Loading...
HomeMy WebLinkAbout5F - Liquor License for MGM Wine & Spirits MEETING DATE: AGENDA #: PREPARED BY: AGENDA ITEM: DISCUSSION: Introduction The purpose of this agenda item is to present a resolution with findings to support the City Council's rationale and decision to approve the application of MGM Wine and Spirits for an off-sale liquor license. History MGM Wine and Spirits has applied for an off-sale liquor license to do business at 14173 Commerce. MGM submitted the required information and fees for this purpose. On August 4, 2008, the City Council conducted a public hearing to receive testimony with respect to issuance of the license. At the conclusion of the hearing, the City Council voted to close the public hearing, discussed the license application and voted to direct staff to prepare a resolution with findings of fact to support its reasons for issuance of the license. Current Circumstances Attached is a resolution that contains findings of fact regarding MGM's liquor license application. The findings are based on the City Council's discussion of the materials provided to the Council and the testimony and response to questions it heard. The City Council also has the benefit of the minutes of the August 4, 2008, Council meeting which it just approved. The findings must be sufficient enough to support the City Council's decision to approve MGM's liquor license application. If Council members believe the proposed findings are not accurate, it would be appropriate to remove this item from the Consent Agenda for additional discussion. If findings set out in the resolution reflect the rationale the Council applied in reaching its decision to approve MGM's off-sale liquor license application, then the item can remain on the Consent Agenda. On August 12, 2008, the City Council members, City Attorney and City Manager received a letter from Bryce Huemoeller, counsel for Dakota Liquors, providing information regarding an informal traffic study Dakota Liquors prepared relating to potential traffic that would be generated by deliveries to MGM and additional comments on the liquor and tobacco violations at an MGM location. Mr. Huemoeller requested that his August 12, 2008, letter be made part of the record of decision on the MGM liquor license application. Public comment on the MGM liquor license application was closed when the City Council voted to close the public hearing on August 4, 2008. Mr. Huemoeller's office has indicated he will address the City Council during the August 18 forum on this topic. A copy of the August 12 letter is attached for information. www.c:ityofpriorlake.com Phone 952.447.9800 / Fax 952.447.4245 ISSUES: Adopting a resolution with findings of fact is a useful way to articulate and support the basis and rationale for the City Council's decision. The greater formality allows others to understand the reasons for the City Council's decision. The resolution is valuable in a court setting in that it creates a record to support the City Council's action. ALTERNATIVES: 1. Adopt the resolution as proposed. 2. Adopt the resolution with amendments. 3. Take no action and direct the staff to prepare additional information. RECOMMENDED As deemed appropriate by the City Council. MOTION: 4646 Dakota Street S.E. Prior Lake, MN 55372-1714 RESOLUTION OS-xxx A RESOLUTION ESTABLISHING FINDINGS AND APPROVING AN OFF-SALE LIQUOR LICENSE FOR MGM WINE AND SPIRITS FOR THE PERIOD OCTOBER 8, 2008 TO JUNE 30, 2009 Motion By: Second By: WHEREAS, MGM Wine and Spirits has submitted an application for an off-sale liquor license at 14173 Commerce Avenue along with required supporting materials and license fee in accordance with Minnesota Statute Chapter 340A and Prior Lake City Code 306; and WHEREAS, The Prior Lake Police Department has conducted a background investigation of the applicant including a review of City and State police records for the previous five-year period; and WHEREAS, On August 4, 2008, the City Council conducted a public hearing to receive testimony on whether to grant or deny the license application; and WHEREAS, Prior to the public hearing, the City Council received an oral presentation by the City Manager of the agenda report prepared in connection with MGM's off-sale liquor license application; and WHEREAS, Following the presentation of the agenda report and testimony received as part of the public hearing, the Council engaged in extensive discussion among themselves on whether to approve or deny MGM's off-sale liquor license application; and WHEREAS, The City Council meeting minutes are the official record of the City and the meeting minutes, as approved by the City Council on August 18, 2008, along with the agenda report presented by the City Manager at the August 4, 2008, City Council meeting are incorporated herein as if set forth in their totality at this point; and WHEREAS, The City Council voted to direct staff to prepare a resolution with findings of fact approving MGM's off-sale liquor license application. NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: 1. The recitals set forth above are incorporated herein. 