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HomeMy WebLinkAbout08735ORDINANCE NO. 8735 AN ORDINANCE AMENDING CHAPTER 1 OF TITLE XI OF THE PUEBLO MUNICIPAL CODE RELATING TO THE SALE, POSSESSION, AND USE OF TOBACCO PRODUCTS BY MINORS AND PROVIDING PENALTIES THEREFOR BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: (brackets indicate matter being deleted, underscoring indicates new matter being added) SECTION 1. Section 11-1-209 of Chapter 1, Title 11, Pueblo Municipal Code, as amended, is hereby amended to read as follows: Sec. 11-1-209. Sale, possession and use of tobacco products. (a) Definitions. As used in this Section: (1) Minor means any natural person who is under eighteen (18) years of age. [ (2) Tobacco product meansany substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, ] : chewing tobacco, smokeless tobacco and dipping tobacco. a. Any product that contains nicotine or tobacco or is derived from tobacco and is intended to be ingested, inhaled, smoked, placed in the oral or nasal cavities, or applied to the skin of an individual, including but not limited to, cigarettes, cigars, cigarillos, kreteks, bidis, hookah, and pipes; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff and snuff flour, snus, plug and twist, fine-cut, and other chewing or dipping tobacco; shorts, refuse scraps, clippings, cuttings, and seepings of tobacco; and any other kinds and forms of tobacco, prepared in such manner as to be suitable for both chewing or for smoking in a cigarette, pipe, or otherwise, or both for chewing and smoking. Tobacco product also includes cloves and any other plant matter or product that is packaged for smoking; or b. Any electronic device or any component thereof that can be used to deliver nicotine to the person inhaling from the device, including but not limited to, an electronic cigarette, cigar, cigarillo, hookah, pipe, or nicotine vaporizer; and nicotine or other chemical liquids, extracts, and oils intended to be used therein. c. Notwithstanding any provision of paragraph a. of this subsection (2) to the contrary, "tobacco product" does not mean any product that the food and drug administration of the United States department of health and human services has approved as a tobacco use cessation product. (b) It shall be unlawful and a Class 2 municipal offense for any minor to possess, consume or use any tobacco product. (c) It shall be unlawful and a Class 2 municipal offense for any minor to purchase, obtain or attempt to purchase or obtain any tobacco product by misrepresentation of age or by any other method. (d) It shall be rebuttably presumed that the substance within a package or container is a tobacco product if the package or container has affixed to it a label which identifies the package or container as containing a tobacco product. (e) It shall be unlawful and a Class 2 municipal offense for any person to knowingly furnish to any minor, by gift, sale or any other means, any tobacco product. It shall be an affirmative defense to a prosecution under this subsection that the person furnishing the tobacco product was presented with and reasonably relied upon a document which identified the minor receiving the tobacco product as being eighteen (18) years of age of older. (f) No person younger than eighteen (18) years of age while employed at any retail or wholesale commercial enterprise shall sell, stock, retrieve or otherwise handle tobacco products in connection with such minor's assigned job duties or otherwise. (g) Notwithstanding the provisions of this Section, it shall be unlawful and a Class 2 municipal offense for a person under eighteen (18) years of age , when such premises is open for to be admitted to or be on the premises of business, a retail tobacco store as defined in Section 7-6-3(15) of this Code [] or a Non-Cigarette when the retail tobacco store is open for business Tobacco Product Retail Location as defined in Section 9-15-2(8) of this Code utilized primarily for the sale of non-cigarette tobacco products and accessories and in which the sale of other products is merely incidental. . . . SECTION 2. Any person who violates Section 11-1-209 of the Pueblo Municipal Code as amended hereby or violates this Ordinance as related thereto, shall be guilty of a municipal offense and shall be punished as provided by Section 11-1-209(b-c) and Section 11-1-103(c), Pueblo