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HomeMy WebLinkAbout2022.01.03 ORD 2022-511 Amended Tobacco for T21ORDINANCE 2022-511 AN ORDINANCE AMENDING CHAPTER 38 — HEALTH AND HUMAN SERVICES, ARTICLE III TOBACCO, TO ALIGN WITH THE FEDERAL T21 LAWS AND MN STATE STATUTE 461.12 A new state law reinforces a federal law enacted December, 2019, raising the minimum tobacco sales age from 18 to 21. In addition, the law provides several changes in penalties related to the sale of tobacco products to people under 21 and the process by which a city enforces tobacco licensing requirements. Cities that license tobacco retailers must comply with the new law and adjust their enforcement practices accordingly. THE CITY OF HUGO ORDAINS: Section 1. The City Council of the City of Hugo does hereby amend Chapter 38, Article III, to revise the following sections of Chapter 38 HEALTH AND HUMAN SERVICES, ARTICLE III, TOBACCO, to read as follows: Sec. 38-44. Purpose. Because the city recognizes that many persons under the age of 21 years purchase or otherwise obtain, possess and use tobacco, tobacco products tobacco -related devices, and nicotine or lobelia delivery devices, and because studies, which the city hereby accepts and adopts, have shown that most smokers begin smoking before they have reached the age of 21 years and that those persons who reach the age of 21 years without having started smoking are significantly less likely to begin smoking; and because smoking has been shown to be the cause of several serious health problems which subsequently place a financial burden on all levels of government; this article shall be intended to regulate the sale, possession, and use of tobacco, tobacco products, tobacco -related devices, and nicotine or lobelia delivery devices for the purpose of enforcing and furthering existing laws, to protect persons under the age of 21 against the serious effects associated with the illegal use of tobacco, tobacco products, tobacco -related devices, and nicotine or lobelia delivery devices, and to further the official public policy of the state in regard to preventing young people from starting to smoke as stated in Minn. Stats. § 144.391. Sec. 38-46. Exceptions and defenses. Nothing in this article shall prevent the providing of tobacco, tobacco products, or tobacco - related devices to a person under the age of 21 as part of a lawfully recognized religious, spiritual or cultural ceremony. It shall be an affirmative defense to the violation of this article for a person to have reasonably relied on proof of age as described by state law. Sec. 38-47. Violations and penalties. (a) Criminal penalty. Any person, firm or corporation violating any of the provisions of this article shall be guilty of a misdemeanor unless otherwise noted. Ordinance 2022-511 Tobacco Ordinance - Revised Page 2 of 5 (b) Civil penalty. The provisions of chapter 42, article II, shall apply to any and all licenses issued hereunder. If a licensee or employee of a licensee sells, gives, or otherwise furnishes tobacco, tobacco -related devices, electronic delivery devices, or nicotine or lobelia delivery products to a person under the age of 21 years, or violates any other provision of this article, the licensee shall be charged an civil penalty. If a retail establishment has its tobacco license suspended pursuant to a hearing conducted under the provisions of chapter 42, article II, that retail establishment shall, during the period of suspension, remove all tobacco, tobacco products and tobacco -related devices, and nicotine or lobelia delivery devices away from public view. (c) Schedule of offenses and penalties. Penalties pursuant to state statutes. Civil penalties shall be in the amount set forth in the fee schedule. This amount shall be calculated as against all offenses occurring within a 36-consecutive month period from the date of the most recent violation. Any violation having occurred beyond 36 consecutive months prior to the most recent violation shall not be counted in terms of imposing the fee. Fines shall be paid within 60 days of the time of issuance of the notice. The penalty shall be made payable to "The City of Hugo" and may be paid in person or by mail. (d) Alternative Penalties. Law enforcement and court system representatives shall consult, as applicable, with interested persons, including but not limited to parents, guardians, educators, and persons under the age of 21 years, to develop alternative civil penalties for persons under the age of 21 years who violate this article. Consulting participants shall consider a variety of alternative civil penalties including but not limited to tobacco -free education programs, community service, court diversion programs, and tobacco cessation programs, and for persons under the age of 18 years, notice to schools and to parents or guardians. Alternative civil penalties developed under this subdivision shall not include fines or monetary penalties. Sec. 38-49. Compliance checks and inspections. All licensed premises shall be open to inspection by the city police, county sheriff s officers or other authorized city official during regular business hours. From time to time, but at least once per year, the city shall conduct compliance checks by engaging persons at least 17 years of age, but under the age of 21, to enter the licensed premises to attempt to purchase tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices. Persons used for the purpose of compliance checks shall not be guilty of unlawful possession of tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices when such items are obtained as a part of the compliance check. Sec. 38-50. Prohibited sales. It shall be a violation of this article for