Guadalupe Municipal Code Ch. 5.53 Licensure of Tobacco Retailers

A. It is the intent of the City Council, in enacting this chapter, to discourage violations of laws which prohibit or discourage sale or distribution of tobacco products and tobacco paraphernalia to minors and young people, but not to expand or reduce the degree to which the acts regulated by State or Federal law are criminally proscribed.

B. All amendments to this chapter shall be applied in a prospective manner only, not retrospectively to situations, conditions or facts existing at the time of or prior to the amendment.

(Ord. 2020-489 §1)

The following words and phrases, 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 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 a violation of this chapter, is not an arm's length transaction.

"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 3 pounds per 1,000.

"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.

"Delivery sale"

means any sale of tobacco products to a consumer if products and/or tobacco:

The consumer submits the order for the sale by means of a telephone or other method of voice transmission, the mails, or the internet or other online service, or the seller is otherwise not in the physical presence of the buyer when the request for purchase or order is made; or

The tobacco products are delivered to the buyer by common carrier, private delivery service, or other method of remote delivery, or the seller is not in the physical presence of the buyer when the buyer obtains possession of the tobacco products.

"Department"

means the City of Guadalupe Department of Public Safety or the duly authorized designee of the Department of Public Safety.

"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, epipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of the device, 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 drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

"Flavored tobacco product"

means any tobacco product that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to, or during the consumption of, a tobacco product, including, but not limited to, any taste or smell relating to fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, molasses, or any candy, dessert, alcoholic beverage, herb, or spice. A public statement or claim, whether express or implied, made or disseminated by the manufacturer of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements or claims concerning such products, that a product has or produces a taste or smell other than a taste or smell of tobacco will constitute presumptive evidence that the product is a flavored product.

"Full retail price"

means the price listed for a tobacco product on its packaging or on any related shelving, advertising, or display where the tobacco product is sold or offered for sale, plus all applicable taxes and fees if such taxes and fees are not included in the listed price.

"Licensing agent"

means the City of Guadalupe Department of Finance or the duly authorized designee of the Department of Finance.

"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 3 pounds per 1,000. Little cigar includes, but is not limited to, tobacco products known or labeled as small cigars, little cigars, or cigarillos.

"Person"

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

"Pharmacy"

means a place of business at which prescription drugs are prepared, compounded, or dispensed by or under the supervision of a pharmacist and from which related clinical pharmacy services are delivered.

"School"

means any public or private kindergarten, elementary, middle, junior high, or high school.

"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 face-to-face transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.

"Tobacco paraphernalia"

means holders of smoking materials of all types, cigarette rolling machines, and any other item designed for smoking, preparation, storing or consumption of tobacco products.

"Tobacco product"

means:

Any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;

Any electronic smoking device, and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or

Any component, part, or accessory of subsection (1) or (2), whether or not any of these contains tobacco or nicotine, including, but not limited to, filters, rolling papers, blunt or hemp wraps, hookahs, and pipes.

Tobacco product does not mean drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act, nor does it mean cannabis products as defined by the Health and Safety Code Section 11018.1 or cannabis as defined by Business and Professions Code Section 26001, as these laws may be amended from time to time.

"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 retailer license" or "license"

means a business license that permits the retail sale of tobacco paraphernalia.

"Tobacco retailing"

shall mean engaging in the activities of a tobacco retailer.

(Ord. 2020-489 §1)

It is unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer license pursuant to this chapter for each location at which tobacco retailing is to occur. Tobacco retailer licenses are valid for one year. An application to renew a tobacco retailer license should be submitted prior to the expiration of the license.

(Ord. 2020-489 §1)

A. An application for a tobacco retailer license, plus one copy, shall be submitted to the licensing agent in the name of the person(s) proposing to conduct tobacco retailing and shall be signed by such person(s) or an authorized agent thereof. All applications shall be submitted on a form supplied by the licensing agent and shall contain the following information:

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

2. The business name, address, and telephone number of each location for which a license is sought;

3. Such other information as the licensing agent deems necessary for enforcement of this chapter.

B. Once an application has been submitted to the licensing agent, it will be promptly forwarded to the Department for review. The Department shall, within 21 business days of receipt of the application, recommend whether or not the licensing agent should issue the tobacco retailer license.

