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07-1180Council File # ��'��8� Green Sheet # . � sa Presented By WHEREAS, Issam Alhuniri d/b/a Chicago Submarine (License ID�19990000132) located at 614 Selby Avenue in Saint Paul received a Norice of Violation dated August 22, 2007, for operating a sidewalk cafe without a sidewalk cafe license; and a� 1 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 WHEREAS, a hearing was held before an Administrarive Law Judge on September 27, 2007 where the Department of Safety and Inspecrions was represented by Counsel, presented testimony, arguments and exhibits into the record and the licensee appeazed and presented tesrimony, arguments and exhibits into the record; and WHEREAS a Report was issued on October 18, 2007, in which the Administrative Law Judge found that there was sufficient proof of the violation; and WHEREAS, the Administrative Law Judge also found that adverse action is appropriate; now, therefore be it RESOLUTION CITY OF SAINT PAUL, NIINNESOTA 2�=��&e�� RESOLVED, that a fine of $500.00 is imposed against all licenses held by Issam Alhuniti d/b/a Chicago Submarine; 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 FURTHER RESOLVED, that the Findings of Fact, Conclusions of Law and Recommendation of the Administrative Law Judge in this matter are hereby adopted as the Findings and Conclusions of the Ciry 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. Requested by Deparpnen[oE ��v� .a' a , by C�ty Attomey Adoption Certified by Council ecretary By � / Approved by May c te ' L �' � _ By: By: 4—i,t,C.�1a.K i t Form Appioved by �yorfor ��fk=-��- ��'j/l, gY. � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � b7-/� Sd $� -Dept of Safety & TnspecLions � 2�NOV-07 CoMad Person & Phone: Rachel Ttemey 266-8710 rvtust se on 12-DEG07 Doc.Type: RESOLUTION E-DOCUment Required: Y DocumentCOnWct: JulieKraus Contact Phone: 2668776 � Assign Number For Routing Order Total # of Signature Pages _(Glip All Locations for Signature) Green Sheet NO: 3046752 p �epto[SateN&Iaspec4ons 1 eDt of Safety & Insvecfions Deparmient I)irector 2 ' Attorue 3 a or's Office Ma or/Assistaut 4 onuc� 5 � Clerk C5 Clerk Memorializing Ciry Council acrion taken November 21, 2007 imposing adverse action against the Restaurant (A) 0-12 Seats license held by Issam Alhuniti, d/b/a Chicago Submazine (License ID#19990000132) for the premises located at 614 Selby Avenue in Saint Paul. itla[ions: App�ove (A) or K Planning Commission CIB Committee Civil Service Commission 1 Has this personlfirm ever worked under a contract for this department? Yes No 2. Has this persoNfirtn ever been a city employee? Yes No 3. Does this person/firm possess a skill not normally possessed by any current city employee? Yes No Explain ali yes answers on separate sheet and attach to green sheet Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why): A public hearing was held on November 21, 2009 to discuss the Administrative Law Judge's Findings of Fact, Conclusion of Law and Recommendations from an administrative heazing held on September 27, 2007. AdvantageslfApproved: Imposition of a$500.00 matrix pena7ty. DisadvanWges If Approved: None Disadvantages If Not Approved: Transaction: Funding Source: Financial Information: (Explain) Activity Number: CostlRevenue Budgeted: November 28, 2007 10:40 AM Page 1 OFFICE OF I'f� CITY ATTORNEY John J. Choi, CityAttorney � �-//gU CITY OF SAlNT PALTL CivilDivision Christopher B. Colemmq Mayor 400 Ciry Hall Telephone: 651 266-8710 ISWesiKelZoggBlvd Facsimile:657298-5619 Saint Paul, lvlvmesota 55102 i October 23, 2007 NOTICE OF COUNCIL HEARING , Issam Alhuniti �,.. �� .F.�,.aFC?� :f<::.. Chicago Submarine ,�� 614 Selby Avenue � St. Paul, MN 55102 RE: Restaurant (A) 0-12 Seats license held by Issam Alhuniti, d/b/a Chicago Submarine for the premises located at 614 Selby Avenue in Saint Paul License ID # 19990000132 OAH Docket No. 4-6020-19206-3 Deaz Mr. Alhuniti: Please take notice that a hearing to discuss the report of the Administraxive L,aw Judge concerning the above-mentioned licenses has been scheduled for Wednesday, November 21, 2007, at 5:30 p.m. in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opportunity to file excepfions to the report with the City Clerk at any time during normal business hours. You may also present an oral or written argument to the Council at the hearing. No new evidence will be received or tesfimonv taken at this hearin�. The Council will base its decision on the record of the proceedings before the Administrative Law 7udge and on the arguments made and exceptions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its jud�nent and discretion. Sincerely, �`�C�= � L V Rachel Tiemey Assistant City Attomey cc: Diane Nordstrom, Office of Administrative Hearings, P.O. Box 64620 St. Paul, MN 55164-0620 Is am Alhuniti, 612 Selby Avenue, St. Paul, MN 55102 �Iary Erickson, Council Secretary Christine Rozek, Deputy Director of DSI AA-ADA-EEO Employer r . c�:.T ,�v�.:<� � 'qT.r. .��r�i,� J _` 1'� • � > '4 "��':� :e �r �.r:,�`-"' ,..,- G 'z __ .,�„ _ �.�1J' -� '..u: g'"�k -ii._"� '-.. w' .. . � .808: V ��I/� MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 600 North Robert Street Saint Paui, Minnesota 55101 Mailing Addxess: P.O. Box 64620 St. Paul, Minnesota 55164-0620 Shari Moore, City Clerk 290 City Hall 15 West Kellogg Bivd. St. Paul, MN 55102 Voice: (651) 361-7900 ' TTY: (651) 361-7878 Fax: (6�1) 361-7936 October 18, 2007 �� -� � � `'� ' c' 2IIC�7 �� Re: In the Matter of Adverse Action Against All Licenses P-Zeld by Iss�sn �dldruniti d/bfa �,�i�a�o Sudamarf�;e aP £14 S�Iby Ave�we in St. Pauf, IVlinnesota; OAH Do�ket No. 4-6020-19206-� Dear fNs. Mr�ore: _... � Enclosed herewith and served upon you by mai! is the Adrninistrat'rve Law Judge's Findings of Fact, Conclusions of Lavrr, and Recommendation in the abave- entitied matter, Also enciosed is the officia! record, with the exception of the digital recording of the hearing. If you would like a copy of the digital recording, please cc��tac� our office in writing or teiephone 651-361-7840. Our file in this matter is now being closed. " BHJ:mn Encl. . S'sncerely, �'��-�-� ��1�� Q - ` `" BRUCE`,H. :i0`HNSON' ;_ , , . Assistant Chie# Adrriin;strative Law Judge cc: �ac - ei � n�� erson Tiemey issam 'Ifi�uniti Telephone:(65?)361-7839 � • 6�-//�D OAH 4-6020-19206-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE ST. PAUL CITY COUNCIL in the Matter of Adverse Action Against FINDINGS OF FACT, All Licenses Held by Issam Alhuniti CONCLUSIONS OF LAW, AND d/b/a Chicago Submarine at 614 Selby RECOMMENDATION Avenue in St. Paul, Minneso#a The above matter came on for hearing before Administrative Law Judge Bruce H. Johnson on September 27, 2007, at City Hall in St. Paul, Minnesota. The record closed at the conclusion of the hearing on that date. Rachel Gunderson Tierney, Assistant City Attorney, 400 City Hall, 15 West Kellogg Blvd., St. Paul, Minnesota 55102, appeared on behalf of the Office of License, frispections and Environmentaf Protection (LIEP) of the City of St. Paul (the City). Issam Alhuniti (the Licensee), owner of Chicago Submarine, 614 Selby Avenue, St. Paul, Minnesota 55102, appeared on his own behalf. 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 Legisiative Code § 310.05(c-1), the City Council shall provide the Licensee an opportunity to present oral or written arguments alieging 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 — shotrfch - contact Rachel fiQr filing exceptions or presenting argument, STATEMENT OF ISSUES 1. Did the Licensee violate St. Paul Legisiative Code § 106.01 by obstructing the sidewalk without a sidewaik cafe license or proof of insurance? 2. If so, what sanction should the Saint Paul City Council impose on the Licensee's restaurant license under St. Paul Legislative Code § 310.06(b)(6)? Based upon all the proceedings herein, the Administrative Law Judge makes the following: 67-(/gb FINDWGS OF FACT 1. The Licensee has held a license for the operation of a small deli in the City since 1997.� The license ((A) 0-12 Seats) allows the Licensee to maintain up to 12 seats for his customers inside the deli "Chicago Submarine." 2. The City does not allow any person or establishment to obstruct pubiic sidewaiks with any materials or encumbrances. The City provides, however, an exemption for sidewaik cafes. A food establishment may provide outdoor seating on the public sidewalk if the establishment notifies the City license inspector, and obtains a sidewalk cafe license and liability insurance for the sidewalk cafe. 3. The Licensee has never obtained a sidewalk cafe permit or insurance for a sidewalk cafe 4 4. Kristina Schweinler is the senior license inspector with LIEP. On May 17, 2007, Inspector Schweinler visited Chicago Submarine and noticed tables and chairs set up on the sidewalk in front of the business. 5. Inspector Schweinler spoke with the Licensee and informed him he needed to obtain a permit and proof of insurance before he could place seating on the sidewalk. She issued him a"License Inspections Notice," which notified the Licensee that he needed to obtain a"sidewalk cafe license" at the cost of $31.00. The Licensee signed the Notice. 6. The Licensee had suffered a number of hardships, before he first received the License Inspections Notice. His infant daughter had been seriously ill, and he himself had undergone knee surgery and had had to close his deli for a number of months. As a result, it was financially difficult for the Licensee to purchase an additional sidewalk license or additional insurance for the sidewalk seating. On the other hand, it was because of those financial hardships that he believed he needed the additional seating to generate revenue � 7. inspector Schweinler paid a second visit to Chicago Submarine on June 28, 2007. Once again, there were tabies and chairs set up on the sidewalk in front of the deli. From her City vehicle, she took photographs of the outdoor seating. The Licensee was inside the deli when she arrived. The Licensee saw ' 7estimony of Issam Alhuniti; Exs. 1-2. 2 Ex. 1; Testimony of Christine Rozek. 3 Test. C. Rozek; St. Paul Legislative Code § 106.01. 4 Test. C. Rozek. 5 Testimony of Kristina Schweinler; Ex. 2. 6 Test. K. Schweinler; Ex. 2. � Test. 1. Afhuniti. 2 D�- l!�'D her, walked out of the deli, approached her vehicle and spoke with her. Inspector Schweinles reminded him he had been ordered to remove the seating until he obtained the necessary sidewalk license. At thaf time she did not specificaliy identify herself as being a City inspector. $ 8. The Licensee was not in the process of cleaning the alley adjacent to his deli at any of the three times Ms. Schweinler's visited his business premises. 9. Inspector Schweinler visited Chicago Submarine a third time on August 17, 2007, and again noticed seating placed on the sidewalk in front of the deli. She had no contact with the Licensee during that third visit. 10. On August 22, 2007, the St. Paul City Attorney's Office sent the Licensee a"Notice of Violation" in which the Assistant City Attorney notified the Licensee of the Ciry's intent to take adverse acfion against him for encumbering the public sidewalk without a permit. Specifically, the Notice referred to the dates in May and June when Inspector Schweinlsr witnessed the seating on the sidewalk in front of the deli. The Notice provided the Licensee three options: 1) pay a$500 penalty; 2) admit the facts but contest the penalty in a public hearing before the St. Paul City Council; or 3) request a hearing be#ore an Administrative Law Judge.� 11. On August 30, 2007, the Licensee notified Assistant City Attorney Tierney of his request for a hearing before an Administrative Law Judge.�� 12. On September 11, 2007, Assistant City Attorney Tierney issued a Notice of Administrative Hearing, notifying the Licensee of the hearing before the Administrative Law Judge on September 27 at 9:30 a.m. Based upon the above Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS OF �AW 1. The Administrative Law Judge and the St. Paul City Council have jurisdiction to hear this matter pursuant to St. Paul Legislative Code §§ 310.05- 06. 8 Test. I. Alhuniti; Test. of K. Schweinler; Exs. 1; 2; 3. 9 Test. K. Schweinler; Exs. 1; 7. 70 EX. 4. �� Ex. 5. 3 a. �7- l/8�6 2. The City gave proper notice of the hearing and has fulfilled all refevant substantive and procedura{ 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 preponderance of the evidence. 4. St. Paul Legislative Code § 106.01 prohibits the encumbrances of public sidewalks without a license and proof of insurance. 5. The City has shown, by a preponderance of the evidence, that the Licensee obstructed the public sidewalk in front of his business with outdoor seating without a license or proof of insurance. 6. St. Paul Legislative Code § 310.06 (b) authorizes the Council to take adverse action against a licensee who violates a condition of the license or any provision of the Legislative Code. Adverse action includes a variety of disciplinary actions ranging from fines to license revocation.' 7. The City has shown, by a preponderance of the evidence, that the Licensee violated a provision of the Legislative Code by obstructing the pubiic sidewaik without a license. Based upon the above Conclusions of Law, the Administrative Law Judge makes the foliowing: RECOMMEI�IDATION IT IS HEREBY RECOMMENDED that the St. Paul City Council take such action against the licenses of Chicago Submarine as the Council deems appropriate under the circumstances. Dated: o�G� �'�i �� BRUCE H. JOHNSO Administrative Law J d e Reported: Digitally recorded (no transcript prepared) ' St. Paul Legislative Code § 310.05. � D"7�l/�b MEMORANDUM The issue is whether the Licensee obstructed the City sidewalk without a sidewalk cafe permit or proof of insurance. Inspector Schweinier testified that on three different occasions she saw tables and chairs on the sidewalk in front of the Licensee's deli. The Licensee admits he piaced the tables and chairs on the sidewalk without first obtaining the requisite license and insurance. However, the Licensee argued that he should not be held in violation of an ordinance prohibiting persons from encumbering a City sidewalk without a permit. First, the Licensee argued that he has complied with ail licensing requirements since he first obtained his restaurant license in 1997, and that this is the first time he has ever been cited by the City, but the Licensee's previous compliance does not excuse his current violation. Next, the Licensee argued his family and financial hardships should excuse his violation. Though the ALJ is sympathetic to the Licensee's situation, there is no hardship exception in the City's ordinance that would aliow the Licensee to maintain an outdoor seating area without a permit and proof of insurance. The ALJ notes that the fee for the sidewalk cafe permit is only $31.00, and the Licensee offered no evidence that the cost of obtaining additional coverage the City requires would be unreasonably high. The Licensee's hardship argument is therefore also not persuasive. Finally, the Licensee testified that after Inspector Schweinler first notified him of the violation in May 2007, he moved the tabies from the sidewalk to the adjacent ailey, and only repositioned the tables on the sidewalk when he cleaned the alley, The Licensee claimed that on those occasions he would return the tables to the alley, and that the cleaning process only took ten minutes. He testified that the times when Inspector Schweinler had visited his deli were ail occasions when he had temporarify moved the tables from the alley to the sidewalk while cleaning the alley. The ALJ did not find the Licensee's testimony that he only placed tables on the sidewalk while cieaning the ailey credible for a number of reasons. That the Licensee was cleaning the alley at the exact times of all three of Inspector Schweinler's visits is too coincidental to be believable. Moreover, Inspector Schweinler testified that she did not see evidence that the Licensee was cleaning the alley on any of those three occasions. The evidence established that the Licensee was in his deli and not outside cleaning during Ms. Schweinler's first visit on May 17, 2007. The Licensee himself testified that he was inside his deli and not outside cleaning when he saw the Inspector taking pictures from her v,ehicle on June 28, 2007. The photos taken in June and August show no �.'i , 6`l - /lg0 evidence of the alley in 4he process of being cleaned; the sidewalk and alley are not wet and crates appear to be stacked in the alley next to the deli entrance. Finaily, even if the Licensee had only placed tables on the sidewalk while cleaning fhe alley, there is no de minimis exception in the ordinance. The Licensee admits he piaced the tabies on the sidewalk in front of the deli. Even if fhe ALJ accepted the Licensee's argument that he left the tabies there only for a matter of minutes, they wouid still constitute a violation of the sidewaik ordinance. In short, the Licensee's arguments are unpersuasive, and the ALJ finds that the City met its burden of proof in establishing the Licensee's violation of the sidewalk ordinance. The record therefore supports imposition of an appropriate fine. At the hearing, the City argued the Licensee's multiple violations should be a factor in considering the appropriate penalty. The ALJ notes the City oniy notified the Licensee of one violation. As such, only one violation should be considered in the determination of the appropriate fine. B. H. J. 13 Exs. 3 and 7. [y