5.1. SR 04-12-2004TO:
FROM:
DATE:
SUBJECT:
Item #5. I
MEMORANDUM
Mayor and City Council
Joan Schmidt, City Clerk
April 12, 2003
Administrative Hearing for George Larson of Elk River Bowl
Convenience Store, Inc. regarding alcohol compliance check
On JanuauT 28, 2004, the Elk River Police Department, in conjunction xvith thc Shcrburnc
Coun~T Health Department, conducted an alcohol comphance check of all licensed hquor
establishments in the City of Elk River. During the compliance check at the Elk River Boxvl,
13161 Highxvay 10, an employee sold alcohol to a person under the age of 21 ?ars. (l'lcasc
note that in the attached memo from Police Chief Jeffrey Beahen, it ~vas noted that a 46-
year-old male sold alcohol to minor, did not check ID; Manager and other employees xvere
sitting at the bar when sale took place; later commented that they thought the person should
have been carded.)
A letter by Certified Mail xvas sent on February 13, 2004 informing the licensee of this
incident and of the opportunity to request by March 13 an administrative hearing before the
Ciu7 Council. Pursuant to Section 6-71 of the Elk River Ciu; Code pertaining to liquor
violations, '~o s~/spem'ion,./i~e, or revocation sh~// /(&e qff&'~ ~mtil the licensee or permi/ ho/der has hee~
On March 12, a letter xvas received from Mr. Larson stating that he has chosen to not have
an administrative hearing and to not pay the $500 fine.
I checked with Cit3- Attorney Johnson if there xvas anything in state statute xvherein the
licensee xvould not have to pay this fine as Mr. Larson's letter of March 10 irnpliedo A letter
xvas sent on March 31 informing Mr. Larson that the penally amount xvas due by April 7 and
cited Section 340A.415 of state statutc xvhich in essence states that a violation of statute,
rule, or ordinance relating to alcohohc beverages gives the council the authoriU' to invoke a
suspension of hcense, hnposc a civil penalty, or impose any combination of thesc sanctions
after the opportunity for an administrative hearing. I also cited the l';lk River ordinance and
case laxv.
On April 5, Mr. Larson appeared before Council to discuss this situation. Since the meeting
of April 5 was a Special Meeting, this item could not be added to the agenda and Council
informed staff to place this discussion item/administrative hearing on tonight's agenda.
Since Mr. Larson xvas present, he is aware of tonight's date, thane, place and purpose.
Mr. Larson has waived his rights to an administrative hearing in the appropriate thne span
and has refused to pay thc $500 fine; Council now needs to determine thc next step.
Pursuant to Section 6.93 of the City, Code, 'Mqy sak q/'heer, wine, or/iq/~/or in os from asy premises
licensed ~mder /his chapler ~y a~y emplqyee a~thoff:~ed to make .~'~/cf; s~le in o(/?om .~'~/ch h/ace i.; the
3e emp/qyer as well as the per,'on ac/u~(ly making 3e s~k; and eve~ s~3 emp/qyer L, Ii~bk /o ~11
penal/ies pro~ided (~y 3v.)r .~'~/3 sale eq~a~/y mitt 3e person act~a~l), makin~ 3e sale."
Pursuant to Section 6-71 of the Ci%T Code, (3)Nothin,~ in t/.~is s~/hsection sba# rest~4:/or limit
/i~vn.~v ho/der has teen qffbrded an oppotl~mi(y_3r a heaff~ in 3e manner pmvi3d in 3Z~' 63~¢ler. "
I xvish to remind Council that thc license rcncxval process for alcoholic beverages xvill be
before them in June.
ACTION REQUESTED
Council has the authority to suspend, revoke, impose conditions, or take an): other action in
accordance with laxv. Council may also choose not to rene~v thc hccnscs (on-sale and
Sunday hquor) for 2004-2005 xvhen this is before them in June.
