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5.3. SR 04-14-2008Item 5.3. MEMORANDUM TO: City Council FROM: Tina Allard, City Clerk DATE: April 14, 2008 SUBJECT: Review of Tobacco, Solicitor's, and Sexually-Oriented Businesses Licensing Ordinances Tobacco Ordinance The city currently has a moratorium in effect fox licensing tobacco product shops in order to consider amendments to the ordinance. Council requested review of the following: ^ The Council requested the city attorney address drug paraphernalia. ^ Proxunity to schools. ^ More stringent measures for second-hand smoke in tobacco product shops. Transient. Peddler's. and Solicitor's Ordinance This ordinance has been reorganized so it flows better. The restrictions put on APX Alarm have been added to the ordinance. The Council requested a review of this ordinance in order to consider more restrictions on solicitors. Sexually Oriented Businesses Licensing Ordinance Hirtory Prior to adopting ordinances, cities must engage in legislative fact-fmding that establishes adult uses as having undesirable secondary effects. The Planning Commission and City Council completed this fact-finding process in 1992. Per the city zoning ordinance, these types of businesses axe allowed as a conditional use in the I-1 (Light Industrial) and I-2 (Medium Industrial) zoning districts. (See attached map) The purpose of the licensing ordinance is to monitor the use of negative secondary effects and ensure compliance with other criminal laws. S:\Administration\Council RCA\Ordin Tobacco Solicitor Sex 13usinesses.doc -1- ARTICLE II. TOBACCO* DIVISION I. 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 products, and tobacco-related devices axe 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, ox tobacco-related devices fox 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, ox local laws and regulations relating to tobacco, tobacco products, and tobacco-related devices. Individually packaged means the practice of selling any tobacco or tobacco product wrapped individually fox sale. Individually wrapped tobacco and tobacco products shall include, but not be limited to, single cigarette packs, single bags ox cans of loose tobacco in any form, and single cans ox other packaging of snuff or chewing tobacco. Cartons ox 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 ox indi~ridually 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 truck, van, automobile, ox other type of vehicle ox transportable shelter and not a fixed address storefront ox other permanent type of structure authorized fox sales transactions. Retail establishment means any place of business where tobacco, tobacco products, ox tobacco-related devices are available for sale to the general public. Retail establishments shall include, but not be limited to, grocery stores, convenience stores, and restaurants. Sale means any transfer of goods fox money, trade, barter, or other consideration. Self-service merchandising means open displays of tobacco, tobacco products, or tobacco-related devices in any manner where any person shall have access to the tobacco, tobacco products, ox tobacco-related devices without the assistance ox intervention of the licensee or the licensee's employee. The assistance ox intervention shall entail the actual physical exchange of the tobacco, -2- tobacco product, or tobacco-related device between the customer and the licensee ox employee. Self- service merchandising shall not include vending machines. Tobacco and tobacco product mean any substance of item containing tobacco leaf, including but not limited to cigarettes; ca rs; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready-tubbed, 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 fox smoking, chewing, sniffing, smoking in a pipe ox other tobacco-related devices. Tobacco Products Shop A place ox business that derives more than 90 percent of its gross revenue from the sale of loose Tobacco-related device means any tobacco products as well as a pipe, rolling papers, ox other device intentionally designed or intended to be used in a manner which enables the chewing, sniffing, or smoking of tobacco ox tobacco products. Vending machine means any mechanical, electric ox electronic or other type of device which dispenses tobacco, tobacco products, ox tobacco-related devices upon the insertion of money, tokens, ox other form of payment directly into the machine by the person seeking to purchase the tobacco, tobacco product ox tobacco- related device. Sec. 26-32. Purpose of article. Because the city recognizes that many persons under the age of 18 years purchase ox otherwise obtain, possess, and use tobacco, tobacco products, and tobacco-related devices, and such sales, possession, and use axe violations of both state and federal laws, and because studies, which axe 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 axe 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, and tobacco-related devices fox the purpose of enforcing and existing laws, to protect minors against the serious effects associated with the illegal use of tobacco, tobacco products, and tobacco- related devices, and to prevent young people from starting to smoke as stated in Minn. Stats. ~ 144.391. 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 products, ox tobacco-related devices on the licensed premises, and the sale of such an item by an employee shall be considered a sale by the license holder. Nothing in this section shall be construed as prohibiting the city from also subjecting the clerk to whatever penalties are appropriate under this article, state or federal law, or other applicable law or regulation. -3- Sec.26-34. Penalties. (a) Licensees. Any licensee found to have violated this article, ox whose employee has violated this article, shall be charged an administrative penalty of $75.00 fox 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 fox 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) Other persons. Other individuals, other than minors, found to be in violation of this article shall be charged an administrative penalty of $50.00. (c) Minors. Minors found in unlawful possession of ox who unlawfully purchase ox attempt to purchase tobacco, tobacco products or tobacco-related devices shall be charged an administrative penalty of $100.00 and/or be required to complete tobacco-related education classes, diversion programs, or community services. (d) 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 oppartunity for an administrative hearing pursuant to section 26-35. (e) Prosecution of violation as misdemeanor. Nothing in this section shall prohibit the city from seeking prosecution as a misdemeanor fox any alleged violaton of this azticle. If the city elects to seek misdemeanor prosecution, such. action shall not prohibit an administrative penalty from also being imposed. Sec. 26-35. Administrative hearings on violations. (a) Request for heating. If a person accused of violating this article so requests within 45 days from the date of the notice, an administrative hearing shall be scheduled, the time and place of which shall be published and provided to the accused violator. (b) Hearing officer. The heating shall be conducted by a