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HomeMy WebLinkAbout5H 2020 01 02 - Tobacco 21 Agenda Report Phone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com 4646 Dakota Street SE Prior Lake, MN 55372 CITY COUNCIL AGENDA REPORT MEETING DATE: JANUARY 21, 2020 AGENDA #: 5H PREPARED BY: SARAH SCHWARZHOFF, CITY ATTORNEY PRESENTED BY: SARAH SCHWARZHOFF AGENDA ITEM: CONSIDER ADOPTION OF AN ORDINANCE AMENDING SECTION 308 OF THE CITY CODE RELATING TO THE LEGAL AGE TO PURCHASE TOBACCO RELATED PRODUCTS GOAL AREA AND OBJECTIVE: Public Safety 5. Address threats to community standards through code enforcement. DISCUSSION: Current Circumstances In December 2019, the federal legislature adopted and the president signed a bill which increased the legal age to purchase tobacco from 18 to 21. The law went into effect immediately. As such, City staff is requesting that the Council adopt the proposed ordinance increasing the age to purchase tobacco from 18 to 21 in order to be in compliance with federal law. Chief Frazer has sent a notice to each license holder informing them of this change in the law. The change in legal age to purchase applies to tobacco related products including electronic cigarettes and vaping products that contain nicotine. The change does not affect the legal age to sell tobacco which remains 18. The tobacco licensing ordinance will be updated in a more comprehensive manner along with the City’s other licensing regulations in the spring, this change is limited to increasing the age to purchase tobacco in compliance with federal law. FINANCIAL IMPACT: None expected. ALTERNATIVES: 1. Motion and second as part of the consent agenda to adopt an ordinance amending Section 308 of the City Code relating to the legal age to purchase tobacco related products. 2. Motion and a second to remove this item from the consent agenda for additional discussion. RECOMMENDED MOTION: Alternative #1 ATTACHMENTS 1. Redline of revisions to Section 308 2. Ordinance Business Regulations City of Prior Lake 308/p1 SECTION 308 TOBACCO SUBSECTIONS: 308.100: PURPOSE 308.200: DEFINITIONS 308.300: LICENSE REQUIRED 308.400: BACKGROUND CHECKS 308.500 LICENSE FEE 308.600: PROHIBITED SALES 308.700: MOBILE SALES 308.800: VIOLATIONS AND PENALTIES 308.900: HEARING ON DENIAL OR VIOLATION 308.1000: AFFIRMATIVE DEFENSE 308.1100: SEVERABILITY 308.100: PURPOSE: The City Council finds that substantial scientific evidence exists that the use of tobacco-related products causes cancer, heart disease, and various other medical disorders. It is further finding of the City Council that the present legislative scheme of prohibiting sales of tobacco-related products to persons under the age of twenty- oneeighteen (1821) has proven ineffective in preventing such persons from using tobacco-related products. The City Council has concluded that persons under the age of twenty-one (21)minors have ready access to self-service merchandising, including vending machines, which sell tobacco-related products. The City Council has also concluded that the prohibition of the sale or dispensing of tobacco-related products through vending machines and the regulation of sales through self-service merchandising will thereby promote the health, safety and welfare of the residents of the City, particularly those residents under twenty-oneeighteen (1821) years of age. 308.200: DEFINITIONS: The following words and terms when used in this Section shall have the following meanings unless the context clearly indicates otherwise: Adult: A person 2118 years of age or older; Applicant: A person as defined herein, who completes or signs an application for a license to sell tobacco-related products individually or on behalf of a business. Business: The business of selling tobacco-related products; License Holder: The owner of the business licensed to sell tobacco-related products. Movable place of business: A business whose physical location is not permanent or is capable of being moved or changed. Person: One (1) or more natural persons, a partnership, including a limited partnership, a Business Regulations City of Prior Lake 308/p2 corporation, including a foreign, domestic, or nonprofit corporation, a trust, a political subdivision of the State, or any other business organization. Self-service Merchandising: A method of displaying tobacco-related products so that they are accessible to ten public without the intervention of an applicant, license holder or their agents or employees. Tobacco-related products: Any product containing, made, or derived from tobacco that is intended for human consumption, whether chewed, smoked, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, or any component, part, or accessory of a tobacco product, including, but not limited to, cigarettes; cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flour; cavendish; plug and twist tobacco; fine-cut and other chewing tobacco; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco, and other kinds and forms of tobacco. Tobacco-related products excludes any tobacco product that has been approved 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 being marketed and sold solely for such an approved purpose. Tobacco –related products includes electronic cigarettes defined as any electronic-smoking device that can be used to deliver nicotine or any other substances to the person inhaling from the device, including but not limited to electronic cigarettes, electronic cigars, electronic pipes or any other similar device. (Ord. Amd. 115-11, publ. 5/2/15) Vending Machine: Any mechanical, electric or electronic, self-service device which, upon