HomeMy Public PortalAbout495CITY OF MEDINA
ORDINANCE NO.495
AN ORDINANCE AMENDING SECTION 615 TOBACCO, TOBACCO PRODUCTS
AND TOBACCO RELATED DEVICES
THE CITY COUNCIL OF THE CITY OF MEDINA, MINNESOTA ORDAINS AS
FOLLOWS:
SECTION I. Section 615 of the Medina code of ordinances is amended by adding the
double underlined material and deleting the strieken material as follows:
615. TOBACCO, rnu A —CO PRODUCT
AND TOBACCO -RELATED DEVICES.
Section 615.01. Purpose. The city recognizes that many persons under the age of 18 years minors
purchase or otherwise obtain, possess, and use tobacco, tobacco products and or 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 tobaccoTtebaeseiffe s 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 tobacco--tebeese-pfedHets 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 144.391.
Section 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. Tobacc . "Tobacco" "
>gFallehttekPkitelitililM3-eliti-feadY-"Fl4919edrallel-Ealler-Sfneking4e4aeeet-Sntlff4leWefSi
means 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 anv component. part 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;
Ordinance No. 495
October 5, 2010
1
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.
Subd. 2. Tobacco -related Devices. "Tobacco -related devices"
means cigarette papers or pipes for smoking.
Subd. 3. Self -Service Merchandising. "Self -Service Merchandising" shall mean open
displays of tobacco obacce e s 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 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.
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, ducts 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,tebaeee-preduct 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 ducts shall include, but not be limited to, single cigarette packs,
single bags or cans of loose tobacco in any form, and single cans or other packaging of snuff
or chewing tobacco. Cartons or other packaging containing more than a single pack or
other container as described in this subdivision shall not be considered individually
packaged.
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, ducts or tobacco=related devices are available for sale to the
general public, 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
Ordinance No. 495 2
October 5, 2010
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;
to produts 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, tobaeeepreduets or tobacco -related devices for
educational, research and training purposes as authorized by state or federal law.
Section 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, tobaeeeproduets 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 '
appeal4he-ei4y-eetineills-Eleei-sien.
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 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
Ordinance No. 495 3
October 5, 2010
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 chapter shall be set by ordinance in the
city fee schedule, as it may be amended from time to time.
Subd. 10. Notice to Commissioner. The clerk shall, within 30 days of the issuance of a
license, inform the commissioner of revenue of the licensee's name, address, trade name,
and the effective and expiration dates of the license. The commissioner of revenue must
also be informed of a license renewal, transfer, cancellation, suspension, or revocation
during the license period.
Section 615.07. Basis for Denial or Revocation of License. Ifa'icense t ken'y iss„ed
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 a minor;
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
tobacco preduets, or tobacco_related devices;
Subd. 3. The applicant has had a license to sell tobacco, duets 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.
Ordinance No. 495 4
October 5, 2010
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.
Section 615.09. Prohibited Sales. It shall be a violation of this ordinance for any person to sell or
offer to sell any tobaccor telmkeee-preduct or tobacco -related device as follows:
Subd. 1. To any minor;
Subd. 2. By means of any type of vending machine, except as may otherwise be provided in
this ordinance;
Subd. 3. By means of self-service merchandising;
Subd. 4. By means of loosies;
Subd. 5. Containing opium, morphine, jimson 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.
Section 615.11. Vending Machines. It shall be unlawful for any person licensed under this
ordinance to allow the sale of tobacco,tebasse e s 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.
Section 615.13. Self -Service Merchandising. It shall be unlawful for a licensee under this
ordinance to allow the sale of tobacco; tobasse-products or tobacco:related devices through self-
service merchandising. Any licensee selling tobacco,tebasse e s or tobacco -related devices
at the time this ordinance is adopted shall comply with this section within 60 days of its adoption
and publication.
Section 615.15. Responsibility. All licensees under this ordinance shall be responsible for the
actions of their employees in regard to the sale of tobaccor tebaseeimeduets 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.
Section 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
Ordinance No. 495 5
October 5, 2010
minors over the age of 15 years but less than 18 years to enter the licensed premise to attempt to
purchase tobacco, dusts 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 obasse-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.
Section 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, mace -poet 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,tebaeee
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.
Section 615.21. Violations.
Subd. 1. Notice. The city shall issue a notice of violation to any licensee, employee of the
licensee, or individual suspected of violating any provision of this ordinance. The notice of
violation shall be served on the licensee, employee of the licensee, or individual 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 licensee, employee of the licensee, or individual accused of
Ordinance No. 495 6
October 5, 2010
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
continues, shall constitute a separate offense under this ordinance.
Subd. 7. Misdemeanor Criminal Prosecution. Nothing in this section ordinance shall
prohibit the city from seeking misdemeanor criminal prosecution for any alleged violation
of this ordinance in addition to the administrative penalties specified herein.
Section 615.23. Administrative Penalties.
Subd. 1. Licensees. Any licensee who sells tobacco,tebaeco prods or tobacco -related
devices to a minor or whose employee sells tobacco,ebaeee e s 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,tebacco prods 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,tebasse 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 chief of
Ordinance No. 495 7
October 5, 2010
police. Any minor aggrieved by a decision of the chief of police in such instance may appeal
the decision to the city council by providing written notice to the clerk within 10 days of the
date of receipt of written notice of the decision by the chief of police.
Subd. 4. Other Individuals. Any individual other than a licensee or employee of a licensee
who sells tobacco,tebacco 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.
Section 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
Minnesota Statute 340A.503, subd. 6.
Section 615.27. Severabilitv 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 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 become effective upon its adoption and publication.
Adopted by the city council of the city of Medina this 5th day of October, 2010.
T.M. Crosby, Jr., Mayor
ATTEST:
Chad M. Adams, City Administrator -Clerk
Published in the South Crow River News this 8th day of October, 2010.
Ordinance No. 495 8
October 5, 2010