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OAH No. 2-6020-19725-3 |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE CITY OF ST. PAUL
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In the Matter of the Cigarette/Tobacco License Held By Quality Food & Fuel Market Place, Inc. |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for hearing before Administrative Law Judge Raymond R. Krause (ALJ) on July 9, 2008, at the Ramsey County Courthouse, 15 West Kellogg Boulevard, St. Paul, Minnesota. The hearing was held pursuant to a Notice of Administrative Hearing dated June 17, 2008.
Rachel Tierney, Assistant City Attorney, appeared on behalf of the City of St. Paul (the City). Khaled Aloul, owner of the Quality Food & Fuel Market Place, Inc., appeared without counsel. Officer Christopher Byrne, Officer Todd Feroni, Habib Stamboulieh, Anan Barbarawi, and Christine Rozek also were present as witnesses. Exhibits 1-7 were accepted into evidence. The Office of Administrative Hearings record closed at the end of the hearing.
Prior to the start of the hearing, Mr. Aloul (Aloul or the Licensee) requested a continuance to obtain counsel. The Licensee had been notified of the violation and the penalty on May 29, 2008. The Licensee did not contact the City or the ALJ to request a continuance nor had he yet retained any counsel prior to the day of the hearing. Six witnesses had appeared for the hearing. The ALJ denied the request for a continuance.
1. Did the City prove by a preponderance of the evidence that cigarettes were sold to minors on May 8, 2008 by employees of the Quality Food & Fuel Market Place, Inc.?
The ALJ finds that the City did not.
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1. Mr. Khaled Aloul is the owner of Quality Food & Fuel Market Place, Inc. d/b/a Super USA Market (the Store). The Store is at 976 7th Street East in the City of St. Paul. The Store sells cigarettes, pop, and food items among other things.[1]
2. Prior to Mr. Aloul’s purchase of the Store, it had a reputation for illegal activity and frequent attention from police.[2]
3. The Store was licensed to sell cigarettes by the St. Paul Department of Safety and Inspections on or about April, 20, 2007.[3]
4. On July 26, 2007, the Store passed a cigarette compliance check.[4]
5. On February 19, 2008, the Store failed an undercover cigarette compliance check.[5] The clerk, at that time, was in training, did ask for identification, but became confused by the numbers and inadvertently sold cigarettes to a 15-year-old undercover decoy.[6]
6. The clerk and the Store were fined and the clerk was fired from employment with the Store.[7] The Store paid its fine.[8]
7. Officers Byrne and Feroni are police officers with the St. Paul Police Department. They are patrol officers assigned to the Eastern District and are on the afternoon shift.[9]
8. On the afternoon of May 8, 2008, the officers were patrolling near the Store. They paid particular attention to the Store because there had been previous reports of attempted robberies and drug sales near there, and other disturbances such as smashed glass doors at the Store itself.[10]
9. Their attention was drawn to two white males exiting the Store. The Store is in a primarily African-American neighborhood so the officers felt that a drug deal might be in progress. They saw the two males enter a car and drive out of the parking lot. They noticed something hanging from the rear view mirror and, on that pretext, stopped the vehicle. They asked for identification from the occupants of the car and determined that they both were 16 years old. The officers interviewed the two separately and asked them what they were doing in this neighborhood since their identification showed that they lived a distance away. According to the officers, the two minors said they had come to the Store to buy cigarettes. They offered the statement that the Store was known as a place that did not check identification for the purchase of cigarettes. The officers found a pack of unopened Camel cigarettes in a bag in the car. There were other items in the bag. The other items did not appear to have been opened either. One of the minors said he purchased the cigarettes from “a tall black man with glasses.” Officer Byrne confiscated the cigarettes. The minors were written citations for possession of cigarettes by a minor, the parents were called and the minors released.[11]
10. The officers took the cigarettes back to the station and submitted them to Property Locker # 5.[12]
11. Neither officer saw anyone actually purchase cigarettes.[13]
12. Neither officer went into the Store to confirm that the minors had purchased cigarettes there.[14]
13. Neither the officers nor anyone from the Department of Safety and Inspections interviewed anyone from the Store.[15]
