CHAPTER 42.
TOBACCO RETAILER LICENSING REQUIREMENTS1
Sections:
5-42.03 Tobacco Retailer License Required
5-42.05 Issuance and Renewal of License
5-42.06 License Nontransferable
5-42.09 Limits on Eligibility for a Tobacco Retailer License
5-42.10 Other Requirements and Prohibitions
5-42.12 Suspension and Revocation of License Penalties
5-42.13 Review of Applications – Appeal of Denial and Suspension
5-42.14 Tobacco Retailing Without a License
5-42.15 Enforcement and Penalties
5-42.01 Purpose and Intent.
The failure of tobacco retailers to comply with all tobacco control laws, particularly the sale of tobacco products, including flavored tobacco and electronic cigarette products, to minors, presents an imminent threat to the public health, safety and welfare. A local licensing program for tobacco retailers is intended to ensure that tobacco retailers comply with tobacco control laws and business standards of the City and to protect the health, safety and welfare of those persons who reside in, work in and visit this City. State law explicitly permits cities to enact local tobacco retail licensing ordinances and allows for the suspension or revocation of a local license for a violation of any State tobacco control law. A requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute tobacco products to adults but will allow the City to regulate the operation of lawful businesses to discourage violations of Federal, State and local tobacco-related laws. The City has a substantial interest in promoting compliance with Federal, State and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products, including flavored tobacco and electronic cigarette products, by minors; in promoting compliance with laws prohibiting sales of tobacco products to minors; and in protecting children from being lured into illegal activity through the misconduct of adults. This chapter is adopted to encourage responsible tobacco retailing and to discourage violation of tobacco-related laws, especially those that prohibit or discourage the sale or distribution of tobacco products and electronic cigarette products to minors. This chapter does not expand or reduce the degree to which the acts regulated by Federal or State law are criminally proscribed or alter the penalties provided by such laws. Nothing in this chapter shall be construed to penalize the purchase, use or possession of a tobacco product by any person not engaged in the retail of tobacco.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.02 Definitions.
For the purposes of this chapter, unless otherwise apparent from the context, certain words and phrases used in this chapter are defined as follows:
(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 (2) informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of violations of this chapter is not an arm’s length transaction.
(b) “Cigar,” as defined in Section 5-29.02.
(c) “Cigarette,” as defined in Section 5-29.02.
(d) “Compliance check” means systems that the Department uses to investigate and ensure that tobacco retailers are following and complying with the requirements of this chapter. A “compliance check” shall involve the use of persons between the ages of eighteen (18) and twenty (20) who purchase or attempt to purchase tobacco products. A compliance check may also be conducted by the Department or other units of government for educational, research, and training purposes or for investigating or enforcing Federal, State, or local laws and regulations relating to tobacco products.
(e) “Consumer” means a person who purchases a tobacco product for consumption and not for sale to another.
(f) “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.
(g) “Delivery sale” means the sale of any tobacco product to any person for personal consumption and not for resale when the sale is conducted by any means other than an in-person, over-the-counter sales transaction in a tobacco retail establishment. Delivery sale includes the sale of any tobacco product when the sale is conducted by telephone, other voice transmission, mail, the internet, or app-based service. Delivery sale includes delivery by licensees or third parties by any means, including curbside pick-up.
(h) “Department” means the City of Emeryville Police Department or other City department designated by the City Manager as responsible for administering and enforcing this section.
(i) “Electronic smoking device” as defined in Section 5-29.02.
(j) “Flavored tobacco product” means any tobacco product that:
(1) Imparts 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) Imparts a heating, cooling, or numbing sensation distinguishable by an ordinary consumer during the consumption of such tobacco product; or
(3) Is prohibited under California Health and Safety Code Section 104559.5(b)(2).
(k) “Full retail price” means the price listed for a tobacco product on its packaging or on any related shelving, advertising, or display where the tobacco product is sold or offered for sale, plus all applicable taxes and fees if such taxes and fees are not included in the listed price.
(l) “Labeling” means written, printed, or graphic matter upon any tobacco product or any of its packaging, or accompanying such tobacco product.
(m) “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.
(n) “Package” or “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.
(o) “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.
(p) “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 ten percent (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.
(q) “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.
(r) “Self-service display” means the open display or storage of tobacco product 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.
(s) “Tobacco paraphernalia” means any item designed or marketed for the consumption, use or preparation of tobacco products.
(t) “Tobacco product” as defined in Section 5-29.02. “Tobacco product” includes flavored tobacco products.
(u) “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, or who distributes free or low-cost samples of 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, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.
(v) “Youth-oriented facility” means a location or parcel in the City that is occupied by:
(1) A private or public kindergarten, elementary, middle, junior high, or high school;
(2) A library open to the public;
(3) A playground open to the public;
(4) A youth center, defined as a facility where children, ages six (6) to seventeen (17), inclusive, come together for programs and activities;
(5) A recreation facility open to the public, defined as an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes;
(6) A park open to the public or to all the residents of a private community; or
(7) A licensed child-care facility or preschool other than a small-family day care home or a large-family day care home as defined in California Health and Safety Code Section 1596.78.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.03 Tobacco Retailer License Required.
(a) It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer license pursuant to this section for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer license is a public nuisance.
(b) No license may be issued to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.
(c) The issuance of a tobacco retailer license does not exempt any business that is subject to the Smoking Pollution Control ordinance pursuant to Chapter 29 of Title 5.
(d) 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 and tobacco paraphernalia out of public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a license under Section 5-42.13.
(2) Shall not display any advertisement relating to tobacco products or tobacco paraphernalia 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.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.04 Application Procedure.
Application for a tobacco retailer license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof. All applications shall be submitted on a form supplied by the Emeryville Police Department and shall contain the following information:
(a) The name, address, and telephone number of each proprietor.
(b) The business name, address, and telephone number of the single fixed location for which a license is sought.
(c) 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 (b) of this section.
(d) Proof that the location for which a tobacco retailer license is sought has been issued a valid State tobacco retailer license by the California Department of Tax and Fee Administration.
(e) Proof that the location for which a tobacco retail license is sought has been issued a major use permit by the Emeryville Planning Commission, if such a permit is required by the City, pursuant to Sections 9-2.701 and 9-3.202.
(f) Such other information as the Department deems necessary for the administration or enforcement of this section.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.05 Issuance and Renewal of License.
(a) Within thirty (30) days of the Department’s receipt of an application for a tobacco retailer license and the license fee required by this section, the Department shall issue a license unless a preponderance of the evidence demonstrates that one (1) or more of the following reasons for denial exists:
(1) The information presented in the application is incomplete, inaccurate, or false.
(2) The application seeks authorization for tobacco retailing by a proprietor or at a location for which a revocation is in effect pursuant to Section 5-42.11.
(3) The application seeks authorization for tobacco retailing that is unlawful pursuant to this Code, or that is unlawful pursuant to any other local, State or Federal law.
(b) A license shall be valid for one (1) year after the date of issuance and must be renewed prior to the expiration of the term.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.06 License Nontransferable.
A tobacco retailer license is nontransferable. In the event a person to whom a license has been issued changes business location or sells the business referenced in that person’s license, that person must apply for a new license prior to acting as a tobacco retailer at the new location. The transferee of the licensee must apply for a license in the transferee’s name before acting as a tobacco retailer. Any license issued pursuant to this section shall expire on the date the previous license for the business or person would have expired.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.07 Fees for License.
The fee to issue or to renew a tobacco retailer license shall be established in the Master Fee Schedule adopted by resolution of the City Council. The fee shall reflect the actual cost of processing the license, including inspection of the tobacco retailer’s business premises and implementation and enforcement of the licensing program.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.08 Display of License.
Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.09 Limits on Eligibility for a Tobacco Retailer License.
(a) Pharmacies. No license may be issued, and no existing license may be renewed, to authorize tobacco retailing in a pharmacy.
(b) Proximity to Youth-Oriented Facilities. No license may issue, and no existing license may be renewed, with an exception of subsection (d) of this section, to authorize tobacco retailing within one thousand feet (1,000') of a youth-oriented facility as measured by a straight line from the nearest point of the property line of the parcel on which the youth-oriented facility is located to the nearest point of the property line of the parcel on which the applicant’s business is located.
(c) Proximity to Other Tobacco Retailers. No license may issue, and no existing license may be renewed, with an exception of subsection (d) in this section, to authorize tobacco retailing within five hundred feet (500') 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.
(d) Existing Tobacco Retailers. A tobacco retailer selling tobacco products operating lawfully on the date the ordinance codified in this chapter is operative, may receive or renew a license so long as all of the following conditions are met:
(1) The license is timely obtained and is renewed without lapse or revocation;
(2) The tobacco retailer is not closed for business or otherwise suspends tobacco retailing for more than sixty (60) consecutive days;
(3) The tobacco retailer does not substantially change the business premises or business operation. A substantial change to the business operation includes, but is not limited to, the transfer of a location to a new proprietor(s); and
(4) The tobacco retailer retains the right to operate under other applicable laws.
