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91-2101 �RlG�l�IA�, ��� ��� � '` ��� �� � f _ zrQ� �� _>:. ,�--�--� Council File # ,'� ;� '� i `'" 1 Green Sheet # RESOLUTION �"�� CITY OF SAINT PAUL, MINNESOTA l � Presented By Referred To Committee: Date RESOLVED, that all of the licenses, including on-sale and Sunday on-sale intoxicating liquor, restaurant (B), off-sale malt liquor and vending machines, issued for the Glass Bar at 299 Maria Street in Saint Paul, are hereby suspended for three (3) consecutive days, commencing on the second Sunday following publication of this resolution; and be it FURTHER RESOLVED, that the findings of fact and conclusions of law contained in the AL.J Report in this case, dated September 25, 1991, are expressly ratified and adopted as the written findings and conclusions of the Council in this matter. The recommendation of the ALJ as to disposition is not accepted, and the recommendation of the license division contained in Written Exceptions filed with the Council and dated October 10, 1991, are ratified and adopted as part of the basis for the Council action herein. This Resolution is also based on the record of the proceedings before the AL.J, including the hearing on August 12, 1991, the documents and e�ibits introduced therein, the findings of fact and conclusions of law of the ALJ as referenced above, the arguments and statements of the parties on November 5, 1991, and the deliberation of the Council in open session. A copy of this Resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge, and to the licenseholder. Yeas, Nays Absent Requested by Department of: imon � oswitz on %'" acca ee — e tman une i son BY� Adopted by Council: Date NOV � g �ggt Form Approved by City Attorney Adoption Certif�ed by Coun�il/Secretary gy: ��(,(,� �� �,I��L , � � � � i - I BY� �"j' � f � Approved by Mayor for Submission to Approved b'y Ma�or: Date N�V � � ,99 Council , By: „ G�tu� / By' P9��t13HED �;�� �0'9l �• 5-2101-5711-6 ��-yi a�o�✓ > STATE OF MINNESOTA . OFFICE OF ADMINISTRATIVE HEARINGS FOR THE CITY OF ST. PAUL City of St. Paul , FINDINGS OF FACT. �, CONCLUSIONS. AND RECOMMENDATION The Glass Bar. The above-entitled matter came on for hearing before Administrative Law Judge Howard L. Kaibel , Jr. on August 12, 1991 , at 9:00 a.m. in Room 1503, City Hail Annex, 25 West Fourth Street, St. Paul , Minnesota 55102. Philip B. Byrne, Assistant City Attorney, 647 City Hall , St. Paul , Minnesota 55102 appeared on behalf of the City of St. Paul (hereinafter "the City") . Joseph J. Perkovich, President of the Glass Bar, Inc. , 299 Maria Avenue, St. Paul , M9nnesota 55106 appeared on behalf of the Glass Bar, Inc. <hereinafter "the Licensee" or "the Glass Bar">. The record closed on this matter on August 12, 1991 , at the close of the hearing. The City called St. Paul Police Sergeant Donald Cavanaugh and Police Intern Brian Jones as witnesses. Joseph Perkovich testified on behalf of the Licensee. This Report is a Recommendation, � a final decision. The City Council will make the final decision in this matter after a review of the record and after providing the licensee an opportunity to present oral or written arguments to the Council . The Council may accept, re�ect, or modify the Findings, Conclusions, and Recommendations contained herein. ISSUE The lssue to be determined in this proceeding is whether the licensee furnished intoxicating liquor to a minor on June 20, 1991 , in violation of section 409.08 (2> of the St. Paul Legislative Code. Based on the record herein, the Administrative Law Judge makes the following: _ . - _ FINDINGS OF FACT . - - 1 . The Notice of Hearing for this matter was served by U.S. Mail upon the Licensee through its President, Joseph J. Perkovich, and its Secretary, � Aurilio Nardi . The Notice was mailed on July 11 , 1991 , to the Licensee' s address, 299 Marie Avenue, St. Paul , Minnesota 55106. The mailed Notice contained an amended statement of the grounds upon which adverse action was � being sought. The final statement of the ground for adverse action reads as � � � � �=yi ai�/r follows: , , On June 20, 1991 , at about 6:30 p.m. , an employee of the licensed establishment sold a Miller Lite beer to a minor without check9ng the age and/or identlfication of the minor. City' s Exhibit 1 . 2. The Licensee is a corporation which operates a bar known as the Glass Bar. City records indicate that the Licensee is owned by Joseph J. Perkovich. The licensed premises are located at 299 Mar1a Avenue, St. Paul , Minnesota. The Licensee holds on—sale liquor and Sunday 1lquor licenses; a restaurant license; and a cigarette license, all from the City. City' s Exhibit 6. 3. The Licensee' s liquor licenses were suspended for six days on August 30, 1988, as a result of a sale to a minor. That sale was part of a decoy operat9on conducted by the St. Paul Police Department. The suspension on August 30, 1988, was the only adverse action ever taken against licenses held by the Licensee. 4. The St. Paul Police Department has received recent complaints about prostitution conducted near, but not on the licensed premises. The Police Department also received complaints about sales of illegal drugs conducted on the licensed premises. No evidence was introduced to substantlate any of these complaints. Since 1988, there have been no compTaints concerning the Licensee serving minors. 5. At approximately 6:30 p.m. on June 20, 1991 , Brian Jones entered the Licensee's premises and seated himself at the bar, near the entrance. Mr. Jones requested a beer from the person tending the bar. That person, Joan Lavalle, took Mr. Jones' order, served him a Milter Lite beer, and received 51 .50 as payment for that intoxicating liquor. Ms. Lavalle was apparently in charge of the licensed premises on the evening of June 20, 1991 , and the Licensee has not disputed the City's allegation that Ms. Lavalle was employed by the Llcensee that evening. 6. On June 20, 1991 , Mr. Jones was 20 years of age. His exact date of birth is not a part of the official hearing record in this case. 7. Mr. Jones was present 9n the Glass Bar as part of an urrdercover "decoy" operation run by the Vice Unit of the St. Paul Police Department. As part of this operation, plainclothes officers of the Department accompany an underage votunteer, usually an intern, to bars and liquor stores. At each location, the minor attempts to purchase intoxicating 1lquor. The Glass Bar - was one _of six establishments visited as part of the operation on June 20, 1991 . Mr. Jones was served in five of the six establishments vislted. 8. The plainclothes officers participating in the operation were recogn9zed as police officers by patrons of the establlshment. There was no communication between Mr. Jones and the officers before he was served, Khile on the Licensee' s premises. Mr. Jones did not identify himself to the bartender as being associated with the Police Department elther before or after being served. —2— . . . U����°� ✓ 9. At no time wh11e in the Glass Bar was Mr. Jones asked to produce identification or verify his age. Mr. Jones r+as instructed that, if asked, he was to state that he had no identification with him. He was also instructed not to falsely state that he was of legal drinking age. 10. Sergeant Cavanaugh was sitting at the bar of the Ljcensee when Mr. Jones entered the establlshment. Sergeant Cavanaugh observed the sale of intoxicating liquor to Mr. Jones which forms the basis of the charge aga9nst the Licensee. He saw Mr. Jones sit at the bar, speak to Ms. Lavalle, receive a M111er Lite beer from Ms. Lavalle, and pay her for the liquor. Sergeant Cavanaugh was not close enough to overhear any of the conversation between Mr. Jones and Ms. Lavalle. He did not observe any behavior between them whlch would indicate that Mr. Jones had been asked to display identification. il . Ms. Lavalle was present at the hearing and ldentifled by Mr. Jones and Sergeant Cavanaugh as the person who served the intoxicating liquor. She did not appear as a witness in this proceeding. 12. Mr. Jones did not drink the intoxicating liquor furnished by Ms. Lavalle. He left the Glass Bar, while Sergeant Cavanaugh awaited the arrival of a uniformed officer. Sergeant Cavanaugh remalned to ensure that the uniformed officer identified the person who served Mr. Jones. The decoy was not on the premises when that identification took place. 13. The police report memorializing the decoy operation did not identify the decoy by name, or indicate his date of birth. Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1 . Section 409.08 (2)(a> of the St. Paul Legislative Code provides: i No licensee, or agent or employee thereof, shall serve or d9spense ; upon the 1lcensed premises any intoxicating liquor to any minor; nor � shall such 19censee, agent or employee permit any minor to be ' furnished with or to consume any such liquor on the licensed premises; nor shall such licensee, agent or employee permit any minor to be delivered any such liquor. 2. Section 310.06 of the St. Paul Legislative Code provides in pertinent part: (a> The Council is authorized to take adverse action . . . against any � - -license or . . . iicensee- . . . as provided in and by these chapters. <b) Such adverse action may be based on one or more of the following reasons , which are in addition to any other reason specifically provided by law or in these chapters. (6>(i ) The licensee . . . (or any other person whose conduct may by law be imputed to the licensee . . .> has violated, or performed any act whlch is a violation of any of the provisions of these chapters or of any statute, ordinance, or regulation reasonably related to the 1lcensed activity, regardless of whether crlminal charges have been brought in connection therewith. —3— ! i . . ��9�-a��/' L/ 3. Minn. Stat. § 340A.503, subd. 2 (1> makes it unlawful for any person V to "sell , barter, furnish, or give alcoholic beverages to a person under 21 , years of age." 4. Under section 409.26 of the St. Paul Legislative Code the presumptive penalty for a first appearance before the C1ty Council for a sale of lntoxicating liquor to a minor is a three day suspension. The presumptive penalty under that section for a second offense is a six day suspension. 5. Since more than eighteen months have passed since the last time the Licensee has appeared for a violation, th9s appearance must be treated as a first appearance by operation of St. Paul Legislative Code section 409.26 (e)(1 ) . 6. The St. Paul City Council and the Administrative Law Judge have �urisdict9on in this matter pursuant to the St. Paul Legislative Code section 310.06 (a> and (b)<6><i > ; Minn. Stat. § 340A.415; and Minn. Stat. § 14.50. 7. An employee of the Licensee served an intoxicating liquor to a minor in violation of St. Paul Legislative Code section 409.08 (2)<a) and Minn. Stat. § 340A.503, subd. 2(1) . 8. The employee' s action in serving a minor constitutes a v9olation of the St. Paul Legislative Code section 409.08 (2)<a) by the Llcensee. 9. The employee' s violation of Minn. Stat. § 340A.503, subd. 2(1) is imputed to the Licensee by operation of Minn. Stat. § 340A.501 , whlch renders the act of an employee an act of the Licensee for the purposes of the sales to minors. 10. The City has proved by a preponderance of the evidence that the licensee' s employee served a minor an intoxicating liquor on June 20, 1991 , at about 6:30 p.m. on the licensed premises without inquiring 9nto the age of the person served. 11 . The foregoing Conclusions are arrived at for the reasons set forth in the following Memorandum, which is hereby incorporated into these Conclusions. Based on the foregoing Conclusions, the Administrative Law Judge makes the following: � RECOMMENDATION IT IS RESPECTFULLY RECOMMENDED that the St. Paul City Council suspend the licenses of the Glass Bar or, in the alternative, impose a civil penaity for the violation, and due to mitigating circumstances the suspension or penalty - - should be below the presumptive penalty imposed for a sale to a minor. Dated: September �J� , 1991 . WARD L. L, JR. Adminis rative Law Judge —4— Y ' N T ����I4� V 0 ICE Pursuant to Minn. Stat. § 14.62, subd. i , the St. Paul City Council is required to served its final decision on each party and the Administrative Law Judge by first class mail . Reported: Taped (Tape No. 11095> MEMORANDUM This is a proceeding to determine whether adverse action should be taken against the liquor, cigarette, and other licenses held by the Glass Bar. Based upon the plain language of the St. Paul Legislative Code and Mlnnesota Statutes, as well as the uncontroverted fact that a sale was made to a minor, the conclusion is inescapable that adverse action is appropriate. However, several factors exist which render imposition of the full presumptive penalty inappropriate in this case. The foremost reason for downward departure from �he presumptive penalty of a three day suspension is the age of the decoy. The minor, a police intern, testified that he was 20 years of age on June 20, 1991 . The decoy' s birthdate 9s not contained in the record of this case. The decoy's appearance does not plalnly disclose that he is a minor. The evidence of the decoy' s age compels the conclusion that the City has demonstrated a techn9cal violation of the rules prohibiting service to minors. The record lacks any evidence suggesting that the licensee's employee willfully served the decoy, knowing that the decoy was a minor. In other cases, the St. Paul Po19ce Department has relied upon decoys whose youth clearly tests the 1lcensees' adherence to the prohibition ag�lnst serving minors. The age of decoys has ranged from 16 years to 19 years. In this matter, the decoy was ZO years of age when the sale was made, but there is no information as to whether he had �ust turned 20 or was nearly 21 . Mr. Perkovich, a bartender for 41 years, testified that he might have served th� decoy without asking for identification, owing to the decoy's apparent age. 1/ In Re the Liquor License of Josenh J Perkovich d/b/a Glass Bar, OAH No. 58-2101-2439-6 (Recommendation issued July 9, 1988)tdecoy 19 years of age> ; In the Matter of the Liquor License of Bloomie's Inc d/b/a Marshall Liquors, OAH No. 58-2101-2448-6 (Amended Recommendation issued October 29, 1988)(decoy 16 years of age> ; In the Matter of the Licenses of Gabe' s by the Park, OAH No. 53-2141-2543-6 (Recommendation issued July 7, 1988)(decoy 19 - - years of age) ; In the Matter of Anne Marie Dragicevich d/b/a Snelling Avenue , . Fine Wines, OAH No. 8-2101-2773-6 (Recommendatlon lssued October 21 , 1988>(decoys 18 years of age) . � � 2/ Reasonable minds differ as to whether the decoy looked so mature that experienced sales persons would err in deciding whether to check his identification. It is certainly significant that five of six experienced . sellers here, whose livelihoods literally depend on making this �udgment daily were fooled. -5- '� � .