2. The City Council makes the following findings: a. The applicant meets all statutory and ordinance criteria for licensure. MGM presently has interest in over forty Minnesota stores, ten of which are corporate. There are no criminal convictions on record for the applicant for the last five years. There is one civil liquor penalty and one tobacco penalty are of record, neither of which are in Prior Lake. www.cityofpriorlake.com Phone 952.447.9800 / Fax 952.447.4245 b. There are no convictions on file with the Minnesota Department of Public Safety, Department of Alcohol and Gambling Enforcement, which, in their opinion, would preclude the granting of a license to the applicant. c. MGM trains all staff and employees using, "Techniques of Alcohol Management," to prevent underage access to alcohol and to assist clerks to recognize and reject false identification. Incentives are offered. d. Prior Lake City Code provides that no liquor license may be issued to a facility to be located within 300 feet of a church or school. MGM will be located in a building that is within 145 feet of Kids Count Day Care and Learning Center, Inc. e. The City has never considered daycare centers as schools for purposes of making decisions on liquor license applications. Examples of daycares within 300 feet of a facility licensed for liquor are: . Little Laker Montessori - O'Malley's Tavern . Little Laker Montessori - Sui Lago Restaurant · New Horizon Day Care - Holiday Gas f. The City Council finds that the only reason to ignore its past practice and support interpreting schools broadly to encompass daycare centers would be to have a basis to deny MGM's liquor license application. g. Schools are regulated by the Minnesota Department of Education. Kids Count does not have a license from the Minnesota Department of Education. h. Daycare centers are regulated and licensed by the Minnesota Department of Human Services. Kids Count has a license from the Minnesota Department of Human Services. i. Daycares are not schools. j. If the City Council interpreted schools to include daycarecenters existing liquor license locations would be nonconforming and such an interpretation could negatively impact available opportunities to lease space or locate businesses. k. There is no evidence indicating that the distance of less than 300 feet between Little Laker Montessori and O'Malley's Tavern and Little Laker Montessori and Sui Lago Restaurant has created a public health, welfare or safety concern. I. No evidence was presented at the public hearing of public health, welfare or safety issues that could arise if a MGM store opened and operated with 300 feet of Kids Count. m. New Horizon Day care (then located in the same building as Kids Count) was located within 145 feet of PDQ which had an off-sale beer license. There are no incidents recorded in the police files suggesting that the proximity of an off-sale liquor licensee to a daycare center created a concern for the health, welfare or safety of the children, parents or employees at New Horizon. n. The roadway system in and around the Commerce/Boudin intersection and TH13 was constructed to support commercial development within the area MGM is opening. M:\COUNCIL\RESOLUTI\2008\081808 Findings MGM License resol.DOC o. Safe access and egress for customers and deliveries to MGM is provided by immediate access from south bound TH 13 and the signaled Commerce/Boudin intersection for northbound TH 13 traffic. p. The Police Chief states that the addition of one off-sale liquor store at the location MGM proposes to operate does not create an inordinate work load on the Police Department. q. A petition from 800 persons and businesses was received by the Council opposing the location of liquor stores within one-half mile of one another. The Council does not believe that it should approve or deny a license in order to protect an existing business from the economic threat of competition, which was the purpose of the petition. r. Only four individuals came forward to speak at the public hearing, one of which was the applicant. None of the testimony received provided evidence that, if granted, MGM or another off-sale liquor store would have an adverse effect on the public health, welfare or safety. s. The City Council concluded that it has the obligation to implement ordinances in a consistent manner until they are changed, and that the ordinance should not be changed when a petition is in progress. t. There was no evidence presented to show a correlation between the number of liquor establishments within a jurisdiction and alcohol usage or youth drinking problems. 