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HomeMy WebLinkAboutCity Council Minutes 03-29-1993 Special 11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 HEARING TO CONSIDER REVOCATION OR SUSPENSION OF OFF -SALE LIQUOR LICENSE OF KENNY'S LIQUOR, INC., 12 NATHAN LANE, WITH RESPECT TO LIQUOR LAW VIOLATION, PUBLIC HEARING IN FRONT OF PLYMOUTH CITY COUNCIL Transcript of proceedings before the Plymouth City Council, Plymouth City Hall, 3400 Plymouth Boulevard, in the city of Plymouth, commencing at 8:40 p.m. on March 29th, 1993. APPEARANCES: Laurie Rauenhorst, City Clerk John Edson, Councilmember Maria Vasiliou, Councilmember Allen D. Barnard, Esq., Substitute City Attorney Kim Bergman, Mayor Dwight Johnson, City Manager Carole Helliwell, Councilmember Craig Gerdes, Director, Department of Public Safety Officer Scott Streachek, Plymouth Police Department William Melin, on behalf of Kenny's Liquor, Inc. David Blood, on behalf of Kenny's Liquor, Inc. ORIGINAL REPORTED BY: STACI WILLIAMS, RPR OLIVER, MITCHELL & MAVES REPORTING 1028 NORTHSTAR EAST 608 SECOND AVENUE SOUTH MINNEAPOLIS, MINNESOTA 55402 612) 339-7593 OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 2 Whereupon, the following proceedings were duly had: MAYOR BERGMAN: I'd like to reconvene the meeting, please. The next item tonight is a public hearing to consider revocation or suspension of the off -sale liquor license of the Kenny's Liquors at 12 Nathan Lane with respect to a liquor law violation. With that I can just turn it over to the city attorney. I guess this is not a public hearing. MR. BARNARD: That's correct. MAYOR BERGMAN: Tell me how it works. MR. BARNARD: Although it's listed as a public hearing, technically this kind of proceeding by law is considered an administrative hearing. And it's basically a judicial -like process, and the requirements in law are for each side to have a full opportunity for a hearing before this body, the city council, and the city council then has the opportunity to make a decision about the license. And it's shown in the agenda as a hearing to consider revocation or suspension of the off -sale liquor license of Kenny's Liquor, Inc., 12 Nathan Lane with respect to liquor law violation. I've asked Staci Williams, a court reporter, to be present and to report this OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING Whereupon, the witnesses were duly sworn under oath.) MR. BARNARD: In this kind of a of conduct the proceeding in the sense of acting my job in any way to make any decisions about the 3 proceeding, so it's only to make sure everyone has a full opportunity to be heard. Typically the proceeding begins by having the director of the Department of Public Safety make a presentation by the officer or officers who were involved state the facts as they know them and then give the other side the opportunity to cross-examine and to make any presentation they wish, then to give each side the opportunity to make a short closing statement if they wish, and that closes the hearing and then the city council can make whatever decision they're OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING Ell empowered to by law. So if we can begin by the director, please. MR. GERDES: Mr. Mayor, Council Members, Mr. Attorney, the city council passed a resolution establishing this hearing on July 27th, 1992, and this hearing is in relationship to a violation that occurred on July 27th, 1992, a sale to a minor. Officer Scott Streachek from the Plymouth Police Department is here to testify to his observations at the time of that sale. I've provided to the council -- MR. BARNARD: Can I interrupt you one minute. When you say a name, since this is being reported, you should spell the name. MR. GERDES: For the record, I am Craig Gerdes, G -e -r -d -e -s, I'm the director of public safety for the City of Plymouth, and I referenced Officer Scott Streachek. And, Scott, the spelling of your name? OFFICER STREACHEK: It's S -t -r -e -a -c -h -e -k. MR. BARNARD: Sorry to interrupt you. MR. GERDES: No problem. Thank you. Officer Streachek, as I mentioned, will report on the events of that evening, and I have provided for OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 5 the council in their packet a listing of previous violation involving Kenny's Market. Although these violations occurred prior to my hiring for the City of Plymouth, they are a matter of record in the City of Plymouth and I have located them within the records and files of the City of Plymouth. OFFICER STREACHEK: Good evening, Mayor, Council Members. Again, I'm Officer Streachek with the City of Plymouth. The matter in question was July 27th, 1992, it was approximately 1223 hours when I was patrolling the Nathan Lane, 12 