4.3. SR 08-03-2020
Request for Action
To Item Number
Mayor and City Council 4.3
Agenda Section Meeting Date Prepared by
Consent August 3, 2020 Tina Allard, City Clerk
Item Description Reviewed by
Ordinance Amendment: Open Containers in Public Ron Nierenhausen, Police Chief
Places
Reviewed by
Cal Portner, City Administrator
Action Requested
Approve, by motion, an ordinance amendment to Chapter 6, Section 3 regarding consumption of alcohol
in public places.
Background/Discussion
At the June 15, 2020, meeting, Council discussed open containers in public places.
Council consensus was to remove the language and to allow open containers in public places consistent with
state law.
Financial Impact
N/A
Attachments
June 15, 2020 staff report & minutes
LMC Information
Ordinance Amendment
The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional service, and
community engagement that encourages and inspires prosperity
Request for Action
To
Item Number
Mayor and City Council
9.4
Agenda Section
Meeting Date
Prepared by
Work Session
June 15, 2020
Tina Allard, City Clerk on behalf of Ron
Nierenhausen, Police Chief
Item Description
Reviewed by
Open Containers in Public Places
Cal Portner, City Administrator
Reviewed by
Action Requested
Council discussion and staff direction on open containers throughout public areas of Elk River.
Background/Discussion
Section 6-3 of the Elk River City Code states the following:
6.3 Consumption in public place.
No person shall consume liquor on a public highway or public place.
State law only addresses open containers in vehicles, which is not allowed.
Practice has been to allow alcohol and open containers in city parks. Aegir Brewing Company would like
open containers allowed in the downtown.
General information nationwide on where allowed: https://www.wideopeneats.com/states-can-drink-
ublic
Liability issues could be a concern. Staff is checking into this and hopes to have more information before
the meeting on Monday.
Financial Impact
N/A
Attachments
■ None
The Elk River Vision
A welcoming community with revolutionary and spirzted resourcefulness, exceptional service, and
community engagement that encourages and inspires prosperzty
City Council Minutes
June 15, 2020
Page 12
important because there are security issues with all the electronics and having the
vehicles stored outside.
Council consensus was to keep moving forward on this project.
Mr. Schwartzman explained the goal is to work with the city attorney and create a
Request for Proposal for a construction manager to get that person on board. He
noted BKV Group is available to assist in the process however needed. He stated
once the construction manager is on board that person should review the figures and
come back to the Council.
9.4 Open Containers in Public Places
Chief Nierenhausen presented the staff report. He indicated upon research he
realized the city has an archaic ordinance in place Section 6-3 that states "no person
shall consume liquor on a public highway or public place." He noted a park or
parking lot would constitute a public place. He stated there is no state statute
prohibiting liquor in public places and he conferred with the city attorney as well. He
explained under current liquor licensing laws, on -sale establishments are prohibited
from allowing liquor to leave their designated premises; however, those with off -sale
licenses can sell the liquor in a sealed container for off -sale consumption and if the
current ordinance is eliminated the patron could consume the liquor in public place.
He stated he does not have a preference either way.
Mr. Portner indicated instances of people consuming alcohol on public property
exist and now that law enforcement is aware of the ordinance it will have to be
enforced.
The Council expressed concerns with enforcing the ordinance now when people
have been consuming alcohol in public places without issue for a while.
Council consensus was to eliminate the ordinance prohibiting alcohol consumption
in public places.
9.5 Multipurpose Facility Staffing and Fees
Mr. Benoit and Mr. Dalton presented proposed staffing and fees. Mr. Dalton
indicated staff is looking for Council consensus on the information presented so they
can begin marketing.
Councilmember Wagner stated the last presentation showed the facility operating in
a deficit, but the new presentation shows different numbers. She questioned what
CM means in the presentation. Mr. Benoit indicated CM stands for Councilmember
and represents feedback from the last meeting.
Councilmember Westgaard questioned if staff is referring to the feedback he
provided at the last meeting because he is only one voice and the numbers presented
are not his and he would prefer if they weren't presented as such.
p 0 V I R I 1 er
NATURE
From: Jelen, Julie <jjelen@lmc.org>
Sent: Monday, June 15, 2020 4:12 PM
To: Allard, Tina <tallard@ElkRiverMN.gov>
Subject: RE: \[EXTERNAL\] FW: Research Question Submission
Yes, makes sense. I know of cities that will allow to walk with an open container during events, but has it
specifically laid out for hours and days of week allowed to match the event. Another city cordoned off
the area where open containers were allowed. Sounds like a tweak to your current ordinance may be
the solution.
