3.e Discussion on update to tobacco ordinance
Staff Report
Date of Meeting: March 6, 2019
To: City Council
From: Neil Soltis, Administrator
Re: Tobacco and Tobacco related devices and products
Background: The City received an inquiry regarding the regulation of electronic cigarettes and
delivery devices. The City enacted Ordinance 92 on January 1, 2007 to regulate the sale and use of
tobacco products. The City Attorney was asked whether the current ordinance provides any
regulation of electronic cigarettes and delivery devices. Eric noted that Ordinance No. 92 has no
application to e-cigarettes or vaping. A “tobacco product” contains tobacco leaf, under the
definition in Section 1, and a “tobacco related device” enables the consumption of tobacco
products. Vape juice may (or may not) be derived from tobacco, but it almost certainly does not
“contain tobacco leaf” and devices that enable the consumption of vape juice, such as e-cigarettes,
are almost certainly not “tobacco related devices.”
The definition of “tobacco product” under state statue was revised to extend to products “derived
from tobacco” and intended for human consumption by whatever means, and there is a new
definition of “electronic delivery device” that is used to “simulate smoking in the delivery of
nicotine or any other substance through inhalation of vapor.” But these new concepts are not yet a
part of the City’s ordinances; it would require a revised ordinance for the City to regulate e-
cigarettes and vaping.
The League of Minnesota Cities has prepared a model ordinance that provides for the regulation of
the possession, sale, and consumption of tobacco and tobacco related devices and products. The
model ordinance was reviewed by the City Attorney and the draft ordinance showing the markups
to the model ordinance follows this report.
If the Council would like to provide for regulation of electronic cigarettes and delivery devices that
model ordinance is a starting point. Questions raised where clarification would be needed are as
follows:
Section 1 – should a higher age requirement than 18 be used? The current ordinance defines a
minor as not having reached the age of 18.
Section 3(K) – What distance should be used to determine the proximity to youth-oriented
facilities?
Section 3(L) – Should there be a distance between retailers of tobacco products. If so what should
that distance be?
Section 13(B) – The violation language has been written so that it is not in conflict with the
administrative citation ordinance.
Section 13(C) – The penalties have been set to be the same as in Section 12 of the current
ordinance.
Two bills have been introduced in the State House that address the regulation of nicotine and e-
cigarettes, one of which calls for the establishment of the age of 21 for purchasing such products.
No bills have been introduced at the Senate Both bills in the House contain language stating that
nothing shall supersede or preclude the continuation or adoption of any local ordinance which
provides for more stringent regulation of the subject matter.
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ORDINANCE NO. _____
AN ORDINANCE REGULATING THE POSSESSION, SALE AND CONSUMPTION OF
TOBACCO AND TOBACCO RELATED DEVICES AND PRODUCTS WITHIN THE
CITY OF SCANDIA MINNESOTA.
The City Council of Scandia, Minnesota ordains:
SECTION 1. PURPOSE AND INTENT.
Because the city recognizes that many persons under the age of 18 years purchase or otherwise
obtain, possess and use tobacco, tobacco products, tobacco-related devices, electronic cigarettes,
electronic delivery device and nicotine 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 18
years and that those persons who reach the age of 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 intends to regulate the sale, possession and use of tobacco, tobacco
products, tobacco-related devices, electronic cigarettes, electronic delivery devices, and nicotine
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, electronic cigarettes, electronic delivery devices, and nicotine 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 Minn. Stat. § 144.391, as amended from time to time.
SECTION 2. DEFINITIONS.
Except as otherwise 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.
CIGARS. 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. The system the city uses to investigate and ensure that those
authorized to sell tobacco, tobacco products, tobacco-related devices, electronic cigarettes,
electronic delivery devices, and nicotine 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, electronic cigarettes, electronic delivery
devices, or nicotine 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, electronic cigarettes, electronic
delivery devices, and nicotine delivery devices.
Formatted: Highlight
Deleted: or lobelia
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ELECTRONIC DELIVERY DEVICE AND ELECTRONIC CIGARETTE. Any product
containing or delivering nicotine, lobelia, or any other substance intended for human
consumption that can be used by a person to simulate smoking in the delivery of nicotine or any
other substance through inhalation of vapor from the product. Electronic delivery device includes
any component part of a product, whether or not marketed or sold separately. Electronic delivery
device does not include any product that has been approved or certified 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 marketed and sold for such an approved purpose.
