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OAH Docket No.
7-6020-17882-3 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE
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In the Matter of All Licenses Held by
Billy Neng Yang, d/b/a Asian Cuisine, for the Premises Located at 945 Rice
Street in St. Paul, Minnesota 55117 |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
The above
matter was heard by Administrative Law Judge Richard C. Luis, acting as a
hearing officer for the St. Paul City Council, on April 3, 2007 at the St. Paul
City Hall/Ramsey County Courthouse, Room 40B,
Rachel Gunderson,
Assistant City Attorney, 400 City Hall,
The Hearing record closed at the conclusion of the
hearing on April 3.
The issues presented at the hearing were:
Should adverse action be taken against the licenses held by Billy Neng Yang, d/b/a Asian Cuisine, because it allowed the after-hours display and consumption of alcohol in violation of St. Paul Legislative Code § 409.07(c); and
Should adverse action be taken against the licenses held by Billy Neng Yang, d/b/a Asian Cuisine, for failing to maintain a video surveillance camera to observe the parking lot and outside of the licensed premises and the failure to provide video surveillance tapes to St. Paul Police in violation of Condition #3 of its license; and
Should adverse action be taken against the licenses held by Billy Neng Yang, d/b/a Asian Cuisine, for the failure to provide security on a night when entertainment was present from 6:00 p.m. to close in violation of Condition #4 of its license; and
What is the appropriate discipline for these violations?
As discussed more fully below, the Administrative Law Judge concludes that the Licensee did allow the display and consumption of alcohol after hours and did violate Condition #3 of its license, so an adverse licensing action is justified.
Based on all of the proceedings, the Administrative
Law Judge makes the following:
1. Billy Yang is the owner of Asian Cuisine. Thai Vue is the manager of Asian Cuisine.
2.
Asian Cuisine is a restaurant located at
3. Licensee holds the following licenses: Wine On Sale, Malt On Sale Strong, Restaurant B, Entertainment B, Catering Add-On and Food Vehicle.
4. Billy Neng Yang, d/b/a Asian Cuisine, has the following conditions placed on his licenses:
5. Asian Cuisine is licensed to close at 1:00 a.m.[7]
6.
On December 27, 2006, St. Paul City Police
Officer Steve Petron was dispatched to
7. The undated videotape provided at the hearing by Licensee[9] shows three views: one inside the bar/club room, and two of different areas in the front-strip mall parking lot. The two front views do not cover the whole parking lot. There is an area missing on the video coverage between the north end of one camera’s view and the south end of the other’s view. No part of the alley behind the licensed premises is pictured.
8.
On January 20, 2007 St. Paul City Police Officer
Phuong Chung was working undercover for the City of
9. Officer Chung and CLO Vang entered Asian Cuisine at approximately 1:15 a.m. and observed patrons inside, drinking beer and dancing. Officer Chung estimated that between 150-175 people were inside Asian Cuisine.[11] Officer Chung approached the counter and asked an employee to purchase a beer. The employee, an Asian male, told Officer Chung that the counter was closed.[12] Officer Chung did not see anyone else inside Asian Cuisine purchase alcohol.[13]
10. On January 20, 2007, a live band was playing inside Asian Cuisine. Officer Chung observed the band playing when he entered Asian Cuisine at 1:15 a.m., and the band continued playing through 1:45 a.m., at which time the officers left Asian Cuisine. Officer Chung was not aware of the presence of any security personnel. Officer Chung did not ask anyone inside or outside Asian Cuisine whether security was present or who was working security.[14]
11. Asian Cuisine employed security personnel on the evening in question, and they were present during the time between 1:15 a.m. and 1:45 a.m.
12. At 1:45 a.m., Officer Chung and CLO Vang left Asian Cuisine. At that time, Officer Chung observed a handful of people still drinking beer. Officer Chung estimated that approximately 100-120 patrons were still inside Asian Cuisine when they left.[15]
13. The St. Paul LIEP Office has an unwritten policy that is explained to liquor licensees at the time of license application.[16] Although city ordinance prohibits the sale and display or consumption of alcohol after 1:00 a.m.[17] (where a licensee has not been authorized for a 2:00 a.m. closing time), on nights when entertainment is present, the LIEP Office requires only that such licensees stop serving alcohol by 1:00 a.m. and stop allowing people to enter the premises after 1:00 a.m.; licensees have another half hour, until 1:30 a.m., to clear customers from the premises and ensure that no alcohol is being consumed or displayed. Under the City’s policy, patrons who were in the bar by 1:00 a.m. are permitted to remain until 1:30 a.m. to finish their drinks; however, everyone must be out by 1:31 a.m.[18]
14. A live band constitutes “entertainment” within the meaning of Asian Cuisine’s license.[19]
15. On February 14, 2007, the City Attorney’s Office sent Licensee a Notice of Violation relating to the incident on December 27, 2006 and the two incidents (open too late, lack of security personnel) on January 20, 2007. The notice indicated that LIEP would be recommending a $1500 fine.[20]
16. On March 1, 2007, Licensee requested a hearing on all three incidents.[21]
17. On March 16, 2007, the City Attorney’s Office issued a Notice of Administrative Hearing on all three violations, setting a hearing for April 3, 2007.
