Chapter 5.42 — TOBACCO RETAILERS

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

"Administrator" means the Finance Director or designee.

"Arm's length transaction" means a sale or transfer, in good faith and for valuable consideration between two informed and willing parties, as determined by the parties, neither of which is under any compulsion to participate in the transaction. A sale or transfer for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm's length transaction.

"Coupon" means any voucher, rebate, card, paper, note, form, statement, ticket, image, or other issue, whether in paper, digital, or other form, used for commercial purposes to obtain an article, product, service, or accommodation without charge or at a discounted price.

"Department" means the Finance Department.

"Drug paraphernalia" shall have the definition set forth in California Health and Safety Code Section 11014.5, as that section may be amended from time to time.

"Electronic smoking device" means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. Electronic smoking device does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

"Flavored Tobacco Product" means any tobacco product that imparts:

1. A taste or odor distinguishable by an ordinary consumer, other than the taste or odor of tobacco, either prior to or during the consumption of such tobacco product, including, but not limited to, tastes or odors relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, mint, wintergreen, menthol, herb, or spice; or

2. A heating, cooling, or numbing sensation distinguishable by an ordinary consumer during the consumption of such tobacco product.

"License" means a tobacco retailer's license as defined below.

"Licensee" means a tobacco retailer with a tobacco retailer's license.

"Manufacturer" means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States.

"Nominal cost" means the cost of any item that is transferred from one person to another for less than the total of: (1) 25% of the full retail value of the item exclusive of taxes and fees; plus (2) all taxes and fees previously paid and all taxes and fees still due on the item at the time of transfer.

"Nonsale distribution" means to give, within the jurisdictional limits of the City, a tobacco product or coupon at no cost or at nominal cost to a person who is not a tobacco seller.

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

"Pharmacy" means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals.

"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.

"Public place" means any place within the City, public or private, that is open to the general public regardless of any fee or age requirement, including, for example, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, and buses.

"Retailer" means tobacco retailer as defined herein.

"Self-service display" means the open display or storage of tobacco products 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.

"Single-use electronic smoking product" means an electronic smoking device that is not refillable or rechargeable and is typically discarded once its contents have been used. It includes without limitation:

1. Any electronic device or delivery system that can be used to deliver an inhaled dose of nicotine, flavorings, chemicals, or other substances in aerosolized or vaporized form for human consumption, including, but not limited to, an electronic cigarette, cigar, pipe, vape pen, or hookah.

2. Any component, part, or accessory of such a device or delivery system that is used during its operation.

3. Any flavored or unflavored liquid or substance, whether sold separately or sold in combination with any such device or delivery system, that could be used to deliver tobacco products, nicotine, or other substances in aerosolized or vaporized form.

4. Any product for use in such an electronic device or delivery system whether it contains nicotine or tobacco or is derived from nicotine or tobacco.

"Tobacco product" means:

1. Any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including, but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;

2. Any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or

3. Any component, part, or accessory of subsections (1) or (2), whether or not any of these contains tobacco or nicotine, including, but not limited to, filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.

"Tobacco product" does not mean drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco products. This definition is without regard to the quantity of tobacco products sold, offered for sale, exchanged, or offered for exchange.

"Tobacco retailer's license" means the license issued pursuant to this chapter that authorizes tobacco retailing at a certain location and by a certain tobacco retailer.

"Tobacco retailing" means engaging in the activities of a tobacco retailer. (Ord. 741-10 § 2, 2010; Ord. 791-13 Exh. A § 1, 2013; Ord. 919-24, 4/9/2024)

• A. Tobacco Retailer License Required. It is 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 the sale of tobacco products.

• 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 identification of the recipient to confirm that the recipient is at least the minimum age under State law.

• E. Minimum Age for Persons Selling Tobacco. Persons employed by a tobacco retailer under this chapter that sell tobacco products must be at least the minimum legal sales age established by State law.

• 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:

  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; 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. Signage Violations. It is a violation of this chapter for any licensee to violate any local, State, or Federal law regulating exterior, storefront, window, or door signage.

• I. Drug Paraphernalia. It is a violation of this chapter for any licensee or any of the licensee's agents or employees, to violate any local, State, or Federal law regulating controlled substances or drug paraphernalia.

• J. Nonsale Distribution of Tobacco Products Prohibited.

  1. No tobacco retailer nor any agent or employee of a tobacco retailer shall engage in the nonsale distribution of any tobacco product or coupon in any public place.

