Lancaster Municipal Code Ch. 5.42 Tobacco Retailer Regulations

This chapter shall be known as the city of Lancaster's Tobacco Retailer Regulations.

(Ord. 855 § 1 (part), 2006)

The city council finds and declares as follows:

More than 440,000 people die in the United States from tobacco-related diseases every year, making it the nation's leading cause of preventable death; and

The World Health Organization (WHO) estimates that by 2030, tobacco will account for 10 million deaths per year, making it the greatest cause of death worldwide; and

The California Legislature has recognized the danger of tobacco use and has made reducing youth access to tobacco products a high priority, as evidenced by the fact that:

• The Legislature has declared that smoking is the single most important source of preventable disease and premature death in California (Cal. Health & Safety Code § 118950); and

• State law prohibits the sale or furnishing of cigarettes, tobacco products, and smoking paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors (Cal. Pen. Code § 308); and

• State law requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under eighteen (18) years of age (Cal. Bus. & Prof. Code § 22956) and provides procedures for using persons under 18 years of age to conduct onsite compliance checks of tobacco retailers (Cal. Bus. & Prof. Code § 22952); and

• State law prohibits the sale of tobacco products and paraphernalia through self-services displays except in adult-only establishments (Cal. Bus. & Prof. Code § 22962); and

• State law prohibits the sale of "bidis" (hand-rolled filter-less cigarettes imported primarily from India and Southeast Asian countries) except in adult-only establishments (Cal. Pen. Code § 308.1); and

• State law prohibits the manufacture, distribution, or sale of cigarettes in packages of less than twenty (20) and prohibits the manufacture, distribution, or sale of "roll-your-own" tobacco in packages containing less than 0.60 ounces of tobacco (Cal. Pen. Code § 308.3); and

State law requires all tobacco retailers to be licensed by the Board of Equalization in order to curb the illegal sale and distribution of cigarettes which deprive the state yearly of hundreds of millions of tax dollars that fund local and state programs such as health services, antismoking campaigns, cancer research, and education programs (Cal. Bus. & Prof. Code §§ 22970.1, 22972); and

State law explicitly permits cities and counties to enact local tobacco retail licensing ordinances, and allows for the suspension or revocation of a local license for a violation of any state tobacco control law (Cal. Bus. & Prof. Code § 22971.3); and

California courts in such cases as Cohen v. Board of Supervisors, 40 Cal. 3d 277 (1985), and Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 (1993), have affirmed the power of the City of Lancaster to regulate business activity in order to discourage violations of law; and

Despite the state's efforts to limit youth access to tobacco, minors are still able to access cigarettes, as evidenced by the fact that:

• Nearly half of all youth smokers nationwide buy the cigarettes they smoke, either directly from retailers or vending machines, or by giving money to others to purchase the cigarettes for them; and

• Minors consume nine hundred twenty-four million (924,000,000) packs of cigarettes each year nationwide, yielding the tobacco industry $480 million in profits from underage smokers; and

• Most adults who have ever tried smoking have tried their first cigarette under the age of eighteen (18), and are on average under the age of sixteen (16);

Research demonstrates that local tobacco retail ordinances dramatically reduce youth access to cigarettes, as evidenced by the following:

• A study of several states found that youth sales of tobacco moved from a baseline of 70% of retailers selling to minors before the adoption of the ordinance to less than 5% in the year and a half after enactment; and

• A study of the effect of licensing and enforcement methods used in the Philadelphia area revealed a decrease in sales to minors from 85% in 1994 to 43% in 1998; and

• A study of several Minnesota cities found that an increased licensing fee in conjunction with strict enforcement of youth access laws led to a decrease from 39.8% to 4.9% in the number of youth able to purchase tobacco; and

The implementation of tobacco-licensing requirements is supported by most Californians, as evidenced by the following:

• 73% of California adults think tobacco retailers should be licensed;

• 65% of California's key opinion leaders surveyed support implementation of tobacco-licensing requirements; and

• Over 90% of enforcement agencies surveyed in 2000 rated license suspension or revocation after repeated violations as an effective strategy to reduce youth access to tobacco;

