03/09/2010 - City Council SpecialAGENDA
SPECIAL CITY COUNCIL MEETING
TUESDAY, MARCH 9, 2010
5:30 P.M.
EAGAN ROOM -EAGAN MUNICIPAL CAMPUS
I. ROLL CALL AND ADOPTION OF AGENDA
II. VISITORS TO BE HEARD
P ) III. RETAIL DEVELOPMENT AND MARKET PRESENTATION
P. 3 IV. REGIONAL ROADWAY VISIONING STUDY
es' V. DUCKWOOD DRIVE OVERPASS SCHEDULE AND FINANCING OPTIONS
(• { VI. DRAFT ORDINANCE AMENDMENT REGARDING SELF SERVICE FOR
TOBACCO SALES
VII. OTHER BUSINESS
VIII. ADJOURNMENT
Agenda Information Memo
Eagan City Council Workshop
March 9, 2010
III. RETAIL DEVELOPMENT AND MARKET PRESENTATION
NOTE: A joint meeting with the APC will span Items III -V of the Workshop Agenda,
which follow. The City Council meets with each of its Advisory Commissions on an annual
basis to receive information and discuss topics in areas of the Commission's responsibility.
DIRECTION TO BE CONSIDERED: None. The Council and Commission are
encouraged to discuss the implications of the information shared in the presentation for the
near term and long term vitality of the retail areas of the City.
FACTS:
➢ One of the City Council's goals is to preserve and expand the City's economic vitality
by adopting land use and fiscal policies that encourage maintenance and reinvestment
in its residential and commercial properties. In developing this goal, the Council
discussed the importance of the City's attractiveness for retail activity of various
kinds to sustain commercial areas and to encourage a strong mix of retail goods and
services for residents and businesses.
➢ Peter Dugan serves as a member of the City's Advisory Planning Commission. He is
also a Retail Services Broker with CB Richard Ellis. In that capacity, Mr. Dugan
provides presentations and briefings on retail trends and activity to a variety of
audiences. He has been asked to put on that hat at Tuesday's meeting to provide
information for the Council and Commission members that can serve as background
and context to the City's approach to retail /commercial land use and development
proposals.
➢ Peter will provide a presentation overview as a lead in to questions and discussion by
the Council and Commission members. Among the topics he will cover are:
o The current status of the national, statewide and regional retail environment
and Eagan's place within it.
o How retail developers and business locators may view and approach the
Eagan market. What kinds of retailers are more and less attracted to the
Eagan market?
o How the proximity of the Mall of America, Burnsville Center or other retail
concentrations affect the Eagan market.
o What opportunities may be on the horizon and how the City can be ready for
them when the retail market begins to recover.
o The relationship of retail sales, store receipts and frequency of visits to bricks
and mortar decisions.
i
Agenda Information Memo
March 9, 2010 Eagan City Council Workshop
o How these observations relate to the City's current retail areas and future
ones, like the retail portion of the Cedar Grove Redevelopment.
ATTACHMENTS: None
A copy of Mr. Dugan's PowerPoint presentation will be handed out at the meeting.
Page 2 of 2
Special Council Workshop
Agenda Memo
March 9, 2010
IV. REGIONAL ROADWAY SYSTEM VISIONING STUDY - UPDATE
ACTION FOR CONSIDERATION:
Receive an update by City Staff on the status of the Regional Roadway System Visioning
Study (RRSVS) and provide direction regarding a requested meeting with Mendota Heights
Councilmembers.
FACTS:
• There are approximately 1,200 acres of undeveloped /underdeveloped land in the
northeast corner of Eagan and 3,140 acres in the adjacent northwest corner of Inver
Grove Heights. Combined, they provide one of the largest land areas of potential future
economic and residential growth adjacent to the I- 494/694 ring in the metro area. The
two sites are expected to generate over 250,000 trips per day when fully developed, and
will significantly increase traffic demand in the area, particularly on TH 55, Lone Oak
Rd, TH 149, TH 3 and their interchanges with I -494.
• In 2006 -07, the cities of Eagan and Inver Grove Heights along with Dakota County
completed a joint "North -South Corridor Travel Demand Study" to perform a
preliminary analysis for a variety of roadway options in the north - central portion of
Dakota County. This study considered a consolidated regional and county perspective
broader than the local roadway system needs of each city. It looked at both the
anticipated traffic generation and assumed distribution of not only the Eagan /Inver
Grove Heights area, but also future traffic from development growth in Farmington and
Rosemount (U -MORE Park, etc).
• This next phase (Regional Roadway System Visioning Study - RRSVS) evaluates that
travel demand impact on existing area roadways for 20 years plus ultimate full build
out. This study also identifies and evaluates the ability of various alternatives to
mitigate the projected congestion levels of key arterial segments which are difficult and
costly to expand beyond six lanes. The alternatives evaluated in this technical study are:
A. Do Nothing/No Build. This alternative measures the impact on the existing
roadway system if no capacity improvements were made.
B. Improve existing arterial roadway system to maximum capacity. This
alternative takes into consideration upgrading and expanding the existing local,
county and state arterial roadway network to their foreseeable ultimate capacity.
