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HomeMy WebLinkAboutNo 1012 Amending Chapter 14, Article XVIII of the City Code Regarding Tobacco-Related ProductsORDINANCE NO. 1012 AN ORDINANCE AMENDING CHAPTER 14, ARTICLE XVIII OF THE CITY CODE REGARDING TOBACCO-RELATED PRODUCTS The Maplewood City Council ordains as follows: Section I. The city council of the city of Maplewood hereby amends Chapter 14, Article XVIII of the Maplewood code of ordinances as follows (additions are underlined and deletions are stricken): ARTICLE XVIII. - TOBACCO-RELATED PRODUCTS Sec. 14-1371. - Purpose. This article is intended to regulate the sale, possession, and use of tobacco, tobacco-related devices, electronic delivery devices, and nicotine or lobelia delivery products to protect the general public against the serious effects associated with the use of tobacco, tobacco-related devices, electronic delivery devices, and nicotine or lobelia delivery products, to protect individuals from the hazards of secondhand smoke, and to further the official public policy of the State of Minnesota as stated in Minn. Stats. §§ 144.391 and 144.412, as may be amended from time to time. Sec. 14-1372. - 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 article, the following definitions shall apply unless the context clearly indicates or requires a different meaning: Cigar means any roll of tobacco that is wrapped in tobacco leaf or in any substance containing tobacco, with or without a tip or mouthpiece, that is not a cigarette as defined in Minn. Stat. § 297F.01, subd. 3, as amended from time to time. Compliance checks means the system the city uses to investigate and ensure that those authorized to sell licensed products are complying with the requirements of this article. Compliance checks shall involve the use of persons under the age of 21 who purchase or attempt to purchase licensed product. Electronic delivery devices means any product containing or delivering nicotine, lobelia, or any other substance, whether natural or synthetic, intended for human consumption through inhalation of aerosol or vapor from the product. Electronic delivery device includes but is not limited to devices manufactured, marketed, or sold as electronic cigarettes, electronic cigars, electronic pipe, vape pens, modes, tank systems, or under any other product name or descriptor. Electronic delivery device includes any component part of such a product, whether or not marketed or sold separately. Electronic delivery device excludes drugs, devices, or combination products, as those terms are defined in the Federal Food, Drug, and Cosmetic Act, that are authorized for sale by the United States Food and Drug Administration. Individually packaged means the practice of selling any tobacco or tobacco product wrapped individually for sale. Individually packaged tobacco and tobacco products shall include, but shall not be limited to, single cigarette packs, single cigars, 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. Indoor area means 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. A standard window screen (0.011 gauge with an 18 by 16 mesh count) is not considered a wall. Licensed products means the term that collectively refers to any tobacco, tobacco-related device, electronic delivery device or nicotine or lobelia delivery product. Loosies means the common term used to refer to a single or individually packaged cigar or 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 $2.60 per cigar. Minor means any natural person who has not yet reached the age of 18 years. Moveable place of business means any form of business operated out of a kiosk, truck, van, automobile or other type of vehicle or transportable shelter and not a fixed-address storefront or other permanent type of structure authorized for sales transactions. Nicotine or lobelia delivery products means any product containing or delivering nicotine or lobelia intended for human consumption, or any part of such a product, that is not tobacco or an electronic delivery device 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 means any place of business where licensed products 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 means any transfer of goods for money, trade, barter or other consideration. Sampling means the lighting of tobacco, tobacco products, tobacco-related devices or the activation of and inhaling of vapor from electronic cigarettes in a retail establishment by a customer or potential customer for the purpose of sampling the product or device before a purchase. Self-service merchandising means open displays of licensed products in any manner where any person shall have access to the licensed products, 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 licensed products 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 means inhaling or exhaling smoke from any lighted or heated cigar, cigarette, pipe, or any other tobacco or plant product, or inhaling or exhaling vapor from any electronic delivery device. 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 means 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, including but not limited to cigarettes; 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 drugs, devices, or combination products, as those terms are defined in the Federal Food, Drug, and Cosmetic Act, that are authorized for sale by the United States Food and Drug Administration. Tobacco-related devices means cigarette papers or pipes for smoking or other devices intentionally designed or intended to be used in a manner which enables the chewing, sniffing, smoking, or inhalation of aerosol or vapor of tobacco or tobacco products. Tobacco-related devices include components of tobacco-related devices which may be marketed or sold separately. Tobacco or Vape Shop means a retail establishment with an entrance door opening directly to the outside, with greater than 90% of the shop’s gross revenue obtained from the sale of licensed products, and which prohibits persons under 21 from entering at all times. Tobacco or vape shop excludes a tobacco department or section of an individual business with a liquor, food, or restaurant license. Vending machine means any mechanical, electric or electronic, or other type of device which dispenses licensed products upon the insertion of money, tokens or other form of payment directly into the machine by the person seeking to purchase the licensed product. Sec. 14-1373. - 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 licensed products 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 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 application to 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 the results 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 article until the appropriate license or investigation fee is paid in full. The fee(s) shall be established by the city council from time to time. (4) Duration. Licenses