BILL #2360 ORDINANCE #2360

BILL #2360 ORDINANCE #2360 AN ORDINANCE OF THE CITY OF WILDWOOD, MISSOURI, AMENDING SECTION 210.375 OF THE CODE OF ORDINANCES OF THE CITY OF WILDWOOD BY DELETING IT IN ITS ENTIRETY AND ENACTING, IN LIEU THEREOF, A NEW SECTION 210.375; AMENDING ARTICLE IX OF CHAPTER 210 BY ENACTING A NEW SECTION 210.376; AMENDING SECTION 210.380 BY DELETING IT IN ITS ENTIRETY AND ENACTING, IN LIEU THEREOF, A NEW SECTION 210.380; AMENDING SUBSECTION (A) OF SECTION 210.385 BY DELETING IT IN ITS ENTIRETY AND ENACTING, IN LIEU THEREOF, A NEW SUBSECTION (A) OF SECTION 210.385; AMENDING SUBSECTION (O) OF SECTION 235.040 BY DELETING IT IN ITS ENTIRETY AND ENACTING, IN LIEU THEREOF, A NEW SUBSECTION (O) OF SECTION 235.040; AND AMENDING TITLE VI BY ENACTING A NEW CHAPTER 601; REGULATING AND LICENSING THE USE AND DISTRIBUTION OF CIGARETTES AND TOBACCO PRODUCTS IN THE CITY. WHEREAS, the Family Smoking Prevention and Tobacco Control Act of 2009 (the Act ) granted the U.S. Food and Drug Administration (the FDA ) the authority to regulate all tobacco products; and WHEREAS, in May of 2016, the FDA published the final deeming regulation declaring that electronic nicotine delivery systems that met the definition of tobacco product were under the authority of the FDA; and WHEREAS, the Act expressly preserves the authority of a local government to enact, adopt, promulgate and enforce any regulation with respect to the sale, distribution, possession, exposure to, access to, advertising and promotion of or use of tobacco products by individuals of any age, that is in addition to, or more stringent than, provisions under the Act; and WHEREAS, Sections 407.925-407.934, RSMo., regulate the sale of tobacco products and vapor products; and WHEREAS, Section 407.932, RSMo., provides, [n]othing in sections 407.925 to 407.932 shall prohibit local political subdivisions from enacting more stringent ordinances or rules[;] and WHEREAS, the Centers for Disease Control and Prevention (the CDC ) has reported that tobacco use remains the leading cause of preventable death in the United States, killing more than 480,000 people per year; and WHEREAS, according to the Surgeon General of the United States, approximately 90 percent of adult smokers started by age 18 and almost no one begins smoking after age 21; and WHEREAS, the FDA, in light of the strong connection between children and tobacco, has declared that smoking is fundamentally a pediatric disease[;] and WHEREAS, studies show that when tobacco companies employ discounting schemes to lower product prices, populations with limited economic resources, such as youth, are sensitive to the discounted price and encouraged to initiate a smoking habit or to smoke more often, thus entrenching an existing habit; and 1

WHEREAS, flavored tobacco products are marketed specifically to youth and are just as deadly as cigarettes, according to the American Cancer Society; and WHEREAS, a 2015 Harvard study demonstrated that many e-liquid flavors contain a chemical linked to dangerous lung disease; and WHEREAS, the FDA has warned that electronic cigarettes contain carcinogens and toxic chemicals; and WHEREAS, the CDC has reported that electronic cigarettes are now the most widely-used tobacco product among both middle school and high school students; and WHEREAS, the CDC has reported that electronic cigarette use among middle and high school students experienced a nearly tenfold increase from 2011-2015; and WHEREAS, the FDA has reported in 2013-2014, 81 percent of youth electronic cigarette users cited the availability of appealing flavors as the primary reason for use; and WHEREAS, more than 7,700 unique e-liquid flavors currently exist and most of them are fruit or candy flavors; and WHEREAS, the term tobacco product, as defined herein, generally encompasses the abovereferenced terms electronic nicotine delivery systems, vapor products, tobacco, flavored tobacco products, electronic cigarettes and e-liquids; and WHEREAS, sales restrictions serve a legitimate governmental interest of the City by reducing youth access to cigarettes and tobacco products in the community; and WHEREAS, the City Council finds and determines that the regulation and licensing of cigarettes and tobacco products in the City will benefit the public health, safety and welfare of the residents of the City. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF WILDWOOD, MISSOURI, AS FOLLOWS: Section One. That Section 210.375 of the Code of Ordinances of the City of Wildwood, Missouri, be and is hereby amended by deleting it in its entirety, and there is hereby enacted, in lieu thereof, a new Section 210.375, to read as follows: Section 210.375 Definitions. As used in Sections 210.375 through 210.390 and Chapter 601, the following words shall mean: Characterizing Flavor A distinguishable taste or aroma, other than the taste or aroma of tobacco, menthol, mint or wintergreen, imparted either prior to or during consumption of a tobacco product or component part thereof, including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb or spice and 2