� : �'�9y--a,�i � The decoy was served 1n five of six establishments vislted as part of this op�eration. Wh11e other violations do not excuse this one, they do suggest � that the decoy' s appearance is of an individual who has reached legal drinking age. The other reason to depart downward from the presumptive penalty is the lack of any evidence that, outside this decoy operation, any violations of the liquor rules have occurred at the licensed premises. The complaints received by the police regarding this establishment have nothing to do with serving m9nors. The methods used by the police suggest that the operation was not directed at any particular problem. Instead, the operation appears to have been a routine reminder to licensees of the importance of carding young people, where the decoy travels from bar (or liquor store) to bar and repeats the process of attempting to purchase liquor, whfile other officers trail beh9nd to identify any violator discovered. This process does not appear to be related to any complaints or site-specific problems. Since the violation occurred as a result of a process designed to "get the attention" of all licensees there is less reason to impose a presumptive penalty designed for particularly serious "problem" situations. Mr. Perkovich maintained that the appropriate method of enforcing the rules regarding sales to minors is to confront the server with the violation at the time of the sale. The police do not do so since that would impair the efficiency of the decoy operation. As discussed above, the police operation is lawful . Mr. Perkovich also maintains that the proper way to enforce violations is to criminally prosecute the server. The plain language of the St. Paul Legislative Code and Minnesota Statutes both indicate that civil action against the licensee is another proper method of curbing sales of intoxicat9ng liquor to minors. The City has shown that a sale to a minor has taken place on the Licensee' s premises and that adverse action against the Glass Bar's licenses 1s appropriate. The circumstances of the violation strongly suggest that the presumptive penalty of three days is too harsh for the conduct engaged in by the Licensee. Staying execution of two days of the sentence, so long as there are no further violations at this establishment during the next year, would be more appropriate to those circumstances. H.L.K.Jr. -6- �. _ � . �� � ie� ./ @��-� . / STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS OAH Docket No. 5-2101-5711-6 IN CITY COUNCIL In the Matter of the Licenses of The Glass Bar, Inc. , dba The Glass Bar � WRITTEN EXCEPTIONS October 10, 1991 I. Summarv The License Division strongly disagrees with the reasons given by the Administrative Law Judge in this case in support of his recommendation for a downward departure. While the City Council may properly, under the ordinance, provide for downward departures from the penalty matrix, to do so for the reasons given in this case would run counter to the policy of the law and effective law enforcement. Based on the record of the hearing, and on the findings of fact and conclusions of law in the AIJ's Report, we strongly urge that the Council impose the penalty provided in section 409.26 of the Legislative Code without a downward departure. II. Administrative Law Judqe Reasons The Administrative Law Judge (hereafter, the "ALJ") recommends a downward departure for two reasons. First, the minor who entered the Glass Bar and was served was 20 years old. Second, the complaints received by the Vice Unit about the Glass Bar were in relation to violations other than serving minors. � Acre of the Minor. The ALJ's reasoning for allowing a departure because of the age of the minor is not clearly stated. He states that there was no evidence in the record as to when the minor's birthday was, although the minor appeared and testified. Neither the AIJ nor the licensee asked for that information, although each had ample opportunity to do so. There was no finding that the minor appeared to be much older than 21 years.l 1 If the Vice Unit had attempted to make a minor appear, by dress, makeup or disguise, to be older than his or her true age, that would obviously be improper. Or if the Vice Unit sought out a 1 o �.:Y1' '7� .S�'� i� .<s�t .; � ,�.er 7�. �"�.'7 't.� T.ri` n � ^'�#`''Y"T>�"�''�.�q�g, � 's��.� . . . �SC�`+�,,,zr ,;¢""�-yp, .yA '�� �%'� �'..,:�u.i�.�» a�.„�;:. , � �'>.+C'�,rs, �i�y az.Y.�-��,u 4§'r� �y`,�'�s'�.'''�x''�,-' 't„�'�'i��,� �c� ..-t.;�:a ;§�r'�xy,,,�a'� - . " ._".�?. ..'�eC.�:. ).w.. N:3. , 1,.._..__. ,i.�... �h... . _rt."a..t1i1p1ii�'-M7�^.y�rws�+�*_w�^S i'"�4 7i�7 7111 li..._.D�5lw,.-SFiF'�_ S's:s� .s.tF_� :ers,c__.a,�._ - � ��G-o?/0/ ,� � The ALJ also says that the fact that five of the six establishments visited by the decoy minor that evening did in fact serve the minor supports mitigation. This is not necessarily proof of the fact that the minor appeared to be older, but that there continues to be a problem in Saint Paul of laxity in carding people in bars. The ALJ recites past cases in which minors were used in Saint Paul. These cases were not introduced into evidence at the hearing, so the ALJ must have done this research on his own. It is outside the scope of responsibility of the ALJ to attempt to impose a standard upon the Saint Paul Police Department that all decoys in the future must range between 16 and 19 years old. It does not take great insight to recognize that the biggest problem for licensees is the category of older minors, who are 19 and 20 years old, and who could appear to some to be 21 and others not. It is precisely the reason why the Council insists that all such persons be asked for identification, and that licensees must be responsible for seeing that their employees do that. Police O�eration. The ALJ says that there should be a downward departure because the reason for the Vice Unit decoy operation related to other offenses unrelated to minors being served. First of all, there is no policy written or otherwise, which limits the full range of matrix penalties to only those cases in which there has been a previous report or complaint of the same violation. This is not true for sales to minors, nor is it true for commission of felonies related to the licensed activity. The police are not obligated to wait for someone to say that minors are being served in a particular bar to do a decoy operation. The citizens have a right to expect that consistent with personnel availability and other workload the police will be vigorous in dealing with problems which have potentially dangerous • ramifications.2 ZII. Licensee Reasons The licensee's defense at the hearing demonstrates the need for adhering to the penalty matrix. The position of the licensee at the hearing was as follows: 1. The blame for the violation belongs solely to the bartender, and not to him as the licensee. It is unjust minor who appeared to be very mature, for the purpose of fooling bartenders, that would also be improper. Neither was the case here. 2 In this case, the Glass Bar did have a past violation. There were also complaints relating to other matters which focussed the attention of the Vice Unit on that bar. 2 . .- ��La/o� ./ . . to hold him responsible for her mistake. She should have been charged with the misdemeanor criminal offense.3 2 . The police procedures were wrong and unfair in this case, because the police should have brought the decoy back into the bar to identify him for the bartender and the licensee. This should have been followed by a warning and not an adverse license action.` It is noteworthy that the licensee did not at the hearing introduce any evidence or even talk about changes in policies and procedures that would tend to prevent this from happening in the future. � The licensee also volunteered the statement at the hearing that a three-day suspension would not hurt him, because the bar business was extremely bad anyway. III. Conclusion The Council is respectfully urged to adopt the ALJ's findings and conclusions, but not to adopt the� recommendation or the reasons given for that recommendation. The memorandum attached to the ALJ's Report should not be ratified or adopted. The Council is requested to impose the suspension provided for by the penalty matrix for the reasons set forth above. Submitted this lOth day of October, 1991. . . �� . Philip . Byrn Assistant City Attorney Attorney for the License Inspector 647 City Hall Saint Paul, Minnesota 55102 6112-298-5121 � . Atty. Reg. No. 13961 3 This is directly contrary to the long-established policy of holding licensees responsible for the actions of their employees, a policy which is lawful and based on sound policy considerations. Mr. Perkovich, as a long-time licenseholder in Saint Paul, is well aware of his responsibilities in this regard. 4 The ALJ's memorandum concedes that the police were well within their prerogatives in proceeding as they did in this matter. 3 �� - � �o � �,TY�. �0` ., CITY OF SAINT PAUL ✓ 4 4 � ��r�������� o ���. OFFICE OF THE CITY ATTORNEY ., � I � '; "" .� JANE A. MC PEAK, CITY ATTORNEY 800 Landmark Towers RECEIVED Saint Paul,Mi�nesota 55102 612-298-5121 JAMES SCHEIBEL FAX 612-298-5619 MAYOR 0 C T 0 21991 october �, 1991 CITY CLERK Mr. Joseph J. Perkovich, President Glass Bar Inc. , dba Glass Bar 299 Maria Avenue Saint Paul, Minnesota 55106 NOTICE OF COUNCIL HEARING RE: All licenses held by Glass Bar Inc. , dba Glass Bar for the premises located at 299 Maria Avenue, Saint Paul. Dear Mr. Perkovich: Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-mentioned establishment has been scheduled for 9: 00 o�clock a.m. , November 5, 1991 in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opportunity to file exceptions to the report with the City Clerk at any time during normal business hours. You may also present oral or written argument to the Council at the Hearing. No new evidence will be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Administrative Law Judge and on the arguments made and exceptions filed, but may depart from the recommendations of such / Judge as permitted by law in the exercise of its judgment and discretion. Very Truly Yours, . PHILIP B. BYRNE Assistant City Attorney cc: Robert Kessler License Inspector Lt. Nancy DiPerna Vice Unit Molly O'Rourke City Clerk Ms. Susan Omoto Community Organizer Dayton's Bluff Community Council .� ..,_ , . .> �,r_ _ _ - - - �... -- ..' : t i .^ _ Y. �;' .� '_,� ..��. � ..:.. ...i ..'�.;�. .., _ . � .. . :: .y�.w. ...:� �.:: '." .- � . ._.. ..:. ._. .. � . .�. . . :.. .:.r . �:; -� '...f s .. ... , .. - ..— �.� .r..... . � �, ..� . . �� i „m,�m, ` � � , �••CD�'• �\L _.Np�� �' �� � �� �•� �t�p�i]��4 u��:� STATE O F M I N N ESOTA OFFICE OF ADMINISTRATIVE HEARINGS FIFTH FLOOR,FLOUR EXCHANGE BUILDING 310 FOURTH AVENUE SOUTH MINNEAPOLIS,MINNESOTA 55415 (612)341•7600 September 25, 1991 RECEIVED S E P 2 6 1991 CITY CLERK St. Paul City Council Attn: Molly 0'Rourke City Clerk 386 City Hall St. Paul , MN 55102 Re: City of St. Paul v. The Glass Bar; OAH Docket No. 5-2101-5711-6. Dear Ms. 0'Rourke: Enclosed herewith and served upon you by mail are the Findings of Fact, Conclusions and Recommendation of the Administrative Law Judge in the above-entitled matter. Also enclosed is the official record, with the exception of the tape recording of the hearing. If you would 19ke a copy of those tapes, please contact our office in wrlting or telephone 341-7642. Our file in this matter is now being closed. Sin rely 0 A L. I EL, J . Administrative Law Judge Telephone: 612/341-7608 HLK:vh � Enc. cc: Philip B. Byrne Joseph J. Perkovich . AN EQUAL OPPORTUNITY EMPLOYER v' STATE OF MINNESOTA) ) ss. COUNTY OF HENNEPIN> AFFIDAVIT OF SERVICE BY U.S. MAIL Virginia R. Halling, being first duly sworn, hereby deposes and says that on the 25th day of September , 1991 , at the Ci ty of Mi nneapol i s, county and state aforementioned, she served the attached FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATTON; OAH Docket No. 5-2101-5711-6 by depositing in the United States mail at said City of Minneapolis, a true and correct copy thereof, properly enveloped, with first class postage prepaid, and addressed to the individuals named on the attached mailing list. Subscribed and sworn to before me this �� day of , 1991 . f-�-� � Notary Public SUSAN SCHLEISMAN ? ' NOTARY pUBLIF�19�p�1Egp7A � i � RAMSEY COUNTY f ` MY COMhiISSION DQ+If�3 4-28-� � Service List 5-2101-5711-6 September 25. 1991 St. Paul C9ty Council Attn: Molly 0'Rourke City Clerk 386 City Hall St. Paul , MN 55102 Philip B. Byrne Assistant City Attorney City of Saint Paul 647 City Hall St. Paul , MN 55102 Joseph J. Perkovich, President The Glass Bar, Inc. 299 Maria Avenue St. Paul , MN 55106 �`CiTY p' ' CITY OF SAINT PAUL a � : ���������� ; OFFICE OF THE CITY ATTORNEY ., „� "'� JANE A. MC PEAK, CITY ATTORNEY 800 Landmark Towers Saint Paul,Minnesota 55102 612-298-5121 JAMES SCHEIBEL Fnx 612-29s-56t9 MAYOR October 1, 1991 Mr. Joseph J. Perkovich, President Glass Bar Inc. , dba Glass Bar 299 Maria Avenue Saint Paul, Minnesota 55106 NOTICE OF COUNCIL HEARING RE: All licenses held by Glass Bar Inc. , dba Glass Bar for the premises located at 299 Maria Avenue, Saint Paul. Dear Mr. Perkovich: Please take notice that a hearing on the report of the Administrative Law Judge concerning the above-mentioned establishment has been scheduled for 9 : 00 o'clock a.m. , November 5, 1991 in the City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse. You have the opportunity to file exceptions to the report with the City Clerk at any time during normal business hours. You may also present oral or written argument to the Council at the Hearing. No new evidence will be received or testimony taken at this hearing. The Council will base its decision on the record of the proceedings before the Administrative Law Judge and on the arguments made and exceptions filed, but may depart from the recommendations of such Judge as permitted by law in the exercise of its judgment and discretion. Very Truly Yours, PHILIP B. BYRNE Assistant City Attorney cc: Robert Kessler License Inspector Lt. Nancy DiPerna Vice Unit Molly O'Rourke City Clerk Ms. Susan Omoto Community Organizer Dayton's Bluff Community Council ..__ ..._.. ..__ .... .�.. ...._ _ _ - - - - _ . . . �-. . � . , . . .. .. _ , . , .. . , . . . ._ . - - _ . .. . . . : .:.F- , , . � 5-2101-5711-6 � '�_ � ��% � STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS R EC EIV ED FOR THE CITY OF ST. PAUL SEP 2 6 1991 City of St. Paul , CITY CLERK FINDINGS OF FACT. v. CONCLUSIONS, AND RECOMMENDATION The Glass Bar. The above-entitled matter came on for hearing before Administrative Law Judge Howard L. Kaibel , Jr. on August 12, 1991 , at 9:00 a.m. in Room 1503, City Hall Annex, 25 West Fourth Street, St. Paul , Minnesota 55102. Philip B. Byrne, Assistant City Attorney, 647 City Hall , St. Paul , Minnesota 55102 appeared on behalf of the City of St. Paul (hereinafter "the City") . Joseph J. Perkovich, President of the Glass Bar, Inc. , 299 Maria Avenue, St. Paul , Minnesota 55106 appeared on behalf of the Glass Bar, Inc. (hereinafter "the Licensee" or "the Glass Bar"> . The record closed on this matter on August 12, 1991 , at the close of the hearing. The City called St. Paul Police Sergeant Donald Cavanaugh and Police Intern Brian Jones as witnesses. Joseph Perkovich testified on behalf of the Licensee. This Report is a Recommendation, not a final decision. The City Council will make the final decision in this matter after a review of the record and after providing the licensee an opportunity to present oral or written arguments to the Council . The Council may accept, re�ect, or modify the Findings, Conclusions, and Recommendations contained herein. ISSUE The issue to be determined in this proceeding is whether the licensee furnished intoxicating liquor to a minor on June Z0, 1991 , in violation of section 409.08 (2> of the St. Paul Legislative Code. Based on the record herein, the Administrative Law Judge makes the following: FINDINGS OF FACT 1 . The Notice of Hearing for this matter was served by U.S. Mail upon the Licensee through its President, Joseph J. Perkovich, and its Secretary, Aurilio Nardi . The Not9ce was mailed on July 11 , 1991 , to the Licensee' s address, 299 Marie Avenue, St. Paul , Minnesota 55106. The mailed Notice contained an amended statement of the grounds upon which adverse action was being sought. The final statement of the ground for adverse action reads as �� - ,� � � i ✓ follows: On June 20, 1991 , at about 6:30 p.m. , an employee of the licensed establishment sold a Miller Lite beer to a minor without checking the age and/or identification of the minor. City' s Exhibit 1 . 2. The Licensee is a corporation which operates a bar known as the Glass Bar. City records indicate that the Licensee is owned by Joseph J. Perkovich. The licensed premises are located at 299 Maria Avenue, St. Paul , Minnesota. The Licensee holds on-sale liquor and Sunday liquor licenses; a restaurant license; and a cigarette license, all from the City. City' s Exhibit 6. 3. The Licensee' s liquor licenses were suspended for six days on August 30, 1988, as a result of a sale to a minor. That sale was part of a deeoy operation conducted by the St. Paul Police Department. The suspension on August 30, 1988, was the only adverse action ever taken against licenses held by the Licensee. 