ORD 15-01Ordinance 15 - 01
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An Ordinance Amending Chapter 26, Article 11, Tobacco of the City of Elk River,
Minnesota, City Code Relating to E- Cigarette Licensing
The City Council of the City of Elk River does hereby ordain as follows:
SECTION 1. That § 26 -31, Definitions shall be amended to read as follows:
The following words, terms and phrases, when used in this article, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
Covapliance checks means the system the city uses to investigate and ensure that those authorized
to sell tobacco, tobacco products, tobacco- related devices, nicotine, or electronic delivery,
devices are following and complying with the requirements of this article. Compliance checks shall
involve the use of minors as authorized by this article. Compliance checks shall also mean the use of
minors who attempt to purchase tobacco, tobacco products, or tobacco - related devices, nicotine, or
electronic deliver- 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, -av� tobacco- related devices, nicotine, or electronic delivertl devices.
Electrotnic Deliver, Device means any product containing or delivering nicotine, lobelia, or an
other substance intended for human consumption that can be used b, a person to simulate smoking
in the deliver, of nicotine or any other substance through inhalation of vapor from the product.
Electronic deliver, device sl.iall include am component hart of such a product that is not tobacco as
defined in this section, whether or not sold selnarately,. Electronic delivery device shall not include
any product that has been approved or otherwise certified by the United States Food and Drug
Administration for legal sales for use in tobacco cessation treatment, harm education or for other
medical purposes, and is bein� marketed and sold sole], for that approved purpose.
Indh4dual6) 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 cheering tobacco. Cartons or other packaging containing more than a
single pack or other container as described in this article shall not be considered individually
packaged.
.Loonies is 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 18 years.
Moveable place of Imsiness means any form of business operated out of a kiosk, truck, van,
automobile, or other type of vehicle or transportable shelter and not a fixed address storefront or
other permanent type of structure authorized for sales transactions.
Retail establishment means any place of business where tobacco, tobacco products, et tobacco -
related devices, nicotine, or electronic delivery devices are available for sale to the general public.
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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 merchandiang means open displays of tobacco, tobacco products, et tobacco - related
devices, nicotine, or electronic delivery devices in any manner where any person shall have access to
the tobacco, tobacco products, e} tobacco - related devices, nicotine, or electronic delivery 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, et tobacco -
related device, nicotine, or electronic deliveryl device between the customer and the licensee or
employee. Self- service merchandising shall not include vending machines.
Tobacco and tobacco product mean any substance or item containing tobacco leaf, including but not
limited to: cigarettes; cigars; cheroots; stogies; periques; 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, absorbing, dissolving, inhaling, snorting, ingesting, sniffing, smoking in a pipe or other
tobacco - relaxed devices.
Tobacco products shop means a place of business that derives more than 90 percent of its gross
revenue from the sale of tobacco and tobacco products or tobacco- related devices and in which the
sale of other products is merely incidental.
Tobacco- related device 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,
inhalation of vapors or smoking of tobacco or tobacco products,
Vending machine means any mechanical, electric or electronic or other type of device which dispenses
tobacco, tobacco products, et-tobacco-related devices, nicotine, or electronic delivei:7, 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, nicotine, or electronic
delivery device.
SECTION 2. That � 26 -32, Purpose of article shall be amended to read as follows:
Because the city recognizes that many persons under the age of 18 years purchase or otherwise
obtain, possess, and use tobacco, tobacco products, aid tobacco - related devices, nicotine, and
electronic delivery devices, and that 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 article shall be intended
to regulate the sale, possession, and use of tobacco, tobacco products, *R4 tobacco- related devices,
nicotine, or electronic delivery devices for the purpose of enforcing existing laws, to protect minors
against the serious effects associated with the illegal use of tobacco, tobacco products, ar�d tobacco -
related devices, nicotine, or electronic delivery devices and to prevent young people from starting to
smoke as stated in Minn. Stats. � 144.391.
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SECTION 3. That � 26 -33, Responsibility of licensee for acts of employees shall be amended
to read as follows:
All licensees under this article shall be responsible for the actions of their employees in regard to the
sale of tobacco, tobacco products, et tobacco - related devices, nicotine, or electronic delivery 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 article, state or federal law, or
other applicable law or regulation.
SECTION 4. That X26 -35, Compliance checks shall be amended as follows:
(a) Authoaz.ed. From time to time, but at least once per year, the city shall, conduct unannounced
compliance checks at each location where tobacco tobacco related devices nicotinc or
electronic delivery devices are fill sold to test compliance with Minn. Stats. § 609.685 and
609.6855.
(b) Use of minors to conduct checks.
(1) 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 premises to attempt to purchase tobacco, tobacco products, et tobacco - related
devices nicotine or electronic deliver- devices.
