Article XIII — TOBACCO PRODUCT SALES AND LICENSURE OF TOBACCO RETAILERS

The following words and phrases, whenever used in this article, shall have the meanings defined in this section unless the context clearly requires otherwise:

(a)

"Arm's Length Transaction" means a sale in good faith and for valuable consideration that reflects the fair market value between two informed and willing parties, neither of which is under any compulsion to participate in the transaction.

(b)

"Child-Resistant Packaging" means packaging that meets the definition set forth in Code of Federal Regulations, Title 16, Section 1700.15(b), as in effect on January 1, 2015, and was tested in accordance with the method described in Code of Federal Regulations, Title 16, Section 1700.20, as in effect on January 1, 2015.

(c)

"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 4.5 pounds per thousand.

(d)

"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.

(e)

"Compliance checks" means systems the department uses to investigate and ensure that tobacco retailers are following and complying with the requirements of this article. Compliance checks may involve the use of persons between the ages of 18 and 20 who purchase or attempt to purchase tobacco products. Compliance checks may also be conducted by the department or other units of government for

educational, research, and training purposes or for investigating or enforcing federal, state, or local laws and regulations relating to tobacco products.

(f)

"Delivery sale" means the sale of any tobacco product to any person for personal consumption and not for resale when the sale is conducted by any means other than an in-person, over-the-counter sales transaction in a tobacco retail establishment. Delivery sale includes the sale of any tobacco product when the sale is conducted by telephone, other voice transmission, mail, the internet, or app-based service. Delivery sale includes delivery by licensees or third parties by any means, including curbside pick-up.

(g)

"Department" means Lake County Department of Health Services and any agency or person designated by the Department to enforce or administer the provisions of this article.

(h)

"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 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.

(i)

"Flavored tobacco product" means any tobacco product that imparts a taste or odor distinguishable by an ordinary consumer, other than the taste or odor of tobacco, either prior to or during the consumption of such tobacco product, including but not limited to tastes or odors relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, mint, wintergreen, menthol, herb, or spice; or a cooling or numbing sensation distinguishable by an ordinary consumer during the consumption of such tobacco product.

(j)

"Licensee" means a person granted a tobacco retailer's license for the location at which tobacco retailing is to occur.

(k)

"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 4.5 pounds per thousand. "Little Cigar" includes, but is not limited to, tobacco products known or labeled as small cigar, little cigar, or cigarillo.

(l)

"Manufacturer" means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States.

(m)

"Moveable place of business" means any form of business that is operated out of a kiosk, truck, van, automobile or other type of vehicle or transportable shelter and not a fixed address store front or other permanent type of structure authorized for sales transactions.

(n)

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

(o)

"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 has or shares ultimate control over the day-to-day operations of a business.

(p)

"Recreation Facility" means an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes, and includes but is not limited to a gymnasium, playing court, playing field, and swimming pool.

(q)

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

(r)

"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 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.

(s)

"Smoking" means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated product containing, made, or derived from nicotine, tobacco, marijuana, or other plant, whether natural or synthetic, that is intended for inhalation. "Smoking" includes using an electronic smoking device.

(t)

"Tobacco Product" means:

(1)

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;

(2)

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

(3)

Any component, part, or accessory of (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, mouthpieces, and pipes.

(u)

"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.

(v)

"Tobacco Retailer" means any person who sells, offers for sale, or exchanges or offers to exchange for any form of consideration, tobacco products. This definition is without regard to the quantity of tobacco products sold, offered for sale, exchanged, or offered for exchange.

(aa)

"Tobacco Retailing" means engaging in the activities of a tobacco retailer.

(Ord. No. 3141, § II, 8-13-2024)

(a)

Tobacco Retailer's License Required. It shall be unlawful for any person to engage in tobacco retailing in Lake County without first obtaining and maintaining a valid tobacco retailer's license for each location at which tobacco retailing 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 issued, it shall be a violation of this article for a licensee, or any of the licensee's agents or employees, to violate any local, state, or federal law applicable to the sale of tobacco products.

(c)

Smoking Prohibited. Smoking, including smoking for the purpose of sampling any tobacco product, is prohibited within the indoor area of any retail establishment licensed under this article. Smoking is also prohibited outdoors within twenty-five (25) feet of any retail establishment licensed under this article.

