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CITY OF HOPKINS
Memorandum
To: Honorable Mayor and Council Members
From: Jim Genellie, Asst. City Manager
Copy: Mike Mornson, City Manager
Date: August 13, 2014
Subject: E -Cigarette Discussion
The purpose of this discussion is to determine whether the City Council would like to proceed in
amending City Code Section 1155 — Tobacco Ordinance to prohibit "vaping" in establishments
that currently have a tobacco license.
Background
While the City of Hopkins has a number of Retail Establishments which sell e -cigarettes, there is
only one licensed "vaping" studio, the Hopkins Vaping Studio. Sampling of e -cigarette products
is a large part of this business. Current City Code prohibits the sampling of tobacco products in
all Retail Establishments, as defined in 1155.04, Subdivision 5.
Due to the uncertainty of how this language pertained to the sampling of e -cigarette products, the
City Council adopted a moratorium ordinance on October 24, 2013. This ordinance allowed the
Hopkins Vaping Studio to conduct sampling but prevented any new vaping studios until the City
Council could further study this issue. This moratorium is scheduled to expire on October 24,
2014.
Issues:
Regulatory environment in Hopkins prior to e -cigarettes: MN Clean Indoor Air Act (MCIAA)
prohibited indoor smoking in all retail establishments.
The MCIAA permitted lighting of tobacco in retail tobacco shops by customers for sampling
purposes whereas our City ordinance prohibited "sampling":
1155.10 Smoking Prohibited. It shall be unlawful for any person to light, inhale, or
exhale tobacco, tobacco products, or tobacco related devices in any Retail Establishment, or for
any License Holder or Licensee, or their employees, to permit the same
Retail establishments are defined as:
1155.04, Subd. 5. Retail Establishment. "Retail Establishment" shall mean any place of
business where tobacco, tobacco products, or tobacco related devices are available for sale to the
general public. Retail establishments shall include, but not be limited to, grocery stores,
convenience stores, and restaurants.
1010 First Street South
Hopkins, MN 55343
Memo
August 13, 2014
Despite having 18 tobacco licensees, the City only had to regulate no sampling in the retail
tobacco stores. The MCIAA prohibited smoking or "sampling" in every other "retail
establishment" in Hopkins, e.g. Holiday, Driskill's, Hopkins Tavern, etc.
If the City wants to consider e -cigarettes as being covered by Section 1155.10, in order to
prohibit the use of e -cigarettes indoors, this will apply to all "retail establishments" in Hopkins.
This will raise enforcement issues as well as equity issues, for example e -cigarette use would be
allowed in a bar/restaurant that does not sell tobacco but prohibited in a similar establishment
that does sell tobacco products.
The following options are available in regards to e -cigarettes:
1. Amend Section 1155.10 expressly allowing sampling of e -cigarettes. This will allow
the current vaping studio to remain open and may result in additional vaping studios
opening in Hopkins.
2. Amend Section 1155.10 to expressly prohibit sampling of e -cigarettes. This will
prohibit sampling at the Vaping Studio as well as all Retail Establishments which sell
tobacco.
3. Prohibit the use of e -cigarettes in all public places. This essentially expands the Clean
Indoor Air Act to include vaping. The City, however, would have to enforce this.
Attachment:
List of Establishments with Tobacco Licenses
2014 Minnesota State Laws on E -Cigarettes
Ordinance 2013-1068
Memo
August 13, 2014
Page 3
Establishments with Tobacco Licenses
Establishments the City had to
enforce section 1155.10 before
Establishments the City would
need to enforce section 1155.10
after a -cigarettes
-e-cigarettes
Back Door Tobacco
Back Door Tobacco
Blake Grocery
Casablanca Market
Driskill's Foods
Hopkins Express
Holiday Stationstore 9261
Holiday Stationstore 9413
Hopkins Vaping Studio
Jim's Liquor
Liquor Store & More
Mainstreet Bar
MGM Liquor
Midnite Market
Richard's Liquor
US Grocery & Tobacco
Walgreens
Walgreens # 6730
Memo
August 13, 2014
Page 4
2014 Minnesota State Laws on E -Cigarettes
Sec. 6. Minnesota Statutes 2012, section 144.414, is amended by adding a subdivision
to read:
Subd. 5. Electronic cigarettes. (a) The use of electronic cigarettes, including the inhaling or exhaling of vapor
from any electronic delivery device, as defined in section 609.685, subdivision 1, is prohibited in the following
locations:
(1) any building owned or operated by the state, home rule charter or statutorci1y, county, township, school
district, or other political subdivision;
(2) anfacili1y owned by Minnesota State Colleges and Universities and the University of Minnesota,
(3) an f�ty licensed by the commissioner of human services, or
(4) an f�ty licensed by the commissioner of health, but only if the facility is also subject to federal licensing
requirements.
(b) Nothing in this subdivision shall prohibit political subdivisions or businesses from adopting more stringent
prohibitions on the use of electronic cigarettes or electronic delivery devices.
609.685 SALE OF TOBACCO TO CHILDREN.
Subdivision 1. Definitions. For the purposes of this section, the following terms shall have the meanings
respectively ascribed to them in this section.
(a) "Tobacco" means 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; including but not limited to 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.
(b) "Tobacco -related devices" means cigarette papers or pipes for smoking or other devices intentionally designed or
intended to be used in a manner which enables the chewing, sniffing, smoking, or inhalation of vapors of tobacco or
tobacco products.
Tobacco -related devices include components of tobacco -related devices which may be marketed or sold separately.
(c) "Electronic delivery device" means My product containing or delivering nicotine, lobelia, or any other substance
intended for human consumption that can be used by a person to simulate smoking in the delivery of nicotine or any
other substance through inhalation of vapor from the product. Electronic delivery device includes any coMponent
part of a product, whether or not marketed or sold separately. Electronic delivery device does not include any
product that has been approved or certified 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 marketed and sold for
such an approved purpose.
Subd. la. Penalty to sell. (a) Whoever sells tobacco, tobacco -related devices, or electronic delivery devices to a
person under the age of 18 years is guilty of a misdemeanor for the first violation. Whoever violates this subdivision
a subsequent time within five years of a previous conviction under this subdivision is guilty of a gross misdemeanor.
(b) It is an affirmative defense to a charge under this subdivision if the defendant proves by a preponderance of the
evidence that the defendant reasonably and in good faith relied on proof of age as described in section 340A.503,
subdivision 6.
Subd. 2. Other offenses. (a) Whoever furnishes tobacco of, tobacco -related devices, or electronic delivery
devices to a person under the age of 18 years is guilty of a misdemeanor for the first violation. Whoever violates this
paragraph a subsequent time is guilty of a gross misdemeanor.
(b) A person under the age of 18 years who purchases or attempts to purchase tobacco e , tobacco -related devices, or
electronic delivery devices and who uses a driver's license, permit, Minnesota identification card, or any type of
false identification to misrepresent the person's age, is guilty of a misdemeanor.
Memo
August 13, 2014
Page 5
Subd. 3. Petty misdemeanor. Except as otherwise provided in subdivision 2, whoever possesses, smokes, chews,
or otherwise ingests, purchases, or attempts to purchase tobacco of tebaeee feWed tobacco -related devices, or
electronic delivery devices and is under the age of 18 years is guilty of a petty misdemeanor.
Subd. 4. Effect on local ordinances. Nothing in subdivisions 1 to 3 shall supersede or preclude the continuation
or adoption of any local ordinance which provides for more stringent regulation of the subject matter in subdivisions
1 to 3.
Subd. 5. Exceptions. (a) Notwithstanding subdivision 2, an Indian may furnish tobacco to an Indian under the age
of 18 years if the tobacco is furnished as part of a traditional Indian spiritual or cultural ceremony. For purposes of
this paragraph, an Indian is a person who is a member of an Indian tribe as defined in section 260.755, subdivision
12.
(b) The penalties in this section do not apply to a person under the age of 18 years who purchases or attempts to
purchase tobacco eiF, tobacco -related devices, or electronic delivery devices while under the direct supervision of a
responsible adult for training, education, research, or enforcement purposes.
Sec. 34. Minnesota Statutes 2012, section 609.6855, is amended to read:
609.6855 SALE OF NICOTINE DELIVERY PRODUCTS TO CHILDREN.
Subdivision 1. Penalty to sell. (a) Whoever sells to a person under the age of 18 years a product containing or
delivering nicotine or lobelia intended for human consumption, or any part of such a product, that is not tobacco or
an electronic delivery device as defined by section 609.685, is guilty of a misdemeanor for the first violation.
Whoever violates this subdivision a subsequent time within five years of a previous conviction under this
subdivision is guilty of a gross misdemeanor.
(b) It is an affirmative defense to a charge under this subdivision if the defendant
proves by a preponderance of the evidence that the defendant reasonably and in good faith relied on proof of age as
described in section 340A.503, subdivision 6.
(c) Notwithstanding paragraph (a), a product containing or delivering nicotine or lobelia intended for human
consumption, or any part of such a product, that is not tobacco or an electronic delivery device as defined by section
609.685, may be sold to persons under the age of 18 if the product 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.
Subd. 2. Other offense. A person under the age of 18 years who purchases or attempts to purchase a product
containing or delivering nicotine or lobelia intended for human consumption, or any part of such a product, that is
not tobacco or an electronic delivery device as defined by section 609.685, and who uses a driver's license, permit,
Minnesota identification card, or any type of false identification to misrepresent the person's age, is guilty of a
misdemeanor.
Subd. 3. Petty misdemeanor. Except as otherwise provided in subdivisions 1 and 2, whoever is under the age of
18 years and possesses, purchases, or attempts to purchase a product containing or delivering nicotine or lobelia
intended for human consumption, or any part of such a product, that is not tobacco or an electronic delivery device
as defined by section 609.685, is guilty of a petty misdemeanor.
CITY OF HOPKINS
HENNEPIN COUNTY, MINNESOTA
ORDINANCE NO. 2013-1068
AN INTERIM ORDINANCE FORTHE PURPOSE OF PRO TECTINCKTHE
PLANNING PROCESS AND THE HEALTH, SAFETY AND WELFARE
OF CITY RESIDENTS; ANI) RESTRICTINGTI-1E USE, AND SALE
OF E -CIGARETTES AND RELATED PRODUCTS
THE, CITY COUNCIL OF THE CITY OF HOPKINS HEREBY ORDAINS AS FOLLOWS:
Section 1. Back�round and Findigg)L.
1.01 The City Council has the power to adopt ordinances to provide for the government and good
order of the city, the prevention of crime, the protection of public and private property, the
benefit of trade and commerce, and the promotion of health, safety, order, convenience, and
the general welfare.
1.02 Minnesota law gives cities the legal authority to regulate tobacco and tobacco related devices
and the City of'Hopkins has elected to regulate tobacco products.
1.03 Plectronic cigarettes, commonly known as e -cigarettes, and other similar devices provide new
methods for nicotine delivery that do not involve burning tobacco. ["l -cigarettes heat a liquid
infused with nicotine and other unknown ingredients and the vapor is inhaled like tobacco
smoke. l"requently, e -cigarettes and the liquid products are sold atlocations where Customers
arc p
, ermitted to "sample" the products on site before purchasing them,
1.04 The I'DA and the State of Minnesota have classified e -cigarettes as "tobacco products." There
remain questions regarding this classification and the possible health effects of these products.
1.05 The State of Minnesota's only current regulation is to prohibit the sale of e -cigarettes to
persons less than 18 years of age. The level of regulation varies widely among Minnesota
cities. Some cities have simply treated the sale of e -cigarettes the same as any other tobacco
product. Other cities have sought to ban their use in all public places. Some cities have no
regulation at all. Hopkins currently permits the sale of e -cigarettes only in establishments
licensed to sell tobacco products. Hopkins has no regulation regarding the use of e -cigarettes.
