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08-826Council File # �g � O �' � Green Sheet # 3nsr] �� RESOLUTION SAtNT RAUL; NCINNESOTA -- -�'� --- 2 WHEREAS, International Network Association, Inc. d/b/a Luxor Lounge (License ID# 3 20060003837) located at 719 North Dale Street in Saint Paul received an Amended Notice of Violation 4 dated March 6, 2008 ; and WHEREAS, the Notice alleged violation of the St. Paul Legislative Code § 409.07 for service of alcoholic beverages after 2:00 a.m.; and 10 11 12 13 14 15 16 17 18 WHEREAS, the Notice also alleged that the business was being operated in a way that permits conditions that unreasonably annoy, injure or endanger the safety, health, morals, comfort or repose of any considerable number of inembers of the public; and WHEREAS, the Notice also alleged that the licensee violated condition number 5 which states that the license holder shall provide security to patroi the exterior of the premises on a regular basis between 8:00 p.m. and 2:00 a.m. to prohibit loitering; and WHEREAS, the Notice also alleged a violation of the St. Paul Legislative Code §409.26(b)(9) for failure to take reasonable steps to prevent persons from leaving the licensed premises with alcoholic 19 beverages; and 20 21 WHEREAS, applicant denied the allegations and requested a hearing before an Administrative Law 22 7udge; and 23 24 WHEREAS, a hearing was held before an Administrative Law Judge on May 16, 2008, at which 25 each party presented testimony and offered e�ibits; and 26 27 WHEREAS, a Report was issued on June 9, 2008, in which the Administrative Law Judge issued 28 Findings of Fact, Conciusions of Law, a Recommendation and a Memorandum; and 29 30 WHEREAS, the ALJ found that there was sufficient proof of the above-stated violations; and 31 32 WHEREAS, the Administrative Law Judge also found that a fine of $1,000 and additional license 33 conditions are appropriate sanctions under the circumstances; and 34 35 WHEREAS, at a public hearing on July 16, 2008 the Council of the City of Saint Paul considered 36 all the evidence contained in the record, the Administrative Law Judge's Findings of Fact, Conclusions of 37 Law, and Recommendations, and the oral arguments presented before the Council; now, therefore, be it 38 39 IZESOLVED, that the Council of the City of Saint Paul issues this decision based upon 40 consideration of the record of the entire proceedings herein, including the hearings before the AI,J on May 41 16, 2008, all the documents and exhibits introduced therein, the Findings of Fact, Conclusions of Law and i li • 42_ _Recommendation-as refereuce�-above, the arguments from t3ie public hearing and the �eTilierah`ons of the - = 43 council in open session of that hearing; and be it ___ ___ = 44 -- - -- 45 F[7RTT�R RESOLVED, that the Findings of Fact, Conclusions of Law, Recommendarion and 46 Memorandum of the Aduiinistrative Law Judge in this matter aze hereby adopted as the Findings and 47 Conclusions of the City Council in this matter; and be it 48 49 FLTRTHER RESOLVED, that deviation from the penalty matrix in St. Paul I,eg. Code § 310.05 is 50 appropriate because this adverse action contained mulriple violations, occurred just six (6) months after the 51 licensee became licensed, involved after hours service of alcohoi, and invoived ongoing nuisance behavior 52 creating neighborhood disturbances; and be it 53 54 FURTHER RESOLVED, that the 2:00 am. permit are hereby revoked for the remainder of the 55 license term. Licensee can obtain another 2:00 a.m. permit simultaneously with renewal of the liquor 56 license; and be it 57 58 FURTHER RESOLVED, that a fine of $1000.00 is imposed against ali licenses held by 59 Internationai Network Association, Inc. d/b/a Luxor Lounge; and be it 60 61 FURTHER RESOLVED, that the $1000.00 fine be paid within 30 days ofthe passage and approval 62 of this resolution; and be it 63 64 65 f6 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 FINALLY RESOLVED, that the following license conditions are hereby placed on all licenses effective upon passage and approval of this resolution: 5. Revision: The license holder is responsible for behavior of all persons on the premises, which includes persons on the patio and in the parking lot. License holder shall provide security to patrol the exterior of the premises between the hours of 8:00 p.m. and 2:30 a.m. or until all patrols have left the premises whichever is later. License holder or security shall immediately notify police of any individuals engaging in unlawful behavior or suspected unlawful behavior. 