Corte Madera Municipal Code Ch. 5.06 Tobacco Retailer License

This chapter shall be known as the "Corte Madera Tobacco Retail License Ordinance."

(Ord. No. 983, § 2, 3-19-2019)

The Marin County Tobacco Control Program considers local tobacco retail license regulations an effective deterrent to the violation of existing tobacco laws. Tobacco retail license ordinances restrict youth access to tobacco and tobacco products by providing a mechanism for revoking a retailer's ability to sell tobacco. Additionally, communities are adopting local prohibitions against the sale of flavored tobacco products as a way to further reduce smoking and promote public health.

(Ord. No. 983, § 2, 3-19-2019)

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

(1) "Arm's length transaction" means a sale in good faith and for valuable consideration that reflects the fair market value 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.

(2) "Cigar" means:

a. Any roll of tobacco wrapped entirely or in part in tobacco or in any substance containing tobacco; or

b. Any paper or wrapper that contains tobacco and is designed for smoking or ingestion of tobacco products.

c. For the purposes of this subsection, "cigar" includes, but is not limited to, tobacco products known or labeled as "cigar," "cigarillo," "tiparillo," "little cigar," "blunt wrap," or "cigar wrap."

(3) "Characterizing flavor" means a taste or aroma, other than the taste or aroma of tobacco, 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 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.

(4) "Constituent" 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.

(5) "Department" means the town manager or that person's delegee.

(6) "Distinguishable" means perceivable by either the sense of smell or taste.

(7) "Electronic smoking device" means an electronic device which can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately. "Electronic smoking device" includes any such electronic smoking device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.

(8) "Flavored tobacco product" means any tobacco product that imparts a characterizing flavor.

(9) "Pharmacy" means a retail establishment in which the profession of pharmacy by a pharmacist licensed by the State of California in accordance with the Business and Professions Code is practiced and where prescriptions are offered for sale. A pharmacy may also offer other retail goods in addition to prescription pharmaceuticals.

(10) "Proprietor" means a person with an ownership interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt.

(11) "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.

(12) "Tobacco paraphernalia" means any item designed or marketed for the consumption, use, or preparation of tobacco products.

(13) "Tobacco product" means:

a. 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, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, or any other preparation of tobacco; and

b. 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.

(14) Notwithstanding any provision of subsections (1) and (2) to the contrary, "tobacco product" includes any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately, 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. "Tobacco product" 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 products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

(Ord. No. 983, § 2, 3-19-2019)

(a) Tobacco Retailer's License Requirement. It shall be unlawful for any person to act as a tobacco retailer in town without first obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which tobacco retailing is to occur. Tobacco retailing without a valid tobacco retailer's license is a nuisance as a matter of law.

(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 license is issued, it shall be a violation of this chapter for a licensee, or any of the licensee's agents or employees, to violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.

(c) Display of license. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

(d) Positive Identification Required. No person engaged in tobacco retailing shall sell a tobacco product or tobacco paraphernalia to another person who appears to be under the age of twenty-seven years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age for sale of tobacco products as established by state law.

(e) Minimum Age for People Selling Tobacco. No person who is younger than twenty-one years of age 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 without a valid tobacco retailer license or a proprietor without a valid tobacco retailer license, including, for example, a person whose license has been suspended or 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 license under Section 5.06.130; 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) Sale of Flavored Tobacco Products Prohibited. No tobacco retailer shall sell a tobacco product containing, as a constituent or additive, an artificial or natural flavor or an herb or spice, including without limitation strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, coffee, menthol, mint or wintergreen that is a characterizing flavor of the tobacco product or smoke produced by the tobacco product.

(i) Minimum Package Size For Cigars. Notwithstanding any other provision of this section, it shall be a violation of this section for any licensee or any of the licensee's agents or employees to sell, offer for sale, or exchange for any form of consideration:

(1) Any single cigar, whether or not packaged for individual sale;

(2) Any number of cigars fewer than the number contained in the manufacturer's original consumer packaging designed for retail sale to a consumer; or

(3) Any package of cigars containing fewer than five cigars.

This subsection (i) does not apply to the sale or offer for sale of a single cigar for which the retail price exceeds five dollars.

(j) Pharmacies Cannot Sell Tobacco Products. No license may be issued to authorize tobacco retailing in a pharmacy and no pharmacy shall engage in tobacco retailing at any time.

(Ord. No. 983, § 2, 3-19-2019)

(a) An application for a tobacco retailer's license shall be submitted in the name of each proprietor proposing to conduct or conducting 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 license. No proprietor may rely on the issuance of a license as a determination by the town that the proprietor has complied with all laws applicable to tobacco retailing. A license 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 5.06.120(c) of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer's license any status or right to act as a tobacco retailer in contravention of any provision of law.

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

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

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

c. A single name and mailing address authorized by each proprietor to receive all communications and notices (the "authorized person and 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 (b) above.

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

e. 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 licensed tobacco retailer shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer's license within ten 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 law's exemptions.

