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Home My WebLink About13.F.1. Review of Tobacco Violations /3 r. I . CITY OF SHAKOPEE Memorandum TO: Mayor and City Council Mark McNeill, City Administrator FROM: Judith S. Cox, City Clerk SUBJECT: Alleged Tobacco Violations DATE: November 30, 2007 INTRODUCTION: On November 7, 2007, City Council set a hearing for December 4, 2007 to consider the alleged tobacco violations that occurred during a compliance check on August 8, 2007. BACKGROUND: Notices were sent to Twin Cities Stores Inc., Holiday Stationstores Inc., and Valley Liquor, Inc. concerning their alleged violation of selling tobacco products to a minor. The notice informed the licensees that the City Council will consider this issue at its December 4, 2007 meeting at 7:00 p.m. Any licensee who furnishes, sells or attempts to sell tobacco, tobacco products or tobacco related devices to a minor or whose employee furnishes, sells or attempts to sell tobacco, tobacco products or tobacco related devices to a minor shall be charged an administrative fine and shall also have his or her license suspended as outlined in the City Code. This is the first violation for the licensees within a three-year period. For the first violation, the City Code provides for a $200 fine + a 2 day license suspension. The penalty for a first or second incident shall be imposed and administered by the City Administrator upon an admission by the licensee that the licensee furnished, sold, or attempted to sell tobacco, tobacco products or tobacco related devices to a minor. Twin Cities Stores Inc. and Holiday Stationstores have signed the "Waiver and Admission of Violation". Valley Liquor, Inc. has not admitted to the viola~ion nor have they signed the "Waiver and Admission of Violation". The purpose of this agenda item is to allow the licensee (Valley Liquor, Inc.) to appear before the Council and either admit or deny the violation. If they admit the violation, there is no need for a hearing. If, however, a licensee denies the violation, a hearing before a hearing officer will need to be scheduled if the City Council is considering suspension or revocation of the license. I have been advised by the licensee that he does intend to pay the fine, but would like to speak before the City Council. Tobacco License Hearing November 30, 2007 Page 2 PENALTIES: It is recommended that the penalties outlined in the city code be imposed. Consistent with past actions of the City Council and for purposes of discussion, staff is recommending that the license suspension begin at 12:01 a.m. on the second Friday following Council action; however, Council may wish to consider another time. The licensees will be notified of Council's action. Please see the attached letter from Mr. Steven Rush, on behalf of Holiday Stationstores Inc., asking that their two day suspension be delayed to January 7 through January 8,2008. RECOMMENDATION: It is recommended that the City Council proceed as follows: 1. The City Attorney will give a brief summary of the background and purpose for the agenda item. 2. The Mayor would then call the licensee and the licensee will have an opportunity to admit or deny the violation and to give any extenuating circumstances they feel are relevant. If the licensee admits the violation, the City Council can impose the penalty immediately. If the licensee denies the violation, the City Council can determine whether the violation occurred, without the use of a hearing officer, and impose the penalty. 3. If the licensee does not appear at the meeting, they will have waived their right to a hearing and the City Council can impose the penalty. RECOMMENDED ACTION: 1. Move to impose a penalty on Valley Liquor, Inc., 1102 Shakopee Town Square, for the first violation, for the sale of tobacco to a minor, in the amount of $200.00 and a suspension of the tobacco license for two days beginning at 12:01 a.m. on December 14, 2007 and ending at 12:00 midnight on December 15,2007. 2. Acknowledge receipt ofthe "Waiver and Admission of Violation" from Twin Cities Stores Inc., dba Oasis Market #528,615 South Marschall Road, for the sale of tobacco to a minor and impose a penalty for the first violation in the amount of $200.00 and a suspension of the tobacco license for two days, beginning at 12:01 a.m. on December 14, 2007 and ending at 12:00 midnight on December 15,2007. Tobacco License Hearing November 30, 2997 Page 3 3. Acknowledge receipt of the "Waiver and Admission of Violation" from Holiday Station Stores Inc dba Holiday Stationstore #250, 1381 Greenwood Court, for the sale of tobacco to a minor and impose a penalty for the first violation in the amount of $200.00 and a suspension of the tobacco license for two days, beginning at 12:01 a.m. on December 14, 2007 and ending at 12:00 midnight on December 15, 2007. (If Council chooses an alternate time for the two day suspension, it is recommended that it be the same for all three licensees.) TobaccoHearing W 0 waiver Subd. 12. Administrative Penalties. A. Licensees. Any licensee who fumishes. sells or attempts to sell tobacco. tobacco products or tobacco related devices to a minor or whose employee furnishes, sells or attempts to sell tobacco, tobacco products or tobacco related devices to a