08-975co�,��a Fae # O � =, g ,, � -9 p 7 � 5 � .
Green Sheet #,=� � `3 Q
RESOLUTION
Presented by
2 WHEREAS, Moises Cortex d/b/a Casa Vieja (License ID # 20060000159) located at 2176 West 7�'
3 Street in Saint Pau1 received a Notice of Violation dated Apri123, 2008 ; and
4
5 WHEREAS, the Notice alleged violation of the St. Paul Legislative Code § 409.26 for service of an
6 underage person on April 13, 2008.; and
7
8 WHEREAS, applicant denied the allegations and requested a hearing before an Administrative Law
9 Judge; and
10
11 WHEREAS, a hearing was held before an Administrative Law Judge on June 11, 2008, at which
12 each party presented testimony; and
13
14 WHEREAS, a Report was issued on July I5, 2008, in which the Administrative Law 3udge issued
15 Findings of Fact, Conclusions of Law, a Recommendation and a Memorandum; and
16
17 WHEREAS, the ALJ found that there was sufficient proof of the above-stated violations; and
18
19 WHEREAS, the Administrative Law Judge also found that a fine of $500 is an appropriate sancuon
20 under the circumstances; and
21
22
33
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
WHEREAS, at a public hearing on August 6, 2008 the Council of the City of Saint Paul considered
all the evidence contained in the record, the Administrative Law Judge's Findings of Fact, Conclusions of
Law, and Recommendations, and the oral arguments presented before the Council; 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 heazing before the ALJ on June
11, 2008, all the documents and exhibits introduced therein, the Findings of Fact, Conclusions of Law and
Recommendation as referenced above, the arguments from the public hearing 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
FURTHER ItESOLVED, that a fine of $500.00 is imposed against all licenses held by Moises
Cortes dfbJa Casa Vieja; and be it
- ��,�5 -
�
42
44
45 A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and
46 to the license holder.
Requested by Department oE
b�-1-
By: ��'t�.1..`°'�' � r �
Approved by the Office of Financia Services
By:
Appr by City Attomey
By:
Appr ed y Ma oT o Sub � i o C ncil
By:
Adopfion Certified by Counc'1 Secretary
By: /, �
Approve�a Date �' /
By:
- _� -- -- _ _.--
�;,-
-.: . _� =-
-. ---- _ - --
— " Green SMeet 6reen Sheet Green Sheet Green Sheet Green Sfie�Green Sheet �
$1 — �Pt of Safety & Inspecfions � 1&AUG-08
Confad Person & Phone:
Rachel Tiemey
266-8770
Must Be on Council Agenda by (Dal
03SEP-08 � COIR�_�
Doc.Type: RESOLUTION
E�Document Required: Y
Document Contact: Julie Kraus
Contact Phone: 266$776
y
Assign
Number
For
Routing
OMer
ToWI # of Signature Pages _(Clip All Locations for Signature)
Green Sheet NO: 3058220
0 e tofSafe &I ections
i tofS &Ins ecrtons De artmentDirx[or
2 Attorn
3 or's 6ffice Ma or/ASSisiant
4 ,Couucil
5 " Gerk C5 Clerk
Memorializing City Council ac6on taken August 6, 2008, imposing adverse acrion against all licenses held by Moises Cortes d/b/a
Casa Vieja (License ID#20060000159) for the premises located at 2176 West 7th Street in Saint Paul.
Planning Commission
CIB Committee
Civil Service Commission
1. Has this person/firm everworked under a contract for this departmenY?
Ves No
2. Has this person/firm ever been a ciry employee?
Yes No
3. Does this person/firm possess a skill noi normally possessed 6y any
current city employee?
Yes No
Explain all yes answers on separate sheet and attach to green sheet
Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why):
A public hearing was held on August 6, 2008 to discuss the Administrative Law Judge's Findings of Fact, Conclusion of Law and
Recommendation from the administrarive hearing held on June 11, 2008.
AdvanWges If Approved:
dmposirion of the $500.00 matrix penalty.
Disadvantages IfApproved:
None.
Disadvantages If Not Approved:
Trensaction:
Funding Source:
Financial Information:
(Explain)
CosURevenue Budgeted:
Activity Number:
August 26, 2��8 11:07 AM Page 1
6� ��s-
SASNC
2AUL CITY OF SAf}�IT PAUL
� Christopher B. Coieman, Mayor
Af1A
OFPICE OF T1� CITY ATTORNEY
Jahn J, Choi, CityA#famey _
Gvil Division
440 City Nall
75 Wesi KellogqBNd.
SaintPau/, Minnesota 55102
Te/ephorre: 65i 266-8710
Facsimile: 651 298-.5699
Suly I6, 2008
NOTICE OF COUNCIL HEAI2ING
Moises Cortes
Casa Vieja
2176 — 7�' Street West
St. Paul, MN 55116
R�: All licenses held by Moises Cortes d/b/a Casa Vieja for the premises located at 2176 — 7�' Street
West in Saint Paul
License iD #; 20060000159
OAH Docket No. 8-6020-19658-2
Deaz• Mr. Cortes:
Please take notice that a public nearing to discuss the report of the Administrative I,aw Judge concerning
the above-mentianed licenses has been scheduled for Wednesday, August 6, 20Q8, at 5:30 p.m. in the City
Cowicil Chambers, Third Floor, Saint Paul City Ha11 and Ramsey County Courthouse.
You have the opporiunity to file exceptions to the report with the City Clerk at any time during normal
business hoius. You may also present aral or written argu�neirts to the council at the hearing. No new evidence
will be received ox testmony taken at this hearing. The Council will base its decision on the record of the
proceedings before the Administrative Law 7udge and on the arguments made and exceptions filed, but may
depart from the recommendations of such 7udge as permitted by law in the exercise of its judgment and
discretion.
Stncerely,
Rachel Tierney �
Assistant City Attornep
cc: Diane Nordstrom, Office of Adminisnative Hearings, P.O. Box 54524, St. Paul, ARN 55164-0620
Mary Erickson, Council Secretary
Chrisrine Rozek, Deputy Director of DSI
Patricia Martinez, 38 Iowa Avenue West, St. Paul, MN 55107
Kathy Carnif.h, Community Orgaiuzer, HighEand District Council
1978 Ford Pazkway, St. Paul, MN SSI i6-1922
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MINNESOTA OFFICE OF AI?MINISTRATIVE HEARINGS
600 North Robert Street
Saint PauI, Minnesota 55101
Mai2ingAddress: Voice: (65A) 361-9900
P.O. Box 64620 - � TTY: (651) 361-7878
St Paul, Minnesofa 55164-0620 Fax: (651) 361-7936
July 15 2008 ����1���
Shari Moore
Gify Glerk
310 City Hall
15 West Kellogg Blvd.
St. Paul, MN 55102
�UC i fi 2Q�8
�f°�� �;�n ;�f�Y
Re: /n the Matfer of All Licenses Held by Moises Cortes d/bla Casa
Vieja; OAH Docket No. 8-6020-19658-2
Dear Ms. Ivloore:
Enclosed herewith and served upon you by mail is the Administrative Law
Judge's Findings of Fact, Gonclusions, and Recommendation in the above-entitled
matter. Also enc{osed is the official record, with the excepfion of the digital recording of
the hearing. If you woufd like a copy of the digital recording, please contact our o�ce in
writing or tefephone 651-361-7840. Our fife in this matter is now being cfosed.
Sincerely,
�'LC�� ���rtar/Cl
�yro�
ER1C L. LIPMAN
Administrative Law Judge
Telephone: (651) 361-7842
ELL:mo
Encl.
cc: � - e�
Moises Cortes
L'
d0 �7�
@'d��E� i..ci:3•G: � • "a
STATE OF MiNNESOTA
OFFICE OF ADMINISTRAT{VE HEAR{NGS
FOR THE CITY OF SAINT PAUL
fn the Mafter of AN Licenses Hefd by Moises FfNDiNGS OF FACT,
Cortes d/b/a Casa �eja CONCWSlONS AND
RECOMMENDATION
This matter came on for hearing on June 11, 2008, before Administrative Law
Judge Eric L. Lipman, in Room 220 of the City Hall-Courthouse Building, 15 West
Kellogg Boulevard, St. Paul, MN 55102.
Rache{ Tierney, Assistant City Attomey, 40� City Half, 15 West Keflogg
Boulevard, St. Paul, MN 55102, appeared for the City of St. Pau!'s Department of
Safety and Inspections (DSI).
Moises Cortes, 2176 — 7 Street West, St. Paul, MN 551'16, appeared on his
own beha{f and without counsel (Licensee).
STATEMENT OF THE ISSUES
1. On April 12, 2008, did the Licensee violate the St. Paul Legislative Code
by allowing an underage man to consume alcohol on the premises?
2. lf so, is a$500.00 fine the appropriate licensing sancfion?
�3ased upon the evidence �n the hearing reca�d; �hs Administr2#ive LaIN Jud�e
makes the following:
FINDINGS OF FACT
1. Moises Cortes is the owner and lieense holder of a restaurant named
Casa �eja that is located at 2176 — 7 Street West in St. Paul, Minnesofa.
2. Since Apsi{ 12, 2006, Mr. Cortes has heid the fol{owing licenses: An on-
sale liquor license fo� 181-290 seats; an on-sale liquor license permitting liquor sales on
V(�����
3: On April 12, 2008, Casa �eja was celebrating its Second Anniversary of
operations at the location on 7�' Stseet Z
4. Af approximately 1 a.m. on April 13, 2008, Sf. Paul Police officers Erika
Hatle and Stacy Sanborn responded to a call from security officers on duty af the
Licensee's estabtishment 3
5. Upon their arrival, police officers were informed by security officers fhaf an
unruly patron, one Amberto Nunez-Vasquez, had started fighting wifh anofher patron,
and then with security personnel, until he was subdued. Offcers Hatle and Sanborn
recorded in their report that Nunez-Vasquez appeared intoxicated, had red eyes and
was unstab(e when he walked 4
6. At the evidentiary hearing, security officer Martin Basurto testified that
Nunez-Vasquez appeared to be under the influence of alcohol when he had arrived at
Casa Vieja earlier in the evening, had been a problem patron in the past and was under
close scrutiny by security personnel throughout his visit to the establishment
7. Mr. Nunez-Vasquez and his companions left Casa Vieja, and shortly
thereafter Nunez-Vasquez began fighting with another man on the sidewalk adjacent to
fhe restaurant. When security officer Sean Murphy intervened to break up the fight,
Nunez-Vasquez threatened Murphy with a sharp object — an object that Murphy
believed to be broken glass, wrapped with paper at the end that Nunez-Vasquez was
holding. Coming to his co-workePs aid, Mr. Basurto withdrew a Taser device, shot the
electric probes into Nunez-Vasquez and deployed a shock that subdued the patron.
Basurto then handcuffed Nunez-Vasquez untiV pofice arrived s
8. It is Casa Veija's practice to issue and affix colored wristbands to
customers who are 21 years of age or older, as a signal to bar and wait staff that the
banded patron is ofi iegal age to purchase alcohol �
9. Mr. Nunez-Vasquez was wearing a colored wrist band the evening of April
_ _`__ , �2; 2008.�..�,<.., y ,._,. . ., , , . ., . : . . . . , . . ,. .
� Exhibits 1-1 and 1-2.
Z Testimony of Martin Basurto.
3 Ex. 2; Tesfimony of Stacy Sanbom.
4 �C�.
5 Test of M. Basurto.
6 Ex. 2; Tesf. of M. Basurto.
� Id
$ Id.
