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91-1429 � � . �IN ,�� I� ,_ , , O ( �� Cduncil File # � �{o[ 9 i G�reen Sheet # RESOLUTION CITY OF INT PAUL, MINNESOT�# � ' ( , Presented By ' Referred To Commi�tee: Date f. __ �`" i RESOLVED, that the Intoxicating Liquor On Sale, Off Sale� Malt, Sunday On Sale Liquor, and Cigarette licenses held by ESW Inc., dba Easy Str�eet West for the premises at 616 Como Avenue in Saint Paul are hereby suspended,for a period of two days, provided that one day of the suspension is stayed for a period of 12 months on condition that the said licensee shall have no further violations of l�w during that period. The one day suspension shall take place on the second Sunday follbwing publication of this Resolution. This Resolution and the action taken above are based upon the proceeding before the Administrative Law Judge, the documents and exhibits introduc�ed therein, the testimony offered by and on behalf of the licensee during the Coun�il hearing on July 18, , 1991, and the deliberation of the Council in open session. The Co�incil adopts the findings of fact and conclusions of law of the Administrative Law J�dge contained in her report dated June 19, 1991. The Report of the AL.T is attached her�eto and made part of this resolution. The Council declines to impose the penalty recomrmended by the Administrative Law Judge. ' The action taken represents a downward departure from the ��presumptive penalty � in Section 409.26 of the Saint Paul Legislative Code. This departurel is based on the reasons stated in the memorandum within the ALJ's report. A copy of this resolution, as adopted, shall be sent by first cl ss mail to the Administrative L.aw Judge and to the licenseholder. I Yeas Na s Absent Requested by Depa�tment of: imon oswi z ' i on acca ee --- e t man -- i une i son BY� � c �, i Adopted by Council: Date A�G 6 1991 Form Approved by C��ity Attorney Adoption Certified by Council Secretary gy: ,(�.� ��. �` I � BY� ��'�'� � � ' Approved by Mayor I or Submission to Council � Approved by Mayor: Date AUG 7 1991 ' , � � By: ��,1�f�� ` By� � PU611SHED AUG 10�91 � � , • . i _ , . ��,` � � � � ��CEIVE� JUN 2 0 1991 66-2101-5598-6 �IT�' � �TO��I��Y STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL � `�; �,�; In the Matter of the F�NDINGS OF FACT, : f� License of E S W Inc. CONCLUSIONS AND '' � d/b/a Easy Street West RECOMMENDATION '�� .. ; ,:�,ry. The above-entitled matter came on for hearing before Administrative Law Judge Suzanne Born on June 13, 1�91 at 9: 00 a.m. in conference room 15Q4A, Cit�� Ha?1 Ann.`'�..A� JL. P ul, P�Iinnesota. Thomas J. Weyandt, Assistant City Attorney, 647 !City Hal1, St. Paul, Minnesota 55102 appeared on behalf of the C�ty of St. Paul. David A. Eichinger, President of E S W Inc. , 616 W st Como Avenue, St. Paul, Minnesota appeared on behalf of Responde t. The parties stipulated to the facts as set forth in Exhibit 1-5 and 6a-6f `a w'i, which were offered by the City and received into e �idence pursuant =� to the parties ' stipulation. The record closed o June 13 , 1991 �;`«� . . .f� 4 (Y"f at the conclusion of the hearing. _ << °� This Report is a Recommendation, not a final decision. The , � : City Council will make the final decision after review of the record and after providing an opportunity to t e Licensee to present oral or written arguments to it. The Coun il may accept, reject or modify the findings, conclusions and ecommendations �' contained herein. ,��:,_�.;- ,,, STATEMENT OF ISSUE N:• . The issue in this proceeding is whether the Li ensee permitted � � - the display and consumption of alcoholic beverages on its premises after 1: 00 a.m. on April 20, 1991 contrary to St. P ul Legislative Code § 409 • � / (C., . � y � : sd; ;'�.':' d..� . Based upon the record herein, the Ac�;nin�str tive Law Judge makes the following: FINDINGS OF FACT 1. The Notice of Hearing in this matter was d ly served upon Licensee E S W Inc. by letter dated May 14, 1991. �xhibit 1. The Notice stated the place, date, time of the hearing, and the grounds upon which adverse action was being sought as foll ws: On April 20, 1991, at about 2 : 00 a.m. , pe sons were permitted to display and consume alco olic beverages in the licensed premises in viol tion of § 409 . 07 (c) of the St. Paul Legisl tive , . �. ��-��-� y' Code. In addition, the bartender furn ' shed alcoholic beverages to patrons of the bar fter 2 : 00 a.m. Police officers were admitted to the bar only after the bartender had re oved bottles and glasses from the top of the ar. 2 . The records of the License and Permit Divi ion of the City �- of St. Paul list the license holder as E S W, Inc. Licensee is a �3�� corporation whose sole owner is David A. Eichin er. Licensee "�Yr�� operates a bar located at 616 Como Avenue, St. aul, Minnesota ;.�; �,,; . 55103 doing business as Easy Street West. Licens e holds an on- ~ �� sale liquor and a Sunday liquor license from the Ci y of St. Paul. Exhibit 2 . ; �� 3 . At approximately 2 : 00 a.m. April 20, 1991, Officer T. Gillet and Sergeant D. Cavanaugh, members of the C�ity of St. Paul police force, observed exterior and interior light on at the bar known as Easy Street West. They also observed ap roximately six vehicles in the parking lot and/or parked at the c rb immediately adjacent to the bar. 4 . Officer Gillet and Sergeant Cavanaugh approached the building on foot and peered into the windows wh'ch provided an unobstructed view of most of the interior. They o served several people in the bar and glasses and bottles on he bar. They . observed a man behind the bar open a bottle re embling a beer bottle and placed it on the bar in front of a pers seated at the -;�;;"";:_ bar. 5. Officer Gillet and Sergeant Cavanaugh req�iested a marked squad to assist them. Officer Drutschmann, a Sit. Paul police :;:. officer, responded to their request. He knocked on �the front door, ' announced "police" and instructed that the door be unlocked. 6. An individual came to the door but did not unlock it until after at least three requests by Officer Druts hmann. While waiting for the door to be unlocked, Officer G llet observed, through the window, a person, later identified as the bartender, Jimmy David Sears, remove bottles and glasses from the top of the bar. ' ;; �. 7 . Upon gaining entry, nine people were .d termined to be present. One patron was observed exiting the men' s room holding a partially filled bottle of beer. Several beer b ttles and drink glasses were on the bar. Exhibits 6b, 6c, 6d, 6e, and 6f. 8 . Sears and others present stated they were having a party because it was Sears ' last night of employment. Se geant Cavanaugh concluded that several of the patrons were obvious y intoxicated. 9 . Licensee's President David A. Eiching r admits that alcoholic beverages were displayed and consumed on the premises in violation of the ordinance. �I I � �- �. � � � 9�� 9 10. The bartender Sears did not have Eiching r's consent to be on the premises past normal closing hours. Ei hinger did not have any prior knowledge that a party was to be held on Sears' last night of employment. ' Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: ,.. ,� ;�;�>; ,� �r 4 .�� K k!�;.�.. CONCLUS I ONS <;�, � ';t '�, 1. Minn. Stat. § 340A. 415 (1990) provides in ertinent part: .. ;�: ,�,µ The authorit issuin or a rovin an re ail license or "'�' Y 5 PP g Y �,�,��'�. permit under this chapter shall either su pend for up to �.'f��. 60 days or revoke the license or permit or impose a civil fine not to exceed $ 2 , 000. 00 for each iolation on a finding that the license or permit h�lde has f.ailed to comply with an applicable statute, rule or ordinance relating to alcoholic beverages. No suspension or revocation takes effect until the lic nse or permit holder has been afforded. an opportunity , for a hearing under §§ 14 . 57 to 14 . 69 of the administr tive procedure act. � �. 2 . St. Paul Legislative Code § 409. 07 (c) pro ides: No person shall consume or display or al ow consumption �,r.�,.�; or display of liquor upon the premises of an on-sale �`.�� licensee at any time when the sale of suc liquor is not `�� permitted. � �� ` -,�� , 3 . The St. Paul City Council and the Administr tive Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14 .50 and 340A. 415. 4 . Licensee received timely and proper notice f the hearing. The City has compl-ied with all procedural a d substantive requirements of law and rule. , . :.a 5. Alcoholic beverages were displayed and were being consumed ' on the premises of Licensee on April 20, 1991, after proper closing "` hours. 6. The Licensee has violated St. Paul Legisl tive Code § 409 . 07 (c) . 7 . St. Paul Legislative Code § 409. 26 (b) ets forth the presumptive penalties for violations of the liquor license code. The presumptive penalty for permitting the display or consumption of alcoholic beverages when the sale of such iquor is not permitted, for the first offense, is 2 consecutive ays suspension of the license. 8 . St. Paul Legislative Code § 409 . 26 (a) pro ides in part: Th�Se penaltle q��./�.2 y'�. hoWe e � lndividua �er,S ar po esumed to be r ma at the e eX e �i^'here uthe 1 maY devlap e°Prla e for e king it more ists substa council finds ther from in ery thes� Stand aPPropriate�tial a�d Co and determi an reaSOns thatardS' the co t� dO SO• When dev�g reasoreis apProAriate, Sp�C-�fY why the p�n lt 1 ProViae t W g, from 9• A dve y s e le�t� r l t t e n from the pres fipt a�tion is aPAro d ls mOre �r 'f�.y e Priat ��. Jud e Based upo� t pena1tY is also ap lr this cas� b ,.- ��;�•� y��i p opriate_ , ut deviatioh �;c,. g makes the fo-11oW h�,°in5 ConClusio -;��'E'�` ns, the Ad j IT IS RECOI�EN mlfi�istrative Law°' ;�� OUncil HEREBY RES DATION , license f or o adverse PaCtFULLY RECO� �'�Ib ne day. l�n again ENDED that � Dated this 19th day O f St Licensee byh s St• Paul City � pending the June, 1991. I suza e Bo � rn Administrat ' lve Law Judge Pursuant N�TICE� � the AdmiZS req ir dlth' Stat. § �; , Re �istrative LaW Serve its fina2• subd' 1, the � p , �:.� ., Ported: Judge bY fir 1 decislon St. pau �� . Taped� not transcribe St �Iass mai 1�� ea� Aart �ity Y and d. Tape No_ 10,222 ,:��;` , _ � ,';� I : . ! '��— r'�� c:u�' • � /:._� ,`�nmmunrrn�a 1� '/ �`c�.��.�r,U, ECEI ED :`.�o,�s�uHO9.'!�[i? �{ ��'� ,,� . Y �`� � � ' '�- �UN 21 19g � �. 1 ��...:_ ._. ,,. CITY ��..::.k��:46 �LERK 'n.�iuu�n�acu9�" . . STATE OF M I N N ESOTA - _ OFFICE OF ADMINISTRATIVE HEARINGS '�-- � ` �� .F � ; FIFTH FLOOR, FLOUR EXCHANGE BUILDING 310 FOURTH AVENUE SOUTH MINNEAPOLIS,MINNESOTA 55415 (612)341-7600 ;� .! � June 19, 1991 !, � Alb�rt B. O.l son .,:_ _ City Clerk 386 City Hall St. Paul, MN 55102 Re: In the Matter of the License of E S W Inc. ' d/b/a Easy Street West �'� OAH File No. 66-2101-5598-6 � I Dear Mr. Olson: Enclosed are the Findings of Fact, Conclusions an Recommendation in the above-referenced matter. � Yours truly, � — Suzanne Born Administrative Law Judge sB: ii Enclosure I AN EQUAL OPPORTUNITY EMPLOYER 'I .