HomeMy WebLinkAboutOrdinance 1371ORDINANCE NO. 1371
BEING AN ORDINANCE AMENDING ORDINANCE NO. 853, CITY CODE OF
1977, PERTAINING TO CIGARETTE/TOBACCO SALES
The City of Columbia Heights does ordain:
Section 2:
Section 5.302 of Ordinance No. 853, City Code of 1977, which currently
reads as follows, to wit:
5.302(1)
No person shall engage in the trade or sale of retail of cigarettes or
cigarette wrappers without a license issued pursuant to the provisions of
this chapter.
5.302(2)
License applicants under this section shall state in the application the
location where cigarettes or cigarette wrappers will be sold, the general
nature of other business conducted at said location, and whether sales will
be made by vending machine or over the county.
5.302(3)
A separate license shall be required for each location or machine where
cigarettes or wrappers are sold.
5.302(4)
No license or agent or employee thereof shall sell or distribute cigarettes or
cigarette wrappers to a minor.
5.302(5)
The requirements for a license under this section is supplemental to the
requirement for a license under any other section of this Article.
Shall hereafter be amended to read as follows:
SECTION 2
CIGARETTE/TOBACCO SALES
5.302(1)
PURPOSE An ordinance relating to the sale, possession, and use of
tobacco, tobacco products, and tobacco related devices in the City and to
reduce the illegal sale, possession, and use of such items to and by minors.
Because the City recognizes that many persons under the age of 18 years
purchase or otherwise obtain, possess, and use tobacco, tobacco products,
and tobacco related devices, and such sales, possession, and use are
violations of State laws; studied 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
s.302(2)
ordinance shall be intended to regulate the sale, possession, and use of
tobacco, tobacco products, 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, tobacco products, 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 Mn. Statute 144.391.
DEFINITIONS AND INTERPRETATIONS Except as may otherwise
be provided or clearly implied by context, all terms shall be given their
commonly accepted definitions. The singular shall include the plural ahd
the plural shall include the singular. The masculine shall include the
feminine and neuter, and vice-versa. The term "shall" means mandatory and
the term "may means permissive. The following terms shall have the
definitions given to them:
(A) Tobacco or Tobacco Products. "Tobacco" or "Tobacco products"
shall mean any substance or item containing tobacco leaf, including but not
limited to, cigarettes; cigars; pipe tobacco; snuff, fine cut or other chewing
tobacco, cheroots, stogies; perique; granulated, plug cut, crimp cut, ready-
rubbed, and other smoking tobacco; snuff flowers; cavendish; short plugs
and twist tobacco; dipping tobaccos; 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.
(B) Tobacco Related Devices. "Tobacco related devices" shall mean any
tobacco product as well as a pipe, rolling papers, or other device used in a
manner which enables the chewing, sniffing, or smoking of tobacco or
tobacco products.
(C) Self-Service Merchandising. "Self Service Merchandising" shall mean
open displays of tobacco, tobacco products, or tobacco related devices in
any manner where any person shall have access to the tobacco, tobacco
products, 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, tobacco product,
or tobacco related device between the customer and the licensee or
employee. Self-service merchandising shall not include vending machines.
(D) Vending Machine. "Vending Machine" shall mean any mechanical,
electric or electronic, or other type of device which dispenses tobacco,
tobacco products, 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 product, or tobacco related
device.
(E) Individual Packaged. "Individually packaged" shall mean the practice
of selling any tobacco or tobacco product wrapped individually for sale.
Individually wrapped tobacco and tobacco 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 section shall not be considered individually
packaged.
(F) Loosies. "Loosies" shall mean the common term used to refer t a single
or individually packaged cigarettes.
(G) Minor. "Minor" shall mean any natural person who has not yet reached
the age of eighteen (18) years.
(H) Retail Establishment. "Retail Establishment" shall mean any place of
business where tobacco, tobacco products, 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.
(I) Moveable Place of Business "Movable Place of Business" shall refer to
any form of business operated out 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.
