ORD 333 Regulating Sale of TobaccoCITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
ORDINANCE NO. 333
AN ORDINANCE AMENDING ORDINANCE NO. 602
The City Council of the City of Mendota Heights hereby ordains as follows:
Section 1. Ordinance No. 39 (Codified as Ordinance No. 602), "AN ORDINANCE
LICENSING AND REGULATING THE SALE OF CIGARETTES" is hereby amended
in its entirety so that as amended it shall read as follows:
AN ORDINANCE LICENSING AND REGULATING THE SALE, POSSESSION AND
USE OF TOBACCO, TOBACCO PRODUCTS AND TOBACCO RELATED DEVICES
The City of Mendota Heights ( "City ") hereby establishes an ordinance relating to the
sale, possession and use of tobacco, tobacco products and tobacco or related devices in
the City and to reduce the illegal sale, possession and use of such items to and by minors.
Section 100. 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 and tobacco related devices, and such sales, possession and use are violations of
both state and federal laws; 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 ordinance shall be intended to regulate the sale, possession and use of
tobacco, tobacco products and tobacco related devices for the purpose of enforcing and
furthering existing laws, to protect minors against the serious effects associated with the
illegal use of tobacco, tobacco products and tobacco related devices, and to further the
official public policy of the State of Minnesota in regard to preventing young people from
starting to smoke as stated in Minnesota Statutes, Section 144.391.
Section 200. Definitions and Interpretations. 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:
Subd. 1 Tobacco or Tobacco Products. "Tobacco" or "Tobacco Products" shall
mean any substance or item containing tobacco leaf, including but not limited to,
cigarettes; cigars; pipe tobacco; snuff, fine cuto or other chewing tobacco;
cheroots; 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 of forms of tobacco leaf prepared in such a manner as to be
suitable for chewing, sniffing or smoking.
Subd. 2 Tobacco Related Device. "Tobacco Related Device" shall mean 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.
Subd 3 Self Service Merchandisin,. "Self Service Merchandising" shall mean
open displays of tobacco, tobacco products or tobacco related devices in any
manner where any person shall have access to the tobacco products or tobacco
related 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 or tobacco related device
between the customer and the licensee or employee. Self service merchandising
shall not include vending machines.
Subd. 4 Vending; Machine. "Vending Machine" shall mean any mechanical,
electric or electronic, self service device which upon the insertion of money,
tokens or other form of payment dispenses tobacco products and includes vending
machines equipped with manual, electric or electronic locking devices.
Subd 5 Individually Packaged. "Individually Packaged" shall mean 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 subdivision shall not be considered individually packaged.
Subd. 6 Loosies. " Loosies" shall mean the common term used to refer to a single
or individually packaged cigarette.
Subd. 7 Minor. "Minor" shall mean any person who has not yet reached the age
of eighteen (18) years.
Section 300 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
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 ordinance.
Section 400. Fees. No license shall be issued under this ordinance until the appropriate
license fee is paid in full. The fee for a license under this ordnance shall be set in
accordance with a fee schedule adopted by the City Council.
Section 500. Basis for Denial of License. The following shall be grounds for denying
the issuance or renewal of a license under this ordinance. The following list is not
exhaustive or exclusive.
A. The applicant is under the age of eighteen (18) years.
B. The applicant or license holder has had a license to sell tobacco,
C. tobacco products or tobacco related devices revoked within the preceding
twelve (12) months of the date of application or is subject to penalties under
section 1300.
C. The applicant or license holder fails to provide any information required on
the application or provides false or misleading information.
D. The applicant or license holder is prohibited by federal, state or other local
law, ordinance or regulation from holding such a license.
E. The applicant or license holder has outstanding fines, penalties, or property
taxes owed to the City.
Section 600. Prohibited Sales..
1. It shall be a violation of this ordinance for any person to sell, offer for sale, give
away, furnish or otherwise deliver tobacco, tobacco products or tobacco related
devices:
A. To any person under the age of eighteen (18) years.
B. It shall be unlawful for any person licensed under this ordinance to allow
the sale of tobacco, tobacco products or tobacco related devices by the
means of vending machine unless minors are at all times prohibited from
entering the licensed establishment.
C. By means of a self service merchandising whereby the customer does not
need to make a verbal or written request to an employee of the licensed
premise in order to receive the tobacco, tobacco product or tobacco related
device and whereby there is not a physical exchange of the tobacco,
tobacco product or tobacco related device between the licensee or the
licensee's employee and the customer. All tobacco related products shall
be stored behind the counter.
D. By means of loosies as defined in Section 200 of this ordinance.
E. 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.
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.
2. Exception. This subdivision shall not apply to retail stores which derive at least 90%
of their revenue for tobacco and tobacco - related products and which can not be
entered at any time by persons younger than 18 years of age.
