Long Beach Municipal Code Ch. 5.81 Tobacco Retail Permit

Footnotes:

--- (16) ---

Editor's note— ORD-14-0003 § 1, adopted Mar. 4, 2014, amended Ch. 5.81 in its entirety to read as herein set out. Former Ch. 5.81 §§ 5.81.005—5.81.100, pertained to similar subject matter, and derived from ORD-08-0003 § 1, (part), 2008.

It is the intent of the City Council, in enacting this Chapter, 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.

(ORD-14-0003 § 1, 2014)

The following words as used in this Chapter shall have the meanings set forth in this Section unless otherwise clearly apparent from the context:

A. "Characterizing flavor" means an artificial or naturally-occurring substance that has a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. 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. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a characterizing flavor.

B. "Constituent" means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.

C. "Electronic cigarette" means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances in aerosolized or vaporized form to a person, including, but not limited to, any other device manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, vapes, vaporizers, vape pens, or any other product name or descriptor that can be used to deliver nicotine in aerosolized or vaporized form to a person, including any component, part, or accessory of the device that is intended or reasonably expected to be used during its operation, whether or not sold separately. Electronic cigarette 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 that product is marketed and sold solely for such approved use.

D. "Electronic cigarette paraphernalia" means any item designed, marketed, or reasonably expected to be used for the consumption, use, or preparation of an electronic cigarette, which includes, but is not limited to, cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, electronic cigarette batteries, electronic cigarette chargers, and any other item designed for the preparation, storing, charging, or use of electronic cigarettes.

E. "E-liquid" means any liquid, gel or other substance designed for use with an electronic cigarette, including but not limited to, e-juice, smoke juice or any other product name or descriptor. Excluded from this definition is any non-nicotine containing liquid, gel or other substance that contains cannabis in any form as its active ingredient.

F. "Flavored tobacco product" means any tobacco product that contains a constituent that imparts a characterizing flavor.

G. "Flavored shisha tobacco product" means any shisha tobacco product that contains a constituent that imparts a characterizing flavor.

H. "Hookah" means a type of waterpipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.

I. "Hookah tobacco retailer" means a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories.

J. "Loose-leaf tobacco" consists of cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes.

K. "Nominal cost" means the cost of any item imposed for the transfer from one person to another for less than the total of: (1) twenty-five percent (25%) of the fair market value of the item exclusive of taxes and government fees; plus (2) all taxes and government fees previously paid and all taxes and government fees still due on the item at the time of transfer.

L. "Nonsale distribution" means to give, furnish, or cause or allow to be given or furnished within the jurisdictional limits of the City, a tobacco product, tobacco paraphernalia, an electronic cigarette or electronic cigarette paraphernalia at no cost or at nominal cost to a person who is not a retailer.

M. "Premium cigar" means any cigar that is handmade, is not mass produced by use of mechanization, has a wrapper that is made entirely from whole tobacco leaf, and has a wholesale price of no less than twelve dollars ($12). A premium cigar does not have a filter, tip, or nontobacco mouthpiece and is capped by hand.

N. "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 percent (10%) 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 can or does share, ultimate control over the day-to-day operations of a business.

O. "Shisha tobacco product" means a tobacco product smoked or intended to be smoked in a hookah. "Shisha tobacco product" includes, and may be referred to as, hookah tobacco, waterpipe tobacco, massel, narghile, and argileh. "Shisha tobacco product" does not include electronic cigarettes.

P. "Self-service display" means the open display or storage of tobacco products, tobacco paraphernalia, electronic cigarettes or electronic cigarette paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of a retailer or employee of a retailer and a direct person-to-person transfer between a retailer or employee of a retailer and any other person. A vending machine is a form of self-service display.

Q. "Tobacco paraphernalia" means any item designed, marketed, or reasonably expected to be used for the consumption, use, or preparation of a tobacco product, including, but not limited to, cigarette papers or wrappers, pipe holders of smoking materials of all types, cigarette rolling machines, hookahs, and any other item designed for the smoking or ingestion of tobacco products.

