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HomeMy WebLinkAbout15-046 Tobacco Appeal Findings of Fact 4646 Dakota Street SE Prior Lake, MN 55372 RESOLUTION 15-046 A RESOLUTION AFFIRMING THE SUSPENSION OF THE 2015 TOBACCO LICENSE FOR PETER FLINK DBA PRIOR LAKE SHELL AND IMPOSING A FINE Motion By: MCGUIRE Second By: MORTON WHEREAS, Minnesota Statutes Chapter 461 authorizes the City to issue tobacco retail licenses; WHEREAS, Prior Lake City Code Section 308 sets forth the applicable regulations for such licenses; WHEREAS, Such licenses are subject to certain standards of conduct and responsibility on the part of the licensee; WHEREAS, Prior Lake City Code Section 308.600 (1) prohibits the sale of any tobacco, tobacco product or tobacco-related device to any person under the age of 18. WHEREAS, Prior Lake City Code Section 308.803 allows the City to revoke, suspend and/or impose a fine on the holder of a tobacco license for violation of City Code Section 308. The license holder is responsible for any violation of the Section by its agents or employees. Section 308.803 (2) sets forth the following civil penalties: 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.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. WHEREAS, Prior Lake City Code Section 308.900 permits a license holder receiving a notice of violation to appeal the violation and request a hearing before the City Council; WHEREAS, The City issued a license to sell tobacco to Peter Flink doing business as Prior Lake Shell (“Licensee”) for sale of tobacco. WHEREAS, On November 19, 2013 a clerk for the Licensee sold tobacco to a minor. This constituted the Licensee’s first violation of Section 308. Licensee paid the $150 penalty and did not appeal; WHEREAS, On April 23, 2014 another clerk for the Licensee sold tobacco to a minor. The clerk admitted to selling the tobacco to the minor without checking his identification. The minor who purchased the tobacco confirmed that he did purchase the tobacco from the Licensee and that he was under the age of 18; WHEREAS, The City Manager issued to the Licensee a notice for the second violation of Section 308 within 36 months, imposing a $700 penalty and a 7 day suspension of the tobacco license. The notice included an explanation of the Licensee’s right to appeal the determination of violation and the penalty; WHEREAS, The Licensee appealed by correspondence dated January 26, 2015 and requested a hearing before the City Council regarding the determination of violation and the penalty; WHEREAS, A hearing was held before the City Council on March 6, 2015. The Council heard comments from the Licensee, the Licensee’s attorney, the Licensee’s clerk who sold the tobacco to the minor, Prior Lake Police Lieutenant Hofstad, and from City Staff; WHEREAS, The Licensee argued that the $700 penalty and the 7 day suspension should not be imposed because “the court disposition of the case involving Patricia Ann Lujan is the basis for a civil violation determination under the City Ordinance” and the Licensee asserted “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”; The City Council, based upon the recitals and upon the information and comments presented at the hearing, makes the following findings: 1.On November 19, 2013 a clerk for the Licensee sold tobacco to a minor. This constituted the Licensee’s first violation of Section 308. The Licensee did not appeal and paid the fine. 2.On April 23, 2014 a clerk for the Licensee sold tobacco to a minor. This constituted the Licensee’s second violation of Section 308 within 36 months. 3.With respect to the sale on April 23, 2014, the clerk admitted to selling tobacco to an individual under the age of 18 at the hearing before the Council. 4.With respect to the sale on April 23, 2014, the clerk has pled guilty to the criminal offense of sale of tobacco to a person under 18. 5.With respect to the sale on April 23, 2014, the Prior Lake Police spoke with the minor who purchased the tobacco. The minor confirmed that he purchased tobacco from the Licensee, that he was under the age of 18 and that he did not provide proof of identification to the clerk. 6.Prior Lake City Code Section 308.100 provides the following affirmative defense for sale of tobacco to a minor: “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.” 2 7.The Licensee argued that it satisfied its burden of proving the affirmative defense based on the clerk’s statement that she sold tobacco to the minor 3 months previously and that, at that time, the minor had produced identification. 8.The Licensee did not prove by a preponderance of the evidence that the clerk reasonably and in good faith relied on proof of age: a.The clerk pled guilty to the criminal charge of selling tobacco to a minor. The clerk either did not raise, or pled guilty despite the availability of, the affirmative defense. b.The minor who purchased the tobacco indicated to the police that he did not know the clerk. c.The Council finds that, due to the passage of time, reliance on an identification check 3 months previously is not reasonable. 9.City Code Section 308 does not require a criminal conviction in order to impose civil penalties. 10.The purpose of civil penalties is to discourage sale of tobacco to minors and as such imposition of civil penalties is appropriate in these circumstances. NOWTHEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: 1.The recitals set forth above are incorporated herein. 2.The imposition of a $700 penalty against Licensee and a 7 day suspension of Licensee’s tobacco license is hereby affirmed. PASSED AND ADOPTED THIS 23 DAY OF MARCH 2015. rd VOTE Hedberg Keeney McGuire Morton Thompson Aye ☒☒☒☒☒ Nay ☐☐☐☐☐ Abstain ☐☐☐☐☐ Absent ☐☐☐☐☐ ______________________________ Frank Boyles, City Manager 3