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Home My WebLink About9.b. Resolution and Consent Order Imposing Civil Penalty on PCS Liquors, LLC, D/B/A/ Rosemount Liquor and Wine Cellar4ROSEMOUNTEXECUTIVE SUMMARY CITY COUNCIL City Council Meeting: January 19, 2010 AGENDA ITEM: Resolution and Consent Order Imposing AGENDA SECTION: Civil Penalty on PCS Liquors, LLC, D /B /A New Business Rosemount Liquor and Wine Cellar PREPARED BY: Gary Kalstabakken, Chief of Police AGENDA NO. 9.b. ATTACHMENTS: Resolution and Consent Order APPROVED BY: RECOMMENDED ACTION: Motion to approve a resolution and consent order imposing civil penalty of a 30 day license suspension and $2000 civil penalty on PCS Liquors, LLC, D /B /A Rosemount Liquor and Wine Cellar for a violation of the City's liquor license regulations. OR Motion to table the imposing of civil penalty on PCS Liquors, LLC to the Monday, February 1, 2010 City Council meeting for the purpose of discussing the proposed civil penalty on PCS Liquors, LLC. BACKGROUND Compliance checks utilizing a cooperating underage purchaser were conducted on December 15, 2009 at each of the City's licensed liquor establishments. The purchaser entered Rosemount Liquor and Wine Cellar and was sold an alcohol beverage by an employee of Rosemount Liquor. This is a criminal violation by the employee and a violation of the City's ordinance regarding liquor licensees. This is the fifth violation for sale to an under age person that has occurred at the establishment since June 2005. ISSUE The sale of an alcoholic beverage to an underage person is a violation of City Code 3 -1: Liquor Regulations. Following the illegal sale, police staff and the city clerk met with the management of the establishment to discuss the violation. Previous violations at the business include: • June 5, 2005 Compliance check • February 23, 2006 Investigation • November 22, 2006 Compliance check • April 24, 2008 Compliance check • December 15, 2009 Compliance check Based on the recurring violations a Resolution and Consent Order was prepared with a $2000 civil penalty and a 30 consecutive business day suspension of the liquor license of PCS Liquors, LLC. PCS Liquors, LLC has been provided an opportunity to request a hearing in accordance with City Code 3.1 or to accept the conditions in the Resolution and Consent Order. On Tuesday, January 19, 2010 a meeting was held with the owners of PCS Liquors, LLC, by the police chief and city clerk. The owners have stated that they do not want to request a hearing in front of a hearing examiner. However, they also stated that they believe the proposed penalty is too severe. While they realize that five (5) violations since June of 2005 is unacceptable, they also believe that they have actively tried to address this problem with their employees. They also point out that this is the second violation in the last 37 months and that is a reflection on improvements in their business practices. The owners have requested an opportunity to address the Council and appeal for a lesser penalty than the 30 day suspension and $2000 civil penalty. If the Council agrees to this request, staff recommends tabling the item to the February 1, 2010 Council Meeting. The owners do understand that addressing the Council is not a hearing to contest the facts of the violation; rather it is a time for the owners to address the Council regarding the penalty imposed for the violation. A right to a hearing as defined in City Code is being waived by PCS Liquors, LLC in lieu of the appearance before Council. RECOMMENDATION Delaying action on this item to allow the owners to address the Council will not delay the imposition of the penalty; PCS Liquors owners have agreed that a March 1, 2010 start date for any penalty imposed will not be contested. Therefore, staff recommends tabling this item to February 1, 2010 to allow PCS Liquors, LLC to appear in front of the Council to appeal for a more lenient penalty. CITY OF ROSEMOUNT DAKOTA COUNTY, MINNESOTA RESOLUTION NO. RESOLUTION AND CONSENT ORDER IMPOSING CIVIL PENALTY AND SUSPENSION ON PCS LIQUORS, LLC, d /b /a ROSEMOUNT LIQUOR MART WHEREAS, the City of Rosemount (the "City ") has issued a license for the sale of alcoholic beverages to PCS Liquors, LLC, d /b /a Rosemount Liquor Mart (the "Licensee "); and WHEREAS, illegal activity has occurred on the licensed premises of the Licensee, specifically, service