Ordinance 21

RETAIL TOBACCO SALES

Adopted on August 31, 1999 by the Hennepin County Board of Commissioners.

An ordinance relating to the sale, possession and use of tobacco, tobacco products, and tobacco-related devices in Hennepin County and to reduce the illegal sale, possession, and use of such items to and by minors. This ordinance is enacted pursuant to the requirements of Minnesota Statute §§461.12 to 461.18.

The Hennepin County Board of Commissioners Ordains:

Section 1: PURPOSE AND SCOPE

1.1 Purpose. Because Hennepin County 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 both State and Federal laws; and because studies1-4, which are hereby accepted and adopted, have shown that most smokers begin smoking before the age of 18 years; and 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, including cancer, heart disease, and respiratory problems, which subsequently place a financial burden on all levels of government, this ordinance is intended to regulate the sale, possession and 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 Minnesota Statute 44.391.

1.2 Scope. This ordinance is applicable in any unorganized territory of Hennepin County and in any town or home rule charter or statutory city in Hennepin County, which does not license and regulate retail tobacco sales. Retail establishments licensed by a town or a city to sell tobacco are not required to obtain a second license for the same location pursuant to this ordinance.

1 U. S. Centers for Disease Control and Prevention (1994): Preventing Tobacco Use Among Young People: A Report of the Surgeon General. Washington, D.C.: USDHHS.

2 U. S. Centers for Disease Control and Prevention. Accessibility of cigarettes to youth aged 12-17 years; United States, 1989 and 1993. MMWR Morbidity and Mortality Weekly Report. 45, 125-130.

3 Forster, J., Murray, D., Wolfson, M., Blaine, T., et al. (1998). The effects of community policies to reduce youth access to tobacco. American Journal of Public Health, 88(8), 1193-1198.

4 Lynch, B. S. & Bonnie, R. J. editors. (1994). Growing up Tobacco Free: Preventing Nicotine Addiction in Children and Youths. Washington, D. C.: Institute of Health: National Academy Press.

Section 2: DEFINITIONS AND INTERPRETATIONS

For the purpose of this ordinance the following words shall have the following meanings:

2.1 "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; shorts; plug and twist tobaccos; 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.

2.2 "Tobacco related devices" shall mean 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.

2.3 "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.

2.4 "Vending machine" shall mean any mechanical, electrical 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 a person seeking to purchase the tobacco, tobacco product, or tobacco-related device for himself, herself, or on behalf of another person. This includes vending machines equipped with manual, electric, electronic locking devices, or other devices that operate directly or through a remote control device.

2.5 "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 subdivision shall not be considered individually packed.

2.6 "Loosies" shall mean the common term used to refer to a single or individually packed cigarette.

2.7 "Minor" shall mean any natural person who has not yet reached the age of eighteen (18) years.

2.8 "Retail establishment" shall mean any place of business where tobacco, tobacco product, or tobacco-related devices are available for sale to the general public. Retail establishments shall include, but not to be limited to, grocery stores, convenience stores, and restaurants.

2.9 "Moveable Place of Business" shall refer to any form of business operated out of a truck, van, automobile, or any other type of a vehicle or transportable shelter and not a fixed address store front or other permanent type of structure authorized for sales transactions.

2.10 "Sale" shall mean any transfer of goods for money, trade, barter, or other consideration.

2.11 "Compliance Checks" shall mean the system the County or its designated agent uses to investigate and ensure that those authorized to sell tobacco, tobacco products, or 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, or tobacco-related devices.

2.12 "Auditor" shall mean the Hennepin County Auditor of the Taxpayer Services Department or designee.

2.13 "County Board" shall mean the Hennepin County Board of Commissioners.

Section 3: LICENSE

It shall be illegal for anyone to sell or offer to sell tobacco, tobacco products, or tobacco-related devices in Hennepin County without first having obtained a license to do so from the County, unless located within a town or statutory city that has retained licensing authority under Minnesota Statutes 461.12, Subdivision 1.