(d)

Minimum Legal Sales Age. No person engaged in tobacco retailing shall sell a tobacco product to a person under 21 years of age.

(e)

Display of License. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

(f)

Positive Identification Required. No person engaged in tobacco retailing shall sell a tobacco product to another person without first verifying by means of government-issued photographic identification that the recipient is at least 21 years of age.

(g)

Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited. All tobacco products must be stored behind the sales counter, in a locked case, in a storage unit, or in another area not freely accessible to the general public.

(h)

Distance From Youth Appealing Products. It is unlawful for a tobacco retailer to place or maintain, or cause to be placed or maintained, any displays containing tobacco products within five (5) feet of toys, candy, snacks or non-alcoholic beverages inside a licensed retail establishment.

(i)

On-Site Sales. All sales of tobacco products shall be conducted in-person in the licensed location. It shall be a violation of this article for any tobacco retailer or any of the tobacco retailer's agents or employees to engage in the delivery sale of tobacco products or to knowingly or recklessly sell or provide tobacco products to any person that intends to engage in the delivery sale of the tobacco product in Lake County.

(Ord. No. 3141, § II, 8-13-2024)

(a)

Flavored Tobacco Product Sales Prohibited. It shall be unlawful for any tobacco retailer to sell any flavored tobacco product.

(b)

Presumptive Flavored Tobacco Product. A public statement or claim 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 concerning such tobacco product, that such tobacco product has a taste or smell other than tobacco shall constitute presumptive evidence that the tobacco product is a flavored tobacco product.

(Ord. No. 3141, § II, 8-13-2024)

(a)

Packaging and Labeling. No tobacco retailer shall sell any tobacco product to any consumer 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 Samples or Promotional Items. It is unlawful for any person to distribute free or nominally priced tobacco products.

(Ord. No. 3141, § II, 8-13-2024)

(a)

Mobile Vending. No license may issue to authorize tobacco retailing at other than a fixed location. No tobacco retail license will be issued to a moveable place of business.

(b)

Licensed Cannabis Businesses. No license may issue, and no existing license may be renewed, to authorize tobacco retailing at a location licensed for commercial cannabis activity by the State of California.

(Ord. No. 3141, § II, 8-13-2024)

(a)

An application for a tobacco retailer's license 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. All applications shall be submitted on a form supplied by the Department.

(b)

A license issued contrary to article, contrary to any other law, or on the basis of false or misleading information shall be revoked pursuant Section 9-128(c) of this article. 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.

(c)

Applicant submissions shall contain the following information:

(1)

The name, address, and telephone number of each proprietor of the business seeking a license.

(2)

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

(3)

The name and mailing address authorized by each proprietor to receive all communications and notices required by, authorized by, or convenient to the enforcement of this article.

(4)

Proof that the location for which a tobacco retailer's license is sought has been issued all necessary state and local licenses for the sale of tobacco products.

(5)

Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this article or any other local, state, or federal law governing the sale of tobacco products 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 article as specified on the application form required by this section.

(d)

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 thirty (30) calendar days of a change.

(Ord. No. 3141, § II, 8-13-2024)

(a)

Issuance of License. Upon the receipt of a complete and adequate application for a tobacco retailer's license and the license fee required by this article, the Department may approve or deny the application for a license, or it may delay action for a reasonable period of time to complete any investigation of the application or the applicant deemed necessary.

(b)

Denial of Application. The Department may deny an application for a tobacco retailer's license based on any of the following:

(1)

The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this article;

(2)

The application seeks authorization for tobacco retailing at a location for which the jurisdiction prohibits a license to be issued;

(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 in a manner that is prohibited pursuant to this article, that is unlawful pursuant to any other chapter of this Code, or that is unlawful pursuant to any other law; or

(5)

Any other reason the granting of a license to the applicant that is not consistent with the requirements of this article, including the applicant's history of noncompliance with this article and other laws relating to the sale of tobacco products.

