5.1. SR 03-08-2004[Liver
TO:
FROM:
DATE:
SUBJECT:
Item #5. I.
MEMORANDUM
Mayor and City Council
Joan Schmidt, City Clerk
March 8, 2003
Administrative Hearing for the Elk River Gas and
Convenience Store, Inc. regarding alcohol compliance check
On January 28, 2004, the Elk River Police Department, in conjunction with the Sherburne
County Health Department, conducted an alcohol compliance check of all licensed liquor
establishments in the City of Elk River. During the compliance check at the Elk River Gas
and Convenience Store, Inc., 13374 Highway 10, Minnesota, an employee of the Elk River
Gas and Convenience Store, Inc. sold alcohol to a person under the age of 21 years.
A letter by Certified Mail was sent on February 13, 2004 informing the licensee of this
incident and on February 25, 2004, I received a request from licensee Mai Yang for an
administrative heating.
An alcohol compliance hearing has been scheduled for tonight before the Elk River City
Council to determine whether a violation of the City Code has occurred and, if so, the
appropriate penalty. Ms. Yang was notified in person on February 26 of this date, time,
place and purpose.
Pursuant to Section 6-71 of the Elk River City Code pertaining to liquor violations, "no
suspension, fine, or revocation shall take effect until the licensee orpermit holder has been afforded an
opportuni(y for a hearing before the Coundl .... "
According to the City Code, the penalties for liquor violations are as follows:
NUMBER OF
VIOLATIONS DURING A
24 MONTH PERIOD
PRESUMPTIVE PENALTY
First Violation
Second Violation
l$500 civil penalty
5 day suspension and $1,000 civil penalty to
be paid before the expiration of the
Third Violation
Fourth Violation
suspension
10 day suspension and $2,000 civil penalty
to be paid before the expiration of the
suspension
License Revocation
This is a first time violation.
Pursuant to Section 6.93 of the City Code, 'M~ sale of beer, ~vine, or liquor in or from a~ premises
licensed under this chapter b~y a~ empl~ee authorized to make such sale in or from such place is the act of
the emplqer as ~vell as the person actual[y making the sale; and every such empl~er is liable to all of the
penalties provided b~y lam for such sale equal) mith the person actual~ making the sale."
ACTION REQUESTED
At the hearing, the Council has the authority to impose a $500 civil penalty.
§ 6-66 ELK RIVER CODE
The city clerk may issue duplicates of ail orig-I (a) Grounds. The council may suspend or re-
inal licenses issued under this division without' yoke any license for the saie of intoxicating or 3.2
action by the council upon the licensee's affidavit
that the originai has been lost and upon payment
of a fee in the amount established by resolution
for issuance of the duplicate. All duplicate li-
censes shall be clearly marked "DUPLICATE."
(Ord. No, 2000-01, § 1(800.08(7)(F)), 3-13-2000)
Sec. 6-67. Inactive businesses.
The city council may revoke the intoxicating
liquor or 3.2 percent malt liquor license of any
establishment proposed to be newly constructed
that is not under construction and exhibiting
satisfactory progress toward completion within
six months from the issuance of a license to such
establishment, or any establishment that ceases
operation for a period of six months or longer. A
hearing shall be held to review the progress made
by the establishment toward opening or reopen-
ing the establishment and, if satisfactory progress
is not demonstrated, the council may revoke the
license.
(Ord. No. 2000-01, § 1(800.18), 3-13-2000)
Sec. 6-68. Transfer.
Licenses issued under this division may be
transferred with the consent of the council.
(Ord. No. 2000-01, § 1(800.08(7)(C)), 3-13-2000)
Sec. 6-69. Posting.
All licensees under this division shall conspic-
uously post their licenses in their places of busi-
ness.
(Ord. No. 2000-01, § 1(800.08(7)(G)(i)), 3-13-2000)
Sec. 6-70. Renewal.
Apphcations for renewal of all licenses under
this division shall be made at least 60 days prior
to the date of expiration of the license and shall
contain such information as is required by the city
clerk. The council for good and sufficient cause
may waive this time requirement.
