HomeMy WebLinkAbout2580-20 - ADMIN Ordinance - City Council - 2020/01/06Ordinance No. 2580-20
City of St. Louis Park
Hennepin County, Minnesota
An ordinance amending St. Louis Park City Code Chapter 8 – Business and
Licenses, Subdivision X. Tobacco Products and Tobacco Related Devices, Section
8-374 Regulations Adopted and Section 8-378 Violations; Penalty to ban sales of
certain electronic delivery devices
The City of St. Louis Park does ordain:
Section 1. Findings.
(a) As of October 22, 2019, the United States Centers for Disease Control and
Prevention (CDC) reports 1,604 cases of e-cigarette, or vaping, product use associated lung injury
(EVALI) from 49 states (all except Alaska), the District of Columbia, and one United States
territory.
(b) As of October 22, 2019, the CDC reports 34 confirmed EVALI related deaths in 24
states. More deaths are under investigation.
(c) As of October 22, 2019, the CDC reports three confirmed EVALI related deaths in
Minnesota.
(d) CDC reports that as of October 22, 2019 the age range for EVALI patients ranges
from 13 years to 75 years with a median age of 24 years.
(e) EVALI case counts continue to increase and new cases are being reported.
(f) All EVALI patients reported a history of using e-cigarette, or vaping products.
(g) Tetrahydrocannabinol (THC) was present in most of the samples tested by FDA as
of October 22, 2019, and most EVALI patients reported a history of using THC containing
products. CDC reports that the latest national and state findings suggest e-cigarette, or vaping
products containing THC, particularly those obtained off the street or from informal sources (e.g.
friends, family members, illicit dealers), are linked to most of the EVALI cases and play a major
role in the outbreak. However, as of October 22, 2019, the Food and Drug Administration (FDA)
and CDC had not identified the cause or causes of the reported lung injuries, and the only
commonality among all cases is that patients report the use of e-cigarette, or vaping products.
CDC reports no one compound or ingredient had emerged as the cause of EVALI and there may
be more than one cause of EVALI. The cause of EVALI remains unknown.
(h) As of October 22, 2019, CDC recommends that since the specific compound(s) or
ingredient(s) causing lung injury are not yet known, the only sure way avoid EVALI while the
investigation continues is to refrain from use of all e-cigarette, or vaping, products.
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Ordinance No. 2580-20 2
(i) According to the Minnesota Department of Health (MDH) 2019 statistics 26.4% of
11th graders, 16.3% of 9th graders, and 11.1% of 8th graders, report current use of electronic
cigarettes.
(j) Virtually all electronic cigarettes that are sold today entered the market after
2007, but have not been reviewed by the FDA to determine if they are appropriate for the public
health. In 2017, the FDA issued Guidance that purports to give electronic cigarette manufactures
until August 8, 2022 to submit their application for premarket review. The Guidance further
purports to allow unapproved products to stay on the market indefinitely, until such time as FDA
complies with its statutory duty to conduct a premarket review to determine whether a new
tobacco product poses a risk to public health.
(k) By the time electronic cigarette manufactures will be required to submit their
premarket review applications, electronic cigarettes will have been on the market for fifteen
years without any FDA analysis of their safety and alleged benefit. In light of the immediate
health threat posed by EVALI, the City of St. Louis Park is not content to wait for FDA action to
address for its residents what appears from the evidence to be a major health crisis that is going
unattended.
Section 2. City Code Chapter 8 – Business and Licenses, Subdivision X. Tobacco Products
and Tobacco Related Devices, Section 8-374 Regulations Adopted is amended by adding the
underlined language as follows:
Sec. 8-374. Regulations Adopted.
(a) It shall be a violation of this subdivision for any person to sell or offer to sell any tobacco,
tobacco-related device, electronic delivery device, nicotine or lobelia delivery product:
(1) To any person under the age of 21 years.
(2) By means of any type of vending machine.
