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HomeMy WebLinkAboutOrdinance - 23-2022 - Amending City Code Chapter 5, Section 5/35 Related to Tobacco - 11/10/2022CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA ORDINANCE NO. 23-2022 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA AMENDING CITY CODE CHAPTER 5, SECTION 5.35 RELATING TO TOBACCO; AND ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 5.99 WHICH AMONG OTHER THINGS CONTAIN PENALTY PROVISIONS. THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE, MINNESOTA ORDAINS: Section 1. That City Code Chapter 5, Section 5.35, is amended by deleting the section in its entirety and replacing it with the following SECTION 5.35. -TOBACCO Subd. 1. Purpose and Findings. The Council of the City of Eden Prairie finds that substantial scientific evidence exists that the use of tobacco-related products causes cancer, heart disease, and various other medical disorders, and that initiation of the use of tobacco-related products occurs primarily in adolescence. The City desires to prevent young people from staiiing to smoke, to encourage and assist smokers to quit, and to promote clean indoor air. The City Council further concludes that the prohibition of the sale of tobacco-related products by persons under twenty-one (21) years of age will promote the health, safety, and welfare of the residents of the City. Subd. 2. Definitions. When used in this section, the following terms have the following meanings: Child-resistant packaging is defined as set forth in Code of Federal Regulations, title 16, section 1700.l 5(b )(1 ), as in effect on January 1, 2015, when tested in accordance with the method described in Code of Federal Regulations, title 16, section 1700.20, as in effect on January 1, 2015. Electronic delivery device means any product containing or delivering nicotine, lobelia, or any other substance, whether natural or synthetic, intended for human consumption through inhalation of aerosol or vapor from the product. Electronic delivery device includes but is not limited to devices manufactured, marketed, or sold as electronic cigarettes, electronic cigars, electronic pipe, vape pens, modes, tank systems, or under any other product name or descriptor. Electronic delivery device includes any component part of a product, whether or not marketed or sold separately. Movable place of business means a business whose physical location is not permanent or is capable of being moved or changed, including, but not limited to, any business that is operated from a kiosk, other transportable structure or shelter, or a motorized or nonmotorized vehicle. Nicotine or lobelia delivery product means any product containing or delivering nicotine or lobelia intended for human consumption, or any paii of such a product, that is not tobacco or an electronic delivery device as defined in this subdivision. Self-service merchandising means open displays of tobacco-related products in any manner where any person has access to the tobacco products without the assistance or intervention of the licensee or licensee's employee. Tobacco-related products means tobacco, tobacco-related devices, electronic delivery devices, and nicotine or lobelia delivery products as defined in this subdivision. Tobacco-related products do not include any drugs, devices, or combination products, as those terms are defined in the Federal Food, Drug, and Cosmetic Act, that are authorized for sale by the United States Food and Drug Administration. Tobacco means cigarettes and 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 cigars; cheroots; stogies; perique; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flour; cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco; and other kinds and forms of tobacco. Tobacco-related devices means cigarette papers or pipes for smoking or other devices intentionally designed or intended to be used in a manner which enables the chewing, sniffing, smoking, or inhalation of aerosol or vapor of tobacco or tobacco products. Tobacco-related devices include components of tobacco-related devices which may be marketed or sold separately. Tobacco products shop means a retail establishment that has an entrance door opening directly to the outside, that cannot be entered at any time by persons younger than 21 years of age, and that derives more than 90 percent of its gross revenue from the sale of tobacco, tobacco-related devices, electronic delivery devices, edible THC products as defined in Section 5.79, and products containing nonintoxicating cannabinoids extracted from hemp and in which the sale of other products is merely incidental. Tobacco products shop does not include a tobacco department or section of any individual business establishment with any type ofliquor, food, or restaurant license. Vending machine means any mechanical, electric, or electronic, self-service device which, upon inserting money, tokens, or any other form of payment, dispenses tobacco products and including vending machines equipped with manual, electric or electronic locking