Hermosa Beach Municipal Code Ch. 5.78 Tobacco Retailers

Contents:

5.78.010 Title.

5.78.020 Purpose.

5.78.030 Definitions.

5.78.040 Tobacco retailer license required.

5.78.050 Limits on eligibility and location.

5.78.060 Term and renewal.

5.78.070 License nontransferable.

5.78.080 Operating requirements.

5.78.090 Compliance monitoring and enforcement.

5.78.100 Violations.

5.78.110 Tobacco retailing without a valid license.

5.78.120 Implementing rules and regulations.

This chapter shall be known as the "Tobacco Retailer Ordinance" of the city of Hermosa Beach. (Ord. 19-1389 §1 (part), 2019)

In enacting this chapter, it is the intent of the city council to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those involving the sale or distribution of tobacco and nicotine products to youth. (Ord. 19-1389 §1 (part), 2019)

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 (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 or 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; provided, however, that 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.

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

Electronic smoking device has the same meaning as the term is defined in Section 8.40.010.

Enforcement official" means any member of the Hermosa Beach Code enforcement department, the Hermosa Beach police department, the California Department of Health Services, the California Alcohol Beverage Control Department, and the Los Angeles County sheriff’s department, or their designees.

Flavored tobacco product means any tobacco product that 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 "small cigar" or "little cigar."

Package 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 individual, partnership, co-partnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.

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.

Restaurant means a place where people pay to sit and eat meals that are cooked and served on the premises. "Restaurant" does not include a deli where prepared foods are ordered, purchased, and picked up by a person to be eaten outside or off the premises without service.

Sale means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.

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 retailer’s agent or employee. A vending machine is a form of self-service display.

Smoking means the combustion, electrical ignition or vaporization and/or inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation that facilitates the release of gases, particles, or vapors into the air.

Tobacco paraphernalia means any item designed 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, snuff, snus; and
2. Any electronic smoking device, with or without nicotine.
3. Notwithstanding any provision of subsections (1), (2) and (3) of this definition to the contrary, "tobacco product" includes any component, part, or accessory of 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.

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. 19-1392 §1, 2019: Ord. 19-1389 §1 (part), 2019)

It shall be unlawful for any person to engage in tobacco retailing in the city without a valid tobacco retailer license issued pursuant to the provisions of this chapter for each location at which that activity is to occur. No new tobacco retailer license shall be issued under this chapter after January 28, 2020. Tobacco retailers in possession of a valid license on January 28, 2020, may continue to conduct retail tobacco sales and annually renew their licenses in compliance with this chapter. (Ord. 20-1405 §1, 2020: Ord. 19-1389 §1 (part), 2019)

1. No license may be issued under this chapter to authorize tobacco retailing at other than a fixed location, such as on foot or from vehicles.

2. No license may be issued under this chapter to authorize tobacco retailing at a temporary or recurring temporary event, such as farmers’ markets, special events, or mobile carts.

3. No license may be issued under this chapter to authorize tobacco retailing at any location that violates any provision of the Hermosa Beach Zoning Ordinance.

4. Pharmacies. No license may be issued to authorize tobacco retailing in a pharmacy.

5. Schools and Youth-Populated Areas. Tobacco retailing is prohibited near schools and areas with youth populations as follows:

6. No license may issue to authorize tobacco retailing within five hundred (500) feet of a youth-populated area as measured by a straight line from the nearest point of the property line of the parcel on which the youth-populated area is located to the nearest point of the property line of the parcel on which the applicant’s business is located.

For the purposes of this subsection, a "youth-populated area" means a parcel in the city that is occupied by:

1. A private or public kindergarten, elementary, middle, junior high, or high school;

2. A library open to the public;

3. A playground or sandbox area open to the public, as defined by California Health and Safety Code Section 104495; or

4. A youth center, defined as a facility where children, ages six (6) to seventeen (17), inclusive, come together for programs and activities.

5. Premises Furnishing Alcohol and/or Food for On-Site Consumption. No license may issue to authorize tobacco retailing at any of the following locations: (1) a place that is licensed under state law to serve alcoholic beverages for consumption on the premises (e.g., an "on-sale" license issued by the California Department of Alcoholic Beverage Control); or (2) a restaurant, as the term is defined in this chapter.

6. Notwithstanding the foregoing, a tobacco retailer operating lawfully on the effective date of the ordinance codified in this chapter that otherwise would be eligible for a tobacco retailer license for the location for which a license is sought may receive or renew a license for that location so long as: (1) the license is timely obtained and is renewed without lapse or permanent revocation (as opposed to temporary suspension); (2) the tobacco retailer is not closed for business or otherwise suspends tobacco retailing for more than sixty (60) consecutive days; (3) the tobacco retailer does not substantially change the business premises or business operation; and (4) the tobacco retailer retains the right to operate under other applicable laws, including without limitation the Zoning Ordinance, building codes, and business license tax ordinance. (Ord. 19-1389 §1 (part), 2019)

1. A tobacco retailer license issued pursuant to this chapter shall be valid for one (1) year after the date of issuance, unless it is revoked earlier in accordance with the provisions of this chapter. The expiration date of each tobacco retailer license shall be shown on the license itself and each tobacco retailer license shall expire at midnight on the expiration date.
2. Each tobacco retailer who seeks to renew a license issued pursuant to this chapter shall submit a renewal application on a city-approved form and tender any applicable fees to the finance department no later than thirty (30) calendar days prior to the expiration of the license. Any license issued pursuant to this chapter that is not timely renewed shall expire and become null and void at the end of its term.
3. An application to renew a license issued pursuant to this chapter may be denied by the finance department upon the grounds set forth in Section 5.78.070*. (Ord. 20-1405 §2, 2020; Ord. 19-1389 §1 (part), 2019. Formerly 5.78.080)

* Editor’s note: Ordinance 20-1405 repealed Sections 5.78.060, 5.78.070 and 5.78.140 of this chapter as adopted by Ord. 1389, and renumbered the sections of this chapter. This reference is to Section 5.78.070 as adopted by Ord. 1389, not the current Section 5.78.070.

1. No person shall operate under a name, or conduct business under a designation, not specified on the license.
2. A license issued pursuant to this chapter may not be transferred from one (1) person to another or from one (1) location to another. A change in business owner, business name, or location shall render the license null and void, and shall require a new license to be obtained in accordance with the provisions of this chapter. (Ord. 20-1405 §2, 2020;Ord. 19-1389 §1 (part), 2019. Formerly 5.78.090)

The following operating requirements shall be deemed conditions of any tobacco retailer license issued pursuant to the provisions of this chapter, and failure to comply with any such requirement shall be grounds for suspension, revocation, or the imposition of administrative fines in accordance with Section 5.78.100.

1. Posting of License. Each license issued pursuant to this chapter shall be prominently displayed in a publicly visible location at the permitted location.

2. Retail Sales to Persons under Twenty-One (21) Prohibited. No person engaged in tobacco retailing shall sell or offer to sell, give or offer to give, or transfer or offer to transfer any tobacco product to any person who is under the legal age under state law to purchase and possess tobacco products, which is age twenty-one (21) (or eighteen (18) if active military).

3. Positive Identification Required. No tobacco retailer shall sell or transfer a tobacco product to any person who appears to be under the age of thirty (30) years old without first examining the identification of that person to confirm that person is at least the minimum age under state law to purchase and possess the product. The tobacco retailer or agent thereof shall refuse the sale or transfer of any tobacco product to any person who appears to be under the age of thirty (30) years old, who fails to present valid, legal photo identification prior to the sale or transfer.

4. Minimum Age for Persons Selling Tobacco. No person who is younger than twenty-one (21) shall engage in tobacco retailing.

5. Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.

6. Electronic Smoking Device.

7. It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer’s agents or employees to sell or offer for sale, or to possess with intent to sell or offer for sale, any electronic smoking device or products for the electronic smoking device.

8. There shall be a rebuttable presumption that a tobacco retailer in possession of four (4) or more electronic smoking devices, including but not limited to individual electronic smoking devices, packages of electronic smoking devices, or any combination thereof, possesses such electronic smoking devices with intent to sell or offer for sale.

9. Flavored Tobacco Products.

10. It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer’s agents or employees to sell or offer for sale, or to possess with intent to sell or offer for sale, any flavored tobacco product.

11. 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.

12. 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 done the following:

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

14. 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

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

16. 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 package intended for sale to consumers; and (2) conforms to all applicable federal labeling requirements.

17. Minimum Package Size for Little Cigars. No tobacco retailer shall sell to a consumer any little cigar unless it is sold in a package of at least twenty (20) little cigars.

18. False and Misleading Advertising Prohibited. A tobacco retailer who does not have a valid license pursuant to this chapter or whose license has been suspended or revoked shall not display any item or advertisement relating to tobacco products that promotes the sale or distribution of such products from the premises or that could lead a reasonable consumer to believe that tobacco products can be obtained at that location. Such display or advertisement in violation of this provision shall constitute tobacco retailing without a valid license. (Ord. 20-1405 §§2, 3, 2020; Ord. 19-1392 §2, 2019: Ord. 19-1389 §1 (part), 2019. Formerly 5.78.100)

1. Compliance checks shall be conducted so as to allow enforcement officials to determine, at a minimum, if a tobacco retailer is complying with laws regulating youth access to tobacco. The chief of police may also conduct compliance checks to determine compliance with other laws applicable to tobacco retailing.
2. During business hours, enforcement officials shall have the right to enter any place of business for which a license is required by this chapter for the purpose of making reasonable inspections to observe and enforce compliance with the provisions of this chapter and any other applicable regulations, laws, and statutes.
3. The Hermosa Beach police department (or designee thereof) may promulgate and adopt policies, procedures, and guidelines for the participation of persons under the minimum legal age for tobacco purchases in compliance checks pursuant to this chapter ("youth decoys").
4. Enforcement officials shall inspect each tobacco retailer at least one (1) time per every twelve (12) month period. Nothing in this subsection shall create a right of action in any licensee or other person against the city or its agents. (Ord. 20-1405 §2, 2020;Ord. 19-1389 §1 (part), 2019. Formerly 5.78.110)

1. Administrative Fine. In addition to any other penalty authorized by law, violations of this chapter are subject to the administrative citations and penalties provisions in Chapter 1.10.

2. Suspension or Revocation.

3. In addition to any other penalty authorized by law, a tobacco retailer’s license shall be suspended or revoked if the city finds based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, that any of the following has occurred:

4. The licensee or his/her agent or employee has violated any provision of this chapter;

5. The licensee or his/her agent or employee has continued to operate as a tobacco retailer after a license issued pursuant to this chapter has been suspended; or

6. The retailer violates any provision of this chapter twice within any thirty-six (36) month period.

7. Notwithstanding the foregoing, a license may be revoked if it is determined that one (1) or more grounds for denial of a license under former Section 5.78.070* existed at the time the application was made or at any time before the license was issued. No administrative fine shall accompany a revocation of a wrongly issued license.

8. Any applicant aggrieved by a decision revoking or suspending a license pursuant to this chapter may contest the decision in the same manner as a challenge of an administrative citation, pursuant to the procedure set forth in Section 5.78.070(B)*. (Ord. 20-1405 §2, 2020;Ord. 19-1389 §1 (part), 2019. Formerly 5.78.120)

* Editor’s note: Ordinance 20-1405 repealed Sections 5.78.060, 5.78.070 and 5.78.140 of this chapter as adopted by Ord. 1389, and renumbered the sections of this chapter. This reference is to Section 5.78.070(B) as adopted by Ord. 1389, not the current Section 5.78.070(B).

In addition to any other penalty authorized by law, if the city based on a preponderance of evidence, after notice and an opportunity to be heard, determines that any person has engaged in tobacco retailing at a location without a valid tobacco retailer’s license, 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 section at a location, no new license may be issued 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 thirty-six (36) month period, no new license 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.
3. After of a third or subsequent violation of this section at a location within any thirty-six (36) month period, no new license may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until three (3) years have passed from the date of the violation. (Ord. 20-1405 §2, 2020;Ord. 19-1389 §1 (part), 2019. Formerly 5.78.130)

The city manager is hereby authorized to make and promulgate any rules and regulations necessary to implement the requirements of this chapter. The rules and regulations shall be in addition to the requirements set forth in this chapter. In the event of a conflict between a provision set forth in this chapter and a rule or regulation promulgated by the city manager pursuant to this section, the more stringent or restrictive requirement or condition shall apply. (Ord. 20-1405 §2, 2020;Ord. 19-1389 §1 (part), 2019. Formerly 5.78.150)