6.1. SR 07-21-2008REQUEST FOR ACTION
To Item Number
Ci Council 6.1.
Agenda Section Meeting Date Prepared by
Administration ul 21, 2008 Tina Allard, Ci Clerk
Item Description Reviewed by
Ordinance Repealing all of Chapter 26, Article II and Adopting Lori ohnson, Ci Administrator
New Section Regarding Tobacco, Public Hearing Reviewed by
^ Resolution Approving S>_unmary Publication of the
Ordinance
Action Requested
Two Council motions:
1. Adopt an ordinance repealing our current tobacco ordinance and adopting a new tobacco
ordinance.
2. Adopt a resolution which allows fox summary publication of the ordinance. Afour-fifth vote is
required.
Background/Discussion
At the April 14, 2008 worksession, Council reviewed this proposed ordinance. The city attorney has
reviewed this ordinance. Per state law, licensees must be given 30 days notice of the city's intent to
change the ordinance and all licensees were mailed a notice along with a copy of the proposed ordinance.
Changes were made to the ordinance nl order to address ventilation issues in amulti-tenant facility and
distance requirements to schools and parks for tobacco products shops, grounds fox denial or revocation
of a license, application requirements, and transfer of ownership of a licensed establishment.
Council mentioned the following concerns at the worksession meeting:
^ The 90 percent threshold for the definition of a tobacco products shop is too high and should be set at
50 percent or more. State law needs to be reviewed to see if this definition can be changed.
^ Concern about having a separate room for sampling. People are going to the shop specifically for
tobacco and this would be too much government interference. There was also concern about the shops
becoming a smoking lounge.
^ Concern about having a separate ventilation system. There was concern about tobacco shops located in
multi-tenant buildings and how the ventilation would affect the neighbors.
^ Change the language regarding transfers.
^ Inclusion of a penalty clause.
The city attorney recommended leaving the definition of a tobacco products shop at the 90 percent
threshold. It is the same definition that is in the Freedom to Breath Act and the self-service requirements
under state law requites a shop to meet this threshold.
S:\Administration\Council RCA\Licensing\Tobacco\2008\Ordinance Repeal.doc
Staff would recommend grandfathering in the Smoke Shop, located at 19112 Freeport Street from the
ventilation and distance requirements because they are already in business. If the Smoke Shop were to
change ownership the new owner would be required to meet the ventilation requirements and apply for a
variance from the distance requirements.
Attachments
^ Ordinance
^ Resolution for Summary Publication
Action Motion by Second by Vote
Follow Up
S:\Administsation\Council RCA\Licensing\Tobacco\2008\Ordinance Repeal.doc
-1-
ORDINANCE 08-
AN ORDINANCE OF THE CITY OF ELK RIVER REPEALING ALL OF CHAPTER
26, ARTICLE II, "TOBACCO" AND ADOPTING NEW SECTION 26, ARTICLE 11,
"TOBACCO" OF THE CITY CODE OF ORDINANCES
THE CITY COUNCIL OF THE CITY OF ELK RIVER DOES HEREBY ORDAIN AS
FOLLOWS:
SECTION I. CHAPTER 26, ARTICLE II OF THE ELK RIVER MUNICIPAL CODE IS
HEREBY REPEALED.
SECTION 2. NEW CHAPTER 26, ARTICLE II OF THE ELK RIVER MUNICIPAL
CODE IS HEREBY ADOPTED, AS FOLLOWS:
CHAPTER 26, 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 are following and complying with the requirements of this
article. Compliance checks shall involve the use of minors as authorized by this article. Compliance
checks shall also mean the use of minors who attempt to purchase tobacco, tobacco products, or
tobacco-related devices for educational, research and training purposes as authorized by state and
federal laws. Compliance checks may also be conducted by other units of government for the purpose
of enforcing appropriate federal, state, or local laws and regulations relating to tobacco, tobacco
products, and tobacco-related devices.