3. Based on the record before the City Council which includes the agenda report, the public testimony, the discussion among the members of the City Council reflected in the official minutes of the August 4, 2008, Council meeting and the foregoing findings set forth in this resolution, the City Council approves an off-sale liquor license for the period of October 1, 2008 through June 30, 2009 for MGM Wine and Spirits at 14173 Commerce Avenue. PASSED AND ADOPTED THIS 18th DAY OF AUGUST 2008. YES NO Haugen Haugen Erickson Erickson Hedberg Hedberg LeMair LeMair Millar Millar Frank Boyles, City Manager M:\COUNCIL\RESOLUTI\2008\081808 Findings MGM License resol.DOC . . . HUEMOELLER, BATES & GONTAREK PLC ATTORNEYS AT LAW 16670 FRANKLIN TRAIL P.O. BOX 67 PRIOR LAKE, MINNESOTA 55372 (952) 447-2131 Fax: (952) 447-5628 E-mai1:hbg@prior1akelaw.com JAMES D. BATES DEAN G. GAVIN ALLISON J. GONTAREK BRYCE D. HUEMOELLER THERESA A. PETERSON August 12,2008 City Council Members City of Prior Lake 4646 Dakota Street Prior Lake, MN 55372 Re: City Council Meeting August 4, 2008 Opposition to MGM Liquor License Application Dear Council: This letter relates to the hearing held by the City Council on this Application, and we request that this letter be made a part of the record for the hearing. We believe that three issues merit further consideration by the Council. 1. Deliveries and Traffic. Since the hearing, Kevin Bresnahan has conducted a brief survey of the likely delivelY traffic that the MGM store will generate. The attached sheet indicates that the aggregate weekly delivery time will likely exceed 23 hours, will in some cases require two trucks per delivery, many of those with one or two semi-trucks, and will likely unload from the west (the side of the PDQ building adjacent to the Kids Count Daycare and Learning Center), often with street parking and occasional stacking (since the building does not currently have multiple, or possibly any, loading docks or ramps). The proposed MOM store will, contrmy to the testimony at the hearing, generate considerable large truck traffic, with multiple vehicles and semi-trucks, using street parking and stacking, mostly adjacent to the Kids Count Daycare and Learning Center. 2. A Civil Violation is sufficient to Disqualify MGM. City Council Members City of Prior Lake August 12, 2008 Page 2 . Prior Lake Ordinance S 301.600(2) does not require the conviction of a crime, only ofa "violation." The use of the word "convicted" in the ordinance, does not imply or mean a criminal conviction, rather it simply means "to find or prove to be guilty." This applies to both administrative (that is, "civil") and criminal proceedings. Consequently, the acknowledgment of a violation, by the payment of a "civil" fine, is a violation under the ordinance and, in and of itself, disqualifies MGM under S 301.600(2). 3. Prior to PDQ License is Not Precedent as Alleged by Mayor Haugen. At the hearing, the Staff Report (see Paragraph 2) and Mayor Haugen used the apparent failure of Kids Count Daycare and Learning Center to object to the PDQ liquor license as some evidence that at least at that point in time, Kids Count Daycare and Learning Center must have acknowledged that it was not a "school" within the meaning of Prior Lake Ordinance S 301.600(9). We have been told, however, by Heather McCaustlin that Kids Count Daycare and Learning Center was not even operating at its existing location during the term of the PDQ liquor license; and that if PDQ had been in business and applied for a license to sell 3.2 beer while Kids Count Daycare and Learning Center . was at its present location, it would have objected to such a license for the same reasons (proximity to a school, prior alcohol violations and traffic) now being discussed with respect to the MGM application. Your consideration of the information in this letter is appreciated, and we respectfully request that the City Council not adopt the final resolution and findings to approve the MGM off-sale liquor application. Si~ Bryce D. Huemoeller BDH:ab Enclosures cc: Kevin Bresnahan Jim Bresnahan Frank Boyles Suesan Pace . i i " I! i ") '---;-1 II. \ .' ~ ) t~ ~ Iii , \) .e\ Ll....JJ '::> _ C L t "I "o~ <;.t.,,, 0 . II c c'5 . -'-=;:--~--+~~~'-\oL ---@:\~,;T'-'~C:-~'~---~-;~~l:CI~'~'a;I~i "-. .~..~~--_..- -..