East Palo Alto Municipal Code Ch. 5.80 Tobacco Retailer

Footnotes:

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Editor's note— Ord. No. 317 § 1, adopted Oct. 7, 2008, amended Ch. 5.80 in its entirety to read as herein set out. Former Ch. 5.80, §§ 5.80.010—5.80.070, pertained to similar subject matter and derived from Ord. 228 §§ 1—7, adopted in 1998.

For the purposes of this chapter, the following definitions shall govern unless the context clearly requires otherwise:

A. "Characterizing flavor" means a distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, tastes or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. 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. Rather, it is the presence of a distinguishable taste or aroma or both, as described in the first sentence of this definition that constitutes a characterizing flavor.

B. "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.

C. "Director" shall mean the Director of the San Mateo County Environmental Health Division or designee, the City of East Palo Alto City Manager or designee or code enforcement officer.

D. "Distinguishable" means perceivable by either the sense of smell or taste.

E. "Electronic cigarette" means any of the following products:

1. Any device or delivery system that can be used to deliver nicotine 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.

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

G. "Person" means any individual, partnership, cooperative association, private corporation or any other legal entity.

H. "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.

I. "Sell", "sale" or "to sell" means any transaction where for any consideration ownership is transferred from one person or entity to another, including but not limited to, any transfer of title or possession for consideration, exchange, distribution or barter in any manner or by any means.

J. "Tobacco product" means:

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, and snuff.

2. 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.

3. 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. "Tobacco product" does 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 such product is marketed and sold solely for such an approved purpose.

K. "Tobacco retailer" or "retailer" means any store, stand, booth, concession or other enterprise that engages in the retail sale or exchange of tobacco products or electronic cigarettes.

(Ord. No. 02-2020, § 1, 5-19-2020)

Editor's note— Ord. No. 02-2020, § 1, adopted May 19, 2020 amended in its entirety § 5.80.010 entitled "Permit required," which derived from Ord. No. 317 § 1, adopted Oct. 7, 2008. See § 5.80.015 for similar provisions.

A. Permit Required. It is unlawful for any retailer, individual or entity to sell or offer for sale any tobacco products, without first obtaining and maintaining a valid tobacco retailer's permit from the city for each location where such sales are conducted. Permits are valid for one year and shall be renewed annually. The San Mateo County Department of Health or any successor is designated as the city's agent for acceptance of the application for and issuance of such permit, and for other actions authorized in this chapter, including without limitation actions to enforce, hold hearings, suspend permits and issue administrative fines.

B. Lawful Business Operation. It shall be a violation of this chapter for any retailer to violate any local, state or federal law applicable to tobacco products or the retailing of such tobacco products.

C. Notice of Minimum Age for Purchase of Tobacco Products. Retailers shall post conspicuously at each point of purchase a notice stating that selling tobacco products to anyone under twenty-one (21) years of age is illegal and subject to penalties. Such notice shall be subject to the approval of the environmental health division.

D. Prohibition on Sale of Flavored Tobacco Products.

1. The sale or offer for sale by any person or tobacco retailer of any flavored tobacco product is prohibited and no person or tobacco retailer shall sell or offer for sale any flavored tobacco product.

2. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer's agents or employees in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including but not limited to, text, color, and/or images on the product's labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.

E. Prohibition on Sale of Electronic Cigarettes. No tobacco retailer or other person shall sell any electronic cigarette to a person.

F. Prohibition on Sale of Tobacco Products at Pharmacy. No pharmacy or pharmacy employee or agent shall sell or offer for sale any tobacco product. No new tobacco retailer permit may be issued to a pharmacy under this chapter. No existing tobacco retailer permit issued under this Chapter 5.80 may be renewed by a pharmacy.

G. Prohibition on Sale of Tobacco Products to Individuals under Twenty-One. No retailer shall sell any tobacco product to any individual who is under twenty-one (21) years of age.

H. Vending Machines Prohibited. No tobacco product shall be sold to the public from a vending machine or applianceor any other coin, token, credit card or debit card operated mechanical device designed or used for vending purposes, including but not limited to, machines or devices that use remote control locking mechanisms.

I. Distribution of Free Samples and Coupons. No person, firm, association or corporation in the business of selling or otherwise distributing cigarettes or other tobacco, or smoking products for commercial purposes shall in the course of such business distribute, or direct, authorize or permit any agent or employee to distribute: (1) any cigarette, electronic cigarette or other tobacco or smoking product; or (2) coupons, certificates, or other written material which may be redeemed for tobacco products without charge to any person.

J. Out of Package Sales. No person shall sell or offer for sale cigarettes or tobacco products not in the original packaging provided by the manufacturer.

K. Self-Service Displays Prohibited. No person, firm, association or corporation shall sell, permit to be sold or offer for sale any tobacco product by means of self-service displays or by any means other than vendor assisted sales.

(Ord. No. 02-2020, § 1, 5-19-2020)

A. Application for a tobacco retailer's permit shall be submitted in the name of the entity or person proposing to conduct retail tobacco sales on the business premises and shall be signed by such person or an authorized agent thereof. All applications shall be submitted on a form supplied by the San Mateo County Department of Health, or any successor, (hereafter referred to as health services agency) and contain the following information:

1. The name, address and telephone number of the applicant;

2. The business name, address and telephone number of each location where tobacco is retailed; and

3. Such other information as the director of the health services agency or designee determines is necessary to implement the provisions of this chapter.

B. Applicants for renewal must follow the application procedures set forth in subsection A. A renewal for a tobacco retailer's permit will be denied if the application is for a person or location for which a suspension is in effect and/or if there are any outstanding fines issued by the county or city.

