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CR 05-072 Mac's Liquor Violation Hearing CITY OF May 17, 2005 m IiOPKINS Council Report 2005-072 MAC'S LIQUOR (McCARVILLE) LIQUOR LICENSE VIOLATION HEARING Pro Dosed Action Staff recommends adoption of the following motion: Move that Council approve administrative penalties for Iiauor license violations with Mac's Liauor. 8554 Excelsior Boulevard. Hopkins. MN, Overview Mac's Liquor, located at 8554 Excelsior Boulevard (the "Licensee") is before the City Council pursuant to Hopkins Code Section 1200.54, for the purpose of determining whether the Licensee has violated laws regulating the Licensee's activities, how many such violations have occurred and what the appropriate sanction should be, if any. The Council may consider administrative penalties upon a determination of second offense to a maximum of 60 days suspension of license and/or a maximum fine of $2,000.00 or any part thereof. Under conditions of the ordinance on December 19, 2003 the Council may elect not to set an administrative penalty and direct the City Manager to hold an administrative hearing prior to Council review. If Council determines to move forward with an administrative penalty, staff recommends Council adopt a 6-day suspension and $1,000.00 fine for offense. If a suspension period is adopted the Council may direct the date of suspension or direct staff to follow current policy in setting fI start date for suspension. If the Council determines a third offense occurred on March 14,2005 the Council may consider a presumptive penalty as outlined in the ordinance of 10 days consecutive license suspension beginning on the same day of the week as the offense occurred and a $2,000.00 fine or make a determination that there exists substantial reason making it appropriate to deviate from the presumptive penalty. Upon determination of reasons to deviate from the presumptive penalty the Council may adopt administrative penalties upon a determination of third offense to a maximum of 60 days suspension of license and/or a maximum fine of $2,000.00 or any part thereof. Staff reCommends Council adopt an administrative penalty of a 10-day suspension and a $2,000.00 fine for the third offense. If adopted suspension will begin on the same day of the week as the occurrence of the violation following Council action. Primarv Issues to Consider . Is the event on December 19, 2003 a second offense under the definition of the ordinance? · Is the event on March 14, 2005 a third offense under the definition of the ordinance? . Do presumptive penalties apply? SUDDortina Information . Factual Background . Chapter XII of the City of Hopkins Code ~c~ Craig A. Rei Chief of Police Mac's Liquor (McCarville) Liquor License Violation Hearine: Smnmarv Introduction Mac's Liquor, located at 8554 Excelsior Boulevard (the "Licensee") is before the City Council pursuant to Hopkins Code Section 1200.54, for the purpose of determining whether the Licensee has violated laws regulating the Licensee's activities, how many such violations have occurred and what the appropriate sanction should be, if any. Factual Background On May 19, 2003, Hopkins Police Officers encountered an intoxicated 19 year old male and a juvenile female on foot in the Baker's Square parking lot on Blake Avenue, The male was in possession of a bottle of beer which he told the officers he had obtained at "Mac's," referring to the Licensee which is located approximately two blocks away. The officers proceeded to the store location and spoke with Carrie Sue McCarville who indicated she had sold the alcohol to the male, who she said had previously provided proof to her that he was at least 21 years old. Ms. McCarville was charged with selling alcohol to an obviously intoxicated person. Ms, McCarville subsequently claimed that another clerk had sold the alcohol to the under age male. Ms. McCarville's case was resolved without a guilty plea but on the condition that she (1) admit that alcohol had been sold to an underage person, (2) that the Licensee not challenge the imposition of a civil fine for the violation and (3) that Ms. McCarville pay $300 in prosecution costs to the City of Hopkins, Ms. McCarville executed such an agreement on August 27,2003, A civil fine of $500 was imposed pursuant to the Hopkins Code and was paid by the Licensee. On December 19,2003, the Hopkins Police conducted a regular undercover operation involving a1cohollicensees, including the Licensee. On that date, a I9-year old, acting under the supervision of the Hopkins Police, entered the Licensee's store and purchased beer. The clerk on duty, Justin Springer, sold alcohol to the I9-year old without asking for or obtaining any identification, Mr. Springer was charged with selling alcohol to an underage person and he entered a plea of guilty to the charge on March 17,2004. Although the violation was reported to the Hopkins City Manager in May 2004, no action was taken at that time to impose a civil penalty on the Licensee. On March 14, 2005, the Hopkins Police conducted a regular undercover operation involving alcohol licensees, including the Licensee. On that date, an I8-year old acting under the supervision of the Hopkins Police, entered the Licensee's store and purchased beer. The clerk on duty, Tammy Anderson, sold alcohol to the I8-year old without asking for or obtaining any identification. Ms. Anderson was charged with selling alcohol to an underage person and she entered a plea of guilty to the charge on May 5, 2005. Penalty Options Pursuant to Hopkins Code Section 1200.54, the maximum penalty for each violation of the liquor license regulations is revocation of the license. The maximum suspension of a license for each violation is 60 days and the maximum fine for each violation is $2,000,00. Hopkins Code Section 1200.54, however, provides presumptive minimum penalties for violations, with each penalty increasing depending on the licensee's prior violation history. The presumptive penalties for the Licensee, which was not involved in the Department's Best Practices program are as follows: First Offense - 4 day consecutive license suspension and $500 fine; Second Offense - 6 day consecutive license suspension and $1,000 fine; Third Offense - 10 day consecutive license suspension and $2,000 fine; Fourth Offense -license revocation. Penalty Recommendation The Licensee has three separate violations, but has received a penalty only for the first violation, The Police Department recommends that the Council impose the presumptive penalty for both the second and third violations, a total of 16 consecutive days of license suspension and a $3,000 fine. The Licensee has declined to accept the presumptive penalty and has requested a hearing before the City CounciL Hearing Substance and Process The City Attorney,'on behalf of the Police Department, will present the following evidence to the City Council in support of the Department's request for imposition of the presumptive penalties: L Copies of Hopkins Police narrative reports for the incidents occurring May 19, 2003 (Carrie McCarville), December 19,2003 (Justin Springer) and March 14, .2005 (Tammy Anderson), 2. Copies of the Hennepin County case history documents indicating convictions in March 2004 for Springer and May 2005 for Anderson, 3. Copies of the Hennepin County case history document regarding the resolution of Ms. McCarville's case as well as a copy of the Agreement to Suspend Prosecution document executed by Ms, McCarville August 27, 2003. 4. Testimony of Officer Mark Ledbetter regarding the May 19,2003, incident involving Ms. McCarville. 5. Testimony of Chief Reid regarding the civil fine paid by the licensee following Ms, McCarville's matter in May 2003, Copies of these documents have been provided to the Licensee's attorney. It is unknown at this time what evidence or witnesses the Licensee intends to offer at the hearing. Hopkins City Code (April 1999) 1200.01 CHAPTER XII SALE, CONSUMPTION AND DISPLAY OF ALCOHOLIC BEVERAGES 1200.01. Provisions of the State Law adopted. The provisions of Minnesota State Statute, Chapter 340A, relating to the definitions of terms, licensing, consumption, sales, financial responsibility of licensees, hours of sale and all other matters pertaining to the retail sale, distribution, and consumption of intoxicating liquor are adopted and made a part of this ordinance as if set out in full. 1200.03 Licenses Required. Subdivision 1. General requirement. No person, except a wholesaler or manufacturer to the extent authorized under state license, shall directly or indirectly deal in, sell, or keep for sale in the City of Hopkins, any intoxicating liquor without a license to do so as provided in this ordinance. Liquor licenses shall be of eight kinds: . on-sale . temporary on-sale . off-sale . club . on-sale wine . 3.2 % malt liquor on-sale . 3.2 % malt liquor off-sale . temporary 3.2% malt liquor on-sale. 1200.05. Subdivision 1. On-sale licenses. On-sale licenses shall be issued only to hotels, clubs, restaurants, Bowling Centers and to exclusive liquor StO.~5, which exclusive liquor stores were in existence on July 1, 1999, and sharI permit on-sale of liquor only. Ten on-sale licenses may be granted in , a year. Subd. 2. After July 1, 1999, no on-sale liquor license shall be issued to an establishment unless the applicant makes a bona fide estimation that at least fifty percent of the gross receipts of the establishment during its first year of business will be attributable to the sale of food. Subd. 3. Each establishm~~t granted an on-sale liquor license under this section shall have the continuing obligation to have at least fifty percent of gross receipts from the establishment during the preceding business year attributable to the sale of food. Section 1200 Page 1 Hopkins City Code (Revised April 1999) 1200.07 S'J.bd. 4. For the purpose of r.his requirement, \'establishment" shall include the food and beverage portion of a multi-service establishment. Flnancial records for the food and beverage portion must be maintained separately from the records of the remainder of the establishment. Subd. 5. For the purpose of this section, "sale of food" shall include gross receipts attributable to the sale of food items, soft-drinks and nonalcoholic beverages. It shall not include any portion of gross receipts attributable to the nonalcoholic components of a plain or mixed alcoholic beverage, such as ice, soft-drink mixes or other mixes. Subd. 6. The Council may require the production of such documents or information, including, but not limited to, books, records, audited financial statements, or pro forma financial statements as it deems necessary or convenient to enforce these provisions. The Council may also obtain its own audit or review of such documents or information, and all licensees shall cooperate with such a review, including prompt production of requested records. Subd. 7. In addition to other remedies that it may have available, the Council may place the license of anyon-sale liquor licensee on probationary status for up to one year, when the sale of food is reported, or found to be, less than fifty percent of gross receipts for any business year. During the probationary period, the licensee shall prepare any plans and reports, participate in any required meetings, and take other action that the Council may require to increase the sale of food. Subd. 8. The above provisions shall not apply to any business having an on-sale liquor license prior to July 1, 1999 and will not affect the fu~~re renewals of the on-sale licenses for such businesses. These provisions shaTI not apply to new licenses issued for existing establishments, due to . sale or transfer of ownership of these establishments, unless the establishment has been closed and without a liquor license for at least 90 days. These provisions shall also not apply to any new on-sale liquor license for a hotel or bowling alley. 