HomeMy WebLinkAbout10-056 Narayan Gas Tobacco License Revocation
4646 Dakota Street SE
Prior Lake, MN 55372
RESOLUTION 10-056
A RESOLUTION ESTABLISHING FINDINGS OF FACT SUPPORTING REVOCATION OF THE
TOBACCO LICENSE ISSUED TO B.K. SHAH DBA NARAYAN GAS AND GROCERIES
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Motion By:
Second By: Keeney
Erickson
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 selling tobacco; 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, appeared before the City Council to
appeal the penalty saying that the suspension would be onerous and overly harsh; and
In an effort to prevent sales to minors, the City Council following an appeal hearing
modified the penalty to be a $700 fine and suspension of the license for seven days which
would be stayed if Narayan Gas and Groceries purchased and used an identification card
reader; 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
The clerk was convicted for this illegal sale; and
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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, emails 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
three times within a 36-month period.
c. Narayan Gas and Groceries, in addition to the criminal penalties to 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.
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.
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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.
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 654 principles of construction indicate that "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.
Myser x Myser
Erickson x Erickson
Hedbera Hedbera x
Keenev x Keeney
Millar Millar x
YES NO
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