HomeMy WebLinkAbout8.a. Liquor violation - Rosemount Liquors License HearingAGENDA ITEM: Liquor violation Rosemount Liquors
License Hearing
AGENDA SECTION:
Old Business
PREPARED BY: Gary Kalstabakken, Chief of Poli A
ENDA NO. 1.4.
ATTACHMENTS: Assistant City Attorney Memo um,
Hearing Officer's Recommended
Penalties, Findings of Facts and Hearing
Officer Memorandum
APPROVED BY
013-)
RECOMMENDED ACTION: Motion to impose a civil penalty as delineated in the staff
recommendation.
4 ROSEMOUNT
CITY COUNCIL
City Council Special Meeting: November 5, 2008
EXECUTIVE SUMMARY
ISSUE
A liquor violation occurred at Rosemount Liquors on April 24, 2008. The owners of Rosemount Liquors
requested a hearing regarding the penalties proposed for the violation. The hearing has been held and the
Hearing Officer's recommendation for penalties has been received. Council must now decide the penalties
to be imposed for the violation of April 24, 2008.
BACKGROUND
Assistant City Attorney Mary D. Tietjen has prepared a memorandum that provides background and
additional information on this item. Her memorandum is attached.
RECOMMENDATION
The staff recommendation for penalties is also included in the attached memorandum. The
recommendation does include offering two options to Rosemount Liquors as penalties.
The Hearing Officer's recommendation includes a provision to require the installation of "computer
technology that will ensure compliance with the age identification procedures." This recommendation is
incorporated into one option and not in the other option. If this option is imposed additional language
will be included in the penalty to clarify the expectation of the type of computer technology, or software,
required. Software is intended to be integrated with the cash register operation so that identification with a
birth date legal for the sale of alcohol must be swiped before the register will activate to allow a sale. If no
identification is swiped, integrated systems also allow for the manual entry of a birth date to activate the
register. Language will be included to clarify this topic and will also include that the selected software shall
be approved by the chief of police.
While integrated software can be an effective method to prevent the sale of alcohol to under age persons,
it is still dependent upon the sales staff to properly use the system. Any technical solution to this problem
can be circumvented and defeated by a person. Because the integrated system is not failure proof, it is the
opinion of staff that integrated software is not critical to ensuring that Rosemount Liquor will adequately
address the illegal sale of alcohol to underage persons. It is a viable option but the proper and continued
training of staff on the importance of the identification policies and procedures are most important.
The recommendation to provide two options to the owners of Rosemount Liquor on the penalty allows
the owners to make a decision on the computer technology purchase based upon their business practices
and how best to address the prevention of illegal sales in their business.
The option that does not mandate the purchase and installation of computer technology increases the
suspension period. This is based on the financial impact that a purchase would have and inserts an
additional five days of suspension as a "trade -off" for not mandating the purchase. The number of days
of the suspension, including the stayed days, is consistent with the prior penalty imposed for a third
violation and is consistent with the Hearing Officer's finding of the violation as a third offense.
All days will be imposed as consecutive and chosen by the City.
2
CHARTERED
To: Rosemount City Council
Date: October 28, 2008
341861v2 MDT RS220 -245
Mary D. Tietjen
470 US Bank Plaza
200 South Sixth Street
Minneapolis MN 55402
(612) 337 -9277 telephone
(612) 337 -9310 fax
mtietjen@kennedy-graven.com
http://www.kennedy-graven.com
From: Mary D. Tietjen, Assistant City Attorney
Dwight Johnson, City Administrator
Gary Kalstabakken, Police Chief
MEMORANDUM
Re: Rosemount Liquors License Hearing
Background The matter of the liquor license for Rosemount Liquors has previously been before
the City Council. Rosemount Liquors had four violations involving under -age sales on the
following dates: March 24, 2005; February 23 and November 22, 2006; and, April 24, 2008. With
approval of the Council, the City and Rosemount Liquors entered into two Consent Orders related
to the first three violations (the second and third were close in time and addressed in one consent
order). Consistent with the City's past practice, those Consent Orders imposed the following
penalties: 1) first violation: $500 civil penalty; 2) second violation: $1,000 penalty and 3 -day
suspension; and 3) third violation: $1,500 penalty and 21 -day suspension (11 days stayed unless
another violation occurred within 36 months). The City's practice has been to apply a 36 -month
"look- back" period to determine the number of aggregate violations.
Rosemount Liquors' violation on April 24, 2008, was the fourth within a 37 -month period. They
served the 11 -day stayed suspension from the previous consent order. Chief Kalstabakken offered a
consent order related to the fourth violation, including a proposed $2,000 penalty and a 21 -day
suspension (12 days consecutive and 9 days stayed). However, Rosemount Liquors would not agree
to the proposed terms, and instead requested a hearing.
