Calabasas Municipal Code Ch. 5.18 Tobacco Retailer Registration Ordinance

This chapter shall be known as the "Tobacco Retailer Registration Ordinance" of the City of Calabasas.

(Ord. No. 2009-259, § 2, 6-10-2009)

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 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, 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.

"Department" means community development department, and any other agency or person tasked by the city manager of the city with enforcement of this chapter.

"Director" and community development director, mean the community development director of the city and any other person tasked by the city manager of the city with enforcement of this chapter.

"Electronic cigarette" means any of the following products:

(1) Any device or delivery system that can be used to deliver nicotine or flavored tobacco products in aerosolized or vaporized form, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah.

(2) Any component, part, or accessory of such a device or delivery system that is used during its operation.

(3) Any flavored or unflavored liquid or substance containing nicotine, whether sold separately or sold in combination with any device or delivery system that could be used to deliver nicotine in aerosolized or vaporized form.

(4) Any product for use in an electronic nicotine device or delivery system whether or not it contains nicotine or tobacco or is derived from nicotine or tobacco.

(5) Electronic cigarette products shall not include any battery, battery charger, carrying case, or other accessory not used in the operation of the device if sold separately. Electronic cigarette products shall 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 that product is marketed and sold solely for such approved use. As used in this subsection, nicotine does not include any food products as that term is defined pursuant to Section 6359 of the California Revenue and Taxation Code.

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

"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 (10) 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 can or does have or share ultimate control over the day-to-day operations of a business.

"Self-service display" means the open display or storage of tobacco products or tobacco paraphernalia 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.

"Smoking" means possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind).

"Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.

"Tobacco product" means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; any electronic 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; and any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.

"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

(Ord. No. 2009-259, § 2, 6-10-2009; Ord. 2020-383, § 2, 5-27-2020)

A. Tobacco Retailer Registration Required. 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 registration pursuant to this chapter for each location at which that activity is to occur.

B. Lawful Business Operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a registration issued, it shall be a violation of this chapter for a registered tobacco retailer, or any of the registered tobacco retailer's agents or employees, to violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.

C. Display of Registration. Each tobacco retailer registration shall be prominently displayed in a publicly visible location at the registered location.

D. Positive Identification Required. 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.

E. Minimum Age for Persons Selling Tobacco. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing.

F. Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.

G. False and Misleading Advertising Prohibited. A tobacco retailer or proprietor without a valid tobacco retailer registration, including, for example, a person whose registration has been revoked:

1. Shall keep all tobacco products and tobacco paraphernalia out of public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a registration under Section 5.18.120; and

2. Shall not display 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.

H. Sales of Electronic Cigarette Products Prohibited. No tobacco retailer shall sell or distribute any electronic cigarette product in retail establishments located within the City of Calabasas, including any non-flavored, mint, menthol, or flavored electronic cigarette product.

(Ord. No. 2009-259, § 2, 6-10-2009; Ord. No. 2020-383, § 3, 5-27-2020)

A. No registration may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.

B. No registration may issue to authorize tobacco retailing within five hundred (500) feet of any primary or secondary school located in the city of Calabasas for such retailing is prohibited by Section 17.12.225 of this code.

(Ord. No. 2009-259, § 2, 6-10-2009; Ord. No. 2010-272, § 4, 4-28-2010)

A. Application for a tobacco retailer's registration 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.

It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer's registration. No person may rely on the issuance of a registration as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing. A registration issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 5.18.110(D) of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer's registration any status or right to act as a tobacco retailer in contravention of any provision of law.

All applications shall be submitted on a form supplied by the department and shall contain the following information:

1. The name, address, and telephone number of each proprietor of the business seeking a registration.

2. The business name, address, and telephone number of the single, fixed location for which a registration is sought.

3. A single name and mailing address authorized by each proprietor to receive all communications and notices (the "Authorized Address") required by, authorized by, or convenient to the enforcement of this chapter. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subparagraph 2 above.

4. Proof that the location for which a tobacco retailer's registration is sought has been issued a valid state tobacco retailer's license by the California Board of Equalization.

5. Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter and, if so, the dates and locations of all such violations within the previous five years.

6. Such other information as the department deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.

B. A registered tobacco retailer shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer's registration within ten (10) business days of a change.

C. All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code section 6250 et seq.) or any other applicable law, subject to the laws' exemptions.

(Ord. No. 2009-259, § 2, 6-10-2009)

Upon the receipt of a complete application for a tobacco retailer's registration, the department shall issue a registration unless substantial evidence demonstrates that one or more of the following bases for denial exists:

A. The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter.

B. The application seeks authorization for tobacco retailing at a location for which this chapter prohibits issuance of tobacco retailer registrations. However, this subparagraph shall not constitute a basis for denial of a registration if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm's length transaction.

C. The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a registration to be issued.

D. The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter (e.g., mobile vending)], that is unlawful pursuant to this code, or that is unlawful pursuant to any other law.

(Ord. No. 2009-259, § 2, 6-10-2009)

A. Renewal of Registration. A tobacco retailer's registration is invalid if its term has expired. The term of a tobacco retailer registration is one year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's registration no later than thirty (30) days prior to expiration of the term.

B. Expiration of Registration. A tobacco retailer's registration that is not timely renewed shall expire at the end of its term. To renew a registration not timely renewed pursuant to subparagraph A, the proprietor must:

1. Submit the registration application renewal form; and

2. Submit a signed affidavit affirming that the proprietor:

(i) Has not sold and will not sell any tobacco product or tobacco paraphernalia after the registration expiration date and before the registration is renewed; or

(ii) Has waited the appropriate ineligibility period established for tobacco retailing without a registration, as set forth in Section 5.18.120(A) of this chapter, before seeking renewal of the registration.

(Ord. No. 2009-259, § 2, 6-10-2009)

A. A tobacco retailer's registration may not be transferred from one person to another or from one location to another. A new tobacco retailer's registration is required to accomplish either change.

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

1. The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors; and

2. The new proprietor(s) provide the city with clear and convincing evidence that the new proprietor(s) have acquired or is acquiring the location in an arm's length transaction.

(Ord. No. 2009-259, § 2, 6-10-2009)

Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer's registration 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 registration. For example, 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, any provision of this code, including without limitation chapters 8.12 and title 17 and any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code section 6404.5. For example, obtaining a tobacco retailer registration does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code section 6404.5.

(Ord. No. 2009-259, § 2, 6-10-2009)

A. Compliance with this chapter shall be monitored by the department. In addition, any peace officer may enforce the penal provisions of this chapter. The city may designate any number of additional persons to monitor compliance with this chapter.

B. The department or other person designated to enforce the provisions of this chapter should check the compliance of each tobacco retailer at least three times per twelve-month period. The department may check the compliance of tobacco retailers previously found to be in compliance a fewer number of times so that the department may check the compliance of new registrations and tobacco retailers previously found in violation of the registration law more frequently. Nothing in this paragraph shall create a right of action in any registered tobacco retailer or other person against the city or its agents.

C. Compliance checks shall be conducted so as to allow the department to determine, at a minimum, if a tobacco retailer is complying with laws regulating youth access to tobacco. When the department deems appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing.

D. 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 (hereinafter "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 official 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 the city or the California Department of Health Services.

(Ord. No. 2009-259, § 2, 6-10-2009)

A. Revocation of Registration for Violation. In addition to any other penalty authorized by law, a tobacco retailer's registration shall be revoked if any court of competent jurisdiction determines, or the department finds based on a preponderance of the evidence, after the registered tobacco retailer is afforded notice and an opportunity to be heard, that the registered tobacco retailer, or any of the registered tobacco retailer's agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter or has pleaded guilty, "no contest" or its equivalent, or admitted to, a violation of any law designated in Section 5.18.030 above.

B. New Registration After Revocation.

1. After revocation for a first violation of this chapter at a location within any sixty-month period, no new registration may issue for that location until three (3) months have passed from the date of revocation.

2. After revocation for a second violation of this chapter at a location within any sixty-month period, no new registration may issue for that location until six (6) months have passed from the date of revocation.

3. After revocation for a third violation of this chapter at a location within any sixty-month period, no new registration may issue for that location until one (1) year has passed from the date of revocation.

4. After revocation for four (4) or more violations of this chapter at a location within any sixty-month period, no new registration may issue for the location until five (5) years have passed from the date of revocation.

C. Appeal of Revocation. A decision of the department to revoke a registration is appealable to the city manager and must be filed with city clerk within ten (10) days of mailing of the department's decision. Any appeal shall be accompanied by an appeal fee in the amount of two hundred fifty dollars ($250.00). If such an appeal is made, it shall stay enforcement of the appealed action. The hearing by the city manager shall be conducted pursuant to Section 8.20.110.A. of this Code. The decision by the city manager shall be the final decision of the city and not subject to further administrative appeal. The decision of the city manager shall be served on the appellant and shall be subject to judicial review in the manner specified in Code of Civil Procedure Section 1094.5. The timely filing and diligent prosecution of an appeal to the city manager is an administrative remedy which must be exhausted before judicial review may be sought. An appeal to the city manager is not available for a revocation made pursuant to subsection D. below.

D. Revocation of Registration Wrongly Issued. A tobacco retailer's registration shall be revoked if the department finds, after the registered tobacco retailer is afforded notice and an opportunity to be heard, that one (1) or more of the bases for denial of a registration under Section 5.18.060 existed at the time application was made or at any time before the registration issued. The decision by the department shall be the final decision of the city and not subject to administrative appeal. Such a revocation shall be without prejudice to the filing of a new registration application.

E. Notice of Violation. Upon a final determination by the city to revoke a tobacco retailer's registration under this chapter, the tobacco retailer shall prominently display notice of the revocation in a form specified by the city manager at the previously registered location of tobacco sales for the length of time the registration is revoked.

(Ord. No. 2009-259, § 2, 6-10-2009; Ord. No. 2013-306, § I, 10-9-2013)

A. In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the department finds based on a preponderance of evidence, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer's registration, either directly or through the person's agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailing registration as follows:

1. After a first violation of this section at a location within any sixty-month-period, no new registration may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until thirty (30) days have passed from the date of the violation.

2. After a second violation of this section at a location within any sixty-month-period, no new registration may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until ninety (90) days have passed from the date of the violation.

3. After of a third or subsequent violation of this section at a location within any sixty-month-period, no new registration may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until five years have passed from the date of the violation.

B. Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this section are subject to seizure by the department or any peace officer and shall be forfeited after the tobacco retailer and any other owner of the tobacco products and tobacco paraphernalia seized is given reasonable notice and an opportunity to demonstrate that the tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this chapter. The decision by the department may be appealed pursuant to the procedures set forth in Section 5.18.110(C). Forfeited tobacco products and tobacco paraphernalia shall be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure section 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed, after judgment in that suit becomes final.

C. For the purposes of the civil remedies provided in this chapter:

1. Each day on which a tobacco product or tobacco paraphernalia is offered for sale in violation of this chapter; or

2. Each individual retail tobacco product and each individual retail item of tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this chapter shall constitute a separate violation of this chapter.

(Ord. No. 2009-259, § 2, 6-10-2009)

A. The remedies provided by this chapter are cumulative and in addition to any other remedies available by this Code or otherwise at law or in equity.

B. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen (18) years old, 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.

C. Violations of this chapter are subject to a civil penalty of one thousand dollars ($1,000.00) for each violation. The civil penalty shall be recoverable in an action brought in a court of competent jurisdiction by the city prosecutor or city attorney, or in the case of an action brought in small claims court, by the director of community development or their designee.

D. Violations of this chapter may, in the discretion of the city prosecutor, be prosecuted as infractions or misdemeanors when the interests of justice so require.

E. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.

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

G. In addition to other remedies provided by this chapter, by another provision of this code, or by other law, any violation of this chapter may be remedied by a civil action brought by the city attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

H. The city manager shall annually report to the city council regarding the enforcement of this chapter in the prior year. The report shall include: (i) the number of tobacco retailers found to have violated this chapter; (ii) the number of enforcement actions taken with respect to each tobacco retailer under Section 5.18.100, (iii) the cost to the city of enforcement of this chapter, and (iv) whether additional enforcement funds are needed and, if so, whether he or she recommends those funds be derived from the city's general fund, fees imposed for the issuance of registrations under this chapter, or the proceeds of fines and penalties paid to the city under this chapter.

(Ord. No. 2009-259, § 2, 6-10-2009; Ord. No. 2013-306, § III, 10-9-2013)