Nathan Lane lot. I observed a young male exit the Kenny's Liquor store. I also observed a younger female, I would estimate her age to be in her teens, high school age, peeking around a corner waiting for this male to come towards her. I approach -- I exited my squad and approached these two. I asked for identification of the male who had exited the liquor store and had a bottle of alcohol with him. He couldn't provide any type of Minnesota driver's license, any picture identification. He just verbally identified himself. That was as a Ryan Alexander. I asked for his date of birth, I asked for some type of physical identification. He had provided me with a temporary or application for OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 0 identification with the Minnesota Identification Card. This identification when questioning him was determined that his actual age was 20 instead of 21. I had given, went back into the Kenny's liquor and asked the clerk there if he had purchased or gave, sold alcohol to this individual. He had stated yes. I asked if he had any type of picture ID. The clerk had stated no, and he gave as a rebuttal that the manager or owner by the name of Bill had sold alcohol to this individual previously and thought it was okay. I had cited the minor with possession, also procuring and false identification, and I had cited the clerk for the selling. MR. BARNARD: I think someone from the City should outline then what happened with the legal proceeding. MR. GERDES: The matter of the citation was forwarded to the court, and if you'll excuse me for a second, there was a court decision with regard to the violation, and a guilty plea, and the finding of the court was a suspended sentence based on no future violations by the individual who was cited. MR. BARNARD: That was a misdemeanor charge of illegally selling alcohol to a minor? OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 7 MR. GERDES: That is correct. MR. BARNARD: Okay. Unless there's something else from the City, the representatives of Kenny's, Inc. who are here have the right to ask questions or cross-examine the two representatives of the City, or if they don't wish to do that, they can go ahead and make their own statement at this time. MR. MELIN: Mayor, ladies and gentlemen of the council, my name is William Melin, M -e -1 -i -n. I'm here on behalf of Kenny's this evening, and I'd just like to say that these are truly unfortunate circumstances that brings us together this evening. Again I, this is the first time I've gone through something like this so I am a bit nervous. I would just like to say that on the 26th, Friday, I received the recommendations that you've decided for, that you would like to decide for in favor of Kenny's or not in favor of Kenny's. I guess what I'd like to say is first I'd like to mention that the gentleman Ryan that had purchased had provided us with a falsified ID in the past. Again, you know, not using this as an excuse but just hopefully appealing to your understanding that we did at least make an attempt in the past to OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING Since 1987 it is our What we had felt would be in that's there consistently. And I guess what I'm looking for or what I'm asking for is your understanding or cooperation in making it possible for us to make a smooth sale, a smooth transition of ownership from ourselves to another party. And I far as whether it be a suspension or a fine, I guess I was hoping that whoever does make the final determination would see it clear in their hearts to maybe forego it, with us selling the location. We are in process right now of selling the location to another individual that, once he is approved for his liquor license, will be buying the location. I guess again what I'm appealing to is your sense of, be it business or be it economy, if we are able to sell the location to this other party, per your permission I should say, we don't lose any taxable income for the City. We're not the -- another gentleman is able to go into business and start a business for himself that way, and also we're not in OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING E a situation where we lose revenue where we're, say, fined $4,000 or the equivalent of making four mortgage payments with no income coming in. I guess that's our position. And I don't, I also would like to ask for some clarification. Is this meeting the meeting that will determine what happens? MR. BARNARD: This is the meeting in which the council will either decide, or they could postpone the deciding, but this is the administrative hearing on the liquor license. MR. MELIN: Okay. I guess, you know, I just hope that you'd, you know, you know, given our past record or