(Ord. No. 2000-01, § 1(800.08(7)(H)), 3-13-2000)
percent mait liquor and may levy a fine against
the licensee upon finding that the licensee of any
license granted pursuant to this division has:
(1) Failed to comply with any applicable stat-
ute, regulation, or ordinance relating to
intoxicating liquor or 3.2 percent malt
liquor or to the conduct of the licensee's
business; or
(2) Been convicted of a violation of the provi-
sions of any law, ordinance or regulation
relating to the exercise of any right granted
by such license.
(b) Revocation of erroneously issued license.
Any license issued to a person not entitled to
receive the license under this division or any law
of the state shall be revoked by the council at any
time after notice and public hearing.
(c) Hearing. No suspension, fine, or revocation
shail take effect until the licensee or permit
holder has been afforded an opportunity for a
hearing before the council, a committee of the
council, or a hearing examiner, as provided under
Minn. Stats. §§ 14.57--14.69 of the Minnesota
Administrative Procedure Act. The council, in its
discretion, may determine the appropriate body
to conduct the hearing, and shall so name such
body in the council action by which such hearing
is called. Such hearing shail be conducted upon
written notice to the licensee served in person or
by certified mail not less than ten and not more
than 30 days prior to the hearing date, stating the
time, place, and purpose thereof.
(d) Presumptive civil penalties. The purpose of
this subsection is to establish standards by which
the city council may determine appropriate pen-
alties, including fines, suspensions, and revoca-
tions, for violations of this chapter or other laws
and regulations. These standards shail apply to
all licenses granted under this division. The pen-
alties set forth in this subsection are presumed to
be appropriate for every case; however, the coun-
cil may deviate from these penalties in any case in
which the council finds that there exist substan-
tial reasons for such deviation, such as, by way of
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ALCOHOLIC BEVERAGES § 6-71
example and not of limitation, a licensee's efforts
in cooperation with the state or city to prevent the
sale of alcohol to minors. When deviating from
these standards, the council shall provide written
findings that support the penalty selected.
(1) The following minimum penalties shall be
presumed appropriate:
a. Upon a finding that a licensee has
committed a violation of one of the
following types, the license may be
revoked:
1. Commission of a felony related
to the licensed activity.
2. Sale of alcoholic beverages while
the license is under suspen-
sion.
3. Sale of intoxicating liquor where
the license is only for sale of 3.2
percent malt liquor.
b. The following violations shall pre-
sumptively be penalized according
to the violation grid in subsection
(d)(1)c of this section, subject to the
provisions of this section:
1. Sale of alcoholic beverages to
an underage person.
2. Sale of alcoholic beverages to
an obviously intoxicated per-
son.
3. After-hours sale/display/con-
sumption of alcoholic bever-
ages.
4. nlegal gambling on licensed pre-
raises.
Any other violation of this chap-
ter or of federal, state or local
law relating to or governing the
manufacture, sale, distribution
or possession for sale of liquor
or any alcoholic beverage.
c. The violation grid is as follows:
Number of Violations During 24-Month Period
First Violation
Second violation
Third violation
Fourth violation
Presum£tive Penalty
1500.00 civil penalty
5-day suspension and $1,000.00 civil penalty to be
laid before the expiration of the suspension
10-day suspension and $2,000.00 civil penalty to be
paid before the expiration of the suspension
License revocation
(2)
For the purposes of this section regarding
penalties for violations relevant to licens-
ing, the number of violations by a licensee
shall be cumulative over a 24-month pe-
riod on a rolling basis. Thus, after the end
of 24 months following the day a violation
occurred, that violation shall be removed
from consideration for purposes of apply-
ing the grid to determine penalties. Noth-
ing in this subsection shall restrict the
discretion of the council with regard to
determination of the appropriate penalty
for any violation.
(3)
Nothing in this subsection shall restrict
or limit the authority of the council to
suspend the license for up to 60 days,
revoke the license, impose a civil fine not
to exceed $2,000.00, impose conditions, or
take any other action in accordance with
law, provided that the license holder has
been afforded an opportunity for a hear-
lng in the manner provided in this chap-
ter.
