Oceanside Municipal Code Art. X Tobacco Products

Footnotes:

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Editor's note— Ord. No. 98-18, § 1, adopted May 6, 1998, amended the Code by adding provisions designated as Art. IX, §§ 7.81—7.85. Inasmuch as there already exist provisions so designated, the provisions of said Ord. No. 98-18 have been included herein as Art. X, §§ 7.91—7.95 at the discretion of the editor. See the Code Comparative Table.

[For the purposes of this article, certain terms shall have the meanings ascribed to them in this section, unless the context clearly indicates otherwise.]

Advertising means printed matter that calls the public's attention to things for sale.

Advertising display means a sign, sign-board, poster, or banner that is temporarily or permanently affixed to the ground, sidewalk, a pole or post, or a building, or is displayed in the windows of a commercial establishment, and that is used to advertise or promote products.

Applicant means the person or entity applying for a tobacco retail license pursuant to this article.

Arcade is any establishment within the city (other than a pool hall, billiard hall or cardroom) open to the public with six (6) or more games of skill or amusement installed on the premises.

Business means any sole proprietorship, joint venture, corporation or other business entity formed for profit making purposes, including retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered.

City shall mean the City of Oceanside.

Employee means any person who is employed by any employer consideration for direct or indirect wages or profit, and any person who volunteers his or her services for a non-profit entity.

Licensee means any proprietor holding a tobacco retail license issued by the city pursuant to the provisions of this article.

Minor, for the purposes of this Article, shall mean any individual who is less than twenty-one (21) years of age.

Non-profit entity means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational character, building, political, social or other similar purpose, the net proceeds from the operations of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A public agency is not a non-profit entity within the meaning of this section.

Person shall mean any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

Playground means any outdoor premises or grounds owned or operated by the city, a public or private school, child care center, youth or recreational center, that contains any play or athletic equipment used or intended to be used by minors.

Self-service merchandising means open display of tobacco products and point-of-sale tobacco-related promotional products that the public has access to without the intervention of an employee.

Tobacco product means any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, snuff or any other form of tobacco which may be utilized for smoking, chewing, inhaling or other manner of ingestion including electronic devices used to deliver nicotine or other vaporized liquids to the person inhaling from the device.

Tobacco retailer shall mean any person or governmental entity that operates a store, stand, booth, concession, or other place at which sales of tobacco products are made to purchasers for consumption or use.

Tobacco retail license means a license permitting the sale of any tobacco product pursuant to the provisions of this article.

Tobacco vending machine means any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin or paper currency, or other things representative of value, which dispenses or releases a tobacco product.

Vendor-assisted means only a store employee has access to the tobacco product and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased.

(Ord. No. 98-18, § 1, 5-6-98; Ord. No. 99-13, § 1, 6-16-99; Ord. No. 20-OR0562-1, § 2, 9-9-2020)

(a) No person or business shall engage in the sale of tobacco products without first posting a plainly visible sign at each point of purchase of tobacco products which has wording similar to:

"THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER 21 YEARS OF AGE IS PROHIBITED BY LAW AND SUBJECT TO PENALTIES. PHOTO IDENTIFICATION IS REQUIRED OF PURCHASERS APPEARING TO BE 27 AND YOUNGER."

The letters of the sign shall be at least one-quarter (¼) inch high.

(b) No person, business, tobacco retailer, or owner, manager or operator of any establishment subject to this article shall sell, offer to sell or permit to be sold any tobacco product to an individual without requesting and examining identification of customers appearing to be twenty-seven (27) and younger for the purpose of establishing the purchaser's age as twenty-one (21) years or greater, unless the seller has some other reasonable basis for determining the buyer's age.

(c) No person, business, tobacco retailer or other establishment shall sell or offer for sale cigarettes or other tobacco or smoking products not in the original packaging provided by the manufacturer and with all required health warnings.

(d) It shall be unlawful for any person, business or tobacco retailer to sell, permit to be sold, offer for sale or display for sale any tobacco product by means of self-service merchandising or by means other than vendor-assisted sales.

