HomeMy WebLinkAboutCity Council Minutes 03-29-1993 Special 11
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HEARING TO CONSIDER REVOCATION OR SUSPENSION OF
OFF -SALE LIQUOR LICENSE OF KENNY'S LIQUOR, INC., 12
NATHAN LANE, WITH RESPECT TO LIQUOR LAW VIOLATION,
PUBLIC HEARING IN FRONT OF PLYMOUTH CITY COUNCIL
Transcript of proceedings before the
Plymouth City Council, Plymouth City Hall, 3400
Plymouth Boulevard, in the city of Plymouth,
commencing at 8:40 p.m. on March 29th, 1993.
APPEARANCES:
Laurie Rauenhorst, City Clerk
John Edson, Councilmember
Maria Vasiliou, Councilmember
Allen D. Barnard, Esq., Substitute City Attorney
Kim Bergman, Mayor
Dwight Johnson, City Manager
Carole Helliwell, Councilmember
Craig Gerdes, Director, Department of Public Safety
Officer Scott Streachek, Plymouth Police Department
William Melin, on behalf of Kenny's Liquor, Inc.
David Blood, on behalf of Kenny's Liquor, Inc.
ORIGINAL
REPORTED BY: STACI WILLIAMS, RPR
OLIVER, MITCHELL & MAVES REPORTING
1028 NORTHSTAR EAST
608 SECOND AVENUE SOUTH
MINNEAPOLIS, MINNESOTA 55402
612) 339-7593
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KENNY'S LIQUOR LICENSE HEARING 2
Whereupon, the following proceedings were duly had:
MAYOR BERGMAN: I'd like to reconvene
the meeting, please. The next item tonight is a
public hearing to consider revocation or suspension
of the off -sale liquor license of the Kenny's
Liquors at 12 Nathan Lane with respect to a liquor
law violation. With that I can just turn it over to
the city attorney. I guess this is not a public
hearing.
MR. BARNARD: That's correct.
MAYOR BERGMAN: Tell me how it works.
MR. BARNARD: Although it's listed as
a public hearing, technically this kind of
proceeding by law is considered an administrative
hearing. And it's basically a judicial -like
process, and the requirements in law are for each
side to have a full opportunity for a hearing before
this body, the city council, and the city council
then has the opportunity to make a decision about
the license. And it's shown in the agenda as a
hearing to consider revocation or suspension of the
off -sale liquor license of Kenny's Liquor, Inc., 12
Nathan Lane with respect to liquor law violation.
I've asked Staci Williams, a court
reporter, to be present and to report this
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KENNY'S LIQUOR LICENSE HEARING
Whereupon, the witnesses were duly
sworn under oath.)
MR. BARNARD: In this kind of a
of conduct the proceeding in the sense of acting
my job in any way to make any decisions about the
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proceeding, so it's only to make sure everyone has a
full opportunity to be heard. Typically the
proceeding begins by having the director of the
Department of Public Safety make a presentation by
the officer or officers who were involved state the
facts as they know them and then give the other side
the opportunity to cross-examine and to make any
presentation they wish, then to give each side the
opportunity to make a short closing statement if
they wish, and that closes the hearing and then the
city council can make whatever decision they're
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KENNY'S LIQUOR LICENSE HEARING Ell
empowered to by law. So if we can begin by the
director, please.
MR. GERDES: Mr. Mayor, Council
Members, Mr. Attorney, the city council passed a
resolution establishing this hearing on July 27th,
1992, and this hearing is in relationship to a
violation that occurred on July 27th, 1992, a sale
to a minor. Officer Scott Streachek from the
Plymouth Police Department is here to testify to his
observations at the time of that sale. I've
provided to the council --
MR. BARNARD: Can I interrupt you one
minute. When you say a name, since this is being
reported, you should spell the name.
MR. GERDES: For the record, I am
Craig Gerdes, G -e -r -d -e -s, I'm the director of
public safety for the City of Plymouth, and I
referenced Officer Scott Streachek. And, Scott, the
spelling of your name?
OFFICER STREACHEK: It's
S -t -r -e -a -c -h -e -k.
MR. BARNARD: Sorry to interrupt you.
MR. GERDES: No problem. Thank you.
Officer Streachek, as I mentioned, will report on
the events of that evening, and I have provided for
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KENNY'S LIQUOR LICENSE HEARING 5
the council in their packet a listing of previous
violation involving Kenny's Market. Although these
violations occurred prior to my hiring for the City
of Plymouth, they are a matter of record in the City
of Plymouth and I have located them within the
records and files of the City of Plymouth.
OFFICER STREACHEK: Good evening,
Mayor, Council Members. Again, I'm Officer
Streachek with the City of Plymouth. The matter in
question was July 27th, 1992, it was approximately
1223 hours when I was patrolling the Nathan Lane, 12
Nathan Lane lot. I observed a young male exit the
Kenny's Liquor store. I also observed a younger
female, I would estimate her age to be in her teens,
high school age, peeking around a corner waiting for
this male to come towards her. I approach -- I
exited my squad and approached these two. I asked
for identification of the male who had exited the
liquor store and had a bottle of alcohol with him.
He couldn't provide any type of Minnesota driver's
license, any picture identification. He just
verbally identified himself. That was as a Ryan
Alexander. I asked for his date of birth, I asked
for some type of physical identification. He had
provided me with a temporary or application for
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KENNY'S LIQUOR LICENSE HEARING 0
identification with the Minnesota Identification
Card. This identification when questioning him was
determined that his actual age was 20 instead of
21. I had given, went back into the Kenny's liquor
and asked the clerk there if he had purchased or
gave, sold alcohol to this individual. He had
stated yes. I asked if he had any type of picture
ID. The clerk had stated no, and he gave as a
rebuttal that the manager or owner by the name of
Bill had sold alcohol to this individual previously
and thought it was okay. I had cited the minor with
possession, also procuring and false identification,
and I had cited the clerk for the selling.
MR. BARNARD: I think someone from the
City should outline then what happened with the
legal proceeding.
MR. GERDES: The matter of the
citation was forwarded to the court, and if you'll
excuse me for a second, there was a court decision
with regard to the violation, and a guilty plea, and
the finding of the court was a suspended sentence
based on no future violations by the individual who
was cited.
MR. BARNARD: That was a misdemeanor
charge of illegally selling alcohol to a minor?
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KENNY'S LIQUOR LICENSE HEARING 7
MR. GERDES: That is correct.
MR. BARNARD: Okay. Unless there's
something else from the City, the representatives of
Kenny's, Inc. who are here have the right to ask
questions or cross-examine the two representatives
of the City, or if they don't wish to do that, they
can go ahead and make their own statement at this
time.
MR. MELIN: Mayor, ladies and
gentlemen of the council, my name is William Melin,
M -e -1 -i -n. I'm here on behalf of Kenny's this
evening, and I'd just like to say that these are
truly unfortunate circumstances that brings us
together this evening. Again I, this is the first
time I've gone through something like this so I am a
bit nervous. I would just like to say that on the
26th, Friday, I received the recommendations that
you've decided for, that you would like to decide
for in favor of Kenny's or not in favor of Kenny's.
I guess what I'd like to say is first I'd like to
mention that the gentleman Ryan that had purchased
had provided us with a falsified ID in the past.
Again, you know, not using this as an excuse but
just hopefully appealing to your understanding that
we did at least make an attempt in the past to
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KENNY'S LIQUOR LICENSE HEARING
Since 1987 it is our
What we had felt would be in
that's there consistently. And I guess what I'm
looking for or what I'm asking for is your
understanding or cooperation in making it possible
for us to make a smooth sale, a smooth transition of
ownership from ourselves to another party. And I
far as whether it be a suspension or a fine, I guess
I was hoping that whoever does make the final
determination would see it clear in their hearts to
maybe forego it, with us selling the location. We
are in process right now of selling the location to
another individual that, once he is approved for his
liquor license, will be buying the location. I
guess again what I'm appealing to is your sense of,
be it business or be it economy, if we are able to
sell the location to this other party, per your
permission I should say, we don't lose any taxable
income for the City. We're not the -- another
gentleman is able to go into business and start a
business for himself that way, and also we're not in
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KENNY'S LIQUOR LICENSE HEARING E
a situation where we lose revenue where we're, say,
fined $4,000 or the equivalent of making four
mortgage payments with no income coming in. I guess
that's our position. And I don't, I also would like
to ask for some clarification. Is this meeting the
meeting that will determine what happens?
MR. BARNARD: This is the meeting in
which the council will either decide, or they could
postpone the deciding, but this is the
administrative hearing on the liquor license.
MR. MELIN: Okay. I guess, you know,
I just hope that you'd, you know, you know, given
our past record or whatnot, I would just hope that
you would considerably favor helping us in selling
the location to someone that can be on-site to be
more demanding about the IDs and the carding,
allowing this transaction to go without a suspension
or a fine. And again thank you for your time.
MS. HELLIWELL: Mayor, can I ask
questions?
now?
MR. BARNARD: Sure.
MS. HELLIWELL: Do you have a buyer
Yes, we do. He is
He has already gone
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KENNY'S LIQUOR LICENSE HEARING 10
through the paperwork or the steps to get involved
with it. Currently he has been at the liquor store
getting familiar with the operations and learning
what there is to know about it. That gentleman --
MS. HELLIWELL: So the bank loan is
being processed then at this point or whatever he
needs to do to establish business?
MR. MELIN: Yes, whatever he needs to
do to establish business has or is in process of
being taken care of.
MS. HELLIWELL: What is the date that
you feel that this person would be able to assume
the business or purchase the business?
MR. MELIN: Approval, licensing
approval -- as a matter of fact, the gentleman is
here this evening if you'd like to meet him, but we,
you know, pending licensing approval -- and also the
contingency on the sale of the business is he is not
in a position where the location is shut down, loss
of revenue, as all of you could probably imagine, if
the location is shut down for a period of time,
customers that would frequent it for convenience
purposes may find another location to start
frequenting, so that's why we are, you know, asking
for your cooperation I guess.
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KENNY'S LIQUOR LICENSE HEARING 11
MR. BARNARD: Do you wish to have
someone else speak or make any other statement?
MR. MELIN: I don't believe so.
MR. BARNARD: Another gentleman stood
up with you and took the oath.
MR. MELIN: I again, because this is
something that is unfamiliar to myself, I spoke with
David, the gentleman that is looking to purchase,
the future or prospective owner, to attend this
evening just so he, if necessary, can meet you guys
or so you guys could get a feel for what is
happening.
MR. BARNARD: Do you have any other
questions or statements you'd like to make?
MR. MELIN: No.
MR. BARNARD: Okay.
MR. MELIN: Thank you.
MR. BARNARD: Do the City
representatives have any other statements?
MR. GERDES: I have not yet seen any
applications come through our office. I defer to
the city clerk perhaps to see if there's been an
application with the City yet.
MS. RAUENHORST: We have not received
an application.
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KENNY'S LIQUOR LICENSE HEARING 12
MR. GERDES: Based on the request of
the individual, I think they need to become aware of
the needs of the City's application process to
proceed on it.
MR. BARNARD: This gentleman with his
hand up, is he the prospective buyer?
MR. MELIN: Right. If I may -- or go
ahead, David.
MR. GERDES: That was mostly as a
point of information for them so they proceed
appropriately.
MR. MELIN: Yeah, that's I guess what
we're asking for, so we do it properly.
MR. BLOOD: Good evening. My name is
David Blood, B -1 -o -o -d, and the reason -- his
question -- the application of everything is done
except for the use and sales tax ID number. That
isn't, hasn't been permitted to me yet, and again I
just ask that the, you consider not closing Kenny's
down because it will, it will hurt and affect the
future business I do there.
MR. BARNARD: Okay. Is there anything
further from either side? If not, I'll submit it
back to the Mayor and the council.
MR. EDSON: I guess I do have one
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KENNY'S LIQUOR LICENSE HEARING
question, and that is can you explain what the
current ownership is?
MR. MELIN: It is Kenny's until
licensing is granted for David.
MR. EDSON: And you refer to having
somebody local operate it, you know, buy it and
operate it.
now?
Kenny's.
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MR. MELIN: That would be David.
MR. EDSON: Are you one of the owners
MR. MELIN: I'm supervisor for
MR. EDSON: And that's not local? You
have how many locations?
MR. MELIN: It's a corporation. We
have 25 separate locations, both be it grocery, gas
and liquor.
MR. EDSON: Okay.
MS. VASILIOU: Mr. Mayor?
MAYOR BERGMAN: Yes?
MS. VASILIOU: I would like to move
the resolution imposing the penalty for liquor law
violation against Kenny's and that resolution as
provided in our packet would be for a ten-day
suspension, and the license holder would be given
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KENNY'S LIQUOR LICENSE HEARING 14
the option of the additional 20 days suspension or
4,000 fine to the City of Plymouth, and if there is
a second, I would like to speak to it.
MR. EDSON: I will second.
