Chapter 78A. Tobacco Vending Machine

CHAPTER 78A TOBACCO VENDING MACHINES

§78A.1. Definitions.

§78A.2. Prohibition of Tobacco Sales to Minors.

§78A.3. Sale from Vending Machines and Free Standing Displays Prohibited.

§78A.4. Removal of Vending Machines.

§78A.5. Waiver.

§78A.6. Penalties.

§78A.7. Enforcement.

§78A.8. Repealer.

§78A.9. Severability.

§78A.10. When Effective.

[HISTORY: Adopted by the Township Council of the Township of Gloucester on 08-26-96 by Ord. O-96-38. Amendments noted where applicable.]

Be it ordained by the Township Council of the Township of Gloucester, in the County of Camden, State of New Jersey, as follows:

§78A.1.DEFINITIONS

a) Tobacco Product - Any product made from the tobacco plant or containing tobacco leaf, for the purpose of smoking, chewing, inhaling, or other personal use, including, but not limited to cigarettes, cigars, pipe tobacco, chewing tobacco, snuff and dipping tobacco.

b) Tobacco Vending Machine - Any mechanical, electrical or electronic self-service device which, upon insertion of money, tokens or other form of payment, dispenses tobacco or tobacco products, either exclusively or as one kind of available item.

c) Lock-out Device - Any mechanical device, attached to a tobacco vending machine, which is electronically operated by a third party to control the sale of tobacco products.

d) Freestanding Display - Any display promotion of tobacco products in any area of a store not specifically behind a sales counter and within the grasp of the public so as to be a self service.

e) Person - As used herein, the term "Person" shall include any person, firm, corporation or association in whose place of business or employment tobacco products are offered for sale.

§78A.2. PROHIBITION OF TOBACCO SALES TO MINORS

It shall be unlawful for any person:

a) to sell or permit to be sold, or offer to sell any tobacco product to any individual without requesting and examining identification from the purchaser positively establishing the purchaser's age as eighteen (18) years of age or greater, unless the seller has some other conclusive basis for determining the buyer is over the age of eighteen (18) years or;

b) to sell or permit to be sold any tobacco product to a person under eighteen (18) years of age.

c) a six-inch-by eight-inch sign shall be posted in a conspicuous place near each cash register in all retail establishments which sell tobacco products stating: "Sale of tobacco products to minors under the age of eighteen (18) is prohibited by law. Legal proof of age must be shown".

§78A.3. SALE FROM VENDING MACHINES AND FREE STANDING DISPLAYS PROHIBITED

In view of the indiscriminate sales of tobacco products to minors by automatic vending machines, all tobacco vending machines are hereby prohibited in theTownship of Gloucester. It shall be unlawful for any person, to sell or offer to sell any tobacco product through a tobacco vending machine, without a waiver as provided herein, or free standing display in the Township of Gloucester.

§78A.4. REMOVAL OF VENDING MACHINES

All tobacco vending machines made unlawful by the terms of this ordinance shall be removed within sixty (60) days from the effective date of this Ordinance unless a waiver is granted as provided for herein.

§78A.5. WAIVER

A. The intent of this Section is to permit the vending of tobacco products through tobacco vending machines only under very limited circumstances. Generally, those areas are limited to the bar areas of bars, taverns and restaurants.

B. The owner of a bar, tavern, restaurant or other establishment which has a valid distribution or consumption liquor license may obtain a waiver from the prohibitions contained in this Ordinance provided that the bar, tavern, restaurant or other establishment, by written policy, bars access by minors to the bar area at all times; a bar or tavern which has teenage events at any time including, but not limited to, events at which only non-alcoholic beverages are served shall not be deemed to have such a policy. The written policy shall be prominently displayed in the bar tavern or restaurant bar area.

C. Qualification for Waiver:

(1) The bar, tavern, restaurant, hotel or other facility must have a valid distribution or consumption liquor license.