HOOKAH.
“Hookah" shall mean a pipe with a tube by which the smoke is drawn through a jar of water and
thus cooled for the use of tobacco or tobacco related products.
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.
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, kiosk, trailer 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 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.
PUBLIC PLACE. Any enclosed, indoor area used by the general public, including, but not
limited to, restaurants; bars; any other food or liquor establishment; retail and other commercial
establishments; educational facilities; hospitals; nursing homes; auditoriums; arenas; meeting
rooms; waiting rooms; and common areas of rental apartment buildings.
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RETAIL ESTABLISHMENT. Any place of business where tobacco, tobacco products,
tobacco-related devices, electronic cigarettes, electronic delivery devices, or nicotine 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.
SAMPLING. 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. Open displays of tobacco, tobacco products,
tobacco-related devices, electronic cigarettes, electronic delivery devices, or nicotine delivery
devices in any manner where any person shall have access to the tobacco, tobacco products,
tobacco-related devices, electronic cigarettes, electronic delivery devices, or nicotine 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 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,
hookah, or any other lighted or heated tobacco or plant product or derivative, or exhaling vapor
from any electronic delivery device, such as vaping. Smoking also includes carrying a lighted or
heated cigar, cigarette, pipe, hookah or any other lighted or heated tobacco or plant product or
derivative intended for inhalation.
SMOKING LOUNGE. A tobacco or vapor products shop which allows customers to be seated.
TOBACCO or TOBACCO RELATED 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, including by vaping, or any component, part, or accessory of a
tobacco product; cigars; pipe tobacco, 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; dipping tobaccos; 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 OR VAPOR PRODUCTS SHOP: A retail establishment with an entrance door
opening directly to the outside that derives more than ninety percent (90%) of its gross revenue
from the sale of tobacco, tobacco related products, tobacco related devices, electronic delivery
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devices, and electronic cigarettes and in which the sale of other products is merely incidental.
"Tobacco or vapor products shop" does not include a tobacco or vapor products department or
section of any individual business establishment with any type of food, liquor, or restaurant
license.
TOBACCO-RELATED DEVICES. Tobacco-related devices include 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, smoking, or vaping 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 3. LICENSE.
(A) License required. No person shall sell or offer to sell any tobacco, tobacco products,
tobacco-related device, electronic cigarettes, electronic delivery devices, or nicotine delivery
device without first having obtained a license to do so from the city. 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.
(B) Application. An application for a license to sell tobacco, tobacco products,
tobacco-related devices, electronic cigarettes, electronic delivery devices, or nicotine 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 determines an application 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 approves 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 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 Section 13.
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(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 for licensing 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 30 days but
not more than 60 days before the expiration of the current license. The applicant must provide
proof that an employee training program on tobacco sales has been provided during the license
year by submitting records supporting that training at the time of their license renewal each year.
(J) Issuance as privilege and not a right. The issuance of a license issued under this section
represents a privilege and not an absolute right of the applicant and does not entitle the holder to
an automatic renewal of the license.
(K) Proximity to youth-oriented facilities. No license shall be granted pursuant to this section
to any person for any retail sales of tobacco, tobacco products, tobacco-related devices,
electronic cigarettes, electronic delivery devices, or nicotine delivery devices within 1,000 feet of
any school, playground, house of worship, or youth-oriented facility, as measured by the shortest
line between the space to be occupied by the proposed licensee and the occupied space of the
school, playground, house of worship, or youth-oriented facility, unless that person has been in
the business of selling such products in that location for at least one year before the date this
section was enacted into law. For the purpose of this section, a youth-oriented facility includes
any facility with residents, customers, visitors, or inhabitants of which 25 percent or more are
regularly under the age of 21 or which primarily sells, rents, or offers services or products
consumed or used primarily by persons under the age of 21.
(L) Proximity to other tobacco retailers. No license shall be granted pursuant to this section to
any person for any retail sales of tobacco, tobacco products, tobacco-related devices, electronic
cigarettes, electronic delivery devices, or nicotine delivery devices within two thousand feet of
any other establishment holding such a license, as measured by the shortest line between the
space to be occupied by the proposed licensee and the occupied space of the nearest existing
licensee, unless that person has been in the business of selling such products in that location
before the date this section was enacted into law for at least one year.