- , . � ` -� l�i9>> ., 1 ��/�a9 ,,� �r1 �`� 66-2101-5598-6 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL In the Matter of the F�NDINGS OF FACT, License of E S W Inc. , CONCLUSIONS AND d/b/a Easy Street West RECOMMENDATION i ��. The above-entitled matter came on for Ihearing before '� Administrative Law Judge Suzanne Born on June 13 , 991 at 9 : 00 a.m. in conference room 1504A, City Hall Annex, St. aul, Minnesota. Thomas J. Weyandt, Assistant City Attorney, 647 City Hall, St. Paul, Minnesota 55102 appeared on behalf of the ity of St. Paul. David A. Eichinger, President of E S W Inc. , 616 est Como Avenue, St. Paul, Minnesota appeared on behalf of Respond nt. The parties stipulated to the facts as set forth in Exhibi s 1-5 and 6a-6f which were offered by the City and received into e idence pursuant to the parties ' stipulation. The record closed n June 13 , 1991 at the conclusion of the hearing. � This Report is a Recommendation, not a fina decision. The City Council will make the final decision after a review of the record and after providing an opportunity to he Licensee to present oral or written arguments to it. The Cou cil may accept, reject or modify the findings, conclusions and recommendations contained herein. STATEMENT OF ISSUE The issue in this proceeding is whether the L' censee permitted the display and consumption of alcoholic beverage on its premises after 1: 00 a.m. on April 20, 1991 contrary to St. Paul Legislative Code g 409 . 07 (c) . � :�'ri, Based upon the record herein, the Administ ative Law Judqe makes the following: FINDINGS OF FACT 1. The Notice of Hearing in this matter was duly served upon Licensee E S W Inc. by letter dated May 14 , 1991. Exhibit 1. The Notice stated the place, date, time of the hearing and the grounds upon which adverse action was being sought as fol ows: On April 20, 1991, at about 2 : 00 a.m. , p�ersons were permitted to display and consume alcpholic beverages in the licensed premises in violation of § 409 . 07 (c) of the St. Paul Legis,lative ;Mi 1 .� : � , �� /�.�� , � � Code. In addition, the bartender fur�ished alcoholic beverages to patrons of the ba�} after 2 : 00 a.m. Police officers were admitted to the bar only after the bartender had r moved bottles and glasses from the top of the bar. 2 . The records of the License and Permit Div sion of the City of St. Paul list the license holder as E S W, Inc. Licensee is a corporation whose sole owner is David A. Eichinger. Licensee operates a bar located at 616 Como Avenue, St. Paul, Minnesota 55103 doing business as Easy Street West. Licen ee holds an on- sale liquor and a Sunday liquor license from the ity of St. Paul. ;, Exhibit 2 . ""�" .� . w . 3 . At approximately 2 : 00 a.m. April 20, 991, Officer T. � Gillet and Sergeant D. Cavanaugh, members of the ity of St. Paul police force, observed exterior and interior lights on at the bar icnown as Easy Street West. They also observed a�proximately six vehicles in the parking lot and/or parked at the �curb immediately adjacent to the bar. 4 . Officer Gillet and Sergeant Cavanaug approached the building on foot and peered into the windows w ich provided an unobstructed view of most of the interior. They observed several people in the bar and glasses and bottles on the bar. They � observed a man behind the bar open a bottle r sembling a beer bottle and placed it on the bar in front of a per on seated at the bar. 5. Officer Gillet and Sergeant Cavanaugh r quested a marked squad to assist them. Officer Drutschmann, a St. Paul police officer, responded to their request. He knocked o the front door, announced "police" and instructed that the door e unlocked. 6. An individual came to the door but did no unlock it until after at least three requests by Officer Drutschmann. While - waiting for the door to be unlocked, Officer illet observed, through the window, a person, later identified als the bartender, Jimmy David Sears, remove bottles and glasses fram the top of the ;;.� bar. '� 7 . Upon gaining entry, nine people were �etermined to be present. One patron was observed exiting the mejn' s room holding a partially filled bottle of beer. Several beer ottles and drink glasses were on the bar. Exhibits 6b, 6c, 6d, 6 , and 6f. 8 . Sears and others present stated they we e having a party because it was Sears ' last night of employment. S rgeant Cavanaugh concluded that several of the patrons were obvio sly intoxicated. 9 . Licensee ' s President David A. Eichi ger admits that alcoholic beverages were displayed and consumed o the premises in violation of the ordinance. r I � :;� . � ` „a:,< , � , x�� , � :;t- � , I V I 1 v �� ouncil File # ��- / �Z OR � 9 � ' Green Sheet # RESOLUTION 'I CITY OF INT PAUL, MINNESOTA ; � ' I , � r :£< .,�� Presented By �� `;�� Referred To Co ittee: Date -_- �_ :y. RESOLVED, that the Intoacicating Liquor On Sale, Off S le Malt, Sunday On Sale Liquor, and Cigarette licenses held by ESW Inc., dba Easy �treet West for the premises at 616 Como Avenue in Saint Paul are hereby suspended for a period of two days, provided that one day of the suspension is stayed for a per�od of 12 months on condition that the said licensee shall have no further violations of law during that period. The one day suspension shall take place on the second Sunday f�llowing publication of this Resolution. This Resolution and the action taken above are based upc�n the proceeding before the Administrative Law Judge, the documents and exhibits intro�uced therein, the _ testimony offered by and on behalf of the licensee during the Co ncil hearing on July 18,, 1991, and the deliberation of the Council in open session. The Council adopts the findings of fact and conclusions of law of the Administrative Lav� Judge contained in her z.:. report dated June 19, 1991. The Report of the AL,J is attached hereto and made part of � �"� this resolution. The Council declines to impose the penalty reco�imended by the Administrative Law Judge. I �.,. , The action taken represents a downward departure from the presumptive penalty in Section 409.26 of the Saint Paul Legislative Code. This departure is based on the reasons stated in the memorandum within the ALJ's report. � ' A copy of this resolution, as adopted, shall be sent by firs� class mail to the Administrative Law Judge and to the licenseholder. Yeas Nays Absent Requested by Dipartment of: imon �- oswitz on --- ' acca ee ettman -- une `--�- i son BY� �— a Ado ted b Council: Date AllG 6 �9�� Form Approved liy City Attorney P Y • - Adoption Certified by Council Secretary By: � ��g�y B : ��;�� r` _ y Arrroved by Ma}�or for Submission to Approved by Mayor: Date AUG` 7 1991 Council � �. B ��-��i sy: y� ns:s��rn n i ir � �1"Q 1 . ._. _. y � • ,.. _. . ��,_ �� v�� N 2 � �99� 66-2101-5598-6 �'��"�'' ��'��'� STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS t n;; FOR THE CITY OF ST. PAUL =`f � � ��„�,�" � In the Matter of the FINDINGS OF FACT, �� License of E S W Inc. , CONCLUSIONS AND {;��` d/b/a Easy Street West RECOMMENDATION � " � �' I ��,�.: The above-entitled matter came on fo hearing before Administrative Law Judge Suzanne Born on June 13�, 1991 at 9: 00 a.m. lri conference room 15�4A, C1.±�' Hc^��1 Ann�X� S�. P31i1., �iinnasota. Thomas J. Weyandt, Assistant City Attorney, �47 City Hall, St. Paul, Minnesota 55102 appeared on behalf of th City of St. Paul. David A. Eichinger, President of E S W Inc. , 616 West Como Avenue, St. Paul, Minnesota appeared on behalf of Respo dent. The parties stipulated to the facts as set forth in Exhi�its 1-5 and 6a-6f which were offered by the City and received into evidence pursuant ` ` _; _� to the parties ' stipulation. The record closed on June 13 , 1991 - �� at the conclusion of the hearing. I '� x��f ��_', � This Report is a Recommendation, not a fi al decision. The ,. City Council will make the f inal decision aft�r a review of the � ``' record and after providing an opportunity to the Licensee to � present oral or written arguments to it. The C�ouncil may accept, reject or modify the findings, conclusions a�id recommendations �r,,; contained herein. _�� ,, STATEMENT OF ISSUE The issue in this proceeding is whether the Licensee permitted - the display and consumption of alcoholic beverages on its premises after 1: 00 a.m. on April 20, 1991 contrary to S�. Paul Legislative Code § 409 . 07 (c) . � {.�: Based upon the record herein, �he Adinin��trative Law Judge ' makes the following: FINDINGS OF FACT ' 1. The Notice of Hearing in this matter was duly served upon Licensee E S W Inc. by letter dated May 14 , 199 . Exhibit 1. The Notice stated the place, date, time of the heari�g, and the grounds upon which adverse action was being sought as �ollows: On April 20, 1991, at about 2 : 00 a.m. � persons were permitted to display and consume alcoholic beverages in the licensed premises in iolation of § 409 . 07 (c) of the St. Paul Le�islative I . 9�-��-� 9 Code. In addition, the bartender furnished , alcoholic beverages to patrons of th bar after 2 : 00 a.m. Police officers were admi ted to the bar only after the bartender h d removed bottles and glasses from the top o the bar. 2 . The records of the License and Permit Division of the City of St. Paul list the license holder as E S W, Inc. Licensee is a corporation whose sole owner is David A. ichinger. Licensee operates a bar located at 616 Como Avenue, St. Paul, Minnesota 55103 doing business as Easy Street West. Licensee holds an on- - sale liquor and a Sunday liquor license from the City of St. Paul. Exhibit 2 . ; €°�. 3 . At approximately 2 : 00 a.m. April 0, 1991, Officer T. Gillet and Sergeant D. Cavanaugh, members of the City of St. Paul police force, observed exterior and interior lights on at the bar known as Easy Street West. They also obser ed approximately six vehicles in the parking lot and/or parked at the curb immediately adjacent to the bar. 4 . Officer Gillet and Sergeant Cava augh approached the building on foot and peered into the windo s which provided an unobstructed view of most of the interior. hey observed several people in the bar and glasses and bottles on the bar. They : observed a man behind the bar open a bottlle resembling a beer bottle and placed it on the bar in front of a' person seated at the bar. ;,,.>; 5. Officer Gillet and Sergeant Cavanaugh requested a marked squad to assist them. Officer Drutschmann, a St. Paul police officer, responded to their request. He knocked on the front door, announced "police" and instructed that the door be unlocked. 6 . An individual came to the door but did not unlock it until after at least three requests by Officer ',Drutschmann. While waiting for the door to be unlocked, Offi er Gillet observed, through the window, a person, later identif' ed as the bartender, Jimmy David Sears, remove bottles and glasse from the top of the bar. 7 . Upon gaining entry, nine people w re .determined to be present. One patron was observed exiting t e men' s room holding a partially filled bottle of beer. Several b er bottles and drink glasses were on the bar. Exhibits 6b, 6c, 6 , 6e, and 6f. 8 . Sears and others present stated they were having a party because it was Sears ' last night of employmen�. Sergeant Cavanaugh concluded that several of the patrons were olbviously intoxicated. 9 . Licensee' s President David A. Eichinger admits that alcoholic beverages were displayed and consumed on the premises in violation of the ordinance. � - . ' ' • . �/'��9 10. The bartender Sears did not have Ei�hinger's consent to be on the prem�ises past normal closing hours� Eichinger did not have any prior knowledge that a party was to b� held on Sears ' last night of employment. I Based upon the foregoing Findings of Factl, the Administrative Law Judge makes the following: ; ''ii CONCLUSIONS I ' �r.`� � 1. Minn. Stat. § 340A. 415 (1990) providels in pertinent part: The authority issuing or approving any retail license or ��4�; permit under this chapter shall eitY�er suspend for up to ��` 60 days or revoke the license or per�it or impose a civil fine not to exceed $ 2 , 000. 