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8.2. SR 03-21-2011REQUEST FOR ACTION TO ITEM NUMBER Ci Council 8.2. AGENDA SECTION MEETING DATE PREPARED BY Administration March 21, 2011 Tina Allard, Ci Clerk ITEM DESCRIPTION REVIEWED B~/ Consider Tobacco License for Omar Wazwaz Lori ohnson, Ci Administrator REVIEWED BY Peter Beck, Ci Attorne ACTION REQUESTED A couple options for Council motions: 1. Direct staff to draft a resolution of denial for a tobacco license to Omar Wazwaz based on not meeting the requirements of Section 26-40 of the Elk River City Code. Mr. Wazwaz would then have a right to a hearing before the Council at a date to be determined later. 2. Direct staff to amend the tobacco ordinance in order to allow tobacco licenses within 500 feet of school/park property. ^ Mr. Wazwaz would then be allowed to operate with a tobacco license once the amendment is approved but would still be required to install a separate ventilation system. ^ Staff would also recommend that Sabry (aka Steve) Wazwaz not be allowed any ownership or management rights/responsibilities in the business. BACKGROUND/DISCUSSION Following is some history related to tobacco licensing for the last few years. Juy 200 A moratorium was put in place (for tobacco product shops) in order fox staff to review the tobacco ordinance in regards to certain issues as noted in the attached July 16, 2007 Council minutes. January 2008 The City Council made an exception to the moratorium in order to allow Ali Sadeq to purchase the tobacco shop located at 19112 Freeport Street from Sabry (aka Steve) Wazwaz. As you may recall Council was moving forward with considering a license revocation for Sabry Wazwaz due to his pleading guilty to tax fraud charges. (per a March 6, 2008 Star Tribune article Sabry seas sentenced to 42 months in prison, 3 years supersrised release, and s~stitution of,~'1,244,859.) Juy 2008 Due to numerous changes the original tobacco ordinance was repealed and a new ordinance adopted. N:\Public Bodies\Ciry Council\Council RCA\Licensing\Tobacco\2011\Smoke Shop.doc Omar Wazwaz is requesting a tobacco license for 19112 Freeport Street. All application materials have been submitted as of February 15, 2011, and the police chief has signed off on the background check. Omar Wazwaz did have a tobacco license for the Freeport store for 4 months in 1999. There were no issues raised at that time. Summarizing Elk River City Code Section 26-40, a license may not be issued for a tobacco products shop where the location is: ^within 500 feet of a school or park property; and ^in amulti-tenant facility and does not have its own separate ventilation system. The Freeport store was gxandfathered in from having to meet these requirements when the new tobacco ordinance was adopted in July 2008. A change in ownership requires compliance with the new ordinance. Per Section 26-71 no transfers are allowed and relocation or sale of a business shall require the approval and issuance of a new license. ATTACHMENTS ^ Location Map ^ July 16, 2007 Minutes Regarding Council Reasons fox Moratorium ^ April 14, 2008 Worksession Minutes Regarding Council Comments Action Motion by Second by Vote Follow Up N:\Public Bodies\City Council\Coundl RCA\Licensing\Tobacco\2011\Smoke Shop.doc ~~: ~~=` ,~:~ r ~"~ '~ City Coundl Muiutes Page 13 July 16, 2007 • Mr. Barnhart stat a timeframe would be unique for ch case because it would depend on where in the city th sign was located and this wool evaluated during the conditional use process by Council MOVED BY COUNCI ER GUMP REY AND SECONDED BY COUNCILMEMBER FARB TO AD ORDINANCE 07-10 AMENDING SECTION 30-1 KDEFINITIO " SECTION 30-864 KCHANGEABLE COPY" OF THE CITY CODE O INANCES. CASE NO. OA 07-09. Councilmember Motin ~e 30 square feet Ms. Carney stated only ti~changeable portion MOTION CARRIED 5-0. ~. 7.1. Consider Tobacco License-The Piecemaker Ms. Allard presented the staff report of the sign would be considered as part of sign would be considered Chief Beahen stated Mr. Peplinski was convicted of a misdemeanor for disorderly conduct on February 13,1999, in Saint Louis County. He noted the convictions in the staff report were juvenile convictions and couldn't be considered by Council. Pat Briggs, owner of the building where applicant is considering operating his tobacco establishment Stated it can be difficult for a person to remember convictions that may have happened in their past He stated Mr. Peplinski made no direct intentions to hide or falsify information on his application. He stated he completes his own background/credit checks on people going into his buildings. Councilmember Motin stated a person should remember if they were convicted of a crime. Mr. Briggs stated he wouldn't know if he had any convictions in his past Chief Beahen stated the other business owned by the applicant is known as a head shop. He further expressed concern with Mr. Peplinski's background. He stated this business will be located adjacent to a grade school and within two blocks of a high school He stated he is unsure of the applicant's intention for this shop. Damon Peplinslsi,1453513~ Avenue