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09-27-10 CC WS AgPCITY OF SHOREWOOD CITY COUNCIL WORK SESSION MONDAY, SEPTEMBER 27, 2010 AGENDA 5755 COUNTRY CLUB ROAD CITY HALL 6:00 P.M. Attachments 1. CONVENE CITY COUNCIL WORK SESSION A. Roll Call B. Review Agenda 2. MEASURABLE MANAGEMENT 3. TOBACCO ORDINANCE 4. ADJOURN Mayor Lizee _ Bailey_ Turgeon Woodruff_ Zerby Administrator's memo Administrator's memo COUNCIL CTI FOR Department Council Meeting Item Number Administration September 27, 2010 Work Session From: Brian Heck, City Administrator j64' Item — Measureable Management Description /Background /Previous Action Over the past year and a half, I have been meeting on and off with a consultant that conducts facilitate ^n and training for a program called "Measureable Management." This program started in the corporate world and the founder of the program has been looking to move it into the public sector over the past few years. Several municipalities outside the state of Minnesota participated in the training and implemented the program with excellent results. The first Minnesota community to go through the program was Waconia and they also achieved relatively good success. The essential elements of the program are to bring all levels of employee together to evaluate what and how work is done, to identify possible process /program improvements, evaluate the pros and cons of altering the program /process, identify potential cost savings (both soft and hard), and then to actually ,, implement the changes and evaluate the effectiveness. Unlike other programs, this one forces the groin to implement, monitor, measure, and report back on effectiveness. The program brings together several concepts, such as going to the line staff for ideas and suggestions, creating and encourages cross - functional involvement, and requires actual implementation and program evaluation. Ms. Molly McDonald, one of the facilitators and trainers, will be present to share the concepts of the program and answer questions the Council has regarding the program. Council Action: Department Date Council Work Session Item Number Administration 9/21/10 9/27/10 #3 From: Brian Heck, City Administrator /Clerk Item Description: Tobacco Ordinance Amendments Recent changes in the State law relating to the sale of tobacco prompted a review of the city's tobacco ordinance. The State law changes were mainly focused around modernizing definitions of tobacco, tobacco products, and tobacco - related devices. Attorney Tietjen has reviewed the City's ordinance and the changes in the State law, and has provided the attached recommended changes to the City's ordinance for Council's review and discussion. A 30 -day notice of the meeting at which Council will consider adopting amendments to the City's Tobacco Ordinance must be provided to each licensee. Three establishments are currently licensed in the City: Holiday Stationstore, Cub Foods, and Metro Petro Gas and Food. Council Action: Jean Panchyshyn From: Tietjen, Mary D. [mtietjen @Kennedy- Graven.com] Sent: Thursday, September 16, 2010 12:54 PM To: Jean Panchyshyn Cc: Brian Heck Subject: tobacco ordinance Attachments: Chapter 302; Sale of Tobacco; SH230 -42 - 374931v2.DOC Jean, Attached is a document with my suggested revisions - for discussion purposes. As we talked about, the reason I am suggesting eliminating the phrase "tobacco products" from the definitions is that the City gets its authority to regulate tobacco from MS Chapter 461 and that chapter incorporates the tobacco definitions from MS 609.685. Section 609.685 doesn't use the term "tobacco products." Therefore, in the ordinance, I've inserted the as- amended definition of "tobacco" from section 609.685 and deleted the reference to "tobacco products" throughout the ordinance. One thing I didn't mention to you on the phone is that section 461.19 does give a city the ability to have more restrictive regulations in an ordinance, so theoretically we could use both "tobacco" and "tobacco products." However, from what I could tell, the terms "tobacco" and "tobacco products" are very similar and it seems unnecessary to use both. Section 609.685 also contains a definition for "tobacco- related devices" which is limited to "cigarette papers or pipes for smoking." Since the city can be more restrictive if it wants to be, I am suggesting using a definition that is a little broader than that - to include any devices for the purpose of smoking, sniffing, inhaling, etc. I also made some suggestions on the hearing process. I felt it was unnecessary to use an Administrative Law Judge for these types of violations. Under chapter 461, the city has the authority to appoint a hearing