7.4 SR 07-20-2020
Request for Action
To Item Number
Mayor and City Council 7.4
Agenda Section Meeting Date Prepared by
Public Hearing July 6, 2020 Tina Allard, City Clerk
Item Description Reviewed by
Ordinance Amendment for Tobacco to Match Cal Portner, City Administrator
Federal and State Law
Reviewed by
Action Requested
1. Approve, by motion, a tobacco ordinance amendment.
2. Approve, by motion, a resolution for summary publication of the tobacco ordnance amendment.
Background/Discussion
In December of 2019, the federal government made changes to tobacco regulations. Discrepancies between
state and federal law caused confusion and tied the hands of law enforcement. In May of 2020, the state
enacted law changes to align with the new federal requirements.
City Attorney Scott Baumgartner updated city ordinance to match state law. These changes updated tobacco
definitions, state compliance checks when selling tobacco products, penalties, and signage requirements.
Changes included:
Raising purchase age from 18 to 21.
Persons under 21 can’t enter a tobacco products shop.
Penalty Section changes such as:
o Removing petty misdemeanor penalty for use of false ID.
o Department of Public Safety must suspend driver’s license of a person who lends their ID
out to another.
o Increased penalties for selling, giving, or furnishing tobacco to a person under 21.
o Allows for alternative penalties for using a false ID to purchase tobacco.
Persons involved in compliance checks must be at least 17 (used to be 15)
A licensed retailer must verify a person is at least 21, but verification is not required if the purchaser
appears to be age 30 or older.
State law removed possession/use of tobacco by a minor as a crime. Our ordinance had possession and use
by a minor as a crime, but in the draft, it is removed to match state law. The city can be stricter than state
law and the language could be included if Council desires. Reasons for these changes and the penalty
changes could be:
Hold the retailer more accountable rather focusing on the minor.
Tobacco users under 21 may already be addicted based on the previous legal sales age at 18.
A non-criminal, non-monetary approach may be a better solution for minors.
The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional service, and
community engagement that encourages and inspires prosperity
There is language in city ordinance under Section 26-73 (d) that provides alternative penalties for underage
possession and use, such as tobacco-related education.
Per state law, tobacco licensees must be provided with 30-day written notice of any ordinance changes.
They’ve all been notified and are already aware of the federal and state changes. Some have already
implemented the age change.
Financial Impact
N/A
Attachments
Ordinance Redline Version
Ordinance Clean Version
Resolution for Summary Publication
N:\\Public Bodies\\Agenda Packets\\07-20-2020\\Final\\x7.4 sr Tobacco Age.docx
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Ordinance 20 - ____
An Ordinance Amending Chapter 26, Article II, Tobacco of the City of
Elk River, Minnesota, City Code
The City Council of the City of Elk River does hereby ordain as follows:
SECTION 1. That § 26-31. – Definitions, of the City of Elk River Code of Ordinances shall be
amended to read as follows:
The following words, terms and phrases, when used in this articleArticle, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
Compliance 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 articleArticle and state and federal
laws. Compliance checks shall involve the use of minors persons under the age of 21Compliance check
minors as authorized by this articleArticle. Compliance checks shall also mean the use of minors
persons under the age of 21 who attempt to purchase tobacco, tobacco products, tobacco-related
devices, nicotine, or electronic delivery 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, tobacco-related devices, nicotine, or electronic delivery devices.
Compliance check minor means any person at least 17 years of age, but under the age of 21,
used by the city to conduct compliance checks. Provided that prior written consent of a parent or
guardian shall be required if the person is under the age of 18.
Electronic delivery device means any product containing or delivering nicotine, lobelia, or any
other substance, whether natural or synthetic, intended for human consumption that can be used by
a person to simulate smoking in the delivery of nicotine or any other substance through inhalation of
aerosol or vapor from the product. Electronic delivery devices includes but is not limited to devices
manufactured, marketed, or sold as electronic cigarettes, electronic cigars, electronic pipe, vape pens,
modes, tank systems, or under any other product name or descriptor. Electronic delivery device shall
include any component part of such a product that is not tobacco as defined in this section, whether
or not marketed or sold separately. Electronic delivery device excludes drugs, devices, or combination
products, as those terms are defined in the Federal Food, Drug, and Cosmetic Act, that are authorized
for sale by the shall not include any product that has been approved or otherwise certified by the
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United States Food and Drug Administration for legal sales for use in tobacco cessation treatment, harm reduction education or for other medical purposes, and is being marketed and sold
solely for that approved purpose.
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 article shall not be considered individually packaged.
Loosies 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 business 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, tobacco-related devices, nicotine, or electronic delivery 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 means open displays of tobacco, tobacco products, tobacco-related devices, nicotine,
or electronic delivery devices in any manner where any person shall have access to the tobacco,
tobacco products, 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, tobacco-related device, nicotine, or electronic delivery device between the
customer and the licensee or employee. Self-service merchandising shall not include vending
machines.
Tobacco and tobacco product 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 any component, part, or accessory of a tobacco product
including but not limited to 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; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco; and other
kinds and forms of tobacco.means 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-related devices. Tobacco excludes any drugs, devices, or combination products, as those
terms are defined in the Federal Food, Drug, and Cosmetic Act, that are authorized for sale by the
United States Food and Drug Administration.
Tobacco products shop means a place of business that has an entrance door opening directly
to the outside, that cannot be entered at any time by persons younger than 21 years of age, and that
derives more than 90 percent of its gross revenue from the sale of tobacco, and tobacco products or tobacco-related devices,
or electronic delivery devices, and in which the sale of other products is merely incidental. “Tobacco
products shop” does not include a tobacco department or section of any individual business
establishment with any type of liquor, food, or restaurant license.
