[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:
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.
An individual, partnership, limited liability company, corporation,
or other business entity seeking a tobacco retail license.
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.
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.
A tobacco product, electronic aerosol delivery system, or
another product regulated by § 1399-cc of the Public Health
Law.
The Department of Economic Development and Planning.
The Director of the Department of Economic Development and
Planning.
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.
A tobacco retail license that is not a renewed tobacco retail
license.
A natural person, company, corporation, firm, partnership,
business, organization, or other legal entity.
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.
A public or independent kindergarten, elementary, middle,
junior high, or high school.
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.
A retailer licensed pursuant to this chapter.
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:
(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.
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.
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:
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.
