Section
115.01
Purpose and
intent
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
Compliance checks
and inspections
115.11
Other illegal
acts
115.12
Exceptions and
defenses
115.99
Violations and
penalty
§ 115.01 PURPOSE AND INTENT.
Because the city recognizes that many
persons under the age of 18 years purchase or otherwise obtain, possess and use
tobacco, tobacco products, and tobacco related devices, and the sales, possession, and use are violations of both
state and federal laws; and because studies, which the city hereby 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 chapter
shall be intended to regulate the sale, possession and use of tobacco, tobacco
products, 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,
tobacco products, and tobacco related
devices, and to further the official public policy of the state 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.
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
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,
tobacco products, 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, tobacco products, 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, tobacco products, and tobacco related devices.
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 container as
described in this definition shall not be considered individually packaged.
LOOSIES. 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, tobacco products or tobacco related devices are
available for sale to the general public.
The phrase 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, 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 employee. The assistance or intervention shall entail
the actual physical exchange of the tobacco, tobacco product, or tobacco
related device between the customer and the licensee or employee. The phrase shall not include vending
machines. Self-service sales are
interpreted as being any sale where there is not an actual physical exchange of
the tobacco between the clerk and the customer.
TOBACCO or TOBACCO PRODUCTS. Any substance or item containing tobacco
leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff,
fine cut or other chewing tobacco, cheroots, stogies, perique, granulated, plug
cut, crimp cut, ready-rubbed, and other smoking tobacco, snuff flowers,
cavendish, shorts, plug and twist tobaccos, dipping tobaccos, refuse scraps,
clippings, cuttings, and sweepings of tobacco, and other kinds and forms of
tobacco leaf prepared in a manner as to be suitable for chewing, sniffing or
smoking.
TOBACCO RELATED DEVICES. Any tobacco
product as well as a pipe, rolling papers 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.
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, tobacco product or tobacco related device.
§ 115.03 LICENSE.
(A) License required. No person shall sell or offer to sell any
tobacco, tobacco products, or tobacco related device without first having obtained
a license to do so from the city.
(B) Application. An application for a license to sell tobacco,
tobacco products, 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 Clerk shall forward the application to the City Council
for action at its next regularly scheduled City Council meeting. If the City Clerk 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.
(C) 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 Clerk shall issue the license to the
applicant. If the City Council denies
the license, notice of the denial shall be given to the applicant along with
notice of the applicant's right to appeal the City Council's decision.
(D) Term. All licenses issued under this chapter shall
be valid for one calendar year from the date of issue.
(E) Revocation or suspension. Any license issued under this chapter may be
revoked or suspended as provided in § 115.99.
(F) 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.
(G) 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 chapter.
(H) Display. All licenses shall be posted and displayed in
plain view of the general public on the licensed premise.
(I) 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 30 days but no more than 60 days before the expiration of the current
license.
(J) Issuance as privilege and not a
right. 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.
Penalty, see § 115.99
§ 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 established in the city's Ordinance Establishing Fees and Charges,
adopted pursuant to § 30.11, as it may be amended from time to time.
Penalty, see § 115.99
§ 115.05 BASIS FOR DENIAL OF LICENSE.
(A) Grounds for denying the issuance or
renewal of a license under this chapter includes but is not limited to the
following:
(1) The applicant is under the
age of 18 years.
(2) The applicant has been
convicted within the past five years of any violation of a federal, state, or
local law, ordinance provision, or other regulation relating to tobacco or
tobacco products, or tobacco related devices.
(3) The applicant has had a
license to sell tobacco, tobacco products, or tobacco related devices revoked
within the preceding 12 months of the date of application.
(4) The applicant fails to
provide any information required on the application, or provides false or
misleading information.
(5) The applicant is prohibited
by federal, state, or other local law, ordinance, or other regulation from
holding a license.
(B) 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.
(C) 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.
Penalty, see § 115.99
§ 115.06 PROHIBITED SALES.
It shall be a violation of this chapter
for any person to sell or offer to sell any tobacco, tobacco product, 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 § 115.07.
(C) By means of self-service methods
whereby the customer does not need to a make a verbal or written request to an
employee of the licensed premise in order to receive the tobacco, tobacco
product, or tobacco related device and whereby the there is not a physical
exchange of the tobacco, tobacco product, or tobacco related device between the
licensee, or the licensee's employee, and the customer.
