HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 06/15/2021 - FIRST READING OF ORDINANCE NO. 082, 2021, AMENDING Agenda Item 7
Item # 7 Page 1
AGENDA ITEM SUMMARY June 15, 2021
City Council
STAFF
Ginny Sawyer, Policy and Project Manager
Adam Stephens, Legal
SUBJECT
First Reading of Ordinance No. 082, 2021, Amending Chapter 12 of the Code of the City of Fort Collins
Regarding Smoking Materials.
EXECUTIVE SUMMARY
The purpose of this item is to amend Chapter 12 of the City Code to reflect adopted State of Colorado House
Bill (HB) actions which equate “vaping” with “smoking” and change age restrictions on selling smokable
products from 18 years old to 21. It would also add a local definition of “smoking material” to clearly define
what products cannot be sold to persons under 21 years of age for purposes of smoking or vaping.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
The State of Colorado amended the Clean Indoor Air Act in both 2019 and 2020. In 2019, HB -1076 made the
Act applicable to electronic smoking devices, more commonly referred to as “vaping,” and expanded the areas
where smoking could be prohibited. In 2020, HB-2001 prohibited the sale of tobacco, tobacco products or
nicotine products to all persons under twenty-one years of age. This state law changes also required specific
signage requirements, such as increased size and specific language, that are incorporated in this ordinance
amendment proposal.
This Ordinance intends to incorporate these statutory changes relative to smoking and vaping into City Code
for consistency in enforcement and public expectation. It also exercises home rule authority in a manner more
restrictive than the state’s minimum requirements particularly as these regulations pertain to the sale and
delivery of tobacco, hemp and vaping materials to underage persons less than twenty-one years of age by
including the addition of “and other smoking materials.”
Fort Collins Police Services has identified numerous commercial businesses that are marketing, packaging or
selling hemp and other plant-like material, alone or combined with unregulated chemical compounds such as
kratom and Delta-8 cannabinoids, for sale to persons less than twenty -one years of age for purposes of
smoking or vaping.
Codifying language addressing the sale of smoking materials to anyone under twenty -one will help proactively
protect minors and address the continually changing array of unregulated products sold for the intent of
smoking. Consistent with penalty provisions in current Code, the sale of smoking material to underage persons
remains a misdemeanor under City Code Section 1-15.
Agenda Item 7
Item # 7 Page 2
CITY FINANCIAL IMPACTS
These Code amendments are not anticipated to have a financial impact to the City. Enforcement of vaping as
a smoking activity in public space will be addressed by Code Enforcement in a consistent mann er to current
efforts. The sale of smokable materials to minors enforcement will fall to Police Services.
PUBLIC OUTREACH
A Colorado Open Records request has been submitted to obtain contact information for those with local
convenience store businesses licenses. Once obtained, staff is planning written outreach efforts to notify
owner/operators of the prohibition on selling tobacco, nicotine, and any other smokable materials to anyone
under twenty-one years of age.
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ORDINANCE NO. 082, 2021
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 12 OF THE CODE OF THE CITY OF FORT COLLINS
REGARDING SMOKING MATERIALS
WHEREAS, Chapter 12, Article III of the City Code regulates smoking in public areas,
including on City property, in the Downtown Smoke-Free Zone, and places of employment; and
WHEREAS, Chapter 12, Article V of the City Code regulates the sale and use of tobacco
products by minors, currently defined as persons under eighteen years of age; and
WHEREAS, in 2019 the State of Colorado amended its Clean Indoor Air Act, C.R.S.
