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Home My WebLink About9.a. Tobacco Violation – Green Leaf Tobacco, Inc EXECUTIVE SUMMARY City Council Regular Meeting: December 3, 2019 AGENDA ITEM: Tobacco Violation – Green Leaf Tobacco, Inc. AGENDA SECTION: New Business PREPARED BY: Erin Fasbender, City Clerk Mikael Dahlstrom, Police Chief AGENDA NO. 9.a. ATTACHMENTS: City Code APPROVED BY: LJM RECOMMENDED ACTION: Motion to direct staff to proceed with the licensee’s request for a hearing for a violation of the City’s tobacco license regulation. BACKGROUND Compliance checks utilizing a cooperating underage purchaser were conducted on October 24, 2019, at the City's licensed tobacco license establishments. The purchaser entered Green Leaf Tobacco and was sold tobacco 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 establishment’s third violation that has occurred at the establishment within a two-year period. ISSUE The sale of tobacco to an underage person is a violation of City Code 3-9-6: Prohibited Sales. Following the illegal service, 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, Inc, Mohmmad Mirib, has requested a hearing on the matter of the civil penalty for this third violation. Kevin Sieben, Mr. Mirib’s attorney, brought forth comments during the ‘public comment’ section at the November 19, 2019 regular council meeting. Mr. Sieben stated the 7-day suspension for a 3rd violation within a 24-month period will have a significant impact on Green Leaf Tobacco’s business and is requesting lesser time. The first violation occurred on March 2, 2018 and the second violation occurred on November 18, 2018. Mr. Mirib waived his right to a hearing for both violations and agreed to the civil fine of $75 for the first violation and $200 fine plus a one-day suspension for the second violation. City Code states that the minimum presumptive civil penalty which must be imposed for the third violation within any two-year period is $250 and the license shall be suspended not less than seven (7) consecutive days for the third and subsequent offenses within a twenty-four (24) month period. 2 After comments by Mr. Mirib’s attorney at the meeting on November 19, 2019, Council requested that staff compile additional information related to the violations so that it could consider whether a more lenient penalty would be warranted. Because penalties for the 2018 violations were already imposed and paid, the Council is limited to considering whether there is sufficient evidence to find that a third violation occurred. Staff asserts that the underage purchase that occurred on October 24, 2019 clearly violated the law and that Mr. Mirib’s position that there were extenuating circumstances is not persuasive. Therefore, staff is recommending that the Council direct staff to proceed with scheduling a hearing as requested by the licensee. Chief of Police, Mikael Dahlstrom, will be present to discuss the recent violations in further detail. RECOMMENDATION Staff recommends a motion to direct staff to proceed with the licensee’s request for a hearing for a violation for the City’s tobacco license regulation. 11/25/2019 Sterling Codifiers, Inc. https://www.sterlingcodifiers.com/codebook/index.php?book_id=452 1/2 3-9-13: VIOLATIONS AND PENALTY: A. Misdemeanor Prosecution: Nothing in this section shall prohibit the city from seeking prosecution as a misdemeanor for any alleged violation of this chapter. It is not necessary that criminal charges be brought in order to support a determination of a license violation nor does the dismissal or acquittal of such a criminal charge operate as a bar to adverse license actions under this section. B. Violations: 1. Notice: A person violating this chapter may be issued, either personally or by mail, a citation that sets forth the alleged violation and that informs the alleged violator of his or her right to a hearing on the matter. 2. Hearings: a. Upon issuance of a citation, a person accused of violating this chapter may request in writing a hearing on the matter. Hearing requests must be made within ten (10) business days of the issuance of the citation and delivered to the city clerk or other designated city officer. Failure to request a hearing within ten (10) business days of the issuance of the citation will terminate the person's right to a hearing. b. The city clerk or other designated city officer shall set the time and place for the hearing. Written notice of the hearing time and place shall be mailed or delivered to the accused violator at least ten (10) business days prior to the hearing. Such hearing shall be open to the public. 3. Hearing Officer: A city official designated by the city council shall serve as the hearing officer. The hearing officer must be an impartial employee of the city or an impartial person retained by the city to conduct the hearing. 4. Decision: a. Hearing Officer Decision: A decision shall be issued by the hearing officer within ten (10) business days. If the hearing officer determines that a violation of this chapter did occur, that decision, along with the hearing officer's reasons for finding a violation and the penalty to be imposed under subsection C of this section, shall be recorded in writing, a copy of which shall be provided to the city and the accused violator by in person delivery or mail as soon as practicable. Likewise, if the hearing officer finds that no violation occurred or finds grounds for not imposing any penalty, those findings shall be recorded and a copy provided to the city and the acquitted accused violator by in person delivery or mail as soon as practicable. b. Costs: If the citation is upheld by the hearing officer, the city's actual expenses in holding the hearing up to a maximum of one thousand dollars ($1,000.00) shall be paid by the person requesting the hearing. c. Decision Final: The decision of the hearing officer is final. 5. Appeals: Appeals of any decision made by the hearing officer in accordance with state law. 6. Continued Violation: Each violation, and every day in which a violation occurs or continues, shall constitute a separate offense. 11/25/2019 Sterling Codifiers, Inc. https://www.sterlingcodifiers.com/codebook/index.php?book_id=452 2/2 C. Administrative Penalties: 1. Licensees: Any licensee found to have violated this chapter, or whose employee shall have violated this chapter, shall be charged a minimum administrative fine of seventy five dollars ($75.00) for a first violation of this chapter; two hundred dollars ($200.00) for a second offense at the same licensed premises within a twenty four (24) month period; and two hundred fifty dollars ($250.00) for a third or subsequent offense at the same location within a twenty four (24) month period. In addition, after the second or subsequent offenses, the license shall be suspended for a length of time determined by city council; not less than one day for the second offense and not less than seven (7) consecutive days for the third and subsequent offenses within a twenty four (24) month period. 2. Other Individuals: Other individuals, other than minors regulated by subsection C3 of this section, found to be in violation of this chapter shall be charged an administrative fine of fifty dollars ($50.00). 3. Minors: Minors found in unlawful possession of or who unlawfully purchases or attempts to purchase, tobacco, tobacco products, tobacco related devices, or nicotine or lobelia delivery devices, shall be subject to an administrative fine, or may be subject to tobacco related education classes, diversion programs, community services, or another penalty that the city believes will be appropriate and effective. The administrative fine or other penalty shall be established by city council resolution upon the city council's consultation with interested parties of the courts, educators, parents and children to determine an appropriate penalty for minors in the city. This administrative fine or other penalty may also be established by the schedule of fees, as it may be amended from time to time. (Ord. 2015-08, 11-2-2015, eff. 1-1-2016)