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Memorializing City Council action taken on February 2, 2010 sustaining adverse licensing action against all licenses held by V & HM Plus LLC d/b/a El Pantano Plus located at 586 Rice Street in the City of Saint Paul.
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WHEREAS, V & HM Plus LLC d/b/a El Pantano Plus (License ID # 20080002369) (hereinafter "licensee") located at 586 Rice Street in Saint Paul received a Notice of Violation dated September 1, 2010, which was amended on November 10, 2010 (hereinafter "Notice"); and
WHEREAS, the Notice alleged a violation of license condition number six which requires that
Security personnel shall be assigned to each entrance starting at 9:00 p.m. 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.
and
WHEREAS, the Notice also alleged a violation of license condition number seven which requires that:
Adherence to Strict Identification Requirements: El Pantano Plus will require proper picture identification from anyone who appears to be younger than 30 years old. Those without proper identification shall be denied entrance.
and
WHEREAS, licensee denied all the allegations and requested a hearing before an Administrative Law Judge; and
WHEREAS, a hearing was held before an Administrative Law Judge on November 16, 2010, at which each party was represented by Counsel and presented testimony; and
WHEREAS, the Administrative Law Judge issued a Report on December 29, 2010, in which the Administrative Law Judge issued Findings of Fact, Conclusions of Law, a Recommendation and a Memorandum; and
WHEREAS, the Administrative Law Judge found that there was insufficient proof that licensee had committed the violation in the Notice; and
WHEREAS, the licensee was given notice that a public hearing would be held before the City Council on February 2, 2011 at which time licensee would have an opportunity to present oral or written argument to the Council; and
WHEREAS, licensee did not file any exceptions to the report of the Administrative Law Judge; and
WHEREAS, the Department of Safety and Inspections filed exceptions to the report of the Administrative Law Judge; and
WHEREAS, at a public hearing on February 2, 2010, Council File # PH 11-2, the Council of the City of Saint Paul considered all the evidence contained in the record, the arguments of licensee's attorney at the public hearing, the Administrative Law Judge's Findings of Fact, Conclusions of Law, and Recommendations and the exceptions filed by the Department of Safety and Inspections; now, therefore, be it
RESOLVED, that the Council of the City of Saint Paul issues this decision based upon consideration of the record of the entire proceedings herein, including the hearing before the Administrative Law Judge, all the documents and exhibits introduced therein, the Findings of Fact, Conclusions of Law and Recommendation as referenced above, the exceptions filed by the Department of Safety and Inspections, and the deliberations of the council in open session of that hearing; and be it
FURTHER RESOLVED, that the Findings of Fact of the Administrative Law Judge issued on December 29, 2010, with the exception of Findings number 13, 18, and 20 in this matter are hereby adopted as the Findings of the City Council in this matter and be incorporated herein by reference; and be it
FURTHER RESOLVED, that the following additional Finding of Fact shall be adopted as Finding of Fact number 3a:
3a. Kristina Schweinler testified that the licensee was given a copy of the "Liquor Manual" which contains copies of license conditions and all city and state regulations related to the licensed activity. Specifically, the Liquor Manual includes a copy of Minn. Stat. § 340A.503, Subd. 6(a). Schweinler gave licensee a copy of the Liquor Manual and licensee signed a document affirming receipt of copy of the Liquor Manual.
and be it
FURTHER RESOLVED, that Finding of Fact number 13 be adopted as amended below:
13. The City maintains that Consular Identification Cards are not "proper I.D." within the meanings of Conditions 6 and 7 placed on El Pantano's License. and are not "proper I.D." under Minn. Stat. § 340A.503, Subd. 6 (a) which states:
Proof of age for purchasing or consuming alcoholic beverages may be established only by one of the following:
(1) a valid driver's license or identification card issued by Minnesota, another state, or a province of Canada, and including the photograph and date of birth of the licensed person;
(2) a valid military identification card issued by the United States Department of Defense;
(3) a valid passport issued by the United States; or
(4) in the case of a foreign national, by a valid passport.
and be it
FURTHER RESOLVED, that the following additional Finding of Fact shall be adopted as Finding of Fact number 14a:
14a. Alejandro Perez testified that 2 weeks after the August 14, 2010 incident, "Lopez" was in the establishment. Alejandro Perez allegedly asked "Lopez" to provide identification so licensee could turn it over to the City. Perez testified that the individual was cooperative and agreed he would give a statement. Perez claims that he wrote "Lopez'' name and phone number down, but the paper got lost: Perez wanted to photocopy the ID, but the was printer out of ink: and Perez claimed he could not take a photograph on his cell phone because the battery was dead. Perez stated that he remembers the individual gave a last name of "Jota". The identification was a Consular Identification.
and be it
FURTHER RESOLVED that Finding of Fact number 18 be adopted as amended below:
18. After the hearing, the Licensee submitted a photo and a surveillance video without any accompanying affidavit or other sworn document explaining their context or relevance, . According to a letter from licensee's attorney, both the photograph and the surveillance video were taken on November 20, 2010, of a person Mr. Parra recognized as the same person Officers Kammerer and Ryan had brought into the bar on August 14, as noted at Findings 12 and 14. That person is identified in the submission as "Abel Meza Sanchez."
and be it
FURTHER RESOLVED, that Finding of Fact number 20 be adopted as amended below:
20. On November 29, 2010, the City submitted Affidavits from Officers Kammerer and Ryan, indicating neither Officer recognizes the individual in the photograph identified as "Abel Maza Sanchez" submitted by counsel for El Pantano on November 23, 2010. The officers stated in their sworn affidavits, however, that the person in the photograph appeared older, larger and had more facial hair than the individual they remember from August 14, 2010.
and be it
FURTHER RESOLVED, that the Conclusions of Law of the Administrative Law Judge issued on December 29, 2010, with the exception of Conclusions number 6, 5, and 7 in this matter are hereby adopted as the Findings of the City Council in this matter and be incorporated herein by reference; and be it
FURTHER RESOLVED, that the Conclusion of Law number 5 be adopted as amended below:
5. The City has not demonstrated by a preponderance of the evidence that on the evening of August 13-14, 2010, the Licensee Violated Conditions 6 or and 7 of its On-Sale Liquor License by failing to require proper picture identification from anyone an individual appearing younger than 30 years old, by not denying entrance to a person who failed to present proper identification, or and by failing to check identifications cards of people an individual entering its establishment
and be it
FURTHER RESOLVED, that Conclusion of Law number 6 be adopted as amended below:
6. It is not appropriate to penalize the Licensee for a third violation of the conditions of its license, which would will result in the imposition of a $2,000 penalty and suspension of the license for ten (10) days because of the alleged failure to ask a patron "Lopez" for identification on the evening of August 13-14, 2010, that forms the basis for this appeal.
and be it
FURTHER RESOLVED, that a ten (10) day suspension of all licenses and a fine of $2,000.00 is imposed against all licenses held by V & HM Plus LLC d/b/a El Pantano Plus (License ID # 20080002369); and be it
FURTHER RESOLVED that the $2,000.00 fine be paid within 30 days of the passage and approval of this resolution; and be it
FURTHER RESOLVED that the license suspension shall begin at 1:00 a.m. on March 10, 2011 and end at 1:00 a.m. on March 20, 2011; and
FINALLY RESOLVED, that the Findings of Fact and Conclusions of Law of the Administrative Law Judge in this matter, as amended above, are hereby adopted as the Findings and Conclusions of the City Council in this matter.
A copy of this resolution, as adopted, shall be sent by first class mail to the Administrative Law Judge and to the license holder.