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.