HomeMy WebLinkAbout20081215 - VII-02VII-2
FLUEGEL LAW FIRM P.A.
DonaEd J. Flue~el * Attorneys At Law
Daniel J. Flueget ] 303 South Frontage Road, Suite ~
Sean R. McCarthy Hastings, MN 55033-2477
Memorandum
To: Honorable Mayor and City Council
From: Daniel J. Fluegel, City Attorne,
Date: December 2, 2008
Subject: Wal-Mart Liquor -Illegal Alcohol Sale
Telephone 65 {-438-977 i
Fax 651-43S-y77~
On October 28, 2008, the Hastings Police Department conducted an alcohol compliance check at
Wal-Mart Liquor located at 1752 North Frontage Road in the City of'Hastings. An employee of
Vdal-Mart Liquor sold alcohol to an underage individual on that date. 1n addition, on September 12,
2007, Vv`al-Mart Liquor had a prior alcohol compliance check failure. ?he Hastings City Council
imposed a $300A0 civil penalty for that prior violation which ~~:as paid.
Under the guidelines adopted by the Hastings City Council (Resolution 12-3-OQ enclosed), the City
Council will genera}ly impose a minimum $750.00 penalty and atwo-dav license suspension
scheduled on a Thursday and Friday selected by the Council for a second illegal liquor sale violation
in any 24-month period. The City guidelines require that liquor license holders with two or more
violations within any 24-month period shall have a hearing before the City Council before any
license suspension shall be imposed. Resolution 12-3-00 makes clear the City Council reserves the
right to deviate from the guidelines based upon the circumstances of each case.
I request that the City Counci] conduct a briel~hearing at the December I ~, 2008 regular City Council
meeting. Wal-Mart Liquor should be given an opportunity to address the Council about the violation
and the penalty to be imposed. If WaI-Ma1-t Liquor wants to present witnesses to testify on its behalf,
that should be pern~itted. After the CourrciI has heard the evidence. it needs to make a decision on
what penalty to impose. "The Council's final decision should be in the form of a written Resolution.
I am enclosing a draft Resolution prepared for the Council which includes a penalty based on the
presumptive penalties in Resolution 12-3-00. If the Council decides to irnpose that presumptive
penalty, the dates of the license suspension will need to be identified in the Resolution along with
the name of any individuals that appear on behalf of Wal-Mart Liquor. If a significantly different
penalty- is to be imposed. I suggest that the Council direct staff to prepare a Resolution consistent
with the Council's decision.
* Alto admitted to prictice in Wisconsin
Because Wal-Mart Liquor has the ability to request specific hearing requirements under the
Minnesota Administrative Procedures Act, I have asked that Melanie Mesko Lee have at the abiliri
to record the content ofthe hearing. Assuming Wat-Mart Liquor does not dispute the essential facts
of the illega! sale, the hearing will most likely then be limited to only discussion regarding an
appropriate penalty. To the extent Wal-Mart Liquor disputes that the illegal sale occurred, a more
significant hearing will need to be conducted and I will be prepared to advise the Council in that
regard.
As always. please do not hesitate to contact me if you have any questions.
DAN/ham
Enclosures: Letter to Wal-Mart Liquor
Resolution I2-3-00
Proposed Findings and Decision
Donald J. Fluegel
Daniel J. Floegel
Scan R. McCarthy
FLITEGEL LAW FIRM P.A.
Attorneys At Law
1303 South Frontage Road, Suite 5
Hastings, MN 55033-2477
December 2, 2008
Wal-Mart Supercenter # 1472
r'lttention: Ann
1752 North Frontage Road
Hastings MN 55033
Re: A{co{ro{ Cornp{iatrce Cl:eck Fai{tire
Dear Business Owner:
Telephone 651-435-9777
Fax 651-435-9775
l am writing to you regarding the recent failure of an alcohol compliance cheek at Wal-Mart
Supercenter #1472 ("Wal-Mart Liquorj. As you know, on October 28, 2008, the Hastings Police
Department conducted an alcohol compliance check. An employee of Wal-Mart Liquor sold alcohol
to an underage individual on that date.
