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G-1013 - 11/12/2013 - POLICE DEPARTMENT - Ordinances ORDINANCE 2013-TO-TA-G-1013 AN ORDINANCE AMENDING TITLE 4, CHAPTER 6 OF THE VILLAGE CODE OF THE VILLAGE OF OAK BROOK RELATING TO ALTERNATIVE NICOTINE PRODUCTS WHEREAS, the Village of Oak Brook, Illinois ("Village') is a body politic and corporate, organized and existing pursuant to the Illinois Municipal Code, 65 ILCS 5/1-1-1 et seq.; and WHEREAS, Section 11-20-5 of the Illinois Municipal Code, 65 ILCS 5/11-20-5, provides the Vil- lage the authority to regulate for the public health; and WHEREAS, Section 11-19.1-11 of the Illinois Municipal Code, 65 ILCS 5/11-19.1-11, provides the Village the authority to abate operations, activities and uses causing air contamination, fumes and vapors that are offensive, nauseous, irritating, or noxious to humans; and WHEREAS, Section 11-1-1 of the Illinois Municipal Code, 65 ILCS 5/11-1-1, provides that the Vil- lage may pass and enforce all necessary police ordinances; and WHEREAS, pursuant to Title 4, Chapter 6 of the Village Code of the Village of Oak Brook, Illinois ("Village Code'), the Village regulates the sale and possession of tobacco products; and WHEREAS, recent technological advances have resulted in the sale and use of numerous alter- native nicotine products, including electronic cigarettes, to deliver nicotine into the body through methods other than use of tobacco products; and WHEREAS, significant scientific evidence exists documenting the health hazards and addictive properties of nicotine; and WHEREAS, many alternative nicotine products convert liquid nicotine into a gas that is inhaled by users of those products; and WHEREAS, the National Institute for Occupational Safety and Health and the Center for Disease Control and Prevention have prepared emergency response information addressing the dangers associ- ated with liquid nicotine, which dangers include negative effects on the nervous system and death; and WHEREAS, the Federal Drug Administration published warnings of the dangers posed by elec- tronic cigarettes, which include nicotine addiction and the appeal of alternative nicotine products to young people due to the ability to purchase the alternative nicotine products in appealing flavors (such as choco- late, strawberry and mint); WHEREAS, the American Medical Association at its annual meeting held in June of 2010 ad- dressed the risks associated with the use of electronic cigarettes and adopted a policy that recommended that electronic cigarettes be classified as a drug delivery device, subject to the FDA's regulations and ap- proval; and WHEREAS, persons under the age of eighteen years of age may not have the maturity to make independent and fully-informed decisions relating to their health care and other issues that have long term ramifications, WHEREAS, the Village President and Board of Trustees have determined that it is in the best interest of the Village and its residents to amend the Village Code to regulate alternative nicotine products as set forth in this Ordinance; Ordinance 2013-TO-TA-G-1013 Alternative Nicotine Product Licensing Page 2 of 6 NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part of, this Ordinance as the findings of the President and Board of Trustees of the Village of Oak Brook. Section 2: Amendment to Title 4, Chapter 6 of the Village Code. Chapter 6, entitled "To- bacco Products," of Title 4, entitled "Business and License Regulations," of the Village Code shall be amended further, and shall read as follows: "TOBACCO AND ALTERNATIVE NICOTINE PRODUCTS 4-6-1:DEFINITIONS For the purposes of this chapter, the following words and phrases shall have the mean- ings respectively ascribed to them: ALTERNATIVE NICOTINE PRODUCT: a product or device not consisting of or contain- ing tobacco that provides for the ingestion into the body of nicotine, whether by chewing, smoking, absorbing, dissolving, inhaling, snorting, sniffing, or by any other means. AL- TERNATIVE NICOTINE PRODUCT excludes tobacco products as defined in this Section and any product approved by the United States Food and Drug Administration as a non- tobacco product for sale as a tobacco cessation product, as a tobacco dependence prod- uct, or for other medical purposes, and is being marketed and sold solely for that ap- proved purpose. SMOKING: The holding or carrying of a lighted pipe, lighted cigar, or lighted cigarette of any kind, including the lighting of a pipe, cigar or cigarette of any kind. TOBACCO PRODUCTS: Any substance containing tobacco leaf including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco or dipping tobacco. VENDING MACHINE: Any mechanical, electric or electronic self-service device which, upon insertion of money, tokens or any other form of payment, dispenses tobacco prod- ucts or alternative nicotine products. 