09-178Council File # v�' ���_
Green Sheet # ,30(� �, `J8Z}
Presented by
—•- !
-- f/
; MtNtVE�OTA
WHEREAS, Mazatlan � Mazaflan (License ID # 20070001948} (hereinafter "licensee"}
located at 567 Stryker in Saint Paul received an Notice of Violation dated September 5, 2008 ("September
Notice"); and
WHEREAS, the Notice alleged violatlon on August I5, 2008 (originally August 18, 2008,
axnended at the Administrative Heazing) of license condition # 5 xequiring wanding and carding of all
patrons after 9:00 p.m. and alleging service of an obviously intoxicated patron ; and
9 WHEREAS, licensee denied the allegations and requested a hearing before an Administrative Law
10 Judge; and
11
12 WHEREAS, licensee received a second Notice of Violation dated October 27, 2008 ("October
13 Notice"), alleging failure to pay a council-imposed fine for a prior advexse action; and
14
15 WHEREAS, licensee denied the violation in the October Notice and requested that that matter be
16 consolidated with the hearing scheduled for the September Notice; and
17
18 WHEREAS, a hearing was held before an Administrative Law Judge on November 7 and 18, 2008,
19 at which each party was represented by Counsel, presented testunony, and offexed exhibits; and
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22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
WHEREAS, the Administrative Law Judge issued a Report on Januazy 7, 2004, in which the
Administrative Law Judge issued Findings of Fact, Conclusions of Law, a Recommendation and a
Memorandum; and
WHEREAS, the Administrative Law Judge found that there was sufficient proof that licensee had
committed the violation of license condition number five as alleged in the September Notice and found that
there was not sufficient proof of service of an intoxicated patron; and
WHEREAS, the Administrative Law Judge found that licensee failed to pay the $500.00 fine as
alleged in Yhe October Notice; and
WHEREAS, the St. Paul Legislative Code § 310.05(k) allows the council to impose costs of the
administrative hearing if the claim or defense of the licensee is frivolous, or made in bad faith ar if the
licensee was sufficiently in control of the situation and therefoxe could have reasonably avoided the
violation; and
WHEREAS, the licensee was given notice that a public hearing would be held before the City
Council on Februazy 4, 2009 at which time licensee would have an opportunity to present oral or written
argument to the Council; and
WHEREAS, licensee did not file any exceptions to the report of the Administrative Law Judge; and
0�-��8
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A3 WHEREAS, at a�ublic hearing or� F�l�i-�ta�y 4 2069, tlre�ounciI of the City of Saint Paul
-- 44 all the evidence contained in the record, the arguments of licensee's attorney at the public
45 hearing, the Admuustrative Law Judge's Findings of Fact, Conclusions of Law, and Recommendations;
46 now, therefore, be it
47
48 RESOLVED, that the Council of the City of Saint Pau1 issues this decision based upon
49 consideration of the record of the entire proceedings herein, including the hearing before the
50 Administrative Law 7udge, all the documents and exhibits introduced therein, the Findings of Fact,
51 Conclusions of Law and Recommendation as referenced above, and the deliberations of the council in
52 open session of that hearing; and be it
53
54 FURTHER RESOLVED, that a fine of $1,OOO.QO and costs of the administrative hearing in the
55 amount of $350.00 is imposed against all licenses held by Mazatlan LLC d)b/a Mazatlan; and be it
56
57 FURTHER RESOLVED that the $1,OOO.QO fine and $350.00 costs be paid within 30 days of the
58 passage and approval of this resolution; and be it
59
60 FINALLY RESOLVED, that the Findings of Fact, Conclusions of Law, and Recommendation of
bl the Administrative Law Judge in this matter are hereby adopted as the Findings and Conclusions of the
62 City Council in this matter.
63
64 A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and
6S to the license holder.
66
Bostrom
Carter
Stark
Thune
eas rvays nbsent Requested hy Department of:
/ ��� -{—
' BY l��l�a�-r� /� /�-- � ..�
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Approved by the Office of Financial Services
✓
� By:
Y
By:
Adopted by Council: Date
Adoprion Certified by Counc -Secretary $y;
BY' _L111 / � l�
Approv�e� �by �D 3 �z��� 1
By: �..%'l. l�`C,�� -�'
by Ciry Attomey
. n ��r' �
� Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet �
D�-I'( 8
� DeparbnsnUOffice/Council: y Date ImGatetl: !
t SI - Dept. of Safety 8 Inspections ,
Confact person $ Phone:
Rachel Tiemev
266-8710
� Must Be on Council enda by (Da �
i
18-FEB-09 �r�com�-� '
� Doa Type: RESOlUT10N I
i �
� E-Dooument Required: Y I
DocumentConWCt: dulieKraus i
I ContactPhone: 266-8776 .
y
Assign
Number
For
Routing
OMer
Total # of Signature Pages _(Clip All Locations for Signature)
O: 3066780
' Citv Clerk '
Action Requested:
Memorializing City Council acrion taken February 4, 2009 imposing adverse acrion against all licenses held by Mazatlan, LLC d/b/a
Mazatlan (License ID #2007000194R) for the premises located at 567 Skyker Avenue in Saint Paul.
