HomeMy WebLinkAbout20200106 - Proposed Ordinance with Comments
CITY OF HASTINGS, MINNESOTA
ORDINANCE NO. 201920-___, THIRD SERIES
An Ordinance of the City of Hastings Amending City Code Chapter 112: Tobacco Regulations
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HASTINGS:
Commented \[PHLC1\]:
The request for this review was to
HASTINGS CITY CODE CHAPTER 112 IS HEREBY AMENDED AS FOLLOWS:
suggest changes to the ordinance that reflect state minimum
standards and to draft T21 provisions into the ordinance.
Those changes are reflected below in tracked changes and in
CHAPTER 112: TOBACCO REGULATIONS
comments.
112.01 Purpose and Intent.
112.02 Definitions.
112.03 License.
112.04 Fees.
112.05 Basis for Denial of License.
112.06 Prohibited Acts.
112.07 Responsibility.
112.08 Compliance Checks and Inspections.
112.09 Other Prohibited Acts.
112.10 Exceptions and Defenses.
112.11 Illegal acts
112.12 Civil Enforcement
112.13 112.12 Hearings and appeals
112.13 Exceptions and defenses
112.14 Severability
112.14 112.15 Effective Date
Commented \[PHLC2\]:
If the city chooses to add its
penalty structure to this ordinance, it could replace section
112.12 that was suggested to be deleted.
1
§ 112.01 PURPOSE.
Commented \[PHLC3\]:
Hastings could consider adopting a
more robust purpose section to more fully explain the
reasoning for the ordinance provisions. This can be
To further the official public policy of the State of Minnesota in regard to preventing young people
important if in the not very likely event Hastings would
experience litigation over the ordinance, having a strong
from starting to smoke as stated in M.S. § 144.391, as it may be amended from time to time, this
purpose section can help the city establish the evidence and
chapter regulates the sale , possession, and use of tobacco, tobacco products, and tobacco-related
reasoning for the ordinance provisions.
devices, electronic delivery devices, and nicotine or lobelia delivery products for the purpose of enforcing
For example:
and furthering existing laws. (Prior Code, § 5.34)
Because the city recognizes that the sale of commercial
tobacco, tobacco-related devices, electronic delivery devices,
and nicotine or lobelia delivery products to persons under the
§ 112.02 DEFINITIONS AND INTERPRETATIONS.
age of 18 violates both state and federal laws; and because
studies, which the city accepts and adopts, have shown that
youth use of any commercial tobacco product has increased
Except as otherwise be provided or clearly implied by context, all terms shall be given their
to 26.4% in Minnesota; and because nearly 90% of smokers
begin smoking before they have reached the age of 18 years,
commonly accepted definitions. The singular shall include the plural and the plural shall include the
and that almost no one starts smoking after age 25; and
“shall”
singular. The masculine shall include the feminine and the neuter, and vice versa. The term
because commercial tobacco use has been shown to be the
“may”
cause of many serious health problems which subsequently
means mandatory and the terms means permissive. For the purpose of this chapter, the
place a financial burden on all levels of government, this
following definitions shall apply unless the context clearly indicates or requires a different meaning.
ordinance is intended to regulate the sale of commercial
tobacco, tobacco-related devices, electronic delivery devices,
and nicotine or lobelia delivery products for the purpose of
CHILD-RESISTANT PACKAGING.
Packaging that meets the definition set forth in Code of
enforcing and furthering existing laws, to protect youth and
Federal Regulations, title 16, section 1700.15(b), as in effect on January 1, 2015, and was tested in
young adults against the serious health effects associated
accordance with the method described in Code of Federal Regulations, title 16, section 1700.20, as in
with use and initiation, and to further the official public
policy of the state to prevent young people from starting to
effect on January 1, 2015.
smoke, as stated in Minn. Stat. § 144.391, as it may be
amended from time to time. In making these findings, the
COMPLIANCE CHECKS.
The system the city uses to investigate and ensure that those
City Council accepts the conclusions and recommendations
of: the U.S. Surgeon General reports, E-cigarette Use Among
authorized to sell tobacco, tobacco products, and tobacco related deviceslicensed products are
Youth and Young Adults (2016), The Health Consequences
COMPLIANCE CHECKS
following and complying with the requirements of this chapter. may
—
of Smoking 50 Years of Progress (2014) and Preventing
COMPLIANCE
involve the use of persons under the age of 21 minors as authorized by this chapter.
Tobacco Use Among Youth and Young Adults (2012); the
Centers for Disease Control and Prevention in their studies,
CHECKS
shall also mean the use of minopersons under the age of 21
rs who attempt to purchase
—
Tobacco Use Among Middle and High School Students
tobacco, tobacco products, or tobacco related deviceslicensed products for education, research and
–
United States, 20112015 (2016), and Selected Cigarette
Smoking Initiation and Quitting Behaviors Among High
training purposes as authorized by state and federal laws.
