Cleveland City Council Ordinance For Flavored Tobacco Ban
Cleveland City Council Ordinance For Flavored Tobacco Ban
Cleveland City Council Ordinance For Flavored Tobacco Ban
WHEREAS, it is estimated that 95% of all adult smokers began smoking before
dependence and greater intensity and persistence of smoking beyond adolescence and
WHEREAS, the parts of the brain most responsible for decision making, impulse
control, sensation seeking, and susceptibility to peer pressure continue to develop and
change through young adulthood, and adolescent brains are uniquely vulnerable to the
WHEREAS, data from the 2021 National Youth Tobacco Survey on the use of e-
cigarettes show that over 11% of, or more than two (2) million, U.S. middle and high
school students reported current e-cigarette use, where almost 40% used e-cigarettes on
a frequent basis and almost 85% of e-cigarette users reported using flavored products;
and
cigarettes; and
Black Americans, and the Food and Drug Administration (FDA) notes that a ban on
menthol cigarettes would save the lives of 92,000 to 238,000 African Americans; and
WHEREAS, as acknowledged by the Tobacco Free Ohio Alliance, the City also
distributed, which have an undeniable effect on tobacco use and other factors that
saturation of urban communities with the health, social, cultural, and environmental ill-
WHEREAS, heart disease and cancer, both tobacco-related diseases, are the top
two leading causes of death among African Americans. African Americans, and
particularly males, have experienced lung cancer at higher rates than Whites for many
years; and
compared with 30% of White smokers attributed to the tobacco industry’s targeted
WHEREAS, a local licensing system for tobacco retailers to help combat the sale
of tobacco products to those underage is necessary to protect the public health, safety,
and welfare of our residents. A licensing system allows for local enforcement of tobacco-
related laws. Licensing laws, when actively enforced, have been effective in reducing the
CHAPTER 235A
TOBACCO PRODUCT SALES LICENSING
For the purpose of this chapter, the following definitions shall apply:
(a) “Authorized Agent” means an entity with which the Director has
contracted for the community outreach and education provisions contained in this
chapter.
(c) “Department” means the Department of Public Health of the City or its
Authorized Agent.
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Ordinance No. 184-2023
(d) “Director” means the Director of the Department of Public Health or his or
her designee.
(f) “Electronic Smoking Device” means any device that may be used to
deliver any aerosolized or vaporized nicotine or any other substance to the person
inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe,
vape pen or e-hookah. Electronic Smoking Device includes any component, part, or
accessory of such a device, whether or not sold separately, and also includes any
substance intended to be aerosolized or vaporized by such device, whether or not the
substance contains nicotine. Electronic Smoking Device does not include drugs,
devices, or combination products authorized for sale by the U.S. Food and Drug
Administration, as those terms are defined in the Federal Food, Drug and Cosmetic
Act.
(h) “Flavored Tobacco Product” means any Tobacco Product that imparts a
taste or smell, other than the taste or smell of tobacco, that is distinguishable by an
ordinary consumer either prior to, or during the consumption of, a Tobacco Product,
including, but not limited to, any taste or smell relating to fruit, menthol, mint,
wintergreen, chocolate, cocoa, vanilla, honey, or any candy, dessert, alcoholic beverage,
herb, or spice.
(i) “Hookah” means a type of water pipe that is used to smoke Flavored
Shisha Tobacco Products, which has a long, flexible tube to draw aerosol through water.
This device has components that may include heads, stems, bowls, and hoses.
(j) “Hookah Bar” means a restaurant, tavern, brew pub, club, nightclub, bar,
or any food service operation or retail food establishment that generates revenue from
the sale for on-site consumption of Sisha Flavored Tobacco Products or Tobacco
Products used with a Hookah; provided, that the restaurant, tavern, brew pub, club,
nightclub, bar, or food service operation or retail food establishment has a valid
smoking exemption from the Ohio Department of Health pursuant to section 3794.03 of
the Revised Code and rule 3701-52-05 of the Ohio Administrative Code.
