CR 10-043 Amendments to Section 1155 Tobacco• May 18, 20101* Council Report 2010-043
AMENDMENTS TO SECTION 1155
TOBACCO
Proposed Action
Staff recommends that the Council approve the following motion: Move that the Hopkins City Council
approve Ordinance 2010-1020 for first reading_
Adoption of this motion will begin the process of amending Section 1155.13 of the Hopkins City Code to
clarify identification requirements for minors conducting tobacco compliance checks.
Overview
The Police Department uses minors to conduct tobacco compliance checks on businesses licensed to sell
tobacco. Last year Holiday Station Stores received an administrative penalty for the sale of tobacco to a
minor. An attorney for Holiday requested an Administrative Hearing based upon the language in section
1155.13 of the City Code.
The Police Department's practice is to send the minors into the store without any identification. The store
• clerk should ask for ID and, upon being told by the minor that he/she does not have an ID, the clerk should
refuse the sale. In the Holiday case, the clerk asked for the ID, was told that the minor did not have one, but
sold the minor tobacco anyway.
Section 1153.13 states: "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. The attorney for Holiday, claimed that the City's ordinance required the minor to
produce an ID "if any exists" anywhere. The City prevailed in the Administrative Hearing but the City
Attorney feels that the current language "if any exists" is overbroad and should be changed to: "if in the
minor's immediate possession."
Supporting Information
• City Attorney Memorandum
• tce number 2010-1020
a
J es A. Genellie
Assistant City Manager
•
• STEINER & CURTISS, P.A.
ATTORNEYS AT LAW
400 WELLS FARGO BANK BUILDING
1011 FIRST STREET SOUTH
HOPKINS, MN 55343
JEREMY S. STEINER*
WYNN CURTISS
JASON T. HUTCHISON
*Real Property Law Specialist, certified
by the Minnesota State Bar Association
MEMORANDUM
Date: 4 May 2010
To: Rick Getschow
Interim Chief Hanlin
Jim Genellie
Terry Obermaier
Anne Marie Buck
From: Jason T. Hutchison
Re: Tobacco Compliance Check Ordinance: Suggested Revision
Office: (952) 938-7635
Fax: (952)938-7670
Direct: (952) 253-0070
jhutchison@steinercurtiss.com
Via Email Only
This memo follows a January 2010 memo I sent suggesting a change to the Tobacco Compliance Check Ordinance.
• At that time, the issue was tabled until the Holiday Station Store matter had reached its end. As evidenced by my
email yesterday, it appears that Holiday Station Stores have decided not to appeal the decision of the Hearing Officer
finding them in violation of the sale of tobacco to minors ordinance.
To recap, this matter related only to the administrative citation for tobacco violations. Holiday challenged the City's
tobacco compliance check ordinance, which reads, in relevant part:
1155.13 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. [deleted]
Subd. 1. Use of Minor. The compliance check shall be conducted by [... ] 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) [deleted]
b) [deleted]
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.
The underlined language, "if any exists," was the grounds for Holiday's dispute over the validity of the
compliance check conducted at their store. They argued that the minor conducting compliance checks had
0 /Hopkins.civi /Tobacco/Memo.2.doc
•
•
a driver's license — that is to say, identification existed — and she should have been required to show it
when asked. Instead, the minor stated, "I don't have it with me," when asked to present her driver's
license.
Holiday challenged the administrative citation, a challenge that consumed considerable time and resources.
I ask that you consider clarifying the ordinance language as follows, which should avoid the issue in the
future:
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.
I believe this small change better states the intent of the ordinance and may be done as a simple text amendment.
Even though the recent administrative hearing was decided in the City's favor, the ordinance, as presently written,
could be clearer. I believe that this small change would help the City avoid the cost of other such future hearings.
Please don't hesitate to contact me with questions or comments.
/Hopkins.civiVrobacco/Mcmo.2.doc
JTH
• CITY OF HOPKINS
COUNTY OF HENNEPIN
ORDINANCE NO. 2010-1020
AN ORDINANCE AMENDING
SECTION 1155 OF THE HOPKINS CITY CODE
THE COUNCIL OF THE CITY OF HOPKINS HEREBY ORDAINS AS FOLLOWS:
Section 1. That Section 1155.13, Subdivision 1 c) be amended as
follows:
1155.13 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.
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 any emis tc if in
the minor's immediate possession, for which the minor is asked.
Section 2. The effective date of this ordinance shall be the
date of publication.
•
First Reading:
Second Reading:
Date of Publication:
Date Ordinance Takes Effect:
ATTEST:
Terry Obermaier, City Clerk
APPROVED AS TO FORM AND LEGALITY:
City Attorney Signature
•
May 18, 2010
June 1, 2010
June 10, 2010
June 10, 2010
Date
Gene Maxwell, Mayor