HomeMy WebLinkAbout2021-008ORDINANCE NO. 2021- 008
AN ORDINANCE OF INDIAN RIVER COUNTY, FLORIDA,
AMENDING CHAPTER 313 (MERCHANDISING OF
TOBACCO PRODUCTS) OF THE CODE OF INDIAN RIVER
COUNTY, RELATED TO THE USE OF TOBACCO
PRODUCTS AND ELECTRONIC CIGARETTES; TO
PROHIBIT THE SALE AND DISTRIBUTION OF TOBACCO
PRODUCTS AND ELECTRONIC CIGARETTES TO
PERSONS UNDER 21 YEARS OF AGE AND PROVIDING
FOR ADDITIONAL REQUIREMENTS FOR THE SALE OF
TOBACCO PRODUCTS AND USE OF ELECTRONIC
CIGARETTES; PROVIDING FOR PENALTIES; PROVIDING
FOR CONFLICT AND SEVERABILITY; PROVIDING FOR
CODIFICATION; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, Indian River County recognizes that the use of tobacco products has
devastating health and economic consequences; and
WHEREAS, commercial tobacco use is the foremost preventable cause of
premature death in America, with tobacco use responsible for 480 million deaths annually;
and
WHEREAS, tobacco product use leads to more than $300 billion in healthcare and
lost worker productivity each year, and tobacco use costs the State of Florida $8.64 billion
in healthcare costs annually; and
WHEREAS, young brains are particularly susceptible to the addictive properties of
nicotine, which can result in addiction to other drugs; and
WHEREAS, a 2012 Surgeon General's report found that almost 90% of smokers
in the United States began smoking before the age of 21; and
WHEREAS, an estimated 5.6 million youths under the age of 18, approximately 1
in 13 Americans 17 years or younger alive today, are expected to die prematurely from
smoking related illness; and
WHEREAS, a National Academy of Medicine report predicts that raising the
minimum legal age of the sale of tobacco products nationwide to age 21 would result in
223,000 fewer premature deaths, 45,000 fewer deaths from lung cancer,, and 4,200,000
fewer years of life lost for those born between 2000 and 2019. In addition, the report
concluded that raising the minimum legal age of sale would result in near immediate
reductions in preterm birth, low birth weight, and sudden infant death syndrome;.and
ORDINANCE NO. 2021- 008
WHEREAS, in 2015, the National Academy of Medicine concluded that raising the
minimum legal sales age for tobacco products nationwide would reduce tobacco initiation,
particularly among adolescents aged 15 to 17, improve health across the lifespan, and
save lives; and that raising the minimum legal sales for tobacco products nationwide to
age 21 would, over time, lead to a 12 percent decrease in smoking prevalence; and
WHEREAS, 33 states and over 555 cities and counties have enacted minimum
legal sales age 21 policies to further restrict access to commercial tobacco; and
WHEREAS, the federal government has raised the age to 21; and
WHEREAS, raising the age for tobacco sales in Indian River County, Florida,
would lessen the accessibility of tobacco to minors and further the County's interest in
protecting the health, safety, and general welfare of the residents of the County; and
WHEREAS, the use of high-tech nicotine dispensing devices, commonly referred
to as electronic cigarettes or e -cigarettes, is becoming more prevalent and wide -spread;
and
WHEREAS, nationwide 40% of high school seniors have vaped in the last 30 days;
and
WHEREAS, e -cigarettes are the most common tobacco product used by 18 to 24 -
year -olds. As of 2020, e -cigarette use has increased 24.6% since 2011; and
WHEREAS, a laboratory test conducted by the U.S. Food and Drug Administration
(FDA) has shown that e -cigarette vapors contain carcinogens, and FDA tests showed that
e -cigarette vapors were found to contain toxic chemicals such as diethylene glycol, a
common ingredient in antifreeze; and
WHEREAS, the Florida Legislature has addressed the effects of smoking
conventional tobacco products and second-hand smoke by adoption of the "Florida Clean
Indoor Air Act," section 386.201, Florida Statutes et seq., which Act prohibits smoking in
specified indoor areas; and
WHEREAS, while the regulation of smoking is preempted to the state, per section
386.209, Florida Statutes, local governments can impose more restrictive regulations on
the use of vapor -generating devices,
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA THAT:
Section 1. Enactment Authority.