Tobacco-related device means cigarette papers or pipes for smoking any tobacco products as well as a pipe, rolling papers, or other devices
intentionally designed or intended to be used in a manner which enables the chewing, sniffing,
smoking or inhalation of aerosol or vapors or smoking of tobacco or tobacco products. Tobacco-related devises
include components of tobacco-related devices which may be marketed or sold separately.
Use means the inhaling or exhaling of aerosol or vapor from any electronic delivery device. Use shall also mean being in possession of an electronic delivery device that is turned on
or otherwise activated.
dispenses tobacco, tobacco products, tobacco-related devices, nicotine, or electronic delivery 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.
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Vending machine means any mechanical, electric or electronic or other type of device which
dispenses tobacco, tobacco products, tobacco-related devices, nicotine, or electronic delivery 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 articleArticle, of the City of Elk River Code of Ordinances shall
be amended to read as follows:
Because the city recognizes that many persons under the age of 21 years youth and young adults
persons under the age of 18 years purchase or otherwise obtain, possess, and use tobacco, tobacco
products, 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 almost no one starts smoking after age 25 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 articleArticle shall be intended to regulate the sale,
possession, and use of tobacco, tobacco products, tobacco-related devices, nicotine, or electronic
delivery devices for the purpose of enforcing existing laws, to protect minors persons under the age
of 21 years against the serious effects associated with the illegal use of tobacco, tobacco products,
tobacco-related devices, nicotine, or electronic delivery devices and to prevent young people from
starting to smoke as stated in Minn. Stats. § 144.391.
Unregulated electronic delivery devices, commonly referred to as electronic cigarettes, or e-
cigarettes, closely resemble and purposefully mimic the act of smoking by having users inhale
vaporized liquid nicotine or other substances created by heat through an electronic ignition system.
After testing a number of e-cigarettes from two leading manufacturers, the Food and Drug
Administration (FDA) determined that various samples tested contained not only nicotine but also
detectable levels of known carcinogens and toxic chemicals, including tobacco-specific nitrosamines
and diethylene glycol, a toxic chemical used in antifreeze. The FDA's testing also suggested that quality
control processes used to manufacture these products are inconsistent or non-existent. (Summary of
results: Laboratory analysis of electronic cigarettes conducted by FDA, Food and Drug Administration
(FDA), July 22, 2009; http://www.fda.gov/NewsEvents/PublicHealthFocus/ucm173146.htm)
E-cigarettes produce a vapor of undetermined and potentially harmful substances, which may
appear similar to smoke emitted by traditional tobacco products. Their use in workplaces and public
places where smoking of traditional tobacco products is prohibited creates concern and confusion and
leads to difficulties in enforcing the smoking prohibitions.
SECTION 3. That § 26-33. - Responsibility of licensee for acts of employees, of the City of Elk
River Code of Ordinances shall be amended to read as follows:.
All licensees under this articleArticle shall be responsible for the actions of their employees in
regard to the sale of tobacco, tobacco products, tobacco-related devices, nicotine, or electronic
delivery devices on the licensed premises, and the sale of such an item by an employee shall be
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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 articleArticle, state
or federal law, or other applicable laws or regulations.
SECTION 4. That § Sec. 26-34. - Inspection of licensed premises, of the City of Elk River Code of
Ordinances shall be amended to read as follows:
All licensed premises shall be open to inspection by the city police department or other authorized
city official during regular business hours.
SECTION 5. That § Sec. 26-35. - Compliance checks, of the City of Elk River Code of Ordinances
shall be amended to read as follows:
(a) Authorized. 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, nicotine, or electronic
delivery devices are sold to test compliance with Minn. Stats. §§ 609.685 and 609.6855.
Commented \[PHLC1\]: Note: If the minimum legal sales
age is raised to 21 compliance checks are performed to test
(b) Use of underage personscompliance check minors to conduct checks.
compliance with the requirements of this article as well.
(1) The city shall conduct compliance checks by engaging compliance check minors , with
persons the written consent of their parents or guardians, minors over the age of 15 years
but less than 218 years, to enter the licensed premises to attempt to purchase tobacco,
tobacco products, tobacco-related devices, nicotine, or electronic delivery devices.
(2) Prior written consent is required for any minor who participates in a compliance check.
Commented \[PHLC2\]: Prior parental/guardian consent is
required by state law, but only required for minors. Not
(32) Minors PersonsCompliance check minors used for the purpose of compliance checks shall
necessary for underage adults.
be supervised by designated law enforcement officers or other designated city personnel.
Commented \[SB3R2\]: The proposed definition of
“Compliance Check Minor” addresses parental permission.
(3) PersonsMinors used for compliance checksCompliance check minors shall not be guilty of
the unlawful purchase or attempted purchase or the unlawful possession of tobacco, tobacco
products, 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.
(54) No minor person used in compliance checkscompliance check minor shall attempt to use a
false identification misrepresenting their the minor's age, and all personsminorscompliance
check minors lawfully engaged in a compliance check shall answer all questions about their
minor's age if asked by the licensee or his employee, and shall produce any identification, if
any exists, for which he or she 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 6. That § Sec. 26-36. - Exceptions and defenses, of the City of Elk River Code of
Ordinances shall be amended to read as follows:
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(a) Nothing in this articleArticle shall prevent the provision of tobacco, tobacco products, tobacco-
related devices, nicotine, or electronic delivery devices to a minor person under the age of 21
years as part of a lawfully recognized religious, spiritual, or cultural ceremony.
(a)(b) It shall be an affirmative defense to a violation of this articleArticle for a person to have relied
in good faith upon proof of age as described in Minn. Stats. § 340A.503, subd. 6.
