RES 2012-44 - 14937RESOLUTION NO. 2012 -44
A RESOLUTION DENYING A MANAGERIAL LIQUOR LICENSE FOR
EMILY LOUISE DIRK
WHEREAS, the City of Fridley, Minnesota, regulates the sale of intoxicating liquor in
establishments located within the City, pursuant to the authority granted to it under Minnesota
Statutes Section 340A, by ordinance, specifically Section 603 of the Fridley Municipal Code;
and
WHEREAS, Fridley City Code Section 603.20.1 requires that a manager of on sale intoxicating
liquor establishments obtain a managerial license from the City and states:
No person shall work as a manager of a premises licensed under this Chapter, and
no licensee shall permit any such person to be so employed, unless such person,
within seven (7) days after first being so employed, shall apply for a license to
engage in such business. No persons may be so employed for any length of time if
their license is denied or revoked.; and
WHEREAS, on March 12, 2012, the City of Fridley received a managerial license application,
dated March 6, 2012, from Emily Louise Dirk (the "Applicant ") for her employment as a
manager at Rob Did It Again, Inc. dba Chris & Rob's Chicago Taste Authority, which holds a
3.2% Malt Liquor and Wine License from the City of Fridley; and
WHEREAS, City Code Section 603.20.4 provides applicants with the right to appeal a denial of
a managerial license and it states:
If the Police Department makes a recommendation that the license not be issued,
the applicant, upon request, shall be entitled to a hearing before the City Council
and may offer evidence to prove the license should be issued.; and
WHEREAS, the Fridley Police Department conducted a background investigation as set forth in
and required by Fridley City Code Section 603.20.4; and
WHEREAS, the Applicant was convicted of a Misdemeanor, Issue Dishonored Check — Value
Not More Than $250, on June 7, 2011 (See Exhibits 1, 2, and 3, which are the Misdemeanor
Complaint, Petition to Enter Plea of Guilty in Misdemeanor Case Pursuant to Rule 15, and
Order, respectively); and
WHEREAS, the Applicant was convicted of a Felony, Theft — Take/Use /Transfer Movable
Property — No Consent, on January 24, 2012 (See Exhibits 4, 5, and 6, which are the Criminal
Complaint, Petition to Enter Plea of Guilty in Felony Case Pursuant to Rule 15, and
Order/Warrant of Commitment, respectively); and
Resolution No. 2012 - 44 Page 2
WHEREAS, with respect to the Felony theft conviction Anoka County District Court imposed a
condition that the Applicant "Can't hold a job that has a fiduciary responsibility." (See Exhibit
6); and
WHEREAS, with respect to the Felony theft conviction Anoka County District Court imposed a
condition that the applicant pay $18,050 restitution to Merritt & Lynette Frisbie and $1,890.39
restitution to Lincoln Pawn (See Exhibit 6); and
WHEREAS, Fridley City Code Section 603.20.6 states that:
Any license issued hereunder may be revoked for any violation of this Chapter or
of Minnesota Statutes Sections 340.07 through 340.40 or for conviction of any
crime or misdemeanor involving moral turpitude.; and
WHEREAS, the power to revoke based upon the conviction of any crime or misdemeanor
involving moral turpitude includes the right to deny a license on such grounds as well; and
WHEREAS, while moral turpitude is undefined in the Fridley City Code or Minnesota State
Statute, Black's Law Dictionary (6th Ed. 1990) defines "moral turpitude" as an "[a]ct of baseness,
vileness or the depravity in private and social duties which man owes to his fellow man, or to
society in general, contrary to accepted and customary rule of right and duty between man and
man," and as an "[a]ct or behavior that gravely violates moral sentiment or accepted moral
standards of (the) community.... "; and
WHEREAS, based upon the results of the background investigation, the Fridley Police
Department recommended denial of the Applicant's managerial license; and
WHEREAS, in an April 19, 2012 letter, the City notified the Applicant of the denial of her
managerial license and provided information regarding the right to appeal the managerial license
denial pursuant to Fridley City Code Section 603.20.4 (See Exhibit 7); and
WHEREAS, in a May 20, 2012 letter, the Applicant requested an appeal of the denial of her
managerial license (See Exhibit 8); and
WHEREAS, by mutual agreement of the City and the Applicant, the appeal hearing was
scheduled for July 9, 2012 at 7:30 in Council Chambers, located at 6431 University Avenue N.E,
Fridley, MN; and
WHEREAS, the City Clerk has had numerous communications with both the Applicant and Rob
Dubnecay of Chris & Rob's Chicago Taste Authority, the liquor licensee, regarding scheduling
of and confirmation of the July 9, 2012 appeal hearing (see Exhibits 9); and
WHEREAS, on June 27, the City Clerk sent notice of the hearing to the Applicant (see Exhibit
10); and
Resolution No. 2012 - 44
Page 3
WHEREAS, on July 9, 2012, the City Council conducted an appeal hearing regarding the denial
