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HomeMy WebLinkAbout8A - Appeal of Tobacco Penalties O� PRIP' AV 0.4 U 4646 Dakota Street SE Prior Lake,MN 55372 `�InnvEso'��' CITY COUNCIL AGENDA REPORT MEETING DATE: MARCH 9, 2015 AGENDA#: 8A PREPARED BY: RANDY HOFSTAD, POLICE LIEUTENANT FRANK BOYLES, CITY MANAGER PRESENTED BY: MARK JOHNSON, ASSISTANT CITY ATTORNEY AGENDA ITEM: HEARING TO CONSIDER AN APPEAL FROM PETER FLINK DBA PRIOR LAKE SHELL FROM THE PENALTIES SET FORTH IN PRIOR LAKE CITY CODE SECTION 308 DISCUSSION: Introduction The purpose of this agenda item is to afford Mr. Flink with the opportunity to appeal the civil penalty for a second violation to the City Code with respect to Tobacco Sales. History Some years ago, the City was contacted by an anti-tobacco group. That group felt the many cities, including the City of Prior Lake, were not doing enough through their ordinances to prevent and discourage sale and use of tobacco by minors. They recommended penalties both for the clerk and also for the business when violation of tobacco laws occurred. The City Council concurred. The city attorney at that time then drafted a new ordinance and the City Council adopted it. Attached is a complete copy of the ordinance. The ordinance was intended to employ the hot stove approach. A business could have two violations within a 36 month period; on the third violation, the City Council would revoke the license for not less than two years. The civil penalties to the business for first and second violation within 36 months are progressive and as follows: • First Violation: A fine of at least $150 but no more than $500 • Second Violation: Within any 36 month period is a civil fine of$700 and suspension of the license for at least seven but no more than 20 days. The criminal process and the civil process work in tandem. Once the criminal part is completed, the civil part begins when the City Manager sends a written notice of the violation to the business holding the license, spelling out the penalty as indicated above and advising of the right to appeal the finding at a hearing before the City Council. In this instance the business owner has requested an appeal. Phone 952.447.9800 / Fax 952.447.4245/www.cityofpriorlake.com Current Circumstances The basic facts of this situation are as follows: A clerk at the Shell Gas Station sold a tobacco product to a minor on November 19, 2013. That clerk entered a guilty plea and paid a fine in court. The licens holder, Mr. Flink, paid the civil penalty of$150 for a first violation, which he did not appeal. More recently on April 23, 2014, another clerk at Shell Gas Station sold tobacco to a minor. Officer White initiated a traffic stop on a vehicle leaving the station. The two juveniles inside said they had stopped to buy "a tin" of Copenhagen. Officer White returned to the station and questioned the clerk who admitted selling the product without asking for any ID because she had done so about 3 months previously and the person produced an ID. The clerk was issued a citation for the violation. The clerk went to court on October 23, 2014 and pled guilty to the offense, paid court costs of $600, was placed on 1 year probation by the court, at which point, with no same or similar violations, a stay of adjudication will be recorded. Mr. Flink and his attorney believe that the city code provided penalty ($700 and 7 day suspension) should not be invoked since they: 1. "[A]ppeal the determination that the court disposition of the case involving [the clerk] is the basis for a civil violation determination under the City Ordinance."; and 2. "[A]ppeal and assert an affirmative defense that the license holder reasonably and in good faith relied on proof of age as described in Minn. Stat. § 340A.503 in making the sale." While the penalty was stayed, a criminal violation was affirmed by the defendant's initial plea (guilty). Conclusion The City Council should open the hearing and provide Mr. Flink and his legal representative the opportunity to state their case. We have been advised that comments on Mr. Flink's behalf will require about one half hour. ISSUES: This agenda item should not be considered a retrial of the violation of the sale of tobacco to a person under 18 years of age. Upon completion of the proceedings, the Council can close the hearing and act based upon the evidence submitted. After hearing all the evidence, the City Council can: 1) reaffirm the civil penalty as recommended by staff; 2) increase the suspension penalty up to 20 days if the facts presented justify such action; or 3) set the penalty aside in whole or in part. 2 Whatever action is taken, the Council should articulate their reason(s).The city attorney suggests that whatever the Council's final position, the City Attorney should be directed to prepare a resolution with findings of fact for council action at a subsequent meeting. ALTERNATIVES: 1) Conduct the hearing, determine