School Students, United States, 1997 (1998); and of the
following scholars in these scientific journals: Chen, J., &
ELECTRONIC DELIVERY DEVICE.
Any product containing or delivering nicotine, lobelia, or
Millar, W. J. (1998). Age of smoking initiation: implications
46; D’Avanzo, B., La
for quitting. Health Reports, 9(4), 39-
any other substance, whether natural or synthetic, intended for human consumption through the
Vecchia, C., & Negri, E. (1994). Age at starting smoking and
ELECTRONIC DELIVERY DEVICE
inhalation of aerosol or vapor from the product. includes, but is
number of cigarettes smoked. Annals of Epidemiology, 4(6),
not limited to, devices manufactured, marketed, or sold as e-cigarettes, e-cigars, e-pipes, vape pens,
–
455459; Everett, S. A., Warren, C. W., Sharp, D., Kann, L.,
ELECTRONIC DELIVERY Husten, C. G., & Crossett, L. S. (1999). Initiation of cigarette
mods, tank systems, or under any other product name or descriptor.
smoking and subsequent smoking behavior among U.S. high
DEVICE
includes any component part of a product, whether or not marketed or sold separately.
–
school students. Preventive Medicine, 29(5), 327333;
ELECTRONIC DELIVERY DEVICE
does not include any product that has been approved or certified
Giovino, G. A. (2002). Epidemiology of tobacco use in the
–
United States. Oncogene, 21(48), 73267340; Khuder, S. A.,
by the U.S. Food and Drug Administration for sale as a tobacco-cessation product, as a tobacco-
Dayal, H. H., & Mutgi, A. B. (1999). Age at smoking onset
dependence product, or for other medical purposes, and is marketed and sold for such an approved
and its effect on smoking cessation. Addictive Behaviors,
purpose.
–
24(5), 673677; Luke, D. A., Hammond, R. A., Combs, T.,
Sorg, A., Kasman, M., Mack-Crane, A., Henriksen, L.
...
Commented \[PHLC4\]:
This suggested definition aligns
INDOOR AREA.with state and federal minimum requirements.
All space between a floor and a ceiling that is bounded by walls, doorways, or
windows, whether open or closed, covering more than 50 percent of the combined surface area of the
Commented \[PHLC5\]:
Including EDDs aligns with state
minimum requirements.
2
vertical planes constituting the perimeter of the area. A wall includes any retractable divider, garage
door, or other physical barrier, whether temporary or permanent. A standard window screen (0.011
gauge with an 18 by 16 mesh count) is not considered a wall.
LICENSED PRODUCTS.
The term that collectively refers to any tobacco, tobacco-related device,
electronic delivery device, or nicotine or lobelia delivery product.
INDIVIDUALLY PACKAGED.
The practice of selling any tobacco or tobacco product
wrapped individually for sale. Individually wrapped tobacco and tobacco products shall include, but
not be limited to, single cigarette packs, single bags or cans of loose tobacco in any form, and single
cans or others packaging of snuff or chewing tobacco. Cartons or other packaging containing more
than a single pack or other container as described in this subdivision shall not be considered
individually packaged.
LOOSIES.
The common term used to refer to a single or individually packaged cigarette.
Commented \[PHLC6\]:
Hastings could consider expanding
this definition to also capture cigars that might be removed
from retail packaging and sold individually. Since the last
MINOR.
Any natural person who has not yet reached the age of 18 years.
updates to this ordinance, federal law changed so that many
making “little cigars” that are pretty much
companies started
exactly like cigarettes, but with some tobacco added to the
MOVABLE PLACE OF BUSINESS.
Any form of business operated out of a kiosk, truck, van,
paper. Adding cigars to this provision would prohibit the sale
automobile, or other type of vehicle or transportable shelter and not a fixed address, store front or
of cigars that have been removed from their packaging and
other permanent type of structure authorized for sales transactions. offered for very little money. Youth are especially
susceptible to using such cigars because they often contain
alluring flavors and when sold as “loosies” are very cheap
NICOTINE OR LOBELIA DELIVERY PRODUCT.
Any product containing or delivering
and affordable.
nicotine or lobelia intended for human consumption, or any part of such a product, that is not a
Additionally, some public health advocates have reported
NICOTINE OR LOBELIA
tobacco or an electronic delivery device as defined in this section.
that retailers are now selling Juul pods individually as
DELIVERY PRODUCT
does not include any product that has been approved or otherwise certified “loosies,” which further contributes to the affordability and
accessibility for youth.
for legal sale by the U.S. Food and Drug Administration as a tobacco-cessation product, a tobacco-
dependence product, or for other medical purposes, and is being marketed and sold solely for that
If the city considers updating this definition it could consider
this language:
approved purpose.
