7-6 TOBACCO RETAILING, ADVERTISING, PROMOTION AND LICENSING.

The following words and phrases, whenever used in this Section 7-6, shall be construed as defined herein: Advertising display sign means any sign, billboard, signboard, poster, placard, pennant, banner, graphic display, mural, or similar device that is used to advertise or promote a product.

Characterizing flavor means a distinguishable taste or aroma imparted by a tobacco product or any byproduct produced by the tobacco product that is perceivable by an ordinary consumer by either the sense of taste or smell, other than the taste or aroma of tobacco. A “characterizing flavor” includes, but is not limited to, a taste or aroma relating to a fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice.

Electronic smoking device shall mean an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances. An “electronic smoking device” includes a device that is manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, a vape pen, or a vapor pen.

E-liquid means any substance that is intended to be consumed in aerosolized or vaporized form using an electronic smoking device, regardless of the nicotine content of the substance.

Flavored tobacco product means any tobacco product, other than cigarettes as defined by federal law, that contains a constituent that imparts a characterizing flavor. A tobacco product whose labeling or packaging contains text or an image indicating that the product imparts a characterizing flavor is presumed to be a flavored tobacco product.

Mobile billboard means any sign, billboard, signboard, poster, placard or other advertising display upon or affixed to a vehicle which display is used to advertise a product illegal to sell to minors, when the supporting vehicle or trailer is parked within a public right-of-way or on private property and visible to the public for a duration of time and in a manner which clearly indicted that the sign is for advertising products illegal to sell to minors or which carry a specific brand name, logo, or indicia of a product illegal to sell to minors. For the purpose of this section, a mobile billboard shall not include any advertisements on the side of a van, truck, or other vehicle which is primarily used for the transportation of goods or products.

Person means any individual, firm, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or other legal entity.

Promote or promotion means a display of any logo, brand name, character, graphic, artwork, colors, scenes, or designs that are a recognized image of a particular product brand of tobacco that calls the public’s attention to the product brand.

Publicly visible location means any outdoor location that is visible from any street, sidewalk, or other public thoroughfare, or any location inside a commercial establishment that is in or immediately adjacent to a window or doorway and is visible from any street, sidewalk, or other public thoroughfare.

Smoking paraphernalia shall mean cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the consumption or preparation of tobacco or cannabis products; electronic smoking devices and items specifically designed for the preparation, charging, or use of electronic smoking devices including cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, electronic smoking device batteries, electronic smoking device chargers, and any other electronic smoking device paraphernalia. Tobacco product means any of the following:

1. Any product containing, made from, derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, and snuff, including flavored tobacco products.

2. Any electronic smoking device.

3. Any component, part, or accessory of a tobacco product, whether or not it is sold separately.

4. “Tobacco product” does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for that approved purpose.

Tobacco retailer means any person or entity that sells tobacco, tobacco products, electronic smoking devices, smoking paraphernalia, or any combination thereof, including retail or wholesale sales. “Tobacco retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products or smoking paraphernalia sold, offered for sale, exchanged, or offered for exchange.

Town Manager means the Town Manager for the Town of Danville or his or her designee.

• (Ord. 99-6, §3: Ord. 2020-01, § 2)

No person shall place or maintain, or cause or allow to be placed or maintained, in any manner, any advertising or promotion of any tobacco products, including flavored tobacco products, on an advertising display sign in a publicly visible location within one thousand six hundred (1,600) feet of the perimeter of an elementary or secondary school, public park or public playground. (Ord. 99-6, §3: Ord. 2020-01, § 2)

7-6.3 Exceptions.

The restrictions contained in subsection 7-6.2 shall not apply to advertising or promotions for tobacco products: a. Located inside a commercial establishment, unless such advertising display sign or promotion is attached to, affixed to, leaning against, or otherwise in contact with any window or door in such a manner that it is visible from a street, sidewalk or other public thoroughfare;

• b. On vehicles, other than mobile billboards;

c. On any sign located inside or immediately outside a commercial establishment if the sign provides notice that the establishment sells tobacco products, so long as the sign does not promote any brand of tobacco product; d. On tobacco product packaging.

