97-1508Council File # '�J
Green Sheet # 62179
Presented By
Referred To
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA
f�
Committee: Date
2
�
6
7
8
9
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
36
37
38
39
40
WHEREAS, the City of Saint Paul, Office of License, Inspections and Environmental
Protection (LIEP) initiated an adverse action relating to the cigazette license held by Little
Grocery for the premises located at 172A University Avenue West, Saint Paul, Minnesota,
seeking adverse acfion based upon alleged violatians of �324.07 of the Saint Paul Legislafive
Code and §609.685 of the Minnesota Statutes, involving a sale of cigarettes to a minor; and
WHEREAS, an administrative hearing was held befare Administrative Law Judge Susan
Weisman on September 23, 1997, with parties each submitting oral testimony and documents
into the record at the hearing; and
WF�REAS, the administrative law judge issued Findings of Fact, Conclusions and a
Recommendafion dated October 22, 1997 in which she found that the City had proved that an
employee of Little Grocery sold a package of cigarettes to a 14-year old girl on June 21, 1997 `
wSthout asking for identification and in violation of the law; and
WHEREAS, Saint Paul Legislative Code §310A5(k)(vii) pernuts the unposition of the
costs of the hearing against the licensee when the violation involves the sale of tobacco to a
minar; and
WHEREAS, a public hearing was held befare the Saint Paul City Council on December
3, 1997, to consider the report of the ALJ and the licensee was represented at that hearing by his
attorney; now therefore
BE IT RESOLVED, that the Council of the City of Saint Paul, after due deliberation
based upon all of the evidence contained in the files, records and proceedings herein, including
the documents and e�chibits submitted to the administrative law judge, the Findings of Fact,
Conclusions and Recommendation submitted after the hearing and the arguments of counsel at
the hearing, does hexeby order:
1. That the Findings of Fact, Conclusions and Recommendation of the
Administrative Law Judge be accepted as the findings and conclusions of the
Council in this matter and be incorporated herein by reference.
2. That the recommendation for a fine of Two Hundred Doilars
($200) is adopted and said fine is nnposed upon the cigazette
license held by Little Grocery, located at 1724 University Avenue
West, and said fine shall be paid within thirty (30) days of the
adoption of this resolution.
97-�So�
1 3. That pursuant to Saint Paul Legislative Code §310.05(k)(vii), the licensee shall
2 pay costs of the contested hearing in the sum of One Thousand Two Hundred and
3 Eighty-Four pollars and Forty-T1uee Cents ($1,284.43.), within thirty (30) days
4 of the adoption of this resalution.
5
6 A copy o£this Resolution, as adopted, shatl be sent by first class mail to the Licensee and the
7 Administrative Law Judge.
8
3y:
+ppx
Y�
Requested by Department of:
By:
Form Approved by City Attorne
By: � G S
Approved by Mayor for Submission to Council
By:
Adopted by Council: nate �] e. . t' 1\'1q�
�."_'_"_`__
Adoption Certified ty Council Secretary
�� �
DATE 1111MSED
GREEN SHEET
�
s2i�s
December 9, 1997
Councilmember Megazd
S7 9E ON CWNCIL AGEIOA BV (OAT�
DECCIQt7P•I 1�, 19�
�FxIBER Wrt
ROUTING
'�T' �'1Ta.-i
TOTAL # OF SIGNATURE PAGES
on,►,�sowcc,oa
❑ arvllnolUEY � arvcxixK _
❑RYYKYLtFAYICitOYI ❑Mi1NCY�LtFM/-0L[6
❑wvoRroR�a.mrwn ❑
(CLIP ALL LOCATtONS FOR SIGNA7URE)
F inali�ino Ciry Coimcil action taken December 3, 1997 concerning adverse action against cigarette license held by Litfle
Grocery, 1724 University Avenue West.
PLANNING CAMMISSION
CIB COMMITfEE
CIVIL SERVICE CAMMISSION
� m� a�so�rm �er ww�a unee. a� sam� e�mm�e�n
VES NO
Has Mun ParaoM�m ever hcen a dty empbyee7
YES NO
Ocea this P���� P� a Sldll not nwma��YP�sed EY �Y �R� �Y �Ployee?
YES NO
la this P���m a taipeted vendoR
YES t�
dain all ves a�mwe�s an aeoara[e sheet aM attach to arem sheet
AMOUNT OF TRANSACTION
COST/REVENUE BUDGETm (qRCLE ONE)
ACTIVITYNtMBER
YEE NO
FlNnNGW.INFORMATION (E%PWN)
97 �, I �" o8 '
Interdepartmental Memoranduxn
CITY OF SAINT PAUL
DATE: December 5, 1997
TO: Nancy Anderson
Assistant Council Secretary
310 City Hall
FROM: Peter Pangborn
Paralegal
400 City Hall
RE: Consent Agenda - December 17, 1997
l. Little Grocery
Nancy:
Attached is the signed resolution identifying the penalty imposed
by the City Council on Little Grocery. Please schedule this matter
£or the Consent Agenda for the council hearing on Wednesday,
Deaember 17, 1997.
Thanks.
Sincer,ely,�
�f •� �
l,1���'
Peter P. Pangborn
� "==, �
�EC 0 8 j997
�
STATE OF MINNESOTA
OFFICE OF ADMII�ISTRATNE HEARINGS
100 Washington Square, Suite 1700
100 Washington Avenue South
Minneapotis, Minnesota 55401-2138
October 22, 1997
City Council of the City of St. Paul
310 City Hat{
15 West Kellogg Boulevard
St. Paul, MN 55102
q�-1SOf�
RE: Re: The Cigarette License Held By Little Grocery, d/b/a Little Grocery, For the
Premises Located At 1724 University Avenue West, in St. Paul, Minnesota, License l.D.
No. 88646.
Dear City Council Members:
Enclosed please find a copy of the Findings of Fact, Conclusions and Recommendation
in this matter. Copies have been served upon the parties by first class mait. The
remaining fite documents, including ali exhibits entered into evidertee and the duplicate
cassette tapes of this proceeding, shall be fonxarded to you under separate cover from
the Office of Administrative k{earings within the next week. {4 you have any questions
about the transmittai of the record, piease contact Nancy Thomas, Docket Cierk, at 341-
7615. Thank you.
Sincerely,
�L�� �' �.
Susan R. Weismart
Administrative Law Judge
cc: Virginia Paimer, Assistant City Attorney
Richard Sands, Attomey at Law
Providing Impartial Hearings for Government and Citizens
A Equal Opportuniry Emp
Administrative Law Sec6on 8 Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665
�
q'1-I S08'
THIS ORDER CONTAINS NON-P11BL1C DATA 56-2111-11248-3
STATE OF MINNESOTA
OFFICE OF ADMiNISTRATIVE HEARINGS
FOR THE CITY COUNCIL OF THE C1TY OF ST. PAUL
Re: The Cigarette License Heid By
tittle Grocery, d/b/a Little Grocery,
For the Premises Located At
1724 University Avenue West,
!n St. Paul, Minnesota,
License I.D. No. 88646.
FINDINGS OF FACT,
CO(VCLUSIONS
AND RECOMMENDATION
The above-entitled matter came on for hearing before Administrative Law Judge
Susan R. Weisman, on September 23, 1997, at Room 22Q, St. Paul City Hall, 15 West
Keifogg Boulevard, St Paul, Minnesota, 55102. The record closed at the conciusion of
the hearing.
Virginia D. Palmer, Assistant City Attomey, and Peter Pangbom, Parafega{, City
of St. Paut, 40� City Hall, 15 West Keliogg Boulevard, St. Pauf, Minnesota 55102,
appeared on behalf of the City of St. Paul. The store owner, Tim Stoffel, appeared with
counsei, Richard Sands, Attomey at Law, 168 Nina Street, St. Paui, Minnesota 55102.
This Report is a recommendation only, not a finai decision. The Councii of the
City of St. Paul witl make a final decision in this matter after a review of the record, and
may adopt, reject or modify the Findings of Fact, Gonclusions and Recommendations
contained herein. Pursuant to Minn. Stat. § 14.61, the final decision of the City Council
shafi not be made untif this Report has been made available to the paRies to the
proceeding for at least ten (10) days. An opportunity must be afforded to each party
adversely affected by this Report to file exceptions and present argument to the City
Council. Parties should contact the Gity Gouncil of the Ciry of St. Paui, 310 City Halt,
St. Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or
presenting argument.
STATEMENT OF THE ISSUES
The primary issue in this matter is whether or not an empioyee of the license
holder soid cigarettes to a minor under the age of eighteen (18) on Saturday, June 21,
1997, within the ficensed premises, constituting an offense under Minn. Stat. § 609.685
and the City of St. Pau! Legislafive Code, Section 324.07, and, if so, what sanction,
if any, is recommended.
Based upon the record presented and aif of the proceedings herein, the
Administrative Law Judge makes the fotlawing:,
q�_iso8'
FiNDiMGS OF FACT
1. Littie Grocery is a small grocerylconvenience store, measuring approximately
17 feet by 33 feet, {ocated at 1724 University Avenue West, at the comer of University
Avenus West and Aidine Street, in St. Rauf, Minnesota 55104.
2. The store is owned and operated by Tim Stotfel. Mr. Stoffel purchased Little
Grocety approximately thtee years ago. Prior to his purchase of Little Grocery, Mr.
Stoffel managed a Tom Thumb store for approximately four years.
3. Little Grocery is licensed by the City of St. Paui for the sale of cigarettes,
license f.D. No. 88846. The license expiration date is March 31, 1998. (F�c. 2.)
4. Atthough Mr. Stoffei works most Little Grocery shifts, on June 21, 1997, Mr.
Stoffef did not work at the store. The store was staffed from 9 a.m. to 9 p.m. on that
date by one empfoyee, Kevin Bohdan. Mr. Stoffel hired Kevin Sohdan in approximately
February of 1997, fiaving known him previousiy as a customer. Mr. Sohdan worked
often at Littls Grocery on Saturdays.
5. Mr. Bohdan was bom on November 4, 1973, and is presently 23 years of
age. Mr. Bohdan has worked at Littie Grocery on a part-time basis, primarity as a
cashier and stock person, since being hired in approximately February of 1997. He
also performs other store tasks for Mr. Stoffel, as needed. Mr. Bohdan lives in Faicon
Heights, Minnesota, and has separate, full-6me empioymentwith B.F. IVe(son, fotding
cartons, where he has been empioyed for approximateiy four or fve years.
6. Mr. Stoffel provided in-store training to Mr. Bohdan after hiring him, covering
many aspects of the store's operations. Mr. Stoffel's training induded instructions
about how and when to check customers for age identification, and also covered such
topic as stocking she{ves, operating the a{arm system, cashiering, and opening and
ctosing the store.
7. Mr. Stoffei specifically instructed Mr. Bohdan not to selt cigarettes to minors
and instructed him to ask customers to show either a Minnesota driver's Iicense, or
Minnesota picture identification of another sost, before going forward with a sale of
cigarettes, if in doubt about whether a customer was of legal age.
8. On June 21, 1997, and at the hearing in this matter, Mr. Bohdan's
understanding of the legal age requirement for the purchase of cigarettes in Minnesota
was that an individuai has to be twenty-seven (27) years old to iegaily purchase
cigarettes. Mr. Bohdan recalis being instructed by Mr. Stoffel to check the photo
identification of any individuai who didn't look at feast 27 years o{d and not to seil
cigarettes to minors. Mr. Stoffel told Mt. Bohdan tfiat if no positive identification was
provided by a customer in response to his request, no cigarettes couid be sold to that
customer.
