Chapter Number 115, Tobacco Regulations

CHAPTER 115:  TOBACCO AND TOBACCO RELATED DEVISES REGULATIONS

01-14 February 3, 2014

Prior Code 12.01

Section

            115.01 Purpose

            115.02 Definitions

            115.03 License

            115.04 Fees

            115.05 Basis for denial of license

            115.06 Prohibited sales

            115.07 Vending machines

            115.08 Self-service sales

            115.09 Responsibility

            115.10 Training sessions

            115.11 Signage

            115.12 Compliance checks and inspections

            115.13 Other illegal acts

            115.14 Exceptions and defenses

            115.98 Violations

            115.99 Penalty

• 115.01 PURPOSE.

            Because the city recognizes that many persons under the age of 18 years purchase or otherwise obtain, possess and use tobacco and tobacco related devices and such sales, possession and use are violations of both state and federal laws; and because studies, which the city accepts and adopts, have shown that most smokers begin smoking before they have reached the age of 18 years and that those persons who reach the age of 18 years without having started smoking are significantly less likely to begin smoking; and because smoking has been shown to be the cause of several serious health problems which subsequently place a financial burden on all levels of government; this section shall be intended to regulate the sale, possession and use of tobacco and tobacco related devices for the purpose of enforcing and furthering existing laws, to protect minors against the serious effects associated with the illegal use of tobacco and tobacco related devices and to further the official public policy of the State of Minnesota in regard to preventing young people from starting to smoke as stated in M.S. § 144.391, as it may be amended from time to time.

• 115.02 DEFINITIONS.

            For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

            COMPLIANCE CHECKS.  The system the city uses to investigate and ensure that those authorized to sell tobacco and tobacco related devices are following and complying with the requirements of this chapter.  COMPLIANCE CHECKS shall involve the use of minors as authorized by this chapter. COMPLIANCE CHECKS shall also mean the use of minors who attempt to purchase tobacco or tobacco related devices for educational, research and training purposes as authorized by state and federal laws. COMPLIANCE CHECKS may also be conducted by other units of government for the purpose of enforcing appropriate federal, state or local laws and regulations relating to tobacco and tobacco related devices.

            INDIVIDUALLY PACKAGED. The practice of selling any tobacco 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 other 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.  Cartons are defined as packaging containing ten or more packages of cigarettes.

            LOOSES.  The common term used to refer to a single or individually packaged cigarette.

            MINOR.  Any natural person who has not yet reached the age of 18 years.

            MOVEABLE PLACE OF BUSINESS.  Any form of business operated out of a truck, van, automobile or other type of vehicle or transportable shelter and not a fixed address store front or other permanent type of structure authorized for sales transactions.

            RETAIL ESTABLISHMENT.  Any place of business where tobacco or tobacco related devices are available for sale to the general public.  RETAIL ESTABLISHMENTS shall include, but not be limited to, grocery stores, convenience stores and restaurants.

            SALE.  Any transfer of goods for money, trade, barter or other consideration.

            SELF-SERVICE MERCHANDISING.  Open displays of tobacco, lighters or tobacco related devices in any manner where any person shall have access to the tobacco, lighters or tobacco related devices, without the assistance or intervention of the licensee or the licensee’s employee. The assistance or intervention shall entail the actual physical exchange of the tobacco, lighter or tobacco related device between the customer and the licensee or employee. Self-service merchandising shall not include vending machines.

TOBACCO and TOBACCO RELATED DEVISES.  For the purposes of this Chapter, the terms “tobacco” and “tobacco related devices” shall have the meanings given them in Section 609.685 of the Minnesota Statutes and as the same may from time to time be amended, and shall include electronic cigarettes defined as any electronic-smoking device that can be used to deliver nicotine or any other substances to the person inhaling from the device. The term shall include such devices whether they are manufactured as electronic cigarettes, electronic cigars, electronic pipes or any other product name.

            VENDING MACHINE.  Any mechanical, electric or electronic or other type of device which dispenses tobacco, tobacco products or tobacco related devices upon the insertion of money, tokens or other form of payment directly into the machine by the person seeking to purchase the tobacco or tobacco related device.

• 115.03 LICENSE.

            No person shall sell or offer to sell any tobacco or tobacco related device without first having obtained a license to do so from the city.

            (A)      Application.  An application for a license to sell tobacco or tobacco related devices shall be made on a form provided by the city. The application shall contain the full name of the applicant, the applicant’s residential and business addresses and telephone numbers, the name of the business for which the license is sought and any additional information the city deems necessary.  Upon receipt of a completed application, the City Administrator shall forward the application to the City Council for action at its next regularly scheduled City Council meeting.  If the City Administrator shall determine that an application is incomplete, he or she shall return the application to the applicant with notice of the information necessary to make the application complete.

