HomeMy WebLinkAbout2019-003ORDINANCE NO.2019-003
CITY OF ARDEN HILLS
RAMSEY COUNTY, MINNESOTA
AN ORDINANCE AMENDING CHAPTER 3, LICENSE
AND REGULATIONS, SECTION 350, TOBACCO
PRODUCTS OF THE ARDEN HILLS CITY CODE
THE CITY COUNCIL OF THE CITY OF ARDEN HILLS, MINNESOTA, ORDAINS:
SECTION 1. Chapter 3 — Licenses and Regulations, Section 350 — Tobacco Products, is
hereby amended as follows:
Chapter 3 — License and Regulations
Section 350 — Tobacco Products
350.01 Purpose and Intent.
Because the City recognizes that:
l . Tobacco use 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 is
intended to regulate the sale of tobacco, tobacco -related devices, electronic delivery
devices, and nicotine or lobelia delivery products for the purpose of enforcing and
furthering existing laws, and to protect youth and young adults against the serious
effects associated with use and initiation.
2. The use of tobacco products has devastating health and economic consequences.
Tobacco use is the foremost preventable cause of premature death in America. It
causes half a million deaths annually and has been responsible for 20.8 million
premature deaths in the U.S. over the past 50 years since the first Surgeon General's
report on smoking in 1964. This leads to more than $300 billion in health care and
lost worker productivity costs each year. In Minnesota, smoking was responsible for
$3.19 billion in excess medical expenditures and the deaths of 6,312 individuals in
2014.
3. Youth and young people are particularly susceptible to the addictive properties of
tobacco products, and are particularly likely to become lifelong users. An estimated
5.6 million youth aged 0 to 17 are projected to die prematurely from a tobacco -related
illness if prevalence rates do not change. National data show that about 95 percent of
adult smokers begin smoking before they turn 21. The ages of 18 to 21 are a critical
period when many smokers move from experimental smoking to regular, daily use.
Electronic delivery device use among youth has recently tripled. Young minds are
particularly susceptible to the addictive properties of nicotine. As a result,
approximately 3 out of 4 teen smokers end up smoking into adulthood.
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4. Public health research and tobacco industry documents and marketing reveal that
tobacco companies have used fruit, candy, and alcohol flavors as a way to target youth
and young adults. The presence of flavors such as menthol in tobacco products can
make it more difficult for youth, young adults, and adult tobacco users to quit.
This ordinance is intended to regulate the sale of tobacco, tobacco -related devices, electronic
delivery devices, and nicotine or lobelia delivery products to protect the public, especially youth
and young adults, and to further the official public policy of the state in regard to preventing
young people from starting to smoke as stated in Minn. Stat. § 144.391, as it may be amended
from time to time.
In making these findings, the City Council accepts the conclusions and recommendations of the
U.S. Surgeon General reports, "E-cigarette Use Among Youth and Young Adults" (2016), "The
Health Consequences of Smoking-50 Years of Progress" (2014) and "Preventing Tobacco Use
Among Youth and Young Adults" (2012); a B1ueCross BlueShield of Minnesota report, "Health
Care Costs and Smoking in Minnesota: The Bottom Line" (2017); the Institute of Medicine in
their study, "Public Health Implications of Raising the Minimum Age of Legal Access to
Tobacco Products" (2015); the Centers for Disease Control and Prevention in their studies,
"Tobacco Use Among Middle and High School Students —United States, 2011— 2015," and
"Selected Cigarette Smoking Initiation and Quitting Behaviors Among High School Students,
United States, 1997"; and of the following scholars in these scientific journals: Xin Xu et al.,
Annual Healthcare Spending Attributable to Cigarette Smoking: An Update, Am. J. Prev. Med.
48(3): 326-33 (Mar. 2015); Giovino GA, "Epidemiology of Tobacco Use in the United States,"
Oncogene (2002) 21, 7326-40; Khuder SA, et al., "Age at Smoking Onset and its Effect on
Smoking Cessation," Addictive Behavior 24(5):673-7, September -October 1999; D'Avanzo B, et
al., "Age at Starting Smoking and Number of Cigarettes Smoked," Annals of Epidemiology
4(6):455-59, November 1994; Chen, J & Millar, WJ, "Age of Smoking Initiation: Implications
for Quitting," Health Reports 9(4):39-46, Spring 1998; and Everett SA, et al., "Initiation of
Cigarette Smoking and Subsequent Smoking Behavior Among U.S. High School Students,"
Preventive Medicine, 29(5):327-33, November 1999; copies of which are adopted by reference.
