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Ord 522 Amend Code 3-2 Tobacco Sale- Flavored TobaccoCITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA ORDINANCE NO. 522 AN ORDINANCE AMENDING CITY CODE SECTION 3-2 TOBACCO SALES The City Council of the City of Mendota Heights, Minnesota, does hereby ordain: Section 1. Section 3-2 of the City Code shall be amended by the following language: Chapter 2 TOBACCO SALESti 3-2-1: PURPOSE: 3-2-2: DEFINITIONS AND INTERPRETATION: 3-2-3: LICENSE: 3-2-4: LICENSE FEE: 3-2-5: GROUNDS FOR DENIAL OF LICENSE: 3-2-6: PROHIBITED SALES; ILLEGAL ACTS: 3-2-7: SELF-SERVICE SALES: 3-2-8: RESPONSIBILITY FOR EMPLOYEES: 3-2-9: COMPLIANCE CHECKS AND INSPECTIONS: 3-2-10: CIVIL ENFORCEMENT: 3-2-11: NOTICE OF VIOLATION: 3-2-12: PENALTIES: 3-2-13: HEARINGS AND APPEALS: 3-2-14: SEVERABILITY: 3-2-1: PURPOSE: Because the city recognizes that many persons under the age of eighteen (18) years purchase or otherwise obtain, possess and use tobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices, and such sales, possession and use are violations of both state and federal laws; because marketing and public health research and tobacco industry documents reveal that tobacco companies have used fruit, candy, and alcohol flavors as a way to target persons under 18 years of age and that the presence of flavors in tobacco products can make it more difficult for persons under 18 years of age and adult tobacco users to quit; and because studies, which the city hereby accepts and adopts, have shown that most smokers begin smoking before they have reached the age of eighteen (18) years and that those persons who reach the age of eighteen (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 severe health problems which subsequently place a financial burden on all levels of government; this chapter shall be intended to regulate the sale, possession and use of tobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices for the purpose of enforcing and furthering existing laws, to protect persons under 18 years of age against the serious effects associated with the illegal use of tobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices, and to further the official public policy of the state in regard to preventing persons under 18 years of age from starting to use tobacco products as stated in Minnesota statutes section 144.391, public policy. (Ord. 458, 12-3-2013) 3-2-2: DEFINITIONS AND INTERPRETATION:,J Except as may otherwise be provided or clearly implied by context, all terms shall be given their commonly accepted definitions. The singular shall include the plural and the plural shall include the singular; the masculine shall include the feminine and vice versa; the term "shall" means mandatory and the term "may" means permissive. The following terms shall have the definitions given to them: 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, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices are following and complying with the requirements of this chapter. Compliance checks shall involve the use of persons under 18 years of age as authorized by this chapter. Compliance checks shall also mean the use of persons under 18 years of age who attempt to purchase tobacco, tobacco products, tobacco related devices, or nicotine or lobelia delivery devices for educational, research and training purposes as authorized by state and federal laws. Compliance checks may also be conducted by other units of government for the purpose of enforcing appropriate federal, state or local laws and regulations relating to tobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices. ELECTRONIC DELIVERY DEVICES: Any product containing or delivering nicotine, lobelia, or any other substance intended for human consumption through the inhalation of aerosol or vapor from the product. 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 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. Ord 522 pg. 2 of 12 FLAVORED PRODUCT: Any tobacco, tobacco product, tobacco related device, electronic delivery device, and nicotine or lobelia delivery device that contains a taste or smell, other than the taste or smell of tobacco, menthol, mint, or wintergreen that is distinguishable by an ordinary consumer either prior to or during the consumption of the product, including, but not limited to, any taste or smell relating to chocolate, cocoa, vanilla, honey, fruit, or any candy, dessert, alcoholic beverage, herb, or spice. A public statement or claim, whether express or implied, made or disseminated by the manufacturer of a tobacco, tobacco product, tobacco related device, electronic delivery device, and nicotine or lobelia delivery device , or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such products, that a product has or produces a taste or smell other than tobacco, menthol, mint, or wintergreen, will constitute presumptive evidence that the product is a flavored product. 