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HomeMy WebLinkAboutOrdinances - MC-19-1198 - 07/15/2019 - Chapter 11 - Smoking, and Chapter 14 - OffensesCITY OF MCHENRY MCHENRY COUNTY STATE OF ILLINOIS ORDINANCE NUMBER MC-19-1198 An Ordinance Repealing and Replacing Chapter 11 Health and Sanitation, Article V. No Smoking and Chapter 14 Offenses Miscellaneous, Article I. In General, Sections 14-37- 14-44 of the City of McHenry's Municipal Code Adopted by the Mayor and City Council Of the City of McHenry McHenry County State of Illinois July 15, 2019 Published in pamphlet form by authority of the Mayor and City Council of the City of McHenry, McHenry County, Illinois this 1611 day of July 2019. ORDINANCE NO. MC-19-1198 An Ordinance Repealing and Replacing Chapter 11 Health and Sanitation, Article Y. No Smoking and Chapter 14 Offenses Miscellaneous, Article L In General, Sections 14-37-14-44 of the City of McHenry's Municipal Code WHEREAS, the City of McHenry, McHenry County, Illinois, is a home rule municipality as contemplated under Article VII, Section 6, of the Constitution of the State of Illinois, and the passage of this Ordinance constitutes an exercise of the City's home rule powers and functions as granted in the Constitution of the State of Illinois; NOW, THEREFORE, BE IT ORDAINED by the CITY COUNCIL of the CITY OF McHENRY, McHenry County, Illinois, as follows: SECTION 1: Chapter 11 Health and Sanitation, Article V. No Smoking, shall be fully repealed and replaced in its entirety and restated as referenced in Exhibit A attached hereto, and SECTION 2: Chapter 14 Offenses, Article I. In General, Sections 14-37 through 14-44, shall be fully repealed and replaced in its entirety and restated as referenced in Exhibit B attached hereto. SECTION 3: If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate or nullify the remainder thereof, which remainder shall remain and continue in full force and effect. SECTION 4: All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. SECTION 5: This Ordinance shall be in full force and effect upon its passage, approval and publication in pamphlet form (which publication is hereby authorized) as provided by law. Passed and approved this 15th day of July, 2019. Alderwoman Baehne Alderman Devine Alderman Glab Alderman Mihevc Alderwoman Miller Alderman Santi Alderman Schaefer Wayne 661 Oayor Ayes Nays k k k X x Absent Abstain Monte Johnson, lKeputy Clerk Chapter 11 No Smoking / Chapter 14 Tobacco, Page Exhibit A CHAPTER 11 ARTICLE V. NO SMOKING Sec. 11-130. Smoke Free McHenry Act. The City of McHenry concurs with the findings of the Illinois General Assembly in the Smoke Free Illinois Act (410 ILCS 82/1 et seq.) ("Act") and adopts the Act as the Smoke Free McHenry Act. Enforcement of violations shall be through citations or complaints filed in the Twenty - Second Judicial Circuit Court. Exhibit B CHAPTER 14 OFFENSES - MISCELLANEOUS ARTICLE I. IN GENERAL Sec. 14-37 Bidi Cigarettes, Smoking Herbs, Tobacco Accessories and Tobacco Products; Definitions. (MC-10-1015; MC-14-1085) Terms used in Sections 14-38 through 14-45 are defined as follows: Alternative Nicotine Product: Means a product or device not consisting of or containing tobacco that provides for the ingestion into the body of nicotine, whether by chewing, smoking, absorbing, dissolving, inhaling, snorting, sniffing, or by any other means. "Alternative nicotine product" does not include: cigarettes as defined in Section I of the Cigarette Tax Act (35 ILCS 13011) and tobacco products as defined in Section I of the Cigarette Tax Act (35 ILCS 13011) and tobacco products as defined in Section 10-5 of the Tobacco Products Tax Act of 1995 (35 ILCS 143110-5); tobacco product and electronic cigarette as defined in this Section; or any product approved by the United States Food and Drug Administration for sale as a tobacco cessation product; as a tobacco dependence product, or for other medical purposes, and is being marketed and sold solely for that approved purpose. Bidi cigarette: a product that contains tobacco that is wrapped in temburni or tendu leaf or that is wrapped in any other material identified by rules of the Illinois Department of Public Health that is similar in appearance or characteristics to the temburni or tendu leaf. Electronic Cigarette or E-Cigarette: Any device that employs a battery or other mechanism to heat a solution or substance to produce a vapor or aerosol intended for inhalation; any cartridge or container of a solution or substance intended to be used with or in the device or to refill the device; or any solution or substance, whether or not it contains nicotine intended for use in the device. "Electronic cigarette" includes, but