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97-417COURT OF APPEALS NLJMBER CX-97-953 �- 9 � a Presented By Referred To Q Council File # � �-�r� Green Sheet # -\�� RESOLUTION CITY OF SAINT PAUL, MINNESOTA �p� Committee: Date WHEREAS, the City of Saint Paul, Office of License, Inspecfions and Environmental Protec6on brought an adverse action against the licenses held by E& K Corporation d/b/a Checker's Nite Club, far the premises located at 1066 East 7th Street, alleging a violation of their Entertaimnent Class B license; and WI�REAS, on or about December 10, 1996 the licensee was duly notified that a heazing had been scheduled befare an Administrative Law Judge on January 6, 1997; and WI�REAS, the licensee did not appeaz at the January 6, 1997 hearing and the Administrative Law Judge declared the licensee to be in default and took the matter under advisement on the exhibits presented by the City; and WHEREAS, the Findings of Fact, Conclusions and Recommendation of ttae Administrative Law Judge dated February 13, 1997 were served on the Council of the City of Saint Paul, with copies sent to the licensee; and WFIEREAS, a public hearing was held on April 2, 1997 to consider the Recommendation, at which time the licensee did appeaz and presented testimony in opposition to the Findings and Conclusions of the Administrative Law Judge; NOW, THEREFORE BE I'T RESOLVED, that the City Council of the City of Saint Paul, after due deliberafion based upon a11 the files, records and proceedings herein, including the docuxnents and e�ibits submitted to the Administrative Law Judge, the Find'mgs of Fact, Conclusions and Recommendation issued subsequent thereto, and the arguments of the licensee at the public hearing, does hereby adopt and incorporate herein by reference the Findings of Fact and Conclusions of the Administrative Law Judge. FURTHER RESOLVED, that the Recommendation is amended to reflect the Council's discussion of the seriousness of the violation, and the licensee is hereby ordered to pay a fine of Three Thousand Dollars ($3,000) within thirry (30) days of the adoption of this resolution. FITIiTHER RESOLVED, that licensee shall pay the costs of the hearing before the administrative law judge based upon the determination that the defense of the Licensee in this matter was frivolous, azbitrary and capricious. 1 �vuxi ur AppEALS NUMBER CX-97-953 � /� �/ % 7 �f 1 2 A copy of this Resolution, as adopted, shall be sent by first class mail to the Licensee and the 3 Administrative Law Judge. Requested by Department of: Adopted by Council : Date � c�3 _��q'� Adoption Certi£ied by Council Secretary BY: �� a . � -�....�M � Approved by Mayor: Date `f'��/``�� By: � By: Form Approved by City Attox'ney % B � 1L� Approved by Mayor for Submission to Covncil By: COURT OF APPEALS NUMBER CX-97-953 , O � - �� - - - ---- ---- ---- � ., ., � u. ° �c�`�"co,�' ° �` ° � � 199 GREEN SHEE CONTACT PEfl50N & PHONE O DEPqqTMENT DIRE ❑ CITY COUNCIL � GladysMorton,266-8670 A��N �CffYqTTORNEY �C17YCLERK MU5T BE ON COUNCIL AGENDA BY (DATE) NUNBEP fQA O BUDGET OIRECTOR � FIN. & MGT SEFVICES DIR. POUiiNG A ri123, 1997 Consent A enda OBDEq � MAVOR (OR AS$I5TANn � TOTAL # OF SIGNATURE PAGES (CLIP ALL LOCATIONS FOR SIGNATURE) ACTION HEQUESTED. Finalizing Ciry Council acuon taken on April 2, 1997, concerning adverse ac6on against licenses held by E& K Corporauon, DBA Checker's Nite Club, 1066 East Seventh Street. RECAMMENDA710NS: Approve (A) or Peject (R) PEFiSONAL SERYICE CONTRACTS MUST ANSWER TNE FOLLOWING �UESTIONS: _ PLANNING CAMMISSION �_ CIVIL SERVICE COMMISSION 1. Has this person/firm ever worKed under a comract for this tlepartment? _ CIB COMMITTEE _` VES NO 2. Has this personlEirm ever been a ciry empbyee? _ STAFF — YES NO _ DIS7RIC7 CoURT _ 3. Does this person/firm possess a skill not normally possessed by any curtent city amployee? SUPPORTS WHICH COUNCIL OBJECTIV�p YES NO Explafn all yes answers on separate sheet end at[aeh to green Sheet INITIATING PROBLEM, ISSUE, OPPOflTUNITV (Who, Wheq When, Where. Why): ADVANTAGESIFAPPROVEO: S �hest U�A. q�, 'Yi"admqi�e. „ _ . . {':. .. .{ ,t ..�u. DISADVANTAGES IF APPROVED. � - DISADVANTAGES IF NOT APPROVED: 70TAL AMOUNT OF 7RANSAC710N $ COST/FiEVENUE BUDGETED (CIRCLE ONE) YES NO FUNDIWG SOURCE ACTNITV NUMBER FINANCIAL INFORM'ATION: (EXPLAIN) C",OURT OF APPEALS NUMBER CX-97-953 CITY OF SAINT PAUL Norm Co[emarz, Mayor March il, 1997 //�,Jj �J OFFICE OF TI� CITY ATTORNEYIjrj _�)n Peg Brrk, Ciry Atforney � � � �3 - Civi! Division 400 Ciry Ha(I I S West Ke77ogg BHd SainlPaul, �nnesata 55/02 Telephone: b12 266-87I0 Facsimik: 6/1 298-5619 NOTICE OF RE-SCIiEDULED COUNCIL HEARING Mr. Walter Engelhardt Checker�s Nite Club 1066 7th Street East Saint Paul, Minnesota & Mr 55106 Michael Kalis Re: Licenses held by E. & K. Corporation djb/a Checker's Nite Club for the premises located at 1066 7th Street East in St. Paul License ID No.: 16335 File Number: G96-O518 Dear Mr. Engelhardt and Mr. Kalis: Pursuant to your request, the public hearing on the report of the Administrative Law Judge concerning Checker's Nite Club has been re-scheduled to 4:30 p.m „ Wednesday, April 2, 1997, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. Sincerely, �/��.�-� ��-� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 COURT OF App$Aj„$ � OFFICE OF TF� CITY ATTORNEY I`NMBER CX-97-953 Peg Bisk Ciry Aaarney g�- y/7 I�1 CITY OF SAINT PAUL Civi[Divrsion Norm Ca(emm�, Mayor February 20, 1997 Mr. Walter Engelhardt Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota Re: Licenses held by for the premises License ID No.: 400 Ciry Hail IS West Kellogg Blvd Saint Pme� M"mnesot¢ 55102 NOTICE OF COIINCIL HEARING & Mr. Michael Kalis 55106 Telephone: 612 266-8710 Facs�tile: 612 298-5619 E. & K. Corporation d/b/a Checker's Nite Club located at 1066 7th Street East in St. Paul 16335 File Number: G96-0518 Dear Mr. Engelhardt and Mr. Kalis: Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-mentioned license has been scheduled for 4:30 p.m., Wednesday, March 12, 1997, in the City Council Chambers, Third Floor, Saint Paul City Hall 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 wil,l be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Administrative Law 3udge 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, �� ybt�l�2 Virginia D. Palmer Assistant City Attorney Council Research Cenfer � �� 2 u lag7 cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 � �7- �i 7 STATE OF MINNESOTA OFFICE OF ADMINISTRATiVE AEARINGS 100 Washington Square, Suite 1700 COURT OF APpg,r�LS 100 Washington Avenue South NUjy1BER CX-97-953 Minneapolis, Minnesota 55401-2138 February 13, 1997 City Clerk Saint Paul City Council 386 City Hall 15 West Rellogg Blvd. Saint Paul, Minnesota 55102 Re: The Licenses held by E. & K. Corporation, d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota File No. 80-2111-10861-6 Dear City Clerk: Enclosed for service upon the Saint Paul City Council are the Findings of Fact, Conclusions of Law and Recommendation for the above-referenced matter. A copy of this Report has also been served this day on Virginia Palmer of the Office of the City Attorney and Walter Englehardt on behalf of the licensee. Sincerely, ��'�Z� 'ta A. McConnell inistrative Law Judge cc: Ms. Virginia Palmer Mr. Walter Engelhardt Providing Impartial Hearings for Government and Citizens An Equ al Opp E mploy er Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 9�- �i7 STATE OF MINNESOTA OFFICE OF ADMINISTRATiVE HEARINGS 10� Washington Square, Suite 17�0 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 COURT OF AppEAI;S NUMBER CX-97-953 —J February 13, 1997 Ms. Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Kellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Kalis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 Re: The Licenses of E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota Fi1e No. 80-2111-10861-6 Dear Ms. Palmer and Gentlemen: Enclosed for service upon you please find a copy of the Findings of Fact, Conclusions of Law and Recommendation in the above-captioned matter. A copy has also been served this day upon the City Clerk. Sincerely, C �f�( i 2 1;/�/�l� ita A. McConnell Administrative Law 3udge j>cc: City Clerk Providing Impartial Heanngs for Govemment aod Citizens An Equa Opportunity Employe Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 34'I-7346 � Fax No {612) 349-2665 `COURT OF APPEALS �p g' 7_ L�/ � NUMBER CX-97-953 L'J STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF SAINT PAUL in re the Licenses held by E. & R. Corporation, d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota 80-2111-10861-6 FINDINGS OF FACT CONCLUSIONS OF LAW AND RECONIMENDATION The above-entitled matter came on for hearing before Administrative Law Judge Rita A. McConnell on January 6, 1997 at 9:30 a.m., in Room 1503, Saint Paul City Hall Annex, 25 West 4th Street, Saint Paul, Minnesota, 55102. The record closed on January 6 at the close of the hearing. Virginia D. Palmer, Assistant City Attorney, appeared on behalf of the City of Saint Paul, Of£ice of License, Inspections and Environmental Protection (LIEP). No representative appeared on behalf of the license holder. Notice is hereby given that this Report is a recommendation only and not a final decision. The Saint Paul City Council will make the final decision. After a review of the record, it may adopt, reject, or modify the Findings of Fact and Recommendations contained herein. Pursuant to Saint Paul Legislative Code Section 310.05, the City Council will provide each party adversely affected by tl�is Report to present oral or written argument alleging error in this Report and present arguments to the Council related to any recommended adverse action. Parties should contact the City Clerk, Saint Paul City Council, 386 City Hall, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. COURT OF APPEALS NLTMBER CX-97-953 STATEMENT OF ISSUES Q5 9� 1. Whether licensee permitted sexual acts or conduct on the licensed premises in violation of Section 410.05 of the Saint Paul Legislative Code. 2. Whether licensee provided on the licensed premises entertainment that is permitted only under a Class C license. 3. Whether licensee should be assessed the costs of the contested hearing on the grounds the licensee's defense was frivolous, arbitrary or capricious. Based upon all the files, records and proceedings herein, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. Licensee E. & K. Corporation (Licensee) holds a variety of licenses for the business it operates as Checkers Nite Club at 1066 7th Street East in Saint Paul. Included in those licenses is a Class B Entertainment license. The premises is licensed for 150 seats. City's Exhibit No. 2. 2. On October 4, 1996, Saint Paul Police 0££icers Dean Roehnen and Renneth Jensen filed Police Reports indicating they were dispatched to Checkers Nite Club in the early hours of October 4 where they observed a male employee of the C1ub dancing in briefs or underwear. Officer Jensen's report indicated the dancer's genitals were exposed and that a patron had his hand on or near the genitals during the dance. City's Exhibit Noa 1. 3. By letter dated October 25, 1996, Assistant City Attorney Virginia Palmer notified the Licensee that the conduct described above violated the Saint Paul Legislative Code and formed the basis for adverse action against the licenses. City's Exhibit No. 3. 2 COURT OF APPEALS /,_`� / / 7 �� 1 NUMBER CX-97-953 �--/� 4. On November 4, 1996, Licensee through its stockholder Walter Englehardt responded to the Palmer's letter. In that response, Englehardt stated as follows: This is what the Officer saw when he walked into the bar. The male dancer £or the night was wearing a pair of Calvin Rlein boxer shorts, under the boxer shorts the dancer was wearing a gold almost flesh colored T-back. (This is something like a jock strap with the front and rear covered.) The officer observed a white male dancer with his shorts pulled down, the officer did not see the T-back and assumed the genitals were exposed. City's Exhibit No. 4. 5. In response to Englehardt's letter, Palmer advised the Licensee that the conduct admitted in the letter was not permitted under an Entertainment Class B license and af£ered Licensee the option of proceeding to an administrative hearing or resolving the matter short of a hearing. City's Exhibit No. 5. 6. Licensee did not respond to Palmer's November 20 letter. Accordingly, on December 10, 1996, Palmer sent I,icensee a notice of the hearing held on January 6, 1997. City's Exhibit No. 6. 7. The license fee for a Class C Entertainment License is $1,600.00. The fee paid by Licensee for a Class B Entertainment License was $500.00 8. Neither Walter Engelhardt nor any other representative appeared on behalf of the Licensee at the scheduled hearing. Based upon the foregoing, the Administrative Law Judge makes the following: CONCLUSIONS 1. The Administrative Law Judge City Council have jurisdiction in this and the Saint Paul matter pursuant to 3 COURT OF AppEALS NUMBER CX-97-953 � } g�-�r`� � Minn. Stat. Section 14.50 and Saint Paul Legislative Code Sections 310.05 and 310.06. The Licensee received timely and proper notice of the hearing of this matter. 2. The Saint Paul Legislative Code provides for adverse action against a licensee if a licensee fails to comply with any condition set forth in the license, or if the licensee violates a provision of the Code. Saint Paul Legislative Code Section 310.06(b)(5) and (6). 3. Under a Class B Entertainment license, the Licensee is authorized to provide entertainment in which "all of the participants...[are] fully clothed at all times." Saint Paul Legislative Code Sec. 411.02, Class B. In order to provide entertainment which includes performers who are not fully clothed, Licensee is required to obtain a Class C license which permits clothing that is "minimal but in compliance with Chapters 409.09 and 410.05 of the Legislative Code." Saint Paul Legislative Code Sec. 411.02, Class C. 4. Saint Paul Legislative Code Section 410.05 contains several sections which prohibit the exposure of genitals by employees or patrons on licensed premises, including section (1) which prohibits the "employ...[of] any person in the sale or service of alcoholic beverages in or upon the licensed premises while such person is unclothed or in such attire, costume or clothing as to expose to view any portion of the ... genitals." 5. The Licensee is in default herein under Minn. Rule 1400.6000 as a result of its failure to make an appearance at the hearing. 6. Pursuant to Minn. Rule 1400.6000, the allegations set out in the Notice and Order for Hearing may be taken as true and deemed proved without further evidence when a party defaults. 7. The City has established that the Licensee provided entertainment in which the participants were not fully 4 COURT OF APPEALS O 9 7 I� NUMBER CX-97-953 clothed in violation of the conditions of a Class B Entertainment license. 8. The violation of the conditions of the Class B license was intentional and without regard to the limitations on that category of license as set forth in the Saint Paul Legislative Code. 9. The defense of the Licensee in this matter was frivolous, arbitrary and capricious, justifying the imposition of the costs of the hearing on Licensee. Based upon the foregoing Conclusions, Administrative Law Judge makes the following: RECOMMENDATION the IT IS HEREBY RECOMMENDED that the 5aint Paul City Council take adverse action against the licenses of E. & R� Corporation by assessing a fi e in the amount of �9�e—Three� 3,00a, c�c3 Thousand a��. °••-�--' "�?'_�_.. (� and requiring the licensee to pay the costs of the administrative hearing. Dated this 13th day of February, 1997. „� � ` C��/' � r 1 ( Rit A. McConnell � a f. `� A nistrative Law Judge � �� Reported: Taped, not transcribed. NOTICE The Saint Paul City Council is requested to serve a copy of its final decision upon the Administrative Law Sudge as well as the parties by first class mail. 5 COURT OF APPEALS � � 7`�7 � 7 NUMBER CX-97-953 MEMORANDUM The allegations set forth by the City in its Notice of Hearing establish a violation of that Section o£ the Saint Paul Legislative Code {"the Code") which prohibits certain sexual conduct on licensed premises. Since the Licensee did not appear at the hearing, these allegations may be taken as true. The Licensee did, however, respond to the allegations in writing prior to the hearing, establishing a basis for its defense in this matter. In addition, the police officers who allegedly observed the prohibited conduct also failed to appear at the hearing. Consequently, the record alone does not establish a violation of Section 410.05 of the Code. The facts which are accepted as true are those admitted in the letter from Licensee's representative. The letter's description of the dancer's costume indicates the dancer was wearing a flesh colored jock strap, and was dancing with his boxer shorts pulled down. From this description, it is reasonable to conclude that the dancers was not "fully clothed but was rather wearing "minimal" clothing during the entertainment. Such costuming is permitted only with a Class C license under Section 411.02 of the Code. Providing such entertainment with only a Class B license is a violation o£ the conditions in the license and the provisions of Section 411.02. The City Council is permitted to impose a fine upon the licensee in an amount it deems reasonable and appropriate under the circumstances. Saint Paul Legislative Code Section 310.05{1). The Code sets forth certain presumptive penalties for Code violations by on-sale licensed premises. The council is allowed to deviate from those penalties "where the council £inds and determines that there exist substantial and compelling reasons making it more � COURT OF APPEALS � �f ']- �{ / '7 N[JMBER CX-97-953 `� appropriate to do so." Saint Paul Legislative Code Sec. 409.26. The Code does not specify a presumptive penalty for the type o£ violation at issue in this matter. It does, however, indicate that a fine of $1,500.00 is presumptively appropriate for a first violation by a licensed premises with a seating capacity of 150. LIEP argues this penalty is insufficient since the Licensee already saved $1100.00 in licensing fees by paying for a Class B rather than a Class C license. In order to penalize Licensee for this violation, LIEP suggests the assessment of a$2,000.00 fine. Although the evidence supports the conclusion that Licensee disregarded the restrictions on its license, that disregard does not appear so flagzant as to justify imposition of a penalty in the amount requested. LIEP's request overlooks the $500.00 already paid by the Licensee for the Class B license. If the presumptive penalty is imposed, the Licensee will pay the City a total of $2,000.00, thereby incurring expenses of $400.00 beyond the amount it would have paid for an appropriate license. This amount, together with the imposition of the hearing costs, is a sufficient penalty in light of the violation. R.A.M. 7 0 97�� STATE OF MINNESOTA COURT OF APPEALS OFFICE OF ADMINISTRATIVE HEARINGS j�jLJNIgER CX-97-953 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapotis, Minnesota 55401-2138 March 21, 1997 Fred Owusu City Clerk 170 City Hall 15 W. Kellogg Bfvd. St. Paul, MN 55102 Re: In the Matter of the License held by E& K Corporation d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota ; OAH Docket No. 80-2111-10861-6 Dear Mr. Owusu: On February 13, 1997, Administrative Law Judge McConnell. Served the Findings of Fact, Conclusions and Recommendation in the above-entitled matter. Enclosed is the o�cial record, including a copy of the tape recording af the hearing. If Our file in this matter is now being closed. Very truly yours, `�'`G%.��!��" 1 � / t/ Nancy M. Thomas Docket Clerk Telep hone: 612/341-7615 NT Enc. Providing Impartial Hearings for Government and Citizens An Equal Oppd�Sunity Employer Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 COURT OF APPEALS NUMBER CX-97-953 AF'FIDAVIT OF SERVICE BY MAIL � 9 �- ��7 Rita A. McConnell, of the City of St. Paul, County of Ramsey, in the State of Minnesota, being duly sworn, states that on tfle 13th day of February, 1997, she served the annexed Findings of Fact, Conclusions of Law and Recommendation, upon the individuals named below by mailing to them a copy thereof, enclosed in an envelope, postage prepaid, and by depositing same in the U.S. Mail at Saint Paul, Minnesota as follows: Ms. Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Rellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Ralis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 City Clerk Saint Paul City Council 386 City Hall 15 West Kellogg Blvd. Saint Paul, MN 55102 FURTHER AFFIANT SAYETH NOT. C ita A. MeConnell Subscribed sworn to befo e me �.� day of February, 1997. Nota"ry u lic .owv..�aoo.wa«m � STEVEN F. MAT7AINI twsaRr vusuc - auax�sora RAMSEY COUMZ' �b cannsuoa F�Y« Jm.9t. moo COURT OF APPEALS NUMBER CX-97-953 ,....� �.,, r ' ' �� ' h� `� _ �'..`��f_�ta3 _ _ __ )�� . �.. ._ STATE OF MtNIVESOTA OFFICE OF ADMINi5TRATIVE HEARINGS 100 Washingto� Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 � "`�� February 13, 1997 Ms. Virginia D. Assistant City 400 City Hall 15 West Kellogg Saint Paul, MN Palmer Attorney Blvd. 55102 Mr. Walter Engelhardt Mr. Michael J. Ralis c/o Checker`s Nite Club 1066 7th Street East Saint Paul, MN 55106 Re: The Licenses of E. & K. CorpoT'ation d/b/a Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota File No. BO-2111-10861-6 Dear Ms. Palmer and Gentlemen: Enclosed for service upon you piease find a copy of the Findings of Fact, Conclusions of Law and Recommendation in the above-captioned matter. A copy has also been served this day upon the City Clerk. �_ Sincerely�� 6' </� —, ita A. McConnell Administrative Law Judge cc: City Clerk �7-'�l� Providing Impartial Hearings for Govemment and Citizens An Eq Oppor Emp4oyer Administrative Law Section & Administrative Services (612) 341-7600 � TDD No (612) 341-7346 ��ax No (612) 349-2665 COURT OF APPEALS NUMBER CX-97-953 .: : �..:,. �: `� :�Ne`a *u� - ��)�:_ ; : , � STATE OF MINNESOTA � OFFICE OF ADMINISTRATIVE NEAR[NCS 100 Washington Square, Sufte 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 ��n� f 9'7��f�7 February 13, 1997 City Clerk Saint Paul City Council 386 City Hall 15 West Rellogg Blvd. Saint Paul, Minnesota 55102 Re: The Licenses held hy E. & K. Corporation, d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota File No. 80-2111-10861-6 Dear City Clerk: Enclosed for service upon the Saint Paul City Council are the Findings of Fact, Conclusions of Law and Recommendation for the above-referenced matter. A copy of this Report has also been served this day on Virginia Palmer of the Office of the City Attorney and Walter Englehardt on behalf of the licensee. Sincereyy, ( / � / ' � -E�f"�,' �� 'ta A. McConnell �_Adi[tinistrative Law Judge cc: Ms. Virginia Palmer Mr. Walter Engelhardt Prov�ding Impartial Hearings for Govemment and C�tizens An Equal Opportunity Employe Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341J346 � Fax No (612) 34&2665 COURT OF APPEALS NUMBER CX-97-953 9 7-'�17 � \✓ OFFICB OF ADMINISTRATIVE HEARINGS FOR TFiB COIINCIL OF THE CITY OF 5AINT PAIIL In re the Licenses of E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East January 6, 1997 CITY'S PROPOSED EXEiIBITS TO: Judge Rita McConnell, Administrative Law Judge, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401 The following constitutes a list of the City's proposed exhibits for the Administrative Hearing on January 6, 1997. Exhibit No. Exh. No. 1 Exh. No. 2 Exh. No. 3 Exh. No. 4 Exh. No. 5 Exh. No. 6 Description St. Paul Police Report CN 96-157-804, dated October 4, 1996 (2 pp.); License information regarding E. & K. Corporation d/b/a Checker's Nite Club (1 p.); Notice of Violation letter dated October 25, 1996, with Affidavit of Service (3 pp.); Letter from Walt Engelhardt to Virginia Palmer dated November 4, 1996 (2 pp.); Letter from virginia Palmer to Walter Engelhardt dated November 20, 1996 (1 p.); Notice of Hearing letter dated December 10, 1996, with Affidavit of Service (4 pp.). _ COURT OF APPEALS � �}�, � / , NUMBER CX-97-953 `y � Also attached please find courtesy copies of applicable St. Paul City ordinances: St. Paul Legislative Code St. Paul Legislative Code St. Paul Legislative Code St. Paul Legislative Code § 310.05 § 310.06 � 310.17 § 410.05 Respectfully submitted this 6th day of January, 1997. !/l./�ii��'� i c��a� Virgi a D. Palmer Assistant City Attorney Office of The City Attorney 400 City Hall 15 West Kellogg Soulevard Saint Paul, Minnesota 55102 (612)266-8710 COURT OF APPEALS NUMBER CX-97-953 Lic ID .................•- STAT ..................... Business Name..._........ Doing Business As........ Address .................. Zip ...........•••••...... Exp Date ................. License Name ............. NOTE AREA .............. � 16335 AC E & K CORPORATION CHECKERS NITE CLUB 1066 7TH ST E 55106 04J30/97 LIQ-ON SALE-OVER 100 SEATS-B SUNDAY ON SALE LIQUOR ENTERTAINMENT-CLASS B RESTAURANT (B)-MORE THAN 12 SEATS INSP CHANGE FROM O1 TO 02 ON 3/20/92 10401 150 SEATS 5-5-87 97--�f/� 7/17/90 CHANGE OF BUSINESS NAME PER RESOLUTION SIGNED BY ROBERT KESSLER 062591 PH ON APPN FOR NEW CLASS B GAMBLTNG LOCATIO N LICENSE APP'D C.F. 91-1159 5/15/96 - $2,000.00 CHECK FOR PARTIAL LICENSE FEES RETURNED "NSF" - T,AR . 6/25/96 HOME ADDRESS INFO OF OFFICERS PAYMENT OF GIVEN TO Press <RETURN> to continue... A1C-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° Bond Policy Number....... Bond Company ............. Bond Ef£ective Date...... Bond Expiration Date..... Insurance Carrier........ Ins. Policy Number....... Insurance Effective Date. Ins. Expiration Date..... Associated Stock Holder.. JOY OF MESHBESHER & SPENCE LAW FIRM.--LAP-LIC 8/22/96--REC'D PAYMENT FOR $2,000 BAD CHECK - T�AR 12/2/96--RECEIVED LICENSE PAYMENT BACK "NSF" - T�AR UNIONAMERICA INS CO LL966109 07/31/96 04/30/97 MICHAEL J KALIS WALTER H ENGELHARDT Dealer No ................ Tax Id ................... 5121502 Worker Comp Exp Date..... 04/30/95 Telephone ................ 776-7915 Press `C` to continue, 'P` to print, or `R` to redisplay... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° � - - � In Re the Licenses of E. & K Corporation ', — dlb/a Checker's Nite Club — City's Exh. No. 2 COURT OF APPEALS NUMBER CX-97-953 ae „ . o. 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L _ . . ___ _ . _ . _-- -.. !78_Jf _5��n�_S_ SLY'__�0`�-,.!"'� --Qa� �.n_�r _�naG. _ -- i � -- �. rr✓� s�_�----�ht- ---�'�._ -- L t � 3 3 G_ G f IL s 3� L. a y r --- ---- � - �� 3 `� 3 __ r� g il a F f�� - W��_ .. _r�� a,. F e1 I�.__cer�o�o . `�_._f�'O_____ A�- To�r. ��s�- �y, �r.� I % ,: • s� ��:� - �-- -- '�`� _ _ `-tSntfS JI_<_t-'t- --- C� . , sf[. 3� 7 F FOlSTER 5T. PAUL POLICE DEPARTM� �� "� yr � GENERAL REPORT • 0 z � , � J m � CHF ❑ Hom ❑ Rob ❑�� ❑ Coord p i� ❑ Lab �� Team C In Re the Licenses of E. & K. Corporation �� D/C � Burg � Theft ❑ Prop � CAU � F&F 0 Auto � DA [] CO [— �/a Cheeker's Nite Club ' � _ Citv'�E�. No. 1 COURT OF APPEALS NUMBER CX-97-953 REPORT v-�t��,c� or o0 •ST. PAUL POLICE CONTINUATION OF: I . � PARTMENT ORIGINAL REPO 9�-v�7 SUPPLEMENTAL REPORT � �.ntQ 3 l T� t ��. _`i e.,�S�-_ c�, l3� A-�� .'�Z�_ �3 L� 1 3� ��c.� 33 � V+T _�♦ l� ��K2� _0.� . LV � V �� t _ pa.9{�'� G��l G� - W L ihvo W c� '.� w�A�S �Z.volv e� t� O�rh� St - C��J. ar�.`vo,,F � w��l t1.. t1� {�vo,n�- door �__.s� .w -o..� - ��,,ol ��. �-...t s,�, �, d ._ _�_ ��}�. �'�oW 2N.e.v� yV.Q_ o. N.�o��e o<<4+nC2v- /n.. w�s4Yi G. pai r 81 _ --`D'hi �-C �OC.�C�e.� y�vW.CM/' d�+.4�lLl%�q rDr A O�"t� �$�,ciLl. --� '.` w �o.�- . � ca� � • s_ee. �t �O A�,�. � l�:.� r�� 1..� �a�e { � -- }�IQo� Ov �VC.�n�� /�'�e�� cc0. �2..1i �q�� c.v/1 �2.. �.•4✓tcR.V __ H� �7t �v.1}' �'F 1n�3 ��o�f ctowh� z.p�pas�'v+ �,S C,c.ni i�lT �� a��oc�c� _ � �c�a n {v �e��a.. . �n,�� . 0 z � 6' 1 �l -,] � O � �� 1EiT1�Q CHF � Hom ❑ Rob ❑ Jw ❑ Coorci ❑ ID ❑ lab D/C ❑ Burg � Theft � Pmp 0 CAU ❑ F&F 0 AWo O.T.: Typist: �Yes � No Rec ❑ Team �Sex ❑ Rpt� DAO ❑ CA HumServ ' n P�M 62�2-93R � � � X,�./ COURT OF APPEALS q OFFIC ^ TI� CITY ATTORNEY NUIVIBER CX-97-953 • 1 Tmorh �rs, Ciry Anomey �� 7 CITY OF SAINT PAUL Norm Cokmrm, Mayar October 25, 1996 Mr. Michael J. Kalis Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota Civd Division 400 Gry Hal1 IS West Kellogg Blvd Saint Paul M'mnesom 55101 and Mr. Walter H. Engelhardt 5106 Tekphone: 612166-8770 Facs "vrsile: 612198-5679 RE: All licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the property located at 1066 7th Street East in St. Paul License ID No.: 16335 Dear Mr. Kalis and Mr. Engelhardt: I am in receipt of information that could lead to adverse action against your business licenses. The basis for the adverse action is: Saint Paul Police Report CN 96-157-804 statea that on October 4, 1996 Officer Jensen was sent to Checker's Bar, located at 1066 E. 7th Street, Saint Paul, and observed a white male dancer with his shorts pulled down, exposing his geaitals. A patron had his right hand near or touching the male daacer's geaitals. This is a violation of Saint Paul Legislative Code §410.05(3) and (7) and forms the basis for adverse action against aZl the business licenses of Checker's Nite Club. If you don't dispute that the facts highlighted above took place, this matter will be scheduled before the St. Paul City Council for a hearing to determine what penalty, if any, to impose. You will be allowed to speak on your behalf at that hearing. I will need a letter from you saying that you do not dispute the facts, to present this matter directly to the City Council. On the other hand, if you wish to dispute the above facts, I will schedule an evidentiary hearing before an Administrative Law Judge (ALJ). You will receive a"Notice of Hearing," so you will know � � _dn Re the Licenses af E. & K Corpoxation I d/b/a Checker's Nite Club —, City's Exh. No. 3 , COURT OF APPEALS ' • � Q , , , I l � ' 'NUMBER CX-97-953 / `7� Page 2 when and where to appear, and what the basis for the hearing wi11 be. In either case, you should contact me within ten days from the date of this letter. If I do not hear from you, I will schedule the hearing before the ALJ, and you may be held responsible for the costs of the hearing if you do not then appzar and contest the facts. Please call me or have your attorney call me at 266-8710. Very truly yours, �� v Virginia D. Palmer Assistant City Attorney cc: Robert Kessler, Director, LIEP Christine Rozek, LIEP Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 COURT OF APPEALS N[JMBER CX-97-953 :� STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY ) • � 97� y� 7 AFFIDAVIT OF S7sRV2CS BY MAIL JOANNE G. CLEMENTS, being first duly sworn, deposes and says that on October 28, 1996, she served the attached LETTER on the following named persons by plaoing a true and correct copy thereof in an envelope addressed as follows: Mr. Michael J. Kalis and Mr. Walter H. Engelhardt Checker's Nite Club 1066 7th Street East St. Paul, MN. 55106 (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 28th day of October, 1996. .e� /// < �� Notary Public � RITA M. BOSSARD t � Z � - NO�ARYPUBLIC—h"iiJIdESOTA " ' RAPhSEY COUNTY � MyComm.ExpiresJan.31.2000� COURT�OF APPEALS NUMBER CX-97-953 11/4/96 � CHECKERS NITE CLUB 1066 E. 7TH. ST. St. Paul, MN. 55106 (612) 776-7915 License tD. No_ 16335 � � re: St.Paul Police Report CN 96-157-804 Oct. 4, 1946 Virginia Palmer Assistant City Attorney Civil Division 400 City Hall 15 West Kellogg Blvd. St. Paul, MN, 55102 Dear Virginia Paimer, C� 97-�i7 �� NOV 4� 1996 �°�� E� In response to the allegations of Of£icer 3ensen. On the rright in question when Officer 7ensen came into checkers Nite Club he told the manager that they had received a complaint that there was homose�ntai activities �oing on down here. Tenel Hunter who is the bar manager asked a�cer 3ensen what exactly he meant by that. One of the officers said to Terrel you know " sucking cock and butt fucking ." First of a11 these activities aze not 1ust homasexual activities. Secondly and mu�t importantIy these activities wether they are homosexuat or heterose�xal tkey do not take place inside Checkers Nite Club nor are they proma#erl or encouraged by Checkers Nite Ciub. It seems same on� called the St. Paut Police Department and reported something happening inside Checkers Nite Club. It is obviously someone who has never been in tlte har, and was probably just trying to cause probfems for the bar because they don't like the Gay I Lesbian community. And through their ignorance and with their over active imagination called in a complaint of Homosexiial activiries. After the call was received by the Police department a squad was dispatched. Officer 7ensen was the first Officer into the bar. Officer Jensen probabiy has never been in a Cray/Lzsbian bar before and had nt� idea of what to e�ect. So after hearing the call the Officers imaginatipn probably created al1 kinds of pictures of what was going on in the bar. TYtis is what the Qfficer saw when he walked into the har. The male dancer for the night was wearing a pair of Caivin Klein boxer shorts, rander the boxer shorts the dancer was wearlrt$ a gold almost flesh colored T- back. ( This is sometlung like a jock strap with the front and rear covered.} The officer observed a white male dancer with lus shorts pullad down, the officer did not see the T-back and assumed the genitaLs were exposed. Than the report goes on to say " a patron had tris right hand near or touching the male dancer's genitats" but in realiry the customer was putting a$ l.flfl tzp in elastic band at tke top of the T-back. By the time the raid {for Iack of a better word) was over there were 7-10 Officers in the bar. _ _ •n Re the Licenses of E. & K. Corporation� — d/b/a Checker's I�Tite Club — City's E�. No. 4 � COURT OF APPEALS • NUMBER CX-97-953 !0 Page 2 � 97-yj� They not onIy checiced the portion of tke bar that was open but they checked tfie entertainment (dance side) side of the bar which was not open that night and they even went down 'srto the basement Iooking for homosexual activity and of course found none. Qn Jaauary 1, of 1496 I changed Checkers I�iite Club from a basicaily all btack nite cIub inta a bar that caters to the gay I lest�ian crawd. Ths reasan for tlus change was I was tried of having to wear body armor to work and havin� my life ttueatened. Since the change over there has not been a singte Police catt to Ckeckers Nte Cluh_ My customers are a very quite � and do not sause a problem for the Palice department and I or the City of St. Paui. If the City of St. Paut, and / or the Palice departme�t have a prohlem with a bar that caters ta the gay i lesi�ian crowd then I wi11 chauge the bar back into a bIack nite club, then we atl will have to dea( with the guns and gang probletns. I am sure the City of St. Paui does not want this to happen, neither do L After I changed the bar over I had many of the tocal Police officers stop in to thank me for getting rid of the last crowd. There are no iiiegal activities being perFormed inside Checkers Nite C2ub and we try ta keep a eye on the parksng Pot and sunounding areas out side. I feel that this was just a isolated inci$ent, and the golice will not react with such exuberance to the next prank phone call. I hape ihis brings this tap'sc to an end, and clearifies exactly what tr�nsp'ued on the night in question. If you have any more questio�s or need to ta3k to me feel free to call. Some times it is easyier to contact me at home siace the bar doesn't o�en untill 6:00 PM. Thanks b o, W�C Wa.lt Engelhardt oumer CheGkers NitE Club bar# 776-7915 Iwme # 715 425-5 ISb CITY OF SAINT PAUL Norm Colemmy Moyor COURT OF APPEAL5 � NiJMBER CX-97-953 November 20, 1996 Mr. Walter Engelhardt Checkers Nite Club 1066 7th Street East Saint Paul, MN 55106 'l OFFICE OF THE CITY ATTORNEY Tuno�Marx, City Aaorney � �` Civil Division 400 Ciry Ha7t I S West Kellogg Blvd Saint PauZ M"mnesora 55702 7'ekphone: 612 266-8710 Facsimile: 671298-5619 RE: All license held by E&K Corporation d/b/a Checker's Nite Club Dear Mr. Engelhardt: Thank you for your letter of November 4, 1996 explaining your version of the incident reported in Saint Paul Police Report 96- 157-804. I discussed the matter with personnel from the Office of License, Inspections and Environmental Protection, and it appears that the entertainment you have described is still not permissible under an Entertainment Class °B" license. The license you have does not permit partially clothed performers. At this point we can schedule the matter for an adverse hearing before an administrative law judge to determine what the officer in fact saw and whether it is a violation of your license, or you can, if you wish, admit to the incident as you have described it as a vialation of your type of license. If you wish to discuss this you can reach me at 266-8710, or you can send a letter indicating how you wish to proceed. However you choose to proceed, I would appreciate a response by Monday, December 2, 1996. Thank you for your prompt response. Sincerely, `�� .P..,�.,� Virg�a D. Palmer Assistant City Attorney cc: Christine Rozek, Office of LIEP � — - � In Re the Licenses of E. & K. Corporatiun ; ` d/b/a Checker's Nite Club — i City's Egh. No. 5 COURT OF APPEALS NUMBER CX-97-953 � OFFICE OF THE CITY ATTORNEY Trmothy 6 Ma� Gty Attomey 97-�/� CITY OF SAINT PAL3L Nosm Cokmmi, Mayor December 10, 1996 Civil Division 400 Ciry Ha71 I S Weat Kellogg Slvd Saint Pau{ Mmnesow 55102 NOTICB OF HEARING Mr. Michael J. Kalis Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota and Mr. Walter H. Engelhardt 55106 Tekphone: 612 266-8710 Facsimile: 612 298-5619 RE: Al1 licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the premises located at 1066 7th Street East in St. Paul License ID NO.: 16335 Our File Number: G96-0518 Dear Mr. Kalis and Mr. Engelhardt: Please take notice that a hearing will be held at the following time, date and place concerning all licenses for the premises stated above: Date: Monday January 6, 1997 Time: 9:30 a.m. Place: Room 1503 City Hall Annex 25 W. 4th St. St. Paul, NIIQ 55102 The hearing will be presided over by an Administrative Law Judge from the State o£ Minnesota Office of Administrative Hearings: _ Name: Rita MeConnell Office of Administrative Hearings 100 Washingtoa Square, Suite 1700 Minneapolis, Sff�7. 55401 Telephoae: 961-7770 The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse action � -� In Re the Licenses of E. & K, Corporation I — d/b/a Checker's Nite Clnb —, City's Exh. No. 6 COURT OF APPEALS ' NiJMBER CX-97-953 12 9 7 y» against such licenses, under Chapter 310, including sections 310.05 and 310.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non-intoxicating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action against all the licenses you hold at the above premises as follows: Saint Paul Police Report CN 96-157-804 states that on October 4, 1996 Officer Jensen was sent to Checker's Bar, located at 1066 E. 7th 5treet, Saint Paul, and observed a white male dancer with his shorts pulled down, exposing his genitals. A patron had his right hand near or touching the male dancer's genitals. This type of entertaiament is in violation of your Bntertainment Class B license. 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 o£ 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 Sudge 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. Notice of Hearing - Page 2 , COURT OF APPEALS I,� �'J— yi � � NUMBER CX-97-953 If you think a stipulation or agreement can be reached as to the facts, that stipulation will be presented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. If you fail to appear at the hearing, your ability to challenge the 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. If you have any questions, you can call me at 266-8710. Very truly yours, ��_� �� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 Notice of Hearing - Page 3 COURT OF APPEALS NUMBER CX-97-953 STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY ) �� 7-LII`7 AFFIDAVIT OF SERVICE BY MAIL JOANI3E G. CLEMENTS, being first duly sworn, deposes and says that on December 13, 1996, she served the attached NOTICE OF HEARING on the following named person by placing a true and correct copy thereof in an envelope addressed as follows: Mr. Michael J. Kalis and Mr. Walter H. Engelhardt Checker's Nite Club 1066 7th Street East St. Paul, MN. 55106 (which is the last known address of said person) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 13th day of Decembar, 1996. �.�r�.Z�� Q�O� "" � Notary Public � , RITA R4. BOSSARD � �# NOTARYPUBIiC—MlhJtieSOTA S � R.4MSEY COUNTY � � MyCotnm.ExPiresJen.31.2D00 COURT OF APPEALS NUMBER CX-97-953 /3 : City of Saint Paul City Attorn.ey's Office 4oQ City Iiall Saint Paul, Minnesota 55102 FAX #: 298-5619 FAR TR�.NSMIZ°PAL COVER SHEET DATE: TO: EROM: January 6, 1997 Administrative Law Judge Rita McCOAaell Peter Pangbom, St. Paul City Attorney's Office phone: 266-8776 NDMBER OP PAGES {INCLUDING COVER SHEET}: 6 COMMENTS: g7-y�-�� `` January b, 1997 Administrative Hearing for E. � K. Corporation d/b/a Checker's Nite Club Attached is a copy of St. Paul Legislative Code �409.26 pertaining to presv.mptive penalties for violations involving St. Paul licensed establishments with liquor licenses. CONFIDENTIALITY NOTICE: THE DOCVMEN`T(S? ACCOMPANYING THIS FAX CONTAIN CONFIDENTIAL INFORMATIOI3 WHICH IS LEGALLY PRIVILEGSD. THE INFORMATIOAT IS INTENDED ONLY FOR THE USE OF THE INTENDED RECIPIENT NAMED ABOVE. IF YOU ARE ISOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTSFIED THAT ANY DISCLOSIIRE, COPYING, DISTRISVTION OR THE TAKING OF 11NY ACTION IN RELIANCE ON TIiE CONTENTS OF THIS TELECOPIED INFQRMATION EXCEPT ITS DIRECT DELIVERY `PO THE INTENDED RECIPIENi' NAMED ABOVE IS STRICTLY PROHIBITED. IF YOV HAVE RECEIVED THIS FAX IN ERROR, PLSASE N�TIFY US IMMEDIATSLY BY TELEPHONE TO ARR�NGE FOR RETURI3 OF THE ORIGINAL DOCL3MENTS TO US. WkiOb : T S L6. 90 NFlf ZA'� 5��s"9b66 Ol 3JIdd0 S�t3NJ011tl J,lIJ W02J� 6£:0T L66t-9e-NCf �� 1 ■ ■ ■I � COURT OF APPEAT,S NUMBER CX-97-953 § 310.15 !3 97-y�7 LEGISL9TIVE CODE definition in section 310.01, shall for the purpose of this section include the individual partners or members of any partnership or corporation, and as to corporations, the oflicers, agents or mem- bers thereof, who shall be responsible for the violation. (Code 1956, § 510.15) Sec. 310.16. Reserved. Editor's note--Section 310.16, pertaining tu license fees and aanusl incmases, sad derived from Ord. No. 16885, adopted Feb. 11, 1982; Ord. tio. 11059, adopted Oct 20,1983; and Ord. No. 17303, adopud Oct. 29, 1985, �as repealed by Ord. No. 17884, § 1, adopted \*ov 19, 1991. Sec. 310.17. Licensee's responsibiIity. Any act or conduct by any clerk, employee, manager or agent of a licensee, or 6y any person providing entertainment or woridng for or on behalf of a licensee, whether compensated or not, which act or conduct takes place either on the licensed premises or in any pazking lot or other area adjacent to (or under the lease or control ofl the licensed premises, and w}uch act or conduct violates any state or federal statutes or regula- tions, or any city ordinance, shall be considered to be and treated as the act or conduet of the licensee for the purpose of adverse action against all or any of the licenses held by such licensee. Tb the e�ctent this section is in conflict with sections 409.14 and 410.09 of the Legislative Code, this section shall be controlling and prevail; but shall not otherwise amend, alter or afi'ect such sections. (Ord. No. 17629, § 1, 1-31-89) Sec. 310.18. License fee schedule. Notwithstanding the provision of any other ordinance or law to the contrary, the following fees are hereby provided for all the licenses listed herein. These fees supersede all inconsistent pra visions, including, but not limited to, graduated fee provisions, in these chapters and in other ordinances and laws, and include the fee for the license application as part of the license fee; provided, however, that this section does not amend or modify sections 310.09(a) or 310.09(d) of the Legislative Code �cith respect to exempt orga- nizations or late fees. Pursuant to section 310.09(b) of the Legislative Code, these schedules shall be posted in the office of the director of the office of license, inspections and environmental protec- tioa. These fees shall be effective for license renewals and new license applications occurring on and after January 1, 1995, or on the effective date of this section, whichever is later; provided, however, that with respect to all licenses whose renewal dates xcur after the effective date of this new schedule, there shall be no increases in, nor offsets or refunds of, the e�sting fees paid, or due 3IId OW1IIg. (a) ENFORCEMENT LEVEL 1 Chapter/Seciion No• License Deuription Fee 167 Commereial Vehicle $66.00 198.04 Keepiag of aaimals (F.xotic pets) 66.00 316 Animal Foods Management & Dis- tribution 66.00 319 Amusement Rides 66.00 323 Christmas ZYee Sales 66.00 325 Close Out Sale 66.00 327 Dry Cleaaiag Pickup Station 66.00 332 Liquid Fuel Vehiele 66.00 333 Solid Fuel Vehicle 66.00 336 Private Fuel pump 66.00 340 Mereantile Broker 66.00 345 Peddler (Solicitor/h�ansient) 66.00 348 Reatal of Clothing & Vehicle � ' 66.00 349 Reatel of Clothes Attire Vehicle 66.00 350.02 Reatal of Hospital Equipmeat 66.00 350.02 Rental of Hospital Equipment Ve- hicle 66.00 351 � Rental oC Kitchenware 66.00 353 Rollu Riaks 66.00 355.01 Sewadhaad Dealer- ' (a) & @) Siagle Locatioa 66.00 357.03 Refuse Hauler-Each Vehide Over Oae 66.00 359 Sound TYvcks & Broadcast Vehi- cles 66.00 371 Finishing Shop 66.00 361.14 Tbw 1Y�uck/4Precker Vehicle 66.00 362 TYee 1Yimmer-Additional Vehicle 66.00 372 TSre Ftecapping Plant 66.00 376.16{d) Taxicab Driver (new) 66.00 377 Iawa Fertilizer & Pesticide Ap- plication 66.OQ 380 _ Tanning Facility 66.00 382 Pet Grooming 66.00 409.11 Outdoor Chsage in Service Area 66.00 412 \2assage Center (Class B) 66.00 414 :�3assage Therapist 66.00 924.02 Gasoline Filling Stations 66.00 � "�, :_:`j �-� Supp, No. 33 2036 COURT OF APPEALS I� a NUMBER CX-47-953 ! > 7 � 7 g 409,25 LEGISL9TNE CADE committee registered under Miaaesota Statutes, Seetion IOA..I4, may obtain an on-sale ficense to sell cvine and strong beer nut ezeeedistg faurtzen (14) percent alcohal bgvolnme for �+n++nption on the licensed pxemises only fihe fee for sush li- eense shall be estabiished by ordinance as pro- vided in seetion 310.09(b) afthe Legislative Code, and lieenses shall be issued for periods not to exeeed three (3) eonsecutive days. No orgaaiza- tion or politieal committee shsll be granted more than three (3) lieenses withm a twelve-moath period. No more than three (3) such licenses may be granted for any one (1) locatioa within the city. (b) Liquor Zieenses. NoLwiths'tanding any other provisioa of this ehapter, a club or charitable, religious oz ather aonprofit organization in exis� ence for at least three (3) years may obtaia on-sale license to sell iatoxicating liquor for con- sumption on the licensed premises oaly and ia connectioa with a soeial event within the city sponsored by the licensee. The lieease may pro- vide that the lieQnaee may contract for into�cat ing liquor catering services with the hoider of a full year on-eale intoxieatng liquor lioense issued by the aty. The fee for such ficease sfiall be fortywne dollars ($41.001 Per day and shall be issued for not more than three (8) ceasecutive days. No organizatioa shall be granted more thsn 8ve (5) snch liceases per calendas year. tc) Applicatfion. Application for such temporary licenses shall be made on forms provided by the inspector aad shall coatain sueh iaformation as speafiedbytheinspector, iaeludiagthefollowing. (1) The nazae, address and purpose of the organization, tagether witl� the names and addresses of its vfficers, and evidence of aonpzofit status or of its status as a club uader sectiws 409A2 above. (2) The gurpose for which the temporary li- eease is sought, together with the place, dates and hours during which wiae or intofficating liquor w� be sold. (3) Consent of ttie owaer or manager of the premises or person or group with lawful responsibility for the premises. (4) �idence that the managez or director has xeceived alcohol awareness Lrarning pm vided hy a bona fide instructor ar the tity. Slipp. Na 34 (� Applie¢tiorz of other provisions of fhis ch¢p- fer. No other provisions aFthis chapter shall aPP�Y to lisenses granted vader ehis seetia�, eacept sections 4Q9.Ofi, 409.07, 409A8 (egcept elauses (113 and {12)), and seetions 409.09 thzough 409.i4. (e) Class II Zicense. Notwitl�standing any other provisioa of law to the crontzarg, the temporary Wine and liqaor liceases provided in this section shall be administered as a Ctass II license and subject to the provisions of these chapters govern- ing Class II licenses. The inspector shall make a]1 referrals as provided by section 310.03, but the director may require theinspector toissue such licestse before receivfng any recommendations on the applieation thezeof if necessary to issue such license on a timely basis. (Ord. No.17459, § 1, 5-28$7; Ord. No.17569, § 4; $-7-58; Ord. No. 17853, $ 1, 7-18-91; C.F. No. 941561, $ 2, 11-I&44} Sec. 40526. Iatoxicating liquor, nonintoffi. cating malt liqnor; presumptive penalties. (a) Purpose. '1`he purQose of this seetioII is to establish a standard by which the city covneil determines the length of license suspensions and the propriety of zevocations, sad shall app�y to all oa-sale and off-sale lieensed premises for both intosioatiag 3iquor under this chapter aad aonin- tofficatiag liquor under Cbapter 410. 