Memo - Administrative Penalties- Tobacco Compliance Ordinance
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City ojCJfopkins
1010 :First Street sou.tfi . !JfopK.insJ 9vf9.l55343-7573 · pfwne: 612-935-8474 · :F~ 612-935-1834
MEMORANDUM
To:
Steve Mielke
From:
Wynn Curtiss
Date:
January 22,2001
Re:
Administrative Penalties - Tobacco Compliance Ordinance
This Memo is in response to your request for an opinion regarding the appropriateness of issuing
administrative citations pursuant to Hopkins Code Section 1155.17 to both an employee and a
licensee when the person making the illegal sale might be both an employee and the licensee.
Generally, the answer is that it depends on the legal status of the licensee.
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An individual person, no matter their relationship to the licensee, always is an individual person.
However, a licensee may be an individual person or a corporation or some other legal entity.
If the licensee is an individual person, and that individual person makes an illegal sale, it is my
opinion that you could not issue separate administrative citations to the same person, one for acting
as an individual and one for acting as the vicariously-liable licensee. If, however, an individual
makes an illegal sale and the license is held by another entity, it is my opinion that both the
individual who made the illegal sale and the licensee can be charged separately. Such separate
charges are permissible even if the licensee is the individual person's spouse or other relative or the
licensee is a corporation in which the individual owns some or all of the stock. So long as the
individual making the sale and the licensee constitute separate legal entities, it is my opinion that
both can be charged.
Please keep in mind, however, that a licensee cannot be held criminally liable for the acts of an
employee. A licensee can only be held civilly liable, and can only suffer a civil, administrative
penalty, for the act of an employee. Thus, under no circumstances could a licensee be charged with
a c~ violation unless the licensee was the individual that actually made the illegal sale.
In the case of Main street Market, the license is held by Todd Treichler, as an indnividual. Therefore,
in my opinion both the individual who made the illegal sale (his wife) as well as Mr. Treichler, as
the licensee, can be issued an administrative citation. If you have any further questions, please
contact me.
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WC
we/drs
OFFENSEnNCIDENT SUPPLEMENTAL SUP APR C
HOPKINS Sale of Tobacco to Children (Compliance REPORT A
POLICE DEPT. Checks s
MN0270900 COMPLAlNANTJDEFEJIDANT DATE OF ORIGINAL REPORT PAGE E
Multiple 2000/12/26 2 OF 2 #
J
HASSAN (DOB 1968/12/10). I explained to both the manager and the clerk that the incident could be 0
handled administratively or through the criminal courts. I also explained they would receive a letter from g
the Crime Prevention Specialist who was in charge of the compliance checks. I also advised both parties 1
1
it is necessary to card younger people purchasing tobacco. 5
o
3
At 1943 ours, I identified the clerk at Kenny's Market (520 North Blake Road) by Minnesota picture
driver's license as ANTHONY RAY ROHR (DOB 1978/10/05). At 1949 hours, I identified th~ clerk at
Knollwood Standard (595 North Blake Road) by Minnesota picture driver's license as MA TTHBW A YNE
SHAUGABY (DOB 1971/02119). At 2001 hours, I identified the clerk at Blake Grocery (108 North Blake
Road) by Minnesota picture driver's license as MOHAMED MAHMOUD ABDEL-KAREM (DOB
1977/05/17). At 2025 hours, I identified the bartender at the Legion (10 12 Avenue North) by Minnesota
picture driver's license as DUANE MICHAEL LINDQUIST (DOB 1952/10/06). At 2037 hours, I identified
the clerk at Mainstreet Market (1619 Mainstreet) by Minnesota picture driver's license as SHARIFA
ELARAJ- TREICHLER (DOB 1974/10/22). This clerk stated she sold the checker as "he had bought
.e~" At 2037 hours, I identified the clerk at Citigo (1702 Mainstreet) verbally as QAZI TAHIR NAEEN
(DOB 1958/10/05). At 2050 hours, I identified the clerk at Holiday (300 11 Avenue South) verbally as
COREY BRANDON KNUTSON (DOB 1984/03/04).
For more information regarding the results of the compliance checks, see reports by Connie Kurtz and
Sgt. Klingbeil.
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DATE
2000/12/26
REPORTING I
OFFICER Renee A. Meuwissen
HOPKINS POLICE DEPARTMENT
TOBACCO COMPLIANCE CHECK
BUYER REPORT
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Butch's Mainstreet Market
1617 Mainstreet
Hopkins MN 55343
Date / z \ 2:" ~ 0 0
Time 2{) :3 7
Case# 00//563
3/36
Buyer's Name_
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Cirde appropriate an-sweffOFeaCfH;luestion.
3.
Seller infonnatlon:
Male . ~
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1.
Purchase results: .
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No purchase made
Purchase with 10
Clothing description R J l:k-t : ~ If &n/z" c;~ Iv 'f-.
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10/98
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Page 1 of2
\ Iinnesot;l Statutes 21)01), Table of Chapter)
Tqble of contents forChap~r:-l-Q ,
461.12 Municipal tobacco license.
subdivision 1. Authorization. A town board or the
governing body of a home rule charter or statutory city may
license and regulate the retail sale of tobacco as defined in
section 609.685, subdivision 1, and establish a license fee for
sales to recover the estimated cost of enforcing this chapter.
The county board shall license and regulate the sale of tobacco
in unorganized territory of the county and in a town or a home
rule charter or statutory city if the town or city does not
license and regulate retail tobacco sales. Retail
establishments licensed by a town or city to sell tobacco are
not required to obtain a second license for the same location
under the licensing ordinance of the county.
Subd. 2. Administrative penalties; licensees. If a
licenseecrr employee of a licensee sells tobacco to a person
under the" age' of 18 years, O'C violates' any' other provision of
this chapter, the licensee- shall' be' charged-anadrnin'istra'tivec
penaLty; 01:$75. An administrative penalty of $200 must be
imposed for a second violation at the same location within 24
months after the initial violation. For a third violation at
the same location within 24 months after the initial violation,
an administrative penalty of $250 must be imposed, and the
licensee's authority to sell tobacco at that location must be
suspended for not less than seven days. No suspension or
penalty may take effect until the licensee has received notice,
served personally or by mail, of the alleged violation and an
opportunity for a hearing before a person authorized by the
licensing authority to conduct the hearing. A decision that a
violation has occurred must be in writing.
Subd. 3. Administrative penalty; individuals. An
individual who sells tobacco to'a person under the age of 18
years must be charged an administrative penalty of $50. No
penalty may be imposed until the individual has received notice,
served personally or by mail, of the alleged violation and an
opportunity for a hearing before a person authorized by the
licensing authority to conduct the hearing. A decision that a
violation has occurred must be in writing.
Subd. 4. Minors. The licensing authority shall
consult with interested educators, parents, children, and
representatives of the court system to develop alternative
penalties for minors who purchase, possess, and consume
tobacco. The licensing authority and the interested persons
shall consider a variety of options, including, but not limited
to, tobacco free education programs, notice to schools, parents,
community service, and other court diversion programs.
Subd. 5. Compliance checks. A l.icensing,'authority
shall conduct unannounced compliance checks at least once each
calendar year at each 10cati..oIL where" tobac.cois sold to test
compliance with section 609.685. Compliance checks must involve
minors over the age of 15, but under the age of 18, who, with
O://www.revisor.leQstate mn 1I~/~tM~/Llh 1/1') hhnl
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JVI.C1 JI.i:1lUleS L.UUU, 401.12
the prior written consent of a parent or guardian, attempt to
purchase tobacco under the direct supervision of a law
enforcement officer or an employee of the licensing authority.
Subd. 6. Defense. It is an affirmative defense to
the charge of selling tobacco to a person under the age of 18
years in violation of subdivision 2 or 3 that the licensee or
individual making the sale relied in good faith upon proof of
age as described in section 340A.503, subdivision 6.
Subd. 7. Judicia1 review. Any person aggrieved by a
decision under subdivision 2 or 3 may have the decision reviewed
in the district court in the same manner and procedure as
provided in section 462.361.
HIST: 1941 c 242 s 3; 1941 c 405 s 3; 1951 c 382 s 1; Ex1959 c
73 s 2; 1973 c 123 art 5 s 7; 1982 c 572 s 2; 1997 c 227 s 4
Copyright 2000 by the Office of Revisor of Statutes, State of Minnesota.
ttP://www.revi~or)po..t<lt............n/n.._.._I..~."~ .
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Page 2 of2
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Sec. 4. Minnesota Statutes 1998, section 340A.702, is
amended to read:
340A.702 (GROSS MISDEMEANORS.]
It is a gross misdemeanor:
(1) to sell an alcoholic beverage without a license
authorizing the sale;
(2) for a licensee to refuse or neglect to obey a lawful
direction or order of the commissioner or the commissioner's
agent, withhold information or a document the commissioner calls
for examination, obstruct or mislead the commissioner in the
execution of the commissioner's duties or swear falsely under
oath;
(3) to violate the provisions of sections 340A.301 to
340A. 312;
(4) to violate the provisions of section 340A.508;
(5) for any person, partnership, or corporation to
knowingly have or possess direct or indirect interest in more
than one off-sale intoxicating liquor license in a municipality
in violation of section 340A.412, subdivision 3;
(6) to sell or otherwise dispose of intoxicating liquor
within 1,000 feet of a state hospital, training school,
reformatory, prison, or other institution under the supervision
and control, in whole or in part, of the commissioner of human
services or the commissioner of corrections;
(7) to violate the provisions of section 340A.502;
(8) except as otherwise provided in section 340A.701, to
violate the provisions of section 340A.503, subdivision 2,
clause (1) or (3);
(9) to withhold any information, book, paper, or other
thing called for by the commissioner for the purpose of an
examination;
(10) to obstruct or mislead the commissioner in the
execution of the commissioner's duties; ~
(11) to swear falsely concerning any matter stated under
oathi..-.QL
(12) to violate the provisions of section 340A.503,
subdivision 5, after havinq been convicted previouslY of
violatinq section 340A.503, subdivision 5.
Sec. 5. Minnesota Statutes 1998, section 609.685,
subdivision la, is amended to read:
Subd. la. [CROBE: rUBBl3l1BNJOn PENALTY TO SELL.] (a) Whoever
sells tobacco to a person under the age of 18 years is Quilty 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.
Sec. 6. Minnesota Statutes 1998, section 609.685,
subdivision 2, is amended to read:
Subd. 2. unSElBt1BUrOn OTHER OFFENSES.] Ji!l 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 paraqraph a subsequent time is
Quilty of a qross misdemeanor.
(b) A person under the aqe 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
aqe, is quiltv of a misdemeanor.
Sec. 7. Minnesota Statutes 1998, section 609.685,
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http://www.revisor.1eg.state.ron.us/slaws/2000/ c4 72.html
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