City of Clayton, MO Offenses Concerning Tobacco

Any non-combustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by any other means. Alternative nicotine product does not include any vapor product, tobacco product or any product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Food, Drug, and Cosmetic Act.[1]

DISTRIBUTE

A conveyance to the public by sale, barter, gift or sample.

MINOR

A person under the age of twenty-one (21).

PROOF OF AGE

A driver's license or other generally accepted means of identification that contains a picture of the individual and appears on its face to be valid.

ROLLING PAPERS

Paper designed, manufactured, marketed or sold for use primarily as a wrapping or enclosure for tobacco which enables a person to roll loose tobacco into a smokeable cigarette.

SAMPLE

A tobacco product distributed to members of the general public at no cost or at nominal cost for product promotional purposes.

SAMPLING

The distribution to members of the general public of tobacco product samples.

TOBACCO PRODUCTS

Any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco or dipping tobacco.

VAPOR PRODUCT

Any non-combustible product containing nicotine that employs a heating element, power source, electronic circuit, or other electronic, chemical or mechanical means, regardless of shape or size, that can be used to produce vapor from nicotine in a solution or other form. Vapor product includes any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and any vapor cartridge or other container of nicotine in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device. Vapor product does not include any alternative nicotine product or tobacco product.

[1]

Editor's Note: See 21 U.S.C. § 351 et seq.

Section 215.620 Unlawful To Sell Or Distribute Tobacco Products, Alternative Nicotine Products, Vapor Products, Or Rolling Papers To Minors — Vending Machine Requirements

[Ord. No. 6466 § 1, 1-10-2017[1]; Ord. No. 6475 § 1, 3-28-2017]

It shall be unlawful for any person to sell, provide or distribute tobacco products, alternative nicotine products, vapor products, or rolling papers to persons under twenty-one (21) years of age.

All vending machines that dispense tobacco products, alternative nicotine products, vapor products, or rolling papers shall be located within the unobstructed line of sight and under the direct supervision of an adult responsible for preventing persons less than twenty-one (21) years of age from purchasing any tobacco product from such machine or shall be equipped with a lock-out device to prevent the machines from being operated until the person responsible for monitoring sales from the machines disables the lock. Such locking device shall be of a design that prevents it from being left in an unlocked condition and which will allow only a single sale when activated. A locking device shall not be required on machines that are located in areas where persons less than twenty-one (21) years of age are not permitted or prohibited by law. An owner of an establishment whose vending machine is not in compliance with the provisions of this Subsection shall be subject to the penalties contained in Subsection (E) of this Section. A determination of non-compliance may be made by a local law enforcement agency or the Division of Liquor Control. Nothing in this Section shall apply to a vending machine if located in a factory, private club or other location not generally accessible to the general public.

No person or entity shall sell, provide or distribute any tobacco, alternative nicotine product, vapor product, or rolling papers to any minor or sell any individual cigarettes to any person in this State. This Subsection shall not apply to the distribution by family members on property that is not open to the public.

Any person, including, but not limited to, a sales clerk, owner or operator, who violates Subsection (A), (B) or (C) of this Section or Section 215.650 of this Article shall be penalized as follows:

For the first offense: twenty-five dollars ($25.00);

For the second offense: one hundred dollars ($100.00); and

For a third and subsequent offense: two hundred fifty dollars ($250.00).

Any owner of the establishment where tobacco products, alternative nicotine products, vapor products, or rolling papers are available for sale who violates Subsection (C) of this Section shall not be penalized pursuant to this Section if such person documents the following:

An in-house or other tobacco compliance employee training program was in place to provide the employee with information on the State and Federal regulations regarding tobacco sales to minors. Such training program must be attended by all employees who sell tobacco products to the general public;

A signed statement by the employee stating that the employee has been trained and understands the State laws and Federal regulations regarding the sale of tobacco to minors; and

Such in-house or other tobacco compliance training meets the minimum training criteria, which shall not exceed a total of ninety (90) minutes in length, established by the Division of Alcohol and Tobacco Control.

