HomeMy WebLinkAboutOrd. 545 - Amendment Title 3CITY OF ANDOVER
COUNTY OF ANOKA
STATE OF MINNESOTA
ORDINANCE NO. 545
AN ORDINANCE AMENDING TITLE 3, CHAPTER 2, SALE OF TOBACCO
RELATED PRODUCTS AND ADDING TITLE 3, CHAPTER 10, OF THE CITY
CODE RELATING TO ADMINISTRATIVE HEARINGS IN THE CITY OF
ANDOVER
THE CITY COUNCIL OF THE CITY OF ANDOVER, MINNESOTA, ORDAINS AS
FOLLOWS:
SALE OF TOBACCO RELATED PRODUCTS
SECTION:
3-2-1:
Definitions
3-2-2:
License Required
3-2-3
Licenses Available
3-2-34:
Application For License; Issuance
3-2-45:
License Fee; Expiration and Non -transferability Of License
3-2-56:
Display of License
3-2-67:
Conditions Of License; Prohibited Sales
3-2-78:
Self -Service Sales
3-2-89:
Compliance Checks
3-2-910:
Suspension Or Revocation Of License
3-2-1011:
Administrative Penalties
3-2-1412:
Misdemeanor Violation; Penalty
3-2-1: DEFINITIONS: The following words and terms, when used in this chapter
shall have the following meanings unless the context clearly indicates otherwise:
ADMINISTRATIVE
HEARING: The processes and procedures as set forth in Title 3,
Chapter 10 of the Andover City Code.
ELECTRONIC DELIVERY
DEVICE: 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 delivery 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. (Amended Ord. 445,
12/16/14)
MOVEABLE PLACE
OF BUSINESS: A business whose physical location is not permanent
or is capable of being moved or changed.
PERSON: Shall include natural persons, partnerships, firms,
corporations and associations.
TOBACCO RELATED
PRODUCTS: Cigarettes; cigars; cheroots; stogies; perique,
granulated, plug cut, ready, rubbed and other
smoking tobacco; snuff, snuff flowers, cavendish, plug
and twist tobacco; fine cut and other chewing
tobacco; shorts, refuse, scripts, clippings, cuttings,
and sweepings of tobacco prepared in such a manner
as to be suitable for chewing, sniffing or smoking in a
pipe; cigarette papers or pipes for smoking.
(Amended Ord. 227, 8-5-1997)
3-2-2: LICENSE REQUIRED: No person shall directly or indirectly keep for retail
sale, sell at retail, dispense, or give away in a retail setting any tobacco related
product or electronic delivery device at any place in the city without first obtaining
a license from the city. (Amended Ord. 227, 8-5-1997; Amended Ord. 445,
12/16/14)
3-2-3: LICENSES AVAILABLE: There shall be no more than seventeen (17)
licenses issued in any one (1) year. Establishments renewing a current license
shall have priority over new Establishments requesting a new license provided:
(1) The renewing establishment complies with the requirements for
renewal under this Chapter; and
(2) There have been no violations under this Chapter by the renewing
establishment.
3-2-34: APPLICATION FOR LICENSE; ISSUANCE: Application for a license
shall be made to the City Clerk on a form supplied by the city. The application
shall state the full name and address of the applicant, the location of the building
and the part to be used by the applicant under license, the kind of business
conducted at such location, and other information as shall be required as stated
in the application form or by the City Clerk. The completed application shall be
presented to the City Council for its consideration and, if granted, shall be issued
by the City Clerk upon payment of the required fee. (Amended Ord. 227, 8-5-
1997)
3-2-45: LICENSE FEE; EXPIRATION AND NONTRANSFERABILITY OF
LICENSE: The fee for every such license shall be in the amount as set
forth by ordinance'. Licenses shall be valid for one year and shall expire on
December 31. Licenses shall not be transferable from one person to another.
(Amended Ord. 227, 8-5-1997; amd. 2003 Code)
3-2-56: DISPLAY OF LICENSE: Every license shall be kept conspicuously
posted at the location for which the license is issued and shall be exhibited to any
person upon request. (Amended Ord. 227, 8-5-1997)
3-2-67: CONDITIONS OF LICENSE; PROHIBITED SALES:
A. Regulations: The following regulations shall apply to the sale of tobacco
related products or electronic delivery device (Amended Ord. 445,
12/16/14):
1. No license shall be issued to a person not of good moral character.
2. No license shall be issued to an applicant for sale of tobacco related
products or electronic delivery device at any place other than the
licensee's established place of business. (Amended Ord. 445, 12/16/14)
3. No license shall be issued for the sale of tobacco related products or
electronic delivery device at a moveable place of business. (Amended
Ord. 445, 12/16/14)
4. No person shall sell or give away any tobacco related products or
electronic delivery device to any person below the age as required by
Minnesota statutes and/or the United States Food and Drug
See subsection 1-7-3A of this code.
