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HomeMy WebLinkAboutItem 09June 9, 2015 Item No.________ ORDINANCE AMENDING TITLES 3 AND 4 OF THE CITY CODE CONCERNING TOBACCO AND E-CIGARETTES Proposed Action Staff recommends adoption of the following motion: Move to adopt ordinance amending Titles 3 and 4 of the City Code concerning tobacco and e-cigarettes and summary ordinance for publication. Overview At your May 11th work session, the City Council directed staff to prepare an ordinance amendment that accomplishes the following: • Amends the basis for denial of a license to include convictions of narcotic possession and drug paraphernalia possession; • Eliminates the Best Practices Program and revises the civil penalties for ordinance violations • Prohibits the use of electronic delivery devices (e-cigarettes) in all public places In addition, the proposed ordinance prohibits the operation of smoking lounges and vapor lounges as defined. There are currently no smoking or vaping lounges in Lakeville. Primary Issues to Consider All current tobacco licensees will be notified of the elimination of the Best Practices Program and the revisions to the civil penalties. The last tobacco compliance check was conducted by the Police Department in October, 2014. Extension of the Clean Indoor Air Act to include electronic delivery devices (e-cigarettes) will apply to all indoor public places in Lakeville including, but not limited to, restaurants, food or liquor establishments, retail stores and other commercial establishments and educational facilities. The ordinance shall be effective immediately upon its passage and publication. Information will be published in Messages and posted on our website. Supporting Information • Council work session report dated May 6, 2015 Charlene Friedges, City Clerk Financial Impact: $_____N/A_______Budgeted: Y/N ____ Source: __________________ Community Values: Safety Throughout the Community 1 182103v1 ORDINANCE NO. _________ CITY OF LAKEVILLE DAKOTA COUNTY, MINNESOTA AN ORDINANCE AMENDING TITLES 3 AND 4 OF THE LAKEVILLE CITY CODE CONCERNING TOBACCO AND E-CIGARETTES THE CITY COUNCIL OF THE CITY OF LAKEVILLE, MINNESOTA ORDAINS: SECTION 1. Section 3-6-2 of the Lakeville City Code is amended by deleting the following definitions: BEST PRACTICES ESTABLISHMENT: A license holder who has entered a written agreement with the police department and can demonstrate compliance with the best practices program. BEST PRACTICES PROGRAM: The optional instructional and employee training program developed and administered by the police department. SECTION 2. Section 3-6-2 of the Lakeville City Code is amended by adding the following definitions: SMOKING LOUNGE: means a location licensed to sell tobacco products where: (a) Except for a bona fide 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 purpose of smoking any tobacco product; (b) 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 the sampling of any tobacco product which was not furnished by the tobacco products shop on the date and at the time the sampling occurs. VAPOR LOUNGE: means a location that sells electronic delivery devices where: (a) Except for a bona fide sale of e-cigarettes, providing or otherwise making available for use by a customer, potential customer, or any other person a device for the purpose of using an e-cigarette product; (b) Providing in exchange for a fee or any other consideration seating within or access to the indoor area of a shop that sells e-cigarettes; or 2 182103v1 (c) Permitting within the indoor area of a shop that sells e-cigarettes the sampling of any e- cigarette product which was not furnished by the shop on the date and at the time the sampling occurs. SECTION 3. Section 3-6-3 A of the Lakeville City Code is amended to provide as follows: A. Application: An application for a license to sell tobacco, tobacco products, or tobacco related devices including electronic delivery devices and e-cigarettes 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, and the business location for which the license is sought. The completed application along with the investigation and application fees shall be submitted to the city administrator or designee for approval. If the city administrator or designee determines that an application is incomplete, he or she shall return the application to the applicant with notice of the deficiencies. SECTION 4. Section 3-6-3 I of the Lakeville City Code is amended to provide as follows: Denials: The issuance or renewal of a license under this section may be denied for cause including: 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 has been convicted within the past five (5) years of possession of narcotics or drug paraphernalia. 4. 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. 