Loading...
HomeMy WebLinkAbout897_Part 10 Chapter 9_Prohibit Tobacco Access to Youth Tulsa County Clerk- EARLENE WILSON Doc # 200708,2260 Pales 9 Receipt # 936559 07/24/07 14:36 X17 Fee 29.00 CITY OF OWASSO, OKLAHOMA ORDINANCE NO. 897 AN ORDINANCE RELATING TO PART 10, OFFENSES AND CRIMES, CHAPTER 9, SMOKING AND TOBACCO, OF THE CODE OF ORDINANCES OF THE CITY OF OWASSO, OKLAHOMA, AMENDING SAME BY REPEALING SECTION 10 -419 AND CREATING CHAPTER 9 ENTITLED "SMOKING AND TOBACCO" AND ESTABLISHING WHAT CONDUCT IS UNLAWFUL AND THE PENALTIES THAT MAY BE IMPOSED. THIS ORDINANCE AMENDS PART 10 OF THE CITY OF THE OWASSO CODE OF ORDINANCES BY REPEALING CHAPTER 4, SECTION 10 -419, AND BY CREATING CHAPTER 9 OF PART 10, SECTIONS 10 -901 THROUGH 10 -911. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF OWASSO, OKLAHOMA, THAT, TO -WIT: SECTION ONE (1): Part 10, Offenses and Crimes, Chapter 9, of the Code of Ordinances of the City of Owasso, Oklahoma, shall be amended by providing and codifying as follows: SECTION TWO (2): SECTION 10 -901 TOBACCO TO MINORS - DEFINITIONS As used in this section: 1. "Person" means any individual, firm, fiduciary, partnership, corporation, trust, or association, however formed; 2. "Proof of age" means a driver license, license for identification only, or other generally accepted means of identification that describes the individual as eighteen (18) years of age or older and contains a photograph or other likeness of the individual and appears on its face to be valid; 3. "Sample" means a tobacco product distributed to members of the public at no cost for the purpose of promoting the product; 4. "Sampling" means the distribution of samples to members of the public in a public place; 5. "Tobacco product" means any product that contains tobacco and is intended for human consumption; 6. "Transaction scan" means the process by which a seller checks, by means of a transaction scan device, the validity of a driver license or other government - issued photo identification; and 7. "Transaction scan device" means any commercial device or combination of devices used at a point of sale or entry that is capable of deciphering in an electronically readable format the information encoded on the magnetic strip or bar code of a driver license or other government - issued photo identification. SECTION THREE (3): SECTION 10 -902 FURNISHING, GIVING OR SALE OF TOBACCO PRODUCTS TO MINORS A. It is unlawful for any person to sell, give or furnish in any manner any tobacco product to another person who is under eighteen (18) years of age, or to purchase in any manner a tobacco product on behalf of any such person. Provided, however, that it shall not be unlawful for an employee under eighteen (18) years of age to handle tobacco products when required in the performance of the employee's duties. B. 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 might be less than eighteen (18) years of age. 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 less than eighteen (18) years of age, the failure to subsequently require proof of age shall not constitute a violation of subsection B of this section. 1. When a person violates subsection A or B of this section, he or she shall be guilty of an offense and, upon conviction, shall be punished by a fine as follows: a. Not more than One Hundred Dollars ($100.00) for the first offense, b. Not more than Two Hundred Dollars ($200.00) for the second offense within a two -year period following the first offense, C. Not more than Three Hundred Dollars ($300.00) for a third offense within a two -year period following the first offense. In addition to any other penalty, the store's license to sell tobacco products may be suspended for a period not exceeding thirty (30) days, or d. Not more than Three Hundred Dollars ($300.00) for a fourth or subsequent offense within a two -year period following the first offense. In addition to any other penalty, the store's license to sell tobacco products maybe suspended for a period not exceeding sixty (60) days. 2. Pursuant to State law, when it has been determined by a municipal court that a penalty shall include a license suspension, the ABLE Commission will notify the Oklahoma Tax Commission, and the Tax Commission will suspend the store's license to sell tobacco products at the location where the offense occurred for the period of time prescribed by the ABLE Commission. 3. 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. A person cited for violating this section shall be deemed to have reasonably relied upon proof of age, and such person shall not be found guilty of such violation, if such person proves that: a. The individual who purchased or received the tobacco product presented a driver license or other government- issued photo identification purporting to establish that such individual was eighteen (18) years of age or older, and b. The person cited for the violation confirmed the validity of the driver 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 section if such person failed to exercise reasonable diligence to determine whether the physical description and picture appearing on the driver license or other government- issued photo identification was that of the individual who presented it. The availability of the defense described in this subsection does not affect the availability of any other defense under any other provision of law. D. 