Chapter 9.28 — RESTRICTIONS ON THE ADVERTISING, ACCESS AND PROMOTION OF TOBACCO

PRODUCTS TO PROTECT MINORS[1] Editor's note— Ord. No. 10-06, § 2, adopted May 4, 2010, amended Ch. 9.28 in its entirety to read as herein set out. Former Ch. 9.28, §§ 9.28.010—9.28.160, pertained to similar subject matter, and derived from: Ord. 00-04, § 2(part).

The purpose of this chapter is to promote the welfare of minors by discouraging the commercial exploitation of potential underage tobacco users, the unlawful sale of tobacco products to minors and the unlawful purchase or possession of tobacco products by minors. (Ord. No. 10-06, § 2, 5-4-10)

In this chapter: "Adult" means any person or persons over the minimum age at which it is legal to purchase or possess (whichever minimum age is older) tobacco products. A driver's license or other government-issued identification shall be deemed to be sufficient proof of adulthood. "Adult-only facility" means a facility or restricted area (whether open-air or enclosed) where the operator ensures or has a reasonable basis to believe (such as by checking identification as required under state law, or by checking the identification of any person appearing to be under the age of twenty-seven (27)) that no underage person is present. A facility or restricted area need not be permanently restricted to adults in order to constitute an adult-only facility, provided that the operator ensures or has a reasonable basis to believe that no underage person is present during the event or time period in question.

"Characterizing flavor" means a distinguishable taste or aroma imparted by a tobacco product or any byproduct produced by the tobacco product that is perceivable by an ordinary consumer by either the sense of taste or smell, other than the taste or aroma of tobacco. A "characterizing flavor" includes, but is not limited to, a taste or aroma relating to a fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. "Cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; or (2) tobacco, in any form, 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; or (3) 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 in clause (1) of this definition. The term "cigarette" includes "roll-your-own" (i.e., any tobacco 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). "City Manager" means the City Manager or his/her designee. "Flavored tobacco product" means any tobacco product that contains a constituent that imparts a characterizing flavor. Menthol cigarettes are included in the definition of a flavored tobacco product for the purposes of this chapter. A tobacco product whose labeling or packaging contains text or an image indicating that the product imparts a characterizing flavor is presumed to be a flavored tobacco product. "Menthol cigarettes" means cigarettes as defined by federal law that have a characterizing flavor of menthol, mint, or wintergreen, including cigarettes advertised, labeled, or described by the manufacturer as possessing a menthol characterizing flavor. "Nonsale distribution" means to give tobacco products to the general public at no cost, or at nominal cost, or to give coupons, coupon offers, or rebate offers for tobacco products or cigarettes to the general public at no cost or at nominal cost. Distribution to an adult of tobacco products, coupons, coupon offers, gift certificates, gift cards, or other similar offers, or rebate offers in connection with the sale of another item, including tobacco products, cigarette lighters, magazines, or newspapers shall not constitute nonsale distribution. "Offering for sale" refers to tobacco products that are sold or displayed in a retail establishment. "Smokeless tobacco product" means any finely cut, ground, powdered, or leaf tobacco that is intended to be placed in the oral cavity as defined in the Comprehensive Smokeless Tobacco Health Education Act, 15 U.S.C. § 4401 et seq. "Tobacco product" means cigarettes, smokeless tobacco products, any vaping device that contains nicotine or can be used to deliver nicotine in aerosolized or vaporized form; any product containing, made from, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, and snuff; or any component, part, or accessory of a tobacco product, whether or not it is sold separately.

"Underage" means younger than the minimum age at which it is legal to purchase or possess (whichever minimum age is older) tobacco products. "Vaping product" means any device or delivery system that can be used to deliver nicotine to a person in aerosolized or vaporized form, including but not limited to, an electronic cigarette, electronic cigar, electronic pipe, electronic hookah, or vape pen. This definition of "vaping product" includes any component, part, or accessory, including, but not limited to, a cartridge that is used during the operation of the device or delivery system. (Ord. No. 10-06, § 2, 5-4-10; Ord. No. 22-01, § 1(Att. A), 5-17-22)

This chapter shall be administered by the City Manager. The City Manager may issue guidelines to ensure implementation of this chapter. (Ord. No. 10-06, § 2, 5-4-10)

No person shall place or maintain any advertising or promotion of tobacco products in violation of the provisions of Chapter 17.18 ("Signs") of the Orinda Municipal Code. (Ord. No. 10-06, § 2, 5-4-10)

No person in the business of selling or distributing tobacco products for commercial purpose shall, in the course of business, distribute, authorize or permit an agent or employee to engage in Nonsale distribution within the City of Orinda. (Ord. No. 10-06, § 2, 5-4-10)

A. It is unlawful for a person to sell, offer for sale, or display for sale any tobacco product by means of a self- service display, rack, counter top or shelf that allows a self-service customer access to a tobacco product. B. Every tobacco product shall be offered for sale exclusively by means of seller assistance. Every tobacco product shall be located exclusively in a locked case, located behind a counter out of reach from customers, or in a similar location that is inaccessible to customers and requires seller assistance for the customer to obtain access to the tobacco product. C. Exceptions. Subsections A and B of this section do not apply to vending machines located in an adult-only facility.

