The URL can be used to link to this page

Home My WebLink About10B Presumptive Penalties re Liquor Sales O� PRIp+P ti 4646 Dakota Street SE Prior Lake. MN 55372 CITY COUNCIL AGENDA REPORT MEETING DATE: February 10, 2014 AGENDA #: 10B PREPARED BY: Bill O'Rourke PRESENTED BY: Bill O'Rourke AGENDA ITEM: CONSIDER APPROVAL OF A REPORT WITH RESPECT TO PRE- SUMPTIVE PENALTIES FOR LIQUOR SALES TO MINORS DISCUSSION: Introduction This agenda report is in response to the Council's directive to survey other cities presumptive penalties for violations of their alcohol poli- cies. History After MGM Liquors failed a compliance check conducted by the Po- lice Department, the owner contacted Council members and ex- pressed a concern that Prior Lake's presumptive penalties were not business friendly. The council directed that the staff survey various cities to ascertain their first and second offense presumptive penal- ties for the sale of alcohol to a minor. Current Circumstances The two tables below show the results of the survey for first and sec- ond violations of sale of alcoholic beverages to underage persons. FIRST VIOLATION CITY PRESUMPTIVE PENALTY PRIOR LAKE 3 DAY SUSPENSION (WORK WITH THEM TO PICK DATES) SAVAGE $500 FINE IF BEST PRACTICES BUSINESS* $1000 FINE AND MANDATORY TRAINING IF NOT BEST PRACTICES SHAKOPEE $1000 FINE AND ONE DAY SUSPENSION ($500 AND ONE DAY SUSPENSION SUS- PENDED FOR ONE YR IF NO SIMILAR VIO- LATION IN YR. BURNSVILLE $500 FINE IF BEST PRACTICES BUSINESS $1000 FINE AND 3 DAY SUSPENSION IF NOT BEST PRACTICES BLOOMINGTON COUNCIL MAY REVOKE, SUSPEND UP TO 60 DAYS, IMPOSE UP TO $2000 FINE FOR ANY LICENSE VIOLATION EDEN PRAIRIE $500 FINE EDINA $500 FINE LAKEVILLE $500 FINE IF BEST PRACTICES BUSINESS $1000 FINE IF NOT BEST PRACTICES BUSINESS FARMINGTON $250 FINE AND 3 DAY SUSPENSION APPLE VALLEY $500 FINE CHANHASSEN 3 DAY CONSECUTIVE SUSPENSION CHASKA TAKES NO CIVIL ACTION UNLESS A WELL DOCUMENTED `PROBLEM BUSINESS' ELKO -NEW 3 DAY CONSECTUTIVE SUSPENSION MARKET JORDAN COUNCIL SHALL REVOKE OR SUSPEND FORA PERIOD NOT TO EXCEED 60 DAYS, OR IMPOSE A CIVIL FINE NOT TO EXCEED $2000 FOR EACH VIOLATION MINNETONKA COUNCIL MAY EITHER SUSPEND FOR UP TO 60 DAYS OR REVOKE ANY LICENSE OR IMPOSE A CIVIL FINE NOT TO EXCEED $2000 FOR EACH VIOLATION EXCELSIOR COUNCIL MAY EITHER SUSPEND FOR UP TO 60 DAYS OR REVOKE ANY LICENSE OR IMPOSE A CIVIL FINE NOT TO EXCEED $2000 FOR EACH VIOLATION *Definitions vary slightly but generally, a best practices business is a business that has conducted a server awareness program of some sort for 75 % of its employees and may require an on -going training program for new and current alcohol selling employees. These cities operate municipal liquor stores. You can draw your own conclusions as to why their presumptive penalties would be at the low end of the spectrum. SECOND VIOLATION CITY PRESUMPTIVE PENALTY PRIOR LAKE 6 DAY SUSPENSION IF WITHIN 36 MONTHS OF FIRST VIOILATION SAVAGE $750 FINE AND MANDATORY TRAINING IF WITH- IN 24 MONTHS OF FIRST VIOLATION FOR BEST PRACTICES BUSINESS $1500 FINE AND 2 DAY SUSPENSION IF WITHIN 24 MONTHS OF FIRST VIOLATION FOR A NON - BEST PRACTICES BUSINESS SHAKOPEE $1500 FINE AND 5 DAY SUSPENSION IF WITHIN 36 MONTHS OF FIRST VIOLATION BURNSVILLE $750 FINE AND 3 DAY SUSPENSION IF WITHIN 24 MONTHS OF FIRST VIOLATION FOR A BEST PRACTICES BUSINESS $1500 FINE AND 6 DAY SUSPENSION IF WITHIN 24 MONTHS OF FIRST VIOLATION FOR A NON - BEST PRACTICES BUSINESS BLOOMING- COUNCIL MAY REVOKE, SUSPEND UP TO 60 TON DAYS, IMPOSE UP TO $2000 FINE FOR ANY LI- CENSE VIOLATION EDEN PRAIRIE $1000 FINE IF WITHIN 24 MONTHS OF FIRST VIO- LATION EDINA $1000 FINE AND 3 DAY SUSPENSION IF WITHIN 24 MONTHS OF FIRST VIOLATION LAKEVILLE $750 FINE AND 3 DAY SUSPENSION