10-16WITHDRAWN 1/06/10 Councill�le# l0—�6
Green Sheet # 3Q ��
RESOLUTION
=�INT PAUL, MINNESOTA �/
by
1 RE
2 Market, In d/b!
3 Chavez Stree 'n
4 13, 2009, a cler
5 Stat. §609.685
6
7 WHEREAS, pe
8 $200.00 matrlx penalty; d
9
10 WHEREAS, licensee 'd
11 or request a heazing; and
12
13 WHEREAS, the Notice of lati
14 penalty or request a hearing by Decem r
15 to impose the recommended penalty; no
16
17 RESOLVED, that El Burrito Market, c.
18 matrix penalty of $200.00 for the sale of tobacc
19 Minn. Stat. §609.685 and Saint Paul L,egislative
20 within thirty days of the date of the adoption of this
Yeas Nays Absent
Bostrom
Carter
Harris
Helgen
Lantry
Stark
Thune
Adopted by Council: Date
Adopfion CeLtified by Council Secretaty
By:
Approved by Mayor: Date
By:
Req�sted by
�
By: �
Form Approv
By: �
Form App�
By:
of:
by Clry Attorne�
.,...,,r�n �� 'v /,- L'
for Sub�ssion to
AS, adveise action was taken against the Cigarette/Tobacw license held by El Burrito
a El Burrito Mercado (License ID#0018675) for the premises located at 175 Cesar
Saint Paul, by Notice of Violation dated November 25, 2009, alleging that on November
t the licensee's establishment sold tobacco products to a minor in violation of Minn.
an aint Paul Lzgislative Code §324.07; and
Saint Paul I,egislative Code §324.11 (b) (1), the licensing office recommended a
not respond to the Notice of Violation to pay the $200.00 matrix penalty
on stated that if the licensee failed to pay the $200.00 matrix
7, 2009, that the matter would be placed on the consent agenda
therefore, be it
d/b/a El Burrito Mercado is hereby ordered to pay a
roducts to a minor on November 13, 2009 in violation of
de §324.07. Payment of such penalty shall be made
10-16
Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet
' DepartmenyOffice/Council: � Date Initiated:
�, S � _ Dept. of Safety & Inspections � Gree'PI Sheet NO 3092336
j 17 DEC 2009 I,
j ConWct Person & Phone: , I
� Virpinia D. Palmer o
z66_8�,0 ; "'� � �
� Assign I 2
i Must Be on Counc' Agenda by (Da ), � Number �
' O6JAN-10 ���cy���1�-� � Routin � a
9
� Doc, Type: RESOLUTION � Order ! 5
E-Document Required: Y � I
� Document Contact: Julie Kraus I I
�I Contact Phone: 266-8776 � I
i
� Toial # of 5ignature Pages _(Clip AlI Locations for Signature)
�
�
Approval of the attached resolution to take adverse action against the Cigazette/Tobacco license held by El Bucrito Mazket,lnc. d/b/a
El Bw�ito Mercado (License ID#0018675) for the premises located at 175 Cesaz Chavez Street in Saint Paul.
Recommendations: Approve (A) or Reject (R):
Planning Commission
CIB Committee
Civil Service Commission
Personal Service Contracts Must Answer the Foilowing Questions:
1. Has ihis person/fittn ever worked under a conVact for this department?
Yes No
2. Has this person/fittn ever been a city employee?
Yes No
3. Does this person�rm possess a sftill not nortnally possessed by any
curzent city employee?
Yes No
Explain all yes answers on separate sheet and attach to green sheet.
Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why):
On November 13, 2009, the licensee sold tobacco products to a minor in violation of Minn. Stat. Section 609.685 and Saint Paul
Legislalive Code Section 342.07. After notification, licensee did not respond to the Notice of Violation.
Advantages If Approved:
Imposition of $200.00 mahix penalty.
