PLACEMENT: Public Hearings
TITLE:
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PUBLIC HEARING TO CONSIDER ADOPTION OF AN ORDINANCE AMENDING ARTICLE 6 RELATING TO TOBACCO PRODUCTS AND ARTICLE 7 RELATING TO ELECTRONIC NICOTINE DELIVERY DEVICES, CHAPTER 87, GENERAL ORDINANCES, MARTIN COUNTY CODE
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EXECUTIVE SUMMARY:
executive summary
On December 20, 2019, President Trump signed legislation to raise the federal minimum age for the purchase of tobacco products from 18 to 21. The proposed ordinance brings Martin County into compliance with existing federal law by raising the minimum age to purchase tobacco products to 21. The amendment also creates a Tobacco Distribution License (TDL) which all tobacco retailers will have to obtain in order to sell tobacco products within unincorporated Martin County. Retailers that violate the ordinance by selling to underaged persons will be penalized with a monetary fine and the suspension of their license.
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DEPARTMENT: County Attorney
PREPARED BY: Name: Elysse A. Elder
Title: Senior Assistant County Attorney
REQUESTED BY: Commissioner Hetherington
PRESET: 10:30 AM
PROCEDURES: None
BACKGROUND/RELATED STRATEGIC GOAL:
On December 20, 2019, President Trump signed legislation to amend the Federal Food, Drug and Cosmetic Act to raise the federal minimum age for the purchase of tobacco products from 18 to 21. This created inconsistencies with many state laws that establish 18 as the minimum age for the purchase of tobacco products, including Florida. Nonetheless, the federal law supersedes any conflicting state law for the purchase of tobacco products. As a result, it is illegal for a retailer to sell any tobacco products, which includes cigarettes, cigars, vapor-generating electronic devices and many other products and components, to anyone under 21 years of age in the United States. The Florida Legislature approved Senate Bill (SB) 810 in the 2020 legislative session. SB 810 raised the minimum age for the sale of tobacco products to 21 in Florida. In addition, the bill added vapor-generating electronic devices and its components in the definition of tobacco products and limited the sale of certain flavored liquid nicotine products. On September 8, 2020, Governor DeSantis vetoed SB 810. As a result, Florida law still remains the same and is inconsistent with federal law for the minimum age for the purchase of tobacco products.
Currently, Article 6, Chapter 87, General Ordinances, Martin County Code establishes 18 as the minimum age for the purchase of tobacco products in Martin County and provides limited restrictions on the sale of tobacco products. Article 7, Chapter 87, General Ordinances provides limits on the sale of vapor-generating electronic delivery devices and prohibits the use of vapor-generating devices as provided in Florida Statutes Chapter 386 or within 50 feet thereof and at County parks.
The proposed Ordinance amends both Article 6, pertaining to tobacco products and Article 7 pertaining to electronic nicotine delivery devices.
Below is a summary of the changes to Article 6:
• The title of Article 6 will be changed to “Prohibition of Sale or Distribution of Tobacco Products to Persons Under 21 Years of Age.”
• The minimum age to purchase tobacco products is raised from 18 to 21 for consistency with federal law.
• The definition of tobacco products is significantly expanded and includes vapor-generating electronic delivery devices.
• Tobacco retailers in unincorporated Martin County will have to obtain a TDL in order to sell tobacco products.
• The Tax Collector’s Office will issue TDLs, which must be renewed annually by September 30th.
• The Board establishes the fees for TDLs by Resolution. The proposed Resolution establishes the fee to obtain and renew a TDL at $300. At the request of the Tax Collector to be consistent with late fees for Business Tax Receipts, the Resolution also establishes late fees as follows:
o 10% late fee for licenses not renewed by October 1
o 15% late fee for licenses not renewed by November 1
o 20% late fee for licenses not renewed by December 1
o 25% late fee for licenses not renewed by January 1
o $200 late fee for any licenses renewed after January 1
• The Martin County Sheriff’s Office will enforce the ordinance and will issue citations to violators.
• Tobacco retailers will be penalized if they sell any tobacco products to anyone under the age of 21. The penalties for violating the ordinance are as follows:
o 1st Violation: 7-day license suspension and $100 fine.
o 2nd Violation: 30-day license suspension and $250 fine.
o 3rd Violation: 90-day license suspension and $500 fine.
o 4th Violation: Revocation of license with no option to review and $500 fine.
• Any money collected for licenses or penalties under Article 6 and Article 7 will be put into a trust, entitled the Prevention of Underaged Tobacco Use Trust Fund, which will be administered by the Clerk of the Circuit Court and Comptroller. The money in the fund will be used for administrative costs of the licensing component and to financially assist tobacco use prevention programs in schools.
Florida Statutes Section 386.209 preempts the regulation of smoking to the State of Florida. As a result, the County is unable regulate where smoking is prohibited. However, Section 386.209 specifically does not preclude local governments from adopting more restrictive regulations for the use of vapor-generating electronic devices. Article 7 is the County’s regulation on the use of vapor-generating electronic devices. Below is a summary of the changes to Article 7:
• The title of Article 7 is being changed to Prohibition on Use of Vapor-Generating Electronic Devices.
• All provisions of Article 7, except the use of vapor-generating electronic devices as provided in Chapter 386, within 50 feet thereof and at County parks, have been eliminated because they are captured in Article 6 based on the inclusion of vapor-generating electronic devices in definition of tobacco products.
The proposed effective date of the Ordinance is February 1, 2021. This provides sufficient time for the Tax Collector’s Office to accommodate the administration of issuing the license and for the County to educate tobacco retailers about the new licensing requirement.
ISSUES:
None
LEGAL SUFFICIENCY REVIEW:
This is a legislative matter. Legislative decisions are those in which the local government formulates policy rather than applying specific rules to a particular situation. A local government’s approval or denial of an issue in its legislative capacity is typically subject to a fairly debatable standard of review. Fairly debatable means that the government’s action must be upheld if reasonable minds could differ as to the propriety of the decision reached. Decisions subject to the fairly debatable standard of review need only be rationally related to a legitimate public purpose, such as the health, safety, and welfare of the public, to be valid. Given this broad discretion, only decisions that arbitrary and capricious or illegal are subject to serious legal challenge.
RECOMMENDED ACTION:
RECOMMENDATION
The Board consider implementing the TDL program and amending the existing tobacco ordinance. If the Board decides to implement the program: Move that the Board approve the proposed Ordinance amending Articles 6 and 7, Chapter 87, General Ordinances, Martin County Code and the Resolution establishing TDL fees.
ALTERNATIVE RECOMMENDATIONS
Provide staff with further direction.
FISCAL IMPACT:
RECOMMENDATION
None
ALTERNATIVE RECOMMENDATIONS
DOCUMENT(S) REQUIRING ACTION:
☐Budget Transfer / Amendment ☐ Chair Letter ☐Contract / Agreement
☐Grant / Application ☐Notice ☒Ordinance ☒Resolution
☐Other:
This document may be reproduced upon request in an alternative format by contacting the County ADA Coordinator (772) 320-3131, the County Administration Office (772) 288-5400, Florida Relay 711, or by completing our accessibility feedback form at www.martin.fl.us/accessibility-feedback <http://www.martin.fl.us/accessibility-feedback>.