4. The St. Paul Police Department has received recent complaints about prostitution conducted near, but not on the licensed premises. The Police Department also received complaints about sales of illegal drugs conducted on the licensed premises. No evidence was introduced to substantiate any of these complaints. Since 1988, there have been no complaints concerning the Licensee serving minors. 5. At approximately 6:30 p.m. on June 20, 1991 , Brian Jones entered the Licensee's premises and seated himself at the bar, near the entrance. Mr. Jones requested a beer from the person tending the bar. That person, Joan Lavalle, took Mr. Jones' order, served him a Miller Lite beer, and received $1 .50 as payment for that intoxicating liquor. Ms. Lavalle was apparently in charge of the licensed premises on the evening of June 20, 1991 , and the Licensee has not disputed the City' s allegation that Ms. Lavalle was employed by the Licensee that evening. 6. On June Z0, 1991 , Mr. Jones was 20 years of age. His exact date of birth is not a part of the official hearing record in thls case. 7. Mr. Jones was present in the Glass Bar as part of an undercover "decoy" operation run by the Vice Unit of the St. Paul Police Department. As part of this operation, plainclothes officers of the Department accompany an underage volunteer, usually an intern, to bars and liquor stores. At each location, the minor attempts to purchase intoxicating liquor. The Glass Bar was one of six establishments visited as part of the operation on June 20, 1991 . Mr. Jones was served in five of the six establishments visited. 8. The ptainclothes officers participating in the operation were recognized as police officers by patrons of the establishment. There was no communication between Mr. Jones and the officers before he was served, while on the Licensee' s premises. Mr. Jones did not identify himself to the bartender as being associated with the Police Department either before or after being served. -2- ✓ 9. At no time while in the Glass Bar was Mr. Jones asked to produce identification or verify his age. Mr. Jones was instructed that, if asked, he was to state that he had no identification with him. He was also instructed not to falsely state that he was of legal drinking age. 10. Sergeant Cavanaugh was sitting at the bar of the Licensee when Mr. Jones entered the establishment. Sergeant Cavanaugh observed the sale of intoxicating liquor to Mr. Jones which forms the basis of the charge against the Licensee. He saw Mr. Jones sit at the bar, speak to Ms. Lavalle, receive a Miller L9te beer from Ms. Lavalle, and pay her for the liquor. Sergeant Cavanaugh was not close enough to overhear any of the conversation between Mr. Jones and Ms. Lavalle. He did not observe any behavior between them which would indicate that Mr. Jones had been asked to display identification. 11 . Ms. Lavalle was present at the hearing and identified by Mr. Jones and Sergeant Cavanaugh as the person who served the intoxicating liquor. She did not appear as a witness in this proceeding. 12. Mr. Jones did not drink the intoxicating liquor furnished by Ms. Lavalle. He left the Glass Bar, while Sergeant Cavanaugh awaited the arrival of a uniformed officer. Sergeant Cavanaugh remained to ensure that the uniformed officer identified the person who served Mr. Jones. The decoy was not on the premises when that identification took place. 13. The police report memorializing the decoy operation did not identify the decoy by name, or indicate his date of birth. Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS 1 . Section 409.08 (2>(a> of the St. Paul Legislative Code provides: No licensee, or agent or employee thereof, shall serve or dispense upon the licensed premises any intoxicating liquor to any minor; nor shall such licensee, agent or employee permit any minor to be furnished with or to consume any such liquor on the licensed premises; nor shall such licensee, agent or employee permit any m9nor to be delivered any such liquor. Z. Section 310.06 of the St. Paul Legislative Code provides in pertinent part: (a> The Council is authorized to take adverse action . . . against any license or . . . licensee . . . as provided in and by these chapters. (b> Such adverse action may be based on one or more of the following reasons, which are in addition to any other reason specifically provided by law or in these chapters. (6>(i > The licensee . . . (or any other person whose conduct may by law be imputed to the licensee . . . > has violated, or performed any act which is a violation of any of the provisians of these chapters or of any statute, ordinance, or regulation reasonably related to the licensed activity, regardless of whether criminal charges have been brought in connection therewith. -3- ✓ 3. Minn. Stat. § 340A.503, subd. 2 (1 ) makes it unlawful for any person to "sell , barter, furnish, or give alcoholic beverages to a person under 21 years of age. " 4. Under section 409.26 of the St. Paul Legislative Code the presumptive penalty for a first appearance before the City Council for a sale of intoxicating liquor to a minor is a three day suspension. The presumptive penalty under that section for a second offense is a six day suspension. 5. Since more than eighteen months have passed since the last time the Licensee has appeared for a violation, this appearance must be treated as a first appearance by operation of St. Paul Legislative Code section 409.26 (e)(1 ) . 6. The St. Paul City Council and the Administrative Law Judge have jurisdiction in this matter pursuant to the St. Paul Legislative Code section 310.06 (a> and (b)(6><i ) ; Minn. Stat. § 340A.415; and Minn. Stat. § 14.50. 7. An employee of the Licensee served an intoxicating liquor to a minor in violation of St. Paul Legislative Code section 409.08 (2)(a> and Minn. Stat. § 340A.503, subd. 2(1 > . 8. The employee' s action in serving a minor constitutes a violation of the St. Paul Leglslative Code section 409.08 (2)(a) by the Licensee. 9. The employee' s violation of Minn. Stat. § 340A.503, subd. 2(1 > is imputed to the Licensee by operation of Minn. Stat. § 340A.501 , which renders the act of an employee an act of the Licensee for the purposes of the sales to minors. 10. The City has proved by a preponderance of the evidence that the licensee' s employee served a minor an intoxicating liquor on June 20, 1991 , at about 6:30 p.m. on the licensed premises w3thout inquiring into the age of the person served. 11 . The foregoing Conclusions are arrived at for the reasons set forth in the following Memorandum, which is hereby incorporated into these Conclusions. Based on the foregoing Conclusions, the Administrative Law Judge makes the following: RECOMMENDATION IT IS RESPECTFULLY RECOMMENDED that the St. Paul City Council suspend the licenses of the Glass Bar or, in the alternative, impose a civil penalty for the violation, and due to mitigating circumstances the suspension or penalty should be below the presumptive penalty imposed for a sale to a minor. Dated: September o�J` , 1991 . WARD L. L, JR. Adminis rative Law Judge -4- � NOTICE Pursuant to Minn. Stat. § 14.62, subd. 1 , the St. Paul City Council is required to served its final decision on each party and the Administrative Law Judge by first class mail . Reported: Taped (Tape No. 11095> MEMORANDUM This is a proceeding to determine whether adverse actlon should be taken against the liquor, cigarette, and other licenses held by the Glass Bar. Based upon the plain language of the St. Paul Legislative Code and Minnesota Statutes, as well as the uncontroverted fact that a sale was made to a minor, the conclusion is inescapable that adverse action 1s appropriate. However, several factors exist which render imposition of the full presumptive penalty inappropriate in this case. The foremost reason for downward departure from the presumptive penalty of a three day suspension is the age of the decoy. The minor, a police intern, testified that he was 20 years of age on June 20, 1991 . The decoy' s birthdate is not contained in the record of this case. The decoy's appearance does not plainly disclose that he is a minor. The evidence of the decoy' s age compels the conclusion that the City has demonstrated a technical violation of the rules prohibiting service to minors. The record lacks any evidence suggesting that the licensee' s employee willfully served the decoy, knowing that the decoy was a minor. In other cases, the St. Paul Police Department has relied upon decoys whose youth clearly tests the licensees' adherence to the prohibltion ag�inst serving minors. The age of decoys has ranged from 16 years to 19 years. In this matter, the decoy was 20 years of age when the sale was made, but there is no information as to whether he had �ust turned 20 or was nearly 21 . Mr. Perkovich, a bartender for 41 years, testified that he might have served th� decoy without asking for identification, owing to the decoy' s apparent age. 1/ Tn Re the Liquor License of Josenh J. Perkovich d/b/a Glass Bar, OAH No. 58-2101-2439-6 (Recommendation issued July 9, 1988>(decoy 19 years of age) ; Tn the Matter of the Liquor License of Bloomie' s Inc d/b/a Marshall i r , OAH No. 58-2101-2448-6 (Amended Recommendation issued October 29, 1988)(decoy 16 years of age> ; Tn the Matter of tMe Licenses of Gabe' s by the Park, OAH No. 53-2101-2543-6 (Recommendation issued July 7, 1988>(decoy 19 years of age> ; In the Matter of Anne Marie Dragicevich d/b/a Snellinq Avenue Fine Wines, OAH No. 8-2101-2773-6 (Recommendation issued October 21 , 1988>(decoys 18 years of age> . �/ Reasonable minds differ as to whether the decoy looked so mature that experienced sales persons would err in deciding whether to check his identification. It is certainly significant that five of six experienced sellers here, whose livelihoods literally depend on making this �udgment daily were fooled. -5- �i- � � �� ' � The decoy was served in five of six establishments visited as part of �his operation. While other violations do not excuse this one, they do suggest that the decoy' s appearance is of an individual who has reached legal drinking age. The other reason to depart downward from the presumptive penalty is the lack of any evidence that, outside this decoy operation, any violations of the liquor rules have occurred at the licensed premises. The complaints received by the police regarding this establishment have nothing to do with serving minors. The methods used by the police suggest that the operation was not directed at any particular problem. Instead, the operation appears to have been a routine reminder to licensees of the importance of carding young people, where the decoy travels from bar (or liquor store) to bar and repeats the process of attempting to purchase liquor, while other officers trail behind to identify any violator discovered. This process does not appear to be related to any complaints or site-specific problems. Since the violation occurred as a result of a process designed to "get the attention" of all licensees there is less reason to impose a presumptive penalty designed for particularly serious "problem" situations. Mr. Perkovich maintained that the appropriate method of enforcing the rules regarding sales to minors is to confront the server with the violation at the time of the sale. The police do not do so since that would impair the efficiency of the decoy operation. As discussed above, the police operation is lawful . Mr. Perkovich also maintains that the proper way to enforce violations is to criminally prosecute the server. The plain language of the St. Paul Legislative Code and Minnesota Statutes both indicate that civil action against the licensee is another proper method of curbing sales of intoxicating liquor to minors. The City has shown that a sale to a minor has taken place on the Licensee' s premises and that adverse action against the Glass Bar' s licenses is appropriate. The circumstances of the violation strongly suggest that the presumptive penalty of three days is too harsh for the conduct engaged in by the Licensee. Staying execution of two days of the sentence, so long as there are no further violations at this establishment during the next year, would be more appropriate to those circumstances. H.L.K.Jr. -6- , � ��f _�/� � �',: OFFICE OF ADMINISTRATIVE HEARINGS FOR THE COUNCIL OF THE RECEIVED CITY OF SAINT PAUL S E P 2 6 1991 In re the Licenses of �lTY CLERK The Glass Bar Memorandum on Burden August 12, 1991 of Proof and Evidence 1. Burden of Proof. (a) Preponderance of the Evidence. In a civil hearing concerning adverse action on municipal licenses, the City as the licensing authority must prove its case by a preponderance of the evidence. The City's evidence must lead the trier of fact to believe that it is more likely that its case is true than not true. See Civil Jury Instruction Guides, JIG II 70 G. If there is the slightest tipping of the scales in the direction of the City by credible evidence, then it has proved its case. It is not necessary in a civil case, as this is, to prove the case beyond a reasonable doubt. The criminal standard is not applicable here. The Minnesota Court of Appeals, in In re Kaldahl, 418 N.W.2d 532, 535 (Minn. App. 1988) , said the following: "The burden of proof in Kaldahl's criminal misdemeanor trial was different from the burden of proof in the administrative proceeding which resulted in the (administrative) order. . . . Unless otherwise provided by substantive law the facts at issue in administrative hearings and contested cases must be proven by "a preponderance of the evidence. " See Minn.R. 1400.7300, subp. 5 (1985) ; In re Schultz, 375 N.W.2d 509, 514 (Minn. App. 1985) . " (Emphasis added. ) 1 �. Also see In re Wana, 441 N.W.2d 488, 492 (Minn. 1989) , which reaffirmed the preponderance standard for administrative disciplinary hearings. The fact that no criminal complaint or charge was brought against the licensee does not bar this proceeding, nor is it relevant. In re Kaldahl, supra. Kaldahl makes it clear that the civil administrative proceeding may still go ahead even if the criminal charge has resulted in an acquittal for the defendant. (b) Substantial Evidence. In re Wanct, 441 N.W.2d 488, 492 (Minn. 1989) , also makes clear that the decisions of the administrative agency must be supported by "substantial evidence on the record as a whole. " The findings of the ALJ in this case, and later those of the City Council, as in other license proceedings, must be supported by "evidence that a reasonable mind miqht accept as adequate, " in the context of the entire record. 441 N.W.2d at 492 . 2 . Hearsay Evidence. (a) Police Reports. Police reports which recite the personal observation and experiences of the police officers who wrote them are admissible in administrative hearings, and may support findings made by the administrative or quasi-judicial body which is holding the hearing. Sabes v. City of Minneapolis, 265 Minn. 166, 120 N.W. 2d 871, 877-78 (Minn. 1963) . This is an exception to the hearsay rule, based on the admissibility of the official records and reports of public 2 � �;��`_ �,��� v_ officials. (b) Generallv. In Haqen v. State Civil Service Board, 282 Minn. 296, 164 N.W.2d 629, 632 (1969) , the Minnesota Supreme Court stated in a case dealing with a challenge to evidence that a civil service board had admitted: "It is true that an administrative body acting quasi- judicially is not bound by strict procedural rules which circumscribe the action of a court, and that incompetent evidence is not fatal to its determination. " The Minnesota Supreme Court, while recognizing that hearsay evidence is admissible in administrative disciplinary hearings and that hearsay evidence alone might be sufficient to sustain a decision, holds that in most cases hearsay evidence alone will not be enough. In re Wanct, 441 N.W.2d at 495. Minn. Stat. sec. 14 .60, in providing for the evidence that may be received and heard by administrative agencies subject to the state APA, states in part: "In contested cases agencies may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonable prudent persons in the conduct of their affairs. " Sec. 14. 60, subd. 1. 3 . Responsibility for ffiployees' Actions. Section 409. 14 of the Saint Paul Legislative Code provides in part that " (a)ny act by any . . . employee of any licensee hereunder, in violation of this chapter, shall be deemed the act of the employer and licensee of such place . . . . " In addition, section 310. 