08-1192CouncitFile# �8'����
Green Sheet # �]
RESOLUTION
��
Presented by
L, MINNESOTA
��
1 WHEREAS, Grand�rican Restaurant Company d/b/a The Wild Onion (License ID
2#19990002357) (hereinafter "licensee") located at 788 Grand Avenue in Saint Paul received an Notice of
3 Violation dated May 12, 2008 ("May Notice") and a second Notice of violation dated June 18, 2008 ("June
4 Notice"); and
6 WHEREAS, the May Notice alleged violation on May 12, 2008 of Minnesota Statute § 340A.502
7 which prohibits service of alcoholic beverages to an obviously intoxicated person; and
8
9 WHEREAS, the June Notice alleged violation of license condition number 1 which states that "The
10 Management of the Wild Onion shall provide security in the parking lots Tuesday through Saturday at bar
11 closing to ensure that the patrons leave the premises and the pazking lots without causing a disturbance in
12 the neighborhoods"; and
13
14 WHEREAS, licensee denied both allegations and requested a hearing before an Administrative
15 Law Judge; and
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
WHEREAS, a heazing was held befare an Administrative Law Judge on August 11, 2008, at which
each party was represented by Counsel and presented testimony; and
WHEREAS, the Administrative Law Judge issued his Report on September 8, 2008, in which the
Administrative Law Judge issued Findings of Fact, Conclusions of Law, a Recommendation and a
Memorandum; and
WHEREAS, the Administrative Law Judge found that there was not sufficient proof that licensee
had committed the violation alleged in the May Notice; and
WHEREAS, the Administrative Law Judge found that there was sufficient proof that licensee had
committed the violation alleged in the June Notice; and
WHEREAS, the Administrative Law Judge also found that a$500.00 fine is an appropriate
sanction under the circumstances; and
WHEREAS, the licensee was given notice that a public hearing would be held before the City
Council on October 15, 2008 at which time licensee would have an opportunity to present oral or written
argumenY to the Council; and
WHEREAS, licensee did not file any exceptions to the report of the Administrative Law Judge; and
WHEREAS, at a public hearing on October 15, 2008, the Council of the City of Saint Paul
considered all the evidence contained in the record, the arguments of licensee's attorney at the public
hearing, the Administrative Law Judge's Findings of Fact, Conclusions of Law, and Recommendations;
now, therefore, be it
�8 -/!9�
43 RESOLVED, that the Council of the City of Saint Paul issues this decision based upon
44 consideration of the record of the entire proceedings herein, including the hearing before the
45 Administrative Law Judge, all the documents and exhibits introduced therein, the Findings of Fact,
46 Conclusions of Law and Recommendation as referenced above, and the deliberations of the council in
47 open session of that hearinb, and be it
48
49 FURTHER RESOLVED, that a fine of $500.00 is imposed against all licenses held by Grand
50 American Restaurant Company d/b/a The Wild Onion; and be it
51
52 FURTHER RESOLVED that the $500.00 fine be paid within 30 days of the passage and approval
53 of this resolution; and be it
54
55 FINALLY RESOLVED, that the Findings of Fact, Conclusions of Law, and Recommendation of
56 the Administrative Law Judge in this matter are hereby adopted as the Findings and Conclusions of the
57 City Council in this matter.
58
59 A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and
60 to the license holder.
61
Requested by Deparhnent of:
�� �
By. �`i n � � }.� F'�,.� _ j .
�
v
Approved by the Office of Financial Services
By:
Approvp�.�y City Attorney
BY� �-'Q(�.�. � �I.LV�
Approved by Mayor for Su,bmission to Council
Adoprion Certified by C imcil Secretary gy
By: �
Approve y r Date � l��y�/Q �
Bv�
Adopted by Council: Date ���jJ��j��
�-C�
� Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet
)eparhnentlOffice/Council: Date Initiated:
o�-��y�-
S � _Dept.ofSafety&Inspections �»_ocT-oa Green Sheet NO: 3060947
ConWM Person & Phone:
Rachei Tiemev
266-8710
Must Be on Councii Agenda
OS-NOV-0B /('�ur�,�
Doc. Type: �SOLUTION
E-Document Required: Y
DocumentContact: JulieKraus
ConWct Phone: 2668776
�
Assign
Number
For
Routing
Order
Total # of Sign Pages _ (Clip All Locations for Signature)
Action Requested:
� �'
Memorializing City Council acrion taken October 15, 2008 imposing a$500.00 penalty against all licenses held by the Grand
American Restaurant Company d/b/a The Wild Onion (License ID#19990002357) for the premises located at 788 Grand Avenue in
Saint Paul.
Recommendations: Approve (A) or Reject (R):
Planning Commission
CIB Committee
Civil Service Commission
Personal Service Contracts Must Answer the Following Questions:
i. Has this person/firm ever worked under a contract for this departmenY?