Recommendations: Approve (A) or Reject (R):
Planning Gommission
CIB Committee
Civil Service Commission
Personal Service Contracts Must Answer the Folfowing Questio�s:
1. Has this persoNfirm ever worked under a contract for this department?
Yes No
2. Has this personlfirm ever been a city employee?
Yes No
3. Does this person/firm possess a skill not norcnally possessetl by any
current city employee�
Yes No
Explain ail yes answers on separate sheet and atWch to green sheet.
Initiating Problem, 4ssues, Opportunity (Who, What, When, Where, Why):
A public hearing was held on February 4, 2009 to discuss the Adminishative Law Judge's Finds of Fact, Conclusions and
Recommendarion from the administrarive heazing held on November 7 and 18, 2008.
Advantages If Approved:
Memorialization of Council action taken as a result of the public keazmg.
Disadvantages If Approved:
None.
DisadvaMages If Not Approvetl:
Total Amount Of
Transadion:
Funding Source:
Financial Information:
(Explain)
CosURevenue Budgeted:
Activity Number:
February 9, 2009 11:29 AM Page 1
QFFICE OF THE CITY ATTORNEY
John J. Choi, CilyAttomey
sn�xr
PAUL
�
AAlll!
CITY OF SAINT PAUL
ChnstopherB. Co/eman, Mayor
January 14, 2009
Dq�I�S- --
Civi! Drvis�on
400CityHa11 Telephone.651266-8770
75 West Kellogg 8ivd Facsimile � 651 298-5679
SamtPaul, Minnesota 55f02
NOTICE OF COUNCIL HEARING
Boris Parker
Parker & Wenner, P.A.
220 South Sixth Street
1700 U.S. Bank Plaza
Minneapolis, MN 55402-3707
RE; All licenses held by Mazatian, LLC d/b/a Mazatlan for the premises (ocated at 567 Shyker Avenue
in Saint Paul.
License ID #: 20070001948
Dear NTr. Pazker:
Ple,ase take notice that a public bearing to discnss the report af the Administrative Law Judge concenvng the
above-mentioned licenses has been scheduled for Wednesday, February 4, 2009, at 5:30 p.m. in the City Council
Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse.
You bave the opportunity to file exceptions to the report wit6 the City Clerk at any time during normal business
hours. You may also present oral or written azguments 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
Administrative Law Judge and on the arguments 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,
/ I ���t�l)C. 1 �v�W r I
Rachel Tierney `�
Assistant City Attorney
cc: Diane Nordstrom, Office of Administrative Hearings, P.O. Box 64620, St. Paul, MN 55164-0620
�Iary Erickson, Council Secretary
Christine Rozek, Deputy Director of DSI
Blanca Sanchez, 6807 Dupont Avenue North, Brooklyn Center, MN 55430
Monica Carbajal, Coznmunity Organizer, West Side Citizens Organization
127 Winifred Street West, St. Paul, MN 55107-2128
AA-ADA-EEO Employer
aq-���
MINNESOTA �FFICE OF ADMINISTRATIVE HEARINGS
600 North Robert Sueet
Saint Paul, Minnesota 55701
Mailing Address: Voice: (651) 361-19D0
P.O. Box 64620 1'TY: (b51) 361-7878
St. Paul, Minnesota 55164-0620 Fax: (651) 361-7936
January 7, 2009
Shari Moore
St. Paui City Clerk
290 City Hall
15 W Kel�ogg Blvd
St. Paui, MN 55102
L�L � 0 C7 L��
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��G���'���a �`
Re: ln the Maffer ofAdverse Action Against AIO Licenses Held By
Mazatlan, LLC, d/b/a Mazaflan
OAH Docket No. 61-6020-19932-3
Dear Ms. Moore:
Enciosed herewith and served upon you by mail is the Administrative �aw
Judge's Findings of Fact, Conclusions and Recommendation in the above-entitled
matter. Also enclosed is the ofFicial record, with the exception of the recording of the
hearing. lf you wouid 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 naw closed.
Sincerely,
MKS:dsc
Enclosure
cc: Rachel Tierney
Boris Parker
-�. ��- �/�
M. KEVIN SNELL
Administrative Law Judge
Telephone: (612) 370-0374
o�-���
flAH No. 61-6020-19932-3
STATE OF MINNESOTA
OFFICE OF ADMINIS7RATIVE HEARINGS
FOR THE CiTY OF ST. PAUL
In the Matter of Adverse Action Against FINDINGS OF FAC'T,
All Licenses Held By Mazatlan, LLG, CONCLUSIONS AND
dlb(a Mazatlan RECOMMENDATION
This matter came on for hearing befare Administrative Law Judge M. Kevin Snell
(the ALJ) on November 7, 2008, at the Ramsey County Courthouse, 15 West Kellogg
Boulevard, St. Paul, Minnesota, and November 18, 2008, at the O�ce of Administrative
Hearings (OAH), 600 North Robert Street, St. Paul, Minnesota. The OAH record closed
on Qecember 8, 2008, upon receipt of the parties post-hearing briefs and closing
arguments.
