OAH No

OAH No. 61-6020-19932-3

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE CITY OF ST. PAUL

In the Matter of Adverse Action Against All Licenses Held By Mazatlan, LLC, d/b/a Mazatlan

FINDINGS OF FACT,

CONCLUSIONS AND

RECOMMENDATION

This matter came on for hearing before Administrative Law Judge M. Kevin Snell (the ALJ) on November 7, 2008, at the Ramsey County Courthouse, 15 West Kellogg Boulevard, St. Paul, Minnesota, and November 18, 2008, at the Office of Administrative Hearings (OAH), 600 North Robert Street, St. Paul, Minnesota. The OAH record closed on December 8, 2008, upon receipt of the parties post-hearing briefs and closing arguments.

Rachel Tierney, Assistant St. Paul City Attorney, appeared at the hearing as attorney for the City of St. Paul (the City ). Boris Parker, Esq., Parker & Wenner, P.A., represented Mazatlan, LLC (Mazatlan) at the hearing. Also present on December 8, 2008, was the OAH contracted interpreter for the Spanish language, Viviana Szleifer.

STATEMENT OF THE ISSUES

1. Did the Respondent establish that it was prejudiced by an error in the identification of the date of the alleged violations in the City’s Notice of Violation and its Notice of Administrative Hearing?

The ALJ finds that the Respondent was not prejudiced by the error.

2. Did the City prove by a preponderance of the evidence that, on August 15, 2008, Mazatlan violated the conditions of its license by failing to wand and check the identification of all patrons entering the establishment?

Yes, the ALJ finds that the City did meet its burden of proof on this issue.

3. Did the City prove by a preponderance of the evidence that Mazatlan served alcohol to an obviously intoxicated person on August 15, 2008?

No, the ALJ finds that the City did not meet its burden of proof on this issue.

4. Does the ALJ have jurisdiction to reopen a resolution of the St. Paul City Council after more than two months have passed since it was approved by the mayor?

No, the ALJ does not have jurisdiction to reopen a final decision of the City Council.

Based on the evidence in the hearing record, the Administrative Law Judge makes the following:

FINDINGS OF FACT

Factual Background

1. Mr. Jorge Sanchez, and his wife Blanca Sanchez, are the owners of Mazatlan, LLC, d/b/a Mazatlan, which is located at 567 Stryker Avenue in the City of St. Paul. Mazatlan is a restaurant and bar that holds restaurant, entertainment, gambling, and liquor licenses issued by the City.^{^[1]}

2. On August 2, 2007, Mazatlan first received its liquor license.[2] Because of problems with the bar that previously operated at Mazatlan’s location, the Brown Derby, Matzatlan’s liquor license was granted with eight conditions imposed.[3] Condition number five states:

Security personnel shall be assigned to each entrance starting at 9 PM and remain until all patrons have left the licensed premises, which include the parking lots. Security personnel shall “wand” (using a metal detector) each patron and check all handbags and packages carried by patrons. Security personnel shall verify the age of patrons by checking state or federally issued identification cards (no picture I.D., no entrance). Customers re-entering the establishment shall be subject to the same security measures as customers entering the establishment for the first time.^{^[4]}

3. On August 10, 2007, Mazatlan staff received alcohol awareness training from a vendor recommended and approved by St. Paul Department of Safety and Inspections (DSI). Alcohol awareness training is designed to teach people how to recognize intoxication, what over-service is, how to check peoples’ identification and related skills.^{^[5]}

4. On September 13, 2007, Mazatlan received a seven percent liquor discount for sending its employees to alcohol awareness training.^{^[6]}

Failure to Wand and Check IDs

5. At all times on weekend evenings, in accordance with a security plan submitted to and approved by the City, no later than 9:00 p.m., Mazatlan’s standard operating procedures include:

a. The only door available for entrance is the rear, parking lot door. The front and other doors are locked to the outside and only available for emergency exit;

b. Four armed security guards (occasionally off-duty police officers) are on duty until closing, all wearing black shirts with the word SECURITY across the back of the shirt in large letters and in small letters on the front;

c. One security guard is posted at the interior entrance between the bar and the restaurant;

d. One security guard is posted at the interior of the front door;

e. One security guard is posted at the rear, entrance door, either just outside by the parking lot or just inside the door. This security guard is primarily responsible for checking identification and searching patrons;

f. One security guard is a “rover” who walks throughout the bar observing patrons, checking for intoxicated patrons and calling them cabs, and also from time to time assists and/or relieves the rear door security guard;

g. All patrons are “wanded” with a portable metal detector and all bags, purses and the like are searched. In addition, all males are all patted down to check for weapons, drugs and any other contraband.^{^[7]}

