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05-286RESOLUTION CITY OF Presented By Referred To Committee: Date 1 WHEREAS, adverse action was initiated against the Tattoo Patlor License held by 2 3ennifer E. Cobb, dibla Planet Ink for the premises located at 1499 University Avenue West by 3 ihe Office of License, Inspections and Environmental Protection by Notice of Violation dated 4 September 29, 2004 alleging tattooing of a minor and unsanitary conditions on the premises; and 6 WHEREAS, a hearing was held before an Administrative Law Judge on 7 November 16, 2�04, and a Report was issued on December 1�, 20�4, in which the 8 Administrative Law 7udge found that there was insufficient proof of the tattooing of the minor, 9 but that there was sufficient proof of the violations of the health and safety requirements; 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 AL.J recommended that the penalty by fined in an amount of $600, despite the Office of LIEP's recommendation of a penalty of $1,000; and m WHEREA5, the Office of LTEP continued to urge that the $1,000 penalty was appropriate due to the serious nature of the unsanitary conditions, and did not appor[ion the fine between the twa alleged violations; now, therefoxe, be it RESOLVED, that the Findings of Fact and Conclusions of I,aw of the Administrative Law Judae are adopted, except as amended herein; Conclusion # 6 is amended to read as follows: 6. The Eitq Office of LIEP proposed a fine of $1,000 against Planet Ink far failure to operate its premises in a safe, sanitary manner and for allowing a minor to obtain two tattoos on its premises. , � , . LIEP did not apportion its fine recommendation amone the two allep_ed violations and ureed at the conclusion of the hearine that the fine of $1.000 was still approvriate eiven the severitv of the health and safetv violations. Conclusion # 7 is amended to read as follows A fine of $6A@ 1 000 is appropriate for the violations of health and safety regulations committed by Planet Ink, as shown in the dirty, unsanitary conditions existing on the premises between February and May of 2004. FURTHER RESOLVED, that the Recommendations of the Administrative Law Judge are adopted with the exception of Paragraph 3, relating to the appropriate amount of the fine, and the CouncIl File # �� d y � Ctteen Sheet # �� � i� 1 PAUL, MINNESOTA 1 Memorandum of the Administrative Law Judge is not adopted as the reasoning of the Council; VJ�g� 2 and 4 6 7 $ 9 10 FINALI.Y RFSOLVED, that Jennifer E. Cobb, d/b/a Planet Ink, is hereby ordered to pay a fine of $1,000 for the violation of unsanitary condirions on the premises. Said fine shall be payable to the Office of License, Inspections and Environmental Protectian within thirty days of the passage of this Resolution. A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative L,aw Judge and to the license holder. � Green SheeY Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � fYt 1� Departmentl�ce/council: Date Initiafed: v � °�— - LP — Lacense/Inspe.ction/EmironPmt - A4MAR-05 Green Sheet NO: 3025734 Contact Person 8 Phone: DeoartmeM Sent To Person Initial/Date �rginia Palmer � 0 i n n ecN n' n ro 266-8��� ASSign t icense/Ins ion/EnvironPro De artmentD'rec[or Must Be on Council Agenda by (Date): Number 2 ; A rne For RoUting 3 a or•s Ofiice a odAssi nt OrdBf 4 u ci 5 i Clerk Citv Clerk Total # of Signature Pages _(Clip All �ocations for Signature) Action Requested: Approval of the attached resolu6on memorializing adverse action taken against the Tattoo Pazlor License held by Jennifer E. Cobb, d/b/a Pianet Ink (License ID#199990003186) for the premises located at 1499 Universiry Avenue West in Saint Paul. Recommendations: Approve (A) or Reject (R): Personal Service Contracts Must Mswer the Following 4uestions: Planning Commission 1. Has this person/firm ever worked under a contract for this department? CIB Committee Yes No Civil Service Commission 2. Has this person/firm ever been a city employee? Yes No 3. Dces fhis person/firm possess a skill not normally possessed by any curtent city empioyee? Yes No Explain all yes answers on separate sheet and attach to green sheet Initiating Problem, Issues, Opportunity (Who, What, When, Where, Wby): , A Public Hearing was heid to discuss the Administrauve Law Judge's Findings of Fact, Conclusions of Law and Recoznmendations from an Admivistrative Hearing held on Noeember 16, 2004. AdvantageslfApproved: Memorialize adverse acrion taken as a result of the Adminisffative Law Judge's Findings of Fact, Conclusions of Law and Recommendations. DisadvantapeslfApproved: None DisadvanWges If Not Approved: Total Amount of CosURevenue Budgeted: ���' x� ��$'-���� ����� Transaction: Funding Source: Activitv Number: g �� p cp rypp i'rtilE (r 1 Lily� Financial Information: � (Explain) SA[NS PAUL � AAAA CITY OF SAINT PAUL Rnndy C. Kelly, Mayor January 5, 2005 OFFTCE OF THE CITY ATTORNEY ."