Chapter 5.35
SALE OF TOBACCO PRODUCTS

Sections:

5.35.010    Findings and purposes.

5.35.020    Definitions.

5.35.030    Regulation of manner of sale of tobacco products.

5.35.040    Enforcement.

5.35.050    Violations and penalties.

5.35.060    Other applicable laws.

5.35.070    Statutory severability.

5.35.080    Voluntary compliance measures.

5.35.090    Suspension, revocation or denial of tobacco business license.

5.35.010 Findings and purposes.

(1) Substantial scientific evidence exists that the use of tobacco products causes cancer, heart disease, and various other medical diseases. The Surgeon General of the United States has found that tobacco-caused diseases are the leading cause of premature, preventable death and disability in the United States;

(2) The National Center for Disease Control has found that at least 434,000 Americans die each year from tobacco-caused diseases. The Surgeon General of the United States and the United States Department of Health and Human Services have found that a majority of those Americans who die of tobacco-caused diseases became addicted to nicotine in tobacco products as adolescents before the age of legal consent;

(3) The National Institute on Drug Abuse has concluded that the nicotine in tobacco products is a powerful addictive drug and identifies nicotine addiction as the most widespread example of drug dependence in the United States;

(4) The Surgeon General of the United States has found that nicotine in tobacco products is as addictive as cocaine and heroin; and

(5) The National Institute on Drug Abuse has found that tobacco use by adolescents precedes and is predictive of adolescent illicit drug use.

(6) The Riverton City council finds and declares it in the public interest to:

(a) Prohibit self-service sales and self-service displays, racks, and shelves of tobacco products.

(b) Require the posting of warning signs at the point of purchase stating the legal age of sale and that identification is required to purchase tobacco.

(c) Prohibit vending machine sales of tobacco products. [Ord. 18-33 § 1 (Exh. A). Code 1997 § 9-4-91.]

5.35.020 Definitions.

“Employee” means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a nonprofit entity.

“Employer” means any person, partnership, corporation, including a municipal corporation, or nonprofit entity, who employs the services of one or more individual persons.

“Minor” shall mean any individual who is less than 19 years old.

“Person” shall mean any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

“Place of business” means any and all places such as shops, stores, factories, public garages, offices, theaters, recreation and dance halls, poolrooms, cafes, cafeterias, cabarets, restaurants, hotels, lodging houses, streetcars, buses, interurban and railway passenger coaches and waiting rooms.

“Retailer” means a person who owns or is responsible for supervising the day-to-day operation of a business where tobacco products are displayed or otherwise offered for sale.

“Self-service merchandising” means open display of tobacco products and tobacco promotional products that the public has access to without the intervention of an employee.

“Tobacco business” means any sole proprietorship, joint venture, corporation or other business entity formed for profit-making purposes, including retail establishments where tobacco or tobacco-related goods or services are sold.

“Tobacco product” means any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, snuff, or any other form of tobacco which may be utilized for smoking, chewing, inhalation or other manner of ingesting tobacco or tobacco-related products.

“Tobacco promotional products” means baseball caps, tee-shirts, gym bags, coffee mugs, sunglasses, jackets and related items which have tobacco advertising logos, images, characters, messages and themes printed on them.

“Tobacco retailer” shall mean any person or governmental entity that operates a store, stand, booth, concession, or other place at which sales of tobacco products are made to purchasers for consumption or use.

“Tobacco vending machine” means any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin or paper currency, or other things representative of value, which dispenses or releases a tobacco product.

“Vendor-assisted” means only a store employee has access to the tobacco product and tobacco promotional product, and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased. [Ord. 18-33 § 1 (Exh. A); amended during 2011 recodification. Code 1997 § 9-4-92.]

5.35.030 Regulation of manner of sale of tobacco products.

(1) Any person, business, tobacco retailer or other establishment subject to this chapter shall post plainly visible signs at the point of purchase of tobacco products which state:

THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER NINETEEN YEARS OF AGE IS PROHIBITED BY LAW. PHOTO ID IS REQUIRED TO PURCHASE TOBACCO.

The letters of these signs shall be at least one-fourth inch high.

(2) No person, business, tobacco retailer, or owner, manager or operator of any establishment subject to this chapter shall sell, offer to sell or permit to be sold any tobacco product to an individual without requesting and examining identification establishing the purchaser’s age as 19 years or greater unless the seller has some reasonable basis for determining the buyer’s age.

(3) It shall be unlawful for any person, business, or tobacco retailer to sell, permit to be sold, offer for sale or display for sale any tobacco products or tobacco promotional product by means of self-service merchandising or by means other than vendor-assisted sales.

(4) No person, business, or tobacco retailer shall locate, install, keep, maintain or use or permit the location, installation, keeping, maintenance or use of his/her or its premises for any vending machine for the purposes of selling or distributing any tobacco product. [Ord. 18-33 § 1 (Exh. A). Code 1997 § 9-4-93.]