(e) No person, business or tobacco retailer shall locate, install, keep, maintain or use, or permit the location, installation, keeping, maintenance or use on his, her or its premises any tobacco vending machine for the purpose of selling or distributing any tobacco product.

(f) No person, business or tobacco retailer shall engage in the sale of any tobacco product at other than a fixed location. The sale of any tobacco product by persons on foot or from vehicles is prohibited.

(g) No person, business, or tobacco retailer shall impede or prevent a reasonable annual inspection or other compliance check by the city to ensure compliance with each provision of this article.

(Ord. No. 98-18, § 1, 5-16-98; Ord. No. 20-OR0562-1, 9-9-2020)

(a) It shall be unlawful for any tobacco retailer to engage in the sale of any tobacco product without first obtaining and maintaining:

(1) An annual tobacco retail license for each location at which the advertisement or sale of any tobacco product occurs;

(2) A city-issued business license pursuant to section 15.2 of the Code; and

(3) Any and all required state or County of San Diego permits or licenses.

(Ord. No. 20-OR0562-1, § 2, 9-9-2020)

(a) Application; issuance; denial.

(1) Application for a tobacco retail 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 city and shall include, but not be limited to, the following information:

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

b. The business name, address, telephone number, and email address of each proposed tobacco retailer location;

c. A single name and mailing address authorized by the applicant to receive all communications and notices (the "authorized address") required by, authorized by, or convenient to the enforcement of this article. If an authorized address is not supplied, the applicant shall be understood to consent to the provision of notice at the address specified in subparagraph (b) above;

d. Whether the applicant has ever had any license or permit by any agency or board, or any city, county, state, or federal agency suspended or revoked, or has had any professional or vocational license or permit suspended or revoked within five (5) years immediately preceding the application, and the reason for the suspension or revocation;

e. The name and address of the current owner and lessor of the real property upon which the proposed tobacco retail sales are to be conducted, and a copy of the lease or rental agreement; and

f. Such other information as the city deems necessary for the administration and enforcement of this article.

g. An applicant shall inform the city in writing of any change in the information submitted on an application for a tobacco retail license within ten (10) business days of the change.

(2) Upon receipt of a completed application for a tobacco retail license and the applicable fee, the city shall issue the license unless:

a. The application is incomplete or inaccurate;

b. The application contains a false, misleading, or fraudulent statement, or omission of fact in the application or application process;

c. The application seeks authorization for tobacco retailing at an address that appears on a license that is suspended, has been revoked, or is subject to suspension or revocation proceedings for violation of any of the provisions of this article. However, this subparagraph shall not constitute a reason for denial of a license if either or both of the following apply:

1. The applicant provides the city with sufficient documentation demonstrating that the applicant has acquired or is acquiring the premises or business in an arm's length transaction; and

2. It has been more than five (5) years since the most recent license for that location was suspended or revoked.

d. The application seeks to engage in tobacco retailing in a manner that is unlawful pursuant to any City Code, City Zoning Ordinance, or any other local, state, or federal law; or

e. The applicant has, within five (5) years immediately preceding the date of the filing of the application, been convicted of, suffered a civil penalty, or faced administrative action for violations of any tobacco control law, including, but not limited to: Penal Code section 308, Business and Professions Code section 22950, et seq., Business and Professions Code section 22970, et seq., or a charge of violating a lesser-included or related offense in satisfaction of, or substitute form, an original charge of any of the offenses listed in this subdivision or violation; or has been convicted of, suffered a civil penalty, or faced administrative action for furnishing alcohol to a minor including, but not limited to, a violation of Business and Professions Code section 25658.

(3) At the time of submission of application for a tobacco retail license, or renewal of the license, the applicant shall pay a non-refundable tobacco retail license administration fee in an amount as established by resolution of the city council. The administration fee shall be calculated to recover the total cost of administration and enforcement, including, but not limited to, issuing a license, administering the tobacco retailer license program, an annual inspection, compliance checks, documenting violations, prosecution, and retailer education, when available.