(2) Minors used for the purpose of compliance checks shall be supervised by designated law
enforcement officers or other designated city personnel.
(3) Minors used for compliance checks shall not be guilty of the unlawful purchase or
attempted purchase or the unlawful possession of tobacco, tobacco products, e{ tobacco -
related devices, nicotine, or electronic delivery devices when such items are obtained or
attempted to be obtained as a part of the compliance check.
(4) 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 employee, and
shall produce any identification, if any exists, for which he is asked.
(c) State and 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.
SECTION 5. That §26 -36 Exceptions and defenses shall be amended as follows:
Nothing in this article shall prevent the provision of tobacco, tobacco products, er tobacco -
related devices nicotine or electronic delivery 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
article for a person to have relied in good faith upon proof of age as described ul Minn. Rats,
340A.503, subd. 6.
The penalties in section 26 -73 da not apple to a person under th_ e of 18 nears who
purchases or attempts to l7urchase tobacco, tobacco related devices or electronic deliverva devices
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while under the direct std -)cii,isiota of -a responsible adult for trafflitig, education, research, or
enforcement 1ug)oses.
A product containing or delivering nicotine intended for human consumption, or any part of such a
product, that is not tobacco or an electronic delivery device, as defined by section 26 -31, may be
sold to pcysons Linder the age of 18 if the product has been approved or otherwise certified for legal
sale by the United States Food and Drug Administration for tobacco use cessation, harm reduction,
or for other medical purposes, and is being marketed and sold solely for that aj3proved purpose.
SECTION 6. That §26-37 Violations relating to underage persons shall be amended as follows:
(a) Illegal sales. It shall be a violation of this article for any person to sell or offer to sell any tobacco,
tobacco product, otrtobacco-related device, rticotine, or electronic delivery devices to any
person under the age of 18 years.
(b) Illegal possession. It shall be a violation of this article for any Minor to have in his possession any
tobacco, tobacco product, or- tobacco- related device, nicotine, or electronic delver, devices.
This subsection shall not apply to minors lawfully involved in a compliance check.
(c) Illegal use. It shall be a violation of this article for any minor to smoke, chew, sniff, or otherwise
use any tobacco, tobacco product, ot-tobacco-related device, nicotine, or electronic delivery
devices.
(d) Illegal procurement. It shall be a violation of this article for any minor to purchase or attempt to
purchase or otherwise obtain any tobacco, tobacco product, or-tobacco-related device, nicotine,
or electronic dehveQ7 devices and it shall be a violation of this article 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, tw-tobacco-related device, nicotine, or electronic cleliveQ7 devices.
This subsection shall not apply to minors lawfully involved in a compliance check.
(e) Use of false identification. It shall be a violation of this article for any minor to attempt to disguise
his 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 7. That §26-38 Vending machines shall be amended as follows:
It shall be unlawful for any person to sell tobacco, tobacco products, or tobacco - related devices,
nicotine or electronic dchvery devices by the means of a vending machine, except in a licensed
tobacco products shop.
SECTION 8. That §26-39 Self-service sales shall be amended as follows-.
(a) Single packages.
(1) It shall be unlawful for a licensee under this article to allow the sale- of single packages of
cigarettes, of sffi keless tobacco, tobacco related devices —nicotine , or electronic deliver -i7
devices in open displays where the customer may have access to such items without having
to request the item from the licensee or the licensee's employee and there is not a physical
exchange of the single package of cigarettes, tobacco, tobacco related device, nicotine, or
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electtoiiic deliver, dej,jce oy sifig between the licensee or
his clerk and the customer.
(2) Any retailer selling single packages of the iterns described in Subsection (a}(1) of this
Section, at the time of adoption of the ordinance from
which this article is derived shall comply with this section within 30 days.
(b) Cartons and multipack units.
(1) Cartons and other multipack units of packages of cigarettes may be offered and sold
through open displays accessible to the public.
(2) Subsection (b)(1) of this section will expire upon the effective date and implementation of Code
of Federal Regulations tide 21, part 897.16(c).
SECTION 9. That §26 -41 Sale of electronic delivery device; packaging shall be added as
follows:
(a) For purposes of this section, "child - resistant packaging," z� s defined as set forth in Code of Federal
Regulations, title 16, section 1700.150)(1), as in effect on Januar), 1, 2075 %T=hen tested in
accordance wish the method described in Code of 1 "ederal Regulations, title 16, seciiot7 1700.20, as
in effect on Jaiiumy 1, 2015.
h) The sale of any liauid, whether or not such liauid contains nicotine, that is intended for human
col)Ssumhtion and use in an electronic deliver, = device, as defined in section 26 -31, that is not
contained in packaging, that is child- resistant is I)rohibited. All licensees under this chapter must
ensure that ami liauid intended for human consunantion and use in an elecu-onic delivers, device is
sold in child- resistanttpackaging
(c) A licensee that fails to coniph7 with this section is subject to adrniiZistriUyc penalties under
section 26 -73
SECTION 10. That §26 -66 Term shall be amended as follows:
All licenses issued under this division shall be valid for one calendar year. All licenses shall expire on
December 31" of the year in which the�� were issued.
