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CR 97-174 Tabacco Ordinance 97-805October 3, 1997 Council Report 97 -174 Proposed Action REGULATING THE SALE OF TOBACCO ORDINANCE NO. 97 -805 Staff recommends approval of the following motion: Move that the Hopkins City Council adopt Ordinance 97-805, Regulating the Sale of Tobacco for first reading. Approval of this ordinance will serve to enforce existing taws, and protect minors against the serious effects associated with illegal use of tobacco. Overview Recent changes in Minnesota law mandate certain requirements regarding the regulation of the sale of tobacco including mandatory penalties for sales to minors or purchase by minors; annual compliance checks; and restriction of self- service sales. Prknary Issues to Consider • Increase license fee to recover the estimated cost of enforcing this ordinance as allowed by State Statute. • Should vending machine sales of tobacco be prohibited? • Enforcement of administrative penalties Supporting Documents Ordinance 97-805 • 1996 -97 Compliance Check Report • Youth Access to Tobacco Legislation Chapter 227/H.P.117 Connie J. Kurtz, Crime Prevention Specialist Hopkins Police Department Council Report 97 -174 Page 2 Issues to Consider New state law allows cities to establish a license fee for the sale of tobacco in an amount to recover the estimated cost of enforcing this ordinance. Current tobacco license fees in Hopkins are insufficient to cover this cost. Because state law now requires yearly compliance checks of all tobacco licensees, there is a need to increase the license fee to recover the cost of performing the compliance checks in addition to any administrative duties associated with the performance of the compliance checks. Increase license fee to recover the estimated cost of enforcing this ordinance as allowed by State Statute. Should vending machine sales of tobacco be prohibited? At this time state law does not prohibit vending machines sales in facilities that cannot be entered at anytime by minors. Staff concern is whether or not the service clubs (Legion, VFW, Elks, etc.) and the private country club comply with this restriction. Generally, minors are not allowed in the service clubs without parents. However, if they are accompanied by an adult /parent, the vending machine is then accessible to them and a violation has occurred. In addition, at the private country club, there are no age restrictions for entry to the club; therefore, minors would have access to the vending machine. Council needs to consider whether or not vending machines in these locations should be prohibited, or require an alternative method of selling tobacco at these locations. Enforcement of administrative penalties The administrative penalties described in the ordinance are the minimum amounts allowed by state statute. Staff is satisfied with these amounts, however, should the City Council decide the penalties are not sufficient, the administrative penalties may be increased. Alt rnatives 1. Approve Ordinance 97 -805 - Regulating the Sale of Tobacco 2. Continue the item for further discussion Staff recommends alternative one. CITY OF HOPKINS HENNEPIN COUNTY, MINNESOTA ORDINANCE NO. 97-805 REGULATING THE SALE OF TOBACCO PRODUCTS BE IT ORDAINED By the Council of the City of Hopkins that Section 1155, (Tobacco) of the Hopkins City Code be deleted in its entirety. BE IT ORDAINED that the following ordinance replace Section 1155 in the Hopkins City Code Regulation: Section 100. PURPOSE. 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 Minn. Stat. 144.3 91. Section 200. DEFINITIONS. The following words and terms when used in this section shall have the following meanings unless the context clearly indicates otherwise: Subd. 1 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. 2 Tobacco Related Devices. "Tobacco Related Devices" shall mean cigarette papers or pipes for smoking. Subd. 3 Minor. "Minor" shall mean any natural person who has not yet reached the age of eighteen (18) years. Subd. 4 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 5 License Holder Qr 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. 6 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. 7 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. 8 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. 9 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. 10 Sale. "Sale" shall mean any transfer of goods for money, trade, barter, or other consideration. Subd. 11 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. Section 300. 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. 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. 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. The applicant fails to provide any information required on the city license application, or provides false or misleading information. 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 Tenn. 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 3 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. Subd. 9 Training. 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 Employees. 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. Section 400. 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. Section 500. PROHIBITED SALES. Sjibd.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. 4 Cartons and other multi -pack units may be offered and sold through open displays accessible to the public. 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. 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. 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 Salek. 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. Section 600. 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. Section 700. 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. 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. 5 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 the purpose of compliance checks shall not be guilty of unlawful possession tobacco, tobacco products or tobacco related devices when such 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. 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. Section 800. 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 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 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. 4 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. 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 6 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 900. 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. Suxid. 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 1000 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. Sjibd. 