Chapter 5.114 — TOBACCO RETAILERS

This chapter shall be known as the "Tobacco Retailer Ordinance" of the City of West Hollywood.

(Ord. 16-991 § 1, 2016)

The failure of tobacco retailers to comply with all tobacco control laws, particularly laws prohibiting the sale of tobacco products to minors, presents an imminent threat to the public health, safety, and welfare of the residents of the city. In enacting this chapter, it is the intent of the City Council to ensure that retailers comply with tobacco control laws and business standards of the city, and to protect the health, safety, and welfare of city residents by encouraging responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those involving the sale or distribution of tobacco and nicotine products to minors. There is no intent, however, to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein. (Ord. 16-991 § 1, 2016)

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

"Advertising display" means any sign, billboard, signboard, poster, placard, pennant, banner, graphic display, mural, or similar device that is used to advertise a product.

"Characterizing flavor" means a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice; provided, however, that 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.

"Cigar" means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than three pounds per thousand.

"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.

"Consumer" means a person who purchases a tobacco product for consumption and not for sale to another.

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

"Distinguishable" means perceivable by an ordinary consumer by either the sense of smell or taste.

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City of West Hollywood, CA § 5.114.030

WEST HOLLYWOOD CODE

§ 5.114.030

"Electronic smoking device" means an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such device, whether or not sold separately. "Electronic smoking device" includes any such 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.

"Enforcement official" means any member of the West Hollywood Code Compliance Division, the Alcohol Beverage Control Department, and the Los Angeles County Sheriff's Department, or designees.

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

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

"Listed price" or "non-discounted price" means the higher of the price listed for a tobacco product on its package or the price listed on any related shelving, posting, advertising or display at the place where the tobacco products are sold or offered for sale plus all applicable taxes if such taxes are not included in the stated price, and before the application of any discounts or coupons.

"Little cigar" means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than three pounds per thousand. "Little cigar" includes, but is not limited to, any tobacco product known or labeled as "small cigar" or "little cigar."

"Manufacturer" means any person, including any re-packer or re-labeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution to the United States.

"Package" means a pack, box, carton, or container of any kind, or if no other container, any wrapping, including cellophane, in which tobacco products are offered for sale, sold, or otherwise distributed to consumers.

"Person" means any individual, partnership, co-partnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.

"Retail price" means the price actually paid by the consumer for a tobacco product.

"Sale" or "sell" means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.

"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 retailer's agent or employee. A vending machine is a form of self-service display.

"Sign" shall have the same meaning as the definition of that word in Section 19.90.020 of this code.

"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.

"Tobacco paraphernalia" means any item designed for the consumption, use, or preparation of

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City of West Hollywood, CA

§ 5.114.030 BUSINESS LICENSES, REGULATIONS AND PERMITS

§ 5.114.040

tobacco products.

"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, pipe tobacco, snuff, snus;

2. Any electronic smoking device, with or without nicotine;

• Any flavored tobacco product;

4. Notwithstanding any provision of subsections (1) through (3) 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 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.

"Tobacco product shop" means any tobacco retailer for which the principal or core business is selling tobacco products, tobacco paraphernalia, or both, as evidenced by any of the following: twenty percent or more of floor or display area is devoted to tobacco products, tobacco paraphernalia, or both; seventy-five percent or more of gross sales receipts are derived from tobacco products, tobacco paraphernalia, or both; or fifty percent or more of completed sales transactions include tobacco products or tobacco paraphernalia.

"Tobacco retailer" means: (1) 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); or (2) a person with an ownership or managerial interest in the business. An ownership interest shall be deemed to exist when a person has ten percent or greater interest in stock, assets of 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. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

"Youth-populated area" means:

1. A private or public kindergarten, elementary, middle, junior high, or high school; a library open to the public; a motion picture theater; a game arcade; a playground or sandbox area open to the public, as defined by California Health and Safety Code Section 104495;

2. A youth center/facility where children, ages six to seventeen, inclusive, come together for programs and activities and where such center has identified itself to the city;

3. A licensed child-care facility or preschool as defined in California Health and Safety Code Section 1596.78; or

4. A specified community care facility, as defined in California Health and Safety Code Section 1530.7.

• (Ord. 16-991 § 1, 2016; Ord. 21-1136 §§ 1, 2, 2021)

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City of West Hollywood, CA

WEST HOLLYWOOD CODE

§ 5.114.040

§ 5.114.050

• a. No license may be issued under this chapter to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.

• b. No license may be issued under this chapter to authorize tobacco retailing at a temporary or recurring temporary event. For example, tobacco retailing at farmers' markets or special events or from mobile carts is prohibited.