devices. Subd. 3. License Required. No person may keep for retail sale, sell at retail, or otherwise dispose of any tobacco-related product at any place in the City without first obtaining a license from the City. Subd. 4. Exceptions. Reserved. Subd. 5. Ineligibility. No license will be issued under this section to: A. A movable place of business; B. A person under twenty-one (21) years of age; C. A person who has knowingly misrepresented or falsified information on the license application; D. A person who has been convicted within the past five ( 5) years of any violation of a federal, state, or local law, ordinance provision, or other regulation governing the sale, distribution, or possession for sale or distribution of tobacco-related products; E. A person who has had an interest in, or has persons investing in, the business, building, premises, fixtures, furniture, or equipment of the proposed licensee that had an interest in, as an individual or as part of a firm, association, pminership, corporation, limited liability company, or joint venture, a tobacco-related products license that was revoked or suspended within the last five (5) years of the date the license application is submitted to the City; F. A person who is prohibited by federal, state, or other local law, ordinance, or other regulation from holding a license; or G. A person who does not have, or at the time of the issuance of a license does not plan to have, at least one permanent physical premises in the City on which the licensed business will be located. Subd. 6. License Applications. A. Application. All applications for licenses issued under this Section must be made on forms supplied by the City. All questions asked or information required by the application forms must be answered fully and completely by the applicant. B. False Statements. It is unlawful for any applicant to intentionally make a false statement or omission on any application. Any false statement in such application or any willful omission to state any information called for on such application will, upon discovery of such falsehood, be grounds for denial or, if already issued, for revocation of the license. C. License, Application, and Investigation Fees. Upon submission of the application, applicants for a license must pay a fee to the City which will be considered an application and investigation fee, not refundable to applicant, to cover the costs of the City in processing the application and the investigation thereof. Upon approval of an application, whether initial or renewal, the license will not be effective until a separate license fee is paid. All license, application, and investigation fees provided for in this Section will be fixed and determined by the Council. Such fees may, from time to time, be amended by the Council. D. Manager or Agent. If the applicant is a firm, association, partnership, corporation, limited liability company, or joint venture, the application must include the name of the natural person who will serve as the manager or agent of the licensed premises. Such manager or agent must, by the terms of their written consent, ( 1) take full responsibility for the conduct of the licensed premises, and (2) serve as agent for service of notices and other process relating to the license. A licensee must notify the City in writing within 15 days of any change in such manager or agent indicating the name and address of the new manager or agent and the effective date of such change. E. Investigation. The City is empowered to conduct any and all investigations to verify the information on applications and renewal applications submitted under this Section, including but not limited to ordering a criminal history check pursuant to Minn. Stat. § 299C.72 and conducting an inspection of any premises proposed to be licensed. Failure of an applicant to allow an inspection is grounds for denial of the license. F. Consideration and Issuance. After the information on the application has been verified as correct by the City pursuant to subsection E above, an initial application for a license under this Section will be presented to the City Council for issuance or denial. 1. Issuance. Upon the City Council's approval of an application and the applicant's payment of the license fee, the Licensing Technician will issue and mail a license to the applicant at the address noted in the application. 2. Denial. The City Council may deny a license on the grounds set forth in Subdivision 5 of this Section and/or on the same grounds for which a license may be suspended or revoked as set forth in Subdivision 8 of this Section. A denial of an application will be communicated to the applicant in writing, including findings supporting the decision. The notice of denial will be mailed by regular mail to the applicant at the address listed on the application. G. Term of License. Licenses issued under this Section will expire on December 31 of each year. H. Renewal of License. Applications for renewal of all licenses issued under this Section must be made at least sixty ( 60) days prior to the date of expiration of the license and must contain such information as is required by the City. After the information on the renewal application has been verified as correct by the City pursuant to subsection E above, a renewal application for a license under this Section will be presented to the Chief of Police for issuance or denial. 