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Tuesday, June 29, 2010
New Law Regulating Tattoo and Body Art Establishments
Summary of the New Law
Beginning July 1, 2010 the State of Minnesota will step into the realm of regulating body art – which includes tattooing and body piercing, scarification and body modification such as tongue bifurcation (herein after referred to collectively as “body art”). See MN Laws 2010 Chapter 317 (a link may be found at the end of this entry).
The state will offer two types of licensure – licenses for establishments where body art is conducted and licenses for persons performing body art procedures in these establishments. To do this type of work everyone must be licensed - without exception - across the state.
How the New Law Effects Cities
Cities that previously regulated body art establishments may continue to do so – if their local ordinances are as strict as the state requirements. It should be noted that establishments in cities with local ordinances will not need to obtain the new state license.
Cities may not continue to license persons practicing body art. These practitioners must now be licensed exclusively by the state.
Cities may continue to enforce zoning, building and construction requirements, nuisance control and commercial licensing of businesses in general without interruption against body art establishments.
How Should Cities Respond to the New Law?
The new law means that city councils will probably have to spend some time thinking about tattoos, piercings and tongue bifurcation. Maybe that isn’t exactly a happy thought.
All body art practitioners and establishments will need to obtain a new state license by January 1, 2011. If they fail to obtain a license, they may no longer legally perform their services in the State of Minnesota. They may also face stiff penalties for failing to comply.
With the new state regulation hanging over their heads, body art establishment owners located in your city may start visiting city hall with some questions. For example, in cities that already regulate body art establishments, the owner may be asking 1) do local standards meet the new state standards? 2) do I need to get a local license now or a state license?
Cities that currently do not license body art establishments may get requests that the city start regulating this area. Often local business owners prefer to deal with a city entity rather than a state entity. The establishment owner might view city regulation as less expensive, easier to obtain licenses and/or easier to negotiate any future difficulties that may arise.
The Most Important Question: Do We Still Want to Regulate This?
Even if the city doesn’t get these questions from local body art establishment owners, the city council may still need to review local ordinance. The most important question to ask is: do we still want to regulate this? In my experience, cities are reluctant regulators on this topic. Most of the cities that have called me for sample ordinances on these establishments were surprised to learn that the state wasn’t already heavily regulating body art.
Some other questions that it might be worthwhile to consider are:
• Can we do this as well as the state?
• If the state is willing to regulate this area, is it worth the expense for us to regulate locally?
• Do we want (or currently have) stricter standards than what the state requires? Will state regulation be adequate to protect resident safety?
• If our current ordinance is less restrictive than the state requirements, are we willing to commit to amending the local ordinance to bring it up to snuff?
• If local ordinance is currently less restrictive, are we interested in having staff assume new duties related to inspection and license issuance?
If the city wishes to continue to regulate this area, the new law must be reviewed carefully and compared to the existing ordinance – particularly the “health and safety standards” portion and the sections regulating home businesses. The city may have stricter standards than the state law. In addition, a city may choose via local ordinance to “limit the types of body art procedures that may be performed in body art establishments located within its jurisdiction.” (See Minn. Law Chapter 317, Section 2, Subdivision 9). This feature may be an argument for some cities to maintain their local ordinances.
Key Features of the New Law for Establishments
Under the new law, body art establishments may obtain a license good for three (3) years. With each new license issued, an inspection must be performed. Thereafter, inspections must occur at least once during the three year licensure period.
The law itself must me read for the detailed provisions on procedures and health standards. Some key items, however, include the following. Establishments must:
• Meet all local and state health and safety codes for buildings and not constitute a public health nuisance;
• Maintain records on the licensure and training of employees and on clients serviced at the establishment;
• Establishments in private homes must be completely separate from living, eating and bathroom areas in the home;
• Properly dispose of sharps, blood or body fluids, or items contaminated
by blood or body fluids;
• Use only single use needles and perform body art procedures in a sterile area;
• Obtain and properly maintain sterilization equipment;
• Maintain records related to “spore” tests conducted on equipment sterilizers.
The new law also contains extensive procedures for the revocation of establishment licenses where violations have occurred. In addition, violations may be punished by a civil penalty not exceeding $10,000 that includes costs for investigation and prosecution of the violation.
Conclusion
I almost wish I were a fly on the wall – able to sit in on the council discussions related to body art and tongue bifurcation that will inevitably arise in many of Minnesota’s city council chambers in the next few months. Rather than being a new mandate for regulation to cities, this new law presents cities with some interesting choices to consider. I hope this blog entry helps inform what is sure to be a colorful and varied to discussion.
Finally, for those of you who need the details of the new law. Here is a link to take you right there:
https://www.revisor.mn.gov/laws/?id=317&doctype=Chapter&year=2010&type=0
Beginning July 1, 2010 the State of Minnesota will step into the realm of regulating body art – which includes tattooing and body piercing, scarification and body modification such as tongue bifurcation (herein after referred to collectively as “body art”). See MN Laws 2010 Chapter 317 (a link may be found at the end of this entry).
The state will offer two types of licensure – licenses for establishments where body art is conducted and licenses for persons performing body art procedures in these establishments. To do this type of work everyone must be licensed - without exception - across the state.
How the New Law Effects Cities
Cities that previously regulated body art establishments may continue to do so – if their local ordinances are as strict as the state requirements. It should be noted that establishments in cities with local ordinances will not need to obtain the new state license.
Cities may not continue to license persons practicing body art. These practitioners must now be licensed exclusively by the state.
Cities may continue to enforce zoning, building and construction requirements, nuisance control and commercial licensing of businesses in general without interruption against body art establishments.
How Should Cities Respond to the New Law?
The new law means that city councils will probably have to spend some time thinking about tattoos, piercings and tongue bifurcation. Maybe that isn’t exactly a happy thought.
All body art practitioners and establishments will need to obtain a new state license by January 1, 2011. If they fail to obtain a license, they may no longer legally perform their services in the State of Minnesota. They may also face stiff penalties for failing to comply.
