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HomeMy Public PortalAbout299CITY OF MEDINA ORDINANCE NO. 299 AN ORDINANCE RELATING TO THE SALE, POSSESSION AND USE OF TOBACCO, TOBACCO PRODUCTS AND TOBACCO RELATED DEVICES The City Council of the City of Medina, Minnesota ordains as follows: Section 615 et seq. of the code of ordinances is amended by deleting all of the stricken material and by adding the highlighted material as follows: 615. CIGARETTES TOBACCO, TOBACCO PRODUCTS AND TOBACCO RELATED DEVICES 615.01. Sales. The sale of cigarettes and cigarette wrappers in the city shall be governed by the provisions of this section. 615.03. License Required. No person shall directly or indirectly or by means of any device deep for January 31 in any year, the fee shall be computed at the rate of 1/2 thereof for each month or fractional 615.07. Standards. No cigarette license shall be issued except to a person of good moral character. business. No person shall sell or give away any cigarettes, cigarett deleterious or poisonous drug except nicotine. 615.01. Purpose. 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 such sales, possession, and use are violations of both state and federal laws. Studies 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. 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 is 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 use of RHB142424 ME230-5 1 tobacco, tobacco products and tobacco related devices, and to further the official public policy of Minnesota in regard to preventing young people from starting to smoke, as stated in Minnesota Statutes, section 144.3 91. 615.03. Definitions and Interpretations. Except as may otherwise be provided or clearly implied by context, all terms shall be given their commonly accepted definitions. The following terms shall have the definitions given to them: Subd. 1. Tobacco or Tobacco Products. "Tobacco" or "Tobacco products" shall mean 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 such manner as to be suitable for chewing, sniffing, or smoking. Subd. 2. Tobacco Related Devices. "Tobacco related devices" shall mean any product or device, including but not limited to, pipes, rolling papers, or other devices intentionally designed or intended to be used in a manner which enables the chewing, sniffing, or smoking of tobacco or tobacco products. Subd. 3. Self -Service Merchandising. "Self -Service Merchandising" shall mean open displays of tobacco, tobacco products or tobacco related devices in any manner in which any person may have access to the tobacco, tobacco products or tobacco related devices without the assistance or intervention of the licensee or the licensees 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. Self-service merchandising shall not include vending machines. Subd. 4. Vending Machine. "Vending Machine" shall mean 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. Subd. 5. Individually Packaged. "Individually packaged" shall mean 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 acp kaging containing more than a single pack or other container as described in this subdivision shall not be considered individually packaged. Subd. 6. Loosies. "Loosies" shall mean a single or individually packaged cigarette. Subd. 7. Minor. "Minor" shall mean any natural person who has not yet reached the age of 18 years. Subd. 8. Retail Establishment. "Retail Establishment" shall mean any place of business in which tobacco, tobacco products or tobacco related devices are available for sale to the general public, RHB142424 ME230-5 2 including but not be limited to, grocery stores, convenience stores and restaurants. Subd: 9. Moveable Place of Business. "Moveable Place of Business" shall refer to any business operated out of a truck, van, automobile or other vehicle or transportable shelter and not at a fixed address, store front or other permanent structure authorized for sales transactions. Subd. 10. Sale. A "sale" shall mean any transfer of goods for money, trade, barter or other consideration, including giving goods away for free alone or in conjunction with other goods or products. Subd. 11. Compliance Checks. "Compliance Checks" shall mean the system used by the city or any other jurisdiction to investigate and ensure that those licensed to sell tobacco, tobacco products and tobacco related devices are complying with the requirements of this ordinance or any state or federal law or regulation. 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 or tobacco related devices for educational, research and training purposes as authorized by state or federal law. 615.05. License. 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 in compliance with this section. Subd. 1. 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 clerk -treasurer shall forward the application to the city council for action at its next regularly scheduled meeting. If the clerk -treasurer determines 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. Subd. 2. Action. The city council may either approve or deny the license, or it may delay action for such reasonable period of time as may be necessary to complete any investigation of the application or the applicant. If the city council approves the license, the clerk -treasurer 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. Subd. 3. Term. Each license shall be issued for a period of one calendar year. If the application is made during the license year, a license may be issued for the remainder of the licensed year on a pro rata basis. Any unexpired fraction of a month shall be counted as a complete month. Every license shall expire on December 31 of the license year. Subd. 4. Revocation or Suspension. Any license issued under this ordinance may be revoked or suspended as provided in sections 615.21 and 615.23 of this ordinance. Subd. 5. Transfers. All licenses issued under this ordinance shall be valid only on the premises RHB142424 ME230-5 3 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. 