The URL can be used to link to this page

97-327STATE OF MINNESOTA G � c -� ` �J OFFICE OF ADMINISTRATIVE HEARINGS t i ��` 104 Washington Square, Sufte 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 January 15, 1996 Fred Owusu City Clerk 170 City Hall 15 W. Kellogg Blvd. St. Paul, MN 55102 Re: ln the Matter of the License of Scanlon's Ace 8ox Bar & Pub, Inc. Dibia Dublin Bar. OAH Docket No. 57-2111-10862-6 Dear Mr. Owusu: On January 13, 1997, Administrative Law Judge Ranum served the Findings of Facf, Conciusions and Recommendation in the above-entitled matter. Enclosed is the official record, including a copy of the tape recording of the hearing. Our file in this matter is now being closed. Very truly yours, `�� `�il • ,i�� C Nancy M. Thomas Docket Clerk Te�ephone: 612/341-7615 NT Enc. Providing Impartial Hearings for Government and Citizens An Equal Opportu E Administrative Law Section & Adminlstrative Services (612) 341-760D � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 ��"� �� AFFIDAVIT OF SERVICE BY ?SAIL STATE OF 2�IINNESOTA ) ) COIINTY OF HENNEPIN ) James ri_ Ranum, of �ne CiLy of Minnea�olis, County o� Hennepin, in the State of i�=nnesota, beir_g duly sworn, says that on the 13 of ,jc+�.�_ , 199�i, he serred the foilowina: � o on ��^a s G mailing a depositing directed t �ae� � �` ; Cc�i.+C'L.u.Sce�' 4�1r P �,,.`'' �, ¢.Z �� i ic� t� t �-�/ � Sc �y for the �"-y�``- �Z" b Y copy thereof in an envelope, postage prepaid, and by same in the post office at Minneapolis, Minnesota, o said attorney at: `� � t'o 2(.ln,�.;eo.t� U,A,�.+1.c - �.7 �v e C.✓F� Sk- �'c , �a� � � ( � 4 � � 4cx� F 3-y �n« �� i5 � d Z<e(��,� s�, P�. l � M,, li�e.� �Ci � � eiL�. last known address of said ��ey. `� e H. Ranum Subscribe3 and swo to before me this l3fihday of�. , 199�. i2� 'f �� / o� MARIAH.THOMPSON NOTARYPUBLIC-MINNESO7A NOtdY'y Pub1iC HENNEPINWUNTY •�� MyCommissionExpirsJan.31.2000 �'� r;� f. �`� a ,� ` ,� r , � Council File # i �` u �[ .� e . -. k . .`Y :. _ Green Sheet # RESOLUTION CITY OF SAINT PAUL, MINNESOTA Presented By Referred To 1 2 3 4 5 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 41 42 43 Committee: Date q�_3a ��Z�� ID RESOLVED, that the licensee, Scanlon's Ace Box Baz & Pub, Inc. d/b/a the Dublin Baz, located at 2162 W. University Avenue in Saint Paul is hereby ordered to pay a fine in the amount of $200 for the violarion of the sale of tobacco to a minor, occurring on the licensed premises on October 26, 1996. Said fine shall be paid to the Office of License, Inspections and Environmental Protection within thiriy (30) days of the adoption of this resolurion by the Council and signature by the Mayor. FURTHER RESOLVED, that the findings of fact and conclusions of law contained in the ALJ Report in this case, dated January 13, 1997, are adopted as the written findings and conclusions of the Council in this matter, except as modified below. The reasoning of the Memorandum of the AL7 attached to the findings and conclusions is not adopted. The recommendation of the ALJ is also not adopted. FURTHER RESOLVED, that the following amendments to the ALJ Report aze hereby adopted: 1. Finding of Fact No. 9 is hereby amended to read as follows: 9. The minor did not testify at the heazing� °~a ��p � ...:......... . ..... ....�,.:,...a. _,.,:,,w,,. �a?iie��1S::�rizSal..AYS�i 2. A new Finding of Fact No. 10 is hereby adopted to read as follows: 3. A new Finding of Fact No 11. is hereby adopted to read as follows: � �l - � a�1 4. A new Finding of Fact No. 12 is hereby adopted to read as follows: 5. A new Finding of Fact No. 13 is hereby adopted to read as follows: 6. A new Finding of Fact No. 14 is hereby adopted to read as follows: 7. A new Finding of Fact No. 15 is hereby adopted to read as follows: 8. A new Finding of Fact No. 16 is hereby adopted to read as follows: 9. Conclusion of Law No. 4 is deleted in its entirety, and a new Conclusion of Law No. 4 is hereby adopted to read as follows: 10. Conclusion of Law No. 5 is deleted in its enrirety, and a new conclusion of Law No. 5 is hereby adopted to read as follows: i 2 3 4 5 6 7 8 9 10 11 12 �� a� This Resolution is based on the recard and proceedings before the ALJ on December 18, 1996, the documents and exhibits introduced therein, the fmdings of fact and conclusions of the ALJ as referenced above, the written exceptions filed by counsel far the Office of License, Inspection and Environmental Protection, the arguments and statements of the parties on February 26, 1997, and the deliberations of the Council in open session on that date. A copy of the Resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge, and to Mr. Thomas Scanlon. Requested by Department of: By: Form Approved by City Attorney / \ 1 BY: �°��Jc� /�.c.l�.2 f� � � i By Approved by Mayor: Date �E� BY= .`—�.� . by Mayor for Submission to sy: Adopted by Council: Date ` � �'"'1 Adoption Certified by Council Secretary � �Z -� � flf��.�, �E�A7MENTqFFlCElC0�NC1� DATE INITIATED Ciry Council Offices 3-25-1997 GREEN SHEE COMACf PERSON & PHONE M�TIAVDATE INITIAUDATE �DEPARTMENT�IRECTOR OCITYCOUNCIL Roberta Megazd, 266-8640 �ewN � CITV ATfORNEV � dTV CLERK NUMBENFOq MUST BE N CAUNCIL AGENDA BV (DATE) pp� � BUW Ef DIqECTOR � FIN. & MGT SFAVIqES DIR. A 1'1� 2 199,� OqOEp � MAYOR (OR ASSISTANT) � TOTAL # OP SIC�NATURE PAGES (CLIP ALL LOCATIONS FOR SIGNATURE) ACTION REQUESTED: Finalizing Ciry Councfl acfion taken on February 26, 1997, concerning adverse action againstlicenses held by Scanlon's Ace Box Baz & Pub, Inc., DBA Dublin Baz, 2162 W. Universiry Avenue. PECOMMENDATIONS: Approve EQ) or Aaject iPo PERSONAL SEflVICE CONTRACTS MUST ANSWER TXE FOLLOWING QUESTIONS: _ PLANNING CAMMISSION _ CIVIL SERVICE CpMMISSION �� Has this petsonflirm eve� worked untler a cOMract for this department? _ CIB COMMRTEE YES NO _� � 2. Has this person/firm eve� been a city employee? — VES NO _ DISTRIC7 CpURT __ 3. Does thi5 BrsonRifm p possess a skill not normally possessed by any curtent ciry emplqree? SUPPORTS WHICH COUNCIL OBJE(;'fIVE? YES NO Explain all yes anawers on seperate sheet and atteoh M gresn sheet INITIATING PRQBLEM, ISSUE, OPPp�{UNITY (WM, What, When, Whora. Why): A�YANTAGESIFAPPROYEb � DISADVANTAGES 1F AFPARYE@, � � �"�a°l&��r� 4^ ��.. ,.'m.� P,e�� d&§3A `�f b Cd ta £+��f / DISADVANTAGESIFNOSAPPflOVED. �� T07AL AMOUN70F TRANSAC710N $ COST/pEVENUE BUDGETED (CIRCLE ONE) YES NO FUNDI{AG SOURCE ACTNITY NUMBER FINANCIAL INFORAhAT10N. (EXPLAIN) OFFICE OF TEIE CITY ATTORNEY � a n Trmothy E. Mar� Ciry Attorney C7 +� _ � i, CITY OF SAINT PAUL Norn� Coleman, Mayor C"rv'rt Div"uion 400 Ciry Ha(1 IS Wut Kellogg Blvd Sa'mt Paul, M'rmreso7a 55702 Telephone: 611166-8710 Facsimi7e: 672 298-5679 January 31, 1997 NOTICB OF COUI3CIL HEARING Mr. Thomas C. Scanlon and Ms. Jean M. Scanlon Dublin Bar 2162 University Avenue West Saint Paul, Minnesota 55114 Re: In the Matter of the cigarette license of Scanlon's Ace Box Bar & Pub, Inc. d/b/a Dublin Bar for the premises located at 2162 University Avenue West in St. Paul ' License ID No.:15999 Our File Number: G96-0539 Dear Mr. and Ms. Scanlon: Please take notice that a hearing on the report of the Administrative Law 3udge concerning the above-mentioned license has been scheduled £or 4:30 p.m., Wednesday, Bebruary 26, 1997, in the City Council Chambers, Third Floor, Saint Pau1 City Ha11 and Ramsey County Courthouse. You have the opportunity to file exceptions 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 will 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 judgement and discretion. Sincerely, �� j�� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Robert Kessler, Director, LIEP Christine Rozek, LIEP Abby Struck, Community Organizer, Council, 890 Cromwell Ave., ;�w . ,. �:,`u'� �� -� Secretary, 310 City Hall St. Anthony Park Community St. Paul, MN 55114 OFFICE OF Tf� CITY ATTORNEY�� ,� � n Timothy E. Maix, Ciry Anorney � CITY OF SAINT PALTI, Norne Coleman, Mayor CivllDivufon 400 City Hall is wes: �uo� sha Sami Puul, M'mnesom SSIO2 Telephone: 612 266-8710 Facsimite: 6I2 298-5619 February 5, 1997 Ms. Nancy Anderson Secretary to the City Council 310 City Hall 15 W. Kellogg Boulevard Saint Paul, MN 55102 RE: In re the Licenses of Scanlon's Ace Box Bar & Pub, dfb/a the Dublin Bar, 2162 W. University Avenue Council Hearing - Rebruary 26, 1997 Dear Ms. Anderson: Enclosed for filing, and for inclusion in the agenda materials furnished to the Council in connection with the hearing on the above matter are the Written Exceptions of the Office of License, Inspections and Environmental protection to the report of the Administrative Law Judge. Sincerely, `/ � : � �� ✓G � �� Virgin�'a D. Palmer Assistant City Attorney enc. cc: Robert Kessler, Director of LIEP Mr. Thomas Scanlon, Licensee �� STATE OF MINNESQTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CI`PY OF SAINT PAUL Case No. 57-2111-10862-6 In re the Licenses of Scanlon`s Ace Box Bar & Pub, Inc. dJb/a the Dublin Bar, 2162 W.University Ave. I. Recommendations of the ALJ WRITTEN EXCEPTIONS The ALJ has recommended no penalty against the licensed establishment, based upon his finding that the Cit�rfailed to prove by a preponderance of the evidence that the licensee sold tobacco to a minor. II. LIEP Position The Office of License, Inspections and Environmental Protection (LIEP) believes that the evidence in the record supports additional Findings of Fact and Amended Conclusions of Law, that there was sufficient proof that the sale of tobacco was made to a minor by an employee of the Dublin Bar and that a penalty should be imposed on the licensee for the sale of tobacco to a minor. The City Council is requested to adopt the new and amended Findings of Fact and Conclusions attached hereto, and to impose a penalty of $200 on the licensee. III. Issue The Administrative Law Judge found that the City had not proved by a preponderance of the evidence that the licensee sold tobacco to a minor at the time and place alleged. The judge correctly noted that the standard of proof is not the same as is needed for a criminal trial, but still applied the wrong balancing test to the evidence. A'�preponderance of the evidence" means evidence which would lead the trier of fact to believe that it is more likely than not that the aase is true. If there is the slightest tipping of the scales in the direction of the City by credible evidence, then the City has proved its case. °Q � ''� � 2 The ALJ's Findings of Fact leave out much of the testimony that was put in by the City license inspector, Kristina Schweinler. Ms. Schweinler testified that on October 26, 1996, she was performing cigarette compliance checks at a number of licensed establishments with the assistance of two minors. After picking the minors up at their homes, she had fully e�;plained the purpose o£ the cigarette compliance checks to them, and had instructed them that when they entered an establishment which sold cigarettes by machine, that they were to ask for change, specifically mentioning that it was for the cigarette machine. The license inspector also stated that the decoys entered the establishments with no purse or wallet, no identi£ication, and onl� the five dollar bill she handed them. The license inspector testified that she sent the decoy into the Dublin Bar and was waiting in the car in the parking lot, which is behind the establishment. The decoy went in with no cigarettes, no money other than the $5 bill she was given, and instructions to attempt to purahase cigarettes. She was fully aware that she was to enter the Dublin Bar, not any other establishment. She came out several minutes later with a package of cigarettes and the change, and the license inspector went inside to inform them that they had sold cigarettes to a minor. The Memorandum of Law attached to the ALJ's Findings indicates that unless someone saw the sale, the City does not meet its burden of proof. This is simply a misstatement of law, since even under the criminal standard of "proof beyond a reasonable doubt", circumstantial evidence can be sufficient to prove a case_ There are countless situations where a fact can be established without an eyewitness. If the credible evidence establishes that it is more likely than not that the sale was made by an employee of the Dublin Bar, then the City has met its burden. The evidence put in by the City was that the decoy, a minor, entered the bar without cigarettes, but with a five dollar bi11 and instructions to ask for change to use the cigarette machine. She was informed prior to the compliance check about the purpose of the checks, she was aware that the establishment that she was to go into was the Dublin Bar, and she had performed other compliance checks that evening. After several minutes inside, she returned to the car with cigarettes and change. The inspector went inside and informed the licensee that cigarettes had been sold to a minor and they made no denial at the time. She talked to the person behind the bar, who remembered giving change, and the licensee was present. The ALJ also stated in his memorandum that "[t]here was evidence, however slight, that the cigarettes could have come from a restaurant next door to Dublin Pul� or a service station across the street." The evidence of the License Inspector as well as one of the licensee`s witnesses was that the restaurant next door to Dublin Pub was closed at the time the compliance check was done. Therefore, the cigarettes could not possibly have come from the restaurant next door. The service station to which the ALJ refers is across University Avenue (four traffic lanes and a median), and ��-� �-� the License Inspector testi£ied that it was the subject of a compliance check immediately before the Dublin Bar. It passed, refusing the sale because the decoy had no identification. The scenario raised by the licensee, that the cigarettes were purchased elsewhere, was not a credible one. As pointed out in the City's argument, it would require the factfinder to believe that for unspecified reasons the decoy, although instructed to enter the Dublin Bar to attempt to buy cigarettes, chose to go across University Avenue and purchase cigarettes from an entirely different establishment, yet come back and lie to the inspector. Reason and common sense indicate that speculation that the cigaretttes could have been purchased elsewhere is not credible testimony, and that the evidence is sufficient to show that the cigarettes were purchased at the Dublin Bar. Based on the testimony presented by the license inspector, there is support in the record to find that a sale of tobacco was made to a minor by an employee of the Dublin Bar on October 26, 1996, in violation of both state law and city ordinance. Dated this 4th day of February, 1997. �� _ � �.