The exemption in Subsection (E) of this Section shall not apply to any person who is considered the general owner or operator of the outlet where tobacco products are available for sale if:

Four (4) or more violations per location of Subsection (C) of this Section occur within a one-year period; or

Such person knowingly violates or knowingly allows his/her employees to violate Subsection (C) of this Section.

If a sale is made by an employee of the owner of an establishment in violation of this Article, the employee shall be guilty of an offense established in Subsections (A), (B) and (C) of this Section. If a vending machine is in violation of Section 215.650, the owner of the establishment shall be guilty of an offense established in Subsections (C) and (D) of this Section. If a sample is distributed by an employee of a company conducting the sampling, such employee shall be guilty of an offense established in Subsections (C) and (D) of this Section.

A person cited for selling, providing or distributing any tobacco product to any individual less than twenty-one (21) years of age in violation of Subsections (A), (B) or (C) of this Section shall conclusively be presumed to have reasonably relied on proof of age of the purchaser or recipient, and such person shall not be found guilty of such violation if such person raises and proves as an affirmative defense that such individual presented a driver's license or other government-issued photo identification purporting to establish that such individual was twenty-one (21) years of age or older.

[1]

Editor's Note: Ord. No. 6466 also changed the title of this Section from "Unlawful To Sell or Distribute Tobacco Products To Minors - Vending Machine Requirements" to "Unlawful To Sell or Distribute Tobacco Products, Alternative Nicotine Products, Vapor Products, Or Rolling Papers To Minors - Vending Machine Requirements."

Section 215.630 Minors Prohibited From Purchase Or Possession Of Tobacco Products, Alternative Nicotine Products, Vapor Products Or Rolling Papers — Misrepresentation Of Age

[Ord. No. 6466 § 1, 1-10-2017[1]; Ord. No. 6475 § 1, 3-28-2017]

No person less than twenty-one (21) years of age shall purchase, attempt to purchase or possess cigarettes, other tobacco products, alternative nicotine products, vapor products, or rolling papers unless such person is an employee of a seller of cigarettes or tobacco products and is in such possession to effect a sale in the course of employment or an employee of the Division of Liquor Control for enforcement purposes pursuant to Subsection (5) of Section 407.934, RSMo.

Any person less than twenty-one (21) years of age shall not misrepresent his/her age to purchase cigarettes, tobacco products, alternative nicotine products, vapor products, or rolling papers.

Any person who violates the provisions of this Section shall be penalized as follows:

For the first violation, the person is guilty of an infraction and shall have any cigarettes, tobacco products, alternative nicotine products, vapor products, or rolling papers confiscated;

For a second violation and any subsequent violations, the person is guilty of an infraction, shall have any cigarettes, tobacco products, alternative nicotine products, vapor products, or rolling papers confiscated and shall complete a tobacco education or smoking cessation program, if available.

[1]

Editor's Note: Ord. No. 6466 also changed the title of this Section from "Minors Prohibited From Purchase or Possession of Tobacco — Misrepresentation of Age" to "Minors Prohibited From Purchase or Possession of Tobacco Products, Alternative Nicotine Products, Vapor Products Or Rolling Papers — Misrepresentation of Age."

Section 215.640 Retail Sales Tax License Required For Sale Of Tobacco Products, Alternative Nicotine Products, Vapor Products Or Rolling Papers

[Ord. No. 6466 § 1, 1-10-2017[1]; Ord. No. 6475 § 1, 3-28-2017]

No person shall sell cigarettes, tobacco products, alternative nicotine products, vapor products, or rolling papers unless the person has a retail sales tax license and a business license authorizing such sales from the City of Clayton.

[1]

Editor's Note: Ord. No. 6466 also changed the title of this Section from "Retail Sales Tax License Required For Sale of Tobacco Products" to "Retail Sales Tax License Required For Sale of Tobacco Products, Alternative Nicotine Products, Vapor Products Or Rolling Papers."

