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HomeMy WebLinkAbout2.e. Rosemount Liquor - License ViolationAGENDA ITEM: Rosemount Liquor License Violation Q►nNDA SECTION: G 100 PREPARED BY: Gary Kalstabakken, Chief of Police AGENDA NO. 2.4E. ATTACHMENTS: Compliance Check Spreadsheet, Resolution and Consent Order, Penalty Matrix of Various Cities, Lakeville Ordinance APPROVED BY: RECOMMENDED ACTION: ROSEt VIOLINT EXECUTIVE SUMMARY CITY COUNCIL City Council Work Session: May 6, 2008 ISSUE The Police Department conducted alcohol compliance checks on April 24, 2008. Rosemount Liquor failed the check by having an employee sell to the under age buyer. This is Rosemount Liquor's fourth violation for under age sale since March 24, 2005. The owners /licensees signed a Consent Order and Council approved the Order in July 2007 for previous violations. This Order suspended eleven (11) days of a license suspension on the condition that no further violations occurred within a 36 month period of the last violation on November 22, 2006. BACKGROUND Following the failure of the compliance check on April 24, 2008, a letter was delivered to Rosemount Liquor advising them that the eleven (11) day suspension would be imposed from April 28 through May 9, 2008. The business's attorney responded with a letter stating they were challenging the imposition of the suspension and would remain open. In conversations between City Attorney LeFevere and the attorney for Rosemount Liquor, Rosemount Liquor has asked for limitations on the imposition of the suspension. Their position is that any suspension should only be served Monday through Wednesday and that the suspension's length is excessive. In addition, they argue that any penalty for the violation of April 24 should also give credit for the lengthy suspension already served as part of the July 2007 Consent Order. Furthermore, the attorney suggested that Rosemount's penalties are out of line with other cities' penalties. Their position is that the penalties are severe in length of suspension and the length of time used to calculate the number of violations. He specifically suggested reviewing the practices of the cities of Burnsville, Bloomington, Plymouth and Edina as examples. A matrix including these cities and others is included for Council review. There is not a consistent time frame for "looking back" to determine the number of violations. It ranges from the longest of a five year period (Bloomington) to the shortest of two years (Burnsville but only for sale to under age persons. Other license violations are reviewed for up to 4 years.) Council direction is sought on how to proceed in resolving these liquor license violations. 'Brockway Golf (Closed) Holiday Express Bonkers (Closed) !Failure Rate r GM Liquor }Rudys Redeye jTopps Pizza 'Pizza Hut I Kwik Trip IV.F.W. Shenanigin's On•Sale I_Shenanipin's Off-Sale !Rosemount Liquor 'Rich Valley Golf I McDivot's 'Cub Foods 'City Limits 'American Legion 'Applebee's 'Business Pass Pass Pass Pass Pass I Pass Pass Fall Pass Pass Pass Pass Fall ��F3I J 14.30% Pass Pass Pass Pass i Pass Pass Fail Pass I I Pass Not Checked Pass Pass Pass 1 Pass Fail July 26, 2007 21.4% Pass Pass Pass i Pass Pass Pass Pass Fall Fall leuoseag uadO toN Pass Pass Fall 1 Pass Pass November 22, 2006 Underage CLOSED 2570 Pass Pass Pass Pass Pass Pass i Fall I Not Open Seasonal J Pass Fall Pass Pass Fall March 24, 2005 Underage Pass f, 8.3% Pass Pass r Pass Pass Pass Pass Pass Pass I Pass 1 Fall Pass U1=11 Undere•e closed Zz D D O% Pass I Pass Pass J Pass Pass Pass pasoq 1 Pass I L_ I Pass Pass Pass March 22,'03 I Underage Not Checked z z O% Pass Pass Pass L Pass Pass I Pass Pass Cliff Date Pass Pass I Pass Dili Date Pass May 22, '02 Underage J g zz 10% L Pass I Pass I Pass I Pass I MCMINN R Pass R Pass l Pass May 31, '01 Underage N/A N /A I 0% N/A Pass N/A N/A L Pass 1 Pass Pass Pass N/A 00etepun i 66.'6 '1509 N/A N/A I 40% Pass I Pass Pass Pass L Fall _J L Fall Pass Fall Pass Au .31 '99 N/A NIA I 30% I Pass I Pass Pass I Pass Fall 1 Pass J L_ g Fall J Pass Fall June 17,'99 1 g N/A N/A 10% Pass Fall Pass Pass L Pass Pass 1 Pass Pass Pass May 20,'99 g N/A N/A N/A I Pass N/A N/A N/A Pass N/A N/A A rll 12 '99 Undera e I Pass Pass Pass Pass Pass Pass Pass Pass Feb.25, '99 g Fall xac 16.60% Pass Pass Pass Pass Pass Pass Fall /00/ Pass Nov. 5,'98 5zz 12.50% N/A Fall Pass Pass I Pass_ Pass Pass _I —.sKK Pass 1 July 16,'98] ➢D L 62.50% I I WA I Fall I_ Pass 1 Fail P ass Fail Fall I xx I Pass A r1116 '98 ag a RESOLUTION NO. 56 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 February 23, 2006, and November 22, 2006, 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 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 offenses, and has committed to ensuring that such offenses do not reoccur; and WHEREAS, Licensee has worked with staff to identify personnel policies and training, operational