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	OAH 4-6020-19206-3

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE ST. PAUL CITY COUNCIL

In the Matter of Adverse Action Against All Licenses Held by Issam Alhuniti d/b/a Chicago Submarine at 614 Selby Avenue in St. Paul, Minnesota

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION

The above matter came on for hearing before Administrative Law Judge Bruce H. Johnson on September 27, 2007, at City Hall in St. Paul, Minnesota. The record closed at the conclusion of the hearing on that date.

Rachel Gunderson Tierney, 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) of the City of St. Paul (the City). Issam Alhuniti (the Licensee), owner of Chicago Submarine, 614 Selby Avenue, St. Paul, Minnesota 55102, appeared on his own behalf.

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 Tierney at the address above to learn the procedure for filing exceptions or presenting argument.

STATEMENT OF ISSUES

1. Did the Licensee violate St. Paul Legislative Code § 106.01 by obstructing the sidewalk without a sidewalk café license or proof of insurance?

2. If so, what sanction should the Saint Paul City Council impose on the Licensee’s restaurant license under St. Paul Legislative Code § 310.06(b)(6)?

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

FINDINGS OF FACT

1. The Licensee has held a license for the operation of a small deli in the City since 1997.[1] The license ((A) 0-12 Seats) allows the Licensee to maintain up to 12 seats for his customers inside the deli “Chicago Submarine.”[2]

2. The City does not allow any person or establishment to obstruct public sidewalks with any materials or encumbrances. The City provides, however, an exemption for sidewalk cafés. A food establishment may provide outdoor seating on the public sidewalk if the establishment notifies the City license inspector, and obtains a sidewalk café license and liability insurance for the sidewalk café.[3]

3. The Licensee has never obtained a sidewalk café permit or insurance for a sidewalk café.[4]

4. Kristina Schweinler is the senior license inspector with LIEP. On May 17, 2007, Inspector Schweinler visited Chicago Submarine and noticed tables and chairs set up on the sidewalk in front of the business.[5]

5. Inspector Schweinler spoke with the Licensee and informed him he needed to obtain a permit and proof of insurance before he could place seating on the sidewalk. She issued him a “License Inspections Notice,” which notified the Licensee that he needed to obtain a “sidewalk café license” at the cost of $31.00. The Licensee signed the Notice.[6]

6. The Licensee had suffered a number of hardships before he first received the License Inspections Notice. His infant daughter had been seriously ill, and he himself had undergone knee surgery and had had to close his deli for a number of months. As a result, it was financially difficult for the Licensee to purchase an additional sidewalk license or additional insurance for the sidewalk seating. On the other hand, it was because of those financial hardships that he believed he needed the additional seating to generate revenue.[7]

7. Inspector Schweinler paid a second visit to Chicago Submarine on June 28, 2007. Once again, there were tables and chairs set up on the sidewalk in front of the deli. From her City vehicle, she took photographs of the outdoor seating. The Licensee was inside the deli when she arrived. The Licensee saw her, walked out of the deli, approached her vehicle and spoke with her. Inspector Schweinler reminded him he had been ordered to remove the seating until he obtained the necessary sidewalk license. At that time she did not specifically identify herself as being a City inspector. [8]

8. The Licensee was not in the process of cleaning the alley adjacent to his deli at any of the three times Ms. Schweinler’s visited his business premises.

9. Inspector Schweinler visited Chicago Submarine a third time on August 17, 2007, and again noticed seating placed on the sidewalk in front of the deli. She had no contact with the Licensee during that third visit.[9]

10. On August 22, 2007, the St. Paul City Attorney’s Office sent the Licensee a “Notice of Violation” in which the Assistant City Attorney notified the Licensee of the City’s intent to take adverse action against him for encumbering the public sidewalk without a permit. Specifically, the Notice referred to the dates in May and June when Inspector Schweinler witnessed the seating on the sidewalk in front of the deli. The Notice provided the Licensee three options: 1) pay a $500 penalty; 2) admit the facts but contest the penalty in a public hearing before the St. Paul City Council; or 3) request a hearing before an Administrative Law Judge.[10]

11. On August 30, 2007, the Licensee notified Assistant City Attorney Tierney of his request for a hearing before an Administrative Law Judge.[11]

12. On September 11, 2007, Assistant City Attorney Tierney issued a Notice of Administrative Hearing, notifying the Licensee of the hearing before the Administrative Law Judge on September 27 at 9:30 a.m.