• c. No new license may issue to authorize tobacco retailing within six hundred feet of a youthpopulated area as measured by a straight line from the nearest point of the property line of the parcel on which the youth-populated area is located to the nearest point of the property line of the parcel on which the applicant's business is located. This provision shall not apply to:

  1. Any tobacco retailer whose business is operating in compliance with Title 5 of the West Hollywood Municipal Code on May 1, 2016, regardless of any change or transfer of ownership of the business, or establishment of a school after May 1, 2016, within six hundred feet of the business; provided that if a tobacco retailer has for any reason an interruption of the continuity of a business for a period in excess of six months, it must comply with the requirements of this chapter in order to reopen for business;

  2. Any tobacco retailer that limits entry to persons younger than the minimum age established by state law for the purchase or possession of tobacco products, including bars and nightclubs, as those terms are defined in Title 19 of this code; and

  3. Hotels that sell tobacco products as part of incidental sales on the premises.

• d. No new license may issue to authorize tobacco product shops within one thousand feet of a youth-populated area as measured by a straight line from the nearest point of the property line of the parcel on which the youth-populated area is located to the nearest point of the property line of the parcel on which the applicant's business is located.

• (Ord. 16-991 § 1, 2016)

The following operating requirements shall be deemed conditions of any tobacco retailer license issued pursuant to the provisions of Title 5 of this code, and failure to comply with any such requirement shall be grounds for suspension, revocation, and/or the imposition of administrative penalties in accordance with Chapter 1.08 of this code. The provisions of this chapter are intended to provide a minimum level of public health, safety and welfare protection at businesses engaging in tobacco retailing. Nothing in this chapter is intended nor shall prevent the city from imposing more stringent, site-specific operating requirements and conditions through other applicable permitting and approval processes, including, without limitation, environmental or land use approvals or permits. In the event of a conflict between an operating regulation set forth in this chapter and a requirement or condition contained in any other applicable permit or approval, the more stringent or restrictive requirement or condition shall apply.

• a. Retail Sales to Persons Younger Than the Minimum Age Under State Law Prohibited. No person engaged in tobacco retailing shall sell or offer to sell, give or offer to give, or transfer or offer to transfer any tobacco product to any person who is younger than the legal age, under state law, to purchase and possess tobacco products. This subsection does not

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City of West Hollywood, CA

BUSINESS LICENSES, REGULATIONS AND PERMITS

§ 5.114.050

§ 5.114.050

apply to active duty military personnel who are eighteen years of age or older. An identification card issued by the United States Armed Forces shall be used as proof of age for this purpose.

• b. Positive Identification Required. No tobacco retailer shall sell or transfer a tobacco product to any person who appears to be under the age of thirty years old without first examining the identification of that person to confirm that person is at least the minimum age under state law to purchase and possess the product. The tobacco retailer or agent thereof shall refuse the sale or transfer of any tobacco product to any person who appears to be under the age of thirty years old who fails to present valid, legal photo identification prior to the sale or transfer.

• c. 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.

• d. Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited in any place open to persons younger than the minimum age established by state law for the purchase or possession of tobacco products. It shall be unlawful to locate, install, maintain, use or permit the location, installation, keeping or maintenance on any premises, open to persons younger than the minimum age established by state law for the purchase or possession of tobacco products, any self-service display which dispenses cigarettes or tobacco products.

• e.

Signage.

1. In the course of tobacco retailing or in the operation of a business or maintenance of a 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 cover more than twenty-five percent of the area of each window and clear door of the location with signs of any sort, excluding signage mandated by local, state or federal law. For the purposes of this subsection, the area covered shall be computed to include: (i) all clear areas within signs; and (ii) signs that are not attached to windows or clear doors, but are visible from exterior public rights-of-way in the same manner as if they were attached to windows or clear doors.

   2. All signs shall be placed and maintained to ensure law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from exterior public rights-of-way or from the entrance. However, this subsection shall not apply to premises where there are no windows, or where the design or location of windows or landscaping precludes a view of the interior of the premises from exterior public rights-of-way or from the entrance.

• f. Packaging and Labeling. No tobacco retailer shall sell any tobacco product to any consumer unless such product: (1) is sold in the original manufacturer's packaging intended for sale to consumers; and (2) conforms to all applicable federal labeling requirements. Every tobacco retailer shall maintain on the premises the original labeling and packaging provided by the manufacturer for all tobacco products that are sold or offered for sale by the establishment separately from the original packaging designed for retail sale to the consumer. The original labeling and packaging from which the contents are sold separately shall be maintained during such time as the contents of the package are offered for sale, and may be disposed of upon the sale of the entire contents of such package.