Yes No
2. Has this person/firm 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 all yes answers on sepa2te sheet and attach to green sheet.
Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why):
A public hearing was held on October 15, 2008 to discuss the Administrarive Law Judge's Findiings of Fact, Conclusion of Law and
Recommendarion from the administrafive heazing held on August 11, 2008.
Advantages If Approved:
Memorializarion of Council action taken as a result of the public hearing.
Disadvantages If Approved:
None
Disadvantages If Not Approved:
No memorializarion of Council acrion taken as a result of the public hearing.
Totai Amount af
Trensaction:
Funding Source:
Financiallnformation:
(Euplain)
CostlRevenue Budgeted:
Activily Number:
October 17, 2008 11:10 AM Page 1
OFFICE OF TF� CITY ATTORNEY
John J. Choi, CilyAttomey
08��192-
SAIHi
P°°� CITY OF SAINT PAUL CivilD,"vision
� Christopher8. Coleman, Mayor 400 CityHa!l Tefephone: 651266-8710
15 West Kellogg Blvd. Facsimile: 651 298-5619
AAAA Saint Pau�, Mnnesota 55102
September 12, 2008
NOTICE OF COUNCIL HEARING
David L. Aashmall, Esq.
Felhaber, Larson, Fenlon & Vogt, P.A.
220 South Sixth Street, Suite 2200
Minneapolis, MN 55402-4302
RE: All licenses held by Grand American Restaurant Company d/b/a The Wild Onion for the premises located
at 788 Grand Avenue in Saint Paul
LicenseID #:19990002357
OAH Docket No. 2-6020-19740-3
Deaz Mr. Hashmall:
Please take notice that a public hearing to discuss the report of the Administra6ve Law Judge concerning the
above-mentioned licenses has been scheduled for Wednesday, October 15, 2008, at 5:30 p.m. in the City Council
Chambers, Third Floor, Saint Paul CiTy Hall and Ramsey County Courthouse.
You have the opporhuiity to file exceptions to the report with the City Clerk at any time during normal business
hours. You may also present oral or written arguments to the council at the hearing. No new evidence will be received or
tesfimony taken at this hearing. The Council will base its decision on the record of the proceedings before the
Administrative Law Judge and on the arguments made and exceprions filed, but may depart from the recommendarions of
such Judge as permitted by law in the exercise of its judgment and discretion.
Sincerely,
��� � �
Rachel Tierney
Assistant City Attorney
cc: Diane Nordstrom, Office of Adminisirafive Hearings, P.O. Box 64620, St. Paul, MN 55164-0620
vl�ary Erickson, Council Secretary
Christine Rozek, DeputyDirector ofDSI
Jay Salmen, 404 Mississippi River Boulevard South, St. Paul, NIN 55105
Diane Hilden, Community Organizer, Summit Hill Association, 860 St. Clair Avenue,
St. Paul, MN 55105-3210
AA-ADA-EEO Employer
�g - li9a-
MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS
600 North Robert Street
�;nt Paul, Minnesota 55101
Mw'1' � Address: Voice: (Gil) 361-7900
r.o. sox t�s2o � rn: ��si� �ias�s
St Panl, Mittnesota 55164-0620 Far: (651) 361-7936
September 8, 2008
Shari Moore
St. Paul City Clerk
290 City Hall
15 W Kellogg Blvd
St. Paul, MN 55102
����� �7 ��
�EP U � 20Q8
( �
�- ,
� .. . s
Re: All Licenses Held by Grand American Resfaurant Company d/b/a The
Wild Onion
OAH Docket No. 2-6020-19740-3
Dear Ms. Moore:
Enclosed herewith and served upon you by mail is the Administrative Law
Judge's Findings of Fact, Conclusions and Recommendation in the above-entitled
matter. Also enclosed is the official record, with the exception of the recording of the
hearing. If you would like a copy of that recording, please contact our office in writing or
by telephone at 651-361-7906. Our file in this matter is now closed.
Sincerely,
�. .
1
`(� • �h.a.�a�.�dac
RAYMOND R. KRAUSE
Chief Administrative Law Judge
Telephone:(651)361-7900
RRK:dsc
Enctosure
cc: Rachel Tierney
David L. Hashmall
Richard R. Voelbel
�
�
ag,�l9�
OAH No. 2-6020-19740-3
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE CITY OF ST. PAUL
In the Matter of Adverse Actions FINDINGS OF FACT,
Against All Licenses Held By Grand CONCLUSIONS AND
American Restaurant Company d/b/a RECOMMENDATION
The Wild Onion
This matter came on for hearing before Administrative Law Judge Raymond R.
Krause (ALJ) on August 11, 2008, at the Ramsey County Courthouse, 15 West Kellogg
Boulevard, St. Paul, Minnesota. The hearing was heid pursuant to an Amended Notice
of Violation and Notice of Rescheduled Administrative Hearing dated July 14, 2008.