6. In addition, Mazatlan is equipped with surveillance cameras to record activities on the Mazatlan premises. The tapes are maintained for 30 days to allow DSI or the police to immediately request the tapes for review. Although the tapes of August 15, 2008 were made and were available, neither the police nor DSI requested those tapes for review. After 30 days, the August 15, 2008, tapes were recorded over in accordance with Mazatlan’s standard practice.[8]

7. One time, on February 18, 2008, a patron entered the establishment with a weapon when a new employee, a female server, let him in a non-entrance door. After investigation, no adverse action was taken. At all other times, Mazatlan security personnel have been successful in finding and preventing weapons, including knives and a crowbar, and other contraband from coming into Mazatlan. Typically, patrons with banned items are cooperative in placing such item in their vehicles.^{^[9]}

8. On October 29, 2007, and August 6, 2008, the City sent Mazatlan congratulatory letters for passing liquor compliance checks on October 12, 2007, and July 21, 2008, respectively.^{^[10]}

9. Responding to a complaint received by DSI that patrons were not being wanded before entering Mazatlan, on August 15, 2008, at approximately 9:45 p.m., undercover City vice detectives David Schoen and Craig Gromek, parked their unmarked vehicle and attempted to enter Mazatlan from the front door. The door was locked, so they went around to the rear of the building and proceeded into Mazatlan through the rear door. The security guard, David Budd, just outside in the parking lot nodded at and greeted them as they entered, but neither asked them for their identification, nor did he wand them or pat them down.^{^[11]}

10. Mr. Budd remembered detective Sergeant Schoen’s face, having seen him in Mazatlan on prior occasions, but he had no specific memory of him being there on August 15, 2008.[12]

Serving an Obviously Intoxicated Person

11. In the evening of August 15, 2008, in addition to the four security personnel, John Robertson was working at Mazatlan as the bartender. The owner, Jorge Sanchez, was also working that night. Mr. Sanchez, whose principal language is Spanish, also tends the bar and does so specifically when Mr. Robertson, who does not speak Spanish, needs Mr. Sanchez to wait on or translate for Spanish-speaking patrons who are difficult for Mr. Robertson to understand.^{^[13]}

12. Sergeant Schoen has been a police officer for 25 years, and has been attached to the Vice Unit the most recent 10 years. For approximately the past four years, Sergeant Schoen has officed out of DSI working principally with liquor, gambling and pawn shop compliance.^{^[14]}

13. As he often does, on August 15, 2008, Sgt. Schoen was conducting a series of undercover checks of bars for license condition compliance and responding to complaints. At each of several bars, both before and after visiting Mazatlan, including Billy’s on Grand, Station Four, The Wild Onion, and other bars on Grand Avenue, Sergeant Schoen ordered and “sipped” a beer during the time he was at each bar. Detective Sergeant Gromek drove the police car from location to location.^{^[15]}

14. After entering Mazatlan, Sergeants Schoen and Gromek went up to the horseshoe end of the bar opposite the entrance. Sergeant Gromek sat on the only bar stool available and Sergeant Schoen stood next to him. Both ordered beers from a bartender he described as “Mexican.” There were approximately 30 patrons in the bar, mostly Hispanic, and a disc jockey playing amplified music and talking to patrons using the microphone.”^{^[16]}

15. Sitting on a bar stool on the other side of Sergeant Schoen was a Hispanic male patron, 40 to 50 years old, who attempted to engage Sergeant Schoen in conversation, greeting Sergeant Schoen and referring to him as Rambo or John Wayne. At some point, the Hispanic patron had been served a beer. Sergeant Schoen attempted to ignore him, turned his back on him, because he wanted to talk to his partner and observe the rest of the bar.^{^[17]}

16. Sergeant Schoen had difficulty understanding the Hispanic patron because he talked in both Spanish and English, alternating from one language to the other, combining both languages. Sergeant Schoen observed that his speech was slurred and that he appeared unsteady on his bar stool. However, Sergeant Schoen was able to learn from him that he was a roofer enjoying a night out after working all week.^{^[18]}

