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HomeMy WebLinkAbout11B Liquor Compliance Check Violation - Underage Sale To: Honorable Mayor and City Council Members Jennifer Levitt, City Administrator From: Peter Koerner, Director of Public Safety Date: January 29, 2020 Subject: LIQUOR COMPLIANCE CHECK VIOLATION FROM NOVEMBER 22, 2019 BACKGROUND On November 22, 2019, the Cottage Grove Public Safety Department conducted liquor compliance checks of the Cottage Grove businesses holding liquor licenses by using an underage buyer, and the City Council held hearings on violations by four businesses at the January 15, 2020 regular meeting. During the hearing for Walmart Inc., DBA Walmart #2448, there were some questions about the compliance check as well as the procedure followed. On December 11, 2019 letters were mailed to each licensee that failed the compliance check requesting the presence of a representative to attend the January 15, 2020 City Council Meeting and respond to the allegation that their business sold liquor to an underage buyer. They were informed that if they admitted to the violation or failed to attend, staff would request Council to impose the scheduled penalty as outlined in our City Code and City Fee Table. In the event they denied the allegation, staff would request that a contested-case hearing be scheduled before an administrative law judge. Due to some questions raised during Walmart’s hearing, the representative from Walmart was asked to attend the February 5, 2020 City Council Meeting, where the hearing would be continued. PRESENTATION Director of Public Safety Peter Koerner will provide a presentation giving an overview of the alcohol compliance process and comparisons to other communities, followed by clarification of the Walmart compliance check conducted on November 22, 2019. SUMMARY OF COMPLIANCE PROCESS Cottage Grove Public Safety conducts two liquor compliance checks per calendar year which has been our practice for decades. We believe hiring, training, and supervising responsible staff is essential to keeping businesses in compliance with State Laws and City Ordinances regulating the sale of alcohol. We appreciate the effort businesses have put into this important part of their operations. Responsible alcohol sales are a respected part of our business community, and their efforts to help us keep alcohol out of the hands of youth are commendable. We will continue to regularly use alcohol compliance checks as a tool in our efforts to keep the City of Cottage Grove safe. Through cooperation in working together, we can make a difference. Sgt. Michael McCormick currently oversees the Compliance Check Officers and provided the summary on the procedure. In order to conduct these compliance checks, Cottage Grove Public Safety Officers recruit volunteers from the community that have an interest in Law Enforcement and want to help keep their community safe. The volunteers assist Officers by entering licensed establishments to verify they are complying with local and state laws. They are at least 18-years old, but under the age of 21. They must have a valid MN State-issued identification card or driver’s license that is current and has a picture. During alcohol compliance checks, the volunteer is accompanied by two Officers. Volunteer decoys are given the following instructions and actions are taken. • Arrive at the police department at a pre-determined date and time in normal everyday clothing that they wear. • Do not change their appearance in any way from their normal everyday appearance. • Pictures of their appearance are taken prior to conducting the compliance checks and saved for any case file that may be established from a violation. • Volunteers are instructed that if asked, they are to state their real age. • They are instructed that under no circumstances are they authorized to lie to an employee about who they are. • Volunteers are instructed to provide their MN State-issued identification (ID) or driver’s license (DL) that has their true age and identity only if asked for. • This ID or DL is reviewed and photographed by Officers prior to conducting the compliance checks. • A photo of the ID or DL is taken and uploaded to any case file that may be established from a violation. • The volunteer is then provided with a monetary note for payment in establishments. • This monetary note is photographed and saved for any violations that may occur to confirm a violation has occurred. The Minnesota Driver’s License states in bold yellow text “UNDER 21” and recently added a new orientation for Under-21 Cards. A vertical driver’s license or identification card is issued to anyone under the age of 21. This provides a quick reference that the cardholder is a minor. Vertical licenses and ID cards are currently used in 46 other states. • Under-18 and Under-21 indicators display below the portrait. • UNDER 18 UNTIL, with appropriate date, displays as black text in a yellow bar. • UNDER 21 UNTIL, with appropriate date, displays as white text in a red bar. Examples of both Minnesota driver’s licenses: Officers then leave the Police Department in an unmarked police department vehicle and visit establishments that have licenses to sell alcohol or tobacco within Cottage Grove. A list of forms is obtained through the Washington County Department of Public Health and Environment prior to conducting the