5. Limiting Sale of Tabacoo behind counter Ill .l' CHANHASSEN
CITYOF !.
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690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
I (612) 937-1900 • FAX (612) 937-5739
1 MEMORANDUM
TO: Mayor and City Council
IFROM: Don Ashworth, City Manager
DATE: February 12, 1990
ISUBJ: Consider Limiting the Sale of Tobacco from Behind the
Counter Only
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The Council directed the attorney to prepare an ordinance
I limiting tobacco product sales. Roger was asked to prepare such
in a "shell" format recognizing that various forms of control
could be considered. Councilman Johnson ' s ideas as to how to
establish "control" are also included.
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CITY OF CHANHASSEN
CARVER AND HENNEPIN COUNTIES, MINNESOTA
ORDINANCE NO.
AN ORDINANCE AMENDING CHAPTER 10 OF THE
' CHANHASSEN CITY CODE BY ADDING PROVISIONS
REGULATING THE SALE OF TOBACCO PRODUCTS
' The City Council of the City of Chanhassen ordains:
Section 1. Chapter 10, Article III of the Chanhassen City
' Code is amended by adding Section 10-127 to read as follows:
Sec. 10-127.1 Legislative Findings and Intent.
' The Chanhassen City Council finds and declares that:
'Q 6 Cigarette smoking is dangerous to human health;.
' (b) The National Institute on Drug Abuse found that
cigarette smoking precedes and may be predictive of adolescent
illicit drug use;
The present legislative method of prohibiting sales of
tobacco products to persons under the age of eighteen (18) and
prohibiting sales by vending machines has proven ineffective in
preventing such persons from using tobacco products; and
(d) Open display makes tobacco products easier to shoplift
and therefore more accessible to persons under age eighteen (18) .
(e) The enactment of this ordinance directly pertains to
' and is in furtherance of the health, safety, and general welfare
of the residents of the City, particularly those residents under
eighteen (18) years of age.
' Sec. 10-127.2 Definitions.
' For the purpose of Chapter 10, Article III, the following
words and phrases shall have the meanings ascribed to them in
this Section:
' "Tobacco Products" means any substance containing tobacco
leaf, including but not limited to, cigarettes, cigars, pipe
tobacco, snuff, chewing tobacco, and cigarette papers or
' wrappers.
"Self-service Merchandising" means open display of tobacco
products that the public has access to without the intervention
of an employee. Vending machines equipped with a locking device
constitute self-service merchandising.
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Section 2. Chapter 10, Article III of the Chanhassen City I
Code is amended by adding Section 10-128 to read:
Sec. 10-128. Self-Service Merchandising: Prohibited Sales. '
It shall be unlawful for any person to offer for sale any
tobacco product by means of self-service merchandising.
Section 3. Chapter 10, Article III of the Chanhassen City
Code is amended by adding Section 10-129 to read:
Sec. 10-129. Remotely Controlled Devices.
Remotely controlled devices may be used to sell tobacco
products provided that the device complies with the following:
(a) The licensee or licensee's employee shall be required
to operate the device to dispense tobacco products; '
(b) The device shall be in plain view of the licensee or
licensee's employee when the device is dispensing tobacco
products;
(c) The device shall emit an audible sound whenever tobacco
products are being dispensed.
(d) The device shall not be coin operated.
Section 4. Chapter 10, Section III of the Chanhassen City
Code is amended by adding Section 10-130 to read:
Sec. 10-130.1 Suspension; revocation of license. '
The City Manager shall suspend a license issued under this
Article for a period of ten (10) days if a licensee violates any
provision of this Article. The City Manager shall suspend a
license for a period of twenty (20) days for a second violation.
The City Manager shall revoke a license for a third violation.
The revocation shall be for a period of one year.
Sec. 10-130.2 Appeal.
(a) Notice. If the City Manager suspends or revokes a
license, the Manager 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 Manager within ten (10) days of receiving
notice of the City's action. The filing of an appeal stays the
action of the City Manager in suspending or revoking a license
until the City Council makes a final decision.
(b) Procedure. The City Council may appoint a committee of
the Council or an independent hearing officer to hear the matter,
report findings of fact and a recommendation for disposition to
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the Council. 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 in its
behalf. At the conclusion of the hearing, the City Council shall
make a final decision.
Section 4. Chapter 10, Article III of the Chanhassen City
Code is amended by adding Section 10-131 to read:
Sec. 10-131. Responsibility for Agents and Employees.
