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3 Axel's Liquor ViolationThomas J. Campbell Roger N. Knutson Thomas M. Scott Elliott B. Knetsch Joel J. Jamnik Andrea McDowell Poehler Matthew K. Brokl* CAMPBELL KNUTSON Professional Association Attorneys at Law (651) 452-5000 Fax (651) 452-5550 Author's DO~ Dial: (651) 234.6215 E-mallAddress: rknutso~4aw, com August 6, 2003 John F. Kelly Matthew J. Fait Soren M. Mattick Marguerite M. McCarron (}ina M. Brandt CHANHASSEN MAYOR AND COUNCILMEMBERS Thomas A. Furlong, Mayor Bob Ayotte, Councilmember Steve Labaft, Councilmember Brian Lundquist, Councilmember Craig Peterson, Councilmember RE: AXEL'S LIQUOR LICENSE VIOLATION Dear Mayor and Councilmembers: Enclosed is a Stipulation of Facts and Ciwl Sanctions concerning Axel's. On June 6, 2003, the Sheriff's Department conducted a compliance check at Axel's. A bartender sold liquor to an underage person.. The Sheriff's report states: Whittenburg was the bartender who sold the liquor to the decoy. In Whittenburg's statement he told me that he asked the decoy for her identification, and the decoy told Whittenburg she did not have it, and would return to her car to get it. When the decoy got up to .leave, Whittenburg asked the decoy how old she was and the decoy told Whittenburg twenty-one. Whittenburg then told the decoy it was okay to have the drink. Although the sale was a violation of state statutes and City ordinances, the compliance check did not adhere to the required procedures for such checks. Section 10-36(b) of the Chanhassen City Code provides: Underage persons. If underage persons are used for compliance checks they shall not be guilty of unlawful possession of alcohol when such items are obtained as a part of a compliance check. No underage person used in compliance checks shall attempt to use a false identification misrepresenting the person's age, and all underage persons lawfully engaged in a compliance check shall answer all questions abut the person's age asked by the licensee or his or her employee and shall produce any identification for which he or she is asked. This ordinance provision is not mandated by state law, but is a sound practice that is consistent with state law. Any county ordinance would have no application in Chanhassen. Suite 317 · Eagandale Office Center * 1380 Corporate Center Curve · Eagan, MN 55121 Chanhassen Mayor and Councilmembers August 6, 2003 Page 2 The Stipulation entered into regarding fa~ure of the October compliance check provides that if there was a second violation a stayed 3-day suspension would have to be served. The presumptive penalty for a second violation is a 6-day suspension. The circumstances justify a departure from the presumptive penalties. The "decoy" should not have lied to the bartender. Based upon the circumstances, we recommend a $3,(XX) fine, a $500 donation to MADD, and that the October and June violations be deemed a single violation. RNK~m Enclosure CITY OF CHANHASSEN CARVER COUNTY, MINNESOTA IN RE: City of Chanhassen Liquor Licensing Complaint Against STIPULATION OF FACTS AND CIVIL SANCTION Charlie Rae Inc., d/b/a Axel's The City of Chanhassen, through its undersigned attorney, and Axel's, through its undersigned attorney, hereby agree and stipulate as follows: 1. Axel's Restaurant is licensed under Chanhassen City Code Chapter 10, Article II, to operate an on-sale liquor establishment at 560 West 78th Street in the City of Chanhassen, Minnesota. 2. On October 7, 2002, an employee of Axel's sold intoxicating liquor to an underage person on the licensed premises of Axel's in violation of Chanhassen City Code Section 10-47(a). The parties entered into a Stipulation of Facts and Civil Sanction concerning that violation which was approved by the Chanhassen City Council on January 13, 2003. 3. On June 6, 2003, an employee of Axel's allegedly sold intoxicating liquor to an underage person. The sheriff's report states: Whittenburg was the bartender who sold the liquor to the decoy. In Whittenburg's statement he told me that he asked the decoy for her identification, and the decoy told Whittenburg she did not have it, and would return to her car to get it. When the decoy got up to leave, Whittenburg asked the decoy how old she was and the decoy told 10746~ 1 Whittenburg twenty-one. Whittenburg then told the decoy it was okay to have the drink. 4. Section 10-36(b) of the Chanhassen City Code provides: Se Underage persons. If underage persons are used for compliance checks they shall not be guilty of unlawful possession of alcohol when such items are obtained as a part of a compliance check. No underage person used in compliance checks shall attempt to use a false identification misrepresenting the person's age, and all underage persons lawfully engaged in a compliance check shall answer all questions abut the person's age asked by the licensee or his or her employee and shall produce any identification for which he or she is asked. The circumstances surrounding the June 6th sale justifies a departure from the presumptive civil penalties set forth in Section 10-40 of the Chanhassen City Code. 6. Axel's shall pay the City a civil penalty of $3,000 and shall donate $500 to MADD by September 1, 2003. 7. The penalty set forth in paragraph 6 above replaces the stayed suspension set forth in the Stipulation of Facts and Civil Sanction entered into concerning the October 7, 2002 sale. 8. For purposes of calculating possible further civil penalties the October 7, 2002 and June 6, 2003 sales shall be deemed combined and shall collectively be considered one violation. 9. Axel's waives its fight to the hearing provided by Minnesota Statutes Section 340A.415 and Chanhassen City Code Section 10-39. 10. The civil sanction set forth in Section 6 is contingent upon the Chanhassen City Council's approval. If the City Council rejects the sanction agreed to in this Stipulation in favor of more severe sanctions, Axel's has the absolute fight to withdraw this Stipulation and its waiver of hearing and to have a hearing before the City Council. 107464 2 Dated: Dated: ,2003. ,2003. CAMPBEIJ~ KNUTSON Professional Association BY: Roger N. Knutson, #57186 Chanhassen City Attorneys 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, MN 55121 Telephone: (651) 452-5000 ORTMAN & ASSOCIATES Attorneys at Law BY: Raymond C. Ortman, Jr., # Attorneys for Axel's Restaurant 15600 Wayzata Boulevard Suite #208 Minnetonka, MN 55391 Telephone: (952) 476-2640 107464 3