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09-693Council �le # D � �P 3 Green Sheet # CITY 2 3 4 5 6 7 Presented by RESOLUTION SAINT,PAUL, MINNESOTA �3 WHEREAS, adverse action was taken against the Restaurant (4) 51-150 Seats license held by Mabuhay, Inc. d/b/a Mabuhay (License ID#20090000017) for the premises located at 1825 University Avenue West in Saint Paul, by Notice of Violation dated June 3, 2009, alleging licensee was cited for two (2) Critical-Major and one (1) Critical-Minor Environmental Health Code violations during a re-inspection on May 19, 2009, in violation of Minnesota Administrative Rules parts 4626.0385, 4626.0395 and 4626.0235; and 8 WHEREAS, per Saint Paul L,egislative Code §310.05 (m) (9), the licensing office recommended a 9$650.00 matrix penalty and suspension of their Restaurant (4) 51-150 Seats license until the violations 10 were conected; and 11 12 WHEREAS, the licensee did not respond to the Notice of Violation to pay the $650.00 matrix 13 penalty or contact the Environmental Health Inspector for a re-inspection to verify the violations had been 14 corrected; and 15 16 WHEREAS, the Notice of Violation stated that if the licensee failed pay the $650.00 matrix and 17 contact the Environmental Health Inspector for a re-inspection by June 15, 2009, that the matter would be 18 placed on the consent agenda to impose the recommended penalty; now, therefore, be it 19 20 21 22 23 24 RESOLVED, that the Restaurant (4) 51-150 Seats license held by Mabuhay, Inc. d/b/a Mabuhay is hereby suspended until the two (2) Critical-Major violations and one (1) Critical-Minor violation cited during the May 19, 2009 re-inspection are corrected. The licensee is also ordered to pay a matrix penalty of $650.00. Payment of such penalty shall be made within thirty days of the date of the adoption of this resolution. Requested by Department of: �a..�:�C, a-�. �, �-� ae.c.t.ur s Bv 4. � /ul,�-� For roved by City Attorney �--(, BY� � ,l� I �,e�b�� Adopted by Councii: Date �----� � � Adoption Certified by Counci] retary Form pp ved by yor for t issio o Council BY� .i��� By: Appro by M yor: ate � By: � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet DepartmentlOffice/Council: I Date Initiated: �� J lX `� S� _Dept.ofSafety�lnspections 1S-JUN-09 Green Sheet NO: 3071770 Confad Person & Phone: Rachel Tiemev 266-8710 Must Be on Council Agenda by (Da1 01-JUL-09 � � ��-4- )oc. Type: �SOLUTION E-�ocument Required: Y Document Contact: Julie Kraus Contad Phone: 26&8776 � 0 �epk of Safetv & Inspections � � I i ept of Safetv & Inspections I De artment Director Assign 2 CSriAttornev I Number 3 or's Oi'fice Mavor/Assishant i Por Routing 4 Council � i Order 5�tv Clerk G�� 'tv Clerk � Total # of Signature Pages _(Clip All Locations for Signature) Approval of the at[ached resolufion to take adverse action against the Restaurant (4) 51-150 Seats license held by Mabuhay, Inc. d/b/a Mabuhay (License ID#20090000017) for the premises located at 1825 Universiry Avenue West in Saint Paul. Recommendations: Approve (A) or Reject (R): Planning Commission CIB Committee Civil Service Commission Personal Service Contreds Must Answer the Following Questions: 1. Has this person/firtn ever worked under a contract for this department? Yes No 2. Has this person/firm ever been a city employee? Yes No 3. Does this person/firm possess a skill not normally possessed by any wrrent city employee? Yes No Explain all yes answers on separate sheet and attach to green sheet. �� � Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why): Licensee was cited for rivo (2) Critical-Major and one (1) Crifical-Minor Environmental Health Code violations at a re-inspecrion on May 19, 2009, in violarion of Minnesota Administrative Rules parts 4626.0385, 4626.0395 and 4626.0235. Afrer notification, licensee did not respond to the Notice of Violarion. Advantages If Approved: License suspension and imposition of $650.00 matrix penalty. Disadvantages If Approved: Disadvantages If Not Approved: Total Amount of Trensaction: Funding Source: Financiai Information: (Explain) CostlRevenue Budgeted: Activity Number: June 18, 2009 239 PM Page 1 ��'�q� OFFICE OF THE CITY ATTORNEY John J. Choi, City Attomey SA[NY PAUL � AAAA CITY OF SAINT PAUL ChnstopherB. Coleman, Mayor June 3, 2009 Jovy Krahn Mabuhay 1825 University Avenue West St. Paul, MN 55104 RE: Restaurant (4) 51- I50 Seats licenses held by Mabuhay, Inc. d/b/a Mabuhay for the premises located at 1825 University