6.34 - Tobacco § 6.34
Section 6.34: Tobacco
Subdivision 1. Purpose and Intent
Because the City recognizes that many persons under the age of eighteen (18)
years purchase or otherwise obtain, possess and use tobacco, tobacco products,
tobacco-related devices, and nicotine or lobelia delivery devices, and the sales,
possession, and use are violations of both state and federal laws; and because
studies, which the City hereby accepts and adopts, have shown that most smokers
begin smoking before they have reached the age of eighteen (18) years and that
those persons who reach the age of eighteen (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 ordinance shall be
intended to regulate the sale, possession and use of tobacco, tobacco products,
tobacco-related devices, and nicotine or lobelia delivery devices for the purpose of
enforcing and furthering existing laws, to protect minors against the serious effects
associated with the illegal use of tobacco, tobacco products, tobacco-related
devices, and nicotine or lobelia delivery devices, and to further the official public
policy of the state in regard to preventing young people from starting to smoke as
stated in Minnesota Statutes § 144.391, as it may be amended from time to time.
In making these findings, the City Council accepts the conclusions and
recommendations of Center for Disease Control in their study "Selected Cigarette
Smoking Initiation and Quitting Behaviors Among High School Students, United
States, 1997," and of the following medical professionals in these medical journals:
Khuder SA, et al., "Age at Smoking Onset and its Effect on Smoking Cessation,"
Addictive Behavior 24(5):673-7, September-October 1999; D'Avanzo B, et al., "Age
at Starting Smoking and Number of Cigarettes Smoked,"Annals of Epidemiology
4(6):455-59, November 1994; Chen, 3 & Millar, W3, "Age of Smoking Initiation:
Implications for Quitting," Health Reports 9(4):39-46, Spring 1998; Everett SA, et
al., "Initiation of Cigarette Smoking and Subsequent Smoking Behavior Among U.S.
High School Students," Preventive Medicine, 29(5):327-33, November 1999, copies
of which are adopted by reference.
Subdivision 2. Definitions
Except as may otherwise be provided or clearly implied by context, all terms shall
be given their commonly accepted definitions. For the purpose of this Section, the
following definitions shall apply unless the context clearly indicates or requires a
different meaning.
A. Compliance Checks: The system the City uses to investigate and ensure
that those authorized to sell tobacco, tobacco products, tobacco-related
devices, and nicotine or lobelia delivery devices are following and complying
with the requirements of this ordinance. Compliance Checks shall involve the
use of minors as authorized by this ordinance. Compliance Checks shall also
mean the use of minors who attempt to purchase tobacco, tobacco products,
tobacco-related devices, or nicotine or lobelia delivery devices for
educational, research and training purposes as authorized by state and
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§ 6.34
federal laws. Compliance Checks may also be conducted by other units of
government for the purpose of enforcing appropriate federal, state or local
laws and regulations relating to tobacco, tobacco products, tobacco-related
devices, and nicotine or lobelia delivery devices.
B. Individually Packaged: 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
definition shall not be considered individually packaged.
C. Indoor Area: All space between a floor and a ceiling that is bounded by
walls, doorways, or windows, whether open or closed, covering more than
fifty percent (50%) of the combined surface area of the vertical planes
constituting the perimeter of the area. A wall includes any retractable divider,
garage door, or other physical barrier, whether temporary or permanent.
D. Loosies: The common term used to refer to 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 taxes, of more than two
dollars ($2.00) per cigar.
E. Minor: Any natural person who has not yet reached the age of eighteen (18)
years.
F. Moveable Place of Business: 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.
G. Nicotine or Lobelia Delivery Devices: Any product containing or delivering
nicotine or lobelia intended for human consumption, or any part of such a
product, that is not tobacco as defined in this Section, not including any
product that has been approved or otherwise certified for legal sale by the
United States Food and Drug Administration for tobacco use cessation, harm
reduction, or for other medical purposes, and is being marketed and sold
solely for that approved purpose.
H. Retail Establishment: Any place of business where tobacco, tobacco
products, tobacco-related devices, or nicotine or lobelia delivery devices are
available for sale to the general public. The phrase shall include but not be
limited to grocery stores, convenience stores, restaurants, and drug stores.
