[Ord. No. 09-02; amended 4-15-2019 by Ord. No. 2019-04]
As used in this section, the following terms shall have the meanings indicated:
CHARACTERIZING FLAVOR
A taste or aroma, other than the taste or aroma of tobacco, imparted by a tobacco product or any by-product produced by the tobacco product, including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice; provided, however, that a tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.
CIGAR
Any roll of tobacco, other than a cigarette, wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than three pounds per thousand.
[Added 5-20-2019 by Ord. No. 2019-05]
CIGARETTE
a. 
Any roll of tobacco wrapped in paper or in any substance not containing tobacco; and
b. 
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 herein.
[Added 5-20-2019 by Ord. No. 2019-05]
CONSUMER
A person who purchases a tobacco product for consumption and not for sale to another.
[Added 5-20-2019 by Ord. No. 2019-05]
COUPON
Any voucher, rebate, card, paper, note, form, statement, ticket, image, or other issue, whether in paper, digital, or other form, used for commercial purposes to obtain an article, product, service, or accommodation without charge or at a discounted price.
[Added 5-20-2019 by Ord. No. 2019-05]
DEPARTMENT
The City of Albany Police Department or other City department designated by the City Manager as responsible for administering and enforcing this section.
FLAVORED TOBACCO PRODUCT
Any tobacco product that imparts a characterizing flavor. This includes cigars, little cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, blunts, and electronic cigarettes or electronic smoking devices containing nicotine.
FULL RETAIL PRICE
The price listed for a tobacco product on its packaging or on any related shelving, advertising, or display where the tobacco product is sold or offered for sale, plus all applicable taxes and fees if such taxes and fees are not included in the listed price.
[Added 5-20-2019 by Ord. No. 2019-05]
LABELING
Written, printed, or graphic matter upon any tobacco product or any of its packaging, or accompanying such tobacco product.
LITTLE CIGAR
Any roll of tobacco, other than a cigarette, wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than three pounds per thousand. "Little cigar" includes, but is not limited to, tobacco products known or labeled as "small cigar," "little cigar," or "cigarillo."
[Added 5-20-2019 by Ord. No. 2019-05]
MANUFACTURER
Any person, including any repacker or relabeler, who manufactures, fabricates, assembles processes, or labels a tobacco product, or imports a finished tobacco product for sale or distribution into the United States.
PACKAGE OR PACKAGING
A pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold or offered for sale to a consumer.
PROPRIETOR
A person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a 10% or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day-to-day operations of a business.
SELF-SERVICE DISPLAY
The open display or storage of tobacco product or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
TOBACCO PARAPHERNALIA
Any item designed or marketed for the consumption, use or preparation of tobacco products.
TOBACCO PRODUCT
a. 
Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff; and
b. 
Any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah.
c. 
Notwithstanding any provision of Subsections a and b to the contrary, "tobacco product" includes any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately. "Tobacco product" does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.
TOBACCO RETAILER
Any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia, or who distributes free or low-cost samples of tobacco products or tobacco paraphernalia. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.
a. 
It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's license pursuant to this section for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer's license is a public nuisance.
b. 
No license may be issued to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.
c. 
The issuance of a tobacco retailer license does not exempt any business that is subject to the smoking pollution control provisions within the Albany Municipal Code, § 17-1.
d. 
A tobacco retailer or proprietor without a valid tobacco retailer license, including, for example, a person whose license has been revoked:
1. 
Shall keep all tobacco products and tobacco paraphernalia out of public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a license under Subsection 5-24.10.
2. 
Shall not display any advertisement relating to tobacco products or tobacco paraphernalia that promotes the sale or distribution of such products from the tobacco retailer's location or that could lead a reasonable consumer to believe that such products can be obtained at that location.
Application for a tobacco retailer's license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof. All applications shall be submitted on a form supplied by the Albany Police Department and shall contain the following information:
a. 
The name, address, and telephone number of each proprietor.
b. 
The business name, address, and telephone number of the single fixed location for which a license is sought.
c. 
Such other information as the Department deems necessary for the administration or enforcement of this section.
a. 
Within 30 days of the Department's receipt of an application for a tobacco retailer's license and the license fee required by this section, the Department shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:
1. 
The information presented in the application is incomplete, inaccurate, or false.
2. 
The application seeks authorization for tobacco retailing by a proprietor or at a location for which a revocation is in effect pursuant to Subsection 5-24.10 of this section.
3. 
The application seeks authorization for tobacco retailing that is unlawful pursuant to this Code, or that is unlawful pursuant to any other local, state or federal law.
b. 
A license shall be valid for one calendar year and must be renewed prior to the expiration of the payment term.
A tobacco retailer's license is nontransferable. In the event a person to whom a license has been issued changes business location or sells the business referenced in that person's license, that person must apply for a new license prior to acting as a tobacco retailer at the new location. The transferee of the licensee must apply for a license in the transferee's name before acting as a tobacco retailer. Any license issued pursuant to this section shall expire on the date the previous license for the business or person would have expired.
The fee to issue or to renew a tobacco retailer's license shall be established by resolution of the City Council. The fee shall reflect the actual cost of processing the license, including inspection of the tobacco retailer's business premises and implementation and enforcement of the licensing program.
a. 
Positive identification required. No person engaged in tobacco retailing shall sell or transfer a tobacco product or tobacco paraphernalia to another person who appears to be under the age of 27 years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess the tobacco product or tobacco paraphernalia.
b. 
Minimum age for persons selling tobacco. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing.
c. 
Self-service displays prohibited. No tobacco retailer shall display tobacco products or tobacco paraphernalia by means of a self-service display or engage in tobacco retailing by means of a self-service display.
d. 
Lawful business operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license has been issued, it shall be a violation of this section for a licensee, or any of the licensee's agents or employees, to:
1. 
Violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.
2. 
Violate any local, state, or federal law regulating exterior, storefront, window or door signage.
e. 
Flavored tobacco product sales prohibited. No tobacco retailer, nor any of the retailer's agents or employees, shall sell or offer for sale, or possess with intent to sell or offer for sale, any flavored tobacco product.
f. 
Presumptions for flavored tobacco products. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:
1. 
Made a public statement or claim that the tobacco product imparts a characterizing flavor;
2. 
Used text and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or
3. 
Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.
g. 
Packaging and labeling. No tobacco retailer shall sell any tobacco product to any consumer unless such product:
1. 
Is sold in the original manufacturer's packaging intended for sale to consumers; and
2. 
Conforms to all applicable federal labeling requirements.
h. 
Display of price. The price of each tobacco product offered for sale shall be clearly and conspicuously displayed to indicate the price of the product.
[Added 5-20-2019 by Ord. No. 2019-05]
i. 
Prohibition of tobacco coupons and discounts. No tobacco retailer shall:
[Added 5-20-2019 by Ord. No. 2019-05]
1. 
Honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than the full retail price;
2. 
Sell any tobacco product to a consumer through a multiple-package discount or otherwise provide any such product to a consumer for less than the full retail price in consideration for the purchase of any tobacco product or any other item; or
3. 
Provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.
j. 
Minimum package size for little cigars and cigars. No retailer shall sell to a consumer:
[Added 5-20-2019 by Ord. No. 2019-05]
1. 
Any little cigar unless it is sold in a package of at least 20 little cigars; or
2. 
Any cigar unless it is sold in a package of at least six cigars; provided, however, that this subsection shall not apply to a cigar that has a price of at least $8 per cigar, including all applicable fees and taxes.
k. 
Minimum prices for cigarettes, little cigars and cigars.
1. 
No tobacco retailer shall sell to a consumer:
[Added 5-20-2019 by Ord. No. 2019-05]
(a) 
Cigarettes at a price that is less than $8 per package of 20 cigarettes, including all applicable fees and taxes;
(b) 
Little cigars at a price that is less than $8 per package of little cigars, including all applicable fees and taxes;
(c) 
Single cigars at a price that is less than $8 per cigar, including all applicable fees and taxes.
2. 
The minimum prices established in this section shall be adjusted annually (percent change in the annual average, not seasonally adjusted) by increments of $0.25 in proportion with the Consumer Price Index, all urban consumers for all items for the San Francisco-Oakland-Hayward statistical area as reported by the United States Bureau of Labor Statistics or any successor to that Index.
a. 
Revocation of license for violation. In addition to any other penalty authorized by law, a tobacco retailer's license shall be revoked if the Department finds or any court of competent jurisdiction determines, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee's agents or employees, has violated any of the requirements, conditions, or prohibitions of this section or, in a different legal proceeding, has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of any law designated in Subsection 5-24.8 above.
b. 
New license after revocation.
1. 
After revocation for a first violation of this section at a location within any sixty-month period, no new license may issue for the location until 30 days have passed from the date of revocation.
2. 
After revocation for a second violation of this section at a location within any sixty-month period, no new license may issue for the location until 90 days have passed from the date of revocation. If the violation occurs within 12 months of the first violation, the tobacco retailer shall be subject to an administrative fine of $250.
3. 
After revocation for a third violation of this section at a location within any sixty-month period, no new license may issue for the location until one year has passed from the date of revocation. If the violation occurs within 12 months of the second violation, the tobacco retailer shall be subject to an administrative fine of $500.
4. 
After revocation for four or more violations of this section at a location within any sixty-month period, no new license may issue for the location until five years have passed from the date of revocation. In addition, the tobacco retailer shall be subject to an administrative fine of $1,000.
c. 
Appeal of revocation. A decision of the Department to revoke a license is appealable to the City Manager and must be filed with the City Clerk within 10 days of mailing of the Department's decision. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the City Administrator is not available for a revocation made pursuant to Subsection d below.
d. 
Revocation of license Issued in error. A tobacco retailer's license shall be revoked if the Department finds, after the licensee is afforded reasonable notice and an opportunity to be heard, that one or more of the bases for denial of a license under Subsection 5-24.4 existed at the time application was made or at any time before the license issued. The decision by the Department shall be the final decision of the City. The revocation shall be without prejudice to the filing of a new license application.
In addition to any other penalty authorized by law, if the Department finds, based on substantial record evidence, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer's license, either directly or through the person's agents or employees, the person shall be ineligible to apply for or be issued a tobacco retailing license for that location as follows:
a. 
After a first violation of this section at a location within any sixty-month period, no new license may issue for the person at the location until 30 days have passed from the date of the violation.
b. 
After a second violation of this section at a location within any sixty-month period, no new license may issue for the person at the location until 90 days have passed from the date of the violation.
c. 
After a third or subsequent violation of this section at a location within any sixty-month period, no new license may issue for the person at the location until five years have passed from the date of the violation.
a. 
Causing, permitting, aiding, abetting, or concealing a violation of any provision of this section shall constitute a violation.
b. 
In addition to the administrative enforcement procedures provided by this section, violations of this section may, in the discretion of the City Attorney, be prosecuted as infractions, pursuant to Albany Municipal Code.
c. 
Violations of this section are hereby declared to be public nuisances.
d. 
In addition to other remedies provided by this section or by other law, any violation of this section may be remedied by a civil action brought by the City Attorney, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. The remedies provided by this section are cumulative and in addition to any other remedies available at law or in equity.
e. 
An action for injunction may be brought in a court of competent jurisdiction by any aggrieved person, or any person or entity that will fairly and adequately represent the interests of the class protected by this section.