Loading...
HomeMy WebLinkAboutTobacco Ordinance - 8-15-2011OTTER TAIL COUNTY TOBACCO ORDINANCE An Ordinance relating to the sale of tobacco, tobacco- related devices, electronic delivery devices, or nicotine, or lobelia delivery products in the County of Otter Tail (the “County”) and for the restriction of the sale of such items to persons under age 21. The County Board of Otter Tail County ordains: Section I. General Provisions. A. Title. The title of this Ordinance shall be the Otter Tail County Tobacco Ordinance. B. Purpose and Authority. Because the county recognizes that the sale of commercial tobacco, tobacco-related devices, electronic delivery devices, and nicotine or lobelia delivery products to persons under the age of 21 violates both state and federal laws; and because studies, which the county accepts and adopts, have shown that youth use of any commercial tobacco products has increased to 26.4% in Minnesota ; and because nearly 90% of smokers begin smoking before they have reached the age of 18 years, and that almost no one starts smoking after age 25; and because studies show that youth and young adults are especially susceptible to commercial tobacco product availability, advertising and price promotions at tobacco retail environments; and because commercial tobacco use has been shown to be the cause of many serious health problems which subsequently place a financial burden on all levels of government, this ordinance is intended to regulate the sale of commercial tobacco, tobacco-related devices, electronic delivery devices, and nicotine or lobelia delivery products for the purpose of enforcing and furthering existing laws, to protect youth and young adults against the serious health effects associated with use and initiation, and to further the official public policy of the state to prevent young people from starting to smoke as stated in Minn. Stat. § 144.391, as it may be amended from time to time. This Ordinance applies in unorganized territory of the County and in all towns and cities which do not license and regulate retail tobacco sales. This Ordinance is enacted pursuant to Minnesota Statutes, Chapter 461. C. 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 and enforceability of any other section or provision of this Ordinance. D. Responsibility. All licensees under this Ordinance shall be responsible for the actions of their employees regarding the sale of tobacco, tobacco products, tobacco-related devices, electronic delivery devices, and nicotine or lobelia delivery devices on the licensed premises, and the sale of such item by an employee shall be considered a sale by the license holder. Nothing in this section shall be construed as prohibiting the County from also subjecting the employee to whatever non-criminal penalties are appropriate under this Ordinance, state or federal law or other applicable law or regulation. Section II. Definitions. For purposes of this Ordinance, certain terms and words are herein defined as follows: A. Child-resistant packaging. “Child-resistant packaging” means packaging that meets the definition set forth in Code of Federal Regulations, title 16, section 1700.15(b), as in effect on January 1, 2015, and was tested in accordance with the method described in Code of Federal Regulations, title 16, section 1700.20, as in effect on January 1, 2015. B. Cigar. “Cigar” means any roll of tobacco that is wrapped in tobacco leaf or in any other substance containing tobacco, with or without a tip or mouthpiece, which is not a cigarette as defined in Minn. Stat. § 297F.01, subd. 3, as may be amended from time to time. C. Electronic delivery device. "Electronic delivery devices" means any product containing or delivering nicotine, lobelia, or any other substance intended for human consumption through the inhalation of aerosol or vapor from the product. Electronic delivery device includes, but is not limited to, devices manufactured, marketed, or sold as e-cigarettes, e- cigars, e-pipes, vape pens, mods, tank systems, or under any other product name or descriptor. Electronic delivery device includes any component part of a product, whether or not marketed or sold separately. Electronic delivery device does not include any product that has been approved or certified 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 marketed and sold for such an approved purpose. D. Licensed products. “Licensed product” means the term that collectively refers to any tobacco, tobacco-related device, electronic delivery device, or nicotine or lobelia delivery product. E. Loosies. “Loosies” means the common term used to refer to single cigarettes, cigars, or and any other licensed product that have been removed from their original retail packaging and offered for sale. Loosies does not include premium cigars that are hand-constructed, have a wrapper made entirely from whole tobacco leaf, and have a filler and binder made entirely of tobacco, except for adhesives or other materials used to maintain size, texture, or flavor. F. Moveable place of business. "Movable place of business" means any form of business operated out of a kiosk, truck, van, automobile, trailer or other type of vehicle or transportable shelter rather than a fixed address storefront or other permanent type of structure authorized for sales