C. Improve existing arterial roadway system (i.e. Alt B) plus add a new
interchange on I -494 at Delaware Ave (Co. Rd. 63). This alternative assumes all
the improvements in Alt. B will occur in addition to adding another access
directly to I -494 replacing the current Delaware Ave overpass.
D. Same as Alt. C but only with a different ramp configuration at the Delaware
Ave interchange.
E. Improve existing arterial roadway system (i.e. Alt B) plus add a new
interchange on I -494 approx. 1/3 mile east of Delaware Ave. This alternative
again assumes all improvements to the existing regional roads (i.e. Alt B) but
moves the proposed interchange away from the existing Delaware Ave
overpass. This alternative would require the dedication /acquisition of a new
corridor for Co. Rd. 63 through Inver Grove Heights and results in a "T"
interchange with 494 accommodating direct access to and from the south only.
• This technical study quantifies and summarizes the projected levels of congestion and
related Levels of Service (LOS) of operation for each of the alternatives. It will also
provide a recommendation as to which alternative will best mitigate congestion on the
local and regional roadway system. This "Visioning" Study is a system -level planning
study to aid in the evaluation of future development options and is not intended to be an
official environmental review due to the inherent lack of detail designs at this planning
stage.
• The RRSVS was funded through an agreement between Eagan (17 %), Inver Grove
Heights (17 %), Dakota County (33 %) and MnDOT (33 %). Mendota Heights, Sunfish
Lake, Met Council and FHWA also participated in the technical committee oversight
process, but with no cost participation. However, the residents and Councils of
Mendota Heights and Sunfish Lake are very opposed to any concept or alternative that
considers a new interchange with 1 -494. They are objecting to the completion of the
study and any subsequent recommendations that propose a new interchange with 1 -494.
The study is planned to be completed and presented to the various City Councils and
County Board later this spring for their consideration of accepting and adopting the
results of the study.
• Informational Open Houses have been held on June 24 and November 10, 2009 and
again on Feb. 25, 2010. Opposition groups have been established and are becoming
more vocal in their opposition to any improvements that will result in more traffic and
related roadway expansions to Delaware Ave., especially those related to a new
interchange with 494. They have compared Delaware Ave. to a "lightning rod" for their
opposition.
• Eagan has been contacted by Mendota Heights requesting a meeting between City
Council representatives to discuss their opposition to the study and its potential impact
to their community. Copies of letters, objections and concerns have been previously
shared with the Council. Since Mendota Heights is requesting this meeting before the
full report can be presented to the Council, staff thought it would be prudent to provide
a brief power point summary update of the study with its issues and alternatives at this
time and receive direction regarding the Council's interests to meet with Mendota
Heights on this matter.
ATTACHMENTS:
• Study Area map with Current Daily Traffic Volumes, page
• Land Use map and traffic projections, page 47
• Roadway System Alternatives, page 7
What are the daily traffic volumes in
the study areal
AVERAGE DAILY TRAFFIC
Source: Based on Mn /DOT traffic volume maps
Legend
(XXX)
Year 2008 AADT
Year 2007 AADT
Year 2006 AADT
CONSULTING G ROUP, INC.
ENGINEERS 1 PLANNERS 1 DESIGNERS
Community
Totals
Base Scenario Consistent with 2030
Comp Plans (1)
Buildout Scenario 2030 ++
Households
Employment
Households
Employment
Eagan
29,000
65,815
29,000
75,823
Inver Grove Heights
19,254
17,891
21,174 (2)
22,698 (3)
Total
48,254
83,706
50,174
98,521
What addltional land use is planned in
the study area?
(') The base scenario is consistent with the City of Eagan and City of Inver Grove Heights Comprehensive PIan5
(2) Increase in NW development area to AUAR buildout of 7,004 households (AUAR- assumed high density housing in
Hornbeam Lake area would be built in other parts of study area).
(3) Increase of 4,807 jobs in NW Inver Grove Heights development area compared to base scenario
(4) Total increase of 10,008 jobs compared to the base scenario (5,467 jobs in NE Eagan development area)
GROWTH IN TRIPS BY YEAR 2030
1,200,000
1,000,000
800,000
600,000
400,000
200,000
0
269,000
Daily Trips
347,000*
Existing Conditions Year 2030 Base Year 2030" Buildout
Conditions Conditions
Trips To /From NE
Eagan /NW Inver
Grove Heights
Growth Areas
Trips To /From
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Heights, Mendota
Heights, Sunfish
Lake
= Additional Trips
due to Future
Planned Growth
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City Council Workshop
March 9, 2010
V. CONTRACT 09 -18, DUCKWOOD DRIVE /FEDERAL DRIVE
BRIDGE /STREET IMPROVEMENTS
ACTION TO BE CONSIDERED:
• Receive an update by City staff on the status of the design of Contract 09 -18
(Duckwood Drive /Federal Drive - Bridge /Street Improvements), the current status
of the improvement in the 5 -year Capital Improvement Program (CIP) and
proposed financing responsibilities.
• Provide direction on the placement of the improvement in the draft 2011 -2015
CIP and pursuit of non -city funding.