Sections 25-14-202, et seq. in House Bill 19-1076 to make the Act applicable to electronic
smoking devices, more commonly referred to as “vaping,” and to expand the area where
smoking could be prohibited; and
WHEREAS, in 2020 the State of Colorado amended its regulations prohibiting the sale of
tobacco, tobacco products or nicotine products to all persons under twenty-one years of age in
House Bill 20-1001 and codified in C.R.S. Section 25-14-301; and
WHEREAS, the City Council wishes to incorporate the state statutory changes relative to
smoking and vaping into the City Code for consistency in enforcement and public expectation
and will continue to regulate in these areas under its home rule authority in a manner more
restrictive than the state’s minimum requirements, particularly as these regulations pertain to the
sale and delivery of tobacco, vaping and other smoking materials to underage persons less than
twenty-one years of age; and
WHEREAS, Colorado law permits home rule municipalities to impose concurrent
regulations regarding smoking and sale of smoking materials that may be more, but not less,
restrictive than state statute depending on local circumstances; and
WHEREAS, the City staff has observed numerous commercial businesses that are
marketing, packaging or selling hemp and other plant-like material, alone or combined with
unregulated chemical compounds such as kratom and Delta-8 cannabinoids, for sale to underage
persons less than twenty-one years of age to be smoked; and
WHEREAS, the City Council wishes to prohibit the sale of plant products or materials, or
any liquid, vapor or aerosol, that is packaged, marketed, sold or intended for smoking or vaping
to persons under twenty-one years of age; and
WHEREAS, the City Council has determined that the proposed amendments are in the
best interests of the City and are necessary for the health, safety and welfare of the City’s
citizens.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
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Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That Section 12-56 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 12-56. Definitions.
The following words, terms and phrases, when used in this Article, shall have the meanings
ascribed to them in this Section:
. . .
Electronic smoking device or ESD shall mean an electric or battery-operated device, the use of
which resembles conventional smoking, which can be used to deliver substances, including, but
not limited to, nicotine, tobacco or marijuana, to the person using such device. Electronic
smoking device shall include, without limitation, an electronic cigarette, cigar, cigarillo, pipe or
hookah. Electronic smoking device shall not include any product approved by the Food and Drug
Administration as a drug or medical device that is used in accordance with its purpose.any
product that contains or delivers nicotine or any other substance intended for human
consumption and that can be used by a person to enable the inhalation of vapor or aerosol from
the product and is commonly described as vaping. This includes any product whether
manufactured, distributed, marketed or sold as an e-cigarette, e-cigar, e-pipe, e-hookah, or vape
pen or under any other product name or descriptor. An ESD does not include a humidifier or
similar device that emits only water vapor, or an inhaler, nebulizer, or vaporizer that is approved
by the federal food and drug administration for the delivery of medication.
Employee shall mean any person who is employed by any employer in consideration for direct or
indirect monetary wages or profit, and any person who volunteers his or hertheir services without
wages or other compensation.
. . .
Establishment shall mean the buildings or facilities in which a business, enterprise or
undertaking, whether or not for profit, is conducted. InIf the event that a single business or
undertaking is conducted in two (2) or more adjacent buildings, those buildings together shall
comprise the establishment for the purpose of this Article.
. . .
Retail tobacco business shall mean an establishment utilized primarily for the retail sale of
tobacco, electronic smoking devices, and smoking products and accessories, for off-site use and
consumption, and in which the sale of other products and nonsales activities are merely
incidental. The term retail tobacco business shall not include any establishment that is in the
business of selling retail or medical marijuana. In order fFor an establishment to be considered a
retail tobacco business for purposes of this definition:
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(1) The revenues of the business must be generated primarily from the on-site sale of
tobacco products, and from the sale of tobacco consumption accessories.tobacco,
electronic smoking devices, and smoking products and accessories. The sale of incidental
goods other than tobacco, electronic smoking devices, or smoking products and
accessories products or tobacco consumption accessories may generate limited revenues
of no more than eight (8) percent of the total on-site revenues of the retail tobacco
business.
. . .
