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06-1045Council File # Olo Green Sheet # �03 `l d %O RESOLUTION VJHEREAS, V one X. Moua and Mee Lee Moua d1b1a Malina's Sports Bar and Grill (License ID #200100002326) ]ocated at 691 Dale Street North in Saint Paul received a Notice of Violation dated August 10, 2006, for failure to maintain video surveillance cameras on 7anuary 22, 2006 as required by a license condition; and VVHEREAS, a hearing was held before an Adminishative I,aw Judge on September 13, 2006, and a Report was issued on October 12, 2006, in which the Administrative Law Judge found that there was sufficient proof of the violation of a license condition; and WI�REAS, the Administrative Law Judge also found that adverse action is appropriate; now, therefore be it RESOLVED, that a fine of $500.00 is imposed against all licenses held by Vone X. Moua and Mee L.ee Moua d/b!a Malina's Sports Baz and Grill ; and be it FURTHER RESOLVED that the $500.00 fine be paid within 30 days of the passage and approval of this resolution; and be it 19 FURTI�R RESOLVED that license condition number two (2) is amended to read "The license 20 holder shall maintain video surveillance cameras inside and outside the establishment. The video 21 recordings shall be kept by the license holder for at least thiriy (30) days and produced immediately upon 22 request by the Saint Paul Police Deparhnent or the Office of License, Inspections, and Environmental 23 Protection; and be it 24 25 FURTf�R RESOLVED, that the Findings of Fact, Conclusions of Law and Recommendation of 26 the Administrative Law Judge in this matter are hereby adopted as the Findings and Conclusions of the 27 City Council in this matter. 28 29 A copy of this resolution, as adopted, shali be sent by first class mail to the Administrative Law 30 Judge and to the licen holder. Requested byDeparlmentof: � � � 1 • Adoption Certified by Council Secre By: / �" /Lf!/!/�i/l�d� Approved by � aa / —^'-- - � BY' � �� CIT'Y OF SAINT PAUL, NIINNESOTA ,s� __ � Green SheetGreen Sheet Green Sheet Green Sheet Green Sheet Green Sheet � f�'la�s LP - License/Intipection/Env"uonPmt I 03-NOV-06 Contact Person 8 Phone: Rachel Gundetson Z6fi8770 MustBeon C�cuncilAgen� 15-NOV-06 / (°�,,, �y, ,.�- Dnc.Type: RESOtUiION E-0ocumentRequ'ved: Y Document Contad: Julie Kraus CoMact Phone: 266-8776 y Assign Number For Routing Order Green Sheet NO: 3034270 SentTOPerson InitiallDate 0 $.icense/IusoectiodEnviron Pro I � 1 iceo ectio ' n e entDirecfor 2 ' Attorne 3 or' Office Ma ar Ass' nt 4 ou' 5 i C! k ' Cle k Total # of Signature Pages _(Clip NI LocaEOns for Signature) Approval of the attached resolu6on memorializing adverse acrion taken against all licenses held by Vone X Moua and Mee Lee Moua d/b/a Malina's Sports Baz and Grill for the premises located at 691 Dale Sireet Noith in Saint Paul. idations: Appm�z (A) or Reject IOR Planning Commission GIB Gommittee Citil Service Commission Service Contrects MuslMswerthe Following 1. Has this persoNfifin e�,erworked under a contract for this departmerrt? Yes No 2: Has this perswUfittn eeer been a city employee? Yes No 3. Does fhis persoNfirtn possess a skill not rrortnally possessed by any cu�rert cdy employee? Yes No F�cplain all yes answers on separate sheet and atfach to green sheet Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why): A public hearing was held on November 1, 2006 to discuss the Administrative Law Judge's Findings of Fact, Conclusions of Law and Rewmmendafion from the Administrafive Heating held on September 13, 2006. AdvanWgeslfApproved; Memorialize Council action taken. DisadvanWpes IfApproved: None. Disadvanfaqes If NotApproved: Transaction: Funding Source: Financial Information: (ExPiain) CostlRevenue Budgeted: Activity Number: RECEEVED �ov 72oas MAYOR'S OFFICE �a59� � �$' �� November 3, 2006 1:42 PM Page 1 � OFFICE OF TT� CITY ATTORNEY John J Choi, CityAUOrney ��`� CITY OF SAINT PAUL crv,rDrvu,on Chrtstopher B. Colemmf, Mcryor 400 City Hall ]5 Wes[ SaintPaul, �LI"mrresota 55702 i October 17, 2006 NOTICE OF COUNCTL HEARING Vone X. Moua and Mee Lee Moua Malina's Sports Bar and Grill 691 Dale Street North St. Paul, MN 55103 ��O ��7 � Telephone: 651266-8770 Facsimite: 65I 298-5619 RE: All licenses held by Vone X Moua and Mee Lee Moua, d/b/a Malina's Sports Baz and Grill for the premises located at 691 Dale Street North in Saint Paul LicenseID #20010002326 OAH Docket No. 1 1-6020-1 7466-6 Dear Vone X. Moua and Mee Lee Moua: Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-menfioned licenses has been scheduled for Wednesday, November 1, 2006 at 5:30 p.m. in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opportwuty to file exceptions to the report with the City Clerk at any time during normai 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 I,aw Judge and on the azgusnents made and exceptions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its judgment and discretion. Sincerely, - t/ .2u� ��a�f'.