insertion of money, tokens or any other form of payment, dispenses tobacco-related products and including vending machines equipped with manual, electric or electronic locking devices. (Ord. Amd. 115-11, publ. 5/2/15) 308.300: LICENSE REQUIRED. No person shall keep for retail sale, sell at retail or otherwise dispense any tobacco-related product at any place in the City without first obtaining a license and paying a license fee. 308.301 Application. An application for a license to sell tobacco-related products shall be made on a form provided by the City. The application shall include, but is not limited to requiring the full name of the applicant, the applicant's residential and business address and telephone numbers, the name of the proposed license holder, the business location for which the license is sought, and a copy of the educational materials the applicant intends to use to educate employees. The completed application along with the application fee shall be submitted to the City Manager or his designee for approval. If the City Manager determines that an application is incomplete, he or she shall return ten application to the applicant with notice of the deficiencies. (Ord. Amd. 115-11, publ. 5/2/15) 308.302 Action. The City Manager may either approve or deny the license, or may delay action for such reasonable period of time to permit the City to complete any investigation of the application or the applicant deemed necessary. If the Manager approves the license, a Business Regulations City of Prior Lake 308/p3 license shall be issued to the applicant. If the Manager denies the application, a notice of denial shall be sent to the applicant at the business address provided on the application along with the reasons for the denial. The notice shall also inform the applicant of their right to appeal the Manager's decision to the Council pursuant to the process set forth in subsection 308.800. If a license is mistakenly issued or renewed to an applicant or license holder, it shall be revoked by the City Manager upon the discovery that the person, applicant or license holder was ineligible for the license under this Section. (Ord. Amd. 115-11, publ. 5/2/15) 308.303 Term. All licenses are issued for a period of one (1) year. The license period is from January 1 to December 31. 308.304 Revocation or Suspension. Any license issued under this Section may be revoked or suspended as provided in the Violations and Penalties subsection of this Section pursuant to the process set forth in subsection 308.800. 308.305 Transfers. All licenses issued under this Section shall be valid only on the business 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 City Manager. 308.306 Display. Every license shall be conspicuously posted at the place of business for which the license is issued and shall be exhibited to any person upon request. 308.307 License Renewals. Any person intending to renew a tobacco-related license must submit a renewal application, on a form provided by City, and pay the application and license fee. A license renewal application and license fee must be submitted to the City no later than forty-five (45) days prior to the expiration of the license. The renewal of a license under this Chapter 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 under this Chapter shall be considered a privilege and not an absolute right of the applicant and shall not entitle the holder to an automatic renewal of the license. (Ord. 97-2, 1-6-97) (Ord. Amd. 115-11, publ. 5/2/15) 308.308 Late Fee. A late fee of Fifty Dollars ($50.00) will be imposed on any licensee who fails to submit a timely renewal application. 308.309 Instructional Program. No person shall be issued a license or renewal license to sell tobacco-related products unless an applicant or license holder has an approved program for instructing all employees at the business premises for which the license was issued, in the legal requirements pertaining to the sale of tobacco-related products, including, but not limited to, reviewing the law on the sale of tobacco-related products, providing information on the health risks of using tobacco-related products, and requiring employees to request identification from every customer who appears to be under 27 years of age on every transaction. No license shall be issued unless the applicant or license holder signs a City form attesting that each employee of the applicant or license holder has received training and instruction on the sale of tobacco-related products and the date such training occurred. The training shall include information that the sale of Business Regulations City of Prior Lake 308/p4 tobacco-related products to persons under the age of twenty-one (21)to minors is illegal, explains what proof of age is legally acceptable, and that a sale to a person under the age of twenty-one (21)minor can subject the applicant or license holder and their employees to criminal and/or civil liability. (Ord. Amd. 115-19; publ. 07/25/15) 308.310 Denials. 