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Considering the Findings of Fact, Conclusions of Law, and Recommendation submitted by Administrative Law Judge Todnem concerning the cigarette/tobacco license held by Zakariya Abukhudeer, d/b/a The One Stop Market, LLC at 1541 Maryland Avenue East.
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WHEREAS, the Official Record from the Administrative Hearing on the Second Adverse Action is attached as:
Exhibit 1 - Official Record - OAH 23-6020-39016 ITM The One Stop Market LLC License Official Record,
Exhibit 2 - Official Record - eFile City SD Exhibit 10- ch10_2021_01_18 13_25_15, Exhibit 3 - Official Record - eFile City SD Exhibit 10- ch10_2021_01_18 12_38_34, Exhibit 4 - Official Record - eFile City Exhibit 18-2 - Video Clip
Exhibit 5 - Official Record - eFile City Exhibit 18-1 - Video Clip Exhibit 6 - Official Record - eFile City Exhibit 17 - Video Clip; and
Exhibit 7 - Official Record- Oah_23_6020_39016_202310130_125918_all chs Exhibit 8 - Official Record- Oah_23_6020_39016_20240308_085 (2)
WHEREAS, Zakariya Abukhudeer, d/b/a The One Stop Market, LLC (“Licensee”), holds a cigarette/tobacco license under License ID #20190001624 (“License”) for the premises located at 1541 Maryland Avenue East in Saint Paul (“Licensed Premises”); and
WHEREAS, Licensee has previously had an Adverse Action adopted against him (“First Adverse Action”), which related to the sale of single cigarettes and flavored tobacco products in violation of sections 324.07(a) and (f) of the Saint Paul Legislative Code (“SPLC”); and
WHEREAS, the First Adverse Action was heard by Administrative Law Judges (“ALJ”) LaFave on May 28, 2021, and Schlatter on July 25, 26, and 27, 2022, who found that Licensee had violated the SPLC as alleged; and who recommend an upward departure from the presumed $500 fine proscribed by the penalty matrix , up one box to $1,000; and
WHEREAS, on January 18, 2023, the City Council took into consideration the Report of the Administrative Law Judges on the First Adverse Action and adopted the findings therein, recorded as Resolution RES 23-10, which is herein incorporated as Exhibit 1, Pages 949 - 953; and
WHEREAS, after consideration of the ALJ recommendation for an upward departure, the City Council imposed a $1,000 penalty matrix for the violations committed in the First Adverse Action; and
WHEREAS, while the First Adverse Action was moving through the administrative process, a Second Adverse Action was noticed by the City through a Second Notice of Violation and Request for Upward Departure to Revocation (“Second NOV”) on March 24, 2021, which is herein incorporated as Exhibit 1, Pages 850 - 858; and
WHEREAS, the matter currently before the City Council is in regard to the Second Adverse Action alleged against the Licensee and also relates to the sale of prohibited flavored tobacco products in violation of SPLC §324.07 (f) (sale of prohibited flavored tobacco products on the dates of
January 18, 2021 and February 8, 2021), as well as violations of license condition # 2 (failure to take reasonable steps to discourage loitering), # 3 (failure to maintain video surveillance cameras), and SPLC §310.06 (engaged in or permitted a pattern or practice of conduct of failure to comply with laws reasonably related to the licensed activity or from which an inference of lack of fitness or good character may be drawn); and
WHEREAS, on January 31, 2023, after the first appearance became final, the City amended the Second NOV with an Amended Notice of Violation and Request for Upward Departure to Revocation that updated the License history for the Second Adverse Action, herein incorporated as Exhibit 1, pages 748 - 758; and
WHEREAS, the Licensee, through his attorney, requested a hearing before an Administrative Law Judge on the Second Adverse Action matter; and
WHEREAS, the matter was assigned to Administrative Law Judge Todnem (“ALJ Todnem”), and
WHEREAS, on July 14, 2023, the City filed a motion for summary disposition on the Second Adverse Action; and