Police Department
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
Joan Schmidt, City Clerk
Jeffrey A. Beahen, Chief of Police
1-29-04
Alcohol Compliance Checl<s
On t-28-2004 our department, in cooperation with Sherbume Count7 PubLic Health
cofi-~t~'~SdTIcohol compliance checks at twentT-one Licensed establishments in _~&~C!.¢'_.P._f
Elk Privet. Nineteen of those businesses passed the compliance checks. T_WO 0.f d?.se
businesses actually sold alcohol to ~rnnors. Those businesses were:
1) Cenex
13374 Highway 10 (Case ~04-002504)
30-year old clerk sold alcohol to ~T2nor. Did check ID and scanned it but thought
drinking age was 18.
2)
Elk Bowl
13161 Highway 10 (Case #04-002505)
46-year old male sold alcohol to minor-did not check ID. Manager and other
employees were sitting at the bar when sale took place. Later commented that
they thought the person should have been carded.
Compliance checkers made the comment that although the rest of the establis?u'nents
passed, that in at least two other businesses, the staff person had to go check with a
manager or another employee to determine if the person being carded xvas old enough to
dri~nX. In one business the server thought the legal age was 18, in the other they thought it
was 19.
Both employees at the two non-compliance locations were charged with sale to minors.
Please contact me if you have questions concerning this process and results.
-qAver
13065 0r0no Parkway
Elk River, ~,IN 55330
ELk Bow[
George Larson
131 co i 14ighway 1 ¢
Elk River, 5L%' 553300
Dear ~. Larson:
On .}'anuaO' !8, 2004, the ELk River Police Department, in coniu~.ction with the Sherburne Count,-
Health Department, conducted ~n alcohol corr~pLiance check o( ail lice.qsed liquor establlshmerits
the G~l of Elk River. During the compliance check at ~he Elk Bowl, 13 i61 Highway i0, Elk
Minnesota, an emplo},~e o~ the EI~ Bowl sold alcohoi ~o a person under the age o( 21 years.
Pu~suanz to the ELk River CiV Code, the administrative penal~/assessed for a ~s: o~nse o] se~g
~quor :o a person ~der :he ~ge oI 21 ~a~ ~5:h~ a 24-mon:h period ~ $500.00. According :o :he
GV Ordnance, ?u are a~owed :he oppo~univ ol a hear~g beiore the G~ Counc~. You may
request a hear~g be(ore :he Ci~ ~unc~ ~:h~ 3~ da)~ irom :he date of t~'ie:ter (March 13, 2004).
If you decide ~o waive ~he he~r~g, 7ou m~ sub~ pa~en~ o~ :he adumbrative penal~7 ($500:30)
prior ~o March 13,200.4. '
Please feel free to call me at 763-635-1002 to disc~ss this matter.
Sincerely,
G~ Ce rk
left 8eanen~ Police Chief
Phone: 763.635.
?~x: 763.635.1090
www. ci.eik
LIQUOR VIOLATION NOTICE
VIOLATION:
LICENSEE:
DATE:
"Sale of liquor to a minor"
Elk Bowl
February- 13, 2004
DATE OF VIOLATION: January'28, 2004
Pursuant to the Elk River City Code, the administrative penal~ assessed for a first offense within a
24-month period of selling liquor to a person under the age of 21 years is $500.00. You mayrequesr a
hearing before the City Council within 30 days from the date of tkis notice (March 13, 2004). If you
decide to waive the hearing, you must submit payment of the admi_nistrative penalty ($500.00).
(Please complete this form and return it to the City of Elk Ricer. If you waive your right to a
hearing, submit the administrative penalty fee with this form.)
I wish to request an administrative hearing []
I do not wish to request an administrative hearing
and am submitting tlae Administrative Penalty of $500.00 []
Please submit payment of $500.00 to:
Gty o£ Elk River
AL-tn: City Clerk
13065 Orono Parkway
Elk River,/VLN 55330
Signature
Date
S:C~.ERK/LI(~NSE/LIQUOR/COMI~LIANCE/E LK BOWUDOC
Elk River Bowl, Inc.