person authorized by the city to conduct the hearing. It shall be the duty of the hearing officer to determine whether a violation of this article has occurred. (c) Conduct of hearing. The hearing must be scheduled within 14 days of the request. Notice of the date, time and place of the hearing must be provided to the accused at least ten days prior to the hearing. At the hearing, the alleged violator should again be informed of the charges, the basis of the charges, and be given the opportunity to provide his response. The person should be allowed to present any evidence he believes to be relevant. Any evidence the city has collected should also be made a part of the record at the administrative hearing. Following the review of any evidence and testimony, the hearing officer shall determine whether a violation has occurred and, if so, the penalty. The decision of the hearing officer shall be in the form of written findings of fact, conclusions and an order that provides the reasons for the fatal decision. A copy of the hearing officer s findings of fact, conclusions and order shall be provided to the alleged violator. (d) Imposition of penalty. -4- If a penalty is imposed, the violator shall be informed where and how to pay the penalty and of the right to appeal the hearing officer's order pursuant to Minn. Stats. g 461.12, subd. 7. (e) Failure to pay penalty. If the violator fails to pay the administrative penalty, the city may collect the delinquent penalty by any legal means. Sec. 26-36. Inspection of licensed premises. All licensed premises shall be open to inspection by the city police department or other authorized city official during regulaz business hours. (coae 19s2, g ~os.18(1p Sec. 26-37. 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 is sold to test compliance with Minn. Stats. ~ 609.685. (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, ox tobacco-related devices. (2) Minors used for the purpose of compliance checks shall be supervised by designated law enforcement officers ox other designated city personnel. (3) Minors used for compliance checks shall not be guilty of the unlawful purchase ox attempted purchase ox the unlawful possession of tobacco, tobacco products, or tobacco-related devices when such items are obtained or attempted to be obtained as a part of the compliance check. (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 ox his employee, and shall produce any identification, if any exists, fox which he is asked. (c) State and federal compliance checks. Nothing in this section shall prohibit compliance checks authorized by state ox federal laws for educational, xeseazch, or training purposes, or required fox the enforcement of a particular state ox federal law. Sec. 26-38. Exceptions and defenses. Nothing in this article shall prevent the provision of tobacco, tobacco products, ox tobacco-related de~rices to a minor as part of a lawfully recognized religious, spiritual, ox cultural ceremony. It shall be an affirmative defense to a violation of this axtide fox a person to have relied in good faith upon proof of age as described in Minn. Stats. ~ 340A.503, subd. 6. Sec. 26-39. Violations relating to underage persons. (a) Illegal sales. It shall be a violation of this article for any person to sell or offer to sell any tobacco, tobacco product, or tobacco-related device to any person under the age of 18 years. (b) Illegal possession. It shall be a violation of this article for any motor to have in his possession any tobacco, tobacco product, ox tobacco-related device. This subsection shall not apply to minors lawfully involved in a compliance check. -5- (c) Illegal use. It shall be a violation of this article for any minor to smoke, chew, sniff, ox otherwise use any tobacco, tobacco product, of tobacco-related device. (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, ox tobacco-related device, and it shall be a violation of this article for any person to purchase of 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 ox use any tobacco, tobacco product, ox tobacco-related device. 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. Sec. 26-40. Vending machines. It shall be unlawful for any person licensed under this article to allow the sale of tobacco, tobacco products, ox tobacco-related devices by the means of a vending machine unless minors are at all times prohibited from entering the licensed establishment. Sec. 26-41. Self-service sales. (a) Single packages. (1) It shall be unlawful for a licensee under this article to allow the sale of single packages of cigarettes ox smokeless tobacco in open displays whereby the customer may have access to such items without having to request the item from the licensee or the licensee's employee and whereby there is not a physical exchange of the single package of cigarettes or single package of smokeless tobacco between the licensee or his clerk and the customer. (2) Any retailer selling single packages of cigarettes or smokeless tobacco at the time of adoption of the ordinance from which this article is derived shall comply with this section within 30 days. (3) The self-service restrictions described in this section shall not apply to retail stores which derive at least 90 percent of their revenue from tobacco and tobacco-related products and which cannot be entered at any time by persons younger than 18 years of age. (b) Cartons and multipack units. (1) Cartons and other multipack units of packages of cigarettes ox 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). Secs. 26-42--26-60. Reserved. DIVISION 2. LICENSE Sec.26-61. Required. No person shall sell or offer to sell any tobacco, tobacco products, ox tobacco-related devices without first having obtained a license to do so from the city. -6- Sec.26-62. Application. An application fox a license to sell tobacco, tobacco products, ox tobacco-related de~rices shall be made on a form provided by the city. The application shall contain the full name of the applicant, the applicant's residential and business addresses and telephone numbers, the name of the business fox which the license is sought, and any additional information the city deems necessary. l-3per~eeeip~-eta Sec. 26.63. Places Ineligible No license may be issued for: A place ox a business ineligible for a license under city ordinance ox state law Operation in a zoning district where the business is not allowed pursuant to Chapter 30 of this code. A tobacco products shop located within 500 feet of a school ox park The distance limitations shall be measured from property line to property line at the nearest point (4) A tobacco products shop containing a sample room except when the sample room is no more than 10 % of the gross floor area of the business and includes a separate ventilation system Sec. 26-63. Grounds for Denial or Revocation The following shall be grounds fox ~ denial or revocation of the issuance or renewal of a license under this division; however, except as may otherwise be provided by law, the existence of any particular ground fox denial ox revocation does not mean that the city must deny ox revoke the license. If a license is mistakenly issued ox renewed to a person, it shall be revoked upon the discovery