Burbank Municipal Code Art. 25 Retail Tobacco Sales (CA)

3-4-2501: PURPOSE AND INTENT:

A. It is the intent of the City Council, in enacting this ordinance, to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco and nicotine products to minors.

B. Further, it is the intent of the Council in enacting the amendments to this ordinance to further the public health of all Burbank’s constituents, but especially underage consumers, and the amendments are focused on those products marketed directly to our community’s youth. [Added by Ord. No. 3714, eff. 3/27/07; Amended by Ord. No. 19-3,921, eff. 11/15/19.]

3-4-2502: DEFINITIONS:

For the purpose of this Article 25, Retail Tobacco Sales, the following terms shall have the meanings defined in this section unless the context clearly requires otherwise:

A. ARM’S LENGTH TRANSACTION: Shall mean a sale in good faith and for valuable consideration that reflects the fair market value in the open market, between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, partners, corporate or other entities which have some or all of the same directors and/or principles, or any sale for which a significant purpose is avoiding the effect of the violations of this article is not an Arm’s Length Transaction.

B. CHARACTERIZING FLAVOR: Shall mean a taste or aroma, other than the taste or aroma of tobacco, imparted prior to or during consumption of a Tobacco Product or any byproduct produced by the Tobacco Product including, but not limited to, tastes or aroma relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, 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.

C. CONSUMER: Shall mean a Person who purchases a Tobacco Product for consumption and not for Sale to another.

D. DEPARTMENT: Shall mean the City’s Community Development Department.

E. FLAVORED TOBACCO PRODUCT: Shall mean any Tobacco Product that contains a constituent that imparts a Characterizing Flavor. For purposes of this definition, “constituent” means any ingredient, substance, chemical or compound, other than tobacco, water or reconstituted tobacco sheet added by the manufacturer to the Tobacco Product during the processing, manufacturing or packing of the Tobacco Product.

F. PERSON: Shall mean any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

G. PROPRIETOR: Shall mean a Person with an ownership or managerial interest in a tobacco retail establishment. 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 share ultimate control over the day-to-day operations of a business.

H. SELF-SERVICE DISPLAY: Shall mean the open display of Tobacco Products or Tobacco Paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. A Vending Machine is a form of Self-Service Display.

I. TOBACCO BAR: Shall mean a smoking bar including a hookah bar that, in the calendar year ending December 31, 2018, and each calendared year thereafter, generated 70 percent or more of its total annual gross income from the on-site sale of tobacco products and the rental of on-site humidors or hookah pipes, not including any sales from vending machines, and is registered with the Department. Existing hookah lounges (located at 260 E Magnolia Boulevard, 270 E Magnolia Boulevard and 112 N San Fernando Boulevard) are exempted from the 70 minimum revenue percentage as long as the business remains in its current location AND under current ownership.

J. TOBACCO PARAPHERNALIA: Shall mean cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other instrument or paraphernalia designed for the smoking, preparation, storing, ingestion or consumption of Tobacco Products.

K. TOBACCO PRODUCT: Shall mean (1) 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, snuff; and (2) any electronic smoking 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. “Tobacco Product” also includes any component, part, or accessory of a Tobacco Product, whether or not sold separately. “Tobacco Product” does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration including cessation products specifically approved by the U.S. Food and Drug Administration for use in treating nicotine or tobacco dependence.

L. TOBACCO RETAILER: Shall mean any Person who sells, offers for sale, or does or offers to exchange for any form of consideration, in public view, tobacco, Tobacco Products, or Tobacco Paraphernalia. Any person who distributes free or low cost samples of Tobacco Products or Tobacco Paraphernalia shall be deemed to be a Tobacco Retailer under this Article.

M. VENDING MACHINE: Shall mean a machine, appliance, or other mechanical device operated by currency, token, debit card, credit card, or any other form of payment that is designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

N. YOUTH DECOY: Shall mean a person under the age of 21 who is used by the police department to conduct random onsite sting investigations to determine compliance with tobacco retailing laws. [Added by Ord. No. 3714, eff. 3/27/07; Amended by Ord. No. 19-3,921, eff. 11/15/19.]

3-4-2503: TOBACCO RETAILER LICENSE REQUIRED:

A. No person shall engage in or operate as a Tobacco Retailer without first obtaining and maintaining a valid Tobacco Retailer’s license pursuant to this Article for each location at which that activity is to occur. In addition to the criminal penalties attached to violations of this section, Tobacco Retailing without a valid Tobacco Retailer’s license is a public nuisance.