(J) Sale. A "sale" shall mean any transfer of goods for money, trade, barter,
or other consideration.
(K) Compliance Checks. "Compliance Checks" shall mean the system the
City uses to investigate and ensure that those authorized to sell tobacco,
tobacco products, and tobacco related devices are following and complying
with the requirements of this ordinance. Compliance checks shall involve
the use of minors as authorized by this ordinance. Compliance checks shall
also mean the use of minors who attempt to purchase tobacco, tobacco
products, 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, tobacco products, and tobacco related devices.
s.302(3)
LICENSE REQUIRED. No person shall sell or offer to sell any tobacco,
tobacco products, or tobacco related devices without first having obtained
a license to do so from the City.
(A) Application, An application for a license to sell tobacco, tobacco
products, 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 License Clerk shall forward the application to the City
Council for actions at its next regularly scheduled meeting. If the 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.
(B) Action. The City Council may either approve or deny the license, or it
may delay action for such reasonable period of time as necessary to
complete any investigation of the application or the applicant it deems
necessary. The clerk shall refer the completed application to the Police
Department for a background and record check prior to formal review by
the City Council. If the City Council shall approve the license, the License
Clerk shall issue the license to the applicant. If the City Council denies the
license, notice of the denial shall be given to the applicant along with notice
of the applicant's right to appeal the Council's decision.
(C) Term. The term of each license shall follow the calendar year with an
expiration date of December 31 of each year and are not pro-rated.
(D) Revocation or Suspension. Any license issued under this ordinance
may be revoked or suspended as provided in the Violations and Penalties
section of this ordinance.
(E) Transfers. All licenses issued under this ordinance shall be valid only on
the premises for which the license was issued and only for the person to
whom the license was issued. Change of location or applicant will be
required to be treated as a new application.
(F) 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 ordinance.
(G) Display. All licenses shall be posted and displayed in plain view of the
general public on the licensed premises.
(H) Renewals. The renewal of a license issued under this section shall be
handled in the same manner as the original application. The request for
renewal shall be made at least sixty days but no more than ninety days
before the expiration of the current license. The issuance of a license issued
under this ordinance 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.
5.302(4)
FEES. No license shall be issued under this ordinance until the appropriate
license fee shall be paid in full.
5.302(5)
BASIS FOR DENIAL OF LICENSE The following shall be grounds for
denying the issuance or renewal of a license under this ordinance; 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. 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;
(A) The applicant is under the age of 18 years.
(B) The applicant or any employee thereof 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 products, or tobacco
related devices.
(C) The applicant has had a license to sell tobacco, tobacco products, or
tobacco related devices revoked within the preceding twelve months of the
date of 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 such a license.
5.302(6)
PROHIBITED SALES It shall be a violation of this ordinance for any
persons, employee or responsible party to sell or offer to sell any tobacco,
tobacco product, or tobacco related device:
(A) To any person under the age of eighteen (18) years.
(B) By means of any type of vending machine.
(C) 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 premise
in order to receive the tobacco, tobacco product, or tobacco related device
and whereby there is not a physical exchange of the tobacco, tobacco
product, or tobacco related device between the licensee or the licensee's
employee, and the customer.
(D) By means ofloosies.
(E) Containing opium, morphine, jimson weed, bella donna, strychnos,
cocaine, marijuana, or other type of deleterious, hallucinogenic, or toxic or
controlled substance except nicotine and other substances found naturally
in tobacco or added as part of an otherwise lawful manufacturing process.
(F) By any other means, to any other person, or in any other manner or
form prohibited by Federal, State, or other local law, ordinance provision,
or other regulation.
5.302(7)
VENDING MACHINES PROHIBITION It shall be unlawful for any
person licensed under this ordinance to allow the sale of tobacco, tobacco
products, or tobacco related devices by the means of a vending machine.
