09-1079Council File # ��l ���
Green Sheet #� �
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Presented by
RESOLUTION
SAINT PAUL, MINNESOTA
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1 WHEREAS, Speedway Superamerica, LLC d/b/a Speedway Superamerica Store (License ID#
2 19980001565) (hereinafter "licensee") located at 390 Mazyland Avenue East in Saint Paul received an
3 Notice of Violation dated June 1, 2009; and
4
5 WHEREAS, the Notice alleged violation on April 10 and May 14, 2009 of the food code alleging
6 that licensee failed to maintain potentially hazazdous food at 140 degrees ; and
WHEREAS, licensee denied the allegation and requested a heazing before an Administrative Law
Judge; and
10
11 WHEREAS, a heazing was held before an Administrative Law 7udge on July 3Q 2009, at which
12 each party presented testimony; and
13
14 WHEREAS, the Administrative Law Judge issued a Report on August 25, 2009, in which the
15 Administrative Law Judge issued Findings of Fact, Conclusions of Law, a Recommendation and a
16 Memorandum; and
17
1 S VJHEREAS, tbe Administrative Law Judge found that there was suff cient proof thaY ]icensee had
19 committed the violation; and
20
21 WHEREAS, the Administrative Law Judge also found that a$200.00 fine is an appropriate
22 sanction unc3er the circumstances; and
23
24 WHEREAS, the licensee was given notice that a public hearing would be held before the City
25 Council on September 16, 2009 at which time licensee would have an opportunity to present oral or written
26 argument to the Councii; and
27
28 WHEREAS, licensee did not file any exceptions to the report of the Administrative Law Judge; and
29
30 WHEREAS, at a pubIic heazing on September 16, 2009, the Council of the City of Saint Paul
31 considered all the evidence contained in the record, the Administrative Law Judge's Findings of Fact,
32
33
34
35
36
37
38
39
40
41
42
Conclusions of Law, and Recommendations and the 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 hearing before the
Administrative Law Judge, all the documents and exhibits introduced therein, the Findings of Fact,
Conclusions of Law and Recommendation as referenced above, and the deliberations of the council in
open session of that heazing; and be it
FTJRTHER RESOLVED, that a fine of $200.00 is imposed against ail licenses held by Speedway
Superamerica, LLC d/b/a Speedway 3uperamerica Store (License ID# 19980001565); and be it
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43 FCJRTHER RFSOLVED that the $200.00 fine be paid within 30 days of the passage and approval
44 of this resolution; and be it
45
46 FTNALLY RESOLVED, that the Findings of Fact, Conclusions of I.aw, and Recommendation of
47 the Administrative Law Judge in this matter aze hereby adopted as the Findings and Conclusions of the
48 City Council in this matter.
49
50 A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and
51 to the license holder.
52
Requested by Depazcment of:
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Approved b,v the Office of Financial Services
Adopted by CounciL• Date � p�'�' �(� ��
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By:
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By:
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By� J �,�.t�X ��:�,�
Approved �y or r Sabmis 'o to ncil
By:
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Depar4nentlOffice/Council: ! Date Initiated: � �
I SI -Dept.ofSafety8lnspections � 23SEP2009 Green Sheet NO: 3081476
I '
' � i Departrnent SentToPerson InitiaUDate �
j I Contad Person 8 Phone: � � 0 eot of Safety & Insaectioos I ��i
l Rachel Tiemey
266-8710 I 1 e tofSafe & 'ous DeoertmentD'uecror i
Assign � 2 ' Attorn �� �
�I Must Be on Coune Agenda by (D ) Number
� 07-OCT-09 ��p���� �. I For 3 a or•a Of6ce Ma or/Assistant
�d•'-� ""� Routing 4 ounc� �— -�
i Doa Type: RESOLUTION Order 5 ' Clerk Ci C7erk
E-Document Required: Y
Document ContaM: Julie Kraus
Contad Phone: 266-8776
Total # of Signature Pages _(qip NI Locations for Signature)
Action RequesMd:
Memorializing City Council Ackon taken September 16, 2009, imposing adverse acfion against all licenses held by Speedway
Superamerica, LLC d/b/a Speedway Superamerica Store (License ID#19980001565) for the premises located at 390 Maryland
Avenue East in Saint Paul.