00 for each violation on a Finding that the license or per.mit �older has failed to comply with an applicable statute, rule, or ordinance relating to alcoholic beverages. No suspension or revocation takes effect until theI license or permit holder has been afforded_ an opportlZnity for a hearing under §§ 14 . 57 to 14 . 69 of the admifiistrative procedure act. 2 . St. Paul Legislative Code § 409 . 07 (c) provides: '� 1 No person shall consume or display �r allow consumption or display of liquor upon the pre�ises of an on-sale licensee at any time when the sale olf such liquor is not permitted. 3 . The St. Paul City Council and the Admi istrative Law Judge have jurisdiction in this matter pursuant to �inn. Stat. §§ 14 . 50 and 340A. 415 . 4 . Licensee received timely and proper nc�tice of the hearing. The City has compl-ied with all procedur�l and substantive requirements of law and rule. ' 5. Alcoholic beverages were displayed an�} were being consumed on the premises of Licensee on April 20, 1991, 1after proper closing hours. 6 . The Licensee has violated St. Paul L�gislative Code § 409 . 07 (c) . 7 . St. Paul Legislative Code § 409 . 2� (b) sets forth the presumptive penalties for violations of the liquor license code. The presumptive penalty for permitting the di�play or consumption of alcoholic beverages when the sale of uch liquor is not permitted, for the first offense, is 2 consecu�ive days suspension of the license. 8 . St. Paul Legislative Code § 409 . 26 (a�) provides in part: I . . . � . - g�` �� : These penalties are presumed to be appropriate for every case; however, the council may deviate th�erefrom in an individual case where the council finds a d determines that there exists substantial and compe ling reasons making it more appropriate to do so. When deviating from these standards, the council shall pr vide written � reasons that specify why the penalty sel cted is more = � appropriate. �� ., 9 . Adverse action is appropriate in this case but deviation � 4r� from the presumptive penalty is also appropriat�e. � � Based upon the foregoing Conclusions, thelAdministrative Law' ''�'� Judge makes the following: RECOMMENDATION IT IS HEREBY RESPECTFULLY RECOMMENDED tha� the St. Paul City Council take adverse action against Licensee by suspending the license for one day. _ I Dated this 19th day of June, 1991. V"�C._.. � w'� �:: Suza ' Born ::�:; Administrati�ve Law Judge � I ; NOTICE� Pursuant to Minn. Stat. § 14 . 62 , subd. 1, the St. Paul City Council is required to serve its final decision upon each party and the Administrative Law Judge by first class mail. Reported: Taped, not transcribed, Tape No. 10,,222 �;� , .{ .,.,_'4�.A . , � � ` � � . ��_i�� 9 . , MEMORANDUM Licensee admits that alcoholic beveragesl were displayed and consumed on its premises in violation of the o�der but argues that the bartender did not have his permission to� serve liquor after normal closing hours and that this was an isolated incidence occurring on the last evening of the bartender' s employment. Obviously, it is unlikely Eichinger would have�given permission to ; his employee to violate the ordinance so the onsent argument for leniency is not particularly persuasive. Eichinger works 50-60 hours per �week in t e bar but only works the closing shift on Thursdays. The other si� evenings he relies on the bartender to close the bar and turn �n the burglar alarm'� system. The burglar alarm is monitored by a ecurity company and Eichinger would be notified if the alarm were o go off. Eichinger receives a printout approximately every other eek showing the time the alarm system is turned on and off each da . From the printout Eichinger monitors when the bar is opened and closed by the staff. Sears was a temporary employee of fiv� or six months who Eichinger knew would be leaving in the spri}�g to return to his regular job. Eichinger thought Sears was a gbod bartender but on at least two previous occasions Eichinger had determined from the burglar alarm log that Sears had stayed in Ithe bar past normal closing hours. Eichinger believed Sears wa drinking alone or perhaps had a woman with him on these occas�ons. Eichinger had warned Sears on both of these occasions bu;t did not fire him because he knew Sears was quitting soon. � Eichinger argues for less than a two dayl suspension based on his assertions that he did not know about th� party; he bore the cost of the party because Sears gave away the drinks; and because no one in the bar was ticketed. The Assi,stant City Attorney replied that tickets may still be issued. l The City took no position on the civil penalty to be assessed.l Based on Sears ' prior conduct, the inc}dent giving rise to this hearing was not totally unforeseeable land some penalty is appropriate. The ordinance does permit deviation from the presumptive sentence and accordingly, a on� day suspension is recommended. Sh� . - �/-�' ,��,� ""' � ° • . - � �� "� �'` ' �„s,�a�u�«�r.,,, I�; �_- ��>�, � � . RECEIVE p `��E�� 9�;%. ` f' v•ta L No �i } T� . •,.� �'.�r f I ��. � ' � ��- - ��:.:Z� `��.� � N 21 199� �� =�- :� ��T Y ,;�,�,+j��'� i ��ERK r,nu;m STATE O F M I N N ESOTA� - '_ _ OFFICE OF ADMINISTRATIVE HEARIN(�S _- , � �� . ., , � r' '`� .. , � FIFTH FLOOR,FLOUR EXCHANGE BUILDING I 310 FOURTH AVENUE SOUTH MINNEAPOLIS,MINNESOTA 55415 (612)347•7600 I � June 19, 1991 Alb�rt B. Olson .. _ . City Clerk I 386 City Hall j St. Paul, MN 55102 Re: In the Matter of the License of E S W In�. d/b/a Easy Street West OAH File No. 66-2101-5598-6 I Dear Mr. Olson: Enclosed are the Findings of Fact, Conclusion� and Recommendation in the above-referenced matter. Yours truly, i � — Suzanne Born Administrative Law Judge I SB: 11 Enclosure AN EQUAL OPPORTUNITY EMPLOYEF# I � . �l _ l�i; . . f�^� g ,1,�� , � � ��----'� 66-2101-5598-6 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARxNGS FOR THE CITY OF ST. PAUL In the Matter of the FINDINGS OF FACT, License of E S W Inc. , CONCLUSIONS AND d/b/a Easy Street West RECOMMENDATION �� The above-entitled matter came on or hearing before Administrative Law Judge Suzanne Born on June �3, 1991 at 9: 00 a.m. ; in conference room 1504A, City Hall Annex, St. Paul, Minnesota. Thomas J. Weyandt, Assistant City Attorney, l647 City Hall, St. Paul, Minnesota 55102 appeared on behalf of t;he City of St. Paul. David A. Eichinger, President of E S W Inc. , 6,16 West Como Avenue, St. Paul, Minnesota appeared on behalf of Resp�pndent. The parties stipulated to the facts as set forth in Exhl.bits 1-5 and 6a-6f which were offered by the City and received inl,to evidence pursuant to the parties ' stipulation. The record clo�ed on June 13 , 1991 at the conclusion of the hearing. This Report is a Recommendation, not a inal decision. The City Council will make the final decision af�er a review of the record and after providing an opportunity to the Licensee to present oral or written arguments to it. Thel, Council may accept, reject or modify the findings, conclusions and recommendations contained herein. STATEMENT OF ISSUE The issue in this proceeding is whether the Licensee permitted the display and consumption of alcoholic beverages on its premises after 1: 00 a.m. on April 20, 1991 contrary to $t. Paul Legislative Code g 409 . 07 (c) . I Based upon the record herein, the Administrative Law Judge ' makes the following: FINDINGS OF FACT l. The Notice of Hearing in this matter Was duly served upon Licensee E S W Inc. by letter dated May 14 , 19 1. Exhibit 1. The Notice stated the place, date, time of the hear�ing, and the grounds upon which adverse action was being sought as , follows: On April 20, 1991, at about 2 : 00 a.m: , persons were permitted to display and consume alcoholic beverages in the licensed premises in violation of § 409 . 07 (c) of the St. Paul Legislative � �� "G -�., Code. In addition, the bartender urnished alcoholic beverages to patrons of the bar after 2 : 00 a.m. Police officers were admit�.ed to the bar only after the bartender had removed bottles and glasses from the top of �the bar. 2 . The records of the License and Permit T�ivision of the City of St. Paul list the license holder as E S W, �nc. Licensee is a corporation whose sole owner is David A. Ei hinger. Licensee operates a bar located at 616 Como Avenue, �t. Paul, Minnesota 55103 doing business as Easy Street West. LiCensee holds an on- sale liquor and a Sunday liquor license from thle City of St. Paul. :,.,, Exhibit 2 . �� , � �� 3 . At approximately 2: 00 a.m. April 20� 1991, Officer T. - Gillet and Sergeant D. Cavanaugh, members of tl`ie City of St. Paul police force, observed exterior and interior l�ghts on at the bar icnown as Easy Street West. They also observe approximately six vehicles in the parking lot and/or parked at t�e curb immediately adjacent to the bar. 4 . Officer Gillet and Sergeant Cavana�igh approached the building on foot and peered into the windows which provided an unobstructed view of most of the interior. Th�y observed several people in the bar and glasses and bottles �n the bar. They observed a man behind the bar open a bottle resembling a beer bottle and placed it on the bar in front of a p�rson seated at the bar. 5. Officer Gillet and Sergeant Cavanaughlrequested a marked squad to assist them. Officer Drutschmann, a St. Paul police officer, responded to their request. He knockec� on the front door, announced "police" and instructed that the doo� be unlocked. 6. An individual came to the door but did ot unlock it until after at least three requests by Officer D�utschmann. While - waiting for the door to be unlocked, Office� Gillet observed, through the window, a person, later identified as the bartender, Jimmy David Sears, remove bottles and glasses �rom the top of the bar. -. 7 . Upon gaining entry, nine people wer� determined to be present. One patron was observed exiting the men' s room holding a partially filled bottle of beer. Several bee� bottles and drink glasses were on the bar. Exhibits 6b, 6c, 6d, 6e, and 6f. 8 . Sears and others present stated they ere having a party because it was Sears ' last night of employment. Sergeant Cavanaugh concluded that several of the patrons were obvi�ously intoxicated. 9 . Licensee ' s President David A. Eict�inger admits that alcoholic beverages were displayed and consumedlon the premises in violation of the ordinance. , , � . . , �f� *�� 9 These penalties are presumed to be appro�riate for every case; however, the council may deviate therefrom in an individual case where the council find� and determines that there exists substantial and co�p elling reasons making it more appropriate to do so. Whe6� deviating from these standards, the council shall rovide written reasons that specify why the penalty s�lected is more appropriate. 9 . Adverse action is appropriate in th}' s case but deviation from the presumptive penalty is also appropriate. Based upon the foregoing Conclusions, ttAe Administrative Law "�� Judge makes the following: RECOMMENDATION I1 IS IiEREBY RESPECTFULLY RECOMMENDED t at the St. Paul City Council take adverse action against Licens�e by suspending the license for one day. i Dated this 19th day of June, 1991. i ��'�--- Suza Born � Administra�tive Law Judge I NOTICE I Pursuant to Minn. Stat. § 14 . 