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HomeMy WebLinkAboutItem 16 Proposed Changes to Springfield Municipal Code 5.300 and 7.450-452 to Address Recent Changes in State Law Regarding E-Cigarettes AGENDA ITEM SUMMARY Meeting Date: 3/7/2016 Meeting Type: Regular Meeting Staff Contact/Dept.: Mary Bridget Smith, City Attorney’s Office Staff Phone No: 541.746.9621 Estimated Time: 15 Minutes S P R I N G F I E L D C I T Y C O U N C I L Council Goals: Promote and Enhance our Hometown Feel while Focusing on Livability and Environmental Quality ITEM TITLE: PROPOSED CHANGES TO SPRINGFIELD MUNICIPAL CODE 5.300 AND 7.450-452 TO ADDRESS RECENT CHANGES IN STATE LAW REGARDING E-CIGARETTES. ACTION REQUESTED: Conduct a first reading of the following ordinances: AN ORDINANCE AMENDING THE SPRINGFIELD MUNICIPAL CODE SECTION 5.300 REGARDING SALE AND DISTRIBUTION OF TOBACCO, TOBACCO PRODUCTS, AND INHALANT DELIVERY SYSTEMS TO MINORS. AN ORDINANCE AMENDING THE SPRINGFIELD MUNICIPAL CODE SECTION 7.450 and 7.452 REGARDING TOBACCO AND INHALANT DELIVERY SYSTEM VENDING. ISSUE STATEMENT: Update the Municipal Code to reflect state changes in regulating nicotine products and e-cigarettes, specifically by amending SMC 5.300 and SMC 7.450-452 to define “inhalant delivery systems” and regulate them in the same manner as tobacco products. ATTACHMENTS: Attachment 1 – Council Briefing Memo Attachment 2 – Proposed Ordinance amending SMC 5.300 Attachment 3 – Proposed Ordinance amending SMC 7.450-452 DISCUSSION/ FINANCIAL IMPACT: Changes SMC 5.300 to include “inhalant delivery products” and updates the definition of “tobacco products”; changes SMC 7.450-452 to include “inhalant delivery products. The proposed ordinances close the loophole that currently does not require e-cigarette vendors to obtain a city business license or pay a license fee. It is unknown how many e-cigarette retailers and e-cigarette vending machine operators would be required to obtain a license. M E M O R A N D U M City of Springfield 3/3/2016Page 1 M E M O R A N D U M City of Springfield Date: 2/29/2016 To: Gino Grimaldi COUNCIL From: Mary Bridget Smith Kristina Kraaz BRIEFING Subject: Proposed Code Changes to Address E-Cigarettes MEMORANDUM ISSUE: Update the Municipal Code to reflect state changes in regulating nicotine products and e-cigarettes? The purpose of the change would be to regulate e-cigarettes (inhalant delivery devices that deliver nicotine) in the same way that the City regulates traditional tobacco products. COUNCIL GOALS/ MANDATE: Preserve Hometown Feel, Livability, and Environmental Quality BACKGROUND: During the 2015 Regular Session, the Oregon Legislature passed HB 2546, which effectively equates regulation of e-cigarettes (“inhalant delivery systems”) with regulation of tobacco. HB 2546 amended the existing Indoor Clean Air Act (ICCA) to include e-cigarettes. The legislation added a definiton for “inhalant delivery system,” which includes devices and products intended to deliver nicotine or cannabinoids to an individual through “vaping.” The new law allows the state to prohibit use of e-cigarettes and “vaping” in the same places that it prohibits traditional smoking and other tobacco use. The state is responsible for charging and prosecuting violations of the ICAA. Currently, the Oregon Health Authority is developing administrative rules that are meant to reduce tobacco and e-cigarette sales to minors related to child resistant packaging, packaging that is not attractive to minors, and labeling requirements. A separate rule advisory committee is addressing e-cigarettes and the Indoor Clean Air Act (ICAA). These rules will focus on keeping workplaces and other public areas smoke free, including vapor from e-cigarettes. Lane County has proposed significant changes to its tobacco retailer code, and is encouraging cities in the county to follow its lead by adopting similar regulations because the county code provisions only apply to the unincorporated areas of the County. For example, Lane County is prohibiting any new tobacco retailers from obtaining a county operating license for tobacco or e- cigarette sales within 1,000 feet of a school. Aditionally, the County’s new code provisions allow Lane County Health and Human Services to seize and destroy tobacco products offered for sale without a license. Eugene has not yet adopted any changes to its current tobacco code to include e-cigarettes or non-traditional nicotine products. But, Eugene does have a license requirement for tobacco retailers and an administrative enforcement process for violations. CURRENT SPRINGFIELD CODE: There are two existing Code sections