I. Sale: Any transfer of goods for money, trade, barter or other consideration.
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§ 6.34
3. Self-Service Merchandising: Open displays of tobacco, tobacco products,
tobacco-related devices, or nicotine or lobelia delivery devices in any manner
where any person shall have access to the tobacco, tobacco products,
tobacco-related devices, or nicotine or lobelia delivery devices, without the
assistance or intervention of the licensee or the licensee's employee. The
assistance or intervention shall entail the actual physical exchange of the
tobacco, tobacco product, tobacco-related device, or nicotine or lobelia
delivery device between the customer and the licensee or employee. Self-
service sales are interpreted as being any sale where there is not an actual
physical exchange of the product between the clerk and the customer.
Source: Ordinance No. 462, 2nd Series
Effective Date: 7-30-11
K. Smoking: Inhaling or exhaling smoke from any lighted or heated cigar,
cigarette, pipe, or any other lighted or heated tobacco or plant product.
Smoking also includes carrying a lighted or heated cigar, cigarette, pipe, or
any other lighted or heated tobacco or plant product intended for inhalation.
For the purpose of this Section, the definition of smoking includes the use of
electronic cigarettes, including the inhaling and exhaling of vapor from any
electronic delivery device as defined in Minnesota State Statute 609.685,
Subd. 1.
L. Tobacco or Tobacco Products: Tobacco and tobacco products includes
cigarettes, e-cigarettes and any product containing, made, or derived from
tobacco that is intended for human consumption, whether chewed, smoked,
absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other
means, or any component, part, or accessory of a tobacco product; cigars;
cheroots; stogies; perique; granulated, plug cut, crimp cut, ready rubbed,
and other smoking tobacco; snuff; snuff flour; cavendish; plug and twist
tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps,
clippings, cuttings and sweepings of tobacco; and other kinds and forms of
tobacco. Tobacco excludes any tobacco product that has been approved by
the United States Food and Drug Administration for sale as a tobacco
cessation product, as a tobacco dependence product, or for other medical
purposes, and is being marketed and sold solely for such an approved
purpose.
M. Tobacco-Related Devices: Tobacco-related devices includes any tobacco
product as well as a pipe, e-cigarette, rolling papers, ashtray, 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.
Source: Ordinance No. 554, 2nd Series
Effective Date: 5-14-15
N. Vending Machine: 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.
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§ 6.34
Subdivision 3. License
A. License Required. No person shall sell or offer to sell any tobacco, tobacco
products, tobacco-related device, or nicotine or lobelia delivery device
without first having obtained a license to do so from the City.
B. Application. An application for a license to sell tobacco, tobacco products,
tobacco-related devices, or nicotine or lobelia delivery devices 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 for which the license is sought,
and any additional information the City deems necessary. Upon receipt of a
completed application, the City Clerk shall forward the application to the City
Council for action at its next regularly scheduled City Council meeting. If the
City Clerk shall determine that an application is incomplete, he or she shall
return the application to the applicant with notice of the information
necessary to make the application complete.
C. Action. The City Council may either approve or deny the license, or it may
delay action for a reasonable period of time as necessary to complete any
investigation of the application 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 City Council's decision.
D. Term. All licenses issued under this Section shall be valid for one (1)
calendar year from the date of issue.
E. Revocation or Suspension. Any license issued under this Section may be
revoked or suspended as provided in Subdivision 13.
F. Transfers. All licenses issued under this Section 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 without the prior approval of the City Council.
G. Moveable Place of Business. No license shall be issued to a moveable
place of business. Only fixed location businesses shall be eligible to be
licensed under this Section.
H. Display. All licenses shall be posted and displayed in plain view of the
general public on the licensed premise.
I. Renewals. The renewal of a license issued under this Section shall be
handled in the same manner as the original application. The request for a
renewal shall be made at least thirty (30) days but no more than sixty (60)
days before the expiration of the current license.
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§ 6.34
3. Issuance as Privilege and Not a Right. The issuance of a license issued
under this Section 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.
K. Smoking. Smoking shall not be permitted and no person shall smoke within
the indoor area of any establishment with a retail tobacco license. Smoking
for the purposes of sampling tobacco and tobacco related products is
prohibited.