Section 700. Self Service Sales. It shall be unlawful for a licensee under this ordinance
to allow the sale of tobacco, tobacco products or tobacco related 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 or tobacco related device between the licensee
or his or her clerk and the customer. All tobacco, tobacco products and tobacco related
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 or tobacco related devices at the
time this ordinance is adopted shall comply with this section within ninety (90) days.
New retailers selling tobacco commencing business after the adoption of this ordinance
shall comply with this section immediately.
Section 800. 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.
Section 900. Compliance Checks and Inspections. 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 ordinance. Such compliance checks shall utilize, with the
written consent of their parents or guardians, minors over the age of fifteen (15) years but
less than eighteen (18) years, to enter the licensed premise to attempt to purchase
tobacco, tobacco products or tobacco related devices. Minors used for the purpose of
compliance checks shall be supervised by designated law enforcement officers or other
designated city personnel. Minors used for compliance checks shall not be guilty of the
unlawful purchase of attempted purchase or the unlawful possession of tobacco, tobacco
products or tobacco 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 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 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.
Section 1000. Illegal Acts. Unless otherwise provided, the following acts shall be a
violation of this ordinance.
Subd. 1 Illegal Sales. 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 a minor.
Subd 2 Illegal Possession. It shall be a violation of this ordinance for any minor
to have in his or her possession any tobacco, tobacco product or tobacco related
device. This subdivision shall not apply to minors lawfully involved in a
compliance check.
Subd. 3 Illegal Use. 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, and 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
further be a violation for any person to coerce or attempt to coerce a minor to
illegally purchase or otherwise obtain any tobacco, tobacco product or tobacco
related device. This subdivision shall not apply to minors lawfully involved in
compliance checks.
Subd. 4 Use of False Identification. It shall be a violation of this ordinance 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.
Section 1100. 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 Ordinance 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.
Section 1200. Violations.
Subd. 1 Notice. 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 the ordinance
pursuant to section 1400.
Section 1300. Penalties
Subd. 1. Licensees. Any licensee found to have violated this ordinance or whose
employee shall have violated this ordinance, shall be charged an administrative
fine as set forth below:
a. First Violation. The first violation of this ordinance shall be punishable by
a civil penalty of $75.00.
b. Second Violation. The second violation of this ordinance shall be
punishable by a civil penalty of $200.00 for a second offense and a one
day suspension of license where the second violation occurs at the same
licensed premises as the first violation, within a twenty -four month period.
C. Third or Subsequent Violations. The third violation of this ordinance shall
be punishable by a civil penalty of $250.00 for a third or subsequent
offense at the same location within a twenty -four month period. In
addition, after the third offense, the license shall be suspended for not less
than seven days.
Subd. 2 Other Individuals. Individuals found to be selling tobacco to minors in
violation of this ordinance shall be charged an administrative fee of $50.00.
Subd. 3 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 ordinance, 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 ordinance.
Section 1400. Hearings and Appeals.
a. General. Following receipt of a notice of denial issued under section 300
or a notice of violation and penalty issued under section 1300 or a notice
of revocation, an applicant or license holder may request a hearing before
the appointed hearing officer 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 desired 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.
b. Findings. If after the hearing the application license holder is found
ineligible for a license, or in violation of this ordinance, the hearing officer
may affirm the denial, impose a fine, issue a suspension or revocation, or
impose any combination therefore. 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. Decision. 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 under Section 1300
of this ordinance, 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.
d. 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 ordinance 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.
e. Hearings. If a person accused of violating this ordinance so requests, a
hearing shall be scheduled, the time and place of which shall be published
and provided to the accused violator.
f. Hearing Officer. Such hearing shall be held before a hearing examiner as
determined by the City Council and shall be open to the public.
g. Appeals. Any appeal of 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.
Section 1500. Exceptions and Defenses.
Subd 1 Religious, Spiritual or Cultural Ceremony. Nothing in this ordinance
shall prevent the providing of tobacco, tobacco products or tobacco related
devices to a minor as part of a lawfully recognized religious, spiritual or cultural
ceremony.
Subd 2 Reliance on Proof of Age. 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 law.
Section 1600. Severbility and Savings Clause. If any section or portion of this ordinance
shall be found unconstitutional or otherwise invalid or unenforceable by a court of
competent jurisdiction, that finding shall not serve as an invalidation or effect the validity
and enforceability of any other section or provision of this ordinance.
Section 1700. Effective Date. This Ordinance shall take effect from and after its
publication according to law.
Adopted by the City Council of the City of Mendota Heights this Twentieth day of July,
1999.
CITY COUNCIL
CITY OF MENDOTA HEIGHTS
Charles E. Mertensotto
Mayor
ATTEST:
Kathleen M. Swanson
City Clerk