HomeMy WebLinkAbout20090615 - VI-12
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To: Mayor Hicks and City Councilmembers
From: Melanie Mesko Lee
Date: June 10, 2009
Re: Proposed Ordinance Amendment and Policy Changes relating to Liquor License
Compliance Check Violations
Requested Action
Council is requested to approve the first reading and order a public hearing for July 7, 2009 to consider an
ordinance amendment relating to presumptive civil penalties with regards to failure of liquor license
compliance checks or sales to a minor as well as procedure establishing a Best Practice Business Program
to team with local liquor establishments on ways to eliminate sales of alcohol to youth.
Background
The City currently has guidelines in place to provide for civil penalties in the case of liquor license
compliance check failures. These guidelines were adopted in December 2000. Over the last few months,
staff has researched some changes for consideration. The Administrative Committee of the Council
(Hollenbeck [chair], Elling Schultz, Nelson) met in late April and provided recommendation to staff to
revise the presumptive penalty process, the civil penalty guidelines, and incorporate a Best Practices
Program. Below is a highlight of these proposed changes:
Procedural Changes for Consideration-Currently, during the first violation (within 24 months), the
Council is notified of the failure and given 7 days to request a hearing of a licensee. If this hearing isn't
requested, staff administratively processes the civil penalty. Subsequent violations must go through the
hearing process, even if the violator agrees that the violation has occurred and wishes to simply pay the
fee.
The revised process would allow staff/city attorney to submit a stipulation to the violator; if the violator
agrees to the penalty (as adopted by the Council), the presumptive penalty is then imposed, and a hearing
before the Council is not necessarily required. Before the stipulation is sent to the violator, the Council
will be notified of the failure and be given 7 days to request a hearing, similar to the current first violation
process. Additionally, licensees also have an opportunity to request a hearing. Both the City and
licensees have an opportunity for a hearing; however if both waive it, then the penalty can be applied
administratively. It is legal's recommendation that these stipulations also be put before the Council as
Consent Agenda items.
Amount of Penalties-The Administrative Committee recommended an increase in penalty amounts,
which were last adjusted in late 2000. The proposed penalties are two-tired, one range for Best Practices
Program establishments, and one for those who do not participate in the program. The penalties can be
found in the attached proposed ordinance amendment.
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Best Practices Prog~--the City will be rolling out a Best Practices Program to licensees with the goal
of eliminating sales to youth. This is a voluntary program, and participating licensees agree to certain
"best practices"; in exchange, if a violation does occur, the penalty tier is lower than if they were not
participating in the program. Staff is working together on finalizing the elements of the program, with the
goal to provide licensee notification this summer, and begin training opportunities this fall for businesses
interested in participating in the Best Practices Program.
ORDINANCE NO. -THIRD SERIES
AN ORDINANCE OF THE CITY OF HASTINGS, MINNESOTA
AMENDING CHAPTER 111 OF THE HASTINGS CITY CODE
PERTAINING TOALCOHOLICBEVERAGES
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HASTINGSAS
FOLLOWS:
Chapter 111 of the Hastings City Code is hereby amended and Section 111.14 shall he
amended as follows:
§ 111.10 SUSPENSION OR REVOCATION OF LICENSE.
(A) The Cite Council may suspend an}~ ret<1i1 license for up to 60 days or revoke ar-y retail
license for the sale of alcoholic beverages upon the violation of any prop-ision or condition of this
chapter or of am state or federal lacy regulating the sale of alcoholic beverages. The City Council
shall revoke the license for am willfiil violation. which under the laws of this state.. is grounds for
mandatory revocation.
(B) Before the Council shall suspend or revoke any license issued under this chapter. the
licensee shall be given at least 10-days' notice stating the time and place of the hearing and the
charges against the licensee. The notice shall also state that the licensee may have a hearing
conducted under M.S. ~~ 1457 through 14.C>9 of the Minnesota Administrative Procedures Act.
as they may be amended from time to time.
