Loading...
08-1244Council File # 6$ — �� �y Green Sheet #3061255 CITY Presented by RESOLUTION MINNESOTA �� 1 WHEREAS, adverse action was taken against the Restaurant (4) 51-150 Seats license held by Kim 2 Huoy Chor Asian Cuisine dibia Kim Huoy Chor Asian Cuisine (License ID #20070001605) for the 3 premises located at 1644 University Avenue in Saint Paul by Notice of Violafion dated October 3, 2008, 4 alleging licensee did not pay the $825.00 penalty and correct two (2) Crifical-Major and two (2) Critical- 5 Minor Environmentai Health violations documented during an inspection on July 31, 2008; in violation of 6 Minnesota Administrative Rules part 4626.0395; 4626.0105 and 4626.1565; and WHEREAS, licensee did not respond to the Notice of Violation to contest the allegation or pay the $825.00 matrix penalty and conect the violations; and 10 11 12 13 14 15 16 17 18 19 WHEREAS, the Notice of Violation stated that if the licensee failed to contest the allegation or pay the $825.00 matrix penalty and correct the violation by October 13, 2008, that the matter would be placed on the consent agenda to impose the recommended penalty; now, therefore, be it RESOLVED, that the Restaurant (4) 51-150 Seats license held by Kim Huoy Chor Asian Cuisine d/b/a Kim Huoy Chor Asian Cuisine is hereby suspended and the licensee is ordered to pay a matrix penalty of $825.00 for failure to correct two (2) Critical-Major and two (2) Critical-Minor Environmental Health violations documented during an inspection on July 31, 2008. Payment of such penalty shall be made within thirty days of the date of the adoption of this resolution. Requested by Depar[ment of: � By: � Adoption Certified by Co il Secretary BY� // //li1/J�l"�/�il�Si� Appro��;�b� ay . Date (/�Zl �D� —� BY� >C/ Form Q�ppi ved by City Attomey BY� .�a T,, Form A ro b Mayor f u ission Council By: Adopted by Council: Date ���/ 3% �� � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet ����'�`� )epartmenHOffice/Council: Dafelnitiated: I GCEen ShEG NO 3061255 S� _ Dept. of Safety 8 inspections Zct-pCT-0B Confact Person & Phone: Rachel Tiemey 266-8710 Must Be on Cour 12-NOV-08 7� RESOLUTION E-DxutnentRequired: Y Document Contact: Julie Kraus Contact Phone: 26&8776 Order Total # of Signature Pages _(Clip All Locations for Signature) � � Approval of the attached resolurion to take adverse ac6on against the Restaurant (4) 51-150 seats Iicense held by Kim Huoy Chor Asian Ctixisine d(b(a Kim Huoy Chor Asian G�isine (License ID#2007Q�Q1605) for the premises located at 1664 University Avenue West in St. Paul. Recommendations: Approve (A) or Reject (R): Planning Commission CIB Commitlee Civit Service Commission Personal Service Contrects Must Answer the Following G3uestions: 7. Has this person�rm ever worked under a contract for this department? Yes No 2. Has this person7firm ever been a ciiy employee? Yes No 3. Does this person/firm possess a skill not normally possessed by any current ciry employee? Yes No Expiain all yes answers on separate sheet antl aHach to green sheet. Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why): Licensee failed to pay the $825.00 penalty or conect the two (Z) Cxitical -Major and two (2) Critical - Minor Environmental Health violations documented during an inspecrion on 3uly 31, 2008. After norification, licensee did not respond to the Notice of Violaqon. Advantages If Approved: Impose $825.00 penalty and suspension of Restaurant (4) 51-150 seats license. DisadvanWges If Approved: None DisativanWges If Not Approved: Total Amount of Trensactian: Funding Source: Fnancial Information: (E�cplain) October 28, 2008 2:08 PM � by (Date): , Number CosURevenue Budgetetl: Activity Numbee Page 1 � D8-12-��1 OFFICE OF THE CITY ATTORNEY John J. Choi, CityABOmey SAINT PAUL � AAAA ClTY OF SAINT PAUL Chnstopher8. Coleman, Mayor October 3, 2008 Owner/Manager Kim Huoy Chor Asian Cuisine 1664 University Avenue West St. Paul, MN 55104 RE: Restaurant (4) S1-150 seats license held by Kim Huoy Chor Asian Cuisine d/b/a Kim Huoy Chor Asian Cuisine for the premises located at 1664 University Avenue West in Saint Paul LicenseID #20070001605 Deaz SirlMadam: The Department of Safety and Inspections (DSI) will recommend adverse action against the Restaurant (4) 51-I SO seats license held by Kim Huoy Chor Asian Cuisine d/b/a Kim Huoy Chor Asian Cuisine for the premises Iocated at 1664 University Avenue West in Saint Paul. The basis for the recommendation is as follows: On May 28, 2005, the Deparhnent of Safety and Inspections (DSn - Environmental Healt6 Division conducted an inspection of your establishment and cited you for five (5) CRITICAI.