6. No patrons shall be admitted to the inside of the establishment after 1:00 a.m. Any patron leaving the establishment, including patrons who remain on the patio, after 1:00 a.m. shall not be admitted to the inside of the establishment for any reason. There shall be no sale, consumption or display of alcohol on the patio after 11:00 p.m. 8. There shall be no sale of alcoholic beverages after 2:00 a.m. and licensee shall ensure that all patrons have left the premises no later than 2:30 a.m. /i : � ___ 85 A copy of tkus resolurion, as adopied, shall be sent bg ft�si class mail to Ehe z�dministrative f�awJudge and = 86 to the license holder. Absent Requested by Department o£ � ��— BY: � A Approved by the Office of Financial Services Stark � BY� Thune �/ Approy.ed City Attom�, / n ( i � By: t�f.t. r�.X._�_� Adopted by Council: Date j/)/ Approved ay r o Sub ' i to� Adoption Ce Uy Co cil Secietary gy �f B / �- // r _1 L1C �/ Approve Ma Date � p By: � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � 6 g�_��-1Q — of Safety & Contact Person & Phane: Rachel Tiemey 266-8710 Must Be on Council Agen 06AUG-08 ��rrnCn..�. Doc.Type: RESOLU710N E-Document Required: Y DocumentConWct: JulieKraus ConWct Phone: 266-8776 y Assign Num6er For Routing OMer Total # of Signature Pages _(Clip All Locations for Signature) ,� 0 e t of Saf & Ins eclions 1 e t of Safe & Ins ections De ar�ent Director 2 'ty AttorneY 3 a or's Offise Ma or/Assistant 4 oonci] 5 Clerk Ci Clerk Memorializing City Council acfion taken on 7uly lb, 2008 imposing adverse action against alllicenses held by International Network Association, Inc., d/b/a Luxor Lounge (License ID#20060003837) for the premises located at 719 North Dale Street in Saint Paul. Planning Commission CIB Committee Givil Service Commission 1. Has this person�rm ever worked under a contract for this department? Yes No 2. Has this person(fmm ever been a city employee? Yes No 3. Does this persoNfirtn possess a skill not normally possessed by any curtent ciry employee? Yes No Explain all yes answers on separete sheet and attach to green sheet initiating Problem, Issues, Opportunity (Who, What, When, Where, Why): A adminishative hearing was held on May 16, 2008. The report was issued on June 9, 2008 and a public hearing was scheduled on July 16, 2008 to discuss the Findings of Fac[, Conclusions of Law and Recommenda6on from the Administrative Law Judge. Advantages If Approved: Memorializarion of City Council action take as a result of the public hear.ing DisadvantagesifApproved: None Disadvantages If Not Approved: No memorializarion of City Council acfion taken as a xesult of the public hearing. Transactton: Funding Source: Financial Information: (Explain) Activity Number: CosURevenue Budgeted: July 18, 2008 11:47 AM Page 1 OFFICE OF TF� CITY ATTORNEY John J. Choi, CityAttomey SAINT PAVL � AAAI! June 13, 2008 - _-_ -___-._ __-_-__- �-•��� C J��� ��� " - - - �-- - - - - __ Civd Division C6ristopher8. Co/eman, Mayor 400Ci(yHafl 15 West Kelfogg Bivd. SaintPaul, Mnnesota 55>02 NOTICE OF COUNCIL HEARING Dao Hoang Luxor Lounge 719 Dale Street North St. Paul, MN 55103 08'�a-(�._- Telephone: 65l 266-87�0 Facsimile: 659 298-5619 RE: All the licenses held by International Network Associarion, Inc., d/b/a L�or Lounge for the premises located at 719 Dale Street North in Saint Pau] LicenseID # 20060003837 Dear Ms. Hoang: Please take notice that a public hearing to discuss the report of the Administrative L,aw 7udge concerning the abov�mentioned licenses has been scheduled for Wednesday, July 16, 2008, at 5:30 p.m. in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opportunity to file exceptions to the report with the City Clerk at any time during normal business hours. You may also present oral or written arguruents to the council at the hearing. No new evidence will be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Adminislrative Law 7udge and on the azguments made and exceptions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its judgment and discretion. Sincerely, ���� Rachel Tiemey Assistant City Attorney cc: Diane Nordstrom, Office of Administrative Hearings, P.O. Box 64620, St. Paul, MN 55164-0620 Y1�Iary Erickson, Council Secretary Christine Rozek, Deputy Director of DSI Dao Thanh Hoang, 1868 Kennard Street, Maplewood, MN 55109 Boa Lee, Community Qrganizer, Thomas-DalefDistrict 7 Planning Council 533 North Dale Street, St. Paul, MN 55103-1644 AA-ADA-EEO Employer .: + ,.QFTHEST v-: �. !'� T �, p ;rn;' _ 1� s "_ ,, y� � _, :+r3 e: . z_ .w: �,- -- - - �.. - ; ='�i - ; _ ''��i`t ii�_°:o �J'�IE>fl* 6 8-8a-C, MINNESOTA OFFICE OF ADMINISTRATNE HEARINGS 600 North Robert Street Saint Paul, Minnesota �5101 Maiiing Address: Voice: (651) 361-7900 P.O.Box64620 June 9, 2008 � (6si)seias�a St. Paul, Minnesota 55164-0620 Fax: (6�1) 361-7936 ���k� e 4F �� Shari Moore City Clerk 310 City Hall 15 West Kel{ogg Bivd. St. Paul, MN 55102 a���< ' � ���� ��°°� �°�°�� ��'� Re: In the Matter of All Licenses Heid by Intemationai Network Association, Inc., d/b/a Luxor Lounge, for fhe Premises Located at 719 Dale Street North in Saint Paul; OAH Docket No. 3-6020-19439-6 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 enciosed is the officia{ record, with the exception of a copy af the