G-1013 - 11/12/2013 - POLICE DEPARTMENT - Ordinances Supporting Documents ITEM 1 0.11.1)
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AGENDA ITEM
Regular Board of Trustees Meeting
of
November 12, 2013
SUBJECT: Alternative Nicotine Products
FROM: James R. Kruger, Chief of Police
BUDGET SOURCE/BUDGET IMPACT: None
RECOMMENDED MOTION: Motion to approve Ordinance G-1013, an ordinance
amending Title 4, Chapter 6 of the Village Code relating to the sale and possession of
alternative nicotine products.
Background/History:
Over the past several years, the use of alternative nicotine products or "e-cigarettes" has become
increasingly popular. While these instruments are not considered cigarettes by definition, they
do possess a quantity of nicotine that is ingested and are used primarily by individuals in
smoking cessation programs or those wishing to smoke where it is now prohibited under the
Smoke Free Illinois Act. There is a significant amount of research pertaining to the ill effects of
nicotine ingestion and both the National Institute of Health and the Food and Drug
Administration published warnings on the dangers of alternative nicotine products, especially as
they relate to young people. The manufactures also flavor the nicotine vapor with other fruit or
candy like flavors to enhance their appeal.
The Illinois General Assembly has enacted Public Act 98-0350, going into effect January 1,
2014, to prohibit the distribution or sale of alternative nicotine products to anyone under the age
of eighteen (18). However, the law does not regulate possession by a minor or control which
establishments may sell the item. The Police Department believes this to be an important health
issue to the children in our community and would like to take the law a step further. We would
request that our ordinance on the possession, sale and licensing of tobacco retailers be amended
in order to give us the tools to appropriately enforce the intent of the General Assembly to limit
the use of these products by children. The proposed amendment goes further in that it regulates
that only licensed tobacco retailers may sell alternative nicotine products. The Village Attorney
has prepared the attached ordinance for your consideration. Public Act 98-0350 is also attached
for your review.
Recommendation:
The Police Department requests the Village Board's review and consideration of the proposed
amendment to the ordinance.
10/23113 Illinois General Assembly-Full Tod of Public Act 098-0350
Public Act 098-0350
SB1756 Enrolled LRB098 05213 RLC 40473 b
AN ACT concerning criminal law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Prevention of Tobacco Use by Minors and Sale
and Distribution of Tobacco Products Act is amended by changing
Section 2 and adding Section 1 . 5 as follows:
(720 ILLS 675/1 .5 new)
Sec. 1.5. Distribution of ..alternative nicotine products -to
persons under 1.8 years of age -prohibited...-
(a) For the Purposes of this Section "alternative nicotine
product" means a-product or device not consisting of or
containino tobacco that Provides for the ingestion into the
body of n.i.c.otine, whether by chewing, smoking, absorbing,_
dissolving, ....inhaling, snorting, sniffing or by any other
means. "Alternative nicotine product" excludes cigarettes,
smokeless tobacco, or other tobacco products as these terms are
defined in Section I of this Act and any product approved b
the United States Food and Drug ...Administration as a non-tobacco
product_for sale as a tobacco cessation product, as a tobacco
dependence E2roduct, or for other medical purposes, and is being
marketed and sold. soled y for that approved Purpose.
fib) A person, either directly or indirectly by an agent or
employee, or by a vending machine owned by the person or
located in the person' s establishment, may not sell, offer for
sale, give., or furnish any alternative nicotine product_„ or any
cartridae or component of an alternative product., to a
person under 18 years of age.
(c) Before selling, offering for sale,.. crivinq,.. or
furnishing an alternative nicotine product, or any cart.ridcre or
component of an alternative nicotine product, to another
person, the person selling, offering for sale, giving, or
furnishing the alternative nicotine product shall verify that
the person is at least 18 years of age by:
(1) examining from any person that appears to be under
27 years of age a government-issued photographic
identification that establishes the person is at least 18
years of age or
(2) for sales made,..thou gh the InLernet or other remote
sales methods performing an age verification through all
independent, third—party age verification service that,,
compares,.information available from Public records to the
persona], information entered by the person during, the
ordering pr!2cess. that establishes the person is 18 years of
age or older.
vmw,jiga,goullegislatiotVpublicacts/fullte)d.asp?Nairo=098-0350&print=true&write= 1/2
10/23113 Illinois General Assembly-Full Text of Public Act 098-0350
(720 ILLS 675/2) (from Ch. 23, par. 2358)
Sec. 2. Penalties.
(a) Any person who violates subsection (a) , (a-5) or (a-6)
of Section 1 or Section 1. 5 of this Act is guilty of a petty
offense and for the first offense shall be fined $200, $400 for
the second offense in a 12-month period, and $600 for the third
or any subsequent offense in a 12-month period.