5.302(8)
SELF-SERVICE SALES. It shall be unlawful for a licensee under this
ordinance to allow the sale of tobacco, tobacco products, or tobacco
related devices by any means whereby the customer may have access to
such 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, tobacco product, or the tobacco related device between the
licensee and his or her clerk and the customer. All tobacco, tobacco
products, 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. Any
retailer selling tobacco, tobacco products, or tobacco related devices at the
time this ordinance is adopted shall comply with this section before a new
license is issued for the next license year.
5.302(9)
RESPONSIBILITY. All licensees under this ordinance shall be
responsible for the actions of their employees in regard to the sale of
tobacco, tobacco products, or tobacco related devices on the licensed
premises, and the sale of such an item by an employee shall be considered a
sale by the license holder. It shall be the license holders responsibility to
provide training to any employee conducting tobacco sales and/or sales of
tobacco related products and devices and to document proof of such
training to be provided upon request by any enforcing agent of the City.
5.302(10)
COMPLIANCE CHECKS AND INSPECTIONS. All licensed premises
shall be open to inspection by the City Police or other authorized City
Official during regular business hours. From time to time, but at least one
per year, the City shall conduct compliance checks by engaging, with the
written consent of their parents and guardians, minors over the age of
fifteen (15) years but less than eighteen (18) years, to enter into the
licensed premise to attempt to purchase tobacco, tobacco products, or
tobacco related devices. Minors used for the purpose of compliance checks
shall be supervised by City designated law enforcement officers or other
designated City personnel. Minors used for the purpose of compliance
checks shall not be guilty of unlawful possession of tobacco, tobacco
products, or tobacco related devices when such items are 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
minors age asked by the licensee or his or her employee and shall produce
any identification 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.
OTHER ILLEGAL ACTS Unless otherwise provided, the following acts
shall be a violation of this ordinance.
A. Illegal Sales It shall be a violation of this ordinance for any person to
sell or otherwise provide any tobacco, tobacco product, or tobacco related
device to any minor.
B. Illegal Possession It shall be a violation of this ordinance for any minor
to have in his or her possession any tobacco, tobacco product, or tobacco
related device. This subdivision shall not apply to minors lawfully involved
in a compliance check on behalf of the City.
C. Illegal Use It shall be a violation of this ordinance for any minor to
smoke, chew, sniff, or otherwise use any tobacco, tobacco product, or
tobacco related device.
D. Illegal Procurement It shall be a violation of this ordinance for any
minor to purchase or attempt to purchase or otherwise obtain any tobacco,
tobacco product, or tobacco related device, and it shall be a violation of
this ordinance for any person to purchase or otherwise obtain such items
on behalf of a minor. It shall also be a violation of this ordinance for any
person to sell or otherwise provide any tobacco, tobacco product, or
tobacco related device to any minor, and 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, tobacco product, or tobacco related
device. This subdivision shall not apply to minors lawfully involved in a
compliance check on behalf of the City.
E. Use of False Identification It shall be a violation of this ordinance 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.
5.302(12)
VIOLATIONS. In addition to any fine or other penalty, whether civil or
criminal, violation of this ordinance by a licensee under this ordinance shall
be grounds for the suspension or revocation of the license.
A. 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.
B. Hearings. If a person accused of violating this ordinance so requests, a
hearing shall be scheduled, the time and place of which shall be published
and provided to the accused violator.
C. Hearing Officer. The City Council shall serve as the hearing officer.
D. Decision. If the hearing officer determines that a violation of this
ordinance did occur, that decision, along with the hearing officers reason
for finding a violation and the penalty to be imposed under the Penalty
section of this ordinance, 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,
such findings shall be recorded and a copy provided to the acquitted
accused violator. Likewise, if the hearing officer finds that no violation
occurred or finds grounds for not imposing any penalty, such findings shall
be recorded and a copy provided to the acquitted accused violator.
E. Appeals. Appeals of any decision made by the hearing officer shall be
filed in the district court for the city in which the alleged violation
occurred.
