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Home My WebLink About6.l. Resolution and Consent Order Imposing Civil Penalty on Green Leaf Tobacco EXECUTIVE SUMMARY City Council Regular Meeting: December 18, 2018 AGENDA ITEM: Resolution and Consent Order Imposing Civil Penalty on Green Leaf Tobacco AGENDA SECTION: Consent PREPARED BY: Erin Fasbender, City Clerk Mitch Scott, Chief of Police AGENDA NO: 6.l. ATTACHMENTS: Resolution and Consent Order APPROVED BY: LJM RECOMMENDED ACTION: Motion to approve a resolution and consent order imposing civil penalty on Green Leaf Tobacco for a violation of the City's tobacco license regulation. BACKGROUND On November 18th, 2018, an under-aged person purchased tobacco at a City-licensed tobacco establishment, Green Leaf Tobacco, located at 3816 150th Street W. The underage purchaser was sold tobacco products by an employee of the establishment. This is a criminal violation by the employee and a violation of the City's ordinance regarding tobacco licenses. This is the second violation at Green Leaf Tobacco within the year. The sale of tobacco products to an underage person is a violation of City Code 3-9: Tobacco Products and Tobacco Related Devices. Following the illegal sales, police staff met with the management of the establishment to discuss the violation. In addition, the expectations and requirements of the City Code were reviewed and the policies and procedures of the business related to the proper identification of persons purchasing tobacco were discussed. The owner of Green Leaf Tobacco, Mohammud Mirib, has agreed to the terms of the attached Resolution and Consent Order imposing civil penalties on the license holder for this violation. The minimum administrative (civil) penalties are set by Minnesota Statute 461.12, Subd. 2, and require a $200 penalty for a second violation in a twenty four month period. Rosemount City Code further sets forth a minimum of one day suspension for a second penalty in a twenty four month period. RECOMMENDATION Staff recommends a motion to approve a resolution and consent order imposing civil penalty on Green Leaf Tobacco for a violation of the City's tobacco license regulation. 1 CITY OF ROSEMOUNT DAKOTA COUNTY, MINNESOTA RESOLUTION 2018 - RESOLUTION AND CONSENT ORDER IMPOSING CIVIL PENALTY ON GREEN LEAF TOBACCO, INC. FOR TOBACCO LICENSE VIOLATIONS WHEREAS, the City of Rosemount (the “City”) has issued a license for the sale of tobacco and tobacco-related products to Green Leaf Tobacco, Inc. (the “Licensee”); and WHEREAS, an illegal activity has occurred on the licensed premises of the Licensee, specifically, sales of tobacco products to a person under the age of 18 by an employee of Licensee on March 2, 2018, in violation of Minnesota Statutes, Section 609.685 (the “Violation 1”); and WHEREAS, an illegal activity has occurred on the licensed premises of the Licensee, specifically, sales of tobacco products to a person under the age of 18 by an employee of Licensee on November 18, 2018, in violation of Minnesota Statutes, Section 609.685 (the “Violation 2”); and WHEREAS, the occurrence(s) of the Violation(s) 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, Violation 1 is the first (1st) tobacco violation at the establishment of the Licensee within a twenty-four (24) month period; and WHEREAS, Violation 2 is the second (2nd) tobacco violation at the establishment of the Licensee within a twenty-four (24) month period; 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 tobacco 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 2 WHEREAS, on the basis of such representation and agreement by Licensee and assuming continuing compliance therewith, the City is willing to limit sanctions for Violation 2 to a civil penalty of Two Hundred Dollars ($200) and a one-day suspension of the tobacco license; 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 461.12. 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 Hundred ($200). 2. Licensee waives a written statement of charges, notice of hearing and hearing to which it is entitled by Minnesota Statutes, Section 461.12. 3. The undersigned admits the occurrence of Violation 2. 4. The City will impose, as the sole civil sanction for the Violation, a total civil penalty in the amount of $200 payable as set forth in paragraph 1 hereof, as well as one day suspension of the tobacco license. 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. 5. The one day suspension shall be chosen by the licensee, within 30 days of this agreement. Licensee shall provide a minimum of 7 days’ notice to the City Clerk and Chief of Police of the date the suspension will be executed, and will provide any proof necessary to illustrate proper execution of the suspension. 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 Statutes, Section 461.12, provided the total 3 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. LICENSEE GREEN LEAF TOBACCO, INC. _____ Print Name Title _____ Signature By Order of the City Council of the City of Rosemount this 18th day of November, 2018. William H. Droste, Mayor 4 ATTEST: ____ Erin Fasbender, City Clerk A-1 ATTACHMENT ONE LICENSEE TOBACCO & TOBACCO RELATED PRODUCTS SALES & SERVICE POLICIES AND PROCEDURES