that address tobacco sales: SMC 5.300 – Sale and Distribution of Tobacco and Tobacco Products to Minors, and SMC 7.450-452 – Tobacco Vending. The definition of “tobacco products” is found in SMC 5.300(1). The current Attachment 1, Page 1 of 3 MEMORANDUM 3/3/2016 Page 2 definition does not currently include any language that encompasses e-cigarettes. In addition, SMC 7.450-452 currently only extends to “tobacco” as definied in SMC 5.300 and also does not include e-cigarettes. Because e-cigarettes are not considered tobacco, vendors of e-cigarettes are currently not regulated by the City in the way that traditional tobacco retailers are regulated. PROPOSED ORDINANCES: Attached are two proposed ordinances drafted in response to the recent state legislation. The first ordinance adopts the state’s definition of “inhalant delivery system” and includes this definition in SMC 5.300 – Sale and Distribution of Tobacco and Tobacco Products to Minors. The proposed ordinance also updates the definition of “tobacco products” to mirror the current definition under state law, which is more explicit about the types of products that are covered. The second ordinance adds “inhalant delivery system” to SMC 7.450-452, the city’s regulations regarding tobacco vending machines. By adding those provisions, the City will be able to regulate the use and sale of e-cigarettes in the same way it regulates the sale of tobacco products. Changing the municipal code to include e-cigarettes means that e-cigarette retailers would be required to obtain a license from the city and pay the license fee. In addition, local law enforcement would be able to enforce the municipal code provisions that prohibit tobacco sales to minors against retailers of e-cigarettes. The proposed ordinances are consistent with the new changes in state law. The code changes close existing loopholes that allow e-cigarette vendors to operate in the City without the same protections required of traditional tobacco retailers. ENFORCEMENT AND PREVENTING SALES TO MINORS: Currently, SMC 5.300(3) prohibits sales of tobacco products to minors. SMC 5.300(8)-(12) provide a civil enforcement mechanism to prosecute violations, including civil penalities and forfeitures. The proposed ordinance includes e-cigarettes in the prohibition of sales to minors and enable the City to prosecute e-cigarette retailers who sell to minors for municipal code violations. In addition, the state currently runs two inspection programs for preventing tobacco sales to minors that are “decoy” programs using minors and retired state police officers. OHA conducts random, unannounced annual enforcement inspections through its Tobacco Retailer Compliance Program. OHA predicts that it will conduct approximately 1,500 of these inspections out of around 3,000 tobacco retailers statewide. These inspections are funded through the state general fund and through the beer and wine tax revenue. In addition, OHA conducts random inspections through the Synar Program purely for data collection and reporting requirements; the results of the survey are reported as Oregon’s Retailer Violation Rate annually by the federal Substance Abuse and Mental Health Services Administration. Under the new changes to state law, these two state inspection programs will include e-cigarette retailers. The FDA also conducts inspections of tobacco retailers. FDA records show 76 inspections conducted in Springfield since March 2015, all of which involved minors attempting to purchase tobacco products (9 inspections resulted in a warning letter). Currently, however, these inspections extend only to retailers of cigarettes and smokeless tobacco products; e-cigarettes retailers are not subject to inspections by the FDA. FISCAL IMPACTS: Currently, e-cigarette retailers who do not also sell traditional tobacco products do not have to obtain a City business license or pay the license fee. The proposed ordinances close that loophole, and would require vendors of both traditional tobacco products and e-cigarettes to obtain a business license and pay the license fee. The fee is currently $88.20 per year for initial tobacco retail licenses and $57.75 for renewal, and $35.70 per year for tobacco vending licenses. Attachment 1, Page 2 of 3 MEMORANDUM 3/3/2016 Page 3 It is unknown how many e-cigarette retailers or vending machine operators would be required to obtain licenses under the ordinance. Also, please note that the City currently receives a portion state tobacco and cigarette tax revenues that are put into the general fund. In FY 15 the City received $80,139. The amount that the City receives is partially based upon