Avenue West in Saint Paul LicenseID #20090000017 Deaz Jovy Krahn: The Department of Safety and Inspections (DSI) will recommend adverse action against the Restaurant (4) 51- 150 Seats licenses held by Mabuhay, Inc. d/b/a Mabuhay for the premises located at 1825 University Avenue West in Saint Paul. The basis for the recommendation is as follows: On March 19, 2009, the Department of Safety and Inspections (DSI) — Environmental Health Division conducted an inspection of your establishment and cited you for four (4) CRITICAL —Minor violations one of which was: raw animal foods lacks adequate separation from ready-to-eat foods (raw ground beefstored next to coleslaw in the rain and three (3) CRITICAL — Major violations two of which were: 1) cold food not maintained at 41 degrees Fahrenheit or less (spaghetti sauce 44° F and ribs 44° F� and 2) potentially hazardous foods are not being cooled within the required time period (cooked shredded chicken 97°F in the reach-in cooler. The cook said it had been made that morning more than two hours before the inspection). On March 23, 2009, DSI sent you a Notice of New Critical Violations listing all the violation and explaining that they needed to be corrected. You were then informed that a re-inspection would take place on or after April 18, 2009. On April, 2009, the Environmental Health Division of DSI conducted a re-inspection and cited you for one (1) CRITICAL-Minor violation and two (2) CRITICAL —Major violations that had not been corrected by the Apri118, 2009 deadline: Minor violation: raw animal foods lack adequate separation from ready-to-eat foods (raw ground beef stored next to ready-to-eat foods —sandwich toppings on the prep rail and bits of raw beef were on the cutting board of the prep cooler). Major violations: 1) cold food not maintained at 41 degrees Fahrenheit or less (reach-in cooler: whole ham 46°F, mashed potatoes 52° F, gravy 50° F, BBQ sauce 44° F, beaten egg for French toast 44° F. Prep cooler: colesl¢w 44° F in the rai� raw ground beef 52° F in the rail, mayo 46° F in rail, Civil Division 400 City Hafl 15 Wesi Kellogg Blvd. Saint Paul, Minnesota 55102 NOTICE OF VIOLATION Telephone: 651 266-87 7 0 Facsimile: 651 298-5619 Affirmative Action Equal Opportunitv Emnlover Mabuhay June 3, 2009 Page 2 ���(�q fzsh 44° F lower portion and tartar sauce 44° F Zower portion) and 2) potentially hazardous foods are not being cooled within the required time period (reach-in cooler: mashed potatoes dated 4/29/09 at 52° F, gravy dated 4/29/09 at 46° F and a whole ham at 46° F no date). You were then sent a 2 Notice of Critical —Minor Violation after the Apri130, 2009 re-inspection regarding 1) raw animal foods lack adequate separation from ready-to- eat foods (raw ground beef stored next to ready-to-eat foods— sandwich toppings on the prep rail and bits of raw beef were on the cutting board of the prep cooler). You were then told another inspection would be conducted on or after May 15, 2009. On May 19, 2009, the Environmental Health Division of DSI conducted a second re- inspection and cited you for the same two (2) CRITICAL-Major viola6ons: 1) cold food not maintained at 41 degrees Fahrenheit or less (reach-in cooler: mashed potatoes 46° F, meatbal[s 46° F, ribs 45 ° F and hoZlandaise 46 ° F. Prep cooler: coleslaw 50° F in the rail, raw ground beef 48° F in lhe rail, inayo 67° F in rail, sliced tomato 65 °F in rail) and 2) potentially hazardous foods are not being cooled within the required time period (reach-in cooler: mashed potatoes dated 5/l7/09 at 46° F and ribs dated 5/Z7/09 at 45° F) and one CRITICAL-Minor violation: raw animal Foods lack adequate separation from ready-to-eat foods (raw ground beef stored next to ready-to-e¢t foods- sandwich toppings on the prep rail and bits of raw beef were on the cutting board of the prep cooler.) These are violations of Minnesota Administrative Rules: 1) Part 4626.0385: "Cool potenti¢Zly hazardous food: I) from I40 degrees Fahrenheit to 70 degrees Fahrenheit within two hours; and 2. from 70 degrees Fahrenheit to 4l degrees Fahrenheit or below, within four hours to prevent microbial growth in the food."; 2) Part 4626.0395: "Immediately, maintain all cold readily perishable food at 4l degrees Fahrenhei[ or [ess." and 3) Part 4626.0235: "Provide adequate separation to prevent cross-contamination between raw ¢nimal foods and raw ready-to-eat foods during storage preparation, holding and display." As per Saint Pau] Legislative Code §310.05 (m) (9), the licensing office will recommend a$650.00 matrix penalty and suspension of your Restaurant (4) 51- 150 Seats license unril the violations have been corrected. At this time, you have three opqons on how to proceed: You can correct the violations and pay the recommended $650.00 matrix penalty. If [his is your choice, please send [he payment to the Department of Safety and Inspections (DSI) at 375 Jackson Street, Ste. 220, St. Paul, Minnesota 55101-1806 no later than Monday, June 15, 2009. Payment should be directed to the attention of Christine Rozek. A self-addressed envelope is enclosed for your convenience. Payment of the $650.00 matrix penalty and correction of the violations will be considered a waiver of the hearing to which you are entitled. You will also need to contact Kim Carlton: Environmental Health Snecialist at (6511266 9090 to schedule an insnection to verifv that the violations have been corrected if the violations have not been corrected, the matter will then be olaced on the Citv Council Consent Aeenda for susnension of vour Restaurant (4) 51- 150 Seats license Affirmative Action Eaual Onnortunitv F.mnlnver Mabuhay 7une 3, 2009 Page 3 o� -�9� 2. If you wish to admit the facts but contest the penalty, you may have a public hearing before the Saint Paul City Council, you will need to send me a letter with a statement admitting che facts and requesting a public hearing. We will need to receive your letter by Monday, June 15, 2009. The matter will then be scheduled before the City Council for a public hearing to determine whether to impose the �650.00 mahix penalty and suspend your license. You will have an opportunity to appear before the Council and make a statement on your own behalf. 3. If you dispute the above facts, you can request a hearing before an Administrative Law Judge. At that hearing both you and the City will be able to appear and present witnesses, evidence and cross- examine each others wimesses. The St. Paul City Council will ultimately decide the case. If this is your choice, please advise me no later than Monday, June 15, 2009, and I will take the necessary steps to schedule the administrative hearing. If you have not contacted me by that date, I will assume that you are not contesting the imposition of the $650.00 matrix penalty and suspension of your Restaurant (4) 51- 150 Seats license. In that case, the matter will be placed on the City Council Consent Agenda for approval of the recommended penalty. If you have questions about these options, please feel free to contact me at 2b6-8710. Sincerely, `: L Gt (�,�; 0 Rachel Tierney � Assistant City Attomey ca Christine Rozek, Deputy Director of DSI Bill Gunther, Environmental Healih Manager Jovy Krahn, 3540 — 13 Avenue South, Minneapolis, MN 55407 Jun-Li Wang, Community Organizer, Hamline Midway Coalition, 1564 Lafond Avenue St. Paul, MN 55104-1832 Affirmative Action Eaual Onnnrtunitv F.mnl�ver STATE OF MINNESOT ' ' � ss COUNTY OF RAMSEY ) D°� � �v�I � Julie Kraus, being first duly swom, deposes and says that on the � day of June, she served the attached NOTICE OF VIOLATION placing a true and correct copy thereof in an envelope addressed as follows: Jovy Krahn Mabuhay 1825 University Avenue West St. Paul, MN 55104 Jovy Krahn 3540 — 13` Avenue South Minneapolis, MN 55407 Jun-Li Wang, Community Organizer Hamline Midway Coalition 1564 Lafond Avenue St. Paul, MN 55104-1832 (which is the last known address of said person) depositing the same, with postage prepaid, in the United States mail at St. Paul, Minnesota. 1� Julie us Subscribed and sworn to before me this �= � day of June, 2009 �� �{� °'—' - �`<-s ��-�� 2 Notary Public AFFIDAVIT OF SE;.. JICE BY U.S. MAIL RITA M. BOSSARD NOTARY PUBLIC • MMPIESOTA MY COMMISSiON �.'�` EXPIRES JAN 51 201 G � . _ _ .,vvr--i:. Oq'(��3 � I:�:►�/6Y17 7 4626.0385 4626.0385 3-501.14 COOLING.* A. Cooked potentially hazardous food shall be cooled: (1) from 60 degrees C(140 degrees F) to 21 degrees C(70 degrees F) within two hours; and (2) from 21 degrees C(70 degrees F) to 5 degrees C(41 degrees F) or below within four hours. B. Potentially hazardous food shall be cooled to 5 degrees C(41 degrees F) or below within four hours if prepared from ingredients at ambient temperature, including reconstituted foods and canned tuna. C. A potentially hazardous food received in compliance with laws allowing a temperature above 5 degrees C(41 degrees F) during shipment from the supplier shall be cooled to 5 degrees C(41 degrees F) or below within four hours. Statutory Authority: MSs 31.101; 31.11; 144.05; 144.08; 144.12; 157.011 History: 23 SR 519 Posted: October 11, 2007 Copyright �02009 by the Revisor of Statutes, State of Minnesota. All Rights Reserved. � 1 / V 1 � 1 REVISOR 4626.0395 4626.0395 3-50116 POTENTIALLY HAZARDOUS FOOD; HOT AND COLD HOLDING.* Except during preparation, cooking, or cooling, or when time is used as the public health control as specified in part 4626.0410, potentially hazazdous food shall be maintained: A. at 60 degrees C(140 degrees F) or above, except that roasts cooked to a temperature and for a time specified in part 4626.0340, item B, may be held at a temperature of 54 degrees C(130 degrees F); or B. at 5 degrees C(41 degrees F) or below under mechanical refrigeration, except as specified in part 4626.0405, item B. Statutory Authority: MSs 31.101; 31.11; 144.05; 144.08; 144.12; 157.011 History: 23 SR 519 Posted: October 11, 2007 Copyright 02009 by the Revisor of Stamtes, State of Minnesota. Al] Rights Reserved. 1 REVISOR ��� � V '� 4626.0235 4626.0235 3-302.11 PACKAGED AND UNPACKAGED FOOD; SEPARATION, PACKAGING, AND SEGREGATION * A. Food shall be protected from cross-contamination by: (1) separating raw animal foods during storage, preparation, holding, and display from: (a) raw ready-to-eat food including fish for sushi, molluscan shellfish, or other raw animal food, and vegetables; and (b) cooked ready-to-eat food; (2) except when combined as ingredients, separating types of raw animal foods from each other during storage, preparation, hoiding, and display by: (a) one of the following: i. using separate equipment for each type of food; or ii. arranging each type of food in equipment so that cross-contamination of one type with another is prevented; and (b) preparing each type of food at different times or in separate areas; (3) cieaning equipment and utensils as specified in part 4626.0845, item A, and sanitizing as specified in part 4626.0905; (4) except as specified in item B, storing the food in packages, covered containers, or wrappings; (5) cleaning hermetically sealed containers of food of visible soil before openmg; (6) protecting food containers that aze received packaged together in a case or ovenvrap from cuts when the case or ovenvrap is opened; (7) storing damaged, spoiled, or recalled food being held in the food establishment as specified in part 4626.1505; and (8) separating fruits and vegetables, before they are washed as specified in part 4626.0255, from ready-to-eat food. B. Item A, subitem (4), does not apply to: (1) whole, uncut, raw fruits and vegetables and nuts in the shell that require peeling or hulling before consumption; (2) primal cuts, quarters, or sides of raw meat or slab bacon that are hung on clean, sanitized hooks or placed on clean, sanitized racks; Copyright �02009 by the Revisor of Statutes, State of Mmnesota. All Rights Reserved. 2 REVISOR ������ 4626.0235 (3) whole, uncut, processed meats including country hams and smoked or cured sausages that are placed on clean, sanitized racks; (4) food being cooled as specified in part 4626.039�, item B, subitem (2); or (5) shellstock. Statutory Authority: MS s 31.101; 31.11; 144.05; 144.08; 144.12; 157.011 History: 23 SR 519 Posted: October 11, 2007 Copyright �2009 by the Revisor of Statutes, State of Minnesota. All Rights Reserved. Chapter 310. Uniform Licen� �'rocedures �,��3 Page 1 of 3 (m) Presumptive penalties for certain vio/ations. The purpose of this section is to establish a standard by which the city council determines the amount of fines, the length of license suspensions and the propriety of revocations, and shall apply to all license types, except that in the case of a violation involving a liquor license § 409.26 shall apply where a specific violation is Iisted. in the case of an adverse action filed for a violation of chapter 331A, the licensee shall be given a fine for each individual violation of § 331A. The total fine amount for violations of § 331A may exceed the maximum fine outlined below due to multiple violations in one (1) appearance. All penalty recommendations for chapter 331A violations shall be based on the food penalty guideline referred to in chapter 331A. These penalties are presumed to be appropriate for every case; however the councii may deviate therefrom in an individuai 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 shall provide written reasons that specify why the penaity selected was more appropriate. TABLE INSET: Appearance Type of Violation 1st 2nd 3rd 4th (1) Violations of conditions $500.00 fine $1,000.00 $2,000.00 fine Revocation placed on the license fine and 10-day suspension (2) Violation of provisions of $2,000.00 fine the legislative code relating $500.00 fine $1,000.00 and 10-day Revocation to the licensed activity fine suspension (3) Violation of provisions of the legislative 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 suspension food code (4) Failure to permit 5-day 10-day 15-day Revocation entrance or inspection by suspension suspension suspension DSI inspector or police (5) Commission of a crime other than a felony on the 5-day Revocation premises by a licensee or $�00,00 $1,500.00 suspension employee (6) Commission of a felony on the premises by a $2,000.00 Revocation n/a n/a licensee or employee (7) Death or great bodily 30-day 60-day harm in establishment suspension suspension Revocation n/a related to violation of law or license conditions (8) Failure to pay license Revocation fees (9) Critical violations under $1,000.00, 5- Revocation 331A $250.00 $500.00 day suspension (10) Non-critical violation under331A $150.00 $250.00 $500.00 $1,000.00 (i) Fines payable without hearing . htt„•//l;l,r�,�,d ro,,,+;nnAa �.,w,/dd7�Tn�V;A..,/7 nn�7 n/'17 vZ 7 ov7,:�;.e-2 � n nc. cn ni�nnn Chapter 310. Uniform Licen� �'rocedures D�-(�K3 Page 2 of 3 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, unless the 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 less than the fine amount outlined in the above matrix. Payment of the recommended fine wiil 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. A non-critical violation under chapter 331A shafl not be considered an "appearance" for purposes of determining presumptive penalties for non-331A violations. A council hearing is required if the Department of Safety and Inspections recommends a fine that is an upward departure for the amount outlined above. (ii) Mu/tiple violations. At a licensee's first appearance before the city council, the council shail consider and act upon all the violations that have been alleged 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 shall consider the presumptive penalty 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 penaities in the council's discretion. (iii) Violations occurring after the date of the notice of hearing. Violations 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 "1st 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 violation has occurred within twelve (12) calendar months after the first appearance of the same licensee for a violation listed in paragraph (m) above or section 409.26, the current appearance shall be treated as a second appearance for the purpose of determining the presumptive penalty. (2) If a licensee has appeared before the council on two (2) previous occasions Chapter 310. Uniform Licen� �'rocedures ��'�� Page 3 of 3 for violations listed in paragraph (m) or section 409.26, 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 first appearance before the council, then the current appearance shall be treated as a third appearance for the purpose of determining presumptive penaity. (3) If a licensee has appeared before the council on three (3) previous occasions, each for violations listed in paragraph (m) or section 409.26, and if said licensee again appears before the council for a violation contained in paragraph (m), and if the current violation occurred within twenty-four (24) caiendar months of the violation 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 penalty. (4) Any appearance not covered by subsections (1), (2) or (3) above shall be treated as a first appearance. In case of multiple violations in any appearance, the date to be used to measure whether twelve (12}, eighteen (18), or hventy-tour (24) months have elapsed shall be the date of the violation last 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 shall 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 establishment. A third appearance for the same shall be counted as a third appearance regardless of how much time has passed since the first or second appearance. (Code 1956, § 510.05; Ord. No. 17551, § 2, 4-19-88; 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; C.F. No. 95-473, § 4, 5-31-95; C.F. No. 05-180, § 1, 4-6-05; C.F. 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; C.F. No. 08-1208, § 1, 12-17-08)