9. Business was very brisk at litt�e Grocery on Saturday, June 21, 1997, due to
the presence of a week end car show being held a short distance away on Un+versity
Avenue West, at the Porky's Restaurant parking lot. Mr. Bohdan worked alone the
entire day. Customers streamed in and out steadiiy alf day tong. Mr. Bohdan recatis it
°l'1-\ S o 8�
as the h+ghest volume day he has ever worked at Little Grocery and estimates #hat
hundreds of persons entered the store during the course of the day.
10. J.T., a 14 year oid girl, bom March 2�, 1983, and H.M., a �4 year old girl,
bom Aprii 23, '1983, residents of Bumsvilie, Minnesota, attended the car show on June
21, 1897, with J.T.'s father. J.T. and H.M. are close friends and c{assmates. On a prior
occasion (date not specified in the record), J.T. and H.M. attended another car show
with J.T.'s father at this same location. On both occasions, the giris ieft the car show
premises and went for a walk an and about University Avenue West, in the nearby
vicinity of the car show.
11. On the eariier occasion when they attended a car show at Porky's, J.T. and
H.M. met two young men or boys, ages and identity unknown, named Josh and
Jeremy. J.T. and H.M. d+d not leam Josh and Jeremy's sumames or addresses. While
talking, Josh and Jeremy showed J.T. and H.M. the Little Grocery and told them that
someone at Littie Grocery sefis cigarettes to minors.
12. On June 21, 1997, J.T. and H.M. arrived at the car show around 6:00 p.m.,
and went for a wafk along llniversity Avenue West shortfy afterward, around 630 p.m..
Whfle they were out walking, J.T. decided to buy and try smoking cigarettes. She had
never purchased cigarettes prior to this time. J.T. and H.M. remembered that Josh and
Jeremy had told them on their prior visit that they could buy cigarettes at Little Grocery
and so they decided to go there.
13. J.T. and N.M. entered Littie Grocery together sometime between 6:30 and
7:30 p.m.. Mr. Bohdan was cashiering. J.T. asked Mr. Bohdan for two packs of
cigarettes, a pack of Marlboro Go{d 100's and a pack of Marlboro Mentfiols. Mr.
Bohdan did not ask to see any photo identification and J.T. provided none. J.T.
purchased two packs of Mariboros, a pack of Mariboro Gofd 100's and a pack of
Mariboro Menthofs. J.T. paid for the cigarettes witfi cash. The two giris then ieft Little
Grocery and resumed their waik.
14. A short time tater, whi4e continuing their wa4k, .l.T. and 4i.M, encountered
Josh and Jeremy. The four of them waiked together for awhile. J.T. began smoking
one of the Mariboro Go18100 cigarettes white they walked.
15. At approximateiy 8:00 p.m., Officer Stuart C. Burke, an 8 and 1/2 year
veteran of the St. Paul Pofice force, observed the foursome as he drove by in his squad
car near the intersection of Sherbume and Albert, an intersection close to and within
short walking distance from the University Avenue West corridor where Porky's is
located. Officer Burke observed that one of the girls, J.T., was smoking a cigarette. He
observed that she looked "obviousiy" underage. (Ex. 1.)
16. Q�cer Burlce puiled over and confronted the foursome. He asked J.T. her
age and she replied that she was 14 years oid and identified herseff. Ofifiicer Burke
placed .l.T. in his squad car and checked S.T.'s purse 4or weapons. He observed two
packs of cigarettes in her purse, a pack of Marlboro Goid 100's and a pack of Madboro
Menthois. Officer Surke aiso asked H.M. for identification and spoke with both giris
about the illegality, as minors, of ¢ossessing and smoking cigarettes. (Ex. 1.)
q�_�sos'
17. While O�cer Burke was talking with J.T, and H.M. and writing up a juvenile
tag on J.T., Josh and Jeremy approached Officer Burke and tofd him that J.T.
purchased the cigarettes from a cleric at Little Grocery. Officer Burke asked d.T. and
H.M. if they could identify the clerk if they saw him again. They answered in the
a�rmative. Officer 8urke then drove J.T. and H.M. to the Little Grocery store. (Ex. �.)
18. Mr. Bohdan was standing outside the entrance of Little Grocery, taking a
moment's break, when the squad car pu0ed up. The giris identified fNr. Bohdan from
within the squad car, while Mr. Bohdan was standing outside the entrance. (Ex. 1.)
19. Officer Burke approached Mr. Bohdan while J.T. and H.M. remained in the
squad car and asked him for identification. Mr. Bohdan provided his Minnesota driver's
{icense. O�cer Surke infosmed Mr. Sohdan that he believed Mr. Bohdan had soid
cigarettes to J.T.. He asked Mr. Bohdan to step over to the squad car. He asked Mr.
Bohdan if he recalied seliing cigarettes to either of the two girfs who were seated inside
the squad car. Mr. Bohdan responded, "Protrably ° O�cer Burke asked Mr. Bohdan if
he knew he was supposed to ask for identification if persons appeared to be underage.
Mr. Bohdan reiterated his understanding that 27 years of age was tfie fegal age for the
purchase of cigarettes. Officer Burke asked Mr. Bohdan if J.T. and H.M. appeared to
be at ieast 27 years of age and if he had requested iderrtification from either giri. Mr.
Bohdan shrugged his shoulders. Mr. Bohdan tofd Officer Burke that he wanted to
cooperate and that he had never been in trouble before. He gave Officer Burke Mr.
Stoffel's business card, which contained basic information about tittle Grocery.
20. Officer Burke issued a citation to Mr. Bohdan at approximately 8:3D p.m.,
citing him with a violatiori of Minn. Stat. § 609.685, the sale of tobacco products to
minors, specifying the type of product as cigarettes. (Exs. 1, 7.) Officer Burke
exp{ained the citation and Mr. Bohdan understood Officer's Surke's expianation. Mr.
Bohdan asked Officer Bur1ce what the sanction might be for a violaUon of Minn. Stat
§ 609.685. Officer Burke responded that a fine of severaf hundred doliars would be
4ikely.
21. After issuing citations to Mr. Bohdan and to J.T., Officer Sur4ce re{eased the
rivo giris. He confiscated the two packs of cigarettes, taking them into potice custody.
(F�c. 1.)
22. Mr. Bohdan reported the incident to Mr. 5toffei on Sunday, June 22, 1997,
in the late aftemoon, one day after the incident occurred.
23. Mr. Stoffei maintains a security system at Little Grocery which inciudes a
videatape monitoring system. Mr. Stoffel uses the video tape to study tra�c pattems
in and out of the store. The video tape system is set-up to reiay an eight-hour video-
tape to Mr. Stoffei's home. Sy the time Mr. Sohdan contacted Mr. Stoffef to �eport the
incident, Mr. Stoffei had already rewound the video-tape of Saturday's in-store
transactions. Mr. StoffePS generai practice is to rewind the tape on a dairy basis for re-
use the foliowing day uniess there is a known problem.
24. Mr. Bohdan recaAs feeling "intimidated" and "confused" by Officer Burke
when Officer Burke confronted him on the eve�ing of June 21, 1997, as he had no prior
arrests or citations of any type and no prior deaiings with police officers.
q�-�sag'
25. Mr. Bohdan has no specific recoilection of setling cigarettes to J.T. on June
21, � 997, although he does recall that many juvenile girls and other customers came
into �ittle Grocery on that date, due to the nearby car show.
26. Mr. Sohdan does not recalf stocking or se{ling Martboro Menthols on any
occasion and is unce�tain as to whether or not Little Grocery carries or has ever cartied
that product.
27. Littie Grocery's entire stock of cigarettes is stored behind the counter at the
front of the store in overhead display racks which are accessible only by the store clerk
from behind the counter, Customers are unable to reach around the counter to obtain
cigarettes without cierk assistance.
28. Mr. 5toffel stocks Marlboro Gold 100's and Mariboro Menthols at Little
Grocery. He carries Mariboro Mentho{s in soft-packs onfy.
29. in his written police report, Officer Burke did not specify the packaging of
the two cigarette packs he confiscated as either being soft-packs or hard-packs. He
merely stated the brand and specific name of the cigarettes. The cigarette packs were
not produced or introduced into evidence at the hearing in this matter.
30. Other than the incident described herein, Mr. Stoffef has had no negaYive
interactions or troubte with Mr. Bohdan as an employee.
31. Although Mr. Stoffel has sufEered ane robbery at Litt1e Grocery since his
purchase of the store, he has had no prior troubie with the City of St. Paul as a store
ownerJoperator. To the contrary, on March 24, 1997, Robert Kessier, the Director of
the City of St. Paui's Office of License, Inspection and Environmental Protection (Office
of LIEP), issued a fetter of commendation to Mr. StoffeULittie Grocery, thanking Mr.
StofEel for his difigent compliance with the Ciry's ordinance on the sale of cigarettes to
minors, citing him for being a good �eighbor in the community. In the letter, Mr. Kessler
informed Mr. Stoffel that the O�ce of 11EP had conducted a recent tobacco safes
compiia�ce check of LitUe Grocery and that Mr. Stoffel's sales clerk did not seli tobacco
products to an underage person who attempted to purchase cigarettes. (F�c. 8.)
32. Neither Mr. Stoffel nor Mr. Bohdan knew J.T. or H.M. before the occurrence
of this incident, and neither Mr. Stoffef nor Mr. Bohdan are aware of any reason why
either J.T, or H.M. would want to cause troubie for the business known as Little Grocery
or for either Mr. Stoffet or Mr. Sohdan as individuals.
33. In a subsequent Juvenile Court proceeding, J.T. was ordered to pay a
$20.0a fine for a first offense for the possession/use of cigarettes by a minor.
34. By a letter Notice of Viotation dated June 30, 1997, Mr. Stoffel was notified
that the Director of LIEP wouid recommend that advesse action be taken aga+nst Little
Grocery's cigarette license based on the aileged violation of Minn. Stat. § 609.685 and
St. Paul Legis{ative Code § 324.97 by Mr. Bohdan on June 21, 1997. (Ex. 3.) Mr.
Stoffel timely appeaied that Notice and the matter was set on for hearing.
9�-tSag"
35. The No6ce of Hearing in this matter is dated Juty 17, 1997, and is signed by
Virginia D. Patmer, Assistant City Attomey. Service was made upon counsei for Mr.
Stoffelllittle Grocery, by U.S. mail on .luly 17, 1997. {Ex. 4.) The matter was later re-
scheduled twice. The first Notice of Re-scheduled Hearing is dated September 5,
1997, and the second is dated September 19, 1997. Both of the re-scheduled hearing
noUces are signed by Peter Pangbom, Paralegai. Service of the first and second re-
scheduled hearing notices was made upon counsel for Mr. Stoffel/Littie Grocery, by
U.S. mail on September 5, 1997, and September 19, 1997, respectively. (F�cs. 5, 6.)
Sased upon the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLISS{ONS
1. The City Councif of the City of St. Paul and the Administrative Law Judge
have jurisdiction in this matter pursuant to Minn. Stat. sections 14.50 - 14.67, and the
St. Paui Legislative Code, §§ 310.05 and 310.06.
2. The City of St. Paui has fulfiiled ali relevant procedural and substantive
requirements of law and rufe.
3. The City of St. Paui has provided proper notice of the hearing in this matter.
4. The City of St. Paul has the burden of proof by a preponderance of the
evidence to establish the violations for which an adverse action is proposed.