� Virgi D. Palmer Assistant City Attorney 400 City Hall 15 W. Kellogg Boulevard Saint Paul, MN 55102 (612) 266-8710 Attorney for LIEP �� a � � PROPOSED AMENDED FINDINGS OF FACT AND CONCLUSIONS FINDINGS OF FACT: 9. The minor did not testify at the CONCLUSIONS OF LAW: �� a.� . „ a�� -3 �-`l File No. 57-2111-10862-6 Si"ATE OF MINIVESOTA OFFiCE OF ADMINISTRATIVE HEARINGS FOR THE ST. PAUL CiTY COUNCIL In re the Licenses of Scanlon's Ace Box Bar & Pub, inc. d/b/a Dubfin Bar FINDfNGS OF FACT, 2162 Universiiy Avenue West CONCLUSIONS OF LAW St. Paui, Minnesota AND RECOMMENDATION The above entitied matter came on for hearing before Administrative �aw Judge ,lames H. Ranum on December 18, 1996 in Room 220 of Conference Room B at the Soard of County Commissioners, 15 West Kellogg 8oulevard, St. Paul, Minnesota. Virginia D. Palmer, Assistant St. Paul City Attorney, 400 City Hal1, i5 West Keilogg Boulevard, St. Paul, Minnesota, appeared on behalf of the Office of License, Inspections and Environmental Protection. The licenseholder Thomas C. Scanion appeared at the hearing representing the Dublin Bar. Scanlon's Ace Box Bar & Pub, inc. hold the license whiie doing business as Dublin Bar on 2162 University Avenue West, St. Pauf, Minnesota 55114. -1- �,� _� �2 m The record closed on December 19, 1996, the date of the fast submission by the parties. These Findings and Conclusions may be appealed to the St. Paui City Council by any aggrieved person by filing a notice with the City Clerk. The appeal wiii then be scheduled for a hearing at the next City Councif ineeting. These appeal provisions are contained in Section 331.05(m)(5), St. Paul Legislative Code. STATEMEiVT OF ISSUE The issue to be determined in this case is whether grounds ex+st ta support the assessment of penaities against Dublin Bar. FiNDiNGS Of FACT 1. Scanlon's Ace Box Bar & Pub, Inc. does business as Dubiin Bar. Dublin Bar is a bar serving aicoholic beverages and dispensing tobacco at 2162 University Avenue West, St. Paul, Minnesota. 2. The City has brought this adverse action against the licenses held by Dublin Bar alleging a violation of St. Paul Legislative Code. 3. Minn. Stat. 609.685, Sale of Tobacco to Chiidren, provides in pertinent part: Subd. 1. Definitions. For the purpose of this section, the foflowing terms shall have the meanings respectively ascribed to them in this section. (a) 'Tobacco" means cigarettes; cigars; cheroots; stogies; perique; granulated, piug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flower, cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, ciippings, -2- �� -� cuttings and sweepings of tobacco; and other kinds and forms of tobacco, prepared in such a manner as to be suitable for chewing or smoking in a pipe or other tobacco-related devises. (b) "Tobacco reiated devices" means cigarette papers or pipes for smoking. Subd. 1a. Gross misdemeanor. (a) Whoever sells tobacco to a person under the age of 18 years is guilty of a gross misdemeanor. 4. Section 324.07 of the St. Paui Legislative Code provides: No person shall sell or dispense cigarette paper or cigarette wrappers from a vending machine or a motor vehicle. No person shall sell or dispense tobacco from a motor vehicle. No person shali activate the remote control or provide tokens for any tobacco vending machine for sell tobacco to anyone under the age of 18. Any violation of this chapter shal! sub}ect the iicensee to provisions of Seetion 3i8 and Section 324.70 of St. Paul Legislative Code. 5. On October 26, 1996, a staff member of the L�EP drove a person who was be(ow the age of majority to the Dublin Bar. The minor was sent into the Dublin Bar with money and instructed to purchase cigarettes from the establishment. 6. The staff member remained in her vehicfe after the minor had departed and was unable to see any transaction inside the Dublin Bar. 7. In addition to the Dubiin Bar there was a resta��rant next door and a service station aaoss the street where cigarettes were sold. 8. When the minor returned to the staff member's vehicle, she had with her an unopened pack of cigarettes. -3- a.� �� 2�2 9. The minor did not testify at the hearing and the hearsay testimony was not sufficiently reliable. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the foliowing: CONC�USiONS 1. The Administrative Law Judge has jurisdiction in this matter pursuant to Section 331.05(m)(4) of the St. Paul Legislative Code and Minn. Stat, 14.55. 2. The Notice of fiearing was proper and the City has complied with a{f other substantive and procedurai requiremerrts ofi law or rule. 3. The Council of the Gity of St. Paui has the authority to provide for hearings concerning licensed premises and for adverse action against such licenses, under Chapter 310, including Sections 310.05 and 3�O.OE, of the St. Paui Legislative Code. in the case of licenses for intoxicating and non-intoxicating liquor, authority is aiso conveyed by Minn. Stat. §340A.4i5. Adverse action may include revocation, suspension, fines and other penaities o� conditions. 4. The City did not estabiish by a preponderance of the evidence that the licensee violated Minn. Stat. 609.685. 5. The City did not establish by a preponderance of the evidence that the licensee violated Minn. Stat. 324.07. � ��-�� RECOMMENDATION The undersigned recommends no penalties against Dublin Bar. � Dated this �? day of _!� 1997. ME H. RANUM Adminy tsative Law Judge -5- MEMOFiANDUM OF LAW 4 V ~� V / The City of St. Paul failed to prove by a preponderance of the evidence that the licensee sold tobacco to a minor at the time and place alleged. See Civil Jury Instruction Guide JIG ii 70. in In re Kaidahi, 418 N.W.2d 532, 535 (Minn. App. 1988), the Minnesota Court of Appeals stated: The burden of proof in Ka{da I's criminal misdemeanor trial was different from the burden of proof in the administrative proceeding which resuited in the administrative order. Un{ess otherwise provided by substantive law, the facts at issue in administrative hearings and contested cases must be proven by "a preponderance of the evidence." See Minn. Rule 1400.7300, Subpart 5(1985); in re Schuftz, 375 N.W.2d 509, 514 (Minn. App. 1985). In the present case in the absence of someone testifying that they saw the sale, the City does not meet its burden of proof. There was evidence, however siight, that the cigarettes coufd have come from a restaurant next door to Dublin Pub or a service station across the sueet. A staff member acknowledged that she did not see the transaction inside the bar. Although circumstantial evidence is sufficient to meet the burden, the facts in the present case do not. JHR � 1 � OFFICE OF TI� CITY ATTORNEY Tanothy E. Mur� City Attorreey qr � q l /.�0� CI'TY OF SAINT PALTL Nonrs Coleman, Mayor Civi1 Divirion 400 Ciry Hal[ 73 West Xellogg Btvd Sa'mt Paui, 1L£uuiesa�a 55102 Telephone: 612 266-8710 Facsimile: 672 298-5619 December 1S, 1996 The Honorable James Ranum Fifth Street Towers, Ste. 1960 150 South Fifth Street Minneapolis, MN 55402 RE: In the Matter of the Licenses held by Scanlon's Ace Box Bar & rub, Inc. d/b/a Dublin Bar Dear Judge I2anum: The City submits this letter in response to the question posed at today's hearing regarding the appropriate evidentiary standard in an administrative hearing. In a civil hearing concerning adverse action on municipal licenses, the correct standard of proof is that of a"preponderance of the evidence." The City's evidence must lead the trier of fact to believe that it is more likely than not that the allegations are true. Civil Jury Instruction Guides, JIG II 70. If there is the slightest tipping of the scales in the direction of the City by credible evidence, then the burden has been met. In the case of In re Kaldahl, 418 N.W.2d 532,535 (Minn. App. 1988), the Minnesota Court of Appeals stated: The burden of proof in Kaldahl's criminal misdemeanor trial was different from the burden of proof in the administrative proceeding which resulted in the ;ad;;ir�istrati�e) order. *** Unless otherwise provided by substantive law, the facts at issue in administrative hearings and contested cases must be proven by "a preponderance of the evidence." See. Minn.R. 1400.7300, subp.5(1985); In re Schultz, 375 N.W.2d 5�9,514 (Minn.App. 1985) Respectfully sub�tted, i ��5� �� Virgi ia-D. Palmer Assistant City Attorney cc: Thomas Scanlon �. . CITY O� SAINT FAUL Nornr Co7emmx Mayor Idovember 15, 1996 Thomas C. Scanlon and Dublin Bar 2162 University Avenue Saint Paul, Minnesota OFFICE OF THE CITY ATTORNEY Tvnofiry E. Marx Ciry Amm�ey �� a�7 CivADivision 400 Ciry Hall 1 S Weat Xellogg Btvd Sainr Paul M'mnuom 55101 Telephone: 612 266-8710 Facsimik: 6l2 298-5619 NOTICE OF HEARING Jean M. Scanlon West 55114 RE: All licenses held by Scanlon's Ace Box Bar & Pub, Inc. d/b/a Dublin Bar for the premises located at 2162 University Avenue West in St. Paul License ID No._ 15999 Our Fi1e Number: G96-0539 Dear Mr. and Ms. Scanlon: Please take notice that a hearing will be held at the following time, date and place concerning all Iicenses for the premises stated above: Date: Fiednesday Decembes 18, 1996 Time: 9:30 a.m. Place: Room 220, Conference Rm 8 Soard of County Commissioners St. Paul City Hall 15 YS. Rellogg Blvd. Saint Paul, NIId. 55102 The hearing will be presided over by an Administrative Law Judge £rom the State of Minnesota Office of Administrative Hearings: Name: James Ranum Fi£th Street Towers, Suite 1960 150 South 5th Street Minneapolis, i�i. 55402 Telephone: 333-7579 The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse actian against such licenses, under Chapter 310, including sections 316.05 and 310.�6, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non-intoxicating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse '� • Scanlon's Ace Boa Bar & Pab, Inc. � — d/b/a Dublin Bar -- City's Egh. No. 4 j �� - � �-2 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 you hold at the above premises as follows: On October 26, 1996, you or another employee sold cigarettes to a minor under the age of 18 years in the licensed premises. This is an o£fense under Mina. Stat. �609.685 and Saint Paul Legislative Code �324.07. You have the right to be represented by an attorney before and during the hearing or you can represent yourself. You may also have a person of your choice represent you, to the extent not prohibited as unauthorized practice of law. 