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. Each violation by any employee of an owner of a store licensed to sell tobacco products shall be deemed a violation against the owner for purposes of a license suspension pursuant to subsection C of this section. An owner of a store licensed to sell tobacco products shall not be deemed in violation of this section for any acts constituting a violation by any person, when the violation occurs prior to actual employment of the person by the store owner or the violation occurs at a location other than the owner's retail store. For purposes of determining the liability of a person controlling franchises or business operations in multiple locations, for any violations of subsection A or B of this section, each individual franchise or business location shall be deemed a separate entity. E. 1. Upon failure of the employee to pay the fine within ninety (90) days of the day of the assessment of such fine, the Municipal Court clerk shall notify the Department of Public Safety and the Department will, pursuant to State law, suspend or not issue a driver's license to the employee until proof of payment has been furnished to the Department of Public Safety. 2. Upon failure of a storeowner to pay the administrative fine within ninety (90) days of the assessment of the fine, the clerk of the municipal court shall notify the Oklahoma Tax Commission and the Tax Commission shall suspend the store's license to sell tobacco products until proof of payment has been fiimished to the Oklahoma Tax Commission. SECTION FOUR (4): SECTION 10 -903 RECEIPT OF TOBACCO PRODUCTS BY A MINOR 3 A. It is unlawful for a person who is less than eighteen (18) years of age to purchase, receive or accept receipt of, 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, or not actually his or her own, for the purpose of purchasing or receiving any tobacco product. Provided, however, it shall not be unlawful for an employee who is less than eighteen (18) years of age to handle such tobacco products when required in the performance of such person's the employee's duties. B. When a person violates subsection A of this section he or she shall be guilty of an offense and, upon conviction, shall be punished by a fine of: 1. Not to exceed One Hundred Dollars ($100.00) for a first offense; and 2. Not to exceed Two Hundred Dollars ($200.00) for a second or subsequent offense within a one -year period following the first offense. Upon failure of the individual to pay the fine within ninety (90) days of the day of the fine, the Municipal Court clerk shall notify the Department of Public Safety and, by operation of State law, the Department shall suspend or not issue a driver license to the individual until proof of payment has been furnished to the Department of Public Safety. SECTION FIVE (5): SECTION 10 -904 PROPER SIGNAGE REQUIRED A. Every person who sells or displays tobacco products at retail shall post conspicuously and keep so posted at the place of business a sign, as specified by the Alcoholic Beverage Laws Enforcement (ABLE) Commission, stating the following: "IT'S THE LAW. WE DO NOT SELL TOBACCO PRODUCTS TO PERSONS UNDER 18 YEARS OF AGE ". The sign shall also provide the toll -free number operated by the Alcoholic Beverage Laws Enforcement (ABLE) Commission for the purpose of reporting violations of the Prevention of Youth Access to Tobacco Act. B. When a person violates subsection A of this section he or she shall be guilty of an offense and upon conviction shall be punished by a fine of not more than Fifty Dollars ($50.00) for each day a violation occurs. Each day a violation is continuing shall constitute a separate offense. The notice required by subsection A of this section shall be the only notice required to be posted or maintained in any store that sells tobacco products at retail. SECTION SIX (6): SECTION 10 -905 NOTICE TO RETAIL EMPLOYEES A. Every person engaged in the business of selling tobacco products at retail store shall notify each individual employed by that person as a retail sales clerk that state and local law: 1. Prohibits the sale or distribution of tobacco products to any person under eighteen (18) years of age and the purchase or receipt of tobacco products by any person under eighteen (18) years of age; and 2. Requires that proof of age be demanded from a prospective purchaser or recipient if an ordinary person would conclude on the basis of appearance that the prospective purchaser or recipient may be less than eighteen (18) years of age. B. This notice shall be provided before the individual commences work as a retail sales clerk. The individual shall signify that he or she has received the requisite notice by reading and signing a notice stating the following: "I understand that state law prohibits the sale or distribution of tobacco products to persons less than eighteen (18) years of age and out -of- package sales, and requires proof of age of purchaser or recipient if an ordinary person would conclude on the basis of appearance that the prospective purchaser or recipient may be under eighteen (18) years of age. I promise, as a condition of my employment, to obey the law. I understand that violations by me may be punishable by fines, suspension or non - issuance of my driver license. In addition, I understand that violations by me may subject the storeowner to fines or license suspension." SECTION SEVEN (7): SECTION 10 -906 LIMITED ACCESS TO VENDING MACHINES It shall be unlawful for any person to sell tobacco products through a vending machine unless the vending machine is located: 1. In areas of factories, businesses, offices or other places that are not open to the public; and 2. In places that are open to the public, but to which persons under eighteen (18) years of age are not admitted. SECTION EIGHT (8): SECTION 10 -907 DISTRIBUTION OF TOBACCO PRODUCT SAMPLES A. It shall be unlawful for any