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98-763� SEP 26 199� Green Sheet # ORIG��AL puAt{suFn Council File # Ordinance # gfJ — �� Presented By ORDINANCE OF SAINT P L, MINNESOTA -� S( q ? Z- 30 Referred To Committee: Date An ordinance amending Chapter 60 of the Saint Paul Legislative Code pertainiug to zoning for the City of Saint Paul and the zoning maps thereo£ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 WFIEREAS, Pursuant to Minnesota Statutes §462357 and §64.400 of the Legislative Code, CHILDREN'S HEALTH CARE duly petitioned to rezone 233 GRAND AVENUE being legally described as Part of Block 68 SELY of Hwy & WLY of a line desc as com at SE cor of Metcalf & Wilder's Subdivision th W along N L of Grand Avenue for 138.5 ft to pt of beg; th N 0° 11'2" W for 206.8 ft th N 31 °29'2" W to Hwy & there term; Dayton & Irvine's Addition AND Vac St accruing & part of Blk 68 Dayton & Irvine's Add. SELY of Hwy & ELY of a line desc as com at SE cor of Metcalf & Wilder's Subdivision th W along NW Grand Avenue for 138.5 ft to beg th N 0° 11'2" W for 206.81 ft th N 31 °29'2" W to Hwy & there term & also all of Metcalf & Wilder's Subdivision from B-3 to B-5 to a11ow the entire hospital campus to be in the same zoning district, the petition having been certified by the Planning Division on May 13, 1998 as having been consented to by at least sixty-seven percent of the owners of the area to be rezoned, and further having been consented to by at least two-thirds of the owners of the property situated within 100 feet of the total contiguous property within one year preceding the date of the petition; and WI�EREA5, the Zoning Committee of the Planning Commission held a public heazing on June 18, 1998 for the purpose of considering the rezoning petition, and pursuant to § 107.03 of the Administrative Code, submitted its recommendation to the Planning Comxnission that the petition be granted; and WHEREAS, the Planning Commission considered the rezoning petition at its meeting heid on June 26, 1998, and recommended that the City Council approve the petition; and WFIEREAS, notice of public hearing before the City Council on said rezoning petition was duly published in the official newspaper of the City on June 6, 1998, and notices were duly mailed to each owner of affected property sihzated wholly or partly within 350 feet of the properiy sought to be rezoned; and WHEREAS, a public hearing before the City Councii having been conducted on 7uly 22, 1998, at which all interested parties were given an opportunity to be heard, the Council having considered all the facts and recommendations concerning the petition; now, therefore THE COUNCIL OF THE CITY OF SA1NT PALTL DOES ORDAIN: Section 1. 36 That the zoning map of the City of Saint Paul, Sheet Number 20 as incorporated by reference in §60301 of 37 the Saint Paul Legislative Code, as amended, is hereby fiuther amended as follows: 38 39 40 41 42 43 44 45 46 y'�' - �- 63 That the property at 233 GRAND AVENLJE, being more particularly described as: Part of Block 68 SELY of Hwy & WLY of a line desc as com at SE cor of Metcalf & Wilder's Subdivision th W along N L of Grand Avenue for 138.5 ft to pt of beg; th N 0° 11'2" W for 206.8 ft th N 31 °29'2" W to Hwy & there term; Dayton & Irvine's Addition AND Vac St accruing & part of Blk 68 Dayton & Irvine's Add. SELY of Hwy & ELY of a line desc as com at SE cor of Metcalf & Wilder's Subdivision th W along NW Grand Avenue for 138.5 ft to beg th N 0° 11'2" W for 206.81 ft th N 31 °29'2" W to Hwy & there term & also a11 of Metcalf & Wilder's Subdivision 47 48 be and is hereby rezoned from B-3 to B-5. 49 50 51 Section 2. 52 This ordinance sha11 take effect and be in force thirry (3�) days from and after its passage, approval and 53 publication. oRiG��at Requested by Departme f: Plannin & omic Develo ment By: Adoption Certified by Council Secretary By: � � 9" � � , Approved by Mayor: D te By: Form Approv By: Approved by By' Adop*_e3 ?�y Cour.c:l: Date� � i�r� \ �N° 51972 '� /.16� 21 � UEWJRMET7� (CqUNCiI � OATE INITIATEO , v / v �� p�D Se�+.�%�cs.t" "1'�i�-+ j 2��9� GREEN SHEET CONTACT PERSON B PH0�1E � O DEPARTMENT D�RELTO �NITIA�ATE � qTV COUNQL INITIAV�ATE ��a �� Z� �JS ( Z ASSiG1G � CITV ATiORNEY �j' Q C1TY CLER% NUNBERFOH ThUST BE ON CAUNCIL AGENDA 8Y (DAT q�� BUDGET DIPECTOR O FIN. 8 MGi SEAVICES DIR. RS SOOYI QS O� �/ `i� OFOER � MAYOFl (OF ASSI$ O TOTAL # OF SIGNATURE PAGES � (CIIP ALL LOCATIONS FOR SI TURE) ��i4c(a�t a,r� a-dl�e fr� �•�ir�e rows�i� ��;� .�� __, oF' CLrifct�e�-i�' �f�7� Q?�' -fa ,^e,�one �r� �or�,#tr�.�t z33 �c�l �� UF 8-3 {� B s ('Nu6k�. �.�„ �,.�� .s�a Za, r��s� RECOMMENDATIONS: ADP�o�e (A) m Rsject (R) pERSONAL SERVICE CONTRACTS MUST ANSWER THE FOILOWING QUESTIONS: _ PtANNING CAMMISSION .__ CIVI� SERVIqE CAMMISSION �- Has this persoNfirm ever worketl under a contraM for this department? _. CIB CAMM[TTEE _ YES NO ^ � A �� 2. Has Mis personttirm ever been a ciry employee? — VES NO — aSTq�T �R� — 3. Does this person/firm ossess a skill not nottnail p y possessetl by a�y current ciry employee'+ SUPP6qTSWNICNCOUNCfLOB.IECTIVE+ YES NO Explal� all yec answera o� sepprate aheet e�E pttaeh to green sheet INRIATING PROBIEM, ISSUE. OPPORTUNITV (Who. What. When. Where. Why) �i�aG'�e [srt.u.ce� l,�ra va.Q a� .t �oe.f-+`fien�C�I1�DR�'N S�C.7 C� �{a �^e�rre �.o�+�fi a-t 233 6�-A�ND �It/ elE ��, B-.3 -b r3 :� � a.�.Y ..� P.H�tire Grosp�fa.Q c�'•y�us �a l�e r� tP�e. �� oCc' , ADVANTA('iE5 IF APPROVED: � �' �V �u� 3 e lsse �tr��o��s o��sc� DISADVANTAGES IFAPPflOVEtr - y r �,„eat � ��SP,'�ff ��Z199� � DISADVANTAGES IF NOTAPPROVED' -'��il��l � . �c�':9e3 � �� TOTAL AMOUNT OF TRANSACTION $ COSi/REVENUE BUDGETED (CIHCLE ONE) YES NO FUNDING SOURCE ACTIVITY NUMBER FINANCl0.L INFOR6nATfON� (E%PIAW� OFFICE OF THE CITY ATTORNEY �/ Clayton M. Robinson, lr., City Aflorney 98 ` ��D 3 3�. CITY OF SA1NT PAUL A'orm Colenrun, !Ila��or Civi[Division 400 Ciry HaU IS Werf Ke7logg BPod Saint Pau� Minnesota SSIO2 Telephone: 651 266-8710 Facsimile: 65719&5619 Auwst 12, 1998 \OTICE OF COUN Mr. David Gronbeck Attorney at Law Gronbeck Law Office Suite 1710, One Financial Plaza Minneapolis, Minnesota »402 �1 � �� I ju:i ';.�_._�_ : .. �. _�. f�� $� 1G(gg� Re: Licenses held by 3ill D. Rasmuson dlb/a R& R Books for the premises located at 674 University Ave. W. in St. Paul Our File Number: G98-0156 Deaz Mr. Gronbeck: Please take notice that a hearing on the report of the Administrafive Law Judge conceming the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, August 26,1998, in the City Council Chambers, Third Floor, Saint Pau1 City Hal1 and Ramsey County Courthouse. You have the opportuniry to file exceprions to the report with the City Clerk at any time during normal business hours. You may also present oral or written argument to the council at the Hearing. No new evidence �� ill be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Administrative Law Judge and on the arguments made and exceptions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its }udgement and discretion. Sincerely, � �� Virginia . Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Community Organizer District 8, Su�umit-University Planning Council, 627 Selby Ave., St_ Pau1, MN 55104 9�-7�� 11-2111-11700-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATNE HEARINGS FOR THE CIN OF ST. PAUL In the Matter of All Licenses Heid by Jill Rasmuson, d/b/a R& R Books for the Premises Located at 674 University Avenue West in Saint Paui License 6D No. 32901 FINDINGS OF FACT. CONCLUSIONS AND RECOMMENDATION The above-entitled matter came on for hearing before Administrative Law Judge Barbara L. Neilson on June 9, 1998, at 9:30 a.m. in Room 42 of the Saint Paul City Haii. Vrginia D. Palmer, Assistant Ciry Attomey, 400 City Nall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102, appeared on behalf of the Office of License, Inspections and Environmental Protection of the City of Saint Paul ("the Cit�'). David Gronbeck, Attorney at Law, Gronbeck Law Office, Suite 1710, �ne Financial Plaza, Minneapolis, Minnesota 55402, appeared on behalf of the Licensee, Jifl Rasmuson, d/b/a R& R Books. The record in this matter closed at the conclusion of the hearing on June 9, 1998. This Report is a recommendation, not a final decision. The Saint Paul City Council will make the final decision after a review of the record. The City Council may adopt, reject or modify the Findings of Fact, Conclusions and Recommendations contained herein. Pursuant to Saint Paul Legislative Code section 310.05(c-1), the City Council shall provide an opportunity to present oral or written argument alleging error in this Report and to present argument related to any adverse action recommended in this Report. The parties should contact the City Clerk to ascertain the procedure for filing such argumenf or appearing before the Council. STATEMENT OF ISSUES The issue presented in this matter is whether or not an employee of R& R Books sold sexually expficit material to a minor in violation of Minn. Stat. § 617.293, subds. 1(aj and (b), and Saint Paul Legislative Code § 276.02(a) and, if so, whether adverse action should be taken against fhe licenses held by Jill Rasmuson d/b/a R& R Books. Based on all of the proceedings herein, the Administrative Law .ludge makes the following: �8 ��3 F1NDiNGS OF FACT 1. The Respondent, Jill Rasmuson, owns and operates R& R Books, an adult bookstore located at 674 University Avenue West, Saint Paul. Ms. Rasmuson's husband, Richard S. Rasmuson, Jr., assists wfth the day-to-day operations of the bookstore. 2. Ms. Rasmuson holds mechanical amusement device machine and mechanical amusement device operator licenses from fhe City of Saint Paui for use at R& R Books. These licenses will expire on Ocfober 39, 1998. Ex. 1. 3. There is a sign on the front door of R& R Books indicating that persons must be 21 or older and have an ID in order to enter the store. Even though persons who are 18 can legally be in the store, Mr. Rasmuson spec�ed 21 on the sign because he did not �vant any kids to have contact with the materials. Mr. Rasmuson instructs clerks in the store ta check a customer's ID if the customer looks younger than 21 years of age. If the customer looks over 21, the clerk is given discretion whether or not to check the individuai's ID. . 4. During the spring of 1998, the City's Office of License, Inspections and Environmental Protection was interested in the issue of the location of "adult uses" in the City. On approximately March 23, 1998, the Office sent a letter to adult bookstores indicating that relocation of their premises may be necessary under an ordinance that had been recently adopted. 5. In April, 1998, the City received a complaint regarding an adult bookstore other than R& R Books selling materials to a minor. As part of its investigation of the complaint, the City decided to conduct a compliance check to determine if employees would check for identification of a minor or sell a minor an item of a sexually explicit nature. R& R Books was selected at random for inciusion in the compliance check. There is no evidence that the City ever received any previous complaints alleging that R& R Books had sold sexualiy explicit material to a minor. 6. Compliance checks are also conducted by the City in stores selling fiquor and tobacco products. The City has only infrequentiy conducted compliance checks with respect to adult businesses. 7. The City conducted complia�ce checks with respect to R& R Books and four other adult businesses on April 3, 1998. Prior to conducting the compliance checks, Kristina Schweinler, a senior investigator with the City's License Inspection and Environmental Protection Office, located a minar to serve as a decoy. She obtained the written permission of the boy's parent to participate in the compiiance checks. The boy's mother verified to Ms. Schweinler that the boy was bom on August 3, 1982, and thus was 15 years old. Ex. 5. ►n addition, Ms. Schweinfer personally knew the boy and was familiar with his age. 8. Ms. Schweinier and Sgt. Richard Wachai and Officer Felicia Reilly of the St. Paul Police Department met with the boy in police headquarters on April 3, 1998, before 2 y�-7�3 the compiiance checks were conducied. A general search was conducted of the boy to confirm that he was not in possession of any sexually explicit material, extra cash, or a false ID. They fhen gave the boy money fo purchase the materials and took him to the locations in question. 9. At approximately 4:00 p.m. on Aprii 3, 1998, the boy went into R& R Books. Sgt. Wachal followed him in shortly thereafter. The boy did not use any of the machines in R& R Books that are licensed by the City. He selected a movie called "Our Bang ... An Orgy in Every Box° and a two-pack of magazines sealed in plastic entitled "Adam and RaideT and took them to the clerk behind the counter. The cler{c without Mesitation rang up the purchase without asking the boy for an lD, piaced the items in a bag, took the maney from the boy, and gave the items to him. The boy then left the store and went to the car where Offlcer Reilly and Ms. Schweinler were wa+fing. Ex. 2. 10. Sgt. Wachal, O�cer Reifly, and Ms. Schweinler then went into R& R Books to confront the cashier. The boy remai�ed in the car. Sgt. Wachal displayed his badge and ident�ed himself as a Saint Paul Police Department sergeant in the Vice Unit. The ' cashier, Calvin Dirl, said, "{Ys my fau{t" and admitted that he did not check the boy's ID. He said that he had been working at R& R Baoks for ten years. Ex. 2. He aiso said that he was sick and needed to go to the doctor and was going to undergo a lung reduction. Mr. Dirl beiieved that the boy looked at least 25 years old. 11. The magazines and the video purchased by the boy contained sexually explicit materiat. The magazines purchased by the boy contained numerous photographs of nude men and women in intercourse positions, but did not show actual penetration. The ten- minute video showed nude men and women engaging in sexual intercourse, oral sex, mutual masturbation, sexual intercourse with multiple partners, and other sexual conduct. 12. By letter dated April 17, 1998, the Respondent was notified that the Director of the City's Office of License, Inspections, and Environmentai Protection was recommending that adverse action be taken against the licenses held by Ms. Rasmuson d/b/a R& R Books because sexually ekplicit material had been sold to a minor on or about April 6[sic], 1998. 7he fetter informed th2 Respondent of ifs right to request an evidentiary hearing before an Administrative Law Judge. Ex. 3. 13. The Respondent submitted a timely request for hearing, and this proceeding was commenced. Ex. 4. 14. The Director of the City's Office of License, Inspections, and Environmental Protection has recommended a fine of $500 for R& R Books' alleged violation of state law and city ordinance. The amount of the fine is based upon a matrix set forth in Section 40926 of the Saint Paul Legislative Gode which establishes presumptive penalties for liquor violations based upon the square footage of the business invoNed in the violation. The City has not established a specific matrix applicab{e to violations involving adult bookstores. 3 y�-�6� 15. Criminal charges are pending against the R 8� R Books cferic who sold the materials to the boy. As of the date of the hearing, there had been no disposition of fhe charges. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the fo(lowing_ CONCLUSIONS 1. The Saint Paul Cify Council and the Administrafive Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.55 and 340A.415 and Saint Paul Legislative Code §§ 310.05 and 310.06. 2. The Notice of Hearing issued by the City was proper and all applicable substantive and procedural requirements have been fulfilled. 3. The City bears the burden in this matter of proving by a preponderance of the evidence that adverse action is warranted with respect to the mechanicai amusement device and operato�'s {icenses at issue. 4. Chapter 310 of the Saint Paul Legislative Code contains general provisions relating to licenses issued by the City. Section 31�.�6(b)(6) provides that adverse action may be taken against any or all licenses or permits held by a licensee where the licensee (or a person whose conduct may by law be imputed to the licensee) "has violated, or pertormed any act which is a viofation of, any of the provisions of these chapters or of any statute, ordinance or regulation reasonably related to the ficensed activity, regardless of whether criminal charges have or have not been brought in connection therewith.° Section 310.17 provides that "[ajny act or conduct by any clerk, employee, manager or agent of a licensee ... which act or conduct takes piace .._ on the licensed premises .., and which act or conduct violates any state or federal statutes or regulations, or any city ordinance, shail be considered to be and treated as the act or conduct of the licensee for the purpose of adverse action against ali or any of the licenses held by such licensee." "Adverse action" is defined in sections 310.01 and 310.05(I) of the Saint Paul Legislatn;e Code to include the imposition of a fine. 5. Minn. Stat. § 617.293, subd. 1(1996), provides that it is "unlawful for any person knowingiy to sell or loan for monetary consideration to a minor: (a) [a]ny ... motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors, or (b) (a]ny ... magazine ... which contains any matter enumerafed in clause (a) ...." Section 276.02 of the Saint Paul Legislative Code corrtains the same prohibition as Minn. Stat. § 617.293. "Nudity" is defined in both the statute and the Saint Paul Legislative Code to mean "the showing of the human male or female genitals° with less than a fully opaque covering. Minn. Stat. § 617.292, subd. 3; Saint Paul Legislative Code § 276.01. "Sexual conduct" is defined in both to include "acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's unclothed a 9a-�b3 genitals ...°' The phrase "harmfui to minors" is defined in Minn. Stat. § 617.292, subd. 7, as foilows: `Harmful to minors" means that quality of any description or represenfation, in whafever form, of nudity, sexual conduct, sexuai excitement, or sadomasochistic abuse, when it (1) predominantly appeals to the prurient, shamefu{ or morbid interest of minors, and (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (3) is utterly without redeeming social importance for minors. Section 276.01 of the Saint n Paul Legislative Code includes substantially the same definition of "harmful to minors. Finaily, the term "knowingly" is defined in the statute to mean "having ge�eral knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry or both ...(1) the character and confent of any material which is reasonably susceptible of examination by the defendant, and (2) the age of the minor, provided however that an honest mistake shall constitute an excuse from liability hereunder if the made a reasonabie bona fide attempt to ascertain the true age of such minor. . 6. In addition, section 276.03 of the Saint Paul Legislative Code provides that a person who engaged in conduct prohibited by section 276.02 "is presumed to do so with knowledge of the character and content of the material sold ..., or the motion picture ... fo be exhibited" and that it is an affirmative defense in a prosecution for disseminating harmful materials to minors that "[t]he defendant had reasonable cause to believe that the minor involved had reached his or her eighteenth birthday" and the minor "exhibited to the defendant a draft card, driver's license, birth certificate or other o�cial or apparently official document purporting to establish that such minor had reached his or her eighteenth birthday,"� 7. The City has established by a preponderance of the evidence that a clerk at R& R Books sold magazines and a video to an individual under eighteen years of age ' Minn. Stat § 617.292, subd. 4; Saint Paul Legislative Code § 276.01. z The onty d'rfferences between the statutory and Code provisions is that the Code refers in item (1) to a depiction which, °[t)aken as a whole, predominantiy appeats to the prurient interest in sex of minors' and in item (3) io a depiction which, "[tjaken as a whole, lacks serious literery, artistic, potitical or scientific vafue for a legitimate minority of older, normal minors." 3 Minn. Stat § 617.2g2, subd. 8. The Saint Paul Legislative Code does not define "knowingly.^ " There is no similar provision in Minn. Stat §§ 61 7.291-617.296. 5 g� 7b � without requesting proof that the individual had reached his eighteenth birthday. R& R Books is a"totally adulY' bookstore, and there is no claim by R& R Books that fhe clerk who soid the materials to the minor lacked knowledge of the character and content of the magazines or video. The magazines and video purchased by the minor at R& R Books contained photographs and motion pictures depicting nudiiy and sexual conduct within the meaning of Minn. Stat § 617.293 and section 276.02 of the Saint Paul Legislative Code. Based upon the testimony of the St. Paul police sergeant who reviewed the materials conceming their content, it is evident that the materials predominantly appealed to prurient interests, were patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, lacked serious literary, artistic, political or scientific value, and lacked redeeming social importance for minors. The Licensee did not make any argument to the contrary. Therefore, the City has shown by a preponderance of the evidence that the materials w�re "harmful to minors" within the meaning of Minn. Stat. § 617.293 and section 276.02 of the Saint Paul Legislative Code. 8. The foregoing Concfusions are made for the reasons set forth in the attached Memorandum, which is hereby incorporated in these Conclusions by reference. Based upon the foregoing Conclusions, the Administrative Law Judge makes the foltowing: RECOMMENDATION IT IS HEREBY RESPECTFULLY RECOMMENDED: that the Saint Paul City Council take adverse action against the licenses held by Jill Rasmuson d/b/a R& R Books. Dated this �� day of July, 1998 �,,..�..,._.- �. � i �� BARBARA L. NEILSON Administrative Law Judge NOTICE The City is respectFully requested to provide a copy of its final decision to the Administrative Law Judge by first class mail. Reported: Tape recorded (not transcribed). MEMORAIVDUM Based upon the record in this case, it is evident that the clerk at R& R Books sold sexualfy exp{icit material to a 15-year-o4d decoy on April 3, 1998, without checking the boy's identification card. The City's witnesses indicated that the decoy had been promised confidentiality and, for that reason, the Ciry did not cal! the boy as a witness or introduce a 0 �- ��3 picture of him info evidence. This failure is not fafal to the City's case. Sufficient proof of the decoy's age was provided by the City through the festimony of Sgt. Wachal and Ms. Schweinler conceming the boy's date of birth as refayed by his mother, the written permission slip signed by the mother providing the date of birth, and Ms. Schweinler's personal knowledge of the boy and his age. Although the statute and ordinance at issue proscribe "knowing° sales fo minors and the clerk testified that he believed that the boy looked at least 25 years oid, the statute and ordinance only excuse honest mistakes as to a person's age if the cusfomets ID was checked or some other reasonable attempt was made to determine the true age of the customer. That did not happen in the present case. The clerk had sufficient general knowledge of the decoy's age, based upon the boy's appearance. The clerk undoubtedly also had a general knowledge of the character and content of the material he was selling—he had worked at R& R Books, an aduit bookstore, for ten years. The City thus has shown by a preponderance of the evidence that the statute and ordinance were violated. Secause there is no alfegation that the minor operafed any of the mechanical amusement device machines for which the Licensee is licensed, the Licensee contends that it is inappropriate under the circumstances for the City to take adverse action against these licenses. This argument is not persuasive. Section 310.06(b)(6) of the Saint Paul Legislative Code expressly authorizes adverse action against "any or all licenses" held where the licensee (or a person whose conduct may by faw be imputed to the licensee) has "violated, or performed any act which is a violation of, any of the provisions of these chapters ...." The actions of the clerk are considered to be the actions of the Licensee pursuant to Section 310.17 of the Code. Accordingly, the clerk's viofation of Section 276.02 of the Saint Paul Legislafive Code prohibiting sales of sexual4y expficit materials to minors provides a sufficient basis for the imposition of discipline against the mechanical amusement device machine and mechanical amusement device operator licenses held by the Licensee. The Licensee further contends that the City improperly entrapped the clerk into committing the violation. She emphasizes that R& R Books does not have any history of complaints conceming sales to mincrs and thus argues fhat the Ciry cannot show that R& R Books was predisposed to sell sexually exp�icit materials to minors. As noted by the Court of Appeals in a recent case, "it is not clear whether the entrapment defense is available in administrafive proceedings." In any case, for the entrapment defense to be successfully asserted, the defendant must first show that the govemment induced the commission of the crime by doing something more than mere solicitation. If inducement is shown, the public aufhority must show beyond a reasonabie doubt that the defendant was predisposed to commit the crime.s 5 In 2 Pedley, 1993 WL 79588 (Minn. App. 1993) (unpublished). s Jacobson v. Unifed States, 112 S. Ct 1535 (1992); State v. Abraham, 335 N.W.2d 745, 747 (Minn. 1983); State v. Ford, 276 N.W.2d 178, 182 (Minn. 1979). 7 98-�63 The initial inducement element is established only by showing "something in the nature of persuasion, badgering, or pressure by the state."' The United Sfates Supreme Court has noted that "Ehe fact that officers or employees of the govemment merely afforded opportunfies or facii'�ies for the commission of the offense does not defeat the prosecu6on. Artifice and strategem may be employed to catch those engaged in criminal enterprises.°a The Licensee in the present case has not established that her clerk was induced by the City's decoy to commit the viofation. As in In re Pedlev, the decoy here "did no more than any young persan might do" in an attempt to obtain sexually explicit material, but "merely provided an opportun+ty for relators to make illegat sales." There is no evidence that the decoy in any way attempted to persuade, badger, or pressure the clerk into se{{ing the materials to him; in fact, it appeacs that he simply presented the materials at the counter for purchase and had no significant interchange with the clerk. Because the Licensee has not shown the requisite inducement, it is not necessary to reach the further issue of whether the City has shown beyond a reasonable doubt that the Licensee was predisposed to commit the crime. The Administrative Law Judge thus respectFully recommends that adverse action be taken against the licenses held by Jill Rasmuson d/b/a R& R Books. The fact that the Licensee has no history of violations should be faken into consideration in arriving at the penalty to be imposed, as should the fact that the clerk sincerely believed that the decoy was of legal age. The City has urged that a$500 fine be imposed, using (by analogy) the matrix set forth in Section 409.26 of the Saint Pauf Legislative Code applicable to liquor violations. The Judge urges the City Councit to consider whether a lesser fine is appropriate under the circumstances of this case. C;� ' Stafe v. Olkon, 299 N.W2d 89, 107 (Minn. 1980j, cert deoied, 449 U.S. 1132 (1981); see also State v. Abraham, 335 N.W.2d 745, 747 (Minn. 7983); and ln re Pedley, supra. e SorreOs v. United States, 287 U.S. 435 (1932). 9 In re Pedley, 19931NL 79588 (Minn. ApP. 1993). 10 Id. in addifion, there is no convincing evidence that the compliance checks were prried out in bad faith or were motivated by changes in City ordinances that witl possibly affect the tocation of `aduit uses° in the City. [? July 7, 1998 Fred Owusu, City Clerk 170 City Hali 15 West Kellogg Boulevard St. Paul, MN 551�2 RE: In the Matter of Afl Licenses Held by Jilf Rasmuson, d/b/a R& R Books for the Premises Located at 674 University Avenue West in Saint Paul; OAH Docket No. 11-2111-11700-3 Dear Mr. Owusu: Enclosed herewith and served upon you by mail is the Administrative Law Judge's Findings of Fact, Conclusions and Recommendation in the above- entitled matter. Also enclosed is the official record, with the exception of the tape recording of the hearing. If you wou{d like a copy of those tapes, please contact our o�ce in writing or telephone 341-7615. Our file in this matter is now being closed. � � • STATE OF MINNESOTA OFFiCE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite'1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 �� Fjy c, R� 9�-�� 3 c� � � . �`1��. � , L. NEILSON � tive Law Judge �: 612l341-7604 i'��'+,� BLN:Ir `�� Enclosures cc: Virginia C David Gn Providing Impartial Hearings for Government and Ci6zens An Equaf OppoAunity Employer Administrative Law Section & Administrative Services (612) 341-7600 e TDD No. (612) 341-7346 � Fax No. (612) 349-2665 ys- ��3 STATE OF MINNESOTA) ) ss COUNTY OF HENNEPIN) AFFIDAVIT OF SERVICE BY U.S. MAlL LaVon Regan, being first duly sworn, hereby deposes and says that on the 7th day of J�, 1998, at the City of Minneapolis, county and state aforementioned, she served the attached Findings of Fact. Conclusions and Recommendation of the Administrative Law Judae: OAH Docket No. 11-2111- 11700-3, by depositing in the United States mail at said City of Minneapolis, a true and correct copy thereof, properly enveloped, with first ciass postage prepaid and addressed to the individuals named herein. Fred Owusu, City Clerk 170 City Hall 15 West Kellogg Boulevard St. Paul, MN 55102 David Gronbeck Attorney at Law Gronbeck Law Office Suite 1710, One Financial Plaza Minneapolis, MN 554�2 Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Kellogg Boulevard St. Paul, MN 55102 l_E.L� 1� � � LaVon Regan Subscribed and sworn to before me this 7th day of July, 1998. �� c , e�-�� Notary Public � � � OUISE C. COOPER � , NQTARYPUBLIC % My Comm. E�i�aJen.31.2000 9�- ��3 11-2111-11700-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of All Licenses Held by Jill Rasmuson, d/b/a R& R Books for the Premises Located at 674 UniversityAvenue West in Saint Paul License ID No. 32901 FINDINGS OF FACT. CONCLUSIONS AND RECOMMENDATION The above-entitled matter came on for hearing before Administrative Law Judge Barbara L. Neilson on June 9, 1998, at 9:30 a.m. in Room 42 of the Saint Paul City Nail. Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102, appeared on behalf of the Office of License, Inspections and Environmental Protection of the City of Saint Paul ("the City"). David Gronbeck, Attorney at Law, Gronbeck Law Office, Suite 1710, One Financial Plaza, Minneapolis, Minnesota 55402, appeared on behalf of the Licensee, Jill Rasmuson, d!b/a R& R Books. The record in this matter closed at the conclusion of the hearing on June 9, 1998. This Report is a recommendation, not a final decision. The Saint Paul City Council will make the final decision after a review of the record. The City Council may adopt, reject or modify the Findings of Fact, Conclusions and Recommendations contained herein. Pursuant to Saint Paul Legislative Code section 310.05(c-1), the City Council shall provide an opportunity to present oral or written argument alleging error in this Report and to present argument related to any adverse action recommended in this Report. The parties should contact the City Clerk to ascertain the procedure for filing such argument or appearing before the Council. STATEMENT OF ISSUES The issue presented in this matter is whether or not an employee of R& R Books sold sexualfy explicit material to a minor in violation of Minn. Stat. § 617.293, subds. 1(a) and (b), and Saint Paul Legislative Code § 276.02(a) and, if so, whether adverse action should be taken against the licenses held by Jill Rasmuson d!b!a R& R Books. Based on all of the proceedings herein, the Administrative Law Judge makes the following: 9� ��3 FINDINGS OF FACT 1. The Respondent, Jifl Rasmuson, owns and operates R& R Books, an adult bookstore located at 674 Univers'rty Avenue West, Saint Paul. Ms. Rasmuson's husband, Richard S. Rasmuson, Jr., assists with the day-to-day operations of the bookstore. 2. Ms. Rasmuson holds mechanical amusement device machine and mechanical amusement device operator licenses from the City of Saint Paul for use at R& R Books. These licenses will expire on October 31, 1998. Ex. 1. 3. There is a sign o� the front door of R& R Books indicating that persons must be 21 or older and have an ID in order to enter the store. Even though persons who are 18 can legally be in the store, Mr. Rasmuson specified 21 on the sign because he did not want any kids to have contact with the materials. Mr. Rasmuson instructs clerks in the store to check a customer's ID if the customer looks younger than 21 years of age. If the customer looks over 21, the clerk is given discretion whether or not to check the individual's ID. 4. During the spring of 1998, the City's Office of License, Inspections and Environmental Protection was interested in the issue of the location of "adult uses" in the City. On approximately March 23, 1998, the Office sent a letter to adult bookstores indicating that relocation of their premises may be necessary under an ordinance that had been recently adopted. 5. In April, 1998, the City received a complaint regarding an adult bookstore other than R& R Books selling materiais to a minor. As part of its investigation of the complaint, the City decided to conduct a compliance check to determine if employees would check for identification of a minor or se11 a minor an item of a sexually explicit nature. R& R Books was sefected at random for inclusion in the compfiance check. There is no evidence that the City ever received any previous complaints alieging that R& R Books had sold sexually explicit material to a minor. 6. Compliance checks are also conducted by the City in stores selling liquor and tobacco products. The City has only infrequently conducted compliance checks with respect to adult businesses. 7. The City conducted compliance checks with respect to R& R Books and four other adult businesses on April 3, 1998. Prior to conducting the compliance checks, Kristina Schweinler, a senior investigator with the City's License Inspection and Environmental Protection Office, located a minor to serve as a decoy. She obtained the written permission of the boy's parent to participate in the compliance checks. The boy's mother verified to Ms. Schweinler that the boy was born on August 3, 1982, and thus was 15 years old. Ex. 5. In addition, Ms. Schweinler personally knew the boy and was familiar with his age. 8. Ms. Schweinler and Sgt. Richard Wachal and Officer Felicia Reilly of the St. Paul Police Department met with the boy in police headquarters on Aprif 3, 1998, befiore �: 9� �� 3 the compliance checks were conducted. A general search was conducted of the boy to confirm that he was not in possession of any sexually explicit material, extra cash, or a false ID. They then gave the boy money to purchase the materials and took him to the locations in question. 9. At approximately 4:00 p.m. on April 3, 1998, the boy went into R& R Books. Sgt. Wachal followed him in shortly thereafter. The boy did not use any of the machines in R& R Books that are licensed by the City. He selected a movie called "Our Bang ... An Orgy in Every Bo�' and a finro-pack of magazines sealed in piastic entitled "Adam and Raider' and took them to the clerVc behind the counter. The c{erk without hesitation rang up the purchase without asking the boy for an ID, placed the items in a bag, took the money from the boy, and gave the items to him. The boy then left the store and went to the car where Officer Reilly and Ms. Schweinler were waiting. Ex. 2. 10. Sgt. Wachal, Officer Reilly, and Ms. Schweinler then went into R& R Books to confront the cashier. The boy remained in the car. Sgt. Wachal displayed his badge and identified himself as a Saint Paul Police Department sergeant in the Vice Unit. The cashier, Calvin Diri, said, "It's my fault" and admitted that he did not check the boy's ID. He said that he had been working at R& R Books for ten years. Ex. 2. He also said that he was sick and needed to go to the doctor and was going to undergo a lung reduction. Mr. Dirl believed that the boy looked at least 25 years old. 11. The magazines and the video purchased by the boy contained sexually explicit material. The magazines purchased by the boy contained numerous photographs of nude men and women in intercourse positions, but did not show actual penetration. The ten- minute video showed nude men and women engaging in sexual intercourse, oral sex, mutual masturbation, sexual intercourse with multiple partners, and other sexual conduct. 12. By fetter dated April 17, 1998, the Respondent was notified that the Director of the City's Offce of License, Inspections, and Environmental Protection was recommending that adverse action be taken against the licenses held by Ms. Rasmuson d/b!a R& R Books because sexually explicit material had been sold to a minor on or about April 6[sic], 1998. The letter informed the Respondent of its right to request an evidentiary hearing before an Administrative Law Judge. Ex. 3. 13. The Respondent submitted a timely request for hearing, and this proceeding was commenced. Ex. 4. 14. The Director of the Gity's O�ce of License, Inspections, and Environmental Protection has recommended a fine of $500 for R& R Books' alleged violation of state law and city ordinance. The amount of the fine is based upon a matrix set forth in Section 409.26 of the Saint Paul Legislative Code which establishes presumptive penalties for liquor violations based upon the square footage of the business involved in the violation. The City has not established a specific matrix applicable to violations involving adult bookstores. 3 9�-763 15. Criminal charges are pending against the R& R Books clerk who sold the materials to the boy. As of the date of the hearing, there had been no disposition of the charges. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. The Saint Paul City Council and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.55 and 340A.415 and Saint Paul Legaslative Code §§ 310.05 and 310.06. 2. The Notice of Hearing issued by the City was proper and all applicable substantive and procedural requirements have been fulfilled. 3. The City bears the burden in this matter of proving by a preponderance of the evidence that adverse action is warranted with respect to the mechanical amusement device and operator's licenses at issue. 4. Chapter 310 of the Saint Paul Legislative Code contains general provisions relating to licenses issued by the City. Section 310.06(b)(6) provides that adverse actlon may be taken against any or all licenses or permits held by a licensee where the licensee (or a person whose conduct may by law be imputed to the licensee) "has violated, or pertormed any act which is a violation of, any of the provisions of these chapters or of any statute, ordinance or regulation reasonably related to the licensed activity, regardless of whether criminal charges have or have not been brought in connection therewith." Section 310.17 provides that "[a]ny act or conduct by any clerk, employee, manager or agent of a licensee ... which act or conduct takes place ... on the licensed premises ... and which act or conduct violates any state or federal statutes or regulations, or any city ordinance, shall be considered to be and treated as the act or conduct of the licensee for the purpose of adverse action against al1 or any of the licenses held by such licensee." "Adverse action" is defined in sections 310.01 and 310.05(i) of the Saint Paul Legislative Code to inciude the imposition of a fine. 5. Minn. Stat. § 617.293, subd. 1(1996), provides thafi it is "unlawfu9 for any person knowingfy to self or loan for monetary consideration to a minor: (a) [ajny ... motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudiiy, sexual conduct, or sadomasochistic abuse and which is harmful to minors, or (b) [a]ny ... magazine ... which contains any matter enumerated in clause (a) ...." Section 276.02 of the Saint Paul Legislative Code contains the same prohibition as Minn. Stat. § 617.293. "Nudity" is defined in both the statute and the Saint Paul Legislative Code to mean "the showing of the human male or female genitals" with less than a fully opaque covering. Minn. Stat. § 617.292, subd. 3; Saint Paul Legislative Code § 276.01. "Sexuaf conducY' is defined in both to include "acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's unclothed � 9� ��3 genitals ...."' The phrase "harmful to minors" is defined in Minn. Stat. § 617.292, subd. 7, as follows: "Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it (1) predominantly appeals to the prurient, shameful or morbid interest of minors, and (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (3) is utterly without redeeming social importance for minors. Section 276.01 of the Saint Paul Legislative Code includes substantially the same definition of "harmful to minors." Finally, the term "knowingly" is defined in the statute to mean "having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry or both ...(1) the character and content of any material which is reasonably susceptible of examination by the defendant, and (2) the age of the minor, provided however that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor." 6. In addition, section 276.03 of the Saint Paul Legislative Code provides that a person who engaged in conduct prohibited by section 276.02 "is presumed to do so with knowledge of the character and content of the material sold ..., or the motion picture ... to be exhibited" and that it is an affirmaiive defense in a prosecution for disseminating harmful materials to minors that "[t]he defendant had reasonable cause to believe that the minor involved had reached his or her eighteenth birthday" and the minor "exhibited to the defendant a draft card, drivePs license, birth certificate or other official or apparently official document purporting to establish that such minor had reached his or her eighteenth birthday." 7. The City has established by a preponderance of the evidence that a clerk at R& R Books so{d magazines and a video to an individual under eighteen years of age ' Minn. Stat. § 617.292, subd. 4; Saint Paul Legislative Code § 276.01. 2 The oniy differences between the statutory and Code provisions is that the Code refers in item (1) to a depiction which, "[t]aken as a whole, predominantly appeals to the prurient interest in sex of minors" and in item (3) to a depiction which, "[t]aken as a whole, lacks serious literary, artistic, political or scientific value for a legitimate minority of older, normal minors." 3 Minn. Stat. § 617.292, subd. 8. The Saint Paul Legislative Code does not define °knowingly." ° There is no similar provision in Minn. Stat. §§ 617.291-617.296. 5 �l� without requesting proof that the individual had reached his eighteenth birthday. R& R Books is a"totally adulY' bookstore, and there is no claim by R& R Books that the clerk who sofd the materials to the minor lacked knowledge of the character and content of the magazines or video. The magazines and video purchased by the minor at R& R Books contained photographs and motion pictures depicting nudiiy and sexuai conduct within the meaning of Minn. Stat. § 617.293 and section 276.02 of the Saint Paul Legisiative Code. Based upon the testimony of the St. Pau1 police sergeant who reviewed the materials conceming their content, it is evident that the materiais predominantly appealed to prurient interests, were patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, lacked serious literary, artistic, political or scientific value, and lacked redeeming social importance for minors. The Licensee did not make any argument to the contrary. Therefore, the City has shown by a preponderance of the evidence that the materials were "harmful to minors" within the meaning of Minn. Stat. § 617.293 and section 276.02 of the Saint Paul Legislative Code. 8. The foregoing Gonclusions are made for the reasons set forth in the attached Memorandum, which is hereby incorporated in these Conclusions by reference. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RESPECTFULLY RECOMMENDED: that the Saint Paul City Council take adverse action against the licenses held by Jill Rasmuson d/b/a R& R Books. Dated this �i'h day of July, 1998 1��H>w.j.