Hearing Officer's Recommendations. A hearing was held before Hearing Officer Jeffrey Carson
on September 12, 2008. The City presented its case and evidence through the testimony of Police
Chief Gary Kalstabakken. Rosemount Liquor owners Sean Schumacher and Charlie Christ also
testified at the hearing. Mr. Carson issued Findings of Fact, Conclusions and Recommendations on
October 6, 2008. He found that the penalties imposed by the City are within its legal authority and
are reasonable. He also found that the City's 36 -month "look- back" period for violations is
reasonable based on the evidence received at the hearing. Mr. Carson's recommended penalties are
1
attached to this memorandum. To summarize, he recommended the following: 1) 21 -day
suspension (all days stayed and conditioned upon compliance with numbers 2, 3, and 4; 2) $1,500
penalty paid within 30 days; 3) Rosemount Liquors must immediately adopt a policy of checking
identification of all customers; and 4) within six months, Rosemount Liquors must install computer
technology to insure compliance with age- identification procedures; failure to do so is grounds to
revoke the stayed 21 -day suspension.
Legal Authority and Options. The City Council may accept or reject the Hearing Officer's
recommended penalties, in whole or in part.
1. Civil Penalty. Under Minnesota law, the City Council may impose civil penalties
up to a 60 -day suspension and a $2,000 fine for each violation. Although Mr.
Carson correctly concluded that the City's past practice of penalties is within its
legal authority and is reasonable, his recommended penalty is not consistent with the
penalties imposed by the City for third violations. The Council has discretion to
accept the Hearing Officer's recommendation or impose a more severe penalty
based on past practice and up to the maximum authority under law.
341861v2 MDT RS220 -245
Staff recommends that the Council accept the hearing officer's' recommendation for
a $1,500 fine and immediate adoption of a policy to check identification of all
customers. With respect to the 21 -day suspension of their license, staff recommends
the Council provide Rosemount Liquors with the following options:
a. An immediate 5 consecutive day suspension (with 16 days stayed conditioned
upon no further violations in the next two years) and installation of the computer
technology recommended by the hearing officer to ensure compliance with age
identification procedures; or
b. An immediate 10 consecutive day suspension of their license (with 11 days
stayed conditioned upon no further violations in the next two years).
2. Look -back period. The Hearing Officer concluded that the City's 36 -month "look
back" period for violations is reasonable. Because Rosemount Liquors' last
violation was in the 37 month, he concluded it should be treated as a third, not a
fourth, violation. Staff recommends the Council accept this finding by the Hearing
Officer's decision in order to provide consistency with how the City "counts"
violations.
cc: Charlie LeFevere, City Attorney
2
JEFFREY A. CARSON
WILLIAM G. CLELLAND
ELLEN M. SCHREDER
DAVID K. ROSS
DAWN E. SPELTZ
JOHN J. THAMES
City of Rosemount
Rosemount City Hall
2875 145 Street West
Rosemount, MN 55068
CARSON, GLELLAND Sic SGHREDER
ATTORNEYS AT LAW
PROFESSIONAL LIMITED LIABILITY PARTNERSHIP
6300 SHINGLE CREEK PARKWAY, SUITE 305
MINNEAPOLIS, MINNESOTA 55430 -2190
October 6, 2008
Re: Liquor License of Rosemount Liquor Mart
Dear Mayor, City Council and City Administrator:
I enclose my Findings of Fact, Conclusions and Recommendations in the above entitled
liquor licenses matter. If you have any questions of me, I can be available to discuss my
findings.
JAC: jmw
Enclosures
cc: Mary D. Tietjen, Esq., w /ends.
Steven L. Gawron, Esq., w/ ends.
Respectfully Submitted,
Jerey A. Carson
Hearing Officer
TELEPHONE
(763) 561 -2800
FAX
(763) 561 -1943
IN THE MATTER OF THE LIQUOR LICENSE SUSPENSION PCS LIQUORS,
LLC, DBA, ROSEMOUNT LIQUOR MART
FINDINGS OF FACT, CONCLUSIONS
AND RECOMMENDATIONS
The above matter came on for hearing before Hearing Officer, Jeffrey A. Carson, Esq., at
the Rosemount City Hall, located at 2875 145 Street West, Rosemount, Minnesota
55068;
The hearing was held on September 12, 2008, commencing at 10:00 a.m.; The City of
Rosemount was represented by Mary D. Tietjen, Esq. and Rosemount Liquor was
represented by Steven L. Gawron, Esq.
Based on the testimony, evidence and arguments of counsel, the Hearing Officer hereby
makes the following:
FINDINGS OF FACT
1. PCS Liquors, LLC, dba, Rosemount Liquor Mart (hereinafter referred to as
"Rosemount Liquor") holds an off-sale liquor license issued by the City of Rosemount. The
current owners of Rosemount Liquor, Sean Schumacher and Charlie Christ, purchased the
business in June of 2004.