person or retailer to distribute tobacco products or product samples to any person under eighteen (18) years of age. B. No person shall distribute tobacco products or product samples in or on any public street, sidewalk, or park that is within three hundred (300) feet of any playground, school, or other facility when the facility is being used primarily by persons under eighteen (18) years of age. 5 . C. When a person violates any provision of subsection A or B of this section, he or she shall be guilty of an offense and, upon conviction, shall be punished by a fine of: 1. Not more than One Hundred Dollars ($100.00) for the first offense; 2. Not more than Two Hundred Dollars ($200.00) for the second offense; and 3. Not more than Three Hundred Dollars ($300.00) for a third or subsequent offense. D. Upon failure of any individual to pay an administrative fine within ninety (90) days of the assessment of such fine, the Municipal Court clerk shall notify the Department of Public Safety, and the Department, pursuant to State law, shall suspend or not issue a driver's license to the individual until proof of payment has been furnished to the Department of Public Safety. SECTION NINE (9): SECTION 10 -908 SALE OF TOBACCO PRODUCTS EXCEPT IN ORIGINAL SEALED PACKAGE A. It is unlawful for any person to sell cigarettes except in the original, sealed package in which they were placed by the manufacturer. B. When a person violates subsection A of this section, the Municipal Court clerk shall assess such person an administrative fine of not more than Two Hundred Dollars ($200.00) for each offense. SECTION TEN (10): SECTION 10 -909 NO PUBLIC ACCESS OF TOBACCO A. It is unlawful for any person or retail store to display or offer for sale tobacco products in any manner that allows public access to the tobacco product without assistance from the person displaying the tobacco product or an employee or the owner of the store. The provisions of this subsection shall not apply to retail stores which do not admit into the store persons under eighteen (18) years of age. B. When a person violates subsection A of this section he or she shall be guilty of an offense and, upon conviction, shall be punished by a fine of not more than Two Hundred Dollars ($200.00) for each offense. SECTION ELEVEN (11): SECTION 10 -910 RESTRICTIONS ON MANNER OF ENFORCEMENT A. Any conviction for a violation of any section within this chapter and any negative results from compliance checks performed by a police officer pursuant to subsection C of this section shall be reported in writing to the ABLE Commission within thirty (30) days of such conviction or compliance check. Such reports shall be compiled in the manner prescribed by the ABLE Commission. B. For the purpose of determining second or subsequent violations, both the offenses penalized by the ABLE Commission as administrative fines and the offenses penalized by the municipality and reported to the ABLE Commission shall be considered together in such determination. C. Persons under eighteen (18) years of age may be enlisted by the City to assist in conducting compliance checks and enforcement; provided, such persons maybe used to test compliance only if written parental consent has been provided and the testing is conducted under the direct supervision of the ABLE Commission or conducted by another law enforcement agency if such agency has given written notice to the ABLE Commission in the manner prescribed by the ABLE Commission. This subsection shall not apply to the use of persons under eighteen (18) years of age to test compliance if the test is being conducted by or on behalf of a retailer of cigarettes, as defined in Section 301 of Title 68 of the Oklahoma Statutes, at any location the retailer of cigarettes is authorized to sell cigarettes. Use of persons under eighteen (18) years of age to test compliance shall be unlawful and punishable by assessment of an administrative fine of One Hundred Dollars ($100.00). SECTION TWELVE (12): SECTION 10 -911 TRANSFER OF ANY MATERIAL OR DEVICE USED IN SMOKING, CHEWING OR CONSUMPTION OF TOBACCO TO MINORS PROHIBITED — ADMINISTRATIVE FINE FOR VIOLATIONS A. It is unlawful for any person to sell, give or furnish in any manner to another person who is under eighteen (18) years of age 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. B. When a person violates subsection A of this section, an administrative fine of not more than One Hundred Dollars ($100.00) for each offense may be imposed upon the person. SECTION THIRTEEN (13): INCREASE OF FINES; FEE SCHEDULE All fines set forth within this ordinance may be increased, to the extent allowed by state law, by resolution. It is not necessary to amend this ordinance each time the municipality deems it timely to increase fines and fees. A resolution may be adopted by the City Council and filed accordingly. The Chief of Police shall maintain a current schedule of all fees allowed under this chapter in the Police Department. SECTION FOURTEEN (14): REPEAL OF SECTION 10 -419, TOBACCO TO MINORS Section 10 -419 of the City of Owasso Code of Ordinances is hereby repealed because the regulations, prohibitions and fines governing the purchase and use of tobacco by juveniles that are set forth in section 10 -419 are more fully addressed in the newly created code provisions of part 10, chapter 9. Section 10 -419 conflicts with the provisions of Chapter 9 and must be eliminated from the Code of Ordinances upon adoption of the sections of Chapter 9. SECTION FIFTEEN (15): SEVERABILITY If any part or parts of this ordinance are deemed unconstitutional, invalid or ineffective, the remaining portion shall