(M) Smoking. Except as allowed under Minn. Stat. § 144.414, 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 generally is
prohibited.
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(N) Penalty, see Section 13.
SECTION 4. FEES.
No license shall be issued under this chapter until the appropriate license fee is paid in full. The
fee for a license under this chapter shall be established in the city's Ordinance Establishing Fees
and Charges, as amended from time to time.
Penalty, see Section 13.
SECTION 5. BASIS FOR DENIAL OF LICENSE.
(A) Grounds for denying the issuance or renewal of a license under this chapter include but
are not limited to the following:
(1) The applicant is under the age of 18 years.
(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 tobacco, tobacco
products, tobacco-related devices, electronic cigarettes, electronic delivery devices, or nicotine
delivery devices.
(3) The applicant has had a license to sell tobacco, tobacco products, tobacco-related
devices, electronic cigarettes, electronic delivery devices, or nicotine delivery devices revoked
within the preceding 18 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) Except as may otherwise be provided by law, the existence of any particular ground for
denial, however, 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 of the ineligibility of the applicant for the license under this chapter.
(D) Penalty, see Section 13.
SECTION 6. PROHIBITIONS.
(A) Prohibited Sales.
It shall be a violation of this chapter for any person to sell or offer to sell any tobacco, tobacco
product, tobacco-related device, electronic cigarette, electronic delivery devices, or nicotine
delivery device:
(1) To any person under the age of 18 years.
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(2) By means of any type of vending machine.
(3) By means of self-service methods whereby the customer does not need to a make
a verbal or written request to an employee of the licensed premise in order to receive the tobacco,
tobacco product, tobacco-related device, electronic cigarette, electronic delivery device, or
nicotine delivery device and whereby there is not a physical exchange of the tobacco, tobacco
product, tobacco-related device, electronic cigarette, electronic delivery device, nicotine delivery
device between the licensee, or the licensee's employee, and the customer.
(4) By means of loosies as defined in Section 2.
(5) 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.
(6) 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.
(B) Smoking and Sampling Prohibitions.
(1) Except for exceptions listed in Minn. Stat. § 144.4167, smoking generally shall be
prohibited and no person shall smoke in public places and places of work,
including outdoor and bar areas of restaurants. Other than provided for in
144.4167, subd. 4, tobacco sampling, including sampling of electronic delivery
devices and products used in electronic delivery devices, is specifically prohibited
in the city.
(2) To ensure that tobacco smoke or vapor electronic delivery devices does not enter
public places and places of work and that persons entering such places are not exposed
involuntarily to smoke or vapor, smoking and the use of electronic delivery devices are
prohibited within twenty-five (25) feet of entrances, exits, open windows and ventilation intakes
of public places and places of work. This prohibition does not apply to entrances and exits used
solely in the event of an emergency and appropriately signed for that purpose.
(C) Smoking Lounges
Smoking lounges, hookah lounges and vapor lounges are prohibited.
(D) Cigars
No person shall sell, offer to sell or distribute cigars in an original package containing fewer than
five cigars. This restriction shall not apply to any sales, offer to sell, or distribution of an original
package consisting of one, two, three, four, or five cigars, provided that each original package
has a retail sales price of at least $2.60 per cigar and after any price promotions or discounts are
taken into account and before the imposition of sales tax, but excluding retail sales tax, and
tobacco or vapor product shops only accessible to those 18 years or older.
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(1) This section shall not apply to premium cigars as defined in Minnesota Statues
297F.01 subd. 13a.
(2) The minimum pricing established in this section shall be adjusted periodically for
inflation at least every three years.
(E) Penalty, see Section 13.
SECTION 7. SELF-SERVICE SALES.
It shall be unlawful for a licensee under this chapter to allow the sale of tobacco, tobacco
products, tobacco-related devices, electronic cigarettes, electronic delivery devices, or nicotine
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 delivery
device between the licensee or his or her clerk and the customer. All tobacco, tobacco products,
tobacco-related devices, electronic cigarettes, electronic delivery devices, and nicotine 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, electronic cigarettes, electronic
delivery devices, or nicotine delivery devices at the time this chapter is adopted shall comply
with this section within 90 days following the effective date of this chapter. A license holder who
operates an establishment or fully enclosed portion of an establishment that sells at least 90
percent of its products in tobacco, or tobacco products, tobacco-related devices, electronic
delivery devices, or electronic cigarettes, is exempt from the self-service merchandising
provision if the license holder prohibits anyone under 18 years of age from entering the
establishment or fully enclosed portion of an establishment and the license holder conspicuously
displays a notice prohibiting persons under 18 years of age from entering the establishment.