LOOSIES. The common term used to refer to a single cigar
RETAIL ESTABLISHMENT.
Any place of business where tobacco, tobacco products, or
or cigarette, or any other licensed product that has been
removed from its intended retail packaging and offered for
tobacco related deviceslicensed products are available for sale to the general public. Retail
sale. LOOSIES does not include individual cigars with a
establishments shall include, but to be limited to, grocery stores, convenience stores, and restaurants.
retail price, after any discounts are applied and before any
sales taxes are imposed, of at least $4.00 per cigar
SALE.
Any transfer of goods for money, trade, barter, or other consideration.
Commented \[PHLC7\]:
Adding nicotine and lobelia
delivery products aligns with state minimum requirements.
SELF-SERVICE MERCHANDISING.
The open display of licensed products in any manner
where any person has access to the licensed products without the assistance or intervention of the
licensee or the licensee’s employee.
Open displays of tobacco, tobacco products, or tobacco related
devices in any manner where any person shall have access to the tobacco, tobacco products, or
tobacco related devices, without the assistance or intervention of the licensee or the licensee’s
employees. The assistance or intervention shall involve the actual physical exchange of the tobacco,
tobacco products, or tobacco related device between the customer and the licensee or employee. Self-
service merchandising shall not include vending machines, nor any case or storage unit secured and
inaccessible to the general public.
3
SMOKING.
Inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or
pipe, or any other lighted or heated product containing, made, or derived from nicotine, tobacco,
marijuana, or other plant, whether natural or synthetic, that is intended for inhalation. Smoking also
includes carrying or using an activated electronic delivery device.
TOBACCO OR TOBACCO PRODUCTS.
Means any product containing, made, or derived from
tobacco that is intended for human consumption, whether chewed, smoked, absorbed, dissolved,
inhaled, snorted, sniffed, or ingested by any other means, or any component, part, or accessory of a
tobacco product, including, but not limited to, cigarettes; cigars; little cigars; cheroots; stogies;
periques; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flour;
cavendish; plug and twist tobacco; fine-cut and other chewing tobacco; shorts; refuse scraps, clippings,
TOBACCO
OR
cuttings and sweepings of tobacco, and other kinds and forms of tobacco.
TOBACCO PRODUCTS
excludes any tobacco product that has been approved by the United States
Food and Drug Administration for sale as a tobacco- cessation product, as a tobacco -dependence
product, or for other medical purposes, and is being marketed and sold solely for such an approved
rd
purpose. Ord. No. 2011-12, 3Series, passed 06-06-11
TOBACCO- RELATED DEVICE.
Any rolling papers, wraps, pipes, or other device intentionally
Commented \[PHLC8\]:
The city could consider updating
this definition that is consistent with the newest model
TOBACCO-RELATED DEVICE
designed or intended to be used with tobacco products. includes
language and addresses some behavior by the industry in
components of tobacco-related devices or tobacco products, which may be marketed or sold separately.
. In the new model language, “wraps” have been added
MN
TOBACCO-RELATED DEVICES
may or may not contain tobacco. Any tobacco product as well as
to the list of devices and the provision, “Tobacco
-related
devices may or may not contain tobacco.” These were added
pipe, rolling papers, or other device intentionally designed or intended to be used in a manner which
to address the local issue of retailers selling “hemp wraps”
enable the chewing, sniffing, or smoking of tobacco or tobacco products.
and flavored “blunt wraps” and to clearly prohibit that
behavior.
VENDING MACHINE.
Any mechanical, electrical or electronic, or other type of device which
dispenses tobacco, tobacco products, or tobacco related deviceslicensed products upon the insertion of
money, tokens, or other form of payment directly into the machine by the person seeking to purchase
the tobacco, tobacco products, or tobacco related devicelicensed products and includes vending
machines equipped manual, electric, or electronic locking devices. (Prior Code, § 5.34)
INDOOR AREA.
All space between a floor and a ceiling that is bounded by walls, doorways,
Commented \[PHLC9\]:
This definition and the definition
for smoking have been moved up to keep the definitions in
or windows; whether open or closed, covering more than 50 percent of the combined surface area of
alphabetical order.
the vertical planes constituting the perimeter of the area. A wall includes any retractable divider,
rd
garage door, or other physical barrier, whether temporary or permanent. (Ord. 2014-01, 3Series
passed on 1-06-14)
SMOKING.