any person to sell or offer to sell any tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery devices: (1) To any person under the age of 21 years. (2) By means of any type of vending machine. This subsection does not apply to vending machines in facilities that cannot be entered at any time by persons younger than 21 years of age. Ordinance 2021- Tobacco Ordinance Revisions Page 3 of 5 (3) As a single package of cigarettes or smokeless tobacco in open displays that are accessible to the public without the intervention of a store employee. (4) By means of "loosies" as defined in section 38-45 of this article. (5) Containing opium, morphine, jimson weed, belladonna, strychnos, cocaine, marijuana, or other type of a deleterious, hallucinogenic, or toxic or controlled substance, except nicotine, and not naturally found in tobacco or tobacco products. (6) By any other means or to any other person, prohibited by federal, state or other local law, ordinance provision, or other regulation. Sec. 38-52.Other illegal acts. Unless otherwise provided, the following acts shall be a violation of this article but not considered a misdemeanor offence. Violation of this section will result in alternative penalties as stated in Section 38-47: (1) Illegal possession. It shall be a violation of this article for any person under the age of 21 to have in his or her possession any tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery devices. This subsection (1) shall not apply to persons lawfully involved in a compliance check on behalf of the city. (2) Illegal use. It shall be a violation of this article for any person under the age of 21 to smoke, chew, sniff, or otherwise use any tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery devices. (3) Illegal procurement. It shall be a violation of this article for any person under the age of 21 to purchase or attempt to purchase or otherwise obtain any tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery devices and it shall be a violation of this article for any person to purchase or otherwise obtain such items on behalf of a person under the age of 21. It shall also be a violation of this article for any person to sell or otherwise provide any tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery device to any person under the age of 21, and it shall further be a violation for any person to coerce or attempt to coerce a person under the age of 21 to illegally purchase or otherwise obtain or use any tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery devices. This subsection (3) shall not apply to persons under the age of 21 lawfully involved in a compliance check on behalf of the city. (4) Use of false identification. It shall be a violation of this article for any person under the age of 21 to attempt to disguise his or her true age by the use of a false form of identification, whether the identification is that of another person or one on which the age of the person has been modified or tampered with to represent an age older than the actual age of the person. This subsection (4) shall not apply to persons under the age of 21 lawfully involved in a compliance check on behalf of the city. Sec. 38-53. Signage. Anyone holding a tobacco license under the provisions of this article shall post and display in plain view of the general public on the licensed premises a sign indicating that it is illegal to Ordinance 2021- Tobacco Ordinance Revisions Page 4 of 5 sell tobacco, tobacco products, tobacco -related devices, and nicotine or lobelia delivery devices to anyone under the age of 21 years. Sec. 38-80. License. No sales or offers to sell any tobacco, tobacco products, tobacco -related device, or nicotine or lobelia delivery device shall be done without first having obtained a license to do so from the city. (1) Application. An application for a license to sell tobacco, tobacco products, tobacco - related devices, or nicotine or lobelia delivery devices shall be made on a form provided by the city. The application shall contain the full name of the applicant, the applicant's residential and business addresses and telephone numbers, the name of the business for which the license is sought, and any additional information the city deems necessary. Upon receipt of a completed application, the city clerk shall forward the application to the council for action at its next regularly scheduled council meeting. If the clerk shall determine that an application is incomplete, he shall return the application to the applicant with notice of the information necessary to make the action complete. (2) Action. The council may either approve or deny the license, or it may delay action for such reasonable period of time as necessary to complete any investigation of the application or the applicant it deems necessary. If the council shall approve the license, the clerk shall issue the license to the applicant. If the council denies the license, notice of the denial shall be given to the applicant along with notice of the applicant's right to appeal the council's decision. (3) Term. All licenses issued under this article shall be valid for one calendar year, or remainder of year, to expire December 31 of each year. (4) Revocation or suspension. Any license issued under this division may be revoked or suspended as provided in the violations and penalties section, 38-47 of this article. (5) Transfers. All licenses issued under this article shall be valid only on the premises for which the license was issued and only for the person to whom the license was issued. No transfer of any license to another location or person shall be valid without the prior approval of the council. (6) Moveable place of business. No license shall be issued to a moveable place of business. Only fixed location businesses shall be eligible to be licensed under this division. (7) Display. All licenses shall be posted and displayed in plain view of the general public on the licensed premises. (8) Renewals. The renewal of a license issued under this section shall be handled in the same manner as the original application. The request for a renewal shall be made at least 30 days but no more than 60 days before the expiration of the current license. The issuance of a license issued under this division shall be considered a privilege and not an absolute right of the applicant and shall not entitle the holder to an automatic renewal of the license. 