Penalty, see Section 13.
SECTION 8. RESPONSIBILITY.
All licensees under this chapter shall be responsible for the actions of their employees in regard
to the sale of tobacco, tobacco products, tobacco-related devices, electronic cigarettes, electronic
delivery devices, or nicotine 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 chapter, state or federal law, or other applicable law or regulation.
Penalty, see Section 13.
SECTION 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 the appropriate parents or
guardians, individuals over the age of 15 years but less than 18 years, to enter the licensed
premise to attempt to purchase tobacco, tobacco products, tobacco-related devices, electronic
cigarettes, electronic delivery devices, or nicotine delivery devices. Minors used for the purpose
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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, electronic cigarettes, electronic
delivery devices, or nicotine delivery devices when obtaining those items 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.
Penalty, see Section 13.
SECTION 10. OTHER ILLEGAL ACTS.
Unless otherwise provided, the following acts shall be a violation of this chapter:
(A) Illegal sales. It shall be a violation of this chapter for any person to sell or otherwise
provide any tobacco, tobacco product, tobacco-related device, electronic cigarettes, electronic
delivery device or nicotine delivery device to any minor.
(B) Illegal possession. It shall be a violation of this chapter for any minor to have in his or
her possession any tobacco, tobacco product, tobacco-related device, electronic cigarettes,
electronic delivery device, or nicotine delivery device. This division (B) shall not apply to
individuals lawfully involved in a compliance check.
(C) Illegal use. It shall be a violation of this chapter for any minor to smoke, chew, sniff, or
otherwise use any tobacco, tobacco product, tobacco-related device, electronic cigarettes,
electronic delivery device, or nicotine delivery device.
(D) Illegal procurement. It shall be a violation of this chapter for any minor to purchase or
attempt to purchase or otherwise obtain any tobacco, tobacco product, tobacco-related device,
electronic cigarettes, electronic delivery device, or nicotine delivery device, and it shall be a
violation of this chapter 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 delivery device. This division (D) shall not apply to individuals lawfully
involved in a compliance check.
(E) Use of false identification. It shall be a violation of this chapter for any minor to 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.
Penalty, see Section 13.
SECTION 11. EXCEPTIONS AND DEFENSES.
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Nothing in this chapter shall prevent the providing of tobacco, tobacco products, tobacco-related
devices, electronic cigarettes, electronic delivery devices, or nicotine 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 chapter for a person to have reasonably relied on proof
of age as described by state law.
SECTION 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.
SECTION 13. 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) Violations.
(1) Notice. A person violating this chapter may be issued, either personally or by
mail, a citation that sets forth the alleged violation and that informs the alleged violator of his or
her right to a hearing on the matter. The citation shall provide information on how and where a
hearing may be requested, including a contact address and phone number.
(2) Hearings.
(a) Upon issuance of a citation, a person accused of violating this chapter may request in
writing a hearing on the matter. Failure to request a hearing within ten days of the issuance of the
citation will terminate the person’s right to a hearing.
(b) A designated city officer shall set the time and place for the hearing. Written notice of
the hearing time and place shall be mailed or delivered to the accused violator at least ten days
prior to the hearing.
(3) Hearing Officer. The city official designated by the City Council shall serve as
the hearing officer. The hearing officer must be an impartial employee of the city or an impartial
person retained by the city to conduct the hearing.
(4) Decision.
(a) A decision shall be issued by the hearing officer within ten days. If the hearing officer
determines that a violation of this chapter did occur, that decision, along with the hearing
officer's reasons for finding a violation and the penalty to be imposed under division (B) of this
section, shall be recorded in writing, a copy of which shall be provided to the city and the
accused violator by in person delivery or mail as soon as practicable Likewise, if the hearing
officer finds that no violation occurred or finds grounds for not imposing any penalty, those
findings shall be recorded and a copy provided to the city and the acquitted accused violator by
in person delivery or mail as soon as practicable.
