§ 6.23 TOBACCO.
   Subd. 1.   Definitions.
      A.   The term "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 section. "Compliance checks" shall involve the use of minors as authorized by this section. "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.
      B.   The term "individually packaged" means 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.
      C.   The term "loosies" means the common term used to refer to a single or individually-packaged cigarette.
      D.   The term "minor" means any natural person who has not yet reached the age of 18 years.
      E.   The term "moveable place of business" refers to 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.
      F.   The term "possession" shall mean the care, custody, dominion and control over any tobacco, tobacco product or tobacco-related device.
      G.   The term "retail establishment" means 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.
      H.   The term "sale" means any transfer of goods for money, trade, barter or other consideration.
      I.   The term "self-service merchandising" means 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.
      J.   The terms “tobacco” or “tobacco products” mean cigarettes and 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, including, but not limited to, cigars; little cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flour; cavendish; plug and twist tobacco; fine-cut and other chewing tobacco; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco, and other kinds and forms of tobacco. Tobacco products exclude 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. These definitions are intended to mirror the definitions set forth in M.S. § 297F.01, subd. 19 and M.S. § 609.685, subd. 1, as amended from time to time.
      K.   The term "tobacco-related devices" means any tobacco product as well as a pipe, rolling papers or other device intentionally designed or intended to be used in a manner which enables the chewing, sniffing or smoking of tobacco or tobacco products.
      L.   The term "vending machine" means 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.
   Subd. 2.   License. It is unlawful for any person to sell or offer to sell any tobacco, tobacco products or tobacco-related device without first having obtained a license to do so from the city.
      A.   Application and Term. An application for a license to sell tobacco, tobacco products or tobacco-related devices shall be made on a form provided by the city. All licenses issued under this section shall be valid for one calendar year from the date of issue.
      B.   Revocation and Suspension. Any license issued under this section may be revoked or suspended as provided in the violations and penalties section of this section.
      C.   Moveable Place of Business. Separate licenses shall be issued for the sale of tobacco at each fixed place of business and no license shall be issued for a movable place of business.
      D.   Display. All licenses shall be posted and displayed in plain view of the general public on the licensed premises.
      E.   Fees. No license shall be issued under this section until the appropriate license fee shall be paid in full. The fee for a license shall be set forth in the fee schedule adopted and approved by the City Council.
   Subd. 3.   Prohibited Sales. It shall be a violation of this section for any person to sell or offer to sell any tobacco, tobacco product or tobacco-related device:
      A.   To any person under the age of 18 years;
      B.   By means of any type of vending machine, except as may otherwise be provided in this section;
      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's employer and the customer;
      D.   By means of "loosies", as defined in Subd. 1 of this section;
      E.   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; and
      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.
   Subd. 4.   Illegal Acts. Unless otherwise provided, the following acts shall be in violation of this section.
      A.   Illegal Sales. It shall be a violation of this section 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 section 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.
      C.   Illegal Use. It shall be a violation of this section 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 section 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 section for any person to purchase or otherwise obtain such 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, tobacco product or tobacco-related device. This subdivision shall not apply to minors lawfully involved in a compliance check.
      E.   Use of False Identification. It shall be a violation of this section 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.
      F.   Vending Machines. It shall be unlawful for any person licensed under this section to allow the sale of tobacco, tobacco products or tobacco-related devices by the means of a vending machine unless minors are at all times prohibited from entering the licensed establishment.
      G.   Self Service Sales. It shall be unlawful for a licensee under this section 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 or 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 section is adopted shall comply with this section by 1-1-1998.
      H.   Exemption. Subd. 4.G. above shall not apply to retail stores which derive at least 90% of their revenue from tobacco and tobacco-related products and which cannot be entered at any time by persons younger than 18 years of age.
   Subd. 5.   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 once per year, the city shall conduct compliance checks by engaging, with the written consent of their parents or guardians, minors over the age of 15 years, but less than 18 years, to enter the licensed premise to attempt to purchase tobacco, tobacco products or tobacco-related devices. Minors used for 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 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.
   Subd. 6.   Violations and Penalties.
