11-6020-17466-6

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE ST. PAUL CITY COUNCIL

In the Matter of All Licenses Held

by Vone X Moua and Mee Lee Moua, FINDINGS OF FACT,

d/b/a Malina’s Sports Bar and Grill, CONCLUSIONS OF LAW,

for the Premises Located at 691 Dale AND RECOMMENDATION

Street North in St. Paul, Minnesota.

The above matter came on for hearing before Administrative Law Judge Barbara L. Neilson on September 13, 2006, at City Hall in St. Paul, Minnesota. The record closed at the end of the hearing that day.

Rachel Gunderson, Assistant City Attorney, 400 City Hall, 15 West Kellogg Blvd., St. Paul, Minnesota 55102, appeared on behalf of the Office of License, Inspections and Environmental Protection (“LIEP”). Vone Moua and Mee Moua, 691 Dale Street North, St. Paul, Minnesota 55103, owners of Malina’s Sports Bar and Grill, appeared without counsel on their own behalf.

STATEMENT OF ISSUE

Should action be taken against the licenses held by Vone X Moua and Mee Lee Moua, d/b/a Malina’s Sports Bar and Grill, because they failed to maintain video surveillance cameras inside and outside their establishment on January 22, 2006, and thereby violated a condition placed on their license?

As discussed more fully below, the Administrative Law Judge concludes that the Licensees did fail to properly maintain video surveillance cameras inside and outside their establishment on January 22, 2006, and that an adverse licensing action is justified.

Based upon all the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1. The Licensees, Vone X Moua and Mee Lee Moua, d/b/a Malina’s Sports Bar and Grill, have held various City licenses, including entertainment, liquor on-sale, 2 a.m. closing, and restaurant licenses, since approximately 2001.[1]

2. The conditions imposed on the Licensees’ licenses include the following requirement: “The license holder will maintain video surveillance cameras inside and outside the establishment.” This condition was placed on the licenses at the time they were originally issued in approximately 2001 at the request of the community and the District Council because there had been problems at the location in the past, when it was operated by other individuals.[2] When conditions are imposed on a City license, they are signed by the licensee and attached to the license. Upon issuance and renewal of licenses, conditions that have been imposed by the license are printed on the license.[3]

3. The Licensees were aware of the surveillance camera condition. They installed two new surveillance camera systems at Malina’s to comply with this requirement. The system uses VHS recorders. Typically, the cameras record for 24 hours on one tape, and then record over that tape.[4]

4. It was the Licensees’ understanding that the surveillance camera condition would only be imposed for one year. After the Licensees had been in operation for about one year, they discussed removal of the surveillance condition with representatives of the District 7 Council. The District Council told the Licensees that the condition should remain on the license because of the history of this establishment but the Licensees shouldn’t worry about the condition if they continued to run the establishment well.[5] There is no evidence that the Licensees ever discussed removal of the condition with the City’s Office of License, Inspections and Environmental Protection (LIEP).[6]

5. Some other bars located in the vicinity of Malina’s Sports Bar and Grill do not have surveillance cameras.[7] However, a number of establishments in St. Paul do have surveillance camera conditions, since surveillance cameras are important in monitoring events and can be of assistance in quickly solving crimes.[8]

6. On January 22, 2006, at 2:09 a.m., St. Paul Police responded to a report that there was a fight in the parking lot of Malina’s and shots had been fired. Malina’s was closed at the time. The complainant told the police that he observed ten to twenty individuals smashing the windows of his friend’s vehicle, saw two individuals pull guns out of their jackets, and thought he heard gunshots. The owner of the vehicle told police that he left Malina’s, got into his vehicle, and then saw numerous individuals throwing bottles at his windows. He went back into the bar. When he returned, he found that his windshield and five other windows of his vehicle were broken. He did not hear any gunshots. The police report issued regarding this incident noted that the officer “was unable to look at surveillance, as the bar was closed at this time.”[9] Although Malina’s was closed at the time, employees were still inside, cleaning. There is no evidence that the police officers knocked on the door to request the tape.[10]

7. On January 24, 2006, St. Paul Police Officers attempted to obtain a videotape from Malina’s for January 22, 2006. The videotape provided by Malina’s to the police was dated January 15, 2006, and had not been replaced so that no video recording had been made of the incident.[11] On prior occasions, the police requested tapes from Malina’s right away, rather than waiting until almost 36 hours later.[12] However, it is not unusual for such an amount of time to elapse before the police make a request for a videotape. Here, since the incident occurred early on a Sunday morning, the report most likely was not reviewed by St. Paul Police Department command staff until the following Monday morning (January 23, 2006), and was not sent to Sgt. Kenneth Jensen until Tuesday, January 24, 2006, when the videotape was requested.[13]

8. A videotape regarding the incident would have been very helpful to the Police in this case. They were not otherwise able to find a suspect. In addition, the Asian Gang Unit is interested in following up on the allegation that guns were seen.[14]

9. After the LIEP Office reviewed police reports reflecting the failure of Malina’s to produce a videotape with respect to the January 22, 2006, incident and consulted with the City Attorney’s Office, LIEP determined that the Licensees had violated the condition of their license requiring the maintenance of video surveillance cameras inside and outside the establishment. LIEP considers the parking lot to be part of the establishment.[15]

10. LIEP issued a Notice of Violation on August 10, 2006, nearly seven months after the January 22, 2006, incident occurred.[16] LIEP recommended that a $500 fine be assessed based upon the penalty matrix set forth in the St. Paul Legislative Code, since Malina’s has not previously been found to have violated this condition. The Notice of Violation informed the Licensee of the nature of the violation, the proposed fine, and the opportunity to request a hearing before an Administrative Law Judge.[17]

11. By letter dated August 15, 2006, the Licensees requested a hearing before an Administrative Law Judge.[18]

12. On August 30, 2006, the City Attorney’s office issued the Notice of Hearing setting the hearing for September 13, 2006.[19] The hearing took place as scheduled.

13. On at least one other occasion (January 6, 2006), St. Paul Police requested a videotape from Malina’s in connection with an incident involving criminal damage to property and Malina’s was unable to turn over the videotape because its videotape system was not working.[20]

Based upon the above Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. The Administrative Law Judge and the St. Paul City Council have jurisdiction to hear this matter pursuant to St. Paul Legislative Code § 310.05.

2. The City of St. Paul gave proper notice of the hearing and has fulfilled all relevant substantive and procedural requirements of law and rule.

3. As the party proposing that certain action be taken, the City has the burden of proving facts at issue by a preponderance of the evidence.[21]

4. The St. Paul Legislative Code authorizes the City Council to take adverse action against any or all of the licenses held if “the licensee or applicant has failed to comply with any condition set forth in the license, or set forth in the resolution granting or renewing the license.”[22]

5. The St. Paul Legislative Code provides that, for a first violation, the presumptive sanction for violation of a condition placed on the license is a fine in the amount of $500.[23] The City Council may deviate from this penalty in an individual case where the Council finds that substantial and compelling reasons exist making it more appropriate to do so.[24]

6. There are no substantial or compelling reasons in the record to justify a deviation from the presumptive penalty in this case.

Based upon the above Conclusions of Law, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS HEREBY RECOMMENDED that the St. Paul City Council take appropriate action against the licenses held by Vone X Moua and Mee Lee Moua, d/b/a Malina’s Sports Bar and Grill.

Dated: October 12, 2006. s/Barbara L. Neilson

________________________________

BARBARA L. NEILSON

Administrative Law Judge

Reported: Tape recorded (no transcript prepared).

NOTICE

This report is a recommendation, not a final decision. The St. Paul City Council will make the final decision after a review of the record and may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendation. Under St. Paul Legislative Code § 310.05(c-1), the City Council shall provide the licensee an opportunity to present oral or written arguments alleging error in the application of the law or the interpretation of the facts and to present argument related to the recommended adverse action contained in this Report. Parties should contact Rachel Gunderson at the address above to learn the procedure for filing exceptions or presenting argument. The St. Paul City Council is requested to serve notice of its final decision upon each party and the Administrative Law Judge by first-class mail.

MEMORANDUM

The Licensees initially contended that the only reason they were unable to provide a videotape with respect to the January 22, 2006, incident was because the police request for the videotape was not sufficiently prompt and the videotape at issue had been recorded over the next day. However, it is clear from the testimony of Sgt. Jenkins that the tape recording provided by Malina’s was dated January 15, 2006, suggesting that Malina’s had failed to properly record events between January 16, 2006, and January 22, 2006. Although the City could do more to clarify with licensees its expectations that videotapes will be held for 30 days before being reused, it was not reasonable for Licensees to immediately record over an existing tape the next day. Because no recording was made on January 22, 2006, it is apparent that the Licensees here failed to properly maintain video surveillance cameras on that date. Moreover, this is not the first time that the Licensees have failed to produce a videotape requested by St. Paul Police. The record supports imposition of an appropriate fine.

B. L. N.

[1] Testimony of Kristina Schweinler; Ex. 1-3 through 1-14.

[16] Exs. 2, 3, 4, Testimony of K. Schweinler, V. Moua.

[22] St. Paul Legislative Code § 310.06(b)(5).

[23] St. Paul Legislative Code § 310.05(m)(1).