Newton City Commission raises minimum age to buy tobacco

Local

NEWTON, Kan. (KSNW) – The city of Newton is cracking down on smoking after a group of teenagers went in front of the commission to request to raise the tobacco-buying age from 18 to 21 back in July.

On Tuesday night, the city commission passed an ordinance that makes it illegal for anyone under the age of 21 to buy tobacco or nicotine products.

All tobacco products are covered in the ordinance, including cigarettes, e-cigarettes (such as Juul), cigars, chewing tobacco, etc. 

Zachary Dillon, owner of August 8th Vape shop in Newton, is glad to see the purchasing age increased. It’s a change his shop already made back in July.

“I personally felt that way for a while that that was a move we should make,” said Dillon.

Several other smoke shops around town did not want to comment. Some in the community think it’s not fair.

“It shouldn’t have been passed, but now that it is, it’s going to be pretty weird for some people,” said Morgan King from Newton.

If someone between the age of 18 and 21 is caught in possession of a tobacco product in Newton, they will not be fined or penalized, according to the ordinance.

“We are keenly aware that this is not going to keep someone from getting those products if they want them,” said Newton Mayor Kathy Valentine. “It might hinder them here in Newton. We have to do what is right for Newton, what we believe is right for Newton.”

The ordinance, called Tobacco 21, takes effect Jan. 1, 2020. (Read the ordinance below). Communities such as Garden City, Holcomb and Topeka have one in place.

Ginny Chadwick, western regional director of Tobacco 21, said Newton was the 500th city in the nation to adopt T21.

Beginning next year, tobacco retailers will be required to obtain an annual license for each sales location, with an annual fee of $400, which is designed to offset the city’s costs of administering the ordinance and conducting compliance checks.

“This is all part of that process and necessary in order to make sure that those who own these stores are living up to what’s required of them,” said Valentine.

According to the Kansas Communities That Care Survey, in 2018, 5.16 percent of Harvey County youth reported using e-cigarettes in the last 30 days. This year, that number is up to 11.89 percent. Looking at high school seniors alone, that number jumps to 29.29 percent.


READ THE ORDINANCE:

ORDINANCE NO ____________

AN ORDINANCE OF THE CITY OF NEWTON, KANSAS, REPEALING EXISTING UPOC SECTIONS 5.6 AND 5.7 AND ENACTING, IN ITS PLACE, CHAPTER XVII., ARTICLE 6 OF THE CODE OF THE CITY OF NEWTON, KANSAS, PERTAINING TO THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER AGE 21.

BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF NEWTON, KANSAS:

SECTION 1. Sections 5.6 and 5.7 of the Uniform Public Offense Code of the City of Newton is hereby repealed in their entirety, it being the intent of the Governing Body that Section 2 of this Ordinance supersede those provisions.

SECTION 2. The Code of the City of Newton, Kansas, is hereby amended by adding Chapter XVII., Article 6 which reads as follows:

CHAPTER XVII., ARTICLE 6.

SALES AGE OF TOBACCO PRODUCTS

17-601. SHORT TITLE. This Article shall be known as the City’s “Sales Age of Tobacco Products”

17-602. PURPOSE. The Governing Body finds that, in order to advance the health, safety, and welfare of the residents of the City of Newton, Kansas, it is necessary to regulate and license all Tobacco Retailers.

17-603 DEFINITIONS. The following words, terms and phrases, when used in this Article, shall except where the context clearly indicates otherwise, have the following meanings:

(a) Distribute or Distribution. To furnish, give, provide, sell or attempt to do so, whether gratuitously or for any type of compensation.

(b) Electronic Smoking Device. 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.

(c) Person. Any natural Person.

(d) Purchaser. Any Person who obtains or attempts to obtain a Tobacco Product.

(e) Self-Service Display. Any display from which customers may select a Tobacco Product without assistance from the Tobacco Retailer or the Tobacco Retailer’s agent or employee and without a direct Person-to-Person transfer between the Purchaser and the Tobacco Retailer or Tobacco Retailer’s agent or employee. A vending machine is a form of Self-Service Display.

(f) Tobacco Product. (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 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 contain 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 authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.

(g) Tobacco Retail Establishment. Any place of business where Tobacco Products are available for sale to the general public. The term includes but is not limited to grocery stores, Tobacco Product shops, kiosks, convenience stores, gasoline service stations, bars, and restaurants.

(h) Tobacco Retailer. 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.

17-604. MINIMUM LEGAL SALES AGE FOR TOBACCO PRODUCTS. The Distribution of any Tobacco Product to a Person under the age of 21 is prohibited.

17-605. AGE VERIFICATION. Before distributing any Tobacco Product, the Tobacco Retailer or the Tobacco Retailer’s agent or employee shall verify that the Purchaser is at least 21 years of age. Each Tobacco Retailer or Tobacco Retailer’s agent or employee shall examine the Purchaser’s government-issued photographic identification. No such verification is required for a Person over the age of 30. That a Purchaser appeared to be 30 years of age or older shall not constitute a defense to a violation of this Section.