not be affected but shall remain in full force and effect. SECTION SIXTEEN (16): DECLARING AN EFFECTIVE DATE The provisions of this ordinance shall become effective thirty (30) days from the date of final passage as provided by state law. SECTION SEVENTEEN (17): CODIFICATION The City of Owasso Code of Ordinances is hereby amended by creating Chapter 9 entitled "Smoking and Tobacco" to be codified in Part 10, Chapter 9, as sections 10 -901 through 10 -911. The Code is also amended by the repeal of section 10 -419 of Part 10, Chapter 4. SECTION EIGHTEEN (18): REPEALER All ordinances, or parts of ordinances, in conflict with this newly created chapter are hereby repealed to the extent of the conflict only. PASSED by the City Council 2007 ATTEST: of the City of Owasso, Oklahoma on the day of Stephen Oataudella, Mayor APPROVED as to form and legality this day of 1/t , 2007. Ju e Lombardi City Attorney PUBLISHER'S AFFIDAVIT ORDINANCE # 897 PUBLICATION DATE(S) 07/31/07 CASE NUMBER: ORD NO. 897 INVOICE NO: 00036719 LEGAL NOTICE STATE OF OKLAHOMA COUNTY OF TULSA SS 1, of lawful age, being duly sworn, am a legal representative of Owasso Reporter of Owasso, Oklahoula, a daily newspaper of general circulation in Tu1sa,OklahOlna, a newspaper qualified to publish legal notices, advertisements and publications as provided in Section 106 of Title 25, Oklahoma Statutes 1971 and 1982 as amended, and thereafter, and complies with all outer requirements of the laws of Oklahoma with reference to legal publications. That said notice, a true copy of which is attached hereto was published in the regular edition of said newspaper during the period and lime of publication and not in a supplement, on the ABOVE LIS'T'ED DATE(S) Reprensentative Signature Subscribed to and sworn to n1e this Ist day of August 2007- Notary Public CAROL MOORE My commission Number: 0601 1684 My con mission expires: December 8, 2010 Customer: CITY OF OWASSO Cast No: 00000779 NANCYCAROL MOORE NotaryPubk- 81DIeotOklahomD Publisher's Pee: $ 486.30 TUmCounty Aires December 8, 2010 Commission # 06011684 36719 Published in the Owasso Reporter, Owasso, Tulsa County, Okla- homa, July 31, 2007. CRY OF OWASSO, OKLAHOMA ORDINANCE NO. 897 AN ORDINANCE RELATING TO PART 10, OFFENSES AND CRIMES, CHAPTER e, YOUTH ACCESS TO TOBACCO, OF THE CODE OF ORDINANCES OF THE CRY OF OWASSO, OKLAHOMA, AMENDING SAME BY REPEALING SECTION 10419 AND CREATING CHAPTER 0 ENTITLED "YOUTH AC- CESS TO TOBACCO" AND ESTABLISHING WHAT CONDUCT IS UNLAWFUL AND THE PENALTIES THAT MAY BE IM- POSED. THIS ORDINANCE AMENDS PART 10 OF THE CITY OF THE OWASSO CODE OF ORDINANCES BY REPEALING CHAPTER 4, SECTION 10419, AND BY CREATING CHAPTER 9 OF PART 10, SECTIONS 10-901 THROUGH 10-911. BE R ORDAINED BY THE COUNCIL OF THE CRY OF OWASSO, OKLAHOMA, THAT, TO -WIT: SECTION ONE (1): Part 10, Offenses and Crimes, Chapter 9, of the Code of Ordinances of the City of Owasso, Oklahoma, shall be amended by providing and codifying as follows: SECTION TWO (2): SECTION 10401 TOBACCO TO MINORS-DEFINITIONS As used in this section: 1. "Person" means any individual, firm, fiduciary, partnership, corporation, trust, or association, however formed; 2. "Proof of age" means a driver license, license for identfica- tion only, or other generally accepted means of Identifica- tion that describes the individual as eighteen (18) years of age or older and contains a photograph or other likeness of the individual and appears on ffs face to be valid, S. "Sample' means a tobacco product distributed to members of the public at no cost for the purpose of promoting the product; 4. "Sampling" means the disurateon of samples to members of the public in a public place; 5. "Tobacco product" means any product Mat contains tobacco and is intended for human consumption; 6. "Transaction scan" means the process by which a seller checks, by means of a transaction scan device, the validity of a driver license or other government- issued photo Identi- fication: and 7. Transaction scan device" means any commercial device or combination of devices used at a point of sale or entry that Is capable of deciphering In an electronically readable for- mat the information encoded on the magnetic strip or bar code of a driver license or other government -issued photo Identification. SECTION THREE (3): SECTION 10-902 FURNISHING, GIVING OR SALE OF TO" BAOOO PRODUCTS TO MINORS A. It Is unlawful for any person to sell, give or furnish In any man- ner any tobacco product to another person who is under eighteen (18) years of age, or to purchase in any manner a tobacco product on behalf of any such person. Provided, however, that it shall not be unlawful for an employee under eighteen (18) years of age to handle tobacco products when required in Me performance of the employee's duties. B. A person engaged in the sale or distribution of tobacco prod - ucts shell demand proof of age from a prospective purchaser or re- cipient if an ordinary person would conclude on Me basis of ap- pearance that me prospective purchaser might be less new eight- een (18) years of age. C. If an individual engaged In the seta or distribution of tobacco products has demanded proof of age from a prospective purchaser or recipient who is not less than eighteen If 8) years of age, the fail- ure to subsequently require proof of age shall not constitute a viola- tion of subsection B of this section. 