­NOTICE IS HEREBY GIVEN that at its regular meeting on February 5, 2019, at the Township Hall located at 6483 Waldon Center Drive, Independence, MI  48346, the Charter Township of Independence Board of Trustees approved the Introduction and First Reading of an amendment to the Township’s Code of Ordinances and scheduled a Second Reading of the amendment at a regular meeting to be held on February 19, 2019 to consider adoption of the ordinance as follows:

STATE OF MICHIGAN

COUNTY OF OAKLAND

CHARTER TOWNSHIP OF INDEPENDENCE

ORDINANCE NO. 2019-30-TBD

PREAMBLE

Persons under 18 years of age are prohibited from purchasing or possessing cigarettes and other tobacco products, and retailers are prohibited from selling them to minors.  However, new tobaccoless, vapor products, commonly referred to as e-cigarettes, are available which allow the user to simulate cigarette smoking and ingest nicotine.  These products may be purchased by minors and are being marketed without age restrictions or health warnings and come in different flavors that appeal to young people.

The production and distribution of e-cigarettes is not currently regulated by federal or state authorities, but the U.S. Food and Drug Administration is expected to impose severe restrictions on the sale of most e-cigarette products.  The FDA has determined that e-cigarettes can increase nicotine addiction among young people and contain chemical ingredients known to be harmful, which may expose users and the public to health risks.

Therefore, the Charter Township of Independence determines that prohibiting the sale, giving or furnishing of tobacco and/or e-cigarettes to minors and prohibiting the purchase, possession or use of tobacco and/or e-cigarettes by minors is in the Township’s best interests and will promote the public health, safety and welfare.  For purposes of this Ordinance, the Township is adopting the term “vapor product” to address e-cigarettes and all similar devices, because this term has been identified by the Michigan House and Senate in Senate Bills 667 and 668, enrolled in June of 2014, as part of proposed amendments to the Youth Tobacco Act, being Public Act 31 of 1915.  Therefore,  

THE CHARTER TOWNSHIP OF INDEPENDENCE ORDAINS FOR INCORPORATION INTO THE TOWNSHIP CODE:

Section 1. SHORT TITLE.

This Ordinance shall be known as and may be cited as the “Tobacco and Vapor Product Ordinance”.

Section 2.  AMENDMENT. Amendment to Chapter 30. Chapter 30 of the Code of Ordinances, Charter Township of Independence, (Offenses), Article VIII (Offenses Concerning Minors) Division 1. (Generally) Section 30-221, previously reserved, is amended and replaced by new Section 30-221, which shall read as follows:

Section 30-221 Tobacco and Vapor Products

(a)  Definitions

As used in this Section, the following words and phrases shall have the meaning set forth herein.

Minor means an individual who is less than eighteen (18) years of age.

Person who sells tobacco products at retail means a person whose ordinary course of business consists, in whole or in part, of the retail sale of tobacco products subject to state sales tax.

Person who sells vapor products at retail means a person whose ordinary course of business consists, in whole or in part, of the retail sale of vapor products.

Possession of a tobacco product shall mean either actual physical control of the tobacco product without necessarily owning that product, or the right to control the tobacco product even though it is in a different room or place than where the person is physically located.

Public place means a public street, sidewalk, or park or any area open to the general public in a publicly owned or operated building or premises, or in a public place of business, or on school property.

School District means a school district, local art school district or intermediate school district, as those terms are defined in the School Code of 1976, Act. No. 451 of the Public Acts of Michigan of 1976 (MCL 380.1 et seq.) as amended, or a consortium or cooperative arrangement consisting of any combination of these.

School Property means a building, facility or structure or other real estate owned, leased or otherwise controlled by a school district.

Tobacco product means a product that contains tobacco and is intended for human consumption, including but not limited to, cigarettes, non-cigarette smoking tobacco, or smokeless tobacco, as those terms are defined in Section 2 of the Tobacco Products Tax Act, and cigars. Tobacco product does not include a vapor product or a product regulated as a drug or device by the United States Food and Drug Administration.

Use a tobacco product or vapor product means to smoke, chew, suck, inhale, or otherwise consume a tobacco product or vapor product.

