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07-430RESOLUTION CITY OF SAINT PAUL, NIINNESOTA Presented By Council File # (`J 3 d Green Sheet # �3 (�� 7 WIIEREAS, Reese-Brooks Hospitality Industries LLC d/b/a Minnehaha Lanes (License ID#200000005952) located at 955 Seminary Ave. in Saint Paul received a Notice of Violation dated January 26, 2007, for violation of St. Paul Leg. Code § 238.04(2) on January 9, 2007; and WHEREAS, a hearing was held before an Administrative Law Judge on February 28, 20Q7, and a Report was issued on Mazch 20, 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; 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 now, therefore be it RESOLVED, that a fine of $500.00 is imposed against all licenses held by Reese-Brooks Hospitality Industries LLC d/b/a Minnehaha Lanes (License ID#200000005952) located at 955 Seminary Ave. in Saint Paul however $250.00 of that fine is suspended far 18 months on the condition that there be no further violarions of Chapter 238 of the Saint Paul Legislative Code ; and be it FURTHER RESOLVED that the $250.00 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 7udge 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. Requested by Depariment of. .._., .,.. �._......,,. „� ..,. ................. BY� % ,/ /�1/J/ _//�!/1.5�/7 // / i/ 7 � 0 � Approved by Mayor at By: � � BY: / � � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � Ieoartment/nfe�e/��....,.:1 i n..�_ �_:s:_._.�. . D � '/ � � Lp — Liceuse7lnspection/Envaoamot I o8-MAV-07 Contact Person & Phone: Rachei Gunderson zss��io � Assign Number Doc. Type: RESOLUTION E-DocumentRequired: Y DocumentContact: JulieKraus Co�act Pfione: 266-8776 �' 7ofa1 � of Signature Pages _(Clip AI! Lceations ior Signafure) Green Sheet NO: 3039477 0 •, 'censellnsp¢ctionlEnviron Prot 1 X,icense/inspeetioNEna�rou Prot Denartment Dirertnr 2 'ipAttornev 3 a or's Offce Ma or/Assistaut 4 oonc�l 5 ' Clerk (titv Cferk Approval of the attached resolution memoriatizing adverse action taken against a11 licenses held by Reese-Brooks Hospita[iry Industries, LLC, d/b/a Minnehaha Lanes (License ID#200000005952) fot the premises tocated at 955 Seminary Avenue in Saint Pau1. iaacions: Approve (A) or ReJe.ct (R): Personal Service Contracts Must Answer the Following Questioes: Planning Commission 9. Has this persoNfirm everworked under a contract forffiis departmenY? CIB Committee Yes No CiU7 S�ce Commission 2. Has this person/firtn ever been a ciry empfoyee? Yes No 3. Does this perso�rm possess a skifl nof normalfy pwsessed by any curzent city employee? + Yes No I Explain aii 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 May 2, 2007 to discnss the Adtninisha6ve L,aw Judges's Findings of Fact, Conclusions of Law and Recommendation from the administrative hearing held on February 28, 2007. Advantages If Approved: � Memorialization of Council acfion taken as a resu[t of the public heazing. RECff�ED �isadvantages If Approved: None. d 8 2007 MAYOR'S OFFICE Disadvantages If Not Approved: No memorializarion of Council action taken as a result of the public hearing. Transaction: Funtling Source: Financial lnformation: (E�cplain) Activity Number: �� 3"+�.�,^JS:Y.',�.��'� 9 i�l F➢ t7 �84LL'•J CostlRevenue Budgeted: May 8, 200712:25 PM Page 1 _, , OFFICE OF Tf� CITY ATTORNEY ✓ahn J. Choi, CiryAttarxey /�1 7 _/�3(J C� / 31 CITY OF SAINT PAUL Christopher B. Calernan, ?vI¢yo> �� Apri12, 2007 Telephone: 657 266-8710 Facsimde� 6�7 298-5619 ��f! �.. � NOTICE OF COUNCIL HEAR.ING Hairy R. Erkenbrack, Sr. Minnehaha Lanes 955 SeminaryAvenue St. Paul, MN 55104-1525 � � ��`��S O � w �� RE: All licenses held by Reese-Brooks Hospitality Industries, LLC, d/b/a Minnehaha Lanes for the premises located at 955 Seminary Avenue in Saint Paul OAH Docket No. 61-6020-17858-3 . u Dear Mr. Erkenbrack: Please take notice that a hearing to disucss the report of the Administrative Law Judge concerning the abov�mentioned licenses has been scheduled for Wednesday, May 2, 2007, at 5:30 p.m. in the City Council Chambers, Third Ploor, Saint Paul City Hall and Ramsey County Courthouse. You have the opporiunity to file exceptions to the report with the City Clerk at any time during normal 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 heazing. The Council will base its decision on the record of the proceedings before the Administrative Law Judge and on the emunents made and exceptions filed, but may depart from the recommendations of such 7udge as perxnitted by law in the exercise of its judgment and discretion. Sincerelg � U� Rachel Gunderson Assistant City Attomey cc: Diane Nordstrom, Office of Administrative Hearings, 100 Washington Squaze, Suite 1700, 100 Washina on Avenue South, Minneapolis, MN 55401 �/141ary Erickson, Council Secretary Christine Rozek, Deputy Director of LIEP Doris Erkenbrack, 1737-122nd Lane NW, Coon Rapids, MN 55448 Boa Lee, Community Organizer, Thomas-Da1e/District 7 Planning Council 689 North Dale Street, St. Paul, MN 55103-1644 CivtlDivision 400 Ciry Ha11 1� YYestKelloggBlvd. Saini Pau1, Minnesota 55102 AA-ADA-EEO Employer March 20, 2007 Shari Moore St. Paul City Clerk 290 City Hall 15 W Kellogg Blvd St. Paul, MN 55102 STATE OF MINNESOTA OFFICE OF AbMINISI`RATiVE HEARINGS 100 Washingfon Square, Suife 1700 100 Washington Avenue South Minneapolis, Minnesota 5 5401-2 1 3 8 -- - �- TECEPFION�(�72) 3�T76ti0 " M: (612) 341-7346 � � ti. �. _�'�7�=��"�� R ? 1 �i1C�7 5 i" '� S _ '_;•%�:;' -�. Re: /n the Matfer of the Licenses held by Reese-Brooks Hospitalify indusbies, LLC, d/b/a Minneha6a Lanes at 955 SeminaryAvenue.in Saint Pau OAH Docket No. 61-6020-17858-3 Dear Ms. Moore: Enclosed herewith and served upon you by maii is the Administrative Law Judge's FINDINGS OF FACT, CONCLUSIOiVS AND RECOMMENDATION in the above-entitled matter. Also enclosed is the official record, with the excepfion of the tape recorcting of the hearing. If you wouid iike a copy of that tape, please contact our offtce in writing or telephone (692) 341-7448. Our file in this matter is now being closed. Sincerely, � • '�-,�- � ��. �vl. KEV1N SNELL Administrative Law Judge . MKS:dsc Enclosure cc: Rachel Gunderson Harry Erkenbrack Telephone: (612) 370-0374 Providing Impartial Hearings for Govemment and Ci6zens An Equal Opportunity Employer Administrative Law Division &Administrative Services Workers' Compensation Hearings Division Woricers' Compensalion SetElement Division Facsimile: (6'12) 349-2665 Facsimile: (612} 349-269'I Facsimile: (612) 349-2634 • d�'�� • , 61-6020-17858-3 STATE OF MINNESOTA -- OFFICE OF ---- FOR THE CITY COUNCIL OF THE CITY OF ST. PAUL • In the Matter of the Licenses held by Reese-Brooks Hospitality Industries, LLC, dlb/a Minnehaha Lanes at 955 Seminary Avenue in Saint Paul FINDINGS OF FACl', CONCLUSIONS, AND RECOMMENDATION The above-entitled matter came on for hearing before Administrative Law Judge M. Kevin Snell on February 28, 2007, in Room 220 of the Saint Paul City HailiCourthouse. The record closed on February 28, 2007, at