05-180ORDINANCE
CITY OF SAINT PAUL, MINNESOTA
Presented By
Referred To
Council File # �d
Ordinance #
Green Sheet # 3�a535�
43
Committee Date :
1 An ordinance amending Chapter 310 to include
2 presumptive penalties for certain license violations
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5 THE COUNCIL OF THE CITY OF SAINT PAUL DOES ORDAIN:
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Section 1
Chapter 310.05 of the Saint Paul Legislative Code is hereby amended to read as follows:
Sec. 310.05. Hearing procedures.
(a) Adverse action; noUce and hearing requirements. In any case where the council may or
intends to consider any adverse action, including the revocation or suspension of a
license, the imposition of conditions upon a license, or the denial of an application for the
grant, issuance or renewal of a license, or the disapproval of a license issued by the State
of Minnesota, the applicant or licensee shall be given notice and an opportunity to be
heazd as provided herein. The council may consider such adverse actions when
recommended by the inspector, by the director, by the director of any executive
department established pursuant to Chapter 9 of the Charter, by the city attorney or on its
own initiative.
(b) Notice. In each such case where adverse action is or will be considered by the council, the
applicant or licensee shall have been notified in writing that adverse action may be taken
against the license or appiication, and that he or she is entitled to a hearing before action
is taken by the council. The notice shall be served or mailed a reasonable time before the
hearing date, and shall state the place, date and time of the hearing. The notice shall state
the issues involved or grounds upon which the adverse action may be sought or based.
The council may request that such written notice be prepared and served or mailed by the
inspector or by the city attorney.
(c) Hearing. Where there is no dispute as to the facts underlying the violation or as to the
facts establishing mitigating or aggravating circumstances, the hearing shall be held
before the council. Otherwise the hearing shall be conducted before a hearing examiner
appointed by the council or retained by contract with the city for that purpose. The
applicant or the licensee shall be provided an opportunity to present evidence and
1 argument as well as meet adverse testimony or evidence by reasonable cross-examination ����`''
2 and rebuttal evidence. The hearing examiner may in its discretion pernut other interested
3 persons the opportunity to present testimony or evidence or otherwise participate in such
4 hearing.
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6 (o-l) Procedure; hearing examiner. The hearing examiner shall hear all evidence as may be
7 presented on behalf of the city and the applicant or licensee, and shall present to the
8 council written findings of fact and conclusions of law, together with a recommendation
9 for adverse acrion.
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The council shall consider the evidence contained in the record, the hearing examiner's
recommended findings of fact and conclusions, and shall not consider any factual testimony not
previously submitted to and considered by the hearing examiner. After receipt of the hearing
examiner s findings, conclusions, and recommendations, the council shall provide the applicant
or licensee an opportunity to present oral or written azguments alleging error on the part of the
examiner in the application of the law or interpretation of the facts, and to present argument
related to the recommended adverse action. Upon conclusion of that hearing, and after
considering the record, the examiner's findings and recommendations, together with such
additional arguments presented at the hearing, the council shall deternvne what, if any, adverse
action shall be taken, which action shall be by resolution. The council may accept, reject or
modify the findings, conclusions and recommendations of the hearing examiner.
(c-2) Ex-parte contacts. If a license matter has been scheduled for an adverse hearing, council
members shall not discuss the license matter with each other or with any of the parties or
interested persons involved in the matter unless such discussion occurs on the recard
during the hearings of the matter or during the council's final deliberations of the matter.
No interested person shall, with lrnowledge that a license matter has been scheduled for
adverse hearing, convey ar attempt to convey, orally or in writing, any information,
azgument or opinion about the matter, or any issue in the matter, to a council member or
his or her staff until the council has taken final action on the matter; provided, however,
that nothing herein shall prevent an inquiry or communications regarding status,
scheduling or procedures concerning a license matter. An interested person, for the
purpose of this paragraph, shall mean and include a person who is an officer or employee
of the licensee which is the subject of the scheduled adverse hearing, or a person who has
a financial interest in such licensee.
(d) Licensee or applicant may be represented. The licensee or applicant may represent
himself or choose to be represented by another.