Article VIII, section 1 of the Florida Constitution and chapter 125, Florida Statutes vest
broad home rule powers in counties to enact ordinances, not inconsistent with general or
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ORDINANCE NO. 2021- 008
special law, for the purpose of protecting the public health, safety and welfare of the
residents of the county. The Indian River County Board of County Commissioners
specifically determines that the enactment of this ordinance is necessary to protect the
health, safety and welfare of the residents of Indian River County.
Section 2. Amendment of Chapter 313 (Merchandising of Tobacco Products).
New language indicated by underline, and deleted language indicated by c+rikethrounh.
Chapter 313 (Merchandising of Tobacco Products) of the Code of Indian River County,
Florida is hereby amended to read as follows:
CHAPTER 313- MERCHANDISING AND SALE OF TOBACCO PRODUCTS AND
MERCHANDISING, SALE AND USE OF ELECTRONIC CIGARETTES
ARTICLE I.- IN GENERAL
Section 313.01.- Title.
This chapter shall be known and may be cited as the "Merchandising and Sale of Tobacco
Products and Merchandisinq, Sale and Use of Electronic Cigarettes Ordinance."
Section 313.011.- Purpose and Intent. fl
It is the intent of this chapter to promote, protect, and improve the health safety, and
general welfare of the citizens of Indian River County by discouraging the unhealthy
practice of using tobacco and related products and to help prevent the addiction to
nicotine, especially by young people, through regulation of the sale merchandising and
use of certain tobacco, nicotine, and related products the regulation of which is not
preempted to the federal or state government.
Section 313.02.- Definitions.
For the purpose of this chapter, the following terms shall mean:
Business means any sole proprietorship, joint venture, partnership, corporation, or
limited liability company or other business formed for profit making or non-profit
purposes in both the incorporated and unincorporated areas of Indian River County,
including retail establishments where goods or services are sold.
EleGtrnnin ninnfine de fiy,,n, ,.evi,.Electronic cigarette or e -cigarette or nicotine
dispensing device means a an electronic device or product that produces a vapor that
delivers liquid nicotine or other substances to a person inhaling from the device to
simulate smoking and that is G#BFed to or p4rGhased by Gensumers as an.This term
shall also include eIen+rr,nin 69arette electronic cigars, electronic cigarillos, electronic
pipes, of and other similar devices or products.
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ORDINANCE NO. 2021- 008
Enclosed indoor workplace shall have the same meaning and definition as provided in
the Florida Clean Indoor Air Act, F.S. $ 386.201, et seq.
Liquid nicotine means any liquid product composed either in whole or in part of pure
nicotine and propylene glycol and/or any other substance and manufactured for use
with e -cigarettes. l
Person means any individual, partnership, cooperative association, private corporation,
personal representative, receiver, trustee, assignee, or other legal entity.
Self-service merchandising means the open display of tobacco products to which the.
public has access without the intervention of the vendors, store owner, or other store
employee.
Tobacco products or nicotine products include loose tobacco leaves, products made by
tobacco leaves, in whole or in part, cigarette wrappers, which can be used for smoking,,
sniffing, or chewing, and electronic RiGgtine delivery deyi^cigarettes.
Tobacco retailer means any person or business that operates a store, stand, booth,
concession, or other place at which sales of tobacco products are made to purchasers
for consumption or use.
Vendor assisted means the customer has no access to tobacco products without the
assistance of the vendor, store owner, or other store employee.
Section 313.03.- Merchandising prohibited.
(a) No person, business, tobacco retailer, or other establishment subject to this
chapter shall sell, permit to be sold, offer for sale, or display for sale any tobacco
products, including electronic cigarettes, by means of self-service merchandising.
Only vendor assisted sales are allowed, unless access to the premises by
persons under the age of eighteen (1-84 twenty-one (21) is prohibited by the
person, business, tobacco retailer, or other establishment or prohibited by law.
No 'person, business, retailer; or other establishment engaged in the retail sale of
tobacco products shall place tobacco products in an open display unit unless the
same is located in an area that is inaccessible to customers.
313.04.- Prohibitions.
It shall be unlawful for any person to sell, offer for sale give away, or deliver any
tobacco product, to any person under the age of twenty-one (21) years. If any person
suspects that a minor is attempting to purchase or obtain any tobacco product such
person shall request and examine identification from the purchaser or acquirer and
positively establish the purchaser's or acquirer's age as twenty-one (21) or greater
before allowing the purchase or delivery of such products to occur.
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313.05.- Aae Verification.
Before distributing or sellinq any tobacco product, or products regulated by this article
the retailer shall verify that the recipient is at least twenty-one (21) years of age.
Retailers must verify the legal sales age by examining the recipient'sgovernment-
issued identification. Verification is not required for a person over the age of thirty (30).
