means a distinguishable taste or aroma, or both, other than
the taste or aroma of tobacco, imparted by a tobacco product or any
byproduct produced by the tobacco product. Characterizing flavors
include, but are not limited to, tastes or aroma relating to any fruit,
chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage,
menthol, mint, wintergreen, herb, or spice. 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. Rather, it is the presence of a distinguishable taste
or aroma, or both, as described in the first sentence of this definition,
that constitutes a characterizing flavor.
means any ingredient, substance, chemical, or compound, other
than tobacco, water, or reconstituted tobacco sheet that is added
by the manufacturer to a tobacco product during the processing, manufacture,
or packing of the tobacco product.
means a person who purchases a tobacco product for consumption.
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.
means the chief of police, or his or her designee.
means perceivable by either the sense of smell or taste.
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 e-cigarette, e-cigar, e-pipe, or vape pen.
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, and whether natural or synthetic. "Electronic smoking device"
does not include any product that has been approved by the United
States Food and Drug Administration for sale as a tobacco cessation
product or for other therapeutic purposes where such product is marketed
and sold solely for such an approved purpose.
means any tobacco product that contains a constituent that
imparts a characterizing flavor.
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.
means a type of waterpipe, used to smoke shisha or other
tobacco products, with a flexible tube for drawing aerosol through
water. Components of a hookah may include heads, stems, bowls, and
hoses.
means a tobacco retailer that is engaged in the retail sale
of shisha tobacco products, hookah, and hookah smoking accessories
that are to be consumed on site immediately after purchase. A hookah
tobacco retailer is a type of tobacco retailer for purposes of this
chapter.
means written, printed, pictorial, or graphic matter upon
any tobacco product or any of its 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.
means a valid permit issued by the director to a person to
act as a tobacco retailer.
means any natural person, partnership, cooperative association,
corporation, personal representative, receiver, trustee, assignee,
or any other entity.
means any retail establishment in which the profession of
pharmacy is practiced by a pharmacist licensed by the state of California
in accordance with the Business and Professions Code and where prescription
pharmaceuticals are offered for sale, regardless of whether the retail
establishment sells other retail goods in addition to prescription
pharmaceuticals.
means transfer to, exchange, barter, or distribute for a
commercial purpose.
shall be defined as the open display or storage of tobacco
products in a manner that is physically accessible to the general
public without the assistance of the retailer or employee of the retailer
and a direct face-to-face transfer between the purchaser and the retailer
or employee of the retailer. A vending machine is a form of self-service
display.
means a tobacco product smoked or intended to be smoked in
a hookah. "Shisha tobacco product" includes, and may be referred to
as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh.
"Shisha tobacco product" does not include any electronic devices,
such as an electronic hookah, electronic cigarette, or electronic
tobacco product.
means any item designed or marketed for the consumption,
use, or preparation of tobacco products.
means a product designed, manufactured, produced, marketed
or sold to produce a characterizing flavor when added to a tobacco
product.
means any person who sells, or offers for sale, tobacco products.
This definition is without regard to the quantity of tobacco products
sold or offered for sale.
means:
Any product containing, made of, or derived from tobacco or
nicotine, whether natural or synthetic, that is intended for human
consumption or is likely to be consumed, whether inhaled, absorbed,
or ingested by any other means, including, but not limited to, a cigarette,
a cigar, pipe tobacco, chewing tobacco, snuff, or snus;
Any electronic smoking device and any substances that may be
aerosolized or vaporized by such device, whether or not the substance
contains nicotine, and whether natural or synthetic; or
Any component, part, or accessory of Subsections (1) or (2),
whether or not any of these contains tobacco or nicotine, whether
natural or synthetic, including, but not limited to, filters, rolling
papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.
"Tobacco product" does not include any product that has been
approved by the United States Food and Drug Administration for sale
as a tobacco cessation product or for other therapeutic purposes where
such product is marketed and sold solely for such an approved purpose.
means a parcel of real property that is occupied, in whole
or in part, by any of the following:
A private or public school that educates children in grades
kindergarten through high school;
A library that is open to the public;
A playground that is open to the public;
A youth center, defined as a facility where children ages six
to 17 come together for programs and activities;
A recreation facility open to the public, defined as an area,
place, structure, or other facility that is used either permanently
or temporarily for community recreation, even though it may be used
for other purposes. "Recreation facility" includes, but is not limited
to, a gymnasium, playing court, playing field, and swimming pool;
A public or private college or university that serves as an
institution for education beyond the high school level;
A licensed child-care facility or preschool, other than a small-family
day care home or a large-family daycare home as defined in California
Health and Safety Code Section 1596.78.