digita! recording of the hearing. If you would like a copy of the digital recording, please contact our o�ce in writing or cail 651-361-7906. Our file in this matter is now being closed. Sincerely, Kd :nh Encl. [ C�2e�J� . � �S!c� KATHLEEN D. SHEEHY E Administrative Law Judge Telephone: (651) 361-7848 Cc achel Tierney Dao Hoang and Diem Nguyen �,C6�-LP - - - — - -- OAH 3-6020-19439-6 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS �OR THE C{TY OF SAfNT PAUL In the Matter ofAll Licenses Held by International FINDWGS OF FACT, Network Association, inc., d/b/a Luxor Lounge, CONCLUSIONS, AND far the Premises tocated at 719 Dafe Street RECOMMENDAT{ON North in Saint Paul. This matter came on for hearing on ivlay '�6, 2008, betore Aciministrative Law Judge Kathleen D. Sheehy, in Conference Room 41 of the City Hall/Courthouse Buiiding, 15 West Kellogg Boulevard, St. Paul, MN 55102. Rachel Tierney, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102, appeared for the City of St. PauPs Qepartment of Safety and Inspections (DSI). Dao Hoang (Licensee) and Diem Nguyen, 719 Dale Street North, St. Paul, MN 55103, appeared for themselves without counsel. S7ATEMENT OF THE ISSUES 1. On September 26, 2007, and September 29-30, 2007, did the Licensee: (a) Allow the afterhours consumption or display of alcohol, in violation of St. Paul Legislative Code § 409.07; and (b) Sell intoxicating liquor after 2:00 a.m., in violation of Minn. Stat. § 340A.504, subd. 2? 2. On October 13, 2007, did the Licensee: (a} Vio{ate a condition of its license that requised security to patrol the exterior of the premises on a regular basis between the hours of 8:00 p.m. and 2:00 a.m. to prohibit loitering; and (b) Faif to take reasonable steps to stop persons from leaving the premises with alcoholic beverages, in violation of St. Paul Legislative Code § 409.26(b)(9)? 1 � � 1• `' - 3. Should the City take adverse action against fhe licenses in the`form of a fine- in the arnownt_o# $1-0Dfl.�fO a{td Fevision attd amendment ofi - - conditions of licensure? The Administrative Law Judge conciudes that the alfeged violations occurred and that the City may take the proposed adverse action against the licenses. Based on the evidence in the hearing record, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. Dao Hoang is the owner and license holder of a business called internationai Network l�ssociation, inc., ci%b!a Luxor Lounge, iocafed at 713 Dale Street North +n St. Paul. From November 2006 until March 2007, Hoang and her husband, Diem Nguyen, managed a business called Over the Rainbow at that location, pursuant to a management agreement with the license holder. On March 21, 2007, the City Councii approved the ficenses for Luxor Lounge. Luxor Lounge now holds the following licenses: Restaurant (3), Entertainment (B), Liquor On Sale--100 seats or less, Liquor on Sale-2 AM closing, Liquor On 5afe--Sunday, Liquor—Outdoor Service Area, Gambiing Location, Cigarette/Tobacco, and Alarm Permit.� 2. The licenses are subject, in relevant part, to the fofiowing condition: Condition 5: The license holder shail provide security to patrol the exterior of the premises (including the parking fot) on a regular basis between the hours of 8:00 p.m. to 2:OQ a.m. to prohibit loitering. 3. State law precludes the sa4e of intoxicating liquor on licensed premises between the hours of 2:00 a.m. and 8:00 a.m. on any day that alcohol may be sold. The St. Paui Legislative Code prohibits the consumption or display of liquor upon {icensed premises at any time when the sale of such liquor is not permitted. The City has interpreted this ordinance to mean that Licensees must stop seliing alcohol by 2:00 a.m. but may permit customers half an hour (until 2:30 a.m.) to finish their drinks and leave the iicensed premises 5 4. Luxor Lounge is located at the southwest corner of the intersection of Dale Street North and Minnehaha Avenue West. Luxor Lounge has a large parking lot that extends east and south to an alley about midway between � Ex. 1. Z Ex. 2. 3 Minn. Stat. § 340A.504, subd. 2(2006). ° St. Paul Legisiative Code § 409.07. 5 Testimony of Kristina Schweinler. 2 � �1 •i ___. _� ___ __ Minnehaha Avenue and Van Buren Avenus. Ma(ina's Sports Bar is located at the intersection of Dale_Street Norxh_ and �lan BurenAve�as.--ltS�r4lflg-Is�-- extends north to the same ailey that borders the Luxor Lounge parking 1ot. The neighborhood surrounding both bars is primarily reside�fial, and the alley between their premises runs through this residential neighborhood. 5. Although the Luxor Lounge did very little business from March 2007 through August 2007, police records reflect a number of contacts concerning disruptive conduct by patrons. The Licensee allowed people to congregate in the parking lot, and during the spring and summer months it became a gathering spot for persons who were not necessarily paying customers of the Licensee. in this pesiod of time, police made one QWl arrest and one arrest for possession of a firearm by a felon on the premises, and o�cers responded to calls concerning burglaries, a forcible rape, thefts, fighting, and assaults. Based on these incidents the Police Department began making "Proactive Poiice Visits" (PPVsj.