A recipient appearing to be thirty (30) years of age or older shall not constitute a
defense to a violation of this section.
313.06.- Signage.
(a) Any retailer that sells tobacco products or electronic cigarettes shall post a clear and
conspicuous sign in each place or business where such products are sold which
substantially states the following_
THE SALE OF NICOTINE PRODUCTS OR NICOTINE DISPENSING DEVICES TO
PERSONS UNDER THE AGE OF 21 IS AGAINST THE INDIAN RIVER COUNTY
CODE. PROOF OF AGE IS REQUIRED FOR PURCHASE.
(b) Any retailer that sells tobacco products or electronic cigarettes shall provide at the
checkout counter in a location clearly visible to the retailer or the retailer's agent or
employee instructional material in a calendar format to assist in determining whether a
person is of legal age to purchase tobacco products or electronic cigarettes. This point
of sale material must contain substantially the following language:
IF YOU WERE NOT BORN BEFORE THIS DATE
(insert date and applicable year)
YOU CANNOT BUY TOBACCO PRODUCTS OR
ELECTRONIC CIGARETTES OR LIQUID NICOTINE PRODUCTS.
In lieu of a calendar a retailer may use card readers, scanners, or other electronic or
automated systems that can verify whether a person is of legal age to purchase tobacco
products or electronic cigarettes.
ARTICLE II.- ELECTRONIC CIGARETTES
313.07.- Use of e -cigarettes prohibited where smoking is prohibited.
(a) A person may not use, employ, or otherwise operate any nicotine dispensing device
or e -cigarette in any enclosed indoor workplace located within the county wherein
smoking is prohibited pursuant to the Florida Clean Indoor Air Act, F.S. § 386.201, -et
seq. The exceptions provided in said Act that permit smoking in certain places shall also
apply to permit the use of nicotine dispensing devices and e -cigarettes in the same
places designated in the Act. In addition, the use of nicotine dispensing devices and e -
cigarettes may be permitted in a retail e -cigarette shop.
ORDINANCE NO. 2021- 008
(b) The proprietor or other person in charge of any enclosed indoor workplace subject to
the prohibition established in subsection (a) must develop and implement a policy for
compliance with said prohibition. The policy may include, but is not limited to,
procedures to be taken when the proprietor or other person in charge witnesses or is
made aware of a violation of subsection (a) and must include a policy which prohibits an
employee from using any nicotine dispensing device or e -cigarette in the enclosed
indoor workplace. In order to increase public awareness, the proprietor or person in
charge of the enclosed indoor workplace may, at his or her discretion, post signs stating
"NO SMOKING OR USE OF E -CIGARETTES" or similar language as deemed
appropriate.
Section 3. Conflict. All ordinances or parts of ordinances in conflict herewith are hereby
repealed.
Section 4. Severability. If any part of this ordinance is held to be invalid or
unconstitutional by a court of competent jurisdiction, the remainder of this ordinance shall
not be affected by such holding and shall remain in full force and effect.
Section 5. Codification. It is the intention of the Board of County. Commissioners that
the provision of this ordinance shall become and be made part of the Indian River County
Code, and that the sections of this ordinance may be renumbered or re -lettered and the
word ordinance may be changed to section, article or such other appropriate word or
phrase in order to accomplish such intention.
Section 6. Effective Date. This ordinance shall become effective upon adoption by the
Board of County Commissioners and filing with the Department of State.
This ordinance was advertised in the Indian River Press Journal on the 21 st day of March,
2021, for a public hearing to be held on the 6th day of April, 2021, at which time it was
moved for adoption by Commissioner O'Bryan seconded by
Commissioner Flescher , and adopted by the following vote:
Chairman, Joseph E. Flescher
AYE
Vice -Chairman, Peter D. O'Bryan
AYE
Commissioner Susan Adams
AY2
Commissioner Joseph H. Earman
AYE
Commissioner Laura Moss
AYE
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ORDINANCE NO. 2021-008
The Chairman thereupon declared the ordinance duly passed and adopted this 6th day
of April, 2021.
BOARD OF
COMMISSIONERS OF
COUNTY, FLORIDA
I
ATTEST: Jeffrey R. Smith, Clerk
and Comptroller
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By
P
Deputy Clerk
IN ER
EFFECTIVE DATE: This Ordinance was filed with the Department of State on the gt
day of , 2021.
APPROVED AS TO FORM
AILD LEGAL SU FICI CY
BYDYLAN REINGOLD
COUNTY NTY ATTORNEY
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