7 Continued Violation. Each violation, and every day in which a violation occurs or continues, shall constitute a separate offense. Section 1000. 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; 7 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. Section 1100. 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. Section 1200. 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 1300. EFFECTIVE DATE. This ordinance shall be in effect from and after its passage and publication according to the law. First Reading of Ordinance 97 -805 Second Reading of Ordinance 97 -805 Publication of Summary Ordinance 97 -805 Effective Date of Ordinance 97 -805 Attest: Terry Obermaier, City Clerk City Attorney Signature $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. (APPROVED AS TO FORM AND LEGALITY) October 7, 1997 October 21, 1997 October 29, 1997 November 18, 1997 Charles D. Redepenning, Mayor 8 Date Memo To: Chemical Health Commission Members From: Renee A. Meuwissen, Crime Prevention Officer Date: March 28, 1996 Re: Tobacco Compliance Checks The tobacco compliance checks have now been completed. The first set of checks were done on March 16, 1996. The underage checker was a female Plymouth Explorer, Erica Hertz. Erica went into fourteen different businesses. The Oakridge Country Club was not checked as they were closed due to it being their Sabbath. Of the fourteen businesses checked by Erica, she was able to purchase tobacco in nine. Erica was asked for identification in several businesses, but it was not checked closely enough or the clerk could not subtract, as several still sold tobacco, even after checking the identification. Erica used her Minnesota picture drivers license that was not altered in any way. The second set of checks were completed on March 27, 1996. The underage checker was a male Plymouth Explorer, Jerrod Simkins. Jerrod tumed sixteen on March 20, 1996. Jerrod also went into fourteen different businesses. Of the fourteen business, Jerrod was able to purchase tobacco in nine businesses. Two businesses were aborted. The Hopkins House Hotel no longer has a cigarette machine and Hopkins Liquor was not open during the hours of the check. Attached you will find copies of the completed forms from the checks. In seeing the results of this compliance check, I feel that there is a real need to work on this as a project. Both the compliance checkers and I were surprised at how easy it is to obtain tobacco by a minor in the city of Hopkins. Vendor Name Address Sold Tobacco 2/8/97 Sold Tobacco 3/96 Tom Thumb 716 11th Avenue S yes yes Hopkins Liquor 712 1 lth Avenue S no abort- closed Oasis Market 1120 7th Street S abort-knew clerk yes Holiday Express 300 1 lth Avenue S yes no Hopkins Bowl 107 Shady Oak Rd no yes Leaman's Liquor 120 Shady Oak Rd yes no VFW 100 Shady Oak Rd no yes Jiffy Oil 1702 Mainstreet yes no Mainstreet Market 1619 Mainstreet no not in business American Legion 10 12th Avenue N yes yes Big 10 1106 Mainstreet yes not in business Archies 1022 Mainstreet no yes Tait's Super Valu 25 11th Avenue North yes yes Richard's Liquor 22 10th Avenue North yes no Back Door Tobacco 813 Mainstreet yes not in business Best Buy Liquor 812 Mainstreet yes no Mainstreet Bar & Grill 814 Mainstreet yes no Mitch's Tavern 819 Mainstreet yes no Elk's 30 8th Avenue S no yes Midnite Market 5 6th Avenue S yes yes Jim's Liquor 3 6th Avenue S no yes East End Bottle Shop 9191 Excelsior no yes Ken's Spur 8971 Excelsior yes did not do G & D Express 108 Blake Rd N no no Oasis Market 240 Blake Rd N abort-knew clerk yes Knollwood Standard 525 Blake Rd N no yes Kenny's Market 520 Blake Rd N yes no Oasis Market 530 Blake Rd N yes yes Lindee's 919 Cambridge no yes Oakridge Country 700 Oakridge Road abort- closed abort- closed Hopkins House 1501 Highway 7 no yes Crossroads 76 1675 Highway 7 no yes MGM Liquor 495 17th Avenue N yes yes Tobacco Compliance Check Results 1996 & 1997 Vendor Name Address Sold Tobacco 2/8/97 Sold Tobacco 3/96 Tom Thumb 716 I I th Avenue S yes yes Hopkins Liquor 712 1 l th Avenue S no abort- closed Oasis Market 1120 7th Street S abort -knew clerk yes Holiday Express 300 1 lth Avenue S yes no Hopkins Bowl 107 Shady Oak Rd no yes Leaman's Liquor 120 Shady Oak Rd yes no VFW 100 Shady Oak Rd no yes Jiffy Oil 1702 Mainstreet yes no Mainstreet Market 1619 Mainstreet no not in business American Legion 10 12th Avenue N yes yes Big 10 1106 Mainstreet yes not in business Archies 1022 Mainstreet no yes Tait's Super Yalu 25 11th Avenue North yes yes Richard's Liquor 22 10th Avenue North yes no Back Door Tobacco 813 Mainstreet yes not in business Best Buy Liquor 812 Mainstreet yes no Mainstreet Bar & Grill 814 Mainstreet yes no Mitch's Tavern 819 Mainstreet yes no Elk's 30 8th Avenue S no yes Midnite Market 5 6th Avenue S yes yes Jim's Liquor 3 6th Avenue S no yes East End Bottle Shop 9191 Excelsior no yes Ken's Spur 8971 Excelsior yes did not do G & D Express 108 Blake Rd N no no Oasis Market 240 Blake Rd N abort-knew clerk yes Knollwood Standard 525 Blake Rd N no yes Kenny's Market 520 Blake Rd N yes no Oasis Market 530 Blake Rd N yes yes Lindee's 919 Cambridge no yes Oakridge Country 700 Oakridge Road abort- closed abort- closed Hopkins House 1501 Highway 7 no yes Crossroads 76 1675 Highway 7 no yes MGM Liquor 495 17th Avenue N yes yes Tobacco Compliance Check Results 1996 & 1997 Youth Access to Tobacco Legislation Chapter 2271 H.F. 117 (See Appendix for complete text.) Chapter 227: Legislative Provisions State law will not preempt local ordinances, either current or future, for more restrictive regulations. • Tobacco manufacturers must report annually the presence of aininonia, arsenic, cadmium, formaldehyde and lead in their tobacco products in their burned and unburned state.. • Penalties for the clerk who illegally sells tobacco to minors. P. 1/1 Page 5 This law was created to provide a uniform floor of provisions to reduce youth access to tobacco without preempting local control. Notable provisions in the youth tobacco access law are; • Licensing of all tobacco retail outlets. • Graduated penalties against the license holder for the illegal sale of tobacco to minors. • Mandatory compliance checks once every year. Minors participating must have parental pennission. Ban on self- service displays of single packs of cigarettes and smokeless tobacco and on vending machines except in facilities that cannot be entered by minors (until the full FDA ban on self- service goes into effect.) • Suspension of the drivers license of a minor who is found guilty of a petty misdemeanor for using a driver's license to purchase tobacco, or of an adult who is found guilty of a petty misdemeanor for allowing a minor to use the adult's drivers license to purchase .tobacco.