(2) A restaurant, hotel or other facility must have a distinct area, separate and apart from the restaurant or hotel, in which the liquor is being served (e.g. bar area). Liquor must be served from this area but may be consumed in the restaurant area.

(3) The vending machine for which the waiver is sought shall be not less than ten (10) feet from all public entrance or exit ways and shall be within fifteen (15) feet of the bartender or cashier station within the bar area, and within the direct visual supervision of the bartender or cashier within the bar area. There shall be no full wall impediment, glass or otherwise, between the bartender or cashier and the vending machine.

(4) The tobacco vending machine shall be equipped with a "lock- out" device in which:

(a) The lock-out device allows the location attendant (either bartender or cashier) to control the sale of tobacco products in accordance with local laws by blocking the vending mechanism.

(b) The attendant must be approached by the customer before the machine will vend.

(c) The tobacco vending machine shall be under the direct visual observation of the person operating the control button or switch of the locking device.

(d) The attendant pushes the remote control button to allow to vend.

(e) The lock-out device automatically resets to prevent the next vend. There can be no multiple sales.

(f) The control button or switch on the locking device shall be within fifteen (15) feet of the tobacco vending machine it controls. The control button or switch shall be located in an area not directly accessible to non-employees of the retail or other establishment.

(g) Access to the interior of the machine is controlled only by the vending machine company.

(h) The lock-out device is equivalent or equal to a "WICO" lock-out device.

(5) The cost of the lock-out device is to be born by the vending machine company and must be installed by a competent service person.

(6) Under no circumstances will more than two (2) vending machine waivers be issued on any liquor license. No more than two tobacco vending machines meeting all the requirements and restrictions of this Ordinance shall be allowed in any single bar, tavern, restaurant or other establishment. Where two tobacco vending machines are to be installed, separate control buttons or switches no closer than 24 inches apart shall be installed for each tobacco vending machine to prevent the inadvertent activation of the tobacco vending machine other than the one from which a purchase is desired to be made.

D. Licensing of lock-out devices on tobacco vending machines

a. All lock-out devices required on tobacco vending machines shall be licensed. Licenses shall be issued by the Township Clerk if:

(1) All the requirements of Section (4) of the Ordinance, as amended, have been met.

(2) The proper fee is paid. A non-refundable licensing fee for each tobacco vending machine locking device shall be One Hundred Dollars ($100.00) per application per machine, payable in advance. In no case shall any portion of said license fee be refunded. Replacement of any tobacco vending machine or lock-out device during the course of the waiver period shall not result in an additional fee. In the event of a transfer of ownership of the premises or liquor license, a new waiver application and license fee shall be required.

E. The procedure for waiver application and issuance shall be as follows:

(a) Application for a waiver hereunder shall be filed in writing with the Township Clerk on a form to be provided by the Clerk, and shall specify:

(1) The name and address of the owner of the bar, tavern, restaurant ("the proprietor") or other establishment which seeks a waiver, and if a firm, corporation, partnership or association, the principal officers thereof and their addresses.

(2) The address of the bar, tavern, restaurant or other establishment for which the waiver is sought.

(3) The liquor license number and type with expiration date(s) of same.

(4) The name and address of the owner of the tobacco vending machine, if other than the proprietor.

(5) The applicant shall submit an affidavit that access to use the tobacco vending machine by minors is and will be prohibited in the bar, tavern or liquor serving area/bar area of a restaurant at all times under all circumstances (including non-alcoholic events for teenagers) by written policy of the owner of the premises; and have appended to it a copy of that written policy and shall indicate where in the bar, tavern or restaurant the written policy is prominently displayed.

(a) Variance of location. Should the physical layout or structure of the bar, tavern, restaurant or other facility preclude the distance requirement of Paragraph (5) above, the applicant may apply for a written variance. The Clerk, or designee, shall then inspect the establishment and make a reasonable determination if the proposed location substantially complies with the requirements of this Ordinance.