WHEREAS, the hearing on that motion was held on October 13, 2023; and
WHEREAS, on January 12, 2024, ALJ Todnem granted summary disposition on the violations related to the sale of prohibited flavored tobacco products on February 8, 2021, in violation of SPLC §324.07 (f), and denied summary disposition with respect to the remaining violations alleged in the Second NOV; and
WHEREAS, the City dismissed the violations not related to the sale of numerous prohibited flavored tobacco products and continued to seek license revocation; and
WHEREAS, after the City’s dismissal the only remaining issue for determination was the appropriate penalty for the February 8, 2021, violations; and
WHEREAS, the City requested that ALJ Todnem certify the matter to the City Council, which licensee opposed; and
WHEREAS, on February 22, 2024, ALJ Todnem denied the City’s request for certification to the City Council; and
WHEREAS, on March 8, 2024, a hearing was held before the ALJ Todnem, the purpose of which was to develop evidence at to whether there were substantial and compelling reasons to upwardly depart to revocation of the Tobacco Shop License held by Licensee; and
WHEREAS, the Council has reviewed the evidence developed in this matter, including the photos and recording of the Administrative Hearing; and
WHEREAS, the Council understands that the Exhibits which ALJ Todnem reviewed included reports and photos prepared by Licensing Inspector Voyda, recording the February 8, 2021, violation (Exhibit 1, pages 867 - 876); and
WHEREAS, the Council has reviewed audio from the Administrative Hearing contained in Exhibit 8 with testimony from Department of Safety and Inspections Licensing Manager Eric Hudak, who testified under oath that:
a. Within the past 10 years, City Council moved to protect certain groups from exposure to tobacco products and ensure separation of flavored tobacco products by creating two separate license types for tobacco - a tobacco shop license and a tobacco product shop license (Testimony of Eric Hudak at 28:18).
b. Tobacco Shops may not sell flavored tobacco products (Testimony of Eric Hudak at 27:49).
c. Only Tobacco Product Shops may sell menthol and other flavored tobacco products (Testimony of Eric Hudak at 27:33).
d. Individuals under 21 are not allowed in tobacco product shops (Testimony of Eric Hudak at 27:44).
e. Adverse actions against tobacco licensees significantly increased after City Council revised ordinances which included increased penalties (Testimony of Eric Hudak at 29:05).
f. He is familiar with the Licensee (Testimony of Eric Hudak at 29:37).
g. The One Stop Market at 1541 Maryland location has a Tobacco Shop license and a Wireless License, but does not have a Tobacco Product Shop license (Testimony of Eric Hudak at 30:31).
h. He reviewed the abbreviated ALJ exhibits that were submitted for the penalty hearing (Testimony of Eric Hudak at 36:20).
i. He reviewed ALJ Exhibit 11-10, which was the penalty matrix that was referenced to determine Licensee’s penalty and from which the City recommended upward departure (Testimony of Eric Hudak at 37:20).
j. He was aware that this was the Second Adverse Action against the Licensee (Testimony of Eric Hudak at 38:00).
k. He was aware that the First Adverse Action was sustained and adopted by the City Council, as RES 23-10, with a $1,000 fine imposed on Licensee (Exhibit 1, Pages 949 - 953, Testimony of Eric Hudak at 38:45).
l. He was aware that the First Adverse Action on June 1, 2020, included:
a. 9 sales of single cigarettes on June 1, 2020.
b. 23 sales of prohibited flavored tobacco products on June 1, 2020.
c. Allowing smoking indoors in violation of the MN Clean Indoor Air Act on June 1, 2020.
d. The sale of two menthol cigarettes to a confidential reliable informant on July 20, 2020 (Exhibit 1, Pages 949 - 953, Testimony of Eric Hudak at 38:45).
m. He understood that the presumptive penalty for the February 8, 2021, violation was the penalty for the third box, which was a 10-day suspension and a $2,000 fine (Testimony of Eric Hudak at 39:20).
