HomeMy WebLinkAbout074-O-23 Amending Title 3, Chapter 14 to Ban the Sale of Flavored Tobacco Products11/13/2023
74-O-23
AN ORDINANCE
Amending Title 3, Chapter 14 to Ban the Sale of Flavored Tobacco
Products
WHEREAS, the Centers for Disease Control data indicates that tobacco is
the leading cause of preventable disease, disability, and death in the United States; and
WHEREAS, the City of Evanston has been a public health leader with
respect to tobacco cessation and prevention measures; and
WHEREAS, the proliferation of new tobacco products such as flavored
tobacco has led to an increase in tobacco usage in the City, including youth use; and
WHEREAS, the implementation of a ban on the sale of flavored tobacco
products in the City has the potential to significantly reduce disease and death from
tobacco usage by reducing youth experimentation and addiction to tobacco; and
WHEREAS, the Evanston City Council finds that it is in the best interests
of the City to amend the City Code to ban the sale of flavored tobacco.
NOW BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COOK COUNTY, ILLINOIS, THAT:
SECTION 1: The foregoing recitals are hereby found as fact and
incorporated herein by reference.
SECTION 2: Title 3, Chapter 14 “Cigarettes, Tobacco and Liquid Nicotine
Products” of the Evanston City Code of 2012, as amended, is hereby further amended
as follows:
CHAPTER 14 – CIGARETTES, TOBACCO AND LIQUID NICOTINE PRODUCTS.
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3-14-1. DEFINITIONS.
BIDI CIGARETTE. A product that: a) contains tobacco that is wrapped in temburni or
tendu leaf or that is wrapped in any other material identified by
rules of the Department of Health that is similar in appearance or
characteristics to the temburni or tendu leaf, and b) does not
contain a smoke filtering device.
ELECTRONIC
CIGARETTE OR E-
CIGARETTE.
ELECTRONIC
SMOKING DEVICE
Means 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.
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.
DISTINGUISHABLE Means perceivable by either the sense of smell or taste.
FLAVOR
ENHANCER
Mean any product designed, manufactured, produced, marketed,
or sold to produce a flavored tobacco product when added to any
tobacco product.
FLAVORED
TOBACCO
Means: (1) any tobacco product that contains a taste or smell,
other than the taste or smell of tobacco, that is distinguishable by
an ordinary consumer either prior to, or during the consumption
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of, a tobacco product, including, but not limited to, any taste or
smell relating to menthol, mint, wintergreen, chocolate, cocoa,
vanilla, honey, or any candy, fruit, dessert, alcoholic beverage,
herb, or spice; or (2) any tobacco product that contains a cooling
or numbing sensation distinguishable by an ordinary
consumer during the consumption of such tobacco product
that imparts a cooling or numbing sensation. This includes
but is not limited to public statements that a product has a
minty or cooling effect, such as describing the product as
“chill,” “ice,” “fresh,” “arctic,” or “frost
>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.
PERSON. Means any natural person, individual, corporation, limited liability
company, unincorporated association, proprietorship, firm,
partnership, joint venture, joint stock association, or other entity
or business of any kind.
TOBACCO
PRODUCTS.
Any substance containing tobacco leaf, including, but not limited
to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco or
dipping tobacco.
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 as defined in this section 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 contains
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
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TOBACCO
RETAILER
Means any person, partnership, joint venture, society, club,
trustee, trust, association, organization, or corporation who owns,
operates, or manages any tobacco retail establishment. Tobacco
retailer does not mean the non-management employees of any
tobacco retail establishment.
VENDING
MACHINE.
Any mechanical, electric or electronic, self-service device which,
upon insertion of money, tokens or any other form of payment,
dispenses tobacco or liquid nicotine products.
3-14-2. LICENSE REQUIRED.
It shall be unlawful for any person to sell or offer for sale, at retail, to give away,
deliver or to keep with the intention of selling at retail, giving away or delivering tobacco
or liquid nicotine products within the City without having first obtained a license therefor.