            (B)       Action.  The City Council may either approve or deny the license or it may delay action for such reasonable period of time as necessary to complete any investigation of the application or the applicant it deems necessary.  If the City Council shall approve the license, the City Administrator shall issue the license to the applicant.  If the City Council denies the license, notice of denial shall be given to the applicant along with notice of the applicant’s right to appeal the City Council’s decision.

            (C)       Term.  All licenses issued under this chapter expire on December 31 of the year for which they are issued.

            (D)      Revocation or suspension.  Any license issued under this chapter may be revoked or suspended as provided in §§ 115.98 and 115.99.

            (E)       Transfers.  All licenses issued under this chapter shall be valid only on the premises for which the license was issued and only for the person to whom the license was issued.  No transfer of any license to another location or person shall be valid without the prior approval of the City Council.

            (F)       Movable place of business.  No license shall be issued to a moveable place of business. Only fixed location businesses shall be eligible to be licensed under this chapter.

            (G)      Display.  All licenses shall be posted and displayed in plain view of the general public on the licensed premises.

            (H)      Renewals.  The renewal of a license issued under this chapter 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 than 60 days before the expiration of the current license.  The issuance of a license issued under this chapter shall be considered a privilege and not an absolute right of the applicant and shall not entitle the holder to an automatic renewal of the license.

• 115.04 FEES.

            No license shall be issued under this chapter until the appropriate license fee shall be paid in full.  The fee for a license under this chapter shall be as set from time to time by resolution of the City Council.

 115.05 BASIS FOR DENIAL OF LICENSE.

            The following shall be grounds for denying the issuance or renewal of a license under this chapter; however, except as may otherwise be provided by law, the existence of any particular ground for denial does not mean that the city must deny the license; if a license is mistakenly issued or renewed to a person, it shall be revoked upon the discovery that the person was ineligible for the license under this chapter:

            (A)      The applicant is under the age of 18 years;

            (B)       The applicant has been convicted within the past five years of any violation of a federal, state or local law, section provision or other regulation relating to tobacco or tobacco related devices;

            (C)       The applicant has had a license to sell tobacco or tobacco related devices revoked within the preceding 12 months of the date of the application;

            (D)      The applicant fails to provide any information required on the application or provide false or misleading information;

            (E)       The applicant is prohibited by federal, state or other local law, section or other regulation from holding such a license.

• 115.06 PROHIBITED SALES.

            It shall be a violation of this chapter for any person to sell or offer to sell any tobacco, lighters or tobacco related device:

            (A)      To any person under the age of 18 years;

            (B)       By means of any type of vending machine, except as may otherwise be provided in this chapter;

            (C)       By means of self-service methods whereby the customer does not need to make a verbal or written request to an employee of the licensed premises in order to receive the tobacco, lighters or tobacco related device between the licensee or the licensee’s employee and the customer, except for the sale of cartons of cigarettes;

            (D)      By means of looses as defined in § 115.02;

            (E)       By any other means, to any other person or in any other manner or form prohibited by federal, state or other local law, section provision or other regulation.

• 115.07 VENDING MACHINES.

            It shall be unlawful for any person licensed under this chapter to allow the sale of tobacco or tobacco related devices by the means of a vending machine. Penalty, see § 115.99

• 115.08 SELF-SERVICE SALES.

            (A)      It shall be unlawful for a licensee under this chapter to allow the sale of tobacco, lighters or tobacco related devices by any means whereby the customer may have access to such items without having to request the item from the licensee or the licensee’s employee and whereby there is not a physical exchange of the tobacco, lighters or the tobacco related device between the licensee or his or her clerk and the customer.  All tobacco, lighters or tobacco related devices 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, lighters or tobacco related devices at the time this chapter is adopted shall comply with this chapter within 30 days.

            (B)       The following are exceptions to this chapter:

                        (1)       In establishments where minors are at all times prohibited;

                        (2)       In establishments where 90% or more of their revenues are from the sale of tobacco, tobacco products and tobacco related devices.

• 115.09 RESPONSIBILITY.

            All licensees under this chapter shall be responsible for the actions of their employees in regard to the sale of tobacco, lighters or tobacco related devices on the licensed premises, and the sale of such an item by an employee shall be considered a sale by the license holder.  Nothing in this chapter shall be construed as prohibiting the city from also subjecting the clerk to whatever penalties are appropriate under this section, state or federal law or other applicable law or regulation.