Section 215.650 Required Sign Stating Violation Of State Law To Sell Tobacco To Minors Under Age Twenty-One— Display Of Sign Required Where

[Ord. No. 6475 § 1, 3-28-2017]

The owner of an establishment at which tobacco products or rolling papers are sold at retail or through vending machines shall cause to be prominently displayed in a conspicuous place at every display from which tobacco products are sold and on every vending machine where tobacco products are purchased a sign that shall:

Contain in red lettering at least one-half (1/2) inch high on a white background the following:

"IT IS A VIOLATION OF LAW FOR CIGARETTES OR OTHER TOBACCO PRODUCTS TO BE SOLD OR OTHERWISE PROVIDED TO ANY PERSON UNDER THE AGE OF TWENTY-ONE OR FOR SUCH PERSON TO PURCHASE, ATTEMPT TO PURCHASE OR POSSESS CIGARETTES OR OTHER TOBACCO PRODUCTS"; and

Include a depiction of a pack of cigarettes at least two (2) inches high defaced by a red diagonal diameter of a surrounding red circle and the words "Under 21."

Section 215.660 Restrictions On Sales Of Individual Packs Of Cigarettes

[Ord. No. 6475 § 1, 3-28-2017]

No person or entity shall sell individual packs of cigarettes or smokeless tobacco products unless such packs satisfy one (1) of the following conditions prior to the time of sale:

It is sold through a vending machine; or

It is displayed behind the checkout counter or it is within the unobstructed line of sight of the sales clerk or store attendant from the checkout counter.

Section 215.670 Proof Of Age Required — When Defense To Action For Violation Is Reasonable Reliance On Proof — Liability

[Ord. No. 6466 § 1, 1-10-2017; Ord. No. 6475 § 1, 3-28-2017]

A person or entity selling tobacco products, alternative nicotine products, vapor products, or rolling papers or distributing tobacco product, alternative nicotine product, or vapor product samples shall require proof of age from a prospective purchaser or recipient if an ordinary person would conclude on the basis of appearance that such prospective purchaser or recipient may be under the age of twenty-one (21) years.

The operator's or chauffeur's license issued pursuant to the provisions of Section 302.177, RSMo., or the operator's or chauffeur's license issued pursuant to the laws of any State or possession of the United States to residents of those States or possessions, or an identification card as provided for in Section 302.181, RSMo., or the identification card issued by any uniformed service of the United States, or a valid passport shall be presented by the holder thereof upon request of any law enforcement agent or any owner or employee of an establishment that sells tobacco, alternative nicotine products, vapor products, or rolling papers for the purpose of aiding the registrant, agent or employee to determine whether or not the person is at least twenty-one (21) years of age when such person desires to purchase or possess tobacco products, alternative nicotine products, vapor products, or rolling papers procured from a registrant. Upon such presentation, the owner or employee of the establishment shall compare the photograph and physical characteristics noted on the license, identification card or passport with the physical characteristics of the person presenting the license, identification card or passport.

Any person who shall, without authorization from the Department of Revenue, reproduce, alter, modify or misrepresent any chauffeur's license, motor vehicle operator's license or identification card shall be deemed guilty of a misdemeanor.

Reasonable reliance on proof of age or on the appearance of the purchaser or recipient shall be a defense to any action for a violation of Subsections (A), (B) and (C) of Section 215.620 of this Article. No person shall be liable for more than one (1) violation of Subsections (B) and (C) of Section 215.620 on any single day.

Section 215.680 Smoking Prohibited in Public Places — Responsibilities of Proprietors and Others — Exceptions

[CC 1970 §17-36; Ord. No. 4645 §§1—5, 7-26-1988; Ord. No. 4647 §1, 8-9-1988; Ord. No. 6081 §1, 7-14-2009; Ord. No. 6139 §1, 2-22-2011]

Purpose. It is the purpose of this Section to promote the health, safety and welfare of the citizens of the City of Clayton by decreasing exposure to secondhand smoke; and to create smoke-free environments for workers, patrons and visitors to places of employment and all other public places within the City.