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 ordinance. Subd. 7. Display. All licenses shall be posted and displayed in plain view of the general public on the licensed premise. 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 by the licensee at least thirty days but no more than sixty days before the expiration of the current license. The issuance of a license issued under this ordinance shall be considered a privilege and not an absolute right of the applicant and shall not entitle the licensee to an automatic renewal of the license. Subd. 9. Fees. No license shall be issued under this ordinance until the appropriate license fee has been paid in full. The fee for a license under this ordinance shall be $125. 615.07. Basis for Denial of License. If a license is mistakenly issued or renewed to a person, it may be revoked upon the discovery that the person was ineligible for the license under this section. The following shall be grounds for denying the issuance or renewal of a license under this ordinance; however, except as may otherwise be provided by law, the existence of any particular ground for denial does not mean that the city council must deny the license: Subd. 1. The applicant is under the age of 18 years; Subd. 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; Subd. 3. The applicant has had a license to sell tobacco, tobacco products or tobacco related devices revoked within the twelve months preceding the date of application; Subd. 4. The applicant fails to provide any information required on the application, or provides false or misleading information; or Subd. 5. The applicant is prohibited by federal, state, or other local law, ordinance or other regulation from holding such a license. 615.09. Prohibited Sales. It shall be a violation of this ordinance for any person to sell or offer to sell any tobacco, tobacco product or tobacco related device as follows: Subd. 1. To any person under the age of 18 years; Subd. 2. By means of any type of vending machine, except as may otherwise be provided in this ordinance; RHB142424 ME230-5 4 Subd. 3. By means of self-service merchandising; Subd. 4. By means of loosies; Subd. 5. Containing opium, morphine, kimson weed, 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; or Subd. 6. 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. 615.11. Vending Machines. It shall be unlawful for any person licensed under this ordinance 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 by law from entering the licensed establishment. 615.13. Self -Service Merchandising. It shall be unlawful for a licensee under this ordinance to allow the sale of tobacco, tobacco products or tobacco related devices through self-service merchandising. Any licensee selling tobacco, tobacco products or tobacco related devices at the time this ordinance is adopted shall comply with this section within 60 days of its adoption and publication. 615.15. Responsibility. All licensees under this ordinance 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. The sale of any such item by an employee shall be considered a sale by the license holder and shall subject the license holder to the provisions of sections 615.21 and 615.23 of this ordinance. Nothing in this section shall be construed as prohibiting the city council from also subjecting the employee to appropriate penalties under this ordinance, state or federal law, or other applicable law or regulation. 615.17. 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 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 must have the written consent of their parents or guardians and 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 such items are obtained as a part of the compliance check. No minor engaged in a compliance check shall use or attempt to use false identification to misrepresent the minor's age. Minors engaged in a compliance check shall answer truthfully 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. RHB142424 ME230-5 5 615.19. Other Illegal Acts. Unless otherwise provided, the following acts shall be a violation of this ordinance: Subd. 1. Sales. For any person to sell or otherwise provide any tobacco, tobacco product or tobacco related device to any minor; Subd. 2. Possession. For any minor to have in his or her possession any tobacco, tobacco product or tobacco related device, excluding any minor lawfully involved in a compliance check; Subd. 3. Use. For any minor to smoke, chew, sniff, or otherwise use any tobacco, tobacco product or tobacco related device; Subd. 4. Procurement. For any minor to purchase or attempt to purchase or otherwise obtain any tobacco, tobacco product or tobacco related device; for any person to purchase or otherwise obtain any such item on behalf of a minor; or for any person to coerce or attempt to coerce a minor to purchase or otherwise obtain or use any tobacco, tobacco product, or tobacco related device in a manner contrary to law, excluding any minor lawfully involved in a compliance check; and Subd. 5. Use of False Identification. 