El Monte Municipal Code Ch. 8.10 Retail Sales of Tobacco Products

Footnotes:

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Editor's note— Ord. No. 2781, § 1, adopted Nov. 15, 2011, amended Ch. 8.10 in its entirety, in effect repealing and reenacting said chapter to read as herein set out. The former Ch. 8.10, §§ 8.10.010 and 8.10.020, pertained to vendor assisted sales of tobacco and derived from Ord. No. 2547, § 1 (part), 2002.

The following words and phrase, 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 (2) 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.

"Characterizing flavor" means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to tor 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. Characterizing flavor includes flavor in any form, mixed with, or otherwise added to, any tobacco product or nicotine delivery device, including electronic smoking devices.

"Cigar" means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than three (3) pounds per thousand.

"Cigarette" means: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and (2) any roll of tobacco wrapped in any substance containing tobacco, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by consumers as a cigarette described herein.

"Consumer" means a person who purchases a tobacco product for consumption and not for sale to another.

"Department" means the Finance Department of the City of El Monte, and any division or person designated by the department to enforce or administer the provisions of this chapter.

"Electronic smoking device" means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of the devise, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. Electronic smoking device 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.

"Flavored tobacco product" means any tobacco product, as defined in this Chapter 8.10, which imparts a characterizing flavor. 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 has: (i) made a public statement or claim that the tobacco product imparts a characterizing flavor; (ii) used text and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or (iii) taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.

"Little cigar" means any roll of tobacco—other than a cigarette—wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than three (3) pounds per thousand. "Little cigar" includes, but is not limited to, any tobacco product known or labeled as a "small cigar," "cigarillo," or "little cigar."

"Package" or "packaging" means a pack, box, carton or container of any kind, or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold or offered for sale to a consumer.

"Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

"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-today operations of a business.

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

"Sale" or "sell" means any transfer, exchange, barter, gift, offer for sale, or distribution for commercial purpose, in any manor or by any means whatsoever.

"Smoke" means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition or vaporization. The term "smoke" includes, but is not limited to, tobacco smoke, electronic cigarette vapors, marijuana smoke or any other weed, herb, flower or plant.

"Smoking" means the generation of smoke, as defined herein, through the use and/or operation of any tobacco product.

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

"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 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; or

3. Any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately or any of these contains tobacco or nicotine. "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.

"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. 2781, § 1, 11-15-2011; Ord. No. 2935, §§ 2, 3, 9-4-2018; Ord. No. 2980, §§ 2—4, 6-23-2020)

A. Tobacco Retailer Permit 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 permit pursuant to this chapter for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer's permit 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 permit issued, it shall be a violation of this chapter for a permittee or any of the permittee's agents or employees, to violate any local, state, or federal law applicable to tobacco products.

C. Display of Permit. Each tobacco retailer permit shall be prominently displayed in a publicly visible location at the permitted location.

D. Positive Identification Required. No person engaged in tobacco retailing shall sell or transfer a tobacco product 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.

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 permit, including, for example, a person whose permit has been revoked:

1. Shall keep all tobacco products out of public view. The public display of tobacco products in violation of this provision shall constitute tobacco retailing without a permit under Section 8.10.120; and

2. Shall not display any advertisement relating to tobacco products 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. Packaging and Labeling. No tobacco retailer shall sell any tobacco product to any consumer unless such product: (1) is sold in the original manufacturer's packaging intended for sale to consumers; and (2) conforms to all applicable federal labeling requirements.

I. Minimum Package Size for Little Cigars and Cigars. No tobacco retailer shall sell to a consumer:

1. Any little cigar unless it is sold in a package of at least twenty (20) little cigars.

2. Any cigar unless it is sold in a package of at least six (6) cigars, provided, however, that this Subsection I.2. of 8.10.020 shall not apply to a cigar that has a price of at least five dollars ($5.00) per cigar, including all applicable taxes and fees.

J. No tobacco retailer shall sell or offer for sale, or possess with the intent to sell or offer for sale, any flavored tobacco product or any component, part, or accessory intended to impart or imparting a characterizing flavor in any form, to any tobacco product or nicotine delivery device, including electronic smoking devices. There shall be a rebuttable presumption that a tobacco retailer in possession of four (4) 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. 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 has:

1. Made a public statement or claim that the tobacco product imparts a characterizing flavor;

2. Used text and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or

3. Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.

(Ord. No. 2781, § 1, 11-15-2011; Ord. No. 2935, § 3, 9-4-2018; Ord. No. 2980, § 5, 6-23-2020)

Editor's note— The provisions of subsection J of Section 8.10.020 shall become operative as of January 1, 2021.

No permit 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.

(Ord. No. 2781, § 1, 11-15-2011)

A. Application for a tobacco retailer's permit 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.

B. 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 permit. No proprietor may rely on the issuance of a permit as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing. A permit 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 8.10.110(D) of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer's permit any status or right to act as a tobacco retailer in contravention of any provision of law.

C. 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 permit.

2. The business name, address, and telephone number of the single fixed location for which a permit 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 subsection (C)2 above.

4. Proof that the location for which a tobacco retailer's permit is sought has been issued a valid state tobacco retailer's permit 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 (5) 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.