62 , subd. Il, the St. Paul City Council is required to serve its final decisio� upon each party and the Administrative Law Judge by first class mail. Reported: Taped, not transcribed, Tape No. 1�0, 222 , , � , , I ��'2� . � MEMORANDUM . Licensee admits that alcoholic beverages �ere displayed and consumed on its premises in violation of the orc�er but argues that the bartender did not have his permission to erve. liquor after normal closing hours and that this was an �solated incidence occurring on the last evening of the barter�der' s employment. Obviously, it is unlikely Eichinger would have g�iven permission to his employee to violate the ordinance so the co�sent argument for leniency is not particularly persuasive. Eichinger works 50-60 hours per week in the Ibar but only works the closing shift on Thursdays. The other six �venings he relies on the bartender to close the bar and turn on the burglar alarm system. The burglar alarm is monitored by a se�urity company and Eichinger would be notified if the alarm were to �go off. Eichinger receives a printout approximately every other we�k showing the time the alarm system is turned on and off each day. IFrom the printout Eichinger monitors when the bar is opened and cllosed by the staff. Sears was a temporary employee of five br six months who Eichinger knew would be leaving in the springjto return to his regular job. Eichinger thought Sears was a goo�i bartender but on at least two previous occasions Eichinger had determined from the burglar alarm log that Sears had stayed in th�e bar past normal closing hours. Eichinger believed Sears was Idrinking alone or perhaps had a woman with him on these occasior}s. Eichinger had warned Sears on both of these occasions but Idid not fire him because he knew Sears was quitting soon. Eichinger argues for less than a two day s�ispension based on his assertions that he did not know about the �arty; he bore the cost of the party because Sears gave away the d inks; and because no one in the bar was ticketed. The Assist�nt City Attorney replied that tickets may still be issued. IThe City took no position on the civil penalty to be assessed. I _ Based on Sears ' prior conduct, the incident giving rise to this hearing was not totally unforeseeable an�l some penalty is appropriate. The ordinance does permit de�viation from the presumptive sentence and accordingly, a one �lay suspension is recommended. S�� I . �`/�/��9 . ��rT�� CITY OF SAINT PAUL �� :, + ,;;;�;;��; o OFFI�CE OF THE CITY ATTORNEY • ~ � . l�{• • J�NE A: MC PEAK, CITY ATTORNEY 647 City Hall,Saint Paul,Minnesota 55102 612-298-5121 JAMES SCHEIBEL PAx 612-29s-5619 Mt`YOR RECEIVED i June 24, 1991 JUN 2 6 199� �avid A. Eichinger, President CITY CLERK E S W Inc. , dba Easy Street West I 616 West Como Avenue �`M*� Saint Paul, Minnesota 55103 NOTIC� OF COIINCIL HEARING �''•'� RE: Licenses held by E S W Inc. , dba Easy St�}eet West, 616 West Como Avenue, Saint Paul, Minnesota i55103 Dear Mr. Eichinger: Please take notice that a hearing on the report of the Administrative Law Judge concerning tY�e above-mentioned establishment has been scheduled for 9 : 00 o'clock a.m. , July 18, 1991 in the City Council Chambers, Third Flo�r, Saint Paul City Hall and Ramsey County Courthouse. You have the opportunity to file exceptions tolthe report with the City Clerk at any time during normal business l�ours. You may also present oral or written argument to the Council at the Hearing. No new evidence will be received or testimony ta�en at this hearing. The Council will base its decision on the recor of the proceedings before the Administrative Law Judge and on th� arguments made and exceptions filed, but may depart from the recdmmendations of such Judge as permitted by law in the exercise ojf its judgment and discretion. Sincerely, ' THOMAS J. WEYANDT Assistant City Attorney cc: Robert Kessler License Inspector Lt. Nancy DiPerna Vice Unit Albert Olson City Clerk Ms. Shelly VanKampen Community Organizer District 6 Planning Council _ _ . � � � � �j,��a 9 � ��1�1E�i � �U� �O �99,� 66-2101-5598-6 - �� STATE OF MINNESOTA I OFFICE OF ADMINISTRATIVE HEARI�IGS FOR THE CITY OF ST. PAUL I FINDINGS OF FACT, In the Matter of the CONCLUSIONS AND License of E S W Inc. , RECOMMENDATION d/b/a Easy Street West � The above-entitled matter came on f r hearing before Administrative Law Judge Suzanne Born on June 1I3 , Pa?'a?�9nn�sota. in conference room 15Q4A, Cit�� H«11 Anr,�x, S�t- Thomas J. Weyandt, Assistant City Attorney, 647 City Hall, St. Paul, Minnesota 55102 appeared on behalf of t�e City of St. Paul. David A. Eichinger, President of E S W Inc. , 6 6 West Como Avenue, St. Paul, Minnesota appeared on behalf of Resp ndent. The parties stipulated to the facts as set forth in Exh'bits 1-5 and 6a-6f which were offered b ulat onty The record a lo ed eonJ une 13rs1991 to the parties' stip j at the conclusion of the hearing. This Report is a Recommendation, not a f�inal d eviewnof the City Council will make the final d ortun t afltor the Licensee to record and after providing an opp Y present oral or written arguments to iusionseland nrecommendations reject or modify the findings, conc contained herein. STATEMENT OF ISSUE The issue in this proceeding is whether tl�e Licensee permitted - the display and consumption of alcoholic be��e�SSeSpaul1Legislative after 1: 00 a.m. on April 20, 1991 contrary Code § 409 . 07 (c) . Based upon the rec�-rd h�rein, �he Adinit�:i:strativz Law Judge makes the following: I FINDINGS OF FACT l. The Notice of Hearing in this matter was duly served upon ee E S W Inc. by letter dated May 14 , 1I91. Exhibit 1TOUnds Licens and the g Notice�si h adverse actioa was beTing sought a� fol�lows: upon w On April 20 , 1991, at about 2 : 00 a.fi. , persons were permitted to display and consumle alcoholic beverages iri the licensed premises i�n violation of § 409 . 07 (c) of the St. Paul �egislative , • ' • . ' �1�/�� ::: I Code. In addition, the bartender �urnished alcoholic beverages to patrons of the l�ar after 2 : 00 a.m. Police officers were admitted to the bar only after the bartender had � removed bottles and glasses from the top of the bar. 2 . The records of the License and Permit D�.vision of the City of St. Paul list the license holder as E S W, Ijnc. Licensee is a corporation whose sole owner is David A. Eichinger. Licensee ' operates a bar located at 616 Como Avenue, St� . Paul, Minnesota 55103 doing business as Easy Street West. Lic�nsee holds an on- sale liquor and a Sunday liquor license from th� City of St. Paul. Exhibit 2 . ; , , 3 . At approximately 2: 00 a.m. April 20,I 1991, Officer T. Gillet and Sergeant D. Cavanaugh, members of th�e City of St. Paul police force, observed exterior and interior li�ghts on at the bar known as Easy Street West. They also observedlapproximately six vehicles in the parking lot and/or parked at thle curb immediately adjacent to the bar. I 4 . Officer Gillet and Sergeant Cavanau�h approached the building on foot and peered into the windows which provided an unobstructed view of most of the interior. The� observed several people in the bar and glasses and bottles o#� the bar. They observed a man behind the bar open a bottle Iresembling a beer bottle and placed it on the bar in front of a pe�rson seated at the bar. 5 . Officer Gillet and Sergeant Cavanaugh �equested a marked squad to assist� them. Officer Drutschmann, � St. Paul police officer, responded to their request. He knockedlon the front door, announced "police" and instructed that the door� be unlocked. 6 . An individual came to the door but did ot unlock it until after at least three requests by Officer Dr�tschmann. While waiting for the door to be unlocked, Officerl Gillet observed, through the window, a person, later identifiedlas the bartender, Jimmy David Sears, remove bottles and glasses f�om the top of the bar. 7 . Upon gaining entry, nine people were�.determined to be present. One patron was observed exiting the �en' s room holding a partially filled bottle of beer. Several beerlbottles and drink glasses were on the bar. Exhibits 6b, 6c, 6d, �e, and 6f. 8 . Sears and others present stated they wlre having a party because it was Sears ' last night of employment. ergeant Cavanaugh concluded that several of the patrons were obvi usly intoxicated. 9 . Licensee ' s President David A. Eichiinger admits that alcoholic beverages were displayed and consumed Qn the premises in violation of the ordinance. I : " � � 9j/�� 10 . The bartender Sears did not have Eich"nger' s consent to be on the premises past normal closing hours. Eichinger did not have any prior knowledge that a party was to be eld on Sears ' last night of employment. -- Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1. Minn. Stat. § 340A. 415 (1990) provides in pertinent part: The authority issuing or approving any retail license or permit under this chapter shall eithe suspend for up to 60 days or revoke the license or permi� or impose a civil fine not to exceed $ 2 , 000. 00 for each violation on a finding that the license or per.mit h� der has f.ailed to comply with an applicable statute, �ule, or� ordinance relating to alcoholic beverages. No suspension or revocation takes effect until the }License or permit holder has been afforded_ an opportunity for a hearing under §§ 14 . 57 to 14 . 69 of the adminiistrative procedure I act. ' 2 . St. Paul Legislative Code § 409. 07 (c) �rovides: No person shall consume or display or� allow consumption or display of liquor upon the premilses of an on-sale licensee at any time when the sale of such liquor is not permitted. , 3 . The St. Paul City Council and the Admin strative Law Judge have jurisdiction in this matter pursuant to M�nn. Stat. §§ 14 . 50 and 340A. 415. 4 . Licensee received timely and proper not' ce of the hearing. The City has compl-ied with all procedura and substantive requirements of law and rule. 5. Alcoholic beverages were displayed and �aere being consumed on the premises of Licensee on April 20, 1991, after proper closing hours. 6 . The Licensee has violated St. Paul Le islative Code § 409 . 07 (c) . � 7 . St. Paul Legislative Code § 409 . 26�b) sets forth the presumptive penalties for violations of the 1 quor license code. The presumptive penalty for permitting the dis lay or consumption of alcoholic beverages when the sale of s�ich liquor is not permitted, for the first offense, is 2 consecutive days suspension of the license. 8 . St. Paul Legislative Code § 409 . 26 (a provides in part: � i � � • . _ �'" �� These penalties are presumed to be approp iate for every case; however, the council may deviate herefrom in an individual case where the council finds and determines that there exists substantial and comp lling reasons making it more appropriate to do so. When', deviating from these standards, the council shall p�'ovide written reasons that specify why the penalty selected is more appropriate. 9 . Adverse action is appropriate in this case but deviation from the presumptive penalty is also appropriate. Based upon the foregoing Conclusions, th Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RESPECTFULLY RECOMMENDED th t the St. Paul City Council take adverse action against License by suspending the license for one day. � Dated this 19th day of June, 1991. �s�.. `� ��. Suza Bdrn Administrative Law Judge NOTICE� Pursuant to Minn. Stat. § 14 . 