1. When a person violates subsection A or B of this section, he or she shall be guilty of an offense and, upon conviction, shall be punished by a fine as follows: a. Not more than One Hundred Dollars ($100.00) for the firstoffense, b. Not more than Two Hundred Dollars ($200.00) for the second offense within a two -year periotl following the first offense, C. Not more than Three Hundred Dollars ($300.00) for a third offense within a two-year period following Me first offense. In addition to any other penalty, the store's li- cense to sell tobacco products may be suspended for a period not exceeding thirty (30) days, or d. Not more than Three Hundred Dollars ($300.00) for a fourth or subsequent offense within a two -year period following the first offense. In addition to any other pan - alty, the store's license to sell tobacco products may be suspended for a period not exceeding sixty (60) days. 2. Pursuant to State law, when It has been determined! by a mu- nicipal court mat a penalty shall Include a license suspension, Me ABLE Commission will notify the Oklahoma Tax Commission, and Me Tax Commission will suspend the stare's license to sell tobacco products at the location where the offense occurred for the period of time proscribed by the ABLE Commission. person as a retail sales clerk that state and local law: 51 . 1. Prohibits the safe or distribution of tobacco products to any person untler eighteen (18) years of age and the purchase or receipt of tobacco products by any person under eighteen (18) years of age; and 2. Requires that proof of age be demanded from a pro- spective purchaser or recipient ff an ordinary person would conclude on the basis of appearance that the prospective purchaser or recipient may be less than eighteen (18) years of age. B. This notice shall be provided before the individual com- mences work as a retail sales clerk. The individual shall signify that he or she has received the requisite notice by reading and signing a notice stating Me following: "I understand that state law prohibits the sale or distribution of tobacco products to persons less Man eighteen (18) years of age and ourt-of- package sales, and requires proof of age of pur- chaser or recipient if an ordinary person would conclude on the basis of appearance that the prospective purchaser or recipient may be under eighteen (18) years of age. I promise, as a oon- difion of my employment, to obey the law I understand that violations by me may be punishable by fines, susperlebn or non - issuance of my driver license. In addition, I understand that violations by me may subject the stomowner to fines or li- cense suspension." SECTION SEVEN (7): SECTION 16808 LIMITED ACCESS TO VENDING MACHINES It shall be unlawful for say person to sell tobacco products through vending machine unless the vending machine is located: 1. In areas of factories. businesses, offices or other places Mat are not open to the public; and 2. In places that are open to the public, but to which persons under eighteen (18) years of age are not admitted. SECTION EIGHT (8): SECTION 10-907 DISTRIBUTION OF TOBACCO PRODUCT SAMPLES A. It shall be unlawful for any person ci retailer to distribute to- bacco products or product samples to any person under eighteen (18) years of age. S. No person shall distribute tobacco products or product sam- ples In or on any public street, sidewalk, or park that Is within three hundred (300) feet of any playground, school, or other facility when Me facility is being used primarily by persons under eighteen (18) years of age. C. When a person violates any provision of subsection A or B of this section, he or she shall be guilty of an offense and, upon con - vlefion, shall be punished by a fine of: 1. Not more than One Hundred Dollars ($100.00) for the firstoffense; 2. Not more Man Two Hundred Dollars ($200.00) for the second offense; and 3. Not more than Three Hundred Dollars ($300.00) for a third or subsequent offense. D. Upon failure of any Individual to pay an administrative fine within ninety (90) days of the assessment of such fine, the Munka- pal Court clerk shall notify the Department of Public Safety, and the Department, pursuant to State law, shall suspend or not issue a drivers license to Me Individual until proof of payment has been furnished to the Department of Public Safety. SECTION NINE (9): A. It Is unlawful for any person to sell cigare0es except in the original, sealed package in which they were placed by the manu- facturer. B. When a parson violates subsection A of this section, the Mu- elopel Court clerk shall assess such person an administrative fine of not more than Two Hundred Dollars ($200.00) for each offense. SECTION TEN (10): BECTION 16908 NO PUBLIC ACCESS OF TOBACCO A. It is unlawful for any person or retail store to display or offer for sale tobacco products In any manner that allows public access to the tobacco product without assistance from the person display - Ing the tobacco product or an employee or the owner of the store. The provisions of this subsection shall not apply to retail stores which do not admit into Me store persons under eighteen (18) Years of age. B. When a person violates subsection A of this section he or she shall be guilty of an offense and, upon conviction, shall be punished by a fine of not more than Two Hundred Dollars ($200.00) for each offense. SECTION ELEVEN (11): SECTION 10-910 RESTRICTIONS ON MANNER OP EW FORCEMEIR 3. Proof that the defendant demanded, was shown, and Tee- A. Any conviction for a violation of any section within this chapter shall be a tlefense to an action and any negative results from compliance checks performed by a C of this section shall be re- thirty (30) days of a. The individual who purchased or received the tobacco product presented a driver license or other govem- ment- Issued photo Identification purporting to establish Mat such Individual was eighteen (18) years of age or older, and b. The person cited for the violation confirmed the validity of the driver license or other government- issued photo Identification presented by such individual by perform- ing 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 Mis section it such person felled to exercise reasonable diligence to determine whether Me physical descdption and picture appearing an the driver license or other government - issued photo identification was that of the individual who presented IL The availability of the defense described in this subsection does not most Me availability of any other defense un- derany other provision of law. D. 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. Each violation by any employee of an owner of a store licensed to sell tobacco products shall be deemed a violation against the owner for pur- poses of a license suspension pursuant to subsection C of this sec- tion. An Owner of a store Ilcansed to sell tobacco products shall not be deemed In violation of this section for any acts constituting a vio- lation by any person, when the violation occurs prior to actual em- ployment of Me person by the store owner or Me violation occurs at a location other Man the owner's retail store. For purposes of de- termining the liability of a person comroking franchises or business operations in multiple locations. for any violations of subsection A or B of this section, each individual franchise or business location shall be deemed a separate entity. E. 1. Upon failure of the employee to pay the fine within ninety (90) days of the day of Me assessment of such fine. the Municipal Court clerk shall notify the Department of Public Safety and the De- parbnent will, pursuant W State law, suspend or not issue a driv- er's license to Me employee until proof of payment has been fur- nished to the Department of Public Safety. 2. Upon failure of a storeowner to pay the administrative fine within ninety (90) days of the assessment of Me fine, Me clerk of the municipal court shall notify the Oklahoma Tax Commission and Me Tax Commission shall suspend Me store's license to sell tobacco products until proof of payment has been furnished to Me Oklahoma Tax Commission. SECTION FOUR (4): SECTION 104M RECEIPT OF TOBACCO PRODUCTS BY A MINOR A. It is unlawful for a person who is less than eighteen (18) years of age to purchase, swelve or accept receipt of. 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, or not aotu- elly his or her own, for the purpose of purchasing or receiving any tobacco product. Provided, however, it shall not be unlawful for such a person an employee who is less Man eighteen (18) years of age to handle such tobacco products when required in Me perform- ance of such person's the employee's duties. B. When a person violates subsection A of this section he or she shall be guilty of an offense and, upon conviction, shall be punished by a fine of: 1. Not to exceed One Hundred Dollars ($100.0) for a first of- fense;and 2. Not to exceed Two Hundred Dollars ($200.00) for a second or subsequent offense within a one -year period following the first offense. Upon failure of the Individual to pay such Me fine within ninety (90) days of the day of such the fine, Me Municipal Court clerk shall notify the Department of Public Safety and, by operation of State law, the Department shall suspend or not issue a driver license to the Individual until proof of payment has been furnished to Me De- partment of Public Safety. SECTION FIVE (6): SECTION 10904 PROPER SIONAGE REQUIRED A. Every person who sells or displays tobacco products at retail shall post conspicuously and keep so posted at Me place of busi- ness a sign, as specified by the Alcoholic Beverage Laws Enforce- ment (ABLE) Commission, stating the following: "IT'S THE LAW. WE DO NOT SELL TOBACCO PRODUCTS TO PERSONS UN- DER 18 YEARS OF AGE". The sign shall also provide the toll -free number operated by Me Alcoholic Beverage Laws Enorcement (ABLE) Commission for Me purpose of reporting violations of the Prevention of Youth Access to Tobacco Act. B. When a person violates subsection A of this section he or she shall be guilty of an offense and upon conviction shall be punished by a fine of not more than Fifty Dollars ($50.00) for each day a vio- lation occurs. Each day a violation is continuing shall constitute a separate offense. The notice required by subsection A of this sec- tion shall be Me only notice required to be posted or maintained In any store that sells tobacco pmducts at retail. SECTION SIX (e): SECTION 1¢906 NOTICE TO RETAIL EMPLOYEES A. Every person engaged in Me business of selling tobacco products at retail store shall notify each Individual employed by Mat e purpose or determining second or subsequent viola- tions, both the offenses penalized by the ABLE Commission as ad. ministrative fines and the offenses penalized the municipality no reported to Me ABLE Commission shall be considered together In such deteimlnation. C. Persons under eighteen (18) years of age may be enlisted by the City to assist in conducting compliance checks and enforce- ment; provided, such persons may be used to test compliance only if written parental consent has been provided antl the testing Is conducted under the direct supervision of Me ABLE Commission or conducted by another law enforcement agency ff such agency has given written notice to the ABLE Commission In the manner pre - acdbed by Me ABLE Commission. This subsection shall not apply to Me use of persons under eighteen (18) years of age to test com- pliance H the test Is being conducted by or on behalf of a atelier of cigarettes, as defined in Section 301 of Tide 68 of Me Oklahoma Statutes, at any location the retailer of cigarettes Is authorized to sell cigarettes. Use of persons under eighteen (18) years 0 age to test compliance shall be unlawful and punishable by assessment of an administrative fine of One Hundred Dollars ($100.00). SECTION TWELVE (12): SECTION 10-911 TRANSFER OF ANY MATERIAL OR DEVICE USED IN SMOKING CHEWING OR CONSUMPTION OF TO- BACCO TO MINORS PROHIBITED — ADMINISTRATIVE FIN FOR VIOLATIONS A. It is unlawful for any person to sell, give or furnish in any manner to another person who is under eighteen (18) years of age any material or device used in Me smoking, chewing, or other method of consumption of tobacco, including cigarette papers, pipes, holders of smoking materials of all types, and other Items de- signed primarily for Me smoking or ingestion of tobacco products. B. When a person violates subsection A of this section, an ad- ministrative fide of not more Man One Hundred Dollars ($100.00) for each offense may be imposed upon the person. BECTON THIRTEEN (18): INCREASE OF FINES, FEE SCHED- ULF- All fines set forts within this ordinance may be increased, to the extent allowed by state law, by resolution. It is not necessary to amend Mile ordinance each time the municipality deems it timely to Increase fines and fees. A resolution may be adopted by the City Council and filed accordingly. The Chief of Police shall maintain a current schedule of all fees allowed under this chapter In Me Police Department. Section 10419 is hereby repealed because the regulations, pro- hibitions and fines governing the purchase and use of tobacco by juveniles that are set forth In section 10 -419 are more fully ad- dressed in the newly created code provisions of part 10, chapter 9. Section 10419 conflicts with Me provisions of Chapter 9 and must be eliminated from the Code of Ordinances upon adoption of the sections of Chapter 9. SECTION FOURTEEN (14): REPEAL OF SECTION 10419, TD- SACCO TO MINORS Section 10 -419 of Me City of Owasso Coda of Ordinances is hereby repealed because the regulations, prohibitions and fines governing the purchase and use of tobacco by juveniles that are set forts in section 10 -419 are more fully addressed in the newly created code provisions of part 10, chapter 9. Section 10419 con- flicts with the provisions of Chapter 9 and must be eliminated from the Code of Ordinances upon adoption of the sections of Chapter 9. SECTION FIFTEEN (117: SEVERABILIIY If any part or parts of this ordinance are deemed unconstitutional, Invalid or ineffective, the remaining portion shall not be affected but shall remain in full tome and effect. SECTION SIXTEEN (16): DECLARING AN EFFECTIVE DATE The provisions 0 this ordinance shall become effective thirty (30) days from Me date of final passage as provided by state law. SECTION SEVENTEEN (17): CODIFICATION The City of Owasso Code of Ordinances is hereby amended by creating Chapter 9 entitled `Yount Access to Tobacco' to be cock Fled in Part 10, Chapter 9, as sections 10,901 through 10 -911. The Cote is also amended by Me repeal of section 10419 of Part 10, Chapter 4. SECTION EIGHTEEN (16): REPEALER All ordinances, or parts of ordinances, In conflict with this newly created chapter are hereby repeated to the extent of the conflict only. PASSED by the "Council of the City of Caisson, Oklahoma on the 17th day of July , 2007. W Stephen Cataudella, Mayor ATTEST: /s /Sherry Bishop City Clear (SEAL) APPROVED as to form antl legallly /s/ Julie Lombardi MEMORANDUM TO: THE HONORABLE MAYOR AND CITY COUNCIL CITY OF OWASSO FROM: JULIE TROUT LOMBARDI CITY ATTORNEY SUBJECT: ORDINANCES REGARDING PREVENTION OF YOUTH ACCESS TO TOBACCO AND SMOKING IN IDENTIFIED PUBLIC PLACES DATE: July 17, 2007 BACKGROUND Employees of the Tulsa County Health Department met with Staff several weeks ago to provide information regarding various initiatives that have been launched to address both the health risks caused by exposure to secondhand smoke and a nationwide increase in the number of juveniles who are not only smoking but doing so at increasingly younger ages. The Health Department personnel, who have all been appointed to an anti - smoking task force named "Match Project," provided Staff with materials detailing legislative measures which have been taken by states, including Oklahoma, and by various municipalities, both inside and outside of Oklahoma to combat these problems. Specifically, the task force presented information regarding two legislative courses of action that these governmental entities have employed. The first measure is intended to decrease, and ultimately prevent, smoking by underage juveniles through the limitation of their exposure and access to tobacco products. The second measure is targeted at reducing and preventing exposure to secondhand smoke in the workplace and other indoor public locations. Both the issue of preventing youth access to tobacco and prohibiting smoking indoors in public places have been addressed by the Oklahoma Legislature and State statutes have been enacted which are aimed at providing protection for the public from these serious and often fatal health risks. The prototype ordinances provided to Staff by the task force are largely identical to the State statutes adopted by the Oklahoma Legislature. Even though these issues have already been targeted for resolution by passage of remedial legislation on the State level, the task force is urging all municipalities to likewise adopt supporting local ordinances. By doing so, cities and towns will increase the State law's efficiency and effectiveness in a number of ways. First, if an arrest is made under the State law, the offender must be transported to the county jail, thereby consuming more of the police officer's time and the City's expense for the booking process. Unfortunately, given that both money and manpower are in short supply in the majority of district attorney's offices, the offense very well may ultimately be dismissed and the offender not prosecuted. Enforcement of this municipal ordinance, as drafted, would allow police officers to issue citations for violations of these laws rather than arrest the offender. Preliminary national statistics indicate that police officers are much more likely to enforce this law if the option of issuing a citation rather than making an arrest is available. For these reasons, a number of municipalities in Oklahoma, including Edmond, Oklahoma City, Tulsa, Bixby, Stillwater, Enid, Norman, Lawton, Shawnee and others have adopted local ordinances which are identical or quite similar to State law. It is important to recognize that the ordinances proposed for enactment by the City Council are laws that are currently State statutes. The proposed ordinances are in no way more restrictive than the State law. In fact, municipalities are not allowed by law to adopt local ordinances which are more restrictive or require more than the equivalent State law. The ordinances proposed for adoption by the Council are virtually the same as the State laws which may already be enforced by the City's Police Department. Nothing within these ordinances creates "new" law or prohibits any activity that State law does not already prohibit. Adoption of these local ordinances only enhances enforcement of the tobacco laws which are already on the books. Enactment of a local ordinance which buttresses State law by preventing indoor smoking in public places and workplaces, and prohibiting juvenile access to tobacco products sends a clear message to the community that the City is fully supportive of the State statutes and intends to rigorously enforce those laws. Only with support and commitment of this type on the local level can these laws by made fully effective and their intended goals accomplished. DISCUSSION OF ORDINANCES A. Chapter 9, Part 10, Sections 10 -901 through 10 -911 entitled "Smoking and Tobacco" This collective ordinance, number 897, adds an additional chapter entitled "Smoking and Tobacco" comprised of eleven individual (11) ordinances to Part 10, "Offenses and Crimes," of the City of Owasso Code of Ordinances. Each individual ordinance contained in this chapter is designed to strengthen the City's ability to prohibit juveniles from accessing and using tobacco products and to penalize adults who sell or provide tobacco products to juveniles. This chapter does this in a number of ways by: 1. Making it unlawful for an adult to furnish, give or sell tobacco products to a minor; 2. Providing an escalating schedule of punishment for offenders, beginning with fines and ultimately resulting in suspension of their business license to sell tobacco products if the offender is a business; 3. Making it unlawful for a minor to purchase, accept or receive tobacco products in any manner enforced by an escalating schedule of punishment from fines to suspension of the offending juvenile's driver's license; 4. Requiring businesses selling tobacco products to conspicuously post signs stating that the business does not sell tobacco products to underage individuals; 5. Requiring education regarding the unlawfulness of making tobacco sales to minors to be provided to every retail store employee engaged in the sale of tobacco products; 6. Limiting juvenile access to vending machines containing tobacco products; 7. Prohibiting distribution of tobacco product samples to juveniles; 8. Prohibiting the sale of cigarettes in packaging other than the original, sealed packages in which they were placed by the manufacturer; 2 9. Preventing public access to tobacco products in a retail store in any manner that allows direct access to the product by the customer without assistance from a store employee, and, 10. Making it unlawful to provide any device or material used in the smoking or chewing of tobacco products to a minor. Enactment of this chapter provides much more comprehensive enforcement of all aspects of the laws seeking to prevent and penalize access to tobacco products by juveniles. The City's previous ordinance addressing this issue, Section 10 -419, afforded significantly less ability to the City's Police Department and Municipal Court to enforce the law and reach the targeted goal of reducing the number of minors using tobacco products. To avoid duplication in the law, Section 10 -419 is repealed by this comprehensive ordinance. B. Section 10 -912 entitled "Smoking in Certain Public Places Prohibited" This ordinance, number 898, seeks to reduce the public's exposure to secondhand smoke and thereby reduce the attendant health risks associated with secondhand smoke. To achieve that goal, the ordinance prohibits smoking in any indoor place that is open to or used by the public, public transportation and any indoor workplace, with certain narrow exemptions enumerated within the body of the ordinance. This ordinance, with slight variations, has been enacted by a number of State legislatures and municipal bodies throughout the country, and has successfully withstood all legal challenges to date. RECOMMENDATION The staff recommends City Council approval of the attached ordinances. ATTACHMENTS 1. Proposed ordinance no. 897 enacting Chapter 9, Part 10, Sections 10 -901 through 10- 911 entitled "Smoking and Tobacco" 2. Proposed ordinance no. 898 enacting Section 10 -912 entitled "Smoking in Certain Public Places Prohibited"