Rachei 7ierney, Assistant St. Paul City Attorney, appeared at the hearing as
attorney for the City of St. Paui (the City ). Boris Parker, Esq., Parker & Wenner, P.A.,
represented Mazatlan, LLC (Mazatlan) at the hearing. Also present on December 8,
2008, was the OAH contracted interpreter for the Spanish language, Viviana Szieifer.
STATEMENT OF THE ISSUES
1. Did the Respondent estabfish that it was prejudiced by a� error in the
identification of the date af the alleged violations in the City's Notice of Violation and its
Notice of Administrative Fiearing?
7he ALJ finds that the Respondent was not prejudiced by the error.
2. Did the City prove by a preponderance of the evidence that, on August 15,
2008, Mazatlan violated the conditions of its license by failing to wand and check the
identification of ali patrons entering the estabiishment?
Yes, the A�J finds that the City did meet its burden of proof on this issue.
3. Did the City prove by a prepo�derance of the evidence that Mazatlan
served alcohoi to an obviously intoxicated person on August 15, 2008?
No, the ALJ finds that the City did not meet its burden of proof on this issue.
4. Does the ALJ have jurisdiction to reopen a resolution of the St. Paui City
Council after more than two months have passed since it was approved by the mayor?
��-i�8
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No, the ALJ does not have jurisdiction to reopen a finai decision of the City
Council.
Based on the evidence in the hearing record, the Administrative Law Judge
makes the following:
FINDINGS OF FACT
FactuatBackground
1. Mr. Jorge Sanchez, and his wife Blanca Sanchez, are the owners of
Mazatlan, LLC, d/bla Mazatlan, which is located at 567 Stryker Avenue in the City of
St. Paui. Mazatlan is a restaurant and bar that hoids restaurant, entertainment,
gambling, and liquor licenses issued by the City.'
2. On August 2, 2007, Mazatlan first received its liquor Iicense. Because of
problems with the bar that previously operated at Mazatlan's location, the Brown Derby,
Matzatlan's liquor license was granted with eight conditions imposed. Co�dition
number five states;
Security personnel shall be assigned to each entrance starting at 9 PM
and remain until all patrons have ieft the licensed premises, which inciude
the parking lots. Security personnel shali "wand" {using a metal detector)
each patron and check ail handbags and packages carried by patrons.
Security personnel shalf verify the age of patrons by checking state or
federally issued identification cards (no picture I.D., no entrance).
Customers re-entering the establishment shaA be subject to the same
security measures as customers entering the establishment for the first
time.'
3. Qn August 10, 2�Q7, Mazatlan staff received aicohol awareness training
from a vendor recommended and approved by St. Paui Department of Safety and
inspections (DSf}. Alcohoi awareness training is designed to teach people how to
recognize intoxication, what over-service is, how to check peopies' identification and
related skills.
4. On September 13, 2007, Mazatlan received a seven percent {iquor
discount for sending its employees to alcohol awareness training 6
' Testimony of Jorge Sanchez and Ghristine Rozek, Deputy Director, OSI; Ex. 2.
2 Ex. 2-1.
3 Ex. 3, testimony of John Robertson and C. Rozek.
4 �d.
5 Ex. 2-1, test. of J, Sanchez and C. Rozek.
6 F�c. 2-1.
2
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U t
- -._. �- - �-
�a+lttreto tlVand and Check IDs
5. At all times on weekend evenings, in accordance with a security plan
submitted to and approved by the City, no later than 9:00 p.m., Mazatlan's standard
operating procedures include:
a. The only door available for entrance is the rear, parking lot door. The front
and other doors are locked to the outside and only available for
emergency exit;
b. Four armed security guards {occasionally off-dury police o�cers) are on
duty until ciosing, afl wearing b{ack shirts with the word SECURITY across
the back of the shirt in large letters and in smali letters on the front;
c. One security guard is posted at the interior entrance between the bar and
the restaurant;
d. One security guard is posted at the interior of the front door;
e. One security guard is posted at the rear, entrance door, either just outside
by the parking lot or just inside the door. This security guard is primarily
responsible for checking identification and searching patrons;
f. One security guard is a"rover" who walks throughout the bar observing
patrons, checking for intoxicated patrons and calling them cabs, and also
from time to time assists andtor relieves the rear door security guard;
g. All pafrons are "wanded" with a partable metal detector and a{I bags,
purses and the like are searched. 1n addition, afl males are all patted
down to check for weapons, drugs and any other contraband.'
