San Rafael Municipal Code Ch. 8.15 Tobacco Product Retail Sales, Advertising and Promotion

Footnotes:

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Editor's note— Ord. No. 1970, div. 2, adopted June 3, 2019, amended Ch. 8.15 and in so doing changed the title from tobacco retail sales, advertising and promotion to read as set out herein.

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

1. "Advertising display sign" means a sign, billboard, poster, freestanding sign, balloon, pennant or banner that is temporarily or permanently placed on or affixed to the ground, the sidewalk, a pole or post, a fence, or a building, or is displayed in the windows or doors of a commercial establishment, and that is used to advertise or promote products.

2. "Characterizing flavor" means 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.

3. "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.

4. "Distinguishable" means perceivable by either the sense of smell or taste.

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

6. "Labeling" means written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.

7. "Mobile billboard" means any sign, placard, billboard, or other advertisement display upon or affixed to a vehicle which display is used to advertise a product illegal to sell to minors, when the supporting vehicle or trailer is parked within a public right-of-way or on private property and visible to the public for a duration of time and in a manner which clearly indicates that the sign is for advertising products illegal to sell to minors or which carry a specific brand name, logo, or indicia of a product illegal to sell to minors. For the purpose of this chapter, a mobile billboard shall not include any advertisements on the side of a van, truck, or other vehicle which is primarily used for the transportation of goods or products.

8. "Packaging" means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold, or offered for sale, to a consumer.

9. "Person" means any individual person, firm partnership, association, corporation, company, organization, or legal entity of any kind.

10. "Pharmacy" means a retail establishment in which the profession of pharmacy by a pharmacist licensed by the State of California in accordance with the Business and Professions Code is practiced and where prescription products are offered for sale. A pharmacy may also offer other retail goods in addition to prescription pharmaceuticals.

11. "Promote" or "promotion" means a display of any logo, brand name, character, graphics, colors, designs, or recognizable color or pattern of colors, or any other indicia or product identification with, or similar to, or identifiable with, those used for any particular brand of tobacco product.

12. "Publicly visible location" means any outdoor location that is visible from any street, sidewalk, or other public thoroughfare, or any location inside a commercial establishment immediately adjacent to a window or door where such location is visible from any street, sidewalk, or other public thoroughfare.

13. "Tobacco product" means:

a. Any product containing, made, 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 and any flavored tobacco product.

b. Any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah.

c. Notwithstanding any provides of subsections (1) an (2) to the contrary, "tobacco product" includes any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately. "Tobacco product" 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 such product is marketed and sold solely for such approved purpose.

14. "Tobacco retailer" means any store, stand, booth, concession or any other enterprise that engages in the retail sale of tobacco products, including, but not limited to, pharmacies and stores that engage in the retail sale of food; "tobacco retailing" shall mean the doing of any of these things.

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

No person shall place or maintain, or cause or allow to be placed or maintained, in any manner, any advertising or promotion of tobacco products on an advertising display sign in a publicly visible location within five hundred feet (500′) of the perimeter of an elementary or secondary school, high school, public playground or playground area in a public park (e.g., a public park with equipment such as swings and seesaws, baseball diamonds or basketball courts), day care center, public community center or public library.

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

The restrictions contained in Section 8.15.010 shall not apply to advertising or promotions for tobacco products that are:

1. Located inside a commercial establishment, unless such advertising display sign or promotion is attached to, affixed to, leaning against, or otherwise in contact with any window or door in such a manner that it is visible from a street, sidewalk or other public thoroughfare.

2. On vehicles, other than mobile billboards.

3. On any sign located inside or immediately outside a commercial establishment if the sign provides notice that the establishment sells tobacco products, so long as the sign does not promote any brand of tobacco product.

4. On tobacco product packaging.

Notwithstanding the foregoing, however, the provisions of Chapter 14.19 ("Signs") of this Code shall apply.

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

No person may market, license, distribute, sell, or cause to be marketed, licensed, distributed or sold any item or service to a minor, which bears the brand name, alone or in conjunction with, any other word, logo, symbol, motto, selling message, recognizable color or pattern of colors, or any other indicia or product identification identical with, or similar to, or identifiable with, those used for any brand of tobacco product.

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

It is unlawful for any person to sell, permit to be sold, offer for sale, or display for sale, any tobacco product by any means of self-service merchandising, including, but not limited to, self-service display, rack, countertop or shelf, or any means other than vendor-assisted sales. All tobacco products shall be offered for sale exclusively by means of vendor assistance, and all tobacco products shall be either in a locked case or in an area not accessible to the public prior to sale.

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

Editor's note— Ord. No. 1970, div. 2, adopted June 3, 2019, amended former § 8.15.100 to be renumbered as § 8.15.040, as set out herein.

Any person, business, or tobacco retailer shall post plainly visible signs at the point of purchase of tobacco products which state "THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER TWENTY-ONE YEARS OF AGE IS PROHIBITED BY LAW. PHOTO ID REQUIRED." The letters of said signs shall be at least one inch (1″) high.

