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10-66Council N�le # 0 �(jJ (� Green Sdeet # '�j�) �{ ' �j'� OF Presented by MINNESOTA l� 1 WHEREAS, adverse astiop���t'aken against alllicenses held by GKTC Corp., d/b/a The Lucky 2 Foxx Baz & Grill (License ID#20030005015) for the premises located at 731 Randolph Avenue in Saint 3 Paul by Notice of Violation dated December 16, 2009, alleging licensee purchased alcohol from another 4 retailer for the purpose of resale in violation of Minn. Stat. §340A.415; and WHEREAS, per Saint Paul I,egislative Code §310.05(m)(2), the licensing office recommended a $500.00 matrix penalty; and WHEREAS, licensee did not respond to the Notice of Violation to pay the $500.00 matrix penalty 10 or request a hearing; and 11 12 WHEREAS, the Notice of Violation stated that if the licensee failed to pay the $500.00 matrix 13 penalty or request a hearing by December 28, 2009, that the matter would be placed on the consent agenda 14 to impose the recommended penalty; now, therefore, be it 15 16 RESOLVED, that GKTC Corp., d/b/a The Lucky Foxx Bar & Gril] is ordered to pay a matrix 17 penalty of $500.00 for purchasing alcohol from another retailer for the purpose of resale in violation af 1 S Minn. Stat. §340A.415. Payment of such penalty shall be made within thirty days of the date of the 19 adoption of this resolution. Bostrom Cazter Harris Adopted by Council: Date Yeas 13ays Absent Reques by Depaztment of: � �'E/ � �.AL � l/Yt� Adoption Certifie by Coyacil Secretazy ! BY ` /� Approv by ay Date L Z� fU By: ° � �� ; �.. Form Approv by City Atorne� By: c/�� 1 � � .' Form Ap rov by ay for Su ni ion to Council By: � � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � i DepartrneM/Office/Council: ! Date Initiated: � ` D/ � � � 5 _Depf.ofSafety&fnspec[ions I 11JAN2010 � Green Sheet NO: 3094977 � Contact Person & Phone: � Virqinia D. Palmer 266-8710 �; Must Be on Council Agenda by ; 2a�aN-� o/ r:.-,� n� � i Doa Type: RESOLUTIOP! � — _ E•DOCUment Required: Y DocumeM Corrtack Julie Kraus Contact Phone: 26SS776 � ■�► ' ° � 1 � Assi9n i 2 F Number For 3 �� Routing ��I 4 Ofder + 5 ToWi # of Signature Pages _(qip All Locatians for Signature) Action Requested: Approval of the attached resolution to take adverse action against all licenses held by GKTC Corp, dlbfa The Lucky Fo�c Bar & Grill {License ID#20030005015) for the premises located at 731 Randolph Avemie in Saint Paul. Recommendations: Approve (A) or Reject (R): Planning Commission GIB Committee Civil Service Commission Personal5ervice Contracts Must Answer the Following Questions: 1. Has this person/firm ever worked under a contract for this depaRment? Yes No 2. Has this personlfirm ever been a city employee? Yes No 3. Dces this person/firm possess a skill not normally possessed by any current city employee? Yes No Explain ali yes answers on separate sheet and attach to green sheet. Initiating Problem, lssues, Opportunity (Who, What, When, Where, Why): Licensee purchased alcohol from another retailer for the purpose of resale in violafion of Minn. Stat. Section 340A.415. Afrer notification, licensee did not respond to the Notice of Violation. AdvanWges If Approved: Imposition of $500.00 matrix penalty. Disadvantages If Approved: Disadvantages If Not Approved: Total qmount of Transactian: Funding Source: Financial Information: (Expiain) CostlRevenue Budgeted: Activity Number: January 11, 2010 11:13 AM Page 1 OFFICE �. THE CITY ATTORNEY John J. Choi, CityAttomey jo-C�t.� SAfNT "^°L CITY OF SAINT PAUL � Civil Division Chnstophe� B. Colemaq Mayor 400 Ci7y HaD Telephone: 657 266-8710 15 West Kellogg Blvd. Facs�mile: 657 298-5879 AAAA Saint Paul, Minnesota 55702 December 16, 2009 NOTICE OF VIOLATION Gloria Caselius The Lucky Foxx Bar & Grill 731 Randolph Avenue St. Paul, MN 55102 RE: All licenses held by GKTC Corp., d!b(a The Lucky Foxx Baz & Grill for the premises located at 731 Randolph Avenue in Saint Paul License ID #: 20030005015 Dear Ms. Caselius: The Depaztment of Safety and Inspections will recommend that adverse action be taken against ali licenses held by GKTC Corp., d/b/a The Lucky Foxx Bar & Grill for the premises located at 731 Randolph Avenue in Saint Paul. The basis for the recommendation is based on the following information: On October 22, 2009, a Special Agent for the Department of Public Safety Alcohol & Gambling Division came to your establishment for an inspection. During the inspection, he discovered that you were delinqueot in your taxes since April of 2009 and that you purchased alcohol from another retailer for the purpose of resale in violation of Minn. Stat. §340A.415. On November 2, 2004, you were sent a NOTICE OF AGENCY ACTION from the Department of Public Safety Alcohol & Gambling Aivision regarding this violation and stating that they were imposing a civil �ne in the amount of $200.00. You were given until November 22, 2009 to pay the $200.00 �ne. On November 24, 2009, St. Paul Police received information from the Department of Public Safety Alcohol & Gambling Division regarding this violation (CN 09-250-227). The information was then sent to the Department of Safety and Inspections for possible adverse action. Based on tl�is information, per Saint Paul I.egislative Code §310.Q5(m) (2) the licensing office will recommend a$500.00 matrix penalty. Affirmaqve Ac[ion Equa] Opportunity Empioyer The Lucky Foxx Baz & G December 16, 2fl09 Page 2 At this time, you have three options on how to proceed: (C�—Ce � 1. You can pay the recommended $500.00 matrix penalty. Tf this is your choice, you should make payment directly to the Department of Safety and Inspections at 375 Jackson Street, Suite 220, St. Paul, Minnesota 55101-1806 no later than Monday, December 28, 2009. Information should be directed to the attention of Christine Rozek. A self-addressed envelope is enclosed for your convenience. Payment of the fine will be considered to be a waiver of the heazing to which you aze entitled. 2 If you wish to admit the facts but contest the penalty, you may have a public heazing before tbe Saint Paul City Council, you will need to send me a letter wiCh a statement admitting the facts and requesting a public hearing. We will need to receive your letter by Monday, December 28, 2009. The matter will then be scheduled before the City Council for a public hearing to determine whether to impose the $500 matrix penalty. You wi11 have an opportunity to appear before the Council and make a statement on your own behalf. 2. If you dispute the above facts, you can request a heazing before an Administrative Law Judge. At that heazing both you and the City will be able to appeaz and present witnesses, evidence and cross-examine the other's witnesses. The St. Paul City Council wili ultimately decide the case. If this is your choice, please advise me no later than Monday, December 28, 2009, and I will take the necessary steps to schedule the administrative hearing. If yon have not contacted me by that date, I wili assume that you do not contest the imposition of t}►e $500.00 matrix penalty. 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 266-8710. Sincerely, � 1 �/ � �.��� ��w��.� Virginia`�. Palmer Assistanr City Attorney cc: Christine Rozek, Deputy Director of DSI Betty Moran, Community Organizer, West SeventhlFort Road Federation 974 West Seventh Street, St, Paul, MN 55102-3520 Affirma[ive Action Equal Opportunity Employer STATE OF MAVNESOTA � �s. COUNTY OF RAMSEY ) AFFIDAVIT OF SEk .10E SY U.S. MAIL � f0 Julie Kraus, being first duly swom, deposes and says that on the d��day of December, she served the attached NOTICE OF VIOLATION by placing a true and conect copy thereof in an envelope addressed as follows: Gloria Caselius The Lucky Foxx Baz & Grill 731 Randolph Avenue St. Paul, MN 55102 Betty Moran, Community Organizer West SeventhlFort Road Federation 974 West Seventh Street St. Paul, NIN 55102-3520 (which is the last known address of said person) depositing the same, with postage prepaid, in the United States mail at St. Paul, Minnesota. 3uli aus Subscribed and sworn to before me this � ay of December, 2009 No y Public RITA M. BOSSRRD h'OTARY PUBUC - MINNESOTA MY COMMISSION EXPIRES JAN. 31, 20 f 0 Chapter 310. Uniform Licens - ocedures Page I of 3 �Q��1 � (m) Presumptrve pena/ties for 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 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 listed. 