With the new state regulation hanging over their heads, body art establishment owners located in your city may start visiting city hall with some questions. For example, in cities that already regulate body art establishments, the owner may be asking 1) do local standards meet the new state standards? 2) do I need to get a local license now or a state license?
Cities that currently do not license body art establishments may get requests that the city start regulating this area. Often local business owners prefer to deal with a city entity rather than a state entity. The establishment owner might view city regulation as less expensive, easier to obtain licenses and/or easier to negotiate any future difficulties that may arise.
The Most Important Question: Do We Still Want to Regulate This?
Even if the city doesn’t get these questions from local body art establishment owners, the city council may still need to review local ordinance. The most important question to ask is: do we still want to regulate this? In my experience, cities are reluctant regulators on this topic. Most of the cities that have called me for sample ordinances on these establishments were surprised to learn that the state wasn’t already heavily regulating body art.
Some other questions that it might be worthwhile to consider are:
• Can we do this as well as the state?
• If the state is willing to regulate this area, is it worth the expense for us to regulate locally?
• Do we want (or currently have) stricter standards than what the state requires? Will state regulation be adequate to protect resident safety?
• If our current ordinance is less restrictive than the state requirements, are we willing to commit to amending the local ordinance to bring it up to snuff?
• If local ordinance is currently less restrictive, are we interested in having staff assume new duties related to inspection and license issuance?
If the city wishes to continue to regulate this area, the new law must be reviewed carefully and compared to the existing ordinance – particularly the “health and safety standards” portion and the sections regulating home businesses. The city may have stricter standards than the state law. In addition, a city may choose via local ordinance to “limit the types of body art procedures that may be performed in body art establishments located within its jurisdiction.” (See Minn. Law Chapter 317, Section 2, Subdivision 9). This feature may be an argument for some cities to maintain their local ordinances.
Key Features of the New Law for Establishments
Under the new law, body art establishments may obtain a license good for three (3) years. With each new license issued, an inspection must be performed. Thereafter, inspections must occur at least once during the three year licensure period.
The law itself must me read for the detailed provisions on procedures and health standards. Some key items, however, include the following. Establishments must:
• Meet all local and state health and safety codes for buildings and not constitute a public health nuisance;
• Maintain records on the licensure and training of employees and on clients serviced at the establishment;
• Establishments in private homes must be completely separate from living, eating and bathroom areas in the home;
• Properly dispose of sharps, blood or body fluids, or items contaminated
by blood or body fluids;
• Use only single use needles and perform body art procedures in a sterile area;
• Obtain and properly maintain sterilization equipment;
• Maintain records related to “spore” tests conducted on equipment sterilizers.
The new law also contains extensive procedures for the revocation of establishment licenses where violations have occurred. In addition, violations may be punished by a civil penalty not exceeding $10,000 that includes costs for investigation and prosecution of the violation.
Conclusion
I almost wish I were a fly on the wall – able to sit in on the council discussions related to body art and tongue bifurcation that will inevitably arise in many of Minnesota’s city council chambers in the next few months. Rather than being a new mandate for regulation to cities, this new law presents cities with some interesting choices to consider. I hope this blog entry helps inform what is sure to be a colorful and varied to discussion.
Finally, for those of you who need the details of the new law. Here is a link to take you right there:
https://www.revisor.mn.gov/laws/?id=317&doctype=Chapter&year=2010&type=0
Wednesday, June 23, 2010
Case Law Update: Maryland Supreme Court Strikes Down Fortunetelling Ordinance
Recently the Supreme Court of Maryland ruled that a local county ordinance banning fortunetelling for profit was an unconstitutional restraint on free speech protections. The case can be found at this link: http://mdcourts.gov/opinions/coa/2010/84a09.pdf.
Maryland is, of course, a long ways away from Minnesota. Their cases have no binding precedent in our state. However, the case points out a real problem that can harm Minnesota cities - archaic or out of date ordinances. Ordinances regulating fortunetellers, clairvoyants, phrenologists and similar practitioners tend to be some of the oldest rules on the books. (A phrenologist studies the bumps on your head and tells you traits about your personality – this was very popular in the 1800’s). As a blanket rule, the LMC Codification Service recommends revisiting any ordinance passed before 1950 as a potentially “archaic” ordinance.
Times change. People and common practices change. Legal precedent evolves. As a result, cities need to re-evaluate archaic provisions in ordinances or code books. The story of our changing views and practices related to fortunetelling is a great illustration of the effects the passage of time can have on a city ordinance.
A Brief History of Regulating Fortunetelling:
Many old ordinances prohibiting fortunetelling appear to have been adopted out of a fear that fortunetelling was synonymous with vagrancy, begging or prostitution. Such fortunetellers practiced on the street, in city parks and often visited door to door as aggressive panhandlers.
Modern practices related to clairvoyance and fortunetelling don’t tend to focus on the street corner anymore. Instead, practitioners these days may have actual store fronts centered around “new age” bookstores, meditation or wellness centers. They may offer legitimate product lines of essentials oils, candles and healing herbs in addition to fortunetelling services. Picture peaceful music playing in the background while a study group discusses their “chakras.” After they meditate and have their chakras adjusted, customers may also take a few minutes and get their tarot or “angel” cards read.
This modern type of fortunetelling business has also been the subject of recent controversy in Macon County, GA. The background information on the store’s owner (a retired police officer) and shop offerings certainly offer a sharp contrast to the old fashioned idea of the beggar/fortuneteller. Here is a link to a newspaper article on the Macon County, GA store: http://www.macon.com/2010/04/17/1097252_fortune-telling-fight-headed-for.html.
Practical and Legal Considers with Archaic Ordinances:
When evaluating a potentially archaic ordinance there are both practical and legal considerations. Often times the practical considerations are such that the legal concerns don’t even need to be reached in deciding to amend or discard the ordinance. Here are some practical questions ordinance drafters (and the city councils there serve) should ask when reviewing a potentially “archaic” ordinance (adopted before 1950) and my hypothetical responses/musings related to a fortunetelling ordinance (in italics):
• Why did we regulate this conduct to begin with? (hypothetical answer - to prohibit fortunetelling that was really a front for begging or worse on street corners 50 years ago).