(b) Costs. If the citation is upheld by the hearing officer, the city’s actual expenses in
holding the hearing up to a maximum of $1,000.00 shall be paid by the person requesting the
hearing.
(c) The decision of the hearing officer is final.
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(5) Appeals. Appeals of any decision made by the hearing officer shall be filed in the
district court for the city in which the alleged violation occurred within ten days.
(6) Continued violation. Each violation, and every day in which a violation occurs or
continues, shall constitute a separate offense.
(C) 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 $100 for a first
violation of this chapter. Failure to pay the fine within thirty days shall result in a two-day
license suspension. A second violation at the same licensed premises within a 12-month period
shall result in a $250 fine and a five-day license suspension. Failure to pay the fine within thirty
days shall result in a five-day license suspension. A third violation within a 12-month period
shall result in license revocation.
(2) Other individuals. Other individuals, other than minors regulated by division
(C)(3) of 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, electronic cigarettes,
electronic delivery devices, or nicotine 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 (or
similar), as it may be amended from time to time.
(4) Statutory penalties. If the administrative penalties authorized to be imposed by
Minn. Stat. § 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 14. EFFECTIVE DATE.
This ordinance becomes effective on the date of its publication, or upon the publication of a
summary of the ordinance as provided by Minn. Stat. § 412.191, subd. 4, as it may be amended
from time to time, which meets the requirements of Minn. Stat. § 331A.01, subd. 10, as it may be
amended from time to time.
SECTION 15. REPEALER.
Ordinance 92 is hereby repealed.
Passed by the City Council of Scandia, Minnesota this _____ day of Month, 2019.
[24947-33204/2520950/2]
___________________
Mayor
Attested:
__________________
City Administrator
CITY OF SCANDIA
ORDINANCE NO. 92
AN ORDINANCE REGULATING THE SALE AND USE OF TOBACCO PRODUCTS
WITHIN
THE CITY OF SCANDIA
The City Council of the City of Scandia hereby ordains:
The City Council of the City of Scandia hereby adopts the following regul ations
pertaining to the sale and use of tobacco products within the City of Scandia:
Section 1. Definitions and interpretations
Section 2. License
Section 3. License restrictions
Section 4. Fees
Section 5. Basis for denial of license
Section 6. Prohibited sales
Section 7. Vending machines
Section 8. Tobacco display and storage
Section 9. Responsibility
Section 10. Compliance checks and inspections
Section 11. Other illegal acts
Section 12. Administrative fines
Section 13. Revocation hearing
Section 14. Exceptions and defenses
Section 98. Violations
SECTION 1. DEFINITIONS AND INTERPRETATIONS.
For the purpose of this Ordinance 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 and tobacco related devices are following and
complying with the requirements of this Ordinance. COMPLIANCE CHECKS may involve the
use of minors as authorized by this Ordinance.
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 5 or more single packs or other containers as described in this Ordinance shall not be
considered individually packaged.
City of Scandia, Minnesota
Ordinance No. 92
2
LOOSIES. The common term used to refer to a single or individually packaged cigarette.
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.
RETAIL ESTABLISHMENT. Any place of business where tobacco, tobacco products
or tobacco related devices are available for sale to the general public. RETAIL
ESTABLISHMENTS shall include, but not be limited to, grocery stores, convenience stores and
restaurants.
SALE. Any transfer of goods for money, trade, barter or other consideration.
SELF-SERVICE MERCHANDISING. Open displays of tobacco, tobacco products or
tobacco related devices packaged in packages of 4 or fewer individually wrapped containers
which are accessible to the public without the intervention of an employee. Self -service
merchandising shall not include vending machines.
TOBACCO or TOBACCO PRODUCTS. Any substance or item containing tobacco leaf,
including, but not limited to, cigarettes; cigars; pipe tobacco; snuff fine cut or other chewing
tobacco; cheroot; 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, cuttings 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 DEVICES. Any tobacco product as well as a pipe, rolling papers
or other device used in a manner which enables the chewing, sniffing or smoking of tobacco o r
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 2. LICENSE.
No person shall sell or offer to sell any tobacco, tobacco products or tobacco related
device without first having obtained a license to do so from the city.
