Chapter 5.40
TOBACCO RETAILER LICENSE
Sections:
5.40.020 General requirements and prohibitions.
5.40.030 Sale of flavored tobacco products prohibited.
5.40.040 Tobacco product pricing and packaging.
5.40.050 Limits on eligibility for a tobacco retailer license.
5.40.060 Application procedure.
5.40.070 License issuance or denial.
5.40.080 License renewal and expiration.
5.40.090 Licenses not transferable, past violations at retail location.
5.40.100 License conveys a limited, conditional privilege.
5.40.120 Compliance monitoring.
5.40.130 Suspension or revocation of license.
5.40.140 Tobacco retailing without a valid license.
5.40.150 Sale of tobacco products to minors.
5.40.170 Agreement for administration and enforcement.
5.40.190 Construction and severability.
5.40.010 Definitions.
The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:
A. “Arm’s length transaction” means a sale in good faith and for valuable consideration that reflects the fair market value between two informed and willing parties, neither of which is under any compulsion to participate in the transaction.
B. “Child-resistant packaging” means packaging that meets the definition set forth in 16 CFR Section 1700.15(b), as in effect on January 1, 2015, and was tested in accordance with the method described in 16 CFR Section 1700.20, as in effect on January 1, 2015.
C. “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 four and one-half pounds per thousand.
D. “Cigarette” means: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and (2) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described herein.
E. “City manager” means the city manager of the city of Lakeport and designee, and any agency, department, or person designated to enforce or administer the provisions of this chapter pursuant to an agreement approved by the city council.
F. “Compliance checks” means systems the city manager uses to investigate and ensure that tobacco retailers are following and complying with the requirements of this chapter. Compliance checks may involve the use of persons between the ages of eighteen and twenty who purchase or attempt to purchase tobacco products. Compliance checks may also be conducted by the city manager 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.
G. “Day” means a calendar day.
H. “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.
I. “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.
J. “Flavored tobacco product” means any tobacco product that 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 a cooling or numbing sensation distinguishable by an ordinary consumer during the consumption of such tobacco product.
K. “Licensee” means a person granted a tobacco retailer’s license for the location at which tobacco retailing is to occur.
L. “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 four and one-half pounds per thousand. “Little cigar” includes, but is not limited to, tobacco products known or labeled as small cigar, little cigar, or cigarillo.
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. “Movable place of business” means any form of business that is operated out of a kiosk, truck, van, automobile or other type of vehicle or transportable shelter and not a fixed address store front or other permanent type of structure authorized for sales transactions.
O. “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
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 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 has or shares ultimate control over the day-to-day operations of a business.
Q. “Recreation facility” means 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, and includes but is not limited to a gymnasium, playing court, playing field, and swimming pool.
R. “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.
S. “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 face-to-face transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
T. “Smoking” means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated product containing, made, or derived from nicotine, tobacco, marijuana, or other plant, whether natural or synthetic, that is intended for inhalation. “Smoking” includes using an electronic smoking device.
U. “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 to those products listed in subsection (U)(1) or (U)(2) of this section, 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.
V. “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.
W. “Tobacco retailer” means any person who sells, offers for sale, or exchanges 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.
X. “Tobacco retail” or “tobacco retailing” means engaging in the activities of a tobacco retailer. (Ord. 950 §1, 2024)
5.40.020 General requirements and prohibitions.
A. Tobacco Retailer’s License Required. It shall be unlawful for any person to engage in tobacco retailing in the city without first obtaining and maintaining a valid tobacco retailer’s license for each location at which tobacco retailing 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. Smoking Prohibited. Smoking, including smoking for the purpose of sampling any tobacco product, is prohibited within the indoor area of any retail establishment licensed under this chapter. Smoking is also prohibited outdoors within twenty-five feet of any retail establishment licensed under this chapter.
D. Minimum Legal Sales Age. No person engaged in tobacco retailing shall sell a tobacco product to a person under twenty-one years of age.
E. Display of License. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.
F. Positive Identification Required. No person engaged in tobacco retailing shall sell a tobacco product to another person without first verifying by means of government-issued photographic identification that the recipient is at least twenty-one years of age.
G. Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited. All tobacco products must be stored behind the sales counter, in a locked case, in a storage unit, or in another area not freely accessible to the general public.
H. Distance From Youth-Appealing Products. It is unlawful for a tobacco retailer to place or maintain, or cause to be placed or maintained, any displays containing tobacco products within five feet of toys, candy, snacks or non-alcoholic beverages inside a licensed retail establishment.
I. On-Site Sales. All sales of tobacco products shall be conducted in person in the licensed location. It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer’s agents or employees 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. (Ord. 950 §1, 2024)
5.40.030 Sale of flavored tobacco products prohibited.
A. Flavored Tobacco Product Sales Prohibited. It shall be unlawful for any tobacco retailer to sell any flavored tobacco product.
B. Presumptive Flavored Tobacco Product. A public statement or claim made or disseminated by the manufacturer of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such tobacco product, that such tobacco product has a taste or smell other than tobacco shall constitute presumptive evidence that the tobacco product is a flavored tobacco product. (Ord. 950 §1, 2024)
5.40.040 Tobacco product pricing and packaging.
A. Packaging and Labeling. No tobacco retailer shall sell any tobacco product to any consumer unless the tobacco product: (1) is sold in the manufacturer’s packaging intended for sale to consumers; (2) conforms to all applicable federal labeling requirements; and (3) conforms to all applicable child-resistant packaging requirements.
B. Display of Price. The price of each tobacco product offered for sale shall be clearly and conspicuously displayed on the tobacco product or on any related shelving, posting, advertising, or display at the location where the item is sold or offered for sale.
C. Distribution of Tobacco Samples or Promotional Items. It is unlawful for any person to distribute free or nominally priced tobacco products. (Ord. 950 §1, 2024)
5.40.050 Limits on eligibility for a tobacco retailer license.
A. Mobile Vending. No license may issue to authorize tobacco retailing at other than a fixed location. No tobacco retail license will be issued to a movable place of business.
B. Licensed Cannabis Businesses. No license may issue, and no existing license may be renewed, to authorize tobacco retailing at a location licensed for commercial cannabis activity by the state of California. (Ord. 950 §1, 2024)
5.40.060 Application procedure.
A. An application for a tobacco retailer’s 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 city manager.
B. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information shall be revoked pursuant to Section 5.40.130(C). Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer’s license any status or right to act as a tobacco retailer in contravention of any provision of law.
C. Applicant submissions 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 location for which a license is sought.
3. The name and mailing address authorized by each proprietor to receive all communications and notices required by, authorized by, or convenient to the enforcement of this chapter.
4. Proof that the location for which a tobacco retailer’s license is sought has been issued all necessary state and local licenses for the sale of tobacco products.
5. Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter or any other local, state, or federal law governing the sale of tobacco products and, if so, the dates and locations of all such violations within the previous five years.
6. Such other information as the city manager deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.
D. A licensed tobacco retailer shall inform the city manager in writing of any change in the information submitted on an application for a tobacco retailer’s license within thirty days of a change. (Ord. 950 §1, 2024)
5.40.070 License issuance or denial.
A. Issuance of License. Upon the receipt of a complete and adequate application for a tobacco retailer’s license and the license fee required by this chapter, the city manager may approve or deny the application for a license, or it may delay action for a reasonable period of time to complete any investigation of the application or the applicant deemed necessary.
B. Denial of Application. The city manager may deny an application for a tobacco retailer’s license based on any of the following:
1. The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter;
2. The application seeks authorization for tobacco retailing at a location for which the city prohibits a license to be issued;
3. The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued; or
4. The application seeks authorization for tobacco retailing in a manner that is prohibited pursuant to this chapter, that is unlawful pursuant to any other chapter of this code, or that is unlawful pursuant to any other law; or
5. Any other reason the granting of a license to the applicant that is not consistent with the requirements of this chapter, including the applicant’s history of noncompliance with this chapter and other laws relating to the sale of tobacco products. (Ord. 950 §1, 2024)
5.40.080 License renewal and expiration.
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 their tobacco retailer’s license and submit the license fee no later than thirty days prior to expiration of the current license. A retailer that fails to timely submit a renewal application and fee is ineligible for license renewal and must submit a new application pursuant to Section 5.40.060. (Ord. 950 §1, 2024)
5.40.090 Licenses not transferable, past violations at retail location.
A. Licenses Not Transferable. 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 proprietors.
B. Past Violations. 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 transferred to new proprietor(s) in an arm’s length transaction; and
2. The city manager determines that there is adequate documentary evidence submitted by the new proprietor(s) establishing that the new proprietor(s) have acquired the location in an arm’s length transaction. (Ord. 950 §1, 2024)
5.40.100 License conveys a limited, conditional privilege.
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. Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law. (Ord. 950 §1, 2024)
5.40.110 Fee for license.
The fee to issue or to renew a tobacco retailer’s license shall be established by resolution of the city council and shall be reviewed with the master fee schedule. The fee shall be calculated so as to recover the total cost of administration and enforcement of this chapter, including, but not limited to, issuing a license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, ensure the licensee has a hazardous waste management plan for disposal of tobacco product waste, but shall not exceed the cost of the administration and enforcement of this chapter. All fees and interest upon proceeds of fees shall be used exclusively to fund the administration and enforcement of this chapter. Fees are nonrefundable except as may be required by law. (Ord. 950 §1, 2024)
5.40.120 Compliance monitoring.
A. Compliance with this chapter may be monitored by the city manager or any law enforcement agency. In addition, the city manager may designate additional persons to monitor compliance with this chapter.
B. All licensed premises must be open to inspection by the city manager or designated persons during regular business hours. At the conclusion of any premises inspection, the license holder shall be provided a report, which, among other things, shall note any documented violations and provide the license holder no greater than fourteen days to cure such violations. Any corrections shall be verified via documentation submitted by the license holder and/or in a subsequent inspection after the period to cure has lapsed.
C. Prior to the city manager’s approval or denial of an application for a license, the city manager shall inspect each proposed location for which a complete application for a tobacco retail license is submitted and a nonrefundable application fee has been paid.
D. The city manager shall endeavor to inspect each tobacco retailer at least one time per twelve-month period to ensure compliance with this chapter.
E. The city manager may conduct compliance checks based on allegations of violations received from the public, as resources allow. In collaboration with law enforcement, compliance checks may involve the participation of persons between the ages of eighteen and twenty to enter licensed premises to attempt to purchase tobacco products.
F. Nothing in this section shall create a right of action in any licensee or other person against the city or its agents. (Ord. 950 §1, 2024)
5.40.130 Suspension or revocation of license.
A. Fines, Suspension or Revocation of License for Violation. In addition to any other penalty authorized by law, the following penalties shall be imposed on a tobacco retailer or licensee if the city manager finds, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee’s agents or employees, have violated any of the requirements, conditions, or prohibitions of Sections 5.40.020 through 5.40.050.
1. Upon a finding by the city manager of a first violation at a location, the license shall be suspended for thirty days and the tobacco retailer shall pay a one thousand dollar fine.
2. Upon a finding by the city manager of a second violation at a location within any sixty-month period, the license shall be suspended for ninety days and the tobacco retailer shall pay a two thousand five hundred dollar fine.
3. Upon a finding by the city manager of a third violation at a location within any sixty-month period, the license shall be suspended for one-hundred and twenty days and the tobacco retailer shall pay a five thousand dollar fine.
4. Upon a finding by the city manager of four or more violations at a location within any sixty-month period, the license shall be revoked, and no new license shall issue for the licensee until five years have passed from the date of revocation.
B. Appeal of Suspension or Revocation. A decision of the city manager to impose penalties under subsection A of this section is appealable to a third-party hearing officer designated by the city manager and any appeal must be filed in writing with the city manager within ten days of mailing of the city manager’s decision. The appeal shall comply with the provisions of subsections (B)(1) through (B)(4) of this section. If such an appeal is timely made, it shall stay enforcement of the appealed action. An appeal to a hearing officer is not available for a revocation made pursuant to subsection C of this section.
1. Upon determining the existence of any of the grounds pursuant to this chapter for the suspension or revocation of a license, or the imposition of a penalty for tobacco retailing without a license, the hearing officer shall issue a notice of intended decision to the licensee, or the person against whom the penalty for tobacco retailing without a license is directed. The notice shall be provided by personal service or by first class mail, postage prepaid, and shall include a copy of the affidavit or certificate of mailing.
2. The notice of intended decision shall state all the grounds upon which the revocation, suspension, or imposition of penalty is based.
3. The notice of intended decision shall specify the effective date of the action.
4. The notice of intended decision shall state that the city manager shall give the licensee, or the person subject to the penalty for tobacco retailing without a license, an opportunity to request a hearing thereon. The hearing shall be an informal hearing before the hearing officer. Within thirty days of the hearing, or within ten days if no hearing is requested, the hearing officer shall issue a decision and serve the decision.
C. Revocation of License Wrongly Issued. A tobacco retailer’s license shall be revoked if the city manager 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 5.40.070 existed at the time application was made or at any time before the license issued. The decision by the city manager shall be final. (Ord. 950 §1, 2024)
5.40.140 Tobacco retailing without a valid license.
In addition to any other penalty authorized by law, if the city manager finds, or if a court of competent jurisdiction determines, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer’s license, either directly or through the person’s agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailer’s license as follows:
A. After a first violation of this section at a location, 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), until thirty days have passed from the date of the violation; and the tobacco retailer will be issued a five thousand dollar fine for selling without a license.
B. Notification of this violation will be sent to the jurisdiction in which the tobacco retailer was selling without a license. (Ord. 950 §1, 2024)
5.40.150 Sale of tobacco products to minors.
Any licensee or tobacco retailer who sells, gives, or in any way furnishes to another person who is under twenty-one years of age any tobacco products resulting in an arrest or citation under the California Penal Code shall result in the suspension of the tobacco retail owner’s license pending final disposition of the case. During the period of suspension, the licensee or tobacco retail owner shall be given reasonable notice and an opportunity to demonstrate to the city manager that the tobacco products were not sold, given, or in any way furnished to another person who is under twenty-one years of age.
A. Upon a finding by the city manager of a first violation at a location, the license shall be suspended for thirty days unless final disposition of the case does not result in a conviction.
B. Upon a finding by the city manager of a second violation at a location within any sixty-month period, the license shall be suspended for ninety days unless final disposition of the case does not result in a conviction.
C. Upon a finding by the city manager of a third violation at a location within any sixty-month period, the license shall be suspended for one hundred twenty days unless final disposition of the case does not result in a conviction.
D. Upon a finding by the city manager of four or more violations at a location within any sixty-month period, the license shall be revoked, and no new license shall issue for the licensee until five years have passed from the date of revocation unless final disposition of the case does not result in a conviction. (Ord. 950 §1, 2024)
5.40.160 Additional remedies.
A. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
B. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of twenty-one years, such 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 evidence presented.
C. In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by criminal prosecution by the district attorney and/or administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief.
D. For the purposes of the civil remedies provided in this chapter:
1. Each day on which a tobacco product is distributed, sold, or offered for sale in violation of this chapter shall constitute a separate violation of this chapter; and
2. Each individual tobacco product that is distributed, sold, or offered for sale in violation of this chapter shall constitute a separate violation of this chapter.
E. All tobacco retailers 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 tobacco retailer. (Ord. 950 §1, 2024)
5.40.170 Agreement for administration and enforcement.
The city council may enter into an agreement to provide for the enforcement and carrying out of the requirements of this chapter with the county or any agency, department, or person as the city council may from time to time deem necessary or advisable. (Ord. 950 §1, 2024)
5.40.180 Exceptions.
A. Nothing in this chapter prevents the provision of tobacco products to any person as part of an indigenous practice or a lawfully recognized religious or spiritual ceremony or practice.
B. 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. (Ord. 950 §1, 2024)
5.40.190 Construction and severability.
It is the intent of the city council to supplement applicable state and federal law and not to duplicate or contradict such law and this chapter shall be construed consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this chapter, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases of this chapter, or its application to any other person or circumstance. The city council hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. (Ord. 950 §1, 2024)