the conclusion of the hearing. Rachel Gunderson, Assistant City Attomey, Office of the City Attorney, 400 City Hail, 15 West Kellogg Blvd., Saint Paui, Minnesota 55102, represented the City of Saint Paul's Office of License, Inspections and Environmental Protection (LIEP). The Licensee appeared on its own behalf in the person of Mr. Harry Erkenbrack, co-owner of Licensee, without legai counsel. �19TICE This Report contains a recommendation and not a final decision. The Saint Paul City Council will make the final decision after reviewing the record and may adopt, reject or modify the Findings of Fact, Conclusions and Recommendation confained herein. Under Section 310.05 of the Saint Paul Legislative Cade, the City Counci4's final decision shall not be made until this Report has been made available to the parties to the proceeding and the Licensee has been provided an opportunity to present orai or written arguments alleging error on the part of the Administrative Law Judge in the application of the law or fhe interpretation of the facts and an opportunity to presenf argument relating to any recommended adverse action. The Licensee and any interested parties should contact Shari Moore, City Cferk, Saint Paul City Gouncil, 310 City Hall, Saint Paul, Minnesota 55102, to ascertain the procedure for presenting argument to the Council. STATEMENT OF ISSUES Should the Saint Paul City Council take adverse action against the Bowling Center, Entertainment, Food Vending, Gambling, Liquor, and Restaurant licenses held by the Licensee on the grounds that the Licensee failed to ensure that ashtrays not be provided in any area where smoking is prohibited? • Based upon ail of the files, records and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following: 1 .. FINDINGS OF FACT • 1. T(ie Licensee, Reese-Brooks Hospitality (ndustries, LLC, d/b/a --- MinRehaha Center - EntertairrmEn� Food Vendirr - , � , , c�---- - Gambling, Liquor, and Restaurant licenses from the City of Saint Paul, and has been fhe owner of the business since December 22, 2000.� 2. Minnehaha Lanes is a 92,000 square foot facility containing 40 bowling lanes (24 in one area and 16 in another area}, together with a bar, restaurant, banquet hall, main and satellite kitchens, and a basement storage area for food service equipment 3. Chapter 238 of fhe St. Paui Legisfafive Code ("Code"} regarding Public Smoking in Licensed Liquor Establishments and Restaurants (herein the "Smoking Ordinance") was passed by the St. Paul City Council on January 11, 2006, and became effective March 31, 2006. 4. A Memorandum dafed February 15, 2006, was mailed to all City of St. Paul bowfing center, liquor and restaurant licensees, noting that smoking is prohibited in all indoor areas, including basements and storage rooms 4 This memorandum was afso distribufed to aff participants, including Mr. Erkenbrack, at a February 15, 2006, meefing with ficensees at Mancinis, in St. Paui. 5. Also at the February 15, 2006, meeting at Mancini's, a draft LIEP • memorandum titled Enforcement scheme for the St. Paul smoking Ordinance was disfributed, containing the Smoking Ban Penalty Matrix, and stating in part: "4. Initial enforcement will essentially be complaint based although a routine check for violations of the Smoking Ordinance will be done during the regular food inspection at an estabiishment. ... 6. During routine inspections, inspecfors wi(( fook [sic] vioiations of fhe St. Paul Smoking Ordinance. As defined by the Ordinance, violations are: a. Ashtrays, mafches and lighters in any area where smoking is prohibited inciuding the dining area, break areas, bathrooms, or offices. b. No or inappropriate signage. ' Exhibit 1. Z Testimony of Mr. Erkenbrack, Ex. 10., test. of Abdinasir Museid, Environmental Health Specialist If, St. Paui Office of License fnspections, Sanifarian and Environmenfaf Healfh Specialisf registered with the State of Minnesota. 3 Ex. 3-7. ° Test. o� Christine Rozek, ^ueputy Diiecior, Ofi�ce oi License Inspections and Environmentai • Protection (L1EP), Ex. 4. 5 Id. 6 Ex. 5-2, see a/so Sec. 310.05(m) of the Code. � �� 3D c. A customer or employee smoking in the establishment."� • Paragraphs 2, 3, 4, and 5 of the memorandum specify how complaints will be ' --- — harrdted - arrd - tha�afterthree complaints; an �on=site inspection will conducted, and, if there is an apparent violafion witnessed by the inspector, and inspection report and any evidence will be sent to the Citizens Service Office for possible adverse action. There have been no complaints about smoking on the Licensed premises. 6. A LIEP memorandum dated March 8, 2006, was mailed to ali licensees subject to the Smoking Ordinance reminding them of the upcoming smoking ban, its requirements, and noted that "no smoking" signs would be provided free of charge. 7. Licensee received the "no smoking" signs from the City of St. Paul that state "TH{S ENTlRE ESTABLISHME�IT (S SMOKE FREE° and posted them at both of Minnehaha Lanes' outside entrances to public spaces, on or before fVlarch 31. 2006.�� 8. Licensee removed ail ashtrays from the public areas of Minnehaha Lanes and stored them in the basement on or before March 31, 2006. 9. Licensee's addifional efforts regarding compliance with the � Smoking Ordinance inciude: a. Minnehaha Lanes internet web home page, since the summer of 2006, opens with the banner: "Now Smoke Free! b. Sending out flyers to day care centers with "Smoke Free!" at the top. c. Revision of the Generai Rufes for employee of Minnehaha �anes to inciude: "14. No smoking in building. No smoking during a league shift. � Test. of Christine Rozek, Ex. 5. $ Ex. 5-1. 9 Ex.1-1. 10 Test. of Christine Rozek, Ex.6. " Test. of Josh Goodman, Harry Erkenbrack; Exs. 70, 14-1 and 14-2 12 Test. of narry Erkenbrack, where he noie�i ihat the ashtrays were stored "pending any further • developments in this never-ending smoking ban battle." 13 Test. of Harry Erkenbrack, Ex. 11. " Id., Ex. 12. K3 You can take a smoke break with the MOD's [Manager on Dufy] permission."� -- --- d. Distribution of - flyers - regarding - fhe - Smoking — OrdiRance - to — 6ow(ing (eague participanfs 6y tf�e (eague secretaries. e. Various employees telling bowling patrons who have been caught smoking in entryways befween the two sets of doors that they cannot smoke fhere and thaf they must go outside. f. Posting additional no-smoking signs between the two sets of doors at the two enfrances to public areas.� f. Mr_ Erkenbrack, owner of Licensee, telling an office employee caught smoking in an office area that she cannot smoke inside and must go outside to smoke. g. Mr. Mike Fletcher, who smoked +n a more? food and restaurant manager, telling the cook basement hallway that he cannot do that arty 10. Abdinasir Museid, an inspector with LIEP, visited Minnehaha Lanes on January 9, 2007, for a routine, tinannounced health inspection of the licensed estabfishment. He, along with Mike Fletcher, the restaurant manager, toured the main and satellite kitchens, the bar and restaurant, and the basement food equipment storage area. 11. During the inspection, Mr. Museid came across cigarette butts on the floor near a 1 1/2 foot, floor standing, ashtray fuli of cigarette butts in a basement hallway. When asked, Mr. F(etcher said it was a cook who was doing that No other ashtrays were found or seen by Mr. Museid. 