4-6-2: LICENSE REQUIRED; APPLICATION, FEES AND INSPECTIONS: A. License Required: It shall be unlawful to sell at retail, to give away, deliver or to keep with the intention of selling at retail, giving away or delivering tobacco products or al- ternative nicotine products within the village without having first obtained a dealer's li- cense pursuant to this chapter. Such license shall be in addition to any other license or permit required by this code. B. Application: Application for a license hereunder shall be made, in writing, to the vil- lage clerk on forms provided by the village, signed by the applicant, verified by oath or affidavit, and shall contain the following statements and information: the name and address of the applicant's business, name of owner, manager or lessee; and address of each premises where tobacco products or alternative nicotine products will be dis- pensed. C. Fee: The license fee for a dealer's license shall be one hundred dollars ($100.00). D. Term: The term of said license shall be from October 1 to September 30 of each year. Only one dealer's license shall be required notwithstanding the number of loca- tions from which the licensee sells tobacco products or alternative nicotine products. Ordinance 2013-TO-TA-G-1013 Alternative Nicotine Product Licensing Page 3 of 6 A copy of said license shall be posted in a conspicuous place wherever any tobacco product is sold. E. Inspections: The director of community development shall cause each retail vendor of tobacco products or alternative nicotine products to be inspected for compliance no less than two (2) times annually. Inspections are to be unannounced in order to de- termine if each retail vendor of tobacco products or alternative nicotine products is in compliance with this chapter. 4-6-3: LICENSE REGULATIONS: It shall be unlawful for any licensee or any officer, associate, representative, agent or employee of such licensee, to engage, employ or permit any person under eighteen (18) years of age to sell tobacco products or alternative nicotine products in any licensed premises. 4-6-4: PROHIBITED SALES, ACT: A. Purchase By Minors Prohibited: It shall be unlawful for any person under the age of eighteen (18) years to purchase tobacco products or alternative nicotine products. B. False Or Altered Identification: It shall be unlawful for any person under the age of eighteen (18) years to misrepresent that person's identity or age, or to use any false or altered identification for the purpose of purchasing tobacco products or alternative nicotine products. C. Unlawful Possession Or Use Of Tobacco Products or Alternative Nicotine Products By Minors: 1. It shall be unlawful for any person under the age of eighteen (18) to knowingly possess, consume, or use, either by smoking, inhaling, dissolving, snorting, sniffing, ingesting, absorbing, or chewing any tobacco product or alternative nicotine product, provided that the possession by a person under the age of eighteen (18) years under the 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. 2. It shall be rebuttably presumed that the substance within a package or con- tainer is a tobacco product or an alternative nicotine product if the package or container has affixed to it a label which identifies the package or container as containing a tobacco product or nicotine. D. Unlawful Furnishing Of Tobacco Products and Alternative Nicotine Products To Mi- nors: 1. It shall be unlawful for any person to furnish to any person who is under eight- een (18) years of age, by gift, sale, or any other means, any tobacco products or alternative nicotine products. 2. It shall be an affirmative defense to a prosecution under this Section that the person furnishing the tobacco product or alternative nicotine product was pre- sented with and reasonably relied upon a document which identified the per- son receiving the tobacco product or alternative nicotine product as being eighteen (18) years of age or older. Ordinance 2013-TO-TA-G-1013 Alternative Nicotine Product Licensing Page 4 of 6 4-6-5: CONDITIONS OF LICENSE A. Signage: Signs informing the public of the age restrictions provided herein shall be posted by every licensee at or near every display of tobacco products and alternative nicotine products, and on or upon every vending machine which offers tobacco prod- ucts or alternative nicotine products for sale. Each such sign shall be plainly visible and shall state: SALE OF TOBACCO ACCESSORIES, SMOKING HERBS, AND ALTERNATIVE NICOTINE PRODUCTS TO PERSONS UNDER EIGHTEEN YEARS OF AGE OR THE MISREPRESENTATION OF AGE TO PROCURE SUCH A SALE IS PROHIBITED BY LAW. Signs informing the public of the U.S. Surgeon General's health warning shall be posted by every licensee selling cigarettes at or near every display of cigarettes and on or upon every vending machine which offers cigarettes for sale. Each such sign shall be plainly visible and shall state: SURGEON GENERAL'S WARNING: SMOKING BY PREGNANT WOMEN MAY RESULT IN FETAL INJURY, PREMATURE BIRTH, AND LOW BIRTH WEIGHT The above signs shall be posted in a conspicuous place and shall be printed on white cards in red letters at least one-half inch (1/2") in height. B. Location Restrictions: It shall be unlawful for any person to sell, offer for sale, give away or deliver tobacco products or alternative nicotine products within one hundred feet (100') of any school, childcare facility or other building used for education or rec- reational programs for persons under the age of eighteen (18) years. C. Certain Free Distributions Prohibited: It shall be unlawful for any licensee or any per- son in the business of selling or otherwise distributing, promoting or advertising to- bacco products or alternative nicotine products, or any employee or agent of any such licensee or person, in the course of such licensee's or person's business, to dis- tribute, give away or deliver tobacco products or alternative nicotine products free of charge to any person on any right of way, park, playground or other property owned by the Village, or any other public body, school district or unit of local government. 