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ORDINANCE NO. 2012 – 02 AN ORDINANCE AMENDING TITLE 3, CHAPTER 2, ARTICLE II, SECTION 15 OF THE CITY OF CODY CODE: SUSPENSION OR REVOCATION OF LICENSE BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF CODY, PARK COUNTY, WYOMING: Section 3-2-15 of the City of Cody Code shall be amended as follows: Section 3-2-15 Suspension and Revocation of Licenses A. The City of Cody believes that it is in the public interest to ensure that liquor license holders operate and maintain their businesses in compliance with the law. The City also believes it is in the public’s interest to provide for a fair, consistent and equitable process which avoids arbitrary decisions. The City hereby establishes a point system for determining appropriate penalties, including but not limited to fines, suspension of license or revocation of the license. B. Violations of this chapter, and any violations of City Code, State law or other regulations pertaining to alcoholic beverages by any employee or agent of the licensee, while acting in the service of licensee, shall be imputed to the licensee for the purposes of this section. A licensee will acquire points upon conviction, or upon a plea of guilty or no contest by his or her employee or agent to any violation of the City of Cody Code, State law or other regulation pertaining to alcohol or liquor regulations while employed by or acting in the service of the licensee. C. The number of points specified below will be assessed to a licensee as a result of conviction, guilty plea or no contest plea of the licensee, the licensee’s employees or agents acting in the service of the licensee, or as a result of other violations described below. Type of Violation Points Furnishing alcohol to 20 (1st violation) individuals under 21 30 (Any subsequent violation within 24 months of any prior violation) Dispensing room 10 (1st violation) Violations: age violation (W.S. 20 (Any subsequent 12-5-203); open beyond permitted violation within 24 hours (W.S. 12-5-101). months of any prior violation.) Failure to pay or report sales 10 for the first violation; Tax within five days of notice 20 for each subsequent to city of delinquency. Violation. Failure to correct or cure violations or deficiencies within specified 10 ---PAGE BREAK--- time after receiving notice from the City of Cody or State of Wyoming. If no time is specified in the notice, licenses must comply within ten business days of such notice, or submit a plan, acceptable to the City, for compliance if compliance is not reasonably feasible within ten days. Failure to comply with a suspension order 60 Failure to comply with specifications, 10 drawings, plans and conditions of approved permit. Allowing, permitting, engaging in, promoting, or 60 failing to stop other illegal activities on the licensed premises, including but not limited to gambling, prostitution, or public indecency (W.S. 12-5-204; W.S. 6-4-101; W.S. 6-4-201; W.S. 6-7-102; W.S. 6-4-302). Other violations of City of Cody 10 (1st violation) Ordinances, State law or other regulations Pertaining to the sale or distribution of 20 (Any subsequent alcohol or liquor. violation within 24 months of any prior violation.) D. Notification of licensee of alcoholic beverage violations Upon the City receiving information of a violation by a licensee, the Administrative Services Director or his or her designee shall provide the licensee with notice of the violation. Such notice shall be served by certified mail, return receipt requested, to the address of the licensee listed on the licensee’s most recent liquor license application to the City. The notice shall state that a violation has occurred and that the licensee will be assessed points for that violation. The notice shall state the nature and date of the violation and the number of points that have been attributed to the licensee. The notice shall further state that the licensee may request a hearing within 10 days of receipt of the notification, to be conducted by a hearing officer, to contest the proposed action. The hearing shall be conducted as described in subsection H through P below. E. Penalties 1. Any licensee acquiring 60 points in a 24-month period shall have its license suspended for three consecutive days. 2. Any licensee acquiring 120 points in a 24-month period shall have its license suspended for seven consecutive days. 3. It is declared to be a gross violation, both of this section of the City of Cody Code and for purposes of license revocations provided in Title 12, Chapter 7 of the Wyoming Statutes, for a licensee to have its license suspended three times in any 48-month period. In the event of a gross violation, the City Council may authorize a petition to the district court pursuant W.S.§12-7-201 to revoke a licensee’s license, in addition to imposing the applicable suspension of the liquor license pursuant to this section. ---PAGE BREAK--- 4. Any licensee who makes a willful false statement to the City of Cody or the State of Wyoming, including but not limited to false information or statements on an application, document or other submittal or correspondence to the City of Cody or State of Wyoming, shall be subject to a suspension to be determined by the City, and the Council may authorize a petition to the district court pursuant to W.S. 12-7-201 to revoke the licensee’s license. 5. The sanctions provided in this section for points are cumulative, and therefore, points may result in multiple sanctions. Accumulated points shall not be excused at the end of the license or calendar year, but shall instead continue to be counted against the licensee for the periods described in this section of the code. 6. In the event of a license suspension pursuant to this section, the City Council shall select the dates when the licensee shall have its license suspended, such suspension shall be imposed during the first full week following the final decision by the Governing Body, and shall begin on a Wednesday. 