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08-827Council File # 6g' g a'� Green Sheet # 3 n, j �'J j) /[ RESOLUTION 91NLT EAUL, MlNI�tESO-T-A --�� -- Presented by 1 WHEREAS, adverse action was filed against the CigazettelTobacco license held by The Quality 2 Food & Fuel Mazket Place, Inc., d/b/a Super USA Matket (License ID#20070000786) for the premises 3 located at 976 - 7`�' Street East in Saint Paul on May 29, 2008 for the sale of cigarettes to an underage 4 person in violation of Minn. Stat. §609.685 and Saint Paul Legislative Code §324.1 l; and 5 6 WHEREAS, Super USA Mazket denied the allegations and requested a hearing before an 7 Administrative Law Judge; and 9 WHEREAS, Administrative Law Judge Raymond R. Krause held a hearing on July 9, 2008, where 10 he heazd evidence of the violation; and 11 12 WHEREAS, the Department of Safety and Inspections appeared and presented wimesses, exhibits 13 and arguments in support of the allegation; and 14 15 WHEREAS, Super USA Market also presented witnesses and arguments in defense of the 16 allegations; and 17 18 WHEREAS, Judge Krause issued a decision on July 16, 2008 finding that the Department of Safety 19 and Inspections had not proven by preponderance of the evidence that the licensee sold cigarettes to a 20 minor on May 8, 2008; now therefore be it 21 22 RESOLVED, that the Findings of Fact, Conclusions of Law and Recommendation of the 23 Administrative Law Judge are hereby adopted and the adverse action filed on May 29, 2008, is hereby 24 dismissed. 25 26 A copy of this resolution, as adopted sha11 be sent by first ciass mail to the Administrative Law 27 Judge and to the license holder. Requested by Depariment o£ D �1.. By: 11 i4�A�w �' ' �L� Form ved by City Attorney BY: t T�.► Adopfion Certified by Co ncil Secretary Form A p ved or for Sub ' sion Council By � By ' � Appro y r: Da � 0 By: � Green Sheet Green Sheet 6reen Sheet Green Sheet Green Sheet Green Sheet � 08-8�7 ConWct Person 8 Phone: Rachel Tiemey 266-8710 musc ce on 06-AUG-08 1&JUL-08 � Ass�n NUm6er Order 0 e L of Safe & In ections 1 pt of Safety & Inspedions Depar�ment Director 2 ' Atlorn 3 or's Office Ma or/ASSis�nt 4 ouncil 5 ' Clerk Ci Clerk Doc. Type: RESOLUTION E-Dxument Required: Y DocumentConWct: JuiieKraus Contact Phone: 266�776 Total # of Signature Pages _(Clip Ail Locations for Signature) Approval of the attached resolution recommending that no further adverse acfion be taken against the Cigarette/Tobacco license held by The Quality Food & Fuel Mazket Place, Inc., d/b/a Super USA Mazket (License ID#20070000786) for the premises located at 976 - 7th S4eet East in Saint Paul. _ � idafions: Approve (A) or IZ Planning Commission CIB Committee Civil Service Commission 1. Has this persoNfirm ever worked untler a contract for this department? Yes No 2. Has lhis persoNfirm ever been a city employee? Yes No 3. Does this person/firm possess a skill not normally possessed by any current city employee? Yes No Explain all yes answers on separete sheet and attach to green sheet Initiating Problem, Issues, Opportunity (Who, Wltat, When, Where, Why): An administrafive hearing was held on July 9, 2008. The Administrarive Law Judge's report recommended no adverse acflon be taken and DSI's attomey did not file exceptions. The licensee was notified by mail so a public hearing was not scheduled. Advantages If Approved: Matter can be closed without a public hearing. DisadvantageslfApproved: None. Disadvantages If Not Approved: TranSaction: Funding Source: Financial Information: (Explain) CosflRevenue Budgeted: Activity Number: July 18, 2008 2:37 PM Page 1 ti �F AE � �: 2, .O.af S: F: .�..;�.�' � :3" :: . W:°;<._—" ._:— Z - a�- r h�:� z . _ o I ` �s: . — - -- :o�� !�_--o�' . ,fjZ%1$SS+dy' .. , ♦ ♦ / MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 600 North Robert Street Saint Paul, Minnesota 55101 Mailing Address: Voice: (651) 361-7900 r.o. sox �s2o TTY: (651) 361-7878 St. Paul, Minnesotr 55164-067A Fa�c: (Gil) 361-7936 July 16, 2008 �������� Shari Moore St. Paul City Clerk 290 City Hall 15 W Keliogg Boulevard St. Paul, MN 55102 1 tl; ��� �:��i �� Re: In the Mafter of the Cigarette/Tobacco License Held By Quality Food & Fuel Market Place, lnc. OAH No. 2-6020-19725-3 Dear Ms. Iv�oore: Enclosed herewith and served upon you by mail is the Administrative Law Judge's Findings of Fact, Conclusions and Recommendation in the above-entitled matter. Also enclosed is the o�cial record, with the exception of the recording of the hearing. If you would like a copy of that recording, please contact our office in writing or by telephone at 651-361-7906. Our file in this matter is now closed. Sincerely, �� � �_ RAYMOND R. KRAUSE Chief Administrative Law Judge Telephone: (651) 361-7900 RRK:dsc Enclosure cc: Rachel Tierney Khaled Aloul , i: .. OAH No. 2-6020-19725-3 _ _ _ _ �TA�€ L?