ORDINANCE NO. 31, Series 2019 INTRODUCED BY: COUNCILOR CHELSEA BEHANNA
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAFAYETTE, COLORADO, AMENDING SECTION 75-248 OF THE CODE OF ORDINANCES OF LAFAYETTE, COLORADO, TO MAKE IT UNLAWFUL FOR PERSONS UNDER THE AGE OF TWENTY-ONE TO PURCHASE, POSSESS, USE, OR CONSUME TOBACCO PRODUCTS, INCLUDING ELECTRONIC SMOKING DEVICES AND RELATED PRODUCTS, AND TO SELL OR FURNISH SUCH PRODUCTS TO PERSONS UNDER THE AGE OF TWENTY-ONE
WHEREAS, the City of Lafayette desires to protect the health, welfare, and safety of its citizens by prohibiting the possession, use, or consumption of tobacco products, including electronic smoking devices (e.g., e-cigarettes and vaping devices), and related products by minors; and
WHEREAS, sections 18-13-121, 25-14-301, and 29-30-101 of the Colorado Revised Statutes provide that home rule municipalities may prohibit persons under 21 years of age from possessing or purchasing cigarettes, tobacco products, nicotine products, electronic cigarettes, and related products, and may prohibit the sale of such products to persons under the age of 21; and
WHEREAS, sections 18-13-121 and 25-14-301 of the Colorado Revised Statutes provide that a home rule municipality may enact requirements related to the purchase or possession of cigarettes, tobacco products, nicotine products, electronic cigarettes, and related products by a person under the age of 21 that are more stringent than state law; and
WHEREAS, national data shows that about 95 percent of adult smokers begin smoking before they turn 21, and about three-quarters of adult smokers first try smoking before age 18, with four out of five smokers becoming regular, daily smokers before they turn 21—making the 18-21 age range a critical time when many smokers transition to regular use of cigarettes; and
WHEREAS, a March 2015 report by the Institute of Medicine concluded that raising the tobacco sale age to 21 will have a substantial positive impact on public health and save lives, finding that raising the tobacco sale age will significantly reduce the number of adolescents and young adults who start smoking; reduce smoking-caused deaths; and immediately improve the health of adolescents, young adults and young mothers who would be deterred from smoking, as well as their children; and
WHEREAS, the Centers for Disease Control and Prevention reported a more than 800 percent increase in electronic cigarette use among middle school and high school students between 2011 and 2015, with 1.5 million more youth e-cigarette users in 2018 than 2017, and those youth who were using e-cigarettes were using them more often; and
WHEREAS, nicotine solutions, which are consumed via electronic smoking devices such as electronic cigarettes, are frequently sold in thousands of flavors that appeal to youth; and WHEREAS, recent studies have shown that teen vaping use in Boulder County is the second highest in the State of Colorado, with at least 36 percent of teens currently using vaping products; and
WHEREAS, the Boulder County Healthy Kids Behavior Survey found that 33 percent of Boulder Valley School District high school students admit to consuming tobacco vapor, exceeding the Colorado average of 26.2 percent and the national average of 13.2 percent; and
WHEREAS, by raising the minimum legal age to purchase or possess tobacco products, including electronic smoking devices and related products to 21 instead of 18, legal purchasers will be less likely to be in the same social networks as high school students and, therefore, less able to sell or give cigarettes to them; and
WHEREAS, the City Council of the City of Lafayette desires to amend Section 75-248 of the Lafayette Code of Ordinances to make it unlawful for any person under the age of 21 to purchase or possess tobacco products, electronic smoking devices, and related products, and to make it unlawful to any person to furnish or sell such products to any person under the age of 21; and
WHEREAS, the City Council desires to further amend Section 75-248 of the Lafayette Code of Ordinances to include electronic smoking devices and other products related to smoking, vaping, or the use or consumption of tobacco, nicotine, or other substances through inhalation, vaporization, aerosolization, and other means of consuming or ingesting such products.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LAFAYETTE, COLORADO, AS FOLLOWS:
Section 1. Section 75-248, Underage person's tobacco restrictions and prohibitions, of the Code of Ordinances of the City of Lafayette, Colorado, is amended to read:
Sec. 75-248. - Underage person's tobacco restrictions and prohibitions.
(a) Definitions. For purposes of this section the following words shall mean as defined unless the context specifies otherwise:
(1) Associated product means a product intended for use with an electronic smoking device, including refills, cartridges, and component parts. As used in this section, an associated product is a single unit.
(2) Cigarette means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains:
a. Any roll of tobacco wrapped in paper or in any substance not containing tobacco; or
b. Tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by consumers as a cigarette; or c. Any roll of tobacco wrapped in any substance containing tobacco that, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in subparagraph (a) of this paragraph (1).
d. The term "cigarette" includes roll-your-own, meaning any tobacco that, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes.