-Major violations two of which included: 1) cold food not maintained at 41 degrees Fahrenheit or less or 140 degrees Fahrenheit or more and 2) the mechanical refrigeration equipment is holding potenrially hazardous food at temperatures over 41 degrees Fahrenheit and seven (7) CRITICAL — Minor violafions two of which included: 1) food service employees are not following good Lygienic practices and 2) there is evidence of insects, rodents or other pests on the premises. On May 29, 2008, DSI sent you a Notice of New Critical Violations noting these violations and stating they needed to be corrected by June 27, 2008. You were then informed that a re-inspection would take ptace on or after June 27, 2Q08. On 3uly 8, 2008, the Environmental Health Division conducted a re-inspection and cited you for one CRI1'ICAL —Major violatian (cold foad not maintained at 41 degrees Fahrenheit or less) and one CRTPICAL — Minor violafion (there is evideoce of insects, rodents or other pests on the premises) that had not been corrected by June 27, 20U8. CiviJ Division 400 City Hall >5 West Kellogg Blvd. Saint Paul, Minnesota 55102 NOTICE OF VIOi,ATTON Te%phone � 657 2658710 Facsimile: 659 298-5679 Affirmative Action Equal Opportunity Employer Kim Huoy Chor Asian Cuisin,. October 3, 2008 �pj- ( �y'� Page 2 You were then sent a 2 Notice of Critical — Minor Violations noting that minor viotation and stating it still needed to be corrected. You were then iaformed that another r�inspection would take place on or after July 23, 2008. On July 31, 2008, Environmenta] Health Division conducted anotherre-inspecfion and again cited you for two (2) CRITICAI,-Major violaUons: 1) cold food not maintained at 41 degrees Fahrenheit or less (west rail has cooked sweet & sour pork at 98.5 degrees and east rail has cooked chicken at46 degrees) and 2} the mechanical refrigeration equipment is holding potenfial3y Lazardous food at temperatures over 41 degrees Fahrenheit (the prep rails in both prep coolers are holding food above 41 degrees) and rivo (2) CRITICAL — Minor violations: 1) fuod service empioyees are not foIiowing good hygienic pracHces (employees had open beverages stored in severa! locations throughout the kitchen and prep area) and 2) tLere is evidence of insects, rodents or otLer pests on the premises (rat droppings were found in iwo locations in the basement). These are all violafions of Minnesota Administrative Rules oart 4626 0395 which states: "maintain all cold potentially hazardous foods at 41 degrees Fahrenheit or below under mechanical refrigeration, ro prevent bactetial growth andlor toxin production. ", Minnesota Administrative Rules uart 4626 0395 which states: "provide adequate, approved mechanical refrigeration to maintain cold potentially hazardous joods at 4I degrees Fahrenheit except during preparation, cooking or cooling.'; Minnesota AdministraHve Rules uaK 4626 0105 which states: "employees must not consume jood or beverages in food preparation or utensil washing areas. Employees may use a closed beverage contained providing it is handled to prevent contamination of the empZoyee's hands, the container, food, clean eguipment, utensils linens and single-service or single-use articles.'; Minnesota Administrative Rules nart 4b26.1565 which states: "erterminaterates and remove all rat droppings from the food faciZfty. " As per Saint Paul I.egislative Code §310.05 (m) (8), the licensing office will recommend a matrix penalry of $825.00 for the four violations and suspension of your Restaurant (4) 51-I50 seats license until all the violations have been corrected. At this time, you have three options on how to proceed: You will need to conect all the violations and pay the recommended $825.00 matrix penalty. If this is your choice, please send the payment to the Department of Safety and Inspections (DSI) at 8 Fourth Street East, Suite 200, St. Paul, Minnesota 55101-1002 no later than Monday, October 13, 2008. Payment should be directed to the attention of Christine Rozek. A self-addressed envelope is enclosed for your convenience. Payment of the penalty and conection of all the violation will be considered a waiver of the hearing to which you aze entitled. You.will also need to contact Kim Carlton. Environmental Health Suecialist at (651) 266-9090 to schedule an insoection to verifv that all the violations have been corrected Tf the violations have not been corrected the matter witl then be nlaced on the Council's Consent Aeenda for susoension of vour Restaurant (4151-150 seats license Affirmative Action Equal Opportunity EmploYer Kim Huoy Chor Asian Cuis�,.,, October 3, 2008 Page 3 08-1 �4� 2. If you wish to admit the facts but contest the penalty, you may have a public hearing before the Saint Paul CiTy Council, you wiil need to send me a ietter with a statement admitting the facts and requesting a public hearing. We will need to receive your letter by Monday, Octo6er 13, 200$. The matter will then be scheduled before the Ciry Council for a public hearing to determine whether to impose the $825.00 matrix penalty and ]icense suspension. You will have an opportunity to appear before the Counci] and make a statement on your own behalf. 3. If you dispute the above facts, you can request a hearing before an Administrative Law Judge. At that hearing both you and the City will be able to appeaz and present wifiesses, evidence and cross- examine each other's witnesses. The St. Paal City Council will ultimately decide the case. If this is your choice, please let me know later than Monday, October 13, 2008, and I will talce the necessary steps to schedule the administrative hearing. If you have not contacted me by that date, I wil! assume that you are not contesting the imposition of the $825.00 matrix penalty and suspension of your Restaurant (4) 51-150 seats license. In that case, the matter will be placed on the Council's Coasent Agenda for approval of the recommended penalty. If you have questions about these options, please feel free to contact me at 26b-8710. Sincerely, � �_ 1 �,� Rachel Tierney Assistant City Attomey cc: Christine Rozek, Deputy Director of DSI Bill Gunther, Environmental Health Nlanager Vuthy Taing, 7109 Minnetonka Boulevard, St. Louis Park, MN 55426 Theresa Heiland, Exec. Director, Union Pazk Council, 1570 Concordia Avenue, Ste. LL100, St. Paul, MI�3 55104 Affirmarive Action Equal Onnortunitv Emulover STATE OF MINNESOT ^ ` , ss. COUNTY OF RAMSEY ) b��� a�� Julie Kraus, being first duly swom, deposes and says that on the 3` day of October, she served the attached NOTICE OF VIOLATION by placing a true and correct copy thereof in an envelope addressed as follows: Owner/Manager Kim Huoy Chor Asian Cuisine 1664 Universlty Avenue West St. Paul, MN 55104 Vuthy Taing 7109 Minnetonka Boulevard St. Louis Park, MN 55426 Theresa Heiland, Exec. Director Union Pazk Council 1570 Concordia Avenue, Ste. LL1Q0 St. Paui, MN 55104 (which is the last known address of said person) depositing the same, with postage prepaid, in the United States mail at St. Pau1, Minnesota. 1 � � � Julie Kraus Subscribed and swom to before me this 3` day of October, 2008 No� �. �- ublic � AFFIAAVIT OF SE._ JICE BY U.S. MAIL RiTA M. 803SARO lpTARY PUBLIC • MN�`�SOTA MY COMMSSION pCPIRES JAN. 37 . 2 O 1 0 o� �i a�u��{ CITY OF SAINT PAUL iNTERDEPARTMENTALMEMORANDUM DATE: . 08/15/08 TO: Christine Rozek FROM: Bi(i Gunther �1�� RE: Kim Huoy Ghor Asian Cuisine 1664 University Ave W Inspection Number: 08 111859 Inspection Date: 07/31/08 REVISED REQUEST FOR LICENSE ADVERSE ACTION The Environmental Health Division conducted a re-inspection of the facility at 1664 University Ave W on 07/31f�8 and is recommending license adverse action (Section 331A.i 1 of the Saint Pauf Legisiative Code). The food code violations iisted below were noted as being uncorrected during re-inspections of the establishment. Inspection reports are attached. The following penalties are being recommended: Violation 1 Severity: CRITICAL (Minor) Comply By: 06/27l08 Notice # 3 RECOMMENDED PENALTY: $i25 Food service employees are not foiiowing good hygienic practices. EMPLOYEES HAD OPEN SEVERAGES STORED IN SEVERAL LOCATIONS THROUGHOUT THE KITCHEN & PREP AREA. Employees must not consume food or beverages in food preparation or utensil washing areas. Employees may use a closed beverage container providing it is handfed to prevent contamination of the employee's hands, the container, food, clean equipment, utensils, linens and singie-service or single-use articles. (MN 4626.Oi 05) Violation 2 Severity: CRITIGAL (Minor) Comply By: 06(27(08 Notice # 3 RECOMMENDED PENALTY: $200 Page 1 of 3 c�-� a�u There is evidence of insects, rodents, or other pests on the premises. RAT dROPPINGS WERE FOUND IN TWO �OCATIONS IN THE BASEMENT. (DROPPINGS WERE SWEPT UP DURING THE 7131/08 iNSPECTfON) Exterminate rats and remove all rat droppings from the food facility. (MN 4826.1565) Violation 3 Severity: CRITICAL (Major) Comply By: 06/27/08 