3'hese pen- alties are presumed to ba appropriate fcr every ease; however the eouacii maY deviste therefrom ut aa individual case where the eouacil finds aad determiaes 'lhat there effist snbstaniial aad com- pelling reasons making it more appropriate to do so. When deviatiag from these standards tbe eouncil sball pravide written reasons that specify why the penatty selected was more appropriate. (b) Pres�smp£ive penalties for aiolat�orzs. Ad- verse penalties for convictions or violations shall be presumed as follows (unless speci5ed, aum- bers below iadieate consecutive days' suspension): 2I94.4 Wti07:iT L6. 90 NFir zct'a 6AZS9b66 Ol 3�Idd0 SJ.3Na011ti J,lI� WObd 6£:0i L66T-90-NFif COURT OF APPEALS NUMBER CX-97-453 ^� !3 q�-�>� rsc�s Appear¢nee Type of V'wlation Ist 2nd 3rd (� Commissioa of a felony related to the li• Revocation NA NA censed activity. (2) Sale of alcoholic heverages while Ii�nse Revocation 1�*A NA is aader suspension. �—� � Svpp. No. 24 WtiOb : T Z L6. 90 Ntif sA � � 6AZ��6 Ol 2194.5 4th NA NA § aosss : 3J1��0 SA3N?1011ki J.lI� Wd�J� 0b:6S L65S-90-NHf �.. CNUMBER C X 9 E9 S �� 9 7 7 _, Type of Vwlatioa. (3) Sale of aloaholic be�*erages to undeaage pCT80A. (4) Ssle of almholic beverage to iatofficated person. (�) Af�er hours eale of almholic beverages. (6) After houzs dispIay or consumption of al- cokolio be�erage. Refu.,at tq sllow city inspeetors or police admission to inspecE premises. Illegal gambling on premises. Fail to take reasanable steps to stop petson fram leaving premises with aIco- holiC beverage. Failure to make application for Iicense renewal prior to license expiration date. (li) 3ale of iatoaicating liquor where only li- cense is for nonintoscating Iiquor. (12) Failure to tomp�y with statutary, and or dinanee zequirements for liab�7itq insur- aace. (7) (S) (9) (10) LIC�NSES APPea'¢nte Ist 2nd 3rd 4th $ 40926 I 1 1 1 5 1 1 -,-. 6 1S Revocation F) SS REVOC2t2077 � 6 18 Revocation 4 12 Ztevotation Rar those violatio='is which occur ia on-sale in- toxieafing liquor establishments ]isted above in numbers (3), [4), (6), (6), (8), (9), i10) snd (11), the couaci7, m&y in its disaetioa impose a fine in Iieu of a suspension oa the first appearance, in a�r dance with the following schedvle wfiose amouats are presumptively appropriate: Seating capacity 0-99 . . . . . . . . . . $ 500.00 Seating capacity 1Q0-149 . . . . . . . 1,000.00 Seating capacity 150-199 . _ . . ... 1,500.00 Seati.ng capacity over 200 . . . . . . . 2,000.00 For those vioIations which occur in off-saIe in- toxicating liquor establishments listed above in numbezs (3), (4), f�?, (6), (8), (9), t10) and i21), the eoundi may in its discretion impose a fine in lieu of a suspension on the fizst appeazance, in accor Supp. No. 21 WtiOb : I T L6. 90 Ntir b�l•.-1 F�R7S'9b�,F, Ol 15 Rzvo- NA cation 6 I8 Revocation 4 12 Revocation 6 18 Revocation 1 6 18 Revocation 10 Revo- NA NA cafion dance with the following scl�edule, whoae amounts are presumptively appzapriate, based on the square footage of the retail area of the establish- ment: 2,000 squase feet arIess......._. $ 500_00 2,001-5,000 square feet. . .. . . . _ . 1,QOO.OQ 5,001-10,000 square feet.....__. 1,a00_00 10,001 squara feet or more_ ...... 2,000.00 tc) Mutiipie aiotafion.s. At a licensee's'first ap� peszance before the city council, the wuncil shall consider and set upon all the vioiations that have been alleged andlor incorporated in the notices sent to the licensee under the administrative pro• cedures act up to and including Lhe formal notice of hearing. The council in that case shall.mnsider the presumptive penalty for each such, 4iolation 2195 3J1��0 SA3N21011tl �lIJ W6�� 0b:0Z L66S-90-NHS COURT OF APPEALS NUMBER CX-9�-953 � ao�as /3 g� LEGISLA7NE CODE under the "IBtAppearanoe" co2utnn in para�aph (b) above. The occartp�sce of multiple violatioas shail be g:vuads for deparEure from sueh penal- ties ia the coaaeil'8 discretion, Violatiotts occurring afFzr the date of the notice of hearing t�at are brought to the atf,esstion of the dty attorneq prior to the hearing date befcrn an adminisfxative law judge (or before Lhe eouncil in an uaeontested Paeks hearinpa may be added to t�e notice(s) by stipvlation if the licensee adauts to the fads, sad shall in that case be treated as though part of the "lst Appearance." In all other cases, violations occurring at�er the date of tbe formal notice of hearing shall be the subject of a sep2rate pzoceeding and dealt a-iih as a"2nd AppeaTanee" before the council. The eame grocedures shall apply to a second, third or fourth appearance before Ehe council. td? Subser1uen.t appearances Upon a second, third or fourth appearance before tbe wuncii by a partiCUlar licsasee, the oouncil shall impese the presumptiva penalty for the violation or viola- tions giviag rise to the subsequent appeazance without regatd to 'the particuiar violation os vio- lations that were the subject of the fust or prior appearance. (e) Computation of lime (1) If a licensee appears before tbe muncil for aoy violatiian ia pasagraph (b) where that violation has oceurred.vithin eighEeen I18) ealendas montbs af�er tlte fitst appeataace ofthe sa,me Iieerisee for a violatian listed ia paragaph (b) above, the eurrent appear• ance s�all be treated as a seeond appear- ance for the puxpose of determuiing the pre svmptive penalty. (2) If a liceasee has appeared befoze the council on two (2) previous oeeasions, both Sor vio- lations Iisted ia paza�aph (b) abave, and if said licensee again appears before the council far a violation Iisted i� said para- graph (bl, and if the current �zolation oc- cusred wifhin thirty (30) calendar months of the violation that gave rise to the first appee.-aace before the touncil, then the cur- rent appearance sha12 be treated as a thizd Supp. No. 21 appearance for the purpose of determiniag Pre�mPfive PenaltF• (3) If a licensee has appeared before the �timdi on chree (3) previous nassiona, each Sor vi olations listed in paragraph (b) above, and if said licensee again appears before the couneil for a vioIatioh Iisted in para�aph (b} above, and if the �urrent vioiation oa curred within forty-ei�hht (48} calendar monlha of the violation that gave rise to the firsE appearanee, then the current ap. pearance shall be treafed as a fourth ap� pearance for the purpose oidetermining the presumptive penalty. (4) Any appearance not covered by subsections (1), (2) or (8) above shall be treated as a first appe$rance. In case of multiple ��olafao�s in any appearance, the dste to be used to measure whether eighteen (181, thirty (30) or forty-eiglrt {48} months has elapsed shall be the date of the vioIation last in time at the fint appesrance, and the date of the vio2ation fust in time at any subsequent appeaxance- (fl OtTzerpen.aities. Nothing in this settion shall restritt oz limit the suthority of the council Lo suspeud up to sixty (60) days, revoke the lieense, ar �npose a civil fine not W easeeed two thousand doliazs ($2,000.00), to impose eonditions or take as�y atfier adverse action in accordance with Iaw, provided, ihat the license holder has been a{;'arded aa opportunity for a hearing in the mgnner pro- vided foi in Section 310.05 of this Code. {gY Efject of responsible businrss practices in de- terntinirzgperzalty. In determiningthe appropriate penalty, the council may, in its discretion, con- sider evidence submitted to it in ihe case of un- contested adverse actions oz submitted to a hearing examiner in a crontested hearing upon which find� � ings af fact have been made that a licensee has folIawed or is likely to iollow in the future respon- sible business practices in regard to sales to in• toxicated persons and sales to miaors_ il) Ror the purposes of sen to intoxicated persons, e.�idence of responsible bvsiness praetiees may iaelude, but is nos limited to, 2?96 we0b:ii ze . 90 Ntlf SR'rI F,G2£9b66 Ol 3JI��0 SJ.3N2J011tl J.lIJ W02i� Tb:OT L66Z-96—Ntif � �--. �cExsrs f3 `�7-�l� § �ia.oi those poliaes, procedures and actions that are implemeated at time ofservice and that: a. Encourage pezsons not tn beoome ia- texieated if they consnme alcoholic bev- erages on the defendant's premises; b_ ptomoEeav�lab�litpofnonalcoholiebev- erages aad food; c. Promote safe ttansportation alterna- tives other thaa driving while intoa-i- eated; d. Prohibit employees and agents of de- fendant from eonsuming alcoholie bev erages while actiag in their capacity aS employee or agents; e. Establish promotions and mazketing ef- forts that pubIicize responsible busi- ness practices to the defendaat's cus- tomers aad community; . f. Imp]ement eomprehensive tra'n'ne pra eQduies; g. ,Maintaia an adequate, Eraiaed num- ber of employeeq and agents for the type and size of defendsnt's business; h. Establish a standardized method for 7�iring quatified employees; i. Reprimand employees who violate em- ployer policies and prxedures; and j. Show that the $censee has enrolled in aecogni2ed coucses providing training to self and one (1) or more emp]oyees of the licensed estabiishment in regard to staadards for responsible fiquor ser vice. (2) Fo�r the purposes of seiroice to minors, evi- dence ofresponsible business practices may include, but is not li.mited to, those listed in subsection (1) and the following: a. Management policies Ehat are imple- mented at the time of service aud that ensure the examination of proof ofiden- ti&cation (as established hy state law) for alI persons seeking service of alco- holic beverages who may reasonably be saspected to be minors; b. Comprehensive training of employees who axe responsible for such exaznina- tion regarding the detection offalse or altered identification; and Supp. No. 30 90 ;d -"-" ^' COURT OF APPEALS NUMBER CX-97-953 c. Enxnllxaeat by the licensee m reeog. nized conrses ptovidin� h�sining to self and aae (1) or mose emplopees of the liceased establishment in regard to standards for responsible liqaor ser- vice. (Ord. No_ 17556, § 1, 425-86; Ord. No. 17657, § 14, 6-8-89; Ord. No. i7675, § 1, 8-22-89; Ord. No. 17694, § 2, 11-7-89; Ord_ No. 17756, §' 1, &7-9fl; Ord. No. 17924, §§ 2, 3, 5-7-92; C.F. I�To. 92-1s29, � 1, 2-9-93) Chapter 410. Noniatofficating Malt Yaquor* Sec. 410.01. Y.icense requixed; definitions; es- ceptions. , (a) No persan shall sell noninto�cating malt liquors at retaiI in Saint Paul without a Iicettse. tb) On-sale licenses shall permit the licensee far the sale of said aoninto�cating malt liquors to sell such for cronsumption on the premises. Oa- saie licenses shall be graated only to restaurants, hotels, bona fide elssbs, establishmeats foT the ea- clusive sale ofnoninta�cating mait bevesages and establishments licensed for the eaclusive sale of into�cating liquars. The term `bona fide clubs" shaR include private clubs licensed under former Chapter 404 o£this Code so long as they meet the requirements of Minnesota Statutes, Section 340A.101, subseetion 7. (c) Off-sale Licenses shall permit the licensee of suth nanintofficai3ng malt Iiquors to sell same in original packages fer consumption off the prem- ises only. (d) Nothingherein contained shall be eonstnied to prohibit the sale and delivery in oripnal pack- ages directly to the eoasumer by the manufac�Eur- er or distributor of nonintoaicatiag malt iiquors. te) No off-saIe license shall 6e issued for any place where aoaintoxicating malt beverages shall be sold for consvmptiou on the premises. •Crosareterence�Liquor and beerregulauons general- ly, Title 74YIV;� inWSi�ting liquor, Ck. 499; use of beer and iato��ating iiqvor pmhibiud in movon pieture drive•fn thr. atres, y 416.O6Sb). 2197 WtlOV : T S L6. 96 Ntif OGI'.-I F.Ia7S"QbF.f� COURT OF APPEALS NLJMBER CX-97-953 �'�:�'� - ;� �yti :�� _ ;� - ;_ ��1: y:: :,.; _ .-: December 30, 1996 STATE OF MINNESOTA OFF'ICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Mianeapolis, Minnesota 55401-2138 Peter P. Pangbom Paralegal City of St. Paul Civif Division 400 City Hall 15 West Keliogg Boufevard St. Paui, Minnesota 55102 g��'�l7 �� RE: Licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the Premises Located at 1066 7th Street East in St. Paul Dear Peter: Per yaur tetter of December 20, 1996, enclosed find the subpoenas you requested for Officer Dean Koehnen and Officer Kenneth Jensen. Sincerely, � �"t._ LOUlSE COOPER Office of Administrative Hearings Telephone: 612/349-2882 enciosure Providing Impartial Hearings for Government and Cifizens An Equal Opportundy Employet Administrative Law Section & Administrative Services (612) 341-7600 � TDD No (612) 341-7346 � Fax No. (612) 349-2665 COURT OF APPEALS NUMBER CX-97-953 ','�....,, � ';vi�;r.::; ' � _ _,_ ��1: y `�, STATE OF MINNESOTA OFFICE OF ADMiNISTRATIVE HEARINGS HEARING SUBPOENA TO: Officer Dean A. Koehnen St. Paui Police Department 100 E. 11th Street St. Paul, Minnesota 55101 GREETINGS: 9�-yi7 15 YOU ARE HEREBY COMMANDED to lay aside ali your business and excuses and to appear befo�e Administrative Law Judge Rita McConneil of the Office of Administrative Hearings of the State of Minnesota, at Room 1503, City Hali Annex, 25 West 4th Street, in the City of St. Paul, Ramsey County, Minnesota, on the 6th day of lanuary, 1997, at �.�3Qo'clock in the forenoon, to appear as a witness in #he matter of Licenses held b�E & K Corporation d/b/a Checker's Nite Club for the Premis�s Located at 1066 7th Street East in St Paul. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kevin E. Johnson, Chief Administrative Law Judge, at Minneapolis, Minnesota this 3 th of December, 1996. �_� � KEVIN E. JO SON Chief Administrative Law Judge 612/341-7600 Subpoena requested by: Peter P. Pangbom (612) 266-8776 COURT OF APPEALS NUMBER CX-97-953 � :}��,...: �,�' '^; ;� _ .�2r. : _ - _��.: y '' STATE OF MINNESOTA OFFICE OF ADMINISTR ATIVE HEARINGS HEARING SLIBPOENA TO: O�cer Kenneth C. Jensen St. Paui Police Department 100 E. 11th Street St. Paul, Minnesota 55101 GREETINGS: 9�-�t7 /5 YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appea� before Administrative Law Judge Rita McConnell of the O�ce of Administrative Hearings of the State of Minnesota, at Room 1503, City Hall Annex, 25 West 4th Street, in the City of St. Paul, Ramsey County, Minnesota, on the 6th day of January, 1997, at 9:30 o'ciock in the forenoon, to appear as a witness in the matter of Licenses h�id by E& K Comoration d/b/a Che ker's Nite Ciub for th Pr mise Located at 1066 7th Street East in St PauV. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kevin E. Johnson, Chief Administrative Law Judge, af Minneapolis, Minnesota this 30th of December, 1996. � � KEVIN E. JOH ON Chief Administrative Law Judge 612/341-7600 Subpoena requested by: Peter P. Pangborn (612}266-8776 COURT OF APPEALS �� OFFICE OF TFIE CITY ATTORNEY NUMBER CX-97-953 r„ao:n E. ,tir�, crty Aao,� �7-LII� CITY OF SAINT PAUL Norm Co7eman, Mayor December 20, 1996 cinit Division 400 City Hall I S West Kellogg Blvd Samt Paul M'vmesom 55702 Telephone: 672 266-8710 Facsimik: 612 2985679 VIA FAX AND U.S. MAIL Judge Rita McConnell c/o Louise Cooper Office of Admiuistrative Heazings 100 Washington Square, Suite 1700 Minneapolis, Minnesota 55401-2138 RE: Licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the premises located at 1066 7th Street East in Saint Paul Dear Judge McConnell: The purpose of fhis letter is to request subpoenas pursuant to Minnesota Rules, part 1400.7000 relating to the above-mentioned contested case hearing that is scheduled to be heard before you on Monday, January 6, 1997. This request is made of behalf of Ms. Virgnua Palmer, the attorney assigned to this matter. The City of St. Pau1 License Division will be calling these witnesses to testify regazding the incident which serves as a basis for the action against the licenses of E. & K. Corporation d!b/a Checker's Nite Club. In order to ensure these individuals will be in attendance to testify, the City of St. Paul requests from the State Office of Administrative Hearings subpoenas for the fo?lowing individuals: 1.) Officer Dean A. Koehnen 2.) 5t. Paul Police Dept. 100 E. l lth Street St. Paul, MN 55101 Officer Kenneth C. Jensen St. Paul Police Dept. 100 E. l lth Street St. Paul, MN 55101 The hearing is scheduled to start at 930 a.m. on Monday, January 6, 1997, in Room 1503 City Hall Annex, 25 West 4th St., St. Paul, MN 55102. COURT OF APPEALS , /� CJ 7— y/� NUMBER CX-97-953 If you need additional information or have any questions regazding flus request, please do not hesitate to ca11 me at 266-8776. Thank you. Sincerel , > � Peter P. Pangborn Paralegal � COURT OF APPEALS '/�f OFFICE OF "I'I-IE CITY ATTORNEY ' NLTMFiER CX-97-953 ! Timothy E Macc. Ciry Aaorney 9 7- '�j? �1 =... .: . -- CIT'Y OF SAINT PA�, �',, Norm Co7eman, Mayar J L� j`�ry, i p�j ?: ^� � i I}..... � - �.,li: - �'e^=��-� ' I ��-J:;:YJ.�. December 10, 1996 Mr. Michael J_ Kalis Ciecker's Nite Club 1066 7th Street East Saint Paul, Minnesota Civil Division 400 Ciry Xall IS Weu Kellogg Blvd Saint Pau� M'nmesota 55701 NOTICE OF HEARING and Mr. Walter H. FnSelhardt 55106 Telephone: 612 266-8710 Facsintile: 612 298-5619 RE: All licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the premises locatad at 1066 7th Street East in St. Paul License ID NO.: 16335 Our File Number: G96-0518 Dear Mr. Kalis and Mr. Engelhardt: Please take notice that a hearing wi11 be held at the following time, date and place concerning all licenses for the premises stated above: Date: Monday January 6, 1997 Time: 9:30 a.m. Place: Room 1503 L'it� $nil s'�a"LT1EX 25 W. 4th St. St. Paul, bII1 55102 The hearing will be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: Name: Rita McConaell Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN. 55401 Telephone: 961-7770 The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse action , COURT OF APPEALS �� g 7 �I l 7 NUMBER CX-97-953 against such licenses, under Chapter 310, including sections 310.05 and 310.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non-intoxicating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action �gainst all the licenses you hold at the above premises as follows: Saint Paul Police Report CN 96-157-804 states that on October 4, 1996 Officer Jensen was sent to Checker's Bar, located at 1066 S. 7th Street, Saiat Paul, and observed a white male daacer with his shotts pulled dowa, exposing his genitals. A patroa had his right hand near or touching the male dancer's genitals. This type of entertainment is in violation of your Entertainment Class 8 license. 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 part5 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 wham 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. Notice of Hearing - Page 2 COURT OF Al'PEALS 1 � C�� —/� f'� NUMBER CX-97-953 �� If you think a stipulation facts, that stipulation will Judge for incorporation int action. or agreement can be reached as to the be presented to the Administrative Law o his or her recommendation for Council If you fail to appear at the hearing, your ability to challenge the 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 objec.*_ion is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. If you have any questions, you can call me at 266-8710. Very truly yours, �`��_� �� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MI3 55401 Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 Notice.of Hearing - Page 3 COL R OF APPEALS )� 7 � _ y �� NLIMBER CX-97-953 t� § 410.04 LEGISL9TIVE CODE A violation of the foregoing shall constitute suffi- cient grounds for adverse action against the li- cense or license application, including revocation or denial of the license. (Code 1956, §§ 310.07-310.10, 310.13, 310.14; Ord. No. 17014, 4-28-83; Ord. No. 17174,10-23-84; Ord. No. 17437, § 1, 2-2487; Ord. No. 17461, § 1, 5-28.- 87; Ord. No. 17474, § 1, 7-7-87; Ord. No. 17657, §§ 11, 13, 6-8-89; Ord. No. 17705, § 3, 1-16-90; C.F. No. 93-1324, § 1, 11-23-93; C.F. No. 941659, § 1, 12-28-94) Sec. 410.045. Safety in on-sale establish- ments. This section applies to on-sale licenses for the sale of nonintoxicating liquor. (a) Notice to police chief. The licensee shall, with- in thirty (30) days following November 4, 1994, notify the chief of police in writing if any firearms as defined in section 225.01 of the Legislative Code are kept on or within the licensed premises. Such notice shall include a description of each such fire- arm and the location where it is kept on the li- censed premises. Thereafter, the licensee shall no- tify the chief of police if there aze any additional firearm or firearms, or changes in the location, number or description of each such firearm listed in the first notice, kept on or cvithin the licensed premises, within five (5) days following any such change. The licensee is responsible for ensuring that the notification given to the chief is updated and accurate with respect to any changes in kind, number or location of fireazms kept on or within the licensed premises. (b) Tr¢ining. The licensee shali, with respect to all employees who (1) are authorized to use a fire- arm on the licensed premises and (2) who aze not prohibited by law from using such a firearm, pro- vide training in fireanns safety and the lawful use of deadly force, as well as in procedures for main- taining arder and peace on the licensed premises by methods other than use of firearms andlor dead- ly force. The training required by tlus subsection shall be acceptable to the chief of police and pro- vided for all existing employees within ninety (90) days foliowing November 4, 1994, and for future employees within sixty (60) days following their employment. (C.E No. 94-859, § 3, 10-5-94) Sec. 410.05. Certain seaual conduct prohib- ited. The following acts or conduct on licensed prem- ises are unlacvful and shall be punished as pra vided by section lA5 of the Saint Paul I.egislative Code: (1) To employ or use any person in the sale or service of alcoholic beverages in or upon the licensed premises wlule such person is un- clothed or in such attire, costume or cloth- ing as to egpose to view any portion of the female breast below the top of the azeola or of any portion of the pubic hair, anus, cleft of the buttocks, wlva or genitals. (2) To employ or use the services of any hostess while such hostess is unclothed or in such attire, costume or clothing as described in subparagraph (1) above. (3) To encourage or permit any person on the licensed premises to touch, cazess or fondle the breasts, buttocks, anus or genitals of any other person. {4) To permit any employee or person to wear or use any device or covering exposed to view which simulates the breast, genitals, anus, pubic hair or any portion thereof. (5) To permit any person to perform acts of or acts which simulate: a. With or upon another person sexual in- tercourse, sodomy, oral copulation, flag- ellation or any seaual acts which aze prohibited by law. b. Masturbation or bestiality. c. With or upon another person the touch- ing, cazessing or fondling on the but- tocks, anus, genitals or female breast. d. The displaying of the pubic hair, anus, vulva or female breast below the top of the azeola. (6) To permit any person to use artificial de- vices or inanimate objects to depict any of the prohibited activities described above. (7) To permit any person to remain in or upon the licensed premises who exposes to pub- lic view any portion of his or her genitals or anus. Supp. No. 30 2202 �� _--. � �� COURT OF APPEALS NUMBER CX-97-953 LICENSES (8) To permit the showing of films, still pic- tures, pictures, electronic reproductian or other visual reproductions depicting: a. Acts or simulated acts of se%ual inter- course, masturbation, sodomy, bestial- ity, oral copulation, $agellation or any seguai acts which are prohibited by law. b• Any person being touched, cazessed or fondled on the breast, buttocks, anus or genitals. c. Scenes wherein a person displays the vulva or the anus or the genitals. d. Scenes wherein artificial devices or in- animate objects are employed to de- pict, or drawings are employed to por- tray, any of the prohibited activities described above. (Code 1956, § 310.19) Sec. 410.06. R,estrictions on licenses. Where a reasonable basis is found by the coun- cil to impose reasonable restrictions upon a li- cense held under this chapter, the council, upon issuing a new license or renewing a license, may impose reasonable conditions and restrictions per- taining to the manner and circumstances in which the business shall be conducted to preserve the public peace and protect and promote good order and security. These reasonable conditions or re- strictions may pertain to: (1) A limitation as to the hours when nonin- tofficating malt liquor may be sold and/or consumed on the licensed premises; (2) A limitation and restriction as to the exact location within a building where nonintox- icating malt liquor will be served and/or sold andlor consumed• (3) Alimitation and restriction as to the means of ingress to or egress from the licensed es- tablishment; (4) A requirement that certain off-street park- ing faciLities be provided; (5) A condition that the license wiil be in effect only so long as the establishment remains primarily a restaurant; Supp. No. 30 2202.1 ♦ � ��v�� § 410.07 (6) A limitation and restrietion as ta the means and methods of advertising the sale of non- into�cating malt liquor on the building and/ or the premises adjacent thereto; (7) Reasonable conditions iimiting the opera- tion of the licensed premises so as to ensure that the licensed business will comport with the character of the district in which it is located and/or to the end that nuisances will be prevented. (Code 1956, § 31020(b); C.F. No. 95-479, § 2, 5-31- 95) Sec. 410.07. Transfer of license; change in service azea. (a) No license granted hereunder shall be trans- ferable from person to person or from place to place. I3o license granted for a specified part of any particular premises shall permit sales of such liquor on a part of such premises not specified in the license, or in an azea adjacent to such licensed premises; provided, however, that the lieense in- spector or his or her designee may waive this lim- itation and allow a temporary eatension of the liquor service area subject to the following criteria herein established by the city council. Failure to make a waiver and/or allow such a temporary eg- tension is not adverse action and does not require notice and hearing in the event of denial or inac- tion: tl) No such extension shall be for more than a continuous twenty-four-hour period and shall be valid oniy at times that liquor sales aze allowed by law; (2) No licensee shall receive more than tcvelve (12) such service estensions in any calen- daz yeaz; (3) The temporary extended sexvice azea can be either indoors or outdoors, but must be immediately adjacent to the licensed prem- ises; (4) All business operations on or in the tempo- rary extended service area shali be in com- pliance with all other requirements of state law and of this chapter, and in particular shall comply with the requirements of Chap- ter 293 of this Legislative Code ielating to noise; �� -`=� .� �: COURT OF APPEALS rIUMBER CX-97-953 LICEA'SES � § 411.03 or furnish or permit another who is leasing, rent- ing or using with or without consideration the li- censed premises to provide or furnish entertain- ment on the lieensed premises without firsthaving obtained a license to do so as hereinafter provid- ed. The provision or furnishing of entertainment without such a license, whether by the licensee or by persons using, renting or leasing the licensed premises, shall be grounds for adverse action against all the licenses held at and for the li- censed premises. It shall not be a defense in an adverse action against the licenses held at and for the licensed premises that the licensee was not awaze or did not know of the provision of such enterainment by persons renting, leasing or using the licensed premises. The license for each class of license provided for in this chapter is a sepazate license, and all the requirements of this chapter for obttuning a license must be met even though the licensee holds or has held a different class license hereunder. (b) Limit¢d entert¢inment Zicense. A person li- censed under Chapter 409 or Chapter 410 may obtain a limited Class A or B license without com- plying with the consent requirements under sec- tion 411.04(b) of this chapter, as further provided in section 411.04(b)(5), (b)(6) and (b)(7) below, and such license shall be limited to permitting anoth- er who is leasing, renting or using the licensed premises, with or without consideration, to pro- vide or furaish entertainment on the licensed premises for a wedding, anniversary or retire- ment dinner or reception, or similaz family or so- cial function. (c) Extended hours. T4�e holder of an extended service license under sections 409.07.1 or 410.04(c) of the Legislative Code is subject to the regula- tions defined therein and may provide entertain- ment during the hours of extended service, but only in conformity with and as authorized by an e�sting entertainment license issued under this chapter. Notwithstanding any other provision of law, the eouncil may, at any time and with respect to any estabiishment, condition or prohibit the provision of entertainment during the hours of er.tended service (i) in order to protect the public peace, welfare and safety, so long as such condi- tions or prohibitions do not relate to the content of Supp. No. 28 the entertainment, and (ii) without notice and hearing, or compliance with any of the procedures provided in Chapter 310 of the Legislative Code. (Code 1956, § 311.01; Qrd. No. 179�1, § 4,1-1492; Ord. No. 17924, § 1, 5-7-92; C.F. No. 92-1799, § 1, 12-22-92; C.F. No. 941660, § 1, 12-28-94) Sec. 411.02. License classification. Any person desiring to provide entertainment on the licensed premises must obtain an enter- tainment license of the applicable type as herein- after provided: Class A-Amplified or nonamplified music and/ or singing by one (1) to three (3) per- formers, and group singing participat- ed in by patrons of the establishment. Class B-All activities allowed in Class A, plus amplified or nonamplified music and/ or singing by perFormers without lim- itation as to number, and dancing by patrons to live, taped or electronically produced music, and which may also permit volleyball and broomball paz- ticipated in by patrons or guests of the licensed estabiishment plus stage shows, theater, and contests. In all of the activities in Classes A and B, all of the participants, including patrons, shall be fully clothed at all times. Class C-All activities aliowed in Classes A and B, plus performance by male or fe- male performers without limitation as to number, where ciothing is minimal but in compliance with Chapters 409.09 and 410.05 of the Legislative Code. (Code 1956, § 311.02; Ord. No. 17434, § 2, 2-3-87; Ord. No. 17633, § 2, 3-7-89; Ord. No. 17901, § 5, 1-14-92; C.F. No. 92-1799, § 1, 12-22-92; C.F. No. 94-1660, § 2, 12-28-94) Sec. 411.03. Fee. The annual license fees for Class A, B and C entertainment licenses shall be established by or- dinance as specified in section 310.09(b). (Code 1956, § 311.02; Ord. No. 17434, § 2, 2-3-87; Ord. No. 17633, § 2, 3-7-89; Ord. No. 17901, § 6, 1-14-92; C.F. No. 92-1799, § 1, 12-22-92; C.F. No. 94-1660, § 3, 12-28-94) 2202.3 97-yr7 ,,� � COURT OF APPEALS NUMBER CX-97-953 (b) Class II Zicenses. Vv'here an application for the grant, issuance or reneccal of a Class II license meets all the requirements of law, and there e�sts no ground for denial, revocation or suspen- sion of, or the imposition af conditions upon, such license, the director shall grant, issue or renew said license in accordance �sith the application. (c) Class I and Class II iicenses, if denied by direcfor. in the event the director, in the case of both Class I and Class II licenses, determines that the application for grant, issuance or re- newal of the license does not meet all the require- ments of law or that there effist grounds for denial, revocation, suspen;ion or other adverse action against the license or the licensee, the director shall recommend denial of the applica- tion and foliow the procedures for notice and hearing as set forth in secrion 310.05. (d) Class 777 Zicenses. (1) Grant, issuance or transfer. Upon receipt of a fully completed application and required fees for a Class III license, and after the investigation required, the director shall notify the council. A public hearing shall be held on the grant or issuance of all Class III licenses. In any case where the director recommends denial of the grant, issuance or renewal of a Class III iicense, br where the council believes that there is evidence which might result in action adverse to the original or renewal application, the direc- tor on his or her oticn initiative, or at the direction of the council, shall follow the pmcedures for notice and hearing as set forth in section 310.05. Where the applica- tion for the grant, issuance or renewal of a Class III license meets all the require- ments of law, and where there e�sts no ground for adverse action, the council shall by resolution directthat the director issue such license in accordance with law. (2) Renewal. The director shall in �criting no- tify the council, and the affected neighbor- hood organization(s) established for citizen participation purposes, at least sixty (60) days before the e�cpiration date of all Class III licenses. A public hearing on the re- newal of any such license shall not be held Supp. No. 33 � I LICEI.'SES �'�-- �//7 $ 310.05 eacept on the request of a councilmember, which request shall be incorporated in the form of a council resolution. Upon the pas- sage of such resolution, the director shall give written notice of such hearing to the affected neighborhood organizations. Such public hearing�does not repiace or amend any of the procedures set forth in section 310.Ob of the Legislative Code. If no re- quest for a public hearing is made before the espiration of any such license, and where there e�cists no ground for adverse action, the director shall issue the license in accordance with law. (e) Appeal; CZass I or Class II licenses. An appeal to the city council may be taken by any person aggrieved by the grant, issuance or re- newal of a Class I or Class II license; provided, however, that the appeal shall have been filed with the city clerk rvithin thirty (30) days after the action by the director. The only grounds for appeal shall be that there has been an error of law in the grant, issuance or renewal of the license. The appeal shall be in writing and shall set forth in particular the alleged errors of law. The council shall conduct a hearing on the appeal within thirty (30) days of the date of filing and shall notify the licensee and the appellant at least ten (10) days prior to the hearing date. T'he proce- dures set forth in section 310.05, insofaz as is practicable, shall apply to this hearing. Following the hearing, the council may aflirm or remand the matter to the inspector or director, or may reverse or place conditions upon the license based on the councii's determination that the decision was based on an error of law. The filing of an appeal shall not stay the issuance of the license. (fl No waiver by renewal. The renewal of any license, whether Class I, II or III, shall not be deemed to be a waiver of any past violations or of any grounds for imposition of adverse action against such license. (Code i956, § 510.04; Ord. No. 17455, § 1, 5-21-87; Ord. No. 17551, § 1, 4-19-88; C.F. No. 94-500, § 1, 7-6-94; C.F. No. 9b-473, § 3, 5-3i-95; C.F. No. 95-1517, 1-31-96) Sec. 310.05. Hearing procedures. (a) Aduerse action; notice and hearing require- ments. In any case _ where the council may or 2027 COURT OF APPEALS �� 9 �� y� 7 NUMBER CX-97-953 ¢ 330.05 LEGTSI.pTtVE CODE intends to consider anp adverse action,inciuding the revocatioa or suspension of a Iicense, the imposition of rnnditions upon a license, or the denial of an application for the grant, issuance or renewal of a license, or the disapproval of a license issued by the State of Minnesota, the applicant or licensee shall be givea notice and an oppoitunity to be heazd as pro��ded herein. The council may consider such adverse actions when recommended bq the inspector, by the director, by the director of any eaecutive depar�ent estab- lished pursuant to Chapter 9 of the Charter, by the city attomey or on its own initiatiae. (bj Notice. Ia each such case where adverse action is or �cill be considered by the council, the applicant or licensee shall have been notified in writing that adverse action may be t�ken against the license or application, and that he or she is entitled to a hearing before acHon is taken by the couacil. The notice shail be sen�ed or mailed a reasonable time before the hearing date, and shall state the piace, date and time of the hearing. The notice shall state the issues involved or grounds upon which the adverse action may be sought or based. The council may request that such written notice be prepazed and served or mailed by the inspector or by the city attomey. (c) Hearing. Where there is no dispute as to the facts underlying the violation or as to the facts establishing mitigating or aggravating circum_ stances, the hearing shall be field before the conncil. Othenvise the hearing shall be conducted before a hearing eaaminer appointed by the coun- cil or retained by contract with the city for that purpose. The applicaat or the licensee shall be provided an opportunity to present e�zdence and az'gument as weII as meet adverse testimony or evidence by reasonable C70SS-PTaminghOII and rebuttal evidence. The hearing eaaminer may in its discretion permit other interested persons the opportunity to present testimony or evidence or otherwise participate in such hearing. (c-1) Procedure; hearing ex¢miner. The hearing egaminer shall heaz all evidence as may be pre- sented on behalf of the city and Yhe applicant or licensee, and shall present to the council written findings of fact and conclusions of law, together with a recommendation for adverse action. The councit shall consider the evidence con- tained in the record, the hearing examiaer's rec- ommended findings of fact and conclusions, and shall not cansider any factuat testimony not pre- viously submitted to and considered by the hear- ing egaminer. After receipt of the hearing examiner's findings, conclusions, and recommen- dations, the council shall pro�zde the applicant or licensee an opportunity to present oral or written arguments alleging error on the part of the exam- iner in the application of the law or interpretation of the facts, and to present argumeat related to the recommended adverse action. IIpon conclu- sion of that hearing, and after considering the record, the eacaminer's findings and recommenda- tions, together with such additional azguments presented at the hearing, the council shall deter- mine what, if any, adverse action shall be taken, which action shall be by resolution. The council may accept, reject or modify the findings, conclu- sions and zecommendations of the hearing exam- ine:: (c-2) Ex-parte contacts. If a license mattez has been scheduled foz an adverse hearing, council members shall not discuss the license matter K�ith each other or with any of the parties or interested persons involved in the matter uniess such dis- cussion occurs on the record during the hearings of the matter or during the council's final deliber- ations of the matter. No interested person shall, with knowledge that a license matter has been scheduled for adverse hearing, convey or attempt ta convey, oraIly or in writing, any inf'ormation, argument or opinion about the matter, or any issue in the matter, to a council member or his or her staff untii the council has taken finai action on the matter, provided, however, that nothing herein shall prevent an inquiry or communica- tions regazding status, scheduling or procedures concerning a license matter. An interested person, for the purpose of this paragraph, shall mean and include a person who is an officer or employee of the licensee which is the subject of the scheduled adverse hearing, or a persoa who has a financial interestin such licensee. (d) Licensee or applicant may be represented. The licensee or applicant may represent himself " or choose to be represented by another. �� Supp. No. 33 2028 µ;� COURT OF APPEALS NUMBER CX-97-953 i 97-yi7 LICENSFS (e) Recor� evidence. The hearing eaaminer shall receive and keep a record of such proceedings, including testimony and exlubits, and shall re- ceive and give weight to e��idence, including heaz- say evidence, which possesses probative calue com- monly accepted by reasonable and prudent persons in the conduct of their a$'airs. (fl Council action, resolution to contain fxnd- ings. Where the council takes adverse acfion with respect to a license, licensee or applicant for a license, the resolution by which such action is tak- en shall contain its findings and determination, including the imposition of conditions, if any. The council may adopt all or part of the findings, con- clusions and recommendations of the hearing ex- aminer, and incorporate the same in its resolution taking the adverse action. (g) Additional procedures where mquirnd. Where the provisions of any statute or ordinance require additional notice or hearing procedures, such pro- visions shall be complied with and shall super- sede inconsistent provisions of these chapters. This shall include, without limitation by reason of this specific reference, Minnesota Statutes, Chapter 364 and Minnesota Statutes, Section 340A.415. (h) Discretion to hear notwithstanding with- drawal or surrender of application or Zicense. The council may, at its discretion, conduct a hearing or direct that a hearing be held regazding revocation or denial of a license, notwithstanding that the applicant or licensee has attempted or purQorted to withdraw or surrender said license or applica- tion, if the attempted withdrawai or surrender took place aftzr the applicant or licensee had been notified of the hearing and potential adcerse ac- tion. (i) Continuanc¢s. 4�'here a hearing for the pur- pose of considering revocation or suspension of a license or other disciplinary action involcing a li- cense has been scheduled before the council, a continuation of the hearing may be granted by the council president or by the council at the request of the licensee, license applicant, an intsrested person or an attorney representing the foregoing, upon a showing of good cause by the party making the request. Supp. I3o. 30 2029 § 310.05 (j) If the council imposes an adverse action as deSned in section 310.01 above, a generic notice of such action shall be prepazed by the license in- spector and posted hy the licensee so as to be vis- ible to the public during the effective period of the adverse action. The licensee shall be responsible for taking reasonable steps to make sure the no- tice remains posted on the front door of the li- censed premises, and failure to take such reason- able precautions may be grounds for further adverse action. (k) Imposition of costs. The council may impose upon any licensee or license applicant some or all of the costs of a contested hearing before an inde- pendent hearing examiner. Ttie costs of a contest- ed hearing include, but aze not limited to, the cost of the administrative law judge or independent hearing examiner, stenographic and recording costs, copying costs, city staff and attomey time for which adequate records have been kept, rental of rooms and equipment necessary for the hear- ing, and the cost of expert witnesses. The council may impose all or part of such costs in any given case if (i) the position, claim or defense of the licensee or applicant was frivolous, azbitrary or capricious, made in bad faith, or made for the pur- pose of delay or harassment; (ii) the nature of the violation was serious, or involved violence or the threat of violence by the licensee or empioyees thereof, or involved the sale of drugs by the lic- ensee or employees thereof, and/or the circum- stances under which the violation cecurred were aggravated and serious; (iii) the violation created a serious danger to the pubiic health, safety or welfare; (iv) the violation involved unreasonable risk of harm to vulnerable persons, or to persons for whose safety the licensee or applicant is or was responsibie; (v) the appiicant or licensee was sufficiently in control of the situation and there- fore could have reasonably avoided the violation, such as but not lunited to, the nonpayment of a required fee or the failure to renew required in- surance policies; (vi) the violation is covered by the matrix in section 409.26 of the Legisiative Code; or (�zi) the violation involved the sale of cigarettes to a minor. (1) Imposition of fines. Tlie council may unpose a fine upon any licensee or license appiicant as an adverse license action. A fine may be in such. COURT OF APPEALS ,^ 9 7—� L{ )� NUNIBER CX-97-953 � § 310.05 LEGISL�.T'IVE CODE amount as the couacil deems reasonable aad ap- propriate, having in mind the zegulatory and en- forcement purposes embodied in the particuiar li- censing ordinance. A fine may be ia addition to or in lieu of other adverse action in the sole discre- tion of the council. To the extent any other pro��i- sion of the Legislative Code pro�zdes for the im- position of a fine, bo£h provisions shall be read together to the extent possible; provided, howev- er, that ia the case of any con$ict or inconsistency, the other provision shall be controlling. (Code 1956, § 510.05; Ord. No.17551, § 2, 419-58; Ord. No. 17559, §§ 1, 2, 5-17-88; Ord. ?�o. 17659, § 1, 6-13-89; Ord. No. 17911, § 1, 3-10.92; C.F. No. 94-46, § 7, 2-2-94; C.F. No. 94-898, y�§ 2, 3, 7-13-94; C.F. No. 94-1340, § 2, 10-19-94; C.F. ?�o. 95-473, § 4, 5-31-95) Sec. 310.06. Revocation; suspension; adverse actions; imposition of condi- tions. (a) Council may take adverse action. T'he coun- cil is authorized to take adverse action, as defiaed in section 310.01 above, against any or all licenses or permits, licensee or applicant for a license, as provided in and by these chapters. Adverse ac- tions against entP*+��*+n+ent licenses issued under Chapter 411 of the Legislative Code may be initi- ated for the reasons set forth in subsection (b) below, or upon aay lawful grounds which are com- municated to the license holder in writing prior to the hearing before the council. Such actions shall be initiated and carried out in accordance with the procedures outline in section 310.05; provid- ed, however, that the formal notace ofhearing shall be used to initiate the adverse action without the use of prior procedural steps. (b) Basis for action. Such adverse action may be based on one (1) or more of the following rea- sons, which are in addition to any other reason specifically provided by law or in these chapters: (1) The license or permit was procured by mis- representation of material facts, fraud, de- ceit or bad faith. (2) The applicant or one (1) acting in his or her behalf made oral or written misstatements or misrepresentations of material facts in or accompanying the applicatitrn. (3) The license was issued in violatioa of any of the pro�zsions of the Zoning Code, or the premises which are licensed or which are to be licensed do not comply vcith applicable heatth, housing, fire, zoning and building codes and regulations. (4) The license or permit was issued in viola- tion of law, wzthout authority, or under a material mistake of fact. (5) The licensee or applicant has failed to com- ply with any condition set forth in the li- cense, or set forth in the resolution grant- ing or renewing the license. (6) a. 1`he licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has violated, or performed any act which is a violation of, any of the provisioas of these chapters or of any statute, ordi_ nance oz regulation reasonably related to the licensed activ'sty, regazdless of whether criminal charges have or have not been broughtin connection there- with; b. The licensee or applicant has been con- victed of a crime that may disqualify said applicant from holding the license in question under the standards and procedures in Minnesota Statutes Chapter 364; or c. The licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has engaged in or permitted a pattern or practice of conduct of faiIure to comply with laws reasonably related to the li- censed activity or from which an inf'er- ence of lack of fitness or good character may be drawn. (7) The activities of the licensee in the licensed activity created or have created a serious danger to the public health, safety or wei- faze, or the licensee performs or has per- formed his or her work or activity in an unsafe manner. (8) The licensed business, or the way in which such business is operated, maintains or per-_ .� .'•�� Supp. No. 30 2030 COURT OF APPEALS NUMBER CX-97-953 § 310.05 LEGISLATIVE CODE amount as the council deems reasonable and ap- propriate, having in mind the regulatory and ea- forcement purposes embodied ia the particulaz li- eensing ordinance. A fine may be in addition to or in lieu of other adverse action in the sole discre- tion of the council. To the extent any other provi- sion of the Legislative Code pro�-ides for the im- position of a fine, both pruvisions shall be read together to the extent possible; pro�ided, howev- er, that in the case of any conflict or inconsistency, the other provision shall be controlling. (Code 1956, § 510.05; Ord. No.17551, § 2, 419-88; Ord. No. 17559, §§ 1, 2, 5-17-88; Ord. No. 17659, § 1, 6-13-89; Ord. No. 17911, § 1, 3-10-92; C.F. ?�70. 