A Minnesota Defense Lawyer Explains What a § 609.6855 Citation Means for Your Business and Your Future
In a landscape of ever-changing products and regulations, you’ve found yourself on the wrong side of a criminal citation. You or your employee have been charged under Minnesota Statute § 609.6855 for selling a nicotine delivery product to someone under the age of 21. You’re likely feeling singled out, frustrated, and deeply concerned about what this means. Perhaps the product was new to your store, and the rules were unclear. Maybe the customer presented an ID that looked valid, or the sale was a simple mistake made during a busy shift. The reality is that state and local authorities are aggressively targeting retailers with compliance stings, often using underage decoys, to enforce these laws. You’re right to be worried. A conviction can lead to fines, a criminal record for the employee, and escalating administrative penalties that could threaten your business’s ability to sell these products at all. It is a serious matter with serious consequences. But an accusation is not a conviction. You have rights, and you have defenses. As a Minnesota criminal defense attorney who has defended retailers across the state, from vape shops in Minneapolis and St. Paul to convenience stores in Rochester and Duluth, I know how to fight these charges. You don’t have to accept the citation as a final verdict. I am here to protect your rights, your business, and your good name.
What “Sale of Nicotine Delivery Products” Actually Means in Minnesota
When you are charged under Minnesota Statute § 609.6855, the government is accusing you of selling a specific category of products to a person under 21. This law was created to fill the gap for items that deliver nicotine or lobelia but are not considered traditional “tobacco” or “electronic delivery devices” under the main tobacco statute. This can include products like nicotine pouches, lozenges, gels, or other novel items intended for human consumption. The law is designed to be a catch-all for new and emerging nicotine products to ensure they are also kept out of the hands of young people.
A Minnesota charge for selling nicotine delivery products almost always stems from a controlled buy or “compliance check,” where law enforcement sends an underage person into your store to attempt a purchase. The core of the offense is the act of selling, giving, or otherwise furnishing one of these specific products to someone under 21. For a retailer in a Minnesota city like Bloomington, Plymouth, or Maple Grove, this charge means you or your employee have been accused of failing an age-verification check, and the state is now pursuing criminal and administrative penalties.
Minnesota Law on Sale of Nicotine Delivery Products to Persons Under Age 21 — Straight from the Statute
The legal authority for the charge you are facing is found in Minnesota Statute § 609.6855. This law defines the offense, establishes the penalties, and most importantly, provides a critical affirmative defense for retailers who act in good faith. A careful reading of the statute is the essential first step in building your case.
Here is the exact language of the key subdivision of the statute:
609.6855 SALE OF NICOTINE DELIVERY PRODUCTS TO PERSONS UNDER AGE 21.
Subdivision 1.Penalty to sell or furnish. (a) Any person 21 years of age or older who sells, gives, or otherwise furnishes to a person under the age of 21 years a product containing or delivering nicotine or lobelia, whether natural or synthetic, intended for human consumption, or any part of such a product, that is not tobacco or an electronic delivery device as defined by section 609.685, is guilty of a petty misdemeanor for the first violation. Whoever violates this subdivision a subsequent time within five years of a previous conviction under this subdivision is guilty of a misdemeanor.
(b) It is an affirmative defense to a charge under this subdivision if the defendant proves by a preponderance of the evidence that the defendant reasonably and in good faith relied on proof of age as described in section 340A.503, subdivision 6.
Breaking Down the Legal Elements of the Charge in Minnesota
For the state to secure a conviction against you or your employee, it must prove every element of the offense beyond a reasonable doubt. Even for a petty misdemeanor, this burden remains squarely on the prosecutor. My job is to deconstruct their evidence and identify every weakness, creating the reasonable doubt necessary to win your case.
- A Seller 21 or Older: The statute specifies that the person making the sale must be at least 21 years old. This is a required element the prosecutor must establish, though it is rarely in dispute.
- The Act of Furnishing: The state must prove that you or your employee “sells, gives, or otherwise furnishes” the product. This is typically proven by the officer supervising the compliance check and the underage decoy who will testify that a transaction occurred. We will examine the details of this alleged transfer to ensure the evidence is clear and uncontested.
- A Prohibited Nicotine Delivery Product: This is a crucial element. The prosecutor must prove the item sold was a product containing nicotine or lobelia that is not a traditional tobacco product or an e-cigarette covered by the other statute. This could be nicotine pouches, lozenges, or other novel products. If the product doesn’t fit this specific definition, the charge is invalid.
- Recipient Under 21: The state must provide definitive proof that the person who received the product was under the age of 21 at the moment of the transaction. We will verify the birthdate and identity of the underage decoy to ensure there are no factual errors in the state’s evidence.
