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HomeMy WebLinkAbout1143 Ord (Tobacco Sales; Possession and Use under 21) ORDINANCE NO. 1143 CITY OF STILLWATER WASHINGTON COUNTY, MINNESOTA AN ORDINANCE AMENDING STILLWATER CITY CODE SECTION 41-2 - LICENSING OF TOBACCO SALES; POSSESSION AND USE The City Council of Stillwater does ordain: SECTION 1. AMENDMENT. Stillwater City Code Section 41-2 relating to licensing of tobacco sales, possession and use is hereby amended as follows: Sec.41-2. - Licensing of tobacco sales; possession and use. Subd. 1. Purpose. Because the city recognizes that many persons under 21 years of age purchase or otherwise obtain,possess,and use tobacco,tobacco products,and tobacco related devices, and such sales, possession, and use are violations of both state and federal laws. Subd. 2. Definitions and interpretations. Tobacco or tobacco products means any substance or item containing tobacco leaf, including but not limited to, cigarettes; cigars; pipe tobacco; snuff, fine cut or other chewing tobacco; cheroots; stogies; perique; granulated,plug cut, crimp cut, ready-rubbed, and other smoking tobacco; snuff flowers; cavendish; shorts; plug and twist tobaccos; dipping tobaccos; refuse scraps, clippings, cuttings, and sweepings of tobacco; and other kinds and forms of tobacco leaf prepared in such manner as to be suitable for chewing, sniffing or smoking. Tobacco related devices means any tobacco product 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. 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 shall entail the actual physical exchange of tobacco, tobacco product or tobacco related device between the customer and the licensee or employee.Self-service merchandising shall not include vending machines. 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. Individually packaged means the practice of selling any tobacco or tobacco product wrapped individually for sale. Individually wrapped tobacco and tobacco products shall include, but not be limited to, single cigarette packs, single bags or cans of loose tobacco in any form, and single cans or other packaging of snuff or chewing tobacco. Cartons or other packaging containing more than a single pack or other container as described in this subdivision shall not be considered individually packaged. Loosies means a single or individually packaged cigarette or any other tobacco product that has been removed from its packaging and sold individually. The term loosies does not include individual cigars with a retail price,before any sales tax,of more than$2.00 per cigar. 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. 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 store front or other permanent type of structure authorized for sales transactions. Sale means any transfer of goods for money,trade, barter or other consideration. 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 section. Compliance checks shall involve the use of persons between the ages of 18 and 21 as authorized by this section.Compliance checks shall also mean the use of persons between the ages of 18 and 21 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. Subd. 3. License. No person may sell or offer to sell any tobacco, tobacco products, or tobacco related device without first having obtained a license to do so from the city. (1) Application.An application for a license to sell tobacco,tobacco products, or tobacco related devices must be made on a form provided by the city. The application must contain the full name of the applicant, date of birth, driver's license number, social security number the applicant's residential and business addresses and telephone numbers, the name of the business for which the license is sought, names of all managers, addresses, date of birth, driver's license number, and any additional information the city deems necessary.The city clerk, with the assistance of the police chief or the chiefs designee, is responsible to see that background checks are done on all applicants and managers. Upon receipt of a completed application, the city clerk must forward the Page 2 of 8 application to city council for action at its next regularly scheduled council meeting. If the city clerk determines that an application is incomplete, he or she must return the application to the applicant with notice of the information necessary to make the application complete. (2) Action. The city council may either approve or deny the license, or it may delay action for such reasonable period of time as necessary to complete any investigation of the application or the applicant it deems necessary. (3) Term. All licenses issued under this section are valid until December 31 of each calendar year. (4) Revocation or suspension. Any license issued under this section may be revoked or suspended as provided in the violations and penalties subdivision of this section. (5) Transfers. All licenses issued under this section are 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 is valid without the prior approval of the city council. (6) Moveable place of business. No license may be issued to a moveable place of business. Only fixed location businesses are eligible to be licensed under this section. (7) Display. All licenses must be posted and displayed in plain view of the general public on the licensed premise. (8) Renewals. The renewal of a license issued under this section must be handled in the same manner as the original application. The request for a renewal must be made at least 60 days before the expiration of the current license. Subd. 4. Fees. No license may be issued under this section until the appropriate license fee is paid in full. The fee is set by the city council by resolution duly enacted from time to time. Subd. 5. Basis for denial of license.Any one of the following are grounds for denying the issuance or renewal of a license under this section; however, except as may otherwise be provided by law,the existence of any particular ground for denial does not mean that the city must deny the license. If a license is mistakenly issued or renewed to a person, it will be revoked upon the discovery that the person was ineligible for the license under this subdivision. (1) The applicant is under the age of eighteen years Page 3 of 8 (2) The applicant has been convicted within the past five years of any violation of a federal, state or