HomeMy WebLinkAbout09782Substituted Copy:
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ORDINANCE NO. 9782
AN ORDINANCE AMENDING THE REGULATION OF
TOBACCO PRODUCTS SOLD AND CONSUMED IN THE
CITY OF PUEBLO; REQUIRING A TOBACCO RETAILER
LICENSE FOR THE SALE OF CIGARETTES;
PROHIBITING THE SALE AND FURNISHING OF
TOBACCO PRODUCTS TO PERSONS UNDER THE AGE
OF TWENTY-ONE YEARS; E LIMINATING CRIMINAL
PENALTIES FOR UNDERAGE POSSESSION OR PURCHASE
OF TOBACCO PRODUCTS; AND EXPANDING THE
CONSIDERATION PERIOD FOR PRESUMPTIVE
PENALTIES FOR VIOLATION OF THE RETAIL TOBACCO
REGULATIONS
WHEREAS, the City of Pueblo has promulgated rules and regulations governing
the sale and use of tobacco products within the City; and
WHEREAS, State and Federal Regulations governing the sale and use of tobacco
products have changed in recent years; NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: (brackets indicate
matter being deleted, underscoring indicates new matter being added)
SECTION 1.
Chapter 15, of Title IX of the Pueblo Municipal Code is amended to read as follows:
CHAPTER 15 - Licensing of \[Non-Cigarette\] Tobacco Retailers
Sec. 9-15-1. - Incorporation of general licensing provisions.
The provisions of Chapter 1, Title IX, Pueblo Municipal Code, shall apply to this
Chapter except where they are specifically modified by the provisions of this Chapter.
Sec. 9-15-2. - Definitions.
The following definitions shall apply throughout this Chapter:
(1) Cigar means any roll of tobacco other than a Cigarette wrapped
entirely or in part in tobacco or any other substance containing tobacco. For
purposes herein, cigar includes, but is not limited to tobacco products known or
labeled as a “cigar,” “cigarillo,” or “little cigar.”
(2) Cigarette means any product that contains tobacco or nicotine, that is intended
to be burned or heated under ordinary conditions of use, and consists of or contains:
a. Any roll of tobacco wrapped in paper or in any substance not containing
tobacco;
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b. Tobacco in any form that is functional in the product which, because of
its appearance, the type of tobacco used in the filler, or its packaging or labeling,
is likely to be offered to or purchased by consumers as a cigarette; or
c. Any roll of tobacco wrapped in any substance containing tobacco that,
because of its appearance, the type of tobacco used in the filler, or its packaging
and labeling, is likely to be offered to or purchased by Cigarette means any product
that contains tobacco or nicotine, that is intended to be burned or heated under
ordinary conditions of use, and consists of or contains:
a. Any roll of tobacco wrapped in paper or in any substance not
containing tobacco;
b. Tobacco in any form that is functional in the product which,
because of its appearance, the type of tobacco used in the filler, or its
packaging or labeling, is likely to be offered to or purchased by consumers
as a cigarette; or
c. Any roll of tobacco wrapped in any substance containing
tobacco that, because of its appearance, the type of tobacco used in the
filler, or its packaging and labeling, is likely to be offered to or purchased by
consumers as a cigarette described in Subparagraph (1)a. above.
d. The term includes all "roll-your-own," i.e., any tobacco that, because
of its appearance, type, packaging, or labeling, is suitable for use and likely to be
offered to or purchased by consumers as tobacco for making cigarettes. Cigarette
means any product that contains tobacco or nicotine, that is intended to be burned
or heated under ordinary conditions of use, and consists of or contains:
a. Any roll of tobacco wrapped in paper or in any substance not
containing tobacco;
b. Tobacco in any form that is functional in the product which,
because of its appearance, the type of tobacco used in the filler, or its
packaging or labeling, is likely to be offered to or purchased by consumers
as a cigarette; or
c. Any roll of tobacco wrapped in any substance containing
tobacco that, because of its appearance, the type of tobacco used in the
filler, or its packaging and labeling, is likely to be offered to or purchased by
consumers as a cigarette described in Subparagraph (1)a. above.
\[(2)\](3) City License Officer or License Officer means the City Clerk.
