3.3. SR 04-27-1998ITEM 3.3.
of
River
MEMORANDUM
TO:
FROM:
DATE:
Mayor and City Council
Sandra Thackeray, City Clerk
February 24, 1998
SUBJECT: Review of DRAFT Tobacco Ordinance
A state law was passed during the 1997 legislative session requiring
local governments to adopt a tobacco ordinance that at least meets
the state minimum requirements.
PURPOSE: To reduce illegal youth access to tobacco products.
The City's existing tobacco ordinance does not meet state
requirements and, therefore, must be amended. Prior to drafting
this ordinance, staff has reviewed draft ordinances from the League
of Minnesota Cities, the Retailers Association, and Sherburne
County. This draft ordinance has also been reviewed by the City's
Attorney, Kevin Johnson.
The ordinance before the council is in draft form and is presented
for discussion. This ordinance will not be adopted on April 27. State
law requires that the city must give general notice of its intent to
adopt the tobacco ordinance by sending mailed notice at least 30
days before the Council's hearing on the ordinance to each licensee
or person required to hold a license. Even though this is not the
actual hearing for adoption of the ordinance, the city has opted to
send a notice of this first review to licensees and tobacco retailers so
that they can comment on the draft ordinance. Following review of
the draft ordinance by the Council, staff will set a date for actual
adoption of the ordinance and the retailers and licensees will be
given notice of that meeting.
Listed below are some of the major provisions in the ordinance.
These provisions are State minimum requirements which must be
included in the City's ordinance.
13065 Orono Parkway · P.O. Box 490 · Elk River, MN 55330 · TDD & Phone: (612) 441-7420 · Fax: (612) 441-7425
City Council Memo
Tobacco Ordinance
April 27, 1998
Page 2
· Licensing of all tobacco retail outlets and establishment of license
fee to cover costs of licensing and enforcement
· Ban on self-service displays of single packs of cigarettes and
smokeless tobacco
· Ban on vending machines, except in facilities that cannot be
entered by minors
· Mandatory compliance checks at least onceper year
· Graduated penalties against the license holder for the illegal sale
of tobacco to minors
· Alternative penalties for minors found to have purchased, used or
possessed tobacco illegally
· Establishment of an administrative hearingpanel and
administrative hearing process
All of these issues have been included in the City's draft tobacco
ordinance. Keep in mind that although the City must comply with
the requirements of State law, it may also be more restrictive than
State law.
The above issues will be addressed in this memo with an explanation
as to how the City's ordinance compares to State law and to the
County's ordinance. Sherburne County recently held its hearing
and has adopted its ordinance which will go into effect on July 1.
The County's ordinance does not apply in any city that has retained
its licensing authority, such as the City of Elk River. It has been
staffs intention not to be much more restrictive than State law.
Staff also feels that the City ordinance should be somewhat
consistent with Sherburne County's ordinance. As you will note
below, the County has chosen to be more restrictive in certain areas
than the State law.
1. Licensing of all tobacco retail outlets. The City currently
licenses all tobacco sales under its current cigarette ordinance. The
City will continue to license all tobacco sales under the new
ordinance.
· City Existing Fee - $25.00 per year.
· City Proposed New Fee - $100.00 per year.
· County New Fee - $50.00 per year.
City Council Memo Page 3
Tobacco Ordinance
April 27, 1998
2. Ban on self-service displays o£ sin~le ~acks of cigarettes and
smoheless tobacco.
City The proposed ordinance bans open display of single packs
of cigarettes and smokeless tobacco. (Open display means that
the customer may have access to such items without having to
request the item from a sales clerk).
County Total ban on open displays of all tobacco products
including cigarette cartons and cigars.
State The City's proposal is consistent with State law. However,
there is a federal regulation requiring the ban of self service
displays with respect to cartons and other multi-pack units that is
scheduled to take effect pending the outcome of a legal challenge.
