An ordinance relating to the sale, possession, and use of tobacco, tobacco products, and tobacco related devices in the City of Staples and to reduce the illegal sale, possession, and use of such items to and by minors, and deleting the prior cigarette ordinance.

THE CITY COUNCIL OF STAPLES DOES ORDAIN AS FOLLOWS:

DELETION. Section 10.4 of the Staples City Code is hereby deleted in its entirety, to be replaced by the following provisions of this ordinance:

SECTION 10.4 Tobacco, Tobacco Products, Tobacco Related Devices and Tobacco Shops.

SUBDIVISION 1. Purpose. This section 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 to smoke as stated in Minn. Stat. § 144.391.

SUBDIVISION 2. Definitions and Interpretations. Except as may otherwise be provided or clearly implied by content, all terms shall be given their commonly accepted definitions. The singular shall include the plural and the plural shall include the singular The masculine shall include the feminine and neuter, and vice-versa. The term “shall” means mandatory and the term “may” means permissive. The following terms shall have the definitions given to them:

a. “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 section. Compliance checks shall involve the use of minors as authorized by this section. 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. Compliance checks may also be conducted by other units of government for the purpose of enforcing appropriate Federal, State or Local laws and regulations relating to tobacco, tobacco products, and tobacco related devices.

b. “Direct Supervision” shall mean being in the immediate presence and witnessing the sale of tobacco products by a minor employee.

c. “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 in this subdivision shall not be considered individually packaged.

d. “Loosies” shall mean the common term used to refer to a single or individually packaged cigarette.

e. “Minor” shall mean any natural person who has not yet reached the age of eighteen (18) years.

f. “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 transactions.

g. “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.

h. “Sale” shall mean any transfer of goods for money, trade, barter, or other consideration.

i. “Self-Service merchandising” shall mean open displays of tobacco, tobacco products, or tobacco related devices in any manner where any person shall have access to the tobacco, tobacco products, or tobacco related devices, without the assistance or intervention of the licensee or the licensee’s employee. The assistance or intervention shall entail the actual physical exchange of the tobacco, tobacco product, or tobacco related device between the customer and the licensee or employee. Self-service merchandising shall not include vending machines.

j. The words “Tobacco Shop” mean a self-contained, department within a larger retail establishment, in which tobacco is offered for sale, with or without other non-tobacco products, which includes open air display of individual products for inspection and selection by patrons, and which is continuously staffed by an employee from which persons under 18 years of age are prohibited from entering, and which otherwise complies with the requirements of Minnesota Statute Section 461.18, Subd. 1(d).

k. “Tobacco” or “Tobacco Products” shall mean any substance or item containing tobacco leaf, including but not limited to, cigarettes; cigars; pipe tobacco; snuff, fine cut or other chewing tobacco; cheroots; stogies; perique; granulated, plug cut, crimp cut, ready-rubbed, and other smoking tobacco; snuff flowers; cavendish; shorts; plug and twist tobaccos; dipping tobaccos; refuse scraps, clippings, cuttings, and sweepings of tobacco; and other kinds of forms of tobacco leaf prepared in such manner as to be suitable for chewing, sniffing, or smoking.

i. “Tobacco Related Devices” shall mean any tobacco product as well as a pipe and rolling papers.

m. Vending Machine” shall mean any mechanical, electric or electronic, or other type of device which dispenses tobacco, tobacco product, or tobacco related device upon the insertion of money, tokens, or other form of payment directly into the machine by the person seeking to purchase the tobacco, tobacco product, or tobacco related device.

SUBDIVISION 3. License. No person shall sell or offer to sell any tobacco, tobacco product, or tobacco related device without first having obtained a license to do so from the City of Staples.

a. Application. An application for a license to sell tobacco, tobacco product, or tobacco related device shall be made on a form provided by the City. The application shall contain the full name of the applicant, the applicant’s 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 City Council for action at its next regularly scheduled Council Meeting. If the City Clerk shall determine that an application is incomplete, he or she shall return the application to the applicant with notice of the information necessary to make the application complete.

b. Action. The City Council may either approve or deny the license, or it may deny action for such reasonable period of time as necessary to complete any investigation of the application or the applicant it deems necessary. If the City Council approves the license, the City Clerk shall issue the license to the applicant. If the City Council denies the license, notice of the denial shall be given to the applicant along with notice of the applicant’s right to appeal the decision.

c. Term. All licenses under this section shall be P valid from the date of issue and shall expire on December 31 in the year of issue.

d. Revocation or Suspension. Any licenses issued under this section may be revoked or suspended as provided in the Violations and Penalties section of this section.

e. Transfers. All licenses issued under this section shall be valid only on the premises for which the license was issued an 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 Council.

f. 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 section.

g. Display. All licenses shall be posted and displayed in plain view of the general public on the licensed premise.

h. Renewals. The renewal of a license issued under this section shall be handled in the same manner as the original application. The request for a renewal shall be made at least thirty days, but no more than, sixty days before the expiration of the current license.

SUBDIVISION 4. Fees. No license shall be issued under this section until the appropriate license fee is paid in full. The fee for a license under this section shall be $60.00.

SUBDIVISION 5. Basis for Denial of License. The following shall be grounds for denying the issuance or renewal of a license under this section; however, except as may otherwise be provided by law, the existence of any particular ground for denial does not mean that the City must deny the license. If a license is mistakenly issued or renewed to a person, it shall be revoked upon the discovery that the person was ineligible for the license under this Section:

i. The applicant is under the age of 18 years; or

ii. The applicant has been convicted within the past five years of any violation of a Federal, State, or Local law, ordinance provision, or other regulation relating to tobacco, tobacco product, or tobacco related device; or

iii. The applicant has had a license to sell tobacco, tobacco product, or tobacco related device revoked within the preceding twelve months of the date of application; or

iv. The applicant fails to provide any information required on the applications, or provides false or misleading information; or

v. The applicant is prohibited by Federal, State, or other Local law, ordinance, or other regulation, from holding such a license.

SUBDIVISION 6. Prohibited Sales. It shall be a violation of this section for any person to sell or offer to sell any tobacco, tobacco product, or tobacco related device:

i. to any person under the age of eighteen (18); or

ii. By means of any type of vending machine, except as may otherwise be provided in this section; or

iii. By means of selfserve methods whereby the customer does not need to make a verbal or written request to an employee of the licensed premise in order to receive the tobacco, tobacco product, or tobacco related device and whereby there is not a physical exchange of the tobacco, tobacco product, or tobacco related device between the licensee or the licensee’s employee, and the customer, except as provided in Subdivision 8. Subdivision 6 (iii) will not apply to Tobacco Shops; or

iv. By means of loosies as defined in Subdivision 2 of this section; or

v. Containing opium, morphine, jimson weed, bella donna, strychnos, cocaine, marijuana, or other deleterious, hallucinogenic, toxic, or controlled substance except nicotine and other substances found naturally in tobacco or added as part of an otherwise lawful manufacturing process; or

vi. By any other means, to any other person, or in any other manner or form Notices prohibited by Federal, State, or other Local law, ordinance provision, or to other regulation.

SUBDIVISION 7. Vending Machines. It shall be unlawful for any person licensed under this section to allow the sale of tobacco, tobacco product, or tobacco related device by the means of a vending machine unless minors are at all times prohibited from entering the licensed establishment.

SUBDIVISION 8. Self-Service Sales. It shall be unlawful for a licensee under this section to allow the sale of tobacco, tobacco product, or tobacco related device by any means where by the customer may have access to such items without having to request the items from the licensee or the licensee’s employee and whereby there is not a physical exchange of the tobacco, tobacco product, or tobacco related device between the licensee or his or her clerk and the customer, except unopened cartons of cigarettes, containing ten packs or more. All tobacco, tobacco product, or tobacco related device, except unopened cartons of cigarettes, containing 10 packs or more, shall either be stored behind a counter or other area not freely accessible to customers, or in a case or other storage unit not left open and accessible to the general public. This section will not apply to Tobacco Shops. Any retailer selling tobacco, tobacco product, or tobacco related device at the time this section is adopted shall comply with this Section within 30 days of the effective date of this section.

SUBDIVISION 9. Responsibility. All licensees under this section shall be responsible for the actions of their employees in regard to the sale of tobacco, tobacco product, or tobacco related device on the licensed premises, and the sale of such an item by an employee shall be considered a sale by the license holder. Nothing in this section shall be construed as prohibiting the City of staples from also subjecting the clerk to whatever penalties are appropriate under this Section, State or Federal law, or other applicable law or regulation.

SUBDIVISION 10. Compliance Checks and Inspections. All licensed premises shall be open to inspection by the Staples Police Department or other authorized City officials during regular business hours. From time to time, but at least once per year, the City shall conduct compliance checks by engaging, with the 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 product, or tobacco related device. Minors used for the purpose of compliance checks shall be supervised by designated law enforcement officers or other designated city personnel. Minors used for compliance checks shall not be guilty of the unlawful purchase or attempted purchase, nor the unlawful possession of tobacco, tobacco product, or tobacco related device when such items re obtained or attempted to be obtained as a part of the compliance check. 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.

SUBDIVISION 11. Other Illegal Acts. Unless otherwise provided, the following acts shall be a violation of this section.

a. Illegal Sales. It shall be a violation of this section for any person to sell or otherwise provide any tobacco, tobacco product, or tobacco related device to any minor.

b. Illegal Possession. It shall be a violation of this section for any minor to have in his or her possession any tobacco, tobacco product, or tobacco related device. This subdivision shall not apply to minors lawfully involved in a compliance check.

c. Illegal Use. It shall be a violation of this section for any minor to smoke, Notices chew, sniff, or otherwise

use any tobacco, tobacco product, or tobacco related device.

d. Illegal Procurement. It shall be a violation of this section 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 section for any person to purchase or otherwise obtain such items on behalf of a minor. It shall further be a violation for any persons 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.

e. Use of False Identifi- cation. It shall be a violation of this section 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.

f. Minor Employee. It shall be a violation of this section for any person under the age of 18 to sell tobacco, tobacco product, or tobacco related device without “direct supervision” by a licensees’ employee who is 18 years or older.

SUBDIVISION 12. Violations.

a. 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 accusation. The alleged violator has ten (10) days from the date of issuance of the citation to request a hearing.

b. Hearings. If a person accused of violating this section so requests, a hearing shall be scheduled stating the time and place and be provided to the accused violator.

c. Hearing Officer. An independent hearing officer shall serve as the hearing officer.

d. Decision. If the hearing officer determines that a violation of this section did occur, that decision, along with the hearing officer’s reasons for finding a violation and the penalty to be imposed under Subdivision 13 of this section, 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.

e. Appeals. Appeals of any decision made by the hearing officer shall be filed in the district court for the jurisdiction of the City of Staples in which the alleged violation occurred.

f. Misdemeanor Prosecution. Nothing in this Section shall prohibit the City from seeking prosecution as a misdemeanor for any allege violation of this section.

g. Continued Violation. Each violation, and every day in which a violation occurs or continues, shall constitute a separate offense.

SUBDIVISION 13. Penalties.

a. Licensees. Any licensee found to have violated this section, or whose employee shall have violated this section, shall be charged an administrative fine of $75 for a first violation of this section; $200 for a second offense at the same licensed premises within a twenty-four month period; and $250 for a third or subsequent offensive at the same location within a twenty-four month period. In addition, after the third offense, the license shall be suspended for not less than seven days.

b. Other Individuals. Other individuals, other than minors regulated by Item c. of this Section, found to be in violation of this section shall be charged an administrative fee of $100.

c. Minors. Minors found in unlawful possession of, or who unlawfully purchase or attempt to purchase, tobacco, tobacco product, or tobacco related device, shall be handled by the criminal justice system.

d. Misdemeanor. Nothing in this Section shall prohibit the City from seeking prosecution as a misdemeanor for any violation of this section.

SUBDIVISION 14. Exception and Defenses. Nothing in this Section shall prevent the providing of tobacco, tobacco product, or tobacco related device 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 Section for a person to have reasonably relied on proof of age as described by State law.

SUBDIVISION 15. Severability and Savings Clause. If any Section or portion of this section 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 Section.

SUBDIVISION 16. Effective Date. This ordinance shall take effect upon publication.

Adopted this 8th day of June, 2010.

ATTEST: Phil Lindaman, City Clerk

APPROVED: Chris Etzler, Mayor

First Reading: May 25, 2010 Second Reading: June 8, 2010 Adoption: June 8, 2010 Published: June 17, 2010

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