1200.07 On-Sale wine licenses. Subdivision 1. On-sale wine licenses shall be issued only to restaurants meeting the qualifications of Minnesota Statutes Section 340A.404. Subdi~ision 5, and shall permit only the sale of wine not exceeding 14 percent alcohol by volume, for consumption on the licensed premises only, in conjunction with the sale of food. Subd. 2 The holder of an on-sale wine license who is also licensed to sell 3.2 percent malt liquors at on-sale and whose gross receipts are at least 60 percent attributable to the sale of food, may sell intoxicating malt liquors at on-sale without an additional license. 1200.09 Temporary on-sale licenses. Subject to the approval of the commissioner of public safety, temporary on-sale licenses shall be issued only to clubs or charitable, religious, or other non-profit organizations in existence for at least three years. A temporary license authorizes the on- sale of intoxicating liquor in connection with a social event within the city sponsored by the licensee and subject to restrictions imposed by the state liquor act. Section 1200 Page 2 HOp%l~S Clty Cede (Rensed April 19991 1200.07 S:..:bd. 4. For the pt:.rpcs€ cf 'ChlS req'..1i.rement, "establ~shment" shall ~nclude the food and beverage portlon of a multi-service establishment. Flnancia1 records for the food and beverage portion must be maintained separately from the records of the remainder of the establishment. Subd. 5. For the purpose of this section, "sale of foodU shall include gross receipts attributable to the sale of food items, soft-drinks and nonalcoholic beverages. It shall not include any portion of gross receipts attributable to the nonalcoholic components of a plain or mixed alcoholic beverage, such as ice, 50ft-drink mixes or other mixes. Subd. 6. The Council may require the production of such documents or information, including, but not limited to, books, records, audited financial statements, or pro forma financial statements as it deems necessary or convenient to enforce these provisions. The Council may also obtain its own audit or review of such documents or information, and all licensees shall cooperate with such a review, including prompt production of requested records. Subd. 7. In addition to other remedies that it may have available, the Council may place the license of anyon-sale liquor licensee on probationary status for up to one year, when the sale of food is reported, or found to be, less than fifty percent of gross receipts for any business year. During the probationary period, the licensee shall prepare any plans and reports, participate In any required meetings, and take other action that the Council may require to increase the sale of food. Subd. B. The above provisions shall not apply to any business having an on-sale liquor license prior to July 1, 1999 and will not affect the fut~re renewals of the on-sale licenses for such businesses. These provisions sharl not apply to new licenses issued for existing establishments, due to saie or transfer of ownership of these establishments, unless the establishment has been closed and without a liquor license for at least 90 days. These provisions shall also not apply to any new on-sale liquor license for a hotel or bowling alley. 1200.07 On-Sale wine licenses. Subdivision 1. On-sale wine licenses shall be issued only to restaurants meeting the qualifications of Minnesota Statutes Section 340A.404. Subdiyision 5, and shall permit only the sale of wine not exceeding 14 percent alcohol by volume, for consumption on the licensed premises only, in conjunction with the sale of food. Subd. 2 The holder of an on-sale wine license who is also licensed to sell 3.2 percent malt liquors at on-sale and whose gross receipts are at least 60 percent attributable to the sale of food, may sell intoxicating malt liquors at on-sale without an additional license. 1200.09 Temporary on-sale licenses. Subject to the approval of the commissioner of public safety, temporary on-sale licenses shall be issued only to clubs or charitable, religious, or other non-profit organizations in existence for at least three years. A temporary license authorizes the on- sale of intoxicating liquor in connection with a social event within the city sponsored by the licensee and subject to restrictions imposed by the state liquor act. Section 1200 Page 2 Hopk~ns City Code (Revised Apr~l 1999) 1200.11 1200.11. Off-sale l~censes, Off-sale licenses shall be issued to exclusive liquor stores and shall permit off sales of liquor only. No off-sale license shall be issued to an establishment holding an on-sale liquor license except those on-sale and off-sale licenses that are presently existing in such combination. The sale of such an establishment shall not prevent the new owners from applying for an off-sale liquor license. At any time hereafter that any such existing combined on-sale and off-sale licenses are for any reason suspended, canceled, or not applied for, no further re-issuance or renewal of such licenses shall thereafter be allowed or issued in combination. 1200.12. No new off-sale license shall be granted for any building within 350 feet of any elementary or secondary school; daycare center; or religious institution. Furthermore, no new off-sale license shall be granted for any building within 350 feet of any existing liquor store, pawn shop, licensed currency exchange, or any business licensed under Section 1160 or 1165 of the Hopkins City Code (Adult businesses.) For purposes of this ordinance, this distance shall be a horizontal measurement from the nearest existing property line of any church site, school site, day care site, or the site of any existing liquor store, pawn shop, licensed currency exchange, or any business licensed under Section 1165 of the Hopkins City Code, to the nearest property line of the proposed off-sale liquor site. (Added by Ord. 2003-897) 1200.13. Special club licenses. Special club licenses shall be issued only to incorporated clubs or congressionally chartered veterans' organizations that have been in existence at least three years. 1200.15. Special license for Sunday sales. A special license authorizing sales on Sunday in conjunction with the serving of food may be issued to any hot.~, restaurant, Bowling Center or club which has facilities for serving at least 30 guests at one time, and which has an on-sale license. , 1200.17. 3.2 percent malt liquor, on-sale. An on-sale 3.2 percent malt liquor license may only be issued to drugstores, restaurants, hotels, clubs, bowling centers where food is prepared and served for consumption on the premises and in bona fide clubs, and shall permit the sale of beer for consumption on the premises only. 1200.19. off-sale original 3.2 percent malt liquor, off sale. Subdivision 1. A 3.2 percent malt liquor license may be issued to permit the sale of beer in the packages for removal from and consumption off the premises only. Subd. 2. Exemptions. a. Any person licensed to sell intoxicating liquor at on-sale shall not be required to obtain a 3.2 percent malt liquor on-sale and may sell 3.2 percent beer at on-sale without further license. b. Any person licensed to sell intoxicating liquor at off-sale shall not be required to obtain a 3.2 percent malt liquor off-sale license and may sell 3.2 beer without further license. 1200.21. Temporary 3.2 percent malt liquor. A club or charitable, religious, or nonprofit organization may be issued a temporary on-sale license for the sale and consumption of 3.2 percent malt liquor. The issuance of such license shall be made in accordance with city policy. Section 1200 Page 3 Hopklns Clty Code (Revised April 1999) 1200.23 l200.23. Application for Llcense. A person desiring any license for either on-sale or off-sale of liquor, wine, or 3.2 percent malt liquor must file an application in writing with the clerk in the form prescribed by the commissioner and with such additional information as the council may require. 1200.25. Payment. Each application for a license shall be accompanied by payment in full of the license fee and the investigation fee. Each license shall be issued for a period of one year except that if the application is made during the license year, then the license fee shall be one-fourth of the fee for each three months or part thereof for the remainder of the license year. 1200.28. Investigation/ Granting of License. The council shall cause investigation to be made of all representation set forth in the application. No license shall be issued, or renewed if the results show to the satisfaction of the council that issuance would not be in the public interest. Opportunity shall be given at a regular or special meeting of the council to any person to be heard for or against the granting of any license. After such investigation, the council shall grant or refuse such license in its discretion provided that no off-sale, wine, or club license shall become effective until it, together with the security furnished by the applicant has the approval of the commissioner. The fee for such investigation shall be set from time to time by resolution and shall be payable by the applicant whether or not the 11cense is granted. 1200.30. Refunds. No refund of any fee shall be made except as authorized by statute. 1200.32. Proof of Financial Responsibility. No liquor license may be issyed, 'maintained, or renewed unless the applicant demonstrates proof of fiqancial responsibility as defined in Minnesota Statutes Section 340A.409 with regard to liability under the statutes, Section 340A.801. Such proof shall be filed with the commissioner of public safety. Applicants for liquor licenses to whom the requirement for proof of financial responsibility applies include all applicants for wine and 3.2 percent malt liquor licenses. Any liability insurance policy filed as proof of financial responsibility under this subdivision shall conform to Minnesota Statutes Section 340A.409. Temporary liquor license applicants shall provide aggregate limits of one million dollars. ,,' 1200.34. Payment of Taxes and other Fees. Subdivision 1. No License shall be granted for operation on any premises upon which state or city taxes, assessments or other financial claims of the state or city are delinquent and unpaid. Any existing license may be suspended or revoked until such time that delinquent or unpaid tax or assessment, or other financial claim is paid in full. At such time that all delinquent or unpaid taxes or assessments or other financial claims are paid in full, a revoked or suspended license shall be re-issued for the remainder of the license period without additional application or payment by the licensee. Subd. 2 Notwithstanding the foregoing, if the delinquent taxes, assessments or other financial claims are against a landowner, and the licensee is a tenant of the landowner and has no financial interest in the landowner, then the City Council may, but shall not be required to, grant a license to an applicant so long as the applicant is not delinquent on any taxes, assessments or other financial claims as set forth herein. Section 1200 Page 4 HopK:r:s C:ty ~ode \Rev~sed April 1999) 1200.23 ~20Q.23. Applicatlo~ for :icense. A person desiring any license for either on-sale or off-sale of liquor, wine, or 3.2 percent malt liquor must file an appl~cation in writing with the clerk in the form prescribed by the commissioner and wlth such additional information as the council may require. 1200.25. Payment. Each application for a license shall be accompanied by payment in full of the license fee and the investigation fee. Each license shall be issued for a period of one year except that if the application is made during the license year, then the license fee shall be one-fourth of the fee for each three months or part thereof for the remainder of the license year. 1200.26. Investigation/ Granting of License. The council shall cause investigation to be made of all representation set forth in the application. No license shall be issued, or renewed if the results show to the satisfaction of the council that issuance would not be in the public interest. Opportunity shall be given at a regular or special meeting of the council to any person to be heard for or against the granting of any license. After such investigation, the council shall grant or refuse such license in its discretion provided that no off-sale, wine, or club license shall become effective until ~t, together with the security furnished by the applicant has the approval of the commissioner. The fee for such investigation shall be set from time to time by resolution and shall be payable by the applicant whether or not the license is granted. 1200.30. Refunds. No refund of any fee shall be made except as authorized by statute. 1200.32. Proof of Financial Responsibility. No liquor license may be issued, maintained, or renewed unless the applicant demonstrates proof of fiqancial responsibility as defined in Minnesota Statutes Section 340A.409 with regard to liability under the statutes, Section 340A.801. Such proof shall be filed with the commissioner of public safety. Applicants for liquor licenses to whom the requirement for proof of financial responsibility applies include all applicants for wine and 3.2 percent malt liquor licenses. Any liability insurance policy filed as proof of financial responsibility under this subdivision shall conform to Minnesota Statutes Section 340A.409. Temporary liquor license applicants shall provide aggregate limits of one million dollars. 1200.34. Payment of Taxes and other fees. Subdivision 1. No License shall be granted for operation on any premises upon which state or city taxes, assessments or other financial claims of the state or city are delinquent and unpaid. Any existing license may be suspended or revoked until such time that delinquent or unpaid tax or assessment, or other financial claim is paid in full. At such time that all delinquent or unpaid taxes or assessments or other financial claims are paid in full, a revoked or suspended license shall be re-issued for the remainder of the license period without additional application or payment by the licensee. Subd. 2 Notwithstanding the foregoing, if the delinquent taxes, assessments or other financial claims are against a landowner, and the licensee is a tenant of the landowner and has no financial interest in the landowner, then the City Council may, but shall not be required to, grant a license to an applicant so long as the applicant is not delinquent on any taxes, assessments or other financial claims as set forth herein. Section 1200 Page 4 Hopkins Clty Code (Revised Aprll 1999) 1200.36 1200.36. Posting. Licensed premises shall have the license posted in a conspicuous place therein at all times. 1200.38. Renewal of License. Subdivision 1. Time for Renewal. Applications for renewal of an existing license shall be made at least sixty days prior to the date of the expiration of the license. If in the judgement of the City Council, good and sufficient cause is shown by any applicant for his failure to file a renewal application within the time prescribed, the Council may never the less receive such application. Subd. 2. License Renewal Investigation. All renewal applications, which reflect a change of status, may be investigated for verification of the matters set forth in the renewal application, which are updated since the last application. If at the time of renewal, a change of the manager of the premises is identified, the licensee shall pay a supplemental investigation fee which will be set from time to time by resolution and shall be payable whether or not the license is granted. 1200.40. Transfer of License. Subdivision 1. No license shall be transferable between persons or to a different location. Any change in individual ownership or substitution of partners will require application for a new license. For a corporation, a transfer or sale of more than 10% of the shares will also require a new license. A transfer of stock without prior council approval and an investigation is a ground for revocation of the license Subd. 2. New licenses ,required under this section will require the full investigation fee to be paid by the applicant. The license fee will be pro-rated according to Section 1200.25. (Amended by Ord. 2003-899) , . 