2
6� �?S
- on�y id found on Mr. Nunez-Vasquez's person was a Mexican Identification
Card stating thaf his dafe of b'srth was February 9, 1988. On ApriV 12, 2008, Mr. Nunez-
Vasquez was 20 years of age — under the legal age to purchase alcohol in Minnesofa 9
11. Casa Vieja employees confirmed for O�cer Sanbom that Mr. Nunez-
Vasquez had been consuming alcohol on the Licensee's premises.
12. IVeither Mr. Nunez Vasquez, nor the employees of Casa Ueja, expressed
an interest in filing charges as a resuit of the incident that evening."
13. The Licensee has had a good record wifh respect to liquor compliance
checks during its operating history; although report a report from its own regulatory
compliance consultant suggests that the restaurant sti(! faces cha4lenges in ensuring
that employees check patrons for proper identification.
14. The Licensee requested a hearing on May 1 ZOOH. On May 19, 2008,
the City issued a Notice of Administrative Hearing."
Based upon these Findings of Fact, the Administrative Law Judge makes the
following:
CONCLUSIONS
1. The Administrative Law Judge and the St. Paul City Counci! have authority
to hear this matter pursuant to St. Paul Legislative Code § 310.d5(c).
2. The hearing in this matter was conducfed in accordance with the
applicable portions of the procedures set forth in section 310.05 of the St. Paul
Legislative Code.
3. The City gave_ proper notice ofi the hearing in this matter and has fulfilied
alf procedurai requirements of rule or Iaw.
4. The City has the burden of proving by a preponderance of the evidence
inat adverse action is warranted against the iicens�s hntd by Moises Cortes d/bfa Ca�a
Vieja.
9 Test of S. Sanbom; Minn. Stat. § 340A.503 (1)(a)(2) (2006).
10 Test. of S. Sanborn.
"" Ex. 2; Tesf. of S. Sanborn.
' Compare, F�c. 1 with Ex. A.
� Ex 4
t4 Notice o(Adminisfrafive Hearing, OAH Docket No. 8-6020-196583 (May 19, 2008).
3
68=1��
Ticenses or permits, licensee or applicant for a license, on the basis fhat fhe licensee or
applicant. has failed fo comply with any condi6on set forth in fhe license or has violated
any of fhe provisions of any statute, ordinance or regulation related fo the licensed
activity.
6. Tfie St. Paul Legislative Code prohibits any licensee, or agent or
empfoyee thereof, from serving or dispensing any intoxicafing liquor fo any minor; "nor
sfia{I such licensee, agent or employee permit any minor to be fumished with or fo
consume any such liquor on the licensed premises; nor shall such licensee, agent or
emp{oyee permit any minor to be delivered any such liquor.°�
7. For purposes of Chapter 409 of the St. Paul Legislative Code, a°mino�' is
defined as "any person under the age of twenty-one (21) years."
8. Licensees are responsibfe for ensuring that any individual �under the age
of 21, other than an employee, who enters the esta6lishmenf is present only for the
purpose of consuming a meat or aftending a social function open to the public hefd in a
portion of the establishment where liquor is not sold, consumed, served or dispiayed.�
9. The City demonstrated by a preponderance of the evidence that in the late
hours of April 12, 2008, the Licensee permitted a 20 year-old man to consume alcohol
on the premises in violation of § 409.08 (2)(a) of the St. Paul Legislative Code.
10. Section 409.26 of the St. Paul Legislative Code, applicable to liquor
licenses, contains a separate penaliy matrix that sets out presumptive penalties for
specific offenses in connection with the sale of intoxicating liquor, including sale of
alcoholic beverages to underage persons. The penalties in the matrix are presumed
to be appropriate for every case; however, the Council may deviate from these penalties
in cases where the Council determines that there are substantial and compelling
reasons to do so. When deviating from these sfandards, the Council is obliged to
provide written reasons that specify why fhe non-matrix penalty was more appropriate?
11. Pursuant to § 409.26 of the St. Paul Legislative Code, this would be the
Licensee's first appearance within 18 months for the enumerated violations.