is not limited to, any electronic nicotine delivery system, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, vape pen, or similar product or device, and any components or parts that can be used to build the product or device. "Electronic cigarette " does not include: cigarettes as defined in Section 1 of the Cigarette Tax Act (35 ILCS 13011) and tobacco products as defined in Section 10-5 of the Tobacco Products Tax Act of 1995(35 ILCS 143110-5) ; tobacco products and alternative nicotine product as defined in this Section; any product approved by the United States Food and Drug Administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and is being marketed and sold solely for that approved purpose; any asthma inhaler prescribed by a physician for that condition and is being marketed and sold solely for that approved purpose; or any therapeutic product approved for use under the Compassionate Use of Medical Cannabis Pilot Program Act 410 ILCS 13011 et seq.). Liquid Nicotine: Means any liquid product composed either in whole or part of nicotine, propylene glycol and/or other similar substances and manufactured for use with an e-cigarette to be converted into gas for inhaling. Nicotine: Means any form of the chemical nicotine, including any salt or complex, regardless of whether the chemical is naturally or synthetically derived. Exhibit B Smoking herbs: all substances of plant origin and their derivatives, including but not limited to broom, calea, California poppy, damiana, hops, ginseng, lobelia, jimson weed and other members of the Datura genus, passion flower and wild lettuce, which are processed or sold primarily for use as smoking materials. Smokeless tobacco: any finely cut, ground, powdered or leaf tobacco that is intended to be placed in the oral cavity; any tobacco product that is suitable for dipping or chewing. Tobacco accessories: cigarette papers, pipes, holders of smoking materials of all types, cigarette rolling machines and other items, designed primarily for the smoking or ingestion of tobacco products or of substances made illegal under any statute or of substances whose sale, gift, barter or exchange is unlawful. Tobacco products: "Tobacco product" means any product containing or made from tobacco that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, snus, and any other smokeless tobacco product which contains tobacco that is finely cut, ground, powdered, or leaf and intended to be placed in the oral cavity. "Tobacco product" includes any component, part, or accessory of a tobacco product, whether or not sold separately. "Tobacco product" does not include: an electronic cigarette and alternative nicotine product as defined in this Section; or any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and is being marketed and sold solely for that approved purpose. Sec. 14-38 Tobacco, Electronic Cigarette, Alternative Nicotine Product or Liquid Nicotine Dealer's License. (1)Mayor designated Tobacco Control Commissioner; assistants. The Mayor of the City shall act a Local Tobacco Control Commissioner of the City and, in the event of a conflict preventing the Mayor from so acting, the designated Tobacco Control Commissioner is the City Administrator. (2)License required. It shall be unlawful to sell or offer for sale at retail, to give away or keep with the intention of selling at retail, giving away or delivering tobacco products, electronic cigarettes or their components, alternative nicotine products or liquid nicotine within the City without having first obtained a tobacco dealer's license. Such license shall be in addition to any other license required by the Municipal Code of the City of McHenry. (3)Applications for licenses. Applications for licenses required by this Chapter shall be verified in writing and on a form provided by the City. Such application shall be completed in full and be true and accurate by the person signing the application. The approval and authority to issue tobacco dealer licenses is the responsibility of the Tobacco Control Commissioner or their designee. Exhibit B (4) License Period; Fee. The license period shall be from May 1 to the following April 30. The annual license fee shall be $250, payable to the City on or before May 1 of each year. (5) Personal Nature of License. A license is a purely personal privilege, good for the license period, unless revoked. No such license shall be transferrable. (6) Responsibility for Agents and Employees. Any act of omission constituting a violation of any provision of this Section by any officer, director, manager or other agent or employee of any licensee shall be deemed and held to be the act of such licensee and such licensee shall be