[HISTORY: Adopted by the Council of the City
of Breckenridge 1-13-2020 by Ord.
No. 511.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 170,
Tobacco, adopted 10-2-1972 as Art. III of Ord. No. 265, as amended.
Because the City of Breckenridge 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 18 violates both state and federal laws, this chapter is intended
to regulate the sale of these 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.
Except as may otherwise be provided or clearly implied by context,
all terms are given their commonly accepted definitions. For the purpose
of this chapter, the following definitions apply unless the context
clearly indicates or requires a different meaning:
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.
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,
Subdivision 3, as may be amended from time to time.
The system the City uses to investigate and ensure that those
authorized to sell licensed products are following and complying with
the requirements of this chapter. Compliance checks involve the use
of persons under the age of 21 who purchase or attempt to purchase
licensed products. Compliance checks may also be conducted by the
City or other units of government for educational, research, and training
purposes or for investigating or enforcing federal, state, or local
laws and regulations relating to licensed products.
Any product containing or delivering nicotine, lobelia, or
any other substance, whether natural or synthetic, 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.
All space between a floor and a ceiling that is bounded by
walls, doorways, or windows, whether open or closed, covering more
than 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 standard window screen (0.011 gauge with an eighteen-by-sixteen
mesh count) is not considered a wall.
The term that collectively refers to any tobacco, tobacco-related
device, electronic delivery device, or nicotine or lobelia delivery
product.
The common term used to refer to single or individually packaged
cigars or cigarettes, or any other licensed product that has been
removed from its intended retail packaging and offered for sale. Loosies
does not include individual cigars with a retail price, after any
discounts are applied and before any sales taxes are imposed, of at
least $2.60 per cigar.
Any form of business that is operated out of a kiosk, truck,
van, automobile or other type of vehicle or transportable shelter
and not a fixed address storefront or other permanent type of structure
authorized for sales transactions.
Any product containing or delivering nicotine or lobelia
intended for human consumption, or any part of such a product, that
is not a tobacco or an electronic delivery device as defined in this
section. Nicotine or lobelia delivery product does not include any
product that has been approved or otherwise certified for legal sale
by the United States Food and Drug Administration as a tobacco-cessation
product, a tobacco-dependence product, or for other medical purposes,
and is being marketed and sold solely for that approved purpose.
Any natural person, partnership, firm, joint stock company,
corporation, or other legal entity, including an employee of a legal
entity.
Any place of business where licensed products are available
for sale to the general public. The phrase includes but is not limited
to grocery stores, tobacco products shops, convenience stores, gasoline
service stations, bars, and restaurants.
Any transfer of goods for money, trade, barter or other consideration.
The open display of licensed products in any manner where
any person has access to the licensed products without the assistance
or intervention of the licensee or the licensee's employee.
Inhaling, exhaling, burning, or carrying any lighted or heated
cigar, cigarette, or pipe, or any other lighted or heated product
containing, made, or derived from nicotine, tobacco, marijuana, or
other plant, whether natural or synthetic, that is intended for inhalation.
Smoking also includes carrying or using an activated electronic delivery
device.
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
but not limited to cigarettes; cigars; cheroots; stogies; perique;
granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco;
snuff; snuff flour; 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.
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.
Any mechanical, electric or electronic, or other type of
device that dispenses licensed products upon the insertion of money,
tokens, or other form of payment directly into the machine by the
person seeking to purchase the licensed product.
Any facility with residents, customers, visitors, or inhabitants
of which 25% or more are regularly under the age of 21 or that primarily
sells, rents, or offers services or products that are consumed or
used primarily by persons under the age of 21. Youth-oriented facility
includes, but is not limited to, schools, playgrounds, recreation
centers, and parks.
License required. No person shall sell or offer to sell any
licensed product without first having obtained a license to do so
from the City.
A.Â
Application. An application for a license to sell licensed products
must be made on a form provided by the City. The application must
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 sought, and any additional information the
City deems necessary. Upon receipt of a completed application, the
City Administrator will forward the application to the City Council
for action at its next regularly scheduled meeting. If the City Administrator
determines that an application is incomplete, it will be returned
to the applicant with notice of the information necessary to make
the application complete.
B.Â
Action. The City Council may approve or deny the application for
a license, or it may delay action for a reasonable period of time
to complete any investigation of the application or the applicant
deemed necessary. If the City Council approves the application, the
City Administrator will issue the license to the applicant. If the
City Council denies the application, notice of the denial will be
given to the applicant along with notice of the applicant's right
to appeal the decision.
C.Â
Term. All licenses issued are valid from date of issuance until December
31 of the issuing year.
D.Â
Revocation or suspension. Any license issued may be suspended or revoked following the procedures set forth in § 170-11.
