Berkeley Municipal Code Ch. 9.80 Tobacco Retailers

The purposes of this chapter are to reduce minors’ access and exposure to tobacco products and to discourage violations of tobacco-related laws that prohibit or discourage the sale or distribution of tobacco products to minors and that prohibit the display of tobacco products within reach of the public, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalty provided therefore.

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 right to act as a tobacco retailer at the location in the City identified on the face of the permit, subject to compliance with all other applicable laws and ordinances. Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on indoor smoking made applicable to business establishments by California Labor Code Section 6404.5. (Ord. 7441-NS § 2, 2015; Ord. 6720-NS § 2, 2002)

The following words and phrases, whenever used in this article, shall have the meanings defined in this section unless the context clearly requires otherwise:

A. "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 three pounds per thousand units.

B. "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 in subparagraph (1).

C. "Characterizing flavor" means a distinguishable taste or aroma, other than the taste or aroma of tobacco, that is imparted either prior to or during consumption of a tobacco product, or any byproduct produced by the tobacco product, including but not limited to tastes or aromas of menthol, mint, wintergreen, chocolate, vanilla, honey, cocoa, any candy, any dessert, any alcoholic beverage, any fruit, any herb, and any spice; provided, however, that no tobacco product shall be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.

D. "Consumer" means a person who purchases a tobacco product for consumption and not for sale to another.

E. "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.

F. "Electronic nicotine delivery system" means any electronic and/or battery-operated device that can be used to deliver an inhaled dose of nicotine or other substances, including but not limited to electronic cigarettes, vaporizer pens, electronic cigars, electronic cigarillos, electronic pipes, electronic hookahs, or any other product name or descriptor, and including any component, part, or accessory of such a device, whether or not sold separately, including but not limited to cartomizers, clearomizers, atomizers, and tips.

G. "E-liquid" means any liquid, gel or other substance designed for use with an electronic nicotine delivery system, including but not limited to e-juice, smoke juice or any other product name or descriptor. Excluded from this definition is any non-nicotine containing liquid, gel or other substance that contains cannabis in any form as its active ingredient.

H. "Flavored tobacco product" means any tobacco product that imparts a characterizing flavor.

I. "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.

J. "Labeling" means written, printed, or graphic matter upon any tobacco product or any of its packaging, or accompanying such tobacco product.

K. "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 three pounds per thousand units. "Little cigar" includes, but is not limited to, tobacco products known or labeled as small cigar, little cigar, or cigarillo.

L. "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.

M. "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.

N. "Pharmacy" 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.

O. "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 (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 can or does share, ultimate control over the day-to-day operations of a business.

P. "School" means a building or group of buildings and associated grounds used for educational and/or classroom purposes operated by the Berkeley Unified School District (BUSD) and/or other public or private educational institutions offering a general course of study at primary, secondary or high school levels (grades K through 12) which is equivalent to the courses of study at such levels offered by the BUSD, as specified by City Council Resolution from time to time. Pre-school, vocational or trade programs shall be considered schools only when incidental to the primary use as a school as defined herein. Excluded from this definition are buildings operated by public or private education institutions in which the total student enrollment is less than 25 students and private residences at which students participate in home-based or independent study programs.

Q. "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.

R. "Tobacco paraphernalia" means items or instruments designed for the consumption, or preparation for consumption, of any substance containing tobacco or derived from tobacco, including but not limited to cigarette papers or wrappers, pipes, hookahs, and cigarette rolling machines.

S. "Tobacco product" means:

1:Any substance containing, made of, or derived from tobacco or nicotine including but not limited to cigarettes, cigars, cigarillos, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, and shisha;

2:Any e-liquid;

3:Any electronic nicotine delivery system; and

4:Any tobacco paraphernalia.

"Tobacco product" does not include drugs, devices or combination products, authorized by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.

T. "Tobacco retailer" means any person or business that operates a store, stand, booth concession or other place at which the sales of tobacco products are made to purchasers for personal consumption or use. (Ord. 7673-NS § 2, 2019; Ord. 7441-NS § 3, 2015; Ord. 7377-NS § 2, 2014; Ord. 6720-NS § 2, 2002)

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 chapter, for each location at which that activity is to occur.

B. It shall be a violation of a tobacco retailer’s license for a licensee or their agent or employee to violate any local, state, or federal tobacco-related law.