Administration. (Amended Ord. 445, 12/16/14; Amended Ord. 500,
1 /21 /20)
5. No tobacco related products or electronic delivery device may be sold
outside the location or area covered by the license. (Amended Ord. 445,
12/16/14)
B. Vending Machines: No person shall sell, dispense, or give away any
tobacco related product or electronic delivery device through the use of a
vending machine or similar automated dispensing device. This subsection
does not apply to vending machines in facilities that cannot be entered at
any time by persons younger than eighteen -twenty-one (�21) years of
age. (Amended Ord. 227, 8-5-1997; amd. 2003 Code; Amended Ord. 445,
12/16/14)
3-2-78: SELF-SERVICE SALES:
A. 1. Except in adult only facilities, no licensee shall offer for sale single
packages of cigarettes or smokeless tobacco in open displays that are
accessible to the public without the intervention of a store employee.
(Amended Ord. 227, 8-5-1997; amd. 2003 Code)
2. The self-service restriction described in this subsection shall not apply
to retail stores that derive at least ninety percent (90%) of their revenue
from tobacco and tobacco related products or electronic delivery device
and which cannot be entered at any time by persons younger than twenty-
one (21) years of age. (Amended Ord. 445, 12/16/14; Amended Ord. 500,
1 /21 /20)
B. No person shall sell, dispense or give away any tobacco related product or
electronic delivery device through self-service merchandising. a
ft. W. 21�MEM2F= Z
3-2-99: COMPLIANCE CHECKS: The city shall conduct unannounced
compliance checks at least once each calendar year at each location where
tobacco or electronic delivery device is sold to test compliance with Minnesota
Statutes Section 609.685. Compliance checks shall utilize minors over the age of
fifteen (15), but under the age of twenty-one (21), who, with the prior written
consent of a parent or guardian, attempt to purchase tobacco or electronic
delivery device under the direct supervision of a law enforcement officer or an
employee of the city. (Amended Ord. 227, 8/5/1997; amd. 2003 Code; Amended
Ord. 445, 12/16/14; Amended Ord. 500, 1/21/20)
3-2-910: SUSPENSION OR REVOCATION OF LICENSE: Upon finding that a
licensee of any license granted pursuant to this chapter has failed to comply with
any applicable statutes, regulation or ordinance relating to the sale or use of
tobacco related products or electronic delivery device, the City Council may
either revoke or suspend the license. Every such license may be revoked by the
City Council for violating any of the provisions stated in this chapter. (Amended
Ord. 227, 8/5/1997; Amended Ord. 445, 12/16/14)
3-2-4-011: ADMINISTRATIVE PENALTIES:
A. If a licensee or employee of a licensee sells tobacco or electronic delivery
device to a person under the age of twenty-one (2 1 ) years, or violates any
other provision of this chapter, the licensee shall be charged an
administrative penalty of seVeRty fiYe dn"^«two hundred fifty dollars
($7- 250.00).
must be 'mnncn.J Fn. For a second violation at the same location within
twenty-four (24) months after the initial violation an administrative penalty
of five hundred dollars ($500.00) must be imposed and the licensee's
authority to sell tobacco or electronic delivery devices at that location must
be suspended for not less than three (3) nor more than seven (7) days.
For a third violation at the same location within twenty-four (24) months
after the initial violation, an administrative penalty of twe hundred fiftyone
thousand dollars ($2-591, 000.00) must be imposed, and the licensee's
authority to sell tobacco or electronic delivery device at that location must
be suspended for not less than seven (7) nor more than thirty (30) days.
