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Second Reading: Approve Ord. , Establishing a Moratorium on the sale of E-Cigarettes-\\ % CITY OF HOPKINS Memorandum To: Honorable Mayor and Council Members From: Kris Luedke, City Clerk Copy: Mike Morrison, City Manager Date: October 15, 2013 Subject: Second Reading of Ordinance 2013-1068 City Clerk Staff recommends that the Council approve the following motion: Approve Ordinance 2013- 1068 establishing a moratorium on the sale of e-ci arg ettes. There have been no changes in this ordinance since the first reading. Attachments: Ordinance 2013-1068 Summary of Ordinance 2013-1068 CITY OF HOPKINS HENNEPIN COUNTY, MINNESOTA ORDINANCE NO. 2013-1068 AN INTERIM ORDINANCE FOR THE PURPOSE OF PROTECTING THE PLANNING PROCESS AND THE HEALTH, SAFETY AND WELFARE OF CITY RESIDENTS; AND RESTRICTING THE USE AND SALE OF &CIGARETTES AND RELATED PRODUCTS THE CITY COUNCIL OF THE CITY OF HOPKINS HEREBY ORDAINS AS FOLLOWS: Section 1. Background and Findings: 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 Electronic cigarettes, commonly known as e -cigarettes, and other similar devices provide new methods for nicotine delivery that do not involve burning tobacco. E -cigarettes heat a liquid infused with nicotine and other unknown ingredients and the vapor is inhaled like tobacco smoke. Frequently, e -cigarettes and the liquid products are sold at locations where customers are permitted to "sample" the products on site before purchasing them. 1.04 The FDA 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. 1.06 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 Hopkins 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 tudy /Moratorium. 2.01. A study is authorized to be conducted by City staff to determine whether it is necessary to 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 Hopkins, 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 them. 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 enforce 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. Every 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 held invalid or unenforceable by a Court of competent jurisdiction, it shall not invalidate any other section, provision or part of this Interim Ordinance. Section 6. Effective Date. This Interim Ordinance shall be effective the day of its publication. First Reading: Second Reading: Date of Publication: ATTEST: Kristine Luedke, City Clerk APPROVED AS TO FORM AND LEGALITY: City Attorney Signature Date October 1, 2013 October 15, 2013 October 24, 2013 BY: Eugene J. Maxwell, Mayor CITY OF HOPKINS COUNTY OF HENNEPIN SUMMARY OF ORDINANCE NO. 2013-1068 INTERIM ORDINANCE FOR THE PURPOSE OF PROTECTING THE PLANNING PROCESS AND THE HEALTH, SAFETY AND WELFARE OF CITY RESIDENTS; AND RESTRICTING THE USE AND SALE OF &CIGARETTES AND RELATED PRODUCTS Summary: 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 them. 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. Effective Date: This ordinance shall take effect upon publication. A full copy of the text of this ordinance is available from the City Clerk. /s/ Eugene Maxwell, Mayor Attest: /s/ Kristine Luedke, City Clerk Published in the Sun Sailor: October 24, 2013