[1]
Editor's Note: This ordinance also retitled the article from
"Sale of Tobacco and Tobacco Products" to "Sale of Tobacco, Tobacco
Products, Alternative Nicotine or Electronic Cigarettes."
As used in this article, the following terms shall have the
meanings indicated:
A business establishment in which less than 50% of the revenues
of the establishment are generated from the sale of tobacco, alternative
nicotine products, e-cigarettes or vaping devices and smoking devices.
A product or device not consisting of or containing tobacco
that provides for the ingestion into the body of nicotine, whether
by chewing, smoking, absorbing, dissolving, inhaling, snorting, sniffing,
or by any other means. Alternative nicotine products exclude cigarettes,
smokeless tobacco, or other tobacco products as these terms are defined
herein and any product approved by the United States Food and Drug
Administration as a non-tobacco product for sale as a tobacco cessation
product, as a tobacco dependence product, or for other medical purposes,
and is being marketed and sold solely for that approved purpose.
Any device that employs a battery or other mechanism to heat
a solution or substance to produce a vapor or aerosol intended for
inhalation;
Any cartridge or container of a solution or substance intended
to be used with or in the device or to refill the device; or
Any solution or substance, whether or not it contains nicotine
intended for use in the device.
"E-cigarette or vaping device" includes, but is not limited to, any electronic smoking device, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah pipe, vape pen, product vaporizer, atomizer or similar product or device, any components or parts that can be used to build the product or device, and any component, part, or accessory of a device used during the operation of the device, even if the part or accessory was sold separately. "Electronic cigarette" does not include: cigarettes as defined in Section 1 of the Cigarette Tax Act; tobacco product and alternative nicotine product as defined in this section; any product approved by the United States Food and Drug Administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and is being marketed and sold solely for that approved purpose; any asthma inhaler prescribed by a physician for that condition and is being marketed and sold solely for that approved purpose.
Any form of the chemical nicotine, including any salt or
complex, regardless of whether the chemical is naturally or synthetically
derived.
A business in which 50% or more of the revenues of the establishment
are generated from the sale of tobacco, tobacco products, alternative
nicotine products, e-cigarettes or tobacco accessories. The sale of
other products is incidental to the sale of tobacco, alternative nicotine
products, e-cigarettes or tobacco accessories.
Pipes, hookahs or other devices that can be used to smoke
tobacco or cannabis. Smoking devices do not include cigarettes or
cigars.
Any product containing or made from tobacco that is intended
for human consumption, whether smoked, heated, chewed, absorbed, dissolved,
inhaled, snorted, sniffed, or ingested by any other means, including,
but not limited to, cigarettes, cigars, little cigars, chewing tobacco,
pipe tobacco, snuff, snus, and any other smokeless tobacco product
which contains tobacco that is finely cut, ground, powdered, or leaf
and intended to be placed in the oral cavity. Tobacco includes any
component, part, or accessory of a tobacco product, whether or not
sold separately. Tobacco does not include: an alternative nicotine
product as defined in this section; or any product that has been approved
by the United States Food and Drug Administration for sale as a tobacco
cessation product, as a tobacco dependence product, or for other medical
purposes, and is being marketed and sold solely for that approved
purpose.
Any mechanical, electric or electronic self-service device
operated by insertion of money, tokens or other form of consideration
and dispenses electronic cigarettes, tobacco products and/or tobacco
accessories.
A.
No person shall sell, solicit, receive an order for, keep or offer
for sale, or keep with the intention of selling any tobacco, alternative
nicotine product, e-cigarette, vaping device or smoking device without
first obtaining a tobacco license from the Village. A separate tobacco
license shall be required for each location where tobacco, tobacco
products, alternative nicotine products, electronic cigarettes, vaping
devices or smoking devices are sold.
B.
Tobacco license classification. Tobacco licenses shall have two classifications.
It shall be at the sole discretion of the Village Manager to determine
the classification licenses to issue based on the operation of the
business.
C.
It shall be the responsibility of each licensee to be informed regarding
all laws, federal, state or local, applicable to tobacco, tobacco
products, alternative nicotine products, vapor products or e-cigarettes,
vaping devices or smoking device retailing.
(1)
A license issued contrary to this article, contrary to any other
law, or on the basis of false or misleading information supplied by
a proprietor shall be revoked pursuant to the applicable provisions
of this article.
(2)
Nothing in this article shall be construed to grant any person obtaining
and maintaining a(n) tobacco license any status or right other than
a limited, conditional privilege to act as a tobacco, alternative
nicotine product, e-cigarette, vapor device or smoking device retailer
at the location identified on the face of the license. Nothing in
this article shall be construed to vest in any person obtaining and
maintaining a tobacco license any status or right to act as a tobacco,
alternative nicotine product, e-cigarette, vapor device or smoking
device retailer in contravention of any applicable law.
D.
Any licensee who has been convicted of a felony under any federal or state law, any misdemeanor in which tobacco, alternative nicotine products, vapor products or electronic smoking devices were involved or any violation listed in § 83-19F below shall notify the mayor of such conviction. Such notification shall be made within 30 days after the sentencing for the conviction.
E.