Noiice # 3 RECQMMENDED PENALTY: $250 Cold food not maintained at 41 degrees Fahrenheit or less or 140 degrees or more. 1. FRIED CHICKEN W1NGS iN WEST PREP RAIL 86F 2. COOKED SLICED CHICKEN, PORK, VEGETABLES, SHRIMP AT 50F IN EAST PREP RAIL. 3. POTSTICKERS 49F IN EAST PREP COaLER 4. FRIED TOFU 80F (ROOM TEMPERATURE) ON TOP OF EAST PREP RAIL 5. EGG ROLLS 85F IN WEST PREP COOLER Maintain a1f cold potentially hazardous foods at 4i degrees Fahrenheit or below under mechanicaf refrigeration, to prevent bacferial growth andlor toxin production. (MN 4626.0395) Violation 4 Severity: CRITICAL (Ma}or) Comply By: 06l27l08 Notice # 3 RECOMMENDED PENALTY: $250 The mechanical refrigeration equipment is hoiding potentiaily hazardous food at temperatures over 41 degrees Fahrenheit. THE PREP COOLER ON THE WES7 SIDE OF THE KITCHEN HAS AN AMBIENT TEMPERATURE OF 49F; FOOD INSIDE OF THE COOLER RANGED FROM 49'F TO 86�F, Provide adequate, approved mechanical refrigeration to maintain cold potentialiy hazardous foods at 41 degrees Fahrenheit except during preparation, cooking or cooling. (MN 4626.0395) The penalties listed above were based on the food code penalty guideline and the following mitigating or aggravating factors: Potential for harm or imminent threat to pubfic heaith: Emp{oyees who have an open beverage cup in the work area can contaminate their hands while they are working and thus contaminate the fiood they are handling. The presence of rat droppings indicates rodent activity which can contaminate food and work surfaces. The droppings were in the basement and not in the kitchen which lessens 2 of 3 the potential but it is stili there. �, �a� � Extent of deviation from statutory or regulatory requirements: The presence of rats droppings is more serious than mouse droppings since rats can do more damage than mice and they should be easier to controf. Degree of wilifulness or negligence: The use of an open cup be the empfoyee is a management issue. It is the managers responsibility to instruct and monitor the employees. History of noncompliance or compliance; This establishment has a large number of violations although there does appear to be some attempt at correction. Demonstration of good faith efforts to correct a violation: it is difficult to determine the attempt at correction of the violations that are responsible for the fines but there does appear to be some movement to compiiance on other violations. cc: Bill Gunther Bob Kessler 3 of 3 4626.0395 Minnesota Rule Page 1 of 1 Minnesota Administrative Rules �� { ��� 4626.�395 3-501.16 POTENTIALLY HAZARDOUS FOOD; HOT AND COLD HOLDII�G.* Except during preparation, cooking, or cooling, or when time is used as the public health control as specified in part 4626.0410, potentially hazardous food shall be maintained: A. at b0 degrees C(140 degrees F) or above, except that roasts cooked to a temperature and for a tune specified in part 4626.0340, item B, may be heid at a temperature of 54 degrees C(134 degrees F); or B. at 5 degrees C(41 degrees F) or below under mechanical refrigerafion, except as specified in part 4626.0405, item B. Statutory Authority: MS s 31101; 31.11; 144.Q5; 144.Q8; 144.12; 157.011 Histary: 23 SR 519 Posted: October 11, 2007 https:J/webrhl2.revisor.leg.state.mn.ushules/?id=4626.0395 10l2(2008 4626.0105 Minnesota Rule Minnesota Administrative Rules 4626.0105 2-401.11 EATING, DRINKING, OR USING TOBACCO.k Page 1 of 1 a8-f ���1 A. Except as specified 'an item B, an employee shall eat, driiilc, or use any form of tobacco only in designated azeas where the contamination of exposed food; clean equipment, utensils, and linens; unwrapped single-service and single-use articles; ar other items needing protection cannot resuit. B. A food employee may drink from a closed beverage container if the container is handled to prevent contamination of: (1) the employee's hands; (2) the container; and (3) exposed food; clean equipment, utensils, and linens; and unwrapped single-service and single-use articles. Statutory Authority: MSs 31.101; 31.11; 144.05; 144.08; 144.12; 157.011 History: 23 SR 519 Posted: October 11, 2007 https://webrhl2.revisor.le�.state.mn.us/rules!?id=4626.0105 10/2/2008 4626.1565 Mlnnesota Rule Page 1 of i Minnesota Administrative Rules �� t a �� 46261565 6-501.111 CONTROLLING PEST5.x The presence of insects, rodents, and other pests shall be controlled to minirnize their presence on the premises by: A. rourinely inspecting incoming shipments of food and supplies; $. routinely inspecting the premises for evidence of pests;N C. if pests are found, using trapping devices or other means of pest control specified in parts 46261610, 4626.165Q, and 46261655; and D. eliminafing harbarage conditions. Statutory Authority: MSs 31.101; 31.11; 144.05; 144.08; 144.12; 157.011 History: 23 SR 519 Posted: October 11, 2407 https:!