-"~~."j-~.l'~~-'--~, ~~~---~:-r---;~~-"--~. . ;'=fi- tC['-~Jd~~ w_~____L_*trc--_.~_._::L__-___-_... ~- -~_.~~~~~~ -._-- -itM ~_. '.' . ....~...~r;~~J _._.+~._-_. 5~: ~:~ _~e&S _~1,,,,(l ~,~~~ i.tf~-~-_.,L~ilZt~~, ~=-~'=-_.~-=~~._,=-~~:.~~_.~---------~ i~1 ~<<+~~;-~~~)=~~~~_.~.~~.- ...-~ -~--. .. .... .~ ,,~,~"-~' . . '. 7- '. . . ... .------~~~.------~--...~-.~~~~=_,~__._-. _____.",,___,' .~.~~~ L j. + >Q~_~_~.\ ~ ~ _~_..~L~lL .~___~~~__. . . I l.0.1:>lLd Cl.1\-72_W r ?VZ .~~_~ __ h~ ... "~'" ........., 1 II \)(~O €celA- 0.:> )~ I/L. k --,q--=-~~l ~. fv\\~<--.~-=-- .-~~.~~-..._-=.-=.-~ i + \-\0 lo..:s-\- <2., ;-> :, .':B~ (Iz.: h. e.. . '-=-I.~ k+{~~ 3 -~:....L=J~.fC.~.=~:~~_= -------! t ,--~~" L~~ _.--~eD~.t~,_..-"~-.~-~.-~J6..&.:.~h~..---..-~~~.~---.-,-,=,=----~=. _~.~_~ . u.__~~"'.___"m.~ifI, l~:~ Co_ . ..--~.~~~~~JL'?~~~_-~~-____._,_...-___., )- i U' ~ l~-."tL' -- 'h, - -,.---,----.,---~.=" ~-r~~ ... ... . .... .... ...... '., ...k.~.....~~'"==-~.~~.,.='~-.,- I I. {pbCtlO.. C A?"::> ~./ sJz f2- h..fL ~--.=j.~ ~~-==-~ ~fi \eLP~z"~Z~-.&&ik:-- ~ ~. .... i "~'I.' .~... ._~\\~-. .' ..~. '. -()(P~' "> ......'.. d_.".~~,... ..-.-...... .'. .1+~1i~,,;]~~. :..~[lJo,~:1~~~-~-~~.-D...u~-'k~.'.....'.l. ~~.' '-.' ----T-1t--..- '\) I 0, ;:.-- Lo, ~ -_....:.../-._._._M._J11:_.1Lk.~J -.----.-....,.-.---~-...-.~-----,.~'".-~------'--..-.-~-------....-----.-~---.-,...-. -------- . . -A-----.~ fWv. . . ..- ..... h' ...' .----h~---__"-.,.,.""--.....\l7CC'yJ ....'. _'''_.''~'_ ~-__,.__...., 301.600: qj'2-~ '\13 ~ 301.700: 301.800: Busin~ss Regulations (. investigation show that issuance would not be in the public interest. (1) (2) DENIALS: The following shall be grounds for denying the issuance, transfer, or renewal of a license under this Section. The following list is not exhaustive or exclusive: The applicant is under the age of twenty-one (21) years. The applicant has been ~onvicted wIThin the past five (5) years of a violatiol1 of any provision of this Section or a violation of a Federal, State, or local law, Ordinance provision, or other regulation relating to alcohol or related products. The applicant or license holder has had a license to sell alcohol revoked within the preceding five (5) year of the date of application. The applicant fails to provide any information required on the City license application, or provides false or misleading information. The applicant or license holder has outstanding fines, penalties or property taxes owed to the City. . The applicant is directly or indirectly the owner of any current license issued under this Section. The place of the licensed business is ineligible for a license under state law or the City Code. (Minn. Stat. ~340A.412 or 340A.301). Taxes, assessments, fines or other financial claims of the City are delinquent and unpaid as to the premises to be licensed. The premises to be licensed is located within 300 feet of any church or school. It is impractical to conduct a background and financial investigations due to the unavailability of information. The applicant is not of good moral character and repute. . (3) (4) (5) (6) [7) (8) (9) (10) (11) Exception. No license shall be granted for operation on any premises on which state, city or county taxes, assessments, fines or other financial claims of the state, city or county are delinquent and unpaid. Notwithstanding the foregoing, if the delinquent taxes, assessments, fines or financial claims are against a landowner, and the applicant or license holder in the case of a renewal, is a tenant of landowner and has no financial interest in landowner, then the City Council may, in its discretion, but shall not be required to, grant a license to an applicant so long as the applicant is not delinquent on any taxes, assessments, fines or financial claims as set forth herein. RENEWALS: The renewal of a license under this subsection shall be handled in the same manner as the original application. Any person intending to apply to renew a liquor license must submit a renewal application, on a form provided by the City, and pay the application and license fee. A license renewal application, and license fee must be submitted to the City no later than forty-five (45) days prior to the expiration of the license. The issuance of a license under this ordinance shall be considerE;!d a privilege and not an absolute right of the applicant and shall not entitle the holder to an automatic renewal of the license. A late fee of Fifty dollars ($50.00) will be imposed on any licensee who fails to submit a timely renewal application. TERM: All licenses are issued for a period of one (1) year. The license period is from July 1 to June 30. . City of Prior Lake 301/p8