12. As a result of the inspection, Mr, Museid issued an Inspection Report citing 8 non-critical deficiencies (including a deficiency for violations of the Minnesota Clean Indoor Air Act), and one critical deficiency for lack of a Minnesota Certified Food Manager. ts Test of Harry Erkenbrack, F�. 13. t6 Tesf of Josh Goodman, Dave Erickson, and Harry Erkenbrack, �� Id. 1e Test. of Dave Erickson, 79 Test. of Harry Erkenbrack. zo � 21 Test. of Abdinasir Museid. zz /d. zs /d. 24 Ex. 2-2, requiring "ftemove ashtrays from the nonsmokiny areas" and requiring that entrances be posted with sigrts stafing: "THIS ESTABIISHMENT IS A[sic] SMOKING AREA IN ITS ENTIRETY." '� Ex. 2. � • • � D r • 13. The Inspection Report and the Smoking Ordinance were reviewed by the LEIP Deputy Director, who forwarded the Report and licensing file on to the City Attomey for adverse action 2 In addition, the Licensee's licensing history en ry fa� 9; 2007, incf�dec�fF entry ffiafflie mspecfor `observed an -- " ashtray in fhe basement of the bowling alley that is either used by employees or patrons. This is a violafion of fhe St. Paul prohibition of smoking in liquor and food establishmenfs (LCC 238). Matrix penalty (LCC310.05(m)(2) is $500 for a firsf violafion. CAR." 14. There is no evidence, other than the existence of cigarette butts and an ashtray, that any patrons ar any employees other than one cook smoked in the basement storage area. 15. By letter dated January 26, 2007, fhe City's LIEP Office informed the Licensee that Licensee had violated the Smoking Ordinance by: not ensuring that ashtrays are not provided in an area where smoking is prohibited; and failure to post the required signs stating that "This Establishment Is A Smoke-�'t�ee Area In It's Entirety." The letter further informed the Licensee that LEIP was recommending a$500.00 fine. Licensee has received no other Notices of Violations? 16. Licensee removed the ashtray found in the basement. The • inspector dia not check the basement during a January 31, 2007, inspecfion at Minnehaha Lanes, even though compliance was required by January 24, 2007, 16. By letter, Licensee requested a hearing before an Administrative Law Judge. 17. The City thereafter issued the Notice of Hearing setting this matter on for hearing before the Administrative Law Judge. The Notice was served on the Licensee by mail, and filed wifh the O�ce of Administrative Hearings. 18. The hearing was held in accordance with the Notice. 19. At fhe conclusion of the presentation of all evidence at the hearing, the City Attorney withdrew the allegation of the vioVation of Section 238.04(1) of the Smoking Ordinance provision regarding the posting of no smoking signs. Z6 Testimony of Christine Rozek, LEIP Deputy Director. 27 Ex. 1-1. 28 Ex. 7-1. � 29 Tesi. oi Harry Erkenbrack. 3o Test. of Abdinasir Museid, Ex. 2-2. 3t Ex. 8. 32 Ex. 9. Based upon the foregoing Findings of Fact, the Adminisfrative Law Judge � makes the following: -_ _ -- - - - CONCLUSIONS— _- --- — -- - - 1. The Sainf Paul City Council and the Administrative Law Judge have jurisdiction in fhis matter pursuant to the St. Paul Legislative Code § 310.05 and Minn. Stat. § 44.55 (2004). 2. The hearing was conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and applicable portions of the procedures set forth in section 310.05 of the Saint Paul Legislative Code. 3. The City has given proper notice of the hearing in this matter and F�as fuffilied a(I refevant procedural requirements of law and rule. 4. The City bears the burden in this mafter of proving by a preponderance of fhe evidence that adverse action is warranted with respect to the Licensee's licenses. 5. Chapter 390 of the Saint Paul Legislative Code contains general provisions relating to licenses issued by the City. Section 310.06(b)(5) and (6) of the Saint Paul Legisiative Code specifies that adverse action may be taken when • "[tJhe licensee . . . has violated . . . any of the provisions of . . . any . . . ordinance ... reasonably related to the licensed activity ...." 6. Adverse action is defined in Saint Paul Legislative Code § 310.01 to incfude fhe revocation or suspension of licenses and the imposition of fines. Section 310.05(I) provides, in applicabie part: "(I) lmposition of Fines. The council may impose a fine upon any licensee or license appiicant as an adverse license action. A fine may be in such amount as the council deems reasonabie and appropriate, having in mind the regulatory and enforcemenf purposes embodied in the particular licensing ordinance. A fine may be in addition to or in fieu of other adverse action in the sole discretion of the council." 7. The St. Paul Legislafive Code provides ff�at, for a first violation, the presumpfive sanction for violation of a provision of the legislative code relating to the licensed activity is a fine in the amount of $500 3 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 so 3a 8. There are subsfanfiaf or compefling reasons in the record fo jusfify a downward deviation from the presumptive penalty in this case. ' Sec. 310.05(m)(2) of the Code. • �' Sec. 310.05(m) of fhe Code. 0 07-��D • 9. Section 238.04 of the Smoking Ban Qrdinance, Responsibilities of Proprietors, provides as follows: "The proprietor or other person in cfiarge of a bar or resfaurant shall: titled (1) Post "no smoking" signs that comply with the Minnesota Clean IndoorAirAct Rules, Minnesofa Rules, part 4620.0500, as amended from time to time; (2) Ensure that ashtrays, lighters, and matchbooks are not provided in any area where smoking is prohibited; and (3} Ask any person who smokes in an area where smoking is prohibited to refrain from smoking and, if the person does not refrain from smoking after being asked to do so, ask the person to leave. If the person refuses to leave, the proprietor or person in charge of the bar or restaurant shall contact the police department and ask that the person be trespassed from the establishment." • 10. Minnesota Rules section 4620.0500 provides in applicable part: "Subpart 1. Posting. ... the statement "Smoking is prohibited except in designated areas" or a similar statement mGSt be cons�icuously poste� on �or immediately inside of all outside entrances to a public place. Subp. 2. Statement on sign. All signs used to identify a location where the responsibie person prohibits smoking in an entire public place or public meeting must use the sfatement, "No smoking is permitted in this entire establishmenY' or a similar statement. The conspicuousiy posted eithec on or immediate4y inside entrances to the public pface. ... • sign must be 04 al! outside 11. The City failed to demonstrate by a preponderance of the evidence that fhe Licensee failed to comply with Secfion 238.04(1) of the Saint Paul Legislative Code regarding the posting of no smoking signs. 