(Ord. 2026, 3/18/2024)
(a)
No tobacco retailer or other person shall sell or offer for
sale any tobacco product without a current and valid tobacco retailer
permit from the city of Burlingame for each location where such activities
are conducted.
(b)
Permits are valid for one year and must be renewed annually
by the permit holder in order to continue to sell or offer for sale
any tobacco product. A retailer must obtain a separate permit for
each location at which any tobacco product will be sold, offered for
sale or distributed. A permit shall expire at the end of its term,
unless renewed prior to its expiration, and the tobacco retailer must
obtain a new permit prior to any further sale, offer for sale, or
distribution of any tobacco product.
(1)
The city will permit no more than two hookah tobacco retailers within the city limits. To become a hookah tobacco retailer, the applicant must specifically note this request upon their tobacco retailer permit application, and must otherwise comply with all other requirements of this chapter. This includes, but is not limited to, the additional requirements for the sale of hookah tobacco located in Section 8.19.160.
(i)
A hookah tobacco retailer is also required to offer customers
at least one non-tobacco, non-nicotine hookah alternative.
(c)
No tobacco retailer shall violate, or cause or allow the tobacco
retailer's agents or employees to violate, any provision of this
chapter or any other local, state, or federal law applicable to tobacco
products or tobacco retailing.
(d)
Tobacco retailers are responsible for the actions of their employees
and agents relating to the sale, offer to sell, and furnishing of
tobacco products at the retail location. The sale of any tobacco product
by a tobacco retailer employee shall be considered an act of the tobacco
retailer, and the permit holder shall be responsible for any and all
penalties levied.
(e)
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. 2026, 3/18/2024)
(a)
Tobacco retailer permits are nontransferable as between persons,
locations, or otherwise. Any attempted transfer shall render the permit
null and void, and the permit shall automatically expire.
(b)
Notwithstanding any other provision of this chapter, prior violations
of this chapter at a location shall continue to be counted against
that location and permit ineligibility and suspension periods shall
continue to apply to that location unless:
(1)
One hundred percent of the interest in the stock, assets, or
income of the business, other than a security interest for the repayment
of debt, has been transferred to the new owner(s); and
(2)
The city is provided with clear and convincing evidence, including
an affidavit, that the business has been acquired in an arm's
length transaction. An arm's length transaction, for the purposes
of this section, means a transaction in which two or more unrelated
and unaffiliated parties agree on the transfer in question; the parties
act independently and in their own self-interest; and the parties
have equal bargaining power and symmetric information, leading the
parties to agree upon fair-market terms.
(Ord. 2026, 3/18/2024)
Nothing in this chapter shall be construed to grant any person
or entity obtaining and maintaining a permit any status or right other
than the limited, conditional privilege to sell tobacco products and
act as a tobacco retailer at the location in the city identified on
the face of the permit for the period of time shown on the permit.
All permits are issued subject to the city's right to amend this
chapter from time to time, and retailers shall comply with all provisions
of this chapter, as amended.
(Ord. 2026, 3/18/2024)
(a)
Application for a tobacco retailer's permit or the renewal
of a tobacco retailer permit shall be submitted in the name of the
person proposing to conduct retail sales of tobacco products, referred
to herein as the "applicant," and shall be signed by such person or
an authorized agent thereof. All applications shall be submitted to
the director on a form supplied by the director and contain, at a
minimum, the following information:
(1)
The name, address, telephone number, and email address of the
applicant;
(2)
The business name, address, and telephone number of the location
where tobacco products are proposed to be sold, offered for sale or
distributed by the applicant; and
(3)
Proof that the location for which a tobacco retailer's
permit is sought has been issued a valid state license for the sale
of tobacco products, if the tobacco retailer sells products that require
such license;
(4)
A statement whether or not the tobacco retailer or any agent
of the retailer has been found to have violated this chapter or other
applicable law governing tobacco products or tobacco retailing and,
if so, the dates and locations of all such violations within the previous
five years; and
(5)
Such other information as the director determines is necessary
for implementation of this chapter.
