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10-759Council File # 10-759 Green Sheet #_ �-�� RESOLUTION CITY OF SAINT Presented by L, MINNESOTA ��fj WHEREAS, adverse action was taken against the Mobile Food Vehicle license he]d by Crisoforo Tapia d(b(a Tapia's Ice Cream (License ID#20060001495) for the City of Saint Paul by Notice of Intent to Suspend License dated June 25, 201�, alleging licensee failed to pay delinquent license and late fees of $292.00; and 4 5 6 7 8 9 10 I1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 WHEREAS, per Saint Paul Legislative Code §310.05 (m) (2), the licensing office also recommended a $500.00 matrix penalty for failure to arrange for a vehicle inspection and submit required information listed o� the renewal invoice in order to maintain the license; and WHEREAS, the licensee did not respond to the Notice of Intent to Suspend License to pay the delinquent license and late fees of $292.00, ana�ge for a vehicle ipspection and submit required information listed on the renewal invoice; and WHEREAS, the Notice of Intent to Suspend License was returned by the United States Postal Service as "return to sender - attempted not known - unable to forward" based on the address provided by the licensee; and WHEREAS, Che Notice of Intent to Suspend License stated that if the licensee failed to pay the delinquent Iicense and late fees of $292.00, arrange for a vehicle inspection and submit required infonnation listed on the renewal invoice by July 6, 2Q 10, that the matter would be placed on the consent agenda to impose the recommended penalty; now, therefore, be it RESOLVED, that the Mobile Food Vehicle license held by Crisoforo Tapia d/b/a Tapia's Ice Cream is hereby suspended for failure to pay delinquent license and late fees of $292.00; and FURTHER RESOLVED, the licensee is ordered to pay a matrix penalty of $500.00 far failure to arrange for a vehicle inspectlon and submit required information on the renewal invoice in order to maintain the license. Payment of such penalty shall be made within thiriy days of the date of the adoption of this resolution. Yeas Nays Absent Bostrom � Carter ,/ Harris � Helgen � Lantry ,i Stazk Y Thune �/ 7 � � Adopted by Council: Date ��� J j�/J//) Adoption Ce�rtifi by Cou�cil Secretary BY� _ _/� //r1r,//Ir��cl�d%I _ Date Requested by Deparhnent of: �. G'--`-�_ �r�o�e.c�,:,,r�c �� � By: l%L.l:.a�.a� �'} '-�d��� Form�p�e�{ ed by City Attorne� BY� __�c�.Kn.tX �-'-�l k-� Form A ove by ayor for bmission to Couocil By: � 10-759 � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � I DepartmenUOffice/Council: � Date Initiatetl: � �, S � _Dept.ofSafety&fnspections ; 09JUL2010 � Green Sheet NO: 3115785 ContaM Person & Phone: . Rachel Tiemey 26 6-8710 � Must Be on Gouncil Agenda by (D�t zi-�u�-,o �C,Dlnao NI�- � Doc. Type: RESOLUTION � E-DOwment Requiretl: Y �. Document Contact: Jutie Kraus I Contact Phone: 266-8776 i y i o t � Assign Z � Number 3 , For � � Routing � 4 ! Order j 5 ToWI # of Signature Pages _(Clip All Locations for Signature) Action Requested: Approval of the attached resolution to take adverse acrion against the Mobile Food Vehicle license held by Crisoforo Tapia d/b/a Tapia's Ice Cream (License ID #20060001495) for the City of Saint Paul. Rewmmendations: Approve (A) or Reject (R): Planning Commission CIB Committee Civil Service Commission Personal Service Contracts Must Answer the Following Questions: i. Has this persoNfirm ever worked under a contract for this department? Yes No 2. Has this persoMfirm ever been a city employes? Yes No 3. Does this person/firm possess a sKill not normally possessed by any current city employee? Yes No Ezpiain all yes answers on separate sheet and attach to green sheet Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why): Licensee failed to pay delinquent license and late fees of $292.00 and submit required information in order to maintain the license. After notificarion, licensee did not respond to the No6ce of Intent to Suspend License. Advantages If Approved: License suspension and imposition of $500.00 matrix penalty. Disadvantages If Approved: DisadvantageslfNotApproved: To[al Amount of Transaction: Funding Source: Financial Informatian: (Expiain) CosVRevenue Budgeted: Activity Number: July 9, 2010 11:42 AM Page 1 10-759 SAINT PAUL � AAItA CITY OF SAINT PAUL ChnstopherB. Goleman, Mayo� OFFICE OF THE CITY ATTORNEY Gerald T Hendnckson, CrfyAttomey Tefephone.' 657 266-8770 Facsimile. 651 298-5679 June 25, 2010 Crvil Division 400 City Hall f 5 West Kellogg Blvd. Saint Paui, Minnesota SS102 NOTICE OF INTENT TO SUSPEND LICENSE Crisoforo Tapia Tapia's Ice Cream 376 Marie Street, Apt. #I ]0 St. Paul, MN 55118 RE: Mobile Food Vehicle license held by Crisoforo Tapia dlb/a Tapia's Ice Cream for the City of Saint Paul License ID #20060001495 Dear Mr. Tapia: The Department of Safety and Inspections (DSI) has recommended suspension of the Mobile Food Vehicle license held by Crisoforo Tapia dJb/a Tapia's Ice Cream for the City of Saint Paul. The basis forthis recommendation is as follows: On June 1, 2010, a RENEWAL INVOICE generated by the Department of Safety and Inspections showed that your Mobile Food Vehicle license expired as of May 1, 2010 and you now owed $292.00 in delinquent Iicense and late fees. The invoice also showed that you have not submitted the following information to renew your license: 1) a current menu of ALL food items to be served from the licensed vehicle; 2) current letter of permission signed by the owner of your commissary allowing use of the facility as a commissary and state the location of your commissary; 3) state the location of food sales (with site plan); 4) state the location of vehicle storage (with site plan) and 5) list detailed vehicle information (VIN #, plate #, year, make, model). You were then asked to call and arrange for a Mobile Food Vehicle inspecrion and bring the information listed above with you to the inspection. On May 28, 2009, an inspector observed someone selling ice cream with license sticker #205 which had expired. He was told the cart still belonged to you, but it has now been determined to no longer meet requirements and may not he used unrit inspected, To date, two different DSI Inspectors have tried unsuccessfully to contact you regarding these issues and have received no response from you. AA-ADA-EEO Emntover 10-759 Tapia's Ice Cream June 25, 2010 Page 2 At this time, you have three options on how to proceed: You can pay $292.00 in delinquent license and late fees by check or money order. If this is your choice, you should send the payment and information directly to the Department of Safety ar�d Inspections, at 375 Jackson Street, Ste. 220, St. Paul, Minnesota 55101-1806 no ]ater than Tuesday, July 6, 2010. Information should be directed to the attention of Christine Rozek. A self-addressed envelope is enclosed for your convenience. Payment of the delinquent license and 3ate fees and submission of the requested information will be considered to be a waiver of the hearing to which you are entitled. You also will need to contact Oren Larson at (6511 266-9140 to schedule vour Mobile Food Vehicle insnection and brine the requested informafion with vou. If vour vehicle aasses insaecfio❑ vour naperwork and fees will be collected and a sticker will be placed ou vour vehicle 2. If you wish to admit the facts but contest the penalry, you may have a public hearing before the Saint Paul City Council, yau will need to send me a]etter with a statement admitting the facts and requesting a public hearing. We will need to receive your letter by Tuesday, July 6, 2010. The matter will then be schedu3ed before the City Council for a public hearing to determine whether to suspend your license. You will have an opportun'rty to appear before the Council and make a statement on your own behalf. If you no longer wish to do business in the City of Saint Paul, yo� will need to send a written statement to that effect to the Department of Safety and Inspections, at 375 Jackson Street, Ste. 220, St. Paul, Minnesota 55101- l 806 no later than Tuesday, July 6, 2010. Information should be directed to the attention of Christine Rozek. In addition to the suspension of you Mobile Food Vehicle license, per Saint Paul Legislative Code §310.05 (m) (2), the licensing office will also recommend a$SOO.OQ matrix penalty for failure to submit required information in order to maintain your license. If you have not contacted me by that date, I will assume that you do not contest the suspension of your license. In that case, the matter wi(1 be placed on the City Council Consent Agenda for approval of the recommended penalty. If you have quastions about these options, please feel free to contact me at 266-8710. Sincerely, 2�.c:�.�, ��.�. � �� Rachel Tierney � Assistant City Artorney ca Cl�ristine Rozek, Depury Director of DSI AA-AnA-F.FCI F.mnlnver STATE OF MINNESOT " � ss. COUNTY OF RAMSEY ) AFFIDAVIT OF SE._ ✓TCE BY U.S. MAIL 10-759 Julie Kraus, being first duly sworn, deposes and says that on the ��day of June, she served ihe attached NOTICE OF INTENT TO SUSPEND LICENSE by placing a true and correct copy thereof in an envelope addressed as foilows: Crisoforo Tapia Tapia's Ice Cream 376 Marie Sh�eet, Apt. #ll 0 St. Paul, MN 55118 (which is the last known address of said person) depositing the same, with postage prepaid, in the United States mail at St. Paul, Minnesota. 4 � Julie aus Subscribed and sworn to before me this 2�/�-day of June, 201 Q ��t�� - s,?�'J�� No ary Public R17A M. BOSSARD NOTARY PI�LlC • MINNESOTA MY COMMiSS10N EXPIRESJAN 37 20t5 � nn. ni�r�n, � 10-759 Chapter 3] 0. - Uniform Lice�._o Procedures ( Sec. 3_10.05. - Hearing procedures. Page ] of 5 (a) Adverse acfion; notice and hearing requirements. In any case where the council may or intends to consider any adverse action, including the revocation or suspension of a license, the imposition of condifions upon a license, or the denial of an application for the grant, issuance or renewa( of a license, or the disapproval of a license issued by the State of Minnesota, the applicant or licensee shall be given notice and an opportunity to be heard as provided herein. The council may consider such adverse actions whea recommended by the +nspecior, by the directos, by the director of any executive department established pursuani to Chapter 9 of the Charter, by the city attomey or on its own initiative. (b) Notice. In each such case where adverse action is or will be considered by the council, the applicant or licensee shall have been notified in writing that adverse action may be taken against the license or application, and that he or she is entitled to a hearing befiore action is taken by the council. The notice shall be served or mailed a reasonable time before the hearing date, and shall state the place, date and time of the hearing. The notice shall state the issues involved or grounds upon which the adverse action may be sought or based. The council may request that such written notice be prepared and served or mailed by the inspector or by the city attorney. (c) Hearrng. Where there is no dispute as to the facts underlying the violation or as to the facts establishing mitigating or aggravating circumstances, the hearing shall be held before the council. Otherwise the hearing shall be conducted before a hearing examiner appointed by the council or retained by contract with the city for that purpose. The applicant or the licensee shall be provided an opportunity to present evidence and argument as well as meet adverse testimony or evidence by reasonable cross-examination and rebuttal evidence. The hearing examiner may in its discretion permit other interested persons the opportunity to present tes5mony or evidence or othenvise participate in such hearing. (c-1) P�ocedure; hearing examiner. The hearing examiner shall hear all evidence as may be presented on behalf of the city and the applicant or licensee, and shall present to the council written findings of fact and conclusions of law, togeiher with a recommendation for adverse action. The council shall consider the evidence contained in the record, the hearing examiner's recommended findings of fact and conclusions, and shall not consider any factual testimony not previously submitted to and considered by the hearing examiner. After receipt of the hearing examiner's findings, conclusions, and recommendations, the council shall provide the applicant or licensee an opportunity to present oral or written arguments alleging error on the part of the examiner in the application of the law or interpretation of the facts, and to present argument related to the recommended adverse action. Upon conclusion of that hearing, and after considering the record, the examiner's findings and recommendations, together with such additional arguments presented at the hearing, the council shall determine what, if any, adverse action shall be taken, which action shall be by resolution. The council may accept, reject or modify the findings, conclusions and recommendations of the hearing examiner. (c-2) Ex-parte contacts. If a license matter has been scheduled for an adverse hearing, council members shalf not discuss the license matter with each other or with any of the parties or interested persons involved in the matter unless such discussion occurs on the record during the hearings of the matter or during the council's finai deliberations of the matter. No interested person shall, with knowledge that a license matter has been schedufed for adverse hearing, convey or attempi to convey, orally or in writing, any information, argument or opinion about the matter, or any issue in the matter, to a council member or his or her staff until the council has taken final action on the matter; provided, however, that nothing herein shall prevent an inquiry or communications regarding status, scheduling or procedures concerning a license matter. An interested person, for the purpose of this paragraph, shall mean and include a person who is an o�cer or employee of the licensee which is the subject of the scheduled adverse hearing, or a person who has a financial interest in such licensee. (d) Licensee or applicant may be represented. The licensee or applicant may represent himself or choose to be represented by another. (e) Record; evidence. The hearing examiner shall receive and keep a record of such proceedings, including testimony and exhibits, and shall receive and give weight to evidence, including hearsay evidence, which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their aSfairs. (f) Councrl action, resolution to contain findings. Where the council takes adverse action with respect to a license, licensee or appiicant for a license, the resoVution by which such actlon is taken sha�l contain its findings and determination, inciuding ihe imposition of conditions, if any. The council may adopt all or paK of the findings, conclusions and recommendations of the hearing examiner, and incorporate the ia�s9 Chapter 310. - Uniform Licei,,,.; Procedures Page 2 of 5 same in its resolution taking the adverse action. (g) Additional procedures wi�ere requi�ed. Where the provisions of any statute or ordinance require additional notice or hearing procedures, such provisions shall be complied wfth and shall supersede inconsistent provisions of these chapters. This shall include, without limitafion by reason of this specific reference, Minnesota Statutes, Chapter 364 and Minnesota Statutes, Section 340A.415. (h) Discretion to hear notwithstanding withdrawal or surrender of applrcatron or license. The council may, at its discretion, conduct a heanng or dvect that a hearing be held regarding revocation or denial of a license, notwithstanding that the applicant or licensee has attempted or purported to withdraw or surrender said license or application,'rf the attempted withdrawal or surrender took place after the applicant or licensee had been notified of the hearing and potentiai adverse action. (i) Continuances. Where a hearing for the purpose of considering revocation or suspension of a license or other disciplinary action involving a license has been scheduled before the council, a continuation of the hearing may be granted by the council president or by the council at the request of the licensee, license applicant, an interested person or an attorney representing the foregoing, upon a showing of good cause by the party making the request. (j) If the councii imposes an adverse action as defined in section 310.01 above, a generic notice of such action shall be prepared by ihe license inspector and posted by the licensee so as to be visible to the public during the effective period of the adverse action. The licensee shall be responsible for taking reasonable steps to make sure the notice remains posted on the front door of the licensed premises, and failure to take such reasonable precautions may be grounds for further adverse action. (k) Imposition of costs. The council may impose upon any licensee or license applicant some or all of the costs of a contested hearing before an independent hearing examiner. The costs of a contested hearing include, but are not limited to, the cost of the administrative law judge or independent hearing examiner, stenographic and recording costs, copying costs, city staff and attorney time for which adequate records have been kept, rental of rooms and equipment necessary for the hearing, and the cost of expert witnesses. The council may impose all or part of such costs in any given case if (i) the position, claim or defense of the licensee or applicant was frivolous, arbitrary or capricious, made in bad faith, or made for the purpose of delay or harassment; (ii) the nature of the violation was serious, or involved violence or the threat of violence by the licensee or employees thereof, or involved the sale of drugs by the licensee or employees thereof, andlor the circumstances under which the violation occurred were aggravated and serious; (iii) the violation created a serious danger to the public healih, safety or welfare; (iv) the violation involved unreasonable risk of harm to vulnerable persons, or to persons for whose safety the licensee or applicant is or was responsible; (v) the applicant or licensee was sufficiently in control of the situation and therefore could have reasonably avoided the violation, such as but not limited to, the nonpayment of a required fee or the failure to renew required insurance policies; (vi) the violation is covered by the matrix in section 40926 of the Legislative Code; or (vii) the violation involved the sale of cigarettes to a minor. (I) lmposition of fines. The council may impose a fine upon any licensee or license applicant as an adverse license action. A fine may be in such amount as the council deems reasonable and appropriate, having in mind the regulatory and enforcement purposes embodied in the particular licensing ordinance. A fine may be in addition to or in lieu of other adverse action in the sole discretion of the council. To the extent any other provision of the Legislative Code provides for the imposition of a fine, both provisions shall be read together to the extent possible; provided, however, that in the case of any conflict or inconsistency, the other provision shall be controlling. (m) Presumpfive penalties for certain violations. The purpose of this section is to establish a standard by which the city council determines the amount of fnes, the length of license suspensions and the propriety of revocations, and shall apply to all license types, except that in ihe case of a violation involving a liquor license § 409.26 shall apply where a spec'rfic 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 individuai 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 penatty 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 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 shall provide written reasons that soecifv whv the oenaltv seler.ted wac mnrP annrnn��afP 'Type of Appearance Violation 1st is� ar._i_a:___ _s CS00 O!1 £enu 2nd �3rd �4th 49 f10b (1!1 finc @9 00(1 OR finc Rc�inrafinn Chapter 310. - Uniform Lice�,_.; Procedures condi4ions placed on the license (2) Violation of $500.00 fine provisions of the