transactions. G. Nicotine or lobelia delivery devices. Any product containing or delivering nicotine or lobelia intended for human consumption, or any part of such a product that is not a 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 solely for that approved purpose. H. Sale. "Sale" or "sell" means any transfer of goods for money, trade, barter or other consideration. I. Self-serve merchandising. "Self-serve merchandising" means open displays of licensed products in any manner where any person shall have access to the licensed 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 licensed product between the customer and the licensee or licensee's employee. J. Tobacco. ''Tobacco" means 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, including cigarettes; cigars; cheroots; stogies; perique; granulated, plug cut, crimp cut, ready rubbed and other smoking tobacco; snuff; snuff flower; 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 does not include any 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. K. Tobacco-related devices. "Tobacco-related devices” means any rolling papers, wraps, pipes, or other device intentionally designed or intended to be used with tobacco products. Tobacco-related device includes components of tobacco-related devices or tobacco products, which may be marketed or sold separately. Tobacco-related devices may or may not contain tobacco.. L. Vending machine. "Vending machine" means any mechanical, electric, electronic or other type of device which dispenses licensed products upon the insertion of money, tokens or other form of payment directly into the machine by the person seeking to purchase licensed products. Section III. License. A. License Requirement. No person shall sell or offer to sell any licensed products without first having obtained a license to do so from the County. l. Application. An application for a license to sell licensed products shall be made to the County Auditor on a form provided by the County. 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 being sought and any additional information the County deems necessary. If the County Auditor shall determine that an application is incomplete, the application will be returned to the applicant with a notice of the information necessary to make the application complete. Upon receipt of the completed application and performing a record check on the applicant, the County Auditor shall forward the application to the County Board for action. 2. Action. The County Board may either approve or deny the license, or it may delay action for such reasonable period as necessary to complete any investigation of the application or the applicant it deems necessary. If the County Board approves the license, the County Auditor shall issue the license to the applicant. If the County Board denies the license, notice of the denial shall be given to the applicant along with a notice of the applicant's right to appeal the decision to District Court. 3. Term. All licenses issued under this Ordinance shall be valid for one calendar year from the date of issue. 4. Revocation or suspension. Any license issued under this Ordinance may be revoked or suspended as provided in the Violations and Penalties section of this Ordinance. 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 person to whom the license was issued. 6. Movable place of business. No license shall be issued to a movable place of business. Only fixed location businesses shall be eligible to be licensed under this Ordinance. 7. Display. All licenses shall be posted and displayed in plain view of the general public on the licensed premises. 8. Renewals. The renewal of a license issued under this section shall be handled in the same manner as the original application. The request for a renewal shall be made at least 30 days, but no more than 60 days, before the expiration of the current license. 9. Fees. The fee for an annual license under this Ordinance shall be set by the Otter Tail County Board, and no license shall be issued or renewed until the fee has been paid in full. B. Basis for Denial of License. A license shall not be issued if any of the following circumstances exist: 1. The applicant is under the age of 21 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 the sale of licensed products. 3. The applicant has had a license to sell licensed products revoked within the preceding 12 months of the date of application. 4. The applicant fails to provide any 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. C. Mistaken Issuance. If a license is mistakenly issued or renewed to an applicant, it shall be revoked upon the discovery that the applicant was ineligible for the license under this section. Section IV. Violations. A. Prohibited Sales. It shall be a violation of this Ordinance for any person to sell or offer to sell any licensed products: 1. Without having first obtained a license to sell licensed products. 2. By means of any type of vending machine. 3. By means of loosies as defined. 4. By means of self-service merchandising. 5. By any other means, to any other person, or in any other manner or form prohibited by federal, state, or other local law, ordinance provision or other regulation. B. Minimum legal sales age for tobacco products. The sale of licensed products to a person under the age of 21 is prohibited. 1. Age verification. Before selling any licensed product, the licensee shall verify that the recipient is at least 21 years of age. Each distributor shall examine the recipient's government issued photographic identification. No such verification is required for a person over the age of 30. That a person appeared to be 30 years of age or older shall not constitute a defense to a violation of this section. 2. Signage. No person shall distribute or permit the provision of licensed products in Otter Tail County unless a clearly visible notice of the county minimum legal sales age is posted at the location where these products are available for purchase. C. Liquid Packaging. No person shall sell or offer to sell any liquid, whether or not such liquid contains nicotine, which is intended for human consumption and use in an electronic delivery device, in packaging that is not child resistant. Upon request by the county, a licensee must provide a copy of the certificate of compliance or full laboratory testing report for the packaging used. D. Other Prohibited Acts. Unless otherwise provided, the following act shall be a violation of this Ordinance: 1. Sales or furnishing. It shall be a violation of this Ordinance for any person to sell or otherwise provide any licensed product to any person under the age of 21. 2. Procurement. It shall be a violation of this Ordinance for any person aged 21 or over to purchase or otherwise obtain such item on behalf of a person under the age of 21. It shall further be a violation of this Ordinance for any person age 21 or over to coerce or attempt to coerce a person under the age of 21 to purchase or otherwise obtain any licensed products. 3. False identification. It shall be a violation of this Ordinance for any person 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 in order to represent an age older than the actual age of the person using that identification. Section V. Penalties and Procedures. A. Compliance Checks and Inspections. All licensed premises must be open to inspection by law enforcement or other authorized county officials during regular business hours. From time to time, but at least once per year, the county will conduct compliance checks. In accordance with state law, the county will conduct at least one compliance check that involves persons at least 17 years of age, but under the age of 21, who, with the prior written consent of a parent or guardian if the person is under the age of 18, will enter licensed premises to attempt to purchase licensed products. Persons used for the purpose of compliance checks will be supervised by law enforcement or other designated personnel. B. Civil Penalties. 1. Administrative penalties. a. Licensees. If a licensee or employee of a licensee violates provisions of this Ordinance, the licensee shall be charged an administrative penalty per Minnesota Statute 461.12, Subdivision 2. 2. Citation. 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. The person may either admit to the violation by paying the administrative fee or may request a hearing. 3. Hearing Procedure. If a person accused of violating this Ordinance requests a hearing to the County Administrator, a hearing shall be scheduled before the Otter Tail County Board of Commissioners and shall be open to the public. a. Notice. A person accused of violating the Ordinance shall be given notice of the hearing. The notice shall include a statement of the time, place and nature of the hearing, and a reference to the section of the Ordinance involved. b. Conduct of the hearing. The accused may be represented by counsel. The County shall present evidence. All testimony shall be sworn under oath. All parties shall have full opportunity to respond to and present evidence, cross-examine witnesses and present argument. c. Burden of Proof. The County shall have the burden of proving a violation of the Ordinance by a preponderance of the evidence, and all findings of fact, conclusions and decision by the County Board shall be based on evidence presented and matters officially noticed. d. Evidence. All evidence which possesses probative value, including hearsay, may be admitted if it is the type of evidence on which prudent persons are accustomed to relying in the conduct of their serious affairs. Evidence that is incompetent, irrelevant, immaterial, or unduly repetitious may be excluded. The hearing shall be confined to matters raised in the written notice of hearing. 4. Decision. Following the hearing, the County Board shall make written findings, and if a violation is found to have occurred, shall impose the administrative penalties outlined in this Ordinance. A copy of the Findings and Order shall be provided to the person accused. 5. Appeals. Appeals of any decision made by the County Board shall be filed in the District Court. C. Defense. 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. D. Effective date. This Ordinance shall be effective on and after January 1, 1999, August 15, 2011, and _______________________________ for revisions to the ordinance. Adopted by the Otter Tail County Board of Commissioners on ________________________________ _______________________________ Betty Murphy, Board Chair Attested _________________________________ Nicole Hanson, Administrator