09-397Council F51e # d�:���
Green Sheet #,�i (}�
OF
Presented by
RESOLUTION
PAUL, MINNESOTA
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1 WI�REAS, adverse action was initiated against all licenses held by Fred R. Sande dJbla Cosmic Charlie's
2(License ID#20000000717) for the premises located at 189 Snelling Avenue North in Saint Paul, by
3 Notice of Violation dated March 13, 2004, alleging that during an inspection of the licensed premises by an
4 Environmental Heaith Inspector, multiple ashtrays were found in the basement and the smell of cigarette
5 smoke was evident in violation of Saint Paul L,egislative Codes §238.03 and §238.04(2); and
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WHEREAS, the licensee did respond to the Notice of Violation by contacting the City Attorneys
Office regazding the violation, but then failed follow up to either pay the $500.00 matrix penalty, contest
the allegation or request a public hearing; and
WF3EREAS, the Notice of Violarion stated that if the licensee failed to pay tbe $500.00 matrix
penalty, contest the allegation or reguest a public heazing by March 23, 2009, that Che matter would be
placed on the consent agenda to impose the recommended penalty; now, therefore, be it
RESOLVED, that Fred R. Sande dlbia Cosmic Charlie's is hereby ordered to pay the $500.00
matrix penalty for the presence of ashtrays on the licensed premises in violation of Saint Paul Legislative
Codes §238.03 and §238.04(2}. Payment of such penalty shal] be made within thirty days of the date of
the adoption of this resolutian.
Requested by Depaztment of:
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Adoption Certified by Cou il Secretuy
By:
Approved a Date Z � SJ
By:
Form
By:
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By:
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� Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet �
)epartmenUOffice/Council: Date initlated:
(�J'�7 y�
S � _Dept.ofSafety&Mspections � 07-APR-09 � Green Sheet NO• 306915$
� Contact Person & Phone:
i Rachel TiemeV
266-8710
Must Be on Com
15-APR-09
Doc. Type: RESOLUTION
E-Document Required: Y
Doeument Contaet: Julie Kraus
Contact Phone: 2668776
� � 1 �eytofSafety&Inspechons i ; DepartmentDireMOr ' '
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Assign i 2 iCitv Attocney , I � �
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Routing a council [------' i
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ToWI # of Signature Pages _(qip Ail Lowtions for Signature)
Approval of the attached resolufion to take adverse action against all licenses held by Fred R. Sande d/b/a Cosmic Chazlie's (License
ID#2�OOQOOQ717) for the premises located at 189 Snelling Avenue Noxth in Saint Paul.
Recommendations: Approve (A) or Reject (R):
Planning Commission
CIB Committee
Civil Service Commission
Personal Service Contracts Must Answer the Following Questions:
1. Has this persoNfirm ever worked untler a cpMract for this department?
Yes No
2. Has this person/firm ever been a city employee?
Yes No
3. Does this person/firm possess s skili not normatly possessed by any
currenf city employee?
Yes No
Explain all yes answers on separate sheet and attach to green sheet.
Initiating Probiem, Issues, Opportunity (Who, What, When, Where, Why):
During an inspection of the premises by an Environmental Health Inspector, multiple ashtrays were found in the basement and the
smell of cigazette smoke was evident in violarion of SPLC Secrions 238,03 and 238.04 (2). After notification, licensee contacted City
Attorneys Office regarding the violation but failed to Follow up by paying [he penalty, contesting the allegation or requesring a public
hearing.
Advantages if Approved:
Imposition of $500.00 matdx penalty.