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 Administrative Law Judge will 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 hear 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 prepare 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 documents in conformity with Minnesota Rules, part 1400.7000. If you think that a stipulation or agreement can be reached as to the facts, that stipulation will be presented to the Administrative Law 3udge for incorporation into his or her recommendation for Council action. If you fail to appear at the hearing, your ability to challenge-the Notice of Hearing - Page 2 � �. . �� a� allegations will be forfeited and the allegations against you 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 public unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. Very truly yours, �/�� . Virginia D. Palmer Office of the City Attorney cc: Nancy Thomas, Office o£ 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 Abby Struck, Community Organizer, St. Anthony Park Community Council, 890 Cromwell Ave., St. Paul, MN 55114 Notice o£ Hearing - Page 3 t �� ''� �� STATE OF MINNESOTA COUNTY OF RAMSEY ss. AFFIDAVIT OF SERVICE BY MAIL JOANNE G. CLEMEN`TS, being first duly sworn, deposes and says that on November 18, 1996, she served the attached NOTICE OF HEARING on the following named persons by placing a true and correct copy thereof in an envelope addressed as follows: Thomas C. Scanlon and Jean M. Scanlon Dublin Bar 2162 University Avenue West Saint Paul, MN. 55114 (which is the last known address of said persons) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 18th day of November, 1996. Ce,� �, �� N �t ry �PUb ' ,�„�,�„ � �f K,qT� R'YN J. tRc�ACGN,UP1 �;.ot::,;� ou5�:c-nhr,:r,esora � n^Pd✓,SEY COUNTY My Comin. Expires Jan 31, 2000 • e F � �� ,� asj OFFICFi OF ADMINISTRATIVE HEARINGS FOR THE COUNCIL OF THE CITY OF SAINT PAUL In re the Licenses of Scanlon's Ace Box Bar & Pub, Inc. d/bfa Dublin Bar 2162 University Avenue West CITY'5 PROPOSED EXHIBITS December 18, 1996 TO: Judge James Ranum, Administrative Law Judge, Office of Administrative hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401-2138 The following constitutes the proposed Hearing Exhibits of the City's Department of License, Inspections and Environmental Protection. Exhibit No. Exh. No. 1 Exh. No. 2 Exh. No. 3 Exh. No. 4 Description Tobacco Compliance Check Form dated October 26, 1996 (1 p.); License information re Scanlon's Ace Box Bar & Pub, Inc. d/b/a Dublin Bar (2 p.); Notice of Violation dated November 6, 1996 with Affidavit of Service (3 pp.). Notice of Hearing dated November 15, 1996, with Affidavit of Service (4 pp.). �� 3� Also attached please find courtesy copies of applicable St. Paul City ordinances and State of Minnesota statutes: St. Paul Legislative Code St. Paul Legislative Code St. Paul Legislative Code St. Paul Legislative Code Minnesota Statute § 310.05 § 310.06 � 310.17 Chapter 324 § 6a9.685 Respectfully submitted this 18th day of December, 1996. �� n� Virgi 'a D. Palmer � � Attorney at Law Office of the City Attorney 4�0 City Ha11 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 (612)266-8710 T08PCCA COMPUANCECHECKFORM S DATE: QJL7 � TIME: .S' . 2� TAX I. D. NUMHER: a NAME OF COMPt1ANCE CHECI�R L 7,.., o�, NAME OF OFFICER K x an G`� '� � NAMEANDADDAESSOFUCENSEDVENDOR �ca�b�( �= Z Lna �.�-�-.:•J � WAS THETOHA�Cd - SELF SEFiVE? ASSIS7ED't MACHPIE? �[ SALE WAS MADE YES N0: BRAND: '� 1�1:...., . �, rs�, � NAM£ OF CIFAK: 1 Y� .� i��,^t ".-'1�( �i 1.c� � SFX: M `.� ` F: DESCRIP110N: u� �t �i.e. ,�. ,�.-r � ��.--✓�....� t'�',l�o'— CHECK ABORIED: YES N0: ADDITIONAL CONMENTS: � � � _ Scanlon's Ace Boa Bar & Pub, Inc. dfbfa Dublin Bar J City's Exh. No. 1 _ > Lic ID ................... STAT ..................... Business Name............ Doing Business As........ Address .................. Zip ...................... E� Date ................. License Name ............. NOTE AREA ................ � � Scanlon's Ace Box Bar & Pub, Inc. — d/b/a Dublin Bar — City's Exh. No. 2 15994 AC �� '� SCANI,ON'S ACE BOX BAR & PUB INC DUBLIN PUB 2162 UNIVERSITY AVE W 55114 03/31/97 LIQ-ON SAI,E-1005EATS/LESS-C SUNDAY OI3 SALE LSQUOR ENTERTAINMENT-CLASS 2 RESTAURANT {B)-MORE THAN 12 SEATS GAMBLING LOCATION (CLASS C) CIGARETTE INSP CHANGE FROM 02 TO O1 ON 3/20/92 INSPECTOR CHANGE FROM BARB TO MIKE - 1/6/92 11633 70 SEATS 5-5-87 022088 REFUND IN PROCESS E'OR DIFFERENCE BETWEEN CL A5S B& CLAS5 D ENTERTAINMENT LICENSE 022588 REFi3ND PROCESSED FOR DIFFERENCE IN ENTERTAI NMENT LICENSE (CLASS D TO CLASS B) P.V. V-160-0291 Press <RETURN> to continue... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° . 121989 CITY ATTORNEY'S OFFICE ANNOUNCED DATE OF 01 . 1090 FOR PUBLIC HEARING BEFORE AN ADMINISTRATIVE L . AW JUDGE PERTAINING TO POSSIBLE ADVERSE ACTION . 122889 CITY ATTORNEY ANNOUNCED A RESCHEDULED DATE . OF 011290 AS A PUBLIC HEARING DATE FOR POSSIBLE AD . VE12SE ACTION AGAINST SCANLON'S ACE BOX BAR & PUB, . INC. . 032990 REPORT OF ADMIN LAW JUDGE HEARD BY COUNCIL . 041790 ALL LICENSES SUSPENDED FOR ONE YEAR FOR TWO . CONS. DAYS COMMENCING ON SUNDAY FOLLOWING PUBLICA . TION OF THIS RESOLUTIION (PUBLI5H DATE 042890) BUT . SAID SUSPENSION STAYED FOR A PERIOD OF ONE YEAR - . APP'D C.F. 90-622 . 071790 PH HELD REPEALING C.F. 90-622 - LICENSEHOLD . ER REPRIMANDED IN LIEII OF SUSPENSION - APP'D C.F. . 90-1199 . 4J23/92 LEfiTER FROM CITY ATTORNEY ANNOUNCED 5/7/92 . AS A PUBLIC HEARING DATE BEFORE AN ADMINISTRATIVE . LAW JUDGE. . 060292 PH ON SUSPENDING ON SALE LIQUOR, SUNDAY, RE . STAURANT, GAMBLING LOCATION & CIGARETTE LICENSE (U . NCONTESTED) COUNCIL RECOMMENDED 3 DAY SUSPENSION/2 Press <RETURN> to continue... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° DAY STAY (SUBMISSION OF RESOLUTION TO BE ADOPTED 6f16f92) 061692 PH SUSPENDING LICENSES AS LISTED ABOVE FOR THREE CONSECUTIVE DAYS WITH TWO OF THE DAYS STAYED �t�t -`� �I Bond Policy Number....... Bond Company ............. Bond Effective Date...... Bond Expiration Date..... Insurance Carrier........ Ins. Policy Number....... Insurance Effective Date. Ins. Expiration Date..... Associated Stock Holder.. FOR A PERIOD OF 18 MONTHS COI3DITIONED UPON I30 FUR THER VIOLATION COMMENCING 6j21/92 FOR THE SALE OF ALCOHOLIC BEVERAGES TO A MINOR APP'D C.F. 92-724 1996 7o DISC FOR ALCOHOL AWARENESS TRAINING APPLIED TO 2ND 1/2 --L,AP-LIC 10-4-96--CHANGE OF DBA FROM ACE BOX BAR TO DiTBLIN PUB PER LICENSEE--LK--LIC T.H.E. INS CO T.B.A. 03/25/96 03j31/97 THOMAS C SCANL0I3 JEAN M SCANLON Dealer No ................ Press <RETURN> to continue... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLO5ED ° PRINT OFF ° Tax Id ................... 3080579 Worker Comp Exp Date..... 11/13/93 Telephone ................ 646-5551 Press 'C' to continue, 'P' to print, or 'R' to redisplay... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° i �• . � OFFI�F TE� CITY ATTORNEY Tunothy �mx, City Attorney CITY OF SAINT PAUL Norm Colemmr, Mayar November 6, 1996 Civil Drvision 400 City Hal! IS West IfelloggBlvd Saint Pau� Mmnesota SSl02 NOTICE OF VIOLATION Thomas C. Scanlon and Jean M. Scanlon Dublin Bar 2162 University Avenue West Saint Paul, Minnesota 55114 � � -'32y ! Telephone: 6I2166-8710 Facsimile: 6l2 298-56/9 RE: All licenses held by Scanlon's Ace Box Bar & Pub, Inc. d/bJa Dublin Bar for the premises located at 2162 University Avenue West in St. Paul License ID No.: 15999 Dear Mr. and Ms. Scanlon: The Director of the Office of License, Inspections and Environmental Protection will recommend that adverse action be taken against all the licenses held at the above-named premises. This recommendation is based on the following: On Octo r 26, 1996, you or another employee sold cigar tes to a minor under the age of 18 years ia the }� licen ed premises. This is an offens nnde� Stat. �� §609.68 d Saint Paul Lesisl ' e Code §324.07. If you do not dispute the above facts, and send me a letter to that effect within 5 days, the case will be set before the City Council. You will have a chance to appear and make a statement before the Council as to the proper penalty, if any, to be imposed. If you do dispute the above facts, a hearing will be set before an Administrative Law Judge. At that hearing both you and the City will be able to appear and present witnesses, evidence and cross- examine the other's witnesses. The Council will ultimately decided the case. If this is your choice, please advise my legal assistant, Peter Pangborn, within 5 days, and we will take the necessary steps to set up that ALJ hearing. He can be reached at 266-8710. Page 1 /�� ■ _ Scanlon's Ace Box Bar & Pub, Inc. d!b/a Dublin Bar —� City's E%h. No. 3 . " '` � � �� -� If you have any questions, you may contact me at 266-8710. Sincerely, ��1 `./ ��uiClia"�- � �. C*.-�vw/`— Virginia D. Palmer Assistant City Attorney cc: Robert Kessler, Director, LIEP Christine Rozek, LIEP Abby Struck, Community Organizer, St_ Anthony Park Community Council, 890 Cromwell Ave., St. Paul, MN 55114 Page 2 17'96(TUE) 10:36 OPFICE�OF ADMIN.HEAR[NG � ; ANSACTION REPORT j� cePtlon aasaction(s) completed OY�� TX ➢ATE/TIME DESTIRATION . r 97 DEC.17 10:34 612 298 5619;, i .,'ii � � ' � �� " � � M � � � � , � �� „ � � � �� `�t � # � t � 4 � � n � r. x k < `3"r: TEL:6123492665 P.001 °« - � a� DURATION PGS. RESULT MODE 0° O1' S1" 004 OK N ECM _� .. � STATE OF MINNESOTA ) ) ss. COUI3TY OF RAMSEY ) � �� a7 AFFIDAVIT OF SERVICE BY MAIL JOANNE G. CLEMENTS, being first duly sworn, deposes and says that on I3ovember 7, 1996, she served the attached NOTICE OF VIOLATION on the following named persons by placing a true and correct copy thereof in an envelope addressed as follows: Thomas C. Scanlon and Jean M. Scanlon Dublin Bar 2162 University Avenue West St. Paul, MN. 55114 (which is the last known address of said persons) and depositing the same, with postage prepaid, in the United States.mails at St. Paul, Minnesota. /—'� � Subscribed and sworn to before me this 7th day of November, 1996. _, � - �� '�e / � • ` • � RITA Pv1. BOSSARD � ; N07ARYPUBIIC-MINNESOTA S _ Ran�sev cours � v �� My Comm. Expires Jan. 31, 2000 � STATE OF MINNESOTA G � c -� ` �J OFFICE OF ADMINISTRATIVE HEARINGS t i ��` 104 Washington Square, Sufte 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 January 15, 1996 Fred Owusu City Clerk 170 City Hall 15 W. Kellogg Blvd. St. Paul, MN 55102 Re: ln the Matter of the License of Scanlon's Ace 8ox Bar & Pub, Inc. Dibia Dublin Bar. OAH Docket No. 57-2111-10862-6 Dear Mr. Owusu: On January 13, 1997, Administrative Law Judge Ranum served the Findings of Facf, Conciusions and Recommendation in the above-entitled matter. Enclosed is the official record, including a copy of the tape recording of the hearing. Our file in this matter is now being closed. Very truly yours, `�� `�il • ,i�� C Nancy M. Thomas Docket Clerk Te�ephone: 612/341-7615 NT Enc. Providing Impartial Hearings for Government and Citizens An Equal Opportu E Administrative Law Section & Adminlstrative Services (612) 341-760D � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 ��"� �� AFFIDAVIT OF SERVICE BY ?SAIL STATE OF 2�IINNESOTA ) ) COIINTY OF HENNEPIN ) James ri_ Ranum, of �ne CiLy of Minnea�olis, County o� Hennepin, in the State of i�=nnesota, beir_g duly sworn, says that on the 13 of ,jc+�.�_ , 199�i, he serred the foilowina: � o on ��^a s G mailing a depositing directed t �ae� � �` ; Cc�i.+C'L.u.Sce�' 4�1r P �,,.`'' �, ¢.Z �� i ic� t� t �-�/ � Sc �y for the �"-y�``- �Z" b Y copy thereof in an envelope, postage prepaid, and by same in the post office at Minneapolis, Minnesota, o said attorney at: `� � t'o 2(.ln,�.;eo.t� U,A,�.+1.c - �.7 �v e C.✓F� Sk- �'c , �a� � � ( � 4 � � 4cx� F 3-y �n« �� i5 � d Z<e(��,� s�, P�. l � M,, li�e.� �Ci � � eiL�. last known address of said ��ey. `� e H. Ranum Subscribe3 and swo to before me this l3fihday of�. , 199�. i2� 'f �� / o� MARIAH.THOMPSON NOTARYPUBLIC-MINNESO7A NOtdY'y Pub1iC HENNEPINWUNTY •�� MyCommissionExpirsJan.31.2000 �'� r;� f. �`� a ,� ` ,� r , � Council File # i �` u �[ .� e . -. k . .`Y :. _ Green Sheet # RESOLUTION CITY OF SAINT PAUL, MINNESOTA Presented By Referred To 1 2 3 4 5 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 41 42 43 Committee: Date q�_3a ��Z�� ID RESOLVED, that the licensee, Scanlon's Ace Box Baz & Pub, Inc. d/b/a the Dublin Baz, located at 2162 W. University Avenue in Saint Paul is hereby ordered to pay a fine in the amount of $200 for the violarion of the sale of tobacco to a minor, occurring on the licensed premises on October 26, 1996. Said fine shall be paid to the Office of License, Inspections and Environmental Protection within thiriy (30) days of the adoption of this resolurion by the Council and signature by the Mayor. FURTHER RESOLVED, that the findings of fact and conclusions of law contained in the ALJ Report in this case, dated January 13, 1997, are adopted as the written findings and conclusions of the Council in this matter, except as modified below. The reasoning of the Memorandum of the AL7 attached to the findings and conclusions is not adopted. The recommendation of the ALJ is also not adopted. FURTHER RESOLVED, that the following amendments to the ALJ Report aze hereby adopted: 1. Finding of Fact No. 9 is hereby amended to read as follows: 9. The minor did not testify at the heazing� °~a ��p � ...:......... . ..... ....�,.:,...a. _,.,:,,w,,. �a?iie��1S::�rizSal..AYS�i 2. A new Finding of Fact No. 10 is hereby adopted to read as follows: 3. A new Finding of Fact No 11. is hereby adopted to read as follows: � �l - � a�1 4. A new Finding of Fact No. 12 is hereby adopted to read as follows: 5. A new Finding of Fact No. 13 is hereby adopted to read as follows: 6. A new Finding of Fact No. 14 is hereby adopted to read as follows: 7. A new Finding of Fact No. 15 is hereby adopted to read as follows: 8. A new Finding of Fact No. 16 is hereby adopted to read as follows: 9. Conclusion of Law No. 4 is deleted in its entirety, and a new Conclusion of Law No. 4 is hereby adopted to read as follows: 10. Conclusion of Law No. 5 is deleted in its enrirety, and a new conclusion of Law No. 5 is hereby adopted to read as follows: i 2 3 4 5 6 7 8 9 10 11 12 �� a� This Resolution is based on the recard and proceedings before the ALJ on December 18, 1996, the documents and exhibits introduced therein, the fmdings of fact and conclusions of the ALJ as referenced above, the written exceptions filed by counsel far the Office of License, Inspection and Environmental Protection, the arguments and statements of the parties on February 26, 1997, and the deliberations of the Council in open session on that date. A copy of the Resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge, and to Mr. Thomas Scanlon. Requested by Department of: By: Form Approved by City Attorney / \ 1 BY: �°��Jc� /�.c.l�.2 f� � � i By Approved by Mayor: Date �E� BY= .