[1]
Editor's Note: Prior ordinance history: Ordinance Nos. 782,
788, 852.
[Ord. No. 1059, 3-16-2017; amended 6-14-2022 by Ord. No. 1135]
Except as may otherwise be provided or clearly implied by context,
all terms shall be given their commonly accepted definitions. For
the purpose of this article, the following definitions apply unless
the context clearly indicates or requires a different meaning.
(a)
ALTERNATIVE NICOTINE PRODUCT - Means any noncombustible product containing
nicotine that is intended for human consumption, whether chewed, absorbed,
dissolved, or ingested by any other means. The term does not include
any cigarette, cigar, snuff, tobacco in any other form in which it
may be utilized for smoking or chewing, any electronic smoking device,
or any product regulated as a drug or device by the United States
Food and Drug Administration under Chapter V of the Federal Food,
Drug, and Cosmetic Act.
(b)
APPLICANT - Means any person seeking the authority to sell tobacco
products in the City by (1) applying for a new City Tobacco License;
or (2) applying for a renewal of an existing City Tobacco License.
(d)
COMPLIANCE CHECKS - Means the system the city uses to investigate
and ensure that those licensed to sell tobacco products are following
and complying with the requirements of this article. Compliance checks
may involve the use of persons under the age of 21 as authorized by
this article. Compliance checks may also be conducted by other units
of government for the purpose of enforcing Federal, State and local
laws and regulations relating to tobacco products.
(e)
E-CIGARETTE - Means any device that can be used to deliver aerosolized
or vaporized nicotine to the person inhaling from the device, including
an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. "E-cigarette"
includes any component, part, or accessory of such a device, whether
or not sold separately, and includes any e-cigarette substance. "E-cigarette"
does not include any universal use battery or battery charger when
sold separately. In addition, "e-cigarette" does not include drugs,
devices, or combination products authorized for sale by the U.S. Food
and Drug Administration, as those terms are defined in the Federal
Food, Drug and Cosmetic Act.
(f)
E-CIGARETTE SUBSTANCE - Means any liquid, gel, or other substance
that is sold, marketed or intended for use in an e-cigarette, whether
or not such substance contains nicotine.
(g)
LICENSEE - Means any person with a valid City Tobacco License issued
by the City pursuant to the terms of this article.
(h)
MINOR - Means any individual who has not yet reached the age of 18
years.
(i)
PERSON - Means any individual, licensee, association, partnership,
company, corporation or any other legal or commercial entity and successor,
representative, agent, agency, or instrumentality thereof.
(j)
SALE - Means any transfer of goods for money, trade, barter, or other
consideration.
(k)
SELF-SERVICE DISPLAY - Means a display that contains cigarettes,
cigarette papers, cigars, snuff, tobacco in any other form which it
may be utilized for smoking or chewing, electronic smoking devices,
or alternative nicotine products, and is located in an area that is
openly accessible to the retailer's customers, and from which customers
can readily access those products without the assistance of a salesperson.
A display case that holds those products behind locked doors does
not constitute a self-service display.
(l)
STATE TOBACCO LICENSE - Means a tobacco product dealer's license
issued by the North Dakota Attorney General pursuant to Chapter 57-36
of the North Dakota Century Code.
(m)
TOBACCO PRODUCTS - Means any product that is made from or derived
from tobacco and is intended for human consumption or is likely to
be consumed, whether smoked, heated, chewed, absorbed, dissolved,
inhaled, or ingested by any other means, including a cigarette, cigar,
pipe tobacco, chewing tobacco, snuff, snus, or an e-cigarette. "Tobacco
product" includes any component or accessory used in the consumption
of a tobacco product, such as filters, rolling papers, pipes, or liquids
used in electronic smoking devices. "Tobacco product" does not include
drugs, devices, or combination products authorized for sale by the
U.S. Food and Drug Administration, as those terms are defined in the
Federal Food, Drug and Cosmetic Act.