Definitions. The following words, terms and phrases, when used in this Section, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning:

BAR

An area which is primarily devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages.

BUSINESS

A sole proprietorship, partnership, joint venture, corporation or other business entity, either for-profit or not-for-profit, including retail establishments where goods or services are sold; professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered, and private clubs.

CIGAR BAR

An establishment with a permit to sell alcoholic beverages that generates twenty-five percent (25%) or more of its quarterly gross revenue from the sale of cigars and/or rental of humidor space, has a humidor on the premises and does not allow minors to enter the premises. Revenue generated from other tobacco sales, including cigarette vending machine sales, shall not be used to determine whether an establishment satisfies the definition of a cigar bar.

CITY

City of Clayton, Missouri.

EMPLOYEE

Any person who performs services for an employer, with or without compensation.

EMPLOYER

A person, partnership, association, corporation, trust or other organized group of individuals, including the City or any agency thereof, which utilizes the services of one (1) or more employee.

ENCLOSED AREA

A space bound by walls (with or without windows or screens) substantially from the floor to the ceiling and enclosed by doors including, but not limited to, offices, rooms, all space therein screened by partitions which do not extend to the ceiling or are not solid, "office landscaping" or similar structures and hallways.

PERMANENTLY DESIGNATED

A hotel or motel guest sleeping room or suite that may be designated as a smoking room, with such designation being changeable only one (1) time a year.

PLACE OF EMPLOYMENT

Any enclosed area under the control of a public or private employer which employees normally frequent during the course of employment including, but not limited to, work areas, employee lounges and restrooms, conference rooms and classrooms, employee cafeterias and hallways. A private residence is not a "place of employment" unless it is used as a child care, adult day care or health care facility.

PRIVATE CLUB

A building or portion of a building permanently and exclusively occupied by a not-for-profit organization incorporated under the laws of the State of Missouri for fraternal or social purposes or for a congressionally chartered veterans' organization which has a defined membership and restricts admission to members of the club and their guests and which has no "employees" and is not a "place of employment" as those terms are defined in this Section. "Private club" shall not include an establishment that is open to members of the general public upon payment of a nominal fee. A private club shall not be considered a "public place" except when it is the site of a meeting, event or activity that is open to the public.

PUBLIC PLACE

Any enclosed or other area to which the public is invited or in which the public is permitted including, but not limited to, banks, educational facilities, reception areas, health facilities, laundering facilities, public transportation facilities, reception areas, production and marketing establishments, retail service establishments, retail stores, theaters and waiting rooms. A private residence is not a "public place" unless it is used as a child care, adult day care or health care facility.

RESTAURANT

An eating establishment including, but not limited to, coffee shops, cafeterias, sandwich stands and private and public school cafeterias, which provides food to the public, guests or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere. The term "restaurant" shall include a bar and lounge area within the restaurant.

SERVICE LINE

Any indoor or outdoor line at which one (1) or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money.

SHOPPING MALL

An enclosed public walkway or hall area that serves to connect retail or professional establishments.

SMOKING

Inhaling, exhaling, burning or carrying any lighted or heated cigar, cigarette, pipe or other tobacco product.

SPORTS ARENA

Sports pavilions, gymnasiums, health spas, boxing arenas, outdoor and indoor swimming pools, outdoor athletic fields, outdoor and indoor roller and ice skating rinks, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition or witness sports events.

Prohibition Of Smoking In Enclosed Places Of Employment And Other Public Places.

The possession of lighted or heated smoking materials in any form including, but not limited to, the possession of lighted or heated cigarettes, cigars, pipes or other tobacco products shall be prohibited in all enclosed places of employment within the City.