� 6. Beginning in September 2007, the Luxor Lounge became a popu{ar late-night gathering place for the former clientele of Diva's Overtime Lounge.� The Luxor Lounge suddenly became very busy. 7. From September through November 2007, the St. Paul Police Department and DSI received many neighborhood compiaints about noise, garbage, public urination, traffic, fights, automobile thefts, assaults, and reports of shots fired in the vicinity of the Luxor Lounge. Many of the complaints about noise concerned the patio area. Caflers maintained the Luxor Lounge patrons and music were loud and left broken bottles and glass outside. Police responded to cails concerning shots fired in the parking lot, fights, assaults, weapons, narcotics, driving offenses, robbery, and other disturbances. The owners cooperated with the police department in its investigation of crimes occurring on the premises, providing surveiilance tapes when requested.'� 8. One neighbor who lived on Van Buren Avenue called the police between 150 and 200 times regarding the behavior of the Luxor Lounge patrons. ln her experience, the problem hours were between 9:30 p.m, and 2:00 a.m., Thursdays through Mondays. In addifion, she routinely saw large numbers of customers enter the premises at 1:45 a.m., and tfie parking lot was not usually cleared until about 3:00 a.m. Her back yard was south of the alley bordering the Luxor Lounge parking lot. She witnessed public urination and sex, many fights, noise, loud music, and was subjected to profanity directed at her when she asked patrons not to park in her yard. The music piaying at the Luxor Lounge was frequently so loud that her family could nat sleep. If they did fall asleep, they 6 Tes6mony of pao Hoang; Testimony of Diem Nguyen; Ex. C. ' The St. Paul City Gouncil revoked the licenses of Diva's Overtime Lounge in August 2007. 8 Test. of D. Hoang; Test. of D. Nguyen. 9 Testimony of Commander Tina McNamara. � Ex. C. " Testimony of Sgt. Kane. ,t3 �• � i J - were frequentiy awakened between 2:00 and 3:00 a.m. by loud music being _ played in ue#�ictes ar� ##e pa�#cit�g +o�, where patrons wer� attowed congreg� -- before and after bar closing. She rarefy saw security guards from the Luxor Lounge outside in the parking lot.' 9. Befween September 18, 2007, and September 30, 2007, there were six police cails to the Luxor Lounge for disturbances/fights and one for aggravated assault with a gun.' 10. On September 26, 2007, at 1:59 a.m., Offcer Adam Bailey stopped at the Luxor Lounge on a PPV. He did not go inside, but he observed that more people were entering the bar after 2:00 a.m. than were leaving it. At approximately 2:45 a.m., customers began to exit the bar. � 1. Q� � S2ptember 2°, 2�47, at 1:55 a.m., Offices Sai4ey stoppe� at the Luxor Lounge again on a FPV. At 2:00 a.m, ihe parking ioi was compieieiy fuii, people were still entering the bar, and no one was leaving. There were no security guards or bar staff outside in the parking lot or on the patio. There was music playing on the patio, and the combined noise of the music and the patrons on the patio was loud enough to be heard by nearby residents. He entered the bar at about 2:15 a.m. and found it to be full, with many patrons holding full glasses or bottles of alcoho{. He saw someone working behind the bar take money in exchange for a drink. He informed employees that they needed to close the bar. Some patrons were reluctant to leave because they had just purchased drinks. Others congregated in the parking lot because they were reluctant to drive out of the lot while the police were present. Offcer Bailey cailed for assistance to clear the parking lot, and eight to ten additional squad cars responded. There were several verbai arguments and aitercations among patrons as they exited the bar and the parking lot, but no physical fights. No citations were issued to customers or to the employee for after-hours service. 12. Qn September 30, 2007, at 2:18 a.m., Officer Bailey responded to a call complaining that Luxor Lounge customers were being loud and drinking alcohol in the parking lot. At 2:20 a.m., there were approximately 20-30 people in the parking 4ot and on the patio. Mus+c was p4aying loudly on the patio. Inside, the bar was still full. Police informed empioyees that patrons had to start leaving. Again, once people began to leave the bar, they congregated in the parking lot and were reiuctant to drive away. O�cer Bailey again caVied for assistance, and eight to twelve squad cars responded to help clear the parking lot. No citations were issued to customers. ' Testimony of Christa Sulliva�. " Ex. 3-4. "Testimony of Officer Adam Bailey; Ex. 3-4. 