(c) The penalties in section 26-73 do not apply to a person under the age of 18 21 years who
purchases or attempts to purchase tobacco, tobacco-related devices or electronic delivery devices
while under the direct supervision of a responsible adult for training, education, research, or
enforcement purposes.
(d) 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 persons under the age of 218 years 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 approved purpose.
SECTION 7. That § Sec. 26-37. - Violations relating to underage persons, of the City of Elk River
Code of Ordinances shall be amended to read as follows:
(a) Illegal sales. It shall be a violation of this articleArticle for any person to sell, or offer to sell,
give, or otherwise furnish any tobacco, tobacco product, tobacco-related device, nicotine, or
electronic delivery devices to any person under the age of 218 years.
(1) Age verification. Licensees must verify by means of government-issued photographic
Commented \[PHLC4\]: Note: Federal law requires age
verification (ID checks) for everyone under 27. When the
identification that the purchaser is at least 21 years of age. Verification is not required for a person
legal age is raised to 21, the verification age is often
over the age of 30. That the person appeared to be 30 years of age or older does not constitute a
increased at the same time.
defense to a violation of this subsection.
Commented \[SB5R4\]: I inserted the required language
(2) Signage. Notice of the legal sales age and age verification requirement must be posted at each
pursuant to Minn. Stat. Sec. 461.22, Subd. 2.
location where licensed products are offered for sale. The required signage, which will be
provided to the licensee by the city, must be posted in a manner that is clearly visible to anyone
who is or is considering making a purchase.
Commented \[AT6\]: Is this required? PHLC added.
Commented \[SB7R6\]: Signage is required pursuant to
(b) Illegal possession. It shall be a violation of this article for any minor to have in his possession
Minn. Stat. Sec. 461.22, Subd. 1 I moved this provision and
any tobacco, tobacco product, tobacco-related device, nicotine, or electronic delivery devices.
the Age Verification provision under Section 26-67 below as
This subsection shall not apply to minors lawfully involved in a compliance check.
it appeared to be a more relevant location.
(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, tobacco-related device, nicotine, or electronic delivery devices.
Commented \[AT8\]: Should this be kept in now that state
law is consistent versus each city having adopted.
(cbd) Illegal procurement. It shall be a violation of this articleArticle for any minor to purchase or
Commented \[SB9R8\]: Despite the fact that State Law
attempt to purchase or otherwise obtain any tobacco, tobacco product, tobacco-related device,
seems to have removed possession of tobacco by a minor as
nicotine, or electronic delivery devices and it shall be a violation of this article for any person to
a crime, cities still may be more restrictive and could include
purchase or otherwise obtain tobacco, tobacco-related devices, nicotine, or electronic delivery
such a provision in their Ordinances if they wish. I believe
devices such items on behalf of a person under the age of 21 yearsn underage person minor. It
this is a council decision as to whether or not possession of
tobacco by a minor should be illegal under the City Code.
shall further be a violation for any person to coerce or attempt to coerce a person under the age
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of 21 years minor to illegally purchase or otherwise obtain or use any tobacco, tobacco product,
tobacco-related device, nicotine, or electronic delivery devices. This subsection shall not apply to
minors lawfully involved in a compliance check.
(dce) Use of false identification. It shall be a violation of this articleArticle for any minor person
under the age of 21 years to purchase or attempt to purchase tobacco, tobacco-related devices,
or electronic delivery devices using a driver’s license, permit, Minnesota identification card, or
any other type of false identification to misrepresent the person’s ageattempt 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 8. That § Sec. 26-38. - Vending machines, of the City of Elk River Code of Ordinances
shall be amended to read as follows:
It shall be unlawful for any person to sell tobacco, tobacco products, or tobacco-related devices,
nicotine, or electronic delivery devices by the means of a vending machine, except in a licensed tobacco
products shop.
SECTION 9. That § Sec. 26-39. - Self-service sales, of the City of Elk River Code of Ordinances
shall be amended to read as follows:
(a) Single packages. It shall be unlawful for a licensee under this articleArticle to allow the sale of
single packages of cigarettes, tobacco, tobacco-related devices, nicotine, or electronic delivery
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 electronic delivery
device between the licensee or his clerk and the customer.
(2) Any retailer selling single packages of the items 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 or smokeless tobacco 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 title 21, part 897.16(c).
SECTION 10. That § Sec. 26-40. - Tobacco products shop, of the City of Elk River Code of
Ordinances shall be amended to read as follows:
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(a) Tobacco products shops as defined by this articleArticle cannot be entered at any time by persons
younger than 218 years of age.
(b) The self-service restrictions prescribed in section 26-39 shall not apply to licensed tobacco
products shops.
(c) No license may be issued for a tobacco products shop where:
(1) The proposed location is ineligible for a license under city ordinance or state law.
(2) The proposed location is in a zoning district where the business is not allowed pursuant to
chapter 30 of this Code. This restriction shall not apply to tobacco product shops which
were in conformance with chapter 30 on July 21, 2008.
(3) The proposed location is located within 500 feet of a school or park property.
a. The distance limitations shall be measured from property line to property line at the
nearest point or from property line to the nearest point of the leased premises if the
tobacco products shop is located in a multi-tenant facility.
b. This restriction shall not apply to tobacco product shops which were properly licensed
pursuant to chapter 26 of this Code and in conformance with chapter 30 of this Code
on July 21, 2008.
(4) The proposed location is in a multi-tenant facility and does not have its own separate
ventilation system, unless the licensee agrees, and the license provides, that there shall be no
smoking allowed in the tobacco products shop. Violation of this condition in a license shall
be grounds for revocation of the license.
