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HomeMy WebLinkAbout2012-004Ordinance 2012-004 STATE OF MINNESOTA COUNTY OF RAMSEY CITY OF ARDEN HILLS ORDINANCE 2012-004 AN ORDINANCE AMENDING SECTION 350 OF THE CITY CODE The Arden Hills City Council hereby ordains that Chapter 3, Section 350 of the City Code shall hereby be amended as follows: Section 350 - Tobacco Products 350.01 Purpose and Intent. Because the City recognizes that many persons under the age of eighteen (18) years purchase or otherwise obtain, possess and use tobacco, tobacco products, tobacco -related devices, and nicotine or lobelia delivery devices, and that such sales, possession and use are violations of both state and federal laws; and because studies have shown that most smokers begin smoking before they have reached the age of eighteen (18) years, and that those persons who reach the age of eighteen (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 ordinance shall be intended to regulate the sale, possession, and use of tobacco, tobacco products, tobacco -related devices, and nicotine or lobelia delivery devices for the purpose of enforcing and furthering existing laws, to protect minors against the serious effects associated with the illegal use of tobacco, tobacco products, tobacco- related devices, and nicotine or lobelia delivery 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. Page 1 of 14 Ordinance 2012-004 350.02 Definitions Subd. 1. Except as may otherwise be provided or clearly implied by context, all terms shall be given their commonly accepted definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning. Subd. 2. The term "shall" means mandatory and the term "may" means permissive. The following terms shall have the definitions given to them: A. Compliance Checks. A system used to investigate and ensure that those authorized to sell tobacco, tobacco products, tobacco -related devices, and nicotine or lobelia delivery devices are following and complying with the requirements of this ordinance. Compliance checks shall involve the use of minors as authorized by this ordinance. Compliance checks shall also mean the use of minors who attempt to purchase tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery 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, tobacco products, tobacco -related devices, and nicotine or lobelia delivery devices. B. 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 other packaging of snuff or chewing tobacco. Cartons or other packaging containing more than a single pack or other Page 2 of 14 Ordinance 2012-004 container as described in this definition shall not be considered individually packaged. C. Indoor Area. 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 vertical planes constituting the perimeter of the area. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent. D. Loosics. The common term used to refer to a single or individually packaged cigarette or any other tobacco product that has been removed from its packaging and sold individually. The term "loosies" does not include individual cigars with a retail price, before any sales taxes, of more than $2.00 per cigar. E. Minor. Any natural person who has not yet reached the age of eighteen (18) years. F. 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. G. Nicotine or Lobelia Delivery Devices. Any product containing or delivering nicotine or lobelia intended for human consumption, or any part of such a product, that is not tobacco as defined in this section, not including any product that has been approved or otherwise certified for legal sale by the United States Food and Drug Administration for tobacco use cessation, harm reduction, or for Page 3 of 14 Ordinance 2012-004 other medical purposes, and is being marketed and sold solely for that approved purpose. H. Retail Establishment. Any place of business where tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices are available for sale to the general public. The phrase shall include, but not be limited to, grocery stores, convenience stores, restaurants, drug stores and on -sale or off -sale liquor establishments. I. Sale. Any transfer of goods for money, trade, barter or other consideration. J. Self -Service Merchandising. Open display of tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices in any manner where any person shall have access to the tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery 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, tobacco product, tobacco -related devices, or nicotine or lobelia delivery device between the customer and the licensee or employee. Self -Service sales are interpreted as being any sale where there is not an actual physical exchange of the product between the clerk and the customer. K. Smoking. Inhaling or exhaling smoke from any lighted or heated cigar, cigarette, pipe, or any other lighted or heated tobacco or plant product. Smoking also includes carrying a lighted or heated cigar, cigarette, pipe, or any other lighted or heated tobacco or plant product intended for inhalation. Page 4 of 14 Ordinance 2012-004 L. Tobacco or Tobacco Products. Tobacco and tobacco products includes cigarettes and 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; cigars; cheroots; stogies; perique; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flour; Cavendish; plug and twist tobacco; fine cut, and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings, and sweepings of tobacco; and other kinds and forms of tobacco. Tobacco 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 purpose. M. Tobacco Related Devices. Tobacco -related devices includes any tobacco product as well as a pipe, rolling papers, ashtray, or other device intentionally designed or intended to be used in a manner which enables the chewing, sniffing or smoking of tobacco or tobacco products. N. 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 forms of payment directly into the machine by the person seeking to purchase the tobacco, tobacco product, or tobacco -related device. 