06-892Council Pile # 06 ��� o�✓
Crreen Sheet #„>0_7� f O �
RESOLUT`ION
CTTY OF SA1NT PAUL, MINNESOTA
�O
Presented By
Referted To
Committee: Date
WHEREAS, DRJ, Inc. dfbfa Diva's Overtime Lounge, received a Notice of Violation
dated May 17, 2006, far after hours display of alcoholic beverages on April 8, 2006 ; and
WFTEREAS, a hearing was held before an Administrative Law Judge on August 3, 2006 and
a Report was issued on September 5, 2006, in which the Administrative Law Judge found that there
was sufficient proof of the violation of after hours display of alcoholic beverages; and
WHEREAS, the ALJ also found that adverse action is appropriate; now, therefore be it
RE50LVED, that the Findings of Fact of the Admixustrative Law Judge in this matter are
hereby adopted as the Findings of the City Council in this matter; and be it
FURTHER RESOLVED, that the Conclusions of Law of the Administrative Law Judge in
this matter are hereby adopted as the Conclusions of Law of the City Council in this matter, except
that the Council does not adopt Conclusion of Law Seven; and be it
FURTHER RESOLVED, that in place of Conclusion of L,aw Seven the Council adopts the
following Conclusion of Law:
7. There are substantial and compelling reasons to justify a
deviation from the presumptive penalty in this case. Those
reasons include:
1. From finding of Fact Three: Sgt. Gromek's observation of Diva's
was prompted by complaints from neighbors.
2. From Finding of Fact Five: Security personnel were not controllang
the entrance into Diva's between 1:45 and 2:15 am. Between 2:15
a.m. and 2:36 am. 50 to 60 people left and then re-entered the
establishment. Noemployeesoftheestablishmentpreventedpatrons
from re-entering the establishment after 2:00 a.m.
3. From Finding of Fact Six: Diva's security failed to intervene in
disturbances between 1:45 and 2:30 a.m. where: 1) a man urinated
around the corner of the building, 2) a man left the bar carrying an
drink and stated he was going to have his cocktail and go to another
party at another bar; and 3) a man grabbed a woman who was yelling
and carried her to a car.
4. From Finding of Fact Seven: Diva's employees were stalling for time
2
3
4
7
10
I1
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
5.
prior to opening the doors when officers Irnocked on the door at 229
a.m. During this time patrons were leaving out the back doar. 01 _�Oi�
�0 !
From Finding of Fact Nine: Between 40 and 75 people inside the
establishxnent after 2:30 a.m. and there was evidence they were
drinking or in possession of alcoholic beverages.
6. From the attached Memorandum: Aiva's staff testimony at the
hearing before the Administrative I,aw Judge was mistaken as to the
time of a car accident which, rather than at 2:00 a.m., occurred at
9:07 p.m. and the entire incident was over by 11:45 p.m. Staff
testunony was inconsistent with the police xeports.
and be it:
FLTRTHER RESOLVED, that a fine of $500.00 is imposed against ali licenses held by DR7,
Inc. dfbfa Diva's Overtime Lounge; and be it
FURTAER RESOLVED, that the costs of the Administrative Aearing in the amount of
$2,800 be paid by DRJ Inc., d!b!a Diva's Overtime Lounge; and be it
F[JRTHER RESOLVED, that the 2:00 a.m. Closing license by DRJ Inc., dlbJa Diva's
Overtime Lounge is hereby revoked effective October 4, 2006; and be it
FINALLY RESOLVED that the $500.00 fine and $2,800 costs be paid within 30 days ofthe
passage and approval of this resolution.
A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative
Law Judge and to the license holder. �: eD � lOP�/��
f�� ��
�b L
Requested by Department of:
rfj � �1
Adoption Certi£ied by Council Secsetany
BY !' , `.�Sd/Z
Approv b y� Date �(� ��O,�j
By:
� Green Sheet Green Sheet Green Sheet Green Sheet Green SNeet Green Sheet �
b� 8��
DepartmenUofice/council: Datelnitiated:
LP — Li�eosennspeceo�ohronrro� 21SEP-06 Green Sheet NO: 3032980
Co�ct Person & Phone:
Rachel Gimderson
26G-8710
Doc.Type: RESOLUTION
y
Pssign
(Dater tiumber
� • � ��- For
Routing
Ortler
E-0ocumentRequired: Y
DocumentContact: JulieKraus
Gonfact Phone: 266ST76
Total tl of Signature Pages _(Clip NI Locations for Signature)
0 ice "on/E viron Pro //�
1 _icensellnsoecROdEnrironPro DeoartmentDirector G� Q' �'U=�
2 ' Attorne
3 or'sOffice a od sismnt
4 ou cil
5 ' Cler CS Clerk
Approval of the aUached resolurion memorializing advetse acrion taken against all the licenses held 6y DRJ, ffic., d!b/a Divas
Overtime Lounge (License ID#20050001998) for the premises located at 1141 Rice Street in Saint Paul.
idations: Appro�e (A) or F
Planning Commission
CIB Committee
Citil Service Commission
Following Questions:
1. Has this persor✓firtn e�er worked ufWer a corrtract for this department?
Yes No
2. Has this person/firm e�er been a city employee?
Yes No
3. Does this persoNfirtn possess a skill not nortnally possessed by any
current city employee?
