HomeMy WebLinkAbout8A - Public Hearing Narayan Gas and Groceries
MEETING DATE:
AGENDA #:
PREPARED BY:
AGENDA ITEM:
DISCUSSION:
CITY COUNCIL AGENDA REPORT
March 16, 2009 cj)
8A
Frank Boyles, City Manage
Bill O'Rourke, Police Chief
PUBLIC HEARING REGARDING APPEAL REQUEST BY BK SHAH ON
BEHALF OF NARAYAN GAS AND GROCERIES.
Introduction
The purpose of this agenda item is for the City Council to conduct a public
hearing to consider whether it wishes to modify the civil penalty proposed by the
Police Chief and City Manager for a second tobacco sale violation in 36 months.
Historv
Prior Lake City Code Section 308 regulates the sale of tobacco in Prior Lake. In
addition to providing for conditions and process for licensure, the Code sets forth
criminal and civil penalties for those who violate the ordinance provisions.
During a tobacco compliance check conducted by the Prior Lake Police
Department on November 13, 2006, an employee of Narayan Gas and Groceries
sold tobacco to a person below the age of 18. The clerk pled guilty to that
offense on February 2,2007, and received a criminal fine of $300.00. The
ordinance also provides for a civil penalty to the business. In the case of a first
violation in 36 months, the civil penalty is between $150 and $500 with no
suspension. Narayan Gas and Grocery was fined $150 for the first violation.
A second violation occurred on December 18, 2008, during another tobacco
compliance check by the Prior Lake Police Department. Mr. Curtis Rank, an
employee of Narayan Gas and Grocery, sold tobacco to an individual who was
less than 18 years old. He pled guilty and was fined $300 by the courts on
February 20, 2009. Mr. Rank was not the same employee involved in the first
illegal sale.
Upon receipt of the most recent conviction confirmation, I sent a letter to the
owner of Narayan Gas and Groceries, BK Shah, advising him of the City's intent
to fine the company $700 (the amount set forth in the Code for a second
violation) and suspend its tobacco license for seven days. (The ordinance
provides that this suspension may be a minimum of seven and maximum of 20
days.)
On March 5, 2009 (within ten days receipt of our notice), Mr. Shah sent the
attached letter appealing the fine and suspension.
Current Circumstances
I advised Mr. Shah of the provisions of the ordinance including the fact that staff
cannot reduce the fines or suspensions outside the parameters set forth in the
www.cityofpriorlake.com
Phone 952.447.9800 / Fax 952.447.4245
ordinance. I advised that a hearing could be scheduled for the March 16
meeting. Mr. Shah agreed.
ISSUES:
Under Section 308.801 (attached), the City Council should conduct the hearing
and determine if there is a basis for adjusting the fine or suspension which is
unique to this incident.
The fact that an illegal sale took place is a given. The Council may wish to
consider that identification was requested and that the clerk apparently
miscalculated the customer's age. On the other hand, the Council could ask
about the adequacy of the training or the tools provided to the clerk to calculate
age.
If the Council believes there is a basis for adjusting the fine and/or suspension
called for in the ordinance, the following options could be considered:
. Reduce the fine amount.
. Reduce the suspension term.
. Suspend both the fine and suspension in whole or in part subject to the store
owner purchasing and installing within 30 days an electronic identification
card reader that calculates the age of the purchaser automatically.
In making its decision, the Council should be aware that it is creating a
procedure which could impact how civil violations will be administered in the
future. A second consideration is that the ordinance is predicated on the concept
of progressive penalties so the penalty for the second instance should be greater
than the first.
FINANCIAL
IMPACT:
City costs associated with this case have already been incurred so the only likely
impact is enforcement.
ALTERNATIVES:
1. Affirm the $700 fine and seven-day suspension.
2. Modify the fine.
3. Modify the suspension.
4. Stay the recommended fine and suspension subject to the store owner
purchase, installation and use of an electronic identification reader within the
next 30 days.
RECOMMENDED As determined by the Council.
MOTION:
Date: 3/5/09
To,
Attn: Mr. Frank Boyles
City Manager
City of Prior Lake
4646 Dakota Street SE
Prior Lake, MN 55372-1714
Subject:
Sale of Tobacco to a Minor by our employee on Dec 18t\ 2008
Dear Mr. Boyles,
We have received a letter/ notice from you few days ago regarding civil violation of
Section 308.703 ofthe Code of Ordinances for the City of Prior Lake.
We would like to request you to take it little easy approach on us being our business is
not doing so well in this economy. To pay $700 as fme and 7 days of suspension of
Tobacco license, it will be very hard on us.