��_ �G � MnnuetJ.Cervantu,CiryAttorney � � CtYtI DtVLS10II 400C+ryHa1f 7elephone:651266-87l0 ISWes�KellaggBlvd. Facsimile:651298-5619 Saint Paul, Minnerotn 55102 NOTICE OF COUNCIL HEARING Ms. Jennifer Cobb 1499 University Avenue West St. Paul, NIN 55104 RE: In the Matter of the Tattoo Parlor License held by Jennifer E. Cobb., d16/a Planet Ink far the premises located at 1499 University Avenue West in Saint Paul OAH Docket No. 7-6020-16228-3 Dear Ms. Cobb: Please take notice that a hearing on the report of the Administrative Law Judge conceming the above-mentioned application has been scheduled for 5:30 p.m., Wednesday, January 19, 2005, 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 dwing normal business hours. You may also present oral or written argument to the council at the Hearing. No new evidence will be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Administrative Law Judge and on the arguments made and exceptions filed, but may depart from the recommendations of such 3udge as permitted by law in the exercise of its judgement and discretion. Sincerely, � % > K,c�� �cz�.u.-� Virginia D. Palmer Assistant City Attorney cc: Diane Nordstrom, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, MN 55401 Mary Erickson, Assistant Council Secretary, 310 City Hall Christine Rozek, Deputy Director of LIEP Jun-Li Wang, Communiry Organizer, Hamline Midway Coalition, St. Paul, MN 55104-1832 Jennifer E. Cobb, 1767 Thomas Avenue, St. Paul, MN 55104 Jo Ann Hardy, 668 North Lexington Parkway, St. Paul, MN 55104 1564 Lafond Avenue ��,�:� ea�,��,arch Ce�er # { Fk AA-ADA-£EO Employer STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapo(is, Minnesota55401-2138 TELEPHONE:(612)341-7600 TTY: (612) 34b7346 December 10, 2004 Don Luna, City Clerk 170 City Hail 15 West Kellogg Boulevard St. Paul, MN 55102 �����;',� �� DEG 1 � %U�:� �� � a� �����'�?� Re: In the Matter of the Tattoo Parlor License of Jennifer E. Cobb, d/b(a Planet Ink; OAH Docket No. 7-6020-16228-3 Dear Mr. Luna: a5• �:$l� Enclosed herewith and served upon you by mail is the Administrative Law Judge's FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATIONS in the above-entitled matter. Also enclosed is the official record, with the exception of the tape recording of the hearing. The hearing tapes in this matter are being copied and sent to you at a iater date. Our file in this matter is now being ciosed. Very truly yours, Y"" � � • RICHARD C. LUIS Administrative Law Judge RCL:mo Encl. cc: iV i�i9" . Jennifer E. Cobb Telephone: (612) 349-2542 Providing Impartial Hearings for Government and Citizens An Equal Opportunity Employer Administrative Law Division & Administrative Services Workers' Compensation Hearings Division Workers' Compensation Settlemeni Division Facsimiie: (612) 3A9-2665 Facsimife: (612) 349-2691 Facsimile: (652) 349-2634 a5 �gl� 7-6020-16228-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE ST. PAUL CiTY COUNCIL In the Matter of the Tattoo Parlor License of Jennifer E. Cobb, d/b/a Planet Ink. FINDINGS OF FAGT, CONCLUSIONS AND RECOMMENDATIONS This matter came on for hearing on November 16, 2004 before Administrative Law Judge (ALJ) Richard C. l.uis in Room 41, St. Paul City Hall. Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 Kellogg Boulevard, St. Paul, MN 55102, represented the Office of License Inspections and Environmental Protection of the City of St. Paul ("City", "LIEP"). Jennifer E. Cobb (a.k.a Jenny Johnson), d/b!a Planet Ink, 1499 University Avenue West, St. Paul, MN 55104, represented herself ("Licensee", "RespondenY'). She was assisted by her daughter, who is also named Jenny Johnson. The record closed at the conclusion of the hearing on November 16, 2004. NOTICE This report is a recommendation, not a final decision. The St. Paul City Counci� will make the final decision after a review of the record. The Council may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendations herein. Under ; 310.05(c-1) of the St. Paul Legislative Code, the Council will provide the parties an opportunity to present oral or wr+tten argument before it takes final action. The parties should contact Don Luna, St. Paul City Clerk, 170 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102, (651) 266-8688 for information regarding the presentation of argument to the Council. ISSUES Shou{d disciplinary action be taken against the Tattoo Parlor License heid by Jennifer E. Cobb, d/b/a Planet Ink, for placing tattoos on an under-aged giri and for failing to comply with appiicable heaith and safety requirements?; and What is the appropriate level of discipline? The Administrative Law Judge recommends that the Licensee be disciplined only for violation of health and safety requirements, in the amount of $600. Based on ail the proceedings herein, the Administrative Law Judge makes the foilowing: � p5-a�t� FINDINGS OF FACT 1. Shortly before February of 2004 {in December 2003 and/or January 2004), C.H., a high schooi sfudent in St. Paul, had two tattoos piaced on orjust under her skin. One is a large tattoo depicting a musical note, and is located on the upper area of one of her shoulders. i"he second, smailer tattoo is a star, located behind ona of her ears. C.H. was born on January 18, 1987, so she was eifher 16 or 17 years old when the tattoos were created. 