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 fifty percent (50%) 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 two dollars ($2.00) per cigar. MOVABLE 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 storefront or other permanent type of structure authorized for sales transactions. NICOTINE OR LOBELIA DELIVERY DEVICES: Any product containing or delivering nicotine or lobelia intended for human consumption, or any part of such a product, that is not tobacco as defined in this section, not including any product that has been approved or otherwise certified for legal sale by the United States food and drug administration for tobacco use cessation, harm reduction, or for other medical purposes, and is being marketed and sold solely for that approved purpose. RETAIL ESTABLISHMENT: Any place of business where tobacco, tobacco products, tobacco related devices, electronic delivery device, or nicotine or lobelia delivery devices are available for sale to the general public. The phrase shall include, but not be limited to, grocery stores, convenience stores, restaurants, and drugstores. Ord 522 pg. 3 of 12 SALE: Any transfer of goods for money, trade, barter or other consideration. SELF-SERVICE MERCHANDISING: Open displays of tobacco, tobacco products, tobacco related devices, or nicotine or lobelia delivery devices in any manner where any person shall have access to the tobacco, tobacco products, tobacco related devices, or nicotine or lobelia delivery devices, without the assistance or intervention of the licensee or the licensee's employee. Such assistance or intervention shall involve the actual physical exchange of the tobacco, tobacco product, tobacco related device, electronic delivery device, or nicotine or lobelia delivery devices 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. "Self-service merchandising" shall not include vending machines. SMOKING: Inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated product, whether natural or synthetic, containing, made, or derived from nicotine, tobacco, marijuana, or other plant, that is intended for inhalation. Smoking also includes carrying or using an activated electronic delivery device. TOBACCO OR TOBACCO PRODUCTS: Tobacco and tobacco products includes cigarettes and any product containing, made, or derived from tobacco that is intended for human consumption, whether chewed, smoked, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, or any component, part, or accessory of a tobacco product; cigars; pipe tobacco; snuff, fine cut or other chewing tobacco; cheroots; stogies; perique; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff flour; cavendish; shorts; plug and twist tobaccos; dipping tobaccos; refuse scraps, clippings, cuttings, and sweepings of tobacco, and other kinds or forms of tobacco. Tobacco excludes any tobacco product that has been approved by the United States food and drug administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and is being marketed and sold solely for such an approved purpose. TOBACCO RELATED DEVICES: Any tobacco product as well as a pipe, rolling papers, or other device intentionally designed or intended to be used in a manner which enables the chewing, sniffing, or smoking of tobacco or tobacco products. Tobacco related devices also includes components of tobacco -related devices which may be marketed or sold separately. VENDING MACHINE: Any mechanical, electric or electronic, or other type of self- service device which, upon the insertion of money, tokens or other form of payment, dispenses the tobacco, tobacco product or tobacco related devices and includes vending machines equipped with manual, electric or electronic locking devices. (Ord. 458, 12-3-2013) 3-2-3: LICENSE: -' Ord 522 pg. 4 of 12 A. License Required: No person shall sell or offer to sell any tobacco, tobacco products or tobacco related device, electronic delivery device, or nicotine or lobelia delivery device without first having obtained a license to do so from the city clerk or other such city office which the city council may from time to time designate to carry out the duties of the city clerk set forth in this chapter. B. Application: An application for a license to sell tobacco, tobacco products, tobacco related devices, electronic delivery device, or nicotine or lobelia 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 shall determine that an application is 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 expire on December 31 of the year of issuance. E. Revocation Or Suspension: Any license issued under this section may be revoked or suspended as provided in this chapter. 