Rachel Tierney, Assistant City Attorney, appeared on behalf of the City of
St. Paul (the City). David L. Hashmall and Richard R. Voelbel, Felhaber, Larson,
Fenlon & Vogt, P.A., appeared on behalf of Grand American Restaurant Company d/b/a
The Wild Onion (Respondent). Ofificer Michael Lee, Officer Laura Bolduan, Reece
Anderson, Christine Razek, Daniel Martin, Thomas Richardson and Joseph Schaefer
also were present as witnesses. The testimony of Ryan Clark was introduced via
videotaped deposition. The City's Exhibits 1-10 and RespondenYs Exhibits 1-3 were
accepted into evidence. The Office of Administrative Hearings record closed at the end
of the hearing.
STATEMENT OF THE ISSUES
1. Did the City prove by a preponderance of the evidence that the Wild Onion
served alcohol to an obviously intoxicated person on May 7, 2008?
The ALJ finds that the City did not.
2. Did the City prove by a preponderance of the evidence that, on June 11,
2008, the Wild Onion violated the conditions of its license by failing to ensure that
patrons left the premises and its parking lot without causing a disturbance?
The ALJ finds that the City did meet its burden of proof.
Based on the evidence in the hearing record, the Administrative Law Judge
makes the following:
b��l192-
FINDINGS OF FACT
Factual Background
1. Mr. Joseph Schaefer is the owner of Grand American Restaurant
Company d/b/a The Wild Onion, which is at 788 Grand Avenue in the City of St. Paul.
Mr. Schaefer has owned The Wild Onion since May of 1997.'
2. The Wild Onion is licensed by the City of St. Paul to seil liquor until its
2 a.m. closing time?
3. in July of 1999, the Wild Onion received a new liquor license which was
required because of a change of officers of the corporation. Following a City Council
hearing, the liquor ficense was granted with conditions imposed. Most of the conditions
are standard with bars that include sidewalk cafes. The first condition is specific to the
Wild Onion and states:
The management of the Wild Onion shall provide security in the
parking lots Tuesday through Saturday at bar closing to ensure that
the patrons leave the premises and the parking lots without causing
a disturbance in the surrounding neighborhoods. Patrons shall be
advised of the necessity of leaving in an orderly manner and shall
not be permitted io foiter outside the bar or in ti �e �arking lots.
4. Over the years, neighbors living near the Wild Onion have complained to
the City of St. Paul. The majority of compiaints have been about noisy disturbances
around closing time 4
5. Alcohol awareness training is designed to teach people how to recognize
intoxication, what over-service is, how to check peoples' identification and related skills.
The City of St. Paul offers a discount on liquor license fees if a bar sends its employees
to alcohol awareness training offered by a trainer approved by the city.
6. The last time the Wiid Onion got a credit for sending its employees to
alcohol awareness training was in 2005.
' Testimony of Joseph Schaefer {Schaefer test.); City's Exhibit (Ex.) 1-4.
z Ex. 1-3.
3 Testimony of Christine Rozek (Rozek test.); Ex. 1-2 and 2.
4 Rozek test.; Ex. 1-1 and 1-2.
5 Rozek test.
6 /d.
�
��.���a
Serving an Obviously Intoxicated Person
7. On the night of May 6— 7, 2008, Michael Lee, a patrol officer with the St.
Paul police department, was on duty and assigned to watch the Wild Onion and make
tra�c stops as appropriate. Officer Lee was alone in his police car.�
8. Officer Lee's car was parked across Grand Avenue from the Wild Onion
parking lof, facing west so that he had a clear view of the front door of the Wiid Onion,
its parking lot entrance and of most of the vehicles coming from the parking lot.
9. As he watched the Wild Onion, Officer Lee observed three people come
out the front door of the bar together. A male was in the center, with a female on each
side of him. Officer Lee noticed that the man had his arms around the necks of his two
companions, so as to be helped across the street. O�cer Lee thought that the man
might be injured or intoxicated. 9
10. Officer Lee is not certain whether he approached the trio before or after
they got into a car in the parking lot opposite the Wild Onion. Officer Lee spoke with
the man whose name is Reece Anderson, and with Mr. Anderson's companions.
Mr. Anderson's companions explained that they were his friends and that it was 21
birthday. Officer Lee asked Mr. Anderson whether he was all right and said that he
noticed Mr. Anderson had had trouble crossing the street. Mr. Anderson replied that he
had been drinking at three different bars, inciuding itre �"Jiid O�ion w�ere he had shar�d
two pitchers of beer with friends.��
11. Observing that Mr. Anderson's speech was siurred, his eyes red and
watery and that he smelied strongly of alcohol, O�cer Lee asked Mr. Anderson whether
he could administer a preliminary breath test (PBT). Mr. Anderson consented, and the
PBT registered .197, over twice the legal limit for drinking and driving.