17 of the Legislative Code provides in pertinent part that 3 � • ' J �� (a)ny act or conduct by any . . . employee . . . of a licensee, . . . which act of conduct takes place on the licensed premises . . . (and which act violates federal, state or local law) . . . , shall be considered to be and treated as the act or conduct of the licensee for the purpose of adverse action against all or any of the licenses held by such licensee. . . . " The licensee thus is liable for the active or inactive permission of his employees in allowing the unlawful activities to take place in the bar. 4. Municipal Power. Municipalities in Minnesota have inherent, sweeping powers to regulate the sale of intoxicating liquor, and to issue and revoke such licenses pursuant to that authority and local ordinances. However, the authority vested in them is not limited by the ordinances they may choose to adopt, but springs from basic police powers. Country Liquors, Inc. v. City Council of the Citv of Minneapolis, 264 N.W.2d 821, 824 (Minn. 1978) ; Moskovitz v. City of Saint Paul, 218 Minn. 543 , 16 N.W.2d 745 (1944) . The Court held in Moskovitz that the ordinances adopted by the city were not the sole source of the power to revoke, which power could arise under the police power or under (in Moskovitz) an applicable charter provision. Similar language as to the broad powers to regulate and deal with licensees can be found in Miller v. City of Saint Paul, 363 N.W.2d 806, 812 (Minn. App. 1985) ; Hvmanson v. City of Saint Paul, 329 N.W.2d 324 (Minn. 1983) ; and 5abes v. City of Minneapolis, 265 Minn. 166, 120 N.W. 2d 871, 875 4 , ► r . �/ _ �!� / ��r. (1963) . Country Liquors. Inc. , supra, makes it clear that the scope of the discretion in licensing decisions given to municipalities is so broad that such decisions will not be overturned unless patently arbitrary and capricious. 264 N.W.2d at 826. Respectfully submitted this 12th day of August, 1991. Phili . Byrne Assist t City ttorney 647 City Hall 612-298-5121 Atty. Reg. No. 13961 5 �1,;� _ �:� �` �' a�=��t� �e•' Y '•� CITY OF SAINT PAUL � OFFICE OF THE CITY ATTORNEY �` �' Q� �` A �' ����� JANE A. MC PEAK, CITY ATTORNEY •� 647 City Hau,Saint Paul,Minnesota 55102 61�298-5121 JAMFS SCHEIBEL FAX 612-298-5619 MAYOR RECEIVE� CITY OF SAINT PAIIL V. GLA88 V. INC. SEP 2 6 1991 Hearinq date: Auqust 12, 1991 �ITY CL��If CITY�B EBHIBITS 1. Notice of Hearing, with affidavit of service (4 pp. ) . 2. Letters of July 1, 1991 and July 9, 1991 (2 pp. ) . 3. Saint Paul Legislative Code Sections 310.05, Hearing Procedures and 310.06, Revocation; suspension; adverse actions; imposition of conditions (4 pp. ) . 4. Saint Paul Legislative Code Section 409.08, Regulations generally (3 pp. ) . 5. Police Report, dated June 20, 1991 Sgt. , Cavanaugh (1 pg. ) . 6. Certified copy of license records showing licenses held by Glass Bar, Inc. (2 pp. ) . �..: �.�:i "r'� - , .::Y ".'. � ��.. ''.i S .. .>:.�x f ` y .�^•�.-� .-t a`x d �, �a. ; :' � .. . .�. _�_._�_�si�.ea.u,.:_.u....`f.�.c...�:...� .._ :,y . ...r. ..-. .«:M_.. . . �Y,.Y..� .�s�..A .Y�.�... n.�..� ..x.�r. ..mw. _ k ..s.. �:1 Li �, � �.�y 4 '��. ..... . '..�.«.. . :'a.. ��c..x.-.�...... e......_ . ..:....� _ % ' /�({' �(' /� . •, _M � . _ _ ��V l�.- 'c�`-/ G , - Adm. Law Hearing August 12, 1991. - City's Exhibit 4� � „ � " Atfidavit of Servtce By Mall � - - �tate of �ir�r�e�ot�, - �- s8. _ . _ . -- - - CountJof..............Ramsey_............_._.._._............:._. _,,,,,,,,,,,,,,,,,,,,,;,,,;,,,,,,,,,,,JOANNE G. CLEMENTS , being Tirst duly sworn, deposes and says ---•---•--_.._............._...�...._......_._....�"�W___............. .._.._..... tleat nn............T.7u1�....11........................ IJ......��.... �he aerved the attached NO i �,..o�H�a �n�. _....._._.....__....: Mr Jose h J P r ' upon _...L.._._.. �,..3II�......._....___ ���xxx�,. .,.....,..Mr....,.Aurelio_P�...Nardi�. Secret�.rv � .w...b� placing a true aiuZ cv��rect eopJ thereof in an envelqpe addressed as followa: Mf. Joseph J . Perkovieh, President � Mr. Aurelio P. P?ardi , Secretary � Glass Bar, Inc. , dba Glass Bar � 299 Maria Avenue St: Paul .M1V. 55106 (ruhich, is the last kn wn� add s Qf said attorney) and depositing � me, urith, a pre a' in the niteil States �nczils at..............�aint �aul.,,__,,,_�„ , ,]{Tin.neao . ...................... ,SzcbscriLed and suorn to before me tliis.._.Ilth_. day o ._.... �.Ll��.'.:.. _..... .. � _......., 1 ....�.�..I.... ....... ` _.. . __..__._..._... .....-•---...... _. .... ...... ... :..:. ........�=--�: ..- --- -....�...� � BELVA J.'LOYD ��F" NOTARYPUBUC-MINNES07A � . - � FlAPlSEY COUNTY . • • MY COMM.EXPIAES APR.8,199'1. x NN' ' tir s. �-:s-�r-- .� ,..-c-,---�+'�-^•�-�Tt '-�,�,'T�. rr,�'�v.'.'�.'�S' _'s-�r t+�r. . -�° .:•�" ^�r'+s"`F:..-pr'r..^s ,;,�ls�� ,•S�.�_"a> '@������ :• y.r .'` .Y �...:« a �-:� >y,Yqc� ...-'�.`�. _�"a�'aL�`»��� �i �'Y'�z3 ��*..7JC�' ���Se"'� 1T.- C. �, „�...e,,., •..tes.��',"�. _ �Tf..�k.�3�.' r� � o- s'�'x °'.�' t��r qs ft'� �.c� �- .':'�f �yr✓s' '"��-�er�' M.'y��4r'Y �F��ss�tL*a'��L� �F'.��'ei.?�y�c,.. y.t - �°_�a f +r-�v ���,-a"; i. �� � ` lcrt,�^Y a- � -�i" ,Yy��•�� � � r� ^. r � ; r�i�,.r �:i �L....���._c� ''x�, .f��--�Y�Y- �-, �.�.:y�'+�� a -.v.i;�" �<� .}�s�.�,�45Y."�.r x`��-'^--i.Lh s.':=�.� `"�',.sn ,,;tr,� + �.. r � '"a ''+ "`,�: � u- � � �� 9 �'�r.�� 's {� "��. g xra`� ���.. � � �' }t -�.�,T- �,ej� - ��..� � -1$����,+ 5Fa';� � � � �� .�y �� R�.'i-����a, � '`_K �'i.�"w s""y'a2 ;� '�'asr�� _ ,y"�;t�`�+h�e-� "'��"",,�y�,y'� '�. .�x-.i; Y ....�t ti �- � � v-.:� ;�✓-�e ��`;:- �r ' � L�;Y `.��.t�. 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",.0 �.._ .. ..- . . .... . . -. ...... . . - _ � f o .r . ``�T7''• CITY OF SAINT PAUL R� 7 O '� ' � ,��������� . OFFICE OF THE CITY t�TTORNEY < 011 111 0 � . V� h� "" JANE A.MC PEAK, CITY ATTORNEY 647 City Hall,Saint Paul,Minnesota 55102 612-298-5121 JAMES SCHEIBEL FAX 612-298-5619 MAYOR RECEIVED Juiy io, 1991 SEP 2 6 1991 .: Mr. Joseph J. Perkovich, President CITY CLERK Mr. Aurelio P. Nardi, Secretary Glass Bar Inc. , dba Glass Bar �� 299 Maria Avenue Saint Paul, Minnesota 55106 NOTICE OF HEARING RE: City of St. Paul vs. Glass Bar Inc. , dba Glass Bar Dear Mr. Perkovich and Mr.Nardi: t --- This is to notify you that a hearing will be held concerning all the licenses held at the premises stated above at the following time, date and place: Date: Auqust 12, 1991 � � Time: 9 a.m. Place: City Hall Annex Room 1503 25 West Fourth Street 5t. Paul, MN 55102 The judge will be an Administrative Law Judge from the State of Minnesota Office of Administrative Hearings: Name: Howard L. Raibel Office of Administrative Hearinqs Fifth Floor, Flour Exchanqe Buildinq . . 310 Fourth Avenue South Minneapolis, MN 55415 Telephone: 341-7608 The Council of the City of Saint Paul has the authority to provide . for hearings concerning licensed premises, and for adverse action against such licenses, under Chapter 310, including sections 310. 05 and 310. 06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non-intaxicating liquor, authority is also conveyed by section 340A.415 of the Minnesota Statutes. ' Adverse action may include revocation, suspension, fines and other penalties or conditions. n ' r `,`��,r �r • � / /i L��C✓ / l/� —��/" / July 10, 1991 � ' Mr. Joseph J. Perkovich, President Mr. Aurelio P. Nardi, Secretary Page two Evidence will be presented to the judge which may lead to adverse action against all the licenses you hold at the above premises' as follows: "On June 20, 1991, at about 6:30 p.m. , an employee of the licensed establishment sold a Miller Lite beer to a minor without checking the age and/or identification of the minor." � You have the right to be represented by an attorney before and during the hearing if you so choose, or you can represent yourself. You may also have a person of your choice represent you, to the extent not prohibited as unauthorized�practice of law. The hearing will be conducted accordance with the requirements of sections 14. 57 to 14 . 62 of the Minnesota Statutes, and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrative Law Judge will have all parties identify themselves for the record. Then the City will present its witnesses and evidence, each of whom the licensee or attorney may cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the city's attorney may cross-examine. The Administrative Law Judge may in addition hear relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding arguments may be made by the parties. Following the hearing, the Judge will prepare Findings of Fact, Conclusions of Law, and a specific recommendation for action to be taken by the City Council. You should bring to the hearing all documents, records and witnesses you will or may need to support your position. Subpoenas may be available to compel the attendance of witnesses or the production of documents in conformity with Minnesota Rules, part 1400.7000. If you think that this matter can be resolved or settled without a formal hearing, please contact or have your attorney contact the • undersigned. If a stipulation or agreement can be reached as to the facts, that stipulation will be presented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. � .. . �. �i - ,� �c � July 10, 1991 � � ' Mr. Joseph J. Perkovich, President Mr. Aurelio P. Nardi, Secretary Page three If you fail to appear at the hearing, the allegations against. you . which have been stated earlier in this notice may be taken as true and your ability to challenge them forfeited. If non-public data is received into evidence at the hearing, it may become public unless objection is made and relief requested under Minnesota Statutes, section 14. 60, subdivision �2 . Very Truly Yours, PHILIP B. BYRNE .� Assistant City Attorney cc: Robert Kessler License Inspector Albert B. Olson City Clerk ` Paige Purcell Off ice of Administrative Hearings Lt. Nancy DiPerna Vice Unit Ms. Susan Omoto Community Organizer Dayton's Bluff Community Council ^� 4 OttT p►• .� •, CITY OF SAINT PAUL p M ; ��n������ ; OFFICE OF THE CITY ATTORNEY. + �o . "'� JANE A.MC PEAK, CITY ATTORNEY 647 City Hail,Saint Paul,Minnesota 55102 612-298-5121 JAMES SCHEIBEL FAx 512-29s-56i9 MAYOR July l, 1991 City of St. Paul v. Glass Bar Inc. _ Mr. Joseph J. Perkovich, President Adm. Law Hearing August 12, 1991 Mr. Aurelio P. Nardi, Secretary citv s Exhibit ��.�— Glass Bar Inc. , dba Glass Bar !� 299 Maria Avenue ' Saint Paul, Minnesota 55106 RE: All Licenses held by Glass Bar Inc. , dba Glass Bar for the premises located at 299 Maria Avenue Dear Mr. Perkovich and Mr. Nardi: I am in receipt of information that could lead to an action against all your licenses. The basis for adverse action is that on: "On June 20, 1991, at about 6:30 p.m. , an employee of the � licensed establishment sold a can of Miller Lite beer to a minor without checking the age and/or identification of the minor." If you do not dispute the allegations or facts, or agree that a violation occurred, but want to have the opportunity to speak to the Council to argue for the lightest possible penalty under all the circumstances, please call me at 298-5121 to work out the procedures. If you contest the allegations or dispute the facts, I will take the necessary steps to schedule a hearing before an independent hearing examiner and provide you with a proper notice of hearing so you will know when and where to appear, and what the basis for the hearing will be. Please respond within ten days. You may be responsible for costs if I schedule a hearing thereafter and you do not appear and/or contest the facts. Very Truly Yours, PHILIP B. BYRNE Assistant City Attorney - cc: Robert Kessler License Inspector Lt. Nancy DiPerna Vice Unit ; � , � �.r:S�j*i ���° ���fi�C�TT O�. � _��'�� .^`.�.:. CITY OF SAINT PAUL � ���������� ; OFFICE OF THE CITY ATTORNEY �+ �� "" JANE A.MC PEAK, CTTY ATTORNEY 647 City Hatl,Saint Paul,Minnesota 55102 612-298-5121 JAMES SCHEIBEL FAx 612-29a-56i9 MAYOR July 9, 1991 Mr. Joseph J. Perkovich, President Mr. Aurelio P. Nardi, Secretary Glass Bar Inc. , dba Glass Bar 299 Maria Avenue -_ Saint Paul, Minnesota 55106 RE: All Licenses held by Glass Bar Inc. , dba Glass Bar for the premises located at 299 Maria Avenue ° Dear Mr. Perkovich and Mr. Nardi: In my letter of July 1, 1991, I erroneously stated that the basis for the action against your licenses was the sale of a can of Miller Lite beer to a minor. When Mr. Perkovich questioned that statement, I checked the police report and found that the police report did not mention a can of beer. The report states that the minor had a "Miller Lite beer" in front of him on the bar. This correction will also appear in the letter setting up the formal hearing on this matter. Very Truly Yours, � PHILIP . BYRNE Assistant City Attorney cc: Robert Kessler License Inspector Lt. Nancy DiPerna Vice Unit � ` , ity o t. au v. ass ar nc. . � — Adm. Law Hearing August 12, 1991 — � City's Exhibit �� 3 .��'�., LICENSES �� �/�$310.05 �,;_j~� tion and follow the procedures for notice and hear- determination that the decision was based on an ing as set forth in Section 310.05. error of law.The�ling of an appeal shall not stay (d) Class III licenses. Upon receipt of a fully the issuance�of the license. completed application and required fees for a Class �Code 1956, § 510.04; Ord.No. 17455, § 1, 5-21-87; Ord.No. 17551, § 1,4-19-88) III license, and after the investigation required, � the inspector shall notify the council. A public hearing shall be held by the council's committee �c. 310.05.. Hearing procedures. designated to hear license matters on the grant, (a) Adverse action; notice and hearing require� issuance or transfer of all Class III licenses. The �ments. In any case where the council may or in- council's committee designated to hear license mat- {�nds to consider any adverse action, including ters may hold a hearing on the renewal of any the revocation or suspension of a license, the im- Class III license. In any case where the inspector position of conditions upon a license,or the denial recommends denial of the grant,issuance,renewal of an application for the grant,issuance,renewal or transfer of a Class III license, or where the or transfer of a license, the applicant or licensee council's committee designated to hear license mat- shall be given notice and an opportunity to be ters believes that evidence might be received at , heard as provided herein. The council may con- the public hearing which might result in action sider such adverse actions when recommended by adverse to the application, the inspector or coun- the inspector, by the director, by the director of cil's committee designated to hear license mat- any executive department established pursuant ters shall follow the procedures for notice and to Chapter 9 of the Charter, by the city attorney hearing as set forth in Section 310.05. Where the or on its own initiative. application for the grant, issuance, renewal or ,����;� transfer of a Class III license meets all the re- tion)is or will be co si ered b W the ouncil ethe ,,..1f.�,�.