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. Movable Place Of Business: No license shall be issued to a movable place of business. Only fixed location businesses shall be eligible to be licensed under this section. H. Display: All licenses shall be posted and displayed in plain view of the general public on the licensed property. 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 thirty (30) days but no more than sixty (60) days before the expiration of the current license. Ord 522 pg. 5 of 12 J. Issuance As Privilege And Not A Right: The issuance of a license under this section shall be considered a privilege and not an absolute right of the applicant and shall not entitle the holder to an automatic renewal of the license. K. Smoking Not Permitted: 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, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices is prohibited. L. E -Cigarettes: Smoking of e -cigarettes, or electronic delivery devices as defined herein, is prohibited in any area that Minnesota state statute restricts the smoking of tobacco products - - - - - - - - - - (Ord. 458, 12-3-2013) 3-2-4: LICENSE FEE: No license shall be issued under this chapter until the appropriate license fee is paid in full. The license fee will not be prorated for any applicants. The fee for a license under this chapter shall be set in accordance with a fee schedule adopted by the city council. (Ord. 458, 12-3-2013) 3-2-5: GROUNDS FOR DENIAL OF LICENSE: i Imw°l The following shall be grounds for denying the issuance or renewal of a license under this chapter. The following list is not exhaustive or exclusive: A. The applicant is under the age of eighteen (18) years. B. The applicant has been convicted within the past five (5) 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 delivery devices, or nicotine or lobelia delivery devices. C. The applicant or license holder has had a license to sell tobacco, tobacco products or tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices revoked within the preceding twelve (12) months of the date of application or is subject to penalties under section 3-2-12 of this chapter. D. The applicant or license holder fails to provide any of the information required on the application or provides false or misleading information. E. The applicant or license holder is prohibited by federal, state or other local law, ordinance or regulation from holding such a license. F. The applicant or license holder has outstanding fines, penalties, or property taxes owed to the city. (Ord. 458, 12-3-2013) Ord 522 pg. 6 of 12 3-2-6: PROHIBITED SALES; ILLEGAL ACTS:tj A. Sales Prohibited: 1. It shall be a violation of this chapter for any person to sell, offer for sale, give away, furnish or otherwise deliver tobacco, tobacco products, tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices: a. To any person under the age of eighteen (18) years. b. By means of any type of vending machine. c. By means of self-service merchandising whereby the customer does not need to make a verbal or written request to an employee of the licensed premises in order to receive the tobacco, tobacco product, tobacco related device, electronic delivery device, or nicotine or lobelia delivery device and whereby there is not a physical exchange of the tobacco, tobacco product, tobacco related device, or nicotine or lobelia delivery device between the licensee or the licensee's employee, and the customer. All tobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices shall be stored behind the counter. d. By means of "loosies" as defined in section 3-2-2 of this chapter. e. Containing opium, morphine, jimsonweed, belladonna, 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. f. By any other means, to any other person, in any other manner or form prohibited by federal, state or other local law, ordinance provision or other regulation. B. Flavored products: No person shall sell or offer for sale any flavored product in any retail establishment as defined in section 3-2-2 of this chapter. C. Illegal Acts: Unless otherwise provided, the following acts shall be violations of this chapter: 1 Sales: For any person to sell or otherwise provide any tobacco, tobacco product, tobacco related device, electronic delivery device, or nicotine or lobelia delivery device to a person under 18 years of age. 2. Possession: For any person under 18 years of age to have in his or her possession any tobacco, tobacco product, tobacco related device, or nicotine or lobelia delivery device. This subsection shall not apply to persons under 18 years of age lawfully involved in a compliance check. Ord 522 pg. 7 of 12 3. Use: For any person under 18 years of age to smoke, chew, sniff or otherwise use any tobacco, tobacco product, tobacco related device, or nicotine or lobelia delivery device. 