10-18WITHDRAWN 1/06/10 Council Ntile # 10-18
Green Sheet # ��—�
RESOLUTION
F SAIN� PAUL, MINNESOTA
Presented by
�
1 WHEREAS, a�ve
2 Inc. d/b/a Super Day, In�
3 North in Saint Paul, by N
4 2009, a clerk at the licens
5 §609.685 and Saint Paul ]
6
action was taken against the Cigarette/'I'obacco license held by Super Day,
icense ID#20070002366) for the premises located at 281 Snelling Avenue
e of Violation dated November 25, 2009, alleging that on November 13,
� stablishment sold tobacco products to a minor in violation of Minn. Stat.
i�s�'a�ive Code §324.07; and
7 WHEREAS, per Saint Paul islative Code §324.11 (b) (1), the licensing office recommended a
8 $200.00 matrix penalty; and
9
10 WHEREAS, licensee did not respo to the Notice of Violation to pay the $200.00 matrix penalty
11 or request a hearing; and
12
13 WHEREAS, the Notice of Violation state that if the licensee failed to pay the $200.00 matrix
14 penalty or request a heazing by December 7, 2009, at the matter would be placed on the consent agenda
15 to impose the recommended penalty; now, therefore, it
16
17 RESOLVED, that Super Day, Inc. d/b/a Super Da Inc. is hereby ordered to pay a matrix penalty
18 of $200.00 for the sale of tobacco products to a minor on vember 13, 2009 in violation of Minn. Stat.
19 §609.685 and Saint Paul Legislative Code §324.07. Payme of such penalty shall be made within thirty
20 days of the date of the adoption of this resolution.
Adoption Certified by Council Secretary
By:
Approved by Mayor: Da[e
Req�ted by Department of:
By: --���`-.'-e=r
Form Approved b City Atto:
By: �
Form Ap ved a or fo:
By:
�
Adopted by Council: Date
C-c�
io-is
Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet �
S � _Dept.ofSafery&Inspections � 47DEC2009 '� Green Sheet NO: 3092378
Contact Persan & Phone: � ��
Virctinia D. Pa�mer � y I o
266-8 i �; 1
Assign � 2
Must 6e on Counci l�qenda by (Date : � Number �
06JAN-10 ��' F1.1_A ��� I For � 3
, Routing � 4
Doa Type: RESOLUTION I Order j 5
i �
E-DOCUment Requfred: Y ( �
Document Contact: �ulie Kraus �
ConWCt Phone: 266-8776 I
u
Totaf # of Signature Pages _(Clip Alt Locations for Signature)
Action Requested:
Approval of the attached resolution to take adverse action against the Cigazette/Tobacco license held by Super Day, Inc. d/b/a Super
Day, Inc. (License ID#20010002366) for the premises located at 281 Snelling Avenue Noxth in Saint Paul.
Recommendations: Approve (A) or Reject (R):
Planning Commission
CIB CommiKee
Civil Service Commission
Personal $ervice Contracts Must Answer the Following Questions:
1. Has this person/firm ever worked under a contrect for this department?
Yes No
2. Has this personlfirm ever been a city employee?
Yes No
3. Does this personffirm possess a skill not normally possessed by any
current city employee?
Yes No
Explain all yes answers on separate sheet and attach to green sheet.
Initiating Probiem, 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
Legislative Code Section 324.07. After notification, licensee did not respond to the Notice of Violation.
Advantages If Approved:
Imposition of the $200.00 mahix penalty.
Disadvantages If Approved:
Disadvantages If Not Approved:
Total Amount of
Transaction.
Funding Source:
Financial information:
(Expiain)
CostlRevenue Budgeted:
Activity Number:
December 17, 2009 11:18 AM Page 1
10-18
SA[HT
PAUL
�
Al1AA
CITY OF SAINT PAUL
Chris=apherB. Coleman, Mayar
November 25, 2009
OFFICE OF THE CITY ATTORNEY
John J. Chor, CiryAnomey
Crve! Di�ision
400 C�ry Hal[
]5 West Kellogg Blvd.
Saint Pau( Mmnesota 55102
Telephone 657 266-8710
Facsimi2e � 657 298-5619
NOTICE OF VIOLATION
David Povolny
Super Day, Inc.
281 Snelling Avenue North
St. Paul, MN 55104
RE: Cigarette/Tobacco license held by Super Day, Inc. d/b/a Super Day, Inc. for the premises
located at 281 Snelling Avenue North in Saint Paul
License ID #20070002366
Deaz Mr. Povolny:
The Department of Safety and Inspections (DSI) has recommended adverse action
against the Cigazette/'I'obacco license held by Super Day, Inc. d/b/a Super Day, Inc. for the
premises located at 281 Snelling Avenue North in Saint Paul. The basis for the recommendation
is as follows:
On November 13, 2009, a tobacco compliance check was conducted at
Super Day, Inc. located at 281 Snelling Avenue North. A seventeen year
old male entered and asked to buy cigarettes. He was not asked to show
his ident�cation, which would have 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 §324.11 (b) (1) the licensing office will recommend a$200.00
matrix penalty.
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Super Day, Inc.