No suspension or penalty may take effect until the licensee has received
notice, served personally or by mail, of the alleged violation and an
opportunity for an administrative hearing before a ne•G ^, theFized h.,
mi •of he ;n WFitiRg. (Amended Ord. 445, 12/16/14; Amended Ord. 500,
1 /21 /20)
B. An individual who sells tobacco or electronic delivery device to a person
under the age of twenty-one (21) years must be charged an administrative
penalty of fifty dollars ($50.00). No penalty may be imposed until the
individual has received notice, served personally or by mail, of the alleged
violation and an opportunity for a hearing before a person authorized by
the city to conduct the hearing. A decision that a violation has occurred
must be in writing. (Amended Ord. 445, 12/16/14; Amended Ord. 500,
1 /21 /20)
C. It is an affirmative defense to the charge of selling tobacco or electronic
delivery device to a person under the age of twenty-one (21) years in
violation of this chapter that the licensee or individual making the sale
relied in good faith upon proof of age as follows (Amended Ord. 445,
12/16/14; Amended Ord. 500, 1/21/20):
1. A valid driver's license or identification card issued by the state of
Minnesota, another state, or a province of Canada, and including the
photograph and date of birth of the licensed person;
2. A valid military identification card issued by the United States
Department of Defense;
3. A valid passport issued by the United States; or
4. In the case of a foreign national, by a valid passport. (Amended Ord.
227, 8-5-1997; amd. 2003 Code)
3-24412: MISDEMEANOR VIOLATION; PENALTY: Any person who shall
violate any provision of this chapter shall be guilty of a misdemeanor and shall be
punished as defined by state law. (Amended Ord. 227, 8-5-1997)
CHAPTER 10
ADMINISTRATIVE HEARINGS
SECTION:
3-10-1:
Requesting a Hearing
3-10-2:
Hearing Officer
3-10-3:
The Hearing
3-10-4:
Authority of Hearing Officer
3-10-5:
Hearing Officer's Decision
3-10-6:
City Council Review
3-10-7:
Additional Penalties
3-10-8:
Judicial Review
3-10-1: REQUESTING A HEARING
A. Any person contesting an administrative penalty, suspension or revocation
of a license issued pursuant to this Title may, within 10 days of the time of
issuance of the administrative penalty, suspension or revocation, request
a hearing before a hearing officer.
B. Any request for a hearing before a hearing officer shall be made in writing
on a form provided by the city for such a request and be either delivered
personally to the city at city hall or mailed to the city by United States first
class mail, postage prepaid. If mailed, the request must be received by
the city within the prescribed 10 days.
C. The hearing shall be held at city hall within 30 days of receipt of a timely
submitted request for a hearing.
D. Failure to attend the hearing constitutes a waiver of the violator's rights to
an administrative hearing. A hearing officer may waive this result upon
good cause shown. A determination of good cause shall be made by the
hearing officer, but specifically does not include forgetfulness or intentional
delay.
E. A hearing request filing fee shall be paid simultaneously with the filing of
the hearing request, in the amount adopted by ordinance by the city
council.
F. In cases where an administrative penalty, suspension or revocation of a
license decision is upheld by the hearing officer, in addition to any
administrative penalty or other conditions imposed by the hearing officer,
the offender shall be responsible for payment of the costs of the hearing,
including the hearing officer's fees, in an amount not to exceed $1,000.
3-10-2: HEARING OFFICER: The city council may periodically approve a
list of lawyers from which the city administrator will randomly select a hearing
officer, who must not be a city employee, to hear and determine a matter for
which a hearing is requested.
3-10-3: THE HEARING:
A. Notice of the hearing must be served in person or by mail on the alleged
violator and/or owner of the property at least ten days prior to the hearing
date, unless a shorter time period is accepted by all parties.
B. At the hearing, the parties will have the opportunity to present testimony
and question any witnesses, but strict rules of evidentiary procedure will
not apply.
C. The hearing officer may record the hearing and receive testimony and
exhibits.
D. The hearing officer must receive and give weight to the evidence
presented, including reliable hearsay evidence that possesses probative
value commonly accepted by reasonable and prudent people in the
conduct of their affairs.
3-10-4: AUTHORITY OF HEARING OFFICER:
A. The hearing officer has the authority to determine whether a violation has
occurred, or is occurring, and, upon his/her findings, may:
1. Uphold the Administrative Penalty, suspension or revocation of the
license;
2. Modify the Administrative Penalty, suspension or revocation of the
license;
3. Overturn the Administrative Penalty, suspension or revocation of the
license; or
4. Impose any combination of the foregoing provisions that the hearing
officer deems to be reasonable.
B. In rendering their decision, the hearing officer may consider any or all of
the following factors:
1. The frequency of reoccurrence of the violation;
2. The seriousness of the violation;
3. The history of the violation;
4. The violator's conduct after issuance of the notice of hearing;
5. The good faith effort by the violator to comply;
6. The impact of the violation upon the community; and
7. Any other factors the hearing officer deems appropriate to achieve a
just result.