Every act or omission constituting a violation of any of the
provisions of this Article by an officer, director, manager, or
' other agent or employee of any licensee shall be deemed and held
to be the act or omission of the licensee. The licensee shall be
punishable in the same manner as if the licensee personally
' committed the act or omission.
Section 5. Chapter 10, Article III of the Chanhassen City
Code is amended by adding Section 10-132 to read:
Sec. 10-132. Penalty.
A person convicted of any violation of this Article shall be
guilty of a misdemeanor.
Section 6. Chapter 10, Article III of the Chanhassen City
Code is amended by adding subsections (f) and (g) to Section 10-
126 to read as follows:
' (f) An applicant must list remotely controlled tobacco
dispensing devices proposed for use in the licensed premises. The
initial application for a license shall include plans sufficient
to demonstrate that the device complies with Section 10-129.
' (g) Inspection Fees. An annual inspection fee for a
remotely controlled tobacco dispensing device shall be
' established from time to time by resolution of the City Council.
Section 7. This ordinance shall be effective immediately on
May 1, 1990. ,
PASSED AND ADOPTED by the City Council of the City of
Chanhassen this day of , 1990.
ATTEST:
Don Ashworth, Clerk/Manager Donald J. Chmiel, Mayor
(Published in the Chanhassen Villager on , 1990. )
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MEMO FROM JAY '
To: Roger Knutson of Cambell, Knutson and a bunch of other people.
og ll+ pe p
Subject: Chanhassens Proposed Ordinance to Control Access of Minors to Tobacco '
Date: January 30, 1989
Roger
I have been thinking about the proposed ordinance to limit tobacco products to only behind the counter '
sales.
The intent is to restrict access to tobacco products to only those persons who are of legal age to
purchase tobacco. I think that part of the ordinance should define self service merchandising and then
prohibit the self service merchandising of products containing tobacco.
Self service merchandising would be defined as the display,stocking or storage of etc.a product such I
that the general public has access to the product without assistance from a store employee.
Self Service Merchandising of products containing tobacco is prohibited. 1
Remotely controlled devices which restricts access to products containing tobacco shall be designed
such that in case of failure of the device,access to the products is obstructed. Control of the remotely '
controlled devices is restricted to store employees and who has unobstructed vision of the device when
it is operated. The remotely controlled device shall be designed to require an employees attention
whenever access to tobacco products is made(i.e. Deadman switch which closes the device when the
employee releases the button. An audible alarm system must sound whenever access to tobacco
products is occuring. Vending machines cannot be remotely controlled.
• Failure of a remotely controlled device to restrict access to tobacco products is grounds for the loss of
the establishments tobacco license for thirty days or until the device is repaired,which ever is longer.
Intentional tampering with or overriding of the remotely controlled device by store employees shall
be ground for loss of tobacco license for 90 days and is a misdemeanor violation attributable to the
shift manager on duty at the time the tampering is discovered..
Remotely controlled devices must be listed separately on the tobbaco license application. An annual
inspection fee of$100 will be charged for each remotely controlled device. The initial application for
a tobacco license shall include engineering drawings of such detail as demonstarte that the device
meets the minimum design criteria.
I hope you can follow my thoughts.
O'v 4s h4.4-, 'fi,
IICity Council Meeting - January 22, 1990
IICouncilwoman Dinner: I'd like to hear Anita speak as to why. I'd like to take
her reason into consideration.
II Councilman Johnson: Then I'll move to table this for staff to inform Anita one,
of this requirement for the twin home standards so she can evaluate the effect
upon herself on that. And to answer some of these other questions that have
IIbeen brought up here.
Councilwoman Dimler: Second.
Councilman Johnson moved, Councilwoman Dimler seconded to table a request for an
adminstrative subdivision to subdivide a lot containing a double bungalow into
IItwo separate lots. All voted in favor and the motion carried.
COUNCIL DIRECTION OUTLINING ISSUES CONCERNING REGULATIONS OF CIGARETTE SALES.
Mayor Chmiel: This basically I think should have been labeled as a
reconsideration.
ICouncilman Johnson: No, this is a different one. 4 is the reconsideration.
IIMayor Chmiel: Oh, I'm sorry. This is yours Jay. Sorry about that. Go ahead.
Councilman Johnson: Well basically I think we've talked about this twice before
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II in that we've been working on reducing the availability of cigarettes to minors
in the City and one of the means for minors to get cigarettes is shoplifting.
When those cigarettes are prominently displayed where shoplifting is very easy,
it becomes even a more utilized method of obtaining it. It also has other
I repercussions I believe on the kids even though they're just trying to get
cigarettes but what's next type deal on shoplifting. I talked to the new
manager over at Brooke's and asked him what his monthly inventory showed on his
I cigarette shoplifting. He said it was very high recently. The source may not
totally be minors. He does not know exactly why. As a matter of fact, I have
observed an employee several months back basically shoplift a pack of
II cigarettes. Open them up and have a smoke when they had smokers in there. But
that employee's no longer there. But they said in the recent months they have
had a very high losses on tobacco products. I've only looked at two of our
facilities, Brooke's and Kenny's. I didn't go over to SuperAmerica over on TH 7
I and TH 41. I meant to but never got there. And I didn't look at the Super Q as
to what their effect is. Most of the displays they have can be fairly easily
moved behind the counter or a lexan shield put around the front of that to where
II it's a clear shield. You can still see the display but you can't reach in from
the front and get at the cigarettes. I did find out that the cigarette
companies pay to have their displays placed in these stores. These special
displays where you can get your sunglasses with a pack of cigarettes or whatever
Iit is that they give you to try to entice you into buying cigarettes. Those
displays, the merchants are paid to have those in there so there will be an
effect on the merchants with that. I'm not sure how much they get paid for it.
III can't imagine that it's a too terribly big amount but I'd like to see, I do 1
not see it as a big infringement upon the merchants' profits in comparison to
the harm and it may even save them money in shoplifting expenses as we go.
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City Council Meeting - January 22, 1990
Mayor Chtmiel: By having them contained behind the counter? I
Councilman Johnson: By having them contained behind the counter. Especially
the cigar and tobacco products. At both of these locations, the employee cannot
see those products whatsoever. They're completely dependent upon somebody to
reach under and pull it up and hand it to them. Any 4 foot tall kid can
shoplift that stuff real easy. Their pockets are right at the same level. It's
a little harder for an adult. He might have to lean over a little bit. But I
would like to go ahead with an ordinance.
Mayor Chmiel: Any other discussion? Tom. '
Councilman Workman: I can hardly believe it Jay. My question is, how can you
tell a level headed councilme ber. You can tell by the fact that milk cares out
both corners of his mouth. We have an issue caring up, item number 4 Jay. Item
number 4 is just about identical and you just gave me my argument and you're on
the other side of the issue. Number one. The cigarettes over at Brooke's, most
of them in this display case are in rather large packages. '
Councilman Johnson: Not the cigars.
Councilman Workman: Not the cigars, okay. Any kid that inhales cigars ought to
because he won't do it again okay. You don't see kids out behind the warming
house over here at the rink inhaling Tiparillos. Those cigarettes are in
packaging that's large. Either it's a 2 for 1 deal with free dice or cards or
something or lighters or something so they're very difficult, they're not this
size. They're not the size of a can of pop or smaller. I guess what I've been
getting at with the whole thing with the vending machine situation is don't
concern ourselves with their inventory. Okay. I know that things get stolen
but the stuffed olives might be stolen too. We're not worrying about, I don't
want to concern ourselves with the inventory problem. Okay. That's the issue
with the cigarette vending machine. We don't want to keep them behind the
counter because the bartenders are stealing or somebody's stealing them. Okay?
So what you're saying is move them all back there and they're safe.
Councilman Johnson: From the kids.
Councilman Workman: Well there's kids working at Brooke's. '
Councilman Johnson: You have to be 18 to work there because they sell beer.
Councilman Workman: They do? They don't look 18. But I'm getting old. And '
Jay, when we take on a group like this and the attorney for the Coalition for
something vending was in here and he talked about a lot of the same issues and
everything else. I can guarantee you that the. people who own those racks are
going to be in here doing the same thing and applying pressure to Jay Johnson
and saying, you can't do that. And you just got done saying that it's not an
infringement on retailers or their profits.
Councilman Johnson: I said not a major infringement. Or significant.
Councilman Workman: Well I didn't hear major. '
Councilman Johnson: Maybe I said significant.
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City Council Meeting - January 22, 1990
IICouncilman Workman: Then when we go to the vending machine, we're going to get
to that, I can hardly wait. Then you're saying we should keep them in the
vending machine because they've got an inventory problem and they're getting
stolen. You see what I'm saying?
Councilman Johnson: No. You're trying to pull a separate issue into this issue.
IICouncilman Workman: No, what I'm saying is, let's keep it all clean. Because
when you tell one place they can do something and another place is unable to do
Ithat, then that creates even more of a hardship. So when we tell one place that
they can put a switch on a machine but this person over here doesn't have that
machine, well he can get one if he pays $5,000.00 more to get it and that we're
11 opening a hole in our ordinance and start doing things. I'm just saying, in one
situation you're saying inventory behind the counter. One you're saying not.
Councilman Johnson: No. I think you've got everything mixed up here. I'm
Itrying to put the same control at a Brooke's as you're putting at a bar. I want
only adults to be able to get at those cigarettes. Okay? That's the reason
that we're saying that vending machines are outlawed currently in the city of
IChanhassen with cigarettes in them because we don't want children or minors. I'm
not sure if I'd call a 17 year old a child but we don't want minors getting at
the cigarettes. Well there's a huge loop in that thinking if you allow them
' uncontrolled in a Brooke's or a Kenny's or any other place, where it's really a
hang out for the younger children. The ones that we really want to protect.
Those kids 10-12-14 that we don't want them to be able to start smoking. Those r-1
are the kids that aren't going to be able to get into a bar and fake their way
Iinto going after a machine anyway. I don't know many 12 year olds can fake an
ID to get into Filly's but as long as you brought up the next thing, the
difference is that these cigarettes are uncontrolled by an adult. In the
Imachine with the remote switch controlled by an adult, those cigarettes are
controlled by an adult. These we now have uncontrolled cigarettes sitting out
there. All I want to do is try to put together an ordinance where we can
IIcontrol this substance. I think it's the same thing you want to do. We want to
control it whether it's in a vending machine or control it whether it's in a
supermarket. If we had a Target store here, they have racks with cases of it
there. I know the SuperAmerica may also have, I know the SuperAmerica in Eden
IPrairie has a little section where you can go in and pull cases of cigarettes
out. And I've seen the ends of those cases opened. Where's somebody's opened
the end of the cases and they're only selling cases. They're not selling
' individual packs so sar,ebody had gotten in there and stolen some cigarettes.
That's what I'm trying to prevent. How this drags into the vending machine
issue I don't fathom, yet.
ICouncilman Workman: Well so then if as an owner of Brooke's, if I can get a
case that's electronically controlled by the person behind the case, that would
be okay in Brooke's also? With a door to pop open?
IICouncilman Johnson: Yeah. As long as the adult has control, the supervisor,
whoever has control over who gets their hand in that case.
IICouncilman Workman: Do you want to include that in an ordinance for this?
Councilman Johnson: If we can come up with sane kind of wording. I don't think
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City Council Meeting - January 22, 1990 II
that's as feasible as a cigarette machine but if somebody wants to add, I won't I
include that at this time unless somebody requests it to be included and they
showed that there is such a feasible device. I can see some real liability
problems if you have an electronic door on it because you're going to have to
have it close. Crab somebody's hands. Are you saying that you want this to
continue to be freely and openly to...
Councilman Workman: No. I'm just saying, don't concern yourself with the I
inventory of a store.
Councilman Johnson: No. I don't care about the inventory. I'm saying they've '
got shoplifting going on. I'm not saying, and I think that part of that
shoplifting is by children.
Mayor Chmiel: I think what you're saying, because of the availability as to ,
where it's located within that store, that's why the kids are taking the
cigarettes.
Councilman Johnson: Right. I can't prove that there's children taking it but I
know from personal experience as a young child that that does happen. And it
does happen with cigars. I was very sick one day.
Councilwoman Dimler: Jay, would you answer a question for me. The ordinance as
it's proposed here, you're saying it has to be behind the counter. Is that what
you're saying?
Councilman Johnson: That's what I was saying initially.
Mayor Chmiel: Rather than having them out on the counter in front.
Councilman Johnson: Right. '
Councilwoman Dimler: And if they're on the counter, they have to have a shield
in front of them? I
Councilman Johnson: Right.
Councilwoman Dimler: They can be on the counter but shielded? ,
Councilman Johnson: Right. To where they can only be accessed from the rear.
Councilwoman Dimler: Okay. I guess I don't have a problem with this and I see
it as a supplement to what we've already done rather than in opposing to. It's
going one step further in assuring that our youngsters are not able to...
Mayor Chmiel: Having that accessibility.
Councilwoman Dimler: Yes. '
Mayor Chmiel: Okay. Any further discussion?
