Sebastopol Municipal Code Ch. 8.08 Sales and Distribution of Tobacco Products to Minors

This chapter shall be known as the “Comprehensive Regulation of the Sale and Distribution of Tobacco Products to Protect Minors Ordinance of the City of Sebastopol.”

The City Council, City of Sebastopol, does hereby find that:

A. Substantial scientific evidence exists that the use of tobacco products causes cancer, heart disease, and various other medical diseases. The Surgeon General of the United States has found that tobacco-caused diseases are the leading cause of premature, preventable death and disability.

B. The U.S. Centers for Disease Control have found that at least 434,000 Americans die each year from tobacco-caused diseases. The Surgeon General of the United States and the U.S. Department of Health and Human Services have found that a majority of those Americans who die of tobacco-caused diseases became addicted to nicotine in tobacco products as adolescents, before the age of legal consent.

C. The National Institute on Drug Abuse has concluded that the nicotine in tobacco products is a powerful addictive drug and identify nicotine addiction as the most widespread example of drug dependence in the U.S.

D. The Surgeon General of the U.S. has found that nicotine in tobacco products is as addictive as cocaine and heroin.

E. The National Institute on Drug Abuse found that tobacco use by adolescents precedes and is predictive of adolescent illicit drug use.

F. The Surgeon General of the U.S., the U.S. Department of Health and Human Services, and local public health agencies and private health organizations have found that cigarettes and other tobacco products are easily available to minors from cigarette vending machines, tobacco retailers, distribution of tobacco product samples, and shoplifting. Therefore, strong legislative action and enforcement are necessary to curtail the wide availability of tobacco products to minors.

G. California Penal Code Section 308 prohibits selling, giving or furnishing tobacco products to minors, and prohibits minors from buying, receiving or using falsified identification to obtain tobacco products. However, the present legislative scheme of prohibiting tobacco sales and distribution to minors has proven ineffective in preventing tobacco sales and distribution to minors and preventing minors from buying and obtaining tobacco.

H. Minors have easy access to vending machines selling tobacco products and that the prohibition of the sale or dispensing of tobacco products through vending machines will thereby promote the health, safety and welfare of the residents of Sebastopol under 18 years of age.

I. Distribution of tobacco product samples to minors encourages them to begin smoking cigarettes and using other tobacco products, thereby becoming addicted to cigarettes and other tobacco products, and discourages minors from quitting smoking cigarettes and using other tobacco products. Prohibiting the distribution of tobacco product samples will thereby promote the health, safety and welfare of the residents of Sebastopol under 18 years of age. Therefore, the Council finds it in the public interest to restrict cigarette sales through vending machines, prohibit self-service sales of tobacco products by retailers, and prohibit the distribution of tobacco product samples in the City of Sebastopol. The Council further finds it is within its basic police power to implement and enforce the provisions of this chapter.

“Business” means any sole proprietorship, partnership, 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 Sebastopol.

“Coupon” shall mean any card, note, form, statement, ticket or other issue distributed for commercial or promotional purposes to be later surrendered by the bearer so as to receive an article, service or accommodation without charge.

“Distribute” shall mean to give, deliver, sell, offer to give, deliver, sell, or cause or hire any person to give, deliver, sell or offer to give, deliver or sell.

“Minor” shall mean any individual who is less than 18 years old.

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

“Public event” shall mean any event to which the general public is invited or permitted, including but not limited to musical concerts or performances, athletic competitions, public fairs, carnivals, flea markets, bazaars, and artistic or cultural performances or exhibitions.

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

“Tobacco accessories” means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed primarily for the smoking or ingestion of tobacco products.

“Tobacco products” shall mean any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, snuff or any other form of tobacco which may be utilized for smoking, chewing, inhalation or other manner of ingestion.

“Tobacco product sample” shall mean a tobacco product and/or tobacco accessories distributed to members of the general public at no cost or at a nominal cost for product promotional purposes.

“Tobacco-related promotional product” means baseball caps, tee-shirts, gym bags, coffee mugs, sunglasses, jackets, and related items, which have tobacco advertising logos, images, characters, messages and themes printed on them.