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: (1) The applicant is under the age of 18 years. (2) The applicant has been convicted within the past five years of a violation of any provision of this Section or a violation of a Federal, State, or local law, ordinance provision, or other regulation relating to tobacco or tobacco products, or related tobacco devices. (3) The applicant or license holder has had a license to sell tobacco, tobacco products or tobacco-related devices revoked within the preceding twelve (12) months of the date of application. (4) The applicant fails to provide any information required on the City license application, or provides false or misleading information. (5) The applicant or license holder has outstanding fines, penalties or property taxes owed to the City. 308.400 BACKGROUND CHECK: In order to protect the health, safety and welfare of the public, the Prior Lake Police Department is authorized to conduct a criminal history background investigation and/or driver’s license check on all persons who have applied for, or who will sell, hawk, vend, peddle or solicit under a license issued herein. The results of the criminal history background investigation and/or driver’s license check may be cause for denial of the license at the sole discretion of the City. (Ord. Amd. 111-01, publ. 1/1/11) 308.500: LICENSE FEE: The application fee shall be determined by the City Council and shall be paid at the time of application. License fees are not pro-rated. 308.600: PROHIBITED ACTS: 308.601 Sales Prohibited. (1) No person shall sell, offer for sale, give away, furnish or otherwise deliver any tobacco -related product: a. To any person under the age of twenty-oneeighteen (1821); b. By means of any type of vending machine; Business Regulations City of Prior Lake 308/p5 c. By means of self-service merchandising or any means whereby the customer may have access to such items without having to request the item from the license holder, their agents or employees. All tobacco related products shall be stored behind a counter or other area not freely accessible to customers. d. By any other means, or to any other person, prohibited by Federal, State or other local law, ordinance provision, or other regulation. (2) Exception. A license holder who operates an establishment that sells only tobacco - related products is exempt from the self-service merchandising provision if the license holder prohibits anyone under twenty-oneeighteen (1821) years of age from entering the establishment, unless accompanied by a parent, and the license holder conspicuously displays a notice prohibiting persons under twenty-oneeighteen (1821) years of age from entering the establishment unless accompanied by a parent. 308.602 Tobacco Lounges Prohibited. Tobacco lounges are prohibited. A tobacco lounge is an area of a commercial establishment where tobacco is used. This prohibition does not prohibit the sampling of tobacco in a tobacco products shop by an employee, customer or potential customer for the limited purpose of sampling a product, product instruction, or testing. For the purposes of this subdivision, a tobacco products shop is a retail establishment with an entrance door opening directly to the outside that derives more than 90 percent of its gross revenue from the sale of tobacco-related products, and which prohibits persons under the age of twenty-one (21) minors from entering the premises at all times. Tobacco products shop does not include a tobacco department or section of any individual business establishment with any type of liquor, food, or restaurant license. (Ord. Amd. 115-13, publ. 5/2/15) 308.700: MOBILE SALES: No license shall be issued for the sale of tobacco-related products at a movable place of business, including but not limited to motorized vehicles, mobile sales kiosks, or trailers. 308.800: VIOLATIONS AND PENALTIES. 308.801 Revocation or Suspension. Any violation of this Section shall be grounds to revoke or suspend a license. 308.802 Criminal Penalty. As set forth in Minnesota Statues Chapter 609: (1) It shall be a gross misdemeanor for anyone to sell tobacco-related products to a person under the age of twenty-oneeighteen (1821) years. (2) It shall be a misdemeanor to furnish tobacco-related products to a person under the age of twenty-oneeighteen (1821) years. (3) It shall be a petty misdemeanor for anyone under the age of twenty-oneeighteen (1821) years to use, purchase, attempt to purchase, or possess tobacco-related products. This Section shall not apply to a person under the age of twenty-oneeighteen (1821) years Business Regulations City of Prior Lake 308/p6 who purchases or attempts to purchase tobacco-related products while under the direct supervision of a responsible adult for training, education, research, or enforcement purposes. (4) It shall be a petty misdemeanor for anyone under the age of eighteen (18) years to sell, furnish, or give away any tobacco-related products. This Section shall not apply to an employee of ten license holder under the age of eighteen (18) years while stocking tobacco-related products. (5) Upon discovery of a suspected violation, the City Police shall issue a criminal citation to the individual who made the prohibited sale and, where appropriate, to the person under the age of twenty-one (21)minor who purchased the tobacco-related products as set forth in the previous paragraphs of this subsection. (Ord. Amd. 115-11, publ. 5/2/15) 308.803 Civil Enforcement. The license holder shall be responsible for the conduct of its agents or employees while on the licensed premises. Any violation of this Section shall be considered an act of the license holder for purposes of imposing a civil penalty, license suspension, or revocation. Each violation, and every day in which a violation occurs or continues, shall constitute a separate offense. (1) Notice of Violation. Upon the occurrence of a suspected violation, the Police Department shall inform the City Manager of the suspected violation. The City Manager shall then send to the license holder a written notice of the civil violation. The notice shall advise the license holder of the penalty and the license holder's right to request a hearing regarding the violation