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5. Scandia Tobacco Ordinance - Track Changes VersionCity of Scandia, Minnesota Ordinance No. 92XXX 1 Formatted: Font: 8 pt, Font color: Black Formatted: Font: 8 pt, Font color: Black CITY OF SCANDIA ORDINANCE NO. 92XXX 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 regulations 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.Purpose and Intent. Because the city recognizes that the sale of commercial tobacco, tobacco-related devices, electronic delivery devices, and nicotine or lobelia delivery products to persons under the age of 18 violates both state and federal laws; and because studies, which the city accepts and adopts, have shown that youth use of any commercial tobacco product has increased to 26.4% in Minnesota; and because nearly 90% of smokers begin smoking before they have reached the age of 18 years, and that almost no one starts smoking after age 25; and because marketing analysis, public health research, and commercial tobacco industry documents reveal that tobacco companies have used menthol, mint, fruit, candy, and alcohol flavors as a way to target youth and young adults and that the presence of such flavors can make it more difficult to quit; and because studies show that youth and young adults are especially susceptible to commercial tobacco product availability, advertising, and price promotions at tobacco retail environments; and because commercial tobacco use has been shown to be the cause of many serious health problems which subsequently place a financial burden on all levels of government, this ordinance is intended to regulate the sale of commercial tobacco, tobacco-related devices, electronic delivery devices, and Commented [PHLC1]: This ordinance is meant to regulate the licensing and sale of tobacco products (See comment below that explains the rationale for removing PUP provisions). Reference to “use” has been removed from the title and introductory description here. Commented [ES2]: Unnecessary text. Commented [ES3]: Remember to update section list. Commented [PHLC4]: This index will need to be updated if sections are added or removed. I did not amend the index because it will need to be amended based on the language finally proposed and adopted. Commented [PHLC5]: A Purpose and Intent section is important because it provides the evidentiary basis for the proposed commercial tobacco control policies and demonstrates the city’s reasoning for adopting specific provisions. This Purpose and Findings section reflects language appropriate for all of the provisions suggested. City of Scandia, Minnesota Ordinance No. 92XXX 2 Formatted: Font: 8 pt, Font color: Black Formatted: Font: 8 pt, Font color: Black nicotine or lobelia delivery products for the purpose of enforcing and furthering existing laws, to protect youth and young adults against the serious health effects associated with use and initiation, and to further the official public policy of the state to prevent young people from starting to smoke, as stated in Minn. Stat. § 144.391, as it may be amended from time to time. In making these findings, the City Council accepts the conclusions and recommendations of: the U.S. Surgeon General reports, E-cigarette Use Among Youth and Young Adults (2016), The Health Consequences of Smoking — 50 Years of Progress (2014) and Preventing Tobacco Use Among Youth and Young Adults (2012); the Centers for Disease Control and Prevention in their studies, Tobacco Use Among Middle and High School Students — United States, 2011–2015 (2016), and Selected Cigarette Smoking Initiation and Quitting Behaviors Among High School Students, United States, 1997 (1998); and of the following scholars in these scientific journals: Chen, J., & Millar, W. J. (1998). Age of smoking initiation: implications for quitting. Health Reports, 9(4), 39-46; D’Avanzo, B., La Vecchia, C., & Negri, E. (1994). Age at starting smoking and number of cigarettes smoked. Annals of Epidemiology, 4(6), 455–459; Everett, S. A., Warren, C. W., Sharp, D., Kann, L., Husten, C. G., & Crossett, L. S. (1999). Initiation of cigarette smoking and subsequent smoking behavior among U.S. high school students. Preventive Medicine, 29(5), 327–333; Giovino, G. A. (2002). Epidemiology of tobacco use in the United States. Oncogene, 21(48), 7326–7340; Khuder, S. A., Dayal, H. H., & Mutgi, A. B. (1999). Age at smoking onset and its effect on smoking cessation. Addictive Behaviors, 24(5), 673–677; Luke, D. A., Hammond, R. A., Combs, T., Sorg, A., Kasman, M., Mack- Crane, A., Henriksen, L. (2017). Tobacco Town: Computational Modeling of Policy Options to Reduce Tobacco Retailer Density. American Journal of Public Health, 107(5), 740–746; Minnesota Department of Health. (2018). Data Highlights from the 2017 Minnesota Youth Tobacco Survey. Saint Paul, MN; Tobacco Control Legal Consortium. (2006). The Verdict Is In: Findings from United States v. Phillip Morris, The Hazards of Smoking. University of California — San Francisco. Truth Tobacco Industry Documents, https://www.industrydocumentslibrary.ucsf.edu/tobacco/; Xu, X., Bishop, E. E., Kennedy, S. M., Simpson, S. A., & Pechacek, T. F. (2015) Annual healthcare spending attributable to cigarette smoking: an update. American Journal of Preventive Medicine, 48(3), 326– 333, copies of which are adopted by reference. SECTION 2. DEFINITIONS AND INTERPRETATIONS. For the purpose of this Ordinance the following definitions shall apply unless the context clearly indicates or requires a different meaning. CHILD-RESISTANT PACKAGING. Packaging that meets the definition set forth in Code of Federal Regulations, title 16, section 1700.15(b), as in effect on January 1, 2015, and was tested in accordance with the method described in Code of Federal Regulations, title 16, section 1700.20, as in effect on January 1, 2015. CIGAR. Any roll of tobacco that is wrapped in tobacco leaf or in any other substance containing tobacco, with or without a tip or mouthpiece, which is not a cigarette as defined in Minn. Stat. § 297F.01, subd. 3, as may be amended from time to time. COMPLIANCE CHECKS. The system the city uses to investigate and ensure that those authorized to sell tobacco, tobacco products and tobacco related devices licensed products are following and complying with the requirements of this Ordinance. COMPLIANCE Commented [ES6]: If the City is to adopt these scholarly articles, the City’s file should include copies and somebody should have read them… Commented [BE7R6]: agreement with ES to remove Commented [PHLC8]: Including this definition and a provision below to prohibit sales of liquids used in electronic cigarettes unless they are sold in child-resistant packaging aligns with state statute and federal law. Commented [ES9]: With respect to nicotine-containing liquids, any local regulation would be redundant of existing federal regulation. This definition is useful, however, if the City were to accept the suggested regulation of “liquid packaging” in Section 6(D), below, including its applicability to liquids not containing nicotine. Otherwise the definition is superfluous. Commented [PHLC10]: Cigar: Definition added to provide definition for premium cigar exception in the “loosies” definition and if a minimum pack/cigar price were adopted. Commented [PHLC11]: See note below regarding use of licensed products as an umbrella term within the ordinance. City of Scandia, Minnesota Ordinance No. 92XXX 3 Formatted: Font: 8 pt, Font color: Black Formatted: Font: 8 pt, Font color: Black CHECKSCompliance checks involve the use of persons under the age of 21 who purchase or attempt to purchase licensed products. COMPLIANCE CHECKSCompliance checks may also be conducted by the city or December 2018 www.publichealthlawcenter.org Minnesota City Retail Tobacco Licensing Ordinance 7 other units of government for educational, research, and training purposes or for investigating or enforcing federal, state, or local laws and regulations relating to licensed products.COMPLIANCE CHECKS may involve the use of minors as authorized by this Ordinance. ELECTRONIC DELIVERY DEVICE. Any product containing or delivering nicotine, lobelia, or any other substance, whether natural or synthetic, intended for human consumption through the inhalation of aerosol or vapor from the product. ELECTRONIC DELIVERY DEVICE Electronic delivery device includes, but is not limited to, devices manufactured, marketed, or sold as e-cigarettes, e-cigars, e-pipes, vape pens, mods, tank systems, or under any other product name or descriptor. Electronic delivery device ELECTRONIC DELIVERY DEVICE includes any component part of a product, whether or not marketed or sold separately. Electronic delivery device ELECTRONIC DELIVERY DEVICE does not include any product that has been approved or certified by the U.S. 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. 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. LICENSED PRODUCTS. The term that collectively refers to any tobacco, tobacco-related device, electronic delivery device, or nicotine or lobelia delivery product. LOOSIES. The common term used to refer to single or individually packaged cigars, or cigarettes, or any other licensed product, whether individually packaged or that has been removed from its intended retail packaging and offered for sale. LOOSIESLoosies does not include individual cigars with a retail price, after any discounts are applied and before any sales taxes are imposed, of at least [ $4.00 ] per cigar. 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 kiosk, 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 PRODUCT. Any product containing or delivering nicotine or lobelia intended for human consumption, or any part of such a product, that is not a tobacco or an electronic delivery device as defined in this section. NICOTINE OR LOBELIA DELIVERY PRODUCT Nicotine or Lobelia delivery product does not include any product that has been approved or otherwise certified for legal sale by the U.S. Food and Drug Administration Commented [PHLC12]: This compliance check definition is updated to reflect minimum legal sales age of 21 enacted in this ordinance. Commented [PHLC13]: There was no definition of electronic delivery device, so this definition was added. Commented [BE14R13]: Agreement to add Commented [PHLC15]: With the updated definition of “loosies” below, the definition of “individually packaged” is unnecessary. Commented [ES16]: I inadvertently un-did