(D) By means of loosies as defined in
§ 115.02.
(E) 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.
(F) By any other means, to any other
person, on in any other manner or form prohibited by federal, state or other
local law, ordinance provision, or other regulation.
Penalty, see § 115.99
§ 115.07 VENDING MACHINES.
It shall be unlawful for any person
licensed under this chapter to allow the sale of tobacco, tobacco products, or
tobacco related devices by the means of a vending machine unless minors are at
all times prohibited from entering the licensed establishment.
Penalty, see § 115.99
§ 115.08 SELF-SERVICE SALES.
It shall be unlawful for a licensee
under this chapter to allow the sale of tobacco, tobacco products, or tobacco
related devices by any means where by the customer may have access to those
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, tobacco
product, or the tobacco related device between the licensee or his or her clerk
and the customer. All tobacco, tobacco
products, and 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, tobacco
products, or tobacco related devices at the time this chapter is adopted shall
comply with this section within 90 days following the effective date of this
chapter.
Penalty, see § 115.99
§ 115.09 RESPONSIBILITY.
All licensees under this chapter shall
be responsible for the actions of their employees in regard to the sale of
tobacco, tobacco products, or tobacco related 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 chapter, state or federal law, or
other applicable law or regulation.
Penalty, see § 115.99
§ 115.10 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 premise to attempt to
purchase tobacco, tobacco products, or tobacco related devices. Minors used for the purpose of compliance
checks shall be supervised by city designated law enforcement officers or other
designated city personnel. Minors used
for compliance checks shall not be guilty of unlawful possession of tobacco,
tobacco products, or tobacco related devices when those 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 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.
Penalty, see § 115.99
§ 115.11 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, tobacco product, 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, tobacco product, or
tobacco related device. This division
(B) 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, snuff or otherwise use any tobacco, tobacco product,
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,
tobacco product or tobacco related device, and it shall be a violation of this
chapter 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, or tobacco related
device. This division (D) 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
§ 115.12 EXCEPTIONS AND DEFENSES.
Nothing in this chapter shall prevent
the providing of tobacco, tobacco products, 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.
§ 115.99 VIOLATIONS AND PENALTY.
(A) Violations.
(1) 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.
(2) 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.
(3) Hearing Officer. The city official designated by the City
Council shall serve as the hearing officer.
(4) Decision. If the hearing officer determines that a
violation of this chapter did occur, that decision, along with the hearing
officer's reasons for finding a violation and the penalty to be imposed under
division (B) of this section, 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, those findings shall be recorded
and a copy provided to the acquitted accused violator.
(5) 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.
(6) Misdemeanor prosecution. Nothing in this section shall prohibit the
city from seeking prosecution as a misdemeanor for any alleged violation of
this ordinance.
(7) Continued violation. Each violation, and every day in which a
violation occurs or continues, shall constitute a separate offense.
(B) Administrative penalties.
(1) Licensees. Any licensee found to have violated this
chapter, or whose employee shall have violated this chapter, shall be charged
an administrative fine of $75 for a first violation of this chapter; $200 for a
second offense at the same licensed premises within a 24‑month period;
and $250 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.
(2) Other individuals. Other individuals, other than minors
regulated by division (B)(3) of this section, found to be in violation of this
chapter shall be charged an administrative fine of $50.
(3) Minors. Minors found in unlawful possession of or who
unlawfully purchase or attempt to purchase, tobacco, tobacco products, or
tobacco related devices, shall be subject to an administrative fine, or may be
subject to tobacco related education classes, diversion programs, community
services, or another penalty that the city believes will be appropriate and
effective. The administrative fine or
other penalty shall be established by City Council ordinance upon the City
Council's consultation with interested parties of the courts, educators,
parents and children to determine an appropriate penalty for minors in the
city. This administrative fine or other
penalty may also be established from time to time by the Ordinance Establishing
Fees and Charges, adopted pursuant to § 30.11, as it may be amended from time
to time.
(4) Misdemeanor. Nothing in this section shall prohibit the
city from seeking prosecution as a misdemeanor for any violation of this
chapter.
(5) Statutory penalties. If the administrative penalties
authorized to be imposed by M.S. § 461.12, as it may be amended from time
to time, differ from those established in this section, then the statutory
penalties shall prevail.