HomeMy WebLinkAboutOrdinance No. 1997-17 Regulating Sale & Use of Tobacco ProductsEdina Ordinance No. 1997 - 17
AN ORDINANCE REPEALING SECTION 1325 OF THE CITY CODE AND
REPLACING IT WITH A NEW SECTION 1326 FOR THE PURPOSE OF
REGULATING THE SALE AND USE OF TOBACCO PRODUCTS
The City Council of the City of Edina Ordains:
Section 1. Section 1325 of the City Code is repealed in its entirety.
Section 2. The City Code is amended by adding a new Section 1326 as follows:
Section 1326 - Sale of Tobacco; Licensing
1326.01 Definitions. Unless the context clearly indicates otherwise, the following terms have
the meanings given them in this Subsection:
Tobacco or Tobacco Related Product shall mean 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, cutting 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 Device shall mean 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 related products.
Self-Service Merchandising shall mean the open displays of tobacco or tobacco related
products, or tobacco related devices in any manner where any person shall have access
to the tobacco or tobacco related products, or tobacco related devices, without the
assistance or intervention of the licensee or the licensee's employee.
Moveable Place of Business shall mean 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.
Minor shall mean any natural person who has not yet reached the age of eighteen (18)
years.
Retail Sale shall mean any transfer of goods for money, trade, barter, or other
consideration.
Vending Machine shall mean any mechanical, electric or electronic, or other type of
device which dispenses tobacco or tobacco related 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 or tobacco related product, or
tobacco related devices.
Compliance Checks shall mean the system the City of Edina uses to investigate and
ensure that those authorized to sell tobacco or tobacco related products, and tobacco
related devices are following and complying with the requirements of this Section.
Compliance Checks shall also mean the use of minors who attempt to purchase tobacco
or tobacco related products, or tobacco related devices for education, 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 or tobacco related
products, and tobacco related devices.
1326.02 License Required. No person shall keep tobacco or tobacco related products, or
tobacco related devices for retail sale or sell tobacco or tobacco related products, or tobacco
related devices at retail in the City without first obtaining a license from the City. No license
shall be issued for the sale of tobacco or tobacco related products, or tobacco related devices at
a movable place of business or from a vending machine.
1326.03 License Procedure. The provisions of Section 160 of this Code shall apply to all
licenses required by this Section and to the holders of such licenses, except that licenses shall
be issued or denied by the Sanitarian. The applications for a license shall be on forms provided
by the Sanitarian and shall be accompanied by the fee set forth in Section 185 of this Code.
1326.04 Term of License. Each license issued pursuant to this Section shall expire on March
31 of each calendar year.
1326.05 Rules and Regulations.
Subd. 1. Legal Age. No person shall sell any tobacco or tobacco related product, or
tobacco related device to any minor.
Subd. 2. Controlled Substances. No person shall sell or keep for sale any tobacco
containing any controlled substance as defined in Section 1030 of this Code, except
nicotine or tobacco.
Subd. 3. Vending Machine and Moveable Place of Business. No person shall sell any
tobacco or tobacco related product, or tobacco related device from a vending machine
or from a moveable place of business.
Subd. 4. Self-Service Merchandising. No person shall sell any tobacco or tobacco
related product, or tobacco related device by means whereby the customer may have
access to such items without having to request assistance from an employee of the
licensed premises. The assistance or intervention shall entail the actual physical
exchange of the tobacco or tobacco related product or tobacco related device between
the customer and the licensee or employee. All tobacco or tobacco related products, or
tobacco devices shall be stored or displayed behind a sales counter or in other rooms or
display areas which are not freely accessible to customers. Provided however, the
requirements of this Subd. 4 shall not apply to establishments which, i) prohibit minors
from entering the establishment unless accompanied by a parent or legal guardian, ii)
post notice advising of the prohibition is conspicuously displayed at all entrances to the
establishment and, iii) either derive at least ninety percent (90%) of their revenues from
the sale of tobacco and tobacco related products or limit self service merchandising to
cigars and cigar related products.
Subd.5. Illegal Possession. No minor shall have in his or her possession any tobacco
or tobacco related product, or tobacco related device. This subdivision shall not apply
to minors lawfully involved in compliance checks.
Subd. 6. Illegal Use. No minor shall smoke, chew, sniff, or otherwise use any tobacco
or tobacco related product, or tobacco related device.
