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Posted on: August 4, 2020

[ARCHIVED] Ordinance No. 1381 to Amend the Fridley City Code Chapter 12, Tobacco Products

ORDINANCE NO. 1381

AN ORDINANCE AMENDING THE FRIDLEY CITY CODE CHAPTER 12, TOBACCO PRODUCTS, REVISING DEFINITIONS, LICENSING PROCEDURES, PROHIBITED ACTS, ADMINISTRATIVE PROCEDURES AND VIOLATIONS

The City Council of the City of Fridley does ordain, after review, examination and staff recommendation that Chapter 12, Tobacco Products, of the Fridley City Code be amended as follows:

FRIDLEY CITY CODE

CHAPTER 12.  TOBACCO PRODUCTS

(10841381)

12.01. DEFINITION OF TERMS    

The following definitions shall apply in the interpretation and application of this chapter and the following words and terms, wherever they occur in this chapter, are defined as follows:

1.         “Self Service Merchandising”

This is an open display of tobacco products where the public has access without the intervention of an employee.

2.         “Tobacco Product”

This includes cigarettes, cigars, cheroots, stogies, perique, granulated, plug cut, crimp cut, ready rubbed and other smoking tobacco, snuff, snuff flower, cavendish, plug and twist tobacco, fine cut and other chewing tobaccos, shorts, refuse strips, clippings, cuttings and sweepings of tobacco prepared in such manner as to be suitable for chewing, sniffing or smoking in a pipe, rolling paper or other tobacco related devices.

Any substance or item containing tobacco leaf, including but not limited to, cigarettes; cigars; little cigars; pipe tobacco; snuff; snuff flour; fine cut or other chewing tobacco; cheroots; stogies; perique; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco, Cavendish; shorts; plug and twist tobacco; dipping tobacco; refuse scraps, clippings, cuttings, and sweepings of tobacco; and other kinds and forms of tobacco leaf prepared in such manner as to be suitable for chewing, sniffing, or smoking. “Tobacco product” includes any products 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. Tobacco excludes 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.

3.         “Tobacco Related Devices”

“Tobacco Related Devices” shall mean 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

4.         “Electronic Delivery Devices

"Electronic Delivery Device" shall mean 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 devices include but are 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 include any component part of a product, whether or not marketed or sold separately. Electronic delivery device excludes 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.

5.         “Tobacco Products Shop”

“Tobacco Products Shop” shall mean a retail establishment that cannot be entered at any time by persons younger than 21 years of age, has an entrance door opening directly to the outside, and that derives more than 90 percent of its gross revenue from the sale of tobacco, tobacco related devices, and electronic delivery devices, 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 of liquor, food, or restaurant license.

6.         “Flavored Tobacco”

“Flavored Tobacco” shall mean any tobacco product or tobacco related device that contains a taste or aroma, other than the taste or aroma of tobacco, that is distinguishable by any ordinary consumer either prior to or during consumption of a tobacco product, including, but not limited to, tastes or aromas of menthol, mint, wintergreen, chocolate, vanilla, honey, cocoa, or any candy, dessert, alcoholic beverage, fruit, herb or any spice. A public statement or claim made or disseminated by the manufacturer of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate such statements or claims, that  a tobacco product has or produces a taste or aroma other than tobacco may be the one of the methods used to determine that the product is a flavored tobacco product, and shall, to the extent permitted by law, create a rebuttable presumption that the product is a flavored tobacco product.

12.02.  LICENSE REQUIRED         

No person shall directly, by coin machine, or otherwise, keep for retail sale, sell at retail, or otherwise dispose of, any cigarette, cigarette wrapper, tobacco, or tobacco products tobacco product, tobacco related devices or electronic delivery device at any place in the City unless they have obtained a license therefor as provided herein.

12.03.  APPLICATION FOR LICENSE:  GRANTING OF LICENSE  BY COUNCIL;  ISSUANCE OF LICENSE BY CLERK CITY MANAGER OR THEIR DESIGNEE       

Application for such license shall be made to the City Clerk City Manager or their designee and shall state the full name and address of the applicant, the location of the building to be occupied by the applicant in the conduct of his business, the kind of business to be conducted, and such other information as the City Clerk City Manager or their designee may require. The license shall be granted by the City Council and issued by the City Clerk City Manager or their designee upon payment of the required fee. 

New licenses and license renewals shall be issued or denied by the City Manager or their designee with an initial review period of up to 30 business days in which to issue or deny a license.

Administrative offenses are outlined in Section 12.08.

12.04.  LICENSE FEE; TERM; DATE                                                                                                                                                        

The annual license fee and expiration date shall be as provided in Chapter 11 of this Code. Licenses are not transferable.

12.05.  DISPLAY OF LICENSE ON PREMISES   

Every such license shall be openly displayed in the place of business at all times to which it has been issued.

12.06.  TRAINING   

Every retailer requesting a license under this ordinance chapter shall implement a training program for employees regarding laws relating to the sale of tobacco products. Every licensee shall certify on its annual tobacco application that all employees have been trained to comply with state laws regarding the sale of tobacco products.

12.07.  PROHIBITED ACTS

A.        No person shall sell, give away, or otherwise furnish any cigarette, cigarette paper, tobacco, or tobacco products tobacco product, tobacco related devices or electronic delivery device to any person under the age of eighteen 21 years.

B.        No person shall keep for sale, sell, or dispose of any cigarette or other tobacco product tobacco product, tobacco related devices or electronic delivery device containing opium, morphine, jimson weed, bella donna, strychnia, cocaine, marijuana, or any other deleterious or poisonous drug, except nicotine.

C.        No person shall sell or dispense any tobacco product tobacco product, tobacco related devices or electronic delivery device through the use of a vending machine, unless the vending machine is electronically activated for each transaction by the licensee or a person in their employ, or unless the vending machine is in a nonpublic area with no minor access as verified by a premises survey conducted by the Fridley Police Department of Public Safety.

D.        No person shall offer for sale any tobacco product, tobacco related devices or electronic delivery device by means of self-service merchandising, unless the display is in direct view of and in no case more than 20 feet from the primary cashier and meets one of the following security requirements: within three feet of the cashier or in an enclosed case which registers an audible alarm when opened or, in a totally controlled separate area, or an approved electronic security system is in place. The exception requirements must be verified by a premises survey conducted by the Department of Public Safety.

E.         Every licensee shall be responsible for the conduct of its employees while on the licensed premises and any sale or other disposition of tobacco products, tobacco related devices or electronic delivery device by an employee to a person under 18 21 years of age shall be considered an act of the licensee for purposes of imposing an administrative penalty, license suspension, or revocation.

F.         Pursuant to the authority granted to the City of Fridley by Minnesota Statutes Section 144.417, the operator of any tobacco product shop licensed under Section 12.02 of the Fridley City Code is hereby prohibited from any of the following:

Permitting within the indoor area of a tobacco products shop the sampling of any tobacco product which was not furnished by the tobacco product shop on the date and at the time the sampling occurs;

Providing in exchange for a fee or any other consideration seating within or access to the indoor area of a tobacco product shop;

Except for bona fide sale of a tobacco related device or an electronic delivery device, providing or otherwise making available for use by a customer, potential customer, or any other person a tobacco related device or an electronic delivery device for the purpose of sampling any tobacco product, provided that this subsection shall not prevent providing or otherwise making available for sampling, testing, or instructional purposes, an electronic delivery device as defined in Section 12.01 of the Fridley City Code.

G.        No person, or retailer shall sell or offer for sale any flavored tobacco products beginning May 1, 2021. This restriction does not apply to tobacco products shops.

12.08.  ADMINISTRATIVE OFFENSES    

A.        Administrative Civil Penalties. Administrative offense procedures established pursuant to this chapter are intended to provide the public and the City with an informal, cost effective and expeditious alternative to traditional criminal charges for violations of this ordinance chapter. The procedures are intended to be voluntary on the part of those who have been charged with administrative offenses.

1.     Individual. At any time prior to the payment of the administrative penalty as is provided for hereafter, the individual may withdraw from participation in the procedures in which event the City may bring criminal charges in accordance with law. Likewise, the City, at its discretion, may bring criminal charges in the first instance. In the event a party participates in the administrative offense procedures but does not pay the monetary penalty which may be imposed, the City will seek to collect the costs of the administrative offense procedures as part of a subsequent criminal sentence in the event the party is charged and is adjudicated guilty of the criminal violation.

2.     Licensee. At any time prior to the payment of the administrative penalty as is provided for hereafter, the licensee may withdraw from participation in the procedures in which event the City may permanently revoke the licensee’s tobacco license in accordance with law. Likewise, the City, in its discretion, may revoke the licensee’s tobacco license in the first instance. In the event a licensee participates in the administrative offense procedures but does not pay the monetary penalty which may be imposed, the City will suspend the licensee’s tobacco license in accordance with section 12.08B of this ordinance chapter.

B.        Notice. Any officer of the Fridley Police Department The City Manager or their designee shall, upon determining there has been a violation, notify the violator of the violation. Said notice shall set forth the nature, date and time of violation, the name of the officer issuing the notice and the amount of the scheduled penalty.

C.        Payment. Once such notice is given, the alleged violator may, within twenty (20) days of the time of issuance of the notice pay the amount set forth on the notice, or may request a hearing in writing, as provided for hereafter. The penalty may be paid in person or by mail, and payment shall be deemed to be an admission of the violation.