Forty-two (42) cities and counties in California have passed tobacco retailer licensing ordinances in an effort to stop minors from smoking, and

Six hundred fifteen (615) communities in the United States require a license to sell tobacco products and provide penalties such as suspension or revocation of the license for illegal conduct (e.g., selling tobacco to minors); and

California retailers continue to sell tobacco to underage consumers, evidenced by the following:

• 14% of all tobacco retailers unlawfully sold to minors in 2004;

• 31.5 % of non-traditional tobacco retailers such as deli, meat, and produce markets sold to minors in 2004;

• Teens surveyed in 2002 say they bought their cigarettes at: gas stations (58%), liquor stores (45%), and supermarkets and small grocery stores (25%);

A requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute cigarettes or other tobacco products to adults. It will, however, allow the city of Lancaster to regulate the operation of lawful businesses to discourage violations of federal, state, and local tobacco-related laws; and

The city of Lancaster has a substantial interest in promoting compliance with federal, state, and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and finally, and most importantly, in protecting children from being lured into illegal activity through the misconduct of adults; and

It is the intent of the city council, in enacting this ordinance, to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco and nicotine products to minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein.

(Ord. 855 § 1 (part), 2006)

Unless the particular provision requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this chapter.

"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 the violations of this chapter is not an arm's length transaction.

"City" means the city of Lancaster.

"City council" means the city council of the city of Lancaster.

"City manager" means the city manager of the city of Lancaster, or his/her designated representative.

"Person" means any individual, or corporation, partnership, association or other group or combination of individuals acting as an entity.

"Proprietor" means a Person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a Person has a ten (10) percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day-to-day operations of a business.

"Self-service display" means the open display of tobacco products or tobacco paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. A vending machine is a form of self-service display.

"Smoking" means possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind), the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind).

"Tobacco paraphernalia" means cigarette papers or wrappers, pipe holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking or ingestion of tobacco products.

"Tobacco product" means: (1) any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and (2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco product dependence.

"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; or any person who distributes free or nominal cost tobacco, tobacco products or tobacco paraphernalia for a business purpose; or any person who distributes a proxy for tobacco, tobacco products, or tobacco paraphernalia, such as, for example, a coupon, coupon offer, rebate offer, check, credit, token, code, or password, at any event or location open to the public and associated with or sponsored in part by a tobacco brand or a tobacco company; "tobacco retailing" shall mean engaging in any of these things.

"Vending machine" means a machine, appliance, or other mechanical device operated by currency, token, debit card, credit card, or any other form of payment that is designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

(Ord. 855 § 1 (part), 2006)

A. It shall be a misdemeanor for any person, within the city of Lancaster, to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's license, pursuant to this chapter, for each location at which that activity is to occur. No license will be issued to authorize tobacco retailing at any place other than a fixed location; peripatetic tobacco retailing and tobacco retailing from vehicles is prohibited.

B. It shall be a violation of a tobacco retailer's license for a licensee or his or her agents or employees to violate any local, state, or federal tobacco-related law.

C. A tobacco retailer or proprietor without a valid tobacco retailer license, including, for example, a person whose license has been revoked:

1. Shall keep all tobacco products and tobacco paraphernalia out of public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a license under Section 5-31-12.

2. Shall not display any advertisement relating to tobacco products or tobacco paraphernalia 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.

D. Nothing in this chapter shall be construed to grant any Person obtaining and maintaining a tobacco retailer's license any status or right other than the right to act as a tobacco retailer at the location in the city identified on the face of the license. For example, nothing in this chapter shall be construed to render inapplicable, supercede, 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 regulations, building codes, and business license tax provisions of Title 3, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. For example, obtaining a tobacco retailer license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code Section 6404.5.

(Ord. 855 § 1 (part), 2006)

Application for a tobacco retailer's license shall be submitted to the city manager in the name of each Proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof under penalty of perjury. 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 city that the proprietor has complied with all laws applicable to tobacco retailing. A license issued contrary to this chapter, or contrary to any other law, or on the basis of false or misleading information supplied by a proprietor, or due to omission of a material fact, shall be revoked pursuant to Section 5.42.110 of this chapter. Nothing in this chapter 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.

