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Home My WebLink AboutVIII-14 Imposing Sanctions Upon Tobacco License Holder Westview Smokes City Council Memorandum To: Mayor Fasbender & City Councilmembers From: Kelly Murtaugh, Assistant City Administrator Date: January 6, 2025 Item: Impose Sanctions Upon Westview Smokes Council Action Requested: Consider attached resolution approving the following civil penalty on Westview Smokes, 1355 S. Frontage Road #420, Hastings, Minnesota 55033: -Tobacco License: $300.00 fine. Background Information: On December 12, 2024, the Hastings Police Department conducted a tobacco compliance check at Westview Smokes located at 1355 S. Frontage Road #420, Hastings, Minnesota 55033. On that date, an employee of Westview Smokes sold tobacco to an underage purchaser cooperating with the Hastings Police Department. This is Westview Smokes’ first violation in a 36-month period. Pursuant to Minnesota Statutes, Section 461.12 and City Code Section 112.12, the presumptive civil penalty for a first violation is a $300.00 fine. On December 23, 2024, notice of the penalty and opportunity to request a hearing before City Council was sent to the licensee. Financial Impact: N/A Advisory Commission Discussion: N/A Council Committee Discussion: N/A Attachments: • Hastings Police Report #24-001789 • Hastings City Code Section 112.12 Hearings and Appeals • Minnesota Statute 461.12 Municipal License of Tobacco, Tobacco-Related Devices • Resolution Imposing Sanctions Upon Tobacco License Holder Westview Smokes VIII-14 VIII-14 VIII-14 VIII-14 VIII-14 112.12 Hearings And Appeals 1. Notice. Upon discovery of a suspected violation, the alleged violator shall be issued, either personally or by mail, a citation that sets forth the alleged violation and penalty and which shall inform the alleged violator of his or her right to be heard on the accusation. The administrative penalties for illegal sales of licensed products contained in M.S. § 461.12, as it may be amended from time to time, shall apply unless the City Council determines that a more severe administrative penalty, suspension or revocation shall be imposed. 2. Generally. Following receipt of a notice of denial issued under this chapter or notice of violation and penalty issued under this section, or a notice of revocation, an applicant or license holder may request a hearing before the City Council. A request for a hearing shall be made by the applicant or license holder in writing and filed with the City Clerk within 10 days of the mailing of the notice of denial or alleged violation. Following receipt of a written request for hearing, the applicant or license holder shall be afforded an opportunity for a hearing before the City Council. 3. Findings. If after the hearing, the applicant is found ineligible for a license or is found to have violated this chapter, the City Council may affirm the denial, impose a fine, issue a suspension or revocation, or impose any combination thereof. The decision shall be in writing and shall set forth the reasons for the findings of the City Council. Copies shall be provided to the applicant or license holder. Likewise, if the City Council finds that no violation occurred or finds grounds for not imposing any penalty, the findings shall be recorded and a copy provided to the applicant or license holder. 4. Decision. If the City Council determines that a violation of this chapter did occur, that decision, along with the City Council’s reasons for finding a violation and the penalty to be imposed under this chapter, shall be recorded in writing, a copy of which shall be provided to the accused violator. Likewise, if the hearing officer finds that no violation occurred or finds grounds for not imposing any penalty, the findings shall be recorded and a copy provided to the acquitted accused violator. 5. Default. If the applicant or license holder has been provided written notice of the denial or violation and if no request for a hearing is filed within the 10-day period, then the denial, penalty, suspension, or revocation imposed pursuant to this section shall take effect immediately by default. The City Clerk shall mail the notice of the denial, fine, suspension, or revocation to the applicant or license holder. 6. Hearings. If a person accused of violating this section so requests, a hearing shall be scheduled, the time and place of which shall be provided to the accused violator. 7. Hearing Officer. The hearing shall be held before the City Council and shall be open to the public. 8. Appeals. Any appeal of the decision of the City Council must be filed with the District Court within 10 days of the mailing of the City Council’s decision. 9. Misdemeanor Prosecution. Nothing in this section shall prohibit the city from seeking prosecution as a misdemeanor for any alleged violation of this chapter by a person 21 years of age or older. If the city elects to seek misdemeanor prosecution, no administrative monetary penalty shall be imposed. If the city elects to seek misdemeanor prosecution, the city is not precluded from suspending or revoking the license of a licensee as provided by this chapter. 