SECTION 11. That § Sec. 26-66. - Term and renewal, of the City of Elk River Code of Ordinances
shall be amended to read as follows:
All licenses issued under this division shall expire on December 31 of the year issued. Licenses
must be renewed annually.
Application for renewal shall be made at least 60 days before the expiration and shall be in the
form and manner required for the original license, and subject to the same criteria.
Upon the timely submission of an application for renewal, the office of the city clerk shall renew
each license meeting the requirements for the issuance of the original license no later than 30 days
before the expiration. Late applications shall be acted upon within 30 days of the application date.
SECTION 12. That § 26-67. – Required, of the City of Elk River Code of Ordinances shall be
amended to read as follows:
(a) License required. No person shall sell or offer to sell any tobacco, tobacco products, tobacco-
Commented \[PHLC10\]: Note: Federal law requires age
related devices nicotine, or electronic delivery devices without having a current license to do so
verification (ID checks) for everyone under 27. When the
as issued by the office of the city clerk.
legal age is raised to 21, the verification age is often
increased at the same time.
(b) Age verification. At each location where tobacco, tobacco-related devices, electronic delivery
Commented \[SB11R10\]: I inserted the required language
devices, or nicotine or lobelia delivery products are sold, the licensee shall verify, by means of
pursuant to Minn. Stat. Sec. 461.22, Subd. 2.
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government-issued photographic identification containing the bearer's date of birth, that the
purchaser or person attempting to make the purchase is at least 21 years of age. Verification is
not required if the purchaser or person attempting to make the purchase is 30 years of age or
older. It shall not constitute a defense to a violation of this subdivision that the person appeared
to be 30 years of age or older.
(c) Signage. At each location where tobacco, tobacco-related devices, electronic delivery devices, or
nicotine or lobelia delivery products are sold, the licensee shall display a sign in plain view to
provide public notice that selling any of these products to any person under the age of 21 is illegal
and subject to penalties. The notice shall be placed in a conspicuous location in the licensed
establishment and shall be readily visible to any person who is purchasing or attempting to
purchase these products. The sign shall provide notice that all persons responsible for selling
these products must verify, by means of photographic identification containing the bearer's date
of birth, the age of any person under 30 years of age.
SECTION 13. That § Sec. 26-68. - Application, of the City of Elk River Code of Ordinances shall
be amended to read as follows:
The application for the license provided for in this division shall be made by filing the annual
license fee and completing an application form as provided by the office of the city clerk. For new
applications, the police department shall conduct the required background investigation before
consideration of licensure by the office of the city clerk. In addition to such information as the city
clerk's office may require, the application shall include:
(1) Whether the applicant is a natural person, corporation, partnership, or other form of
organization;
(2) The name of the applicant and all persons with an ownership interest in the business;
(3) The permanent home address and the home telephone number of the applicant and all
persons associated in the business;
(4) The address of the premises to be licensed;
(5) Whether all real estate taxes, assessments, or other financial claims of the city, state, or federal
government for the business and premises to be licensed have been paid and, if not paid, the
years for which delinquent;
(6) Whether the applicant has ever used or been known by a name other than his/her true name,
and if so, what was the name, or names, and information concerning dates and places where
used;
(7) A statement as to whether or not the applicant, the person managing the business, or all
persons associated in the business have been convicted of any crime, misdemeanor or
violation of any city, state, or federal law, involving activities licensed under this articleArticle,
the nature of the offense and the punishment or penalty assessed therefor; and
(8) Other localities where the applicant has had or currently has a tobacco license.
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SECTION 14. That § Sec. 26-69. - License eligibility, of the City of Elk River Code of Ordinances
shall be amended to read as follows:
(a) All license applications under this division shall be made to the office of 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.
(b) 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) A tobacco license shall not be issued upon any of the following:
(1) The applicant is under the age of 218 years.
Commented \[PHLC12\]: Note: If the legal sales age is
raised to 21, it might not make sense to issue licenses to
(2) The applicant has been convicted within the past five years of any violation of a federal, state
someone too younger to purchase the licensed product.
or local law, ordinance provision, or other regulation relating to tobacco, tobacco products,
tobacco-related devices, nicotine, or electronic delivery devices.
(3) The applicant has had a license to sell tobacco, tobacco products, tobacco-related devices
nicotine, or electronic delivery devices, denied, 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 to impose reasonable conditions/restrictions on the license,
taking into consideration one or more of the facts or circumstances, a license may have reasonable
conditions/restrictions imposed 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, or
any conditions/restrictions imposed on a license, shall be grounds for denying, revoking or
suspending a license granted under this division. The city shall have the discretion to consider, in
granting, denying, revoking, suspending, or renewing a license, any reasonable facts or
circumstances relating to public health, safety, and welfare.
(f) If a license is denied by the office of the city clerk, the city clerk shall notify the applicant of the
determination in writing, including the facts and specific section or sections of this articleArticle
upon which this determination was made, and of their right to a hearing before the city council.
(g) Except as otherwise provided in this chapter 26, article Article II, tobacco licenses shall be
governed by the requirements and procedures set forth in chapter 38, articleArticle II of this
Code, including the notice and hearing provisions set forth therein.
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SECTION 15. That § Sec. 26-71. - No transfers, of the City of Elk River Code of Ordinances shall
be amended to read 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.
(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, tobacco-related devices, nicotine,
or electronic delivery devices, 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 articleArticle.
SECTION 16. That § Sec. 26-73. – Penalty, of the City of Elk River Code of Ordinances shall be
amended to read as follows:
(a) Administrative penalties for sales and furnishing; Licensees. Any licensee found to have
violated this articleArticle, or whose employee has violated this articleArticle, shall be subject to
the Administrative Penalties set forth in Minn. Stat. §461.12, Subd. 3, as amended from time to
timecharged 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.