1
1.06 'Therefore, the City Council finds that there is a need for an interim ordinance to be adopted
for the purpose of protecting the planning process and the health, safety and welfare of' the
citizens of the City and to insure that the City and its citizens retain the benefits of the City's
zoning ordinance while City staff completes such a Study. The City Council also finds that
there is a need to restrict the sale of e -cigarettes to Current levels and locations and to not
expand such sales until a study has been completed and any modifications to the City's
regulations have been adopted. Therefore, it is not the intent of this ordinance to prohibit any
business that has a license to sell tobacco at its current location and is operating lawfully and
in accordance with all state, federal and municipal regulations at the time of" the adoption of
this ordinance from continuing to sell e -cigarettes at that location but rather to maintain the
status quo during the pendency of the planning study. In addition, the City Council finds that
there is a need to restrict "sampling" of e -cigarette products to locations where the only
products sold are e -cigarettes and the liquids used in them.
Ordinance No. 2013-1068 -2-
1,07 Minnesota Statutes, Section 462.355, Subd. 4 allows the City of lJopkins to adopt this Interim
Ordinance to protect the planning process. The City Council finds that adoption of this
Interim Ordinance will protect the planning process and the health, safety and welfare of its
citizens while the Planning Study is being conducted.
Section 2. Planning and Zoning Study /Moratorium.
2.01. A study is authorized to be conducted by City staff to determine whether it is necessary to
I f,
amend the City's Existing Ordinances, Regulations and Official Controls or adopt new
ordinances relating the use of e -cigarettes and similar devices.
The scope of the study Should include, but is not limited to, the following:
a. the particular zoning districts in which Such uses should be allowed as either permitted
uses or conditional uses and the specific conditions which should be applicable to the sale
and use of e -cigarettes as a conditional use;
b. the density and concentration of such uses;
c. the effect of such uses on other uses in the surrounding area;
d. the need, if any, for modifications to the City's official controls or licensing regulations
regarding such uses; and
the effect of e -cigarette sellers' proximity to residential areas, Schools, Churches, cultural institutions,
parks and playgrounds on the health and welfare of the citizens of Flopkins, especially the young.
Section 3. Moratorium.
A moratorium is hereby adopted and enacted prohibiting the creation, establishment or operation of
any business in the City of Hopkins which sells e -cigarettes or the liquid products used in them other
than those businesses which have current valid tobacco licenses as of the effective date of this
Ordinance. Further, a moratorium is hereby adopted and enacted prohibiting any business currently
licensed to sell tobacco which also sells e -cigarettes from allowing on-site sampling of e -cigarettes
and related products except such licensees that sell only e -cigarettes and the liquids used in thern.
This moratorium shall not prohibit license renewals of current license holders at their current
locations. This Interim Ordinance is adopted for the purpose of" protecting the planning process
pending completion of the Planning Study and the review of the completed Planning Study by the
City Council. This Interim Ordinance and the moratorium imposed hereby shall remain in effect
until the date that is one year after the effective date of this Interim Ordinance, or such earlier date as
may hereafter be established by an Ordinance duly adopted by the City Council. The term of this
Interim Ordinance and the moratorium imposed hereby may be extended for a reasonable period of
time by Ordinance as may be necessary to complete the Planning Study authorized hereby and to
adopt any necessary modifications to the City's Ordinances, Regulations and Official Controls.
Section 4. Enforcement,
The City may ent'orce the provision of this Interim Ordinance or enjoin any violation thereof' by
mandamus, prohibitive or mandatory injunction or any other appropriate legal or equitable remedy,
including, but not limited to, remedies and enforcement procedures provided in the statutes of the
State of Minnesota or Ordinance of the City of Hopkins, in any Court of competent jurisdiction.
Ordinance No. 2013-1068 -3-
Section 5. Severability.
1 --,"very section, provision or part of' this Interim Ordinance is declared severable from every other
section, provision or part, and if any portion of this Interim Ordinance is field invalid or
unenforceable by a Court ol'competent jurisdiction, it shall not invalidate any other section, provision
or part ol'this Interim Ordinance.
Section 6. Effective Date.
This Interim ()rdinance shall be effective the day of its publication.
F'irst Reading:
Second Reading:
Date of Publication:
1-11" IT:
Kristine 1.-.uedke, City Clerk
APPROVED AS TO F(")RM AND LEGALITY:
oc"
C AttorneSignature Date
October t, 2013
October 15, 2013
October 24, 2013
17
By:
F -, ugen."M Mayor