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Trevor Kathy Glanzer From: Trevor S. Oliver [toliver @kellyandlemmons.com] Sent: Thursday, February 17, 2011 2:13 PM To: Kathy Glanzer Cc: Joel Hanson; pkelly @kellyandlemmons.com Subject: FW: Tobacco shops Kathy Thanks for the reminder call today. After talking with you and with Joel earlier in the week, I've given more thought to the 'accessories" issue raised by these new proposed tobacco stores. I passed over this matter quickly in the last e-mail because I don't believe we have any ability to develop and enforce our own definition of "drug paraphernalia" different from the definition given that term in Chapter 152 of Minnesota Statutes (drug laws). We also face a practical issue in enforcement here, given that there is no functional difference between pipes and accessories legally sold and used for tobacco and those used for the smokable byproducts of other kinds of plants, legal or otherwise. Thinking about it, we may be able to get at this issue through the two -tier tobacco license I suggested in my earlier e -mail. My rough idea of this market is that there are stores who wish to sell tobacco, mainly cigarettes, as a convenience product for their customers; the other side of the market is composed of stores where tobacco and tobacco related items (with or without the wink and nudge) are the sole focus of the business. Gas stations, drug stores and grocery stores would seem to only need the ability to sell prepackaged, boxed tobacco products such as cigarettes, chewing tobacco, small cigars and similar items. If the lower -tier license is limited to these things, it could eliminate things like the "consignment box" of pipes and other borderline paraphernalia at one gas station that has drawn complaints. It seerns we could have a lower -tier license aimed at these establishments, where the primary enforcement concern is preventing sales to minors. The City could then have a second tier of license for the "tobacconist" that includes following some new City regulations on hours, uses and possibly product lines. Through the license, the City could seek to exclude certain products, limit the total display space allocated to pipes and accessories, require that the sale of actual tobacco make up 80 or 90 percent to total quarterly revenue, or a similar limitation. 3 minimum requirement for any new regulation is to identify a tangible health, safety or welfare matter that justifies the regulation. ..ere, the City can't re- define "drug paraphernalia," but all the other relevant statutes (Ch 461, tobacco licensing; Ch 144 on the smoking ban) appear to invite concurrent local regulation that is either consistent with or more restrictive than state law. The City has a freer hand in developing regulations that apply to licensees than it does in developing punitive laws that apply to the general public both in terms of what the City can regulate and the range of penalties that may be imposed for violation. Every regulation, however, will be scrutinized for its relation to the public safety issue at hand or whether there is really a public safety issue at all. I've started a search for any studies that would flesh out the need for and usefulness of any potential regulations. It seems that our main concern is of the secondary effect of a tobacco store that appeals too heavily to customers who are not necessarily interested in tobacco. The handful of secondary effect studies on adult bookstores and the like are cited as the primary support for almost every city's adult use restrictions. It's not clear whether any such study has been done on this kind of establishment. This is not the only way to justify a regulation, of course, but the City would be well- served to have some hard data or studied conclusions on hand when drafting a set of business restrictions. Trevor S. Oliver Attorney at Law Kelly Lemmons, P.A. 651.224.3781 www.kellyandlemmons.com