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08-374Council File # 6g ' 37 GreenSheet# �ps"%a2(op RESOLUTION OF, SAINT PAUL, MINNESOTA Presented by � 2-U 2 WHEREAS, Billy Neng Yang d/b/a Asian Cuisine (License ID# 20030001450) located at 945 3 Rice Street in Saint Paul received a Notice of Intent to Revoke Licenses dated November 8, 2007; and 4 5 WHEREAS, the Notice alleged that on August 24, 2007, licensee served beer without food in 6 violation of License Condition Number 1 and St. Paul Legislative Code § 409.15(a)(2); and 7 8 WHEREAS, the Notice also alleged that on August 24, 2007, licensee served four (4) cases of beer 9 at one time by rolling the cases to a table on a cart in violation of St. Paul Legislative Code § 409.02; and 10 11 WHEREAS the Notice also alleged that on October 21, 2007, licensee allowed a minar to consume 12 intoxicating liquor; and 13 14 WHEREAS, applicant denied the allegations and requested a hearing before an Administrative Law 15 Judge; and 16 17 WHEREAS, a hearing was held before an Administrative Law Judge on February 6, 2008, at which 18 each party was represented by Counsel and presented testimony and the City offered exhibits; and 19 20 WHEREAS, a Report was issued on February 28, 2008, in which the Administrative Law Judge 21 issued Findings of Fact, Conclusions of Law, a Recommendation and a Memorandum; and 22 23 WHEREAS, the ALJ found that there was sufficient proof of all the alleged violations; and 24 25 WHEREAS, the Administrative Law Judge also found that license revocation is an appropriate 26 sanction under the circumstances; and 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 WHEREAS, at a public hearing on March 19, 2008 the Council of the City of Saint Paul considered all the evidence contained in the record, the ALJ's Findings of Fact, Conclusions of Law, and Recommendations, and the oral arb ments of the City presented before the Council, and licensee did not appear; now, therefore, be it RESOLVED, that the Council of the City of Saint Paul issues this decision based upon consideration of the record of the entire proceedings herein, including the hearings before the AL7 on all the documents and exhibits introduced therein, the Findings of Fact, Conclusions of Law, Recommendation and memorandum as referenced above and the deliberations of the Council in open session of that hearing; and be it FURTHER RESOLVED, that the Findings of Fact, Conclusions of Law, Recommendation and Memorandum of the Administrative Law Judge in this matter are hereby adopted as the Findings and Conclusions of the City Council in this matter; and be it 08- 37 L� 43 44 45 46 47 48 49 50 51 52 53 54 FURTHER RESOLVED, that deviation from the penalty matrix in St. Paul Leg. Code § 310.05 and § 409.26 is appropriate because this adverse action contained mulriple violations and two of the prior adverse actions also contained multiple violations; and be it FURTHER RESOLVED, that deviation from the penalty matrix is also based on a total of four appearances before the Council for adverse license action between December of 2006 and March of 2008; and be it FINALLY RESOLVED, that all licenses held by Billy Neng Yang d/b/a Asian Cuisine are hereby revoked effective upon passage and signature of this resolution pursuant to Chapter 6 of the Saint Paul City Charter for the reasons set forth above and contained in the record. 55 A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and 56 to the license holder. Bostrom Carter Harris 'eas Nays Absent Requ gteG d b Depariment of: ��—�– �/ I � � y ,, / � �k�t. � �X�/( ✓ By: ✓ ✓ Approved by the Office of Financial5ervices Stazk ,/ B y Thune �/ App�evc by City Att�orney - .� (� °? By: Adopted by Council: Date y/���JpD�� Approv � y M or fo mi si � C cil Adoption Certified by Council Secretary g � By: -- i ' / Approved by ay : ate By: � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � �-37l� s� —�ossar�.,&i��eo� � zannnrz-oa Co�rtact Person & Phone: Rachel Tiemey 266-8770 mus[ tse on 02-APR-0S Doc. Type: RESOLUTION EAOCUment Required: Y DocumentConWct: JulieKraus � Assign Number For Routing Order ContactPhone: 266-8776 Total # of Signature Pages _(Clip All Loptions for Signature) Green Sheet NO: 3051260 0 eot of Safety & Tnspectioos 1 ept of Saferi & Inspulions I I)ensrtnent Director 2 'tvAttornev I 3 a or's OBce Ma odASSistant 4 ouncil 5 i Cleck l Ci Qerk Memorializing City Council action taken on Mazch 19, 2008 revoking all licences held by Billy Neng Yang, d/b)a Asian Cuisine (License ID#20030001450) for the premises located at 945 Rice Street, Ste. A in Saint Paul. Planning Commissw� CIB Committee Civil Service Commission 1. Has this personifirm ever wodced under a contract for this department? Yes No 2, Has ihis personffirm 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 Exptain all yes answers on separete sheet and attach to green sheet Initiating Probfem, Issues, Opportunity (V'Iho, What, When, Where, Why): A public hearing was held on March 19, 2008 to discuss the Administrarive Law Judge's Finding of Fact, Conclusion of Law, Recommendarion and Memorandum from the administrafive hearing of February 6, 2008. AdvanWges If Appfoved: Licenserevocarion DisadvanWges IfApproved: None Disadvantages If Not Approved: Transaction: Funding Source: Financial Information: (Explain) CostlRevenue