VI.2. Approve Ordinance 2014-1081 for First Reading - Tobacco
November 5, 2014 Council Report 2014-107
AMENDMENTS TO SECTION 1155 OF THE CITY CODE
Proposed Action
Staff recommends that the Council approve the following motion: Move that the Hopkins City
Council approve Ordinance 2014-1081 for first reading.
Adoption of this motion will begin the process of amending Section 1155 – Tobacco.
Overview
While the City of Hopkins has a number of Retail Establishments which sell e-cigarettes, there is
only one “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 expired on October 24, 2014.
The proposed ordinance establishes a vaping establishment license and makes several other minor
changes to Section 1155. The proposed ordinance establishes a limit of one vaping establishment
license. Staff has received indications that more than one tobacco licensee is interested in the vaping
license.
The City Council might also want to consider a limit on the number of tobacco licenses in the City.
There are currently 17. All of them are subject to annual compliance checks by the Police
Department.
Primary Issues to Consider
What are the major changes to Section 1155?
Supporting Information
Analysis of Issues
Alternatives
Ordinance number 2014-1081
______________________________________
Jim Genellie
Assistant City Manager
Council Report 2014-107
Page 2
Analysis of Issues
What are the major changes to Section 1155?
1. Including e-cigarettes and their component parts as tobacco & tobacco related devices so
that their sale and use will be regulated by the City, including the use by and sale to minors.
2. The City’s licensing scheme would consist of two separate licenses: Tobacco Sales Licenses
and Vaping Establishment Licenses. The City will only permit one Vaping Establishment License.
(To have a vaping establishment license, you must already have a Tobacco Sales License). No
Vaping Establishment License will be issued to any business that allows persons under the age of
eighteen (18) to enter the establishment.
3. A Tobacco Sales License will not allow “sampling” of tobacco products, while the Code
would allow “sampling” and “vaping” of E-cigarettes only in a licensed vaping establishment.
4. The sections adopting state and federal law by reference are deleted to eliminate any
confusion and inconsistencies with respect to definitions contained within the City Code.
Violations of state and federal law, however, will be considered violations of the Ordinance. This
would include current and future prohibitions reflected in the Minnesota Clean Indoor Air Act.
Currently, under the MCIAA, e-cigarette use is prohibited in buildings owned by political
subdivisions and universities, as reflected in Minn. Stat. 144.414, subd. 5. E-cigarette use,
therefore, is allowed in restaurants, bars, etc.
Alternatives
1.Adopt Ordinance number 2014-1081 for first reading.
2.Do not adopt Ordinance number 2014-1081.
Staff recommends Alternative #1.
CITY OF HOPKINS
COUNTY OF HENNEPIN
ORDINANCE NO. 2014-1081
ORDINANCE AMENDING SECTION 1155 TOBACCO ORDINANCE
OF THE HOPKINS CITY CODE
THE COUNCIL OF THE CITY OF HOPKINS HEREBY ORDAINS AS FOLLOWS:
Section 1. Hopkins City Code Section 1155 is amended by adding the following underlined
language and deleting the strikethrough language:
1155.02. State laws adopted by reference. Minnesota Statutes, section 461, is adopted by reference
and made a part of this code as if fully set forth herein. A violation of the provisions of the statutes
adopted by reference herein is a violation of this code. (Added by Ord. 2003-899).
1155.03. Federal laws adopted by reference. Code of Federal Regulations, Part 897 - Cigarettes
and Smokeless Tobacco, is adopted by reference and made a part of this code as if fully set forth herein.
A violation of the provisions of the Regulations adopted by reference herein is a violation of this code.
(Added by Ord. 2003-899)
1155.04. Definitions. Subdivision 1. The following words and terms when used in this section
shall have the following meanings unless the context clearly indicates otherwise:
Subd. 2. Tobacco or Tobacco Products. “Tobacco or Tobacco Product” shall mean cigarettes,
cigars, e-cigarettes, liquid nicotine, cheroots, stogies, perique, granulated, plug cut, crimp cut, ready,
rubbed and other smoking tobacco; snuff, snuff flower, Cavendish, plug and twist tobacco; fine cut and
other chewing tobaccos; shorts, refuse scripts, clippings, cuttings, and sweepings of tobacco; and other
kinds and forms of tobacco, prepared in such a manner as to be suitable for chewing, sniffing, or smoking
in a pipe; rolling paper or other tobacco related devices. This definition 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. 3. Tobacco Related Devices. “Tobacco Related Devices” shall mean cigarette papers or
pipes for smoking or other devices intentionally designed or intended to be used in a manner which
enables chewing, sniffing, smoking, or vaping of tobacco or tobacco products, including e-cigarettes and
e-cigarette cartridges.
Subd. 4. Minor. “Minor” shall mean any natural person who has not yet reached the age of
eighteen (18) years.
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.
Subd. 6. License Holder or Licensee. License Holder or Licensee” shall mean one (1) or more
natural persons; a partnership, limited liability company; corporation, including a foreign, domestic, or
nonprofit corporation; a trust; a political subdivision of the State; or any other business organization.
Subd. 7. Self-service Merchandising. “Self-service merchandising” shall mean a method of
displaying tobacco, tobacco products, or tobacco related devices so that they are accessible to the public
without the intervention of the licensee, their agents or employees.
Subd. 8. Vending Machine. “Vending machine” shall mean any mechanical, electric or
electronic, self-service device which, upon insertion of money, tokens or any other form of payment,
dispenses tobacco products and including vending machines equipped with manual, electric or electronic
locking devices.
Subd. 9. Moveable Place of Business. Moveable Place of Business” shall refer to any form of
business operated out of a motorized vehicle, mobile sales kiosk, trailer truck, van, automobile, or other
type of vehicle or other transportable shelter and not a fixed address store front or other permanent type of
structure authorized for sales transactions.
Subd. 10. Individually Packaged. “Individually packaged” shall mean 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 herein shall not be considered
individually packaged.
Subd. 11. Sale. “Sale” shall mean any transfer of goods for money, trade, barter, or other
consideration.
Subd. 12. Compliance Checks. Compliance Checks” shall mean the system the city uses to
investigate and ensure that those authorized to sell tobacco, tobacco products, and tobacco related 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 or tobacco related devices for educational, research
and training purposes as authorized by State and Federal laws. Other units of government for the purpose
of enforcing appropriate Federal, State, or local laws may also conduct compliance checks and regulations
relating to tobacco, tobacco products, and tobacco related devices.
Subd. 13. E-cigarettes. E-cigarettes are cigarette-shaped electronic delivery devices that
employ a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical
means to produce a vapor from liquid nicotine to simulate the experience of smoking tobacco through
inhalation and exhalation of the produced vapor. This term shall include such devices whether they are
manufactured as e-cigarettes, e-cigs, e-cigars, e-pipes, personal vaporizers, electronic delivery systems, or
electronic delivery devices. E-cigarettes include any component part of a product, whether or not
marketed or sold separately.
Subd. 14. Liquid Nicotine. Any liquid product manufactured for use with e-cigarettes,
including e-liquid and e-juice, which produces an aerosol when heated, composed either in whole or in
part of a mixture of ingredients, which may include pure nicotine, propylene glycol, vegetable glycerin,
and other flavorings.
Subd. 15. E-cigarette cartridges. A container which serves as a reservoir for Liquid Nicotine
for use in an e-cigarette.
Subd. 16. Sampling. The distribution to members of the general public of tobacco, tobacco
products, or tobacco related devices, on-site, at a licensed premises, at no costs or at nominal cost for
product promotional purposes.
Subd. 17. Vaping. Inhaling or exhaling the vapor produced by an e-cigarette.
1155.05. Tobacco Sales Licenses. No person shall sell or offer to sell any tobacco, tobacco products, or
tobacco related device without first having obtained a license to do so from the city. A license under this
section does not permit sampling on the licensed premises.