5. The applicant fails to provide any information required on the city license application, or provides false or misleading information. 6. The applicant or license holder has outstanding fines, penalties or property taxes owed to the city. SECTION 5. Sections 3-6-3H and 3-6-7 E of the Lakeville City Code are deleted. SECTION 6. Section 3-6-4 of the Lakeville City Code is amended to provide as follows: 3 182103v1 3-6-4: LICENSE AND INVESTIGATION FEES: The license and investigation fees shall be determined by resolution of the city council, and shall be paid at the time of application. SECTION 7. Section 3-6-5 of the Lakeville City Code is amended to provide as follows: 3-6-5: PROHIBITED: A. Prohibited Sales: No person shall sell, offer for sale, give away, furnish, or otherwise deliver any tobacco, tobacco product, or tobacco related device including electronic delivery devices and e-cigarettes: 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 products including electronic delivery devices and e-cigarettes 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 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. C. Smoking lounges and vapor lounges are prohibited. SECTION 8. Section 3-6-7D 2 of the Lakeville City Code is amended to provide as follows: 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: (1) First Violation: The first violation of this chapter shall be punishable by a civil penalty of three hundred dollars ($300.00). 4 182103v1 (2) Second Violation: A second violation of this chapter within any twenty four (24) month period shall be punishable by a civil penalty of five hundred dollars ($500.00) and a suspension of the license for three (3) consecutive days. (3) Third Violation: A third violation of this chapter within any twenty four (24) month period shall be punishable by a civil penalty of eight hundred dollars ($800.00) and a suspension of the license for five (5) consecutive days. (4) Subsequent Violation: A fourth or subsequent violation of this chapter within any thirty six (36) month period may be punishable by revocation of the license. If the license is not revoked, the punishment shall not be less than that provided under subsection D 2(3) of this section. Any licensee whose license is revoked under this section shall not be eligible for renewal for a period of two (2) license years after the revocation. 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. SECTION 9. Title 4 of the Lakeville City Code is amended by adding Chapter 6 to read as follows: CLEAN INDOOR AIR ACT 4-6-1 The following terms and phrases, when used in this Chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: ELECTRONIC DELIVERY DEVICE: means any product containing or delivering nicotine, lobelia, or any other substance intended for human consumption that can be used by a person to simulate smoking in the deliver y of nicotine or any other substance through inhalation of vapor from the product. 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. INDOOR AREA: means all space between a floor and a ceiling that is bounded by walls, doorways, or windows, whether open or closed, covering more than fifty percent (50%) 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. A 0.011 gauge window screen with an 18 by 16 mesh count is not a wall. PUBLIC PLACE: means any enclosed, indoor area used by the general public, including, but not limited to, restaurants; bars; any other food or liquor establishment; retail stores and other commercial establishments; educational facilities other than public schools, as defined in section 5 182103v1 120A.05, subdivisions 9, 11, and 13; hospitals; nursing homes; auditoriums; arenas; meeting rooms; and common areas of rental apartment buildings. 4-6-2 Minnesota Statutes §§ 144.411 to 144.417 are incorporated by reference and are made a part of this Chapter as if set out in full. 4-6-3 The use of electronic delivery devices and allowing their use are prohibited in all public places. SECTION 10. This ordinance shall be effective immediately upon its passage and publication. ADOPTED this 15th day of June, 2015 by the City Council of the City of Lakeville, Minnesota CITY OF LAKEVILLE BY: ______________________________________ Matt Little, Mayor ATTEST: _____________________________________ Charlene Friedges, City Clerk 182119v1 SUMMARY ORDINANCE NO. _____ CITY OF LAKEVILLE DAKOTA COUNTY, MINNESOTA AN ORDINANCE AMENDING TITLES 3 AND 4 OF THE LAKEVILLE CITY CODE CONCERNING TOBACCO AND E-CIGARETTES This ordinance amends Titles 3 and 4 of the City Code concerning tobacco and e- cigarettes. The ordinance prohibits smoking lounges and vapor lounges as those terms are defined in the ordinance and extends the Clean Indoor Air Act to the use of e-cigarettes. The ordinance eliminates the Best Practices Program for the sale of tobacco and amends the