Smoke or smoking shall mean inhaling, exhaling, burning, or carrying any lighted or heated cigar,
cigarette, or pipe or any other lighted or heated tobacco, marijuana, hemp, cloves, smoking
material or other plant product packaged, marketed, sold or intended for inhalation, whether
natural or synthetic, in any manner or in any form. Smoke or smoking also includes the use of an
ESD and the act of vaping.
(1) Carrying or placing of an electronic smoking device, lighted cigarette, lighted
cigar, lighted pipe, or any other lighted smoking equipment in one's mouth for the
purpose of inhaling or exhaling smoke or vapor or blowing smoke rings;
(2) Placing of an electronic smoking device, lighted cigarette, lighted cigar, lighted
pipe, or any other lighted smoking equipment in an ashtray or other receptacle, and
allowing smoke or vapor to diffuse in the air;
(3) Carrying or placing of an electronic smoking device or lighted cigarette or lighted
cigar or lighted pipe or any other lighted smoking equipment in one's hands or any
appendage or device and allowing smoke or vapor to diffuse in the air; or
(4) Inhaling or exhaling smoke or vapor from an electronic smoking device, lighted
cigarette, lighted cigar, lighted pipe, or any other lighted smoking equipment.
. . .
Smoking material shall mean any natural or synthetic plant-based matter, material or product, or
any liquid, vapor or aerosol, that is packaged, marketed, sold or intended for smoking or vaping.
Smoking material includes, but is not limited to:
(1) Tobacco, cloves, marijuana or hemp; or
(2) Liquids, vapors or aerosols intended to be consumed with an electronic smoking
device or by a device requiring the use of flame or heat; or
(3) Any product or material packaged, marketed, sold, or intended to smoke or vape
kratom, Delta-8 cannabinoids, or synthetic marijuana. There shall be a rebuttable
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resumption that any such product or material packaged, marketed, intended or held out
for sale without any instruction as to how to be consumed is intended to be smoked.
. . .
Tobacco shall mean cigarettes, cigars, cheroots, stogies and periques; granulated, plug cut, crimp
cut, ready rubbed and other smoking tobacco; snuff and snuff flour, cavendish, plug and twist
tobacco; fine-cut and other chewing tobacco; shorts, refuse scraps, clippings, cuttings, and
seepings of tobacco; and other kinds and forms of tobacco, prepared in such manner as to be
suitable for both chewing or for smoking in a cigarette, pipe, electronic smoking device or
otherwise, or both for chewing and smoking. Tobacco also includes cloves, marijuana, and any
other plant matter or product that is packaged for smoking.
Section 3. That Section 12-57 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 12-57. Findings; purposes.
(a) The City Council has found and determined as follows:
(1) It is in the best interest of the people who live, work and play in the City to
protect the public from involuntary exposure to emissions from secondhand smoke and
electronic smoking devices (ESD) in the Downtown Smoke-Free Zone, on City-owned
property and in most indoor areas open to the public, in public meetings, in food service
establishments, and in places of employment; and
(12) Numerous studies have found that tobacco smoke is a major contributor to indoor
air pollution, and that breathing secondhand smoke is a cause of disease, including lung
cancer, in non smokers. At special risk are children, elderly people, individuals with
cardiovascular disease and individuals with impaired respiratory function, including
asthmatics and those with obstructive airway disease; and
(2)a. Secondhand smoke has been classified as a Class A carcinogen like
asbestos by the Environmental Protection Agency; and
(3)b. Secondhand smoke contains almost five thousand (5,000) chemicals, sixty
(60) which are known toxins and carcinogens, including arsenic, formaldehyde,
hydrogen cyanide and radioactive elements; and
(4)c. There is no safe level of exposure to secondhand smoke; and
(5)d. Health hazards induced by breathing secondhand smoke include lung
cancer, heart disease, respiratory infection and decreased respiratory function,
including bronchoconstriction and bronchospasm.; and
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(3) ESD emissions consist of ultrafine particles that are significantly more highly
concentrated than particles within conventional tobacco smoke. There is conclusive
evidence that most ESDs contain and emit not only nicotine but also many other
potentially toxic substances and that ESDs increase airborne concentrations of particulate
matter and nicotine in indoor environments. In addition, studies show that people exposed
to ESD emissions absorb nicotine at levels comparable to the levels experienced by
passive smokers. Many of the elements identified in ESD emissions are known to cause
respiratory distress and disease, and ESD exposure damages lung tissues. For example,
human lung cells that are exposed to ESD aerosol and flavorings show increased
oxidative stress and inflammatory responses.