(e) Record; evidence. The hearing examiner shall receive and keep a record of such
proceedings, including testimony and exhibits, and shall receive and give weight to
evidence,including hearsay evidence, which possesses probative value commonly
accepted by reasonabie and prudent persons in the conduct of their affairs.
(fl Council action, resolution to contain findings. Where the council takes adverse action
with respect to a license, licensee or applicant for a license, the resolution by which such
action is taken shall contain its findings and determination, including the imposition of
conditions, if any. The council may adopt all or part of the findings, conclusions and
recommendations of the hearing examiner, and incorporate the same in its resolution
taking the adverse action.
(g) Additional procedures where required. Where the provisions of any statute or ordinance
require additional notice or hearing procedures, such provisions shall be complied with �",gb
and shall supersede inconsistent provisions of these chapters. This shail include, without
limitation by reason of this specific reference, Minnesota Statutes, Chapter 364 and
Minnesota Statutes, Section 340A.415.
6 (h) Discretion to heaz notwithstanding withdrawal or surrender of applicarion or license. The
7 council may, at iTs discretion, conduct a hearing or direct Yhat a hearing be held regarding
8 revocation or denial of a license, notwithstanding that the applicant or licensee has
9 attempted or purported to withdraw or surrender said license or application, if the
LO attempted withdrawat or surrender took place after the applicant or licensee had been
11 notified of the hearing and potential adverse action.
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(i) Continuances. Where a hearing for the purpose of considering revocation or suspension
of a license or other disciplinary action involving a license has been scheduled before the
council, a conrinuation of the hearing may be granted by the council president or by the
council at the request o£ the licensee, license applicant, an interested person or an attorney
representing the foregoing, upon a showing of good cause by the party making the
request.
(j) If the council imposes an adverse action as defined in section 310.01 above, a generic
notice of such action shall be prepared by the license inspector and posted by the licensee
so as to be visible to the public during the effective period of the adverse action. The
licensee shall be responsible for taking reasonable steps to make sure the notice remains
posted on the front door of the licensed premises, and failure to take such reasonable
precautions may be grounds for further adverse action.
(k) Imposition of costs. The council may impose upon any licensee or license applicant some
or all of the costs of a contested hearing before an independent hearing examiner. The
costs of a contasted hearing include, but aze not limited to, the cost of the administrative
law judge or independent hearing examiner, stenographic and recording costs, copying
costs, city staff and attorney time for which adequate records have been kept, rental of
rooms and equipment necessary for the hearing, and the cost of expert witnesses. The
council may impose all or part of such costs in any given case if (i) the position, claim or
defense of the licensee or applicant was frivolous, arbitrary or capricious, made in bad
faith, or made £or the purpose of delay or harassment; (ii) the nature of the violation was
serious, or involved violence or the threat of violence by the licensee or employees
thereof, or involved the sale of drugs by the licensee or employees thereof, and/or the
circumstances under which the violation occurred were aggravated and serious; (iii) the
violation created a serious danger to the public health, safety or welfaze; (iv) the violation
involved unreasonable risk of hann to vulnerable persons, or ta persons for whose safety
the licensee or applicant is or was responsible; (v) the applicant or licensee was
sufficienfly in control of the situation and therefore could have reasonably avoided the
violation, such as but not limited to, the nonpayment o£ a required fee or the failure to
renew required insurance policies; (vi) the violation is covered by the matrix in section
409.26 of the I.egislative Code; or (vii) the violation involved the sale of cigazettes to a
minor.
(1) Imposition of fines. The conncil may impose a fine upon any licensee or license applicant
as an adverse license action. A fine may be in such amount as the council deems
reasonable and appropriate, having in mind the regulatory and enforcement purposes
embodied in the particular licensing ordinance, A fine may be in addition to or in lieu of
other adverse action in the sole discretion of the council. To the extent any other
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provision of the Legislative Code provides for the imposition of a fine, both provisions �5' � p�
shall be read together to the extent possible; provided, however, that in the case of any
conflict or inconsistency, the other provision shall be controlling.
� Presum tp ive penalties for certain violations.
