The URL can be used to link to this page

Home My WebLink About20100104 - VIII-C-4FLUEGEL LAW FIRM P.A. Donald J. Fluegel * AttOrneyS At Z,aW Daniel J. Flue,el 1303 South Frontage Road, Suite 5 Sean R. McCarthy Hastings, MN 55033-2477 William J. Marken Jr. To: Honorable Mayor and City Council From: Daniel J. FLuegel, City Attorne Date: December 30, 2009 Subject: Wal-Mart Liquor -Illegal Alcohol Sale CURRENT LICENSE VIOLATION. Telephone 651-438-9777 Fax 651-438-9775 On December 12, 2009, the Hastings Police Department conducted an alcohol compliance check at Wa1-Mart Liquor located at 1752 North Frontage Road in the City of Hastings. An employee of Wal-Mart Liquor sold alcohol to an underage individual on that date. PRIOR LICENSE VIOLATIONS. Wal-Mart Liquor had a prior alcohol compliance check failure within the past 24 months on October 28, 2068. Far that violation, the Hastings City Council imposed a $750.00 civil penalty and a 2-day License suspension to be served on a Thursday and Friday in 2009. In addition, Wal-Mart Liquor had another prior alcohol compliance check failure outside of the 24-month period on September 12, 2007. For that violation, the City Council imposed a $300.00 civil penalty. The current December L 2, 2009 compliance check failure constitutes a second time offense within a 24-month period. PROCUD URE. Under the guidelines adopted in City Code Section 111.10, the City Council adopted various presumptive penalties for alcohol compliance check failures. The preswnptive penalty for a second time offense within a~24-month period is a $1,500.00 civil penalty and a 6-day license suspensivn. A Council Member has requested that this matter be placed on the City Council Agenda for discussion and as such, staff has not entered into any written stipulation in lieu of a hearing. City Code and state law require that a licensee have an opportunity for a hearing before the City Council before any license suspension shall be imposed. The licensee has the option of either requesting a more formal administrative hearing before the Council, or the licensee can simply have a representative address the Council and provide any relevant information for the Council's consideration. Because Wa1-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 ability to record the content of the hearing. If Wal-Mart Liquor does not dispute the essential facts of the Also admitted to practice in Wisconsin illegal 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. COUNCIL ACTION. I request that the City Council conduct a brief hearing at the January 4, 2010 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 Wal-Mart Liquor wants to present witnesses to testify on its behalf or provide other evidence that should be permitted. Depending on the level of hearing requested by the licensee, I may submit additional evidence for the Council to consider or the Council may base its decision on the information contained in this Council packet plus any information provided by Wal-Mart. After the Council has heard the evidence, it needs to make a decision on what penalty to impose. The Council's 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 contained in the City Code. If the Council decides to impose 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 formal hearing is conducted or a different penalty is imposed, I suggest that the Council direct staff to prepare a Resolution consistent with the Council's decision and containing specific Findings of Fact to support its decision. A copy of the Resolution must be mailed to the licensee. As always, please do not hesitate to contact me if you have any questions. DAN/ham Enclosures: Letter and Hearing Notice to Wal-Mart Liquor Police Reports Proposed Findings and Decision FLUEGEL LAW FIRM P.A. Donald J. Fluegel * AttOrlleyS At LaW Daniel J. Fluegel 1303 South Frontage Road, Suite 5 Sean R. McCarthy Hastings. MN 55033-2~t77 William J. Marhert Jr. DeCembeT l ~, 2009 PERSONALL Y SER i~ED UPO1V y~ r•IL-MART LIQUOR Wal-Mart Liquor Store Attn: Store Manager 1752 North Frontage Road Hastings, MN 55033 Wal-Mart Corporate Office Attn: Kevin Gladden, License Compliance Coordinator 702 SW 8~}' Street Bentonville, AR 72716-0500 RE: HEARING NOTICE RE ALLEGED LIQUOR LICENSE VIOLATIONS Dear Wal-Mart and Mr. Gladden: Telephone 651-d38-9777 Fax 651-~38-9775 I am enclosing a Hearing Notice issued by the City of Hastings for an alleged illegal sale of alcohol from the Wal-Mart Liquor Store in the City of Hastings on December 12, 2009. The enclosed hearing notice provides you with notice that Wal-Mart Liquor will have an opportunity to either seek a hearing before the City Council or address the City Council on January 4, 2010 at 7:00 p.m. I am also enclosing for your information a copy of Hastings City Code Section 111.10 regarding suspension or revocation of liquor licenses and presumptive penalties for underage sales and compliance check failures. Once you have had an opportunity to review this information, please contact me if there is anything you would like to discuss. very truly yours, FLUE EL LAW FIRM P.A. Danie uegel Attorney for the City of Hastings DAF/lmp Enclosures ce: Melanie Mesko-Lee, City Clerk and Assistant City Administrator Michael McMenomy, Chief of Police * Also admitted to practice in Wisconsin CITY OF HASTINGS DAKOTA COUNTY, MINNESOTA In Re: City of Hastings Liquor Licensing Complaint Against HEARING NOTICE REGARDING ALLEGED LIQUOR LICENSE VIOLATION Wal-mart Liquor Store TO: WAL-MART LIQUOR STORE, ATTN: STORE MANAGER, 1752 NORTH FRONTAGE ROAD, HASTINGS, MINNESOTA, 55033 AND WAL-MART CORPORATE OFFICE, ATTN: KEVIN GLADDEN, LICENSE COMPLIANCE COORDINATOR, 702 SW 8TH STREET, BENTONVILLE, AR 72716-0500 FROM: DANIEL J. FLUEGEL, CITY ATTORNEY FOR THE CITY OF HASTINGS YOU, AS A LIQUOR LICENSEE, ARE HEREBY INFORMED that on the 4r" day of January, 2010, at 7:00 p.m., in the Council Chambers of the Hastings City Hall, 101 Fourth Street East, Hastings, Minnesota, the Hastings City Council will conduct a hearing, pursuant to Section 111.10 of the Hastings City Code and Minnesota Statutes 5340A.415, regarding allegations that the licensee violated provisions of State law and City ordinances regulating liquor establishments, as follows: On December 12, 2009, Timothy David Teeter, an employee of Wal-Mart Liquor, did sell intoxicating liquor to an underage person in violation of State law and Hastings City Code Section 111.10. If your establishment is found to be in violation as charged, the City Council may revoke the license, impose a suspension for up to sixty (60) days, impose a civil fine not to exceed $2,000.00 for each violation, or impose a combination of suspension and a civil fine. You are entitled to be present at the hearing and to be represented by an attorney. If the hearing is contested, you are entitled to call witnesses, present probative evidence, cross-examine witnesses, and submit rebuttal evidence, all as allowed by Minnesota Statutes~~' 14.60. Dated: December 17, 2009 FLUEGEL LAW FIRM P.~. -- BY: Daniel J. Fluegel, Atty. Reg. #0303112 Attorney for the City of Hastings 1303 South Frontage Road, Suite 5 Hastings, MN 55033 Telephone: (651)438-9777 CITY OF HASTINGS DAKOTA COUNTY, MINNESOTA In Re: City of Hastings Liquor Licensing Complaint Against AFFIDAVIT OF MAILING HEARING NOTICE REGARDING ALLEGED LIQUOR LICENSE VIOLATION Wal-mart Liquor Store STATE OF MINNESOTA) )ss. COUNTY OF DAKOTA ) Linda M. Partington, being first duly sworn, says that on the 17th day of December, 2009, she deposited a true and correct copy of the Hearing Notice Regarding Alleged Liquor License Violation in the United States Mail in the City of Hastings, County of Dakota, State of Minnesota, postage prepaid, duly enveloped and stamped, addressed to: Wal-Mart Liquor Store Attn: Store Manager 1752 North Frontage Road Hastings, MN 55033 Wal-Mart Corporate Office Attn: Kevin Gladden, License Compliance Coordinator 702 SW 8rh Street Bentonville, AR 72716-0500 SUBSCRIBED AND SWORN to before t is 17th day of December, 2009. Nota Public Linda M. Partington KAYLA S. BEISSEL NQTARY PLBLIC - MlNNE50FA MIY COt~MISSfON EXPIRES 1-31-2013 p LICE HASTINGS POLICE DEPARTMENT kgSi1MP'S IJIN Hastings Police Department 150E 3rd Street Hastings, MN 55033 Records: (651) 480-2300 Fax: (651) 437-1206 Incident Report: zooso~a~~~ Current As Of: Tuesday, December 15, 2009 Page t Offense 1: 4199 Offense 2: Offense 3: Location: Wal-Mart Liquor CityState: Hastings, MN 55033 Li uor Date /Time: 12/12/2009 16:29 Control Case: Officer Connell Records: Bjm Grid: 3 Disclose: Yes Police Listed business