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HF 3532

as introduced - 90th Legislature (2017 - 2018) Posted on 05/02/2018 03:10pm

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to health; adding charter schools to the prohibition of tobacco in schools;
increasing the tobacco sale age; increasing administrative penalties; allowing
alternative penalties; amending Minnesota Statutes 2016, sections 144.4165;
144.4167, subdivision 4; 171.171; 461.12, subdivisions 2, 3, 4, 5, 6; 461.18;
609.685; 609.6855; proposing coding for new law in Minnesota Statutes, chapter
461.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2016, section 144.4165, is amended to read:


144.4165 TOBACCO PRODUCTS PROHIBITED IN PUBLIC SCHOOLS.

No person shall at any time smoke, chew, or otherwise ingest tobacco or a tobacco
product, or inhale or exhale vapor from an electronic delivery device as defined in section
609.685, subdivision 1, in a public school, as defined in section 120A.05, subdivisions 9,
11, and 13
, deleted text beginand no person under the age of 18 shall possess any of these itemsdeleted text endnew text begin or in a charter
school, as defined in section 124E.03, subdivision 2
new text end. This prohibition extends to all facilities,
whether owned, rented, or leased, and all vehicles that a school district owns, leases, rents,
contracts for, or controls. Nothing in this section shall prohibit the lighting of tobacco by
an adult as a part of a traditional Indian spiritual or cultural ceremony. For purposes of this
section, an Indian is a person who is a member of an Indian tribe as defined in section
260.755new text begin,new text end subdivision 12.

Sec. 2.

Minnesota Statutes 2016, section 144.4167, subdivision 4, is amended to read:


Subd. 4.

Tobacco products shop.

Sections 144.414 to 144.417 do not prohibit the
lighting of tobacco in a tobacco products shop by a customer or potential customer for the
specific purpose of sampling tobacco products. For the purposes of this subdivision, a
tobacco products shop is a retail establishment deleted text beginwithdeleted text endnew text begin that cannot be entered at any time by
persons under the age of 21 years that has
new text end an entrance door opening directly to the outsidenew text begin,
and
new text endthat derives more than 90 percent of its gross revenue from the sale of deleted text beginloosedeleted text end tobacco,
deleted text begin plants, or herbs and cigars, cigarettes, pipes, and other smoking devices for burning tobacco
and related smoking accessories
deleted text endnew text begin tobacco-related devices, and electronic delivery devices,
as defined in section 609.685,
new text end and in which the sale of other products is merely incidental.
"Tobacco products shop" does not include a tobacco department or section of any individual
business establishment with any type of liquor, food, or restaurant license.

Sec. 3.

Minnesota Statutes 2016, section 171.171, is amended to read:


171.171 SUSPENSION; ILLEGAL PURCHASE OF ALCOHOL OR TOBACCO.

The commissioner shall suspend for a period of 90 days the license of a person who:

(1) is under the age of 21 years and is convicted of purchasing or attempting to purchase
an alcoholic beverage in violation of section 340A.503 if the person used a license, Minnesota
identification card, or any type of false identification to purchase or attempt to purchase the
alcoholic beverage;

(2) is convicted under section 171.22, subdivision 1, clause (2), or 340A.503, subdivision
2
, clause (3), of lending or knowingly permitting a person under the age of 21 years to use
the person's license, Minnesota identification card, or other type of identification to purchase
or attempt to purchase an alcoholic beverage;new text begin or
new text end

deleted text begin (3) is under the age of 18 years and is found by a court to have committed a petty
misdemeanor under section 609.685, subdivision 3, if the person used a license, Minnesota
identification card, or any type of false identification to purchase or attempt to purchase the
tobacco product; or
deleted text end

deleted text begin (4)deleted text endnew text begin (3)new text end is convicted under section 171.22, subdivision 1, clause (2), of lending or
knowingly permitting a person under the age of deleted text begin18deleted text endnew text begin 21new text end years to use the person's license,
Minnesota identification card, or other type of identification to purchase or attempt to
purchase deleted text begina tobacco product.deleted text endnew text begin tobacco, a tobacco-related device, an electronic delivery device
as defined in section 609.685, subdivision 1, or a nicotine or lobelia delivery product as
described in section 609.6855, subdivision 1.
new text end

Sec. 4.

Minnesota Statutes 2016, section 461.12, subdivision 2, is amended to read:


Subd. 2.

Administrative penalties; licensees.

