CHAPTER 7-09
TOBACCO PRODUCTS
SECTIONS:
7-09-001-0001 DEFINITIONS
7-09-001-0002 LICENSE REQUIRED
7-09-001-0003 MINIMUM LEGAL SALES AGE FOR TOBACCO PRODUCTS
7-09-001-0004 AGE VERIFICATION
7-09-001-0005 SELF-SERVICE DISPLAYS
7-09-001-0006 SIGNAGE
7-09-001-0007 ENFORCEMENT
7-09-001-0008 PENALTIES
7-09-001-0009 EDUCATION
7-09-001-0010 RELATED VIOLATIONS
7-09-001-0011 EXCEPTIONS AND DEFENSES
7-09-001-0012 LIBERAL CONSTRUCTION
7-09-001-0013 SEVERABILITY
7-09-001-0014 EFFECTIVE DATE
7-09-001-0001 DEFINITIONS
In this chapter, unless the context otherwise requires:
A. "Distribute" or "distribution" means to furnish, give, provide, sell, or to attempt to do so, whether gratuitously or for any type of compensation.
B. "Electronic smoking device" means any device that may be used to deliver any aerosolized or vaporized 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. "Electronic smoking device" includes any component, part, or accessory of the device, and also includes any substance intended to be aerosolized or vaporized during the use of the device, whether or not the substance contains nicotine. "Electronic smoking device" does not include drugs, devices, 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.
C. "No sales order for tobacco products" means an order from the City Manager or the City Manager’s designee to immediate cease all sales of any and all tobacco products.
D. "Person" means any natural person.
E. "Purchaser" means any person who obtains or attempts to obtain a tobacco product.
F. "Tobacco retail establishment" means any place of business where tobacco products are available for sale to the general public. The term includes but is not limited to grocery stores, tobacco product shops, kiosks, convenience stores, gasoline service stations, bars, and restaurants.
G. "Self-service display" means any display from which customers may select a tobacco product without assistance from the tobacco retailer or the tobacco retailer’s agent or employee and without a direct person-to-person transfer between the purchaser and the tobacco retailer or tobacco retailer’s agent or employee.
H. "Tobacco product" means: (1) any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including, but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus; (2) any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or (3) any component, part, or accessory of (1) or (2), whether or not any of these contain tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, and pipes. "Tobacco product" does not include drugs, devices, 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.
I. "Tobacco retailer" means any person, partnership, joint venture, society, club, trustee, trust, association, organization, or corporation who owns or operates any tobacco retail establishment. "Tobacco retailer" does not mean the non-management employees of an owner or operator of any tobacco retail establishment.
J. "Vending machine" means any mechanical, electrical or electronic device that, on insertion of money, tokens or any other form of payment, dispenses tobacco products. (Ord. 2011, Added, 12/21/1999; Ord. 2019-24, Amended, 07/02/2019)
7-09-001-0002 LICENSE REQUIRED
A. Each tobacco retailer engaging in the distribution of tobacco products, at each location in Flagstaff shall secure, and display at all times, a tobacco retail sales license from the City or its authorized agent before engaging or continuing to engage in such business. No tobacco retailer may distribute tobacco products without a valid tobacco retail sales license.
B. The fee for a tobacco retail sales license shall be set according to a separate fee schedule adopted and updated from time to time by City Council and used to cover the administrative cost for licensing administration, education and training, retail inspections, and unannounced compliance checks. The tobacco retail sales license fee should not exceed the cost of the regulatory program authorized by this chapter.
C. A tobacco retail sales license cannot be renewed if the tobacco retailer has outstanding fines pursuant to this chapter.
D. No tobacco retail sales license shall be issued or renewed to a tobacco retail sales license unless the tobacco retailer signs a form stating that the tobacco retailer has read this chapter and has provided training to all employees on the sale of tobacco products. Such training shall include information that the sale of tobacco products to persons under twenty-one (21) years of age is illegal, the types of identification legally acceptable for proof of age, and that sales to persons under twenty-one (21) years of age shall subject the tobacco retailer to penalties.