R. "Tobacco product" means the following:

1. Any product containing, made from, or derived from tobacco or nicotine, whether natural or synthetic, that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, vaped, or ingested by any other means, including, but not limited to, cigarettes, cigars, cigarillos, chewing tobacco, pipe tobacco, snuff, shisha; or

2. Any electronic cigarette; or

3. Any e-liquid; or

4. Any tobacco paraphernalia; or

5. Any electronic cigarette paraphernalia; or

6. "Tobacco product" does not include drugs, devices, or any combination of products authorized by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.

S. "Tobacco retailer" means any person, in whole or in part, and all associated owners, employees, managers, or agents, who sells, offers for sale, or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia; "tobacco retailing" shall mean engaging in any of these things.

(ORD-21-0012 § 2, 2021; ORD-14-0003 § 1, 2014)

A. No person or proprietor shall act as a tobacco retailer without first obtaining and maintaining a valid permit for each location at which tobacco retailing is to occur or otherwise as provided in this Chapter. In addition to the criminal penalties attached to violations of this Section, tobacco retailing without a valid tobacco permit is a public nuisance.

B. No permit will be issued to authorize tobacco retailing at any place other than a fixed location; retailing by persons on foot and tobacco retailing from vehicles is prohibited.

C. Violations of this Chapter may constitute an infraction or a misdemeanor.

D. In addition to the above remedy, a violation of this Chapter may be remedied by a civil injunction or abatement action initiated by the City Attorney.

(ORD-14-0003 § 1, 2014)

A. Any person or proprietor desiring a permit to engage in tobacco retailing as provided by this Chapter shall file an application with the City Manager, City Health Officer or designee.

B. An application for a tobacco retailer's permit 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.

C. It is the responsibility of each proprietor to be informed of the laws affecting the issuance of a tobacco retailer's permit.

D. The application for a tobacco retailing permit shall be filed on a form and shall contain such information as is requested by the City, including the following:

1. The name, mailing address and telephone number of the applicant, and the signature of the applicant or an authorized person thereof;

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

3. Photo identification of the person seeking the permit;

4. Proof of State Board of Equalization Tobacco License; and

5. Such other information as may be required by the City Manager or designee, consistent with the purpose of this Chapter, this Code and applicable law.

E. The City Manager or designee shall receive any fee required for the tobacco retail permit. The fee for such permit shall be determined by the City Council by resolution.

F. The City Manager, City Health Officer or designee shall issue the tobacco retail permit to the applicant unless: such application is incomplete or inaccurate, the application seeks authorization for tobacco retailing by a person or location for which a suspension is in effect under this Chapter, or the application seeks authorization for tobacco retailing that is unlawful under this Chapter, this Code or applicable law.

G. Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this Chapter are subject to seizure and forfeiture. Forfeited tobacco products and tobacco paraphernalia may be destroyed.

(ORD-14-0003 § 1, 2014)

A. The tobacco retail permit shall clearly state the following on its face:

1. The legal owner(s) of the permitted premises;

2. Doing Business As (dba), if any;

3. The LBMC Chapter pursuant to which the permit was issued;

4. The business and mailing address of the owner of the permitted premises;

5. The date the permit was issued; and

6. The permit number.

B. The tobacco retail permit shall not be transferable or assignable from one (1) person or proprietor to another or from one (1) location to another location. If the information required in the permit application changes, a new tobacco retailer's permit is required before the business may continue to act as a tobacco retailer. For example, if a proprietor to whom a permit has been issued changes business location, that proprietor must apply for a new permit prior to acting as a tobacco retailer at the new location. Or if the business is sold, the new owner must apply for a permit for that location before acting as a tobacco retailer.

C. Each permittee shall prominently display the permit at each location where tobacco retailing occurs.

D. Possession of a valid tobacco retail permit under this Chapter does not entitle the permittee to engage in an activity which is otherwise prohibited by law. Violations of any tobacco-related laws shall constitute violations of the tobacco retail permit issued pursuant to this Chapter. In addition, a violation of California Penal Code Section 308 or any violation of the Long Beach Municipal Code, may subject the permit holder to suspension or revocation of their permit.