officer and as long as the city had a hearing officer process in place, it may as well (in my view) make use of it. I'm guessing tobacco license violations are fairly rare anyway. Most of the other suggestions are pretty minor. One thing I should point out to both you and Brian is that before the city council can adopt any amendments to the ordinance, the city is required to take "reasonable steps to send notice by mail at least 30 days prior to the meeting to the last known address of each licensee or person required to hold a license under section 461.12." I don't think this means 30 days notice of a work session, but it means 30 days notice of the meeting at which the council would consider adoption of the amendments. Finally, I mentioned that I would prepare a memo to the Council for the upcoming work session on the suggested revisions. If this email can be forwarded to them, I think it explains my rationale for the revisions. Brian, if you want a more formal memo, I'm happy to do that as well. Mary Mary D. Tietjen Kennedy & Graven, Chartered 200 South Sixth Street 470 U.S. Bank Plaza Minneapolis, MN 55402 612.337.9277 (direct) 612.337.9310 (fax) THE INFORMATION CONTAINED IN THIS MESSAGE IS CONFIDENTIAL AND MAY ALSO BE ATTORNEY - CLIENT PRIVILEGED. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED, IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY USE, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU CHAPTER 302 SALE OF TOBACCO Section 302.01 Purpose 302.02 Definitions and interpretations 302.03 License 302.04 Fees 302.05 Basis for denial of license 302.06 Prohibited sales 302.07 Vending machines 302.08 Self- service sales 302.09 Responsibility 302.10 Compliance checks and inspections 302.11 Other illegal acts 302.12 Violations and hearing process 302.13 Penalties 302.14 Exceptions and defenses 302.01 PURPOSE. Because the city recognizes that many persons under the age of 18 years purchase or otherwise obtain, possess and use tobacco, tebacee produets and tobacco - related devices, and the sales, possession and use are violations of both state and federal laws; and because studies, which are hereby accepted and adopted, have shown that most smokers begin smoking before they have reached the age of 18 years and that those persons who reach the age of 18 years without having started smoking are significantly less likely to begin smoking and because smoking has been shown to be the cause of several serious health problems which subsequently place a financial burden on all levels of government; this chapter shall be intended to regulate the possession and use of tobacco, tee 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, tabaeee preduets 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 M.S. ' section 144.391. 302 -1 374931v2 MDT SH230 -42 302.02 Shorewood - Business Regulations 302.02 tI 1 t I •• �, For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. COMPLIANCE CHECKS. The system the city uses to investigate and ensure that those authorized to sell tobacco, tebaece products and tobacco - related devices are following and complying with the requirements of this chapter. COMPLIANCE CHECKS shall involve the use of minors as authorized by this chapter. COMPLIANCE CHECKS shall also mean the use of minors who attempt to purchase tobacco, tebaeee— preduets 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, tebacse products and tobacco - related devices. INDIVIDUALLY PACKAGED. The practice of selling any tobacco er tebacee- pfo4uct wrapped individually for sale. Individually wrapped tobacco and tebaeee 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. LOOSIES. The common term used to refer to a single or individually packaged cigarette MINOR. Any natural person who has not yet reached the age of 18 years. MOVEABLE PLACE OF BUSINESS. 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 sales transactions. RETAIL ESTABLISHMENT. Any place of business where tobacco, tebaeea preduets 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. SALE. Any transfer of goods for money, trade, barter or other consideration. SELF - SERVICE MERCHANDISING. Open displays of tobacco, tebaeee- produe -ts_or tobacco - related devices in any manner where any person shall have access to the tobacco, tebaeee- pieduets 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, tebaeoe- predue4 or tobacco - related device between the customer and the licensee or employee. Self - service merchandising shall not include vending machines. 