12. Secfion 2.02 of the Saint Paul Legislative Code specifies that "[w]ords and phrases shali be construed so far as possible in their plain, ordinary and usual sense except that technical words and phrases having a peculiar and recognized meaning in law shall be understood according to their technical import." 7 13. It is reasonabfe and consistenf with the plain, ordinary, and usual sense of the term "provide° for fhe City to view the presence of an ashfray filled with cigarette butt in a ba hallway as a faifure to "Ensure that ashtrays, ligfi�s, and matchbooks are nof" p�ovided Pn any - a�ea where smokmg - is - prohibited." 14. The City demonstrated by a preponderance of the evidence that fhe Licensee faifed fo compfy with Section 238.Q4(1) of the Saint Paul Legislative Code regarding Licensees' obligations to ensure that ashtrays not be provided in areas where smoking is prohibited. 15. The Licensee's viofation of Section 238.�4(1) of the Saint Paul Legislative Code, is reasonably related to Licensee's Restaurant license. 16. The Licensee's violation of Section 238.04(1) of the Saint Paui Legislative Code, in this instance, is not reasonably related to Licensee's Bowling Center, Entertainment, Food Vending, Gambling, or Liquor licenses. 17. The Council may impose some or all of the costs of a contesfed case hearing if any one of several conditions is met, including if "the appiicant or licensee was sufficiently in controi of the situation and fherefore could have reasonably avoided the violation.° 18. The Licensee was sufficiently in contro(, as shown this case as applied to the responsibilities of the Smoking Ordin� the use of the ashfray in the storage area by the cook. However, violation was vnsupported by the facts or the law arid was not then end of the hearing and after the presentation of aIl evidence portion of the costs, if any, of the hearing could be imposed c pursuant to Section 390.05(k) of the St. Paul Legislative Code. by the facfs of ance, to prevent the alleged sign withdrawn until A fair, prorated m the Licensee 19. A fine of $150.00 or less wouid be a reasonable and appropriate adverse action, having in mind the regulatory and enforcement purposes embodied in the Smoking Ordinance. 20. These Conclusions are reached for the reasons set forth in fhe accompanying Memorandum, which is hereby incorporated by reference in ffiese Conciusions. 35 Which means to supply or make something available, Merriam Webster On Line Dictionary, ,hffp://w�rsw. �nsrrfam-r,rebsfer.com/dicfionan�/arovide 3s Sec. 310.06(b)(6) a. 37 Section 310.05 (k) of the Code. � • • E:3 a�- y-�� • 21. The Administrative Law Judge adopts as Conclusions any Findings that are more appropriafely described as Conclusions, and as Findings any Conc{vsions that are more appropriateiy described as Findings. . Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS RESPECTFULLY RECOMMENDED: That the Saint Paul Cify Council take adverse action against the restaurant license held by Reese-Brooks Hospitality Industries, LLC, d/b/a Minnehaha Lanes. Dated: March 20. 2007 •'��' -C �«`_ C�� M. KEVIN SNELL Administrative Law Judge • Reported: Tape recorded (iv✓o (2) tapes); no transcript prepared. � 0 MEMORANDUM � The City argues in fhis proceeding that the presumptive penaity of a ------ $500:OO�fin�fzira first�i�latron is appraprrate bec.�use h�afth in�pectoruras - "under the impression" that the manager was aware that smoking was going on, and the many cigarette butts found in and around the ashtray. The evidence is contradictory about fhe restaurantlfood manager's knowledge of the cook smoking in the basement. The inspector, Mr. Museid, testified that the manager told him fhat he (the manager) knew a cook was the one smoking in fhe basement. After receiving the Notice of Violation, Mr. Erkenbrack was told by the manager that yes, he did discover fhat the cook smoked in the basement, and that he told the cook that he couldn't do that anymore. There is no evidenee in the record as to when the manager knew of the smoking cook, or how long, if at all, the cook continued to smoke after being told he couldn't do that, except for the large amount of cigaretEe butts found by the hea(th inspector. The Administrafive Law Judge cannot reach a decision on this issue by speculating whether the cook continued to smoke with or without managemenYs knowledge or whether or not some of fhe cigarette but#s were still sitting in the ashtray from before the smoking ban and whoever put the ashtray in the basement simply failed to ciump them out. The Licensee asserts that the ashtray wasn't "provided" for anyone to s�ioke beeause it was in a basement storage area, He argued that there would • have been ofher employees smoking down there if his managers were allowing smoking in the basement. However, the determining facts are that the ashtray was in a hallway (not behind closed doors of a locked storage area) in the basemertf and cigarefte butts were on the floor around the ashtray. The evidence is clear that no other ashtrays were observed in the haliway. The ashtrays put into storage must be in another storage location or room in the basement, away #rom access by employees. The Smoking Ordinance's requiremenfs on the proprietor's and any other persons in charge are rigid, along the lines of stricf liability: Proprietors must "ensure° that ashtrays are not "provided" in a non- smoking area. Allowing an ashtray in a hal)way of a non-smoking area is "providing.° Finally, although Licensee argued in closing that the Xcel Energy Center has received warnings for Smoking Ordinance violations, he offered no basis for such a statement and the Administrative Law Judge did not consider the statement as evidence in making 4his decision. A downward deviation from the presumptive $500.00 penaffy in this case would be appropriate because the Administrative Law Judge believes that there are subsfantial and compeiling reasons in the record to jusfify such a determination. Firsf, the alleged violafion of the sign posfing requirement was unsupported by the evidence. There was festimony that the inspector told fhe manager that fhere must be a non-smoking sign posted in the basement. Such a �ostirg may b$ des�rabie, but it is rot a basis for a violation. The law requires • 38 Findings of Fact 11. 