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Denying the Licensee's motion for Stay of Enforcement of the 10- day Suspension of Tobacco Shop License and Administrative Costs filed on October 9, 2023: In the Matter of Tobacco Shop License Held by Amira Grocery d/b/a Winnipeg Grocery for the Premises Located at 864 Rice Street.
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WHEREAS, on October 4, 2023, the Saint Paul City Council considered and adopted Resolution 23-1381 which adopted the Findings of Fact, Conclusions of Law, and Recommendations of the Administrative Law Judge that were presented by the City of Saint Paul and imposed Administrative Costs on the Licensee; and
WHEREAS, the Recommendation of the Administrative Law Judge was that the Licensee violated St. Paul Legislative Code § 324.07(j) and was subject to the presumptive penalty found in St. Paul Legislative Code § 324.10(b)(2); and
WHEREAS, on October 09, 2023, the Licensee filed a Motion for Stay of Enforcement of the 10-Day Suspension of Tobacco Shop License and Administrative Costs, arguing in that:
1. Licensee has been operating Winnipeg Grocery, Inc. for the past three years and has a stellar record of compliance with city ordinances and no tobacco related violations. Accordingly, a stay poses little or no danger to public safety. Winnipeg Grocery provides a necessary community service as a grocery store. Loss of revenue from tobacco sales risks depriving patrons the benefits provided through the sale of groceries. A suspension of his tobacco license, moreover, harms Licensee's positive reputation in the community that he has worked diligently to earn over the past years.
2. The financial impact on Licensee of denying a stay is both obvious and serious. A 10-day suspension and the imposition of costs poses an excessive financial hardship on Licensee who relies on the revenue derived from the sale of tobacco products to drive the sale of groceries and other store merchandise. The 10-day suspension effectively closes the entire store, causing loss of pay for not only store employees, but a sub lessee who also depends on the foot traffic tobacco sales generates to sustain his sales.
3. There is little risk that any delay in enforcement will impair the City of Saint Paul's enforcement of the violation or collect administrative costs. A stay also ensures that Licensee can obtain effective relief if he prevails on appeal.
WHEREAS, there is no path for reconsideration of RES 23-1381 as it was signed by the Mayor on October 5, 2023, and is deemed final; and
WHEREAS, under Minn. Stat. § 14.65, the City Council has the power to grant a stay and impose reasonable terms and conditions that are proper for the security of the rights of the City of Saint Paul; and
WHEREAS, RES 23-1381, herein incorporated as Exhibit 14, and the record supporting it, herein incorporated as Exhibits 1-13, support the determination that no conditions could be added to the license that would adequately protect the health and safety of the citizens as, even with the license conditions in existence; and
WHEREAS, the Administrative Law Judge found that:
The bags of prohibited tobacco products were behind the cash register area. This is the same area of the store from which Licensee sold tobacco products.
The prohibited items were flavored products, with packaging identifying flavors such as Honey, Dark Stout, Max Pineapple, Cream, and Dutch Sweet Fusion Red, as well as mentholated Newport cigarettes. There was no dispute at hearing that the quantity of flavored products found behind the Licensed Premise’s cash register area was too much for personal use.
The physical findings were consistent with the complaint received - that flavored tobacco products were being sold out of a bag kept behind the cash register.
The Licensee’s story that, Mr. Galloway dropped the bags of prohibited products behind the register before proceeding to his deli, is not credible. If the bags were his and intended for his possession only, he would have carried them back to his part of the Licensed Premises.
Given the amount of prohibited products found, their proximity to other legitimate tobacco products being sold and their proximity to the cash register, it is reasonable to conclude that they were behind the cashier’s counter to be sold.
WHEREAS, council exercised its discretion and removed the matter from the council agenda for an informational update and discussion which reflects the thoughtful consideration that Council gave the matter; and
NOW, THEREFORE, BE IT RESOLVED, that the City Council denies the Motion for a Stay Pending Appeal based on the above stated reasons as well as all of the information contained in RES 23-1381 and the supporting council file which is incorporated by reference, and which demonstrates that no terms and conditions could be added to the licenses of the Tobacco Shop License held by Amira Grocery d/b/a Winnipeg Grocery that would adequately protect the health and safety of the City and its citizens.