy Robson, who was leaning against the wall, with her head bobbing up and down, in what the officers described as a "semi-conscious state." She was quiet, and appeared to be having trouble staying awake. Neither officer saw any of the three people at the table actually go up to the bar and buy a beverage. Nor did the officers observe any person deliver a beverage to the table. But O�cer Reginek did observe each of the three people drinking from glasses or cans that were already on the table. Neither officer recognized Rabson, but both of them recognized one of the other people at the table, Ricky Isaac. They had seen Isaac often before on their patrols. 5. After approximately 15 minutes in the bar, the two officers went outside. Shortiy thereafter, Robson and Isaac exited the bar. The officers watched as they proceeded. east along Wells Street, and noticed that Robson was unabfe to waik without holding herself up by piacing her hand on the building wall. The officers approached the two, and spoke with them. Robson was nearly incoherent, and was obviously highly intoxicated. Isaac had bloodshot, watery eyes and a strong odor of alcoholic beverages on his breath, and slurred his speech, but he was better able to speak than was Robson. The officers called for a portable breath test squad, and administered PBT to both Robson and isaac. Robson's PBT results were .273 blood alcohol content, while Isaac's PBT results were .291. In fhe course of their conversation, Robson toid the officers that she had been drinking in Reaney's since 3:00 p.m. that day. The officers � o�- �r�t� determined that neither of fhe two had a permanent address, and they were contemplating having them taken to detox when an emergency call came in regarding a high speed chase nearby. The officers left to join the chase, leaving Isaac and Robson on Wel{s Street. 6. The o�cers later filed an lncident Report, aileging that Reaney's had sold aicohol to obviously intoxicated persons. The Administrative Law Judge finds that Reaney's did sell an intoxicating beverage to an obviously intoxicated person when it sold to Amy Robson. However, there is insu�cient evidence to find that Ricky Isaac was obviously +ntoxicated at the time of any sale to him. Reaney's did fail to maintain sobriety +n the establishment. 7. Approximately three weeks later, on Friday, January 9, 2004, numerous police personnel executed a search warrant at Reaney's as part of an ongoing investigation conceming the iilegal sale of narcotics and weapons violations. The police entered the bar at approximately 11:30 p.m. 8. O�cers Reginek and Dunaski were among the first to enter the bar. They observed two individuals who appeared to be under the age of 21. The individuals were backing away from the bar as the officers entered, and promptly attempted to leave the bar. Officer Reginek radioed to police stili outside the bar to stop the two. They were apprehended, and both were discovered to be under age. The man (Patrick Williams) had an ID, which turned out to belong to his oider brother. The picture on the ID did not match the face of the individual who had been in the bar. Williams was booked for giving false information. He admitted that he had been drinking at the bar. The girl (Antoinette Townsend) also admitted she had been drinking in the bar. She did not have a valid 1D with her. She was cited for underage consumption. Both were handcufFed and placed inside a paddy wagon. None of the police actually observed eiiher of these individuals drinking at the bar, nor did they test the glasses which were located on the bar in front of the individuals. Both were given PBT's, and the man had a.115 BAC, while the woman had a.033. There is no evidence that any of Reaney's empioyees made a visual examination of Wilfiam's ID and compare the photograph to the person presenting it. The Administrative Law Judge finds that Reaney did seil to and did alfow both of them to consume intoxicating beverages. 9. The City is recommending that Reaney's receive a$2,000 fine, and a 30-day suspension of the licenses, with 20 days of the suspension stayed for a period of 18 months. Reaney's, on the other hand, denies both of the ailegations, but argues that under the presumptive penalty matrix contained in the City Code (Section 409.26(b)}, only a fine shali be imposed, not any suspension. One of the reasons the City is asking for a higher penalty is a recent simi{ar violation. 10. On September 6, 2003, police officers obsented an individual leaving Reaney's at closing time who was so intoxicated that she had to be taken to 3 o�- r�� detox. This lead LIEP to propose taking adverse action againsf the license, and Reaney's requested a hearing. On December 2, 2003, at the time of the hearing, a settfement was reached whereby Reane�s agreed fo admit to the violafion of failure to maintain order and sobriety and accept a recommended penaity in fhe amount of a$500 fine. This settlement was brought to the City Council and, on December 17, 2003, the Council adopted resolution #03-1103, ordering the $500 fine for the violation of failure to maintain order and sobriety. The resolution was fhen forwarded to the Mayor's o�ce. Before the Mayor had acted on the resolution, however, the incident of December 20, 2003, invofving Amy Robson and Ricky Isaac, occurred. The Mayor signed the resolution four days later, on December 24, 2003. 