�� quirements of law,and where there exists no ground Y � ``e`�y' for adverse action,the council shall by resolution applicant or licensee shall have been notified in direct that the inspector issue said license in ac- �'iting that adverse action may be taken against cordance with law. the license or application, and that he or she is entitled to a hearing before action is taken by the (e) Appeal; Class I or Class II licenses. An ap- council. The notice shall be served or mailed a ' peal to the city council may be taken by any reasonable time before the hearing date,and shall person aggrieved by the grant,issuance,renewal state the place,date and time of the hearing.The or transfer of a Class I or Class II license;provid- notice shall state the issues involved or grounds ed,however,that the appeal shall have been filed upon which the adverse action may be sought or with the city clerk within thirty (30) days after based.The council may request that such written the action by the license inspector or director. notice be prepared and served or mailed by the The only grounds for appeal shall be that there inspector or by the city attorney. has been an error of law in the grant, issuance, renewal or transfer of the license. The appeal (c) Heacring. Where there is no dispute as to the shall.be in writing and shall set forth in particu- facts underlying the violation or as to the facts lar the alleged errors of law. The council shall establishing mitigating or aggravating circum- conduct a hearing on the appeal within thirty(30) stances,the hearing shall be held before the coun- days of the date of filing and shall notify the cil. Otherwise the hearing shall be conducted be- licensee and the appellant at least ten (10) days fore a hearing examiner appointed by the council prior to the hearing date. The procedures set forth or retained by contract with the city for that pur- in Section 310.05, insofar as is practicable, shall pose. The applicant or the licensee shall be pro- apply to this hearing.Following the hearing,the vided an opportunity to present evidence and ar- council may affirm or remand the matter to the ��ent as well as meet adverse testimony or inspector or director, or may reverse or place con- evidence by reasonable cross-examination and re- �`` `' ditions upon the license based on the council's buttal evidence.The hearing examiner may in its -,;,-�-- _ _ ,;, � � . Supp.No.8 . 2031 . ` §310.05 LEGISLATIVE CODE .�F''S �. �=� y>F��� discretion permit other interested persons the op- (fl Council a,ction; resolution to contain finding� portunity to present testimony or evidence or oth- Where the council takes adverse action with re- erwise participate in such hearing. spect to a license, licensee or applicant for a li- (c-1) Procedure; hearing examiner. The hearing cense,the resolution by which such action is taken examiner shall hear all evidence as may be pre- shall contain its findings and determination, in- sented on behalf of the city and the applicant or cluding the imposition of conditions, if any. The licensee, and shall present to the council written council may adopt all or part of the findings, con- findings of fact and conclusions of law, together clusions and recommendations of the hearing ex- with a recommendation for adverse action. aminer, and incorporate the same in its resolu- tion taking the adverse action. The council shall consider the evidence contained in the record,the rearing examiner's recommended �� Additional procedures where required Where findings of fact and conclusions, and shall not the provisions of any statute or ordinance require consider any factual testimony not previously sub- additional notice or hearing procedures, such pra mitted to and considered by the hearing examin- visions shall be complied with and shall super- er. After receipt of the hearing examiner's find- �de inconsistent provisions of these chapters.This ings,conclusions, and recommendations,the council shall include,without limitation by reason of this shall provide the applicant or licensee an oppor- spec�c reference, Minnesota Statutes, Chapter tunity to present oral or written arguments alleg- 364 and Minnesota Statutes,Section 340A.415. ing error on the part of the examiner in the appli- (h) Discretion to hear notwithstanding withdrawal cation of the law or interpretation of the facts, or surrender of application or licens� The council � and to present argument related to the recom- may, at its discretion, conduct a hearing or direct mended adverse action. Upon conclusion of that that a hearing be held regarding revocation or hearing, and after considering the record,the ex- denial of a license, notwithstanding that the ap- �_.,,'..':�;;t:; aminer's findings and recommendations, together plicant or licensee has attemp�ed or purported to L �'� with such additional arguments presented at the withdraw or surrender said license or application, hearing,the council shall determine what,if any, if the attempted withdrawal or surrender took adverse action shall be taken, which action shall place after the applicant or licensee had been be by resolution.The council may accept,reject or not�ed of the hearing and potential adverse action. modify the �ndings, conclusions and recommen- dations of the hearing examiner. (i) Continuances. Where a hearing for the pur- pose of considering revocation or suspension of a (c-2) Ex-parte contacts. If a license matter has license or other disciplinary action involving a been scheduled for an adverse hearing, council license has been scheduled before the council, a members shall not discuss the license matter with continuation of the hearing may be granted by each other or with any of the parties or interested the council president or by the council at the persons involved in the matter unless such dis- request of the licensee, license applicant, an in- cussion occurs on the record during the hearings terested person or an attorney representing the of the matter or during the council's final delib- foregoing, upon a showing of good cause by the erations of the matter. party making the request. (d) Licensee or applicant may be represented ' (Code 1956, § 510.05; Ord. No. 17551, § 2, 4-19-88; The licensee or applicant may represent himself Ord.No. 17559, §§ 1,2,5-17-88;Ord.No. 17659, § or choose to be represented by another. 1, 6-13-89) (e) Recorc�evidence. The hearing examiner shall Sec. 310.06. Revocation; suspension; adverse receive and keep a record of such proceedings, actions;imposition of conditions. including testimony and exhibits, and shall re- ceive and give weight to evidence, including hear- (a) Council may take adverse action. The coun- say evidence, which possesses probative value com- cil is authorized to take adverse action,as defined monly accepted by reasonable and prudent per- in Section 310.01 above, against any license or sons in the conduct of their affairs. permit, licensee or applicant for a license, as pro- F _ � Supp.No.8 �-- 2032 � . . . �/- �i� � ;�?;;-, LICENSES $310.06 J,_,.�,,, - -:�:_�a F 1f�.5�`r'.�;�:�r" '...,�, ��i'�. ��.�.� ' vided in and by these chapters.Such actions shall formed his work or activity in an unsafe be initiated and carried out in accordance with manner. the procedures outlined in Section 310.05. (8) The licensed business,or the way in which (b) Basis for action..Such adverse action. may said business is operated, maintains or per- be based on one or more of the folTowing reasons;.; mits conditions t�ia�:un�easonably annoy, which are in addition to any other reason�specifi- injure or endanger the safety,liealth,mor- cally provided by law or in these chapters: als, comfort or repose of any considerable (1) The license or permit was procured by mis- number of inembers of the public. representation of material facts, by fraud, � (9) Failure to keep sidewalks or pedestrian ways by deceit or by bad faith. reasonably free of snow and ice as required (2) The applicant or one acting in his behalf under Chapter 114 of the Saint Paul Legis- made oral or written misstatements or mis- lative Code. representations of material facts in or ac- (10) The licensee or applicant has shown by past companying the application. misconduct, unfair acts or dealings, or by (3) The license was issued in violation of any _ the frequent abuse of alcohol or other drugs, of the provisions of the Saint Paul Zoning that such licensee or applicant is not a per- Code. son of the good moral character or fitness required to engage in a licensed activity, (4) The license or permit was issued in viola- business or profession. tion of law, without authority, or under a (c) Imposition of reasonable conditions and/or material mistake of fact. restrictions. When a reasonable basis is found to ` ���"����� (5) The licensee or applicant has failed to com- impose reasonable conditions and/or restrictions fa:�. f1 � �'��� ply with any condition set forth in the li- upon a license issued or held under these chap- `��``��Y cense, or set forth in the resolution grant- ters, any one or more such reasonable conditions ing or renewing the license. and/or restrictions may be imposed upon such li- (6) (i) The licensee or applicant (or any per- cense for the purpose of promoting public health, son whose conduct may by law be im- safety and welfare,of advancing the public peace puted to the licensee or applicant)has and the elimination of conditions or actions that violated,or performed any act which is constitute a nuisance or a detriment to the peace- a violation of, any of the provisions of ful enjoyment of urban life,or promoting security these chapters or of any.statute, ordi- and safety in nearby neighborhoods. Such reason- nance or regulation reasonably related able conditions and/or restrictions may include or to the licensed activity, regardless of Pertain to,but are not limited to: whether criminal charges have or have (1) A limitation on the hours of operation of not been brought in connection there- the licensed business or establishment, or with. on particular types of activities conducted (ii) The licensee or applicant has been con- in or on said business or establishment; victed of a crime that may disqualify said applicant from holding the license �2) A limitation or restriction as to the loca- in question under the standards and tion within the licensed business or estab- procedures in Minnesota Statutes,Chap- lishment whose[sic]particular type of activ- ter 364. ities may be conducted; (7) The activities of the licensee in the licensed �3) A limitation as to the means of ingress or activity create or have created a serious egress from the licensed establishment or danger to the public health, safety or wel- its parking lot or immediately adjacent area; fare, or the licensee performs or has per- :', �� �'' Supp.No.8 2032.1 � _ � . $310.06 LEGISLATIVE CODE 1��:'y�=. ;x .�:� -�:�,:� (4) A requirement to provide off-street park- acts or omissions of agents, brokers, employees, ing in excess of other requirements of law; attorneys or any other persons as a defense or (5) A limitation on the manner and means of Justification for failure to comply with such filing advertising the operation or merchandise and maintenance requirements. In the event the licensee reinstates and files such policies, depos- of the licensed establishment; its,bonds or certifications within thirty(30)days, (6) Any other reasonable condition or restric- tion limiting the operation of the licensed business or establishment to ensure that � the business or establishment will harmo- nize with the character of the area in which it is located, or to prevent the development or continuation of a nuisance. The inspector may impose such conditions on Class I licenses with the consent of the licenseholder,or may recommend the imposition of such conditions as an adverse action against the license or licen- � ses;the director has the same power with respect to Class II licenses. The council may impose such conditions on Class III licenses with the consent of the licenseholder, or upon any class of license , as an adverse action against the license or licen- ses following notice and hearing as may be re- `''�"'�� ��"'�y; quired. Such conditions may be imposed on a li- '�� �� .., cense or licenses upon issuance,renewal or transfer �'t��=�' thereof,or upon and as part of any adverse action against a license or licenses,including suspension. (Code 1956, § 510.06; Ord. No. 17584, § 1, 8-25-88; Ord.No. 17657, § 15, 6-8-89; Ord. No. 17659, § 2, 6-13-89) Sec. 310.07. Termination of licenses; surety bonds;insurance contracts. � � (a) Automatic termination, reinstatement; re- sponsibility of licensee All licenses or permits which must,by the provisions of these chapters or other ordinances or laws, be accompanied by the filing and maintenance of insurance policies, deposits, guarantees, bonds or certifications shall automati- cally terminate on cancellation or withdrawal of said policies, deposits, bonds or certifications. No licensee may continue to operate or perform the licensed activity after such termination. The li- censee is liable and responsible for the f"iling and maintenance of such policies,deposits, guarantees, bonds or certifications as are required in these chapters, and shall not be entitled to assert the Supp.No.8 ._._. 20322 � , , _ City of St. Paul v. Glass Bar Inc. - Adm. Law Hearing Augu t 12, 1991 Ci�y's Exhibit �� S_ §409.08 LEGISLATIVE CODE r �� Sec. 409.08. Regulations generally. � All licensees hereunder are hereby required to observe the following regulations; provided,how- ever that any such regulation which specifically refers to an on-sale licensee shall not bind an off-sale licensee, nor shall any regulation which specifically refers to an off-sale licensee bind an • on-sale licensee: r (1) All sales shall be made in full view of the ' public. -::;:t: ;� ,Y :;{ ��� � `..,'y".� � 4;� Supp.No.14 _.. - 2178.2 l §409.08 LEGISLATNE CODE {'^�`�� _ ��_: -�'�i (8) The license issued to said licensee shall be tional off-street parking shalI'be required posted in a conspicuous place in that por- if the number of additional spaces re- tion of the premises for which the license quired is five(5)or fewer spaces. has been issued. c. Expansion of licensed area, off-street (9) No person shall remain in or loiter in the parking at the same rate as transfer or parking lot of an on-sale licensee after the new issuance to an existing structure lawful closing hour. not previously licensed for on-sale pur- poses, plus twenty-five (25) percent of (10) When a licensee is notified by the police any parking shortfall for the existing department that a parade will be held within � licensed area. "Parking shortfall" shall one block of_the licensee's establishment, mean the difference between one space all beer and all intoxicating liquor or liq- for each forty-five (45) square feet of uid of any type sold during the entire day of said arade shall be sold onl patron floor area for the existing licensed p y in plastic ���nus the number of parking spaces or paper containers. In addition, upon re- actually provided for that area. ceiving such.notice,the licensee shall place d. "Patron area" shall mean to include a person at each entrance and each exit of _ all areas used by the public, and ex- the establishment at least one hour prior cludes all areas used exclusively by em- to the time oP parade, and the licensee shall ployees for work,storage or ofT'ice space. require a person to remain at those loca- e. Modification of parking requirements: tions until one hour after the parade, to 1. The council may modify the off- ensure that patrons do not _enter or exit street parking requirements con- with beer or intoxicating liquor. tained in this section upon appli- ' > cation made for that purpose and �t~�c (11) There shall be provided in all zoning dis- u-� ' A�#' upon findings made by the council � tricts, other than B-4 or B-5 Districts, off- that granting of such modification street parking spaces for all on-sale prem- would not have a substantial det- ises as provided herein: rimental impact on the surround- a. Transfer or new issuance to a struc- ing neighborhood. Modification, if ture newly constructed for that purpose, granted, shall be by resolution off=street parking at the rate of one adopted by at least five (5) �r- space for each forty-five(45)square feet mative votes. of patron area. 2. The council shall consider the ap- b. Transfer or new issuance to an exist- plication at a public�hearing fol- in� structure not previously licensed lowing tnailed notice thereof to prop- for on-sale purposes during the twenty- erty owners within three hundred four (24) months preceding thc appli- fifty (350) feet of the proposed li- cation, off-street parking at the rate of censed premises. The council may one space for each forty-five (45)square require,by resolution,the payment feet of licensed patron area minus the of an administrative prceessing fee number of off-street parking spaces for parking modi�cation applica- which would be required for the previ- tions. Applications and fees shall ous use of' the same area under the be made to the license inspector. existing zoning code provisions. Cxist- 3. In granting any modification, the ing parking which previously served council may attach reasonable con- the same area shall not be counted to ditions regarding the lceation, de- meet the requirements unless any are sign, character and other features in excess of what would have been re- of the licensed structure and park- quired for the previous use. No addi- ing area deemed nec.essary for the � + � :; Supp.No.8 . ,:•y 2180 . _, . .._ _., ._.::_. - - __ ,_. . ... - . , - . , .: _ . .