62 , subd. 1, the St. Paul City Council is required to serve its final decision upon each party and the Administrative Law Judge by first class �ail. Reported: Taped, not transcribed, Tape No. 0,222 I , � - ` � � c�/-/�°�9 MEMORANDUM ' Licensee admits that alcoholic beverages were displayed and consumed on its premises in violation of the order but argues that the bartender did not have his permission to serve liquor after normal closing hours and that this was an isolated incidence occurring on the last evening of the bartender's employment. Obviously, it is unlikely Eichinger would have Igiven permission to his employee to violate the ordinance so the c�onsent argument for leniency is not particularly persuasive. Eichinger works 50-60 hours per ;week in t e bar but only works the closing shift on Thursdays. The other six evenings he relies on the bartender to close the bar and turn o� the burglar alarm system. The burglar alarm is monitored by a ecurity company and Eichinger would be notified if the alarm were to go off. E�chinger receives a printout approximately every other w�eek showing the time the alarm system is turned on and off each day�. From the printout Eichinger monitors when the bar is opened and closed by the staff. Sears was a temporary employee of fiv� or six months who Eichinger knew would be leaving in the spring to return to his regular job. Eichinger thought Sears was a g�od bartender but on at least two previous occasions Eichinger had determined from the burglar alarm log that Sears had stayed in the bar past normal closing hours. Eichinger believed Sears wa drinking alone or perhaps had a woman with him on these occas ons. Eichinger had warned Sears on both of these occasions b�t did not fire him because he knew Sears was quitting soon. , Eichinger argues for less than a two day suap�nsihe boredthe his assertions that he did not k ave aw�a t th� drinks�; and because cost of the party because Sears g Y no one in the bar was ticketed. The Ass stant City Attorney re lied that tickets may still be issued.� The City took no P position on the civil penalty to be assessed. Based on Sears' prior conduct, the inc�dent giving ri�e is this hearing was not totally unforeseeable and some pena y appropriate. The ordinance does permit� deviation from the presumptive sentence and accordingly, a o e day suspension is recommended. � Sh �� ... , -, , , �:.� , 9��.�� /� � ��1, v ��m:��, �� f_ ,� �ct�s�A'''<,, , �-� �'; �tp\LLO HO,�•V"� � (�.A �.� �. i! ��N" ••�i . � � ( - � ' ••, '_ - ��:;�� ,,,,,,�,� STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS RECEIVED FIFTH FLOOR,FLOUR EXCHANGE BUILDING JUN � � �JJ� 310 FOURTH AVENUE SOUTH MINNEAPOLIS,MINNESOTA 55415 �'�TY CLERK (612)341•7600 June 26, 1991 Albert B. Olson, City Clerk St. Paul City Council 386 City Hall St. Paul , MN 55102 Re: In the Matter of the License of ESW Inc. dba Easy Street West; OAH Docket No. 66-Z101-5598-6 Dear Mr. Olson: Enclosed herein please find the original report of the Administrative Law Judge in the above-entitled matter. Also enclosed in the offical record including your copy of the hearing tape. The return of this record constitutes the closing of our file in this matter. Sincerely, � � PAIGE L. PURCELL Docket Clerk, OAH Telephone: 612/341-7615 PP Enclosure AN EQUAL OPPORTUNITY EMPLC�YER ' ;:s,,,,�,:r,,,,.>. ��._ �� ,�'- � ��• .sT . ,.�..... .a 3 v•�<,,,,..�:,,�o;?'t�''; 4• � �Ayi.0:4 . t �, .� ��, r G ' _-' _:�� , ��•, -- � `"��'�.i�;�k�?�� RECEIVED ,,,,,;,,�;,�,«RU STAT E O F M I N N ESOTA I JUN 2 7 1991 OFFICE OF ADMINISTRATIVE HEARINC�S CITY CLERK FIFTH FLOOR, FLOUR EXCHANGE BUILDING 310 FOURTH AVENUE SOUTH MINNEAPOLIS,MINNESOTA 55415 (612)341•7600 June 19 , 1991 I Thomas J. Weyandt Assistant City Attorney 647 City Hall St. Paul, MN 55102 _ David A. Eichinger, President I E S W Inc. 616 West Como Avenue St. Paul, MN 55103 � 5 � �,7 Re: In the Matter of the License of E S W Ir�c. d/b/a Easy Street West OAH File No. 66-2101-5598-6 Gentlemen: " I Enclosed herewith and served upon you are t�e Findings of Fact, Conclusions and Recommendation in the above-�'eferenced matter. Yours truly, ��---- Suzanne Born Administrative Law Judge , SB: 11 Enclosure . AN EQUAL OPPORTUNITY EMPLOY�R �'/-/�� AFFIDAVIT OF SERVICE �I STATE OF MINNESOTA} )SS COUNTY OF HENNEPIN) Suzanne Born, being duly sworn, says that on the 19th day of June, 1991, she served the annexed Findings of Fact, Conclusions and Recommendation on City of St. Paul, Petitioner in this action, by mailing to Thomas J. Weyandt, Assistant Cit� Attorney for St. Paul, a copy thereof, enclosed in an envelope, postage prepaid, and by depositing same in the post office at Minn�apolis, Minnesota directed to said Assistant City Attorney at 647 City Hall, St. Paul, MN 55102 , the last known address of sa�id Assistant City I Attorney. � „ > 1 Jµ-�-�---�- Subscribed and sworn to before � me this 19th day of June, 1991. • o ary P 'c ; ,��;:� ,;,> LUCIA A. LINDHOLM '�T��,�x_ NOTAR`!1U�LIC-MINNESOj� � �k=�:�r NENNE�IN GQUNTY � - r�' �_F,�� My commission ex'U�� 3�i-9� � 9/-/�� AFFIDAVIT OF SERVICE STATE OF MINNESOTA) ', }SS I COUNTY OF HENNEPIN} I � . �o:�.�.:: Suzanne Born, being duly sworn, says that on the 19th day of June, 1991, she served the annexed Findings of Fact, Conclusions and Recommendation on David A. Eichinger, Respondent in this action, by mailing to him a copy thereof, enclo�ed in an envelope, postage prepaid, and by depositing same in t e post office at Minneapolis, Minnesota directed to said Defend nt at E S W Inc. , 616 West Como Avenue, St. Paul, MN 55103 , the last known address of said Defendant. �v----� Subscribed and sworn to before me this 19th day of June, 1991. � o ary P i � �`�=s� LUCIA A. LINDHOLM �y=�.,;:s:-,;,. � i NOTARY PUBUC—MINNESO�iJ ,��?t� t 7'� ' t` HENNEPIN COUNTY n ''� My commission expires 3-6-�� i ' �//��9 66-2101-5598-6 STATE OF MINNESOTA � RECEIVED OFFICE OF ADMINISTRATIVE HEARINGS �uN 2 71gg1 FOR THE CITY OF ST. PAUL ' CIT,� CLERK � _ In the Matter of the FINDINGS`��'OF FACT, License of E S W Inc. , , CONCLi�SIONS AND d/b/a Easy Street West RECOMMENDATION The above-entitled matter came on fo hearing before Administrative Law Judge Suzanne Born on June 13, 1991 at 9: 00 a.m. in conference room 1504A, City Hall Annex, St Paul, Minnesota. Thomas J. Weyandt, Assistant City Attorney, 647 City Hall, St. Paul, Minnesota 55102 appeared on behalf of the City of St. Paul. David A. Eichinger, President of E S W Inc. , 61� West Como Avenue, St. Paul, Minnesota appeared on behalf of Respo dent. The parties stipulated to the facts as set forth in Exhi its 1-5 and 6a-6f which were offered by the City and received int evidence pursuant to the parties' stipulation. The record close on June 13 , 1991 at the conclusion of the hearing. This Report is a Recommendation, not a final decision. The City Council will make the final decision aft r a review of the record and after providing an opportunity t the Licensee to present oral or written arguments to it. The ouncil may accept, reject or modify the findings, conclusions a d recommendations contained herein. STATEMENT OF ISSUE The issue in this proceeding is whether the Licensee permitted the display and consumption of alcoholic bevera es on its premises after 1: 00 a.m. on April 20, 1991 contrary to S�. Paul Legislative Code § 409 . 07 (c) . Based upon the record herein, the Admini trative Law Judge makes the following: FINDINGS OF FACT l. The Notice of Hearing in this matter w�s duly served upon Licensee E S W Inc. by letter dated May 14, 1991. Exhibit 1. The Notice stated the place, date, time of the heari g, and the grounds r upon which adverse action was being sought as ollows: On April 20, 1991, at about 2 : 00 a.m. ,, persons were permitted to display and consume alcoholic beverages in the licensed premises in violation of § 409 . 07 (c) of the St. Paul Leqislative I `�/ /-- /�'°%1� Code. In addition, the bartender furnished alcoholic beverages to patrons of the b�ar after 2 : 00 a.m. Police officers were admitted to the bar only after the bartender had Iremoved bottles and glasses from the top of the bar. 2 . The records of the License and Permit Dlvision of �he :City of St. Paul list the license holder as E S W, I c. Lice� ee is a corporation whose sole owner is David A. Eic�inger. ��censee operates a bar located at 616 Como Avenue, St�. Paul, l�finnesota 55103 doing business as Easy Street West. Lic�nsee holds an on- sale liquor and a Sunday liquor license from thelCity of St. Paul. Exhibit 2 . 3 . At approximately 2 : 00 a.m. April 20, I 1991, Officer T. Gillet and Sergeant D. Cavanaugh, members of th� City of St. Paul police force, observed exterior and interior li hts on at the bar known as Easy Street West. They also observed approximately six vehicles in the parking lot and/or parked at th� curb immediately adjacent to the bar. 4 . Officer Gillet and Sergeant Cavanau�h approached the building on foot and peered into the windows which provided an unobstructed view of most of the interior. The observed several people in the bar and glasses and bottles o� the bar. They observed a man behind the bar open a bottle resembling a beer bottle and placed it on the bar in front of a pe�rson seated at the bar. , 5. Officer Gillet and Sergeant Cavanaugh equested a marked squad to assist them. Officer Drutschmann, � St. Paul police officer, responded to their request. He knocked on the front door, announced "police" and instructed that the doorlbe unlocked. 6. An individual came to the door but did r�ot unlock it until after at least three requests by Officer Drutschmann. While waiting for the door to be unlocked, Officerl Gillet observed, through the window, a person, later identified as the bartender, Jimmy David Sears, remove bottles and glasses f�om the top of the bar. 7 . Upon gaining entry, nine people were determined to be present. One patron was observed exiting the �inen' s room holding a partially filled bottle of beer. Several beer bottles and drink glasses were on the bar. Exhibits 6b, 6c, 6d, I6e, and 6f. 8 . Sears and others present stated they wjere having a party because it was Sears ' last night of employment. Sergeant Cavanaugh concluded that several of the patrons were obvijously intoxicated. 9 . Licensee's President David A. Eichl�nger admits that alcoholic beverages were displayed and consumed on the premises in violation of the ordinance. I i I � I • �f��y,a 9 10. The bartender Sears did not have Eich nger's consent to be on the premises past normal closing hours. Eichinger did not have any prior knowledge that a party was to be eld on Sears ' last night of employment. ', Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following: �'�s�n :� �. , :� "'`� CONCLUSIONS ��'�� :;;;� "��» l. Minn. Stat. § 340A. 415 (1990) provides in pertinent part: The authority issuing or approving any retail license or permit under this chapter shall either suspend for up to 60 days or revoke the license or permit� or impose a civil fine not to exceed $ 2, 000. 00 for e ch violation on a finding that the license or permit ho der has failed to comply with an applicable statute, ule, or ordinance relating to alcoholic beverages. No suspension or revocation takes effect until the icense or permit holder has been afforded an opportunity for a hearing under §§ 14 . 57 to 14 . 69 of the admini trative procedure act. 2 . St. Paul Legislative Code § 409. 07 (c) �rovides: No person shall consume or display or allow consumption or display of liquor upon the premises of an on-sale licensee at any time when the sale of such liquor is not permitted. 3 . The St. Paul City Council and the Administrative Law Judge have jurisdiction in this matter pursuant to Mi�n. Stat. §§ 14 . 