6. In addition, Mazatlan is equipped with surveillance cameras to record
activities on the Mazatlan pramises. The tapes are maintained for 3Q days to aliow DSI
or the police to immediately request the tapes for review. Although the tapes of
August 15, 2008 were made and were availabfe, neither the police nor DSI requested
those tapes for review. After 30 days, the August 15, 2008, tapes were recorded over in
accordance with Mazat4an's standard practice.
7. One time, on February 1&, 200&, a patron entered the estabfishment with
a weapon when a new employee, a female server, Iet h+m in a non-entrance door. After
investigation, no adverse action was taken. At ali other times, Mazatfan security
personnel have been successful in finding and preventing weapons, including knives
7 Testimony of David Budd, Javier Ortiz, Steve Stephen, J. Sanchez, and G. Rozek; Ex. 2-1.
8 Ex. 3, test. of J. Ortiz, ,l. Sanchez, and G. Rozek; Ex. 2-1.
�
ay-��g
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— –astd a crowbar, and other contraband from coming into Mazatlan. T�picalfy, patrons
with barmed items are cooperafive in placing such item in their vehicles.
8. On October 29, 2007, and August 6, 2008, the City sent Mazatlan
congratulatory letters for passing liquor compliance checks on October 12, 2007, and
July 21, 20Q8, respectively.'
9. Responding to a complaint received by DSI that patrons were not being
wanded before entering Mazatfan, o� August 15, 20Q8, at approximately 9:45 p.m.,
undercover City vice detectives David Schoen and Craig Gromek, parked their
unmarked vehicie and attempted to enter Mazatlan from the front door. The door was
locked, so they went around to the rear of the building and proceeded into Mazatian
thtough fhe rear door. The security guard, David Budd, just outside in the parking lot
nodded at and greeted them as they entered, but neither asked them for their
identification, nor did he wand them or pat them down.'�
10. Mr. Budd remembered detective Sergeant Schoen's face, having seen
him in Mazatfan on prior occasions, but he had no specific memory of him being there
on August 15, 2008.'
Serving an Qbviousty Intoxicated Person
11. In the evening of August 15, 2008, in addition to the four security
personnel, John Robertson was working at Mazatlan as the bartender. The owner,
Jorge Sanchez, was also work+ng that night. Mr. Sanchez, whose principa{ language is
Spanish, aiso tends the bar and does so specificaily when Mr. Robertson, who does not
speak Spanish, needs Mr. Sanchez to wait on or translate for Spanish-speaking patrons
who are difficult for Mr. Robertson to understand.'
12. Sergeant Schoen has been a police o�cer for 25 years, and has been
attached to the Vice Unit the most recent 10 years. For approximately the past four
years, Sergeant Schoen has o�ced out of DSf working principally with liquor, gambfing
and pawn shop compliance.
13. As he often does, on August 15, 2008, Sgt. Schoen was conducting a
series of undercover checks of bars for (icense condition compiiance and responding to
complaints. At each of several bars, both before and after visiting Mazatlan, including
Billy's on Grand, Station Four, The Wild Onion, and other bars on Grand Avenue,
Sergeant Schaen ordered and "sipped" a beer during the time he was at each bar.
Detective Sergeant Gromek drove the police car from location to location.
9 Test. of D. Budd, J. Ortiz, S. Stephen, J. Sanchez, and C. Rozek; Ex. 2-1.
,o Ex. 2-1.
" Testimony of Sgt. David Schoen and C. Rozek.
t2 Test. of D. Budd.
t3 Test. of J. Roberston and J. Sanchez.
' Test. of D. Schoen.
'S Id.
0
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__.
_
__
__--- �4.— Afiter enfe�'ing Mazatian, Sergeants Schoen and Gromek went up to the
horseshoe e�d of the bar opposite the entrance. Sergeant Gromek sat on the only bar
stooi availabie and Sergeant Schoen stood next to him. Both ordered beers from a
bartender he described as "Mexican." There were approximately 30 patrons in the bar,
mostly Hispanic, and a discjockey playing amplified music and taiking ta patrons using
the microphone."'
15. Sitting on a bar stool on the other side of Sergeant Schoen was a Hispanic
mafe patron, 40 to 5Q years old, who attempted to engage Sergeant Schoen in
conversation, greeting Sergeant Schoen and referring to him as Rambo or John Wayne.
At some point, the Hispanic patron had been served a beer. Sergeant Schoen
attempted to ignore him, turned his back on him, because he wanted to talk to his
partner and observe the rest of the bar."
