HomeMy WebLinkAbout13.F.1. Administrative Penalties for Tobacco Violations-Ord. No. 829
I ~. P- I.
CITY OF SHAKOPEE
Memorandum
TO: Mayor and City Council
Mark McNeill, City Administrator
FROM: Judith S. Cox, City Clerk
Mark McNeill, City Administrator
SUBJECT: Administrative Penalties for Tobacco Violations
DATE: January 14, 2010
INTRODUCTION:
Attached is Ordinance No. 829, Fourth Series, for Council discussion.
BACKGROUND:
At the city council meeting on January 5,2010, Mr. Ahyman Shahin of Tobacco Express Inc.
asked the City Council to impose a higher monetary administrative penalty as opposed to a two-
day license suspension for an alleged tobacco violation that occurred on May 28, 2009, during a
tobacco compliance check by the Police Department. Mr. Shahin explained that Tobacco
Express is a tobacco store and would have to close in response to a license suspension as
opposed to a convenience store that also sells other products and would be able to remain open
during a license suspension. He noted that he only owns this one store and that being closed
would cost his employees two days work; in addition, he would be penalized by his landlord for
not being open.
After discussion, the City Council tabled the alleged tobacco violation of Tobacco Express and
directed staffto prepare an amendment to the City Code, Section 6.23, Subdivision 12,
administrative penalties for tobacco violations for "tobacco stores" only, for the first occurrence
within a 36 month period. The City Council directed that the penalty for the first occurrence be
the same as that for the first occurrence for an alcohol violation.
Ordinance No. 829, as drafted, defines a "tobacco store" as a retail establishment used primarily
for the sale of tobacco, tobacco products and tobacco related devices. (Tobacco Express is
primarily a tobacco store that also sells cold pop, candy bars, a few candles and incense.) The
ordinance sets the fine for the first incident for a tobacco store at $1,000 and a one (1 )-day
license suspension for the first incident, provided, however, that $500 ofthe fine and the one (1)-
day license suspension will be suspended for one (1) year on the condition that the licensee has
no further incidents during that one (1) year period. The penalties for the second and additional
incidents during a 36 year period will remain the same as outlined in the city code.
Administrative Penalties for Tobacco Violations
January 11, 2010
Page 2
It should be noted that staff does have concerns about equity issues that will be created by any
policy change which would treat tobacco stores differently than other licensees (in effect,
creating a two-tier system). If the Council does want to change the penalties for tobacco stores,
we would recommend modifying the City Code to make the penalties for all tobacco licensees to
be consistent with that of alcohol license violations.
The City Code, Section 6.23, Tobacco Regulations, Subdivision 15, Amendment. - requires that
"the city clerk shall make reasonable efforts to send the Scott County Health Services and all
tobacco retailers thirty (30) days' mailed notice of the City's intention to consider a substantial
amendment to this Section." If Council desires to adopt Ordinance No. 829, as drafted, or directs
staff to make amendments to it, Council should select a council meeting date at which Council
wishes staff to notify appropriate parties of the intention to amend penalties for tobacco
violations.
(After adoption and publication of Ordinance No. 829, the alleged violation of Tobacco Express
will be placed back on a City Council agenda.)
ALTERNATIVES:
1. Consider Ordinance No. 829 as drafted.
2. Direct staff to make desired changes to Ordinance No. 829, as drafted.
3. Do nothing and keep the penalty for tobacco violations as currently outlined in the city code.
RELATIONSHIP TO VISION:
Clarifying or amending penalties for violations of the tobacco regulations discourages the sale of
tobacco products to minors and contributes to Goal A - active and healthy community.
REQUESTED ACTION:
Discuss whether or not to move forward with changes to the penalties for the first tobacco
violation within a 36 month period; and, if yes, select a council meeting date for that discussion
and direct staff on desired changes.
h:\licenses\ Tobacco Express - Ord. 829
ORDINANCE NO. 829, FOURTH SERIES
AN ORDINANCE OF THE CITY OF SHAKOPEE, MINNESOTA,
AMENDING CITY CODE SECTION 6.23, TOBACCO, TOBACCO PRODUCTS
AND TOBACCO RELATED DEVICES, SUBD. 2. DEFINITIONS AND INTERPRETATIONS
AND SUBD. 12. ADMINISTRATIVE PENAL TIES
THE CITY COUNCIL OF THE CITY OF SHAKOPEE, MINNESOTA, DOES ORDAIN:
Section 1. City Code Chapter 6, Other Business Regulation and Licensing, Section 6.23, Tobacco,
Tobacco Products and Tobacco Related Devices, Subd. 2. Definitions and Interpretations is hereby
amended by adding the language which is underlined.
Subd. 2. Definitions and Interpretations.
L. Tobacco Store. "Tobacco Store" means any retail establishment used primarily for the sale
of tobacco. tobacco products and tobacco related devices.
Section 2. City Code Chapter 6, Other Business Regulation and Licensing, Section 6.23, Tobacco,
Tobacco Products and Tobacco Related Devices, Subd. 12, Administrative Penalties is hereby
amended by adding the language which is underlined.
Subd. 12. Administrative Penalties.
C. Tobacco Store. The first incident of any licensee, deemed to be a tobacco store, shall be a
$1,000 fine and a one (I)-dav license suspension for the first incident. provided, however, that
$500 of the fine and the one (1 )-day license suspension will be suspended for one ( 1) year on
the condition that the licensee has no further incidents of furnishing or selling tobacco, tobacco
products and tobacco related devices to a minor during that one (1 )-year period. Additional
incidents shall be penalized as outlined in Subd. 12.A. above.
Section 3. Effective Date. This ordinance becomes effective from and after its passage and
publication.
Adopted in session of the City Council of the City of Shakopee,
Minnesota, held this day of ,2010.
Mayor of the City of Shakopee
ATTEST:
City Clerk
~"tC:C> 96.23
F. Continued' lery day in which a violation occurs or
continues, s
G. Prosecutiol hall prohibit the City from seeking
prosecution lur any allt::9~ VlOICluun.
Subd.12. Administrative Penalties.
A. Licensees. Any licensee who furnishes, sells or attempts to sell tobacco, tobacco
products or tobacco related devices to a minor or whose employee furnishes, sells
or attempts to sell tobacco, tobacco products or tobacco related devices to a minor
shall be penalized as follows:
First Incident $200 fine + 2 day license suspension
Second Incident Within 36 Months
of First Incident $500 fine + 5 day ficense suspension
Third or Subsequent Incident
Within 36 Months of First
Incident $1,000 fine + 30 day license suspension
Or revocation
The penalty for a first or second incident shall be imposed and administered by the
City Administrator upon an admission by the licensee that the licensee furnished,
sold, or attempted to sell tobacco, tobacco products or tobacco related devices to a
minor. The penalties for a third or subsequent incident may only be imposed by
the City Council.
Any revoked license shall not be eligible for reinstatement for at least twelve (12)
months. (Amended, Ord. 633, July 18. 2002)
B. Other Individuals. Any individual who sells tobacco, tobacco products or tobacco
related devices to a minor shall be charged an administrative penalty of $50.00,
subject to the right to a hearing before the City Council as provided in Subdivision
11 of this Section. Nothing in this Section shall prohibit the City or other jurisdiction
from seeking criminal prosecution for any alleged violation of this Section by any
individual other than a licensee or employee of a licensee.
Subd. 13. Criminal Penalties.
A. It shall be a gross misdemeanor for anyone to sell tobacco, tobacco products or
tobacco-related devices to a minor.
B. It shall be a misdemeanor for anyone to furnish tobacco, tobacco products or
tobacco-related devices to a minor.
C. It shall be a petty misdemeanor for a minor to smoke, chew. sniff or oijlerwise use
tobacco. tobacco products or tobacco-related devices.
D. It shall be a petty misdemeanor for a minor to have in minor's possession tobacco,
tobacco products or tobacco-related devices. This provision does not apply to a
minor who is an employee of a license holder while stocking tobacco, tobacco
products or tobacco-related devices or to a minor lawfully involved in a compliance
check.
page r8llised in 2006
621
Suba. 7. Penalities. (Added, Ord. 621, [\llarch 2'1, 2002) A Le-o ~ 0 /....
A. The purpose of this subdivision is to establish a uniform set of penalties for
licensees who furnish or sell alcoholic beverages to minors. The penalties for a
first or second incident shall be imposed and administered by the City
Administrator upon an admission by the licensee that the licensee furnished or sold
an alcoholic beverage to a minor, The penalties for a third or fourth incident mal'
only be imposed by the City Council. (Amended, Ord, 634, July 18, 2002)
B. The following penalties shall be imposed if a licensee furnishes or sells alcoholic
beverages to a minor: (Amended, Ord, 634, July 18, 2002)
1. A $1,000 fine and a one (1 )-day license suspension for the first incident,
provided, however, that $500 of the fine and the one ( 1 )-day license
suspension will be suspended for one (1) year on the condition that the
licensee has no further incidents of furnishing or selling alcoholic
beverages ta'minor during that one (1 hear period; (Amended, Ord. 634,
July 18, 2002)
2. A $1,500 fine and a five (5)-day license suspension for a second incident
occurring within three (3) years of the date of the previous incident;
3. A $2,000 fine and a ten (10)-day license suspension for a third incident
occurring within three (3) years of the dates of the previous two (2)
incidents;
4. A $2,000 fine and a suspension of the license for a minimum of thirty (30)
days or a revocation of the license for a fourth or subsequent incident
occurring within three (3) years of the dates of the previous incidents.
(Amended, Ord. 634, July 18, 2002)
C. All multiple-day license suspensions shall run consecutively beginning at 12:01
a.m. on the first day of the suspension period and ending at midnight on the last
day of the suspension period.
O. Any person whose license to sell alcoholic beverages is revoked under this
subdivision may not apply for a new license for at least thirty (30) days after the
effective date of the revocation.
E. No suspension or revocation shall be imposed by either the City Councilor the City
Administrator until the licensee has been afforded an opportunity for a hearing in
accordance with Section 5.02, Subdivision 4 of this Chapter.
SEC. 5.09. FINANCIAL RESPONSIBILITY OF LICENSEES.
Subd. 1. Proof. No 3.2 percent malt liquor, wine or liquor license shall be issued or renewed
unless and until the applicant has provided proof of financial responsibility imposed by ",Minnesota
Statutes by filing: (Amended, Ord. 779, July 12,2007) .
A. Evidence of financial responsibility as required by State law is fumisheEl: by filing a
liability insurance policy, a certificate of such insurance or a binder for such
coverage in the fOnTI and in the amount and conditioned all as required by
Minnesota Statutes, Section 340A409, Subdivision 1 (1) in force and effect at the
time of filing the license application.
B. A bond of a surety company with minimum coverages as provided in
Subparagraph A of this Subdivision; or,