10 � 7 ��, • posting of no smoking signs at outside entrances to public spaces. The basement, or ifs entrance is an inside entrance to a private, non-pubfic space. The 4icensing record indicates that the ashtray was used by patrons. Again, there — is no evidence for suc�a conclusion. TF�e CEIP conclusions wePe a part of tfie - information presented to fhe City Aftorney for issuance of the eventual Notice of Violation. The Licensee made numerous efforts to enforce and promote the non- smoking nature of Minnehaha Lanes, and was at all times in compfete compiiance wifh the legal requirements for sign posting. A complete lack of required sign posfings wouid indicate a disregard for the requirements of the law. The Administrative Law Judge did not see such disregard by the Licensee.The City Attorney appropriately dismissed the alleged sign violation at the end of the hearing. Finally, the Administrafive Law Judge finds it unusual fhat adverse action would be taken against a licensee for a"non-criticai" deficienc�, yet no adverse action was taken against the licensee fior a"critical" deficiency 3 Under the circumstances and for the same reasons stated above regarding a downward departure for adverse action, it would be unreasonable to allocate any substantial portion of the costs of this matter to the Licensee. The Administrative Law Judge determined that the violation was only related to the restaurant license because the offending ashtray was in the basement food storage area and the smoking offender was a cook. There was no Pvidence fha± the hasement food storage area or the ashtray �vere in any related • to entertainment, gambling, liquor, or the 40 bowling lanes, all of which are upstairs in the building 40 While the City introduced sufficient evidence to support the imposition of discip(inary action against the Licensee, the City may wish to consider action short of fhe presumptive fine for a first offense, particu{arly in light of the reasons stated above, fhe clear record of the Licensee and its consistent etForts to otherwise promote and enforce the requirements of the Smoking Ordinance. M.K.S. i 39 See, Ex. 2-2 & 2-3. 4D Ex. 10. 11 ��- �.� CITY OF SAINT PAUL Christopher B. Coleman, Mayor April 2, 260 7 OFFICE OF THE CITY ATTORNEY John J Choi, CityAttomey Civil Division 400CityHall Telephone.651266-8710 ISWestKeZloggBlvd FacsimiZe:657298-�679 Sa'vmt Paul, Minnesota 55102 �'�� NoTicE oF courrcu, a�nRnvc Harry R. Erkenbrack, Sr. Minnehaha Lanes 955 SeminaryAvenue St. Paul, MN 55104-1525 '�/" � R �� jo0, c� RE: All licenses held by Reese-Brooks Hospitality Industdes, LLC, d/b/a Minnehaha Lanes for the premises located at 955 Seminary Avenue in Saint Paul OAH Docket No. 61-6020-17858-3 Dear Mr. Erkenbrack: Please take notice that a heazing to disucss the report of the Administrative Law Judge concerning the above-mentioned licenses has been scheduled for Wednesday, May 2, 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 exceptions to the report with the City Clerk at any time daring normal business hours. You may also present oral or written azgument to the council at the hearing. No new evidence will be received or testimony talcen at this heazing. The Council will base its decision on the record of the proceedings before the Administrative Law Judge and on the arguments made and excepfions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its }udgment and discretion. Sincerely, _� U�.I.�CA�X, C� Rachel Gunderson Assistant City Attorney cc: Diane Nordstrom, Office of Administrative Heazings, 100 Washington Square, Suite 1700, 100 Washington Avenue South, Miruieapolis, MN 55401 �/i�lary Erickson, Council Secretary Christine Rozek, Deputy Director of LIEP Doris Erkenbrack, 1737-122nd Iane NW, Coon Rapids, MN 55448 Boa Lee, Community Organizer, Thomas-Dale/District 7 Planning Council 689 North Dale Street, St. Paul, MN 55103-1644 AA-ADA-EEO Empioyer STATE OF MINNESOTA OFFICE OF ADI�IINIS�'RATIVE HEARINGS 100 Washingfon Square, Suite 1700 100 Washingfon Avenue South Minneapolis, Minnesofa 55401-2138 ��-��o ��ePHOH��srz� sansoo T7Y: (612) 341-7346 March 20, 2007 ` �� Shari Moore �� ! �� St. Paul City Clerk �� 290 City Hall 15 W Kellogg Blvd St. Paul, MN 55102 Re: In the Matter of the Licenses held by Reese=Brooks Hospitality lndusfries, lLC, d/b/a Minnehaha Lanes at 955 Seminary Avenue in Saint Pau OAH Docket No. 61-6020-17858-3 Dear Ms. Moore: Enclosed herewith and served upon you by mail is the Administrative Law Judge's FINDINGS OF FACT, CONCLUSIOiVS AiVD RECOMMEfVDATi ION in the above-entitled matter. Also enc(osed is the official record, with the excepfion of the tape recording of the hearing. If you would like a copy of that tape, please contact our office in writing or telephone (672) 341-7448. Our file in this matter is now being closed. Sincerely, • �� • '� �'�C: M. KEVIN SNELL Administrative Law Judge MKS:dsc Enclosure Telephone: (612} 370-0374 cc: Rachel Gunderson Harry Erkenbrack Providing Imparfial Hearings for Government and Citizens An Equal Opportunity Employer Administrative Law Division & Administrative Services Workers' Compensation Hearings Division Workers' Compensation Settlement Division Facsimife: (6'12) 349-2665 Facsimile: (612) 349-2691 Facsimile: (612) 349-2634 � 7��36 61-6020-17858-3 STATE OF M(NNESOTA ICE OF ADMINISTRATIVE --- - - FOR THE CITY COUNCIL OF THE CITY OF ST. PAUL In the Matter of the Licenses heid by Reese-Brooks Hospitality Industries, LLC, d/b/a Minnehaha Lanes at 955 Seminary Avenue in Saint Paul FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION The above-entitled matter came on for hearing before Administrative Law Judge M. Kevin Snell on February 28, 2007, in Room 220 of the Saint Paul City Hall/Courthouse. The recard closed on February 28, 2007, at the conclusion of the hearing. Rachel Gunderson, Assistant City Attorney, Office of the City Attorney, 400 City Hall, 15 West Kellogg Blvd., Saint Paul, Minnesota 55102, represented the City of Saint Paul's Office of License, Inspections and Environmental Protection (LIEP). The Licensee appeared on its own behalf in the person of Mr. Harry Erkenbrack, co-owner of Licensee, without legal counsel. N9TIC� This Report contains a recommendation and not a final decision. The Saint Paul City Council will make the final decision after reviewing the record and may adopt, reject or modify the Findings of Fact, Conclusions and Recommendation contained herein. Under Section 310.05 of the Saint Paul Legislative Code, the City Council's final decision shall not be made until this Report has been made available to the parties to the proceeding and the Licensee_ has been provided an opportunity to present oral or written arguments alleging error on the part of the Administrative Law Judge in the application of the law or the interpretation of the facts and an opportunity to present argument relating to any recommended adverse action. The Licensee and any interested par�ies should contact Shari Moore, City Clerk, Saint Paul City Council, 310 City Hall, Saint Paul, Minnesota 55102, to ascertain the procedure for presenting argument fo the Council. STATEMENT OF ISSUES Should the Saint Pau( City Council take adverse action against the Bow(ing Cenfer, Entertainment, Food Vending, Gambling, Liquor, and Restaurant licenses held by the Licensee on the grounds that the Licensee failed to ensure that ashtrays not be provided in any area where smoking is prohibited? 