Sonoma Municipal Code Ch. 7.25 Regulating the Manner of Sale of Tobacco Products

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

A. “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 two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm’s length transaction.

B. “Cigar” means (1) any roll of tobacco wrapped entirely or in part in tobacco or in any substance containing tobacco; or (2) any paper or wrapper that contains tobacco and is designed for smoking or ingestion of tobacco products. For the purposes of this subsection, “cigar” includes, but is not limited to, tobacco products known or labeled as “cigar,” “cigarillo,” “tiparillo,” “little cigar,” “blunt wrap,” or “cigar wrap.”

C. “City” means the city of Sonoma, state of California.

D. “Department” means city manager, and any agency or person designated by the department to enforce or administer the provisions of this chapter.

E. “Electronic smoking device” means an electronic device which can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately. “Electronic smoking device” includes any such electronic smoking device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.

F. “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

G. “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 percent 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.

H. “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.

I. “Smoking” means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation.

J. “Tobacco paraphernalia” means any item designed for the consumption, use, or preparation of tobacco products.

K. “Tobacco product” means:

1. 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, and snuff;

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

3. Notwithstanding any provision of subsections (K)(3)(a) and (b) of this section to the contrary, “tobacco product” includes any component, part, or accessory of a tobacco product, whether or not sold separately. “Tobacco product” does not include (a) 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 an approved purpose, or (b) flavored tobacco intended to be smoked by means of a pipe (“pipe tobacco”).

L. “Tobacco retailer” means any person who sells, offers for sale, or does or offers to exchange 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 products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. (Ord. 04-2015 § 2, 2015; Ord. 94-9 § 1, 1994. Formerly 7.25.020).

A. Tobacco Retailer’s License Required. It shall be unlawful for any person to act as a tobacco retailer in the city 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 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, 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 to another person who appears to be under the age of 27 years without first examining the photo 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 without a valid tobacco retailer license or a proprietor without a valid tobacco retailer license, including, for example, a person whose license has been suspended or revoked:

1. Shall keep all tobacco products out of public view. The public display of tobacco products in violation of this provision shall constitute tobacco retailing without a license under SMC 7.25.120; and

2. Shall not display any advertisement relating to tobacco products 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.

H. Flavored Tobacco Products. No tobacco retailer shall sell a tobacco product containing, as a constituent or additive, an artificial or natural flavor (other than tobacco) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or smoke produced by the tobacco product unless (1) the tobacco product consists of a package of cigars that contains at least five cigars or more, or (2) a single cigar for which the retail price exceeds $5.00, or (3) the tobacco product consists of pipe tobacco, or (4) the package of chewing tobacco or snuff contains at least five units or more.

I. Minimum Pack Size for Cigars. Notwithstanding any other provision of this chapter, it shall be a violation of this chapter for any licensee or any of the licensee’s agents or employees to sell, offer for sale, or exchange for any form of consideration:

1. Any single cigar, whether or not packaged for individual sale;

2. Any number of cigars fewer than the number contained in the manufacturer’s original consumer packaging designed for retail sale to a consumer;

3. Any package of cigars containing fewer than five cigars.

4. This section does not apply to the sale or offer for sale of a single cigar for which the retail price exceeds $5.00. (Ord. 04-2022 § 1, 2022; Ord. 04-2015 § 2, 2015).

A. Eligible Locations. The following locations are eligible to apply for a tobacco retailer license:

No license may be issued to authorize tobacco retailing except at the following locations where tobacco products are sold, offered for sale, or exchanged:

1. 482 1st Street East, Sonoma, CA 95476.

2. 19205 Sonoma Hwy., Sonoma, CA 95476.

3. 477 W. Napa St., Sonoma, CA 95476.

4. 465 1st Street West, Suite 100, Sonoma, CA 95476.

5. 540 W. Napa St., Sonoma, CA 95476.

6. 1325 Broadway, Sonoma, CA 95476.

