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Alcohol License ViolationsMasterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Alcohol License Violations DATE: March 30, 2011 Dubuque hitd Ad- Amrulcacnll 2007 In April of 2009, the City Code was amended to allow for the prosecution of a liquor licensee, permittee, or employees of a licensee or permittee for selling alcohol to persons under the legal age. The City now handles both the criminal and civil sides of liquor license violations. The Police Department conducts compliance checks on businesses that hold liquor licenses or permits. The compliance checks involve sending minors into establishments to attempt the purchase of alcohol. If the minors are successful in purchasing alcohol, the employee receives a simple misdemeanor criminal citation. Once the criminal citation has been issued, the Police Department waits for a conviction before proceeding to levy the civil penalties and suspensions against the licensee or permittee. Assistant City Attorney Crenna Brumwell worked with the Police Department and City Manager's Office to develop a hybrid system of suspensions and penalties which allows for discretion in offering pleas, but at the same time continues to hold businesses accountable for violations. The Violation Options are as follows: Option #1 Option #2 Option #3 Fine /Suspension Fine /Suspension Fine /Suspension Fine /Suspension 1st Violation $500 or 14 days None None None 2nd Violation $1,500 and 30 days $5,000, 30 -day suspension (with 16 days suspended), and probation period $7,500, 30 -day suspension (with 23 days suspended), conditions, and probation period $15,000, 30 -day suspension (with 30 days suspended), conditions, and probation period 3rd Violation $1,500 and 60 days $15,000, 60 -day suspension (with 30 days suspended) conditions, and probation period None None 4th Violation Revocation None None None Masterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Alcohol License Violations DATE: March 30, 2011 Dubuque hitd Ad- Amrulcacnll 2007 In April of 2009, the City Code was amended to allow for the prosecution of a liquor licensee, permittee, or employees of a licensee or permittee for selling alcohol to persons under the legal age. The City now handles both the criminal and civil sides of liquor license violations. The Police Department conducts compliance checks on businesses that hold liquor licenses or permits. The compliance checks involve sending minors into establishments to attempt the purchase of alcohol. If the minors are successful in purchasing alcohol, the employee receives a simple misdemeanor criminal citation. Once the criminal citation has been issued, the Police Department waits for a conviction before proceeding to levy the civil penalties and suspensions against the licensee or permittee. Assistant City Attorney Crenna Brumwell worked with the Police Department and City Manager's Office to develop a hybrid system of suspensions and penalties which allows for discretion in offering pleas, but at the same time continues to hold businesses accountable for violations. The Violation Options are as follows: Crenna Brumwell is recommending adoption of the modified liquor license penalties, which includes a system of escalating fines and suspension options for licensees and permittees upon violation. I concur with the recommendation and respectfully request Mayor and City Council approval. MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Crenna Brumwell, Assistant City Attorney Mark Dalsing, Chief of Police Michael C. Van Milligen THE CITY OF DUB1j MEMORANDUM Masterpiece on the Mississippi CRENNA M. BRUMWELL, ESQ. ASSISTANT CITY ATTORNEY To: Michael Van Milligen City Manager DATE: March 30, 2011 RE: Alcohol License Violations In April of 2009, the City Code was amended to allow for the prosecution of a liquor licensee, permittee, or employees of a licensee or permittee for selling alcohol to persons under the legal age. The City now handles both the criminal and civil sides of liquor license violations. The Police Department conducts compliance checks on businesses that hold liquor licenses or permits. The compliance checks involve sending minors into establishments to attempt the purchase of alcohol. If the minors are successful in purchasing alcohol, the employee receives a simple misdemeanor criminal citation. Once the criminal citation has been issued, the Police Department waits for a conviction before proceeding to levy the civil penalties and suspensions against the licensee or permittee. The current civil penalties are as follows: Liquor License Violation Penalties The civil penalties for violations, pursuant to Iowa Code §123.50, include: • 1 Violation: Civil penalty in the amount of five hundred dollars ($500.00). Failure to pay the civil penalty results in automatic suspension of the license or permit for a period of fourteen (14) days. • 2 Violation (within two (2) years): A thirty (30) day suspension and a civil penalty in the amount of one thousand five hundred dollars ($1,500.00). • 3rd Violation (within three (3) years): A sixty (60) day suspension and a civil penalty in the amount of one thousand five hundred dollars ($1,500.00). • 4 Violation (within three (3) years): Revocation of the license or permit. OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944 TELEPHONE (563) 589 -4381 / FAx (563) 583 -1040 / EMAIL cbrumwel @cityofdubuque.org Human error is inevitable; it is surprising how often identification is checked and incorrect math or vision leads to selling to a minor. There are times