“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 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 tobacco products, and point-of-sale tobacco promotional products, and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased.

A. Any person, business, tobacco retailer, or owner, manager or operator of any other establishment subject to this chapter shall have the following responsibilities:

1. To not sell, give or furnish, or permit to be sold, given or furnished, any tobacco product to a minor in said establishment;

2. To prohibit any cigarette sales from a vending machine in said establishment;

3. To prohibit self-service merchandising of tobacco products; and

4. To not distribute, or permit to be distributed, any tobacco product sample.

B. Enforcement of this chapter shall be the responsibility of the Chief of Police or his/her designee.

C. Any citizen who desires to register a complaint under this chapter may initiate a complaint with the Police Department. The Chief of Police or his/her designee shall notify, and keep a record of notice, any establishment subject to this chapter of all citizen complaints under this chapter regarding apparent violation of this chapter by said person, tobacco retailer, or any owner, manager or operator of any establishment subject to this chapter.

D. Notwithstanding any other provision of this chapter, a private citizen may bring legal action to enforce the provisions of this chapter.

E. While any establishment subject to this chapter is undergoing an otherwise regularly mandated inspection by any City officer, a “self certification” will be required from the owner, manager, operator or other person having control of such establishment that all requirements of this chapter have been complied with.

No person, business, tobacco retailer, or owner, manager or operator of any establishment subject to this chapter shall sell, offer to sell or permit to be sold, distribute, offer to distribute or permit to be distributed any tobacco products to a minor.

Any person, business, tobacco retailer or other establishment subject to this chapter shall post plainly visible signs at the point of purchase of tobacco products which state, “THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIBITED BY LAW.” The letters of said signs should be at least one inch high.

No person, business, tobacco retailer, or owner, manager or operator of any establishment subject to this chapter 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 18 years or greater unless the seller has some conclusive basis for determining the buyer’s age.

Except as provided herein, 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. Any tobacco vending machine in use on the effective date of the ordinance codified in this chapter shall be removed within 30 days after the effective date of the ordinance codified in this chapter. Vending machines located in places in which persons under the age of 18 are prohibited from entering are exempt from the provisions of this section so long as said machines are not located at the entrance thereto.

No person, business, or owner, manager, operator or employee of any establishment shall sell, permit to be sold, offer for sale or display for sale any tobacco product, or point-of-sale tobacco promotional product, by means of self-service merchandising or by means other than vendor-assisted sales. Cartons of cigarettes, multi-packages of smokeless tobacco, cigars and pipe tobacco are exempt from this provision so long as these tobacco products are under constant direct sight surveillance of a store employee. These tobacco products shall be deemed to be under constant direct sight surveillance of an employee only if the tobacco products themselves (and not just the displays, racks, shelves, kiosks, etc., where the products are displayed) are in plain and full view of a store employee.

It shall be unlawful for any person, business, or tobacco retailer to sell, permit to be sold, or offer for sale any tobacco product by means other than customer-assisted sales.

No person, business, or tobacco retailer shall distribute or permit to be distributed any tobacco product sample for commercial purposes to any person who may redeem a coupon, certificate, or other written materials.

Any tobacco vending machine not removed from the premises of any establishment subject to this chapter within the time limits set forth in SMC 8.08.080 shall be deemed a public nuisance, and may be abated by the City in a civil action or by other appropriate legal proceedings.

This chapter 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.

No person, business or employer 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 provisions of this chapter.

In order to increase voluntary compliance with this chapter, the City shall conduct informational activities to notify and educate tobacco retailers and the public of this chapter, which may include, but not necessarily restricted to, any of the following activities:

A. Publication of ordinance in local newspapers;

B. Publication and distribution of materials explaining the ordinance to tobacco retailers, their employees and members of the public;

C. Distribution of appropriate signage;

D. Publication and distribution of materials on merchant education and employee training resources to prevent tobacco sales to minors which are locally available; and

E. Publication and distribution of materials on youth tobacco use prevention, education and cessation services and programs locally available.