Recommendations: Approve (A) or Reject (R): Personal Service Contracts Mus! Answer the Following Questions:
Planning Commission t. Has lhis person/firtn everworked under a contrad for ihis department?
i CIB Committee Yes No
' Civil Service Commission 2. Has this person/firm ever been a ciry employee?
Yes No
; 3. Does this personffirm possess a skill not nortnally possessed by any
j current city 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 public hearing was held on September 16, 2009, to discuss the Administrarive Law Judge's Findings of Fact, Conclusions of Law
and Recommendarion from an administrative hearing held on Juty 30, 2009.
Advantages If Approved:
Memorialization of Council action taken as a resuk of the public hearing.
�
Disadvantages If Approved:
I
Disadvantages If Not Approved: �
Total Amount of Cast/Revenue Budgeied:
Transaction:
Funding Source: Activity Number:
� Financiallnformation:
(Explain)
September 23, 2009 5:15 PM Page 1
9 �/�
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PAUL C1TY OF SAINT PAUL
� ChnstopBerB. Coleman, Mayor
IIAAA
August 28, 2009
OFFICE OF Tf� CITY ATTORNEY �— l � 1 �
John J. Ghai, City Attamey
Civil Divkion
400 City Hall Telephone: 651266-8710
15 West Kellogg Blvd. Facsimile: 651298-5679
Saint Paul, Minnesota 55102
NOTICE OF COUNCIL HEARING
Chris Hawkins
Speedway Superamerica Store #4038
390 Maryland Avenue East
St. Paul, MN 55101
RE: All licenses held by Speedway Superamerica, LLC d/b/a Speedway Superamerica Store for the premises
located at 390 Maryland Avenue East in Saint Paul
License ID #19980001565
OAH Docket No.: 11-6020-20611-3
Dear Mr. Hawkins:
Please take notice that a public hearing to discuss the report of the Administra6ve Law Judge concerning the
above-menrioned licenses has been scheduled for Wednesday, September 16, 2009, at 5:30 p.m. in the City Council
Chambers, Third Floor, Saint Paul City Hal] and Ramsey Counry Courthouse.
You have the opportunity to file exceptions to the report with the City Clerk at any ume during normal business
hours. You may also present oral or written arguments 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
Administrarive Law Judge and on the arguments made and exceptions filed, but may depart from the recommendauons of
such judge as pernutted by law in the exercise of its judgment and discretion.
Sincerely,
C- l�'�",a"".a'�, � � —
Rachel Tierney ��
Assistant City Attorney
cc: Diane Nordstrom, Office of Administrarive Hearings, P.O. Box 64620, St. Paul, MN 55164-0620
Christine Rozek, Deputy Director of DSI
yXlary Erickson, Council Secretary
Bill Gunther, Environmental Health Manager
Dave Weisberg, Environmental Health Inspector
Ms. Leslie McMurray, Exec, Director, Payne Phalen District 5 Planning Council
506 Kenny Road, Ste. 130, St. Paul, MN 55130
Affirmative Action Equal Opportunity Employer
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MINNESOTA OFFICE OF ADMINISTRATNE HEARINGS
600 North Robert Street
Saint Paul, Minnesota 55101
Mailing Address: Voice: (651) 361-7900
P.O. Box 64620
St. Paul, Minnesota 55161-0620 T�' (�1) 361-7875
August 25 , 2009 Fax (651) 361-7936
Rafael A. Viscasillas
Human Resources Director
Hennepin Co. Human Resources Dept
A-400 Government Center
300 South Sixth Street
Minneapolis, MN 55487-0040
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In re: In the Matter of All Licenses Held by Speedway SuperAmerica Sfore,
LLC d/b/a Speedway SuperAmerica Store, for fhe Premises Located at
390 Maryland Avenue East, Saint Paul; OAH Docket No. 11-6220-20611-3
Dear Mr. Viscasillas:
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 official record. Our file in this matter is now being closed.
Sincerely,
BLN nh
Enclosure
�4�,G-��,�,.�� Y�-��.�
BARBARA L. NEILSON
Administrative Law Judge
Telephone:(651)361-7845
Cc: achel Tierney
Daniel Stower
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OAH 11-6020-20611-3
STATE OF MINNES07A
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE CITY OF SAINT PAUL
In the Matter of All Licenses Held by Speedway FiNDINGS OF FACT,
SuperAmerica Store, LLC d/b/a Speedway �ONCLUSIONS, AND
SuperAmerica Store, for the Premises Located at RECOMMENDATION
390 Maryland Avenue East, Saint Paul.
This matter came on for hearing on July 30, 2009, before Administrative
Law Judge Barbara L. Neilson, in Conference Room 220 of the City
Hal1/Courthouse Building, 15 West Kellogg Boulevard, St. Pauf, MN 55102. The
OAH record closed at the conclusion of the hearing on July 30, 2009.
Rachei Tierney, Assistant City Attorney, 400 City Hall, 15 West Kellogg
Boulevard, St. Paul, MN 55102, appeared for the City of St. Paul's Department
of Safety and Inspections (DSI).
The Speedway SuperAmerica Store (Licensee) was not represented by
counsel. Instead, Mark Lindsey, the Licensee's dis±rict manager, appeared on
the Licensee's behalf.
STATEMENT OF THE ISSUES
1. Did the Licensee violate Minnesota Rules part 4626.0395 by not
maintaining hot readily perishable foods at 140 degrees Fahrenheit or higher?
2. If so, is the proposed $200 penalty a reasonable licensing sanction
under the St. Paul Legislative Code?
The Administrative Law Judge concludes that the aileged violations
occurred and that the City may take the proposed adverse action against the
Licensee's licenses.
Based on the evidence in the hearing record, the Administrative Law
Judge makes the following:
FINDINGS OF FACT
1. Speedway SuperAmerica Store #4038 (Licensee) is a gas station
and convenience store located at 390 Maryland Avenue East in St. Paul. The
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store is ficensed by the City of St. Paul to sell gas, grocery items, perishable
foods, and cigarette and tobacco products.'
2. Among other perishable foods, the store selis hot dogs to which
customers can add chili and cheese toppings. The chili and cheese products are
supplied to the store in plastic bags that are shelf stable for 12 months prior to
opening. The bags are placed inside a plastic container that has a heating
device and are dispensed through two tubes.
3. On April 10, 2009, David Weisberg, an Environmental Heaith
Specialist with the City of St. Paui's Department of Safety and Inspections (DSl),
conducted an inspection of the Licensee's store. Daniel Stower was the
Licensee's manager on duty that day. Mr. Stower is a certified food manager.
During ihe course ofi his inspection, Mr. Weisberg identified several "non-criticaP'
food code violations at the store, such as an uncovered waste receptacle in the
restroom and an unsecured drain cover in the back room, and one "critical
(major)" violation. Critical major vioVations are those violations of the food code
that place consumers at a high risk of food-borne iliness.
4. The critical (major) food code violation identified by Mr. Weisberg
concerned the temperature of the Licensee's chili and cheese products. By law,
hot "potentially hazardous" foods are to be maintained at 140 degrees Fahrenheit
or higher.' Most cheese and meat products are considered potentially
hazardous because they are capable of supporting organisms that can produce
iliness. The Licensee agreed that the chili and cheese products dispensed in its
store are potentially hazardous foods and did not dispute the applicability of the
140 degree temperature requirement to those products.
5. During his April 10, 2009, inspection, Mr. Weisberg first noted that
the thermometer on the outside of the holding container for the chifi and cheese
products registered 130 degrees Fahrenheit. This low reading concerned Mr.
Weisberg, so he tested the temperature of the cheese product by dispensing
about fivo ounces of the product into a cup and then probing the product with his
thermometer. The cheese producYs temperature registered 130 degrees on Mr.
' Ex. 1.
2 Testimony of David Weisberg; Exs. 2 and 10.
3 Testimony of Weisberg; Testimony of Daniel Stower; Ex. 2. See St. Paul Legislative Code
� 311A.11(1)(a).
Minn. Rule 4626.0395. "Potentially hazardous food" is defined in Minn. R. 4626.0020, subp. 62,
as food that is natural or synthetic and is in a form capable of supporting the rapid and
progressive growth of infectious or toxigenic microorganisms; the growth and toxic production of
Clostridium botulinum; or, in raw shell eggs, the growth of Salmonella enteritidis. Among other
things, potentially hazardous food includes food of animal origin that is raw or heat-treated and
excludes food with a pH Ievei of 4.6 or below. Most microorganisms that can produce food-borne
iliness proliferate at temperatures below 140 degrees and most grow very siowly at temperatures
above 140 degrees. See Minnesota Rule 4626.0395.
5 Testimony of Weisberg.
6 Testimony of Stower; Ex. 10.
2
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Weisberg's thermometer. The City allows for a two degree margin of error when
testing the tempesature of food products. Therefore, when Mr. Weisberg tested
the cheese producYs temperature on April 10, 2009, it was between 128 and 132
degrees.'
6. To test food temoerature, Mr. Weisberg uses a digital thermometer
resembling a meat thermometer that has a metai probe approximately 2'/� inches
in length. His office checks and calibrates the thermometers periodically.
Although Mr. Weisberg could not recafl the date his thecmometer was last
calibrated, it was accurate N��thin iv✓o degrees at that time and has never been
found to be working improperly.
7. After he completed the inspection, Mr. Weisberg went back to his
office and entered the information into a data base maintained by DSI. Once all
the information was entered, the computer generated an "Inspection Report"
specific to the Licensee listing all the alleged food code violations identified by
Mr. Weisberg, the corresponding Minnesota Rule provision, the severity of the
violation, and the date by which the Licensee was required to correct the
violation.
8. After his discussion with Mr. Weisberg, Mr. Stower informed Mark
Lindsey, District Manager for SuperAmerica, about Mr. Weisberg's findings. Mr.
Lindsey directed Mr. Stower to contact Gehl's Guernsey Farms, Inc. (Gehl's),
which supplies the chili and cheese products used by the Licensee and also
manufactures the dispenser used by the Licensee. Mr. Lindsey, who is also a
certified food manager, came to the store later that day. He checked the
temperature on the chili and cheese machine with his own thermometer and
found it to be proper. Based upon the information provided by Mr. Stower, Mr.
Lindsey believed that Mr. Weisberg had only looked at the thermometer on the
side of the machine before finding a violation.'
9. According to the information later provided by Gehl's in an undated
letter to the Licensee, the "bag-in-box" cheese sauce is potentially hazardous
after opening and should be maintained at 140 degrees Fahrenheit." The
dispenser has a controlled thermostat that cycles between 130 and 160 degrees
Fahrenheit. According to Gehi's, the sauce remains above 140 degrees
Fahrenheit once it is properly preheated. The thermometer on the outside of the
dispenser reflects the temperature of the system's return hot air, which fluctuates
when the thermostat is cycling, and does not show the temperature of the cheese
or chili sauce. Gehl's indicated that the proper method for obtaining an accurate
temperature of the chili and cheese products is to remove the valve guard on the
' Testimony of Weisberg; Ex. 2.
e Testimony of Weisberg.
9 Testimony of Weisberg; Ex. 2.
10 Testimony of Stower and Mark Lindsey.
" Ex. 10. The letter indicated that the cheese sauce has a pH level of 52 — 5.8 and water activity
of 0.987.
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plastic bag and probe the contents of the bag with a thermometer.i In the letter
to the Licensee, Geh{'s stated that, 'rf the chili or cheese products were beVow the
required 140 degree temperature, it was likely due to one of five things:
1. The product not being preheated to 140 degrees prior to serving;
2. The lid not on securely causing hot air to escape;
3. The valve guard not on;
4. Low voltage-too much wattage being pulled from the outlet; or
5. Bag not probed for temperature or too small of a sample evaluated.
10. According to Gehl`s, to properly preheat the chili or cheese product,
a second unopened bag of the product should be piaced in the dispenser on top
of the open bag that is dispensing the product. That way, while one is
dispensing, the other is preheating to the �roper temperature. Mr. Stower and
Mr. Lindsey generally follow that practice.'