North, Plymouth-Stated the disorderly charge against him was a misunderstanding. He stated the owner was going to drop the charges but he couldn't because the cops were already at the establishment He stated he reviewed his background check as completed by Mr. Briggs and seen that he didn't have any misdemeanor convictions so he didn't include it on his application. Mayor Klinzing questioned the chief why the applicant would not get the conviction listed in the background check completed by Mr. Briggs. Chief Beahen stated police departments have access to more information than regular citizens, thus he has much more detailed information. He stated there is a lot of information on Mr. Peplinski that he can't disclose and this leads to other concerns. City Council Mnutes July 16, 2007 Page 14 The applicant stated he didn't realize his conviction was a misdemeanor. __ • Councilmember Farber questioned the applicant about his other shop and the products he sells. Mr. Peplinski stated it is a tobacco shop with a hookah bar. MOVED BY COUNCILMEMBER FARBER AND SECONDED BY COUNCILMEMBER ZERWAS TO DENY A TOBACCO LICENSE TO DAMON AND BEN, INC. BASED ON THE FOLLOWING FINDINGS: 1. APPLICANT DOES NOT MEET THE CITY STANDARD FOR GOOD MORAL CHARACTER AS SET FORTH IN SECTION 3&1 OF THE CITY CODE DUE TO PROVIDING FALSE INFORMATION ON HIS APPLICATION AND BEING UNABLE TO SERVE THE PUBLIC IN A FAIR, HONEST, AND OPEN MANNER 2. APPLICANT PROVIDED FALSE INFORMATION ON HIS APPLICATION AS SET FORTH IN SECTION 26-63 (4) OF THE CITY CODE. MOTION CARRIED 5-0. Councilmember Motin stated that the application may come back again for Coundl to consider and he is concerned about the city's ordinance and whether certain products can be prohibited. Mr. Beck stated he needs to check to see what type of restrictions would be allowed in the . ordinance. He stated one issue the city should address is the proximity of tobacco shops to schools. Couacilmember Motin noted that there is another smoke shop in town that is near a school. Mr. Beck stated the Council could change the ordinance and the current shop could be grandfathered. Mayor Klinzing stated with the new Freedom to Breath Act allowing cities to enforce more stringent measures for second hand smoke the city may want consider eliminating smoking in tobacco shops. Councilmember Farber would like to see if there is anything the city can do to eliminate paraphernalia Councilmember Zerwas mentioned that state legislators were considering legislation on paraphernalia and he recommended a letter be seat to representatives. Councilmember Farber concurred. MOVED BY COUNCILMEMBER MOTIN AND SECONDED BY COUNCILMEMBER FARBER TO IMPOSE A SIX MONTH MORATORIUM ON RETAIL SALES OF SMOKING SUPPLIES WHERE IT IS THE PRIMARY PURPOSE OF THE BUSINESS AND DIRECT STAFF TO INVESTIGATE AND . CHANGE THE CITY'S ORDINANCE AS DISCUSSED ABOVE. MOTION CARRIED 5-0. City Council Minutes Aprli 14, 20D8 Page 4 Chief Beahen pro ~ ed some statistics an traffic calming and on ha certain speeds affect pedestrian accidents stated getting drivers to 3fl mph and bel is a goad goal to try and achieve in residential ar The Council asked how speed to collected from a sp d sign would be beneficial to the city. Chief Beahen stated the data would re alp es and average speeds which would assist the department of when they should incr affic patrol He stated the data could also show that there may be no issues with spe at could be proven €o petitioners. The Council felt that extra traffic enf cement sh uld be done as well if the city is going to install signage and re-stripe the str t. Mr. Maurer stated he will co a baclc to Council with a re detailed plan for Trott Brook Parkwap. The Council diret,,t~d staff to work on drafting a traffic calming 5.3. Discussion on Qrdinance Changes ivls. Allard reviewed the following azdinances and Council comments are listed with each of them. ° Tobacco o The 9D percent threshold for the definition of a tobacco products shop is too high and should be set at 50 percent or more. State law needs to be reviewed to see if this definition can be changed. o Concern about having a separate room for sampling. People are going to the shop specifically for tobacco and this would be too much government interference. There was also concern about the shops becoming a smoking lounge. o Concern about having a separate ventilation system. There was concern about tobacco shops located in multi-tenant buildings and how the ventilation would affect the neighbors. o Change the language regarding transfers. o Inclusion of a penalty clause. o Concerns with the 'ry issued I ooking like it endorses solicitors/peddlers. The attorney suggested m g th photo ID the city issued license tivith expiration dates. Chief Beahen su a ed looking at an ID that has a time limit and becomes void by a certain date. s Hated that the city should make sure costs are being covered with the ad ' 'anal osts for the ID. o Revocation show a include in the Grounds for Granting and Denial. o Change the h s to Monday ough Saturday, noon to 6:Q0 p.m. o Solicitors s uld be charged a fe m cover the city's administrative costs.