Penalties for a Conviction in Minnesota Can Be Severe
Do not underestimate the impact of a conviction under this statute. What starts as a petty misdemeanor citation for an employee can quickly escalate into significant financial and operational problems for the business license holder. The state uses a two-pronged approach of criminal and administrative penalties to ensure compliance.
Criminal Penalties for the Clerk
The individual who made the sale faces criminal charges with escalating severity:
- First Violation: A petty misdemeanor, which is a non-criminal offense but results in a conviction on the person’s record and a fine of up to $300.
- Second Violation (within five years): A misdemeanor, which is a crime punishable by up to 90 days in jail, a fine of up to $1,000, and a permanent criminal record.
Administrative Penalties for the Business
The business holding the tobacco/nicotine license faces separate, and often more costly, administrative penalties. These are civil penalties that can be imposed regardless of the outcome of the criminal case.
- Fines: These typically start at $300-$500 for a first offense and can escalate to $1,000 or more for subsequent violations.
- License Suspension: A third violation within a 36-month period can trigger a mandatory suspension of your license to sell these products for at least seven days. A fourth violation can lead to revocation. A license suspension can be financially devastating for a convenience store or gas station.
The Minnesota sentencing and penalty structure is designed to put significant pressure on retailers to enforce the law strictly.
What This Charge Looks Like in Real Life — Common Scenarios in Minnesota
These citations almost always result from a targeted compliance check, but the real-world mistakes that lead to a failed check are often understandable errors made under pressure. Here are some common scenarios that lead to charges under § 609.6855 across Minnesota.
The New Product at a St. Cloud Convenience Store
Your store in St. Cloud just started carrying a new brand of nicotine pouches. An employee, accustomed to selling traditional tobacco, is less familiar with this new product. During a compliance check, an underage decoy asks for the pouches. The employee, flustered by the new item and a line of customers, completes the sale without asking for ID. The supervising officer then enters and issues a citation for a violation of § 609.6855.
The Good-Faith Mistake in Eagan
A clerk at a gas station in Eagan is presented with a driver’s license that appears to be valid. The photo is a decent match, and the birthdate indicates the customer is 21. The clerk, believing they are following the rules, sells a can of nicotine lozenges. It turns out the ID is a high-quality fake used by a police decoy. Despite the clerk’s good intentions, they are now cited, and the burden shifts to them to prove their reliance on the ID was reasonable.
The Distracted Employee in a Brooklyn Park Shop
During a busy afternoon at a retail shop in Brooklyn Park, a young-looking customer approaches the counter with a nicotine product. The sole employee on duty is handling multiple tasks—answering the phone, stocking shelves, and managing the cash register. In a moment of distraction, the employee fails to ask for ID and makes the sale. This simple oversight during a hectic moment results in a failed compliance check and a criminal citation.
The Social Sharing Scenario
This law isn’t limited to retail sales. Imagine you are over 21 and have a can of nicotine pouches at a gathering in your Minneapolis apartment. A 20-year-old friend asks to try one. You give them a pouch without thinking about the legal implications. The act of “giving” or “furnishing” a nicotine product to someone under 21 is a violation of the statute, and if witnessed by law enforcement, could lead to a petty misdemeanor charge.
Legal Defenses That Might Work Against Your Nicotine Sale Charge
A citation for selling nicotine products to someone under 21 can feel like an open-and-shut case, but it rarely is. You have powerful legal defenses available, including one written directly into the law. As your defense attorney, my first step is to scrutinize every detail of the compliance check. Was it conducted fairly? Was the evidence handled properly? Did the officer follow protocol?
Our primary focus, however, will be on building a strong affirmative defense. The law specifically protects retailers and their employees who act in good faith. My job is to gather the evidence needed to show the judge or prosecutor that you did everything a reasonable person would do to prevent an illegal sale. How to fight charges for selling nicotine products in Minnesota requires a proactive defense that challenges the state’s narrative and highlights your responsible business practices.
The Affirmative Defense: Good-Faith Reliance on an ID
This is the most powerful defense available under the statute. You can be found not guilty if you can prove that it is “more likely than not” that you or your employee reasonably and in good faith relied on a proof of age.
- The ID Looked Real: We will present the ID in question (if seized) or testimony about its appearance to argue that it was a convincing fake that would fool a reasonable and prudent clerk. In an age of sophisticated forgeries, it is unfair to expect employees to be forensic document examiners.
- You Followed Store Policy: Demonstrating that the employee followed your store’s age-verification policies is key to proving good faith. We can present evidence of employee training, “We Card” program participation, and a consistent practice of checking IDs to show that this was not a case of recklessness, but of being deceived by a convincing fake.
The Product Is Not Covered by This Statute
This statute is a catch-all, but it’s specific. It only applies to nicotine or lobelia products that are not traditional tobacco or e-cigarettes (which are covered by § 609.685).
- Incorrect Classification: We will challenge the state to prove the product sold fits the narrow definition of this statute. If the item was actually a vape product, for example, you have been charged under the wrong law, which can be grounds for dismissal.
- FDA-Approved Exception: The law explicitly exempts nicotine products that are authorized for sale by the FDA as drugs, devices, or combination products (e.g., nicotine gum or patches sold as smoking cessation aids). If the product sold falls into this category, you have committed no crime.
Flaws in the Compliance Check Procedure
We will hold law enforcement accountable for following their own rules. Any significant procedural error can render the sting operation invalid.
- Improper Decoy Conduct: Underage decoys are supposed to be passive participants. If the decoy was overly aggressive, used a fake ID that was obviously fraudulent, or lied about their age when asked, we can argue their conduct was improper and constitutes entrapment.
- Chain of Custody Errors: The state must maintain a clear chain of custody for the product that was purchased and the ID that was used. Any failure to properly document and preserve this evidence can make it inadmissible in court, crippling the prosecutor’s case.
The State Cannot Prove Its Case
The burden of proof is always on the prosecution. We will challenge them on every element, forcing them to prove their case beyond a reasonable doubt.
- Lack of Clear Evidence: If the surveillance video is blurry, the officer’s report is vague, or the decoy’s memory of the event is shaky, we can argue that the evidence is simply too weak to support a conviction.
- Identity of the Seller in Question: In a busy store with multiple employees, the state must definitively prove which clerk made the alleged sale. If there is any confusion about the identity of the seller, it creates reasonable doubt that can lead to an acquittal.
Minnesota Nicotine Sale FAQs — What You Need to Know Now
Will I go to jail for this charge?
For a first offense, you will not go to jail. It is a petty misdemeanor, which is only punishable by a fine. However, a second violation within five years is a misdemeanor, and while jail time is still unlikely, it becomes legally possible for a judge to impose a sentence of up to 90 days.
Can this charge be dismissed?
Yes. Dismissal is the best possible outcome and our primary objective. A skilled attorney can often secure a dismissal by proving the affirmative defense, identifying fatal flaws in the prosecution’s case, or negotiating a “continuance for dismissal” with the prosecutor.
Do I need a lawyer for a petty misdemeanor in Rochester?
Hiring a lawyer is the most effective way to protect your record and your business interests. A lawyer familiar with the Olmsted County courts can appear on your behalf, challenge the evidence from the compliance check, and work to secure a resolution that avoids a conviction and minimizes the administrative penalties against your business license.
How long does a conviction for this stay on my record?
A conviction for this offense, whether a petty misdemeanor or a misdemeanor, is permanent. It will appear on your public record indefinitely unless you are able to get it expunged at a later date. The best course of action is to prevent the conviction from ever happening.
What is the difference between this law (§ 609.6855) and the main tobacco law (§ 609.685)?
This law, § 609.6855, is a specific statute designed to cover nicotine products that are not traditional tobacco (cigarettes, cigars, chew) and not electronic delivery devices (vapes). It was created to regulate products like nicotine pouches, lozenges, and gels. The penalties and defenses are virtually identical.
My employee made the mistake. Why is my business being penalized?
State and local laws hold the license holder (the business) accountable for the actions of its employees. The theory is that the business is responsible for training and supervising its staff to ensure compliance. Therefore, even if an employee makes a mistake, the business faces separate administrative penalties like fines and license suspension.
What is an “affirmative defense”?
An affirmative defense is one where you, the defendant, have the burden of proving your defense. For this charge, you must prove by a “preponderance of the evidence” (meaning it is more likely than not) that you or your employee checked an ID and relied on it in good faith. If you prove this, you must be found not guilty.
Are compliance checks legal entrapment?
Generally, no. Entrapment occurs when law enforcement induces a person to commit a crime they otherwise would not have committed. Compliance checks are seen by the courts as merely providing an opportunity for a retailer to either follow the law or break it. However, if the decoy’s conduct is overly aggressive or deceptive, it could cross the line into entrapment.
How many violations until my license is suspended?
Typically, under state law and most local ordinances, your license to sell nicotine and tobacco products can be suspended for at least seven days upon a third violation at the same location within a 36-month period.
What should I do after receiving a citation?
First, do not speak to the citing officer or any investigators. Politely decline to answer questions. Second, preserve all relevant evidence, especially any surveillance video of the transaction. Third, contact an experienced Minnesota criminal defense attorney immediately to discuss your rights and defense options.