11. On April 13, 2009, Bill Gunther, DSI's Environmenta� Manager,
issued a Notice of New Critical Violations to the Licensee. The Notice advised
the Licensee of the critical food code violation and the other violations identified
at its store during the City's April 10"' inspection. The Notice further stated that
failure to correct any of the food code violations could result in adverse action
against the store's license. Mr. Gunther attached a copy of the Inspection Report
to the Notice, and informed the Licensee that ail the violations had to be
corrected by the date indicated in the report. The Notice specifically highlighted
the critical food code violation stating that the Licensee's hot food holding
equipment had been found to be maintaining readily perishable food at less than
140 degrees Fahrenheit in violation of Minnesota Rule 4626.0395. The Notice
directed the Licensee to correct this violation by May 10, 2009, by providing
"adequate, approved hot holding equipment to maintain hot readily perishable
foods at 140 degrees Fahrenheit or higher except during preparation, cooking or
coolin 16
g „
12. The Notice advised the Licensee that the City would conduct a re-
inspection of the store on or after May 10, 2009, to verify that the identified
violations had been corrected. The Notice further informed the Licensee that any
violations not corrected would be referred to the City Attorney's Office for
12 Ex. 10; Testimony of Stower.
" Ex. 10.
14 Ex. 10.
t5 Testimony of Stower, Lindsey.
16 Ex. 3
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possibfe adverse action including a fine, license suspension, andior license
revocation."
13. On May 14, 2009, Mr. Weisberg conducted a second inspection of
the Licensee's store to see if it had corrected the food code violations identified
on April 10�'. Mr. Weisberg noted that the thermostat on the outside of the chili
and cheese container again registered 130 degrees Fahrenheit. Mr. Weisberg
tested the femperature of both the chili and cheese toppings using the same
method of dispensing about 2 ounces of the product into a cup and probing tne
product with his thermometer. On this date, the temperature ef the cheese
product was 127.7 degrees Fahrenheit and the temperature of the chili product
was 129.9 degrees Fahrenheit.'
14. Both the chili and cheese products are very viscous foods and will
not cool that rapidly. It is unlikely that chili and cheese held at 140 degrees
Fahrenheit would cool to temperatures below 130 degrees Fahrenheit in the time
it takes to dispense about tv✓o ounces of the product and measure the products'
temperature with a thermometer.'
15. After Mr. Weisberg obtained the temperature readings of the chili
and cheese products, he informed the store manager that he had found a repeat
critical food code vioiation and that the store would hear from the City in the near
future regarding adverse licensing action.
16. In addition to finding that the critical food code violation concerning
the temperature of the chili and cheese product had not been corrected, Mr.
Weisberg also found that several non-critical violations had not been corrected
since the last inspection. Mr. Weisberg Iisted the Licensee's various food code
violations in a second Inspection Report dated May 14, 2009.
17. On May 15, 2009, Mr. Gunther submitted a memo to the Citys
Director of Licensing, Christine Rozek, recommending that the City take adverse
licensing action against the Licensee based on its repeat critical food code
violation. Mr. Gunther explained that the Licensee's hot food holding equipment
was continuing to maintain readily perishable food at I�ss than 140 degrees
Fahrenheit. Mr. Gunther recommended that the Licensee be assessed a penalty
in the amount of $200 for failing to correct the violation.
18. Ms. Rozek accepted Mr. Gunther's recommendation and forwarded
his memo to the City Attorney's office.
" Ex. 3.
' Testimony of Weisberg; Ex. 4.
19 Testimony of Weisberg.
20 Testimony of Weisberg.
27 Testimony of Weisberg; Ex. 4.
2z Ex. 5; Testimony of Christine Rozek.
23 Testimany of Rozek.
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19. By letter dated June 1, 2009, Rachel Tierney, Assistant City
Attorney, notified the Licensee that, based on its uncorrected criticai food code
violation, the City would recommend suspension of its licenses until the violation
has been corrected and assessment of a$200 penaity. Ms. Tierney informed the
Licensee that it could correct the violation and pay the penalty, admit the facts
but contest the penalty at a public hearing before the Ciry Council, or request a
hearing before an Administrative Law Judge.