Yes No
Explain all yes answers on separete sheet and attach to green sheet
Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why):
A public hearing was held on September 20, 2006 to discuss the Administrarive Law Judge's Findings of Fact, Conclusions of Law and
Recommendarion from the Administrarive Hearing held on August 3, 2006.
AdvanWges If Approved:
Memorialize Council acrion taken as a result of the Administrarive Law Judge's Findings of Fact, Conclusions of Law and
Recommendarion.
Disadvanqges IfMaroved:
None.
Disadvanppes If Not Approved:
Council action will not be memorialized.
Total Amount of
Transaction:
Funding Source:
Financial Information:
(Explain)
CosURevenue Budgeted:
Activity Number.
��c���Efl
SEP 2 1 2006
����$ ��;'�CE
SepEember 21, 2006 12:52 PM Page 1
Ofo��d✓
11-6020-'17359-6
STATE �F MINNESOTA
OFFICE OF ADMINISTRATf1fE HEARINGS
FOR THE ST. PAUL C1TY COUNCfL
In the Matter of All Licenses Held
by DRJ, Inc., d/b!a Diva's Overt+me Lounga
for the Premises Located at 1141 Rice Street
in St. Pau4, Minnesota.
FINDINGS OF FAC7,
CONCLIfSlONS UF LAW,
AND RECOMMENDATION
The abovs matter came on for hearing before Administrative Law Judge
Barbara L. Neiison on Augusf 3, 2006, at City Hall in St. paul, Minnes.ota. The record
ciosed at the end of fhe hearing that day.
Rache{ Gunderson, Assistant City Attomey, 400 City Hali, 95 West Keliogg Bivd.,
St. Pauf, Minnesota 55102, appeared on behalf of the Office of License� Inspections and
Envirdnmental Protection (L1EP). Marshall H. Tanick, Attomey at Law, Mans�ield,
Tanick & Cohen, P.A., 220 South Sixth Street, 5uite 1700, Minneapolis, MN 55402-
4511, appeared on behalf of the Licensee, DRJ, inc., d/b!a Diva's Qvertime Lounge.
This reporf is a recommendation, not a final decision. The St. Paul City Council
will make the final decision after a review af the rer.ord and may adopt, reject or modify
the Findings of Fact, Conclusions, and Recommendation. Under St. Paul Legislative
Code § 370.Q5(o-1}, the City Council shall provide the lioensee an opportunity to
present oral or written arguments alleging error in the application oi the !aw or the
interpretation of the facts and to {�resent argument related ta the recommended adverse
action contained in this Report. Parties should contact Rachel Gunderson at the
address above to learn the procedure for filing exceptions or presenting argumenf.
STATEMENT OF ISSUE
Shoufd action be taken against the licenses held by DRJ, Inc., d!b/a Diva's
Qvertime Lounge, because it allowed the after-hours display and consumption of
afcoho! in violatiort of St. Paul Legislative Code § 409.07(c)?
As discussed more fully below, the Administrative Law Judge concludes that the
Licensee did allow fhe display and consumption of alcohol after haurs and that an
adverse licensing action is jusfifed.
Based upon all fhe proceedings herein, the Adminisfrative Law Judge makes the
following:
o(�-���-
Fli1DfKGS O� FAGT
1. The Licensee, DRJ, inc., d/b/a Diva's Overtime Lounge {"Diva's"), holds
an on-sale liquor license from the City of St. Pau! and a permit from the Sfate fhat
authorizes a 2:00 a.m. c4osing fime. Diva's also ho{ds severaf other City licenses,
incVuding Sunday on-sa{e liquor, cigarette/Fobacco, gambling, limited restaurant, and
entertainment licenses.'
2. The Sf. Paul LIEP O�ce has an unwritten policy that is well known to
liquor licensees and the pofice departmerrt. Although state law and city ordinance
prohibit the sale and dispiay or consumptton of atcohof after 2:00 a.m. (where, as
here, a licensee is authorized for a 2:00 a.m. closing time}, the Office requires only that
such licensees stop serving alcohol by 2:OQ a.m. and stop ailawring people to enter fhe
premises after 2:00 a.m.; licensees have another half hour, urrtif 2:30 a.m., to clear
customers ftom the premises and ensure that no alcohol is being consumed or
displayed. Under fhe City's policy, patrons who were in tne bar by 2:00 a.m. are
permitted to remain until 2:30 a.m. to finish their drinks; however, everyone must be out
by 2:31 a.m 5
3. At approximately 1:00 a.m. on Saturday, April 8, 2Q06, Sgt. Craig Gromek
of the St. Pauf Police Department arrived at Diva's to observe ac6vities around c(osing
time. The observation was prompted by comptaints received t'rom neighbors and
council members regarding noise, fraffrc, and pubiic urination. Sgt. Gromek works in
the vice unit and was there to document licensing issues with respect to Diva's.