5.35.040 Enforcement.

(1) Enforcement of this chapter shall be the responsibility of the county sheriff or his or her designee.

(2) Any citizen who desires to register a complaint under this chapter may initiate a complaint with the sheriff’s department. The county sheriff shall notify any establishment subject to this chapter of all citizens’ complaints under this chapter regarding apparent violation of this chapter by said person, tobacco retailer, or any owner, manager or operator of any establishment subject to this chapter. [Ord. 18-33 § 1 (Exh. A). Code 1997 § 9-4-94.]

5.35.050 Violations and penalties.

(1) It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to this chapter to fail to comply with any of its provisions.

(2) Any person, business, tobacco retailer, or owner, manager or operator of any establishment subject to this chapter shall have the following responsibilities:

(a) To post plainly visible signs at point of purchase stating that sale of tobacco products to persons under the age of 19 is prohibited by law and photo identification is required to purchase tobacco;

(b) To request identification from any person buying tobacco products which shows the purchaser is of legal age unless the seller has some reasonable basis for determining the buyer’s age;

(c) To eliminate self-service merchandising of tobacco products and tobacco promotional products;

(d) To sell tobacco products and tobacco promotional products only by means of vendor-assisted sales; and

(e) To eliminate cigarette vending machines.

(3) Any person, business, tobacco retailer, or owner, manager or operator of any establishment subject to this chapter who violates any provision of this chapter shall be deemed guilty of a class B misdemeanor. [Ord. 18-33 § 1 (Exh. A); amended during 2011 recodification. Code 1997 § 9-4-95.]

5.35.060 Other applicable laws.

This chapter shall not be interpreted or construed to permit tobacco vending machines and distribution of tobacco product samples where they are otherwise restricted by other applicable laws. [Ord. 18-33 § 1 (Exh. A). Code 1997 § 9-4-96.]

5.35.070 Statutory severability.

If any provision, clause, sentence or paragraph of this chapter or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable. [Ord. 18-33 § 1 (Exh. A). Code 1997 § 9-4-97.]

5.35.080 Voluntary compliance measures.

In order to increase voluntary compliance with this chapter, Riverton City or its designee shall conduct informational activities to notify and educate tobacco retailers and the public of this chapter. [Ord. 18-33 § 1 (Exh. A). Code 1997 § 9-4-98.]

5.35.090 Suspension, revocation or denial of tobacco business license.

(1) Any pending tobacco business license application submitted to Riverton City under the provisions of Riverton City Code shall be denied if:

(a) The licensee-applicant fails to tender a complete application or comply with the conditions and requirements of Riverton City Code, or state law, by the time the application is reviewed by the city.

(b) The licensee-applicant has been convicted of:

(i) A felony within the last seven years;

(ii) A class A misdemeanor or a crime involving controlled substances within the last five years; or

(iii) A class B misdemeanor within the last three years, related to the sale of a tobacco or alcohol product.

(2) Any tobacco business license issued pursuant to the provisions of Riverton City Code may be suspended or revoked, and any pending application shall be denied, by the city because of:

(a) The failure of the licensee or applicant to comply with conditions and requirements of this code or any ordinance of the city;

(b) The licensee has been convicted of:

(i) A felony within the last seven years;

(ii) A class A misdemeanor or a crime involving controlled substances within the last five years;

(iii) A class B misdemeanor within the last three years, related to the sale of a tobacco or alcohol product; or

(iv) If a licensee violates the regulations restricting the sale and distribution of cigarettes and smokeless tobacco to protect children and adolescents issued by the United States Food and Drug Administration, 21 C.F.R. Part 1140.

(c) Unlawful activities conducted or permitted to be conducted at the business location, whether by intentional conduct, reckless conduct, or negligence on the part of a licensee(s), the licensee’s agents, employees, volunteers, or invitees.

(d) Any failure of the licensee or applicant to comply as described under subsection (2)(a) of this section, or any unlawful activities conducted or permitted to be conducted at a business location as described under subsections (2)(b) and (c) of this section, shall be deemed a violation of this subsection (2) for the purpose of interpreting subsections (3) through (6) of this section.

(3) Any violation of subsection (2) of this section which occurs at a location other than the business location of a licensee, but arises during the course of a business providing delivery services, shall be attributed to the business location from which the delivery services originated.

(4) Suspension or revocation in accordance with subsection (2) of this section shall be conducted by the city in accordance with the following guidelines:

(a) Upon the first violation at a business location, a penalty of not more than $300.00 shall be assessed and the business shall be required to post security personnel at all public entrances to the business to check customer identification to ensure that the customer is over the age of 21 for a period of 12 months;

(b) Upon the second violation at the same location within 12 months of a prior violation, a penalty of not more than $750.00 and a suspension of the business license for a period of 30 days;

(c) Upon the third violation at the same location within 12 months of two prior violations, a penalty of not more than $1,000 and a 90-day suspension of the business license; and

(d) Upon the fourth violation at the same location within 12 months of three prior violations, a penalty of not more than $1,000 and revocation of the business license.

(e) The administrative penalties described in this subsection can be increased if the violation is egregious and may be reduced if the licensee provides documentation which proves the licensee has taken appropriate steps to ameliorate the conditions that led to the violation including, but not limited to, requiring licensees, employees, agents, and volunteers of the affected business to successfully complete a training program to maintain compliance with Utah law, where applicable, or otherwise satisfactory to the city. Said training must directly address the event(s) which gave rise to any and all violation(s) of subsection (2) of this section. In addition, a hearing officer may take into consideration the size of the business under review, and the extent the violation relates to the overall sales generated by said business.

(5) Prior to any administrative remedies being imposed upon any applicant/licensee for violations of this chapter, the city shall give the applicant/licensee written notice of the alleged violations and the potential penalties for such violations.

(a) If the applicant licensee fails to respond to the notice, the applicant/licensee’s failure to respond shall be construed as an admission of guilt and the administrative penalties contained in the notice shall be imposed by the city 30 days after said written notice.

(b) The applicant shall have 20 days after the date the notice was sent to challenge the allegations contained in the notice of violation by giving written notice to the Riverton City recorder of the applicant’s challenge and desire for an administrative hearing on the matter.

(c) Upon receipt of the notice of challenge and request for an administrative hearing filed within the noted time frame, the city shall schedule an administrative hearing before the Riverton City administrative hearing officer.

(d) At that hearing the city shall have the burden of proof to show by substantial evidence that the applicant/licensee violated the provisions of this chapter of the city code.

(e) Substantial evidence is defined as such relevant evidence as a reasonable mind may accept as adequate to support a conclusion.

(f) The applicant/licensee may be represented by himself or an attorney at the administrative hearing.

(g) The administrative hearing officer shall render a written decision setting forth the facts and conclusions relied upon by the hearing officer within 20 calendar days after the hearing. If the administrative hearing officer determines that the city has met its burden of proof, the administrative hearing officer shall require the imposition of the penalties set forth in the notice of violation within 30 days of the issuance of the written decision.

(h) The applicant/licensee shall have the right to contest the decision of the administrative hearing officer by filing a written notice of appeal to the city recorder.

(i) After receiving written notice of an appeal the city recorder shall schedule a review of decision rendered by the hearing officer by the city manager. The scope of review on appeal shall be limited as to whether:

(i) The hearing officer failed to decide all of the issues requiring resolution;

(ii) The city and/or the hearing officer has engaged in an unlawful procedure or decision-making process by failing to provide the applicant/licensee with due process, or has failed to follow prescribed procedure;

(iii) The hearing officer was subject to disqualification or the necessity of recusal;

(iv) The hearing officer’s decision or action was based upon a determination of fact, made or implied by the hearing officer, that is not supported by substantial evidence when viewed in light of the whole record before the city manager;

(v) The hearing officer’s decision or action is contrary to the city’s prior practice, unless the hearing officer justifies the inconsistency by giving facts and reasons that demonstrate a fair and rational basis for the inconsistency; or is otherwise arbitrary or capricious.

(j) The city manager shall conduct their review within 30 calendar days from the filing of the appeal of the hearing officer’s decision or action.

(k) The city manager shall determine whether to support or overturn the decision of the administrative hearing officer and render a written decision within 20 days of their review. If the city manager upholds the decision of the administrative hearing officer, it shall order that the penalties be imposed within 30 days.

(l) The decision of the city manager shall be final.

(6) No license shall be issued or transferred to:

(a) A person whose license issued under this chapter has been revoked or a member of said person’s immediate or extended family;

(b) An individual who was a member of a partnership or association which was a licensee under this chapter and whose license has been revoked; an individual who was an officer, member of the governing board or one of the 10 principal stockholders of a corporation which was a licensee under this chapter and whose license has been revoked;

(c) A partnership or association, one of whose members was a licensee under this chapter and whose license was revoked;

(d) A corporation, one of whose principal stockholders was a licensee under this chapter and whose license has been revoked; an association or partnership, one of whose members was a member of a partnership or association licensed under the provisions of this chapter and whose license has been revoked;

(e) A partnership or association, one of whose members was an officer, a member of the governing board or one of the 10 principal stockholders of a corporation which was a licensee under this chapter and whose license has been revoked;

(f) A corporation, one of whose officers, members of the governing board, or 10 principal stockholders was a member of a partnership or association licensed under this chapter and whose license has been revoked;

(g) A corporation, one of whose officers, members of the governing board or 10 principal stockholders was an officer, member of the governing board, or one of the 10 principal stockholders of a corporation which was a licensee under this chapter and whose license has been revoked. [Ord. 18-33 § 1 (Exh. A).]