(Ord. No. 3141, § II, 8-13-2024)

(a)

Renewal of License. A tobacco retailer's license is invalid if the appropriate 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 (1) year. Each tobacco retailer shall apply for the renewal of their tobacco retailer's license and submit the license fee no

later than thirty (30) days prior to expiration of the current license. A retailer that fails to timely submit a renewal application and fee is ineligible for license renewal and must submit a new application pursuant to Section 9-121.

(Ord. No. 3141, § II, 8-13-2024)

(a)

Licenses Not Transferable. A tobacco retailer's license may not be transferred from one person to another or from one location to another. A new tobacco retailer's license is required whenever a tobacco retailing location has a change in proprietors.

(b)

Past Violations. 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:

(1)

The location has been transferred to new proprietor(s) in an arm's length transaction; and

(2)

The Department determines that there is adequate documentary evidence submitted by the new proprietor(s) establishing that the new proprietor(s) have acquired the location in an arm's length transaction.

(Ord. No. 3141, § II, 8-13-2024)

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 Lake County identified on the face of the permit. Nothing in this article shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law.

(Ord. No. 3141, § II, 8-13-2024)

The fee to issue or to renew a tobacco retailer's license shall be established by resolution of the Board of Supervisors and shall be reviewed annually with the master fee schedule. The fee shall be calculated so as to recover the total cost of administration and enforcement of this article, including, but not limited to, issuing a license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, ensure the licensee has a hazardous waste management plan for disposal of tobacco product waste but shall not exceed the cost of the administration and enforcement of this article. All fees and interest upon proceeds of fees shall be used

exclusively to fund the administration and enforcement of this article. Fees are nonrefundable except as may be required by law.

(Ord. No. 3141, § II, 8-13-2024)

(a)

Compliance with this article shall be monitored by the Department or any law enforcement agency. In addition, the Department may designate additional persons to monitor compliance with this article. All licensed premises must be open to inspection by Department staff or designated persons during regular business hours. At the conclusion of any premise inspection, the license holder shall be provided a report, which, among other things, shall note any documented violations and provide the license holder no greater than fourteen (14) days to cure such violations. Any corrections shall be verified via documentation submitted by the license holder and/or in a subsequent inspection after the period to cure has lapsed.

(b)

Prior to the Department's approval or denial of an application for a license, the Department shall inspect each proposed location for which a complete application for a tobacco retail license is submitted and a nonrefundable application fee has been paid.

(c)

The Department shall inspect each tobacco retailer at least one time per 12-month period to ensure compliance with this article.

(d)

The Department may conduct compliance checks based on allegations of violations received from the public, as resources allow. In collaboration with law enforcement, compliance checks may involve the participation of persons between the ages of 18 and 20 to enter licensed premises to attempt to purchase tobacco products.

(e)

Nothing in this section shall create a right of action in any licensee or other person against the County or its agents.

(Ord. No. 3141, § II, 8-13-2024)

(a)

Fines, Suspension or Revocation of License for Violation. In addition to any other penalty authorized by law, the following penalties shall be imposed on a tobacco retailer or licensee if the Department finds, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee's agents

or employees, have violated any of the requirements, conditions, or prohibitions of Sections 9-117 through 9-120 of this article.

(1)

Upon a finding by the Department of a first violation at a location, the license shall be suspended for thirty (30) days and the tobacco retailer shall pay a one thousand dollars ($1,000.00) fine.

(2)

Upon a finding by the Department of a second violation at a location within any sixty-month period, the license shall be suspended for ninety (90) days and the tobacco retailer shall pay a two thousand five hundred dollars ($2,500.00) fine.

(3)

Upon a finding by the Department of a third violation at a location within any sixty-month period, the license shall be suspended for one hundred twenty (120) days and the tobacco retailer shall pay a five thousand dollars ($5,000.00) fine.

(4)

Upon a finding by the Department of four (4) or more violations at a location within any sixty-month period, the license shall be revoked, and no new license shall issue for the licensee until five (5) years have passed from the date of revocation.

(b)

Appeal of Suspension or Revocation. A decision of the Department to impose penalties under Section 9- 128(a) is appealable to a third-party Hearing Officer designated by the Department and any appeal must be filed in writing with the Department within ten (10) days of mailing of the Department's decision. The appeal shall comply with the provisions of subsections (b)(1)—(b)(4) below. If such an appeal is timely made, it shall stay enforcement of the appealed action. An appeal to a Hearing Officer is not available for a revocation made pursuant to subsection (c) below.