7. 194 W. Napa St., Sonoma, CA 95476.

8. 19181 Sonoma Hwy., Sonoma, CA 95476.

9. 464 1st Street East, Suite H, Sonoma, CA 95476.

10. 19210 Sonoma Hwy., Sonoma, CA 95476.

11. 19249 Sonoma Hwy., Sonoma, CA 95476.

12. 616 Broadway, Sonoma, CA 95476.

13. 573 5th Street West, Sonoma, CA 95476.

14. 925 Broadway, Sonoma, CA 95476.

15. 865 W. Napa St., Sonoma, CA 95476.

B. A tobacco retailer operating lawfully on the effective date of the ordinance codified in this chapter that would otherwise be eligible for a tobacco retailer license for any of the above locations for which a license is sought may receive or renew a license for that location so long as: (1) the license is timely obtained and is renewed without lapse or permanent revocation (as opposed to temporary suspension); (2) the tobacco retailer is not closed for business or otherwise suspends tobacco retailing for more than 60 consecutive days; (3) the tobacco retailer does not substantially change the business premises or business operation; and (4) the tobacco retailer retains the right to operate under other applicable laws, including without limitation the zoning ordinance, building codes, or other applicable codes. (Ord. 04-2015 § 2, 2015).

A. Application for a tobacco retailer’s license shall be submitted in the name of each proprietor proposing to conduct or conducting 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 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 pursuant to SMC 7.25.110(C). Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer’s license any status or right to act as a tobacco retailer in contravention of any provision of law.

All applications shall be submitted on a form supplied by the department 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 person and address”) required by, authorized by, or convenient to the enforcement of this chapter. If an authorized person and address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection (A)(2) of this section.

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. 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. 04-2015 § 2, 2015).

A. Bases for Denial. Upon the receipt of a complete application for a tobacco retailer’s license and the license fee required by this chapter, the department shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:

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

2. The application seeks authorization for tobacco retailing at a location for which this chapter prohibits issuance of tobacco retailer licenses. However, this subsection shall not constitute a basis for denial of a license if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm’s length transaction.

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

4. The application seeks authorization for tobacco retailing at a location other than the one listed in SMC 7.25.030, that is unlawful pursuant to this code, including without limitation zoning ordinance and building code, or that is unlawful pursuant to any other law.

B. Appeal of Denial. Subject to SMC 7.25.110(C), a decision of the department to deny a license is appealable to the city council. All appeals shall follow the procedures as established in Chapter 1.24 SMC. (Ord. 03-2024 § 2(D), 2024; Ord. 04-2015 § 2, 2015).

A. Renewal of License. A tobacco retailer’s license is invalid if the appropriate license 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 calendar 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 November 30th of each year, commencing November 30, 2015, and annually thereafter.

B. Expiration of License. A tobacco retailer’s license that is not timely renewed shall expire on December 31st of each year. To renew a license not timely renewed pursuant to subsection (A) of this section, the proprietor must:

1. Submit the license fee and the 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. 04-2015 § 2, 2015).

A. A tobacco retailer’s license may not be transferred 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: the new proprietor(s) provide the department with clear and convincing evidence that the new proprietor(s) have acquired or are acquiring the location in an arm’s length transaction. (Ord. 04-2015 § 2, 2015).

Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer’s license any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the license. For example, nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including but not limited to any provision of this code including without limitation the zoning ordinance and building codes, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. For example, obtaining a tobacco retailer’s license does not make the retailer a “retail or wholesale tobacco shop” for the purposes of California Labor Code Section 6404.5. (Ord. 04-2015 § 2, 2015).

The fee to issue or to renew a tobacco retailer’s license shall be established from time to time by resolution of the city. 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. Fees are nonrefundable except as may be required by law. (Ord. 04-2015 § 2, 2015).