-- 1� i�er BARBARA L. NEILSON Administrative Law Judge NOTICE The City is respectfully requested to provide a copy of its final decision to the Administrative Law Judge by first class mail. Reported: Tape recorded (not transcribed). MEMORANDUM Based upon the record in this case, it is evident that the clerk at R& R Books sold sexually explicit material to a 15-year-old decoy on April 3, 1998, without checking the boy's identification card. The Ciiy's witnesses indicated that the decoy had been promised confidentiality and, for that reason, the City did not call the boy as a witness or introduce a � 9�-763 picture of him into evidence. This failure is not fatal to the City's case. Sufficient proof of the decoy's age was provided by the City through the testimony of Sgt. Wachal and Ms. Schweinler conceming the boy's date of birth as relayed by his mother, the written permission slip signed by the mother providing the date of birth, and Ms. Schweinier's personal knowledge of the boy and his age. Afthough the statute and ordinance at issue proscribe "knowing" sales to minors and the clerk testified that he believed that the boy looked at least 25 years old, the statute and ordinance only excuse honest mistakes as to a person's age if the customer's ID was checked or some other reasonable attempt was made to determine the true age of the customer. That did not happen in the present case. The clerk had sufficient general knowledge of the decoy's age, based upon the boy's appearance. The clerk undoubtedly also had a general knowledge of the character and content of the material he was selling—he had worked at R& R Books, an adult bookstore, for ten years. The City thus has shown by a preponderance of the evidence that the statute and ordinance were violated. Because there is no allegation that the minor operated any of the mechanical amusement device machines for which the Licensee is licensed, the Licensee contends that it is inappropriate under the circumstances for the City to take adverse action against these licenses. This argument is not persuasive. Section 310.06(b)(6) of the Saint Paul Legislative Code expressly authorizes adverse action against "any or all licenses" held where the licensee (or a person whose conduct may by law be imputed to the licensee) has "violated, or perFormed any act which is a violation of, any of the provisions of these chapters ...." The actions of the clerk are considered to be the actions of the Licensee pursuant to Section 310.17 of the Code. Accordingly, the clerk's violation of Section 276.02 of the Saint Paul Legislative Code prohibiting sales of sexually explicit materials to minors provides a sufficient basis for the imposition of discipline against the mechanical amusement device machine and mechanical amusement device operator licenses held by the Licensee. The Licensee further contends that the City improperly entrapped the clerk into committing the violation. She emphasizes that R& R Books does not have any history of complaints concerning sales to minors and thus argues that the City cannot show that R& R Books was predisposed to sell sexually explicit materials to minors. As noted by the Court of Appeals in a recent case, "it is not cfear whether the entrapment defense is available in administrative proceedings." In any case, for the entrapment defense to be successfully asserted, the defendant must first show that the government induced the commission of the crime by doing something more than mere solicitation. If inducement is shown, the public authority must show beyond a reasonable doubt that the defendant was predisposed to commit the crime. 5 In re Pedley, 1993 WL 79588 (Minn. App. 1993) (unpublished). 6 Jacobson v. United States, 112 S. Gt. 1535 (1992); State v. Abraham, 335 N.W.2d 745, 747 (Minn. 1983); State v. Ford, 276 N.W2d 178, 182 (Minn. 1979). 7 9�-�63 The initial inducement element is established only by showing °something in the nature of persuasion, badgering, or pressure by the state."' The United States Supreme Court has noted that "the fact that officers or employees of the govemment merely afforded opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and strategem may be employed to catch those engaged in criminal enterprises." The Licensee in the present case has not established that her clerk was induced by the City's decoy to commit the violation. As in In re Pedlev, the decoy here "did no more than any young person might do" in an attempt to obtain sexually explicit material, but "merely provided an opportunity for relators to make illegal sales." There is no evidence that the decoy in any way attempted to persuade, badger, or pressure the clerk into selling the materials to him; in fact, it appears that he simply presented the materials at the counter for purchase and had no significant interchange with the clerk. Because the Licensee has not shown the requisite inducement, it is not necessary to reach the further issue of whether the City has shown beyond a reasonable doubt that the Licensee was predisposed to commit the crime. The Administrative Law Judge thus respectfully recommends that adverse action be taken against the licenses held by Jill Rasmuson d/b/a R& R Books. The fact that the Licensee has no history of violations should be taken into consideration in arriving at the penalty to be imposed, as should the fact that the clerk sincerely believed that the decoy was of legal age. The City has urged that a$500 fine be imposed, using (by analogy) the matrix set forth in Section 409.26 of the Saint Paul Legislative Code applicable to liquor violations. The Judge urges the City Council to consider whether a lesser fine is appropriate under the circumstances of this case. B.L.N. ' State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980), cert. denied, 449 U.S. 1132 (1981); see also State v. Abraham, 335 N.W.2d 745, 747 (Minn. 1983); and In re Pedley, supra. $ Sorrells v. United States, 287 U.S. 435 (1932). 9 In re Pedley, 1993 WL 79588 (Minn. App. 1993). 10 Id. In addition, there is no cronvincing evidence that the comptiance checks were carried out in bad faith or were motivated by changes in City ordinances that will possibly affect the location of "adult uses" in the City. � 5'K(�jM�iT.'.'O Pv`� Cl �4 �-o�.w„J �c1 G Hc/h2�i�G 9 �_ 7� Page 1 Citation/Title 335 N.W.2d 745, State v. Abraham, (Minn. 1983) *745 335 N.W.2d 745 STATE of Minnesota, Appellant, v . Roland ABRAHAM, et al., Respondents, Scott Thomas, Respondent No. C8-83-276. Supreme Court of Minnesota. July 15, 1983. Prosecutions of 21 defendants for gross misdemeanor offense of selling intoxicating liquor to persons under age of 19, and of five other defendants for misdemeanor offense of selling nonintoxicating malt liquor to person under age 19 for consumption on premises, were dismissed by the District Court, Sibley County, Kenneth W. Bull, J., on grounds that defendants were entrapped into making sales. Prosecutors appealed. The Supreme Court, Wahl, J., held that double jeopardy clause barred prosecutor from appealing from judgment o£ acquittal by trial court acting as trier of £act on issue o£ entrapment. Appeal dismissed. 1. CRIMINAL LAW t°'�569 110 ---- 110XVII Evidence 110XVII(V) Weight and Sufficiency 11Qk569 Defenses in general, Minn. 1983. Defendant must raise defense of entrapment by showing by fair preponderance o£ evidence that government induced commission of crime; once defendant has raised issue by showing inducement, defense will bar conviction unless State can show beyond reasonable doubt that de£endant was predisposed to commit crime. 2. DOUBLE JEOPARDY G�59 135H ---- 135HIII Elements of Former Jeopardy 135Hk59 Empanelling and swearing jury, or swearing witness and receiving evidence. Formerly 110k173 [See headnote text below] 2, CRIMINAL LAW �1024(5) 110 ---- 110XXIV Review Copyright (c) West Group 1998 No claim to original U.S. Govt. works y�- �63 335 N.W.2d 745, State v. Abraham, (Minn. 1983) Page 2 110XXIV(D) Riqht of Review 110k1024 Right o£ Prosecution to Review 110k1024(5) Verdict or judgment of acquittal. Minn. 1983. Rule that judgment of acquittal, whether based on jury verdict of not guilty or on ruling by court that evidence is insu££icient to convict, may not be appealed and terminates prosecution when second trial would be necessitated by reversal, is binding on states, as is rule that jeopardy attaches when jury is impaneled or, in bench trial, when first witness is sworn or when evidence is taken. U.S.C.A. Const.Amend. 5. 3. CRIMINAL LAW �739.1(1) 110 ---- 110XX Trial 110XX(F) Province of Court and Jury in General 110k733 Questions of Law or of Fact 110k739.1 Entrapment 110k739.1(1) In general. Minn. 1983. When defendant elects to have claim of entrapment decided by trial court, trial court decides it as trier of fact. 4. DOUBLE JEOPARDY C�.�86 135H ---- 135HIV Effect of Proceedings After Attachment of Jeopardy 135Hk86 Retrial and premature termination of case in general. Formerly 110k180 [See headnote text below] 4. CRIMINAL LAW °G.�` 739.1(1) 110 ---- 110XX Trial 110XX(F) Province of Court and Jury in General 110k733 Questions of Law or of Fact 110k739.1 Entrapment 110k739.1(1) In general. Minn. 1983. If trial court as trier of fact decides that there was no entrapment, defendant is barred £som raising issue during jury phase of trial; on other hand, if trial court decides issue in defendant's favor, that is the same as finding of not guilty and therefore ends matter, causing prosecution to be terminated and further prosecution barred. U.S.C.A. Const.Amend. 5. 5. DOUBLE JEOPARDY G�103 135H ---- 135HIV E£fect of Proceedings After Attachment of Jeopardy 135Hk100 Acquittal Copyright (c) West Group 1998 No claim to original U.S. Govt. works 335 N.W.2d 745, State v. Abraham, (Minn. 1983) 135Hk103 What constitutes acquittal, in general. Page 3 Formerly 110k186 Minn. 1983. When trial court, acting as trier of Pact, decided that de£endants had been entrapped, prosecution was ended and decision constituted acquittal and double jeopardy clause barred appeal by State. U.S.C.A. Const.Amend. 5. *746 Syllabus by the Court Double jeopardy clause bars prosecutor from appealing from judgment of acquittal by trial court acting as trier of fact on issue of entrapment. Hubert H. Humphrey III, Atty. Gen., Norman B. Coleman, Jr., and Richard D. Hodsdon, Sp. Asst. Attys. Gen., St. Paul, Thomas G. McCarthy, County Atty., Winthrop, £or appellant. Carey & Emmings and John W Genty & Eggert and Richard D Carey, Fairfax, for Roland Abraham, et al. Genty, Winsted, for Scott Thomas. Considered and decided by the court en banc without oral argument. WAHL, Justice. This is an appeal by the state pursuant to Minn.R.Crim.P. 29.03, subd. 1. The appeal is from an order of the district court, which dismissed the prosecutions of 21 defendants for the gross misdemeanor offense of selling intoxicating liquor to a person under the age of 19, Minn.Stat. � 340.73, subd. 1(1982), and the prosecutions of 5 other defendants for the misdemeanor offense of selling nonintoxicating malt liquor to a person under age 19 for consumption on the premises, Minn.Stat. � 340.035, subd. 1(1) (1982). The state argues on appeal that the court erred in deciding that the defendants were entrapped into making the sales. We requested supplementary briefs on the issue of whether the state's appeal is barred by the double jeopardy clauses of the United States Constitution and the Minnesota Constitution. Holding that the appeal is barred, we dismiss the appeal. These prosecutions resulted from an investigation that had its genesis in the reception of complaints by the sheriff and county attorney for Sibley County that persons under the age o£ 19 were able to purchase alcoholic beverages in several named bars in the county without being required to show proper identification. The sheriff and county attorney decided in fairness that they should include all the bars and taverns in the county in their investigation. The sheriff obtained the assistance o£ an 18-year-old female and a 17-year-old male. In each case the decoys were instructed to enter the bar and attempt to purchase a 12-pack o£ beer if there was off-sale or a drink if on-sale only. In the latter situation, assuming a sale was made, they were either to carry the glass outside or empty it into a urine sample bottle. They were also told to 9�-�63 Copyright (c) West Group 1998 No claim to original U.S. Govt. works 9'� 763 Page 4 335 N.W.2d 745, State v. Abraham, (Minn. 1983) produce valid identification if asked for identi£ication and not to make any false representations concerning their age. Before and a£ter each night's investigation, they were given breath tests. The results, both before and after, were always .00, indicating that they did not consume any of the alcohol they bought. The decoys went to every bar and tavern in the county but one which was inadvertently missed. An undercover o££icer entered the bar £irst on each occasion and placed himself in a position where he could see the decoy(s) attempt a purchase. The *747 decoy(s) then entered and made the purchase. In four instances the undercover officer was not able to observe the sale. After the sale was made and the decoy(s) left the bar, another officer would enter the bar and, based on the description given by the decoy(s) and/or the undercover o£ficer, identify the person who made the sale. The cases were then forwarded to the county attorney for complaints. No arrests were made at the scene. A total of 23 bars and 29 bartenders were checked. Of the 29 bartenders, 27 in 21 bars made sales. One of the 27 was not charged because of identification problems. The remaining 26 were charged. Of the 29 bartenders who were checked, only 4 requested to see any identification card. (FN1) Two of the 4 sold beer anyway. The 2 who did not were not charged. Acting pursuant to State v. Grilli, 304 Minn. 80, 230 N.W.2d 445 (1975), the defendants waived their right to trial by jury on the issue o£ entrapment and submitted the issue to the trial court for decision at the omnibus hearing. The court decided the entrapment issue primarily on the basis of a written stipulation setting £orth the facts as we have stated them. The trial court reasoned that the officers, by using the decoys, violated the law themselves and that they in effect "ensnare[d] the law abiding and innocent into the commission of crimes [that do not] even require an intent on the part o£ the wrongdoer." Specifically, the court determined (a) that the state, throuqh its officers, violated the law in having the decoys purchase liquor and that this conduct constituted an improper inducement and (b) that the state had not proven that any of the defendants were predisposed to commit the crimes. With respect to this latter factor, the court stated that in its opinion the mere fact that the defendants willingly made the sales without inquiring was not itself indication of predisposition. The court concluded that if the defendants were not entrapped then "perhaps the defense of entrapment is inapplicable in cases involving sales of intoxicating liquor." [1] Minnesota follows the so-called subjective test of entrapment, and the defendant must raise the defense by showing by a fair preponderance of the evidence that the government induced the commission of the crime. Once the defendant has raised the issue by showinq inducement, the defense will bar a conviction unless the state can show beyond a reasonable doubt that the defendant was predisposed to commit the crime. State v. Ford, 276 N.W.2d 178, 182 (Minn.l979); State v. Gri1.Zi, 304 Minn. 80, 96, 230 N.W.2d 445, 456. Recently, in State v. Olkon, 299 N.W.2d 89, 107 (Minn.1980), cert. denied, 449 U.S. 1132, 101 S.Ct. 954, 67 L.Ed.2d 119 (1981), we stated that in order to show inducement the defense must show "something in the nature of persuasion, Copyright (c) West Group 1998 No claim to original U.S. Govt. works 9� ��03 335 N.W.2d 745, State v. Abraham, (Minn. 1983) badgering, or pressure by the state." We also stated in prosecution may prove predisposition "by evidence that the responded to the solicitation of the commission of a crime Page 5 Olkon that the accused readily by the state." A few courts have held that the defense of entrapment does not even apply to an illegal sale of liquor which does not require proof of any criminal intent. See, e.g., Lee v. State, 66 Ok1.Cr. 399, 92 P.2d 621 (1939). The general view, however, is that the defense does apply to liquor-sale offenses. The cases are collected in Annot., 55 A.L.R.2d 1322 (1957). A Minnesota case to this effect is State v. Boylan, 158 Minn. 263, 197 N.W. 281 (1924). We implied in Boylan that generally the de£ense of entrapment would not succeed in the context of liquor-sale offenses. *748 Cases that arise in the context of laws prohibiting the general sale of liquor are not completely in point because in those cases the defendant, by definition, knows that the sale is illegal. Cases that deal with the issue of entrapment in the context of sales to minors include Village of Spring Lake v. Gardner, 38 Mich.App. 189, 196 N.W.2d 5(1972); State v. Parr, 129 Mont. 175, 283 P.2d 1086 (1955). � It is strongly arguable that the trial court erred in determining that the defendants were entrapped. (FN2) However, we do not decide this issue because of our holding that the double jeopardy clause bars the state's appeal. [2] We base our holding that the state's appeal is barred on the decision of the United States Supreme Court in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). The general rule applied in Scott is that "[a] judgment of acquittal, whether based on a jury verdict o£ not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal." 437 U.S. at 91, 98 S.Ct. at 2193 (footnote omitted). Scott states that in determining whether a ruling by the trial court constitutes a judgment of acquittal, the trial court's characterization of its own action is not controlling. Rather, one must look behind the label and determine whether the trial court's ruling relates to the question of the defendant's factual guilt or innocence. The court stated: Our opinion in Burks [v. United States, 437 U.S. 1, 91 S.Ct. 2141, 57 L.Ed.2d 1(1978) ] necessarily holds that there has been a"failure of proof," *** requiring an acquittal when the Government does not submit sufficient evidence to rebut a defendant's essentially factual defense of insanity, though it may otherwise be entitled to have its case submitted to the jury. The de£ense o£ insanity, like the defense of entrapment, arises from "the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed of£ense," United States v. Russell, 411 U.S. 423, 435 [93 S.Ct. 1637, 1644, 36 L.Ed.2d 366] (1973), where other facts established to the satis£action of the trier of fact provide a legally adequate justification for otherwise criminal acts. Copyright (c) West Group 1998 No claim to original U.S. Govt. works 9� ��3 335 N.W.2d 745, State v. Abraham, (Minn. 1983) Page 6 Such a factual finding does "necessarily establish the criminal defendant's lack of criminal culpability," *** under the existing law; the £act that "the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles," *** af£ects the accuracy that determination, but it does not alter its essential character. By contrast, the dismissal of an indictment for preindictment delay represents legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation. of � 437 U.S. at 97-98, 98 S.Ct. at 2197 (footnote omitted). The rule o£ the Scott case is binding on the states, as is the rule that jeopardy attaches when the jury is impaneled or, in a bench trial, when the first witness is sworn or when evidence is taken. Christ v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). [3][4] As our decision in State v. Ford, 276 N.W.2d 178, 183, makes clear, when the defendant elects to have the claim of entrapment decided by the trial court, the trial court decides it as trier of fact. (FN3) Thus, *749. if the trial court as trier of fact decides that there was no entrapment, the defendant is barred from raising the issue during the jury phase of the trial. On the other hand, if the trial court decides the issue in the defendant's favor, that is the same as a finding of not guilty and therefore ends the matter, causing the prosecution to be terminated and further prosecution barred. Thus, although the state's appeal in the instant case is styled as a pretrial appeal, in reality it is an appeal by the state following an acquittal. [5] We indicated in Grilli that appeal by the state was pesmissible under Minn.Stat. � 632.11. 304 Minn. at 95, 230 N.W.2d at 455. Scott, decided subsequent to Gri11i, dictates a contrary result as to appeal. There has been criticism of the reasoning of the Scott case. See, e.g., Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct.Rev. 81, 143-145. However, we are bound by the Scott decision and the principles expressed therein. Following Scott, we hold that when the trial court, acting as trier of fact, decides that there was entrapment, that ends the prosecution and constitutes an acquittal from which the state may not appeal. Attorney for respondents Abraham, et al., is allowed $400 attorney fees on this appeal. Attorney for respondent Thomas is allowed $400 attorney fees on this appeal. Appeal dismissed. FN1. Minn.Stat. y 340.942 (1982) provides: In any criminal proceeding for the enforcement o£ the provisions oP sections 340.035, 340.73, 340.83, 340.941, relating to the sale or furnishing o£ non- intoxicating malt liquor or intoxicating liquor to the persons described therein, the defendant may establish by competent evidence that he has made a Copyright (c) West Group 1998 No claim to original U.S. Govt. works 335 N.W.2d 745, State v. Abraham, (Minn. 1983) � � /r��FN2 98-�� 3 Page 7 bona fide and careful investigation of the status of such person and he has determined upon evidence sufficient to convince a careful and prudent person that such sale is not a violation o£ said sections; such evidence shall be considered in determining whether the de£endant is guilty of intent to violate said laws. . The authorities attempted to include a11 the bars and taverns in the investigation and, althouqh they used "decoys," they did not try to deceive the sellers into thinking that the decoys were of age. De£endants did not show that the decoys persuaded, badgered, pressured or otherwise induced them to violate the law. The evidence that defendants readily sold the liquor, either without checking the identification cards of the decoys or without paying any attention to the information on the cards, showed that the defendants were predisposed to commit the crimes. FN3. The Ford case should be consulted for its analytical precision. Particularly, it clarified the meaning of the phrase "entrapment as a matter of law," a phrase which theretofore had been used rather loosely and confusingly. Copyright (c) West Group 1998 No claim to original U.S. Govt. works § 617.291 ABOItTION; OBSCE1vITY: HOUSES OF ILL-FAi� Historical and Statutory Notes 1987 Legislation dances, or other exL�bitions presented before an The 1957 amendmeut rewrote subd. 1 and ex- a"a'ence. For former text of subd. 1, see the maia volume. Section 3 of the ameadatory act Promded tended coverage of subd. 2 to disemition with- tyyt the amendment to this seciion was effeetive out monetary eonsideration in a plaee of publie �� 1, 1957, and applied to crimes committed accummodation, and to sexually explicit plays, on or after that date• 617293. Harmful materials; dissemination and display to minors prohibited Subdivision 1. Dissemination. It is unlawfi�l for any person lmowingly to sell or loan for monetary consideration to a ininor: (a) Any pietuxe. PhotogaPU, drawing. SculPture, motion pieture �film or similaz visuai representation or image of a peison or portion of the human body wluch depiets nudity, sexual eonduct, or sadomasochistic abuse and wtrich is hazmful to minors, or @) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in elause (a), or whieh contains explicit and detailed verbal descriptions or narrative accrounts of sexual excitement, sexual'conduct, or sadomaso- chistie abuse which, taken as a whole, is harmfnl to minors• Subd 2. Display. (a} It is unlawful for any person eommercially and lmowingly to exkubit or display any material which is harmful to minors in its content in any place of public accommodation where minors aze or may be present and where minois are able ta view the material unless eaeh item is kept in a sealed wrapper at all times. (b) It is unlawful for any peison coinmerciaIIY and Imoiaingly to exhibit or display any material the cover or paekaging of which, standing alone, is harmful Lo minoTS in any place of public accommodation where minors are or may be present or allowed to be present and where minors are able to view the material unless eaeh item is blocked from view by an opaque cover. The opaque eover requirement is satisfied if those portions of the cover or packaging containing the material I�armful to minors are blocked from view by an opaque cover. (e) The provisions of this subdivision do not apply to the exhibition or display of matei�ais harmful to minors under circumstances where minors are not present or are not able to view the material or the material's cover or packaging. A person may comply with the require- ments of this paragraph by (1) physically segregating the material in a manner that physieally prohibits access ta and view of the material by minors, (2) prominenUy posting at the entrance to the restricted area: "Adults only—you must be 18 to enter," and (3) enforcing the restriction. - Amended by Laws 1988, c. 452, § 1� eff. Aug. 1, 1988. Historical and Statutory Notes 1988 Legislation Laws 1985, c. 452, § 4, pmvided that Laws 1988, 'i7�e 1988 amendment designated subd 1 as e. 452, § 1, was effective August 1, 1985, and sueh, and added subd. 2, relating to display of applied to crimes eommitted on or after that date. harmfulmateria7s. ' - -. " Cross References Human service licensing, applieation procedures, see § 245A.04. � United States Supreme Court Child pornography, First Ainendment, scienter Ine, U.S.Cat.1994, 115 9.Ct 464, 513 U.S. 64, 130 presumption, knowledge of age and seYUallY explie- L.Ed2d 372, on remand 77 F.3d 491. it nature of material, see U.S. v. X-Citement vdeo, . 614294. Exhi6ition prohi6ited It is unlawful for any person knowingly to exhibit for a monetary consideration to a minor or Imownigly to sell to a minor an admission ticket or pass or Imowingly to admit a minor; 466 9� 7h3 Chapter 276. Dissemination of Indecent Materials to Minors" '�Editor's note--The chapter is derived from Ord. No. 16318, adopted July 19, 1977. A revised version, enacted by Ord. No. 16559, adopted Sept. 4, 1979, expired by its terms two yeazs from date of enactment. Sec. 276.01. DeSnitions. As used in this chapter and Chapter 275, the terms defined in this section shall have the following meanings ascribed to them: Harmful to minors means that quality of any description or representation, in whatever form of nudity, sexual conduct, sexual excitement or sadomasochistic abuse, when it: (1) Taken as a whole, predominantly appeals to the pnxrient interest in sex of minors; (2) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (3) Taken as a whole, lacks serious literary, artisric, political or scientific value for a legitimate minority of older, normal minors. Minor means any person under the age of eighteen (18) yeazs. Nudiry means the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a full opaque covering of any portion thereof below a point immediately above the azeola, or the depiction of covered male genitals in a discernable turgid state. Sadomasochistic abuse means flagellation ar torture by or upon a person clad in undergarments, in a revealing coshune, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed. Sexual conduct means acts of masturbafion, homosexuality, sexual intercourse or physical contact with a person's ciothed or unclothed genitals, pubic area, buttocks or female breast. Sexual excitement means the condition of human male or female genitals when in a state of sexual stimulation or arousal. (Code 1956, § 475.01; Ord. No. 17805, § 4, 1-24-91) Sec. 276.02. Prohibited. 9�-7(03 (a) It shall be unlawful for any person knowingly to disseminate, sell or loan for monetary consideration to a minor: (1) Any picture, photograph, drawing, sculpture, motion picture film or similar visual reproduction or image of a person or portion of the human body which depicts nudity, seaual conduct or sadomasochistic abuse and which is hazmfid to minors; or (2) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in the preceding subparagraph (i) hereof, or which contains explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, when taken as a whole, is hannfiil to minors. (b) It is unlawful for any person Irnowingly to e�chibit for a monetary consideration to a minor or knowingly to sell to a minor an admission ticket or pass or knowingly to admit a minor for a monetary consideration to premises whereon there is eafhibited a motion picture, show or other presentation which, in whole or in part, depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors. (c) Any person who shall violate the provisions of this section shall be guilty of a misdemeanor. (Code 1956, § 475.02) Sec. 276.03. Presumption and defenses. (a) A person who engages in the conduct proscribed by section 276.02 is presuxned to do so with knowledge of the character and content of the material sold or loaned, or the motion picture, show or presentation e�ibited or to be e�ibited. (b) In any prosecution for disseminating indecent or hatmful material to minors, it is an affirmative defense that: (1) The defendant had reasonable cause to believe that the minor involved had reached his or her eighteenth birthday; and (2) Such minor e�iibited to the defendant a draft cazd, driver's license, birth certificate or other official or apparently official document purporting to establish that such minor had reached his or her eighteenth birthday. (Code 1956, § 475.03; Ord. No. 17805, § 5, 1-24-91) Sec. 276.04. Reserved. 98 ��3 Editor's note--Section 276.04, providing exemprions from the provisions of this chapter and derived from Code 1956, § 475.04, was repealed by § 6 of Ord. No. 17805, adopted Jan. 24, 1991. ��' �� Sec. 310.05. Hearing procedures. (a) Adverse action; 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 conditions upon a license, or the denial of an application for the grant, issuance or renewal of a license, or the disapproval of a license issued by the State of Minnesota, the applicant or licensee shall be given norice and an opporhuiity to be heard as provided herein. The council may consider such adverse actions when recommended by the inspector, by the director, by the director of any executive department established pursuant to Chapter 9 of the Charter, by the city attorney 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 before 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 prepazed and served or mailed by the inspectar or by the city attorney. (c) Hearing. 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 heasing shail 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 sl�ail be provided an opportunity to present evidence and arguxnent 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 testimony or evidence or otherwise participate in such hearing. (c-1} Procedure; hearing examiner. The hearing examiner shall heaz 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, together with a recommendation for adverse action. The council sha11 consider the evidence contained in the record, the hearing examiner's recommended fmdings of fact and conclusions, and shall not consider any factual testimony not previousiy submitted to and considered by the hearing examiner. After receipt of the hearnag examiner's findings, conclusions, and recommendarions, the council shall provide the applicant or licensee an opportuniTy to present oral or written azguments alleging error on the part of the examiner in the application of the law or interpretarion of the facts, and to present azgument 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 azguments presented at the hearing, the council shall determine what, if any, adverse action shall be taken, which action shall be by resolution. Tlae council may accept, reject or modify the fmdings, conclusions and recommendations of the hearing examiner. 9� �� (c-2) Ex parte contacts. If a license matter has been scheduled for an adverse hearing, council members shall not discuss the license matter with each other or with any of the parties or interested persons involved in the matter unless such discussion occuts on the record during the hearings of the matter or during the council's final deliberarions of the matter. No interested person shall, with knowledge that a license matter has been scheduled for adverse hearing, convey or attempt to convey, orally or in writing, any information, azgument 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 regazding status, scheduling or procedures concerning a license matter. An interested person, for the purpose of this pazagraph, shall mean and include a person who is an officer 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 sha11 receive and keep a record of such proceedings, including testimony and e�ibits, and shall receive and give weight to evidence, including hearsay evidence, which possesses probarive value commonly accepted by reasonable and prudent persons in the conduct of their affairs. ( fl Council action, resolution to contain fzndings. Where the council takes adverse action with respect to a license, licensee or applicant for a license, the resolution by which such action is taken shall contain its findings and deternunation, including the imposition of conditions, if any. The council may adopt a11 or part of the findings, conclusions and recommendations of the hearing examiner, and incorporate the same in its resolution taking the adverse action. (g) Additional procedures where required. Where the provisions of any statute or ordinance require additional notice or hearing procedures, such provisions sha11 be complied with and shall supersede inconsistent provisions of these chapters. This shall include, without limitation by reason of this specific reference, Minnesota Starixtes, Chapter 364 and Minnesota Statutes, Section 340A.415. (h) Discretion to hear notwithstanding withdrawal or surrender of application or license. The council may, at its discretion, conduct a hearing or direct that a hearing be held regazding revocation or denial of a license, notwithstanding that the applicant or licensee has attempted or purported to withdraw or surrender said license or application, if the attempted withdrawal or surrender took place after the applicant or licensee had been notified of the hearing and potential 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 continuarion 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 makiug the request. 9� �� (j) If the council imposes an adverse action as defined in section 310.01 above, a generic notice of such action shall be prepazed by the license inspector and posted by the licensee so as to be visible to the public during the effecrive period of the adverse action. The licensee shall be responsible for taking reasonable steps to make sure the norice remains posted on the front door of the licensed premises, and failure to take such reasonable precautions may be grounds for fiirther 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 examiuer. The costs of a contested hearing include, but aze not Innited to, the cost of the administrarive law judge or independent hearing exauiiuer, stenographic and recording costs, copying costs, city staff and attorney time for which adequate recoxds have been kept, rental of rooms and equipment necessary for the hearing, and the cost of expert wimesses. 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 hazassment; (ii) the nature of the violarion 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, and/or the circumstances under which the violation occurred were aggravated and serious; (iii) the violation created a serious danger to the public health, safety or welfare; (iv) the violafion involved unreasonable risk of harm to wlnerable 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 409.26 of the Legislative Code; or (vii) the viola6on involved the sale of cigarettes to a minor. (1) Imposition 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. (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) Sec. 310.06. Revocation; suspension; adverse actions; imposition of conditions. (a) Council may take adverse action. The council is authorized to take adverse action, as defined in secrion 310A1 above, against any or all licenses or permits, licensee or applicant for a license, as provided in and by these chapters. Adverse acrions against entertaiument licenses issued under Chapter 411 of the Legislative Code may be initiated for the reasons set forth in g8-�b3 subsecfion (b) below, or upon any lawful grounds which aze communicated to the license holder in writing prior to the hearing before the council. Such actions shall be initiated and carried out in accordance with the procedures oudine in secrion 310.05; provided, bowever, that the formal notice of hearing shall be used to initiate the adverse action without the use of prior procedural steps. (b) Basis for action. Such adverse acrion may be based on one (1) or more of the following reasons, which are in addition to any other reason specifically provided by law or in these chapters: (1) The license or permit was procured by misrepresentation of material facts, fraud, deceit or bad faith. (2) The applicant or one (1) acting in his or her behalf made oral or written misstatements or misrepresentations of material facts in or accompanying the application. (3) The license was issued in violation of any of the provisions of the Zoning Code, or the premises which aze licensed or which aze to be licensed do not comply with applicable health, housing, fire, zoning and building codes and regulations. (4) The license or permit was issued in violation of law, without authority, or under a material mistake of fact. (5) The licensee or applicant has failed to comply with any condition set forth in the license, or set forth in the resolution granting or renewing the license. (6) a. The licensee or applicant (or any person whose conduct may by law be imputed to the licensee or applicant) has violated, or performed any act which is a violation of, any of the provisions of these chapters or of any statute, ordinance or regulation reasonably related to the licensed activity, regardless of whether criminal charges have or have not been brought in connection therewith; b. The licensee or applicant has been convicted of a crime that may disqualify said applicant from holding the license in question under the standards and procedures in Minnesota Statutes Chapter 364; or a The licensee or applicant (or any person whose conduct may by law be nnputed to the licensee or applicant) has engaged in or permitted a pattern or practice of conduct of failure to comply with laws reasonably related to the licensed acrivity or from which an inference of lack of fitness or good chazacter may be drawn. (7) The activifles of the licensee in the licensed activity created or have created a 9� 7l0 3 serious danger to the public health, safety or welfaze, or the licensee performs or has performed his or her work or activity in an unsafe manner. (8) The licensed business, or the way in wYrich such business is operated, maintains or pernuts condirions that unreasonably annoy, injure or endanger the safety, health, morals, comfort or repose of any considerable number of inembers of the public. (4) Failure to keep sidewalks or pedestrian ways reasonably free of snow and ice as required under Chapter 114 of the Saint Paul Legislative Code. (10) The licensee or applicant has shown by past misconduct or unfair acts or dealings: physical abuse, assaults or violent actions done to others, including, but not limited to, actions meeting the definition of criminal sexual conduct pursuant to Minnesota Statutes Sections 609342 through 6093451; sexual abuse, physical abuse or maltreatment of a child as defined in Minnesota Statutes Section 626.556, subdivisions 2 and 10e, including, but not limited to, acts which constitute a violation of Minnesota Statutes Sections 609.02, subdivision 10; 609321 through 6093451; or 617.246; neglect or endangerment of a child as defined in Minnesota Statutes Section 626.557, subdivision 2; the manufacture, distribution, sale, gift, delivery, transportation, exchange or barter of a controlled substance'as defined in Minnesota Statutes Chapter 152; the possession of a controlled substance as defined in Minnesota Statutes Chapter 152 in such quanrities or under circumstances giving rise to a reasonabie inference that the possession was for the purpose of sale or distribution to others; or by the abuse of alcohol or other drugs, that such licensee or applicant is not a person of the good moral character or fitness required to engage in a licensed activity, business or profession. (ll) The licensee or applicant has materially changed or pernutted a material change in the design, construction or configuration of the licensed premises without the prior approval of the city council in the case of Class III licenses, the director in the case of Class II licenses, and the inspector in the case of Class I licenses, ar without first having obtained the proper building permits from the city. (12) The licensee or applicant has violated section 294.01 of the Legislative Code, or has made or attempted to make a prohibited ex parte contact with a council member as provided in section 310.05(c-2) of the Legislative Code. The terms "licensee" or "applicanY' for the purpose of this section shall mean and include any person who has any interest, whether as a holder of more than five (5) percent of the stock of a corporation, as a partner, or otherwise, in the premises or in the business or acfivity which aze licensed or proposed to be licensed. With respect to any license for activiries entiUed to the protection of the First Amendment, notwithstanding the foregoing provisions, neither the lack of good moral character or fimess of 9�-763 the licensee or applicant nor the content of the protected speech or matter shall be the basis for adverse action against the license or application. (c) Imposition of reasonable conditdons andlor restrictions. When a reasonable basis is found to impose reasonable conditions and/or restrictions upon a license issued or held under these chapters, any one (1) or more such reasonable conditions and/or restrictions may be imposed upon such license for the purpose of promoting public health, safety and welfaze, of advancing the public peace and the elimuiation of conditions or actions that constitute a nuisance or a detriment to the peaceful enjoyment of urban life, or promoting security and safety in nearby neighborhoods. Such reasonable conditions and/or restrictions may include or pertain to, but aze not limited to: (1) A limitation on the hours of operation of the licensed business or establishment, or on particulaz types of activities conducted in or on said business or establishment; (2) A limitation or restricfion as to the location within the licensed business ar establishment whose [sic] particular type of activities may be conducted; (3) A lunitation as to the means of ingress or egress from the licensed establishment or its parking lot or ixnmediately adjacent area; (4) A requirement to provide off-street parking in excess of other requirements of law; (5) A limitation on the manner and means of advertising the operation or merchandise of the licensed establistunent; (6) Any other reasonable condifion or restriction luniting the operation of the licensed business ar establishxnent to ensure that the business or establishxnent will hannonize with the character of the area in which it is located, ar to prevent the development or conrinuation of a nuisance. The inspector may impose such conditions on Class I licenses with the consent of the license holder, or may recommend the imposition of such conditions as an adverse acrion against the license or licenses; the inspector has the same power with respect to Class II licenses. The council may impose such conditions on Class III licenses with the consent of the license holder, or upon any class of license as an adverse action against the license or licenses following notice and hearing as may be required. Such conditions may be imposed on a license or licenses upon issuance or renewal thereof, or upon and as part of any adverse action against a license or licenses, including suspension. Conditions imposed on a license or licenses shall remain on such licenses when renewed and shall continue thereafter until removed by the council in the case of conditions on Class III licenses or conditions imposed by adverse action, and by the inspector in the case of Class I and II licenses. 