[Ord. No. 6-2020, 2-25-2020[1]]
As used in this Article, the following words and phrases shall
have the meanings respectively ascribed to them by this Section:
The City’s authorized designee shall mean the Miller
County Health Center.
Any product containing, made, or derived from tobacco or
nicotine, whether natural or synthetic, that is intended for human
consumption or is likely to be consumed, whether smoked, heated, chewed,
snorted, sniffed, absorbed, dissolved, inhaled or ingested by any
other means, including, but not limited to, cigarettes, e-liquids,
cigars, little cigars, pipe tobacco, chewing tobacco, snuff, or snus.
This also includes any component or accessory used in the consumption
of tobacco products, whether or not they contain nicotine, including,
but not limited to, filters, cartridges, pods, pens, rolling papers,
or pipes. This does not include drugs, devices, or combination products
authorized for sale as a cessation product approved by the U.S. Food
and Drug Administration, as those terms are defined in the Federal
Food, Drug and Cosmetic Act.
Electronic delivery systems, including any device that can
be used to deliver aerosolized or vaporized nicotine or any other
substance to the person inhaling from the device including, but not
limited to, e-cigarettes, e-cigars, e-pipes, vapor products, or e-hookahs.
Any display from which customers may select a tobacco product
or e-cigarettes, as defined herein. without assistance from the tobacco
retailer or the tobacco retailer's agent, employee or representative.
A vending machine is a form of self-service display.
To sell, give, barter, exchange, provide, deliver, or otherwise
distribute tobacco products or e-cigarettes, unless the person is
delivering or accepting delivery in such person's capacity as an employee.
Sale or sell also includes attempts to sell, offers to sell, barter,
or exchange, whether gratuitously or for any type of compensation.
Any individual, firm, partnership, joint venture, association,
joint stock company, corporation, unincorporated business entity,
or any other group or combination acting as a unit that owns or operates,
any manufacturer, producer, distributor, supplier, wholesaler or retailer
of tobacco products or e-cigarettes. This does not include the employees
of an owner or operator of any manufacturer, producer, distributor,
supplier, wholesaler or retailer of tobacco products or e-cigarettes.
[Ord. No. 6-2020, 2-25-2020]
It shall be unlawful for any person to engage in the sale of
tobacco products or e-cigarettes within the corporate limits of the
City of Eldon without first having obtained a tobacco retail license.
[Ord. No. 6-2020, 2-25-2020]
A.
The
public policy of the City is that the holding of licenses to sell
tobacco or tobacco products is a privilege and not a right. The provisions
of this Section are designed to ensure that tobacco and tobacco product
licenses are granted only to persons of responsible and moral character.
B.
There
is hereby established for the City a Tobacco Control Board ("the Board")
which shall be composed of the City Administrator, City Marshall or
Police Chief and City Attorney. No license shall be issued under this
Article without the written approval of a majority of the Tobacco
Control Board.
C.
The
duty of the Tobacco Control Board shall be to determine whether or
not applications for license comply with the provisions of this Article.
Licenses shall only be granted to persons of good character. In determining
the good character of the applicant. the Tobacco Control Board shall
apply the criteria set out in this Article. The Tobacco Control Board
shall not be required to hold any hearing of any kind whatsoever in
determining whether a new license shall be granted or an old license
renewed but may hold hearings if it deems such hearings in the public
interest.
D.
All
application for licenses and all petitions so filed with such applications
shall be referred to the Tobacco Control Board by transmitting all
applications to the City Marshall or Police Chief who shall review
and make recommendation on all applications to other members of the
Tobacco Control Board. The review of the applications for license
shall normally be completed and returned to the City Clerk within
ten (10) working days of the date of the application. The Tobacco
Control Board shall also draw up and approve a form of application
which all applicants shall use.
E.
Any
applicant aggrieved by a decision of the Tobacco Control Board or
any citizen maintaining a residence, place of business or owning property
within six hundred (600) feet of the property upon which the licensed
establishment is located may file a petition with the Board of Aldermen
within ten (10) days after the action by the Tobacco Control Board
appealing said action. The Board of Aldermen shall have the final
authority and may act as it deems appropriate under the law.
[Ord. No. 6-2020, 2-25-2020]
A.
A tobacco retail license shall be issued by the City or its authorized
designee for a fee of five dollars ($5.00) for each location.
B.
Applicants for a license must provide the full name of the applicant,
the applicant's business address and telephone number, the name of
the business for which the license is sought, and any additional information
the deems necessary.
C.
A tobacco retail license shall be valid and renewed annually by the
issue date of the previous year's license.
D.
Any new retailer in the City of Eldon must procure a tobacco retail
license prior to initiating in the sale of tobacco products or e-cigarettes
within the corporate limits and six (6) months after the passage of
this Article, no tobacco retailer shall engage in the sale of tobacco
products or e-cigarettes without a tobacco retail license.
E.