12. After confirming that Mr. Anderson was a passenger in a car with a
designated driver who had not been drinking, and warning Mr. Anderson's friends to
watch him carefully because he was very intoxicated, Officer Lee permitted
Mr. Anderson and his friends to leave.'
13. Officer Lee stated on his incident report that he was concerned "that the
bar is serving people that are intoxicated and or to the point of intoxication" and referred
the report for liquor license review.
' Testimony of Officer Michael Lee (Lee test.).
e Lee test.
9 Lee test.
10 Lee test.
'� Lee test., Ex. 3-1 through 3-3.
12 Lee test., Ex. 3-1 through 3-3.
i3 !d.
t4 Ex. 33.
3
D� - //9�-
14. O�cer Lee is a traffic enforcement officer and does not work with the vice
unit of the police department. He is not involved s�ecifically in code enforcement and is
not aware of how that unit conducts its operations. 5
15. Officer Lee conducted no follow-up with the Wild Onion after dismissing
Mr. Anderson. He did not go into the Wild Onion to observe or make inquiries about
whether the Wild Onion serves pitchers of beer, or to ask the stafF in the Wild Onion
about Mr. Anderson's condition at the time he was served; what or where he was
served; or his apparent condition at the time he was served.�
16: Officer Lee does not recall performing any physical tests on Mr. Anderson
such as a step, walk and tum test or a one-leg stand or finger-to-nose test. The only
test he is certain he administered is the PBT test.��
17. Although he acknowiedges that he was intoxicated at the time he left the
bar, Mr. Anderson denies that he was having trouble walking. He put his arms around
the two women who left the bar with him because they were close friends who had been
with him all evening celebrating his 21 birthday.�
18. Mr. Anderson had gone to dinner with his parents, his brother and about 5
to 7 friends early in the evening on May 6, 2008 to celebrate his birthday. About 6-8
people shared two pitchers of beer at that dinner, and Mr. Anderson probably had about
1'/z glasses of beer from those pitchers. Aiter dinner, the group walked a few blocks
back to Mr. Anderson's apartment where they ate cake and he opened birthday
presents. They were at his apartment for about'/2 hour to 45 minutes. Toward the end
of that time, Mr. Anderson drank one beer. At about 10:00 p.m., Mr. Anderson and his
friends took a cab to a bar in Minneapolis where he had one large mixed drink, which
was probably the equivalent of about 1'/Z drinks. Then, Mr. Anderson and his friends
took a cab to the Wild Onion, arriving there shortly after 11:00 p.m.
19. While at the Wild Onion, Mr. Anderson had first ordered and drank a
vodka cranberry sprite. He sat at a high top table near the dance floor and moved back
and forth between the table and some friends celebrating another friend's birthday near
the bar. Mr. Anderson ordered only the vodka cranberry sprite for himself. The other
drinks he had that night at the Wild Onion were brought to him by friends in honor of his
birthday.
20. Mr. Anderson had 3 or 4 more drinks while at the Wild Onion. At least two
of his friends brought shots to him. His last shot was a drink called a"Scooby Snack"
which was sweet and had pineapple juice in it. He does not like pineappie juice and
only drank the shot because his friend brought it to him as a birthday gift, immediately
75 Lee test.
16 Lee test.
'� Lee test.
' Testimony of Reece Anderson (Anderson test.).
' Anderson test.
20 Anderson test.
�
08 -/l9 �-
after drinking the Scooby Snack, Mr. Anderson feit sick and told his friends he had to
leave. They left the bar within five minutes of the time he drank the Scooby Snack. He
knows that he was drunk but was not using his friends as crutches when he put his
arms around them as they feft the bar.
21. Mr. Anderson and his two women friends got into the back seat of his
friend, Luke's, car. Mr. Anderson was in the middle. He had to ask one of his friends to
get out so he could get out of the car when Officer Lee approached the car and asked to
speak to him. Mr. Anderson got out of the car under his own power. He did not need
any assistance z2
22. While he was in the Wild Onion, Mr. Anderson feit happy. He did not fall
down or stumble at all. He interacted with three staff people in the bar: the security
person at the front door when he entered and two additional bar staff — one who gave
him a wrist bracelet signifying he was a birthday customer; a second who served him
the vodka cranberry sprite. As far as he couid tell, none of the Wild Onion staff seemed
concerned about his demeanor.
23. Ryan Clark works at the Wild Onion providing security at the front door. In
addition to six months' experience in that position at the Wild Onion and another twelve
months in other security positions at the Wild Onion, Mr. Clark had experience working
as a bartender for about two years in San Diego. He participated in alcohol awareness
training when he worked as a bartender in California. Mr. Clark's duties include making
certain that everyone who enters the bar is at least 21 years oid; and excluding
obviously intoxicated people from the bar. 24
24. Mr. Clark determines whether people are obviously intoxicated by
engaging them in conversation and closely observing them, including looking them in
the eyes.
