Amending Section 9-633 of The Philadelphia Code, entitled "Sale of Electronic Smoking Devices and Unapproved Nicotine Delivery Products," to update definitions and to provide for additional penalties, enforcement, and compliance options, all under certain terms and conditions.

THE COUNCIL OF THE CITY OF PHILADELPHIA HEREBY ORDAINS

Section 1. Section 9-633 of The Philadelphia Code is hereby amended to read as follows:

§ 9-633

.

Sale of Electronic Smoking Devices and Unapproved Nicotine Delivery Products

.

[a]

or

any retail business, to sell or

furnish by gift, purchase or other means any electronic smoking device or unapproved nicotine delivery product to any person under the age of

twenty-one (21)

years.

(b) No person

or

retail business

shall sell any electronic smoking device or unapproved nicotine delivery product unless the purchaser either:

(.1) It shall be a defense to a charge of unlawful sale to person under

twenty-one (21)

years of age that the seller reasonably relied on photographic identification pursuant to the preceding subsection (b), notwithstanding the fact the identification relied upon is subsequently proven to be fake. Reliance will be presumed not reasonable if the identification does not contain all of the following: a photo likeness, birth date, expiration date and signature; or if it contains bumps, tears or other damage.

(.2) It shall not be a defense to a charge of unlawful sale to a person under

twenty-one (21)

years of age that the purchaser reasonably appeared to be at least twenty-seven years of age.

(.1) Every retail

business

[outlet] that sells electronic smoking devices or unapproved nicotine delivery products shall post in a conspicuous place, clearly visible from any point of sale, a Warning Sign, as described below.

(.2) The Warning Sign shall state the following: "SALE OF ELECTRONIC SMOKING DEVICES AND UNAUTHORIZED NICOTINE DELIVERY PRODUCTS TO PERSONS UNDER

21

[18] YEARS OF AGE IS PROHIBITED BY LAW. PHOTO I.D. WILL BE REQUIRED. THIS LAW WILL BE STRICTLY ENFORCED." Such sign shall be printed on a white card in red letters at least one-quarter inch in height, or in such other format as the Department of Licenses and Inspections shall allow by regulation. This warning may be combined with the warning required by subsection

9-622 <https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0-0-0-277402>

(1)(d), in a single statement.

It shall be unlawful for any person[, including]

or

any retail

business

[dealer], to sell or offer for sale any electronic smoking device or unapproved nicotine delivery product, other than in the package, box, carton or other container provided by the manufacturer, importer or packager which bears all applicable health warnings required by federal law.

or

retail

business

[dealer, who]

that

sells any electronic smoking devices or unapproved nicotine delivery products, shall store or display such products in a locked case or in a storage case or display accessible only to the seller.

(.1) This subsection shall not apply to open or free standing counter-top displays, provided that the counter-top display is within three (3) feet of a staffed and operational check out register.

or retail business

selling electronic smoking devices or unapproved nicotine delivery products shall allow anyone other than the seller or the seller's agent to physically remove any such product or its package from its storage or display case.

Notwithstanding the foregoing, subsection (3) relating to out-of- package sales and subsection (4) relating to self-service sales shall not apply to any retail

business

[store known as a]

that meets the definition of

Specialty e-cigarette establishment.

,

any Department of Public Health or Department of Licenses and Inspections inspector, becomes aware of a violation of this Section, such officer shall hand or deliver to the violator a printed notice of

violation (code violation notice)

.

If the violator is a retail

business

[outlet], the officer shall hand or deliver the notice to the manager of the

retail business

[outlet] or an on-site supervisor. Such notice shall bear the date, time and nature of the violation, when known; the identity and address of the violator; the amount to be remitted in response to the notice; and the penalty which can be imposed by the court for the violation; and shall be signed by the person issuing the notice and shall bear the badge number or other official identification number of the officer issuing the notice.

pay two hundred fifty dollars ($250), admit the violation, and waive appearance before a Municipal Court Judge. The notice of violation shall contain an appropriate statement for signature by the violator for the purpose of admitting the violation and waiving a hearing, and shall be returned by the violator when the stipulated payment is remitted. Payment of the fine alone shall constitute admission of the violation, whether or not the violator signs the statement.

(ii)

Second offense: one thousand dollars ($1,000).

(iii)

Third or subsequent offense: two thousand dollars ($2,000).

[(c)]

retail business

[who]

that

receives a notice of violation fails to make the prescribed payment within ten (10) days of the issuance of the notice of violation, a code enforcement complaint shall be issued for such violation in such manner as provided by law.

[(d)]

retail business

named in a code enforcement complaint is found to have violated any provision of this Section or fails to appear on the date set for hearing, such [person]

retail business

shall be subject to a maximum fine of two thousand dollars ($2,000) for each such violation [, or such lesser fine (not less than three hundred dollars ($300))] as the court deems appropriate given the relative willfulness or repetitiveness of the violation, plus the imposition of court costs. Such a complaint may be issued irrespective of whether a notice of violation was previously issued for such violation.

[(e)]

retail business

location [or within a single business establishment], or of a combination of three or more violations of this Section or subsections 9-622(1) - (4), within a two-year period, the

retail business

[person] shall also be subject, depending on the severity of the violations, to an order of the Department to either (A) cease the sale of electronic smoking devices, unapproved nicotine delivery products, and cigarettes; or (B) cease operations. Such order shall be for a period not less than forty-eight (48) hours and not to exceed one year, at the Department's discretion, based on the severity of the violations. For purposes of this subsection

retail business

location [or within a single business establishment], even if ownership of the location or

retail

business has been transferred between the time of violations, unless the transfer was pursuant to an arm's length transaction for fair market value between two unrelated persons or unaffiliated companies.

SECTION 2. This Ordinance shall take effect in thirty (30) days.

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Explanation:

[Brackets] indicate matter to be deleted.

Italics

indicate new matter added

.

End