302 -2 374931v2 MDT SH230 -42 302.02 Sale of Tobacco 302.03 TOBACCO o rnn Annn vnnnrrM A n y ,. or i earila t ,,., eee l , ., ,. i bra not limited to eigarettes; cigars; pipe tebaeea; sraif� fine eta or ed_­�__ eliefeets; stegies; perique granulated, plag out, efirrip eat, readyrubbed mid othe. s. tobaeoe; snaff flawers; eavendish; shorts; plug and twist tobaccos; dipping tobaeeos; refuse elippings, eu�rings and sweepings of tebaeee; and other k4rals and forms of tobaeeo leaf prepared in , the mariner as to be suitable r ehe sn iffi ng or sm aking0garettes and any rp oduct containing, made, or derived from tobacco that is intended for human consumption whether chewed, smoked, sbsorbed, dissolved, inhaled, snorted, sniffed, or ingested by other means or any component, part, or accessory of a tobacco product, cigars; cheroots; sto ig es• 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 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 DEVICES. A pipe, rolling paper or other device intentionally designed or intended to be used in a manner which enables the chewing, s t- a fi„" or ..„,,,1.; tobacco of tebaeoo products to be chewed stuffed smoked absorbed dissolved, inhaled, snorted, sniffed, or ingested VENDING MACHINE. Any mechanical, electric or electronic, or other type of device which dispenses tobacco, tebaeee preduets or tobacco - related devices upon the insertion of money, tokens or other form of payment directly into the machine by the person seeking to purchase the tobacco, tobacco preduet or tobacco-related device. (1987 Code, ' 302.02) KilyXINE 11 [a OW&I01 No person shall sell or offer to sell any tobacco, tobaeee preduets or tobacco- related device without first having obtained a license to do so from the city. Subd. 1. Application. An application for a license to sell tobacco, tabaeGe pfeduets or tobacco- related devices 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 Administrator /Clerk shall forward the application to the City Council for action at its next regularly scheduled meeting. If the City Administrator /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. 302 -3 374931 MDT SH230 -42 302.03 Sale of Tobacco 302.04 Subd. 2. Action. The city may either approve or deny the license or it may delay action for the reasonable period of time as necessary to complete any investigation of the application or the applicant it deems necessary. If the city shall approve the license, the City Administrator /Clerk shall issue the license to the applicant. If the city 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. Subd. 3. Term. All licenses issued under this chapter shall expire on the last day of October of each year. Subd. 4. Revocation or suspension. Any license issued under this chapter may be revoked or suspended as provided in ' 301.4-2a penalty for a violation. No suspension or revocation may take effect until the licensee has received notice, either personally or by mail, of the opportunity for a hearing pursuant to section 302.12 of this chapter Subd. 5. Transfers. All licenses issued under this chapter shall be valid only on the 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 Council. Subd. 6. 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 chapter. Subd. 7. Display. All licenses shall be posted and displayed in plain view of the general public on the licensed premises. Subd. 8. 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 30 days but no more than 60 days before the expiration of the current license. The issuance of a license issued 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. (1987 Code, ' 302.03) 302.04 FEES. No license shall be issued under this chapter until the appropriate license fee shall be paid in full. The fee for a license shall be as provided in = section 1301.02 of this code. (1987 Code, ' 302.04) 302 -4 374931 MDT SH230 -42 302.05 Sale of Tobacco 302.06 302.05 BASIS FOR DENIAL OF LICENSE. Subd. 1. The following shall be grounds for denying the issuance or renewal of a license under this chapter; 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. &ibd. 2. if a lieense is mistakenly issued or renewed to a per-son, it s�all be 4!evaked upon the diseevery that the pefson was ineligible for the lieense tinder this see a. The applicant is under the age of 18 years; b. 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 or tobacco preduetsa tobacco- related devices; c. The applicant has had a license to sell tobacco, tebaeee preduets or tobacco- related devices revoked within the preceding 12 months of the date of the application; d. The applicant fails to provide any information required on the application or provides false or misleading information; e. The applicant is prohibited by federal, state or other Local law, ordinance or other regulation from holding a license. Subd. 2. 