Throughout the time he observed activities at Diva's, he paid attention to the time of day
as announced by the dispatch operators on the portable police radio he was carrying 6
4. At the time Sgt. Gromek arrived, there were approximately 25 people
waiting in line to get into Diva's, and security personne� at the door appeared to be
checking IDs. Sgt. Gromek decided not to go into the bar at that time, and parked his
unmarked vehicle in the parking lot located diagonally across the street from the bar, on
the east side of the intersection wifh Rice Street. He had an unobstructed view of the
frarrt and rear doors of Diva's on the east side of the building. Another officer, Sgt.
Bandemer, was also present to observe Diva's. Sgt. Bandemer parked on Rice Street,
just north of the intersection. He later moved to a location west of the bar on Geranium
Avenue.�
' Testimony of Christine Rozek; Ex. 1.
2 Testimony of C. Rozek, Sgi. Craig Gromek, Clint Kaufenberg, Michelle Martinez.
3 Minn. Stat. § 340A.504, subd. 2..
4 St. Paul Legislalive Code § 4D9.07(a), (c).
5 Testimony ofi C. Rozek. The only exception is for private after-hours parties during the Christmas
season, in situaiions where a licensee has provided prior notice to fhe City. See Sf. Paul Legislative
Code § 409.07(d). There is no evidence that there was a sanctioned after-hours party at the Licensee's
esfabtishment on Apnl 8, 2006.
6 Testimony of Sgt. Gromek; Ex. 2.
7 Tesfimony of Sgt. Gromek; Ex. 2.
2
b�'��j�"
5. Diva's security officers left fhe fronf door of fhe bar at approximately 9_45
a.m., when fhe line dissipated, and no one controlled fhe e�trance to fhe bar between
1:45 and 2_15 a.m. People continued to walk in and out of Diva's w+thauf resfriction
during fhat fime. At 2:15 a.m., a uniformed securify guard stood outside ofi fhe frorrt
daar and a steady sfream of people feft fhe bar. Between 2:15 and 2:36 a.m., Sgt.
Gromek observed approuimatefy 50 to 60 peopfe who had come outside Diva's walk
back into the bar. Neither the security guard nor ofher employees who came outside
Diva's to smoke after2:00 a.m. prevenfed anyone from re-entering Diva's.
6. Several disturbances occurred between 1:45 and 230 a.m. Sgt. Gromek
observed a man who appeared to be intoxicafed. leave Diva's, ye{f at another person,
stagger around the comer of the building, and urinate. He saw another man walk out ofi
Diva's carrying a plasfic cup containing an orange juice drink and shout about how he
was going to have his cockiail and go to a party at another nearby bar. Sgt. Gromek
also saw a man grab a woman who had come out of the bar yelling and swearing and
carry her to a car while she continued yelling. Diva's security personnel did not
intervene in any of these situa6ons 9
7. At approximately 2:15 a.m., Sgt. Gromek called Sgt. Rothecker, his
supervisor, and asked fhat a iwo-person uniformed patroi squad be sent to Diva's to
wafk through the bar and count how many people remained inside. Sgt. Gromek made
this request because he works undercover and was not wearing a uniform, he did not
want to reveal his identity to Diva's staff, and bar owners are required to open their
doors to uniformed officers. This request was approved, and Officers Susan Hartnett
and Christopher HoyE arrived at Diva's shortly before 2:30 a.m. They spoke brisfly with
Sgt. Gromek, then knocked on the front door ot Diva's. Sgt. Gromek left his car to
approach Diva's at 2:29 a.m. and was a short distance (approximatefy ten yards� away
from Officers Hartnett and Hoyt as they knocked on ihe front door of the bar.' Sgt.
Gromek was monitoring the time for documentation purposes and noted that it was 2:32
a.m. when Officers Hartnett and Noyt knocked at the front door of the bar. Fred
Macalus, owner of fhe building in which Diva's is located, came to the door first and
responded that he did not have a key. He left the door for more than one minute.
Another employee came to the door, fumbled with sevesa! keys, and fina{{y opened the
door. Sgt. Gromek and Officer Hartnett both believed that Diva's employees were
s{ow to un{ock the door because they were staliing for time. After the firont door of the
bar was opened, Officer Ffoyt walked inside and saw soms employees and possibly
some customers. Atthough some people were holding containers, O�cer Hoyf did �ot
see them actually drinking and cannot say for sure that they were drinking alcohol.'