• (Ord. 99-6, §3)

No person may market, license, distribute, sell or cause to be marketed licensed, distributed or sold any item or service to any person under the age of 21, which bears the brand name, alone or in conjunction with, any other word, logo, symbol, motto, selling message, recognizable color or pattern of colors, or any other indicia or product identification identical with, or similar to, or identifiable with, those used for any brand of tobacco product, including flavored tobacco products. (Ord. 99-6, §3: Ord. 2020-01, § 2)

It is unlawful for any person to sell, permit to be sold, offer for sale, or display for sale, any tobacco product, including flavored tobacco products, by means of self-service display, rack, counter top or shelf that allows selfservice sales for any tobacco product other than vendor-assisted sales. (Ord. 99-6, §3: Ord. 2020-01, § 2)

All tobacco products, including flavored tobacco products, shall be offered for sale exclusively by means of vendor assistance, with tobacco products kept in a locked case or in an area not accessible to the public, and requiring employee assistance to retrieve the tobacco products. (Ord. 99-6, §3: Ord. 2020-01, § 2)

It is unlawful for any person to sell or offer for sale any tobacco product without first obtaining and maintaining a valid tobacco retailer license for each location where such sales are conducted. This license shall be renewed annually. (Ord. 99-6, §3)

A person who is required to obtain a tobacco retailer license pursuant to this Section 7-6 shall submit an application in the name of the person and shall be signed by the person with authority to act on behalf of the applicant. All applications shall be submitted on a form supplied by the Town and shall contain the following information:

• a. The name, address and telephone number of the business owner and manager;

• b. The business name, address and telephone number of each establishment where tobacco products are to be sold;

• c. Such other information as the Town Manager determines is necessary to accomplish the purposes of this chapter. (Ord. 99-6, §3)

Upon receipt of a completed application for a tobacco retailer license, including payment of the license fee, and the completion of an inspection of the premises, if deemed necessary by the Town Manager, to determine compliance with this Section 7-6, the Town Manager shall issue a license. Each licensee shall prominently display the license at the location where tobacco product sales are conducted. (Ord. 99-6, §3)

The fee for a tobacco retailer license shall be set by the Town Council as part of the Town’s master fee schedule. The amount of any such fee shall be limited to the Town’s costs for processing the application, inspecting the tobacco retailer business premises to determine compliance with the standards contained in this Section 7-6 and implementing the licensing program. (Ord. 99-6, §3)

A tobacco retailer license is not transferable. If there is a change in location, a new tobacco retailer license shall be issued for the new address upon receipt of an application for a change of location. The new license shall retain the same expiration date as the previous license. (Ord. 99-6, §3)

a. A tobacco retailer license may be suspended by the Town Manager upon a finding, after notice and hearing, that a violation of this Section 7-6, or any other applicable State or Federal law governing the sale and distribution of tobacco, has occurred at the licensee’s business premises.

b. The Town Manager may suspend the licensee’s license to sell tobacco products for up to sixty (60) days following the first finding of a violation. In the event of a finding of a second violation within twelve (12) months of the first violation, the Town Manager may suspend the license for up to one hundred twenty (120) days. In the event of a finding of a third violation within twelve (12) months of the first violation, the Town Manager may suspend the license for up to one (1) year.

c. Any finding of violation and suspension of a license by the Town Manager may be appealed to the Town Council. Such appeal must be filed in writing within ten (10) days of receipt of the Town Manager’s decision and must be accompanied by the applicable appeal fee established by the Town Council in the Town’s master fee schedule. (Ord. 99-6, §3)

Except as otherwise provided, this Section 7-6 shall be administered by the Town Manager, who may develop administrative guidelines and procedures to implement the provisions of this section. (Ord. 99-6, §3)

a. Any person violating any provision of this Section 7-6 shall be guilty of an infraction and shall be subject to penalties as set by state law.

b. Violations of this Section 7-6 shall be deemed a public nuisance.

(Ord. 99-6, §3: Ord. 2020-01, § 2)

Nothing in this Section 7-6 is intended to alter the obligations or restrictions which apply to any person under any other law governing signs, tobacco advertising or any other matter covered by this Section 7-6. The remedies set forth in this Section 7-6 are not exclusive. If any action prohibited by this Section 7-6 is also unlawful under any other law, the penalties and remedies under such other law may be pursued in addition to those provided in this section. (Ord. 996, §3)

The restrictions contained in this Section 7-6 with respect to the advertising, promotion and display of tobacco products are adopted by the Town of Danville to promote the general welfare of the Town’s residents. The Town does not assume, nor is it imposing on its officers or employees, an obligation for which it may be liable in money damages to any person who claims that breach of those restrictions proximately caused injury. (Ord. 99-6, §3)

No tobacco retailer may sell, offer for sale, or exchange or offer to exchange for any form of consideration, to a consumer any electronic smoking devices or e-liquid where the electronic smoking device or e-liquid:

• a. Is a new tobacco product as defined in § 387j(a)(1) of Title 21 of the U.S. Code;

• b. Requires premarket review under Section 387j of Title 21 of the U.S. Code; and

• c. Does not have a premarket review order issued under Section 387(j)(c)(1)(A)(i) of Title 21 of the U.S. Code.

• (Ord. 2020-01, § 2)