n. He understood that City Council can deviate from the presumptive penalty matrix if the City Council finds substantial and compelling reasons to do so and provides written findings for doing so (Exhibit 1, page 1025 Section 310.05(m), Testimony of Eric Hudak at 39:50).
o. After he reviewed the February 8, 2021, violation, he believed there were substantial and compelling reasons for upward departure (Testimony of Eric Hudak at 40:56).
p. He considered the prior June 1, 2020, and July 20, 2020, violations when he looked at the current request for adverse action (Testimony of Eric Hudak at 46:45).
q. He understood that the scope of the March 8, 2024, administrative hearing on the Second Adverse Action was related to whether this was an atypical case and whether there were substantial and compelling reasons for an upward departure to revocation (Testimony of Eric Hudak at 36:05).
r. In his opinion, the number of times that the Licensee had violated the provisions of the code a r e a s ubstantial and compelling reason for upward departure to revocation (Testimony of Eric Hudak at 42:55).
s. In his opinion, the blatant nature of the violations and the total disregard for ordinances and license requirements contributed to the substantial and compelling reason for upward departure to revocation (Testimony of Eric Hudak at 1:02:17).
t. In his opinion, the Licensee’s prior knowledge of prohibited products contributed to the substantial and compelling reason for upward departure to revocation (Testimony of Eric Hudak 43:07).
u. In his opinion, the Licensee’s prior knowledge that what he was engaging in was in violation of the SPLC contributed to the substantial and compelling reason for upward departure to revocation (Testimony of Eric Hudak at 47:11).
v. He believed these were serious violations that threatened public health and safety (Testimony of Eric Hudak at 43:12).
w. The fact that the violations in the Second Adverse Action were committed on February 8, 2021, less than 9 months after the violations committed in the First Adverse Action contributed to the substantial and compelling reason for upward departure to revocation (Testimony of Eric Hudak at 43:29).
x. The prior violations from the First Adverse Action on June 1, 2020, included the statement that “According to the City, DSI Licensing Manager Eric Hudak’s review of the June 1, 2020, footage revealed approximately nine transactions involving the sale of single cigarettes and approximately 23 transactions involving the sale of flavored tobacco products.” In his opinion, this was not a mistake on the part of the Licensee (Testimony of Eric Hudak at 45:35).
y. Judge Lafave’s Recommendation and Order on Motion for Summary Disposition refers to an incident on July 20, 2020, in which a CRI successfully purchased menthol cigarettes. Licensing Manager Hudak opined again that this violation was “certainly not a mistake” (Testimony of Eric Hudak at 46:10).
z. In his opinion, the fact that the February 8, 2021, violations occurred after a June 17 , 2020 , meeting with Licensee to talk about his prior violations for selling prohibited flavored products support his conclusion that Licensee’s later violations were not a mistake and therefore contribute to the substantial and compelling reason for upward departure to revocation in this Second Adverse Action (Testimony of Eric Hudak at 43:41).
aa. Licensee previously applied for a tobacco product shop license which would have allowed for the sale of flavored tobacco products. His application was denied by City Council due to, according to Licensing Manager Hudak’s recollection, the proximity of another tobacco product shop. Licensing Manager Hudak testified that said application and denial “certainly supports the fact that [Licensee] had prior knowledge that the items that they were selling were prohibited and those are factors that lead up to whether or not to request an upward departure (Testimony of Eric Hudak at 47:20).
bb. That the Licensee received his initial tobacco shop license on September 23, 2019 (Testimony of Eric Hudak at 1:29:14).
cc. That at the time of initial licensure, the City provides new and existing license holders with education on what they are allowed and not allowed to sell (Testimony of Eric Hudak at 53:12).
dd. That a violation was observed at Licensee’s place of business on June 1, 2020 (Testimony of Eric Hudak at 1:44:38).
ee. That upon observing a violation, an inspector will use that opportunity to reeducate. It is Mr. Hudak’s opinion that the inspector would have therefore provided further education upon observing the license violation on June 1, 2020 (Testimony of Eric Hudak at 1:25:25).
ff. That a meeting was held on June 17, 2020, at the Eastern District Police with Licensee, members of the police department, and Mr. Hudak to discuss violations that existed at Licensee’s premises. This included a discussion of tobacco (Testimony of Eric Hudak 43:49 and 1:42:00).
gg. That based on the prior education referenced in items (cc), (ee), and (ff), Mr. Hudak does not believe that Licensee’s subsequent violation on February 8, 2021, was a mistake (Testimony of Eric Hudak at 53:48).
hh. His opinion was that because most of the prohibited products were “obviously flavored”, Licensee did not mistakenly offer them for sale (Testimony of Eric Hudak at 56:52).
ii. That during an inspection of Licensee’s business on February 8, 2021, the inspector observed the violation and reported “In plain site located behind the counter/cash register were multiple flavored tobacco product violations. See attached photos - 20 total.” (Testimony of Eric Hudak at 57:46).
jj. That under SPLC Section 310.05(m) (2021), “the occurrence of multiple violations shall be grounds for departure from such penalties in the Council's discretion.” (Testimony of Eric Hudak at 1:01:28).
kk. That the prohibited flavored tobacco products discovered during the complaint inspection on February 8, 2021, were on their own and irrespective of any prior violation, supportive of a basis for upward departure (Testimony of Eric Hudak at 1:01:38).
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ll. That in Mr. Hudak’s opinion, Licensee showed blatant and willful disregard for City code in his sale of products that he knew were prohibited (Testimony of Eric Hudak at 1:02:20); and
WHEREAS, Council finds the testimony of Licensing Manager Eric Hudak credible and gives it great weight given his knowledge, training, history with licensing cases of a similar nature, and
WHEREAS, the Council has also reviewed the Report and Photographs of DSI Inspector Joseph Voyda which includes narrative and photos related to the prohibited tobacco products found at the Licensed Premises on February 8, 2021 (Exhibit 1, pages 867-876); and
WHEREAS, City Council agrees with the testimony of Eric Hudak and finds the need for stringent regulation of flavored tobacco products due to the health dangers caused by tobacco use and “the fact that flavored products entice underage individuals into smoking (Testimony of Eric Hudak at 1:47:15); and
WHEREAS, the Council understands that SPLC section 310.05(m) provides that the City Council “may deviate [from a presumptive penalty] in an individual case where [it] finds and determines that there exist substantial and compelling reasons making it more appropriate to do so”; and
WHEREAS, the Council understands that as part of the Second Adverse Action, the City argued that substantial and compelling reasons for upward departure to revocation existed based on the following facts:
a. The number of times that the provisions of the code related to the licensed activity had been violated.
b. The blatant nature of the violations and the total disregard for ordinances and license requirements.
c. The intentionality of Licensee’s violations as evidenced by his willful disregard of instructions provided by the City during an in-person meeting with Licensee on June 17, 2020, to discuss his prior violations for selling prohibited flavored tobacco products.
d. The fact that the February 8, 2021, violations occurred less than 9 months after the June 1, 2020, violations.
e. The fact that Licensee had received training as to the extent and limitations of the permissions granted by the tobacco shop license along with copies of the applicable ordinances related to his license regulations.
f. The danger that the possession and sale of these prohibited flavored tobacco products caused the minors under age 21. (Testimony of Eric Hudak at 43:10); and
WHEREAS, the record reflects that the June 1, 2020, violations adjudicated under RES PH 23- 10 included:
a. On June 1, 2020, 9 sales of single cigarettes.
b. On June 1, 2020, 23 sales of prohibited flavored tobacco products.
c. On June 1, 2020, allowing smoking indoors in violation of the MN Clean Indoor Air Act.