(6)
An application for a new or renewal permit will be denied if
there are any outstanding fines or late fees issued by the director,
or during any period of suspension.
(7)
It is the responsibility of each permit holder to be informed
regarding all laws applicable to tobacco retailing, including those
laws affecting the issuance of a tobacco retailer permit. No permit
holder may rely on the issuance of a permit as a determination by
the city that the permit holder has complied with all laws applicable
to tobacco retailing. A permit issued contrary to this chapter or
any other law, or on the basis of false or misleading information
supplied by the applicant, shall be revoked. Nothing in this chapter
shall be construed to vest in any person or entity obtaining or maintaining
a tobacco retailer's permit any status or right to act as a tobacco
retailer in contravention of any provision of law.
(Ord. 2026, 3/18/2024)
Upon receipt of a complete application for a tobacco retailer
permit in compliance with the requirements of this chapter, the director
may issue a permit which, if issued, must be prominently displayed
in a publicly visible location at the location where tobacco product
sales are conducted and permitted.
(Ord. 2026, 3/18/2024)
(a)
No tobacco retailer shall do any of the following:
(1)
Honor or redeem, or offer to honor or redeem, a coupon to allow
a consumer to purchase a tobacco product for less than 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.
(b)
No person, tobacco retailer or other legal entity shall sell
or distribute to a person any electronic smoking device that delivers
natural or synthetic nicotine or any other substance(s) to the person
inhaling from the device. This includes any component, part, or accessory
intended or reasonably expected to be used with the electronic smoking
device, whether or not sold separately.
(c)
No person or tobacco retailer shall sell or offer to sell any
flavored tobacco product or tobacco product flavor enhancer. There
shall be a rebuttable presumption that a tobacco product is a flavored
tobacco product if a manufacturer or any of the manufacturer's
agents or employees, in the course of their agency or employment,
has made a statement or claim directed to consumers or to the public
that the tobacco product has or produces a characterizing flavor including,
but not limited to, text, color, and/or images on the product's
labeling or packaging that are used to explicitly or implicitly communicate
that the tobacco product has a characterizing flavor.
(d)
Subsection (c) does not apply to the sale of flavored shisha tobacco products for on-site consumption by a hookah tobacco retailer if all of the following conditions are met:
(1)
The hookah tobacco retailer has a valid license to sell tobacco
products issued pursuant to Chapter 2 (commencing with Section 22971.7)
of Division 8.6 of the Business and Professions Code, and has a valid
city of Burlingame Tobacco Retailer Permit noting permission to offer
on-site hookah consumption.
(2)
The hookah tobacco retailer does not permit any person under
21 years of age to be present or enter the premises at any time.
(3)
The hookah tobacco retailer shall operate in accordance with
all relevant state and local laws relating to the sale of tobacco
products.
(4)
If consumption of tobacco products is allowed on the premises
of the hookah tobacco retailer, the hookah tobacco retailer shall
operate in accordance with all state and local laws relating to the
consumption of tobacco products on the premises of a tobacco retailer,
including, but not limited to, Section 6404.5 of the California Labor
Code, which may be updated from time to time.
(e)
No pharmacy or pharmacy employee or agent shall sell or offer
to sell any tobacco product. The director shall not issue any tobacco
retailer permit to any pharmacy.
(Ord. 2026, 3/18/2024)
No tobacco retailer or other person shall sell or offer for
sale any tobacco product to any consumer unless the tobacco product:
(1) is sold in the original manufacturer's packaging intended
for sale to consumers; (2) conforms to all applicable federal labeling
requirements; and (3) conforms to all applicable child-resistant packaging
requirements.
(Ord. 2026, 3/18/2024)
(a)
Tobacco retailing by means of a self-service display is prohibited.
(b)
All sales of tobacco products and tobacco paraphernalia shall
be conducted in-person, over the counter, in the permitted location.
(Ord. 2026, 3/18/2024)
Tobacco retailers shall post conspicuously, at each point of
purchase, a notice stating that selling tobacco products to anyone
under 21 years of age is illegal and subject to penalties. The form
and content of such notice shall be subject to the approval of the
director.