of managerial license for the Applicant; and
WHEREAS, Minn. Stat. § 364.03, subd. 1 provides that "no person shall be disqualified from
public employment, nor shall a person be disqualified from pursuing, practicing, or engaging in
any occupation for which a license is required solely or in part because of a prior conviction of a
crime or crimes, unless the crime or crimes for which convicted directly relate to the position of
employment sought or the occupation for which the license is sought." ; and
WHEREAS, Minn. Stat. § 364.03, subd. 2 states that "[i]n determining if a conviction
directly relates to the position of public employment sought or the occupation for which
the license is sought, the hiring or licensing authority shall consider:
(1) the nature and seriousness of the crime or crimes for which the
individual was convicted;
(2) the relationship of the crime or crimes to the purposes of regulating the
position of public employment sought or the occupation for which the license is
sought;
(3) the relationship of the crime or crimes to the ability, capacity, and fitness
required to perform the duties and discharge the responsibilities of the position
of employment or occupation.; and
WHEREAS, Minn. Stat. § 364.03, subd. 3(a) and (b) state that:
(a) A person who has been convicted of a crime or crimes which directly
relate to the public employment sought or to the occupation for which a
license is sought shall not be disqualified from the employment or
occupation if the person can show competent evidence of sufficient
rehabilitation and present fitness to perform the duties of the public
employment sought or the occupation for which the license is sought.
Sufficient evidence of rehabilitation may be established by the production
of:
(1) a copy of the local, state, or federal release order; and
(2) evidence showing that at least one year has elapsed since
release from any local, state, or federal correctional institution
without subsequent conviction of a crime; and evidence
showing compliance with all terms and conditions of
probation or parole; or
(3) a copy of the relevant Department of Corrections discharge
order or other documents showing completion of probation or
parole supervision.
(b) In addition to the documentary evidence presented, the licensing or
hiring authority shall consider any evidence presented by the applicant
regarding:
Resolution No. 2012 - 44
(1) the nature and seriousness of the crime or crimes for which
convicted;
(2) all circumstances relative to the crime or crimes, including
mitigating circumstances or social conditions surrounding the
commission of the crime or crimes;
(3) the age of the person at the time the crime or crimes were
committed;
(4) the length of time elapsed since the crime or crimes were
committed; and
(5) all other competent evidence of rehabilitation and present
fitness presented, including, but not limited to, letters of
reference by persons who have been in contact with the
applicant since the applicant's release from any local, state, or
federal correctional institution.
Page 4
NOW, THEREFORE BE IT RESOLVED by 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 each and all of the foregoing exhibits, Exhibit 1 through 14 are incorporated
herein as a part of the record of these proceedings.
3. That Fridley City Code Section 603.17 states
No person shall work as a manager of a premises licensed under this
Chapter, and no licensee shall permit any such person to be so employed,
unless such person, within seven (7) days after first being so employed,
shall apply for a license to engage in such business. No persons may be so
employed for any length of time if their license is denied or revoked.
4. Fridley City Code Section 603.20.6 states:
Any license issued hereunder may be revoked for any violation of this
Chapter or of Minnesota Statutes Sections 340.07 through 340.40 or for
conviction of any crime or misdemeanor involving moral turpitude.
5. The power to revoke a license based upon a conviction of a crime or misdemeanor
involving moral turpitude includes the power to deny a license on those grounds.
6. The Applicant's conviction for Misdemeanor Theft — Issue Dishonored Check —
Value Not More Than $250 is a crime of moral turpitude, as it is a crime of
dishonesty and violates accepted moral standards in the community.
Resolution No. 2012 - 44
Page 5
7. The Applicant's conviction for Felony Theft — Take/Use /Transfer Movable Property
— No Consent is a crime of moral turpitude, as it is a crime of dishonesty and violates
accepted moral standards in the community.
8. The Applicant's Misdemeanor Theft and Felony Theft convictions demonstrate that
the Applicant is untrustworthy or otherwise unqualified to act under the authority
granted by a managerial license.
9. The State of Minnesota and the City of Fridley regulate the sale of liquor and require
licensure of premises, license holders, and managers to minimize societal
consequences associated with the irresponsible dispensing of alcoholic beverages.
10. A manager acts on behalf of and for the benefit of the liquor licensee and is required
to enforce the liquor laws of the State of Minnesota and the liquor ordinances of the
City of Fridley. Among the responsibilities placed on managers are preventing the
sale or provision of alcoholic beverages to minors and obviously intoxicated persons,
sales outside established hours, and accurate reporting of liquor /alcoholic beverage
sales. All of these societal and legal expectations necessarily depend upon managers
knowing and adhering to the laws and regulations regarding the sale of
liquor /alcoholic beverages.
11. The Misdemeanor Theft conviction and particularly the Felony Theft conviction
are serious crimes involving dishonesty and deceit to intentionally and
wrongfully obtain goods or funds.
12. Enforcement of the State and City liquor regulations requires the ability to recognize
and obey such regulations and the Applicant's recent criminal convictions cast
significant doubt on her ability to recognize, obey, and enforce laws.
13. The Applicant's record of criminal convictions, including the very recent one for
Felony Theft, creates significant doubt that she can be relied upon to exercise the
significant responsibilities placed upon a licensed manager to keep herself and her
employees in compliance with State laws and City regulations.
14. Very little time has lapsed since Applicant's commission of the Felony Theft, which
was charged by formal complaint May 16, 2011, and the Applicant's March 12, 2012
request for a manager's license. The Applicant pled guilty to Felony Theft on
November 14, 2011 and was subsequently sentenced on her Felony Theft conviction
on January 24, 2012.
15. The Applicant is currently on supervised probation for a period 10 years to Anoka
County Corrections until January 24, 2022.
16. Among the terms and conditions of the Applicant's felony theft probation are the that
she:
Resolution No. 2012 - 44 Page 6
A. "[c]an't hold a job that has a fiduciary responsibility. "; and
B. pay $18,050 restitution to Merritt & Lynette Frisbie and $1,890 restitution
to Lincoln Pawn.
17. Black's Law Dictionary, 6th ed. defines "fiduciary duty" as "[a] duty to act for
someone else's benefit, while subordinating one's personal interests to that of the
other person. It is the highest standard of duty implied by law (e.g. trustee,
guardian)."
18. The position of manager naturally involves fiduciary responsibilities as she must act
on behalf of and for the benefit of the liquor licensee.
19. The Applicant's Misdemeanor Theft and Felony Theft convictions cast doubt on her
ability to subordinate her personal interests to those of her employer, a liquor licensee
that could be subject to liability for violation of State and City liquor regulations, and
the public and act for the benefit of both.
20. The Misdemeanor Theft and Felony Theft convictions, which are crimes of
dishonesty, raise grave concerns regarding the Applicant's ability to exercise the
significant responsibilities placed upon a licensed manager to keep herself and her
employees in compliance with State and City liquor regulations, which are intended
to protect the public.
21. The Felony Theft involved a significant amount of cash, as well as valuable property
(jewelry and collectible coins).
22. The Applicant has not presented evidence of mitigating circumstances or social
conditions surrounding her crimes that sufficiently outweighs the strong interests of
the City and the public in enforcement of State and city liquor regulations.
23. The Applicant was of sufficient age and understanding at the time of the commission
of both the Misdemeanor Theft and Felony Theft crimes and, consequently, such
crimes cannot be characterized as indiscretions of youth.
24. Less than four months lapsed between the Applicant's guilty plea in connection with
the Felony Theft and her application for a manager's license, which is too short of a
time to adequately demonstrate rehabilitation.
25. Given the significant public safety concerns and considerations associated with
alcohol and the necessity for trustworthiness and reliability with respect to liquor law
and ordinance enforcement, the Applicant's recent record of crimes of dishonesty cast
doubt on her ability to do so now.
26. The Applicant has not provided sufficient evidence of rehabilitation.
Resolution No. 2012 - 44 Page 7
27. It is not in the interests of public safety to issue the Applicant a managerial license.
28. That the applicant has not submitted facts set forth in Minnesota Statute Section
364.03, Subd. 3a(1) through (3) as evidence.
BE IT FURTHER RESOLVED THAT based on these findings, the City Council of the City of
Fridley hereby denies Emily Louise Dirk a managerial license required by Fridley City Cade
Section 603.20.1 as allowed by Fridley City Cade Section 603.20.6.
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THIS 9th
DAY OF JULY 2012.
Scot(/'J. Lund, Mayor
Attest:
4-44vno�
Debra A. Skogen,6tity Clerk