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HomeMy WebLinkAbout1998-12-02 PACKET 04.J.REQUEST OF CITY COUNCIL ACTION COUNCIL AGENDA MEETING ITE�VI � DATE 12/2198 L� PRE BY Public Safety Jim Kinsey ORIGINATING DEPARTMEfVT STAFF AUTHOR + + � � s x � w x n a c ,t � x � a s � a a f„t + � � + + + � e a � t � e � a x +: r + w > + � x + COUNClL ACTION REQUEST Pass a motion to amend Ordinance #654 - Cigarettes, Tobacco and Tobacco Related Devices of the City of Cottage Grove. STAFF RECOMMENDATION Modify Ordinance #654 to reflect the changes as set for in alternative #3 and as printed on the included modified ordinance. SUPPORTING DOCUMENTS � MEMO/LETTER: Acting Director of Public Safety James E. Kinsey dated 11/23/98 ❑ RESOLUTION: � ORDINANCE: ❑ ENGINEERING RECOMMENDATION: ❑ LEGAL RECOMMENDATION: ❑ OTHER: ADMINISTRATORS COMMENTS � / � �' �.— City Administratcr Date ><..��>�w.><�><«..<���.����<...�«���,����.����<� COUNCI� ACTION TAKEN: ❑ APPROVED ❑ DENIED ❑ dTHER . � To: Honorable Mayor Jack Denzer and members of t �i Council From: Acting Director of Pubiic Safety James E. Kinsey Date: November 23, 1998 Re: PENALTIES ASSOCIATED WITH TOBACCO ORDINANCE #654 INTRODUCTION We are currently faced with a variety of problems within the penalty section of our Tobacco Ordinance #654 and changes are necessary to be consistent with the County Attomey's charging process and the city's 1999 fee schedule. BACKGROUND(DISCUSSION In early 1998, Council passed Cottage Grove Ordinance #654 amending Chapter 6A, Cigarettes, Tobacco and Tobacco Related Devices of the City Code. Within this ordinance, specific penalties were enacted. While updating the city's 1998 fee schedule for 1999, a discrepancy was found in the penalty section for juveniles, fiound i� possession of or who has unlawfully purchased or attempted to purchase tobacco products. Additionaily, the County Attorney enacted a new process targeted at the status offenders shortly after our City put in place our Administrative ordinance ticket. The County Attorney's process provides that officers within Washington County may in lieu of completing the formal petition process for these status offenders, issue a"Juvenile Petty Citation". This citation is then processed through the juvenile division of the County Attorney's o�ce and the juvenile is then directed to a channei which is determined to be the most appropriate for the individual. This in the case of a tobacco violation may be to some form of diversion which could include educational classes. These educational classes do meet the requirements set out by the state sYatutes relating to juvenile tobacco violators. �. .; . • Page 1 Secondly, the County Attorney will not accept any of our violators into the judiciai proceedings if they have first been given an Administrative ordinance ticket and refused to pay the assigned penalty. The reasoning behind this decision is that these juveniles who are status offenders have not been afforded due process of law, a constitutionally protected right. ALTERNATIVES 1) Leave the ordinance in tact without modification (no resolve of conflict penaities or prosecution issues). 2) Modify the ordinance by adjusting the penalties to be consistent with the approved 1999 fee schedule (no resoive of prosecution issues}. 3) Modify the ordinance penalty section to reflect that penalties for licensees and sellers be penalized in accordance with the city's approved enforce fee schedule and modify the section dealing with juvenile offenders to read: Minors found in uniawfui possession of or who unlawfully purchase or attempt to purchase tobacco, tobacco products or tobacco related devices, shaii be found in violation of this ordinance and subject to appropriate penalties, which may include Juvenile Petty Citations and/or tobacco related education classes, diversion programs, community service. RECOMMENDATION Modify Ordinance #654 to reflect the changes as set forth in alternative #3 and as printed on the included modified ordinance. attch. JEK/cce • Page 2 � ORDINANCE NO. 654 AN ORDINANCE FOR THE CITY OF COTTAGE GROVE, MINNESOTA AMENDING CHAPTER 6A, CIGARETTES, TOBACCO AND TOBACCO REI.ATED DEVICES OFTHE CITY CODE An ordinance relating to the sale, possession, and use of tobacco, tobacco products and tobacco related devices in the city and to reduce the illega� sale, possession, and use of such items to and by minors. The City Council of the City of Cottage Grove, Washington County, Minnesota does ordain as follows: SECTION 1. AMENDMENT. °The Code of the City of Cottage Grove, County of Washington, State of Minnesota° shall be amended by repealing Chapter 6A, Sections 6A-1, 6A-2 and 6A-3 in its entirety. SECTION 2. AMENDMENT. °The Code of the City of Cottage Grove, County of Washington, State of Minnesota" shall be amended by adding Sections 6A-1 through 6A-15 to read as follows: Sec. 6A-1. Puroose. 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 both State and Federal Laws; and because studies, which the city hereby accepts and adopts, have shown that most smokers begin smoking before they reach the age of 18 years and that those persons who reach the age of 18 years without having started srrtoking are significantly less likely !o hegin smoking; and because smoking has shawn to be the cause of several serious health problems which subsequently piace a financia� burden on ali levels 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 pubiic policy of the State of Minnesota in regard to preventing young people from starting to smoke as stated in Minn. Stat. 144.391. Sec. 6A-2. Definitions and InterDretations. Except as may otherwise be provided or clearly implied by conte�, all �- terms shall be given their commonly accepted definitions. The singular shall � inciude the pl�rai and the piural shall inciude the singular. The masculine shali inciude 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 fiowers; 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. (b). Tobacco Related Devices. °Tobacco related devices" shati mean any tobacco product as well as a pipe, rolling papers, or other device intentionaily designed or intended to be used in a manner which enables the chewing, sniffing, or smoking of tobacco or tobacco products. (c). Self-Service Merchandisina. "Seif-Service Merchandising" shali mean open dispiays of tobacco, tobacco products, or tobacco related devices in a 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 empioyee. The assistance or intervention shall entail the actual physicai 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). Vendinq Machine. "Vending Machine" shaii mean any mechanical, electric, 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 payrrent rlirectly dnto the machine bt the person �eeking to purchase the tobacco, tobacco product, or tobacco re(ated device. (e). Individuallv packaaed. "Individually packaged°` shall mean the practice of selling any tobacco or tobacco product wrapped individually for sale. Individuafly wrapped tobacco and tobacco products shali include, but not be limited to, singie cigarette packs, singie bags or cans of loose tobacco in any form, and single cans ar packaging of snuff or chewing tobacco. Cartons or other packaging containing more than a single pack or other container as described in this subdivision shali not be considered individually packaged. (fl. Loosies. °'Loosies" shaii mean the common term used to refer to a singie or individually packaged cigarette. � (g). Minor. "Minor' shall mean any natural person who has not yet � reached eighteen (18) years. (h). Retaii Establishment. "Retail Estabiishment" shali mean any place of business where tobacco, tobacco products, or tobacco related devices are available to the general public. Retaii estabiishments sha�l include, but not be limited to, grocery stores, convenience stores, and restaurants. (i}. Moveable �lace of Business. "Moveable Place of Business" shail refer to any form of business operated out of a truck, van, automobile, or other type of vehicie or transportable shelter and not a fixed address store front or other permanent type of structure authori2ed for sales transactions. (j). Sale. A"sale" shall mean any transfer of goods for money, trade, barter, or other consideration. (k). Comaliance 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 foliowing and complying with the requirements of this ordinance. Compliance checks shail involve the use of minors as authorized by this ordinance. Compliance Checks shail 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. Sec. 6A-3. License. No person shalB seil or offer to sel� any tobacco, tobacco products, or tobacco related device without first having obtained a license to do so from the city. (a). An appiication for a license to seii tobacco, tobacco products, �r tobacco related devices shall be rnade on a form provided by the ci4y. The appiication shafl contain the full name of the appiicant, the appficanYs residential and business addresses and telephone numbers, the name of the business for v✓hich the license is being sought, and any additionai information the city deems necessary. Upon receipt of a completed appiication, the city clerk shail fonvard the application to the to the Director of Public Safety for an investigation of the application and applicant(s) within a reasonable period of time, and the background check shouid be completed within ten days. The application and investigation results would then be forwarded to council for action at a regulariy scheduled council meeting. If the Gerk shaii determine the application is incompiete, he or she shall retum the application to the applicant with notice of the information necessary to make the application complete. (b}. Acfion. The councii may either approve or deny the license, or it � may delay action for such reasonable period of time as necessary fo complete any additional investigation of the application or the appficant(s) it deems � necessary. The city clerk shall forward the application to the to the Director of Pubiic Safety within a reasonable period of time and the investigation should be compieted within ten days. The appiication and investigation results would then be forwarded to council for action at a regularly scheduled council meeting. If the council shall approve 4he license, the clerk shall issue the license, the clerk shall issue the license to the applicant. If the council denies the license, notice of the denial shaii be given to the applicant along with notice of the app►icanYs right to appeal the council's decision. (c). Term. All licenses issued under this ordinance wili be valid from the date of issuance and expire on December 31�`. (d). 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. (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. No transfer of any license to another location or person shall be valid without the prior approval of the council. (fl. Moveable Place of Business, No license shall be issued to a moveable piace of business. Only fixed location businesses shaii be eligible to be licensed under this ordinance. (g). Displav. All licenses shail be posted and displayed in plain public view of the general public on the licensed prernise. (h). Renewals. The renewal of a license issued under this section shaii be handie� in 4Fi� ��rrrie rv�an�ier as 4he originai appiication. The reque§t for a renewaf shail be made at least thirty days but no more than si�cty days before #he expiration of the current license. The issuance of a license issued under this ordinance shaii be considered a privilege and not an absolute right of the applicant and shail not entitle the holder to an automatic renewal of the license. Sec. SA-4 Fees. No license shall be issued under this ordinance until the appropriate licens hall be paid in full. The fee for a license under this ordinance shat{ b $250.00. Sec. 6A-5 Basis for Denial af 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 nat mean that the city must deny the license. If a Iicense is mistakenly issued or renswsd 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 appiicant has been convicted within the past five years of a Federai, State, or local law, ordinance provision, or other regulation relating to tobacco or tobacco products, or tobacco related devices. (c}. The appiicant 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 faise or misieading information. (e). The applicant is prohibited by Federal, State, or other locai law, ordinance, or other regulation, from holding such a license. Sec. 6A-6 Prohibited Sales. It shall be a violation of this ordinance for any person to offer to sell any tobacco, tobacco product or tobacco related device: (a). To a�y person under the age of eighteen (18) years. (b). By means of any type of vending machine, except as may otherwise be provided in this ordinance. (See Section 700 Vending Machines) (c). By means of seif-service methods whereby fhe customer does not need to make a verbai or written request to an empioyee of the licensed premise in order to receive the tobacco, tobacco product, or tobacco related device and whereby there is not a physicaf exchange of the tobacco, tobacco product, or tobacco related device between the licensee or the licensee's employee, and the customer. (See Section 800 Self Service) (d). By means of loosies as defined in Section 200 of this ordinance. (e). Containing opium, morphine, jimson weed, bella donna, strychnos, cocaine, marijuana, or other deleterious, hallucinogenic, toxic, or controlled substances except nicotine and other substa�ces found naturally in tobacco or added as part of an otherwise lawfui manufacturing process. (�. By any other means, 4o any ather person, or in any ather manner or form prohibited by Federal, State, or other locai law, ordinance provision, or � other regulation. Sec. 6A-7. Vendina Machines. it sha�l be unlawful for any person licensed under this ordinance to aliow the sale of tobacco, tobacco products, or tobacco related devices by the means of a ve�ding machine unless minors are at all times prohibited from entering the licensed establishment. Sec. 6A-8. Self-Service Sales It shall be uniawfui 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 or his or her cierk and the customer. All tobacco, tobacco products, and tobacco related devices shall either be stored behind a counter or ather 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 sei�ing tobacco, tobacco products, or tobacco related devices at the time this ordinance is adopted shail compiy with this Section within 30 days. The seif service restriction described in this section shali not apply to retail estabiishments which can not be entered at any time by minors nor shaii these restrictions apply to the sale of expensive cigars displayed in a humidor by esfablishments which can not be entered at any time by minors. Sec. 6A.-9. Responsibilitv. All licensees under this ordinance shall be responsible for the actions of their empioyees 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 hoider. Nothing in this section shail be construed as prohibiting the City from a�so subjecting the clerk to whatever penaities are appropriate under this Ordinance, State or Federal law, or other applicable law or regulation. Sec. 6A-10. Compliance Checks and Inspections. All licensed premises shall be open 4a i�sp��ib� by 4f�e city police or ather authorized city official during regular business hours. From tirrre to time, but at least twice per year, the Police Department shall conduct compiiance checks engaging, with the written consent of their parents or guardians, minors over the age of fifteen (15) but less than eighteen {16) years, to enter 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 !aw enforcement o�cers. Minors used for compliance checks shall not be guilty of unlawEui tobacco, tobacco products, or tobacco related devices when such items are obtained as part of the compliance check. No minor used in compiiance cheGcs shall attempt to use false identification misrepresenting the minor's age, and ail minors lawfully engaging 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 l enforcement of a particular State or Federai law. However, ail such compliance checks must be coordinated through the City Police Department. Sec. 6A-11. Other Illeoal Acts. Unless othen�vise provided, the foliowing acts shall be a violation of this ordinance. (a). Illeaal 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). illeoal Possession. it shaii 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 shal� not apply to minors lawfully involved in a compliance check. (c). ilieqal Use. It shall be a violation of this ordinance for any minor to smoke, chew, sniff, or othervvise use any tobacco, tobacco product or tobacco related device. (d). IileQai Procurement. It shaii 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 shaii be a violation of this ordinance for any person to coerce or attempt to coerce a minor to iilegaily purchase or otherwise obtain or use any tobacco, tobacco product, or tobacco related device. This subdivision shal� not apply to minors lawfully invoived in a compliance check. (e). Use of Faise identification. It shali be a violation of this ordinance for any minor to attempt to disguise his or her tr�e age by the use of � falss form of identification, whether the identificatior� is that of annther persan or one on which the age has been modified or tampered with to represent an age older than the actual age of ths person. Sec. 6A-12 Violations. (a}. Notice. Upon discovery of a suspected violation, the alleged violator shail be issued, either personally or by mail, a citation that sets farth the alleged violation and which shali inform the al(eged violator of his or her right to be heard on the accusation. (b). Heari If a person accused of violating this ordinance so requests, a hearing shall be scheduled, the time and piace of which shail be ( published and provided to the accused violator. 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. (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 aileged violation of this ordinance. (g). Continued Violation. Each violation, and every day in which a violatio� occurs or continues, shall constitute a separate offense. Sec. 6A-13. Penalties. (a). Licensees. Any licensee found to have violated this ordinance or whose employee shall have violated this ordinance, shall be �—aa � . issued an Administrative Ordinance cita€ion and• fined an araiount esfablished; by Cfluncil resolution from time to time. In addition, after the third offense, the license shall be suspended for not less than seven days. (b). Other Individuals. Other individuals, other than minors regulated by subdivision 3 of this Subsection, found to be in violation of this ordinance shall . issued an Administrative' Ordinance cita4ion and,fined,an'amou�f;established, by Cauncil resolution frprn time time,. (c). Minors. fvlinors found in unlawful possession of, or who unlawfully purchase or attempt to purchase tobacco, tobacco products, or tobacco related devices, shali be found in violation of this ordinance and subject to appropriate penalties established by Council resolution from time fo time, which may include juvenile petty citations and/o,r tobacco related education classes, diversion programs or community service. aad�;— ;�;,;�;:°��^:n��;;,�s—ca�°—��2-� €t�� (d). Misdemeanor. Nothing in this Section shall prohibit the City from seeking prosecution as a misdemeanor for any violation of this ordinance. Sec. 6A-14. Restriction on Age af Clerks. It sha{I be illegal for a retaii estabiishment to cause or permit a minor to seii tobacco, tobacco products or tobacco related devices unless there is an adult employee (18 years or older) on duty and present within the establishment. Sec. 6A-15. Signage. Anyone holding a tobacco license under the provisions of this ordinance, shall post and display in piain view of the general pubiic on the licensed premises a sign indicating that it is illegal to sell tobacco, tobacco products, and tobacco related devices to anyone under the age of eighteen (18) years and that the possession and use of such items by minor is aiso illegal under both State law and local ordinance. Said signs shall be of a the approved by City staff and issued to a retail establishment at the time that a license is obtained. The cost of said sign shall be included within the licensing fee. Sec. 6A-16. 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. Section 6A-17 Severability and Savings Clause. if any section or portion of this ordinance shall be found unconstitutionai or othenvise 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. SECTION 3 — EFFECTNE DATE. This ordinance shail be in full force and effect from and after its passage and publication, according to Iaw. John D. Denzer, Mayor Attest: Caron M. Stransky, City Clerk Published in the Washington County Bulleting on March 11, 1998.