A. Compliance with this chapter shall be monitored by the department. In addition, any peace officer may enforce the penal provisions of this chapter. The department may designate any number of additional persons to monitor compliance with this chapter.

B. The department shall inspect each tobacco retailer at least one time per 12-month period. Nothing in this subsection shall create a right of action in any licensee or other person against the city or its agents.

C. The department shall not enforce any law establishing a minimum age for tobacco purchases or possession against a person who otherwise might be in violation of such law because of the person’s age (hereinafter “youth decoy”) if the potential violation occurs when:

1. The youth decoy is participating in an inspection supervised by a peace officer, code enforcement official, or the person designated by the city to monitor compliance with this chapter;

2. The youth decoy is acting as an agent of a person designated by the city to monitor compliance with this chapter; or

3. The youth decoy is participating in an inspection funded in part, either directly or indirectly through subcontracting, by the county of Sonoma department of health services or the California Department of Health Services. (Ord. 04-2015 § 2, 2015).

A. Suspension or Revocation of License for Violation. In addition to any other penalty authorized by law, a tobacco retailer’s license shall be suspended or revoked if any court of competent jurisdiction determines, or the department 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 designated in SMC 7.25.020.

1. Upon a finding by the department of a first violation of this chapter at a location within any 60-month period, the license shall be suspended for 30 days.

2. Upon a finding by the department of a second violation of this chapter at a location within any 60-month period, the license shall be suspended for 90 days.

3. Upon a finding by the department of a third violation of this chapter at a location within any 60-month period, the license shall be suspended for one year.

4. Upon a finding by the department of four or more violations of this chapter at a location within any 60-month period, the license shall be revoked.

B. Appeal of Suspension or Revocation. A decision of the department to suspend or revoke a license is appealable to the city council and any appeal must be filed in writing with the city clerk within 15 days of mailing of the department’s decision and the applicable appeal fee must be paid. If such an appeal is timely made, it shall stay enforcement of the appealed action. An appeal to the city council is not available for a revocation made pursuant to subsection (C) of this section.

C. Revocation of License Wrongly Issued. A tobacco retailer’s license shall be revoked if the city council 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 SMC 7.25.050 existed at the time application was made or at any time before the license issued. The decision by the city council shall be the final decision of the city. Such a revocation shall be without prejudice to the filing of a new license application. (Ord. 04-2015 § 2, 2015).

A. In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the city council 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 retailer’s license as follows:

1. After a first violation of this section at a location within any 60-month period, no new license may issue for 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.

2. After a second violation of this section at a location within any 60-month period, no new license may issue for 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.

3. After a third or subsequent violation of this section at a location within any 60-month period, no new license may issue for the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until 60 months have passed from the date of the violation.

B. Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this section are subject to seizure by the department or any peace officer and shall be forfeited after the licensee and any other owner of the tobacco products and tobacco paraphernalia seized is given reasonable notice and an opportunity to demonstrate that the tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this chapter. The decision by the department may be appealed pursuant to the procedures set forth in SMC 7.25.110(B). Forfeited tobacco products and tobacco paraphernalia shall be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure Section 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed, after judgment in that suit becomes final.

C. For the purposes of the civil remedies provided in this chapter, each of the following constitutes a separate violation of this chapter:

1. Each day on which a tobacco product or tobacco paraphernalia is offered for sale in violation of this chapter; or

2. Each individual retail tobacco product and each individual retail item of tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this chapter. (Ord. 04-2015 § 2, 2015).

A. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

B. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of 18 years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

C. Violations of this chapter are subject to a civil action brought by the city attorney, punishable by a civil fine not less than $250.00 and not exceeding $1,000 per violation.

D. Violations of this chapter may, in the discretion of the city attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require.

E. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.

F. Violations of this chapter are hereby declared to be public nuisances.

G. In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the city attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. (Ord. 04-2015 § 2, 2015).

This chapter shall not be enforced by the city until September 1, 2015. (Ord. 04-2015 § 2, 2015).