minor . shall be penalized as follows: First Incident $200 fine + 2 day license suspension Second Incident Within 36 Months of First Incident $500 fine + 5 day license suspension Third or Subsequent Incident Within 36 Months of First Incident $1,000 fine + 30 day license suspension Or revocation The penalty for a first or second incident shall be imposed and administered by the City Administrator upon an admission by the licensee that the licensee furnished, sold, or attempted to sell tobacco, tobacco products or tobacco related devices to a minor. The penalties for a third or subsequent incident may only be imposed by the City Council. Any revoked license shall not be eligible for reinstatement for at least twelve (12) months. (Amended. Ord. 633, July 18, 2002) B. Other Individuals. Any individual who sells tobacco, tobacco products or tobacco related devices to a minor shall be charged an administrative penalty of $50.00, subject to the right to a hearing before the City Council as provided in Subdivision 11 of this Section. Nothing in this Section shall prohibit the City or other jurisdiction from seeking criminal prosecution for any alleged violation of this Section by any individual other than a licensee or employee of a licensee. Subd. 13. Criminal Penalties. A. It shall be a gross misdemeanor for anyone to sell tobacco, tobacco products or tobacco-related devices to a minor. B. It shall be a misdemeanor for anyone to furnish tobacco, tobacco products or tobacco-related devices to a minor. C. It shall be a petty misdemeanor for a minor to smoke, chew, sniff or otherwise use tobacco, tobacco products or tobacco-related devices. D. It shall be a petty misdemeanor for a minor to have in minor's possession tobacco, tobacco products or tobacco-related devices. This provision does not apply to a minor who is an employee of a license holder while stocking tobacco, tobacco products or tobacco-related devices or to a minor lawfully involved in a compliance check. E. It shall be a petty misdemeanor for a minor to purchase, or attempt to purchase tobacco, tobacco products or tobacco-related devices, or for any person to purchase or otherwise obtain such items on behalf of a minor. This provision does not apply to a minor 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. F. It shall be a petty misdemeanor for a minor to sell, furnish, or give away any tobacco, tobacco products or tobacco-related devices. PR9' revlsacS in 2002 622 Holiday Companies (;[ N. OfTlcr .IS()! Ar-v\I"I\.lCi\N IH )lII lVAI,[ } wrsT, Bl()(H....~INc;T()N, ,Iy~t'\: ~c;.U7 / MAIL AI)[)I\I:SS: P.O, 1)0\ l~~).l MINNI-/\I'()IIS, i\;\N ~rj-l-t().I PH. lJ-).l_H \()-B71J() I ri\X q~2-H W.I\IHd tRf:DrI ()fIICl MAli /\[)[)I-{rss: I).(). H()X U I (l MINNLr\I)( lLlS, M:-.J .S:-f.j.l() / PI 1. QS2-lJ21-:;.WO / h\X lJ):~-q21 ")..!(h Direct Dial: 952/832-8557 Fax: 952/830-1681 E-mail: steve.rush@holidaycompanies.com November 20, 2007 Mayor John J. Schmitt and Members of the City Council City of Shakopee 129 South Holmes Street Shakopee, MN 55379 RE: Holiday Stationstores, Inc.lSale of Tobacco to Minors/Shakopee, MN #0250 Dear Mayor Schmitt and City Council Members: On behalf of Holiday Stationstores, Inc. ("Holiday"), we have waived our right to a hearing for the underage sale of tobacco that occurred on August 8, 2007 at our Stationstore located at 1381 Greenwood Court in Shakopee, Minnesota. By policy, all Holiday Sales Associates are required to ask for appropriate identification for individuals who appear to be 40 years of age or younger. Despite the intensive training that we provided to the Sales Associate at issue and the substantial resources we expend in self policing age-restricted products, an unfortunate sale was made. Please be assured that we are as concerned about this as you are, and we will continue our industry- leading efforts to prevent an underage sale. We understand that a two-day suspension will be imposed, and that the normal practice is to impose it on a weekend within two weeks of the hearing date. Unfortunately, that would involve a suspension of our business license during the most significant retail shopping season of the year, between Thanksgiving and the New Year. Fourth quarter sales are as significant for convenience stores as they are for stores more traditionally associated with gift purchases. With more people shopping this time of year, they are far more likely to stop at a convenience store for any number of products, including tobacco. If we lose the ability to sell tobacco on a weekend during the holiday season, we likely will lose customer purchases not just for tobacco products, but for other items such as gasoline, drink bar and other inside sales, car wash, etc. Accordingly, our Greenwood Court unit would be unduly penalized for having to serve a suspension during the peak retail season of the year. Due to this serious concern, we respectfully request that the two-day suspension be held in abeyance until after the New Year, to be served for the 48-hour period on January 7 through January 8, 2008. Mayor John T. Schmitt and Members of the City Council November 20,2007 Page 2 Thank you for considering our request in this matter, and we apologize for any inconvenience this matter has caused the City. SGR/kjl.02