• What types of behavior or negative results were we trying to prevent when the ordinance was adopted over 50 years ago? Does the risk of those behaviors/negative results still exist? (hypothetical answer - are modern people still intimidated by beggars posing as fortunetellers? I guess I might still be intimidated if someone asked, depending on the time of day).
• Do people still commonly try to attempt the prohibited conduct? (hypothetical answer - no one has ever approached me on the street or come to my house in my entire life and offered to read my fortune).
• Has common, accepted practice related to the prohibited conduct changed? (hypothetical answer - yes, practice related to fortunetelling has changed quite a bit. Some of these places do good business as “new age” bookstores and have nice storefronts – offering classes, entertainment, and products such as candles and essential oils. They bring customers to the city, who also stop and buy goodies at the local coffee shop and gas at the corner store).
• Does state law (or some other source of regulation) now offer a better way to regulate the prohibited conduct? (hypothetical answer – I guess, if we’re really afraid of these fortunetellers operating as a front for begging or prostitution, we could pass a panhandling ordinance with the help of our attorney, and there are state laws related to prostitution already on the books. Possibly fortunetellers not operating in a shop would need a peddlers license and background check under our existing city peddlers ordinance).
• Do we feel any urgency related to regulating this conduct anymore? Have we needed to enforce this ordinance in the last 5 years? 10 years? (hypothetical answer - I just don’t see a lot of roving fortunetellers on the street. If they want to have a storefront business in town, they can follow the rules everyone else does for building appearance and maintenance and we have zoning in place too).
There are also legal considerations that need to be taken into account when evaluating archaic ordinances. Here are some important legal questions to ask:
• Do we still have the authority to regulate this area via city ordinance? Have we been superseded by state statute or federal law?
• Has the state or federal courts ruled against cities trying to enforce these types of ordinances?
• Does the ordinance regulate expressive conduct, speech or private human relations in a way that is no longer acceptable under modern state and federal court rulings? In a way that may still be acceptable but nonetheless carries a high risk of challenge in litigation?
Common Archaic Ordinances
Archaic ordinances crop up in many areas outside of fortunetelling. A few examples of archaic ordinances where the city’s authority to regulate has been superseded by state law are:
1) Ordinances on building construction and structure safety (superseded by the MN State Building Code);
2) Ordinances on “drugging” (regulating pharmacies and medical quality in an era before the FDA); and
3) Provisions on public drunkenness (now prohibited by Minn. Stat. 340A.902).
Common examples of ordinances overruled by the courts, include prohibitions related to dressing inappropriately for ones sex (typically prohibiting women from wearing men’s clothes), vaguely written loitering ordinances, restrictions on women serving on city board positions and some broadly drawn restrictions on “lewd” conduct.
Combating the “Charm” of Archaic Ordinances
Occasionally, when reviewing archaic ordinances, a person will ask me “what’s the harm?” or note that they find older ordinances “charming,” or “quaint.” I too value the past, but unfortunately, the city code or ordinance book is not the appropriate place to memorialize those yesteryears. It is important to note that repealed ordinances aren’t simply thrown in the trash. Minnesota law requires cities to maintain copies of old ordinances for their historical value. As a result, taking the provision out of the current ordinance book doesn’t mean it’s lost forever.
As we have discussed above, old ordinances can create liability for cities – particularly when the ordinance implicates speech or fundamental freedoms. But even innocuous archaic ordinances (related to horse hitching, cattle driving, suppression of riots), take up space in an ordinance book, potentially slowing down and consuming city staff time. They can also multiply copying, retrieval and maintenance costs for both paper and electronic records. Finally, archaic ordinances can create a perception that city regulation is behind the times and therefore not conducive to economic or cultural initiatives that wish to invest in the city.
Conclusion
I’m grateful to the courts of the great State of Maryland for giving us this chance to discuss the problems that archaic ordinances can create for Minnesota cities. While fortunetelling ordinances appear to be relatively rare in Minnesota, archaic ordinances on many other subjects frequently pop up before the LMC Codification Service. I’m predicting that the Maryland experience may give many people pause to consider the (hopefully limited) future of their archaic ordinances.
Maryland is, of course, a long ways away from Minnesota. Their cases have no binding precedent in our state. However, the case points out a real problem that can harm Minnesota cities - archaic or out of date ordinances. Ordinances regulating fortunetellers, clairvoyants, phrenologists and similar practitioners tend to be some of the oldest rules on the books. (A phrenologist studies the bumps on your head and tells you traits about your personality – this was very popular in the 1800’s). As a blanket rule, the LMC Codification Service recommends revisiting any ordinance passed before 1950 as a potentially “archaic” ordinance.
Times change. People and common practices change. Legal precedent evolves. As a result, cities need to re-evaluate archaic provisions in ordinances or code books. The story of our changing views and practices related to fortunetelling is a great illustration of the effects the passage of time can have on a city ordinance.
A Brief History of Regulating Fortunetelling:
Many old ordinances prohibiting fortunetelling appear to have been adopted out of a fear that fortunetelling was synonymous with vagrancy, begging or prostitution. Such fortunetellers practiced on the street, in city parks and often visited door to door as aggressive panhandlers.
Modern practices related to clairvoyance and fortunetelling don’t tend to focus on the street corner anymore. Instead, practitioners these days may have actual store fronts centered around “new age” bookstores, meditation or wellness centers. They may offer legitimate product lines of essentials oils, candles and healing herbs in addition to fortunetelling services. Picture peaceful music playing in the background while a study group discusses their “chakras.” After they meditate and have their chakras adjusted, customers may also take a few minutes and get their tarot or “angel” cards read.
This modern type of fortunetelling business has also been the subject of recent controversy in Macon County, GA. The background information on the store’s owner (a retired police officer) and shop offerings certainly offer a sharp contrast to the old fashioned idea of the beggar/fortuneteller. Here is a link to a newspaper article on the Macon County, GA store: http://www.macon.com/2010/04/17/1097252_fortune-telling-fight-headed-for.html.
Practical and Legal Considers with Archaic Ordinances:
When evaluating a potentially archaic ordinance there are both practical and legal considerations. Often times the practical considerations are such that the legal concerns don’t even need to be reached in deciding to amend or discard the ordinance. Here are some practical questions ordinance drafters (and the city councils there serve) should ask when reviewing a potentially “archaic” ordinance (adopted before 1950) and my hypothetical responses/musings related to a fortunetelling ordinance (in italics):
• Why did we regulate this conduct to begin with? (hypothetical answer - to prohibit fortunetelling that was really a front for begging or worse on street corners 50 years ago).
• What types of behavior or negative results were we trying to prevent when the ordinance was adopted over 50 years ago? Does the risk of those behaviors/negative results still exist? (hypothetical answer - are modern people still intimidated by beggars posing as fortunetellers? I guess I might still be intimidated if someone asked, depending on the time of day).
• Do people still commonly try to attempt the prohibited conduct? (hypothetical answer - no one has ever approached me on the street or come to my house in my entire life and offered to read my fortune).
• Has common, accepted practice related to the prohibited conduct changed? (hypothetical answer - yes, practice related to fortunetelling has changed quite a bit. Some of these places do good business as “new age” bookstores and have nice storefronts – offering classes, entertainment, and products such as candles and essential oils. They bring customers to the city, who also stop and buy goodies at the local coffee shop and gas at the corner store).
• Does state law (or some other source of regulation) now offer a better way to regulate the prohibited conduct? (hypothetical answer – I guess, if we’re really afraid of these fortunetellers operating as a front for begging or prostitution, we could pass a panhandling ordinance with the help of our attorney, and there are state laws related to prostitution already on the books. Possibly fortunetellers not operating in a shop would need a peddlers license and background check under our existing city peddlers ordinance).
• Do we feel any urgency related to regulating this conduct anymore? Have we needed to enforce this ordinance in the last 5 years? 10 years? (hypothetical answer - I just don’t see a lot of roving fortunetellers on the street. If they want to have a storefront business in town, they can follow the rules everyone else does for building appearance and maintenance and we have zoning in place too).
There are also legal considerations that need to be taken into account when evaluating archaic ordinances. Here are some important legal questions to ask:
• Do we still have the authority to regulate this area via city ordinance? Have we been superseded by state statute or federal law?
• Has the state or federal courts ruled against cities trying to enforce these types of ordinances?
• Does the ordinance regulate expressive conduct, speech or private human relations in a way that is no longer acceptable under modern state and federal court rulings? In a way that may still be acceptable but nonetheless carries a high risk of challenge in litigation?
Common Archaic Ordinances
Archaic ordinances crop up in many areas outside of fortunetelling. A few examples of archaic ordinances where the city’s authority to regulate has been superseded by state law are:
1) Ordinances on building construction and structure safety (superseded by the MN State Building Code);
2) Ordinances on “drugging” (regulating pharmacies and medical quality in an era before the FDA); and
3) Provisions on public drunkenness (now prohibited by Minn. Stat. 340A.902).
Common examples of ordinances overruled by the courts, include prohibitions related to dressing inappropriately for ones sex (typically prohibiting women from wearing men’s clothes), vaguely written loitering ordinances, restrictions on women serving on city board positions and some broadly drawn restrictions on “lewd” conduct.
Combating the “Charm” of Archaic Ordinances
Occasionally, when reviewing archaic ordinances, a person will ask me “what’s the harm?” or note that they find older ordinances “charming,” or “quaint.” I too value the past, but unfortunately, the city code or ordinance book is not the appropriate place to memorialize those yesteryears. It is important to note that repealed ordinances aren’t simply thrown in the trash. Minnesota law requires cities to maintain copies of old ordinances for their historical value. As a result, taking the provision out of the current ordinance book doesn’t mean it’s lost forever.
As we have discussed above, old ordinances can create liability for cities – particularly when the ordinance implicates speech or fundamental freedoms. But even innocuous archaic ordinances (related to horse hitching, cattle driving, suppression of riots), take up space in an ordinance book, potentially slowing down and consuming city staff time. They can also multiply copying, retrieval and maintenance costs for both paper and electronic records. Finally, archaic ordinances can create a perception that city regulation is behind the times and therefore not conducive to economic or cultural initiatives that wish to invest in the city.
Conclusion
I’m grateful to the courts of the great State of Maryland for giving us this chance to discuss the problems that archaic ordinances can create for Minnesota cities. While fortunetelling ordinances appear to be relatively rare in Minnesota, archaic ordinances on many other subjects frequently pop up before the LMC Codification Service. I’m predicting that the Maryland experience may give many people pause to consider the (hopefully limited) future of their archaic ordinances.
Wednesday, June 16, 2010
2010 State Law Changes Affecting City Codes
We have reached the end of the 2010 MN state legislative session. Here is a "hit list" of new laws that may require changes to local city codes.
This entry is meant to complement the LMC Intergovernmental Relations Department’s 2010 Law Summaries available on the League of MN Cities website at http://www.lmc.org/page/1/currentlaw-summaries.jsp.
I have summarized the law change briefly and listed the page number in the 2010 Law Summaries to consult for more detail.
1. BUILDING CODES, NUISANCES AND LAND USE
Property Maintenance/Nuisance Structure Ordinances. Minn. Stat. § 326B.121 amended to affirm city authority to adopt local ordinances requiring structures to be maintained in a safe and sanitary condition or in good repair. Local ordinance may establish timelines for completion of exterior work on a structure, so long as the regulation does not require completion of exterior work earlier than 180 days following the issuance of the permit. This statute addresses city concerns after City of Morris v. Sax Investments, Inc., 749 N.W.2d 1 (Minn.,2008) and Wessman v. Mankato, No. A08-0273. (Minn. App.2008). (See page 4 of the 2010 Law Summaries for more information).
Sign Ordinances. Minn. Stat. § 211B.045 amended. City must permit all noncommercial signs of any size to be posted in any number from 46 days before the state primary in a state general election year until ten days following the state general election. Previously this statute allowed the postings beginning August 1. (See MN Laws 2010 Chapter 184 Section 42 at this link: https://www.revisor.mn.gov/laws/?year=2010&type=0&keyword_type=all&keyword=211B.045&doctype=Chapter&id=184).
Shoreland Ordinances. Minn. Stat. § 103F.351, subdivision 4, is amended permit the MN DNR to engage in rulemaking to set conditional use permit standards for zoning and land use ordinances for lands protected by the federal Wild and Scenic Rivers Act, and the federal Lower St. Croix River Act of 1972. These rules will pre-empt local requirements. (See page 39 of the 2010 Law Summaries for more information).
2. CITY ADMINISTRATION
City Administration Ordinances/City Charters. Minn. Stat. § 410.191 and § 412.02 were amended to prohibit the mayor or city council members from being employed by the city in a permanent full-time position. The city does not need to adopt an ordinance to effectuate this provision, but conflicting ordinance or charter provisions may need to be repealed. (See page 23 of the 2010 Law Summaries for more information).
3. LICENSING
Liquor Licensing & Regulation Ordinances.
Minn. Stat. § 340A.409 Subd. 1 amended to raise minimum insurance requirements for retail liquor licenses.
Minn. Stat. § 340A.409 Subd. 4 amended to exempt wholesalers who donate wine to an organization for a wine tasting conducted under section Minn. Stat. § 340A.418 or Minn. Stat. § 340A.419 from the minimum insurance requirements.
Minn. Stat. § 340A.419 amended to allow the tasting of malt liquor and other spirits at wine tastings.
(See page 42 of the 2010 Law Summaries for more information).
Tobacco Licensing & Regulation Ordinances. Minn. Stat. § 297F.01, Minn. Stat. § 325F.77, Minn. Stat. § 461.12, Minn. Stat. § 461.18, Minn. Stat. § 609.685 amended to allow city ordinance to regulate tobacco related products (including new devices for snorting, sniffing and inhaling) along the same lines as traditional smoking tobacco. Minn. Stat. § 609.6855 was created to read to criminalize selling/providing tobacco related products and the sale of nicotine delivery products to minors. (See page 34 of the 2010 Law Summaries for more information).
Tattoo, Body Piercing & Body Art Ordinances. New law Minn. Stat. § 146B was created to regulate body art establishments (including piercing, branding, scarification and tattooing). City ordinance may regulate these establishments, provided that their requirements are as strict as the state requirements. Individuals working at the facility must obtain a state professional license. (See page 34 of the 2010 Law Summaries for more information).
4. UTILITIES
Sewer/Water Ordinances. Minn. Stat. § 326B.43 amended to permit the State Plumbing Board engage in rulemaking to set minimum statewide standards for all new plumbing installations performed anywhere in the state. These rules will pre-empt local requirements for installations. (See page 4 of the 2010 Law Summaries for more information).
Air Conditioning Standards. Minn. Stat. § 326B.52 & § 326B.53 amended to permit the State Plumbing Board to engage in rulemaking to set minimum statewide standards for all new water conditioning servicing and water conditioning installations, including additions, extensions, alterations, and replacement. These rules will pre-empt local requirements for installations. (See page 4 of the 2010 Law Summaries for more information).
5. VEHICLES AND STREETS
Abandoned & Junk Vehicles/Impoundment Ordinances.
Minn. Stat. § 168B.06 was amended to exclude weekend and legal holiday days from the time period for giving written notice of a vehicle being impounded. (See page 71 of the 2010 Law Summaries for more information).
Minn. Stat. § 168B.06 was amended remove this language “or has a household income at or below 50 percent of state median income” from the provisions allowing certain low-income persons to retrieve belongings from impounded cars. The same language was removed from the notice of impound provisions. (See page 71 of the 2010 Law Summaries for more information).
Minn. Stat. § 169.041 was amended to clarify authority to tow vehicles in numerous situations, including where a vehicle blocks signage, driveways, hydrants and alleys. (See page 73 of the 2010 Law Summaries for more information).
New State Traffic Offenses.
Minn. Stat § 169.15 was amended to designate “gridlocking” as a state traffic offense. Local ordinance on this subject is pre-empted. (See page 73 of the 2010 Law Summaries for more information).
Minn. Stat. § 169.26 was amended to designate pedestrian entrance into railroad crossings when the bars are down or when a signal is audible as a state traffic offense. Local ordinance on this subject is pre-empted. (See page 73 of the 2010 Law Summaries for more information).
All-Terrain Vehicles. Minn. Stat. § 84.92, Subd 9 & 10 changed the definitions related to weights for Class 1 and 2 all-terrain vehicles (ATV). Local ordinances may have utilized the previous definitions and need to reviewed. (See MN Laws 2010 Chapter 361 Section 15 & 16 at this link: https://www.revisor.mn.gov/laws/?year=2010&type=0&keyword_type=all&keyword=84.92&doctype=Chapter&id=361).
Street Regulation Ordinances/Heavy Vehicle Permits. Minn. Stat. § 169.801 - 169.87 were modified related to heavy vehicles. If the city regulates vehicle weights on its streets or issues permits for heavy vehicles pursuant to city ordinance, these provisions should be reviewed. (See page 74 of the 2010 Law Summaries for more information).
CONCLUSION
State law changes can often require a concurrent local change to city ordinance. In fact, a busy legislative year can poke numerous holes in an otherwise sound local code. Out of date codes can create unwanted liability for a city or may render needed provisions unenforceable. On a more positive note, sometimes legislative changes grant new powers and authority to cities—also requiring changes to local ordinance.