Curtis Rank. (our employee) has asked for driver license ID to that customer, but he didn't
read it properly in details. He felt very bad about it and had tears in his eyes. This has
happened ftrst time in his 20 years career.
We understand that rules regulations are made to follow to run the better community. We
reallv are doin2: humble reQuest to reduce some fme char2:es and waive this 7 davs
susoension. We assured vou that it won't haooen a2:ain.
Please forgive us and allow surviving in this poor economy.
If possible, I would like to talk with you personally to discuss this matter. My cell phone
number is 952-250-5594.
Regards,
nJs<A
IO~ ", "
BK Shah
Narayan Gas and Groceries
16176 SE Main Ave
Prior Lake, MN 55372
CC - Mr. Bill O'Rourke
SUBSECTIONS:
308.100:
308.200:
308.300:
308.400:
308.500:
308.600:
308.700:
308.800:
308.900:
308.1000 :
308.100:
308.200:
Business Regulations
SECTION 308
TOBACCO
PURPOSE
DEFINITIONS
LICENSE REQUIRED
LICENSE FEE
PROHIBITED SALES
MOBILE SALES
VIOLATIONS AND PENALTIES
HEARING ON DENIAL OR VIOLATION
AFFIRMATIVE DEFENSE
SEVERABILITY
PURPOSE: The City Council finds that substantial scientific evidence exists that the use
of tobacco-related products causes cancer, heart disease, and various other medical
disorders. It is further finding of the City Council that the present legislative scheme of
prohibiting sales of tobacco-related products to persons under the age of eighteen (18)
has proven ineffective in preventing such persons from using tobacco-related products.
The City Council has concluded that minors have ready access to self-service
merchandising, including vending machines, which sell tobacco-related products. The
City Council has also concluded that the prohibition of the sale or dispensing of tobacco-
related products through vending machines and the regulation of sales through self-
service merchandising will thereby promote the health, safety and welfare of the residents
of the City, particularly those residents under eighteen (18) years of age.
DEFINITIONS: The following words and terms when used in this Section shall have the
following meanings unless the context clearly indicates otherwise:
Adult A person 18 years of age or older;
Applicant A person as defined herein, who completes or signs an application for a
license to sell tobacco-related products individually or on behalf of a business.
Business: The business of selling tobacco-related products;
License Holder. The owner of the business licensed to sell tobacco-related products.
Movable place of business: A business whose physical location is not permanent or is
capable of being moved or changed.
Person: One (1) or more natural persons, a partnership, including a limited partnership, a
corporation, including a foreign, domestic, or nonprofit corporation, a trust, a political
subdivision of the State, or any other business organization.
City of Prior Lake
30B/p 1
308.300:
308.301
308.302
308.303
308.304
Business Regulations
Self-service Merchandising: A method of displaying tobacco-related products so that
they are accessible to ten public without the intervention of an applicant, license holder or
their agents or employees.
Tobacco-related products: Cigarettes, cigars, cheroots, stogies, perique, granulated,
plug cut, crimped cut, ready, rubbed and other smoking tobacco; snuff, snuff flower,
cavendish, plug and twist tobacco, fine cut and other chewing tobaccos, shorts, refuse
scripts, clippings, cuttings, and sweepings of tobacco, and other kinds and forms of
tobacco prepared in such manner as to be suitable for chewing, sniffing, or smoking in a
pipe; rolling paper or other tobacco-related devices.
Vending Machine: Any mechanical, electric or electronic, self-service device which,
upon insertion of money, tokens or any other form of payment, dispenses tobacco
products and including vending machines equipped with manual, electric or electronic
locking devices.
LICENSE REQUIRED. No person shall keep for retail sale, sell at retail or otherwise
dispense any tobacco-related product at any place in the City without first obtaining a
license and paying a license fee.
ADDlication. An application for a license to sell tobacco, tobacco products, or tobacco-
related devices shall be made on a form provided by the City. The application shall
include, but is not limited to requiring the full name of the applicant, the applicant's
residential and business address and telephone numbers, the name of the proposed
license holder, the business location for which the license is sought, and a copy of the
educational materials the applicant intends to use to educate employees. The completed
application along with the application fee shall be submitted to the City Manager or his
designee for approval. If the City Manager determines that an application is incomplete,
he or she shall return ten application to the applicant with notice of the deficiencies.