(n)
TOBACCO SPECIALTY STORE - Means a retail store that:
(1)
Derives at least 75% of its revenue from the sale of cigarettes,
cigarette papers, cigars, snuff, tobacco in any other form in which
it may be utilized for smoking or chewing, electronic smoking devices,
or alternative nicotine products; and
(2)
Does not permit minors to enter the premises unless accompanied
by a parent or legal guardian.
(o)
VENDING MACHINE - Means a machine, appliance, or other mechanical
device operated by currency, token, debit card, credit card, or other
means of payment that is designed or used for vending purposes, including
machines or devices that use remote control locking mechanisms.
[Ord. No. 1059, 3-16-2017; amended 6-14-2022 by Ord. No. 1135]
(a)
License.
(1)
License required. No person shall directly or indirectly, or
by means of any device, keep for retail sale, sell at retail, or otherwise
dispense any tobacco products within the City of Williston, without
a valid City Tobacco License. Any person required to have a current
and valid State tobacco license must file a copy of such valid State
tobacco license, along with an application for licensure, to the City
of Williston Auditor's Office and request approval by the City Commission.
The City reserves the right to suspend or revoke any person's privilege
to sell tobacco products within the City pursuant to the terms of
this article, whether or not such person has a valid State tobacco
license.
(2)
Application. For persons who are not required to obtain a State
tobacco license, an application for a City Tobacco License to sell
tobacco products must be made on a form provided by the City. The
application must contain the full name of the applicant, the applicant's
business addresses and telephone numbers, the name of the business
for which the City Tobacco License is sought, and any additional information
the City deems necessary. Upon receipt of a completed application,
the City Auditor will forward the application to the City Commission
for action in a timely manner, pending review and approval by any
additional necessary departments (e.g. Police, Building, Fire). If
the City Auditor determines that an application is incomplete, he
or she will return the application to the applicant with notice of
the information necessary to make the application complete.
(3)
Action. The City Commission may either approve or deny the City
Tobacco License application, or it may delay action for a reasonable
period of time, as necessary to complete any investigation of the
application or the applicant it deems necessary. If the City Commission
approves the City Tobacco License application, the City Auditor will
issue the City Tobacco License to the applicant. If the City Commission
denies the license application, a Notice of the Denial will be issued
to the applicant, along with notice of the applicant's right to appeal
the City Commission's decision.
(4)
Term. All City Tobacco Licenses issued under this section expire
on December 31st following the date of issuance.
(5)
Revocation or suspension. Any City Tobacco License issued under this section may be revoked or suspended as provided in Section 9-117.
(6)
Transfers. All City Tobacco Licenses issued under this section
shall be valid only on the premises for which the City Tobacco License
was issued and only for the person to whom the City Tobacco License
was issued. No transfer of any City Tobacco License to another location
or person shall be valid unless approved at a regular meeting of the
City Commission.
(7)
Movable place of business. No City Tobacco License shall be
issued to a movable place of business. Only fixed location businesses
shall be eligible to be licensed under this section.
(8)
Delinquent taxes/special assessments. No City Tobacco License
or renewal of license shall be granted to applicants whose business
premises have delinquent taxes or special assessments.
(9)
Display. All City Tobacco Licenses and State tobacco licenses
must be posted and displayed at all times in plain view of the general
public on the licensed premises.
(10)
Renewals. The renewal of a City Tobacco License issued under
this section will be handled in the same manner as the original application.
If a person has a valid State tobacco license, a copy of such license
renewal application must be filed with the City Auditor's office by
August 31st. Renewals of City Tobacco Licenses will take place annually
as determined by the City Auditor's office and made known by City
resolution.
(11)
Ability to sell tobacco products in the City is a privilege
and not a right. The issuance of a City Tobacco License under this
section is a privilege and not an absolute right of the applicant
and does not entitle the holder to an automatic renewal of the City
Tobacco License. In addition, the ability to sell tobacco products
in the City upon the filing of a valid State tobacco license is contingent
upon compliance with the terms of this article.
(b)
Fees. No City Tobacco License will be issued under this section until
the appropriate license fee has been paid in full. The fee for a City
Tobacco License under this article will be established from time to
time by resolution of the City Commission.