FACTS:
• The City's Comprehensive Transportation Plan includes the development of a "Ring
Road" circulator around the intersections of Pilot Knob Road, Yankee Doodle Road
and I -35E. The City has been coordinating the development and improvement of
related infrastructure to accommodate this transportation element for the past 15
years. The Northwood Parkway Overpass component of the Ring Road was
completed in October 2008. The last remaining component is the Duckwood Drive
extension with a similar overpass of 1-35E.
• On October 6, 2009, the City Council took the following actions related to the
Duckwood Drive Overpass:
1. Received the Duckwood Drive Overpass Traffic Study, including the
recommended geometric layout; and,
2. Authorized solicitation of a Request for Proposals for professional services to
prepare detailed plans and specifications; and,
3. Approved a Federal Funding Agreement for final design services.
• On December 15, the Council awarded a Professional Services Contract for design of
Contract 09 -18 to SRF Consulting Group, Inc. with the expectation that a final design
with "shovel ready" plans and specifications would be completed by June 2010 in
order to help Staff pursue construction funding opportunities.
• Local agency "owned" overpasses of state and federal highways appear to be a fairly
new concept with which the Minnesota Department of Transportation (MnDOT) is
wrestling. This was evident in dealing with MnDOT staff on the review of the
Northwood Parkway Overpass design. While other city and county roads overpass
the freeways in Eagan, Northwood Parkway was the first bridge that MnDOT was not
obligated to originally construct.
• Even though the design and construction of the Northwood Parkway overpass was
trouble - free, MnDOT staff is requiring an additional three months of review for the
Duckwood Drive Overpass. The additional review requirement would push the plan
completion schedule back to September or October, 2010.
• Detailed financing of the Duckwood Drive Overpass has not been addressed by the
City Council previously. The 2010 -2014 CIP indicates that 100% of the construction
cost would be the responsibility of the City's Major Street Fund.
• While the City was successful in securing about $1 million in federal funding to be
applied towards preliminary engineering and design for the overall Central Area Ring
Road Improvements, about $800,000 has been used or deferred to date for the final
designs of the Northwood Parkway Overpass ($358,225.54) and Duckwood Drive
Overpass ($369,342.00) and the Duckwood Drive Overpass Traffic Study
($72,794.14). The approximate balance of $183,566 remaining federal funds is
proposed to be used on other design aspects recommended in the Duckwood Drive
Overpass Traffic Study and would not be available for the construction of the
Duckwood Drive overpass or related infrastructure improvements.
• Dakota County provided $675,000 for the construction of the Northwood Parkway
Overpass because it allowed the County to remove and /or significantly delay
proposed improvements to the Yankee Doodle Rd corridor from the County's CIP.
There are no such improvements scheduled in the County's 2010 -2014 CIP that
would be benefitted in a distinguishable manner from the Duckwood Drive Overpass.
• City staff will provide a presentation to the Council updating the proposed
improvements and related financing opportunities and be available to address
questions. Guidance will be sought by City staff on the placement of the Duckwood
Drive Overpass in the 2011 -2015 CIP to help facilitate the pursuit of MnDOT Plan
approval and Federal stimulus funding.
ATTACHMENTS:
• Project Exhibit, page /0 .
• Cost Estimate, page 1/ .
9
YANKEE
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— Duckwood Dr.
Overpass
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LONE OAK ROAD
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Denmark Connection
( Scheduled for July 2010
• 01• •1 •NS
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RING ROAD IMPROVEMENTS
COMPLETED
SEGMENTS
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DUCKWOOD
DR
City of Eva
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November 12, 2009
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Agenda Information Memo
Eagan City Council Workshop
March 9, 2010
VI: DRAFT ORDINANCE AMENDMENT REGARDING SELF SERVICE FOR
TOBACCO SALES
ACTION TO BE CONSIDERED:
• To provide direction for preparation of an ordinance amendment regulating
tobacco sales,
FACTS:
• At the February 1, 2010 Listening Session the City Council directed staff to
survey neighboring cities and prepare a draft ordinance amendment that would
allow self service of tobacco products in establishments that do not permit
anyone under 21 to enter.
• The request was made by Attorney, James MacGillis, representing Ibrahim Agel,
owner of Eagan Cigars & Tobacco Store.
• Attorney MacGillis will be notified of the meeting.
• Currently, Eagan makes no differentiation in the Code between the licensing of
tobacco stores and tobacco sales at a PDQ store for example, it's all tobacco
sales.
• Tobacco sales are currently regulated by State Statutes as well as by the City.
• Federal legislation has granted FDA authority to regulate, although there are no
FDA Rules promulgated yet.
• The City's regulations can be more restrictive, but cannot be "in conflict' with
State Statutes or Federal regulations.
• There are currently 50 tobacco licenses issued in the City, one of which is issued
to a tobacco store.
ATTACHMENTS:
1 3
• Enclosed on pages 14 through _ is a memo of the survey results
and copies of code sections that seem to permit the requested activity in Apple
Valley, Minnetonka, and Lakeville.