The tobacco retail license must be displayed at each tobacco retail
location at all times.
F.
No tobacco retail license shall be issued or renewed to an establishment
unless the tobacco retailer signs a form stating that the tobacco
retailer is aware of this Article and has provided training to all
employees on the sale of tobacco products and e-cigarettes. Such training
shall include information that the sale of tobacco products and e-cigarettes
to persons under twenty-one (21) years of age is illegal, the types
of identification legally acceptable for proof of age, and that sales
to persons under twenty-one (21) years of age shall subject the tobacco
retailer to penalties.
[Ord. No. 6-2020, 2-25-2020]
Upon receipt of the tobacco retail license fee, the tobacco
retailer shall be entered into the "Tobacco Retailer Register" the
date of payment, the full name of applicant, applicant's business
address and phone number. The City or its authorized designee shall
furnish the applicant with a tobacco retail license to be displayed
at all time at each location engaging in the sales of tobacco products
or e-cigarettes.
[Ord. No. 6-2020, 2-25-2020]
In case of mutilation or destruction of such tobacco retail
license, a duplicate copy, marked as such, shall be issued. A charge
of one dollar ($1.00) shall be made for each such duplicate license.
[Ord. No. 6-2020, 2-25-2020]
A tobacco retail license is not transferable and no refund shall
be made for the tobacco retail license fee due to termination in the
sales of tobacco products or e-cigarettes in the City of Eldon or
before expiration of the license period.
[Ord. No. 6-2020, 2-25-2020]
A.
No
tobacco retailer shall themselves, or through any agent, employee,
or representative give, sell, barter or otherwise distribute any tobacco
product or e-cigarettes to any person under twenty-one (21) years
of age.
B.
Each
person selling or otherwise distributing tobacco products or e-cigarettes
shall verify the age of the purchaser by means of government-issued
photographic identification containing the bearer's date of birth
demonstrating that the purchaser is twenty-one (21) years of age or
older. No such verification is required for a person over the age
of thirty (30).
1.
That a person appeared to be over the age of thirty (30) shall not
constitute a defense to a violation of this Section. If a person fails
to provide adequate proof of age, the tobacco retailer or tobacco
retailer's agent, employee, or representative shall not sell any tobacco
product to the person.
[Ord. No. 6-2020, 2-25-2020]
No tobacco retailer shall sell or permit the sale of tobacco
products or e-cigarettes unless a notice is posted, in a manner conspicuous
to both employees and consumers, within six (6) feet of each register
and any other location where tobacco products are available for purchase.
The City or its authorized designee shall provide this notice, which
shall state "NO PERSON UNDER THE AGE OF 21 MAY BE SOLD TOBACCO PRODUCTS,
INCLUDING ELECTRONIC SMOKING DEVICES," legibly printed in high contrast
with red, capitalized letters at least one (1) inch high. These signs
must be at least fourteen (14) inches by eleven (11) inches, and be
unobstructed in their entirety.
[Ord. No. 6-2020, 2-25-2020]
No person shall sell or otherwise distribute tobacco products
or e-cigarettes by or from a self-service display except in places
where persons under the age of twenty-one (21) are prohibited access.
[Ord. No. 6-2020, 2-25-2020]
A.
The
enforcement and the authority to issue tickets, citations and summons
for violations of this Article are handled by the City of Eldon or
its authorized designee.
1.
All licensed premises must be open to inspection during regular business
hours.
2.
From time to time, but at least twice per year, compliance checks
shall be conducted at each licensed location. Compliance checks shall
be conducted by engaging persons between the ages of seventeen (17)
and twenty (20) to enter licensed premises to attempt to purchase
tobacco products or e-cigarettes. Unannounced follow-up compliance
check(s) of all non-compliant tobacco retailers shall be conducted
within three (3) months of any violation of this Article.
3.
The results of all compliance checks and inspections shall be published
at least annually and made available to the public upon request.
4.
Any citizen who desires to register a complaint pursuant to this
Article may do so by contacting the City or its authorized designee
and the tobacco retailer shall be investigated.
[Ord. No. 6-2020, 2-25-2020]
A.
If
the City or its authorized designee observes violation(s) of this
Article, the following civil fines and penalties shall be imposed
on the tobacco retailer:
1.
For a first violation, a fine no less than three hundred dollars
($300.00).
2.
For a second violation within a thirty-six (36) month period, a fine
no less than six hundred dollars ($600.00) and the tobacco retail
license of a tobacco retailer may be suspended for seven (7) days.
3.
For a third violation within a thirty-six (36) month period, a fine
no less than one thousand dollars ($1,000.00) and the tobacco retail
license of a tobacco retailer shall be suspended for a minimum of
thirty (30) days.
4.
For a fourth and all subsequent violations within a thirty-six (
36) month period, a fine no less than one thousand dollars ($1,000.00),
and the tobacco retail license of a tobacco retailer shall be revoked.
5.