of this ordinance pursuant to subsection 308.800. (2) Civil Penalties. Each license issued hereunder shall be subject to suspension or revocation for violation of any provisions of this chapter or the laws of the state of Minnesota as follows: a. First Violation: The first violation of this chapter shall be punishable by a civil penalty of five hundred dollars ($500.00) and a suspension of the license for three (3) consecutive days. b. Second Violation: A second violation of this chapter within any twenty four (24) month period shall be punishable by a civil penalty of seven hundred fifty dollars ($750.00) and a suspension of the license for five (5) consecutive days. c. Third Violation: A third violation of this chapter within any twenty four (24) month period shall be punishable by a civil penalty of one thousand dollars ($1,000.00) and a suspension of the license for ten (10) consecutive days. d. Subsequent Violation: A fourth or subsequent violation of this chapter within any thirty six (36) month period shall be punishable by revocation of the license. Any licensee whose license is revoked under this section shall not be eligible for renewal for a period of two (2) license years after the revocation. (Ord. Amd. 115-19; publ. 07/25/15) Business Regulations City of Prior Lake 308/p7 (3) Any civil penalty, suspension or revocation or combination thereof under this Section does not preclude criminal prosecution under this ordinance or Minnesota Statute Section 609- 685. 308.900: HEARING ON DENIAL OR VIOLATION. Following receipt of a notice of denial issued under subsection 308.300 or a notice of a violation and penalty issued under subsection 308.700, an applicant or license holder may request a hearing before the City Council. A request for a hearing shall be made by the applicant or license holder in writing and filed with the City Manager within ten (10) days of the mailing of the notice of denial or alleged violation. Following receipt of a written request for hearing, the applicant or license holder shall be afforded an opportunity for a hearing before the Council within thirty days of such written request. If a committee of the Council conducts the hearing it shall report its findings and make a recommendation to the full Council. (Ord Amd 107-12, publ 072107) 308.901 Findings. If after the hearing the applicant or license holder is found ineligible for a license, or in violation of this Ordinance, the Council may affirm the denial, impose a fine, issue a suspension or revocation, or impose any combination thereof as set forth in subsection 308.700. 308.902 Default. If the applicant or license holder has been provided written notice of the denial or violation and if no request for a hearing is filed within the 10-day period, then the denial, penalty, suspension or revocation imposed in subsection 308.700 shall take immediate effect by default. The City Manager shall mail notice of the denial, fine, suspension or revocation to the applicant or license holder. The City Police shall investigate compliance with the suspension or revocation. 308.1000: AFFIRMATIVE DEFENSE. It is an affirmative defense to a charge under this Section if the license holder proves by a preponderance of the evidence that the license holder reasonably and in good faith relied on proof of age as described in Chapter 340A.503, subd. 6 of the Minnesota Statutes, in making the sale. 308.1100: SEVERABILITY. If any provision of this Section is for any reason held to be invalid, such decision shall not affect the validity of the remaining provisions of this Section. Business Regulations City of Prior Lake 308/p8 (This Space Intentionally Blank For Future Amendments) 4646 Dakota Street SE Prior Lake, MN 55372 CITY OF PRIOR LAKE ORDINANCE NO. 120-01 AN ORDINANCE AMENDING SECTION 308 OF THE PRIOR LAKE CITY CODE RELATING TO THE LEGAL AGE TO PURCHASE TOBACCO RELATED PRODUCTS AND ADOPTING BY REFERENCE CITY CODE SECTION 104; WHICH, AMONG OTHER THINGS, CONTAINS PENALTY PROVISIONS. THE CITY COUNCIL OF THE CITY OF PRIOR LAKE, MINNESOTA, ORDAINS: Section 1. City Code Subsection 308.100 “Purpose” is amended by replacing both instances of the age eighteen (18) with the age twenty-one (21) and by replacing the word “minors” with the phrase “persons under the age of twenty-one (21). Section 2. City Code Subsection 308.200 “Definitions” is amended by replacing the age 18 with the age 21 in the definition of “Adult”. Section 3. City Code Subsection 308.309 “Instructional Program” is amended by replacing both instances of the word “minor” with the phrase “persons under the age of twenty-one (21). Section 4. City Code Subsection 308.601 “Sales Prohibited” is amended by replacing all three instances of the age eighteen (18) with the age twenty-one (21). Section 5. City Code Subsection 308.602 “Tobacco Lounges Prohibited” is amended by replacing the word “minors” with the phrase “persons under the age of twenty- one (21). Section 6. City Code Subsection 308.802 “Criminal Penalty” is amended by replacing the age eighteen (18) with the age twenty-one (21) in provision (1), (2), (3), and (5). Provision (4) shall remain eighteen (18). Section 7. City Code Section 104 entitled “General Penalty” is adopted in its entirety, by reference, as though repeated verbatim herein. Section 8. This ordinance shall become effective upon its passage and publication. Passed by the City Council of the City of Prior Lake this 21st day of January 2020. ATTEST: _________________________ __________________________ Jason Wedel, City Manager Kirt Briggs, Mayor Published in the Prior Lake American on the 1st day of February 2020.