2. In the past thirty -seven (37) months, Rosemount Liquor has had four (4)
violations involving under -age liquor sales. Those incidents occurred on March 24, 2005;
February 23, 2006; November 22, 2006; and April 24, 2008.
3. Rosemount Liquor's first violation, March 24, 2005, resulted from a routine
compliance check when an employee of Rosemount Liquor sold alcohol to an underage
individual without checking for identification. The employee/defendant pled guilty.
4. On June 5, 2005, the Rosemount City Council approved a Resolution and Consent
Order imposing a civil penalty in the amount of $500 relating to the violation of March 24, 2005.
The Consent Order required Rosemount Liquor to more stringently enforce identification
procedures and terminate employees who did not follow those procedures. Rosemount Liquor
agreed to the terms of the Consent Order.
5. Rosemount Liquor's second violation occurred on February 23, 2006. This
violation was discovered during a routine traffic stop and investigation in which a Rosemount
police officer discovered that a nineteen (19) year old male had just purchased alcohol at
CITY OF ROSEMOUNT VS
ROSEMOUNT LIQUORS
2
The violation of February 23, 2006
Rosemount Liquor without being asked for identification.
resulted in a conviction of the employee /defendant.
6. Rosemount Liquor's third violation was for failure of a routine compliance check
on November 22, 2006. One of Rosemount Liquor's employees sold alcohol to an underage
individual without checking identification. This third violation occurred prior to resolution of
the second violation (February 23, 2006) and also resulted in a conviction of the
employee/defendant.
7. In an attempt to resolve both the February 23, 2006 and the November 22, 2006
violations, Rosemount Chief of Police, Gary Kalstabakken, proposed penalties for both the
second and third violations in correspondence dated April 5, 2007. Rosemount Liquor accepted
the proposal.
8. On July 17, 2007, the Rosemount City Council approved a Resolution and
Consent Order imposing a civil penalty in the amount of $1,000 and a three (3) suspension of
Rosemount Liquor's license relating to the February 23, 2006 violation and a $1,500 plus twenty
one (21) day license suspension for the November 22, 2006 violation.
9. Rosemount Liquor agreed to the terms of the July 17, 2007 Consent Order. The
Order provided that the Rosemount Liquor license would be suspended for thirteen (13) days
with the remaining eleven (11) days stayed and imposed if another violation occurred within
thirty -six (36) months of November 22, 2006. The Consent Order of July 17, 2007 also provided
for an immediate eleven (11) day suspension (without due process) if Rosemount Liquor failed
another underage compliance check; for any other liquor violations a suspension would only be
imposed after allowing due process.
10. On April 24, 2008, Rosemount Liquor committed a fourth violation when it failed
another compliance check. Although there has been no final disposition of the criminal case
related to this violation, the parties negotiated service of the eleven (11) day stayed suspension
from the July 17, 2007 Consent Order and Rosemount Liquor served that suspension in May of
2008.
11. Police Chief, Garry Kalstabakken, sent Rosemount Liquor a letter dated May 29,
2008 proposing a Consent Order for the April 24, 2008 violation with penalties of a $2,000 fine;
twenty -one (21) days suspension with twelve (12) days served consecutive and nine (9) stayed;
Rosemount Liquor did not agree to the proposed Consent Order and requested this hearing.
12. The violation of April 24, 2008 was thirty -seven (37) months following the first
violation; at the hearing, Chief Kalstabakken acknowledged that a thirty -six (36) month "look
back" period was reasonable amount of time but felt justified in considering the April 24, 2008
as a fourth violation for purposes of imposing a penalty.
13. In both the Consent Orders executed between the parties and in the testimony of
Chief Kalstabakken, the look back period of thirty -six (36) months is deemed reasonable; that
CITY OF ROSEMOUNT VS
ROSEMOUNT LIQUORS
3
using a thirty-six (36) month look back period, the violation of April 24, 2008 would be a third
violation.
14. Rosemount does not use a matrix for enhancing its liquor violations as the City
Council wants the discretion to consider cases on an individual basis.
15. Both parties provided information at the hearing relating to look back periods and
penalties for liquor license violations; attached to these Findings and presented for Council
review and consideration are copies of Exhibits C -17 and C -18, showing the violations/penalty
matrix for surrounding Twin Cites' communities. The penalties imposed by Rosemount for
liquor law violation by Rosemount Liquor, while within the parameters allowed by state law,
Minn. Stat. §340A.415 (and adopted by Rosemount City Code 3 -1 -1) are higher than average
penalties provided by many other communities for third offense liquor violations.