8ased upo� aii of the files, records and proceedings herain, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Juiige makes the following: 1 D�-�3� .. FIND(NGS OF FACT 1. Tiie Licensee, Reese-Brooks Hospitality fndust�ies, LLC, d/b/a --- Minrtehaha Center, Entertainment; Food— Vendin� -- Gambling, Liquor, and Resfaurant licenses from the City of Saint Paul, and has been the owner of the business since December 22, 2000.' 2. Minnehaha Lanes is a 92,000 square foot facility containing 40 bowling lanes (24 in one area and 16 in another area}, together with a bar, restaurant, banquet hall, main and satellite kitchens, and a basement storage area for faod service equipment Z 3. Chapter 238 of the St. Paul Legislative Code ("Code") regarding Public Smoking in Licensed Liquor Establishments and Restaurants (herein the "Smoking Ordinance") was passed by the St. Paul City Council on January 11, 2006, and became effective March 31, 2006. 4. A Memarandum dated February 15, 2006, was mai{ed to al{ City of St. Paul bowling cenfer, liquor and restaurant licensees, noting that smoking is prohibited in all indoor areas, including basements and storage rooms. This memorandum was also distributed to ali participants, including Mr. Erkenbrack, at a February 15, 2006, meeting with licensees at Mancinis, in St. Paul. 5. Also at the February 15, 2006, meeting at Mancini's, a draft LIEP memorandum titled Enforcement scheme for the St. Paul smoking Ordinance was distributed, containing the Smoking Ban Penalty Matrix, and stating in part: "1. Initial enforcement will essentially be complaint based although a routine check for violations of the Smoking Ordinance will be done during the regular food inspection at an establishment. ...' 6. During routine inspections, inspectors will look [sic] violations of the St. Paul Smoking Ordinance. As defined by the Ordinance, violations are: a. Ashtrays, matches and lighters in any area where smoking is prohibited including the dining area, break areas, bathrooms, or offices. 6. No or inappropriate signage. ' Exhibit 1. 2 Testimony of Mr. Erkenbrack, Ex. 10., test. of Abdinasir Museid, Environmental Heaifh Specialist Ii, St. Paul Offce of License Inspections, Sanitarian and Environmental Heaith Specia{ist registered with the State of Minnesota. 3 Ex. 3-7. 4 Test. o� Christine Rozek Depuiy Ciiecior, Oi�ice of License inspections and Environmentai Profection (LIEP), Ex. 4. 5 Id. 6 Ex. 5-2, see a/so Sec. 310.05(m) of the Code. 2 D�-�3d c. A customer or employee smoking in fhe establishment."� Paragraphs 2, 3, 4, and 5 of the memorandum specify how complaints wi{f be ` -�— — handled - and - that - afterthree complaints; an on=site inspection vrill --- ---- - and, if there is an apparenf violafion wifnessed by the inspector, and inspection report and any evidence will be sent to the Citizens Service Office for possible adverse acfion. 7here have been no complaints about smoking on the Licensed premises. 6. A LIEP memorandum dated March 8, 2006, was mailed to all licensees sub}ect 4o the Smoking Ordinance reminding them of the upcoming smoking ban, its requirements, and noted that "no smoking" signs would be provided free of charge.' 7. Licensee received the "no smoking" signs from the City of St. Paul that state "THIS ENTIRE ESTABLISHMENT IS SNtOKE FREE" and posted them at both of Minnehaha Lanes' outside entrances to public spaces, on or before March 31 , ZOO6. 8. Licensee removed ali ashtrays from the pubiic areas of Minnehaha Lanes and stored them in the basement on or before March 31, 2006. 9. Licensee's additional efforts regarding compliance with the Smoking Ordinance inciude: a. Minnehaha Lanes internet web home page, since the summer of 2006, opens with the bannes: "Now Smoke Free!13 b. Sending out flyers to day care centers with "Smoke Free!" at the top. c. Revision of the General Rufes for empioyee of Minnehaha Lanes to include: "14. No smoking in building. No smoking during a league shift. ' Test. of Cfiristine Rozek, Ex. 5. $ Ex. 5-1. 9 Ex.1-1. 70 Test. of Christine Rozek, Ex.6. " Test. of Josh Goodman, Harry Erkenbrack; Exs. 10, 14-1 and 14-2 12 Test. oi harry Erkenbrack, where he �aied ih�i the ashtrays were stored "pending any further developmenfs in this never-ending smoking ban battle." 73 Tesf. of Harry Erkenbrack, Ex. 11. 74 (d.; Ex. 12. 3 D� You can take a smoke break with the MOD's [Manager on �utYl permission °� — ------ d- - Disfribution -- of - flyers - regarding the to - --- - - bowling league participants by the league secretaries. e. Variaus empioyees telling bowiing patrons who have been caught smoking in entryways befween the two sets of doors that they cannot smoke there and that they must go outside." f. Posting additional no-smoking signs beiv✓een the iwo sets of doors at the two entrances to public areas. f. Mr. Erkenbrack, owner of Licensee, telling an office employee caught smoking in an office area that she cannot smoke inside and must go outside to smoke. g. Mr. Mike Fletcher, food and restauranf manager, telling the cook who smoked in a baseme�t ha4lway that he cannot do that any more? 10. Abdinasir Museid, an inspector with LIEP, visited Minnehaha Lanes on January 9, 2007, for a routine, unannounced health inspection of the licensed estabiishment. He, along with Mike Fletcher, the restaurant manager, toured the main and satellite kitchens, the bar and restaurant, and the basement food equipment storage area. 11. During the inspection, Mr. Museid came across cigarette butts on the floor near a 1 1/2 foot, floor standing, ashtray full of cigarette butts in a basement hallway. When asked, Mr. Fletcher said it was a cook who was doing that Z No other ashtrays were found or seen by Mr. Museid2 12. As a result of the inspection, Mr. Museid issued an lnspection Report citing 8 non-critical deficiencies (including a deficiency for violations of the Minnesota Clean Indoor Air Act)?' and one critical deficiency for lack of a Minnesota Certified Food Manager. '$ Test. 04 Harry Erkenbrack, Ex. 13. 16 Test. of Josh Goodman, Dave Erickson, and Harry Erkenbrack, "!d. 18 Test. of Dave Erickson. t9 Test. of Harry Erkenbrack. zo !d. 2t Test. of Abdinasir Museid. zz Id. zs /d. 24 Ex. 2-2, requiring "Remove ashtrays from the nonsmoking areas" and requiring thai entrances be posted with sigrts stating: "THIS ESTABLISHMENT IS A[sic] SMOKING AREA IN ITS ENTtRETY." zs Ex. 2. 0 0��3U 13, The lnspection Report and the Smoking Ordinance were reviewed by the LEIP Deputy Director, who forwarded fhe Report and licensing file on to the City Attorney for adverse action 2 [n addition, the Licensee's licensing history -- en ry for 8; 2007, incfuaecf fFie entry fhaf inspecto� `obserGed an - ashfray in fhe basement of fhe bowling alley that is eifher used by employees or patrons. This is a violation of the St. Paui prohibition of smoking in liquor and food establishments �LCC 238). Matrix penalty (LCC310.05(m)(2) is $500 for a firsf violation. CAR." 14. There is no evidence, other than the existence of cigarette butts and an ashfray, that any patrons or any employees other than one cook smoked in the basemenf storage area. 15. By letter dated January 26, 2007, the City's LIEP Office informed the Licensee that Licensee had violated the Smoking Ordinance by: not ensuring that ashtrays are not provided in an area where smoking is prohibited; and failure to post the required signs stating that "This Establishment Is A Smoke-Free Area In It's Entirety." The letter further informed the Licensee that LEIP was recommending a$500.00 fine. Licensee has received no other Notices of Violations. 