E. Any business found to be selling tobacco products without a license shall be fined and issued a no sales order for tobacco products pursuant to Section 7-09-001-0008(A). (Ord. 2019-24, Added, 07/02/2019)
7-09-001-0003 MINIMUM LEGAL SALES AGE FOR TOBACCO PRODUCTS
The distribution of any tobacco product to a person under the age of twenty-one (21) is prohibited. (Ord. 2019-24, Added, 07/02/2019)
7-09-001-0004 AGE VERIFICATION
Before distributing any tobacco product, the tobacco retailer or the tobacco retailer’s agent or employee shall verify that the purchaser is at least twenty-one (21) years of age. Each tobacco retailer or tobacco retailer’s agent or employee shall examine the purchaser’s government-issued photographic identification. No such verification is required for a person over the age of thirty (30). That a purchaser appears to be thirty (30) years of age or older shall not constitute a defense to a violation of this section. (Ord. 2019-24, Added, 07/02/2019)
7-09-001-0005 SELF-SERVICE DISPLAYS
No tobacco retailer or their employee or agent shall sell or otherwise distribute tobacco products by or from a self-service display or vending machine except in places where persons under the age of twenty-one (21) are not permitted access at any time. (Ord. 2019-24, Added, 07/02/2019)
7-09-001-0006 SIGNAGE
No tobacco retailer shall sell or permit the sale of tobacco products in the City unless a notice is posted at any location where tobacco products are available for purchase. All notices must be posted in a manner conspicuous to both employees and consumers, unobstructed from view in their entirety, and within six (6) feet of each register where tobacco products are available for purchase. The City of Flagstaff shall provide this notice, which shall state "NO PERSON UNDER THE AGE OF 21 MAY BE SOLD TOBACCO PRODUCTS, INCLUDING ELECTRONIC SMOKING DEVICES." The notice must be at least fourteen (14) inches by eleven (11) inches and the words on the notice must be legibly printed in a high contrast red color with capitalized letters at least one (1) inch high. (Ord. 2019-24, Added, 07/02/2019)
7-09-001-0007 ENFORCEMENT
The tobacco retailer shall be subject to at least two (2) unannounced compliance checks per year. The City or its authorized agent shall conduct compliance checks by engaging persons between the ages of eighteen (18) and twenty (20) to enter the tobacco retail establishment to attempt to purchase tobacco products. Unannounced follow-up compliance checks of all noncompliant tobacco retailers are required within three (3) months of any violation of this chapter. The results of all compliance checks shall be published by the City or its authorized agent at least annually and made available to the public upon request. (Ord. 2019-24, Added, 07/02/2019)
7-09-001-0008 PENALTIES
A. Tobacco Retailers. Any tobacco retailer found to have violated this chapter shall be subject to:
1. For a first violation, a fine no less than five hundred dollars ($500.00);
2. For a second violation within a thirty-six (36) month period, a fine no less than seven hundred fifty dollars ($750.00) and the tobacco retailer shall be prohibited from distributing tobacco products for a minimum of seven (7) days;
3. For a third violation within a thirty-six (36) month period, a fine no less than one thousand dollars ($1,000.00) and the tobacco retailer shall be prohibited from distributing tobacco products for a minimum of thirty (30) days;
4. For a fourth and any subsequent violations within a thirty-six (36) month period, a fine no less than one thousand dollars ($1,000.00) and the tobacco retailer shall be prohibited from distributing tobacco products for a period of three (3) years.
B. Employees. Any person found to have violated this chapter while acting as a nonmanagement agent or employee of a tobacco retailer shall be subject to noncriminal, nonmonetary penalties, including, but not limited to, education classes.
C. Other Persons. Any person twenty-one (21) years of age or older, besides a tobacco retailer or a tobacco retailer’s agent or employee, who violates this chapter is subject to an administrative fine of fifty dollars ($50.00). (Ord. 2001-23, Amended, 10/16/2001; Ord. 2011, Added, 12/21/1999; Ord. 2019-24, Ren&Amd, 07/02/2019. Formerly 7-09-001-0002)
7-09-001-0009 EDUCATION
The City or its authorized agent shall engage in a continuing public health education program to explain and clarify the purposes and requirements of this chapter to persons affected by it, and to guide tobacco retailers and their agents or employees. (Ord. 2019-24, Added, 07/02/2019)
7-09-001-0010 RELATED VIOLATIONS
A violation of any Federal, State, or local law, ordinance provision, or other regulation relating to tobacco products is also a violation of this chapter. In addition to any other penalty, a tobacco retailer who violates any provision of this chapter or any Federal, State, or local law, ordinance provision, or other regulation relating to tobacco products shall be subject to penalties stated in this chapter, including fines and a prohibition of the sale of tobacco products. (Ord. 2019-24, Added, 07/02/2019)
7-09-001-0011 EXCEPTIONS AND DEFENSES
A. The penalties in this chapter do not apply to a person younger than twenty-one (21) years old who purchases or attempts to purchase tobacco products while under the direct supervision of City staff or their authorized appointees for training, education, research, or enforcement purposes.
B. Nothing in this chapter prohibits an underage person from handling tobacco products in the course of lawful employment by a tobacco retailer.
C. It shall be an affirmative defense to a violation of this chapter for a tobacco retailer or their agent or employee to have reasonably relied on valid government issued identification demonstrating proof of age. (Ord. 2019-24, Added, 07/02/2019)
7-09-001-0012 LIBERAL CONSTRUCTION
This chapter shall be liberally construed so as to further its purposes. (Ord. 2019-24, Added, 07/02/2019)
7-09-001-0013 SEVERABILITY
If any section, subsection, sentence, clause, phrase, or portion of this chapter or any part of the Code adopted herein by reference is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions thereof. (Ord. 2011, Added, 12/21/1999; Ord. 2019-24, Ren&Amd, 07/02/2019. Formerly 7-09-001-0003)
7-09-001-0014 EFFECTIVE DATE
The provisions of this chapter shall be enforceable sixty (60) days from the date the ordinance codified in this chapter becomes effective. (Ord. 2011, Added, 12/21/1999; Ord. 2019-24, Ren&Amd, 07/02/2019. Formerly 7-09-001-0004)