16. Rosemount Liquor has served twenty -four (24) days of license suspension and has
paid $3,000 in fines from violations occurring on March 24, 2005; February 23, 2006; and
November 22, 2006. Eleven (11) of those suspended days were stayed from November 22, 2006
and were served because of the April 24, 2008 violation.
CONCLUSIONS
1. Under Minnesota Law (Minn. Stat. §340A.415, adopted by Rosemount City Code
3 -1 -1), the City of Rosemount has the authority to impose civil penalties for up to
sixty (60) days suspension and up to $2,000 in fines for each violation of the
liquor laws.
CITY OF ROSEMOUNT VS
ROSEMOUNT LIQUORS
4
2. A thirty -six (36) month "look back" period for violations of the liquor code is
reasonable based upon evidence received at the hearing. Rosemount has
informally adopted a thirty -six (36) month look back.
3. The penalties imposed by Rosemount to date are within its authority and are
reasonable.
4. The April 24, 2008 offense of Rosemount Liquors falls thirty -seven (37) months
after its first offense of March 24, 2005 and should be considered to be a third
offense.
5. The Rosemount City Council should consider the total fines paid and the days of
suspension served by Rosemount Liquor through May of 2008 in determining an
appropriate penalty for the April 24, 2008 violation.
CITY OF ROSEMOUNT VS
ROSEMOUNT LIQUORS
5
Respectfully Submitted,
A. Carson
aring Officer
6300 Shingle Creek Parkway
Suite 305
1Vfinneapolis, MN 55430
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CITY
First
Second
Third
Fourth
Apple Valley
(24 mos)
75
200
250
7 Day
Suspension
2000 30 Days
Eagan (24 mos)
500
1000
1500 7 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)
500
3 Consecutive
Days
6 Consecutive
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
Liquor License Violations Matrix May 6, 2008
Burnsville has a separate presumptive penalty matrix for au other vioianons roan sa.�e
to under age person. Penalties vary based upon the violation and the "look back" period
is 18 mos. after 1 30 mos. after 2 and 48 mos. after 31d.
IN THE MATTER OF THE LIQUOR LICENSE SUSPENSION PCS LIQUORS,
LLC, DBA, ROSEMOUNT LIQUOR MART
MEMORANDUM
In Reviewing and considering this matter, I considered several factors as mitigating even
though four (4) violations in the thirty-seven (37) month period are significant and of great
concern. The mitigating factors are:
1. The response by Mr. Schumacher and Mr. Christ has been to acknowledge all
offenses, including the offense of April 24, 2008 for which it is acknowledged the
City Council may impose a penalty.
2. Although no formal look back period or matrix has been established in
Rosemount, it would seem as if a thirty-six (36) month look back period is
reasonable and that would make the offense of April 24, 2008 a third offense.
3. Rosemount Liquor has been penalized in total $3,000 in fines and twenty -four
(24) days of served suspension, which they have agreed to, including eleven (11)
days in May of 2008 based upon the offense. of April 24, 2008. There has been no
criminal conviction of that case.
4. The documentary evidence in this case reflects that the Rosemount City Council
wants strict enforcement of liquor laws and consistency, while at the same time
being able to take each case into consideration on a violation -by- violation basis.
Although all of the four (4) non compliance cases are serious, none of the four (4)
have been egregious in nature.
5. A believe a reasonable possible requirement, or penalty if you will, of Rosemount
CITY OF ROSEMOUNT VS
ROSEMOUNT LIQUORS
Liquor would be to require and investment in the type of software technology that
will guarantee compliance at least as it relates to the area of age identification.
2
MEMORANDUM
TO: Mayor, Council and Administrator, City of Rosemount
FROM: Jeffrey A. Carson, Hearing Officer
RE: Rosemount Liquor Mart
DATE: October 15, 2008
CC: Mary D. Tietjen, Esq.
Steven L. Gawron, Esq.
At the request of counsel, I am providing you recommended penalties for the
liquor violation by Rosemount Liquor of April 24, 2008.
RECOMMENDED PENALTIES
1) Twenty -one (21) day suspension of liquor license, the entire twenty -one
(21) days stayed for two years conditioned that there be no further liquor
license violations; further being conditioned upon compliance with
paragraphs (2), (3) and (4) below.
2) One Thousand Five Hundred and no /100 ($1,500) fine to be paid within
thirty (30) days of the issuance of these penalties by the Rosemount City
Council.
3) Rosemount Liquor shall immediately institute a policy of checking
identification of all its customers.
Within six (6) months of the date that the Rosemount City Council imposes
these penalties, Rosemount Liquor shall install computer technology that
will ensure compliance with age identification procedures. Failure to
install this technology will be considered grounds to revoke the twenty -one
(21) day stayed liquor license suspension.
Respectfully Submitted,
Jeffrey A. Carson
Hearing Officer