Elevators in public buildings;

Restrooms in public buildings;

Libraries, educational facilities, child care and adult day care facilities, museums, auditoriums, aquariums and art galleries;

Any health care facility, health clinic or ambulatory care facilities including, but not limited to: laboratories associated with the rendition of health care treatment, hospitals, nursing homes, doctors' offices and dentists' offices;

Any indoor place of entertainment or recreation including, but not limited to, gymnasiums, theaters, concert halls, bingo halls, arenas and swimming pools;

Service lines;

Facilities primarily used for exhibiting a motion picture, stage, drama, lecture, musical recital or other similar performance;

Shopping malls or retail establishments;

Indoor and outdoor sports arenas;

Restaurants, including lounge and bar areas, except outdoor dining areas;

Convention facilities;

All indoor public areas and waiting rooms of public transportation facilities including, but not limited to, bus and mass transportation facilities;

Any other area used by the public or serving as a place of work;

Every room, chamber, place of meeting or public assembly, including school buildings under the control of any board, council, commission or committee including, but not limited to, joint committees or agencies of the City or any political subdivision of the State during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the City;

All enclosed facilities owned by the City;

Rooms in which meetings or hearings open to the public are held, except where such rooms are in a private residence;

Sidewalks, driveways and other open areas within fifteen (15) feet of the entry to any building owned or occupied by the City of Clayton or within fifteen (15) feet of the entry to any building open to the public; provided however, that this entryway prohibition shall not apply within outside dining areas where smoking is permitted or to entries that are located less than fifty (50) feet from another public entry.

No person shall dispose of smoking waste or place or maintain a receptacle for smoking waste in an area in which smoking is prohibited under this Section.

Responsibilities Of Proprietors, Owners And Managers.

A person having control of a place listed in this Section shall not knowingly permit, cause, suffer or allow any person to violate the provisions of these regulations. It shall be an affirmative defense to an alleged violation of this Subsection that the person having control of a place has asked that the lighted or heated cigarette, cigar, pipe or other tobacco product be extinguished and asked the person to leave the establishment if that person has failed or refused to extinguish the lighted or heated cigarette, cigar, pipe or other tobacco product.

A person having control of a place shall clearly and conspicuously post "No Smoking" signs or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) near all entrances where smoking is prohibited by this Section. Such signage shall consist of letters not less than one (1) inch in height.

It shall be the responsibility of employers to provide smoke-free workplaces for all employees.

All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employee.

Exceptions To Smoking Restrictions. Notwithstanding any other provision of this Section to the contrary, the following shall not be subject to the smoking restrictions of this Section:

Private residences, not serving as enclosed places of employment or enclosed public places;

Private clubs not serving as enclosed places of employment or enclosed public places as per the definitions herein contained;

Performers on stage in a theatrical production, where smoking is required as part of the production;

Private and semi-private rooms in nursing homes and long-term care facilities the residents of which are all smokers and have all requested the management of the facility to be placed in a room where smoking is permitted;

Retail establishments where more than seventy percent (70%) of the volume of trade or business carried on is the sale of tobacco and tobacco-related products;

Hotels and motels may permanently designate twenty percent (20%) of guest sleeping rooms or suites as smoking rooms. Neither all nor any part of a ballroom, dining room, banquet hall, lounge, lobby or other common area of a hotel or motel may be permanently or temporarily designated as being a room in which smoking is allowed for any purpose related to this Section. A hotel or motel may only change the specific rooms that are designated as smoking rooms once during any twelve (12) month period;

Cigar bar, provided such entity is in operation on or before the date of passage of this Section and provided that smoke does not infiltrate into areas where smoking is otherwise prohibited. Neither all nor any part of a ballroom, dining room, banquet hall, lounge, lobby or other common area of a hotel or motel may be permanently or temporarily designated as being part of a cigar bar for any purpose related to this Section.

Section Not To Preclude More Extensive Smoking Prohibitions. Nothing in this Section shall be construed or applied in such a manner as to interfere with or prohibit a property owner, business operator or public entity, including the City, from more broadly prohibiting smoking on or about their property or from prohibiting smoking in areas, at times, or under conditions which do not fall within the prohibitions established by this Section.

Businesses Existing When Smoking Restrictions Enacted. Businesses existing as of the date of enactment of this Section shall be required to fully comply with the provisions of this Section no later than July 1, 2010. Businesses and other facilities covered by these regulations opening to the public after the date of passage of this Section shall comply with the restrictions provided herein immediately.