F. Misdemeanor Prosecution. Nothing in this section shall prohibit the City
from seeking prosecution as a misdemeanor for any alleged violation of this
ordinance. If the City elects to seek misdemeanor prosecution, no
administrative penalty shall be imposed.
G. Continued Violation. Each violation, and every day in which a violation
occurs or continues, shall constitute a separate offense.
5.302(13) PENALTIES.
A. Licensees. Any licensee found to have violated this ordinance, or whose
employee shall have violated this ordinance, shall be charged an
administrative fine of $75.00 for a first violation of this ordinance; $200.00
for a second offense at the same licensed premises within a twenty-four
(24) month period; and $250.00 for a third or subsequent offense at the
same location within a twenty-four (24) month period. In addition, after the
third offense, the license shall be suspended for not less than seven (7)
days.
B. Other Individuals. Other individuals, other than minors regulated by
Section C of this subsection, found to be in violation of this ordinance shall
be charged an administrative fee of $50.00.
C. Minors. Minors found in unlawful possession of, or who unlawfully
purchase or attempt to purchase, tobacco, tobacco products, or tobacco
related devices, shall be required to attend a diversion or educational
program.
D. Misdemeanor. Nothing in this section shall prohibit the City from
seeking prosecution as a misdemeanor for any violation of this ordinance.
5.302(14)
EXCEPTIONS AND DEFENSES. Nothing in this ordinance shall
prevent the providing of tobacco, tobacco products, 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
ordinance for a person to have reasonably relied on proof of age as
described by State law.
5.302(15)
SEVERABILITY AND SAVINGS CLAUSE. If any section or portion
of this ordinance shall be found unconstitutional or otherwise invalid or
unenforceable by a court of competent jurisdiction, that finding shall not
serve as an invalidation or effect the validity and enforceability of any other
section or provision of this ordinance.
ORDINANCE NO. 1371
BEING AN ORDINANCE AMENDING ORDINANCE NO. 853, CITY CODE OF
1977, PERTAINING TO CIGARETTE/TOBACCO SALES
The City of Columbia Heights does ordain:
Section 2:
Section 5.302 of Ordinance No. 853, City Code of 1977, which currently
reads as follows, to wit:
5.302(1)
No person shall engage in the trade or sale of retail of cigarettes or
cigarette wrappers without a license issued pursuant to the provisions of
this chapter.
5.302(2)
License applicants under this section shall state in the application the
location where cigarettes or cigarette wrappers will be sold, the general
nature of other business conducted at said location, and whether sales will
be made by vending machine or over the county.
5.302(3)
A separate license shall be required for each location or machine where
cigarettes or wrappers are sold.
5.302(4)
No license or agent or employee thereof shall sell or distribute cigarettes or
cigarette wrappers to a minor.
5.302(5)
The requirements for a license under this section is supplemental to the
requirement for a license under any other section of this Article.
Shall hereafter be amended to read as follows:
SECTION 2
CIGARETTE/TOBACCO SALES
5.302( )
PURPOSE An ordinance relating to the sale, possession, and use of
tobacco, tobacco products, and tobacco related devices in the City and to
reduce the illegal sale, possession, and use of such items to and by minors.
Because the City recognizes that many persons under the age of 18 years
purchase or otherwise obtain, possess, and use tobacco, tobacco products,
and tobacco related devices, and such sales, possession, and use are
violations of State laws; studied 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
ordinance shall be intended to regulate the sale, possession, and use of
tobacco, tobacco products, 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, tobacco products, 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 Mn. Statute 144.391.