{C) Pr•esumhtive C'ivi! Peru~lties. The follo~ying~rocess and presumptive penalties shall
apply only to liquor license violations involving failure of routine alcohol sales compliance
checks or sales of alcohol to underage persons There shall be no presumptive penalties for liquor
license violations of other types and the Cih Council may impose any penalties allowed by lacy
for those violations after the notice and opportunity for hearing provided in division {B) above.
(1) PtnTczse. 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 on-sale and off-sale licensed premises These penalties are presumed to be appropriate
for evei~~ case: ho~yever. the Council may deviate in an individual case ~yhere the Council finds that
there exist substantial reasons making it more appropriate to deviate. When deviatin6 from these
standards the Council shall provide written findinUs that support the penalty imposed.
(2) Be,cr Prcretices Prc~~~-cnn. The Best Practices Proar•un (BPP} is a program
offered by the City of Hastiness with the intent to eliminate sales of alcohol to youth Participation in
the BPP is voluntary. it is offered to both off-sale and on-sale liquor establishments and offers
incentives to participatin« licensees to undertake certain practices ~yith the obiective of avoidin,
sales to minors. The City of Hastings ~yi11 assist participating businesses ~yith training and a
different set of presumptive penalties ~yill apply to those ~yho choose to participate should an illegal
sale to a minor occur. Licensees may enroll at any time during their license period and ~tiill be
offered an opportunity at the time of a~vmal license renewal. Interested licensees will provide
written intent to participate. and will be cateUorized as a Best Practices Business once they have
successfully completed the requirements of the program. It is the licensee's responsibi}iri- to ensure
continued compliance with the program: the City may conduct random verification checks and
recertification «°ill be required during annual renewal of a liquor license If a Best Practices
Business has t\vo or more violations within a three year period the City Council may choose to
disregard a business' participation in the program and apply penalties different than the BPP
presumptive penalties.
Re uiretl Items
^ A ntittiunun of 75% of alcohol selling entplo~~ees (at an~~ one time) ha~~e attended
alcohol training conducted b~~ Hastings Police Department (or other training pre-
appro~ ed b~~ Cih~ of Hastings)
^ Business has an intental program in place for pro~~idittg ongoing training of both ne~~-
and current alcohol selling entplo}~ees (cop} of program and tracking must be
provided}
^ Business has an intental polio}- requiring identification checks for an}'one appearing
to be ~0 ~~ears old or under (cope of progtnm and tracking must be pro~-ided)
Electi~~es (must ha~~e ~0 toints)
^ 14 Business has an intental etttplo~ ee re~~ ard/recognition program for employ ees t~~ho
catch ant' underage customer attentptin~ to purchase alcohol
^1(l Business uses att automated ID card scamter s~-stem or
^2O Business uses an automated ID card scatmer s~ stem that is integrated into register
s~~steut~
^ 1(1 Business has an internal polio} setting a tnittimum age of 21 for entplo} ees to sell
alcohol products
^10 Business agrees to tweet inunediatek ~~ith Cir\~ staff follot~~ing a ~~iolation (instead of
~~aiting far criminal court proceedings
Total electi~ es selected
"C<Jn)JOf el Cf n!iflJ <)tl kilntJfNtY /U Sl :cfC'nJS
(;} ZTndera~e :Scales cued C'omplicnvee C'l~eek Fcrillrr~es. The follo~~ing
presumptive penalties apple to liquor license violations involving failure of routine alcohol sales
compliance checks or sale of alcoholic beverages to an underage person(s)
Viol.ttion Best Practices Business Non-Best Practices Business
1'' $SOfI cis it penalh $1.000 cis it penally and ~ dad
license suspension
~"` (tr~ithilt 2-l $750 ci~~il penaln~ and ; da~~ $1.500 ci~~il penalh~ and (da}~
months of first license suspension license suspension
~~iolation)
~" (~s~ithin 2-l $1.000 civil penah}~ and 6 day $2-000 civil penalty and 9 day
months of first license suspension license suspension
~~iolation)
-l" (~~~ithin 2-l Rey ocation Revocation
months of first
~ iolation)
"nest practices" itesi~naUOn apples to thiJx license holders ~~ho at the time of the ~ iolation
are registered ~~ith the C'ih to participate anil ~u~e in compliance ~~ith its alcohol 'Best
Practices Pro~arun".