the deletion of this definition. I concur that it can be deleted. Commented [PHLC17]: The city may consider adding a new definition as an “umbrella” or catch-all term that includes all of the tobacco products covered in the ordinance (tobacco, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery products). One umbrella term other jurisdictions have used is “licensed products.” This allows for simplification throughout the ordinance. Here and throughout the rest of the ordinance, instead of listing all covered products, the code need only reference “licensed products.” This ordinance has been updated using this umbrella term throughout. Commented [BE18R17]: agreement to licensed products as umbrella term Commented [PHLC19]: This language: 1) complies with federal and state law (loosie cigarette sales) and 2) allows an exception from the definition of loosie for premium cigars that may be sold individually and out of their original packaging if they are sold at a threshold price that may be set by the jurisdiction. A higher price, such as $4.00, set for the premium cigar exception would help to reduce youth access. The price should be consistent with any minimum price/pack regulation that may be adopted. Commented [PHLC20]: This definition of minor is unnecessary because all references to “minor” have been removed with the updates for minimum legal sales age of 21. Commented [PHLC21]: The term kiosk is added because frequently, electronic cigarettes have been sold from kiosks, which many not be recognized as a typical moveable place of business. Commented [PHLC22]: The city code does not cover all products that require licensure to sell under state law. It is missing “nicotine or lobelia delivery product.” We have added this term and included it in the list of covered products. City of Scandia, Minnesota Ordinance No. 92XXX 4 Formatted: Font: 8 pt, Font color: Black Formatted: Font: 8 pt, Font color: Black as a tobacco-cessation product, a tobacco dependence product, 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 or tobacco related devices licensed products are available for sale to the general public. RETAIL ESTABLISHMENTSRetail establishments shall include, without limitationbut not be limited to, grocery stores, tobacco products shops, convenience stores, off-sale liquor stores, gasoline service stations, bars, and restaurants. SALE. Any transfer of goods for money, trade, barter or other consideration. SELF-SERVICE DISPLAY. The open display of licensed products in any manner where any person has access to the licensed products without the assistance or intervention of the licensee or the licensee’s employee. 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 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 December 2018 www.publichealthlawcenter.org Minnesota City Retail Tobacco Licensing Ordinance 9 twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco; and other kinds and forms of tobacco. TOBACCOTobacco does not include any product that has been approved by the U.S. 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. 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 rolling papers, wraps, pipes, or other device intentionally designed or intended to be used with tobacco products. TOBACCO-RELATED DEVICETobacco-related device includes components of tobacco-related devices or tobacco products, which may be marketed or sold separately. TOBACCO-RELATED DEVICES may or may not contain tobacco.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 or tobacco products. VENDING MACHINE. Any mechanical, electric or electronic, or other type of device which dispenses tobacco, tobacco products or tobacco related deviceslicensed products upon the insertion of money, tokens, or other form of payment directly into the machine by or on behlf of thea person seeking to purchase the tobacco, tobacco product or tobacco related devicelicensed product. Commented [PHLC23]: The city could consider adding a few more common places as examples of where tobacco products are sold to improve clarity for licensees and those enforcing the ordinance. Commented [PHLC24]: The city could consider updating this definition to add clarity and support compliance. Commented [PHLC25]: It is more clear to define a single term in the definition. This definition of tobacco is comprehensive and covers anything that would be considered a “tobacco product.” Commented [PHLC26]: This language addresses the range of products that may be on the market as tobacco - related devices. City of Scandia, Minnesota Ordinance No. 92XXX 5 Formatted: Font: 8 pt, Font color: Black Formatted: Font: 8 pt, Font color: Black YOUTH ORIENTED FACILITY. Any facility with residents, customers, visitors, or inhabitants of which 25 percent or more are regularly under the age of 21 or that primarily sells, rents, or offers services or products that are consumed or used primarily by persons under the age of 21. Youth-oriented facility includes, but is not limited to, schools, playgrounds, recreation centers, and parks. SECTION 32. LICENSE. No person shall sell or offer to sell any tobacco, tobacco products or tobacco related devicelicensed product 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 licensed