9446, § 7, 2-2-94; C.F No. 94-696, §§ 2, 3, 7-13-94; C.F. No. 94134Q § 2, 10-19-94; C.E \o. 95-473, § 4, 5-31-95) Sec. 320.06. Revocation; suspension; adverse actions; imposition of condi- t10IIS. (a) Council may take adverse action. The coun- cil is authorized to take adverse action, as defined in section 310.01 above, against any or all licenses ar permits, licensee or applicant for a license, as provided ia and by these chapters. Adverse ac- tions against entertainment lirenses issued ander Chapter 411 of the Legislative Code may be initi- ated for the reasons set forth in subsection (b) below, or upon any lawful grounds which aze com- municated to the license holder in Fcriting prior to the hearing before the council. Such actions shall be initiated and carried out in accordance with the procedures outline in section 310.05; pro��id- ed, however, that the formal notice ofhearing shall be used to initiate the adverse action vrithout the use of prior procedural steps. (h) Basis for ¢ction. Such adverse action may be based on one (1) or more of the fo2Jowing rea- sons, which aze in addition to any other reason specifically provided by law or in these chapters: (1) The license or permit vc�as procured by mis- representation of material facts, fraud, de- ceit or bad faith. (2) The applicant or one (1) acting in his or her behalf made oral or written misstatements or misrepresentations of material facts in or accompanying the application. I y7- y� � (3) The license was issued ia violatioa of any of the provisions of the Zoning Code, or the premises which aze licensed or which aze to be licensed do not comply with applicable health, housing, fire, zoning and building codes and regulations. (4? The license or permit was issued in viola- tion of law, without authority, or under a material mistake of fact. (3) The licensee or applicant has failed to com- ply with any condition set forth in the li- cense, or set forth in the resolution grant- ing or renewing the license. (6) a. T'he licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has violated, or performed any act which is a ti�iolatioa of, any of the provisions of these chapters or of any statute, ordi- nance or regulation reasonably related to the licensed activity, regazdless of whether criminal chazges have or have not been brought in connection there- with; b. The licensee or applicant has been con- victed of a crime that may disqualify said applicant from holding the license in question under the standards and procedures in Mianesota Statutes Chapter 364; or c. The licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has engaged ia or germitted a pattern or practice of conduct of failure to comply with laws reasonably related to the li- censed activity or from which an infer- ence of lack of fitness oz good character may be drawn. (7) The activities of the licensee in the licensed activity created or have created a serious danger to the public health, safety or wel- faze, or the licensee performs or has per- formed his or her work or activity in an unsafe manner. (8) The licensed business, or the way in wliich such business is operated, maintains or per- :=':�. '� : Supp. No. 30 2030 ,� .: :^;`, :,`-:: �::,� COURT OF APPEALS NUMBER CX-97-953 (10 (11) � � 9�-yi7 LICENSES mits conditions that unreasonably annoy, injure or endanger the safety, health, mor- als, comfort or repose of any considerable number of inembers of the public. (9) Failure to keep sideccallcs or pedestrian ways reasonably free of snow and ice as required under Chapter 114 of the Saint �aul Leg- islative Code. ) The licensee or applicant has shou 6y past misconduct or unfair acts or dealings: phys- ical abuse, assaults or violent actions done to others, including, but not limited to, ac- tions meeting the definition of criminal sex- ual conduct pursuant to ?VIinnesota Stat- utes Sections 609.342 through 609.3451; sexual abuse, physical abuse or maltreat- ment of a child as defined in Minnecota Stat- utes Section 626.556, subdivisions 2 and 10e, inciuding, but not limited to, acts which con- stitute a violation of'�SSinnesota Statutes Sec- tions 609.02, subdivision 10; 609.321 through 6Q9.3451; or 617246; neglect or en- dangerment of a child as defined in ?VIinne- sota Statutes Section 826.5b7, subdivision 2; the manufacture, distribution, sale, gift, delivery, transportation, eschange or baz- ter of a controlled substance as defined in Minnesota Statutes Chapter 152;the pos- session of a controlled substance as defined in Minnesota Statutes Chapter 152 in such quantities or under circumstances giving rise to a reasonable inference that the pos- session was for the purpose of sale or dis- tribution to others; or by the abuse of alca hol or other drugs, that such licensee or applicant is not a person of the good moral character or fitness required to engage in a licensed activity, business or profession. The licensee or applicant has materially changed or permitted a material change in the design,construction or configuration of the licensed premises ccithout the prior ap- provai of the city council in the case of Class III licenses, the director in the case of Class II licenses, and the incpector in the case of Class I licenses, or without first ha��ing ob- tained the proper building permits from the city. , Supp. ?Jo. 30 2031 § 310.06 (12) The licensee or applicant has violated seo- tion 294.01 of the Legislative Code, or has made or attempted to make a prohibited ex parte contact with a council member as pro- vided in section 310.05(c-2) of the Legisla- tive Code. 'I`he terms "licensee" or "applicant" for the pur- pose of this section shall mean and include any person who has any interest, whether as a holder of more than five (5) percent of the stock of a cor- poration, as a partner, or othercvise, in the prem- ises or in the business or activity which aze li- censed or proposed to be licensed. With respect to any license for activities entitled to the pmtection of the FirstAmendment, notwith- standing the foregoing provisions, neither the lack of good moral character or fitness of the licensee or applicant nor the content of the protected speech or matter shall be the basis for adverse action against the license or application. (c) Imposition of rnasonable conditions and/or restrictions. When a reasonable basis is found to impose reasonable conditions andlor restrictions upon a license issued or held under these chap- ters, any one (1) or more such reasonable condi- tions and/or restrictions may be imposed upon such license for the purpose ofpromotingpublic health, safety and welfaze, of advancing the public peace and the elimination of conditions or actions that constitute a nuisance or a detriment to the peace- ful enjoyment of urban life, or promoting security and safety in neazby neighborhoods. Such reason- able conditions and/or restrictions may include or pertain to, but are not limited to: (1) A limitation on the hours of operation of the licensed business or establishment, or on particulaz types of activities conducted in or on said business or establishment; (2) A limitation or restriction as to the location within the licensed business or estabiish- ment whose [sic] particular type of activi- ties may be conducted; (3) A limitation as to the means of ingress or egress from the licensed establishment or its paziflng lot or immediately adjacent area; (4) A requirement to provide off-street pazking in excess of other requirements of law; ° COURT OF APpEALS NUMBER CX-97-953 $ 310.06 i LEGISL9TIVE CODE (5) A limitation on the manner and means of advertising the operation or merchandise of the licensed establishment; C6) Any otfier reasonable condition or restrio- tion limiting the operation of the licensed business or establishment to ensure that the businesS or establishment wi11 hazmo- nize with the character ofthe azea in �rhich it is located, or to prevent the development or continuation of a nuisance. The inspector may impose such conditions on Class I licenses with the consent of the license holder, or may recommend the imposition of such conditions as an adverse action against the license or licens- es; the inspector has the same po�cer �ith respect to Class II licenses. The council may impose such conditions on Class III licenses �rith the consent of the license holder, or upon any class of ]icense as an adverse action against the license or licens- es follocving notice and hearing as may be re- quired. Such conditions may be imposed on a li- cense or licenses vpon issuance or renecral thereof, or upon and as part of any adverse action against a license or licenses,including suspension. Con- �litions imposed on a license or licenses shall re- maia oa such licenses when renewed and shaIl �°ntinue the�'eafter until removed by the council in the case of conditions on Class III licenses or conditions imposed by adverse action, aad by the �P�or in the case of Class I and II licenses. ' (d) Standards for multiple Zicense determinQ_ t��+- In any case in which the council is autho- rized to take adverse action against less than all of the licenses heid by a licensee, or appIied for by � applicant, the following staadards may be used: (1) The nature and gravity ofthe grounds found by the council to exist upon which the ad- verse action wotild be based; (2) The policy andlor regulatory goals for the particulaz licenses involved, either as em- bodied in the Legislative Gode or as found and determined by the council; �3) The interrelationship of the licenses and their relative importance to the overall busi- ness enterprise of the licensee or applicant; (4) The management practices of the licensee or appiicant e�ith respect to each of such licenses; . (5) The eatent to which adverse action against less thaa all of the licenses or applicatians would result in difficulty in enforciag and monitoring the adverse action taken; (6) The hazdship to the licensee or applicant that would be caused by applying adverse action'to all licenses or applications; and (7) The hazdship and/or danger to the public, or to the public health and welfare, thst would result from adverse action against less than all of the licenses or applications. (Gode 1956, § 510.06; Ord. No.17584, § 1, 8-25-8g; Ord. ?�*o. 17657, § 15, 6-8-89; Ord. No. 17659, § 2, 6-13-89; Ord. No.179�1, §§ 2, 3,1-1492; Ord. No. 17917, §§ 2, 3, 3-31-92; Ord. No. 17922, § 2, •!-Zg_ 92; C.F. No. 94500, § 3, 7-6-94; C.F. No. 941340, § 3, 10.19-94; C.E No. 95-473, § 5, 5-31-95) Sec. 310.07. Terminatioa of licenses; surety bonds; insurance contracts. (a) Automatic termin¢tion, reinstatement; r¢_ sponsibility of Zicensee. AA licenses orpermits which must, by the provisions of these chapters or other ordinances or laws, be accompanied by the filing and maintenance of insurance policies, deposits, guarantees, bonds or certifications shall automat- ical2y terminate oa cancellation oz withdra�yai o{ said policies, deposits, bonds or certifications. No Iieensee may continue to operate or perform the licensed activity after such termination. The lic- ensee is liable and responsible for the filing and ma�ntenance of such policies, deposits, guaraa_ tees, bonds or ceriifications as are required in these chapters, and shall not be entitled to assert the acts or omissions of agents, brokers, employees, attorneys or any other persoas as a defense or justification foz failure to comply with such filing and maintenance requirements. In the event the licensee reinstates and files such policies, depos- its, bonds or certifications within thirty (30) days, 2he license is automatically reinstated on the same *srms and conditions, and for the same period as origina.Ily issued. After thirty (30} days, the appli- cant must reapply for a renewal of his license as though it were an original application. (b) Bonds and insurance requirements: (1) Surety Companies: All surety bonds run- ning to the City of Saint Paul shali be writ- �� .,� : �;;.i Supp. ?�;o. 30 2�32 9�-y/� If you need additional information or have any questions regarding this request, please do not hesitate to call me at 266-8776. Thank you. Sincerel , : J� �� Peter P. Pangbom Pazategal . t((�.E� f ^� g .< Presented By Council File # (�� Green Sheet # �� RESOLUTION CITY OF SAINT PAUL, MINNESOTA �G Referred To � Committee: Date 1 � 2 3 4 5 WHEREAS, the City of Saint Paul, O�ce of License, Inspections and Environmental 6 Protection brought an adverse action against the licenses held by E& K Corporation d/b/a 7 Checker's Nite Club, for the premises located at 1066 East 7th Street, alleging a violation of 8 their Entertainment Class B license; and 9 10 WHEREAS, on.or about December 10, 1996 the licensee was duly notified that a 11 hearing had been scheduled before an Administrative Law Judge on January 6, 1997; and 12 13 WHEREAS, the licensee did not appeaz at the January 6, 1997 heazing and the 14 Administrative Law Judge declazed the licensee to be in default and took the matter under 15 advisement on the e�ibits presented by the City; and 16 17 WHEREAS, the Findings of Fact, Conclusions and Recommendation of the 18 Administrative Law Judge dated Februazy 13, 1997 were served on the Councii of the City of 19 Saint Paui, with copies sent to the licensee; and 20 21 WHEREAS, a public hearing was held on April 2, 1997 to consider the 22 Recommendation, at which time the licensee did appeaz and presented testimony in opposition 23 to the Findings and Conclusions of the Administrative Law Judge; NOW, THEREFORE BE 24 IT 25 26 RESOLVED, that the City Councii of the City of Saint Paul, after due deliberation 27 based upon all the files, records and proceedings herein, including the documents and exhibits 28 submitted to the Administrative Law Judge, the Findings of Fact, Conclusions and 29 Recommendation issued subsequent thereto, and the arguments of the licensee at the public 30 hearing, does hereby adopt and incorporate herein by reference the Findings of Fact and 31 Conclusions of the Administrative Law Judge. 32 33 FURTHER I2ESOLVED, that the Recommendation is amended to reflect the 34 Council's discussion of the seriousness of the violation, and the licensee is hereby ordered to 35 pay a fine of Three Thousand Dollazs ($3,000) within thirry (30) days of the adoption of this 36 resolution. 37 38 FURTFIER RESOLVED, that licensee shall pay the costs of the hearing before the 39 administrative law judge based upon the determination that the defense of the Licensee in this 40 matter was frivolous, arbitrary and capricious. 41 ��- �i > STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 February 13, 1997 City Clerk Saint Paul City Council 386 City Hall 15 West Kellogg Blvd. Saint Pau1, Minnesota 55102 Re: The Licenses held by E. & K. Corporation, dJb/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota File No. 80-2111-10861-6 Dear City Clerk: Enclosed for service upon the Saint Paul City Council are the Findings of Fact, Conclusions of Law and Recommendation for the above-referenced matter. A copy of this Report has also been served this day on Virginia Palmer of the Office of the City Attorney and Walter Englehardt on behalP of the licensee. Sincerely, ! 'ta A. McConnell inistrative Law Judge cc: Ms. Virginia Palmer Mr. Walter Engelhardt Providing Impartal Hearings for Government and Citizens An Equal Opport Employ Administrative Law Section & Administrative Services (8}2) 341-7600 � TDD No. (612) 3A1-7346 � Fax No. (612) 348-2665 9�- �i� STATE OF MINiVESOTA OFFIC.E OFADMINiSTRATR'E HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 9 February 13, 1997 Ms. Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Rellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Ralis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 Re: The Licenses of E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota File No. 80-2111-10861-6 Dear Ms. Palmer and Gentlemen: Enclosed for service upon you please find a copy of the Findings o£ Fact, Conclusions of Law and Recommendation in the above-captioned matter. A copy has also been served this day upon the City Clerk. Sincerely, / / � ( 1�� ita A. McConnell Administrative Law Judge yCC: City Clerk Providmg Impartiai Neanngc for Government and Q6z.ens An Equal Opportunity Employer Adinu�istiatioe Law gection & Adnnnistrativ? Servic?s !>�2! ?4'I. i �00 • TDD No (612) 341-7346 � Fax fJo (512) 349-2F>65 9 7- �/� 7 STATE O�' MINNESOTA OFFICE OF ADMINISTRATIi7E HEARINGS FOR THE CITY OF SAINT PAUL In re the Licenses held by E. & R. Corporation, d/b/a Checker's 23ite Club 1066 7th Street East, Saint Paul, Minnesota 80-2111-10861-6 FINDINGS OF FACT CONCLUSIONS OF LAW AL3D RECOMI�NDATIOI3 The above-entitled matter came on for hearing before Administrative Law Judge Rita A. McConnell on January 6, 1997 at 9:30 a:m., in Room 1503, Saint Paul City Hall Annex, 25 West 4th Street, Saint Paul, Minnesota, 55102. The record closed on January 6 at the close of the hearing. Virginia D. Palmer, Assistant City Attorney, appeared on behal£ of the City of Saint Pau1, Of£ice of License, Inspections and Environmental Protection (LIEP). No representative appeared on behalf of the license holder. Notice is hereby given that this Report is a recommendation only and not a final decision. The Saint Paul City Council will make the final decision. After a review of the record, it may adopt, reject, or modify the Findings of Fact and Recommendations contained herein. Pursuant to Saint Paul Legislative Code Section 310.05, the City Council will provide each party adversely affected by this Report to present oral or written argument alleging error in this Report and present arguments to the Council related to any recommended adverse action. Parties should contact the City Clerk, Saint Paul City Council, 386 City Hall, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. 9�-�� STATEMENT OF ISSUES 6 1. Whether licensee permitted sexual acts or conduct on the licensed premises in violation of Section 410.05 0£ the Saint Paul I,egislative Code. 2. Whether licensee provided on the licensed premises entertainment that is permitted only under a Class C license. 3. Whether licensee should be assessed the costs of the contested hearing on the grounds the licensee's de£ense was frivolous, arbitrary or capricious. Based upon all the files, records and proceedings herein, the Administrative Law Judge makes the £oliowing: FINDINGS OF FACT 1. Licensee E. & R. Corporation (Licensee) holds a variety o£ licenses for the business it operates as Checkers Nite Club at 1066 7th Street East in Saint Paul. Included in those licenses is a Class B Entertainment license. The premises is licensed for 150 seats. City's Exhibit No. 2. 2. On October 4, 1996, Saint Paul Police Officers Dean Roehnen and Kenneth Jensen £iled Police Reports indicating they were dispatched to Checkezs Nite Club in the early hours of October 4 where they observed a male employee of the Club dancing in briefs or underwear. Officer Jensen's report indicated the dancer's genitals were exposed and that a patron had his hand on or near the genitals during the dance. City's Exhibit No. 1. 3. By letter dated October 25, 1996, Assistant City Attorney Virginia Palmer notified the Licensee that the conduct described above violated the Saint Paul Legislative Code and formed the basis for adverse action against the licenses. City's Exhibit No. 3. � 9�-yi) 4. On November 4, 1995, Liceasee through its stockholder Walter Englehardt responded to the Palmer's letter. In that response, Englehardt stated as follows: _ This is what the Of£icer saw when he walked into the bar. The male dancer for the night was wearing a pair of Calvin Rlein boxer shorts, under the boxer shorts the dancer was wearing a gold almost flesh colored T-back. (This is something like a jock strap with the front and rear covered.) The officer observed a white male dancer with his shorts pulled down, the o£ficer did not see the T-back and assumed the genitals were exposed. City's Exhibit No. 4. 5: In response to Englehardt's letter, Palmer advised the Licensee that the conduct admitted in the letter was not permitted under an Entertainment Class B license and offered Licensee the option of proceeding to an administrative hearing or resolving the matter short of a hearing. City's Exhibit No. 5. 6. LiCensee did not respond to Palmer's Novembez 20 letter. Accordingly, on December 10, 1996, Palmer sent Licensee a notice of the hearing held on January 6, 1997. City's Exhibit No. 6. 7. The license fee for a Class C Entertainment License is $1,600.00. The fee paid by Licensee for a Class B Entertainment License was $500.00 8. Neither Walter Engelhardt nor any other representative appeared on behalf of the Licensee at the scheduled hearing. Based upon the foregoing, the Administrative Law Judge makes the following: CONCLUSIONS 1. The Administrative Law Judge City Council have jurisdiction in this and the Saint Paul matter pursuant to 3 9�-yr`� Minn. Stat. Section 14.50 and Saint Paul Legislative Code Sections 310.05 and 310.06. The Licensee received timely and proper notice of the hearing of this matter. _ 2. The Saint Paul Legislative Code provides for adverse action against a licensee i£ a licensee fails to comply with any condition set forth in the license, or if the licensee violates a provision of the Code. Saint Paul Legislative Code Section 310.06(b)(5) and (6). 3. Under a Class B Entertainment license, the Licensee is authorized to provide entertainment in which "all o£ the participants...[are} fully clothed at all times." Saint Paul Legislative Code Sec. 411.02, Class B. In order to provide entertainment which includes performers who are not fully clothed, Licensee is required to obtain a Class C license which permits clothing that is "minimal but in compliance with Chapters 409.09 and 410.05 of the Legislative Code." Saint Paul Legislative Code Sec. 411.02, Class C. 4. Saint Paul Legislative Code Section 410.05 contains several sections which prohibit the exposure of genitals by employees or patrons on licensed premises, including section (1) which prohibits the "employ...[of] any person in the sale or service of alcoholic beverages in or upon the licensed premises while such person is unclothed or in such attire, costume or clothing as to expose to view any portion of the ... genitals." 5. The Licensee is in default herein under Minn. Rule 1400.6000 as a result of its failure to make an appearance at the heazing. 6. Pursuant to Minn. Rule 1400.6000, the allegations set out in the Notice and Order for Hearing may be taken as true and deemed proved without further evidence when a party defaults. 7. The City has established that the Licensee provided entertainment in which the participants were not fully 4 9� clothed in violation of the conditions oE a Class B Entertainment license. 8. The violation of the conditions of the Class B = license was intentional and witflout regard to the limitations on that category of license as set £orth in the Saint Paul Legislative Code. 9. The defense of the Licensee in this matter was frivolous, arbitrary and capricious, justifying the 1lIl position of the costs of the hearing on Licensee. Based upon the foregoing Conclusions, the Administrative Law Judge makes the £ollowing: RECOMMENDATION IT IS HEREBY RECOMMEENDED that the Saint Paul City Council take adverse action against the licenses of E. & R� Corporation by assessing a fi e in the amount of ^�-Thre-e- 3, coo, ou Thousand ^; �,� '• "^' , "-"' ( � and requiring the licensee to pay the costs of the administrative hearing. " Dated this 13th day of k'ebruary, 1997. �� l[,� ` � it� A. McConnell )� � n I\ A nistrative Law Judge � (�/ cl- C1 r Reported: Taped, not transczibed. NOTICE The Saint Paul City Council is requested to serve a copy of its final decision upon the Administrative Law Judge as well as the parties by £irst class mail. 5 q�-�� MEMORANDUM The allegations set forth by the City in its Notice of Hearing establish�a violation of that Section of the Saint Paul Legislative Code ("the Code") which prohibits certain sexual conduct on licensed premises. Since the Licensee did not appear at the hearing, these allegations may be taken as true. The Licensee did, however, respond to the allegations in writing prior to the hearing, establishing a basis for its defense in this matter. In addition, the police officers who allegedly observed the prohibited conduct also £ailed to appear at the hearing. Consequently, the record alone does not establish a violation of Section 410.05 of the Code. The facts which are accepted as true are those admitted in the letter from Licensee's representative. The letter's description of the dancer's costume indicates the dancer was wearing a flesh colored jock strap, and was dancing with his boxer shorts pulled down. From this description, it is reasonable to conclude that the dancers was 'not "fully clothed," but was rather wearing "minimal" clothing during the entertainment. Such costuming is permitted only with a Ciass C license under Section 411.02 of the Code. Providing such entertainment with only a C1ass B license is a violation of the conditions in the license and the provisions of Section 411.02. The City Council is permitted to impose a fine upon the licensee in an amount it deems reasonable and appropriate under the circumstances. Saint Paul Legislative Code Section 310.05(1). The Code sets forth certain presumptive penalties £or Code violations by on-sale licensed premises. The council is allowed to deviate from those penalties "where the council £inds and determines that there exist substantial and compelling reasons making it more [� �'7-4i7 appropriate to do so.° Saint Paul Legislative Code Sec. 409.26. The Code does not specify a presumptive penalty for the - type of violation at issue in this matter. It does, however, indicate that a fine of $1,500.00 is presumptively appropriate for a£irst violation by a licensed premises with a seating capacity of 150. LIEP argues this penalty is insuf£icient since the Licensee already saved $1100.00 in licensing fees by paying for a Class B rather than a Class C license. In order to penalize Licensee for this violation, LIEP suggests the assessment of a$2,000.00 fine. Although the evidence supports the conclusion that Licensee disregarded the restrictions on its license, that disregard does not appear so flagrant as to justify imposition of a penalty in the amount requested. LIEP's request overlooks the $500.00 already paid by the Licensee for the Class B license. If the presumptive penalty is imposed, the Licensee will pay the City a total of $2,000.00, thereby incurring expenses of $400.00 beyond the amount it would have paid for an appropriate license. This amount, together with the imposition of the hearing costs, is a sufficient penalty in light of the violation. R.A.M. 7 97-- �,r� � STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 1Q� Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 March 21, 1997 Fred Owusu City Clerk 1Z0 City Hall 15 W. Kellogg Blvd. St. Pauf, MN 55102 Re: In the Matter of the License heid by E& K Corporation d/bla Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota ; OAH Docket No. 80-2111-10861-6 Dear Mr. Owusu: On February 13, 1997, Administrative Law Judge McConnefi. Served the Findings of Fact, Conclusions and Recommendation in the above-entitled matter. Enclosed is the official record, inciuding a copy of the tape.recording of the hearing. If Our file in this matter is now being closed. Very truly yours, �� Ll�/� %�� , �'io�-�� i N�ncy M. Thomas Docket Clerk Telephone: 612l341-7615 NT Enc. Providing Impartial Hearings for Government and Citizens An Equal Opp dkiini ty Empioy Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 9 �- yi7 AFFIDAVIT OF SERVICE BY MAIL Rita A. McConnell, of the City of St. Paul, County of Ramsey, in the State of Minnesota, being duly sworn, states that on the 13th day of February, 1997, she served the annexed Findings of Fact, Conclusions of Law and Recommendation, upon the individuals named below by mailing to them a copy thezeof, enclosed in an envelope, postage prepaid, and by depositing same in the U.S. Mail at Saint Paul, Minnesota as £ollows: Ms. Virginia D. Palmer Assistant City Attorney 400 Gity Hall 15 West Kellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Kalis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 City Clerk Saint Paul City Council 386 City Hall 15 west Kellogg Blvd. Saint Paul, MN 55102 FURTHER AFFIANT SAYETH NOT. �C�.�-P� a.ta A. McConnell Subscribed sworn to befo e me �� day o£ February, 1997. No ary u lic ..rr..«�..«..�.... � STEVEN F. NkATTAINI NOTpflY PUBLIC -MINNESOTA RAMSEY CAUN7Y �hCmm�nwa��m�.2oao STATE OF n'IINNESOTA OFFICE OFADM17INISTRAT[VE IIEARINGS 100 Washington Square, Suite ]700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 /%� � February 13, 1997 Ms. Virginia D. Palmer Assistant City Attorney 400 City Hall 15 47est Kellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Kalis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 Re: The Licenses of E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota File No. 80-2111-10861-6 Dear Ms. Palmer and Gentlemen: Enclosed for service upon you Findings of Fact, Conclusions the above-captioned matter. A this day upon the City Clerk. cc: City Clerk please find a copy of the of Law and Recommendation in copy has also been served Sincerely, , = __ ��ry2�� ita A. McConnell Administrative Law Judge � 7- y� i Providing Impartial Hearings for Government and Citizens An Eq�a Opportu Employer Adminicpa�we Lew Sechon & Ad�ninistraUve Serviros (f 12! 341-7500 � TDD No (6121 341-7346 • Faz IJo (612) 349-2665 STATE OF n'IINNESOTA ❑FFICE OF ADMINISTRATTVE IIEARINCS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 �� , 9�-yf� February 13, 1997 City Clerk Saint Paul City Council 386 City Hall 15 west Kellogg Blvd. Saint Paul, Minnesota 55102 Re: The Licenses held by E. & K. Corporation, d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota File No. 80-2111-10861-6 Dear City Clerk: Enclosed for service upon the Saint Paul City Council are the Findings of Fact, Conclusions of Law and Recommendation for the above-referenced matter. A copy of this Report has also been served this day on Virginia Palmer of the Office of the City Attorney and Walter Englehardt on behalf of the licensee. Sincere�y, - �%��-� �-�� ' � ,.�-;, ftYta A. McConnell Administrative Law Judge cc: Ms. Virginia Palmer Mr. Walter Engelhardt Prowding Impartial Heanngs for Government and Citizens An Equal Opportunity Employer Adrninistrative Law Sechon & n,dministrabve Services B12? 349-7500 • TDD No (6?2) 341-7346 � Fax No (512) 349-2665 97 I7 '� OFFICE OF ADMINISTRATIVE IiEARINGS FOR TFiE COIINCIL OF THE CITY OF SAINT PAIIL In re the Licenses a£ E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East CITY'S PROPOSED EXIiIBITS January 6, 1997 TO: Judge Rita McConnell, Administrative Law.Judge, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401 The following constitutes a list of the City's proposed exhibits for the Administrative Hearing on January 6, 1997. Exhibit No. Exh. No. 1 Description St. Paul Police Report CN 96-157-804, dated October 4, 1996 (2 pp.); Exh. No. 2 License information regarding E. & K. Corporation d/b/a Checker's Nite Club (1 p.); Exh. No. 3 Notice of Violation letter dated October 25, 1996, with Affidavit of Service (3 pp.); Exh. No. 4 Exh. No. 5 Exh. No. 6 Letter from Walt Engelhardt to Virginia Palmer dated November 4, 1996 (2 pp.); Letter from Virginia Palmer to Walter Engelhardt dated November 20, 1996 (1 p.); Notice of Hearing letter dated December 10, 1996, with Affidavit of Service (4 pp.). g7-�i � Also attached please find courtesy copies of applicable St. Paul City ordinances: St. Paul Legislative Code § 310.05 St. Paul Legislative Code § 310.06 St. Paul Legislative Code § 310.17 St. Paul Legislative Code § 410.05 Respectfully submitted this 6th day of January, 1997. � X � �/.%/29'tM.,GC'..�.J , 0.-!" ✓h-e� Virgi a D. Palmer Assistant City Attorney Office of The City Attorney 400 City Aall 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 {612)266-8710 97--�fI� Lic ZD......•••••........ STAT.....••• ............. Business Name.....,...... Doing Business As........ Address .................. Zip -•• ................... Exp Date ................. License Name ............. NOTE AREA ................ s 7/17/90 CHANGE OF BUSINESS NAME PER RESOLUTION SIGNED BY ROBERT KESSLER 062591 PH ON APPN FOR NEW CLASS B GAMBLING LOCATIO 16335 AC E & K CORPORATION CHECKERS NITE CLUB 1066 7TH ST E 55106 04/30/97 LIQ-ON SALE-OVER 100 SEATS-B SUNDAY ON SALE LIQUOR ENTERTAINMENT-CLASS B RESTAURANT (B}-MORE THAN 12 SEATS INSP CHANGE F120M O1 TO 02 ON 3/20/92 10401 150 SEATS 5-5-87 . N LICENSE APP'D C.F. 91-1159 . 5/15/96 -$2,OOO.QO CHECK FOR PARTIAL PAYMENT OF . LICENSE FEES RETURNED "NSF"' - LAB . 6/25/96 HOME ADDRESS INFO OF OFFICERS GIVEN TO Press <RETURN> to continue... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRSNT OFF ° . JOY OF MESHBESAER & SPENCE LAW FIRM.--LAP-LIC . 8/22/96--REC'b PAYMENT FOR $2,000 BAD CHECK - , 'I'�/'�/Q�__Rx:('F!Tili.'T1 7.TCF.NCF! T77�VMFTQT RIlC'K ��TTCFi� 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.. UNIONAMERICA INS CO LL966109 07/31/96 04/30/97 MICHAEL J KALIS WALTER A ENGELHARDT Dealer No ................ Tax Id ................... 5121502 Worker Comp Exp Date..... 04/30/95 Telephone ................ 776-7915 Press 'C' to continue, 'P' to print, or 'R' to redisplay... Alt-Z FOR HELP° VT102 ° F17X ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° � s � In Re the Licenses of E. & K. Corporatio � d/b/a Checker's Nite Ctub ,..�_._ .,_.,_ ,.r_ ., COURT OF APPEALS NLJMBER CX-97-953 �- 9 � a Presented By Referred To Q Council File # � �-�r� Green Sheet # -\�� RESOLUTION CITY OF SAINT PAUL, MINNESOTA �p� Committee: Date WHEREAS, the City of Saint Paul, Office of License, Inspecfions and Environmental Protec6on brought an adverse action against the licenses held by E& K Corporation d/b/a Checker's Nite Club, far the premises located at 1066 East 7th Street, alleging a violation of their Entertaimnent Class B license; and WI�REAS, on or about December 10, 1996 the licensee was duly notified that a heazing had been scheduled befare an Administrative Law Judge on January 6, 1997; and WI�REAS, the licensee did not appeaz at the January 6, 1997 hearing and the Administrative Law Judge declared the licensee to be in default and took the matter under advisement on the exhibits presented by the City; and WHEREAS, the Findings of Fact, Conclusions and Recommendation of ttae Administrative Law Judge dated February 13, 1997 were served on the Council of the City of Saint Paul, with copies sent to the licensee; and WFIEREAS, a public hearing was held on April 2, 1997 to consider the Recommendation, at which time the licensee did appeaz and presented testimony in opposition to the Findings and Conclusions of the Administrative Law Judge; NOW, THEREFORE BE I'T RESOLVED, that the City Council of the City of Saint Paul, after due deliberafion based upon a11 the files, records and proceedings herein, including the docuxnents and e�ibits submitted to the Administrative Law Judge, the Find'mgs of Fact, Conclusions and Recommendation issued subsequent thereto, and the arguments of the licensee at the public hearing, does hereby adopt and incorporate herein by reference the Findings of Fact and Conclusions of the Administrative Law Judge. FURTHER RESOLVED, that the Recommendation is amended to reflect the Council's discussion of the seriousness of the violation, and the licensee is hereby ordered to pay a fine of Three Thousand Dollars ($3,000) within thirry (30) days of the adoption of this resolution. FITIiTHER RESOLVED, that licensee shall pay the costs of the hearing before the administrative law judge based upon the determination that the defense of the Licensee in this matter was frivolous, azbitrary and capricious. 1 �vuxi ur AppEALS NUMBER CX-97-953 � /� �/ % 7 �f 1 2 A copy of this Resolution, as adopted, shall be sent by first class mail to the Licensee and the 3 Administrative Law Judge. Requested by Department of: Adopted by Council : Date � c�3 _��q'� Adoption Certi£ied by Council Secretary BY: �� a . � -�....�M � Approved by Mayor: Date `f'��/``�� By: � By: Form Approved by City Attox'ney % B � 1L� Approved by Mayor for Submission to Covncil By: COURT OF APPEALS NUMBER CX-97-953 , O � - �� - - - ---- ---- ---- � ., ., � u. ° �c�`�"co,�' ° �` ° � � 199 GREEN SHEE CONTACT PEfl50N & PHONE O DEPqqTMENT DIRE ❑ CITY COUNCIL � GladysMorton,266-8670 A��N �CffYqTTORNEY �C17YCLERK MU5T BE ON COUNCIL AGENDA BY (DATE) NUNBEP fQA O BUDGET OIRECTOR � FIN. & MGT SEFVICES DIR. POUiiNG A ri123, 1997 Consent A enda OBDEq � MAVOR (OR AS$I5TANn � TOTAL # OF SIGNATURE PAGES (CLIP ALL LOCATIONS FOR SIGNATURE) ACTION HEQUESTED. Finalizing Ciry Council acuon taken on April 2, 1997, concerning adverse ac6on against licenses held by E& K Corporauon, DBA Checker's Nite Club, 1066 East Seventh Street. RECAMMENDA710NS: Approve (A) or Peject (R) PEFiSONAL SERYICE CONTRACTS MUST ANSWER TNE FOLLOWING �UESTIONS: _ PLANNING CAMMISSION �_ CIVIL SERVICE COMMISSION 1. Has this person/firm ever worKed under a comract for this tlepartment? _ CIB COMMITTEE _` VES NO 2. Has this personlEirm ever been a ciry empbyee? _ STAFF — YES NO _ DIS7RIC7 CoURT _ 3. Does this person/firm possess a skill not normally possessed by any curtent city amployee? SUPPORTS WHICH COUNCIL OBJECTIV�p YES NO Explafn all yes answers on separate sheet end at[aeh to green Sheet INITIATING PROBLEM, ISSUE, OPPOflTUNITV (Who, Wheq When, Where. Why): ADVANTAGESIFAPPROVEO: S �hest U�A. q�, 'Yi"admqi�e. „ _ . . {':. .. .{ ,t ..�u. DISADVANTAGES IF APPROVED. � - DISADVANTAGES IF NOT APPROVED: 70TAL AMOUNT OF 7RANSAC710N $ COST/FiEVENUE BUDGETED (CIRCLE ONE) YES NO FUNDIWG SOURCE ACTNITV NUMBER FINANCIAL INFORM'ATION: (EXPLAIN) C",OURT OF APPEALS NUMBER CX-97-953 CITY OF SAINT PAUL Norm Co[emarz, Mayor March il, 1997 //�,Jj �J OFFICE OF TI� CITY ATTORNEYIjrj _�)n Peg Brrk, Ciry Atforney � � � �3 - Civi! Division 400 Ciry Ha(I I S West Ke77ogg BHd SainlPaul, �nnesata 55/02 Telephone: b12 266-87I0 Facsimik: 6/1 298-5619 NOTICE OF RE-SCIiEDULED COUNCIL HEARING Mr. Walter Engelhardt Checker�s Nite Club 1066 7th Street East Saint Paul, Minnesota & Mr 55106 Michael Kalis Re: Licenses held by E. & K. Corporation djb/a Checker's Nite Club for the premises located at 1066 7th Street East in St. Paul License ID No.: 16335 File Number: G96-O518 Dear Mr. Engelhardt and Mr. Kalis: Pursuant to your request, the public hearing on the report of the Administrative Law Judge concerning Checker's Nite Club has been re-scheduled to 4:30 p.m „ Wednesday, April 2, 1997, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. Sincerely, �/��.�-� ��-� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 COURT OF App$Aj„$ � OFFICE OF TF� CITY ATTORNEY I`NMBER CX-97-953 Peg Bisk Ciry Aaarney g�- y/7 I�1 CITY OF SAINT PAUL Civi[Divrsion Norm Ca(emm�, Mayor February 20, 1997 Mr. Walter Engelhardt Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota Re: Licenses held by for the premises License ID No.: 400 Ciry Hail IS West Kellogg Blvd Saint Pme� M"mnesot¢ 55102 NOTICE OF COIINCIL HEARING & Mr. Michael Kalis 55106 Telephone: 612 266-8710 Facs�tile: 612 298-5619 E. & K. Corporation d/b/a Checker's Nite Club located at 1066 7th Street East in St. Paul 16335 File Number: G96-0518 Dear Mr. Engelhardt and Mr. Kalis: Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-mentioned license has been scheduled for 4:30 p.m., Wednesday, March 12, 1997, in the City Council Chambers, Third Floor, Saint Paul City Hall 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 wil,l be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Administrative Law 3udge 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, �� ybt�l�2 Virginia D. Palmer Assistant City Attorney Council Research Cenfer � �� 2 u lag7 cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 � �7- �i 7 STATE OF MINNESOTA OFFICE OF ADMINISTRATiVE AEARINGS 100 Washington Square, Suite 1700 COURT OF APpg,r�LS 100 Washington Avenue South NUjy1BER CX-97-953 Minneapolis, Minnesota 55401-2138 February 13, 1997 City Clerk Saint Paul City Council 386 City Hall 15 West Rellogg Blvd. Saint Paul, Minnesota 55102 Re: The Licenses held by E. & K. Corporation, d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota File No. 80-2111-10861-6 Dear City Clerk: Enclosed for service upon the Saint Paul City Council are the Findings of Fact, Conclusions of Law and Recommendation for the above-referenced matter. A copy of this Report has also been served this day on Virginia Palmer of the Office of the City Attorney and Walter Englehardt on behalf of the licensee. Sincerely, ��'�Z� 'ta A. McConnell inistrative Law Judge cc: Ms. Virginia Palmer Mr. Walter Engelhardt Providing Impartial Hearings for Government and Citizens An Equ al Opp E mploy er Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 9�- �i7 STATE OF MINNESOTA OFFICE OF ADMINISTRATiVE HEARINGS 10� Washington Square, Suite 17�0 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 COURT OF AppEAI;S NUMBER CX-97-953 —J February 13, 1997 Ms. Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Kellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Kalis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 Re: The Licenses of E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota Fi1e No. 80-2111-10861-6 Dear Ms. Palmer and Gentlemen: Enclosed for service upon you please find a copy of the Findings of Fact, Conclusions of Law and Recommendation in the above-captioned matter. A copy has also been served this day upon the City Clerk. Sincerely, C �f�( i 2 1;/�/�l� ita A. McConnell Administrative Law 3udge j>cc: City Clerk Providing Impartial Heanngs for Govemment aod Citizens An Equa Opportunity Employe Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 34'I-7346 � Fax No {612) 349-2665 `COURT OF APPEALS �p g' 7_ L�/ � NUMBER CX-97-953 L'J STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF SAINT PAUL in re the Licenses held by E. & R. Corporation, d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota 80-2111-10861-6 FINDINGS OF FACT CONCLUSIONS OF LAW AND RECONIMENDATION The above-entitled matter came on for hearing before Administrative Law Judge Rita A. McConnell on January 6, 1997 at 9:30 a.m., in Room 1503, Saint Paul City Hall Annex, 25 West 4th Street, Saint Paul, Minnesota, 55102. The record closed on January 6 at the close of the hearing. Virginia D. Palmer, Assistant City Attorney, appeared on behalf of the City of Saint Paul, Of£ice of License, Inspections and Environmental Protection (LIEP). No representative appeared on behalf of the license holder. Notice is hereby given that this Report is a recommendation only and not a final decision. The Saint Paul City Council will make the final decision. After a review of the record, it may adopt, reject, or modify the Findings of Fact and Recommendations contained herein. Pursuant to Saint Paul Legislative Code Section 310.05, the City Council will provide each party adversely affected by tl�is Report to present oral or written argument alleging error in this Report and present arguments to the Council related to any recommended adverse action. Parties should contact the City Clerk, Saint Paul City Council, 386 City Hall, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. COURT OF APPEALS NLTMBER CX-97-953 STATEMENT OF ISSUES Q5 9� 1. Whether licensee permitted sexual acts or conduct on the licensed premises in violation of Section 410.05 of the Saint Paul Legislative Code. 2. Whether licensee provided on the licensed premises entertainment that is permitted only under a Class C license. 3. Whether licensee should be assessed the costs of the contested hearing on the grounds the licensee's defense was frivolous, arbitrary or capricious. Based upon all the files, records and proceedings herein, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. Licensee E. & K. Corporation (Licensee) holds a variety of licenses for the business it operates as Checkers Nite Club at 1066 7th Street East in Saint Paul. Included in those licenses is a Class B Entertainment license. The premises is licensed for 150 seats. City's Exhibit No. 2. 2. On October 4, 1996, Saint Paul Police 0££icers Dean Roehnen and Renneth Jensen filed Police Reports indicating they were dispatched to Checkers Nite Club in the early hours of October 4 where they observed a male employee of the C1ub dancing in briefs or underwear. Officer Jensen's report indicated the dancer's genitals were exposed and that a patron had his hand on or near the genitals during the dance. City's Exhibit Noa 1. 3. By letter dated October 25, 1996, Assistant City Attorney Virginia Palmer notified the Licensee that the conduct described above violated the Saint Paul Legislative Code and formed the basis for adverse action against the licenses. City's Exhibit No. 3. 2 COURT OF APPEALS /,_`� / / 7 �� 1 NUMBER CX-97-953 �--/� 4. On November 4, 1996, Licensee through its stockholder Walter Englehardt responded to the Palmer's letter. In that response, Englehardt stated as follows: This is what the Officer saw when he walked into the bar. The male dancer £or the night was wearing a pair of Calvin Rlein boxer shorts, under the boxer shorts the dancer was wearing a gold almost flesh colored T-back. (This is something like a jock strap with the front and rear covered.) The officer observed a white male dancer with his shorts pulled down, the officer did not see the T-back and assumed the genitals were exposed. City's Exhibit No. 4. 5. In response to Englehardt's letter, Palmer advised the Licensee that the conduct admitted in the letter was not permitted under an Entertainment Class B license and af£ered Licensee the option of proceeding to an administrative hearing or resolving the matter short of a hearing. City's Exhibit No. 5. 6. Licensee did not respond to Palmer's November 20 letter. Accordingly, on December 10, 1996, Palmer sent I,icensee a notice of the hearing held on January 6, 1997. City's Exhibit No. 6. 7. The license fee for a Class C Entertainment License is $1,600.00. The fee paid by Licensee for a Class B Entertainment License was $500.00 8. Neither Walter Engelhardt nor any other representative appeared on behalf of the Licensee at the scheduled hearing. Based upon the foregoing, the Administrative Law Judge makes the following: CONCLUSIONS 1. The Administrative Law Judge City Council have jurisdiction in this and the Saint Paul matter pursuant to 3 COURT OF AppEALS NUMBER CX-97-953 � } g�-�r`� � Minn. Stat. Section 14.50 and Saint Paul Legislative Code Sections 310.05 and 310.06. The Licensee received timely and proper notice of the hearing of this matter. 2. The Saint Paul Legislative Code provides for adverse action against a licensee if a licensee fails to comply with any condition set forth in the license, or if the licensee violates a provision of the Code. Saint Paul Legislative Code Section 310.06(b)(5) and (6). 3. Under a Class B Entertainment license, the Licensee is authorized to provide entertainment in which "all of the participants...[are] fully clothed at all times." Saint Paul Legislative Code Sec. 411.02, Class B. In order to provide entertainment which includes performers who are not fully clothed, Licensee is required to obtain a Class C license which permits clothing that is "minimal but in compliance with Chapters 409.09 and 410.05 of the Legislative Code." Saint Paul Legislative Code Sec. 411.02, Class C. 4. Saint Paul Legislative Code Section 410.05 contains several sections which prohibit the exposure of genitals by employees or patrons on licensed premises, including section (1) which prohibits the "employ...[of] any person in the sale or service of alcoholic beverages in or upon the licensed premises while such person is unclothed or in such attire, costume or clothing as to expose to view any portion of the ... genitals." 5. The Licensee is in default herein under Minn. Rule 1400.6000 as a result of its failure to make an appearance at the hearing. 6. Pursuant to Minn. Rule 1400.6000, the allegations set out in the Notice and Order for Hearing may be taken as true and deemed proved without further evidence when a party defaults. 7. The City has established that the Licensee provided entertainment in which the participants were not fully 4 COURT OF APPEALS O 9 7 I� NUMBER CX-97-953 clothed in violation of the conditions of a Class B Entertainment license. 8. The violation of the conditions of the Class B license was intentional and without regard to the limitations on that category of license as set forth in the Saint Paul Legislative Code. 9. The defense of the Licensee in this matter was frivolous, arbitrary and capricious, justifying the imposition of the costs of the hearing on Licensee. Based upon the foregoing Conclusions, Administrative Law Judge makes the following: RECOMMENDATION the IT IS HEREBY RECOMMENDED that the 5aint Paul City Council take adverse action against the licenses of E. & R� Corporation by assessing a fi e in the amount of �9�e—Three� 3,00a, c�c3 Thousand a��. °••-�--' "�?'