09-10-1997 Council Agenda - Laserfiche WebLink

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What the new state tobacco law means for cities Kent Sulem The new state tobacco law (Ses- sion Law Chapter 227), which be- comes effective August 1, will require all retailers who sell tobacco or to- bacco products to be Iicensed..Cbuii4 tresNtill,be, required toa implement a h-„ .:@ eensing'systemzfor retailerstlocated.'rr cities oc tewnshp& that do not haves valid. licensingtordinances. Any city wishing to maintain local control over tobacco sales will need to adopt a li- censing ordinance, and any city that already has a licensing ordinance will need to amend it to comply with at - least the minimum standards imposed by the new law. While the new law becomes effec- tive August 1, there is no provision that sets an absolute deadline as to when the license must be issued. Cit- ies, therefore, are free to adopt a li- censing ordinance after August 1. Given the length of time it takes to de- velop and adopt licensing ordinances. it is likely that many counties will still be adopting their ordinances after that date. If, however, a city acts after a county license has been issued, it would be advisable to coordinate the licensing schedule with the county to avoid unnecessary challenges by retail- ers over any attempt to double license. Further, after August 1, cities will be required to give general notice of the intent to adopt or amend a tobacco or- dinance, and will be required to pro- vide retailers who sell tobacco or to- bacco products with 30 days mailed notice of the time, place, and subject matter of the meeting where the pro- posed tobacco ordinance or amend- ment will be introduced. Any city ordinance adopted or amended to maintain local control over tobacco sales will need to contain at least the following provisions, but could also be made more restrictive: An administrative penalty system. While misdemeanor prosecu- tion will remain an option for ordi- nance enforcement, and misdemeanor and gross misdemeanor prosecutions will remain options for violations of tobacco laws it is clear that the new taw intends for local governments to establish a system where an alleged,, violator has the right to be heard: - `.,, befote:a designated hearing officer or paner(which could be the city coun cil)t'and a. fine will be imposed for: a violating the local regulations. - Minimum fines`are set as follows: Licensee - 375, 5200, 5250 respec- tively for first, second, and third violations within a twenty -four month period by any license holder or his or her employee; Clerk - $50. As admin- istrative penalties have generally not been considered punishment for the purposes of double jeopardy, it may be possible to impose an administrative fine while also seeking criminal prosecution. Cities should obtain legal advice before attempting to do so as it may not be worth the effort to seek both simultaneously. Penalty for minors. Although it will remain a petty misdemeanor for a minor to use or possess tobacco, the city, after consulting with interested educators, parents, children, and court officials, is to establish an alternative penalty system for minors who violate or are found in the unlawful possession of tobacco or tobacco products. Mandatory compliance check(s). The city will need to conduct at least one unannounced compliance check per licensed establishment per year. Compliance checks are to be done using minors over the age of 15 years but under 18 years, with the consent of their parents or guardians, who attempt to purchase tobacco. Prohibition on vending, machine) sales, unless minors are at all times prohibited from entering the li- censed establishment. (Note: Con- trary to popular belief, minors are not prohibited by law from entering liquor establishments. Such an establishment, could, however, adopt its own policy prohibiting minors from entering.) Prohibit self - service sales of individual cigarette packages until such time as the FDA regulations on self- service sales take effect (August 28, 1997 pending outcome of Federal lawsuit) at which time all self- service sales must be prohibited. Self - service sales will be allowed in establishments where minors are prohibited from entering and that derive at least 90 percent of their revenue from the sale of tobacco and tobacco products. The new law specifically autho- rizes cities to impose a licensing fee sufficient to cover the estimated costs of enforcing the above provisions. The law also contains provisions requiring the disclosure of the existence of cer- tain ingredients, and authorizes the suspension of a minor's driver's li- cense (or eligibility to receive one) for certain violations, but these provisions are not likely to have an impact on lo- cal ordinances. The League has revised its model tobacco ordinance to help cities corn - ply with the new state law and the FDA regulations. Copies of the revised ordinance can be obtained by calling the League at (612) 281 -1200. In addi- tion, the League is in the process of working with a group to develop a comprehensive compliance guide and training program. It is hoped that this guide and the training workshops will be available in mid - September. Finally, cities may hear that the recently announced proposed federal settlement to tobacco- related lawsuits will have an impact on local ordi- nances and that it may be best to wait to adopt local regulations. This is not true for several reasons. First, the settlement is only a proposed settle- ment. Before it could take effect, Con- gress would have to adopt legislation that the President would then need to sign. At the current time no legislation has been drafted and it is not clear when or if it will be drafted. Second, with the possible exception of who will issue licenses, the proposed settle- ment does not appear to limit a local government's right to regulate tobacco sales. Last, because the new Minnesota law will take effect before any federal legislation is likely to be drafted let alone adopted, cities will need to re- spond to the new state requirements or be willing to forfeit control of tobacco sales to the counties. 1< July 2, 1997 Page 7 Page 26