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CITY OF NEWPORTORDINANCE 2013-2 AN ORDINANCE OF THE CITY OF NEWPORT, MINNESOTA, AMENDING THE CITY CODE OF ORDINANCES CHAPTER 7, GENERAL REGULATIONS AND OFFENSES THE CITY COUNCIL OF THE CITY OF NEWPORT, MINNESOTA, HEREBY ORDAINS THAT:

Wednesday, January 30, 2013 - 12:00am

Section 750 - Tobacco

750.01 Purpose. Because the City recognizes that many person under the age of 18 years purchase or otherwise obtain, possess, and use tobacco, tobacco products, tobacco related devices and nicotine or lobelia delivery 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 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, tobacco related devices and nicotine or lobelia delivery devices, and to further the purposes of enforcing and furthering existing laws, to protect minors against the serious effects associated with the illegal use of tobacco, tobacco products, tobacco related devices and nicotine or lobelia delivery 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 Minn.Stat. 144.391 as it may be amended from time to time

750.02 Definitions and Interpretations.

Subd. 1 Compliance Checks. "Compliance Checks" shall mean the system the City uses to investigate and ensure that those authorized to sell tobacco, tobacco products, tobacco related devices and nicotine or lobelia delivery 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, tobacco related devices or nicotine or lobelia delivery 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, tobacco related devices and nicotine or lobelia delivery devices.

Subd. 3 Indoor Area. "Indoor area" shall mean all space between a floor and a ceiling that is bounded by walls, doorways, or windows, whether open or closed, covering more than 50 percent of the combined surface area of the vertical planes constituting the perimeter of the area. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent.

Subd. 4 Loosies. "Loosies" shall mean the common term used to refer to a single or individually packaged cigarette or any other tobacco product that has been removed from its packaging and sold individually. The term "loosies" does not include individual cigars with a retail price, before any sales taxes, of more than $2.00 per cigar.

Subd. 5 Minor.

Subd. 6 Moveable Place of Business.

Subd. 7 Nicotine or Lobelia Delivery Devices. "Nicotine or Lobelia Delivery Devices" shall mean any product containing or delivering nicotine or lobelia intended for human consumption, or any part of such a product, that is not tobacco as defined in this section, not including any product that has been approved or otherwise certified for legal sale by the United States Food and Drug Administration for tobacco use cessation, harm reduction, or for other medical purposes, and is being marketed and sold solely for that approved purpose.

Subd. 8 Retail Establishment. "Retail Establishment" shall mean any place of business where tobacco, tobacco products, tobacco related devices or nicotine or lobelia delivery devices.

are available for sale to the general public. Retail establishments shall include, but not be limited to, grocery stores, convenience stores, restaurants and drug stores

Subd. 9 Sale.

Subd. 10 Self-Service Merchandising. "Self-Service Merchandising" shall mean open displays of tobacco, tobacco products, tobacco related devices or nicotine or lobelia delivery devices in any manner where any person shall have access to the tobacco, tobacco products, tobacco related devices or nicotine or lobelia delivery 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, tobacco related device or nicotine or lobelia delivery device between the customer and the licensee or employee. Self-service merchandising shall not include vending machines.

Subd. 11 Smoking. "Smoking" shall mean inhaling or exhaling smoke from any lighted or heated cigar, cigarette, pipe, or any other lighted or heated tobacco or plant product. Smoking also includes carrying a lighted or heated cigar, cigarette, pipe, or any other lighted or heated tobacco or plant product intended for inhalation.

Subd. 12 Tobacco or Tobacco Products. "Tobacco" or "Tobacco products" shall include cigarettes and any product 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; cigars; cheroots; stogies; perique; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flour; cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco; and other kinds and forms of tobacco. Tobacco excludes 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.

Subd. 13 Tobacco Related Devices.

Subd. 14 Vending Machine.

750.03 License. No person shall sell or offer any tobacco, tobacco products, tobacco related devices or nicotine or lobelia delivery device without first having obtained a license to do so from the City.

Subd. 1 Application. An application for a license to sell tobacco, tobacco products, tobacco related devices or nicotine or lobelia delivery 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 City Administration shall forward the application to the Council for action at its next regularly scheduled council meeting. If the administration 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.

Subd. 9 Issuance as privilege and not a right. The issuance of a license issued under this section 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.

Subd. 10 Smoking. Smoking shall not be permitted and no person shall smoke within the indoor area of any establishment with a retail tobacco license. Smoking for the purposes of sampling tobacco and tobacco related products is prohibited.

750.04 Fees.

750.05 Basis for Denial of License.

B. 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, tobacco related devices or nicotine or lobelia delivery devices.

C. The applicant has had a license to sell tobacco, tobacco products, tobacco related devices or nicotine or lobelia delivery devices revoked within the preceding twelve months of the date of application.

750.06 Prohibited Sales. It shall be a violation of this ordinance for any person to sell or offer to sell any tobacco, tobacco product, tobacco related device or nicotine or lobelia delivery device:

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, tobacco related device or nicotine or lobelia delivery device and whereby there is not a physical exchange of the tobacco, tobacco product, tobacco related device or nicotine or lobelia delivery device between the licensee or the licensee's employee, and the customer.

750.07 Vending Machines.

750.08 Self-Service Sales. It shall be unlawful for a licensee under this ordinance to allow the sale of tobacco, tobacco products, tobacco related devices or nicotine or lobelia delivery 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, tobacco related device or the nicotine or lobelia delivery device between the licensee or his or her clerk and the customer. All tobacco, tobacco products, tobacco related devices and nicotine or lobelia delivery 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, tobacco related devices or nicotine or lobelia delivery devices at the time this ordinance is adopted shall comply with this Section within 60 days following the effective date of this ordinance except where 90% of the sales of the particular establishment are tobacco related products and minors are at all times prohibited from entering the licensed establishment.

750.09 Responsibility. All licensees under this ordinance shall be responsible for the actions of their employees in regard to the sale of tobacco, tobacco products, tobacco related devices or nicotine or lobelia delivery 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 the City from also subjecting the clerk to whatever penalties are appropriate under this ordinance, State or Federal law, or other applicable law or regulation.

750.10 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 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 fifteen (15) years but less than eighteen (18) years, to enter the licensed premise to attempt to purchase tobacco, tobacco products, tobacco related devices or nicotine or lobelia delivery 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 compliance checks shall not be guilty of unlawful possession of tobacco, tobacco products, tobacco related devices or nicotine or lobelia delivery 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.

750.11 Other Illegal Acts. Unless otherwise provided, the following acts shall be a violation of this ordinance.

Subd. 1 Illegal Sales. It shall be a violation of this ordinance for any person to sell or otherwise provide any tobacco, tobacco product, tobacco related device or nicotine or lobelia delivery device to any minor.

Subd. 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, tobacco related device or nicotine or lobelia delivery device. This subdivision shall not apply to minors lawfully involved in a compliance check.

Subd. 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, tobacco related device or nicotine or lobelia delivery device.

Subd. 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, tobacco related device or nicotine or lobelia delivery 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.

750.12 Violations.

750.13 Penalties.

750.14 Exceptions and Defenses.

750.15 Severability and Savings Clause.

750.16 Effective Date.

Effective Date

This Ordinance becomes effective upon its passage and publication according to law.

Adopted by the City Council of the City of Newport, Minnesota on the 17th day of January, 2013.

1/30/2013


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