17-606. SELF-SERVICE DISPLAYS. No Tobacco Retailer or their employee or agent shall sell or otherwise Distribute Tobacco Products by or from a Self-Service Display except in places where Persons under the age of 21 are not permitted access at any time

17-607. SIGNAGE. No Tobacco Retailer shall sell, permit the sale of, or Distribute Tobacco Products in the City of Newton unless City-issued notice is posted at any location where Tobacco Products are available for purchase. The required notice must be posted in a manner conspicuous to both employees and consumers, unobstructed from view in their entirety, and within six feet of each register where Tobacco Products are available for purchase. The City of Newton shall provide the required notice upon the issuance of a license, which shall state “NO PERSON UNDER THE AGE OF 21 MAY BE SOLD TOBACCO PRODUCTS, INCLUDING ELECTRONIC SMOKING DEVICES.” The required notice will be at least 14” by 11” and the words on the notice will be legibly printed in a high contrast red color with capitalized letters at least one inch high.

17-608. ENFORCEMENT. The Tobacco Retailer shall be subject to at least two unannounced compliance checks per year. The City shall designate a Person or authority to conduct compliance checks by engaging Persons between the ages of 18 and 20 to enter the Tobacco Retail Establishment to attempt to purchase Tobacco Products. Unannounced follow-up compliance checks of all non-compliant Tobacco Retailers are required within three months of any violation of this Ordinance. The results of all compliance checks shall be published at least annually and made available to the public upon request.

17-609. LICENSING. Each Tobacco Retailer engaging in the Distribution of Tobacco Products, at each location in the City of Newton shall secure, and display at all times, a tobacco retail sales license from the City before engaging or continuing to engage in such business. No Tobacco Retailer may Distribute Tobacco Products without a valid tobacco retail sales license.

The fee for a tobacco retail sales license shall be set at $400 and used to cover the administrative cost for licensing administration, education and training, retail inspections, and unannounced compliance checks. A tobacco retail sales license cannot be renewed if the Tobacco Retailer has outstanding fines pursuant to this Ordinance.

17-610. TOBACCO RETAILER RESPONSIBILITY. No tobacco retail sales license shall be issued or renewed to a tobacco retail sales licensee unless the Tobacco Retailer signs a form stating that the Tobacco Retailer has read this Ordinance and has provided training to all employees on the sale of Tobacco Products. Such training shall include information that the sale of Tobacco Products to Persons under 21 years of age is illegal, the types of identification legally acceptable for

proof of age, and that sales to Persons under 21 years of age shall subject the Tobacco Retailer to penalties.

Upon the issuance of any Tobacco Retailer License, the Tobacco Retailer shall be responsible for providing ongoing education to all new agents or employees of the provisions in the law.

17-611. TOBACCO RETAILER LICENSE TERM. Each Tobacco Retailer License issued under this Article, as amended, shall be valid until 11:59 p.m. on December 31st of the year in which the Tobacco Retailer License is issued.

Any business found to be selling Tobacco Products without a license 180 days after the enactment of this Ordinance shall be issued a No Sales Order for Tobacco Products and be ineligible to receive a tobacco retail license for a period of one (1) year.

17-612. TOBACCO RETAILER LICENSE RENEWAL.

(a) In order to retain a Tobacco Retailer License, the Tobacco Retailer must renew the Tobacco Retailer License on an annual basis. To renew the Tobacco Retailer License, the Licensee must submit a Tobacco Retailer License Renewal Application and the renewal fee to the City or their authorized designee on a form provided by the City or their designee for that purpose.

(b) On or about November 1st of each year, the City of Newton will mail to a Tobacco Retailer a renewal Notice and the form for the Renewal Application.

(c) To renew a Tobacco Retailer License, the Tobacco Retailer must, before January 1st of the succeeding year: (1) remit to the City the Tobacco Retailer License Fee as set forth in this Article; and (2) return the renewal form and all requested information, to the City.

(d) Any renewal application received after January 1st, but before March 1st of the succeeding year, shall be approved by the City if the Tobacco Retailer includes all information required and an additional $75.00 late fee, to cover the additional costs of processing late renewal applications. If a Tobacco Retailer fails to renew a Tobacco Retailer License before March 1st of the succeeding year, then that Tobacco Retailer License will have expired and cannot be extended for the remainder of the calendar year.

17-613. APPEAL.