350.03 License. No person shall sell or offer to sell any tobacco, tobacco products, tobacco - related device, or nicotine or lobelia delivery device without first having obtained a license to do so from the City. License applications shall be submitted to the City Page 5 of 14 Ordinance 2012-004 Administrator/Clerk together with the license fees determined from time to time by the City Council. A license shall be issued for the specific premises identified in the application. Subd. 1 Application. A. An application for a license to sell a tobacco, tobacco products, tobacco- related devices, or nicotine or lobelia delivery 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. B. Upon receipt of a completed application and any investigation required thereby, the City Administrator shall forward the application to the City Council for action at a regularly scheduled Council meeting. If the City Administrator determines that an application is incomplete, the application shall be returned to the applicant with notice of the information required to complete the application. Subd. 2 Action. The City Council may either approve or deny the license, or it may delay action for a 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/Clerk shall issue the license to the applicant. If the City Council denies the license, a notice of the denial shall be given to the applicant containing the City Council's reason for denial. Page 6 of 14 Ordinance 2012-004 Subd. 3 Terms. All licenses issued under this section shall be valid until December 31 of the year the license is issued. Subd. 4 Revocation and Suspension. Any license issued under this section may be revoked , or suspended as provided in Subsection 350.11 Administrative Fine, Suspension or Revocation. Subd. 5 Transfers. All licenses issued under this section shall be valid only on the premises for which the license was issued and only for the person or entity to whom the license was issued. No transfer of any license to another location or person or entity shall be valid without the prior approval of the City Council. Subd. 6 Moveable 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 section. Subd. 7 Display. All licenses shall be posted and displayed in plain view of the general public on the licensed premises. Subd. 8 Renewals. 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 thirty (30) days, but no more than sixty (60) days before the expiration of the current license. Subd. 9 Issuance is a privilege and not a right. The issuance of a license issued under this section 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. Page 7 of 14 Ordinance 2012-004 Subd. 10 Smoking. Smoking shall not be permitted and no personnel shall smoke within the indoor area of any establishment with a retail tobacco license. Smoking for the purposes of sampling tobacco and tobacco -related products is prohibited. 350.04 Fees. No license shall be issued or renewed under this section until the appropriate license fee is paid in full. The annual license fee shall be established by Ordinance as adopted by the Council. 350.05 Grounds for denying the issuance or renewal of a license under this chapter include but are not limited to the following: Subd. 1. The applicant is under the age of eighteen (18) years; Subd. 2. The applicant has been convicted within the past five (5) years of any violation of a federal, state or local law, ordinance provision, or other regulation relating to tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices; Subd. 3. The applicant has had a license to sell tobacco, tobacco products, tobacco - related devices, or nicotine or lobelia delivery devices revoked within the preceding twelve (12) months of the date of the application; Subd. 4. The applicant fails to provide any information required on the application, or provides false or misleading information; and/or Subd. 5. The applicant is prohibited by federal, state or other local law, ordinance, or other regulation from holding a license. 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. Page 8 of 14 Ordinance 2012-004 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. 350.06 Prohibited Sales. It shall be a violation of this section for any person to sell or offer to sell any tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery device: Subd. 1. To any person under the age of eighteen (18) years; Subd. 2. By means of any type of vending machine; Subd. 3. 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, tobacco product, tobacco -related device, or nicotine or lobelia delivery device and whereby there is not a physical exchange of the tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery device between the licensee, or the licensee's employee, and the customer; Subd. 4. By means of "loosies" as defined in 350.02 Definitions; Subd. 5. Containing opium, morphine, jimson weed, bella donna, strychnos, cocaine, marijuana, or other deleterious, hallucinogenic, toxic or controlled substances except nicotine and other substances found naturally in tobacco or added as part of an otherwise lawful manufacturing process. It is not the intention of this provision to ban the sale of lawfully manufactured cigarettes or other tobacco products; and/or Subd. 6. By any means, to any other person, or in any other manner or form prohibited by federal, state or other local law, ordinance provision, or other regulation. Page 9 of 14 Ordinance 2012-004 350.07 Self -Service Sales. It shall be unlawful for a licensee under this chapter to allow the sale of tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices by any means whereby the customer may have access to those items without having to request the item from the licensee or the licensee's employee and whereby it is not a physical exchange of the tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery device between the licensee or his or her clerk and the customer. All tobacco, tobacco products, tobacco -related devices, and nicotine or lobelia delivery 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, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices at the time this section is adopted shall comply with this section within 90 days following the effective date of this section. This section shall not apply to any licensee whose total annual sales volume of tobacco, tobacco products, tobacco -related devices is 90% or more. 350.08 Responsibility. All licensees under this section shall be responsible for the actions of their employees in regard to the sale of tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices on the licensed premises, and the sale of an item by an employee shall be considered a sale by the license holder. Nothing in this section 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. 