• Enclosed on pages (7 through oO is a copy of a memo from the City
Attorney's Office providing background information and potential options for a
Code amendment. �J
• Enclosed on pages through° l is a copy of Eagan City Code
Section 6.34 Tobacco
41 City of Eagan Memo
TO:
FROM:
DATE:
SUBJECT:
CITY ADMINISTRATOR HEDGES
ADMINISTRATIVE SERVICES DIRECTOR VANOVERBEKE
MIRA PEPPER, ADMINISTRATIVE SECRETARY / DEPUTY CLERK
FEBRUARY 22, 2010
SELF - SERVICE TOBACCO SALES
The City Council, at their February 1, 2010 Listening Session directed staff to place
discussion of self - service tobacco sales on an upcoming work session agenda. Per your
instruction, 1 have conducted a survey of area cities regarding their City Code regulations
pertaining to self - service tobacco sales. My findings are as follows:
• Bloomington, Plymouth, Hastings and Coon Rapids do not allow self - service
sales.
• Apple Valley allows self- service sales provided 90% of the license's total annual
sales volume consists of tobacco, tobacco products, or tobacco related devices.
• Minnetonka allows self- service merchandising where the retailer ensures that no
person younger than 18 years of age is present, or permitted to enter, at any time.
• Lakeville allows self - service merchandising if the license holder prohibits anyone
under 18 years of age from entering the establishment, unless accompanied by a
parent.
I have attached excerpts from the City Codes of Apple Valley, Lakeville and
Minnetonka.
Please let me know if you have any questions or need anything further.
Attachments
/01 Cale
It shall be unlawful for any person to sell or offer to sell any tobacco, tobacco product, or tobacco related device:
(A) To any person under the age of 18 years;
(B) By means of any type of vending machine;
By means of self - service merchandise, unless 90% of the Iicense's total annual sales volume consists of
, tobacco products, or tobacco related devices; and
(D) Containing opium, morphine, jimson weed, bella donna, strychnos, cocaine, marijuana, or other deleterious,
allucinogenic, toxic or controlled substances except nicotine and other substances found naturally in tobacco or added
s part of an otherwise lawful manufacturing process.
115.13 UNLAWFUL SALES.
ttp : / /www.amlegal.com/nxt/gateway. dll/ Minnesota/ applevalley /titlexibusinessregulations /chapter 115tob... 2/1 1 /2010
3 -6 -5: PROHIBITED SALES:
A. Prohibited Sales: No person shall sell, offer for sale, give away, furnish, or otherwise deliver
any tobacco, tobacco product, or tobacco related device:
1. To any person under the age of eighteen (18) years.
2. By means of any type of vending machine.
3. By means of self - service merchandising or any means whereby the customer may have
access to such items without having to request the item from the license holder, their
agents or employees. All tobacco related products shall be stored behind a counter or
other area not freely accessible to customers.
4. By any other means, or to any other person, prohibited by federal, state, or other local
law, ordinance provision, or other regulation.
625.040. Prohibited Sales.
A person must not sell or give away any tobacco - related product to any person below the age of 18 years. A person
must not sell, dispense, or give away any tobacco related product through the use of a vending machine or similar
automated dispensing device. A person must not sell, dispense or give away cigarettes or smokeless tobacco through
self - service merchandising, except in facilities where the retailer ensures that no person younger than 18 years of age is
present, or permitted to enter, at any time. A person must not sell tobacco - related products outside the location or area
covered by a license.
Severson, Sheldon, Dougherty Et Motenda, P.A.
EVERSON SHELDON
Attorneys Advisors
MEMORANDUM
TO: Gene VanOverbeke, Director of Administrative Services
FROM: Sharon K. Hills, City Attorney
DATE: March 5, 2010
RE: Self - Service Tobacco Sales
Our File No. 206 -18988
This memorandum is in response to your inquiry and request for an ordinance amendment
regarding self- service tobacco sales. I understand that upon the request of an Eagan retail
tobacco store, the City Council, at its February 1, 2010 Listening Session, considered the issue of
amending the City Code tobacco sales regulations to permit self - service sales of tobacco
products. The Council directed staff to prepare an ordinance amendment that would allow self -
service tobacco sales in establishments that do not permit anyone under 21 years of age to enter.
Eagan City Code, Section 6.34, governs the sale of tobacco, tobacco products or tobacco related
devises. Section 6.34 requires a license for the retail sale of tobacco, tobacco products or tobacco
related devises. Section 6.34 further prohibits the sale of or offer to sell tobacco, tobacco
products or tobacco related devises by means of vending machines or self - service merchandising
of individually packaged tobacco or tobacco products; however, self - service merchandising is
permitted for tobacco- related devises (e.g. pipes, rolling paper, lighter, cigar cutter) and cartons
or multi -pack units of tobacco or tobacco products.
Minnesota Statutes, §§ 461.12 to 461.19, regulates tobacco sales. Section 461.18 bans the sale of
"single packages of cigarettes or smokeless tobacco in open displays which are accessible to the
public without the intervention of a store employee. Section 461.18, however, specifically
exempts certain retailers from the `open display ban ": any retail store that (1) derive at least 90%
of it revenue from tobacco or tobacco products; and (2) no person under 18 years of age is
permitted in the store at any time.
The City of Apple Valley's tobacco sale regulations adopted Section 461.18. Lakeville and
Minnetonka tobacco sale regulations allow self service merchandising for facilities meeting the
"no person under 18 enter" element, but do not have the 90% revenue element, both of which are
required by state law to allow any self- service merchandising. In other words, Lakeville and
Minnetonka regulations are contrary to state law.