Also, on September ] 2, 2007, your establishment sold alcohol to an underage individual The
Hastings City Council imposed a $300.00 fine for that prior violation which was paid.
tinder the guidelines adopted by the Hastings City Council (Resolution ] 2-3-00, enclosed}, the City
Council will generally impose a minimum $750.00 civil penalt~~ and atwo-day license suspension
scheduled on a Thursday and Friday selected by the Council for a second illegal liquor sale violation
in any 24-month period. The City guidelines require that liquor license holders with two or more
violations within any 24-month period shall have a hearing before the City Council before any
license suspension shall be imposed. Please note that the Hastings City Council reserves the right
to deviate from these guidelines based upon the circumstances of each case.
The sale of alcohol to an underage individual is in violation of both Hastings City Code Chapter
111.13 and Minnesota Statues ~ 340A.503. Therefore, the City Council will consider action
it~iposing a civil penalty and license suspension on Wal-Mart Liquor at its December I 5.2008 City
Council meeting. The City Council meeting will be held at 7:00 p.m. on December 15, 2008 at
Hastings City Hall, 101-=1th Street East, Hastings Minnesota. You will have an opportunity to
address the Council and present any testimony you feel relevant. The Council will then detem~ine
if, or what penalty, will be imposed.
As the licensee, you may demand a hearing be conducted under Sections 14.57 to 14.69 of the
Minnesota Administrative Procedures Act. Please be aware that the civil penalties may include a
financial penalty of up to $2.000.00, a suspension of the license up to a maximum of 60-days or any
combination of the t~vo.
Also admitted to practice in Wisconsin
If you have any c}uesiions, you may contact me.
Very truly yours,
FL UEGEL LA W FIRM P.A.
aniel J. Fluegel
City Attorney
DAN/ham
Enclosure
ec Dave Osberg, City Administrator
Melanie Mesko Lee, Assistant City Administrator/City Clerk
Michael C. McMenomy, Chief of Police
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HASTINGS CITY COUNCIL
RESOL UTION NO. 12-3-QO
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HASTINGS
ESTABLISHING GUIDELINES FOR CIVIL PENALTIES FOR ILLEGAL LIQUOR
SALES IN THE CITY OF HASTINGS
DECEMBER 4, 2000
Council member Johnson introduced the following Resolution and a second was made by
Council member Blueness and moved its adoption:
WHEREAS, Minnesota Statutes Section 340A.503 and Hastings City Code Chapter 3.OI
provide that it is a gross misdemeanor to sell, barter, furnish or give alcoholic beverages to a person
under twenty-one years of age;
WHEREAS, the City conducts regular compliance checks to insure that those establishments
holding municipal liquor licenses in the City of Hastings are in compliance with this State Statute
and City Code. In the event that a liquor license establishment is proved to have made an illegal
sale, Minnesota Statutes Section 340A.415 authorizes the City Council to revoke the license or
permit, suspend the license or permit for up to 60 days, impose a civil penalty of up to $2,000 for
each viola~i;,r~ or it~ipose a~iy wmbination of these sanctions; and
WHEREAS, the Hastings City Council believes it to be in the public interest to establish
guidelines for civil penalties to be imposed for illegal liquor sales in the City of Hastings; and
WHEREAS, the City Council also believes these guidelines could be deviated from if the
City Council deems it to be appropriate in a given case.
NOW, THEREFORE, BE IT RESOLVED by the Hastings City Council as follows:
n
~ ~
A. The Hastings City Council establishes the following guidelines for civil penalties
to be imposed for illegal liquor sales in the City of Hastings. The Hastings City Council reserves
the right to deviate from these guidelines based upon the circumstances of each case. The following
designated civil penalties are in addition to any criminal penalties that may be imposed by State law.
1. First Offense: Three hundred dollar civil penalty and a letter outlining the
civil penalties that could be imposed if further violations occur. Instead of
paying the three hundred dollar civil penalty, the licensee can purchase,
install and use in the licensed establishment, a driver's license/identification
card reading device. Proof of installation must be provided to the City Clerk
within 30 days after notice of the violation has been sent to the license holder
by the City Clerk.
2. Second Offense Within Any 24 Month Period: Seven hundred and f fty
dollar civil penalty and a two day license suspension which will occur on a
Thursday and Friday selected by the Council.
3. Third Offense Within Anv 24 Month Period: One thousand dollar civil
penalty and a five day license suspension which will include one consecutive
Friday and Saturday selected by the Council.
4. Fourth Offense Within Any 24 Month Period: Two thousand dollar civil
penalty and revocation of the Iiquor Iicense.
B. The City Council retains the right to impose a penalty different from those contained
in this Resolution if the Council deems the circumstances warrant it.