Budqeted: Activity Number: March 20, 2008 126 PM Page 1 OFFICE OF "IT-� CITY ATTORNEY .Iahn J Choi, CiryAttorney Dg CI1 1 �F SLi11V 1 PtiVl.. CivilDiv"uton ChristopherB.Co7eman,Mayor 400CiryHall Telephone:651266-87I0 ISWestKelloggBlvd Facsimile:651298-5619 Saint Paul, M:nnesota 55702 December 26, 2007 NOTICE OF ADMINISTRATIVE HEARING Jeffrey J. Fenske Ritter & Fenske, LTD Attorneys at Law 461 University Avenue St Paul, MN 55103-1936 RE: All licenses lield by Biliy Neng Yang d/b/a Asian Cuisine for the premises located at 945 Rice Street, Ste. A in Saint Paul License ID #20030001450 Dear Mr. Fenske: Please take notice that an Administrative Hearing will be held at the following date, time and location concerning all the licenses held at the premises identified above: Date: Wednesday, February 6, 2008 Time: 9:30 a.m. Locafion: Room 42 (Basement) City HalUCourthouse 15 West Kellogg Boulevard St. Paul, NIN 55102 The heazing will be presided over by an Administrative Law 7udge from the State of Minnesota Office of Administrative Heazings: Name: Barbara L. Neilson Office of Administrafive Hearings 600 North Robert Street St. Paul, MN 55101 Telephone: (651) 361-7845 The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse action against such licenses, under Chapter 310, including sections 310.05 and 310.06, of the Saint Paul Legislaflve Code. Adverse action may include revocation, suspension, denial, fines and other penalties or conditions. AA-AOA-Sao EYnployer Asian Cuisine December 26, 2007 Page 2 Ob'-3�c� Evidence will be presented to the judge which may lead to adverse action against all the licenses held at the above premises as follows: On August 24, 2007, an undercover St. Paul police officer entered your establishment and went to the bar to order a can of soda and Corona Beer, no one asked hinn for identi£cation either at the door or at the bar. Once he purchased his soda and beer no one attempted to talk with him until he asked for menu thirly (30) minutes later. Around 10:00 p.m., the officer noticed a table of 15-20 people driuldng beers and there was not food present. This a violation of license condition #1 which states: "The sale of wine and beer wi[I take place only in conjunction with the sale and service of footL Alcoholic beverages cannot be so1d, provided or poured when the kitchen is closed Patrons must purchase food with a drink purchase." Also, Saint Paul Legislative Code §409.15(a) (2) which states "On-Sale Wine shall mean a license authorizing the sale of wine not exceeding fourteen (I4) percent alcohol by volume, for consumption on the Zicensed premises only in conjunction with the sale of food " and §409.15 (a)(3)(e) which states "On Sale Malt Beverages. A holder of an on-sale wine Zicense issued pursuant to this section who is also licensed to sell on sale 3.2 malt liquor and whose gross receipts are at least sixty (60) percent attributable to the sale of food may be permitted by the city council to also sell intoxicating malt Ziquors at on-sale in conjunction with the sale of food ..." Around 10:00 p.m., the same officer notice a Yarge crowd at southwes4 corner of the bar drinking heavily. It appeared they had just ordered four (4) cases of 24 pack (12 ounce bottles) of Corona Beer. The bartender rolled up all four cases on a cart to the crowd at the table. The officer then observed people coming into the bar and members of the large crowd open a bottle from the case and hand it to them. This is a violation of Saint Paul Legislative Code 409.02 which states: "On-sale shall mean the sale of liquor bv the glass for consumption on t{te premises only." On October 21, 2007, around 12 midnight, a St. Paut police officer observed a group of males entering the bar. One of the males he noticed appeared to be younger then 21 years old. Security at the door told the male that he needed to be 21 years old to enter and the group went back outside. The officer then saw the owner/manager of the bar talking to the group and he noticed they were no longer outside the door. When the officer approached security and asked where the group went, he was told the owner allowed them inside, but they could not drink alcohol. The officer then looked inside the front door and saw the young male he suspected as underage holding and drinking from a bottle of beer. He called for an on-duty squad to bring him a citation and while he was waiting the suspect came over to the door drinking a Corona Egtra beer. When he began to walk out of the door, the officer asked him for identif'ication and was told he did not have identification. The police officer escorted him to the squad and he was then identified by the DVS website as 19 years old. He was issued a citation for underage consumption. This is a violation of Saint Paul Legislafive Code 409.08 (2) (a) which states: "No licensee, or agent or employee thereof shall serve or dispense upon the licensed premises any intoxicating liquor to any minor; no shall such licensee, agent or employee permit any minor to be furnished with or to consume an such liquor on the licensed premises; nor shall such lieensee, agent or employee permit any minor to be de[ivered any such liquor." AA-aDn.