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)
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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,
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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.
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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
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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.
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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)
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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
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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.
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(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
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