concepts such as spicy, arctic, ice, cool, warm, hot, mellow, fresh, and breeze; provided, however, that no tobacco product shall be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Cigarette Any product that contains tobacco or any substitute therefor, wrapped in paper or any substitute therefor, weighing not to exceed three pounds per one thousand cigarettes and which is commonly classified, labeled or advertised as a cigarette. City Administrator The City Administrator or his/her designee. Component Part Any element of a tobacco product, including, but not limited to, the tobacco, filter and paper, but not including any constituent. Constituent Any ingredient, substance, chemical or compound, other than tobacco, water or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture or packing of the tobacco product. Such term shall include a smoke constituent. Distribute A conveyance to the public by sale, barter, gift or sample. Electronic Smoking Device Any device that can be used to deliver aerosolized or vaporized nicotine or other substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen or e-hookah. Any electronic smoking device shall be presumed to contain nicotine, absent proof to the contrary. Electronic smoking device includes any component, part or accessory of such a device, whether or not sold separately, and includes any substance intended to be aerosolized or vaporized during the use of the device. Electronic smoking device does not include drugs, devices, modified risk tobacco products or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act. Flavored Tobacco Product Any tobacco product or any component part thereof that contains a constituent that imparts a characterizing flavor. A public statement or claim made or disseminated by the manufacturer of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such tobacco product, that such tobacco product has or produces a characterizing flavor shall constitute presumptive evidence that the tobacco product is a flavored tobacco product. Mainstream Tobacco Smoke Smoke formed by the combustion or heating of any tobacco product and inhaled and exhaled by the person using the tobacco product. 3

Retail Tobacco Store A retail store utilized primarily for the sale of tobacco products, cigarettes and/or component parts in which the gross annual revenues generated by the sale of other products are no greater than twenty-five percent (25%) of the gross annual revenues for the establishment. For the purposes of this Chapter, beginning July 1, 2018, revenues will be determined based on the previous calendar year. The City Administrator may promulgate any rules or forms necessary for such determination and/or implementation of these terms. Retailer Any person who sells to a consumer or to any person for any purpose other than resale. Rolling Papers Paper designed, manufactured, marketed or sold for use primarily as a wrapping or enclosure for tobacco, which enables a person to roll loose tobacco into a smokable cigarette. Samples A cigarette or tobacco product distributed to members of the general public at no charge for purposes of promoting the product. Sidestream Tobacco Smoke Smoke formed by the combustion or heating of any tobacco product and released directly into the air without first being inhaled by the person using the tobacco product. Smoke Constituent Any chemical or chemical compound in mainstream or sidestream tobacco smoke that either transfers from any component of the tobacco product to the smoke or that is formed by the combustion or heating of tobacco, additives or other component of the tobacco product. Smoking Lounge An establishment whose business is primarily devoted to the serving of tobacco products and/or cigarettes for consumption on the premises, in which the gross annual revenues generated by cigarette and tobacco product sales are greater than fifty percent (50%) of the gross annual revenues for the establishment and the serving of food and alcohol is only incidental to the consumption of such tobacco products. For the purposes of this Chapter, beginning July 1, 2018, revenues will be determined based on the previous calendar year. The City Administrator may promulgate any rules or forms necessary for such determination and/or implementation of these terms. Tobacco Product Any product that is made from or derived from tobacco, and is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled or ingested by any other means, including, but not limited to, a cigar, pipe tobacco, chewing tobacco, snuff, snus or an electronic smoking device. The term includes any component or accessory used in the consumption of a tobacco product, such as filters, rolling papers, pipes or liquids used in electronic smoking devices. Tobacco product does not 4