$ Testimany ofi Sgf. Gromek; F�c. 2.
9 Testimany of Sgt. Gromek; E�c. 2.
� Testimony of Sgt. Gromek; 6c. 2_
" Testimony of Sgt. �romek, Oificer Susao Hartnett, O�cer Christopher Hoyt; Exs. 2, 3, 4, 5.
� Testimony of Sgt. Gromek; Ex. 4.
13 Testimony of Sgt. Gromek, Officer HaRnett, O�cer Hoyt, Fred Maca{us; Exs. 2, 4, 5.
�� Testimony of Sgt. Gromek, Officer Hartnett; Ezs. 2, 3.
�$ Testimony of Officer Hoyt.
3
a
d (p ' ��1 �-'
8. When it took so long for Diva's staff to open the front door, OfFicer Hartneft
went around to the back ofi the bar. She saw approximately 30 people leave the
building firom the back door. She entered the bar through the back door and saw at
leasf ten peopfe in the rear of the bar holding what appeared to be drinks in their hands.
Several other people in the bar were identified as employees. She fold the patrons that
the bar was closed and they had fo teave. It took approximately ten minutes to clear out
the bar.
9. White the emp{oyee was fumbling with the keys at the front door, Sgt.
Gromek saw at teast 40 people leave by the back door. Sgt. Gromek watked araund
the building and looked in several windows between 229 and 2:36 a.m. He first looked
inside #he windows on the north side of the bar and saw 92-14 people sitting inside the
bar. He observed one man drinl�ing a Mitler Lite as he talked to the bartender, who was
c{eaning up, and one woman seated at the north end af the bar drinking a Michetob
Golden Lite beer. Sgt. Gromek then watked to the west side oF the bar and looked in
other windows. By this time it was 2:36 a.m. Sgt. Gromek saw the pool tabfe/game
room area and another group of approximately 25 people milling around. He saw what
appeared fo be mixed drinks on some of the tables and observed three different people
drinkin�q. Two were drinking firom beer bottles and one appeared to be drinking a mixed
drink.�
10. After Diva's closed on April 8, 2006, several employees wenf ta the home
of bartender Michelle Martinez to celebrate the birthday of another employee and watch
a videoiape of a boxing match.� Mr. Macalus arranged for a mini-bus to come to the
bar to pick up employees for the party. The mini-bus arrived at Diva's at 1:35 a.m.,
and 6 or 7 women left the bus and went +nto the bar. The bus left with a group of people
from the bar after 2:53 a.m.
11. Sgt. Gromek saw the last patron leave Diva's at 2:53 a.m. He checked his
radio set to verify the time. At that time, people were still teaving the pool table area to
go ta the mini-bus. Ne observed another 8 to 12 people stitl in the bar, including Mr.
Macalus?'
12. Sgt. Gromek prepared an incident report with respect to the closing
activities at Diva's later in the day on April 8, 2005.� Officer Hartnett prepared an
incident report on April 12, 2005.� After reviewing OfFcer Hartnett's report, Sgt.
Gromek prapared a supplemental repoct an April 25, 2006, stating what time it was
when Officers Hartnett and Hoyt knocked on Diva's door on April 8, 2006 2 Sgt.
� Testimony of Officer Susan Hartnett; Ex. 3.
17 Testimony of Sgt. Gromek; F�c. 2.
�$ Testimony of C. Kaufenberg, M. Mar(inez, Fred Macalus, Sartholomew Roach.
19 Testimony of F. Macalus.
20 Testimony of Sgt. Gromek; Exs. 2, 4.
Z ' Tastimony of Sgt. Gromek; Ex. 2.
� F�c. 2
� F�c. 3.
24 Testimony of Sgt. Gromek; Ex. 4.
�
D(�-8� 2-
Gromek prepared another supp(emenfal report on May 3, 2i106, correcting arz error he
had made in the Aprif 25 suppiemenfai report regarding the date on which the incident
occurred.�
13. After the LIEP Office reviewed police reports regarding the April 8, 2006,
incident and consulfed with the C+ty Attomey's O�ce, fhe City determined that fhe
Licensee had violated the St. Paul Legislative Code and issued a Notice of Vio{ation on
May 17, 2006. Because this was the Licensee's first violation for after-hours dispiay or
consumption of alcohol, LIEP determined fhat a penaliy of $500 was warranted under
the pena(ty matrix set forkh in St. Paul Legislafive Code § 409.26. 7he Notice of
�olation irrFormed the Licensee of the nature of the violation, the proposed fine, and the
opportunity to request a hearing before an Administrative Law Judge.�
14. On May 25, 2006, counsef for Diva's notified counsel fior the LIEP Office
that Diva's was requesting a hearing before an Administrative Law Judge.
15. On June 14, 20�, the City Attomey's ofifice issued the Notice of Hearing
setting the hearing for August 3, 2006.� The hearing took place as scheduled.
