Town of Bethlehem, NY
Albany County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Bethlehem 6-24-2020 by L.L. No. 3-2020. Amendments noted where applicable.]
The Town Board of the Town of Bethlehem hereby finds and declares that:
A. 
Tobacco use causes death and disease and continues to be an urgent public health challenge.
B. 
Tobacco companies sell and aggressively market products that are addictive and unreasonably dangerous, causing cancer, heart disease, and other serious illnesses.
C. 
Tobacco product marketing causes youth initiation and thwarts cessation attempts by the majority of users who want to quit.
D. 
Tobacco use is a pediatric epidemic.
E. 
E-cigarettes may contribute to youth smoking and reduce cessation success.
F. 
E-cigarettes and similar devices pose health hazards and renormalize tobacco use, regardless of nicotine content.
G. 
Tobacco products are highly addictive and inherently toxic and should not be treated as a benign consumer product, readily available in every store.
H. 
The Town of Bethlehem has a substantial interest in reducing the number of individuals of all ages who use cigarettes and other tobacco products, and a particular interest in protecting adolescents from tobacco dependence and the illnesses and premature death associated with tobacco use.
I. 
The Town of Bethlehem has a substantial and important interest in ensuring that existing state and local tobacco sales regulation is effectively enforced.
J. 
A local licensing system for retailers of tobacco products, electronic cigarettes, and other products regulated by Article 13-F of New York State Public Health Law is necessary and appropriate for the public health, safety, and welfare of our residents.
K. 
It is the intent of the Town of Bethlehem to implement effective measures through Chapter 114 to stop sales to youth of tobacco products, vapor products, and other products regulated by the New York Adolescent Tobacco Use Prevention Act, prevent the sale or distribution of contraband tobacco products, reduce the proliferation of tobacco outlets and marketing, and facilitate the enforcement of tax laws and other applicable federal, state and county laws relating to tobacco products.
This chapter is enacted by the Town Board of the Town of Bethlehem pursuant to its authority to adopt local laws under the New York State Constitution Article IX and Municipal Home Rule Law § 10.
As used in this chapter, the following terms shall have the meanings indicated:
ACCESSORY
A product that is intended or reasonably expected to be used with or for the human consumption of a tobacco product or electronic aerosol delivery system; does not contain tobacco and is not made or derived from tobacco; and meets either of the following: (1) is not intended or reasonably expected to affect or alter the performance, composition, constituents, or characteristics of a tobacco product or electronic aerosol delivery system; or (2) is intended or reasonably expected to affect or maintain the performance, composition, constituents, or characteristics of a tobacco product or electronic aerosol delivery system but (a) solely controls moisture and/or temperature of a stored tobacco product or electronic aerosol delivery system, or (b) solely provides an external heat source to initiate but not maintain combustion of a tobacco product. "Accessory" includes, but is not limited to, carrying cases, lanyards, lighters, and holsters.
APPLICANT
An individual, partnership, limited liability company, corporation, or other business entity seeking a tobacco retail license.
COMPONENT or PART
Software or assembly of materials intended or reasonably expected: (1) to alter or affect the tobacco product's or electronic aerosol delivery system's performance, composition, constituents, or characteristics, or (2) to be used with or for the human consumption of a tobacco product or electronic aerosol delivery system. "Component or part" excludes a constituent and an accessory, and includes, but is not limited to, e-liquids, cartridges, certain batteries, heating coils, programmable software, rolling papers, and flavorings for tobacco products or electronic aerosol delivery systems, whether they are sold together or separately.
CONSTITUENT
An ingredient, substance, chemical, or compound, other than tobacco, water, reconstituted tobacco sheet, or propylene glycol or vegetable glycerin that is added by the manufacturer to a covered product during the processing, manufacture, or packing of the covered product.
COVERED PRODUCT
A tobacco product, electronic aerosol delivery system, or another product regulated by § 1399-cc of the Public Health Law.
DEPARTMENT
The Department of Economic Development and Planning.
DIRECTOR
The Director of the Department of Economic Development and Planning.
ELECTRONIC AEROSOL DELIVERY SYSTEM
An electronic device that, when activated, produces an aerosol that may be inhaled, whether or not the aerosol contains nicotine. "Electronic aerosol delivery system" includes a component or part but not accessory, and a liquid or other substance to be aerosolized, whether or not separately sold. "Electronic aerosol delivery system" does not include drugs, devices, or combination products authorized for sale by the state or U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.