1. Issuance. Upon approval of a renewal application and the applicant's payment of the renewal fee, the Licensing Technician will issue and deliver a license certificate to the applicant at the address noted in the renewal application 2. Denial. The Chief of Police may deny renewal of a license on the grounds set forth in Subdivision 5 of this Section and/or on the same grounds for which a license may be suspended or revoked as set forth in Subdivision 8 of this Section. A denial of a renewal application will be communicated to the applicant in writing, including findings and conclusions supporting the decision. The notice of denial will be mailed by regular mail to the licensee at address listed on the renewal application. A licensee may appeal a non-renewal by submitting a hearing request in writing to the Chief of Police within ten (10) days of the date of the City's notice of non- renewal. If a written hearing request is not received by the City within ten (10) days of the date contained in the notice, the licensee's right to a hearing will be deemed waived. Ifrequested, the hearing will be held in accordance with the procedures set forth in Subdivision 8.C.2 and 8.C.3 of this Section. I. Change of Information. A licensee must notify the City within thirty (30) days of a change in the information or facts required to be furnished on the application for a license, even after the license has been issued. Failure to comply with this subsection is cause for suspension or revocation of the license. Subd. 7. Conditions, Restrictions, and Regulations A. A license is subject to the conditions, restrictions, and regulations in this Section, all other provisions of City Code, and all provisions of other applicable federal, state, and local laws, regulations, and ordinances. B. A licensee is responsible for the conduct of his or her place of business and the conditions of order in it. The act of an employee of the licensed premises is deemed the act of the licensee as well, and the licensee is liable for all penalties provided by this ordinance equally with the employee. C. The license must be posted in a conspicuous place in the premises for which it is used and must be exhibited to any person upon request. D. No person may sell, offer for sale, give away, furnish, or deliver any tobacco-related product to any person under twenty-one (21) years of age. E. A licensee may sell tobacco-related products only in a direct face-to-face exchange between the licensee or the licensee's employee and the consumer. F. No person may sell or dispense any tobacco-related product through the use of vending machines or by means of delivery. G. Except in a licensed tobacco-products shop, no person may sell or dispense any tobacco- related product through self-service merchandising. The assistance or intervention of the licensee or licensee's employee must entail the actual physical exchange of the tobacco products between the licensee or employee and the customer. H. No person under twenty-one (21) years of age may sell tobacco-related products at a tobacco products shop. No person under eighteen (18) years of age may sell tobacco-related products at any other establishment licensed under this Section. I. Smoking for the purposes of sampling tobacco-related products is prohibited. It is unlawful for any person to light, inhale, or exhale tobacco-related products within the indoor area of any establishment licensed under this Section, or for any person to allow the same. J. No person may distribute samples of any tobacco-related product free of charge or at a nominal cost. The distribution of tobacco-related products as a free donation is prohibited. K. The sale of any liquid, whether nor not such liquid contains nicotine, that is intended for human consumption and use in an electronic delivery device that is not contained in child- resistant packaging is prohibited. L. Notice of the legal sales age must be posted at each location where tobacco-related products are offered for sale. The required signage must be posted in a manner so that it is clearly visible to anyone who is considering or making a purchase. M. The premises licensed under this section must be open to inspection by any duly authorized representative of the City during regular business hours to determine whether or not this section and all other laws are being observed. N. A licensee operating a tobacco products shop must, upon the request of the City, provide the City with sales receipts or other acceptable documentation establishing that the tobacco products shop derives more than 90 percent of its gross revenue from the sale of tobacco, tobacco-related devices, electronic delivery devices, edible THC products, and products containing nonintoxicating cannabinoids extracted from hemp. Subd. 8. Administrative Penalties, Suspension, and Revocation A. Administrative Penalties. 