98-010 ORDORDINANCE 98-10
AN ORDINANCE OF THE CITY OF ELK RIVER
AN ORDINANCE AMENDING SECTION 708 ENTITLED
~CIGARETTE SALES" BY REPEALING THE
ENTIRE SECTION AND ENACTING A
NEW SECTION 708 ENTITLED
~TOBACCO REGULATIONS"
Section 1. Section 708 of the Elk River Code of Ordinances
entitled "Cigarette Sales" is hereby repealed and replaced by a
new Section 708 entitled "Tobacco Regulations which shall read as
follows:"
Section 708 - TOBACCO REGULATIONS
708.00 - PURPOSE
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 such sales,
possession, and use are violations of both State and Federal
laws; and because studies, which are hereby accepted and adopted,
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 ordinance shall be intended to regulate the
sale, possession, and use of tobacco, tobacco products, and
tobacco related devices for the purpose of enforcing and existing
laws, to protect minors against the serious effects associated
with the illegal use of tobacco, tobacco products, and tobacco
related devices, and to prevent young people from starting to
smoke as stated in Minn. Stat. Section 144.391.
708.02 - DEFINITIONS AND INTERPRETATIONS
Except as may otherwise be provided or clearly implied by
context, all terms shall be given their commonly accepted
definitions. The singular shall include the plural and the
plural shall include the singular. The masculine shall include
the feminine and neuter, and vice-versa. The term "shall" means
mandatory and the term "may" means permissive. The following
terms shall have the definitions given to them:
Compliance Checks: means 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 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, 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: means 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
subdivision shall not be considered individually packaged.
Loosies: means the common term used to refer to a single or
individually packaged cigarette.
Minor: means any natural person who has not yet reached the age
of eighteen (18) years.
Moveable Place of Business: refers to any korm 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: means any place of business where tobacco,
tobacco products, or tobacco related devices are available for
sale to the general public. Retail establishments shall include,
but not be limited to, grocery stores, convenience stores, and
restaurants.
Sale: means any transfer of goods for money, trade, barter, or
other consideration.
Self-Service Merchandising: shall mean 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. Self-service
merchandising shall not include vending machines.
Tobacco or Tobacco Products: means any substance or item
containing tobacco leaf, including but not limited to,
cigarettes; cigars; cheroots; stogies; perique; granulated, plug
cut, crimp cut, ready-rubbed, and other smoking tobacco; snuff;
snuff flowers; cavendish; plug and twist tobaccos; fine cut and
other chewing tobaccos; shorts; refuse scraps, clippings,
cuttings, and sweepings of tobacco; and other kinds and forms of
tobacco prepared in such a manner as to be suitable for smoking,
chewing, sniffing, smoking in a pipe or other tobacco-related
devices.
Tobacco Related Devices: means any tobacco products 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.
Vendin~ Machine: means 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.
708.04 - 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 of the Elk River.
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 city clerk shall forward the
application to the City Council for action at its next regularly
scheduled council meeting.
2. Action. The City Council may either approve or deny the
license, or it may delay action for such 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 decision
pursuant to the appeal procedures in Section 700.10 of the City
Code.
3. Term. Ail licenses issued under this ordinance shall be
valid for one calendar year. Ail licenses shall expire on
December 31.
4. Revocation or Suspension. Any license issued under this
ordinance may be revoked or suspended as provided in the
Violations and Penalties section of this ordinance.
5. Transfers. Ail 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 prior approval of the City Council.
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.
7. Display. Ail licenses shall be posted and displayed in
plain view of the general public on the licensed premise.
8. Renewals. The renewal of a license issued under this
section shall be handled in the same manner as the original
application. 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 holder to an
automatic renewal of the license.
708.06 - FEES.
No license shall be issued under this ordinance until the
appropriate license fee shall be paid in full. The fee for a
license under this ordinance shall be established according to
the schedule of fees and amended from time to time by resolution
of the City Council. The schedule of fees, as amended from time
to time, is hereby adopted by reference and incorporated into
this ordinance. For licenses issued and which are to become
effective other than on the first day of the licensing year, the
fee to be paid with the application shall be a pro rata share of
the annual license fee.
708.08 - BASIS FOR DENIAL OF LICENSE.
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 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 section.
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
twelve 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 local law,
ordinance, or other regulation, from holding such a license.
6. Property taxes for the premises for which the license will
be issued are delinquent.
708.10 - SALES TO MINORS PROHIBITED.
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 to any person under the age of eighteen (18) years.
708.12 - 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 from entering the licensed
establishment.
708.14 - SELF-SERVICE SALES.
1. It shall be unlawful for a licensee under this ordinance to
allow the sale of single packages of cigarettes or smokeless
tobacco in open displays whereby the customer may have access to
such 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 single package of cigarettes or single package of
smokeless tobacco between the licensee or his or her clerk and
the customer.
A. Any retailer selling single packages of cigarettes or
smokeless tobacco at the time this ordinance is adopted,
shall comply with this Section within 30 days.
B. The self-service restrictions described in this
Section shall not apply to retail stores which derive at
least ninety percent 90% of their revenue from tobacco and
tobacco related products and which cannot be entered at any
time by persons younger than 18 years of age.
2. Cartons and other multi-pack units of packages of cigarettes
or smokeless tobacco may be offered and sold through open
displays accessible to the public.
A. Section 708.14 (2) of this ordinance will expire upon
the effective date and implementation of Code of Federal
Regulations, Title 21, Part 897.16(c) .
708.16 - RESPONSIBILITY.
Ail 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, and the sale of such 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
Ordinance, State or Federal law, or other applicable law or
regulation.
708.18 - COMPLIANCE CHECKS AND INSPECTIONS.
1. Inspections. Ail licensed premises shall be open to
inspection by the Elk River Police Department or other authorized
city official during regular business hours.
2. Compliance Checks. From time to time, but at least once per
year, the city shall conduct unannounced compliance checks at
each location where tobacco is sold to test compliance with
Minn. Stat. Section 609.685.
3. Minors Involved in Compliance Checks. The City shall conduct
compliance checks by engaging, with the written consent of their
parents or guardians, minors over the age of fifteen (15) years
but less than eighteen (18) years, to enter the licensed premise
to attempt to purchase tobacco, tobacco products, or tobacco
related devices.
A. Minors used for the purpose of compliance checks shall
be supervised by designated law enforcement officers or
other designated city personnel.
B. Minors used for compliance checks shall not be guilty
of the unlawful purchase or attempted purchase, nor the
unlawful possession of tobacco, tobacco products, or tobacco
related devices when such items are obtained or attempted to
be obtained as a part of the compliance check.
C. 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.
4. State/Federal Compliance Checks. 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.
708.20 - OTHER ILLEGAL ACTS.
1. Illegal Sales. It shall be a violation of this ordinance
for any person to sell or otherwise provide any tobacco, tobacco
product, or tobacco related device to any minor.
2. Illegal Possession. It shall be a violation of this
ordinance for any minor to have in his or her possession any
tobacco, tobacco product, or tobacco related device. This
subdivision shall not apply to minors lawfully involved in a
compliance check.
3. Illegal Use. It shall be a violation of this ordinance for
any minor to smoke, chew, sniff, or otherwise use any tobacco,
tobacco product, or tobacco related device.
4. Illegal Procurement. It shall be a violation of this
ordinance 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 ordinance for any
person to purchase or otherwise obtain such 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 subdivision shall not apply to minors lawfully
involved in a compliance check.
5. Use of False Identification. It shall be a violation of
this ordinance 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.
708.22 - PENALTIES.
1. Licensees. Any licensee found to have violated this
ordinance, or whose employee has violated this ordinance, shall
be charged an administrative penalty of $75 for a first violation
of this ordinance; $200 for a second offense at the same licensed
premises within a twenty-four (24) month period; and $250 for a
third or subsequent offense at the same location within a twenty-
four (24) month period. In addition, after the third offense,
the license shall be suspended for not less than seven (7) days.
2. Other Individuals. Other individuals, other than minors,
found to be in violation of this ordinance shall be charged an
administrative penalty 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 charged an
administrative penalty of one hundred dollars ($100) and/or be
required to complete tobacco related education classes, diversion
programs, or community services.
4. Notice. No penalty or suspension may take effect until the
licensee or other individual has received notice served
personally by mail, of the alleged violation and of the
opportunity for an administrative hearing pursuant to Section
708.24 of this ordinance.
5. Misdemeanor. Nothing in this Section shall prohibit the
city from seeking prosecution as a misdemeanor for any alleged
violation of this ordinance. If the City elects to seek
misdemeanor prosecution, such action shall not prohibit an
administrative penalty from also being imposed.
708.24 - ADMINISTRATIVE HEARING PROCESS.
1. If a person accused of violating this ordinance so requests
within forty-five (45) days from the date of the notice, an
administrative hearing shall be scheduled, the time and place of
which shall be published and provided to the accused violator.
2. Hearing Officer. The hearing shall be conducted by a
person authorized by the City to conduct the hearing. It shall
be the duty of the hearing officer to determine whether a
violation of the city's tobacco ordinance has occurred.
3. Hearing. The hearing must be scheduled within fourteen (14)
days of the request. Notice of the date, time and place of the
hearing must be provided to the accused at least ten (10) days
prior to the hearing. At the hearing, the alleged violator should
again be informed of the charges, the basis of the charges, and
be given the opportunity to provide his/her response. The person
should be allowed to present any evidence he or she believes to
be relevant. Any evidence the City has collected should also be
made a part of the record at the administrative hearing.
Following the review of any evidence and testimony, the hearing
officer shall determine whether a violation has occurred, and if
so, the penalty. The decision of the hearing officer shall be in
the form of a written findings-of-fact, conclusions and an order
that provides the reasons for the final decision. A copy of the
hearing officer's findings-of-fact, conclusions and order shall
be provided to the alleged violator.
4. Post-Hearing. If a penalty is imposed, the violator shall
be informed where and how to pay the penalty and of the right to
appeal the hearing officer's order pursuant to Minn. Stat.
Section 461.12, subd. 7, as amended.
5. Failure to Pay Administrative Penalty. If the violator
fails to pay the administrative penalty, the city may coiiec5 the
delinquent penalty by any legal means.
708.26 - EXCEPTIONS AND DEFENSES
Nothing in this ordinance shall prevent the provision 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 violation of
this ordinance for a person to have relied in good faith upon
proof of age as described in Minn. Stat. Section 340A, 503, subd.
6, as amended.
708.28 - 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 shall not serve as an invalidation or
effect the validity and enforceability of any other section or
provision of this ordinance.
Section 2. This ordinance shall take effect on July 1, 1998, upon
publication as provided by law.
Passed and adopted by the City Council of the City of Elk River
this 1st day of June, 1998.
/ Hen~ A. Dultsman
/ May~t
~a~dra A. Thackeray
City Clerk
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