(3) By means of self-service merchandising whereby the customer does not need to
make a verbal or written request to an employee of the licensed premises in order
to receive the tobacco, tobacco-related device, electronic delivery device, nicotine
or lobelia delivery product. All such products shall be stored behind a counter or
other area not freely accessible to customers.
(4) Containing opium, morphine, jimson weed, bella donna, strychnos, cocaine,
marijuana or other type of deleterious, hallucinogenic or toxic or controlled
substance, except nicotine, and not naturally found in tobacco, tobacco-related
devices or electronic delivery devices.
(5) By any other means or to any other person prohibited by federal, state or other
local laws, ordinances or other regulations.
(6) That meets the definition of flavored product.
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Ordinance No. 2580-20 3
(b) Tobacco, sampling of tobacco, electronic delivery devices, nicotine or lobelia delivery
products within an establishment selling any tobacco, tobacco product, tobacco related devices,
electronic delivery devices, nicotine or lobelia delivery product is prohibited.
(c) No person shall sell, offer to sell, or distribute liquid, whether or not such liquid contains
nicotine that is intended for human consumption and use in an electronic delivery device that is
not contained in child-resistant packaging as that term is defined in Code of Federal Regulations,
title 16, section 1700.15 (b)(1), as in effect on January 1, 2015. A licensee that fails to comply with
this subpart is subject to administrative penalty pursuant to Minn. Stat. § 461.12, subd. 2.
(d) No person shall sell, offer to sell or distribute an electronic delivery device that:
(1) Is a “new tobacco product” as defined in 21 U.S.C. § 387j(a)(1) as may be amended
from time to time,
(2) Requires FDA premarket review under 21 U.S.C § 387j, and
(3) Does not have a premarket review order under 21 U.S.C. § 387j(c)(1)(A)(i), as may be
amended from time to time.
Section 3. City Code Chapter 8 – Business and Licenses, Subdivision X. Tobacco Products
and Tobacco Related Devices, Section 8-378 Violations; penalty is amended by adding the
underlined language as follows:
Sec. 8-378. Violation; penalty.
(a) Generally. Any violation of this subdivision shall be grounds to revoke or
suspend a license under this subdivision.
(b) Criminal penalty. As set forth in M.S.A. ch. 609, it shall be a:
(1) Misdemeanor for anyone to sell tobacco, a tobacco-related device,
electronic delivery device, nicotine or lobelia delivery product to a
person under the age of 21 years for the first violation. Whoever
violates this subdivision a subsequent time within five years of a
previous conviction under this subdivision is guilty of a gross
misdemeanor.
(2) Misdemeanor to furnish tobacco, a tobacco-related device, electronic
delivery device, nicotine or lobelia delivery product to a person under
the age of 21 years. Whoever violates this paragraph a subsequent
time is guilty of a gross misdemeanor.
(3) Misdemeanor for anyone to sell or offer to sell a flavored product in
violation of section 8- 374(a)(6).
(4) Misdemeanor for anyone to sell, offer to sell or distribute liquid,
whether or not such liquid contains nicotine, that is intended for
human consumption and use in an electronic delivery device that is
not contained in child-resistant packaging as that term is defined in
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Ordinance No. 2580-20 4
Code of Federal Regulations, title 16, section 1700.15 (b)(1), as in
effect on January 1, 2015.
(5) Petty misdemeanor for anyone under the age of 21 years to sell,
furnish or give away any tobacco, tobacco-related device, electronic
delivery device, nicotine or lobelia delivery product. This subsection
shall not apply to a person age 18-20 years while working as an
employee of a business holding a license granted pursuant to this
subdivision.
(6) Misdemeanor for anyone to sell an electronic delivery device in
violation of section 8-374 (d).
(c) Presumed penalties for Violations: The presumed penalties for violations are
as follows (unless specified, numbers below indicate consecu tive business
days’ suspension):
Type of Violation 1st
Violation
2nd
Violation
within 36
months
3rd
Violation
within 36
months
4th
Violation
within
36 months
1. Commission of a felony related to
the licensed activity.
