Fairfax Municipal Code Art. II Tobacco Retailers Licensing Ordinance

This article shall be known as Fairfax's "Tobacco Retailers Licensing Ordinance."

(Ord. 814, passed 12-6-2017)

(A) Tobacco retailer's license required. It shall be unlawful for any person to act as a tobacco retailer in the town without first obtaining and maintaining a valid tobacco retailer's license pursuant to this article for each location at which that activity 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 section for a licensee, or any of the licensee's agents or employees, to violate any local, state, or federal law applicable to tobacco products or paraphernalia, electronic smoking devices or 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 or transfer a tobacco product, electronic smoking device or electronic smoking device paraphernalia to another person who appears to be under the age of 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, tobacco paraphernalia, electronic smoking device or electronic smoking device paraphernalia (i.e., 21 years old, or active duty military personnel who are 18 years of age or older with a US Armed Forces identification card).

(E) Minimum age for persons selling tobacco. No person who is younger than the age of 18 shall engage in tobacco retailing.

(F) Self-service displays prohibited. Tobacco retailing by means of a self-service display or self-service merchandizing, or by any means other than vendor-assisted sales, is prohibited. No tobacco retailer shall locate, install, keep, maintain or use, or permit the location, installation, keeping, maintenance or use on his, her or its premises any electronic smoking device vending machine or tobacco vending machine for the purpose of selling or distributing any electronic smoking device or any tobacco product.

(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 out of public view. The public display of tobacco products in violation of this provision shall constitute tobacco retailing without a license under § 8.44.300; 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) Flavored tobacco products.

(1) The sale or distribution by a tobacco retailer of any flavored tobacco product is prohibited.

(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.

(3) The Town Manager, or his or her designee, may adopt rules, regulations, or guidelines for the implementation and enforcement of this § 8.44.210(H).

(I) Minimum pack size for cigars. Notwithstanding any other provision of this section, it shall be a violation of this subsection 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 packaged for individual sale, unless the price conforms to the minimum pricing set forth in § 8.44.340(F).

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

This subsection (I) does not apply to the sale or offer for sale of a single cigar for which the retail price exceeds $5.

(J) Pharmacies cannot sell tobacco products. No license may be issued to authorize tobacco retailing in a pharmacy.

(K) Signage requirements.

(1) A tobacco retailer shall post plainly visible signs at the point of purchase of tobacco products which comply with the signage requirements of Cal. Bus. and Prof. Code § 22952, as amended from time to time.

(2) A tobacco retailer shall post signs at each entrance to any premises on which any tobacco product is offered for sale, plainly visible from outside the premises, which state "Warning: The fine for buying tobacco products or electronic cigarettes for anyone under 21 is $200-$1,000, with the exception of active duty military personnel aged 18 years or older with a US Armed Forces identification card" in letters at least one-half inch tall, and which cite Cal. Penal Code § 308(a). These signs shall be updated to conform to any subsequent state or federal requirements and/or amendments to Cal. Penal Code § 308(a).

(L) Sampling and distribution of sampling packages of tobacco products, tobacco paraphernalia, electronic smoking devices, and electronic smoking device paraphernalia is not permitted.

(Ord. 814, passed 12-6-2017; Am. Ord. 836, passed 9-4-2019; Am. Ord. 858, passed 11-3-2021; Am. Ord. 904, passed 2-4-2026)

(A) 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.

(1) 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 section, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to § 8.44.290. Nothing in this article 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.

(2) 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 section. If an authorized person and 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 article 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 any change.

(C) Tobacco retailers in existence on the effective date enforcement date specified in § 8.44.310 shall apply for a license within 90 days after said enforcement date.

(Ord. 814, passed 12-6-2017; Am. Ord. 858, passed 11-3-2021)

(A) Grounds for denial. Upon the receipt of a complete application for a tobacco retailer's license and the license fee required by this section, the department shall issue a license unless substantial evidence demonstrates that one or more of the following grounds 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 section.

(2) The application seeks authorization for tobacco retailing at a location which is not eligible for the issuance of a tobacco retailer license. 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 article prohibits a license to be issued.

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

(B) Appeal of denial. Except as provided in § 8.44.290(C), a decision of the department to deny a license is appealable to the Town Council and any such appeal must be filed in writing with the Town Clerk within 15 days of the department's denial of the issuance of the license and the applicable appeal fee must be paid.

(Ord. 814, passed 12-6-2017; Am. Ord. 858, passed 11-3-2021)

(A) Renewal of license. A tobacco retailer's license is invalid if the appropriate license fee has not been timely paid in full or if the term of the license has expired. The term of a tobacco retailer license is one calendar year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's license and submit the license fee no later than November 30 of each year.

(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. 814, passed 12-6-2017; Am. Ord. 858, passed 11-3-2021)

(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 article, 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. 814, passed 12-6-2017; Am. Ord. 858, passed 11-3-2021)

Nothing in this article 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 article 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 Cal. Labor Code § 6404.5. For example, obtaining a tobacco retailer's license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of Cal. Labor Code § 6404.5.