when I, as a prosecutor, would like to offer an individual a plea agreement. However, under the current policy of refraining from pursuing the civil penalties prior to a criminal conviction, it makes offering a plea impossible. Additionally, there are unique situations within the community that call for a different type of approach. In the case of liquor licenses, any business under one roof is traditionally covered by one liquor license. For example, in the case of a hotel with a bar and /or restaurant on -site, a violation resulting in suspension of a liquor license not only affects the bar and /or restaurant, but also affects any hotel guests, convention attendees, and banquet business. Conferences, weddings, banquets, citizens, and ultimately tourism could be negatively impacted under this "one roof' policy. Current situations exist at the Holiday Inn Downtown, Champps /Midway Motor Lodge, Hotel Julien, Days Inn /Spirits Lounge, Diamond Jo Casino, Mystique Casino, Hilton Garden lnn/Houlihan's, Grand Harbor Resort and Hotel, Clarke University, and Loras College, to name a few. In working with the Police Department and City Manager's Office the goal was to develop a hybrid system of suspensions and penalties which allows for discretion but at the same time continues to hold businesses accountable for violations. First, in the course of researching and preparing this memorandum, I was informed by the Alcoholic Beverages Division (ABD) that multiple businesses under one roof may seek separate licenses from the state. Karen Freund of the ABD Regulatory Compliance Division indicated that she works with license holders to navigate the process of obtaining multiple licenses for different entities under one roof and clarifies how the rules apply to this type of licensing scheme. I gather that the process to obtain multiple licenses can be complicated and time consuming. Second, representatives from the Police Department and I have discussed local ordinances and enforcement with the ABD. According to the ABD, if the violations are processed under a local ordinance, the local authority can set the parameters for resolving the violations. For example, the local authority (e.g. City of Dubuque) could require payment of a higher civil penalty, and provide options related to the suspension. The local authority could impose the suspension, but also suspend the suspension, similar to suspensions for criminal charges. The local authority could also attach strings to the suspension of the suspension such as requiring one or a combination of the following conditions: • No further violations for the duration of the current liquor license • Wrist bands for patrons over twenty -one years of age • TIPS training for all employees • Purchasing of ID scanners • Scanning all ID's If an establishment failed to comply with the terms imposed or a violation of the agreement was discovered during the probationary period, the suspension would be reinstated immediately. Another option available would be to allow the establishment twelve (12) months to serve the suspension with the establishment picking the time frame within which to serve the suspension. We also sought an opinion from the Assistant Attorney General who represents the ABD. The Attorney was of the opinion that the local agency was limited in its ability to "impose" fines in excess of the statutory limits, but at the same time indicated that the state has done just that as part of its own settlement negotiations. No formal opinion was received; the information was simply discussed over the telephone. It is my opinion and interpretation of the Code of Iowa that the local agency can adopt fines in excess of the statutory limits as long as it is not "imposing" them but rather is providing an alternative to licensees and permittees to the statutory penalties. This is not less restrictive than the Code of Iowa; and the City is operating within its home rule authority. The attached ordinance includes the Code of Iowa penalties for violations as well as additional options with a system of escalating fines and suspension options for licensees and permittees upon violation. I have also attached a policy to distribute to licensed businesses which explains the breakdown of a license suspension acceptable to the Police Department. The ultimate goal of alcohol compliance checks is to ensure compliance. The more time the City spends working with the licensed establishments and requiring establishments to use the tools available to them for reducing human error, the better. In conclusion, I am proposing the adoption of the modified liquor license penalties in the attached ordinance. cc: Mark Dalsing, Chief of Police Prepared by: Crenna M. Brumwell, Esq. 300 Main Street Suite 330 Dubuque IA 52001 563 589 -4381 ORDINANCE NO. 29 -11 AMENDING THE CITY OF DUBUQUE CODE OF ORDINANCES TITLE 4 BUSINESS AND LICENSE REGULATIONS, CHAPTER 2 LIQUOR CONTROL, ARTICLE B LIQUOR, BEER, AND WINE LICENSES AND PERMITS BY REPEALING SECTIONS 4 -2B -15 SUSPENSION AND REVOCATION GENERALLY; GROUNDS AND 4 -2B -16 SUSPENSION AND REVOCATION; SPECIFIC TERMS, AND ADOPTING NEW SECTIONS 4 -2B -15 SUSPENSION AND REVOCATION GENERALLY; GROUNDS AND 4 -2B -16 SUSPENSION AND REVOCATION; SPECIFIC TERMS IN LIEU THEREOF, PROVIDING FOR THE SUSPENSION AND REVOCATION OF ALCOHOLIC BEVERAGE LICENSES AND THE PENALTIES AND REMEDIES FOR VIOLATIONS NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. Section 4 -2B -15 of the City of Dubuque Code of Ordinances is amended to read as follows: 4- 2B -15: Suspension and Revocation Generally; Grounds. A. In addition to the penalties in this Article, the city council may suspend a license or permit issued pursuant to this Chapter for a period not to exceed one (1) year, revoke the license or permit, or impose a civil penalty. Before suspension, revocation, or imposition of a civil penalty, the licensee or permittee must be given written notice and an opportunity for a hearing. B. A license or permit issued under this Chapter may be suspended or revoked or a civil penalty may be imposed on the licensee or permittee for any of the following: 1. Misrepresentation of any material fact in the application for the license or permit. 