Disadvanqges If Approved:
Disadvantages If Not Approved:
Total Amount of
Trensaction:
Funding Source:
Financial Information:
(Explain)
CosURevenue Budgeted:
Activity Number:
December 17, 2009 10:54 AM Page 1
10-16
OFFICE OF TF� CITY ATTORNEY
John J. Clwi, Ciry Attomey
SAINT
PAUL CITY OF SAINT PAUL CmdDivismn
� ChnstopherB.Coleman,Mayor 400CiryHall Telephone:651266-5770
I S West Ke(fogg Blvd Facsimile: 651298-5619
Al1AA Saint Paul, Minnesoia 55702
November 25, 2009
NOTICE OF VIOLATION
Mary Antonia Silva
El Burrito Mercado
175 Cesar Chavez Street
St. Paul, MN 55107
RE: Cigazette/Tobacco license held by El Burrito Mazket, Inc., d/b/a El Burrito Mercado for
the premises located at 175 Cesar Chavez Street in Saint Paul
License ID #0018675
Dear Ms. Silva:
The Depaztment of Safety and Inspections (DSI) has recommended adverse action
against the Cigazette/'I'obacco ]icense held by El Burrito Market, Inc., d/b/a EI Burrito Mercado
for the premises located at 175 Cesaz Chavez Street in Saint Paul. The basis for the
recommendation is as follows:
On November 13, 2009, a tobacco compliance check was conducted
at EI Burrito Mercado located at 175 Cesar Chavez Street. A
seventeen year old male entered and asked to buy cigarettes. He was
asked to show his identification, and did so. It correctly stated his
date of birth, which indicated he was underage. Nevertheless, the
clerk sold him a package of Marlboro cigarettes.
Sale of tobacco to an underage person is a violation of Minn. Stat.
§609.685 and Saint Paul Legislative Code §324.07.
This is your first violation for the sale of cigazettes to an underage person, therefore, per
Saint Paul Legislative Code §32411 (b) (1) the licensing office will recommend a$200.00
matrix penalty.
Affirmative Action Equal Opportunity Employer
10-16
El Burrito Mercado
November 25, 2009
Page 2
At this time you have three options on how to proceed:
You can pay the recommended $200.00 matrix penalty. If this is your choice, you
should make payment directly to the Department of Safety and Inspections, at 375
Jackson Street, Ste. 220, St. Paul, Minnesota 55101-1806 no ]ater than Monday,
December 7, 2009. Information should be directed to the attention of Christine
Rozek. A self-addressed envelope is enclosed for your convenience. Payment of the
$200.00 matrix penalty will be considered to be a waiver of the heazing to which you
are entitled.
2. If you wish to admit the facts but contest the penalty, you may have a public hearing
before the Saint Paul City Council, you will need to send me a letter with a statement
admitting the facts and requesting a pubiic hearing. We will need to receive your letter by
Monday, December 7, 2009. The matter will then be scheduled before the City Council
for a public heazing to determine whether to impose the $200.00 matrix penalty. You
will have an opportunity to appeaz before the Council and make a statement on your own
behalf.
3. If you dispute the above facts, you may request a hearing before an Administrative Law
Judge. At that heazing both you and the City will be able to appear and present
witnesses, evidence and cross-examine the other's witnesses. The St. Paul City Council
will ultimately decide the case. If this is your choice, please let me know by Monday,
December 7, 2009, and I will take the necessary steps to schedule the administrative
hearing.
If I have not heard from you by that date, I wiil assume that you do not contest the
imposition of the $200.00 matrix penalty. In that case, the matter will be placed on the City
Council Consent Agenda for approvai of the recommended penalty.
Please be advised that the clerk who was identified as having made the sale on this date is
also being chazged a$50.00 administrative penalty pursuant to Minn. Stat. §461.12, subd. 3.
This is a separate action from this license matter.
If you have any questions, please feel free to contact me at (651) 266-8710.
Sincerely,
�/ i rc�.nw�-- �I
Virginia D. Palmer
Assistant City Attorney
���v� C �-I��
cc: Christine Rozek, Deputy Director of DSI
Mary Antonia Silva, 241 Prescott Street, St. Paul, MN 55107
Monica Carbajal, Community Organizer, West Side Citizens Organization
127 Winifred 5treet West, St. Paul, MN 55107-2128
Affirmative Action Equal Opportunity Employer
STATE OF MINNESOT °
, ss.