4. Procurement: For any person under 18 years of age to purchase or attempt to purchase or otherwise obtain any tobacco, tobacco product, tobacco related device, or nicotine or lobelia delivery device, and it shall be a violation of this chapter for any person to purchase or otherwise obtain such items on behalf of a person under 18 years of age. It shall further be a violation for any person to coerce or attempt to coerce a person under 18 years of age to illegally purchase or otherwise obtain or use any tobacco, tobacco product, tobacco related device, electronic delivery device, or nicotine or lobelia delivery device. This subsection shall not apply to persons under 18 years of age lawfully involved in compliance checks. 5. False Identification: For any person under 18 years of age 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. 6. Smoking: Notwithstanding any exceptions for tobacco products shops as set forth in the Minnesota Clean Indoor Air Act, no licensee shall directly or indirectly permit smoking in the licensed premises. All licensees under this chapter shall be responsible for the actions of their employees and patrons in regard to any smoking in the licensed premises. (Ord. 458, 12-3-2013) 3-2-7: SELF-SERVICE SALES: t1 It shall be unlawful for a licensee under this chapter to allow the sale of tobacco, tobacco products, tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices by any means whereby the customer may have access to such 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, electronic delivery devices, or nicotine or lobelia delivery device between the licensee or his or her clerk and the customer. All tobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia 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. New retailers selling tobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices commencing business after the effective date hereof shall comply with this section immediately. (Ord. 458, 12-3-2013) 3-2-8: RESPONSIBILITY FOR EMPLOYEES: 41 0 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 delivery devices, or nicotine or lobelia delivery devices on the licensed premises and the sale of such an item by an employee shall be considered a sale by the license holder. (Ord. 458, 12-3-2013) Ord 522 pg. 8 of 12 3-2-9: COMPLIANCE CHECKS AND INSPECTIONS: J All licensed premises shall be open to inspection by city officials during regular business hours. From time to time, but at least once per year, a Mendota Heights police officer or other city employee as designated by the city council shall conduct compliance checks to ensure compliance with the provisions of this chapter. Such compliance checks shall utilize, with the written consent of their parents or guardians, persons over the age of fifteen (15) years but less than eighteen (18) years, to enter the licensed premises to attempt to purchase tobacco, tobacco products, tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices. Persons under 18 years of age used for the purpose of compliance checks shall be supervised by designated law enforcement officers or other designated city personnel. Persons under 18 years of age used for compliance checks shall not be guilty of the unlawful purchase or attempted purchase or the unlawful possession of tobacco, tobacco products, tobacco related devices, or nicotine or lobelia delivery devices when such items are obtained as part of the compliance check. No person under 18 years of age used in compliance checks shall attempt to use a false identification misrepresenting the person under 18 years of age, age, and all persons under 18 years of age lawfully engaged in a compliance check shall answer all questions about the person under 18 years of age, 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 other 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. (Ord. 458, 12-3-2013) 3-2-10: CIVIL ENFORCEMENT: The license holder shall be responsible for the conduct of its agents or employees while they are on the licensed premises. Any violation of this chapter shall be considered an act of the license holder for purposes of imposing a civil penalty, license suspension or revocation. Each violation, and every day in which a violation occurs or continues, shall constitute a separate offense. (Ord. 458, 12-3-2013) 3-2-11: NOTICE OF VIOLATION: J Upon discovery of a suspected violation, the Mendota Heights police department shall inform the city clerk of the suspected violation. The city clerk shall then send to the license holder, by mail, a written notice of the civil violation. The notice shall inform the license holder of the penalty and the license holder's right to request a hearing regarding the violation of this chapter pursuant to section 3-2-13 of this chapter. (Ord. 458, 12-3-2013) 3-2-12: PENALTIES: i A. Licensees: Any licensee