___ - - ,_ :. . _ , . : _ ,... , � "X�-'�' LICENSES §409.08 •<..:e:�2T�:�� ..�'p•..:J;+'.:'F. h��.�3:°.*,:;t.'T"� . •fP 4S'"•��� `�'ta+j. (2) A "minor," as used herein, is any person waiters or waitresses at a restaurant,hotel under the age of twenty-one(21)years. or motel where only wine is sold;provided, a. No licensee,or agent or employee thereof, that the person under the age of eighteen shall serve or dispense upon the licensed (18)may not serve or sell any wine. premises any intoxicating liquor to any (5) Every licensee is hereby made responsible minor; nor shall such licensee, agent for the conduct of his place of business and or employee permit any minor to be required to maintain order and sobriety in furnished with or to consume any such such place of business. liquor on the licensed premises; nor j shall such licensee, agent or employee (6) No licensee shall keep, possess or operate, permit any minor to be delivered any or permit the keeping,possession o:opera- such liquor. tion of,on any licensed premises or in any b. No minor shall misrepresent his or her room adjoining the licensed premises any age for the purpose of obtaining intox- slot machine, dice or any gambling device icating liquor nor shall he or she enter or apparatus, nor permit any gambling any premises licensed for the retail sale �erein(whether or not licensed by the state), of intoxicating liquor for the purpose - nor permit the licensed premises or any of purchasing or having served or de- room in the same or in any adjoining build- livered to him or her for consumption ing directly or indirectly under his controi of any such intoxicating liquor or beer to be used as a resort for prostitutes or nor shall any such person purchase, other disorderly persons, except that pull- attempt to purchase,consume,or have tabs and tip-boards may be sold on licensed }'`"��'�- another person purchase for him or her premises when such activity is licensed by �"<� g the state ursuant to Minnesota Statutes, � -��-A' any intoxicating liquor or beer. P ``':��;,�� '"�=-�� c. No minor shall induce any person to Chapter 349, and conducted pursuant to purchase, procure or obtain intoxicat- . regulations contained in this Legislative ing liquor for him or her. Code. This exception shall not apply to es- d. Proof of age for purposes of consuming, tablishments licensed by the city for the purchasing or possessing an alcoholic sale of nonintoxicating malt beverages,non- beverage, the consumption, sale or pos- intoxicating malt beverages and wine, and session of which is regulated by age,. nonintoxicating malt beverages and wine may only be established by a valid as menu items only. driver's license or a Minnesota Identi-, Notwithstanding other provisions of this �cation Card issued pursuant to Min- Legislative Code to the contrary, the coun- nesota Statutes, Section 171.07, or, in cil may permit an on-sale licensee to per- the case of a foreign national, by a mit the holding of a single event,such as a valid passport. banquet, that includes the sale of raffle (3) No sale shall be made in any place or in tickets as a part of the event activity; pro- part of a building where such sales are vided, that such events are separate from prohibited by state law or this chapter. the public areas of the licensed establish- ment, nor open to the general public, and (4) No person under eighteen (18)years of age the raffle conducted by a charitable orga- may be employed in a place where intoxi- � nization licensed by the State of Minnesol.a. cating liquor is sold for consumption on the (�) No dancing wherein the public participates, premises,except persons under eighteen(181 and no dancing, singing or other vaudeville years of age may be employed as musicians exhibitions or entertainment shall be per- or in bussing or washing dishes in a res- mitted on the premises of any on-sale li- --�::_;,, taurant or hotel th�t is licensed to sell in- ���]�such premises are duly licensed ���' toxicating liquor and may be employed as for entertainment. .:�:;<_. _ �''�',' Supp.No.8 2179 � �="� LICENSES $ 409.09 � .r�_;•�;, `=��; �.�;�<i; F��f�;.�.;;�.;;''. ,,,.d protection of the adjacent neigh- to prevent persons from leaving the licensed borhood. premises with a bottle, can or glass con- 4. Off-street modif`ications shall remain taining any alcoholic beverage, and the fail- with licensed premises so long as ure to do so may subject such licensee to the characteristics of the licensed adverse action against his or her license. establishment remain unaltered. In (17) No person, group or association applying the event parking problems arise, for or holding a license under this chapter the council may consider taking shall restrict membership in its club or or- adverse action pursuant to the pro- ganization,or restrict access to the licensed cedures set forth in Chapter 310 of � premises or any facilities of such person, this Code. Such adverse action may group or association, on the basis of race, include requiring the licensee to creed, religion, sex, national origin or an- do one or more of the following: cestry, age, disability, marital status or (i) Provide more off-street parking; status with respect to public assistance.This (ii) Produce the usable floor space; provision shall not apply to any religious (iii) Reduce patron capacity (seat- corporation, association or society with re- ing or bar area). spect to membership or access based on re- (12) When an existing building is converted to ligion, where religion is a bona fide quali- on-sale intoxicating liquor purposes, exist- fication for membership or access. A ing off-street parking facilities which serve violation of the foregoing shall constitute the building shall be provided with a vi- sufficient grounds for adverse action against � sual screen where the parking facility ad- • the license or license application,including 2 K.�.;, joins or abuts across an alley any residen- revocation or denial of the license. Q� v� tial use or residential zonin district. The (Code 1956, § 30823(1)—(10); Ord. No. 17015, ���; g `�� screen shall be between four and one-half 4-28-83; Ord. No. 17043, 8-9-83; Ord. No. 17173, a��,�,, (4�i)and six and one-half(6'/2)feet in height 10-23-84; Ord. No. 17321, § 2, 12-31-85; Ord. No. and of suff`icient density to visually sepa- 17368, § 1, 6-24-86; Ord. No. 17436, § 1, 2-24-87; rate the parking facility from the adjacent Ord.No. 17460, § 1,5-28-87;Ord.No. 17473, §§ 1, residential use district.The screen may con- 2,7-7-87;Ord.No. 17657, §§ 8,2,6-8-89; Ord. No. sist of various fence materials,earth berms, 17676, § 3, 8-24-89; Ord. No. 17705, § 2, 1-16-90) plant materials or a combination thereof. Access by patrons to the parking facility Sec. 409.09. Certain sexual conduct prohibited. from an adjacent alley should generally be �e following acts or conduct on licensed prem- prohibited. ises are unlawful and shall be punished as pro- (13) No person shall give, sell, procure or pur- vided by Section 1.05 of the Saint Paul Legisla- • chase intoxicating liquor to or for any per- tive Code: son to whom the sale of intoxicating liquor �1) To employ or use any person in the sale or is forbidden by law. service of alcoholic beverages in or upon (14) No person shall mix or prepare intoxicat- the licensed premises while such person is ing liquor for consumption, or consume it, unclothed or in such attire,costume or cloth- in any public place not licensed in accord- ing as to expose to view any portion of the ance with this Code and the State of Min- female breast below the top of the areola or nesota. of any portion of the pubic hair, anus, cleft (15) No intoxicating liquor shall be sold or con- of the buttocks,wlva or genitals. sumed on a public highway or in an auto- mobile. ��__.,,.*„ (16) Each on-sale licensee shall have the responsi- .. blity of taking reasonable and adequate steps G.. � , ; e�;..•;: ''_i Supp.No.ll `�c._:�' 2180.1 � .:':�j `,.; ,�; .:.�i``��:; a���. 'Yr��. S:i.^'�:?`-�t-a.`� I^.i ',��J. 4;=' 4 �: w � � � � � y� h � • C w = y y � • �� • � • U .-� � : " ; W � � a °, � a �:� _ � ❑ . n o, � ��..(( � `\` W W O � � � �-I ; x �to ¢ ; N o g „ ` x b � � � � � J • r Z U • Ul QI Y�I I � �. < > r z y' � (V u1 1..i o a ` o = � 6 3 0 � � F'� W N � �� � � a = t ` a � 0 F � C. � � � �� /T jj 2 V l F 2 Y y � ►y � � � � � . .^� _. 1 j W U < � d � N ''1 � � bD•rl e� � �. :. � \J U ; ❑ � � Y � � � .� �. 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'y � � �' � � .� � � �U (� Q�+� ¢ � ��\ ; ` � � r x Z Y � U-I � S-I R� ++ � ? 4l O W � � J N w '� � � ° � < Z i e z c � � d _� .� o O W 0 � � � W � � ; � •� +�7 3 0 � w Z � u' • �;� o ; W F = � •� +► �n n f— ' 0 ,r J � 0 U Y r3 � � L." 0 „U , < W 3 ,� � �i � � 'L� O W ,�, ` „ O o � ' � �}{( a .. . ,p J O Z ` •� � 1U �F�' `Q � +7 U O . W. u i u i � � w m � 2 � U J = M � � � � � � � O ¢� 0 4 G � � � � � � � q�;�, j m ( _ �''� 'C� � d a W � •e-Uj N � �( .�r.yr �'I O � �t A I u i J h 4 j/ .+-. N � � 4 W m W � � d. a' ,� � ^ „ � � s.�-1 ?' � �O p N h � � � � :� < g o ` +' z`� � ,� � � '� � m � � � .�N � 4a � � O � � W � i � o � Q � ? � '� o `_' 4 � N � Va �� � u U � � � W � '� � W � " � 1�^-,� � � O '� .. . W � ` O U W W [ W W W � � � J a � m u � N �H � � _ W Q O J I � O M � �„� > > O l J � '' '" O � � � ��+ O Y�� IJ Q � V u W � � ['7 �.i ,� � � f.�,. �^ Q G� Z j W Z > < (� � •^� .� W r�r � V � V� � � ++ � �'I I� � O a � u F a W ••-I Q, �-I Sa �J � r I � i u F- n U�1 A � U1 N � c i � Q .. � fA N N � t�ll � () � �� � r � r a � >• u o W Q i .i � � N � � .S�-1 M � _ d c�,j o u o Z � � 41 N a } I V • e�i wi v _ � � � � �+ � � N N i . ni o� ... .. . , GLASS BAR INC • ri- 299 Maria Av-5510b�� " " �C� 8�8��1 dba Glass Bar ID# 8364316 I hereby certify that this pn Sale Liquor -� 15743 1-31-88 is a true and exact copy Sunday Liquor 15743 1-31-88 of �the records of .tfie License .& .Peru��t D.ivision � �e Zi1'�� 15743 1-31-89 � ' of. the �ity of-��aint. Paul_ S��Y ��r 15743 1 31-89 for Glass Bar Inc. DBA On Sale Liquor-C 15743 1-31-90 Glass Bar at 299 Maria Ave. Sunday Liquor 15743 1-31-90 On Sale Liquor-C 15743 1-31-91 Sunday Liquor 15743 1-31-91 ������ On Sale Liquor-C 15743 4-30-92 Sunday Liqour 15743 4-30-92 J t Odalen �'"��'� �� fice Manager _ ; _ . .. _ _ , . .. _ . . � �. 9-.�'� .._. orr saL� LzQ . Date Glass Bar, lncorporated �'resident-Tr. Joseph �. Perkovich - �ec. �lurelio P. Nardi Stock Joseph J. Perkovich �'��.�� - � . �� �"_ �� . , �a� aws�roa�ro �� M�Camn�iWon E�Mr.21,1�7 M - _ 299 Maria Ave. 55106 ID#8364316 , . .. <: ' Joseph J Per ovich dba Glass ar 2-Cigarette 99571 3-31-91 1 I-VM 99571 3-31-91 `�� Joseph J Perkovich dba Glass Bar 1 Cigarette 99571 3-31-92 1 Fd VM 99571 3-31-92 °��`_' Glass Bar, Inc dba Glass BAr Restaurant(B) 15743 4-30-92 Off Sale Malt 15743 4-30-92 ������4"' "� ::�r r + � ' ity o t. au v. ass ar nc. _ — Adm. Law Hearing August 12, 1991 City's Exhibit �k �P . � ,.,.�,+.;-;,,.. :t-�t,5�' .�'fk 9 M '�*:�1a3;, '� »'-��t 4.A`,' u�.,� 3, ,,, �: :}, . . ... . .... . .. . ..._... .. . �.�.�.. - . � � .�.� . . . . . . . ... . ..__.... �.y � . 1-y�, � f"'I � N � Q1 � � � . . ' . •ri � O� r-I Ol w � b4 N � �'� � Q� .--1 iJ , � 3 'U ? �+ r'' M a�+ o� G � O o�o M rl � rl b�� � � � � � p � ""' �!'''� � J U i � .7r P7 M �N � -'-� � A.rl V M +-' N � � � c�dK' v� '"i � '"� �o�iv� a � a�i orn �w oa� rn � � � ° N �E�"'.,, � �X � �p (�� y �p � � a�i G aiM �Q W ^� � � � M � � , . �W V �( Cj �S �4a •.� � G� � i .-� U q c� �7 W � � C O ..o �1, � � �w U1 w v,.r+ o b a�'o .V af ,-i as oa eo !, � N � `j' ��-1 W �a � � v�i � tn a � r"i E-� O+ v�i � [-�i a� �„�', E j� � O'rn �'�' S'�' � v y�� o � C � W CJ� � W � Y�+ � � c�C �C ;,a � +�'� � rn � rn'r�.,'°�r' +' � �> ',�'� v � o .�.i �^'`"''- � a „�,a W _ � o �� b �a �� �wO�° a,� °> .�'� ai ,-�i � � � a r`�i '�^ � a °°� � p� •�'�¢^u N-i w � .d ,� .a en �o a N o�a a,�'+ �''� a c� .. M''d � � � h M pp �,,,,� rl O � N ,-a � N � � �l �-'{oo v� +� v oo a� ao � a m'� a°, � O co O1 � a, O � �j �-1� �� � C. � �M t� tA'S7 �' � •�� � � � p �j �l �7 tC N � � ra r-i 411 r--I � � � � .� y ' � CG .-� � � V e-1 �k� � , 00 \O � •n Cp -ir ,� �"q �--� , . • . . %/-� i� � §409.25 LEGISLATNE CODE , (1) The name, address and purpose of the or- director may require the inspector to issue such ganization, together with the names and license before receiving any recommendations on addresses of its officers. the application therefor if necessary to issue such (2) The purpose for which the temporary license license on a timely basis. is sought, together with the place, dates (Ord.No. 17459, § 1,5-28-87;Ord.No. 17569, § 4, and hours during which wine or intoxicat- 6-7�88� ing liquor will be sold. Sec. 409.26. Intoxicating liquor;nonintoxicat- (3) Consent of the�owner or manager of the ing malt liquor;preswnptive pen- premises, or person or group with lawful , alties. responsibility for the premises. (a) Purpose. The purpose of this section is to (4) Evidence that the applicant has obtained establish a standard by which the city council and has in force a bond in accordance with determines the length of license suspensions and Section 409.06(j),and liability insurance in the propriety of revceations,and shall apply to all accordance with Minnesota Statutes 1986, on-sale and off-sale licensed premises for aoth Section 340A.409, intogicating liquor under this chapter and nonin- toxicating liquor under Chapter 410. These pen- (d) Application of other prouisions of this cha�r alties are presumed to be appropriate for every ter. No other provisions of this chapter shall apply case; however the council may deviate therefrom to licenses granted under this section,except Sec- in an individual case where the council finds and tions 409.06, 409.07, 409.08 (except clauses (11) determines that there exist substantial and com- � and(12)), and Sections 409.09 through 409.14. pelling reasons making it more appropriate to do (e) Class II license. Notwithstanding any other so.When deviating from these standards the coun- provision of law to the contrary, the temporary cil shall provide written reasons that specify why wine and liquor licenses provided in this section the penalty selected was more appropriate. shall be administered as a Class II license, and (b) Presumptive penalties for violations. Adverse subject to the provisions of these chapters govern- penalties for convictions 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): Appearance 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 ftevocation 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 LICENSES 4 409.26 Appea,rance Type of Violation Ist 2nd 3rd 4th (7) R,efusal to allow city inspectors or police 5 15 Revocation NA admission to inspect premises. (8) IIlegal gambling on premises. 3 6 18 Revocation (9) Fail to take reasonable steps to stop per- 2 4 12 �tevceation son from leaving premises with alcoholic beverage. (10) Failure to make application for license re- 3 6 18 Revocation newal prior to license expiration date. (11) Sale of intoxicating liquor where only li- 3 6 18 Revocation cense is for nonintoxicating liquor. (12) Failure to comply with statutory, and or- 10 R.evocation NA NA dinance requirements for liability insur- ance. For thbse violations which occur in on-sale in- cedures act up to and including the formal notice toxicating liquor establishments, listed above in of hearing.Tlie council in that case ahall consider numbers (4), (5), (6), (8), (9) and (11), the council the presumptive penaltq for each such violation may in its discretion impose a fine in lieu of a under the "lst Appearance" column in paragraph suspension on the first appearance,in accordance (b) above. The occurrence of multiple violations with the following schedule whose amounts are shall be grounds for departure from such penal- presumptively appropriate: ties in the council's discretion. Seating capacity 0-99 .... . . .. . ... $ 500.00 Violations occurring after the date of the notice Seating capacity 100-149 ...... ... 1,000.00 of hearing that are brought to the attention of the Seating capacity 150-199 ........ . 1,500.00 city attorney prior to the hearing date before an Seating capacity over 200 ......... 2,000.00 administrative law judge(or before the council in For those violations which occur in off-sale in- an uncontested facts hearing) may be added to toxicating liquor establishments listed above in the notice(s)by stipulation if the licensee admits numbers (4), (5), (6), (8), (9) and (11), the council to the facts, and shall in that case be treated as may in its discretion impose a fine in lieu of a though part of the"lat Appearance." In all other suspension on the first appearance,in accordance cases, violations occurring after the date of the with the following schedule, whose amounts are formal notice of hearing shall be the subject of a presumptively appropriate, based on the square separate proceeding and dealt with as a "2nd footage of the retail area of the establishment: Appearance"before the council. 2,000 square feet or less.... . . ... $ 500.00 The same procedures 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 (� Subsequent a,ppearanc;�s. Upon 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 licensee,the council shall impose the pre- pearance before the city council,the council shall S�Ptive penalty for the violation or violations consider and act upon all the violations that have �ving rise to the subsequent appearance without been alleged and/or incorporated in the notices regard to the particular violation or violations sent to the licensee under the administrative pro- �at were the subject of the first or prior appearance. Supp.No.13 2196.1 . - , . $ 409.26 LEGISLATNE CODE � (e) Computation of time or impose a civil fine not to exceed two thousand (1) If a licensee appears before the council for dollars ($2,000.00), to impose conditions or take any violation in paragraph (b) where that any other adverse action in accordance with law, violation has occurred within eighteen(18) Provided,that the license holder has been afforded calendar months after the first appearance an opportunity for a hearing in the manner pro- vided for in Section 320.05 of this Code. of the same licensee for a violation listed in paragraph(b)above,the current appearance (g) Effect of responsible business practices in shall be treated as a second appearance for determining penalty. In determining the appro- the purpose of determining the presump- �priate penalty,the council may, in its discretion, tive penalty. consider evidence submitted to it in the case of (2) If a licensee has appeared before the coun- uncontested adverse actions or submitted to a hear- cil on two (2) previous occasions, both for ing examiner in a contested hearing upon which violations listed in paragraph(b)above,and �ndings of fact have been made that a licensee if said licensee again appears before the has followed or is likely to follow in the future responsible business practices in regard to sales council for a violation listed in said para- to intoxicated persons and sales to minors. graph (b), and if the current violation oa curred within thirty (30) calendar months (1)� For the purposes of service to intoxicated of the violation that gave rise to the first persons, evidence of responsible business appearance before the council,then the cur- practices may include,but is not limited to, rent appearance shall be treated as a third those policies,prceedures and actions that appearance for the purpose of determining are implemented at time of service and that: presumptive penalty. a. Encourage persons not to become in- (3) ff a licensee has appeared before the coun- toxicated if they consume alcoholic bev- cil on three (3)previous occasions, each for erages on the defendant's premises; violations listed in paragraph(b)above, and b. Promote availability of nonalcoholic bev- if said licensee again appears before the erages and food; council for a violation listed in paragraph c. Promote safe transportation alternatives (b) above, and if the current violation oc- other than driving while intoxicated; curred within forty-eight(48)calendar months d. Prohibit employees and agents of de- of the violation that gave rise to the first fendant from consuming alcoholic bev- appearance, then the current appearance erages while acting in their capacity shall be treated as a fourth appearance for as employee or agent; the purpose of determining the presump- e. Establish promotions and marketing tive penalty. efforts that publicize responsible busi- ness practices to the defendant's cus- (4) Any appearance not covered by subsections ��ers and community; (1),(2)or(3)above shall be treated as a first f. Implement comprehensive training appearance. In case of multiple violations procedures; in any appearance, the date to be used to g, Maintain an adequate,trained number measure whether eighteen (18), thirty (30) of employees and agents for the type or forty-eight(48)months has elapsed shall and size of defendant's business; be the date of the violation last in time at h. Establish a standardized method for the first appearance, and the date of the hiring qualified employees; and violation first in time at any subsequent i. Reprimand employees who violate em- appearance. ployer policies and procedures. (fl Other penalties. Nothing in this section shall �2) For the purposes of service to minors, evi- restrict or limit the authority of the council to dence of responsible business practices may suspend up to sixty (60) days,revoke the license, Supp.No.13 2196.2 , • . y,_�,� , LICENSES § 410.03 include, but is not limited to, those listed (e) No off-sale license shall be issued for any in subsection(1)and the following: place where nonintoxicating malt beverages shall a. Management policies that are imple- be sold for consumption on the premises. mented at the time of service and that (fj "Nonintoxicating malt liquor" is any fer- ensure the examination of proof of iden- mented malt liquor, potable as a beverage, con- tification (as established by state law) taining not less than one-half of one percent(�of for all persons seeking service of alco- 1%) alcohol by volume nor more than three and holic beverages who may reasonably two-tenths(3.2)percent alcohol by weight. be suspected to be minors; (Code 1956, §§ 310.01, 310.17, 310.20; Ord. No. b. Comprehensive training of employees 17676, § 8,8-24-89) who are responsible for such examina- tion regarding the detection of false or Sec. 410.02. Fees. � altered identification. (Ord. No. 17556, § 1, 4-28-86; Ord. No. 17657, § Before the filing of an application for either of 14, 6-8-89; Ord. No. 17675, § 1, 8-22-89; Ord. No. the licenses hereinbefore provided for, the appli- 17694, § 2, 11-7-89; Ord. No. 17756, § 1, 8-7-90) cant shall deposit with the license inspector the sum of two hundred fifty dollars ($250.00) if the application is for an on-sale license, and the sum Chapter 410.Nonintoxicating Malt Liquor* of�fty dollars($50.00)if the application is for an off-sale license,and the inspector shall thereupon Sec. 410.01. License required; definitions; deliver to such applicant duplicate receipts there- exceptions. for, containing a statement of the purpose for (a) No person shall sell nonintoxicating malt �'hich such deposit was made, and one of said receipts shall be attached to and filed with said liquors at retail in Saint Paul without a license. application. (b) On-sale licenses shall permit the licensee (Code 1956, § 310.03; 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. Licensing requirements. sale licenses shall be granted only to restaurants, (a) Application. Any person desiring either of hotels,bona fide clubs, establishments for the ex- the licenses as hereinbefore described shall first clusive sale of nonintoxicating malt beverages and make an application therefor to the council of the establishments licensed for the exclusive sale of City of Saint Paul by �ling with the inspector of intoxicating liquors. The term "bona �de clubs" ' said city for presentation by him to the council of shall include private clubs formerly licensed under an application in writing therefor, which said ap- Chapter 404 of this Code so long as they meet the plication shall set forth with reasonable accuracy requirements of Minnesota Statutes, Section the name and place of residence of the applicant; 340A.101,subsection 7, the exact location of the place at which the appli- (c) Off-sale licenses shall permit the licensee of cant proposes to 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 time previous to the date thereof ises only. been engaged in said business or in the business (d) Nothing herein contained shall be construed of selling foodstuffs in the City of Saint Paul, and to rohibit the sale and delive if so, when and where. Said application shall be p ry in original pack- signed by the applicant in person or by an officer ages directly to the consumer by the manufac- of the club seeking said license or by an officer of turer or distributor of nonintoxicating malt liquors. the corporation seeking said license, and when •Croas references—Liquor and beer regulations general- received by the inspector shall be by him placed ly,Title XXIV;intoxicating liquor,Ch.409;uae of beer and on file, and the name of the applicant shall be by intoxicating tiquor prohibited in motion picture drive-in thea- him registered in a book of registration to be kept tres,§416.06(b). Supp.No.13 2196.3 �'x A1.� . �Ii -� i� i CONTESTEO CASE HEARING AGENDA ANO 6UIDELINES This hearin9 1s being conducted by an oDjective Administrative �aw Heais appointed and employed by the State Office of Adminlstrative Hearin9s. not an employee of the agency that will be deciding this contested matter and Aas not dlscussed the merits of any Questions involved with elther the agency or with any other interested partles. unless there has been a prehearlHe conference where all parties had notice and an opportu�ity to particlpate. will strlve to conduct an impartial, even-handed Aearing 1n a falr and expedltious fashion. After the hearing. he/she will weiyh the evldence and arguments without any predisposition to elther accept or re�ect the proposed agency action in preparing findings of fact. co�clusions and recommendatlons to the agency. The agency will then make its decision after waiting at least 10 days. during which time the findings of fact and recortmendations will be available to affected persons. Smoking is prohibited in the hearing room. . I. A6ENDA . 1 . Hearing Convened by Administrative LaW Judge 2. Explanation of Procedure _ _ _ ' _ �-"_ a j`3, :APPearances Nofe� 'an.ihe Record ...:_ - -' `- _ . _ _ � _ : . - -_- _ _ -__ - :_ __ - _- -- . _ - . -_ _ _ _ - - _ . _ _ �. . : ; . : : . - . � - 4. Introduction of�Jurisdictionai Oocuments ' � � � 5. Presentation by Agency or Other Initiating Party 6. Respondents' Presentation 7. Presentations or Statements by Non-parties S. Hearing Closed by Administrative Laa Judge If any person is peculiarly inconvenienced by the above agenda. such as having to get back to his employment or whatever, he should indicate this to the Administrative Law Judge who will consider suspending the agenda to accomnodate such special circumstances. II. 6UIOELINES 1 . The purpose of this hearing is to conslder whether the proposed agency action described in the notice of hearing should be taken. All persons wishing to express their views will have an opportunity to do so. 2. Th1s hearing will be recorded on tape or by a court reporte�. This record will be available until the tlme for statutory appeal of fi�al agency action expires a�d a transcr°ipt of the proceeCings vill be prepared at tAe request of any party. If you wish to request such a transcrlpt. for which thpre ic a charae_ Icindlv notlfv the Administrative law Judge. , 3. In order to aid tAe construction of a proper record. it is requested tAat witnesses observe the following rules: (a) o�ly one person s�all be allowed to address tAe hearing at one time; (b) all answers must be verbalized; (the court reporter cannot record 9estures or the nodding of a head� and (c) all technical terms and proper names should De spelled out for the benefit of the person typing the transcript. 4. Attorneys unfamlliar with administrative practice should be aware that the emphasis will be on informality; exclusionary rules of evidence will be interpreted 1lberally in the case of all presentations. Exceptions to any rulings are unnecessary and superfluous. The Administrative law Judge will determine what weight should be assigned to evidence and the findings and reconmendations will be based only on substantial evidence. III. PROCEOURAL RUIES 1 . The rules of procedure governing ttiis hearing are set forth generally in the uniform rules of procedure governing contested cases before state agencies, particularly Minnesota Rule 1400.7800 Conduct of Hearinq. 2. All parties may present evidence and argument with respect to the issues and cross-examine witnesses. 3. Al l parties have a -right to - be represented_. by an- attorney�.at, the - - - . . - . � hearing. _ - _ _ : _ - - _ - -_ --- - = -_ -. - : �- � - �. The Administrative Law Judge may admit all evidence which possesses probative value. including hearsay, if it is the type of evidence on which reasonable prudent persons are accustomed to rely. i� the conduct of their serious affairs. The Administrative law Judge shall give effect to the rules of privilege recognized by law. Evidence which is incompetent. irrelevant, inmaterial or unduly repetitious may be excluded. � � j�- � i� � ti°1Tr °+� Ra ., CITY OF SAINT PAUL o a _ e ���������� ; OFFICE OF THE CITY��4TTORNEY �° "� � ._� , .___� "`� � JANE A. MC PEAK, CITY ATTORNEY �r n� �t�ry �it� �' i-J 647 City Hall,Saint Paul,Minnesota 55102 � ; u.,_ 1Z 612-298-5121 JAMFS SCHEIBEL ,. ,;�: � .- '•- FAX 612-29s-5619 . , , ;.,. MAYOR �-, ���_'_�'� RECEIVED � Juiy �o, 1991 SEP 2 6 1991 Mr. Joseph J. Perkovich, President Mr. Aurelio P. Nardi, secretary CITY CLERK Glass Bar Inc. , dba Glass Bar 299 Maria Avenue Saint Paul, Minnesota 55106 NOTICE OF HEARING RE: City of St. Paul vs. Glass Bar Inc. , dba Glass Bar Dear Mr. Perkovich and Mr.Nardi: � This is to notify you that a hearing will be held concerning all the licenses held at the premises stated above at the following time, date and place: Date: August 12, 1991 Time: 9 a.m. Place: City Hall Annex Room 1503 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: Name: Howard L. Raibel Office of Administrative Hearinqs Fifth Floor, Flour Exchanqe Building 310 Fourth Avenue South Minneapolis, MN 55415 Telephone: 341-7608 The Council of the City of Saint Paul has the authority to provide for hearings concerning licensed premises, and for adverse action against such licenses, under Chapter 310, including sections 310. 05 and 310. 06, of the Saint Paul Legislative Code. In the case of licenses for intoxicating and non-intoxicating liquor, authority is also conveyed by section 340A.415 of the Minnesota Statutes. ' Adverse action may include revocation, suspension, fines and other penalties or conditions. . July 10, 1991 � � Mr. Joseph J. Perkovich, President Mr. Aurelio P. Nardi, Secretary Page two Evidence will be presented to the judge which may lead to adverse action against all the licenses you hold at the above premises� as follows: "On June 20, 1991, at about 6:30 p.m., an employee of the licensed establishment sold a Miller Lite beer to a minor without checking the aqe and/or identification of the minor." You have the right to be represented by an attorney before and during the hearing if you so choose, or you can represent yourself. You may also have a person of your choice represent you, to the extent not prohibited as unauthorized�practice of law. The hearing will be conducted accordance with the requirements of sections 14.57 to 14 . 