E. No person shall engage in tobacco retailing, if the person is below the minimum age allowed by State law for selling or possessing any tobacco product.

(ORD-14-0003 § 1, 2014)

An annual fee shall be charged for a tobacco retail permit. The fee shall be generally calculated so as to recover the cost of both the administration and enforcement of the tobacco retail permit program, including the cost of issuing the permits, renewing the permits, administering the retailer permit program, retailer education, retailer inspection and compliance checks, documentation of violations, adjudications, and convictions, and prosecution of violators. All fees are nonrefundable, except as required by law. Fees shall not be prorated.

(ORD-14-0003 § 1, 2014)

All tobacco retail permits issued under this Chapter will be for a period not to exceed one (1) year in duration. The City Manager or his or her designee shall automatically renew such permits if the City Manager or designee determines that the permit holder complied with the provisions of this Chapter and applicable laws during the preceding permit term, and if the permit holder pays the annual fee required by this Chapter. All tobacco retailers must notify the City in writing if they discontinue selling tobacco products.

(ORD-14-0003 § 1, 2014)

A. Sale to minors prohibited. It shall be a violation of the permit to sell, give or furnish, or cause to be sold, given or furnished, a tobacco product or tobacco paraphernalia to a natural person under twenty-one (21) years of age in any place within the City.

B. Positive identification required. No retailer shall sell, give or furnish a tobacco product or tobacco paraphernalia to a natural person who appears to be under the age of twenty-seven (27) years without first examining identification to confirm that the recipient is at least twenty-one (21) years of age.

C. Self-service displays of tobacco products or tobacco paraphernalia are prohibited.

D. Nonsale distribution prohibited. No person, motivated by an economic or a business purpose, shall engage in the nonsale distribution of any tobacco product or tobacco paraphernalia in any public place.

E. It is a violation of the permit to violate any federal, State, or local laws relating to youth and tobacco products or youth and tobacco paraphernalia, including, for example, violations of: California Penal Code Section 308; the Stake Act (California Business and Professions Code Sections 22950 et seq.); any laws relating to self-service displays, signage, sale of bidis or single cigarettes, pack size, sampling, or mail order and internet sales; or any other law relating to youth and tobacco products.

(ORD-23-0015 § 1, 2023; ORD-21-0012 § 3, 2021; ORD-14-0003 § 1, 2014)

All permitting requirements and any other regulatory provisions of this Chapter relating to tobacco retailing shall apply the same to the retailing of electronic cigarettes and electronic cigarettes paraphernalia.

(ORD-14-0003 § 1, 2014)

In addition to the administrative penalties detailed pursuant to Section 9.65.060 of the Long Beach Municipal Code, violation of or failure to comply with any provision of Chapter 5.81 may result in the following:

A. For the first violation in any five (5) year period, the tobacco retailer's tobacco retailing permit may be suspended for ten (10) business days;

B. For the second violation in any five (5) year period, the tobacco retailer's tobacco retailing permit may be suspended for thirty (30) business days;

C. For the third violation in any five (5) year period, the tobacco retailer's tobacco retailing permit may be revoked;

D. A tobacco retailer whose permit has been revoked may not apply for a new tobacco retailer's permit for a period of one hundred twenty (120) calendar days after the effective date of revocation.

E. Any decision to suspend or revoke a permit may be appealed pursuant to Section 5.06.010 of the Long Beach Municipal Code.

F. During any period of permit suspension or revocation, the tobacco retailer must remove from public view all tobacco products and tobacco-related advertising.

(ORD-14-0003 § 1, 2014)

If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Chapter, 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 Chapter, or its application to any other person or circumstance. The City of Long Beach 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 sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

(ORD-14-0003 § 1, 2014)

The provisions of this Chapter shall be administered by the Department of Health and Human Services, the Long Beach City Attorney and the Long Beach City Prosecutor offices.

(ORD-14-0003 § 1, 2014)