(1) Sales to minors prohibited; mandatory identification; warning signs.
(a) It shall be unlawful for any person, including any retail business, to sell or furnish by gift, purchase or other means any cigarette or other tobacco product to any person under the age of eighteen (18) years.
(b) No person shall sell any cigarette or other tobacco product unless the purchaser either: 903
(.1) demonstrates proof of legal age by means of a photographic identification card issued by a government entity; or
(.2) reasonably appears to be at least twenty-seven years of age.
(c) Defenses. 904
(.1) It shall be a defense to a charge of unlawful sale to a person under eighteen (18) years of age that the seller reasonably relied on photographic identification pursuant to the preceding subsection (b), notwithstanding the fact the identification relied upon is subsequently proven to be fake. Reliance will be presumed not reasonable if the identification does not contain all of the following: a photo likeness, birth date, expiration date and signature; or if it contains bumps, tears or other damage.
(.2) It shall not be a defense to a charge of unlawful sale to a person under eighteen (18) years of age that the purchaser reasonably appeared to be at least twenty-seven years of age.
(d) Warning Signs.
(.1) Every retail outlet that sells cigarettes or other tobacco products shall post in a conspicuous place, clearly visible from any point of sale, a Warning Sign, as described below.
(.2) Every cigarette vending machine shall conspicuously bear a Warning Sign, as described below. The proprietor of the establishment in which such machine is placed, and the vending machine operator, as defined by state law, shall be jointly responsible and liable to assure the display of such sign.
(.3) The Warning Sign shall state the following: "SALE OF CIGARETTES AND OTHER TOBACCO PRODUCTS TO PERSONS UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW. PHOTO I.D. WILL BE REQUIRED. THIS LAW WILL BE STRICTLY ENFORCED." Such sign shall be printed on a white card in red letters at least one-quarter inch in height, or in such other format as the Department of Licenses and Inspections shall allow by regulation.
(2) Out-of-package sales prohibited. It shall be unlawful for any person, including any retail dealer, to sell or offer for sale any cigarette or other tobacco product, other than in the package, box, carton or other container provided by the manufacturer, importer or packager which bears a health warning required by federal law.
(3) Self-service sales prohibited.
(a) Any person, including any retail dealer, who sells any cigarettes or other tobacco products, shall store or display such products in a locked case or in a storage case or display accessible only to the seller.
(.1) This subsection shall not apply to open or free standing counter-top displays, provided that the counter-top display is three (3) feet of a staffed and operational check out register.
(b) No person selling cigarettes or other tobacco products shall allow anyone other than the seller or the seller's agent to physically remove any such product or its package from its storage or display case.
(c) Nothing in this subsection shall prohibit the storage, display, or sale of cigarettes in or from a properly licensed vending machine.
(d) Nothing in this subsection shall prevent sales by one licensed cigarette dealer to another licensed cigarette dealer, provided that neither dealer is the ultimate consumer of the product.
(4) Specialty Tobacco Stores. Notwithstanding the foregoing, subsection (2) relating to out-of-package sales and subsection (3) relating to self-service sales shall not apply to any retail store commonly known as a "specialty tobacco store", the primary business of which is the sale of tobacco or tobacco-related products.
(a) It shall be unlawful for any retail business to sell or furnish by gift, purchase or other means any of the following:
(.1) any cigarette, cigar, tiparillo, cigarillo or other tobacco product, singly or in packages of fewer than three or other than in the package, box, carton or other container provided by the manufacturer, importer or packager which bears a health warning required by federal law, except that hotels, restaurants that seat at least 25 patrons, and specialty tobacco stores (as defined in subsection 9-622(4)) may sell in small quantities cigars for which the retail price is at least one dollar ($1.00) per cigar;
(.2) cigar or cigarette rolling papers;
(.3) any tobacco item that can be considered "drug paraphernalia" under Section 9-629;
(.4) any flavored tobacco item including any flavored cigarette, cigar, tiparillo, cigarillo or other tobacco product, except that the term "tobacco product" shall not include a package of loose tobacco, snuff, chewing tobacco, dipping tobacco, or pipe tobacco, where the package is that provided by the manufacturer, importer or packager which bears a health warning required by federal law, and provided that this subsection (.4) shall not apply to cigarettes in packages of 20 or more included in the directory published pursuant to Section 301 of the Pennsylvania Tobacco Product Manufacturer Directory Act, 35 P.S. § 5702.301.
(6) Enforcement and Penalties. 906
(a) Whenever any officer with authority to enforce ordinances, including for purposes of this Section any Department of Public Health or Department of Licenses and Inspections inspector, becomes aware of a violation of this Section, such officer shall hand or deliver to the violator a printed notice of violation. If the violator is a retail outlet, the officer shall hand or deliver the notice to the manager of the outlet or an on-site supervisor. Such notice shall bear the date, time and nature of the violation, when known; the identity and address of the violator; the amount to be remitted in response to the notice; and the penalty which can be imposed by the court for the violation; and shall be signed by the person issuing the notice and shall bear the badge number or other official identification number of the officer issuing the notice.
(b) Any person who receives a notice of violation may, within ten (10) days, pay two hundred fifty dollars ($250), admit the violation, and waive appearance before a Municipal Court Judge. The notice of violation shall contain an appropriate statement for signature by the violator for the purpose of admitting the violation and waiving a hearing, and shall be returned by the violator when the stipulated payment is remitted. Payment of the fine alone shall constitute admission of the violation, whether or not the violator signs the statement. 907
(c) If a person who receives a notice of violation fails to make the prescribed payment within ten (10) days of the issuance of the notice of violation, a code enforcement complaint shall be issued for such violation in such manner as provided by law.
(d) If the person named in a code enforcement complaint is found to have violated any provision of this Section or fails to appear on the date set for hearing, such person shall be subject to a maximum fine of two thousand dollars ($2,000) for each such violation, or such lesser fine (not less than three hundred dollars ($300)) as the court deems appropriate given the relative wilfulness or repetitiveness of the violation, plus the imposition of court costs. Such a complaint may be issued irrespective of whether a notice of violation was previously issued for such violation. 908
(.1) Any and all cigarette vending machines located at such location or within such establishment shall be removed by the owner of such machine, and no person shall install or maintain any cigarette vending machine at such location or in such establishment. For purposes of this subsection, a cigarette-sales violation shall be any violation of this Section; or any violation of Section 9-2102, relating to cigarette vending machines. The Department of Licenses and Inspections may remove any machine maintained in violation of this Section and may bill the owner of the establishment where such machine is located or the owner of the machine for the cost of removal. 910
(.2) If the violations occurred within a two year period, the person shall also be subject, depending on the severity of the violations, to an order of the Department to either (.a) cease the sale of cigarettes, electronic smoking devices and unauthorized nicotine delivery products; or (.b) cease operations. Such order shall be for a period not less than forty-eight (48) hours and not to exceed one year, at the Department's discretion, based on the severity of the violations. 911
For purposes of this subsection (e), multiple violations shall be considered to have occurred at a single location or within a single business establishment, even if ownership of the location or business has been transferred between the time of violations, unless the transfer was pursuant to an arm's length transaction for fair market value between two unrelated persons or unaffiliated companies.
(.1) Any person who violates the provisions of subsection 9-622(5) shall be subjected to a fine of not less than three hundred dollars ($300) and not more than seven hundred dollars ($700) for each violation committed during calendar year 2005; one thousand one hundred dollars ($1,100) for each violation committed during calendar year 2006; one thousand five hundred dollars ($1,500) for each violation committed during calendar year 2007; one thousand nine hundred dollars ($1,900) for each violation committed during calendar year 2008; and two thousand dollars ($2,000) for each violation committed thereafter;
Notes
| 902 | Added, Bill No. 732 (approved December 28, 1995), 1995 Ordinances, p. 1522. Enrolled bill numbered this as Section 9-620; renumbered by Code editor. |
| 903 | Amended, Bill No. 100634 (approved December 15, 2010). |
| 904 | Amended, Bill No. 100634 (approved December 15, 2010). |
| 905 | Added, Bill No. 060345-AAA (approved January 23, 2007). Subsections 9-622(5)(a) and 9-629(2) were invalidated by the Supreme Court of Pennsylvania. See Holt's Cigar Co., Inc. v. City of Philadelphia, 10 A.3d 902, 914 (Pa. 2011). |
| 906 | Renumbered, Bill No. 060345-AAA (approved January 23, 2007). |
| 907 | |
| 908 | Amended, Bill No. 100634 (approved December 15, 2010). |
| 909 | |
| 910 | Added, Bill No. 960367-A (approved June 23, 1998). Bill No. 960367-A cited to Section 9-2002, which has been renumbered to 9-2102 by the Code editor. Section 3 of Bill No. 960367-A read: "This Ordinance shall be effective one hundred eighty (180) days after enactment." |
| 911 | Amended, Bill No. 140096 (approved April 9, 2014). |
| 912 | Added, Bill No. 060345-AAA (approved January 23, 2007). |
| 913 | Amended, Bill No. 110758 (approved December 21, 2011), effective May 1, 2012. |