local law, ordinance provision, or other regulation relating to tobacco or tobacco products, or tobacco related devices, or any felony within the last ten years. (3) The applicant has had a license to sell tobacco, tobacco products or tobacco related devices revoked within the preceding 12 months of the date of application. (4) The applicant fails to provide any information required on the application, or provides false or misleading information. (5) The applicant is prohibited by federal,state or other local law, ordinance or other regulation, from holding such a license. (6) The location proposed is or has been maintained as a public nuisance, place of unlawful assembly, disrepute or criminal activity. Subd. 6. Prohibited sales. It shall be a violation of this section for any person to sell or offer to sell any tobacco, tobacco product or tobacco related device: (1) To any person under the age of 21 years. (2) By means of any type of vending machine, except as may otherwise be provided in this section. (3) By means of self-service methods whereby the customer does not need to make a verbal or written request to an employee of the licensed premise in order to receive the tobacco, tobacco product, or tobacco related device and whereby there is not a physical exchange of the tobacco, tobacco product or tobacco related device between the licensee or the licensee's employee, and the customer. (4) By means of loosies as defined in Subd. 2 of this section. (5) Containing opium, morphine, jimson weed, bella donna, strychnos, cocaine, marijuana, or other deleterious, hallucinogenic, toxic, or controlled substances except nicotine and other substances found naturally in tobacco or added as part of an otherwise lawful manufacturing process. (6) By any other means,to any other person, or in any other manner or form prohibited by federal, state, or other local law, ordinance provision or other regulation. Page 4 of 8 Subd. 7. Vending machines. It is unlawful for any person licensed under this section to allow the sale of tobacco, tobacco products or tobacco related devices by the means of a vending machine unless persons under the age of 18 are at all times prohibited from entering the licensed establishment. Subd. 8. Self-service sales. It is unlawful for a licensee under this section to allow the sale of tobacco, tobacco products or tobacco related devices by any means where by the customer may have access to the items without having to request the item from the licensee or the licensee's employee and there is not a physical exchange of the tobacco, tobacco product or the tobacco related device between the licensee, clerk and the customer. All tobacco, tobacco products, and tobacco related devices must either be stored behind a counter or other area not freely accessible to customers, or in a case or other storage unit not left open and accessible to the general public. Subd. 9. Responsibility. All licensees under this section are 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 an item by an employee is considered a sale by the license holder. Nothing in this section may be construed as prohibiting the city from also subjecting the clerk to whatever penalties are appropriate under this section, state or federal law, or other applicable law or regulation. Subd. 10. Compliance checks and inspections. All licensed premises must be open to inspection by the local law enforcement or other authorized city official during regular business hours. From time to time, but at least once per year, the city must conduct compliance checks by engaging persons between the ages of 18 and 21 years, to enter the licensed premise to attempt to purchase tobacco, tobacco products, or tobacco related devices. Persons used for the purpose of compliance checks must be supervised by designated law enforcement officers or other designated city personnel. Persons used for compliance checks are not guilty of the unlawful purchase or attempted purchase, nor the unlawful possession of tobacco, tobacco products, or tobacco related devices when the items are obtained or attempted to be obtained as a part of the compliance check. No person used in compliance checks may attempt to use a false identification misrepresenting the person's age, and all persons lawfully engaged in a compliance check may answer all questions about the person's age asked by the licensee or his or her employee and shall produce any identification,if any exists, for which he or she is asked. Nothing in this section prohibits 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. Subd. 11. Other illegal acts. Unless otherwise provided, the following acts shall be a violation of this section: Page 5 of 8 (1) Illegal sales. It is a violation of this section for any person to sell or otherwise provide any tobacco, tobacco product or tobacco related device to any person under the age of 21. (2) Illegal possession. It is a violation of this section for any person under the age of 21 to have in his or her possession any tobacco, tobacco product or tobacco related device. This subdivision shall not apply to persons lawfully involved in a compliance check. (3) Illegal use. It is a violation of this section for any person under the age of 21to smoke, chew, sniff or otherwise use any tobacco, tobacco product, or tobacco related device. (4) Illegal procurement. It is a violation of this section for any person under the age of 21 to purchase or attempt to purchase or otherwise obtain any tobacco, tobacco product or tobacco related device, and it is a violation of this section for any person to purchase or otherwise obtain tobacco items on behalf of a person under the age of 21. It is further a violation for any person to coerce or attempt to coerce a person under the age of 21 to illegally purchase or otherwise obtain or use any tobacco, tobacco product or tobacco related device. This subdivision does not apply to a person lawfully involved in a compliance check. (5) Use of false identification. It is a violation of this section for any person under the age of 21 to attempt to disguise his or her true age by the use of a false form of identification, whether the identification is that of another person or one on which the age of the person has been modified or tampered with to represent an age older than the actual age of the person. (6) Location. The location proposed is or has been maintained