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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. 10-18 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. 10-18 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. 10-18 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 10-18 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)