HomeMy WebLinkAboutOrdinance - 30-2018 - Amending City Code Section 5.35, Related to Tobacco - 12/13/2018 CITY OF EDEN PRAIRIE
HENNEPIN COUNTY, MINNESOTA
ORDINANCE NO. 30-2018
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 hereby deleted in its entirety and replaced
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 starting 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:
A. "Child-resistant packaging" is defined as set forth in Code of Federal Regulations, title 16,
section 1700.15(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.
B. "Electronic delivery device" means any product containing or delivering nicotine, lobelia,
or any other substance intended for human consumption that can be used by a person to
simulate smoking in the delivery of nicotine or any other substance through inhalation of
vapor from the product. Electronic delivery device includes any component part of a
product, whether or not marketed or sold separately.
C. "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 a motorized or nonmotorized
vehicle.
D. "Nicotine or lobelia delivery product"means any product containing or delivering nicotine
or lobelia intended for human consumption, or any part of such a product, that is not
tobacco or an electronic delivery device as defined by this Section.
E. "Self-service merchandising" means open displays of tobacco-related products in any
manner where any person shall have access to the tobacco products without the assistance
or intervention of the licensee or licensee's employee. The assistance or intervention shall
entail the actual physical exchange of the tobacco products between the customer and the
licensee or employee.
F. "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" does not include any tobacco product, electronic delivery device, or
nicotine or lobelia delivery product that has been approved or certified 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 marketed and sold for such an
approved purpose.
G. "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.
H. "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 vapors of tobacco or tobacco products. Tobacco-related
devices include components of tobacco-related devices which may be marketed or sold
separately.
I. "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 persons shall 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
therefor from the City.
Subd. 4. Exceptions. Reserved.
Subd. 5. Ineligibility.
A. No license shall be issued for the sale of tobacco-related products at a movable place of
business.
Subd. 6. License Applications.
A. Application. All applications for licenses issued under this Section shall be made on forms
supplied by the City. All questions asked or information required by the application forms
shall 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 upon 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 shall pay a fee to the City which shall 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 the license fee is paid. All
license, application, and investigation fees provided for in this Section shall be fixed and
determined by the Council. Such fees,may, from time to time, be amended by the Council.
D. Manager or A eg_nt. If the applicant is a firm, association, partnership, corporation, limited
liability company, or joint venture, the application shall include the name of the natural
person who will serve as the manager or agent of the licensed premises. Such manager or
agent shall, by the terms of his or her 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 shall 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. Investi ag_tion. 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 City Code Section
2.33 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 shall 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 shall 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
shall be communicated to the applicant in writing. The notice of denial shall 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 shall
be made at least sixty (60) days prior to the date of expiration of the license and shall
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 shall 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 shall be communicated to the applicant in writing,
including findings and conclusions supporting the decision. The notice of denial
shall 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
to the Chief of Police within ten (10) days of the date of the City's notice of non-
renewal. If a 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 shall be deemed
waived. If requested, the hearing shall 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 promptly notify the City 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 shall 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. No person shall sell or
dispense any tobacco-related product through the use of vending machines or self-service
merchandising. This subsection E shall not apply to retail stores which derive at least 90
percent of their revenue from tobacco and tobacco-related devices and where the retailer
ensures that no person younger than twenty-one (21) years of age is present, or permitted
to enter, at any time.
F. No person under eighteen (18) years of age shall sell tobacco-related products.
G. Smoking for the purposes of sampling tobacco-related products is prohibited. It shall be
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.
H. 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.
I. Notice of the legal sales age shall be posted at each location where tobacco-related products
are offered for sale. The required signage shall be posted in a manner so that it is clearly
visible to anyone who is considering or making a purchase.
Subd. 8. Administrative Penalties, Suspension, and Revocation
A. Administrative Penalties
1. If a licensee or employee of a licensee sells 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 $75. An
administrative penalty of$200 will be imposed for a second violation at the same
location within twenty-four (24) months after the initial violation. For a third
violation at the same location within twenty-four (24) months after the initial
violation, an administrative penalty of $250 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. For a fourth violation at the same location within twenty-
four (24) months after the initial violation, the licensee's authority to sell tobacco-
related products at that location may be revoked.
2. An individual who sells tobacco-related products to a person under the age of
twenty-one (21) years will be charged an administrative penalty of$50.
3. No suspension or penalty may be imposed until the licensee or individual sought to
be charged pursuant to subsection A.1 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.
C. Procedure.
1. Notice. A suspension or revocation shall be preceded by written notice from the
Chief of Police or his or her designee to the licensee and an opportunity for a
hearing. The notice shall state the nature of the violation(s) or grounds for
suspension or revocation and shall inform the licensee of the licensee's right to
request a hearing within ten(10) days of the date contained in the notice to dispute
the suspension or revocation. The notice shall be mailed by regular mail to the
licensee at the most recent address listed on the license application. If a 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 shall be deemed waived. No suspension or
revocation of a license under this Section shall 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 his or her designee shall
provide written notice to the licensee of the date,time and place of the hearing. The
notice shall be served in the same manner as the initial notice. The notice shall be
served no less than fifteen (15) days and no more than thirty (30) days prior to the
hearing. The hearing shall be held by an impartial hearing officer who shall be
appointed by the Chief of Police or his or her designee. Upon conclusion of the
hearing, the hearing officer shall, within ten (10) days, make his or her
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,he or she shall 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 shall make a decision on whether the license
shall be denied renewal, suspended or revoked. The City Manager shall 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.Any
person aggrieved by final decision of the City may seek review in district court.