      A.   Criminal Penalties.
         1.   Upon discovery of a suspected violation, the violator shall be issued a citation by the city police and given notice of his or her right to be heard on the accusation. Each violation, and every day in which a violation occurs or continues, shall constitute a separate offense. Any person found to be in violation of this section shall be guilty of a misdemeanor and shall be subject to the maximum penalty authorized by state law for a misdemeanor.
         2.   As an alternative to a misdemeanor prosecution, the city may offer the accused violator a chance to pay an administrative fine as provided in the fine schedule adopted and amended from time to time by the Council. If the accused violator accepts the administrative option, he or she may pay the fine to the city's Deputy Clerk or he or she may, within ten days of the notice, request an administrative hearing before the Council or authorized hearing officer designated by the Council. If, after the hearing, the person is found to be in violation of this section, he or she shall be ordered to pay the fine. If a violator elects to pay the fine, or if he or she is acquitted of the violation by the hearing officer, he or she shall not be subject to misdemeanor prosecution for violation of the section. If the violator fails to pay the fine within 90 days following the hearing, or 90 days following the last day to request a hearing when a hearing has not been requested, the city may vacate the civil action and proceed with the misdemeanor prosecution. At any time, the accused violator may abandon his or her request to pursue the administrative penalty and elect to have his or her case heard in court under the misdemeanor prosecution. The city shall also have the right to refuse to offer the administrative penalty and instead proceed directly with the misdemeanor prosecution for a particular offense. If the accused violator accepts the administrative option, no administrative fine shall be imposed pursuant to Subd. 6.C. of this section.
         3.   In addition to any fine or other penalty, whether administrative, civil or criminal, violation of this section by a licensee under this section shall be grounds for the suspension or revocation of the license.
      B.   License Revocation, Suspension and Administrative Fine. The Council may revoke or suspend for three days any license issued under this section and shall impose a mandatory administrative fine of at least $75, or more, as provided in the fine schedule adopted and amended from time to time by the Council, upon a finding that a licensee or its employee violated this section. In the event the city finds that a licensee or its employee has violated this section twice within a 24-month period, the city may revoke or suspend for a period of six months and shall impose a mandatory administrative fine of at least $200, or more, as provided in the fine schedule adopted and amended from time to time by the Council. A third or subsequent offense at the same location within a 24-month period by a licensee or employee shall subject the licensee to a mandatory seven-day suspension of the licensee's authority to sell tobacco at that location, shall constitute a basis for a permanent revocation of the licensee's authority to sell tobacco at that location, and shall subject the violator to a mandatory administrative fine of at least $250, or more, as provided in the fine schedule adopted and amended from time to time by the Council. No suspension or revocation shall take effect until the licensee has received notice, served personally or by certified mail, of the alleged violation and has been afforded an opportunity for a hearing pursuant to § 2.06 of this code. A decision of the Council that a violation has occurred must be in writing. Unless the licensee requests review of the order imposing an administrative fine, the penalty is due and payable on the thirty-first day after the order was received. All administrative fines shall be payable to the city.
      C.   Administrative Fine for Other Individuals. In addition to any fine or other penalty, whether administrative or criminal, other individuals, other than minors regulated by Subd. 6.D. below, found to be in violation of this section shall be charged an administrative fine of $50. No penalty may be imposed until the individual has received notice, served personally or by certified mail, of the alleged violation and an opportunity for a hearing before a person authorized by the licensing authority to conduct a hearing. Any decision that a violation has occurred must be in writing.
      D.   Minors. Minors found in unlawful possession of, or who unlawfully purchase or attempt to purchase, tobacco, tobacco products or tobacco-related devices, shall be charged an administrative fine of $50. Any second or subsequent violation of this section by a minor shall result in the imposition of an administrative fine of $100. In addition to any fine or other penalty, whether administrative or criminal, any minor found to be in violation of this section shall be provided with notification of any tobacco-related programs, courses or classes offered within the community which are designed to provide education on the harmful effects of the use of tobacco or tobacco products and/or instruction on smoking cessation.
(Ord. 10, Third Series, passed 12-3-1996; Ord. 23, Third Series, passed 11-4-1997; Ord. 11, Fourth Series, passed 10-19-2010)