Councilman Boyt: Well, it seems as though maybe Ursula has it in that it's a
modification. It sounds like what we're really talking about is controlling the
point of sale of tobacco. I would go along with the staff report that suggests
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City Council Meeting - January 22, 1990
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II that this not be aimed at cigarettes but that we aim at tobacco products since
what we're doing here is giving direction to staff to draft some kind of an l 1
ordinance. That we probably ought to look at having one ordinance that I
addresses the controlled sale of tobacco products somewhere along this line and
I that's not to complicate Tom's ordinance or the ordinance that he championed but
simply to kind of try to tie it all together in one piece somehow. Maybe
subsection (b) of that ordinance. I see no reason, well let me put this
I positively. It makes sense to me that we would control the sale of tobacco
products in Chanhassen in sane reasonable fashion.
I Mayor ,iel: Yeah. I think that that's a good idea and I also viewed the
attorney's opinion. He said the City does have the authority to enact such an
ordinance basically protecting the public health and the primary benefits from
the ordinance would be the prevention of theft and making it more difficult for
IIchildren to obtain cigarettes. And I agree with that position.
Councilman Boyt: I would suggest that maybe one of the things that we want to
I think about in the next few weeks though is we probably don't want to be a test
case. I think a good question for the City Attorney to address is if we're
going to became one. I'm not particularly interested in spending our tax
t dollars to fight the tobacco industry. They have a lot more money than we do
and it could be real expensive. So I'd like to at least get an opinion on that.
II Roger Knutson: Whether someone is going to sue you, no one has told me they're
going to. Hopefully they would not. You are not alone in thinking this kind of
regulation. They would pick on you or pick on someone else or pick on anyone I
they don't really. No one is threatened or rattled sabers yet.
ICouncilwoman Dialer: Plus the ordinance has public hearings yet too. We have
that whole process to go through so we have plenty of opportunity for more
Iinput.
Mayor C r,iel: And I don't think, I don't object to us championing these kinds
of things Bill. I think we're at least putting the City in the proper direction
Ito have elimination of kids basically starting a habit that can be a direct, not
as a benefit for that, and could be a health hazard.
tCouncilman Boyt: I agree with you. I think we all agree on that point. I
guess I would like a little more information about our liabilty if we get pulled
into court.
IRoger Knutson: Because of concerns, there have been a few lawsuits and there's
a body of law growing on the subject. If you want, I can have a brief for you
and an update as to where things are.
IICouncilman Johnson: If we fail to pass an ordinance that protects the children
of this city because we're afraid of lawsuits from the tobacco industry, we're
Inot doing a real good service to our city. Once they sue us, then we'll have to
cross that bridge.
Mayor Chmiel: Cross that suit when we get there. Any other discussion?
Councilman Johnson: Was there anybody here from any of the, that would like to
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City Council Meeting - January 22, 1990
address it?
Mayor Chmiel: From Kenny's, Brooke's.
Councilwoman Dinler: A merchant's point of view. 1
Councilman Workman: I guess a couple of my points, in regards to Bill as it
relates to Jay. Bill, I think what I'm getting from Bill's point is I've put a
lot of effort into the cigarette vending machine ban and it went through nice.
Okay. Very soon we're going to talk about maybe kind of going back on that.
What I'm saying is, once you decide and once we decide that we're going to do
this to every store and every Holiday, SA, Q or whatever is no longer able to do
this, a representative and some money and a nice tidy ordinance to change our
idea and everything else, to came back from our stance or a lawsuit or something
is a wrong time to start thinking about it and coming back. That's what I'm
saying because you've got things nice and tidy. Well then people start throwing
money around and spending time in our meetings or doing something else and the
next thing you know, we're trying to moderate back from something that's
currently tidy. That's what I'm saying. So now's the time and the public
hearing is the time to think about whether or not we want to get into that mess
and I'm with you. I want to and you know where I stand on this issue but then
let's, once we say okay. Now we're going and we're going to do it, then to go
back, it's like Teton Lane. What are we doing?
Councilman Johnson: You're talking the next issue I do believe.
Councilman Workman: As it relates to this. Once we get both feet in the
concrete, let's jump in the river.
Councilman Johnson: I think we need to inform like Cooper's about this
before... '
Councilman Workman: These industries are rather slow. They react after things
have happened but they do react. And when the reaction comes and they do use
this as a test case, that's the wrong time to think about the impact.
Councilman Hoyt: I agree with that.
Mayor Chmiel: Yeah. Can we have a motion?
Councilman Johnson: I'd like to move that we direct staff to prepare an
ordinance limiting the point of sale of tobacco products to areas from behind
the counter, not accessible to the general public.
Councilman Workman: I'll second it.
Councilman Johnson moved, Councilman Workman seconded to direct staff to prepare
an ordinance limitng the sale of tobacco products to areas behind the counter
not accessible to the general public. All voted in favor and the motion
carried.
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