d. On July 20, 2020, the sale of two menthol cigarettes to a confidential reliable informant. (Exhibit 1, Pages 949 - 953); and
WHEREAS, Administrative Law Judge Suzanne Todnem issued Findings of Fact, Conclusions of Law, and Recommendation on June 12, 2024, under OAH 23-6020-39016 in the Matter of the Cigarette/Tobacco License held by Zakariya Abukhudeer d/b/a The One Stop Market, LLC for the premises located at 1541 Maryland Avenue in Saint Paul; and
WHEREAS, the Council understands that the Department is recommending that Council find error with the June 12, 2024, Findings of Fact, Conclusions of Law and Recommendation of ALJ Todnem; and
WHEREAS, the Council does not adopt the Recommendation of ALJ Todnem to impose a $1,000 matrix penalty; and
WHEREAS, after review of the record, the Council disagrees with the weight that ALJ Todnem placed on the evidence presented related to substantial and compelling reasons for upward departure; and
WHEREAS, the Council finds that ALJ Todnem failed to give adequate weight to Licensing Manager Eric Hudak’s testimony and the report and photos of Inspector Voyda showing the volume of prohibited flavored products at the Licensed premises on February 8, 2021; and
WHEREAS, Council finds that the version of Saint Paul Legislative Code § 310.05(m) in effect at the time of the violation provides a matrix of penalties for first, second, third and fourth appearances before the City Council; and
WHEREAS, the matrix penalties are:
a. for a first appearance, the matrix penalty is a $500 fine,
b. for a second appearance, the penalty is a $1,000 fine,
c. for a third appearance, the penalty is a $2,000 fine and a 10-day license suspension,
d. for a fourth appearance, the penalty is revocation of the license; and
WHEREAS, the Council believes that the penalty matrix outlined in Saint Paul Legislative Code
§310.05(m) is meant to be read as progressive and if an upward departure had occurred within the time frame allowed under the computation of time, the license should remain in the portion of the penalty matrix that the upward departure moved them to; and
WHEREAS, despite that understanding, the Council believes that regardless of where the Licensee may have sat on the penalty matrix, the facts of this case including the report and photos of Inspector Voyda and the testimony of Licensing Manager Hudak, support upward departure to revocation; and
WHEREAS, the Council finds that upward departure to revocation is warranted and consistent with the application of the upward departure tool in other, similarly situated licensing cases; and
WHEREAS, the Council believes that the record contains evidence of substantial and compelling reasons to upwardly depart to revocation; and now, therefore be it
RESOLVED, that the City Council finds that the testimony of Licensing Manager Hudak outlined above in sections a - ll, the report and photographs of prohibited tobacco products in the licensed premises on February 8, 2021 (Exhibit 1, pages 867-876), and the number of violations that the Licensee was penalized for related to the June 1, 2020 violations (Exhibit 1 pages 949-953 and pages 969 - 984) provide substantial and compelling reasons to depart upward and impose the penalty of revocation; and be it
FURTHER RESOLVED, that the City Council issues this decision based upon consideration of the record of the entire proceedings herein, which are included in the record on this matter;
FURTHER RESOLVED, that the Findings of Fact, Conclusions of Law, and Recommendation of Judge Todnem issued on June 12, 2024, under OAH 23-6020-39016 in the Matter of the Cigarette/Tobacco License held by Zakariya Abukhudeer d/b/a The One Stop Market, LLC for the premises located at 1541 Maryland Avenue in Saint Paul, are hereby adopted in part as the Findings of the City Council in this matter, with the amendments as referenced in Exhibit 9 “Amended Findings of Fact, Conclusions of Law, and Recommendation of Judge Todnem”; and be it
FURTHER RESOLVED, that City Council finds that the totality of the evidence contained in the record supports an upward departure to Revocation of the Tobacco Shop License held by Licensee for the February 8, 2021, violations; and be it
FINALLY RESOLVED, that the Tobacco Shop License held by One Stop Market is revoked.