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HomeMy WebLinkAbout6.e. Resolution and Consent Order Imposing Civil Penalty and Suspension on FPW, LLC, D/B/A/ MGM Liquor RosemountAGENDA ITEM: Resolution and Consent Order Imposing Civil Penalty and Suspension on FPW, LLC, D /B. /A MGM Liquor Rosemount AGENDA SECTION: Consent PREPARED BY: Gary Kalstabakken, Chief of Polic AGENDA NO. (g.t. ATTACHMENTS: Resolution and Consent Order APPROVED BY: Dry RECOMMENDED ACTION: Motion to approve a resolution and consent order imposing a civil penalty and suspension on FPW, LLC, D /B /A MGM Liquor Rosemount for a violation of the City's liquor license regulations. 4 ROSEMOUNT CITY COUNCIL City Council Meeting: December 15, 2009 EXECUTIVE SUMMARY BACKGROUND A complaint was received by the Police Department that MGM Liquor Rosemount was open on Thanksgiving and sold liquor on that day in violation of Minnesota State Statute and Rosemount City Code. An investigation by the Police Department did verify that sales had occurred. ISSUE The sale of an alcoholic beverage is prohibited on Thanksgiving Day by establishments licensed for off sale. This is a criminal violation and the case has been referred to the city prosecutor for handling for that aspect of the violation. It is also a violation of the liquor license held by MGM Liquor. A meeting was held with the licensee on Wednesday, December 09, 2009 to discuss the violation. During this meeting an agreement was reached on the civil penalties to be imposed for the violation. The owner has agreed to abide by the terms of the attached Resolution and Consent Order. Penalties to be imposed include a $1000 civil penalty and a suspension of the license for five (5) hours. The suspension is to be served from 3 to 8 p.m. on December 24, 2009. Liquor sales are prohibited by state statute and City Code on December 24t after 8 p.m. This is the first violation of this type by a liquor license holder within our community. The penalties proposed and agreed to are consistent with those imposed for other violations at other liquor establishments in the City. RECOMMENDATION Staff recommends that Council approve the attached Resolution and Consent Order to impose civil penalties on MGM Liquor Rosemount for conducting sales on Thanksgiving Day 2009. RESOLUTION NO. RESOLUTION AND CONSENT ORDER IMPOSING CIVIL PENALTY AND SUSPENSION ON FPW, LLC, D /B /A MGM LIQUOR ROSEMOUNT WHEREAS, the City of Rosemount (the "City has issued a license for the sale of alcoholic beverages to FPW, LLC, d/b /a MGM Liquor Rosemount (the "Licensee and WHEREAS, an illegal activity has occurred on the licensed premises of the Licensee, specifically, service of an alcoholic beverage on November 26, 2009 (Thanksgiving Day), in violation of Minnesota Statutes, Section 340A.504 (the "Violation and WHEREAS, the occurrence of the Violation is not disputed by the Licensee; and WHEREAS, the City Council regards such activities as very serious matters warranting the sanctions hereinafter set forth; and WHEREAS, the Licensee has, to date, maintained an establishment that has been relatively free of criminal activity relating directly to the sale of alcohol; and WHEREAS, the Licensee has been generally cooperative in the investigation of this matter, has demonstrated a willingness and desire to work with City staff in resolving this matter without putting the City to the expense of an administrative hearing, has expressed an understanding of the seriousness of the offense, and has committed to ensuring that such offense does not reoccur; and WHEREAS, Licensee has represented, and by execution of a copy of this consent order agreed, that it will faithfully and fully comply with all limitations of Minnesota Statutes, Section 340A.504 relating to hours and days of sale; and WHEREAS, on the basis of such representation and agreement by Licensee and assuming continuing compliance therewith, the City is willing to limit sanctions for the Violation to a civil penalty in the amount of One Thousand Dollars ($1,000.00) and a five -hour suspension of Licensee's license from 3:00 p.m. to 8:00 p.m. on December 24, 2009 (Christmas Eve); and WHEREAS, were it not for such representation and agreement of continuing compliance with Minnesota Statutes, Section 340A.504 by Licensee, the City would not be willing to so limit sanctions and is doing so solely on the basis of such representation and agreements of Licensee and on the basis of the agreement by Licensee that the matter of the sanctions to be imposed for the Violation may be reopened and reconsidered, pursuant to Minnesota Statutes, Section 340A.415, in the event Licensee fails to comply fully with Minnesota Statutes, Section 340A.504 361370v1 CLL RS220 -245 1 at any time during the three (3) year period following the date of this Resolution, all as hereinafter provided; and WHEREAS, the Council has determined that this Consent Order, resolving issues relating to sanctions to be imposed by reason of the above described violation 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 and accept the suspension hereinafter described, for the consideration set forth herein. The Licensee acknowledges and agrees that it freely executed this agreement, without threat of criminal prosecution, 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. 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 One Thousand Dollars ($1,000.00). 2. The Licensee's license will be suspended for a total of 5 hours from 3:00 p.m. to 8:00 p.m. on December 24, 2009. 3. Licensee waives a written statement of charges, notice of hearing and hearing to which it is entitled by Minnesota Statutes, Section 340A.415. 4. The undersigned admits the occurrence of the Violation. 5. The City will impose, as the civil sanction for the Violation, a civil penalty in the amount of $1,000.00 payable as set forth in paragraph 1 and a suspension as set forth in paragraph 2 hereof. This agreement shall not limit the right of the City to pursue civil remedies or to take any action with respect to the license that is authorized by state law or City Code for any activity to which this agreement does not specifically apply and that is a violation of state law or City Code. 6. Except as provided in paragraph 7, in the event of future violations of state law or City Code by Licensee, no additional penalty shall be imposed for unlawful activity covered by this agreement. However, admissions of unlawful activity described herein may be taken into consideration in determining appropriate sanctions in any future cases. 7. In the event the City Council determines that Licensee has failed to comply fully with Minnesota Statutes, Section 340A.504 at any time during the three year period following the date of this Resolution, Licensee agrees that the City may revoke or suspend the Licensee's license or impose civil penalties for the Violations pursuant to Minnesota Statutes, Section 361370v1 CLL RS220 -245 2 340A.415, provided the total penalty including the penalty agreed to pursuant to paragraphs 1 and 2 hereof shall not exceed amounts authorized by law. 2009. ATTEST: 8. 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. By Order of the City Council of the City of Rosemount this day of City Clerk Amy Domeier 361370v1 CLL RS220 -245 3 FPW, LLC, D/B /A MGM LIQUOR ROSEMOUNT By Its Mayor William Droste