(a) Mzrltiple I iolcrrirJr7.r. At a licensee-s first appearvtee before the
Cite Council- the Council shall act upon all of the ~~iolations that have been alleged in the notice
sent to the licensee. The Council in that case shall consider the presumptive penalty for each
violation under the 1$` Violation column in division (3) above The occurrence of multi
violations shall be a basis for deviation from the presumptive penalties in the Council's
discretion.
(b) :Sarhsec~arent Violcrtiovt. Violations occurring after the notice of
hearing has been sent to the licensee, but prior to the hearing shall be treated as a separate
violation and treated as a subsequent violation before the City Council unless the City
Administrator and licensee agree in ~yritin~ to add the violation to the appearance and hearing on
the initial violation for which notice Baas sent. The same procedure shall apply to a 2"`' bra or 4"'
violation considered before the Council.
(c) :Subsec~uer~t A~a~~ecrrar~ces. Upon a second third or fourth
appearance before the City Council by the same licensee the Council shalt impose the
presumptive penalty for the violation or violations giving rise to the subsequent appearance
~~ ithout regard to the particular violation or violations that were the subiect of the first or prior
appearance. Ho~~ ever_ the Council may consider the amount of time elapsed bete een
appearances as a basis for deviation from the presumptive penalties imposed b~ this section
(d) ComJnrtcrtion of i'iolcrtiar~s. Multiple violations are computed b~
revie~~ ing the time period of the t~~ o (2) rears inm--ediately prior to the date of the most current
violation.
(e) :Sti~~ulaticrrr.c in Liezr ofHecirin; When a liquor license violation
involves a licensee's failure of a routine alcohol sales compliance check or sale of alcohol to an
underage person or persons to ~yhich these presumptive penalties apply documentation of the
illegal sale shall be sent to the City Council b~~ either the Chief of Police or the Ciri-
Administrator, together ~~~ith notice of the applicable presumptive penalty If no Councilmember
objects to application of the resumptive penalty or other~~°ise requests that the matter be brought
before the Council ~~-ithin 7 days_ the Ciri Administrator or City Attorney may enter into a
~~ritten stipulation ~~ith the licensee which shall include a ~~~aiver of further notice and hearing b~
the licensee a recitation of stipulated facts describing the alleged violation Ind setting forth the
applicable presum five penalty to be im op sed provided that all such stipulations shall be subject
to the approval of the Ciri Council and if such approval is not ;ranted the licensee shall have the
right to ~aithdra~~ its ~raiver of hearing and to demand a hearing before the Council
(fl Other- Pervcrlties. Nothing in this section shall restrict or limit the
authority of the Cite Council to suspend a Liquor license up to sixty (6O}days to revoke the
license, to impose a civil fee not to exceed t~~-o thousand dollar ($2 OOO O(>) to impose conditions
or to take any other action in accordance with la~~- provided that the license holder has been
afforded an opportunity for a hearing in the manner provided b~~ this Chapter
(D) Costs. Once a notice of intent to revoke or suspend a license has been mailed to the
licensee, the licensee becomes responsible for all reasonable costs of investigation zdministration
and hearings associated ~~~ith the action as a condition of reinstatement termination of suspension
or dismissal of the allegations prior to a hearing
Council member moved a second to this Ordinance, and upon being
put to a vote it .vas unanimously adopted b~- all Council members present. ,
Adopted b~- the Hastings City_ Council on this _ day of ~. 2O09, by the
following vote:
Ayes
Nays:
Absent:
CI TY OF HASTINGS
Pau] J. Hicks. Mayor
ATTEST:
Melanie Mesko Lee. Cit<- Clerk
I hereby certifi that the above is a tnie and correct copy- of the Ordinance presented to
and adopted b~- the Cite of Hastings. County of Dakota. Minnesota, on the day of
2009. as disclosed by the records of the City of Hastings on file and of record in the office.