5. Chapter 310.06 (a) and (b)(6)a of the St. Paul Legislative Code provides in
pertinent part as fo4lows:
"Sec. 310.06. Revocation; suspension; adverse
actions; imposition of conditions.
(a) Council may take adverse action. The council is
authorized to take adverse action...against any or all
licenses or permits, licensee or applicant for a license,
as provided in and by these chapters... Such actions
shall be initiated and carried out in accordance wiih
the procedures outline(d) in section 310.05...."
"(b) Basis for action. Such adverse action may be based
on one (1) or more of the foflowing reasons, which are in
addition to any other reason specificaHy provided by law
or in these chapters: ...(6)a. The license or applicant (or
any person whose conduct may by faw be imputed to the
licensee or appiicant) has violated, or pertormed any act
which is a viofation of any of the provisions of these
chapters ar of any statute, ordinance or regulation,
reasonabiy related to the licensed activity, regardless of
whether criminal charges have or have not been brought
in connection therewith;.. °
q�_�SoB'
6. Chapter 310.17 of the St. Paui Legislative Code provides in pertinent part as
follows:
"Licensee's responsibility. Any act or conduct by any
cierk, employee, manager or agent of a ticensee, or by any
person providing enteRainment or working for or on behalf
of a licensee, whether compensated or not, which act or
conduct takes piace either on the ticensed premises or in
any paricing lot or other area adjacent to...the licensed
premises, and which act or conduct violates any state or
federai statutes or regulations, or any city ordinance, shall
be considered to be and treated as the act or conduct of
the ficensee for the purpose of adverse action against a!1 or
any of the licenses held by such licensee...."
7. Chapter 324.09 (a) and (b) of the St. Paul Legislative Code provide in
pertinerrt part as follows:
"License required. (a) No person shalt self or offer for safe
at retai! within the City of St. Pau! any tobacco, or in any
manner represent or hold himself or herseif out as one who
selis or offers for sale at retaif any tobacco...without a license.
(b) A tobacco vending machine may be located in a public
accommodation, provided that: (1) A{I tobacco vending
machines shail be operable only by the activation of an
electronic switch operated by an empfoyee of the establishmern
before each sale, or by insertion of a token Qrovided to the
purchaser by an employee...: and, (2) The machine shalf be
located in the immediate vicinity, plain vfew and control of a
responsibie empioyee so that ali tobacco purchases wili be
readily observable by that employee...."
8. Minn. Stat. § 509.685, SALE Of TOBACCO TO CHitdREN, provides in
pertinent part as follows:
"Subdivision 1. Gefinitions. ... (a) "Tobacco" means
cigarettes...."
"5ubdivision 1a. Gross misdemeanor. (a) Whoever selis
tobacco to a person under the age of 18 years is guifty of a
gross misdemeanor. (b) tt is an affirmative defense to a charge
under this subdivision if the defendarrt proves by a preponderance
of the evidence that the defe�dant reasonably and i� good
faith relied on proof of age as described in section 340A.503,
subdivision 6."
"Subdivision 2. Misdemeanor. Whcever fumishes tobacco...
to a person under the age of 18 is guilty of a misdemeanor."
a�_�so�
'Subdivision 3. Petty misdemeanor. Whoever possesses,
smokes... or otherwise ingests, purchases... tobacco... and is
under the age of � 8 ysars is guilty of a petty misdemeanor. ...."
9. The City of St. Pau4 has proved by a preponderance of the evidence that an
employee of the licensed busi�ess known as Littie Grocery, Cigarette License No.
88646, namely, Kevin Bohdan, sold c+garettes to a person under the age of 18, namely,
J.T., a gi�i '14 years of age, on June 21, 1997, on the premises of Littfe Grocery during
normal business hours, without requesting or relying upon any proof of age of the minor
child, J.T., or her companion, fi.M., in violation of Minn. Stat. § 609.685 and St. Paul
Legisiative Code, Section 310.17.
1D. The licensee, Tim Stoffel, owneNoperator of Littie Grocery, has
demonstrated by.a preponderance of ihe evidence that at the time of the incident
discussed herein on June 21, 1997, cigarettes were stored properiy on the premises,
consistent with St. Paul Legislative Gode, Section 324.Q1.
11. The above Conciusions are amved at for the reasons set forth in the
Memorandum which foifows and which is incorporated into these Conclusions.
Based upon the foregoing Findings of Fact and Conclusions, the Administrative
Law Judge makes the following:
RECOMMENDATiON
IT IS RESPECTFULLY RECOMMENDED that the Councii of the City of St. Pauf
adopt the recommendation of the Assistant City Attomey, Virginia D. Paimer, to assess
a$200.00 fine against the license of Littte Grocery (the standard fine for a first-time
violation) or, in the altemative, that the Council take any other reasonable action within
its discretion, consistent with the Findings and Conc{usions, herein.
Dated: October �� 997.
,�.�-.� �• G�1..��� �
SUSAN R. WEfSMAN
Administrative Law Judge
NOTlCE
Pursuant to Minn. Stat. § 14.62, subd. 1, the City Counci4 is required to serve
its final decision upon each party and the Administrative Law Judge by first class mail.
Reported: Taped. Two tapes.
��?-1So8'
MEMORANDUM
The persons who testified in this matter were as follows: The two giris, J.T, and
H.M.; Police OfFicer Burke; Little Grocery empioyee, Kevin Bohdan; and, Little Grocery
owner/operator, Tim Stoffel.
At the hearing, Mr. Bohdan des+ied having admitted to Officer Burke that he had
sold, or had probabiy soid, cigarettes to J.T.. Mr. Bohdan testified that he was
intimidated and confused when confronted by Officer Burke because he had never
been in a confrontation with a pofice officer prior to this incident. At the hearing, Mr.
Bohdan testified that he recailed only that the store was very busy on the day of the
incident and that many juveniie girts had entered the store. His testimony was
consistent in most other respects with the testimony and written report of Officer Burke,
the investigating officer.
The Administrative Law Judge is persuaded by a preponderance of the
evidence presented that Mr. Bohdan did, indeed, sell cigarettes to J.T.. Although J.T.
couid not recalt the exact price she paid for the cigarettes, or the exact names or
packaging (soft-packs and/or hard-packs) she purchased, she testified that she
believed both packs were Marlboros and she recalied that she asked for them by name
at the time she purchased them. The testimony of J.T.'s friend, H.M., corroborated the
testimony of J.T. in all maJor regards. 7he testimony of the two giris was consistent,
aiso, with the testimony and written report of Officer Burke.
Mr. Sohdan, at the time of the incident and at the hearing, stated that he
believed that 27 was the legai age for the purchase of cigarettes. 7he giris, J.T. and
4i.M., each took approximately their true ages, 14 years of age, and under no stretch of
the imagination coutd they pass for women aged 27 or oider. The record is devoid of
evidence showing that Mr. Bohdan requested proof of identification from J.T. before
sefling her cigarettes.
The fact that Mr. Bohdan did not repoR the incident to Mr. Stoffel u�til the
foliowing day, a Sunday, in the late aftemoon, after Mr. Stoffet had erased the video-
tape of the store's Saturday transactions, damages his credibility. If Mr. Bohdan had
not soid the cigarettes to J.T., the video-tape may have provided definitive proof of his
innocence. By waiting one fuli day before contacting Mr. Stoffef, Mr. Bohdan knew or
should have known that the video-tape would be rewound and recorded over.
The record makes clear that Mr. Stoffe! has made consistent attempts to
operate a{awfu� business at titt{e Grocery and to provide proper training and
supervision of his employee(s). His commendation by the City's Office of LiEP
provides evidence of those efforts. This factor may be taken into account by the City
Councii in its review of this matter and its final determinafion of what, if any, sanction is
appropriate.
S.R. W.
Council File # '�J
Green Sheet # 62179
Presented By
Referred To
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA
f�
Committee: Date
2
�
6
7
8
9
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
36
37
38
39
40
WHEREAS, the City of Saint Paul, Office of License, Inspections and Environmental
Protection (LIEP) initiated an adverse action relating to the cigazette license held by Little
Grocery for the premises located at 172A University Avenue West, Saint Paul, Minnesota,
seeking adverse acfion based upon alleged violatians of �324.07 of the Saint Paul Legislafive
Code and §609.685 of the Minnesota Statutes, involving a sale of cigarettes to a minor; and
WHEREAS, an administrative hearing was held befare Administrative Law Judge Susan
Weisman on September 23, 1997, with parties each submitting oral testimony and documents
into the record at the hearing; and
WF�REAS, the administrative law judge issued Findings of Fact, Conclusions and a
Recommendafion dated October 22, 1997 in which she found that the City had proved that an
employee of Little Grocery sold a package of cigarettes to a 14-year old girl on June 21, 1997 `
wSthout asking for identification and in violation of the law; and
WHEREAS, Saint Paul Legislative Code §310A5(k)(vii) pernuts the unposition of the
costs of the hearing against the licensee when the violation involves the sale of tobacco to a
minar; and
WHEREAS, a public hearing was held befare the Saint Paul City Council on December
3, 1997, to consider the report of the ALJ and the licensee was represented at that hearing by his
attorney; now therefore
BE IT RESOLVED, that the Council of the City of Saint Paul, after due deliberation
based upon all of the evidence contained in the files, records and proceedings herein, including
the documents and e�chibits submitted to the administrative law judge, the Findings of Fact,
Conclusions and Recommendation submitted after the hearing and the arguments of counsel at
the hearing, does hexeby order:
1. That the Findings of Fact, Conclusions and Recommendation of the
Administrative Law Judge be accepted as the findings and conclusions of the
Council in this matter and be incorporated herein by reference.
2. That the recommendation for a fine of Two Hundred Doilars
($200) is adopted and said fine is nnposed upon the cigazette
license held by Little Grocery, located at 1724 University Avenue
West, and said fine shall be paid within thirty (30) days of the
adoption of this resolution.
97-�So�
1 3. That pursuant to Saint Paul Legislative Code §310.05(k)(vii), the licensee shall
2 pay costs of the contested hearing in the sum of One Thousand Two Hundred and
3 Eighty-Four pollars and Forty-T1uee Cents ($1,284.43.), within thirty (30) days
4 of the adoption of this resalution.
5
6 A copy o£this Resolution, as adopted, shatl be sent by first class mail to the Licensee and the
7 Administrative Law Judge.
8
3y:
+ppx
Y�
Requested by Department of:
By:
Form Approved by City Attorne
By: � G S
Approved by Mayor for Submission to Council
By:
Adopted by Council: nate �] e. . t' 1\'1q�
�."_'_"_`__
Adoption Certified ty Council Secretary
�� �
DATE 1111MSED
GREEN SHEET
�
s2i�s
December 9, 1997
Councilmember Megazd
S7 9E ON CWNCIL AGEIOA BV (OAT�
DECCIQt7P•I 1�, 19�
�FxIBER Wrt
ROUTING
'�T' �'1Ta.-i
TOTAL # OF SIGNATURE PAGES
on,►,�sowcc,oa
❑ arvllnolUEY � arvcxixK _
❑RYYKYLtFAYICitOYI ❑Mi1NCY�LtFM/-0L[6
❑wvoRroR�a.mrwn ❑
(CLIP ALL LOCATtONS FOR SIGNA7URE)
F inali�ino Ciry Coimcil action taken December 3, 1997 concerning adverse action against cigarette license held by Litfle
Grocery, 1724 University Avenue West.