13161 Hwy. 10W
PO. Box 352
Elk River, MN 55330
(763)441-7050
Fax: (763)441-7051
March 10, 2004
To the City of Elk River;
We have chosen not to request an administrative hearing or pay the Administrative Penalty of
$500.00. We feel that this penalty is unfair. We have 3 reasons that we do not think this penalty
is our responsibility.
First of all, Charles Wells the employee who sold the alcohol illegally had gone through alcohol
awareness training in the fall of 2002. We also did alcohol awareness in the fall of 2003 but
Charles Wells was not working tbr us at the time. He was a temporary employee who we let go
on the night of the incident, because of his illegal sale of alcohol.
Secondly, Elk River Bowl has been a law abiding member of the Elk River Business community
since 1985. In all of those years we had passed multiple compliance checks tbr both alcohol and
cigarettes. We are very pro~essive in our training of all employees in proper sales of alcohol
and cigarettes with among other things, hosting training in the fall of each year. We do not feel
that we should be punished for having one employee in 19 years misread a drivers license.
The third reason is that not even the state of Minnesota places blame on employers who have an
employee make a mistake. The employee is supposed to take the initiative to make sure he obeys
the laws of the state.
If you have any questions or need additional information, please feel free to contact me at
441-7050.
,/ / / /
Sin~rely,.t" / / / ,//
George E. Larson~
River
13065 Or0n0 Parkway
Eik River, MN >>~0
March 31, 2004
Elk Bow[
George Larson
13161 HJghway lid
Elk River, 5'D-/ 55330
Certified
Dear NEt. Larson:
On January, 28, 2004, the Elk River PoLice Department, in conjunction with the Sherburne Counw
Health Deparmqent, conducted an alcoho[ comphance check of all hcensed ~iquor esrabhsl~menrs m
the CiV of Elk ~ver. During the comphance check at the Elk Bowl, one o[- your employees sold
alcohol ro a person under Ce age of 21 years.
I received your letter dated March 10, 2004, staung that you ~d not xvish to request an adminis~afive
he:mag or pay fl~e ad~nistradve penal~ of $500.00.
Sectson 340A.415 o~ N'~nesota Statute states, O, ~/im/iS~ th:~t the/i~'em'e or~e~it holder h~za' .... (~)~izi/e:t
~'vcffonJ' 14.57 W 74.69 ( 3e acz~iniyrrc~rz've procedare act."
Secuon 6-93 of flae Ci~ off Elk ~ver Ordnance states, '"5/g scz3 (beer, wine, or liquor in or~Fo,z cz~5~
tn the case of kbeN v. Ci~ of Shakopee, 1947, 224 ~nn. 262, 28 N.W.2d 642, it was stated, "The
5~/;; (a &'emee com'd rise ,o ~2her 3~m ;he ;e~' q'3e /aw under whit3 &'eme was issued, aaa'/i;'en~'ee cw:ep;s 3e
Payment of the 5500.00 penalv amount to the Ci~ of, Elk ~ver is due in this office no later than
Aprii 7, 2004.
Sincerely,
?n Schrmdt
City, Clerk
cc: Jef£Beahen, PoLice Chief
Phone: 763.635.1000
Fax: 763.635 10%
www. ci.elk-river, mr/. us
§ 6-66 ZI..~ I~'V'~t:?, CODE
S ....... licenses ~~Sec~ 6-71 Suspension or revocation; fines
action by the council upon the licensee's affidavit
that the original has been lost and upon payment
of a fee in the amount established by resolution
for issuance of the duplicate..MI 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 inte,micating
liquor or 8.2 percent malt liquor license of any
establishment proposed to be newly constructed
that is not under construction and exhibiting
satisfactory progress toward complet/on 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)
percent malt liquor and may levy. a fi_ne 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
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)),
Sec. 6-69. Posting.