(Ord. 2026, 3/18/2024)
No tobacco retailer or other person shall sell or offer to sell
a tobacco product to another person without first verifying by means
of government-issued photographic identification that the recipient
is at least the minimum legal sales age required under state law to
purchase a tobacco product.
(Ord. 2026, 3/18/2024)
No tobacco retailer shall allow, at its retail location, any
individual who is younger than 21 years of age to sell or offer to
sell tobacco products.
(Ord. 2026, 3/18/2024)
A tobacco retailer without a current valid permit:
(a)
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 permit.
(b)
Shall not display any advertisement relating to tobacco products
that offers the sale of such products from the tobacco retailer's
location.
(Ord. 2026, 3/18/2024)
(a)
No tobacco retailer's permit may be issued to authorize
tobacco retailing at or from other than a fixed location. For example,
sales by persons on foot or from vehicles or other forms of mobile
vending are prohibited.
(b)
No tobacco retailer's permit may be issued to authorize
sales of tobacco products at a temporary event, such as flea markets
and farmers' markets.
(c)
No new tobacco retailer permit may be issued to authorize tobacco
product sales at any location within 1,000 feet of a youth-populated
area, as measured by a straight line from the nearest point of the
property line of any parcel on which a youth-populated area is located
and any point along the property line of the parcel on which the permit
applicant has or proposes to locate the business.
(d)
No new tobacco retailer's permit may be issued for a location
which is within 500 feet of a location already occupied by another
tobacco retailer, as measured by a straight line from the nearest
point of the property line of the parcel on which the applicant's
business is located to the nearest point of the property line of the
parcel on which an existing tobacco retailer's business is located.
A hookah tobacco retailer is exempt from this requirement solely for
the sale of hookah (shisha) tobacco, but may not be located within
500 feet of another hookah tobacco retailer.
(e)
The sale of tobacco products and accessories is prohibited in
city owned structures and in any area of a structure leased by the
city, wherever located.
(f)
For purposes of this section, any tobacco retailer with a valid
license to sell tobacco within the state of California will be permitted
remain at their current location, so long as they obtain a city tobacco
retailer permit within 12 months of the effective date of the ordinance
codified in this chapter. To be eligible, the retailer must have a
valid, unexpired tobacco license issued by the state of California
that predates the effective date of the ordinance codified in this
chapter, and must list the address at which the tobacco retailer wishes
to continue to conduct business.
(Ord. 2026, 3/18/2024)
Tobacco retailers shall pay all applicable fees at the rates
set forth in the city's Master Fee Schedule, which may be updated
from time to time. Fees shall be used by the director to administer
and enforce this chapter.
(Ord. 2026, 3/18/2024)
(a)
The director or the director's designee shall enforce this
chapter consistent with the provisions herein.
(b)
Violations of this chapter may be criminally prosecuted as infraction(s)
or misdemeanor(s) at the discretion of the prosecuting attorney as
the interests of justice require.
(c)
This section shall not be interpreted to limit the applicable
civil or administrative remedies available under law.
(Ord. 2026, 3/18/2024)
Any violation of this chapter is hereby declared a public nuisance,
subject to all applicable civil, administrative, and criminal remedies
and penalties according to the provisions and procedures of contained
in this code and state law, including, but not limited to, an action
for abatement or injunctive relief.
(Ord. 2026, 3/18/2024)
(a)
Compliance with this chapter shall be monitored by the director.
In addition, any peace officer may enforce the provisions of this
chapter. The director may designate additional persons to monitor
and facilitate compliance with this chapter.
(b)
Individuals designated to enforce the provisions of this chapter
shall inspect each tobacco retailer at least two times during each
12-month period to determine if the tobacco retailer is complying
with all applicable laws. Compliance checks shall take place during
normal business hours, with or without notice. If a violation has
occurred, the tobacco retailer shall be inspected again within three
months. All permitted premises must be open to inspection by designated
persons during regular business hours.
(c)
Nothing in this section shall create a right of action in any
tobacco retailer or other person or entity against the city or its
agents.
(Ord. 2026, 3/18/2024)
(a)
Grounds for Suspension or Revocation.