16. Sergeant Schoen had di�cufty understanding the Hispanic patron
because he talked in both Spanish and English, alternating from one language to the
other, combining both languages. Sergeant Schoen observed that his speech was
slusred and that he appeared unsteady on his bar stool. However, 5ergeant Schoen
was abie to learn from him that he was a roofer enjoying a night out after working aii
week.�
17. After that, the Hispanic male patron got up and left the bar for a time and
returned to his seat, staggering as he walked. As he reached for the beer he bumped if,
spiiling about one-third of the contents on the bar. The bartender saw the patron spill
the beer, the patron apologized to the bartender for spiiling the beer, the bartender
handed him some napkins, and the patron wiped up the spilled beer. As a result of
these observations, Sergeant Schoen conciuded that the tiispanic male patron was
intoxicated.'
18. The surveiilance video would not have shown the patron spilling the
beer.
19. Sergeant Schoen could not see the security guard David Budd, who was
stationed outside of the entrance door from his position at the bar. He did see one
patron being checked for identification during the time he was at Mazatlan?'
16 /d. Ex. 1-3.
n Id.
18 Id.
�a !d.
2D Id., Sergeant Schoen had been previously asked by DS{ to verify another allegation of overservice of
alcohol to a Mazatian patron. Because of the poor quality of the tapes, he had oniy been abie to verify
that the patron had been at the bar, not whether or not she exhibited signs of obvious intoxication. Based
on that experience, he was of fhe opinion Ynat the August 15, tapes, had they been available, would not
have shown the spiliing of the beer.
Z ' Test. of D. Schoen,
5
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- — — -
- 2D: Sergeants Schoen and Gromek left Mazatlan at 10:15 p.m 2
21. Sergeant Schoen stated on his incident report, referring to the Hispanic
male, "!n my opinion, he was very intoxicated and that was why he spilled fhe mug."
22. At Mazatian, beer is and has a4ways been served in eifher a plastic cup or
the manufacturer's bottle, not giass mugs with handles 2
23. Sergeant Schoen made no recommendation that criminal charges be
made as a result of the incident and no criminal charges or investigation were initiated.
24. Sergeant Schoen looks for the following outward signs of intoxication: red,
bloodshot, or watery eyes; the strong smeli of a{cohof; slurred speech; unstabfe
balance; and the amount of alcohol consumed.
25. Mazatlan staff look for the same outward signs of intoxication as Sergeant
Schoen, and additional indicators such as: loud or rowdy individuals; individuals that are
too touchy; individuals that are bothering other patrons; how many times an individual
goes to the bathroom; and how they are waiking to the bathroom 2
26. On the night of August 15, 2008, neither the security personnei nor either
bartender had tur�ed away a�yone or removed anyone for being obviously
intoxicated.
Procedurai Findings
27. On August 4, 2008, the City of St. Paul sent a Notice of Violation to
Respondent, aileging a viofation of license conditions iwo and seven, and imposing a
penalty of $500.00. it was sent to Respondent at the same address as appears on the
DSI licensing records, and all previous and subsequent correspondence and notices,
and pursuant to an Affidavit of Service. 29 Mr. Sanchez, testified that he did not receive
the Notice, therefore Respondent did not respond to it.
28. Pursuanf to the August 4, 2008, Notice of Violation, on September 10,
200&, the City councii met, without any appearance by the Respondeni, and ordered
Respondent to pay a matrix penalty of $50o.00 within 30 days for violations of
conditions two and seven of its liquor license.
� Id.
zs fd.
24 Test. of David Budd, Javier Ortiz, Steve Stephen, and J. Sanchez.
25 Test. of D. Schoen, Ex. 1-3.
Z6 Test. of p, Schoen
27 Test. of D. Budd, J. Ortiz, S. Stephen, and J. Sanchez.
2a ld.
29 Ex. 8.
3o Test. of J. Sanchez.
31 Ex. 1Q.
.0
d�-�2g
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�- -- 28�" Ghristine Rozek, the Deputy Director of DSf, routinefy reviews poiice
reports for licensing implications. Ms. Rozek reviewed the re�port submitted by Sergeant
Schoen concerning his visit to Mazatlan on August 15, 2008. 2
30. After reviewing the police report and consulting with the City Attorney,
Ms. Rozek recommended a fine of $1,QOO.QO. This fine is based on the aileged
violation of the conditionai license being a second violation pursuant to the pena4ty
matrix contained in St. Paul Legisfative Code Section 310.05(m}(1) 33
31. On September 5, 2008, the City of St. Paul sent a Notice of Viofation to
Respondent, alleging a violation of section 409.26(b)(4) on August 18, 2008, and
imposing a penalty of $1,000.00 �
32. On September 12, 2008, Respondent, through its attorney, requested a
hearing in connection with the alleged August 18, 2008, violation, noting:
[Tjhe factual ailegations contained [in the Notice of Violation] are not
consistent with the events of August 18, 2008. Gonsequently, our cfient is
not in a position to do anything other than request a hearing before a�
Administrative Law Judge regarding the matter. {t is my hope that as you
and I receive more concrete facts regarding the events of August 18,
2008, that some resolution may be reached between our client and the
City without the requirement of a farmal hearing.