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. Atl penalty recommendations for chapter 331A violations shall be based on the tood penalty guideline referred to in chapter 331A. These penalties are presumed to be appropriate for every case; however the council 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 shalf provide written reasons that specify why the penalty 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 legisfative 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 reiating $2,000.00 fine to the licensed activity, �500.00 fine $1,000.00 and 10-day Revocation other than viofations of the fine suspension food code (4) Failure to permit 5-day 10-day 15-day Revocation entrance or inspection by suspension suspension DSI inspector or police suspension (5) Commission of a crime other than a felony on the 5-day Revocation premises by a licensee or $7���0� $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 nia 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.�0 $500.00 day suspension (10) Non-critical violation $150.00 $250.00 $500.00 $1,000.00 under 331 A (i) Fines payable without hearing . Chapter 310. Uniform Licens 'ocedures Page 2 of 3 � p-(� (� 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 wii{ 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 Councif. 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 will be considered to be a waiver of the hearing to which the licensee is entitied, and wifl 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 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) Multiple violations. At a licensee's first appearance before the c+ty council, the council shall 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 formaf notice of hearing. The councii in that case shali 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 penalties in the council's discretion. (iii) Violations occurring after the date oi 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 councif. The same procedures shalf 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 paRicular 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 iicensee 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 Licens 'ocedures Page 3 of 3 j� �CQ � 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 vioiation that gave rise to the first appeasance 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) previous occasions, each for violations listed in paragraph (m) or section 409.26, and if said ficensee again appears before the council for a viofation contained in paragraph (m), and if the current violation occurred within twenty-four (24) calendar 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 twenty-four (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 shail 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 i� a ficensed 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. 45-180, § 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) �o�� � MINNESOTA STATUTES 2009 340A.415 340A.415 LICENSE REVOCATION OR SUSPENSION; CIVII. PENALTY. On a finding that the license or pemrit holder has (1) sold alcoholic beverages to another retail licensee for the purpose of resale, (2) purchased alcoholic beverages from another retail licensee for the purpose of resale, (3} conducted or permitted the conduct of gambling on the licensed premises in violation of the law, (4) failed to remove or dispose of alcoholic beverages when ordered by the commissioner to do so under section 340A.508, subdivision 3, or (5) failed to comply with an applicable statute, tule, or ordinance relating to alcoholic beverages, the commissioner or the authozity issuing a retail license or permit under this chapter may revoke the license or permit, suspend the license or permit for up to 60 days, impose a civil penalty of up to $Z,000 for each violation, or impose any combination of these sanctions. No suspension or revocation takes effect until the license or permit holder has been given an opportunity for a heazing under sections 14.57 to 14.69 of the Administrative Procedure Act. This section does not require a political subdivision to conduct the hearing before an employee of the Office of Administrative Hearings. Imposition of a penalty or suspension by either the issuing authoriry or the commissioner does not preclude imposition of an additional penalty or suspension by the other so long as the total penalty or suspension does not exceed the stated maximum. History: 1985 c 248 s 70; 1985 c 305 art 6 s 15; 1985 c 309 s 11; ISp1985 c 16 art 2 s 3 subd 1; ISp1986 c 3 art 1 s 42; 1987 c 152 art 1 s 1; 1987 c 310 s 12; 1988 c 534 s 2; 1991 c 249 s 19; 1993 c 350 s II, 1994 c 611 s 23 Copyright � 2009 by the Revisor of Statutes, State of Mmnesota. All Rigltts Reserved.