products 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 information the city deems necessary. Upon receipt of a completed application, the City Clerk shall forward the application to City Council for action at its next regularly- scheduled Council meeting. If the Clerk shall determine that an application is incomplete, the application shall be returned to the applicant with notice of the information necessary to make the application complete. (B) Action. The City 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 City Council approves the license, the 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 Council’s decision. (C) Term. All licenses issued under this section shall be valid for one year from the date the current calendar year in whichthe 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. (D)(E) Transfers. All licenses issued are valid only on the premises for which the license was issued and only for the person to whom the license was issued. The transfer of any license to another location or person is prohibited. (E)(F) 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)(G) Display. All licenses shall be posted and displayed in plain view of the general public on the licensed premises. (H) Renewals. The renewal of a license issued under this section shall be processed in Commented [BE27]: recommended by PHLC Commented [ES28]: One-year licensing staggers renewals; annual licensing would result in a December/January “rush.” What does the City prefer? Commented [BE29R28]: continue to license within the current calendar year Commented [PHLC30]: This clause should be deleted. There is no definition or different regulation of “seasonal licenses” within the ordinance. All tobacco retailers should be treated the same regardless of how frequently their businesses is open. Commented [PHLC31]: This paragraph could be added to prohibit the transfer of licenses, clarify that a license is issued to one location and to one individual. This would replace paragraphs A and C in Section 3, removed with an explanation below. City of Scandia, Minnesota Ordinance No. 92XXX 6 Formatted: Font: 8 pt, Font color: Black Formatted: Font: 8 pt, Font color: Black 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. (I) Proximity to youth-oriented facilities. No license shall be approved for any sales of licensed products within 1,000 feet of any youth-oriented facility, as measured by a straight line between the space to be occupied by the proposed licensee and the occupied space of the 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 adopted. For the purpose of this section, a youth-oriented facility includes, without limitation, any facility with residents, customers, visitors, or inhabitants of which 25% 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. Youth-oriented facilities include, without limitation, schools, playgrounds, recreation centers, and parks. (J) 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 device or nicotine or lobelia 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. 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. (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. Commented [ES32]: LMC model ordinance includes proximity restrictions. What does the City prefer? Commented [NCP33]: This provision could be more concise. This is not defined but could be, above, in the definitions section. Then all other examples and the last sentence in this provision removed. See our model language: Any facility with residents, customers, visitors, or inhabitants of which 25 percent or more are regularly under the age of 21 or that primarily sells, rents, or offers services or products that are consumed or used primarily by persons under the age of 21. Youth-oriented facility includes, but is not limited to, schools, playgrounds, recreation centers, and parks. Commented [BE34]: definition has been added Commented [PHLC35]: The city may be interested in establishing a minimum age for employees that work for licensed tobacco retailers. Doing so ensures that employees are of or above the minimum legal sales age for commercial tobacco sales. It is public health best practice to have a minimum clerk age because younger clerks are found to be more willing to sell to underage customers. This is sample language that could be included as paragraph (H) here: (H) Minimum clerk age. Individuals employed by a licensed retail establishment under this ordinance must be at least [ 18 or 21 ] years of age to sell licensed products. Commented [ES36]: Consider the employee population of existing licensees before changing an age requirement. Commented [BE37]: included in the League model. Does the City want to adopt limits from tobacco retailers? Commented [BE38]: need to determine a reasonable distance Commented [PHLC39]: This section should be deleted. All the paragraphs in this section are addressed in other portions of the ordinance, making these restrictions redundant. There are differences in language between the ... Commented [PHLC40]: This would be better addressed above in Section 2 with a new paragraph (E) regarding single location, single licensee, and prohibition of transfers. Commented [PHLC41]: Licensing for moveable place of business is