HomeMy WebLinkAboutOrdinances - MC-14-1085 - 03/17/2014 - E Cigarettes ORDINANCE NO. MC-14-1085
An Ordinance Amending Article], Sections 14-37, 14-38, 14-39, 14-40, and 14-42 of the
McHenry Municipal Code Regarding Electronic Cigarettes and Their Components
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; and
WHEREAS, Article 1, Chapter 14, Sections 37, 38, 39, 40, and 42 of the current
Municipal Code provides for the regulation of the sale of tobacco products to minors and the
possession of such products by minors; and
WHEREAS, it is desirous of the Corporate Authorities to amend Article 1, Chapter 14,
Sections 37, 38, 39, 40 and 42, to update the Code to address the distribution of alternative
nicotine products, as defined by Illinois State Statute 720 ILCS 675/1.5, and the possession
thereof by minors;
NOW, THEREFORE, BE IT ORDAINED by the Mayor and Aldermen of the City of
McHenry, McHenry County, Illinois, as follows:
SECTION 1: Sections 14-37, 14-38, 14-39, 14-40, and 14-42 of the McHenry Municipal
Code shall be repealed and replaced as follows:
Sec. 14-37 Bidi Cigarettes, Smoking Herbs, Tobacco Accessories and Tobacco Products;
Definitions.
(MC-10-1015)
Terms used in Sections 14-38 through 14-44 are defined as follows:
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.
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: cigars, cigarettes, smokeless tobacco or tobacco.
Electronic Cigarette or E-Cigarette: An alternative nicotine product. An electronic
device usually composed of a mouthpiece, a heating element or atomizer, a battery, and
electronic circuits that provides a gas derived from liquid nicotine and/or other substances
which is inhaled by a user simulating smoking. The term includes such devices,
regardless of the details of the product appearance or marketed name, generally
manufactured to resemble cigarette, cigars,pipes, or other smoking devices.
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.
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.
Sec. 14-38 Purchase and Use of Tobacco Products Prohibited.
(1)No person under 18 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 18 years of age. Tobacco products, electronic cigarettes, alternative nicotine
products and liquid nicotine may be sold through a vending machine only when such tobacco
products, electronic cigarettes, alternative nicotine products or liquid nicotine are not sold along
with non-tobacco, non-electronic cigarette or non-liquid nicotine component products in the
vending machine and only in the following locations:
a)Factories,businesses, offices,private clubs and other places not open to the general
public.
b)Places to which persons under 18 years of age are not permitted access.
c) Places where alcoholic beverages are sold and consumed on the premises.
d) Places where the vending machine is under the direct supervision(which means that
the owner or employee has an unimpeded line of sight to the vending machine) of the
owner of the establishment or an employee over 18 years of age. The sale of tobacco
products, electronic cigarettes, alternative nicotine products or liquid nicotine from a
vending machine under direct supervision of the owner or an employee of the
establishment is considered a sale of the products by that person.
e) Places where the vending machine can only be operated by the owner or an employee
over age 18 either directly or through a remote control device if the device is inaccessible
to all customers.
(2) Penalty: Any person violating any provision of this Section 14-38 is guilty of a petty offense
and for the first offense shall be fined $200, $400 for the second offense in a 12-month period,
and $600 for the third or any subsequent offense in a 12-month period and be responsible for the
City's cost of prosecution, including reasonable attorney fees.
Sec. 14-39. 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.
(2)Penalty: If a minor violates this Section 14-39 the minor shall be guilty of a petty offense and
may be fined $50 and/or sentenced to 15 hours of community service for the first offense. If a
second violation occurs within a 12-month period of the first offense, the fine shall be$75 and/or
25 hours of community service. For a third or subsequent violation that occurs within a 12-month
period of the first offense, the fine shall be$100 and/or 30 hours of community service. If there
is a second or subsequent violation not within a 12-month time period after the first violation, a
fine of$25 or 15 hours of community service shall be assessed. For any violation the violator
shall be responsible for the City's cost of prosecution, including reasonable attorney fees.
Sec. 14-40 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 18 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) Sale of Cigarette Paper from Vending Machines: 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 by use of a vending or coin-
operated machine or device. For purposes of this Section(E)(4), cigarette paper shall not include
any paper that is incorporated into a product to which a tax stamp must be affixed under the
Cigarette Tax Act(35 ILCS 130/1 et seq.) or the Cigarette Use Tax Act(35 ILCS 135/1 et seq).
(5) 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.
(6)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:
SALE OF TOBACCO ACCESSORIES, SMOKING HERBS, ELECTRONIC
CIGARETTES,ALTERNATIVE NICOTINE PRODUCTS AND LIQUID NICOTINE TO
PERSONS UNDER 18 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. 14-41 Penalty
(1) Except for Section 14-40(2), any person who knowingly violates or shall knowingly cause
the violation of any provision of Section 14-40 shall be guilty of a Class C misdemeanor and
shall be fined pursuant to 730 ILCS 5. The violator shall be responsible for the City's cost of
prosecution, including reasonable attorney fees.
(2)Any person who knowingly violates or shall knowingly cause the violation of Section 14-
40(2) shall be guilty of a petty offense for which the offender shall be fined as follows: for the
first offense, not less than$100 or more than$500, for a second offense within a 2-year period of
the first offense, not less than$250 or more than$600, and for a third or subsequent offense
within a 2-year period of the first offense, not less than $500 or more than $1,000. In addition,
the violator shall be responsible for the City's cost of prosecution, including reasonable attorney
fees.
(3) These fines are in addition to the administrative provisions for suspension, revocation or
forfeiture of a license issued pursuant to Chapter 2.25 of the Municipal Code of the City of
McHenry. Payment of such fine shall not constitute an admission of guilt or innocence for the
purposes of such administrative proceedings for suspension, revocation or forfeiture.
Sec. 14-42 Tobacco, Electronic Cigarette,Alternative Nicotine Product or Liquid Nicotine
Dealer's License.
(1)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.
Applications for a license shall be made in writing to the City. Such application shall contain the
name of the applicant, the address at which such sales are to be made, and in the case of cigarette
vending machines, the number of machines for which licenses are to be issued and are located
within the building or structure.
(2) License Period; Fee. The license period shall be from May 1 to the following April 30. The
annual license fee shall be$25,payable to the City on or before May 1 of each year.
(3) Personal Nature of License.A license is a purely personal privilege, good for the license
period, unless revoked. No such license shall be transferrable.
(4) 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.
(5)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. Except as provided in Section 14-42(6), 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 shall not be permitted except in areas where access
by persons under the age of 18 is prohibited.
(6) Vending Machines; Locking Devices. It shall be unlawful for any licensee to sell or offer
for sale, give away, deliver or to keep with the intention of selling, giving away, or delivering
tobacco products, electronic cigarettes and their components, alternative nicotine products or
liquid nicotine by use of vending machine unless such vending machine is equipped with a
manual, electric or electronic locking device controlled by the licensee that prevents its operation
by persons under the age of 18 years.
Sec. 14-43. 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.
Sec. 14-44 Reserved.
SECTION 2: 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 3: All ordinances or parts of ordinances in conflict herewith are hereby
repealed to the extent of such conflict.
SECTION 4: 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.
Ayes: Santi, Glab, Schaefer, Blake, Wimmer, Peterson, Condon
Nays: None
Absent: None
Abstain: None
Passed and approved this 171h day of March, 2014.
or Susan E. Low
ATTEST: AU1Ce
City Cl k Jan i C. ,ones