Section 5.04.280 Tobacco Dealers.

There exists substantial scientific evidence that the use of tobacco products causes cancer, heart disease and various other medical disorders.

The Surgeon General of the United States has declared that nicotine addiction from tobacco is similar to addiction to cocaine, and is the most widespread example of drug dependence in this country.

The director of the National Institute on Drug Abuse concluded that the majority of the three hundred twenty thousand (320,000) Americans who die each year from cigarette smoking became addicted to nicotine as adolescents before the age of legal consent.

The National Institute on Drug Abuse found that cigarette smoking precedes and may be predictive of adolescent illicit drug use.

The present legislative scheme of prohibiting sales of tobacco products to persons under the age of eighteen (18) has proven ineffective in preventing such persons from using tobacco products.

The enactment of this section directly pertains to and is in furtherance of the health, welfare, and safety of the residents of the City, particularly those residents under eighteen (18) years of age.

"Tobacco products" means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco or dipping tobacco.

"Vending machine" means any mechanical, electric or electronic self-service device, which, upon insertion of money, tokens or any other form of payment, dispenses tobacco products.

C. It shall be unlawful to sell or offer for sale, at retail, to give away, deliver or to keep with the intention of selling at retail, giving away, or delivering tobacco products within the City without having first obtained a tobacco dealer's license therefor pursuant to this section. Such license shall be in addition to any other license required by this chapter.

D. Application for a license hereunder shall be made, in writing, to the City Clerk and shall be processed in accordance with the provisions of section 5.04.040 of this chapter.

E. It shall be unlawful for any person to sell, offer for sale, give away, or deliver tobacco products within one hundred (100) feet of any school, child care facility, or other building used for education or recreational programs for persons under the age of eighteen (18) years.

Sales to: For any person, including any licensee, to sell, offer for sale, give away, or deliver tobacco products to any person under the age of eighteen (18) years.

Signs informing the public of the age restrictions provided for herein shall be posted by every licensee at or near every display of tobacco products and on or upon every vending machine which offers tobacco products for sale. Each such sign shall be plainly visible and shall state:

Sale by: For any licensee or any officer, associate, member, representative, agent, or employee of such licensee, to engage, employ, or permit any person under eighteen (18) years of age to sell tobacco products in any licensed premises.

Purchase: For any person under the age of eighteen (18) years to purchase tobacco products or to misrepresent his identity or age or to use any false or altered identifications for the purpose of purchasing tobacco products.

Possession: For any person under the age of eighteen (18) years to possess any tobacco products; provided, that the possession by a person under the age of eighteen (18) years under th direct supervision of the parent or guardian of such person in the privacy of the parent's or guardian's home shall not be prohibited.

Penalties generally: Any person violating any provision of this section shall be fined not less than two hundred dollars ($200.00) nor more than seven hundred fifty dollars ($750.00) for each offense, and a separate offense shall be deemed committed on each day during or on which a violation occurs or continues. In addition to any other penalty, a licensee convicted of violating any provision of this section may be subject to having his license revoked, suspended or not renewed by the City.

G. It shall be unlawful for any licensee or any person in the business of selling or otherwise distributing, promoting, or advertising tobacco products, or any employee or agent of any such licensee or person, in the course of such licensee's or person's business, to distribute, give away or deliver tobacco products free of charge to any person on any right-of-way, park, playground, or other property owned by the City, any school district, any park district, or any public library.

H. 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 products by use of a vending machine unless such vending machine is equipped with a manual, electric or electronic locking device controlled by the licensee so as to prevent its operation by persons under the age of eighteen (18) years.

Any premises where access by persons under the age of eighteen (18) years is prohibited by law or premises where the public is generally not permitted and where vending machines are strictly for the use of employees of the business located at such premises shall be exempt from the requirements of this section.

I. The Mayor shall be charged with the administration of this section. The Mayor may suspend or revoke any license issued under the provisions of this section if he or she determines that the licensee has violated any of the provisions hereof. In lieu of suspension or revocation of a license, the Mayor may, instead, levy a fine on the licensee. The fine imposed shall not be less than seventy-five ($75.00) and shall not exceed the maximum amount of seven hundred fifty dollars ($750.00) for each violation. Each violation shall constitute a separate offense and each day on which a violation continues shall constitute a separate violation.

J. Hearing; decisions; fees: Notice of hearing: No such license shall be suspended or revoked and no licensee shall be fined except after a public hearing by the Mayor with a seven (7) day written notice to the licensee affording the licensee an opportunity to appear and defend against the charges contained in such notice. The seven (7) day notice provisions shall begin the day following delivery by certified mail or by personal service.

Mayor's decision: The Mayor shall, within seven (7) days after such hearing, if he or she determines after such hearing that the license should be revoked or suspended, or that the licensee should be fined, state the reason for such determination in a written order and either the amount of the fine, the period of suspension, or that the license has been revoked and serve a copy of such order within said seven (7) day period upon the licensee.

Fees: Any licensee determined by the Mayor to have violated any of the provisions of this section shall pay to the City the costs of the hearing before the Mayor on such violation. The Mayor shall determine the costs incurred by the City for said hearing, including, but not limited to, court reporter's fees, the costs of transcripts or records, attorneys' fees, the cost of preparing and mailing notices and orders, and all other miscellaneous expenses incurred by the City or such lesser sum as the Mayor may allow.

The licensee shall pay said costs to the City within thirty (30) days of notification of the costs by the Mayor. Failure to pay said costs within thirty (30) days of notification is a violation of this section and may be cause for license suspension or revocation or the levy of a fine.

Use of premises after license revocation: When any license shall have been revoked for any cause, no license shall be granted to said licensee for the period of six (6) months thereafter for the conduct of the business of selling tobacco products, as defined in this section, on the premises described in such revoked license.

Responsibility of licensee for agents and employees: Every act or omission of whatsoever nature constituting a violation of any of the provisions of this section 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 subject to punishment in the same manner as if such act or omission had been done or committed by the licensee personally.

(5.04.280 (Ord. 2077), Repealed & Replaced, 08/05/2002, Business Licensing and Regulation.)