Also, Minnesota Statutes, §461.18 prohibits the sale of tobacco products from vending machines,
with an exception for any facility that cannot be entered at any time by persons under 18 years of
age. Section 461.18 does not distinguish the actual use or location of the vending machine
(behind a counter /bar or out on the open floor accessible to the public); it plainly prohibits the
"sale from vending machines." Thus, state law would prohibit Casper's method of selling
cigarettes: vending machine behind the bar and the bartender /clerk must operate the machine.
Further, Casper's would not fall within the statute's exception: persons under 18 do enter
Casper's. including the bar area, at any time. In fact, under state law, 16 and 17 year olds may
work in a liquor establishment (not selling or serving liquor, but as wait staff, bussers).
Therefore, employees and customers under 18 do enter the establishment.
As a side note, the FDA promulgated regulations in 1996 governing tobacco sales in an effort to
curb marketing and sales to children. The 1996 regulations prohibited the sale of "cigarettes and
smokeless tobacco" by means of vending machines, self service displays, or mail orders. Similar
to the Minnesota law, there was an exemption to the vending machines and self- service displays
ban for "facilities where the retailer ensures that no person younger that 18 years of age is
present or permitted to enter at any time. The federal regulation does not have the tobacco sale
revenue clement as Minnesota law, hut Minnesota and local governments may be more
restrictive.
In 2000. the FDA "removed" the 1996 regulations as a result of a US Supreme Court decision
that held that the FDA was not granted congressional authority to promulgate such regulations.
However, 9 years later, Congress passed a bill that was signed by President Obama on June 22,
2009, granting the FDA authority to enact tobacco sales regulations. More importantly, the new
law requires that the FDA's 1996 regulations, restricting tobacco marketing and sales, take effect
within one year of enactment of the new federal law.
Therefore, by June 2010, the 1996 regulations will again be in effect which bans self- service and
vending machine sale of cigarettes and smokeless tobacco except in establishments where person
younger that 18 years old are not present or permitted to enter at any time. The Minnesota law
will he more restrictive than the federal regulation as the self - service sale in Minnesota is
permitted in only facilities that have 90% of its revenue from the sale of tobacco (i.e. tobacco or
smoke shops). I :` otf : Section-. 461.12 to 461.19 do not define "cigarettes thus. it is not clear it
it is limiter it, ii product ordinarily referred to as cigarettes or if it includes any rolled tobacco
The repealed 1996 federal regulations defined cigarette as the latter and
Based on the foregoing, the City of' Eagan may amend its tobacco sales regulations to permit
self- service merchandising or vending machines, but it must be consistent with Minnesota
Statutes. Section 461.18.
With respect to self - service merchandising- -the retailer must:
(1) Derive at least 90/0 of its revenue from tobacco or tobacco products; and
(2) Prohibit any person under 18 years of age from entering the store at any time.
2
With respect to vending machines, the retailer must be a facility that no person under 18 years of
age is permitted inside at any time. There are no such establishments within Eagan that would
fall within this exception other than a tobacco shop /store. Again, as stated above, a liquor
establishment would not fall within the statute's exception: person under 18 do enter licensed
liquor establishments. including the bar area, at any time. Both employees and customers under
18 years of age enter liquor establishments.
Attached you will find a chart that outlines the state law and the current City code provisions
related to vending machines and self- service merchandising. The chart also sets out the Council's
options in addressing this issue.
'I'o avoid expending attorney time /fees on preparing draft alternative ordinance amendments, I
suggest we first get Council's decision on the above options. If you wish to have the various
draft ordinance amendments, please let me know and I can draft them.
3
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§ 2N EAGAN CODE
\ of the female, whether alone or between members of the same or opposite sex or
I ween humans and animals or an act of apparent sex .al stimulation or
gratification.
7. Sexual excitement means the condition of human mOe'or female genitals or the
breasts of the female when in a state of sexi .at stimulation, or the sensual
experiences of humans engaging in or witnessing sexual conduct or nudity.
B. It is unlawful for any licensee, for a monetary consideration or other valuable
commodity or service, to knowingly or rec essly (1) exhibit an obscene performance, or
(2) directly or indirectly sell an admis ib`'n ticket by other means to gain entrance to an
obscene performance, or (3) dire y or indirectly permit admission of a person to
premises whereon there is e ited an obscene performance.
C. Any prosecution under t.' subdivision shall include the following elements: (1) that
the average person, ..•plying contemporary community standards, would find the
performance, take as a whole, appealing to the prurient interest of the audience; (2)
that the perfo .. ante describes or depicts, in a patently offensive way, sexual conduct
included i e definition of "obscene performance"; and (3) that the performance,
taken .: a whole, lacks serious literary, artistic, political or scientific value.
(Code 1983 6.32, eff. 1 -1 -83)
Sec .33. Reserved.
d. No. 32, 2nd series, eff. 5 -6 -86)
Sec. 6.34. Tobacco.