(c)
Basis for denial of license.
(1)
Grounds for denying the issuance or renewal of a City Tobacco
License under this article, or prohibiting the sale of tobacco products
in the City upon the filing of a valid State tobacco license, include,
but are not limited to, the following:
a.
The applicant is under the age of 18 years.
b.
The applicant has been convicted within the past 12 months of
any violation of a Federal, State, or local law, ordinance provision,
or other regulation relating to tobacco products.
c.
The applicant has had a City Tobacco License revoked within
the preceding 12 months of the date of application.
d.
The applicant provides false or misleading information on the
City Tobacco License application.
e.
The applicant is prohibited by Federal, State, or other local
law, ordinance, or other regulation from holding a license to sell
tobacco products.
(2)
Except as may otherwise be provided by law, the existence of
any particular ground for denial does not mean that the City must
deny a City Tobacco License application.
(3)
If a City Tobacco License is mistakenly issued or renewed to
a person who was ineligible to obtain a City Tobacco License, it shall
be revoked immediately upon the discovery that the person was ineligible
for the City Tobacco License under this article. In the event that
a City Tobacco License is revoked under this article, the licensee
may request in writing a hearing on the matter.
(d)
Prohibited acts.
(1)
a.
It is an infraction for any person to sell or furnish to an
individual under twenty-one years of age, or procure for an individual
under twenty-one years of age, cigarettes, cigarette papers, cigars,
snuff, tobacco in any other form in which it may be utilized for smoking
or chewing, electronic smoking devices, or alternative nicotine products.
As used in this subsection, "sell" includes dispensing from a vending
machine under the control of the purchaser.
b.
It is an infraction for any person to display or offer for sale
cigarettes, cigarette papers, cigars, snuff, tobacco in any other
form in which it may be utilized for smoking or chewing, electronic
smoking devices, or alternative nicotine products through a self-service
display. This subsection does not apply to a:
(2)
It is a noncriminal offense for an individual under twenty-one
years of age to purchase, possess, smoke, or use cigarettes, cigars,
cigarette papers, snuff, tobacco in any other form in which it may
be utilized for smoking or chewing, electronic smoking devices, or
alternative nicotine products. However, an individual under twenty-one
years of age may purchase and possess tobacco, electronic smoking
devices, or alternative nicotine products as part of a compliance
survey program when acting with the permission of the individual's
parent or guardian and while acting under the supervision of any law
enforcement authority. A state agency, city, county, board of health,
tobacco, electronic smoking devices, or alternative nicotine products
retailer; or association of tobacco, electronic smoking devices, or
alternative nicotine products retailers may also conduct compliance
surveys, after coordination with the appropriate local law enforcement
authority.
(3)
Subsections 1, 2, and 3 do not apply to an individual between 18 years and twenty-one years of age who possesses cigarettes, cigarette papers, cigars, snuff, tobacco in any other form in which it may be used for smoking or chewing, electronic smoking devices, or alternative nicotine products when required in the performance of the individual's duties as an employee.
(4)
It is a noncriminal offense for an individual under twenty-one
years of age to present or offer to another individual a purported
proof of age which is false, fraudulent, or not actually the individual's
own proof of age, for the purpose of attempting to purchase or possess
cigarettes, cigars, cigarette papers, snuff, tobacco in any other
form in which it may be utilized for smoking or chewing, electronic
smoking devices, or alternative nicotine products.
(5)
An individual 14 years of age or older found to have violated Subsection c or d of this Section 9-115(d)(3) shall be fined $25.
a.
Any individual who has been cited for a violation of Subsections a-d of Section 9-115(d)(3) may appear before a court of competent jurisdiction and pay the fee by the time scheduled for a hearing or, if bond has been posted, said individual may forfeit the bond by not appearing at the scheduled time. An individual appearing at the time scheduled in the citation may make a statement in explanation of that individual's action and the judge, in his or her discretion, may waive, reduce, or suspend the fee or bond, or both. If the individual cited follows the procedures of this subsection, said individual is deemed to have admitted the violation and has waived the right to a hearing on the issue of commission of the violation. The bond required to secure appearance before the court must be identical to the fee. This section does not allow a citing officer to receive the fee or bond.
b.