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 later 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 hearing to which you
aze entitled.
2. If you wish to admit the facts but contest the penalty, you may have a public heazing
before the Saint Paul City Council, you will need to send me a letter with a statement
admitting the facts and requesting a public heazing. We wil] need to receive your letter by
Monday, December 7, 2009. The matter will then be scheduled before the City Council
for a public hearing 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 hearing both you and the City will be able to appeaz 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 ]et me know by Monday,
Aecember 7, 2009, and I will take the necessazy steps to schedule the administrative
heazing.
If I have not heard from you by that date, I wili assume that you do not contest the
imposition of the $200.00 matrix penaity. In that case, the matter will be placed on the City
Council Consent Agenda for approval of the recommended penalty.
Please be advised that the clerk who was identified as having made the sale on this date is
also being charged 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,
�s;��� t� . ��,�n ( ���
Virginia Palmer
Assistant City Attorney
cc: Christine Rozek, Deputy Director of DSI
Super Day, Inc. c/o 295 Snelling Avenue North, St. Paul, MN 55104
Roger Bromander, Exec. Director, Union Pazk District Council, 1570 Concordia Avenue,
Ste. LL100, 3t. Paul, MN 55104
STATE OF MINNESOT/'
10-18
� ss. AFFIDAVIT OF SE� . ICE BY U.S. MAIL
COUNTY OF RAMSEY )
Julie Kraus, being first duly sworn, 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:
David Povolny
Super Day, Inc.
281 Snelling Avenue North
St. Paul, MN 55104
Super Day, Inc.
c/o 295 Snelling Avenue North
St. Paul, MN 55104
Roger Bromander, Exec. Director
Union Park District Council
1570 Concordia Avenue, Ste. LL100
St. Paul, MN 55104
(which is the last known address of said person} depositing the same, with postage prepaid, in the
United States mai] at St. Paul, Minnesota.
a
`�-
Juli aus
Subscribed and sworn to before me
this �S�`day of November, 2009
. �.�ruo� i�c�, � � ���
Notazy Public
� � �usan Marle danisch-yyameP
. P«r'�'?ARYRUBLIC•fl91NIdESOTA
� �>. o A
EX�IFdES S 2Q12
..�x=�'�ec� .
10-18
MINNESOTA STATUTES 2009 609.685
609.685 SALE OF TOBACCO TO CHILDREN.
Subdivision 1. Definitions. For the purposes of this section, the followin� terms shall have
the meanings respectively ascribed to them in this section.
(a) "Tobacco" means cigarettes; cigars; cheroots; stogies; perique; granulated, plug cut,
crimp cut. ready rubbed, and other smoking tobacco; snuff: snuff flour; cavendish; plug and
twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings aud
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. la. Penalty to se1L (a) Whoever sells tobacco to a person under the age of 18 years is
guilty of a misdeineanor 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 ar 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 and is under the age of 18 years is guilty of a petty misdemeanor.
Subd. 4. Effect on local ordinances. Nothing ii� subdivisions ] 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 fumish 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 paragraph, an Indian is a person who is a member of
an Indian tribe as defined in section 260.755, subdivision 12.
Copyright '.�t" 2009 by t6e Revisor of Statutes. Stafe of Minnesota. Al] Rights Reserved
io-is
2 MINNESOTA STATUTES 2009 609.685
(b) The penalties in this section do not apply to a person under the age of 18 years who
purchases or attempts to purchase tobacco or tobacco-related devices while under the direct
supervision of a responsible adult for trainin�, 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, if the retailer has reasonable grounds to believe that the
forn� 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 art I s 609.685, 1981 c 218 s 1,2; 1986 c 3.i2 s 4; 1989 c 290 art 3
s 33,34, 1992 c 588 s 1; 1993 c 224 art 9 s 44,45; 1994 c 636 art 2 s 44; 1999 c 139 art 4 s
2: 2000 c 472 s 5-9
Copynght OO 2009 by the Revisor of Statutes. State of Minnesota. All Riglns Resen�ed
Chapter 324. Tobacco
Sec. 324.07. Sales prohibited.
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Page 1 of I
(a) No person shall sell a cigarette outside its original packaging containing health warnings
satisfying the requirements of federal law. No cigarettes shall 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 shali activate the remote control or provide tokens for a tobacco vending
machine or sefl tobacco to anyone under the age of eighteen (18).
(d) Any violation of this chapter shail 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.
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Page 1 of 2
(a) Purpose. 7he 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 INSET:
Type of Appearance
Violation
1st 2nd 3rd 4th
(1) Sale of tobacco to a $200.00 $400.00 30-day Revocation
minor fine fine suspension
(c) Fines payable without hearing. Notwithstanding the provisions of section 310.05(I), a
licensee who would be making a first or second appearance before the council may elect to pay
the fne to the department of safety and inspections without a councif 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 hvelve (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 Iicensee has appeared before the council on two (2) previous occasions for
violations of this chapter, and if said licensee again appears before the councii 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 shail 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 penaity.
(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
shall be the date of the violation last in time at the first appearance, and the date of the
vio{ation first in time at any subsequent appearance.
Chapter 324. Tobacco
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Page 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)