Purpose. The pumose of this section is to establish a standard by which the citv council
deternunes the amount of fines, the leneth of license sus�ensions and the proprietv of
revocarions, and shall apply to ail license types, exce�t that in the case of a violarion involvin¢ a
liquor license �409.26 shall apply where a specific violation is listed. These penalries are
presumed to be approoriate for everv case; however the council may deviate therefrom in an
individual case where the council finds and determines that there exist substantial and
compelline reasons making it more appropriate to do so. When deviatin� from these standazds.
the council shall provide written reasons that snecifv whv the �enalt�selected was more
appronriate.
Type of Avueazance
Violation
lst 2nd 3rd 4th
(11 Violations $500.00 fine $1,000.00 fine $2.000 fine and Revocation
of conditions 10-dav
nlaced on the suspension
license
(21 Violation of $500.00 fine $1,000.00 fine $2.000 fine and Revocation
nrovisions of l0�dav
the le �slg�ative suspension
code relatine to
the ]icensed
activit
(3) Failure to 5-dav l0�dav 15�dav Revocaiion
permit entrance sus�ension sus�ension suspension
orinspection bv
LIEP ins ector
or olice
(4) commission 700.00 1 500.00 5-dav revocation
of a crime other sus ension
than a felonv on
the premises by
a licensee or
em lo ee
(5) commission 2 000.00 Revocation n/a n/a
of a felony on
the premises bv
a licensee or
em lo ee
�1, •. �
2 � Fines �avable without hearin�. Notwithstanding the provisions of section 310.05(cl. a
3 licensee who would be making_ a first or second ap�eazance before the councii may elect to nav
4 the fine to the o�ce of I.IEP without a council hearing the notice of violation has
5 indicated that a hearin ig s required because of circumstances which mav wan-ant deviation from
6 the�resumptive fine amount. Pavment of the recommended fine will be considered to be a
7 waiver of the hearing to which the licensee is entitled, and wiii be considered an"ag�earance" for
8 the�uroose of determiningpresumptive penalUes for subsequent violations_
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ii MulUnle violations. At a licensee's first appeazance before the city council, the council
shall consider and act upon all the violations that have been alleged and/or incor�orated in the
notices sent to the licensee under the aciministrative procedures act up to and includin�the
formal notice of hearing. The council in that case shall consider the presumpUve�enalty for each
such violation under the "lst AQnearance" column in paza�raph (bl above. The occurrence of
multiple violations shall be g,rounds for deQarture from such �enalties in the council's discretion.
iii Violations occurrine after the date of the notice of hearing that aze brought to the
attention of the cit�attornekprior to the hearine date before an administrative law judge (or
before the council in an uncontested facfs hearing� may be added fo the notice(sl by stipulation if
the licensee admits to the facts, and shall in that case be treated as though part of the "lst
A�pearance." In all other cases, violations occurrin� after the date of the formal notice of hearing
shall be the subject of a sepazate proceedin¢ and dealt with as a"2nd AQpearance" before the
council. The same procedures shail anvlv to a second, third or fourth appearance before the
council.
iv Subsequent appearances. Upon a second, third or fourth appearance before the council by
a particular licensee, the council shall impose the rU esumptive ev nalty for the violation or
violations �givinQ rise to the subsequent a�peazance without re�ard to the particular violation or
violations that were the subject of the first or prior ap�peazance.
v� Computation of time:
� If a licensee a�pears before the council for an�violation in paza�raph (ml where
that violation has occurred within twelve (121 calendar months after the first
ap�earance of the same licensee for a violarion listed in uara�ra�h (ml above, the
cutrent ap�earance shall be treated as a second ap�earance for the Qumose of
deternunin� the presumptive penaltv.
� If a licensee has appeared before the council on two (2) previous occasions for
violations listed in para�raph (ml, and if said licensee aeain agnears before the
council for a violation listed in ��anh (m). and if the current violation occurs
within eip,hteen (181 calendar months of the violation that ¢ave rise to the first
a�pearance before the council, then the cunent a�eazance shail be treated as a
third appearance for the �ur�ose of deternuningpresumQtive penalty.