10. Continued Violation. Each violation, and every day in a violation occurs or continues, shall constitute a separate offense. (Prior Code, § 5.34) Penalty, see § 10.99 HISTORY Amended by Ord. 2020-01, 3rd Series on 3/2/2020 VIII-14 461.12 MUNICIPAL LICENSE OF TOBACCO, TOBACCO-RELATED DEVICES, AND SIMILAR PRODUCTS. Subdivision 1.Authorization.A town board or the governing body of a home rule charter or statutory city may license and regulate the retail sale of tobacco, tobacco-related devices, and electronic delivery devices as defined in section 609.685, subdivision 1, and nicotine and lobelia delivery products as described in section 609.6855, and establish a license fee for sales to recover the estimated cost of enforcing this chapter. The county board shall license and regulate the sale of tobacco, tobacco-related devices, electronic delivery devices, and nicotine and lobelia products in unorganized territory of the county except on the State Fairgrounds and in a town or a home rule charter or statutory city if the town or city does not license and regulate retail sales of tobacco, tobacco-related devices, electronic delivery devices, and nicotine and lobelia delivery products. The State Agricultural Society shall license and regulate the sale of tobacco, tobacco-related devices, electronic delivery devices, and nicotine and lobelia delivery products on the State Fairgrounds. Retail establishments licensed by a town or city to sell tobacco, tobacco-related devices, electronic delivery devices, and nicotine and lobelia delivery products are not required to obtain a second license for the same location under the licensing ordinance of the county. Subd. 2.Administrative penalties for sales and furnishing; licensees.If a licensee or employee of a licensee sells, gives, or otherwise furnishes tobacco, tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery products to a person under the age of 21 years, or violates any other provision of this chapter, the licensee shall be charged an administrative penalty of $300 for the first violation. An administrative penalty of $600 must be imposed for a second violation at the same location within 36 months after the initial violation. For a third or any subsequent violation at the same location within 36 months after the initial violation, an administrative penalty of $1,000 must be imposed, and the licensee's authority to sell tobacco, tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery products at that location must be suspended for not less than seven days and may be revoked. No suspension, revocation, or other penalty may take effect until the licensee has received notice, served personally or by mail, of the alleged violation and an opportunity for a hearing before a person authorized by the licensing authority to conduct the hearing. A decision that a violation has occurred must be in writing. Subd. 2a.Penalties for sales of certain products; licensees.(a) A licensee's authority to sell tobacco, tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery products at that location must be suspended for not less than seven days and may be revoked if the licensee: (1) holds a license or registration issued pursuant to chapter 342 or section 151.72, subdivision 5b, and the license or registration is revoked; (2) is convicted of an offense under section 151.72, subdivision 7; or (3) has been convicted under any other statute for the illegal sale of marijuana, cannabis flower, cannabis products, lower-potency hemp edibles, hemp-derived consumer products, or edible cannabinoid products and the sale took place on the premises of a business that sells tobacco, tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery products. (b) No suspension, revocation, or other penalty may take effect until the licensee has received notice, served personally or by mail, of the alleged violation and an opportunity for a hearing before a person authorized by the licensing authority to conduct the hearing. A decision that a violation has occurred must be in writing. Subd. 3.Administrative penalty for sales and furnishing; individuals.An individual who sells, gives, or otherwise furnishes tobacco, tobacco-related devices, electronic delivery devices, or nicotine or lobelia Official Publication of the State of Minnesota Revisor of Statutes 461.12MINNESOTA STATUTES 20231 VIII-14 delivery products to a person under the age of 21 years may be charged an administrative penalty of $50. No penalty may be imposed until the individual has received notice, served personally or by mail, of the alleged violation and an opportunity for a hearing before a person authorized by the licensing authority to conduct the hearing. A decision that a violation has occurred must be in writing. Subd. 4.Alternative penalties for use of false identification; persons under age 21.The licensing authority shall consult with interested persons, as applicable, including but not limited to educators, parents, guardians, persons under the age of 21 years, and representatives of the court system to develop alternative penalties for persons under the age of 21 years who purchase, or attempt to purchase, tobacco, tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery products using a driver's license, permit, Minnesota identification card, or any other type of false identification to misrepresent the person's age, in violation of section 609.685 or 609.6855. The licensing authority and the interested persons shall consider a variety of alternative civil penalties, including, but not limited to, tobacco-free education; tobacco cessation