Individually packaged
means the practice of selling any tobacco or tobacco product wrapped individually for sale.
Individually wrapped tobacco and tobacco products shall include, but not be limited to, single cigarette
packs, single bags or cans of loose tobacco in any form, and single cans or other packaging of snuff or
chewing tobacco. Cartons or other packaging containing more than a single pack or other container as
described in this 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.
S:\Administration\Licenses\Tobacco\Ordinance Amendment 2007\Ordinance Final Tobacco May 09.doc
-2-
Moveable place of business
means any form of business operated out of a 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, or tobacco-related devices are available
for sale to the general public. Retail establishments shall include, but not be limited to, grocery stores,
convenience stores, and restaurants.
Sale
means any transfer of goods for money, trade, barter, or other consideration.
Self-service merchandising
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, or tobacco-related devices without the
assistance or intervention of the licensee or the licensee's employee. The assistance or intervention
shall entail the actual physical exchange of the tobacco, tobacco product, or tobacco-related device
between the customer and the licensee or employee. Self-service merchandising shall not include
vending machines.
Tobacco and tobacco product
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, sniffing, smoking in a pipe or other
tobacco-related devices.
Tobacco products shop
A place or business that derives more than 90 percent of its gross revenue from the sale of tobacco
and tobacco products or tobacco-related devices and in which the sale of other products is merely
incidental.
Tobacco-related device
means any tobacco products as well as a pipe, rolling papers, or other device intentionally designed or
intended to be used in a manner which enables the chewing, sniffing, or smoking of tobacco or
tobacco products.
Vending machine
means any mechanical, electric or electronic or other type of device which dispenses tobacco, tobacco
products, or tobacco-related devices upon the insertion of money, tokens, or other form of payment
directly into the machine by the person seeking to purchase the tobacco, tobacco product or tobacco-
related device.
Sec. 26-32. Purpose of article.
Because the city recognizes that many persons under the age of 18 years purchase or otherwise obtain,
possess, and use tobacco, tobacco products, and tobacco-related devices, and that such sales,
S:\Administration\Licenses\Tobacco\Ordinance Amendment 2007\Ordinance Final Tobacco May 09.doc
-3-
possession, and use are violations of both state and federal laws, and because studies, which are hereby
accepted and adopted, have shown that most smokers begin smoking before they have reached the age
of 18 years and that those persons who reach the age of 18 years without having started smoking are
significantly less likely to begin smoking, and because smoking has been shown to be the cause of
several serious health problems which subsequently place a financial burden on all levels of
government, this article shall be intended to regulate the sale, possession, and use of tobacco, tobacco
products, and tobacco-related devices for the purpose of enforcing 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, or tobacco-related devices on the licensed premises, and the sale of
such an item by an employee shall be considered a sale by the license holder. Nothing in this section
shall be construed as prohibiting the city from also subjecting the clerk to whatever penalties are
appropriate under this article, state or federal law, or other applicable law or regulation.
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.
(Code 1982, ~ 708.18(1))
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 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, or tobacco-related
devices.
(2) Minors used for the purpose of compliance checks shall be supervised by designated
law enforcement officers or other designated city personnel.
(3) Minors used for compliance checks shall not be guilty of the unlawful purchase or
attempted purchase or the unlawful possession of tobacco, tobacco products, 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 or his employee,
and shall produce any identification, if any exists, for which he is asked.
(c) State and federal compliance checks. Nothing in this section shall prohibit compliance checks
authorized by state or federal laws for educational, research, or training purposes, or required
for the enforcement of a particular state or federal law.
S:\Administration\Licenses\Tobacco\Ordinance Amendment 2007\Ordinance Final Tobacco May 09.doc
-4-
Sec. 26-36. Exceptions and defenses.
Nothing in this article shall prevent the provision of tobacco, tobacco products, or tobacco-related
devices to a minor as part of a lawfully recognized religious, spiritual, or cultural ceremony. It shall be
an affirmative defense to a violation of this article for a person to have relied in good faith upon proof
of age as described in Minn. Stats. ~ 340A.503, subd. 6.
Sec. 26-37. 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 minor to have in his possession
any tobacco, tobacco product, or tobacco-related device. This subsection shall not apply to
minors lawfully involved in a compliance check.
(c) Illegal use. It shall be a violation of this article for any minor to smoke, chew, sniff, or
otherwise use any tobacco, tobacco product, or 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, or tobacco-related device, and it
shall be a violation of this article for any person to purchase or otherwise obtain such items on
behalf of a minor. It shall further be a violation for any person to coerce or attempt to coerce a
minor to illegally purchase or otherwise obtain or use any tobacco, tobacco product, or
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. 26-38. Vending machines.
It shall be unlawful for any person to sell tobacco, tobacco products, or tobacco-related devices by the
means of a vending machine, except in a licensed tobacco products shop.
Sec. 26-39. 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 or smokeless tobacco 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 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.
(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).
S:\Administration\Licenses\Tobacco\Ordinance Amendment 2007\Ordinance Final Tobacco May 09.doc
-5-
Sec. 26-40. Tobacco Products Shop
(a) Tobacco products shops, as defined by this Article cannot be entered at anytime by persons
younger than 18 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.
(3) the proposed location is located within 500 feet of a school or park property. 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 amulti-tenant facility.
(4) Where the proposed location is in amulti-tenant facility and does not have its own
separate ventilation system.
Secs. 26-41 to 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.
All licenses issued under this division shall be valid for one calendar year. All licenses shall expire on
December 31.
Sec.26-67. Required.
No person shall sell or offer to sell any tobacco, tobacco products, or tobacco-related devices without
first having obtained a license to do so from the city.
Sec.26-68. Application.
The application for the license provided for 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:
(a) Whether the applicant is a natural person, corporation, partnership, or other form of
organization.
(b) The name of the applicant and all persons associated in the business.
S:\Administration\Licenses\T'obacco\Ordinance Amendment 2007\Ordinance Final Tobacco May 09.doc
-6-
(c) The permanent home address and the home telephone number of the applicant and all persons
associated in the business.
(d) The address of the premises to be licensed.
(e) 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.
(f) 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.
(g) 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 article, the nature of the
offense and the punishment or penalty assessed therefor.
(h) Other localities where the applicant has had or currently has a tobacco license.
Sec. 26-69. Grounds for Denial or Revocation
(a) All license applications under this division shall be made to the city clerk and referred to the
chief of police and such other municipal departments or offices as the city clerk deems
necessary for verification and investigation of the facts set forth in the application. The chief of
police and other department heads or officers consulted shall submit their reports and
recommendations to the city clerk.
(b) The existence of any particular ground for denial or revocation does not mean that the city
must deny or revoke the license. If a license is mistakenly issued or renewed to a person, it shall
be revoked upon the discovery that the person was ineligible for the license under this section.
(c) The council shall have the discretion to consider, in granting, denying, revoking, or renewing a
license, any reasonable facts or circumstances relating to public health, safety, and welfare,
including but not limited to the following:
(1) The applicant is under the age of 18 years.
(2) The applicant has been convicted within the past five years of any violation of a federal,
state or local law, ordinance provision, or other regulation relating to tobacco, 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, 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.
S:\Administration\Licenses\Tobacco\Ordinance Amendment 2007\Ordinance Final Tobacco May 09.doc
-7-
(7) Failure to pay the yearly application fee.
(d) Where a reasonable basis is found by the council to impose reasonable restrictions on the
license, taking into consideration one or more of the facts or circumstances, the council may
upon issuance or renewal of a license impose such reasonable conditions and restrictions on
the manner and circumstances under which the licensed activity shall be conducted to preserve
the public peace and protect and promote good order and security.
(e) Failure of any person to comply with any of the ordinances of the city or the laws of the state
shall be grounds for denying or revoking a license granted under this division. If a license is
proposed to be denied or revoked by the City Council, the city must notify the applicant with
the reason(s). The applicant shall be allowed an opportunity for a hearing pursuant to Chapter
38, Article II of this Code.
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.
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 xesult in the unlicensed sale of tobacco, tobacco products, and tobacco related
devices. 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 ordinance.
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) Licensees.
Any licensee found to have violated this article, or whose employee has violated this. article,
shall be charged an administrative penalty of $75.00 for a first violation of this article, $200.00
for a second offense at the same licensed premises within a 24-month period, and $250.00 for a
S:\Administration\Licenses\Tobacco\Ordinance Amendment 2007\Ordinance Final Tobacco May 09.doc
-8-
thvrd 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.
(c) Minors.
Minors found in unlawful possession of or who unlawfully purchase or attempt to purchase
tobacco, tobacco products or tobacco-related devices shall be prosecuted according to state law
and 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 opportunity for a hearing
pursuant to Chapter 38 Article II.
(e) Prosecution of violation as misdemeanor.
Nothing in this section shall prohibit the city from seeking prosecution as a misdemeanor for
any alleged violation of this article or state law. If the city elects to seek misdemeanor
prosecution, such action shall not prohibit an administrative penalty from also being imposed.
(~ Any person violating any provision of this ordinance or of any other law shall be guilty of a
misdemeanor, and upon conviction shall by subject to the penalties for a misdemeanor as
prescribed by state law. Each day a violation continues shall be considered a separate
misdemeanor offense punishable by a separate misdemeanor penalty. A fine or sentence
imposed does not affect the right of the city to suspend or revoke the license of the licensee as
the Council deems appropriate.
Secs. 26-74 to 26-90. Reserved.
Passed and adopted by the City Council of the City of Elk River this day of , 2008.
Stephanie Klinzing, Mayor
ATTEST:
Tina Allard, Ciry Clerk
S:\Administration\Licenses\Tobacco\Ordinance Amendment 2007\Ordinance Final Tobacco May 09.doc
RESOLUTION 08-
A RESOLUTION OF THE CITY OF ELK RIVER
A RESOLUTION APPROVING NOTICE OF
SUMMARY PUBLICATION OF ORDINANCE #08-_
AN ORDINANCE REPEALING ALL OF CHAPTER 26, ARTICLE I1,
"TOBACCO," AND ADOPTING NEW CHAPTER 26, ARTICLE II,
"TOBACCO," OF THE CITY CODE OF ORDINANCES
WHEREAS, on July 21, 2008 the Elk River City Council adopted Ordinance 08-_ an
Ordinance repealing Chapter 26, Article II, titled "Tobacco," and adopting a
new Chapter 26, Article II titled, "Tobacco," of the City Code of
Ordinances; and
WHEREAS, the adoption to the ordinance sets forth definitions, licensee responsibilities,
compliance checks, application requirements for applying for a license,
grounds for granting or denying a license, transfer of ownership and how it
applies to licensing, penalties, applicants rights for a hearing process,
ventilation requirements for tobacco products shops, and distance
requirements to schools/parks for tobacco products shops; and
WHEREAS, a copy of the full text of this ordinance is available by standard or electronic
mail or for inspection at the office of the Elk River City Clerk, 13065 Orono
Parkway, during regular business hours, 8:00 a.m. to 4:30 p.m., Monday
through Friday; and
NOW, THEREFORE, BE IT RESOLVED, that the Ciry Council, by at least four-fifths
vote, authorizes the publication of the title and summary of Ordinance 08-
_ and that Ordinance 08-~ shall become effective upon publication of
this resolution.
Passed and adopted this 21St day of July 2008.
Stephanie Klinzing, Mayor
ATTEST:
Tina Allard, Ciry Clerk
S:\Administration\Licenses\Tobacco\Ordinance Amendment 2007\Summary Publication Resolution.doc