_�_.. (� and requiring the licensee to pay the costs of the administrative hearing. Dated this 13th day of February, 1997. „� � ` C��/' � r 1 ( Rit A. McConnell � a f. `� A nistrative Law Judge � �� Reported: Taped, not transcribed. NOTICE The Saint Paul City Council is requested to serve a copy of its final decision upon the Administrative Law Sudge as well as the parties by first class mail. 5 COURT OF APPEALS � � 7`�7 � 7 NUMBER CX-97-953 MEMORANDUM The allegations set forth by the City in its Notice of Hearing establish a violation of that Section o£ the Saint Paul Legislative Code {"the Code") which prohibits certain sexual conduct on licensed premises. Since the Licensee did not appear at the hearing, these allegations may be taken as true. The Licensee did, however, respond to the allegations in writing prior to the hearing, establishing a basis for its defense in this matter. In addition, the police officers who allegedly observed the prohibited conduct also failed to appear at the hearing. Consequently, the record alone does not establish a violation of Section 410.05 of the Code. The facts which are accepted as true are those admitted in the letter from Licensee's representative. The letter's description of the dancer's costume indicates the dancer was wearing a flesh colored jock strap, and was dancing with his boxer shorts pulled down. From this description, it is reasonable to conclude that the dancers was not "fully clothed but was rather wearing "minimal" clothing during the entertainment. Such costuming is permitted only with a Class C license under Section 411.02 of the Code. Providing such entertainment with only a Class B license is a violation o£ the conditions in the license and the provisions of Section 411.02. The City Council is permitted to impose a fine upon the licensee in an amount it deems reasonable and appropriate under the circumstances. Saint Paul Legislative Code Section 310.05{1). The Code sets forth certain presumptive penalties for Code violations by on-sale licensed premises. The council is allowed to deviate from those penalties "where the council £inds and determines that there exist substantial and compelling reasons making it more � COURT OF APPEALS � �f ']- �{ / '7 N[JMBER CX-97-953 `� appropriate to do so." Saint Paul Legislative Code Sec. 409.26. The Code does not specify a presumptive penalty for the type o£ violation at issue in this matter. It does, however, indicate that a fine of $1,500.00 is presumptively appropriate for a first violation by a licensed premises with a seating capacity of 150. LIEP argues this penalty is insufficient since the Licensee already saved $1100.00 in licensing fees by paying for a Class B rather than a Class C license. In order to penalize Licensee for this violation, LIEP suggests the assessment of a$2,000.00 fine. Although the evidence supports the conclusion that Licensee disregarded the restrictions on its license, that disregard does not appear so flagzant as to justify imposition of a penalty in the amount requested. LIEP's request overlooks the $500.00 already paid by the Licensee for the Class B license. If the presumptive penalty is imposed, the Licensee will pay the City a total of $2,000.00, thereby incurring expenses of $400.00 beyond the amount it would have paid for an appropriate license. This amount, together with the imposition of the hearing costs, is a sufficient penalty in light of the violation. R.A.M. 7 0 97�� STATE OF MINNESOTA COURT OF APPEALS OFFICE OF ADMINISTRATIVE HEARINGS j�jLJNIgER CX-97-953 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapotis, Minnesota 55401-2138 March 21, 1997 Fred Owusu City Clerk 170 City Hall 15 W. Kellogg Bfvd. St. Paul, MN 55102 Re: In the Matter of the License held by E& K Corporation d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota ; OAH Docket No. 80-2111-10861-6 Dear Mr. Owusu: On February 13, 1997, Administrative Law Judge McConnell. Served the Findings of Fact, Conclusions and Recommendation in the above-entitled matter. Enclosed is the o�cial record, including a copy of the tape recording af the hearing. If Our file in this matter is now being closed. Very truly yours, `�'`G%.��!��" 1 � / t/ Nancy M. Thomas Docket Clerk Telep hone: 612/341-7615 NT Enc. Providing Impartial Hearings for Government and Citizens An Equal Oppd�Sunity Employer Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 COURT OF APPEALS NUMBER CX-97-953 AF'FIDAVIT OF SERVICE BY MAIL � 9 �- ��7 Rita A. McConnell, of the City of St. Paul, County of Ramsey, in the State of Minnesota, being duly sworn, states that on tfle 13th day of February, 1997, she served the annexed Findings of Fact, Conclusions of Law and Recommendation, upon the individuals named below by mailing to them a copy thereof, enclosed in an envelope, postage prepaid, and by depositing same in the U.S. Mail at Saint Paul, Minnesota as follows: Ms. Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Rellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Ralis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 City Clerk Saint Paul City Council 386 City Hall 15 West Kellogg Blvd. Saint Paul, MN 55102 FURTHER AFFIANT SAYETH NOT. C ita A. MeConnell Subscribed sworn to befo e me �.� day of February, 1997. Nota"ry u lic .owv..�aoo.wa«m � STEVEN F. MAT7AINI twsaRr vusuc - auax�sora RAMSEY COUMZ' �b cannsuoa F�Y« Jm.9t. moo COURT OF APPEALS NUMBER CX-97-953 ,....� �.,, r ' ' �� ' h� `� _ �'..`��f_�ta3 _ _ __ )�� . �.. ._ STATE OF MtNIVESOTA OFFICE OF ADMINi5TRATIVE HEARINGS 100 Washingto� Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 � "`�� February 13, 1997 Ms. Virginia D. Assistant City 400 City Hall 15 West Kellogg Saint Paul, MN Palmer Attorney Blvd. 55102 Mr. Walter Engelhardt Mr. Michael J. Ralis c/o Checker`s Nite Club 1066 7th Street East Saint Paul, MN 55106 Re: The Licenses of E. & K. CorpoT'ation d/b/a Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota File No. BO-2111-10861-6 Dear Ms. Palmer and Gentlemen: Enclosed for service upon you piease find a copy of the Findings of Fact, Conclusions of Law and Recommendation in the above-captioned matter. A copy has also been served this day upon the City Clerk. �_ Sincerely�� 6' </� —, ita A. McConnell Administrative Law Judge cc: City Clerk �7-'�l� Providing Impartial Hearings for Govemment and Citizens An Eq Oppor Emp4oyer Administrative Law Section & Administrative Services (612) 341-7600 � TDD No (612) 341-7346 ��ax No (612) 349-2665 COURT OF APPEALS NUMBER CX-97-953 .: : �..:,. �: `� :�Ne`a *u� - ��)�:_ ; : , � STATE OF MINNESOTA � OFFICE OF ADMINISTRATIVE NEAR[NCS 100 Washington Square, Sufte 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 ��n� f 9'7��f�7 February 13, 1997 City Clerk Saint Paul City Council 386 City Hall 15 West Rellogg Blvd. Saint Paul, Minnesota 55102 Re: The Licenses held hy E. & K. Corporation, d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota File No. 80-2111-10861-6 Dear City Clerk: Enclosed for service upon the Saint Paul City Council are the Findings of Fact, Conclusions of Law and Recommendation for the above-referenced matter. A copy of this Report has also been served this day on Virginia Palmer of the Office of the City Attorney and Walter Englehardt on behalf of the licensee. Sincereyy, ( / � / ' � -E�f"�,' �� 'ta A. McConnell �_Adi[tinistrative Law Judge cc: Ms. Virginia Palmer Mr. Walter Engelhardt Prov�ding Impartial Hearings for Govemment and C�tizens An Equal Opportunity Employe Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341J346 � Fax No (612) 34&2665 COURT OF APPEALS NUMBER CX-97-953 9 7-'�17 � \✓ OFFICB OF ADMINISTRATIVE HEARINGS FOR TFiB COIINCIL OF THE CITY OF 5AINT PAIIL In re the Licenses of E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East January 6, 1997 CITY'S PROPOSED EXEiIBITS TO: Judge Rita McConnell, Administrative Law Judge, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401 The following constitutes a list of the City's proposed exhibits for the Administrative Hearing on January 6, 1997. Exhibit No. Exh. No. 1 Exh. No. 2 Exh. No. 3 Exh. No. 4 Exh. No. 5 Exh. No. 6 Description St. Paul Police Report CN 96-157-804, dated October 4, 1996 (2 pp.); License information regarding E. & K. Corporation d/b/a Checker's Nite Club (1 p.); Notice of Violation letter dated October 25, 1996, with Affidavit of Service (3 pp.); Letter from Walt Engelhardt to Virginia Palmer dated November 4, 1996 (2 pp.); Letter from virginia Palmer to Walter Engelhardt dated November 20, 1996 (1 p.); Notice of Hearing letter dated December 10, 1996, with Affidavit of Service (4 pp.). _ COURT OF APPEALS � �}�, � / , NUMBER CX-97-953 `y � Also attached please find courtesy copies of applicable St. Paul City ordinances: St. Paul Legislative Code St. Paul Legislative Code St. Paul Legislative Code St. Paul Legislative Code § 310.05 § 310.06 � 310.17 § 410.05 Respectfully submitted this 6th day of January, 1997. !/l./�ii��'� i c��a� Virgi a D. Palmer Assistant City Attorney Office of The City Attorney 400 City Hall 15 West Kellogg Soulevard Saint Paul, Minnesota 55102 (612)266-8710 COURT OF APPEALS NUMBER CX-97-953 Lic ID .................•- STAT ..................... Business Name..._........ Doing Business As........ Address .................. Zip ...........•••••...... Exp Date ................. License Name ............. NOTE AREA .............. � 16335 AC E & K CORPORATION CHECKERS NITE CLUB 1066 7TH ST E 55106 04J30/97 LIQ-ON SALE-OVER 100 SEATS-B SUNDAY ON SALE LIQUOR ENTERTAINMENT-CLASS B RESTAURANT (B)-MORE THAN 12 SEATS INSP CHANGE FROM O1 TO 02 ON 3/20/92 10401 150 SEATS 5-5-87 97--�f/� 7/17/90 CHANGE OF BUSINESS NAME PER RESOLUTION SIGNED BY ROBERT KESSLER 062591 PH ON APPN FOR NEW CLASS B GAMBLTNG LOCATIO N LICENSE APP'D C.F. 91-1159 5/15/96 - $2,000.00 CHECK FOR PARTIAL LICENSE FEES RETURNED "NSF" - T,AR . 6/25/96 HOME ADDRESS INFO OF OFFICERS PAYMENT OF GIVEN TO Press <RETURN> to continue... A1C-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° Bond Policy Number....... Bond Company ............. Bond Ef£ective Date...... Bond Expiration Date..... Insurance Carrier........ Ins. Policy Number....... Insurance Effective Date. Ins. Expiration Date..... Associated Stock Holder.. JOY OF MESHBESHER & SPENCE LAW FIRM.--LAP-LIC 8/22/96--REC'D PAYMENT FOR $2,000 BAD CHECK - T�AR 12/2/96--RECEIVED LICENSE PAYMENT BACK "NSF" - T�AR UNIONAMERICA INS CO LL966109 07/31/96 04/30/97 MICHAEL J KALIS WALTER H ENGELHARDT Dealer No ................ Tax Id ................... 5121502 Worker Comp Exp Date..... 04/30/95 Telephone ................ 776-7915 Press `C` to continue, 'P` to print, or `R` to redisplay... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° � - - � In Re the Licenses of E. & K Corporation ', — dlb/a Checker's Nite Club — City's Exh. No. 2 COURT OF APPEALS NUMBER CX-97-953 ae „ . o. 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L _ . . ___ _ . _ . _-- -.. !78_Jf _5��n�_S_ SLY'__�0`�-,.!"'� --Qa� �.n_�r _�naG. _ -- i � -- �. rr✓� s�_�----�ht- ---�'�._ -- L t � 3 3 G_ G f IL s 3� L. a y r --- ---- � - �� 3 `� 3 __ r� g il a F f�� - W��_ .. _r�� a,. F e1 I�.__cer�o�o . `�_._f�'O_____ A�- To�r. ��s�- �y, �r.� I % ,: • s� ��:� - �-- -- '�`� _ _ `-tSntfS JI_<_t-'t- --- C� . , sf[. 3� 7 F FOlSTER 5T. PAUL POLICE DEPARTM� �� "� yr � GENERAL REPORT • 0 z � , � J m � CHF ❑ Hom ❑ Rob ❑�� ❑ Coord p i� ❑ Lab �� Team C In Re the Licenses of E. & K. Corporation �� D/C � Burg � Theft ❑ Prop � CAU � F&F 0 Auto � DA [] CO [— �/a Cheeker's Nite Club ' � _ Citv'�E�. No. 1 COURT OF APPEALS NUMBER CX-97-953 REPORT v-�t��,c� or o0 •ST. PAUL POLICE CONTINUATION OF: I . � PARTMENT ORIGINAL REPO 9�-v�7 SUPPLEMENTAL REPORT � �.ntQ 3 l T� t ��. _`i e.,�S�-_ c�, l3� A-�� .'�Z�_ �3 L� 1 3� ��c.� 33 � V+T _�♦ l� ��K2� _0.� . LV � V �� t _ pa.9{�'� G��l G� - W L ihvo W c� '.� w�A�S �Z.volv e� t� O�rh� St - C��J. ar�.`vo,,F � w��l t1.. t1� {�vo,n�- door �__.s� .w -o..� - ��,,ol ��. �-...t s,�, �, d ._ _�_ ��}�. �'�oW 2N.e.v� yV.Q_ o. N.�o��e o<<4+nC2v- /n.. w�s4Yi G. pai r 81 _ --`D'hi �-C �OC.�C�e.� y�vW.CM/' d�+.4�lLl%�q rDr A O�"t� �$�,ciLl. --� '.` w �o.�- . � ca� � • s_ee. �t �O A�,�. � l�:.� r�� 1..� �a�e { � -- }�IQo� Ov �VC.�n�� /�'�e�� cc0. �2..1i �q�� c.v/1 �2.. �.•4✓tcR.V __ H� �7t �v.1}' �'F 1n�3 ��o�f ctowh� z.p�pas�'v+ �,S C,c.ni i�lT �� a��oc�c� _ � �c�a n {v �e��a.. . �n,�� . 0 z � 6' 1 �l -,] � O � �� 1EiT1�Q CHF � Hom ❑ Rob ❑ Jw ❑ Coorci ❑ ID ❑ lab D/C ❑ Burg � Theft � Pmp 0 CAU ❑ F&F 0 AWo O.T.: Typist: �Yes � No Rec ❑ Team �Sex ❑ Rpt� DAO ❑ CA HumServ ' n P�M 62�2-93R � � � X,�./ COURT OF APPEALS q OFFIC ^ TI� CITY ATTORNEY NUIVIBER CX-97-953 • 1 Tmorh �rs, Ciry Anomey �� 7 CITY OF SAINT PAUL Norm Cokmrm, Mayar October 25, 1996 Mr. Michael J. Kalis Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota Civd Division 400 Gry Hal1 IS West Kellogg Blvd Saint Paul M'mnesom 55101 and Mr. Walter H. Engelhardt 5106 Tekphone: 612166-8770 Facs "vrsile: 612198-5679 RE: All licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the property located at 1066 7th Street East in St. Paul License ID No.: 16335 Dear Mr. Kalis and Mr. Engelhardt: I am in receipt of information that could lead to adverse action against your business licenses. The basis for the adverse action is: Saint Paul Police Report CN 96-157-804 statea that on October 4, 1996 Officer Jensen was sent to Checker's Bar, located at 1066 E. 7th Street, Saint Paul, and observed a white male dancer with his shorts pulled down, exposing his geaitals. A patron had his right hand near or touching the male daacer's geaitals. This is a violation of Saint Paul Legislative Code §410.05(3) and (7) and forms the basis for adverse action against aZl the business licenses of Checker's Nite Club. If you don't dispute that the facts highlighted above took place, this matter will be scheduled before the St. Paul City Council for a hearing to determine what penalty, if any, to impose. You will be allowed to speak on your behalf at that hearing. I will need a letter from you saying that you do not dispute the facts, to present this matter directly to the City Council. On the other hand, if you wish to dispute the above facts, I will schedule an evidentiary hearing before an Administrative Law Judge (ALJ). You will receive a"Notice of Hearing," so you will know � � _dn Re the Licenses af E. & K Corpoxation I d/b/a Checker's Nite Club —, City's Exh. No. 3 , COURT OF APPEALS ' • � Q , , , I l � ' 'NUMBER CX-97-953 / `7� Page 2 when and where to appear, and what the basis for the hearing wi11 be. In either case, you should contact me within ten days from the date of this letter. If I do not hear from you, I will schedule the hearing before the ALJ, and you may be held responsible for the costs of the hearing if you do not then appzar and contest the facts. Please call me or have your attorney call me at 266-8710. Very truly yours, �� v Virginia D. Palmer Assistant City Attorney cc: Robert Kessler, Director, LIEP Christine Rozek, LIEP Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 COURT OF APPEALS N[JMBER CX-97-953 :� STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY ) • � 97� y� 7 AFFIDAVIT OF S7sRV2CS BY MAIL JOANNE G. CLEMENTS, being first duly sworn, deposes and says that on October 28, 1996, she served the attached LETTER on the following named persons by plaoing a true and correct copy thereof in an envelope addressed as follows: Mr. Michael J. Kalis and Mr. Walter H. Engelhardt Checker's Nite Club 1066 7th Street East St. Paul, MN. 55106 (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 28th day of October, 1996. .e� /// < �� Notary Public � RITA M. BOSSARD t � Z � - NO�ARYPUBLIC—h"iiJIdESOTA " ' RAPhSEY COUNTY � MyComm.ExpiresJan.31.2000� COURT�OF APPEALS NUMBER CX-97-953 11/4/96 � CHECKERS NITE CLUB 1066 E. 7TH. ST. St. Paul, MN. 55106 (612) 776-7915 License tD. No_ 16335 � � re: St.Paul Police Report CN 96-157-804 Oct. 4, 1946 Virginia Palmer Assistant City Attorney Civil Division 400 City Hall 15 West Kellogg Blvd. St. Paul, MN, 55102 Dear Virginia Paimer, C� 97-�i7 �� NOV 4� 1996 �°�� E� In response to the allegations of Of£icer 3ensen. On the rright in question when Officer 7ensen came into checkers Nite Club he told the manager that they had received a complaint that there was homose�ntai activities �oing on down here. Tenel Hunter who is the bar manager asked a�cer 3ensen what exactly he meant by that. One of the officers said to Terrel you know " sucking cock and butt fucking ." First of a11 these activities aze not 1ust homasexual activities. Secondly and mu�t importantIy these activities wether they are homosexuat or heterose�xal tkey do not take place inside Checkers Nite Club nor are they proma#erl or encouraged by Checkers Nite Ciub. It seems same on� called the St. Paut Police Department and reported something happening inside Checkers Nite Club. It is obviously someone who has never been in tlte har, and was probably just trying to cause probfems for the bar because they don't like the Gay I Lesbian community. And through their ignorance and with their over active imagination called in a complaint of Homosexiial activiries. After the call was received by the Police department a squad was dispatched. Officer 7ensen was the first Officer into the bar. Officer Jensen probabiy has never been in a Cray/Lzsbian bar before and had nt� idea of what to e�ect. So after hearing the call the Officers imaginatipn probably created al1 kinds of pictures of what was going on in the bar. TYtis is what the Qfficer saw when he walked into the har. The male dancer for the night was wearing a pair of Caivin Klein boxer shorts, rander the boxer shorts the dancer was wearlrt$ a gold almost flesh colored T- back. ( This is sometlung like a jock strap with the front and rear covered.} The officer observed a white male dancer with lus shorts pullad down, the officer did not see the T-back and assumed the genitaLs were exposed. Than the report goes on to say " a patron had tris right hand near or touching the male dancer's genitats" but in realiry the customer was putting a$ l.flfl tzp in elastic band at tke top of the T-back. By the time the raid {for Iack of a better word) was over there were 7-10 Officers in the bar. _ _ •n Re the Licenses of E. & K. Corporation� — d/b/a Checker's I�Tite Club — City's E�. No. 4 � COURT OF APPEALS • NUMBER CX-97-953 !0 Page 2 � 97-yj� They not onIy checiced the portion of tke bar that was open but they checked tfie entertainment (dance side) side of the bar which was not open that night and they even went down 'srto the basement Iooking for homosexual activity and of course found none. Qn Jaauary 1, of 1496 I changed Checkers I�iite Club from a basicaily all btack nite cIub inta a bar that caters to the gay I lest�ian crawd. Ths reasan for tlus change was I was tried of having to wear body armor to work and havin� my life ttueatened. Since the change over there has not been a singte Police catt to Ckeckers Nte Cluh_ My customers are a very quite � and do not sause a problem for the Palice department and I or the City of St. Paui. If the City of St. Paut, and / or the Palice departme�t have a prohlem with a bar that caters ta the gay i lesi�ian crowd then I wi11 chauge the bar back into a bIack nite club, then we atl will have to dea( with the guns and gang probletns. I am sure the City of St. Paui does not want this to happen, neither do L After I changed the bar over I had many of the tocal Police officers stop in to thank me for getting rid of the last crowd. There are no iiiegal activities being perFormed inside Checkers Nite C2ub and we try ta keep a eye on the parksng Pot and sunounding areas out side. I feel that this was just a isolated inci$ent, and the golice will not react with such exuberance to the next prank phone call. I hape ihis brings this tap'sc to an end, and clearifies exactly what tr�nsp'ued on the night in question. If you have any more questio�s or need to ta3k to me feel free to call. Some times it is easyier to contact me at home siace the bar doesn't o�en untill 6:00 PM. Thanks b o, W�C Wa.lt Engelhardt oumer CheGkers NitE Club bar# 776-7915 Iwme # 715 425-5 ISb CITY OF SAINT PAUL Norm Colemmy Moyor COURT OF APPEAL5 � NiJMBER CX-97-953 November 20, 1996 Mr. Walter Engelhardt Checkers Nite Club 1066 7th Street East Saint Paul, MN 55106 'l OFFICE OF THE CITY ATTORNEY Tuno�Marx, City Aaorney � �` Civil Division 400 Ciry Ha7t I S West Kellogg Blvd Saint PauZ M"mnesora 55702 7'ekphone: 612 266-8710 Facsimile: 671298-5619 RE: All license held by E&K Corporation d/b/a Checker's Nite Club Dear Mr. Engelhardt: Thank you for your letter of November 4, 1996 explaining your version of the incident reported in Saint Paul Police Report 96- 157-804. I discussed the matter with personnel from the Office of License, Inspections and Environmental Protection, and it appears that the entertainment you have described is still not permissible under an Entertainment Class °B" license. The license you have does not permit partially clothed performers. At this point we can schedule the matter for an adverse hearing before an administrative law judge to determine what the officer in fact saw and whether it is a violation of your license, or you can, if you wish, admit to the incident as you have described it as a vialation of your type of license. If you wish to discuss this you can reach me at 266-8710, or you can send a letter indicating how you wish to proceed. However you choose to proceed, I would appreciate a response by Monday, December 2, 1996. Thank you for your prompt response. Sincerely, `�� .P..,�.,� Virg�a D. Palmer Assistant City Attorney cc: Christine Rozek, Office of LIEP � — - � In Re the Licenses of E. & K. Corporatiun ; ` d/b/a Checker's Nite Club — i City's Egh. No. 5 COURT OF APPEALS NUMBER CX-97-953 � OFFICE OF THE CITY ATTORNEY Trmothy 6 Ma� Gty Attomey 97-�/� CITY OF SAINT PAL3L Nosm Cokmmi, Mayor December 10, 1996 Civil Division 400 Ciry Ha71 I S Weat Kellogg Slvd Saint Pau{ Mmnesow 55102 NOTICB OF HEARING Mr. Michael J. Kalis Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota and Mr. Walter H. Engelhardt 55106 Tekphone: 612 266-8710 Facsimile: 612 298-5619 RE: Al1 licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the premises located at 1066 7th Street East in St. Paul License ID NO.: 16335 Our File Number: G96-0518 Dear Mr. Kalis and Mr. Engelhardt: Please take notice that a hearing will be held at the following time, date and place concerning all licenses for the premises stated above: Date: Monday January 6, 1997 Time: 9:30 a.m. Place: Room 1503 City Hall Annex 25 W. 4th St. St. Paul, NIIQ 55102 The hearing will be presided over by an Administrative Law Judge from the State o£ Minnesota Office of Administrative Hearings: _ Name: Rita MeConnell Office of Administrative Hearings 100 Washingtoa Square, Suite 1700 Minneapolis, Sff�7. 55401 Telephoae: 961-7770 The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse action � -� In Re the Licenses of E. & K, Corporation I — d/b/a Checker's Nite Clnb —, City's Exh. No. 6 COURT OF APPEALS ' NiJMBER CX-97-953 12 9 7 y» against such licenses, under Chapter 310, including sections 310.05 and 310.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non-intoxicating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action against all the licenses you hold at the above premises as follows: Saint Paul Police Report CN 96-157-804 states that on October 4, 1996 Officer Jensen was sent to Checker's Bar, located at 1066 E. 7th 5treet, Saint Paul, and observed a white male dancer with his shorts pulled down, exposing his genitals. A patron had his right hand near or touching the male dancer's genitals. This type of entertaiament is in violation of your Bntertainment Class B license. 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 o£ 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 Sudge 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. Notice of Hearing - Page 2 , COURT OF APPEALS I,� �'J— yi � � NUMBER CX-97-953 If you think a stipulation or agreement can be reached as to the facts, that stipulation will be presented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. If you fail to appear at the hearing, your ability to challenge the 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. If you have any questions, you can call me at 266-8710. Very truly yours, ��_� �� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 Notice of Hearing - Page 3 COURT OF APPEALS NUMBER CX-97-953 STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY ) �� 7-LII`7 AFFIDAVIT OF SERVICE BY MAIL JOANI3E G. CLEMENTS, being first duly sworn, deposes and says that on December 13, 1996, she served the attached NOTICE OF HEARING on the following named person by placing a true and correct copy thereof in an envelope addressed as follows: Mr. Michael J. Kalis and Mr. Walter H. Engelhardt Checker's Nite Club 1066 7th Street East St. Paul, MN. 55106 (which is the last known address of said person) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 13th day of Decembar, 1996. �.�r�.Z�� Q�O� "" � Notary Public � , RITA R4. BOSSARD � �# NOTARYPUBIiC—MlhJtieSOTA S � R.4MSEY COUNTY � � MyCotnm.ExPiresJen.31.2D00 COURT OF APPEALS NUMBER CX-97-953 /3 : City of Saint Paul City Attorn.ey's Office 4oQ City Iiall Saint Paul, Minnesota 55102 FAX #: 298-5619 FAR TR�.NSMIZ°PAL COVER SHEET DATE: TO: EROM: January 6, 1997 Administrative Law Judge Rita McCOAaell Peter Pangbom, St. Paul City Attorney's Office phone: 266-8776 NDMBER OP PAGES {INCLUDING COVER SHEET}: 6 COMMENTS: g7-y�-�� `` January b, 1997 Administrative Hearing for E. � K. Corporation d/b/a Checker's Nite Club Attached is a copy of St. Paul Legislative Code �409.26 pertaining to presv.mptive penalties for violations involving St. Paul licensed establishments with liquor licenses. CONFIDENTIALITY NOTICE: THE DOCVMEN`T(S? ACCOMPANYING THIS FAX CONTAIN CONFIDENTIAL INFORMATIOI3 WHICH IS LEGALLY PRIVILEGSD. THE INFORMATIOAT IS INTENDED ONLY FOR THE USE OF THE INTENDED RECIPIENT NAMED ABOVE. IF YOU ARE ISOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTSFIED THAT ANY DISCLOSIIRE, COPYING, DISTRISVTION OR THE TAKING OF 11NY ACTION IN RELIANCE ON TIiE CONTENTS OF THIS TELECOPIED INFQRMATION EXCEPT ITS DIRECT DELIVERY `PO THE INTENDED RECIPIENi' NAMED ABOVE IS STRICTLY PROHIBITED. IF YOV HAVE RECEIVED THIS FAX IN ERROR, PLSASE N�TIFY US IMMEDIATSLY BY TELEPHONE TO ARR�NGE FOR RETURI3 OF THE ORIGINAL DOCL3MENTS TO US. WkiOb : T S L6. 90 NFlf ZA'� 5��s"9b66 Ol 3JIdd0 S�t3NJ011tl J,lIJ W02J� 6£:0T L66t-9e-NCf �� 1 ■ ■ ■I � COURT OF APPEAT,S NUMBER CX-97-953 § 310.15 !3 97-y�7 LEGISL9TIVE CODE definition in section 310.01, shall for the purpose of this section include the individual partners or members of any partnership or corporation, and as to corporations, the oflicers, agents or mem- bers thereof, who shall be responsible for the violation. (Code 1956, § 510.15) Sec. 310.16. Reserved. Editor's note--Section 310.16, pertaining tu license fees and aanusl incmases, sad derived from Ord. No. 16885, adopted Feb. 11, 1982; Ord. tio. 11059, adopted Oct 20,1983; and Ord. No. 17303, adopud Oct. 29, 1985, �as repealed by Ord. No. 17884, § 1, adopted \*ov 19, 1991. Sec. 310.17. Licensee's responsibiIity. Any act or conduct by any clerk, employee, manager or agent of a licensee, or 6y any person providing entertainment or woridng for or on behalf of a licensee, whether compensated or not, which act or conduct takes place either on the licensed premises or in any pazking lot or other area adjacent to (or under the lease or control ofl the licensed premises, and w}uch act or conduct violates any state or federal statutes or regula- tions, or any city ordinance, shall be considered to be and treated as the act or conduet of the licensee for the purpose of adverse action against all or any of the licenses held by such licensee. Tb the e�ctent this section is in conflict with sections 409.14 and 410.09 of the Legislative Code, this section shall be controlling and prevail; but shall not otherwise amend, alter or afi'ect such sections. (Ord. No. 17629, § 1, 1-31-89) Sec. 310.18. License fee schedule. Notwithstanding the provision of any other ordinance or law to the contrary, the following fees are hereby provided for all the licenses listed herein. These fees supersede all inconsistent pra visions, including, but not limited to, graduated fee provisions, in these chapters and in other ordinances and laws, and include the fee for the license application as part of the license fee; provided, however, that this section does not amend or modify sections 310.09(a) or 310.09(d) of the Legislative Code �cith respect to exempt orga- nizations or late fees. Pursuant to section 310.09(b) of the Legislative Code, these schedules shall be posted in the office of the director of the office of license, inspections and environmental protec- tioa. These fees shall be effective for license renewals and new license applications occurring on and after January 1, 1995, or on the effective date of this section, whichever is later; provided, however, that with respect to all licenses whose renewal dates xcur after the effective date of this new schedule, there shall be no increases in, nor offsets or refunds of, the e�sting fees paid, or due 3IId OW1IIg. (a) ENFORCEMENT LEVEL 1 Chapter/Seciion No• License Deuription Fee 167 Commereial Vehicle $66.00 198.04 Keepiag of aaimals (F.xotic pets) 66.00 316 Animal Foods Management & Dis- tribution 66.00 319 Amusement Rides 66.00 323 Christmas ZYee Sales 66.00 325 Close Out Sale 66.00 327 Dry Cleaaiag Pickup Station 66.00 332 Liquid Fuel Vehiele 66.00 333 Solid Fuel Vehicle 66.00 336 Private Fuel pump 66.00 340 Mereantile Broker 66.00 345 Peddler (Solicitor/h�ansient) 66.00 348 Reatal of Clothing & Vehicle � ' 66.00 349 Reatel of Clothes Attire Vehicle 66.00 350.02 Reatal of Hospital Equipmeat 66.00 350.02 Rental of Hospital Equipment Ve- hicle 66.00 351 � Rental oC Kitchenware 66.00 353 Rollu Riaks 66.00 355.01 Sewadhaad Dealer- ' (a) & @) Siagle Locatioa 66.00 357.03 Refuse Hauler-Each Vehide Over Oae 66.00 359 Sound TYvcks & Broadcast Vehi- cles 66.00 371 Finishing Shop 66.00 361.14 Tbw 1Y�uck/4Precker Vehicle 66.00 362 TYee 1Yimmer-Additional Vehicle 66.00 372 TSre Ftecapping Plant 66.00 376.16{d) Taxicab Driver (new) 66.00 377 Iawa Fertilizer & Pesticide Ap- plication 66.OQ 380 _ Tanning Facility 66.00 382 Pet Grooming 66.00 409.11 Outdoor Chsage in Service Area 66.00 412 \2assage Center (Class B) 66.00 414 :�3assage Therapist 66.00 924.02 Gasoline Filling Stations 66.00 � "�, :_:`j �-� Supp, No. 33 2036 COURT OF APPEALS I� a NUMBER CX-47-953 ! > 7 � 7 g 409,25 LEGISL9TNE CADE committee registered under Miaaesota Statutes, Seetion IOA..I4, may obtain an on-sale ficense to sell cvine and strong beer nut ezeeedistg faurtzen (14) percent alcohal bgvolnme for �+n++nption on the licensed pxemises only fihe fee for sush li- eense shall be estabiished by ordinance as pro- vided in seetion 310.09(b) afthe Legislative Code, and lieenses shall be issued for periods not to exeeed three (3) eonsecutive days. No orgaaiza- tion or politieal committee shsll be granted more than three (3) lieenses withm a twelve-moath period. No more than three (3) such licenses may be granted for any one (1) locatioa within the city. (b) Liquor Zieenses. NoLwiths'tanding any other provisioa of this ehapter, a club or charitable, religious oz ather aonprofit organization in exis� ence for at least three (3) years may obtaia on-sale license to sell iatoxicating liquor for con- sumption on the licensed premises oaly and ia connectioa with a soeial event within the city sponsored by the licensee. The lieease may pro- vide that the lieQnaee may contract for into�cat ing liquor catering services with the hoider of a full year on-eale intoxieatng liquor lioense issued by the aty. The fee for such ficease sfiall be fortywne dollars ($41.001 Per day and shall be issued for not more than three (8) ceasecutive days. No organizatioa shall be granted more thsn 8ve (5) snch liceases per calendas year. tc) Applicatfion. Application for such temporary licenses shall be made on forms provided by the inspector aad shall coatain sueh iaformation as speafiedbytheinspector, iaeludiagthefollowing. (1) The nazae, address and purpose of the organization, tagether witl� the names and addresses of its vfficers, and evidence of aonpzofit status or of its status as a club uader sectiws 409A2 above. (2) The gurpose for which the temporary li- eease is sought, together with the place, dates and hours during which wiae or intofficating liquor w� be sold. (3) Consent of ttie owaer or manager of the premises or person or group with lawful responsibility for the premises. (4) �idence that the managez or director has xeceived alcohol awareness Lrarning pm vided hy a bona fide instructor ar the tity. Slipp. Na 34 (� Applie¢tiorz of other provisions of fhis ch¢p- fer. No other provisions aFthis chapter shall aPP�Y to lisenses granted vader ehis seetia�, eacept sections 4Q9.Ofi, 409.07, 409A8 (egcept elauses (113 and {12)), and seetions 409.09 thzough 409.i4. (e) Class II Zicense. Notwitl�standing any other provisioa of law to the crontzarg, the temporary Wine and liqaor liceases provided in this section shall be administered as a Ctass II license and subject to the provisions of these chapters govern- ing Class II licenses. The inspector shall make a]1 referrals as provided by section 310.03, but the director may require theinspector toissue such licestse before receivfng any recommendations on the applieation thezeof if necessary to issue such license on a timely basis. (Ord. No.17459, § 1, 5-28$7; Ord. No.17569, § 4; $-7-58; Ord. No. 17853, $ 1, 7-18-91; C.F. No. 941561, $ 2, 11-I&44} Sec. 40526. Iatoxicating liquor, nonintoffi. cating malt liqnor; presumptive penalties. (a) Purpose. '1`he purQose of this seetioII is to establish a standard by which the city covneil determines the length of license suspensions and the propriety of zevocations, sad shall app�y to all oa-sale and off-sale lieensed premises for both intosioatiag 3iquor under this chapter aad aonin- tofficatiag liquor under Cbapter 410. 3'hese pen- alties are presumed to ba appropriate fcr every ease; however the eouacii maY deviste therefrom ut aa individual case where the eouacil finds aad determiaes 'lhat there effist snbstaniial aad com- pelling reasons making it more appropriate to do so. When deviatiag from these standards tbe eouncil sball pravide written reasons that specify why the penatty selected was more appropriate. (b) Pres�smp£ive penalties for aiolat�orzs. Ad- verse penalties for convictions or violations shall be presumed as follows (unless speci5ed, aum- bers below iadieate consecutive days' suspension): 2I94.4 Wti07:iT L6. 90 NFir zct'a 6AZS9b66 Ol 3�Idd0 SJ.3Na011ti J,lI� WObd 6£:0i L66T-90-NFif COURT OF APPEALS NUMBER CX-97-453 ^� !3 q�-�>� rsc�s Appear¢nee Type of V'wlation Ist 2nd 3rd (� Commissioa of a felony related to the li• Revocation NA NA censed activity. (2) Sale of alcoholic heverages while Ii�nse Revocation 1�*A NA is aader suspension. �—� � Svpp. No. 24 WtiOb : T Z L6. 90 Ntif sA � � 6AZ��6 Ol 2194.5 4th NA NA § aosss : 3J1��0 SA3N?1011ki J.lI� Wd�J� 0b:6S L65S-90-NHf �.. CNUMBER C X 9 E9 S �� 9 7 7 _, Type of Vwlatioa. (3) Sale of aloaholic be�*erages to undeaage pCT80A. (4) Ssle of almholic beverage to iatofficated person. (�) Af�er hours eale of almholic beverages. (6) After houzs dispIay or consumption of al- cokolio be�erage. Refu.,at tq sllow city inspeetors or police admission to inspecE premises. Illegal gambling on premises. Fail to take reasanable steps to stop petson fram leaving premises with aIco- holiC beverage. Failure to make application for Iicense renewal prior to license expiration date. (li) 3ale of iatoaicating liquor where only li- cense is for nonintoscating Iiquor. (12) Failure to tomp�y with statutary, and or dinanee zequirements for liab�7itq insur- aace. (7) (S) (9) (10) LIC�NSES APPea'¢nte Ist 2nd 3rd 4th $ 40926 I 1 1 1 5 1 1 -,-. 6 1S Revocation F) SS REVOC2t2077 � 6 18 Revocation 4 12 Ztevotation Rar those violatio='is which occur ia on-sale in- toxieafing liquor establishments ]isted above in numbers (3), [4), (6), (6), (8), (9), i10) snd (11), the couaci7, m&y in its disaetioa impose a fine in Iieu of a suspension oa the first appearance, in a�r dance with the following schedvle wfiose amouats are presumptively appropriate: Seating capacity 0-99 . . . . . . . . . . $ 500.00 Seating capacity 1Q0-149 . . . . . . . 1,000.00 Seating capacity 150-199 . _ . . ... 1,500.00 Seati.ng capacity over 200 . . . . . . . 2,000.00 For those vioIations which occur in off-saIe in- toxicating liquor establishments listed above in numbezs (3), (4), f�?, (6), (8), (9), t10) and i21), the eoundi may in its discretion impose a fine in lieu of a suspension on the fizst appeazance, in accor Supp. No. 21 WtiOb : I T L6. 90 Ntir b�l•.-1 F�R7S'9b�,F, Ol 15 Rzvo- NA cation 6 I8 Revocation 4 12 Revocation 6 18 Revocation 1 6 18 Revocation 10 Revo- NA NA cafion dance with the following scl�edule, whoae amounts are presumptively appzapriate, based on the square footage of the retail area of the establish- ment: 2,000 squase feet arIess......._. $ 500_00 2,001-5,000 square feet. . .. . . . _ . 1,QOO.OQ 5,001-10,000 square feet.....__. 1,a00_00 10,001 squara feet or more_ ...... 2,000.00 tc) Mutiipie aiotafion.s. At a licensee's'first ap� peszance before the city council, the wuncil shall consider and set upon all the vioiations that have been alleged andlor incorporated in the notices sent to the licensee under the administrative pro• cedures act up to and including Lhe formal notice of hearing. The council in that case shall.mnsider the presumptive penalty for each such, 4iolation 2195 3J1��0 SA3N21011tl �lIJ W6�� 0b:0Z L66S-90-NHS COURT OF APPEALS NUMBER CX-9�-953 � ao�as /3 g� LEGISLA7NE CODE under the "IBtAppearanoe" co2utnn in para�aph (b) above. The occartp�sce of multiple violatioas shail be g:vuads for deparEure from sueh penal- ties ia the coaaeil'8 discretion, Violatiotts occurring afFzr the date of the notice of hearing t�at are brought to the atf,esstion of the dty attorneq prior to the hearing date befcrn an adminisfxative law judge (or before Lhe eouncil in an uaeontested Paeks hearinpa may be added to t�e notice(s) by stipvlation if the licensee adauts to the fads, sad shall in that case be treated as though part of the "lst Appearance." In all other cases, violations occurring at�er the date of tbe formal notice of hearing shall be the subject of a sep2rate pzoceeding and dealt a-iih as a"2nd AppeaTanee" before the council. The eame grocedures shall apply to a second, third or fourth appearance before Ehe council. td? Subser1uen.t appearances Upon a second, third or fourth appearance before tbe wuncii by a partiCUlar licsasee, the oouncil shall impese the presumptiva penalty for the violation or viola- tions giviag rise to the subsequent appeazance without regatd to 'the particuiar violation os vio- lations that were the subject of the fust or prior appearance. (e) Computation of lime (1) If a licensee appears before tbe muncil for aoy violatiian ia pasagraph (b) where that violation has oceurred.vithin eighEeen I18) ealendas montbs af�er tlte fitst appeataace ofthe sa,me Iieerisee for a violatian listed ia paragaph (b) above, the eurrent appear• ance s�all be treated as a seeond appear- ance for the puxpose of determuiing the pre svmptive penalty. (2) If a liceasee has appeared befoze the council on two (2) previous oeeasions, both Sor vio- lations Iisted ia paza�aph (b) abave, and if said licensee again appears before the council far a violation Iisted i� said para- graph (bl, and if the current �zolation oc- cusred wifhin thirty (30) calendar months of the violation that gave rise to the first appee.-aace before the touncil, then the cur- rent appearance sha12 be treated as a thizd Supp. No. 21 appearance for the purpose of determiniag Pre�mPfive PenaltF• (3) If a licensee has appeared before the �timdi on chree (3) previous nassiona, each Sor vi olations listed in paragraph (b) above, and if said licensee again appears before the couneil for a vioIatioh Iisted in para�aph (b} above, and if the �urrent vioiation oa curred within forty-ei�hht (48} calendar monlha of the violation that gave rise to the firsE appearanee, then the current ap. pearance shall be treafed as a fourth ap� pearance for the purpose oidetermining the presumptive penalty. (4) Any appearance not covered by subsections (1), (2) or (8) above shall be treated as a first appe$rance. In case of multiple ��olafao�s in any appearance, the dste to be used to measure whether eighteen (181, thirty (30) or forty-eiglrt {48} months has elapsed shall be the date of the vioIation last in time at the fint appesrance, and the date of the vio2ation fust in time at any subsequent appeaxance- (fl OtTzerpen.aities. Nothing in this settion shall restritt oz limit the suthority of the council Lo suspeud up to sixty (60) days, revoke the lieense, ar �npose a civil fine not W easeeed two thousand doliazs ($2,000.00), to impose eonditions or take as�y atfier adverse action in accordance with Iaw, provided, ihat the license holder has been a{;'arded aa opportunity for a hearing in the mgnner pro- vided foi in Section 310.05 of this Code. {gY Efject of responsible businrss practices in de- terntinirzgperzalty. In determiningthe appropriate penalty, the council may, in its discretion, con- sider evidence submitted to it in ihe case of un- contested adverse actions oz submitted to a hearing examiner in a crontested hearing upon which find� � ings af fact have been made that a licensee has folIawed or is likely to iollow in the future respon- sible business practices in regard to sales to in• toxicated persons and sales to miaors_ il) Ror the purposes of sen to intoxicated persons, e.�idence of responsible bvsiness praetiees may iaelude, but is nos limited to, 2?96 we0b:ii ze . 90 Ntlf SR'rI F,G2£9b66 Ol 3JI��0 SJ.3N2J011tl J.lIJ W02i� Tb:OT L66Z-96—Ntif � �--. �cExsrs f3 `�7-�l� § �ia.oi those poliaes, procedures and actions that are implemeated at time ofservice and that: a. Encourage pezsons not tn beoome ia- texieated if they consnme alcoholic bev- erages on the defendant's premises; b_ ptomoEeav�lab�litpofnonalcoholiebev- erages aad food; c. Promote safe ttansportation alterna- tives other thaa driving while intoa-i- eated; d. Prohibit employees and agents of de- fendant from eonsuming alcoholie bev erages while actiag in their capacity aS employee or agents; e. Establish promotions and mazketing ef- forts that pubIicize responsible busi- ness practices to the defendaat's cus- tomers aad community; . f. Imp]ement eomprehensive tra'n'ne pra eQduies; g. ,Maintaia an adequate, Eraiaed num- ber of employeeq and agents for the type and size of defendsnt's business; h. Establish a standardized method for 7�iring quatified employees; i. Reprimand employees who violate em- ployer policies and prxedures; and j. Show that the $censee has enrolled in aecogni2ed coucses providing training to self and one (1) or more emp]oyees of the licensed estabiishment in regard to staadards for responsible fiquor ser vice. (2) Fo�r the purposes of seiroice to minors, evi- dence ofresponsible business practices may include, but is not li.mited to, those listed in subsection (1) and the following: a. Management policies Ehat are imple- mented at the time of service aud that ensure the examination of proof ofiden- ti&cation (as established hy state law) for alI persons seeking service of alco- holic beverages who may reasonably be saspected to be minors; b. Comprehensive training of employees who axe responsible for such exaznina- tion regarding the detection offalse or altered identification; and Supp. No. 30 90 ;d -"-" ^' COURT OF APPEALS NUMBER CX-97-953 c. Enxnllxaeat by the licensee m reeog. nized conrses ptovidin� h�sining to self and aae (1) or mose emplopees of the liceased establishment in regard to standards for responsible liqaor ser- vice. (Ord. No_ 17556, § 1, 425-86; Ord. No. 17657, § 14, 6-8-89; Ord. No. i7675, § 1, 8-22-89; Ord. No. 17694, § 2, 11-7-89; Ord_ No. 17756, §' 1, &7-9fl; Ord. No. 17924, §§ 2, 3, 5-7-92; C.F. I�To. 92-1s29, � 1, 2-9-93) Chapter 410. Noniatofficating Malt Yaquor* Sec. 410.01. Y.icense requixed; definitions; es- ceptions. , (a) No persan shall sell noninto�cating malt liquors at retaiI in Saint Paul without a Iicettse. tb) On-sale licenses shall permit the licensee far the sale of said aoninto�cating malt liquors to sell such for cronsumption on the premises. Oa- saie licenses shall be graated only to restaurants, hotels, bona fide elssbs, establishmeats foT the ea- clusive sale ofnoninta�cating mait bevesages and establishments licensed for the eaclusive sale of into�cating liquars. The term `bona fide clubs" shaR include private clubs licensed under former Chapter 404 o£this Code so long as they meet the requirements of Minnesota Statutes, Section 340A.101, subseetion 7. (c) Off-sale Licenses shall permit the licensee of suth nanintofficai3ng malt Iiquors to sell same in original packages fer consumption off the prem- ises only. (d) Nothingherein contained shall be eonstnied to prohibit the sale and delivery in oripnal pack- ages directly to the eoasumer by the manufac�Eur- er or distributor of nonintoaicatiag malt iiquors. te) No off-saIe license shall 6e issued for any place where aoaintoxicating malt beverages shall be sold for consvmptiou on the premises. •Crosareterence�Liquor and beerregulauons general- ly, Title 74YIV;� inWSi�ting liquor, Ck. 499; use of beer and iato��ating iiqvor pmhibiud in movon pieture drive•fn thr. atres, y 416.O6Sb). 2197 WtlOV : T S L6. 96 Ntif OGI'.-I F.Ia7S"QbF.f� COURT OF APPEALS NLJMBER CX-97-953 �'�:�'� - ;� �yti :�� _ ;� - ;_ ��1: y:: :,.; _ .-: December 30, 1996 STATE OF MINNESOTA OFF'ICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Mianeapolis, Minnesota 55401-2138 Peter P. Pangbom Paralegal City of St. Paul Civif Division 400 City Hall 15 West Keliogg Boufevard St. Paui, Minnesota 55102 g��'�l7 �� RE: Licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the Premises Located at 1066 7th Street East in St. Paul Dear Peter: Per yaur tetter of December 20, 1996, enclosed find the subpoenas you requested for Officer Dean Koehnen and Officer Kenneth Jensen. Sincerely, � �"t._ LOUlSE COOPER Office of Administrative Hearings Telephone: 612/349-2882 enciosure Providing Impartial Hearings for Government and Cifizens An Equal Opportundy Employet Administrative Law Section & Administrative Services (612) 341-7600 � TDD No (612) 341-7346 � Fax No. (612) 349-2665 COURT OF APPEALS NUMBER CX-97-953 ','�....,, � ';vi�;r.::; ' � _ _,_ ��1: y `�, STATE OF MINNESOTA OFFICE OF ADMiNISTRATIVE HEARINGS HEARING SUBPOENA TO: Officer Dean A. Koehnen St. Paui Police Department 100 E. 11th Street St. Paul, Minnesota 55101 GREETINGS: 9�-yi7 15 YOU ARE HEREBY COMMANDED to lay aside ali your business and excuses and to appear befo�e Administrative Law Judge Rita McConneil of the Office of Administrative Hearings of the State of Minnesota, at Room 1503, City Hali Annex, 25 West 4th Street, in the City of St. Paul, Ramsey County, Minnesota, on the 6th day of lanuary, 1997, at �.�3Qo'clock in the forenoon, to appear as a witness in #he matter of Licenses held b�E & K Corporation d/b/a Checker's Nite Club for the Premis�s Located at 1066 7th Street East in St Paul. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kevin E. Johnson, Chief Administrative Law Judge, at Minneapolis, Minnesota this 3 th of December, 1996. �_� � KEVIN E. JO SON Chief Administrative Law Judge 612/341-7600 Subpoena requested by: Peter P. Pangbom (612) 266-8776 COURT OF APPEALS NUMBER CX-97-953 � :}��,...: �,�' '^; ;� _ .�2r. : _ - _��.: y '' STATE OF MINNESOTA OFFICE OF ADMINISTR ATIVE HEARINGS HEARING SLIBPOENA TO: O�cer Kenneth C. Jensen St. Paui Police Department 100 E. 11th Street St. Paul, Minnesota 55101 GREETINGS: 9�-�t7 /5 YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appea� before Administrative Law Judge Rita McConnell of the O�ce of Administrative Hearings of the State of Minnesota, at Room 1503, City Hall Annex, 25 West 4th Street, in the City of St. Paul, Ramsey County, Minnesota, on the 6th day of January, 1997, at 9:30 o'ciock in the forenoon, to appear as a witness in the matter of Licenses h�id by E& K Comoration d/b/a Che ker's Nite Ciub for th Pr mise Located at 1066 7th Street East in St PauV. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kevin E. Johnson, Chief Administrative Law Judge, af Minneapolis, Minnesota this 30th of December, 1996. � � KEVIN E. JOH ON Chief Administrative Law Judge 612/341-7600 Subpoena requested by: Peter P. Pangborn (612}266-8776 COURT OF APPEALS �� OFFICE OF TFIE CITY ATTORNEY NUMBER CX-97-953 r„ao:n E. ,tir�, crty Aao,� �7-LII� CITY OF SAINT PAUL Norm Co7eman, Mayor December 20, 1996 cinit Division 400 City Hall I S West Kellogg Blvd Samt Paul M'vmesom 55702 Telephone: 672 266-8710 Facsimik: 612 2985679 VIA FAX AND U.S. MAIL Judge Rita McConnell c/o Louise Cooper Office of Admiuistrative Heazings 100 Washington Square, Suite 1700 Minneapolis, Minnesota 55401-2138 RE: Licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the premises located at 1066 7th Street East in Saint Paul Dear Judge McConnell: The purpose of fhis letter is to request subpoenas pursuant to Minnesota Rules, part 1400.7000 relating to the above-mentioned contested case hearing that is scheduled to be heard before you on Monday, January 6, 1997. This request is made of behalf of Ms. Virgnua Palmer, the attorney assigned to this matter. The City of St. Pau1 License Division will be calling these witnesses to testify regazding the incident which serves as a basis for the action against the licenses of E. & K. Corporation d!b/a Checker's Nite Club. In order to ensure these individuals will be in attendance to testify, the City of St. Paul requests from the State Office of Administrative Hearings subpoenas for the fo?lowing individuals: 1.) Officer Dean A. Koehnen 2.) 5t. Paul Police Dept. 100 E. l lth Street St. Paul, MN 55101 Officer Kenneth C. Jensen St. Paul Police Dept. 100 E. l lth Street St. Paul, MN 55101 The hearing is scheduled to start at 930 a.m. on Monday, January 6, 1997, in Room 1503 City Hall Annex, 25 West 4th St., St. Paul, MN 55102. COURT OF APPEALS , /� CJ 7— y/� NUMBER CX-97-953 If you need additional information or have any questions regazding flus request, please do not hesitate to ca11 me at 266-8776. Thank you. Sincerel , > � Peter P. Pangborn Paralegal � COURT OF APPEALS '/�f OFFICE OF "I'I-IE CITY ATTORNEY ' NLTMFiER CX-97-953 ! Timothy E Macc. Ciry Aaorney 9 7- '�j? �1 =... .: . -- CIT'Y OF SAINT PA�, �',, Norm Co7eman, Mayar J L� j`�ry, i p�j ?: ^� � i I}..... � - �.,li: - �'e^=��-� ' I ��-J:;:YJ.�. December 10, 1996 Mr. Michael J_ Kalis Ciecker's Nite Club 1066 7th Street East Saint Paul, Minnesota Civil Division 400 Ciry Xall IS Weu Kellogg Blvd Saint Pau� M'nmesota 55701 NOTICE OF HEARING and Mr. Walter H. FnSelhardt 55106 Telephone: 612 266-8710 Facsintile: 612 298-5619 RE: All licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the premises locatad at 1066 7th Street East in St. Paul License ID NO.: 16335 Our File Number: G96-0518 Dear Mr. Kalis and Mr. Engelhardt: Please take notice that a hearing wi11 be held at the following time, date and place concerning all licenses for the premises stated above: Date: Monday January 6, 1997 Time: 9:30 a.m. Place: Room 1503 L'it� $nil s'�a"LT1EX 25 W. 4th St. St. Paul, bII1 55102 The hearing will be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: Name: Rita McConaell Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN. 55401 Telephone: 961-7770 The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse action , COURT OF APPEALS �� g 7 �I l 7 NUMBER CX-97-953 against such licenses, under Chapter 310, including sections 310.05 and 310.