Berkeley Municipal Code Ch. 20.66 Tobacco Product Advertising

The primary purpose of this chapter is to promote the general welfare and reduce illegal purchase and consumption of tobacco products by minors, which is accomplished by limiting the exposure of minors to tobacco advertisements. (Ord. 6447-NS § 1 (part), 1998)

"Owner or operator" includes the owner of the property at which the advertising subject to this chapter is located, the owner of any billboard or other structure on which tobacco product advertising is located, as well as the operator of any commercial or other establishment at that location.

"Person" means any individual, firm corporation, partnership, cooperative association, receiver, trustee, assignee public or private entity, or other legal entity.

"Publicly visible location" means any outdoor location and any window of a commercial establishment that is visible to the public from any street sidewalk, or other public thoroughfare. This shall not be construed to include the inside of any commercial establishment, with the exception of its windows.

"School" means any public or private elementary school, junior high school, or high school.

"Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipes, tobacco, snuff, chewing tobacco, dipping tobacco, or any other instrument or paraphernalia which is designed for the smoking or ingestion of tobacco or products prepared from tobacco.

"Tobacco product advertising" means any billboard, sign, poster, placard, device, graphic display, or other item which promotes or is designed to promote the sale, use or consumption of a particular brand of tobacco products, but shall not mean any advertising on the packaging of the product itself. (Ord. 6472-NS § 1, 1999; Ord. 6461-NS § 1, 1998; Ord. 6447-NS § 1 (part), 1998)

No person shall place or maintain, or cause or allow to be placed or maintained any tobacco product advertising in any publicly visible location within one thousand four hundred feet of the perimeter of any school. (Ord. 6447-NS § 1 (part), 1998)

This chapter shall not apply to tobacco product advertising which is:

A. On any sign on a commercial establishment which sign has as its primary function the identification of the commercial establishment on which it is located and/or the identification of products which are sold in such establishment, as long as such identification of products is generic and does not identify any particular brand of product.

B. Inside any commercial establishment, however, no tobacco product advertising may be placed in the window of a commercial establishment such that it is visible to the public from any street, sidewalk or other public thoroughfare.

C. On commercial vehicles used for transporting tobacco products.

D. On taxicabs. (Ord. 6447-NS § 1 (part), 1998)

The ordinance codified in this chapter shall become operative six months from the date of its adoption. (Ord. 6447-NS § 1 (part), 1998)

Any violation of the provisions of this chapter is declared to be a public nuisance. The procedures for the abatement of such nuisances shall be governed by Berkeley Municipal Code Chapter 1.24 as may hereafter be amended. (Ord. 6447-NS § 1 (part), 1998)

A. Infraction. Any person violating any provision or failing to comply with any requirement of this chapter shall be deemed guilty of an infraction as set forth in Chapter 1.20 of this code.

1. Each separate display of tobacco product advertising in violation of this chapter is deemed to be a separate offense.

2. Each day an item of tobacco product advertising remains in violation of this chapter is deemed to be a separate offense.

B. Civil Action. In addition to any other remedy provided by this chapter, any violation of this chapter may be enforced by a civil action brought by the City or any other interested person. The City or any other interested person may seek and the court shall grant as appropriate:

1. Injunctive relief, both temporary and permanent;

2. Reasonable attorney fees and costs of suit.

C. Remedies Not Exclusive. Nothing in this chapter shall preclude the City from seeking any other remedy provided by law. (Ord. 6447-NS § 1 (part), 1998)

The City Council may adopt a resolution establishing a fee which must be paid by the owner or operator of a specified location whenever the City Manager, or their designee, determines upon reinspection that a person has failed to comply with any orders, notices or directions issued by the City under this chapter. (Ord. 6447-NS § 1 (part), 1998)

This chapter shall apply to all existing tobacco product advertising in violation of this chapter unless the owners or operators of the location at which such advertising is located provide written documentation to the City Manager, or their designee, within thirty days from the effective date of the ordinance codified in this chapter that this chapter unreasonably interferes with any contracts executed before the date of adoption of said ordinance.

A. Failure to provide such timely, written documentation shall be deemed a waiver of the right to seek an exemption.

B. The City Manger is authorized to grant an exemption from enforcement of this chapter for up to one year from the date of adoption. The decision of the City Manger with respect to such exemption is final. (Ord. 6447-NS § 1 (part), 1998)

The advertiser, the property owner and any operator of any location at which exists prohibited tobacco product advertising shall be jointly and severally liable for violations of this chapter. (Ord. 6447-NS § 1 (part), 1998)