What if the ID the decoy used was real, but didn’t belong to them?
This can be a strong point for your defense. If the decoy used a real, valid ID of someone over 21 and the photo was a reasonable match, we can argue that the clerk’s reliance on it was in good faith. It is not reasonable to expect clerks to detect that a person is using a borrowed ID if the photo is similar.
Does this law apply to online sales?
Yes. The law applies to anyone who “sells, gives, or otherwise furnishes” these products. Online retailers are still responsible for verifying the age of the purchaser, often through third-party age verification services, before shipping products to Minnesota.
What is a “continuance for dismissal” (CFD)?
A CFD is a fantastic outcome where the court puts your case on hold for a period (often a year). If you remain law-abiding during that time, the charge is dismissed entirely and no conviction is entered on your record. This is often the ideal resolution we seek in petty misdemeanor cases.
Can I just pay the fine?
Paying the fine is an admission of guilt. It is the same as pleading guilty in court, and a conviction will be entered on your record. Before you pay any fine, you should consult with an attorney to understand the long-term consequences and to see if a better outcome is possible.
My English isn’t very good. Can that be a defense?
While a language barrier is not a direct legal defense, it can be a factor in arguing that a mistake was made in good faith. It could help explain why an employee was confused or misunderstood a customer, which could support our argument that they were not acting recklessly but made an understandable error.
What a Conviction Could Mean for the Rest of Your Life
For a retailer or an employee, a conviction under § 609.6855 is far more than just a fine. It is a black mark that can have a lasting negative impact on your professional life.
Jeopardizing Your Business’s License
The most direct and dangerous consequence is to your business’s license to sell nicotine and tobacco products. These products are often high-margin items that are critical to a convenience store’s profitability. A series of violations can lead to suspension or even revocation of that license, which could be financially catastrophic. A criminal conviction on your business’s record can also harm its reputation in the community.
Creating a Criminal Record for Employees
For the clerk or employee who made the sale, a conviction creates a permanent public record. This can be a major hurdle when applying for future jobs, seeking educational opportunities, or even applying for housing. A misdemeanor conviction for a subsequent offense is even more serious, as it is a formal crime that must be disclosed on many applications.
Rising Insurance Costs
Your business liability insurance premiums are based on risk. A record of convictions for selling to underage persons flags your business as a higher risk. Your insurer may respond by significantly increasing your premiums or, in the case of multiple violations, may even choose not to renew your policy, making it difficult and more expensive to obtain coverage elsewhere.
Potential Immigration Issues
For non-citizen business owners or employees, any criminal conviction, even a petty misdemeanor, can cause problems with the immigration system. It can complicate applications for visa renewals, green cards, or naturalization. A pattern of convictions or a more serious misdemeanor could be viewed as a failure to demonstrate the “good moral character” required for many immigration benefits.
Why You Need a Tough, Experienced Minnesota Nicotine Sale Attorney
When your business and your reputation are on the line, you cannot afford to go it alone. The state has attorneys and investigators dedicated to enforcing these laws. You need a dedicated advocate in your corner who will fight just as hard to protect you.
The Advantage of a Dedicated Private Lawyer
As a private defense attorney, I have the time, focus, and resources to devote to your case. Unlike public defenders who are often overwhelmed with felony caseloads, I can dedicate my full attention to challenging your citation. I will personally handle your case from our first conversation until its conclusion. You will have a direct line to me, and I will be the one standing by your side.
The Power of Proactive Defense
The best time to challenge a citation is immediately after it is issued. By retaining me quickly, we can take control of the narrative. I can contact the city or county attorney to present our side of the story, highlight the weaknesses in their case, and begin negotiating for a favorable resolution. We can also preserve critical evidence, like surveillance video, before it is erased. A proactive defense is a powerful defense.
Deep Knowledge of Local Courts and Ordinances
I have defended clients in courts throughout Minnesota, from the Twin Cities metro area of Minneapolis and St. Paul to the surrounding suburbs like Edina and Woodbury, and in cities across the state. I know that the local ordinances in one city can be tougher than in another. I know the local prosecutors and their policies. This statewide experience allows me to craft a defense strategy that is tailored to the specific court and prosecutor you are facing.
A Commitment to Protecting Your Record and Your Business
My mission is twofold: first, to protect the individual employee from a criminal conviction, and second, to protect the business from costly administrative penalties and license suspension. I will fight aggressively for a dismissal or a Continuance for Dismissal (CFD) for the employee. For the business, I will negotiate with the licensing authority to minimize fines and prevent any interruption to your operations. Don’t let a compliance check derail your future. Let me fight for you.