(Ord. 814, passed 12-6-2017; Am. Ord. 858, passed 11-3-2021)

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 article, 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 article. Fees are nonrefundable except as may be required by law.

(Ord. 814, passed 12-6-2017; Am. Ord. 858, passed 11-3-2021)

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

(B) The department will work with Marin County Tobacco Program to inspect each tobacco retailer at least one time per 12-month period. Nothing in this paragraph shall create a right of action in any licensee or other person against the Town or its agents.

(C) The department shall not enforce any law establishing a minimum age for tobacco purchases or possession against a minor 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 an inspection supervised by a peace officer, code enforcement official, or the person designated by the town to monitor compliance with this article;

(2) The youth decoy is acting as an agent of a person designated by the town to monitor compliance with this article; or

(3) The youth decoy is participating in an inspection funded in part, either directly or indirectly through subcontracting, by the County of Marin Department of Health and Human Services or the California Department of Health Services.

(Ord. 814, passed 12-6-2017; Am. Ord. 858, passed 11-3-2021)

(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 article or has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of any law designated in § 8.44.210 above.

(1) Upon a finding by the department of a first violation of this article at a location within any 60-month period, the license shall be suspended for 30 days.

(2) Upon a finding by the department of a second violation of this article at a location within any 60-month period, the license shall be suspended for 90 days.

(3) Upon a finding by the department of a third violation of this article at a location within any 60-month period, the license shall be suspended for one year.

(4) Upon a finding by the department of four or more violations of this article at a location within any 60-month period, the license shall be revoked and thereafter the licensee shall be ineligible to apply for a new license for five years.

(B) Appeal of suspension or revocation. A decision of the department to suspend or revoke a license is appealable to the Town Council and any appeal must be filed in writing with the Town Clerk within 15 days of mailing of the department's decision and the applicable appeal fee must be paid. 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 (C) 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 grounds for denial of a license under § 8.44.230 existed at the time application was made 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 to challenge. Any final administrative action to suspend or revoke a tobacco retailer's license under this article shall be subject to judicial review pursuant to Cal. Gov’t Code § 53069.4, which, among other things, requires such a judicial challenge to be brought within 20 days of service of the final decision.

(Ord. 814, passed 12-6-2017; Am. Ord. 858, passed 11-3-2021)

(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 or has engaged in any prohibited activity set forth in § 8.44.210, 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 article at a location within any 60-month period, no new license may issue for the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until 30 days have passed from the date of the violation.

(2) After a second violation of this article at a location within any 60-month period, no new license may issue for the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until 90 days have passed from the date of the violation.

(3) After a third or subsequent violation of this article at a location within any 60-month period, no new license may issue for the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until 60 months have passed from the date of the violation.

(Ord. 814, passed 12-6-2017; Am. Ord. 858, passed 11-3-2021)

(A) This article shall not be enforced by the town until January 1, 2019.

(B) Tobacco products, tobacco paraphernalia, electronic smoking devices or electronic smoking device paraphernalia offered for sale or exchange in violation of this article are subject to seizure by the department or any peace officer and shall be forfeited after the licensee and any other owner of such items seized is given reasonable notice and an opportunity to demonstrate that the items were not offered for sale or exchange in violation of this article. The decision by the department may be appealed pursuant to the procedures set forth in § 8.44.290(B). Forfeited items shall be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to Cal. Code of Civil Procedure § 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 article, each of the following constitutes a separate violation:

(1) Each day on which a tobacco product, tobacco paraphernalia, electronic smoking device or electronic smoking device paraphernalia is offered for sale in violation of this article; or

(2) Each individual retail tobacco product, retail item of tobacco paraphernalia, retail electronic smoking device or retail item of electronic smoking device paraphernalia that is distributed, sold, or offered for sale in violation of this article.

(Ord. 814, passed 12-6-2017; Am. Ord. 858, passed 11-3-2021)

(A) The remedies provided by this article are cumulative and in addition to any other remedies available at law or in equity.

(B) Whenever evidence of a violation of this article is obtained in any part through the participation of a person under the age of 21 years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this article and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

(C) Violations of this article are subject to a civil action brought by the Town Attorney, punishable by a civil fine not less than $250 and not exceeding $1,000 per violation.

(D) Violations of this article, in the discretion of the Town Attorney, may 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 article shall also constitute a violation of this article.

(F) Violations of this article are hereby declared to be public nuisances.

(G) In addition to other remedies provided by this article or by other law, any violation of this article 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. 814, passed 12-6-2017; Am. Ord. 858, passed 11-3-2021)

The Town Council finds and declares as follows:

(A) Commercial tobacco-related mortality accounts for approximately 40,000 deaths in California annually, with an estimated 230 deaths in Marin County annually, making commercial tobacco use a leading cause of preventable deaths.

(B) Evidence-based research demonstrates that a price increase in tobacco products will decrease commercial tobacco consumption and thus will:

(1) Assist behavior modifications by deterring consumers from commercial tobacco use, promoting a positive change in social norms.

(2) Protect vulnerable residents and priority populations of the Town of Fairfax from the health and economic burden of commercial tobacco.