Based upon the above Findings of Fact, ihe Administrative Law Judge makes the
following:
CONCLUSIONS QF LAW
1. The Administrative Law Judge and the St. Pau{ City Council have
jurisdiction to hear this matter pursuant to Minn. Stat. § 340A.415 and St. Paul
Legislafive Code § 310.05.
2. The City of St. Paul gave propet notice ot #he hearing and has fulfilled afl
relevant substantive and procedural requirements of law and rule.
3. As the party proposing that certain action be taken, the City has the
burden of proving facts at issue by a prepondera�ce of the evidence.�
4. State law and St. Paul ordinance both prohibit the sale of intoxicating
liquor between the hours of 2:00 am. and 8:QQ a.m. on the days of Monday through
Saturday. In addition, a local authority may impose further restrictions and regulations
on the sale and possession ofi alcoholic beverages within its Iimits. Pursuant to this
authoriry, the St. Paul Legislative Code further provides that no person shal! consume or
� Testimony of Sgt. Gromek; E.u. 5.
26 Tesfimony of C. Rozek; Ex. 6.
zl Ex. 7.
Zs F�c. 8.
Z9 Minn. R. 1400.7300, subp. 5,
30 Minn. Stat. § 340A.5D4, subd. 2; St. Paul Legislative Code § 4Q9.07(a).
3t Minn. Stat. § 340A.509.
5
bf�-89a--
display or allow cansumption or display of fiquor upon the premises of an on-sale
licensee at any fime when fhe sale of such liquor is nof permitted �
5. Based on a fnding thaf a license holde� has failed to comp{y with an
applicable statufe, rute, or ordinance ce{ating to a{caho4ic beverages, t{�e commissioner
of the Department of Public Safety or the aisthonty issuing a retaif iicense may revoke
the license, suspend the ticense for up to 6d days, impose a civil �enalfy of up to $2,000
far each v�a{ation, or impose any combination of these sanctions.
6. The St. Pau1 Legisfative Code provides that, for a first viotation, the
sanction for after-hours dispiay or consumption of an alcoholic beverage is a fine in the
amount of $500. The City Council may deviate from this penaity in an individuai case
where the Council finds that substantial and compelling reasons exist making it more
appropriate to do so.�
7. There are no substantial or compelling reasons in the record to justify a
deviation from the presumptive penalty in this case.
8. A fine in the amount of $5Q0 as a sanction for after-hours disp�ay or
consumption of alcohol is consistent with the authority granted by Minn. Stat.
§ 34dA.415.
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 license of DRJ, Inc., d!b(a Diva's Overtime Lounge.
Dated: September 5, 2006. ���� � ���'
BARBARR L. NEfLSON
Administrafsve Law Judge
Reported: Tape recorded (two tapes)
NOTICE
The St. Pauf City Council is requested to serve notice of its final decision upon
eacl� party and ths Administrative Law Judge by first-class mail.
� Id. § 409.07(c).
� Minn. Stat. § 34QA.415.
� St_ Paul Legislative Code § 40926(a}, (b).
� Id § 409.Z6(a}.
�
01�-8�a-
MEMORANDUM
The on}y issues in this case are whether fhe potice officers in fact observed
consumption or display of aicohol affer 2:30 a.m. on April 8, 20Q6, and whether fhere
were extenuafing circumstances that evening that either caused people to continue
entering Diva's Qvertime Lounge after hours or prevented them firom leaving at closing
time.
With respect to the first argument, Diva's asserted that the City did not provide
convincing evidence of consumption or dispfay of aicohof occurring after 2:30 a.m.
Diva's emphasized that neither Officer Har�tnett nor Officer Hoyt knew the precise time
at which they entered the bar, and Officer Hartnett was not sure of the time at which she
observed peopie in Diva's holding what she presumed to be alcoholic drinks. Because
O�cer Hartnett reported that she and Officer Hoyt arrived at Diva's at appsoximately
2:15 a.m. and proceeded to knock on the door shortly thereafter, Diva's argues that any
individuals :that were observed after their entry were merely customers permitted to
finish their drinks by 2:30 a.m. in accordance with City poficy. Diva's also argues that
the City failed to carry its burden because none of the officers present on Apri18 tested
the drinks to verify that they contained alcohol.
Officer tiartnett merely stated in her report that it was "approximately" 2:15 when
Sgt. Gromek asked her squad to conduct a count of patrons drinking or inside Diva's,
8nd Officer Hartnett made it clear in her testimony at the hearing that she did not know
what time it was and this was merely an approximation. dfFcar Hoyt also was not sure
of the exact time, but just knew that it was after 2:00 a.m., and stated that he v�rould trust
Sgt. Gromek's timing. OfFicer Hartnett also indicated that she did nat know how long
she and Officer Hoyt spoke to Sgt. Gromek befiore they walked over to Diva's front door
or how long they stood by the front door while Diva's staff fumbled for keys. More
import�ntly, Sgt. Gromek provided convincing testimony about the timing of the events
that evening. He serves in the Vice Unit, was familiar with City policy about bar closing,
and was observing Diva's that evening to document possibi� ficensing issues. As a
result, he was paying strict attention to the time, which he verified by listening to his
portable police radio.