`—�.� . by Mayor for Submission to sy: Adopted by Council: Date ` � �'"'1 Adoption Certified by Council Secretary � �Z -� � flf��.�, �E�A7MENTqFFlCElC0�NC1� DATE INITIATED Ciry Council Offices 3-25-1997 GREEN SHEE COMACf PERSON & PHONE M�TIAVDATE INITIAUDATE �DEPARTMENT�IRECTOR OCITYCOUNCIL Roberta Megazd, 266-8640 �ewN � CITV ATfORNEV � dTV CLERK NUMBENFOq MUST BE N CAUNCIL AGENDA BV (DATE) pp� � BUW Ef DIqECTOR � FIN. & MGT SFAVIqES DIR. A 1'1� 2 199,� OqOEp � MAYOR (OR ASSISTANT) � TOTAL # OP SIC�NATURE PAGES (CLIP ALL LOCATIONS FOR SIGNATURE) ACTION REQUESTED: Finalizing Ciry Councfl acfion taken on February 26, 1997, concerning adverse action againstlicenses held by Scanlon's Ace Box Baz & Pub, Inc., DBA Dublin Baz, 2162 W. Universiry Avenue. PECOMMENDATIONS: Approve EQ) or Aaject iPo PERSONAL SEflVICE CONTRACTS MUST ANSWER TXE FOLLOWING QUESTIONS: _ PLANNING CAMMISSION _ CIVIL SERVICE CpMMISSION �� Has this petsonflirm eve� worked untler a cOMract for this department? _ CIB COMMRTEE YES NO _� � 2. Has this person/firm eve� been a city employee? — VES NO _ DISTRIC7 CpURT __ 3. Does thi5 BrsonRifm p possess a skill not normally possessed by any curtent ciry emplqree? SUPPORTS WHICH COUNCIL OBJE(;'fIVE? YES NO Explain all yes anawers on seperate sheet and atteoh M gresn sheet INITIATING PRQBLEM, ISSUE, OPPp�{UNITY (WM, What, When, Whora. Why): A�YANTAGESIFAPPROYEb � DISADVANTAGES 1F AFPARYE@, � � �"�a°l&��r� 4^ ��.. ,.'m.� P,e�� d&§3A `�f b Cd ta £+��f / DISADVANTAGESIFNOSAPPflOVED. �� T07AL AMOUN70F TRANSAC710N $ COST/pEVENUE BUDGETED (CIRCLE ONE) YES NO FUNDI{AG SOURCE ACTNITY NUMBER FINANCIAL INFORAhAT10N. (EXPLAIN) OFFICE OF TEIE CITY ATTORNEY � a n Trmothy E. Mar� Ciry Attorney C7 +� _ � i, CITY OF SAINT PAUL Norn� Coleman, Mayor C"rv'rt Div"uion 400 Ciry Ha(1 IS Wut Kellogg Blvd Sa'mt Paul, M'rmreso7a 55702 Telephone: 611166-8710 Facsimi7e: 672 298-5679 January 31, 1997 NOTICB OF COUI3CIL HEARING Mr. Thomas C. Scanlon and Ms. Jean M. Scanlon Dublin Bar 2162 University Avenue West Saint Paul, Minnesota 55114 Re: In the Matter of the cigarette license of Scanlon's Ace Box Bar & Pub, Inc. d/b/a Dublin Bar for the premises located at 2162 University Avenue West in St. Paul ' License ID No.:15999 Our File Number: G96-0539 Dear Mr. and Ms. Scanlon: Please take notice that a hearing on the report of the Administrative Law 3udge concerning the above-mentioned license has been scheduled £or 4:30 p.m., Wednesday, Bebruary 26, 1997, in the City Council Chambers, Third Floor, Saint Pau1 City Ha11 and Ramsey County Courthouse. You have the opportunity to file exceptions 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 will 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 judgement and discretion. Sincerely, �� j�� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Robert Kessler, Director, LIEP Christine Rozek, LIEP Abby Struck, Community Organizer, Council, 890 Cromwell Ave., ;�w . ,. �:,`u'� �� -� Secretary, 310 City Hall St. Anthony Park Community St. Paul, MN 55114 OFFICE OF Tf� CITY ATTORNEY�� ,� � n Timothy E. Maix, Ciry Anorney � CITY OF SAINT PALTI, Norne Coleman, Mayor CivllDivufon 400 City Hall is wes: �uo� sha Sami Puul, M'mnesom SSIO2 Telephone: 612 266-8710 Facsimite: 6I2 298-5619 February 5, 1997 Ms. Nancy Anderson Secretary to the City Council 310 City Hall 15 W. Kellogg Boulevard Saint Paul, MN 55102 RE: In re the Licenses of Scanlon's Ace Box Bar & Pub, dfb/a the Dublin Bar, 2162 W. University Avenue Council Hearing - Rebruary 26, 1997 Dear Ms. Anderson: Enclosed for filing, and for inclusion in the agenda materials furnished to the Council in connection with the hearing on the above matter are the Written Exceptions of the Office of License, Inspections and Environmental protection to the report of the Administrative Law Judge. Sincerely, `/ � : � �� ✓G � �� Virgin�'a D. Palmer Assistant City Attorney enc. cc: Robert Kessler, Director of LIEP Mr. Thomas Scanlon, Licensee �� STATE OF MINNESQTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CI`PY OF SAINT PAUL Case No. 57-2111-10862-6 In re the Licenses of Scanlon`s Ace Box Bar & Pub, Inc. dJb/a the Dublin Bar, 2162 W.University Ave. I. Recommendations of the ALJ WRITTEN EXCEPTIONS The ALJ has recommended no penalty against the licensed establishment, based upon his finding that the Cit�rfailed to prove by a preponderance of the evidence that the licensee sold tobacco to a minor. II. LIEP Position The Office of License, Inspections and Environmental Protection (LIEP) believes that the evidence in the record supports additional Findings of Fact and Amended Conclusions of Law, that there was sufficient proof that the sale of tobacco was made to a minor by an employee of the Dublin Bar and that a penalty should be imposed on the licensee for the sale of tobacco to a minor. The City Council is requested to adopt the new and amended Findings of Fact and Conclusions attached hereto, and to impose a penalty of $200 on the licensee. III. Issue The Administrative Law Judge found that the City had not proved by a preponderance of the evidence that the licensee sold tobacco to a minor at the time and place alleged. The judge correctly noted that the standard of proof is not the same as is needed for a criminal trial, but still applied the wrong balancing test to the evidence. A'�preponderance of the evidence" means evidence which would lead the trier of fact to believe that it is more likely than not that the aase is true. If there is the slightest tipping of the scales in the direction of the City by credible evidence, then the City has proved its case. °Q � ''� � 2 The ALJ's Findings of Fact leave out much of the testimony that was put in by the City license inspector, Kristina Schweinler. Ms. Schweinler testified that on October 26, 1996, she was performing cigarette compliance checks at a number of licensed establishments with the assistance of two minors. After picking the minors up at their homes, she had fully e�;plained the purpose o£ the cigarette compliance checks to them, and had instructed them that when they entered an establishment which sold cigarettes by machine, that they were to ask for change, specifically mentioning that it was for the cigarette machine. The license inspector also stated that the decoys entered the establishments with no purse or wallet, no identi£ication, and onl� the five dollar bill she handed them. The license inspector testified that she sent the decoy into the Dublin Bar and was waiting in the car in the parking lot, which is behind the establishment. The decoy went in with no cigarettes, no money other than the $5 bill she was given, and instructions to attempt to purahase cigarettes. She was fully aware that she was to enter the Dublin Bar, not any other establishment. She came out several minutes later with a package of cigarettes and the change, and the license inspector went inside to inform them that they had sold cigarettes to a minor. The Memorandum of Law attached to the ALJ's Findings indicates that unless someone saw the sale, the City does not meet its burden of proof. This is simply a misstatement of law, since even under the criminal standard of "proof beyond a reasonable doubt", circumstantial evidence can be sufficient to prove a case_ There are countless situations where a fact can be established without an eyewitness. If the credible evidence establishes that it is more likely than not that the sale was made by an employee of the Dublin Bar, then the City has met its burden. The evidence put in by the City was that the decoy, a minor, entered the bar without cigarettes, but with a five dollar bi11 and instructions to ask for change to use the cigarette machine. She was informed prior to the compliance check about the purpose of the checks, she was aware that the establishment that she was to go into was the Dublin Bar, and she had performed other compliance checks that evening. After several minutes inside, she returned to the car with cigarettes and change. The inspector went inside and informed the licensee that cigarettes had been sold to a minor and they made no denial at the time. She talked to the person behind the bar, who remembered giving change, and the licensee was present. The ALJ also stated in his memorandum that "[t]here was evidence, however slight, that the cigarettes could have come from a restaurant next door to Dublin Pul� or a service station across the street." The evidence of the License Inspector as well as one of the licensee`s witnesses was that the restaurant next door to Dublin Pub was closed at the time the compliance check was done. Therefore, the cigarettes could not possibly have come from the restaurant next door. The service station to which the ALJ refers is across University Avenue (four traffic lanes and a median), and ��-� �-� the License Inspector testi£ied that it was the subject of a compliance check immediately before the Dublin Bar. It passed, refusing the sale because the decoy had no identification. The scenario raised by the licensee, that the cigarettes were purchased elsewhere, was not a credible one. As pointed out in the City's argument, it would require the factfinder to believe that for unspecified reasons the decoy, although instructed to enter the Dublin Bar to attempt to buy cigarettes, chose to go across University Avenue and purchase cigarettes from an entirely different establishment, yet come back and lie to the inspector. Reason and common sense indicate that speculation that the cigaretttes could have been purchased elsewhere is not credible testimony, and that the evidence is sufficient to show that the cigarettes were purchased at the Dublin Bar. Based on the testimony presented by the license inspector, there is support in the record to find that a sale of tobacco was made to a minor by an employee of the Dublin Bar on October 26, 1996, in violation of both state law and city ordinance. Dated this 4th day of February, 1997. �� _ � �.� Virgi D. Palmer Assistant City Attorney 400 City Hall 15 W. Kellogg Boulevard Saint Paul, MN 55102 (612) 266-8710 Attorney for LIEP �� a � � PROPOSED AMENDED FINDINGS OF FACT AND CONCLUSIONS FINDINGS OF FACT: 9. The minor did not testify at the CONCLUSIONS OF LAW: �� a.� . „ a�� -3 �-`l File No. 57-2111-10862-6 Si"ATE OF MINIVESOTA OFFiCE OF ADMINISTRATIVE HEARINGS FOR THE ST. PAUL CiTY COUNCIL In re the Licenses of Scanlon's Ace Box Bar & Pub, inc. d/b/a Dubfin Bar FINDfNGS OF FACT, 2162 Universiiy Avenue West CONCLUSIONS OF LAW St. Paui, Minnesota AND RECOMMENDATION The above entitied matter came on for hearing before Administrative �aw Judge ,lames H. Ranum on December 18, 1996 in Room 220 of Conference Room B at the Soard of County Commissioners, 15 West Kellogg 8oulevard, St. Paul, Minnesota. Virginia D. Palmer, Assistant St. Paul City Attorney, 400 City Hal1, i5 West Keilogg Boulevard, St. Paul, Minnesota, appeared on behalf of the Office of License, Inspections and Environmental Protection. The licenseholder Thomas C. Scanion appeared at the hearing representing the Dublin Bar. Scanlon's Ace Box Bar & Pub, inc. hold the license whiie doing business as Dublin Bar on 2162 University Avenue West, St. Pauf, Minnesota 55114. -1- �,� _� �2 m The record closed on December 19, 1996, the date of the fast submission by the parties. These Findings and Conclusions may be appealed to the St. Paui City Council by any aggrieved person by filing a notice with the City Clerk. The appeal wiii then be scheduled for a hearing at the next City Councif ineeting. These appeal provisions are contained in Section 331.05(m)(5), St. Paul Legislative Code. STATEMEiVT OF ISSUE The issue to be determined in this case is whether grounds ex+st ta support the assessment of penaities against Dublin Bar. FiNDiNGS Of FACT 1. Scanlon's Ace Box Bar & Pub, Inc. does business as Dubiin Bar. Dublin Bar is a bar serving aicoholic beverages and dispensing tobacco at 2162 University Avenue West, St. Paul, Minnesota. 2. The City has brought this adverse action against the licenses held by Dublin Bar alleging a violation of St. Paul Legislative Code. 3. Minn. Stat. 609.685, Sale of Tobacco to Chiidren, provides in pertinent part: Subd. 1. Definitions. For the purpose of this section, the foflowing terms shall have the meanings respectively ascribed to them in this section. (a) 'Tobacco" means cigarettes; cigars; cheroots; stogies; perique; granulated, piug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flower, cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, ciippings, -2- �� -� cuttings and sweepings of tobacco; and other kinds and forms of tobacco, prepared in such a manner as to be suitable for chewing or smoking in a pipe or other tobacco-related devises. (b) "Tobacco reiated devices" means cigarette papers or pipes for smoking. Subd. 1a. Gross misdemeanor. (a) Whoever sells tobacco to a person under the age of 18 years is guilty of a gross misdemeanor. 