(A) Findings and intent.
(1) The Town Council finds that youth addiction to tobacco products is a public health problem with grave health consequences. In recognition that almost 90% of all smokers begin smoking by the age of 18, action is needed to curtail the easy access of minors to cigarettes and other addictive tobacco products. Furthermore, the Town Council finds that the state legislature has limited the powers granted to local governments to address the problem of youth access to tobacco.
(2) Therefore, the intent of this section is to:
(a) Implement the strictest and most enforceable system allowed under state law to prevent the illegal sale of cigarettes and other tobacco products to minors;
(b) Periodically amend and update this chapter as necessary to best utilize any applicable powers which may be returned to state municipalities in the future; and
(c) Educate, encourage and assist underage tobacco users in ceasing all use of addictive tobacco products, preferably before daily use of such products is initiated.
(B) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
PERSON. Any individual, firm, fiduciary, partnership, corporation, trust or association, however formed.
PROOF OF AGE. A driver license, license for identification only, or other generally accepted means of identification that describes the individual as 18 years of age or older and contains a photograph or other likeness of the individual and appears on its face to be valid.
SAMPLE. A tobacco 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.
TOBACCO PRODUCT. Any product that contains tobacco and is intended for human consumption.
(C) Distribution and sales to minors prohibited; identification required; defense; fines.
(1) It is unlawful for any person to sell or furnish in any manner any tobacco product to another person who is under 18 years of age, or to purchase in any manner a tobacco product on behalf of any such person.
(2) 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.
(3) 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.
(4) If an individual engaged in the sale or distribution of tobacco products has demanded proof of age from a prospective purchaser or recipient who is not under 18 years of age, the failure to subsequently require proof of age shall not constitute a violation of this section.
(5) If the sale is made by an employee of the owner of a store at which tobacco products are sold at retail, the employee shall be guilty of the violation and shall be subject to the fine.
(6) 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 section.
(7) For purposes of determining the liability of a person controlling franchises or business operations in multiple locations for any violation of divisions (A) or (B) above, each individual franchise or business location shall be deemed a separate entity.
(8) Any person who shall violate divisions (A) or (B) above shall be guilty of an offense and may be assessed a fine of not more than $100 for the first offense within a one-year period and $200 for the second offense or subsequent offense within a one-year period.
(9) Upon failure of any person to pay any fine authorized by this section within 90 days of the day of the assessment of such fine, the Court Clerk or his or her designee shall notify the State Department of Public Safety, as such Department is authorized to suspend or not issue a driver’s license to the person until proof of payment has been provided.
(D) Distribution of tobacco product samples restricted; fines.
(1) No person shall distribute tobacco product samples in or on any public street, sidewalk or park that 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.
(2) Any person who shall violate division (D)(1) above shall be guilty of an offense and may be assessed a fine of not more than $100 for the first offense within a one-year period and $200 for the second offense or subsequent offense within a one-year period.
(3) Upon failure of any person to pay any fine authorized by this section within 90 days of the day of the assessment of such fine, the Court Clerk or his or her designee shall notify the State Department of Public Safety, as such Department is authorized to suspend or not issue a driver’s license to the person until proof of payment has been provided.
(E) Sale of tobacco except in original, sealed packaging prohibited; fine.
(1) It is unlawful for any person to sell cigarettes except in the original, sealed package in which they were placed by the manufacturer.
(2) Any person who shall violate division (E)(1) above shall be guilty of an offense and may be assessed a fine of not more than $200 for each offense.
(F) Possession of tobacco by minors prohibited; falsifying proof of age; punishment; remedial activities; expungement of conviction.
(1) Except as provided under division (C)(2) above, it is unlawful for a person who is under 18 years of age to purchase, receive or have in their possession a tobacco 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.
(2) On conviction of an individual for an offense under division (F)(1) above, the court shall suspend execution of sentence and shall require the defendant to attend a tobacco education program. The court shall require the parent or guardian of the defendant to attend the tobacco education program with the defendant.
(3) If access to the tobacco education program is not readily available, the court shall require the defendant to perform eight to 12 hours of tobacco-related community service instead of attending a tobacco education program.
(4) The tobacco education program and the tobacco-related community service are remedial and are not punishment.
(5) No later than the ninetieth day after the date of conviction under division (F)(1) above, the defendant shall present to the court, in a manner required by the court, evidence of satisfactory completion of the tobacco education program or the tobacco-related community service.
(6) On receipt of the evidence required under division (F)(5) above, the court shall:
(a) If the defendant has been convicted of a previous offense under division (F)(1) above which offense occurred within one year prior to the offense for which the defendant is currently charged, execute the sentence, and at the discretion of the court, assess a fine of not less than $10 and not more than $200; and
(b) If the defendant has not been convicted of a previous offense under division (F)(1) above which offense occurred within one year prior to the offense for which the defendant is currently charged, dismiss the complaint and discharge the defendant.
(7) If the court dismisses the complaint under division (F)(6)(b) above, the defendant is released from all penalties and disabilities resulting from the offense except that the defendant is considered to have been convicted of the offense if the defendant is subsequently convicted of the same charge if such a repeat offense occurs within one year of the dismissed offense.
(8) Any person convicted of an offense under division (F)(1) above may apply to the court to have the conviction expunged. If the court finds that the individual satisfactorily completed the tobacco education program or tobacco-related community service ordered by the court and that there has been no subsequent offense for a period of at least one year after the date of the offense for which the person was convicted, the court shall order the conviction and any complaint, verdict, sentence or other document relating to the offense to be expunged from the individual’s record and the conviction may not be shown or made known for any purpose.
(9) If the defendant does not provide the evidence required under division (F)(5) above within the period specified by that subsection or upon failure of the defendant to pay any fine authorized by this section within 90 days of the day of the assessment of such fine, the Court Clerk or his or her designee shall notify the State Department of Public Safety, as such Department is authorized to suspend or not issue a driver’s license to the person until the required evidence or proof of payment has been provided.
(G) Reporting. The Town Clerk or his or her designee shall furnish any information or reports required or requested by the State Alcoholic Beverages Laws Enforcement (ABLE) Commission in the form, manner and time as may be determined by the ABLE Commission.
(H) Nonretaliation. No person 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 section.
(Ord. 1-5-98, passed 1-5-1998)