(4) Electronic Smoking Device means any product containing or
delivering nicotine intended for human consumption that can be used by an
individual to simulate smoking in the delivery of nicotine or any other substance,
even if marketed as nicotine-free, through inhalation from the product. Electronic
smoking device includes any refill, cartridge, or component part of a product,
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whether or not marketed or sold separately. Electronic smoking device does not
include any product that has been approved or certified by the United States Food
and Drug Administration for sale as a tobacco cessation product or for other
medically approved or certified purposes.
\[(3)\](5) Department means the City of Pueblo Police Department, and any
agency or person designated by the Mayor or Chief of Police to enforce or administer the
provisions of this Chapter.
\[(4)\](6) Licensee means the owner or holder of a \[non-cigarette\] tobacco
product retailer license.
\[(5)\](7) License refers to the \[non-cigarette\] tobacco product retailer license.
\[(6) Minor means any natural person who is under eighteen (18) years of age.\]
(8) Tobacco paraphernalia means all equipment, products and materials
of any kind which are used, intended for use or designed for use in ingesting,
inhaling, or otherwise introducing into the human body a tobacco product.
\[(7)\](9) \[Non-cigarette t\]Tobacco product includes:
\[(1)\](a) any product\[, other than a cigarette,\] that contains tobacco or
nicotine or is made or derived from tobacco that is intended for human
consumption or \[expected\]is likely to be consumed, ingested, smoked, inhaled,
placed in oral or nasal cavities, or applied to the skin of an individual, including
but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff,
or snus; or
\[(2)\](b) any \[electronic\]device that can be used to deliver nicotine or
tobacco to the person using the device, including but not limited to an electronic
cigarette, cigar, cigarillo or pipe; or
(c) any component, part, accessory or associated Tobacco
Paraphernalia of a Tobacco Product whether sold separately or not.
(d) The term \[non-cigarette\] tobacco product does not include
a. any product specifically approved by the United States Food
and Drug Administration for use in reducing, treating or eliminating nicotine
or tobacco dependence, or for other medical purposes, when such product
is being marketed and sold solely for such an approved purpose; or
b. any product that contains marijuana.
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\[(8)\](10) \[Non-cigarette tobacco product retail location or retail
location\]Licensed Premises means any premises where \[non-cigarette \]tobacco
products are sold or distributed to a consumer, including but not limited to hookah bar,
lounge or café, any grounds occupied by a retailer, any store, stand, outlet, vehicle, cart,
location, vending machine or structure where \[non-cigarette\]tobacco products are sold.
\[(9)\](11) \[Non-cigarette t\]Tobacco product retailer means any person who
sells, offers for sale, or \[does or \]offers to exchange for any form of consideration, a \[non-
cigarette\]tobacco product.
\[(10)\](12) \[Non-cigarette t\]Tobacco product retailing means the selling, offering
for sale or exchanging for any form of consideration a \[non-cigarette\]tobacco product.
\[(11)\](13) Self-service display means the open display or storage of \[non-
cigarette \]tobacco products in a manner that is physically accessible in any way to the
general public without the assistance of the \[retailer\]Licensee or employee of the
\[retailer\]Licensee \[and\]through a direct person-to-person transfer between the
\[purchaser\]Recipient and the \[retailer\]Licensee or employee of the \[retailer\]Licensee.
A vending machine is a form of self-service display.
\[(12)\](14) Vending machine shall mean any mechanical, electrical or electronic
self-service device which, upon insertion of money, tokens or any other form of payment,
dispenses product.
Sec. 9-15-3. - Time.
In calculating any period of time prescribed or allowed under this Chapter, the day
of the act or event from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included, even if it is a Saturday,
Sunday, or a legal holiday, unless the prescribed time period is ten (10) days or less.
Sec. 9-15-4. - License requirements and prohibitions.
(a) \[Non-cigarette t\]Tobacco product retailer license required.
(1) It shall be unlawful and a Class 1 municipal offense for any person
to act as a \[non-cigarette\]tobacco product retailer in the City of Pueblo unless he
or she has obtained a \[non-cigarette\]tobacco retailer license and maintains the
same in full force and effect pursuant to this Chapter for each location where \[non-
cigarette\]tobacco product retailing occurs.
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(2) No license may be issued to authorize \[non-cigarette\]tobacco product
retailing anywhere other than at a fixed location that is designated in the license
application and approved by the Licensing Officer. \[Non-cigarette t\]Tobacco
product retailing by persons anywhere other than a licensed premises or on
foot or from vehicles is \[prohibited\]a class 1 municipal offense.
(3) \[Non-cigarette t\]Tobacco retailing without a valid \[non-
cigarette\]tobacco product retailer license is a nuisance as a matter of law.
(b) Display of license. Each \[non-cigarette\]tobacco product retailer license shall
be prominently displayed in a publicly visible location at the licensed \[non-cigarette
tobacco product retail location\]premises.
(c) Other prohibitions.
(1) A \[non-cigarette tobacco product retail location\]licensed premises
may only have one (1) active license at one time. Every license is separate and
distinct and specific to a designated location. The license cannot be assigned,
delegated, sold, inherited, or otherwise transferred between persons or transferred
to a different location, except as provided in this Chapter. No licensee shall
exercise the privileges of any other license or delegate the privileges of its own
license.