33. On September 29, 2008, the City issued an Imposition of Fine letter to
Respondent pursuant to its September 10, 2008, resolution.
34. On October 3, 2008, the City issued a Notice of Administrative Hearing to
the Respondent to be held on November 7, 2008, for aileged licensing vio{ations that
occurred on August 18, 2008 3
35. On October 27, 2008, the City of St. Paul sent a Notice of Intent to
Suspend License to Respondent, aNeging non-payment of the $500.00 fine issued
pufsuant to the September 29, 2008, Notice.
36. On October 31, 2008, Respondent, through its attorney, requested a
consolidated hearing on November 7, 2008, to address both the afleged August 15,
2008, violations, and tne October 27, 2008, Notice to Suspend License. The City
declined to agree to consolidate the hearings or issue an Amended Notice of
Administrative Hearing.
3Z Test. of C. Rozek.
33 I(j., Ex.2-1.
34 Ex. 4, test. of C. Rozek.
35 EX. .5.
36 EX. 9.
37 Ex. 6.
38 Ex.11.
3s Ex. 7.
7
�a-t� �
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37. The Respondent did not pay tfie $500.00 fine 4
38. On December 2, 2008, Respondent, through its legal counsel, sent a letter
to City Council member David Thune requesting that he move to reconsider the
September 10, 2008, resolution.
Based on these Findings of Fact, the Administrative Law Judge makes the
foliowing:
CONCLUSIONS
1. This matter is properly before the City and the ALJ pursuant to St, Paul
Legislative Code §§ 310.05, 310.06 and 324.11.
2. The City comp{ied with all requirements of regulation and gave proper and
timely notice to the Respondent, except for the initial typographical error specifying the
date of the alleged violations in the Notice and Order for Hearing.
3. Minn. R. 1400.5600, subp. 5 provides in appficable part that:
Amendments sought after the start of the hearing must be approved by
the judge.
4. Because the Respondent has faifed to estabiish that it was materially
prejudiced by the error in specifying the date of the vioiation, the ALJ grants the City's
request to consider the Notice and Order for hearing amended to aAege the date of
August 15, 2008, rather than August 18, 2008.
5. The City has proven by a preponderance of the evidence that the
Respondent failed to comply with Gondition #5 of its liquor license requiring it to "'wand'
(using a metal detector) each patron and ... verify the age of patrons by checking state
or federally issued identification cards (no picture I.D., no entrance)."
6. Minn. Stat. § 340A.502 prohibits any person from selling, giving, furnishing
or in any way procuring "for another alcoholic beverages for the use of an obviously
intoxicated person."
7. Pursuant to section 409.26(b)(4) of the St. Paul Legislative Code it is a
violation of a liquor license to seN a{coholic beverages to an intoxicated person.
8. The City has not proven by a preponderance of the evidence that any
empioyee of Mazatlan sold, gave, furnished or in any way procured one or more
alcoholic beverages to an obviousiy intoxicated person on the night of August 15, 2008
in violation of Minn. Stat. § 340A.502 and St. Paul Legislative Code § 409.26(bj(4).
40 Exs. 12 & 13, test. of C. Rozek & J. Sanchez..
"' RespondenYS Memorandum to the Bench.
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-- --� - Because the Offrce of Administrative Hearings has received no request for
hearing services from the City, the ALJ is without jurisdiction to reconsider the
underlying facts or circumstances or reopen the matter of the October 27, 2008, Notice
of lntent to Suspend License. The City Council resolution of September 10, 2008, is a
final determination for the purposes of this proceeding.
10. Pursuant to section 310.05(m)(1) of the St. Paul Legislative Code, the City
will impose a$500.00 for the first violation of a condition pfaced on a license and
$1,Od0.00 for the second violation of a condition placed on a ficense.
11. The ALJ adopts as Conclusions any Findings that are more appropriately
described as Conciusions, and as Findings any Conclusions that are more appropriatefy
described as Findings.
Based upon these Conclusions, and for the reasons explained in the
accompanying Memorandum, the Administrative Law Judge makes the fo{lowing:
RECOMMENDATION
Based upon these Conclus+ons, the Administrative Law Judge respectfully
recommends that: the St. Pauf City Council:
1} DISMISS the allegation that the Respondent sofd alcohof to an obviously
intoxicated person; and
2) AFFIRM the fine and/or other adverse action against the license based on
the RespondenYs faifure to comply with Condition #5 of its iiquor license.
Dated: January 7, 20Q�
��� � f�
M. Kevin Snell
Administrative Law Judge
Reported: Digitally Recorded
NOTICE
This report is a recommendation, not a final decisian. The St. Paul City Council
will make the final decision after reviewing the record and may adopt, reject or modify
the Findings of Fact, Conciusions and Recommendation contained herein. Pursuant to
Section 310.05 of the St. Paui Legislative Code, the City Council's final decision shall
not be made until this Report has been made availabie to the parties to the proceeding
and the Respondent has been provided an opportunity to present ora! or written
arguments alleging error on the part of the Administrative Law Judge in the application
of the law or the interpretation of the facts and an opportunity to present argument
oH-«�
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-- reia�ng to any recommended adverse action. The Respondent and any interested
paRies should contact Shari Moore, Saint Paui City Glerk, 290 City Hall, 15 West
Kellogg Boulevard, St. Paui, MN 55102, to ascertain the procedure for presenting
argument.