4-6-6: Vending Machines: A. Location: It shall be unlawful for any licensee to place a vending machine selling or distributing tobacco products or alternative nicotine products within twenty five feet (25')from the entrance of any licensed establishment. B. Locking Devices: 1. 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 prod- ucts or alternative nicotine products by use of a vending machine, unless such vending machine is equipped with a manual, electric or electronic locking de- vice controlled by the licensee so as to prevent its operation by persons under the age of eighteen (18) years. 2. 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 a busi- ness located at such premises, shall be exempt from the requirements of this Section. Ordinance 2013-TO-TA-G-1013 Alternative Nicotine Product Licensing Page 5 of 6 4-6-7: RESPONSIBILITY FOR AGENTS AND EMPLOYEES: Every act or omission of whatsoever nature, constituting a violation of any of the provi- sions of this Chapter 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 punishable in the same manner as if such act or omission had been done or omitted by the licensee personally. 4-6-8: SUSPENSION OR REVOCATION A. Enforcement: The Village President shall be charged with the administration of this Chapter. B. Violations, Remedies: The Village President may suspend or revoke any license is- sued under the provisions of this Chapter, if it is determined the licensee has violated any of the provisions of this Chapter. In lieu of suspension or revocation of a license, the Village President may instead levy a fine on the licensee. The fine imposed shall not exceed the general penalty in Section 1-3-1 of this Code for each violation. Each day on which a violation continues shall constitute a separate violation. C. Procedures: 1. No such license shall be suspended or revoked and no licensee shall be fined except after a public hearing by the Village President with not less than a sev- en (7) day written notice to the licensee affording the licensee an opportunity to appear and defend against the charges contained in such notice. The sev- en (7) day notice provisions shall begin the day following delivery by certified mail or by personal service. 2. The Village President shall, within fourteen (14) days after such hearing, if it is determined after such hearing that the license should be revoked or suspend- ed, or that the licensee should be fined, state the reason for such determina- tion in a written order and either the amount of the fine, the period of suspen- sion or that the license has been revoked, and serve a copy of such order within the seven (7) days upon the licensee. 3. Any licensee determined by the Village President to have violated any of the provisions of this Chapter shall pay to the Village the costs of the hearing be- fore the Village President on such violation. The Village President shall de- termine the cost incurred by the Village for said hearing, including, but not lim- ited to: court reporter fees, the costs of transcripts or records, the cost of pre- paring and mailing notices and orders and all other miscellaneous expenses incurred by the Village or such lesser sum as the Village President may allow. The licensee shall pay said costs to the Village within thirty (30) days of notifi- cation of the costs by the Village President. Failure to pay said costs within thirty (30) days of notification is a violation of this Chapter and may be cause for license suspension or revocation, or the levy of a fine. D. Period Of 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 or alternative nicotine prod- ucts. Section 3: Severability. If any provision of this Ordinance or part thereof is held invalid by a court of competent jurisdiction, the remaining provisions of this Ordinance shall remain in full force and Ordinance 2013-TO-TA-G-1013 Alternative Nicotine Product Licensing Page 6 of 6 effect, and shall be interpreted, applied, and enforced so as to achieve, as near as may be, the purpose and intent of this Ordinance to the greatest extent permitted by applicable law. Section 4: Effective Date. This Ordinance shall be in full force and effect from and after its passage, approval, and publication in the manner provided by law. APPROVED THIS 12th day of November, 2013. r l i Gopal G. Lalmalani Village President PASSED THIS 12th day of November, 2013. Ayes: Trustees Adler, Baar, Manzo, Moy, Wolin, Yusuf Nays: None Absent: None ATTEST: 3rx a y�r I s Charlotte K. Pruss Village Clerk 4 t