Subdivision 4. Fees
No license shall be issued under this Section until the appropriate license fee shall
be paid in full. The fee for a license under this Section shall be established by the
City Council and adopted by ordinance, and may be amended from time to time.
Subdivision 5. Basis for Denial of License
A. Grounds for denying the issuance or renewal of a license under this Section
include but are not limited to the following:
1. The applicant is under the age of eighteen (18) years.
2. The applicant has been convicted within the past five (5) years of any
violation of a federal, state, or local law, ordinance provision, or other
regulation relating to tobacco, tobacco products, tobacco-related devices,
or nicotine or lobelia delivery devices.
3. The applicant has had a license to sell tobacco, tobacco products,
tobacco-related devices, or nicotine or lobelia delivery devices revoked
within the preceding twelve (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 a license.
B. 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.
C. 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.
Subdivision 6. Prohibited Sales
It shall be a violation of this Section for any person to sell or offer to sell any
tobacco, tobacco product, tobacco-related device, or nicotine or lobelia delivery
device:
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A. To any person under the age of eighteen (18) years.
B. By means of any type of Vending Machine.
C. 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, tobacco-related device, or
nicotine or lobelia delivery device and whereby there is not a physical
exchange of the tobacco, tobacco product, tobacco-related device, or nicotine
or lobelia delivery device between the licensee, or the licensee's employee,
and the customer.
D. By means of Loosies as defined in Subdivision 2.
E. 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. It is not the intention of
this provision to ban the sale of lawfully manufactured cigarettes or other
tobacco products.
F. By any other means, to any other person, on in any other manner or form
prohibited by federal, state or other local law, ordinance provision, or other
regulation.
Subdivision 7. Self-Service Sales
It shall be unlawful for a licensee under this Section to allow the sale of tobacco,
tobacco products, tobacco-related devices, or nicotine or lobelia delivery devices by
any means where by the customer may have access to those 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 tobacco, tobacco product, tobacco-related device,
or nicotine or lobelia delivery device between the licensee or his or her clerk and
the customer. All tobacco, tobacco products, tobacco-related devices, and nicotine
or lobelia delivery devices shall 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. Any retailer selling tobacco, tobacco products,
tobacco-related devices, or nicotine or lobelia delivery devices at the time this
Section is adopted shall comply with this Section within ninety (90) days following
the effective date of this Section.
Subdivision 8. Responsibility
All licensees under this Section shall be responsible for the actions of their
employees in regard to the sale of tobacco, tobacco products, tobacco-related
devices, or nicotine or lobelia delivery devices on the licensed premises, and the
sale of 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 Section, state
or federal law, or other applicable law or regulation.
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Subdivision 9. Compliance Checks and Inspections
All licensed premises shall be open to inspection by the city police or other
authorized city 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 the age of fifteen (15)
years but less than eighteen (18) years to enter the licensed premise to attempt to
purchase tobacco, tobacco products, tobacco-related devices, or nicotine or lobelia
delivery devices. Minors used for the purpose of compliance checks shall be
supervised by city designated law enforcement officers or other designated city
personnel. Minors used for compliance checks shall not be guilty of unlawful
possession of tobacco, tobacco products, tobacco-related devices, or nicotine or
lobelia delivery devices when those items are obtained as a part of the compliance
check. 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 or her employee and shall produce any identification, if any exists,
for which he or she is asked. 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.
Subdivision 10. Other Illegal Acts
Unless otherwise provided, the following acts shall be a violation of this Section:
A. Illegal Sales. It shall be a violation of this Section for any person to sell or
otherwise provide any tobacco, tobacco product, tobacco-related device, or
nicotine or lobelia delivery device to any minor.
B. Illegal Possession. It shall be a violation of this Section for any minor to have
in his or her possession any tobacco, tobacco product, tobacco-related
device, or nicotine or lobelia delivery device. This paragraph (B) shall not
apply to minors lawfully involved in a compliance check.