Action. The City Manager may either approve or deny the license, or may delay action
for such reasonable period of time to permit the City to complete any investigation of the
application or the applicant deemed necessary. If the Manager approves the license, a
license shall be issued to the applicant. If the Manager denies ten application, a notice of
denial shall be sent to ten applicant at ten business address provided on the application
along with the reasons for the denial. The notice shall also inform the applicant of their
right to appeal the Manager's decision to the Council pursuant to the process set forth in
subsection 308.800. If a license is mistakenly issued or renewed to an applicant or
license holder, it shall be revoked by the City Manager upon the discovery that the
person, applicant or license holder was ineligible for the license under this Section.
Term. All licenses are issued for a period of one (1) year. The license period is from
January 1 to December 31.
Revocation or SusDension. Any license issued under this Section may be revoked or
suspended as provided in the Violations and Penalties subsection of this Section pursuant
to the process set forth in subsection 308.800.
City of Prior Lake
308/p2
Business Regulations
308.305 Transfers. All licenses issued under this Section shall be valid only on the business
premises for which the license was issued and only for the person to whom the license
was issued. No transfer of any license to another location or person shall be valid without
the prior approval of the City Manager.
308.306 DisDla'{. Every license shall be conspicuously posted at the place of business for which
the license is issued and shall be exhibited to any person upon request.
308.307 License Renewals. Any person intending to renew a cigarette license must submit a
renewal application, on a form provided by 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 renewal of a license under
this Chapter shall be handled in the same manner as the original application. The request
for renewal shall be made at least thirty (30) days but no more than sixty (60) days before
the expiration of the current license. The issuance of a license under this Chapter shall
be considered a privilege and not an absolute right of the applicant and shall not entitle
the holder to an automatic renewal of the license. (Ord. 97-2, 1-6-97)
308.308 Late Fee. A late fee of Fifty Dollars ($50.00) will be imposed on any licensee who fails to
submit a timely renewal application.
308.309 Instructional Proaram. No person shall be issued a license or renewal license to sell
tobacco-related products unless an applicant or license holder has an approved program
for instructing all employees at the business premises for which the license was issued, in
the legal requirements pertaining to the sale of tobacco-related products, including, but
not limited to, reviewing the law on the sale of tobacco-related products, providing
information on the health risks of using tobacco-related products, and requiring
employees to request identification from every customer who appears to be under 27
years of age. No license shall be issued unless the applicant or license holder signs a
City form attesting that each employee of the applicant or license holder has received
training and instruction on the sale of tobacco-related products and the date such training
occurred. The training shall include information that the sale of tobacco-related products
to minors is illegal, explains what proof of age is legally acceptable, and that a sale to a
minor can subject the applicant or license holder and their employees to criminal and/or
civil liability.
308.310 Denials. The following shall be grounds for denying the issuance or renewal of a license
under this Section. The following list is not exhaustive or exclusive:
(1) The applicant is under the age of 18 years.
(2) The applicant has been convicted within the past five years of a violation of any provision
of this Section or a violation of a Federal, State, or local law, ordinance provision, or other
regulation relating to tobacco or tobacco products, or related tobacco devices.
(3) The applicant or license holder has had a license to sell tobacco, tobacco products or
tobacco-related devices revoked within the preceding twelve (12) months of the date of
application.
City of Prior Lake
308/p3
Business Regulations
(4) The applicant fails to provide any information required on the City license application, or
provides false or misleading information.
(5) The applicant or license holder has outstanding fines, penalties or property taxes owed to
the City.
308.400: LICENSE FEE: The application fee shall be determined by the City Council and shall be
paid at the time of application. License fees are not pro-rated.
308.500: PROHIBITED SALES: No person shall sell, offer for sale, give away, furnish or otherwise
deliver any tobacco, tobacco product, or tobacco-related device:
(1) To any person under the age of eighteen (18);
(2) By means of any type of vending machine;
(3) By means of self-service merchandising or any means whereby the customer may have
access to such items without having to request the item from the license holder, their
agents or employees. All tobacco related products shall be stored behind a counter or
other area not freely accessible to customers.
(4) By any other means, or to any other person, prohibited by Federal, State or other local
law, ordinance provision, or other regulation.
308.501 ExceDtion. A license holder who operates an establishment that sells only tobacco-
related products is exempt from the self-service merchandising provision if the license
holder prohibits anyone under eighteen (18) year of age from entering the establishment,
unless accompanied by a parent, and the license holder conspicuously displays a notice
prohibiting persons under eighteen (18) years of age from entering the establishment
unless accompanied by a parent.
308.600: MOBilE SALES: No license shall be issued for the sale of tobacco-related products at a
movable place of business, including but not limited to motorized vehicles, mobile sales
kiosks, or trailers.
308.700: VIOLATIONS AND PENALTIES.
308.701 Revocation or SusDension. Any violation of this Section shall be grounds to revoke or
suspend a license.