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. (1987 Code, ' 302.05) 302.06 PROHIBITED SALES. It shall be a violation of this chapter for any person to sell or offer to sell any tobacco, tobacco predaet or tobacco - related device: Subd. 1. To any person under the age of 18 years; Subd. 2. By means of any type of vending machine, except as may otherwise be provided in this chapter; Subd. 3. By means of self - service methods whereby the customer does not need to make a verbal or written request to an employee of the licensed premises in order to receive the tobacco, tebaeee pfedt t or tobacco- related device and whereby there is not a physical exchange of the tobacco, tebaeee predue or tobacco- related device between the licensee or the licensee ='s employee and the customer; 302 -5 374931v2 MDT SH230 -42 302.06 Sale of Tobacco 302.08 Subd. 4. By means of loonies as defined in this chapter; Subd. S. Containing opium, morphine, jimson weed, bella donna, strychnos, cocaine, marijuana or other deleterious, hallucinogenic, toxic or controlled substances except nicotine and other substances found naturally in tobacco or added as part of an otherwise lawful manufacturing process; Subd. 6. By any other means, to any other person, on in any other manner or form prohibited by federal, state or other local law, ordinance provision or other regulation. (1987 Code, ' 302.06) 302.07 VENDING MACHINES. It shall be unlawful for any person licensed under this chapter to allow the sale of tobacco, tebaeoe preduetsor tobacco - related devices by the means of a vending machine unless an employee of the licensed establishment at all times is required to activate the machine for each sale. (1987 Code, ' 302.07) Penalty, see ' 104.01 302.08 SELF - SERVICE SALES. It shall be unlawful for a licensee under this chapter to allow the sale of tobacco, deducts or tobacco- related devices by any means whereby the customer may have access to the items without having to request the item from the licensee or the licensee ='s employee and whereby there is not a physical exchange of the tobacco, tabaeee predue or the tobacco - related device between the licensee or his or her clerk and the customer. All tobacco, tebaeee preduets and tobacco - related treated devices 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. Any re tail er selli t,.,,.,ee tobacco preduets or tobaeee related devices at the time this ehapter is adopted shall eefflply this (1987 Code, ' 302.08) Penalty, see ' 104.01 0 374931Q MDT SH230 -42 302.09 Sale of Tobacco 302.09 RESPONSIBILITY. 302.1.1 All licensees under this chapter shall be responsible for the actions of their employees in regard to the sale of tobacco, tebaeoe preduets or tobacco- related devices on the licensed premises, and the sale of 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 from also subjecting the clef! an employee of the licensee to whatever penalties are appropriate under this section, state or federal law or other applicable law or regulation. (1987 Code, ' 302.09) 302.10 COMPLIANCE CHECKS AND INSPECTIONS. All licensed premises shall be open to inspection by the Police Department or other authorized city official 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 15 years but less than 18 years, to enter the licensed premises to attempt to purchase tobacco, tebaeee— products or tobacco- related devices. 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, tebaee-e preduets or tobacco- related devices when the items are obtained or attempted to be obtained as a part of the compliance check. No minor used in compliance checks shall attempt to use a false identification misrepresenting the minor ='s age, and all minors lawfully engaged in a compliance check shall answer all questions about the minor ='s age asked by the licensee or his or her employee and shall produce any identification, if any exists, for which he or she is asked. 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. (1987 Code, ' 302.10) 302.11 OTHER ILLEGAL ACTS. Unless otherwise provided, the following acts shall be a violation of this chapter. Subd. 1. Illegal sales to minors It shall be a violation of this chapter for any person to sell or otherwise provide any tobacco, tebaeee pfedxet or tobacco - related device to any minor. Subd. 2. Illegal possession. It shall be a violation of this chapter for any minor to have in his or her possession any tobacco, tebaeeo preduet or tobacco - related device. This subdivision shall not apply to minors lawfully involved in a compliance check. 