3-10-5: HEARING OFFICER'S DECISION:
a. The hearing officer's decision must be in writing.
b. The decision of the hearing officer is final without any further right
of administrative appeal.
c. The hearing officer's decision may be appealed to the city council
by submitting a request in writing to the city clerk within seven (7)
days after issuance of the hearing officer's decision.
3-10-6: CITY COUNCIL REVIEW:
A. Appeal of hearing officer's decision. The hearing officer's decision in any
of the following matters may be appealed by a party to the city council for
administrative review:
1. An alleged failure to obtain a permit, license, or other approval from
the city council as required by city ordinance;
2. An alleged violation of a permit, license, or other approval, or the
conditions attached to the permit, license, or approval, that was
granted by the city council; and
3. An alleged violation of regulations governing a person or entity who
has received a license granted by the city council.
B. Appeal to the city council. To appeal to the city council, the party seeking
the appeal must submit a request in writing to the city clerk within seven
(7) days after the issuance of the hearing officer's decision. The appeal
must be accompanied by a fee as established by the city council.
C. Hearing by the city council. The appeal will be heard by the city council
after notice served in person or by registered mail at least ten (10) days in
advance of the hearing. The parties to the hearing will have an opportunity
to present oral or written arguments regarding the hearing officer's
decision.
D. City council decision. The city council must consider the record, the
hearing officer's decision, and any additional arguments before making a
determination. The city council is not bound by the hearing officer's
decision, but may adopt all or part of the hearing officer's decision. The
city council's decision must be in writing.
E. Finding of violation and imposition of penalty. If the city council makes a
finding of a violation, it may:
1. Uphold the hearing officer's decision;
2. Modify the hearing officer's decision;
3. Overturn the hearing officer's decision; or
4. Impose any combination of the foregoing provisions that the city
council deems to be reasonable.
3-10-7: ADDITIONAL PENALTIES: Failure to pay an Administrative
Penalty within the time allowed is grounds for suspending or revoking a
license related to the violation and/or the property upon which the violation
occurred.
3-10-8: JUDICIAL REVIEW: An aggrieved party may obtain judicial review
of the decision of the hearing officer or the city council by proceeding under a writ
of certiorari in district court.
All other Titles, Chapters and Sections of the City Code shall remain as written
and adopted by the Andover City Council.
Adopted by the City Council of the City of Andover this 20th day of December,
2022.
ATTEST:
Mic elle Hartner, City Clerk
TITLE 3
BUSINESS AND LICENSE REGULATIONS
Subject Chapter
LiquorControl .....................................................................1
3.2 Percent Malt Liquor....................................................1A
Intoxicating Liquor...........................................................
1B
Outdoor Parties...............................................................
1 C
Sale Of Tobacco Related Products .......................................
2
Construction Activities..........................................................
3
Pawnbrokers, Secondhand Goods Dealers And
Precious Metal Dealers......................................................4
Transient Merchants, Peddlers, Solicitors And
Canvassers........................................................................5
Massage Businesses And Services......................................6
Adult Use Businesses...........................................................7
Vehicle Sales Business........................................................8
Cannabinoid Products..........................................................9
Administrative Hearings......................................................10
CITY OF ANDOVER
COUNTY OF ANOKA
STATE OF MINNESOTA
ORDINANCE NO. 545 SUMMARY
AN ORDINANCE ORDAINING CITY CODE TITLE 3, CHAPTER 2: SALE OF TOBACCO RELATED
PRODUCTS AND ADDING TITLE 3, CHAPTER 10, ADMINISTRATIVE HEARINGS IN THE CITY
OF ANDOVER
STATUTORY AUTHORIZATION AND POLICY
Statutory Authorization
This ordinance amendment is adopted pursuant to the authorization and policies contained in Minnesota
Statute 412.
Policy
The purpose of the Ordinance is to protect the public health, safety, morals and welfare of residents of the City
of Andover. The amendment limits the number of tobacco licenses issued in any one year and adds
administrative hearings in the City of Andover.
GENERAL PROVISIONS AND DEFINITIONS
Jurisdiction
The provisions of this ordinance shall apply to the City of Andover.
Enforcement
The City Administrator or his/her designee shall have the authority to enforce the provisions of this
ordinance.
Interpretation
Interpretation of the provisions of this ordinance shall be held to be the minimum requirements and shall be
liberally construed in the favor of the governing body.
A printed copy of this ordinance is available for inspection by any person during regular hours of the City
Clerk.
Adopted by the City Council of the City of Andover on this 20`s day of December 2022.
ATTEST:
�Mic ellelHaartn Deputy City Clerk