Based on Sgt. Gromek's testimony, which the Administrative Law Sudge believes
was more accurate and reliable, O�cers Hattnett and Hoyt in fact knocked on the door
to Diva's at 2:32 a.m. Thus, there is persuasive evidence that it was after 2:30 a,m.
v,rhen Oificer Hartnett observed ten people in Diva's with drinks in their hands. Sgt.
Gromek also provided credible festimony that it was 2:36 a.m. when he observed three
people consuming alcoholic beverages in the pool table area. Two of the three were
drinking from beer bottfes. ft is reasonabte to presume without testing that the
substance inside the beer bottles was, in facf, beer. Even ifi Sgt. Gromek was mistaken
about the mixed drink he believed the third individual was drinking, and even if Officer
Harinett was incorrecf about fhe alcohotic nature of the beverages she observed being
held by ten individuals in the 6ar, there is convincing evidence that at least two
individuals were drinking beer at Diva's at 2:36 a.m. The City therefore demonstrated
7
Of�
by a preponderance of the evidence thaf cansumpfion ar display of atcohal occurred af
Diva's affer 2:3(1 a.m. on April 8, 2046 � Because the City ordinance prohibits
consumption or disp{ay of liquor at any time when tFie safe of sucfi iiquor is not
permifted, it is not necessary for fhe Ciiy to show that police officers observed actual
service or saies of liquor.
Diva's a}so argued that exfenua6ng circumstances explained the number of
people tF�at were observed to be in the bar after 2:00 a.m. Diva's wifnesses testified
that some of fhe individuals present were employees who had gafhered to go to a
birthday celebration at a bartender's home. However, there is no evidence that Diva's
had given prior written notice to the City under St. Paul Legislative Gode § 409.07(d)
that it was holding a private after-houfs party or that the gathering was othen,vise
exempf from the usua! bar Gosing requirements. In addition, two bartenders {C4int
Kaufenberg and Miche!!e Martinez), a bouncer {Batho{omew Roach), and bui{ding
owner Fred.Macalus aN testified at the hearing that a car accident occurred in front of
the bar around 2:00 a.m. on April 8, 2006. They asserted that one of the drivers tried to
ffee from the scene and that pofice officers set up a road block on Rice Streei and
Geranium Avenue, making it difficult for people to leave the area by car. They further
claimed that, when the man tried to fight with police after he was caught and customers
of Diva's ran over to waich, police o�cers instructed patrons to go back in the bar and
told Diva's bouncers not to let people leave.
Sgt. Gromek, who was present during the early moming hours of April 8, did not
see any accident, and Officers Hartnett and Hoyt did not mention any accident in their
testimony. When called by the City as a rebuttal witness, Sgf. Gromek stated that he
had checked police records rela6ng to accidents at Rice and Geranium and had not
found any record of an accident in the early momirig hours of Aprit 8.� He did,
however, find a record of a hit and ru� accident that occurred the night before (Friday
night, April 7, 2006), at 9:07 p.m. The driver was caught, arrested at 9:15 p.m., and
processed for DWt. fie was booked irrto jai{ at 11:45 p.m. on Apri1 7. The squad
hand{ing the inciderrt finished booking the suspect and writing a11 reports and was back
on patrof by 1:33 a.m. on April 8, 2006." The suspeet was fater charged in Ramsey
County District Court with third degree DWl and ieaving the scene of an accident.
Based upon all of evidence provided at the hearing, the Administrative Law
Judge is convinced that the Diva's witnesses were mistaken about the time at which the
accident occurred. The City provided credible evidence that the accident in fact
� In contrast, there was not convincing evidence that it was after 2:30 a.m. when Sgt. Gromek fooked
inside the windows on the north side of the bar and observed a man drinlGng a Mller Lite while talking to
a bartender and a sraman seated ai th2 bar drinking a Michefob Gofden Lite. Sgt. Gromek was only able
to state that it was 229 a.m. when he started to {ook in these windows.
�' Afthough Diva's obtained a subpoena for Sgt. Thomas Radke to testiiy about a hit and run accident
occurring at about closing time on April 8, Diva's did not call Sgt, Radke at the hearing or produce any
records relafing to the alleged accident.
� Exs. 10, 11.
� Fxs. 9, 10.
40 Ex 12
0
„ • � r
f� Ce' �� �-
occurred more than five hours before the baPs closing time and the driver was jailed by
11:45 p.m. on Aprif 7. The accident thus does nof provide any excuse for the presence
of numerous individuals in the bar after 2:30 a.m. on April 8. Accordingly, there are no
substantiai or compeliing reasons in the record fo warranf a deviation from the
presumptive $500 penaVty in this case.