25. On the night of May 6 or the early morning of May 7, Mr. Clark turned
away two groups of people. The first group was a group of women who arrived in a
limousine with drinks in hand. After engaging the women in conversation, Mr. Clark
determined that they were too intoxicated to enter, so he asked them to leave, which
they did 26
26. It is very unusual for Mr. Clark's assistance to be required to help an
individual leave the Wild Onion. There was no one on the night of May 6— May 7, 2008
who needed Mr. Ciark's assistance to leave the bar.
2 ' Anderson tesf.
� !d.
Z3 Anderson test.
24 RespondenYs Exhibit 3(Resp. Ex. 3), transcript of testimony of Ryan Clark at pages 5-7 and 20.
Z5 Resp. Ex. 3 at page 7.
zs Resp. Ex. 3 at pages 8-9.
27 /d. at page 10.
5
0� - (/9�-
27. Christine Rozek, the Deputy Director of the Department of Safety and
Inspections for the City of St. Paui, routinely reviews police reports for licensing
implications. Ms. Rozek reviewed the report submitted by Officer Lee conceming his
encounter with Mr. Anderson outside the Wild Onion in the early moming of May 7,
2008 2
28. After reviewing the police report and consulting with the City Attomey,
Ms. Rozek recommended a fine of $500. This fine is based on section 409.26 (b)(4) of
the St. Paul Legislative Code 2
29. On May 13, 2008, the City of St. Paul sent a Notice of Violation to
Respondent, alleging the violation of section 409.26(b)(4) and imposing a penalty of
$500.
30. On May 16, 2008, Respondent requested a hearing in connection with the
alleged violation 31
Failure to Prevent Disturbance
31. At approximately 1:50 a.m. in the early morning of June 11, 2008, St. Paul
police officer Laura Bolduan and her trainee partner, Tim Logan, were summoned
following a report of loud voices and music comin� from the Wild Onion. The
disturbance had been calied in to the pofice at 132 a.m. 2
32. O�cers Bolduan and Logan arrived at the Wild Onion at 1:53 a.m. On
their arrival, they pulled into the Wild Onion parking lot where they were met by security
staff for the bar. Security staff informed Officers Boiduan and Logan that the
disturbance was a result of a man and woman who had been yelling at one anofher in
one car, along with a person in a second car playing music very loudly. Security staff
had succeeded in getting both the arguing couple and the person playing the loud music
to leave before the police arrived.
33. Seeing no active disturbances, Officers Boiduan and Logan proceeded in
their car to the back of the parking lot, turned the car around and exited the lot onto
Grand Avenue. The officers sat in their car and observed the bar and parking lot from
Grand Avenue for approximately 5-7 minutes before driving away and pulling around to
the alley behind the Wild Onion 3a
34. The Wiid Onion parking lot extends in a narrow section from the front of
the buiiding all the way to the back of the building. This narrow leg is approximately
one-half the length of a city block, about 150 feet long. The parking lot then turns 90
28 Rozek test.
Z9 Rozek test.
3o Ex. 4-1 and 4-2.
31 Ex. 5.
32 Testimony of O�cer Laura Bolduan (Bolduan test.) and Resp. Ex. 2.
33 Bofduan test.; Testimony of Dan Martin (Martin test.); Ex. 6-2.
34 Bolduan test.
0
b�i � l lq 2-.
degrees and continues behind the building. This back section of the parking lot is
approximately 120 feet wide. On June 11, 2008, a low wrought iron fence separated
the back section of the parking lot from the alley.
35. Standing in the aliey and looking into the parking lot, O�cer Bolduan had
a good view of the back of the parking lot and of most of the narrow leg leading to the
front driveway, although she could not see ail the way to the front of the parking lot.
36. From about 2:00 a.m. until about 2:12 a.m., Officer Bolduan observed
patrons leaving the Wild Onion, congregating in the parking lot, some of them talking
loudly, some breaking bottles. Officer Boiduan did not see anyone from the Wild Onion
trying to quiet the patrons in the parking lot. She did not observe any Wild Onion staff
people in the parking lot at all. The noise level reached a point where Officer Boiduan
determined that it would disturb neighbors trying to sleep. After observing for about five
minutes, Officer Bolduan instructed the noisy patrons it was time to turn down the music
and leave. Her efforts were successful and the parking lot was cleared without further
incident.
37. O�cer Bolduan felt that she was able to handle the disturbance in the
parking lot from her vantage point in the alley. She did not believe that the level of
disturbance required her to return to the parking lot itself.