issued under this division shall have a duration period of one year. The expiration date of such license is as may be imposed, set, established and fixed by the city clerk, from time to time. (5) Transfers. All licenses issued under this article 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 article. (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 article 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. (9) Sale by minors. It shall be unlawful for any business licensed under this article to allow any person under the age of 18 years to sell, offer for sale, or attempt to sell licensed products. Sec. 14-1374. - Basis for denial of license. The following shall be grounds for denying the issuance of or renewal of a license under this article; 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: (1) The applicant is under the age of 21; (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 licensed products. (3) The applicant has had a license to sell licensed products revoked or suspended 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) 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. Sec. 14-1375. - Prohibited sales. It shall be a violation of this article for any person to sell or offer to sell any licensed product: (1) To a person under the age of 21; (2) By means of a vending machine; (3) By means of self-service merchandising; (4) As loosies; (5) Containing opium, morphine, jimsonweed, belladonna, strychnos, cocaine, marijuana, or other 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 (6) To any other person, in any other manner or form prohibited by federal or state law or regulation, or by local ordinance. Sec. 14-1376. - Smoking prohibited. Smoking shall not be permitted and no person shall smoke within the indoor area of any establishment with a tobacco license. Smoking for the purpose of sampling licensed products is also prohibited except for in tobacco or vape shops originally licensed prior to May 26, 2015. Signage must be posted as directed by State of Minnesota Administrative Rules. Sec. 14-1377. - 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 persons of at least 17 years of age but less than 21 years of age to enter the licensed premise to attempt to purchase licensed products. Prior written consent of a parent or guardian is required for any minor to participate in a compliance check. Persons participating in compliance checks shall be supervised by designated law enforcement officers or other designated city personnel. Persons conducting compliance checks shall be exempt from any applicable restriction on possession of licensed products when those items are obtained as a part of the compliance check. No person conducting compliance checks shall attempt to use a false identification misrepresenting their age, and all persons lawfully engaged in a compliance check shall answer all questions about their age asked by the licensee or their employees and shall produce any identification, if any exists, upon request. Sec. 14-1378. - 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 article. (b) Administrative penalties. (1) Licensees. If a licensee or employee of a licensee sells, gives, or otherwise furnishes licensed products to a person under the age of 21 years, or violates any other provision of this chapter, the licensee shall be charged an administrative penalty of $300 for the first violation. An administrative penalty of $600 must be imposed for a second violation at the same location within 36 months after the initial violation. For a third or any subsequent violation at the same location within 36 months after the initial violation, an administrative penalty of $1,000 must be imposed, and the licensee's authority to sell licensed products at that location must be suspended for not less than seven days and may be revoked. No suspension, revocation, or other penalty may take effect until the licensee has received notice, served personally or by mail, of the alleged violation and an opportunity for a hearing before the City Council. A subsequent decision by the City Council that a violation has occurred must be in writing. (2) Other individuals. An individual who sells, gives, or otherwise furnishes licensed products to a person under the age of 21 years may be charged an administrative penalty of $50. No penalty may be imposed until the individual has received notice, served personally or by mail, of the alleged violation and an opportunity for a hearing before the City Council. A subsequent decision by the City Council that a violation has occurred must be in writing. (3) Under 21. Persons under 21 found in unlawful possession of or who unlawfully purchase or attempt to purchase licensed products, may be subject to tobacco-related education classes, diversion programs, community services, or another penalty that the city believes will be appropriate and effective. (4) Statutory penalties. If the administrative penalties authorized to be imposed by Minn. Stats. § 461.12, as it may be amended from time to time, differ from those established in this section, then the higher penalties shall prevail. Sec, 14-1379. - Age verification and signage required. (a) Signage. At each location where licensed products are sold, the licensee shall display a sign in plain view to provide public notice that selling any of these products to any person under the age of 21 is illegal and subject to penalties. The notice shall be placed in a conspicuous location in the licensed establishment and shall be readily visible to any person who is purchasing or attempting to purchase these products. The sign shall provide notice that all persons responsible for selling these products must verify, by means of photographic identification containing the bearer's date of birth, the age of any person under 30 years of age. (b) Age verification. At each location where licensed products are sold, the licensee shall verify, by means of government-issued photographic identification containing the bearer's date of birth, that the purchaser or person attempting to make the purchase is at least 21 years of age. Verification is not required if the purchaser or person attempting to make the purchase is 30 years of age or older. It shall not constitute a defense to a violation of this subdivision that the person appeared to be 30 years of age or older. Sec. 14-1380. - Severability. If any section or provision of this ordinance is held invalid by a court of competent jurisdiction, such invalidity shall not affect any other section or provision and each shall be applied to the fullest extent without the invalidated section or provision. Secs. 14-1381—14-1400. - Reserved. Section II. This ordinance shall be effective on August 1, 2020 following its adoption and publication. Approved by the city council of the city of Maplewood this 27th day of July, 2020. Marylee Abrams Mayor Attest: Andrea Sindt City Clerk