legislative code relating to the licensed (3) Violation of $500.00 fine provisions of the legislative code relating to the licensed activity, other than violations of the food code (4j Failure to 5-day permit entrance suspension or inspection by DSI inspector or police (5) Commission $700.00 of a crime other than a felony on the premises by a licensee or (6) Commission $2,000.00 of a felony on the premises by a licensee or �'(7) Death or 30-day great bodily suspension harm in establishment related to violation of law or license conditions (8) Failure to Revocation pay license fees (9) Critical $250.00 violafions under 331 R (10i t�on-critical $150.00 violation under 331 A $1,00O.00fine I$2,00O.00fine (Revocatiott and 1Q-day suspension and 90-day suspension $1,000.00 fine $2,000.00 fine Revocation and 10-day suspension 10-day suspension 15-day suspension 5-day suspension n/a Revocation Revocation $1,500.00 Revocation 60-day suspension $250.00 Revocation n/a n/a $1,000.00, 5-day IRevocation suspension $500.00 �$9,000.00 ia�s9 Page 3 of 5 (i) Fines payab/e without heanng. ia�s9 Chapter 310. - liniform Lice, ,a Procedures Page 4 of 5 H. Notwithstanding the provisions of section 310A5(c), a hcensee who would be making a first or second appearanc� before the council may elect to pay the Fne to the DepartmenY of Safety and lnspections withoui 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 entitied, 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 ihat 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 Safefy and inspections is equai 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 entitled, and will be considered an "appearance" for the purpose of determining presumptive penaities for subsequent violations. A non-critical violation under chapter 331A sfiall not be considered an "appearance" for purposes of determining presumptive penalties for non331A vioiations. A council hearing is requi�ed iF the Department of Safety and Inspections recommends a fine that is an upward departure for the amouni outlined above. (ii) Multiple vio/ations. At a licensee's first appearance before the city council, the council shall consider and act upon all the violations that have been alleged and/or incorporated in the notices sent to the Iicensee under the administrative procedures act up to and including the formal notice of hearing. The council in thai case shall consider the presumptive penaity for each such violation under the "1st Appearance" column in paragraph (b) above. The oecurrence of multiple violations shali be grounds for depart�re from such penalties in the council's discretion. (iii) Violations occurring after the dafe of fhe 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 tfiough part of the "1sf Appearance." In alI other cases, violations occurring aker 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 cbuncil. 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 lo the subsequent appearance without regard to the particular violation or vioiafions 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 oYher fhan 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 viofatlon has occurred within twelve (12) calendar months after the first appearance of the same licensee for a violafion listed in paragraph (m} above or sectton 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 for violations �isted in paragraph (m) or section 4092B, and if said licensee again appears before the councii for a violation listed in paragraph (m), and if the current violation occurs wfthin eighteen (18} calendar months of the violation thai gave rise to the firsi appearance before the council, then the current appearance shall be treated as a third appearance for the purpose of determining presumptive penaRy. (3) If a licensee has appeared before the council on three (3) Arevious occasions, each for violations Iisted 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) 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 pena(ty. 10-759 Chapter 3l 0. - Uniform Lice,_.: Procedures Page 5 of 5 (4) Any appeara�ce not covered by subsecbons (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 twenry-four (24) months have elapsed sfiali be tfie dafe of ffie violation fast in time at fhe firsi appearance, and the date of the violation first in time ai 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 I�cense condit�ons shall be counted as a second appearance, regardless of how much time has passed since the firsf appearance if the first appearance was also regarding a deatfi 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 £rst or second appearance. (Code 1956, § 570.05; Ord. No. 17551, § 2, 449-88; Ord. No. 77559, §§ 1, 2, 5-17-88; Ord. No. 17659, § 1, 643-89; Ortl. No. 179Y 1, § 7, 3-10-92; C.F. No. 94-46, § 7, Y-2•94, C.F. No. 94-898, §§ Y, 3, 7d3-94; C.F. No. 944340, § 2, 1049-94; C.F. No. 95173, § 4, 5- 31-95; C.F. No. OSd80, § 1, 4-6•05; C.F. No. Ofi-954, § 1, 11-8-06; C.F. No. 06d072, § 1, 12-27-06; C F. No. 07449, § 73, 3-28-07; QF, No. 07-7053, § 1, 11-18-07; C.F. No. 08d208, § 1, 12-17-08)