• 115.10 TRAINING SESSIONS.

            All licensees and their employees shall attend training on the problem of underage smoking, when to require identification, how to recognize false identification and general procedures for conducting sales and dealing with problems that may arise. Training sessions must be certified by the city in order to comply with this chapter.

• 115.11 SIGNAGE.

            All licensed premises are required to post signs indicating it is illegal to sell tobacco and tobacco related devices to anyone under the age of 18 years and that the possession and use of such items by minors is also illegal under both state law and local law.  Signs shall be at least 8.5 inches by 11 inches in size and shall be conspicuously placed.

• 115.12 COMPLIANCE CHECKS AND INSPECTIONS.

            All licensed premises shall be open to inspection by 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 compliance checks by engaging, 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 premises to attempt to purchase tobacco, tobacco products or tobacco related devices.  Minors used for the purpose of compliance checks shall not be guilty of unlawful possession of tobacco or tobacco related devices when such items are obtained as a part of the compliance check.  No minor used in compliance 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 any 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.

• 115.13 OTHER ILLEGAL ACTS.

            Unless otherwise provided, the following acts shall be a violation of this chapter.

             (A)      Illegal sales.  It shall be a violation of this chapter for any person to sell or otherwise provide any tobacco or tobacco related device to any minor.

            (B)       Illegal possession.  It shall be a violation of this chapter for any minor to have in his or her possession any tobacco or tobacco related device.  This division shall not apply to minors lawfully involved in a compliance check.

            (C)       Illegal use.  It shall be a violation of this chapter for any minor to smoke, chew, sniff or otherwise use any tobacco or tobacco related device.

            (D)      Illegal procurement.  It shall be a violation of this chapter for any minor to purchase or attempt to purchase or otherwise obtain any tobacco or tobacco related device, and it shall be a violation of this chapter for any person to purchase or otherwise obtain such items on behalf of a minor. It shall further be a violation for any person to coerce or attempt to coerce a minor to illegally purchase or otherwise obtain or use any tobacco or tobacco related device. This division shall not apply to minors lawfully involved in a compliance check.

            (E)       Use of false identification.  It shall be a violation of this chapter for any minor 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. Penalty, see § 115.99

• 115.14 EXCEPTIONS AND DEFENSES.

            Nothing in this chapter shall prevent the providing of tobacco or tobacco related devices to a minor 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.

• 115.98 VIOLATIONS.

            (A)      Notice.  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.

            (B)       Hearings. If a person accused of violating this chapter so requests, a hearing shall be scheduled, the time and place of which shall be published and provided to the accused violator.

            (C)       Hearing officer.  The City Administrative Hearings Board shall serve as the hearing officer.

            (D)      Decision.  If the hearing officer determines that a violation of this chapter did occur, that decision, along with the hearing officers reasons for finding a violation and the penalty to be imposed under § 115.99 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 such findings shall be recorded and a copy provided to the acquired accused violator.

            (E)       Appeals.  Appeals of any decision made by the hearing officer shall be filed in the district court for the city in which the alleged violation occurred.

            (F)       Misdemeanor prosecution.  Nothing in this chapter shall prohibit the city from seeking prosecution as a misdemeanor for any alleged violation of this chapter.  If the city elects to seek misdemeanor prosecution, no administrative penalty shall be imposed.

            (G)      Continued violation.  Each violation, and every day in which a violation occurs or continues, shall constitute a separate offense.

• 115.99 PENALTY.

            (A)      Licensees and employees.  Any licensee found to have violated this chapter shall be charged an administrative fine of $100 for a first violation of this chapter; $200 for a second offense at the same licensed premises within a 24 month period; and $300, plus a suspension of not more than seven days, for a third or subsequent offense at the same location within a 24 month period. In addition, after the third offense, the license shall be suspended for not less than seven days and penalties for additional offenses will increase up to and including revocation.

            (B)       Other individuals.  Other individuals, including any employee of a licensee, other than minors regulated by division (C) of this section, found to be in violation of this chapter shall be charged an administrative fee as shall be set from time to time by resolution of the City Council.

            (C)       Minors.  Minors found in unlawful possession of or who unlawfully purchase or attempt to purchase tobacco, tobacco products or tobacco related devices shall be required to serve a minimum of ten community service hours for the city.

            (D)      Misdemeanor.  Nothing in this chapter shall prohibit the city from seeking prosecution as a misdemeanor for any violation of this chapter.

            (E)       Any person who shall violate any provision of this chapter for which no specific penalty is provided shall be punished as set forth in § 10.99 of this code.