already prohibited above at Section 2. (F). Commented [PHLC42]: This would be better addressed above in Section 2 with a new paragraph (E) regarding single location, single licensee, and prohibition of transfers. Commented [PHLC43]: The prohibition of vending sales is addressed in Section 6. (See note about removing Section 7, which provides an exception to “grandfather” certain ... Commented [PHLC44]: Individually packaged products are prohibited for sale under the revised definition of “loosies” and prohibition of their sale located at Section 6. ... Commented [PHLC45]: This is also addressed in Section 9 so is unnecessary here. City of Scandia, Minnesota Ordinance No. 92XXX 7 Formatted: Font: 8 pt, Font color: Black Formatted: Font: 8 pt, Font color: Black 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. Fees shall be set from time to time by the City Council by resolution. SECTION 5. BASIS FOR DENIAL OF LICENSE. (A) The Grounds for denying the issuance or renewal of a license include, but are not limited to, the following: 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 21 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 licensed products; (3) The applicant has had a license to sell tobacco, tobacco products or tobacco related devices licensed products 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. (C) 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 SALESACTS. It shall be a violation of this Ordinance for any person to sell or offer to sell any tobacco product or tobacco related device: To any person under the age of 18 years; (A) In general. No person shall sell or offer to sell any licensed product: (1) By means of any type of vending machine, except as may otherwise be provided in this Ordinance.; (2) 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 Commented [BE46]: unclear why this sentence was redlined Commented [PHLC47]: Fees provide revenue for the administration and enforcement of the ordinance and for retailer and community education. Periodic review and adjustment of licensing fees will ensure that they are sufficient to cover all administration, implementation, and enforcement costs, including compliance checks. If the city is considering multiple compliance checks, the fees should be adjusted to cover the costs of the additional checks. PHLC’s publication, Retail License Fees, provides more information about retail licensing fees and a license fee checklist. Commented [PHLC48]: Rephrasing this paragraph allo ws for the discretion that is permitted in paragraph (B) below. As currently phrased with the term “shall”, any of the grounds listed here would be required grounds for not granting or renewing a license. Commented [PHLC49]: To improve readability, this provision has been moved into its own paragraph. Commented [PHLC50]: It was requested that with the city’s consideration of changing the minimum legal sales age to 21, that age verification and signage requirements be included in the sample language. I have restructured this section to improve readability given the additional language. City of Scandia, Minnesota Ordinance No. 92XXX 8 Formatted: Font: 8 pt, Font color: Black Formatted: Font: 8 pt, Font color: Black (2) By means of loosies., as defined in Section 1.; (3) Containing opium, morphine, jimson weed, belladonna, 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; (4) By any other means, or to any other person prohibited by federal, state or other local law, ordinance, provision or other regulation. (B) Legal age. No person shall sell any licensed product to any person under the age of 21. (3)(1) Age verification. Licensees must verify, by means of government-issued photographic identification, that everythe purchaser is at least 21 years of age. Verification is not required for a person over the age of 30. That the person appeared to be 30 years of age or older does not constitute a defense to a violation of this subsection. (4)(2) Signage. Notice of the legal sales age and age verification requirement must be posted prominently and in plain view at all times at each location where licensed products are offered for sale. The required signage, which will be provided to the licensee by the city, must be posted in a manner that is clearly visible to anyone who is or is considering making a purchase. (B)(C) Self-service sales. No person shall allow the sale of licensed products by any self- service displays where the customer may have access to those items without having to request the item from the licensee or the licensee’s employee and where there is not a physical exchange of the licensed product from the licensee or the licensee’s employee to the customer. All licensed products must be stored behind the sales counter, in another 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 licensed products at the time this ordinance is adopted must comply with this section within 90 days of the effective date of this ordinance. (C) Liquid packaging. No person shall sell or offer to sell any liquid, whether or not such liquid contains nicotine, which is intended for human consumption and use in an electronic delivery device, in packaging that is not child-resistant. Upon request by the city, a licensee must provide a copy of the certificate of compliance or full laboratory testing report for the packaging used. (D) 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 Commented [PHLC51]: For readability purposes, we moved the minimum legal sales age provision here as its own subsection, which allows for easier reading and the ability to expand on the provision with additional age verification language to comply state and federal law. Additionally, this section can address the signage requirements. Commented [PHLC52]: Federal regulations require distributors to “card” cigarette and smokeless tobacco recipients who look younger than 27 years old. However, state and local governments can adopt more restrictive tobacco regulations. Because this ordinance raises the minimum legal sale age for tobacco products, it makes sense to make a corresponding increase to the minimum carding age. Moreover, 30 years old is a simple, intuitive visual age line. Commented [PHLC53]: This signage language is especially important when a city raises the legal sales age to 21 so that everyone is aware of the change. Commented [PHLC54]: This provision prohibits sales of liquids used in electronic cigarettes unless they are sold in child-resistant packaging which aligns with state statute and federal law. Commented [BE55]: From League model – retain? City of Scandia, Minnesota Ordinance No. 92XXX 9 Formatted: Font: 8 pt, Font color: Black Formatted: Font: 8 pt, Font color: Black 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. 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 79. RESPONSIBILITY. All licensees under this oOrdinance shall be responsible for the actions of their employees in regard to the sale of tobacco, tobacco products or tobacco related deviceslicensed products 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 oOrdinance shall be construed as prohibiting the city from also subjecting the employee to whatever civil penalties the city deems are appropriate under this oOrdinance, state law, or other applicable law or regulation. SECTION 810. COMPLIANCE CHECKS AND INSPECTIONS. All licensed premises must be open to inspection by law enforcement or other authorized city officials during regular business hours. From time to time, but at least once[ twice ] per year, the city will conduct compliance checks. In accordance with state law, the city will conduct [ at least one compliance check that involves the participation of two persons: one person aged between the ages of 15 toand 17 and one person agedbetween the ages of 18 toand 20 ] [ at least one compliance check that involves the participation of a person between the ageds of 15 to and 17 and at least one compliance check that involves the participation of a person between the ageds of 18 toand 20 ] to enter licensed premises to attempt to purchase licensed products. Prior written consent by a parent or guardian is required for any person under the age of 18 to participate in a compliance check. Persons used for the purpose of compliance checks will be supervised by law enforcement or other designated personnel. 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 Commented [PHLC56]: This section allowing for vending machine sales may be deleted if it is no longer a relevant exception to the prohibition on vending sales. Commented [PHLC57]: This section may be moved to the more general section regarding prohibited acts. Commented [BE58R57]: Move to prohibited acts? Commented [PHLC59]: This wording was amended to reflect the focus on civil penalties for employees. Commented [PHLC60]: State law requires every local licensing authority to conduct at least one compliance check each year. This state-mandated compliance check “must involve minors over the age of 15, but under the age of 18.” It appears that cities with T21 laws can conduct this annual compliance check to both satisfy state law and to enforce its local T21 policy. To do so, a municipality could either conduct at least one compliance check with a person between the ages of 15 and 17 and a person between the ages of 18 and 20, or conduct more than one compliance check — at least one check with a person between the ages of 15 and 17 and at least one additional check with a person between the ages of 18 and 20. Included here, the bracketed language identifies two options that the city could choose and only one option should be retained in a final licensing ordinance. City of Scandia, Minnesota Ordinance No. 92XXX 10 Formatted: Font: 8 pt, Font color: Black Formatted: Font: 8 pt, Font color: Black minor’s age and all minors lawfully engaged in a compliance check shall answer all questions 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 911. OTHER ILLEGAL PROHIBITED ACTS. It is a violation of this ordinance for any person 21 years of age or older to purchase or otherwise obtain any licensed product on behalf of a person under the age of 21. It is also a violation for any person 21 years of age and older to coerce or attempt to coerce a person under the age of 21 to illegally purchase or attempt to purchase any licensed product. 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 c heck 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. 