08-374Council File # 6g ' 37
GreenSheet# �ps"%a2(op
RESOLUTION
OF, SAINT PAUL, MINNESOTA
Presented by
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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
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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
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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
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11 WHEREAS the Notice also alleged that on October 21, 2007, licensee allowed a minar to consume
12 intoxicating liquor; and
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14 WHEREAS, applicant denied the allegations and requested a hearing before an Administrative Law
15 Judge; and
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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
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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
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23 WHEREAS, the ALJ found that there was sufficient proof of all the alleged violations; and
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25 WHEREAS, the Administrative Law Judge also found that license revocation is an appropriate
26 sanction under the circumstances; and
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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
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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
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Approved by the Office of Financial5ervices
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Thune �/ App�evc by City Att�orney
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Adopted by Council: Date y/���JpD�� Approv � y M or fo mi si � C cil
Adoption Certified by Council Secretary g �
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Approved by ay : ate
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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