Subd. 1. Purpose. The city recognizes that many persons under the age of 18 years purchase
or otherwise obtain, possess and use tobacco, tobacco products and tobacco related devices, and
such sales, possession and use are violations of both state and federal laws. Thus, the city
intends to regulate the sale, possession and use of tobacco, tobacco products and tobacco
related devices for the purpose of enforcing and furthering existing laws, to prevent and protect
minors against the illegal use of tobacco, tobacco products and tobacco related devices, and to
further the official public policy of the State of Minnesota, as stated in Minn. Stat., § 144.391,
in regard to preventing minors from starting to smoke.
Subd 2. Definitions. The following terms, as used in this section, shall have the meanings
stated:
Compliance checks means the enforcement system the city uses to investigate and ensure
that those authorized to sell tobacco, tobacco products and tobacco related devices are following
and complying with the requirements of this section. Compliance checks shall involve the use
of minors as authorized by this section whereby the authorized minor attempts to purchase
tobacco, tobacco products or tobacco related devices for the purpose of enforcement of this
section, as well as educational, research and training purposes as authorized by state and
federal laws.
Supp. No. 4 CD6:12
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OTHER BUSINESS REGULATION AND LICENSING § 6.34
Hearing officer means the city administrator or any other city employee duly appointed by
the city administrator.
Individually packaged means the practice of selling any tobacco or tobacco product wrapped
individually for sale. Individually wrapped tobacco and tobacco products shall include, but not
be limited to: single cigarette packs; single bags or cans of loose tobacco in any form; and single
cans or other packaging of snuff or chewing tobacco; cartons or other packaging containing
more than a single pack or other single container as described in this paragraph shall not be
considered individually packaged.
Loosies means the common term used to refer to a single or individually wrapped cigarette.
Minor means any person under the age of 18 years.
Moveable place of business shall mean any form of business operated out of a truck, van,
automobile, or other type of vehicle or transportable shelter and not a fixed address store front
or other permanent type of structure authorized for sales transactions.
Retail establishment means any place of business where tobacco, tobacco products or tobacco
related devices are available for sale to the general public, including, but not be limited to:
grocery stores; convenience stores; liquor establishments; and restaurants.
Sale or sell means any transfer of goods for money, trade, barter, or other consideration.
Self - service merchandising means open displays of tobacco, tobacco products or tobacco
related devices for sale in any manner which any person may have access to tobacco, tobacco
products or tobacco related devices without the assistance or intervention of the licensee or the
licensee's employee. Assistance or intervention for access shall require the actual physical
exchange of the tobacco, tobacco product or tobacco related device between the customer and
the license or employee. For purposes of this definition, self - service merchandising does not
include vending machines.
Tobacco or tobacco products means any substance or item that consists of leaf tobacco that
contains nicotine, including but not limited to: cigarettes; cigars; pipe tobacco; snuff, fine cut
or other chewing tobacco; cheroots; stogies; perique; granulated, plug cut, crimp cut, ready -
ribbed, and other smoking tobacco; snuff flowers; cavendish; shorts; plug and twist tobaccos;
dipping tobaccos; refuse scraps, clippings, cuttings, and sweepings of tobacco; and other kinds
and forms of tobacco leaf prepared in such manner as to be suitable for chewing, sniffing, or
smoking. For purposes of this section, a tobacco or tobacco product includes both individually
packaged items, such as a pack of cigarettes or a can of chewing tobacco, and cartons
containing two or more individually packaged tobacco products.
Tobacco related device means any product intentionally designed or intended to be used in
connection with chewing, sniffing, smoking or using tobacco or tobacco products, including a
pipe, rolling papers, tobacco or tobacco product carrying case or lighter.
Supp. No. 4
CD6:13
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§ 6.34 EAGAN CODE
Vending machine means any mechanical, electric or electronic, or other type of device which
dispenses tobacco, tobacco products or tobacco related devices upon the insertion of money,
tokens or other form of payment directly into the device by the person seeking to purchase or
otherwise obtain the tobacco, tobacco products or tobacco related device.
Subd 3. License required. It is unlawful for any person to, directly or indirectly, keep for
retail sale, sell at retail, or otherwise dispose of any tobacco, tobacco product or tobacco - related
device without a license therefor from the city.
Subd 4. License application. Application for a license to sell tobacco, tobacco products or
tobacco related devices hereunder shall be made on a form provided by the city. The application
shall contain the full name of the applicant, the applicant's residential address and telephone
number, the name of the business, the address and telephone number for which the license is
sought, and any additional information the city deems necessary. Upon receipt of the
completed application and license fee, the city council shall take action on the license
application at the next regularly scheduled city council meeting. If the city clerk determines
that an application is incomplete, he or she shall return the application to the applicant with
notice of the information necessary to make the application complete.
Subd 5 Action on license application. The city council may either approve or deny the
license, or it may delay action for such reasonable period of time as necessary to complete any
investigation of the application or the applicant it deems necessary. If the city council approves
the license, a license shall be immediately issued to the applicant. If the city council denies the
license, notice of the denial shall be given to the applicant. The city council may deny a license
on the following grounds:
A. The applicant is under the age of 18 years.
B. The applicant has been convicted within the past five years of any violation of a federal,
state, or local law, ordinance provisions or other regulation relating to tobacco or
tobacco products or tobacco related devices.
