HomeMy WebLinkAboutCity Council Ordinance 2014-09CITY OF PLYMOUTH
HENNEPIN COUNTY, MINNESOTA
ORDINANCE NO. 2014-09
AN ORDINANCE AMENDING CHAPTER
XI OF THE PLYMOUTH CITY CODE
CONCERNING TOBACCO AND RELATED PRODUCTS
THE CITY OF PLYMOUTH ORDAINS:
SECTION 1. Section 1150 of the Plymouth City Code is amended to provide:
1150.01. Lieense RequiredPurpose and Intent. No per -sen shall e , by eoin maehine, or ethef�e,
keep for- retail sale, sell at retail, or- etheFwise dispose > >
Tebaeee Pr-edttets at any plaee in the City unless they have obtained a lieense therefore a -s
providedhef:ei,. 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 the sales, possession, and use are violations of both state and federal laws; 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
ordinance 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 M.S. § 144.391, as it may be
amended from time to time In making these findings, the City Council accepts the conclusions_ and
recommendations of Center for Disease Control in their study "Selected Cigarette Smoking Initiation and
Quitting Behaviors Among High School Students, United States, 1997," and of the following medical
Professionals in these medical journals: Khuder SA, et al., "Age at Smoking Onset and its Effect on Smoking
Cessation," Addictive Behavior 24(5)•673-7, September -October 1999; D'Avanzo B, et al., "Age at Starting
Smoking and Number of Cigarettes Smoked," Annals ofEpidemiolQ 4(6):455-59, November 1994; Chen, J &
Millar, WJ, "Age of Smoking_ Initiation• Implications for Quitting Health Reports 9(4):3946, Spring 1998;
Everett SA, et al., "Initiation of Cigarette Smokingand Subsequent Smoking Behavior Among U.S. High
School Stridents," Preventive Medicine, 29(5-33, November 1999, copies of which are adopted by
reference.
1150.02 Definitions For the purpose of this Section, the following definitions shall apply unless the
context clearly indicates or requires a different meaning.
COMPLIANCE CHECKS. 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 ordinance. COMPLIANCE
CHECKS shall involve the use of minors as authorized by this ordinance. COMPLIANCE CHECKS
shall also mean the use of minors who attempt to purchase tobacco, tobacco products, tobacco -related
devices, or nicotine or lobelia delivery devices for educational, research and training purposes as
authorized by state and federal laws. COMPLIANCE CHECKS may also be conducted by other_ units
of government for the purpose of enforcing appropriate federal, state or local laws and regulations
relating to tobacco, tobacco products, tobacco -related devices, and nicotine or lobelia delivery devices.
INDIVIDUALLY PACKAGED. 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 definition shall not be considered individually packaged.
INDOOR AREA. All space between a floor and a ceiling that is bounded by walls, doorways, or
windows, whether open or closed, covering more than 50 percent of the combined surface area of the
vertical planes constituting the perimeter of the area. A wall includes any retractable divider, garage
door, or other physical barrier, whether temporary or permanent.
LOOSIES. The common term used to refer to a single or individually packaged cigarette or any
other tobacco product that has been removed from its packaging and sold individually. The term
"loosies" does not include individual cigars with a retail price, before any sales taxes, of more than
$2.00 per cigar.
MINOR. Any natural person who has not yet reached the age of 18 years.
MOVEABLE PLACE OF BUSINESS. 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. 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 in this section, not including any product that has been approved or otherwise certified for
legal sale by the United States Food and Drug_ Administration for tobacco use cessation, harm
reduction, or for other medical purposes, and is being marketed and sold solely for that approved
purpose.
RETAIL ESTABLISHMENT. Any place of business where tobacco, tobacco products, tobacco -
related devices, or nicotine or lobelia deliver devices are available for sale to the general public. The
phrase shall include but not be limited to grocery stores, convenience stores, restaurants, and drug
stores.
SALE. Any transfer of goods for money, trade, barter or other consideration.