5.302(2)
DEFINITIONS AND INTERPRETATIONS Except as may otherwise
be provided or clearly implied by context, all terms shall be given their
commonly accepted definitions. The singular shall include the plural ahd
the plural shall include the singular. The masculine shall include the
feminine and neuter, and vice-versa. The term "shall" means mandatory and
the term "may means permissive. The following terms shall have the
definitions given to them:
(A) Tobacco or Tobacco Products. "Tobacco" or "Tobacco products"
shall mean any substance or item containing tobacco leaf, including but not
limited to, cigarettes; cigars; pipe tobacco; snuff, fine cut or other chewing
tobacco, cheroots, stogies; perique; granulated, plug cut, crimp cut, ready-
rubbed, and other smoking tobacco; snuff flowers; cavendish; short plugs
and twist tobacco; dipping tobaccos; 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.
(B) Tobacco Related Devices. "Tobacco related devices" shall mean any
tobacco product as well as a pipe, rolling papers, or other device used in a
manner which enables the chewing, sniffing, or smoking of tobacco or
tobacco products.
(C) Self-Service Merchandising. "Self Service Merchandising" shall mean
open displays of tobacco, tobacco products, or tobacco related devices in
any manner where any person shall have access to the tobacco, tobacco
products, 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, tobacco product,
or tobacco related device between the customer and the licensee or
employee. Self-service merchandising shall not include vending machines.
(D) Vending Machine. "Vending Machine" shall mean any mechanical,
electric or electronic, or other type of device which dispenses tobacco,
tobacco products, 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 product, or tobacco related
device.
(E) Individual Packaged. "Individually packaged" shall mean the practice
of selling any tobacco or tobacco product wrapped individually for sale.
Individually wrapped tobacco and tobacco 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 section shall not be considered individually
packaged.
(F) Loosies. "Loosies" shall mean the common term used to refer t a single
or individually packaged cigarettes.
(G) Minor. "Minor" shall mean any natural person who has not yet reached
the age of eighteen (18) years.
(H) Retail Establishment. "Retail Establishment" shall mean any place of
business where tobacco, tobacco products, 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.
(I) Moveable Place of Business "Movable Place of Business" shall refer to
any form of business operated out 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.
(J) Sale. A "sale" shall mean any transfer of goods for money, trade, barter,
or other consideration.
(K) Compliance Checks. "Compliance Checks" shall mean the system the
City uses to investigate and ensure that those authorized to sell tobacco,
tobacco products, and tobacco related devices are following and complying
with the requirements of this ordinance. Compliance checks shall involve
the use of minors as authorized by this ordinance. Compliance checks shall
also mean the use of minors who attempt to purchase tobacco, tobacco
products, 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, tobacco products, and tobacco related devices.
5.302(3)
LICENSE REQUIRED. No person shall sell or offer to sell any tobacco,
tobacco products, or tobacco related devices without first having obtained
a license to do so from the City.
(A) Application, An application for a license to sell tobacco, tobacco
products, 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 License Clerk shall forward the application to the City
Council for actions at its next regularly scheduled meeting. If the 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.
(B) Action. The City Council may either approve or deny the license, or it
may delay action for such reasonable period of time as necessary to
complete any investigation of the application or the applicant it deems
necessary. The clerk shall refer the completed application to the Police
Department for a background and record check prior to formal review by
the City Council. If the City Council shall approve the license, the License
Clerk shall issue the license to the applicant. If the City Council denies the
license, notice of the denial shall be given to the applicant along with notice
of the applicant's right to appeal the Council's decision.
(C) Term. The term of each license shall follow the calendar year with an
expiration date of December 31 of each year and are not pro-rated.
(D) Revocation or Suspension. Any license issued under this ordinance
may be revoked or suspended as provided in the Violations and Penalties
section of this ordinance.
(E) Transfers. All licenses issued under this ordinance shall be valid only on
the premises for which the license was issued and only for the person to
whom the license was issued. Change of location or applicant will be
required to be treated as a new application.
(F) 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 ordinance.
(G) Display. All licenses shall be posted and displayed in plain view of the
general public on the licensed premises.
(H) Renewals. The renewal of a license issued under this section shall be
handled in the same manner as the original application. The request for
renewal shall be made at least sixty days but no more than ninety days
before the expiration of the current license. The issuance of a license issued
under this ordinance 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.