as a public nuisance, place of unlawful assembly, disrepute, or criminal activity. (7) Obstructing compliance check. It is a violation of this section for any applicant or their employees to warn or notify another license holder in advance of the compliance check. Subd. 12. Violations. (1) Notice. Upon discovery of a suspected violation,the alleged violator must be issued, either personally or by mail, a citation that sets forth the alleged violation and which informs the alleged violator of his or her right to be heard on the accusation. Page 6 of 8 (2) Hearings. If a person accused of violating this section so requests, a hearing must be scheduled, the time and place of which shall be published and provided to the accused violator. (3) Hearing officer. The city council may serve as a hearing officer or appoint a hearing officer as they see fit. (4) Decision. If the hearing officer determines that a violation of this section did occur, that decision, along with the hearing officer's reasons for finding a violation and the penalty to be imposed under Subd. 13 of this section, must be recorded in writing, a copy of which must be provided to the accused violator. Likewise, if the hearing officer finds that no violation occurred or finds grounds for not imposing any penalty, the findings must be recorded and a copy provided to the acquitted accused violator. (5) Appeals.Appeals of any decision made by the hearing officer must be filed in the district court for the jurisdiction of the city in which the alleged violation occurred. (6) Misdemeanor prosecution. Nothing in this subdivision will prohibit the city from seeking prosecution as a misdemeanor for any alleged violation of this section. If the city elects to seek misdemeanor prosecution, no administrative penalty may be imposed. (7) Continued violation. Each violation, and every day in which a violation occurs or continues, constitutes a separate offense. Subd. 13. Penalties. (1) Licensees. Any licensee found to have violated this section, or whose employee violates this section, must be charged an administrative fine of $75.00 for a first violation of this section; $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 must be revoked. Funds received by the city as administrative fines must be kept in a separate fund to offset expenses associated with the tobacco enforcement program except that no part of these funds may be used to pay expenses associated with an administrative hearing officer. (2) Immediate revocation. In the event of a felony committed by the licensee, occurring on the licensed premises, the city council is authorized to immediately proceed to a license revocation and need not employ a hearing officer and need not proceed under subsection (1) of this subdivision. Page 7 of 8 (3) Other individuals. Other individuals, other than persons under the age of 21 regulated by subsection(4) of this subdivision,found to be in violation of this section will be charged an administrative fee of$50.00. (4) Persons under the age of 21. Persons under the age of 21 found in unlawful possession of, or who unlawfully purchase or attempt to purchase tobacco, tobacco products or tobacco related devices will be ordered to perform community work service and undergo assessment and counseling by the Youth Service Bureau of Washington County. SECTION 2. SUMMARY PUBLICATION. Pursuant to Minnesota Statutes Section 412.191, in the case of a lengthy ordinance, a summary may be published. While a copy of the entire ordinance is available without cost at the office of the City Clerk, the following summary is approved by the City Council and shall be published in lieu of publishing the entire ordinance: This amendment is in accordance with the Federal Food, Drug and Cosmetic act, raising the minimum age of the sale of any tobacco product, including cigarettes, cigars and e-cigarette products from 18 to 21 years. SECTION 3. EFFECTIVE DATE. This Ordinance shall be in full force and effect from and after its passage and publication according to law. Passed this 7th day of April, 2020. CITY OF STILLWATER Ted Ko ows , ay ATTEST: Beth Wolf, City Cler Page 8 of 8 AFFIDAVIT OF PUBLICATION CITY OF STILLWATER ORDINANCE 1143 STATE OF MINNESOTA )ss AN ORDINANCE AMENDING STILLWATER COUNTY OF WASHINGTON CITY CODE SECTION 41-2-LICENSING OF TOBACCO SALES;POSSESSION AND USE The City Council of the City of Stillwater does ordain: This amendment Diane Erickson being duly sworn on an oath, is in accordance with the Federal Food, Drug and Cosmetic act, raising states or affirms that he/she is the Publisher's the minimum age of the sale of any tobacco product,including cigarettes, Designated Agent of the newspaper(s)known cigars and e-cigarette products from 18 to 21 years. Approved this 7th day of April,2020.Do not hesitate to contact the City as: Clerk's Office(651)430-8802 if you have any questions or need further information. Stillwater Gazette Signed:Beth Wolf City Clerk Published in the with the known office of issue being located Stillwater Gazette in the county of: April 10,2020 WASHINGTON 1036712 with additional circulation in the counties of: WASHINGTON and has full knowledge of the facts stated below: (A)The newspaper has complied with all of the requirements constituting qualifica- tion as a qualified newspaper as provided by Minn. Stat.§331A.02. (B)This Public Notice was printed and pub- lished in said newspaper(s) once each week, for 1 successive week(s); the first insertion being on 04/10/2020 and the last insertion being on 04/10/2020. MORTGAGE FORECLOSURE NOTICES Pursuant to Minnesota Stat. §580.033 relating to the publication of mortgage foreclosure notices: The newspaper complies with the conditions described in §580.033, subd. 1, clause (1) or(2). If the newspaper's known office of issue is located in a county adjoining the county where the mortgaged premises or some part of the mortgaged premises described in the notice are located, a substantial portion of the newspaper's circulation is in the latter county. s By: A\t,,k Designated Agent Subscribed and sworn to or affirmed before me on 04/10/2020 by Diane Erickson. Dcv-u-r—( k' Notary Public `• ,,DARLENE MARIE MACPHERSON Notary Public Wit = Minnesota • :)w;,; My Commission Eqires January 31,2024 Rate Information: (1)Lowest classified rate paid by commercial users for comparable space: $40.00 per column inch Ad ID 1036712