Vapor product means a noncombustible product containing nicotine that employs a heating element, power source, electronic circuit, or other electronic, chemical or mechanical means, regardless of shape or size, that can be used to produce vapor from nicotine in a solution or other form. Vapor product includes an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and a vapor cartridge or other container of nicotine in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device. Vapor product does not include a product regulated as a drug or device by the United States Food and Drug Administration.

Nicotine means a colorless, oily, water-soluble, highly toxic alkaloid found in tobacco.

Smoking or Smoke means the carrying by a person of a lighted cigar, cigarette, pipe or other lighted smoking device, including, but not limited to electronic cigarettes or inhalants.

(b) Prohibited conduct by Minors.

Subject to subsection (d), a minor shall not do any of the following:

(1)  Purchase or attempt to purchase a tobacco product or vapor product.

(2)  Possess or attempt to possess a tobacco product or vapor product.

(3)  Use a tobacco product or vapor product in a public place.

(4)  Present or offer to an individual a purported proof of age that is false, fraudulent, or not actually his or her own proof of age for the purpose of purchasing, attempting to purchase, possessing, or attempting to possess a tobacco product or vapor product.

(c)  An individual who violates subsection (b) shall be subject to the following penalties:

(l) For the first violation, and for each violation committed by a person under age seventeen (17), the person is responsible for a civil infraction punishable by a civil fine of fifty dollars ($50.00).

(2)  For a second or subsequent violation, a person is guilty of a misdemeanor punishable by a fine of not more than fifty dollars ($50.00) for each violation.

(3)  In addition, pursuant to a probation order for any second or subsequent violation of subsection (b), the court may require an individual to:

1. Perform not more than sixteen (16) hours of community service in a hospice, nursing home, or long-term care facility for a first offense violation, thirty-two (32) hours of community service for a second offense violation, and forty-eight (48) hours of community service for a third or subsequent offense violation.
2. Participate in a health promotion and risk reduction program.
3. Pay any costs or fees related to participation in a health promotion and risk reduction program ordered by the court.

(d)  Subsection (b) does not apply to a minor participating in any of the following:

(1)  An undercover operation in which the minor purchases or receives a tobacco product or vapor product under the direction of the minor’s employer and with the prior approval of the local prosecutor’s office as part of an employer sponsored internal enforcement action.

(2)  An undercover operation in which the minor purchases or receives a tobacco product or vapor product under the direction of the state police or a local police agency as part of an enforcement action, unless the initial or contemporaneous purchase or receipt of the tobacco product or vapor product by the minor was not under the direction of the state police or the local police agency and was not part of the undercover operation.

(3)  Compliance checks in which the minor attempts to purchase tobacco products for the purpose of satisfying federal substance abuse block grant youth tobacco access requirements, if the compliance checks are conducted under the direction of a substance abuse coordinating agency as defined in the Public Health code, 1978 PA 368, MCL 333.6103, and with the prior approval of the state police or a local police agency.

(e)  Subsection (b) does not apply to the handling or transportation of a tobacco product or vapor product by a minor under the terms of that minor’s employment.

(f)  Sales of individual cigarettes.

(1)  Except as otherwise provided in (2) of this subsection, a person who sells tobacco products at retail shall not sell a cigarette separately from its package.

(2)  (1) above, does not apply to a person who sells tobacco products at retail in a tobacco specialty retail store or other retail store that deals exclusively in the sale of tobacco products and smoking paraphernalia.

(3)  A person who violates (1) above of this subsection is guilty of a misdemeanor, punishable by a fine of not more than five hundred dollars ($500.00) for each offense.

(g)  Furnishing to minors.

(1)  A person shall not sell, give or furnish a tobacco product or vapor product to a minor, including, but not limited to, through a vending machine. A person who violates this subsection or (8) of this subsection is guilty of a misdemeanor punishable by a fine of not more than fifty dollars ($50.00) for each violation.

(2)  A person who sells tobacco products or vapor products at retail shall post, in a place close to the point of sale and conspicuous to both employees and customers, a sign that includes the following statement:

“The purchase of a tobacco product or vapor product by a minor under 18 years of age and the provision of a tobacco product or vapor product to a minor are prohibited by law. A minor who unlawfully purchases or uses a tobacco product or vapor product is subject to criminal penalties. “

(3)  If the sign required under (2) above, is more than six (6) feet from the point of sale, it shall be five and one-half (5 1/2) inches by eight and one-half (8 1/2) inches and the statement required under (2) above shall be printed in 36point bold-faced type. If the sign required under (2) is six (6) feet or less from the point of sale, it shall be two (2″) inches by four (4) inches and the statement required under (2) above shall be printed in 20-point bold-faced type.