120p~42. Conditions of license. Subdivision 1. General rule. Licenses granted under this section shall be granted subject to the following conditions of this subsection, and subject to all other ordinances of the city applicable thereto and to all regulations promulgated by the commissioner applicable thereto. Subd 2. Conduct. Every licensee shall be responsible for the conduct of his licensed place of business and for conditions of sobriety and order therein. No licensee shall keepi\possess, or operate, or permit the keeping, possession, or operation of, on the licensed premises, or in any room adjoining the licensed premises, any slot machine, dice, or any gambling device or apparatus, nor permit any gambling therein, except that which is approved by state statute, nor permit the licensed premises or any room in the same, or in any adjoining building, directly or indirectly under its control to be used by prostitutes or other disorderly persons. Subd. 3. Sales prohibited. No intoxicating wine, liquor or malt beverage shall be sold or furnished for any purpose whatever to a person under the age of 21 years, or to a habitual drunkard, or to a person under guardianship, or to any person obviously intoxicated, or to any of the persons to whom sale is prohibited by statute. Section 1200 Page 5 Hopkins City Code (Revised Dec. 2004) 1200.42, Subd. 4 Subd. 4. Character. A license may not be issued to a person not a citizen or resident alien of the United States and a licensee shall be of good moral character and repute. A license may not be issued to any person who shall hereafter be convicted of any willful violation of any law of the United States or the State of Minnesota or of any local ordinance with regard to the manufacture, sale, distribution or possession for sale or distribution of intoxicating liquor, nor to any person whose license under this section shall be revoked for any willful violation of any such laws or ordinances. Subd. 5. Training. Each licensee must have at least one representative attend all mandatory liquor license training seminars conducted by the city. The representative need not be the same person each time but must hold a position of responsibility in either the ownership or management of the licensee. (Added by Ord. 2004-938) 1200.44. Additional conditions of intoxicating liquor licenses and the operation of licensed premises. Subdivision 1. The following acts or conduct on licensed premises deemed and decreed to be contrary to public welfare and morals and, therefore, no on sale liquor license shall be operated, maintained or allowed at, in or on any premises where such acts or conduct are permitted or tolerated. No licensee shall employ, permit or encourage any person or employee in or on any such licensed premises in or under any of the following circumstances: a. while such employee or person is unclothed or in such attire, costume or clothing as to expose any portion of the female breast below the top of the areola, or any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals; or ,0 b. while such of any device the breas t, mentioned; or employee or person encourages or permits the wear or use or covering exposed to view which resembles or simulates genitals, anus or other portion of the body above c. while such employee or person permits or encourages any person to perform or simulate the performance of sexual intercourse, sodomy, oral copulation, flagellation, masturbation/bestiality or other acts prohibi ted by law; or \, d. while such employee or person encourages or permits any person to use artificial devices or inanimate objects to depict any of the prohibited activities herein described; or e. while such employee or person encourages or permits any person on the licensed premises to touch, caress or fondle the breasts, buttocks, anus or genitals of any other person; or f. while such employee or person encourages or permits any of the behavior, conditions or acts hereinabove set forth by any other person or persons. Section 1200 Page 6 Hopklns City Code (Revised Dec. 2004) 1200.42, Subd. 4 . Subd. 4. Character. A license may not be issued to a person not a citizen or resident alien of the United States and a licensee shall be of good moral character and repute. A license may not be issued to any person who shall hereafter be convicted of any willful violation of any law of the United States or the State of Minnesota or of any local ordinance with regard to the manufacture, sale, distribution or possession for sale or distribution of intoxicating liquor, nor to any person whose license under this section shall be revoked for any willful violation of any such laws or ordinances. Subd. 5. Training. Each licensee must have at least one representative attend all mandatory liquor license training seminars conducted by the city. The representative need not be the same person each time but must hold a position of responsibility in either the ownership or management of the licensee. (Added by Ord. 2004-938) 1200.44. Additional conditions of intoxicating liquor licenses and the operation of licensed premises. Subdivision 1. The following acts or conduct on licensed premises deemed and decreed to be contrary to public welfare and morals and, therefore, no on sale liquor license shall be operated, maintained or allowed at, in or on any premises where such acts or conduct are permitted or tolerated. No licensee shall employ, permit or encourage any person or employee in or on any such licensed premises in or under any of the following circumstances: a. while such employee or person costume or clothing as to expose any the top of the areola, or any portion the buttocks, vulva or genitals; or is unclothed or in such attire, portion of the female breast below of the pubic hair, anus, cleft of b. while such of any device the breast, mentioned; or employee or person encourages or permits the wear or use or covering exposed to view which resembles or simulates genitals, anus