COIJNTY OF RAMSEY )
10-16
AFFIDAVIT OF SE�_ . ICE BY U.S. MAIL
Julie Kraus, being first duly swom, deposes and says that on the �� day of
November, she served the attached NOTICE OF VIOLATION by placing a true and conect
copy thereof in an envelope addressed as follows:
Muy Antonia Silva
EI Burrito Mercado
175 Cesaz Chavez Street
St. Paul, MN 55107
Mary Antonia Silva
241 Prescott Street
St. Paul, MN 55107
Monica Carbajal, Community Organizer
West Side Citizens Organization
127 Winifred Street West
St. Paul, MN 55107-2128
(which is the last known address of said person) depositing the same, with postage prepaid, in the
United States mail at St. Paul, Minnesota.
Juh Kraus
Subscribe�l and swom to before me
this �S �`day of November, 2009
,a �lan, . a'wo� - (•+�tJ1'1t'�L�
Notary Public
� �san Mare Jani
k �A .
ED{Pi 2ES JAh'531, 2012
10-16
MINNESOTA STATUTES 2009 609.685
609.685 SALE OF TOBACCO TO CHILDREN.
Subdivision ]. Definitions. For the purposes of this section. the following terms shal] ha�e
the meanings respectively ascribed to them in this section.
(a) "Tobacco" means cigarettes; ci�ars; cheroots; stogies; perique; granulated, plug cut,
crimp cut. ready rubbed. and other smoking tobacco: snuff: snuff flour; cavendish; plug and
twist tobacco; fine cot and odier chewing tobaccos; shorts; refuse scraps, clippings, cuttings and
sweepings of tobacco; and other kinds and forms of tobacco, prepared in such manner as to be
suitable for chewing or smoking in a pipe or other tobacco-related devices.
(b) "Tobacco-related devices" means cigarette papers or pipes for smoking.
Subd. 1 a. Penalty Yo se1L (a) Whoever sel]s tobacco to a person under the age of 18 years is
guilty of a misdemeanor for the first violation. Whoever violates this subdivision a subsequent time
within five years of a previous conviction under this subdivision is guilty of a gross misdemeanor.
(b) It is an affirmative defense to a charge under this subdivision if the defendant proves by a
preponderance of the evidence that the defendant reasonably and in good faith relied on proof of
age as described in section 340A.503, subdivision 6.
Subd. 2. Other offenses. (a) Whoever furnishes tobacco or tobacco-related devices to a
person under the age of 18 years is guilty of a misdemeanor for the first violation. Whoever
violates this paragraph a subsequent time is guilty of a gross misdemeanor.
(b) A person under the age of 18 years who purchases or attempts to purchase tobacco or
tobacco-related devices and who uses a driver's license, permit, Minnesota identification card, or
any type of false identification to misrepresent the person's age, is guilty of a misdemeanor.
Subd. 3. Petty misdemeanor. Except as otherwise provided in subdivision 2, whoever
possesses. smokes, chews, or otherwise ingests, purchases, or attempts to purchase tobacco or
tobacco related devices aud is under the age of 18 years is guilty of a petty misdemeanor.
Subd. 4. Effect on local ordinances. Nothing in subdivisions 1 to 3 shall supersede or
preclude the continuation or adoption of any local ordinance which provides for more stringent
regulation of the subject matter in subdivisions 1 to 3.
Subd. 5. Exceptions. (a) Notwithstanding subdivision 2, an Indian may furnish tobacco to an
Indian under the age of 18 years if the Tobacco is furnished as part of a traditional Indian spiritual
or cultural ceremony. For purposes of this paragcaph, an Indian is a person who is a member of
an Indian tribe as defined in section 260.755, subdivision 12.
Cop� nglit � 2U09 by the Re� isor oT Statutes'. State of Minnesota All R�ghls Reserved
10-16
2 MINNESOTA STqTUTES 2009 609.685
(b) The penalties in this section do not apply to a person under the age of ] 8 years ���ho
purchases or attempts to purchase tobacco or tobacco-related devices while under the direct
supervision of a responsible adult for training education, research or enforcement purposes.
Subd. 6. Seizure of false identification. A retailer may seize a form of identification listed
in section 340A.503, subdivision 6,ifthe retailer has reasonable grounds to believe thatthe
form of identification has been altered or falsified or is being used to violate any law. A retailer
that seizes a form of identification as authorized under this subdivision shall deliver it to a law
enforcement agency within 24 hours of seizing it.