(b) Administrative Penalty for sales and furnishing; Individualsto sell. Whoever sells, gives, or
otherwise furnishes tobacco, tobacco products, tobacco-related devices, electronic delivery
devices, or nicotine or lobelia delivery productsa product containing or delivering nicotine or
lobelia intended for human consumption, or any part of such product that is not tobacco, or an
electronic delivery device as defined by section 26-31, to a person under the age of 2118 years is
guilty of a misdemeanormay be subject to the Administrative Penalties set forth in Minn. Stat.
§461.12, Subd. 4, as amended from time to time.
(1) Whoever sells tobacco, tobacco products, tobacco-related devices, a product containing or
delivering nicotine or lobelia intended for human consumption, or any part of such product that
is not tobacco, or an electronic delivery device as defined by section 26-31, to a person under the
Commented \[PHLC13\]: State law provides that the
age of 18 years is guilty of a misdemeanor for the first violation. Whoever violates this article a
second violation with a person under 18 is a gross
subsequent time within five years of a previous conviction under this article is guilty of a gross
misdemeanor. If a city or county raises the age higher, sales
misdemeanor subject to the exceptions and defenses set forth in section 26-36.
to persons 18-20 can only be a misdemeanor – the highest
penalty for age-related violations.
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(c) Other offenses.
(1) Whoever furnishes tobacco, tobacco-related devices, nicotine, or electronic delivery devices,
to a person under the age of 218 years, is guilty of a misdemeanor for the first violation.
Whoever violates this article a subsequent time within five years of a previous conviction
under this article is guilty of a gross misdemeanor.
Commented \[PHLC14\]: State law provides that the
second violation with a person under 18 is a gross
(2) A person under the age of 18 years who purchases or attempts to purchase tobacco, tobacco-
misdemeanor. If a city or county raises the age higher, sales
related devices, a product containing or delivering nicotine or lobelia intended for human
to persons 18-20 can only be a misdemeanor – the highest
penalty for age-related violations.
consumption, 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 card, or any type of false identification to misrepresent the person's age, is
guilty of a misdemeanor.
(21(3) Use where prohibited. It is a violation of this section for any person to use an electronic
delivery device in an area where prohibited by this section, or to use an electronic delivery
device in an area where prohibited by a private policy established by the proprietor or other
person in charge of the area.
(324) Proprietors. It is a violation of this section for the proprietor, person, or entity that
owns, leases, manages, operates, or otherwise controls the use of an area in which the use of
an electronic delivery device is prohibited under this section to knowingly fail to comply with
or enforce the provisions of this section.
(d) Alternative penalties for use of false identification; persons under age 21Underage
PersonsPetty misdemeanor. Persons under 21 years of age Minors who use or are found in
unlawful possession of, or who unlawfully purchase or attempt to use false identification to
purchase, tobacco, tobacco-related products or tobacco-related devices may be subject to
tobacco-related education classes, shall be charged an administrative fee of $75.00 per offense or
a minimum fee of $25.00 and satisfactory completion of a diversion programs, community
service, or other penalty that acceptable to the city believes will be appropriate or effective. Except
Commented \[PHLC15\]:
Note: Alternative consequences for underage persons to
as otherwise provided in subdivision (c), a person under the age of 18 years, who possesses,
use false identification to attempt to purchase tobacco
smokes, chews, or otherwise ingests, purchases, or attempts to purchase tobacco, tobacco-related
products.
devices, nicotine, or electronic delivery devices, is guilty of a petty misdemeanor.
(e) Notice. No administrative penalty or license suspension or revocation 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, articleArticle II.
(f) Prosecution of violation as misdemeanor. Unless otherwise noted, any person violating any
provision of this Article, or other similar state 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. Nothing in this section Article shall prohibit the city from seeking
misdemeanor prosecution, administrative penalties, or both 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, and does not affect the
city’s right to suspend or revoke the license of a licensee as the city council deems appropriate.
(g) 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
Last Updated January 2019
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Underlines to be added
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.
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 20th day of July, 2020.
______________________________
John J. Dietz, Mayor
ATTEST:
_______________________________
Tina Allard, City Clerk
Last Updated January 2019
ARTICLE II. - TOBACCO
DIVISION 1. - GENERALLY
Sec. 26-31. - Definitions.
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:
Compliance checks means the system the city uses to investigate and ensure that those authorized
to sell tobacco, tobacco-related devices, nicotine, or electronic delivery devices are following and complying
with the requirements of this Article and state and federal laws. Compliance checks shall involve the use of
Compliance check minors as authorized by this Article. 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-related devices, nicotine, or electronic delivery devices.
Compliance check minor means any person at least 17 years of age, but under the age of 21, used
by the city to conduct compliance checks. Provided that prior written consent of a parent or guardian shall
be required if the person is under the age of 18.
Electronic delivery device means any product containing or delivering nicotine, lobelia, or any other
substance, whether natural or synthetic, intended for human consumption through inhalation of aerosol or
vapor from the product. Electronic delivery devices includes but is not limited to devices manufactured,
marketed, or sold as electronic cigarettes, electronic cigars, electronic pipe, vape pens, modes, tank
systems, or under any other product name or descriptor. Electronic delivery device shall include any
component part of such a product that is not tobacco as defined in this section, whether or not marketed or
sold separately. Electronic delivery device excludes drugs, devices, or combination products, as those
terms are defined in the Federal Food, Drug, and Cosmetic Act, that are authorized for sale by the United
States Food and Drug Administration.
Moveable place of business 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.
Sale means any transfer of goods for money, trade, barter, or other consideration.