Inhaling or exhaling smoke from any lighted or heated cigar, cigarette, pipe, or any
other lighted or heated tobacco or plant product. Smoking includes carrying a lighted or heated cigar,
cigarette, pipe, or any other lighted or heated tobacco or plant product intended for inhalation. (Ord.
rd
2014-01, 3Series passed on 1-06-14)
§ 112.03 LICENSE.
4
Generally.
(A)No person shall sell or offer to sell any tobacco, tobacco products, or
tobacco related devicelicensed products without first having obtained a license to do so from the
City of Hastings.
Application.
(B)An application for a license to sell tobacco, tobacco products, or tobacco related
deviceslicensed products shall be made on a form provided by the city. The application shall contain
applicant’s
the full name of the applicant, the residential and business addresses and telephone
numbers, the name of the business for which the license is sought, a copy of the educational materials
the applicant intends to use to educate employees and any additional information the city deems
necessary. Upon receipt of completed application, the City Clerk shall forward the application to the
Council for action at a City Council meeting. If the Clerk determines an application is incomplete, the
Clerk shall return the application to the applicant with notice of the information necessary to make the
application complete.
Action.
(C)The City Council may approve or deny the application for a license, or it may delay
Commented \[PHLC10\]:
The city could consider the
language that is added here to more clearly explain the city’s
action for a reasonable period of time to complete any investigation of the application or the applicant
options in response to an application before explaining the
deemed necessary. A background check on the applicant is required before an application will be
background check requirement.
forwarded to the Council. The Clerk shall forward the application to the Police Department within a
reasonable period of time. The application and investigation results will be forwarded to the Council for
action. If the Council approves the license, the Clerk shall issue the license to the applicant. If the
Council denies the license, notice of the denial shall be given to the applicant along with notice of the
applicant’s Council’s
right to appeal the decision.
Term.
(D)All tobacco licenses shall be for a period of one (1) year and shall expire on June 30 of
each year, regardless of when the license was originally issued. Thereafter, all licenses eligible for
renewal, will be renewed for one (1) year. All tobacco licensees, despite when the license is issued, will
be subject to an annual compliance check.
Revocation or suspension.
(E)Any license issued under this chapter may be revoked or suspended
as provided in this chapter.
Transfers.
(F)All licenses issued under this chapter shall be issued only for the premises to which
the license was issued and only for the person to whom the license was issued. No transfer of any
license to another person or location shall be valid without the prior approval of the City Council.
Movable place of business.
(G)No license shall be issued to a movable place of business.
Only fixed-location business shall be eligible to be licensed under this chapter.
Display.
(H)All licenses shall be posted and displayed in plain view of the general public on the
licensed premise.
Renewals.
(I)The renewal of a license issued under this section shall be handled in the same
manner as the original application. The request for a renewal shall be made at least 30 days but no more
5
than 60 days before the expiration of the current license. The issuance of a license under this chapter shall be
Commented \[PHLC11\]:
Penalties for this ordinance are
considered a privilege and not an absolute right of the applicant and shall not entitle the holder to an automatic located in different part of the city code, and were not
reviewed by PHLC. The city could consider providing those
renewal of the license. (Prior Code, § 5.34) (Am. Ord. 2009-05, 3rd Series, passed 4- 20-2009) Penalty, see §
penalties in this code as well to ensure that those trying to
10.99
comply with the ordinance and those trying to enforce the
ordinance have all relevant provisions in one ordinance. The
city may want to also evaluate those penalties to determine if
(I)(J)
Issuance as privilege and not a right.
The issuance of a license is a privilege and does not entitle the
they align with best practices. If the city chooses to establish
license holder to an automatic renewal of the license.
the penalties in this ordinance, it could consider the
following language, that reflects best practices and our
model language.
Smoking.
(K)Smoking shall not be permitted and no person shall smoke within the indoor area
of any establishment with a retail tobacco license. Smoking for the purposes of sampling tobacco
(__) Administrative penalties.
rd
and tobacco related produceslicensed products is prohibited. (Ord. 2014-01, 3Series, passed 01-
(A) Licensees. Any licensee found to have violated this
ordinance, or whose employee violated this ordinance, will
06-2014)
be charged an administrative fine of $200 for a first
violation; $500 for a second offense at the same licensed
Samples.
(J)(L)
No person shall distribute samples of any licensed product free of charge or at a
premises within a 24-month period; and $750 for a third or
subsequent offense at the same location within a 24-month
nominal cost.
period. Upon the third violation, the license will be
suspended for a period of not less than 30 consecutive days.
§ 112.04 FEES.
Upon a fourth violation, the license will be revoked.
(B) Other individuals. Individuals, other than persons under
the age of 21 regulated by division (3) of this section, who
No license shall be issued under this chapter until the appropriate fee shall be paid in full. The fee
are found to be in violation of this ordinance will be charged
for a license under this chapter shall be set by ordinance. (Prior Code, § 5.34)
an administrative fine of $50.