programs; notice to schools and parents or guardians; community service; and court diversion programs. Alternative civil penalties developed under this subdivision shall not include fines or monetary penalties. Subd. 5.Compliance checks.A licensing authority shall conduct unannounced compliance checks at least once each calendar year at each location where tobacco, tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery products are sold to test compliance with sections 609.685 and 609.6855. Compliance checks conducted under this subdivision must involve persons at least 17 years of age, but under the age of 21, who, with the prior written consent of a parent or guardian if the person is under the age of 18, attempt to purchase tobacco, tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery products under the direct supervision of a law enforcement officer or an employee of the licensing authority. The age requirements for persons participating in compliance checks under this subdivision shall not affect the age requirements in federal law for persons participating in federally required compliance checks of these locations. Subd. 6.Defense.It is an affirmative defense to the charge of selling tobacco, tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery products to a person under the age of 21 years in violation of subdivision 2 or 3 that the licensee or individual making the sale relied in good faith upon proof of age as described in section 340A.503, subdivision 6. Subd. 7.Judicial review.Any person aggrieved by a decision under subdivision 2 or 3 may have the decision reviewed in the district court in the same manner and procedure as provided in section 462.361. Subd. 8.Notice to commissioner.The licensing authority under this section shall, within 30 days of the issuance of a license, inform the commissioner of revenue of the licensee's name, address, trade name, and the effective and expiration dates of the license. The commissioner of revenue must also be informed of a license renewal, transfer, cancellation, suspension, or revocation during the license period. History: 1941 c 242 s 3; 1941 c 405 s 3; 1951 c 382 s 1; Ex1959 c 73 s 2; 1973 c 123 art 5 s 7; 1982 c 572 s 2; 1997 c 227 s 4; 1Sp2001 c 5 art 7 s 63; 2010 c 255 s 7; 2010 c 305 s 4-9; 2014 c 291 art 6 s 28; 2020 c 88 s 4-8; 2023 c 63 art 6 s 53 Official Publication of the State of Minnesota Revisor of Statutes 2MINNESOTA STATUTES 2023461.12 VIII-14 1 City of Hastings Dakota County, Minnesota RESOLUTION NO. _____ RESOLUTION IMPOSING SANCTIONS UPON TOBACCO LICENSE HOLDER WESTVIEW SMOKES WHEREAS, state law authorizes a city council to impose sanctions upon the holder of a tobacco license who has failed to comply with an applicable statute, upon a hearing duly noticed, and the opportunity for the license holder to be heard. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Hastings, Minnesota, as follows: FINDINGS A. On December 12, 2024, the Hastings Police Department conducted a tobacco compliance check at Westview Smokes located at 1355 S. Frontage Road #420, Hastings, Minnesota 55033. On that date, an employee of Westview Smokes sold tobacco to an underage purchaser cooperating with the Hastings Police Department. This is Westview Smokes’ first violation in a 36-month period. B. The Police reports from the December 12, 2024, incident are attached and stipulated into evidence to support the sanctions imposed herein. C. Notice of the violation was duly given to the license holder by personal service or by mail for the premises at 1355 S Frontage Road #420, Hastings, Minnesota 55033 on December 19, 2024, pursuant to Minnesota Statutes, Section 461.12, and City Code Section 112.12. D. In lieu of a hearing, the tobacco license holder has agreed to comply with the civil sanctions below and consents to the terms contained herein. E. The civil sanctions below are conditioned upon the Hastings City Council’s approval. If the City Council chooses to impose more severe sanctions, the license holder has the right to withdraw its consent. CONCLUSION A. Based upon the police report attached hereto, the City Council concludes that the tobacco license holder for the premises at 1355 S Frontage Road #420, Hastings, Minnesota 55033 (Westview Smokes) failed to comply with an applicable statute in that a tobacco product was sold to an underage person on December 12, 2024, in the licensed establishment. VIII-14 2 B. This incident constitutes the tobacco license holder’s first violation within a 36-month period. C. The mandatory statutory sanctions are a $300 fine. D. The following sanctions are imposed for the violation: 1. A $300 civil penalty is imposed against the license holder which must be paid by 4:30 p.m. on January 18, 2025. If not paid, the license will be suspended without notice to the licensee until the civil penalty is paid. 2. The license holder shall not have any tobacco-related violations for a period of one year of this resolution. 3. If the licensee fails to comply by the conditions and sanctions set forth in this resolution, the licensee may be required to attend a Council meeting for additional sanctions. Adopted by the City Council of the City of Hastings this 6th day of January 2025. Attest: Mary Fasbender, Mayor Kelly Murtaugh, City Clerk VIII-14 3 WESTVIEW SMOKES Signature of Representative Printed name of Representative DATE VIII-14