14. The officers did not see any receipt that tied the cigarettes to the Store. The officers did not notice whether the bag in which the cigarettes were found said Super USA on it.[16]
15. Neither the officers nor anyone from the Department of Safety and Inspections checked the revenue stamp on the bottom of the pack of cigarettes to determine whether the cigarettes were purchased at the Store.[17]
16. Christine Rozek is the Deputy Director of the St. Paul Department of Safety and Inspections. As such, she is involved in most, if not all, adverse licensing actions by the City. It is the practice of the Deputy Director to determine from police reports whether she believes a license violation has occurred. If she believes a violation has been committed, she turns the matter over to the Office of the City Attorney for action. It is not necessarily her practice to further investigate beyond the police report.[18]
17. In this case, Ms. Rozek did not conduct an independent investigation, but relied entirely on the police report.[19]
18. Ms. Rozek turned this matter over to the Office of the City Attorney with a recommended fine of $400. This fine is consistent with the penalty matrix contained in St. Paul City Code Sections 310.05 and 324.11.[20]
19. Since its purchase by Mr. Aloul, the Store has been vandalized repeatedly. A glass door has been smashed several times and a food stamp machine has been broken. Mr. Aloul believes that this vandalism has been done by minors who are angry because he will not sell cigarettes to them.[21]
20. Habib Stamboulieh is an employee of the Store. He is “a tall black man.” His job is to watch for possible shoplifting, to require disruptive customers to leave, to call parents of underage customers who attempt to buy cigarettes and general security. He does not sell any products and does not know how to operate the cash register. He has reading glasses but does not wear them in the Store because his job does not require close reading.[22]
21. Mr. Stamboulieh was present and working on May 8, 2008, but does not remember the two minors who allegedly purchased cigarettes on May 8, 2008.[23]
22. Mr. Anan Barbarawi is a sales clerk at the Store. He is neither tall nor is he “a . . . black man.”[24]
23. Mr. Barbarawi was working as the only clerk on May 8, 2008. His position at the register is behind a glassed-in cubicle. He does not remember specifically the two minors who allegedly bought cigarettes at the Store.[25] Many underage persons come in every day and attempt to purchase cigarettes illegally. Mr. Barbarawi is aware that Mr. Aloul enforces a strict “no sales to minors” policy. He is aware that if he were to sell to a minor, he would receive a fine and probably be fired as was the trainee clerk was in March of 2008. He denies selling cigarettes to any minors.[26]
24. On May 29, 2008, the City sent a Notice of Violation to Mr. Aloul.[27]
25. On June 2, 2008, Mr. Aloul timely appealed and asked for an administrative hearing.[28]
26. On June 17, 2008, the City sent Mr. Aloul a Notice of Administrative Hearing, setting the hearing date for July 9, 2008.[29]
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1. This matter is properly before the City and the ALJ pursuant to St. Paul Legislative Code §§ 310.05, 310.06 and 324.11.
2. The City complied with all requirements of regulation and gave proper and timely notice to the Licensee.
3. The legal age for possession or purchase of cigarettes is 18 years of age.[30]
4. The City has not proven by a preponderance of the evidence that the Licensee or any employee of Licensee sold cigarettes to a minor on May 8, 2008.
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
Based upon these Conclusions, the Administrative Law Judge respectfully recommends that: the St. Paul City Council not impose a fine or take other adverse action against the license.
Dated: July 16, 2008
s/Raymond R. Krause
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RAYMOND R. KRAUSE Administrative Law Judge |
Reported: Digitally Recorded
This report is a recommendation, not a final decision. The St. Paul City Council will make the final decision after reviewing the record and may adopt, reject or modify the Findings of Fact, Conclusions and Recommendation contained herein. Pursuant to Section 310.05 of the St. Paul Legislative Code, the City Council’s final decision shall not be made until this Report has been made available to the parties to the proceeding and the Licensee has been provided an opportunity to present oral or written arguments alleging error on the part of the Administrative Law Judge in the application of the law or the interpretation of the facts and an opportunity to present argument relating to any recommended adverse action. The Licensee and any interested parties should contact Shari Moore, Saint Paul City Clerk, 290 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102, to ascertain the procedure for presenting argument.