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 §§ 310.05-06.

2. The City 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.

4. St. Paul Legislative Code § 106.01 prohibits the encumbrances of public sidewalks without a license and proof of insurance.

5. The City has shown, by a preponderance of the evidence, that the Licensee obstructed the public sidewalk in front of his business with outdoor seating without a license or proof of insurance.

6. St. Paul Legislative Code § 310.06 (b) authorizes the Council to take adverse action against a licensee who violates a condition of the license or any provision of the Legislative Code. Adverse action includes a variety of disciplinary actions ranging from fines to license revocation.[12]

7. The City has shown, by a preponderance of the evidence, that the Licensee violated a provision of the Legislative Code by obstructing the public sidewalk without a license.

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 such action against the licenses of Chicago Submarine as the Council deems appropriate under the circumstances.

Dated: October 18, 2007

/s/ Bruce H. Johnson

BRUCE H. JOHNSON

Administrative Law Judge

Reported: Digitally recorded (no transcript prepared)

MEMORANDUM

The issue is whether the Licensee obstructed the City sidewalk without a sidewalk café permit or proof of insurance. Inspector Schweinler testified that on three different occasions she saw tables and chairs on the sidewalk in front of the Licensee’s deli. The Licensee admits he placed the tables and chairs on the sidewalk without first obtaining the requisite license and insurance. However, the Licensee argued that he should not be held in violation of an ordinance prohibiting persons from encumbering a City sidewalk without a permit.

First, the Licensee argued that he has complied with all licensing requirements since he first obtained his restaurant license in 1997, and that this is the first time he has ever been cited by the City, but the Licensee’s previous compliance does not excuse his current violation.

Next, the Licensee argued his family and financial hardships should excuse his violation. Though the ALJ is sympathetic to the Licensee’s situation, there is no hardship exception in the City’s ordinance that would allow the Licensee to maintain an outdoor seating area without a permit and proof of insurance. The ALJ notes that the fee for the sidewalk café permit is only $31.00, and the Licensee offered no evidence that the cost of obtaining additional coverage the City requires would be unreasonably high. The Licensee’s hardship argument is therefore also not persuasive.

Finally, the Licensee testified that after Inspector Schweinler first notified him of the violation in May 2007, he moved the tables from the sidewalk to the adjacent alley, and only repositioned the tables on the sidewalk when he cleaned the alley. The Licensee claimed that on those occasions he would return the tables to the alley, and that the cleaning process only took ten minutes. He testified that the times when Inspector Schweinler had visited his deli were all occasions when he had temporarily moved the tables from the alley to the sidewalk while cleaning the alley.

The ALJ did not find the Licensee’s testimony that he only placed tables on the sidewalk while cleaning the alley credible for a number of reasons. That the Licensee was cleaning the alley at the exact times of all three of Inspector Schweinler’s visits is too coincidental to be believable. Moreover, Inspector Schweinler testified that she did not see evidence that the Licensee was cleaning the alley on any of those three occasions. The evidence established that the Licensee was in his deli and not outside cleaning during Ms. Schweinler’s first visit on May 17, 2007. The Licensee himself testified that he was inside his deli and not outside cleaning when he saw the Inspector taking pictures from her vehicle on June 28, 2007. The photos taken in June and August show no evidence of the alley in the process of being cleaned;[13] the sidewalk and alley are not wet and crates appear to be stacked in the alley next to the deli entrance. Finally, even if the Licensee had only placed tables on the sidewalk while cleaning the alley, there is no de minimis exception in the ordinance. The Licensee admits he placed the tables on the sidewalk in front of the deli. Even if the ALJ accepted the Licensee’s argument that he left the tables there only for a matter of minutes, they would still constitute a violation of the sidewalk ordinance.

In short, the Licensee’s arguments are unpersuasive, and the ALJ finds that the City met its burden of proof in establishing the Licensee’s violation of the sidewalk ordinance. The record therefore supports imposition of an appropriate fine. At the hearing, the City argued the Licensee’s multiple violations should be a factor in considering the appropriate penalty. The ALJ notes the City only notified the Licensee of one violation. As such, only one violation should be considered in the determination of the appropriate fine.

B. H. J.

[3] Test. C. Rozek; St. Paul Legislative Code § 106.01.

[5] Testimony of Kristina Schweinler; Ex. 2.

[8] Test. I. Alhuniti; Test. of K. Schweinler; Exs. 1; 2; 3.