5.302(4)
FEES. No license shall be issued under this ordinance until the appropriate
license fee shall be paid in full.
5.302(5)
BASIS FOR DENIAL OF LICENSE The following shall be grounds for
denying the issuance or renewal of a license under this ordinance; 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. 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;
(A) The applicant is under the age of 18 years.
(B) The applicant or any employee thereof 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 products, or tobacco
related devices.
(C) The applicant has had a license to sell tobacco, tobacco products, or
tobacco related devices revoked within the preceding twelve months of the
date of 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 such a license.
5.302(6)
PROHIBITED SALES It shall be a violation of this ordinance for any
persons, employee or responsible party to sell or offer to sell any tobacco,
tobacco product, or tobacco related device:
(A) To any person under the age of eighteen (18) years.
(B) By means of any type of vending machine.
(C) 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 premise
in order to receive the tobacco, tobacco product, or tobacco related device
and whereby there is not a physical exchange of the tobacco, tobacco
product, or tobacco related device between the licensee or the licensee's
employee, and the customer.
(D) By means ofloosies.
(E) Containing opium, morphine, jimson weed, bella donna, strychnos,
cocaine, marijuana, or other type of deleterious, hallucinogenic, or toxic or
controlled substance except nicotine and other substances found naturally
in tobacco or added as part of an otherwise lawful manufacturing process.
(F) By any other means, to any other person, or in any other manner or
form prohibited by Federal, State, or other local law, ordinance provision,
or other regulation.
5.302(7)
VENDING MACHINES PROHIBITION It shall be unlawful for any
person licensed under this ordinance to allow the sale of tobacco, tobacco
products, or tobacco related devices by the means of a vending machine.
5.302(8)
SELF-SERVICE SALES. It shall be unlawful for a licensee under this
ordinance to allow the sale of tobacco, tobacco products, or tobacco
related devices by any means whereby the customer may have access to
such 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, tobacco product, or the tobacco related device between the
licensee and his or her clerk and the customer. All tobacco, tobacco
products, 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. Any
retailer selling tobacco, tobacco products, or tobacco related devices at the
time this ordinance is adopted shall comply with this section before a new
license is issued for the next license year.
5.302(9)
RESPONSIBILITY. All licensees under this ordinance shall be
responsible for the actions of their employees in regard to the sale of
tobacco, tobacco products, or tobacco related devices on the licensed
premises, and the sale of such an item by an employee shall be considered a
sale by the license holder. It shall be the license holders responsibility to
provide training to any employee conducting tobacco sales and/or sales of
tobacco related products and devices and to document proof of such
training to be provided upon request by any enforcing agent of the City.
5.302( 0)
COMPLIANCE CHECKS AND INSPECTIONS. All licensed premises
shall be open to inspection by the City Police or other authorized City
Official during regular business hours. From time to time, but at least one
per year, the City shall conduct compliance checks by engaging, with the
written consent of their parents and guardians, minors over the age of
fifteen (15) years but less than eighteen (18) years, to enter into the
licensed premise to attempt to purchase tobacco, tobacco products, or
tobacco related devices. Minors used for the purpose of compliance checks
shall be supervised by City designated law enforcement officers or other
designated City personnel. Minors used for the purpose of compliance
checks shall not be guilty of unlawful possession of tobacco, tobacco
products, or tobacco related devices when such items are 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
minors age asked by the licensee or his or her employee and shall produce
any identification for which he or she is asked. Nothing in this section shall
prohibit compliance checks authorized by State or Federal laws for
s.302( 2)
educational, research, or training purposes, or required for the enforcement
of a particular State or Federal law.
OTHER ILLEGAL ACTS Unless otherwise provided, the following acts
shall be a violation of this ordinance.
A. Illegal Sales It shall be a violation of this ordinance for any person to
sell or otherwise provide any tobacco, tobacco product, or tobacco related
device to any minor.
