HomeMy WebLinkAboutordinance.council.017-17 ORDINANCE NO. 17
(Series 2017)
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 13.25 ENTITLED:
LICENSING OF TOBACCO RETAILERS.
WHEREAS, Smoking rates in the U.S. have declined substantially since the Surgeon
General's 1964 report, from 42 percent to now about 18 percent; however, it remains one of the
biggest public health problems in the United States as almost 500,000 Americans still die
prematurely each year from diseases related to cigarette smoking. This makes up 85% of deaths
from lung cancer. In Colorado, like most other states, it is the number one cause of preventable
death, and accounts for 5,100 deaths a year; and
WHEREAS, 90% of adult smokers started smoking before the age of 18 and each day
more than 3,000 adolescents in the U.S. try their first cigarette; and
WHEREAS, Since 2014, after decades of effective anti-smoking campaigns and
decreasing smoking rates in the U.S., there has been a surprising upturn in youth tobacco use;
and
WHEREAS, over 225 U.S. localities and the states of California and Hawaii have
enacted into law regulations prohibiting the sale of tobacco products to individuals under the age
of 21 and research has shown such regulations are effective in decreasing high school tobacco
use by up to 50%; and
WHEREAS, Research has shown that teens purchase cigarettes from their peers and that
90% of the "social sources" (friends and family) of tobacco for the 12-18 year olds are 18-21
year olds. It has also been shown that youth typically do not make the effort to travel to
neighboring localities if the age has increased to 21 in their city; and
WHEREAS, the City Council finds that this ordinance furthers and is necessary for the
promotion of the public health, safety, and welfare.
NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ASPEN,
COLORADO:
Section 1.
That Title 13 —Health and Quality of Environment - of the Municipal Code of the City of
Aspen, Colorado, is hereby amended by the addition of a new chapter 13.25 — Licensing of
Tobacco Retailers, which chapter shall read as follows:
Chapter 13.25
LICENSING OF TOBACCO RETAILERS
13.25.010 Incorporation of general licensing provisions.
The provisions of Chapter 14.04 City of Aspen Municipal Code (Licenses and Permits
Generally) and Section 1.04.110 (Double Fee for Failure to Obtain Required Licenses), shall
apply to this Chapter except where they are specifically modified by the provisions of this
Chapter.
13.25.020 Definitions.
The following definitions shall apply throughout this Chapter:
(a) 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, of purchased by, consumers as a cigarette described in
subparagraph (1)(a) 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.
(k) Department means the City of Aspen Environmental Health Department, and any
agency or person designated by the City Manager to enforce or administer the
provisions of this Chapter.
(c) Electronic Smoking Device means an electronic device that, when activated, emits a
vapor, aerosol, fume or smoke that may be inhaled or absorbed by the user, including,.
but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, e-hookah and similar
devices. Electronic smoking device includes any component, part, or accessory of
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such a device, whether or not sold separately, and includes any substance, with or
without nicotine, intended to be aerosolized, vaporized or produces a fume or smoke
during the use of the device intended for human consumption.
(d) Licensee means the owner or holder of a Tobacco Product Retailer License.
(e) License refers to the Tobacco Product Retailer license.
(f) Licensing Administrator means the person(s) within the City government designated
with responsibilities by the City Manager for license issuance, renewal and collection
of fees.
(g) Minimum Legal Sales Age means twenty-one (2 1) years of age or older.
(h) Mobile Vending means any sales other than at a fixed location.
(i) Tobacco Product means 1) any product which contains, is made or derived from
tobacco or used to deliver 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, suns, mints, hand gels; and 2)
electronic smoking device; 3) notwithstanding any provision of subsections 1) and 2)
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.
(j) Tobacco Product Retail Location or Retail Location means any premises where
Tobacco Products are sold or distributed to a consumer including, but not limited to,
hookah bar, lounge or cafe, any grounds occupied by a retailer, any store, stand,
outlet, vehicle, cart, location, vending machine or-structure where Tobacco Products
are sold.
(k) Tobacco Product Retailer means any Person who sells, offers for sale, or does or
offers to exchange for any form of consideration, Tobacco or Nicotine Products, or
Tobacco Paraphernalia. "Tobacco Retailing" shall mean the doing of any of these
things. This definition is without regard to the quantity of Tobacco Products or
Tobacco Paraphernalia sold, offered for sale, exchanged, or offered for exchange.
(1) Tobacco Product Retailing means the selling, offering for sale, or exchanging for any
form of consideration a Tobacco Product.
(m)Self-Service Display means the open display or storage of Tobacco Products in a
manner that is physically accessible in any way to the general public without the
assistance of the retailer or employee of the retailer and a direct person-to-person
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transfer between the purchaser and the retailer or employee of the retailer. A vending
machine is a form of self-service display.
(n) Tobacco Paraphernalia means any item designed for the consumption, use or
preparation of Tobacco Products.
