537.16 ILLEGAL DISTRIBUTION OF CIGARETTES, TOBACCO PRODUCTS, OR VAPOR PRODUCTS AND POSSESSION AND USE BY MINORS.

   (a)   Definitions.

      (1)   “Cigarettes” include any roll for smoking made wholly or in part of tobacco, irrespective of size or shape, and whether or not such tobacco is flavored, adulterated or mixed with any other ingredient, the wrapper or cover of which is made of paper, reconstituted cigarette tobacco, homogenized cigarette tobacco, cigarette tobacco sheet or any similar materials.

      (2)   “Tobacco products” means any product that is made or derived from tobacco or that contains any form of nicotine, if it is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled or ingested by any other means, including, but not limited to, a cigarette, an electronic smoking device, a cigar, pipe tobacco, chewing tobacco, snuff, or snus. “Tobacco product” also means any component or accessory used in the consumption of a tobacco product, such as filters, rolling papers, pipes, blunt or hemp wraps, and liquids used in electronic smoking devices, whether or not they contain nicotine. “Tobacco product” does not include any product that is a drug, device, or combination product, as those terms are defined or described in 21 U.S.C. 321 and 353(g).

      (3)   “Vapor product” means a product, other than a cigarette or other tobacco product as defined in Ohio R.C. Chapter 5743 that contains or is made or derived from nicotine and that is intended and marketed for human consumption, including by smoking, inhaling, snorting or sniffing. “Vapor product” includes any component, part, or additive that is intended for use in an electronic smoking device, a mechanical heating element, battery or electronic circuit and is used to deliver the product. “Vapor product” does not include any product that is a drug, device or combination product, as those terms are defined or described in 21 U.S.C. 321 and 353(g). “Vapor product” includes any product containing nicotine regardless of concentration.

         A.   “Electronic smoking device” or “electronic nicotine delivery system” means noncombustible tobacco products, including vapes, vaporizers, vape pens, hookah pens, electronic cigarettes (also known as “e-cigarettes” or “e-cigs”), and e-pipes that deliver an aerosolized or vaporized e-liquid that may contain nicotine, as well as varying compositions of flavorings, propylene glycol, vegetable glycerin, and other ingredients.

         B.   “Component, part or additive” with respect to an electronic nicotine delivery system, means the objects intended or reasonably expected to be used with, or for, the human consumption of a tobacco product that are not accessories.

      (4)   “Sale” includes delivery, barter, exchange, transfer or gift, or offer thereof and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee.

      (5)   “Possess” or “possession” means having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.

      (6)   As used in this section, “vending machine” has the same meaning as “coin machine” as defined in Section 545.01.

   (b)   Sale to a Person under Twenty-One (21) Prohibited.

      (1)   “Person Under Twenty-one (21)” means a natural person who has not yet reached the age of twenty-one (21) years of age.

      (2)   No manufacturer, producer, distributor, wholesaler or retailer of cigarettes, tobacco products, or vapor products as defined in this section, or any other agency, employee, representative of a manufacturer, producer, distributor, wholesaler or retailer of cigarettes, tobacco products, or vapor products as defined in this section shall do any of the following:

         A.   Give, sell or otherwise distribute cigarettes, tobacco products, or vapor products as defined in this section to a Person Under Twenty-One (21);

         B.   Give away, sell or distribute cigarettes, tobacco products, or vapor products, as defined in this section in any place that does not have posted in a conspicuous place a sign stating the giving, selling or otherwise distributing cigarettes, tobacco products, or vapor products as defined in this section to a Person Under Twenty-one (21) is prohibited by law.

   (c)   Sales from Vending Machines.

      (1)   No person shall sell or offer to sell cigarettes, tobacco products, or vapor products as defined in this section, by or from a vending machine except in the following locations:

         A.   An area either:

            1.   Within a factory, business, office or other place not open to the general public; or

            2.   To a Person Under Twenty-one (21) is not generally permitted access;

         B.   In any other place not identified in subsection (b)(1) hereof, upon all of the following conditions:

The vending machine is located within the immediate vicinity, plain view and control of the person who owns or operates the place, or an employee of such person, so that all cigarettes and other tobacco product purchases from the vending machine will be readily observed by the person who owns or operates the place or any employee of such person. For the purpose of this section, a vending machine located in any unmonitored area, including an unmonitored coatroom, restroom, hallway or outer waiting area, shall not be considered located within the immediate vicinity, plain view and control of the person who owns or operates the place, or an employee of such person.

