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HomeMy WebLinkAboutNo 920 Relating to Regulation of Tobacco Sales, Repealing Chapter 14, Article XVIII of the Maplewood City Code ORDINANCE NO. 920 CITY OF MAPLEWOOD AN ORDINANCE RELATING TO REGULATION OF TOBACCO SALES, REPEALING CHAPTER 14, ARTICLE XVIII OF THE MAPLEWOOD CITY CODE The City Council of the City of Maplewood hereby ordains: Section 1. RECITALS. The Minnesota Legislature has enacted the Minnesota Clean Indoor Air Act (Minnesota Statutes, Sections 144.411 to 144.417), the purpose of which is to protect employees and the general public from the hazards of secondhand smoke by eliminating smoking in public places, places ofemployment, public transportation and at public meetings, and nothing in the Minnesota Clean Air Act prohibits the City from enacting and enforcing more stringent measures to protect individuals from secondhand smoke. Pursuant to this authority and for the purpose of protecting individuals from the hazards of secondhand smoke the City has determined that it is in the best interest of the public to prohibit the lighting of tobacco in a retail establishment by a customer or potential customer for the purpose of sampling tobacco products. Section 2. PURPOSE. The City recognizes the public health hazards of exposure of individuals to secondhand smoke. This article is intended to regulate the sale, possession, and use of tobacco, tobacco products, and tobaccorelated 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, and tobacco related devices, to protect individuals from the hazards of secondhand smoke, and to further the official public policy of the State of Minnesota as stated in M.S. §144.391 and M.S.§144.412, as they may be amended from time to time. Section 3. 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 chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. 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 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. 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 shallnot be considered individually packaged. 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 50 percent 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. 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 $2.00 per cigar. MINOR. Any natural person who has not yet reached the age of 18 years. 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. 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. 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. SALE. Any transfer of goods for money, trade, barter or other consideration. 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. 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. TOBACCO or TOBACCO PRODUCTS. Tobacco and tobacco products includes 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. TOBACCO-RELATED DEVICES. Tobacco-related devices includes any tobacco product as well as a pipe, 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. 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. Section 4. LICENSE REQUIRED. (A)Generally. No person may directly or indirectly or by means of any device keep for retail sale, sell at retail, offer to sell or otherwise dispose of any tobacco, tobacco products, or tobacco related devices, or nicotine or lobelia delivery device at any place in the City unless a license has first been issued by the City as provided in this section. (B)Specifically. (1)Application. An application for a license to sell tobacco, tobacco products, and tobacco related 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. (2)Action. Upon receipt of a completed application, the city clerk shall forward the applicationto the police department for investigation. The police department shall conduct an investigation of the applicant and application regarding the fitness of the applicant to hold a license pursuant to the standards set forth in this article, and report theresults of its investigation to the city clerk within 30 days of receipt of the application. After the City finishes its investigation, and reviews the finding, the application will be approved or denied by the City Manager or his designee. If the application is approved it will be issued by the City Clerk, if the City Manager or his designee denies the application, notice of the denial shall be given to the applicant along with notification of the applicant’s right to appeal the decision. (3)Fees. No license shall be issued under this ordinance until the appropriate license or investigation fee is paid in full. The fee(s) shall be established by the city council by resolution from time to time. (4)Sanctions for violation. Shall be set by the citycouncil at penalty phase not to be less than State mandated guidelines. (5)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. (6)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 subchapter. (7)Display. All licenses shall be posted and displayed in plain view of the general public on the licensed premises. (8)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 30 days prior, but no more than 60 days before the expiration of the current license. The license holder is not entitled to an automatic renewal of the license. Section 5. BASIS FOR DENIAL OF LICENSE. The following shall be grounds for denying the issuance of or renewal of a license under this subchapter; 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. (A)The applicant is under the age of 18 years of age; (B)The applicant has been convicted within the past 5 years of any violation of a federal, state, or local law, ordinance provision, or other regulation relating to tobacco products, or tobacco related devices. (C)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. (D)The applicant fails to provide any information required on the application, or provides false or misleading information. (E)The applicant is prohibited by federal, state, or other local law, ordinance, or other regulation, from holding such a license. (F)Nonpayment by the property owner and/or applicant of any fees or charges owed to the City and/or county, including but not limited to utilities and property taxes. (G)If alicense 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 chapter. Section 6. PROHIBITED SALES. It shall be a violation of this subchapter for any person to sell or offer to sell any tobacco, tobacco product, or tobacco related device: (A)To a minor; (B)By a vending machine; (C)By self-service; (D)As loosies; (E)If the tobacco or tobacco products contain opium, morphine, jimsonweed, belladonna, strychnos, cocaine, marijuana, orother delirious, hallucinogenic, toxic, or controlled substances except nicotine and other substances found naturally in tobacco or added as part of an otherwise lawful manufacturing process; and/or (F)To any other person, in any other manner or form prohibited by federal or state law or regulation, or by local ordinance. Section 7. SMOKING PROHIBITED. It shall be unlawful for any of the following to occur in a licensed premise: the lighting, inhaling, exhaling or combination thereof of tobacco, tobacco products, or tobacco related devices by any person. Section 8. 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 15 years but less than 18 years to enter the licensed premise to attempt to purchase tobacco, tobacco products or tobacco related 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 or tobacco-related 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 minorslawfully 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. SECTION 9.VIOLATIONS AND PENALTY. (A)Misdemeanor prosecution. Nothing in this section shall prohibit the city from seeking prosecution as a misdemeanor for any alleged violation of this ordinance. (B)Administrative penalties. (1)Licensees. Any licensee found to have violated this chapter, or whose employee shall have violated this chapter, shall be charged an administrative fine of $250 for a first violation of this chapter; $500 for a second offense at the same licensed premises within a 24-month period; and $750 for 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 consecutive days. (2)Other individuals. Other individuals, other than minors regulated by this section,found to be in violation of this chapter shall be charged an administrative fine of $50. (3)Minors. Minors found in unlawful possession of or who unlawfully purchase or attempt to purchase, tobacco, tobacco products, tobacco-related devices, or nicotine or lobelia delivery devices, shall be subject to an administrative fine, or may be subject to tobacco-related education classes, diversion programs, community services, or another penalty that the city believes will be appropriate and effective. The administrative fine or other penalty shall be established by City Council ordinance upon the City Council's consultation with interested parties of the courts, educators, parents and children to determine an appropriate penalty for minors in the city. This administrative fine or other penalty may also be established from time to time by the Ordinance Establishing Fees and Charges, as it may be amended from time to time. (4)Statutory penalties. If the administrative penalties authorized to be imposed by M.S.§ 461.12, as it may be amended from time to time, differ from those established in this section, then the statutory penalties shall prevail. Section 10. EFFECTIVE DATE. This ordinance shall become effective as of the date of its publication. The Maplewood City Council approved this ordinance on March 26, 2012.