(Ord. 2020-489 §1)

A. Within 30 business days of the licensing agent's receipt of an application for a tobacco retailer license, the licensing agent shall issue a license, unless it has been determined by the licensing agent or Department that the issuance of the license should be denied, based on the following criteria:

1. The application is incomplete or inaccurate;

2. The application seeks authorization for tobacco retailing by a person or at a location for which a suspension or revocation with prejudice is in effect pursuant to Section 5.53.160 of this chapter;

3. The application seeks authorization for tobacco retailing in an area that is in violation of Section 5.53.110, or in a manner that is in violation of Section 5.53.090, City zoning pursuant to Title 18 of this Code, or in violation of any other provision of City, State, or Federal law; or

4. The application seeks authorization for tobacco retailing in a pharmacy. No pharmacy or any retail establishment that operates an on-site pharmacy will be granted a license.

B. A denial of a tobacco retailer license may be appealed pursuant to Section 5.53.160.

C. The licensing agent shall keep a permanent record of all tobacco retailer licenses issued, but may destroy such records as provided by law with the approval of the City Council.

(Ord. 2020-489 §1)

Each licensee shall prominently display the tobacco retailer license at each location where tobacco retailing occurs.

(Ord. 2020-489 §1)

A. The initial fee or renewal fee for a tobacco retailer license shall be set forth in the "Tobacco Retailer License Fee Schedule" that is adopted by resolution. The fee shall be paid to the licensing agent when a tobacco retailer license application is submitted.

B. Renewal. Renewal fees are due the 30 days prior to the date of expiration of a tobacco retailer license. If the renewal fee is not paid on time, a penalty of 50% of the renewal fee shall be added to the renewal fee. If the renewal fee and any applicable late penalty are not paid before the date of expiration of a tobacco retailer license, then the licensing agent shall automatically revoke the license. Thereafter, if the licensee desires to resume tobacco retailing, a new license application must be submitted to the licensing agent in accordance with Section 5.53.040, along with the license fee and late penalty.

(Ord. 2020-489 §1)

A. A tobacco retailer license is nontransferable. If a person to whom a tobacco retailer license has been issued changes the business location or sells the business, then that person must obtain a new license prior to acting as a tobacco retailer at the new location, or the buyer of the business must obtain a license in the new owner's name before acting as a tobacco retailer.

B. Prior violations at a location shall continue to be counted against a location and license revocation periods shall continue to apply to a location unless:

1. The location is being or has been fully transferred to a new owner; and

2. The new owner(s) provide the licensing agent with clear and convincing evidence that the new owner(s) is acquiring or has acquired the location in an arm's length transaction.

(Ord. 2020-489 §1)

No tobacco retailer license may be issued to authorize tobacco retailing at other than a fixed location. All sales of tobacco products and tobacco paraphernalia to consumers shall be conducted face-to-face and over the counter at the licensed location. For example, tobacco retailing by persons on foot, from vehicles, or at mobile kiosks is prohibited, and delivery sales of tobacco products to consumers is prohibited.

(Ord. 2020-489 §1)

A. No person engaged in tobacco retailing may:

1. 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;

2. 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 service;

3. Provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product; or

4. Provide any free or nominally-priced sample of any tobacco product to any person; or

5. Sell:

a. A flavored tobacco product,

b. Any little cigar unless it is sold in a package of at least 20 little cigars,

c. Any cigar unless it is sold in a package of at least at least 6 cigars; provided, however, that this subsection shall not apply to a cigar that has a price of at least $10.00 per cigar, including all applicable taxes and fees,

d. Cigarettes at a price that is less than $10.00 per package of 20 cigarettes, including all applicable taxes and fees,

e. Little cigars at a price that is less than $10.00 per package of little cigars, including all applicable taxes and fees,

f. Cigars in a package at a price that is less than $5.00 per cigar, including all applicable taxes and fees, or

g. Any tobacco product by means of a self-service display.

B. The minimum prices established in this section shall be adjusted annually by the annual average of the percentage change in the Consumer Price Index for all urban consumers for all items for the Los Angeles statistical area as reported by the United States Bureau of Labor Statistics or any successor to that index.

(Ord. 2020-489 §1)

A. No tobacco retailer license may be issued to authorize tobacco retailing within 1,000 feet of a school, except as provided in subsection B.

B. Exception. A tobacco retailer operating with a valid tobacco retailer license at a location within 1,000 feet of a school, on the operative date of this chapter may continue to operate under their existing tobacco retailer license and under any tobacco retailer license that is timely renewed for that location.

C. All distances shall be measured in a straight line from the nearest point on the parcel boundary of an existing or proposed tobacco retailer to the nearest point on the parcel boundary of the nearest school.