B. L. N.
0
Council Research Center
SCr 112�U6
OCp-�i�-
OFFICE OF Tf� CITY ATTORNEI'
�ot� .r cnas, c,�y.tao�
CI1 S �F SL711V r PA�i CivilDivision
Christopher B. Coleman, Mayor 400 Ciry Hall
I S l�ut Kellogg Blvd
Saint Pau7, �miesata 55102
i
September 8, 2006
NOTICE OF COUNCIT. HEARTNG
Marshall H. Tanick
Mansfield Tanick & Cohen, P.A.
1700 U.S. Bank Plaza South
220 South Sixth Street
Minneapolis, MN 55402-4511
Teisphone: 657 266-87] 0
Facsimile: 65l 298-56I9
RE: . All Licenses held by DRJ, Inc., d/b/a Diva's Overtime Lounge for the premises at 1141 Rice
Street in Saint Paul
LicenseID # 2005Q001998
OAH Docket #: ll-6020-17359-6
Deaz Mr, Tanick:
Please take notice that a heazing on the report of the Administrative L,aw 7udge concerning the
above-mentioned licenses has been scheduled for Wednesday, September 20, 2006, at 5:30 p.m. in the
City Council Chaznbers, Third Floor, Saint Paul City Hall and Ramsey County Comthouse.
You have the opportunity to file exceptions to the report with the City Clerk at any tizne during
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 Adminisirative Law Judge and on the azguments made and
excepfions filed, but may depart from the recommendations of such Judge as permitted by law in the
exercise of its judgement and discretion.
rely,
GA�/
c 1 Gunders
Assistant CiryA o ey
cc: Diane Nordstrom, Office of Administrative Hearings, 100 Washington Squaze,
Suite 1700, 100 Washington Avenue South, Manneapolis, MN 55401
�/NlaryErickson, Council Secretary
Christine Rozek, Aeputy Director of LIEP
Debra Johnson, Diva's Overtime Lounge, 1141 Rice Street, St Paul, MN 55117
Kerry Antrim, Community Organizer, D'astrict 6 Planning Council
213 Front Avenue, St. Paul, MN 55117
AA-ADA-EEO Employer
D�o- ��a� ��
September 13, 2006
MEiY10RANDUM
To: Honorable Saint Paul City Council Members Kathy Lantry, Debbie Montgomezy, Dave
Thune, Pat Harris, Jay Benanav, Lee Helgen and Dan Bostrom
From: Andy Aawkins, Attomey for D12J, Inc, dba Diva's Overtime Lounge
RE: AL3's Findings of Fact, Conclusions of Law and Recommendation
Dear �Ionorable Council Members:
I represent Debra Johnson, license holder, with regards to the upcoming City Council hearing
set for September 20 at 5:30 p.m. as to the AL7's report. I ask that you consider the following:
l. My client has no exceptions to make to the ALTs Conclusions of Law.
2. My client and I will attend the hearing for purposes of answering any quesfions Council
Members may have.
We ask only that:
A) You not consider any matters or incidents arising after the date of the initiafing
incident (April 8, 2006) in deternin;ng the appropriate action.
B) You keep in muad that (a) my client has new and additional license conditions in
effect since August 1(see E�ibit A attached) which shouid adequately protect the
public and address any matters or incidents arising thereafter; and (b) my client will
soon have an "Agreed Abatement P1an" per Minn. Stat. Sec. 617.82 which is being
drafted by the City Attorney per the agreements reached at a meeting on September
5 with John Choi, Rachel Gunderson, Judy Hanson, and Commanders John
Vomastek and Todd Axtel, which will add further protections for the public and
give the City additional nuisance abatement powers.
CONCLUSION
All of trus taken together — the lack of excepfions to the ALJ's Conclusions, her 16 new and
additional license conditions, the upcoming M.S.A. Sec. 617.82 Abatement Plan — puts in place
what I believe is the best nuisance abatement plan the City has undertaken in the past S years,
including the 4 years I was Director of Neighborhood Improvement. There is no need to do
more than what the AL7 is recommending to ensure adequate protection of the public; to do more
than what the ALJ is recommending (...that "there are no substantial or compelling reasons...to
justify a deviation from the presumptive penalty...of $500") oniy opens the City up to a legal
azgument that you considered extraneous matters and exceeded your discretion.
Respectfully submitted by:
-.�1
Andrew 7. Dawkins
Of Counsei to Mansfield Tanick & Cohen
1700 US Bank Plaza West
220 S. 6�' St,
Mpls., MN 55402
TeI.65I.222.4595
cc: Rachel Gunderson, Assistant Saint Paul City Attomey
e/
S]SKT I
�PAV[.
i�
18A1lA
OFFICE OF LICENSE, TNSPECTIONS AND
ENVIItONMENTAL PROTECTION
Bob Kusler, Director
CITY OF SATNT PAUL
Chruiopher B. Coleman, Mayor
COMMERCEBUILDWG
8 Frnvth Sbeet Eos{ Sutte 200
St PmaZ, Mmnesom 55101-7024
August 1, 2006
Andrew J. Dawkins
Attomey at Law
Mansfield, Tanick, & Cohen, P.A.
1700 U.S. Bank Plaza South
220 South Si�h Street
Minneapolis, MN 55402-4511
Dear Mr. Dawkins,
� � tf �
� � - �� a-
Talephone: 651-266-9090
Facamile: 651-266-912a
Web: www.Iiep,us
For your records, I have detailed the list of the license conditions which have been placed on the
Iicenses held by DRJ Inc dha Diva's, at 1141 Rice Street. The O�ce of LIEP will monitor
compliance with these conditions and will expect that the licensee will remain in compliance.
License Conditions:
l. The licensee wi11 comply with all requirements of Yhe City of Saint Paul Legislative Code Chapter
411 which regulates entertainment in liquor establishments. The licensee is responsib(e for both
patron and employee behavior on the premise. In particulaz, all performers and patrons must remain
fully clothed at all times.
2. The licensee will not permit lingerie or bikiru contests on the premise.
3. The licensee will not hire contract dance performers.
4. The Iicensee must provide working video surveillance cameras and recordezs on the premise to
provide documentation of activities pn the interior and exterior of the establishment. This equipment
must be in operation during all business hours. Tapes must be maintained for thirty (30) days and
must be immediately available to the Saint Paul Police Department and the O�ce of License,
Inspections and Environmental Protection, upon request.
5. The licensee must maintain a list of customers banned from the estabIishment for assaultive,
disorder]y, or distruptive behavior. This list will contain the name and descnption of the banned
person, as wel3 as, the date that helshe was banned. Ttus list must be immediately avai]able to the
Saint Paul Police Department and the O�ce of License, Tnspections,and Environmental Protection,
upon request.
6. LIEP will review fhis Ilcense in 6 months.
Conditions 7-16 were added per written agreesnent with the owner on 07131l2406.
7. Security personnel shall be assigned to each entrance starting at 9PM every day, and shall remain
until ail patrons have left the licensed premises. Security personnei shall "wand"(using a metal
detector) each patron and check all handbags and packages carried by patrons. Security personnel
shall verify the age of patrons by checking state or federally issued identificarion cazds (no picture
I.D, no entrance). Customers re-entering the establishment sha11 be subject to the same security
measures as customers entering the establishment for the fust time.
AA-ADA-EEO Emptoyer
-
� 8. The Iicense holder shall retain a licensed and bonded sectsity company to supervise security
personnel. The license holder shall perform a ciinunai background check of all security personnel.
License holder and the security company shaII work with the Dishict Council (Dishict 6 Community
Council) to estabIish what criteria will be applied prior to hiring aay security personnel. The criteria
wiil be no less than that outlined in St paul Lee slakve Code Chapter 376.16(e}.
9. The security personnel shall not fraternize with 1he patrons.
10. The license ho]der shall not allow new patrons to enter the establishment after 12:00 midnight on
Thursday, Friday, and Saturday nights. This condition shall rentain in effect through September 5,
2006. Be TIh1T September 5, 2006, the license hoider shaIl not allow uew patrons to enter the
estabIishment after 1:00 AM on Thursday, Friday, and Saturday nights_
11. t1ll smokers shall be monitored by the security personnel to keep patrons from congregalang in
front of the establishment. Security personnel shall also insure that there is no excessive noise outside
of fhe establishment. The security personnel shal] keep smokers on the Geranium Siteet side of the
establishment. The license holder shall work with potice to make sure that the security cameras aze
properly aimed to provide surveillance of the Geranium Street sidewallc.
12. Employees (including tiie Iicense holder) shall not drink alcoholic beverages wluie on duty.
13. The license holder, security staff, and employees of the establishment shall cobperate wifh the
police by calling for assistance when there is a threat of violence or ot�ier crim;,,al behavior.
14. f�li doors and windows must be cIosed from 8:00 P141 until closing to avoid easposing the
neighborhood to excessive noise.
15. The license hoIder shall make sure that all refuse and hash from the estab2ishment is removed
from the licensed premises and the surroundtng sidewalks and a21ey by noon on a daily basis.
16. The DJ shall make an announcement 30 minutes before closing asldng all patrons to respect the
community by leaving in an orderIy and quiet manner.
If you have any questions regarding these requirements, please contact me at 266-9108.
Sincerely,
C'�-� �- �'�'
Ckristine A. Rozek
Deputy Director
copy; Debra Johnson, Robezt Kessler, RacheI Gunderson, Cmdr. John Vomasfel� Cmdr. Joe
Neuberger