(C) Persons under the Age of 21. Persons under the age of 21
who use a false identification to purchase or attempt to
purchase licensed products may only be subject to non-
§ 112.05 BASIS FOR DENIAL OF A LICENSE.
criminal, non-monetary civil penalties such as tobacco-
related education classes, diversion programs, community
services, or another penalty that the city determines to be
Generally.
(A)The following shall be grounds for denying issuance or a renewal of a license
appropriate. The City Council will consult with court
personnel, educators, parents, children and other interested
under this chapter. Except as may otherwise be provided by law, the existence of any particular
parties to determine an appropriate penalty for persons under
ground for denial does not mean that the city must deny the issuance or renewal of the license. If a
the age of 21 in the city. The penalty may be established by
license is mistakenly issued or renewed to a person, it shall be revoked upon discovery the person was
ordinance and amended from time to time.
(D) Statutory penalties. If the administrative penalty
ineligible for the license under this section. The city will provide the license holder with notice of the
authorized to be imposed by Minn. Stat. § 461.12, as it may
...
revocation, along with information on the right to appeal.
Commented \[PHLC12\]:
The city could consider
separating this provision from the “renewals” provisions as
(B) Specifically.
drafted to reflect that this applies not only to renewals but to
any issuance of a license.
(1)The applicant is under the age of 2118 years.
Commented \[PHLC13\]:
The city could consider adding
this provision that reflects state and federal minimum
requirements that prohibit free samples, and goes further by
(2)The applicant has been convicted within the past 5 years of any violation of a federal,
prohibiting samples for a “nominal cost.” Prohibiting
state, or other law, ordinance provision, or other regulation relating to tobacco or tobacco products, or
nominal cost samples is particularly important with the rise
of shops that specialize in the sale of electronic cigarettes.
tobacco-related devices.licensed products.
Frequently these shops allow customers to sample different
flavors or strengths of the e-liquids for nominal costs.
(3)The applicant had a license to sell tobacco, tobacco products, or tobacco related
Commented \[PHLC14\]:
The could consider reviewing its
devices revoked licensed products revoked within the preceding 12 months of the date of application.
fee structure to ensure that the costs of expanding
enforcement efforts, like compliance checks, are covered in
light of increasing the legal sales age to 21. To help
(4)The applicant fails to provide information required in the application, or provides false
determine this, the Center has a resource
or misleading information.
(https://www.publichealthlawcenter.org/sites/default/files/res
ources/phlc-fs-MDH-POS-License-Fees-2016.pdf) about
setting fees that the city can consult.
6
(5)The applicant is prohibited by federal, state, or other local law, ordinance, or
other regulation, from holding such a license.
(6)The applicant or license holder has outstanding fines, penalties, or property taxes owed
to the city. (Prior Code, § 5.34)
§ 112.06 PROHIBITED SALES.
It shall be a violation of this chapter for any person to sell or, offer for sale , give away, furnish,
or otherwise deliver any tobacco, tobacco products, or tobacco related devicesany licensed
Commented \[PHLC15\]:
Including giving away,
furnishing, or otherwise delivering here is not in accordance
products:
with best practices language and is not cohesive with the
other provisions in this section, such as required signage and
(A)To any person under the age of 2118 years:
age verification. As such, the city could consider deleting
these here, as reflected in the current edits. See comment on
Age verification.
(1) Licensees must verify by means of government-issued photographic
section 112.11 Illegal Acts for more discussion of the deleted
identification that the purchaser is at least 21 years of age. Verification is not required for a
provision.
person over the age of 30. That the person appeared to be 30 years of age or older does not
Commented \[PHLC16\]:
These suggested changes reflect
constitute a defense to a violation of this subsection.
best practices in age verification and signage which the city
(1)(2)Notice of the legal sales age and age verification requirement must be posted
Signage.
may want to consider adopting as they change the minimum
legal sales age from 18 to 21.
prominently and in plain view at all times at each location where licensed products are
offered for sale. The required signage, which will be provided to the licensee by the city,
must be posted in a manner that is clearly visible to anyone who is or is considering making a
purchase.
(A)By means of any type of vending machine, except as may otherwise be provided in this chapter;
Commented \[PHLC17\]:
Because this provision is
addressed more comprehensively in Section 112.07, it is not
needed here as well.
(B)By means of self-service methods whereby the customer does not need to make a verbal or
Commented \[PHLC18\]:
Because this provision is
written request to an employee of the licensed premise in order to receive the tobacco, tobacco product,
addressed more comprehensively in Section 112.08, it is not
or tobacco related device and whereby there is not a physical exchange of the tobacco, tobacco product,
needed here as well.
licensee’s licensee’s
or tobacco related device between the licensee or the employee unless 90% of the
total annual sales volume consists of tobacco, tobacco products, or tobacco related services.