(3) Electronic smoking device means any product or device that contains or delivers nicotine or any other substance, even if marketed as nicotine-free, and that can be used by a person to enable the inhalation of vapor or aerosol from the product, and includes every variation and type of such product or device whether manufactured, distributed, marketed, or sold as an electronic cigarette, electronic cigar, electronic cigarillo, electronic pen, vape pen, electronic pipe, or electronic hookah or under any other product name or descriptor. Electronic smoking device does not include:
a. a humidifier or similar device that emits only water vapor; or b. an inhaler, nebulizer, or vaporizer that is approved by the federal Food and Drug Administration for the delivery of medication. (4) Tobacco means cigarettes, cigars, cheroots, stogies, and periques; little cigars, small cigars, and cigarillos; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff and snuff flour; snus; cavendish; plug and twist tobacco; fine-cut and other chewing tobacco; shorts, refuse scraps, clippings, cuttings, and sweepings of tobacco; and other kinds and forms of tobacco intended for human consumption, whether heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, ingested, or applied to the skin of an individual. Tobacco also includes cloves and any other plant matter or product that is packaged for smoking. Tobacco includes tobacco prepared, treated, or modified in such a manner that it may be inhaled or otherwise ingested through the use of an electronic smoking device.
(5) Tobacco paraphernalia means any item designed or marketed for the consumption, use, or preparation of tobacco products.
(5) Tobacco product means:
a. Tobacco, or any product that contains nicotine or tobacco or is made or derived from tobacco or is used to deliver tobacco or nicotine, synthetic nicotine, or any other substance intended for human consumption, whether heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, ingested, or applied to the skin of an individual;
b. Cigarettes;
c. Tobacco paraphernalia; d. Electronic smoking device; or
e. Associated product;
f. Notwithstanding any provision of paragraphs a. through e. above to the contrary, tobacco product does not mean a product that the federal Food and Drug Administration has approved as a tobacco use cessation product.
(b) It shall be unlawful for anyone under the age of twenty-one (21) years to purchase, possess, use, or consume either by heating, burning, ingesting, absorbing, chewing, dissolving, inhaling, snorting, sniffing, or applying to the skin any tobacco products.
(c) It shall be unlawful for any person to knowingly furnish to any person who is under twenty-one (21) years of age, by gift, sale, or any other means, any tobacco products.
(d) Any person who sells, or offers to sell any tobacco products, shall display a warning sign as specified in this section. The warning shall be displayed in a prominent place within the establishment, and shall have a minimum height of three (3) inches and a width of six (6) inches, and shall read as follows:
WARNING IT IS ILLEGAL FOR ANY PERSON UNDER TWENTY-ONE YEARS OF AGE TO PURCHASE TOBACCO PRODUCTS, INCLUDING, BUT NOT LIMITED TO CIGARETTES, TOBACCO PARAPHERNALIA, ELECTRONIC SMOKING DEVICES, AND ASSOCIATED PRODUCTS. CITY OF LAFAYETTE CODE OF ORDINANCES § 75-248
(e) That any person under the age of twenty-one (21) is or was in possession of any package or container of any kind with labeling indicating that such contains tobacco products shall be prima facie evidence of a violation of subsections (b) and (c) herein.
(f) It shall be unlawful for any person who sells or offers to sell any tobacco products to store, display, or sell such tobacco products in any area or means that is accessible for use by the public without assistance from the seller of such goods or products. This subsection shall not be construed to preclude or prohibit the storage or display of tobacco products in an area viewable by the public so long as such items are not accessible to the public without assistance from the seller.
Section 2. If any article, section, paragraph, sentence, clause or phrase of this ordinance is held to be unconstitutional or invalid for any reason, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each part or parts hereof irrespective of the fact that any one part or parts be declared unconstitutional or invalid. Section 3. All other ordinances or portions thereof inconsistent or conflicting with this ordinance or any portion hereof is hereby repealed to the extent of such inconsistency or conflict.
Section 4. The repeal or modification of any provision of the Code of Ordinances, City of Lafayette, Colorado, by this ordinance shall not release, extinguish, alter, modify or change in whole or in part any penalty, forfeiture or liability, either civil or criminal, which shall have been incurred under such provision. Each provision shall be treated and held as still remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings and prosecutions for enforcement of the penalty, forfeiture or liability, as well as for the purpose of sustaining any judgment, decree or order which can or may be rendered, entered or made in such actions, suits, proceedings or prosecutions.
Section 5. This ordinance is deemed necessary for the protection of the health, welfare and safety of the community.
Section 6. This ordinance shall become effective upon the latter of the 10th day following enactment, or the day following final publication of the ordinance.
INTRODUCED AND PASSED ON FIRST READING THE 15TH DAY OF OCTOBER, 2019.
PASSED ON SECOND AND FINAL READING AND PUBLIC NOTICE ORDERED THE 4TH DAY OF NOVEMBER 2019.
CITY OF LAFAYETTE, COLORADO
______Alexandra Lynch, Mayor
ATTEST:
______Susan Koster, CMC, City Clerk
APPROVED AS TO FORM:
______David S. Williamson, City, Attorney