(A) Application. An application for a license to sell tobacco, tobacco products or
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 names of the business for which the license is sought and any additional
City of Scandia, Minnesota
Ordinance No. 92
3
information the city deems necessary. Upon receipt of a completed application, the City Clerk
shall forward the application to Council for action at its next regularly scheduled Council
meeting. If the Clerk shall determine that an application is incomplete, application shall be
returned to the applicant with notice of the information necessary to make the application
complete.
(B) Action. The Council may either approve or deny the license, or it may delay
action for such reasonable period of time as necessary to complete any investigation of the
application or the applicant it deems necessary. If the Council approves the lic ense, the Clerk
shall issue the license to the applicant. If the 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 Council’s
decision.
(C) Term. All licenses issued under this section shall be valid for the current calendar
year in which the license is issued except that if a retail establishment conducts sales for six
months or less in a calendar year it shall be granted a seasonal license.
(D) Revocation or suspension. Any license issued under this section may be revoked
or suspended as provided in this Ordinance.
(E) 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.
(F) Display. All licenses shall be posted and displayed in plain view of the general
public on the licensed premises.
(G) Renewals. The renewal of a license issued under this section shall be processed in
the same manner as the original application. The request for a renewal shall be made at least 30
days but no more than 60 days before the expiration of the current license.
SECTION 3. LICENSE RESTRICTIONS.
A license shall be issued subject to the following restrictions.
(A) No license shall be issued to any applicant for the sale of tobacco, tobacco
products or tobacco related devices at any place other than the applicant’s established place of
business.
(B) No license shall be issued for the sale of tobacco, tobacco products or tobacco
related devices at a moveable place of business.
(C) No license shall be issued for the sale of tobacco, tobacco products or tobacco
related devices at more than one place of business.
(D) No person shall sell or dispense any tobacco, tobacco products or tobacco related
devices through the use of a vending machine except as provided in Section 7.
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Ordinance No. 92
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(E) No individually packaged tobacco product shall be offered for sale by means of
self-service merchandising.
(F) Every licensee shall be responsible for the conduct of its employees while on the
licensed premises and any sale or other disposition of tobacco products by an employee to a
person under 18 years of age shall be considered an act of the licensee for purposes of imposing
an administrative fine, license suspension or revocation.
SECTION 4. FEES.
No license shall be issued under this Ordinance until the appropriate license fee shall be
paid in full. Fees shall be set from time to time by the City Council by resolution.
SECTION 5. BASIS FOR DENIAL OF LICENSE.
(A) The following shall be grounds for denying the issuance or renewal of a license
under this chapter:
(1) The applicant is under the age of 18 years;
(2) 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,
tobacco products or tobacco related devices;
(3) 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 the 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.
(B) 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. If a license is mistakenly
issued or renewed it shall be revoked upon the discovery that the person was ineligible for the
license under this Ordinance.
SECTION 6. PROHIBITED SALES.
It shall be a violation of this Ordinance for any person to sell or offer to sell any tobacco
product or tobacco related device:
(A) To any person under the age of 18 years;
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Ordinance No. 92
5
(B) By means of any type of vending machine, except as may otherwise be provided
in this Ordinance;
(C) By means of self-service merchandising, as defined in Section 1, whereby the
customer is not required to make a verbal or written request to an employee of the licensed
premises in order to receive the tobacco, tobacco product or tobacco related device;
(D) By means of loosies, as defined in Section 1;
(E) Containing opium, morphine, jimson weed, bella donna, strychnos, cocaine,
marijuana, or other type of deleterious, hallucinogenic, or toxic or controlled substance except
nicotine and not naturally found in tobacco or tobacco products;
(F) By any other means, or to any other person prohibited by federal, state or other
local law, ordinance, provision or other regulation.
SECTION 7. VENDING MACHINES.
It shall be unlawful for any person under this Ordinance to allow the sale of tobacco,
tobacco products or related devices by means of a vending machine unless the vending machine
was used and in operation at a tobacco licensed business prior to January 1, 1997.
SECTION 8. TOBACCO DISPLAY AND STORAGE.
All individually packaged tobacco, tobacco products and tobacco related devices as
defined in Section 1 shall 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.
SECTION 9. RESPONSIBILITY.
All licensees under this Ordinance shall be responsible for the actions of their employees
in regard to the sale of tobacco, tobacco products or tobacco related devices on the licensed
premises and the sale of such an item by an employee shall be considered a sale by the license
holder. Nothing in this Ordinance shall be construed as prohibiting the city from also subjecting
the employee to whatever penalties are appropriate under this Ordinance, state law or other
applicable law or regulation.
SECTION 10. COMPLIANCE CHECKS AND INSPECTIONS.
All licensed premises shall be open to inspection by the City peace officer 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 minors to enter the licensed premises
to attempt to purchase tobacco, tobacco products or tobacco related devices. Minors used for the
purpose of compliance checks shall not be guilty of unlawful possession of tobacco, tobacco
products or related devices when such items are obtained as part of the compliance check. No
minor used in compliance checks shall attempt to use a false identification misrepresenting the
City of Scandia, Minnesota
Ordinance No. 92
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minor’s age and all minors lawfully engaged in a compliance check shall answer all que stions
about the minors age asked by the licensee or his or her employee and shall produce any
identification for which the minor is asked.
SECTION 11. OTHER ILLEGAL ACTS.
Unless otherwise provided, the following acts shall be a violation of this section.
(A) Illegal possession. It shall be a violation of this Ordinance for any minor to have
in the minor’s possession any tobacco, tobacco product or tobacco related device. This
subdivision shall not apply to minors lawfully involved in a compliance check on behalf of the
city or who have only temporary possession during a legal sales transaction.
(B) Illegal use. It shall be a violation of this Ordinance for any minor to smoke, chew,
sniff or otherwise use any tobacco, tobacco product or tobacco related device.
(C) Illegal procurement. It shall be a violation of this Ordinance for any minor to
purchase or attempt to purchase or otherwise obtain any tobacco, tobacco product or tobacco
related device. It shall be a violation of this Ordinance for any person to purchase or otherwise
obtain such items on behalf of a minor. It shall be a violation of this Ordinance for any person to
sell or otherwise provide any tobacco, tobacco product or tobacco related device to any minor or
to coerce or attempt to coerce a minor to illegally purchase or otherwise obtain or use any
tobacco, tobacco product or tobacco related device. This subdivision shall not apply to minors
lawfully involved in a compliance check on behalf of the city.
(D) Use of false identification. It shall be a violation of this Ordinance for any minor
to attempt to disguise the minor’s 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 altered, to represent an age older than the actual age of the person.
SECTION 12. ADMINISTRATIVE FINES.
(A) Any violation of the restrictions attached to a tobacco product license shall be
cause for a fine, suspension or revocation of the license. The first violation shall result in an
administrative fine of $100 to the license holder, payable to the city. Failure to pay the fine
within 30 days from the date of invoice shall result in a 2 day license suspension. A second
violation within 12 months shall result in a fine of $250 payable to the city and result in a 5 day
license suspension. Failure to pay the fine within 30 days from the date of the invoice shall result
in a 10 day license suspension. A third violation within 12 months, or for sales during a license
suspension, shall result in a license revocation and prosecution as a misdemeanor.
(B) Licensees whose licenses have been revoked shall not be eligible for another
tobacco product license for one year from the date of revocation. The City Council may attach
reasonable conditions to the reinstatement of a suspended or revoked license.
City of Scandia, Minnesota
Ordinance No. 92
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(C) The accused violator may at any time withdraw from the administrative penalty
process and elect to have the case heard in court under a misdemeanor prosecution. Upon
discovery of a suspected violation, the violator may be issued a citation by the City p eace officer
and given notice of the violator’s right to be heard on the accusations.
SECTION 13. REVOCATION HEARING.
Revocation or suspension of a license shall be preceded by a hearing before the City
Council. A hearing notice shall be given to the licensee at least 10 days prior to the hearing. The
notice shall include the time and place of the hearing and shall state the nature of the charge
against the licensee.
SECTION 14. EXCEPTIONS AND DEFENSES.
Nothing in this Ordinance shall prevent the providing of tobacco, tobacco products or
tobacco related device 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 Ordinance for a person to
have reasonably relied on proof of age as described by state law.
SECTION 98. VIOLATIONS.
Any person found to be in violation of this Ordinance shall be guilty of a misdemeanor
and, upon conviction thereof, shall be punished according to law.
Passed and adopted by the City Council of the City of Scandia this 2nd day of January, 2007.
Dennis D. Seefeldt, Mayor
ATTEST:
Anne Hurlburt, Clerk/Administrator