MEMORANDUM
Serving An Obviously Intoxicated Person
While the City might have proved by a preponderance of the evidence that the
Hispanic male patron was intoxicated, that is not the focus of the inquiry in this matter.
The question is — was the patron obviously intoxicated before he was served a single
beer in Mazatlan? 7he Respondent ofFered testimony of several witnesses that its staff
did not observe anyone that was abviously intoxicated and does not remember either
Sergeant Schoen or the unidentified Hispanic male. The City relies entirefy on Sergeant
Schoen's impressions, which were formed immediatefy upon his arrival at the bar in
Mazatlan.
The Minnesota Supreme Court has defined "obvious intoxication" as foliows:
(f]here must be such outward manifestation of intoxication that a person
using '�� reasonable powers of observation can see or should see that
such person has become intoxicated.
Strand v. Village of Wafson, 245 Minn. 414, 422, 72 N.W.2d 609, 615 (1955).
Aside from seeing the spi{I and handing the patron a few bar napkins to wipe up
the beer that escaped the pfastic cup, there is no evidence in the record that the
bartender or any other Mazatlan staff observed the unknown Hispanic patron siur his
speech or appear unsteady on the bar stool o� staggering when he walked. Sergeant
Schoen himself testified that the spilling of a beer or other drink alone is not conclusive
evidence of intoxication. There must be sufficient evidence that at least one Mazatlan
staff person did actually observe, or shouid have observed, using reasonable powers of
observation, that the unidentified patron exhibited sufficient, obvious signs of
intoxication. Although Sergeant Schoen's testimony on what he himseif observed is
reasonably credibie, there is no testimony that any Mazatlan staff observed anyone the
evening of August 15, 2Q08, that exhibited sufficient signs of intoxication that they would
be considered "obviously intoxicated."
In addition, it woufd be reasonably expected that, if a patron was "obviously
intoxicated" and so observed by a pofice officer, that the officer would make additionai
inquiries, inciuding whether the patron was going to be driving and the o�cer asking if
he would be allowed to administer a pretiminary breaih test (PBT). if those inquiries
bore out the opinion of obvious intoxication, a criminal investigation wouid be merited.
There is no evidence that Sergeant Schoen or his partner conducted any follow-up with
the Mazatlan staff or the subject patron, such as: making +nquisies about when the
patron arrived, how long he had been there, whether he had been served anything more
than the one beer he saw, or his apparent condition before and at the time he was
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— serv�. Fina{Iy, Sergeant Schaen did not recommend a criminal charge and none have
been fifed.
For all of the foregoing reasons, the ALJ finds that there is insufFicient evidence
to conciude that Mazatlan served alcohoi to an "obviously" intoxicated individuai.
Violation of License Condition
The Respondent offered testimony about its security practices and procedures at
Mazatian. Although Mazatlan's security procedures are thorough, and Sergeant
Schoen even considers Mazatlan's practice of patting down ali males ta be superior to
the specific wanding requirement of its liquor license, it fai4s to overcome the testimony
of Sergeant Schoen. Afthough a security guard remembered his face, none of the
Mazatlan staff specifically remember Sergeant Schoen or his partner, Sergeant Gromek
going into or being in the bar on August 15, 2008. None of Mazatlan's witnesses
testified specifical{y that both detectives were actua{fy wanded or had their identification
checked. 5ergeant Schoen's testimony is specific, credibfe and persuasive. He was
frank and direct in his testimony, admitted when his memory was unciear to him, and his
testimony was reasonable when compared to the non-specifiic testimony of the other
witnesses.
Mazatlan argues that Sergeant Schoen's testimony is not credibfe because: he
misidentified the shirts that the security personnei wore as "biue" when in fact they were
black; he misidentified the containers in which beer is served at Mazatlan as "mugs"
when in fact beer is only served in p{astic giasses or the manufacturer's battle.
Nevertheless, these factors fail to bear on the issue of whether Mazatian's door security
failed to follow the specific requirement of wanding and checking the identification of
entering patrons. However, there is insufficient evidence to conc(ude that other patrans
were not wanded and their identification not checked. Sergeant Schoen testified that,
from where he was at the bar, he could not see the security guard stationed just outside
of the door in the parking lot.
Therefore, the City met its burden, showing by a preponderance of the evidence,
that neither Sergeants Schoen nor Gromek were wanded or had their identification
verified on August 15, 2008, before they entered Mazat4an. This is a violation of
Condition #5 of Respondent's liquor license.
