HF 3532

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

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, and no person under the age of 18 shall possess any of these items or in a charter
school, as defined in section 124E.03, subdivision 2. 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
260.755, 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 with that cannot be entered at any time by
persons under the age of 21 years that has an entrance door opening directly to the outside,
and that derives more than 90 percent of its gross revenue from the sale of loose tobacco,
plants, or herbs and cigars, cigarettes, pipes, and other smoking devices for burning tobacco
and related smoking accessories tobacco-related devices, and electronic delivery devices,
as defined in section 609.685, 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; or

(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

(4) (3) is convicted under section 171.22, subdivision 1, clause (2), of lending or
knowingly permitting a person under the age of 18 21 years to use the person's license,
Minnesota identification card, or other type of identification to purchase or attempt to
purchase a tobacco product. 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.

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
sells, gives, or otherwise furnishes tobacco, tobacco-related devices, electronic delivery
devices, or nicotine or lobelia delivery products to a person under the age of 18 21 years,
or violates any other provision of this chapter, the licensee shall be charged an administrative
penalty of $75 $250. An administrative penalty of $200 $500 must be imposed for a second
violation at the same location within 24 months after the initial violation. For a third or any
subsequent violation at the same location within 24 months after the initial violation, an
administrative penalty of $250 $1,000 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 days and may be revoked.
No suspension, revocation, or other penalty 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 sells, gives, or
otherwise furnishes tobacco, tobacco-related devices, electronic delivery devices, or nicotine
or lobelia delivery products to a person under the age of 18 21 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.

Minors Persons under age 21.

The licensing authority shall consult with
interested educators, parents, children persons under the age of 21 years, and representatives
of the court system to develop alternative penalties for minors persons under the age of 21
years who purchase, possess, and consume or attempt to purchase tobacco, tobacco-related
devices, electronic delivery devices, or nicotine or lobelia delivery products 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. The licensing
authority and the interested persons shall consider a variety of options, including, but not
limited to, tobacco-free education, tobacco cessation 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 minors persons over the age of 15 years, but under the age of 18 21 years, who,
with the prior written consent of a parent or guardian if under the age of 18 years, 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 18 21 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 SALE OF PACKS SALES; EXCEPTIONS.

Subdivision 1.

Except in adult-only age 21 and older 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.

(b) [Expired August 28, 1997]

(c) [Expired]

(d) (b) This subdivision shall not apply to retail stores which that have an entrance door
opening directly to the outside and that derive at least 90 percent of their gross revenue from
tobacco and, tobacco-related devices, and electronic delivery devices as defined in section
609.685, subdivision 1, and where the retailer ensures that no person younger than 18 under
the age of 21 years of age 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 younger than 18 under the age of 21 years of age.

Subd. 3.

Federal regulations for cartons, multipacks.

Code of Federal Regulations,
title 21, part 897.16(c) 1140.16(c), as amended by Code of Federal Regulations, volume
81, number 90 (May 10, 2016), and as otherwise amended from time to time, is incorporated
by reference with respect to cartons and other multipack units.

Sec. 10.

[461.22] SIGNAGE REQUIRED.

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.

Sec. 11.

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

609.685 SALE OF TOBACCO TO CHILDREN PERSONS UNDER AGE 21.

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 sell or furnish.

(a) Whoever sells, gives, or otherwise furnishes
tobacco, tobacco-related devices, or electronic delivery devices to a person under the age
of 18 21 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.

Other offenses Use of false identification.

(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.

(b) A person under the age of 18 21 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 petty misdemeanor.

Subd. 2a.

Alternative penalties.

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.

Subd. 3.

Petty misdemeanor.

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.

Subd. 4.

Effect on local ordinances.

Nothing in subdivisions 1 to 3 2a 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 3 2a.

Subd. 5.

Exceptions.

(a) Notwithstanding subdivision 2, an Indian may furnish tobacco
to an Indian under the age of 18 21 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 18 21 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 CHILDREN
PERSONS UNDER AGE 21.

Subdivision 1.

Penalty to sell or furnish.

(a) Whoever sells, gives, or otherwise furnishes
to a person under the age of 18 21 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 18 21 years if the product has 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. 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.

Subd. 2.

Other offense Use of false identification.

A person under the age of 18 21
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 petty misdemeanor. 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.

Subd. 3.

Petty misdemeanor Alternative penalties.

Except 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. 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.