NEW TOBACCO RETAIL LICENSE
A tobacco retail license that is not a renewed tobacco retail license.
PERSON
A natural person, company, corporation, firm, partnership, business, organization, or other legal entity.
RENEWED TOBACCO RETAIL LICENSE
A tobacco retail license issued to an applicant for the same location at which the applicant possessed a valid tobacco retail license during the previous 12 months.
SCHOOL
A public or independent kindergarten, elementary, middle, junior high, or high school.
TOBACCO PRODUCT
A product made or derived from tobacco or which contains nicotine, marketed or sold for human consumption, whether consumption occurs through inhalation or oral or dermal absorption. "Tobacco product" includes a component or part, but not accessory. "Tobacco product" does not include drugs, devices, or combination products authorized for sale by the state or U.S. Food and Drug Administration as those terms are defined in the Federal Food, Drug and Cosmetic Act.
TOBACCO RETAILER
A retailer licensed pursuant to this chapter.
TOBACCO RETAIL LICENSE
A license issued pursuant to § 114-4 of this chapter by the Department to a person to engage in the retail sale in the Town of Bethlehem of a covered product.
A. 
No person shall sell, offer for sale, or permit the sale of a covered product by retail within the Town of Bethlehem without a valid tobacco retail license. A tobacco retail license is not required for a wholesale dealer who sells products to retail dealers for the purpose of resale only and does not sell a covered product directly to consumers.
B. 
Notwithstanding the requirements set forth in Subsection A, this chapter shall not apply to registered organizations pursuant to § 3364 of the Public Health Law.
C. 
A tobacco retail license issued pursuant to this chapter is nontransferable and nonassignable and valid only for the applicant and the specific address indicated on the tobacco retail license. A separate tobacco retail license is required for each address where a covered product is sold or offered for sale. A change in business ownership or business address requires a new tobacco retail license.
A. 
An application for a new tobacco retail license or a renewed tobacco retail license shall be submitted to the Department in writing upon a form provided by the Department and shall contain information as required by the Department. The Department may require the forms to be signed and verified by the applicant or an authorized agent thereof.
B. 
Each application for a tobacco retail license shall be accompanied by a nonrefundable application fee.
C. 
Upon the receipt of a completed application for a tobacco retail license and the application fee required by Subsection B, the Department may inspect the location at which sales of a covered product are to be permitted. The Department may ask the applicant to provide additional information that is reasonably related to the determination of whether a tobacco retail license may issue.
A. 
No tobacco retail license shall be issued to a seller of a covered product that is not in a fixed, permanent location.
B. 
The issuance of a tobacco retail license pursuant to this chapter is done in the Town of Bethlehem's discretion and shall not confer upon licensee any property rights in the continued possession of the license.
C. 
The Department shall collect from the applicant the tobacco retail license fee prescribed by § 114-7B and determined by the Tobacco and Vapor Product Sales Fee Schedule prior to issuing a tobacco retail license.
D. 
The Department may refuse to issue a tobacco retail license to an applicant if it finds that one or more of the following bases for denial exists:
(1) 
The information presented in the application is incomplete, inaccurate, false, or misleading;
(2) 
The fee for the application has not been paid as required;
(3) 
The applicant does not possess a valid certificate of registration required by state or federal law for the sale of a covered product;
(4) 
The Department has previously revoked a tobacco retail license issued under this chapter to the applicant;
(5) 
The Department has previously revoked a tobacco retail license issued under this chapter for the same address or location;
(6) 
The applicant has been found by a court of law or administrative body to have violated a federal, state, or local law pertaining to:
(a) 
Trafficking in contraband tobacco products or illegal drugs;
(b) 
The payment or collection of taxes on a covered product'
(c) 
The display of a covered product or of health warnings pertaining to a covered product; or
(d) 
The sale of a covered product.
(7) 
The applicant has not paid to the Town of Bethlehem outstanding fees, fines, penalties, or other charges owed to the Town of Bethlehem, including the fee for the tobacco retail license required by § 114-7; or
(8) 
The Department determines, in accordance with written criteria established to further the purposes of this chapter, that the applicant is otherwise not fit to hold a tobacco retail license.
A. 