350.09 Compliance Checks and Inspections. All licensed premises shall be open to inspections 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, but less than 18 years to enter the licensed premise to attempt to purchase tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices. Minors used for the purpose of compliance checks shall be supervised by City designated Page 10 of 14 Ordinance 2012-004 law enforcement officers or other designated City personnel. Minors used for compliance checks shall not be guilty of unlawful possession of tobacco, tobacco products, tobacco - related devices, or nicotine or lobelia delivery devices when those items are obtained as part of a 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 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. 350.10 Other Illegal Acts. Unless otherwise provided, the following acts shall be a violation of this section. Subd. 1 Illegal Sales. It shall be a violation of this section for any person to sell or otherwise provide any tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery device to any minor. Subd. 2 Illegal Possession. It shall be a violation of this section for any minor to have in his or her possession any tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery device. This subdivision shall not apply to minors lawfully involved in a compliance check. Subd. 3 Illegal Use. It shall be a violation of this section for any minor to smoke, chew, sniff or otherwise use any tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery device Subd. 4 Illegal Procurement. It shall be a violation of this section for any minor to purchase or attempt to purchase or otherwise obtain any tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery device, and it shall be a Page 11 of 14 Ordinance 2012-004 violation of this section for any person to purchase or otherwise obtain those 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, tobacco product, tobacco -related device, or nicotine or lobelia delivery device. This subdivision shall not apply to minors lawfully engaged in a compliance check. Subd. 5 Use of False Identification. It shall be a violation of this section 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. 350.11 Administrative Fine, Suspension or Revocation. Any violation of the City's regulations relating to the issuance of Tobacco Products License or of any conditions/ restrictions attached to the issuance of such license shall be cause for the imposition of an administrative fine, the suspension of the license, or the revocation of the license. A licensee whose license has been revoked shall not be eligible for another Tobacco Product License for one year from the date of license revocation. If the violation relates to the sale of tobacco products to minors by licensee or licensee's employees, the following administrative fines, suspensions, or revocations shall be imposed by the City: Subd. 1. The first such violation shall subject the licensee to the payment of an administrative fine of $100; Subd. 2. The second violation within 24 months shall subject the licensee to the payment of an administrative fine of $500; Page 12 of 14 Ordinance 2012-004 Subd. 3. The third violation within 24 months shall subject licensee, at licensee's option, to the payment of an administrative fine of $1,000 and a seven (7) business day suspension or a thirty day suspension of the license and an administrative fine of $250; Subd. 4. The fourth violation within 24 months shall subject licensee to a revocation of the license for a one-year period. The imposition of an administrative fine and suspension of a license or to a license revocation pursuant to this section shall be preceded by a hearing before the City Council, unless the license holder elects to waive its right to a public hearing. Licensees, whose licenses have been revoked, shall not be eligible for another Tobacco Product License for one year from the date of license revocation 350.12 Hearing. The imposition of an administrative fine and/or a suspension of license, unless the suspension is requested by licensee, shall be preceded by a hearing before the City Council. 350.13 Exceptions and Defenses. Nothing in this section shall prevent the providing of tobacco, tobacco products, 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 section for a person to have reasonably relied on proof of age as described by state law. 350.14 License Requirements. A license shall comply with all applicable regulations of the State of Minnesota relating to the sale or dispensing of tobacco products. If there is a conflict between the regulations of the State and regulations of the City, the more restrictive regulations shall control. Page 13 of 14 I F ■ m ■ M� r ■ ■ m ■ R • ■ ■ ■ CITY OF ARDEN HILLS COUNTY OF RAMSEY STATE OF MINNESOTA SUMMARY OF ORDINANCE NO. 2012-004 On the 14th day of May, 2012, the Arden Hills City Council adopted Ordinance No. 2012-004, and by at least three/fifths affirmative votes pursuant to Minn. Stat. §412.191, Subd. 4, directed that a summary of Ordinance 2012-004 be published. Arden Hills Ordinance No. 2012-004 is entitled "Tobacco Products" and will become effective the day following publication of this Ordinance Summary. Ordinance No. 2012-004 will amend Chapter 3, Section 350 of the Arden Hills City Code. This Ordinance amends the regulation the sale, possession, and use of tobacco, tobacco products, tobacco -related devices, and nicotine or lobelia delivery devices for the purpose of enforcing and furthering existing law sections of the City Code. A copy of the Ordinance is available for inspection during regular business hours at the office of the City Administrator, 1245 West Highway 96, Arden Hills, Minnesota 55112. The Ordinance is also available online at http://www.ci.arden-hills.mn.us. (Bulletin: May 23, 2012)