Self-service merchandising means open displays of tobacco, tobacco-related devices, nicotine, or
electronic delivery devices in any manner where any person shall have access to the tobacco, 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-related device, nicotine, or electronic delivery device between the customer and the
licensee or employee. Self-service merchandising shall not include vending machines.
Tobacco 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 any component, part, or accessory of a tobacco product including but not
limited to 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;
shorts; refuse scraps, clippings, cuttings and sweepings of tobacco; and other kinds and forms of tobacco.
Tobacco excludes any drugs, devices, or combination products, as those terms are defined in the Federal
Food, Drug, and Cosmetic Act, that are authorized for sale by the United States Food and Drug
Administration.
Tobacco products shop means a place of business that has an entrance door opening directly to the
outside, that cannot be entered at any time by persons younger than 21 years of age, and that derives more
than 90 percent of its gross revenue from the sale of tobacco, tobacco-related devices, or electronic delivery
devices, and in which the sale of other products is merely incidental. “Tobacco products shop” does not
Page 1
include a tobacco department or section of any individual business establishment with any type of liquor,
food, or restaurant license.
Tobacco-related device means cigarette papers or pipes for smoking or other devices intentionally
designed or intended to be used in a manner which enables the chewing, sniffing, smoking or inhalation of
aerosol or vapors of tobacco or tobacco products. Tobacco-related devises include components of tobacco-
related devices which may be marketed or sold separately.
Vending machine means any mechanical, electric or electronic or other type of device which
dispenses tobacco, tobacco-related devices, nicotine, or electronic delivery 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.
Sec. 26-32. - Purpose of Article.
Because the city recognizes that many persons under the age of 21 years purchase or otherwise
obtain, possess, and use tobacco, 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 almost no one starts smoking after age 25, 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-related devices, nicotine, or electronic delivery devices for the purpose of enforcing
existing laws, to protect persons under the age of 21 years against the serious effects associated with the
illegal use of tobacco, tobacco-related devices, nicotine, or electronic delivery devices and to prevent young
people from starting to smoke as stated in Minn. Stat. § 144.391.
Unregulated electronic delivery devices, commonly referred to as electronic cigarettes, or e-cigarettes,
closely resemble and purposefully mimic the act of smoking by having users inhale vaporized liquid nicotine
or other substances created by heat through an electronic ignition system. After testing a number of e-
cigarettes from two leading manufacturers, the Food and Drug Administration (FDA) determined that
various samples tested contained not only nicotine but also detectable levels of known carcinogens and
toxic chemicals, including tobacco-specific nitrosamines and diethylene glycol, a toxic chemical used in
antifreeze. The FDA's testing also suggested that quality control processes used to manufacture these
products are inconsistent or non-existent. (Summary of results: Laboratory analysis of electronic cigarettes
conducted by FDA, Food and Drug Administration (FDA), July 22, 2009;
http://www.fda.gov/NewsEvents/PublicHealthFocus/ucm173146.htm)
E-cigarettes produce a vapor of undetermined and potentially harmful substances, which may appear
similar to smoke emitted by traditional tobacco products. Their use in workplaces and public places where
smoking of traditional tobacco products is prohibited creates concern and confusion and leads to difficulties
in enforcing the smoking prohibitions.
Sec. 26-33. - Responsibility of licensee for acts of employees.
All licensees under this Article shall be responsible for the actions of their employees in regard to the
sale of tobacco, 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 laws or regulations.
Sec. 26-34. - Inspection of licensed premises.
All licensed premises shall be open to inspection by the city police department or other authorized city
official during regular business hours.
Page 2
Sec. 26-35. - Compliance checks.
(a) Authorized. 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, nicotine, or electronic
delivery devices are sold.
(b) Use of compliance check minors to conduct checks.
(1) The city shall conduct compliance checks by engaging compliance check minors to enter the
licensed premises to attempt to purchase tobacco, tobacco-related devices, nicotine, or electronic
delivery devices.
(2) Compliance check minors shall be supervised by designated law enforcement officers or other
designated city personnel.
(3) Compliance check minors shall not be guilty of the unlawful purchase or attempted purchase or
the unlawful possession of tobacco, 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 compliance check minor shall attempt to use a false identification misrepresenting their age,
and all compliance check minors lawfully engaged in a compliance check shall answer all
questions about their age if asked by the licensee or his employee, and shall produce any
identification, if any exists, for which he or she 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.
Sec. 26-36. - Exceptions and defenses.
(a) Nothing in this Article shall prevent the provision of tobacco, tobacco-related devices, nicotine, or
electronic delivery devices to a person under the age of 21 years as part of a lawfully recognized
religious, spiritual, or cultural ceremony.
(b) 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 in Minn. Stats. § 340A.503, subd. 6.
(c) The penalties in section 26-73 do not apply to a person under the age of 21 years who purchases or
attempts to purchase tobacco, tobacco-related devices or electronic delivery devices while under the
direct supervision of a responsible adult for training, education, research, or enforcement purposes.
(d) 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 persons under the age of 21 years 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 approved purpose.
Sec. 26-37. - Violations relating to underage persons.
(a) Illegal sales. It shall be a violation of this Article for any person to sell, offer to sell, give, or otherwise
furnish any tobacco, tobacco-related device, nicotine, or electronic delivery device to any person under
the age of 21 years.
(b) Illegal procurement. It shall be a violation of this Article for any person to purchase or otherwise
obtain tobacco, tobacco-related devices, nicotine, or electronic delivery devices on behalf of a person
under the age of 21 years. It shall further be a violation for any person to coerce or attempt to coerce
Page 3
a person under the age of 21 years to illegally purchase or otherwise obtain or use any tobacco,
tobacco product, tobacco-related device, nicotine, or electronic delivery devices.