38. Once the parking lot cleared, Oificers Bolduan and Logan ieft. They
cleared the cali at 2:14 a.m. Typically, Officer Bolduan clears a call about two minutes
after she leaves the scene to which she was summoned. Based on her usual practice,
Officer Boiduan estimated that she probably left the alley behind the Wild Onion at
about 2:12 a.m.
39. Officers Bolduan and Logan did not return to the Wild Onion after they left
the alley.
40. After returning to the Western District police station, O�cers Boiduan and
Logan wrote a police report about the events they had witnessed at the Wild Onion 4
41. The Wild Onion has a set procedure in place for handling closing time. At
about 1:45 a.m., the DJ announces "last call." The songs played after that point are
slower and quieter than the music more generally played at the bar in the evenings.
With each of the next two songs, people are reminded of "last cali" for drinks. At the
time of third song, the DJ announces °last song." At 2:00 a.m., the lights are turned up
and stafF request that all drinks be finished, The DJ reminds patrons to be respectFul of
neighbors; and that cabs are available outside the bar. The security guard at the front
35 Bolduan test.
3s Bolduan test.
37 Bolduan test.
38 Bolduan test.
39 Bolduan test.; Resp. Ex. 2.
' Bolduan test.
"� Ex. 6-1 through 63.
r�
08�1/9�-
door goes outside and remains outside the front door. As people leave he tells them to
move to their cars. He walks past the patio and to the parking lot driveway. At
approximately the same time, the security person at the back door locks the door so
that people cannot re-enter the bar that way. He then stays near the back door, helping
patrons out, directing them to use the front door.
42. Once the patrons are all ushered out the front door and the bar is empty,
the remaining staff all leave the bar and go outside to assist in dispersing people from
the area around the bar. Once the area of the bar is clear, the staff walk in groups
around the block, picking up garbage and encouraging any loiterers to move along
43. Ms. Rozek reviewed the report submitted by Officers Bolduan and Logan
concerning the early morning of June 11, 2008, events at the Wild Onion �`'
44. Ms. Rozek was familiar with neighborhood concerns about noise caused
by Wild Onion patrons around ciosing time. She met with neighbors and community
organizations on several occasions, took a number of complaints over the years, and
participated in multiple meetings with Wild Onion management to discuss these
concerns 45
45. Wild Onion management has been receptive to Ms. Rozek's requests to
meet, and had taken steps to reduce the noise problem, including increasing security,
and developing an elabcrate procedure �ar closing that involved staff in supervising
departing patrons when necessary
46. Nonetheless, noise and inappropriate behavior problems at closing time
continued to disturb nei�hbors who have brought their concerns to the St. Paul police as
recentiy as June 2008 4
47. After reviewing the police report and consulting with the City Attorney,
Ms. Rozek recommended a fine of $1,000. This fine is based on the alleged violation of
the conditional license being a second violation pursuant to the penalty matrix contained
in St. Paul Legislative Code Section 310.05(m)(1) 4
48. On June 18, 2008, the City of St. Paul sent Respondent a letter informing
Respondent of the alleged June 11 violation of its license condition and of the proposed
fine.
42 Martin test.
43 Martin test.
" Rozek test.
" Rozek test.
46 Rozek test.
47 Rozek fest.; testimony of Thomas Richardson.
48 Rozek test.
49 Ex. 7-1 through 7-3.
�
Ob-Il9a--
49. On June 26, 2008, Respondent, through its attomey, requested a hearing
on the a{leged June 11 vio{ation and requested that the hearings on the May 7 and
June 11 violations be consolidated.
50. In an Amended Notice of Violation and Notice of Administrative Hearing
dated June 26, 2008, the Cit� notified Respondent of the consolidated hearing to
address both alleged violations. '
51. In an Amended Notice of Violation and Notice of Rescheduled
Administrative Hearing dated July 14, 20d8, the City notified Respondent of the
rescheduled consalidated hearing to be held on August 11, 2008.
Based on these Findings of Fact, the Administrative Law Judge makes the
following:
CONCLUSIONS
1. This matter is properly before the City and the ALJ pursuant to St. Paul
Legisiative Code §§ 310.05, 310.06 and 324.11.
2. The City complied with all requirements of regulation and gave proper and
timely notice to the Licensee.
3. Minn. Stat. § 340A.502 prohibits any person from selling, giving, furnishing
or in any way procuring "fior another alcoholic beverages for the use of an obviousiy
intoxicated person."
4. Pursuant to section 409.26(b)(4) of the St. Paul Legislative Code it is a
violation of a liquor license to sell alcoholic beverages to an intoxicated person.
5. Pursuant to section 310.05(m)(1) of the St. Paul Legislative Code, the City
will impose a$500.00 for the first violation of a condition placed on a license and
$1,000.00 forthe second violation of a condition placed on a license.