17. After that, the Hispanic male patron got up and left the bar for a time and returned to his seat, staggering as he walked. As he reached for the beer he bumped it, spilling about one-third of the contents on the bar. The bartender saw the patron spill the beer, the patron apologized to the bartender for spilling the beer, the bartender handed him some napkins, and the patron wiped up the spilled beer. As a result of these observations, Sergeant Schoen concluded that the Hispanic male patron was intoxicated.^{^[19]}

18. The surveillance video would not have shown the patron spilling the beer.[20]

19. Sergeant Schoen could not see the security guard David Budd, who was stationed outside of the entrance door from his position at the bar. He did see one patron being checked for identification during the time he was at Mazatlan.[21]

20. Sergeants Schoen and Gromek left Mazatlan at 10:15 p.m.^{^[22]}

21. Sergeant Schoen stated on his incident report, referring to the Hispanic male, “In my opinion, he was very intoxicated and that was why he spilled the mug.”[23]

22. At Mazatlan, beer is and has always been served in either a plastic cup or the manufacturer’s bottle, not glass mugs with handles.[24]

23. Sergeant Schoen made no recommendation that criminal charges be made as a result of the incident and no criminal charges or investigation were initiated.^{^[25]}

24. Sergeant Schoen looks for the following outward signs of intoxication: red, bloodshot, or watery eyes; the strong smell of alcohol; slurred speech; unstable balance; and the amount of alcohol consumed.^{^[26]}

25. Mazatlan staff look for the same outward signs of intoxication as Sergeant Schoen, and additional indicators such as: loud or rowdy individuals; individuals that are too touchy; individuals that are bothering other patrons; how many times an individual goes to the bathroom; and how they are walking to the bathroom.^{^[27]}

26. On the night of August 15, 2008, neither the security personnel nor either bartender had turned away anyone or removed anyone for being obviously intoxicated.^{^[28]}

Procedural Findings

27. On August 4, 2008, the City of St. Paul sent a Notice of Violation to Respondent, alleging a violation of license conditions two and seven, and imposing a penalty of $500.00. It was sent to Respondent at the same address as appears on the DSI licensing records, and all previous and subsequent correspondence and notices, and pursuant to an Affidavit of Service.^{^[29]}Mr. Sanchez, testified that he did not receive the Notice, therefore Respondent did not respond to it.[30]

28. Pursuant to the August 4, 2008, Notice of Violation, on September 10, 2008, the City council met, without any appearance by the Respondent, and ordered Respondent to pay a matrix penalty of $500.00 within 30 days for violations of conditions two and seven of its liquor license.[31]

29. Christine Rozek, the Deputy Director of DSI, routinely reviews police reports for licensing implications. Ms. Rozek reviewed the report submitted by Sergeant Schoen concerning his visit to Mazatlan on August 15, 2008.^{^[32]}

30. After reviewing the police report and consulting with the City Attorney, Ms. Rozek recommended a fine of $1,000.00. This fine is based on the alleged violation of the conditional license being a second violation pursuant to the penalty matrix contained in St. Paul Legislative Code Section 310.05(m)(1).^{^[33]}

31. On September 5, 2008, the City of St. Paul sent a Notice of Violation to Respondent, alleging a violation of section 409.26(b)(4) on August 18, 2008, and imposing a penalty of $1,000.00.^{^[34]}

32. On September 12, 2008, Respondent, through its attorney, requested a hearing in connection with the alleged August 18, 2008, violation, noting:

[T]he factual allegations contained [in the Notice of Violation] are not consistent with the events of August 18, 2008. Consequently, our client is not in a position to do anything other than request a hearing before an Administrative Law Judge regarding the matter. It is my hope that as you and I receive more concrete facts regarding the events of August 18, 2008, that some resolution may be reached between our client and the City without the requirement of a formal hearing.^{^[35]}

33. On September 29, 2008, the City issued an Imposition of Fine letter to Respondent pursuant to its September 10, 2008, resolution.[36]

34. On October 3, 2008, the City issued a Notice of Administrative Hearing to the Respondent to be held on November 7, 2008, for alleged licensing violations that occurred on August 18, 2008.[37]

35. On October 27, 2008, the City of St. Paul sent a Notice of Intent to Suspend License to Respondent, alleging non-payment of the $500.00 fine issued pursuant to the September 29, 2008, Notice.^{^[38]}

36. On October 31, 2008, Respondent, through its attorney, requested a consolidated hearing on November 7, 2008, to address both the alleged August 15, 2008, violations, and the October 27, 2008, Notice to Suspend License.^{^[39]} The City declined to agree to consolidate the hearings or issue an Amended Notice of Administrative Hearing.

37. The Respondent did not pay the $500.00 fine.^{^[40]}

38. On December 2, 2008, Respondent, through its legal counsel, sent a letter to City Council member David Thune requesting that he move to reconsider the September 10, 2008, resolution.[41]

Based on these Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

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 Respondent, except for the initial typographical error specifying the date of the alleged violations in the Notice and Order for Hearing.

3. Minn. R. 1400.5600, subp. 5 provides in applicable part that:

Amendments sought after the start of the hearing must be approved by the judge.

4. Because the Respondent has failed to establish that it was materially prejudiced by the error in specifying the date of the violation, the ALJ grants the City’s request to consider the Notice and Order for hearing amended to allege the date of August 15, 2008, rather than August 18, 2008.

5. The City has proven by a preponderance of the evidence that the Respondent failed to comply with Condition #5 of its liquor license requiring it to “’wand’ (using a metal detector) each patron and . . . verify the age of patrons by checking state or federally issued identification cards (no picture I.D., no entrance).”

6. Minn. Stat. § 340A.502 prohibits any person from selling, giving, furnishing or in any way procuring “for another alcoholic beverages for the use of an obviously intoxicated person.”

7. Pursuant to section 409.26(b)(4) of the St. Paul Legislative Code it is a violation of a liquor license to sell alcoholic beverages to an intoxicated person.

8. The City has not proven by a preponderance of the evidence that any employee of Mazatlan sold, gave, furnished or in any way procured one or more alcoholic beverages to an obviously intoxicated person on the night of August 15, 2008 in violation of Minn. Stat. § 340A.502 and St. Paul Legislative Code § 409.26(b)(4).

9. Because the Office of Administrative Hearings has received no request for hearing services from the City, the ALJ is without jurisdiction to reconsider the underlying facts or circumstances or reopen the matter of the October 27, 2008, Notice of Intent to Suspend License. The City Council resolution of September 10, 2008, is a final determination for the purposes of this proceeding.

10. Pursuant to section 310.05(m)(1) of the St. Paul Legislative Code, the City will impose a $500.00 for the first violation of a condition placed on a license and $1,000.00 for the second violation of a condition placed on a license.

11. The ALJ adopts as Conclusions any Findings that are more appropriately described as Conclusions, and as Findings any Conclusions that are more appropriately described as Findings.

Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:

RECOMMENDATION

Based upon these Conclusions, the Administrative Law Judge respectfully recommends that: the St. Paul City Council:

1) DISMISS the allegation that the Respondent sold alcohol to an obviously intoxicated person; and

2) AFFIRM the fine and/or other adverse action against the license based on the Respondent’s failure to comply with Condition #5 of its liquor license.

Dated: January 7, 2009

s/M. Kevin Snell

M. Kevin Snell

Administrative Law Judge

Reported: Digitally Recorded

NOTICE

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 Respondent 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 Respondent 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.

MEMORANDUM

Serving An Obviously Intoxicated Person

While the City might have proved by a preponderance of the evidence that the Hispanic male patron was intoxicated, that is not the focus of the inquiry in this matter. The question is – was the patron obviously intoxicated before he was served a single beer in Mazatlan? The Respondent offered testimony of several witnesses that its staff did not observe anyone that was obviously intoxicated and does not remember either Sergeant Schoen or the unidentified Hispanic male. The City relies entirely on Sergeant Schoen’s impressions, which were formed immediately upon his arrival at the bar in Mazatlan.

The Minnesota Supreme Court has defined "obvious intoxication" as follows:

[T]here must be such outward manifestation of intoxication that a person using * * * reasonable powers of observation can see or should see that such person has become intoxicated.

Strand v. Village of Watson, 245 Minn. 414, 422, 72 N.W.2d 609, 615 (1955).

Aside from seeing the spill and handing the patron a few bar napkins to wipe up the beer that escaped the plastic cup, there is no evidence in the record that the bartender or any other Mazatlan staff observed the unknown Hispanic patron slur his speech or appear unsteady on the bar stool or staggering when he walked. Sergeant Schoen himself testified that the spilling of a beer or other drink alone is not conclusive evidence of intoxication. There must be sufficient evidence that at least one Mazatlan staff person did actually observe, or should have observed, using reasonable powers of observation, that the unidentified patron exhibited sufficient, obvious signs of intoxication. Although Sergeant Schoen’s testimony on what he himself observed is reasonably credible, there is no testimony that any Mazatlan staff observed anyone the evening of August 15, 2008, that exhibited sufficient signs of intoxication that they would be considered “obviously intoxicated.”