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City of West Hollywood, CA

WEST HOLLYWOOD CODE

§ 5.114.050

§ 5.114.060

• g. Minimum Package Size for Little Cigars. No tobacco retailer shall sell to a consumer any little cigar unless it is sold in a package of at least twenty little cigars.

• h. Compliance with State-Mandated Sign Requirements. Tobacco retailers shall post and maintain all signage required by the California Labor Code, California Business and Professions Code, California Penal Code, and any other applicable federal, state, or local law.

• i. False and Misleading Advertising Prohibited. A tobacco retailer who does not have a valid license pursuant to this chapter or whose license has been suspended or revoked shall not display any item or advertisement relating to tobacco products that promotes the sale or distribution of such products from the premises or that could lead a reasonable consumer to believe that tobacco products can be obtained at that location. Such display or advertisement in violation of this provision shall constitute tobacco retailing without a valid license.

en suspended or revoked shall not display any item or advertisement relating to tobacco products that promotes the sale or distribution of such products from the premises or that could lead a reasonable consumer to believe that tobacco products can be obtained at that location. Such display or advertisement in violation of this provision shall constitute tobacco retailing without a valid license.

• j. Prohibition of the Sale of Flavored Tobacco Products. No tobacco retailer shall sell any flavored tobacco product, except for flavored shisha tobacco for use in a hookah is permitted. 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.

• k. Prohibition of Tobacco Coupons, Discounts, and Cross-Promotions. No tobacco retailer shall:

  1. Accept or redeem, or offer to accept or redeem, a coupon to allow a consumer to purchase a tobacco product at a retail price below the listed or non-discounted price;

  2. Allow a consumer to purchase a tobacco product at a retail price below the listed or non-discounted price;

  3. Accept or redeem, or offer to accept or redeem, a coupon to allow a consumer to purchase any tobacco product through a multi-package discount (e.g., the sale of three packs of cigarettes for less than the combined price of each pack), or otherwise sell any tobacco product to a consumer for less than the listed price in consideration for the purchase of any combination of tobacco product or item; or

  4. Provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.

• l. Exception for Legal Non-Conforming Uses. The restrictions on the sale of flavored tobacco products set forth in subsection (j) shall not apply to the hookah lounge and restaurant located at 8828 Sunset Boulevard, provided that all flavored tobacco products are consumed onsite. Said business shall be responsible for ensuring that consumers to which it sells a flavored tobacco product consume the products onsite. This exception shall become void in the event the business's legal non-conforming use rights to operate as a hookah lounge terminate pursuant to Sections 7.08.030.e.4 and 19.72.050 of this code.

• (Ord. 16-991 § 1, 2016; Ord. 21-1136 § 3, 2021)

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City of West Hollywood, CA

BUSINESS LICENSES, REGULATIONS AND PERMITS

§ 5.114.060

§ 5.114.080

• a. Compliance checks shall be conducted so as to allow enforcement officials to determine, at a minimum, if a tobacco retailer is complying with laws regulating youth access to tobacco. Enforcement officials may also conduct compliance checks to determine compliance with other laws applicable to tobacco retailing.

• b. Enforcement officials shall inspect each tobacco retailer at least two times per twelvemonth period. Nothing in this subsection shall create a right of action in any licensee or other person against the city or its agents.

• c. Enforcement officials (or designees thereof) may promulgate and adopt policies, procedures and/or guidelines for the participation of persons under the minimum legal age for tobacco purchases in compliance checks pursuant to this chapter ("youth decoys").

• d. The city shall not enforce any law establishing a minimum age for tobacco purchases or possession against a youth decoy if the potential violation occurs when:

  1. The youth decoy is participating in a compliance check supervised by an enforcement official or other agency;

2. The youth decoy is acting as an agent of the enforcement official or other agency.

(Ord. 16-991 § 1, 2016)

Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this section are subject to seizure by the City Manager, or designee, and shall be forfeited after the person, 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 City Manager, or designee, may be appealed in the same manner as a challenge of an administrative citation, pursuant to the provisions of Chapter 1.08 of this code. 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. (Ord. 16-991 § 1, 2016)

The City Manager is hereby authorized to make and promulgate any rules and regulations necessary to implement the requirements of this chapter. The rules and regulations shall be in addition to the requirements set forth in this chapter. In the event of a conflict between a provision set forth in this chapter and a rule or regulation promulgated by the City Manager pursuant to this section, the more stringent or restrictive requirement or condition shall apply. (Ord. 16-991 § 1, 2016)

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City of West Hollywood, CA § 5.116.010

BUSINESS LICENSES, REGULATIONS AND PERMITS

§ 5.116.040