. . .
Section 4. That Section 12-62 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 12-62. Where smoking is not prohibited.
Notwithstanding any other provision of this Article to the contrary, retail tobacco businesses
shall be exempt from the smoking prohibition set forth in § 12-59 above, provided that the
following conditions shall apply:
. . .
(4) Persons under eighteen (18) twenty-one (21) years of age shall not be permitted
on the premises of the business, and proof of age shall be required for all persons entering
the business. The retail tobacco business shall be responsible for providing adequate
staffing and training so as to ensure an effective system for preventing persons under
eighteen (18) twenty-one (21) years of age from entering the business.
(5) In addition to other signs required to be posted pursuant to this Article, any retail
tobacco business shall post and maintain a sign at all public entrances thereto, in a
conspicuous position clearly visible upon entry, stating the phrase "Persons under the age
of 18 21not permitted". In addition, the sign, or another similarly posted sign, shall state
the phrase "Surgeon General's Warning: Smoking Can Cause Lung Cancer, Heart
Disease, Emphysema, and May Complicate Pregnancy". Any sign required hereunder
shall meet the size and location requirements of Subsection 12-63(b).
Section 5. That Section 12-63(a)(3) and (b) of the Code of the City of Fort Collins
are hereby amended to read as follows:
Sec. 12-63. Posting of signs.
(a) The owner, operator, manager and other persons in control of an establishment shall be
responsible for posting and maintaining the following signs in said establishment, as applicable:
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. . .
(3) In an establishment in which smoking is allowed throughout pursuant to this
Article, a sign using the words " Smoking Permitted " and/or the international smoking
symbol shall be posted conspicuously at all public entrances and in a position clearly
visible upon entry into the establishment stating either:
a. “Smoking Permitted. Persons under twenty-one years of age may not
enter.”; or
b. In the case of a retail tobacco business that desires to allow the use of
ESDs but not other forms of smoking on the premises, “Vaping Permitted.
Persons under twenty-one years of age may not enter.”
(b) All signs referred to in this Section shall be a minimum size of twenty (20) twenty-four
(24) square inches and shall be placed at a height of between four (4) and six (6) feet above the
floor.
. . .
Section 6. That Section 12-64 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 12-64. - Enforcement.
(a) Enforcement of this Article shall be implemented by the City Manager or his or hertheir
designee.
. . .
(c) Any citizen may register a complaint of alleged violation of this Article by filing a sworn
complaint with the City Manager or his or hertheir designee.
. . .
(e) The City Manager may make such rules and regulations as he or shethey deems necessary
and beneficial for the interpretation and enforcement of the terms of this Article. Any such rules
and regulations shall become effective upon the filing of the same with the office of the City
Clerk and the publication in a newspaper of general circulation published in the City of a notice
stating the general subject matter and the availability of the same in the office of the City Clerk.
Section 7. That Chapter 12, Article V of the Code of the City of Fort Collins is
hereby amended to read as follows:
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ARTICLE V.
SALE AND USE OF TOBACCO, TOBACCO PRODUCTS
AND ELECTRONIC SMOKING DEVICES
Sec. 12-96. Definitions.