SELF-SERVICE MERCHANDISING. Open displays of tobacco, tobacco products, tobacco -
related devices, or nicotine or lobelia delivery devices in any manner where any person shall have
access to the tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery
devices, without the assistance or intervention of the licensee or the licensee's employee. The
assistance or intervention shall entail the actual physical exchange of the tobacco, tobacco product,
tobacco -related device, or nicotine or lobelia delivery device between the customer and the licensee or
employee Self-service sales are interpreted as being any sale where there is not an actual physical
exchange of the product between the clerk and the customer.
SMOKING. Inhaling or exhaling smoke from any lighted or heated cigar, cigarette, pipe, or any
other lighted or heated tobacco or plant product. Smoking also includes carrying a lighted or heated
cigar, cigarette,wipe, or any other lighted or heated tobacco or plant product intended for inhalation.
TOBACCO or TOBACCO PRODUCTS. Tobacco and tobacco products includes cigarettes and
any product containing, made, or derived from tobacco that is intended for human consumption,
whether chewed, smoked, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other
means, or any component, part, or accessory of a tobacco product; 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. Tobacco excludes
any tobacco product that has been approved by the United States Food and Drug Administration for
sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes,
and is being marketed and sold solely for such an approved purpose.
TOGA CCO-RELA TED DEVICES. Tobacco -related devices includes any tobacco product as well
as a pipe, rolling papers, ashtray, or other device intentionally designed or intended to be used in a
manner which enables the chewing, sniffing or smoking of tobacco or tobacco products.
VENDING MACHINE. Any mechanical, electric or electronic, or other type of device which
dispenses tobacco, tobacco products or tobacco -related 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 or tobacco -related device.
1150.03. License
(A) License required 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.
(B) 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 City Council for
action at its next regularly scheduled City Council meeting. If the City Clerk shall determine that an application
is incomplete, he or she shall return the application to the applicant with notice of the information necessary to
make the application complete.
(C) Action The City Council may either approve or deny the license, or it may delay action for a reasonable
period of time as necessary to complete any investigation of the application or the applicant it deems necessary.
If the City Council shall approve the license, the City Clerk shall issue the license to the applicant. If the City
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 City Council's decision.
(D) Terni. All licenses issued under this section shall be valid for one calendar year from the date of issue except
that initial licenses shall expire on December 31 of the year they are issued.
(E) Revocation or sitspension. Any license issued under this Section may be revoked or suspended as provided
in Section 1150.12.
(F) Transfers. All licenses issued under this Section 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 City Council.
(G) 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 Section.
(H) Display. All licenses shall be posted and displayed in plain view of the general public on the licensed
premise.
(I) 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.
(J) Issuance as privilege and not a right The issuance of a license issued under this Section 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.
(K) Smokinz Smokingshall hall not be permitted and no person shall smoke within the indoor area of any
establishment with a retail tobacco license. Smoking for the purposes of sampling tobacco and tobacco related
products is prohibited.
1150.04. License Fee;
]_
Feee;Terrm; Date. The fee for a license is set by Chapter X. The lieefis
on Deeember
1150.05. Prohibited Acts.
(A) It shall be a violation of this Section for anv person to sell or offer to sell_any tobacco, tobacco product
tobacco -related device, or nicotine or lobelia delivery device:
A. No pef:san shall ,b , ,
eigliteenyears.
weed,B. No per -sen sh-all keep for- sale, sell, or- dispose of any eigafette or ethef
bella denfia-,
stryelHiia> >Juana, b,
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G. No per -sen shall sell or dispense afly Tobacco Pfoduet gg
A) To any person under the age of 18 years.
B) By means of anv tvne of vending machine.
(C) By means of self-service methods whereby the customer does not need to a make a verbal or written request
to an employee of the licensed premise in order to receive the tobacco, tobacco product, tobacco -related device,
or nicotine or lobelia delivery device and whereby the there is not a physical exchange of the tobacco, tobacco
product, tobacco -related device, or nicotine or lobelia delivery device between the licensee, or the licensee's
employee, and the customer.
(D) By means of loosies.
(E) Containing opium, morphine, jimson weed, bella donna, strychnos, cocaine, marijuana, or other deleterious,
hallucinogenic, toxic or controlled substances except nicotine and other substances found naturally in tobacco or
added as part of an otherwise lawful manufacturing_ process. It is not the intention of this provision to ban the
sale of lawfully manufactured cigarettes or other tobacco products.
(F) By any other means, to any other person, on in any other manner or form prohibited by federal, state or other
local law, ordinance provision, or other regulation.
1150.06 Other Illegal Acts. Unless otherwise provided, the following acts shall be a violation of this Section:
Algal sales It shall be a violation of this Section for any person to sell or otherwise provide any tobacco,
tobacco product, tobacco -related device, or nicotine or lobelia delivery device to any minor.
(B) Illegal possession? It shall be a violation of this Section for any minor to have in his or her possession any
tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery device -This division (B) shall
not apply to minors lawfully involved in a compliance check.
(C) Illegal use. It shall be a violation of this Section for any minor to smoke, chew, sniff or otherwise use any
tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery device.
(D) Illegal procurement It shall be a violation of this Section for any minor to purchase or attempt to purchase
or otherwise obtain any tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery device,
and it shall be a violation of this Section for any person to purchase or otherwise obtain those items on behalf of
a minor. It shall further be a violation for any person to coerce or attempt to coerce a minor to illegally purchase
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A) To any person under the age of 18 years.
B) By means of anv tvne of vending machine.
(C) By means of self-service methods whereby the customer does not need to a make a verbal or written request
to an employee of the licensed premise in order to receive the tobacco, tobacco product, tobacco -related device,
or nicotine or lobelia delivery device and whereby the there is not a physical exchange of the tobacco, tobacco
product, tobacco -related device, or nicotine or lobelia delivery device between the licensee, or the licensee's
employee, and the customer.
(D) By means of loosies.
(E) Containing opium, morphine, jimson weed, bella donna, strychnos, cocaine, marijuana, or other deleterious,
hallucinogenic, toxic or controlled substances except nicotine and other substances found naturally in tobacco or
added as part of an otherwise lawful manufacturing_ process. It is not the intention of this provision to ban the
sale of lawfully manufactured cigarettes or other tobacco products.
(F) By any other means, to any other person, on in any other manner or form prohibited by federal, state or other
local law, ordinance provision, or other regulation.
1150.06 Other Illegal Acts. Unless otherwise provided, the following acts shall be a violation of this Section:
Algal sales It shall be a violation of this Section for any person to sell or otherwise provide any tobacco,
tobacco product, tobacco -related device, or nicotine or lobelia delivery device to any minor.
(B) Illegal possession? It shall be a violation of this Section for any minor to have in his or her possession any
tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery device -This division (B) shall
not apply to minors lawfully involved in a compliance check.
(C) Illegal use. It shall be a violation of this Section for any minor to smoke, chew, sniff or otherwise use any
tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery device.
(D) Illegal procurement It shall be a violation of this Section for any minor to purchase or attempt to purchase
or otherwise obtain any tobacco, tobacco product, tobacco -related device, or nicotine or lobelia delivery device,
and it shall be a violation of this Section for any person to purchase or otherwise obtain those items on behalf of
a minor. 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
device. This division (D) shall not apply to minors lawfully involved in a compliance check.
(E) Use of false identification. It shall be a violation of this Section 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 aye of the person has been modified or tampered with to represent an age older than the actual
age of the person
1150.07. Basis for denial of license. Ever -y such
uc license shall be apenl .
displayed
ic.playe in the „lana of business to .=,hie it has been. stir Grounds for denying the issuance or renewal
11 1L L1L.{V VVVIi i✓V 4Lv
of a license under this Section include but are not limited to the following:
(1) The applicant is under the age of 18 years.
(2) 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) The applicant has had a license to sell tobacco, tobacco products, tobacco -related devices, or nicotine or
lobelia delivery devices revoked within the preceding 12 months of the date of application.
(4) The applicant fails to provide any information required on the application, or provides false or misleading
information.
(5) The applicant is prohibited by federal, state, or her local law, ordinance, or other regulation from
holding a license.
1150.08 Self -Service Sales. It is unlawful for a licensee under this Section to allow the sale of tobacco,
tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices by any means where
by the customer may have access to those items without having to request the item from the licensee or
the licensee's employee and whereby there is not a physical exchange of the tobacco, tobacco product,
tobacco -related device, or nicotine or lobelia delivery device between the licensee or his or her clerk
and the customer. 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. Any retailer selling
tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices at the time
this Section is adopted shall comply with this Section within 90 days following the effective date of
this Section.
1150.09. Responsibility. All licensees under this Section 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 an item by an employee shall be
considered a sale by the license holder. Nothing in this Section shall be construed as prohibiting the
city from also subjecting the clerk to whatever penalties are appropriate under this Section, state or
federal law, or other applicable law or regulation.
1150.10. Compliance Checks and Inspections. All licensed premises shall be open to inspection by the city
police 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, with the written consent of their parents or
guardians, minors over the age of 15 years but less than 18 years to enter the licensed premise 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 be supervised by city designated law enforcement officers or
other designated city personnel. Minors used for compliance checks shall not be guilty of unlawfill possession of
tobacco, tobacco products, tobacco -related devices, or nicotine or lobelia delivery devices when those items are
obtained as a part of the compliance check. No minor used in compliance checks shall attempt to use a false
identification misrepresenting the minor's age, and all minors lawfully engaged in a compliance check shall
answer all questions about the minor's age asked by the licensee or his or her employee and shall produce any
identification, if any exists, for which he or she is asked. Nothing in this Section shall prohibit compliance
checks authorized by state or federal laws for educational, research, or training purposes, or required for the
enforcement of a particular state or federal law.
1150.11. Exceptions and Defenses. Nothing in this Section shall prevent the providing of tobacco,
tobacco products, tobacco -related devices, or nicotine or lobelia delivery 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 Section for a person to have reasonably relied on proof of age as described by state
law.
1150.12. Violations.
A. Misdemeanors. Any person who violates this ordinance shall be guilty of
a Misdemeanor unless the violation has a specific penalty designated by state law.
B. Administrative Civil Penalties; Individuals. An individual who sells
Tobacco to a person under the age of 18 years shall be subject to an administrative
penalty of $50. No penalty may be imposed until the individual has received
notice, served personally or by mail, of the alleged violation and an opportunity
for a hearing before the Chief of Police or his/her designee. A decision that a
violation has occurred must be in writing.
C. Administrative Civil Penalties; Licensee. If a licensee or an employee of a
licensee is found to have sold tobacco to a person under the age of 18 years, the
licensee shall be subject to an administrative penalty as follows:
Offense
Minimum (State)
Presumptive Penalty
Maximum (City/State)
(City)
I" Violation
$75 and/or 0 days
$500 fine and 5 -day
$2,000 and/or 60 -days
Suspension
suspension stayed
suspension
2 nd Violation
$200 and/or 0 days
$750 fine and 5 -day
$2,000 and/or 60 -days
(within 24 mos)
Suspension
suspension
suspension
3 Violation
$250 and/or 7 days
$1,000 fine and 10 -day
$2,000 and/or 60 -days
(within 24 mos)
Suspension
suspension
suspension
4` Violation
None listed
Revocation
Revocation
(within 24 mos)
D. Defense. It is a defense to the charge of selling tobacco to a person under
the age of 18 years, that the licensee or individual, in making the sale, reasonably
and in good faith relied upon representation of proof of age described in State
Statute Section 340A.5031 subdivision 6, paragraph (a).
E. Exemption. A person, no younger than 15 and no older than 17, may be
enlisted to assist in the tests of compliance, provided that written consent from the
person's parent or guardian has been obtained and that the person shall at all times
act only under the direct supervision of a law enforcement officer or an employee
of the licensing department, or in conjunction with an in-house program that has
SECTION 2. This ordinance shall be effective following its enactment.
ADOPTED by the City Council of the City of Plymouth, Minnesota this 11th day of February,
2014.
Lukv%
Kelli Slavik, Mayor
AT EST:
Sandra R. Engdahl, ay Clerk