Disadvantages If Approved:
pisadvantages If Not Approved:
Total Amount of
Transaction:
Fund7ng Source:
Finaneial information:
(ExplainJ
CostlRevenue Budgeted:
Activity Number:
April 1, 2Q�9 4:44 PM Page 1
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SAINT
PAUL
�
Al1AA
CITY OF SAINT PAUL
Chnstophe� H. Coleman, Mayor
OFFICE OF THE CITY ATTORNEY
John J, Choi, City At[omey
Telephan e. 651 266-877 0
Facsimile: 657 2983879
Mazch 13, 2009
Civil Drvision
400 City HaN
75 West Kellogg Blvd
Saint Paut, Minnesota 55702
NOTICE OF VIOLATION
Owner/Manager
Cosmic Cbazlie's
189 Snelling Avenue North
St. Paul, MN 55104
RE: All licenses held by Fred R. Sande d/b/a Cosmic Chazlie's for the premises iocated at
189 Snelling Avenue North in Saint Panl
License ID #: 20000000717
Deaz Sir/Madam:
The Department of Safety and Inspections (DSI) will recommend that adverse action be taken against
all of yaur licenses based on the following information:
On February 20, 2009, a DSI Inspector came to your establishment. During her
inspec6on, she noted multiple ashtrays in the basement which appeared to be used as a
hand practice space as well as a storage area. She also noted that the smell of cigarette
smoke was evidenL
This is a violation oF Saint Paul Legislative Code Chapter 238.03 which states: �moking
is prohibited in restaurants, pooZ halls, bowling centers, rent¢t h¢Zls, bingo halls and
Zicensed liquor establishments °. Also, Ch¢pter 238.04 (2) which states: 'The proprietor or
otherperson in charge nf the bar or restaurant shall: (2) ensure that ashtr¢ys, lighters and
matchbooks are nnt provided in any area where smoking is prohibited. "
This is the 6rst violafion in your establishment allowing smoldng and providing ashtrays after the smoking ban
became effective in the City of Saint Paul on March 31, 2006. Per Saint Paul Legislative Code §310.05(m)
(2), the licensing office will recommend a$500.00 matrix penalty.
At this time, you have three options on how to proceed:
You can pay the recommended $SO�.OQ matrix penalty. If this is your choice, you should make
payment directly to the Department of Safety and Inspections, at 375 Jackson Street, Suite 22Q St.
Paul, Minnesota 5510] -1806 no later than Monday, March 23, 2009. Infonnation should be directed
to the attentian of Christine Rozek. A self-addressed envelope is enciosed for yow convenience.
Payment of the penalry will be considered to be a waiver of the hearing to which you are entitled.
A a_qne_cFn c.,,..i,..,e.
Ds��7
Cosmic Chadie's
March 13, 2009
Page 2
2. If you admit the facts, 6ut contest the penalty, you may have a public heanng before the Saint Paul
City Council, you will need to send me a letter with a statement admitung the facts and xequesting a
public hearing. We wi11 need to receive your letter no later Monday, March 23, 2p09. The matter
will then be scheduled before the City Council for a public hearing to determine whether to impose the
�5�0.00 matrix penalty. You will have an opportunity to appeaz before the Council and make a
statement on your own behalf.
3. If you dispute the above facts, you can request a hearing befoxe an Administrative Law Judge. At that
hearing both you and the City will be able to appear and present wimesses, evidence and cross-
examine the other's witnesses. The St. Paul City Council will ultimately decide the case. If khis is
your choice, please advise me by Monday, March 23, 2009, and I will take the necessary steQs to
schedule the administrative hearing.
If I have not heard from you by that date, I will assume that you do not contest the imposition of
the $500.00 matrix penalty. In that case, the matter wiil be placed on the CounciPs Consent Agenda for
approval of the recommended penalty.
If you have questions about these options, please feel free to contact me at 266-8710.
Sincerely,
2��e f '.�.�
Rachel Tiemey
Assistant City Attorney
cc: Christine Rozek, Deputy Director — DSI
Fred R. Sande, 1562 Scheffer Avenue, St. Paul, MN 55116
Roger Bromander, Exec. Director, Union Park District Council, 1570 Concordia Avenue,
Ste. LL100, St. Paul, MN 55104
STATE OF MINNESOT "'
� SS.
COIINTY OF RAMSEY )
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AFFIDAVIT OF S�,_. JICE BY U S MA.IL
Julie Kraus, being first duly sworn, deposes and says that on the /�� day of March,
she served the attached NOTICE OF VIOLATION by placing a true and conect copy thereof
in an envelope addressed as follows:
Owner/Manager
Cosmic Charlie's
189 Snelling Avenue North
St. Paul, MN 55104
Fred R.Sande
1562 Scheffer Avenue
St. Paul, MN 55116
Roger Bromander, Exec. Director
Union Park District Council
1570 Concordia Avenue, Ste. LL100
St. Paul, MN 55104
(which is the last known address of said person) depositing the same, with postage prepaid, in the
United States mai] at St. Paul, Minnesota.
r
'� �� '' �
Ju � Kraus
Subscribed and sworn to before me
this / 3�- day of March, 2009
`��� � ����
Not bli�
� - --°==
RITA M. BOSSARD
NOTARY PUB�IC-MINhESOTA
MY COMMISS ION
EXPIRES JAN. 3t, 20 1 0
Chapter 238. Public Smoking in Licensed Liquor Establishments and Restaurants Page i of 4
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Chapter 238. Public Smoking in Licensed Liquor Estabiishments and Resiaurants
Sec. 238.01. Purposes and findings of fact.
The city council finds that:
Tobacco smoke
pollution. Secondhand
respiratory function ar
thousand (35,000) to s
Secondhand smoke al:
each year.
is a leading cause of disease in nonsmokers and a major source of indoor air
smoke causes heart disease, lung cancer, respiratory infections, decreased
d other health problems. Secondhand smoke kilis an estimated thirty-five
xty-two thousand (62,000) Americans each year from coronary heart disease.
o causes an estimated three thousand (3,000) lung cancer deaths in America
These effects are wel( documented, and numerous medical and scientific authorities, rncluding
the American Medical Association, the Surgeon General, the National Institute on Occupational Safety
and Health, the National Cancer Institute, the Environmentai Protection Agency, the National Academy
of Sciences, the National Toxicology Program and the World Health Organization have recognized the
deadiy effects of exposure to secondhand smoke. The proposed Framework Gonvention on Tobacco
Control, a global treaty negotiated by more than one hundred ninety (190) countries, declares that
"scientific evidence has unequivocally established that exposure to tobacco smoke causes death,
disease and disability."
There is no safe Ievel of exposure to tobacco smoke. Science has been unable to find any level
of dilution at which smoke does not cause cancer. Neither the separation of smokers and nonsmokers,
nor the introduction of new ventifation systems, can eliminate the health hazards caused by
secondhand smoke.
Employees in smoky workplaces are at special risk. One study has estimated that working in a
smoky bar for eight (8) hours is equivalent to smoking sixteen (16) cigarettes. Also at special risk are
children, eiderly peopie, and those with cardiovascular disease or impaired respiratory function,
including people with asthma and those with obstructive airway disease.
Objective evidence does not bear out the fear that elimination of public smok'tng will harm a
community's economy or resuit in a net loss of jobs in restaurants and bars. On the contrary, many
independent economic studies have shown that the elimination of smoking has no materiai economic
impact on a community. These studies are drawn from the experience of hundreds of communities that
have successfully eliminated smoking in workplaces and public pfaces. The states of California,
Connecticut, De{aware, Maine, and New York have adopted laws ending all smoking in bars,
restaurants, and other public places, as have the nations of Ireland, New Zealand and Norway.
By reducing the exposure of young people to adult smoking and unhealthy role modeling,
elimination of smoking in public places furthers the state's goai of reducing youth smoking.
There is �o legal or constitutional "right to smoke." Business owners have no legal or
constitutional right to expose their employees and customers to toxic chemicals, whether in tobacco
smoke or otherwise. On the contrary, employers have a common law duty to provide their workers with
a workplace that is not unreasonably dangerous.
Accordingly, the city council finds and declares that the purpose of this chapter is to:
(1) Protect the public health, welfare and safety by better ensuring the ability of citizens
to breathe safe and uncontaminated air;
(2) Affirm that the right to breathe has priority over the desire to smoke; and
(3) Protect vulnerabfe populations, including employees, chiidren, the elderiy and those
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Chapter 238. Public Smoking in Licensed Liquor Establishmants and Restaurants
with chronic health conditions,
(G.F. No. 05-1074, § 1, 1-11-06)
Sec.238.02. Definitions,
As used in this article:
(1) Bowling cenfers, pool hails, renta� halls and bingo
establishments licensed under chapter 322, 403, and 405 of the
Code, whether or not they are aiso a licensed liquor establishment.
Page 2 of 4
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halis means those
Saint Paul Legisiative
(2) Licensed liquor establrshment means an establishment that has an on-safe
intoxicating liquor license; an on-sale 32 percent ma(t liquor license; a wine license
andlor a strong beer license issued pursuant to chapters 409 or 410 of the Saint Paul
Legislative Code, as amended from time to time, but does not include outdoor areas and
does not include the guest rooms of a hotel or motel.
(3) Other person in charge means the agent of the proprietor authorized to perfarm
administrative direction to and generaf supervision of the activities within a bar or
restaurant at any given time.
(4) Proprietor means the party who holds the license or licenses for a bar or
restaurant. The term "proprietor" may apply to a corporation as welf as an individuai.
(5) Restaurant means an establishment that is operating under a license issued
pursuant to Legislative Code section 331A.04(d}(19), (20�, (21) or (22), as amended
from time to time, but does not include outdoor areas and does not include the guest
rooms of a hotel or motei.
(6) Smoking means the inhaling, exhaling or combustion of any cigar, cigarette, pipe,
tobacco product, weed, plant or any other similar article. "Smoking" includes possessing
or carrying a fighted cigar, cigarette, pipe or any other lighted smoking equipment.
"Smoking" does not include the use of tobacco by an enrolfed member of a federaliy-
recognized indian tribe as part of a traditio�a! Indian spiritual or cultural ceremony.
(C. F. No. 05-1074, § 1, 1-11-06)
Sec.238.03. Prohibitions.
Smoking is prohibited in restaurants, poof halis, bowling centers, rental halls, bingo hails and
ficensed liquor estabiishments.
(C.F. No. 05 § 1, 1
Sec. 238.04. Responsibilities of proprietors.
The proprietor or other person in charge of a bar or restaurant shall:
(1) Post "no smoking" signs that compfy with the Minnesota Ciean indoor Air Act Rules,
Minnesota Rules, part 4fi20.0500, as amended from time to time;
(2) Ensure that ashtrays, lighters, and matchbooks are not provided in any area where
smoking is prohibited; and
(3) Ask any person who smokes in an area where smoking is prohibited to refrain from
smoking and, if the person does not refrain from smoking after being asked to do so, ask
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Chapter 238. Public Smoking in Licensed Liquor Establishments and Restaurants Page 3 of 4
l/-�i � �7
the person to leave. ff the person refuses to leave, the proprietor or person in charge ot
the bar or restaurant shall contact the police department and ask that the person be
trespassed from the estabiishment.
(C. F. No. 05-1074, § 1, 1-11-06)
Sec. 238.05. Additional private prohibitions.
Nothing in this chapter prevents the proprietor or other person in charge of any place, including,
without limitation, any outdoor space, from prohibiting smoking in any such place.
(C.F. No.65-1074, § 1, 1-11-06)
Sec. 238.OS. Retaliation prohibited.
No person or employer shall discharge, refuse to hire, or in any man�er retaliate against, a�y
employee, app�icant for employment, or customer because the empfoyee, appficant or customer
exercises any right to a smoke-free environment afforded by this chapter or other law.
(C. F. No. 05-1074, § 1, 1-11-06)
Sec. 238.07. Employee's rights preserved.
An employee who consents to work in a setting where an empfoyer allows smoking does not
waive or otherwise surrender any legal rights the empfoyee may have against the employer or any
other party.
(C. F. No. 05-1074, § 1, 1-� 1-06)
Sec. 238.08. Other applicabfe laws.
This chapter is intended to complement and go beyond the Minnesota Ciean Indoor Air Act,
Minnesota Statutes §§144.411 to 144.417, as amended from time to time. Nothing in this chapter
authorizes smoking in any location where smoking is prohiblted or restricted by other faws.
(C.F. No. 05-1074, § 1, 1-11-06)
Sec. 238.69. Violation and penalties.
(a) Proprietors. It is a violation of this chapter for the proprietor to fail to comply with the
requirements of section 238.04, or to retaliate against an empioyee, applicant for employment or
customer, as prohibited by section 238.06.
(b) Penaities. Failure to comply with the requirement of this chapter shall be a 6asis for
adverse action under Saint Paul Legislative Code § 310.06(b)(7).
(c) A violation of any provision of this chapter shall be considered a violation of the provisions
01 the legislative code relating to the licensed activity under § 310.05(m)(2) and shail be
punishabfe accordingly under that section.
(G F. No. 05-1074, § 1, 1-} 1-06)
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Chapter 238. Public 3moking in Licensed Liquor Establishments and Restaurants Page 4 of 4
Sec.238.10. Severability.
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If any portion of this chapter, or its application to any circumstances, is held invalid, the
remaining provisions shall be considered severable, and shall be given effect to the maximum extent
possible.
(C.F. No. 05-1074, § 1, 1-11-06)
//St. Paul, Minnesota/CODE OF ORDINANCES City of SAINT PAUL, MINNESOTA
Codified through Council File No. U8-1210, adopted Nov. 26, 2008. (Supplement No.
76)lTiile XXIiI PUBLIC HEALTH, SAFETY AND WELFAREIChapter 238. Public Smoking in
Licensed Liquor Establishments and Restaurants
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Chapter 310. Uraiform License Procedures Page i of 3
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(m) Presumptive penaities fo� certain violations. The purpose of this section is to establish a
standard by which the city council determines the amount of fines, the length of iicense
suspensions and the propriety of revocations, and shall apply to all license types, except that in
the case of a violation involving a fiquor license § 409.26 shall apply where a specific violaiion is
listed. These penaities are presumed to be appropriate for every case; however the counci{ may
deviate therefrom in an individual case where the council finds and determines that there exist
substantial and compelling reasons making it more appropriate to do so. When deviating from
these standards, the council shail provide written reasons that specify why the penalty selected
was more appropriate.
TASLE INSET:
Type of Violation
Appearance
1st 2nd 3rd 4th
(1) Violations of conditions $500.00 fine $1,000.00 �2,OQ0.00 fine Revocation
placed on the license fine and 10-day
suspension
(2) Violation of provisions of $500.00 fine $2,000.00 fine
the legislative code retating $7,000.00 and 10-day Revocation
to the licensed activity fine suspension
(2) Violation of provisions of
the legisfative code relating $2,000.00 fine
to the licensed activity, $500.00 fine $1,000.00 and 10-day Revocation
other than violations of the fine
food code suspension
(3) Failure to permit 5-day 10-day 15-day Revocation
entrance or inspection by suspension suspension suspension
LIEP inspector or police
(4) Commission of a crime
other than a felony on the $�00.00 $1,500.00 5-day Revocation
premises by a licensee or suspension
employee
(5) Commission of a felony
on the premises by a $2,0OO.Op Revocation n/a n/a
licensee or employee
{6) Death or great bod'+ly 30-day 60-day
harm in establishment suspension suspension Revocation n/a
related to violation of law or
license conditions
(7) Failure to pay license Revocation
fees
(8) Critical violations under $1,000.00, 5- Revocation
331A $250.�0 $500.00 day
suspension
(9) Non-critical violation $�50.06 $250.00 $500.00 $1,000.00
under 331A
(i) Fines payable without hea�ing .
A. Notwithstanding the provisions of section 310.05(c), a licensee who would be
making a first or second appearance before the council may elect to pay the fine
to the Department of Safety and Inspections without a council hearing, uniess the
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Chapter 310. Uniform License Procedures
Page 2 of 3
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notice of violation has indicated that a hearing is required because of
circumstances which may warrant deviation from the presumptive fine amount.
Payment of the recommended fine will be considered to be a waiver of the
hearing to which the licensee is entitled, and will be considered an "appearance"
for the purpose of determining presumptive penalties for subsequent violations.
B. For adverse action initiated under Chapter 331A of this Code, a fine may be
paid without a hearing regardless of how many prior appearances that licensee
has made before the Council. The above council hearing requirement applies to
violations under Chapter 331A unless the fine recommended by the Department
of Safety and inspections is equal to or (ess than the fine amount outlined i� the
above matrix. Payment of the recommended fine will be considered to be a
waiver of the hearing to which the licensee is entitied, and will be considered an
"appearance" for the purpose of determining presumptive penalties for
subsequent violations. A non-critical violation under chapter 331A shall not be
considered an "appearance" for purposes of determining presumptive penalties
for noh-331A violations. A counoil hearing is required if the Department of Safety
and Inspections recommends a fine that is an upward departure for the amount
outlined above.
(ii) Multiple violations. At a licensee's first appearance before the city council, the
council shall consider and act upon all the viofations that have been alieged and/or
incorporated in the notices sent to the licensee under the administrative procedures act
up to and including the formal notice of hearing. The council in that case shali consider
the presumptive penafty for each such violation under the "1st Appearance" column in
paragraph (b) above. The occurrence of multiple violations shall be grounds for
departure from such penalties in the councif's discretion.
(iii) Violations occurring after the date of the notice of hearing. Violatfons occurring
after the date of the notice of hearing that are brought to the attention oF the city attorney
prior to the hearing date before an administrative law judge (or before the council in an
uncontested facts hearing) may be added to the notice(s) by stipulation if the licensee
admits to the facts, and shall in that case be treated as though part of the "ist
Appearance." in all other cases, violations occurring after the date of the formal notice of
hearing shall be the subject of a separate proceeding and dealt with as a"2nd
Appearance" before the council. The same procedures shall apply to a second, third or
fourth appearance before the council.
(iv) Subsequent appearances. Upon a second, third or fourth appearance before the
council by a particular licensee, the council shall impose the presumptive penalty for the
violation or violations giving rise to the subsequent appearance without regard to the
particular violation or violations that were the subject of the first or prior appearance.
However, non-critical violations of Chapter 331A shall not be counted as an
"appearance" before the Council in relation to any violation other than another violation
of Chapter 331A.
(v) Computation of time,
{1) If a licensee appears before the council for any violation in paragraph (m)
where that viofation has occurred within iwelve (12) calendar months after the
first appearance of the same ficensee for a violation listed in paragraph (m)
above, the current appearance shall 6e treated as a second appearance for the
purpose of determining the presumptive penaity.
(2j If a licensee has appeared before the council on two (2) previous occasions
for violations listed in paragraph (m), and if said licensee again appears before
the council for a violation listed in paragraph (m), and if the current violation
occurs within eighteen (18) calendar months of the violation that gave rise to the
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Chapter 310. Uniform License Procedures
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Page 3 of 3
first appearance before the council, then the current appearance shall be treated
as a third appearance for the purpose of determining presumptive penalty.
(3) If a licensee has appeared before the council on three (3) prev+ous
occasions, each for violations listed in paragraph (m), and if said licensee again
appears before the council for a viofation contained in paragraph (m), a�d if the
current violation occurred within twenty-four (24) cafendar months of the vioiation
that gave rise to the first appearance, then the current appearance shall be
treated as a fourth appearance for the purpose of determining the presumptive
penairy.
(4) Any appearance not covered by subsections (1), (2) or (3) above shall 6e
treated as a first appearance. In case of multipfe violations in any appearance,
the date to be used to measure whether tweive (12), eighteen (18), or twenty-four
(24) months have elapsed shall be the date of the violation Iast in time at the first
appearance, and the date of the violation first in time at any subsequent
appearance.
(5) Notwithstanding subsections (iv)(1), (2}, (3) or (4) above, a second
appearance before the council regarding a death or great bodily harm in a
licensed establishment that is related to a violation of the law or license
conditions shali be counted as a second appearance, regardless of how much
time has passed since the first appearance if the first appearance was also
regarding a death or great bodily harm in a licensed estabVishment. A third
appearance for the same shall be counted as a third appearance regardfess of
how much time has passed since the first or second appearance.
(Code 1956, § 510.05; Ord. No. 17551, § 2, 4-i9-88; Ord. No. 17559, §§ 1, 2, 5-17-88; Ord. No. 17659,
§ 1, 6-13-89; Ord. No. 17911, § 1, 3-10-92; C.F. No. 94-46, § 7, 2-2-94; C.F. No. 94-898, §§ 2, 3, 7-13-
94; C.F. No. 94-1340, § 2, 10-19-94; GF. No. 85-473, § 4, 5-31-95; C.F. No. OS-180, § 1, 4-6-05; GF.
No. 06-954, § 1, 11-8-06; C.F. No. 06-1072, § 1, 12-27-06; C.F. No. 07-149, § 73, 3-28-07; C.F. No. 07-
1053, § 1, 11-28-07)
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