Melanie Mesko Lee.
City Clerk/Assistant Cite Administrator
June 11, 2009
PERSONALL Y.SERVEI) UPON [IN,S'ERT NAME OF BUSINE.S.SJ
Mr. or Mrs. ,General Manager
[L•asert y~ame of Establi.SI9111C'f1tJ
[Insert address of Es7abli.Sl9/17C?1')tJ
[I~asert Cih%, ~S'tate ai~~d Zi)~ CodeJ
RE: HEARING N(1TICE
Alleged' L•ltoxicatiilg Lidreor License I iolatior~ at [i~~sert yla~lic~ of esta(~lislv7~erltJ
Dear Mr. or Mrs.
Records of the City of Hastings indicate that the following violation of State law and the
Hastings City Code have occurred at [insert na~»e of establishr~u~ntJ:
1. On [insert elate of c~fferaseJ, [inrer-t ~~amc~ of violator J, an employee, did sell intoxicating
liquor to an underage person in violation of State law and Hastings City Code Section
111.10. y y
Pursuant to Hastings City Code Section 111.10, the City Attorney will be presenting the
alleged intoxicating liquor license violation before the Hastings City Council on [i~~~sert data of
lu~aringJ, [insert time of hearil~~7J p.m. Enclosed please find a Hearing Notice regarding the
alleged liquor violation.
Minnesota Statutes ~340A.41.5 and Hastings City Code Section 111.10 provide that the
City Council may revoke a license, suspend a license for up to silty days, or impose a civil tine
not exceeding $2,000.00 far each violation of State law or the City's intoxicating liquor and 3.2
percent malt liquor ordinance. In addition, Hastings City Code Section 111.10 provides
presumptive civil penalties for violations of laws relating to alcoholic beverages.
In order to avoid a public evidentiary hearing before the City Council on the alleged
violation, the City of Hastings and you may enter into a Stipulation of Facts and Civil Sanction.
A proposed Stipulation is enclosed. if a Stipulation is executed, it would be presented to the City
Council and no hearing would be held.
[I~~se~-t Name of Establishn~ey~tJ
June 11, 2009
Page Two
Once you and your attorney have had a chance to review the Notice and Stipulation,
please contact the undersigned.
Very truly yours,
FLUEGEL LAW FIRM P.A.
Daniel J. Fluegel
Attorney for the City of Hastings
DAF/Imp
Enclosures: Hearing Notice, Stipulation of Facts and Civil Sanction & Police Reports
cc: Melanie Mesko-Lee, City Clerk and Assistant City Administrator
CITY OF HASTINGS
DAKOTA COUNTY, MINNESOTA
In Re:
City of Hastings Liquor Licensing
Complaint Against
STIPULATION OF FACTS
AND CIVIL SANCTION
[ir7sert nan7e of es7ablishn7entJ
The City of Hastings and its undersigned attorney, and [insert /'7at77e of'establish/77entJ
through its undersigned authorized officer, hereby agree and stipulate as follows:
1. [ir/se/ t /~7a/ne of estahlishn/entJ islicensed under Hastings City Code Chapter 111, to
operate an on-sale intoxicating liquor establishment at [i/'/serf acldi-ess of estahlish/77e/'~tJ, in the
City of Hastings.
2. On [i/'7sert cJale of c~ffer7seJ, [I/7b'e1•t {la/77e of'violato~ J, an employee of [i//.5'e/7 /'/a/77e of
establishn7er/tJ, did sell intoxicating liquor to an underage person in violation of State law and
Hastings City Code Section 111.10.
3. This constitutes [insert /'game of estahlishn/et/tJ's [seco/9G~ tl7ircl or, fo7/rthJ liquor license
violation pursuant to Hastings City Code Section 111.10. City records indicate that [i/7sert narrn~
of es7ablrshmer/tJ vlOlated Gty Code SeCtlon 111. I O On [/Y1.SC'I't clatB(s) of prior riolation(s)J.
4. Copies of the Hastings Police Department Reports regarding this incident are
incorporated into this Stipulation by reference.
5. [rose/•t r~a/77e of estahlishmentJ's liquor license is suspended for [second offense: two
days] [third offense: five days] [fourth offense: revocation of liquor license]. The imposition of
the suspension shall be scheduled by City staff and the following additional condition applies:
a} Payment of civil sanction in the amount of [second offense: $750.00] or [third
offense: $1,000.00] or [fourth offense: $2,000.00] by [insert elate paymeht rs dz~eJ.
6. [insert name of establishmerltJ waives its right to the hearing provided by Minnesota
Statutes X340.415 and Hastings City Code Section I I 1.10.
7. The civil sanction set forth in Section 5 is contingent upon the Hastings City Council's
approval. If the City Council rejects the sanction agreed to in this Stipulation in favor of more
severe sanctions, [insert name of establishmer~tJ has the absolute right to withdraw its waiver of
hearing and to have a hearing before the City Council.
Dated: June I I, 2009 FLUEGEL LAW FIRM P.A.
BY:
Daniel J. Fluegel, Atty. Reg. #0303112
Attorney for the City of Hastings
1303 South Frontage Road, Suite _5
Hastings, MN 55033
Telephone: (651)438-9777
Dated : [IN,SERT NAB 1E OF E:STABLLS'H~1~IENTJ
BY:
TITLE:
CITY OF HASTINGS
DAKOTA COUNTY, MINNESOTA
In Re:
City of Hastings Liquor Licensing
Complaint Against
HEARING NOTICE REGARDING
ALLEGED LIQUOR LICENSE
VIOLATIONS
[rr~sert f'~ame of e'stablishnlentJ
TO: [INSERT NAA~IE' OF ESTABLISHMENT AI)DRE~SS OF E'STABLISH~ 1ENTJ,
HASTINGS, MINNESOTA, 55033 }
FROM: DANIEL J. FLUEGEL, CITY ATTORNEY FOR THE CITY OF HASTINGS
YOU, AS A LIQUOR LICENSEE, ARE HEREBY INFORMED that on the
day
of , 20, at p.m., in the Council Chambers of the Hastings City Hall, 101
Fourth Street East, Hastings, Minnesota, the Hastings City Council will conduct a hearing,
pursuant to Section 111.10 of the Hastings City Code and Minnesota Statutes ~340A.415,
regarding allegations that the licensee violated provisions of State law and City ordinances
regulating liquor establishments, as follows:
1 . On [l17.SC'1't Cf'C/t C' Uf Of fC'iLSC'J, [//l.SC'J't i?CIJIIC' Of i'!Ot'C7t0/~, an employee of [If9.SC'1'1 IIC1197L' Of
C'J'tCl~)~l.SI9191C'I)tJ did sell IIItOYICatltlg IlgLlor t0 an UIlderage person in violation of State Iaw
and Hastings City Code Section I 11.10.
If your establishment is found to be in violation as charged, the City Council may revoke
the license, impose a suspension for up to sixty (60) days, impose a civil fine not to exceed
$2,000.00 for each violation, or a combination of suspension and a civil fine.
You are entitled to be present at the hearing and to be represented by an attorney. If the
hearing is contested, you are entitled to call witnesses, present probative evidence, cross-examine
witnesses, and submit rebuttal evidence, all as allowed by Minnesota Statutes ~ 14.60.
Dated: June 1 I, 2009 FLUEGEL LAW FIRM P.A.
BY:
Daniel J. Fluegel, Atty. Reg. #0303I 12
Attorney for the City of Hastings
1303 South Frontage Road, Suite 5
Hastings, MN 55033
Telephone: (651)438-9777