B. Illegal Possession It shall be a violation of this ordinance for any minor
to have in his or her possession any tobacco, tobacco product, or tobacco
related device. This subdivision shall not apply to minors lawfully involved
in a compliance check on behalf of the City.
C. Illegal Use It shall be a violation of this ordinance for any minor to
smoke, chew, sniff, or otherwise use any tobacco, tobacco product, or
tobacco related device.
D. Illegal Procurement It shall be a violation of this ordinance for any
minor to purchase or attempt to purchase or otherwise obtain any tobacco,
tobacco product, or tobacco related device, and it shall be a violation of
this ordinance for any person to purchase or otherwise obtain such items
on behalf of a minor. It shall also be a violation of this ordinance for any
person to sell or otherwise provide any tobacco, tobacco product, or
tobacco related device to any minor, and 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, tobacco product, or tobacco related
device. This subdivision shall not apply to minors lawfully involved in a
compliance check on behalf of the City.
E. Use of False Identification It shall be a violation of this ordinance 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.
VIOLATIONS. In addition to any fine or other penalty, whether civil or
criminal, violation of this ordinance by a licensee under this ordinance shall
be grounds for the suspension or revocation of the license.
A. 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.
B. Hearings. If a person accused of violating this ordinance so requests, a
hearing shall be scheduled, the time and place of which shall be published
and provided to the accused violator.
C. Hearing Officer. The City Council shall serve as the hearing officer.
D. Decision. If the hearing officer determines that a violation of this
ordinance did occur, that decision, along with the hearing officers reason
for finding a violation and the penalty to be imposed under the Penalty
section of this ordinance, 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,
such findings shall be recorded and a copy provided to the acquitted
accused violator. Likewise, if the hearing officer finds that no violation
occurred or finds grounds for not imposing any penalty, such findings shall
be recorded and a copy provided to the acquitted accused violator.
E. Appeals. Appeals of any decision made by the hearing officer shall be
filed in the district court for the city in which the alleged violation
occurred.
F. Misdemeanor Prosecution. Nothing in this section shall prohibit the City
from seeking prosecution as a misdemeanor for any alleged violation of this
ordinance. If the City elects to seek misdemeanor prosecution, no
administrative penalty shall be imposed.
G. Continued Violation. Each violation, and every day in which a violation
occurs or continues, shall constitute a separate offense.
5.302(13) PENALTIES.
A. Licensees. Any licensee found to have violated this ordinance, or whose
employee shall have violated this ordinance, shall be charged an
administrative fine of $75.00 for a first violation of this ordinance; $200.00
for a second offense at the same licensed premises within a twenty-four
(24) month period; and $250.00 for a third or subsequent offense at the
same location within a twenty-four (24) month period. In addition, after the
third offense, the license shall be suspended for not less than seven (7)
days.
B. Other Individuals. Other individuals, other than minors regulated by
Section C of this subsection, found to be in violation of this ordinance shall
be charged an administrative fee of $50.00.
C. Minors. Minors found in unlawful possession of, or who unlawfully
purchase or attempt to purchase, tobacco, tobacco products, or tobacco
related devices, shall be required to attend a diversion or educational
program.
D. Misdemeanor. Nothing in this section shall prohibit the City from
seeking prosecution as a misdemeanor for any violation of this ordinance.
5.302(14)
EXCEPTIONS AND DEFENSES. Nothing in this ordinance shall
prevent the providing of tobacco, tobacco products, 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
ordinance for a person to have reasonably relied on proof of age as
described by State law.
5.302(15)
SEVERABILITY AND SAVINGS CLAUSE. If any section or portion
of this ordinance shall be found unconstitutional or otherwise invalid or
unenforceable by a court of competent jurisdiction, that finding shall not
serve as an invalidation or effect the validity and enforceability of any other
section or provision of this ordinance.
First Reading:
Second Reading:
Roll call:
April 26, 1998
May 11, 1998
All ayes
Offered by:
Seconded by:
Roll call:
Szurek
Peterson
All ayes