Chapter 5.28 — TOBACCO RETAILER LICENSE

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

"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 2 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.

"Characterizing flavor" means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcohol beverage, 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.

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

"Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal 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 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 share ultimate control over the day-to-day operations of a business.

"Self-service display" means the open display or storage of tobacco products or tobacco paraphernalia 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 person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.

"Smoking." Refer to Section 9.04.170 for definition.

"Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, vaporizers and any other item designed for the smoking, preparation, storing, or consumption of tobacco products. For the purpose of this chapter, electronic cigarette supplies are considered tobacco paraphernalia.

"Tobacco product" means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; and 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 cessation product specifically approved by the United States Food

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City of Oroville, CA

OROVILLE CODE

§ 5.28.010

§ 5.28.030

and Drug Administration for use in treating nicotine or tobacco dependence. For the purpose of this chapter, electronic cigarettes are considered a tobacco product. For the purposes of this title, tobacco products exclude products with a characterizing flavor.

"Tobacco retailer" means any person who sells, offers for sale, or exchanges for any form of consideration, tobacco, tobacco products or tobacco paraphernalia. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

(Ord. 1794 § 1; Ord. 1841 § 2, 2020)

• A. Tobacco Retailer License Required. It is unlawful for any person to act as a tobacco retailer in the City of Oroville 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. 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 is issued, it shall be a violation of this chapter for a licensee, or any of the licensee's agents or employees, to violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.

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

• D. Positive Identification Required. No person engaged in tobacco retailing shall sell or transfer a tobacco product or tobacco paraphernalia to another person who appears to be under the age of 27 years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess the tobacco product or tobacco paraphernalia.

• E. Minimum Age for Persons Selling Tobacco. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing.

• F. Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.

• G. False and Misleading Advertising Prohibited. A tobacco retailer or proprietor without a valid tobacco retailer license, including, for example, a person whose license has been revoked: 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.

• (Ord. 1794 § 1)

No license issued may authorize tobacco retailing at any location other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.

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City of Oroville, CA

BUSINESS LICENSES AND REGULATIONS

§ 5.28.030

§ 5.28.050

• (Ord. 1794 § 1)

• A. 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.

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 of Oroville that the proprietor has complied with all laws applicable to tobacco retailing. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked. All applications shall be submitted on a form supplied by the City of Oroville and 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 single fixed location for which a license is sought.

3. A single name and mailing address authorized by each proprietor to receive all communications and notices (the "authorized address") required by, authorized by, or convenient to the enforcement of this chapter. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in paragraph 2 of this subsection.

4. Proof that the location for which a tobacco retailer's license is sought has been issued a valid state tobacco retailer's license by the California Board of Equalization.

5. Whether or not any proprietor or any agent of the proprietor 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 5 years.

6. Such other information as the department deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.

• B. 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 10 business days of a change.

• C. All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code Section 6250 et seq.) or any other applicable law, subject to the laws' exemptions.

• (Ord. 1794 § 1)

Upon the receipt of a complete application for a tobacco retailer's license and the license fee required by this chapter, the city shall issue a license unless substantial evidence demonstrates

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City of Oroville, CA § 5.28.050

OROVILLE CODE

§ 5.28.080

that one or more of the following bases for denial exists:

• A. The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter.

• B. The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued.

• C. The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter (e.g., mobile vending), that is unlawful pursuant to this Code (e.g., zoning code, building code, and business license tax ordinance), or that is unlawful pursuant to any other law.

• (Ord. 1794 § 1)

• 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 year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's license and submit the license fee no later than 30 days prior to expiration of the term.

• B. Expiration of License. A tobacco retailer's license that is not timely renewed shall expire at the end of its term. To renew a license not timely renewed pursuant to subsection A of this section, the proprietor must:

  1. Submit the license fee and application renewal form; and

  2. Submit a signed affidavit affirming that the proprietor has not sold and will not sell any tobacco product or tobacco paraphernalia after the license expiration date and before the license is renewed.

• (Ord. 1794 § 1)

• A. 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 proprietor(s).

• B. Notwithstanding any other provision of this chapter, 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 fully transferred to a new proprietor or fully transferred to entirely new proprietors; and

  2. The new proprietor(s) provide the city with clear and convincing evidence that the new proprietor(s) have acquired or is acquiring the location in an arm's length transaction.

• (Ord. 1794 § 1)

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City of Oroville, CA

BUSINESS LICENSES AND REGULATIONS

§ 5.28.080

§ 5.28.100

The fee to issue or to renew a tobacco retailer's license shall be established from time to time by resolution of the city council. The fee shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this chapter. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law.

(Ord. 1794 § 1)

Compliance checks shall be conducted so as to allow the city to determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with laws regulating youth access to tobacco. When the department deems appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing. (Ord. 1794 § 1)

• A. The sale or offer for sale, by any person or tobacco retailer of any flavored tobacco product is prohibited and no person or tobacco retailer shall sell, or offer for sale, any flavored tobacco product.

• B. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer's agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor including, but not limited to, text, color, and/or images on the product's labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.

• (Ord. 1841 § 3, 2020)

• A. Revocation of License for Violation. In addition to any other penalty authorized by law, a tobacco retailer's license shall be revoked if any court of competent jurisdiction determines, or the city finds based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee's agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter or has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of any law.

• B. New License After Revocation.

  1. After revocation for a first violation of this chapter, no new license may be issued for the location until 10 days have passed from the date of revocation.

  2. After revocation for a second violation of this chapter, no new license may be issued for the location until 60 days have passed from the date of revocation.

  3. After revocation for a third violation of this chapter, no new license may be issued for

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City of Oroville, CA § 5.28.100

OROVILLE CODE

§ 5.28.140

the location until one year has passed from the date of revocation.

4. After revocation for a fourth or subsequent violation of this chapter, no new license may be issued for the location until 5 years have passed from the date of revocation.

• C. Appeal of Revocation. A decision of the city to revoke a license may be appealed as specified in Section 17.56.100 of this Code.

• D. Revocation of License Wrongly Issued. A tobacco retailer's license shall be revoked if the city 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 this Code existed at the time application was made or at any time before the license issued. Such a revocation shall be without prejudice to the filing of a new license application.

• (Ord. 1794 § 1)

In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the department finds based on a preponderance of evidence, 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 retailing license as follows:

• A. After a first violation of this section, no new license may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until 30 days have passed from the date of the violation.

• B. After a second violation of this section, no new license may issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until 90 days have passed from the date of the violation.

• C. After a third or subsequent violation of this section at a location, no new license may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until 5 years have passed from the date of the violation.

• (Ord. 1794 § 1)

• A. Violations of this chapter are punishable by a civil fine not less than $* and not exceeding $* per violation (California Government Code Section 36901).

• B. Violations of this chapter are hereby declared to be a public nuisance.

• See Master Fee Schedule for current amount.

• (Ord. 1794 § 1)

Nothing in this chapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by federal or state law. (Ord. 1841 § 4, 2020)

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City of Oroville, CA

BUSINESS LICENSES AND REGULATIONS

§ 5.28.140

§ 5.28.140

If any provision, section, subsection, sentence, clause, phrase, or word of this Chapter 5.28, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of the chapter. The city council hereby declares that it would have passed this chapter, and each provision, section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this chapter or application thereof would be subsequently declared invalid or unconstitutional. (Ord. 1841 § 4, 2020)

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City of Oroville, CA § 5.32.010

BUSINESS LICENSES AND REGULATIONS

§ 5.32.050