E.Â
Transfers. All licenses issued are valid only on the premises for
which the license was issued and only for the person to whom the license
was issued. The transfer of any license to another location or person
is prohibited.
F.Â
Moveable place of business. No license will be issued to a moveable
place of business. Only fixed-location businesses are eligible to
be licensed.
G.Â
Display. All licenses must be posted and displayed at all times in
plain view of the general public on the licensed premises.
H.Â
Renewals. The renewal of a license issued under this chapter will
be handled in the same manner as the original application. The request
for a renewal must be made at least 30 days, but no more than 60 days,
before the expiration of the current license.
I.Â
Issuance as privilege and not a right. The issuance of a license
is a privilege and does not entitle the license holder to an automatic
renewal of the license.
J.Â
Proximity to youth-oriented facilities. No license will be granted
to any person for a retail establishment location that is within 300
feet of a youth-oriented facility, as measured by the shortest line
from the property line of the space to be occupied by the proposed
licensee to the nearest property line of a youth-oriented facility.
This restriction does not apply to an existing license holder who
has been licensed to sell licensed products in that same location
for at least one year before the date this section was enacted into
law.
K.Â
Smoking prohibited. Smoking, including smoking for the purpose of
the sampling of licensed products, is prohibited within the indoor
area or within 25 feet from any external door, wall, or window of
any retail establishment licensed under this chapter. Smoking for
the purpose of sampling licensed products is also prohibited in these
areas.
L.Â
Samples prohibited. No person shall distribute samples of any licensed
product free of charge or at a nominal cost.
No license will be issued under this chapter until the appropriate
license fees are paid in full. The fees will be established by the
City's fee schedule and may be amended from time to time.[1]
A.Â
Grounds for denying the issuance or renewal of a license include,
but are not limited to, the following:
(1)Â
The applicant is under 21 years of age.
(2)Â
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 licensed products.
(3)Â
The applicant has had a license to sell licensed products suspended
or revoked within the preceding 12 months of the date of application.
(4)Â
The applicant fails to provide any of the information required on
the licensing application, or provides false or misleading information.
(5)Â
The applicant is prohibited by federal, state, or other local law,
ordinance, or other regulation from holding a license.
B.Â
Except as may otherwise be provided by law, the existence of any
particular ground for denial does not compel the City to deny the
license.
C.Â
If a license is mistakenly issued or renewed to a person, it will
be revoked upon the discovery that the person was ineligible for the
license under this chapter. The City will provide the license holder
with notice of the revocation, along with information on the right
to appeal.
A.Â
In general. No person shall sell or offer to sell any licensed product:
(1)Â
By means of any type of vending machine.
(2)Â
By means of loosies as defined.
(3)Â
Containing opium, morphine, jimson weed, bella donna, strychnos,
cocaine, marijuana, or other deleterious, hallucinogenic, toxic, or
controlled substances except nicotine and other substances found naturally
in tobacco or added as part of an otherwise lawful manufacturing process.
It is not the intention of this provision to ban the sale of lawfully
manufactured cigarettes or other products subject to this chapter.
(4)Â
By any other means, to any other person, on in any other manner or
form prohibited by federal, state or other local law, ordinance provision,
or other regulation.
B.Â
Legal age. No person shall sell any licensed product to any person
under the age of 21.
(1)Â
Age verification. Licensees must verify by means of government-issued
photographic identification that the purchaser is at least 21 years
of age. Verification is not required for a person over the age of
30. That the person appeared to be 30 years of age or older does not
constitute a defense to a violation of this subsection.
(2)Â
Signage. Notice of the legal sales age and age verification requirement
must be posted prominently and in plain view at all times at each
location where licensed products are offered for sale. The required
signage, which will be provided to the licensee by the City, must
be posted in a manner that is clearly visible to anyone who is or
is considering making a purchase.
C.Â
Self-service sales. No person shall allow the sale of licensed products
by any self-service displays where the customer may have access to
those items without having to request the item from the licensee or
the licensee's employee and where there is not a physical exchange
of the licensed product from the licensee or the licensee's employee
to the customer. All licensed products must be stored behind the sales
counter, in another area not freely accessible to customers, or in
a case or other storage unit not left open and accessible to the general
public. Any retailer selling licensed products at the time this chapter
is adopted must comply with this section within 90 days of the effective
date of this chapter.
D.Â
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 City, a licensee
must provide a copy of the certificate of compliance or full laboratory
testing report for the packaging used.
All licensees are responsible for the actions of their employees
in regard to the sale, offer to sell, and furnishing of licensed products
on the licensed premises. The sale, offer to sell, or furnishing of
any licensed product by an employee shall be considered an act of
the licensee. Nothing in this section shall be construed as prohibiting
the City from also subjecting the employee to any civil penalties
that the City deems to be appropriate under this chapter, state or
federal law, or other applicable law or regulation.