98 (d) Standards for muZtiple Zicense determination. In any case in which the council is authorized to take adverse action against less than all of the licenses held by a licensee, or applied for by an applicant, the following standards may be used: (1) The nature and gravity of the grounds found by the council to exist upon which the adverse action would be based; (2) The policy and/or regulatory goals for the particular licenses involved, either as embodied in the Legislative Code or as found and deterniined by the council; (3) The interrelationship of the licenses and their relative importance to the overall business enterprise of the licensee or applicant; (4) The management practices of the licensee or applicant with respect to each of such licenses; (5) The ea�tent to which adverse action against less than all of the licenses or applications would result in difficulty in enforcing and monitoring the adverse action taken; (6) The hazdship to the licensee or applicant that would be caused by applying adverse acrion to all licenses or applications; and (7) The hardship and/or danger to the public, or to the public health and welfare, that would result from adverse action against less than ali of the licenses or applications. (Code 1956, § 510.06; Ord. No. 17584, § 1, 8-25-88; Ord. No. 17657, § 15, 6-8-89; Ord. No. 17659, § 2, 6-13-89; Ord. No. 17901, §§ 2, 3, 1-14-92; Ord. No. 17917, §§ 2, 3, 3-31-92; Ord. No. 17922, § 1, 4-28-92; C.F. No. 94-500, § 3, 7-6-94; C.F. No. 94-1340, § 3, 10-14-94; C.F. No. 95-473, § 5, 5-31-95) 98_� �3 § 310.15 LEGISLATIVE CODE definition in section 310.01, shall for the purpose of this section inciude the individual partners or members of any partnership or corporation, and as to corporations, the o�cers, agents or mem- bers thereof, who shall be responsibie for the violation. (Code 1956, § 510.15) Sec. 310.16. Reserved. Editor's aote-Section 310.16, pertaiaing to license fees aad anauai inczeases, and derived from Ord. No. 16885, adopted Feb. 11, 1982; Ord. ?�o. 17059, adopted Oct. 20, 1983; and Ord. No. 17303, adopted Oct. 29, 1985, was repealed by Ord. No. 17584, § 1, adopted Nov. 19, 1991. Sec. 310.17. Licensee's responsibility. Any act or conduct by any clerk, employee, manager or agent of a licensee, or by any person providing entertainment or worldng for or on behalf of a licensee, whether compensated or not, which act or conduct takes place either on the Ticensed premises or in any parking lot or other area adjacent to (or under the lease or control ofl the licensed premises, and which act or conduct violates any state or federal statutes or regula- tions, or any city ordinance, shall be considered to be and treated as the act or conduct of the licensee for the purpose of adverse action against all or any of the licenses held by such licensee. To the estent this section is in conflict with sections 409.14 and 410.09 of the Legislative Code, this section shall be controlling and prevail; but shall not otherwise amend, alter or affect such sections. (Ord. No. 17629, § 1, 1-31-89) Sec. 310.18. License fee schedule. Notwithstanding the provision of any other ordinance or law to the contrary, the following fees aze hereby provided for all the licenses listed herein. These fees supersede all inconsistent pro- visions, including, but not limited to, graduated fee provisions, in these chapters and in other ordinances and laws, and include the fee for the license application as part of the license fee; provided, however, that this section does not amend or modify sections 310.09(a) or 310.09(d) of the Legislative Code with respect to exempt orga- nizations or late fees. Pursuant to section 310.09(b) of the Legislative Code, these schedules shall be posted in the office of the directar of the office of license, inspections and environmental protec- tion. These fees shall be effective for license renewals and new license applications occurring on and after January 1, 1995, or on the effective date of this section, whichever is later; provided, however, that with respect to all licenses whose renewal dates occur after the effective date of this new schedule, there shall be no increases in, nor offsets or refunds of, the eaisting fees paid, or due 2nCl Owing. . (a) ENFORCEMENT LEVEL 1 Chapter/Section No. License Description Fee 167 Commemaal Velvcle $66.00 198.04 Keeping of animals (Exotic Pets) 66.00 316 Animal Foods Management & Dis- tribution 66.00 317 Amusement Rides 66.00 323 Christmas Tree Sales 66.00 325 Close Out Sale . 66.00 327 Dry Cleaning Pickup Statioa 66.00 332 Liquid Fuel Ve]vcle 66.00 333 Solid Fuel Yelucle 66.00 336 Private F�el Pump 66.00 340 Mercantile Broker 66.00 345 Peddler (SoliciWr/h�ansient) 66.00 348 iteatal of Clothing & Uehicle ' 66.00 349 Rental of Clothes Attire Vehicle 66.00 350.02 Rental of Hospitat Equipment 66.00 350.02 Rental of Hospital Equipment Ve- hicle 66.00 351 � Rental of Kitchenware 66.00 353 Roller Rinks 66.00 355.01 Secondhaad Dealer- (a) & (b) Siagle Location 66.00 357.03 Refuse HaulerEach Vehicle Over One -� 66.00 359 Souad 'hvcks & Broadcast Uehi- cles 66.00 371 Finishing Shop 66.00 361.14 1bw Truck/4Vrecker Vehicle 66.00 362 1Yee lkimmeaAdditioaal Uehicle 66.00 372 Tire Recappiag Plant 66.00 376.16(d) Taxicab Driver (new) 66.00 377 Lawa Fertilizer & Pesticide Ap- plication 66.00 380 , Tanning Facility 66.00 382 � Pet Grooming 66.60 409.11 OuW oor Change in Service Area 66.00 412 Massage Center (Class B) - 66.00 414 Massage Therapist 66.00 424.02 Gasoline Filling Statioos 66.00 Supp. No. 33 2036 98-� 3 OFFICE OF ADNIIl�TISTRATTVE HEARINGS FOR THE COUNCIL OF THE CITY OF SAINT PAUL In re all licenses held by Jill D. Rasmuson, d/b/a R& R Books, for the premises located at 674 W. UniversiTy Avenue CITY'S PROPOSED EXFIIBITS TO: Judge Barbaza Neilson, Admiuistrative Law Judge, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, MN 55401 The following constitutes a list of the City's proposed e�ibits far the Administrative Law Hearing on June 9, 1998. E�hibit No. E�. No. 1 Eyh. No. 2 E�. No. 3 Exh. No. 4 Description License Screen Information Printout (1 p.) Saint Paul Police Report CN# 98-047-674 Notice of Violation dated April 17, 1998 with Affidavit of Service (3pp) Notice of Hearing dated May 8, 1998, with Affidavit of Service (4pp) C+'.({.�D.'J �62M�S-�!"�.�1 5�.1P �2 M�..(u(L � nM2:ac�PRT�• �" co M Q�-t �1-.JG.c Cl4c c.k- � t�J • Also attached, please find copies of the applicable aint Paul city ordinances and state statutes: Minn. Stat. §617293 Saint Paul Legislative Code Chapter 276 Saint Paul Legislative Code §310.05 Saint Paul Legislative Code §310.06 Respectfiilly submitted this 9�' day of June, 1998 %� �?s � Virginia Palmer Assistant City Attorney 400 City Hall Saint Paul, MN 55102 (612)266-8710 98 Lic ID......•••••••••.••• STAT..........•••......•- Business Name............ Address .................. Zip ................••••.. Doing Business As........ License Name ............. E� Date ................. Insurance Carrier........ Ins. Policy Number....... Insurance Effective Date. Ins. Expiration Date..... NOTE AREA ................ Tax Id ................... Worker Comp Exp Date..... Telephone ................ 32901 AC RASMUSON, JILL D 674 UNIVERSITY AVE W 55104 R & R BOOKS MAD MACHINE IN EXCESS OF 10 MECH AM[7SE DEVICE OPER W/10 MADS 10/31/98 INSP CHANGE FROM 02 TO O1 ON 4/09/92 INSPECTOR CHANGE FROM BARB TO MIKE - 1/6/92 1994 MAD(0056-0075) 3934023 10/15/95 228-1055 4 n e e icenses e y i .� mus � — d/b/a R & R Books , City's Exh. # 1 - Qe•d Pa _�_� I Day enth Daze r � Ciass: Lxsfion Of CF Tims 8 Date o( Occurte�xe: o«„Rad �ae O senv�,: iL6 £ZS9Z6zZi9 ST. PAUL POLIGE DEPARTMENT GENEAAI REPORT n�. on �t 2- 9R�,a � n�e. «, nea�: ldo F' f 1-� + G t f- (�, �` rA � '� a c F}� Middle ��as 05:7T 866t-90 `�'-7�v�3 tmense: �'q !4 o r L`'� " a 7 U� Bas. Phone �Disposl8otr. ❑ Records � Crime Lsb n a.s� �� DO � �� A . . _"_ —.. _ . .___ -�----- . On 43:28_Squad.742 did a-compliance-check atR&RBaaksb?4W. •�----- - University with the assistance of Off. Reilly and Kris Schweinler of LIEP. Our puipose was to --- —__. .._ ..... _.. ��detemvne if employees'woui8' ckeck £or iderifificafioa of the nridecage person or sell an ttem o£ �� ---_ _-- sexi`ally e nature verM:umesota Statpte .Z24�......_—�._.._.. .---- ---- --- - _---- Prior to going out, T met the undercover person wiih a DOt3 0£ 8-3-82 in tkte office of the � --�ice-Unit-aE-HQ—I-phofographed� and-am retaining photo Vice YJ'nit-"I�tis •--• ___ ._ - Schvteinler provided a perntission slip signed by his parem to take part in this operation�He v_vg,c...___._ .... .. ,- -�-- searefied and had no TD. He was 15 yeus old. __ _-- 2�t-1602hours I had the undarcaver--go into the establishment: He had been-givert-money � ---` to purchase the materials with and had no sexually expficit material on lus person. I Followed him .__ _.. _,_.. _ _____ _ _�._� .. "'�""ut`s�i ttiereafte"r, I no_ there was orie c liefiind fhe counter. '�he undercover chose a . . , : « ..____. __ moyie&alled."Qur.Bang...An Orgy.inHvery.Box'=and-a.tuvn-Pack.magaztne.eutRled-Adam and-_.._...--..... Raide�' that were sealed in plastic from among the selections available on the shelves. I observed _ �-- �-- -the undenovertake the selectionstorthe connter: - �'he clerl�'wiihout"fiesitation'r�ag up the � purchase without asking foi TD, placed the items in a bag, took moncy.from the undercover artd_ _, ...._ _.._. gave the items to him. -_. _. ____�I-follav�ed hun out to-the-car•where Off Reil}y-and I4ris Schweinlerwerewaiting. had the undereover sit in the cat while the rest of us went into the establishaient to confront the .. _. _ _.._.....---_ _... ___.____-------..._..__.__ ..__--- ...-----..__ ____...__......... .._....... .. ..'. castuer. Lenteted, display.edlny.pohee.badge.and idenUfied.myself as a St. Paul-PohceSergeant of -..._ the Vice Unit to the cashier later ID'd as Dirl, Calvin Everett 743 Cazroll Ave. 55104 home -- -- - � ---- phone 291=1370. DdB "&25=41. He said "If's:ny �fault" iri ifiaE tie didn'£ che`cic fo� TA'froin t�e �� ___.._,_ undercover. He went on to day_tfiat he.had beep.working there.for ten years. I told himthstl-..--• �- would prepare a repor[ for the prosecutor to consider charges against him for selling sexually �- -explicit-materiaIs to a minor. He was nottaken into-custody. °--� Once back at HQ, I briefly reviewed the video. It contained sexually explicit _material� I_„ .._.�.._... - --..._._ . . . �--- reiiiove� th'e plasiic�wrappe`r of ttie magaunes and observed numerous photos of people's genitalia.but no penetration._The case containing the video was very worn indiwting that the -- - video had been ased for some time possibly as a rental. �-- The video and magaanes were placed in the Property Room as evidence. Thi, ca�e wa� �arrr takee ta Till G�rber of the St. Paul City Atty's Office for GM screening. No.: ] Dl� ❑ BO 9❑ Th� 0 Pu°P ❑ Cf�U � F&P Q Au�to ❑ DAO ❑ C� m i rNn��rn i S c x«a r �)- � l.sb LncE ri Room rill 0 z � oO � J J � d/b/`d R aSi I2 �OOkS � City's Exh. # 2 GV�JGDYY 1.� LV � � �'�+'� �/ r "/ � C SA[N2 PAUL i • � � AAAA April 17,1998 9� r�3 OFF�OF Tf� CITY ATTORNEY Peg ityAttorney Civi7Division 400 Ciry Ha71 Te%phone: 672 266-8710 1 S Wes[ Kel7ogg Blvd Facsimile: 612 298-5679 Saint Paul, Minnesot¢ 55101 NOTICE OF VIOLATION Owner/Manager R & R Books 674 University Avenue West Saint Paul, Minnesota 55104 RE: All licenses held by Jill D. Rasmuson d/b/a R& R Books for the properry located at 674 University Ave. W. in St. Paul License ID No.: 32901 Our File No.:98-0156 Dear Sir/Madam: The Director of the Office of License, Inspections and Environmental Protection is recommending that adverse action be taken against your license. The basis for the adverse action is: On or about April 6, 1998 you or another employee sold sexually ezplicit material to a minor. This is a violation of Minn. Stat. § 617.293 subd. 1(a) and subd. 1(b), and Saint Paul Legislative Code § 276.02(a). If you do not dispute that the above incident took place, please send me a letter with a statement to that effect. The matter will then be scheduled for a hearing befare the St. Paul City Council to determine what penalty, if any, to impose. You will have an opporlunity to appeaz and speak on your own behalf, or to have someone appear there for you. On the other hand, if you wish to dispute the above facts, I will schedule an evidentiary hearing before an Administrative Law Judge (AL�. If you wish to have such a hearing, please send me a letter stating that you aze contesting the facts. You will then be sent a"Notice of Hearing," so you will know when and where to appeaz, and what the basis for the hearing wili be. �n e e icens �� — d/b/a R & R Books _ City's Exh. # 3 Page 2 R & R Books Apri117,1998 • � 9�'�� In either case, please let me know in writing no later than Wednesday, April 29,1998, how you would like to proceed. If I have not heard from you by that date, I will assume that you are not contesting the facts. The matter will then be scheduled for the hearing before the St. Paul City Council, If you have any quesrions, feel free to call me or have your attorney call me at 266-8710. Sincerely, __; / � Virginia . Palmer Assistant Ciry Attorney � �--�' ✓�^a� cc: Robert Kessler, Director, LIEP Christine Rozek, LIEP Peggy Byme, Exec. Director, Summit-University Planning Council, 627 Selby Ave., St. Paul, MN 55104 i STATE OF MINNESQTA ) ) Ss. COUNTY OF RAMSEY � q�-��3 AFFIDAVIT OF SERVICE BY MAIL JOANNE G. CLEMENTS, being first duly sworn, deposes and says that on April 17, 1998, she served the attached NOTICE OF VIOL,ATION on the following named person by placing a true and correct copy hereof in an envelope addressed as follows: Owner/Manager R & R Books 674 University Avenue W. St. Paul, MN. 55104 (which is the last known address of said person) and depositing the same, with postage prepaid, in the Unite�ates mails at St. Paul, Minnesota. Subscribed and sworn to before me this 17th d�-s�f Aari1�1998. •�¢p sendx3 •wwdJ ^�' �, —� e �yAytl10N on' �d'da31.3d ` • OFF� OF THS CITY ATTORNHY Peg CiryAnnrney �� OF SAINT PAUL leman, Mayor W� May 8, 1998 CrvilDivisian 400 Gry Hn1l IS {Yert%lloggBlvd Saint Pau� Minnesnta 55702 NOTICE OF HEARING Mr. David Gronbeck Law Offices 701 Fourth Avenue South, Suite 1700 Minneapolis, Minnesota 55415 RE: All licenses held by Jill D. Rasmuson d/b/a R& R Books for the premises located at 674 University Ave. W. in St. Paul License ID No.: 32901 Our File Number: G98-0156 Dear Mr. Gronbeck: Telephon¢: 671266.8�10 Fa1simile 67219&5619 Please take notice that a hearing will be held at the following time, date and piace concerning ail licenses for the premises stated above: Date: Tuesday, June 9,1998 Time: 9:30 a.m. Place: Room 42 St. Paul City Hall 15 W. Kellogg Blvd. St. Paul, MN. 55102 The hearing wiil be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: l�ame: Barbara Neiison Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN, 55401 Telephone: 341-7604 � ■ _ d/b/a R & R Books _, City's Exh. # 4 � � � • • y�-?�3 The Council of the City of Saint Paul has the authority to provide for hearings conceming licensed pretnises and for adverse action against such licenses, under Chapter 310, inciuding sections 310.05 and 310.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non- into�cating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action against all the licenses held at the above premises as follows: On or about April 6, 1998, an employee of the licensed establishment sold sexually eaplicit material to a minor. This is a violafion of Minn. Stat. § 617.293 subd. l(a) and subd. l(b), and Saint Paul Legislative Code § 276.02(a). The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrafive Law 7udge will have all parties idenfify themseives for the record. The City will then present its witnesses and evidence, each of whom the licensee or attorney may cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the Ciry's attomey may cross-examine. The Administrative Law Judge may in addition heaz relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding azguments may be made by the parties. Following the hearing, the Judge will prepaze Findings of Fact, Conclusions of Law, and a specific recommendation for ac6on to be taken by the City Council. You should bring to the hearing all documents, records and wimesses you will or may need to support your position. Subpoenas may be availabie to compel the attendance of witnesses or the production of docuxnents in confomuty with Minnesota Rules, part 1400.7000. If you think that this matter can be resolved or settled without a formal hearing, please contact or have your attomey contact the undersigned. If a stipulation or agreement can be reached as to the facts, that stipulation will be presented to the Admiuistrative Law Judge for incorQoration into his or her recommendarion for Council action. If the licensee or their legal representative faiis to appeaz at the hearing, the licensee's ability to challenge the allegations will be forfeited and the allegations against them which have been stated eazlier in this notice may be taken as hue. If non-public data is received into evidence at the hearing, it may become public unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. Notice of Hearing - Page 2 - � ' � � `�`�" If you have any questions, you can call me at 266-8710. Very truly yours, � �- ' .�c, �` l•� C�.. r�l �j � Vuginia D. Palmer Assistant City Attomey cc: Nancy Thomas, Office of Aduiinish-ative Hearings, 100 Washington Square, Suite 170Q Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Peggy Byrne, Exec. Director, Sununit-University Planning Council, 627 Selby Ave., St. Paul, MN 55104 Notice of Hearing - Page 3 r� � STATE OF MINNESOTA COUNTY OF RAMSEY ss. � (`�-?�e3 AFFIDAVIT OF S13RVICE BY MAIL JOANNE G. CLEMENTS, being Eirst duly sworn, deposes and says that on May 8, 1998, she served the attached NOTICE OF HEARING on the following named attorney by placing a true and correct copy thereof in an envelope addressed as follows: Mr. David Gronbeck Law Offices 701 Fourth Avenue Suite 1700 Minneapolis, MN. South 55415 (which is the last known address of said attorney) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and this 8th � Notary Publ to before me PETER P.PANGBQRN OTARY OUBUC - MINNESOTA ' QDrmt Expires Jan. 31. ZOq '/- OFFICE OF LtCENS$ INSPECTTONS AND ENVIRONMENTAL pROTECi10N RnbatKurkr,Dtreator �� '��--��--��.........:::...�...��' CITY OF SAIIVT PALJL !A[iRYPROF£SSlONALBUII�ING Te[ephone: 612-2659090 ,{�' NarmCokmcn,Mayor Su1te300 Facsimik: 61b246-9099 I�I 350St PuoSveU 612-2669I2!" Sai�uPau(�nnerom 55102-ISIO I hereby give my pemussion for my son/daughter Yn �o participate in compliance check with Saint Paul License Enforce nt and the Saint Paui Police Department. H'is/Her date of birth is � c� �'�- . P �'�2 3 g� Signature Date �n e . e icen s — d/b/a R & R Books � City's Ezh. # 5 — May 27, 1998 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Sude 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Kel4ogg Boulevard St. Paul, MN 55102 g�� RE: In the Matter of All Licenses Held by Jill D. Rasmuson, d/b/a R& R Books for the Premises Located at 674 Universiry Avenue West in St. Paul, License ID No. 32901; OAH Docket No. 11-2111-11700-3 Dear Ms. Palmer: Pursuant to the May 21� written request of Peter Pangborn, enclosed is an original and one copy of a subpoena issued to Sergeant Richard Wachal regarding the above-entitled matter. Sincerely, �, ,_—_-� a Ci LS n�-� �� C� LaVon Regan Legal Secretary Telephone: 612/341-7448 Ir Prowdi�g Impartial Heanngs for Government and Ciitizzens An Equal Oppo E mployer Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 �/�� - �... STATE OF MINNESOTA OFFICE OF ADMIl�iISTRATIVE HEARINGS ;;�."� HEARIIVG S[IBPOENA TO: Sergeant Richard Wachal, St. Paul Police Department 100 East 11�' Street, St. Paul, MN 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Administrative Law Judge Barbara L. Neilson of the Office of Administrative Hearings of the State of Minnesota, at St, Paul City Hall, Room 42, 15 West Keilogg Boulevard, in the City of St. Paul, Ramsey County, Minnesota, on the 9th day of June, 1998 at 9:30 o'clock in the forenoon, to appear as a witness in the matter of: All Licenses Held by Ji�l D. Rasmuson. d/b/a R& R Books for the Premises Located at 674 University Avenue West. St. Paul• License No. 32901: OAH Docket No. 11-2111-11700-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chief Administrative Law Judge, at Minneapolis, Minnesota this 27th day of May, 1998. cs, KEN� ETH A. NIGKOLAI Chief Administrative Law Jud e 612/341-7600 Subpoena requested by: vrginia Palmer, 612/266-8776 9$ STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARIlVGS HEAItING Si7BPOENA � *'i'a,"s+ TO: Sergeant Richard Wachal, St. Paul Police Department 100 East 11�' Street, St. Paul, MN 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Administrative Law Judge Barbara L. Neilson of the Office of Administrative Hearings of the State of Minnesota, at St, Paul City Hall, Room 42, 15 West Kellogg Boulevard, in the City of St. Paul, Ramsey County, Minnesota, on ihe 9th day of June, 1998 at 9:30 o'clock in the forenoon, to appear as a witness in the matter of: All Licenses Held bv Jiil D. Rasmuson. d/b/a R& R Books for the Premises Located at 674 Universitv Avenue West. St. Pauh License No. 32901: OAH Docket No._11-2111-11700-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chief Administrative Law Judge, at Minneapolis, Minnesota this 27th day of May, 1998. Gs, � KEN� ETH A. NICKOLAI Chief Administrative Law Jud e 612l341-7600 Subpoena requested by: Virginia Palmer, 612/266-8776 OFFICE OFTHE CITYATTORNEY PegBtrJFCityAttorney ��_�� CITY OF SAINT PAUL � - � _' ��` ` `"' Norm Coleman, Mayor �i ,�, ts p, *� � t+- f• rt .:.l�n, /? F;� �:i" US .-. -.�:'�rl ��'vL ��._Y:IVIi'�� May 21, 1998 Judge Bazbara Neilson c/o Louise Cooper Office of Aduiinistrative Heazings 100 Washington Square, Suite 1700 Minneapolis, Minnesota 55401-2138 Civi1 Divirion 400 Ciry Hall IS West KellaggBlvd Saint Paul, Minnesom 55102 Telephone: 612 266-8710 Facsimile: 672 298-5619 VIA FAX AND U.S. MAIL RE: Licenses held by Jill D. Rasmuson d/b/a R& R Books for the premises located at 674 University Ave. W. in Saint Paul Our File Number G98-0156 Deaz Judge Neilson: The purpose of this letter is to request a subpoena pursuant to Minnesota Rules, part 1400.7000 relating to the above-mentioned contested case hearing that is scheduled to be heard befare you on Tuesday, June 9, 1998. This request is made of behalf of Ms. Virginia Palmer, the attorney assigned to this matter. The City of St. Paul licensing division will be calling this witness to testify regazding the incident which serves as a basis for the action against the licenses of Jill D. Rasmuson d/b/a R& R Books. In order to ensure this individual will be in attendance to testify, the City of St. Paul requests from the State Office of Administrative Hearings a subpoena for the following individual: 1. Sergeant Richard Wachal Saint Paul Police Department 100 East 11�' Street Saint Paul, Minnesota 55101 Page 1 9�-��3 The hearing is scheduled to start at 9:30 a.m. on Tuesday, June 9, 1998, in Room 42, St. Paul City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102. If you need additional information or have any questions regazding this request, please do not hesitate to call me at 266-8776. Thank you for your consideration in this matter. Sincerely / / Peter P. Pangborn Pazalegal Page 2 OFFICE OF THE CITY ATTORNSY 4 Peg Bi�k, Crry Attorney OF SAINT PAUL leman, Mayor �� M lVL La %� Mi �\'N Dea Plet lice� The. Offic N U p a r N ✓ iJ � O iA � F� O C� � I--'� O �'h \ � � O � O � m ��r c�o tv p� m o zs m � td O �" O I-° Sv 1—' F'� � tn �$ F'� � N CY � � � �] �$ O � O W z��roz • U. V• (D (D � � �$ W � ci' F-' vt �-�$ f� O r N cr � O � i-'• � c m co µx �m m � F' V• � � O Q4 o � _ _ „;. _.,.�V`f �E� 7J �it�i � � �Y,I�l i't�i� � � � � I � o O S 'T1 m � n � � � � � O [ � '` r Civi1 Divisiort 400 Cuy Ha11 IS W¢st X¢[[agg Blvd nt¢ SSIO2 O �n O � ^ O '� � � � a � �2 �= x �� a 2 � {�e � .�^. = o i o � = J N � � a. Z � 0 A � Telephonc 671266$710 Faaimi[e: 6I2 29&5619 date and place concerning all . � � '" --,� `'.�! , ! V ` � \� i e �� ' ' � �*+»" . ��,, �-��*�� INa from the State of Minnesota � yg �� The Council of the City of Saint Paul has the authority to provide for hearings conceming licensed premises and for adverse action against such licenses, under Chapter 310, including sections 310.05 and 310.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non- intoaficating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penaities or conditions. Evidence will be�presented to the judge which may lead to adverse action against a11 the licenses held at the above premises as follows: On or about April 6, 1998, an employee of the licensed establishment sold segually eaplicit material to a minor. This is a violation of Minn. Stat. § 617.293 subd. l(a) and subd. 1(b), and Saint Paul Legislative Code § 276.02(a). The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Admiiustrative Law Judge wiil have all parties identify themselves for the record. The City will then present its witnesses and evidence, each of whom the licensee or attorney may , cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the City's attorney may cross-examine. The Administrative Law Judge may in addition heaz relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding arguments may be made by the parties. Following the hearing, the Judge will prepaze Findings of Fact, Conclusions of Law, and a specific recommendation for action to be taken by the City Council. You should bring to the hearing all documents, records and witnesses you will or may need to support your position. Subpoenas may be available to compel the attendance of witnesses or the production of docuxnents in conformity with Minnesota Rules, part 1400.7000. if you think that this matter can be resolved or settled without a formal hearing, please contact or have your attorney contact the undersigned. If a stipulation or agreement can be reached as to the facts, that stipulafion will be presented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. If the licensee or their legai representative fails to appear at the hearing, the licensee's ability to challenge the allegarions wiil be forfeited and the allegations against them which have been stated earlier in this notice may be taken as true. If non-public data is received into evidence at the hearing, it may become pubiic unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. Notice of Hearing - Page 2 If you have any questions, you can calI me at 266-8710. ��✓ `"'� Very truly yours, � I .✓v✓.�J �, Vuginia D. Palmer Assistant City Attorney cc: Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Peggy Byrne, Exec. Director, Summit-University Planning Council, 627 Selby Ave., St. PauI, MN 55104 . Notice of Hearing - Page 3 O (� n '"� � � � O s 'z7 m � � � -3 � � � � ro m � �r t+ �+ p c r + hy Y i�i Fv ;�v�NO z Y� � O �h W � c � N c�i N N � O �, 4v S+� N KS F-� m �3 O 1 �' O �' i-' O k-'� F O 4-'• O � � � � � � O � � � � . � N. � � V� P� �$ vi � w � N ct O F-w F-� � N x m w � �• � � � m � i . n u o =�n a � � � �. � R z�� 0 a n o � _ N A � A x O A � � � r� i � ` �� n -. .q � r ' i .... �:::�� .. � �,.� � u. x ��Ofi � ., .<, �� -� 1`+a Peg 8,'r'{ C,�e�� dur.m.ey ,• � , . � . . . ' w `y ^ � — � � — � �7 A— !__W.� �. cITY OF SATNT PaUL �N,r ��,s�� ; .NormCofrman,Maya� OODCrryHali . Teiepnoa6 !SWestAeflohgBhd Farsimile; 6727A8-SGJ9% S¢int Pavl. ,41m�soM SSiD2 ; i j ' i ' � FAX TRANSMISSION i DATE: April 2, 9988 TO: Judge Babara Neilson clo Lauise Cooper Office otAdministrative Hearings NUMBER OF PACyES (including cover p2ge): 3 FROM: Peter Pangpom Paralegal St. Paui Gity Attorney's Office 4D0 City Hail � � FAX No.: 349�2665 � � � � , FAX No.: 298-5619 �, If you do not receive all pages ot7his fransmisaion, please contacT: Peter Pangbom Telsphone No. 285-8776 � i i i0'd S99Z6bz6 O1 i i I i i i t � � � 3�I��0 SJ,�NJOl1C .11IJ WO?J� zz�6e 8661—Z2—.lCW vrrtt,� vr tnc t,tl i H.� i vru��z i Peg 8nk, Qry Aeomey n ! f �� 7�.�J ' CTTY OF SAINT PAUL �NOIm (�OtEnlah, Mayor May 2l, 1998 Ctvf! DIvls:on 400 Qry Hall l5 wesf KeUoggBf�d. 6atrt7 Poul, �nnesom 55101 . 7 fephone: 672166-8%!�1 Facsimfte: 612 29F-5619� VIA FAX AND I1.S. MAIY. Judge Bazbara Iveilson c/o Louise Cooper Office ofAdministrative I-Iearings 100 Washington Square, Suite 1700 Minneapolis, Minnesota 55401-2138 12E: Licenses held by Sill D. Rasmuson d/b/a R& R Books for the premises lo�ated a4 674 Univer5ity Ave. W. in 5aint P2u1 pur File Number G98-0156 Deaz Judge Neilson: T7te purpose of this letter is to request a subpoena pursuant to Minnesota Rules, part 140p.7000 relating ta the above-mentioned contested case hezring that is scheduled to be heat'd before you on Tuesday, June 9, 1998. T1us request is made of behalf of Ms. Vzrgznia Palmer; the attomey assi�ned to this matter. The City of St. Paul licensing division tvi11 be calling this �vitness to tesfify reguding the incident which serves as a basi5 for the action against the licenses of 7i11 D. Rasmuson d/b/a R& R Baoks. � In ordez to ensure this individua] will be in attendazlce to testify, the City df St. Paul requests from the State Off'ice of Adzziinistrative Hearings a subpoena for the followzng individual: , 1. Sergeant Riekard W achal Saint Pau1 Police r7epartmet�t 100 EaSt �1` Street Saint Paui, iVIinnesota 55101 ze'd S99Z65E6 Ol i Page 1 � l I , i 3JI��0 S.I�Nb�11C J,1IJ W02i� £Z:60 866ti-ZZ-1,tiW ; � 9� �� ; � The hearing is scneduled to start at 9:30 a.rn. on Tuesday, June 9, 1948, in Roos 42, St. Paul City Hall, 15 West Keliogg Boulev2rd, St. Paul, vIN 55102. 1 i Ii you need additional infomaation or l�ave any questions regarding this request, pt�ase do not hesitate to call me at 266-8'776. "I'hank you for your consideration in this matter_ ' Sincerely Peter P. Pangborn Paraiegal , I � � � � Pa�e 2 F0'd S99Z67�6 Ol 3JI��0 SJ,3Nb011b'.11I� WOa� � i i. � �, �Z:60 866L-1Z-.ltiW MAY.-21'98(THU) 10�25 TRANSACTION REPORT Reception Transaction(s) completed OFFICE OF ADM[N.HEARING TEL:6123492663 NO. TX DATE/TIME DESTINATION DURATION PGS. REStiLT MODE 859 MAY.21 30:23 612 296 5619 �°O1'13' 003 OK N ECM P. 001 � SEP 26 199� Green Sheet # ORIG��AL puAt{suFn Council File # Ordinance # gfJ — �� Presented By ORDINANCE OF SAINT P L, MINNESOTA -� S( q ? Z- 30 Referred To Committee: Date An ordinance amending Chapter 60 of the Saint Paul Legislative Code pertainiug to zoning for the City of Saint Paul and the zoning maps thereo£ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 WFIEREAS, Pursuant to Minnesota Statutes §462357 and §64.400 of the Legislative Code, CHILDREN'S HEALTH CARE duly petitioned to rezone 233 GRAND AVENUE being legally described as Part of Block 68 SELY of Hwy & WLY of a line desc as com at SE cor of Metcalf & Wilder's Subdivision th W along N L of Grand Avenue for 138.5 ft to pt of beg; th N 0° 11'2" W for 206.8 ft th N 31 °29'2" W to Hwy & there term; Dayton & Irvine's Addition AND Vac St accruing & part of Blk 68 Dayton & Irvine's Add. SELY of Hwy & ELY of a line desc as com at SE cor of Metcalf & Wilder's Subdivision th W along NW Grand Avenue for 138.5 ft to beg th N 0° 11'2" W for 206.81 ft th N 31 °29'2" W to Hwy & there term & also all of Metcalf & Wilder's Subdivision from B-3 to B-5 to a11ow the entire hospital campus to be in the same zoning district, the petition having been certified by the Planning Division on May 13, 1998 as having been consented to by at least sixty-seven percent of the owners of the area to be rezoned, and further having been consented to by at least two-thirds of the owners of the property situated within 100 feet of the total contiguous property within one year preceding the date of the petition; and WI�EREA5, the Zoning Committee of the Planning Commission held a public heazing on June 18, 1998 for the purpose of considering the rezoning petition, and pursuant to § 107.03 of the Administrative Code, submitted its recommendation to the Planning Comxnission that the petition be granted; and WHEREAS, the Planning Commission considered the rezoning petition at its meeting heid on June 26, 1998, and recommended that the City Council approve the petition; and WFIEREAS, notice of public hearing before the City Council on said rezoning petition was duly published in the official newspaper of the City on June 6, 1998, and notices were duly mailed to each owner of affected property sihzated wholly or partly within 350 feet of the properiy sought to be rezoned; and WHEREAS, a public hearing before the City Councii having been conducted on 7uly 22, 1998, at which all interested parties were given an opportunity to be heard, the Council having considered all the facts and recommendations concerning the petition; now, therefore THE COUNCIL OF THE CITY OF SA1NT PALTL DOES ORDAIN: Section 1. 36 That the zoning map of the City of Saint Paul, Sheet Number 20 as incorporated by reference in §60301 of 37 the Saint Paul Legislative Code, as amended, is hereby fiuther amended as follows: 38 39 40 41 42 43 44 45 46 y'�' - �- 63 That the property at 233 GRAND AVENLJE, being more particularly described as: Part of Block 68 SELY of Hwy & WLY of a line desc as com at SE cor of Metcalf & Wilder's Subdivision th W along N L of Grand Avenue for 138.5 ft to pt of beg; th N 0° 11'2" W for 206.8 ft th N 31 °29'2" W to Hwy & there term; Dayton & Irvine's Addition AND Vac St accruing & part of Blk 68 Dayton & Irvine's Add. SELY of Hwy & ELY of a line desc as com at SE cor of Metcalf & Wilder's Subdivision th W along NW Grand Avenue for 138.5 ft to beg th N 0° 11'2" W for 206.81 ft th N 31 °29'2" W to Hwy & there term & also a11 of Metcalf & Wilder's Subdivision 47 48 be and is hereby rezoned from B-3 to B-5. 49 50 51 Section 2. 52 This ordinance sha11 take effect and be in force thirry (3�) days from and after its passage, approval and 53 publication. oRiG��at Requested by Departme f: Plannin & omic Develo ment By: Adoption Certified by Council Secretary By: � � 9" � � , Approved by Mayor: D te By: Form Approv By: Approved by By' Adop*_e3 ?�y Cour.c:l: Date� � i�r� \ �N° 51972 '� /.16� 21 � UEWJRMET7� (CqUNCiI � OATE INITIATEO , v / v �� p�D Se�+.�%�cs.t" "1'�i�-+ j 2��9� GREEN SHEET CONTACT PERSON B PH0�1E � O DEPARTMENT D�RELTO �NITIA�ATE � qTV COUNQL INITIAV�ATE ��a �� Z� �JS ( Z ASSiG1G � CITV ATiORNEY �j' Q C1TY CLER% NUNBERFOH ThUST BE ON CAUNCIL AGENDA 8Y (DAT q�� BUDGET DIPECTOR O FIN. 8 MGi SEAVICES DIR. RS SOOYI QS O� �/ `i� OFOER � MAYOFl (OF ASSI$ O TOTAL # OF SIGNATURE PAGES � (CIIP ALL LOCATIONS FOR SI TURE) ��i4c(a�t a,r� a-dl�e fr� �•�ir�e rows�i� ��;� .�� __, oF' CLrifct�e�-i�' �f�7� Q?�' -fa ,^e,�one �r� �or�,#tr�.�t z33 �c�l �� UF 8-3 {� B s ('Nu6k�. �.�„ �,.�� .s�a Za, r��s� RECOMMENDATIONS: ADP�o�e (A) m Rsject (R) pERSONAL SERVICE CONTRACTS MUST ANSWER THE FOILOWING QUESTIONS: _ PtANNING CAMMISSION .__ CIVI� SERVIqE CAMMISSION �- Has this persoNfirm ever worketl under a contraM for this department? _. CIB CAMM[TTEE _ YES NO ^ � A �� 2. Has Mis personttirm ever been a ciry employee? — VES NO — aSTq�T �R� — 3. Does this person/firm ossess a skill not nottnail p y possessetl by a�y current ciry employee'+ SUPP6qTSWNICNCOUNCfLOB.IECTIVE+ YES NO Explal� all yec answera o� sepprate aheet e�E pttaeh to green sheet INRIATING PROBIEM, ISSUE. OPPORTUNITV (Who. What. When. Where. Why) �i�aG'�e [srt.u.ce� l,�ra va.Q a� .t �oe.f-+`fien�C�I1�DR�'N S�C.7 C� �{a �^e�rre �.o�+�fi a-t 233 6�-A�ND �It/ elE ��, B-.3 -b r3 :� � a.�.Y ..� P.H�tire Grosp�fa.Q c�'•y�us �a l�e r� tP�e. �� oCc' , ADVANTA('iE5 IF APPROVED: � �' �V �u� 3 e lsse �tr��o��s o��sc� DISADVANTAGES IFAPPflOVEtr - y r �,„eat � ��SP,'�ff ��Z199� � DISADVANTAGES IF NOTAPPROVED' -'��il��l � . �c�':9e3 � �� TOTAL AMOUNT OF TRANSACTION $ COSi/REVENUE BUDGETED (CIHCLE ONE) YES NO FUNDING SOURCE ACTIVITY NUMBER FINANCl0.L INFOR6nATfON� (E%PIAW� OFFICE OF THE CITY ATTORNEY �/ Clayton M. Robinson, lr., City Aflorney 98 ` ��D 3 3�. CITY OF SA1NT PAUL A'orm Colenrun, !Ila��or Civi[Division 400 Ciry HaU IS Werf Ke7logg BPod Saint Pau� Minnesota SSIO2 Telephone: 651 266-8710 Facsimile: 65719&5619 Auwst 12, 1998 \OTICE OF COUN Mr. David Gronbeck Attorney at Law Gronbeck Law Office Suite 1710, One Financial Plaza Minneapolis, Minnesota »402 �1 � �� I ju:i ';.�_._�_ : .. �. _�. f�� $� 1G(gg� Re: Licenses held by 3ill D. Rasmuson dlb/a R& R Books for the premises located at 674 University Ave. W. in St. Paul Our File Number: G98-0156 Deaz Mr. Gronbeck: Please take notice that a hearing on the report of the Administrafive Law Judge conceming the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, August 26,1998, in the City Council Chambers, Third Floor, Saint Pau1 City Hal1 and Ramsey County Courthouse. You have the opportuniry to file exceprions to the report with the City Clerk at any time during normal business hours. You may also present oral or written argument to the council at the Hearing. No new evidence �� ill be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Administrative Law Judge and on the arguments made and exceptions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its }udgement and discretion. Sincerely, � �� Virginia . Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Community Organizer District 8, Su�umit-University Planning Council, 627 Selby Ave., St_ Pau1, MN 55104 9�-7�� 11-2111-11700-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATNE HEARINGS FOR THE CIN OF ST. PAUL In the Matter of All Licenses Heid by Jill Rasmuson, d/b/a R& R Books for the Premises Located at 674 University Avenue West in Saint Paui License 6D No. 32901 FINDINGS OF FACT. CONCLUSIONS AND RECOMMENDATION The above-entitled matter came on for hearing before Administrative Law Judge Barbara L. Neilson on June 9, 1998, at 9:30 a.m. in Room 42 of the Saint Paul City Haii. Vrginia D. Palmer, Assistant Ciry Attomey, 400 City Nall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102, appeared on behalf of the Office of License, Inspections and Environmental Protection of the City of Saint Paul ("the Cit�'). David Gronbeck, Attorney at Law, Gronbeck Law Office, Suite 1710, �ne Financial Plaza, Minneapolis, Minnesota 55402, appeared on behalf of the Licensee, Jifl Rasmuson, d/b/a R& R Books. The record in this matter closed at the conclusion of the hearing on June 9, 1998. This Report is a recommendation, not a final decision. The Saint Paul City Council will make the final decision after a review of the record. The City Council may adopt, reject or modify the Findings of Fact, Conclusions and Recommendations contained herein. Pursuant to Saint Paul Legislative Code section 310.05(c-1), the City Council shall provide an opportunity to present oral or written argument alleging error in this Report and to present argument related to any adverse action recommended in this Report. The parties should contact the City Clerk to ascertain the procedure for filing such argumenf or appearing before the Council. STATEMENT OF ISSUES The issue presented in this matter is whether or not an employee of R& R Books sold sexually expficit material to a minor in violation of Minn. Stat. § 617.293, subds. 1(aj and (b), and Saint Paul Legislative Code § 276.02(a) and, if so, whether adverse action should be taken against fhe licenses held by Jill Rasmuson d/b/a R& R Books. Based on all of the proceedings herein, the Administrative Law .ludge makes the following: �8 ��3 F1NDiNGS OF FACT 1. The Respondent, Jill Rasmuson, owns and operates R& R Books, an adult bookstore located at 674 University Avenue West, Saint Paul. Ms. Rasmuson's husband, Richard S. Rasmuson, Jr., assists wfth the day-to-day operations of the bookstore. 2. Ms. Rasmuson holds mechanical amusement device machine and mechanical amusement device operator licenses from fhe City of Saint Paui for use at R& R Books. These licenses will expire on Ocfober 39, 1998. Ex. 1. 3. There is a sign on the front door of R& R Books indicating that persons must be 21 or older and have an ID in order to enter the store. Even though persons who are 18 can legally be in the store, Mr. Rasmuson spec�ed 21 on the sign because he did not �vant any kids to have contact with the materials. Mr. Rasmuson instructs clerks in the store ta check a customer's ID if the customer looks younger than 21 years of age. If the customer looks over 21, the clerk is given discretion whether or not to check the individuai's ID. . 4. During the spring of 1998, the City's Office of License, Inspections and Environmental Protection was interested in the issue of the location of "adult uses" in the City. On approximately March 23, 1998, the Office sent a letter to adult bookstores indicating that relocation of their premises may be necessary under an ordinance that had been recently adopted. 5. In April, 1998, the City received a complaint regarding an adult bookstore other than R& R Books selling materials to a minor. As part of its investigation of the complaint, the City decided to conduct a compliance check to determine if employees would check for identification of a minor or sell a minor an item of a sexually explicit nature. R& R Books was selected at random for inciusion in the compliance check. There is no evidence that the City ever received any previous complaints alleging that R& R Books had sold sexualiy explicit material to a minor. 6. Compliance checks are also conducted by the City in stores selling fiquor and tobacco products. The City has only infrequentiy conducted compliance checks with respect to adult businesses. 7. The City conducted complia�ce checks with respect to R& R Books and four other adult businesses on April 3, 1998. Prior to conducting the compliance checks, Kristina Schweinler, a senior investigator with the City's License Inspection and Environmental Protection Office, located a minar to serve as a decoy. She obtained the written permission of the boy's parent to participate in the compiiance checks. The boy's mother verified to Ms. Schweinler that the boy was bom on August 3, 1982, and thus was 15 years old. Ex. 5. ►n addition, Ms. Schweinfer personally knew the boy and was familiar with his age. 8. Ms. Schweinier and Sgt. Richard Wachai and Officer Felicia Reilly of the St. Paul Police Department met with the boy in police headquarters on April 3, 1998, before 2 y�-7�3 the compiiance checks were conducied. A general search was conducted of the boy to confirm that he was not in possession of any sexually explicit material, extra cash, or a false ID. They fhen gave the boy money fo purchase the materials and took him to the locations in question. 9. At approximately 4:00 p.m. on Aprii 3, 1998, the boy went into R& R Books. Sgt. Wachal followed him in shortly thereafter. The boy did not use any of the machines in R& R Books that are licensed by the City. He selected a movie called "Our Bang ... An Orgy in Every Box° and a two-pack of magazines sealed in plastic entitled "Adam and RaideT and took them to the clerk behind the counter. The cler{c without Mesitation rang up the purchase without asking the boy for an lD, piaced the items in a bag, took the maney from the boy, and gave the items to him. The boy then left the store and went to the car where Offlcer Reilly and Ms. Schweinler were wa+fing. Ex. 2. 10. Sgt. Wachal, O�cer Reifly, and Ms. Schweinler then went into R& R Books to confront the cashier. The boy remai�ed in the car. Sgt. Wachal displayed his badge and ident�ed himself as a Saint Paul Police Department sergeant in the Vice Unit. The ' cashier, Calvin Dirl, said, "{Ys my fau{t" and admitted that he did not check the boy's ID. He said that he had been working at R& R Baoks for ten years. Ex. 2. He aiso said that he was sick and needed to go to the doctor and was going to undergo a lung reduction. Mr. Dirl beiieved that the boy looked at least 25 years old. 11. The magazines and the video purchased by the boy contained sexually explicit materiat. The magazines purchased by the boy contained numerous photographs of nude men and women in intercourse positions, but did not show actual penetration. The ten- minute video showed nude men and women engaging in sexual intercourse, oral sex, mutual masturbation, sexual intercourse with multiple partners, and other sexual conduct. 12. By letter dated April 17, 1998, the Respondent was notified that the Director of the City's Office of License, Inspections, and Environmentai Protection was recommending that adverse action be taken against the licenses held by Ms. Rasmuson d/b/a R& R Books because sexually ekplicit material had been sold to a minor on or about April 6[sic], 1998. 7he fetter informed th2 Respondent of ifs right to request an evidentiary hearing before an Administrative Law Judge. Ex. 3. 13. The Respondent submitted a timely request for hearing, and this proceeding was commenced. Ex. 4. 14. The Director of the City's Office of License, Inspections, and Environmental Protection has recommended a fine of $500 for R& R Books' alleged violation of state law and city ordinance. The amount of the fine is based upon a matrix set forth in Section 40926 of the Saint Paul Legislative Gode which establishes presumptive penalties for liquor violations based upon the square footage of the business invoNed in the violation. The City has not established a specific matrix applicab{e to violations involving adult bookstores. 