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 tobacco-related products to a
person under the age of twenty-one (2 1) years in violation of this Section that the
licensee or individual making the sale relied in good faith upon proof of age by (1)
a valid driver license or identification card issued by Minnesota, another state, or a
province of Canada, and including the photograph and date of birth of the licensed
person; (2) a valid military identification card issued by the United States
Department of Defense; or(3) in the case of a foreign national, from a nation other
than Canada, by a valid passport.
B. False Identification. A person under twenty-one (2 1) years of age who, in connection with
the purchase or attempted purchase of tobacco-related products, attempts 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, is guilty of a misdemeanor.
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 February 1, 2019.
FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the 13th day
of November, 2018, and finally read and adopted and ordered published at a regular meeting of
the City Council of said City on the 4th day of December, 2018.
Akaf� POW —- A
Kath en Porta, City Clerk N -L ens, a r
Published in the Eden Prairie News on the 13`h day of December, 2018.
CITY OF EDEN PRAIRIE
HENNEPIN COUNTY, MINNESOTA
SUMMARY OF ORDINANCE NO. 30-2018
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
increasing the minimum age at which a person may purchase tobacco products from 18 to 21;
adding new definitions consistent with state law; removing penalties for underage use, purchase,
or possession of tobacco products; and revising and reorganizing the subdivisions for procedural
consistency with other Chapter 5 licensing sections.
Effective Date: This Ordinance shall become effective on February 1, 2019.
ATTEST:
Kat een Porta, City Clerk N ncy a- ens, a r
PUBLISHED in the Eden Prairie News on December 13, 2018.
(A full copy of the text of this Ordinance is available from City Clerk.)
Affidavit of Publication
Southwest Newspapers
State of Minnesota )
)SS.
County of Hennepin )
Laurie A. Hartmann, being duly sworn, on oath says that she is the authorized agent of the
CITY OF EDEN PRAIRIE publisher of the newspapers known as the Eden Prairie News and Lakeshore Weekly News and
HENNEPIN COUNTY, has full knowledge of the facts herein stated as follows:
MINNESOTA
SUMMARY OF ORDINANCE NO.30-2018 (A) This newspaper has complied with the requirements constituting qualification as a
AN ORDINANCE OF THE legal newspaper, as provided by Minnesota Statute 331A.02, 331A.07, and other applicable
CITY OF EDEN PRAIRIE, laws,as amended.
MINNESOTA AMENDING CITY
CODECRELATING
T TOBACCO;
SECTION A 35 B The printed public notice that is attached to this Affidavit and identified as
RELATING TO TOBACCO;AND ( ) P
ADOPTING BY REFERENCE No._3 y y was published on the date or dates and in the newspaper stated in the attached
CITY CODE CHAPTER 1 AND SECTION 5.99 WHICH AMONG Notice and said Notice is hereby incorporated as part of this Affidavit.Said notice was cut from
OTHER THINGS CONTAIN the columns of the newspaper specified.Printed below is a copy of the lower case alphabet from
PENALTY PROVISIONS A to Z,both inclusive,and is hereby acknowledged as being the kind and size of type used in
THE CITY COUNCIL OF
THE CITY OF EDEN PRAIRIE, the composition and publication of the Notice:
MINNESOTA,ORDAINS:
Summary: This ordinance abcdefghijklmnopgrstuvwxyz
amends City Code Section 5.35
relafing to tobacco by increasing
the minimum age at which a
person may purchase tobacco
products from 18 to 21;adding Laurie A.Hartmann
new definitions consistent with
state law; removing penalties
for underage use,purchase, or
possession of tobacco products; Subscribed and sworn before me on
and revising and reorganizing
the subdivisions for procedural
consistency with other Chapter 5
licensing sections. this day of 2018
Effective Date: This
Ordinance shall become effective
on February 1,2019. rmoemoaoorscne000cmmmon�oo-------
Nancy
Tyra-Lukens,Mayor
ATTEST: Kathleen Porta,City JYMME JEANNETTE BARK
Clerk - r NOTARY PUBl1C-MINNESOTA
(A full copy of the text of
this Ordinance is available from t ublic MY COMMISSION EXPIRES 01/31/23
City Clerk.)
(Published in the Eden Prairie
News on Thursday,December 13,
2018L No 3464)
RATE INFORMATION
Lowest classified rate paid by commercial users for comparable space...$31.20 per column inch
Maximum rate allowed by law for the above matter................................... $31.20 per column
inch Rate actually charged for the above matter............................................... $12.97 per
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