302 -7 37493Iv2 MDT SH23042 302.11 Sale of Tobacco 302.12 Subd. 3. Illegal use. It shall be a violation of this chapter for any minor to smoke, chew, sniff or otherwise use any tobacco, tobacco- produe or tobacco-related device. Subd. 4. Illegal procurement. It shall be a violation of this chapter for any minor to purchase or attempt to purchase or otherwise obtain any tobacco, tebaeoe predaet or tobacco - related device, and it shall be a violation of this chapter for any person to purchase or otherwise obtain the items on behalf of a minor. It shall further be a violation for any person Seto coerce or attempt to coerce a minor to illegally purchase or otherwise obtain or use any tobacco, tebaeee preduet or tobacco - related device. This subdivision shall not apply to minors lawfully involved in a compliance check. Subd. 5. Use offalse identification. It shall be a violation of this chapter 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. Subd. 6. Illegal sales by minors It shall be a violation of this chapter: a. For anyone under the age of 18 to sell tobacco, tobaeee products or tobacco- related devices; b. For a licensee to cause or permit anyone under the age of 18 to sell tobacco, tobacco preduets or tobacco-related devices. (1987 Code, ' 302.11) Penalty, see ' 104.01 302.12 VIOLATIONS AND HEARING PROCESS Subd. 1. Notice. Upon discovery of a suspected violations, 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. Subd. 2. Hearings. If a person accused of violating this section so requests, a hearing shall be scheduled, the time and place of which shall be ....>,'"� provided to the accused violator. Subd. 3. Hearing ofcer. An n d m iai stfa4 ive T„ redg from t h e S Offi „rl4eafing- Examiners shall , ce as the A hearing officer designated by the city shall serve as the hearing officer 302 -8 374931v2 MDT SH230 -42 302.12 Sale of Tobacco 302.13 Subd. 4. Decision. If the hearing officer determines that a violation of this chapter did occur, that decision along with the hearing officer ='s reasons for finding a violation and the penalty to be imposed under ' section 302.13 of this chapter shall be recorded in writings, 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, the findings shall be recorded and a copy provided to the acquitted accused violator. Subd. 5. Appeals. Appeals of any decision made by the hearing officer shall be filed in the district court for the jurisdiction of the city in which the alleged violation occurred. Subd. 6. A&denieanarigroseetition. Nothing in this ehaptef shall prohibit the eit-y 4em seeking proseemion as a misdemeaner fef any alleged violation of !his chapter-. if the city eleets to seek ffiisElemeaner proseetAien, no administrative penalty shall be ifnposed. Sebd. 7. Subd. 6. Continued violation. Each violation, and every day in which a violation occurs or continues, shall constitute a separate offense. (1987 Code, ' 302.12) Penalty, see ' 104.01 302.13 PENALTIES. Subd. 1. Licensees. Any licensee found to have violated this chapter, or whose employee shall have violated this chapter, shall be charged an administrative fine as provided in ' section 1301.02 of this code. In addition, after the third offense, the license shall be suspended for not less than seven days. Subd. 2. Other individuals. Other individuals, other than minors regulated by subdivision 3 of this section, found to be in violation of this chapter shall be charged an administrative fee as provided in ' section 1301.02 of this code. Subd. 3. Minors. Minors found in unlawful possession of or who unlawfully purchase or attempt to purchase tobacco, tobacco preduets or tobacco - related devices shall be subject to enrollment and evidence of successful completion of a tobacco education course provided by Independent School District (Minnetonka) 276 or Independent School District 277 (Westonka) for the first offense and subject to a fine of $100 for each offense subsequent. [Comment: Is this still current ?] (I checked with the SLMPD and they are no longer required by state statute to notify the school of a violation; it appears this maybe outdated, so no longer needed. I also checked with the schools and they indicated they were not aware of this requirement — Jean) 302 -9 374931v2 MDT SH230 -42 302.13 Sale of Tobacco 302.14 Subd. 4. Misdemeanor. Nothing in this see-tien shall prohibit the city from seeking prosecution as a misdemeanor for any violation of this chapter. If the city elects to seek misdemeanor prosecution, no administrative penalty shall be imposed. (1987 Code, ' 302.13) Penalty, see ' 104.01 302.14 EXCEPTIONS AND DEFENSES. Nothing in this chapter shall prevent the providing of tobacco, tests or tobacco - related devices 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 chapter for a person to have reasonably relied on proof of age as described by state law. (1987 Code, ' 302.14) 302 -10 374931v2 MDT SH23042