whatnot, I would just hope that you would considerably favor helping us in selling the location to someone that can be on-site to be more demanding about the IDs and the carding, allowing this transaction to go without a suspension or a fine. And again thank you for your time. MS. HELLIWELL: Mayor, can I ask questions? now? MR. BARNARD: Sure. MS. HELLIWELL: Do you have a buyer Yes, we do. He is He has already gone OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 10 through the paperwork or the steps to get involved with it. Currently he has been at the liquor store getting familiar with the operations and learning what there is to know about it. That gentleman -- MS. HELLIWELL: So the bank loan is being processed then at this point or whatever he needs to do to establish business? MR. MELIN: Yes, whatever he needs to do to establish business has or is in process of being taken care of. MS. HELLIWELL: What is the date that you feel that this person would be able to assume the business or purchase the business? MR. MELIN: Approval, licensing approval -- as a matter of fact, the gentleman is here this evening if you'd like to meet him, but we, you know, pending licensing approval -- and also the contingency on the sale of the business is he is not in a position where the location is shut down, loss of revenue, as all of you could probably imagine, if the location is shut down for a period of time, customers that would frequent it for convenience purposes may find another location to start frequenting, so that's why we are, you know, asking for your cooperation I guess. OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 11 MR. BARNARD: Do you wish to have someone else speak or make any other statement? MR. MELIN: I don't believe so. MR. BARNARD: Another gentleman stood up with you and took the oath. MR. MELIN: I again, because this is something that is unfamiliar to myself, I spoke with David, the gentleman that is looking to purchase, the future or prospective owner, to attend this evening just so he, if necessary, can meet you guys or so you guys could get a feel for what is happening. MR. BARNARD: Do you have any other questions or statements you'd like to make? MR. MELIN: No. MR. BARNARD: Okay. MR. MELIN: Thank you. MR. BARNARD: Do the City representatives have any other statements? MR. GERDES: I have not yet seen any applications come through our office. I defer to the city clerk perhaps to see if there's been an application with the City yet. MS. RAUENHORST: We have not received an application. OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 12 MR. GERDES: Based on the request of the individual, I think they need to become aware of the needs of the City's application process to proceed on it. MR. BARNARD: This gentleman with his hand up, is he the prospective buyer? MR. MELIN: Right. If I may -- or go ahead, David. MR. GERDES: That was mostly as a point of information for them so they proceed appropriately. MR. MELIN: Yeah, that's I guess what we're asking for, so we do it properly. MR. BLOOD: Good evening. My name is David Blood, B -1 -o -o -d, and the reason -- his question -- the application of everything is done except for the use and sales tax ID number. That isn't, hasn't been permitted to me yet, and again I just ask that the, you consider not closing Kenny's down because it will, it will hurt and affect the future business I do there. MR. BARNARD: Okay. Is there anything further from either side? If not, I'll submit it back to the Mayor and the council. MR. EDSON: I guess I do have one OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING question, and that is can you explain what the current ownership is? MR. MELIN: It is Kenny's until licensing is granted for David. MR. EDSON: And you refer to having somebody local operate it, you know, buy it and operate it. now? Kenny's. 13 MR. MELIN: That would be David. MR. EDSON: Are you one of the owners MR. MELIN: I'm supervisor for MR. EDSON: And that's not local? You have how many locations? MR. MELIN: It's a corporation. We have 25 separate locations, both be it grocery, gas and liquor. MR. EDSON: Okay. MS. VASILIOU: Mr. Mayor? MAYOR BERGMAN: Yes? MS. VASILIOU: I would like to move the resolution imposing the penalty for liquor law violation against Kenny's and that resolution as provided in our packet would be for a ten-day suspension, and the license holder would be given OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 14 the option of the additional 20 days suspension or 4,000 fine to the City of Plymouth, and if there is a second, I would like to speak to it. MR. EDSON: I will second. MS. VASILIOU: Mr. Mayor, as an ongoing member of the Wayzata -Plymouth Area Health Commission, given the fact that this is the fourth incident of a sale to a minor, I believe that it in my situation -- to my way of thinking, a fourth incident at one location is not acceptable. One incident is not acceptable. I sympathize with the new owner. I don't believe that this will be a hardship. And that is the reason for my motion. In the past the history has been that the funds from the fine is paid to the City of Plymouth, and I believe it's used for DARE activities or alcohol-related education activities. The other process that has been used is that the fine has been shared among the four school districts. We have not done that the last couple of violations because of OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 15 the fact that we have the DARE drug program and we have been keeping the funds administratively, so I don't know if that is a policy. I know that's what the council has always done before is divide it up among school districts. So if it is a policy, I would like to divert from that policy and have the Public Safety Department retain the funds for the DARE drug program. MAYOR BERGMAN: So is that a separate motion? MS. VASILIOU: I guess it's just an administrative -- MS. RAUENHORST: As I recall, during the last violation you heard in 1990 there was a motion by the council that was in minutes that to set a future precedent it no longer, but I can also indicate that in this motion as well with the resolution. MAYOR BERGMAN: That's fine. Okay we have a motion and a second. Any more discussion? Roll call. MS. HELLIWELL: Mayor? MAYOR BERGMAN: Yes? MS. HELLIWELL: May I interject maybe a brief statement that I understand too that you're OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING Iry trying to sell the store, you're in the process of selling the store and, I don't know, if this had been, like, the first violation, you know, I think I would have been more sympathetic, but this really is the fourth violation. They seem to be running every two years, and I know it's very difficult with the picture ID, I just don't think you should sell MR. MELIN: And in light of all this business and do that but because we feel it's in everybody's best interest that somebody that is on -premise can do this. We are taking Rne infractions, and I guess what I would also like to address is, yes, it is unfortunate that we've had four previous, four total violations in the last seven years. Unfortunately, we have made these suspension and so forth, I would certainly hope we OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 17 could at least table the issue to a later date where we could have an attorney present and discuss this. MAYOR BERGMAN: Okay. MR. MELIN: Is that at all possible? MAYOR BERGMAN: We have a motion and a second so unless somebody wants to change the motion. MR. EDSON: I think that -- and I'm sympathetic to them selling, I think that they may have some legitimate, that may be a legitimate solution to this problem. You also have the choice here of, you know, there's a ten-day suspension and then an alternative of a 20 -day suspension or a 4,000 fine. And if you're truly interested in getting it sold, you can -- you know, the fine is a viable alternative instead of having it closed for 30 days. So I think there is some solution there. I think this is a serious situation and, you know, four times is not an acceptable record. MAYOR BERGMAN: I'd like to just for the public's information too, as I look through this report it's not like you're sending in sting operators, you're not sending in teenagers to buy. These are just happenstance when your fellows are cruising in the squad, is that correct, four OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 18 violations? OFFICER STREACHEK: Mayor, I was just patroling through the lot and I observed him, he did appear minor to me. MAYOR BERGMAN: So you can imagine the odds of picking up these violations this way. It's pretty unusual. I mean, you could sit at any liquor store for eight hours and may never have that happen to you. So, you know, good police work. But we do also have, did we send anybody in on those type of operations? MR. GERDES: Mr. Mayor, we're currently doing a tobacco -related operation of that nature, and when we complete that we will be doing a liquor operation of that nature. In those particular cases we do in fact send letters to the owners and operators that we will be doing a, quote -unquote, "sting" type operation. In this particular case, as Officer Streachek indicated, he was on routine patrol when he made his observations and subsequent citations. MAYOR BERGMAN: Okay. We have a motion and a second roll call. MS. VASILIOU: Mr. Mayor, one point of clarification. We do need to determine when the OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 19 ten-day suspension would be, and I guess I would, I defer to the city attorney. Mr. Barnard, would it be, like, immediately or what do you recommend? MR. BARNARD: You could set it to begin immediately. You also have to deal with the second, the 20 -day period because the resolution is stated in the alternative. I don't know if Public Safety would have had some specific time in mind. MR. GERDES: I think it would be reasonable, Your Honor, Members of the Council, to give the business owner an opportunity to prepare for this, and the date certainly could be set within reason, two to three days, and then at that determination on whether it's the 10 or 20 so -- or 30 or the fine based on their -- MS. VASILIOU: Since he is in the interest of selling his business, then perhaps it would be timely -- today is the 29th -- if maybe we said beginning April 1st for ten days? Is it ten business days? I mean, we're not open Sundays so does Sunday count? MR. BARNARD: It would be ten business days. MAYOR BERGMAN: He might be better off with an immediate, though, if he's going to have it OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 20 get over with. MS. VASILIOU: I don't know if they're prepared to close or not, and this is the point of the Public Safety Director Gerdes, if I understood correctly, so I guess I would make a substitute motion to begin the revocation on April 1st, 1993 and continue for ten business days, and the subsequent 20 days would be again on the 11th day if he so chooses to take that option. MAYOR BERGMAN: I'll second it. MR. MELIN: If I may, could I just on record say that I would appeal to somebody to at least make a motion to allow this issue to be tabled until the next meeting so we are able to discuss it at a different time with the actual owners involved with the situation as opposed to myself? MAYOR BERGMAN: I don't think anybody's interested to do that. MS. HELLIWELL: Mayor? MAYOR BERGMAN: Yes? MS. HELLIWELL: See, this is a very formal process. You know, I put a question to you: Why is the owner and the attorney and so on not here? I understand why you feel the need for an attorney, everybody needs one these days, but why OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 21 would you not have an attorney here today? MR. MELIN: The owner is presently out of town and we didn't realize that it was as formal as it was. Like I stated, I didn't receive the packet until Friday, and spoke with him on the phone, and at that point he just said, you know, talk to them and if, if need be, ask to have the issue tabled is what, is what was conferred to myself. And that's all I'm asking to do is to have the matter tabled and, you know, we can at that point when you guys resolve it, if you are willing to grant the license one way or the other, we can work that out with the new or the future owner of the location. MR. EDSON: Mayor? MAYOR BERGMAN: Yes? MR. EDSON: I think it's important to note, the clerk informs me that the hearing notice was mailed at least three weeks ago, that what he received on Friday was the council packet which we all received at the same time. So there was adequate notice of this hearing. MAYOR BERGMAN: We have a motion and second on the amended motion. Roll call. MS. RAUENHORST: Edson? OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING 22 MR. EDSON: Aye. MS. RAUENHORST: Vasiliou? MS. VASILIOU: Aye. MS. RAUENHORST: Helliwell? MS. HELLIWELL: Aye. MS. RAUENHORST: Bergman? MAYOR BERGMAN: Aye. Then we have a main motion. Roll call. MS. RAUENHORST: Edson? MR. EDSON: Aye. MS. RAUENHORST: Vasiliou? MS. VASILIOU: Aye. MS. RAUENHORST: Helliwell? MS. HELLIWELL: Aye. MS. RAUENHORST: Bergman? MAYOR BERGMAN: Aye. Record concluded at 9:05 p.m.) OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KENNY'S LIQUOR LICENSE HEARING REPORTER'S CERTIFICATE ss. 23 I hereby certify that I reported the foregoing proceedings of the Plymouth City Council on the 29th day of March, 1993, in Plymouth, Minnesota, and that the witnesses were by me first duly sworn to tell the whole truth; That the testimony was transcribed by me and is a true record of the proceedings; That I am not a relative or employee or attorney or counsel of any of the parties, or a relative or employee of such attorney or counsel; That I am not financially interested in the action and have no contract with the parties, attorneys, or persons with an interest in the action that affects or has a substantial tendency to affect my impartiality; WITNESS MY HAND AND SEAL THIS 1st day of April, 1993. STACI WILLIAMS Notary Public, Wright County, Minnesota My commission expires 6-27-96 rH N•Yµyyy SiPtt L. WILLIAMS } Gv2Y 96 OLIVER, MITCHELL & MAVES REPORTING 612) 339-7593