Notice. Notice of the provisions of this Section shall be given to all applicants for a business license in the City of Clayton.

Penalty For Violation Of This Section. Any person, firm or corporation who violates the provisions of this Section shall be deemed guilty of an ordinance violation and punished as provided in Section 100.110 of this Code of Ordinances.

Section 215.681 Smoking Prohibited On City Property

[Ord. No. 6118 §1, 8-24-2010; Ord. No. 6251 §1, 1-8-2013]

Definitions. The definitions set forth in Section 215.680, above, shall also apply to such terms when used in this Section.

Prohibition Of Smoking On City Property. The possession of lighted or heated smoking materials in any form, including, but not limited to, the possession of lighted or heated cigarettes, cigars, pipes or other tobacco products, is prohibited in or on any property or premises owned or leased for use by the City of Clayton, including buildings, grounds, parks, playgrounds, sports arenas and facilities, playing fields, parking lots and parking structures.

Exceptions. The prohibitions of this Section shall not apply to:

Streets, alleys, rights-of-way and sidewalks other than sidewalks and pedestrian paths in parks; provided however, that the City Manager may suspend this exception and order that the smoking prohibition be applied to streets, alleys, sidewalks and other public ways where community events, fairs, festivals, neighborhood events and similar public gatherings are being held during the period of such events if the City Manager determines that prohibiting smoking during the event could reasonably be expected to enhance attendance, participation or enjoyment of the event, or that such a prohibition could make cleaning City property after the event less burdensome by reducing litter at the event site; and

Property, buildings or parts of buildings owned by the City but leased to private parties; and

Areas on City property designated by the City Manager for smoking to accommodate employees and visitors, if any such areas are so designated from time to time; and

Areas of park property designated by the City Manager for smoking purposes in association with special events, if requested by the sponsor thereof.

Provided, however, that smoking shall not be allowed in any location exempted from application of the prohibition of this Section if such location comes within the prohibitions or restrictions specified under other applicable regulations. Specifically, nothing in this Section shall be construed or applied so as to conflict with or limit in any way the provisions of the City's general smoking prohibitions in Section 215.680, any City personnel or workplace regulations or standards, or any lease entered into by the City as lessor which may contain a smoking prohibition.

Section 215.685 Restrictions On The Smoking Of Marijuana.

[Ord. No. 6835, 5-9-2023]

Definitions. The definitions set forth in Section 215.680, above, shall also apply to such terms when used in this Section with the exception of the term “Smoking,” which when used in this Section shall mean: inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, pipe, preroll, or device which contains marijuana in any manner, form, or amount, as well as any marijuana-infused product.

Additional Definitions. The following words, terms, and phrases, when used in this Section, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning:

MARIJUANA or MARIHUANA

Cannabis indica, Cannabis sativa, and Cannabis ruderalis, hybrids of such species, and any other strains commonly understood within the scientific community to constitute marijuana, as well as resin extracted from the marijuana plant and marijuana-infused products. "Marijuana" or "marihuana" do not include industrial hemp, as defined by Missouri Statute, or commodities or products manufactured from industrial hemp.

MARIJUANA-INFUSED PRODUCTS

Products that are infused, dipped, coated, sprayed, or mixed with marijuana or an extract thereof, including, but not limited to, products that are able to be vaporized or smoked, edible products, ingestible products, topical products, suppositories, and infused prerolls.

Marijuana shall not be smoked in any place where the smoking of tobacco is prohibited pursuant to Sections 215.680 or 215.681 of this Chapter.

Marijuana and marijuana-infused products shall not be smoked or consumed in any form by any person operating or in physical control of any motor vehicle or other motorized form of transportation in the City.

No person shall smoke marijuana within a motor vehicle or other motorized form of transportation while it is being operated within the City.

A person who violates this Section shall be subject to a civil penalty not exceeding one hundred dollars ($100.00).