/webrhl2.revisor.leg.state.mn.uslrulesJ?id=4626.1565 1012J2008 Sec. 310.05. Hearing procedures. �� � ���/ (aj Adverse action; notice and hearing requirements. In any case where the council may or intends to consider any adverse action, including the revocation or suspension of a license, the imposition of conditions upon a license, or the deniai of an appiication for the grant, issuance or renewal of a license, or the disapprovai of a license issued by the State of Minnesota, the applicant or Ilcensee shall be given notice and an opportunity to be heard as provided herein. The council may consider such adverse actions when recommended by the inspector, by the director, 6y the director of a�y executive department established pursuant to Chapter 9 of the Charter, by the city attorney or on its own initiative. (b) Notice. in each such case where adverse action is or wiil be considered by the council, the applicant or licensee shail have been notified in writing that adverse action may be taken against the license or application, and that he or she is entitled to a hearing before action is taken by the council. The notice shall be served or mailed a reasonable time before the hearing date, and shail state the place, date and time of the hearing. The notice shall state the issues involved or grounds upon which the adverse action may be sought or based. The council may request that such written notice be prepared and served or mailed by the inspector or by the city attorney. (c) Hearing. Where there is no dispute as to the facts underfying the violation or as to the facts establishing mitigating or aggravating circumstances, the hearing shall be held before the council. Otherwise the hearing shall be conducted before a hearing examiner appointed by the council or retained by contract with the city for that purpose. The applicant or the licensee shall be provided an opportunity to present evidence and argument as well as meet adverse testimony or evidence by reasonable cross-examination and rebuttal evidence. The hearing examiner may in its discretion permit other interested persons the opportunity to present testimony or evidence or otherwise participate in such hearing. (c-1) Procedure; hearing examine�. The hearing examiner shall hear a!I evidence as may be presented on behalf of the city and the applicant or iicensee, and shail present to the council written findings of fact and conciusions of law, together with a recommendation for adverse action. The council shall consider the evidence contained in the record, the hearing examiner's recommended findings of fact and concfusions, and shall not consider any factual testimony not previously submitted to and considered by the hearing examiner. After receipt ofi the hearing examiner's findings, conclusions, and recommendations, the council shall provide the applicant or licensee an opportunity to present oral or written arguments alleging error on the part of the examiner in the application of the law or interpretatio� of the facts, and to present argument related to the recommended adverse action. Upon conclusion of that hearing, and after considering the record, the examiner's findings and recommendations, together with such additional arguments presented at the hearing, the council shall determine what, if any, adverse action shail be taken, which action shaii be by resolution. The council may accept, reject or modify the findings, conclusions and recommendations of the hearing examiner. (c-2) Ex-parte contacts. If a license matter has been scheduled for an adverse hearing, council members shali not discuss the license matter with each other or with any of the parties or interested persons involved in the matter unless such discussion occurs on the record during the hearings of the matter or during the council's final deli@erations of the matter. No interested person shall, with knowledge that a license matter has been schedu(ed for adverse hearing, convey or attempt to convey, orally or in writing, any information, argument or opinion about the matter, or any issue in the matter, to a council member or his or her staff until the council has taken final action on the matter; provided, however, that nothing herein shall prevent an inquiry or communications regarding status, scheduiing or procedures concerning a license matter. An interested person, for the purpose of this paragraph, shail mean and include a person who is an o�cer or employee of the licensee which is the su6ject of the scheduled adverse hearing, or a person who has a financial interest in such licensee. (d) Licensee orapplicant may be represented. The licensee or applicant may represent himself or choose to be represented By another. (e) Record; evidence. The hearing examiner shall receive and keep a record of such proceedings, including testimony and exhibits, and shall receive and give weight to evidence, including hearsay evidence, which possesses probative value commonly accepted by reasonaDle and prudent persons in the conduct of their affairs. (� Council action, resolution fo contain findings. Where the council takes adverse action with respect to a license, licensee or applicant for a license, the resolution by which such action is taken shall contain its Fndings and determination, including the imposition of conditions, if any. The council may adopt a41 or part of the findings, conclusions and recommendations of the hearing examiner, and incorporate the same in its resolution taking the adverse action. (�6-12�i-{� (g) Addifiona! procedures where requ�red. Where the provisions of any statute or �rdinance require additional notice or hearing procedures, such provisions shali be compiied with and shall supersede inconsistent provisions of these chapters. This shail include, without limitation by reason of this specific reference, Minnesota Statutes, Chapter 364 and Minnesota Statutes, Section 340A.415. (h) Discretion to hearnotwithsfanding withdrawa� orsurrenderof application orlicense. 7he council may, at its discretion, conduct a hearing or direct that a hearing be held regarding revocation or denial of a license, notwithstanding that the applicant or licensee has attemQted or purported to withdrew or surrender said license or application, if the attempted withdrawal or surrender took piace after the appficant or licensee had been notified of the hearing and potential adverse action. (i) Continuances. Where a hearing for the purpose of cAnsidering revocation or suspension of a license or other disc+plinary action involving a license has been scheduled before the councif, a continuation of the hearing may be granted by the council president or by the councif at the request of the licensee, license applicant, an interested person or an attorney representing the foregoing, upon a showing of good cause by the party making the request. Q) If the council imposes an adverse action as defined in section 310.01 above, a generic notice ofi such action shall be prepared by the license inspector and posted by the licensee so as to be visible to the public during the effective period of the adverse action. The Iicensee shall be responsibie for taking reasonable steps to make sure the notice remai�s posted on the front door of the licensed premises, and failure to take such reasonable precautions may be grounds for further adverse action. (k) lmposition of costs. The council may impose upon any licensee or license applicant some or all of the costs of a contested hearing before an independent hearing examiner. The costs of a contested hearing include, but are not fimited to, the cost of the administrative law judge or independent hearing examiner, stenographic and recording costs, copying costs, city staff and attorney time for which adequate records have been kept, rental of rooms and equipment necessary for the hearing, and the cost of expert witnesses. The council may impose alI or part of such costs in any given case if (i) the position, claim or defense of the licensee or applicant was frivolous, arbitrary or capricious, made in bad faith, or made for the purpose of delay or harassment; (ii) the nature of the violation was serious, or involved violence or the threat of violence by the licensee or empfoyees thereof, or involved the sale of drugs by the licensee or empioyees thereof, and/or the circumstances under which the violation occurred were aggravated and serious; (iii) the violation created a serious danger to the public health, safety or welfare; (iv) the violation involved unreasonable risk of harm to vulnerable persons, or to persons for whose safety the licensee or applicant is or was responsible; (v) the applicant or licensee was sufficiently in control of the situation and therefore could have reasonably