that the person was ineligible fox the license under this section. (1) The applicant is under the age of 18 years. (2) The applicant has been convicted within the past five years of any violation of a federal, state ox local law, ordinance provision, ox other regulation relating to tobacco, tobacco products, or tobacco-related devices. (3) The applicant has had a license to sell tobacco, tobacco products, or tobacco-related devices revoked within the preceding ~ three years of the date of application. (4) The applicant fails to provide any information required on the application, ox provides false ox misleading information. (5) The applicant is prohibited by federal, state, ox local law, ordinance, or other regulation, from holding such a license. (6) Property taxes for the premises for which the license will be issued are delinquent. (7) Failure to pay the yearly application fee u The applicant is not of good moral character as defined in Chanter 38 Article I of this Code. Sec. 26-64. Action by council; issuance; notice of denial. The city council may either approve or deny the license applied fox under this division, or it may delay action for such reasonable period of time as necessary to complete any investigation of the application -7- or the applicant it deems necessary. If the city council shall approve the license, the city clerk shall issue the license to the applicant. If the city councIl denies the license, notice of the denial shall be given to the applicant along with notice of the applicant's right to appeal the decision pursuant to the appeal procedures in section 38-35. Sec.26-65. Fee. No license shall be issued under this division until the appropriate license fee shall be paid in full. the . Fees fox a license are set by ordinance on an annual basis in the city's fee schedule. For licenses issued and which axe 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. All licenses issued under this division shall be valid fox one calendar year. All licenses shall expire on December 31. Sec.26-67. Renewal. The renewal of a license issued under this division shall be handled in the same manner as the original application. The issuance of a license under this diczsion shall be considered a privilege and not an absolute right of the applicant and shall not entitle the holder to an automatic renewal of the license. Sec. 26-68. 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. Sec. 26-69. No Transfers. All licenses issued under this division shall be valid only on the premises for which the license was issued and only fox the person to whom the license was issued. No transfer of any license to another location ox person shall be valid without the prior approval of the city councIl. Transfer of 25 percent deemed a transfer of the license. If the licensee is a corporation that is wholly owned by another corporation the same provisions about the transfer of stock ox a controlling interest will apply to that amount of stock without prior Council approval is a ground fox revocation ox 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 ordinance. Sec.26-70. Posting. All licenses issued under this division shall be posted and displayed in plain view of the general public on the licensed premises. Sec. 26-71. Suspension or revocation. Any license issued under this division may be revoked or suspended. Secs. 26-72--26-90. Reserved ORDINANCE 08- AN ORDINANCE OF THE CITY OF ELK RIVER REPEALING ALL OF CHAPTER 38, ARTICLE VIII, "PEDDLERS AND SOLICITORS," AND ADOPTING NEW CHAPTER 38, ARTICLE VIII, "PEDDLERS, SOLICITORS, AND TRANSIENT MERCHANTS," OF THE CITY CODE OF ORDINANCES THE CITY COUNCIL OF THE CITY OF ELK RIVER DOES HEREBY ORDAIN A5 FOLLOWS: SECTION I. CHAPTER 38, ARTICLE VIII OF THE ELK RIVER MUNICIPAL CODE IS HEREBY REPEALED. SECTION 2. NEW CHAPTER 38, ARTICLE VIII OF THE ELK RIVER MUNICIPAL CODE IS HEREBY ADOPTED, AS FOLLOWS: CHAPTER 38, ARTICLE VIII. PEDDLERS, SOLICITORS, AND TRANSIENT MERCHANTS DIVISION I. GENERALLY Sec. 38-381. 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: Non-profit An organization that currently has tax-exempt status from either the state ox federal government and provides written evidence of that status. Peddler Any person with no fixed place of business dealing in the city who travels around from place to place, or street to street, carrying or transporting goods, ox soliciting fox all manner of waxes, services and merchandise, offering such waxes, service or merchandise fox sale or making sales and delivering articles to purchasers. Solicitor Any person who goes from place to place and/ox house to house soliciting or taking or attempting to take orders fox the purchase of any food, wares ox merchandise, including magazines, books, periodicals or personal property of any nature whatsoever for delivery in the future, or orders for the performance of a service in ox about the home ox place of business, such as furnace cleaning, roof repair or blacktopping. Transient Merchant Any person, whether as principal, employee or agent, who engages in, does, or transacts any temporary ox transient business in the city, either in one locality or traveling from place to place in the city, selling goods, wares, and merchandise, and who, for the purposes of carrying on such business, hires, leases, occupies or uses a building, structure, vehicle, property, ox other place for the exhibition and sale of such goods, wares, and merchandise. S:\Administrarion\Li<enses\Transient & Solicitor\Ordinance Amendment 2007\Ordinance Repeal Solic.doc Occupant A person owning, living, staying, ox working at a residence, including a guest. Sec. 38-382. Purpose of article. The purpose of this article is to protect citizens by imposing reasonable regulations on peddlers, solicitors, and transient merchants so as to prevent individuals who may be engaged in unlawful activities from posing as legitimate peddlers, solicitors, and transient merchants. In addition to the provisions of Ch. 38, Article I of this Code, the following shall apply: Sec. 38-383. Exemptions. All persons described in this section shall comply with the provisions of Section 38-414 even if they ate exempt from licensing. The city clerk may determine that certain business activities that may have characteristics similar to those regulated by this article may be exempt from the requirements of this article. Examples include: (1) Doing business by appointment. A bona fide appointment is one that is not merely obtained by going door-to-door in conjunction with the taking of orders, offering for sale or selling. (2) Solicitation of orders for future door-to-door delivery of newspapers. (3) Nonprofit groups that register with the city clerk. No fee is required to so register. This exception does not include individuals who axe paid to engage in peddling, soliciting, or transient merchant business. (4) Selling goods to retail or wholesale stores ox to professional ox industrial establishments for retail sale only. (5) Selling or peddling the products of the farm or garden grown and cultivated by such person, but such activities must comply with applicable health regulations. (6) All vendors involved in the following community events: Fourth of July