punishable in the same manner as if such act or omission has been done or omitted by the licensee personally. Sec. 14-39 Purchase and Use of Tobacco Products Prohibited. (1) No person under 21 years of age shall purchase any tobacco product in any of its forms, electronic cigarettes or their components, alternative nicotine products or liquid nicotine. No person shall sell, purchase for, distribute samples of or furnish any tobacco product in any of its forms, an electronic cigarette or their components, alternative nicotine products or liquid nicotine, to any person under 21 years of age. Tobacco products, electronic cigarettes, alternative nicotine products and liquid nicotine may not be sold through a vending machine. It is not a violation of this Section for a person under 21 years of age to purchase a tobacco product, electronic cigarettes or their components, alternative nicotine products or liquid nicotine if the person under the age of 21 purchases the tobacco product, electronic cigarettes or their components, alternative nicotine products or liquid nicotine in any of its forms from a retail seller of tobacco products, electronic cigarettes or their components, alternative nicotine products or liquid nicotine or an employee of the retailer seller pursuant to a plan or action to investigate, patrol or otherwise conduct a "sting operation " or enforcement action against a retail seller of tobacco products, electronic cigarettes or their components, alternative nicotine products or liquid nicotine or a person employed by the retail seller of tobacco products, electronic cigarettes or their components, alternative nicotine products or liquid nicotine or on any premises authorized to sell tobacco products, electronic cigarettes or their components, alternative nicotine products or liquid nicotine are being sold or given to persons under 21 years of age if the "sting operation " or enforcement action is approved by, conducted by, or conducted on behalf of the Department of State Police, the county sheriff, a municipal police department, the Department of Revenue, the Department of Public Health, or a local health department. (2) Penalty: Any person violating any provision of this Section 14-39 is guilty of a petty offense and shall be fined $250 if paid prior to date of hearing. If paid on or after the date of hearing the fine shall be $250 plus hearing costs of $150 associated with the City's cost of prosecution including attorney's fees, for a total of $400. Sec. 14-40 Possession of Tobacco Products, Electronic Cigarettes and their components, Alternative Nicotine Products or Liquid Nicotine. (1) No person under 18 years of age shall possess any tobacco product in any of its forms, any electronic cigarettes or their components, alternative nicotine products or liquid nicotine. It is not a violation of this Section for a person under 18 years of age to possess a tobacco product, electronic cigarettes or their components, alternative nicotine products or liquid nicotine if the Exhibit B person under the age of 18 possesses or is given the tobacco product, electronic cigarettes or their components, alternative nicotine products or liquid nicotine in any of its forms from a retail seller of tobacco products, electronic cigarettes or their components, alternative nicotine products or liquid nicotine or an employee of the retailer seller pursuant to a plan or action to investigate, patrol or otherwise conduct a "sting operation " or enforcement action against a retail seller of tobacco products, electronic cigarettes or their components, alternative nicotine products or liquid nicotine or a person employed by the retail seller of tobacco products, electronic cigarettes or their components, alternative nicotine products or liquid nicotine or on any premises authorized to sell tobacco products, electronic cigarettes or their components, alternative nicotine products or liquid nicotine are being sold or given to persons under 18 years of age if the "sting operation " or enforcement action is approved by, conducted by, or conducted on behalf of the Department of State Police, the county sheriff, a municipal police department, the Department of Revenue, the Department of Public Health, or a local health department. (2) Penalty: If a minor violates this Section 14-40 the minor is guilty of a petty offense and shall be fined $150 if paid prior to the date of hearing. If paid on or after the date of hearing the fine shall be $150 plus hearing costs of $150 associated with the City's cost of prosecution including attorney's fees, for a total of $300. Sec. 14-41 Tobacco Accessories, Smoking Herbs, Tobacco Products, Electronic Cigarettes, Alternative Nicotine Products or Liquid Nicotine. (1) Sale to Minors Prohibited: No person shall knowingly sell, barter, exchange, deliver or give away or cause or permit or procure to be sold, bartered, exchanged, delivered or given away tobacco accessories, or smoking herbs, tobacco products, electronic cigarettes or components, alternative nicotine products or liquid nicotine to any person under 21 years of age. (2) Sale of Bidi Cigarettes: No person shall knowingly sell, barter, exchange, deliver or give away a bidi cigarette to another person, nor shall a person cause or permit or procure a bidi cigarette to be sold, bartered, exchanged, delivered or given away to another person. (3) Sale of Cigarette Paper: No person shall knowingly offer, sell, barter, exchange, deliver or give away cigarette paper or cause, permit or procure cigarette paper to be sold, offered, bartered, exchanged, delivered or given away except from premises or an establishment where other tobacco products are sold. (4) Use of Identification Cards: No person in the furtherance or facilitation of obtaining tobacco accessories, smoking herbs, tobacco products, electronic cigarettes, alternative nicotine products and liquid nicotine shall display or use a false or forged identification card or transfer, alter or deface an identification card. (5) Warning to Minors: Any person, firm, partnership, company or corporation operating a place of business where tobacco accessories, smoking herbs, tobacco products, electronic cigarettes, alternative nicotine products or liquid nicotine are sold or offered for sale shall post in a conspicuous place upon the premises a sign which there shall be imprinted the following statement: Exhibit B SALE OF TOBACCO ACCESSORIES, SMOKING HERBS, ELECTRONIC CIGARETTES, ALTERNATIVE NICOTINE PRODUCTS AND LIQUID NICOTINE TO PERSONS UNDER 21 YEARS OF AGE OR THE MISREPRESENTATION OF AGE TO PROCURE SUCH A SALE IS PROHIBITED BY LAW. The sign shall be printed on a white card in red letters at least one-half inch in height. Sec. 14-42 Penalty (1) Any person, firm or corporation violating any provision of Section 14-40 of this Chapter shall be subject to license suspension or revocation, alteration of hours on a temporary or permanent basis, and fines of not less than $300.00 nor more than $1,000.00 for each offense committed on each day during, or on which, a violation occurs or continues, plus reimbursement of legal fees incurred by the City in the prosecution of violations of this Chapter against the licensee. Sec. 14-43 Availability. No person, firm or corporation shall sell or distribute individual cigarettes or samples of cigarettes except in its original packaging, and no package shall contain less than 20 cigarettes. Tobacco products, electronic cigarettes and their components, alternative nicotine products and liquid nicotine shall be sold only in direct, face-to-face exchange. Self- service displays or vending machines shall not be permitted. Sec. 14-44. Enforcement of School District Personnel. The following appointed officials of any public school shall have the authority to sign all complaints and charge all violators of this Section that take place on school property: principal, assistant principal and dean of students. CERTIFICATION I, Monte Johnson, do hereby certify that I am the duly appointed, acting and qualified Deputy Clerk of the City of McHenry, McHenry County, Illinois, and that as such Clerk, I am the keeper of the records and minutes and proceedings of the Mayor and Council Members of said City of McHenry. I do hereby further certify that at a regular meeting of the Mayor and Aldermen of the City of McHenry, held on the ,15th day of July, 2019, the foregoing Ordinance entitled An Ordinance Repealing and Replacing Chapter 11 Health and Sanitation, Article Y. No Smoking and Chapter 14 Offenses Miscellaneous, Article L In General, Sections 14-37-14-44 of the City of McHenry's Municipal Code, was duly passed by the City Council of the City of McHenry. The pamphlet form of Ordinance No. MC-19-1198, including the Ordinance and a cover sheet thereof, was prepared, and a copy of such Ordinance was posted in the City Hall, commencing on the 16th day of July 2019, and will continue for at least 10 days thereafter. Copies of such Ordinance are also available for public inspection upon request in the office of the City Clerk. I do further certify that the original, of which the attached is a true and correct copy, is entrusted to me as the Clerk of said City for safekeeping, and that I am the lawful custodian and keeper of the same. GIVEN under my hand and seal this 16th day of July 2019. Monte Johnson, Ereupty Clerk City of McHenry, McHenry County, Illinois (SEAL)