62 of the Minnesota Statutes, and such parts of the procedures under section 310.05 of the Saint Paul Legislative Code as may be applicable. At the hearing, the Administrative Law Judge will have all parties identify themselves for the record. Then the City will present its witnesses and evidence, each of whom the licensee or attorney may cross-examine. The licensee may then offer in rebuttal any witnesses or evidence it may wish to present, each of whom the city's attorney may cross-examine. The Administrative Law Judge may in addition hear relevant and material testimony from persons not presented as witnesses by either party who have a substantial interest in the outcome of the proceeding; for example, the owners or occupants of property located in close proximity to the licensed premises may have substantial interest in the outcome of the proceeding. Concluding arguments may be made by the parties. Following the hearing, the Judge will prepare Findings of Fact, Conclusions of Law, and a specific recommendation for action to be taken by the City Council. You should bring to the hearing all documents, records and witnesses you will or may need to support your position. Subpoenas may be available to compel the attendance of witnesses or the production of documents in conformity with Minnesota Rules, part 1400.7000. If you think that this matter can be resolved or settled without a formal hearing, please contact or have your attorney contact the . undersigned. If a stipulation or agreement can be reached as to the facts, that stipulation will be presented to the Administrative Law Judge for incorporation into his or her recommendation for Council action. . --` July 10, 1991 � Mr. Joseph J. Perkovich, President Mr. Aurelio P. Nardi, Secretary Page three If you fail to appear at the hearing, the allegations against you which have been stated earlier in this notice may be taken as true and your ability to challenge them forfeited. If non-public data is received into evidence at the hearing, it may become public unless objection is made and relief requested under Minnesota Statutes, section 14 . 60, subdivision 2. Very Truly Yours, PHILIP B. BYRNE .� Assistant City Attorney cc: Robert Kessler License Inspector Albert B. Olson City Clerk Paige Purcell Office of Administrative Hearings Lt. Nancy DiPerna Vice Unit Ms. Susan Omoto Community Organizer Dayton's Bluff Community Council � - ,� /� � /�i ♦CtT}��� R� •, CITY OF SAINT PAUL % ii�ti��i : OFFICE OF THE CITY ATTORNEY r h0 • l�s• JANE A. MC PEAK, CITY ATTORNEY 800 Landmark Towers Q��±F�V E� Saint Paul,Minnesota 55102 612-298-5121 JAMES�SY�HR IBEL ����r 111991 FAX 612-298-5619 ,�� �K October 10, 1991 Mr. Joseph J. Perkovich, President Glass Bar Inc. , dba Glass Bar 299 Maria Avenue Saint Paul, Minnesota 55106 RE: All Licenses held by Glass Bar Inc. , dba Glass Bar for the premises located at 299 Maria Avenue Dear Mr. Perkovich: Enclosed and served upon you by mail are the Written Exceptions to the Report of the administrative law judge in the above case. These will be filed with the City Clerk and presented to the City Council members prior to the hearing. Very Truly Yours, . � - PHILIP . BYRN Assistant City Attorney cc: Robert Kessler License Inspector Lt. Nancy DiPerna Vice Unit Molly O'Rourke City Clerk STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS OAH Docket No. 5-2101-5711-6 IN CITY COUNCIL �FCF�VED �JC�" 111591 In the Matter of the Licenses of The Glass •����K Bar, Inc. , dba The Glass Bar WRITTEN EXCEPTIONS October 10, 1991 I. Summarv The License Division strongly disagrees with the reasons given by the Administrative Law Judge in this case in support of his recommendation for a downward departure. While the City Council may properly, under the ordinance, provide for downward departures from the penalty matrix, to do so for the reasons given in this case would run counter to the policy of the law and effective law enforcement. Based on the record of the hearing, and on the findings of fact and conclusions of law in the ALJ's Report, we strongly urge that the Council impose the penalty provided in section 409.26 of the Legislative Code without a downward departure. II. Administrative Law Judqe Reasons The Administrative Law Judge (hereafter, the "ALJ") recommends a downward departure for two reasons. First, the minor who entered the Glass Bar and was served was 20 years old. Second, the complaints received by the Vice Unit about the Glass Bar were in relation to violations other than serving minors. Age of the Minor. The ALJ's reasoning for allowing a departure because of the age of the minor is not clearly stated. He states that there was no evidence in the record as to when the minor's birthday was, although the minor appeared and testified. Neither the ALJ nor the licensee asked for that information, although each had ample opportunity to do so. There was no finding that the minor appeared to be much older than 21 years.l 1 If the Vice Unit had attempted to make a minor appear, by dress, makeup or disguise, to be older than his or her true age, that would obviously be improper. Or if the Vice Unit sought out a 1 The ALJ also says that the fact that five of the six establishments visited by the decoy minor that evening did in fact serve the minor supports mitigation. This is not necessarily proof of the fact that the minor appeared to be older, but that there continues to be a problem in Saint Paul of laxity in carding people in bars. The AIJ recites past cases in which minors were used in Saint Paul. These cases were not introduced into evidence at the hearing, so the ALJ must have done this research on his own. It is outside the scope of responsibility of the ALJ to attempt to impose a standard upon the Saint Paul Police Department that all decoys in the future must range between 16 and 19 years old. It does not take great insight to recognize that the biggest problem for licensees is the category of older minors, who are 19 and 20 years old, and who could appear to some to be 21 and others not. It is precisely the reason why the Council insists that all such persons be asked for identification, and that licensees must be responsible for seeing that their employees do that. Police Operation. The AIJ says that there should be a downward departure because the reason for the Vice Unit decoy operation related to other offenses unrelated to minors being served. First of all, there is no policy written or otherwise, which limits the full range of matrix penalties to only those cases in which there has been a previous report or complaint of the same violation. This is not true for sales to minors, nor is it true for commission of felonies related to the licensed activity. The police are not obligated to wait for someone to say that minors are being served in a particular bar to do a decoy operation. The citizens have a right to expect that consistent with personnel availability and other workload the police will be vigorous in dealing with problems which have potentially dangerous ramifications.2 III. Licensee Reasons The licensee's defense at the hearing demonstrates the need for adhering to the penalty matrix. The position of the licensee at the hearing was as follows: 1. The blame for the violation belongs solely to the bartender, and not to him as the licensee. It is unjust minor who appeared to be very mature, for the purpose of fooling bartenders, that would also be improper. Neither was the case here. Z In this case, the Glass Bar did have a past violation. There were also complaints relating to other matters which focussed the attention of the Vice Unit on that bar. 2 to hold him responsible for her mistake. She should have been charged with the misdemeanor criminal offense.3 2 . The police procedures were wrong and unfair in this case, because the police should have brought the decoy back into the bar to identify him for the bartender and the licensee. This should have been followed by a warning and not an adverse license action.4 It is noteworthy that the licensee did not at the hearing introduce any evidence or even talk about changes in policies and procedures that would tend to prevent this from happening in the future. The licensee also volunteered the statement at the hearing that a three-day suspension would not hurt him, because the bar business was extremely bad anyway. III. Conclusion The Council is respectfully urged to adopt the ALJ's findings and conclusions, but not to adopt the recommendation or the reasons given for that recommendation. The memorandum attached to the AIJ's Report should not be ratified or adopted. The Council is requested to impose the suspension provided for by the penalty matrix for the reasons set forth above. Submitted this lOth day of October, 1991. . . �� Philip . Byrn Assistant City Attorney Attorney for the License Inspector 647 City Hall Saint Paul, Minnesota 55102 6112-298-5121 Atty. Reg. No. 13961 3 This is directly contrary to the long-established policy of holding licensees responsible for the actions of their employees, a policy which is lawful and based on sound policy considerations. Mr. Perkovich, as a long-time licenseholder in Saint Paul, is well aware of his responsibilities in this regard. ° The ALJ's memorandum concedes that the police were well within their prerogatives in proceeding as they did in this matter. 3 v�tTT�r� �� ., CITY OF SAINT PAUL a � � �_�������� ,. OFFICE OF THE CITY ATTORNEY � �e � �... JANE A. MC PEAK, CITY ATTORNEY 800 Landmark Towers Saint Paul,Minnesota 55102 612-298-5121 JAMES SCHEIBEL FAX 612-298-5619 MAYOR October 10, 1991 Mr. Joseph J. Perkovich, President Glass Bar Inc. , dba Glass Bar 299 Maria Avenue Saint Paul, Minnesota 55106 RE: All Licenses held by Glass Bar Inc. , dba Glass Bar for the premises located at 299 Maria Avenue Dear Mr. Perkovich: Enclosed and served upon you by mail are the Written Exceptions to the Report of the administrative law judge in the above case. These will be filed with the City Clerk and presented to the City Council members prior to the hearing. Very Truly Yours, . � - PHILIP . BYRN Assistant City Attorney cc: Robert Kessler License Inspector Lt. Nancy DiPerna Vice Unit Molly O'Rourke City Clerk STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS OAH Docket No. 5-2101-5711-6 IN CITY COUNCIL In the Matter of the Licenses of The Glass Bar, Inc. , dba The Glass Bar WRITTEN EXCEPTIONS October 10, 1991 I. Summarv The License Division strongly disagrees with the reasons given by the Administrative Law Judge in this case in support of his recommendation for a downward departure. While the City Council may properly, under the ordinance, provide for downward departures from the penalty matrix, to do so for the reasons given in this case would run counter to the policy of the law and effective law enforcement. Based on the record of the hearing, and on the findings of fact and conclusions of law in the AIJ's Report, we strongly urge that the Council impose the penalty provided in section 409.26 of the Legislative Code without a downward departure. II. Administrative Law Judqe Reasons The Administrative Law Judge (hereafter, the "ALJ") recommends a downward departure for two reasons. First, the minor who entered the Glass Bar and was served was 20 years old. Second, the complaints received by the Vice Unit about the Glass Bar were in relation to violations other than serving minors. Aae of the Minor. The ALT's reasoning for allowing a departure because of the age of the minor is not clearly stated. He states that there was no evidence in the record as to when the minor's birthday was, although the minor appeared and testified. Neither the ALJ nor the licensee asked for that information, although each had ample opportunity to do so. There was no finding that the minor appeared to be much older than 21 years.l 1 If the Vice Unit had attempted to make a minor appear, by dress, makeup or disguise, to be older than his or her true age, that would obviously be improper. Or if the Vice Unit sought out a 1 - �/ - � �o � The ALJ also says that the fact that five of the six establishments visited by the decoy minor that evening did in fact serve the minor supports mitigation. This is not necessarily proof of the fact that the minor appeared to be older, but that there continues to be a problem in Saint Paul of laxity in carding people in bars. The ALJ recites past cases in which minors were used in Saint Paul. These cases were not introduced into evidence at the hearing, so the AIJ must have done this research on his own. It is outside the scope of responsibility of the AL�7 to attempt to impose a standard upon the Saint Paul Police Department that all decoys in the future must range between 16 and 19 years old. It does not take great insight to recognize that the biggest problem for licensees is the category of older minors, who are 19 and 20 years old, and who could appear to some to be 21 and others not. It is precisely the reason why the Council insists that all such persons be asked for identification, and that licensees must be responsible for seeing that their employees do that. Police Operation. The AL7 says that there should be a downward departure because the reason for the Vice Unit decoy operation related to other offenses unrelated to minors being served. First of all, there is no policy written or otherwise, which limits the full range of matrix penalties to only those cases in which there has been a previous report or complaint of the same violation. This is not true for sales to minors, nor is it true for commission of felonies related to the licensed activity. The police are not obligated to wait for someone to say that minors are being served in a particular bar to do a decoy operation. The citizens have a right to expect that consistent with personnel availability and other workload the police will be vigorous in dealing with problems which have potentially dangerous ramifications.2 III. Licensee Reasons The licensee's defense at the hearing demonstrates the need for adhering to the penalty matrix. The position of the licensee at the hearing was as follows: 1. The blame for the violation belongs solely to the bartender, and not to him as the licensee. It is unjust minor who appeared to be very mature, for the purpose of fooling bartenders, that would also be improper. Neither was the case here. 2 In this case, the Glass Bar did have a past violation. There were also complaints relating to other matters which focussed the attention of the Vice Unit on that bar. 2 f . ♦ �j - ✓! /� I to hold him responsible for her mistake. She should have been charged with the misdemeanor criminal offense.3 2. The police procedures were wrong and unfair in this case, because the police should have brought the decoy back into the bar to identify him for the bartender and the licensee. This should have been followed by a warning and not an adverse license action.4 It is noteworthy that the licensee did not at the hearing introduce any evidence or even talk about changes in policies and procedures that would tend to prevent this from happening in the future. The licensee also volunteered the statement at the hearing that a three-day suspension would not hurt him, because the bar business was extremely bad anyway. III. Conclusion The Council is respectfully urged to adopt the ALJ's findings and conclusions, but not to adopt the recommendation or the reasons given for that recommendation. The memorandum attached to the AIJ's Report should not be ratified or adopted. The Council is requested to impose the suspension provided for by the penalty matrix for the reasons set forth above. Submitted this 10th day of October, 1991. . �. Philip . Byrn Assistant City Attorney Attorney for the License Inspector - 647 City Hall Saint Paul, Minnesota 55102 . 6112-298-5121 Atty. Reg. No. 13961 3 This is directly contrary to the long-established policy of holding licensees responsible for the actions of their employees, a policy which is lawful and based on sound policy considerations. Mr. Perkovich, as a long-time licenseholder in Saint Paul, is well aware of his responsibilities in this regard. ° The ALJ's memorandum concedes that the police were well within their prerogatives in proceeding as they did in this matter. 3 . . . . . . .,, . _ .: ; . , . °- -_ ._ ,- , - . ,� ;w. � _ _ _ . '.`, .:'': . .. -� ': ° - _ _ ' , ; ; • ;. �_ . .. . ._ _ . ... �.. .: ;: , , .. _ . ;:r F _ - • F :F _ r, r -.,_. .�. .:.. _' . .:: �' " ., . .... .': :.: � ;> �,'_ . :' �,.. , .�: .. .� ... " ' . ..- ... . .,.. ,. .. ..� _, . . .�. . ... 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