Ordinance No. 12,519ORDINANCE NO. 12,519
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AMENDING CHAPTER 42 "HEALTH AND SANITATION,"
ARTICLE III "SMOKING," SECTION 42-96 "DEFINITIONS" OF THE CODE
OF ORDINANCES, BAYTOWN, TEXAS; AMENDING CHAPTER 42
"HEALTH AND SANITATION," ARTICLE III "SMOKING," TO ADD
SECTION 42-111 "POSSESSION OF ELECTRONIC CIGARETTES, E -
CIGARETTES OR LIQUID NICOTINE BY A MINOR"; SECTION 42-112
"SALE OF ELECTRONIC CIGARETTES, E -CIGARETTES, OR LIQUID
NICOTINE TO A MINOR"; SECTION 42-113 "VENDOR ASSISTED SALES
REQUIRED; SELF-SERVICE MERCHANDISING PROHIBITED"; TO
PROHIBIT THE POSSESSION AND PURCHASE OF ELECTRONIC
CIGARETTES, E -CIGARETTES, AND LIQUID NICOTINE BY MINORS; TO
PROHIBIT THE SALE OF ELECTRONIC CIGARETTES, E -CIGARETTES,
AND LIQUID NICOTINE TO MINORS; AND TO PROHIBIT SELF-SERVICE
MERCHANDISING OF ELECTRONIC CIGARETTES, E -CIGARETTES, AND
LIQUID NICOTINE; PROVIDING A REPEALING CLAUSE; CONTAINING
A SAVINGS CLAUSE; PRESCRIBING A CRIMINAL PENALTY; AND
PROVIDING FOR THE PUBLICATION AND EFFECTIVE DATE THEREOF.
WHEREAS, according to the United States Food & Drug Administration, electronic
cigarette products turn highly addictive nicotine from a liquid into a vapor that is inhaled by the
user; and
WHEREAS, according to the United States Food & Drug Administration, electronic
cigarette products are marketed to young people through the availability of different flavors, such
as chocolate and mint; and
WHEREAS, according to the United States Food & Drug Administration, vapor emitted
by electronic cigarette products do contain carcinogens and toxic chemicals such as diethylene
glycol, an ingredient used in antifreeze, yet the products' packaging does not contain any health
warnings; and
WHEREAS, according to the World Health Organization, the safety of electronic
cigarette products and the vapor produced by such products has not been scientifically
demonstrated, that e -cigarette products vary widely in the amount of nicotine and other
chemicals they deliver, and consumers are without resources to determine what chemicals are
actually delivered by e -cigarettes; NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That all matters and facts set forth in the recitals hereinabove are found to
be true and such recitals are hereby approved and made a part of this Ordinance for all purposes
and are adopted as a part of the judgment and findings by the City Council of the City of
Baytown, Texas.
Section 2: That Chapter 42 "Health and Sanitation," Article III "Smoking," Section
42-96 "Definitions" of the Code of Ordinances, Baytown, Texas, is hereby amended to amend
the definition of "smoking"; to repeal the definition of "retail tobacco store"; and to add
definitions of "electronic cigarette or e -cigarette," "liquid nicotine," "minor," "open display
unit," "possess, possessing or possession," "retail tobacco store," and "self-service
merchandising," which definitions shall read as follows:
CHAPTER 42. HEALTH AND SANITATION
ARTICLE III. SMOKING
Sec. 42-96. Definitions.
The following words, terms and phrases, when used in this article, shall have the
meanings ascribed to them in this section, except where the context clearly indicates a different
meaning:
Electronic cigarette or e -cigarette means any electronically powered or battery -powered
device that provides, or is manufactured or intended to provide, a vapor of liquid nicotine and/or
other substances mixed with propylene glycol and/or other substances delivered or deliverable to
the user to simulate the smoking of tobacco, cigarettes, pipes or cigars. This term shall include
every version and type of such device whether manufactured or marketed as electronic cigarettes,
e -cigarettes, electronic cigars, e -cigars, electronic pipes, a -pipes or under any other product name
or description.
Liquid nicotine as used herein shall mean 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 electronic cigarettes or e -cigarettes.
Minor as used herein means a person younger than eighteen (18) years of age.