(1)

Upon determining the existence of any of the grounds pursuant to this article for the suspension or revocation of a license, or the imposition of a penalty for tobacco retailing without a license, the Hearing Officer shall issue a notice of intended decision to the licensee, or the person against whom the penalty for tobacco retailing without a license is directed. The notice shall be provided by personal service or by first class mail, postage prepaid, and shall include a copy of the affidavit or certificate of mailing.

(2)

The notice of intended decision shall state all the grounds upon which the revocation, suspension, or imposition of penalty is based.

(3)

The notice of intended decision shall specify the effective date of the action.

(4)

The notice of intended decision shall state that the Department shall give; the licensee, or the person subject to the penalty for tobacco retailing without a license an opportunity to request a hearing thereon. The hearing shall be an informal hearing before the Hearing Officer. Within thirty (30) days of the hearing, or within ten (10) days if no hearing is requested, the Hearing Officer shall issue a decision and serve the decision.

(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 bases for denial of a license under Section 9-122 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 Department.

(Ord. No. 3141, § II, 8-13-2024)

(a)

Ineligible for License. In addition to any other penalty authorized by law, if the Department finds, or if a court of competent jurisdiction determines, 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, 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 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; and the tobacco retailer will be issued a five thousand dollars ($5,000.00) fine for selling without a license. Notification of this violation will be sent to the jurisdiction in which the tobacco retailer was selling without a license.

(Ord. No. 3141, § II, 8-13-2024)

(a)

Any licensee or tobacco retailer who sells, gives, or in any way furnishes to another person who is under 21 years of age any tobacco products resulting in an arrest or citation under the California Penal Code shall result in the suspension of the tobacco retail owner's license pending final disposition of the case. During the period of suspension, the licensee or tobacco retail owner shall be given reasonable notice and an opportunity to demonstrate to the Department that the tobacco products were not sold, given, or in any way furnished to another person who is under 21 years of age.

(1)

Upon a finding by the Department of a first violation at a location, the license shall be suspended for thirty (30) days unless final disposition of the case does not result in a conviction.

(2)

Upon a finding by the Department of a second violation at a location within any sixty-month period, the license shall be suspended for ninety (90) days unless final disposition of the case does not result in a conviction.

(3)

Upon a finding by the Department of a third violation at a location within any sixty-month period, the license shall be suspended for one hundred twenty (120) days unless final disposition of the case does not result in a conviction.

(4)

Upon a finding by the Department of four or more violations at a location within any sixty-month period, the license shall be revoked, and no new license shall issue for the licensee until five (5) years have passed from the date of revocation unless final disposition of the case does not result in a conviction.

(Ord. No. 3141, § II, 8-13-2024)

(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, such 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 evidence presented.

(c)

In addition to other remedies provided by this article or by other law, any violation of this article may be remedied by criminal prosecution by the District Attorney and/or, administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief.

(d)

For the purposes of the civil remedies provided in this article:

(1)

Each day on which a tobacco product is distributed, sold, or offered for sale in violation of this article shall constitute a separate violation of this article; and

(2)

Each individual tobacco product that is distributed, sold, or offered for sale in violation of this article shall constitute a separate violation of this article.

(e)

All tobacco retailers are responsible for the actions of their employees relating to the sale, offer to sell, and furnishing of tobacco products at the retail location. The sale of any tobacco product by an employee shall be considered an act of the tobacco retailer.

(Ord. No. 3141, § II, 8-13-2024)

(a)

Nothing in this article prevents the provision of tobacco products to any person as part of an indigenous practice or a lawfully recognized religious or spiritual ceremony or practice.

(b)

Nothing in this article shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing.

(Ord. No. 3141, § II, 8-13-2024)

It is the intent of the Board of Supervisors to supplement applicable state and federal law and not to duplicate or contradict such law and this ordinance shall be construed consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this article, or its application to any person or circumstance, 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 article, or its application to any other person or circumstance. The Board of Supervisors hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof, irrespective of the fact that any one (1) or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

(Ord. No. 3141, § II, 8-13-2024)