C. Any tobacco retailer who as of September 15, 2015, was lawfully selling electronic nicotine delivery systems or e-liquids and was not otherwise required to have a tobacco retailer’s license shall be exempt from the requirements of subdivision A of this Section until January 1, 2016. (Ord. 7441-NS § 4, 2015; Ord. 6720-NS § 2, 2002)

A. It shall be a violation of a tobacco retailer’s license for a licensee or their agent or employee to sell or offer for sale, or to possess with intent to sell or offer for sale, any flavored tobacco product.

B. There shall be a rebuttable presumption that a tobacco retailer in possession of four or more flavored tobacco products, including, but not limited to, individual flavored tobacco products, packages of flavored tobacco products, or any combination thereof, possesses such flavored tobacco products with intent to sell or offer for sale.

C. 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, color, 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. (Ord. 7673-NS § 3, 2019)

A. It shall be a violation of a tobacco retailer’s license for a licensee or their agent or employee to sell or offer for sale, or to possess with the intent to sell or offer for sale, 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.

B. The price of each tobacco product offered for sale shall be clearly and conspicuously displayed to indicate the price of the product.

C. It shall be a violation of a tobacco retailer’s license for a licensee or their agent or employee to sell or offer for sale, or to possess with the intent to sell or offer for sale, to a consumer:

1. Any little cigar unless it is sold in a package of at least 20 (twenty) little cigars; or

2. Any cigar unless it is sold in a package of at least 6 (six) cigars.

D. No tobacco retailer shall sell to a consumer:

1. Cigarettes at a price that is less than $8.00 per package of 20 cigarettes, including all applicable taxes and fees;

2. Little cigars at a price that is less than $8.00 per package of little cigars, including all applicable taxes and fees; or

3. Cigars at a price that is less than $7.00 per cigar, including all applicable taxes and fees.

E. The minimum prices established in subdivision D shall be adjusted annually by the annual average of the percentage change in the Consumer Price Index for 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.

F. No tobacco retailer shall:

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. (Ord. 7673-NS § 4, 2019)

A. No new tobacco retailer license may be issued to a pharmacy.

B. No existing tobacco retailer license may be renewed by a pharmacy.

C. No new tobacco retailer license may be issued to authorize the sale of tobacco products within six hundred (600) feet of any school as measured by a straight line from the nearest point of the property line of the parcel on which the school is located to the nearest point of the property line of the parcel on which the business is located.

D.

1. Effective January 1, 2017, no person shall sell, give away, barter, exchange, or otherwise deal in electronic nicotine delivery systems or e-liquid within six hundred (600) feet of any school as measured by a straight line from the nearest point of the property line of the parcel on which the school is located to the nearest point of the property line of the parcel on which the business is located.

2. Subdivision D.1 shall not prohibit the sale of electronic nicotine delivery systems to persons who demonstrate that they are qualified patients or primary caregivers as defined in Health and Safety Code section 11362.7 or persons with identification cards issued pursuant to Health and Safety Code section 11362.71, provided that such electronic nicotine delivery systems are unaccompanied by any tobacco product defined in Sections 9.80.020.S.1 or 9.80.020.S.2.

E. A map identifying the areas falling within six hundred (600) feet of schools shall be adopted by the City Council by resolution, and may be amended from time to time. (Ord. 7673-NS § 5, 2019; Ord. 7441-NS § 5, 2015; Ord. 7377-NS § 3, 2014)

Sale by a dispensary to its members of tobacco paraphernalia or electronic nicotine delivery systems does not require a tobacco retailer license, provided that such tobacco paraphernalia and electronic nicotine delivery systems are unaccompanied by any tobacco product defined in Sections 9.80.020.K.1 or 9.80.020.K.2. (Ord. 7441-NS § 6, 2015)

A. 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.

B. It is the responsibility of each proprietor to be informed of the laws affecting the issuance of a tobacco retailer’s license.

C. A license that is issued in error or on the basis of false or misleading information supplied by a proprietor may be revoked pursuant to Section 9.80.090(B). All applications shall be submitted on a form supplied by the City and shall contain the following information:

1. The name, address, and telephone number of each proprietor.

2. The business name, address, and telephone number of the fixed location for which a tobacco retailer’s license is sought.

3. The name and mailing address authorized by each applicant to receive all license-related communications and notices (the "authorized address"). Failure to supply an authorized address shall be understood to consent to the provision of notice at the business address specified in paragraph 2, above.

4. Whether or not any applicant has previously been issued a license pursuant to this chapter that is or was at any time suspended or revoked and, if so, the dates of the suspension period or the date of revocation.

5. Such other information as the City deems necessary for the administration or enforcement of this chapter. (Ord. 6720-NS § 2, 2002)

A. Upon the receipt of an application for a tobacco retailer’s license and the license fee, the City shall issue a license unless:

1. The application is incomplete or inaccurate; or

2. The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect or by a proprietor which or who has had a license revoked, pursuant to Section 9.80.090; or

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.

4. The City has information that the proprietor or their agent or employee has violated any local, state or federal tobacco control law within the preceding thirty (30) day period.

B. A license shall be valid for one year and must be renewed no later than thirty (30) days prior to the expiration of the payment term.

C. If the information required in the license application pursuant to Section 9.80.040(C), items 1, 2, or 3, changes, a new tobacco retailer’s license is required before the business may continue to act as a tobacco retailer. For example, if a proprietor to whom a license has been issued changes business location, that proprietor must apply for a new license prior to acting as a tobacco retailer at the new location. If the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer. (Ord. 6720-NS § 2, 2002)

Each license shall be prominently displayed in a publicly visible location at the licensed premises. (Ord. 6720-NS § 2, 2002)

The City Council may by resolution establish fees for the administration of this chapter. (Ord. 6720-NS § 2, 2002)

A tobacco retailer’s license is nontransferable and is valid only for the person and location of license issued, unless it is suspended or revoked for cause, for the period indicated. (Ord. 6720-NS § 2, 2002)

A. In addition to any other penalty authorized by law, a tobacco retailer’s license may be suspended or revoked if the City finds, after notice to the licensee and opportunity to be heard, that the licensee or their agents or employees has violated the conditions of the license imposed pursuant to Section 9.80.030 above.

1. Upon a finding by the City of a first license violation within any five-year period, the license may be suspended for up to thirty (30) days.

2. Upon a finding by the City of a second license violation within any five-year period, the license may be suspended for up to ninety (90) days.

3. Upon a finding by the City of a third license violation within any five-year period, the license may be suspended for up to one (1) year.

4. Upon a finding by the City of a fourth license violation within any five-year period, the license may be revoked.

B. A tobacco retailer’s license may be canceled if the City finds, after notice and opportunity to be heard, that one of the following conditions exist. The revocation shall be without prejudice to the filing of a new application for a license.

1. The application is incomplete for failure to provide the information required by Section 9.80.040.

2. The information contained in the application, including supplemental information, if any, is found to be false in any material respect.

3. The application seeks authorization for a license that is unlawful as specified in Section 9.80.050(A)(3).

C. A decision of the City to revoke or suspend a license is appealable to a Hearing Officer and must be filed with the Hearing Officer at least ten working days prior to the commencement date of the license suspension or revocation. An appeal shall stay all proceedings in furtherance of the appealed action. Following appeal, the decision of the Hearing Officer may be appealed to the City Manager or their designee. A decision of the City Manager or their designee shall be the final decision of the City.

D. During a period of license suspension the tobacco retailer must remove from public view all tobacco products. (Ord. 6720-NS § 2, 2002)

The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity.

A. A violation of this chapter is a misdemeanor punishable as set forth in Chapter 1.20 of this code, but may be charged, in the discretion of the prosecutor, as an infraction.

B. Violations of this chapter are hereby declared to be public nuisances.

C. In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the City Attorney.

D. In any civil action filed pursuant to this chapter, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs; provided, that, pursuant to Government Code Section 38773.5, attorneys’ fees shall only be available in an action or proceeding in which the City has elected, at the commencement of such action or proceeding, to seek recovery of its own attorneys’ fees. In no action or proceeding shall an award of attorneys’ fees to a prevailing party exceed the amount of reasonable attorneys’ fees incurred by the City in the action or proceeding.

E. Any person acting for the interests of itself, its members, or the general public may bring an action for injunctive relief to prevent future violations or to recover such actual damages as they may prove. (Ord. 7174-NS § 1, 2011; Ord. 6720-NS § 2, 2002)