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Home My WebLink About20100104 - VIII-C-2FLUEGEL LAW FIRM P.A. Donald J. Fluegel * AttOrneyS At LaW Daniel J. Fluegel 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 Attorney Date: December 30, 2009 Subject: Super America Store (215-33rd Street West) -Illegal Alcohol Sale CURRENT LICENSE Y70LATION. Telephone 651-438-9777 Fax 6~ ] -438-97`75 On December 12, 2009, the Hastings Police Department conducted an alcohol compliance check at Super America Store located at 215-33rd Street West in the City of Hastings. An employee of Super America Store sold alcohol to an underage individual on that date. PRIOR LICENSE VIOLATIONS. Super America Store has no prior alcohol compliance check failures within the past five years. 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 presumptive penalty for a first lime offense is a $1,000.00 civil penalty and a 3-day license suspension. No Council Member has requested that this matter be placed on the City Council Agenda for discussion and as such, staff contacted Super America to determined if the management wished to enter into a written stipulation in lieu of a hearing before the City Council. The proposed stipulation would include that the $1,000.00 civil penalty be paid within 30-days after the stipulation was approved by the Council and the 3-day suspension would need to be served on a Wednesday, Thursday and Friday but the licensee could select the week of the suspension within the same 30-day period. No suspension could be served over days the store is otherwise prohibited from selling alcohol. As of the date of this memo, Super America management has not notified me that they wish to enter into a stipulation. I had some preliminary discussions with the paralegal that handles these matters but she did not have authority to sign any stipulation. She was going to speak with a regional manager who had that authority but again, as of this date, I have not received a response. As such, this matter should be set on the administration agenda for discussion and apossible hearing. I think it is likely the Super America management will ask to address the Council but they may waive many of the formal hearing requirements. * Also admitted to practice in Wisconsin 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. COUNCIL ACTION. I request that the City Council conduct a brief hearing at the January 4, 2010 regular City Council meeting. Super America should be given an opportunity to address the Council about the violation and the penalty to be imposed. If Super America 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 Super America. 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 Super America. 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 Super America Police Reports Proposed Findings and Decision CITY OF HASTINGS DAKOTA COUNTY, MINNESOTA In Re: City of Hastings Liquor Licensing Complaint Against HEARING NOTICE REGARDING ALLEGED LIQUOR LICENSE VIOLATION Speedway SuperAinerica LLC SuperAmerica Store #4539 TO: SPEEDWAY SUPERAMERICA LLC, SUPERAMERICA STORE #4539, ATTN: SHARON STEVENS, CORPORATE BUSINESS REPRESENTATIVE, P.O. BOX 1580, SPRINGFIELD, OH 45501; AND SPEEDWAY SUPERAMERICA LLC, SUPERAMERICA STORE #4539, ATTN: STORE MANAGER, 215 33RD STREET WEST, HASTINGS, MN 55033 FROM: DANIEL J. FLUEGEL, CITY ATTORNEY FOR THE CITY OF HASTINGS YOU, AS A LIQUOR LICENSEE, ARE HEREBY INFORMED that on the 4t" 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 §340A.415, regarding allegations that the licensee violated provisions of State law and City ordinances regulating liquor establishments, as follows: 1. On December 12, 2009, Corbin Otero Mike, an employee of SuperAmerica Store, 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.A. 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 Speedway SuperAmerica LLC SuperAmerica Store #4539 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: SPEEDWAY SUPERAMERICA LLC SUPERAMERICA STORE #4539 ATTN: SHARON STEVENS, CORPORATE BUSINESS REPRESENTATIVE P.O. BOX 1580 SPRINGFIELD, OH 45501; AND SPEEDWAY SUPERAMERICA LLC SUPERAMERICA STORE #4539 ATTN: STORE MANAGER 215 33RD STREET WEST HASTINGS, MN 55033 SUBSCRIBED AND SWORN to before e this 17th day of Decerr~ber, 2009. No y Pub is Li da M. Partington tcA~v- s. e~ss~t NOTARY P(181IC -MINNESOTA MY C~9ISSUN! E%PIRES 1.31-2013 l p t~l~~ HASTINGS POLICE DEPARTMENT ~A9TIIQP9 NIN Hastings Police Department 150E 3rd Street Hastings, MN 55033 Records: (651) 480-2300 Fax: (651) 437-1206 Incident Report: 2009014113 Current As Of.' Tuesday, December 15, 2009 Page 1 Offense 1: 4199 Lipuor Offense 2: Offense 3: Date /Time: 12/12/2009 17:42 Control Case: Locatfon: Super America South Officer: Connell Records: Bjm CityState: Hastings, MN 55033 Grid: 20 Disclose: Yes Police Listed business sold alcohol to an underage buyer. See dictation for details. Alcohol Compliance IC #09013951 Summary: Custody Report: Involvement Sex/Race Juvenile? Name/ Address/Phone DOB Arrestee Mike, Corbin Otero M W 20240 Red Wing Blvd 7/13/1990 Hastings 651-434-9634 Contact Date OLN/State/SOC/Offense Incident DLN: V552235736912 12/12/2009 Liquor 2009014113 People Involved: Name/ Adress/ Involvement Last Known Phone Other Super America South, 215 33rd St W Hastings, MN 651-438-2110 Sex /Race DOB !Caution Offense Liquor Property Involved: File# Type Description Make: Model: Serial #: 66632 YL 12 pack cans Bud Light and receipt for transaction for $9.64 Totals ---> Loss ! Rec Amt. Date Recvrd Page 2 Continuation Report Case Number: 2009014113 Summary TJC -Incident in detail. Mentioned Action Taken On Saturday, December 12, 2009 at approximately 1742 hours, alcohol compliance checks were performed within the City of Hastings at off sale establishments. At that time, an underage buyer entered Super America South at 215 33rc Street in the City of Hastings. A short time later he exited that same establishment with a 12 pack of Bud Light cans and a receipt for that transaction. The underage buyer identified the sales clerk as a male with long black hair and a name tag of CORBIN. I entered the store and asked for the Manager who was CHRISTINE McCARTHY. She was in the back room. I spoke to her briefly and explained to her that I was a Police Officer with the City of Hastings and that a sale of alcohol had been transacted with an underage buyer and that her employee, CORBIN, was the clerk that made that transaction. CORBIN came back to the back room and he was identified by MN picture driver's license as CORBIN OTERO MIKE (DOB: 07/13/90). I explained to MR. MIKE and MS. McCARTHY the consequences that would result because of this transaction and that the City could take action against Super America for violation of its liquor license and that CORBIN would be facing criminal charges as a result of this transaction. MR. MIKE is to be charged by formal complaint for Selling or Procuring Alcohol to a Minor, MN State Statute 340A- 503, Subd. 2, Paragraph 1. The evidence which included a 12 pack of Bud Light cans and the receipt for that transaction was placed in the evidence locker at the Hastings Police Department. Officer Connell/bjm Date/!D: 12/12/2009 BJM HASTINGS POLICE DEPARTMENT PROPERTY AND INVENTORY REPORT CASE NUMBER OFFICER BADGE N DATE TIME Bn .3A- mom- .,2 t-~S' ~ ~~, PROPERTY TAKEN ~O C~1S?DD.Y~AT (ADDRESS/LOCATION} INCIDENT SCRIPT~N; FROM PHONE NUMBER ADDRESS OWNER AND OR VICTIM PHONE NUMBER I, _ acknowledge receipt of Items #i I received thF3se items from at the Hastings Police Department. Date: -- -_ from Hastings Police Department Case Item description on Signature aoi rx7 :Teas ORIGINAL -MAIN FILE; YELLOW - EVibENCE TECHNICIAN; PINK - OFFEGEti ADDRESS REASON PROPERTY HELD CITY OF HASTINGS DAKOTA COUNTY, MINNESOTA RESOLUTION 1-04-10 A RESOLUTION MAKING FINDINGS, CONCLUSION AND DECISION IMPOSING CIVIL PENALTY UPON SPEEDWAY SUPER AMERICA LLC -SUPER AMERICA STORE (215-33RD STREET WEST, HASTINGS) 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 Speedway Super America LLC-Super America Store. NOW, THEREFORE, based upon the evidence and testimony the City Council of the City of Hastings, makes the following: FINDINGS 1.Speedway Super America LLC-Super America Store (215-33rd Street West) (hereinafter "Super America") holds an off-sale 3.2% malt liquor license issued by the City of Hastings. 2. On December 12, 2009, Corbin Otero Mike, an employee of Super America Store, 215-33rd Street West, Hastings, 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. Corbin Otero Mike 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 l ll.13(B)(8}. 4. Representatives of Speedway Super America LLC-Super America Store did not contest the written materials and testimony presented to the City Council. CONCLUSION Speedway Super America LLC-Super America Store 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 I ll.ld, that Speedway Super America LLC-Super America Store, 215-33rd Street West, Hastings, is subject to the following sanctions: (1) A $1,000.00 civil penalty, and (2) A suspension of the off-sale 3.2 malt liquor license for 3 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