6. The City has not proven by a preponderance of the evidence that the
Licensee or any employee of the Licensee sold, gave, furnished or in any way procured
one or more alcoholic beverages on the night of May 6-7, 2008 in violation of Minn. Stat.
section 340A.502 and St. Paul Legislative Code section 409.26(b)(4).
7. The City has proven by a preponderance of the evidence that the
Licensee failed to comply with Condition #1 of its liquor license requiring it to "provide
securiry in the parking lots ... at bar closing to ensure that the patrons leave the
premises and the parking lots without causing a disturbance in the surrounding
neighborhoods."
so Ex, 8.
51 Ex. 9-1 through 9-3.
Sz Ex. 10-1 through 10-4.
E%]
a�-��y�--
Based upon these Conclusions, and for the reasons explained in the
accompanying Memorandum, the Administrative Law Judge makes the following:
RECOMMENDATION
Based upon these Conclusions, the Administrative Law Judge respecifully
recommends that: the St. Paul City Council:
1) DISMISS the allegation that the Licensee sold aicohol to an obviously
intoxicated person; and
2) AFFIRM the fine and/or other adverse action against the license based on
the Licensee's failure to comply with Condition #1 of its liquor license.
Dated: September 4, 2008 �-
�---=-__
RAYMOND R. KRAUSE
Administrative Law Judge
Reparted: Cigitally Recorded
NOTICE
This report is a recommendation, not a final decision. The St. 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. Pursuant to
Section 310.05 of the St. 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 appiication of the law or
the interpretation of the facts and an opportunity to present argument relating to any
recommended adverse actiorr. The Licensee and any interested parties should contact
Shari Moore, Saint Paul City Clerk, 290 City Hall, 15 West Keliogg Boulevard, St. Paui,
MN 55102, to ascertain the procedure for presenting argument.
MEMORANDUM
Serving An Obviously Intoxicated Person
While the City proved by a preponderance of the evidence that Mr. Anderson
was intoxicated, and possibly even obviously intoxicated, by the time Officer Lee
10
��/��O
observed him that is not the focus of the inquiry in this matter. The questian is — was
Mr. Anderson obviously intoxicated before he was served any or all of his drinks in the
Wi{d Onion? The C'ity ofEered no evidence at all about Mr. Anderson's condition before
he was served. The Licensee, on the other hand, offered testimony that its staff did not
perceive that Mr. Anderson was obviously intoxicated and that Mr. Anderson himself did
not believe he was obviously intoxicated while he was in the bar. Ryan Clark, the front
door security person, testified that he remembers tuming away obviously intoxicated
people that night but that he does not recall Mr. Anderson. Mr. Anderson testified that
he was able to move between his table and the bar comfortably, with no stumbling or
missteps; and that, until his very last drink, he felt fine. Furthermore, Mr. Anderson
testified that, after his first drink at the Wild Onion, he did not order another drink but
that friends were bringing drinks to him in celebration of his birthday.
The City relies entirely on Officer Lee's impressions, which were formed after
Mr. Anderson had the drink that finally made him feel unwell. Even those impressions
were vague. Officer Lee did not recall whether Mr. Anderson had gotten into a car or
not when Officer Lee asked to speak with him. O�cer Lee also did not perform any
tests of Mr. Anderson's physical abilities. He simply administered a breathalyzer test,
which indisputably showed that Mr. Anderson was intoxicated.
The Minnesota Supreme Court has drawn a clear line between what is required
to show that someone is intoxicated and what is required to show that someone is
obviously intoxicated. The Court stated that "[h]oiding ... that a given blood-alcohol
content may establish as a matter of law that a person is obviously intoxicated would
render meaningless the word `obviously' ... and would significantly increase the duty
imposed on those furnishing intoxica#ing liquor." In this case, the City's offer of only
the breathalyzer results after-the-fact and its failure to offer any evidence that Licensee
served Mr. Anderson at a time when he was obviously intoxicated, falls far short of the
proof required to show a license violation.
Violation of License Condition
The Licensee offered abundant testimony about its practices and procedures for
security before, during and after closing time at the Wild Onion. While it is heartening to
learn that the Wild Onion is attempting to keep control of the noise levels around closing
time, the critical question in this proceeding is whether there was a disturbance in the
Wild Onion parking lot between 2:00 and 2:12 a.m. in the morning of June 11 and, if so,
whether the Wild Onion staff managed that disturbance.
Officer Bolduan testified credibly that she was concerned about the noise levels
in the alley as she stood listening between 2:00 a.m. and 2:12 a.m. on June 11, and that
no one from the Wild Onion took steps to quell the noise. While the Licensee offered
similarly credible testimony that there was staff in front of the bar at that point in time,
there was no first-hand testimony about someone in the rear of the bar where most of
the cars are during that time. Mr. Martin and Mr. Clark testified that the person at the
s3 Seeleyv. Sobczak, 281 N.W2d 368, 371 (Minn. 1979).
