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HomeMy WebLinkAbout2012.03.05 ORD 2012-463ORDINANCE 2012-463 AN ORDINANCE AMENDING HUGO CITY CODE, CHAPTER 38, HEALTH AND HUMAN SERVICES, ARTICLE III - TOBACCO, TO INCLUDE NICOTINE OR LOBELIA DELIVERY DEVICES AND REQUIRE BEHIND COUNTER STORAGE OF PRODUCTS THE CITY OF HUGO ORDAINS: Section 1. The City Council of the City of Hugo does hereby amend Chapter 38, Health and Human Services, Article III -Tobacco, to read as follows: Sec. 38-44. - Purpose. (a) Because the city recognizes that many persons under the age of 18 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 18 years and that those persons who reach the age of 18 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 minors 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. (b) The city has relied upon the following sources: Preventing Tobacco Use Among Young People, A Report of the Surgeon General; Youth Access to Tobacco - Summary Points, Youth and Elders Against Tobacco Use; Stillwater Area School District Cigarette Use Statistics; Youth Access to Tobacco, Minnesota Assist; Tobacco Sales to Youth and Nicotine Addiction in Adolescence, both by the Centers for Disease Control and Prevention. (Prior Code, § 275-010) Sec. 38-45. - Definitions and interpretations. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Compliance checks means the system the city uses to investigate and ensure that those authorized to sell tobacco, tobacco products, tobacco -related devices, and nicotine or lobelia delivery devices are following and complying" with the requirements of this article. Compliance checks may involve the use of minors as authorized by this article. Ordinance 2012-463 Tobacco Individually packaged means the practice of selling any tobacco or tobacco product wrapped individually for sale. Individually wrapped tobacco and tobacco products shall include, but not be limited to, single cigarette packs, single bags or cans of loose tobacco in any form, and single cans or other packaging of snuff or chewing tobacco. Cartons or other packaging containing more than a single pack or other container as described in this section shall not be considered individually packaged. Loosies means the common term used to refer to a single or individually packaged cigarette. Minor means any natural person who has not yet reached the age of 18 years. Moveable place of business shall refer to any form of business operated out of a truck, van, automobile, or other type of vehicle or transportable shelter and not a fixed address store front or other permanent type of structure authorized for sales transactions. Nicotine or Lobelia Delivery Devices means any product containing or delivering nicotine or lobelia intended for human consumption, or any part of such a product, that is not tobacco as defined by Minnesota State Statute §609.685 Retail establishment means any place of business where tobacco, tobacco products, tobacco - related devices, or nicotine or lobelia delivery devices are available for sale to the general public. Retail establishments shall include, but not be limited to, grocery stores, convenience stores, restaurants and bars. Sale means any transfer of goods for money, trade, barter or other consideration. Self-service merchandising means open displays of tobacco, tobacco products tobacco - related devices, or nicotine or lobelia delivery devices in any way where any person shall have access to the product without the assistance or intervention of an employee of the premises maintaining the self-service merchandising. Self-service merchandising shall not include vending machines. Tobacco or tobacco -related products means cigarettes; cigars; cheroots; stogies; perique; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flour; cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco; and other kinds and forms of tobacco, prepared in such manner as to be suitable for chewing or smoking in a pipe or other tobacco -related devices. Tobacco -related devices means any tobacco product as well as a pipe, rolling papers, or other device used in a manner which enables the chewing, sniffing or smoking of tobacco or tobacco products. Vending machine means any mechanical, electric or electronic, or other type of device which dispenses tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices upon the insertion of money, tokens, or other form of payment directly into the machine by the person seeking to purchase the tobacco, tobacco product tobacco -related device, or nicotine or lobelia delivery devices. 2 Ordinance 2012-463 Tobacco (Prior Code, § 275-020) Sec. 38-46. - Exceptions and defenses. Nothing in this article shall prevent the providing of tobacco, tobacco products, or tobacco - related devices to a minor 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. (Prior Code, § 275-130) 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. (b)Civil penalty. The provisions of chapter 42, article II, shall apply to any and all licenses issued hereunder. 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. 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 24 - consecutive month period from the date of the most recent violation. Any violation having occurred beyond 24 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. (Prior Code, §§ 130-080, 275-120; Ord. No. 2010-440, 2-1-2010) Sec. 38-48. - Responsibility. All licensees under this article shall be responsible for the actions of their employees in regard to the sale of tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices on the licensed premises, and the sale of such an item by an employee shall also be considered a sale by the license holder, and each can be held responsible for any criminal and/or civil penalties imposed herein. (Prior Code, § 275-090) 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 minors to enter the licensed 3 Ordinance 2012-463 Tobacco premises to attempt to purchase tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices Minors 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. Retail establishments possessing a class A license shall be subject to at least two compliance checks per year. (Prior Code, § 275-100) 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 18 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 18 years of age. (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 (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. (Prior Code, § 275-060) Sec. 38-51 - Storage of Products All tobacco, tobacco products, tobacco -related devices, and nicotine or lobelia delivery devices shall either be stored behind a counter or other area not freely accessible to customers, or in a case or other storage unit not left open and accessible to the general public. Sec. 38-52. - Other illegal acts. Unless otherwise provided, the following acts shall be a violation of this article: (1) Illegal possession. It shall be a violation of this article for any minor 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 minors lawfully involved in a compliance check on behalf of the city. Ordinance 2012-463 Tobacco (2) Illegal use. It shall be a violation of this article for any minor 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 minor 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 minor. 