C. The applicant has had a license to sell tobacco, tobacco products or tobacco related
devices revoked within the preceding 12 months of the date of application.
D. The applicant fails to provide information required on the application or provides false
or misleading information.
E. The applicant is prohibited by federal, state or other local law, ordinance or other
regulation from holding such a license.
Subd 6. Conditions of license.
A. Separate licenses shall be issued for the sale of tobacco, tobacco product or tobacco -
related devices at each fixed place of business and no license shall be issued for a
moveable place of business.
B. The licensee shall comply with all provisions on this section.
Supp. No. 4
CD6:14
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OTHER BUSINESS REGULATION AND LICENSING § 6.34
Subd. 7. Duration of license. All licenses issued under this section shall expire on December
31st of each year.
Subd. 8. Suspension or revocation. Any license issued under this section may be revoked or
suspended fbr any violation of this section or for any violation of any federal, state or other law,
ordinance or regulation relating to tobacco products or tobacco related device as follows:
A. A licensee's authority to sell cigarettes at the licensed location may be suspended for
a violation of this section.
B. In the case of suspension, there shall be no license refund.
C. License revocation may be instituted following a misdemeanor or petty misdemeanor
conviction under this section of any officer, director, manager, or other agent or
employee of any license.
Subd 9. Termination of license. All licenses issued under this section shall be valid only for
the premises for which the license was issued and only for the person to whom the license was
issued. No license may be transferred to another location or person and any transfer or change
of ownership of the licensed premises shall terminate the license.
Subd 10. Moveable place of business. No license shall be issued to a moveable place of
business.
Subd 11. Display of license. All licenses shall be posted and displayed in plain view of the
general public on the licensed premises.
Subd 12. Renewals. The renewal of a license issued under this section shall be made in
accordance with this section as the original application. The request for a renewal shall be
made at least 30 days, but no more than 60 days before the expiration of the current license.
No license shall be renewed in the absence of payment of the annual license fee.
Subd 13. Investigation and License fees. No license shall be issued under this section until
the investigation fee and license fee is paid in full. The fees for an investigation and license
under this section shall be in an amount set forth by city council resolution.
Subd 14. Unlawful sales. It shall be unlawful for any person to sell or offer to sell any
tobacco, tobacco product or tobacco related device:
A. To any person under the age of 18 years;
B. By means of any type of vending machine;
C. By means of self - service merchandising of individually packaged tobacco or tobacco
products;
D. Containing opium, morphine, jimpson weed, belladonna, strychnos, cocaine, mari-
juana, or other deleterious, hallucinogenic, toxic, or controlled substances except
nicotine and other substances found naturally in tobacco or added as part of an
otherwise lawful manufacturing process.
Supp. No. 15
CD6:15
§ 6.34 EAGAN CODE
Subd. 15. Self - service sales. All tobacco, tobacco products and tobacco related devices which
are individually packaged shall be either stored behind a counter or other area, including a
case or other storage unit, which is not freely accessible and not left open or accessible by the
general public. Any retailer selling tobacco, tobacco products or tobacco related devices at the
time this section is adopted shall comply with this section within 30 days of the effective date
of this section.
Subd 16. Responsibility. All licensees under this section shall be responsible for the actions
of their employees in regard to the sale of tobacco, tobacco products or tobacco related devices
on the licensed premises, and the sale of such an item by an employee shall be considered a
sale by the licensee. Nothing in this section shall be construed as prohibiting the city from
subjecting a licensee's employee to any penalties appropriate under this section, state or
federal law, or other applicable law or regulation.
Subd 17. Compliance checks and inspections. All licensed premises shall be open to
inspection by the city during licensee's regular business hours. From time to time, but at least
once per calendar year, the city shall conduct unannounced compliance checks to ensure
compliance with the provisions of this section. Such compliance cheeks shall involve minors
who are over the age of 15 years, but less than 18 years (with the written consent of their
parent or guardian), who shall enter the licensed premise and purchase or attempt to purchase
tobacco, tobacco products or tobacco related devices.
Minors used for the purpose of compliance cheeks shall be supervised by designated law
enforcement officers or other designated city personnel. Minors used for compliance checks
shall not be in violation of any law prohibiting the purchase or attempted purchase, or the
unlawful possession of tobacco, tobacco products or tobacco related devices by a minor when
such items are obtained as a part of the compliance check. No minor used in compliance checks
shall attempt to use a false identification misrepresenting the minor's age, and shall answer
all questions about the minor's age asked by the licensee or licensee's employee and shall
produce any identification, if any exists, for which he or she is asked. Nothing in this section
shall prohibit other or additional compliance checks authorized by state or federal laws for
educational, research, or training purposes required for the enforcement of a particular state
or federal law.
Subd 18. Unlawful purchase or possession. Unless otherwise provided, the following acts
shall be unlawful.
A. Illegal possession. It is unlawful for any minor to have in his/her possession any
tobacco, tobacco product or tobacco related device. This subdivision shall not apply to
minors lawfully involved in a compliance check or fulfilling his duties as an employee
of the licensee in making a retail sale.
B. Illegal purchase by minor. It shall be unlawful for any minor to purchase or attempt to
purchase or otherwise obtain any tobacco, tobacco product or tobacco related device.