4. Section 324.07 of the St. Paui Legislative Code provides: No person shall sell or dispense cigarette paper or cigarette wrappers from a vending machine or a motor vehicle. No person shall sell or dispense tobacco from a motor vehicle. No person shali activate the remote control or provide tokens for any tobacco vending machine for sell tobacco to anyone under the age of 18. Any violation of this chapter shal! sub}ect the iicensee to provisions of Seetion 3i8 and Section 324.70 of St. Paul Legislative Code. 5. On October 26, 1996, a staff member of the L�EP drove a person who was be(ow the age of majority to the Dublin Bar. The minor was sent into the Dublin Bar with money and instructed to purchase cigarettes from the establishment. 6. The staff member remained in her vehicfe after the minor had departed and was unable to see any transaction inside the Dublin Bar. 7. In addition to the Dubiin Bar there was a resta��rant next door and a service station aaoss the street where cigarettes were sold. 8. When the minor returned to the staff member's vehicle, she had with her an unopened pack of cigarettes. -3- a.� �� 2�2 9. The minor did not testify at the hearing and the hearsay testimony was not sufficiently reliable. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the foliowing: CONC�USiONS 1. The Administrative Law Judge has jurisdiction in this matter pursuant to Section 331.05(m)(4) of the St. Paul Legislative Code and Minn. Stat, 14.55. 2. The Notice of fiearing was proper and the City has complied with a{f other substantive and procedurai requiremerrts ofi law or rule. 3. The Council of the Gity of St. Paui has the authority to provide for hearings concerning licensed premises and for adverse action against such licenses, under Chapter 310, including Sections 310.05 and 3�O.OE, of the St. Paui Legislative Code. in the case of licenses for intoxicating and non-intoxicating liquor, authority is aiso conveyed by Minn. Stat. §340A.4i5. Adverse action may include revocation, suspension, fines and other penaities o� conditions. 4. The City did not estabiish by a preponderance of the evidence that the licensee violated Minn. Stat. 609.685. 5. The City did not establish by a preponderance of the evidence that the licensee violated Minn. Stat. 324.07. � ��-�� RECOMMENDATION The undersigned recommends no penalties against Dublin Bar. � Dated this �? day of _!� 1997. ME H. RANUM Adminy tsative Law Judge -5- MEMOFiANDUM OF LAW 4 V ~� V / The City of St. Paul failed to prove by a preponderance of the evidence that the licensee sold tobacco to a minor at the time and place alleged. See Civil Jury Instruction Guide JIG ii 70. in In re Kaidahi, 418 N.W.2d 532, 535 (Minn. App. 1988), the Minnesota Court of Appeals stated: The burden of proof in Ka{da I's criminal misdemeanor trial was different from the burden of proof in the administrative proceeding which resuited in the administrative order. Un{ess otherwise provided by substantive law, the facts at issue in administrative hearings and contested cases must be proven by "a preponderance of the evidence." See Minn. Rule 1400.7300, Subpart 5(1985); in re Schuftz, 375 N.W.2d 509, 514 (Minn. App. 1985). In the present case in the absence of someone testifying that they saw the sale, the City does not meet its burden of proof. There was evidence, however siight, that the cigarettes coufd have come from a restaurant next door to Dublin Pub or a service station across the sueet. A staff member acknowledged that she did not see the transaction inside the bar. Although circumstantial evidence is sufficient to meet the burden, the facts in the present case do not. JHR � 1 � OFFICE OF TI� CITY ATTORNEY Tanothy E. Mur� City Attorreey qr � q l /.�0� CI'TY OF SAINT PALTL Nonrs Coleman, Mayor Civi1 Divirion 400 Ciry Hal[ 73 West Xellogg Btvd Sa'mt Paui, 1L£uuiesa�a 55102 Telephone: 612 266-8710 Facsimile: 672 298-5619 December 1S, 1996 The Honorable James Ranum Fifth Street Towers, Ste. 1960 150 South Fifth Street Minneapolis, MN 55402 RE: In the Matter of the Licenses held by Scanlon's Ace Box Bar & rub, Inc. d/b/a Dublin Bar Dear Judge I2anum: The City submits this letter in response to the question posed at today's hearing regarding the appropriate evidentiary standard in an administrative hearing. In a civil hearing concerning adverse action on municipal licenses, the correct standard of proof is that of a"preponderance of the evidence." The City's evidence must lead the trier of fact to believe that it is more likely than not that the allegations are true. Civil Jury Instruction Guides, JIG II 70. If there is the slightest tipping of the scales in the direction of the City by credible evidence, then the burden has been met. In the case of In re Kaldahl, 418 N.W.2d 532,535 (Minn. App. 1988), the Minnesota Court of Appeals stated: The burden of proof in Kaldahl's criminal misdemeanor trial was different from the burden of proof in the administrative proceeding which resulted in the ;ad;;ir�istrati�e) order. *** Unless otherwise provided by substantive law, the facts at issue in administrative hearings and contested cases must be proven by "a preponderance of the evidence." See. Minn.R. 1400.7300, subp.5(1985); In re Schultz, 375 N.W.2d 5�9,514 (Minn.App. 1985) Respectfully sub�tted, i ��5� �� Virgi ia-D. Palmer Assistant City Attorney cc: Thomas Scanlon �. . CITY O� SAINT FAUL Nornr Co7emmx Mayor Idovember 15, 1996 Thomas C. Scanlon and Dublin Bar 2162 University Avenue Saint Paul, Minnesota OFFICE OF THE CITY ATTORNEY Tvnofiry E. Marx Ciry Amm�ey �� a�7 CivADivision 400 Ciry Hall 1 S Weat Xellogg Btvd Sainr Paul M'mnuom 55101 Telephone: 612 266-8710 Facsimik: 6l2 298-5619 NOTICE OF HEARING Jean M. Scanlon West 55114 RE: All licenses held by Scanlon's Ace Box Bar & Pub, Inc. d/b/a Dublin Bar for the premises located at 2162 University Avenue West in St. Paul License ID No._ 15999 Our Fi1e Number: G96-0539 Dear Mr. and Ms. Scanlon: Please take notice that a hearing will be held at the following time, date and place concerning all Iicenses for the premises stated above: Date: Fiednesday Decembes 18, 1996 Time: 9:30 a.m. Place: Room 220, Conference Rm 8 Soard of County Commissioners St. Paul City Hall 15 YS. Rellogg Blvd. Saint Paul, NIId. 55102 The hearing will be presided over by an Administrative Law Judge £rom the State of Minnesota Office of Administrative Hearings: Name: James Ranum Fi£th Street Towers, Suite 1960 150 South 5th Street Minneapolis, i�i. 55402 Telephone: 333-7579 The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse actian against such licenses, under Chapter 310, including sections 316.05 and 310.�6, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non-intoxicating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse '� • Scanlon's Ace Boa Bar & Pab, Inc. � — d/b/a Dublin Bar -- City's Egh. No. 4 j �� - � �-2 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 you hold at the above premises as follows: On October 26, 1996, you or another employee sold cigarettes to a minor under the age of 18 years in the licensed premises. This is an o£fense under Mina. Stat. �609.685 and Saint Paul Legislative Code �324.07. You have the right to be represented by an attorney before and during the hearing or you can represent yourself. You may also have a person of your choice represent you, to the extent not prohibited as unauthorized practice of law. 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 Administrative Law Judge will 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 hear 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 prepare 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 documents in conformity with Minnesota Rules, part 1400.7000. If you think that a stipulation or agreement can be reached as to the facts, that stipulation will be presented to the Administrative Law 3udge for incorporation into his or her recommendation for Council action. If you fail to appear at the hearing, your ability to challenge-the Notice of Hearing - Page 2 � �. . �� a� allegations will be forfeited and the allegations against you 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 public unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. Very truly yours, �/�� . Virginia D. Palmer Office of the City Attorney cc: Nancy Thomas, Office o£ 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 Abby Struck, Community Organizer, St. Anthony Park Community Council, 890 Cromwell Ave., St. Paul, MN 55114 Notice o£ Hearing - Page 3 t �� ''� �� STATE OF MINNESOTA COUNTY OF RAMSEY ss. AFFIDAVIT OF SERVICE BY MAIL JOANNE G. CLEMEN`TS, being first duly sworn, deposes and says that on November 18, 1996, she served the attached NOTICE OF HEARING on the following named persons by placing a true and correct copy thereof in an envelope addressed as follows: Thomas C. Scanlon and Jean M. Scanlon Dublin Bar 2162 University Avenue West Saint Paul, MN. 55114 (which is the last known address of said persons) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 18th day of November, 1996. Ce,� �, �� N �t ry �PUb ' ,�„�,�„ � �f K,qT� R'YN J. tRc�ACGN,UP1 �;.ot::,;� ou5�:c-nhr,:r,esora � n^Pd✓,SEY COUNTY My Comin. Expires Jan 31, 2000 • e F � �� ,� asj OFFICFi OF ADMINISTRATIVE HEARINGS FOR THE COUNCIL OF THE CITY OF SAINT PAUL In re the Licenses of Scanlon's Ace Box Bar & Pub, Inc. d/bfa Dublin Bar 2162 University Avenue West CITY'5 PROPOSED EXHIBITS December 18, 1996 TO: Judge James Ranum, Administrative Law Judge, Office of Administrative hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401-2138 The following constitutes the proposed Hearing Exhibits of the City's Department of License, Inspections and Environmental Protection. Exhibit No. Exh. No. 1 Exh. No. 2 Exh. No. 3 Exh. No. 4 Description Tobacco Compliance Check Form dated October 26, 1996 (1 p.); License information re Scanlon's Ace Box Bar & Pub, Inc. d/b/a Dublin Bar (2 p.); Notice of Violation dated November 6, 1996 with Affidavit of Service (3 pp.). Notice of Hearing dated November 15, 1996, with Affidavit of Service (4 pp.). �� 3� Also attached please find courtesy copies of applicable St. Paul City ordinances and State of Minnesota statutes: St. Paul Legislative Code St. Paul Legislative Code St. Paul Legislative Code St. Paul Legislative Code Minnesota Statute § 310.05 § 310.06 � 310.17 Chapter 324 § 6a9.685 Respectfully submitted this 18th day of December, 1996. �� n� Virgi 'a D. Palmer � � Attorney at Law Office of the City Attorney 4�0 City Ha11 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 (612)266-8710 T08PCCA COMPUANCECHECKFORM S DATE: QJL7 � TIME: .S' . 2� TAX I. D. NUMHER: a NAME OF COMPt1ANCE CHECI�R L 7,.., o�, NAME OF OFFICER K x an G`� '� � NAMEANDADDAESSOFUCENSEDVENDOR �ca�b�( �= Z Lna �.�-�-.:•J � WAS THETOHA�Cd - SELF SEFiVE? ASSIS7ED't MACHPIE? �[ SALE WAS MADE YES N0: BRAND: '� 1�1:...., . �, rs�, � NAM£ OF CIFAK: 1 Y� .� i��,^t ".-'1�( �i 1.c� � SFX: M `.� ` F: DESCRIP110N: u� �t �i.e. ,�. ,�.-r � ��.--✓�....� t'�',l�o'— CHECK ABORIED: YES N0: ADDITIONAL CONMENTS: � � � _ Scanlon's Ace Boa Bar & Pub, Inc. dfbfa Dublin Bar J City's Exh. No. 1 _ > Lic ID ................... STAT ..................... Business Name............ Doing Business As........ Address .................. Zip ...................... E� Date ................. License Name ............. NOTE AREA ................ � � Scanlon's Ace Box Bar & Pub, Inc. — d/b/a Dublin Bar — City's Exh. No. 2 15994 AC �� '� SCANI,ON'S ACE BOX BAR & PUB INC DUBLIN PUB 2162 UNIVERSITY AVE W 55114 03/31/97 LIQ-ON SAI,E-1005EATS/LESS-C SUNDAY OI3 SALE LSQUOR ENTERTAINMENT-CLASS 2 RESTAURANT {B)-MORE THAN 12 SEATS GAMBLING LOCATION (CLASS C) CIGARETTE INSP CHANGE FROM 02 TO O1 ON 3/20/92 INSPECTOR CHANGE FROM BARB TO MIKE - 1/6/92 11633 70 SEATS 5-5-87 022088 REFUND IN PROCESS E'OR DIFFERENCE BETWEEN CL A5S B& CLAS5 D ENTERTAINMENT LICENSE 022588 REFi3ND PROCESSED FOR DIFFERENCE IN ENTERTAI NMENT LICENSE (CLASS D TO CLASS B) P.V. V-160-0291 Press <RETURN> to continue... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° . 121989 CITY ATTORNEY'S OFFICE ANNOUNCED DATE OF 01 . 1090 FOR PUBLIC HEARING BEFORE AN ADMINISTRATIVE L . AW JUDGE PERTAINING TO POSSIBLE ADVERSE ACTION . 122889 CITY ATTORNEY ANNOUNCED A RESCHEDULED DATE . OF 011290 AS A PUBLIC HEARING DATE FOR POSSIBLE AD . VE12SE ACTION AGAINST SCANLON'S ACE BOX BAR & PUB, . INC. . 032990 REPORT OF ADMIN LAW JUDGE HEARD BY COUNCIL . 041790 ALL LICENSES SUSPENDED FOR ONE YEAR FOR TWO . CONS. DAYS COMMENCING ON SUNDAY FOLLOWING PUBLICA . TION OF THIS RESOLUTIION (PUBLI5H DATE 042890) BUT . SAID SUSPENSION STAYED FOR A PERIOD OF ONE YEAR - . APP'D C.F. 90-622 . 071790 PH HELD REPEALING C.F. 90-622 - LICENSEHOLD . ER REPRIMANDED IN LIEII OF SUSPENSION - APP'D C.F. . 90-1199 . 4J23/92 LEfiTER FROM CITY ATTORNEY ANNOUNCED 5/7/92 . AS A PUBLIC HEARING DATE BEFORE AN ADMINISTRATIVE . LAW JUDGE. . 060292 PH ON SUSPENDING ON SALE LIQUOR, SUNDAY, RE . STAURANT, GAMBLING LOCATION & CIGARETTE LICENSE (U . NCONTESTED) COUNCIL RECOMMENDED 3 DAY SUSPENSION/2 Press <RETURN> to continue... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° DAY STAY (SUBMISSION OF RESOLUTION TO BE ADOPTED 6f16f92) 061692 PH SUSPENDING LICENSES AS LISTED ABOVE FOR THREE CONSECUTIVE DAYS WITH TWO OF THE DAYS STAYED �t�t -`� �I Bond Policy Number....... Bond Company ............. Bond Effective Date...... Bond Expiration Date..... Insurance Carrier........ Ins. Policy Number....... Insurance Effective Date. Ins. Expiration Date..... Associated Stock Holder.. FOR A PERIOD OF 18 MONTHS COI3DITIONED UPON I30 FUR THER VIOLATION COMMENCING 6j21/92 FOR THE SALE OF ALCOHOLIC BEVERAGES TO A MINOR APP'D C.F. 92-724 1996 7o DISC FOR ALCOHOL AWARENESS TRAINING APPLIED TO 2ND 1/2 --L,AP-LIC 10-4-96--CHANGE OF DBA FROM ACE BOX BAR TO DiTBLIN PUB PER LICENSEE--LK--LIC T.H.E. INS CO T.B.A. 03/25/96 03j31/97 THOMAS C SCANL0I3 JEAN M SCANLON Dealer No ................ Press <RETURN> to continue... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLO5ED ° PRINT OFF ° Tax Id ................... 3080579 Worker Comp Exp Date..... 11/13/93 Telephone ................ 646-5551 Press 'C' to continue, 'P' to print, or 'R' to redisplay... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° i �• . � OFFI�F TE� CITY ATTORNEY Tunothy �mx, City Attorney CITY OF SAINT PAUL Norm Colemmr, Mayar November 6, 1996 Civil Drvision 400 City Hal! IS West IfelloggBlvd Saint Pau� Mmnesota SSl02 NOTICE OF VIOLATION Thomas C. Scanlon and Jean M. Scanlon Dublin Bar 2162 University Avenue West Saint Paul, Minnesota 55114 � � -'32y ! Telephone: 6I2166-8710 Facsimile: 6l2 298-56/9 RE: All licenses held by Scanlon's Ace Box Bar & Pub, Inc. d/bJa Dublin Bar for the premises located at 2162 University Avenue West in St. Paul License ID No.: 15999 Dear Mr. and Ms. Scanlon: The Director of the Office of License, Inspections and Environmental Protection will recommend that adverse action be taken against all the licenses held at the above-named premises. This recommendation is based on the following: On Octo r 26, 1996, you or another employee sold cigar tes to a minor under the age of 18 years ia the }� licen ed premises. This is an offens nnde� Stat. �� §609.68 d Saint Paul Lesisl ' e Code §324.07. If you do not dispute the above facts, and send me a letter to that effect within 5 days, the case will be set before the City Council. You will have a chance to appear and make a statement before the Council as to the proper penalty, if any, to be imposed. If you do dispute the above facts, a hearing will be set before an Administrative Law Judge. At that hearing both you and the City will be able to appear and present witnesses, evidence and cross- examine the other's witnesses. The Council will ultimately decided the case. If this is your choice, please advise my legal assistant, Peter Pangborn, within 5 days, and we will take the necessary steps to set up that ALJ hearing. He can be reached at 266-8710. Page 1 /�� ■ _ Scanlon's Ace Box Bar & Pub, Inc. d!b/a Dublin Bar —� City's E%h. No. 3 . " '` � � �� -� If you have any questions, you may contact me at 266-8710. Sincerely, ��1 `./ ��uiClia"�- � �. C*.-�vw/`— Virginia D. Palmer Assistant City Attorney cc: Robert Kessler, Director, LIEP Christine Rozek, LIEP Abby Struck, Community Organizer, St_ Anthony Park Community Council, 890 Cromwell Ave., St. Paul, MN 55114 Page 2 17'96(TUE) 10:36 OPFICE�OF ADMIN.HEAR[NG � ; ANSACTION REPORT j� cePtlon aasaction(s) completed OY�� TX ➢ATE/TIME DESTIRATION . r 97 DEC.17 10:34 612 298 5619;, i .,'ii � � ' � �� " � � M � � � � , � �� „ � � � �� `�t � # � t � 4 � � n � r. x k < `3"r: TEL:6123492665 P.001 °« - � a� DURATION PGS. RESULT MODE 0° O1' S1" 004 OK N ECM _� .. � STATE OF MINNESOTA ) ) ss. COUI3TY OF RAMSEY ) � �� a7 AFFIDAVIT OF SERVICE BY MAIL JOANNE G. CLEMENTS, being first duly sworn, deposes and says that on I3ovember 7, 1996, she served the attached NOTICE OF VIOLATION on the following named persons by placing a true and correct copy thereof in an envelope addressed as follows: Thomas C. Scanlon and Jean M. Scanlon Dublin Bar 2162 University Avenue West St. Paul, MN. 55114 (which is the last known address of said persons) and depositing the same, with postage prepaid, in the United States.mails at St. Paul, Minnesota. /—'� � Subscribed and sworn to before me this 7th day of November, 1996. _, � - �� '�e / � • ` • � RITA Pv1. BOSSARD � ; N07ARYPUBIIC-MINNESOTA S _ Ran�sev cours � v �� My Comm. Expires Jan. 31, 2000 � STATE OF MINNESOTA G � c -� ` �J OFFICE OF ADMINISTRATIVE HEARINGS t i ��` 104 Washington Square, Sufte 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 January 15, 1996 Fred Owusu City Clerk 170 City Hall 15 W. Kellogg Blvd. St. Paul, MN 55102 Re: ln the Matter of the License of Scanlon's Ace 8ox Bar & Pub, Inc. Dibia Dublin Bar. OAH Docket No. 57-2111-10862-6 Dear Mr. Owusu: On January 13, 1997, Administrative Law Judge Ranum served the Findings of Facf, Conciusions and Recommendation in the above-entitled matter. Enclosed is the official record, including a copy of the tape recording of the hearing. Our file in this matter is now being closed. Very truly yours, `�� `�il • ,i�� C Nancy M. Thomas Docket Clerk Te�ephone: 612/341-7615 NT Enc. Providing Impartial Hearings for Government and Citizens An Equal Opportu E Administrative Law Section & Adminlstrative Services (612) 341-760D � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 ��"� �� AFFIDAVIT OF SERVICE BY ?SAIL STATE OF 2�IINNESOTA ) ) COIINTY OF HENNEPIN ) James ri_ Ranum, of �ne CiLy of Minnea�olis, County o� Hennepin, in the State of i�=nnesota, beir_g duly sworn, says that on the 13 of ,jc+�.�_ , 199�i, he serred the foilowina: � o on ��^a s G mailing a depositing directed t �ae� � �` ; Cc�i.+C'L.u.Sce�' 4�1r P �,,.`'' �, ¢.Z �� i ic� t� t �-�/ � Sc �y for the �"-y�``- �Z" b Y copy thereof in an envelope, postage prepaid, and by same in the post office at Minneapolis, Minnesota, o said attorney at: `� � t'o 2(.ln,�.;eo.t� U,A,�.+1.c - �.7 �v e C.✓F� Sk- �'c , �a� � � ( � 4 � � 4cx� F 3-y �n« �� i5 � d Z<e(��,� s�, P�. l � M,, li�e.� �Ci � � eiL�. last known address of said ��ey. `� e H. Ranum Subscribe3 and swo to before me this l3fihday of�. , 199�. i2� 'f �� / o� MARIAH.THOMPSON NOTARYPUBLIC-MINNESO7A NOtdY'y Pub1iC HENNEPINWUNTY •�� MyCommissionExpirsJan.31.2000 �'� r;� f. �`� a ,� ` ,� r , � Council File # i �` u �[ .� e . -. k . .`Y :. _ Green Sheet # RESOLUTION CITY OF SAINT PAUL, MINNESOTA Presented By Referred To 1 2 3 4 5 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 41 42 43 Committee: Date q�_3a ��Z�� ID RESOLVED, that the licensee, Scanlon's Ace Box Baz & Pub, Inc. d/b/a the Dublin Baz, located at 2162 W. University Avenue in Saint Paul is hereby ordered to pay a fine in the amount of $200 for the violarion of the sale of tobacco to a minor, occurring on the licensed premises on October 26, 1996. Said fine shall be paid to the Office of License, Inspections and Environmental Protection within thiriy (30) days of the adoption of this resolurion by the Council and signature by the Mayor. FURTHER RESOLVED, that the findings of fact and conclusions of law contained in the ALJ Report in this case, dated January 13, 1997, are adopted as the written findings and conclusions of the Council in this matter, except as modified below. The reasoning of the Memorandum of the AL7 attached to the findings and conclusions is not adopted. The recommendation of the ALJ is also not adopted. FURTHER RESOLVED, that the following amendments to the ALJ Report aze hereby adopted: 1. Finding of Fact No. 9 is hereby amended to read as follows: 9. The minor did not testify at the heazing� °~a ��p � ...:......... . ..... ....�,.:,...a. _,.,:,,w,,. �a?iie��1S::�rizSal..AYS�i 2. A new Finding of Fact No. 10 is hereby adopted to read as follows: 3. A new Finding of Fact No 11. is hereby adopted to read as follows: � �l - � a�1 4. A new Finding of Fact No. 12 is hereby adopted to read as follows: 5. A new Finding of Fact No. 13 is hereby adopted to read as follows: 6. A new Finding of Fact No. 14 is hereby adopted to read as follows: 7. A new Finding of Fact No. 15 is hereby adopted to read as follows: 8. A new Finding of Fact No. 16 is hereby adopted to read as follows: 9. Conclusion of Law No. 4 is deleted in its entirety, and a new Conclusion of Law No. 4 is hereby adopted to read as follows: 10. Conclusion of Law No. 5 is deleted in its enrirety, and a new conclusion of Law No. 5 is hereby adopted to read as follows: i 2 3 4 5 6 7 8 9 10 11 12 �� a� This Resolution is based on the recard and proceedings before the ALJ on December 18, 1996, the documents and exhibits introduced therein, the fmdings of fact and conclusions of the ALJ as referenced above, the written exceptions filed by counsel far the Office of License, Inspection and Environmental Protection, the arguments and statements of the parties on February 26, 1997, and the deliberations of the Council in open session on that date. A copy of the Resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge, and to Mr. Thomas Scanlon. Requested by Department of: By: Form Approved by City Attorney / \ 1 BY: �°��Jc� /�.c.l�.2 f� � � i By Approved by Mayor: Date �E� BY= .`—�.� . by Mayor for Submission to sy: Adopted by Council: Date ` � �'"'1 Adoption Certified by Council Secretary � �Z -� � flf��.�, �E�A7MENTqFFlCElC0�NC1� DATE INITIATED Ciry Council Offices 3-25-1997 GREEN SHEE COMACf PERSON & PHONE M�TIAVDATE INITIAUDATE �DEPARTMENT�IRECTOR OCITYCOUNCIL Roberta Megazd, 266-8640 �ewN � CITV ATfORNEV � dTV CLERK NUMBENFOq MUST BE N CAUNCIL AGENDA BV (DATE) pp� � BUW Ef DIqECTOR � FIN. & MGT SFAVIqES DIR. A 1'1� 2 199,� OqOEp � MAYOR (OR ASSISTANT) � TOTAL # OP SIC�NATURE PAGES (CLIP ALL LOCATIONS FOR SIGNATURE) ACTION REQUESTED: Finalizing Ciry Councfl acfion taken on February 26, 1997, concerning adverse action againstlicenses held by Scanlon's Ace Box Baz & Pub, Inc., DBA Dublin Baz, 2162 W. Universiry Avenue. PECOMMENDATIONS: Approve EQ) or Aaject iPo PERSONAL SEflVICE CONTRACTS MUST ANSWER TXE FOLLOWING QUESTIONS: _ PLANNING CAMMISSION _ CIVIL SERVICE CpMMISSION �� Has this petsonflirm eve� worked untler a cOMract for this department? _ CIB COMMRTEE YES NO _� � 2. Has this person/firm eve� been a city employee? — VES NO _ DISTRIC7 CpURT __ 3. Does thi5 BrsonRifm p possess a skill not normally possessed by any curtent ciry emplqree? SUPPORTS WHICH COUNCIL OBJE(;'fIVE? YES NO Explain all yes anawers on seperate sheet and atteoh M gresn sheet INITIATING PRQBLEM, ISSUE, OPPp�{UNITY (WM, What, When, Whora. Why): A�YANTAGESIFAPPROYEb � DISADVANTAGES 1F AFPARYE@, � � �"�a°l&��r� 4^ ��.. ,.'m.� P,e�� d&§3A `�f b Cd ta £+��f / DISADVANTAGESIFNOSAPPflOVED. �� T07AL AMOUN70F TRANSAC710N $ COST/pEVENUE BUDGETED (CIRCLE ONE) YES NO FUNDI{AG SOURCE ACTNITY NUMBER FINANCIAL INFORAhAT10N. (EXPLAIN) OFFICE OF TEIE CITY ATTORNEY � a n Trmothy E. Mar� Ciry Attorney C7 +� _ � i, CITY OF SAINT PAUL Norn� Coleman, Mayor C"rv'rt Div"uion 400 Ciry Ha(1 IS Wut Kellogg Blvd Sa'mt Paul, M'rmreso7a 55702 Telephone: 611166-8710 Facsimi7e: 672 298-5679 January 31, 1997 NOTICB OF COUI3CIL HEARING Mr. Thomas C. Scanlon and Ms. Jean M. Scanlon Dublin Bar 2162 University Avenue West Saint Paul, Minnesota 55114 Re: In the Matter of the cigarette license of Scanlon's Ace Box Bar & Pub, Inc. d/b/a Dublin Bar for the premises located at 2162 University Avenue West in St. Paul ' License ID No.:15999 Our File Number: G96-0539 Dear Mr. and Ms. Scanlon: Please take notice that a hearing on the report of the Administrative Law 3udge concerning the above-mentioned license has been scheduled £or 4:30 p.m., Wednesday, Bebruary 26, 1997, in the City Council Chambers, Third Floor, Saint Pau1 City Ha11 and Ramsey County Courthouse. You have the opportunity to file exceptions 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 will 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 judgement and discretion. Sincerely, �� j�� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Robert Kessler, Director, LIEP Christine Rozek, LIEP Abby Struck, Community Organizer, Council, 890 Cromwell Ave., ;�w . ,. �:,`u'� �� -� Secretary, 310 City Hall St. Anthony Park Community St. Paul, MN 55114 OFFICE OF Tf� CITY ATTORNEY�� ,� � n Timothy E. Maix, Ciry Anorney � CITY OF SAINT PALTI, Norne Coleman, Mayor CivllDivufon 400 City Hall is wes: �uo� sha Sami Puul, M'mnesom SSIO2 Telephone: 612 266-8710 Facsimite: 6I2 298-5619 February 5, 1997 Ms. Nancy Anderson Secretary to the City Council 310 City Hall 15 W. Kellogg Boulevard Saint Paul, MN 55102 RE: In re the Licenses of Scanlon's Ace Box Bar & Pub, dfb/a the Dublin Bar, 2162 W. University Avenue Council Hearing - Rebruary 26, 1997 Dear Ms. Anderson: Enclosed for filing, and for inclusion in the agenda materials furnished to the Council in connection with the hearing on the above matter are the Written Exceptions of the Office of License, Inspections and Environmental protection to the report of the Administrative Law Judge. Sincerely, `/ � : � �� ✓G � �� Virgin�'a D. Palmer Assistant City Attorney enc. cc: Robert Kessler, Director of LIEP Mr. Thomas Scanlon, Licensee �� STATE OF MINNESQTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CI`PY OF SAINT PAUL Case No. 