Revocation N/A N/A N/A
2. Sale of tobacco, tobacco-related
device, electronic delivery device,
nicotine or lobelia delivery product
while license is under suspension.
Revocation N/A N/A N/A
3. Sale of tobacco, tobacco-related
device, electronic delivery device,
nicotine or lobelia delivery product
to underage person.
$500 $1,000
and 1 day
$2,000
and 30 days
Revocation
4. Refusal to allow government
inspectors or police admission to
inspect premises.
5 days 15 days Revocation N/A
5. Illegal gambling on premises. 3 days 6 days 18 days Revocation
6. Failure to attend mandatory
education training.
$250 $750 and 1
day
$2,000
and 3 days
Revocation
7. Prohibited sale or offer for sale of
flavored products.
$500 $1,000
and 1
day
$2,000 and
30 days
Revocation
8. Prohibited sale or offer for sale of
liquid intended for human
consumption in an electronic
delivery device that is not
contained in child resistant
packaging.
$500 $1,000
and 1
day
$2,000 and
30 days
Revocation
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Ordinance No. 2580-20 5
The penalty for violations without a presumptive penalty shall be determined by the City
Council. The imposition of the presumptive penalty shall be a written notice to the licensee
and may be appealed through an administrative hearing process as set by the city manager.
The city manager's decision may be appealed to the city council by filing a written appeal to
the city clerk within ten days of receiving written notice of the city manager's decision.
(d) Multiple violations: At a licensee’s first appearance before the Council, the Council
must act upon all of the violations that have been alleged in the notice sent to the licensee.
The Council in that case must consider the presumptive penalty for each violation under the
first appearance column in subsection (B) above. The occurrence of multiple violations is
grounds for deviation from the presumed penalties in the Council’s discretion.
(e) Subsequent violations: Violations occurring after the notice of hearing has been
mailed, but prior to the hearing, must be treated as a separate violation and dealt with as a
second appearance before the Council, unless the City Manager and licensee agree in writing
to add the violation to the first appearance. The same procedure applies to the second,
third, or fourth appearance before the Council.
(f) Subsequent appearances: Upon a second, third, or fourth appearance before the
Council by the same licensee, the Council must impose the presumptive penalty for the
violation or violations giving rise to the subsequent appearance without regard to the
particular violation or violations that were the subject of the first or prior appearance.
However, the Council may consider the amount of time elapsed between appearances as a
basis for deviating from the presumptive penalty imposed by this Section.
(g) Computation of violations: Multiple violations are computed by checking the time
period of the three (3) years immediately prior to the date of the most current violation.
(h) Other penalties: Nothing in this Section shall restrict or limit the authority of the
Council to suspend up to sixty (60) days, revoke the license, impose a civil fee not to
exceed two thousand dollars ($2,000.00), to impose conditions, or take any other action in
accordance with law; provided, that the license holder has been afforded an opportunity for a
hearing in the manner provided in this Chapter.
(i) Additional Requirements. In addition to civil penalties, every licensee that has been
found in violation of this Chapter must enter into and complete an education training
program approved by the City’s Police Department.
(j) Exceptions and defenses. Nothing in this subdivision shall prevent the providing of
tobacco, tobacco products or tobacco related devices to a person under the age of 21 as
part of a bona fide religious, spiritual or cultural ceremony. It shall be an affirmative
defense to a violation of this subdivision for a person to have reasonably relied upon proof
of age as set forth by state law.
Section 4. This Ordinance shall take effect on February 1, 2020.
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Ordinance No. 2580-20 6
Adopted by the City Council of the City of St. Louis Park this 6th day of January, 2020.
Public Hearing December 16, 2019
First Reading December 16, 2019
Second Reading January 6, 2020
Date of Publication January 16, 2020
Date Ordinance takes effect February 1, 2020
Reviewed for administration: Adopted by the City Council Jan. 6, 2020
Thomas K. Harmening, city manager Jake Spano, mayor
Attest: Approved as to form and execution:
Melissa Kennedy, city clerk Soren Mattick, city attorney
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