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Ordinance No. 184-2023
(n) “Tobacco Product(s)” means: (1) any product containing, made of, or
derived from tobacco or containing any form of nicotine that is intended for human
consumption or is likely to be consumed, whether smoked, heated, chewed, dissolved,
inhaled, absorbed, or ingested by any other means, including, but not limited to, a
cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus; (2) any Electronic
Smoking Device as defined in this section and any substances that may be aerosolized or
vaporized by such device, whether the substance contains nicotine; or (3) any
component, part, or accessory of (1) or (2), whether any of these contains tobacco or
nicotine, including, but not limited to, filters, rolling papers, blunt or hemp wraps, or
pipes. Tobacco Product does not include drugs, devices, or combination products
authorized for sale by the U.S. Food and Drug Administration, as those terms are
defined in the Federal Food, Drug and Cosmetic Act
(o) “Tobacco Retailer” means any individual, firm, partnership, joint venture,
association, joint stock company, corporation, unincorporated business entity, or any
other group acting as a unit that owns a business where Tobacco Products are available
for sale to the general public. Tobacco Retailer does not mean the employees or agents
of an owner of a business where Tobacco Products are available for sale to the general
public.
(a) Each Tobacco Retailer engaging in the sale of Tobacco Products shall
secure a tobacco retail sales license from the Commissioner of Assessments and
Licenses for each location where it sells Tobacco Products in the City before engaging or
continuing to engage in such business. An application for a tobacco retail sales license
shall be made to the Commissioner of Assessments and Licenses and shall contain the
full name of the applicant, the applicant’s business and personal address and telephone
number, the name of the business for which the tobacco retail sales license is sought, a
copy of the applicant’s valid vendor’s license from the Ohio Department of Taxation, if
applicable, the signed form described in division (f) below, and any additional
information the Commissioner of Environmental Health or the Director deems
necessary, such as a certificate of occupancy issued by the City.
(b) An application for a tobacco retail sales license may also be denied for the
reasons set forth in division (c) of Section 235A.07.
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Ordinance No. 184-2023
(d) A tobacco retail sales license may be renewed annually upon application
made prior to the expiration of the previous license and shall remain valid for a period
beginning with the date of issuance of the tobacco retail sales license and ending on the
thirty-first day of December following the date of the issuance of the tobacco retail sales
license unless sooner revoked under this chapter, unless the Tobacco Retailer has
outstanding fines imposed under this chapter, or unless the Tobacco Retailer to whom it
was issued discontinues business, in either of which case the holder of the tobacco retail
sales license shall immediately return it to the Commissioner of Assessments and
Licenses. A tobacco retail sales license shall not be transferred from one Tobacco
Retailer to another or from one location to another.
(e) The Tobacco Retailer shall conspicuously display the tobacco retail sales
license at all times and shall provide it to any person upon request. In the event of
mutilation or destruction of the tobacco retail sales license, a duplicate copy, marked as
such, shall be issued by the Commissioner of Assessments and Licenses upon
application accompanied by a fee set by the City’s Board of Control and updated from
time-to-time as necessary.
(g) No tobacco retail sales license shall be issued to a person under twenty-
one (21) years of age.
(a) The fee for a tobacco retail sales license shall be used to cover the
administrative cost for licensing, community outreach, education and training, retail
inspections, and compliance checks. The tobacco retail sales license fee should not
exceed the cost of the license administration, community outreach, education and
training, and enforcement program authorized by this chapter.
(b) The fee for a tobacco retail sales license shall be set by the City’s Board of
Control and updated from time-to-time as necessary. The fee is due at the time of
application and is not refundable.
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Ordinance No. 184-2023
(e) Exception for Flavored Shisha Tobacco Products. The prohibition under
division (d) does not apply to Flavored Shisha Tobacco Products when consumed on-site
in a Hookah Bar.
(b) All Tobacco Retailers must be open to inspection by the Department or its
Authorized Agent during regular business hours.
(c) All Tobacco Retailers may be subject to at least two (2) compliance checks
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Ordinance No. 184-2023
(d) The results of all compliance checks and inspections are to be published
on the Department’s web page at least annually.
(2) For a second violation within a thirty-six (36) month period, a fine
of $750 and a seven (7) day suspension of the applicable tobacco retail sales
license.
(3) For a third violation within a thirty-six (36) month period, a fine of
$1,000 and a thirty (30) day suspension of the applicable tobacco retail sales
license.
(4) For a fourth violation and each violation thereafter within a thirty-
six (36) month period, a fine of $1,000 and the applicable tobacco retail sales
license of the Tobacco Retailer shall be revoked.