celebration, Community Festival, Sherburne County Fair, Business Expo, and any other community event the city council deems exempt. (~ Garage sales, rummage sales, and craft sales. (8) Establishing a regular customer delivery route fox the delivery of perishable food and dairy products such as baked goods, milk, and groceries. (9) Selling goods or admissions to events by K-12 students where the proceeds of such sales benefit a program or activity in which the student is involved. Sec. 38-384. Duties of police. It shall be the duty of any police officer of the city to require any person seen soliciting, peddling or engaging in like activities, and who is not known to such officer to be duly licensed, to produce his license and city issued identification card and to enforce the provisions of this article against any person when in violation of this article. S:\Administtation\Licenses\Transient & Solicitor\Ordinance Amendment 2007\Oedinance Repeal So6c.doc Sec. 38-385. Exclusion by placard (1) Any resident of the city who wishes to exclude peddlers or solicitors from premises occupied by the resident may place upon ox near the usual entrance to such premises a printed placard or sign bearing the following notice: "Peddlers and Solicitors Prohibited." Such placard shall be at least 3 1 /2 inches long and 3 1 /2 inches wide and the printing thereon shall not be smaller than 49-point type. No peddler or solicitor, including those exempt from license requirements as provided in Section 38-383, shall enter in or upon any premises, or attempt to enter in or upon any premises, where such a placard ox sign is placed and maintained. (2) Violation of this section shall result in the revocation of a duly issued license. Secs.38-388--38-410. Reserved. DIVISION 2. LICENSE Sec. 38-411. Required. It shall be unlawful fox any person to engage in the activity of peddling, soliciting, or transient selling without fast having obtained a license and a city issued identification card in compliance with the provisions of this division. A separate license and city issued identification card shall be secured for each individual person engaged as a peddler, solicitor ox transient merchant. Sec. 38-412. Application. The application for the license provided fox in this division shall be made to the city clerk by filing the annual license fee and by completing an application form as provided by the city clerk. In addition to such information as the city clerk may require, the application shall include: (1) The name of the applicant and all persons associated in business in the city. (2) The permanent home address and full local address of the applicant, and the permanent and local telephone numbers of the applicant. (3) A brief written description of the nature of the business, the goods to be sold, and the applicant's method of operation. (4) Credentials from the person fox which the applicant proposes to do business, authorizing the applicant to act as such representative. (5) Dates the applicant intends to do business in the city. (6) The place where the goods or property proposed to be sold, ox orders taken for the sale thereof, is manufactured ox produced, where such goods or products axe located at the time the application is filed, and the proposed method of delivery. (~ Permission for the city to take a photo of applicant in order to create an identification card. S:\Administration\Liernses\Trnnsien[ & SoGci Wr\Ordinanee .Amrndmen[ 2007\Ordinance Repeal SoGadoc 4 (8) A statement as to whether or not the applicant or the person managing the business has been convicted of any crime, misdemeanor or violation of any city, state, ox federal law, involving activities licensed under this article, the nature of the offense and the punishment or penalty assessed therefor. (9) If a vehicle is to be used, a description of the vehicle, together with the license number or other means of identification. (10) A copy of all documents to be used by the applicant, such as pamphlets and brochures. (11) For transient merchants, the addresses of all places where the business is to be located, along with written consent of the owners or occupants. (12) The last three cities or other localities where the applicant conducted the proposed activity immediately preceding the date of the application. (13) Other information as deemed necessary by the city to administer and enforce this ordinance. Sec. 38-413. Investigation; granting or denial. (1) 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 fox 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. (2) The council shall also have the discretion to consider in granting, denying or renewing a license any reasonable facts or circumstances relating to public health, safety, and welfare, including but not limited to the following: (a) The proximity of the proposed activities to churches, schools, playgrounds, parks, or other community facilities which might be adversely affected. (b) The proximity of the proposed activities in relation to traffic congestion and parking which causes interference with normal traffic flow, congestion, ox inconvenience to the public. (c) Past fraud, misrepresentation, ox misstatement in the course of carrying on business (d) Any conviction of a crime that adversely affects a person's ability to honestly, safely, or lawfully conducted regulated activities, unless the individual can show sufficient evidence of rehabilitation as defined in M.S. 364.03, Subd. 3. Crimes that are considered directly related to the business of peddling, soliciting, and transient merchants include but are not limited to ctitnes involving assault, S:\Adminis--[ration\Licenses\Transirnt & Solicitor\Ordinance Amendment 2007\Ordinance Repeal Solic.doc crirr,+*+al sexual misconduct, burglary, robbery, fraud, theft, harassment, or moral turpitude. (e) Revocation of a past permit issued or past violations of any provisions of the Article. (f) Failure to provide any information required on the application, ox provides false or misleading information. (g) Denial or revocation of a license and/or identification card for peddling, soliciting, or transient sales by the city or another governmental body within three years before the application date. (3) Where a reasonable basis is found by the council to impose reasonable restrictions on the license, taking into consideration one ox 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. Sec. 38-414. Restrictions (1) Transient Merchants (a) Off-street parking required. No license for a transient merchant shall be issued for sales from any location which does not have sufficient parking for customers and fox areas where customer parking would interfere with normal traffic flow. The planning manager must determine that there is adequate off- street parking to serve both the prinrapal use of the property and the transient merchant use of the property. (b) Location near intersection. No transient merchant license shall be issued, and no sales shall take place, if the proposed location for transient merchant sales is within 150 feet of any intersection. (c) Duration of sales. No transient merchant license shall be issued for more than 365 days, during which sales shall be limited to 30 days unless