In addition, it would be reasonably expected that, if a patron was “obviously intoxicated” and so observed by a police officer, that the officer would make additional inquiries, including whether the patron was going to be driving and the officer asking if he would be allowed to administer a preliminary breath test (PBT). If those inquiries bore out the opinion of obvious intoxication, a criminal investigation would be merited. There is no evidence that Sergeant Schoen or his partner conducted any follow-up with the Mazatlan staff or the subject patron, such as: making inquiries about when the patron arrived, how long he had been there, whether he had been served anything more than the one beer he saw, or his apparent condition before and at the time he was served. Finally, Sergeant Schoen did not recommend a criminal charge and none have been filed.

For all of the foregoing reasons, the ALJ finds that there is insufficient evidence to conclude that Mazatlan served alcohol to an “obviously” intoxicated individual.

Violation of License Condition

The Respondent offered testimony about its security practices and procedures at Mazatlan. Although Mazatlan’s security procedures are thorough, and Sergeant Schoen even considers Mazatlan’s practice of patting down all males to be superior to the specific wanding requirement of its liquor license, it fails to overcome the testimony of Sergeant Schoen. Although a security guard remembered his face, none of the Mazatlan staff specifically remember Sergeant Schoen or his partner, Sergeant Gromek going into or being in the bar on August 15, 2008. None of Mazatlan’s witnesses testified specifically that both detectives were actually wanded or had their identification checked. Sergeant Schoen’s testimony is specific, credible and persuasive. He was frank and direct in his testimony, admitted when his memory was unclear to him, and his testimony was reasonable when compared to the non-specific testimony of the other witnesses.

Mazatlan argues that Sergeant Schoen’s testimony is not credible because: he misidentified the shirts that the security personnel wore as “blue” when in fact they were black; he misidentified the containers in which beer is served at Mazatlan as “mugs” when in fact beer is only served in plastic glasses or the manufacturer’s bottle. Nevertheless, these factors fail to bear on the issue of whether Mazatlan’s door security failed to follow the specific requirement of wanding and checking the identification of entering patrons. However, there is insufficient evidence to conclude that other patrons were not wanded and their identification not checked. Sergeant Schoen testified that, from where he was at the bar, he could not see the security guard stationed just outside of the door in the parking lot.

Therefore, the City met its burden, showing by a preponderance of the evidence, that neither Sergeants Schoen nor Gromek were wanded or had their identification verified on August 15, 2008, before they entered Mazatlan. This is a violation of Condition #5 of Respondent’s liquor license.

The September 10, 2008, resolution of the City Council

The St. Paul Legislative Code section 6.07 provides, in applicable part:

Unless otherwise required by law, resolutions shall become effective upon passage by the council and approval by the mayor or council override of a mayoral veto.

Section 6.08 of the St. Paul Leg. Code provides, in applicable part:

If the mayor neither signs nor vetoes the measure within five (5) business days, it shall be deemed approved.

The Council imposed a $500.00 fine, which is the matrix penalty for a first appearance for a licensing violation. There was no mayoral veto, therefore the resolution is deemed approved by the mayor.

Appendix A-1, Rule 14(h), of the St. Paul Leg. Code provides, in applicable part:

When a question has been voted upon it shall be in order for any member who voted on the prevailing side to move a reconsideration at the same or the next following regular council meeting occurring thereafter.

On December 2, 2008, Respondent, through its legal counsel, sent a letter to City Council member David Thune requesting that he move to reconsider the September 10, 2008, resolution. There is no provision in the Saint Paul City Carter, Legislative Code or Administrative Code to reverse or reconsider a City resolution after more than two and a half months have passed since the resolution took effect.

For purposes of this proceeding, the September 10, 2008, resolution of the City Council is a final determination on the merits, and constitutes a second appearance for purposes of the City’s penalty matrix.

The ALJ has no jurisdiction or authority to reopen that determination in this matter. The Office of Administrative Hearings and the ALJ are, at this time, without authority to continue this matter for reconsideration of the City’s final determination on the merits.

