HomeMy WebLinkAboutItem 08Memorandum
To: Mayor and City Council
From: Daryl Morey, Planning Directorlm
Date: March 20, 2015
Subject: March 23, 2015 City Council Work Session
Agenda Item: Hookah Lounge Ordinance
City of Lakeville
Planning Department
In December 2013 the City of Burnsville amended their City Code to address concerns related
to hookah lounges. Burnsville adopted the City Code amendment to address issues their city
was having with two hookah lounges, including: public safety (i.e. late night hours of
operation, noise and nuisance complaints, increased police calls), and second hand smoke
seeping into adjoining tenant spaces of multi -tenant commercial buildings.
A hookah is a water pipe that is used to smoke flavored tobacco. Sampling of tobacco
products sold at a retail tobacco shop, which are defined as having 90% of their gross
revenues from tobacco related products, is allowed as an exception to Minnesota's Freedom
To Breathe Act. Hookah lounges tend to operate more like a nightclub or social hangout and
can generate public safety concerns like Burnsville has experienced.
The Burnsville City Code amendment established a definition for a tobacco products shop
and performance standards for tobacco products shops, including: restrictions on hours of
operation, indoor seating and sampling, establishing a maximum building square footage,
and requiring. ventilation systems.
To the best of staffs knowledge, there is one hookah lounge in the city, in the multi -tenant
retail center located in the southeast quadrant of 1601h Street and Cedar Avenue. Campbell
Knutson is the City Attorney for both Lakeville and Burnsville and they prepared Burnsville's
City Code amendment. As such, they would be well versed to prepare an amendment to fit
our City Code if so directed by the City Council.
The following options are available for consideration:
• Make no changes to the Sale of Tobacco Chapter of the City Code (Chapter 3-6).
• Direct the City Attorney's office to prepare an amendment to Chapter 3-6 similar to
Burnsville's 2013 amendment.
• Direct staff to conduct additional research as time permits and report back to the City
Council at a future work session.
Staff will be available at Monday night's work session to discuss this agenda item. If you have
any questions before the work session feel free to contact me.
Attachments:
• Burnsville City Code amendment
• February 13, 2014 jordannews.com article
2
ORDINANCE NO. 1311
CITY OF BURNSVILLE, MINNESOTA
ORDINANCE AMENDING CITY CODE TITLE 3, CHAPTER 23
CONCERNING THE SALE, POSSESSION, AND USE OF TOBACCO
PRODUCTS AND TOBACCO RELATED DEVICES, UPDATING THE DEFINITION
OF TOBACCO PRODUCTS TO CONFORM TO NEW STATE LEGISLATION
THE CITY COUNCIL OF THE CITY OF BURNSVILLE ORDAINS:
SECTION 1. City Code Title 3, Chapter 23, TOBACCO PRODUCTS AND
TOBACCO RELATED DEVICES is amended by adding the underlined language and deleting
the sWkedffee language as follows:
Chapter 23 TOBACCO PRODUCTS AND TOBACCO RELATED DEVICES
3-23-1: PURPOSE:
3-23-2: DEFINITIONS:
3-23-3: LICENSE REQUIRED:
3-23-4: LICENSE FEE:
3-23-5: PROHIBITED SALES:
3-23-6: TOBACCO PRODUCTS SHOP
3-23-7: SAMPLING:
3-23-68: MOBILE SALES:
3-23-79: VIOLATIONS:
3-23-810: HEARING ON DENIAL OR VIOLATION:
3-23-911: AFFIRMATIVE DEFENSES:
3-23-120: SEVERABILITY:
3-23-1: PURPOSE:
The city council finds that current state and federal laws efprohibiting sales of tobacco related
products to persons under the age of eighteen (18) and limiting the use of tobacco related
products has proven ineffective in preventing r limitine the availabili
and use of tobacco related products.
. Ord. 860, 9-16-2002)
3-23-2: DEFINITIONS:
The following words and terms when used in this section shall have the following meanings
unless the context clearly indicates otherwise:
ADULT: A person eighteen (18) years of age or older.
Ordinance No. 1311
Page 2
APPLICANT: Refers to a "person" as defined herein, who completes or signs an application for
a license to sell tobacco related products individually or on behalf of a business.
BUSINESS: Refers to the business of selling tobaccorely products.
LICENSE HOLDER: Refers to the owner of the business licensed to sell tobacco related
products.
MOVABLE PLACE OF BUSINESS: A business whose physical location is not permanent or is
capable of being moved or changed.
PERSON: One or more natural persons; a partnership, including a limited partnership; a
corporation, including a foreign, domestic, or nonprofit corporation; a trust; a political
subdivision of the state; or any other business organization.
SELF-SERVICE MERCHANDISING: A method of displaying tobacco related products so that
they are accessible to the public without the intervention of an applicant, license holder or their
agents or employees.
SMOKING DEVICE: A pjW, hookah, bowl, or other apparatus in which tobacco related product
is burned for the purposes of smoking or inhalation.
TOBACCO RELATED PRODUCT: Cigarettes, cigars, cheroots, stogies, perique, granulated,
plug cut, crimpt cut, ready, rubbed and other smoking tobacco; snuff, snuff flower, cavendish,
plug and twist tobacco; fine cut and other chewing tobaccos; shorts, refuse scripts, clippings,
cuttings, and sweepings of tobacco; and My other product containing kinds and forms of tobacco
includingla, prepared in such manner as to be suitable for chewing, sniffing, or -smoking in
a pipe; rolling paper or other tobacco related devices. This definition excludes a product that has
been approved or otherwise certified for legal sale by the United States Food And Drug
Administration for tobacco use cessations, harm reduction, or for other medical purposes, and is
being marketed and sold solely for that annroved numose.
TOBACCO PRODUCTS SHOP: A retail establishment with an entrance door opening_ directly
to the outside that derives more than ninet�(90) percent of itsgross revenue from sale of tobacco
related products and in which the sale of other products is merely incidental. "Tobacco products
shop" does not include a tobacco department or section of any individual business establishment
with any We of food, liquor, or restaurant license.
VENDING MACHINE: Any mechanical, electric or electronic, self-service device which, upon
insertion of money, tokens or any other form of payment, dispenses tobacco products and
including vending machines equipped with manual, electric or electronic locking devices. (Ord.
860,9-16-2002)
173636
Ordinance No. 1311
Page 3
3-23-3: LICENSE REQUIRED:
No person shall keep for retail sale, sell at retail or otherwise dispense any tobacco related
product at any place in the city without first obtaining a license and paying a license fee. The
issuance of a license shall be considered a pjivilege and not an absolute right of the applicant and
shall not entitle the holder to an automatic renewal of the license.
(A) Application: An application for a license to sell tobacco, tobacco products, or tobacco related
devices shall be made on a form provided by the city. The application shall include, but is not
limited to, requiring the full name of the applicant, the applicant's residential and business
address and telephone numbers, the name of the proposed license holder, the business location
for which the license is sought, site plan of the space for tobacco product shop, and a copy of the
educational materials the applicant intends to use to educate employees. The completed
application along with the application fee shall be submitted to the city manager or designee for
approval. If the city manager or designee determines that an application is incomplete, he or she
shall return the application to the applicant with notice of the deficiencies.
(B) Action: The city manager or designee may either approve or deny the license, or may delay
action for such reasonable period of time to permit the city to complete any investigation of the
application or the applicant deemed necessary. If the city manager or designee approves the
license, a license shall be issued to the applicant. If the city manager or designee denies the
application, a notice of denial shall be sent to the applicant at the business address provided on
the application along with the reasons for the denial. The notice shall also inform the applicant of
their right to appeal the city manager's or designee's decision to the council pursuant to the
process set forth in section 3-23-108 of this chapter. If a license is mistakenly issued or renewed
to an applicant or license holder, it shall be revoked by the city manager or designee upon the
discovery that the person, applicant or license holder was ineligible for the license under this
section.
(C) Term: All licenses are issued for a period of one year. The license period is from 3a uary
July_1 to June 30Deeember- 31.
(D) Revocation Or Suspension: Any license issued under this section may be revoked or
suspended as provided in the violations section of this chapter or other violation of this code
pursuant to the process set forth in section 3-23-810 of this chapter.
(E) Transfers: All licenses issued under this section shall be valid only on the business 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 city manager or designee.
(F) Display: Every license shall be conspicuously posted at the place of business for which the
license is issued and shall be exhibited to any person upon request.
(G) Renewals: The renewal of a license under this section shall be handled in the same manner
as the original application. The request for renewal shall be made at least thirty (30) days but no
173636
Ordinance No. 1311
Page 4
more than sixty (60) days before the expiration of the current license. The issuance of a license
under this chapter 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.
(H) Instructional Program: No person shall be issued a license or renewal license to sell tobacco
related products unless an applicant or license holder has an approved program for instructing all
employees at the business premises for which the license was issued, in the legal requirements .
pertaining to the sale of tobacco related products, including, but not limited to, reviewing the law
on the sale of tobacco related products, providing information on the health risks of using
tobacco related products, and requiring employees to request identification from every customer
-who-appears to beundertwenty seven (27) -years -of age. No license -shall -be issued unless the --
applicant or license holder signs a city form attesting that each employee of the applicant or
license holder has received training and instruction on the sale of tobacco related products and
the date such training occurred. The training shall include information that the sale of tobacco
related products to minors, is illegal, explains whatproof of age is legally acceptable, and that a
sale to a minor can subject the applicant or license holder and their employees to criminal and/or
civil liability.
aLy tobacco products shop shall require a Certificate of Occupancy for retail use from the
Building Official and Fire Marshal Lnor to occu anc .
(J) Any licensee is responsible for the activities within the licensed premises or property owned
or controlled by the licensee adjacent to the licensed premises including common and parking
areas.
(1KK) Denials: The following shall be grounds for denying the issuance or renewal of a license
under this section. The following list is not exhaustive or exclusive:
1. The applicant is under the age of eighteen (18) years.
2. The applicant has been convicted within the past five (5) years of a violation of any
provisions of this chapter or a violation of a federal, state, or local law, ordinance provision, or
other regulation relating to tobacco or tobacco products, or related tobacco devices.
3. The applicant or license holder has had a license to sell tobacco, tobacco products or
tobacco related devices revoked within the preceding twelve (12) months of the date of
application.
4. The applicant fails to provide any information required on the city license application,
or provides false or misleading information.
5. The applicant or license holder has outstanding fines, penalties or property taxes owed
to the city.
173636
Ordinance No. 1311
Page 5
6 The applicant or business premises is in violation of any provisions of law or this code
including violation of building or fire codes mechanical codes. zoning ordinance, nronerty
maintenance or state or federal laws.
Q Violations: The following shall be grounds for revocation or suspension or non-renewal of a
license and fines under this section. The following list is not exhaustive or exclusive:
1 The applicant failed to provide any information required on the city license
application, or provided false or misleading information.
2. The applicant or license holder has outstanding fines. penalties or property taxes owed
to the city.
3 The applicant or business premises is in violation of any provision of law or this code
including violation of building_or fire or mechanical codes zoning ordinance, property
maintenance, or state or federal laws.
4 The licensedpremises has failed one or more compliance checks as prescribed in 3-
23-3 (M) of this chapter.
S The applicant has not provided required educational/training materials as indicated in
the ap In ication.
6 For tobacco product shops carbon monoxide (CO) levels exceeding 35 parts per
million consistent with OSHA and NIOSH standards for safe environment.
7 The licensee suffered or permitted illegal acts upon the licenses premises and parking
area or on property owned or controlled by the licensee adi acent to the licensed premises
(including parking areas), unrelated to the sale of tobacco.
8 The licensee had knowled e� of illegal acts upon or attributable to the licensed
premises, but failed to report the same to police.
Compliance Checks: All licensed premises shall be open to inspection by the city pekee-or
other authorized city officials during regular business hours.
1. Annual Compliance Checks: From time to time, but at least once per year, the city
shall conduct compliance checks. Such compliance checks may involve, but are not limited to,
engaging minors to enter the licensed premises to attempt to purchase tobacco, tobacco products,
or tobacco related devices.
2. Minors: If minors are used for compliance checks they shall not be guilty of unlawful
possession of tobacco when such items are obtained as a 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
173636
Ordinance No. 1311
Page 6
minor's age asked by the licensee or his or her employee and shall produce any identification for
which he or she is asked. (Ord. 860, 9-16-2002)
3-23-4: LICENSE FEE:
The application fee shall be determined by the city council ,from time to time by resolution, and
shall be paid at the time of application. License fees shall not be prorated. (Ord. 860, 9-16-2002)
3-23-5: PROHIBITED SALES:
(A) Prohibited Sales No person shall sell, offer for sale, give away, furnish, or otherwise deliver
any tobacco, tobacco product, or tobacco related device:
1. To any person under the age of eighteen (18) years.
2. By means of any type of vending machine.
3. By means of self-service merchandising or any means whereby the customer may have
access to such items without having to request the item from the license holder, their agents or
employees. All tobacco related products shall be stored behind a counter or other area not freely
accessible to customers.
4. By any other means, or to any other person, prohibited by federal, state, or other local
law, ordinance provision, or other regulation.
(B) Exception: A license holder who operates an establishment that sells only tobacco related
products is exempt from the self-service merchandising provision if the license holder prohibits
anyone under eighteen (18) years of age from entering the establishment, unless accompanied by
a parent, and the license holder conspicuously displays a notice prohibiting persons under
eighteen (18) years of age from entering the establishment unless accompanied by a parent. (Ord.
860, 9-1672002)
3-23-6: TOBACCO PRODUCTS SHOP: The following requirements shall apply:
(A) For licenses issued after December 17, 2013, a minimum separation of 0.75 mile (3.960 feet
at closest point on a map) from another tobacco products shop.
(B) State Building. Fire and Mechanical code requirements must be adhered to at all times and
ventilation systems must be operable and utilized.
(C) Tobacco Product Shops are prohibited from providing in exchange for a fee or any other
consideration seating within or access to the indoor area of a tobacco products shop.
(D) Hours of operation shall be between 8:00 a.m. and 10:00 p.m., seven days per week
including holidays.
173636
Ordinance No. 1311
Page 7
(El The maximum square footage of the entire licensed premises shall not exceed 2,000 sq. feet.
The maximum area for seating within a tobacco shop shall not exceed one-half (12) of the
licensed retail display. storage and sales area.
3-23-7: SAMPLING: For tobacco products shops that allow sampling_per state law, code
required ventilation systems must be operable and utilized. The operator of any tobacco
products shop is hereby prohibited from any of the following`
(A). Except for a bonafide sale of a smoking device, providing or otherwise making_ available
for use by a customer, potential customer, or any other person a smoking device for the purposes
of sampling tobacco related p oducts.
(13). Providing in exchange for a fee or any other consideration seating within or access to the
indoor area of a tobacco products shop: or
(C). Permitting within the indoor area of a tobacco products shop the sampling of any tobacco
and nicotine related product which was not furnished by the tobacco products shop on the date
and at the time the sampling occurs.
3-23-68: MOBILE SALES:
No license shall be issued for the sale of tobacco related products at a movable place of business,
including, but not limited to, motorized vehicles, mobile sales kiosks, or trailers. (Ord. 860, 9-16-
2002)
3-23-9-7: VIOLATIONS:
(A) Revocation Or Suspension: Any violation of this chapter shall be grounds to revoke or
suspend a license. Life threatening fire or building code violations may result in immediate
suspension and fines until corrected.
(B) Criminal Penalty: In addition to the criminal penalties set forth in Minnesota statutes, the
following shall constitute a criminal violation of this chapter:
1. It shall be a misdemeanor for anyone under the age of eighteen (18) years to use,
purchase, attempt to purchase, or possess tobacco related products. This section shall not apply
to a person under the age of eighteen (18) years who purchases or attempts to purchase tobacco
related products while under the direct supervision of a responsible adult for training, education,
research, or enforcement purposes.
2. Upon discovery of a suspected violation, the city pekee-shall issue a criminal citation
to the minor who purchased or possessed the tobacco as set forth in subsection (B)1 of this
section.
173636
Ordinance No. 1311
Page 8
(C) Administrative Civil Penalties; Individuals: Any person who violates sells or- airy
this chapter is subject to an
administrative civil fee as described below in addition to license
revocation or suspension. (Or -d.8601 n 16 2002)
(D) Administrative Civil Penalties; License Holder: The license holder shall be responsible for
the conduct of its agents or employees while on the licensed premises. Any violation of this
chapter shall be considered an act of the license holder for purposes of imposing a civil penalty,
license suspension, or revocation. Each violation, and every day in which a violation occurs or
continues, shall constitute a separate offense.
1. Notice Sof Violation: Upon the occurrence of a suspected violation, the peliee
licensing department shall inform the city manager of the suspected violation. The city manager
or designee shall then send to the license holder a written notice of the civil violation. The notice
shall advise the license holder of the civil penalty and the license holder's right to request a
hearing regarding -the violation of this chapter pursuant to section ;.23--8'10 ofthis -chapter
2. Civil Penalties: Each license issued hereunder shall be subject to suspension or
revocation for violation of any provisions of this chapter or the laws of the state of Minnesota as
follows:
Note:
"."Best practices" applies to those license holders who at the time of the violation are registered
and in good standing with the city to participate in its tobacco "best practices program". To be in
173636
Best Practices
Non -best
Violation i
Business'
Practices Business
First violation '
$150.00 fine
$500.00 fine and 3 day suspension of
license
Second violation 11400.00
fine$750.00
fine and 5 day suspension of
within 2 years
r..� ..., .
._._._..__....
license
Third violation
$750.00 fine and 7 day suspension of
$1,000.00 fine and 10 day suspension
{within 2 years
)'cense and best practices review '
of license
panel
:Fourth violation $1,000.00 fine and 7 day suspension evocation: Minimum revocation
within 3 years 'of license and best practices review period will be 2 years from the
panel revocation date
Additional Revocation: Minimum revocation Revocation: Minimum revocation
',violation within 3 s period will be 2 years from the 'period will be 2 years from the
years j revocation date revocation date
Note:
"."Best practices" applies to those license holders who at the time of the violation are registered
and in good standing with the city to participate in its tobacco "best practices program". To be in
173636
Ordinance No. 1311
Page 9
good standing there shall be no outstanding violations as listed in 3-23-3(L) and documentation
of the required instructional materials in Section 3-23-3 (Hl have been provided to employees.
3. Criminal Prosecution: Any civil penalty, suspension or revocation or combination
thereof under this section does not preclude criminal prosecution under this chapter or Minnesota
statutes section 609.685. (Ord. 1073, 4-16-2007)
1 3-23-910: HEARING ON DENIAL OR VIOLATION:
(A) Hearing: Following receipt of a notice of denial issued under section 3-23-3 of this chapter
or a notice of a violation and penalty issued under section 3-23-79 of this chapter, an applicant or
license holder may request a hearing before the city council. A request for a hearing shall be
made by the applicant or license holder in writing and fled with the city manager or designee
within ten (10) calendar days of the mailing of the notice of denial or alleged violation.
Following receipt of a written request for hearing, the applicant or license holder shall be
afforded an opportunity for a hearing before the council. If a committee of the council conducts
the hearing it shall report its findings and make a recommendation to the full council.
(B) Findings: If after the hearing the applicant or license holder is found ineligible for a license,
or in violation of this chapter, the council may affirm the denial, impose a civil penalty, issue a
suspension or revocation, or impose any combination thereof as set forth in section 3-23-79 of
this chapter.
(C) Default: If the applicant or license holder has been provided written notice of the denial or
violation and if no request for a hearing is filed within the ten (10) calendar day period, then the
denial, civil penalty, suspension or revocation imposed in section 3-23-79 of this chapter shall
take immediate effect by default. The city manager or designee shall mail notice of the denial,
fine, suspension or revocation to the applicant or license holder. The city peliee-shall investigate
compliance with the suspension or revocation. (Ord. 860, 9-16-2002)
3-23-911: AFFIRMATIVE DEFENSES:
It is an affirmative defense to a charge under this chapter if the license holder proves by a
preponderance of the evidence that the license holder reasonably and in good faith relied on
proof of age as described in chapter 340A.503, subdivision 6 of Minnesota statutes, in making
the sale. (Ord. 860, 9-16-2002)
1 3-23-129: SEVERABILITY:
If any provision of this chapter is for any reason held to be invalid, such decision shall not affect
the validity of the remaining provisions of this chapter. (Ord. 860, 9-16-2002)
SECTION 2. Effective Date. This ordinance shall be effective immediately upon its
passage -and -publication according to law.
173636
J
Ordinance No. 1311
Page 10
ADOPTED this 17th day of December, 2013, by the City Council of the City of
Burnsville.
h ollins, City ler
173636
Prior Lake joins others in pre-emptive strike at hookah lounges -Jordan Independent: Loc... Page 1 of 2
Prior Lake joins others in pre-emptive strike at
hookah lounges
By Lori Carlson editor@plamerican.com I Posted: Thursday, February 13, 201412:00 pm
Prior Lake has joined a growing number of cities in hanging up the "unwelcome" sign for hookah
lounges.
While hookah advocates defend the practice as part of a centuries-old cultural tradition and a
modern social experience, city officials throughout the United States have been banning the
tobacco -sharing establishments with increasing fervor in the past year.
Most recently, nearby cities such as Shakopee and Savage have enacted temporary bans on
hookah lounges while their staff members study the legal ramifications.
On Monday, Prior Lake City Council members unanimously approved a one-year moratorium on
hookah lounges within the city. Though no one has proposed a hookah lounge in Prior Lake to
date, city leaders felt anxious to put a ban into place as surrounding cities beat them to the punch.
Hookahs are pipe -like devices that people use to smoke flavored tobacco, called shisha. The
origins date back to 1600s Persia, and social smoking remains popular in Middle Eastern
countries.
In the United States, mainstream use of hookahs has grown in the last 10 to 15 years, mostly
among college-age adults and spanning across cultures. Though some have accused cities of being
discriminatory in banning the lounges, city officials have said the bans are simply an extension of
indoor -smoking restrictions.
Prior Lake council members discussed a potential hookah lounge ban at an untelevised workshop
in January, but individual members have not publicly stated reasons for the moratorium approved
on Monday, leaving the onus for rationale to city attorneys.
Sarah Schwarzhoff, an assistant city attorney who represents Prior Lake, Savage and Eden Prairie,
said the problem lies with the grey area in licensing for such facilities.
Hookah lounges currently fall under a narrow definition of a Minnesota statute that allows
sampling of tobacco products in shops (an exception to Minnesota's Freedom to Breathe Act,
passed in 2007 to restrict smoking in public places).
The city of Burnsville has struggled in the last few years with regulating its two hookah lounges.
Neighbors of the establishments have complained about large crowds, late hours, noise and illegal
activities outside the lounges.
http://www.jordannews.cominews/local government/prior-lake joins-others-in-pre-emptiv... 2/21/2014
Prior Lake joins others in pre-emptive strike at hookah lounges - Jordan Independent: Loc... Page 2 of 2
In December, Burnsville council members approved an ordinance restricting the size of hookah
lounges, their proximity to other lounges and levels of carbon monoxide within the buildings,
among other tightened rules.
Unlike Savage's new ordinance, Prior Lake has not addressed — or yet prohibited — electronic
cigarette establishments or "vaping" lounges. Still, the staff study will look at what is considered a
hookah lounge.
Other concerns surrounding hookah lounge operations include potential fire code violations,
electrical hazards, commercial zoning violations and air-quality issues.
http://www jordannews.cominewsllocal govemmentlprior-lake joins-others-in-pre-emptiv... 2/21/2014