75 Test. of Officer A. Bailey; Ex. 3-3. t6 Ex. 3-3 to 3-4. � a �1 � � � ---------- --- — - T3. dn October 1, 20�7, the Licensee removed afl genres of rap music from thejuke box." _ ---- --------- -- 14. On October 10, 2007, the Licensee and members of the police department and DSI attended a communify meeting with neighbors. The neighbors expressed their concerns about safety, noise, pubfic urination in the parking lot, and the {ack of security on the premises. The Licensee believes that much of the neighborhood hostility toward its customers is racially motivated. The owners are reluctant to make changes that might alienate their customers. They also believe the police blame them fior problems caused by customers of Ma{ina's. Nonetheless, they agseed at the meeting to make several changes in the operation of the business: to tum down the volume of the music, discontinue music on the patio, hire additional security guards and have them wear similar clothing so they could be identified more easily, use a security wand on customers upon eniry, change tne music format (no rap music}, and secure the patio area with a larger fence. Either at this meeting or in an earlier meeting with DSI, the Licensee also agreed to refuse entry after 1:00 a.m. to new customers on a voluntary basis for 30 days.� 15. On the night and early morning of October 13-14, 2007, Commander Tina McNamara stopped at the Luxor Lounge severai times to determine whether the owners had made the changes promised at the community meeting. She stopped there at about 10:20 p.m. because she couid hear loud music coming from inside the building while she was stili inside her squad car. She entered the bar and told the disc jockey to turn down ths volume and the bass. The disc jockey turned down the voiume, but the volume was tumed up again after she went outside. Between 11:�0 a.m. and 2:00 a.m, Commander McNamara observed no uniformed security in the parking lot. She did observe two men leave the bar carrying aicohol they had purchased inside. Both identified themselves as being members of the band piaying there that n+ght. One of them threw his drink onto the ground when he noticed police approaching him; the other was drinking whiskey out of a shot glass. She issued a citation for public consumption to the band member drinking out of the shot glass. She saw a male urinating against a corner of the patio. This person was cited for urinating in public. She observed people bringing containers from their cars into the bar, and she observed people bringing giass containers from inside the bar outside onto the patio. OfFicers cited numerous people in the parking lot for having an open bottle in a motor vehicle. 16. On December 13, 2007, the City issued to the Licensee a Notice of Violation pertaining to the incidents described above on September 26 and " Ex. A. 1e Test. Commander T. McNamara. t9 Ex. 4-4. 20 Test. Commander T. McNamara; Ex. 4. 5 o�����' - September 29-30, 2007 Z' At fhat time, DSI recommended that tfie City Council impose a$500 psnaliy an�i add ar revise tfae follow+ag eaadi�iens te#�eiieer�se: -- •(Revision) The license holder is responsible for behavior of all persons on the premises, which includes persons on the patio and in the parking lot. License hoider shall provide security to patrol the exterior of the premises between the hours of 8:00 p.m. and 2:30 a.m. or until all persons have left the premises whichever is later. License holder or security shall immediately notify police of any individuals engaging in unfawFui behavior or suspected unlawful behavior including loitering. •No patrons shall be admitted to the establishment after 1:00 a.m. Any patron {eaving the establ+shment after 1:00 a.m. shall not be re-admitteci for any reason. .There shali be no saVe, consumption or display of afcofioi on the patio after 11:00 p.m. •There shall be no sale of alcohoiic beverages after 2:00 a.m. and licensee shal{ ensure that a!! patrons have left the premises no later than 2:30 a.m. 17. �he proposed conditions are intended to address the probiems �eported to police and DSI by residents in the neighborhood. 18. On December 18, 2007, the Licensee requested a hearing on the atleged violations 22 19. On March 6, 2008, the City issued an Amended Notice of Violation that added the incidents descsibed above on the night of October 13-14, 2007, recommended the same conditions, and increased the proposed penalty to $1,OOQ.00. The hearing was scheduled to take place on March 27, 2008. 20. The hearing was rescheduled, 6ased on the Licensee's request, to take place on May 16, 2008. Sased on these Findings o4 Fact, the Administsative Law Judge makes the foilowing: Z 'Ex5. 72 Ex. 6. Z3 Ex. 7. The Amended Notice o4 Hearing also alleged that a violat+on of license condition #4 occurred on Octobe� 13, 2007. 