avoided the violation, such as but not limited to, the nonpayment of a required fee or the failure to renew required insurance policies; (vi) the violation is covered by the matrix in section 409.26 of the Legislative Code; or (vii) the violation involved the sale of cigarettes to a minor. {I) Imposition of fines. The council may impose a fine upon any licensee or license appficant 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 iieu of other adverse action in the sole discretion of the council. To the extent any other provision of the Legislative Code provides for the imposition of a fine, both provisions shall be read together to the extent possible; provided, however, that in tfie case of any conflict or inconsistency, the other provision shalf be controlling. (m) Presumpfive penalties force�tain violations. The purpose of this secUon is to establish a sta�dard by which the city council determines the amount of fines, the length of license suspensions and the propriety of revocations, and shall apply to aN license types, except that in the case of a violation invofving a liquor license § 409.26 shafl apply where a specific violation is fisted. These penalties are presumed to be appropriate for every case; however the council may deviate therefrom in an individual case where the council finds and determines that there exist substantial and compeliing reasons making it more appropriate to do so. When deviating from these standards, the council shall provide written reasons that specify why the penalty selected was more appropriate. Type of Viola6on Appearance 1st 2nd 3rd 4th Revocation (1) Violations of conditions placed on the license $50�.00 fine $1,00�.00 $2,000.00 fine and 10- fine day suspension (2) Violation of provisions of the iegislative code $500.00 fine $1,000.00 $2,000.00 fine and 10- relating to the licensed activity fine day suspension Revocation (2) Violation of provisions of the legisiative code relating to the Iicensed activity, other than violations of the food code (3) Failure to permit entrance or inspection by LIEP inspector or police $500.00 fine $1,000.00 fine 5-day 10-day suspension suspension ������ $1,000.00 fine and 10- Revocation day suspension 15-day suspension Revocation (4) Commission of a crime other than a fefony $700.00 on the premises by a licensee or employee (5) Commission of a felony on the premises by a$2,000.00 ficensee or employee (6) Death or great bodily harm in establishment 30-day related to violation of law or license conditions suspension (7) Failure to pay license fees (8) Critical violations under 331A (9) Non-criticai violation under 331A (i) Fines payable without hearing. $1,500.00 5-day suspension Revocation n/a 60-day Revocation suspension Revocation $250.00 $500.00 $150.00 $250.00 $1,000.00, 5-day suspension $500.00 Revocation n!a n/a Revocation $1,000.00 A. Noiv✓ithstanding the provisions of section 310.05(c), a licensee who would be making a first or second appearance before the council may elect to pay the fine to the Department of Safety and Inspections without a council hearing, unless the notice of violation has indicated that a hearing is required because of circumstances which may warrant deviation from the presumptive fine amount. Payment of the recommended fine wiil be considered to be a waiver of the hearing to which the licensee is entitied, and will be considered an "appearance" for the purpose of determining presumptive penalties for subsequent violations. 8. For adverse action initiated under Chapter 331A of this Code, a fine may be paid without a hearing regardless of how many prior appearances that licensee has made before the Council, The above council hearing requirement applies to violations under Chapter 331A unless the fine recommended by the Department of Safety and Inspections is equal to or less than the fine amount outlined in the above matrix. Payment of the recommended fine will be considered to be a waiver of the hearing to which the licensee is entitled, and will be considered an "appearance" for the purpose of determining presumptive penaities for subsequent violations. A non-critical violation under chapter 331A shail not be considered an "appearance" for purposes of determining presumptive penalties for non-331A violations. A council hearing is required if the Department of Safety and lnspections recommends a fine that is an upward departure for the amount outlined above. (ii) Multiple violations. At a licensee's first appearance before the city council, the council shall