[Adopted 4-21-2015 by L.L. No. 6-2015]
This article shall be known as the "Ulster County Tobacco Licensing
and Reduced Youth Exposure to Tobacco Law."
A.
The Ulster County Legislature hereby finds and determines that Ulster
County has a substantial interest in reducing the number of individuals
of all ages who use cigarettes and other tobacco products, and a particular
interest in protecting adolescents from tobacco dependence and the
illnesses and premature death associated with tobacco use.
B.
Tobacco companies sell products that are addictive and inherently
dangerous, causing cancer, heart disease, and other serious illnesses.
C.
An overwhelming majority of Americans who use tobacco products begin
using such products while they are adolescents and become addicted
before reaching the age of 18. The Surgeon General of the United States
has concluded that if young people don't start using tobacco
by age 26, they almost certainly will never start.
D.
Studies have found higher rates of smoking at schools with more tobacco
retailers within walking distance. Researchers suggest that limiting
the proximity of tobacco outlets to schools may be an effective strategy
to reduce youth smoking rates.
E.
Although it is unlawful to sell tobacco products to minors, 5.9%
of New York retailers surveyed do sell to minors (New York State Department
of Health, 2010 Youth Access Tobacco Enforcement Program Annual report);
and 20% of underage smokers in New York report that they usually purchase
their cigarettes from a retail store (New York Youth Tobacco Survey
2008).
F.
A local licensing system for tobacco retailers will provide a local
enforcement mechanism to allow Ulster County to monitor and increase
tobacco retailers' compliance with state and federal laws that
prohibit sales of tobacco products to minors by requiring compliance
with these laws as a condition for obtaining and maintaining a local
tobacco retail license. A local licensing system for tobacco retailers
is consistent with the County's power pursuant to General Municipal
Law to protect and promote the health of its youth. Moreover, the
Family Smoking Prevention and Control Act of 2009 provides local governments
with the freedom to implement tobacco control policy options, including
tobacco licensing and reducing the number of tobacco retailers in
heavily youth populated areas.
G.
A recent survey by the Baruch College School of Public Affairs found
that 78% of Ulster County residents surveyed opposed tobacco sales
at stores near schools and 61% favored an outright ban on the sale
of tobacco products near schools.
H.
Therefore, it is the intent of Ulster County to reduce youth smoking
rates by implementing effective measures through this article to license
all tobacco retail outlets, restrict the establishment of new tobacco
retail outlets near schools, provide locally enforceable penalties,
and increase education and awareness of the harm associated with tobacco
use in youth populations.
As used in this article, the following terms shall have the
meanings indicated:
A hearing administered by the Ulster County Department of
Health as allowed by New York Public Health Law Section 309 and according
to regulations adopted by the Ulster County Department of Health.
An individual, partnership, limited liability company, corporation,
or other business entity seeking an Ulster County tobacco retail license.
The Ulster County Department of Health.
Any person who is lawfully engaged in the retail sale of
tobacco products and possesses a valid certificate of registration
as a tobacco retail dealer from the New York State Department of Taxation
and Finance on the effective enforcement date of this article.
The minimum age at which individuals are permitted to legally
purchase tobacco products.
Any tobacco retail license that is not a renewed tobacco
retail license.
Any natural person, company, corporation, firm, partnership,
business organization, or other legal entity.
A tobacco retail license issued to an applicant for the same
location at which the applicant previously possessed a valid tobacco
retail license during the previous year.
A public or private kindergarten, elementary, middle, junior
high, or high school; or a Board of Cooperative Educational Services
Center.
Any manufactured product containing tobacco or nicotine,
including but not limited to cigarettes, cigars, pipe tobacco, snuff,
chewing tobacco, dipping tobacco, bidis, snus, dissolvable tobacco
products and electronic cigarette cartridges.
A license issued by the Ulster County Department of Health
to a person engaged in the sale of tobacco products in Ulster County.
Any person who sells or offers for sale any tobacco product,
or any employee of such a person.
A.
Effective January 1, 2016, no person shall sell, offer for sale,
or permit the sale of tobacco products to consumers in Ulster County,
without possessing a valid tobacco retail license issued by the Ulster
County Department of Health. A tobacco retail license is not required
for a wholesale dealer who sells tobacco products to retail dealers
for the purpose of resale only and does not sell any tobacco products
directly to consumers.
B.
All tobacco retail licenses issued pursuant to this article are nontransferable
and nonassignable and are valid only for the applicant and the specific
address indicated on the tobacco retail license. A separate tobacco
retail license is required for each address at which tobacco products
are sold or offered for sale.
C.
All tobacco retail licenses issued pursuant to this article are valid for no more than one year and expire on the next occurring December 31 following the effective date of the tobacco retail license. As set forth in § 301-16, a tobacco retail license may be revoked by the Department prior to its expiration date for cause.
D.
No tobacco retail licenses shall be issued to an applicant who does
not have a fixed, permanent retail location.
E.
With the exception of the first year subsequent to this article's
effective date, no new tobacco retail license shall be issued to any
establishment located within 1,000 feet of the nearest point of the
property line of a school. Renewed tobacco retail license(s) shall
be issued to person(s) located within 1,000 feet of a school which
have previously held a tobacco retail license. A new applicant who
purchases a business located within 1,000 feet of a school may apply
for a new tobacco retail license only if the previous owner held a
valid and current tobacco retail license and the operations of the
business are staying at the same location and within the same scope.
F.
Existing tobacco retailers shall submit applications for a new tobacco
retail license to the Department in writing upon a form provided by
the Department at least 30 days prior to January 1, 2016. Thereafter,
all applications for a renewed tobacco retail license shall be submitted
to the Department in writing upon a form provided by the Department
at least 30 days prior to the expiration of the current tobacco retail
license.
G.
Tobacco retailers not in existence prior to January 1, 2016, shall
submit an application for a new tobacco retail license at least 30
days prior to opening and may not sell tobacco products until such
a license is issued.
H.
The Department may require all forms and the documentation therefor
to be signed and/or verified by the applicant or an authorized agent
thereof.
I.
Within 30 days of receiving a completed application and supporting
documentation, if any, the Commissioner must either grant or deny
the applicant's request for a tobacco retail license and must
notify the applicant of his or her determination. If the applicant
is an existing tobacco retailer, the retailer may continue to engage
in the sale of tobacco products until such time as a determination
is made by the Commissioner and the retailer receives notification
of such determination. If the applicant is applying for a new tobacco
retail license and was not in existence prior to January 1, 2016,
the applicant may not begin selling tobacco products until he or she
receives notification of the Commissioner's determination.
A.
The Commissioner shall, at least 45 days prior to the effective date
of this article, send to each existing tobacco retailer in Ulster
County a tobacco retail license application and a copy of this article.
The Commissioner shall, as part of the application process, identify
and notify any existing tobacco retailer in Ulster County that is
located within 1,000 feet from the nearest point of the property line
of a school.
B.
Any existing tobacco retailer identified as being located within 1,000 feet of the nearest point of the property line of a school, may dispute such designation. Any such dispute must be made in writing to the Commissioner within 15 days of receipt of the notice provided for in Subsection A above and include any and all evidence the retailer relies on to support its claim that its business is not located within 1,000 feet of the nearest point of the property line of a school. The Commissioner shall consider such evidence as part of the application. The Commissioner shall have final authority to determine whether the retailer is located within 1,000 feet of a school.
A.
Upon the receipt of a fully completed application for a new or renewed
tobacco retail license, and any additional documents as may be required
by the Department, the Department shall inspect the location at which
tobacco sales are to be permitted. The Department may also require
the applicant to provide additional information that is reasonably
related to the determination of whether a license may issue.
B.
The Department may refuse to issue a tobacco retail license to an
applicant if it finds that one or more of the following bases for
denial exists:
(1)
The information presented in the application is incomplete, inaccurate,
false, or misleading;
(2)
The applicant does not possess a valid certificate of registration
as a tobacco retail dealer from the New York State Department of Taxation
and Finance;
(3)
The application seeks a new tobacco retail license at a location
for which this article prohibits the issuance of a new tobacco retail
license;
(4)
A tobacco retail license issued under this article was previously
revoked;
(5)
The applicant has been found by a court of law or administrative
body to have violated any federal, state, or local laws pertaining
to:
(6)
The applicant has not paid to the Department outstanding fees, fines,
penalties, or other charges owed to Ulster County; or
(7)
The Department determines in accordance with written criteria established
by the Department to further the purposes of this article, that a
tobacco retail license should not be issued to the applicant.
The Department shall create appropriate training materials and
programs that shall be made available to any existing tobacco retailer.
A.
Any tobacco retail license issued pursuant to this article shall
be displayed prominently at the location where the tobacco products
are sold so that it is readily visible to customers.
A.
Any existing tobacco retailer who is found to be in violation of
the terms and conditions of this article or for violation of any federal,
state, or local law pertaining to 1) the display of tobacco products
or of health warnings pertaining to tobacco products, or 2) the sale
of tobacco products, shall have their tobacco retail license suspended
for up to three months for a first offense; up to six months for a
second offense within a two-year period; or revoked for a third offense
within a two-year period, after notice and an opportunity to be heard
at an administrative hearing. Any such violator may also be required
to complete a training program designated by the Department prior
to reinstatement of such license.
A.
The Department or its authorized designee(s) shall enforce this article's
provisions. The Department may conduct periodic inspections in order
to ensure compliance with this article.
B.
In addition to the penalties provided for in § 301-16, any person found to be in violation of this article, after notice and an opportunity to be heard at an Administrative Hearing, shall be liable to a civil penalty of not more than $250 for the first violation, not more than $500 for the second violation within a two-year period, and not more than $1,000 for the third and each subsequent violation within a two-year period.
A.
The Commissioner of the Ulster County Health Department, in consultation
with the Ulster County Board of Health, is hereby authorized to develop
rules, regulations, and procedures necessary to implement this article.
B.
The Commissioner shall have the authority to waive the distance requirement of § 301-11E for any new applicant who did not previously possess a valid tobacco retail license, only if it can be shown by clear and convincing evidence by the applicant that a waiver of such distance requirement will not compromise the aforestated purpose and the general intent of this article.
The effective date of this article shall be on January 1, 2016.