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

E. Permit applications must be submitted prior to January 1 of the calendar year for which the permit will be in effect.

(Ord. No. 2781, § 1, 11-15-2011)

A. Upon the receipt of a complete application for a tobacco retailer's permit and the permit fee required by this chapter, the department shall issue a permit 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 issuance of tobacco retailer permits. However, this subparagraph shall not constitute a basis for denial of a permit 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.

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

4. The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter, that is unlawful to this Municipal Code, or that is unlawful pursuant to any other law.

(Ord. No. 2781, § 1, 11-15-2011)

A. Renewal of Permit. A tobacco retailer's permit is invalid if the appropriate fee has not been timely paid in full or if the term of the permit has expired. The term of a tobacco retailer permit is one year commencing on January 1 and ending on December 31 of the same calendar year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's permit and submit the permit fee no later than thirty (30) days prior to the expiration of the term.

B. Expiration of Permit. A tobacco retailer's permit that is not timely renewed shall expire at the end of its term. To renew a permit not timely renewed pursuant to subsection (A), the proprietor must:

1. Submit the permit fee and application renewal form; and

2. Submit a signed affidavit affirming that the proprietor:

a. Has not sold and will not sell any tobacco products after the permit expiration date and before the permit is renewed; or

b. Has waited the appropriate ineligibility period established for tobacco retailing without a permit, as set forth in Section 8.10.120(A) of this chapter, before seeking renewal of the permit.

(Ord. No. 2781, § 1, 11-15-2011)

A. A tobacco retailer's permit may not be transferred from one person to another or from one location to another. A new tobacco retailer's permit is required whenever a tobacco retailing location has a change in proprietor(s).

B. Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and permit 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. 2781, § 1, 11-15-2011)

Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer's permit 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 permit. 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 Municipal Code, 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 permit does not make the retailer a "retail or whole tobacco shop" for the purposes of California Labor Code Section 6404.5.

(Ord. No. 2781, § 1, 11-15-2011)

By resolution, the city council shall establish and may from time to time adjust a schedule of fees for the issuance of a tobacco retailer's permit under this chapter. Fees shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a permit, administering the permit program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecutions 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. 2781, § 1, 11-15-2011)

A. Compliance with this chapter shall be monitored by the department. In addition, any sworn peace officer or City of El Monte Code Enforcement 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 shall check the compliance of each tobacco retailer at least once per twelve-month period. Nothing in this paragraph shall create a right of action in any permittee 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 the tobacco retailer is conducting business in a manner that complies 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.

(Ord. No. 2781, § 1, 11-15-2011)

A. Suspension of Permit for Violation. In addition to any other penalty authorized by law, a tobacco retailer permit 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 permittee is afforded notice and an opportunity to be heard, that the permittee, or any of the permittee's agents or employees, has violated any of the requirements, conditions, or prohibitions of this part or has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of any law designated in Section 8.10.020 of this chapter. A tobacco retailer or proprietor whose permit has been suspended is deemed not to have a valid tobacco retailer permit during the suspension period for purposes of this chapter.

B. Tobacco Retailer Permit Suspension/Revocation.

1. After suspension for a first violation of this part at a location within any three-year period, no person may engage in the retail sales of tobacco products at the location until fifteen (15) days have passed from the date of suspension.

2. After suspension for a second violation of this part at a location within any three-year period, no person may engage in tobacco retailing at the location until thirty (30) days have passed from the date of suspension.

3. After suspension for a third violation of this part at a location within any three-year period, no person may engage in tobacco retailing at the location until ninety (90) days have passed from the date of suspension.

4. After revocation for four or more violations of this part at a location within any three-year period, no new permit may issue for the location until one year has passed from the date of revocation.

C. Appeal of Suspension/Revocation. A decision of the department to suspend or revoke a permit is appealable to the City Manager and/or designee and must be filed with the City Clerk or within ten (10) days of mailing of the department's decision. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the City Manager or designee is not available for a suspension or revocation made pursuant to subsection (D) of this section.

D. Revocation of Permit Wrongly Issued. A tobacco retailer permit shall be revoked if the department finds, after the permittee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a permit under Section 8.10.050 existed at the time application was made or at any time before the permit issued. The decision by the department shall be the final decision of the city. Such a revocation shall be without prejudice to the filing of a new permit application.

(Ord. No. 2781, § 1, 11-15-2011; Ord. No. 2789, 3-20-2012)

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 permit, 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 permit as follows:

1. After a first violation of this section at a location within any five-year period, no new permit 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 five-year period, no new permit 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.

B. Tobacco products 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 permittee and any other owner of the tobacco products seized is given reasonable notice and an opportunity to demonstrate that the tobacco products 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 8.10.110(C).

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

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

2. Each individual retail tobacco product that is distributed, sold, or offered for sale in violation of this chapter;

shall constitute a separate violation of this chapter.

(Ord. No. 2781, § 1, 11-15-2011; Ord. No. 2789, 3-20-2012)

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 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 action brought by the city prosecutor or the city attorney and are subject to an administrative fine as established by resolution of the City Council.

D. Violations of this chapter may, in the discretion of the City Prosecutor or City 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 City Attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(Ord. No. 2781, § 1, 11-15-2011; Ord. No. 2935, § 4, 9-4-2018)