20. On June 5, 2009, at the request of Mr. Lindsey, Mr. Weisberg
returned to the Licensee's store to re-check the temperatures of the chili and
cheese products. Mr. Lindsey explained to Mr. Weisberg what Gehl's had told
the Licensee about the external thermometer. Mr. Weisberg conducted the
temperature test of the products in the same manner he had on his prior visits.
He dispensed approximately 2 our,czs of the product into a c�p and measared
the temperature by probing the product with his calibrated thermometer. Mr.
Weisberg obtained an initial reading of about 135 degrees Fahrenheit for both
the chili and cheese products. However, after waiting about five minutes, Mr.
Weisberg obtained temperature readings of about 142 degrees Fahrenheit for
each product.
21. By e-mail dated June 8, 2009, Mr. Weisberg informed Julie Kraus
of the City Attorney's Office that the Licensee was now in compliance with the
food code.
22. On or about June 9, 2009, the Licensee submitted a request for a
hearing on the violation and proposed $200 penalty.
23. On June 24, 2009, the City issued a Notice of Administrative
Hearing, scheduling the hearing to take place on July 30, 2009.
24. The hearing took place as scheduled on July 30, 2009, and the
OAH record closed with the conclusion of the hearing on that day.
25. The heating device on the dispensing machine cannot be adjusted
to a higher temperature.
26. On several occasions duri�g the first iwo weeks of July 2009, Mr.
Stower tested the temperature of the chili and cheese products by removing the
valve and probing the contents of the bags with a thermometer in the manner
Z4 Ex. s.
25 Testimony of Weisberg, Lindsey.
zs Ex. 7.
27 Ex. 8.
Zg Ex. 9.
29 Testimony of Stower and Lindsey.
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recommended by Gehl's. On these occasions, the chili and cheese products
registered temperatures between 14� and 144 degrees Fahrenheit ao
27. The Licensee generally has had more food safety compliance
passes than fiailures and has responded promptly to any concern raised by DS1.
Based on these Findings of Fact, the Administrat+ve Law Judge makes the
following:
CONCLUSIONS
1. The Administrative Law Judge and the St. Paul City Council have
authority to hear this matter pursuant to St. Paul Legislative Code § 310.05(c).
2. The hearing in this matter was conducted 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 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 Speedway
SuperAmerica Store.
5. The St. Paul City Council may take adverse action against any or
all licenses or permits, licensee or applicant for a license, on the basis that the
licensee or applicant has failed to comp�y with any condition set forth in the
ficense or has vioVated any of the provisions of any statute, ordinance or
regulation reasonably related to the licensed activity.
6. The Minnesota Food Code, which is set forth in Minn. Rules part
4626, applies to food establishments licensed and inspected by local authorities
that conduct inspectio�s of food estabfishments, as well as those licensed and
inspected by the ^vepartmenf oi Agriculture and the Depariment of Health,
7. Under St. Paul Legislative Code § 331A.11, violation of the state
food code is grou�ds for adverse licensing action. The presumptive penalty
under the St. Paul Legislative Code for a first time critical vioiation of the food
code is a $250 fine.�
ao Ex. 12; Testimony of Stower and Lindsey.
37 Testimony of Rozek.
32 St. Paui Legislative Code § 310.06 (b)(6)(a).
aa Minn. R. 4626.0017.
34 Saint Paul Legislative Code § 310A5(m).
7
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8. Minnesota Rule 4626.0395 requires that potentially hazardous
foods be maintained at 140 degrees Fahrenheit or above, except during
preparation, cooking or cooling.
9. "Potentially hazardous foods" means a food that is in a form
capable of supporting the rapid and progressive growfh of infectious or toxigenic
microorganisms.�
10. The chili and cheese products so�d at the Licensee's store meet the
definition of "potentially hazardous foods" and were required to be maintained at
140 degrees Fahrenheit of higher.