1. If a licensee or employee of a licensee sells, gives, or otherwise furnishes tobacco- related products to a person under the age of 21 years, or violates any other provision of Minnesota Statutes, Chapter 461, the licensee will be charged an administrative penalty of $300 for the first violation. An administrative penalty of $600 will be imposed for a second violation at the same location within thirty-six (36) months after the initial violation. For a third or any subsequent violation at the same location within thirty-six (36) months after the initial violation, an administrative penalty of $1000 will be imposed, and the licensee's authority to sell tobacco-related products at that location will be suspended for not less than seven (7) days and may be revoked. 2. An individual who sells, gives, or otherwise furnishes tobacco-related products to a person under the age of twenty-one (21) years may be charged an administrative penalty of $50. 3. No suspension, revocation, or other penalty may be imposed until the licensee or individual sought to be charged pursuant to subsection A. l or A.2 of this subdivision has received written notice, served personally or by mail, of the alleged violation and an opportunity for a hearing in accordance with the procedures in subsection C of this subdivision. B. Grounds for Suspension or Revocation. In addition to the penalties described in subsection A of this subdivision, the City may suspend or revoke a license issued under this Section. The following are grounds for suspension or revocation of a license: 1. Fraud, misrepresentation, or false statement contained in a license application or a renewal application; 2. Failure to comply with any applicable statute, regulation, or ordinance, including this Section, relating to the sale or use of tobacco-related products. 3. Failure to pay the amount of any penalty imposed pursuant to Subdivision 8.A of this Section within ten (10) days after notice in writing from the City of the decision to impose a penalty. 4. If the licensee is also the holder of an edible THC products license issued by the City pursuant to Section 5.79, any grounds for suspension or revocation of the edible THC products license under Section 5.79, Subd. 8.A. C. Procedure. 1. Notice. A suspension or revocation will be preceded by written notice from the Chief of Police or their designee to the licensee and an opportunity for a hearing. The notice must state the nature of the violation(s) or grounds for suspension or revocation and must inform the licensee of the licensee's right to request in writing a hearing within ten (10) days of the date contained in the notice to dispute the suspension or revocation. The notice will be mailed by regular mail to the licensee at the most recent address listed on the license application. If a written hearing request is not received by the City within ten (10) days of the date contained in the notice, the licensee's right to a hearing will be deemed waived. No suspension or revocation of a license under this Section will take effect until (a) the licensee's time to request a hearing expires; or (b) if a hearing is requested, after the licensee is informed of the decision of the City Manager. 2. Hearing. If a hearing is requested, the Chief of Police or their designee will provide written notice to the licensee of the date, time, and place of the hearing. The notice must be served in the same manner as the initial notice. The notice must be served no less than fifteen (15) days and no more than thirty (30) days prior to the hearing. The hearing will be held by an impartial hearing officer appointed by the Chief of Police or their designee. Upon conclusion of the hearing, the hearing officer must, within ten (10) days, make their recommendation to the City Manager in writing. If the hearing officer's recommendation is denial of the renewal application or suspension or revocation of the license, they must include in the written recommendation his or her findings and conclusions supporting the decision. 3. Decision. Within thirty (30) days of receipt of the hearing officer's written recommendation, the City Manager will make a decision on whether the license will be denied renewal, suspended, or revoked. The City Manager must inform the licensee in writing of the decision, including findings and conclusions supporting the decision, within ten (10) days. 4. Appeal. No appeal is allowed to the City Council under Section 2.80 of the City Code from a decision of the City Manager under this Section. The City Council may, on its own motion, determine to review the decision of the City Manager. Subd. 9. Violations. A. Violation a Misdemeanor. 1. A person who commits or attempts to commit, conspires to commit, or aids or abets in the commission of an act constituting a violation of this Section, whether individually or in connection with one or more other persons or as principal, agent, or accessory is guilty of a misdemeanor. A person who falsely, fraudulently, forcibly or willfully induces, causes, coerces, permits, or directs another to violate a provision of this Section is guilty of a misdemeanor. 