Is your kiosk in Virginia Beach proper, and if so does this mean you are out of a job?
Sure they can... they work for the gov't.Can the AG or Health Dept make it's own definition of "smoke" that trumps the actual definition per the ordinance??
An e-cigarette is not a vaporizer. It's a cute catch phrase for them, but hardly accurate. Since it is virtually impossible for an e-cigarette to do what a vaporizer does. (you can't add your own plant matter) I would say no. e-cigarettes dont really fit into any category but their own. I have been against calling them pv's from the start.
On the other hand if the health department starts attempting to cite us for doing demos it could be a problem. If I am cited I can then take this fight to court and I am confident we would win. But that is problematic in and of itself. I need to be there every day to keep things running smoothly. My free time is limited. I have been advised that the FAQ is not legally binding by more then one attorney now, so I will operate based on that. The ban has been in effect since the first. I am assuming that if the FAQ was legit they would have cited us by now. I will keep you guys posted.
An e-cigarette is not a vaporizer. It's a cute catch phrase for them, but hardly accurate. Since it is virtually impossible for an e-cigarette to do what a vaporizer does. (you can't add your own plant matter) I would say no. e-cigarettes dont really fit into any category but their own. I have been against calling them pv's from the start.
True! It absolutely IS a vaporizer - despite the cute name the manufacturers came up for it.Actually.. an e-cigarette IS a vaporizer... but it is a LIQUID vaporizer... and cannot tolerate solids, which should exempt it from that law I think. I would have to read it.
You can't put plant matter in it. It is not drug paraphenalia. I am getting really sick of defending my right to come to work everyday.True! It absolutely IS a vaporizer - despite the cute name the manufacturers came up for it.
Main Entry: cig·a·rette
Variant(s): also cig·a·ret \ˌsi-gə-ˈret, ˈsi-gə-ˌ\
Function: noun
Etymology: French cigarette, diminutive of cigare cigar, from Spanish cigarro
Date: 1835
: a slender roll of cut tobacco enclosed in paper and meant to be smoked; also : a similar roll of another substance (as marijuana)
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Main Entry: va·por·iz·er
Pronunciation: \ˈvā-pə-ˌrī-zər\
Function: noun
Date: circa 1846
: one that vaporizes: as a : atomizer b : a device for converting water or a medicated liquid into a vapor for inhalation
Which definition describes our device??
You can't put plant matter in it. It is not drug paraphenalia. I am getting really sick of defending my right to come to work everyday.
You guys are on your own. The more atention I call to myself the more3 the chips seem to stack against me. It is not drug paraphenalia and does not violate smoking ordinances. E-cigs belong in a class of their own. I am done posting here.
Regardless of what Webster's dictionary says, the State of Virginia has it's OWN, LEGAL definition of "cigarette" and "tobacco." A "cigarette of any kind" still means a cigarette as defined by the State of Virginia. The State of Virginia defines a cigarette as containing tobacco.And here is a twist I didn't notice mentioned anywhere.
I based this on a reply I got today from Gary Hagy, the VA contact for the FAQ:
He referred to Websters definition of 'smoke'- the one he highlighted was:
3 : fume or vapor often resulting from the action of heat on moisture.
Here is what I'm about to reply with:
And "fume or vapor often resulting from the action of heat on moisture" would then have to include a persons exhaled breath in a cold environment - vapor resulting from the action of one's body heat on the moisture in their lungs. Therefore, any environment that has people working in a refrigerator or freezer; or an unheated environment in winter; or anywhere else cold enough to create vapor from the people's breath, would have to be closed since people would not be able to 'smoke' in those environments.
Doubt I'll get a further reply, but...
Below are my original email, his reply and my further response for anyone who wants to read it.
Respectfully,
-bogie
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ORIGINAL EMAIL:
Sent: Friday, December 04, 2009 4:20 PM
To: Hagy, Gary (VDH)
Subject: Smoking Ban
Your contact information was offered at the end of a FAQ regarding the Dec 1 subject matter.
My question is regarding this point in the FAQ:
*****
"Are electronic cigarettes banned under the new law?
Electronic cigarettes are considered cigarettes and are banned in the same locations affected by the new law."
*****
In light of the definition contained within the law:
*****
§ 15.2-2820. Definitions.
"Smoke" or "smoking" means the carrying or holding of any lighted pipe, cigar, or cigarette of any kind, or any other lighted smoking equipment, or the lighting, inhaling, or exhaling of smoke from a pipe, cigar, or cigarette of any kind."
*****
Nowhere in the full text of the law is the term "electronic" used - at all; let alone to define an "electronic cigarette" to be "considered cigarettes". If I missed this, I would appreciate having it pointed out to me.
There is simply no basis to conclude electronic cigarettes fall under the provisions of this law.
- an electronic cigarette is not "lighted"
- smoke is the result of combustion
---- an electronic cigarette has no combustion; therefore no smoke
- "electronic cigarette" is a term chosen to be used for one of many variations of personal vaporizing devices that only vaporize liquid into vapor similar to steam.
The FAQ comment should be removed and retracted.
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HIS REPLY RECEIVED TODAY:
Subject: RE: Smoking Ban
Date: Thu, 17 Dec 2009 16:19:33 -0500
From: Gary.Hagy@vdh.virginia.gov
As you point out in your Email the Indoor Clean Air Act defines smoke or smoking as:
the carrying or holding of any lighted pipe, cigar, or CIGARETTE OF ANY KIND, or any other lighted smoking equipment, or the lighting, inhaling, or EXHALING OF SMOKE FROM a pipe, cigar, or CIGARETTE OF ANY KIND.
This is very broad definition, particularly the language regarding cigarettes.
When the user puffs on an e-cigarette, he or she inhales a vapor that contains nicotine and then exhales a portion of the vapor. Websters dictionary defines smoke as 1 a : the gaseous products of burning materials especially of organic origin made visible by the presence of small particles of carbon b : a suspension of particles in a gas 2 a : a mass or column of smoke b : smudge 3 : fume or vapor often resulting from the action of heat on moisture.
Based on the broad definition that includes the terminology cigarette of any kind and seeing no language that exempted electronic cigarettes, it is the Departments interpretation that electronic cigarettes are included within the statutory definition of cigarette.
Gary L. Hagy
Director, Division of Food and Environmental Services
Phone: 804-864-7455
Blackberry: 804-840-5415
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MY REPLY TODAY
Thanks for getting back to me...
However, I hope the department is ready for legal challenges.
The definition you reproduced below repeatedly refers to 'lighted', which simply does not happen with an electronic cigarette.
'Cigarette' as defined in VA codes: (bold emphasis mine)
"Cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains (i) any roll of tobacco wrapped in paper or in any substance not containing tobacco; (ii) tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or (iii) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in clause (i) of this definition. The term "cigarette" includes "roll-your-own" tobacco, which means any tobacco which, because of its appearance, type, packaging, or labeling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes. For purposes of this definition of "cigarette," 0.09 ounces of "roll-your-own" tobacco shall constitute one individual "cigarette."
In all portions of this definition (because of the 'and' statement) a 'cigarette' must contain tobacco. An electronic cigarette does not. I don't see how you can have differing definitions for this application.
LIS > Code of Virginia > 3.2-4200
LIS > Code of Virginia > 58.1-1000
LIS > Code of Virginia > 58.1-1031
The scientific definition of smoke is burning of organic material, resulting in carbon particulates and ash being suspended in the air. It's a real stretch to say 'vapor' is smoke.
Not all electronic cigarettes contain nicotine (mine does not); besides, nicotine is not specifically part of the law.
And "fume or vapor often resulting from the action of heat on moisture" would then have to include a persons exhaled breath in a cold environment - vapor resulting from the action of one's body heat on the moisture in their lungs. Therefore, any environment that has people working in a refrigerator or freezer; or an unheated environment in winter; or anywhere else cold enough to create vapor from the people's breath, would have to be closed since people would not be able to 'smoke' in those environments.
I do hope common sense will prevail in the enforcement of this regulation - which, for what it was actually intended to do - prevent tobacco burning indoors - I wholeheartedly support.
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