3 y�-�6� 15. Criminal charges are pending against the R 8� R Books cferic who sold the materials to the boy. As of the date of the hearing, there had been no disposition of fhe charges. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the fo(lowing_ CONCLUSIONS 1. The Saint Paul Cify Council and the Administrafive Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.55 and 340A.415 and Saint Paul Legislative Code §§ 310.05 and 310.06. 2. The Notice of Hearing issued by the City was proper and all applicable substantive and procedural requirements have been fulfilled. 3. The City bears the burden in this matter of proving by a preponderance of the evidence that adverse action is warranted with respect to the mechanicai amusement device and operato�'s {icenses at issue. 4. Chapter 310 of the Saint Paul Legislative Code contains general provisions relating to licenses issued by the City. Section 31�.�6(b)(6) provides that adverse action may be taken against any or all licenses or permits held by a licensee where the licensee (or a person whose conduct may by law be imputed to the licensee) "has violated, or pertormed any act which is a viofation of, any of the provisions of these chapters or of any statute, ordinance or regulation reasonably related to the ficensed activity, regardless of whether criminal charges have or have not been brought in connection therewith.° Section 310.17 provides that "[ajny act or conduct by any clerk, employee, manager or agent of a licensee ... which act or conduct takes piace .._ on the licensed premises .., and which act or conduct violates any state or federal statutes or regulations, or any city ordinance, shail be considered to be and treated as the act or conduct of the licensee for the purpose of adverse action against ali or any of the licenses held by such licensee." "Adverse action" is defined in sections 310.01 and 310.05(I) of the Saint Paul Legislatn;e Code to include the imposition of a fine. 5. Minn. Stat. § 617.293, subd. 1(1996), provides that it is "unlawful for any person knowingiy to sell or loan for monetary consideration to a minor: (a) [a]ny ... motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors, or (b) (a]ny ... magazine ... which contains any matter enumerafed in clause (a) ...." Section 276.02 of the Saint Paul Legislative Code corrtains the same prohibition as Minn. Stat. § 617.293. "Nudity" is defined in both the statute and the Saint Paul Legislative Code to mean "the showing of the human male or female genitals° with less than a fully opaque covering. Minn. Stat. § 617.292, subd. 3; Saint Paul Legislative Code § 276.01. "Sexual conduct" is defined in both to include "acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's unclothed a 9a-�b3 genitals ...°' The phrase "harmfui to minors" is defined in Minn. Stat. § 617.292, subd. 7, as foilows: `Harmful to minors" means that quality of any description or represenfation, in whafever form, of nudity, sexual conduct, sexuai excitement, or sadomasochistic abuse, when it (1) predominantly appeals to the prurient, shamefu{ or morbid interest of minors, and (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (3) is utterly without redeeming social importance for minors. Section 276.01 of the Saint n Paul Legislative Code includes substantially the same definition of "harmful to minors. Finaily, the term "knowingly" is defined in the statute to mean "having ge�eral knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry or both ...(1) the character and confent of any material which is reasonably susceptible of examination by the defendant, and (2) the age of the minor, provided however that an honest mistake shall constitute an excuse from liability hereunder if the made a reasonabie bona fide attempt to ascertain the true age of such minor. . 6. In addition, section 276.03 of the Saint Paul Legislative Code provides that a person who engaged in conduct prohibited by section 276.02 "is presumed to do so with knowledge of the character and content of the material sold ..., or the motion picture ... fo be exhibited" and that it is an affirmative defense in a prosecution for disseminating harmful materials to minors that "[t]he defendant had reasonable cause to believe that the minor involved had reached his or her eighteenth birthday" and the minor "exhibited to the defendant a draft card, driver's license, birth certificate or other o�cial or apparently official document purporting to establish that such minor had reached his or her eighteenth birthday,"� 7. The City has established by a preponderance of the evidence that a clerk at R& R Books sold magazines and a video to an individual under eighteen years of age ' Minn. Stat § 617.292, subd. 4; Saint Paul Legislative Code § 276.01. z The onty d'rfferences between the statutory and Code provisions is that the Code refers in item (1) to a depiction which, °[t)aken as a whole, predominantiy appeats to the prurient interest in sex of minors' and in item (3) io a depiction which, "[tjaken as a whole, lacks serious literery, artistic, potitical or scientific vafue for a legitimate minority of older, normal minors." 3 Minn. Stat § 617.2g2, subd. 8. The Saint Paul Legislative Code does not define "knowingly.^ " There is no similar provision in Minn. Stat §§ 61 7.291-617.296. 5 g� 7b � without requesting proof that the individual had reached his eighteenth birthday. R& R Books is a"totally adulY' bookstore, and there is no claim by R& R Books that fhe clerk who soid the materials to the minor lacked knowledge of the character and content of the magazines or video. The magazines and video purchased by the minor at R& R Books contained photographs and motion pictures depicting nudiiy and sexual conduct within the meaning of Minn. Stat § 617.293 and section 276.02 of the Saint Paul Legislative Code. Based upon the testimony of the St. Paul police sergeant who reviewed the materials conceming their content, it is evident that the materials predominantly appealed to prurient interests, were patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, lacked serious literary, artistic, political or scientific value, and lacked redeeming social importance for minors. The Licensee did not make any argument to the contrary. Therefore, the City has shown by a preponderance of the evidence that the materials w�re "harmful to minors" within the meaning of Minn. Stat. § 617.293 and section 276.02 of the Saint Paul Legislative Code. 8. The foregoing Concfusions are made for the reasons set forth in the attached Memorandum, which is hereby incorporated in these Conclusions by reference. Based upon the foregoing Conclusions, the Administrative Law Judge makes the foltowing: RECOMMENDATION IT IS HEREBY RESPECTFULLY RECOMMENDED: that the Saint Paul City Council take adverse action against the licenses held by Jill Rasmuson d/b/a R& R Books. Dated this �� day of July, 1998 �,,..�..,._.- �. � i �� BARBARA L. NEILSON Administrative Law Judge NOTICE The City is respectFully requested to provide a copy of its final decision to the Administrative Law Judge by first class mail. Reported: Tape recorded (not transcribed). MEMORAIVDUM Based upon the record in this case, it is evident that the clerk at R& R Books sold sexualfy exp{icit material to a 15-year-o4d decoy on April 3, 1998, without checking the boy's identification card. The City's witnesses indicated that the decoy had been promised confidentiality and, for that reason, the Ciry did not cal! the boy as a witness or introduce a 0 �- ��3 picture of him info evidence. This failure is not fafal to the City's case. Sufficient proof of the decoy's age was provided by the City through the festimony of Sgt. Wachal and Ms. Schweinler conceming the boy's date of birth as refayed by his mother, the written permission slip signed by the mother providing the date of birth, and Ms. Schweinler's personal knowledge of the boy and his age. Although the statute and ordinance at issue proscribe "knowing° sales fo minors and the clerk testified that he believed that the boy looked at least 25 years oid, the statute and ordinance only excuse honest mistakes as to a person's age if the cusfomets ID was checked or some other reasonable attempt was made to determine the true age of the customer. That did not happen in the present case. The clerk had sufficient general knowledge of the decoy's age, based upon the boy's appearance. The clerk undoubtedly also had a general knowledge of the character and content of the material he was selling—he had worked at R& R Books, an aduit bookstore, for ten years. The City thus has shown by a preponderance of the evidence that the statute and ordinance were violated. Secause there is no alfegation that the minor operafed any of the mechanical amusement device machines for which the Licensee is licensed, the Licensee contends that it is inappropriate under the circumstances for the City to take adverse action against these licenses. This argument is not persuasive. Section 310.06(b)(6) of the Saint Paul Legislative Code expressly authorizes adverse action against "any or all licenses" held where the licensee (or a person whose conduct may by faw be imputed to the licensee) has "violated, or performed any act which is a violation of, any of the provisions of these chapters ...." The actions of the clerk are considered to be the actions of the Licensee pursuant to Section 310.17 of the Code. Accordingly, the clerk's viofation of Section 276.02 of the Saint Paul Legislafive Code prohibiting sales of sexual4y expficit materials to minors provides a sufficient basis for the imposition of discipline against the mechanical amusement device machine and mechanical amusement device operator licenses held by the Licensee. The Licensee further contends that the City improperly entrapped the clerk into committing the violation. She emphasizes that R& R Books does not have any history of complaints conceming sales to mincrs and thus argues fhat the Ciry cannot show that R& R Books was predisposed to sell sexually exp�icit materials to minors. As noted by the Court of Appeals in a recent case, "it is not clear whether the entrapment defense is available in administrafive proceedings." In any case, for the entrapment defense to be successfully asserted, the defendant must first show that the govemment induced the commission of the crime by doing something more than mere solicitation. If inducement is shown, the public aufhority must show beyond a reasonabie doubt that the defendant was predisposed to commit the crime.s 5 In 2 Pedley, 1993 WL 79588 (Minn. App. 1993) (unpublished). s Jacobson v. Unifed States, 112 S. Ct 1535 (1992); State v. Abraham, 335 N.W.2d 745, 747 (Minn. 1983); State v. Ford, 276 N.W.2d 178, 182 (Minn. 1979). 7 98-�63 The initial inducement element is established only by showing "something in the nature of persuasion, badgering, or pressure by the state."' The United Sfates Supreme Court has noted that "Ehe fact that officers or employees of the govemment merely afforded opportunfies or facii'�ies for the commission of the offense does not defeat the prosecu6on. Artifice and strategem may be employed to catch those engaged in criminal enterprises.°a The Licensee in the present case has not established that her clerk was induced by the City's decoy to commit the viofation. As in In re Pedlev, the decoy here "did no more than any young persan might do" in an attempt to obtain sexually explicit material, but "merely provided an opportun+ty for relators to make illegat sales." There is no evidence that the decoy in any way attempted to persuade, badger, or pressure the clerk into se{{ing the materials to him; in fact, it appeacs that he simply presented the materials at the counter for purchase and had no significant interchange with the clerk. Because the Licensee has not shown the requisite inducement, it is not necessary to reach the further issue of whether the City has shown beyond a reasonable doubt that the Licensee was predisposed to commit the crime. The Administrative Law Judge thus respectFully recommends that adverse action be taken against the licenses held by Jill Rasmuson d/b/a R& R Books. The fact that the Licensee has no history of violations should be faken into consideration in arriving at the penalty to be imposed, as should the fact that the clerk sincerely believed that the decoy was of legal age. The City has urged that a$500 fine be imposed, using (by analogy) the matrix set forth in Section 409.26 of the Saint Pauf Legislative Code applicable to liquor violations. The Judge urges the City Councit to consider whether a lesser fine is appropriate under the circumstances of this case. C;� ' Stafe v. Olkon, 299 N.W2d 89, 107 (Minn. 1980j, cert deoied, 449 U.S. 1132 (1981); see also State v. Abraham, 335 N.W.2d 745, 747 (Minn. 7983); and ln re Pedley, supra. e SorreOs v. United States, 287 U.S. 435 (1932). 9 In re Pedley, 19931NL 79588 (Minn. ApP. 1993). 10 Id. in addifion, there is no convincing evidence that the compliance checks were prried out in bad faith or were motivated by changes in City ordinances that witl possibly affect the tocation of `aduit uses° in the City. [? July 7, 1998 Fred Owusu, City Clerk 170 City Hali 15 West Kellogg Boulevard St. Paul, MN 551�2 RE: In the Matter of Afl Licenses Held by Jilf Rasmuson, d/b/a R& R Books for the Premises Located at 674 University Avenue West in Saint Paul; OAH Docket No. 11-2111-11700-3 Dear Mr. Owusu: Enclosed herewith and served upon you by mail is the Administrative Law Judge's Findings of Fact, Conclusions and Recommendation in the above- entitled matter. Also enclosed is the official record, with the exception of the tape recording of the hearing. If you wou{d like a copy of those tapes, please contact our o�ce in writing or telephone 341-7615. Our file in this matter is now being closed. � � • STATE OF MINNESOTA OFFiCE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite'1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 �� Fjy c, R� 9�-�� 3 c� � � . �`1��. � , L. NEILSON � tive Law Judge �: 612l341-7604 i'��'+,� BLN:Ir `�� Enclosures cc: Virginia C David Gn Providing Impartial Hearings for Government and Ci6zens An Equaf OppoAunity Employer Administrative Law Section & Administrative Services (612) 341-7600 e TDD No. (612) 341-7346 � Fax No. (612) 349-2665 ys- ��3 STATE OF MINNESOTA) ) ss COUNTY OF HENNEPIN) AFFIDAVIT OF SERVICE BY U.S. MAlL LaVon Regan, being first duly sworn, hereby deposes and says that on the 7th day of J�, 1998, at the City of Minneapolis, county and state aforementioned, she served the attached Findings of Fact. Conclusions and Recommendation of the Administrative Law Judae: OAH Docket No. 11-2111- 11700-3, by depositing in the United States mail at said City of Minneapolis, a true and correct copy thereof, properly enveloped, with first ciass postage prepaid and addressed to the individuals named herein. Fred Owusu, City Clerk 170 City Hall 15 West Kellogg Boulevard St. Paul, MN 55102 David Gronbeck Attorney at Law Gronbeck Law Office Suite 1710, One Financial Plaza Minneapolis, MN 554�2 Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Kellogg Boulevard St. Paul, MN 55102 l_E.L� 1� � � LaVon Regan Subscribed and sworn to before me this 7th day of July, 1998. �� c , e�-�� Notary Public � � � OUISE C. COOPER � , NQTARYPUBLIC % My Comm. E�i�aJen.31.2000 9�- ��3 11-2111-11700-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of All Licenses Held by Jill Rasmuson, d/b/a R& R Books for the Premises Located at 674 UniversityAvenue West in Saint Paul License ID No. 32901 FINDINGS OF FACT. CONCLUSIONS AND RECOMMENDATION The above-entitled matter came on for hearing before Administrative Law Judge Barbara L. Neilson on June 9, 1998, at 9:30 a.m. in Room 42 of the Saint Paul City Nail. Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102, appeared on behalf of the Office of License, Inspections and Environmental Protection of the City of Saint Paul ("the City"). David Gronbeck, Attorney at Law, Gronbeck Law Office, Suite 1710, One Financial Plaza, Minneapolis, Minnesota 55402, appeared on behalf of the Licensee, Jill Rasmuson, d!b/a R& R Books. The record in this matter closed at the conclusion of the hearing on June 9, 1998. This Report is a recommendation, not a final decision. The Saint Paul City Council will make the final decision after a review of the record. The City Council may adopt, reject or modify the Findings of Fact, Conclusions and Recommendations contained herein. Pursuant to Saint Paul Legislative Code section 310.05(c-1), the City Council shall provide an opportunity to present oral or written argument alleging error in this Report and to present argument related to any adverse action recommended in this Report. The parties should contact the City Clerk to ascertain the procedure for filing such argument or appearing before the Council. STATEMENT OF ISSUES The issue presented in this matter is whether or not an employee of R& R Books sold sexualfy explicit material to a minor in violation of Minn. Stat. § 617.293, subds. 1(a) and (b), and Saint Paul Legislative Code § 276.02(a) and, if so, whether adverse action should be taken against the licenses held by Jill Rasmuson d!b!a R& R Books. Based on all of the proceedings herein, the Administrative Law Judge makes the following: 9� ��3 FINDINGS OF FACT 1. The Respondent, Jifl Rasmuson, owns and operates R& R Books, an adult bookstore located at 674 Univers'rty Avenue West, Saint Paul. Ms. Rasmuson's husband, Richard S. Rasmuson, Jr., assists with the day-to-day operations of the bookstore. 2. Ms. Rasmuson holds mechanical amusement device machine and mechanical amusement device operator licenses from the City of Saint Paul for use at R& R Books. These licenses will expire on October 31, 1998. Ex. 1. 3. There is a sign o� the front door of R& R Books indicating that persons must be 21 or older and have an ID in order to enter the store. Even though persons who are 18 can legally be in the store, Mr. Rasmuson specified 21 on the sign because he did not want any kids to have contact with the materials. Mr. Rasmuson instructs clerks in the store to check a customer's ID if the customer looks younger than 21 years of age. If the customer looks over 21, the clerk is given discretion whether or not to check the individual's ID. 4. During the spring of 1998, the City's Office of License, Inspections and Environmental Protection was interested in the issue of the location of "adult uses" in the City. On approximately March 23, 1998, the Office sent a letter to adult bookstores indicating that relocation of their premises may be necessary under an ordinance that had been recently adopted. 5. In April, 1998, the City received a complaint regarding an adult bookstore other than R& R Books selling materiais to a minor. As part of its investigation of the complaint, the City decided to conduct a compliance check to determine if employees would check for identification of a minor or se11 a minor an item of a sexually explicit nature. R& R Books was sefected at random for inclusion in the compfiance check. There is no evidence that the City ever received any previous complaints alieging that R& R Books had sold sexually explicit material to a minor. 6. Compliance checks are also conducted by the City in stores selling liquor and tobacco products. The City has only infrequently conducted compliance checks with respect to adult businesses. 7. The City conducted compliance checks with respect to R& R Books and four other adult businesses on April 3, 1998. Prior to conducting the compliance checks, Kristina Schweinler, a senior investigator with the City's License Inspection and Environmental Protection Office, located a minor to serve as a decoy. She obtained the written permission of the boy's parent to participate in the compliance checks. The boy's mother verified to Ms. Schweinler that the boy was born on August 3, 1982, and thus was 15 years old. Ex. 5. In addition, Ms. Schweinler personally knew the boy and was familiar with his age. 8. Ms. Schweinler and Sgt. Richard Wachal and Officer Felicia Reilly of the St. Paul Police Department met with the boy in police headquarters on Aprif 3, 1998, befiore �: 9� �� 3 the compliance checks were conducted. A general search was conducted of the boy to confirm that he was not in possession of any sexually explicit material, extra cash, or a false ID. They then gave the boy money to purchase the materials and took him to the locations in question. 9. At approximately 4:00 p.m. on April 3, 1998, the boy went into R& R Books. Sgt. Wachal followed him in shortly thereafter. The boy did not use any of the machines in R& R Books that are licensed by the City. He selected a movie called "Our Bang ... An Orgy in Every Bo�' and a finro-pack of magazines sealed in piastic entitled "Adam and Raider' and took them to the clerVc behind the counter. The c{erk without hesitation rang up the purchase without asking the boy for an ID, placed the items in a bag, took the money from the boy, and gave the items to him. The boy then left the store and went to the car where Officer Reilly and Ms. Schweinler were waiting. Ex. 2. 10. Sgt. Wachal, Officer Reilly, and Ms. Schweinler then went into R& R Books to confront the cashier. The boy remained in the car. Sgt. Wachal displayed his badge and identified himself as a Saint Paul Police Department sergeant in the Vice Unit. The cashier, Calvin Diri, said, "It's my fault" and admitted that he did not check the boy's ID. He said that he had been working at R& R Books for ten years. Ex. 2. He also said that he was sick and needed to go to the doctor and was going to undergo a lung reduction. Mr. Dirl believed that the boy looked at least 25 years old. 11. The magazines and the video purchased by the boy contained sexually explicit material. The magazines purchased by the boy contained numerous photographs of nude men and women in intercourse positions, but did not show actual penetration. The ten- minute video showed nude men and women engaging in sexual intercourse, oral sex, mutual masturbation, sexual intercourse with multiple partners, and other sexual conduct. 12. By fetter dated April 17, 1998, the Respondent was notified that the Director of the City's Offce of License, Inspections, and Environmental Protection was recommending that adverse action be taken against the licenses held by Ms. Rasmuson d/b!a R& R Books because sexually explicit material had been sold to a minor on or about April 6[sic], 1998. The letter informed the Respondent of its right to request an evidentiary hearing before an Administrative Law Judge. Ex. 3. 13. The Respondent submitted a timely request for hearing, and this proceeding was commenced. Ex. 4. 14. The Director of the Gity's O�ce of License, Inspections, and Environmental Protection has recommended a fine of $500 for R& R Books' alleged violation of state law and city ordinance. The amount of the fine is based upon a matrix set forth in Section 409.26 of the Saint Paul Legislative Code which establishes presumptive penalties for liquor violations based upon the square footage of the business involved in the violation. The City has not established a specific matrix applicable to violations involving adult bookstores. 3 9�-763 15. Criminal charges are pending against the R& R Books clerk who sold the materials to the boy. As of the date of the hearing, there had been no disposition of the charges. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. The Saint Paul City Council and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.55 and 340A.415 and Saint Paul Legaslative Code §§ 310.05 and 310.06. 2. The Notice of Hearing issued by the City was proper and all applicable substantive and procedural requirements have been fulfilled. 3. The City bears the burden in this matter of proving by a preponderance of the evidence that adverse action is warranted with respect to the mechanical amusement device and operator's licenses at issue. 4. Chapter 310 of the Saint Paul Legislative Code contains general provisions relating to licenses issued by the City. Section 310.06(b)(6) provides that adverse actlon may be taken against any or all licenses or permits held by a licensee where the licensee (or a person whose conduct may by law be imputed to the licensee) "has violated, or pertormed any act which is a violation of, any of the provisions of these chapters or of any statute, ordinance or regulation reasonably related to the licensed activity, regardless of whether criminal charges have or have not been brought in connection therewith." Section 310.17 provides that "[a]ny act or conduct by any clerk, employee, manager or agent of a licensee ... which act or conduct takes place ... on the licensed premises ... and which act or conduct violates any state or federal statutes or regulations, or any city ordinance, shall be considered to be and treated as the act or conduct of the licensee for the purpose of adverse action against al1 or any of the licenses held by such licensee." "Adverse action" is defined in sections 310.01 and 310.05(i) of the Saint Paul Legislative Code to inciude the imposition of a fine. 5. Minn. Stat. § 617.293, subd. 1(1996), provides thafi it is "unlawfu9 for any person knowingfy to self or loan for monetary consideration to a minor: (a) [ajny ... motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudiiy, sexual conduct, or sadomasochistic abuse and which is harmful to minors, or (b) [a]ny ... magazine ... which contains any matter enumerated in clause (a) ...." Section 276.02 of the Saint Paul Legislative Code contains the same prohibition as Minn. Stat. § 617.293. "Nudity" is defined in both the statute and the Saint Paul Legislative Code to mean "the showing of the human male or female genitals" with less than a fully opaque covering. Minn. Stat. § 617.292, subd. 3; Saint Paul Legislative Code § 276.01. "Sexuaf conducY' is defined in both to include "acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's unclothed � 9� ��3 genitals ...."' The phrase "harmful to minors" is defined in Minn. Stat. § 617.292, subd. 7, as follows: "Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it (1) predominantly appeals to the prurient, shameful or morbid interest of minors, and (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (3) is utterly without redeeming social importance for minors. Section 276.01 of the Saint Paul Legislative Code includes substantially the same definition of "harmful to minors." Finally, the term "knowingly" is defined in the statute to mean "having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry or both ...(1) the character and content of any material which is reasonably susceptible of examination by the defendant, and (2) the age of the minor, provided however that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor." 6. In addition, section 276.03 of the Saint Paul Legislative Code provides that a person who engaged in conduct prohibited by section 276.02 "is presumed to do so with knowledge of the character and content of the material sold ..., or the motion picture ... to be exhibited" and that it is an affirmaiive defense in a prosecution for disseminating harmful materials to minors that "[t]he defendant had reasonable cause to believe that the minor involved had reached his or her eighteenth birthday" and the minor "exhibited to the defendant a draft card, drivePs license, birth certificate or other official or apparently official document purporting to establish that such minor had reached his or her eighteenth birthday." 7. The City has established by a preponderance of the evidence that a clerk at R& R Books so{d magazines and a video to an individual under eighteen years of age ' Minn. Stat. § 617.292, subd. 4; Saint Paul Legislative Code § 276.01. 2 The oniy differences between the statutory and Code provisions is that the Code refers in item (1) to a depiction which, "[t]aken as a whole, predominantly appeals to the prurient interest in sex of minors" and in item (3) to a depiction which, "[t]aken as a whole, lacks serious literary, artistic, political or scientific value for a legitimate minority of older, normal minors." 3 Minn. Stat. § 617.292, subd. 8. The Saint Paul Legislative Code does not define °knowingly." ° There is no similar provision in Minn. Stat. §§ 617.291-617.296. 5 �l� without requesting proof that the individual had reached his eighteenth birthday. R& R Books is a"totally adulY' bookstore, and there is no claim by R& R Books that the clerk who sofd the materials to the minor lacked knowledge of the character and content of the magazines or video. The magazines and video purchased by the minor at R& R Books contained photographs and motion pictures depicting nudiiy and sexuai conduct within the meaning of Minn. Stat. § 617.293 and section 276.02 of the Saint Paul Legisiative Code. Based upon the testimony of the St. Pau1 police sergeant who reviewed the materials conceming their content, it is evident that the materiais predominantly appealed to prurient interests, were patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, lacked serious literary, artistic, political or scientific value, and lacked redeeming social importance for minors. The Licensee did not make any argument to the contrary. Therefore, the City has shown by a preponderance of the evidence that the materials were "harmful to minors" within the meaning of Minn. Stat. § 617.293 and section 276.02 of the Saint Paul Legislative Code. 8. The foregoing Gonclusions are made for the reasons set forth in the attached Memorandum, which is hereby incorporated in these Conclusions by reference. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RESPECTFULLY RECOMMENDED: that the Saint Paul City Council take adverse action against the licenses held by Jill Rasmuson d/b/a R& R Books. Dated this �i'h day of July, 1998 1��H>w.j.-- 1� i�er BARBARA L. NEILSON Administrative Law Judge NOTICE The City is respectfully requested to provide a copy of its final decision to the Administrative Law Judge by first class mail. Reported: Tape recorded (not transcribed). MEMORANDUM Based upon the record in this case, it is evident that the clerk at R& R Books sold sexually explicit material to a 15-year-old decoy on April 3, 1998, without checking the boy's identification card. The Ciiy's witnesses indicated that the decoy had been promised confidentiality and, for that reason, the City did not call the boy as a witness or introduce a � 9�-763 picture of him into evidence. This failure is not fatal to the City's case. Sufficient proof of the decoy's age was provided by the City through the testimony of Sgt. Wachal and Ms. Schweinler conceming the boy's date of birth as relayed by his mother, the written permission slip signed by the mother providing the date of birth, and Ms. Schweinier's personal knowledge of the boy and his age. Afthough the statute and ordinance at issue proscribe "knowing" sales to minors and the clerk testified that he believed that the boy looked at least 25 years old, the statute and ordinance only excuse honest mistakes as to a person's age if the customer's ID was checked or some other reasonable attempt was made to determine the true age of the customer. That did not happen in the present case. The clerk had sufficient general knowledge of the decoy's age, based upon the boy's appearance. The clerk undoubtedly also had a general knowledge of the character and content of the material he was selling—he had worked at R& R Books, an adult bookstore, for ten years. The City thus has shown by a preponderance of the evidence that the statute and ordinance were violated. Because there is no allegation that the minor operated any of the mechanical amusement device machines for which the Licensee is licensed, the Licensee contends that it is inappropriate under the circumstances for the City to take adverse action against these licenses. This argument is not persuasive. Section 310.06(b)(6) of the Saint Paul Legislative Code expressly authorizes adverse action against "any or all licenses" held where the licensee (or a person whose conduct may by law be imputed to the licensee) has "violated, or perFormed any act which is a violation of, any of the provisions of these chapters ...." The actions of the clerk are considered to be the actions of the Licensee pursuant to Section 310.17 of the Code. Accordingly, the clerk's violation of Section 276.02 of the Saint Paul Legislative Code prohibiting sales of sexually explicit materials to minors provides a sufficient basis for the imposition of discipline against the mechanical amusement device machine and mechanical amusement device operator licenses held by the Licensee. The Licensee further contends that the City improperly entrapped the clerk into committing the violation. She emphasizes that R& R Books does not have any history of complaints concerning sales to minors and thus argues that the City cannot show that R& R Books was predisposed to sell sexually explicit materials to minors. As noted by the Court of Appeals in a recent case, "it is not cfear whether the entrapment defense is available in administrative proceedings." In any case, for the entrapment defense to be successfully asserted, the defendant must first show that the government induced the commission of the crime by doing something more than mere solicitation. If inducement is shown, the public authority must show beyond a reasonable doubt that the defendant was predisposed to commit the crime. 5 In re Pedley, 1993 WL 79588 (Minn. App. 1993) (unpublished). 6 Jacobson v. United States, 112 S. Gt. 1535 (1992); State v. Abraham, 335 N.W.2d 745, 747 (Minn. 1983); State v. Ford, 276 N.W2d 178, 182 (Minn. 1979). 7 9�-�63 The initial inducement element is established only by showing °something in the nature of persuasion, badgering, or pressure by the state."' The United States Supreme Court has noted that "the fact that officers or employees of the govemment merely afforded opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and strategem may be employed to catch those engaged in criminal enterprises." The Licensee in the present case has not established that her clerk was induced by the City's decoy to commit the violation. As in In re Pedlev, the decoy here "did no more than any young person might do" in an attempt to obtain sexually explicit material, but "merely provided an opportunity for relators to make illegal sales." There is no evidence that the decoy in any way attempted to persuade, badger, or pressure the clerk into selling the materials to him; in fact, it appears that he simply presented the materials at the counter for purchase and had no significant interchange with the clerk. Because the Licensee has not shown the requisite inducement, it is not necessary to reach the further issue of whether the City has shown beyond a reasonable doubt that the Licensee was predisposed to commit the crime. The Administrative Law Judge thus respectfully recommends that adverse action be taken against the licenses held by Jill Rasmuson d/b/a R& R Books. The fact that the Licensee has no history of violations should be taken into consideration in arriving at the penalty to be imposed, as should the fact that the clerk sincerely believed that the decoy was of legal age. The City has urged that a$500 fine be imposed, using (by analogy) the matrix set forth in Section 409.26 of the Saint Paul Legislative Code applicable to liquor violations. The Judge urges the City Council to consider whether a lesser fine is appropriate under the circumstances of this case. B.L.N. ' State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980), cert. denied, 449 U.S. 1132 (1981); see also State v. Abraham, 335 N.W.2d 745, 747 (Minn. 1983); and In re Pedley, supra. $ Sorrells v. United States, 287 U.S. 435 (1932). 9 In re Pedley, 1993 WL 79588 (Minn. App. 1993). 10 Id. In addition, there is no cronvincing evidence that the comptiance checks were carried out in bad faith or were motivated by changes in City ordinances that will possibly affect the location of "adult uses" in the City. � 5'K(�jM�iT.'.'O Pv`� Cl �4 �-o�.w„J �c1 G Hc/h2�i�G 9 �_ 7� Page 1 Citation/Title 335 N.W.2d 745, State v. Abraham, (Minn. 1983) *745 335 N.W.2d 745 STATE of Minnesota, Appellant, v . Roland ABRAHAM, et al., Respondents, Scott Thomas, Respondent No. C8-83-276. Supreme Court of Minnesota. July 15, 1983. Prosecutions of 21 defendants for gross misdemeanor offense of selling intoxicating liquor to persons under age of 19, and of five other defendants for misdemeanor offense of selling nonintoxicating malt liquor to person under age 19 for consumption on premises, were dismissed by the District Court, Sibley County, Kenneth W. Bull, J., on grounds that defendants were entrapped into making sales. Prosecutors appealed. The Supreme Court, Wahl, J., held that double jeopardy clause barred prosecutor from appealing from judgment o£ acquittal by trial court acting as trier of £act on issue o£ entrapment. Appeal dismissed. 1. CRIMINAL LAW t°'�569 110 ---- 110XVII Evidence 110XVII(V) Weight and Sufficiency 11Qk569 Defenses in general, Minn. 1983. Defendant must raise defense of entrapment by showing by fair preponderance o£ evidence that government induced commission of crime; once defendant has raised issue by showing inducement, defense will bar conviction unless State can show beyond reasonable doubt that de£endant was predisposed to commit crime. 2. DOUBLE JEOPARDY G�59 135H ---- 135HIII Elements of Former Jeopardy 135Hk59 Empanelling and swearing jury, or swearing witness and receiving evidence. Formerly 110k173 [See headnote text below] 2, CRIMINAL LAW �1024(5) 110 ---- 110XXIV Review Copyright (c) West Group 1998 No claim to original U.S. Govt. works y�- �63 335 N.W.2d 745, State v. Abraham, (Minn. 1983) Page 2 110XXIV(D) Riqht of Review 110k1024 Right o£ Prosecution to Review 110k1024(5) Verdict or judgment of acquittal. Minn. 1983. Rule that judgment of acquittal, whether based on jury verdict of not guilty or on ruling by court that evidence is insu££icient to convict, may not be appealed and terminates prosecution when second trial would be necessitated by reversal, is binding on states, as is rule that jeopardy attaches when jury is impaneled or, in bench trial, when first witness is sworn or when evidence is taken. U.S.C.A. Const.Amend. 5. 3. CRIMINAL LAW �739.1(1) 110 ---- 110XX Trial 110XX(F) Province of Court and Jury in General 110k733 Questions of Law or of Fact 110k739.1 Entrapment 110k739.1(1) In general. Minn. 1983. When defendant elects to have claim of entrapment decided by trial court, trial court decides it as trier of fact. 4. DOUBLE JEOPARDY C�.�86 135H ---- 135HIV Effect of Proceedings After Attachment of Jeopardy 135Hk86 Retrial and premature termination of case in general. Formerly 110k180 [See headnote text below] 4. CRIMINAL LAW °G.�` 739.1(1) 110 ---- 110XX Trial 110XX(F) Province of Court and Jury in General 110k733 Questions of Law or of Fact 110k739.1 Entrapment 110k739.1(1) In general. Minn. 1983. If trial court as trier of fact decides that there was no entrapment, defendant is barred £som raising issue during jury phase of trial; on other hand, if trial court decides issue in defendant's favor, that is the same as finding of not guilty and therefore ends matter, causing prosecution to be terminated and further prosecution barred. U.S.C.A. Const.Amend. 5. 5. DOUBLE JEOPARDY G�103 135H ---- 135HIV E£fect of Proceedings After Attachment of Jeopardy 135Hk100 Acquittal Copyright (c) West Group 1998 No claim to original U.S. Govt. works 335 N.W.2d 745, State v. Abraham, (Minn. 1983) 135Hk103 What constitutes acquittal, in general. Page 3 Formerly 110k186 Minn. 1983. When trial court, acting as trier of Pact, decided that de£endants had been entrapped, prosecution was ended and decision constituted acquittal and double jeopardy clause barred appeal by State. U.S.C.A. Const.Amend. 5. *746 Syllabus by the Court Double jeopardy clause bars prosecutor from appealing from judgment of acquittal by trial court acting as trier of fact on issue of entrapment. Hubert H. Humphrey III, Atty. Gen., Norman B. Coleman, Jr., and Richard D. Hodsdon, Sp. Asst. Attys. Gen., St. Paul, Thomas G. McCarthy, County Atty., Winthrop, £or appellant. Carey & Emmings and John W Genty & Eggert and Richard D Carey, Fairfax, for Roland Abraham, et al. Genty, Winsted, for Scott Thomas. Considered and decided by the court en banc without oral argument. WAHL, Justice. This is an appeal by the state pursuant to Minn.R.Crim.P. 29.03, subd. 1. The appeal is from an order of the district court, which dismissed the prosecutions of 21 defendants for the gross misdemeanor offense of selling intoxicating liquor to a person under the age of 19, Minn.Stat. � 340.73, subd. 1(1982), and the prosecutions of 5 other defendants for the misdemeanor offense of selling nonintoxicating malt liquor to a person under age 19 for consumption on the premises, Minn.Stat. � 340.035, subd. 1(1) (1982). The state argues on appeal that the court erred in deciding that the defendants were entrapped into making the sales. We requested supplementary briefs on the issue of whether the state's appeal is barred by the double jeopardy clauses of the United States Constitution and the Minnesota Constitution. Holding that the appeal is barred, we dismiss the appeal. These prosecutions resulted from an investigation that had its genesis in the reception of complaints by the sheriff and county attorney for Sibley County that persons under the age o£ 19 were able to purchase alcoholic beverages in several named bars in the county without being required to show proper identification. The sheriff and county attorney decided in fairness that they should include all the bars and taverns in the county in their investigation. The sheriff obtained the assistance o£ an 18-year-old female and a 17-year-old male. In each case the decoys were instructed to enter the bar and attempt to purchase a 12-pack o£ beer if there was off-sale or a drink if on-sale only. In the latter situation, assuming a sale was made, they were either to carry the glass outside or empty it into a urine sample bottle. They were also told to 9�-�63 Copyright (c) West Group 1998 No claim to original U.S. Govt. works 9'� 763 Page 4 335 N.W.2d 745, State v. Abraham, (Minn. 1983) produce valid identification if asked for identi£ication and not to make any false representations concerning their age. Before and a£ter each night's investigation, they were given breath tests. The results, both before and after, were always .00, indicating that they did not consume any of the alcohol they bought. The decoys went to every bar and tavern in the county but one which was inadvertently missed. An undercover o££icer entered the bar £irst on each occasion and placed himself in a position where he could see the decoy(s) attempt a purchase. The *747 decoy(s) then entered and made the purchase. In four instances the undercover officer was not able to observe the sale. After the sale was made and the decoy(s) left the bar, another officer would enter the bar and, based on the description given by the decoy(s) and/or the undercover o£ficer, identify the person who made the sale. The cases were then forwarded to the county attorney for complaints. No arrests were made at the scene. A total of 23 bars and 29 bartenders were checked. Of the 29 bartenders, 27 in 21 bars made sales. One of the 27 was not charged because of identification problems. The remaining 26 were charged. Of the 29 bartenders who were checked, only 4 requested to see any identification card. (FN1) Two of the 4 sold beer anyway. The 2 who did not were not charged. Acting pursuant to State v. Grilli, 304 Minn. 80, 230 N.W.2d 445 (1975), the defendants waived their right to trial by jury on the issue o£ entrapment and submitted the issue to the trial court for decision at the omnibus hearing. The court decided the entrapment issue primarily on the basis of a written stipulation setting £orth the facts as we have stated them. The trial court reasoned that the officers, by using the decoys, violated the law themselves and that they in effect "ensnare[d] the law abiding and innocent into the commission of crimes [that do not] even require an intent on the part o£ the wrongdoer." Specifically, the court determined (a) that the state, throuqh its officers, violated the law in having the decoys purchase liquor and that this conduct constituted an improper inducement and (b) that the state had not proven that any of the defendants were predisposed to commit the crimes. With respect to this latter factor, the court stated that in its opinion the mere fact that the defendants willingly made the sales without inquiring was not itself indication of predisposition. The court concluded that if the defendants were not entrapped then "perhaps the defense of entrapment is inapplicable in cases involving sales of intoxicating liquor." [1] Minnesota follows the so-called subjective test of entrapment, and the defendant must raise the defense by showing by a fair preponderance of the evidence that the government induced the commission of the crime. Once the defendant has raised the issue by showinq inducement, the defense will bar a conviction unless the state can show beyond a reasonable doubt that the defendant was predisposed to commit the crime. State v. Ford, 276 N.W.2d 178, 182 (Minn.l979); State v. Gri1.Zi, 304 Minn. 80, 96, 230 N.W.2d 445, 456. Recently, in State v. Olkon, 299 N.W.2d 89, 107 (Minn.1980), cert. denied, 449 U.S. 1132, 101 S.Ct. 954, 67 L.Ed.2d 119 (1981), we stated that in order to show inducement the defense must show "something in the nature of persuasion, Copyright (c) West Group 1998 No claim to original U.S. Govt. works 9� ��03 335 N.W.2d 745, State v. Abraham, (Minn. 1983) badgering, or pressure by the state." We also stated in prosecution may prove predisposition "by evidence that the responded to the solicitation of the commission of a crime Page 5 Olkon that the accused readily by the state." A few courts have held that the defense of entrapment does not even apply to an illegal sale of liquor which does not require proof of any criminal intent. See, e.g., Lee v. State, 66 Ok1.Cr. 399, 92 P.2d 621 (1939). The general view, however, is that the defense does apply to liquor-sale offenses. The cases are collected in Annot., 55 A.L.R.2d 1322 (1957). A Minnesota case to this effect is State v. Boylan, 158 Minn. 263, 197 N.W. 281 (1924). We implied in Boylan that generally the de£ense of entrapment would not succeed in the context of liquor-sale offenses. *748 Cases that arise in the context of laws prohibiting the general sale of liquor are not completely in point because in those cases the defendant, by definition, knows that the sale is illegal. Cases that deal with the issue of entrapment in the context of sales to minors include Village of Spring Lake v. Gardner, 38 Mich.App. 189, 196 N.W.2d 5(1972); State v. Parr, 129 Mont. 175, 283 P.2d 1086 (1955). � It is strongly arguable that the trial court erred in determining that the defendants were entrapped. (FN2) However, we do not decide this issue because of our holding that the double jeopardy clause bars the state's appeal. [2] We base our holding that the state's appeal is barred on the decision of the United States Supreme Court in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). The general rule applied in Scott is that "[a] judgment of acquittal, whether based on a jury verdict o£ not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal." 437 U.S. at 91, 98 S.Ct. at 2193 (footnote omitted). Scott states that in determining whether a ruling by the trial court constitutes a judgment of acquittal, the trial court's characterization of its own action is not controlling. Rather, one must look behind the label and determine whether the trial court's ruling relates to the question of the defendant's factual guilt or innocence. The court stated: Our opinion in Burks [v. United States, 437 U.S. 1, 91 S.Ct. 2141, 57 L.Ed.2d 1(1978) ] necessarily holds that there has been a"failure of proof," *** requiring an acquittal when the Government does not submit sufficient evidence to rebut a defendant's essentially factual defense of insanity, though it may otherwise be entitled to have its case submitted to the jury. The de£ense o£ insanity, like the defense of entrapment, arises from "the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed of£ense," United States v. Russell, 411 U.S. 423, 435 [93 S.Ct. 1637, 1644, 36 L.Ed.2d 366] (1973), where other facts established to the satis£action of the trier of fact provide a legally adequate justification for otherwise criminal acts. Copyright (c) West Group 1998 No claim to original U.S. Govt. works 9� ��3 335 N.W.2d 745, State v. Abraham, (Minn. 1983) Page 6 Such a factual finding does "necessarily establish the criminal defendant's lack of criminal culpability," *** under the existing law; the £act that "the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles," *** af£ects the accuracy that determination, but it does not alter its essential character. By contrast, the dismissal of an indictment for preindictment delay represents legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation. of � 437 U.S. at 97-98, 98 S.Ct. at 2197 (footnote omitted). The rule o£ the Scott case is binding on the states, as is the rule that jeopardy attaches when the jury is impaneled or, in a bench trial, when the first witness is sworn or when evidence is taken. Christ v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). [3][4] As our decision in State v. Ford, 276 N.W.2d 178, 183, makes clear, when the defendant elects to have the claim of entrapment decided by the trial court, the trial court decides it as trier of fact. (FN3) Thus, *749. if the trial court as trier of fact decides that there was no entrapment, the defendant is barred from raising the issue during the jury phase of the trial. On the other hand, if the trial court decides the issue in the defendant's favor, that is the same as a finding of not guilty and therefore ends the matter, causing the prosecution to be terminated and further prosecution barred. Thus, although the state's appeal in the instant case is styled as a pretrial appeal, in reality it is an appeal by the state following an acquittal. [5] We indicated in Grilli that appeal by the state was pesmissible under Minn.Stat. � 632.11. 304 Minn. at 95, 230 N.W.2d at 455. Scott, decided subsequent to Gri11i, dictates a contrary result as to appeal. There has been criticism of the reasoning of the Scott case. See, e.g., Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct.Rev. 81, 143-145. However, we are bound by the Scott decision and the principles expressed therein. Following Scott, we hold that when the trial court, acting as trier of fact, decides that there was entrapment, that ends the prosecution and constitutes an acquittal from which the state may not appeal. Attorney for respondents Abraham, et al., is allowed $400 attorney fees on this appeal. Attorney for respondent Thomas is allowed $400 attorney fees on this appeal. Appeal dismissed. FN1. Minn.Stat. y 340.942 (1982) provides: In any criminal proceeding for the enforcement o£ the provisions oP sections 340.035, 340.73, 340.83, 340.941, relating to the sale or furnishing o£ non- intoxicating malt liquor or intoxicating liquor to the persons described therein, the defendant may establish by competent evidence that he has made a Copyright (c) West Group 1998 No claim to original U.S. Govt. works 335 N.W.2d 745, State v. Abraham, (Minn. 1983) � � /r��FN2 98-�� 3 Page 7 bona fide and careful investigation of the status of such person and he has determined upon evidence sufficient to convince a careful and prudent person that such sale is not a violation o£ said sections; such evidence shall be considered in determining whether the de£endant is guilty of intent to violate said laws. . The authorities attempted to include a11 the bars and taverns in the investigation and, althouqh they used "decoys," they did not try to deceive the sellers into thinking that the decoys were of age. De£endants did not show that the decoys persuaded, badgered, pressured or otherwise induced them to violate the law. The evidence that defendants readily sold the liquor, either without checking the identification cards of the decoys or without paying any attention to the information on the cards, showed that the defendants were predisposed to commit the crimes. FN3. The Ford case should be consulted for its analytical precision. Particularly, it clarified the meaning of the phrase "entrapment as a matter of law," a phrase which theretofore had been used rather loosely and confusingly. Copyright (c) West Group 1998 No claim to original U.S. Govt. works § 617.291 ABOItTION; OBSCE1vITY: HOUSES OF ILL-FAi� Historical and Statutory Notes 1987 Legislation dances, or other exL�bitions presented before an The 1957 amendmeut rewrote subd. 1 and ex- a"a'ence. For former text of subd. 1, see the maia volume. Section 3 of the ameadatory act Promded tended coverage of subd. 2 to disemition with- tyyt the amendment to this seciion was effeetive out monetary eonsideration in a plaee of publie �� 1, 1957, and applied to crimes committed accummodation, and to sexually explicit plays, on or after that date• 617293. Harmful materials; dissemination and display to minors prohibited Subdivision 1. Dissemination. It is unlawfi�l for any person lmowingly to sell or loan for monetary consideration to a ininor: (a) Any pietuxe. PhotogaPU, drawing. SculPture, motion pieture �film or similaz visuai representation or image of a peison or portion of the human body wluch depiets nudity, sexual eonduct, or sadomasochistic abuse and wtrich is hazmful to minors, or @) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in elause (a), or whieh contains explicit and detailed verbal descriptions or narrative accrounts of sexual excitement, sexual'conduct, or sadomaso- chistie abuse which, taken as a whole, is harmfnl to minors• Subd 2. Display. (a} It is unlawful for any person eommercially and lmowingly to exkubit or display any material which is harmful to minors in its content in any place of public accommodation where minors aze or may be present and where minois are able ta view the material unless eaeh item is kept in a sealed wrapper at all times. (b) It is unlawful for any peison coinmerciaIIY and Imoiaingly to exhibit or display any material the cover or paekaging of which, standing alone, is harmful Lo minoTS in any place of public accommodation where minors are or may be present or allowed to be present and where minors are able to view the material unless eaeh item is blocked from view by an opaque cover. The opaque eover requirement is satisfied if those portions of the cover or packaging containing the material I�armful to minors are blocked from view by an opaque cover. (e) The provisions of this subdivision do not apply to the exhibition or display of matei�ais harmful to minors under circumstances where minors are not present or are not able to view the material or the material's cover or packaging. A person may comply with the require- ments of this paragraph by (1) physically segregating the material in a manner that physieally prohibits access ta and view of the material by minors, (2) prominenUy posting at the entrance to the restricted area: "Adults only—you must be 18 to enter," and (3) enforcing the restriction. - Amended by Laws 1988, c. 452, § 1� eff. Aug. 1, 1988. Historical and Statutory Notes 1988 Legislation Laws 1985, c. 452, § 4, pmvided that Laws 1988, 'i7�e 1988 amendment designated subd 1 as e. 452, § 1, was effective August 1, 1985, and sueh, and added subd. 2, relating to display of applied to crimes eommitted on or after that date. harmfulmateria7s. ' - -. " Cross References Human service licensing, applieation procedures, see § 245A.04. � United States Supreme Court Child pornography, First Ainendment, scienter Ine, U.S.Cat.1994, 115 9.Ct 464, 513 U.S. 64, 130 presumption, knowledge of age and seYUallY explie- L.Ed2d 372, on remand 77 F.3d 491. it nature of material, see U.S. v. X-Citement vdeo, . 614294. Exhi6ition prohi6ited It is unlawful for any person knowingly to exhibit for a monetary consideration to a minor or Imownigly to sell to a minor an admission ticket or pass or Imowingly to admit a minor; 466 9� 7h3 Chapter 276. Dissemination of Indecent Materials to Minors" '�Editor's note--The chapter is derived from Ord. No. 16318, adopted July 19, 1977. A revised version, enacted by Ord. No. 16559, adopted Sept. 4, 1979, expired by its terms two yeazs from date of enactment. Sec. 276.01. DeSnitions. As used in this chapter and Chapter 275, the terms defined in this section shall have the following meanings ascribed to them: Harmful to minors means that quality of any description or representation, in whatever form of nudity, sexual conduct, sexual excitement or sadomasochistic abuse, when it: (1) Taken as a whole, predominantly appeals to the pnxrient interest in sex of minors; (2) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (3) Taken as a whole, lacks serious literary, artisric, political or scientific value for a legitimate minority of older, normal minors. Minor means any person under the age of eighteen (18) yeazs. Nudiry means the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a full opaque covering of any portion thereof below a point immediately above the azeola, or the depiction of covered male genitals in a discernable turgid state. Sadomasochistic abuse means flagellation ar torture by or upon a person clad in undergarments, in a revealing coshune, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed. Sexual conduct means acts of masturbafion, homosexuality, sexual intercourse or physical contact with a person's ciothed or unclothed genitals, pubic area, buttocks or female breast. Sexual excitement means the condition of human male or female genitals when in a state of sexual stimulation or arousal. (Code 1956, § 475.01; Ord. No. 17805, § 4, 1-24-91) Sec. 276.02. Prohibited. 9�-7(03 (a) It shall be unlawful for any person knowingly to disseminate, sell or loan for monetary consideration to a minor: (1) Any picture, photograph, drawing, sculpture, motion picture film or similar visual reproduction or image of a person or portion of the human body which depicts nudity, seaual conduct or sadomasochistic abuse and which is hazmfid to minors; or (2) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in the preceding subparagraph (i) hereof, or which contains explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, when taken as a whole, is hannfiil to minors. (b) It is unlawful for any person Irnowingly to e�chibit for a monetary consideration to a minor or knowingly to sell to a minor an admission ticket or pass or knowingly to admit a minor for a monetary consideration to premises whereon there is eafhibited a motion picture, show or other presentation which, in whole or in part, depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors. (c) Any person who shall violate the provisions of this section shall be guilty of a misdemeanor. (Code 1956, § 475.02) Sec. 276.03. Presumption and defenses. (a) A person who engages in the conduct proscribed by section 276.02 is presuxned to do so with knowledge of the character and content of the material sold or loaned, or the motion picture, show or presentation e�ibited or to be e�ibited. (b) In any prosecution for disseminating indecent or hatmful material to minors, it is an affirmative defense that: (1) The defendant had reasonable cause to believe that the minor involved had reached his or her eighteenth birthday; and (2) Such minor e�iibited to the defendant a draft cazd, driver's license, birth certificate or other official or apparently official document purporting to establish that such minor had reached his or her eighteenth birthday. (Code 1956, § 475.03; Ord. No. 17805, § 5, 1-24-91) Sec. 276.04. Reserved. 98 ��3 Editor's note--Section 276.04, providing exemprions from the provisions of this chapter and derived from Code 1956, § 475.04, was repealed by § 6 of Ord. No. 17805, adopted Jan. 24, 1991. ��' �� Sec. 310.05. Hearing procedures. (a) Adverse action; 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 conditions upon a license, or the denial of an application for the grant, issuance or renewal of a license, or the disapproval of a license issued by the State of Minnesota, the applicant or licensee shall be given norice and an opporhuiity to be heard as provided herein. The council may consider such adverse actions when recommended by the inspector, by the director, by the director of any executive department established pursuant to Chapter 9 of the Charter, by the city attorney 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 before 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 prepazed and served or mailed by the inspectar or by the city attorney. (c) Hearing. 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 heasing shail 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 sl�ail be provided an opportunity to present evidence and arguxnent 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 testimony or evidence or otherwise participate in such hearing. (c-1} Procedure; hearing examiner. The hearing examiner shall heaz 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, together with a recommendation for adverse action. The council sha11 consider the evidence contained in the record, the hearing examiner's recommended fmdings of fact and conclusions, and shall not consider any factual testimony not previousiy submitted to and considered by the hearing examiner. After receipt of the hearnag examiner's findings, conclusions, and recommendarions, the council shall provide the applicant or licensee an opportuniTy to present oral or written azguments alleging error on the part of the examiner in the application of the law or interpretarion of the facts, and to present azgument 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 azguments presented at the hearing, the council shall determine what, if any, adverse action shall be taken, which action shall be by resolution. Tlae council may accept, reject or modify the fmdings, conclusions and recommendations of the hearing examiner. 9� �� (c-2) Ex parte contacts. If a license matter has been scheduled for an adverse hearing, council members shall not discuss the license matter with each other or with any of the parties or interested persons involved in the matter unless such discussion occuts on the record during the hearings of the matter or during the council's final deliberarions of the matter. No interested person shall, with knowledge that a license matter has been scheduled for adverse hearing, convey or attempt to convey, orally or in writing, any information, azgument 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 regazding status, scheduling or procedures concerning a license matter. An interested person, for the purpose of this pazagraph, shall mean and include a person who is an officer 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 sha11 receive and keep a record of such proceedings, including testimony and e�ibits, and shall receive and give weight to evidence, including hearsay evidence, which possesses probarive value commonly accepted by reasonable and prudent persons in the conduct of their affairs. ( fl Council action, resolution to contain fzndings. Where the council takes adverse action with respect to a license, licensee or applicant for a license, the resolution by which such action is taken shall contain its findings and deternunation, including the imposition of conditions, if any. The council may adopt a11 or part of the findings, conclusions and recommendations of the hearing examiner, and incorporate the same in its resolution taking the adverse action. (g) Additional procedures where required. Where the provisions of any statute or ordinance require additional notice or hearing procedures, such provisions sha11 be complied with and shall supersede inconsistent provisions of these chapters. This shall include, without limitation by reason of this specific reference, Minnesota Starixtes, Chapter 364 and Minnesota Statutes, Section 340A.415. (h) Discretion to hear notwithstanding withdrawal or surrender of application or license. The council may, at its discretion, conduct a hearing or direct that a hearing be held regazding revocation or denial of a license, notwithstanding that the applicant or licensee has attempted or purported to withdraw or surrender said license or application, if the attempted withdrawal or surrender took place after the applicant or licensee had been notified of the hearing and potential 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 continuarion 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 makiug the request. 9� �� (j) If the council imposes an adverse action as defined in section 310.01 above, a generic notice of such action shall be prepazed by the license inspector and posted by the licensee so as to be visible to the public during the effecrive period of the adverse action. The licensee shall be responsible for taking reasonable steps to make sure the norice remains posted on the front door of the licensed premises, and failure to take such reasonable precautions may be grounds for fiirther 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 examiuer. The costs of a contested hearing include, but aze not Innited to, the cost of the administrarive law judge or independent hearing exauiiuer, stenographic and recording costs, copying costs, city staff and attorney time for which adequate recoxds have been kept, rental of rooms and equipment necessary for the hearing, and the cost of expert wimesses. 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 hazassment; (ii) the nature of the violarion 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, and/or the circumstances under which the violation occurred were aggravated and serious; (iii) the violation created a serious danger to the public health, safety or welfare; (iv) the violafion involved unreasonable risk of harm to wlnerable 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 409.26 of the Legislative Code; or (vii) the viola6on involved the sale of cigarettes to a minor. (1) Imposition 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. (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) Sec. 310.06. Revocation; suspension; adverse actions; imposition of conditions. (a) Council may take adverse action. The council is authorized to take adverse action, as defined in secrion 310A1 above, against any or all licenses or permits, licensee or applicant for a license, as provided in and by these chapters. Adverse acrions against entertaiument licenses issued under Chapter 411 of the Legislative Code may be initiated for the reasons set forth in g8-�b3 subsecfion (b) below, or upon any lawful grounds which aze communicated to the license holder in writing prior to the hearing before the council. Such actions shall be initiated and carried out in accordance with the procedures oudine in secrion 310.05; provided, bowever, that the formal notice of hearing shall be used to initiate the adverse action without the use of prior procedural steps. (b) Basis for action. Such adverse acrion may be based on one (1) or more of the following reasons, which are in addition to any other reason specifically provided by law or in these chapters: (1) The license or permit was procured by misrepresentation of material facts, fraud, deceit or bad faith. (2) The applicant or one (1) acting in his or her behalf made oral or written misstatements or misrepresentations of material facts in or accompanying the application. (3) The license was issued in violation of any of the provisions of the Zoning Code, or the premises which aze licensed or which aze to be licensed do not comply with applicable health, housing, fire, zoning and building codes and regulations. (4) The license or permit was issued in violation of law, without authority, or under a material mistake of fact. (5) The licensee or applicant has failed to comply with any condition set forth in the license, or set forth in the resolution granting or renewing the license. (6) a. The licensee or applicant (or any person whose conduct may by law be imputed to the licensee or applicant) has violated, or performed any act which is a violation of, any of the provisions of these chapters or of any statute, ordinance or regulation reasonably related to the licensed activity, regardless of whether criminal charges have or have not been brought in connection therewith; b. The licensee or applicant has been convicted of a crime that may disqualify said applicant from holding the license in question under the standards and procedures in Minnesota Statutes Chapter 364; or a The licensee or applicant (or any person whose conduct may by law be nnputed to the licensee or applicant) has engaged in or permitted a pattern or practice of conduct of failure to comply with laws reasonably related to the licensed acrivity or from which an inference of lack of fitness or good chazacter may be drawn. (7) The activifles of the licensee in the licensed activity created or have created a 9� 7l0 3 serious danger to the public health, safety or welfaze, or the licensee performs or has performed his or her work or activity in an unsafe manner. (8) The licensed business, or the way in wYrich such business is operated, maintains or pernuts condirions that unreasonably annoy, injure or endanger the safety, health, morals, comfort or repose of any considerable number of inembers of the public. (4) Failure to keep sidewalks or pedestrian ways reasonably free of snow and ice as required under Chapter 114 of the Saint Paul Legislative Code. (10) The licensee or applicant has shown by past misconduct or unfair acts or dealings: physical abuse, assaults or violent actions done to others, including, but not limited to, actions meeting the definition of criminal sexual conduct pursuant to Minnesota Statutes Sections 609342 through 6093451; sexual abuse, physical abuse or maltreatment of a child as defined in Minnesota Statutes Section 626.556, subdivisions 2 and 10e, including, but not limited to, acts which constitute a violation of Minnesota Statutes Sections 609.02, subdivision 10; 609321 through 6093451; or 617.246; neglect or endangerment of a child as defined in Minnesota Statutes Section 626.557, subdivision 2; the manufacture, distribution, sale, gift, delivery, transportation, exchange or barter of a controlled substance'as defined in Minnesota Statutes Chapter 152; the possession of a controlled substance as defined in Minnesota Statutes Chapter 152 in such quanrities or under circumstances giving rise to a reasonabie inference that the possession was for the purpose of sale or distribution to others; or by the abuse of alcohol or other drugs, that such licensee or applicant is not a person of the good moral character or fitness required to engage in a licensed activity, business or profession. (ll) The licensee or applicant has materially changed or pernutted a material change in the design, construction or configuration of the licensed premises without the prior approval of the city council in the case of Class III licenses, the director in the case of Class II licenses, and the inspector in the case of Class I licenses, ar without first having obtained the proper building permits from the city. (12) The licensee or applicant has violated section 294.01 of the Legislative Code, or has made or attempted to make a prohibited ex parte contact with a council member as provided in section 310.05(c-2) of the Legislative Code. The terms "licensee" or "applicanY' for the purpose of this section shall mean and include any person who has any interest, whether as a holder of more than five (5) percent of the stock of a corporation, as a partner, or otherwise, in the premises or in the business or acfivity which aze licensed or proposed to be licensed. With respect to any license for activiries entiUed to the protection of the First Amendment, notwithstanding the foregoing provisions, neither the lack of good moral character or fimess of 9�-763 the licensee or applicant nor the content of the protected speech or matter shall be the basis for adverse action against the license or application. (c) Imposition of reasonable conditdons andlor restrictions. When a reasonable basis is found to impose reasonable conditions and/or restrictions upon a license issued or held under these chapters, any one (1) or more such reasonable conditions and/or restrictions may be imposed upon such license for the purpose of promoting public health, safety and welfaze, of advancing the public peace and the elimuiation of conditions or actions that constitute a nuisance or a detriment to the peaceful enjoyment of urban life, or promoting security and safety in nearby neighborhoods. Such reasonable conditions and/or restrictions may include or pertain to, but aze not limited to: (1) A limitation on the hours of operation of the licensed business or establishment, or on particulaz types of activities conducted in or on said business or establishment; (2) A limitation or restricfion as to the location within the licensed business ar establishment whose [sic] particular type of activities may be conducted; (3) A lunitation as to the means of ingress or egress from the licensed establishment or its parking lot or ixnmediately adjacent area; (4) A requirement to provide off-street parking in excess of other requirements of law; (5) A limitation on the manner and means of advertising the operation or merchandise of the licensed establistunent; (6) Any other reasonable condifion or restriction luniting the operation of the licensed business ar establishxnent to ensure that the business or establishxnent will hannonize with the character of the area in which it is located, ar to prevent the development or conrinuation of a nuisance. The inspector may impose such conditions on Class I licenses with the consent of the license holder, or may recommend the imposition of such conditions as an adverse acrion against the license or licenses; the inspector has the same power with respect to Class II licenses. The council may impose such conditions on Class III licenses with the consent of the license holder, or upon any class of license as an adverse action against the license or licenses following notice and hearing as may be required. Such conditions may be imposed on a license or licenses upon issuance or renewal thereof, or upon and as part of any adverse action against a license or licenses, including suspension. Conditions imposed on a license or licenses shall remain on such licenses when renewed and shall continue thereafter until removed by the council in the case of conditions on Class III licenses or conditions imposed by adverse action, and by the inspector in the case of Class I and II licenses. 98 (d) Standards for muZtiple Zicense determination. In any case in which the council is authorized to take adverse action against less than all of the licenses held by a licensee, or applied for by an applicant, the following standards may be used: (1) The nature and gravity of the grounds found by the council to exist upon which the adverse action would be based; (2) The policy and/or regulatory goals for the particular licenses involved, either as embodied in the Legislative Code or as found and deterniined by the council; (3) The interrelationship of the licenses and their relative importance to the overall business enterprise of the licensee or applicant; (4) The management practices of the licensee or applicant with respect to each of such licenses; (5) The ea�tent to which adverse action against less than all of the licenses or applications would result in difficulty in enforcing and monitoring the adverse action taken; (6) The hazdship to the licensee or applicant that would be caused by applying adverse acrion to all licenses or applications; and (7) The hardship and/or danger to the public, or to the public health and welfare, that would result from adverse action against less than ali of the licenses or applications. (Code 1956, § 510.06; Ord. No. 17584, § 1, 8-25-88; Ord. No. 17657, § 15, 6-8-89; Ord. No. 17659, § 2, 6-13-89; Ord. No. 17901, §§ 2, 3, 1-14-92; Ord. No. 17917, §§ 2, 3, 3-31-92; Ord. No. 17922, § 1, 4-28-92; C.F. No. 94-500, § 3, 7-6-94; C.F. No. 94-1340, § 3, 10-14-94; C.F. No. 95-473, § 5, 5-31-95) 98_� �3 § 310.15 LEGISLATIVE CODE definition in section 310.01, shall for the purpose of this section inciude the individual partners or members of any partnership or corporation, and as to corporations, the o�cers, agents or mem- bers thereof, who shall be responsibie for the violation. (Code 1956, § 510.15) Sec. 310.16. Reserved. Editor's aote-Section 310.16, pertaiaing to license fees aad anauai inczeases, and derived from Ord. No. 16885, adopted Feb. 11, 1982; Ord. ?�o. 17059, adopted Oct. 20, 1983; and Ord. No. 17303, adopted Oct. 29, 1985, was repealed by Ord. No. 17584, § 1, adopted Nov. 19, 1991. Sec. 310.17. Licensee's responsibility. Any act or conduct by any clerk, employee, manager or agent of a licensee, or by any person providing entertainment or worldng for or on behalf of a licensee, whether compensated or not, which act or conduct takes place either on the Ticensed premises or in any parking lot or other area adjacent to (or under the lease or control ofl the licensed premises, and which act or conduct violates any state or federal statutes or regula- tions, or any city ordinance, shall be considered to be and treated as the act or conduct of the licensee for the purpose of adverse action against all or any of the licenses held by such licensee. To the estent this section is in conflict with sections 409.14 and 410.09 of the Legislative Code, this section shall be controlling and prevail; but shall not otherwise amend, alter or affect such sections. (Ord. No. 17629, § 1, 1-31-89) Sec. 310.18. License fee schedule. Notwithstanding the provision of any other ordinance or law to the contrary, the following fees aze hereby provided for all the licenses listed herein. These fees supersede all inconsistent pro- visions, including, but not limited to, graduated fee provisions, in these chapters and in other ordinances and laws, and include the fee for the license application as part of the license fee; provided, however, that this section does not amend or modify sections 310.09(a) or 310.09(d) of the Legislative Code with respect to exempt orga- nizations or late fees. Pursuant to section 310.09(b) of the Legislative Code, these schedules shall be posted in the office of the directar of the office of license, inspections and environmental protec- tion. These fees shall be effective for license renewals and new license applications occurring on and after January 1, 1995, or on the effective date of this section, whichever is later; provided, however, that with respect to all licenses whose renewal dates occur after the effective date of this new schedule, there shall be no increases in, nor offsets or refunds of, the eaisting fees paid, or due 2nCl Owing. . (a) ENFORCEMENT LEVEL 1 Chapter/Section No. License Description Fee 167 Commemaal Velvcle $66.00 198.04 Keeping of animals (Exotic Pets) 66.00 316 Animal Foods Management & Dis- tribution 66.00 317 Amusement Rides 66.00 323 Christmas Tree Sales 66.00 325 Close Out Sale . 66.00 327 Dry Cleaning Pickup Statioa 66.00 332 Liquid Fuel Ve]vcle 66.00 333 Solid Fuel Yelucle 66.00 336 Private F�el Pump 66.00 340 Mercantile Broker 66.00 345 Peddler (SoliciWr/h�ansient) 66.00 348 iteatal of Clothing & Uehicle ' 66.00 349 Rental of Clothes Attire Vehicle 66.00 350.02 Rental of Hospitat Equipment 66.00 350.02 Rental of Hospital Equipment Ve- hicle 66.00 351 � Rental of Kitchenware 66.00 353 Roller Rinks 66.00 355.01 Secondhaad Dealer- (a) & (b) Siagle Location 66.00 357.03 Refuse HaulerEach Vehicle Over One -� 66.00 359 Souad 'hvcks & Broadcast Uehi- cles 66.00 371 Finishing Shop 66.00 361.14 1bw Truck/4Vrecker Vehicle 66.00 362 1Yee lkimmeaAdditioaal Uehicle 66.00 372 Tire Recappiag Plant 66.00 376.16(d) Taxicab Driver (new) 66.00 377 Lawa Fertilizer & Pesticide Ap- plication 66.00 380 , Tanning Facility 66.00 382 � Pet Grooming 66.60 409.11 OuW oor Change in Service Area 66.00 412 Massage Center (Class B) - 66.00 414 Massage Therapist 66.00 424.02 Gasoline Filling Statioos 66.00 Supp. No. 33 2036 98-� 3 OFFICE OF ADNIIl�TISTRATTVE HEARINGS FOR THE COUNCIL OF THE CITY OF SAINT PAUL In re all licenses held by Jill D. Rasmuson, d/b/a R& R Books, for the premises located at 674 W. UniversiTy Avenue CITY'S PROPOSED EXFIIBITS TO: Judge Barbaza Neilson, Admiuistrative Law Judge, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, MN 55401 The following constitutes a list of the City's proposed e�ibits far the Administrative Law Hearing on June 9, 1998. E�hibit No. E�. No. 1 Eyh. No. 2 E�. No. 3 Exh. No. 4 Description License Screen Information Printout (1 p.) Saint Paul Police Report CN# 98-047-674 Notice of Violation dated April 17, 1998 with Affidavit of Service (3pp) Notice of Hearing dated May 8, 1998, with Affidavit of Service (4pp) C+'.({.�D.'J �62M�S-�!"�.�1 5�.1P �2 M�..(u(L � nM2:ac�PRT�• �" co M Q�-t �1-.JG.c Cl4c c.k- � t�J • Also attached, please find copies of the applicable aint Paul city ordinances and state statutes: Minn. Stat. §617293 Saint Paul Legislative Code Chapter 276 Saint Paul Legislative Code §310.05 Saint Paul Legislative Code §310.06 Respectfiilly submitted this 9�' day of June, 1998 %� �?s � Virginia Palmer Assistant City Attorney 400 City Hall Saint Paul, MN 55102 (612)266-8710 98 Lic ID......•••••••••.••• STAT..........•••......•- Business Name............ Address .................. Zip ................••••.. Doing Business As........ License Name ............. E� Date ................. Insurance Carrier........ Ins. Policy Number....... Insurance Effective Date. Ins. Expiration Date..... NOTE AREA ................ Tax Id ................... Worker Comp Exp Date..... Telephone ................ 32901 AC RASMUSON, JILL D 674 UNIVERSITY AVE W 55104 R & R BOOKS MAD MACHINE IN EXCESS OF 10 MECH AM[7SE DEVICE OPER W/10 MADS 10/31/98 INSP CHANGE FROM 02 TO O1 ON 4/09/92 INSPECTOR CHANGE FROM BARB TO MIKE - 1/6/92 1994 MAD(0056-0075) 3934023 10/15/95 228-1055 4 n e e icenses e y i .� mus � — d/b/a R & R Books , City's Exh. # 1 - Qe•d Pa _�_� I Day enth Daze r � Ciass: Lxsfion Of CF Tims 8 Date o( Occurte�xe: o«„Rad �ae O senv�,: iL6 £ZS9Z6zZi9 ST. PAUL POLIGE DEPARTMENT GENEAAI REPORT n�. on �t 2- 9R�,a � n�e. «, nea�: ldo F' f 1-� + G t f- (�, �` rA � '� a c F}� Middle ��as 05:7T 866t-90 `�'-7�v�3 tmense: �'q !4 o r L`'� " a 7 U� Bas. Phone �Disposl8otr. ❑ Records � Crime Lsb n a.s� �� DO � �� A . . _"_ —.. _ . .___ -�----- . On 43:28_Squad.742 did a-compliance-check atR&RBaaksb?4W. •�----- - University with the assistance of Off. Reilly and Kris Schweinler of LIEP. Our puipose was to --- —__. .._ ..... _.. ��detemvne if employees'woui8' ckeck £or iderifificafioa of the nridecage person or sell an ttem o£ �� ---_ _-- sexi`ally e nature verM:umesota Statpte .Z24�......_—�._.._.. .---- ---- --- - _---- Prior to going out, T met the undercover person wiih a DOt3 0£ 8-3-82 in tkte office of the � --�ice-Unit-aE-HQ—I-phofographed� and-am retaining photo Vice YJ'nit-"I�tis •--• ___ ._ - Schvteinler provided a perntission slip signed by his parem to take part in this operation�He v_vg,c...___._ .... .. ,- -�-- searefied and had no TD. He was 15 yeus old. __ _-- 2�t-1602hours I had the undarcaver--go into the establishment: He had been-givert-money � ---` to purchase the materials with and had no sexually expficit material on lus person. I Followed him .__ _.. _,_.. _ _____ _ _�._� .. "'�""ut`s�i ttiereafte"r, I no_ there was orie c liefiind fhe counter. '�he undercover chose a . . , : « ..____. __ moyie&alled."Qur.Bang...An Orgy.inHvery.Box'=and-a.tuvn-Pack.magaztne.eutRled-Adam and-_.._...--..... Raide�' that were sealed in plastic from among the selections available on the shelves. I observed _ �-- �-- -the undenovertake the selectionstorthe connter: - �'he clerl�'wiihout"fiesitation'r�ag up the � purchase without asking foi TD, placed the items in a bag, took moncy.from the undercover artd_ _, ...._ _.._. gave the items to him. -_. _. ____�I-follav�ed hun out to-the-car•where Off Reil}y-and I4ris Schweinlerwerewaiting. had the undereover sit in the cat while the rest of us went into the establishaient to confront the .. _. _ _.._.....---_ _... ___.____-------..._..__.__ ..__--- ...-----..__ ____...__......... .._....... .. ..'. castuer. Lenteted, display.edlny.pohee.badge.and idenUfied.myself as a St. Paul-PohceSergeant of -..._ the Vice Unit to the cashier later ID'd as Dirl, Calvin Everett 743 Cazroll Ave. 55104 home -- -- - � ---- phone 291=1370. DdB "&25=41. He said "If's:ny �fault" iri ifiaE tie didn'£ che`cic fo� TA'froin t�e �� ___.._,_ undercover. He went on to day_tfiat he.had beep.working there.for ten years. I told himthstl-..--• �- would prepare a repor[ for the prosecutor to consider charges against him for selling sexually �- -explicit-materiaIs to a minor. He was nottaken into-custody. °--� Once back at HQ, I briefly reviewed the video. It contained sexually explicit _material� I_„ .._.�.._... - --..._._ . . . �--- reiiiove� th'e plasiic�wrappe`r of ttie magaunes and observed numerous photos of people's genitalia.but no penetration._The case containing the video was very worn indiwting that the -- - video had been ased for some time possibly as a rental. �-- The video and magaanes were placed in the Property Room as evidence. Thi, ca�e wa� �arrr takee ta Till G�rber of the St. Paul City Atty's Office for GM screening. No.: ] Dl� ❑ BO 9❑ Th� 0 Pu°P ❑ Cf�U � F&P Q Au�to ❑ DAO ❑ C� m i rNn��rn i S c x«a r �)- � l.sb LncE ri Room rill 0 z � oO � J J � d/b/`d R aSi I2 �OOkS � City's Exh. # 2 GV�JGDYY 1.� LV � � �'�+'� �/ r "/ � C SA[N2 PAUL i • � � AAAA April 17,1998 9� r�3 OFF�OF Tf� CITY ATTORNEY Peg ityAttorney Civi7Division 400 Ciry Ha71 Te%phone: 672 266-8710 1 S Wes[ Kel7ogg Blvd Facsimile: 612 298-5679 Saint Paul, Minnesot¢ 55101 NOTICE OF VIOLATION Owner/Manager R & R Books 674 University Avenue West Saint Paul, Minnesota 55104 RE: All licenses held by Jill D. Rasmuson d/b/a R& R Books for the properry located at 674 University Ave. W. in St. Paul License ID No.: 32901 Our File No.:98-0156 Dear Sir/Madam: The Director of the Office of License, Inspections and Environmental Protection is recommending that adverse action be taken against your license. The basis for the adverse action is: On or about April 6, 1998 you or another employee sold sexually ezplicit material to a minor. This is a violation of Minn. Stat. § 617.293 subd. 1(a) and subd. 1(b), and Saint Paul Legislative Code § 276.02(a). If you do not dispute that the above incident took place, please send me a letter with a statement to that effect. The matter will then be scheduled for a hearing befare the St. Paul City Council to determine what penalty, if any, to impose. You will have an opporlunity to appeaz and speak on your own behalf, or to have someone appear there for you. On the other hand, if you wish to dispute the above facts, I will schedule an evidentiary hearing before an Administrative Law Judge (AL�. If you wish to have such a hearing, please send me a letter stating that you aze contesting the facts. You will then be sent a"Notice of Hearing," so you will know when and where to appeaz, and what the basis for the hearing wili be. �n e e icens �� — d/b/a R & R Books _ City's Exh. # 3 Page 2 R & R Books Apri117,1998 • � 9�'�� In either case, please let me know in writing no later than Wednesday, April 29,1998, how you would like to proceed. If I have not heard from you by that date, I will assume that you are not contesting the facts. The matter will then be scheduled for the hearing before the St. Paul City Council, If you have any quesrions, feel free to call me or have your attorney call me at 266-8710. Sincerely, __; / � Virginia . Palmer Assistant Ciry Attorney � �--�' ✓�^a� cc: Robert Kessler, Director, LIEP Christine Rozek, LIEP Peggy Byme, Exec. Director, Summit-University Planning Council, 627 Selby Ave., St. Paul, MN 55104 i STATE OF MINNESQTA ) ) Ss. COUNTY OF RAMSEY � q�-��3 AFFIDAVIT OF SERVICE BY MAIL JOANNE G. CLEMENTS, being first duly sworn, deposes and says that on April 17, 1998, she served the attached NOTICE OF VIOL,ATION on the following named person by placing a true and correct copy hereof in an envelope addressed as follows: Owner/Manager R & R Books 674 University Avenue W. St. Paul, MN. 55104 (which is the last known address of said person) and depositing the same, with postage prepaid, in the Unite�ates mails at St. Paul, Minnesota. Subscribed and sworn to before me this 17th d�-s�f Aari1�1998. •�¢p sendx3 •wwdJ ^�' �, —� e �yAytl10N on' �d'da31.3d ` • OFF� OF THS CITY ATTORNHY Peg CiryAnnrney �� OF SAINT PAUL leman, Mayor W� May 8, 1998 CrvilDivisian 400 Gry Hn1l IS {Yert%lloggBlvd Saint Pau� Minnesnta 55702 NOTICE OF HEARING Mr. David Gronbeck Law Offices 701 Fourth Avenue South, Suite 1700 Minneapolis, Minnesota 55415 RE: All licenses held by Jill D. Rasmuson d/b/a R& R Books for the premises located at 674 University Ave. W. in St. Paul License ID No.: 32901 Our File Number: G98-0156 Dear Mr. Gronbeck: Telephon¢: 671266.8�10 Fa1simile 67219&5619 Please take notice that a hearing will be held at the following time, date and piace concerning ail licenses for the premises stated above: Date: Tuesday, June 9,1998 Time: 9:30 a.m. Place: Room 42 St. Paul City Hall 15 W. Kellogg Blvd. St. Paul, MN. 55102 The hearing wiil be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: l�ame: Barbara Neiison Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN, 55401 Telephone: 341-7604 � ■ _ d/b/a R & R Books _, City's Exh. # 4 � � � • • y�-?�3 The Council of the City of Saint Paul has the authority to provide for hearings conceming licensed pretnises and for adverse action against such licenses, under Chapter 310, inciuding sections 310.05 and 310.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non- into�cating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action against all the licenses held at the above premises as follows: On or about April 6, 1998, an employee of the licensed establishment sold sexually eaplicit material to a minor. This is a violafion of Minn. Stat. § 617.293 subd. l(a) and subd. l(b), and Saint Paul Legislative Code § 276.02(a). The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrafive Law 7udge will have all parties idenfify themseives for the record. The City will then present its witnesses and evidence, each of whom the licensee or attorney may cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the Ciry's attomey may cross-examine. The Administrative Law Judge may in addition heaz relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding azguments may be made by the parties. Following the hearing, the Judge will prepaze Findings of Fact, Conclusions of Law, and a specific recommendation for ac6on to be taken by the City Council. You should bring to the hearing all documents, records and wimesses you will or may need to support your position. Subpoenas may be availabie to compel the attendance of witnesses or the production of docuxnents in confomuty with Minnesota Rules, part 1400.7000. If you think that this matter can be resolved or settled without a formal hearing, please contact or have your attomey contact the undersigned. If a stipulation or agreement can be reached as to the facts, that stipulation will be presented to the Admiuistrative Law Judge for incorQoration into his or her recommendarion for Council action. If the licensee or their legal representative faiis to appeaz at the hearing, the licensee's ability to challenge the allegations will be forfeited and the allegations against them which have been stated eazlier in this notice may be taken as hue. If non-public data is received into evidence at the hearing, it may become public unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. Notice of Hearing - Page 2 - � ' � � `�`�" If you have any questions, you can call me at 266-8710. Very truly yours, � �- ' .�c, �` l•� C�.. r�l �j � Vuginia D. Palmer Assistant City Attomey cc: Nancy Thomas, Office of Aduiinish-ative Hearings, 100 Washington Square, Suite 170Q Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Peggy Byrne, Exec. Director, Sununit-University Planning Council, 627 Selby Ave., St. Paul, MN 55104 Notice of Hearing - Page 3 r� � STATE OF MINNESOTA COUNTY OF RAMSEY ss. � (`�-?�e3 AFFIDAVIT OF S13RVICE BY MAIL JOANNE G. CLEMENTS, being Eirst duly sworn, deposes and says that on May 8, 1998, she served the attached NOTICE OF HEARING on the following named attorney by placing a true and correct copy thereof in an envelope addressed as follows: Mr. David Gronbeck Law Offices 701 Fourth Avenue Suite 1700 Minneapolis, MN. South 55415 (which is the last known address of said attorney) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and this 8th � Notary Publ to before me PETER P.PANGBQRN OTARY OUBUC - MINNESOTA ' QDrmt Expires Jan. 31. ZOq '/- OFFICE OF LtCENS$ INSPECTTONS AND ENVIRONMENTAL pROTECi10N RnbatKurkr,Dtreator �� '��--��--��.........:::...�...��' CITY OF SAIIVT PALJL !A[iRYPROF£SSlONALBUII�ING Te[ephone: 612-2659090 ,{�' NarmCokmcn,Mayor Su1te300 Facsimik: 61b246-9099 I�I 350St PuoSveU 612-2669I2!" Sai�uPau(�nnerom 55102-ISIO I hereby give my pemussion for my son/daughter Yn �o participate in compliance check with Saint Paul License Enforce nt and the Saint Paui Police Department. H'is/Her date of birth is � c� �'�- . P �'�2 3 g� Signature Date �n e . e icen s — d/b/a R & R Books � City's Ezh. # 5 — May 27, 1998 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Sude 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Kel4ogg Boulevard St. Paul, MN 55102 g�� RE: In the Matter of All Licenses Held by Jill D. Rasmuson, d/b/a R& R Books for the Premises Located at 674 Universiry Avenue West in St. Paul, License ID No. 32901; OAH Docket No. 11-2111-11700-3 Dear Ms. Palmer: Pursuant to the May 21� written request of Peter Pangborn, enclosed is an original and one copy of a subpoena issued to Sergeant Richard Wachal regarding the above-entitled matter. Sincerely, �, ,_—_-� a Ci LS n�-� �� C� LaVon Regan Legal Secretary Telephone: 612/341-7448 Ir Prowdi�g Impartial Heanngs for Government and Ciitizzens An Equal Oppo E mployer Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 �/�� - �... STATE OF MINNESOTA OFFICE OF ADMIl�iISTRATIVE HEARINGS ;;�."� HEARIIVG S[IBPOENA TO: Sergeant Richard Wachal, St. Paul Police Department 100 East 11�' Street, St. Paul, MN 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Administrative Law Judge Barbara L. Neilson of the Office of Administrative Hearings of the State of Minnesota, at St, Paul City Hall, Room 42, 15 West Keilogg Boulevard, in the City of St. Paul, Ramsey County, Minnesota, on the 9th day of June, 1998 at 9:30 o'clock in the forenoon, to appear as a witness in the matter of: All Licenses Held by Ji�l D. Rasmuson. d/b/a R& R Books for the Premises Located at 674 University Avenue West. St. Paul• License No. 32901: OAH Docket No. 11-2111-11700-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chief Administrative Law Judge, at Minneapolis, Minnesota this 27th day of May, 1998. cs, KEN� ETH A. NIGKOLAI Chief Administrative Law Jud e 612/341-7600 Subpoena requested by: vrginia Palmer, 612/266-8776 9$ STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARIlVGS HEAItING Si7BPOENA � *'i'a,"s+ TO: Sergeant Richard Wachal, St. Paul Police Department 100 East 11�' Street, St. Paul, MN 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Administrative Law Judge Barbara L. Neilson of the Office of Administrative Hearings of the State of Minnesota, at St, Paul City Hall, Room 42, 15 West Kellogg Boulevard, in the City of St. Paul, Ramsey County, Minnesota, on ihe 9th day of June, 1998 at 9:30 o'clock in the forenoon, to appear as a witness in the matter of: All Licenses Held bv Jiil D. Rasmuson. d/b/a R& R Books for the Premises Located at 674 Universitv Avenue West. St. Pauh License No. 32901: OAH Docket No._11-2111-11700-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chief Administrative Law Judge, at Minneapolis, Minnesota this 27th day of May, 1998. Gs, � KEN� ETH A. NICKOLAI Chief Administrative Law Jud e 612l341-7600 Subpoena requested by: Virginia Palmer, 612/266-8776 OFFICE OFTHE CITYATTORNEY PegBtrJFCityAttorney ��_�� CITY OF SAINT PAUL � - � _' ��` ` `"' Norm Coleman, Mayor �i ,�, ts p, *� � t+- f• rt .:.l�n, /? F;� �:i" US .-. -.�:'�rl ��'vL ��._Y:IVIi'�� May 21, 1998 Judge Bazbara Neilson c/o Louise Cooper Office of Aduiinistrative Heazings 100 Washington Square, Suite 1700 Minneapolis, Minnesota 55401-2138 Civi1 Divirion 400 Ciry Hall IS West KellaggBlvd Saint Paul, Minnesom 55102 Telephone: 612 266-8710 Facsimile: 672 298-5619 VIA FAX AND U.S. MAIL RE: Licenses held by Jill D. Rasmuson d/b/a R& R Books for the premises located at 674 University Ave. W. in Saint Paul Our File Number G98-0156 Deaz Judge Neilson: The purpose of this letter is to request a subpoena pursuant to Minnesota Rules, part 1400.7000 relating to the above-mentioned contested case hearing that is scheduled to be heard befare you on Tuesday, June 9, 1998. This request is made of behalf of Ms. Virginia Palmer, the attorney assigned to this matter. The City of St. Paul licensing division will be calling this witness to testify regazding the incident which serves as a basis for the action against the licenses of Jill D. Rasmuson d/b/a R& R Books. In order to ensure this individual will be in attendance to testify, the City of St. Paul requests from the State Office of Administrative Hearings a subpoena for the following individual: 1. Sergeant Richard Wachal Saint Paul Police Department 100 East 11�' Street Saint Paul, Minnesota 55101 Page 1 9�-��3 The hearing is scheduled to start at 9:30 a.m. on Tuesday, June 9, 1998, in Room 42, St. Paul City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102. If you need additional information or have any questions regazding this request, please do not hesitate to call me at 266-8776. Thank you for your consideration in this matter. Sincerely / / Peter P. Pangborn Pazalegal Page 2 OFFICE OF THE CITY ATTORNSY 4 Peg Bi�k, Crry Attorney OF SAINT PAUL leman, Mayor �� M lVL La %� Mi �\'N Dea Plet lice� The. Offic N U p a r N ✓ iJ � O iA � F� O C� � I--'� O �'h \ � � O � O � m ��r c�o tv p� m o zs m � td O �" O I-° Sv 1—' F'� � tn �$ F'� � N CY � � � �] �$ O � O W z��roz • U. V• (D (D � � �$ W � ci' F-' vt �-�$ f� O r N cr � O � i-'• � c m co µx �m m � F' V• � � O Q4 o � _ _ „;. _.,.�V`f �E� 7J �it�i � � �Y,I�l i't�i� � � � � I � o O S 'T1 m � n � � � � � O [ � '` r Civi1 Divisiort 400 Cuy Ha11 IS W¢st X¢[[agg Blvd nt¢ SSIO2 O �n O � ^ O '� � � � a � �2 �= x �� a 2 � {�e � .�^. = o i o � = J N � � a. Z � 0 A � Telephonc 671266$710 Faaimi[e: 6I2 29&5619 date and place concerning all . � � '" --,� `'.�! , ! V ` � \� i e �� ' ' � �*+»" . ��,, �-��*�� INa from the State of Minnesota � yg �� The Council of the City of Saint Paul has the authority to provide for hearings conceming licensed premises and for adverse action against such licenses, under Chapter 310, including sections 310.05 and 310.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non- intoaficating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penaities or conditions. Evidence will be�presented to the judge which may lead to adverse action against a11 the licenses held at the above premises as follows: On or about April 6, 1998, an employee of the licensed establishment sold segually eaplicit material to a minor. This is a violation of Minn. Stat. § 617.293 subd. l(a) and subd. 1(b), and Saint Paul Legislative Code § 276.02(a). The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Admiiustrative Law Judge wiil have all parties identify themselves for the record. The City will then present its witnesses and evidence, each of whom the licensee or attorney may , cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the City's attorney may cross-examine. The Administrative Law Judge may in addition heaz relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding arguments may be made by the parties. Following the hearing, the Judge will prepaze Findings of Fact, Conclusions of Law, and a specific recommendation for action to be taken by the City Council. You should bring to the hearing all documents, records and witnesses you will or may need to support your position. Subpoenas may be available to compel the attendance of witnesses or the production of docuxnents in conformity with Minnesota Rules, part 1400.7000. if you think that this matter can be resolved or settled without a formal hearing, please contact or have your attorney contact the undersigned. If a stipulation or agreement can be reached as to the facts, that stipulafion will be presented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. If the licensee or their legai representative fails to appear at the hearing, the licensee's ability to challenge the allegarions wiil be forfeited and the allegations against them which have been stated earlier in this notice may be taken as true. If non-public data is received into evidence at the hearing, it may become pubiic unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. Notice of Hearing - Page 2 If you have any questions, you can calI me at 266-8710. ��✓ `"'� Very truly yours, � I .✓v✓.�J �, Vuginia D. Palmer Assistant City Attorney cc: Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Peggy Byrne, Exec. Director, Summit-University Planning Council, 627 Selby Ave., St. PauI, MN 55104 . Notice of Hearing - Page 3 O (� n '"� � � � O s 'z7 m � � � -3 � � � � ro m � �r t+ �+ p c r + hy Y i�i Fv ;�v�NO z Y� � O �h W � c � N c�i N N � O �, 4v S+� N KS F-� m �3 O 1 �' O �' i-' O k-'� F O 4-'• O � � � � � � O � � � � . � N. � � V� P� �$ vi � w � N ct O F-w F-� � N x m w � �• � � � m � i . n u o =�n a � � � �. � R z�� 0 a n o � _ N A � A x O A � � � r� i � ` �� n -. .q � r ' i .... �:::�� .. � �,.� � u. x ��Ofi � ., .<, �� -� 1`+a Peg 8,'r'{ C,�e�� dur.m.ey ,• � , . � . . . ' w `y ^ � — � � — � �7 A— !__W.� �. cITY OF SATNT PaUL �N,r ��,s�� ; .NormCofrman,Maya� OODCrryHali . Teiepnoa6 !SWestAeflohgBhd Farsimile; 6727A8-SGJ9% S¢int Pavl. ,41m�soM SSiD2 ; i j ' i ' � FAX TRANSMISSION i DATE: April 2, 9988 TO: Judge Babara Neilson clo Lauise Cooper Office otAdministrative Hearings NUMBER OF PACyES (including cover p2ge): 3 FROM: Peter Pangpom Paralegal St. Paui Gity Attorney's Office 4D0 City Hail � � FAX No.: 349�2665 � � � � , FAX No.: 298-5619 �, If you do not receive all pages ot7his fransmisaion, please contacT: Peter Pangbom Telsphone No. 285-8776 � i i i0'd S99Z6bz6 O1 i i I i i i t � � � 3�I��0 SJ,�NJOl1C .11IJ WO?J� zz�6e 8661—Z2—.lCW vrrtt,� vr tnc t,tl i H.� i vru��z i Peg 8nk, Qry Aeomey n ! f �� 7�.�J ' CTTY OF SAINT PAUL �NOIm (�OtEnlah, Mayor May 2l, 1998 Ctvf! DIvls:on 400 Qry Hall l5 wesf KeUoggBf�d. 6atrt7 Poul, �nnesom 55101 . 7 fephone: 672166-8%!�1 Facsimfte: 612 29F-5619� VIA FAX AND I1.S. MAIY. Judge Bazbara Iveilson c/o Louise Cooper Office ofAdministrative I-Iearings 100 Washington Square, Suite 1700 Minneapolis, Minnesota 55401-2138 12E: Licenses held by Sill D. Rasmuson d/b/a R& R Books for the premises lo�ated a4 674 Univer5ity Ave. W. in 5aint P2u1 pur File Number G98-0156 Deaz Judge Neilson: T7te purpose of this letter is to request a subpoena pursuant to Minnesota Rules, part 140p.7000 relating ta the above-mentioned contested case hezring that is scheduled to be heat'd before you on Tuesday, June 9, 1998. T1us request is made of behalf of Ms. Vzrgznia Palmer; the attomey assi�ned to this matter. The City of St. Paul licensing division tvi11 be calling this �vitness to tesfify reguding the incident which serves as a basi5 for the action against the licenses of 7i11 D. Rasmuson d/b/a R& R Baoks. � In ordez to ensure this individua] will be in attendazlce to testify, the City df St. Paul requests from the State Off'ice of Adzziinistrative Hearings a subpoena for the followzng individual: , 1. Sergeant Riekard W achal Saint Pau1 Police r7epartmet�t 100 EaSt �1` Street Saint Paui, iVIinnesota 55101 ze'd S99Z65E6 Ol i Page 1 � l I , i 3JI��0 S.I�Nb�11C J,1IJ W02i� £Z:60 866ti-ZZ-1,tiW ; � 9� �� ; � The hearing is scneduled to start at 9:30 a.rn. on Tuesday, June 9, 1948, in Roos 42, St. Paul City Hall, 15 West Keliogg Boulev2rd, St. Paul, vIN 55102. 1 i Ii you need additional infomaation or l�ave any questions regarding this request, pt�ase do not hesitate to call me at 266-8'776. "I'hank you for your consideration in this matter_ ' Sincerely Peter P. Pangborn Paraiegal , I � � � � Pa�e 2 F0'd S99Z67�6 Ol 3JI��0 SJ,3Nb011b'.11I� WOa� � i i. � �, �Z:60 866L-1Z-.ltiW MAY.-21'98(THU) 10�25 TRANSACTION REPORT Reception Transaction(s) completed OFFICE OF ADM[N.HEARING TEL:6123492663 NO. TX DATE/TIME DESTINATION DURATION PGS. REStiLT MODE 859 MAY.21 30:23 612 296 5619 �°O1'13' 003 OK N ECM P. 001 � SEP 26 199� Green Sheet # ORIG��AL puAt{suFn Council File # Ordinance # gfJ — �� Presented By ORDINANCE OF SAINT P L, MINNESOTA -� S( q ? Z- 30 Referred To Committee: Date An ordinance amending Chapter 60 of the Saint Paul Legislative Code pertainiug to zoning for the City of Saint Paul and the zoning maps thereo£ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 WFIEREAS, Pursuant to Minnesota Statutes §462357 and §64.400 of the Legislative Code, CHILDREN'S HEALTH CARE duly petitioned to rezone 233 GRAND AVENUE being legally described as Part of Block 68 SELY of Hwy & WLY of a line desc as com at SE cor of Metcalf & Wilder's Subdivision th W along N L of Grand Avenue for 138.5 ft to pt of beg; th N 0° 11'2" W for 206.8 ft th N 31 °29'2" W to Hwy & there term; Dayton & Irvine's Addition AND Vac St accruing & part of Blk 68 Dayton & Irvine's Add. SELY of Hwy & ELY of a line desc as com at SE cor of Metcalf & Wilder's Subdivision th W along NW Grand Avenue for 138.5 ft to beg th N 0° 11'2" W for 206.81 ft th N 31 °29'2" W to Hwy & there term & also all of Metcalf & Wilder's Subdivision from B-3 to B-5 to a11ow the entire hospital campus to be in the same zoning district, the petition having been certified by the Planning Division on May 13, 1998 as having been consented to by at least sixty-seven percent of the owners of the area to be rezoned, and further having been consented to by at least two-thirds of the owners of the property situated within 100 feet of the total contiguous property within one year preceding the date of the petition; and WI�EREA5, the Zoning Committee of the Planning Commission held a public heazing on June 18, 1998 for the purpose of considering the rezoning petition, and pursuant to § 107.03 of the Administrative Code, submitted its recommendation to the Planning Comxnission that the petition be granted; and WHEREAS, the Planning Commission considered the rezoning petition at its meeting heid on June 26, 1998, and recommended that the City Council approve the petition; and WFIEREAS, notice of public hearing before the City Council on said rezoning petition was duly published in the official newspaper of the City on June 6, 1998, and notices were duly mailed to each owner of affected property sihzated wholly or partly within 350 feet of the properiy sought to be rezoned; and WHEREAS, a public hearing before the City Councii having been conducted on 7uly 22, 1998, at which all interested parties were given an opportunity to be heard, the Council having considered all the facts and recommendations concerning the petition; now, therefore THE COUNCIL OF THE CITY OF SA1NT PALTL DOES ORDAIN: Section 1. 36 That the zoning map of the City of Saint Paul, Sheet Number 20 as incorporated by reference in §60301 of 37 the Saint Paul Legislative Code, as amended, is hereby fiuther amended as follows: 38 39 40 41 42 43 44 45 46 y'�' - �- 63 That the property at 233 GRAND AVENLJE, being more particularly described as: Part of Block 68 SELY of Hwy & WLY of a line desc as com at SE cor of Metcalf & Wilder's Subdivision th W along N L of Grand Avenue for 138.5 ft to pt of beg; th N 0° 11'2" W for 206.8 ft th N 31 °29'2" W to Hwy & there term; Dayton & Irvine's Addition AND Vac St accruing & part of Blk 68 Dayton & Irvine's Add. SELY of Hwy & ELY of a line desc as com at SE cor of Metcalf & Wilder's Subdivision th W along NW Grand Avenue for 138.5 ft to beg th N 0° 11'2" W for 206.81 ft th N 31 °29'2" W to Hwy & there term & also a11 of Metcalf & Wilder's Subdivision 47 48 be and is hereby rezoned from B-3 to B-5. 49 50 51 Section 2. 52 This ordinance sha11 take effect and be in force thirry (3�) days from and after its passage, approval and 53 publication. oRiG��at Requested by Departme f: Plannin & omic Develo ment By: Adoption Certified by Council Secretary By: � � 9" � � , Approved by Mayor: D te By: Form Approv By: Approved by By' Adop*_e3 ?�y Cour.c:l: Date� � i�r� \ �N° 51972 '� /.16� 21 � UEWJRMET7� (CqUNCiI � OATE INITIATEO , v / v �� p�D Se�+.�%�cs.t" "1'�i�-+ j 2��9� GREEN SHEET CONTACT PERSON B PH0�1E � O DEPARTMENT D�RELTO �NITIA�ATE � qTV COUNQL INITIAV�ATE ��a �� Z� �JS ( Z ASSiG1G � CITV ATiORNEY �j' Q C1TY CLER% NUNBERFOH ThUST BE ON CAUNCIL AGENDA 8Y (DAT q�� BUDGET DIPECTOR O FIN. 8 MGi SEAVICES DIR. RS SOOYI QS O� �/ `i� OFOER � MAYOFl (OF ASSI$ O TOTAL # OF SIGNATURE PAGES � (CIIP ALL LOCATIONS FOR SI TURE) ��i4c(a�t a,r� a-dl�e fr� �•�ir�e rows�i� ��;� .�� __, oF' CLrifct�e�-i�' �f�7� Q?�' -fa ,^e,�one �r� �or�,#tr�.�t z33 �c�l �� UF 8-3 {� B s ('Nu6k�. �.�„ �,.�� .s�a Za, r��s� RECOMMENDATIONS: ADP�o�e (A) m Rsject (R) pERSONAL SERVICE CONTRACTS MUST ANSWER THE FOILOWING QUESTIONS: _ PtANNING CAMMISSION .__ CIVI� SERVIqE CAMMISSION �- Has this persoNfirm ever worketl under a contraM for this department? _. CIB CAMM[TTEE _ YES NO ^ � A �� 2. Has Mis personttirm ever been a ciry employee? — VES NO — aSTq�T �R� — 3. Does this person/firm ossess a skill not nottnail p y possessetl by a�y current ciry employee'+ SUPP6qTSWNICNCOUNCfLOB.IECTIVE+ YES NO Explal� all yec answera o� sepprate aheet e�E pttaeh to green sheet INRIATING PROBIEM, ISSUE. OPPORTUNITV (Who. What. When. Where. Why) �i�aG'�e [srt.u.ce� l,�ra va.Q a� .t �oe.f-+`fien�C�I1�DR�'N S�C.7 C� �{a �^e�rre �.o�+�fi a-t 233 6�-A�ND �It/ elE ��, B-.3 -b r3 :� � a.�.Y ..� P.H�tire Grosp�fa.Q c�'•y�us �a l�e r� tP�e. �� oCc' , ADVANTA('iE5 IF APPROVED: � �' �V �u� 3 e lsse �tr��o��s o��sc� DISADVANTAGES IFAPPflOVEtr - y r �,„eat � ��SP,'�ff ��Z199� � DISADVANTAGES IF NOTAPPROVED' -'��il��l � . �c�':9e3 � �� TOTAL AMOUNT OF TRANSACTION $ COSi/REVENUE BUDGETED (CIHCLE ONE) YES NO FUNDING SOURCE ACTIVITY NUMBER FINANCl0.L INFOR6nATfON� (E%PIAW� OFFICE OF THE CITY ATTORNEY �/ Clayton M. Robinson, lr., City Aflorney 98 ` ��D 3 3�. CITY OF SA1NT PAUL A'orm Colenrun, !Ila��or Civi[Division 400 Ciry HaU IS Werf Ke7logg BPod Saint Pau� Minnesota SSIO2 Telephone: 651 266-8710 Facsimile: 65719&5619 Auwst 12, 1998 \OTICE OF COUN Mr. David Gronbeck Attorney at Law Gronbeck Law Office Suite 1710, One Financial Plaza Minneapolis, Minnesota »402 �1 � �� I ju:i ';.�_._�_ : .. �. _�. f�� $� 1G(gg� Re: Licenses held by 3ill D. Rasmuson dlb/a R& R Books for the premises located at 674 University Ave. W. in St. Paul Our File Number: G98-0156 Deaz Mr. Gronbeck: Please take notice that a hearing on the report of the Administrafive Law Judge conceming the above-mentioned license has been scheduled for 5:30 p.m., Wednesday, August 26,1998, in the City Council Chambers, Third Floor, Saint Pau1 City Hal1 and Ramsey County Courthouse. You have the opportuniry to file exceprions to the report with the City Clerk at any time during normal business hours. You may also present oral or written argument to the council at the Hearing. No new evidence �� ill be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Administrative Law Judge and on the arguments made and exceptions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its }udgement and discretion. Sincerely, � �� Virginia . Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Community Organizer District 8, Su�umit-University Planning Council, 627 Selby Ave., St_ Pau1, MN 55104 9�-7�� 11-2111-11700-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATNE HEARINGS FOR THE CIN OF ST. PAUL In the Matter of All Licenses Heid by Jill Rasmuson, d/b/a R& R Books for the Premises Located at 674 University Avenue West in Saint Paui License 6D No. 32901 FINDINGS OF FACT. CONCLUSIONS AND RECOMMENDATION The above-entitled matter came on for hearing before Administrative Law Judge Barbara L. Neilson on June 9, 1998, at 9:30 a.m. in Room 42 of the Saint Paul City Haii. Vrginia D. Palmer, Assistant Ciry Attomey, 400 City Nall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102, appeared on behalf of the Office of License, Inspections and Environmental Protection of the City of Saint Paul ("the Cit�'). David Gronbeck, Attorney at Law, Gronbeck Law Office, Suite 1710, �ne Financial Plaza, Minneapolis, Minnesota 55402, appeared on behalf of the Licensee, Jifl Rasmuson, d/b/a R& R Books. The record in this matter closed at the conclusion of the hearing on June 9, 1998. This Report is a recommendation, not a final decision. The Saint Paul City Council will make the final decision after a review of the record. The City Council may adopt, reject or modify the Findings of Fact, Conclusions and Recommendations contained herein. Pursuant to Saint Paul Legislative Code section 310.05(c-1), the City Council shall provide an opportunity to present oral or written argument alleging error in this Report and to present argument related to any adverse action recommended in this Report. The parties should contact the City Clerk to ascertain the procedure for filing such argumenf or appearing before the Council. STATEMENT OF ISSUES The issue presented in this matter is whether or not an employee of R& R Books sold sexually expficit material to a minor in violation of Minn. Stat. § 617.293, subds. 1(aj and (b), and Saint Paul Legislative Code § 276.02(a) and, if so, whether adverse action should be taken against fhe licenses held by Jill Rasmuson d/b/a R& R Books. Based on all of the proceedings herein, the Administrative Law .ludge makes the following: �8 ��3 F1NDiNGS OF FACT 1. The Respondent, Jill Rasmuson, owns and operates R& R Books, an adult bookstore located at 674 University Avenue West, Saint Paul. Ms. Rasmuson's husband, Richard S. Rasmuson, Jr., assists wfth the day-to-day operations of the bookstore. 2. Ms. Rasmuson holds mechanical amusement device machine and mechanical amusement device operator licenses from fhe City of Saint Paui for use at R& R Books. These licenses will expire on Ocfober 39, 1998. Ex. 1. 3. There is a sign on the front door of R& R Books indicating that persons must be 21 or older and have an ID in order to enter the store. Even though persons who are 18 can legally be in the store, Mr. Rasmuson spec�ed 21 on the sign because he did not �vant any kids to have contact with the materials. Mr. Rasmuson instructs clerks in the store ta check a customer's ID if the customer looks younger than 21 years of age. If the customer looks over 21, the clerk is given discretion whether or not to check the individuai's ID. . 4. During the spring of 1998, the City's Office of License, Inspections and Environmental Protection was interested in the issue of the location of "adult uses" in the City. On approximately March 23, 1998, the Office sent a letter to adult bookstores indicating that relocation of their premises may be necessary under an ordinance that had been recently adopted. 5. In April, 1998, the City received a complaint regarding an adult bookstore other than R& R Books selling materials to a minor. As part of its investigation of the complaint, the City decided to conduct a compliance check to determine if employees would check for identification of a minor or sell a minor an item of a sexually explicit nature. R& R Books was selected at random for inciusion in the compliance check. There is no evidence that the City ever received any previous complaints alleging that R& R Books had sold sexualiy explicit material to a minor. 6. Compliance checks are also conducted by the City in stores selling fiquor and tobacco products. The City has only infrequentiy conducted compliance checks with respect to adult businesses. 7. The City conducted complia�ce checks with respect to R& R Books and four other adult businesses on April 3, 1998. Prior to conducting the compliance checks, Kristina Schweinler, a senior investigator with the City's License Inspection and Environmental Protection Office, located a minar to serve as a decoy. She obtained the written permission of the boy's parent to participate in the compiiance checks. The boy's mother verified to Ms. Schweinler that the boy was bom on August 3, 1982, and thus was 15 years old. Ex. 5. ►n addition, Ms. Schweinfer personally knew the boy and was familiar with his age. 8. Ms. Schweinier and Sgt. Richard Wachai and Officer Felicia Reilly of the St. Paul Police Department met with the boy in police headquarters on April 3, 1998, before 2 y�-7�3 the compiiance checks were conducied. A general search was conducted of the boy to confirm that he was not in possession of any sexually explicit material, extra cash, or a false ID. They fhen gave the boy money fo purchase the materials and took him to the locations in question. 9. At approximately 4:00 p.m. on Aprii 3, 1998, the boy went into R& R Books. Sgt. Wachal followed him in shortly thereafter. The boy did not use any of the machines in R& R Books that are licensed by the City. He selected a movie called "Our Bang ... An Orgy in Every Box° and a two-pack of magazines sealed in plastic entitled "Adam and RaideT and took them to the clerk behind the counter. The cler{c without Mesitation rang up the purchase without asking the boy for an lD, piaced the items in a bag, took the maney from the boy, and gave the items to him. The boy then left the store and went to the car where Offlcer Reilly and Ms. Schweinler were wa+fing. Ex. 2. 10. Sgt. Wachal, O�cer Reifly, and Ms. Schweinler then went into R& R Books to confront the cashier. The boy remai�ed in the car. Sgt. Wachal displayed his badge and ident�ed himself as a Saint Paul Police Department sergeant in the Vice Unit. The ' cashier, Calvin Dirl, said, "{Ys my fau{t" and admitted that he did not check the boy's ID. He said that he had been working at R& R Baoks for ten years. Ex. 2. He aiso said that he was sick and needed to go to the doctor and was going to undergo a lung reduction. Mr. Dirl beiieved that the boy looked at least 25 years old. 11. The magazines and the video purchased by the boy contained sexually explicit materiat. The magazines purchased by the boy contained numerous photographs of nude men and women in intercourse positions, but did not show actual penetration. The ten- minute video showed nude men and women engaging in sexual intercourse, oral sex, mutual masturbation, sexual intercourse with multiple partners, and other sexual conduct. 12. By letter dated April 17, 1998, the Respondent was notified that the Director of the City's Office of License, Inspections, and Environmentai Protection was recommending that adverse action be taken against the licenses held by Ms. Rasmuson d/b/a R& R Books because sexually ekplicit material had been sold to a minor on or about April 6[sic], 1998. 7he fetter informed th2 Respondent of ifs right to request an evidentiary hearing before an Administrative Law Judge. Ex. 3. 13. The Respondent submitted a timely request for hearing, and this proceeding was commenced. Ex. 4. 14. The Director of the City's Office of License, Inspections, and Environmental Protection has recommended a fine of $500 for R& R Books' alleged violation of state law and city ordinance. The amount of the fine is based upon a matrix set forth in Section 40926 of the Saint Paul Legislative Gode which establishes presumptive penalties for liquor violations based upon the square footage of the business invoNed in the violation. The City has not established a specific matrix applicab{e to violations involving adult bookstores. 3 y�-�6� 15. Criminal charges are pending against the R 8� R Books cferic who sold the materials to the boy. As of the date of the hearing, there had been no disposition of fhe charges. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the fo(lowing_ CONCLUSIONS 1. The Saint Paul Cify Council and the Administrafive Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.55 and 340A.415 and Saint Paul Legislative Code §§ 310.05 and 310.06. 2. The Notice of Hearing issued by the City was proper and all applicable substantive and procedural requirements have been fulfilled. 3. The City bears the burden in this matter of proving by a preponderance of the evidence that adverse action is warranted with respect to the mechanicai amusement device and operato�'s {icenses at issue. 4. Chapter 310 of the Saint Paul Legislative Code contains general provisions relating to licenses issued by the City. Section 31�.�6(b)(6) provides that adverse action may be taken against any or all licenses or permits held by a licensee where the licensee (or a person whose conduct may by law be imputed to the licensee) "has violated, or pertormed any act which is a viofation of, any of the provisions of these chapters or of any statute, ordinance or regulation reasonably related to the ficensed activity, regardless of whether criminal charges have or have not been brought in connection therewith.° Section 310.17 provides that "[ajny act or conduct by any clerk, employee, manager or agent of a licensee ... which act or conduct takes piace .._ on the licensed premises .., and which act or conduct violates any state or federal statutes or regulations, or any city ordinance, shail be considered to be and treated as the act or conduct of the licensee for the purpose of adverse action against ali or any of the licenses held by such licensee." "Adverse action" is defined in sections 310.01 and 310.05(I) of the Saint Paul Legislatn;e Code to include the imposition of a fine. 5. Minn. Stat. § 617.293, subd. 1(1996), provides that it is "unlawful for any person knowingiy to sell or loan for monetary consideration to a minor: (a) [a]ny ... motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors, or (b) (a]ny ... magazine ... which contains any matter enumerafed in clause (a) ...." Section 276.02 of the Saint Paul Legislative Code corrtains the same prohibition as Minn. Stat. § 617.293. "Nudity" is defined in both the statute and the Saint Paul Legislative Code to mean "the showing of the human male or female genitals° with less than a fully opaque covering. Minn. Stat. § 617.292, subd. 3; Saint Paul Legislative Code § 276.01. "Sexual conduct" is defined in both to include "acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's unclothed a 9a-�b3 genitals ...°' The phrase "harmfui to minors" is defined in Minn. Stat. § 617.292, subd. 7, as foilows: `Harmful to minors" means that quality of any description or represenfation, in whafever form, of nudity, sexual conduct, sexuai excitement, or sadomasochistic abuse, when it (1) predominantly appeals to the prurient, shamefu{ or morbid interest of minors, and (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (3) is utterly without redeeming social importance for minors. Section 276.01 of the Saint n Paul Legislative Code includes substantially the same definition of "harmful to minors. Finaily, the term "knowingly" is defined in the statute to mean "having ge�eral knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry or both ...(1) the character and confent of any material which is reasonably susceptible of examination by the defendant, and (2) the age of the minor, provided however that an honest mistake shall constitute an excuse from liability hereunder if the made a reasonabie bona fide attempt to ascertain the true age of such minor. . 6. In addition, section 276.03 of the Saint Paul Legislative Code provides that a person who engaged in conduct prohibited by section 276.02 "is presumed to do so with knowledge of the character and content of the material sold ..., or the motion picture ... fo be exhibited" and that it is an affirmative defense in a prosecution for disseminating harmful materials to minors that "[t]he defendant had reasonable cause to believe that the minor involved had reached his or her eighteenth birthday" and the minor "exhibited to the defendant a draft card, driver's license, birth certificate or other o�cial or apparently official document purporting to establish that such minor had reached his or her eighteenth birthday,"� 7. The City has established by a preponderance of the evidence that a clerk at R& R Books sold magazines and a video to an individual under eighteen years of age ' Minn. Stat § 617.292, subd. 4; Saint Paul Legislative Code § 276.01. z The onty d'rfferences between the statutory and Code provisions is that the Code refers in item (1) to a depiction which, °[t)aken as a whole, predominantiy appeats to the prurient interest in sex of minors' and in item (3) io a depiction which, "[tjaken as a whole, lacks serious literery, artistic, potitical or scientific vafue for a legitimate minority of older, normal minors." 3 Minn. Stat § 617.2g2, subd. 8. The Saint Paul Legislative Code does not define "knowingly.^ " There is no similar provision in Minn. Stat §§ 61 7.291-617.296. 5 g� 7b � without requesting proof that the individual had reached his eighteenth birthday. R& R Books is a"totally adulY' bookstore, and there is no claim by R& R Books that fhe clerk who soid the materials to the minor lacked knowledge of the character and content of the magazines or video. The magazines and video purchased by the minor at R& R Books contained photographs and motion pictures depicting nudiiy and sexual conduct within the meaning of Minn. Stat § 617.293 and section 276.02 of the Saint Paul Legislative Code. Based upon the testimony of the St. Paul police sergeant who reviewed the materials conceming their content, it is evident that the materials predominantly appealed to prurient interests, were patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, lacked serious literary, artistic, political or scientific value, and lacked redeeming social importance for minors. The Licensee did not make any argument to the contrary. Therefore, the City has shown by a preponderance of the evidence that the materials w�re "harmful to minors" within the meaning of Minn. Stat. § 617.293 and section 276.02 of the Saint Paul Legislative Code. 8. The foregoing Concfusions are made for the reasons set forth in the attached Memorandum, which is hereby incorporated in these Conclusions by reference. Based upon the foregoing Conclusions, the Administrative Law Judge makes the foltowing: RECOMMENDATION IT IS HEREBY RESPECTFULLY RECOMMENDED: that the Saint Paul City Council take adverse action against the licenses held by Jill Rasmuson d/b/a R& R Books. Dated this �� day of July, 1998 �,,..�..,._.- �. � i �� BARBARA L. NEILSON Administrative Law Judge NOTICE The City is respectFully requested to provide a copy of its final decision to the Administrative Law Judge by first class mail. Reported: Tape recorded (not transcribed). MEMORAIVDUM Based upon the record in this case, it is evident that the clerk at R& R Books sold sexualfy exp{icit material to a 15-year-o4d decoy on April 3, 1998, without checking the boy's identification card. The City's witnesses indicated that the decoy had been promised confidentiality and, for that reason, the Ciry did not cal! the boy as a witness or introduce a 0 �- ��3 picture of him info evidence. This failure is not fafal to the City's case. Sufficient proof of the decoy's age was provided by the City through the festimony of Sgt. Wachal and Ms. Schweinler conceming the boy's date of birth as refayed by his mother, the written permission slip signed by the mother providing the date of birth, and Ms. Schweinler's personal knowledge of the boy and his age. Although the statute and ordinance at issue proscribe "knowing° sales fo minors and the clerk testified that he believed that the boy looked at least 25 years oid, the statute and ordinance only excuse honest mistakes as to a person's age if the cusfomets ID was checked or some other reasonable attempt was made to determine the true age of the customer. That did not happen in the present case. The clerk had sufficient general knowledge of the decoy's age, based upon the boy's appearance. The clerk undoubtedly also had a general knowledge of the character and content of the material he was selling—he had worked at R& R Books, an aduit bookstore, for ten years. The City thus has shown by a preponderance of the evidence that the statute and ordinance were violated. Secause there is no alfegation that the minor operafed any of the mechanical amusement device machines for which the Licensee is licensed, the Licensee contends that it is inappropriate under the circumstances for the City to take adverse action against these licenses. This argument is not persuasive. Section 310.06(b)(6) of the Saint Paul Legislative Code expressly authorizes adverse action against "any or all licenses" held where the licensee (or a person whose conduct may by faw be imputed to the licensee) has "violated, or performed any act which is a violation of, any of the provisions of these chapters ...." The actions of the clerk are considered to be the actions of the Licensee pursuant to Section 310.17 of the Code. Accordingly, the clerk's viofation of Section 276.02 of the Saint Paul Legislafive Code prohibiting sales of sexual4y expficit materials to minors provides a sufficient basis for the imposition of discipline against the mechanical amusement device machine and mechanical amusement device operator licenses held by the Licensee. The Licensee further contends that the City improperly entrapped the clerk into committing the violation. She emphasizes that R& R Books does not have any history of complaints conceming sales to mincrs and thus argues fhat the Ciry cannot show that R& R Books was predisposed to sell sexually exp�icit materials to minors. As noted by the Court of Appeals in a recent case, "it is not clear whether the entrapment defense is available in administrafive proceedings." In any case, for the entrapment defense to be successfully asserted, the defendant must first show that the govemment induced the commission of the crime by doing something more than mere solicitation. If inducement is shown, the public aufhority must show beyond a reasonabie doubt that the defendant was predisposed to commit the crime.s 5 In 2 Pedley, 1993 WL 79588 (Minn. App. 1993) (unpublished). s Jacobson v. Unifed States, 112 S. Ct 1535 (1992); State v. Abraham, 335 N.W.2d 745, 747 (Minn. 1983); State v. Ford, 276 N.W.2d 178, 182 (Minn. 1979). 7 98-�63 The initial inducement element is established only by showing "something in the nature of persuasion, badgering, or pressure by the state."' The United Sfates Supreme Court has noted that "Ehe fact that officers or employees of the govemment merely afforded opportunfies or facii'�ies for the commission of the offense does not defeat the prosecu6on. Artifice and strategem may be employed to catch those engaged in criminal enterprises.°a The Licensee in the present case has not established that her clerk was induced by the City's decoy to commit the viofation. As in In re Pedlev, the decoy here "did no more than any young persan might do" in an attempt to obtain sexually explicit material, but "merely provided an opportun+ty for relators to make illegat sales." There is no evidence that the decoy in any way attempted to persuade, badger, or pressure the clerk into se{{ing the materials to him; in fact, it appeacs that he simply presented the materials at the counter for purchase and had no significant interchange with the clerk. Because the Licensee has not shown the requisite inducement, it is not necessary to reach the further issue of whether the City has shown beyond a reasonable doubt that the Licensee was predisposed to commit the crime. The Administrative Law Judge thus respectFully recommends that adverse action be taken against the licenses held by Jill Rasmuson d/b/a R& R Books. The fact that the Licensee has no history of violations should be faken into consideration in arriving at the penalty to be imposed, as should the fact that the clerk sincerely believed that the decoy was of legal age. The City has urged that a$500 fine be imposed, using (by analogy) the matrix set forth in Section 409.26 of the Saint Pauf Legislative Code applicable to liquor violations. The Judge urges the City Councit to consider whether a lesser fine is appropriate under the circumstances of this case. C;� ' Stafe v. Olkon, 299 N.W2d 89, 107 (Minn. 1980j, cert deoied, 449 U.S. 1132 (1981); see also State v. Abraham, 335 N.W.2d 745, 747 (Minn. 7983); and ln re Pedley, supra. e SorreOs v. United States, 287 U.S. 435 (1932). 9 In re Pedley, 19931NL 79588 (Minn. ApP. 1993). 10 Id. in addifion, there is no convincing evidence that the compliance checks were prried out in bad faith or were motivated by changes in City ordinances that witl possibly affect the tocation of `aduit uses° in the City. [? July 7, 1998 Fred Owusu, City Clerk 170 City Hali 15 West Kellogg Boulevard St. Paul, MN 551�2 RE: In the Matter of Afl Licenses Held by Jilf Rasmuson, d/b/a R& R Books for the Premises Located at 674 University Avenue West in Saint Paul; OAH Docket No. 11-2111-11700-3 Dear Mr. Owusu: Enclosed herewith and served upon you by mail is the Administrative Law Judge's Findings of Fact, Conclusions and Recommendation in the above- entitled matter. Also enclosed is the official record, with the exception of the tape recording of the hearing. If you wou{d like a copy of those tapes, please contact our o�ce in writing or telephone 341-7615. Our file in this matter is now being closed. � � • STATE OF MINNESOTA OFFiCE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite'1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 �� Fjy c, R� 9�-�� 3 c� � � . �`1��. � , L. NEILSON � tive Law Judge �: 612l341-7604 i'��'+,� BLN:Ir `�� Enclosures cc: Virginia C David Gn Providing Impartial Hearings for Government and Ci6zens An Equaf OppoAunity Employer Administrative Law Section & Administrative Services (612) 341-7600 e TDD No. (612) 341-7346 � Fax No. (612) 349-2665 ys- ��3 STATE OF MINNESOTA) ) ss COUNTY OF HENNEPIN) AFFIDAVIT OF SERVICE BY U.S. MAlL LaVon Regan, being first duly sworn, hereby deposes and says that on the 7th day of J�, 1998, at the City of Minneapolis, county and state aforementioned, she served the attached Findings of Fact. Conclusions and Recommendation of the Administrative Law Judae: OAH Docket No. 11-2111- 11700-3, by depositing in the United States mail at said City of Minneapolis, a true and correct copy thereof, properly enveloped, with first ciass postage prepaid and addressed to the individuals named herein. Fred Owusu, City Clerk 170 City Hall 15 West Kellogg Boulevard St. Paul, MN 55102 David Gronbeck Attorney at Law Gronbeck Law Office Suite 1710, One Financial Plaza Minneapolis, MN 554�2 Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Kellogg Boulevard St. Paul, MN 55102 l_E.L� 1� � � LaVon Regan Subscribed and sworn to before me this 7th day of July, 1998. �� c , e�-�� Notary Public � � � OUISE C. COOPER � , NQTARYPUBLIC % My Comm. E�i�aJen.31.2000 9�- ��3 11-2111-11700-3 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of All Licenses Held by Jill Rasmuson, d/b/a R& R Books for the Premises Located at 674 UniversityAvenue West in Saint Paul License ID No. 32901 FINDINGS OF FACT. CONCLUSIONS AND RECOMMENDATION The above-entitled matter came on for hearing before Administrative Law Judge Barbara L. Neilson on June 9, 1998, at 9:30 a.m. in Room 42 of the Saint Paul City Nail. Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota 55102, appeared on behalf of the Office of License, Inspections and Environmental Protection of the City of Saint Paul ("the City"). David Gronbeck, Attorney at Law, Gronbeck Law Office, Suite 1710, One Financial Plaza, Minneapolis, Minnesota 55402, appeared on behalf of the Licensee, Jill Rasmuson, d!b/a R& R Books. The record in this matter closed at the conclusion of the hearing on June 9, 1998. This Report is a recommendation, not a final decision. The Saint Paul City Council will make the final decision after a review of the record. The City Council may adopt, reject or modify the Findings of Fact, Conclusions and Recommendations contained herein. Pursuant to Saint Paul Legislative Code section 310.05(c-1), the City Council shall provide an opportunity to present oral or written argument alleging error in this Report and to present argument related to any adverse action recommended in this Report. The parties should contact the City Clerk to ascertain the procedure for filing such argument or appearing before the Council. STATEMENT OF ISSUES The issue presented in this matter is whether or not an employee of R& R Books sold sexualfy explicit material to a minor in violation of Minn. Stat. § 617.293, subds. 1(a) and (b), and Saint Paul Legislative Code § 276.02(a) and, if so, whether adverse action should be taken against the licenses held by Jill Rasmuson d!b!a R& R Books. Based on all of the proceedings herein, the Administrative Law Judge makes the following: 9� ��3 FINDINGS OF FACT 1. The Respondent, Jifl Rasmuson, owns and operates R& R Books, an adult bookstore located at 674 Univers'rty Avenue West, Saint Paul. Ms. Rasmuson's husband, Richard S. Rasmuson, Jr., assists with the day-to-day operations of the bookstore. 2. Ms. Rasmuson holds mechanical amusement device machine and mechanical amusement device operator licenses from the City of Saint Paul for use at R& R Books. These licenses will expire on October 31, 1998. Ex. 1. 3. There is a sign o� the front door of R& R Books indicating that persons must be 21 or older and have an ID in order to enter the store. Even though persons who are 18 can legally be in the store, Mr. Rasmuson specified 21 on the sign because he did not want any kids to have contact with the materials. Mr. Rasmuson instructs clerks in the store to check a customer's ID if the customer looks younger than 21 years of age. If the customer looks over 21, the clerk is given discretion whether or not to check the individual's ID. 4. During the spring of 1998, the City's Office of License, Inspections and Environmental Protection was interested in the issue of the location of "adult uses" in the City. On approximately March 23, 1998, the Office sent a letter to adult bookstores indicating that relocation of their premises may be necessary under an ordinance that had been recently adopted. 5. In April, 1998, the City received a complaint regarding an adult bookstore other than R& R Books selling materiais to a minor. As part of its investigation of the complaint, the City decided to conduct a compliance check to determine if employees would check for identification of a minor or se11 a minor an item of a sexually explicit nature. R& R Books was sefected at random for inclusion in the compfiance check. There is no evidence that the City ever received any previous complaints alieging that R& R Books had sold sexually explicit material to a minor. 6. Compliance checks are also conducted by the City in stores selling liquor and tobacco products. The City has only infrequently conducted compliance checks with respect to adult businesses. 7. The City conducted compliance checks with respect to R& R Books and four other adult businesses on April 3, 1998. Prior to conducting the compliance checks, Kristina Schweinler, a senior investigator with the City's License Inspection and Environmental Protection Office, located a minor to serve as a decoy. She obtained the written permission of the boy's parent to participate in the compliance checks. The boy's mother verified to Ms. Schweinler that the boy was born on August 3, 1982, and thus was 15 years old. Ex. 5. In addition, Ms. Schweinler personally knew the boy and was familiar with his age. 8. Ms. Schweinler and Sgt. Richard Wachal and Officer Felicia Reilly of the St. Paul Police Department met with the boy in police headquarters on Aprif 3, 1998, befiore �: 9� �� 3 the compliance checks were conducted. A general search was conducted of the boy to confirm that he was not in possession of any sexually explicit material, extra cash, or a false ID. They then gave the boy money to purchase the materials and took him to the locations in question. 9. At approximately 4:00 p.m. on April 3, 1998, the boy went into R& R Books. Sgt. Wachal followed him in shortly thereafter. The boy did not use any of the machines in R& R Books that are licensed by the City. He selected a movie called "Our Bang ... An Orgy in Every Bo�' and a finro-pack of magazines sealed in piastic entitled "Adam and Raider' and took them to the clerVc behind the counter. The c{erk without hesitation rang up the purchase without asking the boy for an ID, placed the items in a bag, took the money from the boy, and gave the items to him. The boy then left the store and went to the car where Officer Reilly and Ms. Schweinler were waiting. Ex. 2. 10. Sgt. Wachal, Officer Reilly, and Ms. Schweinler then went into R& R Books to confront the cashier. The boy remained in the car. Sgt. Wachal displayed his badge and identified himself as a Saint Paul Police Department sergeant in the Vice Unit. The cashier, Calvin Diri, said, "It's my fault" and admitted that he did not check the boy's ID. He said that he had been working at R& R Books for ten years. Ex. 2. He also said that he was sick and needed to go to the doctor and was going to undergo a lung reduction. Mr. Dirl believed that the boy looked at least 25 years old. 11. The magazines and the video purchased by the boy contained sexually explicit material. The magazines purchased by the boy contained numerous photographs of nude men and women in intercourse positions, but did not show actual penetration. The ten- minute video showed nude men and women engaging in sexual intercourse, oral sex, mutual masturbation, sexual intercourse with multiple partners, and other sexual conduct. 12. By fetter dated April 17, 1998, the Respondent was notified that the Director of the City's Offce of License, Inspections, and Environmental Protection was recommending that adverse action be taken against the licenses held by Ms. Rasmuson d/b!a R& R Books because sexually explicit material had been sold to a minor on or about April 6[sic], 1998. The letter informed the Respondent of its right to request an evidentiary hearing before an Administrative Law Judge. Ex. 3. 13. The Respondent submitted a timely request for hearing, and this proceeding was commenced. Ex. 4. 14. The Director of the Gity's O�ce of License, Inspections, and Environmental Protection has recommended a fine of $500 for R& R Books' alleged violation of state law and city ordinance. The amount of the fine is based upon a matrix set forth in Section 409.26 of the Saint Paul Legislative Code which establishes presumptive penalties for liquor violations based upon the square footage of the business involved in the violation. The City has not established a specific matrix applicable to violations involving adult bookstores. 3 9�-763 15. Criminal charges are pending against the R& R Books clerk who sold the materials to the boy. As of the date of the hearing, there had been no disposition of the charges. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. The Saint Paul City Council and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.55 and 340A.415 and Saint Paul Legaslative Code §§ 310.05 and 310.06. 2. The Notice of Hearing issued by the City was proper and all applicable substantive and procedural requirements have been fulfilled. 3. The City bears the burden in this matter of proving by a preponderance of the evidence that adverse action is warranted with respect to the mechanical amusement device and operator's licenses at issue. 4. Chapter 310 of the Saint Paul Legislative Code contains general provisions relating to licenses issued by the City. Section 310.06(b)(6) provides that adverse actlon may be taken against any or all licenses or permits held by a licensee where the licensee (or a person whose conduct may by law be imputed to the licensee) "has violated, or pertormed any act which is a violation of, any of the provisions of these chapters or of any statute, ordinance or regulation reasonably related to the licensed activity, regardless of whether criminal charges have or have not been brought in connection therewith." Section 310.17 provides that "[a]ny act or conduct by any clerk, employee, manager or agent of a licensee ... which act or conduct takes place ... on the licensed premises ... and which act or conduct violates any state or federal statutes or regulations, or any city ordinance, shall be considered to be and treated as the act or conduct of the licensee for the purpose of adverse action against al1 or any of the licenses held by such licensee." "Adverse action" is defined in sections 310.01 and 310.05(i) of the Saint Paul Legislative Code to inciude the imposition of a fine. 5. Minn. Stat. § 617.293, subd. 1(1996), provides thafi it is "unlawfu9 for any person knowingfy to self or loan for monetary consideration to a minor: (a) [ajny ... motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudiiy, sexual conduct, or sadomasochistic abuse and which is harmful to minors, or (b) [a]ny ... magazine ... which contains any matter enumerated in clause (a) ...." Section 276.02 of the Saint Paul Legislative Code contains the same prohibition as Minn. Stat. § 617.293. "Nudity" is defined in both the statute and the Saint Paul Legislative Code to mean "the showing of the human male or female genitals" with less than a fully opaque covering. Minn. Stat. § 617.292, subd. 3; Saint Paul Legislative Code § 276.01. "Sexuaf conducY' is defined in both to include "acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's unclothed � 9� ��3 genitals ...."' The phrase "harmful to minors" is defined in Minn. Stat. § 617.292, subd. 7, as follows: "Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it (1) predominantly appeals to the prurient, shameful or morbid interest of minors, and (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (3) is utterly without redeeming social importance for minors. Section 276.01 of the Saint Paul Legislative Code includes substantially the same definition of "harmful to minors." Finally, the term "knowingly" is defined in the statute to mean "having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry or both ...(1) the character and content of any material which is reasonably susceptible of examination by the defendant, and (2) the age of the minor, provided however that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor." 6. In addition, section 276.03 of the Saint Paul Legislative Code provides that a person who engaged in conduct prohibited by section 276.02 "is presumed to do so with knowledge of the character and content of the material sold ..., or the motion picture ... to be exhibited" and that it is an affirmaiive defense in a prosecution for disseminating harmful materials to minors that "[t]he defendant had reasonable cause to believe that the minor involved had reached his or her eighteenth birthday" and the minor "exhibited to the defendant a draft card, drivePs license, birth certificate or other official or apparently official document purporting to establish that such minor had reached his or her eighteenth birthday." 7. The City has established by a preponderance of the evidence that a clerk at R& R Books so{d magazines and a video to an individual under eighteen years of age ' Minn. Stat. § 617.292, subd. 4; Saint Paul Legislative Code § 276.01. 2 The oniy differences between the statutory and Code provisions is that the Code refers in item (1) to a depiction which, "[t]aken as a whole, predominantly appeals to the prurient interest in sex of minors" and in item (3) to a depiction which, "[t]aken as a whole, lacks serious literary, artistic, political or scientific value for a legitimate minority of older, normal minors." 3 Minn. Stat. § 617.292, subd. 8. The Saint Paul Legislative Code does not define °knowingly." ° There is no similar provision in Minn. Stat. §§ 617.291-617.296. 5 �l� without requesting proof that the individual had reached his eighteenth birthday. R& R Books is a"totally adulY' bookstore, and there is no claim by R& R Books that the clerk who sofd the materials to the minor lacked knowledge of the character and content of the magazines or video. The magazines and video purchased by the minor at R& R Books contained photographs and motion pictures depicting nudiiy and sexuai conduct within the meaning of Minn. Stat. § 617.293 and section 276.02 of the Saint Paul Legisiative Code. Based upon the testimony of the St. Pau1 police sergeant who reviewed the materials conceming their content, it is evident that the materiais predominantly appealed to prurient interests, were patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, lacked serious literary, artistic, political or scientific value, and lacked redeeming social importance for minors. The Licensee did not make any argument to the contrary. Therefore, the City has shown by a preponderance of the evidence that the materials were "harmful to minors" within the meaning of Minn. Stat. § 617.293 and section 276.02 of the Saint Paul Legislative Code. 8. The foregoing Gonclusions are made for the reasons set forth in the attached Memorandum, which is hereby incorporated in these Conclusions by reference. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RESPECTFULLY RECOMMENDED: that the Saint Paul City Council take adverse action against the licenses held by Jill Rasmuson d/b/a R& R Books. Dated this �i'h day of July, 1998 1��H>w.j.-- 1� i�er BARBARA L. NEILSON Administrative Law Judge NOTICE The City is respectfully requested to provide a copy of its final decision to the Administrative Law Judge by first class mail. Reported: Tape recorded (not transcribed). MEMORANDUM Based upon the record in this case, it is evident that the clerk at R& R Books sold sexually explicit material to a 15-year-old decoy on April 3, 1998, without checking the boy's identification card. The Ciiy's witnesses indicated that the decoy had been promised confidentiality and, for that reason, the City did not call the boy as a witness or introduce a � 9�-763 picture of him into evidence. This failure is not fatal to the City's case. Sufficient proof of the decoy's age was provided by the City through the testimony of Sgt. Wachal and Ms. Schweinler conceming the boy's date of birth as relayed by his mother, the written permission slip signed by the mother providing the date of birth, and Ms. Schweinier's personal knowledge of the boy and his age. Afthough the statute and ordinance at issue proscribe "knowing" sales to minors and the clerk testified that he believed that the boy looked at least 25 years old, the statute and ordinance only excuse honest mistakes as to a person's age if the customer's ID was checked or some other reasonable attempt was made to determine the true age of the customer. That did not happen in the present case. The clerk had sufficient general knowledge of the decoy's age, based upon the boy's appearance. The clerk undoubtedly also had a general knowledge of the character and content of the material he was selling—he had worked at R& R Books, an adult bookstore, for ten years. The City thus has shown by a preponderance of the evidence that the statute and ordinance were violated. Because there is no allegation that the minor operated any of the mechanical amusement device machines for which the Licensee is licensed, the Licensee contends that it is inappropriate under the circumstances for the City to take adverse action against these licenses. This argument is not persuasive. Section 310.06(b)(6) of the Saint Paul Legislative Code expressly authorizes adverse action against "any or all licenses" held where the licensee (or a person whose conduct may by law be imputed to the licensee) has "violated, or perFormed any act which is a violation of, any of the provisions of these chapters ...." The actions of the clerk are considered to be the actions of the Licensee pursuant to Section 310.17 of the Code. Accordingly, the clerk's violation of Section 276.02 of the Saint Paul Legislative Code prohibiting sales of sexually explicit materials to minors provides a sufficient basis for the imposition of discipline against the mechanical amusement device machine and mechanical amusement device operator licenses held by the Licensee. The Licensee further contends that the City improperly entrapped the clerk into committing the violation. She emphasizes that R& R Books does not have any history of complaints concerning sales to minors and thus argues that the City cannot show that R& R Books was predisposed to sell sexually explicit materials to minors. As noted by the Court of Appeals in a recent case, "it is not cfear whether the entrapment defense is available in administrative proceedings." In any case, for the entrapment defense to be successfully asserted, the defendant must first show that the government induced the commission of the crime by doing something more than mere solicitation. If inducement is shown, the public authority must show beyond a reasonable doubt that the defendant was predisposed to commit the crime. 5 In re Pedley, 1993 WL 79588 (Minn. App. 1993) (unpublished). 6 Jacobson v. United States, 112 S. Gt. 1535 (1992); State v. Abraham, 335 N.W.2d 745, 747 (Minn. 1983); State v. Ford, 276 N.W2d 178, 182 (Minn. 1979). 7 9�-�63 The initial inducement element is established only by showing °something in the nature of persuasion, badgering, or pressure by the state."' The United States Supreme Court has noted that "the fact that officers or employees of the govemment merely afforded opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and strategem may be employed to catch those engaged in criminal enterprises." The Licensee in the present case has not established that her clerk was induced by the City's decoy to commit the violation. As in In re Pedlev, the decoy here "did no more than any young person might do" in an attempt to obtain sexually explicit material, but "merely provided an opportunity for relators to make illegal sales." There is no evidence that the decoy in any way attempted to persuade, badger, or pressure the clerk into selling the materials to him; in fact, it appears that he simply presented the materials at the counter for purchase and had no significant interchange with the clerk. Because the Licensee has not shown the requisite inducement, it is not necessary to reach the further issue of whether the City has shown beyond a reasonable doubt that the Licensee was predisposed to commit the crime. The Administrative Law Judge thus respectfully recommends that adverse action be taken against the licenses held by Jill Rasmuson d/b/a R& R Books. The fact that the Licensee has no history of violations should be taken into consideration in arriving at the penalty to be imposed, as should the fact that the clerk sincerely believed that the decoy was of legal age. The City has urged that a$500 fine be imposed, using (by analogy) the matrix set forth in Section 409.26 of the Saint Paul Legislative Code applicable to liquor violations. The Judge urges the City Council to consider whether a lesser fine is appropriate under the circumstances of this case. B.L.N. ' State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980), cert. denied, 449 U.S. 1132 (1981); see also State v. Abraham, 335 N.W.2d 745, 747 (Minn. 1983); and In re Pedley, supra. $ Sorrells v. United States, 287 U.S. 435 (1932). 9 In re Pedley, 1993 WL 79588 (Minn. App. 1993). 10 Id. In addition, there is no cronvincing evidence that the comptiance checks were carried out in bad faith or were motivated by changes in City ordinances that will possibly affect the location of "adult uses" in the City. � 5'K(�jM�iT.'.'O Pv`� Cl �4 �-o�.w„J �c1 G Hc/h2�i�G 9 �_ 7� Page 1 Citation/Title 335 N.W.2d 745, State v. Abraham, (Minn. 1983) *745 335 N.W.2d 745 STATE of Minnesota, Appellant, v . Roland ABRAHAM, et al., Respondents, Scott Thomas, Respondent No. C8-83-276. Supreme Court of Minnesota. July 15, 1983. Prosecutions of 21 defendants for gross misdemeanor offense of selling intoxicating liquor to persons under age of 19, and of five other defendants for misdemeanor offense of selling nonintoxicating malt liquor to person under age 19 for consumption on premises, were dismissed by the District Court, Sibley County, Kenneth W. Bull, J., on grounds that defendants were entrapped into making sales. Prosecutors appealed. The Supreme Court, Wahl, J., held that double jeopardy clause barred prosecutor from appealing from judgment o£ acquittal by trial court acting as trier of £act on issue o£ entrapment. Appeal dismissed. 1. CRIMINAL LAW t°'�569 110 ---- 110XVII Evidence 110XVII(V) Weight and Sufficiency 11Qk569 Defenses in general, Minn. 1983. Defendant must raise defense of entrapment by showing by fair preponderance o£ evidence that government induced commission of crime; once defendant has raised issue by showing inducement, defense will bar conviction unless State can show beyond reasonable doubt that de£endant was predisposed to commit crime. 2. DOUBLE JEOPARDY G�59 135H ---- 135HIII Elements of Former Jeopardy 135Hk59 Empanelling and swearing jury, or swearing witness and receiving evidence. Formerly 110k173 [See headnote text below] 2, CRIMINAL LAW �1024(5) 110 ---- 110XXIV Review Copyright (c) West Group 1998 No claim to original U.S. Govt. works y�- �63 335 N.W.2d 745, State v. Abraham, (Minn. 1983) Page 2 110XXIV(D) Riqht of Review 110k1024 Right o£ Prosecution to Review 110k1024(5) Verdict or judgment of acquittal. Minn. 1983. Rule that judgment of acquittal, whether based on jury verdict of not guilty or on ruling by court that evidence is insu££icient to convict, may not be appealed and terminates prosecution when second trial would be necessitated by reversal, is binding on states, as is rule that jeopardy attaches when jury is impaneled or, in bench trial, when first witness is sworn or when evidence is taken. U.S.C.A. Const.Amend. 5. 3. CRIMINAL LAW �739.1(1) 110 ---- 110XX Trial 110XX(F) Province of Court and Jury in General 110k733 Questions of Law or of Fact 110k739.1 Entrapment 110k739.1(1) In general. Minn. 1983. When defendant elects to have claim of entrapment decided by trial court, trial court decides it as trier of fact. 4. DOUBLE JEOPARDY C�.�86 135H ---- 135HIV Effect of Proceedings After Attachment of Jeopardy 135Hk86 Retrial and premature termination of case in general. Formerly 110k180 [See headnote text below] 4. CRIMINAL LAW °G.�` 739.1(1) 110 ---- 110XX Trial 110XX(F) Province of Court and Jury in General 110k733 Questions of Law or of Fact 110k739.1 Entrapment 110k739.1(1) In general. Minn. 1983. If trial court as trier of fact decides that there was no entrapment, defendant is barred £som raising issue during jury phase of trial; on other hand, if trial court decides issue in defendant's favor, that is the same as finding of not guilty and therefore ends matter, causing prosecution to be terminated and further prosecution barred. U.S.C.A. Const.Amend. 5. 5. DOUBLE JEOPARDY G�103 135H ---- 135HIV E£fect of Proceedings After Attachment of Jeopardy 135Hk100 Acquittal Copyright (c) West Group 1998 No claim to original U.S. Govt. works 335 N.W.2d 745, State v. Abraham, (Minn. 1983) 135Hk103 What constitutes acquittal, in general. Page 3 Formerly 110k186 Minn. 1983. When trial court, acting as trier of Pact, decided that de£endants had been entrapped, prosecution was ended and decision constituted acquittal and double jeopardy clause barred appeal by State. U.S.C.A. Const.Amend. 5. *746 Syllabus by the Court Double jeopardy clause bars prosecutor from appealing from judgment of acquittal by trial court acting as trier of fact on issue of entrapment. Hubert H. Humphrey III, Atty. Gen., Norman B. Coleman, Jr., and Richard D. Hodsdon, Sp. Asst. Attys. Gen., St. Paul, Thomas G. McCarthy, County Atty., Winthrop, £or appellant. Carey & Emmings and John W Genty & Eggert and Richard D Carey, Fairfax, for Roland Abraham, et al. Genty, Winsted, for Scott Thomas. Considered and decided by the court en banc without oral argument. WAHL, Justice. This is an appeal by the state pursuant to Minn.R.Crim.P. 29.03, subd. 1. The appeal is from an order of the district court, which dismissed the prosecutions of 21 defendants for the gross misdemeanor offense of selling intoxicating liquor to a person under the age of 19, Minn.Stat. � 340.73, subd. 1(1982), and the prosecutions of 5 other defendants for the misdemeanor offense of selling nonintoxicating malt liquor to a person under age 19 for consumption on the premises, Minn.Stat. � 340.035, subd. 1(1) (1982). The state argues on appeal that the court erred in deciding that the defendants were entrapped into making the sales. We requested supplementary briefs on the issue of whether the state's appeal is barred by the double jeopardy clauses of the United States Constitution and the Minnesota Constitution. Holding that the appeal is barred, we dismiss the appeal. These prosecutions resulted from an investigation that had its genesis in the reception of complaints by the sheriff and county attorney for Sibley County that persons under the age o£ 19 were able to purchase alcoholic beverages in several named bars in the county without being required to show proper identification. The sheriff and county attorney decided in fairness that they should include all the bars and taverns in the county in their investigation. The sheriff obtained the assistance o£ an 18-year-old female and a 17-year-old male. In each case the decoys were instructed to enter the bar and attempt to purchase a 12-pack o£ beer if there was off-sale or a drink if on-sale only. In the latter situation, assuming a sale was made, they were either to carry the glass outside or empty it into a urine sample bottle. They were also told to 9�-�63 Copyright (c) West Group 1998 No claim to original U.S. Govt. works 9'� 763 Page 4 335 N.W.2d 745, State v. Abraham, (Minn. 1983) produce valid identification if asked for identi£ication and not to make any false representations concerning their age. Before and a£ter each night's investigation, they were given breath tests. The results, both before and after, were always .00, indicating that they did not consume any of the alcohol they bought. The decoys went to every bar and tavern in the county but one which was inadvertently missed. An undercover o££icer entered the bar £irst on each occasion and placed himself in a position where he could see the decoy(s) attempt a purchase. The *747 decoy(s) then entered and made the purchase. In four instances the undercover officer was not able to observe the sale. After the sale was made and the decoy(s) left the bar, another officer would enter the bar and, based on the description given by the decoy(s) and/or the undercover o£ficer, identify the person who made the sale. The cases were then forwarded to the county attorney for complaints. No arrests were made at the scene. A total of 23 bars and 29 bartenders were checked. Of the 29 bartenders, 27 in 21 bars made sales. One of the 27 was not charged because of identification problems. The remaining 26 were charged. Of the 29 bartenders who were checked, only 4 requested to see any identification card. (FN1) Two of the 4 sold beer anyway. The 2 who did not were not charged. Acting pursuant to State v. Grilli, 304 Minn. 80, 230 N.W.2d 445 (1975), the defendants waived their right to trial by jury on the issue o£ entrapment and submitted the issue to the trial court for decision at the omnibus hearing. The court decided the entrapment issue primarily on the basis of a written stipulation setting £orth the facts as we have stated them. The trial court reasoned that the officers, by using the decoys, violated the law themselves and that they in effect "ensnare[d] the law abiding and innocent into the commission of crimes [that do not] even require an intent on the part o£ the wrongdoer." Specifically, the court determined (a) that the state, throuqh its officers, violated the law in having the decoys purchase liquor and that this conduct constituted an improper inducement and (b) that the state had not proven that any of the defendants were predisposed to commit the crimes. With respect to this latter factor, the court stated that in its opinion the mere fact that the defendants willingly made the sales without inquiring was not itself indication of predisposition. The court concluded that if the defendants were not entrapped then "perhaps the defense of entrapment is inapplicable in cases involving sales of intoxicating liquor." [1] Minnesota follows the so-called subjective test of entrapment, and the defendant must raise the defense by showing by a fair preponderance of the evidence that the government induced the commission of the crime. Once the defendant has raised the issue by showinq inducement, the defense will bar a conviction unless the state can show beyond a reasonable doubt that the defendant was predisposed to commit the crime. State v. Ford, 276 N.W.2d 178, 182 (Minn.l979); State v. Gri1.Zi, 304 Minn. 80, 96, 230 N.W.2d 445, 456. Recently, in State v. Olkon, 299 N.W.2d 89, 107 (Minn.1980), cert. denied, 449 U.S. 1132, 101 S.Ct. 954, 67 L.Ed.2d 119 (1981), we stated that in order to show inducement the defense must show "something in the nature of persuasion, Copyright (c) West Group 1998 No claim to original U.S. Govt. works 9� ��03 335 N.W.2d 745, State v. Abraham, (Minn. 1983) badgering, or pressure by the state." We also stated in prosecution may prove predisposition "by evidence that the responded to the solicitation of the commission of a crime Page 5 Olkon that the accused readily by the state." A few courts have held that the defense of entrapment does not even apply to an illegal sale of liquor which does not require proof of any criminal intent. See, e.g., Lee v. State, 66 Ok1.Cr. 399, 92 P.2d 621 (1939). The general view, however, is that the defense does apply to liquor-sale offenses. The cases are collected in Annot., 55 A.L.R.2d 1322 (1957). A Minnesota case to this effect is State v. Boylan, 158 Minn. 263, 197 N.W. 281 (1924). We implied in Boylan that generally the de£ense of entrapment would not succeed in the context of liquor-sale offenses. *748 Cases that arise in the context of laws prohibiting the general sale of liquor are not completely in point because in those cases the defendant, by definition, knows that the sale is illegal. Cases that deal with the issue of entrapment in the context of sales to minors include Village of Spring Lake v. Gardner, 38 Mich.App. 189, 196 N.W.2d 5(1972); State v. Parr, 129 Mont. 175, 283 P.2d 1086 (1955). � It is strongly arguable that the trial court erred in determining that the defendants were entrapped. (FN2) However, we do not decide this issue because of our holding that the double jeopardy clause bars the state's appeal. [2] We base our holding that the state's appeal is barred on the decision of the United States Supreme Court in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). The general rule applied in Scott is that "[a] judgment of acquittal, whether based on a jury verdict o£ not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal." 437 U.S. at 91, 98 S.Ct. at 2193 (footnote omitted). Scott states that in determining whether a ruling by the trial court constitutes a judgment of acquittal, the trial court's characterization of its own action is not controlling. Rather, one must look behind the label and determine whether the trial court's ruling relates to the question of the defendant's factual guilt or innocence. The court stated: Our opinion in Burks [v. United States, 437 U.S. 1, 91 S.Ct. 2141, 57 L.Ed.2d 1(1978) ] necessarily holds that there has been a"failure of proof," *** requiring an acquittal when the Government does not submit sufficient evidence to rebut a defendant's essentially factual defense of insanity, though it may otherwise be entitled to have its case submitted to the jury. The de£ense o£ insanity, like the defense of entrapment, arises from "the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed of£ense," United States v. Russell, 411 U.S. 423, 435 [93 S.Ct. 1637, 1644, 36 L.Ed.2d 366] (1973), where other facts established to the satis£action of the trier of fact provide a legally adequate justification for otherwise criminal acts. Copyright (c) West Group 1998 No claim to original U.S. Govt. works 9� ��3 335 N.W.2d 745, State v. Abraham, (Minn. 1983) Page 6 Such a factual finding does "necessarily establish the criminal defendant's lack of criminal culpability," *** under the existing law; the £act that "the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles," *** af£ects the accuracy that determination, but it does not alter its essential character. By contrast, the dismissal of an indictment for preindictment delay represents legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation. of � 437 U.S. at 97-98, 98 S.Ct. at 2197 (footnote omitted). The rule o£ the Scott case is binding on the states, as is the rule that jeopardy attaches when the jury is impaneled or, in a bench trial, when the first witness is sworn or when evidence is taken. Christ v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). [3][4] As our decision in State v. Ford, 276 N.W.2d 178, 183, makes clear, when the defendant elects to have the claim of entrapment decided by the trial court, the trial court decides it as trier of fact. (FN3) Thus, *749. if the trial court as trier of fact decides that there was no entrapment, the defendant is barred from raising the issue during the jury phase of the trial. On the other hand, if the trial court decides the issue in the defendant's favor, that is the same as a finding of not guilty and therefore ends the matter, causing the prosecution to be terminated and further prosecution barred. Thus, although the state's appeal in the instant case is styled as a pretrial appeal, in reality it is an appeal by the state following an acquittal. [5] We indicated in Grilli that appeal by the state was pesmissible under Minn.Stat. � 632.11. 304 Minn. at 95, 230 N.W.2d at 455. Scott, decided subsequent to Gri11i, dictates a contrary result as to appeal. There has been criticism of the reasoning of the Scott case. See, e.g., Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct.Rev. 81, 143-145. However, we are bound by the Scott decision and the principles expressed therein. Following Scott, we hold that when the trial court, acting as trier of fact, decides that there was entrapment, that ends the prosecution and constitutes an acquittal from which the state may not appeal. Attorney for respondents Abraham, et al., is allowed $400 attorney fees on this appeal. Attorney for respondent Thomas is allowed $400 attorney fees on this appeal. Appeal dismissed. FN1. Minn.Stat. y 340.942 (1982) provides: In any criminal proceeding for the enforcement o£ the provisions oP sections 340.035, 340.73, 340.83, 340.941, relating to the sale or furnishing o£ non- intoxicating malt liquor or intoxicating liquor to the persons described therein, the defendant may establish by competent evidence that he has made a Copyright (c) West Group 1998 No claim to original U.S. Govt. works 335 N.W.2d 745, State v. Abraham, (Minn. 1983) � � /r��FN2 98-�� 3 Page 7 bona fide and careful investigation of the status of such person and he has determined upon evidence sufficient to convince a careful and prudent person that such sale is not a violation o£ said sections; such evidence shall be considered in determining whether the de£endant is guilty of intent to violate said laws. . The authorities attempted to include a11 the bars and taverns in the investigation and, althouqh they used "decoys," they did not try to deceive the sellers into thinking that the decoys were of age. De£endants did not show that the decoys persuaded, badgered, pressured or otherwise induced them to violate the law. The evidence that defendants readily sold the liquor, either without checking the identification cards of the decoys or without paying any attention to the information on the cards, showed that the defendants were predisposed to commit the crimes. FN3. The Ford case should be consulted for its analytical precision. Particularly, it clarified the meaning of the phrase "entrapment as a matter of law," a phrase which theretofore had been used rather loosely and confusingly. Copyright (c) West Group 1998 No claim to original U.S. Govt. works § 617.291 ABOItTION; OBSCE1vITY: HOUSES OF ILL-FAi� Historical and Statutory Notes 1987 Legislation dances, or other exL�bitions presented before an The 1957 amendmeut rewrote subd. 1 and ex- a"a'ence. For former text of subd. 1, see the maia volume. Section 3 of the ameadatory act Promded tended coverage of subd. 2 to disemition with- tyyt the amendment to this seciion was effeetive out monetary eonsideration in a plaee of publie �� 1, 1957, and applied to crimes committed accummodation, and to sexually explicit plays, on or after that date• 617293. Harmful materials; dissemination and display to minors prohibited Subdivision 1. Dissemination. It is unlawfi�l for any person lmowingly to sell or loan for monetary consideration to a ininor: (a) Any pietuxe. PhotogaPU, drawing. SculPture, motion pieture �film or similaz visuai representation or image of a peison or portion of the human body wluch depiets nudity, sexual eonduct, or sadomasochistic abuse and wtrich is hazmful to minors, or @) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in elause (a), or whieh contains explicit and detailed verbal descriptions or narrative accrounts of sexual excitement, sexual'conduct, or sadomaso- chistie abuse which, taken as a whole, is harmfnl to minors• Subd 2. Display. (a} It is unlawful for any person eommercially and lmowingly to exkubit or display any material which is harmful to minors in its content in any place of public accommodation where minors aze or may be present and where minois are able ta view the material unless eaeh item is kept in a sealed wrapper at all times. (b) It is unlawful for any peison coinmerciaIIY and Imoiaingly to exhibit or display any material the cover or paekaging of which, standing alone, is harmful Lo minoTS in any place of public accommodation where minors are or may be present or allowed to be present and where minors are able to view the material unless eaeh item is blocked from view by an opaque cover. The opaque eover requirement is satisfied if those portions of the cover or packaging containing the material I�armful to minors are blocked from view by an opaque cover. (e) The provisions of this subdivision do not apply to the exhibition or display of matei�ais harmful to minors under circumstances where minors are not present or are not able to view the material or the material's cover or packaging. A person may comply with the require- ments of this paragraph by (1) physically segregating the material in a manner that physieally prohibits access ta and view of the material by minors, (2) prominenUy posting at the entrance to the restricted area: "Adults only—you must be 18 to enter," and (3) enforcing the restriction. - Amended by Laws 1988, c. 452, § 1� eff. Aug. 1, 1988. Historical and Statutory Notes 1988 Legislation Laws 1985, c. 452, § 4, pmvided that Laws 1988, 'i7�e 1988 amendment designated subd 1 as e. 452, § 1, was effective August 1, 1985, and sueh, and added subd. 2, relating to display of applied to crimes eommitted on or after that date. harmfulmateria7s. ' - -. " Cross References Human service licensing, applieation procedures, see § 245A.04. � United States Supreme Court Child pornography, First Ainendment, scienter Ine, U.S.Cat.1994, 115 9.Ct 464, 513 U.S. 64, 130 presumption, knowledge of age and seYUallY explie- L.Ed2d 372, on remand 77 F.3d 491. it nature of material, see U.S. v. X-Citement vdeo, . 614294. Exhi6ition prohi6ited It is unlawful for any person knowingly to exhibit for a monetary consideration to a minor or Imownigly to sell to a minor an admission ticket or pass or Imowingly to admit a minor; 466 9� 7h3 Chapter 276. Dissemination of Indecent Materials to Minors" '�Editor's note--The chapter is derived from Ord. No. 16318, adopted July 19, 1977. A revised version, enacted by Ord. No. 16559, adopted Sept. 4, 1979, expired by its terms two yeazs from date of enactment. Sec. 276.01. DeSnitions. As used in this chapter and Chapter 275, the terms defined in this section shall have the following meanings ascribed to them: Harmful to minors means that quality of any description or representation, in whatever form of nudity, sexual conduct, sexual excitement or sadomasochistic abuse, when it: (1) Taken as a whole, predominantly appeals to the pnxrient interest in sex of minors; (2) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (3) Taken as a whole, lacks serious literary, artisric, political or scientific value for a legitimate minority of older, normal minors. Minor means any person under the age of eighteen (18) yeazs. Nudiry means the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a full opaque covering of any portion thereof below a point immediately above the azeola, or the depiction of covered male genitals in a discernable turgid state. Sadomasochistic abuse means flagellation ar torture by or upon a person clad in undergarments, in a revealing coshune, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed. Sexual conduct means acts of masturbafion, homosexuality, sexual intercourse or physical contact with a person's ciothed or unclothed genitals, pubic area, buttocks or female breast. Sexual excitement means the condition of human male or female genitals when in a state of sexual stimulation or arousal. (Code 1956, § 475.01; Ord. No. 17805, § 4, 1-24-91) Sec. 276.02. Prohibited. 9�-7(03 (a) It shall be unlawful for any person knowingly to disseminate, sell or loan for monetary consideration to a minor: (1) Any picture, photograph, drawing, sculpture, motion picture film or similar visual reproduction or image of a person or portion of the human body which depicts nudity, seaual conduct or sadomasochistic abuse and which is hazmfid to minors; or (2) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in the preceding subparagraph (i) hereof, or which contains explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, when taken as a whole, is hannfiil to minors. (b) It is unlawful for any person Irnowingly to e�chibit for a monetary consideration to a minor or knowingly to sell to a minor an admission ticket or pass or knowingly to admit a minor for a monetary consideration to premises whereon there is eafhibited a motion picture, show or other presentation which, in whole or in part, depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors. (c) Any person who shall violate the provisions of this section shall be guilty of a misdemeanor. (Code 1956, § 475.02) Sec. 276.03. Presumption and defenses. (a) A person who engages in the conduct proscribed by section 276.02 is presuxned to do so with knowledge of the character and content of the material sold or loaned, or the motion picture, show or presentation e�ibited or to be e�ibited. (b) In any prosecution for disseminating indecent or hatmful material to minors, it is an affirmative defense that: (1) The defendant had reasonable cause to believe that the minor involved had reached his or her eighteenth birthday; and (2) Such minor e�iibited to the defendant a draft cazd, driver's license, birth certificate or other official or apparently official document purporting to establish that such minor had reached his or her eighteenth birthday. (Code 1956, § 475.03; Ord. No. 17805, § 5, 1-24-91) Sec. 276.04. Reserved. 