(c) Use of false identification. It shall be a violation of this Article for any person under the age of 21
years to purchase or attempt to purchase tobacco, tobacco-related devices, or electronic delivery
devices using a driver’s license, permit, Minnesota identification card, or any other type of false
identification to misrepresent the person’s age.
Sec. 26-38. - Vending machines.
It shall be unlawful for any person to sell tobacco, tobacco-related devices, nicotine, or electronic
delivery devices by the means of a vending machine, except in a licensed tobacco products shop.
Sec. 26-39. - Self-service sales.
(a) Single packages. It shall be unlawful for a licensee under this Article to allow the sale of single
packages of cigarettes, tobacco, tobacco-related devices, nicotine, or electronic delivery 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 electronic delivery device between
the licensee or his clerk and the customer.
(b) Cartons and multipack units.
(1) Cartons and other multipack units of packages of cigarettes or smokeless tobacco 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 title 21, part 897.16(c).
Sec. 26-40. - Tobacco products shop.
(a) Tobacco products shops as defined by this Article cannot be entered at any time by persons younger
than 21 years of age.
(b) The self-service restrictions prescribed in section 26-39 shall not apply to licensed tobacco products
shops.
(c) No license may be issued for a tobacco products shop where:
(1) The proposed location is ineligible for a license under city ordinance or state law.
(2) The proposed location is in a zoning district where the business is not allowed pursuant to chapter
30 of this Code. This restriction shall not apply to tobacco product shops which were in
conformance with chapter 30 on July 21, 2008.
(3) The proposed location is located within 500 feet of a school or park property.
a. The distance limitations shall be measured from property line to property line at the nearest
point or from property line to the nearest point of the leased premises if the tobacco products
shop is located in a multi-tenant facility.
b. This restriction shall not apply to tobacco product shops which were properly licensed
pursuant to chapter 26 of this Code and in conformance with chapter 30 of this Code on July
21, 2008.
Page 4
(4) The proposed location is in a multi-tenant facility and does not have its own separate ventilation
system, unless the licensee agrees, and the license provides, that there shall be no smoking
allowed in the tobacco products shop. Violation of this condition in a license shall be grounds for
revocation of the license.
Sec. 26-41. - Sale of electronic delivery device; packaging.
(a) For purposes of this section, "child-resistant packaging" is defined as set forth in Code of Federal
Regulations, title 16, section 1700.15(b)(1), as in effect on January 1, 2015, when tested in accordance
with the method described in Code of Federal Regulations, title 16, section 1700.20, as in effect on
January 1, 2015.
(b) The sale of any liquid, whether or not such liquid contains nicotine, that is intended for human
consumption and use in an electronic delivery device, as defined in section 26-31, that is not contained
in packaging that is child-resistant, is prohibited. All licensees under this chapter must ensure that any
liquid intended for human consumption and use in an electronic delivery device is sold in child-resistant
packaging.
(c) A licensee that fails to comply with this section is subject to administrative penalties under section 26-
73.
Sec. 26-42. - Prohibition.
The use of any electronic delivery device is prohibited anywhere smoking is prohibited by the
Minnesota Clean Indoor Act, as it may be amended from time to time.
Sec. 26-43. - Other applicable laws.
This section is intended to complement the Minnesota Clean Indoor Air Act, Minn. Stats. §§ 144.411
to 144.417, as it may be amended from time to time. Nothing in this section authorizes smoking or the use
of an electronic delivery device in any location that is regulated by other applicable laws or regulations.
Secs. 26-44—26-64. - Reserved.
DIVISION 2. - LICENSE
Sec. 26-65. - Fee.
No license shall be issued under this division until the appropriate license fee shall be paid in full. Fees
for a license are set by ordinance on an annual basis in the city's fee schedule. 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.
Sec. 26-66. - Term and renewal.
All licenses issued under this division shall expire on December 31 of the year issued. Licenses must
be renewed annually.
Application for renewal shall be made at least 60 days before the expiration and shall be in the form
and manner required for the original license, and subject to the same criteria.
Page 5
Upon the timely submission of an application for renewal, the office of the city clerk shall renew each
license meeting the requirements for the issuance of the original license no later than 30 days before the
expiration. Late applications shall be acted upon within 30 days of the application date.
Sec. 26-67. - Required.
(a) License required. No person shall sell or offer to sell any tobacco, tobacco-related devices nicotine,
or electronic delivery devices without having a current license to do so as issued by the office of the
city clerk.
(b) Age verification. At each location where tobacco, tobacco-related devices, electronic delivery devices,
or nicotine or lobelia delivery products are sold, the licensee shall verify, by means of government-
issued photographic identification containing the bearer's date of birth, that the purchaser or person
attempting to make the purchase is at least 21 years of age. Verification is not required if the purchaser
or person attempting to make the purchase is 30 years of age or older. It shall not constitute a defense
to a violation of this subdivision that the person appeared to be 30 years of age or older.
(c) Signage. At each location where tobacco, tobacco-related devices, electronic delivery devices, or
nicotine or lobelia delivery products are sold, the licensee shall display a sign in plain view to provide
public notice that selling any of these products to any person under the age of 21 is illegal and subject
to penalties. The notice shall be placed in a conspicuous location in the licensed establishment and
shall be readily visible to any person who is purchasing or attempting to purchase these products. The
sign shall provide notice that all persons responsible for selling these products must verify, by means
of photographic identification containing the bearer's date of birth, the age of any person under 30
years of age.
Sec. 26-68. - Application.