PLANNING CAMMISSION
CIB COMMITfEE
CIVIL SERVICE CAMMISSION
� m� a�so�rm �er ww�a unee. a� sam� e�mm�e�n
VES NO
Has Mun ParaoM�m ever hcen a dty empbyee7
YES NO
Ocea this P���� P� a Sldll not nwma��YP�sed EY �Y �R� �Y �Ployee?
YES NO
la this P���m a taipeted vendoR
YES t�
dain all ves a�mwe�s an aeoara[e sheet aM attach to arem sheet
AMOUNT OF TRANSACTION
COST/REVENUE BUDGETm (qRCLE ONE)
ACTIVITYNtMBER
YEE NO
FlNnNGW.INFORMATION (E%PWN)
97 �, I �" o8 '
Interdepartmental Memoranduxn
CITY OF SAINT PAUL
DATE: December 5, 1997
TO: Nancy Anderson
Assistant Council Secretary
310 City Hall
FROM: Peter Pangborn
Paralegal
400 City Hall
RE: Consent Agenda - December 17, 1997
l. Little Grocery
Nancy:
Attached is the signed resolution identifying the penalty imposed
by the City Council on Little Grocery. Please schedule this matter
£or the Consent Agenda for the council hearing on Wednesday,
Deaember 17, 1997.
Thanks.
Sincer,ely,�
�f •� �
l,1���'
Peter P. Pangborn
� "==, �
�EC 0 8 j997
�
STATE OF MINNESOTA
OFFICE OF ADMII�ISTRATNE HEARINGS
100 Washington Square, Suite 1700
100 Washington Avenue South
Minneapotis, Minnesota 55401-2138
October 22, 1997
City Council of the City of St. Paul
310 City Hat{
15 West Kellogg Boulevard
St. Paul, MN 55102
q�-1SOf�
RE: Re: The Cigarette License Held By Little Grocery, d/b/a Little Grocery, For the
Premises Located At 1724 University Avenue West, in St. Paul, Minnesota, License l.D.
No. 88646.
Dear City Council Members:
Enclosed please find a copy of the Findings of Fact, Conclusions and Recommendation
in this matter. Copies have been served upon the parties by first class mait. The
remaining fite documents, including ali exhibits entered into evidertee and the duplicate
cassette tapes of this proceeding, shall be fonxarded to you under separate cover from
the Office of Administrative k{earings within the next week. {4 you have any questions
about the transmittai of the record, piease contact Nancy Thomas, Docket Cierk, at 341-
7615. Thank you.
Sincerely,
�L�� �' �.
Susan R. Weismart
Administrative Law Judge
cc: Virginia Paimer, Assistant City Attorney
Richard Sands, Attomey at Law
Providing Impartial Hearings for Government and Citizens
A Equal Opportuniry Emp
Administrative Law Sec6on 8 Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665
�
q'1-I S08'
THIS ORDER CONTAINS NON-P11BL1C DATA 56-2111-11248-3
STATE OF MINNESOTA
OFFICE OF ADMiNISTRATIVE HEARINGS
FOR THE CITY COUNCIL OF THE C1TY OF ST. PAUL
Re: The Cigarette License Heid By
tittle Grocery, d/b/a Little Grocery,
For the Premises Located At
1724 University Avenue West,
!n St. Paul, Minnesota,
License I.D. No. 88646.
FINDINGS OF FACT,
CO(VCLUSIONS
AND RECOMMENDATION
The above-entitled matter came on for hearing before Administrative Law Judge
Susan R. Weisman, on September 23, 1997, at Room 22Q, St. Paul City Hall, 15 West
Keifogg Boulevard, St Paul, Minnesota, 55102. The record closed at the conciusion of
the hearing.
Virginia D. Palmer, Assistant City Attomey, and Peter Pangbom, Parafega{, City
of St. Paut, 40� City Hall, 15 West Keliogg Boulevard, St. Pauf, Minnesota 55102,
appeared on behalf of the City of St. Paul. The store owner, Tim Stoffel, appeared with
counsei, Richard Sands, Attomey at Law, 168 Nina Street, St. Paui, Minnesota 55102.
This Report is a recommendation only, not a finai decision. The Councii of the
City of St. Paul witl make a final decision in this matter after a review of the record, and
may adopt, reject or modify the Findings of Fact, Gonclusions and Recommendations
contained herein. Pursuant to Minn. Stat. § 14.61, the final decision of the City Council
shafi not be made untif this Report has been made available to the paRies to the
proceeding for at least ten (10) days. An opportunity must be afforded to each party
adversely affected by this Report to file exceptions and present argument to the City
Council. Parties should contact the Gity Gouncil of the Ciry of St. Paui, 310 City Halt,
St. Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or
presenting argument.
STATEMENT OF THE ISSUES
The primary issue in this matter is whether or not an empioyee of the license
holder soid cigarettes to a minor under the age of eighteen (18) on Saturday, June 21,
1997, within the ficensed premises, constituting an offense under Minn. Stat. § 609.685
and the City of St. Pau! Legislafive Code, Section 324.07, and, if so, what sanction,
if any, is recommended.
Based upon the record presented and aif of the proceedings herein, the
Administrative Law Judge makes the fotlawing:,
q�_iso8'
FiNDiMGS OF FACT
1. Littie Grocery is a small grocerylconvenience store, measuring approximately
17 feet by 33 feet, {ocated at 1724 University Avenue West, at the comer of University
Avenus West and Aidine Street, in St. Rauf, Minnesota 55104.
2. The store is owned and operated by Tim Stotfel. Mr. Stoffel purchased Little
Grocety approximately thtee years ago. Prior to his purchase of Little Grocery, Mr.
Stoffel managed a Tom Thumb store for approximately four years.
3. Little Grocery is licensed by the City of St. Paui for the sale of cigarettes,
license f.D. No. 88846. The license expiration date is March 31, 1998. (F�c. 2.)
4. Atthough Mr. Stoffei works most Little Grocery shifts, on June 21, 1997, Mr.
Stoffef did not work at the store. The store was staffed from 9 a.m. to 9 p.m. on that
date by one empfoyee, Kevin Bohdan. Mr. Stoffel hired Kevin Sohdan in approximately
February of 1997, fiaving known him previousiy as a customer. Mr. Sohdan worked
often at Littls Grocery on Saturdays.
5. Mr. Bohdan was bom on November 4, 1973, and is presently 23 years of
age. Mr. Bohdan has worked at Littie Grocery on a part-time basis, primarity as a
cashier and stock person, since being hired in approximately February of 1997. He
also performs other store tasks for Mr. Stoffel, as needed. Mr. Bohdan lives in Faicon
Heights, Minnesota, and has separate, full-6me empioymentwith B.F. IVe(son, fotding
cartons, where he has been empioyed for approximateiy four or fve years.
6. Mr. Stoffel provided in-store training to Mr. Bohdan after hiring him, covering
many aspects of the store's operations. Mr. Stoffel's training induded instructions
about how and when to check customers for age identification, and also covered such
topic as stocking she{ves, operating the a{arm system, cashiering, and opening and
ctosing the store.
7. Mr. Stoffei specifically instructed Mr. Bohdan not to selt cigarettes to minors
and instructed him to ask customers to show either a Minnesota driver's Iicense, or
Minnesota picture identification of another sost, before going forward with a sale of
cigarettes, if in doubt about whether a customer was of legal age.
8. On June 21, 1997, and at the hearing in this matter, Mr. Bohdan's
understanding of the legal age requirement for the purchase of cigarettes in Minnesota
was that an individuai has to be twenty-seven (27) years old to iegaily purchase
cigarettes. Mr. Bohdan recalis being instructed by Mr. Stoffel to check the photo
identification of any individuai who didn't look at feast 27 years o{d and not to seil
cigarettes to minors. Mr. Stoffel told Mt. Bohdan tfiat if no positive identification was
provided by a customer in response to his request, no cigarettes couid be sold to that
customer.
9. Business was very brisk at litt�e Grocery on Saturday, June 21, 1997, due to
the presence of a week end car show being held a short distance away on Un+versity
Avenue West, at the Porky's Restaurant parking lot. Mr. Bohdan worked alone the
entire day. Customers streamed in and out steadiiy alf day tong. Mr. Bohdan recatis it
°l'1-\ S o 8�
as the h+ghest volume day he has ever worked at Little Grocery and estimates #hat
hundreds of persons entered the store during the course of the day.
10. J.T., a 14 year oid girl, bom March 2�, 1983, and H.M., a �4 year old girl,
bom Aprii 23, '1983, residents of Bumsvilie, Minnesota, attended the car show on June
21, 1897, with J.T.'s father. J.T. and H.M. are close friends and c{assmates. On a prior
occasion (date not specified in the record), J.T. and H.M. attended another car show
with J.T.'s father at this same location. On both occasions, the giris ieft the car show
premises and went for a walk an and about University Avenue West, in the nearby
vicinity of the car show.
11. On the eariier occasion when they attended a car show at Porky's, J.T. and
H.M. met two young men or boys, ages and identity unknown, named Josh and
Jeremy. J.T. and H.M. d+d not leam Josh and Jeremy's sumames or addresses. While
talking, Josh and Jeremy showed J.T. and H.M. the Little Grocery and told them that
someone at Littie Grocery sefis cigarettes to minors.
12. On June 21, 1997, J.T. and H.M. arrived at the car show around 6:00 p.m.,
and went for a wafk along llniversity Avenue West shortfy afterward, around 630 p.m..
Whfle they were out walking, J.T. decided to buy and try smoking cigarettes. She had
never purchased cigarettes prior to this time. J.T. and H.M. remembered that Josh and
Jeremy had told them on their prior visit that they could buy cigarettes at Little Grocery
and so they decided to go there.
13. J.T. and N.M. entered Littie Grocery together sometime between 6:30 and
7:30 p.m.. Mr. Bohdan was cashiering. J.T. asked Mr. Bohdan for two packs of
cigarettes, a pack of Marlboro Go{d 100's and a pack of Marlboro Mentfiols. Mr.
Bohdan did not ask to see any photo identification and J.T. provided none. J.T.
purchased two packs of Mariboros, a pack of Mariboro Gofd 100's and a pack of
Mariboro Menthofs. J.T. paid for the cigarettes witfi cash. The two giris then ieft Little
Grocery and resumed their waik.
14. A short time tater, whi4e continuing their wa4k, .l.T. and 4i.M, encountered
Josh and Jeremy. The four of them waiked together for awhile. J.T. began smoking
one of the Mariboro Go18100 cigarettes white they walked.
15. At approximateiy 8:00 p.m., Officer Stuart C. Burke, an 8 and 1/2 year
veteran of the St. Paul Pofice force, observed the foursome as he drove by in his squad
car near the intersection of Sherbume and Albert, an intersection close to and within
short walking distance from the University Avenue West corridor where Porky's is
located. Officer Burke observed that one of the girls, J.T., was smoking a cigarette. He
observed that she looked "obviousiy" underage. (Ex. 1.)
16. Q�cer Burlce puiled over and confronted the foursome. He asked J.T. her
age and she replied that she was 14 years oid and identified herseff. Ofifiicer Burke
placed .l.T. in his squad car and checked S.T.'s purse 4or weapons. He observed two
packs of cigarettes in her purse, a pack of Marlboro Goid 100's and a pack of Madboro
Menthois. Officer Surke aiso asked H.M. for identification and spoke with both giris
about the illegality, as minors, of ¢ossessing and smoking cigarettes. (Ex. 1.)
q�_�sos'
17. While O�cer Burke was talking with J.T, and H.M. and writing up a juvenile
tag on J.T., Josh and Jeremy approached Officer Burke and tofd him that J.T.
purchased the cigarettes from a cleric at Little Grocery. Officer Burke asked d.T. and
H.M. if they could identify the clerk if they saw him again. They answered in the
a�rmative. Officer 8urke then drove J.T. and H.M. to the Little Grocery store. (Ex. �.)