2. In February, 2004, C.H. was modeling a new dress for her mother, J.H. J.H. asked C.H. to turn around in the dress and C.H. declined. After the mother insisted and the daughter complied, d.H. discovered her daughter's tattoos. J.H. had forbidden her daughter from being tattooed, and both mother and daughter knew it was iliegal in St. Paui to administer a tattoo to anyone under age 18.� 3. J.H. asked her daughfer where she received the tattoos, and C.H. responded that it was "at Planet lnk across University Avenue from the Perkins Restaurant". C.H. told her mother that she and a friend went into the place and the man did not ask for identification but let each of them "vouch for each other" about their ages. 4. J.H. was upset that her daughter was abie to get a tattoo illegaliy, and contacted the St. Paui Office of License Inspections and Environmentaf Protection (LIEP) to make her concerns known. Sometime in March, 2004, she visited Planet Ink's establishment at 1499 University Avenue. She asked no specific questions about her daughter's allegations, but learned only that the establishmenYs personnel were aware that one had to be 18 years old to receive a tattoo. During her short visit, J.H. noticed that the premises had a"funky smell" to the point that it "stunk real bad" and was „ aPPallingly dirty a 5. C.H. requested subsequently that a health inspection be perFormed at Planet Ink, based on her observations. During the late afternoon of March 12, 2004, Barbara McMonigal-St. Dennis, an inspector with LIEP's Environmental Health Division, spent nearly 90 minutes inspecting Planet Ink's premises, and found many ifems of health and safety concern 5 The inspecior found that J.H.'s complaint about a dirty, unciean tattoo shop was valid. She observed soiled, unsanitary areas throughout the premises. Following the inspection, McMonigal-St. Dennis discussed the situation with the owner, Jennifer Cobb, who shut the business down voluntarily to pursue the "massive cleaning and sanitizing" needed to put the premises in order. 6. Among the deficiencies observed by McMonigal-St. Dennis on March 12, 2004 were: ' See St. Paul Legislative Code, § 367.05. Z Testimony of J.H. C.H. did not testify. 3 Testimony of J.H. ° Ex. 6, �etter from J.H. to Chsistine Rozek, Deputy Director of LIEP, 3l18/04. 5 Ex. 7, Emergency Inspection Report, 3/12/04. 6 Ex. 3, Memo from McMonigal-St. Dennis to Christine Rozek. 2 05-�Y>�e ta) (b) (c) (d) (e) �fl A large "Buzz Lighiyea�' toy on the counter used for breaking down tattoo equipment. The counter should be kept c{ear; Soiled floors; Inadequate or no sanitizer solufion fo clean the area; Damaged vinyi flooring (an unapproved surface); Improperly stored tattooing needles; Improper use of the "autoclave" device used to sterilize tattooing equipment; (g) Dirty garbage and refuse storage area, facility dirtied in general by cigarette bufts, burn marks, seeds and debris from a bird cage, personal care items strewn about, dirt and debris throughouf much of the premises; ��; ��) �) Improper wall surface (bare, unsealed wood); Inadequate, incomplete records of customer contacts; and Cigarette butts found in a work area (evidence of smoking in a prohibited location).' 7. Ms. McMonigal-St. Dennis re-inspected the Planet ink facility on March 16, 2004 and authorized it to re-open because substantial progress had been made to clean up the premises. The City has not shut down Planet Ink since then, but the establishment has closed down voluntariiy fior remodeiing at certain times. 8. On April 15, 2004, City License Inspector Richard Jents met with Planet ink's owner to review its customer records. No records, including the consent forms for December 2003 and January 2004, revealed the name of G.N. Jents's review corroborated J.H.'s statement that her daughter was nof asked to fill out a consent form or other paperwork at Planet Ink, but failed to establish that C.H. was ever there at all. 9. A follow-up inspection by McMonigal-St. Dennis on May 17, 2004 was incomplete. The estabiishment was closed for remodeling of the floors and counter areas. Also on May 17, Jennifer Cobb (owner of Planet Ink) provided the inspector with a"Daily Duties" sheet stating Pianet Ink's policy for consent forms, cleaning counter areas, breaking down of tattooing equipment, trash removal and floor maintenance. 10. On June 28 and 30, 2004, a flooring installation contractor by Planet lnk presented plans at the LIEP Office for replacing the floor at Planet Ink with conforming material. 11. Ms. McMonigal-St. Dennis returned for a foliow-up visit to Planet Ink on October 26, 2004. She was escorted around the sho� by Jennifer Cobb. By then, the Licensee had spent $5,000 to renovate the premises. She inspector found that Studio � Ex. 7, Emergency Inspection Report, 3/12/04; and Ex. 4, Inspection Report, 5/17/04. 8 Testimony of Jennifer Cobb. 3 �� �-�6�e 1 was locked from the inside and couid not be accessed (the tattoo artist would ciimb in to open it, and he was absent). Taftoo Sfudio 2 had been remodeled, with a new counter and flooring maferial. The business's record-keeping was better, but still deficient. The picture IDs of customers were copied on the back of their release forms, but some of the release forms were missing dates, some were unsigned by the customers, and none of them recorded fhe name of the tattoo artist who worked on the customer(s) identified. 12. C.H. told her mother either that the tattooist who worked on her was a light- skinned African-American mafe or a Latino ma1e. Planet Ink has never employed or used an African-American tattoo artist. It has employed two Latino tattoo artists, both of whom were hired on or after April, 2004. 13. The tattoo artists at Planet Ink are independent contractors. They charge so much for each job and give back one-ihird of the fee to Planei Ink. Thaf is how Planet Ink is compensated for the use of the space. Neither Jennifer Cobb nor Jenny Johnson are tattoo artists. During the time when C.H. received her tattoos, there were two tattoo artists on Planet Ink's premises. The artist who used Studio 1 was a Caucasian male in his forties. The other was a Caucasian male in his twenties. The 40-something ma(e was barred subsequentfy from working at Planet Ink because he did not report (register) all the customers he serviced. On those not registered, the artist kept the entire fee and did not compensate Planet ink as required by his contract. Based on all the proceedings herein, the Administrative Law Judge makes the foilowing: CONCLUSIONS 1. The Administrative Law Judge and the City Council have jurisdiction in this matter pursuant to Minn. 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 fuifilled ali relevant, substantive and procedural requirements of law or rule. 3. Any of the foregoing Findings more properly considered Conc{usions are adopted as such. 4. The City has established by a preponderance of the evidence that Planet Ink violated St. Paul Legisiative Code § 310.06(b)(7) by maintaining dirty and unsanitary conditions at its premises located at 1499 University Avenue West in St. Paul. The Licensee does not contest the City's ailegations in this regard. 5. The City has not proven that C.H., a minor born January 17, 1987, received tattoos at Planet Ink in late 2003 or early 2004. 6. The City proposed a fine of $1,000 against Planet Ink for failure to operate its premises in a safe, sanitary manner and for allowing a minor to obtain two tattoos at its establishment. Since the City has not proven that Pianet Ink allowed a minor to obtain tattoos on its premises, it is appropriate to reduce the total penaity ($1,000 fine) proposed by the OfFice of Licensing, Inspections and Environmental Protection. � �� ; 7. A fiine of $600 is appropriate for the violations of health and safiety reguiations commifted by Pianet 1nk, as shown in the dirty, unsanitary conditions existing on the premises between February and May of 2604. Based on the conciusions above, the Adminisfrative Law Judge makes the following: RECOMMENDATIONS IT IS RECOMMENDED that the St. Paul City Cou�cil DISMISS the allegation that Planet Ink administered tattoos to a minor without checking her identificafion in December 2003 or January 2004; I7 IS RECOMMEfVDED FllRTHER that the Council AFFiRM the �indings of the O�ce of Licensing, Inspections and Environmental Protection that unsanitary conditions in violation of health and safety regulations existed on the premises of Fianet Ink; IT IS RECOMMENDED FURTNER that the fine proposed by the City's O�ce of Licensing, Inspections and Environmental Protection be reduced from $1,000 to $600; and IT IS REGOMMENDED FURTHER that the continued operation of Planet Ink be contingent on future compliance with all applicable rules and regulations and on compliance with an agreement to require customers to present picture identification