The application for the license provided for in this division shall be made by filing the annual license
fee and completing an application form as provided by the office of the city clerk. For new applications, the
police department shall conduct the required background investigation before consideration of licensure by
the office of the city clerk. In addition to such information as the city clerk's office may require, the application
shall include:
(1) Whether the applicant is a natural person, corporation, partnership, or other form of organization;
(2) The name of the applicant and all persons with an ownership interest in the business;
(3) The permanent home address and the home telephone number of the applicant and all persons
associated in the business;
(4) The address of the premises to be licensed;
(5) Whether all real estate taxes, assessments, or other financial claims of the city, state, or federal
government for the business and premises to be licensed have been paid and, if not paid, the
years for which delinquent;
(6) Whether the applicant has ever used or been known by a name other than his/her true name, and
if so, what was the name, or names, and information concerning dates and places where used;
(7) A statement as to whether or not the applicant, the person managing the business, or all persons
associated in the business have been convicted of any crime or violation of any city, state, or
federal law, involving activities licensed under this Article, the nature of the offense and the
punishment or penalty assessed therefor; and
(8) Other localities where the applicant has had or currently has a tobacco license.
Page 6
Sec. 26-69. - License eligibility.
(a) All license applications under this division shall be made to the office of 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.
(b) 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) A tobacco license shall not be issued upon any of the following:
(1) The applicant is under the age of 21 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-related devices,
nicotine, or electronic delivery devices.
(3) The applicant has had a license to sell tobacco, tobacco-related devices nicotine, or electronic
delivery devices, denied, 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 to impose reasonable conditions/restrictions on the license, taking
into consideration one or more of the facts or circumstances, a license may have reasonable
conditions/restrictions imposed 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, or any
conditions/restrictions imposed on a license, shall be grounds for denying, revoking or suspending a
license granted under this division. The city shall have the discretion to consider, in granting, denying,
revoking, suspending, or renewing a license, any reasonable facts or circumstances relating to public
health, safety, and welfare.
(f) If a license is denied by the office of the city clerk, the city clerk shall notify the applicant of the
determination in writing, including the facts and specific section or sections of this Article upon which
this determination was made, and of their right to a hearing before the city council.
(g) Except as otherwise provided in this chapter 26, Article II, tobacco licenses shall be governed by the
requirements and procedures set forth in chapter 38, Article II of this Code, including the notice and
hearing provisions set forth therein.
Sec. 26-70. - License not to be issued for moveable place of business.
No license shall be issued under this division to a moveable place of business. Only fixed location
businesses shall be eligible to be licensed under this division.
Page 7
Sec. 26-71. - No transfers.
(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.
(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-related devices, nicotine, or electronic delivery
devices, 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.
Sec. 26-72. - Posting.
All licenses issued under this division shall be posted and displayed in plain view of the general public
on the licensed premises.
Sec. 26-73. - Penalty.
(a) Administrative penalties for sales and furnishing; Licensees. Any licensee found to have violated
this Article, or whose employee has violated this Article, shall be subject to the Administrative Penalties
set forth in Minn. Stat. §461.12, Subd. 3, as amended from time to time.
(b) Administrative Penalty for sales and furnishing; Individuals. Whoever sells, gives, or otherwise
furnishes tobacco, tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery
products, to a person under the age of 21 years may be subject to the Administrative Penalties set
forth in Minn. Stat. §461.12, Subd. 4, as amended from time to time.
(c) Other offenses.
(1) Use where prohibited. It is a violation of this section for any person to use an electronic delivery
device in an area where prohibited by this section, or to use an electronic delivery device in an
area where prohibited by a private policy established by the proprietor or other person in charge
of the area.
(2) Proprietors. It is a violation of this section for the proprietor, person, or entity that owns, leases,
manages, operates, or otherwise controls the use of an area in which the use of an electronic
delivery device is prohibited under this section to knowingly fail to comply with or enforce the
provisions of this section.
(d) Alternative penalties for use of false identification; persons under age 21. Persons under 21
years of age who use or attempt to use false identification to purchase tobacco, tobacco-related
products or tobacco-related devices may be subject to tobacco-related education classes, diversion
programs, community service, or other penalty that the city believes will be appropriate or effective.
(e) Notice. No administrative penalty or license suspension or revocation 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 II.
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(f) Prosecution of violation as misdemeanor. Unless otherwise noted, any person violating any
provision of this Article, or other similar state 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. Nothing in this Article shall prohibit the city from seeking misdemeanor
prosecution, administrative penalties, or both., and does not affect the city’s right to suspend or revoke
the license of a licensee as the city council deems appropriate.
Secs. 26-74—26-90. - Reserved.
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Councilmember _______________ introduced the following resolution and moved its
adoption:
Resolution 20-____
A Resolution of the City of Elk River Approving Notice of Summary
Publication of Ordinance #20-__ An Ordinance Amendment for Tobacco
WHEREAS, on July 20, 2020, the Elk River City Council adopted Ordinance 20-___
amending Chapter 26, Article II, of the Elk River Code of Ordinances; and
WHEREAS, federal and state laws for tobacco recently changed and the city’s ordinance
was inconsistent with these regulations; and
WHEREAS, Ordinance 20-___ incorporates these federal and state law changes as it
relates to tobacco definitions, compliance checks, age to purchase tobacco products raised
from 18 to 21, updated penalty requirements, and signage requirements; and
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 regular
business hours; and
NOW, THEREFORE, BE IT RESOLVED by the City Council, by at least four-fifths
vote, authorizes the publication of the title and summary of Ordinance 20-___.
The motion for adoption of the foregoing resolution was duly seconded by Councilmember
______________, and upon vote being taken thereon, the following voted in favor thereof:
and the following against: , whereupon said
resolution was declared duly passed and adopted.
The following members were present:
and the following absent:
th
Passed and adopted this 20 day of July 2020.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk