Memo - Liquor Compliance Ordinance Issues-Butch's Mainstreet Market
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Administrative Services Department
Office of the City Manager
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Memorandum
To:
Honorable Mayor
Members to the City Council
Steven C. Mielke, City Manager
March 2, 2001
Liquor Compliance Ordinance Issues - Butch's Mainstreet Market
From:
Date:
Subject:
During this years round of tobacco compliance checks a number of citations were
issued.
In the case of Butch's Mainstreet Market, the sale of tobacco to a minor was made.
The clerk in this case happened to be the spouse of the license holder, Todd Treichter.
Mrs. Treichter made the sell even after asking for an 1.0. and being told that the youth
did not have one.
As the result of the sale, a citation was issued to the clerk, Mrs. Treichter for making the
sale and a citation was also issued to the license holder, Mr. Treichter, as per the city
ordinance and state law. Both of these fees are $75.00. Mr. Treichter has objected to
paying two fees' in this case and in fact has issues relative to the methods in which the
compliance check was conducted.
A review of this violation was conducted by the Chief of Police who has found that the
compliance check was done appropriately and that the imposition of the fee against the
clerk was appropriate. The staff has also verified with the City Attorneys office that a
double fee was appropriate in this case according to the ordinance. The ordinance
does not allow for an official appeal to the City Council. Under the ordinance, an
appeal is made to the City Manager or his designee, who is the Chief of Police, or is
taken to district court for disposition. Mr. Treichter has asked to talk with the City
Council about circumstances around this issue.
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Hopkins City Code
1155.03, Subd. 8
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Subd. 8. Vendinq 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 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.
Subd. 10. Individuallv packaqed. "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.
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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.
1155.05. License. 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.
Subd. 1. Application. An application for a license to sell tobacco,
tobacco products, or tobacco products, or tobacco related devices shall be made
on a fo~ provided by the city. The application shall contain full name of the
applicant, the applicant" 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.
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Section 1155
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Hopkins City Code
(Rev., Nov., 1997) 1155.01
Section 1155 - Tobacco Ordinance
1155.01. Puroose. This ordinance shall be intended to regulate the sale,
possession, and use of tobacco, tobacco products, and tobacco related 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, and tobacco
related devices, and to further the official public policy of the State of Minnesota in
regard to preventing young people from starting smoking as stated in M.S. 144.391.
1155.03. Definitions. Subdivision 1. The following words and terms when used in
this section shall have the following meanings unJess the context clearly indicates
otherwise:
Subd. 2. Tobacco or Tobacco Products. "Tobacco or Tobacco Product"
shall mean cigarettes, cigars, 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.
Subd. 3. Tobacco Related Devices.
cigarette papers or pipes for smoking.
"Tobacco Related Devices" shall mean
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 Merchandisinq. "Self-service merchandising" shall
mean a method of displaying tobacco, tobacco products, or tobacco r~lated devices
so that they are accessible to the public without the intervention of the
licensee, their agents or employees.
Section 1155
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Hopkins City Code
1155.03, Subd. 8
Subd. 8. Vendinq 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 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.
Subd. 10. Individually packaqed. "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.
1155.05. License. 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.
Subd. 1. Application. An application for a license to sell tobacco,
tobacco products, or tobacco products, or tobacco related devices shall be made
on a form provided by the city. The application shall contain full name of the
applicant, the applicant" 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.
Section 1155
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Hopkins City Code
1155.05, Subd. 2
Subd. 2. Denial. The following shall be
issuance or renewal of a license under this Section.
exhaustive or exclusive:
grounds for denying the
The following list is not
a) The applicant is under the age of 18 years.
b) The applicant has been convicted within the past five
violation of any provisions of this ordinance or a violation
State or local law, ordinance provision, or other regulation
tobacco, tobacco products, or tobacco related devices.
years of a
of Federal,
relating to
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.
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
December 31 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 without the prior approval of the council.
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.
Section 1155
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Hopkins City Code
1155.05, Subd. 9
Subd. 9. Traininq. Every retail business requesting a license under
this ordinance shall implement a training program for employees regarding laws
relating to the sale of tobacco products. Every licensee shall certify on its
annual tobacco application that all employees have been trained to comply with
state laws regarding the sale of tobacco products.
Subd. 10. 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 shall not entitle the licensee to an automatic renewal of the
license.
Subd. 11. Minor Emolovees. Any person that is under the age of 18 and
employed by a licensed retail establishment may sell tobacco products provided
that the parents or guardians of that minor, have signed a written consent
allowing the minor to sell tobacco products.
1155.07. 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.
1155.09. 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 Sinqle Packaqes - 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.
Section 1155
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Hopkins City Code
1155.09, Subd. 2
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. Vendinq 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.
1155.11. Resoonsibilitv. 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.
1155.13 Comoliance Checks arid Insoections. All licensed premises 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.
a) Minors used for the purpose of compliance checks shall be. supervised by
city designated law enforcement officers or other designated city
personnel.
Section 1155
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Hopkins City Code
1155.13, Subd. 1
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 any exists, for which the minor is asked.
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.
1155.15. Violations and Penalties. Unless otherwise provided, the following acts
shall be a violation of this ordinance.
Subd. 1. Illeaal 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. Illeaal 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. 3. Illeaal Use.
minor to smoke, chew, sniff,
tobacco related device.
It shall be a violation of this ordinance for any
or otherwise use any tobacco, tobacco product, or
Subd. 4. Illeaal 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. 5. 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.
section 1155
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Hopkins City Code
1155.17
1155.17.
Administrative Penaltv 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 vio~ator.
Subd. 3. Hearinq Officer. The City Councilor 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 1000
of this ordinance, shall be recorded in writing a copy of which sha~l 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. Anneals. 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.
1155.19.
Penalties.
Subd. 1. Licensees and Emnlovees.
licensee, found to have violated this
administrative penalty as follows:
Any licensee, and any employee of a
ordinance, shall be charged an
a) $75 for a first violation of this ordinance;
b) $200 for a second violation at the same licensed premises wi thin 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.
Section 1155
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Hopkins City Code
1155.19, Subd. 2
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.
1155.21. Exceotions 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.
1155.23. Severabilitv and Savin as 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 1155 was amended by Ord. 97-805)
Section 1155
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