approved by Council. At the time of the application fox the transient merchant license, the applicant shall state the times within the license period to be used by the applicant. (d) Operation on public property. It shall be unlawful for any transient merchant to sell or offer for sale any goods, waxes, or merchandise on any public lands or public right-of--way within the city. (e) Operation on private property. No transient merchant shall sell or offer for sale any goods, waxes, or merchandise within the raty from a stationary location on private property at any location where such sales would not be permitted by S:\Adminis[cation\Ircenses\Transient & Solicitor\Ordimnce Amendment 2007\Oxdinance Repeal SoGc.doc chapter 30, article VI, and without first obtaining the written consent of the property owner or occupant. (f) The merchandise displayed shall not occupy more than 100 square feet unless approved by Council. (g) Overnight storage. No overnight storage of transient merchant equipment or merchandise shall be permitted unless approved by Council. (h) Signs. No signage shall violate the provisions of this Code relating to size and number of business signs. (2) Peddlers and Solicitors (a) Except for those people specified in Section 38-383, no peddler/solicitor shall engage in peddling/soliciting without wearing and clearly displaying a city issued identification card and carrying a city issued license. and a driver's license or state identification card. (b) Hours fox unsolicited calls axe limited to Monday through Friday, noon to 6:00 p.m. (c) Only (1) one peddler/solicitor shall approach each residence and no peddler/solicitor from the same company can approach the same residence again unless invited back by the resident. (d) The license and identification card are not transferable to another person. (3) For transient merchants, peddlers, solicitors, and non-profits (a) Must not conduct business in a manner that creates a health ox safety hazard. (b) Must conduct business in a reasonably courteous manner at all times, must not engage in offensive, obscene, of abusive language, must not push open a door not opened by an occupant, must not place any portion of a person's body through an opened doorway without the invitation of an occupant, and must not physically attempt to stop an occupant from closing a door. (c) Must immediately leave private property when requested to do so by an occupant and must leave immediately upon completion of a transaction or an unsuccessful attempt to contact the occupant. (d) When entering onto a residential property go directly to the most visible door of the house, unless there is an adult present outside of the house ox in an open garage. (e) A person conducting business shall not make untrue statements to the people contacted regarding the purpose of the contact, orders placed by the neighbors, or the goods ox services offered. S:\Adminis[ration\Iiccnses\Transient & SoGdtor\Ordinance Amendmrn[ 2(p7\Ordinance Repeal SoGe.doc (f) A licensee shall not make statements to the people contacted indicating ox implying city endorsement of their activities or products by the city. (g) No license holder under this article, ox any person on his behalf, shall shout, blow a horn, ring a bell or use any sound devices upon any of the streets, alleys, parks, or other public places of the city or upon any private premises in the city. Sec. 38-415. Fee; term. The annual license fee fox engaging in a transient business, peddling, ox soliciting shall be established by ordinance by the city council and shall be paid at the time of application fox a license. A license, unless revoked, is for the calendar year ox part thereof for which it has been issued. License fees may not be prorated. Upon denial of any application fox a license, the city shall refund the annual fee paid. No fees ate required of solicitors taking orders for the shipment of goods through interstate commerce. Sec. 38-416. Denial, suspension, or revocation. Failure of any person to comply with any of the ordinances of the city ox the laws of the state shall be grounds fox denying, suspending, or revoking a license granted under this division. If a license is denied, suspended or revoked by the City Council, the city must notify the applicant with the reason(s). The applicant shall be allowed an opportunity fox a hearing pursuant to Chapter 38, Article I of this Code. Sec. 38-417. Penalties, Enforcement Violation of any provision of this chapter shall be a misdemeanor and subject to all penalties provided for under state law. Passed and adopted by the City Council of the City of Elk River this day of _, 2008. Stephanie Klinzing, Mayor ATTEST: Tina Allard, City Clerk 5:\Administration\Gcenses\'1'ransient & SoGutor\Ordinance Amendment 2007\Ordinance Repeal SoGad« ORDINANCE 08- CITY OF ELK RIVER AN ORDINANCE OF THE CITY OF ELK RIVER REPEALING ALL OF CHAPTER 38, ARTICLE IX, "SEXUALLY ORIENTED LAND USES," AND ADOPTING NEW CHAPTER 38, ARTICLE IX, "SEXUALLY ORIENTED BUSINESSES;' OF THE CITY CODE OF ORDINANCES THE CITY COUNCIL OF THE CITY OF ELK RIVER DOES HEREBY ORDAIN AS FOLLOWS: SECTION I. CHAPTER 38, ARTICLE IX OF THE ELK RIVER MUNICIPAL CODE IS HEREBY REPEALED. SECTION 2. NEW CHAPTER 38, ARTICLE XI OF THE ELK RIVER MUNICIPAL CODE IS HEREBY ADOPTED, A5 FOLLOWS: CHAPTER 38, ARTICLE XI. SEXUALLY ORIENTED BUSINESSES DIVISION I. GENERALLY Sec. 38-441. DeCnitions. 'The following words and terms have the following meanings when used in this section. Sexually-oriented business means: a business that meets any of the following criteria, measured on a daily, weekly, monthly, ox yearly basis: has more than 25% of its inventory, stock in trade, ox publicly displayed merchandise in sexually-oriented materials; devotes more than 25% of its floor area (not including storerooms, stock areas, bathrooms, basements, ox any portion of the business not open to the public) to sexually-oriented materials; or derives more than 25% of its gross revenues from sexually-oriented materials; ox A business that engages for any length of time in asexually-oriented use as defined below ar any other use that has an emphasis on specified sexual activities ox specified anatomical areas. Sexually-orzesated materials means visual, printed, ox aural materials, and other objects ox devices, that contain, depict, simulate, or describe specified sexual activities ox specified anatomical areas; or axe marketed fox use in conjunction with, ox axe pxirnaxily used only with ox duxuzg, specified sexual activities; ox are designed fox sexual stimulation S:\P.dminishation\Licenses\Sexually Oriented Business\Sexual Pina] Ord.doc Sexually-oriented use includes, but is not limited to, any of the following activities and businesses, even if the activity exists for only ashort-time: Adult body pazuting studao means an establishment or business that provides the service of applying paint, ink, or other substance, whether transparent ox non-transparent, to the body of a patron when the person is nude. Adult bnokrtore means an establishment ox business used for the baiter, rental, ox sale of items consisting of printed matter, pictures, slides, records, audio tape, videotape, movies, ox motion picture film if it meets the criteria of asexually-oriented busniess as defined above. Adult cabaret means a business ox establishment that provides dancing ox other live entertainment distinguished ox characterized by an emphasis on: (1) the depiction of nudity, specified sexual acti~nties ox specified anatomical areas; or (2) the presentation, display, ox depiction of matter that seeks to evoke, azouse, or excite sexual ox exotic feelings ox desire. Adult correpanionship establishment means a business ox establishment that provides the service Of engaging in ox listening to conversation, talk, ox discussion distinguished or chaxactexized by an emphasis on specified sexual activities ox specified anatomical areas. Adult conversation/rap parlor means a business ox establishment that provides the services of engaging in ox listening to concexsation, talk, ox discussion distuiguished ox chaxactexized by an emphasis on specified sexual activities or specified anatomical areas. Adult health/ j~ort club means ahealth/sport club that is distinguished ox chaxactexized by an emphasis on specified sexual activities ox specified anatomical areas. Adult hotel or motel means a hotel or motel that presents material distinguished ox chaxactexized by an emphasis on matter depicting, describing, ox relating to specified sexual activities ox specified anatomical areas. Adult massage parlor/health club means a massage parlor or health club that provides massage services distinguished or chaxactexized by an emphasis on specified sexual activities ox specified anatomical areas. Adr~lt nszui-motion picture theater means a business ar establishment with a capacity of less than 50 persons that as a prevailing practice presents on-premises viewing of movies, motion pictures, ox other material distinguished or chaxactexized by an emphasis on specified sexual activities ox specified anatomical areas. Adult modelz'ng studio means a business ox establishment that provides live models who, with the intent of providing sexual stimulation ox sexual gratification, engage in specified sexual activities ox display specified anatomical areas while being observed, painted, painted upon, sketched, drawn, sculptured, photographed, ox otherwise depicted. Adult motion picture arcade means any place to which the public is permitted ox invited where coui or slug-operated or electronically, electrically, ox mechanically controlled ox operated still ox motion picture machines, projectors, or other image-producutg devices axe used to show images to five ox fewer persons per machine at any one time, and where the unages so displayed are distinguished ox chaxactexized by an emphasis on depicting or describing specified sexual activities ox specified anatomical areas. S:\Administration\Licenses\Sexually Ouenced Business\Sexual Final Ocd.doc Adult motion picture tbeatermeans a motion picture theater with a capacity of 50 ox more persons that as a prevailing practice presents material distinguished ox chaxactexized by an emphasis on specified sexual activities or specified anatomical areas fox observation by patrons. Adult novelty bnriness means an establishment ox business that has a variety of items fox sale if it meets the criteria established as asexually-oriented use. Adult sauna means a sauna that excludes minors by reason of age, and that provides a steam bath ar heat bathing room used fox the purpose of bathing, relaxation, ox reducing, if the service provided by the sauna is distinguished or chaxactexized by an emphasis on specified sexual activities ox specified anatomical areas. Adult steam room/bathhouse faczlity means a building ox poxdon of a building used fox providing a steam bath ox heat bathing room used for the purpose of pleasure, bathing, relaxation, or reducing, if the building ox portion of a building restricts minors by reason of age and if the service provided by the steam room/bathhouse facility is distinguished ox characterized by an emphasis on specified sexual activities ox specified anatomical areas. ,Specified anatomical areas means: Less than completely and opaquely covered human genitals, public area, buttock, anus, ox female breast below a point immediately above the top of the axeola; and Human male genitals in a state of sexual arousal, whether or not completely and opaquely covered. Specified sexual activities means: Actual or simulated: sexual intercourse; oral copulation; anal intercourse; oral-anal copulation; bestiality; direct physical stimulation of unclothed genitals; flagellation or torture in the context of a sexual relationship; the use of excretory functions in the context of a sexual relationship; anilingus; copxophagy; copxophilia; cunnilingus; fellatio; necrophilia; pedophilia; piquexism; ox zooerastia; Clearly depicted human genitals in the state of sexual stimulation, arousal, ox tumescence; Use of human ox atumal ejaculation, sodomy, oral copulation, coitus, ox masturbation; Fondling or touching of nude human genitals, pubic regions, buttocks, ox female breasts; Situations involving a person ox persons, any of whom azc nude, who are clad in undergarments ox ut sexually revealing costumes and engaged in the flagellation, toxmxe, fettering, binding, ox other physical restraint of any person; Exotic ox lewd touching, fondling, ox other sexually oriented contact with an animal by a human being; ox Human excretion, uxinadon, menstruation, or vaginal ox anal irrigation. Sec. 38-442. Purpose. The purpose of this section is to prescribe licensing requirements fox sexually-oriented businesses to protect and enforce the public health, safety, and welfare concerns through the appropriate S:\Administraticm\Licenses\Sexually Oriented Business\Sexual Final Ord.doc 4 departments. Public safety concerns, such as criminal complaints relating to prostitution, providing services to minors, and illicit drug use and/ox sales have been identified by law enforcement and other reports and studies to be potential public safety concerns associated with sexually oriented businesses. rurthermoxc, the potential fox sexually transmitted diseases that can be generated in confined areas in sexually oriented businesses has been identified in public health reports as a public health concern. Sec. 38-443. Exemptions. This section does not regulate the following: (1) Material with significant literary content or social commentary; (2) A business where sexually-oriented materials axe sold, bartered, distributed, leased, furnished, ox otherwise provided fox off-site use ox entertainment, if the sexually-oriented material on each item is blocked from view by an opaque cover as required by Minn. Stat ~ 617.293, and each item is in an area accessible only by an employee of the business; (3) A person ox argatuzation exempted under Minn. Stat. ~ 617.295; (4) Activity regulated under Blinn. Stat. ~ 617.251; (5) Displaying works of art showing specified anatomical areas, so long as no sexually-oriented materials are fox sale, and the business does not have a liquor license; and (6) Movies sated G, PG, PG13, NC17, or R. Secs. 38-444 to 38-450 Reserved. DIVISION 2. LICENSING Sec. 38-451. Required No person may own ox operate asexually-oxicnted busuiess within the Ciry of Elk River unless the person is currently licensed under this section. 1'he Council must act on the application within 60 days. Sec. 38-452. Application (1) The application fox asexually-oxicnted business license under this section must be made on a form supplied by the city and must provide the following information: (a) The name of the applicant and all persons associated in the business; (b) The address and legal description of the premises including a map of the area fox which the license is sought, showing dimensions, locations of buildings, street access, and parking facilities; (c) Whether all real estate and personal property taxes that axe due and payable fox the premises to be licensed have been paid, and if not paid, the years and amounts that axe unpaid; S:\P.dministra[ion\I,icenses\Sexually Oriented Business\Sexual Final Ord.doc (d) VG'hethex the applicant has ever used ox been known by a name other than his/her true name, and if so, what was the name, ox names, and information concerning dates and places where used; (e) Whether the applicant is married or single. If married, the true name, place and date of birth and street address of applicant's spouse; (f) Street address at which applicant and spouse have lived during the preceding ten years; (g) I{ind, name, and location of every business or occupation applicant and spouse have been engaged in during the preceding ten years; (h) Names and addresses of applicant's and spouse's employers and paxtnexs, if any, for the preceding ten years; (i) Whether the applicant has ever been convicted of a violation of a state law ox local ordinance, other than anon-alcohol related traffic offense. If so, the applicant must furnish information as t0 the time, place, and offense for which convictions were had; (j) Whether the applicant or spouse has ever been engaged as an employee ox in operating asexually-oriented business, massage business, ox other business of a similar nature. If so, applicant must furnish information as to the time, place, and length of employment. (k) Whether the applicant has ever been in military service. If so, the applicant must, upon request, exhibit all discharges; (1) If the applicant is a paxmexship, the name azid address of all parmexs and all information concerning each partner as is required of a single applicant as above. A managing partner, ox paxtnexs, must be designated. The interest of each paxmex, ox paxtnexs in the business must be submitted with the application and, if the paxmexship is required to file a certificate as to trade name under the provisions of Minn. Stat. Chapter 333, a copy of the certificate must be attached to the application; (m) If the applicant is a coxpoxadon or other organization, the applicant must submit the following: Name, and if incorporated, the state of incorporation; ii) Names and addresses of all officers; iii) The name of the manages ox proprietor ox other agent in charge of, ox to be in charge of the premises to be licensed, giving all information about said person as is required in the case of a single applicant; and iv) A list of all persons who, single ox together with their spouse own ox control an interest in said corporation or association in excess of five percent ar who SWdministration\Licenses\Sexually Oriented Business\Sexual Final Ord.doc axe officers of said corporation or association, together with their addresses and all information as is required fox a single applicant. (n) The amount of the investment that the applicant has in the business, land, building, premises, fixtares, furniture, or stock in trade, and proof of the source of the money; (o) Whether the applicant holds a current license fox asexually-oriented business ox shnilax business from another governmental unit; (p) Whether the applicant has ever been denied a license fox asexually-oriented business ox similar business from another governmental unit; (~ additional information that the city deems appropriate (2) No license may be issued until the police department has conducted an investigation of the representations set forth in the application, the applicant's moral character, and the applicant's fmancial status. (3) No license, except for a renewed license, may be issued fox asexually-oriented business until the Council has held a public hearing. (4) Granting of License: The City Council shall hold a public hearing. Sec. 38-453. Grounds for Denial; Appeal (1) No license provided for in this division may be granted to or held by the following: (a) a person who is not a citizen of the Lnited States ox a resident alien. (b) A person who is a minor at the time the application is filed. (c) a person who has been convicted of a crime directly related to the licensed occupation and has not shown competent evidence of sufficient rehabilitation and present fitness to perform the duties of the owner, operator, or manager of a sexually-oriented business under Minn. Stat. ~ 364.03, subd. 3, or a person who is not of good moral character and repute. (d) A person who has had a license fox asexually-oriented business ox similar business revoked anywhere within five years of the license application. (e) In the case of an individual, is not a resident of the state; in the case of a paxmership, the managing paxmex is not a resident of the state; ox in the case of a corporation, the manager is not a resident of the state. The required residency must be established by the time the license is issued and maintained throughout the existence of the license and all renewals. (f) a place ox business ineligible for a license under city ordinance ox state law. (g) Operation in a zoning district where the business is not alloeved pursuant to Chapter 30 of this code. 5:\Administration\Licenses\Sexually Oriented Business\Sexual Final Ord.doc (h) A place or busuiess that is currently licensed as a tattoo establishment, pawnshop, massage business, or establishment that sells alcoholic beverages. (i) A person who fails to submit a fully completed application form. (j) A person who fails to pay the yearly application fee. (k) In addition to (p~ above, no sexually-oriented business shall be operated or located within 1,000 feet of any residence, church, school, daycare center, library, park, ox any area ox facility used fox public gatherings, nor within 250 feet of any establishment licensed fox the sale of intoxicating liquor, nor within 1,000 feet of any sexually-oriented busuiess. The distance limitations shall be measured from property line to property line at the nearest point. (2) The Council shall have the discretion to consider in granting, denying, ox renewing a license any reasonable facts ox circumstances relating to public health, safety, and welfare, including, but not limited to the following: (a) Operation on a premises on evhich taxes, assessments, ox other financial claims of the city or other government agency axe delinquent and unpaid. (b) False statement ox material omission in the license application ox investigation. (c) Health hazards attributable to the business. (d) Each licensee has the continuing duty to properly notify the city clerk of a change in the information or facts required to be furnished on the application fox a license. This duty continues throughout