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| ORDINANCE NO. 2001-20
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PALM BEACH COUNTY, FLORIDA, PROHIBITING SELF-SERVICE DISPLAY AND
PLACEMENT OF TOBACCO PRODUCTS; PROVIDING FOR RECITALS; PROVIDING FOR TITLE; PROVIDING FOR INTENT; PROVIDING FOR DEFINITIONS; PROVIDING FOR
EXCEPTION; PROVIDING FOR APPLICABILITY; PROVIDING FOR ENFORCEMENT AND PENALTIES; PROVIDING FOR REPEAL OF LAWS IN CONFLICT; PROVIDING FOR
SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE. |
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| WHEREAS, the Florida Legislature has enacted laws, located in Chapter
569, Florida Statutes, that provide for increased regulation of
the retail sale of tobacco products; and |
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| WHEREAS, within Chapter 569, Florida Statutes, the Florida Legislature
has provided for civil, administrative, and/or criminal penalties for the
sale of tobacco products to a person under the age of 18 and for the
possession of such tobacco products by a person under the age of 18; and |
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| WHEREAS, the State of Florida has entered into a settlement agreement
with the tobacco industry for billions of dollars to reimburse the State
due to the prevalence of tobacco use; and |
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| WHEREAS, the settlement agreement between the State of Florida and the
tobacco industry provides for a pilot program which is aimed specifically
at the reduction of the use of tobacco products by persons under the age
of 18; and |
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| WHEREAS, the U.S. Department of Health and Human Services
has determined that every day 3,000 children become
smokers and a third of them,
eventually, will die from smoking-related illnesses. Smoking is
this nation's leading preventable cause of death and
kills more than 430,000 people a year; and |
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| WHEREAS, surveys conducted by Students Working Against Tobacco in 1999
and 2000 of forty-three stores in Palm Beach County revealed that 79
percent have tobacco products located on, in front of and/or beside the
counter and 21 percent have tobacco products located directly next to
entrance ways; and/td> |
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| WHEREAS, Chapter 569, Florida Statutes, does not prohibit local
governments from regulating the placement of tobacco products; and |
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| WHEREAS, the United States Supreme Court has held in Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186,
71 L.Ed.2d 362 (1981), that ordinances that regulate the commercial
marketing and display of items that may be used for illegal purposes does
not violate the First Amendment; and |
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| WHEREAS, the Board of County Commissioners of Palm Beach County,
Florida, along with the citizens of Palm Beach County are concerned about
the use of tobacco products by persons under the age of 18; and |
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| WHEREAS, the Board of County Commissioners of Palm Beach County,
Florida, believes that a reduction in the availability, both visually and
physically, of tobacco products to persons under the age of 18 will likely
lead to a reduction in tobacco product use by that age group; and |
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| WHEREAS, the Board of County Commissioners of Palm Beach County,
Florida, finds that the regulation of tobacco product placement will
reduce the availability and desirability of tobacco products to persons
under the age of eighteen (18); and |
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| WHEREAS, the Board of County Commissioners of Palm Beach County, Florida, finds that such regulation is
in the best interest of the public health, safety and welfare. |
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| NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF PALM
BEACH COUNTY, FLORIDA, that: |
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| SECTION 1. RECITALS. |
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| The foregoing recitals are true and correct and incorporated herein by reference. |
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| SECTION 2. TITLE. |
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| This Ordinance shall be known and cited as the Palm Beach County Tobacco Product Placement Ordinance. |
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| SECTION 3. INTENT. |
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| This Ordinance is intended to prevent the sale to and
possession of tobacco products by persons under the age of 18 by
regulating the placement of such products. This Ordinance shall not be
interpreted or construed to prohibit the sale or delivery of tobacco
products which are otherwise lawful or regulated pursuant to Chapter 569,
Florida Statutes. |
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| SECTION 4. DEFINITIONS. |
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| For the purpose of this Ordinance the following terms shall mean: |
| (a) Business means any sole proprietorship, joint venture, corporation or other
business formed for profit making or non- profit purposes, including
retail establishments where goods or services are sold. |
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| (b) Person means any individual, partnership, cooperative association, private corporation,
personal representative, receiver, trustee, assignee or other legal
entity. |
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| (c) Self-service display or placement means the open display or
placement of tobacco products to which the public has access without the
intervention of the vendor, store owner or other store employee. |
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| (d) Tobacco products includes loose tobacco leaves, and products made from
tobacco leaves, in whole or in part, and cigarette wrappers, which can be
used for smoking, sniffing or chewing. |
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| (e) Tobacco retailer means any person or business that operates or manages a store, stand, booth,
concession or other place at which sales of tobacco products are made to
purchasers for consumption or use. |
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| (f) Vendor assisted means the customer has no access to tobacco products without the assistance of the vendor,
store owner or other store employee. |
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| (g) Division means the County Division of Consumer Affairs. |
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| SECTION 5. SELF-SERVICE DISPLAY AND PLACEMENT PROHIBITED. |
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| It shall be unlawful for any tobacco retailer to sell, permit to be sold, offer for
sale or display for sale any tobacco product by means of self-service
display or placement or by any other means other than vendor assisted
sales. |
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| SECTION 6.EXCEPTION. |
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| The provisions of this Ordinance shall not apply to an establishment that
prohibits persons under 18 years of age on the premises. |
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| SECTION 7. APPLICABILITY. |
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| This Ordinance shall be applicable throughout the unincorporated areas of the County. This
Ordinance shall be applicable within the incorporated areas of the County
to the extent that it does not conflict with the provisions of a municipal
ordinance. |
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| SECTION 8 ENFORCEMENT AND PENALTIES. |
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| (a) This Ordinance shall be enforced by personnel authorized by the division, and law enforcement
officers within their respective jurisdictions. |
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| (b) Any violation of this Ordinance is a civil infraction. |
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| (c) Any tobacco retailer who has committed an act in violation of this Ordinance shall receive a citation from the division or
any law enforcement officer who has reasonable cause to believe that the
tobacco retailer has committed a civil infraction in violation of this
Ordinance. |
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| (d) The county court shall have jurisdiction over all violations of this Ordinance. |
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| (e) The county clerk shall: |
(1) Accept designated fines and issue receipts therefore.
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(2) Provide a uniform citation form serially numbered for notifying alleged violators to appear and answer to charges of violation of this Ordinance. Such citation forms shall be issued to and receipted by the division.
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| (f) Violation of any provision of this Ordinance shall be punishable by a fine not to exceed
five hundred dollars ($500.00). Any tobacco retailer who has violated any
provision of this Ordinance shall be fined an amount as established by
resolution of the Board of County Commissioners. |
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| (g) Any tobacco retailer issued a citation shall be deemed to be charged with a civil violation and
shall comply with the directives on the citation. |
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| (h) Payment shall be made, either by mail or in person, to the violations bureau within the
time specified on the citation. If a tobacco retailer follows this
procedure, he or she shall be deemed to have admitted the infraction and
to have waived his or her right to a hearing on the issue of commission of
the infraction. |
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| (i) All fines collected as a result of said citations (except those fines collected as a result of citations issued by municipal
law enforcement officers, which shall be remitted by the clerk of the
court directly to the municipality issuing the citation) shall be paid
into the County treasury and deposited into an account designated for use
by the division. |
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| (j) Any tobacco retailer who fails to make payment within the specified period shall be deemed to have waived his or her right to
pay the civil penalty as set forth in the citation. |
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| (k) Any tobacco retailer who elects to appear before the court to contest the citation
shall be deemed to have waived his or her right to pay the civil penalty.
The court, after a hearing, shall make a determination as to whether a
violation has occurred and may impose a civil penalty not to exceed five
hundred dollars ($500.00) plus court costs. |
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| (l) If a tobacco retailer fails to pay the civil penalty, or fails to appear in court to contest the
citation, he or she shall be deemed to have waived his or her right to
contest the citation; and in such case, a default judgment may be entered
and the judge shall impose a fine at that time. An order to show cause may
be issued. If the fine is paid, the case shall be dismissed. If the fine
is not paid, judgment may be entered up to the maximum civil penalty. |
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| (m) Any tobacco retailer cited for an infraction under this Ordinance shall
sign and accept the citation indicating a promise to pay the fine or
appear in court. Any tobacco retailer who willfully refuses to sign and
accept a citation issued by an officer shall be guilty of a misdemeanor of
the second degree, punishable as provided by Florida Statute § 775.082 or
775.083, as may be amended. |
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| (n) The division may require mandatory court appearances for violations resulting in the issuance of a third or
subsequent citation to a tobacco retailer. The citation shall clearly
inform the tobacco retailer of the mandatory court appearance. The
division shall maintain records to prove the number of citations issued to
the tobacco retailer. Tobacco retailers required to appear in court do not
have the option of paying the fine instead of appearing in court. |
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| (o) Failure to comply with the requirements of this Ordinance shall constitute
a violation of a County ordinance, and shall be punishable, upon
conviction, pursuant to Florida Statutes, §125.69(1), by a fine not to
exceed five hundred dollars ($500.00) per violation or imprisonment not
exceeding sixty (60) days, or both such fine and imprisonment. In addition
to the sanctions contained herein, the County shall take any other
appropriate legal action, including, but not limited to, cease and desist
orders, other administrative action and requests for temporary and
permanent injunctions to enforce the provisions of this Ordinance. It is
the purpose of this Ordinance to provide additional cumulative remedies.
Each violation of this Ordinance, and each day in which a continuing
violation of this Ordinance exists, shall constitute a separate offense. |
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| SECTION 9. REPEAL OF LAWS IN CONFLICT. |
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| All local laws and ordinances in conflict with any provisions of this Ordinance which are within the
County's power to repeal are hereby repealed to the extent of such
conflict. |
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| SECTION 10. SEVERABILITY. |
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| If any section, paragraph, sentence, clause, phrase, or word of this Ordinance is for any reason held
by the Court to be unconstitutional, inoperative, or void, such holding
shall not affect the remainder of this Ordinance. |
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| SECTION 11. INCLUSION IN THE CODE OF LAWS AND ORDINANCES. |
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| The provisions of this Ordinance shall become and be made a part of the Code
of Laws and Ordinances of Palm Beach County, Florida. The sections of this
Ordinance may be renumbered or relettered to accomplish such, and the word
"ordinance" may be changed to "section", "article", or other appropriate
word. |
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| SECTION 12. EFFECTIVE DATE. |
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| The provisions of this Ordinance shall become effective on September 1, 2001.
APPROVED and ADOPTED by the Board of County
Commissioners of Palm Beach County, Florida,
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Divisions