application requirements, the basis for denying a license, and the penalties for ordinance violations. A printed copy of the entire ordinance is available for inspection by any person during the City Clerk’s regular office hours. Approved for publication by the City Council of the City of Lakeville, Minnesota, this 15th day of June, 2015 CITY OF LAKEVILLE BY: ________________________________ Matt Little, Mayor ATTEST: ________________________________ Charlene Friedges, City Clerk City of Lakeville Police Department Memorandum To: Mayor and City Council From: Lt. Jason Polinski Copy: City Administrator Deputy Chief Kornmann Date: May 6, 2015 Subject: Tobacco Ordinance – Recommended Changes to Disqualifications for License Approvals and Best Practices Tobacco disqualifiers: The current City Code reads as follows: 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. The Police Department has recognized through recent past tobacco license applications that convictions of narcotic and drug paraphernalia possessions are not taken into account for a denial. With the increase in “e-cig” stores coming into the city, it should also be noted that many of the items sold in these establishments are found later by police and are used for illegal narcotic use, for example marijuana pipes, methamphetamine or crack pipes, etc. The Police Department recommends that additional language be added to this section to include convictions of narcotic possession as well as drug paraphernalia possessions. Tobacco Best Practices: The current City Code reads as follows: Best Practices Program: The best practices program is a program offered by the city of Lakeville with the intent to eliminate sales of tobacco to youth. It is a voluntary program offered to tobacco establishments in the city. The program offers incentives to the licensees to undertake certain practices believed to be helpful in avoiding sales to minors. Establishments participating in the best practices program will benefit. Specially trained officers will provide training to participating license holders. The officers provide a training program targeting illegal sales of tobacco to persons under the age of eighteen (18). Participating license holders will also be given the advantage of a different set of presumptive penalties. Those who choose to participate in the program will have the opportunity to enroll any time during their licensure period and at the time of their license renewal. The licensee will indicate in writing to the Lakeville police department their intent to participate. The first four (4) items in the grid are mandatory. The licensee must choose items from the list of electives to equal a total of sixty (60) points. The city will conduct random compliance checks to verify compliance. The Police Department does not have the resources to offer the training as outlined in the code for tobacco selling establishments. We have found that the compliance checks have returned a favorable outcome as well as a strong deterrent in the amount of sales being conducted to minors. The follow statistics show the results of the latest compliance checks: Licensee Date of Violation Offense Fine/Penalty Kwik Trip #343-Glacier Way Oct. 25, 2014 Sale to minor $150.00 Hideaway Tobacco Oct. 25, 2014 Sale to minor $150.00 When you take into account there are currently 31 establishments within the City of Lakeville, in 2014 there were two violations by these establishments, which equates to a 94% success rate. With that being said, the last best practices training session offered to establishments was several years ago. To conclude, the following factors are taken into account for discontinuation of the Best Practices Tobacco Program: • the money and time spent into training officer(s) to be “qualified” to instruct a best practices program • the time spent training business employees, • the turnover rate of sales clerks selling the tobacco products and, • several years gone by without the training offered; These factors show that there is no justification for the continuation of a program that is already producing a 94% success rate. In conclusion, the Police Department recommends the discontinuation of Best Practices for Tobacco Sales. In addition, staff recommends a change in language that reflects a stricter penalty (beyond criminal charging) for a violation of compliance checks, which we have shown serves as the biggest deterrent for not selling tobacco to minors. VIOLATION BEST PRACTICES NOT BEST PRACTICES PROPOSED FIRST $150 $500 plus 3-day suspension $300 SECOND $400 $750 plus 5-day suspension $500 plus 3-day suspension THIRD $750 plus 3-day suspension $1,000 plus 10-day suspension $800 plus 5-day suspension FOURTH $1,000 plus 5-day suspension Revocation Revocation Subsequent violations occurring within a 24-month period