Based on the Findings of Fact, the Administrative Law Judge makes the
following:
1.
The Saint Paul City Council and the
Administrative Law Judge have jurisdiction in this matter under
2. The hearing was conducted in accordance with the requirements of Minnesota Statutes sections 14.57 to 14.62 and applicable portions of the procedures set forth in section 310.05 of the Saint Paul Legislative Code.
3. The City has given proper and timely notice of the hearing in this matter and has fulfilled all procedural requirements of law and rule.
4. The St. Paul Legislative Code authorizes the City Council to take adverse action against a license when the “licensee has failed to comply with any condition set forth in the license, or set forth in the resolution granting or renewing the license.”[23]
5. “Adverse action” is defined in the Saint Paul Legislative Code to include the imposition of conditions on a license, the imposition of a fine, the assessment of the costs of a contested hearing, and any other disciplinary or unfavorable action taken with respect to a license, licensee or applicant for a license.[24]
6. The City bears the burden in this matter of proving by a preponderance of the evidence that “licensee failed to comply with any condition set forth in the license, or set forth in the resolution granting or renewing the license.”[25]
7. Any of the Findings more properly considered Conclusions are adopted as such.
8. On December 27, 2006 Asian Cuisine violated Condition #3 of its license by failing to provide video surveillance tapes to the St. Paul Police.
9. On January 20, 2007, Asian Cuisine was open and allowing patrons to enter the business after its authorized closing time.
10. The City has not proven that on January 20, 2007, Asian Cuisine did not provide security in violation of Condition #4 of its license. Accordingly, it is appropriate to reduce the fine imposed on the Licensee in an amount proportionate to that offense.
Based on the Conclusions, the Administrative Law Judge makes the following:
IT IS RECOMMENDED that the St. Paul City Council take appropriate adverse action against the licenses held by Billy Neng Yang, d/b/a Asian Cuisine, for failure to provide video surveillance tapes for December 27, 2006, and for staying open later than authorized on January 20, 2007; and
IT IS RECOMMENDED FURTHER that the St. Paul City Council RESCIND the allegation that the Licensee did not provide security on January 20, 2007, a night when entertainment was scheduled, in violation of Condition #4 of its license, and to reduce the fine imposed on the Licensee accordingly.
Dated this _2nd_ day of May, 2007
_/s/
Richard C. Luis _
RICHARD
C. LUIS
Administrative
Law Judge
Reported: Taped
This report is a recommendation, not
a final decision. The St. Paul City
Council will make the final decision after review of the record and may adopt,
reject or modify these Findings of Fact, Conclusions, and Recommendation. Under St. Paul Legislative Code § 310.05(c-1),
the City Council shall provide the parties an opportunity to present oral or written
arguments to the City Council before it takes final action. Parties should contact Shari Moore, St. Paul
City Clerk, 170 City Hall,
The City has
proved by a preponderance of the evidence that Asian Cuisine allowed the
display and consumption of alcoholic beverages after 1:30 a.m. Though Licensee testified that no one is
allowed to purchase beer after 12:45 a.m., Licensee did not provide evidence to
dispute Officer Chung’s testimony that patrons were still drinking from beer
bottles inside Asian Cuisine at 1:45 a.m. It is reasonable to presume without
testing that the substance inside the beer bottles was, in fact, beer, and
neither Licensee nor Mr. Vue dispute this presumption. The City therefore demonstrated by a
preponderance of the evidence that consumption or display of alcohol occurred
at Asian Cuisine after 1:30 a.m. on January 20, 2007. Because the City
ordinance prohibits consumption or display of liquor at any time when the sale
of such liquor is not permitted, it is not necessary for the City to show that
police officers observed actual service or sales of liquor.[26] Also, Officer Chung and his partner were
allowed into the bar after 1:00 a.m., which violates the policy mentioned by
Ms. Rozek.
The City of
Mr. Vang testified credibly that he had
previously installed a video security camera to monitor the alley. According to Licensee, this security camera
was located in a dangerous area, where the camera was repeatedly broken by
passers-by. Licensee testified that he
had replaced that camera several times, but it has become too expensive for him
to continue replacing it. The
Administrative Law Judge believes it appropriate to reduce the fine imposed, in
part, to enable Licensee to install and maintain a security camera in this
location in the future. During the
hearing, Christine Rozek informed Licensee that the St. Paul Police will help
Licensee to set up video surveillance of the outside area in a manner which
will prevent the cameras from being vandalized again. Licensee was clearly unaware that this
service was available. The St. Paul City
Council could take this into account in deciding on the appropriate amount of
fine.
The City of
Licensee contends, and Mr. Vue agrees,
that security was present on January 20, 2007.
Licensee stated that he paid security to be there on January 20, 2007.
The City did not provide any evidence to dispute this statement. Licensee also stated that Asian Cuisine
employs security to check IDs for persons who look young, presumably under the
age of twenty-one. Counsel for the City
contends that, in that case, security should have checked Officer Chung’s ID when
he entered. However, Mr. Vue points out
that Officer Chung is clearly above the age of twenty-one, so security would
not necessarily check his ID. The ALJ
concurs - he had the opportunity to observe Officer Chung, and the Officer
appears obviously over 21.
Counsel for the City asserts that the
purpose of security is to deter wrongdoings from happening, so therefore, even
if Asian Cuisine did have security on January 20, 2007, then security must be
obvious. However, the condition imposed
on the licenses held by Asian Cuisine simply requires that security will be
provided on nights entertainment is scheduled until close. The City has not met its burden to show that
security was not present on January 20, 2007.
The Administrative Law Judge suggests
consideration of a reduction in the proposed fine, from $1500 to something
under $1000 for the violation of Licensee’s 1:00 a.m. closing restriction and
the violation of Condition #3 of the license. Counsel for LIEP suggests
the alleged violations merit a $1500 fine.
No specific evidence exists to suggest how much of the $1500 proposed
fine is attributable to each allegation, but it is logical that the fine would
be split equally among the three allegations, amounting to $500 per
allegation. Since the
Administrative Law Judge recommends that the allegation that no security was
present be dismissed, it may be appropriate to reduce the total fine by at
least $500. The Council may also wish to
consider yet a smaller fine than $1000, to help enable Asian Cuisine to afford
installation of more sophisticated surveillance.
R. C. L.
[1]
Ex. 2, Copy of License Group Conditions for Billy Neng Yang, d/b/a Asian
Cuisine, Condition #1.
[2]
Ex. 2, Copy of License Group Conditions for Billy Neng Yang, d/b/a Asian
Cuisine, Condition #2.
[3]
Ex. 2, Copy of License Group Conditions for Billy Neng Yang, d/b/a Asian
Cuisine, Condition #3.
[4]
Ex. 2, Copy of License Group Conditions for Billy Neng Yang, d/b/a Asian
Cuisine, Condition #4.
[5]
Ex. 2, Copy of License Group Conditions for Billy Neng Yang, d/b/a Asian
Cuisine, Condition #5.
[6]
Ex. 2, Copy of License Group Conditions for Billy Neng Yang, d/b/a Asian
Cuisine, Condition #6.
[7]
Testimony of Christine Rozek, Deputy Director, City of
[8]
Testimony of
[9] Licensee’s Ex. 9.
[10]
Testimony of
[11]
Testimony of
[12]
Ex. 5, Supplemental Police Report of Officer Phuong Chung.
[13]
Testimony of Officer P. Chung.
[14]
Testimony of Officer Chung.
[15]
Ex. 5, Supplemental Police Report of Officer P. Chung.
[16]
Testimony of C. Rozek.
[17]
[18]
Testimony of C. Rozek. The
only exception is for private after-hours parties during the holiday season, in
situations where a licensee has provided prior notice to the City. See
St. Paul Legislative Code §
409.07(d). There is no evidence that there was a sanctioned after-hours
party at the Licensee’s establishment on January 20, 2007.
[19]
Testimony of C. Rozek.
[20]
Ex. 6.
[21]
Ex. 7.
[22]
[23]
[24]
[25]
[26]
In fact, Officer Chung testified that he did not see anyone purchase beer after
1:15 a.m. when he entered. Licensee
credibly testified that Asian Cuisine does not serve alcohol after last call,
at 12:45 a.m.
[27] Ex. 2, Copy of Group License Conditions for Billy Neng Yang, Condition #3.