D.        Hearing. Any person contesting an administrative offense pursuant to this chapter may request a hearing before the Hearing Examiner. Such request shall be filed in writing with the office of the City Manager or their designee Public Safety director within twenty (20) calendar days of the offense. The City Manager or their designee Public Safety Director  shall notify the Hearing Examiner, who will notify the licensee of the date, time, and place of hearing. The hearing shall be conducted no more than twenty (20) calendar days after the Hearing Examiner receives notice of the request, unless a later date is mutually agreed to by the Hearing Examiner, the licensee, sales clerk and the City. Within ten (10) calendar days after such hearing, the Hearing Examiner shall affirm, repeal, or modify the charge against the licensee or sales clerk.

E.         Appeal. Any person aggrieved by the decision of the Hearing Examiner may appeal with the City Manager or their designee Public Safety Director within twenty (20) calendar days of receiving notice of the Hearing Examiner’s decision. At its next available regular meeting following the filing of a notice of appeal, the Council shall review the decision and findings of fact of the Hearing Examiner and shall affirm, repeal or modify that decision.

EF.      Hearing Examiner. The position of Hearing Examiner is hereby created. The City Manager or their designee may, at their his discretion and with the approval of the Council, contract with third parties for the furnishing of all services of the Hearing Examiner as contained in this chapter and set the rate of compensation therefor.

FG.      Qualifications. The Hearing Examiner shall be an individual trained in law; however, it shall not be required that the Hearing Examiner be currently licensed to practice law in the State of Minnesota.

GH.     Duties. The Hearing Examiner shall have the following duties:

1.     Set dates and hear all contested cases;

2.     Take testimony from all interested parties;

3.     Examine all facts, evidence and testimony presented;

34.   Make a complete record of all proceedings including findings of fact and conclusions of law;

45.   Affirm, repeal or modify the penalty accessed.

HI.       Failure to Pay. In the event a party charged with an administrative penalty is an individual who fails to pay the penalty, if an individual, the party will may be charged with the criminal offense.  If In the event a party charged with an administrative penalty is a licensee, the Council will suspend the licensee’s tobacco license.

IJ.        Disposition of Penalties. All penalties collected pursuant to this Chapter shall be paid to the City’s treasurer and will be deposited in the City’s general fund.

12.09.  VIOLATIONS          

A.        Administrative Civil Penalties: Individuals. Any person who sells any tobacco product, tobacco related devices or electronic delivery device to a person under the age of 18 21 years is subject to an administrative penaltyand any person under the age of 18 who attempts to purchase a tobacco product is subject to an administrative penalty. The administrative penalties are as follows:

1.         First violation. The penalty for the first violation is $250.00.

2.         Second violation within 12 months. The penalty for the second violation is $500.00.

3.         Third violation within 12 months. The penalty for the third violation is $750.00.

B.        Administrative Civil Penalties: Licensee. If a licensee or an employee of a licensee is found to have sold tobacco, tobacco-related products or electronic delivery devices to a person under the age of 18 21 years, the licensee shall be subject to an administrative penalty as follows:

1.         First violation. The penalty for the first violation is $500.00.  If the fine is not paid within 20 days the City may suspend the license to sell tobacco products for a period not to exceed 10 ten days.

2.         Second violation within 12 months. The penalty for the second violation is $1000.00. If the fine is not paid within 20 days the City may suspend the license to sell tobacco products for a period not to exceed 30 days.

3.         Third violation within 12 months. The City may permanently revoke the tobacco license.

C.        Defense. It is a defense to the charge of selling tobacco to a person under the age of 18 21 years, that the licensee or individual, in making the sale, reasonably and in good faith relied upon representation of proof of age described in State Statute Section 340A.503. subdivision 6six, paragraph (a).

D.        Exemption. A person, at least 17 years of age, but under the age of 21, no younger than 15 and no older than 17, may be enlisted to assist in the tests of compliance, provided that written consent from the person’s parent or guardian has been obtained if the person is a minor and that the person shall at all times act only under the direct supervision of a law enforcement officer or an employee of the licensing department, or in conjunction with a compliance check effort that has been pre-approved by the Fridley Police Department. 

A person who purchases or attempts to purchase tobacco-related products tobacco product, tobacco related devices or electronic delivery device while in this capacity is exempt from the penalties imposed by subdivisions (Aa) above.

E.         Revocation. The City

 Council has the authority to revoke any license as noted in 11.08 Fridley City Code Chapter 11.

PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THIS ___ DAY OF ___, 2020.                                                                                               

                                                                                                ______________________________

                                                                        Scott J. Lund, Mayor

ATTEST:

_______________________________

Daniel Tienter, City Clerk

First Reading: July 27, 2020

Second Reading: August 10, 2020

Publication:

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