50 and 340A.415. ' 4 . Licensee received timely and proper not ce of the hearing. The City has complied with all procedural and substantive requirements of law and rule. 5. Alcoholic beverages were displayed and ere being consumed on the premises of Licensee on April 20, 1991, a ter proper closing hours. 6. The Licensee has violated St. Paul Le islative Code § 409. 07 (c) . 7 . St. Paul Legislative Code § 409. 26 ( ) sets forth the presumptive penalties for violations of the lik�uor license code. The presumptive penalty for permitting the dis�lay or consumption of alcoholic beverages when the sale of sulch liquor is not permitted, for the first offense, is 2 consecutive days suspension of the license. 8 . St. Paul Legislative Code § 409 . 26 (a)' provides in part: � � �i-� �� These penalties are presumed to be appropriate for every case; however, the council may deviate �herefrom in an individual case where the council finds and determines that there exists substantial and com�elling reasons making it more appropriate to do so. Whe deviating from these standards, the council shall p�ovide writ reasons that specify why the penalty selected is.;,��, .;,�; ' appropriate. ' y . � � � '�.: 9. Adverse action is appropriate in this case but d'�� 1'ation from the presumptive penalty is also appropri�te. Based upon the foregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS HEREBY RESPECTFULLY RECOMMENDED th�t the St. Paul City Council take adverse action against License� by suspending the license for one day. Dated this 19th day of June, 1991. �� Suza Bo n Administra�ive Law Judge NOTICE Pursuant to Minn. Stat. § 14 . 62 , subd. �, the St. Paul City Council is required to serve its final decisio upon each party and the Administrative Law Judge by first class m il. !0 222 Reported: Taped, not transcribed, Tape No. 1 , � `I / , . r - s�� MEMORANDUM Licensee admits that alcoholic beverages were displayed and consumed on its premises in violation of the o�der but argues that the bartender did not have his permission to�' serve liquor after normal closing hours and that this was an isolated _ ' - `. �i�ce occurring on the last evening of the bartender' s e��: `�.. Obviously, it is unlikely Eichinger would have given pe �to his employee to violate the ordinance so the consent ar '`% >:or leniency is not particularly persuasive. .�. �,,,, �_ ., Eichinger works 50-60 hours per week in the bar but only works the closing shift on Thursdays. The other si� evenings he relies on the bartender to close the bar and turn o� the burglar alarm system. The burglar alarm is monitored by a $ecurity company and Eichinger would be notified if the alarm were o go off. Eichinger receives a printout approximately every other eek showing the time the alarm system is turned on and off each day. From the printout Eichinger monitors when the bar is opened and losed by the staff. Sears was a temporary employee of fiv or six months who Eichinger knew would be leaving in the spri g to return to his regular job. Eichinger thought Sears was a g od bartender but on at least two previous occasions Eichinger had determined from the burglar alarm log that Sears had stayed in �the bar past normal closing hours. Eichinger believed Sears was drinking alone or perhaps had a woman with him on these occasi�ons. Eichinger had warned Sears on both of these occasions but did not fire him because he knew Sears was quitting soon. Eichinger argues for less than a two day suspension based on his assertions that he did not know about the party; he bore the cost of the party because Sears gave away the� drinks; and because no one in the bar was ticketed. The Ass' stant City Attorney replied that tickets may still be issued. The City took no position on the civil penalty to be assessed. Based on Sears ' prior conduct, the inc dent giving rise to this hearing was not totally unforeseeable and some penalty is appropriate. The ordinance does permit deviation from the presumptive sentence and accordingly, a on day suspension is recommended. Sh ,, ; � , - c-� � � � � � �. ` �: A �, � ' o. C/] ,'�., � y O � � � r c+ � p � —r' . � A � P a p ,.. �.� . �: A c� �, v � C � � p .,':��: � N � . . �,. '�,' ;Sy ; '•� p n � � �i; o . �-G 1 �' � ' � c i+ �, 4 �,. -� ` o �� c=�'..' .�`:�`: � en- y Ce `..� t�l � � G . ��. , � �L �Q _ �, � 3 � � � �� ° `:vr -.,,`• �.ca: � r•.' ' � �'4�o � o ;�,� �.° ,':9�,:; 0 •.'�� e.�';. e•t � 'c�Q � � 4� .��°��:`� � . ':��'�• ''. � •�� '' '.1 ''�`'e C�:=r.r :t � o ;� �'. ��, r � � ��•. ., ' � V`; Q '�;�V: ;� '�'`. �. r� � �S .o � i� �nce � �� U' • .'!,'',` p� P,.` � '' :�; � . � ', ' � ;:��:.r �� i `�� N'ti^�'wi � r.• } �+� g/�j v � • (/�\,�ry�. . C,.�q q� ' ¢ �'.,� A„ R � \ �° � �.. � t� '• , I � �= U . O y�� .. ••�J�' ��y. ''1 - �' T �� b c!i 6� t�li!rt� `t °! .�� v , ' . Ct ��' �% t� �tt � � t`nPGyO ��y, • �tr1d t t Ct y�2 0 o ro. rd � �L t �,'+�� y m � � �� N � � ��ti c+� N 1 ;� v i � ��, _ �+t d � � ��'�. �,..r�'�'��:* 's Q .. � ��t � �y „e � � O� •�;t. �� . •�t , l`", �l W � ry�� `• � � � ✓ .� � . . � �� . � �� . ' o, �� l , � v, i �� vo. �� i •� �� * co N ° ' �t i - ��-� � �'a � •t o -. � 1 a, (D �.p 't ��`i y � � �� Q� . '� i i �' C� ¢ t ¢ � �o i t y C.' � �'� • ;:� �' . � �i--/ya-� °'TT °� CITY OF SAINT PAUL �,� . �� +� OFFICE OF THE CITY ATTORNEY � ��u�� ; + �«� �� A, • �••• J A. MC PEAK, CITY ATTORNEY 647 City Hall,Saint Paul,Minnesota 55102 612-298-5121 JAMES SCHEIBEL , _ FAX 612-298-5619 MAYOR RECEIVE ' ��'��'`�y�� I� r �_��. ��v ; May 14 , 19 91 �;�� t�i� , JUN2719 1 4� David A. Eichinger, President E s W Inc. , dba Easy street west CITY CLE ,K 616 West Como Avenue ' , Saint Paul, Minnesota 55103 ', NOTICE OF AEARING RE: City of St. Paul vs. E S W Inc. , dba Easy Street West, 6;16 . West Como Avenue, Saint Paul, Minnesota 55103 ,: � Dear Mr. Eichinger: � � This is to notify you that a hearing will be 13e1d concerning all' ,^y �, the licenses held at the premises stated abov�e at the following' time, date and place: Date: June 13, 1991 I Time: 9 a.m. Place: Room 1504 A City Hall Annex 25 West Fourth Street St. Paul, MN 55102 The judge will be an Administrative Law Judg from the State of Minnesota Office of Administrative Hearings: , Name: Suzanne Born � 2116 Second Avenue South Minneapolis, MN 55404 Telephone: 871-4358 The Council of the City of Saint Paul has the uthority to provide for hearings concerning licensed premises, an for adverse action against such licenses, under Chapter 310, inclu ing sections 310. 05 and 310. 06, of the Saint Paul Legislative Co e. In the case of licenses for intoxicating and non-intoxicating liquor, authority is also conveyed by section 340A.415 of the innesota Statutes. Adverse action may iriclude revocation, suspension, fines and other penalties or conditions. I i � . i �/-'/�� May 14 , 1991 I David A. Eichinger, President Page two Evidence will be presented to the judge which �nay lead to' adverse action against all the licenses you hold at th� above pre�ise's as follows: ' `°�� °-< < ?��a,�v 7 n at about 2:00 a.m. ,! persons %1eFe '' On April 20, 1991, .,,, permitted to display and consume alcoholi� beveraqes`:`'`in the licensed premises in violation of sec�ion 409.07 (c) of the Saint Paul Legislative �Code. In addition, the bartender furnished alcoholic beveraqes to �patrons of the bar after 2:00 a.m. Police officers were aldmitted to the bar only after the bartender had remove�d bottles and " k��,t'r�k � ` ' glasses from the top of the bar.�� ' �' �'��'''� � �� n , . ..:R:F::,:,: :.>�. You have the right to be represented by an Ittorney before and; s �, ,� during the hearing if you so choose, or you can �epresent yourself'�`., Y ".��'��' Y o u m a y a l s o h ave a person of your- choice represent you, to the� ��'�`� �_ extent not prohibited as unauthorized practicejof law. :4� � The hearing will be conducted accordance with the requirements of �r'�" ��:� sections 14. 57 to 14 . 62 of the Minnesota Statu�es, and such parts ��w�� of the procedures under section 310. 05 0� the Saint Paul "'�;''��. Legislative Code as may be applicable. At the hearing, the Administrative Law Judge willl have all parties identify themselves for the record. Then the Ci�ty will present its witnesses and evidence, each of whom the licen�ee or attorney may cross-examine. The licensee may then offe� in rebuttal any witnesses or evidence it may wish to present` each of whom the city's attorney may cross-examine. The Admin�.strative Law Judge may in addition hear relevant and material tes�imony from persons not presented as witnesses by either party wholhave a substantial interest in the outcome of the proceeding; for example, the owners or occupants of property located in close proxi�ity to the licensed premises may have substantial interest in tlhe outcome of the proceeding. Concluding arguments may be ma�1e by the parties. Following the hearing, the Judge will prepar�i 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 docu�ents, records and witnesses you will or may need to support your position. Subpoenas may be available to compel the attendance o� witnesses or the production of documents in conformity with Mi�hnesota Rules, part 1400.7000. i . , �� . 9/ May 14, 1991 David A. Eichinger, President Page three ' If you think that this matter can be resolved o� settled� without a formal hearing, please contact or have your a torney c,ox�tact: t�e undersigned. If a stipulation or agreement c n be reach�d �a�s�to the facts, that stipulation will be presented to� the Administ�at�:�'e Law Judge for incorporation into his or her jrecommendatibri'�'for : �l Council action. , If you fail to appear at the hearing, the alle ations against you which have been stated earlier in this notice m�y be taken as true ; , :; an d y o u r a b i l i t y t o c h a l l e n g e t h e m f o r f e i t e d. I If non-public data ,�wrF��`� {s; is received into evidence at the hearing, it may become publ�,c,'� �N��;��{ ; unless objection is made and relief request�d under Minnesota;��,��,�L��; Statutes, section 14 . 60, subdivision 2 . ' ��'- :� ��'� � ' ��; ��,� , Very Truly Yours, I � -.�:-4�f PHI LI P B. BYRNE ;°:r. Assistant City Attorney .,. �",��. cc: Robert Kessler I License Inspector Albert B. Olson CitY Clerk Paige Purcell Office of Administrative Hearings I Lt. Nancy DiPerna Vice Unit Ms. Shelly VanKampen Community Organizer ' District 6 Planning Council I I Page 1 Of 2 ', �� `� � , � E S W, INC. � � �16 Como Ave-55103 dba Easy Street W st ID# 5934956 ity o t au vs nc, a asy -Street West Bar Hearing Date: 6/13/91— On Sale Liquor S00792 1-31-87 City's Exhibit �� Sunday Liquor S00792 1-31-87 6�12/91 � . On Sale Liquor-C � 16359; �, 1-31-88 . `� Swiday Liquor 16359 � _ 1-31-88 I hereby certify that this 'is a � Sale Li�r-C 16359 arI-31-89 true and exact copy of the� records S��y ��r 16359 �; �F,�� ' 3l 89 On Sale L�quor (C) 16359 �r F�r� ¢ -31-g3 . of the License & Permit Division 16359 �� t' ;'r1��'`31-90 Sunday Liquor ; k of the City of Saint Paul for 16359 `r: �, w`"��``' 1-31-91 ESW Inc. DBA Easy Street West On Sale Liquor(C) - at 616 Como Avenue, _ Sunday Liquor 16359 1-31-91 On Sale Liquor 16359 �j28 9% Sunday Liquor 16359 ' 2�28 9% , " *expiratioz d te change per renewal not�ce; = ON SALE �IQUOR CARD , '":a-'�'��.; "; ._ ____ ____- -- -- - - — � �� , ; . :.. ; ; . .�a J�Oda:l.eii - : ;��• _ �...... :.,: .. ::. -. � � �� s o- . � � .� �� .�� . .--. �: . . � . 0 f'.ce Ma�ager _. .�.. _ . . ,�� t 4434 Y � t . .� � . � - .. . .. ' � . :� �;t n.7,E .... . �-.. � ; .. . .. . �.. � �.r;:. 'i .. ..._..._..___ '_._.____ "___ _ . yt,., � . . .. . . • ... �' . �' � _.�� - E. S. W., Inc. ON �.: ': � �• �� . 2 . 2 Z �S �:_ Pres. David A. Eichinger k Date ' �: - Stoc� David A. Eichinger ,�,:, '::�. �, . . y . _th�•(_p�s y'L`P _ - OFFICER ICARD . �,, V _ . � � C� � ja �� : � , _ . �"�� CHRI�TIN�A.ROZEK � � , � a� � , - - ---_ — `� � NOTARY PUBLIC-MINNESOTA --- - - --— - �., RAMSEV'CQUNTY ' My Commission Expires Aug. 15, 1994• � Y _ ' � -..: , :.. .... . _.. � - � 616 Como Avenue-55�.03 ' • ' ID#5934956 � . E S W, Inc. dba Easy, treet West � Off Sale Malt S00792 1-31- �� Off Sale Malt 16359 1-31- Res aurant 3 16359 1-31- � �� " " taurant B 16359 1-31- Of Sale Malt 16359 1-31- �� " " Res aurant (B) 16359 1-31 �� " Restaurant(B) 16359 1- " " " Re taurant 16359 2-2� *e�cpiration da e changed per renewal notice �� " " 1-C�.garette 91961 3-3] -SUPPOR�TING LIQUOR GARD � � � �. � ' r , 1 � � '., , 4 � 3 .. � , ��c i,��u tt�� . i.� � t��,� rt}°' �,�'. r+�" '� Las. _ . � k�;�";N.r�r�. �� .. . . � � �*��'.r �b, . � s�`A. � ` t� �6p/ . y. } � j� . . � �d�..53t� Z`�� . 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R1 5C � N .p ""� _ . . � . . s. - �" rl r1 -� •r Q 'rl W � N td O '. � Ltj ,� W �l ^� � C�c�C J X '� � N '� •-' ` : ., o ^ a rn ._. ... . ,.._... .. c�'a ., a'�o a-'o "a'°o o� w �o � � �a . +� •-� �r •.-�� `a °o cn a '� � cn a � �a � .°��a�� •a-c°v' +., �n r-1 \D �.� •r-1'L7G� J � O O O � �O �O � �D q�N� O � � p �t ,� N N �O C7 �U� 7 Ol O� � � � o � a� .�1 o Gao ao 00 � a °,' .b rn � , �n Ty o0 C+. O� R.�� .--�v11��00 � J M "'� � � � ,-� � c� (.,) cv U �n r+ 4 ' O ..� N � i o °„_,° � � O � U � U N 0.�\ �U V�T%-i ^7 �_ �. . M C� � i �-. , —Street W st Bar Hearing Date: 6/13/91'- City's Exhibit 4� _� ° LICENSES ��"'/ ��y §�409.07 't y � �� r �,5' ��i,s t, R - �� No. 17177, 10-23-84; Ord. No. 17229, § 1,4-18-85; ses have b en iss'`" `� �� .t � ' be Ord. No. 17247 § 1, 6-6-85; Ord. No. 17289 § 1, issued for he sa� k.. �t ors 9-10-85; Ord. No. 17318, § 1, 12-24-85; Ord� No. which are otels or�res�, � ,� °'ich 17328, § 2, 1-23-86; Ord. No. 17551, § 4, 4-19-88; have facilities for serv� � .�Y Ord. No. 17562, § 1, 5-17-88; Ord. No. 17563, § 1, (50) guests at one time�,.,��na �oxi- J-=� 5-17-88; Ord. No. 17631, § 1, 2-7-89; Ord. No. cating liq rs between th�..��, 0:00 17657 § 1 6-8-89• Ord. No. 17676 § 5, 8-24-89• a.m. on Su days and 100 a m; ,, " da > > > , , � s Ord. No. 17704, § 2, 1-16-90) in conjunction with the serving o; � `�� G�oas reference—Licensing requirements for establishments , rio I1QuOT S alI be served on Sunda � r� •° �`��? selling nonintoxicating malt liquors, §4io.os. than to pe sons who are seated�8t �� v''�` ;R ¢;�sf�� F•., � provided, hat the licensed estabhshm��t�� ,;F Sec. 409.065. Insurance requirements. is in conformance with the Minnesdta G�� ,;„°�: "_`; � �� `�'�:��;�,6 i Indoor Ain Act. � � �z� � .F No license under this chapter may be issued, :r.,�x maintained or renewed unless the licensee or ap- (2) It.is unlav�rful for any such estabh��ime�. �� plicant therefor complies with the insurance re- directly or indirectly,to sell or serve�',�'� quirements imposed by Minnesota Statutes, Sec- icating liquors as provided in subpara" ,�"` tion 340A.409;provided,that the licensees referred � (1) above ithout having first obtain�. to in Minnesota Statutes, Section 340A.409, sub- ��l lic�nse therefor.Such special lice division 4, shall not be exempt from the coverage Inay be is�ued by the council for a period o;_: of this section in the Legislative Code. It is the one year and for which the fee shall be two,��: intent of this section to require liability insurance hundred ollars ($200.00). Application for �`�,...� coverage for all licenses issued under this chapter said spec�al license shall be made to the ';"'fY•`` , - without exception. Such insurance coverage shall council in the same manner as application '� '' :�'`` �� comply with the requirements of Minnesota Stat- for other licenses to sell intoxicating liquor `''� " �' utes, Section 340A.409 and Chapters 7 and 8 of are made' this Legislative Code. (Ord. No. 17796, § 1, 12-13-90) (c) No consu ption or display when prohibited. No person shall consume or display or allow con- sumption or display of liquor upon the premises Sec. 409.07. Hours of sale; Sunday sales,etc. of an on-sale li nsee at any time when the sale of (a) Hours of sale. No sale of intoxicating liquor such liquor is�ot permitted. _ shall be made after 1:00 a.m. on Sunday nor until �d) Private Christmas parties. Notwithstanding 8:00 a.m. on Monday. No on-sale shall be made an other ro ision of the Legislative Code, the between the hours of 1:00 a.m. and 8:00 a.m. on license holder�of premises having an on-sale li- any weekday. No off-sale shall be made before cense may onc� a year during the Christmas sea- 8:00 a.m. or after 8:00 p.m. of any day except �n have a rivate arty at no charge to the guests off-sale shall be permitted on Friday and Satur- p P day until 10:00 p.m. No off-sale shall be made on after the la 1 closing hours; provided, that a , written reque t for said party is submitted to the New Year s Day, January 1; Independence Day, �icense ins ec or thirty (30)days prior to the pro- July 4; Thanksgiving Day; or Christmas Day, De- p cember 25; but on the evenings preceding such posed date of the party; and provided further, days,if the sale of liquors is not otherwise prohib- that no sales as defined by law of intoxicating ited on such evenings, off-sale may be made until liquors or no�intoxicating malt liquor shall be 10:00 p.m., except that no off-sale shall be made made at or du�ing said party.The inspector shall on December 24 after 5:00 p.m. notify the chief of police of the date of each pro- posed party. (b) Sunday sales: (Code 1956,§�08.20;Ord.No.16815,7-23-81;Ord. (1) Notwithstanding the provisions of paragraph No. 17037, 6- 0-83; Ord.No. 17162, 9-27-84; Ord. (b), establishments to which on-sale licen- No. 17693, § 2, 11-7-89) � Supp.No.14 2178.1 , , —Street West Bar Hearing Date: 6/13/91— City's Exhibit �� §409.25 LEGISLATNE CODE ��/`� �� ' � _ . } , . ' - �•'�.Y..� ;o ,_,. r.�;d:, . (1) The name, address and purpose of the or- director may require tl�e insp�c ganization, together with the names and .license before receiving any r� �,�.: , addresses of its officers. the application therefoT�if neees „r ;;. license on a timely basi,�. ��s � �� (2) The purpose for which the temporary license (Ord.No. 17459, § 1,5-�8-87;Ord NQ T'� is sought, together with the place, dates �A° �. 6-7-88) � °,� and hours during which wine or intoxicat- � �;.. ,r,;,�,,. . ing liquor will be sold. Sec. 409.26. Intoxica�g liquor;nonintoxi "�`" q ing malt quor;presumptive pe � `�` '�' (3) Consent of the owner or manager of the � }� � f'�� premises, or person or group with lawful alt�es• ; � �, ,.�� ', ; �; responsibility for the premises. (a) Purpose. The pW�pose of this section is to�y�°� '. (4) Evidence that the applicant has obtained establish a standard y which the city council n�: �w;`�`'#,3, ', r!R t ��c.�3� ; and has in force a bond in accordance with determines the length f license suspensions and �,��s y Y Section 409.06(j),and liability insurance in the propriety of revoca ions,and shall apply to all �'A��,� -�, �y accordance with Minnesota Statutes 1986, on-sale and off-sale l�censed premises for both' yfi�� ,$.,; Section 340A.409. intoxicating liquor un er this chapter and nonin ��:`� toxicating liquor undea� Chapter 410. These pen �;�� (d) Application of other prouisions of this chap- alties are presumed t be appropriate for every �'� ter. No other rovisions of this chapter shall apply ��e; however the cou�cil may deviate therefrom � „f�� P to licenses granted under this section,except Sec- in an individual case i here the council finds and §� yt tions 409.06, 409.07, 409.08 (except clauses (11) determines that there exist substantial and com- �,. ., Kd_. and(12)), and Sections 409.09 through 409.14. pelling reasons making it more appropriate to do ; x„� so.When deviating fro�these standards the coun- ' ` ' (e) Class II license. Notwithstanding any other cil shall provide writt n reasons that specify why � � rovision of law to the contrary, the temporary °z«� p the penalty selected was more appropriate. �,.,� wine and liquor licenses provided in this section I shall be administered as a Class II license, and (b) Presumptive penlalties for violations. Adverse subject to the provisions of these chapters govern- penalties for convict}ons or violations shall be ing Class II licenses.The inspector shall make all presumed as follows (unless specified, numbers referrals as provided by Section 310.03, but the below indicate consecutive days' suspension): Appel�arance Type of Violation � 1st 2nd 3rd � 4th (1) Commission of a felony related to the li- Revocation NA NA NA censed activity. (2) Sale of alcoholic beverages while license Revocation NA NA NA is under suspension. (3) Sale of alcoholic beverages to under-age 3 6 18 Revocation person. (4) Sale of alcoholic beverage to intoxicated 3 6 18 Revocation person. (5) After hours sale of alcoholic beverages. 3 6 18 Revocation (6) After hours display or consumption of al- 2 4 12 Revocation coholic beverage. Supp.No.9 � � 2196 I � . ' lr ~f��9 .:;�•-� LICENSES �40926 ,. � � s}�� ' Ap��+,a, � '�., " s��, Type of Violation Ist 2�d w ` •'�4th , �'�� : �'ma � k^ (7) Refusal to allow city inspectors or police 5 15 Rev �A �� ` �" admission to inspect premises. ,�� .. � �,k,y� (8) Illegal gambling on premises. 3 �6 �$:�;- ,ation �..4 ,,, (9) Fail to take reasonable steps to stop per- 2 j4 12 , :�� at�,on ] `h son from leaving premises with alcoholic � .�.,� � �'��; � � a � i �f � 4 beverage. , � _; �-� ti� { (10) Failure to make application for license re- 3 6 18 ,Rev�'��on �' �f r�f:._t�i� r . newal prior to license expiration date. : ,��`; (11) Sale of intoxicating liquor where only li- 3 I6 18 - Revo�a��f�nyy �'I= cense is for nonintoxicating liquor. ' ._ _ _. �'��-`' ,'�`� � ��j�� ` , �;� '�'1`�d,y.,� Y�-A (12) Failure to comply with statutory, and or- 10 Rev¢cation NA N s �' dinance requirements for liability insur- - � ``# ance. �` For those violations which occur in on-sale in- cedures act up o and including the formal notic toxicating liquor establishments, listed above in of hearing.Th�council in that case shall consider��; numbers (4), (5), (6), (8), (9) and (11), the council the presumpti�e penalty for each such violation `;` � y . may in its discretion impose a fine in lieu of a under the "lst'Appearance" column in paragraph `;�� ' { '� sus ension on the first appearance,in accordance (b) above. The cecurrence of multiple violations ;:��.' �.,''��r „ p ;,` " with the following schedule whose amounts are shall be grou�ds for departure from such penal- � �._�_�- presumptively appropriate: ties in the couiicil's discretion. , Seating capacity 0-99 . .. .. .... .. . $ 500.00 Violations o curring after the date of the notice Seating capacity 100-149 . ... . . . . . 1,000.00 of hearing tha�are brought to the attention of the Seating capacity 150-199 . ... . .. . . 1,500.00 cit attorne prior to the hearing date before an Seatin ca acit over 200 . ... . .. . . 