Said license shall be required regardless of the method of sale or dispensing and shall
include sales and dispensing by self-help, manual service, mechanical service or coin-
operated device. (See Chapter 8 of this Title.) Said license shall be non-assignable and
nontransferable by the licensee, but may be transferred from one machine to a
replacement device without notification to the City Collector.
In the event the licensee chooses to offer such materials for sale by means of a
vending machine device exclusively, the provisions of this Section shall not be
interpreted to require an additional license and fee for the premises whereon such
device is located.
3-14-3. LICENSE APPLICATION.
Application for a license hereunder shall be filed in writing with the City Collector on
a form to be provided by the City annually.
3-14-4. LICENSE FEE.
The annual license fee to sell tobacco or liquid nicotine products within the City
shall be five hundred dollars ($500.00) per annum. The license fee for each additional
machine at the same premises operated by the same licensee shall be fifty dollars
($50.00). The license shall authorize the licensee named therein to sell tobacco or liquid
nicotine products only at the place designated therein. Said license shall be posted in a
conspicuous place in the premises designated therein. All fees and interest on proceeds
from fees shall be used to fund the administration and enforcement of this Chapter.
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3-14-5. LOCATION RESTRICTIONS.
(A) Prohibited. It shall be unlawful for any person to sell, offer for sale, give away, or
deliver tobacco or liquid nicotine products within one hundred fifty (150) feet as
measured from lot line to lot line of any high school, middle school or elementary
school except for the Park School and Rice Children's Center of the
Evanston/Skokie School District 65 Special Schools and Centers and private
educational institutions located in any Downtown zoning districts as listed in Title 6,
Chapter 11 of the City Code.
(B) Penalty. Any person violating this Section shall be fined not less than five hundred
dollars ($500.00) for each offense, one thousand dollars ($1,000.00) for the second
offense and license revocation for the third offense. In addition to any other penalty,
a licensee, or any agent of a licensee, convicted of violating any provision of this
Section may subject licensee to having his/her license revoked, suspended or not
renewed by the Health Director. For purposes of this Section, a clerk or
salesperson is considered an agent of the licensee.
3-14-6. PROHIBITIONS REGARDING MINORS.
It shall be unlawful:
(A) Sales To. For any person, including any licensee, to sell, offer for sale, give away or
deliver tobacco or liquid nicotine products to any person under the age of twenty-
one (21) years.
Signs informing the public of the age restrictions provided for herein shall be posted by
every licensee at or near every display of tobacco or liquid nicotine products and on or
upon every vending machine which offers tobacco products for sale. Each such sign
shall be plainly visible and shall state:
THE SALE OF TOBACCO
PRODUCTS OR LIQUID NICOTINE PRODUCTS TO PERSONS UNDER
TWENTY-ONE YEARS OF AGE IS
PROHIBITED BY LAW
The text of such signs shall be in red letters on a white background; said letters to be at
least one (1) inch high.
(B) Sale By. For any licensee or any officer, associate, member, representative, agent
or employee of such licensee, to engage, employ or permit any person under
twenty-one (21) years of age to sell tobacco products in any licensed premises.
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(C) Purchase. For any person under the age of twenty-one (21) years to purchase
tobacco or liquid nicotine products or to misrepresent his/her identity or age or to
use any false or altered identification for the purpose of purchasing tobacco or
liquid nicotine products.
(D) Possession. For any person under the age of eighteen (18) years to possess any
tobacco or liquid nicotine products; provided, that the possession by a person
under the age of eighteen (18) years under the direct supervision of the parent or
guardian of such person in the privacy of the parent's or guardian's home shall not
be prohibited.
(E) Penalties Generally. Any person violating Subsection (A) or (B) of this Section shall
be fined not less than two hundred dollars ($200.00) nor more than five hundred
dollars ($500.00) for each offense, and a separate offense shall be deemed
committed on each day during or on which a violation occurs or continues. In
addition to any other penalty, a licensee convicted of violating any provision of this
Section may be subject to having his/her license revoked, suspended or not
renewed by the Health Director.
3-14-7. CERTAIN FREE DISTRIBUTIONS PROHIBITED.
It shall be unlawful for any licensee or any person in the business of selling or
otherwise distributing, promoting, or advertising tobacco or liquid nicotine products, or
any employee or agent of any such licensee or person, in the course of such licensee's
or person's business, to distribute, give away or deliver tobacco or liquid nicotine
products free of charge to any person on any right-of-way, park, playground or other
property owned by the City, any school district, any park district or any public library.
3-14-8. VENDING MACHINE SALES PROHIBITED.
It shall be unlawful for any person to sell or offer for sale, give away, deliver or to
keep with the intention of selling, giving away or delivering tobacco or liquid nicotine
products by use of a vending machine. Such vending machines located in areas not
open to the public are exempt from this provision.
3-14-9. SALE OF BIDI CIGARETTES PROHIBITED.
No person shall sell, give away, barter, exchange, or otherwise furnish to any other
person a bidi cigarette.
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3-14-10. CONTROL OF PREMISES.
No person or entity shall be entitled to receive any license for the sale of tobacco or
tobacco or liquid nicotine products without providing proof or documentation that the
person or entity has legal control over the area wherein the sale of said tobacco,
tobacco or liquid nicotine products shall occur. Only persons or entities authorized to do
business at that location shall be entitled to secure a tobacco or liquid nicotine license at
the same location.
3-14-11. SELF-SERVICE SALES PROHIBITED.
It shall be unlawful to sell, offer for sale, give away, or display tobacco products or
liquid nicotine for sale at any location where the consumer can acquire those products
through self-service. All tobacco or liquid nicotine products will be displayed from behind
a sales/service counter so that no consumer can access tobacco or liquid nicotine
products without assistance by an employee of the licensee.
3-14-12. ADMINISTRATION AND ENFORCEMENT.
(A) Administration. The Health Director is charged with the administration of this
Chapter, including the inspection of all places where tobacco or liquid nicotine
products are licensed to be sold within the City.
(B) Suspension or Revocation of License. The Health Director may suspend or revoke
any license issued under the provisions of this Chapter if he/she determines that
the licensee has violated any of the provisions hereof.
(C) Fine in Lieu Of Suspension Or Revocation. In lieu of suspension or revocation of a
license, the Health Director may, instead, levy a fine on the licensee. The fine
imposed shall not exceed five hundred dollars ($500.00) for each violation. Each
day on which a violation continues shall constitute a separate violation.
(D) Hearing; Decision; Fees.
1. Notice of Hearing. No such license shall be suspended or revoked and no
licensee shall be fined except after a public hearing by the Health Director with
a seven (7) day written notice to the licensee affording the licensee an
opportunity to appear and defend against the charges contained in such notice.
The seven (7) day notice provisions shall begin the day following delivery by
certified mail or by personal service.
2. Health Director's Decision. The Health Director shall within seven (7) days after
such hearing, if he/she determines after such hearing that the license should
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be revoked or suspended, or that the licensee should be fined, state the
reason for such determination in a written order and either the amount of the
fine, the period of suspension or that the license has been revoked and serve a
copy of such order within the seven (7) days upon the licensee. Fines shall be
paid to the City within thirty (30) days of said decision.
3. Fees. Any licensee determined by the Health Director to have violated any of
the provisions of this Chapter shall pay to the City the costs of the hearing
before the Health Director on such violation. The Health Director shall
determine the costs incurred by the City for said hearing, including, but not
limited to, court reporter fees, the cost of transcripts or records, attorney fees,
the costs of preparing and mailing notices and orders and all other
miscellaneous expenses incurred by the City or such lesser sum as the Health
Director may allow.
The licensee shall pay said costs to the City within thirty (30) days of notification of
the costs by the Health Director. Failure to pay said costs within thirty (30) days of
notification is a violation of this Chapter and may be cause for license suspension or
revocation or the levy of a fine.