(e) Change of Business Dispute. If the City determines that a tobacco retailer has substantially changed their business premises or operation and the tobacco retailer disputes this determination, the tobacco retailer bears the burden of proving by a preponderance of the evidence that such change(s) do not constitute a substantial change.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.10 Other Requirements and Prohibitions.
(a) Positive Identification Required. No person engaged in tobacco retailing shall sell a tobacco product or tobacco paraphernalia to another person without first verifying, by means of government-issued photographic identification, that the recipient is at least twenty-one (21) years of age.
(b) 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.
(c) On-Site Sales. The delivery sale of tobacco products is prohibited in the City. All sales of tobacco products must be conducted in person in a licensed location. It shall be a violation of the Emeryville Municipal Code for any person to engage in the delivery sale of tobacco products or to knowingly or recklessly sell or provide tobacco products to any person that intends to engage in the delivery sale of the tobacco product in the City.
(d) Self-Service Displays Prohibited. No tobacco retailer shall display tobacco products or tobacco paraphernalia by means of a self-service display or engage in tobacco retailing by means of a self-service display.
(e) 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 has been issued, it shall be a violation of this chapter for a licensee, or any of the licensee’s agents or employees, to:
(1) Violate any local, State, or Federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.
(2) Violate any local, State, or Federal law regulating exterior, storefront, window or door signage.
(3) Refuse to cooperate with any compliance check conducted by the Department.
(f) Flavored Tobacco Product Sales Prohibited. No tobacco retailer, nor any of the retailer’s agents or employees, shall sell or offer for sale, or possess with intent to sell or offer for sale, any flavored tobacco product.
(g) Sale of Electronic Smoking Devices Prohibited. No person may sell or possess with the intent to sell any electronic smoking device within the City.
(h) 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.
(i) Display of Price. The price of each tobacco product offered for sale shall be clearly and conspicuously displayed to indicate the price of the product.
(j) Prohibition of Tobacco Coupons and Discounts. No tobacco retailer shall:
(1) 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;
(2) Sell any tobacco product to a consumer through a multiple-package 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 any other item; or
(3) Provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.
(k) Minimum Package Size for Cigars. No retailer shall sell any cigar unless it is sold in a package of at least twenty (20) cigars; provided, however, that this subsection does not apply to a cigar that has a price of at least ten dollars ($10.00) per cigar, including all applicable fees and taxes.
(l) Minimum Prices for Cigarettes and Cigars.
(1) No tobacco retailer shall sell to a consumer:
(i) Cigarettes at a price that is less than ten dollars ($10.00) per package of twenty (20) cigarettes, including all applicable fees and taxes;
(ii) Cigars at a price that is less than ten dollars ($10.00) per package of twenty (20) cigars, including all applicable fees and taxes.
(2) The minimum prices established in this section shall be adjusted annually (percent change in the annual average, not seasonally adjusted) in proportion with the Consumer Price Index, all urban consumers for all items for the San Francisco-Oakland-Hayward statistical area as reported by the United States Bureau of Labor Statistics or any successor to that Index.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.11 Compliance Monitoring.
(a) Compliance with this chapter shall be monitored by the Department. In addition, the City may designate any number of additional persons to monitor compliance with this chapter.
(b) The Department shall conduct at least one compliance check every twelve (12) month period. A compliance check must also involve verification that the tobacco retailer is in compliance with all other requirements of this chapter.
(c) If the Department determines that a tobacco retailer has not complied with the requirements of this chapter following a compliance check, a follow-up compliance check shall be conducted within ninety (90) days. The cost for the follow-up compliance check shall be paid by the tobacco retailer within thirty (30) days after the Department has sent an invoice to the tobacco retailer requesting payment.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.12 Suspension and Revocation of License Penalties.
(a) The following penalties apply if a tobacco retailer is notified by the Department that their license is being suspended or revoked for a violation of applicable requirements set forth in this chapter:
(1) Upon a finding of a first violation of this chapter at a location within any sixty (60) month period, the license shall be suspended for thirty (30) days and subject to an administrative fine of one hundred dollars ($100.00).
(2) Upon a finding of a second violation of this chapter at a location within any sixty (60) month period, the license shall be suspended for ninety (90) days. If the violation occurs within five (5) years of the first violation, the tobacco retailer shall be subject to an administrative fine of two hundred dollars ($200.00).