to establish their age, to record the dates tattoos are administered, the customer's name and signature, the name of the tattoo artist in each instance and a copy of the customer's picture identification. -�'�► Dated this �d — day of December, 2004. � . . RICHAR C. LUIS Administrative Law Judge Reported: Taped MEMORANDUM P(anet !nk had no defense to the filthy, unsanitary conditions of its premises recorded in the inspection repo�ts and reca(led by the L(EP office's inspector in testimony at the hearing. Those ailegations are uncontested. As noted in Ms. Cobb's appeal letter of October 7, she disputes only the charge that Pianet Ink has placed tattoos on minors. Her deniai at the hearing that such a practice has ever been done at Planet Ink, and her denial that P�anet Ink has ever engaged the services of an African- American tattoo artist and assertion that no Latino artists were hired until after the incident(s) alieged, were convincing. Planet Ink has institufed a practice to require picture identification of ail customers, and to attach a copy of the customer's driver's license or other identification to the release forms it requires each customer to sign. Ms. Cobb also has terminated the services of the tattoo artist who had been cheating Planet lnk by not recording all the work he performed. lt is the City's burden to prove by the 5 � ,' . greater weight of the evidence that C.H. received her faftoos ai Planet Ink. That burden has not been met. The only evidence pointing to Planet Ink as the site where C.Fi. was taftooed is her mothe�'s statement that C.H. told her so. That evidence is hearsay, and it is the Adminisfrative Law Judge's opinion fhat it is not sufficiently reliable in this case to oufweigh fhe evidence that the tattooing did nof occur at Planet Ink. The City's case is weakened more by the convincing rebuttal by Planet Ink to the hearsay allegation that G.H. told her mother that fhe tatEoo artist was African-American or Latino. The Judge is troubled by the fact that C.H, herself has offered no evidence, written or testimoniai, that her tattoos were administered at Planet Ink. Counsel for the City argues that C.H. had no reason to lie to her mother about where she got the tattoos. The ALJ is not convinced. He believes it is natural for a minor to be deceitful about the circumstances surrounding a forbidden, illegal action that she has tried to keep secret. It is also naturaf not to want to return to the true "scene of the crime," and to try to 1ay the blame on a different tattoo shop, especialfy if she lied about her age in order to get the tattoos. It is also normai not to accompany one's parent to the place you accused falsely of creating your tattoos. Counsel for LIEP argues that a giri wanting to conceal where she got the tattoos would not have thought about claiming a specific alternative site like Planet Ink, an argument with which the judge disagrees. "Planet Ink" is a catchy, clever name for a tattoo parlor, and the location on University Avenue is central and convenient, C.H. well could have known of its existence and purpose, and thought of it as a place to blame. These speculations are immaterial -- what matters most is that the a!legaf+on is pure hearsay and should be discounted accordingly. The Judge recommends a reduction in the proposed fine, from $1,000 to $600, for the unsanitary conditions found and not contested. Counse! for LIEP suggests the conditions at Planet 1nk were so awful, as reflecfed in the record, to merit a$1,000 fine standing afone. The ALJ cannot agree. No specific evidence exists to suggest how much of the $1,000 proposed fiine is attributable to the charge of illegaliy tattooing minors and/or not checking customers for proof of age, but common sense dictates that it was worth a portion of the $1,000 total fine. Also noted is that the Licensee already spent $5,000 on renovations. The Administrative Law Judge arrived at a final recommended figure of $600 for the heaith and safety violations because they were serious and continued over some time. The recommendation for requiring presentation of a picture identification and compliance with other record-keeping procedures is that of Christine Rozek, the LIEP's Deputy Director in charge of environmental health licensing. The ALJ agrees with her recommendation because, even as late as October, 2004, seven or eight months after deficiencies were uncovered at Pianet Ink, the shop stil! was not following such basic bookkeeping procedures. R.C.L. 9 J.H. iestified aiso about the repuYation of Planet ink, based on what her daughters friends told the daughter, which the daughter then told to the witness. This multi-layered hearsay was discounted completefy by the Judge in weighing the evidence presented by the C+ty. 0