If an individual cited for a violation of Subsections a-d of Section 9-115(d)(3) does not choose to follow the procedures provided under Subsection f, 1 of Section 9-115(d)(3), that individual may request a hearing on the issue of the commission of the violation cited. The hearing must be held at the time scheduled in the citation, or at some future time not to exceed 90 days from the date of the citation, which shall be set at the time scheduled in the citation. At the time of a request for a hearing on the issue on commission of the violation, the individual cited shall deposit with the court an appearance bond equal to the fee for the violation cited.
c.
The failure to post bond or to pay an assessed fee is punishable
as a contempt of court, except an individual under twenty-one years
of age may not be imprisoned for the contempt.
(6)
The prosecution must prove the commission of a cited violation under Subsections a-d of this Section 9-115(d)(3) by a preponderance of the evidence.
(7)
A law enforcement officer who cites a minor for a violation of this Section 9-115(d) shall mail a notice of the violation to the parent or legal guardian of the minor within 10 days of the citation.
(8)
A person adjudged guilty of contempt for failure to pay a fee
or fine may be sentenced by the court to a sanction or order designed
to ensure compliance with the payment of the fee or fine, or to an
alternative sentence or sanction, including community service.
(9)
Sale of tobacco product through vending machines restricted.
a.
It is an infraction for any person to sell or furnish cigarettes, cigarette papers, cigars, snuff, tobacco in any other form in which it may be utilized for smoking or chewing, electronic smoking devices, or alternative nicotine products through a vending machine, except as provided in Section 9-115(b).
b.
1.
A vending machine that is located in an area in which individuals
under twenty-one years of age are not permitted access; or
2.
A vending machine that dispenses cigarettes, cigarette papers,
cigars, snuff, tobacco in any other form in which it may be utilized
for smoking or chewing, electronic smoking devices, or alternative
nicotine products through the operation of a device that requires
a salesperson to control the dispensation of such product.
c.
It is an infraction for any person to sell or furnish cigarettes,
cigarette papers, cigars, snuff, tobacco in any other form in which
it may be utilized for smoking or chewing, electronic smoking devices,
or alternative nicotine products through any vending machine, if those
products are placed together with any non-tobacco product, other than
matches, in the vending machine.
(10)
No person operating a business where tobacco products are sold
or offered for sale shall sell, permit to be sold, offer for sale,
or display for sale any tobacco product in any manner, unless such
tobacco products are stored for sale behind a counter in an area that
is accessible only to the employees of such business.
(11)
No person shall sell any e-cigarette substance unless such substance
is sold in a container that satisfies the child-resistant effectiveness
standards set forth in Section 1700.15 of title 16, Code of Federal
Regulations, as determined through testing in accordance with the
method described in Section 1700.20 of title 16, Code of Federal Regulations,
as such sections may be amended. This restriction does not include
a sealed, pre-filled, and disposable container of e-cigarette substance
in which such container is inserted directly into an e-cigarette,
if the e-cigarette substance is inaccessible through customary or
reasonably foreseeable handling or use, including reasonably foreseeable
ingestion or other contact by children.
(12)
No minor shall attempt to disguise his or her true age by the
use of a false form of identification, whether the identification
is that of another person or one on which the age of the person has
been modified or tampered with to represent an age older than the
actual age of the person.
(13)
All licensees under this chapter are liable for the actions
of their employees regarding the sale of tobacco products on the licensed
premises, and the sale of an item by an employee shall be considered
a sale by the licensee.