include cigarettes, including those cigarettes subject to the special rule for cigarettes relating to characterizing flavors of the Federal Family Smoking and Tobacco Prevention Act, drugs, devices, modified risk tobacco products or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act. Vending Machine Any mechanical, electric or electronic self-service device which, upon insertion of money, tokens or any other form of payment, dispenses cigarettes or tobacco products. Section Two. That Article IX of Chapter 210 of the Code of Ordinances of the City of Wildwood, Missouri, be and is hereby amended by enacting a new Section 210.376, to read as follows: Section 210.376 Sale of Flavored Tobacco Products, Distribution of Cigarette or Tobacco Product Samples Prohibited. A. It shall be unlawful for any person to distribute or offer for distribution, or to possess with intent to distribute or offer for distribution, any flavored tobacco product to a consumer, except in a retail tobacco store or smoking lounge. B. There shall be a presumption that a retailer in possession of four or more flavored tobacco products, which shall include individual tobacco products, packages of tobacco products, or any combination thereof, possesses such tobacco products with intent to distribute or offer for distribution. C. It shall be unlawful for any person to distribute, or to possess with the intent to distribute, cigarette or tobacco product samples. D. There shall be a presumption that a retailer in possession of four or more cigarette or tobacco product samples possesses such cigarette or tobacco product samples with intent to distribute samples. Section Three. That Section 210.380 of the Code of Ordinances of the City of Wildwood, Missouri, be and is hereby amended by deleting it in its entirety, and there is hereby enacted, in lieu thereof, a new Section 210.380, to read as follows: Section 210.380 Distribution of Cigarettes and Tobacco Products Through Vending Machines, Distribution to Persons Under 21 Years of Age by Any Means, Possession by Persons Under 18 Years of Age Prohibited. A. It shall be unlawful to sell cigarettes or tobacco products by means of any vending machine. B. No person under eighteen (18) years of age shall possess any cigarettes or tobacco products unless such person is an employee of a seller of cigarettes or tobacco products and is in such possession to effect a sale in the course of employment, such person is an employee of the division of liquor control and is in such possession for enforcement purposes pursuant to Subsection 5 of Section 407.934, RSMo., or such person is in such possession for 5

enforcement purposes pursuant to Section 602.369 of the St. Louis County Code of Ordinances. C. It shall be unlawful for any person to distribute, cause to be distributed, buy for or furnish cigarettes or tobacco products to any person under twenty-one (21) years of age. A person distributing cigarettes or tobacco products shall require proof of age from any prospective purchaser or recipient unless such person has reasonable and certain knowledge that the prospective purchaser or recipient is twenty-one (21) years of age or older. D. If cigarettes or tobacco products are distributed by an employee of an owner of an establishment in violation of this Section, the employee shall be guilty of violating this Section. If a vending machine is used in violation of Subsection (A) of this Section, the owner of the establishment shall be guilty of violating this Section. E. Reasonable reliance on proof of age or on the appearance of the purchaser or recipient shall be a defense to any action for a violation of this Section. No person shall be liable for more than one (1) violation of this Section on any single day. F. Any person who violates the provisions of Subsection (B) of this Section shall be penalized as follows: a. For the first violation, the person shall be punished by a fine of not more than four hundred dollars ($400.00), and shall have any cigarettes or tobacco products confiscated. b. For a second violation and any subsequent violations, the person shall be punished by a fine of not more than four hundred dollars ($400.00), and shall have any cigarettes or tobacco products confiscated and shall complete a tobacco education or smoking cessation program, if available. Section Four. That Subsection (A) of Section 210.385 of the Code of Ordinances of the City of Wildwood, Missouri, be and is hereby amended by deleting it in its entirety, and there is hereby enacted, in lieu thereof, a new Subsection (A) of Section 210.385, to read as follows: Section 210.385 Prohibition of Vending Cigarettes or Tobacco Products Without a Sign. A. It shall be unlawful for any person to distribute, cause to be distributed, furnish or permit the sale or distribution of cigarettes or tobacco products, unless the premises upon which such items are distributed prominently displays a sign which shall contain in red lettering at least one-half inch high on white background: IT IS A VIOLATION OF THE LAW FOR CIGARETTES OR TOBACCO PRODUCTS TO BE SOLD TO ANY PERSON UNDER THE AGE OF 21. 6