4 Ordinance 2021- Tobacco Ordinance Revisions Page 5 of 5 Sec. 38-81. Fees. No license shall be issued under this article until the appropriate license fee shall be paid in full. Fees shall be set from time to time by the city council. Sec. 38-82. Basis for denial of license. The following shall be grounds for denying the issuance or renewal of a license under this division, and if a license is mistakenly issued or renewed to a person, it shall be revoked upon the discovery that the person was ineligible for the license under this article: (1) Underage. The applicant is under the age of 21 years. (2) Prior conviction. The applicant has been convicted within the past five years of any violation of a federal, state, or local law, ordinance provision, or other regulation relating to tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices. (3) Prior revocation. The applicant has had a license to sell tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices revoked, in this city or at any other place, within the preceding 12 months of the date of application. (4) Information lacking, false or misleading. The applicant fails to provide any information required on the application, or provides false or misleading information. (5) Otherwise prohibited. The applicant is prohibited by federal, state or other local law, ordinance, or other regulation, from holding such a license. Section 2. Severabilit . In the event that a court of competent jurisdiction adjudges any part of this Ordinance to be invalid, such judgment shall not affect any other provision of this Ordinance not specifically included with that judgment. Section 3. Effective Date. This amendment shall take effect upon its passage and publication. ADOPTED by the City Council this 3rd day of Janu ATTEST: om Weidt, Mayor Michele Lindau, City Clerk 5 AFFIDAVIT OF PUBLICATION STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY ) Carter Johnson, being first duly sworn, on oath states as follows: 1. I am the publisher of the THE CITIZEN, or the publisher's designated agent. I have personal knowledge of the facts stated in this Affidavit, which is made pursuant of Minnesota Statutes §331A.07. CITY OF HUGO 2. The newspaper has complied with all of the requirements to constitute a SUMMARY ORDINANCE 2022-511 NOTICE: THIS PUBLISHED MATERIAL IS ONLY A SUMMARY OF AN qualified newspaper under Minnesota law, including those requirements ORDINANCE OF THE CODE OF ORDINANCES FOR THE CITY OF HUGO. THE FULL TEXT OF THE ORDINANCE IS AVAILABLE FOR PUBLIC IN - found in Minnesota Statutes §331A.02. SPECTION AT THE HUGO CITY HALL DURING REGULAR BUSINESS HOURS. 3. The dates of the month and the year and day of the week upon which the Y Y p SUMMARY OF AMENDED TOBACCO ORDINANCE: CHAPTER 38-HEALTH AND HUMAN SERVICES, ARTICLE III TOBAC- public notice attached was published in the newspaper are as follows: CO, has been revised to align with MN State Statute 461.12 by raising the minimum tobacco sales age from 18 to 21, changing penalties related to the Once a week, for one week, it was published on Thursday, the 13th day sale of tobacco products to people under 21, and amending the process by which the City enforces underage tobacco use and tobacco licensing require- of January, 2022. ments. Please note this title and summary of this Ordinance clearly informs the public of the intent and affect of the Ordinance and conforms to Minn. Stat. § 4. The publisher's lowest classified rate paid by commercial users for 412.191. This Ordinance shall be effective the date that it is published. comparable space, as determined pursuant to 331A.06, is as follows: P P P § The amended ordinance is available at City Hall for review. Passed and adopted by the City Council of the City of Hugo this 3rd Jan- uary, 2022. a Lowest classified rate aid b commercial users or p y f Tom Weidt, Mayor; Attest: Michele Lindau, City Clerk Published one time in The Citizen on January 13, 2022. comparable space b) Maximum rate allowed by law for the above matter c) Rate actually charged for the above matter $ 12.70/inch 5. Mortgage Foreclosure Notices. Pursuant to Minnesota Statutes §580.033 relating to the publication of mortgage foreclosure notices: The newspaper's known office of issue is located in Ramsey County. The newspaper complies with the conditions described in §580.033, subd. 1, clause (1) or (2). If the newspaper's known office of issue is located in a county adjoining the county where the mortgaged premises or some part of the mortgaged premises described in the notice are located, a substantial portion of the newspaper's circulation is in the latter county. We are a qualified newspaper in the following counties: Anoka, Ramsey and Washington FURTHER YOUR AFFIANT SAITH NOT. BY: TITLE: Carter Johnson, Publisher PRESS PUBLICATIONS 4779 Bloom Avenue White Bear Lake, MN 55110 Subscribed and sworn to before me on this 13th day of January, 2022. Notary Publi MYRNA L. PREMBS Notary Public-Minnesotil My Coramtsstal xpiras Jan 31, 2M S Misc: Affidavit-Citizen-1 Wk.docx