A tobacco retail license issued pursuant to this chapter shall be valid for no more than one year and shall expire on December 31. As set forth in § 114-12, a tobacco retail license may be revoked for cause by the Department prior to its expiration.
B. 
The tobacco retailer shall pay an annual tobacco retail license fee.
C. 
The Director may discount the tobacco retail license fee required by § 114-7B for an application received within six months of the expiration date.
A. 
A tobacco retail license issued pursuant to this chapter shall be conspicuously displayed at the location where a covered product is sold so that it is readily visible to customers.
B. 
Selling, offering for sale, or permitting the sale of a covered product without a valid tobacco retail license displayed in accordance with Subsection A constitutes a violation of this chapter.
A. 
For the first year after the effective date of this chapter, the Department shall accept an application for a tobacco retail license only from an applicant for the same location at which the applicant possessed a valid certificate of registration as a tobacco retail dealer or vapor products dealer from the New York State Department of Taxation and Finance 180 days prior to the effective date of this chapter.
B. 
Beginning one year from the effective date, the Department shall issue a renewed tobacco retail license to eligible applicants.
C. 
Thereafter, the Department shall issue only one new tobacco retail license for every two tobacco retail licenses that are not renewed, until a floor of seven is reached. Thereafter, the Department shall issue no more than seven tobacco retail licenses per year.
D. 
Whenever the number of valid applications for a new tobacco retail license exceeds the maximum number of new tobacco retail licenses that may be issued pursuant to this section, the Department shall grant new tobacco retail licenses using the following priorities:
(1) 
A new tobacco retail license shall be granted, first, to an applicant for an establishment whose property line is located 1,000 feet or more from the nearest point of the property line of a school who holds but does not seek to renew a valid tobacco retail license for an establishment whose property line is within 1,000 feet of the nearest point of the property line of a school. If there are more valid applications from these applicants than the number of available new tobacco retail licenses, the new tobacco retail license(s) shall be granted to these applicants by lottery;
(2) 
A new tobacco retail license shall be granted, second, to an applicant whose property line is located 1,000 feet or more from the nearest point of the property line of a school. If there are more valid applications from these applicants than the number of available new tobacco retail licenses, the new tobacco retail license(s) shall be granted to these applicants by lottery;
(3) 
A new tobacco retail license shall be granted, third, to an applicant who will sell a covered product at an establishment where the operator restricts entry to persons 21 years and older. If there are more valid applications from these applicants than the number of available new tobacco retail licenses, the new tobacco retail license(s) shall be granted to these applicants by lottery;
(4) 
Any remaining new tobacco retail licenses shall be granted to applicants by lottery.
No tobacco retailer whose property line is located within 1,000 feet of the nearest point of the property line of a school shall distribute without charge, sell, offer for sale, or possess with intent to sell an electronic aerosol delivery system.
A. 
The Department or its authorized designee(s) shall enforce the provisions of this chapter. The Department may conduct periodic inspections to ensure compliance with this chapter.
B. 
In addition to the penalties provided for in § 114-12, a person found to be in violation of this chapter shall be liable for a civil penalty of not more than $250 for the first violation, not more than $500 for the second violation within a two-year period, and not more than $1,000 for the third and each subsequent violation within a two-year period, or as determined by the Director. Each day on which a violation occurs shall be considered a separate and distinct violation.
A. 
The Department may suspend or revoke a tobacco retail license issued pursuant to this chapter for violations of the terms and conditions of this chapter or for violation of a federal, state, or local law or regulation pertaining to:
(1) 
Trafficking a contraband covered product or illegal drug;
(2) 
The payment or collection of taxes on a covered product;
(3) 
The display of a covered product or of health warnings pertaining to a covered product; or
(4) 
The sale of a covered product.
B. 
The Department may revoke a tobacco retail license if the Department finds that one or more of the bases for denial of a license under § 114-6 existed at the time application was made or at any time before the license issued.
The Department may issue and amend rules, regulations, standards, guidelines, or conditions to implement and enforce this chapter.
The provisions of this chapter are declared to be severable, and if a section of this chapter is held to be invalid, the invalidity shall not affect the other provisions of this chapter that can be given effect without the invalidated provision.
This chapter shall take effect upon the expiration of Bethlehem Town Law No. 2 of 2020 or December 31, 2020, whichever is earlier, and its filing with the Secretary of State as required by § 27 of the Municipal Home Rule Law.