found to have violated this chapter or whose employee shall have violated this chapter shall be charged an administrative fine as set forth by State Statute 461.12. Ord 522 pg. 9 of 12 B. Individuals: Individuals found to be selling tobacco to persons under 18 years of age in violation of this chapter shall be charged an administrative fee as set forth by State Statute 461.12. C. Misdemeanor And Other Prosecution: Nothing in this section shall prohibit the city attorney or county attorney from seeking prosecution as a misdemeanor for any violation of this chapter, or from enforcing any other applicable state or federal law or regulation in addition to or instead of any civil enforcement remedy that may be sought under this chapter. D. Penalties Reviewed Annually: Penalties in this section may be annually reviewed and new fine amounts adopted by resolution. (Ord. 458, 12-3-2013) 3-2-13: HEARINGS AND APPEALS:,i A. Request And Time For Hearings: 1. Following receipt of a notice of denial issued under section 3-2-3 of this chapter or a notice of violation and penalty issued under section 3-2-12 of this chapter or a notice of revocation, an applicant or license holder may request a hearing before the hearing officer appointed by the city council, or his/her designee. A request for hearing shall be made by the applicant or license holder in writing and filed with the city clerk within ten (10) days of the mailing of the notice of denial or alleged violation. Following receipt of a written request for hearing, the applicant or license holder shall be afforded an opportunity for a hearing before the hearing officer. 2. If a person accused of violating this chapter so requests, a hearing shall be scheduled, the time and place of which shall be published and provided to the accused violator. 3. Such hearing shall be held before a hearing examiner as determined by the city council and shall be open to the public. B Findings And Actions: If, after the hearing, the applicant or license holder is found ineligible for a license, or in violation of this chapter, the hearing officer may affirm the denial, impose a fine, issue a suspension or revocation, or impose any combination thereof. The decision shall be in writing and set forth the reasons for the findings of the hearing officer. A copy shall be provided to the applicant or license holder. Likewise, if the hearing officer finds that no violation occurred or finds grounds for not imposing any penalty, such findings shall be recorded and a copy provided to the applicant or license holder. C. Decisions: 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 section 3-2-12 of this chapter, shall be recorded in writing. A copy shall be provided to the accused violator. Likewise, if the hearing officer finds that no violation occurred or finds grounds for not imposing any penalty, such findings shall be recorded and a copy provided to the acquitted accused violator. Ord 522 pg. 10 of 12 D. Appeals: Any appeal from the decision of the hearing officer must be filed with the district court within ten (10) days of the mailing of the hearing officer's decision. E. Default: If the applicant or license holder has been provided written notice of the denial or violation and if no request for a hearing is filed within the ten (10) day period, then the denial, penalty, suspension and/or revocation imposed pursuant to this chapter shall take immediate effect by default. The city clerk shall mail the notice of denial, fine, suspension and/or revocation to the applicant or license holder. (Ord. 458, 12-3-2013) 3-2-14: SEVERABILITY 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 2. This Ordinance shall be in effect from and after September 1, 2018. Adopted and ordained into an Ordinance this 15th day of May, 2018. CITY COUNCIL CITY OF MENDOTA HEIGHTS Neil Garlock, Mayor ATTEST Lorri Smith, City Clerk Ord 522 pg. 11 of12 CITY OF MENDOTA HEIGHTS SUMMARY PUBLICATION OF ORDINANCE NO. 522 AMENDING CITY CODE SECTION 3-2 TOBACCO SALES The City Council of the City of Mendota Heights, MN ordains: The City of Mendota Heights Code of Ordinances, Title 3, Chapter 2, Tobacco Sales is hereby amended to prohibit the sale flavored tobacco in any licensed tobacco establishment in Mendota Heights. This includes any tobacco product, tobacco -related device, electronic delivery device, or nicotine or lobelia delivery product that contains a taste or smell, other than the taste or smell of tobacco, menthol, mint or wintergreen. The ordinance will take effect on September 1, 2018. The complete text of this ordinance may be obtained at the city hall or from the City's website at www.mendota-heights.com. Adopted this 15th day of May, 2018. CITY COUNCIL OF MENDOTA HEIGHTS /s/ Neil Garlock, Mayor Attest: /s/ Lorri Smith, City Clerk Ord 522 pg. 12 of 12