RETAIL TOBACCO SALES
Adopted on August 31, 1999 by the Hennepin County Board of Commissioners.
Amended on November 1, 2016 by the Hennepin County Board of Commissioners.
An ordinance relating to the sale, possession and use of tobacco, tobacco-related devices, electronic delivery devices, and nicotine and lobelia products 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
Because Hennepin County recognizes that many persons under the age of 18 years purchase or otherwise obtain, possess and use tobacco, tobacco-related devices, electronic delivery devices, and nicotine and lobelia products, 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-related devices, electronic delivery devices, and nicotine and lobelia products and to further the official public policy of the State of Minnesota in regard to preventing young people from starting to smoke.
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:
"Tobacco" shall be defined as in Minnesota Statutes, section 609.685, Subdivision 1.
"Tobacco-related devices" shall be defined as in Minnesota Statutes, section 609.685, Subdivision 1.
“Electronic delivery devices” shall be defined as in Minnesota Statutes, section 609.685, Subdivision 1.
“Nicotine and lobelia products” shall mean those as described in Minnesota Statutes, 609.6855.
“Tobacco Products” shall include tobacco, tobacco-related devices, electronic delivery devices, and nicotine and lobelia products.
"Self-Service Merchandising" shall mean open displays of Tobacco Products in any manner where any person shall have access to the Tobacco Products 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 Product between the customer and the licensee or employee. Self-service merchandising shall not include vending machines.
"Vending machine" shall mean any mechanical, electrical or electronic, or other type of device which dispenses Tobacco Products upon the insertion of money, tokens, or other form of payment directly into the machine by a person seeking to purchase the Tobacco Product 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.
"Individually packaged" shall mean the practice of selling any Tobacco Product wrapped individually for sale. Individually wrapped 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.
"Loosies" shall mean the common term used to refer to a single or individually packed cigarette.
"Minor" shall mean any natural person who has not yet reached the age of eighteen (18) years.
"Retail establishment" shall mean any place of business where Tobacco Products are available for sale to the general public. Retail establishments shall include, but not to be limited to, grocery stores, convenience stores, and restaurants.
"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.
"Sale" shall mean any transfer of goods for money, trade, barter, or other consideration.
"Compliance Checks" shall mean the system the County or its designated agent uses to investigate and ensure that those authorized to sell Tobacco Products 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 Products 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 Products.
"Auditor" shall mean the Hennepin County Auditor of the Taxpayer Services Department or designee.
"County Board" shall mean the Hennepin County Board of Commissioners.
“Heath Authority” means the Hennepin County Public Health Department and its designated employees, agents, or contractors, as the Hennepin County Board may designate.
Section 3: LICENSE
It shall be illegal for anyone to sell or offer to sell Tobacco Products 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.
Each license shall be obtained from the Health Authority as established by County Board resolution from time to time pursuant to this Ordinance and Hennepin County Administrative Ordinance 1.
The County 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 denies the license, notice of denial shall be given to the applicant along with notice of the applicant's right to appeal the decision.
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.
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.
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.
All licenses shall be posted and displayed in plain view of the general public on the licensed premises.
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 must deny the license:
The applicant is under the age of eighteen (18) years.
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 Products.
The applicant has had a license to sell Tobacco Products revoked within the preceding 12 months of the date of application.
The applicant fails to provide the information required on the application or provides false or misleading information.
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 Product:
To any person under the age of eighteen (18) years.
By means of any type of vending machine.
By means of self-service sales as defined in Section 7 herein.
By means of loosies as defined in Section 2 of this ordinance.
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.
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 Products 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 Product between the licensee or his or her employee and the customer. All Tobacco Products 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 Products 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 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 Products 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 Products. 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 Products 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 Product 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 Product. 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 Products.
10.3 Illegal Use
It shall be a violation of this ordinance for any minor to smoke, chew, sniff or otherwise use any Tobacco Product.
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 Product 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 Product. 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 Products.
(2) For a licensee to cause or permit a person under age 16 to sell Tobacco Products.
Section 11: VIOLATIONS
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.
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.
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 12 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.
Appeals of any decision made by the hearing officer shall be filed in the Hennepin County District Court.
11.6 Misdemeanor Prosecution
Nothing 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
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.
Minors found in unlawful possession of, or who unlawfully purchase or attempt to purchase Tobacco Products, shall be referred to the Hennepin County Attorney's Office.
Section 13: EXCEPTIONS AND DEFENSES
Nothing in this ordinance shall prevent the providing of Tobacco Products 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 thirty (30) days mailed notice of proposed amendments to this ordinance.
Section 16: EFFECTIVE DATE
This amended ordinance shall take effect on January 1, 2017.