(b) Each violation, and every day in which a violation occurs or continues,
shall constitute a separate offense. The determination that a violation has occurred shall
be in writing and mailed to the Tobacco Retailer by the Commissioner of Environmental
Health, no later than thirty (30) days from the date of the violation. The written notice
shall specify the chapter and section that the Tobacco Retailer violated. A civil penalty
imposed under division (a) above may be appealed to the Director in writing within
twenty (20) days from the date of the civil penalty. The Director shall have jurisdiction
to affirm or reverse. A person aggrieved by a final decision of the Director may further
appeal to the Board of Zoning Appeals within thirty (30) days after the Director’s
written decision.
(c) A tobacco retail sales license issued under this chapter may also be denied,
suspended, or revoked by the Commissioner of Assessments and Licenses, upon the
recommendation and order of the Commissioner of Environmental Health and through
written notice, should the Tobacco Retailer or Tobacco Retailer’s agent, employee, or
representative directly or indirectly:
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Ordinance No. 184-2023
(1) Sell Tobacco Products without a valid tobacco retail sales license;
(3) Have a tobacco retail sales license revoked within the preceding
twelve (12) months of the date of application for a tobacco retail sales license;
(d) All Tobacco Products shall be removed from the premises upon
suspension or revocation of a tobacco retail sales license. Failure to remove all Tobacco
Products shall constitute a separate violation punishable by a fine of $500.00 for each
and every day of noncompliance.
(e) A Tobacco Retailer that engages in the sale of Tobacco Products without a
valid tobacco retail sales license issued pursuant to this chapter shall be guilty of
distribution of Tobacco Products without a tobacco retail sales license, a misdemeanor
of the first degree and shall be fined not less than one hundred dollars ($100.00) and
not more than one thousand dollars ($1,000.00). If the offender previously has been
convicted of a violation of this section, then the Tobacco Retailer shall be denied a
tobacco retail sales license for a period of five (5) years.
The Director, or his or her Authorized Agent, shall engage in a continuing public
health education program to explain and clarify the purposes and requirements of this
chapter to Tobacco Retailers and the public. The program may include publication of a
brochure in writing and online for Tobacco Retailers to explain the requirements of this
chapter.
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Ordinance No. 184-2023
All fees and fines collected from licensing and infractions of this chapter are to be
deposited into the “Tobacco Enforcement and Education Fund" administered by the
Department to cover the administrative costs for licensing, community outreach,
education and training, retail inspections, and compliance checks.
The provisions of this chapter are severable, and if any provision, clause,
sentence, or paragraph of this chapter or the application thereof to any person or
circumstances are held by a court of competent jurisdiction to be unconstitutional or
otherwise invalid, such a ruling shall not affect the other parts of this chapter that can be
given effect.
read as follows:
(2) “Electronic smoking device” has the same meaning as in division (f)
of Section 235A.01 of these Codified Ordinances.
(3) “Sale” or “Sell” has the same meaning as in division (l) of Section
235A.01 of these Codified Ordinances.
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Ordinance No. 184-2023
(6) "Tobacco product" means any product that is made from tobacco,
including, but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco,
or snuff.
(8) "Young adult" means a person who is eighteen (18) years of age or
older, but under twenty-one (21) years of age.
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Ordinance No. 184-2023
least thirty (30) years of age, provided however, that such appearance the
individual appeared to be at least thirty (30) years of age shall not constitute a
defense in any proceeding alleging the sale of cigarettes, or tobacco products or
electronic cigarettes to an individual under eighteen (18) twenty-one (21) years of
age;
(5) (3) Give away, sell Sell or distribute cigarettes, or other tobacco
products, alternative nicotine products, or papers used to roll cigarettes in any
business that does not have posted in a conspicuous place a sign, in accordance
with division (c) of Section 235A.04 of these Codified Ordinances, rules of the
Department of Public Health stating that giving, selling or otherwise distributing
cigarettes or other tobacco products, alternative nicotine products or papers used
to roll cigarettes to a person under twenty-one (21) years of age is prohibited by
law;
(6) (4) Knowingly furnish any false information regarding the name, age,
or other identification of any person under twenty-one years of age child or young
adult with purpose to obtain cigarettes or other tobacco products, alternative
nicotine products, or papers used to roll cigarettes for that child or young adult
for that person under the age of twenty-one (21);
(7) (5) Manufacture, sell, or distribute in this City any pack or other
container of cigarettes or alternative nicotine products containing fewer than
twenty (20) cigarettes or any package of roll-your-own tobacco containing less
than six-tenths (0.6) of one (1) ounce of tobacco;
(9) (7) Sell or distribute other tobacco products in a smaller quantity than
was intended for retail when the product was packaged by the manufacturer.