practices, and other means intended to minimize or eliminate such violations in the future and to assure a more safe, responsible and lawful liquor operation, which have been set forth in written policies and procedures adopted by Licensee, a copy of which is attached hereto as Attachment One, and hereby made a part hereof (hereinafter the "Policies and Procedures 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 of the Policies and Procedures set forth in Attachment One; 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 Violations to a civil penalty in the amount of One Thousand Dollars ($1,000.00) and a three -day suspension of Licensee's license for the February 23, 2006, violation; and, a civil penalty in the 305053v1 MDT R5220 -245 1 amount of One Thousand Five Hundred Dollars ($1,500.00) and a twenty one -day suspension of Licensee's license for the November 22, 2006, violation; and WHEREAS, were it not for such representation and agreement of continuing compliance with the Policies and Procedures 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 Violations may be reopened and reconsidered, pursuant to Minnesota Statutes Section 340A.415, in the event Licensee fails to comply fully with all of the Policies and Procedures 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 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, 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 Two Thousand Five Hundred Dollars ($2,500.00). 2. The Licensee's license will be suspended for a total of thirteen (13) consecutive days between the dates of October 1, 2007 through October 6, 2007; October 8, 2007 through October 13, 2007; and, October 15, 2007. The City will stay the remaining eleven (11) days of the suspension and only impose it if another violation occurs within 36 months from November 22, 2006. If Licensee fails an under -age compliance check, the City will immediately impose the remaining 11 -day suspension. If any other liquor license violation occurs, the 11 -day suspension will be imposed after Licensee is provided due process. 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 Violations, a civil penalty in the amounts of $1,000.00 and $1,500.00 and suspension of the license as set forth in paragraph 305053v1 MDT RS220 -245 2 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. 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 the Policies and Procedures 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 Statute Section 340A.415, provided the total penalty including the penalty agreed to pursuant to paragraph 1 hereof shall not exceed amounts authorized by law. 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. 305053v1 MDT RS220 -245 3 PCS LIQUORS, L d/b /a ROSE O T OR MART By Its N /nW.c\9 -r` 2007. ATTEST: City Clerk By Order of the City Council of the City of Roserhount this,. 305053v1 MDT RS220 -245 4 Mayor ATTACHMENT ONE Policies and Procedures 1. Employees who make an illegal sale of alcohol to under age persons will be terminated. 2. The principal owners of Rosemount Liquor Mart have taken on a more active role in operation of the store. One of the principals has taken over the day -to -day operations of the store. 3. Age verification is mandatory for all persons regardless of perceived age. Without proper identification, no sale is allowed. 4. Employees have various resources available at the cashier stations to assist in preventing illegal sales, this includes an age verification magnetic card reader, manuals on detecting fake identification cards, and calendars with the "On or Before" date displayed. 5. All employees are required to read and sign the store's policy on Sales and Identification (Attached). 305053v1 MDT RS220 -245 263592v1 (SJS) RS215 -6 A PCS Liquors, LLC d /bla Rosemount Liquor Mart Sales Identification Policy 1) It is the policy of Rosemount Liquor Mart that we do not sell ANYTHING to persons under the age of 21. This includes non alcoholic beer mixes, soda, ice, cigarettes, etc. This policy is to prevent anyone from selling to a familiar face. Children are allowed in the store if accompanied by a parent or guardian. 2) It is Rosemount Liquor Mart's policy to ask for proper identification from anyone who appears to be under the age of 30. 3) Only the following are considered to be acceptable forms of Identification: a. Any Valid(non expired) US State Issued Photo Driver's License. b. Any Valid(non- expired) US State issued Non-Driver's Photo ID. c. A Valid(non- expired) Armed Forces ID. d. A Valid(non- expired) Passport or Visa with Photograph. International or Foreign driver's licenses will not be considered as either a primary or back -up ID. if you are visiting from another country, please bring your passport or travel visa. 4) Rosemount Liquor Mart WILL NOT ACCEPT any expired ID for use as a primary or back -up ID, period. 5) You must be prepared to show your ID every time you come into Rosemount Liquor Mart, even if you consider yourself a "regular Also, anyone who contributes money to purchase alcohol will be carded, and must be 21 or older, no exceptions, Credit cards and checks must bear the name of the person presenting them so that we may verify the age of the account holder. Anyone who tries to use a fraudulent, or altered ID card to try to purchase alcohol will be reported to the police, no exceptions! The above policies are in effect to ensure that Rosemount Liquor Mart does not serve any customer who is not of age. These policies are not open to negotiation. Rosemount Liquor Mart reserves the right to refuse service to anyone to ensure complete compliance with Federal, State and Local regulations. The above policies may change without notice due to law enforcement rule changes. We regret any inconvenience that this causes our customers. Rosemount Liquor Mart provides our employees with guides for determining whether an ID is valid at each register along with a Viage Age Verification card reader. CITY First Second Third Fourth Apple Valley (24 mos) 500 750 1500 7 Day Suspension Eagan (24 mos) 500 1000 1500 7 Days 2000 30 Days Farmington (24 -36 -48 mos) 250 3 Days 500 7 Days (24) 1000 21 Days (36) Revocation (48) Hastings 300 750 2 Days 1000 5 Days 2000 Revocation Lakeville (36) Under Age Best Practices On -Sale Intoxicating: 500 On -Sale Beer Wine: 250 Off -Sale 3.2 Beer: $250 3 days 6 days Revocation Lakeville (36) Under Age Non Best Prac. On -Sale Intoxicating: 1000 On -Sale Beer Wine: 500 Off -Sale 3.2 Beer: $500 6 days 12 days Revocation Inver Grove No penalty has ever been imposed for any violation Richfield 500 2 Days 1500 5 Days 1750 —10 Days 2000 Revocation Burnsville (24) Under Age Best Practices 500 750 3 Days 1000 6 Days and removal from BP matix Revocation Minimum 1 Year Burnsville (24) Under Age Non Best Prac. 1000 and 3 days 1500 and 6 days 2000 and 9 days Revocation Minimum 1 Year Bloomington (60 months) 1000 1250 2000 Not Listed Plymouth (36) Non Best Practices 500 and 3 days or 5 days 1000 and 7days or 10 days 2000 and 12 or 15 days Revocation Plymouth (36) Best Practices 500 1000 Return to Non Best Practices Return to Non Best Practices Edina (24) 500 1000 and 3 days 2000 and 7 days Revocation Liquor License Violations Matrix May 6, 2008 Burnsville has a separate presumptive penalty matrix for all other violations than sale to under age person. Penalties vary based upon the violation and the "look back" period is 18 mos. after 1 30 mos. after 2nd and 48 mos. after 3ra ORDINANCE NO. 838 CITY OF LAKEVILLE DAKOTA, COUNTY, MINNESOTA AN ORDINANCE AMENDING TITLE 3, CHAPTER 1 OF THE LAKEVILLE CITY CODE CONCERNING BEST PRACTICES AND THE REVOCATIONOR SUSPENSION OF LICENSES FOR THE SALE OF INTOXICATING LIQUOR OR 3.2 PERCENT MALT LIQUOR THE CITY COUNCIL OF THE CITY OF LAKEVILLE, MINNESOTA ORDAINS: SECTION 1. Section 3 1 14 4 of the Lakeville City Code is amended to read: 3 1 14 4: PRESUMPTIVE CIVIL PENALTIES: A. Purpose: The purpose of this Section is to establish a standard by which the City Council determines the length of license suspensions and the propriety of revocations, and shall apply to all premises licensed under this Chapter. These penalties are presumed to be appropriate. The Council may deviate from the presumptive penalty where the Council finds that there exist substantial reasons making it appropriate to deviate, such as, but not limited to, a licensee's efforts in combination with the State or City to prevent the sale of alcohol to minors. When deviating from these standards, the Council will provide written findings that support the penalty selected. 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 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 items in the grid are mandatory. The licensee must choose items from the list of electives to equal a total of 60 points. The City will conduct random compliance checks to verify compliance. If a licensee has two or more violations within a three 138299v03 1 RNK:r04 /29/2008 year period, the Best Practices presumptive penalties shall not apply to third and subsequent violations. Req. Req. Req. Req. 20 10 10 10 20 10 10 10 10 2. 4. 6. 7. 8. 9. 