checks. A form is completed for every establishment that is visited for the day with date, time, who went in, and descriptors of the employee. Upon arriving at an establishment, Officers instruct the volunteer to enter the establishment by themselves and try to purchase either alcohol or tobacco (depending on what compliance we are checking). Volunteers are not advised on a specific product to purchase due to the variety of products at different establishments. Volunteers are instructed if it is an alcohol sale at a restaurant, to send a message via cell phone to Officers that they were served an alcoholic beverage. If it is a liquor store or tobacco sale, volunteers are instructed to come directly back out to Officers in the vehicle and notify them of the sale. Volunteers are also instructed to obtain a receipt for the sale, if possible. If a sale occurs, Officers go into the establishment with the volunteer and ask them who sold them the alcohol. Once the volunteer identifies the person who conducted the sale, Officers identify themselves as Cottage Grove Police Department Compliance Check Officers. Officers ask the employee if they sold alcohol to the volunteer. Officers then ask for the employee to get the manager or person in charge at the time to notify them of the violation. The employee is asked what happened and why they sold alcohol to a minor. They are asked whether they asked for age or identification. After that the employee is notified that they’ll be receiving a citation via the mail for a misdemeanor offense of sale of alcohol to a minor. It is standard operating procedure to charge the employee under Cottage Grove City Code 3-12-13 instead of a gross misdemeanor charge under Minnesota Statute 340A.702.1. This is due to compliance checks being seen as an educational experience, and it is the Public Safety Department’s goal for every establishment to be complaint with State, County and City Codes. Officers ask the employee to provide them with the monetary note that was prerecorded from their cash till, which is documented as evidence. Officers return the change that the volunteer received back for the monetary note. This confirms that the volunteer provided a monetary note in exchange for the alcohol that they brought to Officers. Officers always ask if there are any questions for them from the employee or management prior to exiting the establishment. If there is any issue with what the volunteer did at the time of the transaction, this is the time where it would be brought up to Officers. Currently, Cottage Grove is following best practices that are consistent with other communities/agencies in Washington County. Sgt. Michael McCormick is currently reviewing and will make appropriate changes to the program. During the last Council Meeting, we were asked to consider a check list of the instructions given to the volunteer. Sgt. Michael McCormick created a Cottage Grove Police Department Participant Consent Alcohol and Tobacco Compliance Checks form that will be used in the future (attached). WALMART VIOLATION FACTS The following is a summary of the compliance violation that occurred on November 22, 2019 at approximately 7:07 p.m. at Walmart. The police report is attached. An image of the Minnesota Driver’s License will be shown at the meeting, but due to the private nature, will not be included with the packet. On November 22, 2019 the underage decoy went into the liquor store at Walmart at 9300 East Point Douglas Road. Officer Matt Sorgaard parked in a position to be able to view the attempted purchase. The volunteer selected a 6 pack of Bud Light and put it on the counter. The cashier rang up the purchase and asked the decoy for her identification. The decoy was 20-years old at the time with a birthday in mid-December. The decoy provided her MN DL which showed she was under 21. The cashier checked the MN DL, handed it back to the decoy, and completed the sale. It appeared the cashier scanned the MN DL as well. The decoy then went out and turned over the alcohol to the Officers. The cashier admitted to the Officers that she sold the decoy the alcohol. During the Council meeting, the representative from Walmart provided different information and was told there was a “bubble” on the identification. She believed that the cashier also asked the decoy for her birthday. Officers had taken a photo of her MN DL prior to the compliance checks, and when reviewed, there were no “bubbles.” Sgt. McCormick followed up with the decoy and asked additional questions to clarify, which have been documented in the police report. According to the decoy, she said the cashier seemed confused and scanned her MN DL with an age verification system. She was asked if she was born in 1998 to which she answered “yes.” STAFF RECOMMENDATION Allow the business representative for Walmart an opportunity to respond to the City Council regarding the liquor compliance check violation occurring November 22, 2019. If the representative admits to the violation or fails to attend, adopt Resolution 2020-013 imposing the scheduled penalty for the 1st violation in a 24-month period of a $500.00 fine and, in lieu of a one-day suspension, the participation of employees in an educational program approved by the Public Safety Director. If the representative denies the violation, schedule a contested-case hearing before an administrative law judge.