(Ord. 2020-489 §1)

No person engaged in tobacco retailing shall sell or transfer a tobacco product or tobacco paraphernalia to another person who appears to be under the age of 30, 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 tobacco products or tobacco paraphernalia.

(Ord. 2020-489 §1)

No person who is younger than the minimum age established by State or Federal law for the purchase of tobacco products or tobacco paraphernalia may engage in tobacco retailing.

(Ord. 2020-489 §1)

A tobacco retailer without a valid tobacco retailer license, including for example, a tobacco retailer license that has been suspended or revoked, shall not display any advertisement promoting the sale or distribution of tobacco products or tobacco paraphernalia at the tobacco retailer's location and shall keep all such products out of public view.

(Ord. 2020-489 §1)

A. Compliance with this chapter shall be primarily enforced by the Department, in conjunction with Code enforcement. However, any peace officer may enforce the penal provisions of this chapter against a tobacco retailer.

B. The Department will check the compliance of each tobacco retailer 2 to 4 times per 12-month period. However, the Department may check the compliance of a tobacco retailer more or less often, depending on a tobacco retailer's compliance history. Nothing in this subsection shall create a right of action for any tobacco retailer or other person, against the county or its agents.

(Ord. 2020-489 §1)

A. Grounds for Revocation or Suspension.

1. A tobacco retailer license shall be revoked if the Department finds that one or more of the basis for denial of a license under Section 5.53.050 of this chapter exists. The revocation shall be without prejudice to the filing of a new application for a license following correction of the conditions that required revocation of the license, unless the Department finds that missing information was intentionally withheld, or inaccurate information was intentionally provided.

2. A tobacco retailer license shall be suspended, if the Department finds that the licensee or his or her agent or employee has violated this chapter or any Federal, State, or local law governing the sale, distribution, advertisement, labeling, packaging, manufacturing, or display of tobacco, tobacco products or tobacco paraphernalia, including, but not limited to: Penal Code Section 308a, or Business and Professions Code Section 22950 et seq. (Stop Tobacco Access to Kids Enforcement Act "STAKE Act") or Sections 37-7 and 37-8 of Santa Barbara County's Code, or Business and Professions Code Section 25612.5(c)(7).

3. The licensing agent shall give notice of revocation or suspension to a licensee by personal service or by certified mail return receipt requested, addressed to where the license was issued. The notice of revocation or suspension shall be effective when notice is personally served, or when the certified mail return receipt is returned to the licensing agent. If the licensee fails to file a timely appeal of the suspension or revocation pursuant to this section, the notice of suspension or revocation shall be final, subject only to judicial review.

B. Suspension of Tobacco Retailer License. If the Department finds that there are grounds for suspension of a tobacco retailer license, the following sanctions shall be imposed:

1. Upon a first finding by the Department of a violation of this chapter by a licensee or by any agent or employee of a licensee within any 5-year period, the license shall be suspended for 30 days.

2. Upon the second finding by the Department of a violation of this chapter by a licensee or by any agent or employee of a licensee within any 5-year period, the license shall be suspended for 90 days.

3. Upon the third or subsequent finding by the Department of a violation of this chapter by a licensee or by any agent or employee of a licensee within any 5-year period, the license shall be suspended for 12 months.

C. Appeal of Denial, Revocation and/or Suspension. The decision of the licensing agent to deny the issuance of a tobacco retailer license or the decision of the Department to revoke or suspend a license can be appealed to the Department or its designee. All appeals must be in writing and filed with Department, within 10 days of receipt of notice of denial, or within 10 days of the effective date of the notice of revocation or suspension of a tobacco retailer license. The Department shall set an appeal hearing at the earliest practicable time and shall give written notice of the hearing to the parties at least 10 days before the date of the hearing. At the hearing any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Within a reasonable time after the conclusion of the hearing, the Department shall make a written decision. An appeal shall stay all proceedings until the appeal is resolved. Any decision rendered by the Department shall be a final administrative decision.

(Ord. 2020-489 §1)

A. Any violation of the provisions of this chapter by any person is a misdemeanor and is punishable as provided in Title 1, Chapter 1.08 of this Code.

B. Violations of this chapter are hereby declared to be public nuisances.

C. 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, but not limited to, administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

(Ord. 2020-489 §1)

If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this chapter is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this chapter or the rules adopted hereby. The City Council of the City of Guadalupe hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

(Ord. 2020-489 §1)