FOR BEST PRACTICES BUSINESS $1500 FINE AND 6 DAY SUSPENSION FOR NON - BEST PRACTICES BUSINESS FARMINGTON $500 FINE AND 7 DAY SUSPENSION IF WITHIN 24 MONTHS OF FIRST VIOLATION APPLE VALLEY $750 FINE IF WITHIN 24 MONTHS OF FIRST VIO- LATION CHANHASSEN 6 DAY SUSPENSION IF WITHIN 36 MONTHS OF FIRST VIOLATION CHASKA TAKES NO CIVIL ACTION UNLESS A WELL DOC- UMENTED `PROBLEM BUSINESS' ELKO- MARKET 6 DAY SUSPENSION IF WITHIN 36 MONTHS OF FIRST VIOLATION JORDAN COUNCIL SHALL REVOKE OR SUSPEND FOR A PERIOD NOT TO EXCEED 60 DAYS, OR IMPOSE A CIVIL FINE NOT TO EXCEED $2000 FOR EACH VIOLATION MINNETONKA COUNCIL MAY EITHER SUSPEND FOR UP TO 60 DAYS OR REVOKE ANY LICENSE OR IMPOSE A CIVIL FINE NOT TO EXCEED $2000 FOR EACH VIOLATION EXCELSIOR COUNCIL MAY EITHER SUSPEND FOR UP TO 60 DAYS OR REVOKE ANY LICENSE OR IMPOSE A CIVIL FINE NOT TO EXCEED $2000 FOR EACH VIOLATION As per the City of Prior Lake Code of Ordinances, any violation of any section of Section 301, `Liquor Control ", shall be considered an act of the license holder for purposes of imposing a civil penalty, li- cense suspension, or revocation. Our ordinance, like that of the oth- er cities, holds the license holder responsible for the conduct of its agents or employees while on the licensed premises. If, as in the case of MGM Liquors, a business fails a compliance check, nothing happens until the Police Department receives a case outcome report with a disposition of either a guilty plea or a court finding of guilt of the person charged with the offense. Once that is received, the City Manager sends the license hold a written notice of the civil violation, and advises the license hold of the penalty and the license holder's right to request a hearing regarding the violation. Section 301.1704 of the Prior Lake Code states that, "Each license issued hereunder shall be subject to suspension or revocation and /or imposition of a civil fine of up to Two Thousand Dollars ($2,000.00) for violation of any provisions of this Section or the laws of the State of Minnesota ". Section 301.1704 (1) then goes on to explain the purpose of Pre- sumptive Civil Penalties. As stated in that section, the purpose of the presumptive penalties is to, ". . . establish a standard by which the City Council determines the length of license suspension, the propriety of revocations, and the amount of fines, and shall apply to all premises licensed under this Section. These penalties are pre- sumed to be appropriate for every case; however, the Council may deviate in an individual case where the Council finds that there exist substantial reasons for making it more appropriate to deviate, such as, but not limited to, a licensee's efforts in combination with the State or City to prevent the sale of alcohol to minors. When sus- pending or revoking a license or imposing a fine for a violation of this Ordinance, the Council will provide written findings that support the penalty selected. Further, when deviating from the standard set forth herein, the Council shall set forth in writing the rationale for the devi- ation." After the first violation, any subsequent violation by the same licen- see is determined as follows: (1) If the first appearance was within three (3) years of the current violation, the current violation will be treated as second ap- pearance. (2) If a licensee has appeared before the Council on two (2) pre- vious occasion, and the current violation occurred within five (5) years of the first appearance, the current violation will be treated as a third appearance. (3) If a licensee has appeared before the Council on three (3) previous occasions, and the current violation occurred within seven (7) years of the first appearance, the current violation will be treated as a fourth appearance. (4) Any appearance not covered by paragraphs (1), (2) or (3) above will be treated as a first appearance. If within ten (10) days of receiving the letter from the City Manager informing the license holder of the presumptive penalty, a hearing before the City Council is requested, the City Council may appoint a hearing examiner who shall be a member of the City Council, or may conduct a hearing itself. Following receipt of a written request for hearing, the license holder shall be afforded an opportunity for a hearing before the Council. If a hearing examiner conducts the hear- ing, the hearing examiner shall report its findings and make a rec- ommendation to the full Council. After such hearing the Council may impose a fine, issue a suspension or revocation, or impose any combination thereof. Section 301.1708 states that nothing in this Section of the Code shall restrict or limit the authority of the Council to suspend the license up to sixty (60 days, revoke the license, im- pose a civil fine not to exceed two thousand dollars ($2,000.00) or from imposing conditions on the license holder. ISSUES: The survey seems to reveal three approaches. Some cities utilize a pro- gressive approach like Prior Lake but their penalties are considerably less and they are linked with best practices. These cities seem to be dispropor- tionately municipal liquor stores. A second approach is to identify one broad penalty to all infractions allowing the city to match the penalty to the egregiousness of the violation. The third approach is the one we use. It is important that the city council be comfortable with the presumptive penalties because the burden of proof to modify the penalty for any particu- lar instance is very difficult. The penalties presently provided in our city code assume that anyone can make a mistake and therefore we try to work with the business to adminis- ter the penalty but in such a way that the financial damage is minimized. The city council could add a financial penalty in the first case in lieu of the three day suspension. Or the council could establish a three day suspen- sion for on sale on the basis that they can remain open and enjoy some revenue stream while off sale must close their doors and receive no reve- nue for the suspension time. If the council believes that a change essential, then the staff does not rec- ommend any modification to the second through fourth violations .Any changes to the ordinance would apply to violations which occur after the effective date of the new ordinance. That does mean that both the Pointe and MGM Liquors which experienced violations some time ago would come under the present ordinance. The Council must determine the ultimate goal of such sanctions and then, the best possible way to attain that goal. Consideration must be given, not only to whether or not the presumptive penalties are "business friendly ", but also to what best serves the health and welfare of the broader community. Should it be decided that the current presumptive penalties are not to the Council's liking, the Council should give direction to staff. FINANCIAL IM- The financial impact is comparatively minor if the ordinance remains the PACT: same or if minor changes are made thereto. If major changes were made there is some possibility that the frequency of violations could increase cas- ing greater police department involvement on the streets and in the courts. 1. Take no action and retain the ordinance in its present form. 2. Direct the staff to make modification(s) to the presumptive penalties ALTERNATIVES: and prepare an ordinance amendment for subsequent council con- sideration. As determined by the city council. RECOMMENDED MOTION: