Chapter 7.60
REGULATING THE SALE OF TOBACCO PRODUCTS
Sections:
7.60.020 Requirement for permit.
7.60.040 Application, issuance, and renewal procedure.
7.60.070 Permit is nontransferable.
7.60.080 Suspension of permit.
7.60.100 Limit on eligibility for a tobacco retailer permit.
7.60.110 Tobacco samples and vending machines prohibited.
7.60.120 Sale or offer for sale of flavored tobacco products prohibited.
7.60.130 Enforcement of applicable law.
7.60.140 Authorized enforcement by San Mateo County personnel.
7.60.010 Title.
This chapter shall be known as the “Regulating Tobacco Retailers Licensing, Prohibiting Tobacco Sales at Pharmacies and in Vending Machines, and Prohibiting the Sale of Flavored Tobacco Ordinance.” (Ord. C-2018-05 §2(Att. A)(part), 2018).
7.60.020 Requirement for permit.
It shall be unlawful for any retailer, individual, or entity to sell or offer for sale any tobacco products without first obtaining and maintaining a valid tobacco retailer’s permit from San Mateo County for each location where such sales are conducted. Permits are valid for one year and shall be renewed annually. (Ord. C-2018-05 §2(Att. A)(part), 2018).
7.60.030 Definitions.
The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section.
A. “Characterizing flavor” means a distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. “Characterizing flavor” includes, but is not limited to, tastes or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. 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. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a characterizing flavor.
B. “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.
C. “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.
D. “Distinguishable” means perceivable by either the sense of smell or taste.
E. “Flavored tobacco product” means any tobacco product that contains a constituent that imparts a characterizing flavor.
F. “Labeling” means written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.
G. “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.
H. “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.
I. “Tobacco paraphernalia” means any item designed or marketed for the consumption, use, or preparation of tobacco products.
J. “Tobacco product” as used in this chapter shall have the meaning given in Section 7.50.030.
K. “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. C-2018-05 §2(Att. A)(part), 2018).
7.60.040 Application, issuance, and renewal procedure.
A. Application for a tobacco retailer’s permit shall be submitted in the name of the entity or person proposing to conduct retail tobacco sales and shall be signed by such person or an authorized agent thereof. All applications shall be submitted on a form supplied by the environmental health division of the San Mateo County health system (hereinafter referred to in this chapter as the environmental health division) and contain the following information:
1. The name, address, and telephone number of the applicant;
2. The business name, address, and telephone number of each location where tobacco is retailed; and
3. Such other information as the director of the environmental health division or his or her designee determines is necessary for implementation of the ordinance codified in this chapter.
B. Applicants for renewal must follow the application procedures set forth in subsection A of this section. A renewal for a tobacco retailer’s permit will be denied if the application is for a person or location for which a suspension is in effect and/or if there are any outstanding fines issued by the San Mateo County environmental health division or the city of Half Moon Bay. (Ord. C-2018-05 §2(Att. A)(part), 2018).
7.60.050 Display of permit.
Upon receipt of an application for a tobacco retailer’s permit, the director or his or her designee shall issue a permit which must be prominently displayed at each location where tobacco retail sales are conducted. (Ord. C-2018-05 §2(Att. A)(part), 2018).
7.60.060 Fees for permit.
The fee for a tobacco retailer’s permit shall reflect the county’s costs of processing the permit and regulating compliance with this chapter and shall be contained in San Mateo County Code Section 5.64.070. (Ord. C-2018-05 §2(Att. A)(part), 2018).
7.60.070 Permit is nontransferable.
Tobacco retailer’s permits are nontransferable as between entities, retailers, individuals, locations or otherwise. (Ord. C-2018-05 §2(Att. A)(part), 2018).
7.60.080 Suspension of permit.
A. Grounds for Suspension. A tobacco retailer’s permit may be suspended, as set forth below in subsection B of this section, by the director of the environmental health division or his or her designee upon a finding, after notice and opportunity to be heard, that either of the following occurred:
1. After the permit was issued, it was determined that the application for the permit is incomplete or inaccurate.
2. The permittee or his or her agent has violated any provision of this chapter or any federal or state tobacco-related law.
B. Time Period of Suspension of Permit.
1. Upon the first time that the director of the environmental health division or his or her designee makes the finding that either subsection (A)(1) or (A)(2) of this section has occurred, the permit to sell tobacco products shall be suspended for up to thirty days.
2. Upon the second time that the director of the environmental health division or his or her designee makes the finding set forth in subsection (A)(1) or (A)(2) of this section within twenty-four months of the first determination, the permit to sell tobacco products shall be suspended for no less than thirty days and up to ninety days.
3. Upon the third and each subsequent time that the director of the environmental health division or his or her designee makes the finding set forth in subsection (A)(1) or (A)(2) within twenty-four months of a prior determination, the permit to sell tobacco products shall be suspended for no less than ninety days and up to one year.
C. Effective Date of Suspension.
1. If the director of the environmental health division or his or her designee makes oral findings and issues an order of suspension at the hearing, the suspension will be effective ten days from the date of the hearing, unless a timely appeal is filed in accordance with subsection D of this section.
2. If the director of the environmental health division or his or her designee makes written findings and issues an order of suspension by certified mail after the hearing, the suspension will be effective fifteen days from the date appearing on the notice of that finding and order of suspension, unless a timely appeal is filed in accordance with subsection D of this section.
D. Appeal of Suspension.
1. The decision of the director of the environmental health division or his or her designee is appealable to the San Mateo County licensing board.
2. An appeal must be in writing, be addressed to the director of the environmental health division and be hand-delivered to the offices of the division of environmental health.
3. An appeal must be received by the division of environmental health before the effective date of suspension provided by subsection (C)(1) or (C)(2) of this section in order to be considered.
4. The filing of a timely appeal will stay a suspension pending a decision on the appeal by the San Mateo County licensing board.
5. The decision of the San Mateo County licensing board shall be a final administrative order, with no further administrative right of appeal. (Ord. C-2018-05 §2(Att. A)(part), 2018).
7.60.090 Administrative fine.
A. Grounds for Fine. A fine may be imposed upon findings made by the director of the environmental health division, or his or her designee, that any retailer, individual, or entity who is an owner of a retail establishment:
1. Does not have a valid tobacco retailer’s permit; and
2. Offers for sale any tobacco product or paraphernalia.
B. Amount of Fine. Upon findings made under subsection A of this section, the retailer, individual, or entity who is an owner of a retail establishment shall be subject to an administrative fine as follows:
1. A fine not exceeding one hundred dollars for a first violation.
2. A fine not exceeding two hundred dollars for a second violation.
3. A fine not exceeding five hundred dollars for the third and subsequent violations.
4. Each day that tobacco products are offered for sale without a permit shall constitute a separate violation. A finding of “offering for sale” will be made if these tobacco products are actually sold and/or displayed in the retail establishment.
C. Fine Procedures. Notice of the fine shall be served on the retailer, individual, or entity who is owner of the establishment by certified mail. The notice shall contain an advisement of the right to request a hearing before the director of the environmental health division or his or her designee contesting the imposition of the fine. Said hearing must be requested within ten days of the date appearing on the notice of the fine. The decision of the director of the environmental health division shall be a final administrative order, with no administrative right of appeal.
D. Failure to Pay Fine. If said fine is not paid within thirty days from the date appearing on the notice of the fine or of the notice of determination of the director of the environmental health division or her or his designee after the hearing, the fine shall be referred to a collection agency within or external to the county. In addition, any outstanding fines must be paid prior to the issuance of any permit by the San Mateo County health system environmental health division or the city of Half Moon Bay. (Ord. C-2018-05 §2(Att. A)(part), 2018).
7.60.100 Limit on eligibility for a tobacco retailer permit.
A. No new tobacco retailer permit may be issued to a pharmacy.
B. No existing tobacco retailer permit may be renewed by a pharmacy.
C. This section shall become operative on April 1, 2019. (Ord. C-2018-05 §2(Att. A)(part), 2018).
7.60.110 Tobacco samples and vending machines prohibited.
A. No tobacco product may be sold, offered for sale, or distributed by or from a vending machine or other appliance, or any other device designed or used for vending purposes.
B. No person shall knowingly distribute or furnish without charge, or cause to be furnished without charge to the general public, cigarettes or other tobacco products, or coupons for cigarettes or other tobacco products, at any event open to the public, or in any public place, including, but not limited to, any right-of-way, mall or shopping center, park, playground, and any other property owned by the city, any school district, or any park district. (Ord. C-2018-05 §2(Att. A)(part), 2018).
7.60.120 Sale or offer for sale of flavored tobacco products prohibited.
A. The sale or offer for sale, by any person or tobacco retailer of any flavored tobacco product, is prohibited and no person or tobacco retailer shall sell, or offer for sale, any flavored tobacco product.
B. 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.
C. This section shall become operative on April 1, 2019. (Ord. C-2018-05 §2(Att. A)(part), 2018).
7.60.130 Enforcement of applicable law.
If an agent or employee of the tobacco retailer violates any provisions of this chapter or any federal or state tobacco-related law, the tobacco retailer shall immediately report the violation to the environmental health division. (Ord. C-2018-05 §2(Att. A)(part), 2018).
7.60.140 Authorized enforcement by San Mateo County personnel.
The county of San Mateo, its officers, employees and agents are hereby authorized to enforce this chapter on behalf of the city, within the jurisdiction areas of this city. Such enforcement authority includes, but is not limited to, the collection of fees and fines, expending such revenue in the enforcement of the tobacco retailer permit, holding hearings, suspending permits and issuing administrative fines. (Ord. C-2018-05 §2(Att. A)(part), 2018).