7his condition requires the license holder to pick up all refuse and trash on the premises and surrounding sidewalks by noon each day. At the outset of the hearing, the Gity withdrew this alleged violafion. 24 Ex. 8. 0 I � / • - - CONCLllS10NS - - - --- --- — 1. The Administrative Law Judge and the St. Pau! C+ty Counci! have authority to hear this matter pursuant to St. Pau! Legislative Gode § 31 �.�5(c). 2. The hearing in this matter was conducted in accordance with the applicabie portions of the procedures set forth in section 310.05 of the St. Paul Legislative Code. 3. The City gave proper notice of the hearing in this matter and has fulfilled all procedural requirements of rule or law. 4. The City has the burden of proving by a preponderance of the evidence that adverse action is warranted against the licenses held by ir,ternationa! Netwrork Associa±ion, ]nc., d!41a Luxor Lounge. 5. The St. Paul City Counci! may take adverse action against any or all licenses or permits, licensee or appficant for a license, on the basis that the (icensee or applicant has failed to comply with any condition set forth in the license or has violated any of the provisions of any statute, ordinance or regulation reasonably related to the licensed activity. 6. The City Councii may aiso take adverse action against a license if the iicensed business, or the way in which such business is operated, maintains or permits conditions that unreasonably annoy injure or endanger the safety, health, morals, comfort or repose of any considerable number of inembers of the pubiic. 7. Adverse action includes the imposition ofi a fine or the imposition of conditions upon a ficense. The City may impose reasonable conditions on a license for the purpose of promoting public heaith, safety and weifare, of advancing the public peace and the elimination of conditions or actions that constitute a nuisance or a detriment to the peaceful enjoyment of urban life, or promoting security and safety in nearby neighborhoods. Reasonable conditions may include a limitation on the hours of operation or on the particular types of activities conducted in the establishment, a limitation or restriction as to the location within the establishment where particular activities may be conducted, or any other reasonabie condition iimiting the operation of the iicensed business to ensure that the business wil{ harmonize with the character z5 St. Paul Legislative Code § 310.06 (b)(5) &(b)(6)(a); see also § 409.12 (any license or permit u�der fhis chapter may be suspended for up to 60 days or revoked or a civil fine imposed not to exceed two thousand dollars ($2,000.00) for each violation on a finding by the council that the ficense or permit holder has faifed to comply with an applicable statute, ru{e or ordinance relating to afcoholic beverages). Z6 St. Paul Legislative Code § 310.06(b)(8). 27 St. Paul Legislative Code § 310.01. zB St_ Pau1 Legislative code § 310.06(c). 7 . � l: —' of the area in which it is located, or to prevent fhe development or continuation of - a rttlisa�ce. -------- --- 8. St. Paul Legislative Code § 409.07(c) preciudes the after-hours consumption or disp(ay of alcohol. 9. The City demonstrated by a preponderance of the evidence that on September 26, 2007, the Licensee permitted the aiter-hours consumption of alcohol. 10. Minn. 5tat. § 340A.504, subd. 2(2006), precludes the sale of intoxicating liquor between the hours of 2:00 a.m. and 8:00 a.m. on days when alcohol may be sold. 1�. Ths City demonstrated by a preponderance of the ev�dence ihat 8it 2:0� a.�,�. or� C JO�tEiiibEi ��'-u, �vv�, iiiB �SC0iiS2E SOid iiituXlCatEiSy ii�uCii. 12. Condition #5 of the License requires the Licensee to have security to patrol the exterior of the premises on a reguiar basis between the hours of 8:00 p.m. and 2:00 a.m. to prohib+t loitering. 13. The City proved by a preponderance of the evidence that on October 13, 2007, the Licensee fai{ed to have sufficient security patroliing the exterior of the premises between 8:�0 p.m. and 2:OQ a.m. to prevent loitering. 14. St. Paul Legislative Code § 409.26(b)(9) requires Licensees to take reasonable steps to stop persons from leaving the premises with afcoholic beverages. 15. The City demonstrated by a preponderance of the evidence that on October 13, 2007, the Licensee failed to take ceasonable steps to stop persons from leaving the premises with alcoholic beverages. 16. Adverse action is justified because the Licensee has failed to comply with a condition of the license; has violated provisions of a statute, ordinance or regulation reasonably related to the licensed activity; and has permitted conditions that unreasonably annoy injure or endanger the safety, health, morals, comfort or repose of any considerable number of inembers of the pub{ic. 17. Section 409.26 of the St. Paui Legislafive Code, applicable to liquor licenses, contains a penaity matrix that sets out presumptive penalties for specific offenses in connection with the sale of intoxicating liquor, including after 29 St. Pau1 Legislative Code § 310.06(c). 