or other portion of the body above c. while such employee or person permits or encourages any person to perform or simulate the performance of sexual intercourse, sodomy, oral copulation, flagellation, masturbation/bestiality 9r other acts prohibited by law; or d. while such employee or person encourages or permits any person to use artificial devices or inanimate objects to depict any of the prohibited activities herein described; or e. while such employee or person encourages or permits any person on the licensed premises to touch, caress or fondle the breasts, buttocks, anus or genitals of any other person; or f. while such employee or person encourages or permits any of the behavior, conditions or acts hereinabove set forth by any other person or persons. Section 1200 Page 6 Clty or Hopklns (Revised Sept 2003) 1200.46 Subd. 2. Whenever the term "person" 1S used in this section, it is intended to mean and shall include but not be limited to, any host, hostess, other employer or employee, customer or spectator and all provisions of this section shall apply equally to both sexes. 1200.46. Hours of operation. Subdivision 1. No sale of 3.2 percent malt liquor may be made between 1:00 a.m. and 8:00 a.m. on the days of Monday through Saturday, nor between 1:00 a.m. and 12:00 noon on Sunday, except as stated in Section 1200.46, Subd. 4. (Amended by Ord 2003-906) Subd.2. Intoxicating liquor; on-sale. No sale of intoxicating liquor for consumption on the licensed premises may be made: (1) between 1:00 a.m. and 8:00 a.m. on the days of Monday through Saturday; (2) after 1:00 a.m. on Sundays, except as provided by section 1200.46, Subd. 3. (Amended by Ord 2003-899) except as stated in Section 1200.46, Subd. 4. (Amended by Ord 2003-906) Subd. 3. Intoxicating liquor; Sunday sales; on-sale. A licensee that holds a special Sunday on-sale intoxicating liquor license may sell intoxicating liquor for consumption on the premises in conjunction with the sale of food between the hours of 10:00 a.m. on Sundays and 1:00 a.m. on Mondays except as stated in Section 1200.46, Subd. 4. (Amended Ord 2003-906) Subd. 4. When a licensee has made application to the City of Hopkins and the Commissioner of Alcohol and Gambling for extended hours, and the appLication has been approved by the Hopkins City Council and the Co~lssioner of Alcohol and Gambling, and all fees have been paid to the City of Hopkins and the Commissioner of Alcohol and Gambling, said licensee may sell intoxicating liquor, wine, or 3.2 percent malt liquor between 1:00 a.m. and 2:00 a.m. on Friday, Saturday and Sunday and the following holidays: 1. between 1:00 a.m. and 2:00 a.m. on January 1 2. between 1:00 a.m. and 2:00 a.m. November 1 3. between 1:00 a.m. and 2:00 a.m. on March 18 4. between 1:00 a.m. and 2:0Q a.m. on December 24 6. between 1:00 a.m. and 2:00 a.m. on Thanksgiving Day a). Fees for extended hours will be set from time to time in Chapter 10 of the Hopkins City Code by resolution. b). Section 1200.46, Subd. 4 will be in effect until June 30, 2004, at which time Hours of sale will be as stated in 1200.46, Subdivisions 1, 2, and 3. (Added by Ord 2003-906) Subd. 5. Intoxicating liquor; off-sale. No sale of intoxicating liquor may be made by an off-sale licensee: 1. on Sundays; 2. before 8:00 a.m. on Monday through Saturday; 3. after 8:00 p.m. on Monday through Thursday and after 10:00 p.m. on Friday and Saturday. An off-sale licensee may sell intoxicating liquor until 10:00 p.m. on December 31 and July 3, and on the day preceding Thanksgiving day, unless otherwise prohibited. 4. on Thanksgiving Day; Section 1200 Page 7 City of HopkIns (Revised Sept 2003) 1200.48 5. on Chr~strnas Day, December 25; or 6. after 8:00 p.m. on Christmas Eve, December 24. (The following paragraph has exclusions) 1200.48. Evacuation of Licensed Premises. Subdivision 1. No licensed premises named in an ON SALE Intoxicating Liquor License shall remain open for business more than 15 minutes after the closing time stated in section 1200.46, Subd. 2 or section 1246, subd. 4 of this Ordinance. It is unlawful for a licensee or an employee of a licensee to permit any person, other than a licensee or an employee, to remain on said licensed premises more than 15 minutes after closing time. It is also unlawful for any person, not a licensee or employee of a licensee, to remain on said licensed premises more than 15 minutes after closing time. Subd. 2. No licensee or employee of a licensee shall consume alcohol or permit the consumption of alcohol on the premises after closing as. stated in section 1200.46, Subd. 2 and Subd. 4. (Added by Ord 2003-699) (Amended by Ord 2003-906) 1200.50. License Revocation or Suspension. MN Statute 340A.415, License Revocation or Suspension, is adopted by reference. Amended by Ord. 98-819 1200.54. Presumptive Civil Penalties. Subdivision 1. Purpose. The purpose of this section is to establish a standard by which the City Council determines the length of license suspensions and the propriety of revocations, and shall apply'to all licensed premises under this Chapter. These penalties are presumed to be appropriate for every case; however, the Cou~~il may deviate in an individual case where the Council finds that there exi~t substantial reasons making it more appropriate to deviate, such as, but not limited to, a licensee's efforts in combination with the State or City to prevent the sale of alcohol to minors. When deviating from these standards, the Council will provide written findings that support the penalty selected. Subd. 2. Minimum Penalties for Violations. The minimum penalties for convictions or violations must be presumed as follows: a. The following violatiorl~\require revocation of the license on the first violation: . Commission of a felony related to the licensed activity. . Sale of alcoholic beverages while license is under suspension. Best Practices Establishments. Establishments entering into an agreement with the Police Department as a Best Practices Establishment will use the Best Practices grid. b. The following violations are subject to the penalty below: . Sale of alcoholic beverage to . Sale of alcoholic beverage to . Sale/consumption of alcoholic . Illegal gambling on premises. grid described under-age person. obviously intoxicated beverage before/after person. hours. Section 1200 Page 6 City of Hopklns (Revised Sept 2003) 1200.48 5. on Christ:nas Da~y', December 25; or 6. after 8:00 p.m. on Christmas Eve, December 24. (The following paragraph has exclusions) 1200.48. Evacuation of Licensed Premises. Subdivision 1. No licensed premises named in an ON SALE Intoxicating Liquor License shall remain open for business more than 15 minutes after the closing time stated in section 1200.46, Subd. 2 or section 1246, subd. 4 of this Ordinance. It is unlawful for a licensee or an employee of a licensee to permit any person, other than a licensee or an employee, to remain on said licensed premises more than 15 minutes after closing time. It is also unlawful for any person, not a licensee or employee of a licensee, to remain on said licensed premises more than 15 minutes after closing time. Subd. 2. No licensee or employee of a licensee shall consume alcohol or permit the consumption of alcohol on the premises after closinq as. stated in section 1200.46, Subd. 2 and Subd. 4. (Added by Ord 2003-899) (Amended by Ord 2003-908) 1200.50. License Revocation or Suspension. MN Statute 340A.415, License Revocation or Suspension, is adopted by reference. Amended by Ord. 98-819 1200.54. Presumptive Civil Penalties. Subdivision 1. Purpose. The purpose of this section is to establish a standard by which the City Council determines the length of license suspensions and the propriety of revocations, and shall apply'to all licensed premises under this Chapter. These penalties are presumed to be appropriate for every case; however, the Coun~il may deviate in an individual case where the Council finds that there exi~t substantial reasons making it more appropriate to deviate, such as, but not limited to, a licensee's efforts in combination with the State or City to prevent the sale of alcohol to minors. When deviating from these standards, the Council will provide written findings that support the penalty selected. Subd. 2. Minimum Penalties for Violations. The minimum penalties for convictions or violations must be presumed as follows: a. The following violatiori~~require revocation of the license on the first violation: . Commission of a felony related to the licensed activity. . Sale of alcoholic beverages while license is under suspension. Best Practices Establishments. Establishments entering into an agreement with the Police Department as a Best Practices Establishment will use the Best Practices grid. b. The following violations are subject to the penalty below: . Sale of alcoholic beverage to . Sale of alcoholic beverage to . Sale/consumption of alcoholic . Illegal gambling on premises. grid described under-age person. obviously intoxicated beverage before/after person. hours. Section 1200 Page e Ci ty of Hopkins (Added Dec. 2004) 1200.548 . Permit person to leave premises with alcoholic beverage (on-sale allowing off-sale) . . Violations of City Ordinances pertaining to fire, building, or health codes. 1 'c Violation $500 plus 4 days suspension 2no Violation $1,000 plus 6 days suspension 3ro Violation $2,000 plus 10 days suspension 4 '" Violation Revocation BEST PRACTICES 1'0 Viola tion $500 PENALTY GRID: 2no Violation $1,000 plus 5 days suspension, stayed 3ro Violation Return to regular penalty grid and off Best Practices for 1 year. Subd. 3. First violations would be handled by an administrative hearing with the Police Chief or his/her designee with the presumptive penalty given to license holders. For Best Practices establishments first and second violations would be handled by an administrative hearing with the Police Chief or his/her designee. Hearings shall take place immediately following the violation. License holders have the right to request a hearing before the City Council if not in agreement with the presumptive penalty. The Police Chief also has the right to request a hearing before the Council if he/she believes there exists substantial reason making it appropriate to deviate from the presumptive penalty. If the Police Chief and the licensee agree on the presumptive penalty, these will be reported to the City Council in a staff report. ,0 , Subd 4. Suspensions. Suspensions will commence on the same day of the week as the occurrence of the violation. Unless specified, numbers indicate consecutive days' suspension during regular business hours. Subd. 5. Computation of Time. For the purpose of determining the number of occurrences of violations, the Council shall consider a violation as a second occurrence if it occurred within 24 calendar months of the first violation; and shall consider a violation as a third occurrence if it occurred within 36 calendar mon~hs of the second violation. (1200. 54_Added by Ord 2004-938) 1200.57. Other Penalties. Nothing in this section shall restrict or limit the authority of the Council to suspend up to 60 days, revoke the license, assess a civil fine not to exceed $2,000, to impose conditions or take any adverse action in accordance with law, provided that the license holder has been afforded an opportunity for a hearing.__(Added by Ord 2004-938) Section 1200 Page 9