(3) Protect the youth and young adults of the Town of Fairfax from becoming lifelong consumers of tobacco products by deterring early-age initiation of commercial tobacco use.

(C) Price reduction strategies, such as discounts and coupons, are used by the tobacco industry to counter state and local commercial tobacco control efforts and appeal to price sensitive consumers.

(D) Between 2017 to 2022, neighboring Bay Area cities and counties have enacted minimum floor price laws that set minimum prices on 20-pack cigarettes ranging from $7 to $10 and minimum prices on packages of cigars and little cigars ranging from $7 to $10.

(E) Based on a survey conducted by County of Marin Public Health, as of February 2024, approximately 80% of tobacco retailers in the unincorporated areas of Marin County sell 20-pack cigarettes for as little as between $9 and $10, making a minimum price of $12 per 20-pack cigarette necessary to achieve the goal of reducing overall commercial tobacco use in Marin County and the town of Fairfax.

(F) Because cigars and little cigars can be sold individually at low prices, requiring minimum package sizes for cigars, and little cigars; and setting a minimum price of $12.00 per package is necessary to achieve the goal of reducing overall commercial tobacco use in Marin County and the Town of Fairfax.

(G) Price increases in tobacco products have yielded the most success in reducing smoking prevalence in the short-run and preventing initiation in the long-run. Comprehensive smoking policies and programs coupled with cessation support and prevention implementation, including health care provider interventions and community health education and health warnings result in equity-focused and sustainable outcomes, with 12% smoking reduction in the short-run and 18% prevented smoking initiation in the long-run.

(H) Historically, Minimum Floor Price Laws (MFPLs) have shown consistent outcomes in narrowing the gap in socioeconomic disparities by increasing cessation, reducing cigarette smoking prevalence and preventing initiation, showing the greatest positive impact among people of color ages 12-24 years old, those living below the federal poverty level, and several priority subpopulations.

(I) Youth nicotine use poses serious health risks, particularly through vaping, which can harm brain development, lung function, and increase respiratory issues like asthma. In California, vapes are the most commonly used nicotine product among teens aged 12-17, with 9.7% reporting current use-higher than cigars/cigarillos (3.4%) and cigarettes (2.8%). In Marin County, this issue is especially concerning, as 11th-grade vaping rates have consistently surpassed state averages over the past five years.

(J) Heated tobacco products, often marketed as "heat-not-burn," also pose significant health risks. Research shows they contain many of the same harmful chemicals as traditional cigarettes, as well as additional toxic substances not found in regular tobacco smoke. The use of any tobacco product— including these newer forms— harmful, particularly for youth, young adults, pregnant individuals, and non-users.

(Ord. 904, passed 3-4-2026)

(A) Packaging and labeling. No tobacco retailer shall sell any tobacco product unless the tobacco product:

(1) Is sold in the manufacturer's packaging intended for sale to consumers;

(2) Conforms to all applicable federal labeling requirements; and

(3) Conforms to all applicable child-resistant packaging requirements.

(B) Display of price. The price of each tobacco product offered for sale shall be clearly and conspicuously displayed on the tobacco product or on any related shelving, posting, advertising, or display at the location where the item is sold or offered for sale.

(C) Distribution of tobacco product samples or promotional items. It is unlawful for any person to distribute free or nominally priced tobacco products.

(D) Prohibition of coupons and discounts. No tobacco retailer shall:

(1) Sell any tobacco product for less than the displayed price, not including taxes or fees;

(2) Honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than the full retail price;

(3) Sell any tobacco product to a consumer through a multiple-package discount or otherwise provide any such product to a consumer for less than the full retail price in consideration for the purchase of any tobacco product or any other item; or

(4) Provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.

(E) Minimum package size for tobacco products. No tobacco retailer shall sell:

(1) Any conventional cigarette unless sold in a package size of at least 20 conventional cigarettes;

(2) Any little cigar unless it is sold in a package of at least five little cigars;

(3) Any cigar unless it is sold in the manufacturer's original consumer package size of at least two cigars; provided, however, this division shall not apply to an individual cigar that has a price of at least $12 per cigar;

(F) Minimum prices for tobacco products. No tobacco retailer shall sell:

(1) Conventional cigarettes at a displayed price that is less than $12 per package of 20 conventional cigarettes, plus $2 for each additional conventional cigarette;

(2) Little cigars at a displayed price that is less than $12 per package of five little cigars, plus $3 for each additional little cigar;

(3) Cigars at a displayed price that is less than $6 per cigar enclosed in a package of two; single cigars at less than $12 per cigar.

(4) Smokeless tobacco at a displayed price of less than $12 per package.

(G) Every two years after the effective date of this section, the minimum prices for tobacco products in this section shall increase by $1, unless ordained or resolved otherwise by the Fairfax Town Council.

(Ord. 904, passed 3-4-2026)

It is unlawful for any tobacco retailer to sell any electronic smoking device, heated smoking system or tobacco or nicotine pouch(es).

(Ord. 904, passed 3-4-2026)

Nothing in this Chapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by state or federal law.

(Ord. 904, passed 3-4-2026)