6 )• • i f hours display or consumption of alcohol. The occurrence of multiple violations shall be grounds for departure_from such-penal#ies'sn ##�e cfl�nefl's-discretiom� - 18. Pursuant to § 4Q9.26 of the St. Paul Legislative Code, this would be the Licensee's first appearance for lisfed violations. The presumptive penafty is $500 for a first appearance not involving multiple violations. 19. The City's recommendation to impose a fine in the amount of $1,000.00 is reasonable because multiple vio{ations have been found. 20. The proposed ficense conditions are a reasonable response to the problems experienced on the licensed premises. The Administrative Law Judge has made some suggestions with regard to the wording of those conditions in the attached Memorandum. Based Memorandum following: U�30fi these COIlCIU510f1S and i0i th0 reasons explained i�i i�ic attached hereto, the Administrative Law Judge makes the RECOMMENDATION lt is respectFuliy recommended that the St. Paui City Councif take adverse action against the ficenses held by fnternational Network Association, Inc., d!b/a LuxorLounge. Dated: June 9, 2008 Reported: Digitally recorded, No transcript prepared NOTICE �Q THLEEN D. SHEEHY Administrafive Law Judge This repost is a recommendation, not a final decision. The St. Paul City Council wi!! make the final decision after reviewing the record and may adopt, reject or modify the Findings of Fact, Conclusions a�d Recommendation contained herein. Pursuant to Section 310.05 of the St. Paul Legislative Code, the City Council's final decision shail not be made until this Report has been 30 St. Paul Legislative Code § 409.26(b). 31 Id. § 409.26(c}. � ����� macte availabte to the parEies to the proceeding and the Licensee has been provided an opportunity to pcesent ora! or-wft4terr argt�ments o� - — part of the Administrative Law Judge in fhe application of the law or the interpretation of the facts and an opportunity to present argument refating to any recommended adverse action. The Licensee and any interested parties should contact Shari Moore, Saint Paui City Clerk, 290 City Hall, 15 West Kellogg Boulevard, St. Paui, MN 55102, to ascertain the procedure for presenting argument. MEIUIORANDUM The Administcative Law Judge has concluded that the City proved the individuaf violations a{Veged in the Amended Notice of Violation by a preponderance of the evidence. On September 26, 2007, the pofice officer testified that when he arrived at 2 v0 a.m., more peopie were entering the bar than were leaving it, and fhe parking lot was full until 2:45 a.m., when patrons began to leave. Although this evidence is slim, it permits the reasonabie inference that patrons were permitted to drink past the 2:30 a.m. deadfine allowed by the City policy. The o�cer also testified that when he entered the bar at about 2:15 a.m. on September 29, 2007, many patrons had full glasses or bottfes of alcohof, and he saw an after-hours sale take place. Although the Licensee strongfy denied ever making an after-hours sale, she admits the officer discussed the sale with her the next day, which prompted her to contact the City to obtain clarification of the City's policy on hours of sale, disp}ay, and consumption. Based on the record as a whole, this evidence is su�cient to show the violation occurred. The Licensee also maintains that on October 13, 2007, it did not fail to have su�cient security patroiling the exterior of the premises between 8:00 p.m. and 2:00 a.m. to prevent loitering. Its security guard testified that he patrols the exterior once or twice an hour on weekend nights. He aiso testified that he was not working the nights of September 29 or 34, and he did not recali if he was there the night of October 13, 2007. Even assuming someone efse patrofled the exterior once or twice per hour on those nights, this is ciearly insufficieni to deter the loitering that took place. The purpose of this license condition is to minimize the noise, trafFic, and disruption occurring in the parking lot. The security guards are obligated not just to patrol, but to encourage people to either enter the bar or to leave the premises promptly, without disturbing neighbors. If the Licensee had pol+cies that more strangly encouraged patrons to leave in an orderly manner by 2:00 a.m., it may not have been necessary at 220 or 230 a.m. for police squads to encourage their departure in a more intrusive manner. The Licensee's main argument conceming the aflegation that it faiVed to take reasonable steps to stop persons from leaving the premises with alcoholic beverages is that Comrnander McNamara did not see the band member exit the 32 Testimony of Eric Mirtica. 