� If a licensee has appeared before the council on three (31 previous occasions, each
for violations listed in paza�nh (ml. and if said licensee a�ain apnears before the
council for a violation contained in para�raph (ml, and if the current violation
occuned within twentv-four (24) calendar months of the violation that eave rise to
the first �earance, then the current appearance shall be treated as a Fourth
a�pearance for the purpose of deternuning the presumptive�enaltv.
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� Anv a�peazance not covered bv subsections (1). (21 or (31 above shall be treated as � J
a first ap�earance. In case of multiple violations in anv appearance, the date to be
used to measure whether tweIve (12}, eighteen (181, or twenty-four (24) months
have elapsed shall be the date of the violation last in time at the first appearance.
and the date of the violarion first in time at an sv ubsequent appearance.
Secrion 2
This ordinance shall take effect and be in force thirty (30) days following its passage,
approval and publication.
�. .
' � -.,�'.�
:�� ' � `�
�
Requested by Department of;
AdoF
B}':
Appz
BY:
BY�
Form Approved by City Attorne�)
� ,/
Byc
Approved by Mayor for Submission to Council
B�':
Adopted by Council: Date TS� � 020�
� Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet
�" DepartmenVofficelt
�.,
. C,/q - Gry nuomey
Contact Person & Phone:
l.¢e HBic,�,'n
ConiractType:
OR-0RDINANCE
Date IniGated:
23FE6-05
_ ��
�
� '
ASSign
by (Datej: Number
For
Routing
Order
Total # of5ignaW re Pages _(Ctip All Lxations for Signature}
Green Sheet NO: 3025357
0 }L5 i —�
1 ' Atto e M �*
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��c
An ordinance amending Chapter 310 to include presumpfive penalties for certain license violadons.
Recommendations: Approte (A) or fa
Planning Commission
CIB Commiriee
Gtil Servce Commission
InitialfDate
Persona) Service Contracis Must Answer tne ronoweng uueswns.
t. Has this persoNfirtn e�err worked under a coMract for Uus depattment?
e
Yes No
2, Has this persoNfirtn e�er been a city emWoyee?
Yes. No
3. Does this peisaJfifm possess a skill not nortnatly possessed by any
curreM city employee?
Yes No
Eupiain aii yes aoswers on separate sheet anC attach to green sheet
� InitiaEng Problem, Issues, Opportunity (Who, What, When, Where, Why):
Advanta47es If Approvetl:
Disadvantaaes If Mproved:
Disadvantages If NoiApproved:
7Yansaction:
FundiR¢ 8ource:
Financial information:
(Explain)
February 23, 2005 3:33 PM
CosNRevenue Budgeted:
ActiviN Number:
Page 1
District 6 Pianning Covncif
� �
ds-�sd
213 Front Avertue
St. Faui, MN 551 t 7
Phone 35t488-4d85
Faz 65'1 488-0343
districk6@popp.net
March 16, 2005
Counci{ Member l.ee Neigert
City Hall Suite 31Q A
15 Wesfi Ke((ogg BLVD
Saint Paul, MN 55102
Qear Council Member Nelgen,
District 6 Pfanning Counci{ Land Use Task Force whoteheartedly supparts
imposing penaities on businesses that LtEP finds ouf of compiiance.
tn the past there has been liftle or no immediate action that inspectors coutd take,
in Fact to impose any type of reprimand was quite difficu(t. lf fines and revocaGons
are ai(owed, LtEP wouid have an easier time ensuring compliance with ticenses
that have conditions attached.
in ensuring compliance, businesses which may have questionab(e practices are
held accauntabte. SEandards wiil be mef and the community at targe wiii
ultimateiy benefit. In attempting to hoid businesses accounEable and raise our
community's expectatians, fines and revocations are a must, without it there witt
be littfe or no recourse.
District 6 l.and Use Task Force supports this initiative and hopes that the City
Cou�cii as a whole witl take this much needed and tong awaited action.
Regard ,
/''(GF��
Jeff Martens
Land Use 7ask Force Chair
41�I2ilSIQ E7E088tT59 99�ZL S