2. It is an affirmative defense to the charge of selling, giving, or otherwise furnishing tobacco-related products to a person under the age of twenty-one (21) years in violation of this Section that the licensee or individual making the sale relied in good faith upon proof of age as described in Minnesota Statutes Section 340A.503, subdivision 6. B. False Identification. A person under twenty-one (21) years of age who purchases or attempts to purchase tobacco-related products and who uses a driver's license, permit, Minnesota identification card, or any type of false identification to misrepresent the person's age is subject to alternative civil penalties as specified by Police Department procedure. Section 2. City Code Chapter 1 entitled "General Provisions and Definitions Applicable to the Entire City Code Including Penalty for Violation" and Section 5.99 entitled "Violation a Misdemeanor" are hereby adopted in their entirety, by reference, as though repeated verbatim herein. Section 3. This ordinance shall become effective from and after its passage and publication. FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the 18th day of October, 2022, and finally read, adopted, and ordered published at a regular meeting of the City Council of said City on the 1st day of November, 2022. Ronald A. Case, Mayor Published in the Sun Sailor on the 10th day of November, 2022. CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA SUMMARY OF ORDINANCE NO. 23-2022 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA AMENDING CITY CODE CHAPTER 5, SECTION 5.35 RELATING TO TOBACCO; AND ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 5.99 WHICH AMONG OTHER THINGS CONTAIN PENALTY PROVISIONS. THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE, MINNESOTA, ORDAINS: Summary: This ordinance amends City Code Section 5.35 relating to tobacco by revising definitions and requirements in accordance with recent amendments to state law, providing for City compliance checks, and making other housekeeping-type revisions consistent with other City licensing provisions. Effective Date: This Ordinance shall take effect upon publication. ATTEST: Ronald A. Case, Mayor PUBLISHED in the Sun Sailor on November 10, 2022. (A full copy of the text of this Ordinance is available from City Clerk.) AFFIDAVIT OF PUBLICATION STATE OF MINNESOTA ) ss COUNTY OF HENNEPIN Debbie Schwalba being duly sworn on an oath, states or affirms that he/she is the Publisher's Designated Agent of the newspa- per(s) known as: SS Mtka_Excelsior_Eden Prairie with the known office of issue being located in the county of: HENNEPIN with additiona l circulation in the c6unties of: HENNEPIN and has full knowledge of the facts stated below : · (A) The newspaper has complied with all of the requirements constituting .qualifica- tion as a qualified newspaper as provided by Minn. Stat. §33 lA.02. (B) This Public Notice was printed and pub- lished in said newspaper(s) once each week , for 1 successive week(s); the first insertion being on 11/10/2022 and the last insertion being on 11110/2022 . MORTGAGE FORECLOSURE NOTICES Pursuant to Minnesota Stat. §580.033 relating to the publication of mortgage foreclosure notices: The newspaper complies with the conditions described in §580.033, subd. 1, clause (1) or (2). If the newspaper's known office of issue is located in a county adjoining the county where the mortgaged premises or some part of the mortgaged premises described in the notice are located, a substantial portion of the newspaper's circulation is in the latter county. By:~k~~ Desigilated Agent Subscribed and sworn to or affirmed before me on 11/10/2022 by Debbie Schwalba . 9~hh~~ Notary Public Rate Information: DARLENE MARIE MAGPHERSON NOTARY PUBLI C -MINN ES OTA My Com mission Expires Jan 31, 2024 (1) Low est classified rate paid b y commercial users for comparable space: $61.35 per column inch Ad ID 1270925 CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA SUMMARY OF ORDINANCE NO. 23-2022 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA AMENDING CITY CODE CHAPTER 5, SECTION 5.35 RELATING TO TOBACCO; AND ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 5.99 WHICH AMONG OTHER THINGS CONTAIN PENALTY PROVISIONS. THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE, MINNE- SOTA, ORDAINS: Summarv: This ordinance amends City Code Section 5.35 relating to tobacco by revising definitions and requirements in ac- cordance with recent amendments to state law, providing for City compliance checks , and making other housekeeping-type revisions consistent with other City licens ing provisions. Effective Date· This Ordinance shall take effect upon publication. A full copy of the text of this Or- dinance is available from City Clerk. Ronald A . Case , Mayor ATTEST: Nicole Tingley, City Clerk Published in the Sun Sailor November 10 , 2022 1270925