(e) Return of revoked license to city. Whenever
any license issued for any 'purpose under this
division is revoked for any reason whatever, the
licensee shall forthwith return such license to the
.CD6:13
§ 6-71 ELK RIVER CODE
city clerk, and it shall be the duty of the police
officer or other person notifying such licensee or
person operating under such revoked license im-
mediately to remove or cause to be removed such
license from the wall or other place where such
license shall be posted or exhibited and return
such license to the city clerk.
(Ord. No. 2000-01, § 1(800.20), (800.22), (800.24),
3-13-2000)
State law reference--License revocation, suspension and
civil penalty, Minn. Stats. § 340A. 415.
Secs. 6-72~6-90. Reserved.
DMSION 3. OPERATIONAL RESTRICTIONS
AND REQUIREMENTS
Sec. 6-91. Inspections by police officers.
(a) All premises licensed under this chapter
shall at all times be open to inspection by any
police officer to determine whether or not this
chapter and all other laws are being observed. All
persons, as a condition to being issued such li-
cense, shall consent to such inspection by such
officers and without a warrant for searches or
seizures.
(b) It is unlawful for any licensee or agent or
employee of a licensee to hinder or prevent a
police officer from making such inspection.
(Ord. No. 2000-01, § 1(800.32), 3-13-2000)
Sec. 6-92. Responsibility of licensee for con-
du~t on licensed premises.
Except as provided in this chapter, every lic-
ensee under this chapter shall be responsible for
the conduct of his place of business and shall
maintain conditions of sobriety and order therein.
(Ord. No. 2000-01, § 1(800.28), 3-13-2000)
State law reference-Responsibility of licensee, Minn.
Stats. § 340A.501.
,~ Sec. 6-93. Responsibility of licensee for sales
by employees.
Any sale of beer, wine, or liquor in or from any
premises licensed under this chapter by any em-
ployee authorized to make such sale in or from
such place is the act of the employer as well as the
person actually making the sale; and every such
employer is liable to all of the penalties provided
by law for such sale equally with the person
actually making the sale.
(Ord. No. 2000-01, § 1(800.30), 3-13-2000)
Sec. 6-~94. Hours and days of sales.
(a) 3.2 percent malt liquor No sale of 3.2 per-
cent malt liquor shall be made between 1:00 a.m.
and 8:00 a.m. on the days of Monday through
Saturday, or between 1:00 a.m. and 12:00 noon on
Sunday.
(b) Intoxicating liquor, on-sale. Except as pro-
vided in subsection (c) of the section no sale of
intoxicating liquor for consumption on the li-
censed premises may be made between 1:00 a.m.
and 8:00 a.m. on the days of Monday through
Saturday, or after 8:00 p.m. on December 24, or
after 1:00 a.m. on Sundays.
(c) Intoxicating liquor, Sunday sales, on-sale.
Sales of intoxicating liquor for consumption on
the premises by hotels, restaurants, bowling cen-
ters, or clubs which have on-sale licenses and
which also have facilities for serving not less than
30 guests at one time shall be permitted between
the hours of 10:00 a.m. on Sundays and 1:00 a.m.
on Mondays in conjunction with the serving of
food, provided that the hcensee is in conformance
with the Minnesota Indoor Clean Air Act. An
establishment serving intoxicating liquor on Sun-
day must obtain a Sunday license. A Sunday
license shall be issued for a one-year period run-
ning from July I to June 30 and shall be subject to
all provisions of this chapter.
(d) Intoxicating liquor, off-sale. No sale of in-
toxicating liquor may be made by an off-sale
licensee on Sundays, before 8:00 a.m. on Monday
through Saturday, after 10:00 p.m. on Monday
through Saturday, on Thanksgiving Day, on Christ-
mas Day (December 25), or after 8:00 p.m. on
Christmas Eve (December 24). The council may
further limit the hours of sale of alcoholic bever-
ages.
(e) Display of liquor No licensee shall display
liquor to the public during hours when the sale of
liquor is prohibited.
(Ord. No. 2000-01, § 1(800.34(5)), (800.36), 3-13-
2000)
State law reference--Hours and days of sale, Minn.
Stats. § 340A.504.
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