C. In the event of a new owner, the prior owner's violations, if any, will not roll-over
to the new owner. The new owner will start out as having no first violations. If the new owner is
related to the previous owner by blood, marriage or partnership of any type, the previous offenses
will carry over to the new owner.
D. When a first illegal sale is alleged to have occurred; documentation ofEhe iilegaI sale
shall be sent to the City Council by either the Chief of Police or the City Administrator, together with
the proposed penalty called for by these guidelines. If no Councihnember objects to the proposed
penalty within 7 days after the information is after the information is mailed to the City Council, then
City staff will proceed to inform the Iiquor license holder of the penalties to be imposed pursuant
to these guidelines. If a Councilmember objects to the proposed penalties, the Councilmember shall
notify the City Administrator and the illegal liquor sale matter shall be placed on the next available
City Council agenda for Council discussion.
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2
E. Upon proof that a first illegal liquor sale has occurred, the Chief of Police or the City
Clerk shall issue a notice to the holder of the liquor license. That notice shall be given in person or
by mail to the holder of the liquor license. The notice must contain the date, time and nature of the
offense, the amount of the scheduled civil penalty. This notice must also provide that the liquor
license holder can appeal the imposition of this penalty to the Hastings City Council by delivering
to the City Clerk a written notice of appeal within I O days of the date of the notice. Failure to timely
pay the penalty shall be grounds for additional monetary penalties or license suspension or
revocation.
F. If the violation is a second or subsequent violation within a 24 month period, a
hearing shall be held before the City Council before any license suspension or revocation shall be
imposed. The license holder shall be given notice of the hearing at least 10 days before the date of
the hearing. The notice shall state the time, place and the nature of the charges.
Council member Johnson made a second to the foregoing Resolution.
Upon being put to a vote, the following Councilmembers voted in favor of this Resolution:
Councilmegnber Blueness, Simacek, Johnson, Hicks, Nbratzka & Mayor Werner
Councilmanber Yandrasits absent
The following Councihnembers voted in opposition to this Resolution:
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WHERE UPON, the Mayor declared the Resolution to be duly passed.
CITY OF HASTINGS
By:
Michael D. Werner, Its Mayor
ATTEST.•
~~G~
Melanie Mesko
w
CITY OF HASTINGS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 12- -08
A RESOLUTION MAKING FINDINGS, CONCLUSION AND DECISION IMPOSING
CIVIL PENALTY UPON WAL-MART LIQUOR
BE IT RESOLVED, by the City Council of the City of Hastings, Minnesota, as follows:
WHEREAS, a hearing was held by the City Council pursuant to Hastings City Code
Section 111.10, and Minnesota Statute § 340A.415 on December 15, 2008, at which testimony
and written evidence were received; and
WHEREAS, was present and was afforded the
opportunity to and did participate in the hearing on behalf of Wal-Mart Liquor.
NOW, THEREFORE, based upon the evidence and testimony the City Council of the
City of Hastings, makes the following:
FINDINGS
1. Wal-Mart Supercenter #1742 (herein "Wal-Mart Liquor"), 1752 North Frontage
Road, Hastings, Mimlesota holds an off-sale intoxicating liquor license.
2. On October 28, 2008, Kevin Engstrom, an employee of Wal-Mart Liquor was
observed by a Hastings Police Officer to sell an alcoholic beverage to an underage
customer, who was an undercover person authorized by the City of Hastings to
assist with compliance checks of alcohol license holders.
3. Kevin Engstrom is subject to prosecution in Dakota County District Court for
selling alcohol to a person under the age of 2I in violation of Minnesota Statues §
340A.503, Subd. 2(1).
4. Representatives of Wal-Mart Liquor did not contest the written materials and
testimony presented to the City Council.
CONCLUSION
Wal-Mart Liquor sold alcoholic beverage to a person under the age of 21 in violation of
Minnesota Statutes § 340.503, Subd. 2(1) and Hastings City Code Section 111.13(B)(8).
ORDER
IT IS HEREBY ORDERED, pursuant to Minn. Stat. § 340A.415 and Hastings City Code
Section 111.10, that Wal-Mart Liquor is subject to the following sanctions:
(1) A $750.00 civil penalty, and
(2) A suspension of the license for two days, on
The penalty must be paid within 30 days of the date of this Order. Failure to comply with this
order will subject the licensee to further sanctions.
By order of the City Council of the City of Hastings, Minnesota, , 2009.
Pau] J. Hicks, Mayor
ATTEST:
Melanie Mesko Lee, City Clerk