B. The display of 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 without first obtaining and maintaining a valid Tobacco Retailer’s license pursuant to this Article for each location at which the advertisement is displayed is prohibited.

C. The sale of tobacco products or tobacco paraphernalia from other than a fixed location, including but not limited to Tobacco Retailing by persons on foot or from vehicles is prohibited and no license shall be issued under this article to any such activity.

D. Nothing in this article 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 permitted location in the City of Burbank. Nothing in this article is intended to be construed to render inapplicable, supercede, or affect any other provision of applicable law, including but not limited to, any provision of this Code, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code section 6404.5.

E. Violations of this chapter constitute a misdemeanor.

F. In addition to the above remedy, a violation of this chapter may be remedied by a civil injunction or abatement action initiated by the city attorney. [Added by Ord. No. 3714, eff. 3/27/07.]

3-4-2504: APPLICATION PROCEDURE:

A. Applicants for a license under this Article shall pay a non-refundable license fee in the amount as set forth in the Burbank Fee Resolution.

B. All applications shall be completed on a form prepared and supplied by the responsible City department. The application shall be signed under penalty of perjury. The following information shall be included, without limitation in the application:

The name, address and telephone number of the proprietor, including, for non-corporate proprietors, the names of all principles. Corporate proprietors shall include the name of the designated agent for service of process.
The name, address and telephone number of a responsible person or persons designated by the proprietor to receive any notices from the City relating to the business.
The business name, address and telephone number of the retail location.
Whether any other licenses have been issued to applicant for tobacco retail sales within the City of Burbank, and if so the name and address of the businesses for which these licenses have been issued.
A statement by the proprietor under penalty of perjury that the contents of the application are true and correct. False statements on the application shall be cause for license revocation.
For retailers with multiple locations within the City of Burbank, a separate application is required for each proposed retail location.

C. No license shall be issued without satisfactory proof that the Tobacco Retailer has obtained a valid state tobacco retailer’s license from the California Board of Equalization.

D. Applicant shall be required to disclose any violations of the State tobacco licensing laws at any location within the City of Burbank within the five years prior to the application for which applicant’s state tobacco retailer’s license was either suspended or revoked. [Added by Ord. No. 3714, eff. 3/27/07.]

3-4-2505: ISSUANCE OF LICENSE:

A. Except as otherwise provided herein, and except where a Tobacco Retailer’s establishment would be not otherwise be permitted under local, state and/or federal laws, a license shall be issued upon receipt of a complete application and conformity with all of the requirements set forth in the Application Procedure section of this Article, and payment of the license fee.

B. A Tobacco Retailer’s license will not be issued where:

Suspension or revocation proceedings have been initiated by any local, state or federal agency for violations of local, state or federal tobacco control laws within the preceding thirty (30) day period.
Proprietor or any person employed by proprietor has been convicted of any violation of any local, state or federal tobacco control laws within six (6) months prior to the date of application.

C. Every license issued under this Article shall be posted and displayed at all times in a conspicuous place within the business location that is visible within the public portions of the business.

D. A Tobacco Retailer’s license is valid only for the location for which it has been issued and may not be transferred from one Person to another or from one location to another.

E. Notwithstanding any other provision of this article, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:

The location has been fully transferred to a new Proprietor or fully transferred to entirely new Proprietors; and
The new Proprietor provides the City with clear and convincing evidence that the new Proprietor has acquired the location in an Arm’s Length Transaction. [Added by Ord. No. 3714, eff. 3/27/07.]

3-4-2506: LICENSE RENEWAL AND EXPIRATION:

A. A Tobacco Retailer license will be valid until June 30 of every year and if not renewed, will expire. Each Tobacco Retailer shall apply for the renewal of their Tobacco Retailer’s license and submit the license fee no later than thirty (30) days prior to expiration of the term.

B. If any material information required for issuance of a license herein has changed since the original license was issued, a new tobacco retailer’s license is required before the business may continue to act as a tobacco retailer. [Added by Ord. No. 3714, eff. 3/27/07.]

3-4-2507: POSITIVE IDENTIFICATION REQUIRED; MINIMUM AGE TO SELL TOBACCO PRODUCTS:

A. 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 twenty-seven (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. No Tobacco Retailer shall permit any person who is younger than the minimum age established by state law for the purchase or possession of Tobacco Products, to engage or participate in the sale of tobacco products or tobacco paraphernalia. [Added by Ord. No. 3714, eff. 3/27/07.]

3-4-2508: SALE OF FLAVORED TOBACCO PRODUCTS PROHIBITED:6

A. It shall be a violation of this Article for any Tobacco Retailer or any of the Tobacco Retailer’s agents or employees to sell or offer for sale, or to possess with intent to sell or offer for sale, any Flavored Tobacco Product except in a Tobacco Bar, whose sales of Flavored Tobacco Products are limited to onsite use only by customers at least 21 years of age, and except for hookah tobacco in a form that may only be used in a non-electronic hookah pipe or water pipe.

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:

Makes or disseminates a public statement or claim to the effect that the Tobacco Product imparts a Characterizing Flavor; or
Uses text and/or images on the Tobacco Product’s Labeling or Packaging that explicitly indicate that the Tobacco Product imparts a Characterizing Flavor. [Added by Ord. No. 19-3,921, eff. 11/15/19.]

3-4-2509: COMPLIANCE MONITORING AND ENFORCEMENT:

A. The provisions of this chapter shall be enforced by the Burbank Police Department, an authorized designee of the Community Development Department, or by any other person or persons so designated by the City Manager.

B. Compliance checks shall determine, at a minimum, if the Tobacco Retailer is conducting business in a manner that complies with tobacco laws regulating youth access to tobacco and is complying with the ban on selling, offering for sale or possession with the intent to sell Flavored Tobacco Products.

C. The City may use persons under the age of 21, but not younger than 15 (youth decoys) to conduct random onsite sting inspections to determine whether or not a Tobacco Retailer is in compliance with all state and local laws relative to retail sales of tobacco products and tobacco paraphernalia. These youth decoys may be used for compliance and enforcement activities supervised by a peace officer. Participation in these enforcement and compliance activities by a person under the age of 21 shall not constitute a violation of Penal Code section 308 and the person under 21 years of age is immune from prosecution under any provision of law prohibiting the purchase of tobacco products by a person under 18 years of age. [Formerly numbered Section 3-4-2508; Added by Ord. No. 3714, eff. 3/27/07; Amended by Ord. No. 19-3,921, eff. 11/15/19; 3828.]

3-4-2510: SUSPENSION AND REVOCATION:

A. In addition to any other penalty authorized by law, a Tobacco Retailer’s license may be suspended or revoked by the Community Development Director if it is determined that the licensee or their agents or employees has violated the conditions of the license imposed pursuant to this article, or Section 3-4-2508, or any other state or federal law pertaining to the sale of tobacco products to underage minors.

B. A Tobacco Retailer’s license may be revoked by the Community Development Director if one of the following conditions exist.

The information contained in the application, including supplemental information, if any, is found to be false in any material respect;
The license was issued in error or on the basis of false or misleading information supplied by a Proprietor.

C. The procedure used for revocation shall substantially conform to that set forth in Title 2, Chapter 1 Article 15 of the Burbank Municipal Code or its successor provisions.

D. Upon a finding of a first license violation, the license may be suspended for up to thirty (30) days:

Upon a finding of a second license violation within a five-year period of the first violation, or a first violation of Section 3-4-2508, the license may be suspended for up to ninety (90) days;
Upon a finding by the City of a third license violation or a second violation of Section 3-4-2508 within five years of the first violation, the license may be revoked.

E. A Tobacco Retailer whose license has been revoked may not apply for a new tobacco retailer’s license for a period of 60 days after the effective date of the revocation.

F. Any decision to revoke or suspend a license may be appealed according to the provisions of Section 2-1-1501 of the Burbank Municipal Code herein. An appeal shall stay all proceedings in furtherance of the appealed action.

G. During any period of license suspension or revocation, the Tobacco Retailer must remove from public view all tobacco products and tobacco-related advertising. [Formerly numbered Section 3-4-2509; Added by Ord. No. 3714, eff. 3/27/07; Amended by Ord. No. 19-3,921, eff. 11/15/19; 3828.]

3-4-2511: OUTREACH AND EDUCATION:

The Department, in conjunction with the Police Department shall develop and conduct a Tobacco Retailer outreach and education program designed to inform Tobacco Retailers about the ban on Flavored Tobacco Products before enforcement of Section 3-4-2508 begins on May 1, 2020. [Added by Ord. No. 19-3,921, eff. 11/15/19.]