(A) Definition. For the purpose of this section, the following definition applies unless the context clearly requires a different meaning.
TOBACCO VENDING MACHINE. Includes any machine or device designated for use or used for the vending of cigarettes, cigars, tobacco or tobacco products upon the insertion of coins, trade, checks or slugs.
(B) Sale and furnishing of tobacco products to minors.
(1) Prohibition. It is unlawful for any person to sell or furnish in any manner any tobacco product to any person under the age of 18 or to purchase in any manner a tobacco product on behalf of any such person. It shall not be unlawful for an employee under 18 years of age to handle tobacco products when required in the performance of the employee’s duties.
(2) Proof of age.
(a) A person engaged in the sale or distribution of tobacco products shall demand proof of age from a prospective purchaser or recipient if an ordinary person would conclude on the basis of appearance that the prospective purchaser may be under 18 years of age.
(b) Proof of age includes a driver’s license or other government-issued photo identification purporting to establish that the purchaser was 18 or older, and the defendant confirmed the validity of the driver’s license or other government-issued photo identification presented by the purchaser by performing a transaction scan by means of a transaction device.
(c) Proof that the defendant demanded, was shown and reasonably relied upon proof of age shall be a defense, provided, however, that this defense is not available if said defendant failed to exercise reasonable diligence to determine whether the physical description and picture appearing on the license or identification used was that of the person who presented it.
(C) Tobacco vending machines. It shall be unlawful for the owner or manager of any building or business, or any other person in lawful possession or control of the space upon which a tobacco vending machine sits, to permit or allow to be operated a tobacco vending machine unless:
(1) The machine is located in an area not accessible to persons under 18 years of age; or
(2) (a) The machine is located in a workplace where the general public is not usually admitted and where such machines are for the use of the employees therein.
(b) In such cases, it shall be the responsibility of the owner or manager of any building or business and any other person in lawful possession of said machine to bar access to the machine by persons under 18 years of age.
(D) Display of tobacco age restriction signage.
(1) Verbiage. Any person who sells or displays tobacco products at retail must post conspicuously at the place of business a sign stating the following.
It is the law. We do not sell tobacco products to persons under 18 years of age. |
(2) Number for reporting. This sign shall also provide a toll-free telephone number for the purpose of reporting violations of the Prevention of Youth Access to Tobacco Act, being 63 O.S. §§ 1-229.1 et seq.
(E) Public access to tobacco products.
(1) Prohibition. It is unlawful for any person to display or offer for sale tobacco products in any manner which allows public access to the tobacco product without assistance from the person displaying the tobacco product or an employee or owner of the store.
(2) Exception. If the business does not admit into the store persons under 18 years of age, then this division (E) does not apply.
(F) Tobacco paraphernalia. It is unlawful for any person to sell, give or furnish in any manner to a person under the age of 18 years any material or device used in the smoking, chewing or other method of consumption of tobacco, including cigarette papers, pipes, holders of smoking materials of all types and other items designed primarily for the smoking or ingestion of tobacco products.
(G) Vapor products.
(1) Definitions. For the purpose of this division (G), the following definitions apply unless the context clearly requires a different meaning.
CIGARETTE.
1. Any product which contains nicotine, is intended to be burned or heated under ordinary conditions of use and consists of or contains:
a. Any roll of tobacco wrapped in paper or in any substance not containing tobacco; or
b. Tobacco, in any form, that is functional in the product which, because of its appearance, the type of tobacco used in the filter or its packaging and labeling, is likely to be offered to or purchased by consumers as a cigarette.
2. The term CIGARETTE includes “roll your own,” that is, any tobacco which, 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. For the purpose of this definition of CIGARETTE, nine one-hundredths of an ounce of “roll your own” tobacco shall constitute one individual CIGARETTE.
PERSON. Any individual, firm, fiduciary, partnership, corporation, trust or association, however formed.
PROOF OF AGE. A driver’s license, license for identification only or other generally-accepted means of identification which describes the individual as 18 years of age or older, contains a photograph or other likeness of the individual and appears on its face to be valid.
SAMPLE. A tobacco product or vapor product distributed to members of the public at no cost for the purpose of promoting the product.
SAMPLING. The distribution of samples to members of the public in a public place.
TOBACCO PRODUCT. Any product which contains or is derived from tobacco and is intended for human consumption, excluding drugs or devices approved for cessation by the U.S. Food and Drug Administration. This includes e-cigarettes and vapor products, with or without nicotine.
TRANSACTION SCAN. The process by which a seller checks, by means of a transaction scan device, the validity of a driver’s license or other government-issued photo identification.
TRANSACTION SCAN DEVICE. Any commercial device or combination of devices used at a point of sale or entry which is capable of deciphering in an electronically-readable format the information encoded on the magnetic strip or bar code of a driver’s license or other government-issued photo identification.
VAPOR PRODUCT. Noncombustible products which may or may not contain nicotine that employ a mechanical heating element, battery, electronic circuit or other mechanism, regardless of shape or size, which can be used to produce a vapor in a solution or other form. VAPOR PRODUCTS shall include any vapor cartridge or other container, with or without nicotine, or other form which is intended to be used with an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe or a similar product or device. VAPOR PRODUCTS do not include any products regulated by the U.S. Food and Drug Administration under Ch. V of the Food, Drug and Cosmetic Act, being 21 U.S.C. §§ 301 et seq.
(2) Furnishing or sale of tobacco and vapor products to minors.
(a) It is unlawful for any person to sell, give or furnish in any manner any tobacco, tobacco product or vapor product to another person who is under 18 years of age or to purchase in any manner tobacco, a tobacco product or vapor product on behalf of any such person.
(b) It shall not be unlawful for an employee under 18 years of age to handle tobacco, tobacco products or vapor products when required in the performance of the employee’s duties.
(c) A person engaged in the sale or distribution of tobacco, tobacco products or vapor products shall demand proof of age from a prospective purchaser or recipient if an ordinary person would conclude on the basis of appearance that the prospective purchaser may be less than 18 years of age. If an individual engaged in the sale or distribution of tobacco, tobacco products or vapor products has demanded proof of age from a prospective purchaser or recipient who is not under 18 years of age, then the failure to subsequently require proof of age shall not constitute a violation of this division (G)(2).
(d) Proof that the defendant demanded, was shown and reasonably relied upon proof of age shall be a defense to any action brought pursuant to this division (G)(2). A person cited for violating this division (G)(2) shall be deemed to have reasonably relied upon proof of age, and such person shall not be found guilty of the violation, if such person proves that:
1. The individual who purchased or received the tobacco product or vapor product presented a driver’s license or other government-issued photo identification purporting to establish that such individual was 18 years of age or older; or
2. The person cited for the violation confirmed the validity of the driver’s license or other government-issued photo identification presented by such individual by performing a transaction scan by means of a transaction scan device, provided that this defense shall not relieve from liability any person cited for a violation of this division (G)(2) if the person failed to exercise reasonable diligence to determine whether the physical description and picture appearing on the driver’s license or other government-issued photo identification was that of the individual who presented it. The availability of the defense described in this division (G)(2)(c) does not affect the availability of any other defense under any other provision of law.
(3) Receipt of tobacco and vapor products by minors. It is unlawful for any person who is under 18 years of age to have in his or her possession a tobacco product or vapor product or to present or offer to any person any purported proof of age which is false or fraudulent for the purpose of purchasing or receiving any tobacco product or vapor product. It shall not be unlawful for an employee under 18 years of age to handle tobacco products or vapor products when required in the performance of the employee’s duties.
(4) Distribution of tobacco and vapor product samples.
(a) It shall be unlawful for any person or retailer to distribute tobacco, tobacco products, tobacco or tobacco product samples or vapor product samples to any person under 18 years of age.
(b) No person shall distribute tobacco, tobacco product samples or vapor product samples in or on any public street, sidewalk or park which is within 300 feet of any playground, school or other facility when the facility is being used primarily by persons under 18 years of age.
(5) Public access to displayed tobacco and vapor products. It is unlawful for any person or retail store to display or offer for sale tobacco products or vapor products in any manner which allows public access to the tobacco products or vapor products without assistance from the person displaying the tobacco products or vapor products or an employee or the owner of the store. The provisions of this division (G)(5) shall not apply to retail stores which do not admit into the store persons under 18 years of age.
(6) Report of violations; compliance checks.
(a) Any conviction for a violation of this division (G) and any compliance checks conducted by the Police Department pursuant to division (G)(6)(b) below shall be reported in writing to the Alcoholic Beverage Laws Enforcement (ABLE) Commission within 30 days of the conviction or compliance check. Such reports shall be compiled in the manner prescribed by the ABLE Commission. Convictions shall be reported by the Court Clerk or his or her designee and compliance checks shall be reported by the Police Chief or his or her designee.
(b) Persons under 18 years of age may be enlisted by the Police Department to assist in the enforcement of this division (G) pursuant to the rules of the ABLE Commission.
(Prior Code, § 10-310) (Ord. 2014-03, passed 10-14-2014) Penalty, see § 131.99