(2) A person or entity may not apply for a license for \[a non-cigarette
tobacco product retail for \]a one-year period after that person or entity’s tobacco
retailer \[a\]license has been revoked.
(3) No license shall be issued to any person under \[eighteen
(18)\]twenty-one (21) years of age.
Sec. 9-15-5. - Conditions of \[non-cigarette\]tobacco product retailer license.
The following conditions shall apply to the licensee:
(1) Minimum age for persons handling and selling \[non-cigarette\]tobacco
products.
a. No person younger than eighteen (18) years of age while employed
at a \[non-cigarette tobacco product retail location\]licensed premises shall sell,
stock, retrieve or otherwise handle \[non-cigarette\]tobacco products.
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(2) Minimum Sales Age. Tobacco products shall not be given, sold,
distributed, dispensed, or offered for sale, to any person under twenty-one (21)
years of age.
\[(2)\](3) Prohibition of self-service displays. Licensees shall stock and display all
\[non-cigarette\]tobacco products in a manner so as to make all such products
inaccessible to customers without the assistance of a retail clerk, thereby requiring a
direct face-to-face exchange of the \[non-cigarette\]tobacco product from an employee of
the business to the customer; provided, however, this Paragraph (2) shall not apply to a
licensee who is a retail tobacco store as defined in Paragraph 7-6-3(15) of the Pueblo
Municipal Code and\[/or\] the licensee ensures that the premises are not open, or
accessible to persons under \[eighteen (18)\] twenty-one (21) years of age.
\[(3)\](4) Requirements of positive identification. No person engaged in \[non-
cigarette\]tobacco product retailing shall sell or transfer a \[non-cigarette \]tobacco product
to another person \[who appears to be under the age of thirty (30) years\]without first
examining the identification of the recipient to confirm that the recipient is at least
\[eighteen (18)\]twenty-one (21) years of age.
Sec. 9-15-6. - Application procedure.
(a) An application for a license shall be submitted and signed by an individual
authorized by the person or entity making application for the license. It is the responsibility
of each applicant and/or licensee to be informed regarding all laws and regulations
applicable to tobacco retailing, including those laws affecting the issuance of said license.
No applicant and/or licensee may rely on the issuance of a license as a determination by
the City that the proprietor has complied with all applicable tobacco retailing laws.
(b) All applications shall be submitted on a form supplied by the Licensing
Officer.
(c) A licensed \[non-cigarette\]tobacco product retailer shall inform the
Licensing Officer in writing of any change in the information submitted on an application
for a license within thirty (30) business days of a change.
(d) All license applications shall be accompanied by the payment in full of all
fees as required in this Chapter.
Sec. 9-15-7. - Issuance of \[non-cigarette\]tobacco product license.
(a) Upon the receipt of a completed application for a \[non-cigarette\]tobacco
product retailer license as required by this Chapter, the Licensing Officer shall sign and
issue a license within thirty (30) days, which period may be extended by the Licensing
Officer for good cause, unless substantial evidence demonstrates that one (1) or more of
the following bases for denial exists:
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(1) The information presented in the application is incomplete, inaccurate
or false;
(2) The applicant seeks authorization for a license at a location where
this Chapter prohibits the issuance of a license;
(3) The applicant seeks a license for a location that is not appropriately
zoned for the use;
(4) The applicant seeks authorization for a license and the applicant's
current license is suspended or revoked;
(5) The applicant is not qualified to hold the requested license under the
provisions of this Chapter;
(6) The applicant and/or \[retail location\]licensed premises is not in
compliance with all City, state or federal laws;
(7) The applicant is indebted to or obligated in any manner to the City
for unpaid taxes, liens, or other monies; or
(8) The payment of the licensing fee in the full amount chargeable for
such license does not accompany such license application.
Sec. 9-15-8. - Denial of \[non-cigarette\]tobacco product license.
(a) If the Licensing Officer denies the issuance of the license, the Licensing
Officer shall notify the applicant in writing by regular mail postage prepaid on the address
shown in the application. The notice shall include the grounds for denial. Notice is deemed
to have been properly given upon mailing.
(b) An applicant has the right to appeal the Licensing Officer's denial of an
application to a "Hearing Officer" that shall be appointed by the Mayor. Such an appeal
shall be initiated by filing a written request with the Licensing Officer within twenty (20)
days of the date of the notice of denial of the issuance of a license.
(c) The applicant's failure to timely appeal the decision of the Licensing Officer
is a waiver of the applicant's right to contest the denial of the issuance of the license.