Misidentification of the date of the alleged violations in the Notices

The Notice of Administrative Hearing is similar to pleadings in a civil case. Minn. R. Civ. Pro. 15.01 allows pleadings to be amended by leave of the court and directs courts to grant leave freely. The major consideration is whether there is prejudice to the opposing party.[42] Prejudice is presumed where an amendment would raise a new issue, would require additional discovery and postponement of trial.[43] The burden of proving prejudice is on the objecting party.[44]

Respondent claims that it was unfairly prejudiced in preparing its case because of the use of August 18, 2008, rather than the actual date of August 15, 2008, in the Notice of Violation and the Notice of Administrative Hearing. The primary complaint stems from the fact that the surveillance tapes for August 15, 2008, had been recorded over and were no longer available when its counsel received the police report, along with other discovery and documents, on or about October 8, 2008, that correctly identified the date in question as August 15, 2008.

Previously, Sergeant Schoen had been asked by DSI to verify another allegation of overservice of alcohol to a Mazatlan patron. Because of the poor quality of the tapes, he had only been able to verify that the patron had been at the bar, not whether or not she exhibited signs of obvious intoxication. Similarly, in this case, Sergeant Schoen testified that the surveillance tapes would not have shown the Hispanic male spilling some of his beer. This evidence suggests that it would be unlikely that the August 15, 2008 tapes would show whether or not the unidentified Hispanic male exhibited obvious signs of intoxication.

In addition, Respondent alleges that it spent considerable time attempting to piece together evidence during the month it believed the allegations related to August 18, 2008.

Here, the error did not raise any new issues, and, as evidenced by the extremely well-prepared case presented by Respondent and its counsel at the November 7 & 18, 2008 hearings, there was no need for additional discovery or additional postponement of the hearing. The ALJ was unable to discern any material prejudice to Respondent due to the initial misidentification of the date of the alleged violations. The Respondent did not meet its burden to show material prejudice.

Therefore, the ALJ had determined that it is appropriate to grant the City’s motion to consider that the Notice of Administrative Hearing has been amended to indicate the correct date of August 15, 2008 for the alleged violations.

Conclusion

Because the City failed to prove by a preponderance of the evidence that the unknown Hispanic male was obviously intoxicated on the night of August 15, 2008, when served one beer by the Mazatlan bartender, the Administrative Law Judge recommends that the City dismiss this alleged violation.

Because the City did show by a preponderance of the evidence that the Respondent failed to check the identification and wand Sergeants Schoen and Gromek the evening of August 15, 2008, the Administrative Law Judge recommends that the City affirm this violation and impose a fine or other appropriate adverse action.

M. K. S.

[1] Testimony of Jorge Sanchez and Christine Rozek, Deputy Director, DSI; Ex. 2.

[3] Ex. 3, testimony of John Robertson and C. Rozek.

[5] Ex. 2-1, test. of J. Sanchez and C. Rozek.

[7] Testimony of David Budd, Javier Ortiz, Steve Stephen, J. Sanchez, and C. Rozek; Ex. 2-1.

[8] Ex. 3, test. of J. Ortiz, J. Sanchez, and C. Rozek; Ex. 2-1.

[9] Test. of D. Budd, J. Ortiz, S. Stephen, J. Sanchez, and C. Rozek; Ex. 2-1.

[11] Testimony of Sgt. David Schoen and C. Rozek.

[20] Id., Sergeant Schoen had been previously asked by DSI to verify another allegation of overservice of alcohol to a Mazatlan patron. Because of the poor quality of the tapes, he had only been able to verify that the patron had been at the bar, not whether or not she exhibited signs of obvious intoxication. Based on that experience, he was of the opinion that the August 15, tapes, had they been available, would not have shown the spilling of the beer.

[24] Test. of David Budd, Javier Ortiz, Steve Stephen, and J. Sanchez.

[27] Test. of D. Budd, J. Ortiz, S. Stephen, and J. Sanchez.

[40] Exs. 12 & 13, test. of C. Rozek & J. Sanchez..

[42] McDonald v. Stonebraker, 255 N.W.2^nd 827, 830 (Minn. 1977).

[43] Sheehan v. St. Peter’s Catholic School, 188 N.W.2^nd 868, 871 (Minn. 1971); Metag v. K-Mart Corp., 385 N.W.2^nd 864, 866 (Minn. App. 1986); pet. for rev. denied (Minn. June 23, 1986).