the period of the license. Failure to notify the city may be grounds for denial ox revocation. (3) Violations (a) The Council may either suspend fox up to 60 days or revoke a license and/or impose a civil fine not to exceed $2,000.00 fox a violation upon finding that the licensee ox an agent or employee of the licensee has failed to comply with an applicable statute, regulation, ox ordinance relating to the subject matter of Chapter 38. (4) Appeal (a) If the application is denied, the city must notify the applicant with the reason(s) stated fox denial. The licensee shall be allowed an opportunity fox a hearing pursuant to Chapter 38, Article I of this Code. An applicant wishing to appeal the action of the City Council may seek a writ of certiorari before the Minnesota Court of Appeals. Sec. 38-454. No Transfers (1) A license will be issued only to the applicant and fox the premises described iu the application. No license may be transferred to another person ox place without application in the same manner as an application fox a new license. Transfer of 25 percent ox more of the stock of a corporation ox of a controlling interest of it, whichever is less, will be deemed a transfer of the license. If the licensee is a corporation that is wholly owned by another S:Wdminishation\[.icenses\Sezually Oriented Business\Sexual Final Ord.doc corporation, the same provisions about the transfer of stock or a controlling interest will apply to that parent corporation, any second parent corporation that wholly owns the parent corporation, and all other similarly situated parent corporations up through the chain of ownership. Transfer of this amount of stock without prior CouncIl approval is a ground for revocation ox 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 ordinance. (2) In the case of the death of a licensee, the personal representative of a licensee may continue operation of the business fox not mote than 90 days after the licensee's death. Sec. 38-455 Right of Inspections The sexually-oriented business shall be subject to inspections of the business. The business shall permit access for law enforcement, health officials and/or any city employees who may need access in order to enforce compliance with the city code ox any other laws. A license may be revoked ox denied if the licensee denies access to the business for the purposes of making an inspection. Sec. 38-456. Restrictions and Regulations Violations of these restrictions can be cause fox revocation, suspension, ox civil penalty. (1) No owner, manager, ox employee may allow sexually-oriented materials or entertainment to be visible or perceivable in any manner, including aurally, at any time from outside of the business. (2) No owner, manager, of employee may allow a person under the age of 18 to enter the business. (3) No owner, manager, ox employee may allow a person under the age of 18 to have access to sexually-oriented materials, whether by sight, purchase, touch, ox another means. (4) No owner or manager may employ a person under the age of 18 on the licensed premises and shall maintain documentation of the name and age of all employees. This documentation shall be made available fox inspection by law enforcement. (5) No owner, manager, or employee may have been convicted of a sex crime, as identified in Minn. Star. X609.293 through 609.352, 609.746 through 609.749, 609.79, 518B.01, ox related statute dealing with sexual assault, sexual conduct, harassment, obscenity, or domestic abuse within the past five years. (6) ' There shall be' ~ coverings ox tablecloths on any of the talkes, bars, and/or courttexs tti the sexually-oriented ~rxsiness. (7) No business may exceed 10,000 square feet in gross floor area. (8) No oar, manx, or etnployee may allow,a patron, employee, ox other person on the primes to ~hysicallp contact, irx p~ilC view, a specified anatortn~a=l area of himself ar herself, or of another person, except that a live performer may touch himself ar herself. S:\.SdministrationU.icensesl5exually Oriented Business\Sexual Final Ord.doc (9) Alive pexfoxrnex must remain at all times a miniinum distance of 10 feet from metnbexs of the audience, and must perform on a platform intended for that purpose, that mustbe raised at least two feet from the level of the floor on which the audience is located. No pe>•foxmex may solicit ox accept money, a tip, or other item from a member of the audience. (10) No business may have booths, stalls, partitioned portions of a room; ox individual rooms, except as follows: (a) Restrooms are allowed as long as they axe no larger than reasonable-necessary to serve the purposes of a xestroom, no other activities are provided ox allowed in the rooms, and there are no chairs, benches, ox reclining surfaces in the rooms; and (b) Storage rooms and private offices axe allowed, if the storage rooms and offices are solely used fox running the business and no person other than the owner, manager, and employees is allowed in them. (11) No licensee shall operate from 11:00 p.m. Saturday to 9:00 a.m. Monday, nor shall a licensee operate on any othcx day before 9:00 a.m. or after 11:00 p.m. No licensee shall operate on legal holidays. (12) A licensee is subject to the conditions in this section, all other provisions of this ordinance, and of other applicable regulations, ordinance, ox state law. (13) A licensee is responsible fox the conduct of his of her place of business and the conditions of order ui it. The act of an employee of the licensed premises is deemed the act of the licensee as well, and the licensee is liable for all penalties provided by this ordinance equally with the employee, except criminal penalties. (14) The license must be posted in a conspicuous place in the premises for which it is used. (15) The layout of display and/or all public areas shall be designed so that the management of the establishment and/ox law enforcement can observe all patrons at all times, while the patrons are in the business, from any other public location in the business. The only exception to this requirement is fox xestrooms, which shall be located within 50 feet of the public entrance/exit of the building. Sec. 38-457. Fee: term (1) An applicant must pay the investigation fee specified in the city's fee schedule. This fee will be fox the purpose of conducting a background and financial investigation of the applicant. There will be no refund of the investigation fee after the investigation has begun. (2) Fees fox a license axe set by ordinance on an annual basis in the city's fee schedule. (3) Each license expires on December 31~` of the year in which it is issued. Fees fox licenses issued during the license year will be prorated according to the number of months remaining in the year. S:\Administea[ion\Licenses\Sexually Oriented Business\Sexual Final Ord.doc 10 Sec. 38-458. Penalty Any person violating any provision of this ordinance shall be guilty of a xxusdemeanox, and upon conviction shall by subject to the penalties fox a rxusdemeanor as prescribed by state law. Each day a violation continues shall be considered a separate misdemeanor offense punishable by a separate xxusdemeanox penalty. 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