sold alcohol to an underage buyer. See dictation for details and control IC No. 09013951. Summary: Custody Report: Involvement Juvenile? Name/ Address/Phone Sex/Race OLN/State/SOC/Offense DOB Contact Date Incident Arrestee Teeter, Timothy David M W DLN: 12/12/2009 1709 Oak ST 6/8/1990 Liquor -Sell 2009014111 Hastings 651-480-3534 People Involved: Name/ Adress/ Sex /Race Involvement Last Known Phone DOB /Caution Offense Complainant Wal Mart Liquor Store, Liquor 1752 North Frontage Rd Hastings, MN 651-438-2400 Property Involved: File# Type Description Make: Model: Serial #: Loss / Rec Amt. Date Recvrd 129847 YL 12 pack cans Bud Light and Receipt for $9.83 Totals ---> Page 2 Continuation Report Case Number: 2009014111 Summary TJC -Incident in detail Mentioned Action Taken On Saturday, December 12, 2009 at approximately 1829 hours, I was performing alcohol compliance checks at off sale establishments within the City of Hastings and at this particular time my underage buyer entered Wal-Mart Liquor at 1752 North Frontage Road in the attempt to purchase alcohol without an ID. The underage buyer entered the store and a short time later exited the store with a 12 pack of Bud Light cans. He also had a receipt from that Wal-Mart Liquor Store for the amount of $9.83. He stated that the sales clerk was a white male with blonde hair and a lot of facial hair. He said he was one of two male clerks within the store. I entered the store and identified the male and immediately approached him identifying myself as Officer Connell with the Hastings Police Department. I indicated to him that he had sold alcohol to an underage buyer and if there was a back room that we could go in and talk. I also asked him to get his manager. This individual was identified by his MN picture driver's license as TIMOTHY DAVID TEETER (DOB: 06/08/90). He did contact his Manager who was identified as SCOTT KORD. I explained to both SCOTT and MR. TEETER that the sale of an alcoholic beverage was transacted with an underage buyer and I explained the consequences of that. I explained to the Manager that the City of Hastings would be advising them of any penalty resulting from this transaction and I advised MR. TEETER that he would be contacted by the Dakota County Attorney's Office regarding charges of gross misdemeanor procuring alcohol for a minor. MR. TEETER is to be charged by formal complaint for procuring alcohol to an underage person, MN statute 340A.503, Subd. 2, Paragraph 1. The evidence, the 12 pack of Bud Light and the receipt for that transaction was placed into evidence at the Hastings Police Department evidence lockers. Officer Connell/bjm DatellD; 12/12/2009 BJM ?~~ r~-'/.~/ OFFICER/~ BADGE NO. DATE TIME ~y _ ~ r~~is ~- ../ .d3 ~e~v27 PROPERTY TAKEN INTO CUSTODY AT (ADORE LOCATIOP{} INCIDENT DESCRIPTIO FROM PHONE NUMBER --- OWNER AND OR VICTIM PHONE NUMBER ~.~,.~0' ADDRESS REASON PROPERTY HELD I, _ ,acknowledge receipt of items fe received those items from at the Hastings Police Department. Date: from Hastings Police Department Case liem description on Signature oar rya u~ ORIGINAL -MAIN FILE, YELLOW -EVIDENCE TECHNICIAN; PINK - OFFI+/ER HASTINGS POLICE DEPARTMENT PROPERTY AND INVENTORY REPORT CITY OF HASTINGS DAKOTA COUNTY, MINNESOTA RESOLUTION 1-04-10 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 January 4, 2010, 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 Wal-Mart Supercenter # 1742 (hereinafter "Wal-Mart Liquor"), 1752 North Frontage Road, Hastings, Minnesotaholds an off-sale intoxicating liquor license issued bythe City of Hastings. 2. On December 12, 2009, Timothy David Teeter, an employee of Wal-Mart Liquor did 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. Timothy David Teeter is subject to prosecution in Dakota County District Court for selling alcohol to a person under the age of 21 in violation of Minnesota Statue § 340A.503, Subd. 2(1) and Hastings City Code Section 111.13(B)(8). 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 l ll.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 $1,500.00 civil penalty, and (2) A suspension of the off-sale intoxicating liquor license for 6 days, on The civil 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, January 4, 2010. Paul J. Hicks, Mayor ATTEST: Melanie Mesko Lee, City Clerk