The following words and phrases, whenever used in this chapter
shall have the meanings defined in this section unless the context
clearly requires otherwise:
"Arm's length transaction"
means a sale in good faith and for valuable consideration
that reflects the fair market value between two informed and willing
parties, neither of which is under any compulsion to participate in
the transaction. A sale between relatives, related companies or partners,
or a sale for which a significant purpose is avoiding the effect of
the violations of this chapter is not an arm's length transaction.
"Child-resistant packaging"
means packaging that meets the definition set forth in Code of Federal Regulations, Title
16, Section 1700.15(b), as in effect on January 1, 2015, and was tested in accordance with the method described in Code of Federal Regulations, Title
16, Section 1700.20, as in effect on January 1, 2015.
"Cigar"
means any roll of tobacco other than a cigarette wrapped
entirely or in part in tobacco or any substance containing tobacco
and weighing more than four and one-half pounds per thousand.
"Cigarette"
means: (1) any roll of tobacco wrapped in paper or in any
substance not containing tobacco; and (2) 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.
"Consumer"
means a person who purchases a tobacco product for consumption
and not for sale to another.
"Coupon"
means 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.
"Department"
means the city's community and economic development department
and any agency or person designated by the department to enforce or
administer the provisions of this chapter.
"Director"
means the city's community and economic development director
or designee.
"Drug paraphernalia"
has the meaning set forth in California Health and Safety
Code Sections 11014.5, 11364.5, and 11364.7 as those sections may
be amended from time to time.
"Electronic smoking device"
means any device that may be used to deliver any aerosolized
or vaporized substance to the person inhaling from the device, including,
but not limited to, an ecigarette, e-cigar, e-pipe, vape pen, or e-hookah.
Electronic smoking device includes any component, part, or accessory
of the device, and also includes any substance that may 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.
"Flavored tobacco product"
means any tobacco product that contains 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, molasses, or any candy, dessert, alcoholic beverage,
herb, or spice.
"Full retail price"
means 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.
"Labeling"
means written, printed, or graphic matter upon any tobacco
product or any of its packaging, or accompanying such tobacco product.
"Little cigar"
means 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 four and one-half pounds per thousand. "Little
cigar" includes, but is not limited to, tobacco products known or
labeled as small cigar, little cigar, or cigarillo.
"Manufacturer"
means 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"
means 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.
"Person"
means any natural person, partnership, cooperative association,
corporation, personal representative, receiver, trustee, assignee,
or any other legal entity.
"Proprietor"
means a person with an ownership or managerial interest in
a business. An ownership interest shall be deemed to exist when a
person has a ten percent 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
has or shares ultimate control over the day-to-day operations of a
business.
"Sale" or "sell"
means any transfer, exchange, barter, gift, offer for sale,
or distribution for a commercial purpose, in any manner or by any
means whatsoever.
"Self-service display"
means the open display or storage of tobacco products 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 product"
means:
1.
Any product containing, made of, or derived from tobacco or
nicotine that is intended for human consumption or is likely to be
consumed, 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, snuff;
2.
Any electronic smoking device and any substances that may be
aerosolized or vaporized by such device, whether or not the substance
contains nicotine; or
3.
Any component, part, or accessory of subsection (1) or (2) above,
whether or not any of these contains tobacco or nicotine, including,
but not limited to, filters, rolling papers, blunt or hemp wraps,
hookahs, mouthpieces, and pipes.
"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"
means any person who sells, offers for sale, or does or offers
to exchange for any form of consideration, tobacco products. "Tobacco
retailing" shall mean the doing of any of these things. This definition
is without regard to the quantity of tobacco products sold, offered
for sale, exchanged, or offered for exchange.
"Youth decoy"
means a person under the age of twenty-one but not younger
than eighteen, who is supervised by the sheriff's department or code
enforcement division to conduct onsite sting investigations of a tobacco
retailer to determine compliance with tobacco retailing laws.
(Ord. 1154 § 4, 2022)
A. Tobacco Retailer's License Required. Notwithstanding Section
9.42.030 of this code, it shall be unlawful for any person to act as a tobacco retailer in the city without first obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which tobacco retailing is to occur. Tobacco retailing without a valid tobacco retailer's license is a nuisance as a matter of law.
B. Compliance
With All Laws Required. In the course of tobacco retailing or in the
operation of the business or maintenance of the location for which
a license is issued, it shall be a violation of this chapter for any
person, proprietor, or any of the tobacco retailer's agents or employees,
to violate any local, state, or federal law applicable to tobacco
products or tobacco retailing.
C. Display
of License. Each tobacco retailer license shall be prominently displayed
in a publicly visible location at the licensed location.
D. Minimum
Legal Sales Age. No person engaged in tobacco retailing shall sell
or offer to sell, give or offer to give, or transfer or offer to transfer
any tobacco products to any person under twenty-one years of age.
E. Minimum
Clerk Age. No person who is younger than the minimum age established
by state law for the purchase or possession of any tobacco product
shall engage in tobacco retailing.
F. Positive
Identification Required. No person engaged in tobacco retailing shall
sell or transfer a tobacco product to another person without first
verifying by means of government-issued photographic identification
that the recipient is at least twenty-one years of age.
G. Drug
Paraphernalia. It shall be a violation of this chapter for any person
engaged in tobacco retailing or any of the tobacco retailer's agents
or employees to violate any local, state, or federal law regulating
controlled substances or drug paraphernalia, except that conduct authorized
pursuant to state law shall not be a violation of this chapter.
H. Self-Service
Displays Prohibited. No tobacco retailer shall display tobacco products
by means of a self-service display or engage in tobacco retailing
by means of a self-service display. A tobacco retailer who chooses
to display tobacco products in a locked cabinet, case or similar structure
must post a clear and conspicuous sign on or within five feet of the
display stating that the cabinet, case or structure is locked at all
times.
I. Windows.
1. In
the course of tobacco retailing or in the operation of a business
or maintenance of a location for which a license is issued, it shall
be a violation of this chapter for a proprietor, or any of the tobacco
retailer's agents or employees, to cover more than ten percent of
the window area with window signs unless otherwise prohibited in the
applicable zone, whichever is more restrictive shall apply.
2. All
windows and doors shall be maintained to ensure law enforcement personnel
have a clear and unobstructed view of the interior of the premises,
including the area in which the cash registers are maintained, from
exterior public rights-of-way or from the entrance. However, this
subsection shall not apply to premises where there are no windows,
or where the design or location of windows or landscaping precludes
a view of the interior of the premises from exterior public rights-of-way
or from the entrance.
J. False
and Misleading Advertising Prohibited. A tobacco retailer without
a valid tobacco retailer license or a proprietor without a valid tobacco
retailer license, including, for example, a person whose license has
been suspended or revoked:
1. Shall
keep all tobacco products out of public view. The public display of
tobacco products in violation of this provision shall constitute tobacco
retailing without a license; and
2. Shall
not display any advertisement relating to tobacco products 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.
(Ord. 1154 § 4, 2022; Ord. 1170 § 4, 2023)
In addition to the tobacco retail license, any tobacco retailer
must have a valid business license as required by Title 5 of this
code.
(Ord. 1154 § 4, 2022)
A tobacco retailer's license may not be transferred from one
person to another or from one location to another. A new tobacco retailer's
license is required whenever a tobacco retailing location has a change
in proprietor(s).
(Ord. 1154 § 4, 2022)
Nothing in this chapter shall be construed to grant any person
obtaining and maintaining a tobacco retailer's license any status
or right other than the limited conditional privilege to act as a
tobacco retailer at the location in the city identified on the face
of the permit. Nothing in this chapter shall be construed to render
inapplicable, supersede, or apply in lieu of, any other provision
of applicable law, including, but not limited to:
A. Any
provision of this code, including, but not limited to, zoning, building
and business license provisions; and/or
B. Any
condition or limitation on smoking in an enclosed place of employment
pursuant to California
Labor Code Section 6404.5. Obtaining a tobacco
retailer's license does not make the retailer a "retail or wholesale
tobacco shop" for the purposes of California
Labor Code Section 6404.5.
(Ord. 1154 § 4, 2022)
The fee to issue or to renew a tobacco retailer's license shall
be established from time to time by resolution of the city council.
The fee shall be calculated so as to recover the cost of administration
and enforcement of this chapter, including, for example, issuing a
license, administering the license program, retailer education, retailer
inspection and compliance checks, documentation of violations, and
prosecution of violators, but shall not exceed the cost of the regulatory
program authorized by this chapter. All fees and interest upon proceeds
of fees shall be used exclusively to fund the program. Fees are nonrefundable
except as may be required by law. The level of compliance monitoring
will affect the fees charged to tobacco retailers.
(Ord. 1154 § 4, 2022)
A. Compliance
with this chapter shall be monitored by the department and the city's
code enforcement division. In addition, any peace officer may enforce
the penal provisions of this chapter. The city may designate additional
persons to monitor compliance with this chapter.
B. Monitoring
may include, but is not limited to, unannounced inspections and/or
youth decoy operations during a tobacco retailer's hours of operation.
C. The
department shall conduct unannounced inspections for each tobacco
retailer at least one time per twelve-month period to ensure compliance
with this chapter.
D. The
city will conduct at least one unannounced compliance check per twelve-month
period that involves the participation of youth decoys, or an agent
designated by the city to enter licensed premises to attempt to purchase
tobacco products.
E. The
city shall not enforce any law establishing a minimum age for tobacco
purchases or possession against a person who otherwise might be in
violation of such law because of the person's age (youth decoy) if
the potential violation occurs when:
1. The
youth decoy is participating in a compliance check supervised by a
peace officer or a code enforcement officer of the city;
2. The
youth decoy is acting as an agent of a person designated by the city
to monitor compliance with this chapter; or
3. The
youth decoy is participating in a compliance check funded in part,
either directly or indirectly through subcontracting, by any city
or local agency or the California Department of Health Services.
F. Nothing
in this section shall create a right of action in any licensee or
other person against the city or its agents.
G. Whenever
evidence of a violation of this chapter is obtained in any part through
the participation of a person under the age of twenty-one years old,
including, but not limited to, a youth decoy operation, such a person
shall not be required to appear or give testimony in any civil or
administrative process brought to enforce this chapter and the alleged
violation shall be adjudicated based upon the sufficiency and persuasiveness
of the evidence presented by the city.
H. Nothing
in this chapter shall be construed to penalize the purchase, use,
or possession of a tobacco product by any person not engaged in tobacco
retailing.
(Ord. 1154 § 4, 2022; Ord. 1170 § 3, 2012)
A. In addition to any other penalties and remedies provided by law, including the provisions of this chapter, any violation of the provisions of this chapter may be charged as a misdemeanor pursuant to Chapter
1.20 of this code, or, in the discretion of the prosecutor, as an infraction. Any person who violates any provision of this chapter is subject to an administrative citation pursuant to Chapter
1.20 as well as a civil action, including, but not limited to, an injunction, as well as prosecution for any criminal violation.
B. In addition
to any other penalty under this chapter, a person found to have engaged
in tobacco retailing without a valid tobacco retail license shall
be ineligible to apply for or be issued a tobacco retail license as
follows:
1. After
a person is caught in violation of this section, no new tobacco retail
license may be issued for the person as a proprietor until thirty
days have passed from the date of the violation; and
2. Each
day that a person engages in tobacco retailing without a valid tobacco
retail license shall constitute a separate violation.
C. Any person found by the director to be ineligible to be issued a tobacco retail license pursuant to this section may request an administrative review within ten days of notice of the violation. The request must be made to the director in writing. Any administrative review shall be held pursuant to the provisions of Section
5.75.140 of this chapter.
D. Violations
of this chapter are hereby declared to be public nuisances pursuant
to this code.
(Ord. 1154 § 4, 2022; Ord. 1170 § 5, 2023)
Nothing in this chapter shall be interpreted or applied so as
to create any power or duty in conflict with any federal or state
law. If any provision of this chapter or the application thereof to
any person or circumstance is held invalid, the remainder of this
chapter or the application of such provision to other persons or circumstances
shall not be affected thereby.
(Ord. 1154 § 4, 2022)