El Cerrito Municipal Code Art. 2 Requirements and Prohibitions

It shall be unlawful for any person to engage in the retail sales of tobacco in the City of El Cerrito without first obtaining and maintaining a valid tobacco retailer license pursuant to this chapter for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer license is a nuisance as a matter of law.

(Ord. No. 2015-08, § 3, 10-6-2015)

It shall be a violation of this chapter for any person, or any of the person's agents or employees, to violate any local, state, and/or federal laws regarding sales, advertising or display of tobacco products, electronic smoking devices, imitation tobacco products and/or smoking paraphernalia.

(Ord. No. 2015-08, § 3, 10-6-2015)

A current tobacco retailer license shall be prominently displayed in a publicly visible location at each licensed location.

(Ord. No. 2015-08, § 3, 10-6-2015)

No person engaged in tobacco retailing shall sell or transfer any tobacco product or smoking 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 under state law to purchase and possess the tobacco product, electronic smoking device or smoking paraphernalia.

(Ord. No. 2015-08, § 3, 10-6-2015)

No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in the sales transaction of tobacco products.

(Ord. No. 2015-08, § 3, 10-6-2015)

Tobacco retailing, including sales of any tobacco product, electronic smoking device, or smoking paraphernalia, by means of a self-service display is prohibited.

(Ord. No. 2015-08, § 3, 10-6-2015)

No tobacco retailer, nor any of the retailer's agents or employees, shall sell or offer for sale, or possess with intent to sell or offer for sale, any imitation tobacco products or flavored tobacco product.

1. There shall be a presumption that a tobacco retailer in possession of four or more flavored tobacco products, which shall include 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.

(Ord. No. 2015-08, § 3, 10-6-2015)

No tobacco retailer, nor any of the retailer's agents or employees, shall sell or offer for sale, or possess with intent to sell or offer for sale:

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;

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

4. Subsection 1. does not apply to the sale or offer for sale of a single cigar for which the retail price exceeds five dollars. This minimum retail amount may be adjusted from time to time by a resolution of the city council.

(Ord. No. 2015-08, § 3, 10-6-2015)

Every tobacco retailer shall maintain on the premises the original labeling and packaging provided by the manufacturer for all tobacco products that are sold or offered for sale by the retailer separately from the original packaging designed for retail sale to the consumer. The original labeling and packaging from which the contents are sold separately shall be maintained during such time as the contents of the package are offered for sale, and may be disposed of upon the sale of the entire contents of such package.

(Ord. No. 2015-08, § 3, 10-6-2015)

A cigar lounge, hookah bar, vape bar or similar establishment is prohibited in the City of El Cerrito. No retailer shall operate a smoking lounge, or any facility, building, structure or location, where customers consume any amount of tobacco product, or where customers use an electronic smoking device or other apparatus to deliver an inhaled dose of nicotine or other substance.

(Ord. No. 2015-08, § 3, 10-6-2015)

No license for a tobacco retailer may be issued to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.

(Ord. No. 2015-08, § 3, 10-6-2015)

Except as allowed in adult-only businesses per state and federal law, no person shall knowingly distribute, furnish without charge, or cause to be furnished without charge for a commercial purpose, cigarettes or other tobacco products including and smoking paraphernalia, or coupons for discounts on the purchase of cigarettes or other tobacco products including and smoking paraphernalia, at any event open to the public or in any public place, including but not limited to any public way, mall or shopping center, park, playground, or any property owned by the city or any other public agency.

(Ord. No. 2015-08, § 3, 10-6-2015)

A person selling tobacco products without a valid tobacco retailer license or a licensee whose privilege to sell tobacco has been suspended or revoked:

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

2. Shall not display any advertisement relating to tobacco products or smoking 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.

(Ord. No. 2015-08, § 3, 10-6-2015)

It shall be a violation of this chapter for any retailer or any of the retailer's agents or employees to violate any local, state, or federal law regulating controlled substances or drug paraphernalia, such as, for example, California Health and Safety Code section 11364.7, except that conduct authorized pursuant to the state Medical Marijuana Program (California Health and Safety Code sections 11362.7 et seq.) shall not be a violation of this chapter.

(Ord. No. 2015-08, § 3, 10-6-2015)

No tobacco retailer shall operate as a "significant tobacco retail establishment."

1. No license for a tobacco retail establishment may be issued if the retailer intends to operate a significant tobacco retail establishment.

2. No tobacco retailer may utilize more than twenty percent of the store display area for tobacco products, smoking paraphernalia or both.

3. No tobacco retailer may derive fifty percent or more of gross receipts from tobacco products, smoking paraphernalia, or both.

Existing tobacco retailers operating at the time this chapter goes into effect may seek an exception to this section for up to ten years by demonstrating that use of a larger display area or percentage of gross receipts preceded the effective date of this chapter. The tobacco retailer shall make this showing to the satisfaction of the city. Such tobacco retailers will be allowed to continue to devote the same amount of display area and/or receive up to the same percent of gross receipts from tobacco products as demonstrated so long as:

1. A tobacco retailer license and exception to this section are obtained in a timely manner;

2. The tobacco retailer is not closed for business or otherwise suspends tobacco retailing for more than sixty consecutive days;

3. The tobacco retailer does not substantially change the business premises or business operation, as determined by the city;

4. The tobacco retailer does not increase the percent of display area and/or gross receipts beyond that store's previously declared percentages, or the aforementioned limits, whichever is greater;

5. The tobacco retailer does not receive three or more citations for any reason within a five year period;

6. The tobacco retailer retains the right to operate under other applicable laws; and

7. The tobacco retailer is required to post signs restricting the age of customers to the state mandated minimum age for purchasing tobacco.

This exception will sunset ten years from adoption of this ordinance.

(Ord. No. 2015-08, § 3, 10-6-2015)

Existing tobacco retailers have 24 months from adoption of this chapter to comply with Sections 6.100.120 through 6.100.200 inclusive so long as:

1. The tobacco retailer license is obtained and renewed annually in a timely manner. The license will be considered delinquent if payment is past due by more than 30 days;

2. The tobacco retailer is not closed for business or otherwise suspends tobacco retailing for more than sixty consecutive days, unless required to close or suspend tobacco retailing to comply with other laws, in which case the sixty day period shall be tolled until the tobacco retailer is legally allowed to re-open or resume tobacco sales;

3. The tobacco retailer does not substantially change the business premises or business operation;

4. The tobacco retailer does not receive three or more violations within a twenty-four month period; and

5. The tobacco retailer retains the right to operate under other applicable laws.

(Ord. No. 2015-08, § 3, 10-6-2015)