LICENSING OF THE RETAIL SALE OF TOBACCO PRODUCTS

LICENSING OF THE RETAIL SALE OF TOBACCO PRODUCTS

AN ORDINANCE PERTAINING TO THE LICENSING OF THE RETAIL SALE OF TOBACCO PRODUCTS Be it hereby ordained and enacted by the Board of Commissioners of the County of Stevens, State of Minnesota, as follows: SECTION I PURPOSE Because the 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; because such sales, possession and use are a violations of both State and Federal laws; because numerous studies have shown that most smokers begin smoking before they have reached the age of 18 and that persons who reach the age of 18 without having started smoking are significantly less likely to do so thereafter; and because smoking has been shown to cause several serious health problems which place a financial burden on all levels of government and result in excessive medical care costs; this ordinance is 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, protecting minors against the serious effects associated with the 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 set forth in Minnesota Statute '144.39. SECTION II DEFINITIONS Except as may otherwise be provided or clearly implied by context, all terms shall be given their commonly accepted definitions. The singular shall include the plural and the plural shall include the singular. The masculine shall include 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 and 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.

B. "Tobacco related devices." "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. C. "Vending machine." "Vending machine" shall mean 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. D. "Loosies." "Loosies" shall mean the common term used to refer to a single or individually packaged cigarette. E. "Minor." "Minor" shall mean any natural person who has not yet reached the age of eighteen (18) years. F. "Retail establishment." "Retail establishment" shall mean 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. G. "Moveable place of business." "Moveable place of business" shall refer 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. H. "Sale." A "sale" shall mean any transfer of goods for money, trade, barter, or other consideration. I. "Compliance checks." "Compliance checks" shall mean the system the County 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 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, and tobacco related devices. 3

SECTION III LICENSE A. Effective July 1, 1998, no person shall keep for retail sale, sell at retail or otherwise dispose of any tobacco product at any place in the County without first obtaining a license from the County. Retail establishments holding a license issued by cities within the County which is valid and in force as of the effective date of this ordinance may continue to operate under such license until January 1, 1999, or until said license is no longer in effect, whichever is sooner. B. An application for a license to sell tobacco or tobacco products shall be made on a form provided by the County and shall be made to the County Auditor. Upon receipt of the application, the Auditor shall forward the application to the County Board for action at its next regularly scheduled meeting. C. The license fee for a retail tobacco license shall be set periodically by resolution of the Stevens County Board of Commissioners, taking into account the actual cast of issuance of the license and the expense of the enforcement of this ordinance. All retail tobacco licenses shall be valid until the December 31 following their effective date. The fee for licenses purchased for less than a one-year period shall be prorated by a percentage arrived at by taking the number of months during any part of which the license is effective divided by 12. D. Renewals of licenses shall be handled in the same manner as an original application. Application for a renewal license shall be made in the month of November of each year. 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 an automatic renewal of the license. E. Every license shall be conspicuously posted at the place for which the license is issued and shall be exhibited to any person upon request. F. No license shall be issued to a moveable place of business. Only fixed location businesses shall be eligible to be licensed under this ordinance. G. 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 not mean that the County must deny the license. If a license is mistakenly issued or renewed to a person, it shall be revoked upon the discovery that the person was ineligible for the license under this Section: (1) The applicant is under the age of 18 years. (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. 4

(3) The applicant has had a license to sell tobacco, tobacco products, or tobacco related devices revoked within the twelve months immediately preceding the date of application. (4) The applicant fails to provide all information required on the application, or provides false or misleading information. (5) The applicant is prohibited by Federal, State, or other local law, ordinance, or other regulation, from holding such a license. SECTION IV SALES PROHIBITED TO MINORS No person shall sell or offer to sell any tobacco or tobacco product to any person under eighteen (18) years of age. SECTION V SELF-SERVICE SALES No licensee shall offer for sale any tobacco or tobacco products in open displays which are accessible to the public without the intervention of a store employee. Any retailer selling tobacco or tobacco products at the time this ordinance is adopted shall comply with this section within 30 days following the effective date of this ordinance. SECTION VI VENDING MACHINE SALES No person shall sell tobacco products from any vending machine. SECTION VII VIOLATIONS BY MINORS A. 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. B. 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. C. 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 5

involved in a compliance check. D. 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. SECTION VIII COMPLIANCE CHECKS AND INSPECTIONS All licensed premises shall be open to inspection by the County police or other authorized County officials during regular business hours. From time to time, but at least once per year, the County 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, or tobacco related devices. Minors used for the purpose of compliance checks shall be supervised by County designated law enforcement officers or other designated County personnel. 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. SECTION IX PENALTIES A. If a licensee or employee of a license sells tobacco to a person under the age of 18 years, or violates any other provision of this ordinance, the licensee shall be charged an administrative penalty of not less than $75. An administrative penalty of not less than $250 must be imposed for a second violation at the same location within five years after the initial violation, and the licensee's authority to sell tobacco at that location must be suspended for not less than 15 days. For a third violation at the same location within five years after the initial violation, an administrative penalty of not less than $500 must be imposed, and the licensee's authority to sell tobacco at that location must be suspended for not less than 30 days. No suspension or penalty may take effect until the licensee has received notice, served personally or by mail, of the alleged violation and an opportunity for a hearing before the County Coordinator. B. An individual who sells tobacco to a person under the age of 18 years must be charged an administrative penalty of not less than $50. No penalty may be imposed until the individual has received notice, served personally or by mail, of the alleged violation and an opportunity for a hearing before the County Coordinator. 6

C. Minors found in unlawful possession of, or who unlawfully purchase or attempt to purchase, tobacco or tobacco products, shall be charged an administrative penalty of not less than $50.00. No penalty may be imposed until the individual has received notice, served personally or by mail, of the alleged violation and an opportunity for a hearing before the County Coordinator. D. It is an affirmative defense to the charge of selling tobacco to a person under the age of 18 years in violation of this ordinance that the licensee or individual making the sale relied in good faith upon proof of age as follows: (1) A valid driver's license or identification card issued by the State of Minnesota, another state, or a province of Canada, and including the photograph and date of birth of the licensed person; or (2) A valid military identification card issued by the United States Department of Defense; or (3) In the case of a foreign national, from a nation other than Canada, by a valid passport. E. 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. F. 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. SECTION X APPEALS Appeals of any decision made by the County Coordinator shall be filed in the Stevens County District Court. SECTION XI OTHER REMEDIES Nothing in this ordinance shall be construed as prohibiting the subjection of any individual or retailer to whatever penalties are available under any other local, State of Federal law, or other applicable law or regulation. SECTION XII 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 as an invalidation or affect the validity or enforceability of any other section or provision of this ordinance. 7

SECTION XIII EFFECTIVE DATE This ordinance shall be in effect 30 days after the passage and publication. Passed and adopted by the Stevens County Board of Commissioners this 18th day of June, 1998. STEVENS COUNTY BOARD OF COMMISSIONERS By Herb Kloos, Chairman ATTEST: Dick Bluth, Auditor 8