It shall be unlawful for any licensee or any employee or agent of
any such licensee to sell, deliver, or distribute any product which
contains Tetrahydrocannabinol (THC) or any synthetic cannabinoid.
A maximum of five Class B tobacco licenses shall be issued and
in force at any one time. Any establishment already in possession
of a Village tobacco license at the time of the adoption of this article
shall be grandfathered with the ability to renew their existing licenses.
This limitation shall only prohibit the issuance of new licenses until
there are fewer than four Class B licenses.
Applications for a tobacco license shall be made to the Village
Manager and shall be on a form prescribed by the Village. The application
shall be signed by the applicant if an individual or by a duly authorized
agent of the applicant if the applicant is not a natural person. All
information and statements made in the application shall be made and
verified by affidavit. The Village President and Village Manager shall
review all applications, and shall exercise their sole, exclusive
discretion in considering whether to approve all licenses defined
in this article. All applications shall require the approval of both
the Village President and Village Manger. If the application is not
approved by either the Village Manager or the Villager President,
the application for a license shall be denied. The application shall
contain the following information:
A.
The name, address, date of birth, telephone number, and social security
number of the applicant if the applicant is an individual; or the
name, address, date of birth, telephone number, and social security
number of:
B.
The location and description of the premises or place of business
for which the license is being applied for.
C.
A statement whether applicant has made a similar application for
a license on any premises other than the premises described in the
application.
D.
A statement that the applicant or any manager has never been convicted
of a felony or otherwise disqualified to receive a license by reason
of any matter or thing contained in the laws of Illinois or the ordinances
of the Village.
E.
A statement as to whether any previous license issued to applicant
by any state or other governmental unit or agency has been suspended
or revoked and the reasons therefor.
F.
A statement that the applicant will not violate any of the laws of
the state of Illinois or the provisions of this article in the conduct
of business at the location for which the license is proposed.
G.
A background check is required for all new tobacco licenses. This
is done through fingerprinting. The following individuals are required
to be fingerprinted:
(1)
All officers, managers, directors, partners, or persons holding directly,
beneficially or through any form or indirect or concealed ownership
or control, more than 5% of the stock or ownership interest. The Village
Manager may, in his or her discretion, require any applicant for a
renewal of a tobacco license to be fingerprinted.
(2)
All such fingerprinting shall be done by the Village's designated
vendor. Said fingerprints shall be submitted to the appropriate state
and/or federal agencies for processing. The cost of fingerprinting
shall be paid by the applicant to the designated vendor.
No license shall be issued or renewed to an applicant:
A.
Who is indebted to the Village or other governmental entity for payment
of any fees, charges, bills or taxes which he is obligated to pay
but has remained unpaid for more than 45 days.
B.
Who has been convicted of a felony under any federal or state law,
or any misdemeanor involving theft or dishonesty.
C.
Whose license under this article, or any similar regulatory ordinance
or statute, has been revoked for cause.
D.
Who provided false or misleading information as part of their license
application.
E.
Who at the time of application for renewal of any license issued
hereunder would not be eligible for such license upon a first application.
F.
Who within one year of application for a tobacco license has been
convicted of, plead guilty to, or been placed on supervision for any
tobacco license related offense.
G.
Whose place of business is conducted by a manager or assistant manager
or agent, unless said manager, assistant manager or agent possesses
the same qualifications required by the licensee.
H.
Who does not own the premises for which a license is sought or does
not have a lease thereon for the full period for which the license
is issued.
A.
All tobacco licenses shall be for a term of one year and shall terminate
on the 30th day of April following the issuance of the license, except
that any license issued for a portion of the year shall have a term
of less than one year and the term thereof shall terminate on the
30th day of April following the issuance of the license.
B.
No licensee may assign, sell or transfer their license to any other
person, or entity, even if such other person intends to conduct the
same business, occupation or activity as the licensee at the location
used by the licensee. The sale of a business by a license holder will
immediately terminate the tobacco license.
C.
Change of ownership. Any changes in partnerships, officers, directors,
persons holding directly, beneficially or through any form of indirect
or concealed ownership or control, more than 5% of the stock or ownership
interest of establishments licensed under this chapter, shall be reported
in writing to Village Clerk within 10 days of the change.
A.
No license issued pursuant to this article shall be assignable or
transferable by the licensee or by operation of law or otherwise.
B.
A license under this article is effective for a period not to exceed one year after issuance unless sooner suspended or revoked as provided for in § 83-27.1 of this article, and shall not constitute property, nor shall it be subject to attachment, garnishment or execution, nor shall it be alienable or transferable, voluntarily or involuntarily, or subject to being encumbered or hypothecated. Such license shall cease upon the death of the licensee or, in the case of a corporation, limited-liability company or partnership, its dissolution or bankruptcy, and shall not descend by the laws of testate or intestate devolution; provided that executors or administrators of the estate may continue to operate under the existing tobacco license as set forth in this article, under the order of the appropriate court, and may exercise the privileges of the deceased or insolvent or bankrupt licensee after the death of such decedent, or such insolvency or bankruptcy, until the expiration of such license, but not longer than six months after the death, bankruptcy or insolvency of such licensee.
C.
Any sale, transfer, or assignment of more than 10% of the shares
of a corporation or more than 10% of an interest in a partnership
or other business entity, shall terminate the existing tobacco license,
and require the business to submit an application and satisfy all
of the requirements for new applicants.
A.
No Class B tobacco license shall be issued within 1,000 feet of any
school, child-care facility, public park or other building used exclusively
for educational or recreational programs for persons under the age
of 21 years. For purposes of this section, required separation distance
shall be measured from the property line to nearest property line.
B.
No Class B tobacco license shall issue for any business on the same
property or within the same contiguous commercial center, as any business
that provides any type of educational or recreational programs or
services for persons under the age of 21.
C.
No Class B tobacco license shall issue for any location within 1,000
feet of any existing Class B tobacco license. Separation is required
to prevent overconcentration, which is defined as three or more of
these uses existing within 1,000-foot radius of the business. For
purposes of this section, required separation distance shall be measured
from property line to property line.
D.
Establishments in possession of a Village tobacco license at the
time of adoption of this article who do not meet the minimum separation
requirements shall be grandfathered in as legal nonconforming; any
changes such as ownership, location, or business type will require
an application for a new license.
A.
There is a $250 nonrefundable application fee for a tobacco license.
Every act or omission of whatsoever nature, constituting a violation
of any of the provisions of this chapter by any officer, director,
manager or other agent or employee of any licensee shall be deemed
and held to be the act of such licensee; and such licensee shall be
punishable in the same manner as if such act or omission had been
done or omitted by the licensee personally.
A.
No person shall sell or furnish tobacco, alternative nicotine products,
electronic cigarettes, vaping devices or smoking devices in any of
its forms to any person under 21 years of age.
B.
It shall be unlawful for any licensee, officer, agent, associate,
member, representative, or employee of such licensee to engage, employee,
or permit any person under 21 years of age to sell or furnish any
tobacco, alternative nicotine products, electronic cigarettes, vaping
devices or smoking devices in any form.
A.
No person under the age of 21 years shall possess or use tobacco,
alternative nicotine products, e-cigarettes, vaping devices, or smoking
devices in any form, in any public place or business. No person under
the age of 21 years shall misrepresent his or her identity or age,
or use false or altered identification, for the purpose purchasing
tobacco, alternative nicotine products, e-cigarettes, vaping devices,
or smoking devices in any form.
B.
Violations. Whenever a Village inspector or sheriff's deputy observes
a violation of this section, he or she may confiscate the tobacco
product for disposal and issue a violation notice to the person committing
the violation. The violation notice shall be signed by the inspector
or sheriff's deputy and shall include the following:
It shall be unlawful for any licensee to sell or offer for sale,
give away, deliver or to keep with the intention of selling, giving
away or delivering tobacco, alternative nicotine product, vapor products
or electronic smoking devices by use of a vending machine.
A.
Complaints alleging any violation of this article by a licensee for which the Village may suspend or revoke a license or impose a fine upon a licensee shall be brought in the name of the Village and adjudicated before an administrative hearing officer in the manner set forth in Article III of Chapter 1 of this code. The administrative hearing officer may impose a fine and suspend a license for any period up to 30 days or revoke for cause any license issued under this chapter if he or she determines that the licensee has violated any of the following provisions:
(1)
The licensee has violated any law of the state, any ordinance
of the county, or any ordinance of the Village, which affected the
public health, welfare and safety and which violation occurred as
part of the operation of the licensee's business or upon the licensed
premises or adjacent premises.
(2)
The licensee has violated any of the provisions of this chapter
or any federal or state law pertaining to the sale of tobacco, tobacco
products, alternative nicotine product, electronic cigarette.
(3)
The licensee is more than 45 days delinquent in the payment
of any debt to the Village.
C.
Each day on which a violation continues shall constitute a separate
violation. A fine for a violation of this article shall be not less
than $500 or more than $1,000 plus costs.
If the Village Manager or President should deny a Tobacco license
to an applicant, the Village Manager or President shall notify the
applicant in writing with the following information included in the
basis for the denial:
A.
A statement about the decision to deny the license.
B.
A list of convictions (if applicable) which are a basis for the denial
of the applicant's tobacco license.
C.
The relevant sections of this article for which are a basis for the
denial of applicant's tobacco license.
D.
Instructions on how to appeal the denial.
An applicant may request review by the Village Board of Trustees
of the denial of any license under this article, provided the applicant
timely files a request for review with the Village Clerk, within 14
days from the date of any such denial. The review shall take place
in an open session, and the Village Board shall adopt such rules that
it deems necessary. A 2/3 vote by the Board of Trustees shall be required
to reverse the denial of any license under this article.
Every year on or before April 15, each tobacco licensee shall
submit an application for license renewal. Along with the application,
the owner shall submit an affidavit verifying the following:
A.
The licensee does not have any outstanding violations or financial
obligations to the village.
C.
The licensee has not changed business names, location, or ownership;
and
D.
The licensee's owners and managers have not been charged with or
found guilty of a tobacco related offense; and
E.
The licensee owns the business location or has a lease through April
of the following year.