Quality Food & Fuel, d/b/a Super USA is a convenience market in a “rough” neighborhood of St. Paul. Under previous ownership, it had a reputation for drug deals in the parking lot and areas surrounding it as well as other troubles that gave rise to frequent visits by police.
Mr. Aloul, the owner for the last two years, claims that he has tried to clean up that image and strictly enforce the rules against selling cigarettes to minors. He also claims that minors who are turned away sometimes become angry and cause trouble and engage in property damage to his store as a result. Although normally he would have only one clerk working during a shift, he has to employ a second person for security, to watch for theft, and to get troublemakers out of the store.
The Licensee is charged with selling cigarettes to minors. The only evidence introduced that ties the confiscated cigarettes to the Super USA are the secondhand statements of the minors that they bought the cigarettes there. There is no receipt, no identification of the bag as being from Super USA, no attempt to show that the cigarettes were sold by Super USA via the revenue stamp and no independent witness to the sale.
The officers’ recounting of their conversation with the minors must be given deference, however, there is no way to determine whether the statements made by the minors is truthful. They were not present at the hearing to testify or be cross-examined. On the date in question, Mr. Barbarawi and Mr. Stamboulieh were working at the store. Mr. Barbarawi is the sales clerk and is enclosed by a glass cubicle for protection. Mr. Stamboulieh is employed for the security role. The minors, who were stopped by police, said they bought cigarettes at the store from a “tall black man with glasses.” The only tall black man employed at the store is Mr. Stamboulieh, who does not sell anything, cannot operate the cash register and does not wear glasses on the job. Their statements, while consistent with each other, do not square with the fact that the only “tall black man with glasses” could not have sold them cigarettes and does not wear glasses on the job. There are many conceivable reasons why two nervous teenagers would make such statements under these circumstances. The fact that they made the statements is evidence but is in no way conclusive. Their hearsay statements were accepted as evidence but cannot be given so much weight as to prove the entire case for the City.
On the other hand, Mr. Aloul and his employees testified to the strict policy of not selling to minors and the actual enforcement of that policy by firing the previous clerk who violated it. There is also the direct testimony, under oath, by the clerk that he did not sell cigarettes to minors at any time.
The unsubstantiated, hearsay, and flawed statements of the minors, when weighed against the direct and uncontroverted testimony, under oath, of the Super USA employees and owner does not meet the City’s burden of proof. There is not one piece of eyewitness or documentary evidence to tie an unopened pack of Camels in a car to Super USA. There is simply not enough evidence to prove anything more than two minors had a pack of cigarettes in their possession. This is all the police felt they needed to establish and it is what they did establish. It was not their responsibility, as they saw it, to tie the cigarettes to the Super USA or any other store and they did not.
R. R. K.
[1] Testimony of Khaled Aloul.
[2] Test. of K. Aloul and Officers Christopher Byrne and Todd Feroni.
[3] Testimony of Christine Rozek.
[4] Ex. 1-1, test. of C. Rozek and K. Aloul.
[5] Id.
[6] Testimony of Anan Barbarawi.
[7] Id.
[8] Ex. 1-1, Ex. 3, test. of C. Rozek and K. Aloul.
[9] Test. of C. Byrne and T. Feroni.
[10] Id.
[11] Id., Ex.4-6.
[12] Test. of C. Byrne and T. Feroni, Ex. 4-6.
[13] Test. of C. Byrne and T. Feroni.
[14] Id.
[15] Test. of C. Byrne, T. Feroni and C. Rozek.
[16] Test. of C. Byrne and T. Feroni.
[17] Id., and test. of C. Rozek.
[18] Test. of C. Rozek.
[19] Id.
[20] Id.
[21] Test. of K. Aloul.
[22] Test. of Habib Stamboulieh.
[23] Id.
[24] Test. of K. Aloul and Anan Barbarawi.
[25] Id.
[26] Test. of A. Barbarawi.
[27] Ex. 5.
[28] Ex. 6.
[29] Ex. 7.
[30] Minn. Stat. § 609.685.