History: 1963 c 753 ar1 1 s 609.685; 1981 c 218 s 1,2; 1986 c 352 s 4; 1989 c 290 art 3
s 33,3-1; 1992 c 588 s 1; 1993 c 224 art 9 s d-t,45; 799-1 c 636 art 2 s 44; 1999 c 139 art 4 s
2; 2000 c 472 ,r 5-9
Copyright �' 2009 by the Reviso� of Stamies. Stale of Mmnesota. All Rishts Resei��ed.
Chapter 324. Tobacco
Sec. 324.07. Sales prohibited.
10-16
Page 1 of 1
(a) No person shall sell a cigarette outside its original packaging containing health warnings
satisfying the requirements of federal law. No cigarettes shali be sold in packages of fewer than
twenty (20) cigarettes.
(b) No person shall sell or dispense cigarette paper or cigarette wrappers from a vending
machine or a motor vehicle. No person shall sell or dispense tobacco from a motor vehicle.
(c) No person shall activate the remote control or provide tokens for a tobacco vending
machine or sell tobacco to anyone under the age of eighteen (18).
(d) Any violation of this chapter shall subject the licensee to provisions of section 310 and
section 324.10 of the Saint Paul Legislative Code.
(Code 1956, § 336.07; Ord. No. 17714, § 1, 2-20-90; C.F. No. 94-341, § 7, 4-13-94; C.F. No. 97-314, §
1, 4-20-97; C.F. No. 06-872, § 1, 10-11-06)
Chapter 324. Tobacco
Sec. 324.11. Presumptive penalties.
10-16
Page 1 of 2
(a) Purpose. The purpose of this section is to establish a standard by which the city council
determines the amount of fines, length of license suspensions and the propriety of revocations.
These penalties are presumed to be appropriate for every case; however, the council may
deviate therefrom in an individual case where the council finds and determines that there exist
substantial and compelling reasons which make it appropriate to do so. When deviating from
these standards, the council shall provide written reasons that specify why the penalty selected
was more appropriate.
(b) Presumptive penalties for violations. Adverse penalties for violations or convictions shall
be presumed as follows:
TABLE �NSET:
Type of Appearance
Violation
1st 2nd 3rd 4th
(1) Sale of tobacco to a $200.00 $400.00 30-day Revocation
mi�or fine fine suspension
(c) Fines payable without hearing. Notwithstanding the provisions of section 310.05(I), a
Iicensee who would be making a first or second appearance before the council may elect to pay
the fine to the department of safety and inspections without a council hearing, unless the notice
of violation has indicated that a hearing is required because of circumstances which may
warrant deviation from the presumptive fine amount. Payment of the recommended fine will be
considered to be a waiver of the hearing to which the licensee is entitled, and will be considered
an "appearance" for the purpose of determining presumptive penalties for subsequent
violations.
(d) Computation of time.
(1) If a licensee violates this chapter and the violation occurs within twelve (12)
calendar months after the first appearance of the same licensee for a violation under this
chapter, the current appearance shall be treated as a second appearance for the
purpose of determining the presumptive penalty.
(2) If a licensee has appeared before the council on two (2) previous occasions for
violations of this chapter, and if said licensee again appears before the council for a
violation of this chapter, and if the current violation occurs within eighteen (18) calendar
months of the violation that gave rise to the first appearance before the council, then the
current appearance shall be treated as a third appearance for the purpose of
determining presumptive penalty.
(3) If a licensee has appeared before the council on three (3) previous occasions, each
for violations of this chapter, and if said licensee again appears before the council for a
violation of this chapter, and if the current violation occurred within twenty-four (24)
calendar months of the violation that gave rise to the first appearance, then the current
appearance shall be treated as a fourth appearance for the purpose of determining the
presumptive penalty.
(4) Any appearance not covered by subsections (1), (2) or (3) above shall be treated as
a first appearance. In case of multiple violations in any appearance, the date to be used
to measure whether twelve (12), eighteen (18), or twenty-four (24) months have elapsed
shali be the date of the violation last in time at the first appearance, and the date of the
violation first in time at any subsequent appearance.
Chapter 324. Tobacco
1(1 2 of 2
(Ord. No. 17733, § 3, 5-8-90; C.F. No. 94-341, § 11, 4-13-94; C.F. No. 97-314, § 1, 4-20-97; C.F. No.
02-898, § 1, 11-6-02; C.F. No. 07-149, § 82, 3-28-07)