350.02 Definitions.
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. The term "shall"
means mandatory and the term "may" means permissive. The following terms shall have the
definitions given to them:
- Child -Resistant Packaging. Packaging that meets the definition set forth in Code of Federal
Regulations, title 16, section 1700.15(b), as in effect on January 1, 2015, and was tested in
accordance with the method described in Code of Federal Regulations, title 16, section 1700.20,
as in effect on January 1, 2015.
- Compliance Checks. A system used to investigate and ensure that those authorized to sell
licensed products are following and complying with the requirements of this
ordinance. Compliance checks shall involve the use of persons under the age of 21 as authorized
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by this ordinance. Compliance checks shall also mean the use of persons under the age of 21
who attempt to purchase licensed products 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 licensed products.
- Electronic Delivery Device. Any product containing or delivering nicotine, lobelia, or any
other substance intended for human consumption through the inhalation of aerosol or vapor from
the product. Electronic delivery device includes, but is not limited to, devices manufactured,
marketed, or sold as e-cigarettes, e-cigars, e-pipes, vape pens, mods, tank systems, or under any
other product name or descriptor. Electronic delivery device includes any component part of a
product, whether or not marketed or sold separately. Electronic delivery device does not include
any product that has been approved or certified 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 marketed and sold for such an approved purpose.
- Flavored Product: Any licensed product that contains a taste or smell, other than the taste or
smell of tobacco, that is distinguishable by an ordinary consumer either prior to or during the
consumption of the product, including, but not limited to, any taste or smell relating to chocolate,
cocoa, menthol, mint, wintergreen, vanilla, honey, fruit, or any candy, dessert, alcoholic
beverage, herb, or spice. A public statement or claim, whether express or implied, made or
disseminated by the manufacturer of a tobacco or tobacco product, tobacco -related device,
electronic delivery device, and nicotine or lobelia delivery device, or by any person authorized or
permitted by the manufacturer to make or disseminate public statements concerning such
products, that a product has or produces a taste or smell other than tobacco will constitute
presumptive evidence that the product is a flavored product.
- 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. 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.
- Loosies. The common term used to refer to a single or individually packaged cigarette or any
other licensed product that has been removed from its intended retail packaging and offered for
sale. The term "loosies" does not include individual cigars with a retail price, before any sales
taxes, of more than $2.00 per cigar.
- 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.
- 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
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reduction, or for other medical purposes, and is being marketed and sold solely for that approved
purpose.
- Retail Establishment. Any place of business where licensed products 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.
- Sale. Any transfer of goods for money, trade, barter or other consideration.
- Self -Service Merchandising. Open display of licensed products in any manner where any
person shall have access to the licensed products, 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 licensed products 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.
- Smoking. Inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or
pipe, or any other lighted or heated product, whether natural or synthetic, containing, made, or
derived from nicotine, tobacco, marijuana, or other plant, that is intended for inhalation.
Smoking also includes carrying or using an activated electronic delivery device.
- Tobacco or Tobacco Products. Tobacco and tobacco products includes 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; cigarettes; 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.
- Tobacco Related Devices. Tobacco -related devices includes any pipe, rolling papers, ashtray,
or other device intentionally designed or intended to be used with tobacco products. Tobacco -
related devices shall include components of tobacco -related devices, which may be marketed or
sold separately.
- Vending Machine. Any mechanical, electric or electronic, or other type of device which
dispenses licensed products upon the insertion of money, tokens or other forms of payment
directly into the machine by the person seeking to purchase the licensed product.
350.03 License.
No person shall sell or offer to sell any licensed products at a retail establishment without first
having obtained a license to do so from the City. License applications shall be submitted to the
City 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. (amended 3/26/07)
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Subd.l Application.
A. An application for a license to sell licensed products at a retail establishment 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.
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.
Subd. 10 Smoking. 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 and tobacco -related products is prohibited.
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Subd. 11 Samples Prohibited. No person shall distribute samples of any licensed product free
of charge or at nominal cost.
Subd. 12 Minimum Clerk Age. dividuals employed by a person licensed under this ordinance
must be at least 18 years of age to sell licensed products.
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.
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 twenty-one (21) 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 licensed products;
Subd. 3 The applicant has had a license to sell licensed products 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. 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 licensed products as
follows:
Subd. 1 No person shall sell any licensed product to any person under the age of 21.
A. Age Verification. Licensees must verify by means of government -issued
photographic identification that the purchaser is at least 21 years of age.
Verification is not required for a person over the age of 30. That the person
appeared to be 30 years of age or older does not constitute a defense to a violation
of this subsection.
B. Signage. Notice of the legal sales age and age verification requirement must be
posted 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
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manner that is clearly visible to anyone who is or is considering making a
purchase.
Subd. 2 No person shall sell or offer for sale any flavored products.
Subd. 3 By means of any type of vending machine.
Subd. 4 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 licensed
product and whereby there is not a physical exchange of the licensed product between the
licensee, or the licensee's employee, and the customer.
Subd. 5 By means of "loosies" as defined in 350.02 Definitions.
Subd. 6 Containing opium, morphine, jimsonweed, belladonna, 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.
Subd. 7 No person shall sell or offer for sale any liquid, whether or not such liquid contains
nicotine, which is intended for human consumption and use in an electronic delivery device, in
packaging that is not child -resistant. Upon request, a licensee must provide a copy of the
certificate of compliance or full laboratory testing report for the packaging use.
Subd. 8 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.
350.07 Self -Service Sales.
It shall be unlawful for a licensee under this chapter to allow the sale of licensed products 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
licensed product between the licensee or his or her clerk and the customer. All licensed 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
licensed products 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 licensed products 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 licensed products 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.
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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 twice per year, the City
shall conduct compliance checks by engaging persons over the age of 15, but less than 21 years
to enter the licensed premise to attempt to purchase licensed products. Prior written consent of a
minor's parent or guardian is required for any person under the age of 18 who participates in a
compliance check. Persons used for the purpose of compliance checks shall be supervised by
City designated law enforcement officers or other designated City personnel. No persons under
age 21 used in compliance checks shall attempt to use a false identification misrepresenting the
person's age, and all persons under the age of 21 lawfully engaged in a compliance check shall
answer all questions about the person'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. (amended 3/26/07)
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 licensed product to any person under the age of 21.
Subd. 2 Illegal Procurement. shall be a violation of this section for any person, aged 21 or
older, to purchase or otherwise obtain licensed products on behalf of a person under the age of
21. It shall further be a violation for any person, aged 21 or older, to coerce or attempt to coerce
a person under age 21 to illegally purchase or otherwise obtain or use any licensed products.
Subd. 3 Use of False Identification. It shall be a violation of this section for any person 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 licensed products to persons under the age of 21 by licensee
or licensee's employees, the following administrative fines, suspensions, or revocations shall be
imposed by the City: (amended 3/26/07)
Subd. 1 The first such violation shall subject the licensee to the payment of an administrative
fine of $150;
Subd. 2 The second violation within 24 months shall subject the licensee to the payment of an
administrative fine of $600;
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Subd. 3 The third violation within 24 months shall subject licensee, at licensee's option, to the
payment of an administrative fine of $1,050 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 person under age 21 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 licensed products. If there is a conflict between the regulations of the State
and regulations of the City, the more restrictive regulations shall control. (amended 3/26/07)
350.15 Severability Clause.
If any provision of this ordinance, or the application thereof to any person or circumstance, is
held invalid, such invalidity shall not affect any other provision of this ordinance that can be
given effect without the invalid provision or application. Each invalid provision or application of
this ordinance is severable.
SECTION 2. This Ordinance shall become effective 90 days after its passage and
publication according to law.
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PASSED and ADOPTED this �o ✓ day of ayy'k , 2019, by the City Council
of the City of Arden Hills, Minnesota.
CITY OF ARDEN HILLS
By & alz-4m � -
David Grant, Mayor
ATTEST:
lie Hanson, City Clerk
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