(E) Use Of Premises After License Revocation. When any license shall have been
revoked for any cause, no license shall be granted to said licensee for the period of
six (6) months thereafter for selling "tobacco products," and/or "liquid nicotine" as
defined in this Chapter in the premises described in such revoked license.
(F) Responsibility of Licensee for Agents and Employees. Every act or omission of
whatsoever nature constituting a violation of any of the provisions of this Chapter
by any officer, director, a 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 had been done or
omitted by the licensee personally.
(G) Inspections. The Health Director or their authorized designee shall conduct an
inspection, which shall include an underage buy attempt, at least once every
calendar year for all licensed establishments. Unannounced follow-up compliance
checks of all non-compliant tobacco retail establishments will occur within three
months of any violation of this chapter.
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3-14-13. SALE OF IMPROPERLY PACKAGED TOBACCO OR LIQUID NICOTINE
PRODUCTS PROHIBITED.
It shall be unlawful for any retail establishment to sell, give away, barter, exchange, or
otherwise furnish to any other person any tobacco product or liquid nicotine product,
including, but not limited to, a single or loose cigarette or e-cigarette, that is not
contained within a sealed package provided by the manufacturer that has affixed to it
any tax stamps required by law and that complies with all requirements imposed by
federal law regarding warnings and other information on packages of tobacco or liquid
nicotine products manufactured, packaged, or imported for sale, distribution, or use in
the United States.
3-14-14. - FLAVORED TOBACCO PRODUCT SALES PROHIBITED.
It shall be unlawful for any retailer to sell, offer for sale, display, market, or advertise any
flavored tobacco product, including menthol products. There shall be a rebuttable
presumption that a tobacco product is a flavored tobacco product if a tobacco retailer,
manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:
(A) Made a public statement or claim that the tobacco product imparts a taste or
smell other than the taste or smell of tobacco;
(B) Used text or images, or both, on the tobacco product’s labeling or packaging to
explicitly or implicitly indicate that the tobacco product imparts a taste or smell
other than tobacco; or
(C) Taken action directed to consumers that would be reasonably expected to cause
consumers to believe the tobacco product imparts a taste or smell other than
tobacco.
(D) The ban goes into effect on April 1, 2024 requiring all retailers to cease selling,
offering to sell and possessing with the intent to sell flavored cigarettes and
tobacco products, including menthol cigarettes and tobacco product flavor
enhancers
3-14-15. – PENALTIES.
In addition to any other penalty provided by law, any tobacco retailer who violates or
falls to comply with any portion of this Ordinance shall be subject to the following
penalties:
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(A) For a first violation, any person who violates this Chapter shall be subject to a
fine of not less than $500 more than $1,000.00 for each offense. Each day that a
violation continues shall constitute a separate and distinct offense.
(B) For a second violation in a 24-month period, any person who violates this
Chapter shall be subject to a fine of not less than $1,000.00 nor more than $2,500.00
for each offense and any tobacco license issued under this Chapter shall be suspended
for a period of fifteen (15) days.
(C) For a third violation in a 24-month period, any person who violates this Chapter
shall have its license revoked by the Health Director.
SECTION 3: All ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 4: If any provision of this ordinance or application thereof to
any person or circumstance is ruled unconstitutional or otherwise invalid, such invalidity
shall not affect other provisions or applications of this ordinance that can be given effect
without the invalid application or provision, and each invalid provision or invalid
application of this ordinance is severable.
SECTION 5: The findings and recitals contained herein are declared to be
prima facie evidence of the law of the City and shall be received in evidence as
provided by the Illinois Compiled Statutes and the courts of the State of Illinois.
SECTION 6: This ordinance shall be in full force and effect from and after
its passage, approval, and publication in the manner provided by law.
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Introduced: _________________, 2023
Adopted: ___________________, 2023
Approved:
__________________________, 2023
_______________________________
Daniel Biss, Mayor
Attest:
_______________________________
Stephanie Mendoza, City Clerk
Approved as to form:
______________________________
Alexandra B. Ruggie, Interim Corporation Counsel
November 13
November 27
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