|Legal Opinion: |
Text of Document: August 23, 2002
Re: Beer board questions
Dear City Recorder,
I am in receipt of your fax dated August 21 concerning questions which have been raised by the Beer Board concerning a permit holder. You state that a part owner of a market which has a permit to sell beer recently sold beer to a minor and was charged and convicted for the offense. You provided a copy of the permit application, which was granted in December of 2000, and documents relating to the charges against Mrs. A. Each of the questions posed in your fax are addressed separately.
Does the beer board have to revoke the license since she is listed as a part owner of the business, or can they offer the civil penalty?
Section 8-214 of the Code permits the board to assess a civil penalty as an alternative to revocation of the permit. Since the permit was granted before the charges were brought, the application requirements are not at issue. The board may either revoke the permit or assess a penalty. It is important that whatever decision the board makes be consistent with the board’s decisions in prior, and in future, situations. This permit holder must be treated in the same manner other permit holders have been when such charges have been brought. I believe many beer boards assess penalties for the first offense, and suspension or revocation for further offenses.
If the permit is revoked, can the husband apply for a permit without his wife on the application? Would he have to wait 12 months?
The husband’s application for a permit may be made without the wife’s participation if she relinquishes her interest in the business. If this occurs, the city should require proof that the wife has been divested of her interest in the business. Since your code specifically prohibits the issuance of a new permit, after revocation, for the same location until after a 12 month time period, I believe the beer board must abide by that provision and refuse to issue another permit until 12 months has passed.
Can the wife continue to work at the business?
Based on section 8-209(1) of your code, I believe she may not. If an exception is made in this situation, the board will have difficulty enforcing the ordinance in the future. It appears from the documents you have provided that Mrs. A qualified for diversion, so the charge may be removed from her record. In any event, she was convicted of the offense and the code is clear that such persons may not be employed by the permit holder.
When faced with these decisions, the board should always consider past decisions. Have exceptions been made for others? If so, under what circumstances? If the board has not made exceptions in the past, does it want to set such a precedent, and make exceptions for similarly situated permit holders in the future?
These are clearly difficult questions to be addressed by the board, but they are necessary. I hope this letter has been helpful.
Thank you for consulting with MTAS.
Melissa A. Ashburn