consider and act upon all the violations that have been alleged andlor incorporated in the notices sent to the licensee under the administrative procedures act up to and including the formal notice of hearing. The council in that case shall consider the presumptive penalty for each such violaiion under the "1st Appearance" column in paragraph (b) above. The occurrence of multipie violations shall be grounds for departure from such penalties in the council's discretion. (iii) Violations occurring after the date of the notice of hearing. Vioiations occurring after the date of the notice of hearing that are brought to the attention of the city attorney prior to the hearing date before an administrative law judge (or before the council in an uncontested facts hearing) may be added to the notice(s) by stipulation if the licensee admits to the facts, and shall in that case be treated as though part of the "1 st Appearance." In alf other cases, violations occurring after the date of the formal notice of hearing shall be the subject of a separate proceeding and dealt with as a"2nd Appearance" before the council. The same procedures shall appiy to a second, third or fourth appearance before the council. {iv) Subsequent appearances. Upon a second, third or fourth appearance before the council by a particular licensee, the councif shatl impose the presumptive penalty for the violation or viofations giving rise to the subsequent appearance without regard to the particular violation or violations that were the subject of the first or prior appearance. However, non- criticai violations of Chapter 331A shall not be counted as an "appearance" before the Council in relation to any vioiation other than another violation of Chapter 331A. (v} Computation of time. 6 �,' �, (� (� (1) ff a licensee appears before the councii for any violaiion in paragraph (m) where that violation has occurred within riveive (12) calendar months after the first appearance of the same licensee for a violation listed in paragraph (m) above, the currenf appearance shall be treated as a second appearance for the purpose of determining the presumptive penalty. (2) !f a licensee has appeared before the council on two (2) previous occasio�s for violations fisted in paragraph (m), and if said licensee again appears before the council for a violation listed in paragraph (m), and if the current vioiation occurs within eighteen (18) calendar months of the violation that gave rise to the first appearance before the council, then the current appearance shall be treated as a third appearance for the purpose of determining presumptive penalty. (3) !f a licensee has appeared before the council on three (3) previous occasions, each for violations listed in paragraph (m), and if said licensee again appears before the council for a violation contained in paragraph (m), and if the current viofation occurred within twenty-four (24) caiendar months of the violation that gave rise to the first appearance, then the current appearance shall be treated as a fourth appearance for the purpose of determining the presumptive penalty. (4) Any appearance not covered by subsections (1), (2) or (3) above shall be treated as a first appearance. In case of multiple violations in any appearance, the date to be used to measura whether twelve (12), eighteen (18), or twenty-four (24) months have elapsed shall be the date of the violation last in time at the first appearance, and the date of the violation first in time at any subsequent appearance. (5) Notwithstandi�g subsections (iv)(1), (2), (3) or (4) above, a second appearance before the council regarding a death or great bodily harm in a licensed establishment that is related to a violation of the law or license conditions shafi be counted as a second appearance, regardfess of how much time has passed since the first appearance if the first appearance was aiso regarding a death or great bodily harm in a licensed establishment. A third appearance for the same shall be counted as a third appearance regardless of how much time has passed since the first or second appearance. (Code 1956, § 510.05; Ord. No. 17551, § 2, 4-19-88; Ord. No. 17559, §§ 1, 2, 5-17-88; Ord. No. 17659, § 1, 6-13-89; Ord. No. 17911, § 1, 3-10-92; C.F. No. 94-46, § 7, 2-2-94; C.F. No. 94-898, §§ 2, 3, 7-13-94; C.F. No. 94-134D, § 2, 10-19-94; C.F. No. 95-�173, § 4, 531-95; C.F. No. 05-180, § 1, 4-6-05; C.F. No. 06-954, § 1, 11-8-06; C.F. No. 06-1072, § 1, 12-27- 06; C.F. No. 07-149, § 73, 3-28-07; C.F. No. 07-1053, § 1, 11-28-07)