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 minor, and it shall further be a violation for any person to coerce or attempt to coerce a minor 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 minors 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 minor 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 minors lawfully involved in a compliance check on behalf of the city. (Prior Code, § 275-110) 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 sell tobacco, tobacco products, tobacco -related devices, and nicotine or lobelia delivery devices to anyone under the age of 18 years and that the possession and use of such items by minors is also illegal under both state law and local ordinance. (Prior Code, § 275-150) DIVISION 2. LICENSE Sec. 38-80. - License. No person shall sell or offer to sell any tobacco, tobacco products, tobacco -related device, or nicotine or lobelia delivery device 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 5 Ordinance 2012-463 Tobacco 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 (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. (Prior Code, § 275-030) 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. A class A tobacco license shall be required for any retail establishment which sells tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices in cartons or other packaging containing more than a single pack or other container as described in section 38-45 and shall be required for any retail establishment selling only individually packaged tobacco or tobacco products wrapped individually for sale. (Prior Code, § 275-040) Sec. 38-82. - Basis for denial of license. ril Ordinance 2012-463 Tobacco 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 18 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. Severability. 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 HUGO CITY COUNCIL ON MARCH 5, 2012 ATTEST: \\1f Michele Lindau, City Clerk MT,n, Mayor 7 r SUMMARY ORDINANCE 2012-463 NOTICE: THIS PUBLISHED MATERIAL IS ONLY A SUMMARY OF AN ORDINANCE OF THE CODE OF ORDINANCES FOR THE CITY OF HUGO. THE FULL TEXT OF THE ORDINANCE IS AVAILABLE FOR PUBLIC INSPECTION AT THE HUGO CITY HALL DURING REGULAR BUSINESS HOURS. TITLE: AN ORDINANCE AMENDING HUGO CITY CODE, CHAPTER 38, HEALTH AND HUMAN SERVICES, ARTICLE III - TOBACCO, TO INCLUDE NICOTINE OR LOBELIA DELIVERY DEVICES AND REQUIRE BEHIND COUNTER STORAGE OF PRODUCTS SUMMARY OF ORDINANCE: This ordinance amends the previously adopted ordinance to include all nicotine and lobelia delivery devices including, but not limited to, stips, orbs, sticks, snus, and e -cigarettes. In addition to that, this revision also requires all tobacco, tobacco products, tobacco related devices, and nicotine and lobelia delivery devices to be stored behind a counter. 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. § 412.191. This Ordinance shall be effective the date that it is published. The amended and added sections are available on the City website for further review. Passed and adopted by the City Council of the City of Hugo this 5th day of March, 2012. Attest: Michele Lindau, City Clerk F n, Mayor PRINTER'S AFFIDAVIT OF PUBLICATION AFFIDAVIT OF PUBLICATION STATE OF MINNESOTA) County of Ramsey) CITY OF HUGO SUMMARY ORDINANCE 2012-463 NOTICE: THIS PUBLISHED MATERIAL IS ONLYA SUMMARY OF AN ORDINANCE OF THE CODE OF ORDINANCES FOR THE CITY OF HUGO. THE FULL TEXT OF THE ORDINANCE IS AVAILABLE FOR PUBLIC INSPECTION AT THE HUGO CITY HALL DURING REGULAR BUSINESS HOURS. TITLE: AN ORDINANCE AMENDING HUGO CITY CODE, CHAPTER 38, HEALTH AND HU- MAN SERVICES, ARTICLE III - TOBACCO, TO INCLUDE NICOTINE OR LOBELIA DELIVERY DEVICES AND REQUIRE BEHIND COUNTER STORAGE OF PROD- UCTS SUMMARY OF ORDINANCE: This ordinance amends the previously adopted ordinance to include all nicotine and lobelia delivery devices including, but not limited to, stips, orbs, sticks, snus, and e - cigarettes. In addition to that, this revision also requires all tobacco, tobacco products, tobacco related devices, and nicotine and lobelia delivery devices to be stored behind a counter. 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. § 412.191. This Ordi- nance shall be effective the date that it is published. The amended and added sections are available on the City website for further review. Passed and adopted by the City Council of the City of Hugo this 5th day of March, 2012. APPROVED: Fran Miron, Mayor ATTEST: Michele Lindau, City Clerk Published one time in The Citizen on March 15, 2012. Misc/AffidavitPub-Citizen-1 Wk.doc x, or the publisher's designated agent, being duly sworn, on oath the publisher, or the publisher's designated agent and an employee per known as the THE CITIZEN, and that I have full knowledge rich are stated below: vspaper has complied with all of the requirements constituting as a qualified newspaper, as provided by Minnesota Statute 4.07, and other applicable laws, and amended. d: CITY OF HUGO SUMMARY ORDINANCE 2012-463 hed was cut from the columns of said newspaper and was printed I for one week on THURSDAY, the 15TH day of MARCH, I below is a copy of the lower case alphabet from A to Z, both ch is hereby acknowledged as being the size and kind of type used ition and publication of the notice: uvwxyz BY: TITLE: Publisher d sworn to before me on this 15TH day of MARCH, 2012. gAAAAAAAAAAAAAAAAAAAAAAAM MYRNA L. PRESS NOTARY PUBLIC - MINNESOTA MY COMMISSION EXPIRES JAN. 31, 2015 RATE INFORMATION (1) Lowest classified rate paid by commercial users for comparable space. (2) Maximum rate allowed by law for the above matter (3) Rate actually charged for the above matter. Notary Public, Minnesota (Line, word or inch rate) (Line, word or inch rate) $ 9.30/INCH (Line, word or inch rate)