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City Ordinances, Smoke and the MN Tobacco Modernization and

Compliance Act of 2010


Part 3 of a 4-Part Series on City Smoke Regulations

By Rachel Carlson, LMC Staff Attorney, http://lmccodification.blogspot.com

One thing I’ve noticed as a city attorney over the years – where there’s smoke, there is
likely to be fire, but also heated complaints to city hall. Hard to tell which burns hotter
from some of the meetings I have attended. Smoke can be the result of residential
heating, recreational activities or industrial activities. Whatever the source, smoke is a
frequent topic of city regulation. This article is the 3rd in a 4-part series of LMC
Codification blog entries on city ordinances and smoke regulation. This week's focus is
on indoor air quality and the regulation of tobacco products.

Indoor Air Quality and Smoking

Indoor air quality issues related to smoke from tobacco products used to be a heated
concern. Now this issue is primarily regulated by state law. Local regulation of this
issue was largely pre-empted through the “Freedom to Breathe Act” (FBA) of 2007. The
FBA essentially prohibits smoking in all indoor public places and places of employment.
The details of this law are summarized on the MN Department of Health website at:
http://www.health.state.mn.us/divs/eh/indoorair/mciaa/ftb/docs/f2bgeneral.pdf.

Cities may still regulate issues related to smoking by:

Adopting more stringent measures than state statute (such as prohibitions on


smoking in city parks, bus shelters and near air intakes of buildings); and
Regulating sellers of tobacco products.

The City of Rochester, Minnesota has adopted an ordinance related to smoking that is
stricter than the state statute. See Chapter 85 General Regulations, Section 85.26 at:
http://www.rochestermn.gov/departments/attorney/ordinances/pdf/ORD85.pdf.
Cities generally regulate sellers of tobacco products by licensing them through local
ordinance. The focus of these local ordinances is usually on limiting youth access.
Licensing Tobacco Sellers

Cities are not required to license tobacco sellers. In contrast, the county must license all
retailers that sell tobacco products, unless a city adopts its own tobacco ordinance. A
city adopting a tobacco ordinance must give general notice of the intent to adopt or
amend a tobacco ordinance, and must give retailers a 30-day written notice of the time,
place, and subject matter of the meeting where the proposed ordinance or amendments
are to be considered.

A tobacco ordinance must contain at least the following provisions:

The ordinance must establish an administrative hearing system where an alleged


violator has the right to be heard before a designated hearing officer or panel
(which could be the city council) and where a fine, instead of a criminal penalty,
could be imposed for violating the ordinance. State law establishes a schedule of
minimum fines;
The ordinance must provide for at least one, unannounced compliance check
each year; and
The ordinance must prohibit self-service (vending machines) sales of individual
cigarette packages, except in establishments that prohibit minors, and in
establishments that derive at least 90 percent of their revenue from the sale of
tobacco.

The ordinance may establish a licensing fee sufficient to cover the costs of enforcing the
above provisions.

Tobacco Modernization and Compliance Act of 2010

Cities who license tobacco sellers should be aware of the Tobacco Modernization and
Compliance Act of 2010 (TMCA). The TMCA is effective August 1, 2010. The main
feature of the TMCA is to expand the definition of what is regulated as tobacco in the
state of Minnesota. “Tobacco products” were formally defined at Minn. Stat. §297F.01,
Subd 19 as:

“cigars; little cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut,
ready rubbed, and other smoking tobacco; snuff; snuff flour; cavendish; plug and
twist tobacco; fine-cut and other chewing tobacco; shorts; refuse scraps, clippings,
cuttings and sweepings of tobacco, and other kinds and forms of tobacco.”
The definition is now expanded to also include:

“any products 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.”

This expanded definition encompasses new products on the market, such as tobacco
laced mints and “e-cigarettes.” The e-cigarettes are typically a plastic container (that
looks like a cigarette and may even have a red-lighted end) that delivers nicotine
through a mist. The e-cigarettes are smokeless. The new law also criminalizes sale of
these tobacco related products to minors.

Cities may now regulate these new forms of tobacco the exact same way they have
always regulated traditional cigarettes, cigars, snuff and chew via a local licensing
ordinance. Cities should review their licensing ordinance in light of the TMCA. Cities
may need to amend their ordinance’s terms and definitions section to mirror the new
expanded definitions.

About the Author:

Rachel Carlson is an attorney with the League of Minnesota Cities. The League of
Minnesota Cities is a membership organization serving Minnesota cities since 1913.
LMC Codification is a specialized service to help our cities maintain complete, up to
date and affordable code books in a frequently changing legal landscape. The LMC
Codification blog can be found at: http://lmccodification.blogspot.com.

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