(Ord. No. 10-06, § 2, 5-4-10)

It is unlawful for a person or retailer to sell, or offer to sell, any flavored tobacco or vaping product. (Ord. No. 22-01, § 1(Att. A), 5-17-22)

A. License Required. It is unlawful for a person or retailer who, within the last twelve (12) months, has been found to be in violation of this chapter or applicable state or federal law governing the sale and distribution of tobacco, to sell or offer for sale any tobacco product within the city without first obtaining and maintaining a tobacco retailer's license from the city. B. It is unlawful for a person or retailer who is required to have a tobacco retailer's license to sell or offer a tobacco product for sale if the license has been suspended pursuant to Section 9.28.080. (Ord. No. 10-06, § 2, 5-4-10)

A. The City Manager shall issue each tobacco retailer's license. B. An application for a tobacco retailer's license shall be submitted in the name of the person or retailer, who, following a finding of a violation of this chapter or applicable state or federal law governing the sale and distribution of tobacco, proposes to conduct retail tobacco sales. The application shall be signed by the person or retailer or its authorized agent. The application shall be submitted on a form provided by the city and shall contain the following information: 1. The name, address, and telephone number of the applicant; 2. The business name, address and telephone number where tobacco is to be sold; and 3. Such other information as the City Manager determines is reasonably necessary for implementation of this chapter.

C. Failure to Pay Fine. Any outstanding fines must be paid before the city issues a tobacco retailer's license under this section. D. Upon receipt of a completed application for a tobacco retailer's license, including payment of the license fee and any outstanding fines, the City Manager shall issue a license. E. The fee for a tobacco retailer's license shall be established from time to time by the City Council and shall reflect the actual cost of processing the license, including the cost of any inspection of the tobacco retailer's business premises and implementation costs for the licensing program. F. The license must be prominently displayed at the location where tobacco retail sales are conducted. G. The Tobacco Retailer's License is Nontransferable. If there is a change in location, a new tobacco retail license will be issued for the new address upon receipt of an application. The new license shall retain the same expiration date as the previous license. H. Suspension of License. To discourage violations of law, a tobacco retailer's license may be suspended if the City Manager finds that the licensee or an employee or other agent has violated the provisions of this chapter or any state or federal law governing the sale or distribution of tobacco. The City Manager may suspend the license only after giving the licensee notice and a reasonable opportunity to be heard on the matter. The City Manager shall put the findings regarding the violation in writing. 1. The first time that the City Manager finds a violation has occurred, the license may be suspended for up to sixty (60) days. 2. After the second time within a twelve-month period that the City Manager finds a violation has occurred, the license may be suspended for up to one hundred twenty (120) days. 3. After the third and each subsequent time within a twelve-month period that the City Manager finds a violation has occurred, the license may be suspended for up to one (1) year. 4.

Appeal of suspension. A decision of the City Manager to suspend a tobacco retailer's license may be appealed to the City Council. I. A License is Valid for Three (3) Years. If there is no further violation of a law regulating the sale or distribution of tobacco during that three-year period, a tobacco retailer's license is no longer required. (Ord. No. 10-06, § 2, 5-4-10)

A. City Manager review. A private citizen or a city officer or employee may submit a written complaint to the City Manager reporting violations of this chapter. B. If the City Manager finds a violation of this chapter, the City Manager shall serve written notice requiring correction of the violation upon the person responsible. The notice shall specify a date by which the violation must be corrected. The notice shall be served by: (1) personal service; or (2) certified first class mail. The person responsible shall correct the violation within the time specified in the notice. C. Imposition of fine. The City Manager may impose an administrative fine, as permitted under Government Code Section 53069.4, upon finding a violation of this chapter. A fine may be imposed only after the City Manager gives notice and an opportunity to be heard. D. Fine amount. The fine amounts are as set from time to time City Council resolution. E. Fine procedures. 1. Notice. Notice of the fine shall be served by certified first class mail. The notice shall contain notice of the right to request a hearing before the City Council contesting the imposition of the fine. The hearing must be requested within ten (10) days of the date of the notice of the fine. 2. Judicial review. A person contesting the decision of the City Council may seek judicial review under Government Code section 53069.4(b). F.

Separate violations. 1. Each day that an advertisement or promotion of tobacco products is placed or maintained in violation of the provisions of Chapter 17.18 ("Signs") of the Orinda Municipal Code is a separate violation. 2. Each instance of nonsale distribution in violation of this chapter is a separate violation. 3. Each day that the self-service provisions of this chapter are violated is a separate violation. 4. Each day that the flavored tobacco and/or vaping products provisions of this chapter are violated is a separate violation. 5. Each day that a tobacco product is offered for sale without a license by a person or retailer required to have a license is a separate violation. Each day that a tobacco product is offered for sale by a person or retailer with a suspended license is a separate violation. 6. For the purposes of determining liability, each location at which a violation of this chapter occurs is considered a separate entity. (Ord. No. 10-06, § 2, 5-4-10; Ord. No. 22-01, § 1(Att. A), 5-17-22)

A. Intent as to additional legal restrictions and remedies. This chapter is not intended to alter the obligations or restrictions that apply to a person under any other law governing matters covered by this chapter. The remedies set forth in this chapter are not exclusive. If an action prohibited by this chapter is also unlawful under another law, the penalties and remedies under other laws may be pursued in addition to those provided in this chapter. B. Disclaimers. In regulating tobacco products, the city is promoting the general welfare. It is not assuming, nor is it imposing upon its officers and employees, a mandatory duty or obligation. Nothing in this chapter shall render the city liable to any person who claims that the city's action or inaction caused injury. (Ord. No. 10-06, § 2, 5-4-10)