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HomeMy WebLinkAbout6.e. Resolution and Consent Order Imposing Civil Penalty on Walgreen’s #4038 EXECUTIVE SUMMARY City Council Regular Meeting: January 31, 2021 AGENDA ITEM: Resolution and Consent Order Imposing Civil Penalty on Walgreen’s #4038 AGENDA SECTION: Consent PREPARED BY: Mikael Dahlstrom, Chief of Police Erin Fasbender, City Clerk AGENDA NO. 6.e. ATTACHMENTS: Resolution and Consent Order APPROVED BY: LJM RECOMMENDED ACTION: Motion to approve a resolution and consent order imposing civil penalty on Walgreen’s #4038 for a violation of the City's tobacco license regulation BACKGROUND On December 17, 2021, an under-aged person purchased tobacco at the City’s tobacco license establishment, Walgreen’s #4038, located at 15034 Shannon Pkwy, Rosemount, MN. The underage purchasers were 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 first violation at Walgreen’s #4038. 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. Walgreen’s #4038 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 $75 penalty for the first violation. RECOMMENDATION Staff recommends a motion to approve a resolution and consent order imposing civil penalty on Walgreen’s #4038 for a violation of the City's tobacco license regulation. 1 CITY OF ROSEMOUNT DAKOTA COUNTY, MINNESOTA RESOLUTION 2022 - 09 RESOLUTION AND CONSENT ORDER IMPOSING CIVIL PENALTY ON WALGREEN’S #4038 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 Walgreen’s #4038 (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 21 by an employee of Licensee on December 17, 2021 in violation of Minnesota Statutes, Section 609.685 (the “Violation 1”); 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, 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 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 1 to a civil penalty in the amount of Seventy-Five Dollars ($75); 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 2 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 Seventy-Five Dollars ($75). 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 1. 4. The City will impose, as the sole civil sanction for the Violations, a total civil penalty in the amount of $75 payable as set forth in paragraph 1 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. 5. Except as provided in paragraph 6, 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. 6. 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 penalty including the penalty agreed to pursuant to paragraph 1 hereof shall not exceed amounts authorized by law. 3 7. 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 461.12, 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 31st day of January, 2022. William H. Droste, Mayor ATTEST: ____ Erin Fasbender, City Clerk And agreed to by the Licensee; Walgreen’s #4038 Signature Title Date A-1 ATTACHMENT ONE LICENSEE TOBACCO & TOBACCO RELATED PRODUCTS SALES & SERVICE POLICIES AND PROCEDURES WAG POL WAG.POL.STO-006, Sale of Tobacco Products Policy, version 4.0 Page 1 of 9 Policy number: WAG.POL.STO-006 Policy title: Sale of Tobacco Products Approval date: October 1, 2021 Effective date: October 1, 2021 Version: 4.0 Owner: SVP Pharmacy and Retail Operations, Walgreens Description: This policy sets forth Walgreens requirements for the sale and marketing of Tobacco Products. Table of Contents 1. Purpose.................................................................................................................. 2 2. Scope ..................................................................................................................... 2 3. Definitions.............................................................................................................. 2 4. Policy ..................................................................................................................... 3 4.1 General Requirements ............................................................................................ 3 4.2 Selling Tobacco Products Responsibly...................................................................... 3 5. Selling Tobacco Products ........................................................................................ 4 5.1 The Card All Process ............................................................................................... 4 5.2 Valid/Acceptable ID ................................................................................................ 5 5.3 Limited Management Discretion ............................................................................. 5 5.4 Advertising & Marketing of Tobacco Products ......................................................... 6 6. Store Leadership Responsibilities ............................................................................ 6 7. Reporting Requirements ......................................................................................... 7 8. Related Policies, Procedures, and Guidelines ........................................................... 7 9. Contact Information ............................................................................................... 7 Page 2 of 9 WAG.POL.STO-006: Sale of Tobacco Products Policy, version 4 .0 EFFECTIVE DATE: October 1, 2021 1. Purpose This policy sets forth Walgreens ’ requirements for the advertising, marketing and sale of Tobacco Products. It also sets forth Walgreens’ expectations for compliance with this policy for Team Members permitted to sell Tobacco Products and Store Leadership, including the consequences for non-compliance. More stringent federal, state, and local laws will supersede in the event of a conflict with this policy. The goal of this policy is to comply with the Tobacco Control Act of 2009 and the Federal Food and Drug Administratio n’s implementing regulations, which prohibits youths from purchasing Tobacco Products because of the risk that the use of these products by minors could lead to long-term addiction to nicotine -based products and poor health and illness. 2. Scope This policy applies to all Walgreens Team Members involved in the sale of Tobacco Products, including Team Members with merchandising and marketing responsibilities related to Tobacco Products. 3. Definitions Term Meaning Card All Process The practice of requesting an approved, valid ID from every Tobacco Product purchaser. Store Leadership Field leadership roles, including Store Manager, Assistant Store Manager, Shift Lead, District Manager, and above. Tobacco Products A product containing nicotine, excluding smoking cessation products, or a product that is intended for use with a nicotine containing product, e.g., cigarettes, cigars, chewing tobacco, loose tobacco, pipes, pipe tobacco, snuff, vapor products (e.g. e -cigarettes, etc.), and cigarette wrapping papers. Team Member Any employee and/or officer of Walgreens. Minimum Age of Sale Effective December 20, 2019, federal legislation was signed into law that raised the legal age to purchase any kind of tobacco product to 21 regardless of the purchasing age previously permitted by state or local laws or requirements. Page 3 of 9 WAG.POL.STO-006: Sale of Tobacco Products Policy, version 4 .0 EFFECTIVE DATE: October 1, 2021 4. Policy It is important to be aware that the legal and regulatory requirements for the sale of Tobacco Products may vary by state. Team Members must understand, acknowledge and abide by all company policies and procedures, in addition to applicable federal, state, and local municipal laws and regulations. 4.1 General Requirements Walgreens takes our responsibility to prevent the sale of Tobacco Products to minors very seriously in view of the substantial public health issues at stake. It is Walgreens’ policy tha t all customers, regardless of age, present a valid, government issued identification (“ID”) to purchase Tobacco Products . This is referred to as Walgreens Card All Process (see Section 5.3 for information about the very limited circumstances where managem ent discretion may be permissible related to the Card All Process). Team Members and Store Leadership must report all alleged violations of this policy and/or the laws concerning the sale of Tobacco Products, as soon as they become aware of such an allegation, in accordance with Section 7 below. Failure to comply with Walgreens Card All Process will result in termination of employment, in accordance with Walgreens’ Zero-Tolerance Policy. 4.2 Selling Tobacco Products Responsibly Walgreens is committed to assuring that all Team Members engaged in the sale of Tobacco Products have knowledge of the public health considerations, and adhere to all company policies, procedures, federal, state and local laws governing the sale of Tobacco Products. It is unlawful to sell, give, or provide Tobacco Products to any customer/person under the age of 21. All Walgreens stores must comply with the federal Minimum Age of Sale for Tobacco Products. Under Federal law, it is illegal to sell any Tobacco Product to anyone under the age of 21. The Minimum Age of Sale supersedes any and all state or local laws. Zero-Tolerance Policy Walgreens’ position that any Team Member that has been appropriately trained on and who acknowledges that they have read this policy and then intentionally violates the Card All Process set forth in Section 5.1, will be subject to termination. Page 4 of 9 WAG.POL.STO-006: Sale of Tobacco Products Policy, version 4 .0 EFFECTIVE DATE: October 1, 2021 All Team Members must review this policy and related procedures, complete training, and acknowledge Walgreens’ Zero-Tolerance Policy for violations of the Card All Process prior to being allowed to sell Tobacco Products at the point of sale (“POS”) register. Some states and municipalities also require the Team Member selling Tobacco Products to be of a certain age. Please refer to the Tobacco Restrictions document to determine if a selling age also applies to your location and the Appendix to this policy for the syst ems, processes and controls related to these selling restrictions. Note: Store Leadership is responsible for reviewing and maintaining active store licenses/certifications to sell Tobacco Products on a regular basis. Upon regular review, if Store Leadership discovers that a license/certification has expired, the store shall immediately discontinue sale of Tobacco Products and Store Leadership must escalate the expired license to the Shared Services Licensing Administration department for renewal. Tobacco Products cannot be sold until all required renewal requirements are met. 5. Selling Tobacco Products 5.1 The Card All Process Team Members must request an ID from every customer that purchases Tobacco Products to complete the required procedures at the POS register, without exception. Team Members are prohibited from selling Tobacco Products to minors —any customer/person under the age of 21. Team Members shall not sell Tobacco Products to any customer who does not produce a valid ID (see Section 5.2 below). Team Members shall scan a customer’s ID, unless the customer objects. If customers inquire about the data that is obtained and stored by Walgreens when their ID is scanned, please inform them that the system only reads the data on the ID and Walgreens retains ONLY the customer’s date of birth in our system. No other information is retained during the scanning process. If the customer objects to scanning their ID, or the form of approved ID presented cannot be scanned, the Team Member must still review the ID to confirm that the customer meets the Minimum Age of Sale and enter the customer’s date of birth (“DOB”) directly from the valid/non- expired ID (see list of approved ID’s below) using the customer’s ID information only. Intentionally entering a DOB other than that of the customer purchasing the Tobacco Products is a violation of the Card All Process and will result in termination of employment. Page 5 of 9 WAG.POL.STO-006: Sale of Tobacco Products Policy, version 4 .0 EFFECTIVE DATE: October 1, 2021 5.2 Valid/Acceptable ID • A valid ID must not be expired, must have a photo reasonably resembling the customer presenting the ID, and must not appear to have been altered. • Walgreens has the right to determine acceptable ID. Below are the ONLY forms of photo identification that are acceptable: o State Driver's License (includes U.S. territories) o State ID Card o Digital State Driver’s license/ID (Select States Only) o Temporary State Driver’s License or ID (must be valid per the above requirements) o Temporary Department of Corrections State ID o U.S. Military ID Card o U.S. Passport Book or Passport Card and/or Canadian Passport (all stores in all states can accept) o Foreign Passport and/or Foreign Driver’s License (Select States only can accept; see list for applicable states) o Tarjeta Electoral de Puerto Rico/Puerto Rico Voter Registration Card o Tribal ID Note: It is not acceptable for a customer to present a digital image or photo of their ID outside of select digital state IDs or driver’s licenses detailed above . If you are unsure of the validity of an ID, consult with Store Leadership immediat ely to determine if the sale may occur. 5.3 Limited Management Discretion Occasionally, Team Members may require support from Store Leadership to address customer concerns with the Card All Process. In those limited circumstances, Store Leadership is authorized to complete a discretionary override at the POS Register. Store Leadership must verbally obtain the customer’s DOB, which must then be entered into the POS register verbatim. NOTE: It is not permissible to override the Card All Process for any customer that does not reasonably appear to be at least 30 years of age. Page 6 of 9 WAG.POL.STO-006: Sale of Tobacco Products Policy, version 4 .0 EFFECTIVE DATE: October 1, 2021 5.4 Advertising & Marketing of Tobacco Products Tobacco Products may only be displayed and stored in an area of the store where customer access is restricted and a Te am Member’s assistance is required to retrieve the Tobacco Product. In -store advertising for Tobacco Products shall only be located where Tobacco Products are displayed and sold, and is limited to product brand names, logos, trademarks, and pricing. In some jurisdictions, it may not be permissible to accept manufacturer’s coupons for discounts or rebates on the price of Tobacco Products. Please refer to the Tobacco Restrictions reference for a listing of areas and stores that cannot accept any manufacturer’s coupons for any Tobacco Product. Distribution of free samples of Tobacco Products is not permitted on store prope rty. 6. Store Leadership Responsibilities • Store Leadership is accountable for overseeing and ensuring Team Members compliance with this policy. • Store Leadership must ensure all Team Members have completed all required training before engaging in sales of tobacco products to customers. Allowing Team Members to sell Tobacco Products before completing the required training will result in disciplinary action, up to and including termination. If necessary, refer to the Team Member’s training records. • Store Leadership must inform all Team Members who sell Tobacco Products that they are subject to random, unannounced compliance checks. • Store Leadership is responsible for taking appropriate disciplinary actions, up to and including termination , according to Walgreens’ Zero Tolerance Policy . In the event that Store Leadership is not clear if a policy violation occurred, Employee Relations must be consulted regarding the appropriate disciplinary actions for Team Members. Store Leadership is accountable for all instances of noncompliance that occur in their store, district, or region. Noncompliance by Team Members within a store, district or region with this policy, related procedures, and Tobacco Products laws will be considered during the performance evaluation of Store Leadership and may affect promotional considerations. Repeated, or multiple violations at a single store or within a distri ct or region will result in disciplinary action, up to and including termination. Page 7 of 9 WAG.POL.STO-006: Sale of Tobacco Products Policy, version 4 .0 EFFECTIVE DATE: October 1, 2021 7. Reporting Requirements • Store Leadership must report all Sale of Tobacco Products Policy performance checks, and regulatory body or law enforcement checks (b oth passed and failed) to Litigation and Regulatory Law within 24 hours of receiving notice. Please submit these reports by going to StoreNet> Policy & Procedure> Compliance Reports> Compliance Inspection Forms. • Team Members and Store Leadership must report all other potential policy violations to the Compliance office through the Company’s Confidential Hotline at 855-WAG -CODE or email the Compliance office at www.tnwgrc.com/walgreens within 24 hours of discovery. 8. Related Policies, Procedures, and Guidelines For more information, please refer to the following: Policy/Procedure Number Title WAG.POL.ERS-007 Discipline Policy (Found on AskWalgreens, keywords “Discipline Policy”) Tobacco Restrictions document Foreign Passport and/or Foreign Driver’s License List (Select States only can accept) Compliance Inspection Forms 9. Contact Information For questions about this policy and/or procedures, please contact Ask the Retail Hub . Name, Title Email Phone Ask The Retail Hub; Full Store/Front End > Compliance > Other Employee Relations askhr@walgreens.com +1 800 825 5467 Compliance Confidential Hotline www.tnwgrc.com/walgreens +1 855 WAG CODE Page 8 of 9 WAG POL WAG.POL.STO-006, Sale of Tobacco Products Policy, version 4.0 EFFECTIVE DATE: 1 October 2021 Appendix Tobacco Sales Processes 1. Process for Jurisdictions with Selling Age Requirements The POS system blocks underage Team Members from selling Tobacco Products in these locations. 2. ID Verification Processes • When a Team Member scans the Tobacco Product, the POS system will issue a prompt that will ask Team Members to “Verify Photo ID and Scan ID or key in customer’s birth date and touch Enter (mm-dd-yyyyy)”. The cashier must scan the ID provided by the customer or enter the customer’s date of birth from the valid/non -expired approved customer ID. Note: The POS system does not validate the expiration date of the ID. The Team Member is responsible for completing this verification. • When checking the ID, always keep in mind that the rules for ID validity can vary. For example, some states do not allow retailers to accept certain forms of foreign identification for the purchase of Tobacco Products. Discuss specific local requirements with Store Leadership. • NOTE: Many illegal sales are made to minors who produce an ID showing that they are, in fact, under the legal age to purchase Tobacco Products. It is important to devote the time and effort needed to establish that a customer is of age by recognizing a valid ID. Do not rush or skip the verification process because of customer pressure, long lines, or peer pressure. If you feel you cannot proceed with the verification process under the circumstances, contact Store Leadership right away. 3. Recognizing Valid ID When checking an ID, concentrate on these 4 points: • Face : Look at the picture identification. Is it a fairly recent photo? Does it match the person who is presenting the ID? If the answers are NO, do not proceed with the transaction or request assistance from Store Leadership. Page 9 of 9 WAG POL WAG.POL.STO-006, Sale of Tobacco Products Policy, version 4.0 EFFECTIVE DATE: 1 October 2021 • Age: Look at the date of birth on the ID. Ensure the person in front of you does not look too young for the date of birth on the ID. • Date : Check the expiration date. It must be an active, non -expired ID. • Suspicions: Make sure nothing else raises concerns. If you feel anything is not right, such as the card is altered, call Store Leadership to determine if the sale should occur. o Team Members: Must not enter a fake date of birth (DOB), their own DOB, accept a customer’s verbal DOB as proof of age, or accept a photo of an ID as a proof of age or form of valid ID. 4. Suspicious Customer Behavior Be conscious of the following situations: • A minor exchanging money with a customer who may legally purchase a Tobacco Product. • A minor selecting a Tobacco Product for a legal age customer to purchase. • If you suspect a customer is purchasing Tobacco Products for minors, it is your responsibility to ask for a valid ID from all persons in the party. • If you have doubts or suspect that someone is buying Tobacco Products for a minor, call a member of Store Leadership immediately to make the final decision about the sale. • Note: This does not include adults merely shopping with a minor.