(d) The appeal, including any right to further appeals, shall be conducted and
controlled by the provisions of Chapter 7 of Title I of the Pueblo Municipal Code. The
standard of proof at such appeal shall be a preponderance of the evidence, and the
burden of proof shall be upon the applicant.
Sec. 9-15-9. - License term, renewal, and expiration.
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(a) Term. All tobacco product retailer licenses issued under this Code shall be
for the period of one (1) year or a fraction thereof and shall expire on the last day of
December of each calendar year unless otherwise specifically provided.
(b) Renewal of license. A licensee shall apply for the renewal of the license and
submit the renewal license fee no later than thirty (30) days prior to expiration of the
existing term. The Licensing Officer shall renew the license prior to the end of the term,
provided that the renewal application and fee were timely submitted and the Licensing
Officer is not aware of any fact that would have prevented issuance of the original license
or issuance of the renewal.
(c) Expiration of license. A license that is not timely renewed shall expire at the
end of its term. The failure to timely obtain a renewal of a license requires submission of
a new application. There shall be no sale of any \[non-cigarette\]tobacco products after
the license expiration date and before the new license is issued.
Sec. 9-15-10. - License nontransferable.
(a) A license shall not be transferred from one (1) person to another or from one
(1) location to another.
(b) When a license has been issued to a husband and wife or to general or
limited partners, the death of a spouse or partner shall not require the surviving spouse
or partner to obtain a new license for the remainder of the term of that license. All rights
and privileges granted under the original license shall continue in full force and effect as
to such survivors for the balance of the term of the license.
Sec. 9-15-11. - Fee for license.
The annual fee for original issuance and renewal of a \[non-cigarette\]tobacco
product retailer license shall be one hundred dollars ($100). The fee to issue or to renew
a license may be changed from time to time by resolution of the City Council. The fee
shall be calculated so as to recover the cost of administration and enforcement of this
Chapter, including, for example, issuing a license, administering the license program,
retailer education and training, retailer inspection, compliance checks, documentation of
violations and prosecution of violators, but shall not exceed the cost of the regulatory
program authorized by this Chapter. Fees are nonrefundable except as may be required
by law. No fee previously paid by a Licensee in connection with the application shall
be refunded if such License is suspended or revoked.
Sec. 9-15-12. - Compliance monitoring.
(a) Compliance monitoring of this Chapter shall be by the Department, as the
Department deems appropriate.
(b) The Department shall have discretion to consider previous compliance check
history of a licensee in determining how frequently to conduct compliance checks of the
licensee with respect to individual licensees.
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(c) Nothing in this Section shall create a right of action in any licensee or other
person against the City, the Department or their agents and officers.
(d) Compliance checks shall be conducted as the Department deems
appropriate so as to allow the Department to determine, at a minimum, if the \[non-
cigarette\]tobacco product retailer is conducting business in a manner that complies with
laws regulating access to \[non-cigarette\]tobacco products. When the Department deems
appropriate, the compliance checks shall determine compliance with other laws
applicable to \[non-cigarette\]tobacco products.
(e) The Department shall not enforce any law establishing a minimum age for
tobacco purchases or possession against a person who otherwise might be in violation
of such law because of the person's age (hereinafter "youth decoy") if the potential
violation occurs when:
(1) The youth decoy is participating in a compliance check supervised
by a peace officer or a code enforcement official of the Department; or
(2) The youth decoy is acting as an agent of a person designated by the
City to monitor compliance with this Chapter; or
(3) The youth decoy is participating in a compliance check funded in
part, either directly or indirectly through subcontracting, by the Pueblo \[City-County
Health\] Department of Public Health and Environment or the Colorado
Department of Public Health and Environment.
Sec. 9-15-13. - Suspension or revocation of license.
(a) The following shall be grounds for suspension or revocation of the licensee's
license:
(1) A violation by a licensee or licensee's officers, agents, or employees
of any of the provisions of this Chapter, or any laws of the United States, the State
of Colorado, or ordinances of the City of Pueblo relating to the sale or furnishing
of tobacco or cigarettes to \[minors\]persons under the age of twenty-one (21),
or the storage or display of cigarettes or tobacco products.
(2) Violations of any conditions imposed by the Licensing Officer or
Hearing Officer in connection with the issuance or renewal of a license.
(3) Failure to pay state or local taxes that are related to the operation of
the business associated with the license.
(4) Loss of right to possession of the licensed premises.
(5) Fraud, misrepresentation, or a false statement of material fact
contained in the original or renewal license application.
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(6) Any violation of any of the requirements of this Chapter relating
to Tobacco product retailing.