The following words, terms and phrases, when used in this Article, shall have the meanings
ascribed to them in this Section:
Electronic smoking device or ESD shall mean any product that contains or delivers nicotine or
any other substance intended for human consumption and that can be used by a person to enable
the inhalation of vapor or aerosol from the product and is commonly described as vaping. This
includes any product whether manufactured, distributed, marketed or sold as an e-cigarette, e-
cigar, e-pipe, e-hookah, or vape pen or under any other product name or descriptor. An ESD does
not include a humidifier or similar device that emits only water vapor, or an inhaler, nebulizer, or
vaporizer that is approved by the federal food and drug administration for the delivery of
medication.
Minor shall mean any natural person who is under eighteen (18) years of age.
. . .
Retail tobacco business shall mean an establishment utilized primarily for the retail sale of
tobacco, tobacco products, electronic smoking devices, and smoking products and accessories,
for off-site use and consumption, and in which the sale of other products and nonsales activities
are merely incidental. The term retail tobacco business shall not include any establishment that
is in the business of selling retail or medical marijuana. For an establishment to be considered a
retail tobacco business for purposes of this definition:
(1) The revenues of the business must be generated primarily from the on-site sale of
tobacco, electronic smoking devices, and smoking products and accessories. The sale of
incidental goods other than tobacco, electronic smoking devices, and smoking products
and accessories may generate limited revenues of no more than eight (8) percent of the
total on-site revenues of the retail tobacco business.
(2) The business shall not operate under another license associated with sale or
consumption of liquor, food or marijuana.
(3) The business shall not exceed two thousand five hundred (2,500) square feet of
gross floor area in size, and no more than twenty (20) percent of the business may be
utilized as a seating area, lounge or other area intended to accommodate smoking for the
purpose of sampling tobacco, electronic smoking devices, and smoking products and
accessories tobacco products that are offered for sale.
(4) An establishment in operation as of July 1, 2006, that as of that date was an
establishment utilized primarily for the retail sale or promotion of tobacco, electronic
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smoking devices, and smoking products and accessories, and that met the requirements in
Paragraphs (1) and (2) above, shall be deemed to constitute a retail tobacco business for
so long as the establishment:
a. Continues to meet the requirements in Paragraphs (1) and (2) above; and
b. Does not expand the size of the area in which smoking is allowed from the
size of said area as it existed on July 1, 2006; and
c. At all times after December 31, 2006, operates in compliance with the
requirements of Paragraph 12-62(a)(2) of this Article.
Smoke or Ssmoking shall mean the holding or carrying of a lighted pipe, lighted cigar or lighted
cigarette of any kind and includes the lighting of a pipe, cigar or cigarette of any kind. inhaling,
exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe or any other lighted
or heated tobacco, cloves, hemp, smoking material or other plant product packaged, marketed,
sold or intended for inhalation, whether natural or synthetic, in any manner or in any form.
Smoke or smoking also includes the use of an ESD and the act of vaping.
Smoking material shall mean any natural or synthetic plant-based matter, material or product, or
any liquid, vapor or aerosol, that is packaged, marketed, sold or intended for smoking or vaping.
Smoking material includes, but is not limited to:
(1) Tobacco, cloves or hemp; or
(2) Liquids, vapors or aerosols intended to be consumed with an electronic smoking
device or by a device requiring the use of flame or heat; or
(3) Any product or material packaged, marketed, sold, or intended to smoke or vape
kratom, Delta-8 cannabinoids, or synthetic marijuana. There shall be a rebuttable
presumption that any such product or material packaged, marketed, intended or held out
for sale without any instruction as to how to be consumed is intended to be smoked.
Tobacco shall mean cigarettes, cigars, cheroots, stogies and periques; granulated, plug cut, crimp
cut, ready rubbed and other smoking tobacco; snuff and snuff flour, cavendish, plug and twist
tobacco; fine-cut and other chewing tobacco; shorts, refuse scraps, clippings, cuttings, and
seepings of tobacco; and other kinds and forms of tobacco, prepared in such manner as to be
suitable for both chewing or for smoking in a cigarette, pipe, electronic smoking device or
otherwise, or both for chewing and smoking.
