01-25-2012 Council Workshop Minutes

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MINUTES CITY COUNCIL JANUARY 25, 2012 indicated that Minneapolis was immediately sued by a hookah - lounge owner with the lawsuit taking aim at the ban on "providing devices" which has significantly greater impact on hookahs and water pipes than it does on cigars. The City Attorney felt that the Minneapolis ordinance could be rewritten to take out the possible discrepancy between hookahs and other forms of tobacco, by focusing less on the object and more on the commercial transaction. The Attorney reviewed his proposed modifications of the Minneapolis provision as outlined on page 3 of his report. The Attorney noted that by preventing a store from charging for samples and also prohibiting the smoking of purchased items, the City no longer has to define sample sizes. Blesener asked about the impact to cigar stores. The City Attorney reported that the Minneapolis ordinance allows cigar stores to continue. The Attorney indicated that under his language, the store owner could only offer small segments or loose leafs for the purpose of sampling. This is not a complete ban on indoor smoking or the lighting of tobacco, but tries to get back to the practice of sampling just like any other product. McGraw noted that the MN Department of Health says any indoor smoking is a violation of State Statute except for "the lighting of tobacco in a tobacco products shop" subject to the meeting of certain criteria as laid out in MN Statutes 144.4167. McGraw stated that it appears the intent was not to allow for the smoking of samples that are charged for. McGraw felt that the State Statute should be amended to address this loophole. The City Attorney noted that the MN Department of Health indicates in their November 2, 2011 letter that because of the impediments to enforcement of this State Law, local municipalities play a big role in determining whether establishments can allow smoking in their jurisdictions. He also noted that the State Law does not define sampling. McGraw asked if there were any pending court cases that night define sampling. The City Attorney was not aware of any. McGraw asked if any communities that have outright banned sampling been sued. The City Attorney indicated that Minneapolis and Moorhead have been sued. The Cities of St. Anthony, St. Cloud, Bloomington, and others have banned sampling as well. Blesener noted that Mounds View has banned sampling, but grandfathered in existing businesses. The City Attorney replied that that was correct, but he was not aware of any other cities that have taken this approach. The City Attorney reported that cities have the authority to ban sampling. One of the reasons to grandfather an existing business, however, is to avoid a protracted effort to make the ban go into effect. McGraw asked if a business would have a 3