Published 5:34 pm Monday, August 28, 2023
ORDINANCE NO. 725
OF THE CITY OF AUSTIN, MINNESOTA AMENDING CHAPTER 6.60 OF THE CITY CODE
The Council of the City of Austin does ordain:
Section 1. Austin City Code Chapter 6, Section 6.60 Subd. 2 and Subd 3 are hereby repealed.
Section 2. A new Section 6.60 Subd. 2, Subd. 3 and Subd. 4 hereby enacted.
Section 3. All subsequent subdivisions are to be renumbered.
Subd. 2 Definitions.
A. Application of Definitions. All terms shall be given their commonly accepted definitions. The
singular shall include the plural and the plural shall include the singular. The masculine shall include the feminine and neuter, and vice-versa. The term “shall” means mandatory and the term “may” means permissive. Definitions in this section shall pertain only to this section and shall have the meanings stated herein.
B: CANNABIS FLOWER: the harvested flower, bud, leaves, and stems of a cannabis plant. Cannabis flower includes adult-use cannabis flower and medical cannabis flower.
C. CANNABINOID PRODUCT: cannabis products, hemp-derived consumer products, or lower-potency hemp edible, as those terms are defined under Minnesota Statutes Section 342.01.
D. ELECTRONIC DELIVERY DEVICE. Any product containing or delivering tetrahydrocannabinol, nicotine, lobelia, or any other substance intended for human consumption that can be used by a person to simulate smoking in the delivery of tetrahydrocannabinol, nicotine or any other substance through inhalation of vapor from the product, an activity commonly referred to as vaping. Electronic delivery devices include but are not limited to what is commonly referred to as e-cigarettes. ELECTRONIC DELIVERY DEVICE shall include any component part of such a product whether or not sold separately. ELECTRONIC DELIVERY DEVICE shall also include any device used for vaporizing medical cannabis pursuant to M.S. § 152.22, Subd. 6. ELECTRONIC DELIVERY DEVICE shall not include any product that has been approved or otherwise certified by the United States Food and Drug Administration for legal sales for use in tobacco cessation treatment or for other medical purposes, and is being
marketed and sold solely for that approved purpose.
E. FOOD ESTABLISHMENT. Any establishment, however designated, engaged in the preparation or serving of food or beverages for consumption either on or off the premises, or
anywhere consumption of food occurs on the premises. This term includes any establishment that has an on-sale non-intoxicating malt liquor license, an on-sale intoxicating liquor license, an on-sale wine license, and/or a strong beer liquor license issued by the state or the city.
F. HOOKAH. A pipe with a long, flexible tube by which the smoke is drawn through a jar of water and thus cooled for the use of tobacco products.
G. INDOOR AREA. All space between a floor and a ceiling that is bounded by walls, doorways, or windows, whether open or closed, covering more than 50% of the combined surface area of the vertical planes constituting the perimeter of the area. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent. A 0.011 gauge window screen with an 18 by 16 mesh count is not a wall.
H. OTHER PERSON IN CHARGE. The agent of the proprietor authorized to provide administrative direction to, and general supervision of, the activities within a public place or place of work at any given time.
I. PLACE OF WORK. Any indoor area at which one or more individuals offer products or perform any type of a service in person for members of the public for consideration of payment under any type of contractual relationship. This includes, but is not limited to, an employment relationship with or for a private corporation, partnership, individual, or government agency. This term includes any location where products or services are offered gratuitously. Examples of a PLACE OF WORK include, but are not limited to, indoor areas of an office, a factory, a hotel or motel; a vehicle used in whole or in part for work purposes during hours of operation if more than one person is present; a warehouse; indoor areas of private clubs and rooms used for private meetings or social functions, and other locations where products are offered and/or services are performed under an employment relationship. An area in which work is performed in a private residence is a place of work during hours of operation if:
1. The homeowner uses the area exclusively and regularly as a principal place of business and has one or more on-site employees; or
2. The homeowner uses the area exclusively and regularly as a place to meet or deal with patients, clients, or customers in the normal course of the homeowner’s trade or business.
J. PROPRIETOR. The party who ultimately controls, governs, or directs the activities within the public place or place of work, regardless of whether the party is owner or lessee of the public place or place of work. The term PROPRIETOR may apply to a corporation as well as an individual.