3.1 Application. An application for a license to sell tobacco, tobacco products, or tobacco-related devices shall be made on a form provided by the Auditor. The application shall contain the full name of the applicant, the applicant's residential and business address and telephone numbers, the name and location of the business for which the license is sought and any additional information deemed necessary. Upon receipt of a completed application, the Auditor shall forward the application to the County Administrator for action at the next regularly scheduled County Board meeting. If the Auditor shall determine that an application is incomplete, the application shall be returned to applicant with notice of the information necessary to make the application complete.

3.2 Action. The County Board may either approve or deny the license or it may delay action for such reasonable period of time as necessary to complete any background investigation of the application or the applicant it deems necessary. If the County Board approves the license, the Auditor shall issue the license to the applicant. If the County Board denies the license, notice of denial shall be given to the applicant along with notice of the applicant's right to appeal the decision.

3.3 Term. All licenses issued under this ordinance shall be valid for one calendar year from the date of issue.

3.4 Revocation or suspension. Any license issued under this ordinance may be revoked or suspended as provided in the Violations and Penalties sections of this ordinance.

3.5 Transfers. All licenses issued under this ordinance shall be valid only on the premises for which the license was issued and only for the applicant to whom the license was issued. No transfer of any license to another location or person shall be valid without the prior written approval of the County Board.

3.6 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.

3.7 Display. All licenses shall be posted and displayed in plain view of the general public on the licensed premises.

3.8 Renewals. The renewal of a license issued under this section shall be done in the same manner as the original application. A request for a renewal shall be made at least sixty (60) days but no more than ninety (90) days before the expiration of the current license. The issuance of a license under this ordinance shall be considered a privilege and not an absolute right of the applicant and shall not entitle the holder to automatic renewal of the license.

Section 4: FEES

No license shall be issued under this ordinance until the appropriate license fee shall be paid in full. The license fee will be established annually by the Hennepin County Board of Commissioners.

Section 5: BASIS FOR DENIAL OF LICENSE

The following non-inclusive reasons shall be grounds for revoking a license or 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 County Board must deny the license:

5.1 The applicant is under the age of eighteen (18) years.

5.2 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 products, or tobacco-related devices.

5.3 The applicant has had a license to sell tobacco, tobacco products, or tobacco-related devices revoked within the preceding 12 months of the date of application.

5.4 The applicant fails to provide the information required on the application or provides false or misleading information.

5.5 The applicant is prohibited by Federal, State, or other local law, ordinance, or other regulation, from holding such a license.

Section 6: PROHIBITED SALES

It shall be a violation of this ordinance for anyone to sell or offer to sell any tobacco, tobacco product, or tobacco-related devices:

6.1 To any person under the age of eighteen (18) years.

6.2 By means of any type of vending machine.

6.3 By means of self-service sales as defined in Section 7 herein.

6.4 By means of loosies as defined in Section 2 of this ordinance.

6.5 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.

6.6 By any other means, to any other person or in any other manner or form prohibited by Federal or State or local law or other Hennepin County ordinance, provision, or other regulation.

Section 7: 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 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 employee 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 locked case or other storage unit not left open and accessible to the general public. Any retailer selling tobacco, tobacco products, or tobacco-related devices shall comply with this Section within 90 days following the effective date of this ordinance. This Section does not apply to retail establishments that prohibit minors from entering the premises at all times, and derive ninety (90) percent or more of their revenues from the sale of tobacco and tobacco-related products. Any retail establishment that allows self-service sales shall provide upon request financial records that provide documentation summarizing annual sales.

Section 8: 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. Nothing in this section shall be construed as prohibiting Hennepin County from also subjecting the employee to whatever penalties are appropriate under this ordinance, State or Federal law or other applicable law or regulation.