Section Five. That Subsection (O) of Section 235.040 of the Code of Ordinances of the City of Wildwood, Missouri, be and is hereby amended by deleting it in its entirety, and there is hereby enacted, in lieu thereof, a new Subsection (O) of Section 235.040, to read as follows: Section 235.040 General Requirements Park Properties and Trail Corridors. O. Smoking of Cigarettes or Tobacco Products. No person shall use any cigarette or tobacco product, or carry any burning or lighted cigarette or tobacco product in any park property or trail corridor. 1. For the purposes of this Subsection, the terms cigarette and tobacco product shall have the same meaning as set forth in Section 210.375 of this Code. Section Six. Title VI of the Code of Ordinances of the City of Wildwood, Missouri, be and is hereby amended by enacting a new Chapter 601, to read as follows: Chapter 601 Tobacco Product Regulations. Section 601.010 Definitions. Words used in this Chapter shall have the same meaning as set forth in Section 210.375 of this Code. Notwithstanding the foregoing, as used in this Chapter, the following words shall mean: Applicant Any person who applies for a license as required by this Chapter. Coupon Any card, paper, note, form, statement, ticket or other issue distributed for commercial or promotional purposes to be later surrendered by the bearer so as to receive an article, service or accommodation without charge or at a discount price. Good Moral Character 1. Honesty, fairness and respect for the rights of others and for the laws of the State and nation. The following factors shall be considered when making a determination of whether an applicant or licensee under this Chapter has good moral character: a. The nature and character of the business for which the license is sought; b. The manner in which the person has conducted his/her/its business; and c. The manner in which the person has observed or violated the law. 2. If a person has been convicted of a crime of this State or nation, or of any crime of any other state or nation that would have been a crime under the laws of the State of Missouri, or an offense of this City, the City Administrator shall also weigh the following factors in determining if the person has good moral character: 7

a. The type of crime(s) or offense(s) for which a person has been convicted; b. The circumstances surrounding the crime(s) or offense(s) for which a person has been convicted; c. The proximity in time of the conviction(s) to the application for a license; d. The conduct of the person since the date of conviction; and e. Whether the crime the person is convicted of is reasonably related to the competency of the person to exercise the licensed business. 3. Notwithstanding the foregoing, a conviction cannot be the sole grounds on which a person is determined to lack good moral character. If a person is pardoned from a conviction, the underlying guilt for the crime or offense may still be evidence of such person's good moral character. Listed or Nondiscounted Price The higher of the price listed for a tobacco product on its package or the price listed on any related shelving, posting, advertising or display at the place where the tobacco product is sold or offered for sale plus all applicable taxes if such taxes are not included in the stated price, and before the application of any discounts or coupons. Premises The entire building in which the licensee has his/her/its place of business and any additional building used in connection therewith, and the entire lot, or parcel of land on which the buildings are situated, or which are used in connection with the building. Section 601.020 License Required. A. It shall be unlawful for any person, whether by himself/herself/itself or through an agent, servant or employee, to operate a retail tobacco store or smoking lounge within the City without having first obtained a license pursuant to this Chapter. Such license shall be in addition to any other license required by State and/or federal law. B. The annual license fee shall be twenty-five dollars ($25.00). In case any license under the provisions of this Chapter is denied, revoked, suspended, surrendered or forfeited by the licensee, not used or used for only part of the license period, after the effective beginning date of such license, no refund of any license fee or part thereof shall be made. C. The provisions of Chapter 605 of the City Code shall apply to this Chapter, including, but not limited to, the provisions which address suspension, revocation, denial or renewal of licenses and delinquent or late penalty fees. The specific provisions of this Chapter shall control and take precedence over any provision of Chapter 605 to the contrary. Section 601.030 Application for License and Renewal. 8

A. Filing of an Application. 1. Each application for an original or renewal license shall be filed with the City Clerk on a form to be provided by the City, signed and sworn to by the applicant. Each application shall be accompanied by a proper remittance reflecting the appropriate license fee made payable to the City. 2. Upon receipt of application, in addition to answering all other questions thereon, the applicant shall state his/her name and address if a person, or if a firm, partnership or association, the name and address of each member of the firm, partnership or association so applying, or, if the applicant is a corporation, the names and addresses of all its officers, members of its Board of Directors and ownership interests shall be required. 3. All applications shall contain information describing in detail the premises for which a given license is being applied and the location or address thereof. 4. The application shall be accompanied by a recent photograph of the individual signing his/her name, together with a recent picture of the exterior and interior of the premises to be provided at the time the license is issued. 5. No license shall be granted hereunder unless the applicant renders full, true and complete answers to all questions contained on said application, and should an applicant make, or cause to be made, any false statements of a material matter in his/her said application, the same shall be deemed cause for denial, suspension or revocation of any license issued pursuant to such application. 6. All applicants must execute a release for criminal background checks and submit fingerprint impressions to assist in that background check. Any criminal background check conducted on applicants shall include any and all law enforcement agencies or divisions of the federal, State or any municipal governments as the City Administrator determines to be necessary and appropriate. B. Qualifications. 1. No person shall be granted a license under this Chapter unless such person is of good moral character, a qualified legal voter and taxpaying citizen of the State, nor shall any corporation be granted a license hereunder unless the managing officer of such corporation has the above-mentioned qualifications, and no person shall be granted a license hereunder whose license as such retailer has been revoked, or who has been convicted of a violation of the provisions of any law applicable to the distribution or manufacture of cigarettes or tobacco products, or who employs in his/her/its business as such retailer any person whose license has been revoked or who has been convicted of violating the provisions of any such law. 9

2. No license provided for in this Chapter shall be issued to any corporation except in conformity with the following: a. All officers of such corporation must be persons of good moral character. b. The person who is to be, in fact, actively engaged in the actual control and management of the particular retail tobacco store or smoking lounge for which a license is sought by such corporation shall be one who is eligible for a license as an individual under the provisions of this Chapter. c. Such corporation shall not have been the holder of a license for the distribution or manufacture of cigarettes or tobacco products which has been revoked by the City or other jurisdiction in this State. 3. The City Administrator may consider the following when making a determination of approval or disapproval of an application for a license: a. Appropriate zoning exists for the proposed licensed premises; b. The record of the owner and managers of the proposed licensed premises as law abiding persons; c. The nature, amount and frequency of complaints and incidents at the proposed licensed premises requiring intervention by any law enforcement agencies; d. Compliance of the proposed licensed premises with City Building Codes; e. Compliance of the premises with all Fire Codes applicable to the proposed licensed premises; f. Prior violations of federal, State of Missouri and City of Wildwood statutes and ordinances pertaining to the regulation of the distribution of tobacco products; g. The moral character of the manager and owner of the proposed licensed premises; and h. The moral character of any employee at the proposed licensed premises. C. Upon approval of any application, the City Administrator shall grant the applicant a license to conduct business in the City for a term to expire with the thirtieth (30 th ) day of June next 10

succeeding the date of such license, unless such license be revoked or suspended before the expiration of such time. Section 601.040 General License Regulations. A. Any license granted under the provisions of this Chapter shall be displayed in a conspicuous place within the business so licensed. B. A separate license shall be required for each place of business. Every license issued under the provisions of this Chapter shall particularly describe the premises at which tobacco products may be distributed thereunder, and such license shall not be deemed to authorize or permit the distribution of tobacco products at any place other than that described therein. C. No license issued under this Chapter shall be transferable or assignable except as herein provided. In the event of the death of the licensee, the widow or widower or the next of kin of such deceased licensee, who shall meet the other requirements of this Chapter, may make application and the City Administrator may transfer such license to permit the operation of the business of the deceased for the remainder of the period for which a license fee has been paid by the deceased. Whenever one (1) or more members of a partnership withdraws from the partnership the City Administrator, upon being requested, shall permit the remaining partner, or partners, originally licensed, to continue to operate for the remainder of the period for which the license fee has been paid, without obtaining a new license. D. In the event any licensee desires to change the location of his/her/its place of business in the City, it shall be necessary for him/her/it to file an application in the same manner as herein provided for an original application. Any change of location of the enterprise prior to issuance of such an amended license shall constitute a violation of this Section. Section 601.050 Regulations Applicable to Licensees, Their Employees and Agents. A. A person who holds a license issued under this Chapter, or any employee or agent of the same: 1. Shall not accept or redeem, offer to accept or redeem, or cause or hire any person to accept or redeem or offer to accept or redeem any coupon that provides any tobacco products without charge or for less than the listed or nondiscounted price. 2. Shall not sell tobacco products to consumers through any multi-pack discounts (e.g., buy-two-get-one-free ) or otherwise distribute to consumers any tobacco products without charge or for less than the listed or nondiscounted price in exchange for the purchase of any other tobacco product. 3. Shall comply with the signage requirements of Section 210.385 of this Code. 11

B. A person who holds a license issued under this Chapter, or any employee or agent of the same, distributing, offering for distribution or possessing with the intent to distribute flavored tobacco products: 1. Shall require all flavored tobacco products to be kept behind retail counters and all distribution of flavored tobacco products to be clerk-assisted. 2. Shall not distribute, offer for distribution or possess with the intent to distribute flavored tobacco products in any location where any person under twenty-one (21) years of age is permitted to enter. Section 601.060 Administration of Law License Suspension. A. Suspension or Revocation of License When Manner. The City Administrator may suspend or revoke the license of any person for any of the following reasons: 1. The violation of this Chapter or any provision of this Code; 2. The failure to obtain or keep any license for tobacco sales required by State and/or federal laws; or 3. The making of, or causing to be made, a false statement in an application for a license under this Chapter. B. Automatic Revocation or Suspension. A license shall be revoked automatically if any license required by State or federal laws for tobacco sales is revoked. A license shall be suspended automatically if any license required by State or federal laws for tobacco sales is suspended, and the suspension shall be for a term not less than that imposed by the State or federal entity. C. Effect of Suspension. No person whose license shall have been suspended shall distribute, offer for distribution or possess with the intent to distribute any tobacco product during the time such suspension is in effect. Any licensee desiring to keep the premises open for the sale of food or merchandise during the period of suspension shall display the order of suspension in a conspicuous place on the premises so that all persons visiting the premises may readily see the same. D. Appeal. Any applicant or licensee aggrieved by a decision of the City Administrator may appeal such decision pursuant to Chapter 150 of this Code. Section Seven. Effective Date. This Ordinance shall be in full force and effect on and after its passage and approval. Section Eight. Savings. Except as expressly set forth herein, nothing contained in this Ordinance shall in any manner be deemed or construed to alter, modify, supersede, supplant or otherwise nullify any other Ordinance of the City or the requirements thereof whether or not relating to or in manner connected with the subject matter hereof. 12

Section Nine. Severability. If any term, condition, or provision of this Ordinance shall, to any extent, be held to be invalid or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective and each and every remaining provision hereof shall be valid and shall be enforced to the fullest extent permitted by law, it being the intent of the City Council that it would have enacted this Ordinance without the invalid or unenforceable provisions. In the event of a subsequent change in applicable law so that the provision, which had been held invalid, is no longer invalid, said provision shall thereupon return to full force and effect without further action by the City and shall thereafter be binding. This Bill was passed and approved this day of, 2018, by the Council of the City of Wildwood, Missouri, after having been read by title, or in full, two (2) times prior to its passage. Presiding Officer ATTEST: City Clerk The Honorable James R. Bowlin, Mayor ATTEST: City Clerk 13