(1)
A tobacco retailer permit may be suspended or revoked, as set
forth below in subsection (b), if any court of competent jurisdiction
determines, or the director finds, based on a preponderance of the
evidence after notice and opportunity for the tobacco retailer to
be heard, that either of the following violations have occurred:
(A)
After the permit was issued it is determined that the application
for the permit is incomplete or inaccurate.
(B)
The tobacco retailer or tobacco retailer's agent has violated
any of the requirements, conditions, or prohibitions of this chapter
or any applicable local, state, or federal tobacco-related law.
(2)
Notwithstanding the foregoing, a tobacco retailer permit shall
be suspended or revoked, for the maximum time periods and as set forth
in subsection (b), if any court of competent jurisdiction determines,
or the director finds, based on a preponderance of evidence and after
notice and opportunity for the tobacco retailer to be heard, that
the tobacco retailer, or any agent or employee of the tobacco retailer,
has sold tobacco products to any person(s) under the age of 21 years.
(b)
Time period of Suspension of Permit.
(1)
Upon the first violation within any 60 month period, the permit
to sell tobacco products may be suspended for up to 30 days.
(2)
Upon the second violation within any 60 month period, the permit
to sell tobacco products may be suspended for up to 90 days.
(3)
Upon the third violation within any 60 month period, the permit
to sell tobacco products may be suspended for up to one year.
(4)
Upon the fourth violation within any 60 month period, the permit
to sell tobacco products shall be revoked. If a permit is revoked,
the retailer shall not be eligible for a new permit for a period of
five years after the effective date of revocation.
(c)
Effective Date of Suspension or Revocation.
Within 10 calendar days of the hearing, the director shall issue written findings and an order regarding the suspension or revocation, which order will be effective 10 calendar days from the date such order was sent by certified mail to the retailer, unless a timely appeal is filed in accordance with subsection (d).
(d)
Appeal of Suspension or Revocation.
The decision of the director is appealable to city manager or
his/her designee.
(1)
An appeal must be in writing, be addressed to the director and
be hand-delivered to Burlingame Police Department Headquarters during
ordinary business hours.
(2)
An appeal must be received by the director before the effective
date of suspension or revocation provided by subsection (c) in order
to be considered.
(3)
The filing of a timely appeal will stay a suspension or revocation
pending a decision on the appeal by the city manager.
(4)
The decision of the city manager shall be a final administrative
order, with no further administrative right of appeal.
(Ord. 2026, 3/18/2024)
(a)
Grounds for Fine. A fine shall be imposed on a tobacco retailer upon findings made by the director, based on a preponderance of the evidence, that any tobacco retailer, or any agent or employee of the tobacco retailer, has violated any of the requirements, conditions, or prohibitions of this chapter. A fine shall be imposed in the maximum amounts set forth in subsection (b) of this section upon findings made by the director that the tobacco retailer, or any agent or employee of the tobacco retailer, has sold any tobacco product to any person(s) under the age of 21 years. Any administrative fine shall be imposed solely against the tobacco retailer, not the tobacco retailer's employees or agents.
(b)
(c)
Each day that tobacco products are sold or offered for sale
without a permit or otherwise in violation of this chapter shall constitute
a separate violation. A finding of "offered for sale" in violation
of this chapter will be made if tobacco products are either actually
sold and/or displayed in the retail establishment, or if advertisements
offering to sell tobacco products are visible to customers.
(d)
Fine Procedures. Notice of the fine shall be served on the tobacco
retailer by certified mail. The notice shall contain a description
of the facts upon which the asserted violation is based and an advisement
of the right to request a hearing before the director contesting the
imposition of the fine. Said hearing must be requested within 10 calendar
days of the date appearing on the notice of the fine. The decision
of the director shall be a final administrative order, with no administrative
right of appeal.
(e)
Failure to Pay Fine. If a fine imposed pursuant to this chapter
is not paid within 30 calendar days from the date appearing on the
notice of the fine or of the notice of determination of the director
after the review provided for under subdivision (c) of this section,
the fine may be referred to a collection agency within or external
to the city. In addition, any outstanding fines must be paid prior
to the issuance of any new permit or renewal of a permit.
(Ord. 2026, 3/18/2024)
The director may promulgate regulations to administer this chapter.
(Ord. 2026, 3/18/2024)