         C.   The vending machine is inaccessible to the public when the place is closed.

   (d)   Posting Age Warning Signs.

      (1)   Every person in control of any place within the City where cigarettes, tobacco products, or vapor products as defined in this section are sold, whether by a person or by a vending machine, shall display at all times, in a prominent place on the premises thereof, or in a prominent place on such cigarettes, tobacco products or vapor products vending machine a printed sign which shall read substantially as follows:

         “WARNING TO PERSONS UNDER AGE”

         If you are under the age of twenty-one (21) and if you order, pay for, share the cost of, attempt to purchase, possess or use any cigarettes, tobacco products, or vapor products as defined in this section, or if you furnish false information as to your name, age or other identification, you are subject to punishment in the Juvenile Court of Summit County, Ohio, or court having proper jurisdiction.

      (2)   No person selling cigarettes, tobacco products, or vapor products as defined in this section shall fail to comply with this section.

   (e)   Responsibility of Owner, Lessee, Agent or Employee. No owner or lessee of a building or premises, no owner or lessee of a cigarettes, tobacco products, or vapor products vending machine, or their employees or agent shall knowingly allow or permit cigarettes or other tobacco products to be sold, distributed or given away in violation of the provisions of this section.

   (f)   Possession and Use by Persons Under Twenty-one (21) Prohibited.

      (1)   No person shall give, sell, transfer or otherwise distribute cigarettes, tobacco products, or vapor products as defined in this section to a Person Under Twenty-one (21).

      (2)   No Person Under Twenty-one (21) shall smoke, use or possess cigarettes, tobacco products, or vapor products as defined in this section.

      (3)   No Person Under Twenty-one (21) shall order, pay for, purchase, share the cost of or attempt to purchase cigarettes, tobacco products, or vapor products as defined in this section.

      (4)   No Person Under Twenty-one (21) shall knowingly show or give false information concerning his name, age or other identification for the purpose of purchasing or otherwise obtaining cigarettes, tobacco products or vapor products as defined in this section in any place in the City where cigarettes, tobacco products or vapor products as defined in this section are sold.

      (5)   No person shall knowingly furnish any false information as to the name, age or other identification any Person Under Twenty-one (21) for the purpose of obtaining, or with the intent to obtain, cigarettes, tobacco products, or vapor products as defined in this section for a Person Under Twenty-one (21), by purchase or as a gift.

   (g)   Immunity. No person may be found guilty of violation of the provisions of this chapter where age is an element of the offense, if any court determines that the individual buying, at the time of so doing, exhibited to the aforesaid person, his agent or employee, a driver’s license or commercial driver’s license showing that such individual was then of legal age to buy cigarettes, tobacco products or vapor products as defined in this section; and if such person made a bona fide effort to ascertain the true age of the individual buying by checking the identification presented at the time of purchase; to ascertain that the description of the identification presented compared with the visual description of the buyer and identification presented had not been altered in any way and if the aforesaid person had reason to believe that the individual buying was of legal age.

   (h)   Penalty.

      (1)   Whoever violates subsections (b), (c), (d) or (e) hereof is guilty of illegal distribution of cigarettes, tobacco products or vapor products as defined in this section, a misdemeanor of the fourth degree. If the offender previously has been convicted of a violation of any division of this section, then illegal distribution of cigarettes, tobacco products or vapor products as defined in this section is a misdemeanor of the third degree.

      (2)   Whoever violates subsection (f) hereof is guilty of underage tobacco prohibition, a minor misdemeanor. If the offender previously has been convicted of a violation of this section they shall be guilty of a misdemeanor of the fourth degree.

         (Ord. 78-2020. Passed 12-10-20.)