All licensed premises must be open to inspection by law enforcement
or other authorized City officials during regular business hours.
From time to time, but at least once per year, the City will conduct
compliance checks. In accordance with state law, the City will conduct
at least one compliance check that involves the participation of a
person between the ages of 15 and 17 and at least one compliance check
that involves the participation of a person between the ages of 18
and 20 to enter licensed premises to attempt to purchase licensed
products. Prior written consent is required for any person under the
age of 18 to participate in a compliance check. Persons used for the
purpose of compliance checks will be supervised by law enforcement
or other designated personnel.
Unless otherwise provided, the following acts are an administrative
violation of this chapter:
A.Â
Prohibited furnishing or procurement. It is a violation of this chapter
for any person 21 years of age or older to purchase or otherwise obtain
any licensed product on behalf of a person under the age of 21. It
is also a violation for any person 21 years of age and older to coerce
or attempt to coerce a person under the age of 21 to illegally purchase
or attempt to purchase any licensed product.
B.Â
Use of false identification. It is a violation of this chapter for
any person under the age of 21 to use any form of false identification,
whether the identification is that of another person or has been modified
or tampered with, to represent an age older than the actual age of
the person using that identification in order to purchase licensed
products.
A.Â
Religious, spiritual, or cultural ceremonies or practices. Nothing
in this chapter prevents the provision of tobacco or tobacco-related
devices to any person as part of an indigenous practice or a lawfully
recognized religious, spiritual, or cultural ceremony or practice.
B.Â
Reasonable reliance. It is an affirmative defense to a violation
of this chapter for a person to have reasonably relied on proof of
age as described by state law.
A.Â
Violations.
(1)Â
Notice. A person violating this chapter may be issued, either personally
or by mail, a citation from the City that sets forth the alleged violation
and that informs the alleged violator of his or her right to a hearing
on the matter and how and where a hearing may be requested, including
a contact address and phone number.
(2)Â
Appeal hearings.
(a)Â
Upon issuance of a citation, a person accused of violating this
chapter may request in writing an appeal hearing on the matter. Appeal
hearing requests must be made within 10 business days of the issuance
of the citation and delivered to the City Administrator or other designated
City officer. Failure to properly request an appeal hearing within
10 business days of the issuance of the citation will terminate the
person's right to an appeal hearing.
(c)Â
The City Administrator or other designated City officer will
set the time and place for the appeal hearing. Written notice of the
appeal hearing time and place will be mailed or delivered to the accused
violator at least 10 business days prior to the hearing.
(3)Â
Hearing officer. The hearing officer will be an impartial employee
of the City and shall be the City Administrator, or the City Administrator's
designated representative, unless the City Administrator determines
that another impartial person be retained by the City to conduct the
hearing.
(4)Â
Decision. A decision will be issued by the hearing officer within
10 business days of the hearing. If the hearing officer determines
that a violation of this chapter did occur, that decision, along with
the hearing officer's reasons for finding a violation and the
penalty to be imposed, will be recorded in writing, a copy of which
will be provided to the City and the accused violator by in-person
delivery or mail as soon as practicable. If the hearing officer finds
that no violation occurred or finds grounds for not imposing any penalty,
those findings will be recorded and a copy will be provided to the
City and the acquitted accused violator by in-person delivery or mail
as soon as practicable. The decision of the hearing officer is final.
(6)Â
Continued violation. Each violation, and every day in which a violation
occurs or continues, shall constitute a separate offense.
B.Â
Administrative penalties.
(1)Â
Licensees. Any licensee found to have violated this chapter, or whose
employee violated this chapter, will be charged an administrative
fee per the fee schedule that will be amended from time to time by
resolution of the City Council.[3] Upon the third violation within a twenty-four-month period,
the license will be suspended for a period of not less than 30 consecutive
days. Upon a fourth violation within a twenty-four-month period, the
license will be revoked.
(2)Â
Statutory penalties. If the administrative penalty authorized to
be imposed by Minn. Stat. § 461.12, as it may be amended
from time to time, differs from that established in this section,
then the higher penalty will prevail.
C.Â
Misdemeanor prosecution. Nothing in this section prohibits the City
from seeking prosecution as a misdemeanor for any alleged violation
of this chapter by a person 21 years of age or older.
If any section or provision of this chapter is held invalid,
such invalidity will not affect other sections or provisions that
can be given force and effect without the invalidated section or provision.
This chapter becomes effective on the date of its publication,
or upon the publication of a summary of the ordinance as provided
by Minn. Stat. § 412.191, Subdivision 4, as it may be amended
from time to time, which meets the requirements of Minn. Stat. § 331A.01,
Subdivision 10, as it may be amended from time to time.