€�i�IN€SB�A - - — -- --- - - OFF4CE OF ADM{N{STRATIVE HEAR4NGS FOR THE CITY OF ST. PAUL In the Matter of the Cigarette/Tobacco License Held By Quality Food & Fuel Market Place, Inc. FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION This matter came on for hearing before Administrative Law Judge Raymond R. Krause (ALJ) on July 9, 2008, at the Ramsey County Courthouse, 15 West Kellogg Boulevard, St. Paul, Minnesota. The hearing was held pursuant to a Notice of Administrative Hearing dated June 17, 2008. Rachel Tierney, Assistant City Attorney, appeared on behalf of the City of St. Paul (the City). Khaled Aloul, owner of the Quality Food & Fuel Market Place, Inc., appeared without counsef. Officer ChrisYopher Byrne, Officer Todd �eroni, kiabib Stamboulieh, Anan Barbarawi, and Christine Rozek also were present as witnesses. Exhibits 1-7 were accepted into evidence. The O�ce of Administrative Hearings record closed at the end of the hearing. Prior to the start of the hearing, Mr. Aloul (Aloul or the Licensee) requested a continuance to obtain counsel. The Licensee had been notified of the violation and the penalty on May 29, 2008. The Licensee did not contact the City or the ALJ to request a continuance nor had he yet retained any counsel prior to the day of the hearing. Six witnesses had appeared for the hearing. The ALJ denied the request for a continuance. STATEMENT OF THE iSSUES 1. Did the City prove by a preponderance of the evidence that cigarettes were sold fo minors on May 8, 2008 by employees of the Quality Food & Fuel Market Place, Inc.? The ALd finds that the City did not. Based on the evidence in the hearing record, the Administrative Law Judge makes the following: od -8�-� FINDINGS OF FACT _ ____ _ _ __ _ __ -- 1- Mr._ KhaLedA(ou1�s the_o�erneF_of Quality Food-8�Fue1-{�t}arket �lace,--{nc.— ------ dlbla Supes USA Mar4cet (the Store). The Store is at 976 7"' Street East in the City of St. Paul. The Store seils cigarettes, pop, and food items among otherthings.' 2. Prior to Mr. A{ou4's purchase of the Store, it had a reputation for il4egal activity and frequent attention from police? 3. The Store was ficensed to sefi cigarettes by the St. Paul Department of Safety and Inspections on or about April, 20, 2007. 4. On July 26, 2007, the Store passed a cigarette compliance check 4 5. On February 19, 2008, the Store failed an undercover cigarette compliance check. The clerk, at that time, was in training, did ask for identification, but became confused by the numbers and inadvertently sold cigarettes to a 15-year-old undercover decop. 6. The clerk and the Store were fined and the clerk was fired from employment with the Store � The Store paid its fine $ 7. O�cers Byrne and Feroni are police officers with the St. Paul Police Department. They are patro! officers assigned to the Eastern District and are on the afternoon shift. 8. On the afternoo� of May 8, 2008, the officers were patroiling near the Store. They paid particular attention to the Store because there had been previous reports of attempted robberies and drug sales near there, and other disturbances such as smashed glass doors at the Store itself. 9. Their attention was drawn to two white males exiting the Store. The Store is in a primarily African-American neighborhood so the officers felt that a drug deal might be in progress. They saw the iwo males enter a car and drive out of the parking lot. They noticed something hanging from the rear view mirror and, on that pretext, stopped the vehicle. They asked for identification from the occupants of the car and determined that they both were 16 years old. The o�cers interviewed the two separately and asked them what they were doing in this neighborhood since their ' Testimony o4 Kha{ed A{oul. 2 Test. of K. Aloul and Officers Christopher Byrne and Todd Feroni. 3 Testimony of Christine Rozek. ° Ex. 1-1, test. of C. Rozek and K. Aloul. 5 /d. 6 Testimony of Anan Barbarawi. � Id. a Ex. 1-1, Ex. 3, test. of C. Rozek and K. Aloul. 9 Test. of C. Byrne and T. Feroni. io Id. � 68- 8�-7 _ identification showed that they lived a distance away. -According to_the_officets — minors said they had come to the Store �o buy cigarettes. They offered the statemenY — --��{�Stor�v�as-4c�ewrtrasapiaee�tf9�trioteheekidentificatiasrfar cigarettes. The officers found a pack of unopened Camel cigarettes in a bag in the car. There were ofher items in the bag. The other items did not appear fo have been opened either. One of the minors said he purchased the cigarettes from "a tall black man with glasses.