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HomeMy WebLinkAbout007 - 02/18/1997 - AMENDING CITY CODE PERTAINING TO SALE OF TOBACCO PRODUCTS AND USE BY MINORS ORDINANCE NO. 7, 1997 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING AND ADDING SECTIONS TO ARTICLE V OF CHAPTER 12 OF THE CODE OF THE CITY OF FORT COLLINS PERTAINING TO THE SALE OF TOBACCO PRODUCTS AND THE USE OF TOBACCO PRODUCTS BY MINORS WHEREAS, there exists substantial scientific evidence that the use of tobacco products causes cancer, heart disease and other medical disorders; and WHEREAS, tobacco use is the largest preventable cause of illness and premature death in the United States and is associated with the unnecessary deaths of over 390,000 Americans annually; and WHEREAS, tobacco has been found by the United States Surgeon General to be a powerfully addictive drug, and it is therefore important to prevent young people from having access to and using nicotine until they are mature and capable of making an informed and rational decision; and WHEREAS, everyday more than 3,000 minors begin smoking; and WHEREAS, Colorado law currently prohibits adults from furnishing tobacco products to minors by sale or otherwise; and WHEREAS,Colorado law also currently prohibits minors from purchasing tobacco products; and WHEREAS, Colorado law does not currently prohibit possession and use of tobacco products by minors; and WHEREAS, C.R.S. §25-14-105 authorizes municipalities to adopt ordinances regulating smoking; and WHEREAS, C.R.S. §18-13-121(3) authorizes municipalities to impose requirements regarding the furnishing of tobacco products to minors and regarding the purchase of tobacco products by minors, which are more stringent than those provided by state law; and WHEREAS,the Council of the City of Fort Collins hereby finds that this Ordinance pertains to and is in furtherance of the health, safety and welfare of the residents of the City of Fort Collins, particularly those residents under eighteen years of age. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS,that Article V of Chapter 12 of the Code of the City of Fort Collins is hereby amended to read as follows: Section 1. That Section 12-96 is hereby amended to read as follows: ARTICLE V. SALE AND USE OF TOBACCO PRODUCTS 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: Minor shall mean any natural person who is under eighteen (18) years of age. Public place shall mean any area or premises open to the public, including, but not limited to,restaurants,retail stores,laundromats,theaters,banks,public conveyances, educational facilities, recreational facilities, hospitals, nursing homes, auditoriums, arenas, malls, meeting rooms, bars, taverns. hotels, motels, grocery stores, convenience stores, gas stations, department stores and office buildings. Smoking 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. Tobacco products shall mean any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, smokeless tobacco and dipping tobacco. Vending machine shall mean any mechanical, electrical or electronic self-service device which, upon insertion of money, tokens or any other form of payment, dispenses products. Section 2. That Section 12-97 of the Code of the City of Fort Collins shall be amended by amending paragraphs(a)and(b)and by the addition of paragraphs(e)and(f),which amendments and additions shall read as follows: 2 Sec. 12-97. Sale of tobacco products. (a) No person shall sell, offer for sale, distribute, dispense or give away tobacco products in a public place by or from a vending machine. (b) No person shall permit a vending machine that dispenses tobacco products to be located, installed, kept or maintained in any public place owned or leased by such person. (c) Notwithstanding the provisions of paragraphs (a) and (b) of this Section, tobacco products may be sold through a vending machine located in a public place where access by minors is prohibited. (d) No person shall furnish to a minor, by gift, sale or any other means, any tobacco product. It shall be an affirmative defense to prosecution under this paragraph, however, that the person furnishing the tobacco product to the minor was presented with and reasonably relied upon a document which identified the minor receiving the product as being eighteen (18) 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 products in such business in a manner so as to make all such tobacco products reasonably inaccessible to customers, thereby requiring a direct, face-to-face exchange of the tobacco product 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 paragraph shall not apply to vending machines and to self- service displays of tobacco products that are located in a public place where access by minors is prohibited. (f) Any person who sells or offers for sale at retail any tobacco product, including by means of a vending machine, shall display a warning sign as specified in this paragraph. If the tobacco product is 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 product is 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 to the point of sale of the tobacco product. 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: 3 WARNING IT IS ILLEGAL FOR ANY PERSON UNDER 18 YEARS OF AGE TO PURCHASE, POSSESS OR USE TOBACCO PRODUCTS AND, UPON CONVICTION, A FINE MAY BE IMPOSED. IT IS ILLEGAL FOR ANY PERSON TO SELL OR GIVE TOBACCO PRODUCTS TO A PERSON UNDER 18 YEARS OF AGE AND, UPON CONVICTION, A FINE AND IMPRISONMENT MAY BE IMPOSED. Section 3. That the existing Section 12-98 be renumbered to Section 12-99 and that a new Section 12-98 be added to Article V to read as follows: Sec. 12-98. Minors prohibited from purchasing, possessing or using tobacco products. (a) No minor shall purchase,possess, consume, or use any tobacco product. For purposes of this paragraph, to possess a tobacco product shall mean that the minor has or holds any amount of tobacco product anywhere on his or her person, or owns or has custody of a tobacco product, or has a tobacco product within his or her immediate presence and control. To consume or use a tobacco product shall mean, for purposes of this paragraph,to smoke, ingest, absorb, inhale or chew any tobacco product. (b) No minor shall obtain or attempt to obtain any tobacco product by misrepresentation of age or by any other method. Section 4. That the existing Section 12-98, renumbered as Section 12-99, shall be amended to read as follows: Sec. 12-99. Violations, penalties, presumptions and accountability. (a) Each day that a person violates any section of this Article V shall be considered as a separate and distinct violation. (b) Any person who violates any section of this Article V 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 ($100) shall be imposed for any violation of Section 12- 97(d). In addition, the Municipal Court Judge may require any minor convicted of a violation under Section 12-98 to complete up to twenty-four (24) hours of court- 4 approved public service and at such cost to the minor 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 a tobacco product shall raise the evidentiary presumption and constitute prima facie evidence in any prosecution of a violation under any section of this Article V of the fact that the substance within such package or container at the time of the violation was a tobacco product. 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 a tobacco product. (d) Proof that Section 12-97(d)has been violated three (3)times or more within a one-year period by one or more employees at a particular location of a retail business that sells or offers for sale tobacco products, shall raise the evidentiary presumption and constitute prima facie evidence in any prosecution of the owner or manager of such business under Section 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 Section 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 her 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 or more violations of Section 12-97(d)occurred. Further,these presumptions may be rebutted at trial by the presentation of any probative and competent evidence. (e) The provisions of Sections 17-4, 17-5 and 17-6 of this Code shall be applicable to all violations under this Article V. Section 5. Severability. If any word, clause, sentence, paragraph or other part of this Ordinance shall be judged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the word, clause, sentence,paragraph or other part thereof, directly involved in the controversy in which such judgment shall have been rendered. 5 Introduced, considered favorably on first reading, and ordered published this 21st day of January, A.D. 1997, and to be presented for final passage on the; &E day of Februaraf 13 1997. C � Iq ayor ATTEST: �171fIWnL� . City Clerk Passed and adopted on final reading this 18th day off ebruary, A.D. 1997 ' Mayor ATTEST: f �- ", City Clerk 6