(o) Vending machine shall mean any mechanical, electrical, or electronic self-service
device which, upon insertion of money, tokens, or any other fort of payment,
dispenses product.
13.25.030 Minimum Legal Sales Age.
Tobacco Products shall not be sold to any person under the Minimum Legal Sales Age.
13.25.040 License requirements and prohibitions.
(a) Tobacco Product Retailer License required.
(1) It shall be unlawful for any person to act as a Tobacco Product Retailer in the City
unless he or she has obtained a License and maintains the same in full force and
effect pursuant to this Chapter for each location where Tobacco Product Retailing
occurs.
(2) No license may be issued to authorize Tobacco Product retailing anywhere other
than at a fixed location that is designated in the License application and approved
by the Licensing Administrator. Tobacco Product Retailing by a persons on foot,
from vehicles or through Mobile Vending is prohibited.
(3) Tobacco Retailing without a valid License is a nuisance as a matter of law.
(b) Display of License. Each License shall be prominently displayed in a publicly
visible location at the licensed Tobacco Product Retail Location.
(c) Display of Minimum Legal Sales Age Requirements. The requirement of the
Minimum Legal Sale Age for the purchase of Tobacco Retail Product shall be
prominently displayed in the entrance (or other clearly visible location) of the
Tobacco Product Retail Location.
(d) Other Prohibitions.
(1) A Tobacco Product Retail Location may only have one 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.
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(2) A person or entity may not apply for a License for a one year period after a
License has been revoked.
(3) No License shall be issued to any person under twenty-one (21) years of age.
13.25.050 Conditions of the Tobacco Product Retail License.
The following conditions shall apply to the Licensee:
(a) Minimum age for persons handling Tobacco Products. No Person who is younger
than the minimum age established by the City to purchase and possess the Tobacco
Products shall, while employed at a Tobacco Product Retail Location, sell, stock,
retrieve, or otherwise handle Tobacco Products.
(b) Prohibition of self-service displays. Licensees shall stock and display all 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 Tobacco Product from an employee of the business to the customer.
(c) Requirements of positive identification. No person engaged in Tobacco Product
retailing shall sell or transfer a 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 twenty-one (21) years of age.
(d) No Licenses shall be issued within 500' of schools. No Licenses will be issued to
retailers located within 500 feet from schools or youth populated areas (community
specific locations, playgrounds, parks etc.), as determined by the Licensing
Administrator. This restriction shall not apply to an existing Retail Location within
500 feet of a youth populated area.
13.25.060 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
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
Administrator.
(c) A licensed Tobacco Product Retailer shall inform the Licensing Administrator in
writing of any change in the information submitted on an application for a License
within thirty (30) business days of a change.
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(d) All License applications shall be accompanied by the payment in full of all fees as
required in this Chapter.
13.25.070 Issuance of a Tobacco Product License.
Upon the receipt of a completed application for a License as required by this Chapter, the
Licensing Administrator shall sign and issue a License within thirty (30) days which period may
be extended by the Licensing Administrator for good cause unless substantial evidence
demonstrates that one or more of the following bases for denial exists:
(a) The information presented in the application is incomplete, inaccurate or false;
(b) The applicant seeks authorization for a License at a location where this Chapter
prohibits the issuance of a License;
(c) The applicant seeks a License for a location that is not appropriately zoned for the
use;
(d) The applicant seeks authorization for a License and the applicant's current License is
suspended or revoked;
(e) The applicant is not qualified to hold the requested License under the provisions of
this Chapter; or
(f) The applicant and/or retail location is not in compliance with all City, state or federal
laws;
(g) The applicant is indebted to, or obligated in any manner to the City for unpaid taxes,
liens or other monies; or
(h) The payment of the licensing fee in the full amount chargeable for such License does
not accompany such License application.
13.25.080 Denial of Tobacco Product License.
(a) If the Licensing Administrator denies the issuance of the License, the Licensing
Administrator 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 Administrator's denial of an
application to the "Hearing Officer" that shall be appointed by the City Manager.
Such an appeal shall be initiated by filing a written request with the Licensing
Administrator 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 Administrator is
a waiver of the applicant's right to contest the denial of the issuance of the License.
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(d) The appeal, including any right to further appeals, shall be conducted and controlled
by the provisions of Rule 106(a)(4) of the Colorado Rules of Civil Procedure. The
standard of proof at such appeal shall be a preponderance of the evidence and the
burden of proof shall be upon the applicant. The Licensee's failure to timely appeal
the decision is a waiver of the Licensee's right to contest the suspension or revocation
of the License.
13.25.090 License term, renewal and expiration.
(a) Tenn. All 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 Administrator shall renew the License prior to the end of
the tern, provided that the renewal application and fee were timely submitted and the
Licensing Administrator 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 Tobacco Products after the License
expiration date and before the new License is issued.
13.25.100 License non-transferable.
(a) A License shall not be transferred from one (1) person to another or from one 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.
13.25.110 Fee for License.
(a) The annual fee for original issuance of a License for applications filed in 2018 shall
be five hundred dollars ($500). 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 direct and indirect costs 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, community outreach and education, 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.
In addition, from time to time, as deemed appropriate by License Administrator, the
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License may be increased in accordance with Article X Section 20 of the Colorado
Constitution.
(b) All fees and interest from proceeds of License fees under this Chapter shall be
deposited in a separate cash account established by the City. These funds are to be
used exclusively to defray the costs of the local licensing program.
(c) As part of the annual budget process, the amount of fees charged by the City pursuant
to this Section shall be reviewed and, if necessary, adjusted to reflect the direct and
indirect costs incurred by the City in connection with the adoption, administration and
enforcement of this Chapter.
(d) Beginning with the fiscal 2018 budget, the amount of the fees charged by the City
pursuant to this Section shall be fixed by City Council as part of its annual budget
process. If, for any reason, such fees are not fixed by City Council as part of its
annual budget process, the fees for the preceding year shall continue to in full force
and effect until changed by City Council.
13.25.120 Compliance monitoring.
(a) Compliance monitoring of this Chapter shall be by the Department, as the
Department(or its designee) deems appropriate.
(b) The Department shall have discretion to consider previous compliance check history
or prior violations of a Licensee in determining how frequently to conduct
compliance checks of the Licensee with respect to individual Licensees.
(c) The Department shall inspect each Tobacco Product Retailer at least two (2) times
per twelve (12) month period. Nothing in this paragraph shall create a right of action
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in any Licensee or other Person against the City or its agents.
(d) Compliance checks shall be conducted as the Department deems appropriate so as to
allow the Department to determine, at a minimum, if the Tobacco Product Retailer is
conducting business in a manner that complies with laws regulating access to
Tobacco Products. When the Department deems appropriate, the compliance checks
shall determine compliance with other laws applicable to Tobacco Products.
13.25.130 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 relating to the sale or furnishing of tobacco or
Cigarettes to minors, or the storage or display of Cigarettes or tobacco products.
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(2) Violations of any conditions imposed by the Licensing Administrator 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;
(b) The City Manager 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 Administrator shall commence suspension or revocation proceedings
by petitioning the Hearings Officer to issue an order to the Licensee to show cause
why the Licensee's License(s) 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 or more grounds exist pursuant to
subsection (a) 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 order 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 Rule 106(a)(4) of the Colorado Rules
of Civil Procedure. The standard of proof at such hearings shall be a preponderance
of the evidence and the burden of proof shall be upon the Licensing Administrator
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
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(6) Previous sanctions, if any, imposed on the Licensee.
13.25.140 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 including but not limited to C.R.S. sections 18-13-121 and 24-35-
503, the Hearing Officer may consider the following non-binding guidelines in
detennining the sanctions to be imposed upon a Licensee as follows:
(1) One violation within thirty-six (36) months: a civil penalty of five hundred dollars
($500) and/or suspension of the License for three (3) days.
(2) Two violations within thirty-six (36) months: a civil penalty of one thousand
dollars ($1,000) and suspension of the License for seven (7) days.
(3) Three violations within thirty-six (36) months: a civil penalty of one thousand five
hundred dollars ($1,500) and a minimum twenty (20) days suspension of the
License.
(4) Four violations within thirty-six (36) months: a civil penalty of two thousand
dollars ($2,000) and revocation of 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.
(b) After the effective date of this ordinance, it shall be unlawful for any Tobacco
Product Retailer to sell a 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 $2,500 for each separate Tobacco Product sold
during the period of non-compliance with this Chapter. A retailer whose License has
been suspended or revoked 1) shall not display Tobacco Products in public view
during the timeframe in which the License is suspended or revoked; and 2)
advertisements relating to Tobacco Products that promote the sale or distribution of
such products from the location that could lead a reasonable person to believe that
such products can be obtained from that location shall not be displayed.
13.25.150 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.
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(b) 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.
13.25.160 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.
13.25.170 Effective Date.
This Chapter shall become effective as of January 1, 2018 and enforceable on and after that date.
Any Tobacco Product Retailer without a License after the effective date will be in violation of
this Chapter.
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.
Section 4: Public Hearing
A public hearing on the ordinance shall be held on the 12'h day of June, 2017 in the City Council
Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which hearing a.public
notice of the same was published in a newspaper of general circulation within the City of Aspen.
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INTRODUCED, READ AND ORDERED PUBLISHE7 d by law, y the City
Council of the City of Aspen on the 8`h day of May, 2015.
Steven-Skad on, Mayor
QST: �
A
Linda Manning, City Cmcrk
FINALLY, adopted, passed and approved this 12- day odL-4AC2017.
Steven Ska on, Mayor
ATTEST:
Linda Manning, City Cler
APPROVED AS TO FORM:
Jan/ R. True, City Attorney
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