SECTION 11. That 526 -67 Required shall be amended as follows:
No person shall sell or offer to sell any tobacco, tobacco products, of tobacco - related devices
nicotine, or electronic delivery devices without first having obtained a license to do so from the city.
SECTION 12. That §26 -69 Grounds for denial, er revocation, suspension shall be amended as
follows:
(a) All license applications under this division shall be made to the city clerk and referred to the
chief of police and such other municipal departments or offices as the city clerk deems
necessary for verification and investigation of the facts set forth in the application. The chief of
police and other department heads or officers consulted shall submit their reports and
recommendations to the city clerk.
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(b) The existence of any particular ground for denial, er- revocation, or suspension does not mean
that the city must deny, or revoke, or suspend 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.
(c) The council shall have the discretion to consider, in granting, denying, revoking, suspendiing, or
renewing a license, any reasonable facts or circumstances relating to public health, safety, and
welfare, including but not limited to the following:
(1) 'ne 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, tobacco
products, or tobacco - related devices, nicotine, or electronic de�evices.
(3) The applicant has had a license to sell tobacco, tobacco products, of tobacco - related
devices nicotine or electronic delivery devices revoked or suspended within the preceding
three years 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) Any taxes or utility bills for the premises for which the license will be issued are delinquent.
(7) Failure to pay the yearly application fee.
(d) Where a reasonable basis is found by the council to impose reasonable restrictions on the
license, taking into consideration one or more of the facts or circumstances, the council may
upon issuance or renewal of a license impose such reasonable conditions and restrictions on the
manner and circumstances under which the licensed activity shall be conducted to preserve the
public peace and protect and promote good order and security.
(e) Failure of any person to comply with any of the ordinances of the city or the laws of the state
shall be grounds for denying, of revoking or suspending; a license granted under this division. If
a license is proposed to be denied, et revoked or suspended by the city council, the city must
notify the applicant with the reason(s). The applicant shall be allowed an opportunity for a
hearing pursuant to chapter 38, article Il of this Code.
SECTION 13. That §26 -71 No transfers shall be amended as follows:
(a) All licenses issued under this division 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. Relocation or sale of the business shall require the
approval and issuance of a new license.
(b) Transfer of 25 percent or more of the ownership interest of a business entity, or of a
controlling interest of it, whichever is less, will be deemed a sale of the business. If the licensee
is a business entity that is wholly owned by another entity, the same provisions about the
transfer of ownership or a controlling interest will apply to the parent entity and any second
parent entity that wholly owns the parent entity.
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(c) A sale of the business as defined in this section without the approval and issuance of a new
license shall result in the unlicensed sale of tobacco, tobacco products, mx-d tobacco related
devices nicotine, or electronic delit'cry deyFices, as the case may be. Transfer of this amount of
ownership interest without prior council approval is a ground for revocation or suspension of
the license. In addition, each day the licensee operates under the license after a transfer has
taken place without obtaining council approval will be a separate violation of this article.
SECTION 14. That X26 -73 Penalty shall be amended as follows:
(a) Licensees. Any licensee found to have violated this article, or whose employee has violated this
article, shall be charged an administrative penalty of $75.00 for a first violation of this article,
$200.00 for a second offense at the same licensed premises within a 24 -month period, and
$250.00 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.
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1. Whoever sells tobacco, tobacco products. tobacco - related devices, aj)roduct contaitning or
dchveringnicotine or lobelia intended for hurnan consutnption, or any part of such product
that is not tobacco or an electronic delivery device as de #used bl� Section 2G -31,to a person
under the a,<e of 18 olates
this article a subsequent titre t��ithin fie e ve.ars of as ��rel�ious conviction under this article is
guilty of a gloss trusdetneanor subject to the e ceptions and defenses set forth in Section 26 -36.
(c) 01her of jell res.
1. Whoever funushes tobacco, tobacco- related devices, nicotine, or electronic delilrerti= devices_
to a person under the ag< of 18 years, is guilr�- of a nusdememor for the first violation.
Whoever violates this article a subsequent time within five years of a previous conviction
under this article is �ui4t�of as gross tnisdenieanor.
1 A person under the age of 18 years vybo purchases or attetnpts to purchase tobacco,
tobacco - related devices_ a product containing, or delivenng_mcotine or lobelia intended for
human eonsumpboo_ or any part of such a product, that is not tobacco or an electronic
delivery device as defined by Section 26-31, and who uses a driver's license, permit,
Minnesota identification s
2e, is Quiln of a misdemeanor.
-(d) 1'em) isderneranor Except as othewise provided in subdivision c, a person under the age of 18
bears, who possesses, strokes, chews. or otherwise ingests, purchases, or atte rnr)ts to purchase
tobacco, tobacco - related devices, nicotine, or electronic delivery deykes. is gu��
tisdemeanor.
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f 17-17 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 a
hearing pursuant to chapter 38, article 11.
{e Prosetzation of violation as misdemeanor Nothing in this section shall prohibit the city from seeking
prosecution as a misdemeanor for any alleged violation of this article or state law. If the city
elects to seek misdemeanor prosecution, such action shall not prohibit an administrative penalty
from also being imposed.
{€� Unless otherwise noted, any person violating any provision of this article or of any other
law shall be guilty of a misdemeanor, and upon conviction shall by subject to the penalties for a
misdemeanor as prescribed by state law. Each day a violation continues shall be considered a
separate misdemeanor offense punishable by a separate misdemeanor penalty. A fine or sentence
imposed does not affect the right of the city to suspend or revoke the license of the licensee as the
city council deems appropriate.
SECTI ®N 15. That this ordinance shall take effect upon adoption and be published as provided by
law.
Passed and adopted by the City Council of the City of Elk River this 5th day of January, 2015.
J n J. ietz, a r
ATTEST:
L
Tina Allard, City Clerk
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K ' 1 G U -�'
AFFIDAVIT OF PUBLICATION
STATE OF MINNESOTA ) ss
COUNTY OF SHERBURNE )
Charlene Vold being duly sworn on an oath,
states or affirms that they are the Authorized
Agent of the newspaper(s) known as:
Star News
and has full knowledge of the facts stated
below:
(A) The newspaper has complied with all of
the requirements constituting qualifica-
tion as a qualified newspaper as provided
by Minn. Stat. §331A.02, §331A.07, and
other applicable laws as amended.
(B) This Public Notice was printed and pub-
lished in said newspaper(s) for 1 succes-
sive issues; the first insertion being on
01/17/2015 and the last insertion being on
01117/2015.
By: S=M L44-X vd—L—L
Authorized Agent
Subscribed and sworn to or affirmed before
me on 0 1117/2015.
M �
Djct���
Notary Public
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Ad ID 335677
CITY OF ELK RIVER
RESOLUTION 15-02
Councilmember Westgaard in-
troduced the following resolution
and moved its adoption:
Resolution 15 -02
A Resolution of the City of Elk
River Approving Notice of Summa-
ry Publication of Ordinance #15 -01
an Ordinance Amending Section 26
Article II of the Tobacco Ordinance
Relating to E- Cigarette Licensing
WHEREAS, on January 5, 2015,
the Elk River City Council adopted
Ordinance 15 -01 amending Section
26, Article II, of the Elk River Code
Of Ordinances; and
WHEREAS, Ordinance 15-11 is
lengthy for publication and state
law allows for a summary of the or-
dinance to be published; and
WHEREAS, the summary of
Ordinance 15 -01 amending the to-
bacco ordinance is as follows:
• Electronic delivery device de-
fined.
• Nicotine and electronic deliv-
ery devices incorporated through-
out the tobacco licensing ordi-
nance; a license would be required
to sell these products and would be
subject to compliance checks,
• Electronic delivery devices
cessation products approved by
the US Food and Drug Administra-
tion can be sold to minors and a
license is not required to sell them.
• Child resistant packaging
standards for electronic delivery
devices defined and to take effect
January 2015.
• Penalty section is more specif-
ic to the type of offense committed.
• Grounds for denial/revocation
section amended to include license
suspensions.
WHEREAS, a copy of the full
text of the ordinance is available
for inspection by any person at the
office of the Elk River City Clerk,
13065 Orono Parkway, during regu-
lar business hours; and
NOW, THEREFORE, BE IT RE-
SOLVED by the City Council, by
at least four -fifths vote, authorizes
the publication of the title and sum-
mary of Ordinance 15 -01.
The motion for adoption of the
foregoing resolution was duly sec-
onded by Councilmember Burandt,
and upon vote being taken thereon,
the following voted in favor there-
of: Mayor Dietz, Councilmembers
Olsen, Westgaard, Burandt, and
Wagner and the following against:
none, whereupon said resolution
was declared duly passed and ad-
opted.
The following members were
present: Mayor Dietz, Councilmem-
bers Olsen, Westgaard, Burandt,
and Wagner and the following ab-
sent: none
Passed and adopted this 5th
day of January 2015.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk
Published in the
Star News
January 17, 2015
335677