° O�cer Byme confiscated the cigareftes. The minors were written citations for possession of cigarettes by a minor, the parents were calied and the minors released.�� 10. The o�cers took the cigarettes back to the station and submitted them to Property Locker # 5. 11. Neither officer saw anyone actualiy purchase cigarettes, 12. Neither o�cer went into the Store to confirm that the minors had purchased cigarettes there.� 13. Neither the officers nor anyone from the Department of Safety and Inspections interviewed anyone from the Store.� 14. The officers did not see any receipt that tied the cigarettes to the Store. The officers did not notice whether the bag in which the cigarettes were found said Super USA on it.� 15. Neither the officers nor anyone from the Department of Safety and lnspections checked the revenue stamp on the bottom of the pack of cigarsttes to determine whether the cigarettes were purchased at the Store.�' 16. Christine Rozek is the Deputy Director of the St. Paul Department of Safety and inspections. As such, she is involved in most, if not all, adverse licensing actions by the City. It is the practice of the Deputy Director to determine from police reports whether she believes a license violation has occurred. If she believes a violation has been committed, she turns the matter over to the Office of the City Attorney for action. It is not necessarily her practice to further investigate beyond the police report.� " Id., Ex.4-6. 72 Test. of C. Byrne and T. Feroni, Ex. 4-6. 73 Test. of C. Byrne and T. Feroni. ia ld. ' Test. of C. Byrne, T. Feroni and C. Rozek. 76 Test. of C. Byme and T. Feroni. "/d., and test, of C. Rozek. 18 Test. of C. Rozek. G? I � �i t 17. ln this case, Ms. Rozek did not conduct an independent investigation,_but_ _ refied entirely on the potice report. — - - - — - - -- -- - 18. Ms. Rozek tumed this matter over to the Office of the City Attomey with a recommended fine of $400. This fine is consistent with the penalty matrix contained in St. Paul City Code Sections 310.05 and 324.11? 19. Since its purchase by Mr. Aloul, the Store has been vandalized repeatedly. A glass door has been smashed several times and a food stamp machine has been broken. Mr. Aloul believes that this vandalism has been done by minors who are angry because he will not sell cigarettes to them?� 20. Habib Stamboulieh is an employee of the Store. He is "a tall black man." His job is to watch for possible shoplifting, to require disruptive customers to leave, to cail parents of underage customers who attempt to buy cigarettes and general security. He does not seil any products and does not know how to operate the cash register. He has reading glasses but does not wear them in the Store because his job does not require close reading 22 21. Mr. Stamboulieh was present and working on May 8, 2008, but does not remember the two minors who allegedly purchased cigarettes on May 8, 2008. 22. Mr. Anan Barbarawi is a sales clerk at the Store. He is neither tall nor is fie "a . . . biack man." 23. Mr. Barbarawi was working as the on{y clerk on May 8, 2008. His position at the register is behind a glassed-in cubicle. He does not remember specifically #he two minors who allegedly bought cigarettes at fhe Store 2 Many underage persons come in every day and attempt to purchase cigarettes illegaily. Mr. Barbarawi is aware that Mr. Aloul enforces a strict "no sales to minors" policy. He is aware that if he were to sell to a minor, he would receive a fine and probably be fired as was the trainee clerk was in March of 2008. He denies selling cigarettes to any minors 26 24. On May 29, 2008, the City sent a Notice of Violation to Mr. AIou1. 25, On June 2, 2008, Mr. Aloul timely appealed and asked for an administrative hearing. ,s !d. xo /d. Z ' Test. of K. Aloul. � Test, of Habib Stamboulieh. zs /d. 24_ Test. of K. Aloul and Anan Barbarawi. zs � 28 Test. of A. Barbarawi. Z ' Ex. 5. 28 Ex. 6. 0 Og-S�'7 - 26. On_ June 17, 2008, the City se�t_ Mr. Alo.u( a_Notice_of AdminisfrativE_ ___ Hearing, setting the hearing date for July 9, 2008 2 - -- __--- - - -- - - - - Based on fhese Findings of Fact, the Administrative Law Judge makes the following: CONCLUStONS 1. This matter is properly before the City and the ALJ pursuant to St. Paui Legislative Code §§ 310.05, 310.06 and 324.11. 2. The City compiied with all requirements of regulation and gave proper and timely notice to the Licensee.- age. 3. The Vegal age for possession or purchase of cigarettes is 18 years of 4. The City has not proven by a preponderance of the evidence that the Licensee or any employee of Licensee sold cigarettes to a minor on May 8, 2008. Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following: RECOMMENDATION Based upon these Conclusions, the Administrative Law Judge respectFully recommends that: the St. Paul City Council not impose a fine or take other adverse action against the license. Dated: July 16, 2008 � � - RAYMO D R. KRAUSE Administrative Law Judge Reported: Digitally Recorded NOTICE This report is a recommendation, not a finai decision. 7he St. Paul City Council wili make the final decision after reviewing the record and may adopt, reject or modify 29 Ex. 7. 3o Minn. Stat. § 609.685. 5 / � � � the Findings ot Faci, �onclusions and Recommendafion_contained-heceici�P�csuarat-to-- --- = Secfion 31dA5 of the St. Paul Legislative Code, the Cify CounciPs finai decision shall _ -- �k�r�adeuntiF#tisf2eporttras ' 'rt� and the Licensee has been provided an opportunity to present orat or written arguments alieging error on fhe part of the Administrative Law Judge in the application of the law or the interpretation of fhe facts and an opporlunity to present argument relating to any recommended adverse action_ The Licensee and any interested parties should contact Shari Moore, Sairrt Pau1 City Clerk, 290 City Hall, 15 West Kettagg Boulevard, St. Paul, MN 55102, to ascertain the procedure for presenting argument. MEMORANDUM Qua!'sty Faod &�uet, d/b/a Supes USA ss a convenience ma�lcet in a"rough" neighborhood of S#. Paul. Under previous ownership, if had a reputation fior drug deals in the parking lot and areas surrounding it as well as other troubles that gave rise to frequerrt visits by police. Mr. Alaul, the owner for the last two years, claims that he has tried to clean up that image and strictiy enforce the rules against selling cigarettes to minors. He aiso claims that minors who are turned away sometimes become angry and cause trouble and engage in property damage to his store as a result. Although normally he would have only one clerk working during a shift, he has to employ a second person for secunty, to wa#ch for theft, and to get troublemakers out of the store. The Licensee is charged with selling cigarettes to minors. The only evidence introduced that ties the corrfiscated cigarettes to the Super USA are the secondhand stafements of the minors tha# they bought the cigarettes there_ There is no receipt, no identification of the bag as being from Super USA, no aftempt to show that the cigarettes were sold by Super USA via the revenue stamp and no independent witness to the sale. The o�cers' recounting of their conversafion with the minors must be given deference, however, there is no way to determine whether the s#atemen#s made by the minors is truthful. They were not present at the hearing to testify or be cross-examined. On fhe date in question, Mr. Barbarawi and Mr. Stamboulieh were working at the store. Mr. Barbarawi is the sales cierk and is enclosed by a glass cubicle for protection. Mr. Stamboulieh is emptoyed for the security rote. The minoes, who were stopped by police, said they bought cigarettes at the store from a"tall black man with glasses:' The only tall black man employed at the store is Mr. Stamboulieh, who does not seli anything, qnnot operate fhe cash register and does not wear glasses on the job. Their statements, while consisterrt with each other, do nat square with the fact that the oNy "tal( black man with glasses" ccruld not have sald them cigarettes and does not wear glasses on the job. There are many conceivable reasons why two nervous teenagers wouid make such statements under these circumstances. The fact that they made the statements is evidence but is in no way canclusivs. Their hearsay statements were accepted as evidence but cannot be given so much weight as to prove the entire case for fhe City. ,� 08-8�� On the other hand,_ Mr. Aloul and his employees t_estified t_o_the strict�olicy of not______ __ __ __ — _-_- selting ta minors and the ac#ual enforcement of #hat poiicy by firing the previous clerk -- —uuho- u�rsfa�rPC##-it. -�#er�-is alsII-##ae- di�ect #estirt�o�, �ndef t3atl� �t#e�ferac�#at k�e-did --- - not sell cigarettes to minors at any time. The unsubstantiated, hearsay, and flawed statements of the minors, when weighed against the direct and uncontrovetted testimony, under oath, of the Super USA employees and owner does not meet the Cit�s burden of proof. There is not one piece of eyewitness or documentary evidence to tie an unopened pack of Camels in a car to Super USA. There is simply not enough evidence to prove anything more than two minors had a pack of cigarettes in their possession. This is a11 the pofice felt they needed to establish and it is what they did establish. It was not their responsibility, as they saw it, to tie the cigarettes to the Super USA or any other store and they did not. G� 7