(6) In the case of an application for a waiver pursuant to this section, the affidavit shall further declare:

(a) that the tobacco vending machine is located not less than ten (10) feet distance from the nearest entrance to or exit from the restricted bar area, is located within the distinct liquor serving area, and append thereto a sketch showing the location of the machine and the distances, and

(b) that the machine will be under the direct visual supervision of the applicant's cashier or bartender in the liquor serving area and will be not less than fifteen (15) feet from the cashier or bartender station.

(7) The proper license fee shall accompany such a waiver application. The waiver shall issue if the Township Clerk finds that the locational standards of paragraph (6) are satisfied, that the affidavit is satisfactory (see paragraph 4 above), that the establishment in which the lock-out tobacco vending machine is to be placed has a valid liquor license (distribution or consumption) and that the required fees have been paid.

(8) The waiver shall specify the precise location in the premises for which it is issued. All waivers under this article shall expire 36 months after their issuance. The waiver shall be posted in a conspicuous place in the establishment of the applicant in close proximity to the tobacco vending machine. Such waiver shall be non- assignable and non-transferable, and shall apply only to the premises and location in the bar, tavern, restaurant or other facility for which such waiver is issued. Should the establishment lose, forfeit, transfer, or sell its distribution or consumption liquor license, the waiver shall automatically be revoked without refund.

(9) Appeal. Should the applicant be denied a waiver, the applicant may appeal to the Township Council for a final determination.

(10) The governing body shall have the right to revoke any waiver issued hereunder for failure to continue at all times to satisfy the locational standards of this Section, to admit at any time a minor or to comply with the terms of the waiver, for submission of materially inaccurate or incorrect information in an application, or for failure to comply with the lock-out requirements outlined in Section (4) above or if the establishment loses transfers, forfeits or sells its liquor license.

F. Tampering with tobacco vending machines or locking devices

It shall be unlawful for any person including the distributor responsible for the installation, operation, or maintenance of a tobacco vending machine to remove, disconnect or otherwise disable the locking device for the purpose or with the result that the prospective customers of the tobacco vending machine can purchase tobacco products without the locking device controlling each individual sale.

G. Seizure of unauthorized tobacco vending machines

A tobacco vending machine which is not installed or operating in accordance with this ordinance may be seized, forfeited and disposed of in the same manner as other unlawful property seized under N.J.S.A. 2C:64-1 et seq. Any machine so seized may be returned to its owner upon payment of the reasonable costs incurred in connection with the seizure and any fine imposed by the Municipal Court.

§78A.6. PENALTIES

a) Any person violating Section (2) of this Ordinance shall be subject to a maximum fine of $100.00 for the first violation, $250.00 for the second violation, $500.00 for the third violation, and $1,000.00 for the fourth and each consecutive violation.

b) Any person violating Section (3) of this Ordinance shall be subject to a fine of $250.00 per day per violation. Each day on which such a machine is owned, operated, rented or permitted on the premises shall be deemed a separate violation and shall result in an additional fine.

c) Both the individuals permitting the sale of tobacco products to a minor in violation of this Ordinance and the owner of the premises may be subject to the penalties described above.

§78A.7. ENFORCEMENT

The municipal police department or any citizen may enforce this ordinance by filing a complaint in municipal court provided that no citizen may file a complaint prior to sixty (60) days after the date this ordinance takes effect.

§78A.8. All ordinances and provisions thereof inconsistent with the provisions of this Ordinance shall be and are hereby repealed to the extent of such inconsistency.

§78A.9. If any section, subsection or part, clause or phrase of this Ordinance shall be declared invalid by judgment of any court of competent jurisdiction, such section, subsection, part, clause or phrase shall be deemed to be severable from the remainder of the ordinance.

§78A.10. This Ordinance shall take effect twenty (20) days after final passage and publication as required by law.