10 o����'`� -- - ----- -------- Luxor Lounge with a drink in hand. This is tnre. She did, however, see him inside the bar, and when she_saw him outside�ha-ba�,- I�e-�a � — - - - - s-k+e#�g� ZJlass" similar fo the glasses used at the Luxor Lounge. In addition, he admitted to her that the drink was from the Luxor Lounge. This evidence is sufficient to prove the violation. More important that any individual violation, however, is the conciusion that adverse acfion is justified here because the Licensee permits conditions that unreasonably annoy, injure, or endanger the safety, health, morals, comfort or repose of any considerable number of inembers of the public. The Administrative Law Judge believes that the Licensees are hard-working business owners who are trying to survive financialiy in difficult times. The Administrative Law Judge also concurs with the testimony of Sgt. Kane, who believes that the Licensees have attempted to improve the operation of their business, but have been overwheimed wifh tne magnitude ofi tne issues confronting them. Tne Licensees must understand, however, that unless they control the behavior of their customers, in the parking lot as well as the interior of the bar, and uniess they operate in a manner that is respectful of the neighborhood, they will not survive as a (icensed business, The Licsnsees believe whole-heartedly that police and neighborhood harassment of their customers is responsible for many of the issues in the parking lot. They also appear to beiieve that they are being blamed for many issues that are attributable to the customers of Malina's, the other bar that operatss nearby. The Administrafive Law Judge has found no evidence in the record, hawever, that the disruptive conduct at issue here is attributable to customers of Mafina's. And although the police and neighbors have arguably "harassed" the patrons of Luxor Lounge by making the parking fot the focus of sustained police attention, this attention does not appear to be raciaily based but is rather an understandable response to the disrespectFul conduct that has occurred there. No neighborhood should have to tolerate the conduct that has occurred in or near the parking fot of the Luxor Lounge. 7he City has proposed revised or additionai conditions on the ficense to address the problems described in this Report. One of the proposed conditions is: •(Rev+sion) The license holder is responsible for behavior of ail persons on the premises, which includes persons on the patio and in the parking lot. License holder shail provide security to patrol the exterior of the premises between the hours of 8:00 p.m. and 2:30 a.m. or until all persons have left the premises whichever is later. License holder or security shall immediately notify police of any 11 / � � • � � __ _ _ ___. ____- irrdividuals engaging in unlawfuf behavior or suspected unlawful behaviorincludingloitering.33 ------- — The Administsative Law .ludge agrees that, in generaf, it would be reasonabfe to impose a condition that reinforces the Licensee's obligation to address behavior on the patio and in the parking lot and to require security until af{ customers have left the parking lot. The Administrative Law Judge is concerned, however, that the itaficized language above is vague and wou{d be difficult to enforce. The reference to "suspected unlawful behavior including loitering" is confusing, because it suggests the Licensee must report only "unlawFul" ioitering, whereas the conduct that may occur in the parking lot after ciosing time may be disruptive and noisy but not necessarily unlav�rfui. For example, the St. Paul Legislative Code defines the crime of loitering after mid�ight as foilows: "No person shalf loiter about the streets after midnight and iie in wait or conceaimenf_in said City of Saini Paui, or consort wiLn thieves, prostitutes or other questionable characters."� State law prohibits loitering with intent to participate in prostitution 3 Instead of {eaving it up to the ticensee to determine what behavior is lawful and what is not, at the risk of being wrong, the City might want to either delete this sentence or, in the alternative, require that patrons leave the parking fot by a particular time, and if they fail to do so, require that the Licensee cail the police for help in clearing the lot. in addifion, the City might want to clarify the condition concerning admittance after 1:00 a.m. to the "estabfishment." The record reffects that the police are concerned about the security of the patio and the fact that people in the parking lot, wha have not gone through security, can pass objects or drinks to persons on the patio, and vice versa. fn addition, police have quesfioned why the Licensee permits people to go back and forth after 1:00 a.m. from the patio to the bar. {f this condition is intended to mean that anyone who goes onto the patio after 1:00 a.m. may not re-enter, the City should expressly say so to avoid any confusion. K.D.S. 33 Emphasis added. 34 St. Paui Legisfative Code § 280.06. � Minn. Stat. § 609.3243 (2406). 12