C. Illegal purchase or procurement for minor. It shall be unlawful for any person to
purchase or otherwise obtain for or provide to any minor any tobacco, tobacco product
Supp. No. 15 CD6:16
as
or tobacco related device. It shall further be unlawful for any person to coerce or
attempt to coerce a minor to illegally purchase or otherwise obtain or use any tobacco,
tobacco product or tobacco related device. This paragraph shall not apply to minors
lawfully involved in compliance checks or fulfilling his duty as an employee of the
licensee in making a retail sale.
D. Use of false identification. It shall be a violation of this section for any minor to attempt
to disguise his/her true age by the use of a false form of identification, whether the
identification is that of another person or one on which the age of the person has been
modified or tampered with to represent an age older than the actual age of the person.
Subd. 19. Administration procedures and penalty.
A. Notice. Upon discovery of a violation of this section, a citation that sets forth the
alleged violation and which shall inform the alleged violator of his/her right to be heard
on the accusations shall be issued and served upon the violator either personally or by
mail.
OTHER BUSINESS REGULATION AND LICENSING § 6.34
B. Hearings. If a person accused of violating this section requests a hearing within ten
days of the issuance of the citation, a hearing shall be scheduled, of which the time and
place shall be published and provided to the accused violator, but in no event more
than 14 days after the violator's request for a hearing.
C. Hearing officer. Such hearing shall be held before the hearing officer and shall be open
to the public.
D. Decision. Upon conclusion of the hearing, the hearing officer shall issue written
findings of fact and conclusions detailing whatever violation has occurred and whether
the alleged violator committed it. A copy of the hearing officer's written findings of fact
and conclusions shall be provided to the accused violator. If the hearing officer finds
that no violation occurred or finds grounds for not imposing any penalty, such findings
shall be recorded and a copy provided to the accused violator.
E. Appeals. The violator may appeal the decision made by the hearing officer to the
district court.
F. Misdemeanor prosecution. A violator of any provision of this section shall be deemed a
misdemeanor. If the violator is criminally charged, no administrative penalty shall be
imposed.
G. Continued violation. Each day which a violation occurs or continues shall constitute a
separate offense.
H. Penalties.
1. Licensees. Any licensee found to have violated this section, or whose employee has
violated this section, shall be charged an administrative fine of $75.00 for a first
violation of this section; $200.00 for a second violation at the same licensed
premises within a 24 -month period; and $250.00 for a third or subsequent
violation at the same licensed premises within a 24 -month period. In addition,
Supp. No. 15 CD6:17
§ 6.34 EAGAN CODE
upon the third violation, the license shall be suspended for seven days. Upon the
fourth or subsequent violation at the same licensed premises that has occurred
since the date on which the city issued its initial license to the licensee under this
section, the city council shall determine the penalty to be imposed.
2. Other individuals. Individuals, other than minors regulated by subparagraph
H(3) herein, found to be in violation of this section shall be charged an
administrative fee of $50.00, unless the individual is charged with a criminal
offense arising out of the same violation.
3. Minors. Minors found in unlawful possession of, or who unlawfully purchase or
attempt to purchase, tobacco, tobacco products or tobacco related devices shall be
handled in the same manner as nay other juvenile or minor charged with a
violation of the law.
4. Suspension upon failure to pay administrative penalty. Any administrative fine
imposed hereunder shall be paid by the licensee within 30 days of the date of
notice. The licensee's failure to pay the administrative fine within 30 days of the
date of notice shall be grounds for suspension of the license and the license shall
remain suspended until the administrative fine is paid in full, plus any surcharge
or interest imposed for late payment.
Subd. 20. Exceptions and defenses.
A. Religious, spiritual or cultural ceremony. Nothing in this section shall prevent the
providing of tobacco, tobacco products or tobacco related devices to a minor as part of
a lawfully recognized religious, spiritual or cultural ceremony with the consent of the
minor's parent or legal guardian.
B. Reliance of proof of age. It shall be an affirmative defense to the violation of this section
for a person to have reasonably relied on proof of age as described by state law.
(Code 1983, § 6.34, eff. 1 -1 -83; Ord. No. 134, 2nd series, eff. 2- 28 -92; Ord. No. 266, 2nd series,
eff. 11- 12 -98; Ord. No. 314, 2nd series, § 1, eff. 6- 28 -01; Ord. No. 332, 2nd series, § 1, eff.
3 -28 -02; C)rd. No. 421, 2nd series, § 1, eff. 12 -8 -07)
State law reference — Municipal cigarette license, Minn. Stat. § 461.12 et seq.
c. 6.35. Gambling.
Subd. _ •urpose. To ensure that charitable gambling in the city is conducted by..organiza-
tions licensed o - .pt from licensing under Minnesota Statutes and that the proceeds from
such gambling are us for the betterment of the residents and businesses of the
community. These restrictions °n1i11 be _no- less restrictive than Minnesota Statutes or
regulations and shall apply to 411- farms n£ Lawful gambling.
Subd L A ret required. It is unlawful for anybrganization to conduct lawful gambling
jp..81e city without approval from the city council.
Supp. No. 15 CD6:18