the Council's position and take action to sustain, modify or void the civil fine as proposed by staff and direct the City Attorney to prepare a resolution with findings of fact for consideration as a consent item at the March 23 meeting. RECOMMENDED Alternative#1 MOTION: I I 3 NOLAN, THOMPSON & LEIGHTON, PLC RECEIVED Attorneys At Law JAN 2 6 2015 5001 AMERICAN BOULEVARD WEST 595 SOuTHGATE OFFICE PLAZA BLOOMINGTON,MINNESOTA 55437 MARK M.NOLAN TELEPHONE 952-405-7171 RANDY V.TYioMPSON DIRECT DIAL 952405-7176 ROBERT J.LEIGHTON,JR. FACSIMILE 952-224-0647 EMAIL rthompson@nmtlaw.com January 26,2015 VIA LEGAL COURIER Mr.Frank Boyles City Manager City of Prior Lake 4646 Dakota St. S.E. Prior Lake,MN 55372 Re: Peter Flink—Prior Lake Shell 4805 Dakota St.,Prior Lake,Minnesota 55372 REQUEST FOR HEARING Dear Mr.Boyles: Our office is counsel for Peter Flink and Prior Lake Shell.This is the written request for a hearing on behalf of Peter Flink and Prior Lake Shell of your letter dated January 14,2015,mailed January 16,2015, advising that an employee,Patricia Ann Lujan,has been sentenced for the sale of tobacco to a minor on April 23,2014. Your letter of January 14,2015 states that the conviction of Patricia Ann Lujan is a violation of Section 308.803 of the Code of Ordinances for the City of Prior Lake. Prior Lake Shell and Peter Flink appeal the determination that the court disposition of the case involving Patricia Ann Lujan is the basis for a civil violation determination under the City Ordinance. Additionally,Prior Lake Shell and Peter Flink appeal and assert an affirmative defense that the license holder reasonably and in good faith relied on proof of age as described in Minn. Stat. §340A.503 in making the sale. Accordingly,we respectfully request a hearing on all issues, claims and defenses in this matter. V y yours, RVT:Ijm RANDY V. HOMPSON c.o Business Regulations SECTION 308 TOBACCO SUBSECTIONS: 308.100: PURPOSE 308.200: DEFINITIONS 308.300: LICENSE REQUIRED 308.400: BACKGROUND CHECKS 308.500 LICENSE FEE 308.600: PROHIBITED SALES 308.700: MOBILE SALES 308.800: VIOLATIONS AND PENALTIES 308.900: HEARING ON DENIAL OR VIOLATION 308.1000: AFFIRMATIVE DEFENSE 308.1100: SEVERABILITY 308.100: 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. 308.200: 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 City of Prior Lake 308/p1 Business Regulations subdivision of the State, or any other business organization. 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, nabbed 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. 308.300: 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. 308.301 Application. 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. 308.302 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. 308.303 Tenn.All licenses are issued for a period of one(1)year.The license period is from January 1 to December 31. 308.304 Revocation or Suspension.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 Display. 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 Program. 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 BACKGROUND CHECK: In order to protect the health, safety and welfare of the public, the Prior Lake Police Department is authorized to conduct a criminal history background investigation and/or driver's license check on all persons who have applied for, or who will sell, hawk, vend, peddle or solicit under a license issued herein. The results of the criminal history background investigation and/or driver's license check may be cause for denial of the license at the sole discretion of the City. (Ord.Amd. 111-01, publ. 1/1/11) 308.500: 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. 308.600: 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. 308.601 Exception. 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. 308.700: 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. 308.800: VIOLATIONS AND PENALTIES. City of Prior Lake 308/p4 Business Regulations 308.801 Revocation or Suspension. Any violation of this Section shall be grounds to revoke or suspend a license. 308.802 Criminal Penalty. 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. (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, fumish, 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. 308.803 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. (1) 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 holders 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. City of Prior Lake 308/p5 Business Regulations 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 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. 308.900: 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) 308.901 Findings. 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. 308.902 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. 308.1000: 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. 308.1100: 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