18. Mr. Bohdan was standing outside the entrance of Little Grocery, taking a
moment's break, when the squad car pu0ed up. The giris identified fNr. Bohdan from
within the squad car, while Mr. Bohdan was standing outside the entrance. (Ex. 1.)
19. Officer Burke approached Mr. Bohdan while J.T. and H.M. remained in the
squad car and asked him for identification. Mr. Bohdan provided his Minnesota driver's
{icense. O�cer Surke infosmed Mr. Sohdan that he believed Mr. Bohdan had soid
cigarettes to J.T.. He asked Mr. Bohdan to step over to the squad car. He asked Mr.
Bohdan if he recalied seliing cigarettes to either of the two girfs who were seated inside
the squad car. Mr. Bohdan responded, "Protrably ° O�cer Burke asked Mr. Bohdan if
he knew he was supposed to ask for identification if persons appeared to be underage.
Mr. Bohdan reiterated his understanding that 27 years of age was tfie fegal age for the
purchase of cigarettes. Officer Burke asked Mr. Bohdan if J.T. and H.M. appeared to
be at ieast 27 years of age and if he had requested iderrtification from either giri. Mr.
Bohdan shrugged his shoulders. Mr. Bohdan tofd Officer Burke that he wanted to
cooperate and that he had never been in trouble before. He gave Officer Burke Mr.
Stoffel's business card, which contained basic information about tittle Grocery.
20. Officer Burke issued a citation to Mr. Bohdan at approximately 8:3D p.m.,
citing him with a violatiori of Minn. Stat. § 609.685, the sale of tobacco products to
minors, specifying the type of product as cigarettes. (Exs. 1, 7.) Officer Burke
exp{ained the citation and Mr. Bohdan understood Officer's Surke's expianation. Mr.
Bohdan asked Officer Bur1ce what the sanction might be for a violaUon of Minn. Stat
§ 609.685. Officer Burke responded that a fine of severaf hundred doliars would be
4ikely.
21. After issuing citations to Mr. Bohdan and to J.T., Officer Sur4ce re{eased the
rivo giris. He confiscated the two packs of cigarettes, taking them into potice custody.
(F�c. 1.)
22. Mr. Bohdan reported the incident to Mr. 5toffei on Sunday, June 22, 1997,
in the late aftemoon, one day after the incident occurred.
23. Mr. Stoffei maintains a security system at Little Grocery which inciudes a
videatape monitoring system. Mr. Stoffel uses the video tape to study tra�c pattems
in and out of the store. The video tape system is set-up to reiay an eight-hour video-
tape to Mr. Stoffei's home. Sy the time Mr. Sohdan contacted Mr. Stoffef to �eport the
incident, Mr. Stoffei had already rewound the video-tape of Saturday's in-store
transactions. Mr. StoffePS generai practice is to rewind the tape on a dairy basis for re-
use the foliowing day uniess there is a known problem.
24. Mr. Bohdan recaAs feeling "intimidated" and "confused" by Officer Burke
when Officer Burke confronted him on the eve�ing of June 21, 1997, as he had no prior
arrests or citations of any type and no prior deaiings with police officers.
q�-�sag'
25. Mr. Bohdan has no specific recoilection of setling cigarettes to J.T. on June
21, � 997, although he does recall that many juvenile girls and other customers came
into �ittle Grocery on that date, due to the nearby car show.
26. Mr. Sohdan does not recalf stocking or se{ling Martboro Menthols on any
occasion and is unce�tain as to whether or not Little Grocery carries or has ever cartied
that product.
27. Littie Grocery's entire stock of cigarettes is stored behind the counter at the
front of the store in overhead display racks which are accessible only by the store clerk
from behind the counter, Customers are unable to reach around the counter to obtain
cigarettes without cierk assistance.
28. Mr. 5toffel stocks Marlboro Gold 100's and Mariboro Menthols at Little
Grocery. He carries Mariboro Mentho{s in soft-packs onfy.
29. in his written police report, Officer Burke did not specify the packaging of
the two cigarette packs he confiscated as either being soft-packs or hard-packs. He
merely stated the brand and specific name of the cigarettes. The cigarette packs were
not produced or introduced into evidence at the hearing in this matter.
30. Other than the incident described herein, Mr. Stoffef has had no negaYive
interactions or troubte with Mr. Bohdan as an employee.
31. Although Mr. Stoffel has sufEered ane robbery at Litt1e Grocery since his
purchase of the store, he has had no prior troubie with the City of St. Paul as a store
ownerJoperator. To the contrary, on March 24, 1997, Robert Kessier, the Director of
the City of St. Paui's Office of License, Inspection and Environmental Protection (Office
of LIEP), issued a fetter of commendation to Mr. StoffeULittie Grocery, thanking Mr.
StofEel for his difigent compliance with the Ciry's ordinance on the sale of cigarettes to
minors, citing him for being a good �eighbor in the community. In the letter, Mr. Kessler
informed Mr. Stoffel that the O�ce of 11EP had conducted a recent tobacco safes
compiia�ce check of LitUe Grocery and that Mr. Stoffel's sales clerk did not seli tobacco
products to an underage person who attempted to purchase cigarettes. (F�c. 8.)
32. Neither Mr. Stoffel nor Mr. Bohdan knew J.T. or H.M. before the occurrence
of this incident, and neither Mr. Stoffef nor Mr. Bohdan are aware of any reason why
either J.T, or H.M. would want to cause troubie for the business known as Little Grocery
or for either Mr. Stoffet or Mr. Sohdan as individuals.
33. In a subsequent Juvenile Court proceeding, J.T. was ordered to pay a
$20.0a fine for a first offense for the possession/use of cigarettes by a minor.
34. By a letter Notice of Viotation dated June 30, 1997, Mr. Stoffel was notified
that the Director of LIEP wouid recommend that advesse action be taken aga+nst Little
Grocery's cigarette license based on the aileged violation of Minn. Stat. § 609.685 and
St. Paul Legis{ative Code § 324.97 by Mr. Bohdan on June 21, 1997. (Ex. 3.) Mr.
Stoffel timely appeaied that Notice and the matter was set on for hearing.
9�-tSag"
35. The No6ce of Hearing in this matter is dated Juty 17, 1997, and is signed by
Virginia D. Patmer, Assistant City Attomey. Service was made upon counsei for Mr.
Stoffelllittle Grocery, by U.S. mail on .luly 17, 1997. {Ex. 4.) The matter was later re-
scheduled twice. The first Notice of Re-scheduled Hearing is dated September 5,
1997, and the second is dated September 19, 1997. Both of the re-scheduled hearing
noUces are signed by Peter Pangbom, Paralegai. Service of the first and second re-
scheduled hearing notices was made upon counsel for Mr. Stoffel/Littie Grocery, by
U.S. mail on September 5, 1997, and September 19, 1997, respectively. (F�cs. 5, 6.)
Sased upon the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLISS{ONS
1. The City Councif of the City of St. Paul and the Administrative Law Judge
have jurisdiction in this matter pursuant to Minn. Stat. sections 14.50 - 14.67, and the
St. Paui Legislative Code, §§ 310.05 and 310.06.
2. The City of St. Paui has fulfiiled ali relevant procedural and substantive
requirements of law and rufe.
3. The City of St. Paui has provided proper notice of the hearing in this matter.
4. The City of St. Paul has the burden of proof by a preponderance of the
evidence to establish the violations for which an adverse action is proposed.
5. Chapter 310.06 (a) and (b)(6)a of the St. Paul Legislative Code provides in
pertinent part as fo4lows:
"Sec. 310.06. Revocation; suspension; adverse
actions; imposition of conditions.
(a) Council may take adverse action. The council is
authorized to take adverse action...against any or all
licenses or permits, licensee or applicant for a license,
as provided in and by these chapters... Such actions
shall be initiated and carried out in accordance wiih
the procedures outline(d) in section 310.05...."
"(b) Basis for action. Such adverse action may be based
on one (1) or more of the foflowing reasons, which are in
addition to any other reason specificaHy provided by law
or in these chapters: ...(6)a. The license or applicant (or
any person whose conduct may by faw be imputed to the
licensee or appiicant) has violated, or pertormed any act
which is a viofation of any of the provisions of these
chapters ar of any statute, ordinance or regulation,
reasonabiy related to the licensed activity, regardless of
whether criminal charges have or have not been brought
in connection therewith;.. °
q�_�SoB'
6. Chapter 310.17 of the St. Paui Legislative Code provides in pertinent part as
follows:
"Licensee's responsibility. Any act or conduct by any
cierk, employee, manager or agent of a ticensee, or by any
person providing enteRainment or working for or on behalf
of a licensee, whether compensated or not, which act or
conduct takes piace either on the ticensed premises or in
any paricing lot or other area adjacent to...the licensed
premises, and which act or conduct violates any state or
federai statutes or regulations, or any city ordinance, shall
be considered to be and treated as the act or conduct of
the ficensee for the purpose of adverse action against a!1 or
any of the licenses held by such licensee...."
7. Chapter 324.09 (a) and (b) of the St. Paul Legislative Code provide in
pertinerrt part as follows:
"License required. (a) No person shalt self or offer for safe
at retai! within the City of St. Pau! any tobacco, or in any
manner represent or hold himself or herseif out as one who
selis or offers for sale at retaif any tobacco...without a license.
(b) A tobacco vending machine may be located in a public
accommodation, provided that: (1) A{I tobacco vending
machines shail be operable only by the activation of an
electronic switch operated by an empfoyee of the establishmern
before each sale, or by insertion of a token Qrovided to the
purchaser by an employee...: and, (2) The machine shalf be
located in the immediate vicinity, plain vfew and control of a
responsibie empioyee so that ali tobacco purchases wili be
readily observable by that employee...."
8. Minn. Stat. § 509.685, SALE Of TOBACCO TO CHitdREN, provides in
pertinent part as follows:
"Subdivision 1. Gefinitions. ... (a) "Tobacco" means
cigarettes...."
"5ubdivision 1a. Gross misdemeanor. (a) Whoever selis
tobacco to a person under the age of 18 years is guifty of a
gross misdemeanor. (b) tt is an affirmative defense to a charge
under this subdivision if the defendarrt proves by a preponderance
of the evidence that the defe�dant reasonably and i� good
faith relied on proof of age as described in section 340A.503,
subdivision 6."
"Subdivision 2. Misdemeanor. Whcever fumishes tobacco...
to a person under the age of 18 is guilty of a misdemeanor."
a�_�so�
'Subdivision 3. Petty misdemeanor. Whoever possesses,
smokes... or otherwise ingests, purchases... tobacco... and is
under the age of � 8 ysars is guilty of a petty misdemeanor. ...."
9. The City of St. Pau4 has proved by a preponderance of the evidence that an
employee of the licensed busi�ess known as Littie Grocery, Cigarette License No.
88646, namely, Kevin Bohdan, sold c+garettes to a person under the age of 18, namely,
J.T., a gi�i '14 years of age, on June 21, 1997, on the premises of Littfe Grocery during
normal business hours, without requesting or relying upon any proof of age of the minor
child, J.T., or her companion, fi.M., in violation of Minn. Stat. § 609.685 and St. Paul
Legisiative Code, Section 310.17.
