04-13-11 Council Agenda - Laserfiche WebLink

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Kelly & Lemmons, I.A. A T ] O R N E Y S AT LAW o Trevor S. Oliver toliver@kellyandlemmons.com April 7, 2011 To: Little Canada City Council Re: Proposed Tobacco Ordinance Amendments 1 have submitted to you a draft ordinance amendment to create a two -tier licensing structure for tobacco sales in the City. The primary reason for the amendment to our tobacco ordinance is that the State's indoor smoking ban is not as specific as it should be, leaving it to local regulation to fill in those gaps. As you review this draft, I want to point out where the provisions come from, as many of them are very open to change at the Council's discretion. In Section 1, the "tobacco store" definition is intended to mirror the definition in state law, as the "sampling" exception to the smoking ban relies on the definition. The definition is changed slightly to adjust for the change I have proposed to "tobacco - related device." There, I've proposed taking lighters out of " tobacco- related devices" in order to allow their sale by all licensees — a feature of the two -tier system is that pipes and other "devices" are limited to the dedicated tobacco shops. 1 don't believe that this change will affect the City's current licensees (it's not my impression that gas stations sell many pipes), but it may be a sensitive issue that needs adjustment. The "sampling" definition is at the heart of this amendment, as the Legislature has written in an exception to the smoking ban for "sampling" but failed to define it. There doesn't seem to be an obvious answer to what it means to "sample" tobacco in the store, either. The ambiguity leads to some opportunistic interpretation, such as using a "sampling" exception to justify a hookah bar. I propose a 2- minute guideline because: a) it can cover a variety of products; b) it appears to he easier to enforce by observation than any quantity -based standard, and c) it seems like the hest fit with the statute's intent, which is to allow a tobacconist some tools to help sell products without becoming a "destination" for indoor smoking. On the other hand, "sampling" allowed at liquor stores under State law is based upon quantity of product, and tobacco may also lend itself to a quantity -based sample regulation. I want to stress that the definition is the City's to develop, and can be set with any terms that make sense to the Council. I wrote this ordinance amendment to follow the lead of the state smoking ban, but it is also true that the smoking ban does not pre -empt any local regulations that are similar or more restrictive. Accordingly, I believe it is also an option for the Council to adopt a rule barring all tobacco licensees from offering "sampling," even at the dedicated tobacco stores. It seems that there are good reasons to allow in -store sampling, properly done, and allowing it would mirror the rules that apply to liquor stores, which is in large part the model for this amendment. Whether to do so is a matter that the Council may discuss. 200 CROSSROADS, 7300 HUDSON BOULEVARD n SAINT PAUL, MINNESOTA 55128 TELEPHONE 651 -224 -3781 FACSIMILE 651-223-8019 www.kellya ndlem mons.com 1