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Ord 571Shorewood, MN Code of Ordinances CHAPTER 302 SALE OF TOBACCO Section 302.01 Purpose 302.02 Definitions 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 21 years purchase or otherwise obtain, possess and use tobacco, 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 21 years and that those persons who reach the age of 21 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, 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, 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. § 144.391. (Ord. 475, passed 5 -9 -2011) Ordinance 571 Shorewood, MN Code of Ordinances 302.02 DEFINITIONS. 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, 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, 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, and tobacco - related devices. INDIVIDUALLY PACKAGED. The practice of selling any tobacco wrapped individually for sale. Individually wrapped tobacco 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. A person under the age of full legal responsibility as defined by State Statute. 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, 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, or tobacco - related devices in any manner where any person shall have access to the tobacco, 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, or tobacco - related device between the customer and the licensee or employee. SELF - SERVICE MERCHANDISING shall not include vending machines. TOBACCO. Cigarettes and any product containing, made, or derived from tobacco that is intended for human consumption, whether chewed, smoked, absorbed, dissolved, Ordinance 571 2 Shorewood, MN Code of Ordinances inhaled, snorted, sniffed, or ingested by any other means, or any component, part, or accessory of a tobacco product; 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 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 tobacco 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, 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, or tobacco - related device. (1987 Code, § 302.02) (Ord. 475, passed 5 -9 -2011) 302.03 LICENSE. No person shall sell or offer to sell any tobacco, 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, 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. 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. Ordinance 571 3 Shorewood, MN Code of Ordinances 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 a 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 §302.12. 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 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) (Ord. 475, passed 5 -9 -2011) 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 §1301.02 of this code. (1987 Code, § 302.04) (Ord. 475, passed 5 -9 -2011) 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 Ordinance 571 4 Shorewood, MN Code of Ordinances by law, the existence of any particular ground for denial does not mean that the city must deny the license. 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 - related devices; C. The applicant has had a license to sell tobacco 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) (Ord. 475, passed 5 -9 -2011) 302.06 PROHIBITED SALES. It shall be a violation of this chapter for any person to sell or offer to sell any tobacco, or tobacco - related device: Subd. 1. To any person under the age of 21 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, or tobacco - related device and whereby there is not a physical exchange of the tobacco, or tobacco - related device between the licensee or the licensee's employee and the customer; Subd. 4. By means of loosies as defined in this chapter; Subd. 5. 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. From any body art establishment (licensed), as defined in Chapter 1201.02. Ordinance 571 5 Shorewood, MN Code of Ordinances Subd. 7. 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) (Ord. 475, passed 5 -9 -2011; Am. Ord. 558, passed 6 -25 -2018) 302.07 VENDING MACHINES. It shall be unlawful for any person licensed under this chapter to allow the sale of tobacco, or 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) (Ord. 475, passed 5 -9 -2011) 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, 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 or the tobacco - related device between the licensee or his or her clerk and the customer. All tobacco, and tobacco - related 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. (1987 Code, § 302.08) (Ord. 475, passed 5 -9 -2011) Penalty, see § 104.01 302.09 RESPONSIBILITY. All licensees under this chapter shall be responsible for the actions of their employees in regard to the sale of tobacco, 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 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) (Ord. 475, passed 5 -9 -2011) Ordinance 571 6 Shorewood, MN Code of Ordinances 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 21 years, to enter the licensed premises to attempt to purchase tobacco, 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, 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) (Ord. 475, passed 5 -9 -2011) 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, 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, or tobacco - related device. This subdivision shall not apply to minors lawfully involved in a compliance check. Subd. 3. Illegal use. It shall be a violation of this chapter for any minor to smoke, chew, sniff or otherwise use any tobacco, 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, 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 to coerce or attempt to coerce a minor to illegally purchase or otherwise obtain or use any tobacco, or Ordinance 571 7 Shorewood, MN Code of Ordinances tobacco - related device. This subdivision shall not apply to minors lawfully involved in a compliance check. Subd. 5. Use of false 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, or tobacco - related devices; b. For a licensee to cause or permit anyone under the age of 18 to sell tobacco, or tobacco - related devices. (1987 Code, § 302.11) (Ord. 475, passed 5 -9 -2011) Penalty, see § 104.01 302.12 VIOLATIONS AND HEARING PROCESS. Subd. 1. 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. 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 officer. A hearing officer designated by the city shall serve as the hearing officer. 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 § 302.13 of this chapter 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, 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. Continued violation. Each violation, and every day in which a violation occurs or continues, shall constitute a separate offense. Ordinance 571 8 Shorewood, MN Code of Ordinances (1987 Code, § 302.12) (Ord. 475, passed 5 -9 -2011) 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 § 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 § 1301.02 of this code. Subd. 3. Misdemeanor. Nothing in this section 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) (Ord. 475, passed 5 -9 -2011) Penalty, see § 104.01 302.14 EXCEPTIONS AND DEFENSES. Nothing in this chapter shall prevent the providing of tobacco, 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) (Ord. 475, passed 5 -9 -2011) This ordinance is effective upon publication. ADOPTED BY THE CITY COUNCIL of the City of Shorewood, Minnesota on the 27th day of January, 2020. ATTEST: Scott Zerby, Ma 4r Sandie Thone, City Clerk Ordinance 571 9