7. If an employee of a licensee violates state laws or city ordinances pertaining to furnishing of alcohol to persons under 21, or pertaining to underage persons in the dispensing room, and those violations are the first or second such violations occurring within that licensee’s establishment, the licensee may reduce the number of points assessed by such violation if, within forty-five (45) days of the violation, the licensee schedules and completes an approved training program for its employees to educate them regarding lawful and responsible sales and service of alcohol, including but not limited to prevention of underage drinking. The training program or course shall be conducted or approved in advance by the State of Wyoming Liquor Division or the City of Cody Police Department. Upon proof of scheduling and completion of such training, the licensee’s points from the most recent violation shall be reduced proportionally by the percentage of their staff that completes the training. For example, if 50% of the staff employed by the licensee provides proof acceptable to the City of completing the training, then the licensee’s points from the last violation shall be reduced by 50%. The employees who take the training shall include, at a minimum, the employee(s) who received a citation or whose action or inaction caused the violation, unless that employee is no longer employed by the licensee. The licensee may also count and receive credit for employees who have taken an approved training program or course in the twelve months immediately prior to the violation and who are still employed by the licensee at the time of the violation. In order to receive the reduction in points pursuant to this section, the licensee shall submit payroll records showing the number of employees, and names of employees who work for the licensee. If the licensee employs staff in a capacity completely unrelated to and separate from its restaurant and alcohol serving business, the licensee shall include those employees on its payroll records which it submits to the City, and shall designate those employees as “non-alcohol related.” Those employees shall be excluded from the calculation of the percentage of the staff which completed the training. For example, if the licensee operates a motel or hotel in addition to its restaurant and / or bar, those employees employed exclusively as hotel / motel staff (i.e. maid service, check-in staff, maintenance staff) shall be excluded. . Any and all employees who work in the restaurant and / or bar and who handle alcohol in any manner shall be included in the calculation of the percentage of the employees. The employees shall include, but not be limited to hosts/ hostesses, servers, wait staff, bartenders, bouncers / security staff and bar managers. F. A licensee who has accumulated sufficient points to warrant suspension or revocation of a license shall be notified in writing of the proposed sanction, the reason for such sanction, including the dates and types of the specific violations. The written notice shall inform the licensee that the licensee may request a hearing before an independent hearing officer. G. If the licensee does not request a hearing, the Administrative Services Director will, upon the expiration of 10 days from the licensee receiving notice of the violation, send notification to the licensee assessing the points and shall assess the penalty against the licensee as ---PAGE BREAK--- indicated above. If the violation includes a suspension or revocation, the Administrative Services Director shall specify the effective dates of the suspension or revocation. H. If the licensee wishes to have a hearing, the licensee shall request such hearing in writing within ten (10) days of the date of the notice of violation. The written request shall be submitted to the Administrative Services Director, and shall state the specific issues for which the licensee is seeking review. Unless otherwise agreed by the parties, the hearing shall take place within forty-five (45) days of receipt of the licensee’s request for a hearing. The date of the hearing may be extended beyond the forty-five day period at the mutual agreement of both parties. I. The Governing Body shall select and appoint an impartial and objective hearing officer to conduct a hearing called for by these provisions. The hearing officer shall be an independent contractor, and not an employee of the City, and shall be entitled to a reasonable fee for his or her services and reimbursement for reasonable expenses incurred in connection therewith. The fees, expenses and costs of the hearing officer shall be shared equally between the City and the licensee. J. The licensee may appear at the hearing in person and through counsel. The licensee will be given an opportunity to present evidence and argument on the relevant issues. The rules of evidence for the hearing shall be governed by the Wyoming Administrative Procedure Act, W.S.§16-3-112. K. At the hearing, the licensee shall bear the burden of proving by preponderance of the evidence that the assessment of a suspension or other sanction against the licensee is in error, or in violation of City Code or State law. L. The City shall make a record of the proceeding. M. The hearing officer shall be the presiding officer at the hearing, and shall have authority to conduct the hearing, administer oaths, make rulings on evidence to be received or considered, subpoena witnesses, compel the testimony of witnesses, regulate the course of the hearing, hold conferences for the settlement or simplification of the issues, require written briefs from the parties clarifying the respective legal or factual positions; grant continuances for good cause shown; punish contempt by removal from the hearing location and take any other action authorized by law, consistent with these ordinances, or require to fulfill his or her duties. N. The Rules of Civil Procedure for the State of Wyoming, insofar as the same may be applicable, and not inconsistent with the laws of the State of Wyoming, or with these ordinances, shall apply to the proceedings under this section. O. Within twenty days after the hearing, the hearing officer shall issue proposed findings of fact and conclusions of law, which the hearing officer shall deliver to the City and to the licensee. The Governing Body shall then act on the hearing examiner’s proposed findings of fact and conclusions of law within thirty (30) days of the date of the hearing officer’s decision. P. If the licensee requests a hearing, and then fails to appear for the hearing, and fails to give notice of his intent to withdraw his request for the hearing at least two business days prior to the hearing, the licensee shall be responsible for all fees, costs and expenses of the hearing officer, and other costs and expenses incurred by the City in preparation for the hearing and at the hearing itself, including attorney’s fees. If the licensee fails to appear for the hearing, the failure to appear shall be deemed a waiver of the request for a hearing, and the council shall proceed with the proposed sanction without a hearing at any time. ---PAGE BREAK--- Q. Action by the City Council to suspend a licensee’s license shall be subject to review in the district court upon exhaustion of the hearing process in accordance pursuant to this ordinance. This Ordinance shall become effective at the final passage and publication in the Cody Enterprise as required by law. PASSED ON FIRST READING: _____January 17, 2012_____ PASSED ON SECOND READING: _____February 7, 2012_____ PASSED ON THIRD READING: February 21, 2012____ Nancy Tia Brown, Mayor ATTEST: Baker, Administrative Services Director