(14)
Compliance checks and inspection. All licensed premises shall be open to inspection by the City Police or other authorized City official during regular business hours. At least once per year, or as practicable as possible, the City will conduct compliance checks by engaging, with the written consent of their parents or guardians, minors over the age of 15 years but less than 18 years to enter the licensed premises to attempt to purchase tobacco products. Minors used for the purpose of compliance checks will be supervised by City designated law enforcement officers or other designated City personnel. Minors used for compliance checks will not be guilty of unlawful possession of tobacco products when those items are obtained as a part of the compliance check. No minor used in compliance checks shall attempt to use a false identification misrepresenting the minor's age, and all minors lawfully engaged in a compliance check shall truthfully answer all questions about the minor's age asked by the licensee or his or her employee and shall produce any identification, if any exists, for which he or she is asked. Nothing in this Subsection (14) of Section 9-115 prohibits compliance checks authorized by State or Federal laws for educational, research, information, or training purposes, or as required for the enforcement of a particular State or Federal law.
(15)
Exceptions and defenses.
a.
Nothing in this article prevents the providing of tobacco products
to an individual under twenty-one years of age as part of a lawfully
recognized religious, spiritual, or cultural ceremony.
b.
It is an affirmative defense to the violation of this article
for a person to have reasonably relied on proof of age as described
by State law.
(16)
Severability. If any section or provision of this article is
held invalid, such invalidity does not affect other sections or provisions
which can be given force and effect without the invalidated section
or provision.
[Ord. No. 1059, 3-16-2017; amended 6-14-2022 by Ord. No. 1135]
(a)
Violations by Seller.
(1)
Nothing in this section prohibits the City from seeking prosecution as an infraction, as defined under N.D.C.C. § 12.1-32-01(7), for any alleged violation of this ordinance, except for violations of subsections 2, 14, and 15 of Section 9-115.
a.
Notice. A person violating this article, and issued a citation under Section 9-115 above, may be issued, either personally or by mail, a citation that sets forth the alleged violation and that informs the alleged violator of his or her right to a hearing on the matter. The citation shall provide notice that a hearing must be requested pursuant to the rules of Williston Municipal Court and that hearing rights shall be terminated if a hearing is not promptly requested. The citation will provide information on how and where a hearing may be requested, including a contact address and phone number.
b.
Hearings. Upon issuance of a citation, a person accused of violating
this article may request in writing a hearing on the matter. Hearing
requests must be made pursuant to the rules of Williston Municipal
Court. The Williston Municipal Judge, who presides over the Williston
Municipal Court, shall serve as the hearing officer. Each violation,
and every day in which a violation occurs or continues, shall constitute
a separate offense.
(b)
Administrative violations and suspension of authority to sell tobacco
products.
(1)
The authority granted under this article shall be affected or suspended by the City for violation of Section 9-115, or for a violation of any other provisions of this article, or any City ordinance or State law regulating the sale of tobacco products, as follows:
a.
First offense: Mandatory $100 administrative fee assessed to
the tobacco sale license holder under whom the sale took place, and
warning that authority to sell shall be suspended if a subsequent
offense occurs within 12 months. Furthermore, the manager and/or supervisor
shall undergo mandatory training at licensee's expense, regarding
sales to minors which training shall be specified by the City.
b.
Second offense within 12 months: Mandatory one day suspension
of authority to sell, mandatory $150 administrative fee, and mandatory
training at licensee's expense of all employees handling tobacco
products.
c.
Third offense within 12 months: Minimum seven day suspension
of authority to sell and mandatory $250 administrative fee.
d.
Fourth offense within 12 months: Minimum thirty-day suspension
of authority to sell and mandatory $250 administrative fee.
e.
If the city commission, or its authorized designees, make a
good cause factual finding that the violation constitutes egregious
conduct or behavior, then the commission, or its authorized designees,
may impose a penalty outside of the progressive suspension policy
in 9-117(b)(1)a-d, which may include, but is not limited to, the revocation
of a license to sell tobacco products and a fine not to exceed $1,000.
(2)
The above penalties shall be automatically imposed by the City
Finance Director or the Licensing Committee upon receiving a copy
of the judgment of conviction for sales to a minor. The licensee has
the right to appeal such penalty to the City Commission.
(3)
For purpose of these administrative penalties for sales to minors,
the business where a vending machine is located in an area other than
one restricted to persons 21 and older, shall be considered the seller/licensee.
Where a vending machine is located in an area restricted to persons
21 and older, administrative penalties shall not apply.