11. The City demonstrated by a preponderance of the evidence that, on
Aoril 10 and May 14, 2Q09, the Licensee failed to main±ain the chili and cheese
products at 140 degrees Fahrenheit or higher in violation of Minnesota Rule
4626.0395.
12. The City's recommendation to assess a$200 civil penalty against
the Licensee is reasonabie and should be affirmed.
Based upon these Conclusions, and for the reasons explained in the
Memorandum attached hereto, the Administrative Law Judge makes the
following:
RECOMMENDAi ION
It is respectfulfy recommended that the St. Paul City Councii take adverse
action against the licenses held by Speedway SuperAmerica Store, d/b/a
Speedway SuperAmerica Store, for the premises located at 390 Maryland
Avenue East, St. Paul.
Dated: August 25, 2009
\� �... ts¢�'a
BARBARA L. NEILSON
Administrative Law Judge
Reported: Digitally recorded,
No transcript prepared
34 Minnesota Rule 4626.0020, Subp. 62A (1).
3s See St. Paul Legislative Code § 310.05(m) (Presumptive penalty for critical violation under
administsative enforcement of state food code § 311 A is $250.}
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NOTICE
This reporE is a recommendation, not a final dec+sian. The St. Paul City
Council will make the final decision after reviewing the record and may adopt,
rejecf or modify the Findings of Fact, Conclusions and Recommendation
contained herein. Pursuant to Section 310.05 of the St. Paul Legislative Code,
the City Gouncif's final decision shall not be made until this Report has been
made available to the parties to the proceeding and the Licensee has been
provided an opporfunity to present oral or written arguments alleging error on the
part of the Administrative Law Judge in the application of the Iaw or the
interpretation of the facts and an opporkunity to present argument refating to any
recommended adverse action. The Licensee and any interested parties should
contact Shari Moore, Saint Paul City Clerk, 290 City Hall, 15 West Kellogg
Boulevard, St. Paui, MN 55102, ;o find out the process for presenting argument.
MEMORANDUM
The City has established that, on April 10 and May 14, 2009, the
Licensee's chili and cheese products were not maintained at 140 degrees
Fahrenheit or warmer as required by Minnesota Rule 4626.0395. This violation
of the food code is characterized as "critical (major)" meaning that it posed an
imminent public health risk by placing consumers at a high risk of food-borne
iliness. Hot food held at below 140 degrees is particularly susceptible to the
growth of bacteria that can lead to food-bome ilinesses.
The Licensee argues that the City did not properly test the temperature of
its chili and cheese products. The Licensee contends that to get an accurate
reading of the products' temperature, the City inspector should have probed the
contents of the product inside the dispensing bags as recommended by the
products' supplier. According to the Licensee, by the time the inspector
dispensed two ounces of the product into a cup for testing, the product cooled
and fell below the required 140 degrees. The Licensee also suggests that two
ounces of the product was too smaii a sampie to get an accurate reading of the
products' temperature.
The Administrative Law Judge is not persuaded by the Licensee's
arguments. On the days inspected, both the chili and cheese were found to be
10 degrees or more below the required 140 degree mark. 1t is unlikely that the
products would have cooled that rapidly in the time it took Mr. Weisberg to
dispense two ounces into a cup and obtain a reading on his thermometer. In
addition, it is reasonable to test the product as dispensed since that is the
manner by which consumers woufd obtain the product. Finaiiy, the Licensee's
claim that the inspector should have tested the temperature by probing the
contents of the bags with his thermometer raises contamination concerns. The
Administrative Law Judge finds that the manner in which Mr. Weisberg tested the
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products was appropriate and there is nothing in the record to suggest that his
thermometer was not calibrated or that his readings were inaccurate for some
other reason.
Violation of the state food code is grounds for adverse licensing action.
The record demonstrates that the Licensee on two occasions failed to meet the
standards of the Food Code with respect to food temperature control. Therefore,
the City has demonstrat�d by a preponderance of the evidence that good cause
exists to take adverse action against the licenses held by Speedway
SuperAmerica Store. The proposed $200 penalty is reasonabie under the St.
Paul Legislative Code, but ultimately the sanctions and conditions to be imposed
for this conduct are within the discretion of the St. Paul City Council.
B.L.N.
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