57-2111-10862-6 In re the Licenses of Scanlon`s Ace Box Bar & Pub, Inc. dJb/a the Dublin Bar, 2162 W.University Ave. I. Recommendations of the ALJ WRITTEN EXCEPTIONS The ALJ has recommended no penalty against the licensed establishment, based upon his finding that the Cit�rfailed to prove by a preponderance of the evidence that the licensee sold tobacco to a minor. II. LIEP Position The Office of License, Inspections and Environmental Protection (LIEP) believes that the evidence in the record supports additional Findings of Fact and Amended Conclusions of Law, that there was sufficient proof that the sale of tobacco was made to a minor by an employee of the Dublin Bar and that a penalty should be imposed on the licensee for the sale of tobacco to a minor. The City Council is requested to adopt the new and amended Findings of Fact and Conclusions attached hereto, and to impose a penalty of $200 on the licensee. III. Issue The Administrative Law Judge found that the City had not proved by a preponderance of the evidence that the licensee sold tobacco to a minor at the time and place alleged. The judge correctly noted that the standard of proof is not the same as is needed for a criminal trial, but still applied the wrong balancing test to the evidence. A'�preponderance of the evidence" means evidence which would lead the trier of fact to believe that it is more likely than not that the aase is true. If there is the slightest tipping of the scales in the direction of the City by credible evidence, then the City has proved its case. °Q � ''� � 2 The ALJ's Findings of Fact leave out much of the testimony that was put in by the City license inspector, Kristina Schweinler. Ms. Schweinler testified that on October 26, 1996, she was performing cigarette compliance checks at a number of licensed establishments with the assistance of two minors. After picking the minors up at their homes, she had fully e�;plained the purpose o£ the cigarette compliance checks to them, and had instructed them that when they entered an establishment which sold cigarettes by machine, that they were to ask for change, specifically mentioning that it was for the cigarette machine. The license inspector also stated that the decoys entered the establishments with no purse or wallet, no identi£ication, and onl� the five dollar bill she handed them. The license inspector testified that she sent the decoy into the Dublin Bar and was waiting in the car in the parking lot, which is behind the establishment. The decoy went in with no cigarettes, no money other than the $5 bill she was given, and instructions to attempt to purahase cigarettes. She was fully aware that she was to enter the Dublin Bar, not any other establishment. She came out several minutes later with a package of cigarettes and the change, and the license inspector went inside to inform them that they had sold cigarettes to a minor. The Memorandum of Law attached to the ALJ's Findings indicates that unless someone saw the sale, the City does not meet its burden of proof. This is simply a misstatement of law, since even under the criminal standard of "proof beyond a reasonable doubt", circumstantial evidence can be sufficient to prove a case_ There are countless situations where a fact can be established without an eyewitness. If the credible evidence establishes that it is more likely than not that the sale was made by an employee of the Dublin Bar, then the City has met its burden. The evidence put in by the City was that the decoy, a minor, entered the bar without cigarettes, but with a five dollar bi11 and instructions to ask for change to use the cigarette machine. She was informed prior to the compliance check about the purpose of the checks, she was aware that the establishment that she was to go into was the Dublin Bar, and she had performed other compliance checks that evening. After several minutes inside, she returned to the car with cigarettes and change. The inspector went inside and informed the licensee that cigarettes had been sold to a minor and they made no denial at the time. She talked to the person behind the bar, who remembered giving change, and the licensee was present. The ALJ also stated in his memorandum that "[t]here was evidence, however slight, that the cigarettes could have come from a restaurant next door to Dublin Pul� or a service station across the street." The evidence of the License Inspector as well as one of the licensee`s witnesses was that the restaurant next door to Dublin Pub was closed at the time the compliance check was done. Therefore, the cigarettes could not possibly have come from the restaurant next door. The service station to which the ALJ refers is across University Avenue (four traffic lanes and a median), and ��-� �-� the License Inspector testi£ied that it was the subject of a compliance check immediately before the Dublin Bar. It passed, refusing the sale because the decoy had no identification. The scenario raised by the licensee, that the cigarettes were purchased elsewhere, was not a credible one. As pointed out in the City's argument, it would require the factfinder to believe that for unspecified reasons the decoy, although instructed to enter the Dublin Bar to attempt to buy cigarettes, chose to go across University Avenue and purchase cigarettes from an entirely different establishment, yet come back and lie to the inspector. Reason and common sense indicate that speculation that the cigaretttes could have been purchased elsewhere is not credible testimony, and that the evidence is sufficient to show that the cigarettes were purchased at the Dublin Bar. Based on the testimony presented by the license inspector, there is support in the record to find that a sale of tobacco was made to a minor by an employee of the Dublin Bar on October 26, 1996, in violation of both state law and city ordinance. Dated this 4th day of February, 1997. �� _ � �.� Virgi D. Palmer Assistant City Attorney 400 City Hall 15 W. Kellogg Boulevard Saint Paul, MN 55102 (612) 266-8710 Attorney for LIEP �� a � � PROPOSED AMENDED FINDINGS OF FACT AND CONCLUSIONS FINDINGS OF FACT: 9. The minor did not testify at the CONCLUSIONS OF LAW: �� a.� . „ a�� -3 �-`l File No. 57-2111-10862-6 Si"ATE OF MINIVESOTA OFFiCE OF ADMINISTRATIVE HEARINGS FOR THE ST. PAUL CiTY COUNCIL In re the Licenses of Scanlon's Ace Box Bar & Pub, inc. d/b/a Dubfin Bar FINDfNGS OF FACT, 2162 Universiiy Avenue West CONCLUSIONS OF LAW St. Paui, Minnesota AND RECOMMENDATION The above entitied matter came on for hearing before Administrative �aw Judge ,lames H. Ranum on December 18, 1996 in Room 220 of Conference Room B at the Soard of County Commissioners, 15 West Kellogg 8oulevard, St. Paul, Minnesota. Virginia D. Palmer, Assistant St. Paul City Attorney, 400 City Hal1, i5 West Keilogg Boulevard, St. Paul, Minnesota, appeared on behalf of the Office of License, Inspections and Environmental Protection. The licenseholder Thomas C. Scanion appeared at the hearing representing the Dublin Bar. Scanlon's Ace Box Bar & Pub, inc. hold the license whiie doing business as Dublin Bar on 2162 University Avenue West, St. Pauf, Minnesota 55114. -1- �,� _� �2 m The record closed on December 19, 1996, the date of the fast submission by the parties. These Findings and Conclusions may be appealed to the St. Paui City Council by any aggrieved person by filing a notice with the City Clerk. The appeal wiii then be scheduled for a hearing at the next City Councif ineeting. These appeal provisions are contained in Section 331.05(m)(5), St. Paul Legislative Code. STATEMEiVT OF ISSUE The issue to be determined in this case is whether grounds ex+st ta support the assessment of penaities against Dublin Bar. FiNDiNGS Of FACT 1. Scanlon's Ace Box Bar & Pub, Inc. does business as Dubiin Bar. Dublin Bar is a bar serving aicoholic beverages and dispensing tobacco at 2162 University Avenue West, St. Paul, Minnesota. 2. The City has brought this adverse action against the licenses held by Dublin Bar alleging a violation of St. Paul Legislative Code. 3. Minn. Stat. 609.685, Sale of Tobacco to Chiidren, provides in pertinent part: Subd. 1. Definitions. For the purpose of this section, the foflowing terms shall have the meanings respectively ascribed to them in this section. (a) 'Tobacco" means cigarettes; cigars; cheroots; stogies; perique; granulated, piug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flower, cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, ciippings, -2- �� -� cuttings and sweepings of tobacco; and other kinds and forms of tobacco, prepared in such a manner as to be suitable for chewing or smoking in a pipe or other tobacco-related devises. (b) "Tobacco reiated devices" means cigarette papers or pipes for smoking. Subd. 1a. Gross misdemeanor. (a) Whoever sells tobacco to a person under the age of 18 years is guilty of a gross misdemeanor. 4. Section 324.07 of the St. Paui Legislative Code provides: No person shall sell or dispense cigarette paper or cigarette wrappers from a vending machine or a motor vehicle. No person shall sell or dispense tobacco from a motor vehicle. No person shali activate the remote control or provide tokens for any tobacco vending machine for sell tobacco to anyone under the age of 18. Any violation of this chapter shal! sub}ect the iicensee to provisions of Seetion 3i8 and Section 324.70 of St. Paul Legislative Code. 5. On October 26, 1996, a staff member of the L�EP drove a person who was be(ow the age of majority to the Dublin Bar. The minor was sent into the Dublin Bar with money and instructed to purchase cigarettes from the establishment. 6. The staff member remained in her vehicfe after the minor had departed and was unable to see any transaction inside the Dublin Bar. 7. In addition to the Dubiin Bar there was a resta��rant next door and a service station aaoss the street where cigarettes were sold. 8. When the minor returned to the staff member's vehicle, she had with her an unopened pack of cigarettes. -3- a.� �� 2�2 9. The minor did not testify at the hearing and the hearsay testimony was not sufficiently reliable. Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the foliowing: CONC�USiONS 1. The Administrative Law Judge has jurisdiction in this matter pursuant to Section 331.05(m)(4) of the St. Paul Legislative Code and Minn. Stat, 14.55. 2. The Notice of fiearing was proper and the City has complied with a{f other substantive and procedurai requiremerrts ofi law or rule. 3. The Council of the Gity of St. Paui has the authority to provide for hearings concerning licensed premises and for adverse action against such licenses, under Chapter 310, including Sections 310.05 and 3�O.OE, of the St. Paui Legislative Code. in the case of licenses for intoxicating and non-intoxicating liquor, authority is aiso conveyed by Minn. Stat. §340A.4i5. Adverse action may include revocation, suspension, fines and other penaities o� conditions. 4. The City did not estabiish by a preponderance of the evidence that the licensee violated Minn. Stat. 609.685. 5. The City did not establish by a preponderance of the evidence that the licensee violated Minn. Stat. 324.07. � ��-�� RECOMMENDATION The undersigned recommends no penalties against Dublin Bar. � Dated this �? day of _!� 1997. ME H. RANUM Adminy tsative Law Judge -5- MEMOFiANDUM OF LAW 4 V ~� V / The City of St. Paul failed to prove by a preponderance of the evidence that the licensee sold tobacco to a minor at the time and place alleged. See Civil Jury Instruction Guide JIG ii 70. in In re Kaidahi, 418 N.W.2d 532, 535 (Minn. App. 1988), the Minnesota Court of Appeals stated: The burden of proof in Ka{da I's criminal misdemeanor trial was different from the burden of proof in the administrative proceeding which resuited in the administrative order. Un{ess otherwise provided by substantive law, the facts at issue in administrative hearings and contested cases must be proven by "a preponderance of the evidence." See Minn. Rule 1400.7300, Subpart 5(1985); in re Schuftz, 375 N.W.2d 509, 514 (Minn. App. 1985). In the present case in the absence of someone testifying that they saw the sale, the City does not meet its burden of proof. There was evidence, however siight, that the cigarettes coufd have come from a restaurant next door to Dublin Pub or a service station across the sueet. A staff member acknowledged that she did not see the transaction inside the bar. Although circumstantial evidence is sufficient to meet the burden, the facts in the present case do not. JHR � 1 � OFFICE OF TI� CITY ATTORNEY Tanothy E. Mur� City Attorreey qr � q l /.�0� CI'TY OF SAINT PALTL Nonrs Coleman, Mayor Civi1 Divirion 400 Ciry Hal[ 73 West Xellogg Btvd Sa'mt Paui, 1L£uuiesa�a 55102 Telephone: 612 266-8710 Facsimile: 672 298-5619 December 1S, 1996 The Honorable James Ranum Fifth Street Towers, Ste. 1960 150 South Fifth Street Minneapolis, MN 55402 RE: In the Matter of the Licenses held by Scanlon's Ace Box Bar & rub, Inc. d/b/a Dublin Bar Dear Judge I2anum: The City submits this letter in response to the question posed at today's hearing regarding the appropriate evidentiary standard in an administrative hearing. In a civil hearing concerning adverse action on municipal licenses, the correct standard of proof is that of a"preponderance of the evidence." The City's evidence must lead the trier of fact to believe that it is more likely than not that the allegations are true. Civil Jury Instruction Guides, JIG II 70. If there is the slightest tipping of the scales in the direction of the City by credible evidence, then the burden has been met. In the case of In re Kaldahl, 418 N.W.2d 532,535 (Minn. App. 1988), the Minnesota Court of Appeals stated: The burden of proof in Kaldahl's criminal misdemeanor trial was different from the burden of proof in the administrative proceeding which resulted in the ;ad;;ir�istrati�e) order. *** Unless otherwise provided by substantive law, the facts at issue in administrative hearings and contested cases must be proven by "a preponderance of the evidence." See. Minn.R. 1400.7300, subp.5(1985); In re Schultz, 375 N.W.2d 5�9,514 (Minn.App. 1985) Respectfully sub�tted, i ��5� �� Virgi ia-D. Palmer Assistant City Attorney cc: Thomas Scanlon �. . CITY O� SAINT FAUL Nornr Co7emmx Mayor Idovember 15, 1996 Thomas C. Scanlon and Dublin Bar 2162 University Avenue Saint Paul, Minnesota OFFICE OF THE CITY ATTORNEY Tvnofiry E. Marx Ciry Amm�ey �� a�7 CivADivision 400 Ciry Hall 1 S Weat Xellogg Btvd Sainr Paul M'mnuom 55101 Telephone: 612 266-8710 Facsimik: 6l2 298-5619 NOTICE OF HEARING Jean M. Scanlon West 55114 RE: All licenses held by Scanlon's Ace Box Bar & Pub, Inc. d/b/a Dublin Bar for the premises located at 2162 University Avenue West in St. Paul License ID No._ 15999 Our Fi1e Number: G96-0539 Dear Mr. and Ms. Scanlon: Please take notice that a hearing will be held at the following time, date and place concerning all Iicenses for the premises stated above: Date: Fiednesday Decembes 18, 1996 Time: 9:30 a.m. Place: Room 220, Conference Rm 8 Soard of County Commissioners St. Paul City Hall 15 YS. Rellogg Blvd. Saint Paul, NIId. 55102 The hearing will be presided over by an Administrative Law Judge £rom the State of Minnesota Office of Administrative Hearings: Name: James Ranum Fi£th Street Towers, Suite 1960 150 South 5th Street Minneapolis, i�i. 55402 Telephone: 333-7579 The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse actian against such licenses, under Chapter 310, including sections 316.05 and 310.�6, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non-intoxicating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse '� • Scanlon's Ace Boa Bar & Pab, Inc. � — d/b/a Dublin Bar -- City's Egh. No. 4 j �� - � �-2 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 you hold at the above premises as follows: On October 26, 1996, you or another employee sold cigarettes to a minor under the age of 18 years in the licensed premises. This is an o£fense under Mina. Stat. �609.685 and Saint Paul Legislative Code �324.07. You have the right to be represented by an attorney before and during the hearing or you can represent yourself. You may also have a person of your choice represent you, to the extent not prohibited as unauthorized practice of law. 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 Administrative Law Judge will 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 hear 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 prepare 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 documents in conformity with Minnesota Rules, part 1400.7000. If you think that a stipulation or agreement can be reached as to the facts, that stipulation will be presented to the Administrative Law 3udge for incorporation into his or her recommendation for Council action. If you fail to appear at the hearing, your ability to challenge-the Notice of Hearing - Page 2 � �. . �� a� allegations will be forfeited and the allegations against you 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 public unless objection is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. Very truly yours, �/�� . Virginia D. Palmer Office of the City Attorney cc: Nancy Thomas, Office o£ 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 Abby Struck, Community Organizer, St. Anthony Park Community Council, 890 Cromwell Ave., St. Paul, MN 55114 Notice o£ Hearing - Page 3 t �� ''� �� STATE OF MINNESOTA COUNTY OF RAMSEY ss. AFFIDAVIT OF SERVICE BY MAIL JOANNE G. CLEMEN`TS, being first duly sworn, deposes and says that on November 18, 1996, she served the attached NOTICE OF HEARING on the following named persons by placing a true and correct copy thereof in an envelope addressed as follows: Thomas C. Scanlon and Jean M. Scanlon Dublin Bar 2162 University Avenue West Saint Paul, MN. 55114 (which is the last known address of said persons) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 18th day of November, 1996. Ce,� �, �� N �t ry �PUb ' ,�„�,�„ � �f K,qT� R'YN J. tRc�ACGN,UP1 �;.ot::,;� ou5�:c-nhr,:r,esora � n^Pd✓,SEY COUNTY My Comin. Expires Jan 31, 2000 • e F � �� ,� asj OFFICFi OF ADMINISTRATIVE HEARINGS FOR THE COUNCIL OF THE CITY OF SAINT PAUL In re the Licenses of Scanlon's Ace Box Bar & Pub, Inc. d/bfa Dublin Bar 2162 University Avenue West CITY'5 PROPOSED EXHIBITS December 18, 1996 TO: Judge James Ranum, Administrative Law Judge, Office of Administrative hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401-2138 The following constitutes the proposed Hearing Exhibits of the City's Department of License, Inspections and Environmental Protection. Exhibit No. Exh. No. 1 Exh. No. 2 Exh. No. 3 Exh. No. 4 Description Tobacco Compliance Check Form dated October 26, 1996 (1 p.); License information re Scanlon's Ace Box Bar & Pub, Inc. d/b/a Dublin Bar (2 p.); Notice of Violation dated November 6, 1996 with Affidavit of Service (3 pp.). Notice of Hearing dated November 15, 1996, with Affidavit of Service (4 pp.). �� 3� Also attached please find courtesy copies of applicable St. Paul City ordinances and State of Minnesota statutes: St. Paul Legislative Code St. Paul Legislative Code St. Paul Legislative Code St. Paul Legislative Code Minnesota Statute § 310.05 § 310.06 � 310.17 Chapter 324 § 6a9.685 Respectfully submitted this 18th day of December, 1996. �� n� Virgi 'a D. Palmer � � Attorney at Law Office of the City Attorney 4�0 City Ha11 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 (612)266-8710 T08PCCA COMPUANCECHECKFORM S DATE: QJL7 � TIME: .S' . 2� TAX I. D. NUMHER: a NAME OF COMPt1ANCE CHECI�R L 7,.., o�, NAME OF OFFICER K x an G`� '� � NAMEANDADDAESSOFUCENSEDVENDOR �ca�b�( �= Z Lna �.�-�-.:•J � WAS THETOHA�Cd - SELF SEFiVE? ASSIS7ED't MACHPIE? �[ SALE WAS MADE YES N0: BRAND: '� 1�1:...., . �, rs�, � NAM£ OF CIFAK: 1 Y� .� i��,^t ".-'1�( �i 1.c� � SFX: M `.� ` F: DESCRIP110N: u� �t �i.e. ,�. ,�.-r � ��.--✓�....� t'�',l�o'— CHECK ABORIED: YES N0: ADDITIONAL CONMENTS: � � � _ Scanlon's Ace Boa Bar & Pub, Inc. dfbfa Dublin Bar J City's Exh. No. 1 _ > Lic ID ................... STAT ..................... Business Name............ Doing Business As........ Address .................. Zip ...................... E� Date ................. License Name ............. NOTE AREA ................ � � Scanlon's Ace Box Bar & Pub, Inc. — d/b/a Dublin Bar — City's Exh. No. 2 15994 AC �� '� SCANI,ON'S ACE BOX BAR & PUB INC DUBLIN PUB 2162 UNIVERSITY AVE W 55114 03/31/97 LIQ-ON SAI,E-1005EATS/LESS-C SUNDAY OI3 SALE LSQUOR ENTERTAINMENT-CLASS 2 RESTAURANT {B)-MORE THAN 12 SEATS GAMBLING LOCATION (CLASS C) CIGARETTE INSP CHANGE FROM 02 TO O1 ON 3/20/92 INSPECTOR CHANGE FROM BARB TO MIKE - 1/6/92 11633 70 SEATS 5-5-87 022088 REFUND IN PROCESS E'OR DIFFERENCE BETWEEN CL A5S B& CLAS5 D ENTERTAINMENT LICENSE 022588 REFi3ND PROCESSED FOR DIFFERENCE IN ENTERTAI NMENT LICENSE (CLASS D TO CLASS B) P.V. V-160-0291 Press <RETURN> to continue... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° . 121989 CITY ATTORNEY'S OFFICE ANNOUNCED DATE OF 01 . 1090 FOR PUBLIC HEARING BEFORE AN ADMINISTRATIVE L . AW JUDGE PERTAINING TO POSSIBLE ADVERSE ACTION . 122889 CITY ATTORNEY ANNOUNCED A RESCHEDULED DATE . OF 011290 AS A PUBLIC HEARING DATE FOR POSSIBLE AD . VE12SE ACTION AGAINST SCANLON'S ACE BOX BAR & PUB, . INC. . 032990 REPORT OF ADMIN LAW JUDGE HEARD BY COUNCIL . 041790 ALL LICENSES SUSPENDED FOR ONE YEAR FOR TWO . CONS. DAYS COMMENCING ON SUNDAY FOLLOWING PUBLICA . TION OF THIS RESOLUTIION (PUBLI5H DATE 042890) BUT . SAID SUSPENSION STAYED FOR A PERIOD OF ONE YEAR - . APP'D C.F. 90-622 . 071790 PH HELD REPEALING C.F. 90-622 - LICENSEHOLD . ER REPRIMANDED IN LIEII OF SUSPENSION - APP'D C.F. . 90-1199 . 4J23/92 LEfiTER FROM CITY ATTORNEY ANNOUNCED 5/7/92 . AS A PUBLIC HEARING DATE BEFORE AN ADMINISTRATIVE . LAW JUDGE. . 060292 PH ON SUSPENDING ON SALE LIQUOR, SUNDAY, RE . STAURANT, GAMBLING LOCATION & CIGARETTE LICENSE (U . NCONTESTED) COUNCIL RECOMMENDED 3 DAY SUSPENSION/2 Press <RETURN> to continue... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° DAY STAY (SUBMISSION OF RESOLUTION TO BE ADOPTED 6f16f92) 061692 PH SUSPENDING LICENSES AS LISTED ABOVE FOR THREE CONSECUTIVE DAYS WITH TWO OF THE DAYS STAYED �t�t -`� �I Bond Policy Number....... Bond Company ............. Bond Effective Date...... Bond Expiration Date..... Insurance Carrier........ Ins. Policy Number....... Insurance Effective Date. Ins. Expiration Date..... Associated Stock Holder.. FOR A PERIOD OF 18 MONTHS COI3DITIONED UPON I30 FUR THER VIOLATION COMMENCING 6j21/92 FOR THE SALE OF ALCOHOLIC BEVERAGES TO A MINOR APP'D C.F. 92-724 1996 7o DISC FOR ALCOHOL AWARENESS TRAINING APPLIED TO 2ND 1/2 --L,AP-LIC 10-4-96--CHANGE OF DBA FROM ACE BOX BAR TO DiTBLIN PUB PER LICENSEE--LK--LIC T.H.E. INS CO T.B.A. 03/25/96 03j31/97 THOMAS C SCANL0I3 JEAN M SCANLON Dealer No ................ Press <RETURN> to continue... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLO5ED ° PRINT OFF ° Tax Id ................... 3080579 Worker Comp Exp Date..... 11/13/93 Telephone ................ 646-5551 Press 'C' to continue, 'P' to print, or 'R' to redisplay... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° i �• . � OFFI�F TE� CITY ATTORNEY Tunothy �mx, City Attorney CITY OF SAINT PAUL Norm Colemmr, Mayar November 6, 1996 Civil Drvision 400 City Hal! IS West IfelloggBlvd Saint Pau� Mmnesota SSl02 NOTICE OF VIOLATION Thomas C. Scanlon and Jean M. Scanlon Dublin Bar 2162 University Avenue West Saint Paul, Minnesota 55114 � � -'32y ! Telephone: 6I2166-8710 Facsimile: 6l2 298-56/9 RE: All licenses held by Scanlon's Ace Box Bar & Pub, Inc. d/bJa Dublin Bar for the premises located at 2162 University Avenue West in St. Paul License ID No.: 15999 Dear Mr. and Ms. Scanlon: The Director of the Office of License, Inspections and Environmental Protection will recommend that adverse action be taken against all the licenses held at the above-named premises. This recommendation is based on the following: On Octo r 26, 1996, you or another employee sold cigar tes to a minor under the age of 18 years ia the }� licen ed premises. This is an offens nnde� Stat. �� §609.68 d Saint Paul Lesisl ' e Code §324.07. If you do not dispute the above facts, and send me a letter to that effect within 5 days, the case will be set before the City Council. You will have a chance to appear and make a statement before the Council as to the proper penalty, if any, to be imposed. If you do dispute the above facts, a hearing will be set before an Administrative Law Judge. At that hearing both you and the City will be able to appear and present witnesses, evidence and cross- examine the other's witnesses. The Council will ultimately decided the case. If this is your choice, please advise my legal assistant, Peter Pangborn, within 5 days, and we will take the necessary steps to set up that ALJ hearing. He can be reached at 266-8710. Page 1 /�� ■ _ Scanlon's Ace Box Bar & Pub, Inc. d!b/a Dublin Bar —� City's E%h. No. 3 . " '` � � �� -� If you have any questions, you may contact me at 266-8710. Sincerely, ��1 `./ ��uiClia"�- � �. C*.-�vw/`— Virginia D. Palmer Assistant City Attorney cc: Robert Kessler, Director, LIEP Christine Rozek, LIEP Abby Struck, Community Organizer, St_ Anthony Park Community Council, 890 Cromwell Ave., St. Paul, MN 55114 Page 2 17'96(TUE) 10:36 OPFICE�OF ADMIN.HEAR[NG � ; ANSACTION REPORT j� cePtlon aasaction(s) completed OY�� TX ➢ATE/TIME DESTIRATION . r 97 DEC.17 10:34 612 298 5619;, i .,'ii � � ' � �� " � � M � � � � , � �� „ � � � �� `�t � # � t � 4 � � n � r. x k < `3"r: TEL:6123492665 P.001 °« - � a� DURATION PGS. RESULT MODE 0° O1' S1" 004 OK N ECM _� .. � STATE OF MINNESOTA ) ) ss. COUI3TY OF RAMSEY ) � �� a7 AFFIDAVIT OF SERVICE BY MAIL JOANNE G. CLEMENTS, being first duly sworn, deposes and says that on I3ovember 7, 1996, she served the attached NOTICE OF VIOLATION on the following named persons by placing a true and correct copy thereof in an envelope addressed as follows: Thomas C. Scanlon and Jean M. Scanlon Dublin Bar 2162 University Avenue West St. Paul, MN. 55114 (which is the last known address of said persons) and depositing the same, with postage prepaid, in the United States.mails at St. Paul, Minnesota. /—'� � Subscribed and sworn to before me this 7th day of November, 1996. _, � - �� '�e / � • ` • � RITA Pv1. BOSSARD � ; N07ARYPUBIIC-MINNESOTA S _ Ran�sev cours � v �� My Comm. Expires Jan. 31, 2000 