308.702 Criminal Penaltv. As set forth in Minnesota Statues Chapter 609:
(1) It shall be a gross misdemeanor for anyone to sell tobacco-related products to a person
under the age of eighteen (18) years.
City of Prior Lake
308/p4
308.703
j (1)
Business Regulations
(2)
It shall be a misdemeanor to furnish tobacco-related products to a person under the age
of eighteen (18) years.
(3)
It shall be a petty misdemeanor for anyone under the age of eighteen (18) years to use,
purchase, attempt to purchase, or possess tobacco-related products. This Section shall
not apply to a person under the age of eighteen (18) years who purchases or attempts to
purchase tobacco-related products while under the direct supervision of a responsible
adult for training, education, research, or enforcement purposes.
(4)
It shall be a petty misdemeanor for anyone under the age of eighteen (18) years to sell,
furnish, or give away any tobacco-related products. This Section shall not apply to an
employee of ten license holder under the age of eighteen (18) years while stocking
tobacco-related products.
(5)
Upon discovery of a suspected violation, the City Police shall issue a criminal citation to
the individual who made the prohibited sale and, where appropriate, to the minor who
purchased the tobacco as set forth in the previous paragraphs of this subsection.
Civil Enforcement. The license holder shall be responsible for the conduct of its agents
or employees while on the licensed premises. Any violation of this Section shall be
considered an act of the license holder for purposes of imposing a civil penalty, license
suspension, or revocation. Each violation, and every day in which a violation occurs or
continues, shall constitute a separate offense.
Notice of Violation. Upon the occurrence of a suspected violation, the Police
Department shall inform the City Manager of the suspected violation. The City Manager
shall then send to the license holder a written notice of the civil violation. The notice shall
advise the license holder of the penalty and the license holder's right to request a hearing
regarding the violation of this ordinance pursuant to subsection 308.800.
(2)
Civil Penalties. Each license issued hereunder shall be subject to suspension or
revocation for violation of any provisions of this Section or the laws of the State of
Minnesota as follows:
a. First Violation. The first violation of this Section shall be punishable by a civil
penalty of at least $150 but no more than $500.
b. Second Violation. A second violation of this Section within any 36-month period
shall be punishable by a civil penalty of $700 and a suspension of the license of at least
seven days but not more than twenty days.
c. Subseauent Violation. A third or subsequent violation of this Section within any
36-month period shall be punishable by the revocation of the license. Any licensee
whose license is revoked under this Section shall not be eligible for renewal for a period of
two license years after the revocation.
(3) Any civil penalty, suspension or revocation or combination thereof under this Section does
not preclude criminal prosecution under this ordinance or Minnesota Statute Section 609-
685.
City of Prior Lake
308/p5
;'308.800:
Vi 308.801
J' 308.802
308.900:
308.1000:
Business Regulations
HEARING ON DENIAL OR VIOLATION. Following receipt of a notice of denial issued
under subsection 308.300 or a notice of a violation and penalty issued under subsection
308.700, an applicant or license holder may request a hearing before the City Council. A
request for a hearing shall be made by the applicant or license holder in writing and filed
with the City Manager within ten (10) days of the mailing of the notice of denial or alleged
violation. Following receipt of a written request for hearing, the applicant or license holder
shall be afforded an opportunity for a hearing before the Council within thirty days of such
written request. If a committee of the Council conducts the hearing it shall report its
findings and make a recommendation to the full Council.
(Ord Amd 107-12, publ 072107)
Findinas. If after the hearing the applicant or license holder is found ineligible for a
license, or in violation of this Ordinance, the Council may affirm the denial, impose a fine,
issue a suspension or revocation, or impose any combination thereof as set forth in
subsection 308.700.
Default. If the applicant or license holder has been provided written notice of the denial
or violation and if no request for a hearing is filed within the 10-day period, then the denial,
penalty, suspension or revocation imposed in subsection 308.700 shall take immediate
effect by default. The City Manager shall mail notice of the denial, fine, suspension or
revocation to the applicant or license holder. The City Police shall investigate compliance
with the suspension or revocation.
AFFIRMATIVE DEFENSE. It is an affirmative defense to a charge under this Section if
the license holder proves by a preponderance of the evidence that the license holder
reasonably and in good faith relied on proof of age as described in Chapter 340A.503,
subd. 6 of the Minnesota Statutes, in making the sale.
SEVERABILITY. If any provision of this Section is for any reason held to be invalid, such
decision shall not affect the validity of the remaining provisions of this Section.
(This Space Intentionally Blank
For Future Amendments)
City of Prior Lake
308/p6