Open display unit as used herein shall mean, in the context of the retail sale of electronic
cigarettes, e -cigarettes or liquid nicotine, any device, furniture or furnishing within or upon
which electronic cigarettes, e -cigarettes or liquid nicotine are displayed to customers, and
includes, but is not limited to, any case, rack, shelf, counter, table, desk, kiosk, booth, stand,
vending machine and other surface.
Possess, possessing or possession means actual care, custody, control or management.
Self-service merchandising means, in the context of the retail sale of electronic cigarettes,
e -cigarettes or liquid nicotine, the open display, including, without limitation, the use of an
open display unit of electronic cigarettes, e -cigarettes or liquid nicotine, whether packaged or
otherwise, for direct retail customer access and handling prior to purchase without the
intervention of assistance of the retailer or the retailer's owner, employee or agent.
Section 3: That Chapter 42 "Health and Sanitation," Article III "Smoking," of the
Code of Ordinances, Baytown, Texas, is hereby amended to add a new section to be numbered
and entitled Section 42-111 "Possession of electronic cigarettes, e -cigarettes or liquid nicotine by
a minor," which section shall read as follows:
CHAPTER 42. HEALTH AND SANITATION
ARTICLE III. SMOKING
Sec. 42-111. Possession of electronic cigarettes, e -cigarettes or liquid nicotine by a minor.
(a) Offenses. A minor commits an offense if the minor:
(1) possesses, purchases, consumes or accepts an electronic cigarette, e -cigarette, or
liquid nicotine; or
(2) falsely represents himself or herself to be 18 years of age or older by displaying
proof of age that is false, fraudulent, or not actually proof of the individual's own
age in order to obtain possession of, purchase, or receive an electronic cigarette,
e -cigarette, or liquid nicotine.
(b) Defenses.
(1) It shall be a defense to prosecution of a violation of this section if the minor
possessed the electronic cigarette, e -cigarette or liquid nicotine in the presence of:
a. An employer of the minor, if possession or receipt of the electronic
cigarette, e -cigarette or liquid nicotine is required in the performance of
the employee's duties as an employee; or
b. an adult parent, a guardian, or a spouse of the minor.
(2) It shall be a defense to prosecution of a violation of this section if the minor was
participating in an inspection or test of compliance in conjunction with local law
enforcement.
(c) Penalties. An offense under this section is punishable by a fine not to exceed $250.
Each act of violation and each day upon which any such violation shall occur shall
constitute a separate offense.
(d) Enforcement. This section shall be enforced by the chief of police.
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Section 4: That Chapter 42 "Health and Sanitation," Article III "Smoking," of the
Code of Ordinances, Baytown, Texas, is hereby amended to add a new section to be numbered
and entitled Section 42-112 "Sale of electronic cigarettes, e -cigarettes or liquid nicotine by a
minor," which section shall read as follows:
CHAPTER 42. HEALTH AND SANITATION
ARTICLE III. SMOKING
Sec. 42-112. Sale of electronic cigarettes, e -cigarettes, or liquid nicotine to a minor.
(a) Offense. A person commits an offense if the person, with criminal negligence:
(1) sells, gives, or causes to be sold or given an electronic cigarette, e -cigarette, or
liquid nicotine to a minor; or
(2) sells, gives, or causes to be sold or given an electronic cigarette, e -cigarette, or
liquid nicotine to another person who intends to deliver it to someone who is a
minor.
(b) Responsibility. If an offense under this section occurs in connection with a sale by an
employee of the owner of a store in which electronic cigarettes, e -cigarettes, or liquid
nicotine are sold at retail, the employee is criminally responsible for the offense and is
subject to prosecution.
(c) Defense. It is a defense to prosecution under Subsection (a)(1) that the person to whom
the electronic cigarette, e -cigarette, or liquid nicotine was sold or given presented to the
defendant apparently valid proof of identification.
(d) Proof of identification. A proof of identification satisfies the requirements of Subsection
(c) if it contains a physical description and photograph consistent with the person's
appearance, purports to establish that the person is 18 years of age or older, and was
issued by a governmental agency. The proof of identification may include a driver's
license issued by this state or another state, a passport, or an identification card issued by
a state or the federal government.
(e) Penalties.
