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06-423Council File # ��o - y�3 Green Sheet # 3 Q 3b _3 51 RESOLUTION CITY OF SAINT PAUL, MINNESOTA Presented By 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 WIIEREAS, adverse acrion was iniriated against all licenses held by Vone X. Moua and Mee Lee Moua, d/b/a Malina's Sports Bar & Grill (License ID#010002326) for the premises located at 691 Dale Street North in Saint Paul by Norice of Violarion dated October 25, 2004 alleging a failure to take reasonable and adequate steps to prevent persons from leaving the licensed premises with alcohol on July 4, 2004; and WHEREAS, the matter was heazd before Administrarive Law Judge Allan Klein on December 2, 2004; and WHEREAS, the Report of the ALJ issued on January 4, 2005 found that while it was clear that a patron walked out of the establishment with alcohol, the City had not proved that the establishment did not take reasonable and adequate steps to prevent such action in putting two bouncers at each door; and WHEREAS, the ALJ Report recommended that no adverse action be taken against the establishment in connection with the incident other than noting it in the event of future violafions; and WHEREAS, there have been no similar violarions at the establishment in the time elapsed since the hearing and the present; now, therefore be it RESOLVED, that no adverse acrion be taken against the licenses held by Vone X. Moua and Mee Lee Moua, d/b/a Malina's Sports Bar & Grill (License ID#010002326) for the premises located at 691 Dale Street North in Saint Paul from the incident on July 4, 2004. FURTHER RESOLVED, that the Findings of Fact, Conclusions of Law and Recommendation of the ALJ in this matter are hereby adopted as the Findings and Conclusions of the City Council in this matter. A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and to the license holder. AdoptedbyCouncil: Date lf!� 3 i Gi�L`��� Adoption Certified by Council Secretffi BY � l�J��Ii Approved by Mayo - at S'/— ��o B Requested by Departrnentof �� �_• I � Fortn Approved by BY � Form Appro by By (.� ` Submission to Council � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � � Gf" O� �/� -3 �p — ticense/Inspec6on/EnvironPiox Contaet Person 8 Pfione: Vrginia D. Palmer 266-8710 o� �R-� � Assign Number For Routing Order Totai # of SignaW re Pages _(Clip Ail Loeations for Signature) Green Sheet NO: 3030351 Departrnefk Sent To Person 0 i s �o nviron Pro 1 icenseltns fiodEnvironYro De entDirector 2 ' Attom 3 or's Office Ma orlAssistant 4 ouocil 5 i G7erk Gti Clerk Action Requested: Approval of the attached resolution recommending that no further adverse action be taken against all licenses held by Vone X. Moua and Mee Lee Moua, d/b/a Malina's Sports Baz & C,rill (License ID#010002326) for the premises located at 691 Dale Street North in Saint Paul. dations: Approve (A) or Reject (R): Planning Commission CIB Committee Civil Service Commission Service Contracts Must Answer the Following Questions: 1. Has this persoNfirtn ever worked under a contrac[ for this department? Yes No 2. Has this personffirm ever been a city empioyee? Yes No 3. Does this persoNfirm possess a skill not normally possessed by any current city employee? Yes No F�cplain all yes answers on separate sheet and attach to green sheet Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why): An Admiuistrative Hearing was held on December 2, 2004. The ALJ recommended no adverse action and LIEP's attorney did not file exceptions. Licensee has waived the public hearing. AdvantaaeslfAoproved: Matter can be closed without a public hearing. DisadvantageslfApproved: None. Disadvanta�aes If Not Approved: 'otal Amount of Transaction: Fundin5� Source: Financial Infortnation: (Explain) CostlRevenue Budgeted: Activiri Number. ��, erY�n i`°n�+�,'i f` ���� ' �. ,�� � ��� � January 4, 2005 STATE OF MINNESOTA OFFICE OF ADMIN7STRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 (// ��v - �O� `� �_ ��.�. .�� . ....% r�.' '�� .m. _ °_� �an� � � ��il� .�--'..�� � 9 � 5$ ��� )(u `m : t �u . ��` 5Y . � . ��.e y 'l � E �� � Don Luna, City Clerk 170 City Hall 15 West Kellogg Blvd. St. Paul, MN 55102 RE: In the Matter of all Licenses Held by Vone X. Moua and Mee Lee Moua, d/b/a Malina's Sports Bar & Grill for the Premises Located at 691 North Dale Street in Saint Paui; License ID No. 20010002326; OAH Docket No. 6-6020-16287-6 Dear Mr. Luna: Enclosed herewith and served upon you by mail is the Administrative Law Judge's Findings of Fact, Conclusions, Recommendation and Memorandum in the above-entitled matter. Also enelosed is the o�cial record, with the exception of the tape recording of the hearing, a copy of which will be sent to you under separate cover. Our file in this matter is now being closed. Sincerely, �..i )�'- �� � . � ALLAN W. KLEIN Administrative Law Judge AWK:cr Encl. cc: Virginia D. Palmer Vone X. Moua and Mee Lee Moua Telephone: 612/341-7609 Providing Impartial Hearing for Govemment and Citizens An Equal Opportunity Employer Administrative Law Section & Administrative Services (612) 341-7600 • TTY No. (612) 341-7346 • Fax No. (612) 349-2665 �� o� -��� OAH DOCKET NO. 6-6020-16287-6 STATE �F �Ni�v�vESOT ; OFFICE OF ADMINISTRATIVE HEARINGS FOR THE SAINT PAUL CITY COUNCIL In the Matter of all Licenses Held by Vone X. Moua and Mee Lee Moua, d/b/a Malina's Sports Bar & Grill for the Premises Located at 691 North Dale Street in Saint Paul; License ID No. 20010002326 , FiND1NGS OF FACT, CONCLUSIONS, RECOMMENDATION and MEMORANDUM The above-entitled matter came on for hearing before Allan W. Klein, Hearing Officer, on December 2, 2004, in the Saint Paul City Hail. The hearing took less than half a day, and the record closed on December 2. Virginia D. Palmer, Assistant Saint Paul City Attorney, 400 City Hall, 15 West Keiiogg Boufevard, Saint Paul, MIV 55102 appeared on behalf of the O�ce of License, Inspections and Environmental Protection. Vone X. Moua and Mee Lee Moua appeared on their own behalf, without benefit of counsel. NOTICE This report is a recommendation, not a final decision. The Saint Paul City Gouncil 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 will provide Malina's an opportunity to present oral or written argument to it before it takes final action. Malina's should contact the Saint Paul City Clerk to ascertain the procedure for presenting argument to the Council. STATEMENT OFISSUE Shouid disciplinary action be taken against the Moua's licenses because they failed to take reasonable and adequate steps to prevent persons from leaving the premises with an alcoholic beverage? Based upon ail the proceedings herein, the Administrative Law Judge makes the following: � OG '�F�3 FINDINGS OF FACT 1. Malina's Sports Bar & Grill is located at 691 North Dale Street, between Van Buren and Minnehaha. It is on the west side of Dale Sfreet, south of Minnehaha and north of Van Buren. ' 2. There are two doors into and out of the bar. Both face onto Dale Street. The main door is on the north end of the building, facing Dale Street, while the secondary door is on the soufh end of the building, also facing Dale Sfreet. A person driving south on Dale Street in an automobile would be coming downhill from an overpass as they would approach the comer (which has a stop light) of Minnehaha and Dale. Malina's is on the soutFiwest corner of that intersection, and persons using the doors of Malina's are very visible to cars traveling south on Dale Street. 3. Early on the moming of Sunday, July 4, 2004, Saint Paul Police Officers Robert Vetsch and Thomas Tanghe were proceeding south on Dale Street when they observed roughly 15 people congregated around the south door of Malina's. These people appeared to have jus# come out of Malina's, as more were still coming out of the south door. The officers observed one person coming out of the south door was carrying a bottle. They pulled over and parked along Dale Street and got out of the squad car. They determined that the individual carrying the bottle was Ger Ner, who lives in Minneapolis. They told Ner that it was a violation of a city ordinance to be consuming alcohol on the sidewalk. Ner replied that he didn't know he was not suppose to do that. They told him to return the beer bottle to one of the two bouncers who were just inside the south door. Then one of them (O�cer Vetsch) walked up to the bouncer and reminded him that he could not let alcoholic beverages leave the bar. The bouncer acknowledged that. The officers decided just to give Ner a warning, but they decided to write an incident report for the bar and forwarded it to the Department of Licenses, Inspections and Environmental Protection. A report was written that night, and is in the record as Exhibit 2. 4. The report ended up on the desk of Christine Rozek, the Deputy Director of LIEP. She reviewed Malina's computerized record. She learned that Malina's holds an on-sale-two a.m. closing-Sunday liquor license, as weli as various entertainment and restaurant licenses.� Rozek also looked for a history of police calls and a pattern of violafions, but found no prior violations. She determined that Malina's was not a "problem estabiishment." 5. Rozek was aware that the location at 691 North Dale had been a problem in the past, when it was under different ownership. It had previously been known as the "Bourbon Bar," which was described as a"blight on the neighborhood." Under the prior ownership, the Bourbon Bar had a history of fights and catered primarily to a motorcycle crowd that was not well liked by many of the neighbors. When Moua was seeking to ' Exnibit 1. Z This description came from Tait Danieison, the lead community organizer for District 7. C1= OG -��3 buy the bar, he met with the District 7 Planning Council, and agreed to a lot of special condifions which they requested prior to recommending his licensure. Tait Danieison, the lead community organizer, stated thaf the bar was now a reai benefit to the neighborhood, it had become a community meeting spot, and that Moua had dealt weli with his neighbors. He said the Planning Council was "very grateful" for what Moua had done to improve Malina's. 6. Moua and his wife are both licensed social workers, and they maintain a private practice in offices located above the bar. They have assisted numerous Hmong (and other nationality) new arrivals in adjusting to their new surroundings in the city. 7. Rozek decided to refer the July 4 incident to the City Attorney's offce. On October 25, 2004, the City Attorney's office issued a Notice of Violation, indicating that LEIP had recommended adverse action against the licenses and a$500 fine. The Notice contained the following language: On July 4, 2004 at approximately 1:30 a.m. officess were on tour neas the area of Malina's Sports Bar when they observed a crowd of about 15 people on the sidewalk, one of whom was holding a bottle of beer. Officers spoke to the individual, who admitted that he had purchased the beer inside the bar and had walked outside with it. Despite the presence of bouncers at the door, nobody attempted to stop him from leaving with the beer. Saint Paul Legislative Code § 409.08 (15) states that "each on- sale licensee shall have the responsibility of taking reasonable and adequate steps to prevent persons from leaving the license premises with a bottle, can or glass containing any alcoholic beverage, and the failure to do so may subject such licensee to adverse action against his or her license." 