(a) Any Tobacco Retailer aggrieved by the action of the City of Newton in issuing a suspension or revocation of a Tobacco Retailer License shall have the right to appeal that action. Such appeal shall be taken by filing with the City of Newton a Notice of Appeal within fourteen (14) days of the date of the Notice of Penalty. The Notice of Appeal shall be in writing and shall set forth in sufficient detail why the Tobacco Retailer believes that the Notice of Penalty was issued in error. After the Notice of Appeal is filed, the City shall set a time and place for a public hearing. Notice of Hearing shall be given to the Tobacco Retailer in the same manner as the Notice Penalty. To prevail on appeal, the Tobacco Retailer must prove that it is more probably true than not true that the Notice of Penalty was issued in error.

(c) Except where there are exigent circumstances, which exigent circumstances will be noted in the Notice and Order, the filing of a Notice of Appeal shall stay all administrative action on the Notice and Order until the appeal is heard and decided by the City of Newton.

(d) On appeal, the decision of the Appeals shall be a final order. Any Person aggrieved by a final order of the City of Newton shall have the right, in accordance with state law, to appeal that final order to the District Court of Harvey County, Kansas.

17-614. CONTINUING EDUCATION. The City of Newton shall engage in a continuing public health education program to explain and clarify the purposes and requirements of this Article to Persons affected by it, and to guide Tobacco Retailers and their agents or employees in their compliance. The program may include publication of a brochure for affected Tobacco Retailers explaining the provisions of this Article and signage mandated by this Article.

17-615 PENALTIES

(a) Tobacco Retailers. Any Tobacco Retailer found to have violated this Ordinance shall be subject to: (1) For a first violation, a fine no less than $500; (2) For a second violation within a 36 month period, a fine no less than $750 and the Tobacco Retailer shall be prohibited from distributing Tobacco Products for a minimum of seven days; (3) For a third violation within a 36 month period, a fine no less than $1,000 and the Tobacco Retailer shall be prohibited from distributing Tobacco Products for a minimum of 30 days; and (4) For a fourth and any subsequent violations within a 36 month period, a fine no less than $1,000 and the Tobacco Retailer shall be prohibited from distributing Tobacco Products for a period of three years.

(b) Employees. Any Person found to have violated this Ordinance while acting as a non-management agent or employee of a Tobacco Retailer shall be subject to non-criminal, non-monetary penalties, including, but not limited to, education classes, and community services.

(c) Other Persons. Any Person 21 years of age or older, besides a Tobacco Retailer or a Tobacco Retailer’s agent or employee, who violates this Ordinance is deemed guilty of an infraction, carrying a scheduled fine of $50.

(d) Related Violations. A violation of any federal, state, or local law, Ordinance provision, or other regulation relating to Tobacco Products is also a violation of this Ordinance. In addition to any other penalty, a Tobacco Retailer who violates any provision of this Ordinance or any federal, state, or local law, Ordinance provision, or other regulation relating to Tobacco Products, shall be subject to penalties stated in this Ordinance, including fines and a prohibition of the Distribution of Tobacco Products.

(e) Criminal Prosecution. With the exception of prosecution of any Person 21 years of age or older under 17-615(c), the City of Newton shall not initiate criminal proceedings against any Person other than a Tobacco Retailer for any alleged violation of this Ordinance.

17-616. EXCEPTIONS AND DEFENSES

(a) The penalties in this Ordinance do not apply to a Person younger than 21 years of age who purchases or attempts to purchase Tobacco Products while under the direct supervision of the City of Newton Staff or their authorized appointees for training, education, research, or enforcement purposes.

(b) Nothing in this Ordinance prohibits a Person under the age of 21 from handling Tobacco Products in the course of lawful employment by a Tobacco Retailer.

(c) Nothing in this Ordinance prevents the provision of Tobacco Products to any Person as part of an indigenous practice or a lawfully recognized religious, spiritual, or cultural ceremony or practice.

(d) It shall be an affirmative defense to a violation of this Ordinance for a Tobacco Retailer or their agent or employee if the Person receiving the Tobacco Product exhibited to the defendant a driver’s license, Kansas non driver’s identification card or other official or apparently official document containing a photograph of the Person and purporting to establish that the Person was of legal age to purchase or receive Tobacco Products.

(e) It shall be a defense to prosecution under this Article if the defendant engages in the lawful sale, furnishing or Distribution of Tobacco Products and the defendant sold, furnished or Distributed the Tobacco Product to the Person by mail only after the Person had provided to the defendant an unsworn declaration, conforming to K.S.A. 53-601 and amendments thereto, that the Person was 21 or more years of age.

SECTION 3. Severability Clause. If any Section, sentence, clause, or phrase of this Ordinance is found to be unconstitutional or is otherwise held invalid by any court of competent jurisdiction, it shall not affect the validity of any remaining parts of this Ordinance.

SECTION 4. Effective Date. After approval, passage, and publication, as provided by law, this Ordinance shall be in full force and effect commencing January 1st, 2020.

PASSED by the Governing Body of the City of Newton, Kansas, this 24th day of September 2019.

APPROVED:

________________________________

Kathleen Valentine

Mayor

ATTEST:

__________________________________

Denise Duerksen

City Clerk

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