CITY OF WATAUGA, TEXAS ORDINANCE NO. 1551

Transcription

1 1 i I CITY OF WATAUGA, TEXAS ORDINANCE NO AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF WATAUGA, TEXAS AMENDING CHAPTER 8 OF THE CODE OF ORDINANCES FOR THE CITY OF WATAUGA, TEXAS TO ADD ARTICLE REGULATING ELECTRONIC CIGARETTES; PROVIDING FOR THE DEFINITION OF TERMS; PROVIDING THAT THE USE OF ELECTRONIC CIGARETTES SHALL BE PROHIBITED IN CITY FACILITIES; PROVIDING THAT THE USE OF ELECTRONIC CIGARETTES SHALL BE PROHIBITED IN PUBLIC PLACES; PROVIDING THAT THE POSSESSION OF ELECTRONIC CIGARETTES BY MINORS SHALL BE PROHIBITED; PROVIDING FOR THE DEFENSES FOR THE POSSESSION OF ELECTRONIC CIGARETTES BY MINORS; PROVIDING THAT THE PURCHASE OF ELECTRONIC CIGARETTES BY MINORS SHALL BE PROHIBITED; PROVIDING THAT THE PURCHASE OF ELECTRONIC CIGARETTES BY MINORS USING FALSE INFORMATION SHALL BE PROHIBITED; PROHIBITING THE SALE OF ELECTRONIC CIGARETTES TO MINORS; PROVIDING FOR THE FORM, CONTENT AND. DISPLAY OF WARNING NOTICES; PROVIDING FOR NOTIFICATION TO EMPLOYEES AND AGENTS; PROVIDING FOR VENDOR ASSISTED SALE REQUIREMENTS; PROHIBITING THE SALE OF ELECTRONIC CIGARETTES IN THE CITY; PROVIDING FOR ABATEMENT PROCEDURES APPLICABLE TO PERSONS, FIRMS OR CORPORATIONS SELLING ELECTRONIC CIGARETTES PRIOR TO THE ADOPTION OF THIS ORDINANCE; PROVIDING FOR THE PENALITIES APPLICABLE TO A VIOLATION OF ARTICLE 8. 09; PROVIDING THAT ALL ORDINANCES IN CONFLICT HEREWITH ARE HEREBY REPEALED TO THE EXTENT THEY ARE IN CONFLICT; PROVIDING A SAVINGS CLAUSE; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Watauga, Texas recognizes the need to protect the health, safety and welfare of the citizens of the City of Watauga; and WHEREAS, the City Council of the City of Watauga, Texas finds that electronic cigarettes may pose a danger to public health, safety and welfare. 1

2 NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Watauga, Texas as follows: I. The amendment to Chapter 8 of the Code of Ordinances for the City of Watauga, Texas adding Article is hereby adopted as set forth in Exhibit " A" attached hereto and incorporated by reference for all purposes as if fully set out herein. II. This Ordinance shall be and is hereby cumulative of all other ordinances of the City of Watauga, Texas, and this Ordinance shall not operate to repeal or affect any of such other ordinances, except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this Ordinances, in which event such conflicting provisions, if any, in such other ordinance( s) are hereby repealed. III. If any section, sub- section, sentence, clause or phrase of this Ordinance shall for any reason be held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. IV. This Ordinance shall become effective and be in full force and effect from and after the date of passage and adoption by the City Council and upon approval thereof by the Mayor of the City of Watauga, Texas and publication hereof as prescribed by law. PASSED AND ADOPTED by the City Council of the City of Watauga, Texas on the day of M OVCL,

3 i APPROVED: 4 i RECTO' F. GARCIA, Mayor ATTEST: NislATAti Z LAIN R. REYE City Secr ary 11 E 6j." APPROVED AS TO FORM EGALITY: ` 0 if di1d 111tioo Cr-34AA G. DANIEL, City Attorney 3

4 II ll Exhibit " A"

5 ARTICLE ELECTRONIC CIGARETTES Section Definitions As used in this Article, the following words and phrases shall have the following meanings: Bonded Agent. A person g in Texas who is an agent of a person outside this state and receives electronic cigarettes in interstate commerce and stores the electronic cigarettes for distribution or delivery to distributors under orders from the person outside this state. Consumer. A person who possesses electronic cigarettes for personal consumption. Distributor. A person who: a) is authorized to purchase for the purpose of making a first sale in Texas electronic cigarettes from manufacturers who distribute electronic cigarettes in Texas; b) ships, transports, imports into this Texas, acquires, or possesses electronic cigarettes and makes a first sale of the electronic cigarettes in Texas; c) manufactures or produces electronic cigarettes; or d) is an importer or import broker. Electronic Cigarette. Any electronic device composed primarily of a mouthpiece, heating element, battery, or electronic circuit, that provides, or is manufactured, intended to provide or advertised as providing, a vapor of liquid nicotine and/or a combination of liquid nicotine and This term shall include any other substance which is delivered or deliverable by inhalation. every version and type of such devices whether they are manufactured or marketed as electronic cigarettes, e- cigarettes, electronic cigars, e- cigars, electronic pipes, e- pipes, or under any other product name or description. This term shall include any accessories or components of an electronic cigarette and any liquid nicotine, or any other substance intended, manufactured or designed to be combined with liquid nicotine for use in an electronic cigarette. Minor. A person under the age of 18 years of age. Person. An individual, corporation, partnership, wholesaler, retailer or any licensed or unlicensed business. Possession. To have on or about the person or otherwise exercise actual care, custody, management or control over a tangible object or substance. Retailer. A person who engages in the practice of selling electronic cigarettes to consumers and includes the owner of a coin-operated electronic cigarette vending machine.

6 A transfer of possession from a retailer to a consumer in connection with a Retail sale. purchase, sale, or exchange for value of electronic cigarettes. Wholesaler. A person, including a manufacturer' s representative, who sells or distributes electronic cigarettes in Texas for resale but who is not a distributor. Section Use of Electronic Cigarettes in City Facilities Use of electronic cigarettes in any manner by any person within the confines of the interior areas of the Watauga Municipal Complex, the Watauga Public Library, inside the water tower, and all City parks and recreation buildings shall be and is hereby declared to be unlawful, and any person violating, causing or permitting this Section to be violated shall be guilty of a class C misdemeanor, and on conviction may be punished by a fine in accordance with the general penalty provision found in Section of this Code. Each day that the violation continues shall constitute a separate offense. Section Use of Electronic Cigarettes in Public Places It is an offense for a person to use an electronic cigarette in a facility of a public primary or secondary school or an elevator, enclosed theater or movie house, library, museum, hospital, transit system bus, or intrastate bus, as defined by Section , Transportation Code, plane, or train which is a public place. It is a defense to prosecution under this Section that the conveyance or public place in which the offense takes place does not have prominently displayed a reasonably sized notice that the use of electronic cigarettes is prohibited by city ordinance, or smoking is prohibited by state law, in such conveyance or public place and that an offense is punishable by a fine not to exceed$ 500. It is an exception to the application of this Section if the person uses the electronic cigarette exclusively within an area designated for smoking tobacco or using electronic cigarettes or using as a participant in an authorized theatrical performance. An offense under this Section is a class C misdemeanor. Section Possession of Electronic Cigarettes by Minors Prohibited A minor commits an offense if the minor possesses an electronic cigarette. Section Defenses It is a defense to a prosecution for violation of Section of this Article that a minor possessed an electronic cigarette: 1) While in the course and scope of the minor' s employment by a business that is.a distributor, wholesaler, bonded agent or retailer of electronic cigarettes; or 2) In the presence of an adult, parent, guardian, spouse who is eighteen ( 18) years of age or older, or other adult eighteen ( 18) years of age or older to whom the minor has been committed by a court of competent jurisdiction. III

7 Section Purchase of Electronic Cigarettes by Minors Prohibited It is an offense for a minor to purchase an electronic cigarette. It is a defense to prosecution under this Section that the minor purchased an electronic cigarette in the presence of an adult parent, guardian, spouse, or other adult to whom the minor has been committed by a court of competent jurisdiction. Section Purchase of Electronic Cigarettes by Minors Using False Information It is an offense for a minor, in order to acquire an electronic cigarette, to state to any person engaged in the business of selling electronic cigarettes that such minor is not a minor, or to present to any such person a document or writing that purports to establish that such minor is not a minor. Section Sale or Transfer of Electronic Cigarettes to Minors Prohibited; Proof of Age Required a) It shall be unlawful for any person to sell, transfer or give an electronic cigarette to a minor. b) It shall be unlawful for any person to sell, transfer or give an electronic cigarette to another person who intends to deliver the electronic cigarette to a minor. c) If an offense under this Section occurs in connection with a sale by an employee of the owner of a store in which electronic cigarettes are sold at retail, the employee is criminally responsible for the offense and is subject to prosecution. d) It is a defense to prosecution under Subsection ( a) if the person to whom the electronic cigarette was sold, transferred or given presented to the defendant what reasonably appears to be valid proof of identification indicating that the person was not a minor. e) A proof of identification satisfies the requirements of Subsection ( d) if it contains a physical description and photograph consistent with the person's appearance, purports to establish that the person is eighteen ( 18) years of age or older, and was issued by a governmental agency. The proof of identification may include a driver's license issued by any state, a passport, or an identification card issued by a state or the federal government. Section Warning Notice a) Each person who sells electronic cigarettes at retail or by vending machine shall post a sign in a location that is conspicuous to all employees and customers and that is located in close proximity to the location at which the electronic cigarettes may be purchased. III

8 b) The sign must include the statement: PURCHASING OR ATTEMPTING TO PURCHASE ELECTRONIC CIGARETTES BY A MINOR UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW. SALE OR PROVISION OF ELECTRONIC CIGARETTES TO A MINOR UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW. UPON CONVICTION, A CLASS C MISDEMEANOR, INCLUDING A FINE OF UP TO $ 500, MAY BE IMPOSED. VIOLATIONS MAY BE REPORTED TO THE DIRECTOR OF PUBLIC WORKS AT c) The sign required by Subsection ( b) must be printed in bold and black letters in twentyeight( 28) point font on a white background. Section Notification to Employees and Agents a) Each retailer shall notify each individual employed by that retailer who is to be engaged in retail sales of electronic cigarettes that the municipal ordinance prohibits and requires the following: 1) Prohibits the sale or distribution of electronic cigarettes to any person who is younger than 18 years of age as provided by Section and that a violation of that Section is a Class C misdemeanor; and 2) Requires each person who sells electronic cigarettes at retail or by vending machine to post a warning notice as provided by Section , requires each employee to ensure that the appropriate sign is always properly displayed while that employee is exercising the employee' s duties, and provides that a violation of Section is a Class C misdemeanor. b) The notice required by Subsection ( a) must be provided prior to the date an individual begins to engage in retail sales of electronic cigarettes. The individual shall signify that the individual has received the notice required by Subsection ( a) by signing a form stating that the law has been fully explained, that the individual understands the law, and that the individual, as a condition of employment, agrees to comply with the law. c) Each form signed by an individual under this Section shall indicate the date of the signature and the current address, contact phone number, driver's license number, and social security number of the individual. The retailer shall retain the form signed by each individual employed as a retail sales clerk until the 60th day after the date the individual has left the employer's employ. d) A retailer required by this Section to notify employees commits an offense if the retailer fails, on demand of a peace officer or the Director of Public Works, to produce the forms prescribed by this Section.

9 e) It is a defense to prosecution under Subsection ( d) to show proof that the employee did Proof must be complete, sign, and date the forms required by Subsections ( b) and ( c). shown to the Director of Public Works no later than the seventh day after the date of a demand under Subsection( d). Section Vendor Assisted Sales Required; Vending Machines a) Except as provided by Subsection( b), a retailer or other person may not: 1) offer electronic cigarettes for sale in a manner that permits a customer direct access to the cigarettes or tobacco products; or 2) install or maintain a vending machine containing electronic cigarettes b) Subsection( a) does not apply to: 1) a facility or business that is not open to persons younger than 18 years of age at any time; or 2) a premises for which a person holds a package store permit issued under the Alcoholic Beverage Code. Section Sale of Electronic Cigarettes Prohibited a) It shall be unlawful for any person, firm or corporation to sell or offer for sale an electronic cigarette. b) Nonconforming Uses. 1) A period of two ( 2) year(s) subsequent to the adoption of this Article is hereby person, firm or corporation engaged in the established for the abatement of any business of selling or offering for sale electronic cigarettes, which was legally existing prior to said date, but which has become nonconforming as a result of the regulations contained herein. 2) Any person, firm or corporation engaged in the business of selling or offering for sale electronic cigarettes, which was legally existing prior to the adoption of this Article must provide written notice to the Director of Public Works within ninety ( 90) days of the adoption of this Article or be subject to immediate abatement.

10 3) Any nonconforming use may be continued in operation on the same land area and on the same floor area in a structure or structures which were occupied by the nonconforming use on the adoption of this Article. 4) A nonconforming use is terminated by the following means: A) By abandonment. Voluntary abandonment of a nonconforming use shall terminate immediately the right to operate such use; B) By violation of Chapter. Any one of the following violations of this Chapter shall terminate immediately the right to operate a nonconforming use: i) Changing a nonconforming use to another nonconforming use except as herein provided and authorized; ii) Increasing either or both the land area or the floor area occupied by a nonconforming use, except as herein provided and authorized; or iii) Changing a nonconforming use to an unlawful use; or C) By specific acts of termination. Any one of the following specific acts of termination shall terminate immediately the right to operate a nonconforming use: i) Changing a nonconforming use to a conforming use; ii) Changing a nonconforming use to another nonconforming use as herein provided and authorized; provided, however, that the termination shall apply only to the nonconforming use existing prior to any change; iii) Non-operation or non-use of a nonconforming use for a period of six ( 6) or more successive calendar months; or or more successive iv) Vacancy or discontinuance for a period of six ( 6) calendar months of the structure or that part of a structure occupied by the nonconforming use; 5) The abatement period established in Subsection( b)( 1) herein is subject to appeal to the City Council by written notice delivered to the City Secretary prior to the expiration of two ( 2) year( s) after the adoption of this Article. Section Penalty Any person, firm, company, corporation or other organization which shall violate any provision of this Article shall be guilty of a class C misdemeanor, and on conviction may be punished by a fine in accordance with the general penalty provision found in Section of this Code. Each day that the violation continues shall constitute a separate offense and shall be treated accordingly. 1