11
b$ - l �9 a--
back door hovers both inside the bar and out after the lights are tumed on at 2:00 a.m.
The person who was present in the back of the bar that night did not testify.
Furthermore, even if fhe bar staff followed their routine perfectly that night and
fanned out into the front and back of the bar once ali of the patrons were gone from
inside the bar, the undisputed tesfimony offered by the Licensee was that sometimes
the final push fo get people outside does not end until 2:30 a.m. It is entirely possibie
that the back door person was inside the bar at 2:00 a.m. on June 11 and that the rest
of the staff, except for Ryan Clark, were inside the back until as late as 230, working on
getting patrons moved out of the bar. Ryan Clark stayed primarily in front of the bar,
focusing on patrons exiting through the front door, and might well have missed any
commotion in the rear of the parking lot.
It is also quite possible that security staff were in the back !at at the time O�cer
Bolduan witnessed the disturbance as Respondent avers. Officer Bolduan admittedly
does not recognize every Wiid Onion employee by sight. However, even if true, having
security in the lot at closing is only part of Condition #1. If there were any security
personnel in the iot, they did not make their presence known and did not prevent or
queil the disturbance. The point of the license condition is not just to have security in
the lot for its own sake, but to prevent or quickly end disturbance of the neighborhood.
This was not done, at least until O�cer Bolduan acted.
Officer Bolduan's testimony is not inconsistent with the testimony offered by the
Licensee. There is nothing to dispute her testimony. Therefore, the City met its burden,
showing by a preponderance of the evidence, that a disturbance occurred in the rear of
the Wild Onion sometime between 2:00 a.m. and 2:14 a.m. in the morning of June 11,
2008, and that the Licensee failed to provide its own staff to quiet the disturbance,
leaving the St. Paul police to handle the situation. This is a violation of Condition #1 of
Licensee's liquor license.
Respondent make two further arguments. First, is that there is no statutory
definition of disturbance. Therefore, it is argued that whatever happened between 1:53
and 2:12 a.m. that day m+ght not have been a disturbance at all. Merriam Webster New
Collegiate Dictionary defines "disturb" as "to destroy the tranquility of." Clearly, Officer
Bolduan who is an experienced police o�cer felt that whatever commotion was
happening was enough to destroy the tranquility of the eariy morning hours of June 11.
The second argument put forward is that RespondenYs definition of "closing time"
is the precise time at which all patrons have left the bar and the doors are locked.
Apparently, from the testimony, this point is usually reached sometime after 2:15 a.m.
Since Officer Bolduan had ieft by 2:12 a.m., she could not have known whether there
were any security in the lot or a disturbance at "closing time."
The ALJ does not accept this narrow definition of "closing time." For purposes of
the license condition, closing time is a process rather than a precise moment in time.
12
0�-l19a
Security are required to be actively preventing disturbances from fhe time they begin the
closing process until ali fhe patrons are dispersed.
Conclusion
Because the City failed to prove by a preponderance of the evidence that the
Licensee or its employees served Mr. Anderson at a time when he was obviously
intoxicated on the night of May 5-6, 2008, tfie Administrative Law Judge recommends
that the City dismiss this alleged violation.
Because the City did show by a preponderance of the evidence that the Licensee
failed to monitor its parking lot and provide adequate coverage to quell a disturbance at
2:00 a.m. on the morning of June 11, 2008, the Administrative Law Judge recommends
that the City a�rm this violation and impose a fine or other appropriate adverse action.
R. R. K.
13
STATE OF MIlV�VESOTA)
D�-11
} ss. AFFIDAVIT OF SERVTCE BY iJ.S. MAIL
COUi�iTY OP RAMSEY )
Julie Kraus, being first duly swom, deposes and says that on the 12` day of September,
si�e served the attached 'sVQT`ICE OF COUNCIL HEARING by placing a mze and
correct copy thereof in an envelope addressed as follows:
David L. Hashmall, Esq.
Felhaber, Larson, Fenlon & Voe , P.A.
220 Sot�th Sixth Street, Suite 2200
Minneapolis, MN 55402-4302
Diane Nordstrom
Office of Administrarive Hearings
Y.O. Box 64620
St. Paul, M1V 55164
Jay Salmen
�04 Mississippi River Boulevard South
St. Paul, MN 55105
Diane Hilden, Community Organizer
Summit Hi11 .�ssociation
860 St. Clair Avenue,
St. Paul, MN 55105-3210
(which is the last known address of said person} depositing the same, with postage prepaid, in the
United States mail at St. Paul, Minnesota.
�N�
� Julie Kraus
5ubscribed and sworn to before me
this 12�' day of September, 2008
�` ��ip_c�
Notary Public
:« +_ .i.. ! :.: .� 1
,,,� .� : .
:� , .
1� '+.� . , . %
� x �