10. Inspection of records to verify compliance inimum of 75% of all alcohol selling employees trained by Lakeville Police Department Internal program in place for on -going training of new current alcohol ..elling employees. Policy requiring identification checks for anyone appearing to be 40 or under Participation in TIPS or similar (city approved) training program 75% of Icohol serving employees certified Internal employee reward and recognition program (program to reward any mployee who catches any underage customer attempting to purchase Icohol) pproved internal compliance check program utomated identification card scanner system (cannot do both eight and nine) utomated identification card scanner system integrated into register system (cannot do both eight and nine) Pre arrangement to meet immediately on violations (meet with Police Dept nd City staff immediately instead of waiting for criminal court proceedings) Policy requiring Identification checks for every alcohol transaction regardless of apparent age Pre agreement to work with Police on preventing secondary alcohol sales Minimum age of 21 for employees selling alcohol products C. Presumed penalties for Violations: The presumed penalties for violations are as follows (unless specified, numbers below indicate consecutive days' suspension): (1) For licensed establishment enrolled in the City's Best Practices Program at the time of the violation: 138299v03 RNK:r04/29/2008 2 Tye 4 "0, n 1 V(0.14t n 164 3m■Violation 4!' WOAtion 1. Commission of a felony related to the licensed activity. Revocation N/A N/A N/A 2. Sale of alcoholic beverages while license is under suspension. Revocation N/A N/A N/A 3. Sale of alcoholic beverages to underage person: on sale intoxicating liquor on sale beer and wine off sale 3.2 beer $500.00 $250.00 $250.00 3 3 3 6 6 6 Revocation Revocation Revocation 4. Sale of alcoholic beverages to obviously intoxicated person. 3 6 18 Revocation 5. After hours sale of alcoholic beverages. 3 6 18 Revocation 6. After hours display or consumption of alcoholic beverages. 2 4 12 Revocation 7. Refusal to allow government inspectors or Police admission to inspect premises. 5 15 Revocation N/A 8. Illegal gambling on premises. 3 6 18 Revocation 9. Failure to take reasonable steps to stop person from leaving premises with alcoholic beverages. 2 4 12 Revocation 10. Sale of intoxicating liquor where only license for 3.2 percent malt liquor 3 6 18 Revocation to C a.v 1A x x '41 4 .a :1....4- ',..:-',...'41. 1. Commission of a felony related to Revocation N/A N/A N/A 138299v03 RNK:r04/29/2008 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: 3 the licensed activity. 2. Sale of alcoholic beverages while license is under suspension. Revocation N/A N/A N/A 3. Sale of alcoholic beverages to underage person: on sale intoxicating liquor on sale beer and wine off sale 3.2 beer $1,000 $500 $500 6 6 6 12 12 12 Revocation Revocation Revocation 4. Sale of alcoholic beverages to obviously intoxicated person. 6 12 30 Revocation 5. After hours sale of alcoholic beverages. 6 12 30 Revocation 6. After hours display or consumption of alcoholic beverages. 4 8 24 Revocation 7. Refusal to allow government inspectors or Police admission to inspect premises. 10 30 Revocation N/A 8. Illegal gambling on premises. 6 12 30 Revocation 9. Failure to take reasonable steps to stop person from leaving premises with alcoholic beverages. 4 8 24 Revocation 10. Sale of intoxicating liquor where only license for 3.2 percent malt liquor 6 12 30 Revocation The penalty for violations without a presumptive penalty shall be determined by the City Council. D. Multiple Violations: At a licensee's first appearance before the Council, the Council must act upon all of the violations that have been alleged in the notice sent to the licensee. The Council in that case must consider the presumptive penalty for each violation under the first appearance column in subsection (B) above. The occurrence of multiple violations is grounds for deviation from the presumed penalties in the Council's discretion. 138299v03 4 RNK:r04/29/2008 E. Subsequent Violations: Violations occurring after the notice of hearing has been mailed, but prior to the hearing, must be treated as a separate violation and dealt with as a second appearance before the Council, unless the City Administrator and licensee agree in writing to add the violation to the first appearance. The same procedure applies to the second, third, or fourth appearance before the Council. F. Subsequent Appearances: Upon a second, third, or fourth 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 first or 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. G. Computation of Violations: Multiple violations are computed by checking the time period of the three (3) years immediately prior to the date of the most current violation. H. Other Penalties: Nothing in this Section shall restrict or limit the authority of the Council to suspend up to sixty (60) days, revoke the license, impose a civil fee not to exceed two thousand dollars ($2,000.00), to impose conditions, or take any other action in accordance with law; provided, that the license holder has been afforded an opportunity for a hearing in the manner provided in this Chapter. SECTION 2. This ordinance shall be effective immediately upon its passage and publication. ADOPTED this 5th City of Lakeville, Minnesota. AYfEST: Charlene Friedges, Cjt /Clerk 138299v03 RNK:r04/29/2008 day of May 2008, by the City Council of the CITY OF VILLE BY: 0/ a. G 0, y Dahl/ ay 5