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non-intoxicating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action �gainst all the licenses you hold at the above premises as follows: Saint Paul Police Report CN 96-157-804 states that on October 4, 1996 Officer Jensen was sent to Checker's Bar, located at 1066 S. 7th Street, Saiat Paul, and observed a white male daacer with his shotts pulled dowa, exposing his genitals. A patroa had his right hand near or touching the male dancer's genitals. This type of entertainment is in violation of your Entertainment Class 8 license. 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 part5 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 wham 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. Notice of Hearing - Page 2 COURT OF Al'PEALS 1 � C�� —/� f'� NUMBER CX-97-953 �� If you think a stipulation facts, that stipulation will Judge for incorporation int action. or agreement can be reached as to the be presented to the Administrative Law o his or her recommendation for Council If you fail to appear at the hearing, your ability to challenge the 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 objec.*_ion is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. If you have any questions, you can call me at 266-8710. Very truly yours, �`��_� �� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MI3 55401 Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 Notice.of Hearing - Page 3 COL R OF APPEALS )� 7 � _ y �� NLIMBER CX-97-953 t� § 410.04 LEGISL9TIVE CODE A violation of the foregoing shall constitute suffi- cient grounds for adverse action against the li- cense or license application, including revocation or denial of the license. (Code 1956, §§ 310.07-310.10, 310.13, 310.14; Ord. No. 17014, 4-28-83; Ord. No. 17174,10-23-84; Ord. No. 17437, § 1, 2-2487; Ord. No. 17461, § 1, 5-28.- 87; Ord. No. 17474, § 1, 7-7-87; Ord. No. 17657, §§ 11, 13, 6-8-89; Ord. No. 17705, § 3, 1-16-90; C.F. No. 93-1324, § 1, 11-23-93; C.F. No. 941659, § 1, 12-28-94) Sec. 410.045. Safety in on-sale establish- ments. This section applies to on-sale licenses for the sale of nonintoxicating liquor. (a) Notice to police chief. The licensee shall, with- in thirty (30) days following November 4, 1994, notify the chief of police in writing if any firearms as defined in section 225.01 of the Legislative Code are kept on or within the licensed premises. Such notice shall include a description of each such fire- arm and the location where it is kept on the li- censed premises. Thereafter, the licensee shall no- tify the chief of police if there aze any additional firearm or firearms, or changes in the location, number or description of each such firearm listed in the first notice, kept on or cvithin the licensed premises, within five (5) days following any such change. The licensee is responsible for ensuring that the notification given to the chief is updated and accurate with respect to any changes in kind, number or location of fireazms kept on or within the licensed premises. (b) Tr¢ining. The licensee shali, with respect to all employees who (1) are authorized to use a fire- arm on the licensed premises and (2) who aze not prohibited by law from using such a firearm, pro- vide training in fireanns safety and the lawful use of deadly force, as well as in procedures for main- taining arder and peace on the licensed premises by methods other than use of firearms andlor dead- ly force. The training required by tlus subsection shall be acceptable to the chief of police and pro- vided for all existing employees within ninety (90) days foliowing November 4, 1994, and for future employees within sixty (60) days following their employment. (C.E No. 94-859, § 3, 10-5-94) Sec. 410.05. Certain seaual conduct prohib- ited. The following acts or conduct on licensed prem- ises are unlacvful and shall be punished as pra vided by section lA5 of the Saint Paul I.egislative Code: (1) To employ or use any person in the sale or service of alcoholic beverages in or upon the licensed premises wlule such person is un- clothed or in such attire, costume or cloth- ing as to egpose to view any portion of the female breast below the top of the azeola or of any portion of the pubic hair, anus, cleft of the buttocks, wlva or genitals. (2) To employ or use the services of any hostess while such hostess is unclothed or in such attire, costume or clothing as described in subparagraph (1) above. (3) To encourage or permit any person on the licensed premises to touch, cazess or fondle the breasts, buttocks, anus or genitals of any other person. {4) To permit any employee or person to wear or use any device or covering exposed to view which simulates the breast, genitals, anus, pubic hair or any portion thereof. (5) To permit any person to perform acts of or acts which simulate: a. With or upon another person sexual in- tercourse, sodomy, oral copulation, flag- ellation or any seaual acts which aze prohibited by law. b. Masturbation or bestiality. c. With or upon another person the touch- ing, cazessing or fondling on the but- tocks, anus, genitals or female breast. d. The displaying of the pubic hair, anus, vulva or female breast below the top of the azeola. (6) To permit any person to use artificial de- vices or inanimate objects to depict any of the prohibited activities described above. (7) To permit any person to remain in or upon the licensed premises who exposes to pub- lic view any portion of his or her genitals or anus. Supp. No. 30 2202 �� _--. � �� COURT OF APPEALS NUMBER CX-97-953 LICENSES (8) To permit the showing of films, still pic- tures, pictures, electronic reproductian or other visual reproductions depicting: a. Acts or simulated acts of se%ual inter- course, masturbation, sodomy, bestial- ity, oral copulation, $agellation or any seguai acts which are prohibited by law. b• Any person being touched, cazessed or fondled on the breast, buttocks, anus or genitals. c. Scenes wherein a person displays the vulva or the anus or the genitals. d. Scenes wherein artificial devices or in- animate objects are employed to de- pict, or drawings are employed to por- tray, any of the prohibited activities described above. (Code 1956, § 310.19) Sec. 410.06. R,estrictions on licenses. Where a reasonable basis is found by the coun- cil to impose reasonable restrictions upon a li- cense held under this chapter, the council, upon issuing a new license or renewing a license, may impose reasonable conditions and restrictions per- taining to the manner and circumstances in which the business shall be conducted to preserve the public peace and protect and promote good order and security. These reasonable conditions or re- strictions may pertain to: (1) A limitation as to the hours when nonin- tofficating malt liquor may be sold and/or consumed on the licensed premises; (2) A limitation and restriction as to the exact location within a building where nonintox- icating malt liquor will be served and/or sold andlor consumed• (3) Alimitation and restriction as to the means of ingress to or egress from the licensed es- tablishment; (4) A requirement that certain off-street park- ing faciLities be provided; (5) A condition that the license wiil be in effect only so long as the establishment remains primarily a restaurant; Supp. No. 30 2202.1 ♦ � ��v�� § 410.07 (6) A limitation and restrietion as ta the means and methods of advertising the sale of non- into�cating malt liquor on the building and/ or the premises adjacent thereto; (7) Reasonable conditions iimiting the opera- tion of the licensed premises so as to ensure that the licensed business will comport with the character of the district in which it is located and/or to the end that nuisances will be prevented. (Code 1956, § 31020(b); C.F. No. 95-479, § 2, 5-31- 95) Sec. 410.07. Transfer of license; change in service azea. (a) No license granted hereunder shall be trans- ferable from person to person or from place to place. I3o license granted for a specified part of any particular premises shall permit sales of such liquor on a part of such premises not specified in the license, or in an azea adjacent to such licensed premises; provided, however, that the lieense in- spector or his or her designee may waive this lim- itation and allow a temporary eatension of the liquor service area subject to the following criteria herein established by the city council. Failure to make a waiver and/or allow such a temporary eg- tension is not adverse action and does not require notice and hearing in the event of denial or inac- tion: tl) No such extension shall be for more than a continuous twenty-four-hour period and shall be valid oniy at times that liquor sales aze allowed by law; (2) No licensee shall receive more than tcvelve (12) such service estensions in any calen- daz yeaz; (3) The temporary extended sexvice azea can be either indoors or outdoors, but must be immediately adjacent to the licensed prem- ises; (4) All business operations on or in the tempo- rary extended service area shali be in com- pliance with all other requirements of state law and of this chapter, and in particular shall comply with the requirements of Chap- ter 293 of this Legislative Code ielating to noise; �� -`=� .� �: COURT OF APPEALS rIUMBER CX-97-953 LICEA'SES � § 411.03 or furnish or permit another who is leasing, rent- ing or using with or without consideration the li- censed premises to provide or furnish entertain- ment on the lieensed premises without firsthaving obtained a license to do so as hereinafter provid- ed. The provision or furnishing of entertainment without such a license, whether by the licensee or by persons using, renting or leasing the licensed premises, shall be grounds for adverse action against all the licenses held at and for the li- censed premises. It shall not be a defense in an adverse action against the licenses held at and for the licensed premises that the licensee was not awaze or did not know of the provision of such enterainment by persons renting, leasing or using the licensed premises. The license for each class of license provided for in this chapter is a sepazate license, and all the requirements of this chapter for obttuning a license must be met even though the licensee holds or has held a different class license hereunder. (b) Limit¢d entert¢inment Zicense. A person li- censed under Chapter 409 or Chapter 410 may obtain a limited Class A or B license without com- plying with the consent requirements under sec- tion 411.04(b) of this chapter, as further provided in section 411.04(b)(5), (b)(6) and (b)(7) below, and such license shall be limited to permitting anoth- er who is leasing, renting or using the licensed premises, with or without consideration, to pro- vide or furaish entertainment on the licensed premises for a wedding, anniversary or retire- ment dinner or reception, or similaz family or so- cial function. (c) Extended hours. T4�e holder of an extended service license under sections 409.07.1 or 410.04(c) of the Legislative Code is subject to the regula- tions defined therein and may provide entertain- ment during the hours of extended service, but only in conformity with and as authorized by an e�sting entertainment license issued under this chapter. Notwithstanding any other provision of law, the eouncil may, at any time and with respect to any estabiishment, condition or prohibit the provision of entertainment during the hours of er.tended service (i) in order to protect the public peace, welfare and safety, so long as such condi- tions or prohibitions do not relate to the content of Supp. No. 28 the entertainment, and (ii) without notice and hearing, or compliance with any of the procedures provided in Chapter 310 of the Legislative Code. (Code 1956, § 311.01; Qrd. No. 179�1, § 4,1-1492; Ord. No. 17924, § 1, 5-7-92; C.F. No. 92-1799, § 1, 12-22-92; C.F. No. 941660, § 1, 12-28-94) Sec. 411.02. License classification. Any person desiring to provide entertainment on the licensed premises must obtain an enter- tainment license of the applicable type as herein- after provided: Class A-Amplified or nonamplified music and/ or singing by one (1) to three (3) per- formers, and group singing participat- ed in by patrons of the establishment. Class B-All activities allowed in Class A, plus amplified or nonamplified music and/ or singing by perFormers without lim- itation as to number, and dancing by patrons to live, taped or electronically produced music, and which may also permit volleyball and broomball paz- ticipated in by patrons or guests of the licensed estabiishment plus stage shows, theater, and contests. In all of the activities in Classes A and B, all of the participants, including patrons, shall be fully clothed at all times. Class C-All activities aliowed in Classes A and B, plus performance by male or fe- male performers without limitation as to number, where ciothing is minimal but in compliance with Chapters 409.09 and 410.05 of the Legislative Code. (Code 1956, § 311.02; Ord. No. 17434, § 2, 2-3-87; Ord. No. 17633, § 2, 3-7-89; Ord. No. 17901, § 5, 1-14-92; C.F. No. 92-1799, § 1, 12-22-92; C.F. No. 94-1660, § 2, 12-28-94) Sec. 411.03. Fee. The annual license fees for Class A, B and C entertainment licenses shall be established by or- dinance as specified in section 310.09(b). (Code 1956, § 311.02; Ord. No. 17434, § 2, 2-3-87; Ord. No. 17633, § 2, 3-7-89; Ord. No. 17901, § 6, 1-14-92; C.F. No. 92-1799, § 1, 12-22-92; C.F. No. 94-1660, § 3, 12-28-94) 2202.3 97-yr7 ,,� � COURT OF APPEALS NUMBER CX-97-953 (b) Class II Zicenses. Vv'here an application for the grant, issuance or reneccal of a Class II license meets all the requirements of law, and there e�sts no ground for denial, revocation or suspen- sion of, or the imposition af conditions upon, such license, the director shall grant, issue or renew said license in accordance �sith the application. (c) Class I and Class II iicenses, if denied by direcfor. in the event the director, in the case of both Class I and Class II licenses, determines that the application for grant, issuance or re- newal of the license does not meet all the require- ments of law or that there effist grounds for denial, revocation, suspen;ion or other adverse action against the license or the licensee, the director shall recommend denial of the applica- tion and foliow the procedures for notice and hearing as set forth in secrion 310.05. (d) Class 777 Zicenses. (1) Grant, issuance or transfer. Upon receipt of a fully completed application and required fees for a Class III license, and after the investigation required, the director shall notify the council. A public hearing shall be held on the grant or issuance of all Class III licenses. In any case where the director recommends denial of the grant, issuance or renewal of a Class III iicense, br where the council believes that there is evidence which might result in action adverse to the original or renewal application, the direc- tor on his or her oticn initiative, or at the direction of the council, shall follow the pmcedures for notice and hearing as set forth in section 310.05. Where the applica- tion for the grant, issuance or renewal of a Class III license meets all the require- ments of law, and where there e�sts no ground for adverse action, the council shall by resolution directthat the director issue such license in accordance with law. (2) Renewal. The director shall in �criting no- tify the council, and the affected neighbor- hood organization(s) established for citizen participation purposes, at least sixty (60) days before the e�cpiration date of all Class III licenses. A public hearing on the re- newal of any such license shall not be held Supp. No. 33 � I LICEI.'SES �'�-- �//7 $ 310.05 eacept on the request of a councilmember, which request shall be incorporated in the form of a council resolution. Upon the pas- sage of such resolution, the director shall give written notice of such hearing to the affected neighborhood organizations. Such public hearing�does not repiace or amend any of the procedures set forth in section 310.Ob of the Legislative Code. If no re- quest for a public hearing is made before the espiration of any such license, and where there e�cists no ground for adverse action, the director shall issue the license in accordance with law. (e) Appeal; CZass I or Class II licenses. An appeal to the city council may be taken by any person aggrieved by the grant, issuance or re- newal of a Class I or Class II license; provided, however, that the appeal shall have been filed with the city clerk rvithin thirty (30) days after the action by the director. The only grounds for appeal shall be that there has been an error of law in the grant, issuance or renewal of the license. The appeal shall be in writing and shall set forth in particular the alleged errors of law. The council shall conduct a hearing on the appeal within thirty (30) days of the date of filing and shall notify the licensee and the appellant at least ten (10) days prior to the hearing date. T'he proce- dures set forth in section 310.05, insofaz as is practicable, shall apply to this hearing. Following the hearing, the council may aflirm or remand the matter to the inspector or director, or may reverse or place conditions upon the license based on the councii's determination that the decision was based on an error of law. The filing of an appeal shall not stay the issuance of the license. (fl No waiver by renewal. The renewal of any license, whether Class I, II or III, shall not be deemed to be a waiver of any past violations or of any grounds for imposition of adverse action against such license. (Code i956, § 510.04; Ord. No. 17455, § 1, 5-21-87; Ord. No. 17551, § 1, 4-19-88; C.F. No. 94-500, § 1, 7-6-94; C.F. No. 9b-473, § 3, 5-3i-95; C.F. No. 95-1517, 1-31-96) Sec. 310.05. Hearing procedures. (a) Aduerse action; notice and hearing require- ments. In any case _ where the council may or 2027 COURT OF APPEALS �� 9 �� y� 7 NUMBER CX-97-953 ¢ 330.05 LEGTSI.pTtVE CODE intends to consider anp adverse action,inciuding the revocatioa or suspension of a Iicense, the imposition of rnnditions upon a license, or the denial of an application for the grant, issuance or renewal of a license, or the disapproval of a license issued by the State of Minnesota, the applicant or licensee shall be givea notice and an oppoitunity to be heazd as pro��ded herein. The council may consider such adverse actions when recommended bq the inspector, by the director, by the director of any eaecutive depar�ent estab- lished pursuant to Chapter 9 of the Charter, by the city attomey or on its own initiatiae. (bj Notice. Ia each such case where adverse action is or �cill be considered by the council, the applicant or licensee shall have been notified in writing that adverse action may be t�ken against the license or application, and that he or she is entitled to a hearing before acHon is taken by the couacil. The notice shail be sen�ed or mailed a reasonable time before the hearing date, and shall state the piace, date and time of the hearing. The notice shall state the issues involved or grounds upon which the adverse action may be sought or based. The council may request that such written notice be prepazed and served or mailed by the inspector or by the city attomey. (c) Hearing. Where there is no dispute as to the facts underlying the violation or as to the facts establishing mitigating or aggravating circum_ stances, the hearing shall be field before the conncil. Othenvise the hearing shall be conducted before a hearing eaaminer appointed by the coun- cil or retained by contract with the city for that purpose. The applicaat or the licensee shall be provided an opportunity to present e�zdence and az'gument as weII as meet adverse testimony or evidence by reasonable C70SS-PTaminghOII and rebuttal evidence. The hearing eaaminer may in its discretion permit other interested persons the opportunity to present testimony or evidence or otherwise participate in such hearing. (c-1) Procedure; hearing ex¢miner. The hearing egaminer shall heaz all evidence as may be pre- sented on behalf of the city and Yhe applicant or licensee, and shall present to the council written findings of fact and conclusions of law, together with a recommendation for adverse action. The councit shall consider the evidence con- tained in the record, the hearing examiaer's rec- ommended findings of fact and conclusions, and shall not cansider any factuat testimony not pre- viously submitted to and considered by the hear- ing egaminer. After receipt of the hearing examiner's findings, conclusions, and recommen- dations, the council shall pro�zde the applicant or licensee an opportunity to present oral or written arguments alleging error on the part of the exam- iner in the application of the law or interpretation of the facts, and to present argumeat related to the recommended adverse action. IIpon conclu- sion of that hearing, and after considering the record, the eacaminer's findings and recommenda- tions, together with such additional azguments presented at the hearing, the council shall deter- mine what, if any, adverse action shall be taken, which action shall be by resolution. The council may accept, reject or modify the findings, conclu- sions and zecommendations of the hearing exam- ine:: (c-2) Ex-parte contacts. If a license mattez has been scheduled foz an adverse hearing, council members shall not discuss the license matter K�ith each other or with any of the parties or interested persons involved in the matter uniess such dis- cussion occurs on the record during the hearings of the matter or during the council's final deliber- ations of the matter. No interested person shall, with knowledge that a license matter has been scheduled for adverse hearing, convey or attempt ta convey, oraIly or in writing, any inf'ormation, argument or opinion about the matter, or any issue in the matter, to a council member or his or her staff untii the council has taken finai action on the matter, provided, however, that nothing herein shall prevent an inquiry or communica- tions regazding status, scheduling or procedures concerning a license matter. An interested person, for the purpose of this paragraph, shall mean and include a person who is an officer or employee of the licensee which is the subject of the scheduled adverse hearing, or a persoa who has a financial interestin such licensee. (d) Licensee or applicant may be represented. The licensee or applicant may represent himself " or choose to be represented by another. �� Supp. No. 33 2028 µ;� COURT OF APPEALS NUMBER CX-97-953 i 97-yi7 LICENSFS (e) Recor� evidence. The hearing eaaminer shall receive and keep a record of such proceedings, including testimony and exlubits, and shall re- ceive and give weight to e��idence, including heaz- say evidence, which possesses probative calue com- monly accepted by reasonable and prudent persons in the conduct of their a$'airs. (fl Council action, resolution to contain fxnd- ings. Where the council takes adverse acfion with respect to a license, licensee or applicant for a license, the resolution by which such action is tak- en shall contain its findings and determination, including the imposition of conditions, if any. The council may adopt all or part of the findings, con- clusions and recommendations of the hearing ex- aminer, and incorporate the same in its resolution taking the adverse action. (g) Additional procedures where mquirnd. Where the provisions of any statute or ordinance require additional notice or hearing procedures, such pro- visions shall be complied with and shall super- sede inconsistent provisions of these chapters. This shall include, without limitation by reason of this specific reference, Minnesota Statutes, Chapter 364 and Minnesota Statutes, Section 340A.415. (h) Discretion to hear notwithstanding with- drawal or surrender of application or Zicense. The council may, at its discretion, conduct a hearing or direct that a hearing be held regazding revocation or denial of a license, notwithstanding that the applicant or licensee has attempted or purQorted to withdraw or surrender said license or applica- tion, if the attempted withdrawai or surrender took place aftzr the applicant or licensee had been notified of the hearing and potential adcerse ac- tion. (i) Continuanc¢s. 4�'here a hearing for the pur- pose of considering revocation or suspension of a license or other disciplinary action involcing a li- cense has been scheduled before the council, a continuation of the hearing may be granted by the council president or by the council at the request of the licensee, license applicant, an intsrested person or an attorney representing the foregoing, upon a showing of good cause by the party making the request. Supp. I3o. 30 2029 § 310.05 (j) If the council imposes an adverse action as deSned in section 310.01 above, a generic notice of such action shall be prepazed by the license in- spector and posted hy the licensee so as to be vis- ible to the public during the effective period of the adverse action. The licensee shall be responsible for taking reasonable steps to make sure the no- tice remains posted on the front door of the li- censed premises, and failure to take such reason- able precautions may be grounds for further adverse action. (k) Imposition of costs. The council may impose upon any licensee or license applicant some or all of the costs of a contested hearing before an inde- pendent hearing examiner. Ttie costs of a contest- ed hearing include, but aze not limited to, the cost of the administrative law judge or independent hearing examiner, stenographic and recording costs, copying costs, city staff and attomey time for which adequate records have been kept, rental of rooms and equipment necessary for the hear- ing, and the cost of expert witnesses. The council may impose all or part of such costs in any given case if (i) the position, claim or defense of the licensee or applicant was frivolous, azbitrary or capricious, made in bad faith, or made for the pur- pose of delay or harassment; (ii) the nature of the violation was serious, or involved violence or the threat of violence by the licensee or empioyees thereof, or involved the sale of drugs by the lic- ensee or employees thereof, and/or the circum- stances under which the violation cecurred were aggravated and serious; (iii) the violation created a serious danger to the pubiic health, safety or welfare; (iv) the violation involved unreasonable risk of harm to vulnerable persons, or to persons for whose safety the licensee or applicant is or was responsibie; (v) the appiicant or licensee was sufficiently in control of the situation and there- fore could have reasonably avoided the violation, such as but not lunited to, the nonpayment of a required fee or the failure to renew required in- surance policies; (vi) the violation is covered by the matrix in section 409.26 of the Legisiative Code; or (�zi) the violation involved the sale of cigarettes to a minor. (1) Imposition of fines. Tlie council may unpose a fine upon any licensee or license appiicant as an adverse license action. A fine may be in such. COURT OF APPEALS ,^ 9 7—� L{ )� NUNIBER CX-97-953 � § 310.05 LEGISL�.T'IVE CODE amount as the couacil deems reasonable aad ap- propriate, having in mind the zegulatory and en- forcement purposes embodied in the particuiar li- censing ordinance. A fine may be ia addition to or in lieu of other adverse action in the sole discre- tion of the council. To the extent any other pro��i- sion of the Legislative Code pro�zdes for the im- position of a fine, bo£h provisions shall be read together to the extent possible; provided, howev- er, that ia the case of any con$ict or inconsistency, the other provision shall be controlling. (Code 1956, § 510.05; Ord. No.17551, § 2, 419-58; Ord. No. 17559, §§ 1, 2, 5-17-88; Ord. ?�o. 17659, § 1, 6-13-89; Ord. No. 17911, § 1, 3-10.92; C.F. No. 94-46, § 7, 2-2-94; C.F. No. 94-898, y�§ 2, 3, 7-13-94; C.F. No. 94-1340, § 2, 10-19-94; C.F. ?�o. 95-473, § 4, 5-31-95) Sec. 310.06. Revocation; suspension; adverse actions; imposition of condi- tions. (a) Council may take adverse action. T'he coun- cil is authorized to take adverse action, as defiaed in section 310.01 above, against any or all licenses or permits, licensee or applicant for a license, as provided in and by these chapters. Adverse ac- tions against entP*+��*+n+ent licenses issued under Chapter 411 of the Legislative Code may be initi- ated for the reasons set forth in subsection (b) below, or upon aay lawful grounds which are com- municated to the license holder in writing prior to the hearing before the council. Such actions shall be initiated and carried out in accordance with the procedures outline in section 310.05; provid- ed, however, that the formal notace ofhearing shall be used to initiate the adverse action without the use of prior procedural steps. (b) Basis for action. Such adverse action may be based on one (1) or more of the following rea- sons, which are in addition to any other reason specifically provided by law or in these chapters: (1) The license or permit was procured by mis- representation of material facts, fraud, de- ceit or bad faith. (2) The applicant or one (1) acting in his or her behalf made oral or written misstatements or misrepresentations of material facts in or accompanying the applicatitrn. (3) The license was issued in violatioa of any of the pro�zsions of the Zoning Code, or the premises which are licensed or which are to be licensed do not comply vcith applicable heatth, housing, fire, zoning and building codes and regulations. (4) The license or permit was issued in viola- tion of law, wzthout authority, or under a material mistake of fact. (5) The licensee or applicant has failed to com- ply with any condition set forth in the li- cense, or set forth in the resolution grant- ing or renewing the license. (6) a. 1`he licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has violated, or performed any act which is a violation of, any of the provisioas of these chapters or of any statute, ordi_ nance oz regulation reasonably related to the licensed activ'sty, regazdless of whether criminal charges have or have not been broughtin connection there- with; b. The licensee or applicant has been con- victed of a crime that may disqualify said applicant from holding the license in question under the standards and procedures in Minnesota Statutes Chapter 364; or c. The licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has engaged in or permitted a pattern or practice of conduct of faiIure to comply with laws reasonably related to the li- censed activity or from which an inf'er- ence of lack of fitness or good character may be drawn. (7) The activities of the licensee in the licensed activity created or have created a serious danger to the public health, safety or wei- faze, or the licensee performs or has per- formed his or her work or activity in an unsafe manner. (8) The licensed business, or the way in which such business is operated, maintains or per-_ .� .'•�� Supp. No. 30 2030 COURT OF APPEALS NUMBER CX-97-953 § 310.05 LEGISLATIVE CODE amount as the council deems reasonable and ap- propriate, having in mind the regulatory and ea- forcement purposes embodied ia the particulaz li- eensing ordinance. A fine may be in addition to or in lieu of other adverse action in the sole discre- tion of the council. To the extent any other provi- sion of the Legislative Code pro�-ides for the im- position of a fine, both pruvisions shall be read together to the extent possible; pro�ided, howev- er, that in the case of any conflict or inconsistency, the other provision shall be controlling. (Code 1956, § 510.05; Ord. No.17551, § 2, 419-88; Ord. No. 17559, §§ 1, 2, 5-17-88; Ord. No. 17659, § 1, 6-13-89; Ord. No. 17911, § 1, 3-10-92; C.F. ?�70. 9446, § 7, 2-2-94; C.F No. 94-696, §§ 2, 3, 7-13-94; C.F. No. 94134Q § 2, 10-19-94; C.E \o. 95-473, § 4, 5-31-95) Sec. 320.06. Revocation; suspension; adverse actions; imposition of condi- t10IIS. (a) Council may take adverse action. The coun- cil is authorized to take adverse action, as defined in section 310.01 above, against any or all licenses ar permits, licensee or applicant for a license, as provided ia and by these chapters. Adverse ac- tions against entertainment lirenses issued ander Chapter 411 of the Legislative Code may be initi- ated for the reasons set forth in subsection (b) below, or upon any lawful grounds which aze com- municated to the license holder in Fcriting prior to the hearing before the council. Such actions shall be initiated and carried out in accordance with the procedures outline in section 310.05; pro��id- ed, however, that the formal notice ofhearing shall be used to initiate the adverse action vrithout the use of prior procedural steps. (h) Basis for ¢ction. Such adverse action may be based on one (1) or more of the fo2Jowing rea- sons, which aze in addition to any other reason specifically provided by law or in these chapters: (1) The license or permit vc�as procured by mis- representation of material facts, fraud, de- ceit or bad faith. (2) The applicant or one (1) acting in his or her behalf made oral or written misstatements or misrepresentations of material facts in or accompanying the application. I y7- y� � (3) The license was issued ia violatioa of any of the provisions of the Zoning Code, or the premises which aze licensed or which aze to be licensed do not comply with applicable health, housing, fire, zoning and building codes and regulations. (4? The license or permit was issued in viola- tion of law, without authority, or under a material mistake of fact. (3) The licensee or applicant has failed to com- ply with any condition set forth in the li- cense, or set forth in the resolution grant- ing or renewing the license. (6) a. T'he licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has violated, or performed any act which is a ti�iolatioa of, any of the provisions of these chapters or of any statute, ordi- nance or regulation reasonably related to the licensed activity, regazdless of whether criminal chazges have or have not been brought in connection there- with; b. The licensee or applicant has been con- victed of a crime that may disqualify said applicant from holding the license in question under the standards and procedures in Mianesota Statutes Chapter 364; or c. The licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has engaged ia or germitted a pattern or practice of conduct of failure to comply with laws reasonably related to the li- censed activity or from which an infer- ence of lack of fitness oz good character may be drawn. (7) The activities of the licensee in the licensed activity created or have created a serious danger to the public health, safety or wel- faze, or the licensee performs or has per- formed his or her work or activity in an unsafe manner. (8) The licensed business, or the way in wliich such business is operated, maintains or per- :=':�. '� : Supp. No. 30 2030 ,� .: :^;`, :,`-:: �::,� COURT OF APPEALS NUMBER CX-97-953 (10 (11) � � 9�-yi7 LICENSES mits conditions that unreasonably annoy, injure or endanger the safety, health, mor- als, comfort or repose of any considerable number of inembers of the public. (9) Failure to keep sideccallcs or pedestrian ways reasonably free of snow and ice as required under Chapter 114 of the Saint �aul Leg- islative Code. ) The licensee or applicant has shou 6y past misconduct or unfair acts or dealings: phys- ical abuse, assaults or violent actions done to others, including, but not limited to, ac- tions meeting the definition of criminal sex- ual conduct pursuant to ?VIinnesota Stat- utes Sections 609.342 through 609.3451; sexual abuse, physical abuse or maltreat- ment of a child as defined in Minnecota Stat- utes Section 626.556, subdivisions 2 and 10e, inciuding, but not limited to, acts which con- stitute a violation of'�SSinnesota Statutes Sec- tions 609.02, subdivision 10; 609.321 through 6Q9.3451; or 617246; neglect or en- dangerment of a child as defined in ?VIinne- sota Statutes Section 826.5b7, subdivision 2; the manufacture, distribution, sale, gift, delivery, transportation, eschange or baz- ter of a controlled substance as defined in Minnesota Statutes Chapter 152;the pos- session of a controlled substance as defined in Minnesota Statutes Chapter 152 in such quantities or under circumstances giving rise to a reasonable inference that the pos- session was for the purpose of sale or dis- tribution to others; or by the abuse of alca hol or other drugs, that such licensee or applicant is not a person of the good moral character or fitness required to engage in a licensed activity, business or profession. The licensee or applicant has materially changed or permitted a material change in the design,construction or configuration of the licensed premises ccithout the prior ap- provai of the city council in the case of Class III licenses, the director in the case of Class II licenses, and the incpector in the case of Class I licenses, or without first ha��ing ob- tained the proper building permits from the city. , Supp. ?Jo. 30 2031 § 310.06 (12) The licensee or applicant has violated seo- tion 294.01 of the Legislative Code, or has made or attempted to make a prohibited ex parte contact with a council member as pro- vided in section 310.05(c-2) of the Legisla- tive Code. 'I`he terms "licensee" or "applicant" for the pur- pose of this section shall mean and include any person who has any interest, whether as a holder of more than five (5) percent of the stock of a cor- poration, as a partner, or othercvise, in the prem- ises or in the business or activity which aze li- censed or proposed to be licensed. With respect to any license for activities entitled to the pmtection of the FirstAmendment, notwith- standing the foregoing provisions, neither the lack of good moral character or fitness of the licensee or applicant nor the content of the protected speech or matter shall be the basis for adverse action against the license or application. (c) Imposition of rnasonable conditions and/or restrictions. When a reasonable basis is found to impose reasonable conditions andlor restrictions upon a license issued or held under these chap- ters, any one (1) or more such reasonable condi- tions and/or restrictions may be imposed upon such license for the purpose ofpromotingpublic health, safety and welfaze, of advancing the public peace and the elimination of conditions or actions that constitute a nuisance or a detriment to the peace- ful enjoyment of urban life, or promoting security and safety in neazby neighborhoods. Such reason- able conditions and/or restrictions may include or pertain to, but are not limited to: (1) A limitation on the hours of operation of the licensed business or establishment, or on particulaz types of activities conducted in or on said business or establishment; (2) A limitation or restriction as to the location within the licensed business or estabiish- ment whose [sic] particular type of activi- ties may be conducted; (3) A limitation as to the means of ingress or egress from the licensed establishment or its paziflng lot or immediately adjacent area; (4) A requirement to provide off-street pazking in excess of other requirements of law; ° COURT OF APpEALS NUMBER CX-97-953 $ 310.06 i LEGISL9TIVE CODE (5) A limitation on the manner and means of advertising the operation or merchandise of the licensed establishment; C6) Any otfier reasonable condition or restrio- tion limiting the operation of the licensed business or establishment to ensure that the businesS or establishment wi11 hazmo- nize with the character ofthe azea in �rhich it is located, or to prevent the development or continuation of a nuisance. The inspector may impose such conditions on Class I licenses with the consent of the license holder, or may recommend the imposition of such conditions as an adverse action against the license or licens- es; the inspector has the same po�cer �ith respect to Class II licenses. The council may impose such conditions on Class III licenses �rith the consent of the license holder, or upon any class of ]icense as an adverse action against the license or licens- es follocving notice and hearing as may be re- quired. Such conditions may be imposed on a li- cense or licenses vpon issuance or renecral thereof, or upon and as part of any adverse action against a license or licenses,including suspension. Con- �litions imposed on a license or licenses shall re- maia oa such licenses when renewed and shaIl �°ntinue the�'eafter until removed by the council in the case of conditions on Class III licenses or conditions imposed by adverse action, aad by the �P�or in the case of Class I and II licenses. ' (d) Standards for multiple Zicense determinQ_ t��+- In any case in which the council is autho- rized to take adverse action against less than all of the licenses heid by a licensee, or appIied for by � applicant, the following staadards may be used: (1) The nature and gravity ofthe grounds found by the council to exist upon which the ad- verse action wotild be based; (2) The policy andlor regulatory goals for the particulaz licenses involved, either as em- bodied in the Legislative Gode or as found and determined by the council; �3) The interrelationship of the licenses and their relative importance to the overall busi- ness enterprise of the licensee or applicant; (4) The management practices of the licensee or appiicant e�ith respect to each of such licenses; . (5) The eatent to which adverse action against less thaa all of the licenses or applicatians would result in difficulty in enforciag and monitoring the adverse action taken; (6) The hazdship to the licensee or applicant that would be caused by applying adverse action'to all licenses or applications; and (7) The hazdship and/or danger to the public, or to the public health and welfare, thst would result from adverse action against less than all of the licenses or applications. (Gode 1956, § 510.06; Ord. No.17584, § 1, 8-25-8g; Ord. ?�*o. 17657, § 15, 6-8-89; Ord. No. 17659, § 2, 6-13-89; Ord. No.179�1, §§ 2, 3,1-1492; Ord. No. 17917, §§ 2, 3, 3-31-92; Ord. No. 17922, § 2, •!-Zg_ 92; C.F. No. 94500, § 3, 7-6-94; C.F. No. 941340, § 3, 10.19-94; C.E No. 95-473, § 5, 5-31-95) Sec. 310.07. Terminatioa of licenses; surety bonds; insurance contracts. (a) Automatic termin¢tion, reinstatement; r¢_ sponsibility of Zicensee. AA licenses orpermits which must, by the provisions of these chapters or other ordinances or laws, be accompanied by the filing and maintenance of insurance policies, deposits, guarantees, bonds or certifications shall automat- ical2y terminate oa cancellation oz withdra�yai o{ said policies, deposits, bonds or certifications. No Iieensee may continue to operate or perform the licensed activity after such termination. The lic- ensee is liable and responsible for the filing and ma�ntenance of such policies, deposits, guaraa_ tees, bonds or ceriifications as are required in these chapters, and shall not be entitled to assert the acts or omissions of agents, brokers, employees, attorneys or any other persoas as a defense or justification foz failure to comply with such filing and maintenance requirements. In the event the licensee reinstates and files such policies, depos- its, bonds or certifications within thirty (30) days, 2he license is automatically reinstated on the same *srms and conditions, and for the same period as origina.Ily issued. After thirty (30} days, the appli- cant must reapply for a renewal of his license as though it were an original application. (b) Bonds and insurance requirements: (1) Surety Companies: All surety bonds run- ning to the City of Saint Paul shali be writ- �� .,� : �;;.i Supp. ?�;o. 30 2�32 9�-y/� If you need additional information or have any questions regarding this request, please do not hesitate to call me at 266-8776. Thank you. Sincerel , : J� �� Peter P. Pangbom Pazategal . t((�.E� f ^� g .< Presented By Council File # (�� Green Sheet # �� RESOLUTION CITY OF SAINT PAUL, MINNESOTA �G Referred To � Committee: Date 1 � 2 3 4 5 WHEREAS, the City of Saint Paul, O�ce of License, Inspections and Environmental 6 Protection brought an adverse action against the licenses held by E& K Corporation d/b/a 7 Checker's Nite Club, for the premises located at 1066 East 7th Street, alleging a violation of 8 their Entertainment Class B license; and 9 10 WHEREAS, on.or about December 10, 1996 the licensee was duly notified that a 11 hearing had been scheduled before an Administrative Law Judge on January 6, 1997; and 12 13 WHEREAS, the licensee did not appeaz at the January 6, 1997 heazing and the 14 Administrative Law Judge declazed the licensee to be in default and took the matter under 15 advisement on the e�ibits presented by the City; and 16 17 WHEREAS, the Findings of Fact, Conclusions and Recommendation of the 18 Administrative Law Judge dated Februazy 13, 1997 were served on the Councii of the City of 19 Saint Paui, with copies sent to the licensee; and 20 21 WHEREAS, a public hearing was held on April 2, 1997 to consider the 22 Recommendation, at which time the licensee did appeaz and presented testimony in opposition 23 to the Findings and Conclusions of the Administrative Law Judge; NOW, THEREFORE BE 24 IT 25 26 RESOLVED, that the City Councii of the City of Saint Paul, after due deliberation 27 based upon all the files, records and proceedings herein, including the documents and exhibits 28 submitted to the Administrative Law Judge, the Findings of Fact, Conclusions and 29 Recommendation issued subsequent thereto, and the arguments of the licensee at the public 30 hearing, does hereby adopt and incorporate herein by reference the Findings of Fact and 31 Conclusions of the Administrative Law Judge. 32 33 FURTHER I2ESOLVED, that the Recommendation is amended to reflect the 34 Council's discussion of the seriousness of the violation, and the licensee is hereby ordered to 35 pay a fine of Three Thousand Dollazs ($3,000) within thirry (30) days of the adoption of this 36 resolution. 37 38 FURTFIER RESOLVED, that licensee shall pay the costs of the hearing before the 39 administrative law judge based upon the determination that the defense of the Licensee in this 40 matter was frivolous, arbitrary and capricious. 41 ��- �i > STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 February 13, 1997 City Clerk Saint Paul City Council 386 City Hall 15 West Kellogg Blvd. Saint Pau1, Minnesota 55102 Re: The Licenses held by E. & K. Corporation, dJb/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota File No. 80-2111-10861-6 Dear City Clerk: Enclosed for service upon the Saint Paul City Council are the Findings of Fact, Conclusions of Law and Recommendation for the above-referenced matter. A copy of this Report has also been served this day on Virginia Palmer of the Office of the City Attorney and Walter Englehardt on behalP of the licensee. Sincerely, ! 'ta A. McConnell inistrative Law Judge cc: Ms. Virginia Palmer Mr. Walter Engelhardt Providing Impartal Hearings for Government and Citizens An Equal Opport Employ Administrative Law Section & Administrative Services (8}2) 341-7600 � TDD No. (612) 3A1-7346 � Fax No. (612) 348-2665 9�- �i� STATE OF MINiVESOTA OFFIC.E OFADMINiSTRATR'E HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 9 February 13, 1997 Ms. Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Rellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Ralis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 Re: The Licenses of E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota File No. 80-2111-10861-6 Dear Ms. Palmer and Gentlemen: Enclosed for service upon you please find a copy of the Findings o£ Fact, Conclusions of Law and Recommendation in the above-captioned matter. A copy has also been served this day upon the City Clerk. Sincerely, / / � ( 1�� ita A. McConnell Administrative Law Judge yCC: City Clerk Providmg Impartiai Neanngc for Government and Q6z.ens An Equal Opportunity Employer Adinu�istiatioe Law gection & Adnnnistrativ? Servic?s !>�2! ?4'I. i �00 • TDD No (612) 341-7346 � Fax fJo (512) 349-2F>65 9 7- �/� 7 STATE O�' MINNESOTA OFFICE OF ADMINISTRATIi7E HEARINGS FOR THE CITY OF SAINT PAUL In re the Licenses held by E. & R. Corporation, d/b/a Checker's 23ite Club 1066 7th Street East, Saint Paul, Minnesota 80-2111-10861-6 FINDINGS OF FACT CONCLUSIONS OF LAW AL3D RECOMI�NDATIOI3 The above-entitled matter came on for hearing before Administrative Law Judge Rita A. McConnell on January 6, 1997 at 9:30 a:m., in Room 1503, Saint Paul City Hall Annex, 25 West 4th Street, Saint Paul, Minnesota, 55102. The record closed on January 6 at the close of the hearing. Virginia D. Palmer, Assistant City Attorney, appeared on behal£ of the City of Saint Pau1, Of£ice of License, Inspections and Environmental Protection (LIEP). No representative appeared on behalf of the license holder. Notice is hereby given that this Report is a recommendation only and not a final decision. The Saint Paul City Council will make the final decision. After a review of the record, it may adopt, reject, or modify the Findings of Fact and Recommendations contained herein. Pursuant to Saint Paul Legislative Code Section 310.05, the City Council will provide each party adversely affected by this Report to present oral or written argument alleging error in this Report and present arguments to the Council related to any recommended adverse action. Parties should contact the City Clerk, Saint Paul City Council, 386 City Hall, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. 