K. PUBLIC PLACE. Any indoor area used by the general public or serving as a place of work including, but not limited to, arenas, auditoriums, bars, bowling alleys, bingo halls, commercial establishments including licensed retail tobacco establishments, educational facilities hospitals, offices and other commercial establishments, pool halls, public conveyances, restaurants, retail stores, and common areas of rental apartment buildings. This term includes taxis, limousines, and other for-hire vehicles used to transport the public during hours of operation. PUBLIC PLACE also means an outdoor area of a public recreation center or public park, including, but not limited to, a public playground, swimming pool or other recreational area when in use by youth under the age of 18.
L. SMOKING. Inhaling or exhaling smoke from any lighted or heated cigar, cigarette, pipe, or any other lighted or heated tobacco, cannabinoid product, or other plant product, or inhaling or exhaling vapor from any electronic delivery device, an activity which is commonly known as
vaping. Smoking shall include possessing or carrying a lighted or heated cigar, cigarette, pipe, hookah, or any other lighted or heated tobacco product or plant product intended for inhalation. M. TOBACCO PRODUCT. Any products containing, made, or derived from tobacco that is intended for human consumption, whether chewed, smoked, absorbed, dissolved, inhaled, sorted, sniffed, or ingested by any other means or any component, part, or accessory of a tobacco product, including, but not limited to, any substance or item containing tobacco leaf, cigarettes; cigars; pipe tobacco; snuff, fine cut or other chewing tobacco; cheroots; stogies; perique; granulated, plus cut, crimp cut, ready-rubbed, 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 or both for chewing and smoking. TOBACCO PRODUCTS 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.
Subd. 3. Smoking Prohibitions.
A. Smoking Prohibited. Except as provided in Subd. 3, smoking is prohibited in the following locations:
1. Public places and places of work;
2. Outdoor dining or bar areas, including sidewalk seating, of any food establishments that provide wait staff or any other staff services to patrons in those areas; and
3. Within 15 feet of entrances, exits, open windows, and ventilation intakes of public places and places of work, to help prevent tobacco smoke from entering public places and places of work and to protect individuals entering such places from being exposed involuntarily to secondhand smoke, e-cigarette vapor and vaporized medical cannabis.
B. Exceptions. The prohibitions of this subdivision 3 do not apply to the following places or
1. Private residences;
2. Motor vehicles in private use;
3. Motor vehicles that serve as a place of work for no more than one employee;
4. The use of tobacco by an enrolled member of a federally-recognized Indian tribe as part of a traditional Indian spiritual or cultural ceremony;
5. Twenty percent of the guest rooms offered as sleeping accommodations to guests in hotels, motels, or similar lodging places, provided that:
a. All smoking-permitted guest rooms on the same floor of a hotel, motel, or similar lodging place are contiguous; and
b. All smoking-permitted guest rooms are clearly marked as “smoking permitted” on, or next to, entrances to each room.
6. Situations where members of the public are passing through on an outdoor street, alley, or sidewalk where smoking is prohibited by this section while enroute to another location.
7. Use of vaporized medical cannabis by a person legally authorized to use in any place not prohibited by M.S. § 152.23.
Subdivision 4. Additional Prohibitions for Smoking Cannabis Flower or Cannabinoid Products.
A. Smoking Cannabis Flower or Cannabinoid Products Prohibited. Except as provided in this Subdivision 4, smoking cannabis flower or cannabinoid products is prohibited in the following locations:
1. Anywhere smoking is prohibited under Subdivision 3.
2. Anywhere within the City that is not an exception under this Subdivision 4.
B. Exceptions. The prohibitions of this subdivision 4 do not apply to the following places or situations.
1. A private residence, including the curtilage and yard of such residence.
2. Private property not generally accessible by the public, unless a person is explicitly prohibited from consuming cannabis flower of cannabinoid products on the property by the owner of the property; and
3. The premises of an establishment or event licensed to permit on-site consumption of cannabis flower or cannabinoid products.
4. Use of vaporized medical cannabis by a person legally authorized to use in any place not prohibited by M.S. § 152.23.
5. Smoking by means of an Electronic Delivery Device.
C. Penalty. Violation of this subdivision 4 is a petty misdemeanor as defined by Minnesota law. This Section may be enforced by Administrative Citation under Austin Code § 1.98.
All subsequent subdivisions to be renumbered.
Passed by a vote of yeas and nays this 21 day of August, 2023
YEAS 7 NAYS 0
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Stephen M. King, Mayor
Tom Dankert, City Recorder
This ordinance was introduced on August 21, 2023; approved on August 21, 2023; was published in the Austin Daily Herald on August 26, 2023 and becomes effective September 2, 2023.
Austin Daily Herald:
Aug. 26, 2023