11. At the December 17, 2003 City Council hearing, Mr. Reaney stated that he thought the citation and penalty were "ridiculous", that the process was "a waste of time" and that he thought Reaney's "wou{d be back here soon". Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the foliowing: CONCLUSIONS 1. The City Council of the City of St. Paul and the Administrative Law Judge have jurisdiction in this matter pursuant to M+nn. Stat. § 14.55 and § 310.05 of the City's legislative code. 2. The City has given proper notice of the hearing in this matter and has fulfilled all relevant substantive and procedural requirements of law or rule. 3. Minn. Stat. § 340A.502 provides that no person may sei{ alcoholic beverages for the use of an obviously intoxicated person. On the evening oF December 20, 2003, Amy Robson was sold intoxicating beverages by Reaney's when she was obviously intoxicated. The evidence is insufficient to determine that Ricky Isaac was obviously intoxicated at the time of a sale. 4. Minn. Stat. § 340A.503, subd. 1(a) makes it uniawful for any Iicensee to permit any person under the age of 21 years to drink alcohoiic beverages on the licensed premises. Section 340A.503, subd. 2 makes it unlawful for any person to sefl or give alcoholic beverages to a person under 21 years of age. In this case, the evidence demonstrates that Reaney's did violate both subdivisions of that statute on January 9, 2004, in the cases of Patrick Wifliams and Antoinette Townsend. Minn. Stat. § 304A.503, subd. 6(b) provides a"safe harbor" for facilities accused of violating subd. 2(1) if the facility can "prove...reasonably and in good faith refied upon representations of proof of age..." such as a valid driver's license with a photograph and date of birth. The evidence in this case does not support Reaney's entitlement to the "safe harbor" provision. 5. Section 409.26 of the City's Municipal Code sets forth presumptive penalties for violations in connection with intoxicating liquor and non-intoxicating 0 a�- i i s�o malt liquor. Paragraph (a), however, provides that fhe Council may deviate from the presumptive penaities in an individuai case if it determines "that there exists substantial and compeliing reasons making if more appropriate to do so." The presumptive penalty for sale of alcoholic beverages to underage person for a facility with a seating capaciiy ofi up to 149 persons is $500. 7he penalty for sale of alcoholic beverage to an intoxicated person where there is a second appearance is doubled, which would be a totat of $1,000. Adding the two togefher results in a presumptive pena4ty of $1,500. 6. The City argues that the fact that the December 20 violation followed so ciosely upon an identical September 6 violation (when the Council acted on it on December 17), supports a strong penalty, such as an increased fine and a closure. The City also argues that Mr. Reaney's behavior at the City Council hearing on December 17 suggests that there should be an upward departure from the presumptive penalty. Based upon the foregoing Concfusions, the Administrative Law Judge makes the following: RECOMMENDATION THE ADMINISTRATIVE LAW JUDGE RESPECTFULLY RECOMMENDS: that the City Council take adverse action against the licenses of M. Reaney, lnc., by imposing a presumptive penalfy of $1,500 and a suspension of ten consecutive days, stayed for a period of 18 months upon the condition of no similar violations. Dated this ��day of September, 2004 .�/�� � � �. /�.�( ALLAN W. KLE{N Administrative Law Judge Reported: Taped MEMORANDUM The on{y di�cult question presented by this case is whether or not the presumptive penalty is strong enough, given a recent prior violation and Mr. Reaney's apparent dis�egard for the statutory standards. The Administrative Law Judge does not believe that the facts justify going as far as LIEP has recommended, but he does believe that the facts justify doing something above the presumptive penalty. Of course, it is up to the Council to make the final decision on the penalty, and going so far as LIEP has recommended would not be unreasonable. 5 0�-1 ��v One of the police officers who regufarly patrols the Payne Avenue area defended the decision not to take Amy Robson and Ricky isaac to detox by pointing out "iYs an everyday occurrence to have intoxicated people on Payne Avenue.° The area around Reaney's has plenty of bars, and Isaac was known to wander in and out of severai of them in a day. He was well known to the officers. One of the o�cers implied that he was one of many "street people" who inhabit the area and drift through the bars. The sfafute and the City code both prohibit fhe sale of intoxicating beverages to person who are obviously intoxicated, and the City code requires licensees to maintain order and sobriety in their place of business. The fact that the first citation and fine did not seem to cause a change in the atmosphere at Reaney's certainly justifies the higher fine imposed by the Matrix. The recency in time between the two violations, and Mr. Reaney's behavior at the first hearing justify an upward departure. The Administrative Law Judge believes that a stayed suspension of the license would be a reasonable departure, but also believes that the City Council may exercise its discretion to go beyond that penalty, ali the way up to the higher fine and executed suspension recommended by LIEP. A.W.K. : �