MS. VASILIOU: Mr. Mayor, as an
ongoing member of the Wayzata -Plymouth Area Health
Commission, given the fact that this is the fourth
incident of a sale to a minor, I believe that it
in my situation -- to my way of thinking, a fourth
incident at one location is not acceptable. One
incident is not acceptable. I sympathize with the
new owner. I don't believe that this will be a
hardship. And that is the reason for my motion. In
the past the history has been that the funds from
the fine is paid to the City of Plymouth, and I
believe it's used for DARE activities or
alcohol-related education activities. The other
process that has been used is that the fine has been
shared among the four school districts. We have not
done that the last couple of violations because of
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KENNY'S LIQUOR LICENSE HEARING 15
the fact that we have the DARE drug program and we
have been keeping the funds administratively, so I
don't know if that is a policy. I know that's what
the council has always done before is divide it up
among school districts. So if it is a policy, I
would like to divert from that policy and have the
Public Safety Department retain the funds for the
DARE drug program.
MAYOR BERGMAN: So is that a separate
motion?
MS. VASILIOU: I guess it's just an
administrative --
MS. RAUENHORST: As I recall, during
the last violation you heard in 1990 there was a
motion by the council that was in minutes that to
set a future precedent it no longer, but I can also
indicate that in this motion as well with the
resolution.
MAYOR BERGMAN: That's fine. Okay we
have a motion and a second. Any more discussion?
Roll call.
MS. HELLIWELL: Mayor?
MAYOR BERGMAN: Yes?
MS. HELLIWELL: May I interject maybe
a brief statement that I understand too that you're
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KENNY'S LIQUOR LICENSE HEARING Iry
trying to sell the store, you're in the process of
selling the store and, I don't know, if this had
been, like, the first violation, you know, I think I
would have been more sympathetic, but this really is
the fourth violation. They seem to be running every
two years, and I know it's very difficult with the
picture ID, I just don't think you should sell
MR. MELIN: And in light of all this
business and do that but because we feel it's in
everybody's best interest that somebody that is
on -premise can do this. We are taking
Rne
infractions, and I guess what I would also like to
address is, yes, it is unfortunate that we've had
four previous, four total violations in the last
seven years. Unfortunately, we have made these
suspension and so forth, I would certainly hope we
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KENNY'S LIQUOR LICENSE HEARING 17
could at least table the issue to a later date where
we could have an attorney present and discuss this.
MAYOR BERGMAN: Okay.
MR. MELIN: Is that at all possible?
MAYOR BERGMAN: We have a motion and a
second so unless somebody wants to change the
motion.
MR. EDSON: I think that -- and I'm
sympathetic to them selling, I think that they may
have some legitimate, that may be a legitimate
solution to this problem. You also have the choice
here of, you know, there's a ten-day suspension and
then an alternative of a 20 -day suspension or a
4,000 fine. And if you're truly interested in
getting it sold, you can -- you know, the fine is a
viable alternative instead of having it closed for
30 days. So I think there is some solution there.
I think this is a serious situation and, you know,
four times is not an acceptable record.
MAYOR BERGMAN: I'd like to just for
the public's information too, as I look through this
report it's not like you're sending in sting
operators, you're not sending in teenagers to buy.
These are just happenstance when your fellows are
cruising in the squad, is that correct, four
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KENNY'S LIQUOR LICENSE HEARING 18
violations?
OFFICER STREACHEK: Mayor, I was just
patroling through the lot and I observed him, he did
appear minor to me.
MAYOR BERGMAN: So you can imagine the
odds of picking up these violations this way. It's
pretty unusual. I mean, you could sit at any liquor
store for eight hours and may never have that happen
to you. So, you know, good police work. But we do
also have, did we send anybody in on those type of
operations?
MR. GERDES: Mr. Mayor, we're
currently doing a tobacco -related operation of that
nature, and when we complete that we will be doing a
liquor operation of that nature. In those
particular cases we do in fact send letters to the
owners and operators that we will be doing a,
quote -unquote, "sting" type operation. In this
particular case, as Officer Streachek indicated, he
was on routine patrol when he made his observations
and subsequent citations.
MAYOR BERGMAN: Okay. We have a
motion and a second roll call.
MS. VASILIOU: Mr. Mayor, one point of
clarification. We do need to determine when the
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KENNY'S LIQUOR LICENSE HEARING 19
ten-day suspension would be, and I guess I would, I
defer to the city attorney. Mr. Barnard, would it
be, like, immediately or what do you recommend?
MR. BARNARD: You could set it to
begin immediately. You also have to deal with the
second, the 20 -day period because the resolution is
stated in the alternative. I don't know if Public
Safety would have had some specific time in mind.
MR. GERDES: I think it would be
reasonable, Your Honor, Members of the Council, to
give the business owner an opportunity to prepare
for this, and the date certainly could be set within
reason, two to three days, and then at that
determination on whether it's the 10 or 20 so -- or
30 or the fine based on their --
MS. VASILIOU: Since he is in the
interest of selling his business, then perhaps it
would be timely -- today is the 29th -- if maybe we
said beginning April 1st for ten days? Is it ten
business days? I mean, we're not open Sundays so
does Sunday count?
MR. BARNARD: It would be ten business
days.
MAYOR BERGMAN: He might be better off
with an immediate, though, if he's going to have it
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KENNY'S LIQUOR LICENSE HEARING 20
get over with.
MS. VASILIOU: I don't know if they're
prepared to close or not, and this is the point of
the Public Safety Director Gerdes, if I understood
correctly, so I guess I would make a substitute
motion to begin the revocation on April 1st, 1993
and continue for ten business days, and the
subsequent 20 days would be again on the 11th day if
he so chooses to take that option.
MAYOR BERGMAN: I'll second it.
MR. MELIN: If I may, could I just on
record say that I would appeal to somebody to at
least make a motion to allow this issue to be tabled
until the next meeting so we are able to discuss it
at a different time with the actual owners involved
with the situation as opposed to myself?
MAYOR BERGMAN: I don't think
anybody's interested to do that.
MS. HELLIWELL: Mayor?
MAYOR BERGMAN: Yes?
MS. HELLIWELL: See, this is a very
formal process. You know, I put a question to you:
Why is the owner and the attorney and so on not
here? I understand why you feel the need for an
attorney, everybody needs one these days, but why
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KENNY'S LIQUOR LICENSE HEARING 21
would you not have an attorney here today?
MR. MELIN: The owner is presently out
of town and we didn't realize that it was as formal
as it was. Like I stated, I didn't receive the
packet until Friday, and spoke with him on the
phone, and at that point he just said, you know,
talk to them and if, if need be, ask to have the
issue tabled is what, is what was conferred to
myself. And that's all I'm asking to do is to have
the matter tabled and, you know, we can at that
point when you guys resolve it, if you are willing
to grant the license one way or the other, we can
work that out with the new or the future owner of
the location.
MR. EDSON: Mayor?
MAYOR BERGMAN: Yes?
MR. EDSON: I think it's important to
note, the clerk informs me that the hearing notice
was mailed at least three weeks ago, that what he
received on Friday was the council packet which we
all received at the same time. So there was
adequate notice of this hearing.
MAYOR BERGMAN: We have a motion and
second on the amended motion. Roll call.
MS. RAUENHORST: Edson?
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KENNY'S LIQUOR LICENSE HEARING 22
MR. EDSON: Aye.
MS. RAUENHORST: Vasiliou?
MS. VASILIOU: Aye.
MS. RAUENHORST: Helliwell?
MS. HELLIWELL: Aye.
MS. RAUENHORST: Bergman?
MAYOR BERGMAN: Aye. Then we have a
main motion. Roll call.
MS. RAUENHORST: Edson?
MR. EDSON: Aye.
MS. RAUENHORST: Vasiliou?
MS. VASILIOU: Aye.
MS. RAUENHORST: Helliwell?
MS. HELLIWELL: Aye.
MS. RAUENHORST: Bergman?
MAYOR BERGMAN: Aye.
Record concluded at 9:05 p.m.)
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KENNY'S LIQUOR LICENSE HEARING
REPORTER'S CERTIFICATE
ss.
23
I hereby certify that I reported the
foregoing proceedings of the Plymouth City Council
on the 29th day of March, 1993, in Plymouth,
Minnesota, and that the witnesses were by me first
duly sworn to tell the whole truth;
That the testimony was transcribed by me
and is a true record of the proceedings;
That I am not a relative or employee or
attorney or counsel of any of the parties, or a
relative or employee of such attorney or counsel;
That I am not financially interested in the
action and have no contract with the parties,
attorneys, or persons with an interest in the action
that affects or has a substantial tendency to affect
my impartiality;
WITNESS MY HAND AND SEAL THIS 1st day of
April, 1993.
STACI WILLIAMS
Notary Public, Wright County, Minnesota
My commission expires 6-27-96
rH N•Yµyyy SiPtt
L. WILLIAMS } Gv2Y
96 OLIVER,
MITCHELL & MAVES REPORTING 612)
339-7593