2. No person, motivated by an economic or a business purpose, shall knowingly permit the nonsale distribution of any tobacco product or coupon: (a) anywhere in any public place under the legal or de facto control of the person; or (b) through any agent or employee of the person. This provision shall not apply to coupons incidentally distributed in connection with a printed or electronic publication, such as, for example, magazines, newspapers, and websites, so long as that person's distribution of a publication containing coupons is not primarily motivated by an economic or a business purpose to distribute coupons.

   3. No tobacco retailer may honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than the full retail price.

   4. No tobacco retailer may sell any tobacco product to a consumer through a multiplepackage discount or otherwise provide any such product to a consumer for less than the full retail price in consideration for the purchase of any tobacco product or other item.

   5. No tobacco retailer may provide any free or discounted item to a consumer in exchange for the purchase of any tobacco product.

• K. Minimum Pack Size for Cigars.

  1. Notwithstanding any other provision of this chapter, no tobacco retailer shall sell, offer for sale, or exchange for any form of consideration:

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

     • b. Any number of cigars fewer than the number contained in the manufacturer's original consumer packaging designed for retail sale to a consumer; or

     • c. Any package of cigars containing fewer than 10 cigars.

     • d. Cigars at a price of less than $15 per package of 10 cigars, including all applicable taxes and fees.

  2. This subsection does not apply to the sale or offer for sale of a single cigar for which the retail price exceeds either eight dollars, including all applicable taxes and fees. This amount may be increased annually by the Consumer Price Index, as determined by the City Council and adopted by resolution.

  3. This subsection shall apply to cigars, cigarillos and any other cigar product regardless of the terminology used for the product.

• L. Sale of Single-Use Electronic Smoking Products. No person may sell or possess with the intent to sell any single-use electronic smoking product within the City.

• M. Flavored Tobacco Products. It shall be unlawful for any tobacco retailer to sell any flavored tobacco product.

1. Presumptive Flavored Tobacco Product. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product is a flavored tobacco product. Any communication by or on behalf of the manufacturer or retailer of a tobacco product that such tobacco product imparts a taste or odor other than the taste or odor of tobacco, or that imparts a heating, cooling, or numbing sensation, constitutes presumptive evidence that the tobacco product is a flavored tobacco product. This includes, but is not limited, to public statements that a product is flavored, such as describing the product as "chill." "ice." "fresh," "arctic," "sweet." "spicy," or "frost."

• (Ord. 741-10 § 2, 2010; Ord. 791-13 Exh. A § 2, 2013; Ord. 919-24, 4/9/2024)

• A. No license shall be issued to authorize tobacco retailing at other than a fixed location.

• B. No license shall be issued to authorize tobacco retailing at a location where tobacco products are prohibited from being distributed pursuant to Title 18.

• C. No license shall be issued to a location or a tobacco retailer where prohibited pursuant to Section 5.42.110.

• D. Proximity to other tobacco retailers. No license may issue, and no existing license may be renewed, to authorize tobacco retailing within 500 feet of a tobacco retailer location already licensed pursuant to this chapter as measured by a straight line from the nearest point of the property line of the parcel on which the applicant's business is located to the nearest point of the property line of the parcel on which an existing licensee's business is located. This restriction does not apply to an applicant who has been licensed to sell tobacco products as of March 1, 2024.

• E. Pharmacies. No license may issue, and no existing license may be renewed, to authorize tobacco retailing in a pharmacy.

• (Ord. 741-10 § 2, 2010; Ord. 791-13 Exh. A § 3, 2013; Ord. 919-24, 4/9/2024)

• A. Application for a tobacco retailer's license shall be submitted in the name of each proprietor proposing to conduct tobacco retailing 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 Section 5.42.110(D) of this chapter. 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 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 subsection (A)(2);

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 Department of Tax and Fee Administration;

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 five years;

6. A statement signed by each proprietor that no drug paraphernalia is or will be sold at the location for which the license is sought;

7. 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. 741-10 § 2, 2010; Ord. 919-24, 4/9/2024)

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

• C. The application seeks authorization for tobacco retailing for a proprietor or location for which this chapter prohibits a license to be issued, including the provisions of Section 5.42.110;

• D. 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 or that is unlawful pursuant to any other law;

• E. The location for which a tobacco retailer's license is sought lacks a valid state tobacco retailer's license by the California Department of Tax and Fee Administration.

• (Ord. 741-10 § 2, 2010; Ord. 919-24, 4/9/2024)

• A. Term and 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 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, the proprietor must:

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

  2. Submit a signed affidavit affirming that the proprietor:

     • a. Has not sold and will not sell any tobacco product after the license expiration date and before the license is renewed; or

     • b. Has waited the appropriate ineligibility period established for tobacco retailing without a license, as set forth in Section 5.42.110(A) of this chapter, before seeking renewal of the license.

• (Ord. 741-10 § 2, 2010; Ord. 791-13 Exh. A § 4, 2013; Ord. 919-24, 4/9/2024)

• 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. 741-10 § 2, 2010; Ord. 919-24, 4/9/2024)

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 permit. 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, 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 license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code Section 6404.5.

(Ord. 741-10 § 2, 2010; Ord. 919-24, 4/9/2024)

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 and shall be included within the City's Master Fee Schedule. 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 this chapter, 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. 741-10 § 2, 2010; Ord. 919-24, 4/9/2024)

• A. Compliance with this chapter shall be monitored by the Police Department. The City may designate any number of additional persons to monitor compliance with this chapter.

• B. Compliance checks shall be conducted so as to allow the Police Department to determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with laws regulating youth access to tobacco products. When the Police Department deems appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing.

• (Ord. 741-10 § 2, 2010; Ord. 791-13 Exh. A § 5, 2013; Ord. 919-24, 4/9/2024)

• A. Suspension or Revocation of Tobacco Retailer License for Violation. In addition to any other penalty authorized by law, a Tobacco Retailer License shall be suspended or revoked if the Department finds or a court of competent jurisdiction determines, 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 provision of this chapter.

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

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

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

  4. Upon a finding of four or more violations of this chapter at a location within any fiveyear period, the license shall be revoked with no new license issued for a five-year period.

• B. Procedures. If the licensee contacts the Administrator to challenge the finding of a violation, the Administrator shall provide written notice of a hearing, not less than five business days after the notice, at which the tobacco retailer may show cause, at a time and place specified in the notice, why a violation does not exist. Should the tobacco retailer fail to present evidence at such hearing establishing, in the reasonable determination of the Administrator, that a violation does not exist, the Administrator shall provide written notice to the tobacco retailer that the notice of violation is upheld. If a license is subject to revocation, the Administrator shall provide written notice of revocation along with the reasons for revocation, facts suggesting violation, the penalties for violation, and ability to appeal pursuant to subsection C. Within five days of the mailing of notice of revocation, the tobacco retailer shall cease the operation of the business for which the license was issued.

• C. Appeal of Revocation. A decision of the Administrator to revoke a license is appealable to the City Manager and must be filed with the City Clerk within 10 days of mailing of the Administrator's notice of revocation. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the City Manager is not available for a revocation made pursuant to subsection D. The date, time, and place of appeal hearings shall be provided in writing to the tobacco retailer with at least 10 days' notice and copies of hearing rules. If the tobacco retailer fails to present evidence establishing that tobacco retailer is entitled to retain the license, the City Manager shall uphold the revocation and give written notice to the tobacco retailer. Within five days of the mailing of the notice of upheld revocation, the tobacco retailer shall cease operation of the business for which the license was issued.

• D. Revocation of License Wrongly Issued. A tobacco retailer's license shall be revoked if the Administrator 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 Section 5.42.050 existed at the time application was made or at any time before the license issued. The decision by the Administrator shall be the final decision of the City. Such a revocation shall be without prejudice to the filing of a new license application.

• (Ord. 741-10 § 2, 2010; Ord. 919-24, 4/9/2024)

• A. Each incident of violation of this chapter is a misdemeanor. The Department may impose administrative penalties as follows:

  1. For a first violation of this chapter within any five-year period, $250;

  2. For a second violation of this chapter within any five-year period, $500; and

  3. For a third or subsequent violation of this chapter within any five-year period, $1,000.

• B.

  • Civil Enforcement by the City.

  1. Fines. Violations of this chapter are subject to a civil action brought by the City of Union City, punishable by a civil fine not less than $250 and not exceeding $1,000 per violation.

  2. Injunctions, Nuisance Abatement, and Code Enforcement. 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. Where the City pursues a civil action to remedy a violation of this chapter, the prevailing party shall be entitled to recovery of attorneys fees if the City elects, at the beginning of that action, to seek recovery of its own attorneys' fees pursuant to Government Code Section 38773.5 as currently drafted or as amended.

• C. General Provisions.

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

  2. Violations. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter. A violation exists for each day on which a tobacco product is offered for sale in violation of this chapter. A violation also exists for each individual retail tobacco product that is distributed, sold, or offered for sale in violation of this chapter.

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

  4. No Testimony for Persons Under 18. 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.

• (Ord. 741-10 § 2, 2010; Ord. 791-13 Exh. A § 6, 2013; Ord. 919-24, 4/9/2024)