HomeMy WebLinkAbout5G - Narayan Gas and Groceries Tobacco License
MEETING DATE:
AGENDA #:
PREPARED BY:
PRESENTER:
AGENDA ITEM:
DISCUSSION:
ISSUES:
4646 Dakota Street SE
Prior Lake, MN 55372
CITY COUNCIL AGENDA REPORT
June 21, 2010
5G
Frank Boyles, City Manager
Frank Boyles, City Manager
Consider Approval of a Resolution Establishing Findings of Fact to
Support Revocation of the Tobacco License Issued to B, K. Shah dba
Narayan Gas and Grocery
Introduction
The purpose of this item is to establish findings of fact to support the City
Council's decision to revoke the tobacco license of Narayan Gas and
Groceries
Historv
Narayan Gas and Groceries has experienced three illegal tobacco sales to
minors over a 36-month period. Both criminal and civil fines have been
administered. The City Code is mandatory regarding revocation of the
tobacco license for a period of two years for the third ordinance violation in
36 months.
Procedure
The Citv Council does not consider imoosina a oenaltv on a tobacco
licensee until the criminal asoect of the violation is adiudicated and the
individual found auiltv (or not) in the criminal oroceedina. Mr. Shah's
emolovee was found auiltv.
Current Circumstances
The City Council conducted a hearing as requested by B.K. Shah, the
owner of Narayan Gas and Grocery. No new information was submitted on
the record. After hearing all persons who wished to be heard, the Council
directed that the staff prepare a resolution with findings of fact to support its
decision to revoke the tobacco license for Narayan Gas and Grocery for
two years, and place the item on the Consent Agenda.
Conclusion
The City Council should consider this item as part of the Consent Agenda.
As directed, a draft resolution with findings of fact affirming the Council's
action pursuant to ordinance requirements to revoke the tobacco license at
Narayan Gas and Grocery has been prepared. The effective date of the
revocation would be immediate. Mr. Shah has requested that the City give
him time to sell down his inventory. He initially asked for the revocation to
be effective August 1, then July 25, then July 15. I have advised him that
the resolution will propose June 30, which I believe is generous. If the
Council desires a different date, the resolution should be amended.
R\CoLlncil\2010 Agenda Reports\06 2110\Narayan Tobacco Revocation Agenda.doc
FINANCIAL
IMPACT:
Minimal since no more tobacco compliance checks will be necessary at this
establishment.
ALTERNATIVES:
Adopt the attached resolution as part of the Consent Agenda.
Remove the resolution from the Consent Agenda for additional discussion.
RECOMMENDED Alternative #1.
MOTION:
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4646 Dakota Street SE
Prior Lake, MN 55372
RESOLUTION 10-xxx
A RESOLUTION ESTABLISHING FINDINGS OF FACT SUPPORTING REVOCATION OF THE
TOBACCO LICENSE ISSUED TO B.K. SHAH DBA NARAYAN GAS AND GROCERIES
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS
WHEREAS
WHEREAS
WHEREAS
WHEREAS
WHEREAS
WHEREAS
WHEREAS
Motion By:
Second By:
Prior Lake City Code Section 308 regulates the issuance, suspension and revocation of
tobacco licenses through a combination of criminal and civil penalties; and
Narayan Gas and Groceries has had a tobacco license issued by the City of Prior Lake at
least since 2006; and
From 2006 to 2009, three different clerks at Narayan Gas and Groceries have sold
tobacco to minors; and
All three clerks have been convicted of illegally selling tobacco to minors and have paid
fines for such action; and
Prior Lake City Code 308 also provides for civil penalties against the owners of
establishments where tobacco was sold to a minor; and
For the first illegal sale on November 13, 2006, Narayan Gas and Groceries was fined
$150; and
For the second illegal sale on December 18, 2008, Narayan Gas and Groceries was to be
fined $700 and the license was to be suspended for seven days; and
Mr. Shah, owner of Narayan Gas and Groceries, requested and was provided a hearing
before the City Council to appeal the penalty saying that the suspension would be
onerous and overly harsh; and
After the hearing, in an effort to prevent sales to minors caused by a clerk inaccurately
calculating the age of a customer, the City Council modified the penalty to be a $700 fine
and suspension of the license for seven days; the license suspension would be stayed if
Narayan Gas and Groceries purchased and used an identification card reader that reads
the age of a person based on their license; and
Narayan Gas and Groceries did purchase an identification card reader to check birth
dates on identification cards for tobacco sale purposes, and the suspension was therefore
stayed; and
On October 27,2009, a clerk at Narayan Gas and Groceries sold tobacco to a minor
whom he had carded but miscalculated the correct age himself; and
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The clerk was convicted for this illegal sale; and
WHEREAS
WHEREAS
WHEREAS
Mr. Shah was notified by letter from the City Manager that pursuant to Prior Lake City
Code Chapter 308, the third violation within 36 months is punishable by revocation of the
license for two years and that he had the right to appeal the City Manager's determination
to the City Council; and
Mr. Shah appeared at a City Council meeting on June 7,2010, to testify on his own behalf
with respect to the violation of the ordinance and the penalty provided by City Code; and
Mr. Shah stated that after the third violation he had purchased a "Ruby" identification card
system, installed Web cameras to monitor his employees and provided training regarding
tobacco sales; and
After consideration of the language of the City Code, the record of repeated violations, the
letters, em ails and in-person testimony of the owner and the input of the Police Chief, City
Attorney and City Manager, the City Council directed the preparation of a resolution with
findings of fact supporting the revocation of the tobacco license for two license-years for
consideration as part of the June 21, 2010 Consent Agenda.
NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE,
MINNESOTA as follows:
WHEREAS,
1. The recitals set forth above are incorporated herein.
Findings of Fact
2. Having heard testimony from the store owner and considering the record, staff report and provisions of
the Prior Lake City Code, the City Council makes the following findings:
a. Narayan Gas and Groceries has possessed a tobacco license since 2006.
b. While in possession of the tobacco license, store clerks have been guilty of illegal sales to minors
on three separate occasions during a 36-month period.
c. Narayan Gas and Groceries, in addition to the criminal penalties the court imposed on the clerks,
has also been assessed civil penalties in an effort to change this pattern of behavior.
d. In addition to cash penalties of $150 and $700 for illegal sales to minors, Narayan Gas and
Groceries received a stayed seven-day suspension provided that an identification card reader was
purchased, installed and used.
e. The third violation in 36 months occurred because the clerk failed to use the identification card
reader and miscalculated the age.
f. Mr. B.K. Shah, owner of Narayan Gas and Groceries, testified that he was aware of problems with
the first card reader, explained them in detail, but did not replace the undependable card reader
until after the third violation.
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g. The City Council was lenient after the second violation because they believed encouraging the
owner to buy and use a card reader was a better way of preventing illegal sales than issuing a
suspension.
h. At the time of the hearing on the second civil penalty, the minutes of the March 16, 2009, meeting
reflect that Mr. Shah was warned by the City Council at that time that the third violation will result in
revocation. The minutes of the March 16, 2009 appeal are incorporated herein as if fully set forth.
I. The Prior Lake City Code provides at 308.703 (2) c, "subsequent 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 revocation."
J. Minnesota Statutes Section 645 Subdivision 16, principles of construction, indicates that if used in
a law the word "shall" is mandatory and, therefore, the City Council has no latitude to modify the
civil penalty for this third violation.
k. The owner had three years to correct a pattern of behavior of the clerks and of the owner which
resulted in three illegal tobacco sales.
3. Based upon its findings of fact listed above, the City Council determines that the public health, safety
and welfare of the community have been and potentially will be affected if the tobacco license for
Narayan Gas and Groceries is not revoked pursuant to Prior Lake City Code.
4. The City Council hereby adopts this resolution revoking the tobacco license for Narayan Gas and
Groceries for a period of two license-years beginning on June 30, 2010, through December 31, 2012.
PASSED AND ADOPTED THIS 21st DAY OF JUNE 2010.
YES
NO
Myser
Erickson
I Hedber!j
I Keeney
I Millar
Myser
Erickson
Hedber!j
Keeney
Millar
Frank Boyles, City Manager
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