(b) The Mayor shall appoint a Hearing Officer to hear all actions relating to the
suspension or revocation of licenses pursuant to this Chapter. The Hearing Officer shall
have the authority to suspend, revoke or impose remedial sanctions for violations.
(c) The Licensing Officer shall commence suspension or revocation
proceedings by petitioning the Hearing Officer to issue an order to the licensee to show
cause why the licensee's license should not be suspended or revoked. The Hearing
Officer shall issue such an order to show cause if the petition demonstrates that probable
cause exists to determine that one (1) or more grounds exist pursuant to Subsection (a)
above to suspend or revoke the licensee's license. The order to show cause shall set the
matter for a public hearing before the Hearing Officer.
(d) Notice of the order to show cause and hearing date shall be mailed to
licensee by regular mail, postage prepaid, at the address shown on the license no later
than thirty (30) days prior to the hearing date. Notice is deemed to have been properly
given upon mailing.
(e) The notice to show cause hearing and any subsequent right to appeal shall
be conducted and controlled by the provisions of Chapter 7 of Title I of the Pueblo
Municipal Code. The standard of proof at such hearings shall be a preponderance of the
evidence, and the burden of proof shall be upon the Licensing Officer and/or Department.
(f) In determining whether a license should be suspended or revoked, and in
determining whether to impose conditions in the event of a suspension, the Hearing
Officer shall consider the following factors:
(1) The nature and circumstances of the violation;
(2) Corrective action, if any, taken by the licensee;
(3) Prior violations, if any, by the licensee;
(4) The likelihood of recurrence of the violation;
(5) Whether the violation was willful; and
(6) Previous sanctions, if any, imposed on the licensee.
(g) Every licensee whose license has been suspended by the Hearing
Officer shall post two notices in conspicuous places, one on the exterior and one
on the interior of its premises, for the duration of the suspension. The notices shall
be two feet in length and fourteen inches in width containing lettering not less than
½ inch in height, and shall be in the following form:
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NOTICE OF SUSPENSION:
TOBACCO PRODUCT RETAIL LICENSE ISSUED FOR
THESE PREMISES HAVE BEEN SUSPENDED BY ORDER
OF THE LOCAL LICENSING AUTHORITY FOR
VIOLATION OF THE PUEBLO MUNICIPAL CODE
(1) Failure to post the signs required by this subsection (g) shall be a violation
of this Code subject to further disciplinary action against the License and/or
Licensee.
(2) Advertising or posting signs to the effect that the premises have been closed
or business suspended for any reason other than by order of the department
suspending alcohol beverage license, shall be a violation of this Code
subject to further disciplinary action against the License and/or Licensee.
Sec. 9-15-14. - Penalties and fines.
(a) Licensees: penalties and fines. In addition to any other penalty authorized by
law, and if the Hearing Officer determines based on a preponderance of the evidence that
the licensee, or any of the licensee's agents or employees, has violated any of the
requirements, conditions or prohibitions of this Chapter, or has pleaded guilty, "no
contest" or its equivalent, or admitted to a violation of any law relating to the sale of
tobacco to \[minors\]persons under the age of twenty-one (21), including but not limited
to Sections 18-13-121 and 24-35-503, C.R.S., the Hearing Officer may consider the
following non-binding guidelines in determining the sanctions to be imposed upon a
licensee as follows:
(1) One (1) violation within \[one (1) year\]three (3) years: a civil penalty
of \[one\]three hundred dollars \[($100)\]($300).
(2) Two (2) violations within \[one (1) year\]three (3) years: a civil penalty
of \[two\]six hundred dollars \[($200)\]($600) and suspension of the license for
seven (7) days.
(3) Three (3) violations within \[one (1) year\]three (3) years: a civil
penalty of \[three\]nine hundred dollars \[($300)\]($900) and a minimum \[twenty
(20)\]thirty (30) days suspension of the license.
(4) Four (4) violations within \[one (1) year\]three (3) years: a civil
penalty of \[five hundred \]one thousand dollars \[($500)\]($1,000) and revocation
of the license.
The actual sanction imposed upon a licensee for any violation may vary from the
above-stated guidelines when warranted by the specific facts and circumstances of the
case.
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(b) After the effective date of this ordinance, it shall be unlawful and a Class 1
municipal offense for any \[non-cigarette\]tobacco product retailer to sell a \[non-
cigarette\]tobacco product without a license as mandated under this Chapter, or with a
suspended or revoked license. In addition, the Hearing Officer may impose civil penalties
of up to $500 for each separate \[non-cigarette\]tobacco product sold during the period of
noncompliance with this Chapter.
Sec. 9-15-15. - Enforcement.
(a) The remedies provided by this Chapter are cumulative and in addition to
any other remedies available at law or in equity. In addition to other remedies provided
by this Chapter or by other law, any violation of this Chapter may be remedied by a civil
action brought by the City Attorney, including but not limited to nuisance abatement
proceedings and injunctive relief.
(b) Causing, permitting, aiding, abetting, or concealing a violation of any
provision of this Chapter shall cause the offender to be subject to the penalty provisions
of Chapter 1 of Title XI of this Code.
Sec. 9-15-16. – Compliance with Section 39-22-623, C.R.S.
This Chapter is not nor shall not be construed in any way as \[imposing a fee,
license or tax as a condition for engaging in the business of selling cigarettes or \]imposing
a tax on any person as a condition for engaging in the business of selling cigarettes.
\[The non-cigarette tobacco product retailer license in no way applies to the sale of
cigarettes.\]If any part of this Chapter is found to impose a \[fee, license or\]tax as a
condition for engaging in the business of selling cigarettes, then that part shall be deemed
void.
Sec. 9-15-17. - No rights in license.
Every license issued under this Chapter confers only a limited and conditional
privilege subject to the requirements, conditions, limitations, and qualifications of this
Chapter. The license does not confer a property right of any kind. The license and
privilege created by the license may be further regulated, limited, or completely
extinguished at the discretion of City Council or the electorate of the City, as provided in
this Chapter, without any compensation to the licensee. Nothing contained in this Chapter
grants to any licensee any vested right to continue operating under the provisions of this
Chapter as they existed at the time the license was approved or issued, and every license
shall be subject to any ordinance or prohibition adopted after the license was approved
or issued.
Sec. 9-15-18. – Distance from Schools
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(a) The License Officer shall not approve a Tobacco Products Retail
License Application for a new retail location if the new retail location is located
within five hundred feet of a school. The distance between the new retail location
and the school is measured from the nearest property line of land used for school
purposes to the nearest portion of the licensed premises using a route of direct
pedestrian access.
(1) This subsection (a) does not apply to retail locations at which
tobacco products were sold before the effective date of this subsection (a).
(2) If a licensed premise that was in existence as of the effective
date of this subsection (a) is transferred to a new owner after the effective
date of this subsection (a), the new owner need not comply with this
subsection (a)
(b) As used in this section “school” shall have the same meaning as set
forth in Colorado Revised Statute 44-3-103(50).
Section 9-15-19 – Signage requirements
(a) The owner, operator, manager, or other person who controls licensed
premises shall display a warning sign as specified in this Subsection. The warning
sign shall be displayed in a prominent place in the retail tobacco store at all times,
shall have a minimum height of three (3) inches and a width of six (6) inches, and
shall read as follows:
WARNING
IT IS ILLEGAL TO SELL CIGARETTES, TOBACCO PRODUCTS, OR
NICOTINE PRODUCTS TO ANY PERSON UNDER TWENTY-ONE
YEARS OF AGE. STATE LAW REQUIRES THAT, TO PURCHASE
CIGARETTES, TOBACCO PRODUCTS, OR NICOTINE PRODUCTS
AT THIS RETAIL LOCATION, A PERSON MUST PRESENT A VALID
GOVERNMENT-ISSUED PHOTOGRAPHIC IDENTIFICATION AT THE
TIME OF PURCHASE IF THE PERSON APPEARS TO BE UNDER
FIFTY YEARS OF AGE.
(b) The owner, operator, manager, or other person who controls a licensed
premises shall display a sign as specified in this Subsection. The sign shall be
displayed in a prominent place in the retail tobacco store at all times, shall have a
minimum height of three (3) inches and a width of six (6) inches, and shall read as
follows:
SURGEON GENERAL'S WARNING
SMOKING CAN CAUSE LUNG CANCER, HEART DISEASE, EMPHYSEMA, AND
MAY COMPLICATE PREGNANCY.
Section 9-16-20 – Effective date.
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This Chapter shall become effective on March 1, 2013, and enforceable on and
after that date. This date shall be the effective date. Any \[non-cigarette\]tobacco product
retailer without a license after the effective date will be in violation of this Chapter.
SECTION 2.
Section 208, of Chapter 1, of Title XI of the Pueblo Municipal Code is amended
to read as follows:
Sec. 11-1-208. - Tobacco vending machines.
(a) It shall be unlawful for any person to sell or dispense cigarettes or other
tobacco products through a vending machine or other coin-operated machine, or to
possess or maintain any vending machine or other coin-operated machine containing
cigarettes or other tobacco products within the City except\[:
(1) \]in an age-restricted area of a licensed gaming establishment
as defined in section 44-30-103(18)\[On premises licensed under the Colorado
Liquor Code or Colorado Beer Code for on-premises consumption of alcoholic
beverages or fermented malt beverages;
(2) Within private residences or private clubs
(3) On other premises which are not legally open or generally accessible
to persons under the age of eighteen (18) years\].
(b) Nothing in this section is intended to allow any person to sell or
dispense tobacco products without holding a license as required in Chapter 15, of
Title IX of this Code.
(c) Violation of any provision of this Section shall be a Class 2 municipal
offense.
\[(c) Nothing contained in this Section shall be construed to permit the purchase,
sale or furnishing of cigarettes or other tobacco products by or to any person under the
age of eighteen (18) years.\]
SECTION 3.
Section 209, of Chapter 11, of Title XI of the Pueblo Municipal Code is amended
to read as follows:
Sec. 11-1-209. - Sale, possession and use of tobacco products.
(a) Definitions. As used in this Section:
Substituted Copy:
September 28, 2020
(1) \[Minor means any natural person who is under eighteen (18) years of
age.\]Retail tobacco store means a retail store utilized primarily for the sale
of tobacco products and accessories and in which the sale of other products
is merely incidental.
(2) Tobacco product means:
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 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.
(c) It shall be unlawful and a Class 2 municipal offense for any person to
knowingly furnish to any \[minor\]person under the age of twenty-one (21) years, 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
\[minor\]person receiving the tobacco product as being \[eighteen (18)\]twenty-one (21)
years of age of older.
(d) 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.
Substituted Copy:
September 28, 2020
(e) Notwithstanding the provisions of this Section, it shall be unlawful and a
Class 2 municipal offense for a person under \[eighteen (18)\]twenty-one (21) years of
age to be admitted to or be on the premises of, when such premises is open for business,
a retail tobacco store \[as defined in Section 7-6-3(15) of this Code \]or a \[non-cigarette
tobacco product retail location\]licensed premises as defined in Section 9-15-2\[(8)\](10)
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.
\[(h) The owner, operator, manager, or other person who controls a retail
tobacco store shall display a warning sign as specified in this Subsection. The warning
sign shall be displayed in a prominent place in the retail tobacco store at all times, shall
have a minimum height of three (3) inches and a width of six (6) inches, and shall read
as follows:
WARNING
IT IS ILLEGAL FOR ANY PERSON UNDER EIGHTEEN YEARS OF
AGE TO BE ON THE PREMISES OF THIS RETAIL TOBACCO STORE
AND, UPON CONVICTION, A $300.00 FINE MAY BE IMPOSED
(i) The owner, operator, manager, or other person who controls a retail
tobacco store shall display a sign as specified in this Subsection. The sign shall be
displayed in a prominent place in the retail tobacco store at all times, shall have a
minimum height of three (3) inches and a width of six (6) inches, and shall read as follows:
SURGEON GENERAL'S WARNING
SMOKING CAN CAUSE LUNG CANCER, HEART DISEASE, EMPHYSEMA, AND
MAY COMPLICATE PREGNANCY.\]
SECTION 4.
The officers and staff of the City are authorized and directed to perform any and
all acts consistent with the intent of this Ordinance to effectuate the policies and
procedures described herein.
SECTION 5.
This Ordinance shall become effective on the date of final action by the Mayor and
City Council.
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on August 24, 2020.
Final adoption of Ordinance by City Council on September 28, 2020.
President of City Council
Substituted Copy:
September 28, 2020
Action by the Mayor:
☒ Approved on September 30, 2020 .
☐ Disapproved on based on the following objections:
Mayor
Action by City Council After Disapproval by the Mayor:
☐ Council did not act to override the Mayor's veto.
☐ Ordinance re-adopted on a vote of , on
☐ Council action on __________________failed to override the Mayor’s veto.
President of City Council
ATTEST
City Clerk
Substituted Copy:
September 28, 2020
City Clerk’s Office Item # R-1
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: August 24, 2020
TO: President Dennis E. Flores and Members of City Council
CC: Mayor Nicholas A. Gradisar
VIA: Brenda Armijo, City Clerk
FROM: Kyle S. Aber, Assistant City Attorney
SUBJECT: AN ORDINANCE AMENDING THE REGULATION OF TOBACCO PRODUCTS
SOLD AND CONSUMED IN THE CITY OF PUEBLO; REQUIRING A TOBACCO
RETAILER LICENSE FOR THE SALE OF CIGARETTES; PROHIBITING THE
SALE AND FURNISHING OF TOBACCO PRODUCTS TO PERSONS UNDER
THE AGE OF TWENTY-ONE YEARS; ELIMINATING CRIMINAL PENALTIES
FOR UNDERAGE POSSESSION OR PURCHASE OF TOBACCO PRODUCTS;
AND AMENDING THE PRESUMPTIVE PENALTIES FOR VIOLATION OF THE
RETAIL TOBACCO REGULATIONS
SUMMARY:
Since the City passed and implemented Chapter 15 of Title IX of the Municipal Code regulating
the sale of non-cigarette tobacco products, the laws and regulations concerning tobacco products
have changed significantly at both the State and Federal level. Additionally, the Non-Cigarette
Tobacco Retail Licensing Workgroup has had time to observe and evaluate the effects of that
legislation. This Ordinance updates the Municipal Code to bring it in line with the changes to state
and federal law and adopts recommendations of the Non-Cigarette Tobacco Retail Licensing
Workgroup.
PREVIOUS COUNCIL ACTION:
None.
BACKGROUND:
Attached is an Ordinance updating the portions of the Pueblo Municipal Code regulating tobacco
products. This Ordinance makes several changes to the regulation of tobacco products in the
Municipal Code.
1) On March 28, 2019, the Governor signed legislation amending Section 39-22-623
of the Colorado Revised Statutes. This legislation allows municipalities to impose fees and
licensing requirements on cigarette retailers without forfeiting a share of cigarette tax revenue
collected by the State. Currently the Municipal Code only requires a license for the sale of non-
cigarette tobacco products. This Ordinance amends the Municipal Code to require that all
businesses that sell tobacco products, including cigarettes, acquire a municipal license and pay
the related fees.
Substituted Copy:
September 28, 2020
2) On December 20, 2019, the President signed legislation amending the Federal
Food, Drug, and Cosmetic Act which raised the minimum purchase age for tobacco products from
eighteen (18) to twenty-one (21) years. This Ordinance amends the Municipal Code to prohibit
the sale or furnishing of tobacco products to any person under the age of twenty-one (21) years.
Individuals over the age of eighteen (18) years will still be able to handle and sell tobacco
products, as part of their employment, if they are an employee of a licensed tobacco product
retailer.
3) On July 14, 2020, the Governor signed legislation which, among other things;
prohibited retailers from selling tobacco products to anyone under the age of twenty-one (21)
years, eliminated the prohibition on possession of tobacco products by minors, limits the use of
tobacco vending machines, established restrictions on how close a tobacco retailer can be to a
school, and requires a State license for the sale of tobacco products. This Ordinance adopts the
limits on vending machines and the distance restrictions enacted by the State. This Ordinance
also eliminates the prohibition and related criminal penalties on underage possession and
purchase of tobacco products.
4) The Municipal Code currently has guidelines regarding penalties for violations of
Article 15 of Title IX. These guidelines are based on the Hearing Officer’s consideration of
additional violations from the same licensee that occurred in the last year. Given the number of
licenses issued (approximately 120) and the limited resources of the Police Department it is
unlikely that compliance checks can be done on each retailer multiple times each year. Therefore,
this Ordinance changes the Municipal Code to recommend the Hearing Officer consider prior
violations from the previous three (3) years. Additionally, this Ordinance raises the penalty for
violations to be more in line with penalties issued by the State.
FINANCIAL IMPLICATIONS:
The amount of fines listed in the guidelines for penalties will increase under this Ordinance which
will nominally increase the money collected by the City for violations of the tobacco code. This
amount is not expected to be significant in relation to the City budget.
BOARD/COMMISSION RECOMMENDATION:
None.
STAKEHOLDER PROCESS:
The Non-Cigarette Tobacco Workgroup has reviewed this Ordinance and supports its passage.
The Workgroup consists of members of the Pueblo Police Department, the Pueblo City Clerk’s
Office, the Pueblo City Attorney’s Office, and the Pueblo Department of Health & the Environment.
The Workgroup collaborated to develop the amendments to the Municipal Code proposed by this
Ordinance.
ALTERNATIVES:
If this Ordinance does not pass:
cigarette retailers will not need a license to operate in the City and the City will not receive
licensing fees from them;
the Municipal Code will allow the sale of tobacco products to those under the age of 21,
which will be in conflict with current Federal and State laws;
Substituted Copy:
September 28, 2020
the Municipal Code will continue to prohibit possession and purchase of tobacco products
by individuals under the age of eighteen (18);
the City will not adopt distance restrictions imposed on tobacco product retailer licensees
which have been adopted by the State;
the Municipal Code will allow tobacco vending machines in areas not allowed under State
law, creating a conflict;
the Hearing Officer will continue to be recommended to only consider violations that
occurred in the last year when imposing penalties for violations of Article 15 of Title IX of
the Municipal Code.
RECOMMENDATION:
It is recommended that this Ordinance be passed.
Attachments: Proposed Ordinance