If a licensee or employee of a licensee
sellsnew text begin, gives, or otherwise furnishesnew text end tobacco, tobacco-related devices, electronic delivery
devices, or nicotine or lobelia delivery products to a person under the age of deleted text begin18deleted text endnew text begin 21new text end years,
or violates any other provision of this chapter, the licensee shall be charged an administrative
penalty of deleted text begin$75deleted text endnew text begin $250new text end. An administrative penalty of deleted text begin$200deleted text endnew text begin $500new text end must be imposed for a second
violation at the same location within 24 months after the initial violation. For a third new text beginor any
subsequent
new text endviolation at the same location within 24 months after the initial violation, an
administrative penalty of deleted text begin$250deleted text endnew text begin $1,000new text end must be imposed, and the licensee's authority to sell
tobacco, tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery
products at that location must be suspended for not less than seven daysnew text begin and may be revokednew text end.
No suspensionnew text begin, revocation,new text end or new text beginother new text endpenalty may take effect until the licensee has received
notice, served personally or by mail, of the alleged violation and an opportunity for a hearing
before a person authorized by the licensing authority to conduct the hearing. A decision
that a violation has occurred must be in writing.

Sec. 5.

Minnesota Statutes 2016, section 461.12, subdivision 3, is amended to read:


Subd. 3.

Administrative penalty; individuals.

An individual who sellsnew text begin, gives, or
otherwise furnishes
new text end tobacco, tobacco-related devices, electronic delivery devices, or nicotine
or lobelia delivery products to a person under the age of deleted text begin18deleted text endnew text begin 21new text end years must be charged an
administrative penalty of $50. 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 licensing authority to conduct the hearing. A decision
that a violation has occurred must be in writing.

Sec. 6.

Minnesota Statutes 2016, section 461.12, subdivision 4, is amended to read:


Subd. 4.

deleted text beginMinorsdeleted text endnew text begin Persons under age 21new text end.

The licensing authority shall consult with
interested educators, parents, deleted text beginchildrendeleted text endnew text begin persons under the age of 21 yearsnew text end, and representatives
of the court system to develop alternative penalties for deleted text beginminorsdeleted text endnew text begin persons under the age of 21
years
new text end who purchasedeleted text begin, possess, and consumedeleted text endnew text begin or attempt to purchasenew text end tobacco, tobacco-related
devices, electronic delivery devices, or nicotine or lobelia delivery productsnew text begin using a driver's
license, permit, Minnesota identification card, or any other type of false identification to
misrepresent the person's age, in violation of section 609.685 or 609.6855
new text end. The licensing
authority and the interested persons shall consider a variety of options, including, but not
limited to, tobacconew text begin-new text endfree educationnew text begin, tobacco cessationnew text end programs, notice to schools, parents,
community service, and other court diversion programs.

Sec. 7.

Minnesota Statutes 2016, section 461.12, subdivision 5, is amended to read:


Subd. 5.

Compliance checks.

A licensing authority shall conduct unannounced
compliance checks at least once each calendar year at each location where tobacco,
tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery products
are sold to test compliance with sections 609.685 and 609.6855. Compliance checks must
involve deleted text beginminorsdeleted text endnew text begin personsnew text end over the age of 15new text begin yearsnew text end, but under the age of deleted text begin18deleted text endnew text begin 21 yearsnew text end, who,
with the prior written consent of a parent or guardiannew text begin if under the age of 18 yearsnew text end, attempt
to purchase tobacco, tobacco-related devices, electronic delivery devices, or nicotine or
lobelia delivery products under the direct supervision of a law enforcement officer or an
employee of the licensing authority.

Sec. 8.

Minnesota Statutes 2016, section 461.12, subdivision 6, is amended to read:


Subd. 6.

Defense.

It is an affirmative defense to the charge of selling tobacco,
tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery products
to a person under the age of deleted text begin18deleted text endnew text begin 21new text end years in violation of subdivision 2 or 3 that the licensee
or individual making the sale relied in good faith upon proof of age as described in section
340A.503, subdivision 6.

Sec. 9.

Minnesota Statutes 2016, section 461.18, is amended to read:


461.18 BAN ON SELF-SERVICE deleted text beginSALE OF PACKSdeleted text endnew text begin SALESnew text end; EXCEPTIONS.

Subdivision 1.

Except in deleted text beginadult-onlydeleted text endnew text begin age 21 and oldernew text end facilities.

(a) No person shall
offer for sale tobacco or tobacco-related devices, or electronic delivery devices as defined
in section 609.685, subdivision 1, or nicotine or lobelia delivery products as described in
section 609.6855, in open displays which are accessible to the public without the intervention
of a store employee.

deleted text begin (b) [Expired August 28, 1997]
deleted text end

deleted text begin (c) [Expired]
deleted text end

deleted text begin (d)deleted text endnew text begin (b)new text end This subdivision shall not apply to retail stores deleted text beginwhichdeleted text endnew text begin that have an entrance door
opening directly to the outside and that
new text end derive at least 90 percent of their new text begingross new text endrevenue from
tobacco deleted text beginanddeleted text endnew text begin,new text end tobacco-related devicesnew text begin, and electronic delivery devices as defined in section
609.685, subdivision 1,
new text end and where the retailer ensures that no person deleted text beginyounger than 18deleted text endnew text begin under
the age of 21
new text end years deleted text beginof agedeleted text end is present, or permitted to enter, at any time.

Subd. 2.

Vending machine sales prohibited.

No person shall sell tobacco products,
electronic delivery devices, or nicotine or lobelia delivery products from vending machines.
This subdivision does not apply to vending machines in facilities that cannot be entered at
any time by persons deleted text beginyounger than 18deleted text endnew text begin under the age of 21new text end years deleted text beginof agedeleted text end.

Subd. 3.

Federal regulations for cartons, multipacks.

Code of Federal Regulations,
title 21, part deleted text begin897.16(c)deleted text endnew text begin 1140.16(c)new text end, new text beginas amended by Code of Federal Regulations, volume
81, number 90 (May 10, 2016), and as otherwise amended from time to time,
new text endis incorporated
by reference with respect to cartons and other multipack units.

Sec. 10.

new text begin [461.22] SIGNAGE REQUIRED.
new text end

new text begin At each location where tobacco, tobacco-related devices, electronic delivery devices, or
nicotine or lobelia delivery products are sold, the licensee shall display a sign in plain view
to provide public notice that selling any of these products to any person under the age of
21 years is illegal and subject to penalties. The notice shall be placed in a conspicuous
location in the licensed establishment and shall be readily visible to any person who is
purchasing or considering a purchase of such products. The sign must provide notice that
all persons responsible for selling such products shall verify, by means of photographic
identification containing the bearer's date of birth, the age of any person under the age of
30 years.
new text end

Sec. 11.

Minnesota Statutes 2016, section 609.685, is amended to read:


609.685 SALE OF TOBACCO TO deleted text beginCHILDRENdeleted text endnew text begin PERSONS UNDER AGE 21new text end.

Subdivision 1.

Definitions.

For the purposes of this section, the following terms shall
have the meanings respectively ascribed to them in this section.

(a) "Tobacco" means cigarettes and any product 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 including but not limited to cigars; cheroots; stogies;
perique; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff;
snuff flour; cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts;
refuse scraps, clippings, cuttings and sweepings of tobacco; and other kinds and forms of
tobacco. Tobacco excludes any tobacco product that has been approved 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 being marketed and sold
solely for such an approved purpose.

(b) "Tobacco-related devices" means cigarette papers or pipes for smoking or other
devices intentionally designed or intended to be used in a manner which enables the chewing,
sniffing, smoking, or inhalation of vapors of tobacco or tobacco products. Tobacco-related
devices include components of tobacco-related devices which may be marketed or sold
separately.

(c) "Electronic delivery device" means 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.

Subd. 1a.

Penalty to sellnew text begin or furnishnew text end.

(a) Whoever sellsnew text begin, gives, or otherwise furnishesnew text end
tobacco, tobacco-related devices, or electronic delivery devices to a person under the age
of deleted text begin18deleted text endnew text begin 21new text end years is guilty of a misdemeanor 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.

(b) It is an affirmative defense to a charge under this subdivision if the defendant proves
by a preponderance of the evidence that the defendant reasonably and in good faith relied
on proof of age as described in section 340A.503, subdivision 6.

Subd. 2.

deleted text beginOther offensesdeleted text endnew text begin Use of false identificationnew text end.

deleted text begin (a) Whoever furnishes tobacco,
tobacco-related devices, or electronic delivery devices to a person under the age of 18 years
is guilty of a misdemeanor for the first violation. Whoever violates this paragraph a
subsequent time is guilty of a gross misdemeanor.
deleted text end

deleted text begin (b)deleted text end A person under the age of deleted text begin18deleted text endnew text begin 21new text end years who purchases or attempts to purchase tobacco,
tobacco-related devices, or electronic delivery devices and who uses a driver's license,
permit, Minnesota identification card, or any type of false identification to misrepresent the
person's age, is guilty of a new text beginpetty new text endmisdemeanor.

new text begin Subd. 2a. new text end

new text begin Alternative penalties. new text end

new text begin Law enforcement and court system representatives
shall consult with interested persons including as applicable parents, educators, persons
under the age of 21 years, and others to develop alternative penalties for persons under the
age of 21 years who violate any subdivision in this section. All participants shall consider
a variety of options including but not limited to tobacco-free education programs, community
service, and tobacco cessation programs; and for persons under the age of 18 years, notice
to schools and parents, and court diversion programs.
new text end

deleted text begin Subd. 3. deleted text end

deleted text begin Petty misdemeanor. deleted text end

deleted text begin Except as otherwise provided in subdivision 2, whoever
possesses, smokes, chews, or otherwise ingests, purchases, or attempts to purchase tobacco,
tobacco-related devices, or electronic delivery devices and is under the age of 18 years is
guilty of a petty misdemeanor.
deleted text end

Subd. 4.

Effect on local ordinances.

Nothing in subdivisions 1 to deleted text begin3deleted text endnew text begin 2anew text end shall supersede
or preclude the continuation or adoption of any local ordinance which provides for more
stringent regulation of the subject matter in subdivisions 1 to deleted text begin3deleted text endnew text begin 2anew text end.

Subd. 5.

Exceptions.

(a) Notwithstanding subdivision 2, an Indian may furnish tobacco
to an Indian under the age of deleted text begin18deleted text endnew text begin 21new text end years if the tobacco is furnished as part of a traditional
Indian spiritual or cultural ceremony. For purposes of this paragraph, an Indian is a person
who is a member of an Indian tribe as defined in section 260.755, subdivision 12.

(b) The penalties in this section do not apply to a person under the age of deleted text begin18deleted text endnew text begin 21new text end years
who purchases or attempts to purchase tobacco, tobacco-related devices, or electronic
delivery devices while under the direct supervision of a responsible adult for training,
education, research, or enforcement purposes.

Subd. 6.

Seizure of false identification.

A retailer may seize a form of identification
listed in section 340A.503, subdivision 6, if the retailer has reasonable grounds to believe
that the form of identification has been altered or falsified or is being used to violate any
law. A retailer that seizes a form of identification as authorized under this subdivision shall
deliver it to a law enforcement agency within 24 hours of seizing it.

Sec. 12.

Minnesota Statutes 2016, section 609.6855, is amended to read:


609.6855 SALE OF NICOTINE DELIVERY PRODUCTS TO deleted text beginCHILDRENdeleted text endnew text begin
PERSONS UNDER AGE 21
new text end.

Subdivision 1.

Penalty to sellnew text begin or furnishnew text end.

(a) Whoever sellsnew text begin, gives, or otherwise furnishesnew text end
to a person under the age of deleted text begin18deleted text endnew text begin 21new text end years a product containing or delivering nicotine or lobelia
intended for human consumption, or any part of such a product, that is not tobacco or an
electronic delivery device as defined by section 609.685, is guilty of a misdemeanor 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.

(b) It is an affirmative defense to a charge under this subdivision if the defendant proves
by a preponderance of the evidence that the defendant reasonably and in good faith relied
on proof of age as described in section 340A.503, subdivision 6.

(c) Notwithstanding paragraph (a), a product containing or delivering nicotine or lobelia
intended for human consumption, or any part of such a product, that is not tobacco or an
electronic delivery device as defined by section 609.685, may be sold to persons under the
age of deleted text begin18deleted text endnew text begin 21 yearsnew text end if the product deleted text beginhas been approved or otherwise certified for legal sale by
the United States Food and Drug Administration for tobacco use cessation, harm reduction,
or for other medical purposes, and is being marketed and sold solely for that approved
purpose.
deleted text endnew text begin is a drug, device, or combination product authorized for sale by the United States
Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and
Cosmetic Act.
new text end

Subd. 2.

deleted text beginOther offensedeleted text endnew text begin Use of false identificationnew text end.

A person under the age of deleted text begin18deleted text endnew text begin 21new text end
years who purchases or attempts to purchase a product containing or delivering nicotine or
lobelia intended for human consumption, or any part of such a product, that is not tobacco
or an electronic delivery device as defined by section 609.685, and who uses a driver's
license, permit, Minnesota identification card, or any type of false identification to
misrepresent the person's age, is guilty of a new text beginpetty new text endmisdemeanor.new text begin This penalty does not apply
to a person under the age of 21 years who purchases or attempts to purchase such a product
while under the direct supervision of a responsible adult for training, education, research,
or enforcement purposes.
new text end

Subd. 3.

deleted text beginPetty misdemeanordeleted text endnew text begin Alternative penaltiesnew text end.

deleted text beginExcept as otherwise provided in
subdivisions 1 and 2, whoever is under the age of 18 years and possesses, purchases, or
attempts to purchase a product containing or delivering nicotine or lobelia intended for
human consumption, or any part of such a product, that is not tobacco or an electronic
delivery device as defined by section 609.685, is guilty of a petty misdemeanor.
deleted text end new text beginLaw
enforcement and court system representatives shall consult with interested persons including
as applicable parents, educators, persons under the age of 21 years, and others to develop
alternative penalties for persons under the age of 21 years who violate any subdivision in
this section. All participants shall consider a variety of options including but not limited to
tobacco-free education programs, community service, and tobacco cessation programs; and
for persons under the age of 18 years, notice to schools and parents, and court diversion
programs.
new text end