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Home My Public Portal AboutOrdinance No. 1271-14 05-06-2014ORDINANCE NO. 1271-14 AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE CITY OF RICHLAND HILLS, ARTICLE V, "PUBLIC BUILDINGS AND FACILITIES," OF CHAPTER 70, "STREETS, SIDEWALKS AND OTHER PUBLIC PLACES," TO ADD A DEFINITION FOR "ELECTRONIC VAPING DEVICE" AND TO AMEND THE DEFINITION OF "SMOKING" TO INCLUDE THE USE OF AN ELECTRONIC VAPING DEVICE; AND AMENDING CHAPTER 18, "BUSINESSES," OF THE CODE OF ORDINANCES BY ADDING ARTICLE X, "ELECTRONIC VAPING DEVICES," TO PROHIBIT THE SALE AND DISTRIBUTION OF ELECTRONIC VAPING DEVICES TO MINORS; AND AMENDING ARTICLE II, "MINORS," OF CHAPTER 58, "OFFENSES AND MISCELLANEOUS PROVISIONS," OF THE CODE OF ORDINANCES BY ADDING DIVISION 3, "ELECTRONIC VAPING DEVICES," TO PROHIBIT THE PURCHASE AND POSSESSION OF ELECTRONIC VAPING DEVICES BY MINORS; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR A PENALTY FOR VIOLATIONS; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Richland Hills, Texas is a home rule city acting under its Charter adopted by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and Chapter 9 of the Local Government Code; and WHEREAS, the City Council has investigated and determined that electronic vaping devices permit users of the devices to inhale vapor containing variable amounts of nicotine and other harmful toxicants; and WHEREAS, the City Council has further investigated and determined that exposure to electronic vaping devices by minors is a serious health concern; and WHEREAS, the City Council has further investigated and determined that the 2012 National Youth Tobacco Survey shows that the use of electronic vaping devices by U.S. high school students has doubled from the previous year to 2.8%; and WHEREAS, the City Council has further investigated and determined that medical and pharmacological experts have opined that electronic vaping devices contain nicotine in a liquid form that may escape from the devices and be ingested by minors which may cause symptoms such as hyperactivity, flushing, sweating, headache, dizziness, rapid heart rate, vomiting, diarrhea, burning and irritation of the skin and, in severe cases, may result in a coma or death; and WHEREAS, the City Council has further investigated and determined that studies have shown that electronic vaping devices can serve as a "gateway" to smoking traditional tobacco products which are illegal for minors to purchase or possess; and WHEREAS, the City Council has further investigated and determined that electronic vaping devices are currently not regulated by the State of Texas or the federal government; and WHEREAS, the City Council has determined that it is in the best interest and welfare of the citizens of Richland Hills to prohibit the possession and purchase of electronic vaping devices by minors and the sale and distribution of electronic vaping devices to minors; and WHEREAS, the U.S. Food and Drug Administration ("FDA") acknowledges that the safety and efficacy of electronic vaping devices in adults have not been fully studied; therefore, consumers have no way of knowing, among other things, whether such devices are safe for their intended use or how much nicotine or other potentially harmful chemicals are being inhaled during use; and WHEREAS, the FDA is considering appropriate regulation of electronic vaping devices, but the City Council has determined that it is essential for the City to impose some type of reasonable restriction on these products until a federal regulatory system may be properly implemented; and WHEREAS, the City Council has determined that the regulation of electronic vaping devices by prohibiting the use of such devices in all city buildings and facilities, except in designated smoking areas, is in the best interests of the City of Richland Hills and will promote the health, safety and welfare of the citizens of the City of Richland Hills and the general public. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF RICHLAND HILLS, TEXAS, THAT: SECTION 1. Article V of Chapter 70 of the Code of Ordinances of the City of Richland Hills, Texas is hereby amended by amending Section 70-206 by adding a definition for "Electronic Vaping Device" and by amending the definition of "Smoking" to read as follows: ELECTRONIC VAPING DEVICES Page 2 "Sec. 70-206. Definitions. The following words and phrases when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: **** Electronic vaping device shall mean any electronically powered or battery powered device designed to simulate the smoking of tobacco, cigarettes, pipes or cigars. An electronic vaping device includes personal vaporizers, electronic cigarettes (e-cigarettes), electronic pipes (e-pipes), electronic cigars (e-cigars) and any other type of electronic nicotine delivery system or any part thereof. **** Smoking means the combustion of any cigar, cigarette, pipe tobacco or similar article using any form of tobacco or tobacco product which is ignited and inhaled, ingested or otherwise drawn into the mouth, nose or lungs of any person, and the use of any electronic vaping device. ****„ SECTION 2. Chapter 18 of the Code of Ordinances of the City of Richland Hills, Texas is hereby amended by adding Article X to read as follows: "ARTICLE X. ELECTRONIC VAPING DEVICES. Sec. 18-501. Definitions. (1) Electronic vaping device shall mean any electronically powered or battery powered device designed to simulate the smoking of tobacco, cigarettes, pipes or cigars. An electronic vaping device includes personal vaporizers, electronic cigarettes (e-cigarettes), electronic pipes (e-pipes), electronic ELECTRONIC VAPING DEVICES Page 3 cigars (e-cigars) and any other type of electronic nicotine delivery system or any part thereof. (2) Minor shall mean, for the purpose of this article only, a person younger than 18 years of age. (3) Person shall mean an individual, corporation, sole proprietorship, and any other type of business entity recognized under Texas law. Sec. 18-502. Sale or Distribution of Electronic Vaping Devices to Minors Prohibited. (a) A person commits an offense if the person sells, gives or causes to be sold or given an electronic vaping device to a minor or to a person who intends to deliver it to a minor. (b) If the offense under this section occurs in connection with a sale of an electronic device at a business by an employee of the business, the employee who committed the offense is subject to prosecution. (c) It is a defense to prosecution under subsection (b) that at the time of the sale, the minor presented the person with an apparently valid proof of identification showing the minor was at least 18 years of age. (d) A proof of identification satisfies the requirements of subsection (c) if it contains the name of the minor, a photograph resembling the appearance of the minor and was issued by a state or federal government agency. (e) It is not a defense under this section that the minor purchased the electronic vaping device from a vending machine or other self-service merchandising mechanism if the machine or mechanism was located on the premises of the person." Secs. 18-503 -18-550. Reserved." SECTION 3. Article II of Chapter 58 of the Code of Ordinances of the City of Richland Hills, Texas is hereby amended by adding Division 3 to read as follows: ELECTRONIC VAPING DEVICES Page 4 "DIVISION 3. ELECTRONIC VAPING DEVICES. Sec. 58-81. Possession of Electronic Vaping Devices by Minors Prohibited. (a) A minor commits an offense if the minor possesses, purchases or attempts to purchase an electronic vaping device. (b) A minor commits an offense if the minor falsely represents himself or herself to be 18 years of age or older for the purpose of purchasing or receiving an electronic vaping device. (c) It shall be a defense to prosecution for a violation of this section if at the time of the purchase, the minor: (1) was in the presence of an adult parent or legal guardian of the minor; (2) was in the course of scope of the minor's employment and the purchase of the electronic vaping device was a part of the duties of such employment; or (3) was participating in an inspection or test of compliance in conjunction with local law enforcement. Secs. 58-82 - 58-90. Reserved." SECTION 4. CUMULATIVE This Ordinance shall be cumulative of all provisions of the City Code and other ordinances of the City of Richland Hills, Texas, except where the provisions of this ordinance are in direct conflict with the provisions of other ordinances, in which event the conflicting provisions of the other ordinances are hereby repealed. SECTION 5. SEVERABLE It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, and sections of this ordinance are severable, and if a phrase, clause, sentence, paragraph, or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of a court of competent jurisdiction, such unconstitutionality shall not affect the remaining phrases, clauses, sentences, paragraphs, and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of the unconstitutional phrase, clause, sentence, paragraph, or section. ELECTRONIC VAPING DEVICES Page 5 SECTION 6. SAVINGS All rights and remedies of the City of Richland Hills are expressly saved as to any and all violations of the provisions of the City Code or any other ordinances regulating solicitors, canvassers or handbill distribution that have accrued at the time of the effective date of this ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, same shall not be affected by this ordinance but may be prosecuted until final disposition by the courts. SECTION 7. PENALTY Any person, firm, or corporation who violates, disobeys, omits, neglects, or refuses to comply with or who resists the enforcement of any of the provisions of this ordinance shall be fined not more than Five Hundred Dollars ($500.00) for each offense. SECTION 8. PUBLICATION The City Secretary of the City of Richland Hills is hereby directed to publish caption, penalty clause, and effective date clause in the official newspaper at least once within ten (10) days after the passage of this ordinance. SECTION 9. EFFECTIVE DATE This Ordinance shall be in full force and effect from and after its passage and publication as required by law, and it is so ordained. PASSED AND APPROVED ON THIS ~ DAY OF , 2014. 4~~~ THE HONORA BILLAGAN, MAYOR ATTEST: ~~-~-/ LIN A C NTU, CITY SECRETARY EFFECTIVE DATE: APPROVED AS TO FORMAN LEGALITY: BETSY , C ATTORNEY \~~~~~"„ u n i nu,~,~~~ `~~`G~LFN D y~`~ ,~ -, =~ ~- ~~ I ~_ ELECTRONIC VAPING DEVICES Page 6