(D)(B)By means of loosies as defined in § 112.02;
(E)(C)Containing opium, morphine, jimpson weed, bella donna, strychnos, cocaine, marijuana,
or other deleterious, hallucinogenic, toxic, or controlled substances except nicotine and substances
found naturally in tobacco or added as part of an otherwise lawful manufacturing process; or
(F)(D)By any other means, to any other person, or in any other manner or form prohibited by
Commented \[PHLC19\]:
Please see comment re: penalties
federal, state, or other local law, ordinance provision, or other regulation. (Prior Code, § 5.34) (Am.
in section 112.03 (I)
Ord. 2010- 04, 3rd Series, passed 3-15-2010) Penalty, see § 10.99
Commented \[PHLC20\]:
The city could consider
prohibiting all vending machine sales regardless of whether
youth are permitted to enter. The most secure transaction for
.
§ 112.07 VENDING MACHINES
sales of licensed products is when there is a face-to-face
exchange with a clerk.
7
It shall be unlawful for any person licensed under this chapter to allow the sale of tobacco, tobacco
products, or tobacco related deviceslicensed products by the means of a vending machine unless
minors persons under the age of 21 are at all times prohibited from entering the licensed establishment.
(Prior Code, § 5.34) Penalty, see § 10.99
Commented \[PHLC21\]:
Please see comment re: penalties
in section 112.03 (I)
§ 112.08 SELF-SERVICE SALES.
It shall be unlawful for a licensee under this chapter to allow the sale of tobacco, tobacco products,
or tobacco related deviceslicensed by any means of self-service merchandising whereby the customer
licensee’s
may have access to the items without having to request the item from the licensee or the
employee and whereby there is not a physical exchange of the tobacco, tobacco products, or tobacco
related devicelicensed products between the licensee or his or her clerk and the customer. All tobacco,
tobacco products, and tobacco related deviceslicensed products shall either be stored behind a counter
or other area not freely accessible to customers, or in a case or other storage unit not left open and
accessible to the general public. Any retailer selling, tobacco, tobacco products, or tobacco related
deviceslicensed products at the time this chapter is adopted shall comply with this section within 60
days following the effective date of this chapter. This section shall not apply to any licensee whose
total annual sales volume of tobacco, tobacco product, or tobacco-related devices is 90% or more.
Commented \[PHLC22\]:
For the same reasoning as the
comment above regarding vending machines, the city could
(Prior Code, § 5.34) (Am. Ord. 2010-04, 3rd Series, passed 3-15-10) Penalty, see § 10.99
consider removing this exception and requiring that all sales
of licensed products be limited to face-to-face, in person
transactions.
§ 112.09 RESPONSIBILITY.
Commented \[PHLC23\]:
Please see comment re: penalties
in section 112.03 (I)
All licensees under this chapter shall be responsible for their employees in regard to the sale of
tobacco, tobacco products, or tobacco related deviceslicensed products on the licensed premise, and the
sale of such an item by an employee shall be considered a sale by the licensed holder. Nothing in this
section shall be construed as prohibiting the city from also subjecting the clerk to whatever civil
penalties are appropriate under this chapter, state or federal law, or other applicable law or regulation.
(Prior Code, § 5.34)
.
§ 112.10 COMPLIANCE CHECKS AND INSPECTIONS
Commented \[PHLC24\]:
At least one compliance check
per year is required under state law with someone between
the age of 15 and 17. After adopting T21 and to enforce that
All licensed premises must be open to inspection by law enforcement or other authorized city
policy, best practices is for a city to have two compliance
checks, one with a person between 15 and 17 to comply with
officials during regular business hours. From time to time, but at least twiceonce per year, the city will
state law and one with a person between the ages of 18 and
conduct compliance checks . Iin accordance with state law, the city will conduct at least one
20 to check compliance with the city’s minimum legal sales
compliance check that involves the participation of two persons: at least one compliance check that
age.
involves the participation of a person between the ages of 15 and 17 and at least one compliance check
that involves the participation of a person between the ages of 18 and 20 to enter licensed premises to
attempt to purchase licensed products. Prior written consent is required for any person under the age of
18 to participate in a compliance check. Persons used for the purpose of compliance checks will be
supervised by law enforcement or other designated personnel. All licensed premises shall be open to
8
inspection to the city police or other authorized city official during regular business hours. From time to
time, but at least once per year, the city shall conduct unannounced compliance checks to ensure
compliance with the provisions of this chapter. The compliance checks shall utilize, with the written
consent of their parents or guardians, minors over the age of 15 years but less than 18 years, to enter
the licensed premise to attempt to purchase tobacco, tobacco products or tobacco-related devices.
Minors used for the purpose of compliance checks shall be approved and supervised by city designated
law enforcement officers or other designed city personnel. Minors used for compliance checks shall not
be guilty of the unlawful purchase or attempt to purchase tobacco, unlawful possession of tobacco,
tobacco products, or tobacco-related devices when the items are obtained as a part of the compliance
check. No minor used in compliance checks shall attempt to use a false identification misrepresenting the
minor’s
age, and all minors lawfully engaged in a compliance check shall answer all questions about the
minor’s
age asked by the licensee or his or her employee and shall produce any identification, if it exists,
for which he or she is asked. Nothing in this section shall prohibit compliance checks authorized by
state or federal laws for educational, research, or training purposes, or required for the enforcement of a
particular state or federal law. (Prior Code,
§ 5.34)
§ 112.11 ILLEGAL ACTS.
Generally.
(A)Unless otherwise provided, the following acts shall be a violation of this chapter.
Illegal sales.
(B)It shall be a violation of this chapter for any person to sell or otherwise
provide any tobacco, tobacco products, or tobacco related devicesany licensed products to any
minorperson under the age of 21.
Illegal possession.
(C)It shall be a violation of this chapter for any minor to have in his or her
Commented \[PHLC25\]:
"Prohibited Furnishing or
Procurement" Possession, use and purchase (PUP) laws may
possession any tobacco, tobacco products, or tobacco related device. This division (C) shall not
be unlikely to reduce youth smoking significantly. They may
apply to minors lawfully involved in a compliance check.
undermine other conventional avenues of youth discipline,
divert attention from more effective tobacco control
strategies, and relieve the tobacco industry of responsibility
Illegal use.
(D)It shall be a violation of this chapter for any minor to smoke, chew, sniff, or
for its marketing practices. Some communities are concerned
otherwise use any tobacco, tobacco product, or tobacco related device and it shall be a violation of this
that PUP provisions may be enforced inconsistently with
chapter for any person to purchase or otherwise obtain the items on behalf of a minor. It shall further
respect to youth from certain racial and ethnic groups,
resulting in their introduction into the criminal justice
be a violation for any person to coerce or attempt to coerce a minor to illegally purchase or otherwise
system. Nicotine is more addictive than heroin and other
obtain or use any tobacco, tobacco product, or tobacco related device. This subdivision shall not apply
drugs. Many public health groups suggest focusing instead
on the retailer, especially since this is a licensing code.
to minors lawfully involved in a compliance check.
For these reasons, the city may consider removing these
Illegal procurement.
(E)It shall be a violation of this chapter for any minor to purchase or attempt
sections, which establish penalties for underage violators of
the tobacco licensing ordinances. Removal of these
to purchase or otherwise obtain any tobacco, tobacco product, or tobacco related device, and it shall be
provisions puts responsibility on the licensee, seller, or
a violation of this chapter for any person to purchase or otherwise obtain the items on behalf of a
provider of the covered products.
minor. It shall further be a violation to coerce or attempt to coerce a minor to illegally purchase or
otherwise obtain or use any tobacco, tobacco product, or tobacco related device. This division (E) shall
Commented \[PHLC26\]:
not apply to minors lawfully involved in a compliance check. Consistent with the suggestion in
112.06 regarding removing the furnishing language, the city
could consider moving those relevant provisions to this
Prohibited furnishing or procurement.
(C) It is a violation of this ordinance for any person 21
section and address the procurement and furnishing here.
9
years of age or older to purchase or otherwise obtain any licensed product on behalf of a person under
the age of 21. It is also a violation for any person 21 years of age and older to coerce or attempt to
coerce a person under the age of 21 to illegally purchase or attempt to purchase any licensed product.
Use of false identification.
(F)(D)It shall be a violation of this chapter for any minor person
under the age of 21 to attempt to disguise his or her true age by the use of a false form of
identification, whether the identification is that of another person or one on which the age of the
person has been modified or tampered with to represent an age older than the actual age of the
person. (Prior Code, § 5.34) Penalty, see § 10.99
Commented \[PHLC27\]:
Please see comment re: penalties
in section 112.03 (I)
Those suggested penalties include an alternative penalty for
the use of false ID.
.
§ 112.12 CIVIL ENFORCEMENT
Commented \[PHLC28\]:
All elements of this provision are
repeated in other provisions. The first part in the
The license holder shall be responsible for the conduct of its agents or employees while they are on Responsibility Section (112.09) and the continued violation
language is addressed in Section 112.13 (J). The city could
the licensed premises. Any violation of this chapter shall be considered an act of the license holder for
consider removing this provision as suggested in these edits.
purposes of imposing a civil penalty, license suspension, or revocation. Each violation, and every day in
which a violation occurs or continues, shall constitute a separate offense. (Prior Code, § 5.34)
§ 112.132 HEARINGS AND APPEALS.
Notice.
(A)Upon discovery of a suspected violation, the alleged violator shall be issued, either
personally or by mail, a citation that sets forth the alleged violation and which shall inform the
alleged violator of his or her right to be heard on the accusation.
Generally.
(B)Following receipt of a notice of denial issued under this chapter or notice of
violation and penalty issued under this section, or a notice of revocation, an applicant or license holder
may request a hearing before the City Council. A request for a hearing shall be made by the applicant or
license holder in writing and filed with the City Clerk within 10 days of the mailing of the notice of
denial or alleged violation. Following receipt of a written request for hearing, the applicant or license
holder shall be afforded an opportunity for a hearing before the City Council.
Findings.
(C)If after the hearing, the applicant is found ineligible for a license or is found to have
violated this chapter, the City Council may affirm the denial, impose a fine, issue a suspension or
revocation, or impose any combination thereof. The decision shall be in writing and shall set forth the
reasons for the findings of the City Council. Copies shall be provided to the applicant or license holder.
Likewise, if the City Council finds that no violation occurred or finds grounds for not imposing any
penalty, the findings shall be recorded and a copy provided to the applicant or license holder.
Decision.
(D)If the City Council determines that a violation of this chapter did occur, that
Council’s
decision, along with the City reasons for finding a violation and the penalty to be imposed
under this chapter, shall be recorded in writing, a copy of which shall be provided to the accused
violator. Likewise, if the hearing officer finds that no violation occurred or finds grounds for not
imposing any penalty, the findings shall be recorded and a copy provided to the acquitted accused
violator.
10
Default.
(E)If the applicant or license holder has been provided written notice of the denial or
violation and if no request for a hearing is filed within the 10-day period, then the denial, penalty,
suspension, or revocation imposed pursuant to this section shall take effect immediately by default. The
City Clerk shall mail the notice of the denial, fine, suspension, or revocation to the applicant or license
holder.
Hearings.
(F)If a person accused of violating this section so requests, a hearing shall be
scheduled, the time and place of which shall be provided to the accused violator.
Hearing officer.
(G)The hearing shall be held before the City Council and shall be open to the
public.
Appeals.
(H)Any appeal of the decision of the City Council must be filed with the District Court
Council’s decision.
within 10 days of the mailing of the City
Misdemeanor prosecution.
(I)Nothing in this section shall prohibit the city from seeking
prosecution as a misdemeanor for any alleged violation of this chapter by a person 21 years of age or
older. If the city elects to seek misdemeanor prosecution, no administrative monetary penalty shall be
imposed. If the city elects to seek misdemeanor prosecution, the city is not precluded from
suspending or revoking the license of a licensee as provided by this chapter.
Continued violation.
(J)Each violation, and every day in a violation occurs or continues, shall
constitute a separate offense. (Prior Code, § 5.34) Penalty, see § 10.99
Commented \[PHLC29\]:
Please see comment re: penalties
in section 112.03 (I)
§ 112.13 EXCEPTIONS AND DEFENSES.
Religious, Spiritual, or Cultural Ceremonies or Practices.
(A) Nothing in this ordinance prevents
the provision of tobacco or tobacco-related devices to any person as part of an indigenous practice or a
lawfully recognized religious, spiritual, or cultural ceremony or practice.
Reasonable Reliance.
(B) It is an affirmative defense to a violation of this ordinance for a person
to have reasonably relied on proof of age as described by state law.Nothing in this chapter shall
prevent the providing of tobacco, tobacco products, or tobacco related devices as part of a lawfully
recognized religious, spiritual, or cultural ceremony. It shall be an affirmative defense to the violation of
this chapter for a person to have reasonably relied on proof of age as described by state law. (Prior
Code, § 5.34)
.
§ 112.14 SEVERABILITY
Commented \[PHLC30\]:
A severability clause improves
the likelihood that even if some part of this ordinance is
found invalid, the rest will stand
If any section or provision of this ordinance is held invalid, such invalidity will not affect other sections
or provisions that can be given force and effect without the invalidated section or provision.
11
.
§ 112.15 EFFECTIVE DATE
Commented \[PHLC31\]:
An effective date is important to
communicate when the ordinance changes are going into
effect.
This ordinance becomes effective seven (7) days after on the date of its publication, or upon the
publication of a summary of the ordinance as provided by Minn. Stat. § 412.191, subd. 4, as it may be
amended from time to time, which meets the requirements of Minn. Stat. § 331A.01, subd. 10, as it may
be amended from time to time.
12