ALl licensees under this di¼sion thai1 conspic-
uously post theft* licenses in theft* 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 :he license and shah
contain such information as is required by the city
clerk. The council for good and sufficient cause
may wmve this rime requirement.
(Ord. _¥0. 2000-01. § !($00.08(T)(~)), 3-13-2000)
(2) Been convicted of a wiolation of the provi-
sions of any law, ordinance or regulation
relating to the exercise of any fight granted
by such license.
(b) Revocation of erroneously issued Zicense.
A_ny 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
shall 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 Mirmesota
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 shall be conducted upon
writmen notice to the licensee served in person or
by certified mall not less than ten and not more
than 30 days prior to the hearing date, stating the
time, place, and purpose thereof.
(id) 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 reg-ulations. These standards shall apply to
all licenses ==ranted under this division. The pen-
alties set forth in this subsection are presumed to
be appropriate for everT case: however, the coun-
cil may deviate from these penalties in any case in
which the council finds that there exis~ substan-
tial reasons ibr such deviation, such as, by way of
CD6:12
ALCOHOLIC BEVEi:LkGES § 6-71
example and not of limitation, a licensee's effo~s
in cooperation with the state or city. to prevent the
sale of alcohol to minors. W'hen deviating f~om
these s~andards, the council shall provide written
findings that suppoCc the penalty, selected.
T~e 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 activ/ty.
2. Sale of alcoholic beverages while
the license is under suspen-
sion.
3. Sale of hnto,,dcatfng Liquor where
the license is only for sale of 3.fi
percent malt liquor.
b. The following violations shall pre-
sumptively be penalized according
to the violation g-ri~'d in subsection
fd)(l/c of tls section, subject to the
provisions of th/s section:
Sale of alcoholic beverages to
an underage person.
Sale of alcoholic beverages to
an obviously intoxicated per-
son.
After-hours sale/display/con-
sumption of alcoholic bever-
ages.
I~egal gambling on licensed pre-
raises.
A_ny 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:
Presurnnt~ve Penaft¥
Vurnber of V~oZations During 24-MontA Period
~irst 'violation
Second violation
Third violation
$500.00 cb-il penalty
5-day suspension and $1,000.00 civil penalty to be
,aid before the expiration of the susnension
10-day suspension and $2,000.00 civil penalty to be
paid before the expiration of the susnension
Fourth violation : License revocation
(2)
For the purposes of this section regardSng
penalties for violations relevant to 12cons-
Lng, the number ofv/olations 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 vfolation
occurred, that violation shall be removed
from consideration for purposes of apply-
Lng the grid to determine penalties. Noth-
ing Ln this subsecmon shah restrict the
discretion of the council with regard to
determination of the appropriate penalty
for a_ny 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-
ing in the manner provided in this chap-
ter.
(e) J~etzzrn o/ reuo~e~- ~cense ~o c~ty. Whenever
any license issued for any purpose under this
division is revoked for any reason whatever, the
licensee shall fomhwith return such license to the
CD6:13
§ 6-71 ELK R1ArER 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, ]v~inn. Stats. § 340A. 415.
Secs. 6-72--6-90. Reserved.
DIVISION 3. OPERATIONAL RESTRICTIONS
A_N'D 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 ~icensee, Minn.
Sta~s. § 340A. 501.
Sec. 6-93. Responsibility of licensee for sales
by employees.
Any sale of beer, wine, or liquor in or from any
premises hcensed 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 be~veen 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 hquor 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 h00 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 licensee 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
hcense shall be issued for a one-year period run-
ning from July 1 to June 30 and shall be subject to
all provisions of this chapter.
(d) Intoxicating liquor, off-safe. No sale of in-
toxicating liquor may be made by an off-sale
hcensee 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 o/~ 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)), (800.364 3-13-
2000)
State law reference--Hours and days of sale. Mitre.
Stats. § 340A. 504.
CD6:14