16. Licensee removed the ashtray found in the basement. The inspecfor oid no4 cneck tne basement during a January 31, 2007, inspeciion ai Minnehaha Lanes, even though compliance was required by January 24, 2007. 16. By letter, Licensee requested a hearing before an Administrative Law Judge. 17. 7he City thereafter issued the Notice of Hearing setting this matter on for hearing before the Administrative �aw Judge. The Notice was served on the Licensee by mail, and filed with the Office of Administrative Hearings. 18. The hearing was held in accordance with the Notice. 19. At the conclusion of the presentation of all evidence at the hearing, the City Attorney withdrew the allegation of the violation of Section 238.04(1) of the Smoking Ordinance provision regarding the posting of no smoking signs. 26 Testimony of Christine Rozek, LE1P Deputy Director. 27 Ex. 1-1. za �. 7-1. 29 i esf. of Harry Erkenbrack. 3o Test. ofAbdinasirMuseid, Ex. 2-2. s � Ex. 8. sz Ex. 9. 5 0��3 D Based upon the foregoing Findings of Facf, the Administrative Law Judge makes the following: - - -- - CONCL - USIONS — - - 1. The Saint Paul City Council and fhe Administrafive Law Judge have jurisdiction in thls matter pursuant to the Sf. Paul Legislative Code § 310.05 and Minn. Stat. § 14.55 (2004). 2. The hearing was conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and applicable portions of the procedures set forth in section 310.05 of the Saint Paul Legislative Code. 3. The City has given proper notice of the hearing in this matter and has fulfilled all relevant procedural requirements of law and rule. 4. The City bears the burden in this matter of proving by a preponderance of the evidence that adverse action is warranted with respect to the Licensee's lioenses. 5. Chapter 310 of the Saint Paui Legislative Code contains general provisions relating to licenses issued by the City. Section 310.06(b)(5) and (6) of the Saint Pau4 Legislative Code specifies that adverse action may be taken when "[t]he licensee . . . has violated . . . any of the provisions of . . . any . . . ordinance ._. reasonably related to the ficensed activity ...." 6. Adverse action is defined in Saint Paul Legislative Code § 310.01 to include the revocation or suspension of licenses and the imposition of fines. Section 310.05(I) provides, in applicable part: "(I) lmposition of Fines. The councii may impose a fine upon any licensee or license applicant as an adverse license action. A fine may be in such amount as the council deems reasonable and appropriate, having in mind the regulatory and enforcement purposes embodied in the particular licensing ordinance. A fine may be in addition to or in lieu of other adverse action in the sole discretion of the council." 7. The St. Paui Legislative Code provides that, for a first violation, the presumptive sanction for violation of a provision of the 4egislative code retafing to the licensed activity is a fine in the amount of $500. 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 fo do so. 8. There are substantial or compelling reasons in the record to justify a downward deviation from fhe presumptive penalty in fhis case. � 33 Sec. 310.05(m)(2) of the Code. 34 Sec. 310.05(m) of ihe Code. 0 6 �7 �3G 9. Section 238.04 of the Smoking Ban Ordinance, titled Responsibilities of Proprietors, provides as follows: "The proprietor or other person in charge of a bar or restaurant shall: (1) Post "no smoking" signs that comp4y with the Minnesota Ciean Indoor Air Act Rules, Minnesota Rules, part 4620.0500, as amended from time to time; (2) Ensure that ashtrays, lighters, and matchbooks are not provided in any area where smoking is prohibited; and (3} Ask any person who smokes in an area where smoking is prohibited to refrain from smoking and, if the person does not refrain from smoking after being asked to do so, ask the person to leave. If the person refuses to leave, the proprietor or person in charge of the bar or restaurant shall contact the police department and ask that the person be trespassed from the establishment." 10. Minnesota Rules section 4620.0500 provides in applicable part: "Subpart 1. Posting. ... the statement "Smoking is prohibited except in designated areas" or � similar statement mGSt be conspicuously posfed on or immediately inside of all outside entrances to a public piace. Subp. 2. Statement on sign. All signs used to identify a location where the responsible person prohibits smoking in an entire pubiic place or public meeting must use the statement, "No smok+ng is permitted in this entire establishmenY' or a similar statement. The sign must be conspicuous(y posted either on or immediate(y inside of ail outside entrances to the pubiic place. ..." 11. The City failed to demonstrate by a preponderance of the evidence that the Licensee fiailed to comply with Section 238.04(1) of the Saint Paul Legislative Code regarding the posting of no smoking signs. 12. Section 2.02 of the Saint Paul Legislative Code specifies that "[w]ords and phrases shall be construed so far as possible in their plain, ordinary and usua( sense except that technical words and phrases having a peculiar and recognized meaning in law shall be understood according to their technical import." 7 D7 13. It is reasonable and consistent with the plain, ordinary, and usual sense of the term "provide" for the City to view the presence ofi an ashtray filied with cigarefte butts in a basement hallway as a failure to "Ensure fhat ashtrays, --�-- - hg�ifrs, and mafcfi600ks are not provided Pn any "area wfie�e "smoking - prohibited." 14. The City demonstrated by a preponderance of the evidence that the Licensee failed to comply with Section 238.04{1) of the Saint Paul Legislative Code regarding Licensees' obligafions to ensure that ashtrays not be provided in areas where smoking is prohibited. 15. The Licensee's violation of Secfion 238.04(1) of the Saint Paul Legislative Code, is reasonably related to Licensee's Restaurant license. 16. The Licensee's violation of Section 238.04(1) of the Saint Paul Legislative Code, in this instance, is not reasonabiy related to Licensee's Bowling Center, Entertainment, Food Vending, Gambling, or Liquor licenses. 17. The Council may impose some or all of the costs of a contested case hearing if any one of several conditions is met, including if "the applicant or licensee was sufficiently in control of the situation and therefore could have reasonabiy avoided the violation." 