C. Illegal Use. It shall be a violation of this Section for any minor to smoke,
chew, sniff or otherwise use any tobacco, tobacco product, tobacco-related
device, or nicotine or lobelia delivery device
D. Illegal Procurement. It shall be a violation of this Section for any minor to
purchase or attempt to purchase or otherwise obtain any tobacco, tobacco
product, tobacco-related device, or nicotine or lobelia delivery device, and it
shall be a violation of this Section for any person to purchase or otherwise
obtain those 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, tobacco-related
device, or nicotine or lobelia delivery device. This paragraph (D) shall not
apply to minors lawfully involved in a compliance check.
E. Use of False Identification. It shall be a violation of this Section for any minor
to attempt to disguise his or her true age by the use of a false form of
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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.
Subdivision 11. Exceptions and Defenses
Nothing in this Section shall prevent the providing of tobacco, tobacco products,
tobacco-related devices, or nicotine or lobelia delivery 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.
Subdivision 12. Severability
If any Section or provision of this ordinance is held invalid, such invalidity shall not
affect other Sections or provisions which can be given force and effect without the
invalidated Section or provision.
Subdivision 13. Violations and Penalty
A. Administrative Civil Penalties: Individuals. If a person who is not a
licensee is found to have violated this Section the person shall be charged an
administrative penalty as follows:
1. First violation. The Council shall impose a civil fine not to exceed fifty
dollars ($50).
2. Second violation within twelve (12) months. The Council shall impose a
civil fine not to exceed one hundred dollars ($100).
3. Third violation within twelve (12) months. The Council shall impose a civil
fine not to exceed one hundred fifty dollars ($150).
Source: Ordinance No. 462, 2nd Series
Effective Date: 7-30-11
B. Administrative Civil Penalties: Licensee. If a licensee or an employee of
a licensee is found to have violated this Section the licensee shall be charged
an administrative penalty as follows:
1. First violation. The Council shall impose a civil fine of five hundred dollars
($500) and suspend the license for not less than five (5) consecutive
days.
2. Second violation within twenty-four (24) months. The Council shall
impose a civil fine of seven hundred fifty dollars ($750) and suspend the
license for not less than fifteen (15) consecutive days.
3. Third violation within twenty-four (24) months. The Council shall impose a
civil fine of one thousand-dollars ($1,000) and suspend the license for not
less than thirty (30) consecutive days.
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4. Fourth violation within twenty-four (24) months. The Council shall revoke
the license for at least one (1) year.
Source: Ordinance No. 474, 2nd Series
Effective Date: 12-16-11
C. Administrative Penalty Procedures. Notwithstanding anything to the
contrary in this Subdisivision 13:
1. Any of the administrative civil penalties set forth in this Subdivision 13
that may be imposed by the Council, may in the alternative be imposed
by an administrative citation under City Code, Section 2.90.
2. If one (1) of the foregoing penalities is imposed by an action of the
Council, no penalty shall take effect until the licensee or person has
received notice (served personally or by mail) of the alleged violation and
of the opportunity for a hearing before the, and such notice must be in
writing and must provide that a right to a hearing before the Council must
be requested within ten (10) business days of receipt of the notice or such
right shall terminate.
Source: Ordinance No. 565, 2nd Series
Effective Date: 7-31-15
D. Misdemeanor Prosecution. Nothing in this Subdivision shall prohibit the
City from seeking prosecution as a misdemeanor for any alleged violation of
this ordinance.
E. Defense. It is a defense to the charge of selling tobacco or tobacco-related
devices to a person under the age of eighteen (18) years, that the licensee
or individual, in making the sale, reasonably and in good faith relied upon
representation of proof of age described in Minnesota Statutes section
340A.503.
F. Exceptions. An Indian may furnish tobacco to an Indian under the age of
eighteen (18) years if the tobacco is furnished as part of a traditional Indian
spiritual or cultural ceremony. For purposes of this paragraph an Indian is a
person who is a member of an Indian tribe as defined in Minnesota Statutes
section 260.755, subd. 12.
Subdivision 14. Violation a Misdemeanor
Every person who violates a section, subdivision, paragraph or provision of this
Section, when such person performs an act thereby prohibited or declared unlawful,
or fails to act when such failure is thereby prohibited or declared unlawful, and
upon conviction thereof, shall be punished as for a misdemeanor or gross
misdemeanor and may also be subject to administrative penalties as otherwise
stated in specific provisions hereof.
Source: Ordinance No. 462, 2nd Series
Effective Date: 7-30-11
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