(Ord. No. 983, § 2, 3-19-2019)

(a) Bases for Denial of License. Upon the receipt of a complete application for a tobacco retailer's license and the license fee required by this chapter, the department shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:

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

(2) The application seeks authorization for tobacco retailing at a location for which this chapter prohibits a licensed to be issued. However, this subparagraph shall not constitute a basis for denial of a license if the applicant provides the town 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;

(3) The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued;

(b) The application seeks authorization for tobacco retailing at a location, that is unlawful pursuant to this code, including without limitation, a provision of a zoning ordinance or building code, or that is unlawful pursuant to any other law.

(c) Appeal of Denial of License. Subject to 5.06.120(c), a decision of the department to deny a license is appealable to the town council under Title 5, Section 5.04.210 of the Corte Madera Municipal Code.

(Ord. No. 983, § 2, 3-19-2019)

(a) Renewal of License. A tobacco retailer's license is invalid if the appropriate fee has not been timely paid in full or if the term of the license has expired. The term of a tobacco retailer's license is one calendar year. Each tobacco retailer shall apply for the renewal of their tobacco retailer's license and submit the license fee no later than January 1 of each year and annually thereafter.

(b) Expiration of License. A tobacco retailer's license that is not timely renewed shall expire on December 31 of each year. To renew a license not timely renewed pursuant to subparagraph (a) above, the proprietor must:

(1) Submit the license fee and the renewal form; and

(2) Submit a signed affidavit affirming that the proprietor has not sold and will not sell any tobacco product or tobacco paraphernalia after the license expiration date and before the license is renewed.

(Ord. No. 983, § 2, 3-19-2019)

(a) A tobacco retailer's license may not be transferred from one location to another.

(b) A new tobacco retailer's license is required whenever a tobacco retailing location has a change in proprietor(s).

(c) Notwithstanding any other provision of this section, 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 new proprietor(s) provide the department with clear and convincing evidence that the new proprietor(s) have acquired or are acquiring the location in an arm's length transaction.

(Ord. No. 983, § 2, 3-19-2019)

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 limited conditional privilege to act as a tobacco retailer at the location in the town identified on the face of the license. For example, nothing in this section 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, the zoning ordinance and building codes, or 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 license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code Section 6404.5.

(Ord. No. 983, § 2, 3-19-2019)

The fee to issue or to renew a tobacco retailer's license shall be established from time to time by resolution of the town council. The fee shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this chapter. Fees are nonrefundable except as may be required by law.

(Ord. No. 983, § 2, 3-19-2019)

(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 department may designate any number of additional persons to monitor compliance with this chapter.

(b) The department will work with Marin County Tobacco Program to inspect each tobacco retailer at least one time per twelve-month period. Nothing in this paragraph shall create a right of action in any licensee or other person against the town or its agents.

(Ord. No. 983, § 2, 3-19-2019)

(a) Suspension or Revocation of License for Violation. In addition to any other penalty authorized by law, a tobacco retailer's license shall be suspended or revoked if any court of competent jurisdiction determines, or the department finds based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee'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 5.06.040 above.

(1) Upon finding by the department of a first violation, the tobacco retailer will be issued a warning.

(2) Upon a finding by the department of a second violation of this chapter at a location within any sixty-month period, the license shall be suspended for thirty days.

(3) Upon a finding by the department of a third violation of this chapter at a location within any sixty-month period, the license shall be suspended for ninety days.

(4) Upon a finding by the department of a fourth violation of this chapter at a location within any sixty-month period, the license shall be suspended for one year. Upon a finding by the department of five or more violations of this chapter at a location within any sixty-month period, the license shall be revoked.

(b) Appeal Of Suspension Or Revocation. A department decision to suspend or revoke a license is appealable under Title 5, Section 5.04.210 of the Corte Madera Municipal Code. If such an appeal is timely made, it shall stay enforcement of the appealed action. An appeal to the town council is not available for a revocation made pursuant to subsection 3 below.

(c) Revocation of License Wrongly Issued. A tobacco retailer's license shall be revoked if the department finds, after the licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 5.06.090 existed at the time the application was submitted or at any time before the license issued. The decision by the department shall be the final decision of the town. Such a revocation shall be without prejudice to the filing of a new license application.

(d) Judicial Action. Any final administrative action to suspend or revoke a tobacco retailer's license under this section shall be subject to judicial review pursuant to California Government Code Section 53069.4, which, among other things, requires such a judicial challenge to be brought within twenty days of service of the final decision.

(Ord. No. 983, § 2, 3-19-2019)

(a) In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the town council 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 license, either directly or through the person's agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailer's license as follows:

(1) After a first violation of this section at a location within any sixty-month period, no new license 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 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 license 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 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 license 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 sixty-months 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 licensee 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 section. The decision by the department may be appealed pursuant to the procedures set forth in section 5.06.120(b). 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 section, each of the following constitutes a separate violation of this section:

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

(Ord. No. 983, § 2, 3-19-2019)

(a) The remedies provided by this chapter are cumulative and in addition to any other remedies available 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 twenty-one 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 action brought by the town attorney, punishable by a civil fine not less than two hundred fifty dollars and not exceeding one thousand dollars per violation.

(d) Violations of this chapter may, in the discretion of the town attorney, 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 or by other law, any violation of this chapter may be remedied by a civil action brought by the town attorney including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(Ord. No. 983, § 2, 3-19-2019)

This chapter shall not be enforced until January 1, 2020.

(Ord. No. 983, § 2, 3-19-2019)