8. On October 29, 2004, Vone Moua submitted a letter to the City Attorney requesting a hearing. On November 12, 2004, a Notice of Administrative Hearing was issued, setting the hearing for December 2. The hearing did go forward on December 2, and lasted for half a day. 9. The weekend ciosest to July 4 is the time of the Hmong Soccer Tournament in Saint Paul. This tournament draws "thousands and thousands" of people from around the country. The tournament is held in Como Park, and Malina's Sports Bar is a focus of activity for the event. Vone Moua expected a large crowd that weekend, and prepared for it by hiring extra bouncers and taking other steps in an attempt to maximize the safety of his patrons. The Saint Paul Police Department was also aware of the event, and directed officers to pay particular attention to five or six Hmong-oriented bars in the City. Officers Vetsch and Tanghe had been directed to pay 3 F�chibit 3. ' Exhibit 4. 5 Exhibit 5. 6 Testimony of Tait Danielson. C� D� - h�o33 particular attention fo Malina's because of the large number of people expecfed fo be there. 10. Officers Tanghe and Vetsch did, in fact, pay pasticular atEention to Malina's that weekend. They wenf by it several times on Friday July 2, Saturday July 3, and Sunday July 4. They stopped at least once on July 2 and at least once on July 3 to deal with various matfers, but wrofe no tickets and made no arrests. But the bar was very busy during that period and there were many, many people there. 11. In preparation for the crowds expected for the soccer tournament, Moua hired extra bouncers. At the time of the incident eariy in the morning of July 4, he had two bouncers at the south door and two bouncers at the north door. At each door, the two bouncers were facing each other. lt was a warm night, and there was no reason for anyone to be wearing a bulky jacket or other clothing that would allow them to hide a bottle. When Officers Vetsch and Tanghe saw Ner walk out with a bottle in his hand, they decided that the bouncers must have knowingly let him go out and failed to stop him. That is why they wrote up the report. Based upon the foregoing Findings, the Administrative Law Judge makes the following: CONCLUSIONS 1. The City Council of the City of Saint Paul and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. § 14.55 and § 310.05 of the City's Legislative Code. 2. The City is given proper Notice of the Hearing in this matter, and has fulfilled all relevant substantive and procedural requirements of law and rule. 3. Minn. Stat. § 409.08 (15) of the City's Legislative Code provides that "each on-sale licensee shall have the responsibility of taking reasonable and adequate steps to prevent persons from leaving the licensed premises with a bottle, can or glass containing any alcoholic beverage...." 4. Putting two bouncers at each door constitutes "reasonable and adequate steps" to prevent alcoholic beverages from being taken out of the establishment. The incident with Ger Ner was an isolated one, and it is insufficient to demonstrate that Moua failed to take "reasonable and adequate steps." He did not violate the Legislative Code. Based upon the foregoing Conclusions, the Hearing Officer makes the foliowing: RECOMMENDATION IT IS RESPECTFULLY RECOMMENDED: That the Saint Paul City Councii not take any adverse action against the licenses held by Vone X. Moua and Mee Lee Moua G� � - �f�'.3 d/b/a Malina's Sports Bar & Griil in connecfion with fhis incident, but that the incident be recorded for use in any future proceedings conceming similar violations. -/'� Dated this �day of January, 2005 Reported: Taped No transcript prepared l�J�� V v � . ALLAN W. KLEIN Administrative Law Judge MEMORANDUM The evidence cleariy supports the aliegation that a patron did walk out of Malina's carrying a bottle of beer early in the morning of July 4. The incident did occur. But what the Code requires is that the Licensee take "reasonable and adequate steps" to prevent that from happening. The question of whether or not the Licensee has violated the Code focuses on whether or not the Licensee took "reasonable and adequate steps." Under the circumstances of the Hmong Soccer Tournament and the large crowds that were at Malina's that weekend, the fact that there was only this one incident is remarkable. As Tait Danielson put it, "We [District 7 Planning Council Staff] were very pleased that this was all that happened. We say `Bravo!"' Based on all of the facts, the Administrative Law Judge does not believe that the Mouas failed to take reasonable and adequate steps to prevent the incident firom occurring, and thus, no discipline is warranted. �I_�Ti�:