At the time this federal requirement takes effect, it will also be
incorporated automatically into the City's ordinance. It should
be noted that the federal regulation, and the City ordinance, do
not ban self service displays of cigars.
3. Ban on vending machines, except in facilities that cannot be
entered by minors.
City Vending machine sales of tobacco prohibited unless minors
are at all times prohibited from entering the licensed
establishment. (Keep in mind that there are no establishments in
Elk River that prohibit minors to enter).
· County Total ban on all vending machine tobacco sales.
· State Same language as City.
4. Mandato~, compliance checks at least once per year.
· City From time to time, but at least once per year. (The City
currently does two compliance checks per year).
· County Same as City.
· State Same as City and County.
5. Graduated penalties against the license holder for the illegal
sale of tobacco to minors.
City
Ist offense - administrative penalty $75
2nd offense - administrative penalty $200
3rd offense - administrative penalty $250 and suspension
of license for not less than seven days.
(All within a 24 month period)
City Council Memo
Tobacco Ordinance
April 27, 1998
· County Same as City.
· State Same as County and City.
Page 4
6. Alternative penalties for minors found to have purchased, used
or possessed tobacco illegally.
· City Charge an administrative penalty of $50 and/or be required
to complete tobacco related education classes, diversion
programs, or community services. The City can still seek
misdemeanor prosecution for violations of this ordinance.
· County Same as city except amount of fine is not determined.
· State Requires licensing authority to develop alternative
penalties for minors. City's ordinance complies with this
requirement.
7. Establishment of an administrative hearing panel and
administrative hearing process.
· City. The Administrative Hearing Panel shall consist of the
members of the City Council. (The hearing panel can be
whomever the Council deems. The opportunity for an
administrative hearing must be afforded to alleged violators of
this ordinance except for those violations treated by prosecution).
· County. The hearing officer shall be appointed by the County
Board. (I understand that it is the County's intention to contract
with an attorney or some other consultant for this position on an
as needed basis).
· State. The State defines the hearing board as "a person
authorized by the licensing authority to conduct the hearing."
ORDINANCE ADOPTION PROCESS:
This is not the actual public hearing for adopting the City's tobacco
ordinance. However, the purpose of the meeting is to hear issues
and concerns of the licensees and tobacco retailers. Therefore,
public comment would be appropriate to help the Council
determine if the above issues are of concern.
COUNCIL ACTION REQUESTED:
Council is requested to review and comment on issues 1-7. If there is
concern, it should be noted at this time, prior to the final ordinance
City Council Memo Page 5
Tobacco Ordinance
April 27, 1998
adoption. The Council can also comment on the ordinance in its
entirety.
Staff is looking for direction to draft the final tobacco ordinance
which will be before the Council on June Ist.
\\elkriver\sys\shrdoc\council\tobacmem.doc
"DRAFT"
CITY OF ELK RIVER
Section 708 - TOBACCO ORDINANCE
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 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: 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.
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.
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 multipack 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 - CO~LI~-NCE 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 fifty dollars ($50) 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,
an administrative hearing shall be scheduled, the time and place
of which shall be published and provided to the accused violator.
2. Hearing Panel. The administrative hearing panel shall
consist of the members of the City Council. It shall be the duty
of the administrative hearing panel 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 and shall take place in conjunction with a
regularly scheduled city council meeting as a separate process
either before or after the regularly scheduled city council
meeting. 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
panel shall determine whether a violation has actually occurred,
and if so, the penalty . The decision of the hearing panel
shall be supported by a findings-of-fact and order that provides
a detailed summary supporting the final decision. A copy of the
order and the findings-of-fact 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 order pursuant to Minn. Stat. Section 461.12, subd.
7, as amended.
5. Failure to Pay Administrative Penalty. If the violtor
fails to pay the administrative penalty, the city may collect the
delinquent fine 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.
X\elkriverksys\shrdoc\document\or~nanc\tobacco3.doc'