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Ordinance No. 184-2023
(d) (c) No person shall sell or offer to sell cigarettes or other tobacco products, or
alternative nicotine products by or from a vending machine except in the following
locations:
(2) In any other place not identified in division (c)(1) of this section,
upon all of the following conditions:
(e) (d) The following are affirmative defenses to a charge under division
(b)(1) of this section:
(1) The parent, guardian, or legal custodian of the child a person under the
age of eighteen (18) has consented in writing to the child a person under the age
of eighteen (18) participating in the research protocol, or the young adult a
person over the age of eighteen (18), but under the age of twenty-one (21), has
consented in writing, on his or her own behalf, to participate in the research
protocol.
(2) The person who gave, sold, or distributed cigarettes, other tobacco
products, alternative nicotine products, or papers used to roll cigarettes to a child
or young adult under division (b)(1) of this section is a parent, spouse who is
twenty-one (21) years of age or older, or legal guardian of the child or young
adult.
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Ordinance No. 184-2023
(f) (e) It is not a violation of division (b)(1) or (2) of this section for a person to
give or otherwise sell or distribute to a child or young adult cigarettes, other tobacco
products, alternative nicotine products, or papers used to roll cigarettes while the child
or young adult a person under the age of twenty-one (21) cigarettes or tobacco products
while the person under the age of twenty-one (21) is participating in a research protocol
if all of the following apply:
(1) The parent, guardian, or legal custodian of the child a person under
the age of eighteen (18) has consented in writing to the child a person under the
age of eighteen (18) participating in the research protocol, or the young adult a
person the age of eighteen (18) or older, but under the age of twenty-one (21) has
consented in writing, on his or her own behalf, to participate in the research
protocol.
(3) The child or young adult The person under the age of twenty-one
(21) is participating in the research protocol at the facility or location specified in
the research protocol.
(g) (f) (1) Whoever violates division (b)(1), (3), (5), (6) or (7), (8), or (9) or
divisions division (c) or (d) is guilty of illegal distribution of cigarettes, other or
tobacco products, or alternative nicotine products. Except as otherwise provided
in this division, illegal distribution of cigarettes, other or other tobacco products,
or alternative nicotine products is a misdemeanor of the fourth degree. If the
offender has previously been convicted of a violation of division (b)(1), (3), (5),
(6) or (7), (8), or (9) or divisions division (c) or (d) of this section or divisions
(B)(1), (2), (4), or (5) or (C) of RC 2927.02, then illegal distribution of cigarettes,
other or other tobacco products, or alternative nicotine products is a
misdemeanor of the third degree.
(h) (g) Any cigarettes, other tobacco products, alternative nicotine products, or
papers used to roll cigarettes that are sold or distributed to a a person under twenty-one
years of age in violation of this section and that are used, possessed, purchased, or
received by a person under twenty-one years of age in violation of RC 2151.87 are
subject to seizure and forfeiture as contraband under RC Chapter 2981.
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Ordinance No. 184-2023
Cleveland, Ohio, 1976, as amended by Ordinance No. 737-15, passed December 7, 2015,
is repealed.
Section 4. That the amendment and repeal of existing Section 607.15 of the
passed December 7, 2015, and the enactment of new Sections 235A.01 through 235A.11,
shall be effective one hundred and eighty (180) days after the effective date of this
ordinance.
KR:nl
2-6-2023
FOR: Director Margolius
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Ord. No. 184-2023 REPORT
after second Reading
By Council Members Conwell and Griffin (by departmental request)
AN EMERGENCY ORDINANCE
To supplement the Codified Ordinances of Cleveland, Ohio, 1976, by enacting
new Sections 235A.01 through 235A.11, relating to tobacco retail licensing and
to amend Section 607.15 relating to the illegal distribution of cigarettes, other
tobacco products or alternative nicotine products.
CITY CLERK
CITY CLERK
PRESIDENT
CITY CLERK
APPROVED
MAYOR