�.�. Virgin�D. Palmer Assistant CityAttorney cc: Diane Nordstrom, Office of Administrative Hearings, 100 Washington Square, Suite 1700, 100 Washington Avenue South, Minneapolis, MN 55401 �/Nlary Erickson, Council Secretary Christine Rozek, Deputy Director of LIEP Vone Moua, 1332 Burke Circle, Maplewood, MN 55109 AA-ADA-EEO Employer � � �/1� �� STATE OF MINNFSOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue Soufh Minneapolis, Minnesota 55401-2135 TELEPHONE_ (612) 341-7600 TTY: (612) 341-7346 October 12, 2006 �� Shari Moore City Gerk 290 City Hali 15 b�/est Keliogg Bivd. St. Paul, MN 55102 �� v "LUti�2 �� Re: ln the Matter of the All Licenses Held by Vone X Moua and Mee Lee Moua, d/b/a Malina's Sporfs Bar and Grill, for the Premises Located at 691 Dale Street North in St. Paul, MN OAH Docket No. 11-6020-17466-6 Dear Ms. Moore: Enclosed herewith and served upon you by maii is the Administrative Law Judge's Findings of Fact, Conclusions of Law, and Recorrimendation 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 o�ce in writing or by telephone at 612-341-7448. Our fiie in this matter is now being closed. Sincerefy, ��.��-- C� 1'��,..� BARBARA L. NEILSON Administrative Law Judge BLN:� Enciosure C , Gunderson Vone Moua and Mee Moua Telephone: (612) 341-7604 Providing Impartial Hearings for Government and Citizens An Equal Opportunity Employer Administrative Law Division & Administrative Ssrvices Workers' Compensation Hearings Division Workers' Compensation Settlement Division Facsimile: (612) 349-2665 Facsimile: (612) 349-2691 Facsimiie: (612) 349-2634 � �(�� 4 �� 11-6020-17466-6 STATE OF NfINNESOTA OFFICE OFADMINISTRATNE HEARINGS FOR THE ST. PAUL CITY COUNGIL In fhe Matter of All Licenses Held by Vone X Moua and Mee Lee Moua, d/b/a Malina's Sports Bar and Grill, for the Premises Located at 691 Dale Street North in St. Paul, Minnesota. FINDINGS OF FACT, CONCLUSIONS OF LAW,. AND REGOMIIAENDATION The above matter came on for hearing before Administrative Law Judge Barbara L. Neilson on September 13, 2006, at City Hall in St. Paul, Minnesota. The record closed at the end of the hearing that day. Rachel Gunderson, Assistant City Attomey, A00 City Hail, 15 West Kellogg Bfvd., St. Paul, Minnesota 55102, appeared on behalf of the OfFice of License, Inspections and Environmental Protection ("LIEP"). Vone Moua and Mee Moua, 691 Dale Street North, St. Paul, Minnesota 55103 owners of Malina's Sports Bar and Grill, appeared without counsel on their own behalf. S7ATEMENT OF ISSUE Should action be taken against the licenses held by Vone X Moua and Mee Lee Moua, d/b/a Mafina's Sports Bar and Grill, because they failed to maintain video surveillance cameras inside and outside their establishment on January 22, 2006, and thereby violated a condition placed on their license? As discussed more fully below, the Administrative Law Judge concludes that the Licensees did fail to properly maintain video surveillance cameras inside and outside their establishment on J�nuasy 22, 2006, and that an adverss licensing action is justified. Based upon all the proceeclings herein, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. The Licensees, Vone X Mova and Mee Lee Moua, d/b!a Mal[na's Sports Bar and Grill, have held various City licenses, including entertainment, liquor on-sale, 2 a.m. ciosing, and restaurant licenses, since approximately 2001.' ' Tesfimony of Kristina Schweinler; Ex. 1-3 through 1-14. s � ,L' ��'f� 2. The conditions imposed on the Licensees' licenses include the following requirement: "The license holder will maintain video surveillance cameras inside and outside the establishmenf." This condition was placed on the licenses at the time they were originally issued in approximately 2001 at the request of the community and fhe District Council because there had been problems at the location in the past, when it was Qperated by other individuals? When conditions are imposed on a City license, they are signed by the licensee and attached to the license. Upon issuance and renewal of licenses, conditions that have been imposed by the license are printed on the license 3 3. The Licensees were aware of the surveiilance camera condition. They installed two new surveillance camera systems at Malina's to comply with this requirement. The system uses VHS recorders. Typically, the cameras record for 24 hours on�one tape, and then record over that tape 4 4. It was the Licensees' understanding that the surveillance camera condition would only be imposed for one year. After the Licensees had been in operation for about one year, they discussed removal of the surveillance condition with representatives of the District 7 Council. The District Council told the Licensees that the condition should remain on_ the license because of the history of this establishment but the L�censees shouldn't worry about the condition if they continued to run the establishment well. There is no evidence that the Licensees ever discussed removal of the condition with the City's Office of License, Inspections and Environmental Protection (LIEP). 5. Some other bars iocated in the vicinity of Malina's Sports Bar and Grill do not have surveillance cameras.' However, a number of establishments in St. Paul do have surveillance camera conditions, since surveillance cameras are important in monitoring events and can be of assistance in quickly solving crimes. 6. On January 22, 2006, at 2:09 a.m., St. Paui Police responded to a report that there was a fight in the parking lot of Malina's and shots had been fired. Malina's was closed at the time. The complainant told the police that he observed ten to twenty individu�ls smash�n� the windows of his friend's vehicle, saw two individuals pull guns out of their jackets, and thought he heard gunshofs. The owner of the.vehicle told police that he left Malina's, got into his vehicle, and then saw numerous individuals throwing bottles at his windows. He went back into the bar. When he returned, he found that his windshield and five other windows of his vehicle were broken. He did not hear any gunshots. The police report issued regarding this incident noted that the Z Testimony of K. Schweinler; Ex. 1-2. 3 Testimony of K. Schweinler. 4 Testimony of V. Moua. 5 Testimony of V. yloua. 6 Testimony of K. Schweinler. ' Tesfimony of V. Moua. $ Testimony of K. Schweinler. P] � LP'lD �� o�cer "was unable to look at surveillance, as the bar was closed at this time." Although Malina's was closed at the time, employees were still inside, cleanin�. There is no evidence that the police officers knocked on the doos to request the tape.� 7. On January 24, 2006, St. Paul Police O�cers aitempted to . obtain a videotage from Malina's for January 22, 2006. The videotape provided by Malina's to the police was dated January 15, 2006, and had not been replaced so that no video recording had been made of the incident �� On prior occasions, fhe police requested tapes from Mafina's right away, rather than waiting until almost 36 hours later.' However, it is not _unusual for such an amounf of time to elapse before the police make a request for a videotape. Here, since the incident occurred early on a Sunday moming, the report most likely was not reviewed by St. Paul Police Department command staff until the foflowing Monday morning (January 23, 2006), and was not sent to Sgt. Kenneth Jensen until Tuesday, January 24, 2006, when the videotape was requested.' � 8. A videotape regarding the incident would have been very helpful to the Police in this case. They were not otherwise able to find a suspect. In addition, the Asian Gang Unit is interested in foilowing up on the allegation that guns were seen. 9. After the LIEP Office reviewed police reports reflecting the faifure of Malina's to produce a videotape with respect to the January 22, 2006, incident and consufted with the City Attorne�s Office, L1EP determined that the Licensees had violated the condition of their license requiring the maintenance of video surveillance cameras inside and outside the establishment. LIEP considers the parking lot to be part of the establishment.� 10. LIEP issued a Notice of Violation on Au�qust 10, 2006, nearly seven months after the January 22, 2006, incident occurred.� LIEP recommended that a $500 fine be assessed based upon the penalty matrix set forth in the St. Paui Legislative Code, since Malina's f�as not" previously been found to have violated this condition. The Notice of Violation informed the Licensee of the nature of the violation, the proposed fine, and the opportunity to request a hearing before an Administrative Law Judge.�' 11. By letter dated August 15, 2006, the Licensees requested a hearing before an Administrative Law Judge.� 9 Ex. 2; Testimony of K. Schweinler. ' Testimony of V. Moua. �� Ex. 3; Tesfimony of Sgt. Kennath .lensen. t2 Testimony of V. Moua. 73 Testimony of Sgt. Jensen. " Testimony of Sgt. Jensen. � Testimony of K. SchweiNer. 76 Exs. 2, 3, 4, Testimony of K. Schweinier, V. Moua. "Testimony of K. Schweinler; Ex. 4. 18 Testimony of K. Schweinler; Ex. 5. 3 > � �� 12. On August 30, 2006, the City Attorney's office issued the Natice of Hearing setting the hearing for September 13, 2006.' The hearing took place as scheduted. 13. On at least one other occasion (January 6, 2006), St. Paul Police requested a videotape from Mafina's in connection with an incident involving criminal damage to property and Malina's was unable to tum over the videotape because its videotape system was not working? Based upon the above Findings of Fact, the Administrative Law Judge makes fhe foViowing: CONCLUSIONS OF LAW 1. The Administrative Law Judge and the St. Paul City Council have jurisdiction to hear this matter pursuant to St. Pauf Legisiative Code § 310.05. 2. The City of St. Paul gave proper notice of the hearing and has fulfilled all relevant substantive and procedural requirements of law and rule. 3. As the parry proposing that certain action be taken, the City has the burden of proving facts at issue by a preponderance of the evidence?' 4. The St. Paul Legislative Code authorizes the City Council to take adverse action against any or all of the licenses held if "the licensee or applicant has failed to comply with any condition set forth in the license, or set forth in the resolution granting or renewing the license." 5. The St. Paui Legislative Code provides that, for a first violation, the presumptiv� sanction for violation of a condition placed on the license is a fine in the amount of $500 2 The City Council may deviate from this penalty in an individual case where the Council finds that substantial and compelling reasons exist making it more appropriate to do sp za 6. There are no substantial or. compelling reasons in the record to justify a deviation from the presumptive penalty in this case. t9 Ex. 6. 2D Testimony of Sgt. Jenkins; Ex. 7. Z ' Minn. R. 14�0.7300, subp. 5. 22 St. Paul Legislative Code § 310.06(b)(5). Z3 St. Paul tegislative Code § 310.05(m)(1). za � � . vc�-�a�� m Based upon the above Conclusions of Law, the Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RECOMMENDED that the St. Paul City Council take appropriate action against the licenses held by Vone X Moua and Mee Lee Moua, d/b/a Malina's Sports Bar and GriIL Dated: October 12, 2006. � �° ARBARA L. NEILSON rC�'�� Administrative Law Judge Reported: Tape recorded (no transcript prepared). 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 and may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendation. Under St. Paul Legislative Code § 310.05(c-1),. the City Council shall provide the licensee an opportunity to present oral or written arguments alleging error in the application of the law or the interpretation of the facts and to present argument related to the recommended adverse action contained in this Report. Parties should contaci Rachet Gunderson at the address above to leam the procedure for filing exceptions or presenting argument. The St. Paul City Council is requested to serve notice of its finai decision upon each party and the Administrative Law Judge by first-class mail. MEMORANDUM The Licensees initially contended' that the only reason they were unable to provide a videotape with respect to the January 22, 2006, incident was because the police request for the videotape was not sufficiently prompt and ttie videataae at issue had been recorded over the next day. However, it is clear from the testimony of Sgt. Jenkins that the tape recording p�ovided by Malina's was dated January 15, 2006, suggesting that Malina's had failed to properly, record events between January 16, 2006, and January 22, 2006. Although the City could do more to ciarify with licensees its expectations that videotapes will be held for 30 days before being reused, it was not reasonable for Licensees to immediately record over an existing tape the next day. Because no recording was made on January 22, 2006, it is apparent that the Licensees here failed to properly maintain video surveillance cameras on that date. Morenver, this is not the first time that the Licensees have failed to produce a videotape requested by St. Paul Police. The record supports imposition of an appropriate fine. B. L. N. 5