The September 10, 2008, resolution of the City Gouncil
The St. Paul Legislative Code section 6.07 provides, in applicable part:
Unless otherwise required by law, resolutions shall become effective upon
passage by the councii and approval by the mayor or councii override of a
mayorai veto.
Section 6.08 of the St. Paui Leg. Code provides, in applicable part:
11
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_ - - tfttre mayor neifher s+gns nor vetoes the measure within five (5) business
days, it shal� be deemed approved.
The Council imposed a$500.60 fine, which is the mafrix penafty for a frst appearance
for a licensing violation. There was no mayoral veto, therefore the resolution is deemed
approved by the mayor.
Appendix A-1, Rule 14(h), of the St. Pau{ Leg. Code provides, in appiicable part:
When a question has been voted upon it shall be in order for any member
who voted on the prevailing side to move a reconsideration at the same or
the next following regular council meeting occurring thereafter.
On December 2, 2008, Respondent, through its legal counsel, sent a letter to
CiTy Council member David Thune requesting that he move to reconsider the
September 10, 2008, resolution. There is no provision in the Saint Paui City Garter,
Legislative Code or Administrative Code to reverse or reconsider a City resolution after
more than two and a haff months have passed since the resolution took effect.
For purposes of this proceeding, the September 10, 2008, resolution of the Gity
Council is a final determination on the merits, and constitutes a second appearance for
purposes of the City's penalty matrix.
The ALJ has no jurisdiction or authority to reopen that determination in this
matter, 7he Office of Administrative flearings and the ALJ are, at this time, without
authority to continue this matter for reconsideration of the City's finai determination on
the merits.
MisidentiFication of the date of the afleged violations in the Notices
The Notice of Administrative Hearing is similar to pleadings in a civii case. Minn.
R. Civ. Pro. 15.01 allows pleadings to be amended by leave of the court and directs
courts to grant leave freely. The major consideration is whether there is prejudice to the
opposing party. Prejudice is presumed where an amendment wouid raise a new
issue, would require additional discovery and postponement ofi trial 4 The burden of
proving prejudice +s on the ob}ect+ng party.
Respondent ciaims that it was unfairiy prejudiced in preparing its case because
of the use of August 18, 20a8, rather than the actuai date of August 15, 2QQ8, in the
Notice of Vio{ation and the Natice of Administrative Nearing. The primary complaint
stems from the fact that the surveilfance tapes for August i5, 2008, had been recorded
over and were no longer available when its counsel received the police report, along
42 McDona�d v. Stonebraker, 255 N.W2 827, 830 (Minn. 1977).
43 Sheshan v. St. Peter's Catholic Schoo/, 188 N.W 2 868, 871 (Minn. 1971); Metag v. K-Mart Corp.,
385 N.W2 864, 866 (Minn. App. 1986); pet. for rev. denied (Minn. June 23, 198fi).
44 McDonald, 255 N.W.2 at 830.
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aoith �iscoGery and documents, on or about October 8, 2008, that correcfly
identified the date in question as Augusf 15, 2008.
Previously, Sergeant Schoen had been asked by DSI to verify another allegation
oP overservice of alcohol to a Mazatlan patron. 8ecause of the poor quality of the tapes,
he had only been able to verify fhat the patran had been at the bar, not whefher or not
she exhibited signs of obvious intoxication. Simifarly, in this case, Sergeant Schoen
testif+ed that the surveillance tapes would not have shown the Hispanic maie spilling
some of his beer. This evidence suggests that it would be uniikely that the August 15,
2008 tapes would show whether or not the unidentified Hispanic mafe exhibited obvious
signs of intoxication.
ln addition, Respondent aileges that it spent considerable time attempting to
piece together evidence during the month it believed the aliegations related to
August 18, 2008.
Here, the error did not raise any new issues, and, as evidenced by the e�remely
well-prepared case presented by Respondent and its counsel at the November 7& 18,
2008 hearings, there was no need for additional discovery or additional postponement
of the hearing. The ALJ was unable to discern any materiai prejudice to Respondent
due to the initial misidentification of the date of the alleged violations. The Respondent
did not meet its burden to show material prejudice.
Therefore, the ALJ had determined that it is appropriate to grant the City's motion
to consider that the Notice of Administrative Hearing has been amended to indicate the
correct date of August 15, 2008 for the aileged violations.
Conclusion
Because the City failed to prove by a preponderance of the evidence that the
unknown Hispanic male was obviousiy intoxicated on the night of August 15, 2��8,
when served one beer by the Mazatlan bartender, the Administrative Law Judge
recommends that the City dismiss this alleged violation.
Because the City did show by a preponderance of the evidence that the
Respondent failed to check the identification and wand Sergeants Schoen and Gromek
the evening of August 15, 2008, fhe Administrative Law Judge recommends that the
City atfirm this viofation and impose a fine or other appropriate adverse action.
M. K. S.
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