-88o smpioyeE Asian Cuisine December 26, 2007 Page 3 D8-3�y According to Saint Paul Legislaiive Code §310.05 (m) revocation of licenses is recommended after four (4) appearances before City Council. You have met the four (4) appearance requirement: 1. On December 27, 2006, you paid a$500.00 penalty as a result of an adverse action initiated by DSI for the sale of beer without food in violation of condifion #1 of your license. S¢int Pau1 Legislative Code §3I0.05 (m)(I) states: "Payment of the recommended fine will be considered to be a waiver of the hearing to which the Zicensee is entitled and will be considered an "apnearance' for the purposes of determining presumptive penalties for subsequent violations." 2. On June 20, 2007, City Council imposed a$1,500 penalty (CF#07-589) from a April 3, 2007 administrative hearing regarding violation of license condition #3 for failure to provide a videotape upon request of Saint Panl Police and operating after hours. SaintPaul Legislative Code 310.05 (m) (v)(I) states: "If a licensee appears before Council for any vioLation in paragraph (m) where that violation has occurred within twelve (I2) calendar months after the first appearance of the same licensee for a violation listed in paragraph (m) above, the current appearance shall be treated as a second aDpearance for the purpose of determining the presum tive penaltv." 3. On September 12, 2007, Council imposed a$2,000 penalty and a ten (10) day suspension (CF#07- 843) for consumption of alcohol after hours. Saint Paul Legislative Code 310.05 (m) (v)(2) states: "If a Zicensee has appeared before the council on two (Z) previous occasions for violations listed in paragraph (m), and if said licensee again appears before the council for a violation listed in paragraph (m), and if the current violation occurs within eighteen (I S) calendar months of the violation that gave rise to the first appearance before the council, then the current apDearance shall be treated as a third a�pearance for the purpose of determiningpresum�tive enal �t�" The violations outlined in this current adverse action constitute the fourth (4` violafion to the conditions of your license. Saint Paul Legislative Code 3I0.45 (m) (v)(3) states: "If a licensee has appeared before the council on three (3) previous occasions, each for violations Zisted in paragraph (m), and if said licensee again appears before the council for a violation contained in paragraph (m), and if the current violation occurred within twenty four (24) calendar months of the violation that gave rise to the first appearance, then the current a�pearance shall be treated as a fourth apnearance for the�urpose of determininn the nresumntive �enaltv." Therefore, according to St. Paul Legislative Code §310.05 (m) (1) the licensing office will recommend revocation of all your licenses. The licensee has the right to be represented by an attorney before and during the heazing or can represent him/herself. The licensee may also have a person of hislher choice representing his/her interests, to the extent not prohibited as unauthorized practice of law. The heazing will be conducted in accordance with the requirements of Minnesota Statutes secrions 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrative Law Judge will have all parties identify themselves far the record. The City will then present its witnesses and evidence, each of whom the licensee or attorney may cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the City's attomey may cross-examine. AA-ADA-aE0 Smployer Asian Cuisine December 26, 2007 Page 4 08 - 3� � The Administrative Law Judge may in addition heaz relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants of properry located in close pro�mity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding azguments may be made by the parties. Following the hearing, the Judge will prepaze Findings of Fact, Conclusions of Law, and a spec�c recommendation for action to be taken by the Cify Council. The licensee should bring to the hearing all documents, recozds and witnesses which will or may be needed to support its position. Subpoenas may be available to compel the attendance of witnesses or the producrion of documents in conformity with Minnesota Rules, part 1400.7000. If you think that this matter can be resolved or settled without a formal heazing, please contact the undersigned. If a sfipulation or agreement can be reached as to the facts, that stipulation will be presented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. If you fail to appear at the heazing, your ability to challenge the allegations will be forfeited and the allegations against you which haue been stated eazlier in this notice may be taken as true. If non-public data is received into evidence at the hearing, it may become public unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. If you have any questions, you can call me at 266-8710. V ery truly yours, 2 t�,Q.�t�.�, ' ", ` � Rachel Tierney Assistant City Attorney cc: Diane Nordstrom, Office of Administrative Hearings, P.O. Box 64620 St. Paul, MN 55164-0620 Christine Rozek, Deputy Director of DSI vl�fary Erickson, Council Secretary Bi1lyNeng Yang, Asian Cuisine, 945 Rice Street, Ste. A, St. Paul, MN 55117 Kia Vang, 10452 Vermillion Cucle NE, Blaine, MN 55449 Kerry Antrim, Community Organizer, District 6 Planning Councii 213 Front Avenue, St. Paul, MN 55117 Tk 2, Llq 10341 Waterfi Drive, Woodbury, MN 55129-8534 AA-ADA-EEO Ehployer