1D. The licensee, Tim Stoffel, owneNoperator of Littie Grocery, has
demonstrated by.a preponderance of ihe evidence that at the time of the incident
discussed herein on June 21, 1997, cigarettes were stored properiy on the premises,
consistent with St. Paul Legislative Gode, Section 324.Q1.
11. The above Conciusions are amved at for the reasons set forth in the
Memorandum which foifows and which is incorporated into these Conclusions.
Based upon the foregoing Findings of Fact and Conclusions, the Administrative
Law Judge makes the following:
RECOMMENDATiON
IT IS RESPECTFULLY RECOMMENDED that the Councii of the City of St. Pauf
adopt the recommendation of the Assistant City Attomey, Virginia D. Paimer, to assess
a$200.00 fine against the license of Littte Grocery (the standard fine for a first-time
violation) or, in the altemative, that the Council take any other reasonable action within
its discretion, consistent with the Findings and Conc{usions, herein.
Dated: October �� 997.
,�.�-.� �• G�1..��� �
SUSAN R. WEfSMAN
Administrative Law Judge
NOTlCE
Pursuant to Minn. Stat. § 14.62, subd. 1, the City Counci4 is required to serve
its final decision upon each party and the Administrative Law Judge by first class mail.
Reported: Taped. Two tapes.
��?-1So8'
MEMORANDUM
The persons who testified in this matter were as follows: The two giris, J.T, and
H.M.; Police OfFicer Burke; Little Grocery empioyee, Kevin Bohdan; and, Little Grocery
owner/operator, Tim Stoffel.
At the hearing, Mr. Bohdan des+ied having admitted to Officer Burke that he had
sold, or had probabiy soid, cigarettes to J.T.. Mr. Bohdan testified that he was
intimidated and confused when confronted by Officer Burke because he had never
been in a confrontation with a pofice officer prior to this incident. At the hearing, Mr.
Bohdan testified that he recailed only that the store was very busy on the day of the
incident and that many juveniie girts had entered the store. His testimony was
consistent in most other respects with the testimony and written report of Officer Burke,
the investigating officer.
The Administrative Law Judge is persuaded by a preponderance of the
evidence presented that Mr. Bohdan did, indeed, sell cigarettes to J.T.. Although J.T.
couid not recalt the exact price she paid for the cigarettes, or the exact names or
packaging (soft-packs and/or hard-packs) she purchased, she testified that she
believed both packs were Marlboros and she recalied that she asked for them by name
at the time she purchased them. The testimony of J.T.'s friend, H.M., corroborated the
testimony of J.T. in all maJor regards. 7he testimony of the two giris was consistent,
aiso, with the testimony and written report of Officer Burke.
Mr. Sohdan, at the time of the incident and at the hearing, stated that he
believed that 27 was the legai age for the purchase of cigarettes. 7he giris, J.T. and
4i.M., each took approximately their true ages, 14 years of age, and under no stretch of
the imagination coutd they pass for women aged 27 or oider. The record is devoid of
evidence showing that Mr. Bohdan requested proof of identification from J.T. before
sefling her cigarettes.
The fact that Mr. Bohdan did not repoR the incident to Mr. Stoffel u�til the
foliowing day, a Sunday, in the late aftemoon, after Mr. Stoffet had erased the video-
tape of the store's Saturday transactions, damages his credibility. If Mr. Bohdan had
not soid the cigarettes to J.T., the video-tape may have provided definitive proof of his
innocence. By waiting one fuli day before contacting Mr. Stoffef, Mr. Bohdan knew or
should have known that the video-tape would be rewound and recorded over.
The record makes clear that Mr. Stoffe! has made consistent attempts to
operate a{awfu� business at titt{e Grocery and to provide proper training and
supervision of his employee(s). His commendation by the City's Office of LiEP
provides evidence of those efforts. This factor may be taken into account by the City
Councii in its review of this matter and its final determinafion of what, if any, sanction is
appropriate.
S.R. W.
Council File # '�J
Green Sheet # 62179
Presented By
Referred To
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA
f�
Committee: Date
2
�
6
7
8
9
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
36
37
38
39
40
WHEREAS, the City of Saint Paul, Office of License, Inspections and Environmental
Protection (LIEP) initiated an adverse action relating to the cigazette license held by Little
Grocery for the premises located at 172A University Avenue West, Saint Paul, Minnesota,
seeking adverse acfion based upon alleged violatians of �324.07 of the Saint Paul Legislafive
Code and §609.685 of the Minnesota Statutes, involving a sale of cigarettes to a minor; and
WHEREAS, an administrative hearing was held befare Administrative Law Judge Susan
Weisman on September 23, 1997, with parties each submitting oral testimony and documents
into the record at the hearing; and
WF�REAS, the administrative law judge issued Findings of Fact, Conclusions and a
Recommendafion dated October 22, 1997 in which she found that the City had proved that an
employee of Little Grocery sold a package of cigarettes to a 14-year old girl on June 21, 1997 `
wSthout asking for identification and in violation of the law; and
WHEREAS, Saint Paul Legislative Code §310A5(k)(vii) pernuts the unposition of the
costs of the hearing against the licensee when the violation involves the sale of tobacco to a
minar; and
WHEREAS, a public hearing was held befare the Saint Paul City Council on December
3, 1997, to consider the report of the ALJ and the licensee was represented at that hearing by his
attorney; now therefore
BE IT RESOLVED, that the Council of the City of Saint Paul, after due deliberation
based upon all of the evidence contained in the files, records and proceedings herein, including
the documents and e�chibits submitted to the administrative law judge, the Findings of Fact,
Conclusions and Recommendation submitted after the hearing and the arguments of counsel at
the hearing, does hexeby order:
1. That the Findings of Fact, Conclusions and Recommendation of the
Administrative Law Judge be accepted as the findings and conclusions of the
Council in this matter and be incorporated herein by reference.
2. That the recommendation for a fine of Two Hundred Doilars
($200) is adopted and said fine is nnposed upon the cigazette
license held by Little Grocery, located at 1724 University Avenue
West, and said fine shall be paid within thirty (30) days of the
adoption of this resolution.
97-�So�
1 3. That pursuant to Saint Paul Legislative Code §310.05(k)(vii), the licensee shall
2 pay costs of the contested hearing in the sum of One Thousand Two Hundred and
3 Eighty-Four pollars and Forty-T1uee Cents ($1,284.43.), within thirty (30) days
4 of the adoption of this resalution.
5
6 A copy o£this Resolution, as adopted, shatl be sent by first class mail to the Licensee and the
7 Administrative Law Judge.
8
3y:
+ppx
Y�
Requested by Department of:
By:
Form Approved by City Attorne
By: � G S
Approved by Mayor for Submission to Council
By:
Adopted by Council: nate �] e. . t' 1\'1q�
�."_'_"_`__
Adoption Certified ty Council Secretary
�� �
DATE 1111MSED
GREEN SHEET
�
s2i�s
December 9, 1997
Councilmember Megazd
S7 9E ON CWNCIL AGEIOA BV (OAT�
DECCIQt7P•I 1�, 19�
�FxIBER Wrt
ROUTING
'�T' �'1Ta.-i
TOTAL # OF SIGNATURE PAGES
on,►,�sowcc,oa
❑ arvllnolUEY � arvcxixK _
❑RYYKYLtFAYICitOYI ❑Mi1NCY�LtFM/-0L[6
❑wvoRroR�a.mrwn ❑
(CLIP ALL LOCATtONS FOR SIGNA7URE)
F inali�ino Ciry Coimcil action taken December 3, 1997 concerning adverse action against cigarette license held by Litfle
Grocery, 1724 University Avenue West.
PLANNING CAMMISSION
CIB COMMITfEE
CIVIL SERVICE CAMMISSION
� m� a�so�rm �er ww�a unee. a� sam� e�mm�e�n
VES NO
Has Mun ParaoM�m ever hcen a dty empbyee7
YES NO
Ocea this P���� P� a Sldll not nwma��YP�sed EY �Y �R� �Y �Ployee?
YES NO
la this P���m a taipeted vendoR
YES t�
dain all ves a�mwe�s an aeoara[e sheet aM attach to arem sheet
AMOUNT OF TRANSACTION
COST/REVENUE BUDGETm (qRCLE ONE)
ACTIVITYNtMBER
YEE NO
FlNnNGW.INFORMATION (E%PWN)
97 �, I �" o8 '
Interdepartmental Memoranduxn
CITY OF SAINT PAUL
DATE: December 5, 1997
TO: Nancy Anderson
Assistant Council Secretary
310 City Hall
FROM: Peter Pangborn
Paralegal
400 City Hall
RE: Consent Agenda - December 17, 1997
l. Little Grocery
Nancy:
Attached is the signed resolution identifying the penalty imposed
by the City Council on Little Grocery. Please schedule this matter
£or the Consent Agenda for the council hearing on Wednesday,
Deaember 17, 1997.
Thanks.
Sincer,ely,�
�f •� �
l,1���'
Peter P. Pangborn
� "==, �
�EC 0 8 j997
�
STATE OF MINNESOTA
OFFICE OF ADMII�ISTRATNE HEARINGS
100 Washington Square, Suite 1700
100 Washington Avenue South
Minneapotis, Minnesota 55401-2138
October 22, 1997
City Council of the City of St. Paul
310 City Hat{
15 West Kellogg Boulevard
St. Paul, MN 55102
q�-1SOf�
RE: Re: The Cigarette License Held By Little Grocery, d/b/a Little Grocery, For the
Premises Located At 1724 University Avenue West, in St. Paul, Minnesota, License l.D.
No. 88646.
Dear City Council Members:
Enclosed please find a copy of the Findings of Fact, Conclusions and Recommendation
in this matter. Copies have been served upon the parties by first class mait. The
remaining fite documents, including ali exhibits entered into evidertee and the duplicate
cassette tapes of this proceeding, shall be fonxarded to you under separate cover from
the Office of Administrative k{earings within the next week. {4 you have any questions
about the transmittai of the record, piease contact Nancy Thomas, Docket Cierk, at 341-
7615. Thank you.
Sincerely,
�L�� �' �.
Susan R. Weismart
Administrative Law Judge
cc: Virginia Paimer, Assistant City Attorney
Richard Sands, Attomey at Law
Providing Impartial Hearings for Government and Citizens
A Equal Opportuniry Emp
Administrative Law Sec6on 8 Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665
�
q'1-I S08'
THIS ORDER CONTAINS NON-P11BL1C DATA 56-2111-11248-3
STATE OF MINNESOTA
OFFICE OF ADMiNISTRATIVE HEARINGS
FOR THE CITY COUNCIL OF THE C1TY OF ST. PAUL
Re: The Cigarette License Heid By
tittle Grocery, d/b/a Little Grocery,
For the Premises Located At
1724 University Avenue West,
!n St. Paul, Minnesota,
License I.D. No. 88646.
FINDINGS OF FACT,
CO(VCLUSIONS
AND RECOMMENDATION
The above-entitled matter came on for hearing before Administrative Law Judge
Susan R. Weisman, on September 23, 1997, at Room 22Q, St. Paul City Hall, 15 West
Keifogg Boulevard, St Paul, Minnesota, 55102. The record closed at the conciusion of
the hearing.
Virginia D. Palmer, Assistant City Attomey, and Peter Pangbom, Parafega{, City
of St. Paut, 40� City Hall, 15 West Keliogg Boulevard, St. Pauf, Minnesota 55102,
appeared on behalf of the City of St. Paul. The store owner, Tim Stoffel, appeared with
counsei, Richard Sands, Attomey at Law, 168 Nina Street, St. Paui, Minnesota 55102.