15 See, St Paul Legislative Code § 310.06 (b)(5) and (b)(6)(a); see also St. Paul Leg. Code § 409.12
(any license or permit under this chapter may be suspended for up to 6� 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 Jicense or permit holder has failed to compiy with an applicable statute, rule or ordinance relating to
alcoholic beverages).
' !d. § 409.08 (2)(a).
" Id. §A09.08 (2}
7e !d. § 409.08 (21}.
19 St Paul Legislafive Code § 40926 (b).
20 /d. § 40926 (a).
�
-- ---Q�����
appearance before the Council, is a$1,�Q0.0� fine?�
an underage person, on a first
Based uQon these Conclusions, and for the reasons explained in the
Memorandum attached hereto, fhe Administrative Law Judge makes the following:
RECOMMENDATION
It is respectfully recommended that fhe St. Paul City Councii take adverse action
against the ficenses held Moises Cortes d!b/a Casa Vieja.
The proposed $50d penalty referenced by the Licensing OSficer in the May 19,
2008 Notice of Violation and the Notice of Administrative Hearing, is a reasonabfe
���orse �crth�is vioiation af Sa'srat- Faui -Leg'tsiat�vP :�od�.§ 4�J9 �f> 4�). �3�:H
Dated: Jufy 15, 2008
Reported: Digitally recorded,
No transcript prepared
��
,�..,'=�
ERIC L. LIPMAN
Administrative Law Judge
�/R": ,--- .
�-"f
Z ' Compare, Ex. 1-2 with St Pauf Legislative Code § 409.26 (b).
5
68 �� 1 ��_
This report is a recommendation, not a finai decision. The St. Paul Cifij Council
will make the final decision after reviewing the record and may adopt, reject or modify
fhe Findings of Fact, Conclusions and Recommendation confained herein. Pursuant to
Section 310.05 of the St. Paul Legislative Code, the City CounciPs finai decision shall
not be made until this Report has been made availabie to the parties fo the proceeding
and the Licensee has been provided an opportunity fo present oral or written arguments
alleging error on the part of the Administrative Law Judge in the application of the law or
the interpretafion of the facts and an opportunity to present argument relating to any
recommended adverse action. The Licensee and any interested parties should contact
Shari Moore, Saint Paul City Clerk, 290 City Hall, 15 West Kefiogg Boulevard, Sf. Paul,
MN 55102, to ascertain the procedure for presenting argument.
o�=���
,,�,,; .._.
Mr. Cortes' key claim is that his employee, Mr. Murphy, was presented with a
va{id fvlinnesota Idenffication Card by Mr. Nunez-Vasquez on April 12, 2008, and that
this identification card showed Mr. Nunez-Vasquez fo be of a lega! drinking age.
There are, however, several difficulties with that claim: Mr. Murphy did not testify
af the evidentiary hearing as to what documents he reviewed; nor was he available for
cross-examination on this point; and, with one exception, there was no other evidence
of the existence or contenfs of the identification Card that was described. In this recotd,
the onfy evidence that such an Identification Card existed is Mr. Basurto's recollection of
what Mr. Mutphy said on April 13, 2008 about the documents thaf Murphy had
reviewed. This sfatement is the quintessential example of hearsay — a statement that is
made outside of the formality of the hearing room for the truth of the mafter that is
assert2d. _
While Administrative Law Judges are permitted to receive, and rely upon, some
hearsay statements in contested case proceedings, these statements must be the kind
that prudent persons are accustomed to rely upon in fhe conduct of their serious
affairs Z In the view of the Administrative Law Judge, a prudent person would rtot refy
upon the unrecorded, potentially self-serving statement of another whom he had never
met.
Mr. Cortes has not established that the screening techniques in place at Casa
Vieja on April 12, and the early morning hours of April 13, 2008, were sufficient to
prevent the sale of alcohol to minors.
E. L. L.
� Minn. R. 1400.7300 (1) (200�.