Subd. 7. Illegal Procurement. No minor shall purchase or attempt to purchase or
otherwise obtain any tobacco or tobacco related product, or tobacco related device, and
no person shall purchase or otherwise obtain such items on behalf of a minor. No
person shall coerce or attempt to coerce a minor to illegally purchase or otherwise
obtain or use any tobacco or tobacco related product, or tobacco related device. This
subdivision shall not apply to minors lawfully involved in compliance checks.
Subd. 8. Use of False Identification. No minor shall 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.
1326.06 Compliance Checks and Inspections. All licensed premises shall be open to
inspection by the City or other authorized official during regular business hours. From time to
time, but at least once per year, the City shall conduct compliance checks by engaging, with
the written consent of their parents or guardians, minors over fifteen (15) years but less than
eighteen (18) years, to enter the licensed premises to attempt to purchase tobacco or tobacco
related products, or tobacco related devices. Minors used for the purpose of compliance
checks shall be supervised by designated law enforcement officers or other designated City
personnel. Minors used for compliance checks shall not be guilty of the unlawful purchase or
attempted purchase, nor unlawful possession of tobacco or tobacco related products, or
tobacco related devices when such items are obtained or attempted to be obtained as a part of
the compliance check. No minor used in the 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 for which he or she is
asked. Nothing in this Subsection 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.
1326.07 Violations. The following notification and hearing process will apply to violations of
this Section.
Subd. 1. Notice. Upon discovery of a suspected violation, the alleged violator shall be
issued, either personally or by mail, a citation that sets forth the alleged violations and
which shall inform the alleged violator of his or her rights to be heard on the
accusation.
Subd. 2. Hearings. If a person accused of violating this Section so requests, a hearing
shall be scheduled, the time and place of which shall be published and provided to the
accused violator.
Subd. 3. Hearing Officer. The City Council shall serve as the hearing officer until
such time a hearing officer is appointed by the City Council.
Subd. 4. Decision. If the hearing determines that a violation of this Section did occur,
that decision along with the reasons for finding a violation and the penalty to be
imposed under Subsection 1326.08 of this Section, shall be recorded in writing, a copy
of which shall be provided to the accused violator. Likewise, if the hearing finds that
no violation occurred or finds grounds for not imposing any penalty, such findings
shall be recorded and a copy provided to the acquitted accused violator.
Subd. 5. Appeals. Appeals of any decision made by the Hearing Officer shall be filed
in Hennepin County district court.
Subd. 6. Misdemeanor Prosecution. Nothing in the Section shall prohibit the City
from seeking prosecution as a misdemeanor for any alleged violation of this Section. If
the City elects to seek misdemeanor prosecution, an administrative penalty may also be
imposed.
Subd. 7. Continued Violation. Each violation, and every day in which a violation
occurs or continues, shall constitute a separate offense.
1326.08 Penalties. The following administrative penalties will be applied as set forth below.
Subd. 1. Licensees. Any licensee found to have violated this Section, or whose
employee shall have violate this Section, shall be charged an administrative fine of
$75.00 for the first violation of this Section; $200.00 for the second offense at the same
licensed premises within a twenty-four month period; $400.00 for a third offense at the
same location within a twenty-four month period and the license shall be suspended for
not less than seven days; and $500.00 for a fourth offense at the same location within a
twenty-four month period. In addition, after the fourth offense, the license shall be
revoked.
Subd. 2. Other Individuals. Other individuals, other than minors regulated by
Subdivision 3 of this Subsection, found to be in violation of this Section shall be
charged an administrative fee of $50.00.
Subd. 3. Minors. Minors who use or are found in unlawful possession of, or who
unlawfully purchase or attempt to purchase, tobacco or tobacco related products, or
tobacco related devices, shall be charged an administrative fee of $75.00 per offense or
a minimum fee of $25.00 and satisfactory completion of a diversion program
acceptable to the City.
Subd. 4. Misdemeanor. Nothing in this Section shall prohibit the City from seeking
prosecution as a misdemeanor for any violation of this Section.
1326.09 Exceptions and Defenses. Nothing in this Section shall prevent the providing of
tobacco or tobacco related 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 the
violation of this Section for a person to have reasonably relied on proof of age as described by
State law.
Section 3. Effective Date. This ordinance shall become effective immediately upon its
passage and publication.
Adopted this lstday of December 1997.
First Reading: November 17, 1997
Second Reading: December 1, 1997
Published: Edina Sun Current, December 10, 1997
Attest: &Lutz
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City Clerk Mayor