This Report is a recommendation only, not a finai decision. The Councii of the
City of St. Paul witl make a final decision in this matter after a review of the record, and
may adopt, reject or modify the Findings of Fact, Gonclusions and Recommendations
contained herein. Pursuant to Minn. Stat. § 14.61, the final decision of the City Council
shafi not be made untif this Report has been made available to the paRies to the
proceeding for at least ten (10) days. An opportunity must be afforded to each party
adversely affected by this Report to file exceptions and present argument to the City
Council. Parties should contact the Gity Gouncil of the Ciry of St. Paui, 310 City Halt,
St. Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or
presenting argument.
STATEMENT OF THE ISSUES
The primary issue in this matter is whether or not an empioyee of the license
holder soid cigarettes to a minor under the age of eighteen (18) on Saturday, June 21,
1997, within the ficensed premises, constituting an offense under Minn. Stat. § 609.685
and the City of St. Pau! Legislafive Code, Section 324.07, and, if so, what sanction,
if any, is recommended.
Based upon the record presented and aif of the proceedings herein, the
Administrative Law Judge makes the fotlawing:,
q�_iso8'
FiNDiMGS OF FACT
1. Littie Grocery is a small grocerylconvenience store, measuring approximately
17 feet by 33 feet, {ocated at 1724 University Avenue West, at the comer of University
Avenus West and Aidine Street, in St. Rauf, Minnesota 55104.
2. The store is owned and operated by Tim Stotfel. Mr. Stoffel purchased Little
Grocety approximately thtee years ago. Prior to his purchase of Little Grocery, Mr.
Stoffel managed a Tom Thumb store for approximately four years.
3. Little Grocery is licensed by the City of St. Paui for the sale of cigarettes,
license f.D. No. 88846. The license expiration date is March 31, 1998. (F�c. 2.)
4. Atthough Mr. Stoffei works most Little Grocery shifts, on June 21, 1997, Mr.
Stoffef did not work at the store. The store was staffed from 9 a.m. to 9 p.m. on that
date by one empfoyee, Kevin Bohdan. Mr. Stoffel hired Kevin Sohdan in approximately
February of 1997, fiaving known him previousiy as a customer. Mr. Sohdan worked
often at Littls Grocery on Saturdays.
5. Mr. Bohdan was bom on November 4, 1973, and is presently 23 years of
age. Mr. Bohdan has worked at Littie Grocery on a part-time basis, primarity as a
cashier and stock person, since being hired in approximately February of 1997. He
also performs other store tasks for Mr. Stoffel, as needed. Mr. Bohdan lives in Faicon
Heights, Minnesota, and has separate, full-6me empioymentwith B.F. IVe(son, fotding
cartons, where he has been empioyed for approximateiy four or fve years.
6. Mr. Stoffel provided in-store training to Mr. Bohdan after hiring him, covering
many aspects of the store's operations. Mr. Stoffel's training induded instructions
about how and when to check customers for age identification, and also covered such
topic as stocking she{ves, operating the a{arm system, cashiering, and opening and
ctosing the store.
7. Mr. Stoffei specifically instructed Mr. Bohdan not to selt cigarettes to minors
and instructed him to ask customers to show either a Minnesota driver's Iicense, or
Minnesota picture identification of another sost, before going forward with a sale of
cigarettes, if in doubt about whether a customer was of legal age.
8. On June 21, 1997, and at the hearing in this matter, Mr. Bohdan's
understanding of the legal age requirement for the purchase of cigarettes in Minnesota
was that an individuai has to be twenty-seven (27) years old to iegaily purchase
cigarettes. Mr. Bohdan recalis being instructed by Mr. Stoffel to check the photo
identification of any individuai who didn't look at feast 27 years o{d and not to seil
cigarettes to minors. Mr. Stoffel told Mt. Bohdan tfiat if no positive identification was
provided by a customer in response to his request, no cigarettes couid be sold to that
customer.
9. Business was very brisk at litt�e Grocery on Saturday, June 21, 1997, due to
the presence of a week end car show being held a short distance away on Un+versity
Avenue West, at the Porky's Restaurant parking lot. Mr. Bohdan worked alone the
entire day. Customers streamed in and out steadiiy alf day tong. Mr. Bohdan recatis it
°l'1-\ S o 8�
as the h+ghest volume day he has ever worked at Little Grocery and estimates #hat
hundreds of persons entered the store during the course of the day.
10. J.T., a 14 year oid girl, bom March 2�, 1983, and H.M., a �4 year old girl,
bom Aprii 23, '1983, residents of Bumsvilie, Minnesota, attended the car show on June
21, 1897, with J.T.'s father. J.T. and H.M. are close friends and c{assmates. On a prior
occasion (date not specified in the record), J.T. and H.M. attended another car show
with J.T.'s father at this same location. On both occasions, the giris ieft the car show
premises and went for a walk an and about University Avenue West, in the nearby
vicinity of the car show.
11. On the eariier occasion when they attended a car show at Porky's, J.T. and
H.M. met two young men or boys, ages and identity unknown, named Josh and
Jeremy. J.T. and H.M. d+d not leam Josh and Jeremy's sumames or addresses. While
talking, Josh and Jeremy showed J.T. and H.M. the Little Grocery and told them that
someone at Littie Grocery sefis cigarettes to minors.
12. On June 21, 1997, J.T. and H.M. arrived at the car show around 6:00 p.m.,
and went for a wafk along llniversity Avenue West shortfy afterward, around 630 p.m..
Whfle they were out walking, J.T. decided to buy and try smoking cigarettes. She had
never purchased cigarettes prior to this time. J.T. and H.M. remembered that Josh and
Jeremy had told them on their prior visit that they could buy cigarettes at Little Grocery
and so they decided to go there.
13. J.T. and N.M. entered Littie Grocery together sometime between 6:30 and
7:30 p.m.. Mr. Bohdan was cashiering. J.T. asked Mr. Bohdan for two packs of
cigarettes, a pack of Marlboro Go{d 100's and a pack of Marlboro Mentfiols. Mr.
Bohdan did not ask to see any photo identification and J.T. provided none. J.T.
purchased two packs of Mariboros, a pack of Mariboro Gofd 100's and a pack of
Mariboro Menthofs. J.T. paid for the cigarettes witfi cash. The two giris then ieft Little
Grocery and resumed their waik.
14. A short time tater, whi4e continuing their wa4k, .l.T. and 4i.M, encountered
Josh and Jeremy. The four of them waiked together for awhile. J.T. began smoking
one of the Mariboro Go18100 cigarettes white they walked.
15. At approximateiy 8:00 p.m., Officer Stuart C. Burke, an 8 and 1/2 year
veteran of the St. Paul Pofice force, observed the foursome as he drove by in his squad
car near the intersection of Sherbume and Albert, an intersection close to and within
short walking distance from the University Avenue West corridor where Porky's is
located. Officer Burke observed that one of the girls, J.T., was smoking a cigarette. He
observed that she looked "obviousiy" underage. (Ex. 1.)
16. Q�cer Burlce puiled over and confronted the foursome. He asked J.T. her
age and she replied that she was 14 years oid and identified herseff. Ofifiicer Burke
placed .l.T. in his squad car and checked S.T.'s purse 4or weapons. He observed two
packs of cigarettes in her purse, a pack of Marlboro Goid 100's and a pack of Madboro
Menthois. Officer Surke aiso asked H.M. for identification and spoke with both giris
about the illegality, as minors, of ¢ossessing and smoking cigarettes. (Ex. 1.)
q�_�sos'
17. While O�cer Burke was talking with J.T, and H.M. and writing up a juvenile
tag on J.T., Josh and Jeremy approached Officer Burke and tofd him that J.T.
purchased the cigarettes from a cleric at Little Grocery. Officer Burke asked d.T. and
H.M. if they could identify the clerk if they saw him again. They answered in the
a�rmative. Officer 8urke then drove J.T. and H.M. to the Little Grocery store. (Ex. �.)
18. Mr. Bohdan was standing outside the entrance of Little Grocery, taking a
moment's break, when the squad car pu0ed up. The giris identified fNr. Bohdan from
within the squad car, while Mr. Bohdan was standing outside the entrance. (Ex. 1.)
19. Officer Burke approached Mr. Bohdan while J.T. and H.M. remained in the
squad car and asked him for identification. Mr. Bohdan provided his Minnesota driver's
{icense. O�cer Surke infosmed Mr. Sohdan that he believed Mr. Bohdan had soid
cigarettes to J.T.. He asked Mr. Bohdan to step over to the squad car. He asked Mr.
Bohdan if he recalied seliing cigarettes to either of the two girfs who were seated inside
the squad car. Mr. Bohdan responded, "Protrably ° O�cer Burke asked Mr. Bohdan if
he knew he was supposed to ask for identification if persons appeared to be underage.
Mr. Bohdan reiterated his understanding that 27 years of age was tfie fegal age for the
purchase of cigarettes. Officer Burke asked Mr. Bohdan if J.T. and H.M. appeared to
be at ieast 27 years of age and if he had requested iderrtification from either giri. Mr.
Bohdan shrugged his shoulders. Mr. Bohdan tofd Officer Burke that he wanted to
cooperate and that he had never been in trouble before. He gave Officer Burke Mr.
Stoffel's business card, which contained basic information about tittle Grocery.
20. Officer Burke issued a citation to Mr. Bohdan at approximately 8:3D p.m.,
citing him with a violatiori of Minn. Stat. § 609.685, the sale of tobacco products to
minors, specifying the type of product as cigarettes. (Exs. 1, 7.) Officer Burke
exp{ained the citation and Mr. Bohdan understood Officer's Surke's expianation. Mr.
Bohdan asked Officer Bur1ce what the sanction might be for a violaUon of Minn. Stat
§ 609.685. Officer Burke responded that a fine of severaf hundred doliars would be
4ikely.
21. After issuing citations to Mr. Bohdan and to J.T., Officer Sur4ce re{eased the
rivo giris. He confiscated the two packs of cigarettes, taking them into potice custody.
(F�c. 1.)
22. Mr. Bohdan reported the incident to Mr. 5toffei on Sunday, June 22, 1997,
in the late aftemoon, one day after the incident occurred.
23. Mr. Stoffei maintains a security system at Little Grocery which inciudes a
videatape monitoring system. Mr. Stoffel uses the video tape to study tra�c pattems
in and out of the store. The video tape system is set-up to reiay an eight-hour video-
tape to Mr. Stoffei's home. Sy the time Mr. Sohdan contacted Mr. Stoffef to �eport the
incident, Mr. Stoffei had already rewound the video-tape of Saturday's in-store
transactions. Mr. StoffePS generai practice is to rewind the tape on a dairy basis for re-
use the foliowing day uniess there is a known problem.
24. Mr. Bohdan recaAs feeling "intimidated" and "confused" by Officer Burke
when Officer Burke confronted him on the eve�ing of June 21, 1997, as he had no prior
arrests or citations of any type and no prior deaiings with police officers.
q�-�sag'
25. Mr. Bohdan has no specific recoilection of setling cigarettes to J.T. on June
21, � 997, although he does recall that many juvenile girls and other customers came
into �ittle Grocery on that date, due to the nearby car show.
26. Mr. Sohdan does not recalf stocking or se{ling Martboro Menthols on any
occasion and is unce�tain as to whether or not Little Grocery carries or has ever cartied
that product.
