01-25-2012 Council Agenda - Laserfiche WebLink

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Any smoking allowed under this exemption shall be prohibited if the license holder loses the license or transfers title to, relinquishes management or control of, or sells the business to any other individual or business entity." Note that the grandfathering in this draft is limited to the individual business owner, and is not transferrable. The exemption ends at the time the current owner decides to get out of the business. 4. Restrictive definition & rrandfather In similar fashion to #3, the City can choose to exempt currently established businesses from some or all of the new restrictions. Since the ordinance would allow smoking in limited circumstances, the grandfathering provision in this case would be slightly different, either just flatly exempting a current licensee from the restriction, or explicitly allowing the store to charge customers for one or more of the activities banned in the example above. 5. No new regulation /tacit approval (Columbia Heights, St. Paul). The clear implication (so far) of not doing anything to specifically address "sampling" is that several tobacco businesses will establish smoking lounges. Again, my opinion, as well as MDH's opinion, is that this practice violates the State law banning indoor smoking. However, with no assistance from the Department of Health in terms of regulations, or other outside definition of "sampling," enforcement of the law would likely become a test case, certain to go to the Court of Appeals or Supreme Court before getting resolved. Earlier attempts to use the "theatrical production" exemption to the smoking ban relied on an even more tenuous argument, but required a decision by the state's appellate courts to be fully resolved. Dealing with the State statute on its own terms is possible, but expensive. It is also potentially expensive for the store involved, but there seems to be much more willingness to pool resources on the business side for a "test case" than there is on the enforcement side (if we initiated enforcement, our litigation expenses would likely not be covered by insurance, unless the store counter- sued). Thus, it's not surprising that cities which haven't banned "sampling" altogether so far appear to be tolerant of the smoking lounges at tobacco stores in their city. B. Hours of operation The hours of operation are clearly necessary if sampling is allowed in any form that encourages social gatherings. This is similar to the other types of businesses with significant customer traffic which the City or State requires to stick to prescribed hours. The City has full authority to set reasonable operating hours for any licensed activity. 5 6