Julie Jelen | Loss Control Consultant
Phone: (651) 268-6992 | Mobile: (612) 723-9217
jjelen@lmc.org
From: Allard, Tina <tallard@ElkRiverMN.gov>
Sent: Monday, June 15, 2020 4:04 PM
To: Jelen, Julie <jjelen@lmc.org>
Subject: RE: \[EXTERNAL\] FW: Research Question Submission
Hi Julie:
We have two businesses in our downtown that sell liquor as offsale. They say when a customer
leaves with an offsale product and opens a container they are no longer responsible. Which is fine
and I believe correct, but they want to allow and promote to the public that open containers are
allowed in public places. When there are events scheduled downtown these businesses want to sell
the alcohol to public attending. Kind of like a Key West or New Orleans situation.
Make sense?
Tina Allard
City of Elk River – City Clerk
13065 Orono Parkway, Elk River, MN 55330
763.635.1003 ElkRiverMN.gov
From: Jelen, Julie <jjelen@lmc.org>
Sent: Monday, June 15, 2020 3:53 PM
To: Allard, Tina <tallard@ElkRiverMN.gov>
Subject: \[EXTERNAL\] FW: Research Question Submission
Hi Tina –
The short answer is there’s no liability to the city if you’re not serving/selling it. The ordinance is more
the enforcement part.
I also ran this question by Chris Smith, our Risk Management Attorney. The big question is what kind of
business is this? If the business is selling the alcohol, it cannot allow alcohol to be taken off the
premises. Minn. Stat. Section 340A.410 (https://www.revisor.mn.gov/statutes/cite/340A.410):
Subd. 7.License limited to space specified.
A licensing authority may issue a retail alcoholic beverage license only for a space that
is compact and contiguous. A retail alcoholic beverage license is only effective for the
licensed premises specified in the approved license application.
There are some limited exceptions that would not appear to apply here, e.g., auto racing tracks, some
museums, arenas, etc.
Also, liquor liability insurance typically applies only to the licensed premises. So if a bar or restaurant
allowed alcohol to be taken off-premises, it may lose the protection of its liability insurance.
If people are bringing and walking around with their own liquor to a park or some other location and
there’s no sale, that would be allowed unless there is an ordinance prohibiting open consumption which
appears to be the case here in some locations. The city could change its ordinance.
From a coverage perspective, it’s hard to speculate on hypothetical facts. But the city has coverage for
all claims unless there is an exception that says there is no coverage. Liquor sales are excluded under
the city’s LMCIT coverage. But as long as the city’s conduct does not involve the sale of alcohol, there
should be coverage.
For example, if people were walking around with their own alcohol (not sold by the city) in violation of a
city ordinance and the city did nothing to stop such conduct and someone got injured and the city was
sued, alleging the city’s negligence caused the injury, LMCIT would defend the city. I should note that if
someone sued the city for injunctive relief, i.e., to stop the city from doing something or force the city to
do something, and did not ask for damages, that might not be a covered claim. Coverage for most
claims is triggered by a plaintiff asking for damages.
Hope this answers your question. Reach out to me if you have additional questions.
Julie Jelen | Loss Control Consultant
Phone: (651) 268-6992 | Mobile: (612) 723-9217
jjelen@lmc.org
From: Glass, Jacob <JGlass@lmc.org>
Sent: Monday, June 15, 2020 12:44 PM
To: Jelen, Julie <jjelen@lmc.org>
Subject: FW: Research Question Submission
Research Question Submission
Thank you for submitting a research question to the League of Minnesota Cities.
The League's Research Staff will begin working on it as soon as possible.
You submitted the following information:
Question submitted:
Hi: Our Council will be discussing whether to allow alcohol/open containers in public places. Our code
says it is not allowed. We have a downtown business who wants it. Past practice has been to allow in
parks. Can you provide me with information on the liability of the city? If allowed, would this be
covered under our insurance? Or would we be allowed to add it for a certain cost? Thanks, Tina
Strikethroughs to be removed
Underlines to be added
Ordinance 20 - ____
An Ordinance Amending Chapter, 6, Section 3, Consumption in Public Place of the
City of Elk River, Minnesota, City Code
The City Council of the City of Elk River does hereby ordain as follows:
SECTION 1. That § 6.3, Consumption in public place of the City of Elk River Code of Ordinances
shall be deleted:
No person shall consume liquor on a public highway or public place.
SECTION 2. That this ordinance shall take effect upon adoption and be published as provided by
law.
Passed and adopted by the City Council of the City of Elk River this 3rd day of August, 2020.
______________________________
John J. Dietz, Mayor
ATTEST:
_______________________________
Tina Allard, City Clerk
Last Updated January 2019