98 ��3 Editor's note--Section 276.04, providing exemprions from the provisions of this chapter and derived from Code 1956, § 475.04, was repealed by § 6 of Ord. No. 17805, adopted Jan. 24, 1991. ��' �� Sec. 310.05. Hearing procedures. (a) Adverse action; 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 conditions upon a license, or the denial of an application for the grant, issuance or renewal of a license, or the disapproval of a license issued by the State of Minnesota, the applicant or licensee shall be given norice and an opporhuiity to be heard as provided herein. The council may consider such adverse actions when recommended by the inspector, by the director, by the director of any executive department established pursuant to Chapter 9 of the Charter, by the city attorney 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 before 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 prepazed and served or mailed by the inspectar or by the city attorney. (c) Hearing. 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 heasing shail 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 sl�ail be provided an opportunity to present evidence and arguxnent 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 testimony or evidence or otherwise participate in such hearing. (c-1} Procedure; hearing examiner. The hearing examiner shall heaz 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, together with a recommendation for adverse action. The council sha11 consider the evidence contained in the record, the hearing examiner's recommended fmdings of fact and conclusions, and shall not consider any factual testimony not previousiy submitted to and considered by the hearing examiner. After receipt of the hearnag examiner's findings, conclusions, and recommendarions, the council shall provide the applicant or licensee an opportuniTy to present oral or written azguments alleging error on the part of the examiner in the application of the law or interpretarion of the facts, and to present azgument 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 azguments presented at the hearing, the council shall determine what, if any, adverse action shall be taken, which action shall be by resolution. Tlae council may accept, reject or modify the fmdings, conclusions and recommendations of the hearing examiner. 9� �� (c-2) Ex parte contacts. If a license matter has been scheduled for an adverse hearing, council members shall not discuss the license matter with each other or with any of the parties or interested persons involved in the matter unless such discussion occuts on the record during the hearings of the matter or during the council's final deliberarions of the matter. No interested person shall, with knowledge that a license matter has been scheduled for adverse hearing, convey or attempt to convey, orally or in writing, any information, azgument 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 regazding status, scheduling or procedures concerning a license matter. An interested person, for the purpose of this pazagraph, shall mean and include a person who is an officer 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 sha11 receive and keep a record of such proceedings, including testimony and e�ibits, and shall receive and give weight to evidence, including hearsay evidence, which possesses probarive value commonly accepted by reasonable and prudent persons in the conduct of their affairs. ( fl Council action, resolution to contain fzndings. Where the council takes adverse action with respect to a license, licensee or applicant for a license, the resolution by which such action is taken shall contain its findings and deternunation, including the imposition of conditions, if any. The council may adopt a11 or part of the findings, conclusions and recommendations of the hearing examiner, and incorporate the same in its resolution taking the adverse action. (g) Additional procedures where required. Where the provisions of any statute or ordinance require additional notice or hearing procedures, such provisions sha11 be complied with and shall supersede inconsistent provisions of these chapters. This shall include, without limitation by reason of this specific reference, Minnesota Starixtes, Chapter 364 and Minnesota Statutes, Section 340A.415. (h) Discretion to hear notwithstanding withdrawal or surrender of application or license. The council may, at its discretion, conduct a hearing or direct that a hearing be held regazding revocation or denial of a license, notwithstanding that the applicant or licensee has attempted or purported to withdraw or surrender said license or application, if the attempted withdrawal or surrender took place after the applicant or licensee had been notified of the hearing and potential 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 continuarion 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 makiug the request. 9� �� (j) If the council imposes an adverse action as defined in section 310.01 above, a generic notice of such action shall be prepazed by the license inspector and posted by the licensee so as to be visible to the public during the effecrive period of the adverse action. The licensee shall be responsible for taking reasonable steps to make sure the norice remains posted on the front door of the licensed premises, and failure to take such reasonable precautions may be grounds for fiirther 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 examiuer. The costs of a contested hearing include, but aze not Innited to, the cost of the administrarive law judge or independent hearing exauiiuer, stenographic and recording costs, copying costs, city staff and attorney time for which adequate recoxds have been kept, rental of rooms and equipment necessary for the hearing, and the cost of expert wimesses. 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 hazassment; (ii) the nature of the violarion 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, and/or the circumstances under which the violation occurred were aggravated and serious; (iii) the violation created a serious danger to the public health, safety or welfare; (iv) the violafion involved unreasonable risk of harm to wlnerable 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 409.26 of the Legislative Code; or (vii) the viola6on involved the sale of cigarettes to a minor. (1) Imposition 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. (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) Sec. 310.06. Revocation; suspension; adverse actions; imposition of conditions. (a) Council may take adverse action. The council is authorized to take adverse action, as defined in secrion 310A1 above, against any or all licenses or permits, licensee or applicant for a license, as provided in and by these chapters. Adverse acrions against entertaiument licenses issued under Chapter 411 of the Legislative Code may be initiated for the reasons set forth in g8-�b3 subsecfion (b) below, or upon any lawful grounds which aze communicated to the license holder in writing prior to the hearing before the council. Such actions shall be initiated and carried out in accordance with the procedures oudine in secrion 310.05; provided, bowever, that the formal notice of hearing shall be used to initiate the adverse action without the use of prior procedural steps. (b) Basis for action. Such adverse acrion may be based on one (1) or more of the following reasons, which are in addition to any other reason specifically provided by law or in these chapters: (1) The license or permit was procured by misrepresentation of material facts, fraud, deceit or bad faith. (2) The applicant or one (1) acting in his or her behalf made oral or written misstatements or misrepresentations of material facts in or accompanying the application. (3) The license was issued in violation of any of the provisions of the Zoning Code, or the premises which aze licensed or which aze to be licensed do not comply with applicable health, housing, fire, zoning and building codes and regulations. (4) The license or permit was issued in violation of law, without authority, or under a material mistake of fact. (5) The licensee or applicant has failed to comply with any condition set forth in the license, or set forth in the resolution granting or renewing the license. (6) a. The licensee or applicant (or any person whose conduct may by law be imputed to the licensee or applicant) has violated, or performed any act which is a violation of, any of the provisions of these chapters or of any statute, ordinance or regulation reasonably related to the licensed activity, regardless of whether criminal charges have or have not been brought in connection therewith; b. The licensee or applicant has been convicted of a crime that may disqualify said applicant from holding the license in question under the standards and procedures in Minnesota Statutes Chapter 364; or a The licensee or applicant (or any person whose conduct may by law be nnputed to the licensee or applicant) has engaged in or permitted a pattern or practice of conduct of failure to comply with laws reasonably related to the licensed acrivity or from which an inference of lack of fitness or good chazacter may be drawn. (7) The activifles of the licensee in the licensed activity created or have created a 9� 7l0 3 serious danger to the public health, safety or welfaze, or the licensee performs or has performed his or her work or activity in an unsafe manner. (8) The licensed business, or the way in wYrich such business is operated, maintains or pernuts condirions that unreasonably annoy, injure or endanger the safety, health, morals, comfort or repose of any considerable number of inembers of the public. (4) Failure to keep sidewalks or pedestrian ways reasonably free of snow and ice as required under Chapter 114 of the Saint Paul Legislative Code. (10) The licensee or applicant has shown by past misconduct or unfair acts or dealings: physical abuse, assaults or violent actions done to others, including, but not limited to, actions meeting the definition of criminal sexual conduct pursuant to Minnesota Statutes Sections 609342 through 6093451; sexual abuse, physical abuse or maltreatment of a child as defined in Minnesota Statutes Section 626.556, subdivisions 2 and 10e, including, but not limited to, acts which constitute a violation of Minnesota Statutes Sections 609.02, subdivision 10; 609321 through 6093451; or 617.246; neglect or endangerment of a child as defined in Minnesota Statutes Section 626.557, subdivision 2; the manufacture, distribution, sale, gift, delivery, transportation, exchange or barter of a controlled substance'as defined in Minnesota Statutes Chapter 152; the possession of a controlled substance as defined in Minnesota Statutes Chapter 152 in such quanrities or under circumstances giving rise to a reasonabie inference that the possession was for the purpose of sale or distribution to others; or by the abuse of alcohol or other drugs, that such licensee or applicant is not a person of the good moral character or fitness required to engage in a licensed activity, business or profession. (ll) The licensee or applicant has materially changed or pernutted a material change in the design, construction or configuration of the licensed premises without the prior approval of the city council in the case of Class III licenses, the director in the case of Class II licenses, and the inspector in the case of Class I licenses, ar without first having obtained the proper building permits from the city. (12) The licensee or applicant has violated section 294.01 of the Legislative Code, or has made or attempted to make a prohibited ex parte contact with a council member as provided in section 310.05(c-2) of the Legislative Code. The terms "licensee" or "applicanY' for the purpose of this section shall mean and include any person who has any interest, whether as a holder of more than five (5) percent of the stock of a corporation, as a partner, or otherwise, in the premises or in the business or acfivity which aze licensed or proposed to be licensed. With respect to any license for activiries entiUed to the protection of the First Amendment, notwithstanding the foregoing provisions, neither the lack of good moral character or fimess of 9�-763 the licensee or applicant nor the content of the protected speech or matter shall be the basis for adverse action against the license or application. (c) Imposition of reasonable conditdons andlor restrictions. When a reasonable basis is found to impose reasonable conditions and/or restrictions upon a license issued or held under these chapters, any one (1) or more such reasonable conditions and/or restrictions may be imposed upon such license for the purpose of promoting public health, safety and welfaze, of advancing the public peace and the elimuiation of conditions or actions that constitute a nuisance or a detriment to the peaceful enjoyment of urban life, or promoting security and safety in nearby neighborhoods. Such reasonable conditions and/or restrictions may include or pertain to, but aze not limited to: (1) A limitation on the hours of operation of the licensed business or establishment, or on particulaz types of activities conducted in or on said business or establishment; (2) A limitation or restricfion as to the location within the licensed business ar establishment whose [sic] particular type of activities may be conducted; (3) A lunitation as to the means of ingress or egress from the licensed establishment or its parking lot or ixnmediately adjacent area; (4) A requirement to provide off-street parking in excess of other requirements of law; (5) A limitation on the manner and means of advertising the operation or merchandise of the licensed establistunent; (6) Any other reasonable condifion or restriction luniting the operation of the licensed business ar establishxnent to ensure that the business or establishxnent will hannonize with the character of the area in which it is located, ar to prevent the development or conrinuation of a nuisance. The inspector may impose such conditions on Class I licenses with the consent of the license holder, or may recommend the imposition of such conditions as an adverse acrion against the license or licenses; the inspector has the same power with respect to Class II licenses. The council may impose such conditions on Class III licenses with the consent of the license holder, or upon any class of license as an adverse action against the license or licenses following notice and hearing as may be required. Such conditions may be imposed on a license or licenses upon issuance or renewal thereof, or upon and as part of any adverse action against a license or licenses, including suspension. Conditions imposed on a license or licenses shall remain on such licenses when renewed and shall continue thereafter until removed by the council in the case of conditions on Class III licenses or conditions imposed by adverse action, and by the inspector in the case of Class I and II licenses. 98 (d) Standards for muZtiple Zicense determination. In any case in which the council is authorized to take adverse action against less than all of the licenses held by a licensee, or applied for by an applicant, the following standards may be used: (1) The nature and gravity of the grounds found by the council to exist upon which the adverse action would be based; (2) The policy and/or regulatory goals for the particular licenses involved, either as embodied in the Legislative Code or as found and deterniined by the council; (3) The interrelationship of the licenses and their relative importance to the overall business enterprise of the licensee or applicant; (4) The management practices of the licensee or applicant with respect to each of such licenses; (5) The ea�tent to which adverse action against less than all of the licenses or applications would result in difficulty in enforcing and monitoring the adverse action taken; (6) The hazdship to the licensee or applicant that would be caused by applying adverse acrion to all licenses or applications; and (7) The hardship and/or danger to the public, or to the public health and welfare, that would result from adverse action against less than ali of the licenses or applications. (Code 1956, § 510.06; Ord. No. 17584, § 1, 8-25-88; Ord. No. 17657, § 15, 6-8-89; Ord. No. 17659, § 2, 6-13-89; Ord. No. 17901, §§ 2, 3, 1-14-92; Ord. No. 17917, §§ 2, 3, 3-31-92; Ord. No. 17922, § 1, 4-28-92; C.F. No. 94-500, § 3, 7-6-94; C.F. No. 94-1340, § 3, 10-14-94; C.F. No. 95-473, § 5, 5-31-95) 98_� �3 § 310.15 LEGISLATIVE CODE definition in section 310.01, shall for the purpose of this section inciude the individual partners or members of any partnership or corporation, and as to corporations, the o�cers, agents or mem- bers thereof, who shall be responsibie for the violation. (Code 1956, § 510.15) Sec. 310.16. Reserved. Editor's aote-Section 310.16, pertaiaing to license fees aad anauai inczeases, and derived from Ord. No. 16885, adopted Feb. 11, 1982; Ord. ?�o. 17059, adopted Oct. 20, 1983; and Ord. No. 17303, adopted Oct. 29, 1985, was repealed by Ord. No. 17584, § 1, adopted Nov. 19, 1991. Sec. 310.17. Licensee's responsibility. Any act or conduct by any clerk, employee, manager or agent of a licensee, or by any person providing entertainment or worldng for or on behalf of a licensee, whether compensated or not, which act or conduct takes place either on the Ticensed premises or in any parking lot or other area adjacent to (or under the lease or control ofl the licensed premises, and which act or conduct violates any state or federal statutes or regula- tions, or any city ordinance, shall be considered to be and treated as the act or conduct of the licensee for the purpose of adverse action against all or any of the licenses held by such licensee. To the estent this section is in conflict with sections 409.14 and 410.09 of the Legislative Code, this section shall be controlling and prevail; but shall not otherwise amend, alter or affect such sections. (Ord. No. 17629, § 1, 1-31-89) Sec. 310.18. License fee schedule. Notwithstanding the provision of any other ordinance or law to the contrary, the following fees aze hereby provided for all the licenses listed herein. These fees supersede all inconsistent pro- visions, including, but not limited to, graduated fee provisions, in these chapters and in other ordinances and laws, and include the fee for the license application as part of the license fee; provided, however, that this section does not amend or modify sections 310.09(a) or 310.09(d) of the Legislative Code with respect to exempt orga- nizations or late fees. Pursuant to section 310.09(b) of the Legislative Code, these schedules shall be posted in the office of the directar of the office of license, inspections and environmental protec- tion. These fees shall be effective for license renewals and new license applications occurring on and after January 1, 1995, or on the effective date of this section, whichever is later; provided, however, that with respect to all licenses whose renewal dates occur after the effective date of this new schedule, there shall be no increases in, nor offsets or refunds of, the eaisting fees paid, or due 2nCl Owing. . (a) ENFORCEMENT LEVEL 1 Chapter/Section No. License Description Fee 167 Commemaal Velvcle $66.00 198.04 Keeping of animals (Exotic Pets) 66.00 316 Animal Foods Management & Dis- tribution 66.00 317 Amusement Rides 66.00 323 Christmas Tree Sales 66.00 325 Close Out Sale . 66.00 327 Dry Cleaning Pickup Statioa 66.00 332 Liquid Fuel Ve]vcle 66.00 333 Solid Fuel Yelucle 66.00 336 Private F�el Pump 66.00 340 Mercantile Broker 66.00 345 Peddler (SoliciWr/h�ansient) 66.00 348 iteatal of Clothing & Uehicle ' 66.00 349 Rental of Clothes Attire Vehicle 66.00 350.02 Rental of Hospitat Equipment 66.00 350.02 Rental of Hospital Equipment Ve- hicle 66.00 351 � Rental of Kitchenware 66.00 353 Roller Rinks 66.00 355.01 Secondhaad Dealer- (a) & (b) Siagle Location 66.00 357.03 Refuse HaulerEach Vehicle Over One -� 66.00 359 Souad 'hvcks & Broadcast Uehi- cles 66.00 371 Finishing Shop 66.00 361.14 1bw Truck/4Vrecker Vehicle 66.00 362 1Yee lkimmeaAdditioaal Uehicle 66.00 372 Tire Recappiag Plant 66.00 376.16(d) Taxicab Driver (new) 66.00 377 Lawa Fertilizer & Pesticide Ap- plication 66.00 380 , Tanning Facility 66.00 382 � Pet Grooming 66.60 409.11 OuW oor Change in Service Area 66.00 412 Massage Center (Class B) - 66.00 414 Massage Therapist 66.00 424.02 Gasoline Filling Statioos 66.00 Supp. No. 33 2036 98-� 3 OFFICE OF ADNIIl�TISTRATTVE HEARINGS FOR THE COUNCIL OF THE CITY OF SAINT PAUL In re all licenses held by Jill D. Rasmuson, d/b/a R& R Books, for the premises located at 674 W. UniversiTy Avenue CITY'S PROPOSED EXFIIBITS TO: Judge Barbaza Neilson, Admiuistrative Law Judge, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, MN 55401 The following constitutes a list of the City's proposed e�ibits far the Administrative Law Hearing on June 9, 1998. E�hibit No. E�. No. 1 Eyh. No. 2 E�. No. 3 Exh. No. 4 Description License Screen Information Printout (1 p.) Saint Paul Police Report CN# 98-047-674 Notice of Violation dated April 17, 1998 with Affidavit of Service (3pp) Notice of Hearing dated May 8, 1998, with Affidavit of Service (4pp) C+'.({.�D.'J �62M�S-�!"�.�1 5�.1P �2 M�..(u(L � nM2:ac�PRT�• �" co M Q�-t �1-.JG.c Cl4c c.k- � t�J • Also attached, please find copies of the applicable aint Paul city ordinances and state statutes: Minn. Stat. §617293 Saint Paul Legislative Code Chapter 276 Saint Paul Legislative Code §310.05 Saint Paul Legislative Code §310.06 Respectfiilly submitted this 9�' day of June, 1998 %� �?s � Virginia Palmer Assistant City Attorney 400 City Hall Saint Paul, MN 55102 (612)266-8710 98 Lic ID......•••••••••.••• STAT..........•••......•- Business Name............ Address .................. Zip ................••••.. Doing Business As........ License Name ............. E� Date ................. Insurance Carrier........ Ins. Policy Number....... Insurance Effective Date. Ins. Expiration Date..... NOTE AREA ................ Tax Id ................... Worker Comp Exp Date..... Telephone ................ 32901 AC RASMUSON, JILL D 674 UNIVERSITY AVE W 55104 R & R BOOKS MAD MACHINE IN EXCESS OF 10 MECH AM[7SE DEVICE OPER W/10 MADS 10/31/98 INSP CHANGE FROM 02 TO O1 ON 4/09/92 INSPECTOR CHANGE FROM BARB TO MIKE - 1/6/92 1994 MAD(0056-0075) 3934023 10/15/95 228-1055 4 n e e icenses e y i .� mus � — d/b/a R & R Books , City's Exh. # 1 - Qe•d Pa _�_� I Day enth Daze r � Ciass: Lxsfion Of CF Tims 8 Date o( Occurte�xe: o«„Rad �ae O senv�,: iL6 £ZS9Z6zZi9 ST. PAUL POLIGE DEPARTMENT GENEAAI REPORT n�. on �t 2- 9R�,a � n�e. «, nea�: ldo F' f 1-� + G t f- (�, �` rA � '� a c F}� Middle ��as 05:7T 866t-90 `�'-7�v�3 tmense: �'q !4 o r L`'� " a 7 U� Bas. Phone �Disposl8otr. ❑ Records � Crime Lsb n a.s� �� DO � �� A . . _"_ —.. _ . .___ -�----- . On 43:28_Squad.742 did a-compliance-check atR&RBaaksb?4W. •�----- - University with the assistance of Off. Reilly and Kris Schweinler of LIEP. Our puipose was to --- —__. .._ ..... _.. ��detemvne if employees'woui8' ckeck £or iderifificafioa of the nridecage person or sell an ttem o£ �� ---_ _-- sexi`ally e nature verM:umesota Statpte .Z24�......_—�._.._.. .---- ---- --- - _---- Prior to going out, T met the undercover person wiih a DOt3 0£ 8-3-82 in tkte office of the � --�ice-Unit-aE-HQ—I-phofographed� and-am retaining photo Vice YJ'nit-"I�tis •--• ___ ._ - Schvteinler provided a perntission slip signed by his parem to take part in this operation�He v_vg,c...___._ .... .. ,- -�-- searefied and had no TD. He was 15 yeus old. __ _-- 2�t-1602hours I had the undarcaver--go into the establishment: He had been-givert-money � ---` to purchase the materials with and had no sexually expficit material on lus person. I Followed him .__ _.. _,_.. _ _____ _ _�._� .. "'�""ut`s�i ttiereafte"r, I no_ there was orie c liefiind fhe counter. '�he undercover chose a . . , : « ..____. __ moyie&alled."Qur.Bang...An Orgy.inHvery.Box'=and-a.tuvn-Pack.magaztne.eutRled-Adam and-_.._...--..... Raide�' that were sealed in plastic from among the selections available on the shelves. I observed _ �-- �-- -the undenovertake the selectionstorthe connter: - �'he clerl�'wiihout"fiesitation'r�ag up the � purchase without asking foi TD, placed the items in a bag, took moncy.from the undercover artd_ _, ...._ _.._. gave the items to him. -_. _. ____�I-follav�ed hun out to-the-car•where Off Reil}y-and I4ris Schweinlerwerewaiting. had the undereover sit in the cat while the rest of us went into the establishaient to confront the .. _. _ _.._.....---_ _... ___.____-------..._..__.__ ..__--- ...-----..__ ____...__......... .._....... .. ..'. castuer. Lenteted, display.edlny.pohee.badge.and idenUfied.myself as a St. Paul-PohceSergeant of -..._ the Vice Unit to the cashier later ID'd as Dirl, Calvin Everett 743 Cazroll Ave. 55104 home -- -- - � ---- phone 291=1370. DdB "&25=41. He said "If's:ny �fault" iri ifiaE tie didn'£ che`cic fo� TA'froin t�e �� ___.._,_ undercover. He went on to day_tfiat he.had beep.working there.for ten years. I told himthstl-..--• �- would prepare a repor[ for the prosecutor to consider charges against him for selling sexually �- -explicit-materiaIs to a minor. He was nottaken into-custody. °--� Once back at HQ, I briefly reviewed the video. It contained sexually explicit _material� I_„ .._.�.._... - --..._._ . . . �--- reiiiove� th'e plasiic�wrappe`r of ttie magaunes and observed numerous photos of people's genitalia.but no penetration._The case containing the video was very worn indiwting that the -- - video had been ased for some time possibly as a rental. �-- The video and magaanes were placed in the Property Room as evidence. Thi, ca�e wa� �arrr takee ta Till G�rber of the St. Paul City Atty's Office for GM screening. No.: ] Dl� ❑ BO 9❑ Th� 0 Pu°P ❑ Cf�U � F&P Q Au�to ❑ DAO ❑ C� m i rNn��rn i S c x«a r �)- � l.sb LncE ri Room rill 0 z � oO � J J � d/b/`d R aSi I2 �OOkS � City's Exh. # 2 GV�JGDYY 1.� LV � � �'�+'� �/ r "/ � C SA[N2 PAUL i • � � AAAA April 17,1998 9� r�3 OFF�OF Tf� CITY ATTORNEY Peg ityAttorney Civi7Division 400 Ciry Ha71 Te%phone: 672 266-8710 1 S Wes[ Kel7ogg Blvd Facsimile: 612 298-5679 Saint Paul, Minnesot¢ 55101 NOTICE OF VIOLATION Owner/Manager R & R Books 674 University Avenue West Saint Paul, Minnesota 55104 RE: All licenses held by Jill D. Rasmuson d/b/a R& R Books for the properry located at 674 University Ave. W. in St. Paul License ID No.: 32901 Our File No.:98-0156 Dear Sir/Madam: The Director of the Office of License, Inspections and Environmental Protection is recommending that adverse action be taken against your license. The basis for the adverse action is: On or about April 6, 1998 you or another employee sold sexually ezplicit material to a minor. This is a violation of Minn. Stat. § 617.293 subd. 1(a) and subd. 1(b), and Saint Paul Legislative Code § 276.02(a). If you do not dispute that the above incident took place, please send me a letter with a statement to that effect. The matter will then be scheduled for a hearing befare the St. Paul City Council to determine what penalty, if any, to impose. You will have an opporlunity to appeaz and speak on your own behalf, or to have someone appear there for you. On the other hand, if you wish to dispute the above facts, I will schedule an evidentiary hearing before an Administrative Law Judge (AL�. If you wish to have such a hearing, please send me a letter stating that you aze contesting the facts. You will then be sent a"Notice of Hearing," so you will know when and where to appeaz, and what the basis for the hearing wili be. �n e e icens �� — d/b/a R & R Books _ City's Exh. # 3 Page 2 R & R Books Apri117,1998 • � 9�'�� In either case, please let me know in writing no later than Wednesday, April 29,1998, how you would like to proceed. If I have not heard from you by that date, I will assume that you are not contesting the facts. The matter will then be scheduled for the hearing before the St. Paul City Council, If you have any quesrions, feel free to call me or have your attorney call me at 266-8710. Sincerely, __; / � Virginia . Palmer Assistant Ciry Attorney � �--�' ✓�^a� cc: Robert Kessler, Director, LIEP Christine Rozek, LIEP Peggy Byme, Exec. Director, Summit-University Planning Council, 627 Selby Ave., St. Paul, MN 55104 i STATE OF MINNESQTA ) ) Ss. COUNTY OF RAMSEY � q�-��3 AFFIDAVIT OF SERVICE BY MAIL JOANNE G. CLEMENTS, being first duly sworn, deposes and says that on April 17, 1998, she served the attached NOTICE OF VIOL,ATION on the following named person by placing a true and correct copy hereof in an envelope addressed as follows: Owner/Manager R & R Books 674 University Avenue W. St. Paul, MN. 55104 (which is the last known address of said person) and depositing the same, with postage prepaid, in the Unite�ates mails at St. Paul, Minnesota. Subscribed and sworn to before me this 17th d�-s�f Aari1�1998. •�¢p sendx3 •wwdJ ^�' �, —� e �yAytl10N on' �d'da31.3d ` • OFF� OF THS CITY ATTORNHY Peg CiryAnnrney �� OF SAINT PAUL leman, Mayor W� May 8, 1998 CrvilDivisian 400 Gry Hn1l IS {Yert%lloggBlvd Saint Pau� Minnesnta 55702 NOTICE OF HEARING Mr. David Gronbeck Law Offices 701 Fourth Avenue South, Suite 1700 Minneapolis, Minnesota 55415 RE: All licenses held by Jill D. Rasmuson d/b/a R& R Books for the premises located at 674 University Ave. W. in St. Paul License ID No.: 32901 Our File Number: G98-0156 Dear Mr. Gronbeck: Telephon¢: 671266.8�10 Fa1simile 67219&5619 Please take notice that a hearing will be held at the following time, date and piace concerning ail licenses for the premises stated above: Date: Tuesday, June 9,1998 Time: 9:30 a.m. Place: Room 42 St. Paul City Hall 15 W. Kellogg Blvd. St. Paul, MN. 55102 The hearing wiil be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: l�ame: Barbara Neiison Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN, 55401 Telephone: 341-7604 � ■ _ d/b/a R & R Books _, City's Exh. # 4 � � � • • y�-?�3 The Council of the City of Saint Paul has the authority to provide for hearings conceming licensed pretnises and for adverse action against such licenses, under Chapter 310, inciuding sections 310.05 and 310.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non- into�cating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action against all the licenses held at the above premises as follows: On or about April 6, 1998, an employee of the licensed establishment sold sexually eaplicit material to a minor. This is a violafion of Minn. Stat. § 617.293 subd. l(a) and subd. l(b), and Saint Paul Legislative Code § 276.02(a). The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrafive Law 7udge will have all parties idenfify themseives for the record. The City will then present its witnesses and evidence, each of whom the licensee or attorney may cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the Ciry's attomey may cross-examine. The Administrative Law Judge may in addition heaz relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding azguments may be made by the parties. Following the hearing, the Judge will prepaze Findings of Fact, Conclusions of Law, and a specific recommendation for ac6on to be taken by the City Council. You should bring to the hearing all documents, records and wimesses you will or may need to support your position. Subpoenas may be availabie to compel the attendance of witnesses or the production of docuxnents in confomuty with Minnesota Rules, part 1400.7000. If you think that this matter can be resolved or settled without a formal hearing, please contact or have your attomey contact the undersigned. If a stipulation or agreement can be reached as to the facts, that stipulation will be presented to the Admiuistrative Law Judge for incorQoration into his or her recommendarion for Council action. If the licensee or their legal representative faiis to appeaz at the hearing, the licensee's ability to challenge the allegations will be forfeited and the allegations against them which have been stated eazlier in this notice may be taken as hue. If non-public data is received into evidence at the hearing, it may become public unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. Notice of Hearing - Page 2 - � ' � � `�`�" If you have any questions, you can call me at 266-8710. Very truly yours, � �- ' .�c, �` l•� C�.. r�l �j � Vuginia D. Palmer Assistant City Attomey cc: Nancy Thomas, Office of Aduiinish-ative Hearings, 100 Washington Square, Suite 170Q Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Peggy Byrne, Exec. Director, Sununit-University Planning Council, 627 Selby Ave., St. Paul, MN 55104 Notice of Hearing - Page 3 r� � STATE OF MINNESOTA COUNTY OF RAMSEY ss. � (`�-?�e3 AFFIDAVIT OF S13RVICE BY MAIL JOANNE G. CLEMENTS, being Eirst duly sworn, deposes and says that on May 8, 1998, she served the attached NOTICE OF HEARING on the following named attorney by placing a true and correct copy thereof in an envelope addressed as follows: Mr. David Gronbeck Law Offices 701 Fourth Avenue Suite 1700 Minneapolis, MN. South 55415 (which is the last known address of said attorney) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and this 8th � Notary Publ to before me PETER P.PANGBQRN OTARY OUBUC - MINNESOTA ' QDrmt Expires Jan. 31. ZOq '/- OFFICE OF LtCENS$ INSPECTTONS AND ENVIRONMENTAL pROTECi10N RnbatKurkr,Dtreator �� '��--��--��.........:::...�...��' CITY OF SAIIVT PALJL !A[iRYPROF£SSlONALBUII�ING Te[ephone: 612-2659090 ,{�' NarmCokmcn,Mayor Su1te300 Facsimik: 61b246-9099 I�I 350St PuoSveU 612-2669I2!" Sai�uPau(�nnerom 55102-ISIO I hereby give my pemussion for my son/daughter Yn �o participate in compliance check with Saint Paul License Enforce nt and the Saint Paui Police Department. H'is/Her date of birth is � c� �'�- . P �'�2 3 g� Signature Date �n e . e icen s — d/b/a R & R Books � City's Ezh. # 5 — May 27, 1998 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Sude 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Kel4ogg Boulevard St. Paul, MN 55102 g�� RE: In the Matter of All Licenses Held by Jill D. Rasmuson, d/b/a R& R Books for the Premises Located at 674 Universiry Avenue West in St. Paul, License ID No. 32901; OAH Docket No. 11-2111-11700-3 Dear Ms. Palmer: Pursuant to the May 21� written request of Peter Pangborn, enclosed is an original and one copy of a subpoena issued to Sergeant Richard Wachal regarding the above-entitled matter. Sincerely, �, ,_—_-� a Ci LS n�-� �� C� LaVon Regan Legal Secretary Telephone: 612/341-7448 Ir Prowdi�g Impartial Heanngs for Government and Ciitizzens An Equal Oppo E mployer Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 �/�� - �... STATE OF MINNESOTA OFFICE OF ADMIl�iISTRATIVE HEARINGS ;;�."� HEARIIVG S[IBPOENA TO: Sergeant Richard Wachal, St. Paul Police Department 100 East 11�' Street, St. Paul, MN 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Administrative Law Judge Barbara L. Neilson of the Office of Administrative Hearings of the State of Minnesota, at St, Paul City Hall, Room 42, 15 West Keilogg Boulevard, in the City of St. Paul, Ramsey County, Minnesota, on the 9th day of June, 1998 at 9:30 o'clock in the forenoon, to appear as a witness in the matter of: All Licenses Held by Ji�l D. Rasmuson. d/b/a R& R Books for the Premises Located at 674 University Avenue West. St. Paul• License No. 32901: OAH Docket No. 11-2111-11700-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chief Administrative Law Judge, at Minneapolis, Minnesota this 27th day of May, 1998. cs, KEN� ETH A. NIGKOLAI Chief Administrative Law Jud e 612/341-7600 Subpoena requested by: vrginia Palmer, 612/266-8776 9$ STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARIlVGS HEAItING Si7BPOENA � *'i'a,"s+ TO: Sergeant Richard Wachal, St. Paul Police Department 100 East 11�' Street, St. Paul, MN 55101 GREETINGS: YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appear before Administrative Law Judge Barbara L. Neilson of the Office of Administrative Hearings of the State of Minnesota, at St, Paul City Hall, Room 42, 15 West Kellogg Boulevard, in the City of St. Paul, Ramsey County, Minnesota, on ihe 9th day of June, 1998 at 9:30 o'clock in the forenoon, to appear as a witness in the matter of: All Licenses Held bv Jiil D. Rasmuson. d/b/a R& R Books for the Premises Located at 674 Universitv Avenue West. St. Pauh License No. 32901: OAH Docket No._11-2111-11700-3. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kenneth A. Nickolai, Chief Administrative Law Judge, at Minneapolis, Minnesota this 27th day of May, 1998. Gs, � KEN� ETH A. NICKOLAI Chief Administrative Law Jud e 612l341-7600 Subpoena requested by: Virginia Palmer, 612/266-8776 OFFICE OFTHE CITYATTORNEY PegBtrJFCityAttorney ��_�� CITY OF SAINT PAUL � - � _' ��` ` `"' Norm Coleman, Mayor �i ,�, ts p, *� � t+- f• rt .:.l�n, /? F;� �:i" US .-. -.�:'�rl ��'vL ��._Y:IVIi'�� May 21, 1998 Judge Bazbara Neilson c/o Louise Cooper Office of Aduiinistrative Heazings 100 Washington Square, Suite 1700 Minneapolis, Minnesota 55401-2138 Civi1 Divirion 400 Ciry Hall IS West KellaggBlvd Saint Paul, Minnesom 55102 Telephone: 612 266-8710 Facsimile: 672 298-5619 VIA FAX AND U.S. MAIL RE: Licenses held by Jill D. Rasmuson d/b/a R& R Books for the premises located at 674 University Ave. W. in Saint Paul Our File Number G98-0156 Deaz Judge Neilson: The purpose of this letter is to request a subpoena pursuant to Minnesota Rules, part 1400.7000 relating to the above-mentioned contested case hearing that is scheduled to be heard befare you on Tuesday, June 9, 1998. This request is made of behalf of Ms. Virginia Palmer, the attorney assigned to this matter. The City of St. Paul licensing division will be calling this witness to testify regazding the incident which serves as a basis for the action against the licenses of Jill D. Rasmuson d/b/a R& R Books. In order to ensure this individual will be in attendance to testify, the City of St. Paul requests from the State Office of Administrative Hearings a subpoena for the following individual: 1. Sergeant Richard Wachal Saint Paul Police Department 100 East 11�' Street Saint Paul, Minnesota 55101 Page 1 9�-��3 The hearing is scheduled to start at 9:30 a.m. on Tuesday, June 9, 1998, in Room 42, St. Paul City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102. If you need additional information or have any questions regazding this request, please do not hesitate to call me at 266-8776. Thank you for your consideration in this matter. Sincerely / / Peter P. Pangborn Pazalegal Page 2 OFFICE OF THE CITY ATTORNSY 4 Peg Bi�k, Crry Attorney OF SAINT PAUL leman, Mayor �� M lVL La %� Mi �\'N Dea Plet lice� The. Offic N U p a r N ✓ iJ � O iA � F� O C� � I--'� O �'h \ � � O � O � m ��r c�o tv p� m o zs m � td O �" O I-° Sv 1—' F'� � tn �$ F'� � N CY � � � �] �$ O � O W z��roz • U. V• (D (D � � �$ W � ci' F-' vt �-�$ f� O r N cr � O � i-'• � c m co µx �m m � F' V• � � O Q4 o � _ _ „;. _.,.�V`f �E� 7J �it�i � � �Y,I�l i't�i� � � � � I � o O S 'T1 m � n � � � � � O [ � '` r Civi1 Divisiort 400 Cuy Ha11 IS W¢st X¢[[agg Blvd nt¢ SSIO2 O �n O � ^ O '� � � � a � �2 �= x �� a 2 � {�e � .�^. = o i o � = J N � � a. Z � 0 A � Telephonc 671266$710 Faaimi[e: 6I2 29&5619 date and place concerning all . � � '" --,� `'.�! , ! V ` � \� i e �� ' ' � �*+»" . ��,, �-��*�� INa from the State of Minnesota � yg �� The Council of the City of Saint Paul has the authority to provide for hearings conceming licensed premises and for adverse action against such licenses, under Chapter 310, including sections 310.05 and 310.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non- intoaficating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penaities or conditions. Evidence will be�presented to the judge which may lead to adverse action against a11 the licenses held at the above premises as follows: On or about April 6, 1998, an employee of the licensed establishment sold segually eaplicit material to a minor. This is a violation of Minn. Stat. § 617.293 subd. l(a) and subd. 1(b), and Saint Paul Legislative Code § 276.02(a). The hearing will be conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Admiiustrative Law Judge wiil have all parties identify themselves for the record. The City will then present its witnesses and evidence, each of whom the licensee or attorney may , cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the City's attorney may cross-examine. The Administrative Law Judge may in addition heaz relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding arguments may be made by the parties. Following the hearing, the Judge will prepaze Findings of Fact, Conclusions of Law, and a specific recommendation for action to be taken by the City Council. You should bring to the hearing all documents, records and witnesses you will or may need to support your position. Subpoenas may be available to compel the attendance of witnesses or the production of docuxnents in conformity with Minnesota Rules, part 1400.7000. if you think that this matter can be resolved or settled without a formal hearing, please contact or have your attorney contact the undersigned. If a stipulation or agreement can be reached as to the facts, that stipulafion will be presented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. If the licensee or their legai representative fails to appear at the hearing, the licensee's ability to challenge the allegarions wiil be forfeited and the allegations against them which have been stated earlier in this notice may be taken as true. If non-public data is received into evidence at the hearing, it may become pubiic unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. Notice of Hearing - Page 2 If you have any questions, you can calI me at 266-8710. ��✓ `"'� Very truly yours, � I .✓v✓.�J �, Vuginia D. Palmer Assistant City Attorney cc: Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Peggy Byrne, Exec. Director, Summit-University Planning Council, 627 Selby Ave., St. PauI, MN 55104 . Notice of Hearing - Page 3 O (� n '"� � � � O s 'z7 m � � � -3 � � � � ro m � �r t+ �+ p c r + hy Y i�i Fv ;�v�NO z Y� � O �h W � c � N c�i N N � O �, 4v S+� N KS F-� m �3 O 1 �' O �' i-' O k-'� F O 4-'• O � � � � � � O � � � � . � N. � � V� P� �$ vi � w � N ct O F-w F-� � N x m w � �• � � � m � i . n u o =�n a � � � �. � R z�� 0 a n o � _ N A � A x O A � � � r� i � ` �� n -. .q � r ' i .... �:::�� .. � �,.� � u. x ��Ofi � ., .<, �� -� 1`+a Peg 8,'r'{ C,�e�� dur.m.ey ,• � , . � . . . ' w `y ^ � — � � — � �7 A— !__W.� �. cITY OF SATNT PaUL �N,r ��,s�� ; .NormCofrman,Maya� OODCrryHali . Teiepnoa6 !SWestAeflohgBhd Farsimile; 6727A8-SGJ9% S¢int Pavl. ,41m�soM SSiD2 ; i j ' i ' � FAX TRANSMISSION i DATE: April 2, 9988 TO: Judge Babara Neilson clo Lauise Cooper Office otAdministrative Hearings NUMBER OF PACyES (including cover p2ge): 3 FROM: Peter Pangpom Paralegal St. Paui Gity Attorney's Office 4D0 City Hail � � FAX No.: 349�2665 � � � � , FAX No.: 298-5619 �, If you do not receive all pages ot7his fransmisaion, please contacT: Peter Pangbom Telsphone No. 285-8776 � i i i0'd S99Z6bz6 O1 i i I i i i t � � � 3�I��0 SJ,�NJOl1C .11IJ WO?J� zz�6e 8661—Z2—.lCW vrrtt,� vr tnc t,tl i H.� i vru��z i Peg 8nk, Qry Aeomey n ! f �� 7�.�J ' CTTY OF SAINT PAUL �NOIm (�OtEnlah, Mayor May 2l, 1998 Ctvf! DIvls:on 400 Qry Hall l5 wesf KeUoggBf�d. 6atrt7 Poul, �nnesom 55101 . 7 fephone: 672166-8%!�1 Facsimfte: 612 29F-5619� VIA FAX AND I1.S. MAIY. Judge Bazbara Iveilson c/o Louise Cooper Office ofAdministrative I-Iearings 100 Washington Square, Suite 1700 Minneapolis, Minnesota 55401-2138 12E: Licenses held by Sill D. Rasmuson d/b/a R& R Books for the premises lo�ated a4 674 Univer5ity Ave. W. in 5aint P2u1 pur File Number G98-0156 Deaz Judge Neilson: T7te purpose of this letter is to request a subpoena pursuant to Minnesota Rules, part 140p.7000 relating ta the above-mentioned contested case hezring that is scheduled to be heat'd before you on Tuesday, June 9, 1998. T1us request is made of behalf of Ms. Vzrgznia Palmer; the attomey assi�ned to this matter. The City of St. Paul licensing division tvi11 be calling this �vitness to tesfify reguding the incident which serves as a basi5 for the action against the licenses of 7i11 D. Rasmuson d/b/a R& R Baoks. � In ordez to ensure this individua] will be in attendazlce to testify, the City df St. Paul requests from the State Off'ice of Adzziinistrative Hearings a subpoena for the followzng individual: , 1. Sergeant Riekard W achal Saint Pau1 Police r7epartmet�t 100 EaSt �1` Street Saint Paui, iVIinnesota 55101 ze'd S99Z65E6 Ol i Page 1 � l I , i 3JI��0 S.I�Nb�11C J,1IJ W02i� £Z:60 866ti-ZZ-1,tiW ; � 9� �� ; � The hearing is scneduled to start at 9:30 a.rn. on Tuesday, June 9, 1948, in Roos 42, St. Paul City Hall, 15 West Keliogg Boulev2rd, St. Paul, vIN 55102. 1 i Ii you need additional infomaation or l�ave any questions regarding this request, pt�ase do not hesitate to call me at 266-8'776. "I'hank you for your consideration in this matter_ ' Sincerely Peter P. Pangborn Paraiegal , I � � � � Pa�e 2 F0'd S99Z67�6 Ol 3JI��0 SJ,3Nb011b'.11I� WOa� � i i. � �, �Z:60 866L-1Z-.ltiW MAY.-21'98(THU) 10�25 TRANSACTION REPORT Reception Transaction(s) completed OFFICE OF ADM[N.HEARING TEL:6123492663 NO. TX DATE/TIME DESTINATION DURATION PGS. REStiLT MODE 859 MAY.21 30:23 612 296 5619 �°O1'13' 003 OK N ECM P. 001