Monday, June 14, 2010
Hot Topic: Urban Chickens & Local Regulation
Urban chickens are a definitely a trend. A simple Google search will clue you into the expanding world of city chickens and the people who love and vocally advocate for them. Faced with more requests from residents, some cities are drafting specific ordinances to address the issue. Alexis Stangl, an LMC attorney colleague, has compiled a sampling of chicken ordinances that may be of assistance. If you are looking to regulate chickens, try these sample ordinances:• City of Duluth (Chapter 6, Article VII, Sections 6-79, 6-79.1): http://www.municode.com/resources/gateway.asp?pid=50009&sid=23
• Fergus Falls, Ordinance No 108, Sixth Series
http://www.ci.fergus-falls.mn.us/vertical/Sites/%7BC83A9759-035D-4EAB-A39F-EA24B2F5336D%7D/uploads/%7B64ADBD63-75F8-4D2F-AE1D-FF654096D49C%7D.DOC
• Grand Rapids (Chapter 10, Article III): http://library1.municode.com/default-test/home.htm?infobase=13419&doc_action=whatsnew
• Minneapolis (Title 4, Chapter 70): http://www.municode.com/Resources/gateway.asp?pid=11490&sid=23
Common features of chicken ordinances include:
• Permit requirements;
• Limits on numbers of chickens (either a flat number or a sliding scale based on acreage);
• Limits on districts in the city where they may be located;
• Living conditions for the chickens (coop size, etc);
• Requiring written permission from neighbors;
• Location of coops and runs (usually must be located in rear yard);
• Restrictions on keeping male roosters;
• Minimum acreage requirements for lots where chickens are raised.
However, it is important to note that the most common ordinance provision is to prohibit chickens altogether as farm animals (or strictly limit their presence to agricultural lots). Cities issuing permits for and allowing urban chickens still continue to be a rarity in Minnesota.
An interesting final note from my Google search on urban chickens is that there now appear to be urban chicken “rescue” operations. Like dog rescue operations, these sites indicate that the keeping of chickens can create problems for the animals and public related to neglect or maltreatment. Time limits on permits, requiring permit renewals, procedures for permit revocation and inspections can be drafted into ordinances to help limit these types of problems. State law contains explicit prohibitions at Minn. Stat. § 343.31 (find at https://www.revisor.mn.gov/statutes/?id=343.31) on the keeping and use of fighting animals (including chickens). It may be helpful to include a reference to the statute in local ordinance.
Monday, June 7, 2010
Hot Topic: Fence Ordinances
The Star Tribune recently ran an article identifying a new trend in home improvement – the construction of large “privacy” fences in residential neighborhoods. These fences tend to be in the 6 to 8 foot range, dwarfing the standard front yard white picket fence of yesteryear. The article notes “the passion for fences has led some cities to refine their ordinances to prevent people from erecting too-tall fences or building fences with the ugly side facing out.”
The article muses that the fence trend may be related to the recent problems in the real estate market. Homeowners, who in a hotter housing market may have moved to avoid the sight of “their neighbor in the hot tub,” can’t move – so they build a fence instead. State law provides only limited regulation of fences. For example, Minn. Stat. § 561.02 prohibits “spite fences” as a private nuisance. The lack of state regulation means that most fence regulation will be an entirely local, city matter.
The Star Tribune article prompted me to review the cache of fence ordinances at LMC. I was curious also, to investigate whether or not challenges to city fence regulations were common. Challenges have occurred – most notably the recent unpublished case of State v. Enright, A09-795 (MN Ct. App. 2010)(this case is discussed in previous blog entries). Generally, the city’s authority to regulate fences for the public welfare has been upheld in Minnesota and nationally.
A. City Regulation of Fences.
Why do cities regulate fences? There is certainly an aesthetic concern at play. Tall, front yard fences and poorly maintained fences can have a negative effect on neighborhood surroundings. However, most cities do not regulate out of concern for aesthetics alone. Common public safety concerns leading to fence regulation are:
• Preventing tall fences from obstructing clear view on streets for vehicles, children and pedestrians;
• Greater ease of access for fire personnel;
• Clearer view of streets for patrolling police,
• Prohibiting dangerous materials (such as barbed wire and electrified fencing) from use in residential areas;
• Prohibiting poorly maintained fences (which may fall into the right of way or on passersby).
In reviewing the cache of LMC ordinances, the most common features in fence ordinances are:
• Limiting height in front yards (usually under 4 feet);
• Allowance for taller backyard fences (usually 6 feet);
• Regulation of fences on corner lots that may limit sight lines/sight triangle;
• Fence construction materials requirements (some list either prohibited materials, permitted materials or both);
• Requiring the fence installer to construct fence solely on their own property (and demonstrate property lines);
• Requiring the “finished” side of the fence to face outward towards the neighbors;
• Requirements for fence maintenance and repair;
• Setbacks from property lines or natural features such as lakes.
B. Fence Ordinances and Void for Vagueness Concerns.
As demonstrated in Enright (cited above), fence ordinances are susceptible to challenges that they are void for vagueness. All ordinances, including fence ordinances, must be clearly drawn as to give an ordinary person an idea of the type of conduct prohibited. State v. Newstrom, 371 N.W.2d 525 (Minn.,1985).
1. Definitions: Fence
In reviewing numerous city fence ordinances, I noted that some significant definitions were missing. This is potentially problematic should an ordinance be challenged in court. Specifically, some ordinances did not define the term “fence.” If the term fence is undefined, you may run into problems enforcing your “fence” ordinance against properties where the clever property owner insists they have constructed “walls.” In addition, you may wish to consider – can shrubbery be a fence (when planted along a property line)? How about a trellis or a landscaping berm?