(b) If a minor violates subsection (a-7) of Section 1 he or
she is guilty of a petty offense and the court may impose a
sentence of 15 hours of community service or a fine of $25 for
a first violation.
(c) A second violation by a minor of subsection (a-7) of
Section 1 that occurs within 12 months after the first
violation is punishable by a fine of $50 and 25 hours of
community service.
(d) A third or subsequent violation by a minor of
subsection (a-7) of Section 1 that occurs within 12 months
after the first violation is punishable by a $100 fine and 30
hours of community service.
(e) Any second or subsequent violation not within` the
12-month time period after the first violation is punishable as
provided for a first violation.
(f) If a minor is convicted of or placed on supervision for
a violation of subsection (a-7) of Section 1, the court may, in
its discretion, and upon recommendation by the State' s
Attorney, order that minor and his or her parents or legal
guardian to attend a smoker' s education or youth diversion
program if that program is available in the jurisdiction where
the offender resides. Attendance at a smoker' s education or
youth diversion program shall be time-credited against any
community service time imposed for any first violation of
subsection (a-7) of Section 1 . In addition to any other penalty
that the court may impose for a violation of subsection (a-7)
of Section 1, the court, upon request by the State's Attorney,
may in its discretion require the offender to remit a fee for
his or her attendance at a smoker's education or youth
diversion program.
(g) For purposes of this Section, "smoker' s education
program" or "youth diversion program" includes, but is not
limited to, a seminar designed to educate a person on the
physical and psychological effects of smoking tobacco products
and the health consequences of smoking tobacco products that
can be conducted with a locality' s youth diversion program.
(h) All moneys collected as fines for violations of
subsection (a) , (a-5) , (a-6) , or (a-7) of Section 1 shall be
distributed in the following manner:
(1) one-half of each fine shall be distributed to the
unit of local government or other entity that successfully
prosecuted the offender; and
(2) one-half shall be remitted to the State to be used
for enforcing this Act.
(Source: P.A. 96-179, eff. 8-10-09. )
Effective Date: 1/1/2014
vmw,ilga.god legislation(publicacls/fulltexf.asp?Name=098.0350&print=true&write= 2(2
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, orga-
nized 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;
Additions are bold and double-underlined;a°'--s°r°struck through
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 PRODUCTo a product or device not consisting of or con-
taining 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 ALTERNATIVE NICOTINE PRODUCT excludes tobacco products as
_defined in this Section and any product approved by the United States Food and
rug Administration as a non-tobacco product for sale as a tobacco cessation
product, as a tobacco dependence product, or for other medical purposes. and is
being marketed and sold solely for that approved 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 of-
al-ternative nicotine products within the village without having first obtained a tebasse
dealer's license pursuant to this chapter. Such license shall be in addition to any oth-
er 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
dispensed.
C. Fee: The license fee for a tobasse 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 tobasso dealer's license shall be required notwithstanding the number
of locations from which the licensee sells tobacco products or alternative nicotine
Additions are bold and double-underlined;A-letioas aFe stfuek through
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
determine 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.
4-64: 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 Prod-
ucts 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, snort-
ing, sniffina. ingesting, absorbing, or chewing any tobacco product or alter-
native nicotine produe , provided that the possession by a person under the
age of eighteen (18) years under the direct supervision of the parent or guard-
ian 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
Minors:
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
presented with and reasonably relied upon a document which identified the
person receiving the tobacco product or alternative nicotine duct as be-
ing eighteen (18) years of age or older.
Additions are hold and double-underlined, '°'°'^^°^~°°'FU&t'"'^"^�'
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 alterna-
tive nocot"ne-modmcls,and on or upon every vending machine which offers tobacco
products or alternative nicotine nroducts for sale. Each such sign shall be plainly
visible and shall state:
SALE OF TOBACCO ACCESSORIES, AND SMOKING HERBS, AND ALTER-
NATIVE 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 ('/z") 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 nroducts within one hun-
dred feet (100') of any school, childcare facility or other building used for education or
recreational 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 necotine-mducts 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 govern-
ment.
4-6-6: Vending Machines:
A. Location: It shall be unlawful for any licensee to place a tobasGa-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
device 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.
Additions are hold and double-underlined;
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
r��•
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
Additions are bold and double-underlined;—A-letions are st+uek throu^�
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.
Gopal G. Lalmalani
Village President
PASSED THIS 12th day of November, 2013.
Ayes:
Nays:
Absent:
ATTEST:
Charlotte K. Pruss
Village Clerk
Additions are bold and double-underlined;—A-Wiens are struck t4ra g