Chapter 8.28
ELECTRONIC SMOKING DEVICES, E-LIQUIDS AND UNREGULATED NICOTINE DELIVERY PRODUCTS
Sections:
8.28.010 Authority and purpose.
8.28.030 Age identification requirement.
8.28.040 Sale or distribution to minors prohibited.
8.28.050 Sampling and coupons.
8.28.060 Sales from mechanical equipment restricted.
8.28.070 Use in public places.
8.28.100 Administrative appeals.
8.28.010 Authority and purpose.
A. This chapter is promulgated under the authority of Chapter 70.05 RCW and Article 11, Section 11 of the Washington Constitution.
B. This regulation is promulgated to provide for and promote the health, safety, and welfare of the general public, and not to create or otherwise establish or designate any particular class or group of persons who will or should be especially protected or benefited by this chapter. The provisions of this chapter shall be liberally construed for the accomplishment of its purpose.
C. It is the specific intent of this chapter to place the obligation of complying with its requirements upon the owner of each establishment within its scope, and no provision nor term used in this title is intended to impose any duty whatsoever upon the board of health, San Juan County, or any of its officers or employees, for whom the implementation or enforcement of this chapter shall be discretionary and not mandatory.
D. Nothing contained in this chapter is intended to be nor shall be construed to create or form the basis for any liability on the part of the board of health, San Juan County, or any of its officers or employees, for any injury or damage resulting from the failure of any person subject to this chapter to comply with this chapter, or by reason or in consequence of any act or omission in connection with the implementation or enforcement of this chapter on the part of the board of health, health and community services, or its officers or employees. (Ord. 1-2015 BOH § 1)
8.28.020 Definitions.
A. “E-liquid” or “e-juice” means a liquid packaged or intended for use in an electronic smoking device.
B. “Electronic smoking device” means an electronic or battery-operated device, the use of which resembles smoking, which can be used to deliver nicotine or other substances to the person inhaling from the device. “Electronic smoking device” includes, but is not limited to, an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, and an electronic hookah. “Electronic smoking device” does not include a cigarette, as defined in RCW 82.24.010, tobacco products, as defined in RCW 82.26.010, or a nicotine delivery product device that is regulated by the U.S. Food and Drug Administration or can be prescribed by an authorized prescriber.
C. “Employer” means any person, sole proprietorship, partnership, corporation, association, nonprofit organization, or other entity that pays another person direct or indirect monetary wages or profit in consideration for such other person’s providing services on the premises of the employer, or who otherwise directs another person to perform work or render services on the premises of the employer. “Employer” also means the owner(s) of a sole proprietorship, partnership, corporation, association, nonprofit organization, or other business entity.
D. “Minor” means any person younger than 18 years old.
E. “Person” means any natural person, individual, corporation, unincorporated association, proprietorship, firm partnership, joint venture, joint stock association, or other entity of business of any kind.
F. “Place of employment” means any area under the control of a public or private employer which employees are required to pass through during the course of employment, including, but not limited to, entrances and exits to the places of employment. A private residence or home-based business, unless used to provide licensed child care, foster care, adult care, or other similar social service care on the premises, is not a “place of employment.”
G. “Public place” means that portion of any building or vehicle used by and open to the public, regardless of whether a fee is charged for admission. A public place does not include a private residence unless the private residence is used to provide licensed child care, foster care, adult care, or other similar social service care on the premises.
H. “Seller” means any person who sells, provides samples, promotes, or distributes with an economic or a business purpose, or offers to exchange for any form of consideration, electronic smoking devices or unregulated nicotine delivery products.
I. “Unregulated nicotine delivery product” means a product containing or delivering nicotine intended or expected for human consumption, or any part of such a product, that is not a cigarette, as defined by RCW 82.24.010, or a tobacco product, as defined by RCW 82.26.010, and that has not been approved or otherwise certified for sale by the United States Food and Drug Administration as a tobacco use cessation product, or for other medical purposes. (Ord. 1-2015 BOH § 2)
8.28.030 Age identification requirement.
Each seller shall verify by means of photographic identification listed in RCW 70.155.090 that no person purchasing an electronic smoking device, e-liquid, or unapproved nicotine delivery device is younger than 18 years old, or the minimum age for purchase of tobacco provided by state or federal law. (Ord. 1-2015 BOH § 3)
8.28.040 Sale or distribution to minors prohibited.
A. No person shall sell, give or furnish, or cause or allow to be sold, given or furnished, an electronic smoking device or e-liquid to a minor unless that product has been approved or otherwise certified for legal sale by the United States Food and Drug Administration and approved for use by minors, and the product is being sold, given or otherwise furnished pursuant to that approval and in full compliance with any related Food and Drug Administration rules, regulations, or other requirements.
B. No person shall sell, give or furnish, or cause or allow to be sold, given or furnished, an unregulated nicotine delivery device to a minor.
C. It shall not be a violation of this section if the person making the sale, gift or otherwise furnishing the product reasonably relied on any of the officially issued identifications listed in RCW 70.155.090 showing that the purchaser or recipient was at least 18 years old. (Ord. 1-2015 BOH § 4)
8.28.050 Sampling and coupons.
No person who manufactures, sells, or distributes electronic smoking devices, e-liquids, or unregulated nicotine delivery products shall:
A. Give, or cause or allow to be given, an electronic smoking device, e-liquid, or unregulated nicotine delivery product to any person at no cost or at nominal cost; or
B. Give, or cause or allow to be given, to any person a coupon which can be redeemed for an electronic smoking device, e-liquid, or unregulated nicotine delivery product, unless the coupon may only be redeemed in a manner that requires an in-person transaction in a retail store. (Ord. 1-2015 BOH § 5)
8.28.060 Sales from mechanical equipment restricted.
No person shall sell or permit to be sold electronic smoking devices, e-liquids, or unregulated nicotine delivery products through any device that mechanically dispenses such products unless the device is located fully within premises from which minors are prohibited. (Ord. 1-2015 BOH § 6)
8.28.070 Use in public places.
It shall be prohibited to use an electronic smoking device in any place where smoking is prohibited per Chapter 70.160 RCW (Smoking in Public Places) except in establishments where the only retail activity is the sale, distribution, or sampling of electronic smoking devices and e-liquids, and access by minors is prohibited. (Ord. 1-2015 BOH § 7)
8.28.080 Required signage.
Sellers shall display a printed sign posted so that it is clearly visible to anyone purchasing electronic smoking devices or e-liquid. The sign must be in contrasting colors and at least 20-point type, and must read substantially as follows:
THE SALE OF ELECTRONIC SMOKING DEVICES AND E-LIQUIDS IS PROHIBITED TO PERSONS UNDER AGE 18.
(Ord. 1-2015 BOH § 8)
8.28.090 Enforcement.
The health officer or designee is hereby authorized to utilize the enforcement procedures of this section in order to enforce this chapter.
A. Violations of SJCC 8.28.040 are subject to the following civil penalties:
1. A penalty of $100.00 for the first violation within any two-year period;
2. A penalty of $300.00 for the second violation within any two-year period; and
3. A penalty of $1,000 for the third violation within any two-year period.
B. Violations of SJCC 8.28.030, 8.28.050, 8.28.060 or 8.28.080 are subject to a civil penalty of up to $100.00 for the first violation and $200.00 for each subsequent violation.
C. Violations of SJCC 8.28.070 are subject to a verbal warning for the first violation to both the violator and the owner or person in charge of the establishment; subsequent violations may result in a civil penalty of $50.00 per incident.
D. The health officer may reduce or waive the penalties in this chapter if there are mitigating circumstances. Mitigating circumstances may include, but are not limited to, an exercise of due diligence by a seller. (Ord. 1-2015 BOH § 9)
8.28.100 Administrative appeals.
A. Any aggrieved person may file an administrative appeal of a civil penalty assessed under SJCC 8.28.090.
B. A person is aggrieved for purposes of this section only when all three of the following conditions are present:
1. The action of the health officer has injured or is likely to injure that person;
2. The person’s asserted interests are among those that the health officer was required to consider when he made the challenged decision; and
3. A ruling in favor of the person would substantially eliminate or redress the injury to that person caused or likely to be caused by the health officer’s action.
C. A request for an administrative appeal shall be filed in writing with the department and any applicable fee shall be paid within 21 calendar days following the date of the decision being appealed. A properly filed hearing request stays the effective date of the decision.
D. An administrative review shall be conducted within 30 calendar days of the filing of the appeal, unless alternative scheduling is mutually agreed to in writing by both parties.
E. Notice of the administrative review will be given to the person requesting the review and the seller or establishment owner as applicable.
F. The administrative review shall be an open record review presided over by the health officer. Evidence shall not be accepted after the review is closed unless expressly permitted by the health officer or by written agreement of all affected parties.
G. The health officer shall maintain a record of all documents presented. The health officer shall issue a written decision on the administrative appeal within 10 business days of the review, and may require additional actions as part of the decision. (Ord. 1-2015 BOH § 10)
8.28.110 Appeals.
A ruling by the health officer made under SJCC 8.28.100 may be appealed to the board of health following the procedures set out in Chapter 8.22 SJCC. (Ord. 1-2015 BOH § 11)