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Res 2002-57 Resolution No. 57 -2002 A RESOLUTION SUSPENDING TOBACCO LICENSE FOR JAMES NICKLOW AND THE SHOREWOOD RESTAURANT LOCATED AT 6161 HIGHWAY 65 NE WHEREAS, Minnesota State Statutes section 461.12, Subd. 1, authorizes a home rule charter city to license and regulate the retail sale of tobacco, as defined in Minnesota State Statutes section 609.685, subdivision 1, and WHEREAS,Minnesota State Statutes section 609.685 makes it a misdemeanor to sell tobacco to a person under the age of 18 and which allows for more stringent local regulation upon the adoption of a local ordinance; and WHEREAS,the City of Fridley adopted local Ordinance No. 1084 on November 25, 1996,now known as "Fridley City Code Chapter 12. Tobacco Products",that requires a license to sell tobacco products to an individual and establishment in the City of Fridley, and defines prohibited acts,penalties and consequences for any violation thereof; and WHEREAS Minnesota State Statutes Section 461.12, Subd. 5,requires a licensed authority to conduct unannounced tobacco compliance checks at least once each calendar year at each location where tobacco is sold to test compliance with Minnesota Statutes section 609.685; and WHEREAS,it has been the practice of the Fridley Police Department,in enforcing the aforesaid Ordinance,to conduct a minimum of two tobacco compliance checks a year for the past four years; and WHEREAS, as part of the usual practice and procedure of the City of Fridley, tobacco compliance checks were conducted in the City of Fridley on March 19, 2002,between the hours of 4:30 p.m. and 8:30 p.m., on each of the 34 licensees located within the City and 32 of the 34 were in compliance; and WHEREAS, on March 19,2002 at 6:30 p.m., a compliance check was done at the Shorewood Restaurant (and its employee Tammy Sue Bachman)and said licensee sold cigarettes to a minor acting on behalf of the City of Fridley as part of the compliance check process; and WHEREAS,the compliance check done at Shorewood on March 19, 2002, is documented in the Fridley Police Department Incident Report, Case#J02-55743,which is attached hereto and incorporated by reference; and WHEREAS, on March 26,2002,letters were mailed to Licensee James A.Nicklow and employee Tammy Sue Bachman at the Shorewood Restaurant at 6161 Highway 65,Fridley,Minnesota, 55432, notifying them of the first violation of the tobacco compliance check,penalty, and appeal process as required in Section 12.08 of the Fridley City Code; and WHEREAS, letters addressed to the City were received from James Nicklow and Tammy Sue Bachman dated April 4,2002,to Captain Lynne Tellers denying the allegation that the employee Tammy Sue Bachman and licensee James Nicklow Owner of the Shorewood Restaurant sold tobacco to a minor during a routine tobacco compliance check on March 19,2002 and notifying Captain Tellers to proceed with a formal complaint in this matter; and WHEREAS,letters from Captain Tellers to James Nicklow and Tammy Sue Bachman were written and mailed on April 9, 2002, clarifying the facts of the police report for the unsuccessful tobacco compliance Resolution No. 57-2002 Page 2 check occurring on March 19, 2002 thereby giving them another opportunity to appeal their case to an Administrative Hearing Officer to April 30,2002; and WHEREAS, letters from James Nicklow and Tammy Sue Bachman dated April 23,2002,to Captain Lynne Tellers and received on May 3,2002,again denied the allegations of the unsuccessful tobacco compliance check of March 19,2002; and WHEREAS on May 6, 2002,in a telephone call between Captain Lynne Tellers and James Nicklow,Mr. Nicklow again denied the allegation of having an unsuccessful tobacco compliance check and reiterated that the City should pursue the matter as needed; and WHEREAS, a letter dated August 21, 2002,to James Nicklow from Captain Lynne Tellers was hand delivered by Community Service Officer Zuehlke on August 23,2002,to Megan Foy at the Shorewood Restaurant in Mr.Nicklow's absence,notifying Mr.Nicklow of the City Council's intent to consider permanent revocation of his Tobacco License on September 9, 2002, as allowed by Fridley City Code Section 12.08.A.2.; and WHEREAS, on September 24, 2002, Captain Tellers spoke with Mr. Cosentino,Mr.Nicklow's son-in- law,on the telephone to advise him of the hearing and mailed a letter to Mr.Nicklow and Mr. Cosentino advising them the Council would review the tobacco license issue at the October 14, 2002, Council meeting via certified mail;and WHEREAS, Captain Tellers received signed receipts from the United States Post Office that the letters were delivered and signed for at the Shorewood Restaurant and by Mr. Cosentino 14 days prior to the meeting; and WHEREAS, employee Tammy Sue Bachman pled guilty to selling tobacco to a minor in Anoka County court on October 2,2002; and WHEREAS the City Council has the discretion to determine revoke or suspend the license based on Section 12.08,which provides that where the licensee fails to pay the fine, "the Council will suspend the license." NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Fridley after listening to all of the facts presented hereby makes the following FINDINGS OF FACT: 1. That each and all of the foregoing factual statements are true and correct and are incorporated herein as part of the findings of fact and record of these proceedings. 2. That the City of Fridley Police Department did act within the state law when conducting an unannounced tobacco compliance check as required by M.S.461.12, subd. 5; and 3. That licensee James Nicklow and Shorewood Restaurant did on March 19,2002, unsuccessfully complete the tobacco compliance check and sell tobacco products to a minor as reported in Fridley Incident Report Case#J02-55743; and 4. That a letter was mailed to the licensee of the unsuccessful tobacco compliance check of March 19, 2002,the City of Fridley administrative penalty and the process of appeal as described in Fridley City Code Section 12.07, 12.08 and 12.09, and Resolution No. 57-2002 Page 3 5. That based on the letters and telephone conversation between the licensee James Nicklow and Captain Lynne Tellers,the licensee voluntarily withdrew from the City of Fridley administrative proceedings; 6. That by the licensee voluntarily withdrawing from the process,Fridley City Code section 12.08.A.2. states that, "the City may permanently revoke the licensee's tobacco in accordance with law; and 7. That adequate notice was given to James Nicklow and the Shorewood Restaurant of the actions that would be taken by the City Council to review the status of the Shorewood Restaurant's tobacco license and consideration of possible revocation of the license. 8. That a letter dated September 24,2002,was received by the Shorewood Restaurant and Mr. Cosentino advising them the City Council would be reviewing their tobacco license on October 14,2002. 9. That Fridley City Code Section 12.08.H.provides that where the licensee fails to pay the fine, "the Council will suspend the license"and shall have the discretion to determine the length of time of any suspension under the City Code. BE IT FURTHER RESOLVED THAT based on these findings the City Council of the City of Fridley hereby suspends the Tobacco License to James Nicklow at the Shorewood Restaurant located at 6161 Highway 65 NE until December 31,2002 and such time thereafter until the$500 administrative penalty is paid as required by Fridley City Code Chapter 12. PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THIS 14TH DAY OF OCTOBER 2002. Sc aft J. und, i ayor Attess•• u-- Deera A. Skogen, City %'lerk v'