All applications shall be submitted on a form supplied by the city manager and such other information as the city manager deems necessary for the administration or enforcement of this chapter.

(a) The application shall accompanied by proof that the location for which a tobacco retailer's license is sought has been is-sued a valid state tobacco retailer's license by the California Board of Equalization.

(b) The application shall contain a statement as to whether or not any proprietor has admitted violating, or has been found to have violated, this chapter or whose proprietorship has admitted violating, or has been found to have violated, this chapter and, if so, the dates and locations of all such violations within the previous six years.

(c) All information required to be submitted in order to apply for a tobacco retailer's license shall be updated with the city manager whenever the information changes. A tobacco retailer shall provide the city manager in writing with any updates within ten (10) business days of a change.

(Ord. 855 § 1 (part), 2006)

A. Upon receipt of an application for a tobacco retailer's license and the license fee, the city manager shall issue a license unless substantial record evidence demonstrates one of the following bases for denial:

1. The application is incomplete or inaccurate; or

2. The application seeks authorization for tobacco retailing by a person or at a location for which a suspension is in effect pursuant to this chapter; or by a person which or who has had a license revoked pursuant to this chapter; or

3. The application seeks authorization for Tobacco Retailing that is unlawful pursuant to any section of this chapter; or

4. The application seeks authorization for tobacco retailing that is unlawful pursuant to any state or federal law.

B. The license issued pursuant to this chapter shall state on its face such information as shall be determined by the city manager.

C. It shall be the responsibility of the city attorney or his or her designee to enforce all provisions set forth in this chapter, which includes but is not limited to the following:

1. Investigate and prosecute tobacco retailers who fail to obtain and/or maintain a permit.

2. Conduct any and all audits that may be necessary in the investigation of tobacco retailers.

D. It shall be the responsibility of the city manager to administer and process the tobacco retailer license application; mail renewal notices to licensees by November 1st of each year; and deposit funds collected for duplicate licenses pursuant to this chapter in the general fund.

(Ord. 855 § 1 (part), 2006)

Each licensee shall promptly display the license issued pursuant to this chapter at each location where tobacco retailing occurs.

(Ord. 855 § 1 (part), 2006)

The tobacco retailer license shall be renewed annually concurrent with the renewal of the tobacco retailer's business license pursuant to Chapter 5.04.

(Ord. 855 § 1 (part), 2006)

A. Tobacco retailer's license is not transferable, except as provided in subsection (B) below. If a new person acquires a business engaged in tobacco retailing, that person must apply for a new permit on or before the 1st day of the month following the month in which the tobacco retailing business is acquired. The transferee of the license must apply for a license in the transferee's name before acting as a tobacco retailer.

B. A license shall be transferable, whether by sale or otherwise, if the person in which the real ultimate ownership of the business after the transfer is substantially similar to the real or ultimate ownership existing before the transfer. Any license reissued pursuant to this section shall expire on the date the previous permit for the business or person would have otherwise expired.

(Ord. 855 § 1 (part), 2006)

The city council shall establish by resolution, and from time to time may amend, the fees for the administration of this chapter. Fees required by this chapter shall be in addition to any required under any other chapter of this code.

(Ord. 855 § 1 (part), 2006)

A. Compliance with this chapter shall be monitored by the sheriff's department, the business license department, and code enforcement officials. Any peace officer or code enforcement officials may enforce the penal provisions of this chapter.

B. The sheriff's department or code enforcement officials should endeavor to check the compliance of each tobacco retailer at least two times per twelve (12) month period. The sheriff's department or code enforcement officials may check the compliance of tobacco retailers previously found to be in compliance a fewer number of times so that the enforcement agency may check the compliance of tobacco retailers previously found in violation of the licensing law a greater number of times. Nothing in this paragraph shall create a right of action in any licensee or other Person against the city or its agents by reason of such compliance checks.

C. Compliance checks shall determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with tobacco laws regulating youth access to tobacco. When appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing.

D. The city shall not enforce any law establishing a minimum age for tobacco purchases or possession against a 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 a compliance check supervised by a peace officer or a code enforcement official of the city; or

2. The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Los Angeles County Health Department or the California Department of Health Services.

(Ord. 855 § 1 (part), 2006)

A. The city manager may refuse to renew a license or may revoke or suspend and existing license on the grounds that the applicant or licensee has failed to comply with the license conditions or other requirements of this chapter. If a suspended license lapses during the suspension period, a new application must be made at the end of the suspension period. Unpaid fees on a previously suspended license must be paid prior to acceptance of an application for a new license. In any such case, the applicant or licensee shall have the right to appeal to the city council in the time and manner set forth in this section.

B. In addition to any other penalty authorized by law, a tobacco retailer's license may be suspended or revoked if the city finds, after notice to the licensee and an opportunity to be heard, that the licensee or his or her agents or employees has violated the conditions of the license imposed pursuant to Section 5.42.040 of this chapter.

1. Upon a finding by the city of a first violation, the license may be suspended for up to thirty (30) days;

2. Upon a finding by the city of a second violation within a five-year period of the first violation, the license may be suspended for up to ninety (90) days;

3. Upon a finding by the city of a third violation within a five-year period of the first violation, the license may be revoked.

C. A tobacco retailer's license may be revoked if the city finds, after notice and an opportunity to be heard, that one of the following conditions exist. The revocation shall be without prejudice to the filing of a new application for a license.

1. The application is incomplete for failure to provide the information required by Section 5.42.050;

2. The information contained in the application, including supplemental information, if any, is found to be false in any material respect; or

3. The application seeks authorization for a license that is unlawful as specified in Section 5.42.060(A)(3) or (4).

D. When the city concludes that grounds for denial, suspension, revocation or refusal to renew a license exist, the city manager shall serve the applicant or licensee, either personally or by certified mail addressed to the business or residence address of the applicant or licensee, with a notice of denial or notice of intent to suspend, revoke or refuse to renew license. This notice shall state the reasons for the proposed action, the effective date of the decision, the right of the applicant or licensee to appeal the decision to the city council and the decision will be final if no appeal is filed within the time permitted.

E. Appeal.

1. Any appeal shall be filed in accordance with the uniform appeals procedure set forth in Chapter 2.44 of the code.

2. In the event an appeal is timely filed, a revocation is stayed and shall not be effective until a final decision has been rendered by the city council. A suspension, however, is not stayed by the filing of a notice to appeal. If no appeal is filed, the suspension or revocation shall become effective upon expiration of the period for filing appeals.

(Ord. 855 § 1 (part), 2006)

The provisions of this chapter shall be applicable to all persons and businesses described herein whether the herein described activities were established before or after the effective date of this chapter, except that tobacco retailers legally in business prior to the effective date of the ordinance first enacting this chapter shall have sixty (60) days to comply with the regulations for tobacco retailers set forth herein. Please note that the tobacco retailers license is required in addition to a city of Lancaster business license.

(Ord. 855 § 1 (part), 2006)

A. Violations of this chapter shall constitute a misdemeanor and shall be punishable in the manner provided in Section 1.12.020(A).

B. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall constitute a violation.

C. Violations of this chapter are hereby declared to be public nuisances. The city attorney or the district attorney may, in addition to or in lieu of prosecution in a criminal action hereunder, commence an action or actions, proceeding or proceedings for the abatement, removal and enjoinment thereof, in the manner provided by law, and shall take such other steps, and shall apply to such courts or court as may have jurisdiction to grant such relief as will abate or remove such tobacco retailers and restrain and enjoin any person from acting as a tobacco retailer contrary to the provisions of this chapter. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

(Ord. 855 § 1 (part), 2006)

This chapter and the various parts, sections and clauses thereof are declared severable. If any part, sentence, paragraph, section or clause is adjudged unconstitutional or invalid, the remainder of this chapter shall not be affected thereby. The city council declares that it would have passed this chapter and each part thereof, regardless of the fact that one or more parts thereof be declared unconstitutional or invalid.

(Ord. 855 § 1 (part), 2006)