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HomeMy WebLinkAboutordinance.council.014-2019 ORDINANCE NO. 14 (Series 2019) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN,COLORADO, AMENDING TITLE 13 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN - HEALTH AND QUALITY OF ENVIRONMENT- TO ADD A NEW CHAPTER 13.26 ENTITLED: RESTRICTIONS ON THE SALE OF ELECTRONIC SMOKING DEVICE FLAVORING IN TOBACCO PRODUCT RETAIL ESTABLISHMENTS WHEREAS, Aspen area students report vaping rates among the highest in the nation. WHEREAS, 81% of youth who have ever used a tobacco product report that the first tobacco product was flavored. WHEREAS, flavored nicotine products promote youth initiation of tobacco use and help young occasional smokers to become daily smokers by reducing or masking the natural harshness and taste of tobacco smoke and thereby increasing the appeal of tobacco and nicotine products. WHEREAS, the full risk of vaping products is still largely unknown at this time. WHEREAS, the Centers for Disease Control and Prevention has reported a more than 800% increase in electronic cigarette use among middle school and high school students between 2011 and 2015. WHEREAS, nicotine solutions, which are consumed via electronic smoking devices such as electronic cigarettes, are sold in thousands of youth-appealing flavors, such as cotton candy and bubble gum. WHEREAS, the City Council finds that this ordinance furthers and is necessary for the promotion of the public health, safety, and welfare to reduce the appeal of tobacco to youth and to reduce the likelihood that youth will become tobacco users by prohibiting Tobacco Product Retailers from selling, offering for sale, or possessing with the intent to sell, flavored nicotine products. NOW THEREFORE,BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. TITLE 13 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN - HEALTH AND QUALITY OF ENVIRONMENT—IS HEREBY AMENDED TO ADD A NEW CHAPTER 13.26 ENTITLED: RESTRICTIONS ON THE SALE OF ELECTRONIC SMOKING DEVICE FLAVORING IN TOBACCO PRODUCT RETAIL ESTABLISHMENTS, WHICH CHAPTER SHALL READ AS FOLLOWS: 1 Chapter 13.26 RESTRICTIONS ON THE SALE OF ELECTRONIC SMOKING DEVICE FLAVORING IN TOBACCO PRODUCT RETAIL ESTABLISHMENTS Section 13.26.020 DEFINITIONS A. "Characterizing Flavor" means a Distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a Tobacco Product or any byproduct produced by the Tobacco Product. Characterizing flavors include,but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage,menthol,mint, wintergreen, herb, spice; provided,however,that a Tobacco Product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a Distinguishable taste or aroma or both, as described in the first sentence of this definition that constitutes a characterizing flavor. B. "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 of this Chapter, cigar includes,but is not limited to tobacco products known or labeled as "cigar,""cigarillo," or"little cigar." C. "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: 1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; 2)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 3) 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 above. 4)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. D. "Constituent" means any ingredient, substance, chemical, or compound other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a Tobacco Product, including an Electronic Smoking Device, during the processing,manufacture, or 2 packaging of the Tobacco Product, including an Electronic Smoking Device, that imparts a Characterizing Flavor. E. "Consumer"means an individual who purchases a Tobacco Product or Tobacco Paraphernalia for consumption and not for Sale to another. F. "Distinguishable" means perceivable by either the sense of smell or taste. G. "Electronic Smoking Device" means any product 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, 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. H. "Establishment" means any store, stand,booth, concession or any other enterprise that Sells, offers for Sale, or does or offers to exchange for any form of consideration, Tobacco Products or Tobacco Paraphernalia including,but not limited to any retail location, stand, outlet, vehicle, cart, vending machine, structure or any grounds where Tobacco Products and/or Tobacco Paraphernalia are sold or offered for exchange. I. "Flavored Tobacco Product" means any Tobacco Product, including Electronic Smoking Device flavoring, that contains a Constituent or that imparts a Characterizing Flavor. J. "Ingredient"means any substance, chemical or compound, other than tobacco, water or reconstituted tobacco sheet that is added by the manufacturer to a tobacco product during the processing,manufacture or packing of the Tobacco Product. K. "Labeling" means written, printed, pictorial, or graphic matter upon any Tobacco Product or any of its Packaging. L. "License" means a Tobacco Product Retail License. M. "Manufacturer"means a Person, including any repacker or relabeler, who manufacturers, fabricates, assembles,processes, or labels a Tobacco Product; or imports a finished Tobacco Product for Sale or distribution into the United States. N. "Packaging" means a pack,box, carton, or container of any kind or, if no other container, any wrapping(including cellophane) in which a Tobacco Product(s) is sold or offered for Sale to a consumer. O. "Person" in this Chapter means any natural person,partnership, cooperative association, corporation, limited liability company, personal representative, receiver, trustee, assignee or other legal entity. P. "Sale or Sell" means any transfer, exchange,barter, gift, offer for sale, or distribution for a commercial purpose, in any manner, for any form of consideration or by any means whatsoever. 3 Q. "Tobacco Paraphernalia" means any item designed for the consumption, use, or preparation of Tobacco Products. R. "Tobacco Product" means: 1. any product which contains, is made or derived from tobacco or used to deliver nicotine, synthetic nicotine or other substances intended for human consumption, whether 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,bidis, snus,mints,hand gels; and 2. an Electronic Smoking Device; 3. notwithstanding any provision of subsections 1. and 2., above to the contrary, "Tobacco Product" includes any component,part, accessory or associated Tobacco Paraphernalia of a Tobacco Product whether or not sold separately. 4. The term"Tobacco Product"does not include: (i) any product that contains marijuana; and (ii) any product made from or derived from tobacco and approved by the Food and Drug Administration(FDA) for use in connection with cessation of smoking. S. "Tobacco Product Retailer"means any person who engages in the Sale of Tobacco Products and or Flavored Tobacco Products directly to the public from any store, stand,booth, concession, outlet, vehicle, cart, vending machine, structure or any grounds or any other enterprise that Sells, offers for Sale, or does or offers to exchange for any form of consideration. T. "Tobacco Product Retailing" means the act of selling, offering for sale or exchanging or offering to exchange for any form of consideration, Tobacco Products and or Flavored Tobacco Products. Section 13.26.030 SALE OR DISTRIBUTION OF ELECTRONIC SMOKING DEVICE OR CONSTITUENT THEREOF THAT IMPARTS OR CONTAINS A CHARACTERIZING FLAVOR PROHIBITED A.The Sale or distribution by a Tobacco Product Retailer of an Electronic Smoking Device that contains a Constituent or that imparts or contains a Characterizing Flavor, including any refill, cartridge or component part of a product, whether or not marketed or sold separately, is prohibited. B.A Tobacco Product Retailer, or any of the Tobacco Product Retailer's agents, or employees shall not sell, offer for sale or possess with the intent to sell an Electronic Smoking Device that contains a Constituent or that imparts or contains a Characterizing Flavor, including any refill, cartridge or component part of a product, whether or not marketed or sold separately. 4 C.There shall be a rebuttable presumption that an Electronic Smoking Device or a Constituent thereof imparts or contains a Characterizing Flavor if a Manufacturer or any of the Manufacturer's agents or employees, in the course of their agency or employment, has made a statement or claim directed to Consumers or to the public that the Electronic Smoking Device or a Constituent thereof has or produces a Characterizing Flavor, including,but not limited to,text, color; and/or images on the product's Labeling or Packaging that are used to explicitly or implicitly communicate that the Electronic Smoking Device or a Constituent thereof has a Characterizing Flavor. D. There shall be a rebuttable presumption that a Tobacco Product Retailer in possession of four or more Electronic Smoking Devices or Constituents thereof that imparts or contains a Characterizing Flavor, including any refill, cartridge or component part of a product, whether or not marketed or sold separately, including but not limited to individual products,packages of products, or any combination thereof,possesses such Electronic Smoking Devices or Constituents thereof with the intent to Sell or offer said products for Sale. Section 13.26.040 COMPLIANCE MONITORING A. Enforcement of this Chapter shall be monitored by the local police department and the City of Aspen Environmental Health Department. B. All Tobacco Product Retailers shall be subject to a compliance check for adherence to the provisions of this Chapter at least twice a year with violators being checked more frequently until two (2) consecutive checks are completed without a violation. Section 13.26.050 VIOLATIONS, PENALTIES AND FINES. A. Licensee Penalties and Fines. In addition to any other penalty authorized by law, if the City of Aspen Municipal Court determines,based on the evidence, that a Tobacco Product Retail 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 related to the Sale of Electronic Smoking Devices or Constituent thereof as set forth herein the following penalties shall be imposed on the Licensee: 1.Upon the first violation, a penalty of five hundred dollars ($500) 2. Upon the second violation within thirty-six (36)months, a penalty of one thousand five hundred dollars ($1500). 3.Upon the third violation within thirty-six (36)months, court appearance shall be mandatory, and the Court may issue a penalty of up to the maximum amount allow by law or imprisonment for a period of up to one(1) year or both such fine and imprisonment at the discretion of the court. 4. Each day of violation constitutes a separate offense. 5 B. Suspension or Revocation of Tobacco Product Retail License. In addition to the penalties set forth about, the City of Aspen may suspend or revoke a Tobacco Product Retailer license issued pursuant to Chapter 13.25,pursuant to the terms set forth in such Chapter 13.25. A Tobacco Product Retailer whose License has been suspended or revoked pursuant to Chapter 13.25: 1. Shall not display Tobacco Products in public view during the time when the License is suspended or revoked; and 2.Advertisements related to Tobacco Products that promote the sale or distribution of said products from the location that could lead a reasonable person to believe that such products can be obtained from the location shall not be displayed. C. Remedies Cumulative. Remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity. In addition to the remedies provided by this Chapter or by any other law, any violation of this Chapter may be remedied by a civil action,brought by the City Attorney including,but not limited to injunctive relief. D. Causing, permitting, aiding, abetting or concealing a violation of any provision of this Chapter shall cause the offender to be subject to the penalties set forth herein or in the Aspen Municipal Code. Section 13.26.070 NO CONFLICT WITH FEDERAL OR STATE LAW. Nothing in this Chapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by federal or state law. Section 2: Litigation This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 3: Severability If any section, subsection, sentence, clause,phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this ordinance in the office of the Pitkin County Clerk and Recorder. 6 ' f Section 4: Effective Date. This Ordinance shall become effective as of January 1, 2020 and in full force and effect on and after that date. Section 5: Public Hearin A public hearing on the ordinance shall be held on the 20th day of May 2019 in the City Council Chambers, Aspen City Hall, Aspen, Colorado, seven(7) days prior to which hearing a public notice of the same was published pursuant to the Aspen Municipal Charter. INTRODUCED,READ AND ORDERED PUBLISHED as provided y law,by t City Council of the City of Aspen on the 13th day of May 2019. Steve Skad n, Mayor ATfPEST: inda Manning, City Clerk FINALLY, adopted,passed and approved this 20th day of May 2019. / l Steven Skadro , Mayor ATTEST: Linda Manning, City Clerk APPROVED AS TO FORM: es R. True, City Attorney 7