18. The Licensee was sufficientfy in control, as shown by the facts of this case as applied to the responsibilities of the Smoking Ordinance, ta prevent the use of the ashtray in the storage area by the cook. However, the alleged sign violation was unsupported by the facts or fhe law arid was not withdrawn until then end of the hearing and after the presentation of all evidence. A fair, prorated portion of the costs, if any, of the hearing could be imposed on the Licensee pursuant to Section 310.05(k) of the St. Paul Legislative Code. 19. A fine of $150.00 or less would be a reasonable and appropriate adverse action, having in mind the regulatory and enforcement purposes embodied in the Smoking Ordi�ance. 20. These Conclusions are reached for the reasons set forth in the accompanying Memorandum, which is hereby incorporated by reference in these Conclusions. 35 Which means to supply or make something available, Merriam Webster On Line Dictionary, h#tn://u�rnv..merrfam-asebsfer. com/dicfio�an�/pro vide as Sec. 310.06(b)(6) a. 37 Section 310.05 (k) of the Code. ��-�3� 21. The Administrative Law dudge adopts as Canc{usions any Findings that are more appropriafely described as Conclusions, and as Findings any Conc4usions that are more appropriately described as Findings. . Based upon the fioregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATiON IT IS RESPECTFULLY RECOMMENDED: That the Saint Paul City Council take adverse action against the restaurant license held by Reese-Brooks Hospitality Industries, LLC, d/bla Minnehaha Lanes. Dated: March 20, 2007 '�� `��i'�� M. KEVIN SNELL Administrative Law Judge Reported: Tape recorded (two (2) tapes); no transcript prepared. � � ��30 MEMORANDUM l"he City argues in this proceeding that the presumptive penalty of a - �500. - OO�fine foi`a firstviolaf�on is appropT�afe because the health "under fhe impression" fhat the manager was aware that smoking was going on, and the many cigarette butEs found in and around the ashtray. The evidence is contradictory about the restaurant/food manager's knowledge of fhe cook smoking in the basement. The inspector, Mr. Museid, tesfified that the manager told him thaf he (the manager) knew a cook was the one smoking in the basement. After receiving the Notice of Violation, Mr. Erkenbsack was told by the manager that yes, he did discover that the cook smoked in the basement, and that he told the cook that he couldn't do that anymore. There is no evidence in the record as to when the manager knew of the smoking cook, or how long, if at all, the cook continued to smoke after being toid he couldn't do that, except for the large amount of cigarette butts found by fhe health inspector. The Administrative Law Judge cannot reach a decision on this issue by speculating whether the cook continued to smoke with or without managemenYs knowledge or whether or not some of the cigarette butfs were still sitting in the ashtray from before the smoking ban and whoever put the ashtray in the basement simply failed to dump them out. The Licensee asserts that the ashtray wasn't "provided" for anyone to s�oke becaUse it was in a basernent storage area. Fie argued that there would have been ofher employees smoking down there if his managers were allowing smoking in the basement. However, the determining facts are that the ashtray was in a haliway (not behind closed doors of a locked storage area) in the basement and cigarette butts were on the floor around the ashtray. The evidence is clear that no other ashtrays were observed in the hallway. The ashtrays put into storage must be in another storage location or room in the basement, away from access by employees. The Smoking Ordinance's requirements on the proprietor's and any other persons in charge are rigid, along the lines of strict liability: Proprietors must "ensure" that ashtrays are not "provided" in a non- smoking area. Allowing an ashtray in a haliway of a non-smoking area is "providing." Finally, although Licensee argued in closing that the Xcel Energy Center has received warnings for Smoking Ordinance violations, he offered no basis for such a statement and the Administrative Law Judge did not consider the statement as evidence in making this decision. A downward deviation from the presumptive $500.00 penalty in this case would be appropriate because the Administrative Law Judge believes that there are substantial and compelling reasons in the record to justify such a defermination. First, the al(eged viofation of the sign posting requirement was unsupported by the evidence. There was testimony that the inspector told the manager that there must be a nan-smoking sign posted in the basement. Such a p�stirg may be desirabls, but it is nat a basis for a violation. The law requires '$ Findings of Fact 11. 10 6��3G posting of no smoking signs at outside entrances to public spaces. The basement, or ifs enfrance is an inside entrance to a private, non-public space. The licensing record indicates thaf the ashtray was used by patrons. Again, fhere - is no suc�i a conclusion. Tfie" LEIP conclusio�s wePe a part of tlie information presented to the City Attorney for issuance of fhe eventual Notice of Viofation. The Licensee made numerous efforFs to enforce and promote the non- smoking nature of Minnehaha Lanes, and was at all times in complete compi'sance with the legal requirements for sign posting. A complete lack of required sign postings would indicate a disregard for the requirements of the law. The Administrative Law Judge did not see such disregard by the Licensee.The Cify Attorney appropriately dismissed fhe alleged sign violation at the end of the hearing. Finally, the Administrative Law Judge finds it unusual that adverse action would be taken against a licensee for a"non-criticai" deficienc�, yet no adverse action was taken against the licensee for a"criticai" deficiency. Under the circumstances and for the same reasons stated above regarding a downward departure for adverse action, it would be unreasonab�e to allocate any substantial portion of the costs of this matter to the Licensee. The Administrative Law Judge determined that the violation was only related to the restauran� license because the ofFending ashtray was in the basement food storage area and the smoking offender was a cook. There was no ev��ence th�# thP basPment feod s+.�raye arPa or the ashtray wsre in any related to entertainment, gambling, liquor, or the 40 bowling lanes, ali of which are upstairs in the building 40 While the City introduced sufficient evidence to support the imposition of disciplinary acfion against the Licensee, the City may wish to consider action short of the presumptive fine for a first offense, particularly in light of the reasons stated above, the clear record of the Licensee and its consistent efforts to otherwise promote and enforce the requirements of the Smoking Ordinance. M.K.S. 3s See, Ex. 2-2 & 2-3. 40 Ex. 10. 11