(1) If an offense under this section occurs in connection with a sale of a tobacco
product or e -cigarette to a minor by a person who owns, manages, operates, or
otherwise controls a public place or place of employment in violation of this
section, that person shall be guilty of an offense, punishable by:
a. A fine not exceeding $100.00 for a first violation;
b. A fine not exceeding $200.00 for a second violation within a period of 12
consecutive months; or
C. A fine not exceeding $500.00 for each additional violation within a period
of 12 consecutive months.
Each act of violation and each day upon which any such violation shall occur
shall constitute a separate offense.
(2) A person who violates this section not in connection with ownership,
management, operation, or other control of a public place or place of employment
shall be guilty of an offense, punishable by a fine as provided in section 1-14 of
this Code.
(f) Public nuisance. Violation of this section is hereby declared to be a public nuisance,
which may be abated by the director of health by restraining order, preliminary and
permanent injunction, or other means provided for by law, and the city may take action to
recover the costs of the nuisance abatement.
(g) Enforcement. This section shall be enforced by the chief of police.
Section 5: That Chapter 42 "Health and Sanitation," Article III "Smoking," of the
Code of Ordinances, Baytown, Texas, is hereby amended to add a new section to be numbered
and entitled Section 42-113 "Vendor assisted sales required; self-service merchandising
prohibited," which section shall read as follows:
CHAPTER 42. HEALTH AND SANITATION
ARTICLE III. SMOKING
Sec. 42-113. Vendor assisted sales required; self-service merchandising prohibited.
(a) Offenses. Except as provided by Subsection (b), a retailer or other person may not:
(1) offer electronic cigarettes, e -cigarettes or liquid nicotine for sale in a manner that
permits a customer direct access to the electronic cigarettes, e -cigarettes or liquid
nicotine;
(2) offer for sale or display for sale electronic cigarettes, e -cigarettes or liquid
nicotine by means of self-service merchandising; or
(3) Install or maintain an open display unit containing electronic cigarettes, e -
cigarettes or liquid nicotine.
(b) Defenses. It is a defense to prosecution under subsection (a) if:
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(1) A facility or business is not open to minors at any time;
(2) A facility or business is a premises for which a person holds a package store
permit issued under the Alcoholic Beverage Code; or
(3) An open display unit is located in an area that is inaccessible to customers.
(c) Public nuisance. Violation of this section is hereby declared to be a public nuisance,
which may be abated by the director of health by restraining order, preliminary and
permanent injunction, or other means provided for by law, and the city may take action to
recover the costs of the nuisance abatement.
(h) Enforcement. This section shall be enforced by the chief of police.
Section 5: Unless provided elsewhere in this ordinance, any person who fails to
comply with any provision of this ordinance shall be guilty of a misdemeanor and, upon
conviction, shall be punished by a fine not exceeding TWO THOUSAND AND NO/100
DOLLARS ($2,000.00). Each act of violation and each day upon which any such violation shall
occur shall constitute a separate offense. In addition to the penalty prescribed above, the city may
pursue other remedies such as abatement of nuisances, injunctive relief, administrative
adjudication and revocation of licenses or permits.
Section 6: All ordinances or parts of ordinances inconsistent with the terms of this
ordinance are hereby repealed; provided, however, that such repeal shall be only to the extent of
such inconsistency and in all other respects this ordinance shall be cumulative of other
ordinances regulating and governing the subject matter covered by this ordinance.
Section 7: If any provision, section, exception, subsection, paragraph, sentence,
clause or phrase of this ordinance or the application of same to any person or set of
circumstances, shall for any reason be held unconstitutional, void or invalid, such invalidity shall
not affect the validity of the remaining provisions of this ordinance or their application to other
persons or sets of circumstances and to this end all provisions of this ordinance are declared to be
severable.
Section 8: This ordinance shall take effect from and after ten (10) days from its
passage by the City Council. The City Clerk is hereby directed to give notice hereof by causing
the caption of this ordinance to be published in the official newspaper gY�the City of Baytown at
least twice within ten (10) days after passage of this ordinance. 7
INTRODUCED, READ and PASSED by the affirmativ ofe of the City Council of the
City of Baytown, this the 10th day of April, 2014.
H. DONCARLOS, Mayor
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ATTEST: O �y go
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LETICIA BRYSCH, Ci erk
APPROVED AS TO FORM:
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*AOCIMA'DMIREZ, SR., Ci ttorney
R:\Karen\Files\City Counc&Ordinances\2014\April 10\Proposed Youth Smoking Ordinance - Youth only.docx