the taxes collected in Lane County and partially based upon the Springfield’s population. E-cigarettes are not currently taxed by the state, but there were several bills introduced in the 2015 legislature that would have taxed e-cigarettes. RECOMMENDED ACTION: Conduct a first reading of the two proposed ordinances that amend the Springfield Municipal Code 5.300 and 7.450-452 to include “inhalant delivery systems” and to be consistent with state law. Attachment 1, Page 3 of 3 ORDINANCE No. __________ (General) AN ORDINANCE AMENDING THE SPRINGFIELD MUNICIPAL CODE SECTION 5.300 REGARDING SALE AND DISTRIBUTION OF TOBACCO, TOBACCO PRODUCTS, AND INHALANT DELIVERY SYSTEMS TO MINORS The City Council of the City of Springfield finds that: WHEREAS, the 2015 Oregon Legislature enacted House Bill 2546 (2015), which amends the existing Indoor Clean Air Act to include regulation of inhalant delivery systems such as e-cigarettes in addition to tobacco products and cigarettes; and WHEREAS, the Oregon Health Authority is in the process of developing administrative rules meant to reduce tobacco and e-cigarette sales to minors; and WHEREAS, e-cigarettes are a new product and the City seeks to develop regulations that protect public health and safety; and WHEREAS, the City of Springfield wishes to develop reasonable regulations for this product to prevent and prohibit the sale of e-cigarettes and other inhalant delivery systems to minors; and WHEREAS, the City of Springfield believes it is in the best interest of the health, safety and welfare of the citizens of the city to adopt and include such regulations in the Municipal Code; and WHEREAS, the City of Springfield has determined that the enforcement on the state level is consistent with City policy and other enforcement actions by the City. NOW, THEREFORE, based on the foregoing recitals, the Common Council of the City of Springfield ordains as follows: Section 1. Subsection 5.300 of the Springfield Municipal Code is hereby amended to read as follows: “5.300 Sale and Distribution of Tobacco, Tobacco Products, and Inhalant Delivery Systems to Minors. (1) Definitions. For the purposes of this section, the following mean: Minor. Any person under eighteen years of age. Civil Infraction. An offense against the City in the form of a violation of this section. Cigarette. Any roll of tobacco wrapped in paper or in any substance not containing tobacco; tobacco, in any form, that is functional in the product and that, because of its appearance, the type of tobacco used in the filler Attachment 2, Page 1 of 5 or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; any roll of tobacco that is wrapped in any substance containing tobacco and that, because of its appearance, the type of tobacco used in the filler or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in this subsection; or as otherwise defined under Oregon law. Tobacco Product. Bidis, cigars, cheroots, stogies, periques, granulated, plug cut, crimp cut, ready rubbed and other smoking tobacco, snuff, snuff flour, Cavendish, plug and twist tobacco, fine-cut and other chewing tobaccos, shorts, refuse scraps, clippings, cuttings and sweepings of tobacco and other forms of tobacco, prepared in a manner that makes the tobacco suitable for chewing or smoking in a pipe or otherwise, or for both chewing and smoking; cigarettes; or as otherwise defined under Oregon law. Tobacco Retail Store. A retail store utilized primarily for the sale of tobacco products and accessories, and in which the sale of other products is merely incidental. Inhalant Delivery System. A devise that can be used to deliver nicotine or cannabinoids in the form of a vapor or aerosol to a person inhaling from the device; or a component of a device described in this subparagraph or a substance in any form sold for the purpose of being vaporized or aerosolized by a device described in this subparagraph, whether the component or substance is sold separately or is not sold separately; or as otherwise defined under Oregon law. This definition does not include tobacco products, or any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for any other therapeutic purpose, if the product is marketed and sold solely for the approved purpose, or as otherwise exempted under Oregon law. Inhalant Delivery System Retail Store. A retail store utilized primarily for the sale of inhalant delivery system products and accessories, and in which the sale of other products is merely incidental. Vendor-assisted sales. Sales in which only a store owner or employee has access to the tobacco product or inhalant delivery system and assists the customer by supplying the tobacco product or inhalant delivery system, and in which the customer does not take possession of the tobacco product or inhalant delivery system until after it is purchased. (2) License Fee. No tobacco or inhalant delivery system retailer’s license shall be issued or continue to be valid unless the holder thereof has paid the fees as required by this section. Attachment 2, Page 2 of 5 (3) Sales to Minors. It shall be a violation of this section for a retailer to sell tobacco products or inhalant delivery systems to minors. (4) Vendor-Assisted Sales. Except as provided in subsection (5) of this section or sales by retail stores or from vending machines licensed by the city, no person or business may sell, permit to be sold, or offer for sale any tobacco product or inhalant delivery system by means other than vendor-assisted sales. (5) Scope of Ordinance. This section shall not apply to tobacco vending machines regulated by Oregon state law, or to any business, retailer, or establishment that is licensed by the Oregon Liquor Control Commission for a dispensing license and where the premises are permanently and entirely off-limits to minors under rules adopted by the Oregon Liquor Control Commission. (6) Non-retaliation. No person or employer may discharge, refuse to hire, or in any manner retaliate against any employee, applicant for employment, or customer because such employee, applicant, or customer reports or attempts to prosecute any violation of this section. (7) License. Except as provided in subsection (5) of this section, no person or business shall sell or offer for sale any tobacco product or inhalant delivery system unless a license is obtained from the city in accordance with section 7.000 of this code. The license shall be renewed annually. The license is not transferrable. The license may be denied, suspended, or revoked on the basis of three violations of this section within a year, or upon failure to pay a fine specified in subsections (10) and (11) of this section. Denial or revocation of a license may be in addition to the penalties and forfeitures provided in subsections (10) and (11). An annual license fee will be established by resolution of the common council. (8) Citation and Complaint. (a) If a store clerk fails to comply with the provisions of subsections (1)- (7) of this section then a civil infraction citation signed by a Lane County public health representative or an Oregon state police officer shall be filed with the municipal court charging the person who failed to comply with a civil infraction and setting a date for the person to appear before the municipal court to answer the charge. (b) The civil action citation, together with a complaint, shall be filed with the municipal court. (c) The city prosecutor shall prescribe the form of the infraction citation and complaint. Additional parts may be inserted for administrative purposes by those charged with the enforcement of this section. Attachment 2, Page 3 of 5 (d) The citation may also contain notice to the person cited that a civil complaint may be filed in the municipal court. (e) The complaint shall contain a form of verification that the person signing the complaint swears or affirms that he or she has reasonable grounds to believe, and does so believe that the person committed the infraction. (9) Service, Answer and Hearing. (a) Service of the uniform civil citation shall be made as specified in section 5.616 of this code. (b) A person who receives a citation alleging a civil infraction shall answer or respond as set forth in section 5.618 of this code. (c) The hearing to determine whether a civil infraction has occurred shall be held in accordance with section 5.620 of this code. (10) Penalties. Violation of this section shall be punishable as a violation and may include a fine not exceeding $720.00 pursuant to SMC section 1.205. The fine will be levied against the store clerk who completed the illegal sale. Notice of the violation shall be sent to the tobacco products retail license holder. (11) Forfeitures. If a cited person fails to answer the citation or appear at a scheduled hearing as provided in subsection (9) of this section default judgments, forfeitures and delinquent forfeitures may be entered by the court in accordance with subsections (1)- (3) of section 5.622 of this code and section 5.624 of this code. Nothing in this section shall limit the city from revoking or denying any city license or permit held or desired by a person owing a forfeiture to the city. (12) Schedule of Forfeitures. A civil infraction under this section is classified for the purpose of determining forfeitures into the categories more particularly described and set forth in section 5.624 of this code. The forfeiture will be levied against the store clerk who completed the illegal sale. Notice of the violation and forfeiture shall be sent to the tobacco products retail license holder. (13) Other Relief Preserved. Nothing in this section shall be construed as limiting the right of the city to seek damages, injunctive relief, or other appropriate relief under Oregon law for the termination of conduct in contravention of the code or ordinances of the city. Section 2. Except as specifically amended herein, Chapter 5 shall continue in full force and effect. Attachment 2, Page 4 of 5 Section 3. Effective Date of Ordinance. It is hereby found and determined that the matters relating to the adoption of this Ordinance are matters affecting the public health, safety and welfare and that an emergency therefore exists, and this Ordinance shall therefore take effect immediately upon its passage by the Council and approval by the Mayor. ADOPTED by the Common Council of the City of Springfield this ______ day of _____________________, 2016, by a vote of ______ for and ______ against. APPROVED by the Mayor of the City of Springfield this ______ day of _____________________, 2016. _______________________________ Mayor ATTEST: _______________________________ City Recorder Attachment 2, Page 5 of 5 ORDINANCE No. __________ (General) AN ORDINANCE AMENDING THE SPRINGFIELD MUNICIPAL CODE SECTION 7.450 and 7.452 REGARDING TOBACCO AND INHALANT DELIVERY SYSTEM VENDING The City Council of the City of Springfield finds that: WHEREAS, the 2015 Oregon Legislature enacted House Bill 2546 (2015), which amends the existing Indoor Clean Air Act to include regulation of inhalant delivery systems such as e-cigarettes in addition to tobacco products and cigarettes; and WHEREAS, the Oregon Health Authority is in the process of developing administrative rules meant to reduce tobacco and e-cigarette sales to minors; and WHEREAS, e-cigarettes are a new product and the City seeks to develop regulations that protect public health and safety; and WHEREAS, the City of Springfield wishes to develop reasonable regulations for this product to prevent and prohibit the sale of e-cigarettes and other inhalant delivery systems to minors; and WHEREAS, the City of Springfield believes it is in the best interest of the health, safety and welfare of the citizens of the city to adopt and include such regulations in the Municipal Code; and WHEREAS, the City of Springfield has determined that the enforcement on the state level is consistent with City policy and other enforcement actions by the City. NOW, THEREFORE, based on the foregoing recitals, the Common Council of the City of Springfield ordains as follows: Section 1. Subsection 7.450 of the Springfield Municipal Code is hereby amended to read as follows: “TOBACCO AND INHALANT DELIVERY SYSTEM VENDING. 7.450 Definition. Tobacco or inhalant delivery systems vending machine means any coin-operated machine or device used to dispense cigarettes, other tobacco products, or inhalant delivery systems as defined in SMC 5.300.” Section 2. Subsection 7.452 of the Springfield Municipal Code is hereby amended to read as follows: “7.452 Licensed Required. No person shall establish, maintain, or operate a tobacco or inhalant delivery systems vending machine within the city unless a license for that use is obtained from the city. Every place or building where a tobacco or inhalant delivery systems vending machine is offered, whether for Attachment 3, Page 1 of 2 hire or not, shall be deemed a tobacco or inhalant delivery systems vending machine subject to the provisions of sections 7.450 to 7.454. Each licensee shall meet the standards as described in sections 7.000 to 7.006.” Section 3. Except as specifically amended herein, Chapter 7 shall continue in full force and effect. Section 4. Effective Date of Ordinance. It is hereby found and determined that the matters relating to the adoption of this Ordinance are matters affecting the public health, safety and welfare and that an emergency therefore exists, and this Ordinance shall therefore take effect immediately upon its passage by the Council and approval by the Mayor. ADOPTED by the Common Council of the City of Springfield this ______ day of _____________________, 2016, by a vote of ______ for and ______ against. APPROVED by the Mayor of the City of Springfield this ______ day of _____________________, 2016. _______________________________ Mayor ATTEST: _______________________________ City Recorder Attachment 3, Page 2 of 2