. . .
Underage person shall mean any natural person under twenty-one (21) years of age.
. . .
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Sec. 12-97. Sale of tobacco, smoking material, tobacco products or electronic smoking
devices.
(a) No person shall sell, offer for sale, distribute, dispense or give away tobacco, smoking
material, tobacco products or electronic smoking devices in a public place by or from a vending
machine.
(b) No person shall permit a vending machine that dispenses tobacco, smoking material,
tobacco products or electronic smoking devices to be located, installed, kept or maintained in any
public place owned or leased by such person.
(c) Notwithstanding the provisions of Subsections (a) and (b) of this Section, tobacco,
smoking material, tobacco products or electronic smoking devices may be sold through a
vending machine located in a public place where access by minors underage persons is
prohibited.
(d) No person shall furnish to an minor underage person, by gift, sale or any other means,
any tobacco, smoking material, tobacco products or electronic smoking devices. Before giving,
selling, distributing, dispensing, or offering to sell to an individual any cigarette, smoking
material, tobacco product, or nicotine product, a person shall request from the individual and
examine a government-issued photographic identification that establishes that the individual is
twenty-one years of age or older. It shall be an affirmative defense to prosecution under this
Subsection, however, that the person furnishing the tobacco, smoking material, tobacco products
or electronic smoking devices to the minorunderage person was presented with and reasonably
relied upon a document which identified the minor underage person receiving the product as
being eighteen (18) twenty-one (21) years of age or older.
(e) Every person in charge or control of a retail business of any kind shall stock and display
all tobacco, smoking material, tobacco products or electronic smoking devices in such business
in a manner so as to make all such tobacco, smoking material, tobacco products or electronic
smoking devices reasonably inaccessible to customers, thereby requiring a direct, face-to-face
exchange of the tobacco, smoking material, tobacco products or electronic smoking devices from
an employee of the business to the customer. The foregoing sentence shall not go into effect until
September 1, 1997. The provisions of this Subsection shall not apply to vending machines and to
self-service displays of tobacco, smoking material, tobacco products or electronic smoking
devices that are located in a public place where access by minors underage persons is prohibited.
(f) Any person who sells or offers for sale at retail any tobacco, smoking material, tobacco
products or electronic smoking devices, including by means of a vending machine, shall display
a warning sign as specified in this Subsection. If the tobacco, smoking material, tobacco
products or electronic smoking devices isare sold or offered for sale by use of a vending
machine, said warning sign shall be displayed visibly and prominently on the front of the
vending machine at all times. If the tobacco, smoking material, tobacco products or electronic
smoking devices isare sold or being offered for sale in any other manner, said warning sign shall
be displayed in the premises at all times in a visible and prominent place within close proximity
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to the point of sale of the tobacco, smoking material, tobacco product or electronic smoking
device. Such warning sign, whether displayed on a vending machine or otherwise, shall have a
minimum height of five (5) inches and a minimum width of seven (7) inches, and in large, bold
type shall read as follows:
WARNING
IT IS ILLEGAL FOR ANY PERSON UNDER 1821 YEARS OF AGE TO PURCHASE,
POSSESS OR USE TOBACCO, SMOKING MATERIAL, TOBACCO PRODUCTS AND
ELECTRONIC SMOKING DEVICES AND, UPON CONVICTION, A FINE MAY BE
IMPOSED.
IT IS ILLEGAL FOR ANY PERSON TO SELL OR GIVE TOBACCO, SMOKING
MATERIAL, TOBACCO PRODUCTS AND ELECTRONIC SMOKING DEVICES TO A
PERSON UNDER 1821 YEARS OF AGE AND, UPON CONVICTION, A FINE AND
IMPRISONMENT MAY BE IMPOSED.
Sec. 12-98. MinorsUnderage persons prohibited from purchasing, possessing or using
tobacco, tobacco products or electronic smoking devices.