9�-�� STATEMENT OF ISSUES 6 1. Whether licensee permitted sexual acts or conduct on the licensed premises in violation of Section 410.05 0£ the Saint Paul I,egislative Code. 2. Whether licensee provided on the licensed premises entertainment that is permitted only under a Class C license. 3. Whether licensee should be assessed the costs of the contested hearing on the grounds the licensee's de£ense was frivolous, arbitrary or capricious. Based upon all the files, records and proceedings herein, the Administrative Law Judge makes the £oliowing: FINDINGS OF FACT 1. Licensee E. & R. Corporation (Licensee) holds a variety o£ licenses for the business it operates as Checkers Nite Club at 1066 7th Street East in Saint Paul. Included in those licenses is a Class B Entertainment license. The premises is licensed for 150 seats. City's Exhibit No. 2. 2. On October 4, 1996, Saint Paul Police Officers Dean Roehnen and Kenneth Jensen £iled Police Reports indicating they were dispatched to Checkezs Nite Club in the early hours of October 4 where they observed a male employee of the Club dancing in briefs or underwear. Officer Jensen's report indicated the dancer's genitals were exposed and that a patron had his hand on or near the genitals during the dance. City's Exhibit No. 1. 3. By letter dated October 25, 1996, Assistant City Attorney Virginia Palmer notified the Licensee that the conduct described above violated the Saint Paul Legislative Code and formed the basis for adverse action against the licenses. City's Exhibit No. 3. � 9�-yi) 4. On November 4, 1995, Liceasee through its stockholder Walter Englehardt responded to the Palmer's letter. In that response, Englehardt stated as follows: _ This is what the Of£icer saw when he walked into the bar. The male dancer for the night was wearing a pair of Calvin Rlein boxer shorts, under the boxer shorts the dancer was wearing a gold almost flesh colored T-back. (This is something like a jock strap with the front and rear covered.) The officer observed a white male dancer with his shorts pulled down, the o£ficer did not see the T-back and assumed the genitals were exposed. City's Exhibit No. 4. 5: In response to Englehardt's letter, Palmer advised the Licensee that the conduct admitted in the letter was not permitted under an Entertainment Class B license and offered Licensee the option of proceeding to an administrative hearing or resolving the matter short of a hearing. City's Exhibit No. 5. 6. LiCensee did not respond to Palmer's Novembez 20 letter. Accordingly, on December 10, 1996, Palmer sent Licensee a notice of the hearing held on January 6, 1997. City's Exhibit No. 6. 7. The license fee for a Class C Entertainment License is $1,600.00. The fee paid by Licensee for a Class B Entertainment License was $500.00 8. Neither Walter Engelhardt nor any other representative appeared on behalf of the Licensee at the scheduled hearing. Based upon the foregoing, the Administrative Law Judge makes the following: CONCLUSIONS 1. The Administrative Law Judge City Council have jurisdiction in this and the Saint Paul matter pursuant to 3 9�-yr`� Minn. Stat. Section 14.50 and Saint Paul Legislative Code Sections 310.05 and 310.06. The Licensee received timely and proper notice of the hearing of this matter. _ 2. The Saint Paul Legislative Code provides for adverse action against a licensee i£ a licensee fails to comply with any condition set forth in the license, or if the licensee violates a provision of the Code. Saint Paul Legislative Code Section 310.06(b)(5) and (6). 3. Under a Class B Entertainment license, the Licensee is authorized to provide entertainment in which "all o£ the participants...[are} fully clothed at all times." Saint Paul Legislative Code Sec. 411.02, Class B. In order to provide entertainment which includes performers who are not fully clothed, Licensee is required to obtain a Class C license which permits clothing that is "minimal but in compliance with Chapters 409.09 and 410.05 of the Legislative Code." Saint Paul Legislative Code Sec. 411.02, Class C. 4. Saint Paul Legislative Code Section 410.05 contains several sections which prohibit the exposure of genitals by employees or patrons on licensed premises, including section (1) which prohibits the "employ...[of] any person in the sale or service of alcoholic beverages in or upon the licensed premises while such person is unclothed or in such attire, costume or clothing as to expose to view any portion of the ... genitals." 5. The Licensee is in default herein under Minn. Rule 1400.6000 as a result of its failure to make an appearance at the heazing. 6. Pursuant to Minn. Rule 1400.6000, the allegations set out in the Notice and Order for Hearing may be taken as true and deemed proved without further evidence when a party defaults. 7. The City has established that the Licensee provided entertainment in which the participants were not fully 4 9� clothed in violation of the conditions oE a Class B Entertainment license. 8. The violation of the conditions of the Class B = license was intentional and witflout regard to the limitations on that category of license as set £orth in the Saint Paul Legislative Code. 9. The defense of the Licensee in this matter was frivolous, arbitrary and capricious, justifying the 1lIl position of the costs of the hearing on Licensee. Based upon the foregoing Conclusions, the Administrative Law Judge makes the £ollowing: RECOMMENDATION IT IS HEREBY RECOMMEENDED that the Saint Paul City Council take adverse action against the licenses of E. & R� Corporation by assessing a fi e in the amount of ^�-Thre-e- 3, coo, ou Thousand ^; �,� '• "^' , "-"' ( � and requiring the licensee to pay the costs of the administrative hearing. " Dated this 13th day of k'ebruary, 1997. �� l[,� ` � it� A. McConnell )� � n I\ A nistrative Law Judge � (�/ cl- C1 r Reported: Taped, not transczibed. NOTICE The Saint Paul City Council is requested to serve a copy of its final decision upon the Administrative Law Judge as well as the parties by £irst class mail. 5 q�-�� MEMORANDUM The allegations set forth by the City in its Notice of Hearing establish�a violation of that Section of the Saint Paul Legislative Code ("the Code") which prohibits certain sexual conduct on licensed premises. Since the Licensee did not appear at the hearing, these allegations may be taken as true. The Licensee did, however, respond to the allegations in writing prior to the hearing, establishing a basis for its defense in this matter. In addition, the police officers who allegedly observed the prohibited conduct also £ailed to appear at the hearing. Consequently, the record alone does not establish a violation of Section 410.05 of the Code. The facts which are accepted as true are those admitted in the letter from Licensee's representative. The letter's description of the dancer's costume indicates the dancer was wearing a flesh colored jock strap, and was dancing with his boxer shorts pulled down. From this description, it is reasonable to conclude that the dancers was 'not "fully clothed," but was rather wearing "minimal" clothing during the entertainment. Such costuming is permitted only with a Ciass C license under Section 411.02 of the Code. Providing such entertainment with only a C1ass B license is a violation of the conditions in the license and the provisions of Section 411.02. The City Council is permitted to impose a fine upon the licensee in an amount it deems reasonable and appropriate under the circumstances. Saint Paul Legislative Code Section 310.05(1). The Code sets forth certain presumptive penalties £or Code violations by on-sale licensed premises. The council is allowed to deviate from those penalties "where the council £inds and determines that there exist substantial and compelling reasons making it more [� �'7-4i7 appropriate to do so.° Saint Paul Legislative Code Sec. 409.26. The Code does not specify a presumptive penalty for the - type of violation at issue in this matter. It does, however, indicate that a fine of $1,500.00 is presumptively appropriate for a£irst violation by a licensed premises with a seating capacity of 150. LIEP argues this penalty is insuf£icient since the Licensee already saved $1100.00 in licensing fees by paying for a Class B rather than a Class C license. In order to penalize Licensee for this violation, LIEP suggests the assessment of a$2,000.00 fine. Although the evidence supports the conclusion that Licensee disregarded the restrictions on its license, that disregard does not appear so flagrant as to justify imposition of a penalty in the amount requested. LIEP's request overlooks the $500.00 already paid by the Licensee for the Class B license. If the presumptive penalty is imposed, the Licensee will pay the City a total of $2,000.00, thereby incurring expenses of $400.00 beyond the amount it would have paid for an appropriate license. This amount, together with the imposition of the hearing costs, is a sufficient penalty in light of the violation. R.A.M. 7 97-- �,r� � STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 1Q� Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 March 21, 1997 Fred Owusu City Clerk 1Z0 City Hall 15 W. Kellogg Blvd. St. Pauf, MN 55102 Re: In the Matter of the License heid by E& K Corporation d/bla Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota ; OAH Docket No. 80-2111-10861-6 Dear Mr. Owusu: On February 13, 1997, Administrative Law Judge McConnefi. Served the Findings of Fact, Conclusions and Recommendation in the above-entitled matter. Enclosed is the official record, inciuding a copy of the tape.recording of the hearing. If Our file in this matter is now being closed. Very truly yours, �� Ll�/� %�� , �'io�-�� i N�ncy M. Thomas Docket Clerk Telephone: 612l341-7615 NT Enc. Providing Impartial Hearings for Government and Citizens An Equal Opp dkiini ty Empioy Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 9 �- yi7 AFFIDAVIT OF SERVICE BY MAIL Rita A. McConnell, of the City of St. Paul, County of Ramsey, in the State of Minnesota, being duly sworn, states that on the 13th day of February, 1997, she served the annexed Findings of Fact, Conclusions of Law and Recommendation, upon the individuals named below by mailing to them a copy thezeof, enclosed in an envelope, postage prepaid, and by depositing same in the U.S. Mail at Saint Paul, Minnesota as £ollows: Ms. Virginia D. Palmer Assistant City Attorney 400 Gity Hall 15 West Kellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Kalis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 City Clerk Saint Paul City Council 386 City Hall 15 west Kellogg Blvd. Saint Paul, MN 55102 FURTHER AFFIANT SAYETH NOT. �C�.�-P� a.ta A. McConnell Subscribed sworn to befo e me �� day o£ February, 1997. No ary u lic ..rr..«�..«..�.... � STEVEN F. NkATTAINI NOTpflY PUBLIC -MINNESOTA RAMSEY CAUN7Y �hCmm�nwa��m�.2oao STATE OF n'IINNESOTA OFFICE OFADM17INISTRAT[VE IIEARINGS 100 Washington Square, Suite ]700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 /%� � February 13, 1997 Ms. Virginia D. Palmer Assistant City Attorney 400 City Hall 15 47est Kellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Kalis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 Re: The Licenses of E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota File No. 80-2111-10861-6 Dear Ms. Palmer and Gentlemen: Enclosed for service upon you Findings of Fact, Conclusions the above-captioned matter. A this day upon the City Clerk. cc: City Clerk please find a copy of the of Law and Recommendation in copy has also been served Sincerely, , = __ ��ry2�� ita A. McConnell Administrative Law Judge � 7- y� i Providing Impartial Hearings for Government and Citizens An Eq�a Opportu Employer Adminicpa�we Lew Sechon & Ad�ninistraUve Serviros (f 12! 341-7500 � TDD No (6121 341-7346 • Faz IJo (612) 349-2665 STATE OF n'IINNESOTA ❑FFICE OF ADMINISTRATTVE IIEARINCS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 �� , 9�-yf� February 13, 1997 City Clerk Saint Paul City Council 386 City Hall 15 west Kellogg Blvd. Saint Paul, Minnesota 55102 Re: The Licenses held by E. & K. Corporation, d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota File No. 80-2111-10861-6 Dear City Clerk: Enclosed for service upon the Saint Paul City Council are the Findings of Fact, Conclusions of Law and Recommendation for the above-referenced matter. A copy of this Report has also been served this day on Virginia Palmer of the Office of the City Attorney and Walter Englehardt on behalf of the licensee. Sincere�y, - �%��-� �-�� ' � ,.�-;, ftYta A. McConnell Administrative Law Judge cc: Ms. Virginia Palmer Mr. Walter Engelhardt Prowding Impartial Heanngs for Government and Citizens An Equal Opportunity Employer Adrninistrative Law Sechon & n,dministrabve Services B12? 349-7500 • TDD No (6?2) 341-7346 � Fax No (512) 349-2665 97 I7 '� OFFICE OF ADMINISTRATIVE IiEARINGS FOR TFiE COIINCIL OF THE CITY OF SAINT PAIIL In re the Licenses a£ E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East CITY'S PROPOSED EXIiIBITS January 6, 1997 TO: Judge Rita McConnell, Administrative Law.Judge, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401 The following constitutes a list of the City's proposed exhibits for the Administrative Hearing on January 6, 1997. Exhibit No. Exh. No. 1 Description St. Paul Police Report CN 96-157-804, dated October 4, 1996 (2 pp.); Exh. No. 2 License information regarding E. & K. Corporation d/b/a Checker's Nite Club (1 p.); Exh. No. 3 Notice of Violation letter dated October 25, 1996, with Affidavit of Service (3 pp.); Exh. No. 4 Exh. No. 5 Exh. No. 6 Letter from Walt Engelhardt to Virginia Palmer dated November 4, 1996 (2 pp.); Letter from Virginia Palmer to Walter Engelhardt dated November 20, 1996 (1 p.); Notice of Hearing letter dated December 10, 1996, with Affidavit of Service (4 pp.). g7-�i � Also attached please find courtesy copies of applicable St. Paul City ordinances: St. Paul Legislative Code § 310.05 St. Paul Legislative Code § 310.06 St. Paul Legislative Code § 310.17 St. Paul Legislative Code § 410.05 Respectfully submitted this 6th day of January, 1997. � X � �/.%/29'tM.,GC'..�.J , 0.-!" ✓h-e� Virgi a D. Palmer Assistant City Attorney Office of The City Attorney 400 City Aall 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 {612)266-8710 97--�fI� Lic ZD......•••••........ STAT.....••• ............. Business Name.....,...... Doing Business As........ Address .................. Zip -•• ................... Exp Date ................. License Name ............. NOTE AREA ................ s 7/17/90 CHANGE OF BUSINESS NAME PER RESOLUTION SIGNED BY ROBERT KESSLER 062591 PH ON APPN FOR NEW CLASS B GAMBLING LOCATIO 16335 AC E & K CORPORATION CHECKERS NITE CLUB 1066 7TH ST E 55106 04/30/97 LIQ-ON SALE-OVER 100 SEATS-B SUNDAY ON SALE LIQUOR ENTERTAINMENT-CLASS B RESTAURANT (B}-MORE THAN 12 SEATS INSP CHANGE F120M O1 TO 02 ON 3/20/92 10401 150 SEATS 5-5-87 . N LICENSE APP'D C.F. 91-1159 . 5/15/96 -$2,OOO.QO CHECK FOR PARTIAL PAYMENT OF . LICENSE FEES RETURNED "NSF"' - LAB . 6/25/96 HOME ADDRESS INFO OF OFFICERS GIVEN TO Press <RETURN> to continue... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRSNT OFF ° . JOY OF MESHBESAER & SPENCE LAW FIRM.--LAP-LIC . 8/22/96--REC'b PAYMENT FOR $2,000 BAD CHECK - , 'I'�/'�/Q�__Rx:('F!Tili.'T1 7.TCF.NCF! T77�VMFTQT RIlC'K ��TTCFi� 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.. UNIONAMERICA INS CO LL966109 07/31/96 04/30/97 MICHAEL J KALIS WALTER A ENGELHARDT Dealer No ................ Tax Id ................... 5121502 Worker Comp Exp Date..... 04/30/95 Telephone ................ 776-7915 Press 'C' to continue, 'P' to print, or 'R' to redisplay... Alt-Z FOR HELP° VT102 ° F17X ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° � s � In Re the Licenses of E. & K. Corporatio � d/b/a Checker's Nite Ctub ,..�_._ .,_.,_ ,.r_ ., COURT OF APPEALS NLJMBER CX-97-953 �- 9 � a Presented By Referred To Q Council File # � �-�r� Green Sheet # -\�� RESOLUTION CITY OF SAINT PAUL, MINNESOTA �p� Committee: Date WHEREAS, the City of Saint Paul, Office of License, Inspecfions and Environmental Protec6on brought an adverse action against the licenses held by E& K Corporation d/b/a Checker's Nite Club, far the premises located at 1066 East 7th Street, alleging a violation of their Entertaimnent Class B license; and WI�REAS, on or about December 10, 1996 the licensee was duly notified that a heazing had been scheduled befare an Administrative Law Judge on January 6, 1997; and WI�REAS, the licensee did not appeaz at the January 6, 1997 hearing and the Administrative Law Judge declared the licensee to be in default and took the matter under advisement on the exhibits presented by the City; and WHEREAS, the Findings of Fact, Conclusions and Recommendation of ttae Administrative Law Judge dated February 13, 1997 were served on the Council of the City of Saint Paul, with copies sent to the licensee; and WFIEREAS, a public hearing was held on April 2, 1997 to consider the Recommendation, at which time the licensee did appeaz and presented testimony in opposition to the Findings and Conclusions of the Administrative Law Judge; NOW, THEREFORE BE I'T RESOLVED, that the City Council of the City of Saint Paul, after due deliberafion based upon a11 the files, records and proceedings herein, including the docuxnents and e�ibits submitted to the Administrative Law Judge, the Find'mgs of Fact, Conclusions and Recommendation issued subsequent thereto, and the arguments of the licensee at the public hearing, does hereby adopt and incorporate herein by reference the Findings of Fact and Conclusions of the Administrative Law Judge. FURTHER RESOLVED, that the Recommendation is amended to reflect the Council's discussion of the seriousness of the violation, and the licensee is hereby ordered to pay a fine of Three Thousand Dollars ($3,000) within thirry (30) days of the adoption of this resolution. FITIiTHER RESOLVED, that licensee shall pay the costs of the hearing before the administrative law judge based upon the determination that the defense of the Licensee in this matter was frivolous, azbitrary and capricious. 1 �vuxi ur AppEALS NUMBER CX-97-953 � /� �/ % 7 �f 1 2 A copy of this Resolution, as adopted, shall be sent by first class mail to the Licensee and the 3 Administrative Law Judge. Requested by Department of: Adopted by Council : Date � c�3 _��q'� Adoption Certi£ied by Council Secretary BY: �� a . � -�....�M � Approved by Mayor: Date `f'��/``�� By: � By: Form Approved by City Attox'ney % B � 1L� Approved by Mayor for Submission to Covncil By: COURT OF APPEALS NUMBER CX-97-953 , O � - �� - - - ---- ---- ---- � ., ., � u. ° �c�`�"co,�' ° �` ° � � 199 GREEN SHEE CONTACT PEfl50N & PHONE O DEPqqTMENT DIRE ❑ CITY COUNCIL � GladysMorton,266-8670 A��N �CffYqTTORNEY �C17YCLERK MU5T BE ON COUNCIL AGENDA BY (DATE) NUNBEP fQA O BUDGET OIRECTOR � FIN. & MGT SEFVICES DIR. POUiiNG A ri123, 1997 Consent A enda OBDEq � MAVOR (OR AS$I5TANn � TOTAL # OF SIGNATURE PAGES (CLIP ALL LOCATIONS FOR SIGNATURE) ACTION HEQUESTED. Finalizing Ciry Council acuon taken on April 2, 1997, concerning adverse ac6on against licenses held by E& K Corporauon, DBA Checker's Nite Club, 1066 East Seventh Street. RECAMMENDA710NS: Approve (A) or Peject (R) PEFiSONAL SERYICE CONTRACTS MUST ANSWER TNE FOLLOWING �UESTIONS: _ PLANNING CAMMISSION �_ CIVIL SERVICE COMMISSION 1. Has this person/firm ever worKed under a comract for this tlepartment? _ CIB COMMITTEE _` VES NO 2. Has this personlEirm ever been a ciry empbyee? _ STAFF — YES NO _ DIS7RIC7 CoURT _ 3. Does this person/firm possess a skill not normally possessed by any curtent city amployee? SUPPORTS WHICH COUNCIL OBJECTIV�p YES NO Explafn all yes answers on separate sheet end at[aeh to green Sheet INITIATING PROBLEM, ISSUE, OPPOflTUNITV (Who, Wheq When, Where. Why): ADVANTAGESIFAPPROVEO: S �hest U�A. q�, 'Yi"admqi�e. „ _ . . {':. .. .{ ,t ..�u. DISADVANTAGES IF APPROVED. � - DISADVANTAGES IF NOT APPROVED: 70TAL AMOUNT OF 7RANSAC710N $ COST/FiEVENUE BUDGETED (CIRCLE ONE) YES NO FUNDIWG SOURCE ACTNITV NUMBER FINANCIAL INFORM'ATION: (EXPLAIN) C",OURT OF APPEALS NUMBER CX-97-953 CITY OF SAINT PAUL Norm Co[emarz, Mayor March il, 1997 //�,Jj �J OFFICE OF TI� CITY ATTORNEYIjrj _�)n Peg Brrk, Ciry Atforney � � � �3 - Civi! Division 400 Ciry Ha(I I S West Ke77ogg BHd SainlPaul, �nnesata 55/02 Telephone: b12 266-87I0 Facsimik: 6/1 298-5619 NOTICE OF RE-SCIiEDULED COUNCIL HEARING Mr. Walter Engelhardt Checker�s Nite Club 1066 7th Street East Saint Paul, Minnesota & Mr 55106 Michael Kalis Re: Licenses held by E. & K. Corporation djb/a Checker's Nite Club for the premises located at 1066 7th Street East in St. Paul License ID No.: 16335 File Number: G96-O518 Dear Mr. Engelhardt and Mr. Kalis: Pursuant to your request, the public hearing on the report of the Administrative Law Judge concerning Checker's Nite Club has been re-scheduled to 4:30 p.m „ Wednesday, April 2, 1997, in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. Sincerely, �/��.�-� ��-� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 COURT OF App$Aj„$ � OFFICE OF TF� CITY ATTORNEY I`NMBER CX-97-953 Peg Bisk Ciry Aaarney g�- y/7 I�1 CITY OF SAINT PAUL Civi[Divrsion Norm Ca(emm�, Mayor February 20, 1997 Mr. Walter Engelhardt Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota Re: Licenses held by for the premises License ID No.: 400 Ciry Hail IS West Kellogg Blvd Saint Pme� M"mnesot¢ 55102 NOTICE OF COIINCIL HEARING & Mr. Michael Kalis 55106 Telephone: 612 266-8710 Facs�tile: 612 298-5619 E. & K. Corporation d/b/a Checker's Nite Club located at 1066 7th Street East in St. Paul 16335 File Number: G96-0518 Dear Mr. Engelhardt and Mr. Kalis: Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-mentioned license has been scheduled for 4:30 p.m., Wednesday, March 12, 1997, in the City Council Chambers, Third Floor, Saint Paul City Hall 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 wil,l be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Administrative Law 3udge 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, �� ybt�l�2 Virginia D. Palmer Assistant City Attorney Council Research Cenfer � �� 2 u lag7 cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 � �7- �i 7 STATE OF MINNESOTA OFFICE OF ADMINISTRATiVE AEARINGS 100 Washington Square, Suite 1700 COURT OF APpg,r�LS 100 Washington Avenue South NUjy1BER CX-97-953 Minneapolis, Minnesota 55401-2138 February 13, 1997 City Clerk Saint Paul City Council 386 City Hall 15 West Rellogg Blvd. Saint Paul, Minnesota 55102 Re: The Licenses held by E. & K. Corporation, d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota File No. 80-2111-10861-6 Dear City Clerk: Enclosed for service upon the Saint Paul City Council are the Findings of Fact, Conclusions of Law and Recommendation for the above-referenced matter. A copy of this Report has also been served this day on Virginia Palmer of the Office of the City Attorney and Walter Englehardt on behalf of the licensee. Sincerely, ��'�Z� 'ta A. McConnell inistrative Law Judge cc: Ms. Virginia Palmer Mr. Walter Engelhardt Providing Impartial Hearings for Government and Citizens An Equ al Opp E mploy er Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 9�- �i7 STATE OF MINNESOTA OFFICE OF ADMINISTRATiVE HEARINGS 10� Washington Square, Suite 17�0 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 COURT OF AppEAI;S NUMBER CX-97-953 —J February 13, 1997 Ms. Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Kellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Kalis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 Re: The Licenses of E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota Fi1e No. 80-2111-10861-6 Dear Ms. Palmer and Gentlemen: Enclosed for service upon you please find a copy of the Findings of Fact, Conclusions of Law and Recommendation in the above-captioned matter. A copy has also been served this day upon the City Clerk. Sincerely, C �f�( i 2 1;/�/�l� ita A. McConnell Administrative Law 3udge j>cc: City Clerk Providing Impartial Heanngs for Govemment aod Citizens An Equa Opportunity Employe Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 34'I-7346 � Fax No {612) 349-2665 `COURT OF APPEALS �p g' 7_ L�/ � NUMBER CX-97-953 L'J STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF SAINT PAUL in re the Licenses held by E. & R. Corporation, d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota 80-2111-10861-6 FINDINGS OF FACT CONCLUSIONS OF LAW AND RECONIMENDATION The above-entitled matter came on for hearing before Administrative Law Judge Rita A. McConnell on January 6, 1997 at 9:30 a.m., in Room 1503, Saint Paul City Hall Annex, 25 West 4th Street, Saint Paul, Minnesota, 55102. The record closed on January 6 at the close of the hearing. Virginia D. Palmer, Assistant City Attorney, appeared on behalf of the City of Saint Paul, Of£ice of License, Inspections and Environmental Protection (LIEP). No representative appeared on behalf of the license holder. Notice is hereby given that this Report is a recommendation only and not a final decision. The Saint Paul City Council will make the final decision. After a review of the record, it may adopt, reject, or modify the Findings of Fact and Recommendations contained herein. Pursuant to Saint Paul Legislative Code Section 310.05, the City Council will provide each party adversely affected by tl�is Report to present oral or written argument alleging error in this Report and present arguments to the Council related to any recommended adverse action. Parties should contact the City Clerk, Saint Paul City Council, 386 City Hall, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. COURT OF APPEALS NLTMBER CX-97-953 STATEMENT OF ISSUES Q5 9� 1. Whether licensee permitted sexual acts or conduct on the licensed premises in violation of Section 410.05 of the Saint Paul Legislative Code. 2. Whether licensee provided on the licensed premises entertainment that is permitted only under a Class C license. 3. Whether licensee should be assessed the costs of the contested hearing on the grounds the licensee's defense was frivolous, arbitrary or capricious. Based upon all the files, records and proceedings herein, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. Licensee E. & K. Corporation (Licensee) holds a variety of licenses for the business it operates as Checkers Nite Club at 1066 7th Street East in Saint Paul. Included in those licenses is a Class B Entertainment license. The premises is licensed for 150 seats. City's Exhibit No. 2. 2. On October 4, 1996, Saint Paul Police 0££icers Dean Roehnen and Renneth Jensen filed Police Reports indicating they were dispatched to Checkers Nite Club in the early hours of October 4 where they observed a male employee of the C1ub dancing in briefs or underwear. Officer Jensen's report indicated the dancer's genitals were exposed and that a patron had his hand on or near the genitals during the dance. City's Exhibit Noa 1. 3. By letter dated October 25, 1996, Assistant City Attorney Virginia Palmer notified the Licensee that the conduct described above violated the Saint Paul Legislative Code and formed the basis for adverse action against the licenses. City's Exhibit No. 3. 2 COURT OF APPEALS /,_`� / / 7 �� 1 NUMBER CX-97-953 �--/� 4. On November 4, 1996, Licensee through its stockholder Walter Englehardt responded to the Palmer's letter. In that response, Englehardt stated as follows: This is what the Officer saw when he walked into the bar. The male dancer £or the night was wearing a pair of Calvin Rlein boxer shorts, under the boxer shorts the dancer was wearing a gold almost flesh colored T-back. (This is something like a jock strap with the front and rear covered.) The officer observed a white male dancer with his shorts pulled down, the officer did not see the T-back and assumed the genitals were exposed. City's Exhibit No. 4. 5. In response to Englehardt's letter, Palmer advised the Licensee that the conduct admitted in the letter was not permitted under an Entertainment Class B license and af£ered Licensee the option of proceeding to an administrative hearing or resolving the matter short of a hearing. City's Exhibit No. 5. 6. Licensee did not respond to Palmer's November 20 letter. Accordingly, on December 10, 1996, Palmer sent I,icensee a notice of the hearing held on January 6, 1997. City's Exhibit No. 6. 7. The license fee for a Class C Entertainment License is $1,600.00. The fee paid by Licensee for a Class B Entertainment License was $500.00 8. Neither Walter Engelhardt nor any other representative appeared on behalf of the Licensee at the scheduled hearing. Based upon the foregoing, the Administrative Law Judge makes the following: CONCLUSIONS 1. The Administrative Law Judge City Council have jurisdiction in this and the Saint Paul matter pursuant to 3 COURT OF AppEALS NUMBER CX-97-953 � } g�-�r`� � Minn. Stat. Section 14.50 and Saint Paul Legislative Code Sections 310.05 and 310.06. The Licensee received timely and proper notice of the hearing of this matter. 2. The Saint Paul Legislative Code provides for adverse action against a licensee if a licensee fails to comply with any condition set forth in the license, or if the licensee violates a provision of the Code. Saint Paul Legislative Code Section 310.06(b)(5) and (6). 3. Under a Class B Entertainment license, the Licensee is authorized to provide entertainment in which "all of the participants...[are] fully clothed at all times." Saint Paul Legislative Code Sec. 411.02, Class B. In order to provide entertainment which includes performers who are not fully clothed, Licensee is required to obtain a Class C license which permits clothing that is "minimal but in compliance with Chapters 409.09 and 410.05 of the Legislative Code." Saint Paul Legislative Code Sec. 411.02, Class C. 4. Saint Paul Legislative Code Section 410.05 contains several sections which prohibit the exposure of genitals by employees or patrons on licensed premises, including section (1) which prohibits the "employ...[of] any person in the sale or service of alcoholic beverages in or upon the licensed premises while such person is unclothed or in such attire, costume or clothing as to expose to view any portion of the ... genitals." 5. The Licensee is in default herein under Minn. Rule 1400.6000 as a result of its failure to make an appearance at the hearing. 6. Pursuant to Minn. Rule 1400.6000, the allegations set out in the Notice and Order for Hearing may be taken as true and deemed proved without further evidence when a party defaults. 7. The City has established that the Licensee provided entertainment in which the participants were not fully 4 COURT OF APPEALS O 9 7 I� NUMBER CX-97-953 clothed in violation of the conditions of a Class B Entertainment license. 8. The violation of the conditions of the Class B license was intentional and without regard to the limitations on that category of license as set forth in the Saint Paul Legislative Code. 9. The defense of the Licensee in this matter was frivolous, arbitrary and capricious, justifying the imposition of the costs of the hearing on Licensee. Based upon the foregoing Conclusions, Administrative Law Judge makes the following: RECOMMENDATION the IT IS HEREBY RECOMMENDED that the 5aint Paul City Council take adverse action against the licenses of E. & R� Corporation by assessing a fi e in the amount of �9�e—Three� 3,00a, c�c3 Thousand a��. °••-�--' "�?'_�_.. (� and requiring the licensee to pay the costs of the administrative hearing. Dated this 13th day of February, 1997. „� � ` C��/' � r 1 ( Rit A. McConnell � a f. `� A nistrative Law Judge � �� Reported: Taped, not transcribed. NOTICE The Saint Paul City Council is requested to serve a copy of its final decision upon the Administrative Law Sudge as well as the parties by first class mail. 5 COURT OF APPEALS � � 7`�7 � 7 NUMBER CX-97-953 MEMORANDUM The allegations set forth by the City in its Notice of Hearing establish a violation of that Section o£ the Saint Paul Legislative Code {"the Code") which prohibits certain sexual conduct on licensed premises. Since the Licensee did not appear at the hearing, these allegations may be taken as true. The Licensee did, however, respond to the allegations in writing prior to the hearing, establishing a basis for its defense in this matter. In addition, the police officers who allegedly observed the prohibited conduct also failed to appear at the hearing. Consequently, the record alone does not establish a violation of Section 410.05 of the Code. The facts which are accepted as true are those admitted in the letter from Licensee's representative. The letter's description of the dancer's costume indicates the dancer was wearing a flesh colored jock strap, and was dancing with his boxer shorts pulled down. From this description, it is reasonable to conclude that the dancers was not "fully clothed but was rather wearing "minimal" clothing during the entertainment. Such costuming is permitted only with a Class C license under Section 411.02 of the Code. Providing such entertainment with only a Class B license is a violation o£ the conditions in the license and the provisions of Section 411.02. The City Council is permitted to impose a fine upon the licensee in an amount it deems reasonable and appropriate under the circumstances. Saint Paul Legislative Code Section 310.05{1). The Code sets forth certain presumptive penalties for Code violations by on-sale licensed premises. The council is allowed to deviate from those penalties "where the council £inds and determines that there exist substantial and compelling reasons making it more � COURT OF APPEALS � �f ']- �{ / '7 N[JMBER CX-97-953 `� appropriate to do so." Saint Paul Legislative Code Sec. 409.26. The Code does not specify a presumptive penalty for the type o£ violation at issue in this matter. It does, however, indicate that a fine of $1,500.00 is presumptively appropriate for a first violation by a licensed premises with a seating capacity of 150. LIEP argues this penalty is insufficient since the Licensee already saved $1100.00 in licensing fees by paying for a Class B rather than a Class C license. In order to penalize Licensee for this violation, LIEP suggests the assessment of a$2,000.00 fine. Although the evidence supports the conclusion that Licensee disregarded the restrictions on its license, that disregard does not appear so flagzant as to justify imposition of a penalty in the amount requested. LIEP's request overlooks the $500.00 already paid by the Licensee for the Class B license. If the presumptive penalty is imposed, the Licensee will pay the City a total of $2,000.00, thereby incurring expenses of $400.00 beyond the amount it would have paid for an appropriate license. This amount, together with the imposition of the hearing costs, is a sufficient penalty in light of the violation. R.A.M. 7 0 97�� STATE OF MINNESOTA COURT OF APPEALS OFFICE OF ADMINISTRATIVE HEARINGS j�jLJNIgER CX-97-953 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapotis, Minnesota 55401-2138 March 21, 1997 Fred Owusu City Clerk 170 City Hall 15 W. Kellogg Bfvd. St. Paul, MN 55102 Re: In the Matter of the License held by E& K Corporation d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota ; OAH Docket No. 80-2111-10861-6 Dear Mr. Owusu: On February 13, 1997, Administrative Law Judge McConnell. Served the Findings of Fact, Conclusions and Recommendation in the above-entitled matter. Enclosed is the o�cial record, including a copy of the tape recording af the hearing. If Our file in this matter is now being closed. Very truly yours, `�'`G%.��!��" 1 � / t/ Nancy M. Thomas Docket Clerk Telep hone: 612/341-7615 NT Enc. Providing Impartial Hearings for Government and Citizens An Equal Oppd�Sunity Employer Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 COURT OF APPEALS NUMBER CX-97-953 AF'FIDAVIT OF SERVICE BY MAIL � 9 �- ��7 Rita A. McConnell, of the City of St. Paul, County of Ramsey, in the State of Minnesota, being duly sworn, states that on tfle 13th day of February, 1997, she served the annexed Findings of Fact, Conclusions of Law and Recommendation, upon the individuals named below by mailing to them a copy thereof, enclosed in an envelope, postage prepaid, and by depositing same in the U.S. Mail at Saint Paul, Minnesota as follows: Ms. Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Rellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Ralis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 City Clerk Saint Paul City Council 386 City Hall 15 West Kellogg Blvd. Saint Paul, MN 55102 FURTHER AFFIANT SAYETH NOT. C ita A. MeConnell Subscribed sworn to befo e me �.� day of February, 1997. Nota"ry u lic .owv..�aoo.wa«m � STEVEN F. MAT7AINI twsaRr vusuc - auax�sora RAMSEY COUMZ' �b cannsuoa F�Y« Jm.9t. moo COURT OF APPEALS NUMBER CX-97-953 ,....� �.,, r ' ' �� ' h� `� _ �'..`��f_�ta3 _ _ __ )�� . �.. ._ STATE OF MtNIVESOTA OFFICE OF ADMINi5TRATIVE HEARINGS 100 Washingto� Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 � "`�� February 13, 1997 Ms. Virginia D. Assistant City 400 City Hall 15 West Kellogg Saint Paul, MN Palmer Attorney Blvd. 55102 Mr. Walter Engelhardt Mr. Michael J. Ralis c/o Checker`s Nite Club 1066 7th Street East Saint Paul, MN 55106 Re: The Licenses of E. & K. CorpoT'ation d/b/a Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota File No. BO-2111-10861-6 Dear Ms. Palmer and Gentlemen: Enclosed for service upon you piease find a copy of the Findings of Fact, Conclusions of Law and Recommendation in the above-captioned matter. A copy has also been served this day upon the City Clerk. �_ Sincerely�� 6' </� —, ita A. McConnell Administrative Law Judge cc: City Clerk �7-'�l� Providing Impartial Hearings for Govemment and Citizens An Eq Oppor Emp4oyer Administrative Law Section & Administrative Services (612) 341-7600 � TDD No (612) 341-7346 ��ax No (612) 349-2665 COURT OF APPEALS NUMBER CX-97-953 .: : �..:,. �: `� :�Ne`a *u� - ��)�:_ ; : , � STATE OF MINNESOTA � OFFICE OF ADMINISTRATIVE NEAR[NCS 100 Washington Square, Sufte 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 ��n� f 9'7��f�7 February 13, 1997 City Clerk Saint Paul City Council 386 City Hall 15 West Rellogg Blvd. Saint Paul, Minnesota 55102 Re: The Licenses held hy E. & K. Corporation, d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota File No. 80-2111-10861-6 Dear City Clerk: Enclosed for service upon the Saint Paul City Council are the Findings of Fact, Conclusions of Law and Recommendation for the above-referenced matter. A copy of this Report has also been served this day on Virginia Palmer of the Office of the City Attorney and Walter Englehardt on behalf of the licensee. Sincereyy, ( / � / ' � -E�f"�,' �� 'ta A. McConnell �_Adi[tinistrative Law Judge cc: Ms. Virginia Palmer Mr. Walter Engelhardt Prov�ding Impartial Hearings for Govemment and C�tizens An Equal Opportunity Employe Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341J346 � Fax No (612) 34&2665 COURT OF APPEALS NUMBER CX-97-953 9 7-'�17 � \✓ OFFICB OF ADMINISTRATIVE HEARINGS FOR TFiB COIINCIL OF THE CITY OF 5AINT PAIIL In re the Licenses of E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East January 6, 1997 CITY'S PROPOSED EXEiIBITS TO: Judge Rita McConnell, Administrative Law Judge, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401 The following constitutes a list of the City's proposed exhibits for the Administrative Hearing on January 6, 1997. Exhibit No. Exh. No. 1 Exh. No. 2 Exh. No. 3 Exh. No. 4 Exh. No. 5 Exh. No. 6 Description St. Paul Police Report CN 96-157-804, dated October 4, 1996 (2 pp.); License information regarding E. & K. Corporation d/b/a Checker's Nite Club (1 p.); Notice of Violation letter dated October 25, 1996, with Affidavit of Service (3 pp.); Letter from Walt Engelhardt to Virginia Palmer dated November 4, 1996 (2 pp.); Letter from virginia Palmer to Walter Engelhardt dated November 20, 1996 (1 p.); Notice of Hearing letter dated December 10, 1996, with Affidavit of Service (4 pp.). _ COURT OF APPEALS � �}�, � / , NUMBER CX-97-953 `y � Also attached please find courtesy copies of applicable St. Paul City ordinances: St. Paul Legislative Code St. Paul Legislative Code St. Paul Legislative Code St. Paul Legislative Code § 310.05 § 310.06 � 310.17 § 410.05 Respectfully submitted this 6th day of January, 1997. !/l./�ii��'� i c��a� Virgi a D. Palmer Assistant City Attorney Office of The City Attorney 400 City Hall 15 West Kellogg Soulevard Saint Paul, Minnesota 55102 (612)266-8710 COURT OF APPEALS NUMBER CX-97-953 Lic ID .................•- STAT ..................... Business Name..._........ Doing Business As........ Address .................. Zip ...........•••••...... Exp Date ................. License Name ............. NOTE AREA .............. � 16335 AC E & K CORPORATION CHECKERS NITE CLUB 1066 7TH ST E 55106 04J30/97 LIQ-ON SALE-OVER 100 SEATS-B SUNDAY ON SALE LIQUOR ENTERTAINMENT-CLASS B RESTAURANT (B)-MORE THAN 12 SEATS INSP CHANGE FROM O1 TO 02 ON 3/20/92 10401 150 SEATS 5-5-87 97--�f/� 7/17/90 CHANGE OF BUSINESS NAME PER RESOLUTION SIGNED BY ROBERT KESSLER 062591 PH ON APPN FOR NEW CLASS B GAMBLTNG LOCATIO N LICENSE APP'D C.F. 91-1159 5/15/96 - $2,000.00 CHECK FOR PARTIAL LICENSE FEES RETURNED "NSF" - T,AR . 6/25/96 HOME ADDRESS INFO OF OFFICERS PAYMENT OF GIVEN TO Press <RETURN> to continue... A1C-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° Bond Policy Number....... Bond Company ............. Bond Ef£ective Date...... Bond Expiration Date..... Insurance Carrier........ Ins. Policy Number....... Insurance Effective Date. Ins. Expiration Date..... Associated Stock Holder.. JOY OF MESHBESHER & SPENCE LAW FIRM.--LAP-LIC 8/22/96--REC'D PAYMENT FOR $2,000 BAD CHECK - T�AR 12/2/96--RECEIVED LICENSE PAYMENT BACK "NSF" - T�AR UNIONAMERICA INS CO LL966109 07/31/96 04/30/97 MICHAEL J KALIS WALTER H ENGELHARDT Dealer No ................ Tax Id ................... 5121502 Worker Comp Exp Date..... 04/30/95 Telephone ................ 776-7915 Press `C` to continue, 'P` to print, or `R` to redisplay... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° � - - � In Re the Licenses of E. & K Corporation ', — dlb/a Checker's Nite Club — City's Exh. No. 2 COURT OF APPEALS NUMBER CX-97-953 ae „ . o. 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L _ . . ___ _ . _ . _-- -.. !78_Jf _5��n�_S_ SLY'__�0`�-,.!"'� --Qa� �.n_�r _�naG. _ -- i � -- �. rr✓� s�_�----�ht- ---�'�._ -- L t � 3 3 G_ G f IL s 3� L. a y r --- ---- � - �� 3 `� 3 __ r� g il a F f�� - W��_ .. _r�� a,. F e1 I�.__cer�o�o . `�_._f�'O_____ A�- To�r. ��s�- �y, �r.� I % ,: • s� ��:� - �-- -- '�`� _ _ `-tSntfS JI_<_t-'t- --- C� . , sf[. 3� 7 F FOlSTER 5T. PAUL POLICE DEPARTM� �� "� yr � GENERAL REPORT • 0 z � , � J m � CHF ❑ Hom ❑ Rob ❑�� ❑ Coord p i� ❑ Lab �� Team C In Re the Licenses of E. & K. Corporation �� D/C � Burg � Theft ❑ Prop � CAU � F&F 0 Auto � DA [] CO [— �/a Cheeker's Nite Club ' � _ Citv'�E�. No. 1 COURT OF APPEALS NUMBER CX-97-953 REPORT v-�t��,c� or o0 •ST. PAUL POLICE CONTINUATION OF: I . � PARTMENT ORIGINAL REPO 9�-v�7 SUPPLEMENTAL REPORT � �.ntQ 3 l T� t ��. _`i e.,�S�-_ c�, l3� A-�� .'�Z�_ �3 L� 1 3� ��c.� 33 � V+T _�♦ l� ��K2� _0.� . LV � V �� t _ pa.9{�'� G��l G� - W L ihvo W c� '.� w�A�S �Z.volv e� t� O�rh� St - C��J. ar�.`vo,,F � w��l t1.. t1� {�vo,n�- door �__.s� .w -o..� - ��,,ol ��. �-...t s,�, �, d ._ _�_ ��}�. �'�oW 2N.e.v� yV.Q_ o. N.�o��e o<<4+nC2v- /n.. w�s4Yi G. pai r 81 _ --`D'hi �-C �OC.�C�e.� y�vW.CM/' d�+.4�lLl%�q rDr A O�"t� �$�,ciLl. --� '.` w �o.�- . � ca� � • s_ee. �t �O A�,�. � l�:.� r�� 1..� �a�e { � -- }�IQo� Ov �VC.�n�� /�'�e�� cc0. �2..1i �q�� c.v/1 �2.. �.•4✓tcR.V __ H� �7t �v.1}' �'F 1n�3 ��o�f ctowh� z.p�pas�'v+ �,S C,c.ni i�lT �� a��oc�c� _ � �c�a n {v �e��a.. . �n,�� . 0 z � 6' 1 �l -,] � O � �� 1EiT1�Q CHF � Hom ❑ Rob ❑ Jw ❑ Coorci ❑ ID ❑ lab D/C ❑ Burg � Theft � Pmp 0 CAU ❑ F&F 0 AWo O.T.: Typist: �Yes � No Rec ❑ Team �Sex ❑ Rpt� DAO ❑ CA HumServ ' n P�M 62�2-93R � � � X,�./ COURT OF APPEALS q OFFIC ^ TI� CITY ATTORNEY NUIVIBER CX-97-953 • 1 Tmorh �rs, Ciry Anomey �� 7 CITY OF SAINT PAUL Norm Cokmrm, Mayar October 25, 1996 Mr. Michael J. Kalis Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota Civd Division 400 Gry Hal1 IS West Kellogg Blvd Saint Paul M'mnesom 55101 and Mr. Walter H. Engelhardt 5106 Tekphone: 612166-8770 Facs "vrsile: 612198-5679 RE: All licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the property located at 1066 7th Street East in St. Paul License ID No.: 16335 Dear Mr. Kalis and Mr. Engelhardt: I am in receipt of information that could lead to adverse action against your business licenses. The basis for the adverse action is: Saint Paul Police Report CN 96-157-804 statea that on October 4, 1996 Officer Jensen was sent to Checker's Bar, located at 1066 E. 7th Street, Saint Paul, and observed a white male dancer with his shorts pulled down, exposing his geaitals. A patron had his right hand near or touching the male daacer's geaitals. This is a violation of Saint Paul Legislative Code §410.05(3) and (7) and forms the basis for adverse action against aZl the business licenses of Checker's Nite Club. If you don't dispute that the facts highlighted above took place, this matter will be scheduled before the St. Paul City Council for a hearing to determine what penalty, if any, to impose. You will be allowed to speak on your behalf at that hearing. I will need a letter from you saying that you do not dispute the facts, to present this matter directly to the City Council. On the other hand, if you wish to dispute the above facts, I will schedule an evidentiary hearing before an Administrative Law Judge (ALJ). You will receive a"Notice of Hearing," so you will know � � _dn Re the Licenses af E. & K Corpoxation I d/b/a Checker's Nite Club —, City's Exh. No. 3 , COURT OF APPEALS ' • � Q , , , I l � ' 'NUMBER CX-97-953 / `7� Page 2 when and where to appear, and what the basis for the hearing wi11 be. In either case, you should contact me within ten days from the date of this letter. If I do not hear from you, I will schedule the hearing before the ALJ, and you may be held responsible for the costs of the hearing if you do not then appzar and contest the facts. Please call me or have your attorney call me at 266-8710. Very truly yours, �� v Virginia D. Palmer Assistant City Attorney cc: Robert Kessler, Director, LIEP Christine Rozek, LIEP Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 COURT OF APPEALS N[JMBER CX-97-953 :� STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY ) • � 97� y� 7 AFFIDAVIT OF S7sRV2CS BY MAIL JOANNE G. CLEMENTS, being first duly sworn, deposes and says that on October 28, 1996, she served the attached LETTER on the following named persons by plaoing a true and correct copy thereof in an envelope addressed as follows: Mr. Michael J. Kalis and Mr. Walter H. Engelhardt Checker's Nite Club 1066 7th Street East St. Paul, MN. 55106 (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 28th day of October, 1996. .e� /// < �� Notary Public � RITA M. BOSSARD t � Z � - NO�ARYPUBLIC—h"iiJIdESOTA " ' RAPhSEY COUNTY � MyComm.ExpiresJan.31.2000� COURT�OF APPEALS NUMBER CX-97-953 11/4/96 � CHECKERS NITE CLUB 1066 E. 7TH. ST. St. Paul, MN. 55106 (612) 776-7915 License tD. No_ 16335 � � re: St.Paul Police Report CN 96-157-804 Oct. 4, 1946 Virginia Palmer Assistant City Attorney Civil Division 400 City Hall 15 West Kellogg Blvd. St. Paul, MN, 55102 Dear Virginia Paimer, C� 97-�i7 �� NOV 4� 1996 �°�� E� In response to the allegations of Of£icer 3ensen. On the rright in question when Officer 7ensen came into checkers Nite Club he told the manager that they had received a complaint that there was homose�ntai activities �oing on down here. Tenel Hunter who is the bar manager asked a�cer 3ensen what exactly he meant by that. One of the officers said to Terrel you know " sucking cock and butt fucking ." First of a11 these activities aze not 1ust homasexual activities. Secondly and mu�t importantIy these activities wether they are homosexuat or heterose�xal tkey do not take place inside Checkers Nite Club nor are they proma#erl or encouraged by Checkers Nite Ciub. It seems same on� called the St. Paut Police Department and reported something happening inside Checkers Nite Club. It is obviously someone who has never been in tlte har, and was probably just trying to cause probfems for the bar because they don't like the Gay I Lesbian community. And through their ignorance and with their over active imagination called in a complaint of Homosexiial activiries. After the call was received by the Police department a squad was dispatched. Officer 7ensen was the first Officer into the bar. Officer Jensen probabiy has never been in a Cray/Lzsbian bar before and had nt� idea of what to e�ect. So after hearing the call the Officers imaginatipn probably created al1 kinds of pictures of what was going on in the bar. TYtis is what the Qfficer saw when he walked into the har. The male dancer for the night was wearing a pair of Caivin Klein boxer shorts, rander the boxer shorts the dancer was wearlrt$ a gold almost flesh colored T- back. ( This is sometlung like a jock strap with the front and rear covered.} The officer observed a white male dancer with lus shorts pullad down, the officer did not see the T-back and assumed the genitaLs were exposed. Than the report goes on to say " a patron had tris right hand near or touching the male dancer's genitats" but in realiry the customer was putting a$ l.flfl tzp in elastic band at tke top of the T-back. By the time the raid {for Iack of a better word) was over there were 7-10 Officers in the bar. _ _ •n Re the Licenses of E. & K. Corporation� — d/b/a Checker's I�Tite Club — City's E�. No. 4 � COURT OF APPEALS • NUMBER CX-97-953 !0 Page 2 � 97-yj� They not onIy checiced the portion of tke bar that was open but they checked tfie entertainment (dance side) side of the bar which was not open that night and they even went down 'srto the basement Iooking for homosexual activity and of course found none. Qn Jaauary 1, of 1496 I changed Checkers I�iite Club from a basicaily all btack nite cIub inta a bar that caters to the gay I lest�ian crawd. Ths reasan for tlus change was I was tried of having to wear body armor to work and havin� my life ttueatened. Since the change over there has not been a singte Police catt to Ckeckers Nte Cluh_ My customers are a very quite � and do not sause a problem for the Palice department and I or the City of St. Paui. If the City of St. Paut, and / or the Palice departme�t have a prohlem with a bar that caters ta the gay i lesi�ian crowd then I wi11 chauge the bar back into a bIack nite club, then we atl will have to dea( with the guns and gang probletns. I am sure the City of St. Paui does not want this to happen, neither do L After I changed the bar over I had many of the tocal Police officers stop in to thank me for getting rid of the last crowd. There are no iiiegal activities being perFormed inside Checkers Nite C2ub and we try ta keep a eye on the parksng Pot and sunounding areas out side. I feel that this was just a isolated inci$ent, and the golice will not react with such exuberance to the next prank phone call. I hape ihis brings this tap'sc to an end, and clearifies exactly what tr�nsp'ued on the night in question. If you have any more questio�s or need to ta3k to me feel free to call. Some times it is easyier to contact me at home siace the bar doesn't o�en untill 6:00 PM. Thanks b o, W�C Wa.lt Engelhardt oumer CheGkers NitE Club bar# 776-7915 Iwme # 715 425-5 ISb CITY OF SAINT PAUL Norm Colemmy Moyor COURT OF APPEAL5 � NiJMBER CX-97-953 November 20, 1996 Mr. Walter Engelhardt Checkers Nite Club 1066 7th Street East Saint Paul, MN 55106 'l OFFICE OF THE CITY ATTORNEY Tuno�Marx, City Aaorney � �` Civil Division 400 Ciry Ha7t I S West Kellogg Blvd Saint PauZ M"mnesora 55702 7'ekphone: 612 266-8710 Facsimile: 671298-5619 RE: All license held by E&K Corporation d/b/a Checker's Nite Club Dear Mr. Engelhardt: Thank you for your letter of November 4, 1996 explaining your version of the incident reported in Saint Paul Police Report 96- 157-804. I discussed the matter with personnel from the Office of License, Inspections and Environmental Protection, and it appears that the entertainment you have described is still not permissible under an Entertainment Class °B" license. The license you have does not permit partially clothed performers. At this point we can schedule the matter for an adverse hearing before an administrative law judge to determine what the officer in fact saw and whether it is a violation of your license, or you can, if you wish, admit to the incident as you have described it as a vialation of your type of license. If you wish to discuss this you can reach me at 266-8710, or you can send a letter indicating how you wish to proceed. However you choose to proceed, I would appreciate a response by Monday, December 2, 1996. Thank you for your prompt response. Sincerely, `�� .P..,�.,� Virg�a D. Palmer Assistant City Attorney cc: Christine Rozek, Office of LIEP � — - � In Re the Licenses of E. & K. Corporatiun ; ` d/b/a Checker's Nite Club — i City's Egh. No. 5 COURT OF APPEALS NUMBER CX-97-953 � OFFICE OF THE CITY ATTORNEY Trmothy 6 Ma� Gty Attomey 97-�/� CITY OF SAINT PAL3L Nosm Cokmmi, Mayor December 10, 1996 Civil Division 400 Ciry Ha71 I S Weat Kellogg Slvd Saint Pau{ Mmnesow 55102 NOTICB OF HEARING Mr. Michael J. Kalis Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota and Mr. Walter H. Engelhardt 55106 Tekphone: 612 266-8710 Facsimile: 612 298-5619 RE: Al1 licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the premises located at 1066 7th Street East in St. Paul License ID NO.: 16335 Our File Number: G96-0518 Dear Mr. Kalis and Mr. Engelhardt: Please take notice that a hearing will be held at the following time, date and place concerning all licenses for the premises stated above: Date: Monday January 6, 1997 Time: 9:30 a.m. Place: Room 1503 City Hall Annex 25 W. 4th St. St. Paul, NIIQ 55102 The hearing will be presided over by an Administrative Law Judge from the State o£ Minnesota Office of Administrative Hearings: _ Name: Rita MeConnell Office of Administrative Hearings 100 Washingtoa Square, Suite 1700 Minneapolis, Sff�7. 55401 Telephoae: 961-7770 The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse action � -� In Re the Licenses of E. & K, Corporation I — d/b/a Checker's Nite Clnb —, City's Exh. No. 6 COURT OF APPEALS ' NiJMBER CX-97-953 12 9 7 y» against such licenses, under Chapter 310, including sections 310.05 and 310.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non-intoxicating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action against all the licenses you hold at the above premises as follows: Saint Paul Police Report CN 96-157-804 states that on October 4, 1996 Officer Jensen was sent to Checker's Bar, located at 1066 E. 7th 5treet, Saint Paul, and observed a white male dancer with his shorts pulled down, exposing his genitals. A patron had his right hand near or touching the male dancer's genitals. This type of entertaiament is in violation of your Bntertainment Class B license. 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 o£ 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 Sudge 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. Notice of Hearing - Page 2 , COURT OF APPEALS I,� �'J— yi � � NUMBER CX-97-953 If you think a stipulation or agreement can be reached as to the facts, that stipulation will be presented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. If you fail to appear at the hearing, your ability to challenge the 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. If you have any questions, you can call me at 266-8710. Very truly yours, ��_� �� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MN 55401 Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 Notice of Hearing - Page 3 COURT OF APPEALS NUMBER CX-97-953 STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY ) �� 7-LII`7 AFFIDAVIT OF SERVICE BY MAIL JOANI3E G. CLEMENTS, being first duly sworn, deposes and says that on December 13, 1996, she served the attached NOTICE OF HEARING on the following named person by placing a true and correct copy thereof in an envelope addressed as follows: Mr. Michael J. Kalis and Mr. Walter H. Engelhardt Checker's Nite Club 1066 7th Street East St. Paul, MN. 55106 (which is the last known address of said person) and depositing the same, with postage prepaid, in the United States mails at St. Paul, Minnesota. Subscribed and sworn to before me this 13th day of Decembar, 1996. �.�r�.Z�� Q�O� "" � Notary Public � , RITA R4. BOSSARD � �# NOTARYPUBIiC—MlhJtieSOTA S � R.4MSEY COUNTY � � MyCotnm.ExPiresJen.31.2D00 COURT OF APPEALS NUMBER CX-97-953 /3 : City of Saint Paul City Attorn.ey's Office 4oQ City Iiall Saint Paul, Minnesota 55102 FAX #: 298-5619 FAR TR�.NSMIZ°PAL COVER SHEET DATE: TO: EROM: January 6, 1997 Administrative Law Judge Rita McCOAaell Peter Pangbom, St. Paul City Attorney's Office phone: 266-8776 NDMBER OP PAGES {INCLUDING COVER SHEET}: 6 COMMENTS: g7-y�-�� `` January b, 1997 Administrative Hearing for E. � K. Corporation d/b/a Checker's Nite Club Attached is a copy of St. Paul Legislative Code �409.26 pertaining to presv.mptive penalties for violations involving St. Paul licensed establishments with liquor licenses. CONFIDENTIALITY NOTICE: THE DOCVMEN`T(S? ACCOMPANYING THIS FAX CONTAIN CONFIDENTIAL INFORMATIOI3 WHICH IS LEGALLY PRIVILEGSD. THE INFORMATIOAT IS INTENDED ONLY FOR THE USE OF THE INTENDED RECIPIENT NAMED ABOVE. IF YOU ARE ISOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTSFIED THAT ANY DISCLOSIIRE, COPYING, DISTRISVTION OR THE TAKING OF 11NY ACTION IN RELIANCE ON TIiE CONTENTS OF THIS TELECOPIED INFQRMATION EXCEPT ITS DIRECT DELIVERY `PO THE INTENDED RECIPIENi' NAMED ABOVE IS STRICTLY PROHIBITED. IF YOV HAVE RECEIVED THIS FAX IN ERROR, PLSASE N�TIFY US IMMEDIATSLY BY TELEPHONE TO ARR�NGE FOR RETURI3 OF THE ORIGINAL DOCL3MENTS TO US. WkiOb : T S L6. 90 NFlf ZA'� 5��s"9b66 Ol 3JIdd0 S�t3NJ011tl J,lIJ W02J� 6£:0T L66t-9e-NCf �� 1 ■ ■ ■I � COURT OF APPEAT,S NUMBER CX-97-953 § 310.15 !3 97-y�7 LEGISL9TIVE CODE definition in section 310.01, shall for the purpose of this section include the individual partners or members of any partnership or corporation, and as to corporations, the oflicers, agents or mem- bers thereof, who shall be responsible for the violation. (Code 1956, § 510.15) Sec. 310.16. Reserved. Editor's note--Section 310.16, pertaining tu license fees and aanusl incmases, sad derived from Ord. No. 16885, adopted Feb. 11, 1982; Ord. tio. 11059, adopted Oct 20,1983; and Ord. No. 17303, adopud Oct. 29, 1985, �as repealed by Ord. No. 17884, § 1, adopted \*ov 19, 1991. Sec. 310.17. Licensee's responsibiIity. Any act or conduct by any clerk, employee, manager or agent of a licensee, or 6y any person providing entertainment or woridng for or on behalf of a licensee, whether compensated or not, which act or conduct takes place either on the licensed premises or in any pazking lot or other area adjacent to (or under the lease or control ofl the licensed premises, and w}uch act or conduct violates any state or federal statutes or regula- tions, or any city ordinance, shall be considered to be and treated as the act or conduet of the licensee for the purpose of adverse action against all or any of the licenses held by such licensee. Tb the e�ctent this section is in conflict with sections 409.14 and 410.09 of the Legislative Code, this section shall be controlling and prevail; but shall not otherwise amend, alter or afi'ect such sections. (Ord. No. 17629, § 1, 1-31-89) Sec. 310.18. License fee schedule. Notwithstanding the provision of any other ordinance or law to the contrary, the following fees are hereby provided for all the licenses listed herein. These fees supersede all inconsistent pra visions, including, but not limited to, graduated fee provisions, in these chapters and in other ordinances and laws, and include the fee for the license application as part of the license fee; provided, however, that this section does not amend or modify sections 310.09(a) or 310.09(d) of the Legislative Code �cith respect to exempt orga- nizations or late fees. Pursuant to section 310.09(b) of the Legislative Code, these schedules shall be posted in the office of the director of the office of license, inspections and environmental protec- tioa. These fees shall be effective for license renewals and new license applications occurring on and after January 1, 1995, or on the effective date of this section, whichever is later; provided, however, that with respect to all licenses whose renewal dates xcur after the effective date of this new schedule, there shall be no increases in, nor offsets or refunds of, the e�sting fees paid, or due 3IId OW1IIg. (a) ENFORCEMENT LEVEL 1 Chapter/Seciion No• License Deuription Fee 167 Commereial Vehicle $66.00 198.04 Keepiag of aaimals (F.xotic pets) 66.00 316 Animal Foods Management & Dis- tribution 66.00 319 Amusement Rides 66.00 323 Christmas ZYee Sales 66.00 325 Close Out Sale 66.00 327 Dry Cleaaiag Pickup Station 66.00 332 Liquid Fuel Vehiele 66.00 333 Solid Fuel Vehicle 66.00 336 Private Fuel pump 66.00 340 Mereantile Broker 66.00 345 Peddler (Solicitor/h�ansient) 66.00 348 Reatal of Clothing & Vehicle � ' 66.00 349 Reatel of Clothes Attire Vehicle 66.00 350.02 Reatal of Hospital Equipmeat 66.00 350.02 Rental of Hospital Equipment Ve- hicle 66.00 351 � Rental oC Kitchenware 66.00 353 Rollu Riaks 66.00 355.01 Sewadhaad Dealer- ' (a) & @) Siagle Locatioa 66.00 357.03 Refuse Hauler-Each Vehide Over Oae 66.00 359 Sound TYvcks & Broadcast Vehi- cles 66.00 371 Finishing Shop 66.00 361.14 Tbw 1Y�uck/4Precker Vehicle 66.00 362 TYee 1Yimmer-Additional Vehicle 66.00 372 TSre Ftecapping Plant 66.00 376.16{d) Taxicab Driver (new) 66.00 377 Iawa Fertilizer & Pesticide Ap- plication 66.OQ 380 _ Tanning Facility 66.00 382 Pet Grooming 66.00 409.11 Outdoor Chsage in Service Area 66.00 412 \2assage Center (Class B) 66.00 414 :�3assage Therapist 66.00 924.02 Gasoline Filling Stations 66.00 � "�, :_:`j �-� Supp, No. 33 2036 COURT OF APPEALS I� a NUMBER CX-47-953 ! > 7 � 7 g 409,25 LEGISL9TNE CADE committee registered under Miaaesota Statutes, Seetion IOA..I4, may obtain an on-sale ficense to sell cvine and strong beer nut ezeeedistg faurtzen (14) percent alcohal bgvolnme for �+n++nption on the licensed pxemises only fihe fee for sush li- eense shall be estabiished by ordinance as pro- vided in seetion 310.09(b) afthe Legislative Code, and lieenses shall be issued for periods not to exeeed three (3) eonsecutive days. No orgaaiza- tion or politieal committee shsll be granted more than three (3) lieenses withm a twelve-moath period. No more than three (3) such licenses may be granted for any one (1) locatioa within the city. (b) Liquor Zieenses. NoLwiths'tanding any other provisioa of this ehapter, a club or charitable, religious oz ather aonprofit organization in exis� ence for at least three (3) years may obtaia on-sale license to sell iatoxicating liquor for con- sumption on the licensed premises oaly and ia connectioa with a soeial event within the city sponsored by the licensee. The lieease may pro- vide that the lieQnaee may contract for into�cat ing liquor catering services with the hoider of a full year on-eale intoxieatng liquor lioense issued by the aty. The fee for such ficease sfiall be fortywne dollars ($41.001 Per day and shall be issued for not more than three (8) ceasecutive days. No organizatioa shall be granted more thsn 8ve (5) snch liceases per calendas year. tc) Applicatfion. Application for such temporary licenses shall be made on forms provided by the inspector aad shall coatain sueh iaformation as speafiedbytheinspector, iaeludiagthefollowing. (1) The nazae, address and purpose of the organization, tagether witl� the names and addresses of its vfficers, and evidence of aonpzofit status or of its status as a club uader sectiws 409A2 above. (2) The gurpose for which the temporary li- eease is sought, together with the place, dates and hours during which wiae or intofficating liquor w� be sold. (3) Consent of ttie owaer or manager of the premises or person or group with lawful responsibility for the premises. (4) �idence that the managez or director has xeceived alcohol awareness Lrarning pm vided hy a bona fide instructor ar the tity. Slipp. Na 34 (� Applie¢tiorz of other provisions of fhis ch¢p- fer. No other provisions aFthis chapter shall aPP�Y to lisenses granted vader ehis seetia�, eacept sections 4Q9.Ofi, 409.07, 409A8 (egcept elauses (113 and {12)), and seetions 409.09 thzough 409.i4. (e) Class II Zicense. Notwitl�standing any other provisioa of law to the crontzarg, the temporary Wine and liqaor liceases provided in this section shall be administered as a Ctass II license and subject to the provisions of these chapters govern- ing Class II licenses. The inspector shall make a]1 referrals as provided by section 310.03, but the director may require theinspector toissue such licestse before receivfng any recommendations on the applieation thezeof if necessary to issue such license on a timely basis. (Ord. No.17459, § 1, 5-28$7; Ord. No.17569, § 4; $-7-58; Ord. No. 17853, $ 1, 7-18-91; C.F. No. 941561, $ 2, 11-I&44} Sec. 40526. Iatoxicating liquor, nonintoffi. cating malt liqnor; presumptive penalties. (a) Purpose. '1`he purQose of this seetioII is to establish a standard by which the city covneil determines the length of license suspensions and the propriety of zevocations, sad shall app�y to all oa-sale and off-sale lieensed premises for both intosioatiag 3iquor under this chapter aad aonin- tofficatiag liquor under Cbapter 410. 3'hese pen- alties are presumed to ba appropriate fcr every ease; however the eouacii maY deviste therefrom ut aa individual case where the eouacil finds aad determiaes 'lhat there effist snbstaniial aad com- pelling reasons making it more appropriate to do so. When deviatiag from these standards tbe eouncil sball pravide written reasons that specify why the penatty selected was more appropriate. (b) Pres�smp£ive penalties for aiolat�orzs. Ad- verse penalties for convictions or violations shall be presumed as follows (unless speci5ed, aum- bers below iadieate consecutive days' suspension): 2I94.4 Wti07:iT L6. 90 NFir zct'a 6AZS9b66 Ol 3�Idd0 SJ.3Na011ti J,lI� WObd 6£:0i L66T-90-NFif COURT OF APPEALS NUMBER CX-97-453 ^� !3 q�-�>� rsc�s Appear¢nee Type of V'wlation Ist 2nd 3rd (� Commissioa of a felony related to the li• Revocation NA NA censed activity. (2) Sale of alcoholic heverages while Ii�nse Revocation 1�*A NA is aader suspension. �—� � Svpp. No. 24 WtiOb : T Z L6. 90 Ntif sA � � 6AZ��6 Ol 2194.5 4th NA NA § aosss : 3J1��0 SA3N?1011ki J.lI� Wd�J� 0b:6S L65S-90-NHf �.. CNUMBER C X 9 E9 S �� 9 7 7 _, Type of Vwlatioa. (3) Sale of aloaholic be�*erages to undeaage pCT80A. (4) Ssle of almholic beverage to iatofficated person. (�) Af�er hours eale of almholic beverages. (6) After houzs dispIay or consumption of al- cokolio be�erage. Refu.,at tq sllow city inspeetors or police admission to inspecE premises. Illegal gambling on premises. Fail to take reasanable steps to stop petson fram leaving premises with aIco- holiC beverage. Failure to make application for Iicense renewal prior to license expiration date. (li) 3ale of iatoaicating liquor where only li- cense is for nonintoscating Iiquor. (12) Failure to tomp�y with statutary, and or dinanee zequirements for liab�7itq insur- aace. (7) (S) (9) (10) LIC�NSES APPea'¢nte Ist 2nd 3rd 4th $ 40926 I 1 1 1 5 1 1 -,-. 6 1S Revocation F) SS REVOC2t2077 � 6 18 Revocation 4 12 Ztevotation Rar those violatio='is which occur ia on-sale in- toxieafing liquor establishments ]isted above in numbers (3), [4), (6), (6), (8), (9), i10) snd (11), the couaci7, m&y in its disaetioa impose a fine in Iieu of a suspension oa the first appearance, in a�r dance with the following schedvle wfiose amouats are presumptively appropriate: Seating capacity 0-99 . . . . . . . . . . $ 500.00 Seating capacity 1Q0-149 . . . . . . . 1,000.00 Seating capacity 150-199 . _ . . ... 1,500.00 Seati.ng capacity over 200 . . . . . . . 2,000.00 For those vioIations which occur in off-saIe in- toxicating liquor establishments listed above in numbezs (3), (4), f�?, (6), (8), (9), t10) and i21), the eoundi may in its discretion impose a fine in lieu of a suspension on the fizst appeazance, in accor Supp. No. 21 WtiOb : I T L6. 90 Ntir b�l•.-1 F�R7S'9b�,F, Ol 15 Rzvo- NA cation 6 I8 Revocation 4 12 Revocation 6 18 Revocation 1 6 18 Revocation 10 Revo- NA NA cafion dance with the following scl�edule, whoae amounts are presumptively appzapriate, based on the square footage of the retail area of the establish- ment: 2,000 squase feet arIess......._. $ 500_00 2,001-5,000 square feet. . .. . . . _ . 1,QOO.OQ 5,001-10,000 square feet.....__. 1,a00_00 10,001 squara feet or more_ ...... 2,000.00 tc) Mutiipie aiotafion.s. At a licensee's'first ap� peszance before the city council, the wuncil shall consider and set upon all the vioiations that have been alleged andlor incorporated in the notices sent to the licensee under the administrative pro• cedures act up to and including Lhe formal notice of hearing. The council in that case shall.mnsider the presumptive penalty for each such, 4iolation 2195 3J1��0 SA3N21011tl �lIJ W6�� 0b:0Z L66S-90-NHS COURT OF APPEALS NUMBER CX-9�-953 � ao�as /3 g� LEGISLA7NE CODE under the "IBtAppearanoe" co2utnn in para�aph (b) above. The occartp�sce of multiple violatioas shail be g:vuads for deparEure from sueh penal- ties ia the coaaeil'8 discretion, Violatiotts occurring afFzr the date of the notice of hearing t�at are brought to the atf,esstion of the dty attorneq prior to the hearing date befcrn an adminisfxative law judge (or before Lhe eouncil in an uaeontested Paeks hearinpa may be added to t�e notice(s) by stipvlation if the licensee adauts to the fads, sad shall in that case be treated as though part of the "lst Appearance." In all other cases, violations occurring at�er the date of tbe formal notice of hearing shall be the subject of a sep2rate pzoceeding and dealt a-iih as a"2nd AppeaTanee" before the council. The eame grocedures shall apply to a second, third or fourth appearance before Ehe council. td? Subser1uen.t appearances Upon a second, third or fourth appearance before tbe wuncii by a partiCUlar licsasee, the oouncil shall impese the presumptiva penalty for the violation or viola- tions giviag rise to the subsequent appeazance without regatd to 'the particuiar violation os vio- lations that were the subject of the fust or prior appearance. (e) Computation of lime (1) If a licensee appears before tbe muncil for aoy violatiian ia pasagraph (b) where that violation has oceurred.vithin eighEeen I18) ealendas montbs af�er tlte fitst appeataace ofthe sa,me Iieerisee for a violatian listed ia paragaph (b) above, the eurrent appear• ance s�all be treated as a seeond appear- ance for the puxpose of determuiing the pre svmptive penalty. (2) If a liceasee has appeared befoze the council on two (2) previous oeeasions, both Sor vio- lations Iisted ia paza�aph (b) abave, and if said licensee again appears before the council far a violation Iisted i� said para- graph (bl, and if the current �zolation oc- cusred wifhin thirty (30) calendar months of the violation that gave rise to the first appee.-aace before the touncil, then the cur- rent appearance sha12 be treated as a thizd Supp. No. 21 appearance for the purpose of determiniag Pre�mPfive PenaltF• (3) If a licensee has appeared before the �timdi on chree (3) previous nassiona, each Sor vi olations listed in paragraph (b) above, and if said licensee again appears before the couneil for a vioIatioh Iisted in para�aph (b} above, and if the �urrent vioiation oa curred within forty-ei�hht (48} calendar monlha of the violation that gave rise to the firsE appearanee, then the current ap. pearance shall be treafed as a fourth ap� pearance for the purpose oidetermining the presumptive penalty. (4) Any appearance not covered by subsections (1), (2) or (8) above shall be treated as a first appe$rance. In case of multiple ��olafao�s in any appearance, the dste to be used to measure whether eighteen (181, thirty (30) or forty-eiglrt {48} months has elapsed shall be the date of the vioIation last in time at the fint appesrance, and the date of the vio2ation fust in time at any subsequent appeaxance- (fl OtTzerpen.aities. Nothing in this settion shall restritt oz limit the suthority of the council Lo suspeud up to sixty (60) days, revoke the lieense, ar �npose a civil fine not W easeeed two thousand doliazs ($2,000.00), to impose eonditions or take as�y atfier adverse action in accordance with Iaw, provided, ihat the license holder has been a{;'arded aa opportunity for a hearing in the mgnner pro- vided foi in Section 310.05 of this Code. {gY Efject of responsible businrss practices in de- terntinirzgperzalty. In determiningthe appropriate penalty, the council may, in its discretion, con- sider evidence submitted to it in ihe case of un- contested adverse actions oz submitted to a hearing examiner in a crontested hearing upon which find� � ings af fact have been made that a licensee has folIawed or is likely to iollow in the future respon- sible business practices in regard to sales to in• toxicated persons and sales to miaors_ il) Ror the purposes of sen to intoxicated persons, e.�idence of responsible bvsiness praetiees may iaelude, but is nos limited to, 2?96 we0b:ii ze . 90 Ntlf SR'rI F,G2£9b66 Ol 3JI��0 SJ.3N2J011tl J.lIJ W02i� Tb:OT L66Z-96—Ntif � �--. �cExsrs f3 `�7-�l� § �ia.oi those poliaes, procedures and actions that are implemeated at time ofservice and that: a. Encourage pezsons not tn beoome ia- texieated if they consnme alcoholic bev- erages on the defendant's premises; b_ ptomoEeav�lab�litpofnonalcoholiebev- erages aad food; c. Promote safe ttansportation alterna- tives other thaa driving while intoa-i- eated; d. Prohibit employees and agents of de- fendant from eonsuming alcoholie bev erages while actiag in their capacity aS employee or agents; e. Establish promotions and mazketing ef- forts that pubIicize responsible busi- ness practices to the defendaat's cus- tomers aad community; . f. Imp]ement eomprehensive tra'n'ne pra eQduies; g. ,Maintaia an adequate, Eraiaed num- ber of employeeq and agents for the type and size of defendsnt's business; h. Establish a standardized method for 7�iring quatified employees; i. Reprimand employees who violate em- ployer policies and prxedures; and j. Show that the $censee has enrolled in aecogni2ed coucses providing training to self and one (1) or more emp]oyees of the licensed estabiishment in regard to staadards for responsible fiquor ser vice. (2) Fo�r the purposes of seiroice to minors, evi- dence ofresponsible business practices may include, but is not li.mited to, those listed in subsection (1) and the following: a. Management policies Ehat are imple- mented at the time of service aud that ensure the examination of proof ofiden- ti&cation (as established hy state law) for alI persons seeking service of alco- holic beverages who may reasonably be saspected to be minors; b. Comprehensive training of employees who axe responsible for such exaznina- tion regarding the detection offalse or altered identification; and Supp. No. 30 90 ;d -"-" ^' COURT OF APPEALS NUMBER CX-97-953 c. Enxnllxaeat by the licensee m reeog. nized conrses ptovidin� h�sining to self and aae (1) or mose emplopees of the liceased establishment in regard to standards for responsible liqaor ser- vice. (Ord. No_ 17556, § 1, 425-86; Ord. No. 17657, § 14, 6-8-89; Ord. No. i7675, § 1, 8-22-89; Ord. No. 17694, § 2, 11-7-89; Ord_ No. 17756, §' 1, &7-9fl; Ord. No. 17924, §§ 2, 3, 5-7-92; C.F. I�To. 92-1s29, � 1, 2-9-93) Chapter 410. Noniatofficating Malt Yaquor* Sec. 410.01. Y.icense requixed; definitions; es- ceptions. , (a) No persan shall sell noninto�cating malt liquors at retaiI in Saint Paul without a Iicettse. tb) On-sale licenses shall permit the licensee far the sale of said aoninto�cating malt liquors to sell such for cronsumption on the premises. Oa- saie licenses shall be graated only to restaurants, hotels, bona fide elssbs, establishmeats foT the ea- clusive sale ofnoninta�cating mait bevesages and establishments licensed for the eaclusive sale of into�cating liquars. The term `bona fide clubs" shaR include private clubs licensed under former Chapter 404 o£this Code so long as they meet the requirements of Minnesota Statutes, Section 340A.101, subseetion 7. (c) Off-sale Licenses shall permit the licensee of suth nanintofficai3ng malt Iiquors to sell same in original packages fer consumption off the prem- ises only. (d) Nothingherein contained shall be eonstnied to prohibit the sale and delivery in oripnal pack- ages directly to the eoasumer by the manufac�Eur- er or distributor of nonintoaicatiag malt iiquors. te) No off-saIe license shall 6e issued for any place where aoaintoxicating malt beverages shall be sold for consvmptiou on the premises. •Crosareterence�Liquor and beerregulauons general- ly, Title 74YIV;� inWSi�ting liquor, Ck. 499; use of beer and iato��ating iiqvor pmhibiud in movon pieture drive•fn thr. atres, y 416.O6Sb). 2197 WtlOV : T S L6. 96 Ntif OGI'.-I F.Ia7S"QbF.f� COURT OF APPEALS NLJMBER CX-97-953 �'�:�'� - ;� �yti :�� _ ;� - ;_ ��1: y:: :,.; _ .-: December 30, 1996 STATE OF MINNESOTA OFF'ICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Mianeapolis, Minnesota 55401-2138 Peter P. Pangbom Paralegal City of St. Paul Civif Division 400 City Hall 15 West Keliogg Boufevard St. Paui, Minnesota 55102 g��'�l7 �� RE: Licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the Premises Located at 1066 7th Street East in St. Paul Dear Peter: Per yaur tetter of December 20, 1996, enclosed find the subpoenas you requested for Officer Dean Koehnen and Officer Kenneth Jensen. Sincerely, � �"t._ LOUlSE COOPER Office of Administrative Hearings Telephone: 612/349-2882 enciosure Providing Impartial Hearings for Government and Cifizens An Equal Opportundy Employet Administrative Law Section & Administrative Services (612) 341-7600 � TDD No (612) 341-7346 � Fax No. (612) 349-2665 COURT OF APPEALS NUMBER CX-97-953 ','�....,, � ';vi�;r.::; ' � _ _,_ ��1: y `�, STATE OF MINNESOTA OFFICE OF ADMiNISTRATIVE HEARINGS HEARING SUBPOENA TO: Officer Dean A. Koehnen St. Paui Police Department 100 E. 11th Street St. Paul, Minnesota 55101 GREETINGS: 9�-yi7 15 YOU ARE HEREBY COMMANDED to lay aside ali your business and excuses and to appear befo�e Administrative Law Judge Rita McConneil of the Office of Administrative Hearings of the State of Minnesota, at Room 1503, City Hali Annex, 25 West 4th Street, in the City of St. Paul, Ramsey County, Minnesota, on the 6th day of lanuary, 1997, at �.�3Qo'clock in the forenoon, to appear as a witness in #he matter of Licenses held b�E & K Corporation d/b/a Checker's Nite Club for the Premis�s Located at 1066 7th Street East in St Paul. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kevin E. Johnson, Chief Administrative Law Judge, at Minneapolis, Minnesota this 3 th of December, 1996. �_� � KEVIN E. JO SON Chief Administrative Law Judge 612/341-7600 Subpoena requested by: Peter P. Pangbom (612) 266-8776 COURT OF APPEALS NUMBER CX-97-953 � :}��,...: �,�' '^; ;� _ .�2r. : _ - _��.: y '' STATE OF MINNESOTA OFFICE OF ADMINISTR ATIVE HEARINGS HEARING SLIBPOENA TO: O�cer Kenneth C. Jensen St. Paui Police Department 100 E. 11th Street St. Paul, Minnesota 55101 GREETINGS: 9�-�t7 /5 YOU ARE HEREBY COMMANDED to lay aside all your business and excuses and to appea� before Administrative Law Judge Rita McConnell of the O�ce of Administrative Hearings of the State of Minnesota, at Room 1503, City Hall Annex, 25 West 4th Street, in the City of St. Paul, Ramsey County, Minnesota, on the 6th day of January, 1997, at 9:30 o'ciock in the forenoon, to appear as a witness in the matter of Licenses h�id by E& K Comoration d/b/a Che ker's Nite Ciub for th Pr mise Located at 1066 7th Street East in St PauV. Pursuant to the authority granted at Minn. Stat. § 14.51, Witness, the Honorable Kevin E. Johnson, Chief Administrative Law Judge, af Minneapolis, Minnesota this 30th of December, 1996. � � KEVIN E. JOH ON Chief Administrative Law Judge 612/341-7600 Subpoena requested by: Peter P. Pangborn (612}266-8776 COURT OF APPEALS �� OFFICE OF TFIE CITY ATTORNEY NUMBER CX-97-953 r„ao:n E. ,tir�, crty Aao,� �7-LII� CITY OF SAINT PAUL Norm Co7eman, Mayor December 20, 1996 cinit Division 400 City Hall I S West Kellogg Blvd Samt Paul M'vmesom 55702 Telephone: 672 266-8710 Facsimik: 612 2985679 VIA FAX AND U.S. MAIL Judge Rita McConnell c/o Louise Cooper Office of Admiuistrative Heazings 100 Washington Square, Suite 1700 Minneapolis, Minnesota 55401-2138 RE: Licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the premises located at 1066 7th Street East in Saint Paul Dear Judge McConnell: The purpose of fhis letter is to request subpoenas pursuant to Minnesota Rules, part 1400.7000 relating to the above-mentioned contested case hearing that is scheduled to be heard before you on Monday, January 6, 1997. This request is made of behalf of Ms. Virgnua Palmer, the attorney assigned to this matter. The City of St. Pau1 License Division will be calling these witnesses to testify regazding the incident which serves as a basis for the action against the licenses of E. & K. Corporation d!b/a Checker's Nite Club. In order to ensure these individuals will be in attendance to testify, the City of St. Paul requests from the State Office of Administrative Hearings subpoenas for the fo?lowing individuals: 1.) Officer Dean A. Koehnen 2.) 5t. Paul Police Dept. 100 E. l lth Street St. Paul, MN 55101 Officer Kenneth C. Jensen St. Paul Police Dept. 100 E. l lth Street St. Paul, MN 55101 The hearing is scheduled to start at 930 a.m. on Monday, January 6, 1997, in Room 1503 City Hall Annex, 25 West 4th St., St. Paul, MN 55102. COURT OF APPEALS , /� CJ 7— y/� NUMBER CX-97-953 If you need additional information or have any questions regazding flus request, please do not hesitate to ca11 me at 266-8776. Thank you. Sincerel , > � Peter P. Pangborn Paralegal � COURT OF APPEALS '/�f OFFICE OF "I'I-IE CITY ATTORNEY ' NLTMFiER CX-97-953 ! Timothy E Macc. Ciry Aaorney 9 7- '�j? �1 =... .: . -- CIT'Y OF SAINT PA�, �',, Norm Co7eman, Mayar J L� j`�ry, i p�j ?: ^� � i I}..... � - �.,li: - �'e^=��-� ' I ��-J:;:YJ.�. December 10, 1996 Mr. Michael J_ Kalis Ciecker's Nite Club 1066 7th Street East Saint Paul, Minnesota Civil Division 400 Ciry Xall IS Weu Kellogg Blvd Saint Pau� M'nmesota 55701 NOTICE OF HEARING and Mr. Walter H. FnSelhardt 55106 Telephone: 612 266-8710 Facsintile: 612 298-5619 RE: All licenses held by E. & K. Corporation d/b/a Checker's Nite Club for the premises locatad at 1066 7th Street East in St. Paul License ID NO.: 16335 Our File Number: G96-0518 Dear Mr. Kalis and Mr. Engelhardt: Please take notice that a hearing wi11 be held at the following time, date and place concerning all licenses for the premises stated above: Date: Monday January 6, 1997 Time: 9:30 a.m. Place: Room 1503 L'it� $nil s'�a"LT1EX 25 W. 4th St. St. Paul, bII1 55102 The hearing will be presided over by an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: Name: Rita McConaell Office of Administrative Hearings 100 Washington Square, Suite 1700 Minneapolis, MN. 55401 Telephone: 961-7770 The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises and for adverse action , COURT OF APPEALS �� g 7 �I l 7 NUMBER CX-97-953 against such licenses, under Chapter 310, including sections 310.05 and 310.06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non-intoxicating liquor, authority is also conveyed by Minnesota Statutes section 340A.415. Adverse action may include revocation, suspension, fines and other penalties or conditions. Evidence will be presented to the judge which may lead to adverse action �gainst all the licenses you hold at the above premises as follows: Saint Paul Police Report CN 96-157-804 states that on October 4, 1996 Officer Jensen was sent to Checker's Bar, located at 1066 S. 7th Street, Saiat Paul, and observed a white male daacer with his shotts pulled dowa, exposing his genitals. A patroa had his right hand near or touching the male dancer's genitals. This type of entertainment is in violation of your Entertainment Class 8 license. 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 part5 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 wham 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. Notice of Hearing - Page 2 COURT OF Al'PEALS 1 � C�� —/� f'� NUMBER CX-97-953 �� If you think a stipulation facts, that stipulation will Judge for incorporation int action. or agreement can be reached as to the be presented to the Administrative Law o his or her recommendation for Council If you fail to appear at the hearing, your ability to challenge the 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 objec.*_ion is made and relief requested under Minnesota Statutes, Section 14.60, subdivision 2. If you have any questions, you can call me at 266-8710. Very truly yours, �`��_� �� Virginia D. Palmer Assistant City Attorney cc: Nancy Anderson, Assistant Council Secretary, 310 City Hall Robert Kessler, Director, LIEP Christine Rozek, LIEP Nancy Thomas, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Mpls, MI3 55401 Kathy Smith, Community Organizer, Dayton's Bluff Center for Civic Life, 281 Maria Ave., St. Paul, MN 55106 Notice.of Hearing - Page 3 COL R OF APPEALS )� 7 � _ y �� NLIMBER CX-97-953 t� § 410.04 LEGISL9TIVE CODE A violation of the foregoing shall constitute suffi- cient grounds for adverse action against the li- cense or license application, including revocation or denial of the license. (Code 1956, §§ 310.07-310.10, 310.13, 310.14; Ord. No. 17014, 4-28-83; Ord. No. 17174,10-23-84; Ord. No. 17437, § 1, 2-2487; Ord. No. 17461, § 1, 5-28.- 87; Ord. No. 17474, § 1, 7-7-87; Ord. No. 17657, §§ 11, 13, 6-8-89; Ord. No. 17705, § 3, 1-16-90; C.F. No. 93-1324, § 1, 11-23-93; C.F. No. 941659, § 1, 12-28-94) Sec. 410.045. Safety in on-sale establish- ments. This section applies to on-sale licenses for the sale of nonintoxicating liquor. (a) Notice to police chief. The licensee shall, with- in thirty (30) days following November 4, 1994, notify the chief of police in writing if any firearms as defined in section 225.01 of the Legislative Code are kept on or within the licensed premises. Such notice shall include a description of each such fire- arm and the location where it is kept on the li- censed premises. Thereafter, the licensee shall no- tify the chief of police if there aze any additional firearm or firearms, or changes in the location, number or description of each such firearm listed in the first notice, kept on or cvithin the licensed premises, within five (5) days following any such change. The licensee is responsible for ensuring that the notification given to the chief is updated and accurate with respect to any changes in kind, number or location of fireazms kept on or within the licensed premises. (b) Tr¢ining. The licensee shali, with respect to all employees who (1) are authorized to use a fire- arm on the licensed premises and (2) who aze not prohibited by law from using such a firearm, pro- vide training in fireanns safety and the lawful use of deadly force, as well as in procedures for main- taining arder and peace on the licensed premises by methods other than use of firearms andlor dead- ly force. The training required by tlus subsection shall be acceptable to the chief of police and pro- vided for all existing employees within ninety (90) days foliowing November 4, 1994, and for future employees within sixty (60) days following their employment. (C.E No. 94-859, § 3, 10-5-94) Sec. 410.05. Certain seaual conduct prohib- ited. The following acts or conduct on licensed prem- ises are unlacvful and shall be punished as pra vided by section lA5 of the Saint Paul I.egislative Code: (1) To employ or use any person in the sale or service of alcoholic beverages in or upon the licensed premises wlule such person is un- clothed or in such attire, costume or cloth- ing as to egpose to view any portion of the female breast below the top of the azeola or of any portion of the pubic hair, anus, cleft of the buttocks, wlva or genitals. (2) To employ or use the services of any hostess while such hostess is unclothed or in such attire, costume or clothing as described in subparagraph (1) above. (3) To encourage or permit any person on the licensed premises to touch, cazess or fondle the breasts, buttocks, anus or genitals of any other person. {4) To permit any employee or person to wear or use any device or covering exposed to view which simulates the breast, genitals, anus, pubic hair or any portion thereof. (5) To permit any person to perform acts of or acts which simulate: a. With or upon another person sexual in- tercourse, sodomy, oral copulation, flag- ellation or any seaual acts which aze prohibited by law. b. Masturbation or bestiality. c. With or upon another person the touch- ing, cazessing or fondling on the but- tocks, anus, genitals or female breast. d. The displaying of the pubic hair, anus, vulva or female breast below the top of the azeola. (6) To permit any person to use artificial de- vices or inanimate objects to depict any of the prohibited activities described above. (7) To permit any person to remain in or upon the licensed premises who exposes to pub- lic view any portion of his or her genitals or anus. Supp. No. 30 2202 �� _--. � �� COURT OF APPEALS NUMBER CX-97-953 LICENSES (8) To permit the showing of films, still pic- tures, pictures, electronic reproductian or other visual reproductions depicting: a. Acts or simulated acts of se%ual inter- course, masturbation, sodomy, bestial- ity, oral copulation, $agellation or any seguai acts which are prohibited by law. b• Any person being touched, cazessed or fondled on the breast, buttocks, anus or genitals. c. Scenes wherein a person displays the vulva or the anus or the genitals. d. Scenes wherein artificial devices or in- animate objects are employed to de- pict, or drawings are employed to por- tray, any of the prohibited activities described above. (Code 1956, § 310.19) Sec. 410.06. R,estrictions on licenses. Where a reasonable basis is found by the coun- cil to impose reasonable restrictions upon a li- cense held under this chapter, the council, upon issuing a new license or renewing a license, may impose reasonable conditions and restrictions per- taining to the manner and circumstances in which the business shall be conducted to preserve the public peace and protect and promote good order and security. These reasonable conditions or re- strictions may pertain to: (1) A limitation as to the hours when nonin- tofficating malt liquor may be sold and/or consumed on the licensed premises; (2) A limitation and restriction as to the exact location within a building where nonintox- icating malt liquor will be served and/or sold andlor consumed• (3) Alimitation and restriction as to the means of ingress to or egress from the licensed es- tablishment; (4) A requirement that certain off-street park- ing faciLities be provided; (5) A condition that the license wiil be in effect only so long as the establishment remains primarily a restaurant; Supp. No. 30 2202.1 ♦ � ��v�� § 410.07 (6) A limitation and restrietion as ta the means and methods of advertising the sale of non- into�cating malt liquor on the building and/ or the premises adjacent thereto; (7) Reasonable conditions iimiting the opera- tion of the licensed premises so as to ensure that the licensed business will comport with the character of the district in which it is located and/or to the end that nuisances will be prevented. (Code 1956, § 31020(b); C.F. No. 95-479, § 2, 5-31- 95) Sec. 410.07. Transfer of license; change in service azea. (a) No license granted hereunder shall be trans- ferable from person to person or from place to place. I3o license granted for a specified part of any particular premises shall permit sales of such liquor on a part of such premises not specified in the license, or in an azea adjacent to such licensed premises; provided, however, that the lieense in- spector or his or her designee may waive this lim- itation and allow a temporary eatension of the liquor service area subject to the following criteria herein established by the city council. Failure to make a waiver and/or allow such a temporary eg- tension is not adverse action and does not require notice and hearing in the event of denial or inac- tion: tl) No such extension shall be for more than a continuous twenty-four-hour period and shall be valid oniy at times that liquor sales aze allowed by law; (2) No licensee shall receive more than tcvelve (12) such service estensions in any calen- daz yeaz; (3) The temporary extended sexvice azea can be either indoors or outdoors, but must be immediately adjacent to the licensed prem- ises; (4) All business operations on or in the tempo- rary extended service area shali be in com- pliance with all other requirements of state law and of this chapter, and in particular shall comply with the requirements of Chap- ter 293 of this Legislative Code ielating to noise; �� -`=� .� �: COURT OF APPEALS rIUMBER CX-97-953 LICEA'SES � § 411.03 or furnish or permit another who is leasing, rent- ing or using with or without consideration the li- censed premises to provide or furnish entertain- ment on the lieensed premises without firsthaving obtained a license to do so as hereinafter provid- ed. The provision or furnishing of entertainment without such a license, whether by the licensee or by persons using, renting or leasing the licensed premises, shall be grounds for adverse action against all the licenses held at and for the li- censed premises. It shall not be a defense in an adverse action against the licenses held at and for the licensed premises that the licensee was not awaze or did not know of the provision of such enterainment by persons renting, leasing or using the licensed premises. The license for each class of license provided for in this chapter is a sepazate license, and all the requirements of this chapter for obttuning a license must be met even though the licensee holds or has held a different class license hereunder. (b) Limit¢d entert¢inment Zicense. A person li- censed under Chapter 409 or Chapter 410 may obtain a limited Class A or B license without com- plying with the consent requirements under sec- tion 411.04(b) of this chapter, as further provided in section 411.04(b)(5), (b)(6) and (b)(7) below, and such license shall be limited to permitting anoth- er who is leasing, renting or using the licensed premises, with or without consideration, to pro- vide or furaish entertainment on the licensed premises for a wedding, anniversary or retire- ment dinner or reception, or similaz family or so- cial function. (c) Extended hours. T4�e holder of an extended service license under sections 409.07.1 or 410.04(c) of the Legislative Code is subject to the regula- tions defined therein and may provide entertain- ment during the hours of extended service, but only in conformity with and as authorized by an e�sting entertainment license issued under this chapter. Notwithstanding any other provision of law, the eouncil may, at any time and with respect to any estabiishment, condition or prohibit the provision of entertainment during the hours of er.tended service (i) in order to protect the public peace, welfare and safety, so long as such condi- tions or prohibitions do not relate to the content of Supp. No. 28 the entertainment, and (ii) without notice and hearing, or compliance with any of the procedures provided in Chapter 310 of the Legislative Code. (Code 1956, § 311.01; Qrd. No. 179�1, § 4,1-1492; Ord. No. 17924, § 1, 5-7-92; C.F. No. 92-1799, § 1, 12-22-92; C.F. No. 941660, § 1, 12-28-94) Sec. 411.02. License classification. Any person desiring to provide entertainment on the licensed premises must obtain an enter- tainment license of the applicable type as herein- after provided: Class A-Amplified or nonamplified music and/ or singing by one (1) to three (3) per- formers, and group singing participat- ed in by patrons of the establishment. Class B-All activities allowed in Class A, plus amplified or nonamplified music and/ or singing by perFormers without lim- itation as to number, and dancing by patrons to live, taped or electronically produced music, and which may also permit volleyball and broomball paz- ticipated in by patrons or guests of the licensed estabiishment plus stage shows, theater, and contests. In all of the activities in Classes A and B, all of the participants, including patrons, shall be fully clothed at all times. Class C-All activities aliowed in Classes A and B, plus performance by male or fe- male performers without limitation as to number, where ciothing is minimal but in compliance with Chapters 409.09 and 410.05 of the Legislative Code. (Code 1956, § 311.02; Ord. No. 17434, § 2, 2-3-87; Ord. No. 17633, § 2, 3-7-89; Ord. No. 17901, § 5, 1-14-92; C.F. No. 92-1799, § 1, 12-22-92; C.F. No. 94-1660, § 2, 12-28-94) Sec. 411.03. Fee. The annual license fees for Class A, B and C entertainment licenses shall be established by or- dinance as specified in section 310.09(b). (Code 1956, § 311.02; Ord. No. 17434, § 2, 2-3-87; Ord. No. 17633, § 2, 3-7-89; Ord. No. 17901, § 6, 1-14-92; C.F. No. 92-1799, § 1, 12-22-92; C.F. No. 94-1660, § 3, 12-28-94) 2202.3 97-yr7 ,,� � COURT OF APPEALS NUMBER CX-97-953 (b) Class II Zicenses. Vv'here an application for the grant, issuance or reneccal of a Class II license meets all the requirements of law, and there e�sts no ground for denial, revocation or suspen- sion of, or the imposition af conditions upon, such license, the director shall grant, issue or renew said license in accordance �sith the application. (c) Class I and Class II iicenses, if denied by direcfor. in the event the director, in the case of both Class I and Class II licenses, determines that the application for grant, issuance or re- newal of the license does not meet all the require- ments of law or that there effist grounds for denial, revocation, suspen;ion or other adverse action against the license or the licensee, the director shall recommend denial of the applica- tion and foliow the procedures for notice and hearing as set forth in secrion 310.05. (d) Class 777 Zicenses. (1) Grant, issuance or transfer. Upon receipt of a fully completed application and required fees for a Class III license, and after the investigation required, the director shall notify the council. A public hearing shall be held on the grant or issuance of all Class III licenses. In any case where the director recommends denial of the grant, issuance or renewal of a Class III iicense, br where the council believes that there is evidence which might result in action adverse to the original or renewal application, the direc- tor on his or her oticn initiative, or at the direction of the council, shall follow the pmcedures for notice and hearing as set forth in section 310.05. Where the applica- tion for the grant, issuance or renewal of a Class III license meets all the require- ments of law, and where there e�sts no ground for adverse action, the council shall by resolution directthat the director issue such license in accordance with law. (2) Renewal. The director shall in �criting no- tify the council, and the affected neighbor- hood organization(s) established for citizen participation purposes, at least sixty (60) days before the e�cpiration date of all Class III licenses. A public hearing on the re- newal of any such license shall not be held Supp. No. 33 � I LICEI.'SES �'�-- �//7 $ 310.05 eacept on the request of a councilmember, which request shall be incorporated in the form of a council resolution. Upon the pas- sage of such resolution, the director shall give written notice of such hearing to the affected neighborhood organizations. Such public hearing�does not repiace or amend any of the procedures set forth in section 310.Ob of the Legislative Code. If no re- quest for a public hearing is made before the espiration of any such license, and where there e�cists no ground for adverse action, the director shall issue the license in accordance with law. (e) Appeal; CZass I or Class II licenses. An appeal to the city council may be taken by any person aggrieved by the grant, issuance or re- newal of a Class I or Class II license; provided, however, that the appeal shall have been filed with the city clerk rvithin thirty (30) days after the action by the director. The only grounds for appeal shall be that there has been an error of law in the grant, issuance or renewal of the license. The appeal shall be in writing and shall set forth in particular the alleged errors of law. The council shall conduct a hearing on the appeal within thirty (30) days of the date of filing and shall notify the licensee and the appellant at least ten (10) days prior to the hearing date. T'he proce- dures set forth in section 310.05, insofaz as is practicable, shall apply to this hearing. Following the hearing, the council may aflirm or remand the matter to the inspector or director, or may reverse or place conditions upon the license based on the councii's determination that the decision was based on an error of law. The filing of an appeal shall not stay the issuance of the license. (fl No waiver by renewal. The renewal of any license, whether Class I, II or III, shall not be deemed to be a waiver of any past violations or of any grounds for imposition of adverse action against such license. (Code i956, § 510.04; Ord. No. 17455, § 1, 5-21-87; Ord. No. 17551, § 1, 4-19-88; C.F. No. 94-500, § 1, 7-6-94; C.F. No. 9b-473, § 3, 5-3i-95; C.F. No. 95-1517, 1-31-96) Sec. 310.05. Hearing procedures. (a) Aduerse action; notice and hearing require- ments. In any case _ where the council may or 2027 COURT OF APPEALS �� 9 �� y� 7 NUMBER CX-97-953 ¢ 330.05 LEGTSI.pTtVE CODE intends to consider anp adverse action,inciuding the revocatioa or suspension of a Iicense, the imposition of rnnditions upon a license, or the denial of an application for the grant, issuance or renewal of a license, or the disapproval of a license issued by the State of Minnesota, the applicant or licensee shall be givea notice and an oppoitunity to be heazd as pro��ded herein. The council may consider such adverse actions when recommended bq the inspector, by the director, by the director of any eaecutive depar�ent estab- lished pursuant to Chapter 9 of the Charter, by the city attomey or on its own initiatiae. (bj Notice. Ia each such case where adverse action is or �cill be considered by the council, the applicant or licensee shall have been notified in writing that adverse action may be t�ken against the license or application, and that he or she is entitled to a hearing before acHon is taken by the couacil. The notice shail be sen�ed or mailed a reasonable time before the hearing date, and shall state the piace, date and time of the hearing. The notice shall state the issues involved or grounds upon which the adverse action may be sought or based. The council may request that such written notice be prepazed and served or mailed by the inspector or by the city attomey. (c) Hearing. Where there is no dispute as to the facts underlying the violation or as to the facts establishing mitigating or aggravating circum_ stances, the hearing shall be field before the conncil. Othenvise the hearing shall be conducted before a hearing eaaminer appointed by the coun- cil or retained by contract with the city for that purpose. The applicaat or the licensee shall be provided an opportunity to present e�zdence and az'gument as weII as meet adverse testimony or evidence by reasonable C70SS-PTaminghOII and rebuttal evidence. The hearing eaaminer may in its discretion permit other interested persons the opportunity to present testimony or evidence or otherwise participate in such hearing. (c-1) Procedure; hearing ex¢miner. The hearing egaminer shall heaz all evidence as may be pre- sented on behalf of the city and Yhe applicant or licensee, and shall present to the council written findings of fact and conclusions of law, together with a recommendation for adverse action. The councit shall consider the evidence con- tained in the record, the hearing examiaer's rec- ommended findings of fact and conclusions, and shall not cansider any factuat testimony not pre- viously submitted to and considered by the hear- ing egaminer. After receipt of the hearing examiner's findings, conclusions, and recommen- dations, the council shall pro�zde the applicant or licensee an opportunity to present oral or written arguments alleging error on the part of the exam- iner in the application of the law or interpretation of the facts, and to present argumeat related to the recommended adverse action. IIpon conclu- sion of that hearing, and after considering the record, the eacaminer's findings and recommenda- tions, together with such additional azguments presented at the hearing, the council shall deter- mine what, if any, adverse action shall be taken, which action shall be by resolution. The council may accept, reject or modify the findings, conclu- sions and zecommendations of the hearing exam- ine:: (c-2) Ex-parte contacts. If a license mattez has been scheduled foz an adverse hearing, council members shall not discuss the license matter K�ith each other or with any of the parties or interested persons involved in the matter uniess such dis- cussion occurs on the record during the hearings of the matter or during the council's final deliber- ations of the matter. No interested person shall, with knowledge that a license matter has been scheduled for adverse hearing, convey or attempt ta convey, oraIly or in writing, any inf'ormation, argument or opinion about the matter, or any issue in the matter, to a council member or his or her staff untii the council has taken finai action on the matter, provided, however, that nothing herein shall prevent an inquiry or communica- tions regazding status, scheduling or procedures concerning a license matter. An interested person, for the purpose of this paragraph, shall mean and include a person who is an officer or employee of the licensee which is the subject of the scheduled adverse hearing, or a persoa who has a financial interestin such licensee. (d) Licensee or applicant may be represented. The licensee or applicant may represent himself " or choose to be represented by another. �� Supp. No. 33 2028 µ;� COURT OF APPEALS NUMBER CX-97-953 i 97-yi7 LICENSFS (e) Recor� evidence. The hearing eaaminer shall receive and keep a record of such proceedings, including testimony and exlubits, and shall re- ceive and give weight to e��idence, including heaz- say evidence, which possesses probative calue com- monly accepted by reasonable and prudent persons in the conduct of their a$'airs. (fl Council action, resolution to contain fxnd- ings. Where the council takes adverse acfion with respect to a license, licensee or applicant for a license, the resolution by which such action is tak- en shall contain its findings and determination, including the imposition of conditions, if any. The council may adopt all or part of the findings, con- clusions and recommendations of the hearing ex- aminer, and incorporate the same in its resolution taking the adverse action. (g) Additional procedures where mquirnd. Where the provisions of any statute or ordinance require additional notice or hearing procedures, such pro- visions shall be complied with and shall super- sede inconsistent provisions of these chapters. This shall include, without limitation by reason of this specific reference, Minnesota Statutes, Chapter 364 and Minnesota Statutes, Section 340A.415. (h) Discretion to hear notwithstanding with- drawal or surrender of application or Zicense. The council may, at its discretion, conduct a hearing or direct that a hearing be held regazding revocation or denial of a license, notwithstanding that the applicant or licensee has attempted or purQorted to withdraw or surrender said license or applica- tion, if the attempted withdrawai or surrender took place aftzr the applicant or licensee had been notified of the hearing and potential adcerse ac- tion. (i) Continuanc¢s. 4�'here a hearing for the pur- pose of considering revocation or suspension of a license or other disciplinary action involcing a li- cense has been scheduled before the council, a continuation of the hearing may be granted by the council president or by the council at the request of the licensee, license applicant, an intsrested person or an attorney representing the foregoing, upon a showing of good cause by the party making the request. Supp. I3o. 30 2029 § 310.05 (j) If the council imposes an adverse action as deSned in section 310.01 above, a generic notice of such action shall be prepazed by the license in- spector and posted hy the licensee so as to be vis- ible to the public during the effective period of the adverse action. The licensee shall be responsible for taking reasonable steps to make sure the no- tice remains posted on the front door of the li- censed premises, and failure to take such reason- able precautions may be grounds for further adverse action. (k) Imposition of costs. The council may impose upon any licensee or license applicant some or all of the costs of a contested hearing before an inde- pendent hearing examiner. Ttie costs of a contest- ed hearing include, but aze not limited to, the cost of the administrative law judge or independent hearing examiner, stenographic and recording costs, copying costs, city staff and attomey time for which adequate records have been kept, rental of rooms and equipment necessary for the hear- ing, and the cost of expert witnesses. The council may impose all or part of such costs in any given case if (i) the position, claim or defense of the licensee or applicant was frivolous, azbitrary or capricious, made in bad faith, or made for the pur- pose of delay or harassment; (ii) the nature of the violation was serious, or involved violence or the threat of violence by the licensee or empioyees thereof, or involved the sale of drugs by the lic- ensee or employees thereof, and/or the circum- stances under which the violation cecurred were aggravated and serious; (iii) the violation created a serious danger to the pubiic health, safety or welfare; (iv) the violation involved unreasonable risk of harm to vulnerable persons, or to persons for whose safety the licensee or applicant is or was responsibie; (v) the appiicant or licensee was sufficiently in control of the situation and there- fore could have reasonably avoided the violation, such as but not lunited to, the nonpayment of a required fee or the failure to renew required in- surance policies; (vi) the violation is covered by the matrix in section 409.26 of the Legisiative Code; or (�zi) the violation involved the sale of cigarettes to a minor. (1) Imposition of fines. Tlie council may unpose a fine upon any licensee or license appiicant as an adverse license action. A fine may be in such. COURT OF APPEALS ,^ 9 7—� L{ )� NUNIBER CX-97-953 � § 310.05 LEGISL�.T'IVE CODE amount as the couacil deems reasonable aad ap- propriate, having in mind the zegulatory and en- forcement purposes embodied in the particuiar li- censing ordinance. A fine may be ia addition to or in lieu of other adverse action in the sole discre- tion of the council. To the extent any other pro��i- sion of the Legislative Code pro�zdes for the im- position of a fine, bo£h provisions shall be read together to the extent possible; provided, howev- er, that ia the case of any con$ict or inconsistency, the other provision shall be controlling. (Code 1956, § 510.05; Ord. No.17551, § 2, 419-58; Ord. No. 17559, §§ 1, 2, 5-17-88; Ord. ?�o. 17659, § 1, 6-13-89; Ord. No. 17911, § 1, 3-10.92; C.F. No. 94-46, § 7, 2-2-94; C.F. No. 94-898, y�§ 2, 3, 7-13-94; C.F. No. 94-1340, § 2, 10-19-94; C.F. ?�o. 95-473, § 4, 5-31-95) Sec. 310.06. Revocation; suspension; adverse actions; imposition of condi- tions. (a) Council may take adverse action. T'he coun- cil is authorized to take adverse action, as defiaed in section 310.01 above, against any or all licenses or permits, licensee or applicant for a license, as provided in and by these chapters. Adverse ac- tions against entP*+��*+n+ent licenses issued under Chapter 411 of the Legislative Code may be initi- ated for the reasons set forth in subsection (b) below, or upon aay lawful grounds which are com- municated to the license holder in writing prior to the hearing before the council. Such actions shall be initiated and carried out in accordance with the procedures outline in section 310.05; provid- ed, however, that the formal notace ofhearing shall be used to initiate the adverse action without the use of prior procedural steps. (b) Basis for action. Such adverse action may be based on one (1) or more of the following rea- sons, which are in addition to any other reason specifically provided by law or in these chapters: (1) The license or permit was procured by mis- representation of material facts, fraud, de- ceit or bad faith. (2) The applicant or one (1) acting in his or her behalf made oral or written misstatements or misrepresentations of material facts in or accompanying the applicatitrn. (3) The license was issued in violatioa of any of the pro�zsions of the Zoning Code, or the premises which are licensed or which are to be licensed do not comply vcith applicable heatth, housing, fire, zoning and building codes and regulations. (4) The license or permit was issued in viola- tion of law, wzthout authority, or under a material mistake of fact. (5) The licensee or applicant has failed to com- ply with any condition set forth in the li- cense, or set forth in the resolution grant- ing or renewing the license. (6) a. 1`he licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has violated, or performed any act which is a violation of, any of the provisioas of these chapters or of any statute, ordi_ nance oz regulation reasonably related to the licensed activ'sty, regazdless of whether criminal charges have or have not been broughtin connection there- with; b. The licensee or applicant has been con- victed of a crime that may disqualify said applicant from holding the license in question under the standards and procedures in Minnesota Statutes Chapter 364; or c. The licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has engaged in or permitted a pattern or practice of conduct of faiIure to comply with laws reasonably related to the li- censed activity or from which an inf'er- ence of lack of fitness or good character may be drawn. (7) The activities of the licensee in the licensed activity created or have created a serious danger to the public health, safety or wei- faze, or the licensee performs or has per- formed his or her work or activity in an unsafe manner. (8) The licensed business, or the way in which such business is operated, maintains or per-_ .� .'•�� Supp. No. 30 2030 COURT OF APPEALS NUMBER CX-97-953 § 310.05 LEGISLATIVE CODE amount as the council deems reasonable and ap- propriate, having in mind the regulatory and ea- forcement purposes embodied ia the particulaz li- eensing ordinance. A fine may be in addition to or in lieu of other adverse action in the sole discre- tion of the council. To the extent any other provi- sion of the Legislative Code pro�-ides for the im- position of a fine, both pruvisions shall be read together to the extent possible; pro�ided, howev- er, that in the case of any conflict or inconsistency, the other provision shall be controlling. (Code 1956, § 510.05; Ord. No.17551, § 2, 419-88; Ord. No. 17559, §§ 1, 2, 5-17-88; Ord. No. 17659, § 1, 6-13-89; Ord. No. 17911, § 1, 3-10-92; C.F. ?�70. 9446, § 7, 2-2-94; C.F No. 94-696, §§ 2, 3, 7-13-94; C.F. No. 94134Q § 2, 10-19-94; C.E \o. 95-473, § 4, 5-31-95) Sec. 320.06. Revocation; suspension; adverse actions; imposition of condi- t10IIS. (a) Council may take adverse action. The coun- cil is authorized to take adverse action, as defined in section 310.01 above, against any or all licenses ar permits, licensee or applicant for a license, as provided ia and by these chapters. Adverse ac- tions against entertainment lirenses issued ander Chapter 411 of the Legislative Code may be initi- ated for the reasons set forth in subsection (b) below, or upon any lawful grounds which aze com- municated to the license holder in Fcriting prior to the hearing before the council. Such actions shall be initiated and carried out in accordance with the procedures outline in section 310.05; pro��id- ed, however, that the formal notice ofhearing shall be used to initiate the adverse action vrithout the use of prior procedural steps. (h) Basis for ¢ction. Such adverse action may be based on one (1) or more of the fo2Jowing rea- sons, which aze in addition to any other reason specifically provided by law or in these chapters: (1) The license or permit vc�as procured by mis- representation of material facts, fraud, de- ceit or bad faith. (2) The applicant or one (1) acting in his or her behalf made oral or written misstatements or misrepresentations of material facts in or accompanying the application. I y7- y� � (3) The license was issued ia violatioa of any of the provisions of the Zoning Code, or the premises which aze licensed or which aze to be licensed do not comply with applicable health, housing, fire, zoning and building codes and regulations. (4? The license or permit was issued in viola- tion of law, without authority, or under a material mistake of fact. (3) The licensee or applicant has failed to com- ply with any condition set forth in the li- cense, or set forth in the resolution grant- ing or renewing the license. (6) a. T'he licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has violated, or performed any act which is a ti�iolatioa of, any of the provisions of these chapters or of any statute, ordi- nance or regulation reasonably related to the licensed activity, regazdless of whether criminal chazges have or have not been brought in connection there- with; b. The licensee or applicant has been con- victed of a crime that may disqualify said applicant from holding the license in question under the standards and procedures in Mianesota Statutes Chapter 364; or c. The licensee or applicant (or any per- son whose conduct may by law be im- puted to the licensee or applicant) has engaged ia or germitted a pattern or practice of conduct of failure to comply with laws reasonably related to the li- censed activity or from which an infer- ence of lack of fitness oz good character may be drawn. (7) The activities of the licensee in the licensed activity created or have created a serious danger to the public health, safety or wel- faze, or the licensee performs or has per- formed his or her work or activity in an unsafe manner. (8) The licensed business, or the way in wliich such business is operated, maintains or per- :=':�. '� : Supp. No. 30 2030 ,� .: :^;`, :,`-:: �::,� COURT OF APPEALS NUMBER CX-97-953 (10 (11) � � 9�-yi7 LICENSES mits conditions that unreasonably annoy, injure or endanger the safety, health, mor- als, comfort or repose of any considerable number of inembers of the public. (9) Failure to keep sideccallcs or pedestrian ways reasonably free of snow and ice as required under Chapter 114 of the Saint �aul Leg- islative Code. ) The licensee or applicant has shou 6y past misconduct or unfair acts or dealings: phys- ical abuse, assaults or violent actions done to others, including, but not limited to, ac- tions meeting the definition of criminal sex- ual conduct pursuant to ?VIinnesota Stat- utes Sections 609.342 through 609.3451; sexual abuse, physical abuse or maltreat- ment of a child as defined in Minnecota Stat- utes Section 626.556, subdivisions 2 and 10e, inciuding, but not limited to, acts which con- stitute a violation of'�SSinnesota Statutes Sec- tions 609.02, subdivision 10; 609.321 through 6Q9.3451; or 617246; neglect or en- dangerment of a child as defined in ?VIinne- sota Statutes Section 826.5b7, subdivision 2; the manufacture, distribution, sale, gift, delivery, transportation, eschange or baz- ter of a controlled substance as defined in Minnesota Statutes Chapter 152;the pos- session of a controlled substance as defined in Minnesota Statutes Chapter 152 in such quantities or under circumstances giving rise to a reasonable inference that the pos- session was for the purpose of sale or dis- tribution to others; or by the abuse of alca hol or other drugs, that such licensee or applicant is not a person of the good moral character or fitness required to engage in a licensed activity, business or profession. The licensee or applicant has materially changed or permitted a material change in the design,construction or configuration of the licensed premises ccithout the prior ap- provai of the city council in the case of Class III licenses, the director in the case of Class II licenses, and the incpector in the case of Class I licenses, or without first ha��ing ob- tained the proper building permits from the city. , Supp. ?Jo. 30 2031 § 310.06 (12) The licensee or applicant has violated seo- tion 294.01 of the Legislative Code, or has made or attempted to make a prohibited ex parte contact with a council member as pro- vided in section 310.05(c-2) of the Legisla- tive Code. 'I`he terms "licensee" or "applicant" for the pur- pose of this section shall mean and include any person who has any interest, whether as a holder of more than five (5) percent of the stock of a cor- poration, as a partner, or othercvise, in the prem- ises or in the business or activity which aze li- censed or proposed to be licensed. With respect to any license for activities entitled to the pmtection of the FirstAmendment, notwith- standing the foregoing provisions, neither the lack of good moral character or fitness of the licensee or applicant nor the content of the protected speech or matter shall be the basis for adverse action against the license or application. (c) Imposition of rnasonable conditions and/or restrictions. When a reasonable basis is found to impose reasonable conditions andlor restrictions upon a license issued or held under these chap- ters, any one (1) or more such reasonable condi- tions and/or restrictions may be imposed upon such license for the purpose ofpromotingpublic health, safety and welfaze, of advancing the public peace and the elimination of conditions or actions that constitute a nuisance or a detriment to the peace- ful enjoyment of urban life, or promoting security and safety in neazby neighborhoods. Such reason- able conditions and/or restrictions may include or pertain to, but are not limited to: (1) A limitation on the hours of operation of the licensed business or establishment, or on particulaz types of activities conducted in or on said business or establishment; (2) A limitation or restriction as to the location within the licensed business or estabiish- ment whose [sic] particular type of activi- ties may be conducted; (3) A limitation as to the means of ingress or egress from the licensed establishment or its paziflng lot or immediately adjacent area; (4) A requirement to provide off-street pazking in excess of other requirements of law; ° COURT OF APpEALS NUMBER CX-97-953 $ 310.06 i LEGISL9TIVE CODE (5) A limitation on the manner and means of advertising the operation or merchandise of the licensed establishment; C6) Any otfier reasonable condition or restrio- tion limiting the operation of the licensed business or establishment to ensure that the businesS or establishment wi11 hazmo- nize with the character ofthe azea in �rhich it is located, or to prevent the development or continuation of a nuisance. The inspector may impose such conditions on Class I licenses with the consent of the license holder, or may recommend the imposition of such conditions as an adverse action against the license or licens- es; the inspector has the same po�cer �ith respect to Class II licenses. The council may impose such conditions on Class III licenses �rith the consent of the license holder, or upon any class of ]icense as an adverse action against the license or licens- es follocving notice and hearing as may be re- quired. Such conditions may be imposed on a li- cense or licenses vpon issuance or renecral thereof, or upon and as part of any adverse action against a license or licenses,including suspension. Con- �litions imposed on a license or licenses shall re- maia oa such licenses when renewed and shaIl �°ntinue the�'eafter until removed by the council in the case of conditions on Class III licenses or conditions imposed by adverse action, aad by the �P�or in the case of Class I and II licenses. ' (d) Standards for multiple Zicense determinQ_ t��+- In any case in which the council is autho- rized to take adverse action against less than all of the licenses heid by a licensee, or appIied for by � applicant, the following staadards may be used: (1) The nature and gravity ofthe grounds found by the council to exist upon which the ad- verse action wotild be based; (2) The policy andlor regulatory goals for the particulaz licenses involved, either as em- bodied in the Legislative Gode or as found and determined by the council; �3) The interrelationship of the licenses and their relative importance to the overall busi- ness enterprise of the licensee or applicant; (4) The management practices of the licensee or appiicant e�ith respect to each of such licenses; . (5) The eatent to which adverse action against less thaa all of the licenses or applicatians would result in difficulty in enforciag and monitoring the adverse action taken; (6) The hazdship to the licensee or applicant that would be caused by applying adverse action'to all licenses or applications; and (7) The hazdship and/or danger to the public, or to the public health and welfare, thst would result from adverse action against less than all of the licenses or applications. (Gode 1956, § 510.06; Ord. No.17584, § 1, 8-25-8g; Ord. ?�*o. 17657, § 15, 6-8-89; Ord. No. 17659, § 2, 6-13-89; Ord. No.179�1, §§ 2, 3,1-1492; Ord. No. 17917, §§ 2, 3, 3-31-92; Ord. No. 17922, § 2, •!-Zg_ 92; C.F. No. 94500, § 3, 7-6-94; C.F. No. 941340, § 3, 10.19-94; C.E No. 95-473, § 5, 5-31-95) Sec. 310.07. Terminatioa of licenses; surety bonds; insurance contracts. (a) Automatic termin¢tion, reinstatement; r¢_ sponsibility of Zicensee. AA licenses orpermits which must, by the provisions of these chapters or other ordinances or laws, be accompanied by the filing and maintenance of insurance policies, deposits, guarantees, bonds or certifications shall automat- ical2y terminate oa cancellation oz withdra�yai o{ said policies, deposits, bonds or certifications. No Iieensee may continue to operate or perform the licensed activity after such termination. The lic- ensee is liable and responsible for the filing and ma�ntenance of such policies, deposits, guaraa_ tees, bonds or ceriifications as are required in these chapters, and shall not be entitled to assert the acts or omissions of agents, brokers, employees, attorneys or any other persoas as a defense or justification foz failure to comply with such filing and maintenance requirements. In the event the licensee reinstates and files such policies, depos- its, bonds or certifications within thirty (30) days, 2he license is automatically reinstated on the same *srms and conditions, and for the same period as origina.Ily issued. After thirty (30} days, the appli- cant must reapply for a renewal of his license as though it were an original application. (b) Bonds and insurance requirements: (1) Surety Companies: All surety bonds run- ning to the City of Saint Paul shali be writ- �� .,� : �;;.i Supp. ?�;o. 30 2�32 9�-y/� If you need additional information or have any questions regarding this request, please do not hesitate to call me at 266-8776. Thank you. Sincerel , : J� �� Peter P. Pangbom Pazategal . t((�.E� f ^� g .< Presented By Council File # (�� Green Sheet # �� RESOLUTION CITY OF SAINT PAUL, MINNESOTA �G Referred To � Committee: Date 1 � 2 3 4 5 WHEREAS, the City of Saint Paul, O�ce of License, Inspections and Environmental 6 Protection brought an adverse action against the licenses held by E& K Corporation d/b/a 7 Checker's Nite Club, for the premises located at 1066 East 7th Street, alleging a violation of 8 their Entertainment Class B license; and 9 10 WHEREAS, on.or about December 10, 1996 the licensee was duly notified that a 11 hearing had been scheduled before an Administrative Law Judge on January 6, 1997; and 12 13 WHEREAS, the licensee did not appeaz at the January 6, 1997 heazing and the 14 Administrative Law Judge declazed the licensee to be in default and took the matter under 15 advisement on the e�ibits presented by the City; and 16 17 WHEREAS, the Findings of Fact, Conclusions and Recommendation of the 18 Administrative Law Judge dated Februazy 13, 1997 were served on the Councii of the City of 19 Saint Paui, with copies sent to the licensee; and 20 21 WHEREAS, a public hearing was held on April 2, 1997 to consider the 22 Recommendation, at which time the licensee did appeaz and presented testimony in opposition 23 to the Findings and Conclusions of the Administrative Law Judge; NOW, THEREFORE BE 24 IT 25 26 RESOLVED, that the City Councii of the City of Saint Paul, after due deliberation 27 based upon all the files, records and proceedings herein, including the documents and exhibits 28 submitted to the Administrative Law Judge, the Findings of Fact, Conclusions and 29 Recommendation issued subsequent thereto, and the arguments of the licensee at the public 30 hearing, does hereby adopt and incorporate herein by reference the Findings of Fact and 31 Conclusions of the Administrative Law Judge. 32 33 FURTHER I2ESOLVED, that the Recommendation is amended to reflect the 34 Council's discussion of the seriousness of the violation, and the licensee is hereby ordered to 35 pay a fine of Three Thousand Dollazs ($3,000) within thirry (30) days of the adoption of this 36 resolution. 37 38 FURTFIER RESOLVED, that licensee shall pay the costs of the hearing before the 39 administrative law judge based upon the determination that the defense of the Licensee in this 40 matter was frivolous, arbitrary and capricious. 41 ��- �i > STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 February 13, 1997 City Clerk Saint Paul City Council 386 City Hall 15 West Kellogg Blvd. Saint Pau1, Minnesota 55102 Re: The Licenses held by E. & K. Corporation, dJb/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota File No. 80-2111-10861-6 Dear City Clerk: Enclosed for service upon the Saint Paul City Council are the Findings of Fact, Conclusions of Law and Recommendation for the above-referenced matter. A copy of this Report has also been served this day on Virginia Palmer of the Office of the City Attorney and Walter Englehardt on behalP of the licensee. Sincerely, ! 'ta A. McConnell inistrative Law Judge cc: Ms. Virginia Palmer Mr. Walter Engelhardt Providing Impartal Hearings for Government and Citizens An Equal Opport Employ Administrative Law Section & Administrative Services (8}2) 341-7600 � TDD No. (612) 3A1-7346 � Fax No. (612) 348-2665 9�- �i� STATE OF MINiVESOTA OFFIC.E OFADMINiSTRATR'E HEARINGS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 9 February 13, 1997 Ms. Virginia D. Palmer Assistant City Attorney 400 City Hall 15 West Rellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Ralis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 Re: The Licenses of E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota File No. 80-2111-10861-6 Dear Ms. Palmer and Gentlemen: Enclosed for service upon you please find a copy of the Findings o£ Fact, Conclusions of Law and Recommendation in the above-captioned matter. A copy has also been served this day upon the City Clerk. Sincerely, / / � ( 1�� ita A. McConnell Administrative Law Judge yCC: City Clerk Providmg Impartiai Neanngc for Government and Q6z.ens An Equal Opportunity Employer Adinu�istiatioe Law gection & Adnnnistrativ? Servic?s !>�2! ?4'I. i �00 • TDD No (612) 341-7346 � Fax fJo (512) 349-2F>65 9 7- �/� 7 STATE O�' MINNESOTA OFFICE OF ADMINISTRATIi7E HEARINGS FOR THE CITY OF SAINT PAUL In re the Licenses held by E. & R. Corporation, d/b/a Checker's 23ite Club 1066 7th Street East, Saint Paul, Minnesota 80-2111-10861-6 FINDINGS OF FACT CONCLUSIONS OF LAW AL3D RECOMI�NDATIOI3 The above-entitled matter came on for hearing before Administrative Law Judge Rita A. McConnell on January 6, 1997 at 9:30 a:m., in Room 1503, Saint Paul City Hall Annex, 25 West 4th Street, Saint Paul, Minnesota, 55102. The record closed on January 6 at the close of the hearing. Virginia D. Palmer, Assistant City Attorney, appeared on behal£ of the City of Saint Pau1, Of£ice of License, Inspections and Environmental Protection (LIEP). No representative appeared on behalf of the license holder. Notice is hereby given that this Report is a recommendation only and not a final decision. The Saint Paul City Council will make the final decision. After a review of the record, it may adopt, reject, or modify the Findings of Fact and Recommendations contained herein. Pursuant to Saint Paul Legislative Code Section 310.05, the City Council will provide each party adversely affected by this Report to present oral or written argument alleging error in this Report and present arguments to the Council related to any recommended adverse action. Parties should contact the City Clerk, Saint Paul City Council, 386 City Hall, Saint Paul, Minnesota 55102, to ascertain the procedure for filing exceptions or presenting argument. 9�-�� STATEMENT OF ISSUES 6 1. Whether licensee permitted sexual acts or conduct on the licensed premises in violation of Section 410.05 0£ the Saint Paul I,egislative Code. 2. Whether licensee provided on the licensed premises entertainment that is permitted only under a Class C license. 3. Whether licensee should be assessed the costs of the contested hearing on the grounds the licensee's de£ense was frivolous, arbitrary or capricious. Based upon all the files, records and proceedings herein, the Administrative Law Judge makes the £oliowing: FINDINGS OF FACT 1. Licensee E. & R. Corporation (Licensee) holds a variety o£ licenses for the business it operates as Checkers Nite Club at 1066 7th Street East in Saint Paul. Included in those licenses is a Class B Entertainment license. The premises is licensed for 150 seats. City's Exhibit No. 2. 2. On October 4, 1996, Saint Paul Police Officers Dean Roehnen and Kenneth Jensen £iled Police Reports indicating they were dispatched to Checkezs Nite Club in the early hours of October 4 where they observed a male employee of the Club dancing in briefs or underwear. Officer Jensen's report indicated the dancer's genitals were exposed and that a patron had his hand on or near the genitals during the dance. City's Exhibit No. 1. 3. By letter dated October 25, 1996, Assistant City Attorney Virginia Palmer notified the Licensee that the conduct described above violated the Saint Paul Legislative Code and formed the basis for adverse action against the licenses. City's Exhibit No. 3. � 9�-yi) 4. On November 4, 1995, Liceasee through its stockholder Walter Englehardt responded to the Palmer's letter. In that response, Englehardt stated as follows: _ This is what the Of£icer saw when he walked into the bar. The male dancer for the night was wearing a pair of Calvin Rlein boxer shorts, under the boxer shorts the dancer was wearing a gold almost flesh colored T-back. (This is something like a jock strap with the front and rear covered.) The officer observed a white male dancer with his shorts pulled down, the o£ficer did not see the T-back and assumed the genitals were exposed. City's Exhibit No. 4. 5: In response to Englehardt's letter, Palmer advised the Licensee that the conduct admitted in the letter was not permitted under an Entertainment Class B license and offered Licensee the option of proceeding to an administrative hearing or resolving the matter short of a hearing. City's Exhibit No. 5. 6. LiCensee did not respond to Palmer's Novembez 20 letter. Accordingly, on December 10, 1996, Palmer sent Licensee a notice of the hearing held on January 6, 1997. City's Exhibit No. 6. 7. The license fee for a Class C Entertainment License is $1,600.00. The fee paid by Licensee for a Class B Entertainment License was $500.00 8. Neither Walter Engelhardt nor any other representative appeared on behalf of the Licensee at the scheduled hearing. Based upon the foregoing, the Administrative Law Judge makes the following: CONCLUSIONS 1. The Administrative Law Judge City Council have jurisdiction in this and the Saint Paul matter pursuant to 3 9�-yr`� Minn. Stat. Section 14.50 and Saint Paul Legislative Code Sections 310.05 and 310.06. The Licensee received timely and proper notice of the hearing of this matter. _ 2. The Saint Paul Legislative Code provides for adverse action against a licensee i£ a licensee fails to comply with any condition set forth in the license, or if the licensee violates a provision of the Code. Saint Paul Legislative Code Section 310.06(b)(5) and (6). 3. Under a Class B Entertainment license, the Licensee is authorized to provide entertainment in which "all o£ the participants...[are} fully clothed at all times." Saint Paul Legislative Code Sec. 411.02, Class B. In order to provide entertainment which includes performers who are not fully clothed, Licensee is required to obtain a Class C license which permits clothing that is "minimal but in compliance with Chapters 409.09 and 410.05 of the Legislative Code." Saint Paul Legislative Code Sec. 411.02, Class C. 4. Saint Paul Legislative Code Section 410.05 contains several sections which prohibit the exposure of genitals by employees or patrons on licensed premises, including section (1) which prohibits the "employ...[of] any person in the sale or service of alcoholic beverages in or upon the licensed premises while such person is unclothed or in such attire, costume or clothing as to expose to view any portion of the ... genitals." 5. The Licensee is in default herein under Minn. Rule 1400.6000 as a result of its failure to make an appearance at the heazing. 6. Pursuant to Minn. Rule 1400.6000, the allegations set out in the Notice and Order for Hearing may be taken as true and deemed proved without further evidence when a party defaults. 7. The City has established that the Licensee provided entertainment in which the participants were not fully 4 9� clothed in violation of the conditions oE a Class B Entertainment license. 8. The violation of the conditions of the Class B = license was intentional and witflout regard to the limitations on that category of license as set £orth in the Saint Paul Legislative Code. 9. The defense of the Licensee in this matter was frivolous, arbitrary and capricious, justifying the 1lIl position of the costs of the hearing on Licensee. Based upon the foregoing Conclusions, the Administrative Law Judge makes the £ollowing: RECOMMENDATION IT IS HEREBY RECOMMEENDED that the Saint Paul City Council take adverse action against the licenses of E. & R� Corporation by assessing a fi e in the amount of ^�-Thre-e- 3, coo, ou Thousand ^; �,� '• "^' , "-"' ( � and requiring the licensee to pay the costs of the administrative hearing. " Dated this 13th day of k'ebruary, 1997. �� l[,� ` � it� A. McConnell )� � n I\ A nistrative Law Judge � (�/ cl- C1 r Reported: Taped, not transczibed. NOTICE The Saint Paul City Council is requested to serve a copy of its final decision upon the Administrative Law Judge as well as the parties by £irst class mail. 5 q�-�� MEMORANDUM The allegations set forth by the City in its Notice of Hearing establish�a violation of that Section of the Saint Paul Legislative Code ("the Code") which prohibits certain sexual conduct on licensed premises. Since the Licensee did not appear at the hearing, these allegations may be taken as true. The Licensee did, however, respond to the allegations in writing prior to the hearing, establishing a basis for its defense in this matter. In addition, the police officers who allegedly observed the prohibited conduct also £ailed to appear at the hearing. Consequently, the record alone does not establish a violation of Section 410.05 of the Code. The facts which are accepted as true are those admitted in the letter from Licensee's representative. The letter's description of the dancer's costume indicates the dancer was wearing a flesh colored jock strap, and was dancing with his boxer shorts pulled down. From this description, it is reasonable to conclude that the dancers was 'not "fully clothed," but was rather wearing "minimal" clothing during the entertainment. Such costuming is permitted only with a Ciass C license under Section 411.02 of the Code. Providing such entertainment with only a C1ass B license is a violation of the conditions in the license and the provisions of Section 411.02. The City Council is permitted to impose a fine upon the licensee in an amount it deems reasonable and appropriate under the circumstances. Saint Paul Legislative Code Section 310.05(1). The Code sets forth certain presumptive penalties £or Code violations by on-sale licensed premises. The council is allowed to deviate from those penalties "where the council £inds and determines that there exist substantial and compelling reasons making it more [� �'7-4i7 appropriate to do so.° Saint Paul Legislative Code Sec. 409.26. The Code does not specify a presumptive penalty for the - type of violation at issue in this matter. It does, however, indicate that a fine of $1,500.00 is presumptively appropriate for a£irst violation by a licensed premises with a seating capacity of 150. LIEP argues this penalty is insuf£icient since the Licensee already saved $1100.00 in licensing fees by paying for a Class B rather than a Class C license. In order to penalize Licensee for this violation, LIEP suggests the assessment of a$2,000.00 fine. Although the evidence supports the conclusion that Licensee disregarded the restrictions on its license, that disregard does not appear so flagrant as to justify imposition of a penalty in the amount requested. LIEP's request overlooks the $500.00 already paid by the Licensee for the Class B license. If the presumptive penalty is imposed, the Licensee will pay the City a total of $2,000.00, thereby incurring expenses of $400.00 beyond the amount it would have paid for an appropriate license. This amount, together with the imposition of the hearing costs, is a sufficient penalty in light of the violation. R.A.M. 7 97-- �,r� � STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 1Q� Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 March 21, 1997 Fred Owusu City Clerk 1Z0 City Hall 15 W. Kellogg Blvd. St. Pauf, MN 55102 Re: In the Matter of the License heid by E& K Corporation d/bla Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota ; OAH Docket No. 80-2111-10861-6 Dear Mr. Owusu: On February 13, 1997, Administrative Law Judge McConnefi. Served the Findings of Fact, Conclusions and Recommendation in the above-entitled matter. Enclosed is the official record, inciuding a copy of the tape.recording of the hearing. If Our file in this matter is now being closed. Very truly yours, �� Ll�/� %�� , �'io�-�� i N�ncy M. Thomas Docket Clerk Telephone: 612l341-7615 NT Enc. Providing Impartial Hearings for Government and Citizens An Equal Opp dkiini ty Empioy Administrative Law Section & Administrative Services (612) 341-7600 � TDD No. (612) 341-7346 � Fax No. (612) 349-2665 9 �- yi7 AFFIDAVIT OF SERVICE BY MAIL Rita A. McConnell, of the City of St. Paul, County of Ramsey, in the State of Minnesota, being duly sworn, states that on the 13th day of February, 1997, she served the annexed Findings of Fact, Conclusions of Law and Recommendation, upon the individuals named below by mailing to them a copy thezeof, enclosed in an envelope, postage prepaid, and by depositing same in the U.S. Mail at Saint Paul, Minnesota as £ollows: Ms. Virginia D. Palmer Assistant City Attorney 400 Gity Hall 15 West Kellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Kalis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 City Clerk Saint Paul City Council 386 City Hall 15 west Kellogg Blvd. Saint Paul, MN 55102 FURTHER AFFIANT SAYETH NOT. �C�.�-P� a.ta A. McConnell Subscribed sworn to befo e me �� day o£ February, 1997. No ary u lic ..rr..«�..«..�.... � STEVEN F. NkATTAINI NOTpflY PUBLIC -MINNESOTA RAMSEY CAUN7Y �hCmm�nwa��m�.2oao STATE OF n'IINNESOTA OFFICE OFADM17INISTRAT[VE IIEARINGS 100 Washington Square, Suite ]700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 /%� � February 13, 1997 Ms. Virginia D. Palmer Assistant City Attorney 400 City Hall 15 47est Kellogg Blvd. Saint Paul, MN 55102 Mr. Walter Engelhardt Mr. Michael J. Kalis c/o Checker's Nite Club 1066 7th Street East Saint Paul, MN 55106 Re: The Licenses of E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East Saint Paul, Minnesota File No. 80-2111-10861-6 Dear Ms. Palmer and Gentlemen: Enclosed for service upon you Findings of Fact, Conclusions the above-captioned matter. A this day upon the City Clerk. cc: City Clerk please find a copy of the of Law and Recommendation in copy has also been served Sincerely, , = __ ��ry2�� ita A. McConnell Administrative Law Judge � 7- y� i Providing Impartial Hearings for Government and Citizens An Eq�a Opportu Employer Adminicpa�we Lew Sechon & Ad�ninistraUve Serviros (f 12! 341-7500 � TDD No (6121 341-7346 • Faz IJo (612) 349-2665 STATE OF n'IINNESOTA ❑FFICE OF ADMINISTRATTVE IIEARINCS 100 Washington Square, Suite 1700 100 Washington Avenue South Minneapolis, Minnesota 55401-2138 �� , 9�-yf� February 13, 1997 City Clerk Saint Paul City Council 386 City Hall 15 west Kellogg Blvd. Saint Paul, Minnesota 55102 Re: The Licenses held by E. & K. Corporation, d/b/a Checker's Nite Club 1066 7th Street East, Saint Paul, Minnesota File No. 80-2111-10861-6 Dear City Clerk: Enclosed for service upon the Saint Paul City Council are the Findings of Fact, Conclusions of Law and Recommendation for the above-referenced matter. A copy of this Report has also been served this day on Virginia Palmer of the Office of the City Attorney and Walter Englehardt on behalf of the licensee. Sincere�y, - �%��-� �-�� ' � ,.�-;, ftYta A. McConnell Administrative Law Judge cc: Ms. Virginia Palmer Mr. Walter Engelhardt Prowding Impartial Heanngs for Government and Citizens An Equal Opportunity Employer Adrninistrative Law Sechon & n,dministrabve Services B12? 349-7500 • TDD No (6?2) 341-7346 � Fax No (512) 349-2665 97 I7 '� OFFICE OF ADMINISTRATIVE IiEARINGS FOR TFiE COIINCIL OF THE CITY OF SAINT PAIIL In re the Licenses a£ E. & K. Corporation d/b/a Checker's Nite Club 1066 7th Street East CITY'S PROPOSED EXIiIBITS January 6, 1997 TO: Judge Rita McConnell, Administrative Law.Judge, Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota 55401 The following constitutes a list of the City's proposed exhibits for the Administrative Hearing on January 6, 1997. Exhibit No. Exh. No. 1 Description St. Paul Police Report CN 96-157-804, dated October 4, 1996 (2 pp.); Exh. No. 2 License information regarding E. & K. Corporation d/b/a Checker's Nite Club (1 p.); Exh. No. 3 Notice of Violation letter dated October 25, 1996, with Affidavit of Service (3 pp.); Exh. No. 4 Exh. No. 5 Exh. No. 6 Letter from Walt Engelhardt to Virginia Palmer dated November 4, 1996 (2 pp.); Letter from Virginia Palmer to Walter Engelhardt dated November 20, 1996 (1 p.); Notice of Hearing letter dated December 10, 1996, with Affidavit of Service (4 pp.). g7-�i � Also attached please find courtesy copies of applicable St. Paul City ordinances: St. Paul Legislative Code § 310.05 St. Paul Legislative Code § 310.06 St. Paul Legislative Code § 310.17 St. Paul Legislative Code § 410.05 Respectfully submitted this 6th day of January, 1997. � X � �/.%/29'tM.,GC'..�.J , 0.-!" ✓h-e� Virgi a D. Palmer Assistant City Attorney Office of The City Attorney 400 City Aall 15 West Kellogg Boulevard Saint Paul, Minnesota 55102 {612)266-8710 97--�fI� Lic ZD......•••••........ STAT.....••• ............. Business Name.....,...... Doing Business As........ Address .................. Zip -•• ................... Exp Date ................. License Name ............. NOTE AREA ................ s 7/17/90 CHANGE OF BUSINESS NAME PER RESOLUTION SIGNED BY ROBERT KESSLER 062591 PH ON APPN FOR NEW CLASS B GAMBLING LOCATIO 16335 AC E & K CORPORATION CHECKERS NITE CLUB 1066 7TH ST E 55106 04/30/97 LIQ-ON SALE-OVER 100 SEATS-B SUNDAY ON SALE LIQUOR ENTERTAINMENT-CLASS B RESTAURANT (B}-MORE THAN 12 SEATS INSP CHANGE F120M O1 TO 02 ON 3/20/92 10401 150 SEATS 5-5-87 . N LICENSE APP'D C.F. 91-1159 . 5/15/96 -$2,OOO.QO CHECK FOR PARTIAL PAYMENT OF . LICENSE FEES RETURNED "NSF"' - LAB . 6/25/96 HOME ADDRESS INFO OF OFFICERS GIVEN TO Press <RETURN> to continue... Alt-Z FOR HELP° VT102 ° FDX ° 9600 E71 ° LOG CLOSED ° PRSNT OFF ° . JOY OF MESHBESAER & SPENCE LAW FIRM.--LAP-LIC . 8/22/96--REC'b PAYMENT FOR $2,000 BAD CHECK - , 'I'�/'�/Q�__Rx:('F!Tili.'T1 7.TCF.NCF! T77�VMFTQT RIlC'K ��TTCFi� 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.. UNIONAMERICA INS CO LL966109 07/31/96 04/30/97 MICHAEL J KALIS WALTER A ENGELHARDT Dealer No ................ Tax Id ................... 5121502 Worker Comp Exp Date..... 04/30/95 Telephone ................ 776-7915 Press 'C' to continue, 'P' to print, or 'R' to redisplay... Alt-Z FOR HELP° VT102 ° F17X ° 9600 E71 ° LOG CLOSED ° PRINT OFF ° � s � In Re the Licenses of E. & K. Corporatio � d/b/a Checker's Nite Ctub ,..�_._ .,_.,_ ,.r_ .,