Municipal Code, as amended. SECTION 3. The officers of the City are directed and authorized to perform any and all acts consistent with the intent of this Ordinance and to effectuate the policies and procedures described herein. SECTION 4. This Ordinance shall become effective upon final passage and approval. INTRODUCED: April 28, 2014 BY: Ed Brown COUNCIL PERSON PASSED AND APPROVED: May 12, 2014 City Clerk’s Office Item # R-4 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: April 28, 2014 TO: President Sandra K. Daff and Members of City Council CC: Sam Azad, City Manager VIA: Gina Dutcher, City Clerk FROM: Chief Luis Velez, Police Department Daniel C. Kogovsek, City Attorney, Law Department SUBJECT: AN ORDINANCE AMENDING CHAPTER 1 OF TITLE XI OF THE PUEBLO MUNICIPAL CODE RELATING TO THE SALE, POSSESSION, AND USE OF TOBACCO PRODUCTS BY MINORS AND PROVIDING PENALTIES THEREFOR SUMMARY: Attached is a revised Ordinance relating to the offense of the sale, possession, and use of tobacco products. PREVIOUS COUNCIL ACTION: On November, 26, 2012 City Council passed and approved Ordinance No. 8533 which enacted Chapter 15 of Title IX requiring all non-cigarette tobacco product retailers to be licensed and amended Section 11-1-209 to make it unlawful for minors, while employed, to sell, stock, retrieve, or otherwise handle tobacco products in connection with such minor’s assigned job duties or otherwise. BACKGROUND: The Pueblo Municipal Code does not currently provide for a violation of Title XI, Chapter 1, Section 209 (Sale, Possession, and Use of Tobacco Products), when a minor has purchased, attempted to purchase, has possession of, or has used or consumed non-traditional tobacco or nicotine products such as electronic cigarettes (or e-cigarettes) and nicotine vaporizers. Presently, the definition of “tobacco products” in the Pueblo Municipal Code includes “any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, smokeless tobacco and dipping tobacco.” This definition fails to encompass electronic cigarettes, nicotine vaporizers, and nicotine or other chemical liquids due to its inclusion of only substances that contain “tobacco leaf.” Electronic cigarettes and other nicotine vaporizers operate by turning a liquid composed of nicotine or other chemicals into a vapor that can be inhaled. Police and School Resource Officers frequently encounter minors using or possessing electronic cigarettes and other non-traditional tobacco or smoking products. The proposed Ordinance expands the definition of “tobacco products” to create a violation of the Ordinance if a minor purchases, attempts to purchase, possesses, or uses an electronic cigarette, nicotine vaporizer, any component thereof, or any other non-traditional tobacco or smoking product. Police also frequently encounter minors present at hookah bars, lounges, cafes, and establishments of a similar nature. The proposed Ordinance also incorporates a reference to Sections 9-15-2(8), non-cigarette tobacco product retail location, making it also unlawful for minors to be present on the premises of retail locations that are utilized primarily for the sale of non-cigarette tobacco products and accessories and in which the sale of other products is merely incidental. These revisions will allow Police and School Resource Officers to better protect the health and safety of the citizens of Pueblo. FINANCIAL IMPLICATIONS: There are no financial implications. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Members of the public, business owners, and the Police Department are the primary stakeholders affected by the proposed Ordinance revision. ALTERNATIVES: Council can refuse to approve the proposed Ordinance. If the revised Ordinance is not approved, the language of the Ordinance will remain as it is currently. Therefore, it will be lawful for minors to purchase, possess, and use electronic cigarettes, vaporizers, and other non- traditional tobacco products. It will also be lawful for minors to be present in locations whose primary purpose is to sell non-cigarette tobacco products. RECOMMENDATION: The Police and Law Departments recommend approval of this Ordinance. PROPOSED MOTION: This Ordinance will be placed on the April 28, 2014, Consent Agenda for First Presentation, and on the May 12, 2014, Regular Agenda for Final Presentation and Public Hearing. Attachments: None.