2. Violation of any of the provisions of this Chapter. 3. Any change in the ownership or interest in the business operated under a class A, class B, or class C liquor control license or any wine or beer permit, which change was not previously reported to and approved by the local authority and /or the Alcoholic Beverages Division. 4. Any event which would have resulted in disqualification from receiving the license or permit when originally issued. 5. Any sale, hypothecation, or transfer of the license or permit. 6. The failure or refusal on the part of the licensee or permittee to render any report or remit any taxes when due to the Alcoholic Beverages Division under this Chapter. C. A criminal conviction is not a prerequisite to suspension, revocation, or imposition of a civil penalty pursuant to this Section. D. The city council may suspend any retail wine or beer permit or liquor control license for a violation of this Chapter or Chapter 123 of the Code of Iowa. E. The city manager and the city attorney may enter into an agreement with the licensee or permittee for the days for which a licensee or permittee may serve a suspension of a license or permit. Section 2. Section 4 -2B -16 of the City of Dubuque Code of Ordinances is amended to read as follows: 4- 2B -16: Suspension and Revocation; Specific Terms. A. The conviction of any liquor control licensee or wine or beer permittee for a violation of any of the provisions of this Chapter is grounds for the suspension or revocation of the license or permit by the Alcoholic Beverages Division or the City. However, if any liquor control licensee or any wine or beer permittee is convicted of any violation of the Code of Iowa, the liquor control license or wine or beer permit must be revoked and must be immediately surrendered by the holder and the bond of the licensee or permittee must be forfeited to the Alcoholic Beverages Division. B. If any licensee, wine or beer permittee, or an employee of such licensee or permittee is convicted of a violation of this Chapter or Chapter 123 of the Code of Iowa, the City must, in addition to the other penalties fixed for such violations of this Section, assess a penalty as follows: 1. First Violation: The licensee or permittee must pay a civil penalty in the amount of five hundred dollars ($500.00) or serve a fourteen (14) day suspension of the license or permit. Failure to pay the civil penalty will result in automatic suspension of the license or permit for a period of fourteen (14) days. 2. Second Violation (within a period of two (2) years): The licensee or permittee must: a. Pay a one thousand five - hundred dollar ($1,500) civil penalty and serve a thirty (30) day suspension of the license or permit; however, in lieu of the fine and suspension, the licensee or permittee may: (1) Pay a five thousand dollar ($5,000) civil penalty and serve a thirty (30) day suspension of which sixteen (16) days will be suspended, on the condition that the licensee or permittee receive no further violations for a twelve (12) consecutive month probationary period. If there is a violation within the twelve (12) month probationary period, upon service of notice by the City, the sixteen (16) days which were suspended must be served by the licensee or permittee as agreed upon by the Chief of Police; or, (2) Pay a seven thousand five - hundred dollar ($7,500) civil penalty and serve a thirty (30) day suspension of which twenty - three (23) days will be suspended, on the condition that the licensee or permittee receive no further violations for a twelve (12) consecutive month probationary period, together with two (2) of the following conditions selected by the licensee or permittee with the approval of the Chief of Police: i. Terminate the employee who acted illegally. ii. Purchase and use identification scanners for use on all alcohol sales. iii. All employees at the time of the violation who may serve alcohol and continue their employment with the licensee or permittee must be trained in Training for Intervention Procedures (TIPS) or other training approved by the City within ninety (90) days and all new employees hired within two (2) years who may serve alcohol must receive training within thirty (30) days of their hire date. iv. Use wristbands for patrons twenty -one (21) years of age and older. v. Hire staff to check the identification of all patrons as they enter the establishment for days of the week and hours as determined by the Chief of Police. vi. Purchase, install, and use a system which scans photo identifications and records a photograph of the identification and the individual using the identification to secure entrance into the business, or other electronic system as approved by the Chief of Police. vii. Such other conditions as agreed upon between the licensee or permittee and the Chief of Police. If there is a violation within the twelve (12) month probationary period, upon service of notice by the City, the twenty -three (23) days which were suspended must be served by the licensee or permittee as agreed upon by the Chief of Police; or, (3) Pay a fifteen thousand dollar ($15,000) civil penalty and serve a thirty (30) day suspension of which thirty (30) days will be suspended, on the condition that the licensee or permittee receive no further violations for a twelve (12) consecutive month probationary period, together with three (3) of the following conditions selected by the licensee or permittee with the approval of the Chief of Police: i. Terminate the employee who acted illegally. ii. Purchase and use identification scanners for use on all alcohol sales. iii. All employees at the time of the violation who may serve alcohol and continue their employment with the licensee or permittee must be trained in Training for Intervention Procedures (TIPS) or other training approved by the City within ninety (90) days and all new employees hired within two (2) years who may serve alcohol must receive the training within thirty (30) days of their hire date. iv. Use wristbands for patrons twenty -one (21) years of age and older. v. Hire staff to check the identification of all patrons as they enter the establishment for days of the week and hours as determined by the Chief of Police. vi. Purchase, install, and use a system which scans photo identifications and records a photograph of the identification and the individual using the identification to secure entrance into the business, or other electronic system as approved by the Chief of Police. vii. Such other conditions as agreed upon between the licensee or permittee and the Chief of Police. If there is a violation within the twelve (12) month probationary period, upon service of notice by the City, the thirty (30) days which were suspended must be served by the licensee or permittee as agreed upon by the Chief of Police. 3. Third Violation (within a period of two (2) years): The licensee or permittee must: a. Pay a one thousand five hundred dollar ($1,500) civil penalty and serve a sixty (60) day suspension of the license or permit; however, in lieu of the fine and suspension, the licensee or permittee may: (1) Pay a fifteen thousand dollar ($15,000) civil penalty and serve a sixty (60) day suspension of which thirty (30) days will be suspended, on the condition that the licensee or permittee receive no further violations for a twelve (12) consecutive month probationary period, together with the following conditions: i. Terminate the employee who acted illegally. ii. Purchase and use identification scanners for use on all alcohol sales. iii. All employees at the time of the violation who may serve alcohol and continue their employment with the licensee or permittee must be trained in Training for Intervention Procedures (TIPS) or other training approved by the City within ninety (90) days and all new employees hired within two (2) years who may serve alcohol must receive the training within thirty (30) days of their hire date. iv. Use wristbands for patrons twenty -one (21) years of age and older. v. Hire staff to check the identification of all patrons as they enter the establishment for days of the week and hours as determined by the Chief of Police. vi. Purchase, install, and use a system which scans photo identifications and records a photograph of the identification and the individual using the identification to secure entrance into the business, or other electronic system as approved by the Chief of Police. vii. Such other conditions as agreed upon between the licensee or permittee and the Chief of Police. If there is a violation within the twelve (12) month probationary period, upon service of notice by the City, the thirty (30) days which were suspended must be served by the licensee or permittee as agreed upon by the Chief of Police. 4. Fourth Violation (within a period of two (2) years): The licensee's or permittee's liquor control license or wine or beer permit must be revoked. C. For purposes of the probationary period in (B)(2) and (B)(3), the reinstatement of the suspension does not require a conviction. Attest: Section 3. This Ordinance takes effect upon publication. Passed, approved and adopted the 4th day of April , 2011. eanne F. Schneider, City Clerk Roy D. ol, Mayor Liquor license suspensions may be broken down into smaller increments per City Council direction to staff. Suspensions may be broken down into the following increments: 10 -Day Suspension • One (1) period of at least five (5) consecutive days, provided the period includes a Friday and a Saturday • Remaining days may be broken into two (2) and three (3) consecutive day increments 14 -Day Suspension • One (1) period of at least seven (7) consecutive days • Remaining days may be broken into two (2) and three (3) consecutive day increments 30 -Day Suspension • One (1) period of at least fourteen (14) consecutive days • Remaining days may be broken into two (2) and three (3) consecutive day increments OR OR • One (1) period of at least nine (9) consecutive days, provided the period includes two (2) Fridays and two (2) Saturdays • Remaining days may be broken down into three (3) consecutive day increments 60 -Day Suspension Liquor License Suspensions • One (1) period of at least twenty -one (21) consecutive days • Remaining days may be broken into three (3) consecutive day increments • One (1) period of at least sixteen (16) consecutive days, provided the period includes three (3) Fridays and three (3) Saturdays • Remaining days may be broken down into four (4) consecutive day increments