HomeMy WebLinkAbout2.b. Liquor Regulations - Penalty MatrixROSEMOUNTEXECUTIVE SUMMARY
CITY COUNCIL
City Council Work Session: March 10, 2010
AGENDA ITEM: Liquor Regulations — Penalty Matrix
MV=1A-
PREPARED BY: Gary Kalstabakken, Chief of Poli e
VO'
Amy Domeier, City Clerk
AGENDA NO.
ATTACHMENTS: Spreadsheet — Draft Matrix and
Lakeville's Matrix/Code, City Attorney
APPROVED BY:
Comments
RECOMMENDED ACTION: Discussion
BACKGROUND
Rosemount City Code 3 -1 regulates and licenses liquor establishments within the City. Minnesota State
Statue 340A regulates liquor on a state wide basis and provides the authority and limitations that cities
have to impose penalties when a violation of a liquor regulation occurs. MSS only provides the maximum
of penalties that may be imposed.
ISSUE
The City has not adopted a presumptive penalty matrix for violations of liquor regulations. Without a
penalty matrix each violation is considered upon the totality of the circumstances involved. Even absent a
matrix the penalties imposed in prior cases do provide guidelines when penalties are set for new cases.
Presumably, if there are no unusual circumstances a similar penalty is likely to be imposed. This approach
has worked quite well but the exceptions have been notable. Two cases were taken to a hearing officer
upon the request of the license holder. Although both cases focused upon the look back period and
penalty being proposed, the reasons were different. The opinions of the hearing officers were also quite
different. In the first opinion, the Rosemount Liquor case, the hearing officer found that the City had
adopted a 36 month look back period and his findings also indicated that the hearing officer felt the
penalties imposed by the City were severe. The second opinion was the Applebee's case. In that instance
the hearing officer essentially stated that even if the City had a 36 month look back period it did not limit
the penalty that the City may impose in any case. The hearing officer went on to say that the City may
impose up to the statutory maximums for any violation.
Over the last ten years some cities have begun to adopt presumptive penalty matrixes. The matrix lists the
penalty that is likely to be imposed for a violation and the period that will be used to determine which
penalty, i.e. first, second, etc. the violation will be considered. While the matrix does establish a
presumptive penalty, each City's Code also includes a clause to clarify that the matrix only is a guideline
and the Council may impose a penalty that is different from the presumptive penalty based upon the
circumstances of the violation.
The penalties established in matrixes adopted by cities are varied in both the penalties and the look back
periods established. Look back time periods range from two (2) to five (5) years and some increase the
time period if violations continue at a business.
Penalties established in a matrix also vary based upon the type of violation that occurs. The most serious
violations typically result in a license revocation. This includes violations such as commission of a felony
related to the license, sale of alcohol while license is under suspension or sale of intoxicating liquor where
the license held is for 3.2 malt liquor and wine. Another violation that is often treated more severely is
refusal to allow inspectors (building, fire marshal, food) or police officers on the premises to inspect the
premises. Most often other violations are considered equal and penalties are set accordingly. This
includes the violations of service to under age persons, sales to obviously intoxicated person, serving or
allowing alcoholic beverages outside the licensed premises, etc. The most common violation for which
penalties are imposed is service to under age person, which is most often discovered during compliance
checks.
Some cities have also adopted a "Best Practices" program for liquor license holders. While the particulars
to the programs vary slightly, one of the incentives included in the program for participants is a reduction
in the penalty imposed if a violation does occur. However, each program also removes the licensee from
the Best Practices program if violations occur repeatedly.
Participation in the program typically requires the business to agree to provide training and have policies in
place for identification of purchasers. The training is sometimes provided by the police department but
other training programs may be approved that meet the requirements of Best Practices. Additional
components of a program are left to the individual businesses to select and may include automated ID
scanning system use, internal compliance check programs and reward programs.
To assist in the discussion of the Best Practices, staff is conducting a survey of all current liquor license
holders within the community. The intent of the survey is to determine the number of businesses that are
already following significant portions of a best practices model. Results from the survey will be tabulated
prior to the meeting. A Best Practices matrix is not included but can easily be created if a presumptive
penalty is established for non -Best Practices.
SUMMARY
Council is asked to discuss the concept of a penalty matrix and a Best Practices program for the City Code
regulating liquor license holders.