(Ord. No. 317, § 1, 10-7-2008)

Upon receipt of an application for a tobacco retailer's permit, the director or designee shall issue a permit which must be prominently displayed at the location where tobacco retail sales are conducted.

(Ord. No. 317, § 1, 10-7-2008)

The fee for a tobacco retailer's permit shall reflect the county's costs of processing the permit and regulating compliance with this chapter and shall be as set forth in the San Mateo County Ordinance Code.

(Ord. No. 317, § 1, 10-7-2008)

Tobacco retailer's permits are nontransferable as between entities, retailers, individuals, locations or otherwise.

(Ord. No. 317, § 1, 10-7-2008)

A. If an agent or employee of the tobacco retailer violates any provisions of this chapter or any federal or state tobacco related law, the tobacco retailer shall immediately report the violation to the county and the City of East Palo Alto.

B. Violation of the provisions of this chapter is deemed to constitute a public nuisance and may be abated as such. The provisions of this chapter may also be enforced through the mechanisms provided in Title 1 of this Code, and violations may be subject to administrative, civil, or criminal remedies as determined within the discretion of the city attorney as prosecutor. Further violation of this section shall constitute grounds for revocation of a violator's business license under Section 5.80.070.

(Ord. No. 317, § 1, 10-7-2008; Ord. No. 02-2020, § 1, 5-19-2020)

(A) A tobacco retailer's permit may be suspended, as set forth below, by the director of health services or designee upon a finding, after notice and opportunity to be heard, that either of the following occurred:

(1) After the permit was issued it was determined that the application for the permit is incomplete or inaccurate

(2) The permittee or his or her agent has violated any provision of this chapter or any federal or state tobacco-related law.

(B) Time Period of Suspension of Permit.

(1) For the first time that the health director or designee makes the findings that either subsections (A)(1) or (A)(2) of this section has occurred, the permit to sell tobacco products shall be suspended for up to thirty (30) days.

(2) Upon the second time that the health director or designee makes the findings set forth in subsections (A)(1) or (A)(2) of this section within twenty-four (24) months of the first determination, the permit to sell tobacco products shall be suspended for not less than thirty (30) and up to ninety (90) days.

(3) Upon the third and each subsequent time that the health director or designee makes the findings set forth in subsections (A)(1) or (A)(2) of this section within twenty-four (24) months of the first determination, the permit to sell tobacco shall be suspended for no less than ninety (90) days and up to one year.

(C) Effective Date of Suspension.

(1) If the director or designee makes oral findings and issues an order of suspension at the hearing, the suspension will be effective ten days from the date of the hearing, unless a timely appeal is filed in accordance with subsection (D).

(2) If the director or designee makes written findings and issues an order of suspension by certified mail after the hearing, the suspension will be effective fifteen (15) days from the date appearing on the notice of that finding and order of suspension, unless a timely appeal is filed in accordance with subsection (D).

(D) Appeal of Suspension.

(1) The decision of the director or designee is appealable to the San Mateo County Licensing Board.

(2) An appeal must be in writing, be addressed to the director and be hand-delivered to the San Mateo County Department of Health.

(3) An appeal must be received by the county before the effective date of suspension as set forth in subsections (C)(1) or (C)(2) in order to be considered.

(4) The filing of a timely appeal will stay a suspension pending a decision on the appeal by the San Mateo County Licensing Board.

(5) The decision of the San Mateo County Licensing Board shall be a final administrative order, with no further administrative right of appeal.

(Ord. No. 317, § 1, 10-7-2008)

A. Grounds for Fine. A fine may be imposed upon findings made by the director or designee that any retailer, individual or entity who is an owner of a retail establishment:

1. Does not have a valid tobacco retailer's permit; and

2. Offers for sale any tobacco, flavored tobacco, electronic cigarette, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco or products prepared from tobacco.

B. Amount of Fine. Upon findings made under subsection A, the retailer, individual or entity who is an owner of a retail establishment shall be subject to an administrative fine as follows:

1. A fine not exceeding one hundred dollars ($100.00) for a first violation;

2. A fine not exceeding two hundred dollars ($200.00) for a second violation;

3. A fine not exceeding five hundred dollars ($500.00) for the third and subsequent violations.

C. Separate Violations. Each day that tobacco products, flavored tobacco, electronic cigarette are offered for sale without a permit shall constitute a separate violation. A finding of "offering for sale" will be made if these tobacco products are actually sold and/or displayed in the retail establishment.

D. Fine Procedures. Notice of the fine shall be served on the retailer, individual, or entity who is the owner of the establishment by certified mail. The notice shall contain an advisement of the right to request a hearing before the director of health services or designee contesting the imposition of the fine. The hearing must be requested within ten (10) days of the date appearing on the notice of the fine by filing a letter with the director. The decision of the director shall be a final administrative order, with no administrative right of appeal.

E. Failure to Pay Fine. If the fine is not paid within thirty (30) days from the date of mailing the notice of the fine or of the notice of determination of the health director or designee after hearing, the fine may be referred for collection. In addition, any outstanding fines must be paid prior to the issuance of any permit by the county or the city.

F. Penalty for Furnishing to Minors. A civil penalty may be imposed upon any person, firm, or corporation that sells, gives or in any way furnishes to another person who is under twenty-one (21) years of age, any tobacco, cigarette, flavored cigarette, electronic cigarette, cigarette papers; any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, tobacco products, or any controlled substance, pursuant to and in the amounts set for the in California Business and Professions Code section 22958(a), as may be amended from time to time.

(Ord. No. 317, § 1, 10-7-2008; Ord. No. 02-2020, § 1, 5-19-2020)