2. Definitions: Good Repair
Cities also tend to require that fences be “kept in good repair.” It may be helpful to spend some time thinking about criteria that indicate good/bad repair and put those specific criteria into the ordinance itself. For example, does good repair mean the fence is painted or treated with a weather resistant coating? Free of rust? Has strong supports so it won’t fall? Does a fence in bad repair have missing slats, holes or protruding pieces? General language such as “good repair” is permissible in an ordinance – and needed so that the ordinance can apply to a variety of situations. But an ordinance must also contain direction to the staff enforcing the ordinance that limits their discretion to avoid arbitrary enforcement. State v. Newstrom, 371 N.W.2d 525 (Minn.,1985). As noted in State v. Reha, 483 N.W.2d 688 (Minn.,1992), one person’s concept of “clean” or “well-maintained” can be wildly different from another’s.
Here is some good sample language related to fence maintenance from the Apple Valley City Code § 155.351.
C) Fence regulations. A fence is a public nuisance and prohibited accordingly if it does not comply with the following requirements:
(1) The fence shall be firmly fastened and anchored in order that it is not leaning or otherwise in the stage of collapse.
(2) The fence shall be maintained in sound and good repair and free from deterioration, loose or rotting pieces, or holes, breaks, or gaps not otherwise intended in the original design of the fence. The fence shall be free from any defects or condition which makes the fence hazardous.
(3) All exterior wood surfaces of any fence, other than decay resistant woods, shall be protected from the elements by paint or other protective surface coating or treatment, which shall be maintained in good repair to provide the intended
protection from the elements.
(4) No fence section shall have peeling, cracked, chipped or otherwise deteriorated surface finish, including but not limited to: paint or other protective coating or treatment, on more than 20% of any one linear ten-foot section of the fence.
(5) Any link fence, where permitted, shall be constructed and maintained in such a manner that no barbed ends be located at the top of the fence.
3. Definitions: Standards for Measuring Height
It may also be helpful to check if your ordinance specifies how height will be measured. Specifically, will the height be measured from the bottom of the fence or the grade? For example, this seems like a good provision from the Lake Elmo City Code § 154.129:
(B) Fence height in interior yards. No fence shall be constructed exceeding 72 inches in height measured from grade in interior yards; and, any portion of such fence above 42 inches measured from grade shall be open to light and air over 75% of the surface area.
(D) Grade defined. The grade from which fence height measurements are calculated shall only be from either natural grade or grade modified responsive to a grading plan approved by the city; and, shall not include the height of berms or introduced increases in ground elevation that would raise the effective fence height over that which would be otherwise permitted by this subchapter, except that a combination of raised grade and fence that would exceed in sum the fence height permitted by this section may be specifically approved by the City Council as an element of a subdivision plat or commercial site plan approval establishing specific property grading and topography.
This type of definition will prevent the clever/determined homeowner from shoring up an earthen berm underneath the actual fence structure intended to increase the height of the fence.
C. Enforceability and Potential Conflicts with Other Provisions:
In order to facilitate ease in enforcement, the city may wish to consider any conflicts that may arise among chapters in its code book. Many cities may have a standalone fence ordinance as a portion of their zoning or nuisance provisions. Other cities have fencing provisions scattered throughout the code. It is important to make sure that all the fence the provisions harmonize. For example, do your general fencing requirements take into account other ordinance provisions for fencing in dangerous dogs? Do they take into account required fences for private recreational facilities such as pool and tennis courts? How about screening in industrial/commercial areas for outside storage or refuse collection areas?
You may also wish to consider (and build into your ordinance) areas where different fencing regulations may be appropriate. For example, you may consider ordinance provisions that allow:
• Residents on busy highways to build taller fences abutting the road;
• Residents near commercial or industrial uses to build taller fences;
• Agricultural districts to utilize different fencing materials.
Recognizing that a “one size fits all” approach may not work for your city when drafting an ordinance can reduce the inevitable requests for zoning variances and ease administration.
D. Conclusion
LMC has sample fence regulations in its files going back to the 1920s. As a result, I’m not so sure that the Star Tribune has identified a “bonafide” new trend in privacy fences. However, the article serves as a nice reminder to review and consider older fence ordinances. These ordinances, just like the fences they regulate, could always be spruced up with a new coat of paint.
The Star Tribune article referenced herein is available at this link:
http://www.startribune.com/lifestyle/homegarden/95161789.html?page=1&c=y
Here is a link to help you find the Lake Elmo and Apple Valley City Codes (used as samples above): http://www.amlegal.com/library/mn/index.shtml
The article muses that the fence trend may be related to the recent problems in the real estate market. Homeowners, who in a hotter housing market may have moved to avoid the sight of “their neighbor in the hot tub,” can’t move – so they build a fence instead. State law provides only limited regulation of fences. For example, Minn. Stat. § 561.02 prohibits “spite fences” as a private nuisance. The lack of state regulation means that most fence regulation will be an entirely local, city matter.
The Star Tribune article prompted me to review the cache of fence ordinances at LMC. I was curious also, to investigate whether or not challenges to city fence regulations were common. Challenges have occurred – most notably the recent unpublished case of State v. Enright, A09-795 (MN Ct. App. 2010)(this case is discussed in previous blog entries). Generally, the city’s authority to regulate fences for the public welfare has been upheld in Minnesota and nationally.
A. City Regulation of Fences.
Why do cities regulate fences? There is certainly an aesthetic concern at play. Tall, front yard fences and poorly maintained fences can have a negative effect on neighborhood surroundings. However, most cities do not regulate out of concern for aesthetics alone. Common public safety concerns leading to fence regulation are:
• Preventing tall fences from obstructing clear view on streets for vehicles, children and pedestrians;
• Greater ease of access for fire personnel;
• Clearer view of streets for patrolling police,
• Prohibiting dangerous materials (such as barbed wire and electrified fencing) from use in residential areas;
• Prohibiting poorly maintained fences (which may fall into the right of way or on passersby).
In reviewing the cache of LMC ordinances, the most common features in fence ordinances are:
• Limiting height in front yards (usually under 4 feet);
• Allowance for taller backyard fences (usually 6 feet);
• Regulation of fences on corner lots that may limit sight lines/sight triangle;
• Fence construction materials requirements (some list either prohibited materials, permitted materials or both);
• Requiring the fence installer to construct fence solely on their own property (and demonstrate property lines);
• Requiring the “finished” side of the fence to face outward towards the neighbors;
• Requirements for fence maintenance and repair;
• Setbacks from property lines or natural features such as lakes.