of an alcoholic beverage to a person under the age of 21 by an employee of Licensee on the following dates: March 24, 2005; February 23 and November 22, 2006; April 24, 2008; and December 15, 2009 (the "December 15, 2009 Violation "), all in violation of Minnesota Statutes Section 340A.503 (the "Violations "); and WHEREAS, the occurrence of the Violations is not disputed by the Licensee; and WHEREAS, the City Council regards such activities as very serious matters warranting the sanctions herein; and WHEREAS, the Licensee has established an ongoing pattern of illegal sales of alcohol; and WHEREAS, the Licensee has waived its right to an administrative hearing in exchange for accepting the penalties herein; WHEREAS, on the basis of such waiver and agreement by Licensee, the City is willing to limit sanctions for the Dec. 15, 2009 Violation to a civil penalty in the amount of Two Thousand Dollars ($2,000.00) and a thirty -day suspension of Licensee's license beginning on March 1, 2010; and WHEREAS, the Licensee understands that the sanctions to be imposed for the Dec. 15, 2009 Violation may be reopened and reconsidered, pursuant to Minnesota Statutes Section 340A.415, in the event Licensee commits another violation; and WHEREAS, the Council has determined that this Consent Order, resolving issues relating to sanctions to be imposed by reason of the above - described violations is reasonable, necessary and in the best interests of the public; and WHEREAS, the Licensee has freely agreed to waive a statement of written charges and a hearing thereon and to pay the civil penalty hereinafter described, for the consideration set forth herein. The Licensee acknowledges and agrees that it freely executed this agreement for the purpose of avoiding a public hearing and resolving issues relating to sanctions to be imposed by the City as the licensing authority, pursuant to Minnesota Statutes Section 340A.415. 362787v1 MDT RS220 -245 A -1 ON THE BASIS OF THE FOREGOING, THEREFORE, IT IS RESOLVED THAT THE CITY COUNCIL ORDERS AND AGREES AS FOLLOWS: 1. The Licensee will pay to the City Finance Director, within ten days of receipt of written notification of approval of this Consent Order by the City Council, the sum of Two Thousand Dollars ($2,000.00). 2. The Licensee's license will be suspended for a total of thirty (30) consecutive business days starting March 1, 2010. If any other liquor - license violation occurs, the City will revoke the license. 3. Licensee waives a written statement of charges, notice of hearing and hearing to which it is entitled by Minnesota Statute Section 340A.415. 4. The undersigned admits the occurrence of the Violations. 5. The City will impose, as the sole civil sanction for the Dec. 15, 2009 Violation, a civil penalty in the amount of $2,000.00 and suspension of the license as set forth in paragraph 2. This agreement shall not limit the right of the City to pursue civil remedies or to take any action with respect to the license which is authorized by state law or City Code for any activity to which this agreement does not specifically apply and which is a violation of state law or City Code. 6. Licensee understands and agrees: a. That this agreement does not constitute an agreement not to bring criminal charges for activities described herein; b. That a decision whether to bring any charges rests within the discretion of the City prosecuting attorney, the County attorney, or other authorized law enforcement agencies; C. That the Licensee freely enters into this agreement without any promises from the City that no criminal charges will be brought; d. That this agreement is entered into for the sole purpose of resolving and settling any potential civil sanctions imposed pursuant to Minnesota Statute Section 340A.415, and not for the purpose of resolving or settling any potential criminal issues; and e. That in the event criminal charges are brought against the undersigned, the Licensee or any of its employees for activities described herein, Licensee will not contest the validity of this agreement, repudiate, or otherwise challenge this agreement in any way, by reason of the initiation or prosecution of such criminal proceedings. 3627870 MDT RS220 -245 A -1 PCS LIQUORS, LLC, d /b /a ROSEMOUNT LIQUOR MART By Its By Order of the City Council of the City of Rosemount this _ day of , 2010. Mayor ATTEST: City Clerk 362787v1 MDT RS220 -245 A -1