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City Council Ordinance 253ORDINANCE AMENDMENT NO. 253 THE CITY COUNCIL OF MONTICELLO, MINNESOTA, DOES HEREBY ORDAIN THAT TITLE 3 OF THE MONTICELLO CITY ORDINANCE BE AMENDED BY ADDING THE FOLLOWING CHAPTER PERTAINING TO SALE OF TOBACCO: CHAPTER 14 SALE OF TOBACCO SECTION: 3-14-1: Definition 3-14-2: License Required 3-14-3: Application and Issuance of License 3-14-4: License Fee 3-14-5: Displaying of License 3-14-6: Restrictions 3-14-7: Revocation of License 3-14-8: Tobacco Vending Machines 3-14-9: Appeal 3-14-10: Responsibility for Agents and Employees 3-14-1: DEFINITIONS: TOBACCO: As used in this chapter, the term "tobacco" means and includes tobacco in any form, including, but not limited to, cigarettes, cigars, or bagged, canned, or packaged product. SELF-SERVICE MERCHANDISING: The term "self-service merchandising" means a method of displaying tobacco products other than through a vending machine so that they are accessible to the public without the intervention of an employee. 3-14-2: LICENSE REQUIRED: No person shall directly or indirectly or by means of any device or machine keep for retail sale, sell at retail, exchange, barter, dispose of, or give away any tobacco at any place in the city of Monticello without first obtaining a license from the City. The sale of tobacco by vending machine shall require a license under this chapter. 3-14-3: APPLICATION AND ISSUANCE OF LICENSE: Application for a license shall be made to the City Administrator on a form supplied by the City. Such application shall state the full name and address of the applicant, the location of the building and the part thereof intended to be used by the applicant under the license, the kind of business conducted at the location, and any other relevant information as shall be required by the application form. Upon the filing of such application with the Administrator, it shall be presented to the City Council for its consideration, and, if granted by the Council, a license shall be issued by the City Administrator upon payment of the required fee. Ordinance Amendment No. 253 Page 2 3-14-4: LICENSE FEE: The annual license fee shall be an amount established by the City Council. All licenses shall expire on December 31. For any license issued after January 1 in any year, the fee shall be computed by prorating the annual fee over the remaining months or fraction thereof until December 31. A penalty of fifty percent (50%) of the license fee shall be imposed if license is not applied for within the same calendar month that first sale of tobacco is made, or within the first month after the license expires. 3-14-5: DISPLAYING 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. 3-14-6: RESTRICTIONS: (A) Separate licenses shall be issued for the sale of tobacco at each fixed place of business, and no license shall be issued for a movable place of business. (B) It is unlawful for any person to sell, furnish, or give away any tobacco in any form to any person under the age of eighteen (18) years. (C) It is unlawful for any person to keep for sale, sell, or dispose of any tobacco in any form containing opium, morphine, near jimson weed, bella donna, strychnos, cocaine, marijuana, or any other deleterious or poisonous drug except nicotine. (D) It is unlawful for any person to offer for sale any tobacco product by means of self-service merchandising other than through a licensed tobacco vending machine according to Section 3-14-8. 3-14-7: REVOCATION OF LICENSE: Every license granted under this chapter may be revoked, suspended, or not renewed by the City Council, for any of the following reasons: (A) Violation of Section 3-14-5 (B) or any other provision of this chapter. (B) Violation of Minnesota Statutes, Section 609.685, relating to sale of tobacco to persons under eighteen (18) year of age. (C) Failure of the license holder to monitor, supervise, and control the purchase of tobacco from a vending machine so as to prevent the purchase of tobacco from a vending machine by persons under eighteen (18) years of age. Ordinance Amendment No. 253 Page 3 The City Council shall suspend a license issued under this chapter for a minimum of three (3) days on a first violation of any section of this ordinance or the license holder may opt to pay a $250 fine in lieu of license suspension. The City Council shall suspend a license for a minimum period of thirty (30) days for a second violation within a three (3) year period. The City Council shall revoke a license for a third violation occurring within thirty-six (36) months of the second violation for a period of one (1) year. The licensee shall be sent written notice at least ten (10) days in advance informing the licensee of the specific ordinance or statutory violation upon which any suspension or revocation would be based, and the licensee has the right to be represented by counsel and present evidence on its behalf. 3-14-8: TOBACCO VENDING MACHINES: No license shall be issued for a tobacco vending machine located in a public accommodation as defined in Minnesota Statutes, Section 363.01, Subdivision 18, with the following exceptions: (A) A tobacco vending machine may be located in an area within a factory, business, office, or similar place not open to the general public, to which persons under eighteen (18) year of age are not generally permitted access. (B) A tobacco vending machine may be located in an on -sale alcoholic beverage establishment, or an off -sale liquor store, upon the following conditions: 1. The tobacco vending machine shall be located within the immediate vicinity and plain view of a responsible employee, so that all tobacco purchases will be readily observable by that employee; the tobacco vending machine shall not be located in a coatroom, restroom, unmonitored hallway, outer waiting area, or similar unmonitored area; the tobacco vending machine shall be inaccessible to the public when the establishment is closed. (C) A tobacco vending machine may be located in other establishments, under the following conditions: 1. When operated by the activation of an electronic switch operated by an employee of the establishment before each sale or by the insertion of tokens or a key sold or given by an employee of the establishment. 2. The tobacco vending machine shall be located within the immediate vicinity and plain view of a responsible employee, so that all tobacco purchases will be readily observable by that employee; the tobacco vending machine shall not be located in a coatroom, restroom, unmonitored hallway, outer waiting area, or similar unmonitored area; the tobacco vending machine shall be inaccessible to the public when the establishment is closed. Ordinance Amendment No. 253 Page 4 3-14-9: APPEAL: (A) Notice. If the City Council suspends or revokes a license, the City Administrator shall send to the licensee, by certified mail, return receipt requested, written notice of the action, and the right to an appeal. The aggrieved party may appeal the decision of the City Council within ten (10) days of receiving notice of the City's action. The filing of an appeal stays the action of the City Council in suspending or revoking a license until the City Council makes a final decision. (B) Procedure. The City Council shall hear the matter and make a report of the findings. Hearings on the appeal shall be open to the public, and the licensee or applicant shall have the right to appear and be represented by legal counsel and to offer evidence on its behalf. At the conclusion of the hearing, the City Council shall make a final decision. 3-14-10: RESPONSIBILITY FOR AGENTS AND EMPLOYEES: Every act or omission constituting a violation of any of the provisions of this section by an officer, director, manager, or other agent or employee of any licensee shall be deemed and held punishable in the same manner as if the licensee personally committed the act or omission. Published in the Monticello Times 8/11/94.