B. Fence Ordinances and Void for Vagueness Concerns.
As demonstrated in Enright (cited above), fence ordinances are susceptible to challenges that they are void for vagueness. All ordinances, including fence ordinances, must be clearly drawn as to give an ordinary person an idea of the type of conduct prohibited. State v. Newstrom, 371 N.W.2d 525 (Minn.,1985).
1. Definitions: Fence
In reviewing numerous city fence ordinances, I noted that some significant definitions were missing. This is potentially problematic should an ordinance be challenged in court. Specifically, some ordinances did not define the term “fence.” If the term fence is undefined, you may run into problems enforcing your “fence” ordinance against properties where the clever property owner insists they have constructed “walls.” In addition, you may wish to consider – can shrubbery be a fence (when planted along a property line)? How about a trellis or a landscaping berm?
2. Definitions: Good Repair
Cities also tend to require that fences be “kept in good repair.” It may be helpful to spend some time thinking about criteria that indicate good/bad repair and put those specific criteria into the ordinance itself. For example, does good repair mean the fence is painted or treated with a weather resistant coating? Free of rust? Has strong supports so it won’t fall? Does a fence in bad repair have missing slats, holes or protruding pieces? General language such as “good repair” is permissible in an ordinance – and needed so that the ordinance can apply to a variety of situations. But an ordinance must also contain direction to the staff enforcing the ordinance that limits their discretion to avoid arbitrary enforcement. State v. Newstrom, 371 N.W.2d 525 (Minn.,1985). As noted in State v. Reha, 483 N.W.2d 688 (Minn.,1992), one person’s concept of “clean” or “well-maintained” can be wildly different from another’s.
Here is some good sample language related to fence maintenance from the Apple Valley City Code § 155.351.
C) Fence regulations. A fence is a public nuisance and prohibited accordingly if it does not comply with the following requirements:
(1) The fence shall be firmly fastened and anchored in order that it is not leaning or otherwise in the stage of collapse.
(2) The fence shall be maintained in sound and good repair and free from deterioration, loose or rotting pieces, or holes, breaks, or gaps not otherwise intended in the original design of the fence. The fence shall be free from any defects or condition which makes the fence hazardous.
(3) All exterior wood surfaces of any fence, other than decay resistant woods, shall be protected from the elements by paint or other protective surface coating or treatment, which shall be maintained in good repair to provide the intended
protection from the elements.
(4) No fence section shall have peeling, cracked, chipped or otherwise deteriorated surface finish, including but not limited to: paint or other protective coating or treatment, on more than 20% of any one linear ten-foot section of the fence.
(5) Any link fence, where permitted, shall be constructed and maintained in such a manner that no barbed ends be located at the top of the fence.
3. Definitions: Standards for Measuring Height
It may also be helpful to check if your ordinance specifies how height will be measured. Specifically, will the height be measured from the bottom of the fence or the grade? For example, this seems like a good provision from the Lake Elmo City Code § 154.129:
(B) Fence height in interior yards. No fence shall be constructed exceeding 72 inches in height measured from grade in interior yards; and, any portion of such fence above 42 inches measured from grade shall be open to light and air over 75% of the surface area.
(D) Grade defined. The grade from which fence height measurements are calculated shall only be from either natural grade or grade modified responsive to a grading plan approved by the city; and, shall not include the height of berms or introduced increases in ground elevation that would raise the effective fence height over that which would be otherwise permitted by this subchapter, except that a combination of raised grade and fence that would exceed in sum the fence height permitted by this section may be specifically approved by the City Council as an element of a subdivision plat or commercial site plan approval establishing specific property grading and topography.
This type of definition will prevent the clever/determined homeowner from shoring up an earthen berm underneath the actual fence structure intended to increase the height of the fence.
C. Enforceability and Potential Conflicts with Other Provisions:
In order to facilitate ease in enforcement, the city may wish to consider any conflicts that may arise among chapters in its code book. Many cities may have a standalone fence ordinance as a portion of their zoning or nuisance provisions. Other cities have fencing provisions scattered throughout the code. It is important to make sure that all the fence the provisions harmonize. For example, do your general fencing requirements take into account other ordinance provisions for fencing in dangerous dogs? Do they take into account required fences for private recreational facilities such as pool and tennis courts? How about screening in industrial/commercial areas for outside storage or refuse collection areas?
You may also wish to consider (and build into your ordinance) areas where different fencing regulations may be appropriate. For example, you may consider ordinance provisions that allow:
• Residents on busy highways to build taller fences abutting the road;
• Residents near commercial or industrial uses to build taller fences;
• Agricultural districts to utilize different fencing materials.
Recognizing that a “one size fits all” approach may not work for your city when drafting an ordinance can reduce the inevitable requests for zoning variances and ease administration.
D. Conclusion
LMC has sample fence regulations in its files going back to the 1920s. As a result, I’m not so sure that the Star Tribune has identified a “bonafide” new trend in privacy fences. However, the article serves as a nice reminder to review and consider older fence ordinances. These ordinances, just like the fences they regulate, could always be spruced up with a new coat of paint.
The Star Tribune article referenced herein is available at this link:
http://www.startribune.com/lifestyle/homegarden/95161789.html?page=1&c=y
Here is a link to help you find the Lake Elmo and Apple Valley City Codes (used as samples above): http://www.amlegal.com/library/mn/index.shtml
Wednesday, June 2, 2010
5 Minute Video on the MN Basic Code
The MN Basic Code (MBC) is one of the core services provided by LMC Codification. The MBC is a code book designed specifically for smaller cities user 1,000. More about the MBC can be learned from this new 5 minute narrated presentation. http://www.lmc.org/media/video/1/mnbasiccode.swf
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