(3) Upon a finding of a third violation of this chapter at a location within any sixty (60) month period, the license shall be suspended for one (1) year. If the violation occurs within five (5) years of the second violation, the tobacco retailer shall be subject to an administrative fine of five hundred dollars ($500.00).
(4) Upon a finding of four (4) or more violations of this section at a location within any sixty (60) month period, no new license may be issued for the location until five (5) years have passed from the date of revocation.
(b) Revocation of License Issued in Error. A tobacco retailer license shall be revoked if the Department finds, after the licensee is afforded reasonable notice and an opportunity to be heard, that one (1) or more of the bases for denial of a license under Section 5-42.05 existed at the time application was made or at any time before the license issued. Notice and appeal of the revocation shall be conducted in accordance with this chapter. The revocation shall be without prejudice to the filing of a new license application.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.13 Review of Applications – Appeal of Denial and Suspension.
(a) Within fifteen (15) days after the Department serves notification of denial or suspension, an applicant may appeal the denial by notifying the City Clerk in writing of the appeal, the reasons for the appeal, and paying any applicable fees.
(b) The City Clerk shall set a hearing on the appeal and shall fix a date and time certain, within thirty (30) days after the receipt of the applicant’s appeal, unless the City and the applicant agree to a longer time, to consider the appeal. The City Clerk shall provide notice of the date, time and place of hearing, at least seven (7) days prior to the date of the hearing.
(c) The City Manager shall appoint a Hearing Officer to hear the appeal and determine the order of procedure, and rule on all objections to admissibility of evidence. The applicant and the Department shall each have the right to submit documents, call and examine witnesses, cross-examine witnesses and argue their respective positions. The proceeding shall be informal, and the strict rules of evidence shall not apply, and all evidence shall be admissible which is of the kind that reasonably prudent persons rely upon in making decisions.
(d) The Hearing Officer shall issue a written decision within fifteen (15) days after the close of the hearing. The decision of the Hearing Officer shall be final.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.14 Tobacco Retailing Without a License.
In addition to any other penalty authorized by law, if the Department finds, or if a court of competent jurisdiction determines, based on a preponderance of the 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 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 license for that location as follows:
(a) After a first violation of this section at a location within any sixty (60) month period, no new license may be issued for the person at the location until thirty (30) days have passed from the date of the violation.
(b) After a second violation of this section at a location within any sixty (60) month period, no new license may be issued for the person at the location until ninety (90) days have passed from the date of the violation.
(c) After a third or subsequent violation of this section at a location within any sixty (60) month period, no new license may be issued for the person at the location until five (5) years have passed from the date of the violation.
(d) Upon a finding of four (4) or more violations of this section at a location within any five (5) year period, no new license may issue for the person or the location unless ownership of the business at the location has been transferred in an arm’s length transaction.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.15 Enforcement and Penalties.
(a) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this section shall constitute a violation.
(b) Violations of this chapter are subject to administrative citation under Chapter 7 of Title 1. Each day of engaging in any of the prohibited activities shall constitute a separate violation.
(c) Violations of this section are hereby declared to be public nuisances.
(d) In addition to other remedies provided by this section or by other law, any violation of this section may be remedied by a civil action brought by the City Attorney, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. The remedies provided by this section are cumulative and in addition to any other remedies available at law or in equity. 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.
(e) An action for injunction may be brought in a court of competent jurisdiction by any aggrieved person, or any person or entity that will fairly and adequately represent the interests of the class protected by this section.
(f) For the purposes of the civil remedies provided in this chapter:
(1) Each day on which a tobacco product is distributed, sold, offered for sale, or held with the intent to sell in violation of this chapter will constitute a separate violation of this chapter; and
(2) Each individual tobacco product that is distributed, sold, offered for sale, or held with the intent to sell in violation of this chapter will constitute a separate violation of this chapter.
(g) All licensees are responsible for the actions of their employees relating to the sale, offer to sell, and furnishing of tobacco products at the retail location. The sale of any tobacco product by an employee shall be considered an act of the licensee.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
5-42.16 Exception.
Nothing in this chapter shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing.
(Sec. 2, Ord. 24-005, eff. June 6, 2024)
Code reviser’s note: Ordinance 24-005, Section 5 provides that the provisions in this chapter become operative 90 days following its final passage. The chapter becomes operative August 5, 2024.