1155.076. Fees. No license shall be issued under this ordinance until the appropriate license fee
shall be paid in full. The fee for a license under this ordinance shall be set by city council resolution.
1155.097. Prohibited Sales. Subdivision 1. Prohibited Sales. No person shall sell, offer to sell,
give away, furnish, or otherwise deliver any tobacco, tobacco product, or tobacco related device:
a) To any person under the age of eighteen (18) years.
b) By any other means, or to any person, prohibited by Federal, State, or other local law,
ordinance provisions, or other regulation.
Subd. 2. Self-service Sales of Single Packages - Restricted.
a) No person shall offer for sale single packages of cigarettes or smokeless tobacco in open
displays, which are accessible to the public without the intervention of a store employee.
b) Cartons and other multi-pack units may be offered and sold through open displays accessible
to the public.
c) On the effective date of Federal Regulations pertaining to self-service sales of tobacco
products (Code of Federal Regulations, title 21, part 897.16(c)), paragraph (b) above expires,
and is replaced by incorporation of the federal regulations into Hopkins City Code.
d) This subdivision shall not apply to retail stores, which derive at least 90 percent of their
revenue from tobacco, and tobacco-related products and which cannot be entered at any time
by persons younger than 18 years of age.
e) Prior to offering for sale any single packages of tobacco products by self-service
merchandising, a licensee must file with the city clerk a statement from a certified public
accountant that shows both total gross sales and total sales from tobacco or related products.
Said statement must also be filed with the city clerk yearly on or before the renewal date of the
license.
Subd. 3. Vending Machine Sales. It shall be unlawful for anyone licensed under this ordinance
to allow the sale of tobacco, tobacco products, or tobacco related devices by the means of a vending
machine unless minors are at all times prohibited from entering the licensed establishment.
Subd. 4. Mobile Sales. No license shall be issued for the sale of tobacco, tobacco products, or
tobacco related devices at a moveable place of business, including but not limited to, motorized vehicles,
mobile sales kiosks, or trailers.
1155.1008. 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 Tobacco
License Holder or Licensee, or their employees, to permit the same. (Added by Ord. 2011-1041). The
vaping of e-cigarettes at a Retail Establishment and the sampling or vaping of e-cigarettes at a licensed
vaping establishment are exempt from prohibition under this section.
1155.1109. Responsibility. All licensees under this ordinance shall be responsible for the actions of
their employees in regard to the sale of tobacco, tobacco products, or tobacco related devices on the
licensed premises, and the sale of such an item by an employee shall be considered a sale by the license
holder.
1155.10. Vaping Establishment Licenses. No person shall operate a business for the sampling and
vaping of e-cigarettes without first having obtained a license from the city to do so. A vaping
establishment license is required in addition to a Tobacco Sales license under Section 1155.05. One
Vaping Establishment License may be granted a year.
No Vaping Establishment License will be issued to any
business that allows persons under the age of eighteen (18) to enter the establishment. The City will not consider
new Vaping Establishment License applications until a license is available through either relinquishment,
nonrenewal, or revocation.
Subd. 1. Application. An application for a vaping establishment license shall be made on a
form provided by the city. The application shall contain 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, the city clerk
shall return the application to the applicant with notice of the information necessary to make the
application complete.
Subd. 2. Denial. The following shall be grounds for denying the issuance or renewal of a
license under this Section. The following list is not exhaustive or exclusive:
a) The applicant is under the age of 18 years.
b) The applicant has been convicted within the past five years of a violation of any provisions of
this ordinance or a violation of Federal, State or local law, ordinance provision, or other
regulation relating to tobacco, tobacco products, or tobacco related devices.
c) The applicant or license holder has had a license to sell tobacco, tobacco products or tobacco
related devises revoked within the preceding twelve (12) months of the date of application.
d) The applicant fails to provide any information required on the city license application, or
provides false or misleading information.
e) The applicant or license holder has outstanding fines, penalties or property taxes owed to the
city.
f) The applicant or license holder does not have a Tobacco Sales License under Section 1155.05.
Subd. 3. 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 city clerk shall issue the license
to the applicant. If the council denies the license, notice of denial shall be given to the applicant along
with notice of the applicant’s right to appeal the council’s decision.
Subd. 4. Term. All licenses issued under this ordinance shall expire on June 30 of each
calendar year.
Subd. 5. Revocation or Suspension. Any license issued under this ordinance may be revoked
or suspended as provided in the Violations and Penalties of this ordinance.
Subd. 6. Transfers. All licenses issued under this ordinance 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.
Subd. 7. 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 ordinance.
Subd. 8. Display. All licenses shall be posted and displayed in plain view of the general
public on the licensed premises.
Subd. 9. Renewals. The renewal of a license issued under this section shall be handled in the
same manner as the original application. The request for renewal shall be made at least thirty (30) days
but no more than sixty (60) days before the expiration of the current license. The issuance of a license
issued under this ordinance shall be considered a privilege and not an absolute right of the licensee and
Upon the expiration of the license
shall not entitle the licensee to an automatic renewal of the license.
that is not renewed, the City may consider applications for the license.
Subd. 10. Fees. No license shall be issued under this ordinance until the appropriate license
fee shall be paid in full. The fee for a license under this ordinance shall be set by city council resolution.
Subd. 11. Prohibited Sampling or Vaping. No licensee or employee thereof may permit
sampling and vaping of e-cigarettes at a vaping establishment to any person under the age of eighteen
(18) years.
Subd. 12. Responsibility. All licensees under this ordinance shall be responsible for the
actions of their employees in regard to the sampling and vaping of e-cigarettes on the licensed premises,
and the sale of such an item or permission to vape or sample such item by an employee shall be
considered a sale by the license holder.
1155.1311. Compliance Checks and Inspections. All licensed premises (Tobacco Sales or Vaping
Establishment) shall be open to inspection by the city police or other authorized city official during
regular business hours. At least once per calendar year, an unannounced compliance check shall be
conducted at each licensed retail establishment. 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.
Subd. 1. Use of Minor. The compliance check shall be conducted by engaging, with written
consent of their parents or guardians, minors over the age of fifteen (15) years but less than eighteen (18)
years, to enter the licensed premise to attempt to purchase tobacco, tobacco products, or tobacco related
devices, or to sample or vape e-cigarettes.
a) Minors used for the purpose of compliance checks shall be supervised by city designated law
enforcement officers or other designated city personnel.
b) Minors used for the purpose of compliance checks shall not be guilty of unlawful possession
of tobacco, tobacco products, or tobacco related devices when such items are obtained as a
part of the compliance check.
c) No minor used in compliance checks shall attempt to use a false identification misrepresenting
the minor’s age. All minors lawfully engaged in a compliance check shall answer all questions
about the minor’s age asked by the licensee, agent or employee and shall produce
identification, if in the minor’s immediate possession, for which the minor is asked. (Amended
by Ord. 2010-1020)
Subd. 2. Failure of Compliance Check. If a retail establishment fails a compliance check, a
follow-up, unannounced compliance check shall be made within six (6) months or before the end of the
calendar year.
Subd. 3. Results of Compliance Checks. Results of the compliance checks shall be reported to
the City Council annually.
1155.1512. Violations and Penalties. Unless otherwise provided, the following acts shall be a
violation of this ordinance.
Subd. 1. Illegal Sales. It shall be a violation of this ordinance for any person to sell or
otherwise provide any tobacco, tobacco product, or tobacco related device to any minor.
Subd. 2. Illegal Sampling/Vaping. It shall be a violation of this ordinance for any person to
allow the sampling or vaping of e-cigarettes by any minor at a licensed vaping establishment.
Subd. 23. Illegal Possession. It shall be a violation of this ordinance for any minor to have in
possession any tobacco, tobacco product, or tobacco related device. This subdivision shall not apply to
minors lawfully involved in a compliance check.
Subd. 34. Illegal Use. It shall be a violation of this ordinance for any minor to smoke, chew,
sniff, or otherwise use any tobacco, tobacco product, or tobacco related device.
Subd. 45. Illegal Procurement. It shall be a violation of this ordinance for any minor to
purchase or attempt to purchase or otherwise obtain any tobacco, tobacco product, or tobacco related
device, and it shall be a violation of this ordinance for any person to purchase or otherwise obtain such
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, or tobacco related
device. This subdivision shall not apply to minors lawfully involved in a compliance check.
Subd. 56. Use of False Identification. It shall be a violation of this ordinance 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.
Subd. 7. Violation of State or Federal Laws and Regulations. A violation of state or federal law
or regulations related to tobacco, tobacco products, or tobacco-related devices (including, but not limited
to, Minn. Stat. §§ 144.411 to 144.417, Minn. Stat. Ch. 461, Minn. Stat. §§ 609.685-609.6855) shall
constitute a violation of this ordinance.
1155.1713. Administrative Penalty Procedure.
Subd. 1. Notice. Upon discovery of a suspected violation, the alleged violator shall be issued,
either personally or by mail, a citation that sets forth the alleged violation and which shall inform the
alleged violator of his or her right to be heard on the allegation.
Subd. 2. Hearings. If, within 20 days after receipt of a citation, a person accused of violating
this ordinance so requests, a hearing shall be scheduled, the date, time and place of which shall be
published and provided to the accused violator.
Subd. 3. Hearing Officer. The City Council or such other person as the Council may by
resolution designate, shall serve as the hearing officer.
Subd. 4. Decision. If the hearing officer determines that a violation of this ordinance did
occur, that decision, along with the hearing officer’s reasons for finding a violation and the penalty to be
imposed under Section 1155.19 of this ordinance, shall be recorded in writing a copy of which shall be
provided to the accused violator. Likewise, if the hearing officer finds that no violation occurred or finds
grounds for not imposing any penalty, such findings shall be recorded and a copy provided to the
acquitted accused violator.
Subd. 5. Appeals. Appeals of any decision made by the hearing officer shall be filed in the
district court for the city in which the alleged violation occurred.
Subd. 6. Misdemeanor Prosecution. Nothing in this Section shall prohibit the City from
seeking prosecution as a misdemeanor for any alleged violation of this ordinance. If the City elects to
seek misdemeanor prosecution, no administrative penalty shall be imposed.
Subd. 7. Continued Violation. Each violation, and every day in which a violation occurs or
continues, shall constitute a separate offense.
1155.1914. Penalties.
Subd. 1. Licensees and Employees. Any licensee, and any employee of a licensee, found to
have violated this ordinance, shall be charged an administrative penalty as follows:
a) $75 for a first violation of this ordinance;
b) $200 for a second violation at the same licensed premises within 24 months of the initial
violation;
c) $250 for a third violation at the same location within 24 months of the initial violation, and the
license shall be suspended for not less than seven (7) days.
Subd. 2. Other Individuals. Other individuals, other than minors regulated by subdivision 3 of
this Subsection, found to be in violation of this ordinance, shall be charged an administrative penalty of
$50.
Subd. 3. Minors. Minors found in unlawful possession of, or who unlawfully purchase or
attempt to purchase tobacco, tobacco products, or tobacco related devices, shall be charged an
administrative penalty of $25 per violation.
1155.2115. Exceptions and Defenses. Nothing in this ordinance 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
ordinance for a person to have reasonably relied on proof of age as described by State law.
1155.2316. Severability and Savings Clause. If any section or portion of this ordinance shall be
found unconstitutional or otherwise invalid or unenforceable by a court of competent jurisdiction, that
finding shall not serve as an invalidation or effect the validity and enforceability of any other section or
provision of this ordinance.
Section 2.
First Reading: November 5, 2014
Second Reading: November 18, 2014
Date of Publication: November 27, 2014
Date Ordinance Takes Effect: December 1, 2014
By: _____________________________
Eugene J. Maxwell, Mayor
ATTEST:
_________________________________
Amy Domeier, City Clerk
APPROVED AS TO FORM AND LEGALITY:
_________________________________ _________________
City Attorney Signature Date