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

Editor's note— Ord. No. 1970, div. 2, adopted June 3, 2019, amended former § 8.15.110 to be renumbered as § 8.15.050, as set out herein.

No person, business, or tobacco retailer shall sell, offer to sell or permit to be sold any tobacco product to an individual without requesting and examining identification establishing the purchaser's age as twenty-one (21) years or greater.

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

Editor's note— Ord. No. 1970, div. 2, adopted June 3, 2019, amended former § 8.15.120 to be renumbered as § 8.15.100, as set out herein.

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. No. 1970, div. 2, 6-3-2019)

No person shall sell tobacco products in a pharmacy.

(Ord. No. 1970, div. 2, 6-3-2019)

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 vending machine for the purpose of selling or distributing any tobacco product.

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

It is unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's permit pursuant to this chapter for each location at which that activity is to occur. No permit may be issued to authorize tobacco retailers at other than a fixed location; peripatetic tobacco retailing and tobacco retailing from vehicles are prohibited. Permits are valid for one (1) year. Each tobacco retailer must apply for the tobacco retailer's permit or for the renewal of the tobacco retailer's permit at the same time the applicant applies for, or renews their city business license.

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

A. Application for a tobacco retailer's permit shall be submitted in the name of the person or entity proposing to conduct retail sales of tobacco products and shall be signed by such person or an authorized agent thereof. All applications shall be submitted to the city and shall contain the following information:

1. The name, address, telephone and fax numbers of the applicant.

2. The business name, address, telephone and fax numbers of each location for which a tobacco retailer's permit is sought.

3. Such other information as the city deems reasonably necessary for implementation and enforcement of this chapter.

B. A fee for the tobacco retailer's permit shall be established by city council in its fee schedule resolution as amended from time to time. The applicant shall pay the fee at the time the application is submitted. The application shall be submitted at the same time as the applicant's initial application for or renewal of a city business license.

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

A. Upon the receipt of an application for a tobacco retailer's permit, the city shall issue a permit unless the community development director, or designee, determines that evidence demonstrates one (1) of the following bases for denial:

1. The application is incomplete or inaccurate.

2. The application seeks authorization for tobacco retailing by a person or at a location for which a suspension is in effect pursuant to Section 8.15.250 of this chapter.

3. The application seeks authorization for tobacco retailing that is otherwise unlawful under provisions of state or federal law or the provisions of the San Rafael Municipal Code.

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

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

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

A tobacco retailer's permit is nontransferable. In the event a person to whom a permit has been issued changes business location or sells the business referenced in that person's permit, that person must apply for a new permit prior to acting as a tobacco retailer at the new location. The transferee of the permittee must apply for a permit in the transferee's name before acting as a tobacco retailer. Any permit reissued pursuant to this section shall expire on the date the previous permit for the business or person would have otherwise expired.

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

A. Grounds for Suspension or Revocation.

1. A tobacco retailer's permit shall be revoked if the director of community development, or designee, finds, after not less than ten (10) days' notice and opportunity to be heard, that one (1) or more of the bases for denial of a permit under Section 8.15.220 of this chapter exists. The revocation shall be without prejudice to the filing of a new application for a permit following correction of the conditions which required revocation.

2. A tobacco retailer's permit shall be suspended if the director of community development, or designee, finds, after not less than ten (10) days' notice and opportunity to be heard, that the permittee or his or her agent or employee has violated any federal, state or local law governing the sale, promotion, advertisement or display of tobacco products.

B. Suspension of Permit.

1. If the director of community development, or designee, finds that there are grounds for suspension of a permit, the permit shall be suspended for ninety (90) days unless (a) the permittee submits a training plan within a reasonable time established by the city, in form and content acceptable to the city, for the training of all sales employees in the laws pertaining to the sale, advertisement, and display of tobacco products to minors, and, techniques to ensure future compliance with said laws; and (b) the permittee files with the city, within such time as is reasonably established by the city, satisfactory evidence that the training described in the training plan has been completed.

2. Upon the second finding by the director of community development, or designee, of a violation by a permittee or by any agent or employee of a permittee within any twelve-month period, the permit shall be suspended for one hundred twenty (120) days.

3. Upon each subsequent finding by the director of community development, or designee, of a violation by a permittee or by any agent or employee of a permittee within any twelve-month period, the permit shall be suspended for one (1) year.

C. Appeal of Suspension and/or Revocation. The decision is appealable pursuant to the provisions of Chapter 14.28 of the San Rafael Municipal Code.

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

A violation of any provision of this chapter is hereby declared a public nuisance and shall be punishable as provided for in Chapters 1.42, 1.44 and 1.46 of this Code. These remedies shall be in addition to all other legal remedies, criminal or civil, which may be pursued by the city to address any violation of this chapter.

(Ord. 1741 § 2 (part), 1999; Ord. No. 1970, div. 2, 6-3-2019)

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. No. 1970, div. 2, 6-3-2019)

Notwithstanding anything in this chapter to the contrary, this chapter shall not be applicable to any matter regulated by Chapter 10.96 of this Code entitled "Cannabis Business."

(Ord. No. 1970, div. 2, 6-3-2019)