(a) No minorunderage person shall purchase, possess, consume or use any tobacco, smoking
material, tobacco products or electronic smoking devices. For purposes of this Subsection, to
possess tobacco, smoking material, tobacco product or electronic smoking device shall mean that
the minorunderage person has or holds any amount of tobacco, smoking material, tobacco
product or electronic smoking device anywhere on his or hertheir person, or owns or has custody
of tobacco, smoking material, a tobacco products or electronic smoking devices or has tobacco,
smoking material, a tobacco product or an electronic smoking device within his or hertheir
immediate presence and control. To consume or use tobacco, smoking material, a tobacco
products or electronic smoking devices shall mean, for purposes of this Subsection, to smoke,
ingest, absorb, inhale, use or chew any tobacco, smoking material, tobacco products or electronic
smoking devices.
(b) No minorunderage person shall obtain or attempt to obtain any tobacco, smoking
material, tobacco products or electronic smoking devices by misrepresentation of age or by any
other method.
(c) Any person who violates any part of this §12-98 is guilty of a petty offense punishable by
a fine in accordance with §1-15(h).
Sec. 12-99. Violations, penalties, presumptions and accountability.
(a) Each day that a person violates any section of this Article shall be considered as a
separate and distinct violation.
(b) Any person who violates any section of this Article shall, upon conviction, be subject to
the penalties in § 1-15 of this Code; provided, however, that a fine of at least one hundred dollars
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($100.) shall be imposed for any violation of Subsection 12-97(d). In addition, the Municipal
Court JudgeChief Municipal Judge may require any minorunderage person convicted of a
violation under § 12-98 to complete up to twenty-four (24) hours of court-approved public
service and at such cost to the minor underage person as may be established by resolution of the
City Council.
(c) Proof that a package or container has affixed to it a label which identifies the package or
container as containing tobacco, smoking material, a tobacco products or electronic smoking
devices shall raise the evidentiary presumption and constitute prima facie evidence in any
prosecution of a violation under any section of this Article of the fact that the substance within
such package or container at the time of the violation was tobacco, smoking material, a tobacco
product or electronic smoking device. Such presumption, however, may be rebutted by the
presentation at trial of any probative and competent evidence that the substance within the
package or container was not tobacco, smoking material, a tobacco product or electronic
smoking device.
(d) Proof that Subsection 12-97(d) has been violated three (3) times or more within a one-
year period by one (1) or more employees at a particular location of a retail business that sells or
offers for sale tobacco, smoking material, tobacco products or electronic smoking devices shall
raise the evidentiary presumption and constitute prima facie evidence in any prosecution of the
owner or manager of such business under Subsection 12-97(d), that such owner or manager, with
intent to promote or facilitate the violation, aided, abetted or advised the employee in planning or
committing the third and subsequent violations of Subsection 12-97(d) within such one-year
period or, in the case where the owner of the business is a corporation, that the conduct
constituting the third and subsequent violations was engaged in, authorized, solicited, requested,
commanded or knowingly tolerated by the corporate owner's board of directors or by a high
managerial agent acting within the scope of his or hertheir employment on behalf of the
corporate owner. For purposes of this Section, high managerial agent shall mean an officer of
the corporate owner or any other employee of the corporate owner in a position of comparable
authority with respect to the formulation of corporate policy or the supervision in a managerial
capacity of subordinate employees. These presumptions shall not arise with respect to an owner
who did not own or a manager who did not manage such business for any period of time within
the one-year period during which the three (3) or more violations of Subsection 12-97(d)
occurred. Further, these presumptions may be rebutted at trial by the presentation of any
probative and competent evidence.
Introduced, considered favorably on first reading, and ordered published this 15th day of
June, A.D. 2021, and to be presented for final passage on the 6th day of July, A.D. 2021.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
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Passed and adopted on final reading on this 6th day of July, A.D. 2021.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk