(a) Definitions. As used in this section:
(1) “Distribute” means to furnish, give or provide tobacco products to the ultimate consumer of the tobacco product.
(2) “Permit” means an annual permit issued by the City or the City’s permitting agent for retail sale of tobacco products pursuant to division (c) of this section.
(3) “Permittee” means the holder of a valid permit under this section.
(4) “Permitting agent” means an entity with which the City of South Euclid has contracted to administer permit applications, enforcement, and/or provisions contained in this section.
(5) “Person under 21” means a natural person who has not yet reached the age of 21 years.
(6) “Proof of age” means a driver’s license, a commercial driver’s license, a military identification card, a passport, or an identification card issued under R.C. §§ 4507.50 to 4507.52 that shows that a person is 21 years of age or older and not a person under 21.
(7) “Tobacco product” means any product that is made from tobacco or derived from tobacco or that contains nicotine, whether natural or synthetic, that is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, snorted, sniffed, absorbed, dissolved, inhaled or ingested by any other means, including, but not limited to, cigarettes, e-liquids, cigars, little cigars, pipe tobacco, chewing tobacco, snuff, or snus. “Tobacco product” also means electronic devices, including any device that can be used to deliver aerosolized or vaporized nicotine or any other substance to the person inhaling from the device including, but not limited to, e-cigarettes, ecigars, e-pipes, vapor products, or e-hookahs. “Tobacco product” includes any component, part, or accessory used in the consumption of tobacco products, whether or not it contains nicotine including, but not limited to, filters, cartridges, pods, pens, rolling papers, or pipes. “Tobacco product” does not include any of the following:
A. Any product that is a “drug” as that term is defined in 21 U.S.C. 321(g)(1); or
B. Any product that is a “device” as that term is defined in 21 U.S.C. 321(h); or
C. Any product that is a “combination product” as described in 21 U.S.C. 353(g).
(b) Sale to Persons Under 21 Prohibited.
(1) No permittee or agent of permittee shall sell or otherwise distribute to any person under 21 any tobacco product within the City.
(2) Before selling or otherwise distributing any tobacco product to another person, the person selling or distributing the tobacco product shall verify the age of any person who appears to be under 30 years of age by a proof of age.
(3) No person shall sell or otherwise distribute tobacco products by or from a vending machine except in an area within a business office, or other place not open to the general public or in an area to which persons under 21 are not permitted.
(4) It shall not be a violation of this section to sell or otherwise distribute any product that has been approved as a tobacco cessation aid by the United States Food and Drug Administration.
(c) Annual Permit Required.
(1) No person shall engage in retail sales or distribution of tobacco products within the City without a valid permit issued by the City or its permitting agent.
(2) The following items shall be required in applying for a permit, or renewing a permit under this section:
A. A valid vendor’s license from the Ohio Department of Taxation;
B. If applicable, a license required by R.C. Chapter 5743;
C. The location where the permit applicant proposes to engage in retail sales of tobacco products;
D. A nonrefundable permit administration fee not less than $100.00; and
E. Such other information as determined by the City or its permitting agent to be necessary to administer the permitting system provided herein and to effectuate the purposes of this section.
(3) The fee for a permit shall be initially set, and subsequently reviewed and adjusted, by the City or its permitting agent. Permit fees are due at the time of application and are not refundable. A permit cannot be renewed if the tobacco retailer has any outstanding fines or penalties pursuant to this section.
(4) A permit granted under this section shall be valid from the date of issuance until December 31 of the year of issuance and shall not be pro-rated.
(5) An application for a permit for a new location that is received by the City or its permitting agent on or after October 1st shall be eligible for a permit that is valid for the balance of that specific calendar year as well as the entire following calendar year. This applies only to a new location that begins to operate on or after October 1st. It does not apply to a location that has been open and operating without a permit prior to October 1st.
(6) Permit administration fees, reinstatement fees, and civil penalties collected in administering this section may be collected by the City or its permitting agent and shall be credited to the general fund of the City or its permitting agent to defray the costs of administration and enforcement of this section as agreed to by the City and its permitting agent. The City and its permitting agent may agree that the permitting agent will retain all or a portion of the fees as compensation for its services as the permitting agent.
(7) For purposes of this section, “valid permit” means a permit issued under this section that has not expired, that is not within a period of suspension or failure-to-reinstate status, and that has not been revoked under this section or any provision of applicable law.
(8) A separate permit shall be required for each retail sales location regardless of whether or not a person owns or operates more than one retail sales location within the City.
(9) A penalty equal to 25 percent of the applicable permit fee shall be assessed and collected by the City or its permitting agent for permit fee renewal payments that are not received or postmarked by the first day of January.
(d) Permit Revocation, Denial, or Suspension.
(1) Application for a permit may be denied for any of the following reasons:
A. The permit application had a permit revoked within the previous three years;
B. The permit applicant is determined to have knowingly included false or misleading information in the permit application or renewal permit application;
C. The applicant’s current permit has been suspended and the period of suspension has not elapsed;
D. A business owned or operated by the permit applicant engaging in the sale of tobacco products within the City is the subject of a court order or a City resolution or final order declaring such business to be a public nuisance, where said nuisance has not been abated, or where a court has ordered the sales of tobacco products shall cease pursuant to any temporary restraining order preliminary injunction, or permanent injunction issued by said court;
E. The permit applicant is in arrears with respect to any fine imposed for violation of this section; or
F. The permit applicant has failed to provide any of the items required under division (c)(2) of this section.
(2) For purposes of division (d)(1) of this section, “applicant” shall include entities with common ownership or management to the entity or natural person listed on the application.
(3) A permit may be suspended for a definite period, not to exceed six months, as determined by the City or its permitting agent. Prior to reinstatement of the permit following expiration of the suspension, the permittee shall remit a permit reinstatement administration fee of no less than $100.00 as initially set, or subsequently reviewed and adjusted, by the City or its permitting agent. A permit may be suspended for any of the following reasons:
A. A business owned and operated by the permit applicant engaging in the sale of tobacco products within the City is the subject of a court order or City resolution or final order declaring such business to be a public nuisance where said nuisance has not been abated, or where the court has ordered that sales of tobacco products shall cease pursuant to any temporary restraining order, preliminary injunction, or permanent injunction issued by said court;
B. Substantiated evidence that permittee or agent of permittee has sold or otherwise distributed any tobacco product to any person under 21 within the City more than one time in the past 12 months;
C. The finding by a federal or state agency or court that the permit applicant has violated a federal or state rule or regulation governing the sale of tobacco products;
D. Entry of a City or its permitting agent pursuant to division (h) of this section is refused for inspection, or investigation is refused, hindered, or thwarted; or
E. The permittee is in arrears with respect to any fine imposed for any civil penalty levied under this chapter.
(4) A permit may be revoked for any of the following reasons:
A. The permit applicant is determined to have knowingly included false or misleading information in the permit application or renewal permit application.
B. Substantiated evidence that permittee or agent of permittee has sold or otherwise distributed any tobacco product to any person under 21 within the City more than one time in the past 12 months;
C. Entry of a City or its permitting agent pursuant to division (h) of this section is refused, or inspection or investigation is refused, hindered or thwarted;
D. A period of suspension imposed under division (d)(3) of this section has elapsed and the permittee remains in arrears of payment of such fine or penalty; or
E. The permittee has been subject to three or more suspensions in the previous 24-month period.
(e) Non-Transferability. A permit is non-transferable. A new permit will be issued at no cost to the permittee who changes location no more than one time during a calendar year. Any sale or transfer of ownership of permittee’s business will require a new application and subsequent permit issuance.
(f) Non-Retaliation. No person or employer shall discharge, refuse to hire, or in any manner retaliate against any employee, applicant for employment, or customer because such employee, applicant, or customer reported violations of any provisions of this chapter.
(g) Posting of Signs; Education; Outreach.
(1) A sign stating “Under Twenty-One (21) Sales of Tobacco and Nicotine Products and Devices Prohibited by Law” and “Pursuant to Section 537.162 of the Codified Ordinances of the City of South Euclid” shall be posted at each permitted location. The sign(s) posted shall be the sign required and provided by the City or its permitting agent. The sign(s) shall be clearly and conspicuously posted at or near the point of sale of any location tobacco products and/or alternative nicotine products are sold.
(2) The City or its permitting agent shall collaborate with the community to prepare and distribute education materials and required signage to all vendors and educate the general public on the implementation and compliance with this chapter.
(h) Enforcement; Appeals.
(1) The City and its permitting agent shall have authority to implement and enforce the provisions of this chapter.
(2) The City or its permitting agent may conduct an inspection of a business prior to issuing a permit. The City or its permitting agent may inspect each business holding a permit annually, or more frequently as deemed necessary, to ascertain compliance with this section. The City or its permitting agent may enter at reasonable times to inspect or investigate and examine or copy records to determine compliance with this section. The City or its permitting agent may apply for and any judge of a court of record may issue an appropriate search warrant necessary to achieve the purpose of this section within the court’s territorial jurisdiction. If entry is refused or inspection or investigation is refused, hindered or thwarted after the City or its permitting agent receives permission or a warrant to inspect, the City or its permitting agent may suspend or revoke the permit as set forth herein.
(3) In addition to the denial, suspension, or revocation of a permit, the City or its permitting agent may impose the following civil penalties for violations of this section:
A. For a first violation, a written warning shall be provided to a violator.
B. For a second violation within two years of the first violation, $250.00.
C. For a third violation within two years of the second violation, $500.00.
D. For a fourth violation within two years of the third violation, $1,000.
E. For a fifth violation within two years of the fourth violation, administrative permit review to determine if the permit should be suspended or revoked.
(4) When the City or its permitting agent determines to issue a civil penalty for a violation, to deny a permit application, or to suspend or revoke a permit, the City or permitting agent shall notify permittee of said determination by sending written notice of said determination by U.S. first-class mail to the address provided on the permit application.
(5) The City or its permitting agent shall not be required to conduct an evidentiary hearing prior to issuing a determination provided for in division (h)(4) of this section.
(6) The permittee may file a written notice of appeal with the City Director of Law within 14 calendar days after the date the determination was mailed. The process to request said appeal shall be provided in the notice of the determination set forth in division (h)(4) of this section. The determination shall take effect following the expiration of time to file the notice of appeal.
(7) An appeal hearing shall be heard by the Board of Zoning Appeals, as provided for in Article V, Section 11 of the Charter of the City of South Euclid, which shall follow the relevant hearing procedures established for appeals from orders of the Building Commissioner. The burden of proof by preponderance of the evidence shall be upon the City or its permitting agent. The hearing board shall be the final, administrative decision maker.
(i) Injunction Relief.
(1) The provisions of divisions (a) through (h) of this section are health ordinances applicable to real property in the City and may be enforced by civil action pursuant to the Revised Code.
(2) Repeated violations of this section may constitute a public nuisance. The Law Director may bring a cause of action to abate such nuisance and enjoin the recurrence of such violations and for such other relief may be available at law or in equity.
(Ord. 03-24. Passed 1-8-24.)