2,000.00 a��contes law judge(or before the council in ;: g P Y For those violations which occur in off-sale in- an d facts hearing) may be added to the notice(s)by stipulation if the licensee admits toxicating liquor establishments listed above in to the facts, nd shall in that case be treated as numbers (4), (5), (6), (8), (9) and (11), the council though part o�the"1st Appearance."In all other may in its discretion impose a fine in lieu of a cases, violations occurring after the date of the suspension on the first appearance,in accordance formal notice of hearing shall be the subject of a with the following schedule, whose amounts ax'e se arate roCeeding and dealt with as a "2nd presumptively appropriate, based on the square A p earance"before the council. footage of the retail area of the establishment: PP 2,000 square feet or less... . . . . . . $ 500.00 The same �rocedures shall apply to a second, 2,001— 5,000 square feet. . . . . .. . 1,000.00 third or fourth appearance before the council. 5,001-10,000 square feet. . . .. ... 1,500.00 (d) Subseqr,�ent appearances. LTPon a second,third 10,001 square feet or more. . . . . . . 2,000.00 or fourth appearance before the council by a par- (c) Multiple violations. At a licensee's first ap- ticular licen e,the council shall impose the pre- sumptive pe�ialty for the violation or violations pearance before the city council,the council shall �ving rise to the subsequent appearance without consider and act upon all the violations that have regard to t e particular violation or violations been alleged and/or incorporated in the notices that were the�subject of the first or prior appearance. sent to the licensee under the administrative pro- �� ' _��,', Supp.No.13 2196.1 i .. .. �.��.'��, /�i/�� LICENSES , �§ .41�Q`03 -a°"* ' ,� tan • ist .'k� tn . . . y,��*., r L �.< '� '` y' e �_ � ,�-� x ' ;.✓ p� T �. �v�t.. . �" 'r�—��_. 1 if- � 'h?�. include, but is not limited to, those listed (e) No off-sale �icense shall b in subsection(1) and the following: place where noninitoxicating malt bevg o' be sold for consurr�ption on the prem�is';' rt` a. Management policies that are imple- a �. 'v� mented at the time of service and that (fj "Nonintoxiaating malt liquor" i r f.;��' ensure the examination of proof of iden- mented malt liqwor, potable as a bev�rA.; tification (as established by state law) taining not less than one-half of one perc�n, , '�j: , ; for all persons seeking service of alco- 1%) alcohol by valume nor more than tH'r�`e . ��'�� holic beverages who may reasonably two-tenths(3.2)p�rcent alcohol by weight �""� " ' be suspected to be minors; (Code 1956, §§ 310.01, 310.17, 31020; Ord ' :;, i ; b. Comprehensive training of employees 17676, § 8,8-24-8�) �t= �_ who are responsible for such examina- `�� tion regarding the detection of false or Sec. 410.02. Fe�s. �� ,�'' altered identification. �� T `�� Befare the filir�g of an application for either o�,��, �� (Ord. No. 17556, § 1, 4-28-86; Ord. No. 17657, § the licenses hereinbefore provided for, the appIi*',. 14, 6-8-89; Ord. No. 17675, § 1, 8-22-89; Ord. No. cant shall deposit with the license inspector t��'` - 17694, § 2, 11-7-89; Ord. No. 17756, § 1, 8-7-90) sum of two hundxed fifty dollars ($250.00) if tl�'� application is for an on-sale license, and the sum,-_; Chapter 410. Nonintoxicating Malt Liquor* of fifty dollars($50.00)if the application is for an ;�- off-sale license, and the inspector shall thereupon �`-�.,R Sec. 410.01. License required; definitions; deliver to such applicant duplicate receipts there exceptions. for, containing a statement of the purpose for :' ��.� which such depaisit was made, and one of said � ,� �,� (a) No person shall sell nonintoxicating malt receipts shall be attached to and filed with said �`"`" �.3� � � liquors at retail in Saint Paul without a license. a lication. ' ,��L �� Pp =�-=�'` (b) On-sale licenses shall permit the licensee (Code 1956, § 31p.03; Ord. No. 16843, 10-20-81) for the sale of said nonintoxicating malt liquors ' to sell such for consumption on the premises. On- Sec. 410.03. Li�ensing requirements. sale licenses shall be granted only to restaurants, (a) Applicatio�. Any person desiring either of : hotels,bona fide clubs, establishments for the ex- the licenses as ereinbefore described shall first clusive sale of nonintoxicating malt beverages and make an applica ion therefor to the council of the establishments licensed for the exclusive sale of City of Saint Pa 1 by filing with the inspector of intoxicating liquors. The term "bona fide clubs" ' said city for pre5entation by him to the council of shall include private clubs formerly licensed under an application im writing therefor,which said ap- Chapter 404 of this Code so long as they meet the plication shall s�t forth with reasonable accuracy � requirements of Minnesota Statutes, Section the name and p�ace of residence of the applicant; 340A.101, subsection 7. the exact locatiqn of the place at which the appli- (c) Off-sale licenses shall permit the licensee of cant proposes tc� carry on the business of selling such nonintoxicating malt liquors to sell same in nonintoxicating malt liquors; and whether or not original packages for consumption off the prem- he has at any ime previous to the date thereof ises only. beer, engaged i said business or in the business of selling foodst ffs in the City of Saint Paul, and (d) Nothing herein contained shall be construed �so, when and where. Said application shall be to prohibit the sale and delivery in original pack- signed by the a plicant in person or by an off'icer ages directly to the consumer by the manufac- of the club seel�ng said license or by an off'icer of turer or distributor of nonintoxicating malt liquors. the corporationl seeking said license, and when •Cross referencea—Liquor and beer regulations general- received by thel inspector shall be by him placed ly,Title XXN;intoxicating liquor,Ch. 409;use of beer and on file, and the'name of the applicant shall be by - intoxicating liquor prohibited in motion picture drive-in thea- I11m I'eglStel'0d�n a book of registration to be kept - tres,§416.06(b)- ' �� --`; gupp.No.13 , 2196.3 . 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W S � r 1a,,��. . s f rf�#�,�.. , v� � �,.;. :�� §;, . . � � o � _ �- s � � � 9�— � ��5' �,t:o, C� � �- R�` �. , CITY OF.,SAINT PAUL � ,r. , o � . � ��u�� ; �>r-., � , ,_ , OFFICIE OF �-A.TTORNEY � ��utu � . . _ `i . ,�(�. � .� , • n0 ?J '� y3,:.,-. , �y 4� !�/• t {:C{'�' �,�'�.. �� 1�i I 5 �r-1 �: �3 JA1�E A�M� TTORNEY �;� � � 'nnesota 55102 t�'=.�. , i J i�f-,I�'-s''�. I � " `� "`�`: 612-298-5121 JAMFS SCHEIBEL ? . ��. �,. � 6�2-z98-561v MAYOR �i�H�iii�v J :� , t � May 14 , 19 91 I , �,5�� .: - .'?"� '� '- '�' ��a ' �*6�� ' David A. Eichinger, President , , � , �'�� E S W Inc. , dba Easy Street West " �,`��" � �,��`�� 616 West Como Avenue `� �:• � L� �'1�� j�' , �..` ��s#�f � �� 4r Saint Paul, Minnesota 55103 I NOTICE OF AEA, ' �� '��'; �.� £ 7 � �� RE: City of St. Paul vs. E S W Inc. , dba Easy Street West, 6'1: :� .,�'�;� West Como Avenue, Saint Paul, Minnesota 55103 .��zr � � �:� Dear Mr. Eichinger: ;��'.� Y µ� j u� . . .j �'i.�-�` �*<'" r This is to notify you that a hearing will be Y�eld concerning ��1. � ,� the licenses held at the premises stated abov�e at the followin>, time, date and place: �_ � ` f ' ,_ � � , *,� . �.a Date: June 13, 1991 �,, Time: 9 a.m. ; :.��,, Place: Room 1504 A .�.: '�k�..:. City Hall Annex 25 West Fourth Street St. Paul, MN 55102 The judge will be an Administrative Law Judge from the State of :� Minnesota Office of Administrative Hearings: T' ,�� , rs Name: Suzanne Born � ',1s 2116 Second Avenue South �.;;� Minneapolis, MN 55404 ';�-ii�� Telephone: 871-4358 I The Council of the City of Saint Paul has the a!uthority to provide for hearings concerning licensed premises, and for adverse action against such licenses, under Chapter 310, incluc�ing sections 310. 05 and 310. 06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non-intoxicating iquor, authority is also conveyed by section 340A.415 of the �innesota Statutes. Adverse action may include revocation, suspens�on, fines and other penalties or conditions. } ,t ;;; u� M��. ' � i �� I . �I��g � �� , May 14, 1991 ��'� '�� `'� David A. Eichinger, President �� ',� . 1� s�„ rM�' �•.` '� I �� Page two ; �: �,� s " � `f`� � � _ Evidence will be presented to the judge which m y lea' �verse action against all the licenses you hold at the, abovey f�. ��s�"as . , :a , follows: �;�,' ��k'' ,�s; �:.,' ��On April 20, 1991, at about 2 :00 a.m. , persons.,_�ii � permitted to display and consume alcoholic beveraqes .� 4�{ � t N,, the licensed premises in violation of section 409.07 (c)��;�� - `;�'��' of the Saint Paul Leqislative �Code. In ddition, the� �� :3 bartender furnished alcoholic beverages to �atrons of theA,.�` ; � ` bar after 2:00 a.m. Police officers were admitted to the :` '`��c a �;� � bar only after the bartender had removed bottles and "�.� ��i, q �� glasses from the top of the bar.�� , �. , ",��,�� `,�� » You have the right to be represented by an a torney befo�e�`t '� �`�"�� .: during the hearing if you so choose, or you can epresent your��, '� �° You may also have a person of your� choice rep esent you, to ��s a �".� ; extent not prohibited as unauthorized practice 'of law. �r�, �:_ , <b ��. ��: �`r,� The hearing will be conducted accordance with he requirements of. � �#�`�' sections 14 . 57 to 14 . 62 of the Minnesota Statu es, and such parts '� '�t of the procedures under section 310. 05 o the Saint Paul �� Legislative Code as may be applicable. ,�� ,�� 4�� At the hearing, the Administrative Law Judge will have all parties _ identify themselves for the-�e�e��. Then the Ci�y will present its witnesses and evidence, each of whom the licen�ee or attorney may cross-examine. The licensee may then offe ' 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 tes�imony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for �xample, the owners or occupants of property located in close proximity to the licensed premises may have substantial interest in t e outcome of the proceeding. Concluding arguments may be ma e 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 docum nts, records and witnesses you will or may need to support your p sition. Subpoenas may be available to compel the attendance o witnesses or the production of documents in conformity with Mi nesota Rules, part 1400.7000. , �;, �< , ��" � , �. � �� ,a �<'i, r -� ._ ,� ;'. I . � ��_ ��.� � May 14, 1991 ;:y.� David A. Eichinger, President ', , 4 � � +_+, Page three I , ::?';', "'�; If you think that this matter can be resolved o sett- =thout a formal hearing, please contact or have your at orne` �` ct the undersigned. If a stipulation or agreement ca be `r; �;a,s to the facts, that stipulation will be presented to the Acl�rt r�tive Law Judge for incorporation into his or her ecommez�- ta�T for Council action. �`� �� If you fail to appear at the hearing, the allec�ations against you which have been stated earlier in this notice m�y be taken a �' ,r.ue and your ability to challenge them forfeited. If non-public , ata . is received into evidence at the hearing, it may become p�, 'l�ic unless objection is made and relief requested under Minn ' �" ta Statutes, section 14 . 60, subdivision 2. � , �;` y��p{ -�' ,� Y T�' �;,'l� ' Very Truly Yours, .,,�"� �,' .�s�`,;,; � �� . X ,� �� 1°,, .�'+;, ,, PHILIP . BYRNE I ; Assistant City Attorney '_�E, :�; cc: Robert Kessler �� _ License Inspector =` �`� Albert B. Olson City Clerk Paige Purcell Office of Administrative Hearings Lt. Nancy DiPerna I ;� � Vice Unit ' Ms. Shelly VanKampen Community Organizer District 6 Planning Council -4;:.'.'�- . }„�, ��,, .� ,�'.t cj��Y;�i �� #� s� t R .i