(4) A tobacco retail license is valid for one (1) year from the date of issuance. A license may be valid for less than a year if revoked, suspended, voluntarily surrendered, or otherwise disciplined.

(5) A licensee may apply for renewal of the tobacco retail license. At the time of submission of the renewal, the licensee shall pay an administration fee in an amount as established by resolution of the city council.

(6) A tobacco retail license is not transferrable from one (1) person or business to another or from one (1) location to another.

(b) Suspension; revocation.

(1) In addition to any other remedy available by law, a tobacco retail license may be suspended or revoked for any violation of this article, City Code, City Zoning Ordinance, or other local, state, or federal law according to following provisions:

a. Suspension.

1. A license shall be suspended for a period of thirty (30) days for any first violation within any five-year period;

2. A license shall be suspended for a period of ninety (90) days for second violation within any five-year period; and

3. A license shall be revoked for any violation upon a third violation within any five-year period.

b. Revocation. A license may be immediately revoked if one (1) or more of the bases for denial pursuant to section 7.92.2(a) existed at the time the application was made or at any time before the license was issued.

(c) Appeal. An applicant or licensee may appeal a denial, suspension, or revocation pursuant to the provisions set forth in section 15.5(3) of this Code.

(Ord. No. 20-OR0562-1, § 2, 9-9-2020)

It shall be unlawful for any person, business, or tobacco retailer to distribute free tobacco products or promotional items, except in enclosed areas where minors are not permitted.

(Ord. No. 99-13, § 2, 6-16-99)

(a) Purpose and scope. This section establishes a narrow exemption from the tobacco retail license requirement set forth in section 7.92.1 for certain retailers selling cigars under limited conditions. Except as expressly provided in this section, exempt retailers remain subject to all other provisions of this article, including but not limited to the prohibitions and requirements set forth in section 7.92 relating to age verification, required signage, vendor-assisted sales, and inspection compliance.

(b) Exemption criteria. A retailer shall be exempt from the requirement to obtain a tobacco retail license under this article only if the retailer satisfies all of the following criteria at all times:

(1) Cigar-only sales. The retailer sells only cigars, as defined in subsection (c)(1), and does not sell, offer for sale, or display any other tobacco products.

(2) Single display case. All cigars offered for sale are stored and displayed in one (1) fully enclosed display case located on the premises. For purposes of this section, "display case" means a single, fully enclosed container used for the storage and display of cigars and accessible only through vendor-assisted sales.

(3) Size limitation. The display case does not exceed sixteen (16) inches in any single exterior dimension, measured at the case's maximum exterior points along its length, width, or height.

(4) Minimum price. Each cigar is offered for sale at a minimum pre-tax retail price of twelve dollars ($12.00) per individual cigar, based on the posted shelf or display price. Discounts, coupons, promotions, bundled pricing, or other pricing mechanisms that reduce the effective per-unit price below twelve dollars ($12.00) are prohibited.

(5) Vendor-assisted sales. All cigar sales are conducted exclusively by vendor-assisted sales, as defined in Section 7.91, and customers do not have direct access to the display case or its contents.

(6) State licensing compliance. The retailer maintains a valid and current Cigarette and Tobacco Products Retailer's License issued by the California Department of Tax and Fee Administration pursuant to Business and Professions Code section 22970 et seq.

(c) Definitions. For purposes of this section, the following definitions apply:

(1) Cigar means a roll of tobacco wrapped in leaf tobacco or in any substance containing tobacco, without a tip or mouthpiece, that is not a cigarette as defined in Section 30003 of the Revenue and Taxation Code.

(2) Display case means a single, fully enclosed container used for the storage and display of cigars and accessible only through vendor-assisted sales.

(3) Dimension means the measurement of length, width, or height of the display case, measured in inches at the case's maximum exterior points.

(d) Inspection and records.

(1) Consent to inspection. As a condition of the exemption provided by this section, the retailer consents to reasonable compliance inspections during normal business hours by the city manager or the city manager's designee for the limited purpose of verifying eligibility for the exemption and compliance with this article.

(2) Refusal. Refusal to permit a reasonable compliance inspection shall constitute grounds for immediate loss of the exemption pursuant to subsection (e).

(3) Burden of proof and records. The retailer bears the burden of demonstrating eligibility for the exemption and shall maintain and make available for inspection upon request:

a. Documentation establishing the exterior dimensions of the display case, including photographs or manufacturer specifications;

b. Invoices, receipts, or other records demonstrating the retail price of each cigar offered for sale; and

c. A current copy of the retailer's valid California Cigarette and Tobacco Products Retailer's License issued by the California Department of Tax and Fee Administration.

(4) Retention period. Records required by this subsection shall be maintained for a minimum of three (3) years and shall be made available for inspection during regular business hours upon reasonable notice.

(e) Loss of exemption.

(1) Determination. If the city manager or the city manager's designee determines that a retailer no longer meets the criteria set forth in subsection (b), the retailer shall be deemed ineligible for the exemption.

(2) Notice and cure. Upon written notice of noncompliance, the retailer shall, within thirty (30) days, either:

a. Cure the violation to the satisfaction of the city manager or designee; or

b. Obtain a valid tobacco retail license pursuant to section 7.92.1.

(3) Immediate loss. Immediate loss of the exemption may be imposed without a cure period for violations involving:

a. The sale of tobacco products other than cigars;

b. Sales to minors in violation of state or local law; or

c. Refusal to permit inspection as required by subsection (d).

(4) Post-exemption sales. A retailer that continues to sell tobacco products after losing eligibility for this exemption without obtaining a tobacco retail license shall be subject to enforcement pursuant to subsection (f) and section 7.95.

(f) Enforcement. A retailer operating without a valid exemption or tobacco retail license shall be subject to enforcement as provided in this article and chapter 1.14 of this Code, including administrative, civil, and criminal remedies, as applicable.

(g) No exemption from state law. Nothing in this section shall be construed to exempt any person or retailer from:

(1) The requirement to obtain and maintain a valid California Cigarette and Tobacco Products Retailer's License pursuant to Business and Professions Code section 22970 et seq.;

(2) Compliance with all other applicable state and federal tobacco control laws, including age-verification requirements, health-warning requirements, advertising restrictions, and flavored tobacco product prohibitions; or

(3) Any applicable zoning, land use, or business-licensing requirements imposed by the city.

(h) Severability. If any provision of this section or its application to any person or circumstance is held invalid by a court of competent jurisdiction, the remainder of this section and the application of the provision to other persons or circumstances shall not be affected and shall remain in full force.

(Ord. No. 26-OR0100-1, § 1, 3-25-2026)

(a) No person or employee shall discharge, refuse to hire or in any manner retaliate against any employee or applicant for employment because such employee or applicant agrees to abide by the provision of this article.

(b) No person shall intimidate or threaten any reprisal or effect any reprisal for the purpose of retaliating against another person because such other person seeks to attain compliance with provisions of this article.

(Ord. No. 98-18, § 1, 5-6-98)

This article shall not be interpreted or construed to permit tobacco vending machines and distribution of tobacco product samples where they are otherwise restricted by other applicable laws. Nor shall this article be construed to cause for breach of any pre-existing private contract, or cause for interference with regulations imposed by state or federal law or related to interstate commerce.

(Ord. No. 98-18, § 1, 5-6-98)

Any violation of this article is a public nuisance. In addition to suspension and/or revocation of a tobacco retail license as set forth in section 7.92.2(b), any person, business, licensee, or tobacco retailer who violates any provision of this article shall upon conviction thereof, be guilty of a public offense as defined in section 1.7 of this Code. The owner, operator or manager of any public place or place of employment within the purview of this article shall comply herewith. Such owner, operator or manager shall further post or cause to be posted all signage required by this article. Enforcement of this article may further be made pursuant to section 1.14 of this Code or any other remedy available by law including the commencement of a civil action to redress or abate any such violation.

(Ord. No. 98-18, § 1, 5-6-98; Ord. No. 20-OR-0562-1, § 3, 9-9-2020)