(4)  The signs required by (2) above, may be procured from the department of community health pursuant to state law. The seller may add the “vapor product” language to the sign if the department of community health does not or will not include it.

(5)  It is an affirmative defense to a charge under (1) above of this subsection, that the defendant had in force at the time of arrest and continues to have in force, a written policy to prevent the sale of tobacco products and vapor products to persons under eighteen (18) years of age and that the defendant enforced and continues to enforce the policy, A defendant who proposes to offer evidence of the affirmative defense described in this subsection shall file and serve notice of the defense, in writing, with the court and serve a copy of the notice on the Township attorney. The defendant shall serve the notice not less than fourteen (14) days before the date set for trial.

(6)  If the Township attorney proposes to offer testimony to rebut the affirmative defense described in (5) above, the Township attorney shall file a notice of rebuttal, in writing, with the court and serve a copy of the notice on the defendant.  The Township attorney shall serve the notice not less than seven (7) days before the date set for trial and shall include in the notice the name and address of each rebuttal witness.

(7)    (1) of this subsection does not apply to the handling or transportation of a tobacco product or vapor product by a minor under the terms of the minor’s employment.

(8)  Before selling, offering for sale, giving, or furnishing a vapor product to an individual, a person shall verify that the individual is at least eighteen (18) years of age by doing one (1) of the following:

1. If the individual appears to be under twenty-seven (27) years of age, examining a government-issued photographic identification that establishes that the individual is at least eighteen (18) years of age.
2. For sales made by the internet or other remote sales method, performing an age verification through an independent, third-party age verification service that compares available from a commercially available database, or aggregate of databases, that are regularly used by government agencies and businesses for the purpose of age and identity verification to the personal information entered by the individual during the ordering process that establishes that the individual is eighteen (18) years of age or older.

This Section does not prohibit an individual from being charged with, convicted of or found responsible for, or sentenced for any other violation of Township Ordinances that arises out of the violation of this Section. Nothing in this Ordinance shall be construed to limit the remedies available to the Township in the event of a violation of this Ordinance.

State Law reference— MCL 722.641 et seq.

 

Section 3. BALANCE OF ORDINANCE REMAINS IN EFFECT.

Chapter 30 Article VIII of the Independence Code of Ordinances is hereby affirmed and remains in full force and effect, except as specifically modified herein.

Section 4. SEVERABILITY.

If any subsection, clause, phrase or portions of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent portion of this ordinance and such holding shall not affect the validity of the remaining portions of this ordinance.

Section 5. SAVINGS.

All proceedings pending and all rights and liabilities existing, acquired or incurred at the time this Ordinance takes effect, are saved and may be consummated according to the law in force when they were commenced.

Section 6. REPEALER.

All ordinances or parts of ordinances or Sections of the Charter Township of Independence Code of Ordinances in conflict with this Ordinance are repealed only to the extent necessary to give this Ordinance full force and effect.

Section 7. EFFECTIVE DATE.

This Ordinance shall be effective upon publication in the manner prescribed by law.

Section 8. ENACTMENT.

This Ordinance is declared to have been enacted by the Township Board of Trustees of the Charter Township of Independence at a meeting called and held on ____________, 2019, and ordered to be given publication in the manner prescribed by law.

Ayes:

Nays:

Abstentions:  None

Absent:  None

STATE OF MICHIGAN                )

) ss.

COUNTY OF OAKLAND              )

I, the undersigned, the qualified and acting Township Clerk of the Charter Township of Independence, Oakland County, Michigan, do certify that the foregoing is a true and complete copy of the Ordinance adopted by the Board of Trustees of the Charter Township of Independence at a meeting held on Month XX, 2019, the original of which is on file in my office.

CHARTER TOWNSHIP OF INDEPENDENCE

By: Barbara A. Pallotta, Clerk

Introduced: February 5, 2019

Published:  February 13, 2019

Adopted:

Published:

Effective: