[HISTORY: Adopted by the Board of Health of the Borough of
Fanwood 3-5-2020 by Ord. No. 20-01-01 (Board of Health). Amendments
noted where applicable.]
The purpose of this chapter is to protect the public's
health and general welfare by licensing and regulating establishments
that sell electronic smoking devices.
As used in this chapter, the following words shall mean:
Any sole proprietorship, partnership, joint venture, corporation,
association, or other entity formed for profit-making purposes.
A distinguishable flavor, taste, or aroma, including but
not limited to, any fruit, candy, chocolate, vanilla, honey, cocoa,
wintergreen, dessert, alcoholic beverage, herb or spice flavoring,
that is imparted prior to or during consumption by an electronic smoking
device, tobacco product, or other related product, including electronic
liquid, or any smoke, aerosol, or vapor emanating from that device
or product. An electronic smoking device, any cartridge, or other
component of the device or other related product, including liquid
nicotine, shall be deemed to have a characterizing flavor if the device,
cartridge, component, or related product is advertised or marketed
as having or producing any such distinguishable flavor, taste or aroma.
No tobacco product shall be determined to have a characterizing flavor
solely because of the use of additives or flavorings or the provision
of ingredient information.
Any software or assembly of materials intended or reasonably
expected to alter or affect the electronic smoking device's performance,
composition, characteristics, and ingredients.
Perceivable by either the sense of smell or taste.
Ingredients, liquids, gels, waxes and powders, including
but not limited to those which may contain nicotine and which may
be aerosolized or vaporized when using an electronic smoking device.
A device that can be used to deliver aerosolized or vaporized
nicotine to the person inhaling from the device, including, but not
limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah.
Electronic smoking device includes any component, part, or accessory
of such a device, whether or not sold separately, and includes any
substance intended to be aerosolized or vaporized during the use of
the device. Electronic smoking device 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.
Any person who is employed or retained as an independent
contractor by any employer in consideration for direct or indirect
monetary wages or profit, or any person who volunteers his or her
services for an employer.
Any business or nonprofit entity that retains the service
of one or more employees.
The Borough of Fanwood Health Officer or his/her authorized
designee.
A temporary or permanent business operated from a truck,
a cart, other vehicle, hand-carried portable container or device,
or mobile platform or unit.
A calendar year commencing on January 1 and ending on December
31.
Any solution containing nicotine, which is designed or sold
for use with an electronic smoking device.
A bottle or other container of a liquid, wax or gel, or other
substance containing nicotine, where the liquid or other contained
substance is sold, marketed, or intended for use in an electronic
smoking device. Liquid nicotine container does not include a liquid
or other substance containing nicotine in a cartridge that is sold,
marketed or intended for use in an electronic smoking device, provided
that such cartridge is prefilled and sealed by the manufacturer, with
the seal remaining permanently intact through retail purchase and
use; is only disposable and is not refillable; and is not intended
to be opened by the consumer.
Any person, including any repacker and/or relabeler, who
compounds, modifies, mixes, manufactures, fabricates, assembles, processes,
labels, repacks, relabels or imports electronic smoking devices or
electronic liquid.
Any entity that meets Internal Revenue Service (IRS) Internal
Revenue Code § 501(c)(3) as well as any other entity created
for charitable, religious, philanthropic, educational, political,
social or similar purposes, the net proceeds of which are committed
to the promotion of the objectives or purposes of the entity and not
to private gain.
An individual, partnership, cooperative, association, corporation,
personal representative, receiver, trustee, assignee or any other
legal entity.
Any establishment that solely sells, distributes, gives,
offers or manufactures electronic smoking devices, components or parts,
electronic liquid, and/or liquid nicotine.
Every delivery of electronic smoking devices, whether the
same is by direct sale or the solicitation or acceptance of an order,
including the exchange, barter, keeping and exposing for sale, delivering
for value, peddling and possession with intent to sell, distribute,
or give.
Inhaling, exhaling, burning, or carrying any lighted or heated
cigar, cigarette, or pipe, or any other lighted or heated tobacco,
nicotine, or plant product intended for inhalation, including hookah
and marijuana, whether natural or synthetic. Smoking also includes
the use of an electronic smoking device.
Any product that is made from or derived from tobacco, or
that contains nicotine, that 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, but
not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco,
snuff, or snus. Tobacco product also means electronic smoking devices
and any component or accessory used in the consumption of a tobacco
product, such as filters, rolling papers, pipes, and substances used
in electronic smoking devices, whether or not they contain nicotine.
Tobacco product does not include drugs, devices, or combination products
authorized for sale by the U.S. Food and Drug Administration and defined
in the Federal Food, Drug and Cosmetic Act.
A.
Only retail electronic smoking device establishments licensed by
the Borough of Fanwood Board of Health shall sell electronic smoking
devices, components or parts, electronic liquid, and/or liquid nicotine.
B.
It shall be unlawful for any business within the Borough of Fanwood
to manufacture electronic smoking devices, components or parts, electronic
liquid, and or liquid nicotine.
C.
It shall be unlawful for a business which holds a retail food establishment
license issued by the Borough of Fanwood Board of Health, a license
for the retail sale of motor fuel issued by the State of New Jersey,
and/or a liquor license issued by the State of New Jersey to sell
electronic smoking devices, components or parts, electronic liquid,
and/or liquid nicotine.
D.
A business which holds a retail food establishment license issued
by the Borough of Fanwood Board of Health, a license for the retail
sale of motor fuel issued by the State of New Jersey, and/or a liquor
license issued by the State of New Jersey and which sells and/or manufactures
electronic smoking devices, components or parts, electronic liquid,
and/or liquid nicotine shall comply with this section within 60 days
of the passage of this chapter.
A.
The entry of individuals under the age of 21 into any portion of
a retail electronic smoking device establishment is prohibited.
B.
It shall be the duty of a retail electronic smoking device establishment
licensee and his/her employees to verify that any individual entering
any portion of the establishment is aged 21 years and older by requesting
and examining government-issued photographic identification immediately
upon entry of such individual.
C.
No individual under the age of 21 shall be employed by a retail electronic
smoking device establishment.
No person shall sell, distribute or give electronic smoking
devices, components or parts, electronic liquid, and/or liquid nicotine
to any person under the age of 21 years. Each retailer selling or
distributing electronic smoking devices shall verify the age of the
purchaser by means of valid government-issued photographic identification
that contains date of birth.
No retail electronic smoking device establishment, not presently
in operation at the time of the adoption of the chapter, shall be
located within 500 feet of any public recreational field or park,
public or private elementary or secondary school.
A.
No person shall sell, distribute or give electronic smoking devices,
components or parts, electronic liquid, and/or liquid nicotine in
the Borough of Fanwood unless an employee of the establishment controls
the sale of such product through direct, face-to-face exchange between
the retailer and the consumer. Self-service displays and vending machines
for the sale of electronic smoking devices, components or parts, electronic
liquid, and/or liquid nicotine shall be prohibited.
B.
No retail electronic smoking device establishment shall allow an
employee to sell, distribute or give electronic smoking devices, components
or parts, electronic liquid, and/or liquid nicotine until the employee
has confirmed he/she has read this chapter and state laws pertaining
to the sale of electronic smoking devices by signing a form promulgated
by the Department of Health, confirming the same. Forms shall be submitted
to the Department of Health and a copy of the form shall be kept on
file at the retail electronic smoking device establishment and made
immediately available at the request of the Health Officer. All retail
electronic smoking device establishments shall comply with this provision
60 days after adoption of this chapter. It shall be the duty of the
licensee to ensure that all new employees comply with this section
within one week of hire.
C.
No retail electronic smoking device establishment shall distribute,
or cause to be distributed, any samples or permit sampling of electronic
smoking devices, components or parts, electronic liquid, and/or liquid
nicotine.
D.
No retail electronic smoking device establishment shall use any device
within its establishment to mask or conceal any characterizing flavor
or smell of any electronic liquid and/or tobacco product.
E.
A retailer of electronic liquid containers must comply with provisions
of N.J.S.A. 2A:170-51.9 et. seq., governing child resistant containers,
as may from time to time be amended or supplemented.
A.
Signage shall be conspicuously posted on entry doors to the establishments
which state: "Entry of persons under the age of 21 is prohibited.
Government-issued photographic identification must be presented immediately
upon entry."
B.
Signage must be conspicuously posted at the point of display and
at the point of sale which states:
(1)
"A person who sells or offers to sell tobacco products or electronic
smoking or vapor devices, components, cartridges or related products
to a person less than 21 years of age shall pay a penalty up to $2,000
and may be subject to a license suspension or revocation. Proof of
age may be required for purchase. Those persons or establishments
in violation are subject to prosecution."
(2)
"Smoking, sampling or using tobacco products or electronic smoking
or vapor devices inside this place of business is prohibited by NJ
State Law. Those establishments or individuals in violation are subject
to prosecution."
A.
No person shall conduct, maintain, or operate a retail electronic
smoking device establishment without first submitting an application
for licensure on forms promulgated by the Borough of Fanwood Department
of Health.
B.
Fees in accordance with the following schedule shall be paid annually:
Retail electronic smoking device establishment license: $1,000.
C.
Licenses issued under the provisions of this chapter shall expire
annually on December 31 of the year in which the license was issued.
D.
Applications for license renewal shall be submitted to the Borough
of Fanwood Department of Health no less than 60 days prior to expiration.
E.
At the time of the initial application and any subsequent renewals,
the applicant or the licensee shall:
(1)
Disclose if they are also a manufacturer or distributor of electronic
smoking devices and if that part of their business is conducted or
takes place at the retail electronic smoking device establishment
or another location(s).
(2)
Provide contact information for the manufacturer or distributor or
other business(es) from which the electronic smoking devices, components
or parts, electronic liquid, and/or liquid nicotine are purchased.
F.
Each license shall be posted in a conspicuous location where it may
be readily observed at eye level by all patrons before or immediately
upon entering the establishment. No portion of the license shall be
obstructed from view during display.
G.
It shall be unlawful for any person to erase, cancel, deface, or
alter a license once it has been issued by the Borough of Fanwood
Department of Health.
H.
The owner or person in charge of an establishment shall permit any
Borough official, inspector or police officer who has presented proper
identification to fully examine any license issued under this chapter.
I.
No licenses shall be issued to itinerant establishments, transient
merchants, or peddlers.
J.
Licenses and/or permits are not transferable and are not prorated.
Any establishment that changes ownership must submit a new application
and receive a new license and/or permit prior to the opening of the
establishment.
A.
The Health Officer or his/her authorized agent shall have the right
to inspect any retail electronic smoking device establishment as often
as he/she deems it necessary.
B.
Any duly appointed Borough police officer shall be permitted to enter
and inspect the premises for compliance with this chapter.
C.
All parts of the establishment shall be made accessible to the Health
Officer or his/her designee and any duly appointed Borough police
officer.
D.
It shall be unlawful for any licensee or his/her employee to hinder,
impede, or fail to allow the Health Officer or his/her designee or
any duly appointed Borough police officer needing to perform an inspection,
access to all areas of the establishment.
A.
Licenses issued under this section may be revoked or suspended by
the Health Officer or his/her designee, pending a formal hearing before
the Borough of Fanwood Board of Health, for the following causes:
(1)
Fraud, misrepresentation or false statement in the application for
the establishment license.
(2)
Fraud, misrepresentation or false statement made while operating
the licensed business in the Borough.
(3)
Conducting the licensed business within the Borough in an unlawful
manner or in such a manner as to constitute a menace to the health,
safety, or general welfare of the public.
(4)
An existing or threatened menace to the public health as determined
by the Health Officer.
(5)
The owner and/or operator or any employee refuses to permit, hinders,
or obstructs, the Health Officer or his/her designee or any duly authorized
Borough police officer to inspect the premises or the operations therein.
B.
A person, firm, corporation, or other entity whose license has been
revoked shall close the establishment and request all patrons to vacate
the premises.
C.
The licensee shall be entitled to a hearing before the Borough of
Fanwood Board of Health within a reasonable time, which is not to
exceed 15 days, for the purpose of seeking reinstatement of a suspended
or revoked license. Written notice of the time and place of such a
hearing shall be served upon the licensee by the Health Officer at
least three days prior to the date set for such hearing. Such notice
shall contain a brief statement of the grounds to be relied upon for
revoking, cancelling, or suspending such license. Notice may be given
either by personal delivery thereof to the person to be notified or
be deposited in the United States Post Office in a sealed envelope,
postage prepaid, addressed to such person to be notified at the business
address appearing upon such license by simultaneous regular mail and
certified mail, return receipt requested.
D.
At the hearing before the Borough of Fanwood Board of Health, the
licensee shall have an opportunity to answer and may thereafter be
heard, and upon due consideration and deliberation by the Board, the
complaint may be dismissed, or if the Board concludes that the charges
have been sustained and substantiated, it may deny reinstatement of
the license and stipulate the conditions required for reinstatement
of the license.
E.
If any such license shall have been revoked, neither the holder thereof
nor any person acting for him, directly or indirectly, shall be entitled
to another license to carry on the same business within the Borough,
unless the application for such license shall be approved by the Board
of Health.
This chapter shall be enforced by the Borough of Fanwood Board
of Health and any duly appointed Borough police officer.
A.
Unless otherwise provided by law, statute, or ordinance, any person(s)
who is found to be in violation of the provisions of this section
shall, upon conviction thereof, pay a fine of $1,000 for the first
violation, $1,500 for the second violation, and $2,000 for the third
violation and each subsequent violation. Each violation, and every
day in which a violation occurs, shall constitute a separate violation.
No fines shall be issued for 60 days after publication of this chapter.
B.
These penalties are in addition to any penalties that may be imposed,
including but not limited to penalties imposed by N.J.S.A. 2C33-13.1
et seq.