Attached is a penalty matrix that is based upon the history of penalties imposed in the City and a penalty
matrix from the City of Lakeville. The Lakeville matrix is included because it is relatively new, having been
adopted in September 2009 and it also has penalties that are consistent with the average of other cities.
OA
ORDINANCE NO. 858
CITY OF LAKEVILLE
DAKOTA COUNTY, MINNESOTA
AN ORDINANCE REGULATING THE SALE OF ALCOHOL AND
ESTABLISHING PRESUMPTIVE CIVIL PENALTIES FOR LICENSE HOLDERS
THE CITY COUNCIL OF THE CITY OF LAKEVILLE, MINNESOTA ORDAINS:
SECTION 1. Section 3 -1 -14-4 B of the Lakeville City Code is amended as follows:
B. Best Practices Program: The best practices program is a program offered by the
City of Lakeville with the intent to eliminate sales of alcohol to youth. It is a
voluntary program offered to liquor establishments in the City. The program offers
incentives to the licensees to undertake certain practices believed to be helpful in
avoiding sales to minors. Establishments participating in the best practices program
will benefit. Specially trained officers will .provide training to participating license
holders. The officers provide a training program targeting illegal sales of alcoholic
beverages to persons under the age of twenty -one (21). Participating license holders
will also be given the advantage of a different set of presumptive penalties. Those
who choose to participate in the program will have the opportunity to enroll anytime
during their licensure period and at the time of their license renewal. The licensee
will indicate in writing to the Lakeville Police Department their intent to participate.
The first four (4) items in the grid are mandatory. The licensee must choose items
from the list of electives to equal a total of sixty (60) points. The City will conduct
random compliance checks to verify compliance.
Doc. #146587
EBK — 7/14/09
R uired Items
Inspection of records to verify compliance
Minimum of 75 percent of all alcohol selling, employees trained by
Lakeville Police Department or an alternate training program
roved by the Lakeville Police Department
Internal program in place for ongoing training of new and current
alcohol sellin employees
Policy requiring identification checks for anyone appearing to be
40 or under
Points
Electives
20
Participation in TIPS or similar (City approved) training program —
75 percent of alcohol serving employees certified
10
Internal employee reward and recognition program (program to
reward any employee who catches any underage customer
attempting to purchase alcohol
10
Approved internal compliance check program
Doc. #146587
EBK — 7/14/09
10
Automated identification card scanners stem
20
Automated identification card scanner system integrated into
4th
register system'
10
Prearrangement to meet immediately on violations (meet with
Violation
Police Department and City Staff immediately instead of waiting
Commission
for criminal court proceedings)
10
Policy requiring identification checks for every alcohol transaction
regardless of apparent age
10
Prearrangement to work with police on preventing secondary
alcohol sales
10
Minimum age of 21 for employees selling alcohol products
10
Use of an application for employment that requires disclosure of
N/A
criminal history information, previous convictions for crimes
related to serving alcohol, and a commitment not to hire persons
with relevant criminal convictions
Note: 'Cannot do both automated identification card scanner system and automated
identification card scanner system integrated in to register system.
SECTION 2. Section 3- 1 -14 -4 C of the Lakeville City Code is amended as follows:
C. Presumed Penalties For Violations:
1. For a licensed establishment enrolled in the City's best practices program at the
time of the violation, the presumed penalties for violations are as follows (days
below indicate consecutive days' suspension):
Type Of
ist
2°
3rd
4th
Violation
Violation
Violation
Violation
Violation
Commission
of a felony
related to the
Revocation
N/A
N/A
N/A
licensed
activity
Sale of
alcoholic
beverages
Revocation
N/A
N/A
N/A
while license
is under
suspension
Sale of
alcoholic
beverages to
underage
person:
2
- on -sale
$500
$750 and 3
$1,000 and
Revocation
intoxicating
days
6 days
liquor
- on -sale beer
$500
$750 and 3
$1,000 and
Revocation
and wine
days
6 da
- off -sale 3.2
$500
$750 and 3
$1,000 and
Revocation
beer
days
6 days
Sale of
$500
$750 and 3
$1,000 and
Revocation
alcoholic
days
6 days
beverages to
obviously
intoxicated
arson
After hours
$500
$750 and 3
$1,000 and
Revocation
sale of
days
6 days.