27. Littie Grocery's entire stock of cigarettes is stored behind the counter at the
front of the store in overhead display racks which are accessible only by the store clerk
from behind the counter, Customers are unable to reach around the counter to obtain
cigarettes without cierk assistance.
28. Mr. 5toffel stocks Marlboro Gold 100's and Mariboro Menthols at Little
Grocery. He carries Mariboro Mentho{s in soft-packs onfy.
29. in his written police report, Officer Burke did not specify the packaging of
the two cigarette packs he confiscated as either being soft-packs or hard-packs. He
merely stated the brand and specific name of the cigarettes. The cigarette packs were
not produced or introduced into evidence at the hearing in this matter.
30. Other than the incident described herein, Mr. Stoffef has had no negaYive
interactions or troubte with Mr. Bohdan as an employee.
31. Although Mr. Stoffel has sufEered ane robbery at Litt1e Grocery since his
purchase of the store, he has had no prior troubie with the City of St. Paul as a store
ownerJoperator. To the contrary, on March 24, 1997, Robert Kessier, the Director of
the City of St. Paui's Office of License, Inspection and Environmental Protection (Office
of LIEP), issued a fetter of commendation to Mr. StoffeULittie Grocery, thanking Mr.
StofEel for his difigent compliance with the Ciry's ordinance on the sale of cigarettes to
minors, citing him for being a good �eighbor in the community. In the letter, Mr. Kessler
informed Mr. Stoffel that the O�ce of 11EP had conducted a recent tobacco safes
compiia�ce check of LitUe Grocery and that Mr. Stoffel's sales clerk did not seli tobacco
products to an underage person who attempted to purchase cigarettes. (F�c. 8.)
32. Neither Mr. Stoffel nor Mr. Bohdan knew J.T. or H.M. before the occurrence
of this incident, and neither Mr. Stoffef nor Mr. Bohdan are aware of any reason why
either J.T, or H.M. would want to cause troubie for the business known as Little Grocery
or for either Mr. Stoffet or Mr. Sohdan as individuals.
33. In a subsequent Juvenile Court proceeding, J.T. was ordered to pay a
$20.0a fine for a first offense for the possession/use of cigarettes by a minor.
34. By a letter Notice of Viotation dated June 30, 1997, Mr. Stoffel was notified
that the Director of LIEP wouid recommend that advesse action be taken aga+nst Little
Grocery's cigarette license based on the aileged violation of Minn. Stat. § 609.685 and
St. Paul Legis{ative Code § 324.97 by Mr. Bohdan on June 21, 1997. (Ex. 3.) Mr.
Stoffel timely appeaied that Notice and the matter was set on for hearing.
9�-tSag"
35. The No6ce of Hearing in this matter is dated Juty 17, 1997, and is signed by
Virginia D. Patmer, Assistant City Attomey. Service was made upon counsei for Mr.
Stoffelllittle Grocery, by U.S. mail on .luly 17, 1997. {Ex. 4.) The matter was later re-
scheduled twice. The first Notice of Re-scheduled Hearing is dated September 5,
1997, and the second is dated September 19, 1997. Both of the re-scheduled hearing
noUces are signed by Peter Pangbom, Paralegai. Service of the first and second re-
scheduled hearing notices was made upon counsel for Mr. Stoffel/Littie Grocery, by
U.S. mail on September 5, 1997, and September 19, 1997, respectively. (F�cs. 5, 6.)
Sased upon the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLISS{ONS
1. The City Councif of the City of St. Paul and the Administrative Law Judge
have jurisdiction in this matter pursuant to Minn. Stat. sections 14.50 - 14.67, and the
St. Paui Legislative Code, §§ 310.05 and 310.06.
2. The City of St. Paui has fulfiiled ali relevant procedural and substantive
requirements of law and rufe.
3. The City of St. Paui has provided proper notice of the hearing in this matter.
4. The City of St. Paul has the burden of proof by a preponderance of the
evidence to establish the violations for which an adverse action is proposed.
5. Chapter 310.06 (a) and (b)(6)a of the St. Paul Legislative Code provides in
pertinent part as fo4lows:
"Sec. 310.06. Revocation; suspension; adverse
actions; imposition of conditions.
(a) Council may take adverse action. The council is
authorized to take adverse action...against any or all
licenses or permits, licensee or applicant for a license,
as provided in and by these chapters... Such actions
shall be initiated and carried out in accordance wiih
the procedures outline(d) in section 310.05...."
"(b) Basis for action. Such adverse action may be based
on one (1) or more of the foflowing reasons, which are in
addition to any other reason specificaHy provided by law
or in these chapters: ...(6)a. The license or applicant (or
any person whose conduct may by faw be imputed to the
licensee or appiicant) has violated, or pertormed any act
which is a viofation of any of the provisions of these
chapters ar of any statute, ordinance or regulation,
reasonabiy related to the licensed activity, regardless of
whether criminal charges have or have not been brought
in connection therewith;.. °
q�_�SoB'
6. Chapter 310.17 of the St. Paui Legislative Code provides in pertinent part as
follows:
"Licensee's responsibility. Any act or conduct by any
cierk, employee, manager or agent of a ticensee, or by any
person providing enteRainment or working for or on behalf
of a licensee, whether compensated or not, which act or
conduct takes piace either on the ticensed premises or in
any paricing lot or other area adjacent to...the licensed
premises, and which act or conduct violates any state or
federai statutes or regulations, or any city ordinance, shall
be considered to be and treated as the act or conduct of
the ficensee for the purpose of adverse action against a!1 or
any of the licenses held by such licensee...."
7. Chapter 324.09 (a) and (b) of the St. Paul Legislative Code provide in
pertinerrt part as follows:
"License required. (a) No person shalt self or offer for safe
at retai! within the City of St. Pau! any tobacco, or in any
manner represent or hold himself or herseif out as one who
selis or offers for sale at retaif any tobacco...without a license.
(b) A tobacco vending machine may be located in a public
accommodation, provided that: (1) A{I tobacco vending
machines shail be operable only by the activation of an
electronic switch operated by an empfoyee of the establishmern
before each sale, or by insertion of a token Qrovided to the
purchaser by an employee...: and, (2) The machine shalf be
located in the immediate vicinity, plain vfew and control of a
responsibie empioyee so that ali tobacco purchases wili be
readily observable by that employee...."
8. Minn. Stat. § 509.685, SALE Of TOBACCO TO CHitdREN, provides in
pertinent part as follows:
"Subdivision 1. Gefinitions. ... (a) "Tobacco" means
cigarettes...."
"5ubdivision 1a. Gross misdemeanor. (a) Whoever selis
tobacco to a person under the age of 18 years is guifty of a
gross misdemeanor. (b) tt is an affirmative defense to a charge
under this subdivision if the defendarrt proves by a preponderance
of the evidence that the defe�dant reasonably and i� good
faith relied on proof of age as described in section 340A.503,
subdivision 6."
"Subdivision 2. Misdemeanor. Whcever fumishes tobacco...
to a person under the age of 18 is guilty of a misdemeanor."
a�_�so�
'Subdivision 3. Petty misdemeanor. Whoever possesses,
smokes... or otherwise ingests, purchases... tobacco... and is
under the age of � 8 ysars is guilty of a petty misdemeanor. ...."
9. The City of St. Pau4 has proved by a preponderance of the evidence that an
employee of the licensed busi�ess known as Littie Grocery, Cigarette License No.
88646, namely, Kevin Bohdan, sold c+garettes to a person under the age of 18, namely,
J.T., a gi�i '14 years of age, on June 21, 1997, on the premises of Littfe Grocery during
normal business hours, without requesting or relying upon any proof of age of the minor
child, J.T., or her companion, fi.M., in violation of Minn. Stat. § 609.685 and St. Paul
Legisiative Code, Section 310.17.
1D. The licensee, Tim Stoffel, owneNoperator of Littie Grocery, has
demonstrated by.a preponderance of ihe evidence that at the time of the incident
discussed herein on June 21, 1997, cigarettes were stored properiy on the premises,
consistent with St. Paul Legislative Gode, Section 324.Q1.
11. The above Conciusions are amved at for the reasons set forth in the
Memorandum which foifows and which is incorporated into these Conclusions.
Based upon the foregoing Findings of Fact and Conclusions, the Administrative
Law Judge makes the following:
RECOMMENDATiON
IT IS RESPECTFULLY RECOMMENDED that the Councii of the City of St. Pauf
adopt the recommendation of the Assistant City Attomey, Virginia D. Paimer, to assess
a$200.00 fine against the license of Littte Grocery (the standard fine for a first-time
violation) or, in the altemative, that the Council take any other reasonable action within
its discretion, consistent with the Findings and Conc{usions, herein.
Dated: October �� 997.
,�.�-.� �• G�1..��� �
SUSAN R. WEfSMAN
Administrative Law Judge
NOTlCE
Pursuant to Minn. Stat. § 14.62, subd. 1, the City Counci4 is required to serve
its final decision upon each party and the Administrative Law Judge by first class mail.
Reported: Taped. Two tapes.
��?-1So8'
MEMORANDUM
The persons who testified in this matter were as follows: The two giris, J.T, and
H.M.; Police OfFicer Burke; Little Grocery empioyee, Kevin Bohdan; and, Little Grocery
owner/operator, Tim Stoffel.
At the hearing, Mr. Bohdan des+ied having admitted to Officer Burke that he had
sold, or had probabiy soid, cigarettes to J.T.. Mr. Bohdan testified that he was
intimidated and confused when confronted by Officer Burke because he had never
been in a confrontation with a pofice officer prior to this incident. At the hearing, Mr.
Bohdan testified that he recailed only that the store was very busy on the day of the
incident and that many juveniie girts had entered the store. His testimony was
consistent in most other respects with the testimony and written report of Officer Burke,
the investigating officer.
The Administrative Law Judge is persuaded by a preponderance of the
evidence presented that Mr. Bohdan did, indeed, sell cigarettes to J.T.. Although J.T.
couid not recalt the exact price she paid for the cigarettes, or the exact names or
packaging (soft-packs and/or hard-packs) she purchased, she testified that she
believed both packs were Marlboros and she recalied that she asked for them by name
at the time she purchased them. The testimony of J.T.'s friend, H.M., corroborated the
testimony of J.T. in all maJor regards. 7he testimony of the two giris was consistent,
aiso, with the testimony and written report of Officer Burke.
Mr. Sohdan, at the time of the incident and at the hearing, stated that he
believed that 27 was the legai age for the purchase of cigarettes. 7he giris, J.T. and
4i.M., each took approximately their true ages, 14 years of age, and under no stretch of
the imagination coutd they pass for women aged 27 or oider. The record is devoid of
evidence showing that Mr. Bohdan requested proof of identification from J.T. before
sefling her cigarettes.
The fact that Mr. Bohdan did not repoR the incident to Mr. Stoffel u�til the
foliowing day, a Sunday, in the late aftemoon, after Mr. Stoffet had erased the video-
tape of the store's Saturday transactions, damages his credibility. If Mr. Bohdan had
not soid the cigarettes to J.T., the video-tape may have provided definitive proof of his
innocence. By waiting one fuli day before contacting Mr. Stoffef, Mr. Bohdan knew or
should have known that the video-tape would be rewound and recorded over.
The record makes clear that Mr. Stoffe! has made consistent attempts to
operate a{awfu� business at titt{e Grocery and to provide proper training and
supervision of his employee(s). His commendation by the City's Office of LiEP
provides evidence of those efforts. This factor may be taken into account by the City
Councii in its review of this matter and its final determinafion of what, if any, sanction is
appropriate.
S.R. W.