Section 9: COMPLIANCE CHECKS AND INSPECTIONS

All licensed premises shall be open to inspection by the local law enforcement or other authorized Hennepin County officials during regular business hours. From time to time, but at least twice per year, the County or its designated agent shall conduct compliance checks by engaging, with the written consent of their parents or guardians, minors over the age of fifteen (15) years but less than eighteen (18) years, to enter the licensed premises to attempt to purchase tobacco, tobacco products, or tobacco-related devices. Minors used for the purpose of compliance checks shall be supervised by designated law enforcement or Hennepin County personnel. Minors used for compliance checks shall not be guilty of the unlawful purchase or attempted purchase, nor the unlawful possession of tobacco, tobacco products, or tobacco-related devices when such items are obtained or attempted to be obtained as part of a 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.

Section 10: OTHER ILLEGAL ACTS

Unless otherwise provided, the following acts shall be a violation of this ordinance:

10.1 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.

10.2 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 or to an employee of the license holder under the age of eighteen (18) years while stocking tobacco, tobacco products, or tobacco-related devices.

10.3 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.

10.4 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 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.

10.5 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.

10.6 Illegal Sales by Minor. It shall be a violation of this ordinance:

(1) For any person under age 16 to sell tobacco, tobacco products, or tobacco-related devices.

(2) For a licensee to cause or permit a person under age 16 to sell tobacco, tobacco products, or tobacco-related devices.

Section 11: VIOLATIONS

11.1 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.

11.2 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.

11.3 Hearing Officer. The County Administrator or designee shall serve as the hearing officer.

11.4 Decision. If the hearing officer determines that a violation of this ordinance did occur, that decision, along with the hearing officer's reasons for finding a violation and the penalty to be imposed under Section 1300 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.

11.5 Appeals. Appeals of any decision made by the hearing officer shall be filed in the Hennepin County District Court.

11.6 Misdemeanor Prosecution. Nothing in this section shall prohibit Hennepin County from seeking prosecution as a misdemeanor for any violation of this ordinance.

11.7 Continued Violations. Each violation shall constitute a separate offense. Every day in which a violation continues shall constitute a separate offense.

Section 12: PENALTIES

12.1 Licensees. Any licensee found to have violated this ordinance or whose employee shall have violated this Ordinance shall be charged an administrative fine of $200 for the first violation of this ordinance; $400 for the second offense at the same licensed premises within a twenty-four (24) month period; and $1000 for the third offense within a twenty-four (24) month period. In addition, after the third offense, the license shall be suspended for no less than seven (7) days. After the fourth offense within a twenty-four (24) month period, the license shall be revoked for one year.

12.2 Other Individuals. Other individuals, other than minors regulated by Section 12.3, found to be in violation of this ordinance shall be charged an administrative fine of $50. An administrative fine of $100 shall be charged for additional subsequent offenses within a twenty-four (24) month period.

12.3 Minors. Minors found in unlawful possession of, or who unlawfully purchase or attempt to purchase tobacco, tobacco products, or tobacco-related devices, shall be referred to the Hennepin County Attorney's "Citations for Tobacco Offense" procedure.

Misdemeanor. Nothing in this Section shall prohibit Hennepin County from seeking prosecution as a misdemeanor for any violation of this ordinance.

Section 13: 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 and in good faith relied on proof of age as described by State law.

Section 14: 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 to invalidate or otherwise effect the validity or enforceability of other sections or provisions of this ordinance.

Section 15: NOTICE

The County shall make reasonable efforts to send tobacco retailers regulated by this ordinance and the Hennepin County Community Health Department, thirty (30) days mailed notice of proposed amendments to this ordinance.

Section 16: EFFECTIVE DATE

This ordinance shall take effect October 1, 1999. Any retailer selling tobacco, tobacco products, or tobacco-related devices at the time this ordinance is adopted, and that is not licensed by a municipality in Hennepin County, shall comply with this ordinance within 60 days following the effective date of this ordinance.

This ordinance was current when published on this web site. To be certain that it has not been amended, contact the Administrative Services Division via the contact information.

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