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. (A) 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. Commented [BE61]: Commented [ES62]: PHLC revisions would remove age restrictions on possession of licensed products. Commented [ES63]: PHLC revisions would remove age restrictions on use of licensed products. Commented [ES64]: PHLC revisions would remove age restrictions on the purchase of licensed products. Commented [PHLC65]: Possession, use and purchase (PUP) laws may be unlikely to reduce youth smoking significantly. They may undermine other conventional avenues of youth discipline, divert attention from more effective tobacco control strategies, and relieve the tobacco industry of responsibility for its marketing practices. Some communities are concerned that PUP provisions may be enforced inconsistently with respect to youth from certain racial and ethnic groups, resulting in their introduction into the criminal justice system. Nicotine is more addictive than heroin and other drugs. Many public health groups suggest focusing instead on the retailer, especially since this is a licensing code. For these reasons, the city may consider removing these sections which establish penalties for underage violators of the tobacco licensing ordinance. Removal of these provisions puts responsibility on the licensee, seller, or provider of the licensed products. Commented [PHLC66]: False ID violations under state law may be pursued by the city. False ID penalty violations and penalties are removed here because, as noted above, this ordinance is meant to regulate licensees. Commented [PHLC67]: For readability, this section is updated and moved to the section that addresses violations and penalties below. Commented [PHLC68]: This section is updated and moved to the violations and penalties section. City of Scandia, Minnesota Ordinance No. 92XXX 11 Formatted: Font: 8 pt, Font color: Black Formatted: Font: 8 pt, Font color: Black (B) 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 peace officer and given notice of the violator’s right to be heard on the accusations. SECTION 1013. 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 1114. EXCEPTIONS AND DEFENSES. (A) Religious, Spiritual, or Cultural Ceremonies or Practices. Nothing in this oOrdinance shall prevent the providing of tobacco , tobacco products or tobacco related device to a minorany person as part of an indigenous practice or lawfully recognized religious, spiritual or cultural ceremony or practice. (B) Reasonable Reliance. It shall be an affirmative defense to the violation of this oOrdinance for a person to have reasonably relied on proof of age as described by state law. SECTION 129815. VIOLATIONS AND PENALTIES. (A) Violations. (1) Notice. A person violating this ordinance may be issued, either personally or by mail, a citation from the city that sets forth the alleged violation and that informs the alleged violator of his or her right to a hearing on the matter and 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 ordinance may request in writing a hearing on the matter. Hearing requests must be made within 10 business days of the issuance of the citation and delivered to the City Clerk or other designated city officer. Failure to properly request a hearing within 10 business days of the issuance of the citation will terminate the person’s right to a hearing. (b) The City Clerk or otherA designated city officer will set the time and place for the hearing. Written notice of the hearing time and place will be mailed or delivered to the accused violator at least 10 business days prior to the hearing. (3) Hearing Officer. The City Council will designate a hearing officer. The hearing officer will be an impartial employee of the city or an impartial person retained by the city to conduct the hearing. (4) Decision. A decision will be issued by the hearing officer within 10 business days of the hearing. If the hearing officer determines that a violation of this ordinance did occur, that decision, along with the hearing officer’s reasons for finding a violation and the penalty to be imposed, will be recorded in writing, a copy of which will be provided to the city and the accused violator by in-person delivery or mail as soon as practicable. If the hearing officer finds that no violation occurred or finds Commented [PHLC69]: This language is removed. The penalties pursued should be controlled by the city, not the licensee who has violated. If the licensee opted for the misdemeanor penalty here, then they may not be subject to the stronger administrative penalties, including revocation. Commented [PHLC70]: For readability, this section may be divided into paragraphs to address each exception/defense. The indigenous practice exception has been updated to reflect T21 and updated language for how to reference the practices. Commented [PHLC71]: I have inserted a more robust penalties and violations section which would replace the “administrative fines” section above. A stronger and more clear violations and penalties section will assist with enforcement and compliance. The penalties also reflect the best practice of allowing more flexibility with the option of criminal prosecution for persons age 21 or over and removes criminal prosecution from this ordinance for persons under age 21. City of Scandia, Minnesota Ordinance No. 92XXX 12 Formatted: Font: 8 pt, Font color: Black Formatted: Font: 8 pt, Font color: Black grounds for not imposing any penalty, those findings will be recorded and a copy will be provided to the city and the acquitted accused violator by in-person delivery or mail as soon as practicable. The decision of the hearing officer is final, subject to an appeal as described in this section. (5) 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 ] must be paid by the person requesting the hearing. (6) Appeals. Appeals of any decision made by the hearing officer must be filed in County district court within 10 business days of the date of the decision. (7) Continued violation. Each violation, and every day in which a violation occurs or continues, shall constitute a separate offense. (B) Administrative penalties. (1) Licensees. Any licensee found to have violated this ordinance, or whose employee violated this ordinance, will be charged an administrative fine of $200 for a first violation. 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 $500 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 an additonal 10 5-day license suspension. A third violation within 12 months, or for sales during a license suspension, shall result in a fine of $750 and a license revocation. 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. (2) Other individuals. Individuals, other than persons under the age of 21 regulated by division (B)(3) of this section, who are found to be in violation of this ordinance will be charged an administrative fine of $50. (3) Persons under the aAge of 21. Persons under the age of 21 who violate this ordinance may only be subject to non-criminal, non-monetary civil penalties such as tobacco-related education classes, diversion programs, community services, or another penalty that the city determines to be appropriate. The City Council will consult with court personnel, educators, parents, children and other interested parties to determine an appropriate penalty for persons under the age of 21 in the city. The penalty may be established by ordinance and amended from time to time. (4) Statutory penalties. If the administrative penalty authorized to be imposed by Minn. Stat. § 461.12, as it may be amended from time to time, differ from that established in this section, then the higher penalty will prevail. (C) Misdemeanor prosecution. Nothing in this section prohibits the city from seeking prosecution as a misdemeanor for any alleged violation of this ordinance by a person 21 years of age or older. Commented [PHLC72]: The city could set a reasonable amount to collect costs of the administrative hearing process. Commented [PHLC73]: The city has a strong administrative penalties section. This language reflects the city’s penalty structure with increased fines proposed. Commented [PHLC74]: Since this version of the ordinance no longer has PUP or false ID, the only way a person under 21 could violate this ordinance as written is as a clerk or individual who sells to another person under 21. These alternative penalties ensure that youth are not harshly penalized for violations and that more effective and rehabilitative penalties are pursued. Commented [ES75]: This provision would exempt persons under 21 any otherwise-applicable misdemeanor/petty misdemeanor penalties, subjecting them only to non- monetary civil penalties. City of Scandia, Minnesota Ordinance No. 92XXX 13 Formatted: Font: 8 pt, Font color: Black Formatted: Font: 8 pt, Font color: Black 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.SectionDECTION 13[insert #]. SEVERABILITYSeverability. If any section or provision of this ordinance is held invalid, such invalidity will not affect other sections or provisions that can be given force and effect without the invalidated section or provision. SECTION 14Section [insert #]. EFFECTIVE DATEEffective 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 herby repealed. Passed by the City Council of Scandia, Minnesota this ____ day of _____, 2019. 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 Commented [PHLC76]: The city may consider allowing for discretion in issuing a misdemeanor. As written, any violation of this ordinance automatically constitutes a misdemeanor. This still allows discretion for the city to use misdemeanor if warranted but does not mandate it. Additionally, the city could consider removing a criminal penalty for anyone underage and only considering alternative penalties, for the same reasons the city removed PUP penalties (false ID violations for persons under 21 still exist, and thus they would automatically be subject to misdemeanor prosecution; impacting their financial aid, education, and employment prospects, for example). Commented [PHLC77]: A severability clause is important because it ensures that if for any reason one provision of the ordinance were to be challenged in court and struck down the remainder of the ordinance would remain in effect. Commented [PHLC78]: Including an effective date ensures that state law notice requirements are met and provides clarity for when the new or amended sections will go into effective.