alcoholic
beverages
After hours
$500
$750 and 3
$1,000 and
Revocation
display or
days
6 days
consumption
of alcoholic
beverages_
Refusal to
$2,000 and
Revocation
N/A
N/A
allow
6 days
governmental
inspectors or
police
admission to
inspect
remises
Illegal
$500
$750 and 3
$1,000 and
Revocation
gambling on
days
6 days
premises
Failure to
$500
$750 and 3
$1,000 and
Revocation.
take
days
6 days
reasonable
steps to stop
person from
leaving
premises
with
alcoholic
beverages
Sale of
$2,000 and
Revocation
N/A
N/A
intoxicating
6 days
Violation
Violation
Violation
liquor where
only licensed
for 3.2
Revocation
N/A
N/A
N/A
percent malt
liquor
The penalty for violations without a presumptive penalty shall be determined by the
City Council.
2. For licensed establishments not enrolled in the City's best practices program at
the time of the violation, the presumed penalties for violations are as follows
(unless otherwise specified, numbers below indicate consecutive days'
suspension):
Type Of
1$`
2 nd
3 rd
4
Violation
Violation
Violation
Violation
Violation
Commission
of a felony
related to the
Revocation
N/A
N/A
N/A
licensed
activity
Sale of
alcoholic
beverages
Revocation
N/A
N/A
N/A
while license
is under
suspension
Sale of
alcoholic
beverages to
underage
person:
- on -sale
$1,000
$1,500 and
$2,000 and
Revocation
intoxicating
6 days
12 days
liquor
- on -sale beer
$1,000
$1,500 and
$2,000 and
Revocation
and wine
6 days
12 days
- off-sale 3.2
$1,000
$1,500 and
$2,000 and
Revocation
beer
6 da s
12 days
Sale of
$1,000
$1,500 and
$2,000 and
Revocation
alcoholic
6 days
12 days
beverages to
obviously
intoxicated
person
After hours
$1,000
$1,500 and
$2,000 and
Revocation
sale of
6 days
12 days
alcoholic
beverages
After hours
$1,000
$1,500 and
$2,000 and
Revocation
display or
6 days
12 days
consumption
of alcoholic
beverages
Refusal to
$2,000 and
Revocation
N/A
N/A
allow
12 days.
governmental
inspectors or
police
admission to
inspect
remises
Illegal
$1,000
$1,500 and
$2,000 and
Revocation .
gambling on
6 days
12 days
remises
Failure to
$1,000
$1,500 and
$2,000 and
Revocation
take
6 days
12 days
reasonable
steps to stop
person from
leaving
premises
with
alcoholic
beverages
Sale of
$2,000 and
Revocation
N/A
N/A .
intoxicating
12 days
liquor where
only licensed
for 3.2
percent malt
liquor
The penalty for violations without a presumptive penalty shall be determined by the
City Council.
SECTION 3. Section 3- 1 -14 -4 F of the Lakeville City Code is amended as follows:
F. Subsequent Appearances: Upon a second or subsequent appearance before
the Council by the same licensee, the Council must impose the presumptive
penalty for the violation or violations giving rise to the subsequent appearance
without regard to the particular violation or violations that were the subject of
the prior appearance. However, the Council may consider the amount of time
elapsed between appearances as a basis for deviating from the presumptive
penalty imposed by this section.
SECTION 4. Section 3 -1 -14-4 G of the Lakeville City Code is amended as
follows:
G. Computation Of Violations: Violations are computed as follows:
1. For a licensed establishment enrolled in the City's best practices program
at the time of the violation, any violation which occurred within two (2)
years of the current violation will be counted.
2. For licensed establishments not enrolled in the City's best practices
program at the time of the violation, any violation which occurred within
three (3) years of the current violation will be counted.
SECTION 5. This ordinance shall be effective immediately upon its passage and
publication.
ADOPTED this 8th day of September, 2009 by the City Council of the City of Lakeville,
Minnesota.
CITY OF LAKEVILLE
m
ATTEST:
Charlene Friedges, City k
City of Rosemount — Liquor Violations Presumptive Penalty Draft
Type of Violation
is
2 Id violation
3'd Violation
4th violation
Violation*
Within 24 mos.
Within 36 mos.
Within 48 mos.
Commission of
Revocation
N/A
N/A
N/A
Related Felony
Sale of alcoholic
Revocation
N/A
N/A
N/A
beverage while
under suspension
Refusal to allow
Revocation
N/A
N/A
N/A
Inspection by
Authorized Person
Sale of Intoxicating
$2000 **
Revocation
N/A
N/A
Liquor when
and 15 days
licensed for 3.2 and
wine
Sale to Under Age
$500
$1000 & 3 days
$2000 & 15
Revocation
Person
days
Sale to Obviously
$500
$1000 & 3 days
$2000 & 15
Revocation
Intoxicated Person
days
Failure to prevent
$500
$1000 & 3 days
$2000 & 15
Revocation
alcoholic beverages
days
from leaving
remises
After hours sale or
$500
$1000 & 3 days
$2000 & 15
Revocation
consumption of
days
alcoholic beverages
* The matrix is laid out in a table format. However, when determining the violation level
violations are considered across violation types. For example, if a business has a
violation for sale to under age person and then a violation for sale to an obviously
intoxicated person it will be considered a second violation for the sale to intoxicated
person violation.
** There is a proposal in the legislature to raise the maximum penalty amount to $10, 000
from the current $2000.
Domeier, Am
From: LeFevere, Charlie L. [clefevere @Kennedy - Graven.com]
Sent: Thursday, March 04, 2010 11:31 AM
To: Domeier, Amy
Cc: Kalstabakken, Gary
Subject: Liquor violation penalty matrix
Amy,
Chief Kalstabakken asked me to comment on the advantages and disadvantages of establishing a schedule of sanctions,
or punishments, for liquor code violations. These sanctions typically take the form of a specified penalty for a specified
number of violations over a given period of time.
It seems to me that the advantages of such a schedule are that: there is no need to exercise judgment about the
appropriate penalty in response to a specific offense; it is easier to explain to violators why a given penalty is proposed;
and the imposition of penalties appears to be more uniform and therefore more objective.
The disadvantage of establishing a schedule is that it is relatively inflexible. Even if the schedule policy states that
departures from the scheduled sanction may be made in exceptional circumstances, some violators will argue that the
scheduled sanction is too severe given the circumstances of their offense. Additionally, violators tend to see the
sanctions as an entitlement and will argue against any increase in the sanction above that set on the schedule.
The reasonableness of the sanction on the typical schedule depends on an assumption that all offenses deserve the
same punishment or sanction. That is, it considers only one factor - the number of violations occurring during a specific
period of time. It does not take into account factors such as:
1. The kind of offense being punished. An after -hour sale is treated the same as a sale to a minor.
2. The kinds of offenses being counted to determine the level of punishment. One licensee with three offenses might
have sold to a minor three times, while another with three offenses might have sold to a minor once, had an after -hour
sale violation and made a sale on a legal holiday.
3. The magnitude or seriousness of the offense. In one case, an after -hour sale might be a single sale five minutes after
legal closing. Another case might be a party going two hours after closing and involving twenty people.
4. How recently past offenses occurred. If a three -year time period is considered, one licensee might have committed
one offense per year for three years, while another might have just received a license within the last year, and committed
three offenses during that time.
5. The attitude and response of management. In some cases, management responds to being caught in a violation by
challenging the arrest and complaining about being entrapped or picked on by police. In other cases, management takes
the matter very seriously, immediately discharges the employee who committed the offense and cooperates with police in
establishing procedures to assure that offenses do not recur.
6. Mitigating or aggravating factors of the offense. In one case, a sale to a minor might be the result of inadvertence or
a mistake about the correct cut -off date for the birthday of a person of legal age. In another case, a sale might have
clearly been made intentionally with full knowledge that the buyer was a minor and intended to take a large amount of
liquor to a high school graduation party.
Whether to adopt a schedule of punishment for liquor violations is within the discretion of the city council. If the council
decides that, on balance, it is preferable to have a schedule of penalties, it may wish to consider treating different kinds of
offenses differently in the policy, depending on the seriousness of different offense in the view of the council, and
to consider including in the policy a list of factors that will be considered in deciding whether an upward or downward
departure from the standard sanction is appropriate.