Any business found to be selling tobacco products without a license
shall be issued a permanent no sales order for tobacco products and
be ineligible to receive a tobacco retail license for a period of
three (3) years.
[Ord. No. 6-2020, 2-25-2020]
A.
The
City or its authorized designee may, in addition to other penalties
provided by this Article, suspend or revoke a tobacco retail license
issued pursuant to this Article if the licensee or his/her employees
or agents shall have been shown to be guilty of, have violated or
be involved in any of the following:
1.
Violation of any of the provisions of this Article or any of the
laws of this City;
2.
Fail to pay fines issued in accordance with this Article;
3.
Violation of any local, State, or Federal law pertaining to the sale
of tobacco products or e-cigarettes;
4.
Any false, misleading or fraudulent statement of fact in the tobacco
retail license application for the licensee or in any other document
required by the City or its authorized designee in conjunction therewith;
5.
A conviction of a crime involving a felony by licensee or any of
the officers or the managing officer of licensee;
6.
An offense resulting in a conviction involving the use of force or
violence upon the person of another in the operation of the business
or licensee;
7.
Operation of the business in such a manner that it constitutes a
nuisance to the neighborhood.
B.
The
City or its authorized designee shall notify the licensee in writing
of any intended action and the reasons therefor and of the right to
request a hearing in regard thereto. The action indicated in the written
notice shall be final unless the licensee shall file a written request
for hearing with the City or its authorized designee within ten (10)
days of the notice. If a request for hearing is received, the City
or its authorized designee shall proceed in accordance with this Article.
C.
All
tobacco products shall be removed from the premises upon suspension
or revocation of a tobacco retail license. Failure to remove shall
constitute a separate violation punishable by a fine for each and
every day of non-compliance.
[Ord. No. 6-2020, 2-25-2020]
Whenever a tobacco retail license is revoked, it shall be necessary,
before any license is issued to operate a tobacco retail establishment
at the same location, that the procedures for issuance of a tobacco
retail license be followed as set forth in this Article.
[Ord. No. 6-2020, 2-25-2020]
A.
Any
person who is licensed pursuant to this Article and who has received
a notice of intent to suspend or revoke said license may request a
hearing before the Board. Requests for such hearings shall be filed
with the City or its authorized designee within ten (10) days after
notice is given of the intention to suspend or revoke. Upon receipt
of a timely written request for hearing, the Board or a hearing examiner
designated by the Board shall call a hearing and shall set forth in
writing and send to licensee, by means of registered mail, certified
mail or hand delivery, notice that within a period of not less than
five (5) days nor more than fourteen (14) days from the date of the
posting of said notice, a hearing shall be conducted to determine
the existence of any facts which constitute grounds for the suspension
or revocation of a license or permit. The notification shall include
the date, time and place of the hearing.
B.
The
Board is hereby authorized to appoint a hearing examiner who shall
have authority to conduct the hearing as set forth herein. At least
two (2) members of the Board shall be in attendance. The applicant
or licensee may have the assistance of counsel or may appear by counsel
and shall have the right to present evidence. In the event that the
applicant or licensee fails to appear at the hearing, the evidence
of the existence of facts which constitute grounds for the denial,
suspension or revocation of the license or permit shall be considered
unrebutted. The hearing need not be conducted according to the rules
of evidence. Any relevant evidence may be admitted and considered
by the Board if it is the sort of evidence on which responsible persons
are accustomed to rely in the conduct of serious affairs. Objections
to evidence shall be noted and a ruling given by the hearing examiner.
A copy of the decision of the hearing examiner specifying findings
of fact and the reasons for the decision shall be furnished to the
applicant or licensee. For purposes of appeal, the decision of the
hearing examiner, if ratified by the Board, shall be final.
C.
Upon
a final decision being rendered, the parties shall be informed of
the right to appeal under the provisions of the Administrative Procedure
Act. Any decision not appealed within thirty (30) days from the date
of the decision is final.
[Ord. No. 6-2020, 2-25-2020]
The City of Eldon or its authorized designee shall not initiate
criminal proceedings against any person other than a tobacco retailer
for any alleged violation of this Article.
[Ord. No. 6-2020, 2-25-2020]
The City of Eldon or its authorized designee shall engage in
a continuing public health education program to explain and clarify
the purposes and requirements of this Article to citizens affected
by it, and to guide tobacco retailers, owners, operators, and managers
in their compliance. The program may include publication of a brochure
for affected tobacco retailers explaining the provisions of Chapter
and signage mandated by this Article.
[Ord. No. 6-2020, 2-25-2020]
This Article shall be liberally construed so as to further its
purposes.
[Ord. No. 6-2020, 2-25-2020]
The provisions of this Article are hereby declared severable,
and if any provision, clause, sentence, or paragraph of this Article
or the application thereof to any person or circumstances held by
a court of competent jurisdiction to be unconstitutional or otherwise
invalid, such a ruling shall not affect the other parts of this Article
that can be given effect.
