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Home My WebLink About20100104 - VIII-C-3FLUEGEL LAW FIRM P.A. Donald J. Fluegel * Attorriey5 At LaW Danie] J. Fluege] 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 (1390 South Frontage Road) -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 Super America Store located at ] 390 South Frontage Road 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 time 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 a possible 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 Iicensee, 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 ~'OTICE REGARDING ALLEGED LIQUOR LICENSE VIOLATION Speedway SuperAmerica LLC SuperAmerica Store #4486 TO: SPEEDWAY SUPER_AMERICA LLC, SUPERAMERICA STORE #4486, ATTN: SHARON STEVENS, CORPORATE BUSINESS REPRESENTATIVE, P.O. BOX 1580, SPRINGFIELD, OH 45501; AND SPEEDWAY SUPERAMERICA LLC, SUPERAMERICA STORE #4486, ATTN: STORE MANAGER, 1390 SOUTH FRONTAGE ROAD, 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 4th 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: I. On December 12, 2009, Cody Joseph Richardson, 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: aniel 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 LIQIIOR LICENSE VIOLATION Speedway SuperAmerica LLC SuperAmerica Store #4486 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 #4486 ATTN: SHARON STEVENS, CORPORATE BUSINESS REPRESENTATIVE P.O. BOX 1580 SPRINGFIELD, OH 45501; AND SPEEDWAY SUPERAMERICA LLC SUPERAMERICA STORE #4486 ATTN: STORE MANAGER 1390 SOUTH FRONTAGE ROAD HASTINGS, MN 55033 SUBSCRIBED AND SWORN to before me this 17th day of December, 2 09. of ubhc Li da M. Partington KAYLA S. BEiSSEt N67AIRY Pl~l~ - kNt~lESQ?A MY CpS10N E~PWES i-31-2Qi3 ~- P c.~cE HASTINGS POLICE DEPARTMENT NASTIlfU¢ pINN Hastings Police Department 150E 3rd Street Hastings, MN 55033 Records: (651) 480-2300 Fax: (651) 437-1206 Incident Report: zooso~a~~z Current As Of.' Tuesday, December 15, 2009 Page 1 Offense 9: 4999 Offense 2: Offense 3: Location: Super America West CityState: Hastings, MN 55033 Li uor Date /Time: 12/12/2009 17:17 Control Case: Officer: Connell Records: Bjm Grid: 8 Disclose: Yes __ Pollce Listed business sold alcohol to an underage buyer. See dictation for details. Alcohol compliance IC # 0901395 Summary: Custody Report: Involvement Sex/Race Contact Date Juvenile? Name/ Address/Phone DOB OLN/State/SOC/Offense Incident Arrestee Richardson, Cody Joseph M W DLN: F866084291220 12/12/2009 1315 21st St W 10/31 /199 Liquor 2009014112 Hastings 651-437-2875 People Involved: Name/ Adress/ Sex /Race Involvement Last Known Phone DOB J Caution Offense Other Super America West, Liquor 1390 South Frontage Rd Hastings, MN 651-480-8700 Property Involved: File# Type Description Make: Model: Serial #: Loss / Rec Amt. Date Recvrd 66548 YL 12 pack of Bud Light Cans and Receipt for $9.64 Totals ---> Page 2 Continuation Report Case Number: 2009094912 Summary TJC -incident in detail Mentioned Action Taken On December 12, 2009 at approximately 1717 hours, I was performing alcohol compliance checks at off sale establishments within the City of Hastings. At that time, my underage buyer entered Super America West at 1390 South Frontage Road in the City of Hastings. A short time later he exited with a 12 pack of Bud Light cans and a receipt for the sale of that item. He identified the clerk as a male with dark hair and an ear piercing with a name tag o~ CODY. He stated there was a female clerk in the store behind the counter with him as well. I entered the store and spoke with TERESA who I was familiar with from prior contacts in this business. I asked her to step to the back of the store where I indicated to her that the clerk named CODY, who I observed behind the counter, had sold alcohol to an underage buyer. CODY then came back to the back room and identified himself as CODY JOSEPH RICHARDSON (DOB: 10/31/91). I am also familiar with this individual from prior contacts with him within the City of Hastings. I advised CODY and TERESA again that a sale of alcohol had been transacted to an underage buyer and the following consequences would occur. The City of Hastings would take action against the liquor license of Super America West in whatever way they saw fit according to past violations if they occurred and that CODY RICHARDSON would be charged criminally for gross misdemeanor procuring alcohol for a minor. CODY RICHARDSON is to be charged by formal complaint for Procuring Alcohol to a Minor, MN Statute 340A.503, Subd. 2, Paragraph 1. The evidence which includes a 12 pack of Bud Light cans and a receipt for $9.64 from Super America West was placed into the evidence locker at the Hastings Police Department. Officer Connell/bjm Date/ID: 12/12!2008 BJM v , HASTINGS POLICE DEPARTMENT PROPERTY AND INVENTORY REPORT CASE NUMBER OFFICER BADGE NO. DATE TIME v~'Gr~ r3.~._ J ~7 ~~ PROPERTY TAKE INTO CUSTODY AT (ADDRESS/LOCATION) INCIDENT DESCRI ION: FROM PHONE NUMBER ADDRESS OWNER AND OR VICTIM I PHONE NUMBER ~.~t_~ i ADDRESS REASON PROPERTY HELD ].lr~ffTSENCE ^STOLEN PROPERTY RECOVERED ^FOUND PROPERTY ^OTHER (EXPLAIN) ITEM ~ ITEMIZE: DESCRIBE, LIST SERfAL NUMBERS, MODEL NUMBERS, BRAND NAME, CALIBER, ETC. ~G~ i, items # I received these Items from at the Hastings Police Department. Date: acknowledge receipt of from Hastings Police Department Case Item description - on Signature coy vo. cress ORIGINAL -MAIN FILE; YELLOW -- EVIDENCE TECHNICIAN; PINK - Oi=F'ICEt~ CITY OF HASTINGS DAKOTA COUNTY, MINNESOTA RESOLUTION 1-04-10 A RESOLUTION MAHING FINDINGS, CONCLUSION AND DECISION IMPOSING CIVIL PENALTY UPON SPEEDWAY SUPER AMERICA LLC -SUPER AMERICA STORE (1390 SOUTH FRONTAGE ROAD, 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 I.Speedway Super America LLC-Super America Store (1390 South Frontage Road) (hereinafter "Super America") holds an off-sale 3.2% malt liquor license issued by the City of Hastings. 2. On December 12, 2009, Cody Joseph Richardson, an employee of Super America Store, 1390 South Frontage Road, 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. 3. Cody Joseph Richardson 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 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 111.13(B)(8). ORDER IT IS HEREBY ORDERED, pursuant to Minn. Stat. § 340A.415 and Hastings City Code Section 111.10, that Speedway Super America LLC-Super America Store, 1390 South Frontage Road, 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