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. 615.21. Violations. Subdivision 1. Notice. The city shall issue a notice of violation to any licensee suspected of violating any provision of this ordinance. The notice of violation shall be served on the licensee personally or by mail. The notice shall contain the alleged violation and a statement concerning the licensee's right to a hearing. Subd. 2. Hearing. If a person accused of violating this ordinance so requests, a hearing shall be scheduled before a hearing officer at a time and place which shall be published and provided to the accused violator. Subd. 3. Hearing Officer. The city council shall serve as the hearing officer in any hearing requested under this section. Subd. 4. Decision. Following the hearing, if the city council determines by a preponderance of the evidence that a violation of this ordinance occurred, that decision, along with the city council's reasons for finding a violation and the administrative penalty to be imposed under section 615.23 of this ordinance, shall be recorded in writing, a copy of which shall be provided to the accused violator. If the city council finds that no violation occurred or finds grounds for not imposing any administrative penalty, such finding shall be recorded and a copy provided to the accused violator. Subd. 5. Appeals. Any final decision by the city council under this section may be appealed to Hennepin County district court. Subd. 6. Continued Violation. Each violation, and every day in which a violation occurs or RHB142424 ME230-5 6 continues, shall constitute a separate offense under this ordinance. Subd. 7. Misdemeanor Prosecution. Nothing in this section shall prohibit the city from seeking misdemeanor prosecution for any alleged violation of this ordinance in addition to the administrative penalties specified herein. 615.23. Administrative Penalties. Subd. 1. Licensees. Any licensee who sells tobacco, tobacco products or tobacco related devices to a minor or whose employee sells tobacco, tobacco products or tobacco related devices to a minor shall be charged an administrative fine of $500 for a first violation, $750 for a second violation at the same licensed premises within a 24 month period and $1,000 for a third or subsequent violation at the same licensed premises within a 24 month period. Any licensee who sells tobacco, tobacco products or tobacco related devices to a minor or whose employee sells tobacco, tobacco products or tobacco related devices to a minor may also have his or her license suspended for up to 10 days for a first violation, up to 20 days for a second violation at the same licensed premises within a 24 month period, and up to 30 days for a third or subsequent violation at the same licensed premises within a 24 month period. Subd. 2. Employees of Licensees. Any employee of a licensee who sells tobacco, tobacco products or tobacco related devices to a minor shall be charged an administrative fine of up to $100 for a first violation, up to $300 for a second violation within a 24 month period and up to $500 for a third or subsequent violation within a 24 month period. Subd. 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 required to attend an appropriate education session concerning their violation and be required to serve up to 100 hours of community service, as determined by the city council. Subd. 4. Other Individuals. Any individual other than a licensee or employee of a licensee who sells tobacco, tobacco products or tobacco related devices to a minor shall be charged an administrative fee of up to $100 for a first violation, up to $300 for a second violation within a 24- month period and up to $500 for a third or subsequent violation with a 24-month period, subject to the right to a hearing before the city council as provided in section 615.21 of this ordinance. Nothing in this section shall prohibit the city or other jurisdiction from seeking criminal prosecution for any alleged violation of this ordinance by any individual other than a licensee or employee of a licensee. If the city or other jurisdiction seeks criminal prosecution under this subdivision, no administrative penalty shall be imposed. 615.25. Exceptions and Defenses. Nothing in this ordinance 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 a charge of violating this ordinance for a person to have reasonably relied on proof of age as described by state law. 615.27. Severability and Savings Clause. If any section or portion of this ordinance shall be found unconstitutional or otherwise invalid or unenforceable by a court of competent jurisdiction, that finding RHB142424 ME230-5 7 shall not serve as an invalidation or effect the validity and enforceability of any other section or provision of this ordinance. Section II. This ordinance shall take effect upon its adoption and publication in the city's official newspaper. Adopted by the city council of the City of Medina this 19 day of May, 1998. ATTEST: , Paul Robinson, Clerk -Treasurer Published in the Lakeshore Weekly News this 4il' day of June, 1998. RHB142424 ME230-5 8